author: .MOONEY, J.

text:
    MASTER AND SERVANT — NEGLIGENCE—PLEADING— DAMAGES.
    [Logan (3rd) Circuit Court,
    January Term, 1904.]
    Day, Mooney and Norris, JJ.
    Cleveland, C. C. & St. L. Ry. v. William P. Tehan (a Minor).
    1. New Woee: Presumed to be More-Dangerous to Servant, When.
    New work which a servant is ordered by his foreman to perform, and which, he was engaged in performing at the time of receiving his injury, will be presumed to be more dangerous to him than the work he was employed to do, the ordinary risks of which he agreed to assume, from a petition which avers that, in obeying the orders of the foreman, he did not know the dangers that would attend his act of obedience, and that while performing such service he was injured without fault or negligence on his part. And as it was more dangerous for him to perform work with the dangers of which he was not acquainted, than work with the dangers of which he was acquainted, an express allegation that the work was dangerous is not, in such case/essential.
    2. General Allegation oe Negligence Limited to Particular Acts Pleaded.
    A general allegation of negligence on the part of defendant will, on demurrer, be limited by the particular specifications of negligence that are pleaded and those which are implied from them. Hence, where the casual connection is established between the general negligence alleged and the injury, it is also established as between the special acts of negligence alleged, which limit the general allegations.
    3. Petition Charging Negligence oe Master Good Against General Demurrer, When.
    An express allegation in plaintiff’s petition that) having been employed to do certain work, he was ordered to do other work with the dangers of which he was' not acquainted, and that while, in obedience to such order he was doing the new work he was injured without fault or negligence on his part, sufficiently establishes, as against general demurrer, that plaintiff was injured because of the particular acts of negligence charged against defendant in the petition.
    4. Incidental Facts mat be Proved Under General Averment, When.
    A general averment that defendant was negligent in ordering plaintiff to do certain work, other than that for which he was employed, with a total inexperienced young man as a helper, without an express averment that the latter was “incompetent,” furnishes the predicate for the proof of all such incidental facts and circumstances, both of omission and commission, as fairly tend to establish the negligence of the primary fact complained of, and, as against a general demurrer, is sufficient; a fortiori in the absence of a motion to make definite and certain.
    5. Contributory Negligence oe Plaintive Must be Pleaded and Proved.
    The general rule that the contributory negligence of plaintiff must be pleaded and proved by defendant, applies to an action commenced by a servant against the master to recover damages caused by performing certain work other than that for which he was employed, under order of the master, with an inexperienced servant, of whose qualifications and inexperience the servant was without knowledge, but which the master was presumed to know by reason of several years’ 'experience in the business, and his opportunity to acquaint himself of his servants’ qualifications.

      •6. Defective Petition Cubed by Answeb, When — Ebbob Must be Peejudicial to Waebant Revebsal.
    The failure to plead a material fact in a petition is cured when the answer puts the omitted fact directly in issue; and when it appears that substantial justice has been done the parties, the error in the trial court in overruling a demurrer to the petition will be disregarded by a reviewing court under Sec. 51X5 Rev. Stat.
    7. Defective Pleading Cubed by Evidence and Veedict, When.
    A pleading which omits or defectively states a material allegation is cured where evidence is'admitted at the trial, without objection, to prove such, allegation, and a verdict on an issue involving such allegation is returned.
    8. Recoed Need not Show Amended Petition, When.
    While it may be necessary for the record to show an amendment to a petition which is wanting in a material averment, in order to support a verdict thereon, when the record consists solely of pleadings, rulings thereon, record of the fact of a trial, verdict and judgment, yet, where a bill of exceptions showing all the evidence and proceedings at the trial is made by proper order a part of the record, such amendment, as a general rule, is unnecessary where the evidence and proceedings sustain the verdict; in such case, an .amendment will be implied on error. But where the verdict is not thus sustained, the fact that an amendment was allowed and filed will not aid the verdict or judgment, unless shown by the record.
    ■9. Veedict of $5,000 fob Loss of Eye-not Excessive, When.
    A verdict and judgment for $5,000 for the loss of an eye, in favor of a young man just rentering upon a career as a mechanic for which he had some aptitude, which injury may compel him to follow some other pursuit, or which, if he continues in the same business, will or may render him less efficient therein, and which may also cause a total loss of sight, is not excessive.
    ERROR to Logan common pleas court.
    The original action was commenced in the court of common pleas by defendant in error as plaintiff against plaintiff in' error as defendant. Said plaintiff stated in his petition in substance, that defendant, a railroad corporation owns and operates extensive machine and repair shops in the city of Bellefontaine; that on January 1, 1902, plaintiff was employed by defendant to work in said shops as a boiler maker’s helper, his duty being to help a boiler maker as an assistant but not to perform a regular boiler maker’s work; on or about July 21, 1902, the foreman of said boiler maker’s shop ordered plaintiff to perform a regular boiler maker’s work; on July 22, 1902, while plaintiff was performing a boiler maker’s work under said orders, he was assisted by a young man, totally inexperienced in ..said work, as an assistant and helper; while plaintiff was so employed and with said inexperienced assistant, in cutting off the rivets of the connection of a boiler, plaintiff was holding a tool called a side set on the head of a rivet and said assistant was striking said tool «o as to remove the head of said rivet; said assistant struck said tool so •carelessly and nnskillfnlly that a piece of the head of said rivet struck plaintiff in the left eye, totally destroying the sight thereof so that the ■said eye had to be removed.
    “Pláintiff avers that there was negligence on the part of defendant in the following particulars:
    “1. The plaintiff was young and inexperienced and did not know the danger he incurred by obeying the orders of said foreman in performing a regular boiler maker’s work, instead of continuing in his regular employment as a boiler maker’s helper and assistant. Defendant was guilty of negligence in ordering plaintiff, with his inexperience, to engage in and perform the duty of a regular boiler maker and in taking him from his position and work as a boiler maker’s assistant and helper.
    “2. Said defendant was also guilty of carelessness and negligence in placing said inexperienced young man to work with him as an assistant. He avers that his injury and the loss of his left eye was caused solely by the carelessness and negligence of the defendant. He also avers that he, plaintiff, was not guilty of any carelessness or negligence and that he was without fault on his part. He prays judgment in the sum of $10,000. ’ ’
    To this petition defendant filed a general demurrer and the same was overruled. Defendant thereupon filed its answer in the first defense of which it denied each and every allegation in the petition of unskillful-mess'and inexperience on the part of the plaintiff and said assistant, at the time of the injury, and all allegations of carelessness or negligence on the part of defendant. For a further defense said defendant avers that after plaintiff had been in the employment of defendant ah a boiler maker’s helper and as an apprentice or learner for more than six months continuously, at low wages, he represented and stated to defendant’s foreman that he, plaintiff, had acquired sufficient knowledge and skill in the business to entitle him to an advanced position and at advanced wages, and that he had sufficient knowledge and skill to manage and conduct the cutting of rivets in which he was engaged at the time of the injury and in the manner in which he was so engaged. Defendant states that in fact said branch of the business is one of which sufficient knowledge and skill to conduct it safely can be acquired by anyone and especially by one of plaintiff’s mechanical aptitude in a few days or even a few hours. The defendant’s foreman, upon diligent and careful inquiry, believing plaintiff’s said statements to be true, expressly employed plaintiff to do this work he was doing at the time of his injury, paying him therefor increased wages. Defendant denies plaintiff’s alleged want of skill and his alleged want of knowledge or information of the dangers and perils incident to and connected with his employment at the time of said injury. Defendant denies the want of knowledge, skill and experience on the part of the person who was helping-plaintiff at the time of said injury and through whose alleged negligence plaintiff asserts the injury was caused in part. Defendant avers that said assistant was sufficiently skillful in that line of employment and was of sufficient experience, in the use, of sledge hammers and such like-tools, to be employed by defendant to perform the service in which he was engaged at the time of said injury, and that before the employment of said assistant by defendant said defendant made diligent and careful inquiry as to said assistant’s said knowledge, skill and experience in the use of said tools, and from the knowledge and information acquired by defendant on such inquiry defendant believed and had the right to believe- that said assistant then possessed such sufficient skill, knowledge and experience. Defendant further avers that said assistant was, at and before the time of the injury, an acquaintance of and well known to-plaintiff. It is further averred that plantiff’s injury occurred “through one of those unavoidable accidents possible to' occur in any mechanical trade or business, when conducted by the most skillful, which can neither-be foreseen nor guarded against by any care or diligence.’?
    P-laintiff by reply denies each and every allegation of the second defense of the answer. Upon issues thus joined the trial was had to a jury, certain evidence referred to in the opinion was given by plaintiff without objection; the court charged the jury as is stated hereafter and a general verdict returned for plaintiff in the sum of $5,000. Defendant filed its motion for a new trial one ground of which was that the verdict is against and not supported by sufficient evidence. Pending this motion and before judgment was entered on the verdict, plaintiff, ■ against the-objection and over the exception of defendant, obtained leave to file an. amended petition to conform his pleading to the facts proved. An amended petition was accordingly filed and defendant, without waiving his objection to such filing, obtained leave to file and thereupon filed an amended answer. To this amended answer plaintiff filed a reply. Defendant’s motion for a new trial was thereafter overruled and judgment for plaintiff was entered on the verdict. The errors assigned are, in substance, in overruling defendant’s demurrer to the petition, in refusing requests to charge, in the charge as given to the jury, in permitting plaintiff to file his amended petition; that the verdict is not supported by sufficient evidence; that neither the petition, nor the amended petition states facts sufficient to constitute a cause of action and the judgment is therefore contrary to law.

