author: Caldwell, J.

text:
    (Eighth Circuit — Cuyahoga Co., Circuit Court
    —Dec. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    JAMES E. KING, EXECUTOR, ETC., v. ESTER KING.

      Contract in restraint of marriage during life of one of parties void — Public policy—

    (1) . A contract by which a girl agrees to take care of and keep house for a relative and not to marry during his lifetime, in consideration that he would provide for her bountifully, is against public policy as in restraint of marriage, and although faithfully carried out by the girl, can not be enforced in the courts.

      Consideration part legal part illegal, but a unit — Can not be separated—
    (2) . Although in such a contract one part of the consideration— the performing of services — is legal, yet the consideration is a unit and can not be separated, and the entire contract is void.
    Error to the Court of Common Pleas of Cuyahoga county.
   Caldwell, J.

This case comes into this court on error from the court of common pleas.

The petition sets up that Esther King — and the petition, in fact, shows that Esther King, when she was, perhaps, sixteen years old and living with her parents at home, was applied to by James Howland, who was the uncle of her mother, to have Esther go and live with him and keep house for him during the rest of his life. He had just previous to that lost his wife. Howland was a man well advanced in years at that time, and Esther was a girl, perhaps fifteen or sixteen years old.

There is set up in the petition, and proved in the evidence, a contract under which this was done. The contract in the first place seems to have been made with Esther and her mother and her father; the talks were with each one separately, and the contract shows that she was to go and live with Mr. Howland and take care of his house and take care of him during his life-time, and that he would provide for her bountifully while she lived with him and at the time-of his death. And there is evidence showing that that “bountifully” was that he would give her the great bulk of his property. And the contract shows clearly, and is so set up in the petition, that this girl was to refrain from-marriage during her life-time, as it is set up in the petition, and some of the witnesses swear to it. That probably might be intended to mean during his life-time, but it is set up in the petition, “during her life-time.”

She went apd lived with her uncle until he died; and she-performed the services faithfully in taking care of him, which, during part of this time, was a matter of great unpleasantness, for the reason that he had running sores uponnis body that had to be dressed,and there was great danger of her life in dressing those sores, as some of the experts say in the testimony.

It is sought to reverse this case on several grounds: First, because the judgment is too large. She recovered a judgment in the court below, of ten thousand dollars. And there are other matters that I will not even name at this time, but I will come directly to the question that has absorbed the-attention of the court almost wholly.

It is claimed that the court erred below, when he-charged the jury that if they found this contract had been proved,and they found that the girl had performed the services agreed on during the life of James Howland, which services extended through fifteen years — and it was claimed that he renewed this contract with her after she became of' age, so that it became her contract directly — and if they found those facts to exist, then they might give her upon-that contract what she would be entitled to, considering-his estate, the size of it, and all the circumstances of the-case.

Now, the contention is that that was error upon the part of the court below, because this was a void contract; that the element that she should refrain from marriage during his iifo made it a void contractas against public policy.

We find the rule laid down away back in England, in the early judgments of the courts in England, that such a contract was a nullity as against public policy, and, by one of the eminent judges of England, it was pronounced as the blackest of political crimes.

Of course,it is the policy of every nation that the human race should be reproduced; that there should be a continuation by birth of children; it is essantial to the existence of the race and of the nation, and this doctrine.is founded upon that public policy,

There are a great many adjudications along through England; and, after the United States courts were estabished, there are a great many decisions in the United States courts; and this doctrine has been adhered to with certain modifications. One of the modifications that has received the greatest amount of attention,is where a testator wills to his widow or to his wife a certain amount of property during her widowhood, or while she shall remain unmarried,or language to that effect. That is made an exception, and it is made upon the ground, by all the authorities, that I have examined — and I think I have seen nearly everything upon that subject: it is made an exception, and yet not an exception, to the rule that á restraint of marriage is against public policy. The courts hold that that is simply a limitation; that it is given to her during a certain time while she shall remain in a certain status and, when she changes that status or position in life, the gift is no longer to remain hers; being given upon a limitation, it expires by force of its own language, the limitation being placed in the gift itself.

Of course, it occures to any one in reading these decisions — 'must necessarily occur to any one, that, after all, there is lying in such a gift an inducement upon the party not to marry and, so far as that inducement goes, it must be ■against the rule of public policy that has been established by the courts.

However, the courts ignore that element of the matter ■entirely, and place it upon the ground I have already stated. Certain judges, in commenting upon this part of the law pertaining to gifts of the nature I have spoken of, say, in ■commenting by way of sarcasm almost, that there is no public policy against restraining a widow from marrying,or any person from marrying a second time, but that it is against public policy to restrain one who has never been married, from marrying at all. And we see this line of criticisms •going against this class of cases, and, yet the court offering the criticism goes on and follows the old rule, and adheres to it strictly in its decision.

Other limitations have been made upon the general rule in these words: .The courts have said that a reasonable restraint will be permitted; if a man gives to his daughter a certain gift based upon the condition that she shall not marry a certain person, that has been held good as it is not an entire restraint of marriage; that she s^all not marry into a certain family, has been held good; that she shall not marry a person of a certain nationality, has been held good, so that the rule has been encroached upon to. that extent 'but it has been done purely upon the ground that the rule is a good one and must be adhered to, but that the restraint is not such but that the person may have an abundant opportunity to marry although she may not chose any one out ■of the whole class of men living. Other encroachments 'have been made upon it, much in. the same 'lines, but the. •autborites are all unanimous, so far as I have seen them, that any restraint,however short in time, though it be a year •or two years or three years, is against public policy and against the rule,and the contract will be void under the rule of public policy. So that it is impossible to say that the court was right on the ground that this contract was only. for a short time. She agreed to take care of her mother’s uncle during his life-time, and during that time she would abstain from marriage. Now he might have died the next week; he might have died in a month or in a year; but, as a matter of fact he did not die until fifteen years after this-contract was made. It was, then, not a contract to refrain from marriage for a month of for a week, but during his-life-time; and, as the contract shows, his life-time was fifteen years from the time she went to live with him.

That being true, the contract can only be considered in the light of what developed under it.

We have seen this rule of public policy criticised. It iscriticised in Maryland. It is criticised in New Hampshire.. It is criticised in three or four of the other-states, by other courts, and yet the very courts that criticise it and say that the rule of public policy .that was once adhered to so tenaciously by nations many years ago, that the rule for holding that doctrine is not now so important as it was at that time. And perhaps any reason for holding it in every case- — us if you should make a law that no one should marry in a certain country, it would be the ruin of the country if the rule-was adhered to; and yet a contract, no matter however limited it may be in its operation on the two individuals, it has-in mind that public policy,and although it may have become so that it is no longer essential that that rule should be-carried out in contracts on so limited a scale, yet the very courts that have criticised it, have all adhered to it, and,, while there is an abundance of authorities in the states, iiv the 80’s as I have seen them, and two in the ’90’s, they are all adhering to the doctrine that this rule of public-policy will make any contract void of the nature of the one-under consideration.

This contract was an absolute contract that, during this-time, she would not marry. That was a part of the consideration.

Now, it is said in the brief filed by counsel, and in the -argument also, that here were two considerations — one that ■she would not marry, and the other that she would perform these serivces for him, It is said that that can be separated, and that we can allow the one to stand although the other • does not.

Smith & Blake, for Plaintiff in Error.

J. F. Clarke, I. T. Ingersoll, for Defendant in Error.

We think it is clearly established under the law in thi ■state, by decisions of our supreme court, that where the ■consideration is a unit that the party was to render for these two considerations, there can be no separation by the court. I will not stop to refer to these decisions I presume they are familiar to the attorneys.

That being true, there can be no separation in this matter, and the illegal element in the contract goes to the entire contract.

We thought at the begining of this case that we would be a little heroic and establish the doctrine that seme of the -courts hint at as being the proper doctrine in a case of this kind, and we were quite inclined to be pioneers in that direction; but, after the very careful examination cf the authorities, and seeing how closely the courts in all the states ■ around us adhere to this rule, though there is no decision in this state, it is, perhaps, better knowing that there is really some principle at the bottom of this whole thing of public policy, because if this contract could be sustained and held as valid, then, why not a law that would accomplish the same thing? Why not a multitude of contracts ■springing up at once? There is no telling what it might lead to.

And we have finally concluded not to be quite so heroic, and simply say that we will follow the long line of precedents established as to cases of this character, and say that this petition sets up no cause of action in the contract alleged, from the fact that it sets up no valid contract but the void one, and there can be no recovery upon the contract in ■this case, and the judgment below will be reversed,


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith and Swing, JJ.
    W. J. STRACK v. A. B. RATTERMAN et al., constituting the Board of City Affairs, and GEORGE SHERRY and JOHN McDONNELL, individually, and as parties under the firm name of GEORGE SHERRY & CO.

