text:
    PROSECUTION FOR. ABETTING AND PROCURING PERJURY.
    Circuit Court of Cuyahoga County.
    Ulysses G. Walker v. State of Ohio.
    Decided, May 21, 1910.

      Criminal Law—Sufficiency of Indictment for Aiding, Abetting and Procuring Perjury—Particular Form of Words Not Necessary in Talcing Oath—Exaggeration in Argument to Jury..
    1. In an indictment for aiding, abetting and procuring another to commit perjury, the fact that the accused knew that the person whom he aided knew that he was committing perjury is sufficiently alleged by charging that the accused willfully and corruptly aided, abetted and procured the other in making, verifying and falsely swearing to a bank report, “then and there well knowing said report to be false and untrue, and thereby to commit willful and corrupt perjury in the manner and form as aforesaid.”
    2. One may be found guilty of aiding and abetting the commission of perjury, though the evidence does not show that he was personally present when the perjury was committed.
    3. No particular form of words is necessary to the taking of an oath if both the officer who administers it and the person taking it, understand that an oath is being administered.
    4. Picturesque and exaggerated language used by counsel for the state in addressing the jury in a criminal case does not necessarily require a reversal of a conviction.

      Norton T. Ilorr and Jay P. Pawley, for plaintiff in error.

      John A. Cline and Waller P. Meals, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The plaintiff in error was tried and convicted in the court of common pleas of the crime of perjury. The claim on the part of the state being that he aided, abetted and procured one William G-. Duncan to knowingly swear falsely in a certain affidavit which was made as to the truth of a certain report, made to the superintendent of banking of the state of Ohio, the said Walker being the president and the said Duncan the treasurer of a banking company known as “the South Cleveland Banking Company.” The statute defining perjury and providing for its punishment is Section 6897, Revised Statutes, and reads:

“Whoever either verbally or in writing, on oath lawfully administered, willfully and corruptly states a falsehood as to a material matter in a proceeding before a court, tribunal or officer created by law, or matter in relation to which an oath is authorized by law, is guilty of perjury and shall be imprisoned in the penitentiary not less than three years nor more than ten years. ’ ’

There is no statute making a separate crime of subornation of perjury, but Section 6804 of the Revised Statutes reads:

“AVhoever aids, abets or procures another to commit any offense may be prosecuted and punished as if he were the principal offender.”

So that if any offense is charged here against AYalker it is a charge of perjury, and results from his suborning Duncan to knowingly swear falsely.

The sufficiency of the indictment was challenged both by motion to quash and by demurrer, both of which were overruled and the validity of the indictment sustained.

It is here claimed that the court erred in sustaining the indictment, the claim being that in order to make the indictment good, as against one who procures another to commit perjury, it must appear from the indictment that the thing sworn to must have been false; that it must have been known to the party making the oath that it was false; that it must have been known to the party procuring the swearing to be done that it was false and it must be known to the party procuring the swearing to be done that the party making the oath knew that it was false. It is said that the indictment here, though it does charge that what was sworn to by Duncan was false and that Duncan knew it to be false, that Walker knew it to be false, yet it does not charge that Walker, knew that Duncan knew that it was false, the argument being that unless Walker knew that what he was inducing Duncan to do would be perjury on Duncan’s part, then there would be no guilt on the'part of Walker because Walker did not know that he was inducing Duncan to commit perjury, because there would be no perjury on the part of Duncan if he believed that what he swore to was true, and so if Walker supposed that Duncan supposed that what he said was true, then Walker, though he so induced Duncan to swear to something that was not true did not know that he was inducing Duncan to commit perjury, because he did not know that Duncan did not know it was not true, and our attention is called to the case of Jehial W. Stewart v. State of Ohio, 22 Ohio St., 477. The first proposition in the syllabus of that case reads:

“An essential element in the crime of subornation of perjury is the knowledge or belief on the part of the accused, not only that the witness will swear to what is untrue, but also that he will do so corruptly and knowingly.”

The second proposition reads:

“An indictment for subornation of perjury, setting forth in due form of law the crime of willful and corrupt perjury by the suborned witness, and then averring that the defendant feloniously, willfully and corruptly did persuade, procure and suborn the witness to commit ‘said perjury in manner and form aforesaid,’ sufficiently charges the defendant with knowledge that the witness would corruptly and knowingly swear to that which was false. ’ ’

In the opinion by Chief Justice Welch, it is said, speaking of the indictment in that case:

“It first charges in due form of law, the crime of willful and corrupt perjury by Saxton, including the averment that Saxton knew his testimony to be false and fictitious, and concluding with the averment that Saxton had ‘in manner aforesaid’ committed willful and corrupt perjury; and it then charges that Stewart ‘procured, persuaded and suborned the witness to commit said willful and corrupt perjury in manner and form aforesaid.’ The natural and primary import of this language is, to charge upon Stewart a knowledge of the guilt and corruption of the witness. The essence of perjury is the knowledge of the •witness that what he states is false. To persuade him to commit perjury is to persuade him to stifle his conscience, and to state under oath what he knows not to be true.. To persuade him to do less, that is, to make the false statement without the guilty knowledge, is not to persuade him to commit the crime. ’ ’

It would appear from this that the proposition is sound, that it must appear from the indictment that the accused knew that if the other party did that which he was persuaded to do by the accused, such other party would thereby commit perjury. But it is said that this indictment charges that the accused “procured, persuaded and suborned the witness to commit said willful and corrupt perjury in the manner and form aforesaid.” Tested by that rule it seems to us that this criticism of the indictment is not well taken. The indictment in the present case sufficiently charges Duncan with knowledge so as to constitute his swearing as perjury on his part. It distinctly charges knowledge on the part of Walker that what Duncan was to swear to was false, and then follows these words:

“And the said Ulyssess G. Walker then and there and -at all times aforesaid, and on the day and year aforesaid, prior thereto, and at the county -aforesaid, did feloniously, willfully, corruptly and unlawfully aid, abet and procure him, the said William G. Duncan in making, verifying and falsely swearing to said report, and the matters and things therein stated as aforesaid, then and there well knowing said report and the matters and things therein stated to be false and untrue, and thereby to commit willful and corrupt perjury in the manner and form as aforesaid. ’ ’

We think the allegation in this indictment that Walker knew that what Duncan would swear to was known by Duncan to be false is stated more distinctly than in the indictment considered in Stewart v. State, supra. The language here is that Walker feloniously, willfully, corruptly and unlawfully did aid, abet and procure Duncan, in making, verifying and falsely swearing to said report. That is, Walker feloniously procured Duncan to swear falsely and thereby to commit willful and corrupt perjury. Certainly, judged by the rule laid down in the Stewart ease, this knowledge on the part of Walker that Duncan knew that what he swore to was false, is sufficiently stated.

It is however urged that the facts upon which the averment rests that Walker aided, abetted and procured Duncan not being stated, the indictment in that regard is not sufficient. This objection is, as we think by the case of Stewart v. State, supra, completely answered, and is so answered by the second paragraph of the syllabus, already quoted.

It will be seen that in that case the averment that the defendant did “persuade, procure and suborn the witness to commit said perjury in manner and form as aforesaid,” was held to be sufficient as an indictment. It is true that in that case the question does not seem to have been raised as to whether the specific acts of the defendant, constituting the aiding, abetting and procuring, were necessary to be stated, but as the court held the indictment good and as-the charge was practically in the same words as in the indictment now being considered, we should regard it as exceedingly technical, indeed as against the authority of that case, to hold the indictment here bad by reason of the alleged defect now being considered.

Under our statute, Section 7215, which provides that, “No indictment shall be deemed invalid for any defect or imperfection which does not ■ tend to the prejudice of the substantial rights of the defendant upon the merits,” we think this indictment clearly sufficient.

Since by our present statute one who aids, abets or procures another to commit a crime is himself a principal offender and may be convicted of the principal offense upon the establishment to a proper degree of certainty that he did either aid, abet or procure another to commit the crime, we find that under the indictment under consideration the state would be permitted to introduce evidence to establish the aiding, abetting or procuring, and we do not find that one might not be found guilty of aiding and abetting the offense of perjury without being personally present when such perjury was committed.

