author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Swing and Smith, JJ.
    JOHN MANNS v. THE CITY OF CINCINNATI et al.

      Corner lot assessment — Facts.—On the facts found by the court, as hereinafter stated, the lot of the plaintiff for the purpose of assessment for a street improvement, did not front on Carson avenue for the whole distance it abuts on said avenue, viz., 417 feet, and should be assessed for the improvement of said avenue only on 243% feet thereof.

      Same — Estoppel by signing petition.' — The signing by the plaintiff of a petition for such improvement, did not operate to estop him from claiming that the assessment made against his lot therefor, was excessive.

      Same — Former adjudication — Different grounds of action. — In a suit brought by the plaintiff against the defendant to enjoin the collection of the whole assessment levied upon his lot for said improvement, oh the ground that it was wholly void for other reasons, a decree was rendered against him. The questions raised in that case were wholly different from those presented in this case, and the plaintiff is not barred by that decree from asserting and maintaining his claim in this.

      Voluntary payment of installments of assessment cannot be recovered. —Where there have been voluntary payments of excessive installments of such an assessment, the plaintiff is not entitled in an action like this, to a credit on future installments, for the excess so paid — especially is this the case as to such payments made more then one year prior to the commencement of such an action, in which he practically seeks to recover the amount claimed to have been improperly paid.
    Appeal from the Court of Common Pleas of Hamilton County.
   Smith, J.

This is an action brought by the plaintiff to enjoin what is alleged to be an excessive assessment, made upon property owned by him, for the improvement of Carson avenue on Price Hill, on which his lot abuts lengthwise. The lot abuts on Warsaw avenue on the south 121.75 feet, 121.75 feet on Laclede avenue on the north and 417 feet on Carson avenue on the west. The lot was platted to front on Warsaw avenue, which is an improved street, and the residence of the owner fronts thereon. The carriage drive enters the lot from the Warsaw avenue and leads to the dwelling, as does the sidewalk. The lot, however, also fronts on Laclede avenue, which is unimproved. Carson avenue is now being improved, and the method adopted by the city authorities is to assess the cost of the imrovement thereof upon all the lots and lands bounding and abutting thereon by the front foot, and the assessment upon the lot of the plaintiff for its proportional share of the total cost of the improvement was upon 417 feet, the total length of the lot on Carson avenue, viz: 417 feet. The plaintiff’s lot is surrounded by a fence, with the principal entrances and gates on Warsaw avenue as has been said; but on Carson avenue, not far distant from Laclede avenue is a gateway, which the evidence shows is occasionally used in this way: When wagons' bring coal to the coal house of plaintiff, which is situated in the rear of his dwelling, they enter at the main driveway on Warsaw avenue, and go to the coal house and the coal is unloaded and the empty wagons are driven out of the gateway on Carson avenue. Of course this gateway could be used for other purposes, but in the past the use of it has been principally as before stated. Under the decision of the Supreme Court in the Haviland case, 50 Ohio St. 471, it would seem clear, that if this gateway on Carson avenue was not there and used in the manner stated, that this lot of the plaintiff could not be properly assessed for each foot that it abuts on Carson avenue, viz: for 417 feet. In that case we think it should be assessed only for the length that the lot fronts on Warsaw avenue, and on Laclede avenue, viz: 121.75 feet on each, 243-| feet in all — for the lot also fronts on the latter avenue, and in such case it would seem equitable and right to adopt this method.

But we are of the opinion that there mere uáte of this gateway in a fence of a temporary character, does not have the effect of making this lot, under the decision referred to, front on Carson avenue so that each foot abutting thereon should be assessable for its construction. We are aware that courts have differed in their views as to this, and an early decision by the Supreme Court fixing the law on this point is most desirable. In the absence of such authoritative ruling we have adopted in this particular case the rule which seems to us calculated to do substantial justice between these parties. We do not doubt that persons may have so improved a corner lot, by the erection of buildings thereon, as to make each side thereof assessable by the front foot abutting on the t.wo streets. But we think it has not been done in this case.

It is urged by 'the Corporation Counsel that as the plaintiff signed the petition for this improvement he can not complain of the amount assessed against him. The plaintiff in this case did no more than sign the petition. This did not estop him from objecting that the mode in which the improvement was made or that the amount of the assessment was not warranted by the statute. 39 Ohio St. 281.

We axe further of the opinion that the plea of res adjudieta filed by the city is not supported by the evidence. It is true, as pleaded, that the plaintiff and others heretofore, by proceedings in the Superior Court, sought to wholly enjoin the collection of any assessment on the ground that it wholly void for the reasons stated in the petition. This was-adjudged against the plaintiff and that the assessment made-was valid and the petition was dismissed. The question whether the lot of the plaintiff was assessed for too many feet was not before the court or raised by the pleadings, and-therefore was not necessarily tried and determined.” 10 Ohio St. 45; 5 Wall. U. S. 592.

The petition in this case was filed August 4, 1894. It alleged that the*'assessment was made payable in ten yearly installments, the first being payable in 1892; that on the-twenty-ninth of January,- 1892, plaintiff paid the installment then payable by the terms of the assessing ordinance; that on February 9, 1893, he paid the second installment, and on May 28, 1894, the third installment. There is no averment that these installments were paid under protest or on compulsion of any kind. That on August 3, 1894, he tendered payment of the amount he admitted to be due on the other installments, taking credit, however, for the-amounts claimed to have been overpaid in the three payments named, but the auditor refused to accept it unless he-paid the whole of the future assessments, and thereupon! this action was brought, seeking to have the amount of excess paid by him credited on the first installment coming due-thereafter, and to have the collection of the amount of the other installments illegally assessed against him enjoined. The question then arises whether he is entitled in law to have the amount of the payments already made by him, over and above what was really due at those times, credited on the next assessment falling due. It is claimed that this should be done on the authority of the case of Pike v. Cummings, 36 Ohio St. 213. That was a case where the estimated cost of the improvement was over $69,000, and the assessment was made upon this basis. But it turned out that the actual cost was about $18,000 less than was estimated. Pike, the owner of an assessed lot, paid two installments of the assessment, and in an action brought by him to enjoin the collection of the other excessive installments, the court held that the over-payments made on the first two installments should be credited to him on the one next falling due, and enjoined the collection of the excess in the remaining installments.

This case is similar in some respects to that at bar. But there surely could have been no claim on the part of the defendant in the Pike case that the city was authorlized to assess upon the lots and lands abutting upon the improvement a sum greater than the cost thereof. Its action in doing so must have been void as to the excess; and it does not appear, from the statement of the case, that the city was claiming the whole assessment to be valid, as in the case here. We think that the case must be considered in connection with that of Wilson v. Pelton, 40 Ohio St. 306, subsequently decided. It was there held tht in an action against a treasurer to recover taxes paid, which had been illegally assessed, there could not be a recovery where the taxes were paid voluntarily, and without protest or objection. It is true that there may be some question whether this, so far as this particular question is concerned, is an action under section '5848, Revised Statutes, which gives to the court the right to enjoin the illegal levy or collection of taxes or assessments, and of actions to recover back such taxes or assessments as have been collected, but we think it is, or that the same rules should be applied in the two cases. And if under this statute, taxes paid can not be recovered back, if illegally assessed, that in a like action credit should not be given for the excess paid on future installments. In an action under this secton, no recovery can be had for taxes or assessments improperly assessed, which have been paid, unless the action be brought within one year after such payment . If this part of the section applies to this case, clearly there could be no recovery as to the first two installments paid by the plaintiff, for the action was not brought within the year after the payment. But we think on the facts stated, the payments made were voluntary. There was no protest or objection made. The city was asserting the right to -the whole, and the right so far as these installments were concerned, semas to have been conceded by the plaintiff, and the payments should stand.

Charles F. Droste, for plaintiff.

Corporation Counsel, contra.

The decree will be that the collection of so much of the remaining unpaid installments as was under our ruling improperly charged against this lot, be enjoined.


source: Caselaw Access Project

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Nov. Term, 1891.)
    Before Cox, Smith, and Swing, JJ.
    CHARLES FRANK v. ROSE LEVY et al.

      Agent procuring sale of property delivering deed and absconding with purchase money — When agent of vendor. — On the facts in this case, as found by the court, Loud had apparent and actual authority, as the agent of the plaintiff, to deliver the deed made by the plaintiff to the defendant, and to receive from her the purchase-price for the property. And the fact that the defendant paid to Loud, in good faith, a sum of money for his services while he was acting as the agent of the plaintiff in negotiating the sale of the real estate to the defendant, did not prevent Mrs. Levy from relying on such payment — the parties having agreed that Loud might receive a part or the whole of his commissions from her.
    Appeal from the Court of Common Pleas of Hamilton County. v
   Smith, J.

The question in this case is, whether it is shown by the evidence that there was either an apparent or actual authority on the part of Loud, acting as the agent of Frank and wife, to deliver to Mrs. Levy, or her agent, the deed executed by Frank and wife to her of the real estate in controversy, and to receive from Mrs. Levy, or her agent, the amount of the purchase money coming to the Franks.