      Public contract — Sec. 3303, subd. 4 R. S. — Mandatory—
    (1) The provisions of sec. 3303, subd. 4, R. S., are mandatory, and must be strictly complied with and the board of city affairs has no right to enter into a contract with a bidder or bidders who fail to comply with the provisions thereof, and in a proper case, the making, of such contract should be enjoined by the court, or if made, should be cancelled

      Same — See. 2702-2 R. S. mandatory — Contract can not be-awarded to one in default to the city—

    (2) . Sec. 2702-2, R. S., which provides that “no bid shall be accepted from, or contract awarded to any person who is a defaulter as surety or otherwise, upon any obligation to the corporation” applies to the city of Cincinnati, and is mandatory in its character, and a coitract should not be made with a firm one of the members of which was such a defaulter.

      Same — Next lowest bidder not absolutely entitled to the contract—

    (3) . Where, through inadvertance or otherwise, the board has entered into a contract with a person who was the lowest bidder, but who had not complied with the mandatory provisions of the statute, and tnerefore is not entitled to be considered as a bidder, the next lowest bidder, if he has complied in all respects with those requirements, is not absolutely entitled to have the contract awarded to him at his said bid.

      Same — Serrman v. State. 11 C. C., 504, overruled—
    (4) . The holding of this court in Herrmann v. State, 11 O. C. C., 301, to the effect that where the bid of the lowest bidder must be rejected for irregularity or other sufficient reason, the next lowest bidder would be entitled to the contract, is overruled.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The errors assigned in this case are, that the court of common pleas erred in sustaining the demurrers interposed by the defendants to the amended petition of the plaintiff,, and in dismissing the said action at the costs of the relator..

The petition is a long one, but the question for decision is this: Whether, when the board of administration, or its successor, the board of city affairs,' has prepared the necessary preliminary estimate, plans and specifications, and has passed the necessary resolutions and ordinances, and taken all the steps required by law, and advertised for bids for the construction of a trunk sewer and drains, etc,, the expense thereof to be paid out of the trunk sewer fund of the-city, and that several bids for the construction of the same were duly submitted to the board, and said bids opened and submitted to the engineer of the city for computation and report, and the engineer duly reports to the board that George Sherry & Co. were the lowest bidders in the aggregate for said work, and that the relator W. J. Strack was-the next lowest bidder therefor, and the fact was that all the bids submitted were for the entire work in the aggregate, And that on March 81, 1898, the board approved the computation of bids as reported, and awarded the contract to George Sherry & Co., and passed a resolution to contract with said George Sherry & Co. according to their bid, and such contract was signed April 25, 1898, bond having been given by George Sherry & Co. on April 22. The question is whether such contract is valid under the circumstances now stated, viz: First, that the bid of George Sherry & Co. did not set forth therein the full name of every person interested in the same, as required by section 2303, subdivision 4; that John McDonnell and others are-members of said firm of George Sherry & Co., aDd that said John McDonnell was a defaulter on an obligation to the city of Cincinnati, in the manner pointed out in the petition in this case.

And, second, if the bid of the relator was in every respect a legal and proper bid, and he had never defaulted on. any obligation to the city, and he was the lowest responsible bidder who had complied with all the requirements of the board and of the law, and he is ready and willing to enter into a contract with the city on the terms of his bid, and is able to comply with all the requirements of the board and perform the obligations of the contract, is he now, having promptly filed his petition in mandamus, asking for a writ requiring the board to accept his bid, award the contract to him, and enter into such contract with him, though the contract had been made with George Sherry & Co., (who however had not entered upon the construction of said improvement when the petition in mandamus was filed), and that said contract with George Sherry& Co. be •cancelled and set aside — is he entitled to such a writ?

As to the first of these two questions, we are of the opinion that the provisions of section 3803, subdivision 4, Revised Statutes, are mandatory, and must be strictly complied with, and that the board has no legal right to enter in'to a contract with a bidder or bidders who fail to comply with the provisions thereof, and that in a proper case, the making of such contract should be enjoined by the court, ■or if made, should be cancelled? So too, section 2702-2, Revised Statutes, which provides that “no bid shall be ac•cepted from, or contract awarded to any person who is a •defaulter as surety or otherwise, upon any obligation to the corporation”, and which applies to the city of Cincinnati, we think, is mandatory in its character, and was another reason why the contract should not have been made with a firm of which one of the members, according to the allegations of the petition, was such a defaulter.

As to the second question we have had more difficulty — That, is, where through inadvertence or otherwise, the board has entered into a contract with a person who was the low-sat bidder, but who had not complied with this or other mandatory provisions of the statute, and who therefore is not entitled to be considered as a bidder, is the next lowest bidder, if he has complied in all respects with those requirements, absolutely entitled to have the contract awarded to him at his said bid ?

On consideration we have reached the conclusion that ho-is not. Subdivision 6, of the same section 2303, gives the-right to council, (in this case the board) “in its discretion-to reject all bids”. Under this authority, the board would have had the clear right to reject all the bids in this case, even if it had discovered that the bid of George Sherry &• Go. could not be considered. If through oversight or other-wise they have awarded and entered into a contract with a-firm with whom the law does not allow them so to contract, .when this is discovered, why should the board not have the’ same right to reject all the other bids, though the next lowest bid may have all the essential requisites? We think-' this is so, and to hold the contrary might lead to great loss-' and damage to the corporation. The next lowest bid maybe an exorbitant one — -thousands of dollars higher tham the one which did not comply with the terms of the statute and therefore should not have been considered by the board. In this case, as the bid of George Sherry & Go. was the lowest, it is probable that the bid of the relator was never considered, and if it had been the lowest one, might have been rejected as exorbitant. If the bid of George Sherry .& Go. had been in all respects legal, and the contract had been awarded to them, and then they had refused to enter into the contract, we suppose it would not be-claimed that the relator as the next lowest bidder would-have had the absolute right to the contract, and we think the same is the case here.

Much reliance is placed by counsel on the decision of this-court in the case of Herrmann v. State, 11 O. C. C., 504. Only two of the members of the court as it was then constituted, agreed with that part of the decision which held that in a case like that before the court at that time the next lowest bidder was entitled to the contract if proper steps had been taken by him. It was really not necessary to pass upon that question, as all of the judges concurred in the opinion that the relator there had no standing in court on account of his laches, in allowing the other person to whom the contract had been awarded, to proceed with his work under it. But, on further consideration of the question, we think the principle there stated as to the next lowest bidder being entitled to the contract, was incorrect, and not sustained by the authorities cited.

F. M. Dinsmore, for Relator.

Corporation Counsel, for Defendants.

In this case there seems to have been no laches on the part of the relator. He commenced this proceeding promptly •and before work was commenced by George Sherry & Go. But so far as appears from the allegations of the petition, no demand was made by relator to the board to award him the contract before the commencement of the proceeding. Whether it was necessary to do so, we are not called upon to say, and have not considered the question.

There is a prayer in the petition, that the court declare the contract with George Sherry & Go. to be invalid, and decree its cancellation. We think it can not be done in a mandamus proceeding, which “is one in the name of the state, to require a tribunal, corporation, board, or person to perform an act which the law specially enjoins as a duty resulting from an office, trustor station.” The relief last asked by the petition, can not be granted in such a proceeding. Nor do we think the law requires this board to award the contract to the relator under the circumstances set out in the petition.

The judgment of the court of common pleas dismissing *the petition is therefore affirmed


author: Hale, J.

text:
    (Eighth Circuit — Cuyahoga Co., O. Circuit Court
    June Term, 1899.)
    Before Caldwell, Marvin and Hale, JJ.
    GEORGE KING and LOUIS UHL v. ELIZABETH HERB.

      Vaults under sidewalk with openings therein — Duty of owner to guard them while open — Liability for injury—
    (1.) Where vaults are constructed under the sidewalk in front of and in connection with a building, intended for the storage of coal for use in the building, with openings in the sidewalk for the reception of the coal, and an injury is suffered by a passer-by by falling into such an opening left unprotected while uncovered to unload coal therein, the owners of the building are liable for damages notwithstanding a contract they may have made with the coal dealer, placing the latter in the exclusive possession and control of such openings for the purpose of unloading coal therein.