In the case of Chidester v. State, 25 Ohio St., 435, the statute under consideration made the procuring of a crime to be committed a separate crime from the principal offense, and so differed from the present statute in that regard, and under the statute as it then was, it was held, that one under indictment for forgery could not be convicted of that offense without being per-' sonally present when the forgery was committed.. It by no means follows from this that if he had been indicted for procuring the defendant, or abetting the forging of the instrument, it would have been necessary that he be present. Indeed, the language of the court clearly indicates that such would not be the ease. This is said in this connection because the brief of counsel for plaintiff in error urges that under the evidence in this case, it being clearly made to appear that Walker was not personally present when the alleged perjury is claimed to have been committed, he could not be found guilty of aiding or abetting the perjury but only of procuring the perjury to be committed, if he could be convicted of anything, and so, it is urged, that under the facts of the case, the defendant was- not properly convicted under the evidence, because it does not appear that Duncan would not have done what he did without any suggestion or procurement on the part of Walker. And attention is called to the definition of the word “procure” and quotation is made from page 697 of the 22d American & English Encyclopedia of Law, 2d Edition, of these words:

“Subornation of perjury is procuring a person to commit perjury which he actually does in consequence of such procurement. ’ ’

Section 1197 of Bishop’s Criminal Law .is called to our attention, where it is said in the brief of counsel, this language is used, in speaking of perjury, that such perjury was committed “in consequence of the persuasion.” We have carefully examined the section in the 8th Edition of this work, published in 1892, and fail to find the language quoted. In support of the text several eases are cited, and we are not prepared to say that the proposition is not true and that one can only be convicted of procuring another to commit this crime when such other does commit it in consequence of such procurement. But further, we are not prepared to say that the jury might not, under the evidence in this case, have properly found that whatever was done by Duncan in the matter under consideration, was done in consequence of the procurement by Walker or the inducements held out to him by Walker.

On the 2d of December, 1908, Walker was president of a banking corporation known as the South Cleveland Banking Company. Duncan was the treasurer of the same corporation. Under the laws of the state, the officers of this corporation were required to make a written report, under oath, from time to time, to the superintendent of banks of the state. At the date last aforesaid a report was made out on printed forms furnished by the said superintendent upon which blanks were left to be filled out in writing. On what is known as the front page of that report, one of the things required to be reported was “overdraft.” The amount filled out as against this item by Walker was in figures $567.71. This was not a true statement of the condition of the bank as to “overdrafts,” unless more than $300,000 which was owing to the bank by the Werner Company of Akron, was properly treated as a loan and not as an overdraft. This was carried on the books of the company as an overdraft. It grew out of transactions between this bank and the Werner Company, involving more than a million dollars, which last named’amount was owing by the Werner Company to the banking company at the time this report was made out. The banking company at this time held bonds of the Werner Company to a large amount, which represented a part of this indebtedness or in any event which were held by the bank because of this indebtedness.

The claim is made on the part of Walker that the bank was not the owner of the bonds last spoken of, but held them only as security for the payment of this indebtedness, which has been mentioned in this opinion as more than $300,000, and that this sum was a loan to the Werner Company; that the bank did not own the bonds, and that therefore the bonds were not included as such in this report, but that this- amount was included in what was reported under the heading of “Loans and Discounts.” The evidence establishes that at one time the bank held the notes of the Werner Company for this amount; that it gave up these notes, endorsed them as canceled and paid and accepted these bonds, and we think from the evidence it is.perfectly clear that either these bonds were the property of the bank and should have been included as such, or they were held as security for an overdraft to this amount. Walker says that he did not report to the directors of the bank the true situation of this indebtedness because he feared to do it. All that is said by Walker about it in his testimony shows that both he and Duncan were purposely deceiving the directors of the bank with reference to this debt, and that it was intended to deceive the superintendent of banks, and from Walker’s testimony we think the jury were warranted, in finding that this indebtedness to the bank should have been reported as an overdraft. It was in fact such, and it was so carried on the books of the Werner Company. It was by Walker and Duncan intended that the directors should understand it to be other than what they knew it to be, and for this purpose a report was made out as it was, making this very serious false statement. After Duncan had made out the report as herein indicated, he signed his name to an affidavit, printed at the foot of the report, which reads:

“I, W. G. Duncan, Treas. of the South Cleveland Banking Company, do solemnly swear that the above statement is true, and that the schedules on the back hereof fully and correctly represent the matters therein to be covered to the best of my knowledge and belief.”

To this there follows the following:

“The State of Ohio, County of Cuyahoga. Sworn to and subscribed before me this 2nd day of Dee., 1908.
“G. W. Gill,
“Notary Public

The notarial seal of the notary is affixed.

On the back of this report blanks were filled ont by Walker, undertaking to give the situation of the bank as to loans and discounts. This was equally false in that it reported the amount of bonds of the Werner Company held by the bank as $10,000, omitting entirely the $300,000 worth of bonds which have been spoken of, and which were, as already stated, either the -property of the bank or héld ás security for the overdraft already mentioned. Walker says that this placed upon the back was put upon it by him after the portion written by Duncan was put on, and after the affidavit was signed by Duncan. He says also that he saw this was so signed by Duncan; that it was laid by Duncan on his desk, and that he expected him to swear to it.

It is urged that this, with all other evidence put together, fails to show that Walker procured Duncan to swear to this report. He directed Duncan to make the report, knowing that he was to swear to it. When he gave that direction it is perfectly clear that both he and Duncan understood that it was to be a false report in the particulars already pointed out. Duncan was an officer subordinate to Walker, and knew that if he followed the direction of Walker, as expresssed or necessarily implied, he must make out and swear to a false report. If it was false, .as we find it to be, Duncan knew that it was false; Walker knew that it was false; and Walker knew that Duncan knew exactly what the situation was, and even if the jury were to have found that Duncan did not make and subscribe this report because of the procurement of Walker, they surely would have been justified in finding that Walker aided and abetted in having it done—in having all done by Duncan that was done by him.

But it is said that the evidence is not sufficient to show that this report was sworn to by Duncan. Duncan says it was; Gill the notary says that -it was. The presumption is that it was, because the notary so certifies. It is true that on cross-examination neither Duncan nor Gill show that they remember exactly what was said, but they show, as we think, enough to warrant the jury in finding that it was sworn to. No particular form of words is necessary to the taking of an oath. Witnesses in open court who are sworn to testify in trials seldom say anything, but the clerk of the court administers to them an oaljh, to which afterwards on their part they are held to have assented, and if having gone through with this ceremony they wilfully testify to what is false, they have committed perjury, although no word was used by them in the taking of an oath.

After the argument of the case counsel for the defendant below made a large number of requests, which the court was asked to give in charge to the jury. The language introducing these requests reads:

“Thereupon the defendant requested the court to charge the following propositions separately and not as a series.”

Then follow thirty-seven propositions so requested to be charged. Among them is No. 34. It will be seen that by the language used in introducing these requests they were to be charged separately and not as a series. This did not require of the court to pick out parts of any one of these requests and give them to the jury, unless the court found that that entire request should be given. It simply called upon the court to say whether any one or more of these thirty-seven requests should be given as a whole. This thirty-fourth request included among other things, the following: “You must assume that Duncan, when he testified, did hope that by testifying as he did he would escape prosecution and conviction.” Immediately following that and as a part of the same request, is this language: “If you find that when Duncan appeared before Gill on December 2, 1908, he said to Gill, I want to swear to this statement, and that all that Gill said was, “Is this true, Will?” and that no other ceremony was performed, I charge you that that did not constitute the administration of a legal oath, and that you must return a verdict of not guilty.”

Now whatever may be said as to the last sentence read, the court was clearly justified in declining to give the thirty-fourth request, because of the language contained in the request as hereinbefore quoted, to-wit, “You must assume that- Duncan when he testified did hope that by testifying as he did he would escape prosecution and conviction.” There was no error in refusing to give this thirty-fourth request as a whole.

Attention is called to this language because it was especially-urged upon the court in argument. What the court said to the jury in reference to the administration of an oath sufficiently instructed the jury as to what it was necessary for the state to prove in that regard. And as to each of the other requests, so far as they state the law applicable to the case, they were properly charged in the instruction given. There was no error in the charge of the court, nor was there any error in refusing to give the several requests.

It is further urged that there was error on the part of the court in its ruling on the admission of evidence, in this:

“When Walker was upon the stand he was asked in cross-examination by counsel for the state, if the bank did not have about eight thousand depositors. This question was objected to, the objection overruled, and an exception taken on the part of Walker. Walker then answered: ‘There were between six and seven thousand as I remember.’ ”

We "find no error in this .ruling. It had developed in the evidence before this that the bank was insolvent; that it had on deposit two million dollars; that considerable more than half of this amount was loaned to the Werner Company; that the Werner Company was in the hands of a receiver, because of its insolvency, and that it, as a customer of the bank, had been permitted to overdraw to the amount of more than $350,000.-that of the overdrafts carried by the bank at the time this report was made out, other than the overdraft of the Werner Company, was about $576.73. The state had a right in the cross-examination of Walker to search his conduct in this matter and to have it appear to the jury that the treatment of the Werner Company, of which Walker was a salaried officer, was so stupendously different from its treatment of every other depositor, and to emphasize this, that there were thousands of depositors who, altogether, had been permitted to overdraw only to this trifling amount, while this one customer was permitted to overdraw the enormous amount which it had overdrawn.

Complaint is further made that the court erred in overruling the motion for a new trial because of the language used on the part of each of the counsel for the state in his argument to the jury. Among tbe things counsel for tbe state in argument said (speaking of Walker) is: -

“He is an American and entitled to your consideration; entitled to justice; entitled to no more because he sits on that side of the table; no more than if he were among the seven or eight thousand depositors who seem to sympathize in this prosecution with this side of the table; whose all has been swept away, we contend, by his misconduct.”