The facts in the case were substantially these: Loud was acting, in the first instance, as a real estate agent and broker, on behalf of Frank and wife, to sell this property. They had known him for years, and he had transacted similar business for them. They evidently trusted him, and, as the evidence shows, did not contemplate that his connection with the matter should cease, when he had brought about a sale of the property to Mrs. Levy for $5,750. After this he was active in assisting Mr. Strieker, who was acting for Mrs. Levy and the building association (which was proposing to loan to Mrs. Levy, on a mortgage on the property, the sum of $4,000, in part payment of the purchase price), to clear up some defects in the title. When this was done, he presented to Mr. Strieker an unsigned deed, to see if the form was satisfactory to him, and took it to have it executed. When he went to Frank’s home for this purpose, with the officer to take the acknowledgment, Mrs. Frank, to whom the conduct of the business had been intrusted, Frank himself (being an invalid), was absent from home; but the deed was then acknowledged by him and given to the notary to take to the place where Mrs. Frank was, to get her acknowledgment thereto. At this time, however, Mr. Frank executed . an assignment of an insurance policy which he had on the property, and which was to be transferred to the purchasers, and Loud took it to be delivered to them. In the afternoon, Loud and the notary found Mrs. Frank, and she executed the deed, and it was then taken by Loud, who told her that he would see her the following day, and she made no objection to his taking the deed. What else, if then or at other times, was said between her and Loud is not testified to by any witness. They had some conversation together, after the execution of the deed, out of the hearing of the notary.

It had been arranged between Loud, who claimed to represent the Franks, and Mr. Strieker, who was acting for Mrs. Levy and for the building association, that a meeting was to be held at Strieker's office at 10 o’clock of the morning of January 28, 1890, to close up this transaction. Mr. and Mrs. Levy and the officer of the association were there, but neither of the Franks or Loud appeared. Loud telephoned that on account of the trouble in getting the deed acknowledged he could not be there until after noon. It was then arranged by those present that the business should be closed up by Mr. Strieker; that the executed mortgage of the.Levys to the association and the checks of the association to Mrs. Levy for the $4,000 should be left with him to do so, and on the deed being delivered he was to receive it and pay the money. The checks were indorsed by Mrs. Levy, and the residue of the purchase money handed to him. All this money and the checks were deposited by Strieker to his own credit in bank. In the afternoon Loud came with the Frank deed, and delivered it to Strieker, who paid him the purchase money due to the Franks by his check, payable to the order of Loud, as agent of Frank. Loud drew this money, embezzled it, and fled. The deed and mortgage were filed for record the same day by Strieker, acting for the respective grantees.

It must be conceded that so far there is no evidence of any express authority given by the Franks, or either of them, to Loud to deliver the deed so intrusted to him by them to Mrs. Levy, or to receive the purchase money for them. No witness has testified that he heard any such authority given. But we think the proof mentioned goes very far to show an apparent authority to do this, and to justify Mr. Strieker in receiving the deed and paying the money as he did.

Porter & Pendigs and J. D. Cread, for plaintiff.

Paxton & Warrington and Wm. Strieker, for defendant.

But, if there was doubt on this point, there is evidence which satisfies us that such authority had, in fact, been given to Loud by Mrs. Frank. We have the evidence of several witnesses, entirely disinterested, and on which we rely, that shortly after Loud had disappeared, and before she knew of the fact, that Mrs. Frank, on at least two occasions, stated and admitted that she had authorized Loud to do this and bring the money to her,’ she being too busy to attend to it. These admissions, taken in connection with the other evidence in the case, convince us. that such authority was, in fact, conferred upon him, as much so as if we had the-statements of witnesses who heard it given.

This being so, we think the claim of counsel for the plaintiff, that the relief sought by Frank should be granted for the reason that Mrs. Levy paid Loud fifty dollars for his services about the matter for her, made him her agent instead of the agent of the Franks, is not well founded. It may be that she should not have done this; but it appears that was agreed between Mrs. Frank and Loud that if he could, he might get a part or the whole of his commissions from Mrs. Levy. Undoubtedly he was the agent of the Franks; and though the result of our decision is, that the loss will fall upon them, and they suffer a great loss, it must be remembered that a contrary decision would result in an equal loss to the Levys, whom we find have not been in the wrong. And as the authority to do this was conferred by the plaintiffs upon Loud, and the loss has been incurred through him, they must bear it. The petition will therefore be dismissed.

Affirmed by the Supreme Court without report. Oct. 1, 1895.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ.
    NATHAN B. DANNERBERG v. HARRY W. ASHLEY.

      Action for damages by employe against person maliciously procuring' his discharge from employment. — An action lies in behalf of an employe against a person who has maliciously procured the employer to discharge such employe from employment in which he is engaged under a legal contract, for a certain period, provided damage result to the employe from such discharge.

      Same — Uncertain term of service. — An action will also lie where the period for which the employment is to continue is not certain, if damage result from the discharge; even though, from inability to ascertain the amount of the damage, a verdict for nominal damages only should result.

      Same — Action lies against such third party, although no action will lie against employer. — The fact that no contract, nor any legal right of the employe as against the employer is violated by the employer, or that no action can be maintained by the employe against the employer for such discharge, does not prevent a recovery against a third person who has maliciously procured the discharge, and which discharge would not have occurred but for such procurement.
   Haynes, J.

Petition in error was filed to reverse the judgment of the court of common pleas, for the reasons:

“1. The court erred in sustaining the demurrer to the plaintiff’s original petition.
“2. The court erred in granting the motion of the defendant to require plaintiff to make his amended petition more definite and certain.
“3. Said court erred in granting the motion of the defendant to strike out from the plaintiff’s amended petition the portions described as one and two in the motion and the part of paragraph three designated in motion, including the following words: ‘ Because he had given testimony adverse to said Toledo, Ann Arbor & North Michigan Railway.’
“4. The court erred in sustaining the motion of the plaintiff to strike out certain portions of the amended petition and to make certain other portions of his amended petition, as shown in the orders of said court.
“5. The court erred in sustaining the demurrer o.f the defendant to the second ¿mended petition of plaintiff.
“6. The court erred in ordering the plaintiff’s petition to be dismissed and rendering judgment in favor of defendant against the plaintiff for the costs.”

The plaintiff in error filed a petition in the court of common pleas against the defendant in error, Harry W, Ashley aiid The Toledo, Ann Arbor & North Michigan Railway Company, in which he set forth certain alleged grievances that he had against the defendants, and a motion was made to strike out portions of the petition, which was granted, and an amended petition was filed against Harry W. Ashley alone, and the railway company having dropped out of the suit, it discontinued as to that.

That was met by a motion again to strike out, and that motion, as to certain portions of the allegations of the petition, was allowed. Thereupon a second amended petition was filed, to which a demurrer was interposed, and that demurrer was sustained; and the plaintiff, not desiring to amend, a judgment was rendered for the defendant.

The amended petition is as follows:

“Plaintiff says that for many years before the happening of the occurrences hereinafter mentioned,he had pursued the employment of a railroad man, having been engaged in various branches of railroad service, in all of which he had given satisfaction to his employers and had thus been able to establish a reputation as a steady reliable and competent railroad man, which was of great value to him.
“A short time before the 25th of December, 1889, a certain action was pending in the Circuit Court of the United States for the Norther District of Ohio, wherein The Toledo, Ann Arbor & North Michigan Railway Company was defendant, and one Clifford F. Eddy was plaintiff. In said case plaintiff had been subpoenaed as a witness against said railway company, and had given his testimony, which was given because required to be given, and was the truth; yet the managers of said railway company and Harry W. Ashley, its general manager, took offense at plaintiff’s action in said case.
“Plaintiff says that on, or about, the 26th of December, 1889, plaintiff was and for some time had been in the employ and service of the Pennsylvania Railway Company, a railroad corporation operating a railroad between Toledo and other points eastward, in' the capacity of yard-master, for which service he was receiving a compensation at the rate of two dollars and thirty-five cents per day. Said employment was a continuous one, and under the arrangement he had with his employer would have continued uninteruptedly, and he would have continued to receive compensation at said rate for his service with the reasonable prospect of promotion to better positions with higher pay, had it not been for the malicious interference of the defendant, as herein complained of.
“The said defendant, Harry W. Ashley, being at said time the General Manager of The Toledo, Ann Arbor & North Michigan Railway Company, by virtue of his said position and by virtue of certain business arrangements for the use of the yard of'said Pennsylvania Company at Toledo, the exact nature of which the plaintiff does not know, had special influence with the managers of the Toledo Division of the said Pennsylvania Railway Cofnpany,the division with which plaintiff was connected.
“Plaintiff says that said Harry W. Ashley,with the intention of punishing said plaintiff because he had given testimony adverse to said Toledo, Ann Arbor & North Michigan Railway Company, and wrongfully and maliciously contriving to injure this plaintiff in his means of livelihood, and to cause him to lose his situation, used his influence with the officers of said Pennsylvania Company, and especially with J. W. Morris, the superintendent of the Toledo Division thereof, and persuaded him to discharge this plaintiff from the service of said company.
‘ ‘ Plaintiff says he is informed and believes and so charges the fact to be, that among other means used to bring about his purpose,said Ashley maliciously represented to said Morris that this plaintiff had induced Clifford F. Eddy to bring his action against the Toledo, Ann Arbor & North Michigan Railway Company, and that he, said plaintiff, was a person who promoted and stirred up law suits by railroad employes against their employers, and was a mischief-maker, all of which accusations were false and without foundation.
“ Plaintiff says that said Ashley’s action was a malicious interference betweene him and his employer, and was intended to prevent plaintiff from pursuing peacefully and uninterruptedly plaintiff’s service in the employ of the Pennsylvania Company.
“That the said Pennsylvania Company,through its officers (and) agents, actuated and influenced solely by the persuasions and representations of said Harry W. Ashley,refused longer to permit plaintiff to continue in its employ, after said December 26, 1889, although up to that time their relations had been harmonious, and the plaintiff’s services satisfactory to his employers.
“Plaintiff says, that a railroad man’s reputation and ability to secure employment among the railroads of the country is greatly impaired by being discharged from the service of •any railroad, and especially a railroad of the rank among railroad corporations of the Pennsylvania Company; so he says he was injured in his position and reputation and means of support by the action of said defendant.
“Plaintiff says that after the loss of his place as aforesaid, he endeavored for a long time to secure other work, without avail, until the 16th of June, 1890, when he secured aplace with another railroad company less deirable than the one he had lost.
“Plaintiff says, that by the disgrace and humiliation he buffered by the injury to his reputation in his avocation by the unlawful and malicious acts of said defendant, he has been damaged in the sum of one thousand dollars, and that he was damaged in the sum of one thousand dollars by being deprived of his position and means of earning a livelihood.
“So he prays judgment against said defendant Harry W. . Ashley, in the sum of two thousand dollars, his damage as aforesaid.’’

