text:
    EMPLOYER’S DUTY AS TO SAFETY OF PLACE TO WORK.
    Circuit Court of Cuyahoga County.
    The L. S. & M. S. Railway Co. v. Martha Latto, Administratrix.
    Decided, December 17, 1909.

      Misconduct of Counsel — Comment on Matters Not in Evidence — Negligence — Duty of Employer — Charge.
    1. ^Misconduct of counsel in commenting upon matters not in evidence, without admonition of the court or retraction by counsel, is reversible error.
    2. In an action for wrongful death it is error to charge the jury that it is the duty of the employer to furnish a safe place to work and suitable tools for carrying .on the work. Ordinary care is the measure of this duty.

      Cook, McGowan & Foote, for plaintiff in error.

      T. 8. Dunlap and Harry Payer, contra.
    ITenry, J.; Winch, J., and Marvin, J., concur.
   In this action for wrongful death, the sole issue below was upon the alleged negligence of the defendant company, which is plaintiff in error here. The death was caused by the explosion of the mud-drum of a horizontal tubular steam boiler.

This mud-drum was a sediment tank, located near the ground at one end of the boiler proper, and suspended from the headers by means of a series of nipples, or short tubes, about five inches long and four and a half inches in diameter. All these parts were, when in use, subjected internally to the full steam pressure of the boiler itself.

About a fortnight before the accident, a leak was discovered at one or more of the nipples, and the entire series was replaced.

The mud-drum was blocked up and each nipple when fitted into its proper place, was rolled into snug union with both the header above and the mud-drum seat below by means of a dudgeon roller inserted therein from the top. A manhole in the header afforded access for this purpose.

The dudgeon roller is a hollow cylindrical steel capsule with three pockets, each of which contains a small, solid steel roll attached. These rolls may be made to partially protrude through apertures in the side of the tool by driving vertically through it a tapering pin, which, coming into contact with the rolls through corresponding interior apertures, drives them apart. The three rolls are thus brought to bear forcibly against the interior surface of the tube into which the tool is inserted, and when the pin is turned by means of the handlever attached to its top by a toggle joint, the rolls are revolved by the friction so as to produce a slight expansion of the tube at the plane or place of contact.

The tool has a collar at the top which rests on the upper edge of the tube, and by proper adjustment the rolls can be brought to bear at any desired level within the tube. When in use, the small rolls are necessarily tilted outward at the top by the taper of the pin which separates them.

The expansion produced by them is therefore greatest at the top, and when adjusted with their upper edges exactly opposite the plane of contact between the nipple and its seat, a steam proof union can be made. If adjusted a trifle higher, a steam proof union with slight shoulder above it can be rolled in a single operation. But, because of the tilt of the rolls when in use, a steam proof union with a shoulder below it, requires two adjustments, one with the upper edges of the rools exactly opposite the union, and another immediately below it. If, however, the rolls instead of being cylindrical are in the form of a cone frustum, the slant of which offsets the taper of the pin, the opposite result may be produced. The shoulders, if any, in these nipples should of course have been above the upper union, and below the lower one, for greater security in keeping the nipples from detachment under pressure of the steam within. To produce such shoulders by means of an expanding tool having cylindrical rolls, as already shown, three adjustments were necessary, one at the top and two at the bottom.

In this case the roller was of this sort, but only two adjustments were made in rolling each nipple. The workman who used it was but slightly experienced in this particular kind of work. The hydrostatic test applied to the boiler when the job was done, and the fortnight’s use of it, prior to the explosion, showed that he had indeed rolled steam tight unions; but there were no shoulders in the nipples below the mud-drum seat, for none could have resulted from his manner of doing the work. Right there is where the rupture apparently originated, most of the nipples being detached from the mud-drum.

Expert evidence offered by the defendant indicates that the nipples should have held without the aid of any shoulder and a latent flaw in the casting of the iron mud-drum is suggested as a possible alternative explanation of the explosion. But we think that the jury were warranted in finding, as the most probable cause, • a negligent failure to roll shoulders in the nipple just below the mud-drum seat.