It is said that this language was calculated to inflame the prejudices of the jury without being based upon any legitimate evidence. We have already said that the evidence given by Walker, upon cross-examination, that there were between six and seven thousand depositors was legitimate. The counsel in the heat of the argument used the words seven or eight thousand instead of six or seven thousand, but it can not be supposed that this difference in the number of depositors could have had any effect upon the jury. Whatever was to be drawn from the number, and whether it was six thousand or eight thousand, was immaterial. But it is said, that there is no evidence that the “all” of these depositors had been swept away by the misconduct of Walker, and through the mismanagement of this bank. As has already been said, it was shown by the evidence that these depositors had put more than two millions of dollars into this bank, and that more than one-half of it had been loaned, in violation of law, to one concern, which was shown to be insolvent, and was no such exaggeration of facts as would justify the court in holding that the language used constituted misconduct on the part of counsel to say that the “all” of these depositors had been swept away. Suppose, instead, he had said, Walker is entitled to no consideration greater than the thousands of depositors whose means to the' amount of more than a million of dollars have been swept away, or whose means to the extent of more than a million of dollars have been loaned to an insolvent corporation, of which Walker was an officer; and this language would have been justified by the evidence.

Counsel for the state also said: “Every dollar of the money that he put into that company came out of the pockets of the depositors of the South Cleveland' Banking Company; not a dollar of his own money went into it.” We think, notwithstanding that which Walker says as to the amount that he contributed to the capital stock of the Werner Company, that when the counsel was speaking of the money which was owing by the Werner Company to the banking company, he may well be éxcused for using the language which he did.

Some of the language used by the assistant prosecutor is rather picturesque, but did not constitute misconduct. In speaking of some one other than Walker, probably of Mr. Werner, who was a witness, he said:

“As soon as you drag down Captain Wagner’s bank, the Akron Savings' Company, you had to seek, like a vampire for new blood and new victims, and you lit upon the bank of New-berg; that is the bank that your vampire’s tentacles clinched upon; that is the one that this blood sucking mouth ran into.”

As already said, this language is somewhat picturesque, but it did not constitute misconduct, under the evidence. A concern which had borrowed money from one bank to a large amount and that bank had gone to the wall, and then continuously for a period of years drawn from this South Cleveland Bank to the amount of more than a million dollars, without any adequate authority, might very well justify the characterization of it as a vampire which was sucking the blood from the bank.

Complaint is made that the prosecuting attorney used this language: “Aye! There are thousands of people walking the floor now because of what Walker did. If Walker had done right and made that report right,, that bank would still live and those thousands of depositors would have been saved.”

To properly understand this language, it must be considered with its context. The entire sentence used by the prosecutor was as follows: “He forgot about the other side when he told how Walker walked the floor at night in wee small hours, and worried about that bank,” and then follow the words complained of. There appears to have been no suggestion made when this language was used that counsel for the other side had not spoken of Walker’s walking the .floor at night because of the suffering he was undergoing on account of the affairs of the bank, and yet no evidence was introduced nor would it have been admissible to introduce it, to show any such walking or suffering on the part of Walker. But it having been .said by counsel for Walker, as we have a right to assume it was said, because no complaint was made of the statement of the prosecuting attorney that it was said, the latter might well be excused for using the language used by him to counter-act the feeling of sympathy for Walker which the language used by his counsel was calculated to affect.

Without selecting further language used by counsel in the argument it must suffice to say, that after reading the arguments of both of the attorneys who represented the state, we find no serious misconduct; certainly no misconduct that would justify a reversal of the case, and painful as the duty is to contribute in any degree to the imprisonment of a fellow-citizen and especially of one who has had the respect of the community in which he lives, we feel constrained to perform that painful duty as the judge of the court below and the jury.below felt called upon under their oaths to perform it, and the judgment of conviction is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    LIEN FOR WORK MADE NECESSARY BY MISTAKE OF ARCHITECT.
    Circuit Court of Cuyahoga County.
    Joseph Gross v. Frank Lukas.
    Decided, June 7, 1910.

      Mechanic’s Lien—Extra Work Ordered by Architect.

    Where extra work on a house, made necessary by a mistake of the architect, is ordered by him under an arrangement with the owner that the architect would pay for it, the contractor who does the extra work may have a lien therefor upon the interest of the owner in the premises, notwithstanding he has knowledge of the arrangement between the architect and the owner that the former would pay the bill.

      Hidy, Klein ¡c& Harris, for plaintiff in error.

      Benjamin Parmely, Jr., contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Suit was brought by Lukas against Gross upon an attested account and to foreclose a mechanic’s lien. The facts are that Gross engaged a contractor to build a house for him; the work of building said house was to be under the supervision of an architect named. By error on the part of the architect a mistake was made in building a bay window on the side of the house which brought it so near to the adjoining lot line as to be obnoxious to the building code of -the city of Cleveland, in which city this building was being erected. The attention of the architect, the builder and the owner being called to this by the city authorities, the architect agreed at his own expense to remove this bay window, and build one at another place on the house, which would not be in violation of the building code. This change was made, but unhappily the architect did not pay for it. The contractor was put to the expense of this change, .and for the labor and material upon it he made out an account and perfected a lien upon the premises, if he was entitled to any lien.

The claim made here is that Gross the owner was under no obligation to pay the contractor; that he (the contractor) was bound to look to the architect. It is urged first on behalf of the plaintiff in error that the allegation of the petition that the work was done and the material furnished at the request of the agent and architect of the owner does not make such an averment such as entitled the plaintiff to take out a lien, the language of the statute being that such lien can be taken out when the work or material are furnished “by virtue of a contract, express or implied, with the owner, or the authorized agent .of the owner.” The petition here alleges that Harry Cohen was the agent and architect for the owner and seems to us clearly to bring the case within the statute and makes the petition good. The allegation being that the work was done and material furnished “at the request of the agent” is a sufficient allegation that through this agent the owner made an implied promise to pay for this work and material. The arrangement between the owner and the architect that the architect would pay for the work was not binding upon the contractor, even though he knew of that arrangement. He had a right, as we think, to do this work, and furnish this material for the alteration in this house, by the direction of the architect, with the implied promise on the part of the owner that he would pay for it, even though he (the contractor) knew that this extra expense had been caused by the negligence of the architect and that, he had- agreed to' pay for it.

We think that the result reached in the court of common pleas is right, and the judgment of the court is affirmed.


text:
    CORPORATION BOUND BY CONTRACT MADE BY SECRETARY.
    Circuit Court of Cuyahoga County.
    The Grabler Manufacturing Co. v. T. J. Leahy.

    Decided, June 7, 1910.

      Corporations—Contracts—Knowledge and Approval of President.

    Where a by-law of a corporation provides that its contracts can be made only by its president, a contract made by its secretary, of which the president had knowledge and approved, is binding upon the corporation.

      Weed, Miller Bothenberg, for plaintiff in error.

      Tanney <& Barber, contra.
    Marvin, J.; Winci-i, J., and Henry, J., concur.

       Affirmed without opinion, Grabler Manufacturing Co. v. Leahy, 85 Ohio State, 442.

   Leahy, brought suit against the Grabler Manufacturing Company to recover for money which he claimed to be due upon a contract entered into between himself and the company. The whole question involved here is whether there was a contract between the parties. A writing was made out which, if -it is a contract binding upon the company, entitled the plaintiff below to the recovery which he had. This writing, which is in the form of a contract, is signed with the name of ‘ ‘ The Grabler Manufacturing Company, William S. Bayer, Sec.,”

It is- conceded that Bayer was the secretary of the company at the date of this writing, and that his name appearing upon the writing, as above stated, was written by him. It is conceded that the secretary was not authorized by the' board of directors of the corporation to make this contract, and that a by-law of the board provides that contracts can be made only by the president of the board. But the defendant in error says that though the secretary was not authorized on behalf of the company to bind it by this- contract, its conduct in relation to the writing after it was executed was a ratification on the part of the corporation of the contract.

In its charge to the jury the court told them that the secretary had no authority to make this contract, but, he said:

' “It is admitted, gentlemen of the jury, in the case, that the president of the defendant corporation, Mr. Rosenfeld, had the power and the authority to make the contract or make such a contract as was made in this case, and the only issue here is whether or not he did make it. If he approved of a contract made by the secretary of that corporation, then that act of approval on his part would find it. No claim is made here that Mr. Rosenfeld, as president, signed the'corporate name of the company to this contract, but the claim is made here that, having the power to approve of the contract, the evidence shows that his contract and acts were such as to warrant the belief that he did approve, that he did know of a contract which had been signed by the secretary and that, as a matter of fact, he did approve it.”