The court of common pleas being of opinion that the third amended petition did not state a cause of action, sustained the demurrer, and judgment was rendered against the plaintiff.

The case is one which is of rather novel impression; at least no case of this kind is to be found, we believe, in the reported decisions of the Supreme Court of this state; and the question has been discussed ably and earnestly by counsel upon both sides of the case.

After giving the authorities cited very careful consideration, and after a full discussion of the question, we are of the opinion that the amended petition does state a cause of action against the defendant.

Before proceeding to discuss^that a little, I may say^that we are of the opinion that(the action of the court in striking portions of the former petitions from the files was proper, for the reason that there were statements made in the nature of statements of evdence, and those matters, so far as we are able to see, are matters that the party would be entitled to offer in evidence upon the trial of the case under the allegations of his second amended petition.

The cases which have been cited by counsel for the plaintiff in error, are: 23 Florida, 206 and 26 Atlantic Reporter, 505, which is a case decided by the Court of Appeals of Maryland, and has not been received in the regular reports at our library yet.

Also some other cases collateral to these and tending to elucidate the propositions found stated in those cases, and being: 11 East, 273; 107 Massachusetts, 505; 70 North Carolina, 601; 106 Massachusetts, 1; 70 Maine, 353; Schouler on Domestic Relations, 467; Cooley on Torts, 337, and some English cases.

The defendant, to maintain his proposition,cited the opinion of the court below: 13 Lea, (Tenn.) 507; 32 Central Law Jour. 273; 12 Ohio St. 294; 75 Maine, 294; 75 Maine, 225 (Heyward v. Tillson.)

The cases in 13 Lea and 75 Maine, which we have examined, are directly against the propositions that are contended for by the plaintiff in error.

The 23 Florida and the 26 Atlantic Reporter, are directly in favor, as wc understand, of the propositions that are claimed by plaintiff in error. The majority of the decisions that are cited by the plaintiff, in regard to the relation of an employe to his employer, were, as a general rule, cases where the action was brought by the employer against parties who had been inducing, seducing or driving away the employes from the employment of the employer. The right of an action of that kind seems to have been somewhat ancient; indeed it is said to have arisen originally, or in part, out of a statute that was enacted by some ancient king of Great Britain — perhaps Edward I. But in the progress of the expansion of the common law, it has, by judicial decisions, come to cover a variety of cases where one party is engaged in some form to render services for another, as, for instance, an actress to her general manager, and so, with an application where suits are brought for inducing, in some form, a person who has agreed to render services to another, from redering the service to that other person, has been broadened out so that the class of cases is quite varied and quite extensive.

The cases in which actions have been brought by a person against another for inducing the employer to discharge the employe from his employment, are not very numerous, and yet it seems to us that they rest substantially upon the same principle as the other class of cases. The objection ordinarily urged in regard to il$S matter is,that there has been no violation of any contract between the employer and the employe; that is to say, that in the class of cases where they have refused to maintain actions, at least, they have found that the employer had a right to discharge the employe at any time he saw fit, that the employment was one at will, so far as the employer was concerned. It is said that, perhaps, in some cases, where they had caused the violation of the contract between employer and employe, that a cause of action might arise. And it is urged that because the employer may discharge the party — has a right to do it at any time — ■ that the employe has no remedy. And that seems to be the doctrine that is maintained, discussed and followed in the • Tennessee case and in the Maine case to which I have re- : ferred; but it seems to us that that is not a proper statement of the gravamen of the cause of action, or of the substance of the cause of action. The cause of action — grievance, that is, complained of is — that a third party, intending to injure the employe, has induced the employer to discharge him ( from his service, with intent that he may not have employ-i ment,that he may be cut off from employment,and that,therefore, he has been cut off from employment which was profitable to him,viz.,to earn a living and to maintain himself and his family. It is not that as between him and the employer, ; the employer has done that which he had no legal right to do; it is that between him and the party that interfered wantonly to sever these relations and to break them up, he has a grievance, which it would seem to us is a legal grievance, land one upon which he may maintain a right of action.lt seems ¡to us that it is no less a grievance to him, that the party has linduced his employer to discharge him, than it would have been if the party had planted himself in front of the place ¡of his employment and by force had prevented him from entering and performing the service and receiving the pay therefor.

The first case cited is the Florida easel I will read three proposition of the syllabus:

I. “An action lies in behalf of an employe against a person who has maliciously procured the employer to discharge such employe from employment in which he is engaged under a legal contract, for a certain period, provided damage result to the employe from such discharge.
“2. An action will also lie where the period for which.the employment is to continue is not certain, if damage result from the discharg; even though, from inability to ascertain the amount of the damage, a verdict for nominal damages only should result.
‘“3. The fact that no contract, nor any legal right of the employe as against the employer is violated by the employer, or that no action can be maintained by the employe against the employer for such discharge, does not prevent a recovery against a third person who has maliciously procured the discharge, and which discharge would not have occurred but for such procurement. ”

That action was brought by a man named Atkinson against W. D. Chipley,who procured his discharge from the service of a firm named Kehoe & Walker, for whom he had worked and for whom he expected to work for some time, and it was also said with the promise that he might ultimately become a partner with them. A judgment was rendered in favor of the plaintiff for $740; but the judgment was set aside, more from general principles — for the reason that, upon some minor matters,the court had erred in its charge to the jury; but the general propositions which I have read, were maintained by the court upon argument of the question, and there is quite a full discussion, not only of the cases which have been cited by counsel, but of many other cases,in the course of the decision.

The Maryland case is the case of Lucke v. Clothing Cutters’ & Trimmers’ Assembly; No. 7507 K. of L. of Baltimore, (Atlantic Rep. vol. 26 p. 505) and was decided by the Court of Appeals of Maryland Mar. 16, 1893. In that case Lucke, who was a master cutter, had entered into the employment of a firm doing business — Rosenfeld Bros., doing business and trading as the “New York 'Clothing House. He was engaged at a salary of $30 jer week, under an agreement that they would take him upon trial and afterwards, if his work was satisfactory, they would give him permanent employment, but with the right of the employing company to discharge him at the end of any week. After he had been at work some little time, the Clothing Cutters’ and Trimmers’ Assembly notified the Clothing House to discharge him, be-' cause he was not a member of a certain Union. He had made application to become a member, but that was rejected, because, as they said, they had all the men they could care for at the present time, and they then reiterated the demand that he be discharged, and so the Clothing Company discharged him at the end of a certain week. He sued, setting up a certain contract, and the right to recover was maintained by the Court of Appeals of Maryland, although the judgment itself was reversed for the want of certain proofs and it was sent back for a new trial under the system of practice which seems to obtain in that state, whereby an amendment was tobe made in the petition,and the case to be tried upon the facts of the case as found. But the Court of Appeals of Maryland (the citations are so long that I cannot read them), cite and approve this case of Chipley v. Atkinson in 23 Florida, and also cite other authorities to maintain the right of the plaintiff, Lucke, to maintain this action. I will read a little from the decision—

“The question of a contract vel non, enters into the consideration of this case, but upon proper averment in the declaration ought to play but a small part in its determination. ‘Where a contract would have been fulfilled, but for the false and fraudulent representations of a third person, an action will lie against such person, although the contract could not have been enforced by action. Benton v. Pratt, 2 Wend, 385. In the case of Harvester Co. v. Meinhardt, 9 Abb. N. C. 396, 397, the court said: ‘A distinction has been sought to be made between the cases where there has been an unexpired time contract and cases where the services where by the day, or by the piece; but I do not think such a distinction rests upon any sound reason. * * * In such case the injury to the property and business of the employer would not consist so much in breaking the contract which existed, as in the loss of profit derived from the work of the laborer, if he continued in the employment, and the probability or certainty of such loss would be, in each case, a question of fact,’ and, of course, for the jury. Mr. Addison, in his work on Torts, (folios 9-14) thus summarizes the law: ‘Interference by fraud or force with the free exercise of another’s trade or occupation or means of livelihood is a tort; such as preventing people by the use of threats or intimidation, from trading, with the plaintiff's vessel in a foreign port, or dealing at the plaintiff’s shop, or sending their children to the plaintiff’s place of business. * * Where a violent or malicious act is done to a man’s occupation, profession or way of getting a livelihood, there an action lies in all cases. ”

Then the Court proceeds to discuss very fully the case of Chipley v. Atkinson, 23 Florida.