      Same — Coal holes opened by unauthorized person — Liability of owner — ■
    (2) . It appeared that the hole Lad been opened and left unprotected by one of the employes of the owners of the house, and it was claimed that he, in doing so, acted outside of the scope of his employment. Held, that this fact would not relieve the owners of the house from liability.' If such employe had been amere interloper and seeing- the driver about to deliver the coal at that hole, had removed the cover with the Knowledge of the driver, it would have been the driver’s duty to see that it was properly guarded, and his failure to do so would be the failure of owner of the building.

      Verdict — Right verdict based on wrong reasons—
    (3) . A jury may have found a right verdict based upon wrong reasons, but, if the verdict was clearly right under the conceded facts of the case and such as have been properly determined by the jury, it will not be set aside.
    Error to the Court of Common Pleas of Cuyahoga county.
   Hale, J.

The following facts are either conceded or clearly proven:

The plaintiffs in error owned a building fronting on Euclid avenue, known as the King and Ubl Block. Extending from the basement of this building, under the sidewalk, are six vaults, .one of which is used for the reception of coal to be used in the heating of the building. There is an opening in the side-walk 16 to 18 in diameter for the reception of coal into the vault, which, when not in use,is usually protected by an iron cover. Most of the building is occupied by lessees, but King and Uhl have the care of the hall-ways, stairs,elevators and basement,or at least that portion of the basement occupied by the boiler and heating apparatus. They furnish the heat for the entire building.

At the time of this transaction King and Uhl employed an engineer or fireman whose duties were to run the boiler and receive and receipt for the coal needed for that purpose. They also employed a man by the name of Babcock, whose conceded duties were to run the elevator and care for the halls and stair-ways.- Other employes, if any, had no part in this transaction and need not be noted.

The Zettelmeyer Goal Company had for several years furnished all the coal used by King and Uhl in heating the building. On the night of this accident the coal company had by its agents, under its arrangement with King and Uhl, delivered to them at that building a load of coal. The driver came to the building with the coal, and took the bill for the same to the fireman in the basement, who receipted for the same. The driver then returned to his wagon. The fireman went to the vault and assisted in the removal of the cover of the coal-hole; he did this at a signal from Babcock, then on the side-walk, who, after the cover had been loosened by the engineer, removed it from the hole for the receipt of the coal. Scantlings were kept in the vault, which were used to form a bridge from the street to the top of the curb, to prepare the way for the wagon to back up to the coal-hole. These the engineer passed out, either to the driver or Babcock, and they were used for the purpose intended. After the cover was removed and before the wagon was in place for dumping the coal, the defendant in error, passing along the sidewalk, stepped into the hole and was quite seriously injured.

So far there was no]substantial”conflict in the testimony. Upon other issues, there was a ^conflict of testimony.

It was claimed on the trial, although not specifically so alleged in the pleadings, that the coal company had been put in the exclusive possession and control of the coal-hole under a contract with King andfUhl, by the terms of which it had assumed all responsibility for its care and the whole duty of protecting the public from^the dangers incident to its use, and that King and Uhl by^sucb contract were relieved from any'responsibility or duty to the public in its use for the purposes for which it wasjjtben used.

The only evidence given infsupport of the contract which it is claimed, thus exempted King and Uhl from responsibility, is found in the testimony of Mr. King, one of the plaintiffs in error, on pages 280-281 of the record. Mr. King, after stating that he made the arrangement for the purchase and delivery of the coal with^Mr. Zettelmeyer, was “then asked:

“What was the talk, if any, between you and Mr. Zettelmeyer about furnishing the coal for your vault, how to put it in, and what was said about it by him as the representative of that company?”
Answer. “Mr. Charles Zettelmeyer came to my office about the first of November, 1893, and we talked over the matter of furnishing coal, and finally came to an agreement n
Question. “What was said?”
Answer. “He said he would furnish coal at $1. 30 for slack coal delivered in the vault. I asked him how he would put it in the hole, seeing the coal-holes were so far from the curb-stone. He said they would bring a chute to run the coal from the wagon into the hole. I said, ‘There is danger of people tumbling into that hole when the chute is there, I’m afraid they are so far from the curb-stone.’ He asked me ‘How large is that vault?’ I told him it 'might hold a car-load and might not quite hold a car-load of ■coal. He said, ‘We will send two teams at the same time when coal is brought, and one can watch the hole and the other unload, and vice versa.’ I says, ‘Go ahead, furnish-the coal. ’ ”

This is substantially all that was said by Mr.- King about the contract. It further appears from his testimony that at first the coal company did send two men in accordance with-that talk, but latterly omitted to do so, and much of the coal was delivered by one man.

This testimony of King was denied by Zettelmeyer, an officer of, and a witness for the coal company,

Upon the subject of this contract, after stating the claims-of exemption made by King and Uhl, the court charged:

“It is denied by the coal company that any such contract was made by them; but I say to you that the defendants King and Uhl would not be released from liability by reason of said contract, if such contract you find there was, if, under the rules I shall give you, you find that on the 24th day of November, 1896, the defendants King and Uhl' were negligent, and that such negligence of said defendants was the proximate cause of the injury to the plaintiff, and the plaintiff was not negligent, then I say to you that King and Uhl would be liable.”

The effect of this charge was, that no contract had been made between King and Uhl and the coal company, whereby they were released from such responsibility,

If the evidence fairly tended to prove a contract that would relieve King and Uhl from the duty which, in the absence of such contract, they owed to the public to guard those travelling upon the sidewalk from danger incident to the use of this coal-hole, permitted to be made in the sidewalk by the city authorities, then the charge relating to the subject of this contract was erroneous. It may well be doubted, however, whether King and Uhl could, by a contract, relieve themselves from the duty of guarding the public from the dangers incident to the use of this opening in the sidewalk, when 'jused for the purposes for which it was* then being used.

If this hole was left open and unguarded, it was dangerous to those travelling upon the sidewalk, and the duty of guarding the public from such danger it is conceded was primarily upon King and Uhl. They were the owners of and in possession of the abutting property; the vault under the sidewalk was constructed by them and for their use; the permit to open into the vault through the sidewalk, was-given to them and was opened for their use. If it be granted that the contract of the coal company required it to deliver the coal in the vault, it could only be so delivered through this hole upon the premises of King and Uhl and for their use.

It is not analagous to those cases in which the entire premises are put into the possession of a lessee or the control of' an independent contractor for the purpose of repair or construction of some building or other structure upon the premises. It was, undoubtedly, the duty of the coal company to use ordinary care in the delivery of the coal, and whether the coal company is, in any way, liable or responsible to King and Uhl for their failure to perform that duty,, we are not now concerned or called upon to decide. But we are of the opinion that King and Uhl, notwithstanding-this contract, still owed a duty to properly guard and protect a traveler on the highway from the dangers incident to its use. We cite, upon this proposition; 66 Iowa, 223, Calder v. Smalley; 156 N. Y., 354, The Trustees of the Village of Canadaigua v. Foster. I refrain form citing other authorities to the point.

It is not our purpose to review and comment on the decisions of the supreme court of the state, which maybe said to aid in determining under, what circumstances the owner of a building can, by independent contract, relieve himself from such duty and-liability.

And without definitely determining whether such contract could be made in the situation of these parties, we are--satisfied that the evidence falls far short of establishing such a contract or tending in any substantial degree towards proving a contract having such effect.

Interpreting the evidence in the light of the circumstances in which the parties were placed, the purposes for ■which the opening in the sidewalk was being used at the •time, it had no tendency to establish a contract which would relieve King and Uhl from the duty to the public and their -liability to a passer on the sidewalk, who received an injury from the careless and negligent use of that opening. The defense that this duty had been shifted by King and Uhl, ■to the local company, under the contract between those parties, was not sustained, and there was no error in the charge of the court to the jury upon that subject.

Again, it fairly appears from this testimony that Babcock, an employe of King and Uhl, removed the cover from this hole after it had been loosened by the fireman, and that he then failed to properly guard it while the driver of the coal wagon backed his wagon on to the sidewalk.

The claim in behalf of the plaintiffs in error, however, is that Babcock at that time was acting without the scope of his employment, and that for any carelessness and negligence on his part, they are not responsible. In this connection, two complaints are made of the rulings of the court: First, it is claimed that the court erred in the rejection of testimony offered by the plaintiffs in error tending to establish the duties of Babcock under his employment and to -negative any knowledge of King and Uhl that he was performing or ever had performed any duties outside of those for which he was employed. While questions were asked, and to which objections were sustained, with a view of eliciting testimony upon this point, a review of the whole record will show that the witnesses to whom these questions were put, did testify fully upon this subject. And without reviewing each individual instance of which complaint is made, we hold that there was no error of which the plaintiff in error can justly complain in the rulings upon the evidence, The effect of this ruling will be further considered in connection with the charge. Upon this subject of the scope of Babcock’s duties, the court said to the jury:

“ Was Henry Babcock on the evening the plaintiff was injured, in the employ of the defendants King and Uhl ? Was he, when he removed the covering from the coal-hole, acting within the scope of his employment? It is for you to determine from all the evidence in the case, whether or not he was so acting, and if you find that he was so acting within the scope of his employment at the time when plaintiff was injured, then for his acts the defendants King and Uhl would be liable. If he was not at said time so acting within the scope of his employment, then they would not be liable for his' acts. ”

And further, counsel for plaintiffs in error submitted to the court several requests which they asked to be given to the jury as a part of the charge. 'These requests were refused.