Certain propositions were asked by the defendant below to be given to the jury. These were not given except in so far as they are given in the general charge. Without stopping to read them, we think the propositions were sufficiently well covered by the charge as given. The only serious doubt that we have in the matter is' whether the court was sufficiently specific in instructing the jury that to make the conduct of the president a ratification of the contract it must be shown that the president at the time of such ratification, had knowledge of the contract. But on the whole we are of opinion that the language used,, which has already been quoted, would be understood by the jury to require a knowledge on the part of the president, before his conduct in relation to the contract could constitute a ratification, and so finding we reach the conclusion that there is no error apparent on the record and the judgment of the court of common pleas is affirmed.


text:
    LIABILITY OF OWNER OF TEAM CAUSING DEATH OF CHILD.
    Circuit Court of Cuyahoga County.
    William Becker v. Jennie Howanyecz, Administratrix of the Estate of Bernard Howanyecz, Deceased.
    Decided, June 28, 1910.

      Wrongful Death—Driver of Team Agent of Oioner—Infant—Excessive Verdict.

    1., In an action against -the owner of a wagon for death from wrongful act occurring through the negligence of a driver of the wagon in running over an infant playing in the street, the fact that the driver was in charge of and driving the team attached to the wagon sufficiently established his agency so as to charge the owner thereof with liability.
    2. A verdict of $800 for the death of an infant two years old will not be set aside as excessive, even though there was no evidence introduced as to the probable length of life of the infant or as to what it would probably have contributed to the support of the beneficiaries of the judgment, if it had lived.

      lligley, Maurer Dautcl and P. L. A. Lieghley, for plaintiff in error.

      Joseph L. Stem, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The parties here stand in the reverse order to that in which they stood in the action in the court of common pleas. The terms plaintiff and defendant as used in this opinion will refer to the parties as they stood in the -original action.

The plaintiff is the administrator of the estate of a deceased infant of about two years- of age. The defendant is the owner of several large wagons, with teams, used for'moving furniture and the like.

On the Í7th day -of October, 1907, the child whose estate is being administered upon by the plaintiff, was killed on West 19th street in the city of Cleveland. The claim on the part of the plaintiff is that the child ran out into the street, got in front of a team of the defendant, driven along said street in connection with one of the large moving wagons, and was knocked down by one of the defendant ’& horses in said team, and stepped upon by one of the defendant’s horses and killed; that the driver of the "team was the agent of the defendant, and that he was negligent in that he did not keep a lookout in front of his team to see what might get in front of it, and this on a street where a good many children were accustomed to play. That the child was killed either by one of the horses in the team or by the wagon running over it, is not denied.

The evidence discloses that the team was being driven at a slow trot or jog. The driver himself testifies that some dogs on the ground were barking at a dog in the wagon of the defendant. The testimony of Mary Moran is that she being at a house adjoining the one in which the child lived, saw the child go out into the street; saw the feet of one of the horses strike the child; and saw the child fall and the horse step upon the child’s head. The driver of the team did not notice the child and drove on, but immediately following him was another team belonging to the defendant, the driver of which saw this accident. He stopped his team, picked up the dead child and delivered it to its mother, who had rushed out hearing the screams of Miss Moran, who testifies to having seen the accident. This driver of the second team says that the child ran under the wagon of the first team and not in front of the horses. Miss' Moran testifies that the driver of the first team was striking his whip at the dogs which were barking on the ground, and also was not looking in such wise as to see what was in front of his team. This the driver of the first team denies. The driver of the second team does not know whether the driver of the first team was looking in such wise as to see what was in front of his horses or not, but does' know he was giving some attention at least' to the dog in the wagon. The testimony .of Miss Moran directly conflicts with the testimony of the driver of the front or first team, but we find nothing improbable in her testimony, and are not surprised that the jury should have believed her testimony to be true. The jury was properly instructed as to what would constitute actionable negligence, and if they believed Miss Moran, as they might well do, they properly found that there was negligence on the part of this driver, who should have been looking out when his team was being driven along a street in a populous city, where children play in the street, to see what was in front of his team. He says he was. She says he was not. The jury believed her.

The brief of the. defendant urges that the driver of the team which killed the child, either by being trodden upon by one of the horses, or by being crushed by the wagon, is not shown to be the agent of the defendant. It is shown by his testimony and by that of the other driver, that he was in charge of and driving the team of the defendant and this sufficiently establishes his agency, and so far for his negligence in the performance of his duty as driver of that team is concerned, the defendant would be liable. The result in the court below was a verdict for $800 in favor of the plaintiff. No evidence was introduced as to the health of this child, or circumstances of the family of the child, except that the child had a mother and a young brother and sister. It is said on the part of the defendant that the’ damages, if any were to be recovered, were excessive, and that, indeed, without evidence as to the probable length of life of the child, and the probable aid that it would be to the family, nothing more than nominal damages should have been recovered in any event, and that surely the verdict for $800 is excessive.

In the ease of Russel v. Sunbury, 37 Ohio St., 372, the court on page 376 in the opinion uses this language:

“The law assumes that there is such a pecuniary loss to the widow and next of kin, and awards to them damages therefor. ’ ’

In the ease of Transit Company v. Dagenbach, 11 Ohio Circuit Decisions, 308, a recovery for _ $1,000 was sustained for the death of a boy five years of age, although no evidence was permitted to go to the jury as to what the boy might probably have been able to earn in aiding his father in his cigar factory. At page 310 of the opinion, Judge Laubie, speaking for the court, says that the father was a cigar maker and offered to show that he expected to use the boy to aid him in his work as such. This evidence was excluded, and though it might properly have been admitted, still in the absence of any evidence, as already stated, the court permitted the judgment to stand. The concluding paragraph of the opinion reads:

“While we might have been better satisfied with a less verdict, we are not prepared to say that it was a verdict that was rendered under prejudice or passion, or that it was clearly excessive within the meaning of the law, which allows the party to take advantage of such a question. We can not say that this verdict was manifestly wrong, and on the whole the case will have to be affirmed. ’ ’

This judgment was affirmed, without report, by the Supreme Court. See 67 Ohio St., 612.

In the case of Ellis v. Twiggs, decided by this court on the 13th of January, 1910, which was a suit for the wrongful death of a wife, Judge Henry said, speaking for the court:

“As to the measure of damages it is claimed that nothing is shown in the evidence regarding any actual pecuniary damages sustained by any of the next of kin, the husband and children of the deceased. We think it is unnecessary to show anything more than the fact of wifehood and motherhood to authorize substantial as distinguished from nominal damages.”

See, also, Railway Co. v. Murphy, 50 Ohio St., 135.

This was an action for wrongful death and in that case it was urged that nothing was shown affirmatively as to the pecuniary loss to the beneficiaries. The court, however, sustained a verdict for the plaintiff.

We reach the conclusion that the court did not err in overruling the motion for a new trial on.the ground that the verdict was not sustained by sufficient evidence, nor on the ground that the verdict was excessive. It is said, and properly too, that juries are not permitted to “guess” what the damages in this or in any other case will be, and this is correct, if the word “guess” is construed to mean “to reach a conclusion without any basis for it.” But the word may be used in such sense as to be misleading, because in all cases where a recovery is had for wrongful death, the damages are altogether uncertain. It can never be known how long the deceased would have lived but for the accident, nor what he or she would have contributed to the support of his or her family or next of kin. It can only be determined on probabilities.

The language quoted from the opinion of - Judge Laubie in Transit Co. v. Dagenbach, supra, expresses our views in reference to this case, and the judgment is affirmed.


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    FRAUD IN THE SALE OF REAL ESTATE.
    Circuit Court of Cuyahoga County.
    W. Scott Rader v. Mary Basch.
    Decided, June 28, 1910.

      Charge as to Proof of Admitted, :Fact—Action for Fraud Against Agent —Claim Against Principal Not Paid—Note Enforceable Though Mortgage Not.

    1. It is not error to refuse to charge that the plaintiff can not recover unless she prove a fact which is admitted in the answer.
    2. One who has been defrauded by the misrepresentations of an agent of an owner of property sold to her as to the incumbrances thereon, may maintain her action against such agent for the fraud, notwithstanding she has proved up her claim against the principal upon such principal’s adjudication in bankruptcy, but has realized nothing from the bankrupt’s estate.
    3. One who by fraud has been induced to give a nóte and'mortgage on-her property to an innocent third person, may recover from the person who so fraudulently induced her to give the note and mortgage, the amount thereof, notwithstanding the mortgage securing the note is defectively executed and unenforceably, she being required, however, to pay the note.

      Carl Thompson and Frank C. Scott, for plaintiff in error.

      F. F. Klingman, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The relation of the parties to each other here is the reverse of their relation in the court of common pleas. The terms plaintiff and defendant as used in this opinion, refer to the parties as they stood in the original case.

Plaintiff brought her action in the court of common pleas seeking to recover from the defendant the sum of $1,800 for damages which she claimed to have sustained by reason of the breach of a contract entered into between herself and the defendant on the 24th of April, 1895. She prayed to recover a judgment for $1,800 and interest. The jury returned a verdict in favor of the plaintiff for $2,268.