      West & West and Samuel H. West, for plaintiff in error.
    John A. Price and Thos. M. Shea, for defendant in error.
   .MOONEY, J.

The asserted defects in tbe original petition are these: Failure to state that the work at which plaintiff was engaged at the timé of the injury was dangerous and more dangerous than plaintiff, as alleged, was employed to perform; failure to state that the helper assisting in the work at said time was incompetent and that defendant knew it; that it was negligent in not knowing it, and that plaintiff did not know it; and failure to allege a casual connection between the alleged acts of negligence and the injury to plaintiff.

It is not expressly alleged that the work was dangerous. It is stated that plaintiff in obeying the orders and directions of the foreman at the time did not know the 'dangers that would attend his act of obedience, and that while performing such service he was injured without fault or negligence on his part. If these averments stood alone, no account being taken of any charge of negligence' against defendant, we think the inference would arise from the facts stated, that the work was dangerous. It is not stated that the work was more dangerous in the abstract than the work was that plaintiff alleges he was employed to perform. It is believed that the question is not one of quantum of danger in the abstract, but is one of danger to the plaintiff. It is alleged in the petition that plaintiff had been employed as a helper continuously for more than six months. It is not alleged that the work of the helper is in any degree dangerous to the helper himself. Unless we infer that such work is dangerous to the helper himself, it follows that if the work plaintiff was doing at the time of the injury was dangerous it was also more dangerous than the work of the helper.

Again, if plaintiff worked as helper for six months it must be assumed that he knew the dangers incident to his work as helper. He alleges that he did not know the dangers of the work he was directed to do and was doing at the time of the injury. It was more dangerous to him to do work with the dangers of which he was not acquainted than to do work with the dangers of which he was acquainted.. Hence, while not stated,, it may be inferred that the work he was doing was more dangerous to him than the work he was employed to do and the ordinary risks of which he agreed to assume. Consolidated Coal Co. v. Haenni, 146 Ill. 614 [35 N. E. Rep. 162] ; Cincinnati, I. St. L. & C. Ry. v. Lang, 118 Ind. 579 [21 N. E. Rep. 317]; Pittsburg, C. & St. L. Ry. v. Adams, 105 Ind. 151 [5 N. E. Rep. 187] ; Chicago & N. W. Ry. v. Bayfield, 37 Mich. 205, 210.

It is not directly alleged that plaintiff was injured through or because of the particular acts of negligence of defendant charged in the petition. It is, however, alleged that plaintiff without fault on his part was injured through the negligence of defendant and that defendant was negligent in the following particulars (specifying them). It is also expressly stated that plaintiff having been employed to do certain work, was ordered to do other work with the dangers of which he was not acquainted and that while, in obedience to such order, he was doing th p new work he was injured. We think this latter establishes the casual' connection and beside was sufficient as against a general demurrer as a pleading of negligence (Davis v. Guarnieri, 45 Ohio St. 470 [15 N. E. Rep. 350; 4 Am. St. Rep. 548]) ; and besides we are also of opinion that while negligence is thus generally alleged, the general allegation would on demurrer be limited by the particular specifications of negligence that are pleaded and those that are implied from them. In this view if the casual connection is established between the general negligence alleged and the injury it is also established as between the special acts of negligence alleged limiting the general allegation.

It is not expressly averred that the assistant, Ivory, was incompetent. It is averred that defendant was negligent in ordering plaintiff to do this work in connection with William H. Ivory, a totally inexperienced young man, as a helper. The allegation is in substance that defendant was negligent in ordering plaintiff to do the work under the circumstances disclosed, and with an inexperienced assistant. Ivory may have been not incompetent to do the work but yet being without experience it may have been an act of negligence to send him to assist plaintiff under the circumstances then existing.

“The allegation in a pleading that the party complained against negligently committed the particular act which led to the injury whose redress is sought, furnishes the predicate for the proof of all such incidental facts and circumstances both of omission and commission, as fairly tend to establish the negligence of the primary fact complained of.” Davis v. Guarnieri, 45 Ohio St. 470, 485 [15 N. E. Rep. 350; 4 Am. St. Rep. 548].

See particularly Golley & Finley Iron Works v. Callan, 4 Circ. Dec. 233 (9 R. 217) — a case resembling this one on the facts. If it furnishes such predicate the general allegation is good against a general demurrer and at all events in the absence of a motion to make definite and certain, is sufficient.

While it is very apparent that the petition is threadbare in spots-still it is very doubtful whether the court below was not right in overruling the demurrer to that pleading. At the very least we think that every fact necessary to constitute a cause of action can be inferred from the facts expressly stated.

Certain other alleged defects in the petition are insisted to be fatal under the rule announced in the case of Coal & Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857]. That ease announces a rule which constitutes an exception to the general rule in this state that the duty to plead and the burden to prove contributory negligence of plaintiff is upon the defendant. The general rule in this state still being recognized, the exception should not be extended upon mere suspicion. This case is not one of defective appliance or unsafe place and negligence charged in connection therewith and hence the case referred to does not apply. If it did, Ivory was employed by defendant two days before; defendant then had an opportunity and a duty to know what his qualifications were; plaintiff denies knowledge of the dangers and if those arose from the inexperience of the helper, then the denial goes to the effect of the inexperience of Ivory; defendant had conducted the shop for years and so is presumed to know what the fitness of Ivory was as well as the effect of his inexperience; so that from the facts stated, the facts required to appear by the rule laid down in the case cited may be inferred.

We have thus far "proceeded upon the theory that if the demurrer to the petition was improperly overruled the error should reverse the-judgment. There are exceptions to this rule and we proceed to inquire whether the case at bar is not within one or two of them.

The demurrer having been overruled defendant by leave filed its answer. Plaintiff had pleaded that his injury was due to defendant’s, negligence and arose from a risk not assumed by him. The first defense of the answer denied the negligence and also denied that the risk was not assumed. Under this pleading of the first defense all the evidence given at the trial would have been proper. But defendant by its second defense alleged that the work was not dangerous; that all risk of injury therefrom was as open and apparent to plaintiff as to defendant’s foreman or any other of its agents or servants; that plaintiff in a few days- or even a few hours could acquire the knowledge and skill to perform said work safely and skillfully; that Ivory had sufficient knowledger skill and experience to perform his part of the work properly and before defendant employed said Ivory it made diligent inquiry and ascertained therefrom that he had such knowledge, skill and experience and defendant then believed and had good reason to believe such fact and that said Ivory was an acquaintance of and well known to plaintiff. It is further stated that the injury to plaintiff was due to an accident unavoidable in any mechanical trade, even when conducted by the most skillful. The plaintiff by reply denied these allegations.

It will not be contended that if the negative averments made up by the denial of these allegations of the second defense were inserted in second defense that the injury resulted from doing the work — hence, the the petition, the alleged defect would not exist. It is conceded by this casual connection; that the injury or the possibility of it necessarily attends the work — hence it is dangerous; that defendant did inquire and did know the fitness of Ivory to do the work and it is not alleged that plaintiff had made such inquiry or had such knowledge. Defendant denies acquaintance with Ivory and thus, taking the admission by the defendant and the denial by plaintiff together it follows that the servant did not have equal means of knowing with the master. At all events taking all the pleadings together as they stood when the trial commenced it was perfectly patent to the parties and the court, what the affirmative and negative averments upon which the plaintiff relied for a recovery in the action were. Thus every purpose of pleadings was accomplished.