The ground of the complaint is, that the court had given the jury no guide by which to determine the fact whether Babcock was or was not acting within the scope of his employment at the time he assisted in the reception of the coal.

The charge was a correct statement of an abstract proposition of law, but, it is claimed, however, to be so general and so loosely stated as to be no guide to the jury in determining the facts of this case, and that this defect was ■remedied by the requests which have been given.

Suppose these propositions had been given in the charge of the court to the jury, and the jury had found¡¡that Babcock in all he did in and about this removal of that cover from the coal-hole was acting outside of the scope of his employment in no way binding King and Uhl, would that fact by any possibility relieve them from liability to the defendant in error? The duty of King and Uhl in the use of the opening was a continuous affirmative one. Their negligence was not the result of acts done, but of acts omitted-to be done. The charge of negligence in the petition is in these words:

“Plaintiffs aver and charge it to be a fact that on or about the 25th day of November, 1896, at half-past five’ o’clock in the evening, said defendants, while said sidewalk was filled with people passing and re-passing thereon, removed the slide or covering from said main-hole in said side-walk in front of said block for the purpose of allowing the defendant, the Zettelmeyer Coal Company, to precipitate coal into said vault.”

So far no complaint of carelessness is made against the-defendant; but it is added:

“And carelessly, negligently and recklessly put up no sign and gave no notice that the same was open,and, without in any way guarding said opening or taking any precaution whatever to prevent passers over the sidewalk from slipping and falling therein, and still knowing it to be unsafe and dangerous from the crowded condition of said sidewalk and from the uncertain and insufficient light at the time and place, allowed and-caused the same to remain open without precaution or without any light or sign to indicate the dangers as aforesaid.”

No duty to the public was violated in opening the coal-hole for the purpose of delivering coal ídío that vault. It was permitted to be placed there for that purpose; but negligently omitting to properly guard it when so used, constituted the breach of duty complained of.

Some one represented King and Uhl in that transaction, or clearly should have done so. The coal company were employed to deliver to King and Uhl that coal, and into that vault and through that opening. And the effect of our holding as to the relations between King & Uhl and the coal company’is, that King and Uhl are responsible to passers on the sidewalk for the manner in which that work was done by the coal company. If Babcock had not been in the employ of King and Uhl at all, and had been requested to'remove that cover by the driver of the coal wagon, and then guard the hole while the driver backed his load upon the sidewalk, King and Uhl would not be absolved from liability.

C. D. Pennewell, for Plaintiffs in Error.

H. H. Poppleton, and Billman & Billman, for Defendant in Error.

Again, if Babcock had been a mere interloper and, seeing the driver about to deliver the coal at that hole, had removed the cover with the knowledge of the driver, it would have been the driver’s duty to see that it was properly guarded, and his failure to do so would be the failure of King and Uhl. If the driver of the coal wagon sought or accepted the aid of Babcock in the work of delivering that coal, and injuries resulted to a traveler on the sidewalk from the negligent manner in which the work was done, King and Uhl were responsible. It was a failure on their part to protect the public from, the dangers incident to its use.

There was, in fact, no defense attempted in the case that could relieve King and Uhl from negligence in leaving that opening unguarded, except the one that the coal company was an independent contractor and alone responsible for the negligence in leaving the hole unguarded. Under the charge of the court, the jury determined that issue against the plaintiffs in error and, as we think, rightly.

With that issue found for the defendant in error, and on the undisputed facts, taken in connection with such findings, the defendant in error was entitled to a verdict.

It may be suggested that the jury based their verdict wholly on the negligence of'Babcock, and found that the-coal company was guilty of no negligence. It does not definitely appear on what theory the jury reached their verdict. They may have found a right verdict based upon wrong reasons, but, if the verdict was clearly right under the conceded facts of the case and such as have been properly determined by the jury against the plaintiffs in error, then we see no reason for disturbing the judgment.


author: King, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Jan. Term, 1899.)
    Before King, Haynes and Parker, JJ. (Of the Sixth Circuit sitting in the First Circuit.)
    THE CITY OF CINCINNATI v. JENNIE M. FRAZER.

      Defective Sidewalk — Constructive notice to city—
    (1) . The true rule as to constructive notice to city of defective condition of sidewalk is that if the defect is shown to have existed such a length of time that the city authorities by the exercise of ordinary care would have known of its existence and could have repaired it, then the city is chargeable with Constructive notice of such defect.

      Same — When city liable—
    (2) . To hold the city liable, the jury must first find that the city was guilty of negligence through want of ordinary care, either in not ascertaining the defect and repairing it, or in not repairing after acquiring Knowledge thereof, actual or constructive.

      Same — Duty of party to take opposite side of street—

    ('3). Where a party might have avoided injury from a defect in the sidewalk by walking in the street or on the opposite side, yet a party is not bound to take the opposite side of the street unless he had reason to apprehend danger at this place.
    Error to the Court of Gomroon Pleas of Hamilton county.
   King, J.

The verdict in this case is supported by sufficient evidence, and there is no error found in the rulings upon the evidence offered at the trial. We think, however, the court in its definition of constructive notice in the charge erred to the prejudice of the city, in saying in effect that if the crossing in question had been out of repair for such a time that the city might or could have repaired it, that would amount to constructive notice to the city of the defect, The rule is, that if the defect is shown to have existed such a length of time that the city authorities, by the exercise of ordinary care, would have known of its existence and could have repaired it, then the city is charged with constructive notice of such defect,

Again, that part of the charge of the court, excepted to, on page 153 of the record, because in stating to the jury the circumstances under which the city will be held liable in damages, it fails to state as a basis for such recovery that the jury must first find that the city was guilty of negligence, i. e., a want of ordinary care, either in not ascertaining the defect and repairing it, or in not repairing it after it had acquired knowledge thereof, actual or constructive.

The expression of the court, found on page 154, as to the definition of “a preponderance of the evidence” is not strictly accurate, but there is no specific exception to this. With the above exceptions we think the charge is substantially correct.

Nor do we find any error in the refusal of the court to submit to the jury the interrogatory requested by the defendant below, as an answer to the question, “Could she easily have avoided the danger by walking in the street or on the opposite crossing?” would not have been controlling. It is patent that by walking in the street or on the opposite side she would have avoided the danger from the defect in the crossing, but she would not be bound to take the opposite side of the street unless she had reason to apprehend danger at this place.

We think the court should have given the two first requests contained in the record, on page 161, submitted by counsel for the city. The first of these was not given in the charge, although its opposite is contained in the charge. We would not reverse this case for the refusal of the court to give that request, but take occasion to say that we think it was proper.

The second request states a rule of law well settled in this state, to-wit: That if the testimony of the plaintiff below raises a presumption of contributory negligence, the burden is upon her, the plaintiff, to remove that presumption. That Í3 merely stating a rule of law that the plaintiff is bound to show by her case, by her evidence, that she was in the exercise of ordinary care, and that her want of such ordinary care did not contribute to her injury.

Corporation Counsel, for Plaintiff in Error.

Amos Dye and S. N. Maxwell, contra.

There is mo other issue of contributory negligence in the ■case, as the answer does not tender such an issue.

Forjthe failure, therefore, of the court to give these two requests, and for the errors in the charge pointed out, this judgment is reversed and the cause remanded for a new trial.


text:
    (Sixth Circuit — Fulton Co., O., Circuit Court
    —May Term, 1899.)
    Before King, Haynes and Parker, JJ.
    ANSON W. VAN ARSDALE v. LEVI W. BROWN

      Written contract — Testimony as to the understanding of the . parties—
    (1) . Where the contract is in writing, testimony as to the understanding^ the same by the parties is incompetent, especially were such alleged understanding contradicts the plain terms of the writing.

      Agreement to pay at party's option — Reasonable time—

    (2) . An agreement to nay at a party’s option, means to pay within a reasonable time under all the circumstances of the case. Whether such reasonable time is to be ascertained by the jury, from the facts, or whether it is a question of law, deponds upon the nature of the transaction involved in the case.