A motion for a new trial was made and the court, as a condi'tion for overruling the motion, required that the plaintiff remit from such verdict the sum of $490. This the plaintiff did, and the judgment was thereupon entered for the amount of such verdict, less said $490, to-wit, the sum'of $3,778.

The facts are these:

The defendant was acting as the agent of one J. W. Hamby, who was a dealer in real estate in this city. He agreed with the plaintiff to sell her a certain piece of real, estate in the village of Lakewood in Cuyahoga county, Ohio, for the sum of $2,750, and to give her a free and unincumbered title to said property. The defendant disclosed the fact to the plaintiff that he was the agent of Hamby and she dealt with him with that understanding. The price of $2,750 was made up by her paying to him $1,150 in cash, or rather in a certified check, which was received as cash, and giving a note for $1,600 secured by mortgage upon the property. This note and mortgage were turned over by Hamby to one Shepherd, who furnished the $1,600. The mortgage was defective in that it was not acknowledged before any officer, and there was but one subscribing witness. The note, however, was valid. As a matter of fact, at the time the deed from Hamby was delivered to the plaintiff by the defendant, there was a mortgage upon the property for $1,800 owned by the Union Savings & Loan Co. As already stated, the title which the defendant agreed to give to the plaintiff was to be free and unincumbered. Some two years elapsed after the transaction already named before the plaintiff discovered that this mortgage of $1,800 jwas outstanding on the property. Meanwhile she had paid some $800 to Shepherd on the $1,600 note, and in the interim Hamby had disappeared, but he had reduced the mortgage for $1,800 as is said by the defendant in his answer, to about $1,650, so that the real incumbrance on the property was the last named amount when the deed was delivered to the plaintiff. This sum, with the interest upon it, making an aggregate of some $1,662, the plaintiff paid in order to relieve her property from the encumbrance wrongfully left iipon it by Hamby. In order to do this, she was obliged to borrow about $1,600, $1,200 of which she borrowed of Shepherd, the man who had furnished the $1,600 at the time of the purchase, and whose note had been reduced at this time to about $800. To accomplish this, the original $1,600 defective mortgage was canceled and the $800 remaining unpaid upon the original loan from Shepherd was merged with the $3,200 which Shepherd now furnished, and the plaintiff gave her note and mortgage to Shepherd for $2,000, borrowing from a relative something like $400, which last named sum, together with the $1,200 new money obtained from Shepherd and some little money which the plaintiff had, was sufficient and was used to pay off the balance still due on the Union Savings & Loan Company’s mortgage. The damage, therefore, which the defendant suffered at the hands of Hamby, and for which the defendant is- liable, if he is liable at all, is this $1,662, which she was required to pay to relieve the property from the last named' mortgage.

It is urged as against this that since the original mortgage given to Shepherd was invalid for want of .acknowledgment and for want of proper witnesses, she did not suffer this entire-amount, because, it is said, her mortgage to Shepherd being invalid she need not have paid that sum to him. This ignores entirely the fact that she got $1,600 from Shepherd for which she gave her note, and which, because she gave her note, she was bound to pay whether she gave any mortgage for it or not. It is not to be presumed that the plaintiff could by some dishonest means have defeated Shepherd from collecting the $1,600 which he had furnished the plaintiff for the purchase of this property, and for which s-he had given her note, -and half of which she had paid before she discovered the fraud. And what is here said disposes of one of the grounds of error claimed in the refusal of the court to charge as to the invalidity of this original Shepherd mortgage. So that the whole question is as to whether the defendant was responsible for this defect in title, and this depends upon a question of fact whether he, at the time he delivered the deed, told the plaintiff that the property was then free and clear of encumbrance. lie says he did not, but that he assured_ her that the $1,800 mortgage would be at once discharged' and canceled, and that he made this assurance upon the assurance of Hamby that the $1,600 which was to come from Shepherd and a sufficient part of the $1,150 paid in cash, would be used for that purpose. Hamby failed to do this.

The plaintiff, her husband and daughter, all testify that when the deed was delivered by the defendant to the plaintiff he stated that, to use his own terms, this Union Savings & Loan Company mortgage was “raised and canceled.” And these witnesses also testify that he then produced an abstract of title on which this mortgage was shown, and shown to be canceled, using the language, “You asked me for an abstract for 60 years, here is one for a hundred years; what more do you want ? ’ ’

That the abstract shown had been in the possession of the Union Savings & Loan Co. is certain; that this abstract was taken from such company by Hamby is also certain. This obstract has disappeared; nobody is able to find it or produce it; it was not returned to the Union Savings & Loan Company. Hamby may have forged a cancellation upon it. The defendant testifies, however, that when this abstract was shown to the plaintiff it did not show a" cancellation of this last named mortgage, and as has already been said, he denied that he made the statement that it had been discharged, and that he knew at the time the deed was delivered that the loan company’s mortgage was still outstanding, but he expected it would be at once discharged by Hamby, and that he stated those facts to the plaintiff.

If the jury believed him the verdict should have been for the defendant. Manifestly the jury did not believe him, but believed the plaintiff and her witnesses, and probably made the excuse for the defendant that when he made the statement that this mortgage had been “raised and canceled” he believed that no harm could come from it, because he expected it would be at once done. Yet giving this excuse, it does not relieve him from liability in this action. lie was liable if he made the misrepresentation which the plaintiff and her witnesses say he did make, knowing that it was not true.

The testimony shows that the bargaining for this property was conducted by the plaintiff and her husband; that the deed was first made out to the husband, but at his direction a new deed was made out to the wife. The husband testifies that he paid the money to the loan company for the cancellation of its mortgage, and, it is urged, that this being true the plaintiff can not recover in this action. The evidence, however, shows that the money to the extent of $1,200 was raised by mortgage upon this very property, and that the $400 was borrowed from a sister of the plaintiff. The fact that the money was actually handed over by the husband does not take away the right of the plaintiff to recover, when the mutual interest- of the husband and wife in this property, and the way in which it was purchased, are considered. This payment was not a voluntary payment on the part of the husband in such sense as it would be if some outsider, .who had no interest in the property, had made the payment.

The defendant requested the court to charge, before argument, among other things, the following;

' “Before there can be any recovery in this ease, the plaintiff must prove that the amount she paid to the Union Savings & Loan Company, if she paid anything whatever to it to satisfy its mortgage on her property, was actually due and owing on such mortgage, and in the absence of such proof, your verdict must be for the defendant in this ease. ’ ’

This was refused, and it was properly refused under the pleadings in the ease, for the answer admits that there was such a mortgage to the amount of $1,800, and that payments had been made upon it, reducing it to $1,650. With that answer on file by the defendant it would have been clearly erroneous for the court to charge as requested.

The court was also asked to charge that “the plaintiff, if she sustained any loss by reason of the mortgage to the Union Savings & Loan Company on the property purchased by her, might' recover such loss, from J. W. TIamby, who delivered his deed to her to such property, warranting the title free of incumbrance. If you find, therefore, that she has elected to rely on such warranty and to look to J. W. TIamby or his estate for her loss, she can not recover such loss from defendant in this case.”

The only possible ground on which any claim could be made that this charge should go to the jury is the evidence that Hamby, went into bankruptcy and that the plaintiff proved up her claim in the bankruptcy proceeding, and got nothing from it. Clearly it would have been erroneous to have given this charge. The plaintiff might well prove up her claim against Hamby and get all she could from his estate, and hold the defendant if she could hold him at all, for the balance. She did prove up her claim against TIamby. She got nothing. This certainly did not relieve the defendant.

A request was made that the court charge that if the mortgage to Shepherd was not acknowledged before a notary public or some othes officer authorized by law to take acknowledgments, and that if Mary Basch never did acknowledge the mortgage before a notary who certified to such acknowledgment that such mortgage was null and void. This request was properly refused, because as has already been said-in this opinion, the validity of this mortgage to Shepherd was a matter of indifference so far as the liability of this defendant is concerned. The plaintiff raised the $1,600 and it was paid to Hamby. She gave her note which she was bound to pay. It was a matter of indifference to Hamby or the defendant, so far as their liability to the plaintiff is concerned, whether the security which she gave for the payment of such note was valid or invalid.

This disposes of the requests to charge-, and they have been treated here as though they were requests properly proffered before argument, although the language of the bill does not show that they were proffered in the manner pointed out by the statute, the language of the bill being: “Whereupon counsel for the defendant requested the court give the following charges to the jury before argument,” whereas the statute provides that they shall be presented in writing. However, as already stated, no part of the finding of this court is based upon this failure to properly request charges before argument.

The result is that an examination of the entire record fails to show any error for which the judgment should be reversed and it is therefore affirmed.


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    DEFECT IN BOWLING ALLEY CAUSES INJURY TO PLAYER.
    Circuit Court of Cuyahoga County.
    The Humphrey Company v. Frederick Ohlson.
    Decided, June 28, 1910.

      Negligence—Defect in Bowling Alley—Duty of Proprietor to Inspect.