There is a case in 107 Massachusetts, which discusses the general principles at page 555, where many of the objections that are urged against the maintaining of this action were also urged against the maintaining of that action. That action, however, arose where parties were interfered with to induce them to leave the employers’ service, and an action was brought, and the Supreme Court discuss many of the cases that have been referred to down to the time of that decision.

“The declaration, in its first count, alleges that the defendant did ‘unlawfully and without justifiable cause, molest, obstruct and hinder the plaintiff from carrying on their business of manufacturing and sale of boots and shoes, ’ with the unlawful purpose of preventing the plaintiffs from carrying on their said business, and wilfully persuaded and induced a large number of persons who were in the employment of the plaintiffs,’ and others ‘who were about to enter into’ their employment,‘to leave and abandon the employment of the plaintiffs, without their consent and against their will;’’ whereby the plaintiffs lost the service of said persons, and the profits and advantages they would otherwise have made and received therefrom, and were put to large expenses to procure other suitable workmen, and suffered losses in their said business.
“This sets forth sufficiently (1) intentional and willful acts (2)' calculated to cause damage to the plaintiffs in their lawful business, (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part, of the defendant (which constitutes malice), and (4) actual damage and loss resulting.

A. L. Smith, for defendant.

J. K. Hamilton, for plaintiff.

“ The general principle is announced in Com. Dig. Action on the Case, A: ‘In all such cases where a man has a temporary loss or damage by the wrong of another, he may have an action upon the case to be repaired in damage. The intentional causing of such loss to another, without justifiable cause, and with the malicious purpose to inflict it, is of itself a wrong. This proposition seems to be fully sustained by references in the case of Carew v. Rutherford, 106 Mass. 1, 10, 11.”

And the Court therefore, held in that case that the action may be maintained.

While the ca'se, as I have stated, is, perhaps, somewhat novel in Ohio, still we are clearly of the opinion that upon the application of the pinciples laid down in these various cases, and upon the facts stated in the petition the plaintiff below is entitled to maintain his action; that he is entitled to nominal damages, at least, if nothing more.

The judgment of the court of common pleas will, therefore, be reversed and the case remanded to the court of common pleas for further proceedings. The demurrer will be overruled.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Swing and Smith, JJ.
    JOSEPH V. IRWIN v. LORENZ SCHEUERER.

      Evidence of Title — Records destroyed by Court Souse fire.- — 'On the facts found the plaintiff in entitled to a decree of the court, cancelling the deed procured from him, though owing to the destruction of the records of the county in the court house fire, he was not able to show that at the time the conveyance was executed he had any title to the land described therein.

      Same- — When abstract of record and decree made by abstract company not admissible. — The evidence offered by the plaintiff tending to prove that in the office of an abstract company in this city is what purports to be an abstract of the record and fina] decree rendered in a case lately pending in one of the courts of this county, the record of which was destroyed by fire, and which tended to show title to this land to have been in the plaintiff when the deed was executed, and the evidence further tended to prove that the said abstract was in the hand-writing of a former proprietor of such abstract company, such abstract was not in this case competent evidence.
    Appeal from the Court of Common Pleas of Hamilton County,
   Smith, J.

We think the deed in question was obtained by the defendant from the plaintiff under such circumstances, and on such representations, as entitles the plaintiff to have it set aside and held for nought. At the instance of one of the counsel for the defendant, who was aware that the legal title to this lot, and, perhaps, the equitable title also, was in the plaintiff; application was made by him to L. W. Irwin, a cousin of the plaintiff, for his assistance in procuring from him a deed for the property. It appears that L. W. Irwin, without any knowledge as to the facts, was of the opinion that his cousin had no title to the land, and undertook to try and get the deed for a mere pittance. He was then acting as the agent for the defendant, and at the instance of his attorney, wrote to plaintiff,, enclosing a deed prepared by the attorney of the defendant, conveying the property to defendant, and asking him to sign and return it, saying: “The conveyance has been passed upon, but the fire destroyed the original deed, and this is for the purpose of restoring it. Your signing it will save a little time in restoring the record. I think I can get $20 on the delivery of the deed. ” There is conflict in the evidence,as to whether L. W. Irwin was informed by Mr. DeWald, acting as attorney for the defendant, that the deed was wanted for the purpose of restoring the original deed, lost by the court house fire. .It would seem most probable that it was; but whether it was or not, we think makes no difference, the representation was madejby one acting as the agent of the defendant — was relied upon by the plaintiff, and the representation was not true in fact, and defendant knew it was not, or his attorney knew it, as is testified. The defendant obtaining the deed on the representations of one acting for him, stood in the same position as if the representations had been made by himself. If he accepts the fruits of the transactions, he took them subject to the burdens.

The plaintiff seeks the cancellation of the deed, as having thus been wrongfully procured from him. He adds in his petition that he was the owner in fee of the property described, at the time he executed the deed, but did not than know it, and acted upon Irwin’s letter, relying on the representations therein made. The defendant denies that he was the owner of it.

We think that on the competent evidence in this case, the plaintiff has failed to prove a good title in himself at that time. The evidence of Mr. Black, manager of the Abstract Co. of this city, was heard under exceptions, and the question of its competency reserved by the court for consideration. It was to the effect that among the files of his office is what purports to be an abstract of the record and final decree in a case lately pending in some of the courts of this county, wherein the title to this land was in question in a proceeding between the heirs at law of Archibald Irwin, who by the evidence produced was shown to have had the legal title, at his death, to this property,and the father of plaintiff, whereby it was adjuged that said Archibald only held the title thereto as trustee of his brother, and by which decree he was ordered to convey the title thereto to his brother, of whom plaintiff was the sole heir at law, his father having died intestate. Suffice it to say, that if a transcript of this record and decree, was competent evidence, it with the other evidence in the case, showed the title to the property in dispute to have been in plaintiff at the time of the execution of the quitclaim deed in question.

The evidence of Mr. Black was to the effect that one' Bis-sell some years ago was the proprietor of the abstract agency in this city — that it purported and undertook to make an abstract of the record of all cases in the courts-of this county which concerned the title to real estate in the county. That the company with which Mr. Black is connected, purchased said abstracts, and now owns them; that among them is the abstract of the case in question in Bissell’s hand writing,but when or by whom it was made, or how correctly, he does not know. It was proved that the record of the case, which it purports to abstract,was destroyed in the court house fire of 1884.

On this state of fact we think the abstract itself or a copy of it is not admissible here. If there was proof by the person who made it, or by some person who compared it with the original that it was correct, we would be disposed to hold it competent; but we know no rule of law in the absence of such proof, which would, on the proof made warrant the admission of it.

But we think that we would not be justified in refusing to grant to plaintiff the relief which he seeks, because he cannot now prove a perfect and indefeasible title to the property in himself at the time he executed the release. We do not undertand that this is essential, or that the action before us is one to try his title. The defendant has in the manner shown procured him to release all of his interest therein for the paltry sum of $30.00 when its true value, as shown by the evidence, is $3,000, and when the defendant shows no other title to the land in himself. He evidently acted on the theory that plaintiff had an interest therein. If he had, he is entitled to have this release so procured set aside. But if reasonable ground is shown that the existence of the deed is, or may be a detriment to him, or might be used against him in any way, we think he is entitled to have it cancelled. And we are of the opinion that while evidence of the character mentioned, would not. be admissible in this case under the general principles of law, that under the statutes for the restoration of records lost or destroyed by fire (secs. 5339a and post. Rev. Stat.), and the very liberal rules there laid down for the introduction 'of evidence in proceedings-brought by parties in interest to restore such records, such evidence might and probably would be entirely competent. But such proceedings must be brought by parties in interest, and while this deed stands plaintiff would seem to have none.

W. A. Hicks, and J. W. Wolfe, for plaintiff.

Chas. H. Phares, of Von Seggern, Phares & De Wald and Wm. Plarrup, for defendants.

In our judgment, then,on the facts shown, plaintiff is entitled to have such deed set aside, and a decree entered accordingly, the price that was to be paid plaintiff being still in the hands of L. W. Irwin, defendant’s own agent, of course, should be returned to him.


author: Scribner, J,

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    JOSEPH MILLER v. EZRA SOUTHWORTH ET AL.

      1. Questions fov special findings submitted to jury — Failure of jury to answer — Consent by party to discharge of jury waiver of all objections. — Where questions for special findings are submitted to the jury to answer, and the jury in their verdict answers several of the questions, and as to others answers that they cannot agree, but counsel upon inquiry by the court whether they have any objection to the discharge of the jury consent thereto and the jury is discharged accordingly and judgment entered on such verdict, such consent by counsel is a waiver of all objections to the verdict and judgment.

      2. Questions submitted to jury on matters as to tohich there is no evidence — Failure of jury to answer. — Under the statute a party has no right to insist that a jury shall pass upon and answer special interrogatories where there is no testimony before them- warranting any finding on those matters.