“Where a material fact is omitted in a declaration, the defect is cured if the subsequent pleadings put the omitted fact directly in issue. ’’ Elliot v. Stuart, 15 Me. 160; Feibelman v. Insurance Co. 108 Ala. 180 [19 So. Rep. 540]; Gaines v. Summers, 39 Ark. 482; Worthley v. Hammond, 70 Ky. 510; Louisville & N. Ry. v. Lawson, 88 Ky. 496 [11 S. W. Rep. 511]; Ritchie v. Ege, 58 Minn. 291 [59 N. W. Rep. 1020]; Wagner v. Railway, 97 Mo. 512 [10 S. W. Rep. 486; 3 L. R. A. 156]; Allen v. Chouteau, 102 Mo. 309 [14 S. W. Rep. 869]; Hamilton v. Railway, 17 Mont. 334 [42 Pac. Rep. 860; 43 Pac. Rep. 713]; The Nancy, 3 Caines (N. Y.) 38; Knowles v. Railway, 102 N. C. 59 [9 S. E. Rep. 7] ; Cowell v. Real Estate Co. 63 Pac. Rep. 991 (Colo.) ; Savings Bank v. Barrett, 126 Cal. 413 [58 Pac. Rep. 914]. In this case a demurrer to the complaint was improperly overruled, yet it was held that the express denial of the omitted fact by the answer supplied the defect. Flinn v. Ferry, 127 Cal. 648 [60 Pac. Rep. 434]; Beebe v. Latimer, 59 Neb. 305 [80 N. W. Rep. 904]; Louderman v. Judy, 1 Circ. Dec. 526 (2 R. 351) ; reversed on other ground, Judy v. Louderman, 48 Ohio St. 562 [29 N. E. Rep. 181]. In Yocum v. Allen, 58 Ohio St. 280 [50 N. E. Rep. 909], it was held that where a demurrer was improperly overruled to a petition.a judgment thereon for plaintiff should not be reversed if it appears from the whole record that the overruling of the demurrer was an error which was not prejudicial to the adverse party. In that case the ,Court quotes and enforces the provisions of See. 5115 Rev. Stat.

“The court in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of such error or defect. ’ ’

In harmony with this statute and upon the very reasoning of the case last cited it must be here held that the error, if any, in overruling the demurrer was not prejudicial to plaintiff in error.

Again, “where an averment which is necessary for the support of the pleadings is imperfectly stated, and the verdict on an issue involving that averment is found, if it appears to the court after verdict that the verdict could not have been found on this issue without proof of this averment, then, after verdict the defective averment which might have been bad on demurrer is cured by the verdict.” Heymann v. The Queen, 12 Cox C. C. 383. And see Gittings v. Baker, 2 Ohio St. 21; Howe v. Railway, 10 Circ. Dec. 220 (18 R. 606); Davey v. Miller, 1 O. S. C. D. 593 (37 Bull. 203) ; Gould, Pleading (5 ed.) 558. For a stronger reason this should be the law if without objection at the trial evidence is admitted to prove the allegation omitted or defectively stated. It has been held repeatedly in this state that where in the absence of a denial the allegations of a pleading are at the trial treated as denied, a verdict and judgment rendered on that theory will not be disturbed for want of such denial. If this rule obtains in the absence of the usual pleading why should it not obtain in the ease of a defective pleading as well.

We are of opinion that for the reasons stated and upon the proceedings had at the trial hereafter referred to, the question of the defect, if any, in the original petition is not now available to plaintiff in error as ■a ground to reverse the judgment and so the error, if any, in permitting the amended petition to be filed after verdict rendered, is also immaterial. Where the record of a particular case consists solely and alone of the pleadings, rulings thereon, record of the fact of a trial, verdict and judgment, and the petition is wanting in a material averment, it may be necessary to show an amendment to the petition to support a judgment thereon. But where, as here, a bill of exceptions showing all the evidence and proceedings at the trial is made by proper order a part of the record such amendment will rarely, if ever, be necessary, for,, in such «ase, if the evidence and proceedings sustain the recovery an amendment will be implied even on error; bnt if tbe evidence and proceedings do> not sustain tbe recovery, tbe fact that an amendment was allowed and filed will not aid the verdict or judgment.

Tbe bill of exceptions (a part of tbe.record) shows that at the trial and without objection plaintiff below offered evidence tending to prove that on December 29, 1900, plaintiff then seventeen and-one-half years-old entered tbe service of defendant at said shops as a rivet beater, bis duties being to beat rivets, pass rivets and do other odd jobs around tbe shops, such as bolding lights for boiler makers; be continued in this employment until about January 1, 1902, when be was advanced to tbe position of helper by tbe general foreman of tbe shop r tbe duty of a helper is to assist the boiler maker in whatever tbe latter has to do but “be is not supposed to learn tbe trade at all.” Plaintiff continued in tbe position of helper until July 21, 1902, when be was ordered by defendant’s foreman to bold a side set, which is a part of a regular boiler maker’s work. He bad never before performed that kind of labor, bad no knowledge of its danger, and neither defendant or any of its agents or-servants nor anyone else gave him any instructions as to bow the work should be done and no one informed him as to tbe danger incident to that kind of work. Tbe side set is a tool used in cutting tbe beads off boiler rivets when it is desired to remove tbe rivefa from a. boiler. It is something tbe shape of a long-bitted hammer, one edge of which is beveled something like a cold chisel and the other end shaped! 'like tbe poll of tbe ordinary hammer. It is fitted with a wooden handle about two and one-half feet long. When in use the cutting edge of the side set is held against a rivet by the boiler maker, and the helper with a sledge hammer strikes the poll of the side set and then the head of the rivet is partly cut and partly broken off, when the rest of the rivet is driven through into the inside of the boiler and the rivet thus removed. The purpose of the side-set handle is to enable the boiler maker to stand at a point where he will not be in danger of being struck by the helper’s-sledge. On July 21, 1902, plaintiff, with Ivory as his helper, worked eight hours in removing rivets from a boiler and in that time they removed all the rivets on one side of a boiler. On July 22, 1902, they continued the work on the other side of the boiler from the time of commencing work until eight o’clock in the morning. They were then ordered to and did perform some other work until nine o’clock when they returned to the work of removing rivets. While removing the fourth rivet after their return the injury of which plaintiff complains was sustained by him. At this time Ivory’s hands were sore and he was striking quite rapidly and sometimes would hit the head of the side set squarely, sometimes on tbe edges, and sometimes missed it altogether. The proper and safe manner, as plaintiff says he has since learned, for Ivory to strike was slowly and squarely on the head of the side set. When the head of the fourth rivet was nearly off a sliver of it flew off and struck plaintiff in the eye, destroying his sight and so injuring the organ that it had to be removed. Plaintiff never requested that he be put at this work. As a rivet heater plaintiff was paid eight cents per hour, as a helper fourteen and one-half cents per hour until the middle of July, 1902, and after that plaintiff and all other helpers were paid fifteen cents per hour, boiler makers were then paid twenty-four to twenty-six cents per hour.

The work of removing rivets in the manner above described is dangerous to the person holding the side set. The danger consists in the fact that when the head pf the rivet is being removed it or a part of it may fly in any direction and hit said person. To obviate this danger as far as possible skill is required on the part of the person wielding the sledge, to know with what force to strike when the head is nearly off; skill is also required on the part of the person holding the side set to know the proper position — the angle at which the tool should be held. And with this skill on the part of both these persons the safety of the person holding the side set requires that he hold a screen — a broom or cloth or some such article between him and the rivet to guard his person. Plaintiff when directed to do this work did not know and was not informed as to the position in which to hold the side set; did not know and was not informed as to the necessity of a shield, and although while employed in the shop, he had noticed persons using the side set, he had never observed the same closely or more than casually. Ivory had never performed or assisted in this work before July 21, 1902; he had no knowledge of its dangers; his ability to wield the sledge, so far as skill is concerned, is such as he derived from driving spikes in railroad ties in railway repairs or construction, and this fact defendant knew and plaintiff did not know. Said Ivory was for six years an employe of defendant as a section hand, but whether immediately before his employment in the shops does not appear from the evidence. The want 'of skill of plaintiff, of Ivory, and the absence of a shield may each and a.11 have contributed to cause the injury. Assuming that there was a conflict of evidence upon all these points and assuming that the evidence admitted without objection supplied omitted material averments of the petition, we are of opinion that the ease so made was and is one for the jury-

Defendant below presented eleven special requests to charge. These were all in terms refused. Most of them set out a certain set of circumstances under which the plaintiff would not be entitled to recover. The court, and we think very wisely and properly, contented itself with a statement of the facts that if proved would authorize a recovery and stated in effect that if these necessary facts were not proved the verdict should be for defendant. The charge is clear, concise and correct. The jury by reason of its clearness could understand it; of its conciseness could have remembered it, and of its correctness could not have been misled as to the law. The benefit of the special requests so far as they are correct was secured to defendant by the general direction of the court to find for defendant if the material and necessary facts upon which plaintiff’s right to recover depended were not each and all of them proven.

The point upon which we have had some hesitation was the amount of the damages. But we discover that this is not stated as a ground of the motion for a new trial nor specially assigned as error here. This young man has been deprived of one eye by a violent injury. It is common knowledge that the sight of the other may thereby be impaired or lost. He was entering upon a career as a mechanic for which he had some aptitude. He may be compelled to follow other lines, or, if he continue in the same line, will or may be less efficient and will run a double hazard of total loss of sight in its pursuit. We conclude that all these facts were as well known to the jury and the trial judge as to us, and that in fixing the damages under the circumstances of this case they had assurance of arriving at a correct result equal in every respect to us, and so, particularly when not requested, we will not hold that the damages are excessive. It is but proper to add that after reflection and consideration we do not believe that the damages are excessive.

