author: Marvin, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Oct. Term, 1895.)
    Before Caldwell, Hale and Marvin, JJ.
    JOHN C. ENGEL, GUARDIAN OF ANDREW T. ENGEL, v. THE STANDARD LIGHTING COMPANY.

      Injiory to employe by machinery defective in tivo things — Promise of foreman to repair one of them — Assumption of risk by employe as to the other defect — ■
    1. In an action by an employe against his employer for personal injuries received while operating a stamping press known to be out of repair in two particulars, viz., First, defective clutch, rendering the blank-holder and plunger liable to fall spontaneously ; and second, absence of gauges; the fact that the defendant had promised to restore the gauges, whose absence required plaintiff in operating said press to put his hand under said blank-holder and plunger, will not obviate plaintiff’s voluntary assumption of the • former risk, when it appears that his hand, while so necessarily in the press, was injured by the spontaneous fall of the blank-holder and plunger on account of said defective clutch.

      Same — Knowledge of defects by employer—
    2. Where the petition alleges both said defects, but contains no averments either that plaintiff was without knowledge of the first defect, or that defendant had promised to repair the same, it is not sufficient that the petition avers that defendant had promised to repair the second defect; and the defendant’s motion to exclude evidence was properly sustained. Coal & Car Co. v. Norman, 19 Ohio St., 598.

      Same — Employe accepting foreman’s opinion that defect did not exist.

    3. Where plaintiff had complained of both said defects to his foreman, who thereupon expressed his opinion that the first defect did not exist, but promised to repair the second defect, the plaintiff will be presumed to have known and assumed the risk of the first defect, although he alleges that he believed and relied upon the foreman’s said expression of opinion that such defect did not exist.
    Error to the Court of Common Pleas of Cuyahoga county.
    The petition of plaintiff below, who is plaintiff in error here, is as follows:
    The plaintiff, John C. Engel, says that he is the duly appointed, qualified and acting guardian of Andrew T. Engel, who is a minor, and as such guardian he brings this suit.
    He says that the defendant, The Standard Lighting Company, is a corporation duly organized under the’ laws of Ohio, and at all times hereinafter mentioned it was such corporation,
    He says that on the 21st day of June, 1892, and four months prior thereto, said Andrew T. Engel was in the service and employ of the defendant as pressman, and said Andrew T. Engel was then of the age of eighteen years.
    He says that the duties of Andrew T. Engel, as such pressman, was to press iron sheets upon a press in place to be pressed by the die into a pan-shaped vessel called heat collector, and when the sheets were so placed upon the press, a part of the machine,called blank-holder, was by the automatic action of the machine pressed downward upon the edges of the plate, thereby holding it firmly in place, when immediately following the descent of the blank-holder upon the plate, a plunger or top-die was forced downward upon the plate,and within the blank-holder, and carried the center of the plate downward into the bottom die where the plate was thus, between the top and bottom dies, pressed and shaped into a sort of pan called heat collector.

      He says that the machine and press was driven by steam power, and was originally supplied with guides so placed and situated as to enable the operator, in putting in the plates, to put them in place properly, by shoving them against the guides, by which means the plate would be put in proper place without the operator being obliged to put his hands in the place upon which the plate was required to be, and below the blank-holder and top die. He says that said blank-holder and plunger were arranged so as to be held up and above the press, and to be detained there at the pleasure of the operator, while adjusting the plates or removing the pan after one had_ been drawn, and were so held up by a clutch attached to a pulley and frame of the press, which clutch was operated by a pedal, so that, when the operator desired the blank-holder and plunger to be held up, by operating the pedal this could be accomplished, and as soon as a sheet was in place, or the pan was drawn and removed, by again operating the pedal, the clutch was withdrawn, so as to cause the blank-holder and plunger to be forced downward by the action of the machinery. '
    He says that said guides had, on said 21st day of June, 1892, been broken off and were absent from said press, and that said Andrew T. Engel, while so employed on said date operating said press, was obliged to put his left hand under said press in adjusting the plates thereunder, so as to determine when the plate was in exactly the proper position to be pressed into shape by the dies, all of which was well known to the defendant, its agents and servants then in charge of the shop, who were superintending the operation thereof, and who were in authority over the said Andrew T. Engel as such employe.
    He says that on said 21st day of June, 1892, the said clutch by which said blank-holder and plunger were held up while the plates were being adjusted beneath, became and was out of repair, so that it failed to securely hold up said blank-holder .and plunger till the pedal.was operated.by.said Andrew T. Engel to cause-them to descend, but allowed them.to descend upon the press suddenly, and without any notice .or warning thereof.
    He says that defendant’s.foreman then in. charge of the work being done on the press, had knowledge on said last named date that said clutch was out of repair and failed to hold up said blank-holder and plunger, and also knew that the same had recently before failed, to operate and -had allowed said blank-holder and plunger to fall, and knowing the same, and that said guides were broken off and gone, and that in operating said press it would be necessary for the operator to place his hand beneath said blank-holder and plunger to properly place the sheets, and knowing the clutch was. then out of order and repair, and that said blank-holder and plunger were liable to fall while the operator’s hand was under the press and in a place of danger, ordered and directed said Andrew T. Engel to proceed- to operate said press and to place the sheets thereunder, and to remove the pans therefrom after they had been withdrawn, and said foreman was then and there notified by said Andrew T, Engel and Charles Fay, .who had been operating said press, that said clutch was out of order and said gauges were gone, and that said blank-holder and plunger had recently before fallen because said clutch was out of repair. And said foreman then and there directed said Andrew T. Engel to take the place of Charles Fay, and go on and operate said press in the manner aforesaid, and that he, the said foreman, would have said gauges fixed and replaced in proper condition, and said foreman then and there said to Charles Fay, in the presence and hearing of said Andrew T. Engel, that said clutch was not out of repair, and that the blank-holder and plunger had fallen because Fay touched the pedal; and said Andrew T, Engel then and there trusted and relied upon said statements of said foreman, and each of them, and believed them to- be true.. . -

      He says that thereupon said Andrew T. Engel went to work as so directed, and within half an hour thereafter was in the act of placing a sheet of iron in place under said upper die and blank-holder, when without any notice or warning to him, and without touching said pedal, the said clutch gave way or became disengaged, and said blank-holder suddenly fell with great force and caught his left hand and crushed all the fingers of his left hand,so that the same had to be and they were all amputated at the knuckle joints.
    He says that said injury was caused wholly without any fault or neglect on the part of Andrew T. Engel.
    He says the defendant, its agents and servants, were negligent in the premises in allowing said guides 'to be broken off and in causing said machine to be operated and used while said guides were absent from the machines, and in allowing said clutch to be out of order and repair, and in causing said machine to be operated and used while the clutch was so out of order and repair, and in ordering and directing said Andrew T. Engel to operate said machine while said guides were off, and while said clutch was out of repair and order, and in not putting said guides on said machine,and in not repairing said clutch,and in telling said Andrew T. Engel that said clutch was not out of repair, and in thus inducing him to believe that the same was in proper order and repair. He says that by reason of said injury,said Andrew T. Engel was compelled to and did undergo a surgical operation, and bad all his fingers of his left hand amputated at the knuckle joints; he suffered great pain of body and anguish of mind, and his left hand has been permanently maimed and disfigured, to his damage in the sum of , tweny-five thousand dollars.
    Wherefore plaintiff prays judgment against the defendant-for twenty-five thousand dollars and his costs.
   Marvin, J.

This suit was brought in the court of common pleas of this county by John C. Engel as guardian of his minor son, Andrew T. Engel, against The Standard Lighting Company, asking to recover a judgment for personal injuries received by his ward while in the employ of the defendant The Standard Lighting Company. The petition sets out that Andrew T. Engel was employed by the defendant about a stamping machine. He was employed as a pressman — that was the name of his employment. His business was to put sheets of iron into a stamping machine, and the machine had a platform; there were guards about that so that when the sheet placed into the machine, by these guides or guards which were about the outside, it would push in just far enough and would be held at each side, the right and left, at the right point, so that by laying it upon the table or platform and pushing it forward, it was sure to get into the right place on the machine, without the employe placing his hand under the place where the die came down, and was forced down at the proper time to make indentures in this sheet that was thus placed in the press. The machine, the petition alleges, was out of order at the time that young Engel entered upon his-work at that machine. It was out of order in that the guides were broken and did not properly perform the office which they should have performed,necessitating his placing his hand so far Out upon the iron which was on the table or platform, as that if the die came down while his hand was there, he would receive injury, but that would not have been so if the guides had been upon the machine as they ought to have been. So .that it is said that the employer, The Standard Lighting Company, was negligent in leaving these guides thus out of order. But in addition to that it is said that the die or plunger, which came down upon the sheet of iron,was caused to come down upon it by the operation of a clutch; that that was operated by a treadle. The foot was placed upon this treadle, and that caused the clutch to operate which threw down the die, and that that was out of order. The petition alleges that while this Andrew T. Engel, the young man, the ward, was employed on. the 21st of June, 1892, upon this machine, he did put a piece of iron, a sheet of iron, upon this platform into the machine, and that in order to adjust it and have it in right place, he was obliged to place his hand forward, the plunger came down and injured him, and the suit is brought to recover for that damage.