      3. Verbal admission at trial by party of correctness of adversary's account, provided the transactions were not gaming transactions, and finding of jury they were not — Power of court on such verdict ’ to render judgment for amount of such account. — The court is not authorized by any rule of law to proceed and render judgment for a sum of money claimed by the defendants in their cross-petition upon a mere finding by the court thatcthe plaintiff on the trial admitted. that that sum was due, providing the transactions com-plained of were not gaming transactions, and the jury having found that they were not such. Mere oral admissions on the trial would not empower the court to go forward and find, as a matter of fact, that the facts so orally admitted on the trial were correct, and the party would have a right to contest any such claim,,
    Error to the Court of Common Pleas of Lucas County,,,
   Scribner, J,

This is a proceeding in error to reverse the judgment of the court of common pleas in a case disposed of in that court, in which the plaintiff in error here was the plaintiff, and the defendants in error in this court were the defendants.

On the 22nd of April, 1893, the plaintiff brought an action against the defendants to recover a sum of money alleged by him to have been lost to the defendants, or paid to the defendants, in gaming transactions. The gaming transactions complained of or referred to were certain deals in wheat or grain, which the plaintiff alleges were wagering contracts, fictitious in their character, and simply conducted as a means of betting — a method of betting — upon the price of grain at certain designated periods.

The defendants’ answer in the action denied that they ever entered into or were in any manner ■ connected with any gaming transactions for the plaintiff, or-that they had'anything to do with any wagering contracts, as alleged- by him. They, said that they were commission merchants,’ engaged in the business of buying and- selling-grain in-the market, and’ that as such merchants they were, at the time stated in the' pleadings, employed by the plaintiff to act for him in certain transactions. In substance it is admitted that the plaintiff paid certain sums of money, which are specifically set out in the pleadings, to the defendants, and which were used by" them to purchase and sell grain for the plaintiff. They aver that at certain dates they bought grain for him, on his request, which grain they sold at prices which they state; but they say that these transactions were all legitimate, honest, fair, and without any taint of fraud or of illegality in any manner whatever. They also set out in their answer the moneys which had been paid to them, the quantity of grain that they had purchased on account of plaintiff, the date of purchase, the sum of money which they had received from the sales of grain which they had paid to the plaintiff; and' they assert that there was a balance due them upon these transactions of $646.78, for which, by way of cross-petition, they prayed judgment with interest for the period.

Afterwards, on the 13th of May, 1893, the plaintiff commenced a new action — No. 34,605'. In this action the plaintiff complained that the defendants had converted to their own use certain grain which he had placed in their hands to care for and sell for him at such times as he might order and direct; and he avers that the defendants converted this grain to their own use, and disposed of it without any authority from him, and prayed judgment for the value of the grain which he said they had so converted.

To this petition the defendants also answered, and connected with the answer a cross-petition, in which they denied all the substantial averments by which it was sought to fix liability upon them. They denied that the plaintiff had placed the grain in their hands to be sóidas he might order, or that they violated his instructions in any particular; and they set forth again the same identical account which formed' a- part of their answerto the first petition that was filed, and made substantially the same answer to the petition as was made to the first petition; and they said that upon the account made a part of their answer and cross-petition in this second case, there was due them $646.78, with interest as claimed in their answer in the first case. Upon that they prayed judgment.

The plaintiff replied to this answer and cross-petition, and in that reply, among other things, there .were substantially the same matters as appeared in the original petition, the first petition, filed by him in the case; that is, he alleged that the transactions had with the plaintiff were substantially gaming transactions; that they entered into an arrangement by which, substantially, the plaintiff was to bet or wager on the price of grain, and that he was to be paid differences, there being no purpose nor intention to sell grain for the plaintiff, but merely to bet or wager as to the price of the grain. The material averments of the answer and cross-petition were denied, in so far as they were capable of a separate denial. In the first case there was a cross-petition filed, designated in terms to be a cross-petition. In the answer to that, all the statements of the cross-petition were denied, substantially. In the second case there were matters pleaded by the defendants by way of answer, and then there was added a paragraph — not a separate and distinct cross-petition, but a paragraph in which the defendants prayed that the averments of their answer might be treated as a cross-petition, and that they might have judgment for the sum of $646.78, with interest.

The material averments of the answer in the second case, which also constituted a cross-petition, were denied.

By the verdict of the jury there was returned substantially a verdict for the defendants; but this appears in the record:

“On the 19th day of November, 1894, being the 49th day of the September term, 1894, an order in said cause was made, an entry of which appears on the journal of said court in the words and figures as follows, to-wit:
“(34523) Joseph Miller v. Ezra L. Southworth et al. By consent of all parties, the action, wherein the plaintiff herein is plaintiff, and the defendants here are defendants, No. 34,-605, on the docket of this court, is consolidated herewith, and the petition in said cause No. 34,605 shall be deemed the plaintiff’s second cause of action herein, and the defendants’ answer in said cause No. 34,605 shall be deemed an answer herein to such second cause of action, and the plaintiff’s reply shall be taken as a reply thereto. So much of the defendants’ answer in said cause No. 34,605 as constitutes a cross-petition, being based upon the same account as that set forth herein, is withdrawn.”

So that, according to this arrangement, or this agreement, and the order of the court, the first action —34,523 —which was an action to recover money lost in gaming, was consolidated with the second action — 34,605-—-which was an action to recover the value of the wheat alleged to be converted by the defendant, so that the gaming cause of action constituted the first cause of action in the case, and the action for the alleged conversion, constituting the second action, was to be treated as the second cause of action in the proceeding. And the pleadings in the respective actions were to be taken as filed properly to the different causes of action; so much of the defendants’ answer in cause No. 34,-605 as constituted a cross-petition, being based upon the same account, is withdrawn, so that the second cross-petition, being that filed in the suit for alleged conversion, was withdrawn from the case. And the case, therefore, stood for trial upon the first cause of action, to recover money for alleged gaming transactions, and the second cause of action, to recover for grain of the plaintiff alleged to be converted, and upon the answer of the defendants in each of the cases respectively, and upon the cross-petition filed in the first case, whereby the defendant claimed that upon the facts set forth they were entitled to recover from the plaintiff the sum of $646.78. That was the state of the issues.

“And the plaintiff admits the correctness of all items in the account attached to defendants’ cross-petition herein, except only the credit items of August 22, 1891, August 25, 1891, and all credit items of March 11, 1893; and except the debit items of July 30, 1892; September 1,1892, and all debit items subsequent to March 1, 1893; and the several amounts stated in plaintiff’s petition in cause No. 34,523, aggregating $4,650, alleged in said petition to have been paid to defendants as margins, and the validity, of the several contracts on which said amounts are alleged to have been paid as margins; as to all of which excepted matters the parties are left'to their proofs.”

Then the journal proceeds:

“On the 23d day of November, 1894, being the 53d day of September term, 1894, a verdict in said cause was rendered, an entry of which appears on the journal of said court in the words and figures as follows, to-wit:
“(34,523) Joseph Miller v. Ezra L. Southworth, George B. McCabe, and George A. White—(34,605) Joseph Miller v. Ezra L. Southworth. George B. McCabe, and George A. White.—Joseph Miller v. Ezra L. Southworth et al. This day came the parties by their attorneys, and thereupon a jury being called, one came, to-wit: (and the names of the jurors are entered,) who being duly impaneled and sworn, well and truly to try the issues joined between the parties, having heard the testimony offered by the parties, the argument of counsel and the charge of the court, and being fully advised in the premises, now report their verdict in writing in the words and figures as follows, to-wit:
“Cause No. 34,605 by consent is consolidated with cause No. 34,525. The jury impaneled in the above entitled action having been sworn well and truly to try the issues joined between the parties and a true verdict to render, for verdict find and say, that we find for the defendants. R. G. Bacon, Foreman.”

The following answers to interrogatories propounded by the court were returned by the jury with their verdict:

(This is the first intimation we have anywhere in this record that any interrogatories were submittted to the jury. It appears here that they were propounded by the court to the jury. And the journal proceeds:)

“Joseph Miller, plaintiff, v. Ezra L. Southworth et ah, defendants. Request for Special Findings. — Plaintiff requests the court to direct the jury in the case to make and return special findings, in writing, upon the following questions of fact, to-wit:

The return by the jury shows that as tc the first request they answered ‘yes;’ as to the second request they answered ‘yes’; and as to the third the same answer; as to the fourth, the same answer, as to the fifth,, the same answer; as to the sixth, the jury say that they are unable to answer; as to the seventh, they answer; as to the eighth, they answer; as to the ninth, they answer; as to the tenth, they say that they are unable to answer; and as to the eleventh, they say that they are unable to answer.

Then this appears in the record:

“This cause — -giving the title — coming on to be heard upon the motion of the plaintiff to set aside the verdict, and for a new trial herein, the court on consideration thereof,overruled the same; and to the said order of the court overruling the said motion said plaintiff by his counsel excepts. And the period of fifty days is allowed for the allowance and signing of a bill of exceptions herein, and it is ordered that the journal of this term be for that purpose kept open for said period.’’