    The proprietor of a howling alley impliedly warrants that it is safe for the purpose intended, and is therefore under' a continuing duty of inspection to see that it is safe, and if he neglects this duty the question of Ins knowledge or ignorance of a defect which renders it unsafe is immaterial.

      Smith, Taft c§ Arier, for plaintiff.

      Fred. Best erg, contra.
    Marvin/J.; Winch, J., and Henry, J., concur.
   The relation of the parties to each'other here is the reverse of their relation in the court of common pleas. The terms plaintiff and defendant, as used in this opinion, refer to the parties as they stood in the original action.

The facts are that the defendant is a corporation conducting a place of amusement near the city of Cleveland, known as Euclid Beach Park; that the diversions offered to patrons thereof is that of bowling on a ten pin alley; that on the evening of September 16,1907, the plaintiff, with his wife and other friends, were at said Euclid Beach Park and having paid for the privilege of doing so, were engaged in bowling at this alley; that when the plaintiff ran forward with a ball to bowl, the heel of his shoe caught on a nail; he was thrown down and his arm broken. His suit was brought to recover damages for this injury. A verdict for $500 was rendered in his favor and judgment was entered upon that verdict, to reverse which judgment the present proceeding is prosecuted.

It is urged that there was error to the prejudice of the defendant in the trial for which this judgment should be reversed.

First, it is urged that the court erred as shown on page: 130 of the bill of exceptions, in excluding evidence offered by plaintiff in error.

D. S. Humphrey, the president of the defendant corporation, was upon the stand and was asked this question:

“Q. Can you tell us, Mr. Humphrey, how many square feet of floor space there are at Euclid Beach Park ? ’ ’

An objection to this on the part of the plaintiff was sustained by the court. The answer would have been “I can.”

Then this question was asked of the witness:

■“Q. Will you state to the court and the jury how many square feet of floor space over which people walk, you' have at Euclid Beach Park?”

Objection to this, made by the plaintiff, was sustained by the court. The answer would have been, “four hundred thousand square feet.”

The only possible bearing that these answers could have had, or could be claimed to have had, upon the issues in this case, would be upon the ground that because of their immense amount of floor space which the defendant had for the use of its patrons, less care would be required from it with respect to any one particular part of such floor space. This seems to us to be entirely untenable. A certain degree of care was required oil the part of the defendant at its park, and that same degree of care was required at each particular part of the park to which its patrons were invited, and for which they paid, whether the park was large, or small, or whether the floor space was great or limited. There was no error in this ruling of the court.

The only other claim of error in this ruling by the court is, that under the evidence the jury should have returned a verdict for the defendant, and that having returned a verdict the other way, the court should,- on motion for a new trial, have sustained such motion; there was a motion for a new trial on this ground.

It is urged that what is properly called the “runway,” being the floor space over which the bowlers ntn before delivering the ball, was floored exactly as the alley itself was floored; that indeed it was but a continuation of the floor of the alley; that this was of hard polished planking, set on edge and fastened together; that the sides of the several planks constituting this flooring were bevelled in such wise that' the nails holding them together were driven in at the sides of said planks and would not project above the surface. The testimony of the plaintiff is that he was making the run on this runway, and just as he delivered the ball his foot caught and he was thrown. It is said that just back of this runway was an ordinary floor, not designed for patrons of the alley to run upon to get the momentum with which the ball was to be thrown, and that such running was to be done on the runway proper, and that it must be that the nail, on which the foot of the plaintiff caught, projected from this part of the floor, not designed as a runway and not laid for the purpose of having the patrons run upon it to get the momentum necessary before throwing the ball, and that the plaintiff must have been negligent in running upon a part of the floor not designed for the purpose. The plaintiff says that his way of delivering the ball was to take two running steps and then glide his foot a little way and then deliver the ball, and it was while thus gliding that his shoe caught upon the nail; but he says that the nail was within about four feet of what is called the foul line, which is the line beyond which the bowler must not go in delivering the ball. This is the dividing line between the runway and the alley way proper. The runway was fourteen or fifteen feet in length, and if the plaintiff is right as to the distance of the nail from the foul line, it must have been in the runway.

When the plaintiff fell he says that half his body, or more than that was lying on what is called the gutter, which, as shown by the drawing produced by the defendant, extends alongside of the alley proper and terminates at the foul line, so that there is no gutter by the side of the runway, and if the plaintiff is right about this, he is probably right as to the place where his foot caught, although he is uncertain as to some of the distances mentioned by him.

Notwithstanding the less likelihood of a nail working np from planks put in as those were which formed the runway and the alley (the nails being driven in at the sides), than from the planks which formed the floor just before the runway and alley was reached, we think it by no means impossible or even improbable that a nail may have worked up, and if it had so worked up as to project above the surface of this runway, a proper inspection of this runway would have disclosed that fact to the defendant. We think from the evidence that the jury might well have found that this' nail, though when the construction was made, it was driven below the surface of the runway, had worked up and that it had continued to work up without having been again driven back into place, and that this working up must have continued for such a length of time that the defendant by the exercise of proper care would have known of it. It was the business of the defendant to use all reasonable means to make this place of amusement safe. It is the duty on the part of the proprietor of resorts like that of the defendant to use reasonable care in the conduct of such places, as pointed out in Yol. 1, Thompson on Negligence, Section 996, in which this language is used:

“Doubtless the true theory is that such persons assume the obligation of exercising reasonable- care, and that what will be reasonable care will be a degree of care proportioned to the danger incurred, and to the number of persons who will be subjected to that danger. A good expression of the rule of liability, applicable in such cases, is found in an English case to the effect that the proprietor of such a structure is.not a warrantor or insurer that it is absolutely safe; but that he impliedly warrants that it is safe for the purpose intended, save only as to those defects which are unseen, unknown and undiscoverable, not only unknown to himself, but undiscoverable by the exercise of any reasonable skill and diligence, or by any ordinary and reasonable means of inquiry and examination. Such being the nature of the obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the protection of those whom he invites to come into it; and that if he neglects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defect which renders it unsafe is immaterial.”

To tlie same effect is the ease of Currier v. Music Rail Association, 135 Mass., 414, the syllabus of which reads:

‘1 The proprietor of a' hall to which the public is invited is bound to use ordinary care and diligence to put and keep the hall in a reasonably safe condition for persons attending in pursuance of such invitation; and if he neglects his duty'in this respect, so that the hall is in fact unsafe, his knowledge or ignorance of the defect is immaterial.”

It is not at all certain that the jury came to a wrong, conclusion in finding that the defendant failed to exercise such reasonable care as the law requires, and the result is that the judgment is affirmed.


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    INJURY IN MACHINERY CLAIMED TO BE DEFECTIVE.
    Circuit Court of Cuyahoga County.
    The Forest City Provision Company v. Adolph Blaha.
    Decided, June 28, 1910.

      Charges—Failure to Define Issues.

    It is reversible error for the court to neglect to state the issues in a case to the jury, where there are several issues of fact to be determined by it, and to refer the jury to the pleadings for a determination of the issues, notwithstanding the court at the conclusion of the charge asks counsel if they have anything further to which to direct attention and they answer in the negative.

      Seaton A Paine, for plaintiff.

      A. W. Lamson and W. B. Beebe, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The relation of the parties here is the reverse of their relation in the court below. The terms plaintiff and defendant as used in this opinion, refer to the parties as they stood below.

The plaintiff was an employee of the defendant and worked on a sausage machine; on the 18th *of June, he was injured to such an extent that one of his arms had to be amputated. He complains' in his petition that this injury was occasioned by reason of the negligence on the part of the defendant in failing to furnish him a proper machine at which to work. A very considerable number of defects in this machine are stated in the petition. Issue was taken on these several charges of negligence by the defendant.

Numerous grounds of error are claimed to have occurred at the trial.

It should be said that the arm of the plaintiff was injured by receiving a severe blow from what is called the plunger in this sausage machine. We do not undertake here to give a description of the machine but content ourselves in saying that the injury was received from this plunger.

One of the charges of negligence in the petition was that the machine was being operated at an extremely high steam pressure.

Before argument, the court said to the jury, at the request of the defendant, among other things, the following:

“Among the allegations of negligence in the petition is one that defendant was negligent in operating said sausage machine at an extremely high steam pressure at the time of the injury to plaintiff.
“The court says to you that no evidence has been offered to sustain said allegation of negligence and the charge of negligence in this respect is not to be considered by you. ’ ’

Going to the general charge the court said to the jury among other things the following:

“There are various allegations of negligence of the defendant company that are set forth in the petition at great length. He claims that he was injured in this way: His arm was taken off, he suffered great pain in body and mind; and was damaged to the extent of $25,000; that he was without fault or negligence on his part.”

After then stating that all negligence was denied on the part of the plaintiff, the court said, among other things, to entitle the plaintiff to recover it is incumbent upon him to show by a preponderance of the evidence that the defendant company was negligent in the respects complained of in the petition or some of them, and that the injury which the plaintiff received resulted directly from such negligence.