2. We have carefully examined the assignments relating to the amount of the verdict and the admission and rejection of testimony, and we find no error in those respects.

■ 3. Misconduct of counsel for plaintiff in argument to the jury and otherwise is also assigned as error. There was strong and apparently indefensible provocation for most of the misconduct complained of. But the following excerpt from the bill of exceptions, pages 469, 470, can not thus be passed over:

“Have they tried to conceal anything from you? Have they objected when testimony was being elicited from witnesses on the stand ? Had they offered testimony in those two books, we couldn’t have'done it.
“Mr. Foote : Let the record show that at this point counsel, holds up two ‘locomotive’ books with the statement that the defondant excluded the evidence from those books, and the inference which counsel seeks to draw from them, and that counsel for defendant objects and excepts to that kind of talk, and asks the court to rule on it.
“Mr. Payer: You may let the record show, for I desire to have it appear in the record, that when you offered the testimony from these books and read it into the record you had those identical books in your hand and offered certain pages from them. You offered in .the issue of 1906 and 1907 from page 164 and from page 114 from the issue of 1881. I can not show you what is in the books, gentlemen, because if I did there would be an exception—
“Mr, Foote: I except to these remarks of counsel.
“Mr. Payer: Not like the one he is making now, for they don’t count for anything, but if I would show you what is in these books, they would take an exception, and that would be error, and I haven’t any right to show you what is in them.
“Mr. Foote: I except to that kind of talk, as to what is in these boobs.
“Mr. Payer: You will remember this one thing, gentlemen, that he has taken the books and extracted from them certain things that he has dictated to the stenographer, given you certain details of tests, and that he has given you nothing else from the books; that he has submitted those propositions to you just as he has submitted to you the testimony of Mr. Woodward and the other witnesses by picking out for you the passages that might be misleading and omitting all the rest, and the gentleman says he is fair. ’ ’

In thus commenting upon what was not in evidence there was misconduct of counsel, which, when objected to, should have been, but was not, rebuked by the court. This we hold is reversible error. See Hayes v. Smith, 62 O. S., 162, wherein the seventh paragraph of syllabus is:

‘ ‘ For counsel, in the course of argument to the jury, to charge the opposite party with deliberate purpose and effort to suppress the truth, and with having hired an attorney for that purpose, without justification in the evidence, or to state or assume facts matters which are not in evidence or to comment on testimony which has been ruled out, is an abuse of privilege, and which is misconduct .for which a new trial should be granted, ’ ’

4. In the charge of the court, at page 478 of the bill of exceptions occurs this language:

‘ ‘ It is the duty of the defendant company in this ease to provide a suitable and reasonably safe place for its workmen to work, and in providing that suitable and ordinarily safe place,, they must exercise ordinary prudence, such prudence as people of ordinary discretion and prudence would exercise under like circumstances. They must provide suitable tools for the carrying out of the work that is to be accomplished. They must provide a reasonably safe place for its laboring men, its employes to work.”

Ordinary care is the measure of the duty. Failing thus to qualify all the language used here as to the employer^ duty, was error. C. H. & D. Ry. Co. v. Frye, 80 Ohio St.. 289; and see also Von Quiram v. Cleveland City Ry. Co., 54 Bull., 472.

For these errors the judgment is reversed and the cause remanded.


source: Caselaw Access Project

license: Public Domain

text:
    SURETY WITH “INTEREST IN CONTROVERSY ADVERSE TO PLAINTIFF.”
    Circuit Court of Cuyahoga County.
    The General Construction Co. v. Village of Lakewood.
    Decided, January 17, 1910.

      Suit Against Surety — Principal May he Let In to Defend — May Set up Counter-Claim — May Litigate Same Notwithstanding Plaintiff Dismisses Petition — Contract Attached to Pleading Can Not he Considered on Demurrer.