We find no reversible error in the record and so the judgment is affirmed at costs of plaintiff in error. Judgment for costs and execution awarded qnd cause remanded to the common pleas for execution.

Day and Norris, JJ., concur.


source: Caselaw Access Project

author: MOONEY, J.

license: Public Domain

text:
    REMOVAL OF CAUSES — COURTS—CORPORATIONS—RECEIVERS — MORTGAGE—EQUITY.
    [Marion (3rd) Circuit Court,
    January Term, 1904.]
    Day, Mooney and Norris, JJ.
    John T. Monnett v. Columbus, S. & H. Ry. et al.
    1. Right to Insist That Case is Removed to Federal Couet hot Lost by Making Defense ob Appealing.
    Defendant’s right to insist that the case has been removed into the federal court, is not lost by his making a defense in the state common pleas court after its refusal to surrender jurisdiction of the case, nor by appealing the case to the state circuit court. The question is one of jurisdiction of the subject of the action, and will be determined by the state circuit court on the appeal, whether insisted upon by defendant or not.
    2. No Federal Questions Involved Although Federal Receiver Made Party, When.
    No federal question is involved in an action against a railroad company, in the hands of a federal court receiver (who is also made a party defendant), for the cancellation of certain evidential writings, material to the ultimate rights claimed in the action, which are alleged to have been fraudulently obtained from plaintiff; or, in an action commenced against it, as a purchaser at foreclosure sale, to quiet title, or to declare a forfeiture of the land so purchased, in favor of plaintiff, and which, plaintiff had previously conveyed to another railroad company which, mortgaged it, and which was subsequently sold to defendant company under an order of sale issued by the federal court wherein the foreclosure proceeding was had; it not appearing that the controversies are separable as to the receiver, even though it be assumed that a federal question was involved as to him.
    3. Corporation not Dissolved by Appointment of Receiver Company May Still, be Sued.
    A railroad corporation is not dissolved by the appointment of a receiver, nor does the title to its property vest in him; and while no decree or judgment could operate to disturb his custody or management of the company’s property, yet the company can be sued after his appointment as well as before, and a judgment, as between the parties, would be valid and binding.
    4. Mortgagee Acquires no Greater Rights Than Mortgagor.
    A mortgagee of a railroad company’s property acquires no greater interest therein than that possessed by the company itself; and an order of sale of the premises issued in a foreclosure proceeding is, as a general rule, likewise limited.
    fi. Equity Will Cancel and Reform Release Obtained by Fbaud.
    Generally, equity will refuse relief to a party seeking to rid himself of a contract solely on the ground that its' terms are not what he supposed them to be; but when fraud is charged and proved upon the defendant in reading the contract, or in stating the nature of its terms, relief will he granted, and the instrument reformed. Hence, plaintiff will be relieved from the “release” feature of a document executed by him which is in effect both a receipt for a pass, and a release to a railroad company of its performance of certain conditions assumed by it in a conveyance of real estate, when it appears that an agent of the company came and tendered him a mileage book, remarking that as a part of the receiver’s “red tape” he would ask him to sign a receipt therefor; that plaintiff thereupon stated that he could not read the document without his spectacles, and requested the proprietor of the building, wherein the transaction ’took place, to procure spectacles for him, who, after investigation, stated he could not do so; that upon the agent’s assurance that the document was a receipt, and was all right, he signed it without reading, or being able to read it; that he believed it to be a receipt; that he had never, in fact, agreed to release the company from the conditions of the deed; that the pass so issued was of limited duration, and of comparatively insignificant value; that plaintiff was not aware that a release was claimed by the company until almost four years thereafter; that he had, during said period, asserted a claim against the company under the deed; that on occasions prior to the transaction in question the company, or its receiver, had given plaintiff passes over its line, each time taking a receipt from him; that the passes were given to compensate him for the company’s delay in complying with the requirements of the deeds; and that the release was so presented for signature without previous discussion or agreement as to its terms. All these facts, taken together, show a fraud upon plaintiff, and the “release” clause will be cancelled and the document reformed so as to be in form and substance a mere receipt for the pass.
    dJ. Conditions Subsequent and Covenants Distinguished.
    A provision in a deed of realty to a railroad company to the effect that the conveyance is made and conditioned upon the company locating and maintaining a station and other constructions thereon, and causing all regular trains to stop thereat a reasonable length of time, ,etc., is either a condition subsequent, or a covenant running with the land. If a condition subsequent, it can only be taken advantage of by the grantor and his heirs, as it is not legally assignable either by contract or conveyance; hut if a covenant, it runs with the land and binds the assigns of the original grantee.
    7. Right Created by Condition Subsequent not Affected by Contract to Sell —Conveyance Only Affects Covenants.
    A grantor’s right to take advantage of a condition subsequent is not affected by his executory contract to sell the land, wherein he expressly agreed to transfer the benefit of the condition; nor, if the provision be treated as a covenant running with the land, is his right to take advantage of it affected until be conveys the land, for the benefit of which, it exists.
    8. Whether Provision Creates a Condition Subsequent or Covenant not Decided, When.
    Whether a provision in a deed is a condition subsequent or a covenant is one of intention of the parties, to be ascertained from the entire instrument and circumstances, and not from the technical language used. And where the rights of both parties would be the same in either event, the court will not determine which it is.
    9. Forfeiture the Penalty for Breach of Condition — Equity Never Enforces Forfeitures.
    As the penalty for a breach of a condition in a deed, is forfeiture of the estate, a court of equity will never, by affirmative action, enforce it; but equity will sometimes relieve against it.
    10. Jurisdiction of Equity to Quiet Title — Section 5779 Rev. Stat. Construed.
    Equity entertains jurisdiction of an action to quiet title by a plaintiff in possession because, on account of his possession, he cannot proceed at law against an adverse claimant; and under Sec. 5779 Rev. Stat., a plaintiff out of possession wlio has, or claims, an estate or interest in reversion or remainder, may maintain an action to remove a cloud or quiet title against an adverse claimant. But this statute does not extend to one out of possession who claims the entire estate or a present right of possession merely, as he has an adequate' remedy at law in the form of ejectment.
    11. Remedies for Breach of Covenant.
    An action at law for damages, or, in a proper case, an action in equity for specific performance, are the proper remedies for failure to perform a covenant.
    Appeal from Marion common pleas court.
    Scofield, Durfee & Scofield, for plaintiff.
    McNeal & Sons and Lawrence Maxwell, for defendants:
    Conditions subsequent are never favored in the law, and many excuses may be given for nonperformance. Their performance may be waived by the party for whose benefit they are made; and acts which are inconsistent with the claim of forfeiture are held to be sufficient evidence of such waiver. Andrews v. Senter, 32 Me. 394; Fidelity Ins. Tr. & Safe Dep. Co. v. Fridenberg, 175 Pa. St. 500 [34 Atl. Rep. 848; 52 Am. St. Rep. 851] ; Scovill v. McMahon, 62 Conn. 378 [26 Atl. Rep. 479; •21L. R. A. 58; 36 Am. St. Rep. 350].
    There, is no need of a forfeiture in order to secure the plaintiff’s rights, if he has any, for where a grant of right of way has been made for which a railroad company did not pay, the grantor has his lien for the purchase money.
    What are called conditions in the deed involved, are simply covenants. Hornback v. Railway, 20 Ohio St. 81; Watterson v. Ury, 3 Circ. Dec. 171 (5 R. 347); affirmed Ury v. Watterson, 52 Ohio St. 637 [44 N. E. Rep. 1149].
    The condition is no longer available to tlie plaintiff because he has assigned it; and it is not available to David Rexroth because it can only be taken advantage of by the original grantor, the plaintiff, or his heirs at law. Branch v. Weslyn Cemetery (Dir.), 11 Re. 809 (29 Bull. 398); Nieoll v. Railway, 12 N. Y. 121; Underhill v. Railway, 20 Barb. 455; Hooper v. Cummings, 45 Me. 359.
    Equity will not decree a forfeiture. Adams v. Parnell, 5 Circ. Dee. 190 (11 R. 567); Justice v. Lowe, 26 Ohio St. 372, 375; Cross v. Carson, 8 Blackf. 138 [44 Am. Dec. 742]. Section 5771 Rev. Stat. does not change the above rule.
    Plaintiff has no right to dispute his written release. Champion v. Woods, 79 Cal. 17 [21 Pac. Rep. 534; 12 Am. St. Rep. 126]; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Saunders v. Hatterman, 2 Ired. (N. C.) 32 [37 Am. Dee. 404] ; Mitcbell v. Zimmerman, 4 Tex. 55 [51 Am. Dec.. 717] ; Long v. Warren, 68 N. Y. 426; Slaughter v. Gerson, 80 U. S. (13; Wall.) 379; Lytle v. Bird, 3 Jones (N. C.) 222; Salem India Rubber Co.. v. Adams, 40 Mass. (23 Pick.) 256; Rhoda v. Annis, 75 Me. 17 [46 Am.. Rep. 354] ; Messner v. Smyth, 59 N. H. 41; Leavitt v. Fletcher, 60 N. H. 182; Hawkins v. Hawkins, 50 Cal. 558; McKinney v. Herrick, 66 Iowa. 414 [23 N. B. Rep. 767]; Hallenbeck v. Dewitt, 2 Johns. 404; Fuller v. Insurance Co. 36 Wis. 599; School Committee v. Kesler, 67 N. C. 443; Craig v. Hobbs, 44 Ind. 363; New Albany Ry. v. Fields, 10 Ind. 187; Clem v. Railway, 9 Ind. 488 [68 Am. Dec. 653]; Russell v. Branham, 8 Blackf. 277; Bacon v. Markley, 46 Ind. 116; Seeright v. Fetcher, 6 Blackf. 380; Withington v. Warren, 51 Mass. (10 Mete.) 431; Jackson v. Croy, 12 Johns. 427; Greenfield’s Estate, 14 Pa. St. 489, 497; Gulliher v. Railway, 59 Iowa 416 [13 N. W. Rep. 429]; Rogers v. Place, 29 Ind. 577; May v. Johnson, 3 Ind. 449; Sanger v. Dun, 47 Wis. 615, 620 [3 N. W. Rep. 388; 32 Am. Rep: 789]; Albrecht v. Railway, 87 Wis. 105 [58 N. W. Rep. 72; 41 Am. St. Rep. 30]; Weller’s Appeal, 103 Pa. St. 594; Dellinger v. Gillespie, 118 N. C. 737 [24 S. B. Rep. 538]; Picton v. Graham, 2 Desau. Eq. (S. C.) 592; Campbell v. Yan Houten, 44 Mo. Ápp. 231.
   MOONEY, J.