      Sale of stoelc at price fixed — Fact that stock of no value of no ■ consequence■—
    (i). Where stock is sold at a certain price, the seller is entitled to payment of the price agreed on transfer of the stock, regardless whether the stock was valuable or not.

      Transfer of stoek imports some value—
    (5). An agreement- to transfer the stock of a corporation whether solvent or insolvent, imports that the stock is of some value, and for the purpose of making a holding contract it is not important how valuable.
    Error to the Court of Common Pleas of Pulton county.
   King, J.

'This action was brought in the court of common pleas, to recover upon a certain contract, called in the petition a writing obligatory. The material points are in these words:

“Wauseon, Ohio, January 1, 1895.
“‘Whereas the organization or venture of the Hall Medicine Company has thus far been unsuccessful, and whereas Anson W. Van Arsdale has lost some money thereby; now therefore in consideration of the said Van Arsdale making over or causing to be made over, to my son, Charles N. Brown, all the right, title and interest he or his wife may have in the company and all its property, except one share of stock to the same, of the nominal value of fifty dollars, held by him or his wife, I promise to pay, at my option as to time after one year, three hundred and fifty dollars, with interest after January 1, 1896, and also under the same conditions and the same option as to time of payment, after two years, I agree to pay Van Arsdale the further sum of three hundred and fifty dollars with interest after January 1, 1897.”

There is a further provision in this contract that if the business is successful, Van Arsdale shall have seventy-five dollars worth of medicine manufactured, or stock to the par value of one hundred dollars.

The petition further averred that on June 2, 1897, defendant paid forty dollars, and on September 16, 1897, twenty-five dollars, to apply upon the said contract.

The answer admitted that defendant signed the writing and admitted the two several payments, but denies all of the other allegations of the petition.' There is a cross-petition or counter-claim in the answer, which is unnecessary to notice.

Th§ trial of the.case resulted in a judgment for the defendant, which the plaintiff seeks here to reverse. The case was tried to the court below without a jury, and was tried and decided upon the theory, as indicated by the rulings upon the evidence offered and by the decision of the court, that it was incumbent upon the plaintiff to allege and prove that he performed the conditions of the contract on his part by turning over the stock in accordance with its requirements, and that the stock agreed to be transferred was of value. It will be noticed that there is no allegation in the answer that the, stock was valueless. The answer simply denies that the plaintiff has performed the conditions on his part to be performed. In the course of the trial, defendant being upon the witness stand was asked this question, which appears on page 35 of the bill of exceptions: “What, if any other talk did you have with him (plaintiff) at any time since January 1, 1895, about the company, and what was the conversation?” This question was objected to, and objection overruled, and plaintiff excepted. Answer: “Why, we talked part of the time about the prospects of the company, and about its getting on its feet and getting up and making money.”

Some further testimony follows this along the same line, and then this question and answer appears on page 36: “Was there any talk at any time about your not paying the money until the company got on its feet?” This question was objected to, objection overruled, and excepted to by the plaintiff. A. “Why, at the time this was made and given, a talk was had between Mr. Van Arsdale and myself about the-company. I said to Mr. Van Arsdale, put it in that way, that he should have what money he put in there. Pending there-habilitation of it, it was turned over to a brother-in-law, and I think he perfectly understood.” Q. “Not what you. think?” A. “Well, I understood it. Our conversation-was such that it was my understanding. I understood that when the money was made out of the company, that., is, if' it could be made out of the company, that he was to have his pay; but if it could not be made, after the rehabilitation of the company, I was to pay it. ’ ’ There is considerable-more in his examination along this line.

There was no defense set up in the answer of a different agreement having been made subsequent to the one sued apon, and, as I have already stated, no defense that the conditions of the promise to pay the seven hundred dollars had failed.

We are of opinion that the court erred in the admission of the testimony which I have read, to which there are objections. There is considerable more of the testimony that, if objected to, should have been excluded. It was incompetent for the parties to testify what was their understanding of this contract, and especially incompetent to testify to an understanding which clearly contradicts its plain terms.

It was claimed, by the defendant at the trial, that this ■contract was not binding upon him, because there was no time fixed when he should pay the seven hundred dollars. The stipulation is that he was to pay it at his option as to time, after a date named, from which date he was to pay interest on the principal sum.

The court below construed this promise to pay as conditional, that is, dependent upon the promise of Van Arsdale to make over and transfer his interest in the company and the stock of the company.

We are clearly of the opinion that the promise of Brown was an absolute promise to pay money, and if conditional, then only conditional upon the transfer of Van Arsdale’s interest in the company and the stock. The only issue in the case then, upon the pleadings, was whether the plaintiff had performed his agreement to transfer his interest in. the company.

There is no issue as to whether the stock was valuable or not, and no issue whether there was a subsequent agreement. A stipulation or agreement to transfer the stock of a corporation, whether solvent or insolvent, importsjthat the stock is of some value, and for the purpose of making a binding contract it is not important how valuable. The parties in this contract incorporated in it their knowledge that the company was not making money, and that the plaintiff had been losing money in the venture. This seems to be a reciial or statement of the reason for the sale of the plaintiff’s interest, and with that understanding and knowledge defendant promised and agreed to pay $700.00 for that interest. It is true, he says “at. his option as to time. ” That means nothing, however, more than a reasonable time after the date named. The date named as to the first installment is one year, and as to the second installment, two years from the date of making the contract. A reasonable time, then, after the expiration of these periods these several installments would become due. An authority to this fact is the case of Lewis v. Tipton, 10 Ohio St., 88. The court say in that case, on page 90: “The payee certainly parted with its value to secure the promise; and the maker not only admits this, but promises to pay interest thereon while the payment is foreborne. If the convenience of the maker alone is to be consulted, he might never find it altogether convenient to pay, and the construction leads to results certainly not contemplated by the parties when the note was written. ”

Whether a reasonable time is to be ascertained by the jury or, as in this case, the court, from the facts, or whether it is a question of law, depends upon the nature of the transaction involved,in the contract.' We have had occasion to discuss this question in the case of Ashley v. Walker, 15 C. C., 660. The plaintiff in this case was entitled to recover upon this contract when b9 proved that he had transferred the stock to the defendant, regardless of whether the stock was valuable or not, regardless of whether it was .understood or agreed orally that payment should be made when the concern was making money, and this evidence admitted tends to vary the terms of the contract sued upon, and was therefore improperly admitted.

It is insisted here that the judgment was given against the weight of the evidence. We have carefully read the entire bill of exceptions to ascertain whether that be so. It is a strong circumstance, almost amounting to a presumption, that the defendant would have been unlikely to enter into this contract and turn it over and deliver it to the plaintiff, containing his promise to pay $700.00, without requiring the execution by the plaintiff of his promise contained in the contract. That is one strong consideration in favor of the plaintiff’s claim. Again, after the expiration of these periods of time named in the contract, plaintiff placed his claim in the hands of an attorney for collection, who testifies that he talked with the defendant two or three times, and on each occasion defendant promised to pay, but sought to have more time given him in which to pay.

On neither of the occasions did he claim that the plaintiff had not performed his contract, nor did he on either of them deny his liability to pay the $700.00. More than this, the’defendant did make two payments during the year of 1897, and after the two installments had become due. He turned the money over directly to the plaintiff, and on both occasions promised to pay the balance when he could, and on neither occasion claimed that he was not liable to pay because the plaintiff had not performed his part of the contract.

The plaintiff testifies positively to his performance of the contract before the delivery of it to him. He is .corroborated in this by his wife, so that the plaintiff's evidence is corroborated by the circumstances of the case, and this is not disputed, save and except by the evidence of the defendant.

When the defendant was first called as a witness, he was asked if he had these certificates of stock, and he answered that he did not think that he had them. That be did not have them unless they were in a book which he then and there had in his possession. On looking in the book he failed to find them, and concludes that he did not have the -certificates of stock.

Judge Handy, and Handy & Fuller, for Plaintiff in Error.

Ham & Ham, for Defendant in Error.

He afterwards, on further examination, testifies positively that the stock was not turned over to him, but we think -the weight of the evidence would have authorized a judgment in favor of the plaintiff in this case, and that the court below should have so found upon the evidence and the law. For the reason that the court erred in the admission of the evidence referred to, and because the judgment is contrary to the weight of the evidence, it is reversed.


author: King, J.,

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    —Oct. Term, 1898 )
    Before King, Haynes and Parker, JJ.
    THE TOLEDO STOVE COMPANY v. WALTER F. REEP.

      Evidence as to motive and intention — When competent—
    (1) , A party whose motives or intentions are called in question and made an issue in the case, may testify as to his motives and intentions.