He says that the foreman who was in charge of this work had knowledge,at the time the ward of the plaintiff was thus employed, that said clutch was out of repair and failed to hold up said blank-holder and plunger, and also knew that the same had recently before failed to operate, and had allowed said blank-holder and plunger to fall, and knowing the same and that said guides were broken off and gone and that in operating said press it would be neccessary for the operrator to place his hands beneath the said blank-holder and plunger to properly place the sheets, and knowing that the clutch was then out of order and repair, and that said blank-holder and plunger were liable to fall while . the operator’s hand was under the press and in a place of danger, ordered and directed said Andrew T. Engel to proceed to operate said press, and place the sheets thereunder, and to remove the pans therefrom after they had been drawn. The sheets of iron were pressed and shaped by the use of this machine into a sort of pan called a heat holder, I believe. “Said foreman was then and there notified by said Andrew T. Engel and Charles Fay, who had been operating said press, that said clutch was out of order and said gauges were gone, and that said blank-holder and plunger had then recently before fallen because said clutch was out of repair, and said foreman then and there directed said Andrew T. Engel to take the place of Charles Fay, and to go on and operate said press in the manner aforesaid, and that he, the said foreman, would have said gauges fixed and replaced in proper condition,and said foreman then and there said to said Charles Fay, in the presence and hearing of said Andrew T. Engel, that said clutch was not out of repair, and that the blank-holder and plunger had fallen because Fay had touched the pedal, and said Andrew T. Engel then and there trusted and relied upon said statements of said foreman,and each of them, and believed them to be true.

The allegation, then, is that the attention of the foreman was called to the fact by the man who had been operating this press that the clutch was out of order,and that the dies were out of order; that the foreman promised that as to the-guides he would see that they were properly repaired; that as to the clutch, he said to the young man: “You are mistaken; it is not out of order, but the falling of the plunger at' the wrong time on a former occasion was because the operator hit his foot against the pedal and caused the plunger to fall;” and under those circumstances Engel went on to operate the machine.

Now,-an answer was filed to this petition which admitted that the defendant was a corporation. It charged contributory negligence on the part of the young man who was injured.

No demurrer was filed to the petition, but when the case came up for trial, objection was made to the introduction of any evidence on the part of the plaintiff, on the ground that the allegations of the petition were not such as to entitle him to a recovery. The court sustained that objection, and the plaintiff not desiring to plead further, judgment was entered for the defendant with costs in the case, and the case comes here for review.

It was urged before us that the petition was sufficient, because so far as the guides were concerned, there was a promise on the part of defendant to repair, and that the plaintiff had a right to rely upon that promise and go on at the risk of the employer. That so far as the clutch was concerned, the employer, the defendant, by its foreman,had stated that the clutch was not out of repair, and that the plaintiff, or the plaintiff’s ward, relied upon that, and had a right to rely upon that.

Now, the petition shows, so far as it shows anything about the knowledge of this clutch being out of repair, that each, the foreman and Engel, had the same information about it. The foreman said to Fay, in the presence and hearing of said Engel, that said clutch was not out of repair. First, the attention of the foreman was called to the fact that it was out of repair. Engel knew about that; the foreman knew about it — -each knew the same. Whether it was out of repair or not, each had the same information about it. The foreman said that if was not out of repair, and that the reason the plunger had fallen, as I have said, was because of the fact that the operator had hit his foot against the treadle. But there is no allegation in this petition that Engel did not know that it was out of repair, and the allegation, as I have said, showed that he knew the same about it as the other man knew, and there was no promise to repair that, but simply it was said to him “It isn’tout of repair.”

Under the case in the 49 Ohio St. Reports, 598, Coal & Car Company v. Norman, it is said in the syllabus:

“In an action by a servant against his master for an injury resulting from the negligence of the latter in furnishing appliances, xr in caring tor the premises where the work is to be done, the plaintiff must aver want of knowledge on the part of the defects causing the injury; or that, having such knowledge, he informed the master and continued in his employment upon a promise, express or implied, to remedy the defects; an averment that the injury occurred without fault on his part is not sufficient.”

Now, that being the law,' and that is the law declared by our Supreme Court, we think this petition does not contain sufficient averments to authorize a recovery upon it. We think that it was proper for the court to say that no evidence could be introduced under this petition, because there is no allegation here] that there was any promise to repair the clutch; nor is there any allegation that the plaintiff didn’t know all about that clutch. We think that the court of common pleas was right in holding that no evidence could be introduced, and we affirm the judgment of the common pleas.

We are cited to a case in the 40th Ohio St. Reports, 148, Manufacturing Company v. Morrissey. The syllabus of that case is:

“M, while using a machine in his capacity of workman for a manufacturing company, acquired a knowledge of its ■defects and consequent unsafe condition. Fie complained ■of its condition to the foreman, under whose orders he was working, and whose duty it was to-see that the machinery was kept in good order and repair. The foreman promised him to remedy said defects, and directed him to go to work on the machine. The workman thereupon remained in the service of the company and continued to use the machine, and in so doing was injured through its said defects before any steps were taken to remedy the same.

“Held, that the workman’s knowledge of the defects in the machine was not, under the circumstances and as matter of law, conclusive of contributory negligence on his part; but it was a fact in the case to be taken into consideration by the jury, with all the other facts and circumstances, in determining the question, whether the workman’s own negligence contributed to the accident by which he was •injured.’’

Without stopping to read further fvom'jthe opinion of the Court, it will be seen that that was a case where there was a promise on the part of the employer to^repair the defective machinery, and the rsliance upon that promise. Here there was only a promise to repair one of the defects, and it would seem that the defect in the machinery by which the plunger was likely to fall,® and did fall,[would be the thing that there should have Lbeen a[ promise to repair in order to authorize this young man to have proceeded and rely upon the company, his employer,to protect!,him; that is to say, proceed at the risk of the employer.

Blandin & Rice, for Plaintiff in Error. Frederick A. Henry, for Defendant in Error.

I think the petition was defective in not stating that the employe did not know of the defective clutch, or else that there was a promise to repair that defective clutch.


source: Caselaw Access Project

author: Laubie J.

license: Public Domain

text:
    (Seventh Circuit, Mahoning County, O., Cir. Court,
    Oct. Term, 1895.)
    Before Laubie, Frazier and Burrows, JJ.
    LAKE SHORE & MICHIGAN SOUTHERN R. R. CO. v. MARY E. YOKES.

      Action for personal injury — Admissibility of statements of party injured—
    1. In an action to recover for injuries to the person, claimed to have been received in a railway collision, a physician who had been employed by the plaintiff to examine and treat her, cannot be permitted to testify, as a witness in her behalf, to statements of the plaintiff as to the cause of such injuries, or that she attributed her condition to injuries received in such collision.

      Same — Examination by physician appointed by court—

    2. In such case, a medical expert, called in by the plaintiff to examine her for the purpose of becoming a witness in her favor, or who examined her for purposes other than advice and treatment, cannot be permitted to testify for plaintiff to complaints or statements made by her on such examination as to her symptoms,condition, pain or sufferings, past or present, as either corroborative of the plaintiff’s testimony, or as evidence of the facts, or as a basis for the expression of an opinion. It is otherwise, if such expert be appointed by the trial court to make such examination at the request of the defendant.

      Same — Statements to non-expert witnesses—
    3. In such case a non-expert, called by the plaintiff, may testify to spontaneous manifestations on her part of a present existing pain, such as screams, groans, or exclamations which are the usual and natural accompaniment of great bodily pain ; but he cannot be permitted to testify to anything in the way of a narrative or statement by the plaintiff of her symptoms, condition, pain or suffering, past or present, even although voluntarily made by way of complaint.
    Same—
    4. The defendant having offered evidence to show that the bodily condition of the plaintiff, as described by her, was attributable to change of life, and that on the day of the collision, and after-wards, upon being asked,if any one was hurt in such collision, the plaintiff had made no complaint of having been hurt herself, it was error to permit the plaintiff, in rebuttal, to call witnesses to prove that on other occasions she had made such complaints to them, and to give in detail statements made by her on such other occasions, as to her condition, pains, and their locality.
    Error to the Court of Common Pleas of Mahoning county.
   Laubie J.

This is a proceeding brought to reverse the judgment of the court below in an action wherein Mrs. Yokes was plaintiff, and the company was defendant, to recover for injuries to her person received in a collision between a passenger and freight train upon the defendant’s road. This collision occurred on the 5th day of August, 1889, and the injuries complained of, as stated in the petition, are that while sitting in the car, and at the time of the collision, she was thrown forward violently upon the seat in front of her, and on the re-bound against the seat she was sitting in, and forward again onto the seat in front; that she was struck violently on the bowels and side, and thereby sustained a great shock, concussion and injury to her stomach, bowels and uterus and appendages thereto, and to her spine and nervous system, causing spinal irritation and nervous prostration, which shortly thereafter developed into uterine trouble and general debility, with reflex heart affection, from which injuries she has been unable to obtain any relief, and her condition has so continued, and will so long as she shall live. The petition also alleges that before that time plaintiff was a healthy woman, and had not suffered from these complaints.

The defendant company answered, admitting that it was a corporation; that it was operating the road in question; that plaintiff had purchased a ticket, and was a passenger on the line of the road, the 5th day of August, 1889, and that the stations of Williamsfield and Andover are regular stations on the line of the road, but denied all other allegations in the petition. And upon these issues the case was tried, and resulted in a verdict of $7585,. 50, for the plaintiff below. It is now sought to have this judgment set aside upon the ground of error in the charge of the court; that the verdict was contrary to the evidence and the law, and for error of .the court in regard to the admission and exclusion of testimony during the trial.