The petition states'that the railroad company, defendant, is a corporation duly incorporated under the laws of this state, and the defendant Robison is the duly appointed and acting receiver of said company under appointment of the United States district court of the southern district of Ohio, and is under said appointment, in the possession and control of all the property of every kind of said railroad company including the real estate in said petition described; that on April 28, 1893, plaintiff without consideration, by his deed of general warranty of that-date conditionally conveyed to the Sandusky & Columbus Short Line-Railway Company, an Ohio corporation, its successors and assigns, five and ninety-three one hundredths acres of land situate in the township of Grand Prairie in this county and specifically described in the petition; that said deed had incorporated in it this language:

“This covenant is made conditioned upon said The Sandusky & Columbus Short Line Railway Company locating a station, constructing a station house, telegraph office, stock yards, sidings and necessary improvements upon the first described real estate, and maintaining station and said constructions thereon, and causing all regular trains operated upon said railway to be stopped at said station a reasonable length oil time while said railway shall be operated by said The ¡Sandusky and Columbus Short Lipe Railway Company, its successors and assigns, except through passenger and freight trains;-” that said deed was duly recorded and said grantee thereupon entered upon said premises and occupied the same under said deed until the same was sold and conveyed in legal proceedings had in an action pending in the court of common pleas of Crawford county, Ohio, to a committee of the bondholders of said railway company,' and said committee afterwards sold and conveyed the same to defendant railroad company, which company and its receiver, defendant herein, have suc-eeeded to the right and title of the grantee in the first mentioned deed; that the condition of said deed has never been .performed; that defendant railroad company is insolvent; that the receiver has no title to or interest in said land under his appointment, except as receiver; that defendants claim to have been released from all the conditions of said deed by a certain writing or writings now in their possession, but of which they refuse to furnish plaintiff with a copy.

Plaintiff says that about 1897 “defendant railroad company or one of its many receivers recognizing their liability and duty to perform the conditions in said conveyance from plaintiff tendered plaintiff a pass on their said railroad as a temporary solace for their delay in carrying out the said conditions, and when said pass was delivered the agent who handed same to plaintiff requested him to sign a document which he said the red tape of the company required but which was actually an acknowledgment of his receipt of the pass; that plaintiff informed said agent that he did not have his spectacles with him, without which he was unable to read said document, but said agent assured plaintiff that such was the only effect of the document and that he could rely upon the statements of the agent as to its contents being as herein stated, and not otherwise. That thereupon he executed said paper, relying upon the statements of said agent, and if the same contained anything other than a receipt for the said pass, it was a gross fraud upon plaintiff's rights, was obtained from him by false representation and false pretenses and ought to be cancelled and declared void and of no effect.”

The prayer of the petition is that all releases or pretended releases in the possession of defendants be found to be fraudulent and be canceled; that all rights of defendant under said deed of conveyance from plaintiff be declared forfeited and said deed be canceled; that defendants be adjudged to convey the legal title to said lands to plaintiff, and in default thereof that a decree to be entered operate as said conveyance to plaintiff, and that defendants be enjoined from asserting any title to said premises and for all proper relief.

In due time “the defendants, Joseph Robison, as receiver of the Columbus, Sandusky & Hocking Railroad Company and the Columbus, Sandusky & Hocking Railroad Company by Joseph Robison, receiver thereof,” filed a petition for removal to the circuit court of the United States for the northern district of Ohio, western division, and duly filed a proper and sufficient bond for such removal.

The petition for removal states that in an action pending both in the circuit courts of the United States for the northern and southern districts of Ohio, one Samuel M. Felton was duly appointed, as receiver of all the property of the railroad company, defendant, and duly qualified; that Monnett, the plaintiff here, in consideration of an annual pass received from Felton, receiver, released him and said railroad company from the performance of the condition of said deed of conveyance, and that said release is attacked by plaintiff in this action; that after said release was executed Felton resigned as said receiver and defendant Robison was duly appointed in his stead by both said courts, and that the question in dispute, exclusive of interest and costs, involves the sum or value of $2,000 and the suit is one arising under the constitution and laws of the United States.

This petition for removal was dismissed by the court of common pleas. Defendants then moved to dismiss the action upon the ground that the same was commenced without leave first obtained from the courts appointing said receivers or either of them. In support of this motion defendant Robison filed his affidavit stating that “he is in possession of the property described in the petition herein which the plaintiff seeks to recover solely by virtue of said appointment (as receiver) and that he has no relation to or connection with said property otherwise than as as such receiver. ’ ’

This motion was overruled and defendant Robison, as receiver, fiLed his answer containing the statement of four defenses: (1) That the court had no jurisdiction for the reason stated in his motion to dismiss as heretofore recited; (2) denies that defendant railroad company holds said real estate subject to any condition; that it assumed any liability on account of said condition of the original grantee, or that any rights of defendant railroad company under plaintiff’s deed have become or are forfeited; states that the original grantee established a station and constructed stock yards and necessary sidings on said premises and plaintiff never demanded any further compliance with or performance of said condition until after said railroad property, including said premises, were sold by said grantee; (3) that in consideration of an annual pass, plaintiff on September 21, 1897, released said condition -to Felton, receiver; (4) tbat on May 16, 1895, and again on August 30, 1895, plaintiff sold, assigned and transferred to one David Rexroth all Ais rights under or by virtue of said condition.

Plaintiff by reply denies all the averments of the answer and further ■says that defendants repudiated said pass and deprived plaintiff of the, benefits thereof.

The ease was heard and submitted in this case upon the pleadings and the evidence.

Defendants did not urge here any claim based upon the petition to remove, or the motion to dismiss the action. However, they did not lose •or impair their right to insist that the case has been lawfully removed into the federal court by making defense in the common pleas, nor by appealing to this court. Powers v. Railway, 169 U. S. 92, 103 [18 Sup. Ct. Rep. 264; 42 L. Ed. 673]. The question is one of jurisdiction of the subject of the action and is here for determination, whether insisted upon by defendants or not.

Plaintiff’s petition construed in the light of its prayer asserts two claims to relief against defendants: (1) The cancellation of certain writings evidential in their nature and material to the ultimate right claimed in the case, which writings are alleged to have been fraudulently obtained from plaintiff by Felton, receiver. ' (2) To quiet plaintiff’s title or to declare a forfeiture in his favor to certain realty, color of title to which is vested in the defendant railroad company, and the legal custody of which without any other title or interest therein is held by the receiver defendant. The first claim involves no federal question, Gableman v. Railway, 179 U. S. 335, 339 [21 Sup. Ct. Rep. 171; 45 L. Ed. 220]. The second claim involved the title to the property. That title was in the railroad company if not forfeited, and in plaintiff here if it was forfeited. In no point of view was it in the receiver. The appointment of the receiver did not dissolve the corporation. It might be sued afterward as well as before, and while no decree or judgment rendered against the railroad company could operate to disturb the custody of the receiver or his management of the railroad property the ■decree or judgment otherwise and between the parties to the action would be valid and binding. The order of sale in the foreclosure suit in the federal court could not impair this validity.