Now comes a very material part of the record, relating to the action of the court.- The court, having overruled the motion for a now trial, and allowed him fifty' days for the allowance and signing of a bill of exceptions, took this action:

“And this cause coming on to be further heard on the motion of the defendants for a judgment against plaintiff, in accordance with the prayer of defendants’ cross-petition herein, the court finds that on the trial of this action it whs by the defendants admitted that the account annexed to said cross.-petition was in all respects correct except only the items thereof alleged by plaintiff to represent or be based upon gaming transactions, and except also the items thereof representing or based upon certain sales of the grain described in plaintiff’s petition filed in cause No. 34,605, heretofore consolidated herein, and that said defendants also admitted that the said items so excepted as aforesaid were arithmetically correct. And the court further finds that thereby there was left to the jury heretofore impaneled herein only the issues whether or not the transactions between plaintiff and defendants, alleged by plaintiff to represent or be based upon gaming trasactions, were in fact gaming transactions, and whether or not the defendants were authorized to sell for plaintiff’s account the said grain so described in said petition filed in said cause No. 34,604; that said issues were determined by the verdict of the jury in favor of said defendants; and that there is due to said defendants from said plaintiff upon the account set forth in said defendants’ cross-petition herein, including interest to the first day of this term, to-wit: the 24th day of September, 1'894, the sum of seven hundred and six and 39-100 dollars; and the court does now grant the said motion of said defendants. It is therefore considered by the court that the said defendants, Ezra L. Southworth, George W. McCabe, and George A. White, have and recover from the said plaintiff the said sum ©f $706.39, with interest from the 24th day of September, 1894, together with their costs herein expended, taxed at $ — •—■; to which said orders, findings, and judgment said plaintiff by his counsel excepts. ’ ’

He is allowed fifty days in which to take a bill of exceptions, and the record shows there was taken a bill of exceptions.

The material questions arising upon this recordare these; (not, of course, the only questions that are made by counsel, but the questions which seem to us to be material and controlling): The jury having failed to answer three of the interrogatories submitted under the statute,having in their report stated their inability to answer them — the court then inquired of counsel, as appears by the bill of exceptions taken in the case, as follows:

“The Court (to counsel): Q. Is there any objection to the discharge of the jurors, gentlemen? •'
“Mr. Brown (of counsel for defendants): A. I don’t know of any.
“Mr. Thurston (of counsel for plaintiff): I don’t know of any.
“The court: The jurors are discharged.”

The plaintiff below insists that it was error in the court to have discharged the jury and to have entered judgment upon the general verdict. The statute,as amended, requiring the court to give the jury the especial requests, further provides that if the special findings in any regard differ from the general verdict — are contrary to the verdict, or are inconsistent with it, that the special findings shall control and overrule the general verdict; and they insist that it was the duty of the court, instead of rendering judgment upon the general verdict, to have discharged the jury on account of their inability to agree. In the first place, it is not clear to us but what the questions that were answered by the jury sufficiently covered all the material questions in controversy in the case, and would have warranted the court to render judgment upon the general verdict, notwithstanding the failure of the jurors to agreo upon an answer to each of the three interrogatories which were not answered. But however that may be, we are clearly of the opinion that by the consent of the parties to the discharge of the jury, notwithstanding their failure to answer the three interrogatories, or notwithstanding their statement or the peculiar manner in which that statement was made, all objection on that ground was waived by the plaintiff when,by his counsel, he consented to a discharge of the jury; and that doctrine appears to be settled by the au thorities. But over and beyond that, there is nothing in the bill of exceptions and, nothing in the record which contains any statement that any evidence was .submitted to the jury tending to show any particular matter in the case. The bill of exceptions simply shows this:

“Be it remembered, that at the September term, 1894, of the Common Pleas Court of Lucas County, Ohio, to-wit: at 9 o’clock A. M. on the 23rd day of November, 1894, the jury returned a general verdict for the defendants, as appears of record in this cause, and at the same time returned their answers to the first, second, third, fourth, fifth, seventh, eighth, and ninth interrogatories, included in the plaintiff’s requests for special findings of facts, as appears of record in this cause, but returned no answers to the interrogatories therein contained numbered respectively No. 6, No. 10, and No. 11.”

It does not appear in this bill of exceptions that any evidence at all was submitted to this jury, except inferentially-. There is no statement made upon that subject. It may be fairly inferred from what is stated that testimony of some kind had been submitted, and upon some matters; but whether it was of such character as required the jury to answer these interrogatories, it does not appear, either in the bill of exceptions or in the journal entry. And we suppose the bill of exceptions should at least show that evidence was given tending — but not, perhaps, requiring the parties to set out the testimony — to show this, or that, or the other thing. Then there would be some reasons tending to show that the interrogatories were proper in form, and that an answer should be given. But we suppose that no party, under the broad language of the statute, has a right to insist that a jury shall pass upon and answer certain special interr rogatories, when there is no testimony before them warranting any finding as to those matters; there must be some testimony tending to support some proposition.

For these reasons we think the plaintiff in error is not entitled to have the verdict of the jury disturbed.

Then, as to the action of the court. The jury having returned a general verdict for the defendants upon the issues joined on the pleadings, the court, upon the motion of the defendants below,entered judgment for the defendants upon that general finding, and upon the allegations of their cross-petition, for the sum claimed by them to be due, viz: $706.39. Now, the court bases its finding upon what I have read — upon the admissions which it says were made by the plaintiff upon the hearing. On the trial “it was by the defendants admitted that the account annexed to said cross-petition was in all respects correct, except only the items thereof alleged by plaintiff to represent or be based upon gaming transactions, and except also the items thereof representing or based upon certain sales of the grain described in plaintiff’s petition filed in cause No. 34,-604, heretofore consolidated herein; and that said defendants also admitted that the items so excepted as aforesaid were arithmetically correct. And the court finds that thereby there was left to the jury heretofore impaneled herein only the issues whether or not the transactions between plaintiff and defendants, alleged by plaintiff to represent or be based upon gaming transactions, were in fact gaming transactions. ”

As to that we say that the court was not authorized by any rule of law known to us to proceed and render judgment for a sum of monej claimed by the defendants in their cross-petition upon a mere Sliding by him that the plaintiff on the trial admitted that that sum was due, providing the transactions complained of were not gaming transactions. Mere oral admissions on the trial would not empower the court to go forward and find, as a matter of fact, that the facts so orally admitted on trial were correct: the party would have a right to contest any claim of that sort.

As to the record, we are strongly of the opinion that the statement in the journal entries as to what the parties admitted, was not.proper matter to enter in a journal entry. It should be brought in by some agreement in writing, carried into the record, or by a bill of exceptions. Besides, the matter entered .on the record is not correctly stated by the court. He states in his findings that the counsel for the plaintiff admitted, or admits, that the items were correct. He does not admit that; he doesn’t admit anything of the kind; he admits that the items of the account are correct, except certain items which are specified in its journal entry as found by the court. But he don’t make any admissions whatever as to these special items. He does not admit that they are arithmetically correct. This journal entry expressly states that as to these transactions, and as to “the validity ©f the several contracts on which said contracts are alleged to have'been paid as margins — as to all of which excepted matters the parties are left to their proofs.” We think, therefore, as held by the Supreme Court in Fries v. Mack, 33 Ohio St. page 52, that the court had no warrant or authority for proceeding to inquire into the amount claimed to be due from the plaintiff to the defendants upon their cross-petition; that the only judgment that the defendants were entitled to in the action was a general judgment in their favor. For this reason the judgment of the court below must-be modified. Whether it should be modified by reversing the money judgment and merely leaving the balance to stand, or whether the judgment of the court should be entirely reversed,leaving the verdict to stand,and this court to proceed to render a judgment such as the court below should have rendered, is not a very material matter. We think that the judgment of the court dismissing the plaintiff’s petition should stand, and that the judgment finding an amount due and rendering judgment for that amount, should be reversed, or set aside.

Bailey & Bailey, Harris &■ Thurston, for plaintiff in error.

Brown- & Geddes, for defendants in error.


author: Laubie, J.

text:
    (Seventh Circuit—Mahoning Co., O., Circuit Court
    Oct. Term, 1894.
    Before Frazier, Woodbury and Laubie, JJ.
    THE PITTSBURGH & WESTERN RY. CO. v. ACKWORTH.

      Employer and employe — Liability for dangerous service—
    1. A servant, by his contract of service, assumes the ordinary and usual dangers of such business, as generally conducted, and those arising from defective apparatus or appliances of which he has, knowledge at the time he enters such service; but he does not assume, by his contract, dangers arising from defective apparatus or appliances subsequently furnished by the master, or which subsequently become defective.

      Same — Defective appliances — Liability—
    2. Ordinarily continuing to work with such defective appliances or ■ apparatus, with knowledge thereof, without complaint, and promise of the master to remedy the defect, is negligence per se; but if the defect bo of such a character that ordinary care in the performance of his'" duties by the servant, in view thereof, would be sufficient to protect himprom injury therefrom, or, if such defect was not so obviously or immediately dangerous but that prudent men would continue in such service, then such continuance would not constitute negligence per se, and the exigencies of the service, at the time of the injury, may excuse the servant for fa momentary forgetfulness of such defect — all of which would be for the jury to determine under proper instructions from the court, provided such facts were properly alleged in the petition.

      Same — Rules for use of appliances—
    3. If the master has made and furnished to the servant rules to govern him in the performance of his work, and if an observance of such rules, so far as time and occasion will reasonably permit, would make known a‘defect in such apparatus or appliances to the servant, he must be presumed to have known of and obeyed such rules and to have acquired a knowledge of such defect, and the buidm of proof is upon him to show either that he had no actual knowledge of the defect, or, a legal excuse for not knowing, or for using the appliances or apparatus with such knowledge. In this case the evidence did not rebut such presumption, nor was such excuse alleged or proved, and as the decedent, therefore, knowingly and voluntarily used the defective brake, the plaintiff could not recover.

      Contributory negligence — Proof—Presumption■—
    4. The rule that the burden of proof of contributory negligence is upon the defendant, unless the jury shall find that the testimony of the plaintiff raises a presumption of negligence on his part,does not apply when the only reasonable inference to be drawn from such testimony is one of negligence. In such case, it is the duty of the court to declare that the burden of proof is upon the plaintiff.
   Laubie, J.