The court charged the jury that the fact being shown of a collision between the trains of the company, was evidence of negligence upon its part; and that is the law as we understand it. Two trains coming together on the same track, —a head collision — is prima facie proof of negligence on the part of the company, and the court therefore committed no error in so charging.

Upon the second exception, that the verdict is against the evidence, there is doubt. Under the evidence it was a very close question, whether the plaintiff had been injured in that accident or not. But that is not ground sufficient for us to upset the verdict of the jury; a mere difference of opinion upon a conflict of evidence alone, would not justify us in setting the verdict aside. The next exception is as to the testimony of Dr. Bracken.

. Dr. Bracken was called to see plaintiff some three years after the injury and prescribed for her, and this question was put to him in chief:

Q. When you were called to see Mrs. Yokes, were you informed as to her having been injured in a railroad collision,and what was said about it? (Defendant objects; objection overruled. Defendant excepts.)

A. I was informed by her that about four years ago she had been injured in a railroad collision. I understood was some where north of where she resides, and she said she had not seen a well day since, and thought it was the cause of her present trouble. (Defendant objects, and asks that the answer be excluded. Objection overruled. Defendant excepts.)

The answer gives merely the statement of the plaintiff —not anything that the witness had ascertained himself, but the statement of the plaintiff. Perhaps the question called for that, and it was therefore objected to, but at least the answer gave it simply as her statement, and that answer was asked to be excluded, the request overruled and exception taken. The admission of this testimony opened the door for all that followed, and a great deal of the same kind did follow. It opened the door for the testimony of Dr. McCurdy, who went into the statement of the plaintiff in regard to her condition, symptoms, sensations, seat of pain, cause of the accident, although he was called as an expert merely, and had examined her for the purpose of becoming a witness; and although there was no specific objection to some of it, it was not necessary for the defendant below to continue to object to that class of testimony; once was sufficient. Indeed, where objection is once made,and the court has established a rule, some courts assert that it is impertinent in counsel to continue objecting.

A physician in a case like this, although called to treat the plaintiff, can only testify to what the plaintiff said as to her physical condition, symptoms, sensations and seat of disease. If this be the rule, then, what was admitted here in Ur. Bracken’s testimony was improper, because it is not a statement of the plaintiff as to her physical condition, her symptoms, sensations, or the seat of the disease, but it is a recital of how the injury was caused of which she wás complaining, and that she had not seen a well day since that injury, and that she attributed her condition to the injury, or that that was the cause.

Chapin v. Marborough, 9 Gray, 244, was an action of tort for injuries received by plaintiff, on the 11th day of January, 1856, from a defect in a highway. At the trial the plaintiff called a physician, who testified that he saw the plaintiff for the first time on the 2nd day of June, 1856, and that the plaintiff showed him his leg,and wished him to examine it. That the plaintiff complained of extreme pain in the leg, and said he had been struck by a horse some number of months before, four or five months before, on that leg. To this narration the defendants objected, but the court admitted the testimony. The verdict was for the plaintiff, and the defendant alleged exception. Metcalf J: “The exception must be sustained,which was taken to the admission of the plaintiff’s statement to his physician that his leg had been struck by a horse. It was a statement of a fact, and was used as evidence of that fact. It was therefore wrongly admitted. The rule of evidence in cases like this, was rightly announced by Mr. Justice Biglow, in Bacon v. Charlton, 7 Cush. 586, as follows: ‘Where the bodily or mental feelings of a party are to be proved, the usual and natural expression of such feelings made at the time are considered competent and original evidence in his favor. There are ills and pains of the body, which are proper subjects of proofs in courts of Justice, which can be shown in no other way. Such evidence, however,is not to be extended beyond the necessity on which the rule is founded. Anything in the nature of narration or statement, is to be carefully excluded,and the testimony is to be confined strictly to such complaints, exclamations and expressions as usually and naturally accompany and furnish evidence of present existing pain or malady.’ The defendants are entitled to a new trial in consequence of the admission of the plaintiff’s statement,”

The Inhabitants of Ashland v. The Inhabitants of Marborough, 99 Mass. 47, was an action to recover money expened in supporting William H. Mainard and his family, and it involved ¿he question whether he was suffering from a disease pyio\ to having -been mustered into the serviee, in July, Í861, So that his bodily condition was the subject of investigation. Among other evidence offered and admitted against the objection of the defendants, one witness, not a physician, testified that “Mainard, while in his employment, before enlisting, one day said that he, had seen Dr. Jackson, who told him that he had got a bad thing on him, and that his kidneys were diseased;” and that on another day, after Mainard had been discharged from the service, the witness asked him what ailed him, and he said his old complaint before he went into the army; and another witness, who also was not a physician, testified that Mainard, before enlisting did not appear like a well man. The jury returned a verdict for the plaintiff, and the defendants alleged exception.

Upon the point that I am now discussing, the court say, Chapman, J.:

’’Evidence of the usual and natural expression of present feelings or emotions is admissible, though it consist wholly or partly of words. But such evidence is not to be unnecessarily extended, and is not to include narration of what is past. A physician who is called as an expert may testify to the statements which a sick or injured person made to him as his patient for the purpose of obtaining his professional aid as to the character and seat of his injuries and sensations and describing his condition and symptoms, but a physician’s testimony cannot include a recital of past events which his patient made to him.’’ Citing 9 Cray, 244, and 6 Allen, 146.

In Roosa v. The Boston Loan Company, 132 Mass. 439, it was held;

“The statement by a patient to his physician of the cause of an injury from which he is suffering is inadmissible as evidence of that cause in an action for the injury.”

Endicott, J., in the opinion says:

“When the bodily or mental feelings of a party are to be proved, his exclamations or expressions indicating present pain or malady are competent evidence, and in Bacon v. Charlton, 7 Cush. 581 and 586, where this rule is stated, it was said by the court: ‘Such evidence, however, is not to be extended beyond the necessity on which the rule is founded. Anything in the nature of narration or statement is to be carefully excluded, and the testimony is to be confined strictly to such complaint, exclamations and expressions as usually and naturally accompany and furnish evidence of a present existing pain or malady. ’ * * *

“In Illinois Central Railroad v. Sutton, 42 Illinois, 438, the plaintiff was ejected from a train. He contended that he had been suffering from disease, and that it was aggravaed by the walk which he was obliged to take by reason of his expulsion. His physician testified as to his condition, and also that he was informed by the plaintiff that his present condition was caused by over-exertion in walking.

‘’The court held that the statements of a patient to a physician of his pain and suffering and in regard to his bodily condition, are competent to enable him to form an opinion as to the extent and nature of his injuries, but that it was not competent for a physician to testify to the plaintiff’s statements as to the specific cause of the injury; that being one of the issues before the jury. * * *

The plaintiff here testified that she was struck in the stomach by the defendant’s servant. The physician in answer to the question, ‘what did the plaintiff tell you about her condition’ replied, ‘she stated that she had received a blow in the stomach.’ It wou’d clearly have been competent for the. physician, after having testified to the condition of the plaintiff, and to the complaint and symptoms of pain and suffering stated by her, to have given his opinion that they were such as might have been expected to follow the infliction of a severe blow'. Such evidence was admitted without objection. But it was not competent for the physician to testify to her statement that she had received a blow in the stomach. While a witness, not an expert, can testify only to such exclamations and complaints as indicate present existing pain and suffering, a physician may testify to a statement or narrative given by his patient in relation to his condition, symptoms, sensations, and feeling both past and present, In both cases these declarations are admitted from necessity, because in this way, only, can the bodily condition of the party who is the subject of injury, and who seeks to obtain damages, be ascertained. But the necessity does not extend to declarations by the party as to the cause of the injury which is the principal subject matter of inquiry, and which may be proved by other evidence. No case has been called to our attention, and we are not aware of any case, where such evidence has been admitted.”

See, also, Emerson v. Gas Co., 6 Allen 146, where the physician was not permitted to testify that the plaintiff said that the inhaling of gas had made him sick. See, also, R. R. Co. v. Newall, 104 Ind. 264.

We think it is clear that a physician, although called to treat the plaintiff, may not testify as to what the plaintiff said as to the cause of the injury, and that the plaintiff attributed her or his present condition to such injury.

Dr. McCurdy was called as a witness by the plaintiff, he having examined her apparently for the purpose of being a witness. It appears there was a commission appointed by the court, during the trial, to examine this lady — Doctors Booth and Dixon. Doctor McCurdy attended this examination, presumably at the instigation of the plaintiff below, because she called neither of the witnesses appointed by the court to make the examination, but she did call him. He wasjpermitted to testify, not only to tne condition of the plaintiff on that examination, but her statement as to the cause of her condition and manner of injury and her symptoms and sensations.