The title of the railroad company to this realty was of record; the mortgagees acquired their interest with notice; the title of the mortgagees was no greater than the railroad company, the order of sale so far as the pleadings now show was likewise limited. The action then so far as the second claim is concerned and against the railroad company defendant involved no federal question and the controversy does not appear to be separable as to the defendant receiver even though it be assumed that the federal question was involved as to him. The court of common pleas in the first instance had, and this court on appeal now has, jurisdiction of the action, and the petition to remove is denied and the motion to dismiss the action is overruled.

At the trial the evidence was conflicting only as to the circumstances under which the writing of date September 21, 1897, purporting to be a release and satisfaction by plaintiff of the clause in the deed in question, was signed by plaintiff.

Plaintiff gave evidence tending to show that on two occasions prior to the transaction in question the railroad company or its receiver has given him a pass over the line and each time took a receipt for it; that these passes were given to compensate plaintiff for the railroad company’s delay in complying with the requirements of the deed; that on September 21, 1897, Mr. McCune, an agent of the receiver came to him, tendered him a mileage book, remarking that as part of the receiver’s red tape he would ask plaintiff to sign a receipt for it; that plaintiff thereupon stated that he could not read the document without his spectacles and he requested Mr. Weber, in whose restaurant or saloon the transaction took place, to procure spectacles for him and Weber after investigation said he could not; that upon MeCune’s assurance that the receipt was all right he signed the writing without reading or being able to read it; that in signing he believed it to be a receipt merely and that he had never in fact agreed to release said railroad company from any claim he had on account of said deed.

.Defendants’ evidence tended to show that the release was handed to plaintiff at the time without any statement as to its character; that plaintiff looked it over and appeared to be reading it, and after such examination he signed it, without any statement as to spectacles or any request to be supplied with the same; that it was not a mileage book but a pass that was handed to him at the time. Defendants do not deny that other passes had been given to plaintiff before that time and that more receipts were given by the plaintiff for them, and Mr. McCune says that he had no conversation with plaintiff as to an agreement to release, either before or at the time of this transaction, and it is not shown, by defendants that any such agreement to release was ever made by plaintiff with any other person representing either the railroad company or the receiver unless signing the purported lease here in question amounted to such agreement. There is a sharp conflict in the evidence, as to the part of the room at which the signature was written but none that the time was late in the afternoon.

From the issue of former passes, taking receipts1 for the same, the limited duration that the pass issued September 21, 1897, was to run and its comparatively insignificant value, the absence of any prior agreement to release and the absence of any discussion or conversation relating to a release at the time from the tenor of plaintiff’s letter to McCune of date February 18, 1900, from which it appears that then for the first time plaintiff was informed that a release was claimed and from the apparently conceded fact that plaintiff at all times from September 21, 1897, asserted a claim against the company under the provisions of said deed, we are convinced that plaintiff’s contention as to the facts is the very truth in the case. We so find and hold.

We are of opinion that plaintiff’s failure to read the document which he signed will prove no obstacle to the relief which he seeks by way of’ cancellation and reformation. It is true that courts turn a deaf ear to a man who seeks to get rid of a contract solely on the ground that its terms are not what he supposed them to be. But courts will not refuse to listen; on the contrary they will give relief when a plaintiff charges fraud upon the defendant in reading the contract to him or in stating its nature or terms. Foster v. Mackinnon, 4 L. R. C. P. 704; Albany City Savings Inst. v. Burdick, 87 N. Y. 40, reviewing New York cases. Hawkins v. Hawkins, 50 Cal. 558; Schuylkill Co. v. Copley, 67 Pa. St. 386 [5 Am. Rep. 441] ; Linington v. Strong, 111 Ill. 152; Moore v. Brown, 49 Iowa 130; Martindale v. Harris, 26 Ohio St. 379. This would obviously be true of cases in which the complaining party could not read. Kinney v. Ensminger, 87 Ala. 340 [6 So. Rep. 72], or could read only with difficulty, Keller v. Insurance Co. 28 Ind. 170. The presentation of "this release for signature without previous discussion or agreement as to its terms, taken in connection with the previous pass transactions and in the other circumstances of the cases, amounted to a fraud upon, plaintiff.

It is contended by defendants that plaintiff has transferred all his rights under the provisions of the deed in question to one Rexroth before the commencement of this action and that plaintiff cannot maintain this action. The evidence shows that at the date of the deed by plaintiff to the railroad company plaintiff was seized in fee of some 800 acres of land in a body situated near and perhaps surrounding the proposed site of the railroad station. A part of this land he contracted to convey to Rexroth. This contract dated May 16, 1895, among other things provides that Rexroth upon complying with the terms of sale “shall have the .benefit of the contract with the railway company so far as the same cam be legally transferred to him.” On August 30, 1895, the deed of conveyance from plaintiff to Rexroth being executed but not delivered because the consideration was not fully paid, the parties ’ entered into a further contract as to the subject-matter of the conveyance and the use-of the premises until the full payment was made by Rexroth. This contract of August'30, 1895, provides, “the farm scales on the farm are to-go with it to Rexroth and become his property on the delivery of the-deed. (The said scales are located on the railway lands.) The said John T. Monnett hereby assigns and transfers to said David Rexroth, the benefit of his contract with the Columbus & Sandusky Short Line-Railway Company, as fully as the same can be legally transferred by him, all as provided in his written contract of sale of said lands.” .

This contract was not acknowledged and the deed of conveyance to> Rexroth, it seems, contained no reference to the Short Line deed or the provision thereof here in question.

Plaintiff here contends that the provision of the Short Line deed create a condition subsequent. Defendants insist that it creates a covenant merely. We are of opinion that in any view it must be either one- or the other. If now it be a condition subsequent only, the grantor and. his heirs can take advantage of it. It is not legally transferable by the-grantor by contract or conveyance. Schulenberg v. Harriman, 88 U. S. (21 Wall.) 44, 63 [22 L. Ed. 551]; Ruch v. Rock Island, 97 U. S. 693 [24 L. Ed. 1100]; 4 Kent’s Commentaries 127; Co. Litt. 214a; Richardson v. Boynton, 94 Mass. (12 Allen) 138, 141 [90 Am. Dec. 141]. If the provision is a covenant it binds the assigns of the original grantee by its terms and it runs with the land held by the grantor at the time of making the Short Line deed. Avery v. Railway, 106 N. Y. 142, 154,. 155 [12 N. E. Rep. 619]; Post v. Weil, 115 N. Y. 361, 376 [22 N. E. Rep. 145; 5 L. R. A. 122; 12 Am. St. Rep. 809] ; Stillwater Tpk. Co. v. Coover, 25 Ohio St. 558, 560. If, however, it be a covenant in this sense it cannot exist independent of the conveyance of which it forms a part nor antedate the title to benefit which it exists. If then the provision be a condition subsequent the contracts with Rexroth are immaterial because the benefit of the condition was not legally transferable and Monnett agreed to transfer the benefit only if the same was legally possible and to the extent that it was legally possible. If the provision be a covenant then, we assume that it cannot exist in gross, but runs with the land, passing, until released, as an incident upon the conveyance of the land for the benefit of which it exists and the date or transfer of the covenant being necessarily the same as the conveyance of title to the land benefited. Until the deed to Rexroth was delivered, he could have no benefit of the covenant, if it be such, passed to him, not by force of any contract but by virtue of the deed. Hence in this view the contract is also immaterial.

"Whether the provision is in fact a condition or a covenant is, in the absence of a clause of forfeiture or of re-entry, a very difficult question to determine. Under such circumstances the same words may be used to create a condition as to create a covenant. Skinner v. Shepard, 130 Mass. 180. The question is one of intention of the parties, to be ascertained from the entire instrument and the circumstances, and not from technical language used. 4 Kent’s Commentaries 132. Different courts upon language identical or similar have frequently differed in conclusions reached. In view of the difficulty of the question it is therefore a matter of relief to recognize and therefore to hold that in the present case it is-a matter of no consequence whatever whether the language be held to create a covenant or a condition subsequent.

If it is a condition, the penalty for breach would be a forfeiture of the estate. It is elementary that a court of equity will never enforce a forfeiture by its affirmative action. “A court of equity sometimes relieves against forfeitures, but it is not the forum to which to resort to enforce them.” Justice v. Lowe, 26 Ohio St. 372, 375.

In this case it is urged by plaintiff that the Short Line deed should be cancelled, not to enforce a forfeiture, but to quiet title of plaintiff to the lands in question or to remove a cloud from plaintiff’s title. Plaintiff is not in possession of the land described in the Short Line deed. He claims no estate in remainder or reversion in said lands but an entire present estate in fee simple. Equity entertains jurisdiction of an action to quiet title by a plaintiff in possession, because by reason of his possession he "cannot proceed at law against an adverse claimant. For similar reasons our statute gives to a plaintiff out of possession and who has or claims an estate or interest in reversion or remainder, an action to remove a cloud or quiet title against an adverse claimant. Section 5779 Rev. Stat. But this latter provision does not extend to one out of possession who claims the entire estate or a present right of possession merely. Raymond v. Railway, 57 Ohio St. 271 [48 N. E. Rep. 1093].