The case of the Pittsburgh & Western Railway Company against Sarah Ackworth, is a- proceeding in error -to reverse a judgment rendered in favor of the defendant in error against the plaintiff in error, in the court below, in an action brought to recover damages for an injury to the husband of the defendant in error, resulting in his death, which occurred at New' Castle Junction yard in the state of Pennsylavania, under a statute of that state conferring a right of action upon a widow. In this large and voluminous record, very many exceptions on the part of the plaintiff in' error are pointed out to us, and claims made and elaborately argued as to their erroneous character.

We have carefully read all of this record, and have gone over all of the points of error claimed, and -we find no difficulty, save w’ith one, and with that one exception will I deal in this opinion, and that is as to the question of contributory negligence on the part of the decedent in causing or contributing to produce the injuries which resulted in. his death. This question involves a consideration of the basis of the action — the negligence of the defendant upon which it is claimed the plaintiff below was entitled to recover. The negligence claimed consisted in having in the train a car with a defective brake; that it had no nut upon the head of the brake-shaft to hold the wheel solid on to the shaft; that the wheel lay loosely upon the top of the shaft, and that it was in a dangerous and unfit condition for use, and was known or ought to have been known to the defendant that it w7as so. That, shortly, is the basis of the action — Ihe negligent act claimed on ihe part of the defendant, which it is urged would entitle the plaintiff to recover, if proved.

The second proposition that it is necessary to consider in disposing of this point is as to the duty of the decedent. He was acting in the dual capacity of conductor of a passenger train which ran from the Junction to New Castle, some three miles and back, and as a boss of a shifting gang in the yard, and the gang consisted of himself, an engineer, fireman and two brakemen, who run with him, and w'ere under liis orders, on the passenger train. Upon the occasion in question, it is evident he was acting in the capacity of a brakeman of this crew. Although the boss, he assisted in doing work, and used the brakes and performed other services in the yard in the shifting of cars, the same as if he had been a brakeman, and frequently went upon the cars for the purpose of setting the brakes. He was to perform these duties under the rules of his company, and one of these rules is especially involved in this inquiry, and needs to be examined. Rule 98 on the back of the time schedule No. 10, which was the schedule that was then in force, and of which, it was shown, he had possession of a copy, and'which it was his duty to know, reads as follows: “Sufficient time is allowed and may be taken by employes in all cases, to make required examination. Coupling by hand is positively forbidden, and all employes engaged in such work are required to provide themselves with a stick for that purpose. Brakes must be examined before attempting to use them, and those having occasion to use them must know their condition, and take no risk. All such cars must be reported to superintendent and dispatchers.” This rule had been in force fora long time, and it must be presumed that he had knowledge of it. His duty, therefore, is to be measured somewhat by the extent and application of this rule, because it was the use of a brake such as has been described that produced his death — he was on the car using the brake, and the wheel came off and threw him underneath the cars, and he was killed. While his duty must be measured with reference to the rules of the company, and especially of this rule No. 98, yet we do not mean to say that its letter must have been complied with. It could not be literally complied with in the full sense of the term, or of the words. A brakeman upon a moving train could not, nor would any company permit him, to stop the train and take time to carefully examine every brake upon it, and without doing so it would be utterly impossible for him to fulfill the letter of this rule. He must not only examine, but he must know its condition, not any particular part of the brake, but the brake as a whole, and a rule like this can not be enforced against an employe according to its letter; but there is a right of subordination to the rules of the company, which the company has the right to expect, and that is a reasonable compliance with the rules so far as the business of the company permits,.and so far as the company furnishes the opportuniy for examination. The brakeman undoubtedly would have a much better opportunity in the yard when merely switching cars, to examine brakes, than he would out on the road, and, so far as the circumstances of the case, and the occasion would permit, Ackworth was oliged to obey this rule. He was required to give reasonable attention to it and a reasonable compliance with its requirements, measured solely by the time and the occasion. Now, there is no dispute but what the nut was off, and had been off, as both parties claim, for a long time, and there is no dispute but what that caused decedent’s death, for he took hold of the brake to stop the car, and wrenching upon it the wheel came off, and he fell by theforce of his own action upon the track underneath the wheels and was killed. The presumption is that he did his duty, and that he knew of the defective character of this brake. This, therefore, naturally threw the burden of proof upon the plaintiff to show that he did not know of'the defect; or if he did, that he was not negligent in using the brake. The plaintiff alleged knowledge upon the part of the company of the defect, and that the decedent did not know it, and this was the only issue between the parties upon this question. On that issue the court charged the jury that if the decedent knew the condition of the brake and knowingly used it, he could not recover, following the case of the Coal and Car Co. v. Norman, in the 49 Ohio St., cited by plaintiff in error. That case is a peculiar one. The doctrine in that case has been declared by some of the courts that have followed it to be, that such defect — the defect in. machinery or having to work in an unduly dangerous or extra hazardous place — -was one of the risks which the servant assumed under his contract, and it has been wrongly placed upon that doctrine. They confound the distinction between contributory negligence and the risk which the employe assumes when he enters the master’s service by reason of his contract of service. By his contract of service he assumes only the ordinary and usual danger's of such employment. If the-master should run his business with an appliance that was fatally defective, for instance the servant, by his contract of employment wuold not take upon himself the risks incident to such character of appliance,unless he actually had knowledge of it at the time. It is not the ordinary dangers of the business as his master runs it that he assumes under his contract,but the ordinary and usual dangers and risks of such business, as generallyjconducted, and the risks of the defective condition of the implements and apparatus furnished by the employer for'his work of which he has knowledge. This extends, therefore, to the condition only of the appliance at the time he enters the service. Its subsequent defects- — defects occurring subsequently in the appliance — are not one of the risks which he assumes by virtue of his contract. .The use-of appliances,or apparatus, which subsequently to his entering the service have become defective, will not defeat his recovery on the ground that it was a risk "the servant assumed by his contract of service. The employer must look to some-other principle of law in a case like that to defeat recovery, and that principle is contributory negligence, and that is a question for the jury under all of the evidence in the case.

The syllabus, in Coal and Car Co. v. Norman, supra, is-as follows: “ In an action by a servant against his master for an-injury resulting from the negligence of the latter in furnishing appliances or in caring for the premises where the work is to be done, the, plaintiff must aver want of knowledge on his-part of thejdefects causing the injury; or that, having such knowledge, he informed the master, and continued in his employment upon a promise, express, or impled, to remedy the defects; an averment that the injury occurred without fault on.his part is not sufficient.” This applies equally to thejappliances of the business and to the place where the work is to be performed; but the decision is to be considered with reference to the facts as they appeared from the petition demurred to, to-wit: that if the plaintiff knew of the defect, he must have known that it would be dangerous to Rim, and one against which he could not protect himself by the exercise of ordinary care in the performance of his work. . In such®a case, continuing to work without objection would bar recovery, not because it was a risk assumed by the contract of service, but because, as appears in the opinion, he •would be guilty of contributory negligence. Let me illustrate by .'reference to Railroad v. Fizpatrick, 31 Ohio St. 479—the w'ell known turntable case — where the question came up as to the knowledge of the servant, who was working the turntable by a crank, of the danger. The turntable was adjacent to the wood-yard track,and when first constructed they were sufficiently far apart to allow the turning of an engine on the turntable and the passage of an engine upon the wood-yard track.- But the company made larger engines, 'and after a wdiile the great majority of the engines were so large that, wRen upon the turntable, the pilot would extend over and across the wood-yard track; that there was danger continually of collision between engines passing upon the wood-yard track and those turned upon the turntable, and sixty or more engines were turned daily on the turntable, and many more passed daily upon the wood-yard track. Fitzpatrick was working the crank on the turntable, and admitted that he had knowledge of this danger of collision, and that caused his injury. Now the court said in that case, whether the plaintiff was guilty of contributory negligence was a question to be left to the jury. Judge Gilmore, in delivering the opinion,said “he was not a skilled mechanic, and might not know the effect of two such forces coming together, and althouhg he knew all of the dangers of the collision occurring sixty times a day, yet he might not have known that it would have been dangerous to him, and it was a proper thing to go to the jury.'-’ Thus declaring that the servant must not only know of the defect, but that it may produce injury to him, that it may be dangerous to him, he must appreciate the danger— the question being whether he was guilty of contributory negligence, under all the circumstances of the case.

In Railway Company v. Murphy, 50 Ohio St., a track repairer was out with a gang upon the track, and was engaged stooping over the rails in fastening the rails with bolts, when a train came along,ran over him and injured him. All discovered the approach of the train but he, and the particular charge of negligence against the company was that it had not provided means for his reasonable safety in that it had not provided rules for the giving of signals of the approach of a train to its trackmen, either by whistle, bell or otherwise, and had not provided a watchman to guard the track repairers against danger under such circumstances, or warn them of the approach of danger. The servant had taken no care for himself. He had made no complaints to the company that track repairing was unusually dangerous by reason of the absence of such rules, or of such watchman, and yet, with all the knowledge he must be presumed to have had, in the absence of evidence to the contrary, of his position and its surrounding dánger, the court say the whole question is one of contributory negligence to be left under proper instructions to the jury. It would seem, therefore, that continuing in the service with a knowledge of the defect, or danger, upon the part of the servant, without complaint, is not always an absolute bar to recovery; and this court heretofore has had occasion to' express the opinion, that when the servant, after entering the service, acquires a knowledge of a defect in the apparatus, or appliances of the master, of such a character that ordinary care in the performance of his duties by the servant, in view thereof, would protect him from injury therefrom, or which was not so obviously and immediately dangerous, but that prudent men would continue in the service, then continuing in such service without complaint would not constitute neglience per sc: and that the exegencies of the service, at the time of the injury, might excuse him for a momentary forgetfulness of the defect, which would be for the jury to determine. See also Whar. on Neg., secs. 214, 218, 219. Bea. on Con. Neg., sec. 140 and notes on p. 373.