Dr. McCurdy having been called in not to treat the plaintiff, but simply for the purpose of being made a witness, was not competent to testify as to her statements, even as to her present condition. A physician or surgeon called in to examine the plaintiff for the purpose of being examined as a witness, cannot testify in the plaintiff’s behalf,to plaintiff’s statement as to condition, suffering, symptoms or pain, unless appointed by the court to make the examination,

In Wharton on Evidence, sec. 268, the author states the rule generally, thus:

“So when the nature of a party’s sickness or hurt is in litigation, his instinctive declaration to his physician or other attendants during such sickness may be received. Immediate groans and gestures are in like manner admissible. But declarations made after convalescence, or when there has been an opportunity to think over the matter in reference to projected litigation, are inadmissible. Thus, an action for carnally knowing the plaintiff, a girl of ten years, by force, and giving her the venereal disease, the plaintiff’s statements made to a physician three months after the event have been ruled out. ’ ’

In this case, this collision in which plaintiff claimed to have received injury, occurred on August 5th, 1889, and her suit was brought in the first week in July, 1893, almost four years after the accident — and after, as one witness swears, uncontradicted, she had been prompting Mr. Ray, whose wife and babe were in the car, to sue for the injury to the baby, but not claiming she had been injured herself — and the examination was in 1895.

In Darigan v. The Railroad Company, 55 Conn. 285, this is a portion of the syllabus: “The plaintiff offered a surgeon as an expert; the witness had examined the plaintiff’s injury, and in stating the result he testified, against the defendant’s objection, to actions and words of plaintiff while being examined, indicating pain. Held, the evidence was inadmissible.”

On page 309, the judge delivering the opinion says:

“The plaintiff offered a surgeon as an expert. The witness had examined the plaintiff’s injuries, and was asked to state the result of his examination. In doing so, against the objection of the defendant, he testified to actions and. words of the plaintiff while being so examined, indicating pain and suffering. The defendant objected on the ground that'the witness was not consulted by the plaintiff for treatment, but for the purpose of being at some time used as a witness. This evidence was taken subject to the objection, but the court subsequently made no ruling on the subject. We think the evidence was clearly inadmissible. Pierce on Railroads, 298, Grand Rapids & Indiana Railroad Company v. Huntley, 38 Michigan, 537.”

“If otherwise, easy facilities would be furnished for parties to introduce in evidence their own declarations, made out of court, not under oath, and when the temptation to exaggerate, and even to utter untruths, would be pretty strong. Ordinarily, when, a patient consults a physician with a view to treatment, he will state the facts as they are. But unfortunately, when a party consults a physician, preparatory to the trial of his case simply, his statements are not always reliable.”

The case of the Railroad Company v. Huntley, supra, was a case brought by Mrs. Huntley for personal injuries suffered on the 5th day of November, 1874, by reason of an accident caused by a passenger car being thrown from the track and upset, and evidence of what she said about the matter was admitted; and the Supreme Court, in the opinion, pp. 543, 544, say:

“Doctor Ball, who was present with Turner at.both of the examinations, testifies that he was not desired to make and did not make any examination beyond the shoulder, and knew of no further examination. He was asked and allowed to answer what expression Mrs. Huntley made at the last examination, three weeks before the trial, and answered that she complained of pain, and that it hurt her. He also swore that the examination was for the purpose of giving testimony. His evidence further was not very strongly corroborative of Dr. Turner’s view.

“The question is raised whether the expressions of pain were admissible as proof of actual suffering.

“It has been held several times by this court that statements of pain end of its locality were exceptions to the rule excluding hearsay evidence.

“The statements are admitted only upon the ground that they are the natural and ordinary accompaniments and expressions of suffering

“It would be impossible in most cases to know of the existence or extent or character of pain without them. They are received, therefore, as acts, rather than declarations, and admitted from necessity. The rule that admits declarations of present suffering has never been extended so as to include declarations either of past suffering or of the causes in the past of such suffering, so as to make such statements proof of the fact. Declarations concerning the past are narratives,and not acts. Exclamations of suffering may be, and if honestly made, are parts of the occurrence itself.

“It is difficult to lay down any very clear line of admission or exclusion where the exclamation refers to the feelings of the moment; but we think it would not be safe to receive such testimony in any case where it is not the natural and ordinary expression of pain called out without purpose or in the course of medical treatment. The unstudied expressions of daily life, or the statements on which a medical adviser is expected to act, and which, if feined, he should have skill enough to subject to some test of truth, stand on a footing which removes them in general from suspicion.

“But we cannot think it is safe to receive such statements which are made for the very purpose of getting up testimony, and not under ordinary circumstances. The physicians here were not called in to .aid or give medical treatment. The case had been relinquished long before as requiring no further attendance. They were sent for merely to enable the plaintiff below to prove her case; the whole course of the plaintiff was taken to no other end. She had in her mind just what expressions her cause required. They were therefore made under a strong temptation to feign suffering, if dishonest, and a hardly less strong tendency, if honest, to imagine or exaggreate it. The purpose of the examination removed the ordinary safe-guard which furnished the only reason for receiving declarations which must have been made ante litem mot am, which is interpreted to mean not nerely before suit brought, but before the controversy exists upon the facts.”

The case of Quaife v. The Railroad Company, 48 Wis. 513, is cited in many instances to sustain the admissibility of testimony of this kind, but it does not. In that case all of the,physicians called had been appointed by the court a commission to examine the plaintiff, and it was their testimony as to her statement as to her condition that was objected to. It is there said:

“It has been held in some cases that the statements of he kind above mentioned, made after suit brought, should not be received for any purpose, not even for the purpose of in part founding an opinion upon them by an expert. We think, however, the true rule on this point is also stated in the case first above cited. Barber v. Merriam, in 11 Allen. * * *

“It would have presented a different question, if the plaintiff, on her part, without the knowledge or presence of witnesses for the defendant, had called experts to examine her as to her present condition, for the purpose of giving evidence on the trial, and not for the purpose of giving medical advice. In that case the objection would perhaps have been well taken, that in foming an opinion as to her condition, the witnesses should not be allowed to take into consideration her statements made at such examination. In such case the statements would be subject to a suspicion that they were made for the purpose of getting an opinion favorable to her. In the present case, the examination was not sought by her, and her statements were made in.answer to interrogatories put by experts, who are supposed to be impartial, if not hostile to her, and all her statements were made subject to a full cross-examination by the experts, so that there would be very little probability that they would be misled or influenced by any colored or false statements. ”

The case of C., C., C. & I. R. R. Co. v. Newell, supra, is also frequently cited in favor of the admissibility of such statements to whomsoever made, but the point was not decided in that case. In the opinion, p. 271, it is expressly so stated.

In course of examination of the plaintiff’s witnesses, certain questions and answers were excluded as to the declaration of the plaintiff during the period occurring from August 5, 1889, the time of this collision, up to the time of the trial, and her condition and her complaints of the pain and suffering she was undergoing, by persons not experts. Her mother was one. These, while excluded by the court properly in chief, were permitted to be testified to in rebuttal,

In order to ascertain whether this was competent in rebuttal, we must look to the character of the testimony upon the part of the defendant, and what it was offered for. The defendant denied that she was injured at all in the collision, and gave evidence by the witnesses who had seen her upon the same day, directly after the collision, and at other times, showing that they talked with her about it, and asked who was hurt, and that she made no complaint about being hurt herself; and further that her pains, symptoms and physical condition were attributable simply to change of life,' and not to the accident. The subject of investigation was whether she had been injured, and not whether she had made complaints; and this testimony wa3 offered to prove that she not been injured.

How, then, was it competent to rebut this hy evdence that she complained of pains in various parts of the body to other persons on other'occasions? They were simply self-serving declara!ions, and not competent for any purpose.

The bill of exceptions in the case at bar shows:

“Plaintiff offers in evidence a portion of the deposition of Delia Hall, foy the purpose of showing that plaintiff made complaints after the accident, and the pain she sufered,’’ etc.

Defendant objects; objection overruled; defendant excepts.

Q. From what did she complain, and in what way was she troubled; please describe it in your own way? A. She continued to complain all the time of pains in her back, side, and lower parts of the body; was troubled with great nervousness and sleeplesness at times, and at other times would be in a drowsy condition, and a greater part of the time she was troubld with flooding, from which she could obtain no relief, and very frequently she was in very severe pain; so much so, that her outcries could be heard outside of the house, and sometimes nearly half a mile distance.

Plaintiff also offers in evidence a' portion of the deposition of Mrs. Judah Betts, which reads as follows:

Q. What, if anything, do you know about the injury received by Mrs. Yokes, in the railroad wreck of August, 1889, and what her condition has been since? Defendant objects; objection overruled; defendant excepts.

A. I learned soon after it occurred, and came to see her. She seemed to be suffering great pain; said that every breath she took caused her great pains; complained of pain in the chest, back, stomach, bowels, uterus and lower part of the body, and one place on right side on the lower portion of her body in particular she complained of great pain.

Defendant objects and asks that the answer be excluded; objection overruled; defendant excepts.

It is clear that testimony of non-experts, giving the declarations of the plaintiff in the case as to his or her condition, are not now, at least, considered competent, unless they are exclamations, screams, groans, or something of that nature which are the natural and necessary accompaniment of great bodily suffering; and the rule especially excludes all statements made in answer to questions, or by way of imparting information.

All such testimony was permitted merely from necessity, because the parties could not testify themselves; and that was the sole foundation of the exception, grafted upoh the rule which excludes hearsay testimony.

The reason for such exception having ceased,parties being now permitted to testify, the exception itself should cease.

These declarations were not part of the res gesta, as that belongs only to the principal fact, to-wit, the accident itself. If they were, they would have been admitted in chief when offered. At all events, pain of the body is not an act; it is a mere sensation, and hence it can be no res gesta within the meaning of the rule that permits evidence of the declarations of a party as to some act done by him, made at the time of doing the act; but exclamations, cries and groans it seems are still admissable, because they are the usual and natural accompaniment of pain.