“As to whether possession by a plaintiff is necessary before he can resort to equity to remove a cloud, there appears to be some conflict of opinion, arising from loose statements of judges, and an overlooking-of the p'rineiples of equity in regard to exercise of its jurisdiction. "Where the estate or interest to be protected is equitable, the jurisdiction should be exercised whether plaintiff is in or out of possession,, for under these circumstances legal remedies are not possible; but when the estate or interest is legal in its nature, the exercise of the jurisdiction depends upon the adequacy of legal remedies. Thus for example, a plaintiff out of possession holding the legal title will be left to his remedy by ejectment under ordinary circumstances.” 3 Pomeroy, Eq. Jurisp. Sec. 1399, note citing cases.

In this case plaintiff’s asserted title to the land, if the provision in the deed be a condition, is a legal estate; to cancel the Short Line deed as a cloud would be to lend the aid of equity to enforce a forfeiture; and if the estate was forfeited a court of law would adjudge it upon the same evidence or even less evidence than would be required in a court of equity to cancel the deed if the case was one proper for that remedy. For all these reasons the remedy at law is adequate and the deed should not be canceled.

If the provision is a covenant, the remedies in the event of failure to perform are, (1) at law for damages, and (2) in a proper case, in equity for specific performance. This is not an action for damages for breach of the covenant and the evidence in the case makes it very clear that the plaintiff neither insists upon nor desires a specific performance of the covenant. Hence, in case the provision be a covenant plaintiff cannot have in this court the one relief and does not desire the other to which in the case he might be entitled.

Upon the whole case we are of the opinion that plaintiff is entitled to have the writing of date September 21, 1897, reformed so as to be in form and substance a mere receipt for the pass then delivered and to have said writing as a release declared null and void and therefore canceled. This relief is ancillary to any proper action at law which plaintiff may see fit to commence. What that action shall be or whether plaintiff has any cause of action this court at this time does not desire to either determine or intimate. All relief prayed for by plaintiff except the reformation and cancellation indicated is denied.

Norris and Day, JJ., concur.


author: McCARTY, J.

text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Summit (8th) Circuit Court,
    April Term, 1904.]
    Hale, Marvin and McCarty, JJ.
    4.Judge McCarty, of tbe Fifth Circuit, sitting in place of Judge Winch, of tha Eighth Circuit.)
    Diamond Rubber Co. v. Addison H. McClurg.
    i. Master not Bound to Instruct Servant Against Unprecedented and Unforeseen Occurrences.
    ' The master is not guilty of negligence in failing to instruct his servant 'to avoid injuries that have never occurred before, and which the former never heard of or had any right to anticipate would happen. He is only bound to anticipate and guard the servant against those injuries that are likely to occur.
    3. Master not Liable for Injuries When Servant Purposely Violated Instructions.
    A servant who proceeds to operate machinery in direct violation of his master’s instructions, and with full knowledge of the danger attending such violation, cannot recover damages from the master for injuries which result solely by reason thereof; a fortiori when the danger was obvious and could easily have been avoided by the servant without instructions in reference thereto. ,
    Error to Summit common pleas court.
    E. K. Wilcox, for plaintiff in error.
    George M. Anderson, for defendant in error.
   McCARTY, J.

This cause comes into this court on petition in error to’reverse tbe judgment of tbe common pleas court in wbat is called a personal injury case. The action was tried below to a jury, a verdict in favor of tbe plaintiff was rendered, and motion for a new trial overruled and exceptions taken.

Plaintiff states bis cause of action in his petition as follows:

“Tbe defendant is a corporation incorporated under tbe laws of Ohio.
“On February 7, 1901, tbe defendant .owned and operated certain manufacturing shops for the purpose of making rubber, which shops are situated in Akron, said Summit county, and have ever since and still operate said shops.
“On February 17, 1901, the defendant employed plaintiff to work in said shops, and plaintiff pursuant to said employment, to wit, on February 7, 1901, commenced and continued to wbrk from said day up to February 21 of said year.
“That on February 7, the defendant through one of its foremen of said shops ordered plaintiff to work in that part of its said shops known as the mill room at a machine designated as a mixing mill for the purpose of mixing rubber, and making rubber.
“That there are twd large steel rollers on the mill placed side by-side about four feet from the floor, which rollers are about five feet in length, and about twelve or fifteen inches in diameter, and when said mill was in operation said rollers revolve together at a rapid rate of speed; in operating this mill it was necessary for workmen and this plaintiff to stand in front of said rollers and place the rubber on said rollers, so as to run it through until properly mixed into slabs; and when the edges of said slabs were uneven and ragged it was necessary, and the duty of the workmen and plaintiff, to place said slabs on said rollers so-that it would double said ragged edges back and- pass through so as to-even up said edges, which work was very hazardous and attended with great danger to the person operating said mill; and when said slab is placed upon said rollers as aforesaid it is liable in doubling, in the ordinary operation of said machine, to catch the hands of the person operating the same and draw them in between said rollers.
“That to operate said mill or machine so as to avoid said dangers and to protect the operator from injury, required great experience and skill as to the proper mode of operating the same, as well as a knowledge of the dangers that existed, and the injuries to the operator that might, and were liable to occur, all of which was unknown to the plaintiff, but defendant had full knowledge thereof, and well knew that the plaintiff' did not know, and could not learn and discover in time to protect himself from injury.
“That at the time herein mentioned the plaintiff was inexperienced in any kind of shop work, and had no knowledge or experience whatever in the opération of said mill or doing the work thereon aforesaid, and had no knowledge of the hazards and dangers attending the operation of said mill, nor had he equal means with the said defendant of knowing or ascertaining said hazards and dangers; that said hazards and dangers in the operation of said machine were not obvious; that it could only be known from skill and experience in the operation thereof, and as to the proper way to operate said machine to protect one from injury that might arise from said dangers, all of which was well known to said defendant and its said foreman. And plaintiff says that the labor performed by him as aforesaid, and as hereinafter described was done under the immediate direction and supervision of said foreman, and it was the duty of the defendant and it® said foreman before directing tbe plaintiff to work upon and operate said machine to instruct him as to the manner of performing said labor,, so as to protect himself against injury and avoid the said dangers incident thereto, and to caution and warn him of the dangers to which he: was subjected in the performance of said work; but negligently and in. disregard of its said duty towards plaintiff, said defendant, and its said foreman, wholly failed and neglected to so instruct the plaintiff in the-premises, or caution or warn him of the dangers incident thereto.
“That on February 21, 1901, while working at said mill in mixing rubber, and making a rubber slab about two feet square, it became necessary by reason of the ragged edges of said rubber slab for him to-place said slab on the- top of said rollers as aforesaid; and for the purpose aforesaid he did place it on top of said rollers while they were rapidly revolving, and put his left hand on said rubber pressing it against the roller at the side next to him, to prevent it from slipping, and so that the said rollers would catch it and double it; and. said rollers did eatch it, and when it doubled the end farthest from him, the opposing roller was thrown over onto his said hand with great force instantly drawing it between said rollers and so mangling it that it necessarily had to be, and was amputated at the wrist joint; that he suffered greatly in body and mind from said injury, and was for a long time sick, and is forever disabled from performing manual labor, and is permanently injured, all of which suffering and injury was directly caused by the carelessness and negligence of the defendant aforesaid, and without any fault or negligence on the part of plaintiff, to his damage in the sum of $20,000, for which sum he asks judgment against the defendant.”

Defendant for its answer says, that it admits that it was and is a corporation duly organized and existing under and by virtue of the laws of the state of Ohio, and at all times mentioned in said petition it was engaged in the manufacture of rubber and rubber goods in the city of Akron, said county and state. It admits that on February 21, 1901, and for a time prior thereto, the plaintiff was in its employ and was engaged in operating a certain machine designed for the -mixing- and making of rubber sheets or slabs. It admits that on February 21, 1901, .the plaintiff sustained certain bodily injuries on account of which his left hand was amputated at or near the wrist, but it avers that said injuries were caused by the inadvertence, inattention, carelessness and negligence of the plaintiff himsel-f, and not by reason of any default, carelessness or negligence on the part of the defendant company. And further answering defendant denies each and every statement, allegation .and averment in said petition contained, not herein specifically admitted or denied, and having fully answered prays to' be dismissed with its costs.

To that answer a reply has been interposed which denies the statements and allegations contained in the said answer, except such as are admissions of the allegations and statements contained in the plaintiff’s petition filed herein.

Upon these pleadings the 'case was tried to a jury, and, as I have said, a verdict was rendered in favor of the plaintiff.

The facts in the case are as follows:

There were in this machine two large steel rollers placed side by side; they are about five feet in length and twelve to fifteen inches in diameter, and when in operation said rollers revolve together, that is, rtoward each other, at ten to fifteen revolutions per minute. In operating this mill it was necessary for the plaintiff to stand in front of the rollers and place the rubber on said rollers so as to run it through until ■properly mixed and pressed; that on February 21, 1901, the injury of which complaint is made, occurred causing the loss of the plaintiff’s left hand. It is claimed that the plaintiff was inexperienced in such work as this, and that the foreman neglected to instruct him in the proper way to perform this work so as to avoid the dangers incident thereto. The contention of the plaintiff in error is that the dangers were obvious, and that the plaintiff below had been fully instructed as to how to do his work safely, and that if he had followed these instructions he would not have been injured.