The court further said to the jury:

‘! The allegations of negligence which will- entitle the plaintiff to recover are the allegations- of negligence that are contained ■in his petition; he doesn’t have to prove them all; if he proves any of the acts of negligence that was the proximate cause— that was the thing which caused his injury and he had proven that part by a preponderance of evidence, then he is entitled to a verdict.”

What has been quoted contains all that was said by the court as- to the issues made by the plaintiff. It has already been said that numerous items of negligence were- alleged in the petition, all of which were denied by the answer. Attention has already been called to the fact that the court instructed the jury before argument, that no evidence had been introduced as to one of the grounds of negligence charged in the petition, and yet the court here leaves to the jury to ascertain by an examination of the petition, and that alone, the negligent things which must be shown by the plaintiff in order to entitle him to a recovery. The court ought not to have left to the jury to search out from the petition the items of negligence charged. It left them to look to the petition and for every charge of negligence contained in it, and yet he had already said to them, there was no evidence tending to show negligence in one item charged. The court should have pointed out the several charges of negligence contained in this petition to which the attention of the jury must be given to reach a proper conclusion.

It is urged that because at the close of the charge this took place, to-wit, the court said, "Has either side anything further to direct my attention to, ’ ’ to which both parties by their counsel answered "No, we have not”; this error, if there was an error on the part of the court in failing to point out the issues, was cured, or rather that the defendant can not now be heard to complain because of the failure of the court to properly state the issues in the case.

We think this is answered by the case of The Baltimore & Ohio Railroad Co. v. Lockwood, 72 Ohio St., 586, the syllabus of which case reads:

1! In submitting a case to the jury, it is the duty of the court to separate and definitely state to the jury, the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the ease may require; and it is also the duty of the court to distinguish between, and call the attention of the jury to, the material allegations of fact which are admitted and those which are denied. It is error to read the pleadings to the jury and then say to the jury, and not otherwise to define the specific issues, that these constitute the pleadings in the case, which make up the issue and from which they will try and determine the controversy between the parties.
“It is error to refuse to charge the jury that it should not consider any other negligence than that charged in the petition.”

In this case the trial court said to the jury:

“There can hardly be any question in your minds, gentlemen of the jury, at this stage of this trial, after hearing the general argument of counsel and the several requests the court gave you and the reading of these pleadings, that the issue in this case is negligence or want of ordinary care, complained of on part of the railroad and denied by the railroad company, and allegations as to contributory negligence on the part of the plaintiff, which resulted in this accident.”

Judge Davis in his opinion uses this language, in reference to that part of the charge:

“The court thus left it to the jury to find out for itself what were the specific issues of fact as made up in the pleadings, and which it was the duty of the jury to decide from the evidence, under the instructions of the court. The court intimates to the j\rry that ‘the issue’ is negligence ‘on the part of the railroad company,’ and the contributory negligence ‘on the part of the plantiff.’ ”

The opinion then goes on to show that there were several charges of negligence in the petition, and then says:

“It is the imperative duty of the court to separate these and to definitely state to the jury those issues which are to be determined by it, accompanied by such instructions in regard to each as the nature of the case may require. A failure to do this necessarily leaves the jury to grope around through the technical and often verbose allegations of the pleadings to find the real points of controversy in the case. When there is but a single issue, which is tersely stated, this might not be prejudicial to the parties; but in almost every case there are intricacies which the jury, from lack of legal knowledge and experience, can not unravel without the assistance of the court. The jury should be distinctly instructed by the court as to the facts which are admitted; and wjthout this it can not be expected that a jury trial will result in an intelligent verdict.”

Our attention is called to the case of Railroad Co. v. Ritter, 67 Ohio St., 53, in which this language is used in the syllabus:

‘1 Where the charge of the court is free from error prejudicial to the party excepting thereto, but fails to cover all the questions involved in the ease, such failure is not a ground for reversal, unless it was called to the attention of the court, and further instructions requested and refused, provided the jury is not misled by the charge so given.”

This is cited in support of the proposition that the defendant, having been called upon in this1 case to ascertain if there was any point on which instructions were desired that had not been given, answered no.

It was undoubtedly because of what is said in this last named case that the court used the language quoted in the 72d Ohio St., supra, because in the case of Railroad Co. v. Ritter, supra, the court left the jury to determine the issues from the pleadings. But the court in its opinion in that case, used these words:

“It is well at this point to recall the very simple and narrow issue between these parties in the trial court, for it has much to do with our conclusions. The pleadings brought the issues into a very narrow compass.”

Judge Davis, in the opinion in Railroad Co. v. Lockwood, supra, recognizing what was said in Railway Co. v. Ritter, used the language already quoted, to-wit: “When there is but a single issue which is expressly stated, this might not be prejudicial to the parties. ’ ’

We think in the present ease the court erred in not following the statute requiring that the issues be stated, and that it was not incumbent upon the defendant to point out to the court specifically what it regarded as erroneous in the charge, even though asked if it desired to direct the attention of the court to anything further. The court had itself directed attention to the issues and had erroneously instructed the jury to ascertain from the pleadings what these issues were, and as already * * * stated, the defendant .was not called upon to point out to the court wherein the charge was erroneous, but at most to call the attention of the court to some matter entirely omitted in the charge.

On the authority of Railroad Co. v. Lockwood, supra, this judgment must be reversed for error on the part of the court in failing to properly state to the jury the issues in this case.

An examination of the record fails to disclose any other reversible error and for this error in the charge, and this alone, the judgment is reversed and the cause remanded for further proceedings.


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    SERVICE OF SUMMONS AT RESIDENCE CONTRADICTED.
    Circuit Court of Cuyahoga County.
    Lewis Mayer et al, Partners as Mayer, Scheuer, Offner & Co. v. Thomas H. Groves.
    Decided, November 9, 1910,

      Judgment—Vacating for Want of Service—Evidence.

      A judgment will not be vacated because of no service on the defendant, where the evidence contradicting the return of the sheriff of residence service is not clear and convincing.

      Burrows & Mason, for plaintiffs in error.

      Kline, Tolies & Morley, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The facts in this case are that on the 17th day of May, 1899, the plaintiffs filed a petition in the court of common pleas of this county against the defendant; that on the same day a summons was issued to the defendant on said petition, addressed to the sheriff of said county.'' Said summons was duly returned into court on the 24th day of May, 1899, with the following endorsement:

“State of Ohio, Cuyahoga County, ss: On the twenty-third day of May, 1899, I served this writ on the within named Thomas H. Groves, by leaving a true and certified copy thereof at his usual place of residence. Thomas F. MeConnel, by John J. Many, Deputy.”

On the first day of June, 1899, appears this entry on the docket of the court of common pleas in this ease:

“June 1, 1899, to court: Leave to answer by July, ’99. Journal 135, p. 355.”

No answer or other pleading was ever filed in said cause by the defendant, and on the 11th day of March, 1901, the case coming on regularly to be heard upon the petition of the plaintiff, a jury was empanneled and sworn; the plaintiff offered its evidence; the jury found for the plaintiff and assessed its damages at $1,441.16, and interest at 6% from the 4th day of January, 1901, together with a recovery for costs.

On the 12th day of August, 1899, a petition in involuntary bankruptcy was filed in the District Court of the United States and for the Eastern Division of the Northern District of Ohio, and among the debts scheduled in the proceedings filed in said petition in said district court, was of the indebtedness upon which the plaintiffs recovered their judgment.

On the 9th day of June, 1900, the defendant was discharged in said bankruptcy proceedings.

On the 19th day of July, 1909, a motion was filed in the Court of Common Pleas of Cuyahoga County to vacate said judgment so obtained by the plaintiff on the ground that no service of summons was ever made upon the defendant, and that he had no •notice of the institution or pendency of the action in which said judgment was taken, and that he had no knowledge that he had been sued in said action until the 20th day of April, 1909,

Upon the hearing of said motion on the 20th day of December, 1909, the same was granted and said judgment was suspended until the final adjudication of the facts claimed by the defendant. Thereupon, on the same date, the defendant filed his answer in said cause, setting up said bankruptcy proceedings and his discharge therein. On the 29th day of January, 1910, the cause came on for hearing in said court of common pleas and judgment was rendered in favor of the defendant. The present proceeding is brought seeking to reverse the order setting aside said judgment. That motion was heard upon the evidence, all of which is before us in a bill of exceptions. From this evidence it is urged that the court was not justified in making said order of vacation. We have no doubt of the authority of the court to make the order, if the facts were as claimed by the defendant as to the service of the summons and his want of knowledge of the pendency of the action in which the judgment was taken. The evidence on which the defendant relies is the testimony of himself and wife. He testifies in positive terms that no summons was served upon him nor to his knowledge left at his residence. He says in an affidavit which was introduced in evidence on said motion, that at the time said summons appears by the return of the sheriff to have been served upon him, he resided near the corner of Euclid and East Madison avenues in the city of Cleveland, in said county, and that the house was occupied by none other than himself and wife at the time. Pie further says that he never received a copy of the summons and never had any knowledge of the institution of the suit until the 20th of April, 1908; that during the months of May, June and July, 1899, the Hon. E. J. Blandin, an attorney in Cleveland, was his attorney, whom he consulted on all legal matters in which .he was then involved, and that he never authorized him or any other attorney to appear in said suit for the purpose of obtaining extension of time for answer or for any" other purpose.