In Bacon v. Charlton,7 Cush, supra,at the trial the presiding judge ruled that groans or exclamations of pain on the part of the plaintiff, after the injury, such as “‘Oh! my head,5 at the same time putting his hand to his head,” might be testified to by a non-expert, but that “any statement of his condition or feelings made in answer to a question, or as a narrative, or with a view to communicate information, was not admissible.” And in sustaining this ruling Bigelow, J., p. 556, says; “Anything in the nature of narration or statement is to be carefully excluded, and the testimony is to be confined strictly to such complaints, exclamations and expressions a, usually and naturally accompany and furnish evidence of a present existing pain or malady. * * * The ruüng 0f the court below on this point was strictly in conformity with the rules of law, and was properly guarded and limited.” This case was subsequently approved in Barber v. Merriam, 11 Allen 322, and Roosa v. The Boston Loan Co., supra. And to the same effect see Ashland v. Marborough, 99 Mass., supra.

In Roche v. The B., C. & N. Railroad Company, 105 N. Y., 294, the head notes are as follows:

“In an action to recover damages for alleged negligence causing a personal injury, declarations of the party injured, made some time after the injury, simply to the effect that he is suffering pain, when not made to a physician for the purpose of professional attendance, are not competent as evidence. ’1

So also held: “Whereat the time-of making the declarations the plaintiff showed her arm, which had received the injury, and it was swollen and red. It seems that the rule is different as to groans, screams or exclamations indicative of pain. ”

And in the opinion, Peckham, J., says:

“The only question in this case arises upon the admission of the testimony of a third party that the plaintiff, some days after the happening of the accident which caused her injury, complained that she was suffering pain in her injured arm. ***** The witness did not testify that on these occasions the plaintiff screamed or groaned or gave other manifestations of a seemingly involuntary nature, and indicative of bodily suffering; but he proved simple statements or declarations made by plaintiff that she was, at the time of making them, suffering pain in her arm. The plaintiff was herself sworn, and proved the injury and the pain. The condition of the arm the night of the accident was also proved — that it was very much swollen and black all around it, and subsequently red and inflamed, and cpntinued swollen and inflamed more' or less for a long time.

“The defendant challenges the evidence of complaints of pain thus made, on the ground that it was incompetent, and the argument made was, that the evidence as to the injury and its extent could not be thus corroborated by mere hearsay,

“Prior to the time when parties were allowed to be witnesses, the rule in this class of cases permitted evidence of this nature. 11 N. Y. 416; 28 N. Y. 344.

“These cases show the evidence was not confined to the time of the injury, or to mere exclamations of pain. The admissibility of the evidence was put in the opinion of Judge Denio, in 11 New York, supra, upon the necessity of the case as being the only means by which the condition of the sufferer as to enduring pain could in many instances be proved.

“Substantially the same class of evidence was admitted in England, and for the same reason. After the adoption of the amendment to the code permitting parties to be witnesses, the question, under discussion was somewhat mooted in Reed v. N. Y. C. R. R. Co., 45 N. Y. 574, by Allen, Judge,” * * * The case of Hagenwecker v. C. I. & B. R. R. Co., 99 N. Y. 136, decides that even since the Code, evidence of exclamations indicative of pain made by the party injured is admissible. * * *

“This shows there was no confinement of the evidence to the time of the injury. The evidence given, however, was of screams when the plaintiff’s foot was touched, and of her exclamations of pain whenever the sheet was permitted to touch the foot. * * *

“Having thus admitted evidence of this kind since the adoption of the code amendment permitting parties to be witnesses, the question is, whether there is such a clear distinction between it and evidence of a simple declaration of a party that he was then suffering pain, but giving no other indications thereof, as to call for the adoption of a different rule. It seems to us that there is. Evidence of exclamations, groans and screams is now permitted more upon the ground that it is a better and clearer and more vigorous description of the then existing physical condition of the party by an eye witness, than could be given in any other way.” * * *

“The party can himself be a witness, if living; and if dead, the suffering is of no moment, as it cannot be compensated for in an action by the personal representatives under the statute, and the exclamations of pain, the groans, the sighs, the screams can still be admitted. *, * *

T, M. Sanderson for Plaintiff.

W. S, Anderson & S. L. Ciarle for Defendant.

“For these reasons the evidence of Doctor McElroy, as to the plaintiff’s declarations of existing pain when they were walking in the street together long after the accident, should not have been received.’’

On this question The C., C., C. &, I. Railway Co. v. Newell, supra, is often referred to as sustaining a different doctrine; but the point is not decided in that case. All that is said on the point is mere dicta, and, strange to say, cited Bacon v. Charlton, supra, and Ashland v. Marborough,. supra, are cited to sustain it.

In the case at bar the trial court properly, therefore, excluded this testimony in chief. The contention that the testimony was competent in rebuttal cannot be sustained. It was no more competent in rebuttal than in chief. In Reed v. The N. Y. C. R. R. Co., supra, to rebut the effect of defendant’s evidence that plaintiff had continued to labor after the injury claimed, it was declared that the plaintiff' could not be permitted to prove his own declarations of pain and suffering while so laboring, on the ground that “There is no longer a necessity of giving the declarations of living parties in evidence, which was formerly the reason of the rule admitting them in certain cases, and the reason of the rule ceasing, the rule itself, adopted with reluctance and followed cautiously should cease.’’

The majority of the court think this case should be reversed for the reasons stated. Judge Burrows, while he concurs in the law herein generally laid down, thinks the case ought not to be reversed for the reason that this testimony was not prejudicial, it having been included in other witnesses’ statements; and that the testimony in rebuttal was perhaps competent to rebut any claim made, or that might have been made, that she had not complained of pains and suffering.

Reversed and remanded for further proceedings.


author: Smith, J.

text:
    (First Circuit, Hamilton County, O., Circuit Court,
    Nov. Term, 1892.)
    Before Cox, Smith and Smith JJ.
    CHARLES E. ELSTNER v. LOUISA E. FISHER AND OTHERS.

      Appeal — Suit for foreclosure and personal judgment — Parties in interest, when may appeal —
    Where the petition asks for foreclosure of mortgage and also for a personal judgment against the mortgagor on his notes, the case is triable by jury, and not appealable. But where other lien holders are made parties claiming the property or fund, against whom no personal claim is made, and who set up their rights, such parties have a right to appeal from a decree affecting their interests.

      Suits in partition appealable—

    Since the revision of 1880, which brought partition, dower, mandamus etc.,under the form of proceedings in civil actions,all partition cases are appealable.
    Appeal from Court of Common Pleas of Hamilton County.
   Smith, J.

It appears from the record, that two actions concerning the real estate in question were pending in the court of common pleas of this county, and by order of the court, (whether properly made or not,is not in controversy now,) the two were consolidated, and therefore proceeded as one case.

The first of these two actions was No. 70613, and was brought by Joseph Elstner Jun.,and others for the purpose of foreclosing a mortgage held by them, given by one of the heirs at law of John Elstner, deceased, on his interest as such heir in the real estate of which his father, John Elstner, was seized at his death. It also asked for a judgment against him for the amount of the notes the mortgage was given to secure- — -not in separate causes of action, but in the general prayer for relief. Other persons claiming an interest in said real estate, by way of lien or otherwise, were made parties defendant to the action, and among others, the administrator of John Elstner, dec’d, who, as has been said, owned the land at the time of his death, and the same had never been sold by his administrator or heirs at law. The defendants, who claimed liens on the property, filed their answers and cross-petitions.

The other action (No. 82,805) was one brought by C. E. Elstner, one of the heirs at law of said John Elstner, dec’d, for the partition of the same property. The other heirs at law were made defendants, together with a large number of other persons who had or claimed liens on the same, who were brought in during the pendency of the action and asserted their liens on the property. The administrator of the estate of John Elstner, dec’d, was also made a party,and on his death, the administrator de bonis non of his estate, who filed an answer, and also, under the provision of sec. 6173-4 Rev. Stat., filed a statement from the probate court, showing money needed to pay the debts of their intestate; but this, it is said, was afterwards revoked,

After the cases were consolidated, a final decree was rendered by the court of common pleas, by which it was adjudged that the proceeds of this real estate were to be appropriated to the payment of the mortgages given thereon by the heirs of John Elstner, to the exclusion of any claim cf' the administrators to receive the same, or any part thereof, to pay the debts of the intestate. From this decree the administrator appealed. Was such appeal good,or must it be dismissed ?

If the administrator of the estate of John Elstner was a proper party to either of such actions, and either of them was appealable, it would seem that the motion should be overruled. He was, in our judgment, a proper party to the foreclosure suit. It was one, the result of which, if the claim was successful, would be to apply the land in question to the payment of the debts of the heirs cf the intestate, while it was first liable for the payment of the debts of the true owner; and as against the debts of the father, neither the heirs or their assignees could acquire a good title to the land. The administrator represented those debts,- and was denied to have from the land, or its proceeds if sold, a sum sufficient to pay the debts of his intestate, if it would realize so much. And if the administrator was a party to a suit of this kind, a decree shutting him out from such right, would be a bar to his further assertion of the claim, and these are strong reasons why he should be allowed to appeal therefrom, precisely as any other party in the case.