      Employer & Employe — Injury from defective machinery — Promise tojepair—
    (2) . Where a master has expressly promised to repair a defect in the machinery, the employe, without becoming guilty of contributory negligence, may continue to work thereon such reasonable tim6 after the promise as would be necessary for the employer to perform his promise; and in an action for damages for injury from such defective machinery, suffered after such promise by the employer, it is competent to ask such employe whether his belief in and his reliance on the promise of the employer to repair induced him to continue to work on such defective machine.

      Independent contractor — Distinction, as against employe—
    (3) . The distinction between an independent contractor and a mere employe, is that a party to be an independent contractor must have undertaken the work as a job, and that in carrying out that job he is not subject to the control of the employer.

      Error to the Court of Common Pleas of Lucas county.
   King, J.,

(orally)

Reep brought an action against the Toledo Stove Co. in the court of common pleas, and recovered a verdict and judgment for $3,000, on account of injuries claimed to have been received while in the employ of thei stove company, from the bursting of an emery wheel on which he was grinding stove castings.

The claim most urged in the trial court and here was and is, that Reep was employed, not by the stove company, but by an independent contractor, who in this case was named Soden, and that the stove company owed to him, Reep, no duty such as a master owes to his servants, in respect either to the machinery upon which he worked or the place where he was at work.

The first material objection I will notice is to the evidence. This question was asked of the plaintiff below when he was testifying:

“Q, What if any effect upon your continuing in your work did Soden’s promise have, when he said he would have the wheel repaired? A. Well, it had effect enough to keep me to work. I relied upon him seeing it was fixed.”

A motion to strike out was denied, and an exception taken. There are other objections in the record, made at the time of the trial, to evidence offered showing the declarations of this man Soden. I think they all might'be disposed of, except this one, perhaps, with this remark:, that whether competent or not depended upon the determination of the question at issue, whether Soden was an independent contractor, or whether he was an employe of the defendant and the foreman in charge of this particular work, over the plaintiff. That is what the controversy was about, and the court could not very well, at the situation of the case when offered, exclude that testimony; for if he was foreman, bis declaration about this work and this machinery, and his declarations, if he made any such, that he would have it repaired if anything was the matter with it, were all competent to show the knowledge of the company and notice to it of defects in the machinery, since the plaintiff himself testified that he knew of the defects, therefore he could not be excused from continuing the use of this defective machinery except for the single reason that his employer had promised him that he would fix it within a reasonable time. So that evidence, we think, is all competent, and the effect it will have depends on what the court and jury shall determine upon the question of law and fact raised in the ease, whether Soden was contractor or foreman.

The objection to this question is that the plaintiff could not testify to his belief, or to the fact that he relied upon these promises. There is no authority either way upon that precise question that we have been able to discover. The general authority is stated in works upon evidence and in cases where the question has been called out, that a party whose motives or intentions are called in question and made an issue in the case, may testify to his motives and to his intentions. Just how far he can go, in what variety of cases he may do that, perhaps the courts have not yet defined. One case coming pretty close is that in 152 Mass., 160 and 162, where there was a defective machine in use by an employe, and he complained to the master about it, and the master, instead of promising to repair it, told him that there was no danger from the use of it — to go on and use it. He was asked whether he believed what the master told him when he told him there was no danger, or whether he relied on that. He said he did. It was held by the supreme judicial court of Massachusetts that that was a competent answer to be given to the jury in that case. I say that comes nearer to the question before us than any case that we have been able to find. It is held in Manufacturing Co. v. Morrisby, 40 Ohio St., 148, and by many other courts of this country, that one is excused from the charge of contributory negligence on account of his use of machinery that he knows is defective or out of repair, upon his showing that he complained of its defects to the person authorized to repair it, who promised to repair it; and with that express promise to repair it he may then continue in the work a reasonable length of time thereafter. This is stated in Shearman & Redfield on Negligence, par. 215, p. 373, Vol. 1, as follows:

“There is no longer any doubt that where a master has expressly promised to repair a defect, the servant does not assume the risk of an injury caused thereby within such a period of time after the promise as would be reasonably allowed for its performance, or indeed, within any period which would no< preclude all reasonable expectation that the promise might be kept.”

That doctrine, as I say, has gone into the law of the land, and has become such by its adoption by the courts, notably in 100 U. S., 213, one of the first of a series of cases in this country, which has been followed in many states. The language of the court in 100 U. S., is the exact language which I read from this author.

So that the only question which the jury had to pass upon' was whether this promise was made, and whether, having been made, the employe relied upon it, and so relying, continued at his work. It strikes this court, to inquire of the party himself when he has testified to such promise as the witness had in this case, “What effect did that have upon you ?” “ What reliance, if any, did you place in that statement?” or some form of question like that, is competent. The question here was what effect it had upon his continuing work. That is not objectionable, we think, because it is leading, and certainly is not objectionable because the answer would be a decision of the controverted point. We think he may testify to that when called out by some proper question. Ordinarily the witness will not be allowed to tell what he thought, but in that kind of a case it seems to us that he may testify that he relied upon these promises, and believed them. Other circumstances may appear in the case showing that he ought not to have relied upon them — 'that he had no business to rely upon them — and in that case he assumes the risk. Instead of promising to repair it, the employer may have said he would not repair it. He cannot then complain if injured, because his right to continue in the employ after his knowledge is not because of his notification to the employer, but because the employer induced him to remain and continue in the service under the promise that the defect should be remedied.

The question mainly argued is raised here by the charge of the court. It is excepted to that the court gave plaintiff’s fifth and sixth requests as modified, and that the court also modified and gave defendant's fifth request, and also for refusing to charge as requested by the defendant on page 233. I will read to indicate what the point was.. The same question appears substantially alike in all the requests that were given and in the charge as well. Plaintiff’s request five excepted to was in these words:

“If the defendant was engaged in operating its factory, and had charge and control over the machinery being operated therein, then it was bound to exercise reasonable and ordinary care to have the machine at which plaintiff was-working in a reasonably safe condition. To ascertain whether in fact the plaintiff was an employe of the defendant, and that the defendant was in duty bound as toward' him to exercise this reasonable and ordinary care to keep the machinery in order, you will consider all the evidence as to the terms and conditions of plaintiff’s hiring, by whom he was paid, and what the real arrangement was between the plaintiff and those engaged in operating the stove works.

Also plaintiff’s sixth request:

“If the plaintiff was employed by Soden, and Soden was an independent contractor of the defendant and had assumed the duty to keep the machinery in repair, then the defendant company is not liable for the negligence of Soden as such contractor, if he was negligent in not repairing the machine. But if, on the other hand, by the terms of the contract between Soden and the defendant, Soden did not engage to keep the machinery in repair as a part of his duty under his contract, then Soden was not an independent contractor to such an extent as to relieve the defendant from the duty to look after and keep the machinery in repair.”

Defendant’s fifth request is too long for me to read here but it embodied the idea which the defendant was there seeking to have the court give, that under the arrangement which it claimed had been made with Soden be was an independent contractor; but the court modified it by the words “if the employer retained no control over the machinery and repairs thereon,” then the company would not be liable. The court had injected into it the words “or over the machine and repairs thereon.” So on page 233, perhaps, the question may fairly seem to have been presented. Counsel for defendant below stated to the court:

“In view of the modifications which the court has made to the requests, I desire to submit a verbal request to the court on a particular feature of the case which was not given by the original request. I ask the court to say to the jury that if they find that Soden was a contractor for mounting stoves at a contract price for the work, complete, and to employ his own labor for that purpose, and that the company reserved to itself the control of the machinery, with the right and duty to repair the same, then that a notice by the plaintiff to Soden of the defective condition of the machine, and a promise by Soden to repair the same, would not constitute a promise binding upon the company which would entitle him to recover by reason of his reliance there-on."

This the court refused to give.