He was instructed as shown by the record as follows:

(Q. “What was this other man doing you speak of?” A. “He was a mill man working on the mill.” .

Q. “Working on the mill?” A. “Yes, sir.”

Q. “What did he say to you in the way of operating the mill?” A. “He showed me, he done most of the work.”

Q. “Tell what he said and done?” A. “He would tell me to cut the rubber off when it would stick and to throw the compound in and pour oil in.”

Q. “Was anything further than that said to you before you commenced the'handling of the mill yourself?” A. “I was told not to put my hand up where the rolls begin to go downward, keep my hands <down where they were coming up.”

' Q. “Who told you that?” A. “This man that I worked with, and also the boss.”

Q. “Who was the boss?” A. “Noonan.”

Q. “State what Noonan said to you on that subject, about the operating of the mill?” A. “Well, be said it was a dangerous machine and to be careful.”

Q. “What further did he say?” A. “And not let my hands get so they would go down over, keep them at a certain point on the mill.”

Q. “Was there any other foreman there while you were at work.” A. “Foreman?”

Q. “Of those mills, that were there specially?” A. “A man by the name of Oberdoerster that I worked under when I commenced at night work. ’ ’

Q. “What talk did you have with him on the subject of operating the mill?” A. “Well, he told me about the same as Mr. Noonan.”

Q. “Go on and tell what was said?” A. “He told me to feed the rubber in certain batches, not put my hands over where the roller turned in, and when I was cutting off, if the rubber was going to catch me, to let the knife go in if it was necessary and keep my hands off of the top of the rollers in working. ’ ’

On cross-examination he said in answer to the questions:

Q. “And all three of these men, Mr. Noonan, Mr. Oberdoerster and Mr. Hazard, told you where to put your hands and where not to put them?” A. “Yes, sir.”

Q. “And they all told you not to put your hands above the top of the rollers?” A. “Yes, sir.”

Q. “Calling your attention, Mr. McCIurg, to your statement that Mr. Hazard, or the man with whom you worked when you first began there, that he instructed you or told you not to put your hands on top of the rolls, did he give you any reason why you should not put your hands on top of the rolls?” A. “Why, he said the rolls were turning inward that way, that they were liable to catch my hands. ’ ’

Q. “Danger of catching your hands?” A. “Yes, sir.”

Q. “Now, at the time you was injured you may state to the jury what you was doing at that time, at the time you was injured?” A, “Well, I was just finishing up ready to quit, it was just before the whistle blowed a little while, and I had my last batch on finishing up ; it was ragged and I wanted to make it even and nice; I picked it up and throwed it in the mill and it slid and didn’t go in and went clear over the other side; I put my left hand in, and it bounded, and when it bounded it struck my wrist and arm and dragged it in before I could put it back. ’ ’

That is a direct violation of his instructions; if he had followed his instructions and kept his hands above the rollers he would not have been injured. He could as easily have kept his hand out, kept it above the rollers as to have kept it from going further down. Such an injury ■never happened before. The company was not bound to anticipate or guard against it. It is not negligence on the part of the master to fail to instruct an employe to avoid an injury which the master had no right to anticipate would happen.

It is only as to injuries that are likely to occur, not those that never did occur, that the master never heard of, that he is bound to anticipate and bound to guard his employes against. The plaintiff below clearly brought this injury on himself. The danger was obvious. He needed no instructions to keep his hands from between those rollers, and if he did he was fully warned of all the dangers, fully instructed as to how to operate the mill and avoid being caught. He disregarded his instructions, and on no principle of law or right can he recover. Wolsey v. Railway, 33 O. S. 227. The judgment of the court below will be reversed with costs, and exceptions noted. .

Hale and Marvin, JJ., concur.


author: SWING, j.

text:
    DAMAGES — RAILROADS—VERDICTS.
    [Hamilton (1st) Circuit Court,
    February, 1904.]
    Giffen, Jelke and Swing, JJ.
    Cincinnati Connecting Belt Ry. v. William Burski.
    1. Damages from Ordinary Operation or Steam Railroad Damnum Absque In-juria, When.
    A steam railroad company which occupies its own private right of way, and has constructed thereon its road in a proper and reasonable manner, is not liable for damages naturally resulting to adjoining improved property from the noises, smoke, cinders and jarring arising from the ordinary-operation of its trains. Such damages are damnum absque injuria.

    2. Verdict and Judgment Must be Based on Issue' Raised by Pleadings.
    A verdict and judgment for damages based upon a cause of action not made an issue by the pleadings, and which is supported by evidence which is Incidental only to the cause of action pleaded, will be reversed.
    ERROR to Hamilton common pleas court.
    , Hollister & Hollister and Walter A. DeCamp, for plaintiff in error.
    A. H. Bode and W.. W. Pease, for defendant in error.
   SWING, j.

William Burski and wife brought an action in the court of common pleas against the Cincinnati Connecting Belt Bailroad Company for damages.

The gist of the action is thus set out in the petition. The Cincinnati -Connecting Belt Railroad Company has constructed a railroad upon piling, a trestle very near his house, and by reason of this construction .and the operating of the railroad by reason of the smoke and cinders from the engine, the danger from sparks, the noise of the trains and the .jarring of the house caused by said trains, makes their home uninhabitable and untenantable, and deprives them of the comfort and enjoyment of their property.

The defendant railroad company filed an answer setting up that they had built the railroad in question on their own property and denying all other allegations.

The case went to trial and the jury rendered a verdict for $500 and judgment was rendered by the court for. the amount of the verdict. 'This action is brought in this court to reverse this judgment.

The evidence is to the effect that the operation of the railroad has •seriously damaged the property of Burski. The noise, cinders, smoke •and jarring caused by the running of trains in front and near Burski’s house has naturally caused great damage, and as to such damage the verdict of the jury is abundantly sustained by the evidence.

One item of the evidence that was produced at the trial was to the •effect that the railroad company had constructed near Burski’s residence •a chute and side track, where coal was stored and dumped into wagons, -and that when the coal was being dumped and the wind was blowing from that direction, coal dust was blown into and on the plaintiff’s premises to such an extent as to cause great damage to plaintiff’s property. This is not alleged in the petition as a ground for damages, but this evidence appears to have been incidental only to the cause as alleged in the petition, and the ease does seem to have been tried on this as an issue. So that the verdict cannot be sustained on this evidence alone under the state of the pleadings and the issue as actually tried.

The second proposition of the syllabus in the case of Parrot v. Railway, 10 Ohio St. 624, 625, is as follows:

“That in respect to the noises, smoke, vapor, or other discomforts ■arising from the ordinary use of the railroad by the company, the occupant and owner of such lot and dwelling house has no more right to recover damages of the company than any citizen who resides, or may have occasion to pass, so near the street and railroad as to be subjected to like discomforts. That a railroad authorized by law, and lawfully •operated, can not be deemed a private nuisance. ’ ’

Under the facts in this case which arose in 1852, there was no right •of recovery from a railroad company while occupying a public street; tbis principle of the law as to public streets has been changed by Sec. 3283 Rev. Stat., which was passed in 1857, but except as to streets, it is the law in Ohio today. And not only is it'-the law in this state, but in all the states so far as we have been able to investigate.

This principle is recognized as the law, in the case of Balt. & P. Ry. v. Fifth Baptist Church, 108 U. S. 317 [2 Sup. Ct. Rep. 719; 27 L. Ed. 739, 744], which is relied on by the defendants in error in this case. On page 331, Justice Field says:

“Undoubtedly, a railway over the public highways of the district, including the streets, of the city of Washington, may be authorized by congress, and if when used, with reasonable care it produces only that incidental inconvenience which unavoidably follows the additional occupation of the streets by its cars with the noises and disturbances necessarily attending their use, no one can complain that he is incommoded. Whatever consequential annoyance may necessarily follow from the running of cars on the road with reasonable care is damnun absque injuria. The private inconvenience in such case must be suffered for the public accommodation.
“But the case at bar is not of that nature. It is a case of the use by the railroad company of its property in such an unreasonable way as to disturb and annoy the plaintiff.”

In this case there is no allegation that the railroad company had constructed or has operated its road in an unreasonable way, nor is: there any evidence, other than that in regard to the side track and coal chute above referred to, which tends to show an improper and unreasonable construction and operation of its road.

What Burski may be able to' show under proper allegations as to the construction of this coal chute and side track near his house, we cannot say, but under the pleadings and evidence as presented in this record, we feel bound to hold that the judgment is not sustained by the evidence, and the judgment is therefore reversed and cause remanded for further ■ proceedings.

Giffien and Jeike, JJ., concur.