But] the claim is made by counsel filing the motion, that, as the petition of the plaintiff asked not only for a foreclosure of the mortgage, but asked for a personal judgment against the mortgagor on the notes given by him, that the case is one in which a jury trial is demandable, and therefore is not appealable. It is clear, we think, under the decision of the Supreme Court, that where the plaintiff holding the [mortgage and notes, seeks to recover against the mortgagor, a foreclosure and also a personal judgment, as to these parties the case is not appealable. But we understand the rule to be different where other lien holders or persons claiming the property or fund are made parties, against whom no personal claim is made, and who set up their rights thereto. In this case we think they have the right to appeal from a decree affecting their interests. See 31 Ohio St., 568.

The same, it seems, would be the case if the decree were in the partition case. In my judgment, since the revision of 1880, which brought partition, dower, mandamus and others under the form of proceedings in civil actions, all partition cases are appealable. But this was not a mere statutory proceeding. There were conflicting rights and equities set up by lien holders, and such were always appeal-able.

But we may say that judging from the statements of counsel as to the facts of this case, it seems to us that it will be difficult, if not impossible, for the administrator to take much benefit from the appeal. But this can not affect his right to do so. A majority of the court is of the opinion that the motion to dismiss the appeal should be overruled.-

Hollister, Roberts & Hollister, for motion.

McDougall & Goodman contra.

Judge Cox dissents, thinking the case is not appealable.


author: King, J.

text:
    (Sixth Circuit, Lucas County, O., Circuit Court
    Jan. Term, 1895.)
    Before Scribner, Haynes and King, JJ.
    THE CITY OF TOLEDO v. GRASSER.

      Break in sewer by negligence of city, damaging adjacent building— Proper measure of damages—

    Where by the neglect of the city in constructing and keepipg in order and repair, of a sewer, water percolates from a .break in such sewer into the surrounding ground, causing the lot of an abutting owner to settle, whereby the walls of his building on such lot are cracked and damaged necessitating rebuilding the same, the measure of damages to which such abutting owner would be entitled,' would be the difference' in the value of such building before and immediately after such injury, and not the amount which such owner paid out for repairs.

      Same — Interest on amount of damages—
    Interest on the amount of damages found, up to the time of the verdict, may be included in the amount of the damages on account of the delay in paying plaintiff’s claim, as apart of the damages; and if computed at all, it should be from the time plaintiff suffered the injury which caused the depreciation in the value of his property.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

Joseph Grasser brought an action in the court of common pleas of this county and recovered a judgment for the sum of $833.71 against the city, and this proceeding is to reverse that judgment, for errors assigned in the admission of testimony offered by the plaintiff below and admitted by the court, and for errors assigned in the charge of the court and in giving the requests asked by the plaintiff below.

The plaintiff claimed in his petition that he owned a lot on the corner of Ottawa and Lafayette streets, in Toledo, on which was constructed at the time named a brick building two stories high, and with itd two outside walls running along upon the lines of Ottawa and Lafayette streets, respectively, and that Lafayette street crossed Swan creek about ninety feet from Ottawa street; that the plaintiff’s lot extended back from Ottawa street a distance of ninety feet, which would bring it, according to the photographs given, to the bank of Swan creek; that the city of Toledo had constructed across Swan creek, upon Lafayette street, a bridge somewhat higher than the ordinary level of the territory at that point, and had filled in the street between the abutment of the bridge and the side of the creek next to the plaintiff’s property and Ottawa street; that the filling of that lot had not been of proper material, but that it had been filled in with brick and stones, and sticks, and timber; and that sometime in the year 1888, the city, in pursuance of legislation, improved Ottawa street by paving it with stone sixty-three to forty-three feet in width at different places, and had stone sidewalks laid; that at the intersection of Ottawa street and Lafayette street, for the purpose of draining Ottawa street from Clayton street to Ottawa, and Ottawa street from Broadway to Lafayette, and taking off the surface water that ran over this pavement, it had constructed catch basins and an inlet upon either side of Ottawa street, and connected these catch basins or inlets with a sewer running from Ottawa to the center of Lafayette street to Swan creek, and conducted the water from that place through a fifteen-inch sewer pipe; that the sewer pipe was placed beneath the surface about eight feet, and was constructed across Ottawa street, down the center of Lafayette street, and under the same from Ottawa street to and through the abutment of the bridge before described; that near the said abutment of the bridge the defendant constructed at the same time a catch basin or manhole, from which the condition of the sewer could have been easily ascertained if the proper attention had been given; that at the time of the construction and improvement of the property by him this property was in good repair and condition for business purposes, and the walls and foundations were in proper condition and adequately supported, and protected the building, and would probably have remained so for many years, had it not been for defendant’s want of care and negligence; that the building was of great rental value to the plaintiff, and that he did rent it for a profitable rental; that it was the duty of the defendant to keep said abutment and drain in proper condition, and said sewer pipe free from obstruction, so as to carry off water. That shortly after the completion of the said improvement, in neglect of its duty, the defendant allowed the said sewer pipe to become out of repair and broken and clogged up, and choked, so that the water rushed out of sáid pipe some few feet before it reached the abutment of said bridge; that thereupon the abutment at once settled and bulged out into and orer the stream, and away from the line upon which it was constructed, and the earth near the abutment began to and did settle down upon it and further to press out and bulge the same; that as the result of this bulging out and settling of the earth and other causes, the sewer and drain pipe became more out of repair, and broken at or near the point where the same entered the catch basin heretofore described; that the water accumulated in these streets and elsewhere, and ran through this sewer pipe until it reached this break, instead of being discharged into the creek where it was designed to go; ran over through the side, and directly through the street into the foundation of the plaintiff’s building, whereby the walls became cracked and broken, and failed to perform the duty that they were constructed to perform, and in general terms, alleging in the petition that it amounted to a destruction of a portion of the walls of this building. It is set out in the petition with great detail, but that,in substance, was the complaint he made, that the city had constructed the sewer; that either by its negligence in the construction of the street, or by failing to examine and inspect it, as it ought, allowed it to become out of repair, whereby the water which should have fallen into the creek had turned off to one side and gone into the basement of plaintiff’s building, and destroyed the walls thereof, whereby it was necessary to repair them.

These allegations of negligence are denied in the answer, and it is averred that the city had no notice or knowledge of any of said defects,if they existed, and that any injury sustained by the plaintiff was occasioned by the plaintiff’s own negligence.

There was no reply to this. Probably none was necessary, as the principal question in issue was raised fairly ■ by the petition and the answer.

On the trial of the case it appeared in evidence that Grasser at a certain time had employed a man to take down the walls of his building, and rebuild it from the foundation up to the second story, or second floor; that is, a portion of the walls that were abutting on Lafayette street, and the rear wall next to the creek. And one of the questions involved in the case, assuming the negligence of the city to have been proved, was the damage that had been sustained by the plaintiff below on account of this injury to' his building; and the plaintiff called a witness by the name of Kissinger, for the purpose of showing the amount of damage, and asked that witness this question:

" “From your experience and observation,what do you say was the value of the work and labor done and material furnished in the taking down and putting back of that.building in its former condition?’’

There was some discussion back and forth between the counsel and the court about that question, but it was modified to include what it would be reasonably worth. The stenographer made this notation: “This addition was made, to-wit: “What do you say it would be reasonably worth?” So that the question would read: “What do you say it would be reasonably worth, from your experience and observation, to perform the work and labor and furnish the material in the taking down and putting back that building as in its former condition?” The witness answered that it would be worth $1,200, Soon after this the plaintiff was called, and after testifying generally about the matters in controversy, he was asked this question:

“You may state, if you know, to what extent you were put to expense — suffered damage and put to expense — for the repair of this building, as the result of these cracks in it?” (Objected to; overruled; defendant excepted). A. Well, $1,038.”

There were one or two other questions relating to the same subject; and on cross-examination he repeated the fact that hé paid out $1,033 to rebuild these walls.

That is all the evidence there is in the record as to the damages sustained by the plaintiff. All those questions are objected to, and exceptions taken to the ruling of the court. So that it fairly appears that all the evidence that the plaintiff offered below in the trial of this case to show the damage to his building, and the injury which he had sustained in consequence of the negligence of the city in maintaining its sewer, was this, the reasonable worth of building these walls and putting these repairs' on the building; and the amount which he had actually paid for the rebuilding the walls as he did rebuild them. That was the effect of the evidence which was offered in the case. And it seems to the court that these questions were objectionable. They did not call the attention of the witnesses,nor did they convey to the jury, any information upon the question which they were to try, which finally was, how much less valuable was the plaintiff’s property in consequence of the injuries to his building from the water that had flowed into it through this defective sewer? Of course,that would also be limited by the question of the knowledge of the city and the negligence of the city, affecting the amount which might be recovered against it. But that was the measure of damages to be considered by the jury and to be inquired of from the witnesses; or the difference between the value of the building in the condition that it was before it was injured from this water, and its value immediately after this injury had happened to it. That could have been gotten at in either one of those two ways. But it has been well Settled that the attention of witnesses must be drawn directly to the value of the property before and after the injury,and it becomes wholly a matter of opinion, to be governed by the experience and knowledge of such subjects as the witness can have.