This indicates, then, that the parties were undertaking to have the court define exactly what would constitute an independent contractor. The court refused to say to the jury that if it was the arrangement between them that the company had reserved to itself the repair of the machinery, and then that certain other elements had existed, that would make an independent contractor; but on the contrary, the court directed that if certain elements existed which on the trial both parties insisted upon, and if the company had reserved the right of control over the machinery and repairs, then Soden was not such an independent contractor as would relieve the company from liability for its negligence in failing to repair the machinery employed there in that factory, or in that place. Perhaps, whether this ruling was correct, and whether the court ought or ought not to have given the request, depends a little on the state of the testimony. It is true there was a dispute as to some portions of it, but as to the material questions there was but little, if any, dispute. The stove company was engaged in the work of building stoves for the market — constructing them, creating them out of raw iron .and steel. They took the iron and moulded it and formed it into different shapes and castings that were required for the production of stoves. They cleaned and polished these castings. They put them together into the form of completed stoves. They crated and sold, and shipped them when they were sold. All these things were done in this factory. They had, of course, a moulding room, and a different room where they put together the castings, called “mounting.” Before the plaintiff Keep went to work,there had been an arrangement in writing entered into between one Scullion and the company, by which Scullion had contracted with the company that he would mount their stoves at so much per stove and furnish his own help; and this agreement provided that he would care for the machinery used in the mounting room. The process of mounting was largely manual, except that it was found that these castings, when they came from the moulding room where they had been polished, had some inequalities upon them which required filing or grinding in order to make them fit together when put into stoves. Holes would have to be drilled out where they had filled in; slots or creases would have to be fitted or ground. This was done with large and small emery wheels, and with files and punches and other implements and tools which were necessary to the operation. Among the tools used was an emery wheel about eighteen inches in diameter and about one-half or five-eighths of an inch in thickness, placed upon a shaft which, when in operation, revolved at about 1,800 revolutions a minute; and it was while grinding the casting of a stove door upon this emery wheel that the wheel broke or buret and flew apart, and some piece struck Reep and injured him. The wheel was a narrow or thin wheel, and was used for grinding in those places where a wider wheel could not be used. It was necessary sometimes to grind the lugs or hinges of a door; and that I think was perhaps what he was doing at this time. The work of mounting stoves after the castings had been made and polished • was done in this room, and a contract was made with Scullion that he should mount them at so much per stove, employing his own help, using the room, tools, and machinery of the stove company therefor. There is some evidence to show that he kept the time of his men, and that be paid them. There is also other evidence to show that he did not pay them. It is conclusive, I think, that he left suddenly-abandoned this work — went away; and when he left he had not paid his men, and that the company, at least on that occasion, did pay them, and I think perhaps it had been paying them before. There was then a time when Scullion was away that there appears to have been no regular foreman by contract. Soden had been there at work, during the time that Scullion was there, and it is said that he had an interest with Scullion in this contract. He went away, and was away some months, and after Scullion departed, Soden was brought back there by the company, and he came in and took up the business of mounting stoves. He did not undertake to fulfill or perform Scullion’s contract, but he made an arrangement of his own with the company. He was a skilled workman in mounting stoves, and had worked at that business for some time. The arrangement which he made, about which there does' not seem to be any dispute, was that he should attend to the mounting of these stoves, furnish his own men therefor; that he should receive so much a stove; that the company should care for the machinery and repair it, if repairs were needed; that he, Soden, would do that work for the company as theii representative upon their paying him such a price as it was worth. For mounting the stoves he was to receive the price that was agreed upon for mounting stoves. At the time Soden went in there Keep was at work, as he had been employed by Scullion. These stove mounters received the price per stove that was generally understood and agreed upon among themselves, but it was somewhat less in amount than that received by Soden. In other words, Soden would receive a percentage upon their work of mounting stoves as pay for his services. He had charge of it, He employed these men — put them in there. He had charge of the work in the mounting room, but he did not have exclusive charge. . The evidence shows that the superintendent of the company was repeatedly there many hours, and almost every day, examining and watching . the work of mounting; that they had an inspector who inspected all the stoves before they were taken away from that room to the sales room or the store room; that the power was furnished by. the company; that the company furnished this general manager there; furnished the engineer, fireman, and bookkeeper; that the wages of these men were paid from pay-rolls that were reported at the office. There is a dispute whether Soden kept the time or the company kept it, but the evidence seems to indicate that both kept it. The company had a man who either kept it or got it from Soden. But he was around there for the purpose of getting it. I ought to say what he had to keep was the number of stoves that were mounted. They had a man who did that, and Soden did it. Soden was interested in keeping it, of ■course, because upon the number of stoves mounted depended the amount of his compensation.

It perhaps was not a case in which the court would have been justified in saying directly to the jury that this man •Soden was or was not an independent contractor, or that he was not the foreman. For the purposes of this case it is •only necessary to hold that he was their representative, first, in making the promise that this machinery should be vepaired; second, in the knowledge he acquired that it was •out of repair.

There never was an actual contractual relation between ihe stove company and the plaintiff below.

It is upon these facts that the court made the charge that I have stated, and refused to give the requests. It is not ¡always clear, as will be seen from an examination of decided -cases, whether one be an independent contractor or an employe. The question has been discussed by several courts. .1 refer again to this text-book — Shearman & Redfield, sec. 164 — where it seems to be discussed:

“Although in a general sense, every person who enters into a contract may be called a contractor, yet that word, for want of a better one, has come to be used with special reference to a person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect of all its details. The true test of a ‘contractor’ would seem to be, that he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.”

Again in the following section I read:

‘‘One who has an independent business, and generally serves only in the capacity of a contractor, may abandon that character for a tim6, and become a mere servant or agent, and this, too, without doing work of a different nature from that to which he is accustomed. If he submits himself to the direction of his employer as to the details of the work, fulfilling his wishes, not merely as to the result, but also as to the means by which that result is to be obtained, the contractor becomes a servant in respect to that work. And he may be a contractor as to part of his service, and a servant as to part. Whether he works as contractor or as servant, is a question of mingled law and fact, which it is scarcely possible to decide by any fixed rule.”

There is an interesting case discussing this question in 15 Mont., 582; also in 137 Mass., 123. In the latter case the question arose upon the following instruction to the jury:

‘‘You will observe that, although there has been evidence introduced upon the one side and the other, as to the actual control which the trustee, through one of their number, exercised over t.he work, and that is all proper and competent evidence for you in considering the matter, yet that the absolute test is not the exercise of power of control, but the right to exercise power of control. If, for instance, there was nothing in the case but this contract, and there was no question that the parties were acting under it, if that is the view you take of it, and that the injury was occasioned by the negligence of Elston, then, although the trustees should be across the Atlantic, nevertheless, under the intructions I give you, if they retained the power to control and direct this work, they would be liable; because it is the possession of the right, of interference, the right of control, that puts upon a party the duty of seeing that the person who stands in that relation does his duty properly.”

The court say about that case:

“In this case, for the reasons given in the instructions, we think the defendants are liable for injuries occasioned by the negligence of Elston and his employes in doing the work which the defendants requested Elston to do.

In that case there was no question but that the employes were the employes of Elston originally.

In Cincinnati v. Stone, 5 Ohio St., 38 and 42, is a discussion of that same question, and also in Tiffin v. McCormack, 34 Ohio St., 638. Neither of these cases, it seems, were cited in the argument. The cases, however, differ from that in the Massachusetts report which I-read, and from the Montana case. The case of Tiffin v. McCormack, supra, is important in that it discusses what constitutes the distinguishing element in the case of contractor or foreman. This was a case where the city of Tiffin hired a person or made a contract with a person, to go into the city’s quarry and quarry stone therein, and break them up into a pile, and pile them up in the quarry so that they could be measured, and to furnish and find the tools for the said work — all for, and at the agreed price of one dollar per perch as measured in the quarry. It was held:

“That the true relation between the city, as proprietor of the stone quarry, and Ardner, was that of master and servant, instead of employer and independent contractor,”

They say on page 643:

“There was no ‘job’ or defined quantity of work contracted for. The services of Ardner were subject to be determined at the pleasure of either party. The compensation was to be measured by the quantity of labor performed. It appears to us to have been an ordinary contract for work and labor, which creates, between the employer and employed, the relation of master and servant, within the meaning of the law in regard to that subject. It is true that the service, namely, the quarrying of stone in the employer’s quarry, was to be done by the use of powder and tools furnished by the employe, but this condition in the contract, did not affect the legal relations between the parties. It was significant only as a matter affecting the rate of compensation. And it is also true that the city had no other or further control over Ardner in said work. Whether this language means that the city exercised no other or further control, or that the city contracted with Ardner that it would not exercise any other or further control over the work, makes no difference. If it were a mere failure to exercise control, it was the fault of the city. If it was part of the contract with the servant, that no other or further control should be exercised by the city, it is enough to say that a master can not exonerate himself from responsibility to third persons, which the law imposes upon him, for injury resulting from the misconduct of his servant, by contracting with the servant that he will not exercise any control over him, and will not, therefore, be responsible for any injury that he may wrongfully inflict.”