In this case, however; the allegations were that the defendant company knew of the defective condition of this brake, or ought to have known it. and that the decedent did not, and that he was injured without fault on his part. There was no admission that he did know, with a plea of matters of excuse for using it with that knowledge, and it would seem, therefore, that if the evidence was that he did have-knowledge, that would end the case, and the issue would be found against the plaintiff. If, however, the jury should find that he did not know, then what? Then the question would be: Was he negligent in not knowing it under the rules of the company? And if he was,then that would end the case. And again, if the jury should find that he was not negligent in not knowing the defect in the brake, then what? Then the question would be whether he at the time exercised ordinary care for his own safet}?.

Let us come now to the testimony in the case on the question of his contributory negligence under the is'sue as we find it. I have said that the presumption is that he inspected the brake; that he performed his duty under the rules of the-company, and knew its condition. Was it shown that he actually did not know its condition? The plaintiff below depended for proof of all the facts upon the testimony of one William Robertson; and he was the only witness produced by the plaintiff below, who saw or knew anything of the circumstances, how it happended, how it occurred. As introduced by the plaintiff below, his testimony was taken from a bill of exceptions of the case tried in 1892. There seems to have been an agreement between counsel that the testimony of non-resident witnesses, which had been taken in the former trial of the case, should be read to the jury as depositions of witnesses, and in this way a large part of the testi'mony went to the jury.

The plaintiff read this testimony of Robertson, as testified to by him in 1892, and he testified in substance that he was in the yard at the time of this occurrance, and that he saw Ackworth at the switch, throwing the switch, and that as cars came up those that were to be shifted were cut off; that he got on a car, took hold of the brake, attempted to use it, the wheel came off in his hands,'and he fell in front of the car, and was run over and killed. That in short was his testimony.

The defendant introduced testimony of the sa'me witness, Robertson, given at a later period of time, by the plaintiff at a trial in 1894, May term, 1894, for the purpose of contradicting him, and in that he makes such an exhibition of himself, in connection with his former testimony, that it is utterly impossible to see how a jury could place the slightest reliance upon his testimony. In this later examination he testified that he saw Ackworth about the switch, and saw him attempt to get on the car, to catch hold of the handhold, that he missed it and fell under the car, and was run over; that he saw him in front of the car on the trdck, that he saw him jump up to catch hold of the brake-wheel and he fell off and went down under the car; that while he saw him jump at tlje hand-hold, he didn’t catch hold of it, and he didn't get on the car, and that he didn’t catch hold of the hand-hold, but saw him jump at it,but he missed it and went under the ear. To excuse his contradictions on this important point, counsel for plaintiff below wanted to prove, as was stated, that at the time he gave his second testimony he .was intoxicated, but the court rejected it. and counsel before us, in argument, urged that the court ought to have permitted him to show that, at the second time when the witness was called, he was badly intoxicated, as an excuse for these contradictions. I cannot see how7 it would have benefited the plaintiff unless we discredit the old adage: In vino veritas. But, at all events, neither of his accounts of the accident was true. Robertson also testified that he was at that time in the service of the defendant company, running on a local freight from New Castle to Allegheny and back, and that he was down at the yard that Saturday afternoon because he had missed his train that morning,and that he wanted to get the train to go to Allegheny so as to return on the return trip which would not be until Monday, as his train didn’t run on Sunday; and he says he did go to Allegheny that night; and the man, Moore, whom plaintiff produced on the second trial, says also they went to Allegheny that night. Yet in the latter trial Robertson shears he did not go to Allegheny that night, staid in New Castle, and went the next afternoon; that he was at work for the Pittsburgh and Western on a local, and that the local left New Castle at 5:30. P. M., and that his trains were Nos. 41 and 41, but they could not be found on the schedule, and there was only one local, and that was No. 27, and it left at 5:30 in the morning. The other testimony in the case — all of which would have t.o be -fabricated if not true — showed that he was not in the employ of the railroad company at that time, the accident having occurred on the 6th of July, and that he was not in its employ until the 17th. The conductor of the local swears that he never worked, for him, that he was riming the local during the month up until the 27th of July, and produced his time book of that month, and the original is in the record, and it shows four or five names, but Robertson is not among the number; and they produced also the time card .showing when Robertson did work, and the number of days employed, and that he made $25,45; and they show his receipt for that amount at the end of the month, so that it is impossible to conceive how a jury could have placed any reliance whatever upon that mail's testimony.

All the other witnesses in the case testify that Ackworth was not at the switch, but was out on this car all the time standing by this brake; that Newell threw the switch, if I remember the name correctly; that Ackworth remained on the car, and did not get off that car until he fell off and was killed, and going up and coming back past the switch he remained on the car, standing upright alongside of that brake, and ill at he had absolutely used it once going up on the train, but when he undertook to use it again the wheel came off and lie went under the car. Look at it for a moment and consider it —the character of the defect — it was the nut off the top of the brake-shaft which came up in the center of the wheel — which was perhaps a foot in diameter — that he took hold of the wheel, wrenched around and it came off the brake. As he stood his head would be above the wheel, and naturally in taking hold of the wheel he would look at it, and right there between his hands was that defect visible. There can be no inference except that had he performed his duty to the extent that the time and circumstances would permit, by a mere glance of the eye, he would have detected the defect, so that the evidence supported the presumption that he knew of the defect and used the brake voluntarily with that knowledge. If he looked at the brake-wheel at all he could not have but seen it. We are unable to conceive how the jury could have found otherwise, unless the charge may have misled or coufused them as to the issue and as to the burden of proof. Part of it is as follows: 1 ‘ Upon the question of negligence upon the part of the defendant and as to that negligence being the proximate cause of the injury to Ackworth, and as to want of knowledge of the defect on the part of Ackworth, the burden of proof is upon the plaintiff, and this makes it incumbent upon her to produce a preponderance of the testimony in support of each of these propositions, and unless that preponderance is produced she is not entitled to a finding in her favor. Upon the question of contributory negligence or violation of the rule by Ackworth, the burden of proof is upon the defendant, and this makes it incumbent upon the defendant to produce a preponderance of the testimony that Ackworth did not act with ordinary care or wasi acting in violation of the rules upon .that occasion, and that this failure to so act or the violation of the -rules contributed to produce or cause his injuries, unless the testimony offered by the plaintiff in this case raises the presumption of contributory negligence or a violation of the rules on the part of Ackworth, in which event the burden of proof would then rest upon the plaintiff to rebut and remove this presumption and to produce a preponderance of the evidence that contributory negligence did not exist, and that the rules of the defendant were being observed by him at that time.”

Notwithstanding the evidence as I have dislosed it, notwithstanding the presumption was that he had obeyed the rules and knew of the defect, and notwithstanding the ground of recovery alleged in the petition was that the decedent did not know of the defect, which involved an admission of a violation or non-observance of the rules of the company in evidene in the case, the learned judge told the jury that upon the question of the contributory negligence, or violation of the rules, by Ackworth, the burden of proof was upon the defendant, unless the testimony of the plaintiff raised a .contrary presumption.

We agree with counsel that this was a mistake upon the part of the court, which had its effect upon the jury in bringing the verdict. The court was plainly attempting to follow the ordinary rule laid down in regard to the burden of proof upon contributory negligence as defined by the court of last resort. It is a peculiar rule and one which ought not to be extended, but strictly confined within the actual limits of its true application.

We admit, it seems a good deal as if the court, in turning over to the jury the question of the burden of proof, abdicates not only its powers, but its duties and its obligations toward the parties; that the court ought to be able to judge upon whom the burden of proof rests, and to determine for itself whether there was evidence raising the presumption of negligence, which would cast the burden of proof upon the plaintiff; that it is as capable of doing that as the jury; just as capable of doing that as it is to determine whether there is sufficient evidence of negligence to carry the case to the jury, or whether there is sufficient evidence of the loss of a paper to permit verbal evidence of its contents to go to the jury, and if it were an original question I should think it ought not to abdicate its duty in that regard in one case any more than the other. The rule is different, however, to the extent named, but it should not, and we think does not, apply when the only reasonable presumption arising from the plaintiff’s testimony is one of negligence. It is only in a doubtful case, that the question should be submitted to the jury.

It is clear that the evidence of the plaintiff did raise such presumption of negligence, and that the burden of proof was upon the plaintiff. In allowing the jury to determine that question, and in permitting the jury to say that there was no evidence in the case on the part of the plaintiff that raised a presumption of the decedent’s negligence, and that the burden of proof rested upon defendant, we think was misleading,and contributed to bring an unfortunate verdict, and one that is not sustained by the .evidence in the case, and the case must be reversed.

Jones & Anderson, for plaintiff.

G. F. Anri, and F. Jacobs, for defendant.