This being the only evidence there was in the case, the court charged the jury upon the subject as follows:

“But for damages, if you find damages to have accrued to plaintiff as charged, from water carried and discharged against ornear to the building and premises of the plaintiff, to his injury, whatever injury he sustained by reason of that, not before, but after the city had notice,either express, or notice in fact, or was chargeable with notice by way of implication, as we have heretofore described — alter that, and after a sufficient time to enable the city to do its duty and make repairs, whatever damage after that time shall elapse, you shall find the plaintiff to have sustained to his building by reason of water coming through this sewer, for such an amount it would be your duty to return a verdict in favor of the plaintiff. And if you find a verdict in favor of plaintiff, gentlemen, you will find in such amount as in your judgment will compensate the plaintiff fully for the damages which, by reason of the waters discharged from this sewer, after the city has had notice, and was chargeable with notice, and should have made repairs — for such damages, and such damages only, you may estimate a proper compensation to the plaintiff.”

That is excepted to. That in and of itself is not erroneous, although there is not a particle of evidence in this record upon which the jury could apply that charge, because there was no evidence of that kind of damage shown by the plaintiff. In-addition, at the request of plaintiff, the court gave certain charges, which were objected to and excepted to by the city. They are as follows:

”3. When a drain has been constructed by a city, it is its duty to keep the same in repair, and the city is liable for any damages caused by its neglect to do so.

“5. The whole duty of the city is not discharged by repairing breaks in such a drain of which it had actual notice. Beyond this it'must exercise reasonable care to prevent their occurrence, by reasonable inspection.

”6. If you find for the plaintiff, you must add interest upon the amount you find him to have been damaged, computing the same from the time the expense to correct the injuries was necessarily incurred by him.

“7. If you find that there were evidences that something was wrong in the street from the effects upon the street, the pier and the buildings, and that the same were caused by the breaks in the sewer, and that that condition continued long enough for the city, with ordinary diligence, to have found it out, it was the duty of the city to ascertain the cause of the effects without unnecessary delay, and if it failed to find such cause when it could have done so with reasonable diligence, and to correct the same, it failed to perform a duty imposed upon it by law; and if the plaintiff was injured by such failure, your verdict must be in his favor.”

To the third and fifth requests as given by the court there is no particular objection, although the whole duty of the city is not stated in those requests. The sixth is erroneous, for the reason that it authorizes the jury to find a particular and substantial amount of damages, and to compute interest upon that amount, as a part of their verdict, and to compute it from the time when the expense to correct the injuries were necessarily incurred by the plaintiff. If interesáis proper in a case of this kind, the time that the court fixed from which it should be computed indicates clearly that the court had in its mind the same thing that it had in the admission of this testimony, to-wit: that the expense that the plaintiff had paid out for rebuilding these walls was the material thing which the jury should pass upon; and when he had paid out so much money, he had a right to bring his bill, and sue upon it to recover the money expended, which, as we have said, is not correct. We think it is not erroneous to say that interest may be included by the jury, but if included it should be on account of delay in paying 'the claim which was made by the plaintiff as a part of the damages, and not distinguishable separetely as interest. It should be considered by the jury in estimating the amount of damages which the plaintiff had sustained, but that it should be computed from the time when the plaintiff paid out this money is not true. If computed at all, it should be from the time the plaintiff had suffered the injury which caused the depreciation of the value of the property.

The seventh request includes a part only of the facts in issue, and says to the jury, if they find these facts to be true, they must find a verdict in favor of the plaintiff. That was erroneous, and clearly so, and misleading to the jury. They were told that if they found these things to be true that their verdict should be for the plaintiff. Of course there would be nothing left for them to do but to find for the plaintiff the amount of damages, based upon the erroneous evidence which had been admitted; the amount the plaintiff had expended in rebuilding the building, and without regard' to the condition in which it was placed, whether it was worth more or lessjthan^beforejjhfe water injured it.

J, H. Tyler, for City.

W. IT. A. Bead, for Defendant in Error.

For admitting that testimony, and giving the requests which were given by the court to the jury bearing upon the question of damages, and as to the right of the plaintiff to recover, we think this judgment should be reversed, and the case remanded to the court of common pleas for a new trial; and that will be the order.


text:
    (First Circuit, Hamilton County, O., Circuit Court,
    Nov. Term. 1893.)
    Before Smith, Swing and Cox JJ.
    DAVID SMITH v. JOHN J. SMITH.

      Defective Transcript from J. P. — May be amended—

    An accurate copy of the record of a Justice of Peace, properly signed but not certified maybe amended under Sec. 5114 Rev. Stat., on .proper motion to the court.

      J. W. O’Harra, for Plaintiff in Error.

      Irvin & Messinger, for Defendants in Error.
   Smith, J.

We are of the opinion that the paper filed with the petition in error in the court of common pleas, and which is conceded to have been an accurate copy of the record of the justice of the peace in the case, the judgment in which was sought to be reversed, and which paper purporting to be a transcript of the record, was signed, but not certified in the usual form by the justice who made it,was such a transcript as might properly be amended under Sec. 5114 Rev. Stat., and that under Sec. 6731, the court had power in such case to require a complete transcript to be furnished. And that when a true and correct transcript, as conceded, was produced to the court and permission asked to file it,it should have been allowed in furtherance of justice,and the refusal to do so, and the dismissal of the petition in error, on the ground that there was no sufficient transcript, was erronous, and such judgment should be reversed.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas County, O., Circuit Court
    Sept. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    HENRY RUDI v. GUSTAVE LANG.

      Cattle breaking out without owner's fault — Damage to neighbor’s field — Right to detain cattle until damages paid—
    Where cattle are* not allowed to run at large by the owner, but without his knowledge and fault break out and enter a neigbor’s field, doing damage, it does not amount to a violation of Sec. 4202 Rev. Stat., and such neighbor has no right to take possession of the cattle and refuse to deliver the same to the owner until his damages are paid.

      Sams — Replevin of cattle — Damages of defendant not proper counter claim,—
    In an action of replevin for such cattle, the party detaining the same can not set up,by way of counter claim, the amount of his damages.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

In this case a petition in error is filed for the purpose of reversing or modifying the judgment of the court of common pleas in a matter arising out of certain facts set forth in the petition,the record showing substantially this state of facts: Rudi was the owner of some stock — cows—and pastured them in a lot upon his place in the township of Sylvania. The record shows that this lot was properly enclosed, and that the cattle were in the lot,and were seen there as late as four o'clock in the afternoon. They were then near a fence which led towards the house, and, as the witness testified, seemed to be thirsty and wanted to go up to where the well was. A couple of hours afterwards a young man belonging to the family, went out to look for the cows, and finding that they were not in the pasture, he looked around and discovered that the gate in thefence which ran from the pasture to the road, was broken down, and that the cows,evidently, had gone through that. He immediately started to find .the cows, and did find them. I think, however, that he went back to the house, probably to get the hired man, and they started out to find the cows,going down the road a little ways, to an open gate upon that road, which led into the premises of a neighbor, and passing through this gate, they found the fence down that led from this lane into the lot of this neighbor and connected with an adjoining lot, and the cattle had wandered into that, and finding a potato and cucumber patch, they were making themselves at home.

The owner of the premises,in the meantime, had discovered the cows, and had shut then up in his yard, and when the hired man and boy came after the cows, he refused to give them up unless they would pay him for the damage that they had committed, and I don’t know but some costs and expenses. Thereupon the owner of the cows proceeded to replevin them. The case before the justice went by default, I think,and came into the court of common pleas; and upon the trial there had, there were two issues presented. The first was as to the right to recover the cattle; and the other was a claim set up by the defendant — Lang—for damages; and that appeared to be a question of the construction of the statutes, and after the charge of the court, the jury returned a verdict in which they found for the plaintiff, and that he was entitled to the immediate possession of the cattle; and on the claim for damages, they rendered a verdict of five dollars, and notwithstanding the objections of the counsel for the plaintiff, a judgment was rendered by the court upon that verdict. ■

There are two or three statutes bearing upon this question; The first is Sec. 4202, which reads as follows:

■ ■ “No person or corporation, being the owner or having-the charge of any horses, mules, cattle, sheep, goats, swine, - or geese, shall suffer the same to run at large in any public road or highway * * *.

And further on:

“And any person violating the provisions of this section shall forfeit and .pay for every such violation, as penalty therefor,not less than one dollar nor more than five dollars; continued violation, after notice or prosecution,shall be held to be an additional offense for each and every day of such continuance. ”

That is under the head of “Animals.”

Under the head of “Fences,” (Sec. 4251) there is this provision:

• “If any horse, mule,ass, neat cattle, hog, sheep, or goat, running at large, break into or enter any inclosure, other than inclosures of railroads, the owner of any such animal shall be liable to tie owner or occupant of such inclosure for all damages occasioned thereby; and the animal so breaking into or entering any inclosure shall not be exempted from execution issued on a judgment rendered in any court, or before an officer having jurisdiction, for damages occasioned by such trespass.”

The court, under the first section, in its charge gave to the jury some requests asked for by the defendant; he practically charged the jury in that case, that if they found that the cattle were not suffered to run at large by the owner, he would not be liable for any penalty; and he further charged the jury, that in any event, the owner of the premises would not have a right to detain the cattle as against the owner. Acting upon that, the jury returned a verdict for the plaintiff,and found that he was entitled to the right of possession at the commencement of the action.

Upon that we think there is no question but what the court charged rightfully. It has been decided in the seventh Circuit,reported in 4th Cir. Ct. Reports,that the rule of the common law, in regard to the taking up of animals found trespassing upon premises, does not obtain in Ohio, and we suppose that ruling to be correct.