. I read that clause because it is applicable when we are undertaking to arrive at the relation which existed between the stove company and Soden, no matter by whom the action was brought. But it is based, I want to say, upon a case where the principles of independent contractor would seem to be very much more plainly apparent than in the case at bar. In the case at bar it is a manufacturing company. They are seeking to produce stoves, and they employ men for that purpose — some to do one kind of work and others another kind of work, to produce a given thing, to-wit: a completed stove, ready for the market. One man makes a piece, another man takes it and files it, and puts it and other pieces together. A room in their factory is devoted to mounting these stoves. As a method of having that work done,or determining its compensation, they make an arrangement with one man to put these stoves together, and pay him so much per stove, and furnish themselves not only the material, but all the tools and machinery, and expressly contract that they will keep it in repair — -not saying that that would not have been their legal obligation, legal duty, but they expressly contract with this man that they will keep this machinery in repair, and employed him tor that puprose. . So that not only might he be the foreman in this room, but he was by express contract the direct representative of the company to keep this machinery in repair.

It is held over and over again that the obligation of th® company to keep its machinery in repair is a direct obligation, and that one injured by its failure to do that, or through the failure of the company’s servants to properly repair, that he is not defeated of his cause of action because of the failure by the company of a direct duty to repair a defect; and if a co-seivant should fail to repair when ordered by the company, that negligence itself would not be one that would defeat an action by a co-servant who was injured, without knowledge, of course, of his co-servant’s negligence. He represents the company in repairing the machinery, and the company contracted with Soden ip this case to keep the machinery in repair. They, as I say, furnished all these things, and they set him there in charge of the work; and there is no agreement that he should remain there one month, or one year, or one day: there is no agreement which would prevent them discharging him at any time. There is no limit in the contract providing how many stoves he shall set up. The very distinguishing element which makes an independent contractor, is that it must be a contract for a job, and this is not a contract for a job; it is a contract to work for the stove company as long as the stove company want this man to work for them by the piece — nothing else. It is a piece work, so called — $ very common method of employment. In fact, it enters almost every manufacturing establishment where they are manufacturing completed articles for sale. Here they only put together the stoves at so much a stove. Again, this company oversaw all this work. They paid these workmens directly from their office; and there was nothing in the relationship between Soden and the men, or the company and the men, which notified them of the relationship which might exist, created by the contract, between Soden and the company.

So far as these charges were concerned, I want to say we do not think they were to the prejudice of the plaintiff in error. The court seems all the time to lay stress, either in his refusals to charge or in his charge which he gave, upon the idea that the company retained the right or the control over the machinery. I deem that of very little importance. It is true the company did retain it by express contract; but it occurs to me that under this contract, if they agreed with Mr. Soden that he should keep the machinery in repair, make these stoves at so much per stove, and only’ contracted that particular work in the creation of a stove, it would not change the relationship a particle; that the company would still have been bound by the obligation which the law imposed upon it to furnish machinery reasonably fit for the work to be done, and would be liable for negligence in failing to keep it in repair. But here they relieve the case from doubt on that question by the express agreement that they will keep the machinery in repair, and employ him as their representative to do it. There is no dispute on that point. That being so, then nothing in these charges that were given could be prejudicial to the plaintiff in error. The refusal to give those which were asked by the plaintiff in error was not prejudicial, for the same reason.

The court, in my judgment, might have gone very much •further on that subject. I think as a matter of law, on the evidence in this case, that Soden was an employe of the stove company, and nothing else; that he was the foreman of that mounting room, and nothing else; and that in employing and discharging men he acted solely and only as 'the agent of the stove company.

Brown & Geddes, Charles Smeddau, King & Tracy, for Plaintiff in Error.

Hurd, Brumback & Thatcher, for Defendant in Error.

The effect of this contract was to determine the compensation that should be paid for the mounting of the stoves; and.in effect it was to make Soden foreman over that room, not only in the repair of the machinery, but in employing and discharging the men.

We are satisfied without discussing it that the verdict is not against the weight of the evidence.

The judgment will be affirmed.


author: Giffen, J.

text:
    (First Circuit — Hamilton Co., O., Cicruit Court
    —Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    CAROLINE V. BELL v. EMILY G. PISTORIUS.

      Employe employed by several parties jointly, for several services— Liability for injury through his negligence—

    (1) . Where three families hire a man to serve them all as a coachman, each of such families paying one-third of the wagss, and the carriage and horses belonging to different ones of such three families, the relation ' between the three families is not that of partnership; and where, while driving a member of one of these families, a party is injured by the uegligence of such driver, such family who at the time is using the carriage and horses, is alone liable for damages for the injury.

      Violation of city ordinance as conclusive evidence of negligence—
    (2) . A charge that where a party drives his carriage around a street corner in a city faster than a walk, in violation of an ordinance of such city, such violation of the ordinance of itself amounts to negligence independently of all other facts, is erroneous.
   Giffen, J.

Emily G. Pistorius was injured by a carriage and horses •driven by one James Ward, and the question raised is— was.he the servant of the defendant Caroline V. Bell at the time, and such as to charge her with responsibility for the accident? The circumstances of his employment as coachman are as follows: He had formerly been in the employ of Mrs. Ciroline Bell, and when he came the second time she said to him, “James, you are to serve all three families, and do the work in the stable. You thoroughly understand. If you are willing to do that and come and live with us, and serve the three families, why we will hire you. My son was sitting by the side of me, and agreed on that point. Mrs. Bishop agreed to it. ”

The three families referred to were those of defendant, her son Charles Walter Bell, and her daughter Mrs. Carrie Bishop. The three parties were to pay, and did pay, each one-third of his wages. He was to serve whichever family should call on him, except that Mrs. Caroline V. Bell should have the preference. Upon the day in question the-carriage in use was the property of defendant, while the horses belonged-to Charles Walter Bell, permission to use the carriage having been first obtained from Mrs. Caroline V. Bell.

Ou the day of the accident, Mrs. Chas. Bell had ordered the coachman to harness the team of horses belonging to her husband, and drive down into the city for the purpose of consulting a physician, and after so consulting him, directed the coachman to drive to a pharmacy on Fourth street; and while on this errand the accident occurred. It is contended that the employment of th3 coachman by the three parties constituted the latter partners, and hence all liable for his negligent acts. This result would follow in the event of a partnership relation,because of the partners being treated as principal and agent,

It is said by Judge Day in Harvey v. Childs & Potter, 28 Ohio St., p. 321:

“Although a partnership may be said to rest upon the idea of a commuuity of profits, nevertheless the-foundation of the liability of one partner for the acts of another, is the relation they sustain to each other, as being each principal and agent. That relation, it would seem, then, constitutes the true test of a partnership liability, and rests upon the just foundation that the joint liability was incurred on the express or implied authority of the party sought to be charged.”

In the case at bar the three parties do not combine their property, labor or skill in any enterprise or business, nor do they share iu the profits and losses of any enterpirse, nor are there any other facts showing the relationship of principal and agent constituting a partnership,

Mrs. Charles W. Bell on this day had complete control of the horses and driver,as she did on all other occasions at her election, not as the agent or bailee of Caroline V. Bell, but as the agent, if at all, of her husband, Charles W. Bell, who was one of the joint employers of the coachman. Having once obtained such control for a particular day, she was only exercising a right accruing by reason of the contract made by her husband, and without interfering with the rights of Caroline V. Bell and Mrs. Bishop. This case is distinguished from those cited in which it is held that, although the person hiring the horses and driver has control of the same during their use, yet the liveryman who lets-them for hire is liable for the negligence of the driver. The right to drive and control the driver on this occasion, as well as all others, was derived from the contract of employment, and was not greater in one than the other of the employers. Mrs. Charles W. Bell represented her husband as one of such employers.

We conclude that defendant Caroline V. Bell was not liable for the negligence of the servant in causing injury to plaintiff.

The only other error complained of, is the paragraph of the general charge of the court designated 6, to-wit — -

Peck, Shaffer & Peck, for Plaintiff in Error.

John S. Conner and Joseph W. O’Hara, contra.

“If you find that the defendant, through her agent, the coachman, drove or caused the carriage to be driven around the corner of Fourth and Race streets faster than a walk, I charge you that this was negligence on the part of the defendant Caroline V. Bell. And if you further find that by reason thereof the plaintiff was injured, without fault on her part, then the plaintiff is entitled to recover.”

This charge relates to a violation of the city ordinance, and in effect instructs the jury that such violation amounts of itself to negligence, that, independent of any other facts, it is conclusive on that question. We think this was error. Meek v. Pennsylvania Co., 38 Ohio St., 632.

Nor does the case of C. H. & D. R. R. Co. v. Murphy, cited by counsel, support the charge in question. In that case the court was reviewing the testimony, and found that there was such a violation of the ordinance as showed negligence; but in the case at bar, the instruction directs the jury to find a violation of the ordinance conclusive evidence of negligence, independent of any other fact or circumstance that might excuse or justify such violation.

Judgment reversed and cause remanded.