His wife, in an affidavit filed in evidence on the hearing of the motion says that during the month of May, 1899, she and her husband resided in the house mentioned by the defendant in his affidavit; that at the time the only inhabitants of the house were herself and her husband, and she says.-

“I was at home during the month of May, 1899, and no copy of a summons issued by the Court of Common Pleas of Cuyahoga County was left at our residence during that month, and I never knew of the institution of the above entitled action or of the recovery of a judgement against my husband thereon until April, 1909.”

So far as this statement of Mrs. Groves is concerned, it may be true, as far as it went, and still a summons may have been served at that residence as stated, in the return of the sheriff. She does not say that she was at home “all” of that month, and even if she did, it might well be that using the words in the sense in which people ordinarily use the words ‘ ‘ I was at home during the entire month” it would not mean that she was not out of the house at any time during said month, or that she might not have been away for many hours, or some particular day of that month, or absent for a considerable part of several days. Judge Blandin’s affidavit as filed shows that he never appeared for the defendant in this action, nor had he any knowledge that such action was pending. On the other hand is the evidence of the return of the sheriff. This can only be overturned by clear and convincing evidence, as was said by this court in the opinion delivered on the 21st day of February, 1905, in the case of John G. Keefe v. James W. Everden.

Next is the entry on the court docket, showing an extension of time for answer in the then pending action in the court of common pleas. This extension was made before the answer was due and extended the time but two weeks beyond which the defendant would have been required to answer had no extension been given. Yet it is inconceivable that the court should have made this entry on its own volition. Somebody must have appeared and asked for this extension, and it can. hardly be doubted that, whoever this person was, concerning which the record is silent, he was an attorney, recognized by the court, or it was the defendant himself. Presumably it was an attorney at law, and it would require strong evidence to convince one that an attorney, without any authority in the premises1 whatever from the defendant, should have appeared and made the application. There is further the affidavit of Mr. George IT. Burrows, a reputable attorney of this bar, filed about the 1st of June, 1899," who had a conversation with the defendant in which the defendant -said: “I am sorry you brought the suit against -me for Mayer, Scheuer, Offner & Company for the reason that the claim is large and it is apt to bring other creditors upon me. ’ ’ He says further that in that conversation Mr. Groves said to him (Burrows) that Mr. Frank Skeels, who was then an attorney practicing in Cuyahoga county, Ohio, represented him in the matter of Mayer, Scheuer, Offner & Co., as well as in a number of other cases which were pending against him before justices of the peace.

In another affidavit Mr. Burrows testifies that he had a talk with Mr. S. H. Tolies, an attorney at this- bar, in the' spring of, or summer of 1901, in which Mr. Tolies said to him that Groves had written to him about this judgment and that he had decided to take no action whatever in the matter; that Groves had received his discharge in bankruptcy and that the judgment was absolutely worthless against Groves. Mr. Tolies files- his affidavit in which he says that he has no recollection of any such conversation with Mr. Burrows, nor of having received any letter from Groves on this subject, and that he is unable to find any such letter in the files of his office. Mr. Burrows produces copies of a considerable number of letters written by him or his firm to Mayer, Scheuer, Offner & Co. after the suit was brought. One of these letters is dated July 15, 1899, in which it is stated that the' attorney for Mr. Groves had telephoned Mr. Burrows that he was trying to arrange to raise money to avoid the litigation, and requested that no snap judgment should be taken on him and that they would not file an answer for a little time if Burrows would consent not to take a judgment until after the date of the letter. Another letter of August 9, 1899, written by Burrows to his clients, says that he had a talk that day with Groves in which Groves said that they would soon be able to pay something. Other letters were introduced which tended to show that either Mr. Burrows was preparing himself to be able to say that Groves knew of the pendency of the action or else Burrows in the letters told the truth.

There is also filed the affidavit of W. E. Rice, a reputable attorney of this bar, not now a practicing lawyer at this bar, but a reputable man, and at the time this judgment was taken a partner with Mr. Burrows in the practice of law; he says in his affidavit: “that subsequent to the filing of the petition in the case within a week or ten days, he saw Groves and Groves told him not to carry out the suit to judgment and he would pay the claim of the plaintiffs in weekly installments.” He says that Groves talked freely about the suit having been brought, saying that he was sorry that the attorneys for the plaintiffs had been so expeditious in bringing the suit, as it only added to the expense and they would not get the money any quicker by reason of the suit.

From this and the other evidence introduced on the hearing of the motion it seems to us that not only was the evidence clear and convincing that Groves was not served with summons but that it is on the other hand clear that he was and that in any event he knew of the pendency of that suit at the time it was pending and before judgment was entered in it.

The result is that the judgment of the court of common pleas must be reversed and the cause remanded.


text:
    RESTRICTION AS TO CHARACTER. OF BUILDINGS WHICH MAY BE ERECTED.
    Circuit Court of Cuyahoga County.
    Charles D. Boehme et al v. Milton E. Bertram.
    Decided, November 14, 1910.
    1. A restriction in a deed that the premises conveyed shall be used for ‘‘residence purposes only,” means that a residence for one family only can be erected upon the premises.
    2. One owner in an allotment who himself has violated such a restriction can not enforce it against another owner in the same allotment.

      F. F. Bruml, for plaintiffs in error.

      White (& Grosser, contra.
    Marvin, J.; Winch, J.,'and Henry, J., concur.
   The facts in this case are these:

There is an allotment of land in the city of. Cleveland in this county known as Sehatzinger & Tromain’s Subdivision. This •allotment contains a large number of lots, most if not all of which have a frontage on the several streets of forty feet and a depth of one hundred and twenty-five. One of the streets passing through this allotment is No. 124.

A general plan and scheme was adopted by the original proprietors of this allotment by which the several lots were to be used for the purpose of dwelling-houses only. The original deeds for the lots fronting on 124th street had a restriction reading, 1 ‘ that said premises shall be used for residence purposes only; that no intoxicating liquors of. any kind shall ever be sold or manufactured on said premises.” The plaintiffs are the owners of lot No. 58 fronting-son said 124th street. The defendant is the owner of lot No. 59, which fronts on the same street and-adjoins said lot owned by the plaintiffs. The plaintiffs have erected on their said lot a dwelling-house, suitable and used for the residence of one family only.

Unless restrained by the order of the court the defendant will erect on his said lot a residence suitable and intended for the residence of four families. The purpose of the present action is to obtain an order perpetually enjoining the defendant from erecting the said four family building and residence.

Residences, suitable and intended for the occupation of two families each have been erected on several of these lots fronting on 124th street and without any objection or remonstrance on the part of the plaintiffs or anybody else.

The plaintiffs themselves accepted a deed for one of the lots in this allotment containing a restriction that no residence for more than two families should be erected on the lot conveyed by such deed, and they conveyed this lot to another party with a like restriction.

The only question raised and the only defense here made by the defendant is that the plaintiffs are estopped from interfering with the defendant in the erection of the residence which he proposes to erect; and that is, a residence suitable for four families.

Our Supreme Court have decided in the case of The Linwood Park Co. v. Dudley et al, 63 Ohio St., 183, that where a lease contains a provision that the lessee would use such premises for the purpose of a private dwelling or a residence only, that the letting out of rooms to temporary occupants in any dwelling on the leased premises was a violation of the restriction. And, in the case of Rose v. King, 49 Ohio St., at p. 213, it is held that a four-story building occupied by three families living in separate apartments on the second floor, and by two families living in separate apartments on the third floor, numbering in all sixteen persons, all tenants of one owner, is a tenement house as distinguished from a family residence, within the meaning of the statutes providing for the protection and the regulation of tenement houses. And we think that it may be regarded as settled that in Ohio, a restriction such as that contained in the deeds already mentioned, is violated by the erection of a dwelling, suitable and intended for the use of more than one family. That being so, it is clear that the original general plan of this allotment has been violated and the restriction in the deeds has been violated by each person who has erected a dwelling fitted for more than one family, and it is clear from the facts in the case, as has already been stated, that this has been done with the assent, that is, without any complaint on the part of the plaintiffs. And we therefore reach the conclusion that the general plan and the restriction in reference to the number of families for which a dwelling may be erected have been waived by the plaintiffs, and that they can not now be heard to complain that one is violating a restriction when he erects a dwelling suitable for four families. Because, having assented to the violation of the restriction (which we hold to be that dwellings shall be erected for one family only), to the extent of assenting to their being used for the residence of more than one family in each dwelling-house, it is not now in the mouth of the plaintiffs to say what number of families may be provided for in a dwelling-house on one of these lots.

The result is that the petition of the plaintiff is dismissed.