The error that the court fell into, if it fell into any error, will be found further on in the charge. I will read from that:

“Now, as to the damages. If you find that these cattle were running at large, unlawfully,under section 4202, then., although the defendant had not the right to detain this property until the damages, whatever they may have been, were paid, still, under his cross-petition in this case, you would be entitled to determine the question whether such damages, were sustained, and whatever amount you find, if any, that was sustained from the cattle at the time — that is, at the time of the trespass for which they were taken up — you would be entitled to render a verdict against the plaintiff for such damages. And in addition to that, if you find any, that is without regard to the question, whether the defendant’s land was fenced or not — because so says the statute; but there is another provision to which I will call your attention, and that is section 4251:

“Sec. 4251. If any — -neat cattle — running at large,break into or enter any inclosure,other than inclosures of railroads, the owner of any such animal shall be liable to the owner or occupant of such inclosure for any and all damages, occasioned thereby. ” .

And even if you should find for the plaintiff, that the defendant did not properly take up these cattle, and that the plaintiff was entitled to the possession of the property, still you would then go to the inquiry whether the defendant’s lands were enclosed. If they were enclosed, he could not recover any damages, unless he recovered them under section 4202; but if they were running at large,and if his lands were enclosed, then he would be entitled to recover any damages that were sustained at the time of or in connection with the breaking in at this time under question, and you have already been advised during the progress of this trial —whether rightfully or wrongfully, it is not for you to determine. — .that it is only in any - event for damages in connection with this breaking and entering of the cattle into the defendant’s land, that you can assess any damages.’’

We are unable to see or discover any principle of law upon which this judgment for five dollars cau be sustained in this case. The testimony shows that the cattle were not running at large upon the street — were not generally running at large. I think it shows that the cattle broke out without knowledge or fault on the part of the owner, and the case stands here as one where the owner of the land undertook to take possession of these cattle for alleged wrongs that he had suffered from the cattle. The jury by their verdict, found that the cattle were not violating the statute, and as a necessary corollary to that, it results that he had no right to detain the cattle, and had no authority to detain them, We are a little at a loss to know upon what theory the court proceeded; but it would seem that the court supposed that these damages would be a matter that would be subject to a counter-claim, and that the verdict would be sustained upon the principle that there was a right of action on the part of defendant, and that that was a proper subject for a counter-claim. We are unable to find any principle upon which a counter-claim can be sustained. The owner of these premises was detaining these cattle wrongfully. The case stands very much as if a person owing another should have possession of his cattle, and the creditor should undertake to keep possession of these cattle until his debt was paid, and then upon the replevin of the cattle by the owner, he should set up the amount of his debt as a counter-claim. There is no connection between these transactions, and we see no connection in the transactions set forth in the case at bar which would sustain this claim as a counter-claim, and, for that reason, the judgment of the court of common pleas will be reversed in so far as it rendered a judgment against the plaintiff for five dollars and his costs of the action, and as to the balance it will stand affirmed.

J. O. Jones and M. B. Lemmon; for Plaintiff in Erfor,

L. H. Pike, for Defendant in Error.


author: Day, J.

text:
    (Third Circuit, Paulding County, O., Circuit Court
    Oct. Term 1896)
    Before Day, Price and Rohn, JJ.
    L. MILLER, et al. v. SOLOMON ALBRIGHT.

      Appeal to Circuit Court — Notice—Duty of Clerh of Court—
    1. The entering of a judgment or order of court is a ministerial act which, by provision of the statutes, is required to be done by the clerk of courts,and consists in spreading upon the records a statement of the final conclusion reached by the court in a pending matter.

      Same — What sufficient—

      % Under section 5227 R. S.. “Notice of an intention to appeal the cause to the Circuit Court,” is in time, if entered on the record within three days after the judgment or order, desired to be appealed from, is entered.
    Same—
    3. A judgment or order, and as well, notice of intention to appeal, is, in law, for all purposes of appeal, entered upon the record, at the time a proper entry thereof is formulated and given to the clerk to be entered of record.

      Same — Neglect of Clerk to enter — Effect—
    4. Where a proper entry of a judgment or notice of intention to appeal, is prepared and delivered to the clerk, within the time fixed by the statute, to be entered of record, and the clerk, from any cause, fails and refuses to so enter it, it is not error for the court at a later day of the same term, on motion and evidence duly submitted for that purpose, to order and require the clerk to enter the same upon the proper record as of the date it was prepared and delivered to him.
    Error to the Court of Common Pleas of Paulding County.
    In an action in the common pleas court, by Solomon Albright, plaintiff, against William Albright and others, defendants, there was a contest as to the validity and priority of liens. The cause was tried and disposed of about April 28, 1896, by a finding and decree favorable to the contesting defendants, determining and fixing their liens as prior to that of plaintiff, and ordering these first paid out of the proceeds of the sale of the real estate against which the several liens were asserted. At the time the decree was rendered, plaintiff, in open court, orally announced his intention to appeal the case to the circuit court, and the court indicated the amount of the undertaking for appeal. On May 2nd, 1896, an entry of the decree, fixing priorities of liens, and of plaintiff’s notice of his intention to appeal the cause to the circuit court, was prepared, and given to the clerk to be entered on the journal. - Objection was made to the entering of plaintiff’s notice of intention to appeal, by counsel for defendants, and the clerk only entered . on the journal the decree fixing priorities, and omitted and refused to enter the notice of bis intention to appeal and the fixing of the penalty of the bond by the court. Later, at the same term of the court, on plaintiff’s motion, the court made an order requiring the clerk to enter on the journal the omitted portion of the entry as originally formulated and furnished to the clerk; which requirement the clerk complied with. The evidence had on the hearing of the motion is brought onto the record by a bill of exceptions, and a proceeding in error is prosecuted here, to obtain a reversal of the order and a correction of the record, by eliminating therefrom all that portion which shows notice of plaintiff’s intention to appeal the case to the circuit court.
   Day, J.

The only question raised and urged by counsel for the plaintiff in error, is as to the sufficiency of the notice of appeal. Was is given in time, and in the manner provided by law; so that the statutory requirements were complied with and an appeal perfected? Jn this respect the statutory provision is, Sec. 5227, Revised Statutes: “A person desiring to appeal his cause to the circuit court shall, within three days after the judgment or order is entered, enter on the records notice of such intention, etc.” Whether or not the notice of intention to appeal was sufficient in point of manner and time of entering on the record, depends upon the proper interpretation of the words of the section: “A party shall enter on the record notice of his intention within three days after the judgment or order is entered.” What is entering a judgment,, and what acts must a party perform to accomplish the entry of his .notice of intention to appeal on the record? As to the first proposition there is some confusion; the rendition, of a judgment and fhe entry, thereof being sometimes regarded as the same act. But this is not true at all, as the two acts are essentially different. The court renders judgment; i. e., gives judgment; but it does not enter judgment. The entry of a judgment is a clerical or ministerial act, and, by provision of law, is required to be done by the clerk of the court, and consists, of writing or recording it in the journal. In Black on Judgments, page 106, the rule is clearly stated as follows:

“The rendition of a judgment is the judicial act of the court pronouncing the sentence of the law upon the facts in controversy, as ascertained by the pleadings and the verdict. The entry of a judgment is a ministerial act, which consists in spreading upon the record a statement of the final conclusion reached by the court in the matter, thus furnishing external, incontestable evidence of the sentence given, and designed to stand as a perpetual memorial of its action. ”

If this interpretation is correct, then the act of recording the judgment on the journal of the court, by the clerk, is entering it, and a notice of intention to appeal is in time, under the provision of section 5227, Revised Statutes, if entered on the record within three days after the judgment is entered or recorded.

The party desiring to appeal his cause to the circuit court must enter on the record notice of his intention, says the section. It certainly was not the intention of the law making power, in formulating this section, to require the performance of an impracticable or impossible thing; and inasmuch as a party has no possession or control of the record, and cannot porperly perform the physical act of writing his notice of intention to appeal therein, it seems apparent such strictness of construction is not intended, but that liberal and reasonable interpretation is required, to the end that the remedial provision be not defeated or rendered unavailable. What, then, must a party do — what acts must be performed to accomplish the statutory requirement of entering his notice on the record? All a party can do, with propriety, is to formulate a statement; i.e., prepare an entry, showing notice of intention to appeal his case to the circuit court, and deliver it to the clerk of the court and request its entry on the record. This being done, it becomes the official duty of the clerk to enter it on the proper record, and in contemplation of law it is so entered, at least for all purposes of appeal. And this is so, notwithstanding the clerk, from any cause, may omit or refuse to spread it on the record for a time, and until required to do so by an order of the court, made on motion and hearing for that purpose. These observations apply as well to the entry of the judgment or decree rendered in the cause. In either case, when an entry is formulated, and given to the custodian of the record, with a request to enter on the proper record, it is, in law, for purposes of appeal, entered of record. In such case the party has done all he can do; all that is, by law, required of him in that rebpect, and if he has also complied with the other requirements of the section by giving a proper bond within the time limited, an appeal has been accomplished.

Snook & Wilcox, for Plaintiff in Error.

H. C. Glenn, for Defendant in Error.

On the facts, as made to appear by the bill of exceptions, we are unable to discover that error has intervened to the prejudice of the plaintiff in error, and the judgment is affirmed.