    1. Because a judgment against a surety binds the principal having notice of the pending action, and payment thereof by the former may be recouped from the latter, in a suit against the surety alone, the ' principal has “an interest in the controversy adverse to the plaintiff,” and may therefore become a party defendant.-
    2. Having so become a party defendant, the principal’s answer may contain not only a denial or other strictly defensive matter, but a counter-claim against the plaintiff, and the plaintiff can not thereafter, by dismissing his action, prevent the principal from litigating its counter-claim.
    3. When a contract attached to a pleading is not made a part of it, it can not, on demurrer, be looked to as varying the allegations with respect to the contract set up in the pleading proper.

      Thompson & Mine, for plaintiff in error.

      E. H. J. Hobday and Stearns, Chamberlain ¡& Boyan, contra.
    Henry, J.; Winch, J., concurs; Marvin, J., not sitting.
   By this proceeding in error the General Construction Company seeks a reversal of the judgment of the court of common pleas dismissing its answer and cross-petition.

The action below was commenced by. the village of Lakewood against Thomas H. Garland & Sons and the Fidelity & Deposit Company to recover upon a cohtractor’s bond. Thomas H. Garland & Sons were the original contractors, but with the acquiescence of all parties their contract had been assigned to and assumed by the General Construction Company, plaintiff in error here. The latter was not made a party to the original action,. although the petition discloses its interest in the controversy. This practice accords with the provision of Section 5009, Revised Statutes of Ohio, that: • “ One or more of the persons severally liable on an instrument may be included in the same action thereon.”

Afterwards the General Construction Company, of its own motion, intervened by leave of court, and becoming a new party defendant filed its answer and cross-petition, wherein it prayed for affirmative relief in damages against the village of Lakewood for alleged breach of the same contract. This practice is authorized by Section 5006, Revised Statutes, which provides that:

"Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who.is a necessary party to a complete determination or settlement of the question involved therein.”

It is elementary that a judgment against a surety binds the principal having notice of the pending action, and payment thereof by the former may be recouped from the latter. So that in a suit against the surety alone the principal clearly has “an interest in the controversy adverse to the plaintiff,” and may therefore become a party defendant.

Having once become a defendant the principal’s answer, under favor of Section 5066, may not only contain a denial or other strictly defensive matter, but also may plead such counter-claim as “a cause of action existing in favor of a defendant and against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.” The principles of set-off are also applicable to this situation, so that, as held in Wagner v. Stocking et al, 22 Ohio St., 297, “in an action on a joint debt against principal and surety" a demand due from the plaintiff to the principal, under the provisions of the code, may be set off against the claim of the plaintiff.”

In the case before us, however, when it appeared upon the trial that the plaintiff must fail in its action to recover on the contractor’s bond, tbe General Construction Company’s answer and cross-petition was, on motion of the plaintiff, without opportunity being given to it to introduce testimony in support of its counter-claims, dismissed, and this ruling is the error complained of here.

On the other hand it is claimed that the General Construction Company, if it had any right whatever to intervene and become a defendant in the ease, clearly had no right to remain in it for any purpose after its occasion for defending against the recovery of a judgment against its surety had ceased. That there are some limitations to the right to make additional defendants in eases of this sort appears from Wilkins v. Ohio National Bank, 31 Ohio St., 565, the syllabus of which is:

“Where the holder of a joint and several obligation elects to sue one of the obligors who is only a surety thereon, it is not competent for the defendant by cross-petition or otherwise, to bring in his principal for the purpose of having the relation of principal and surety certified under Section 449, of the code, although the holder knew that such relation existed.”

So also in Hillier et al v. Stewart et al, 26 Ohio St., 652, it was held that:

“In an action on a promissory note by the holder against the maker it is irregular and improper for the court to let in a new party on his own motion and that against the objection of the plaintiff, with leave to file an answer and cross-petition to contest the tona fides of the plaintiff’s title to the note and to assert therein an equity of the cross-petitioner derived through the plaintiff’s assignor, who is also a necessary party to the determination of the case made in the cross-petition. Such relief should be sought by an original petition.”

It is very evident from the former of these cases that-the right of the plaintiff under Section 5009 to pursue the surety alone if he so elects, can not be impaired by permitting the latter, under Section 5006, to bring in his principal in order to have their mutual rights and obligations determined.

From the second of these authorities it is manifest also that no one can intervene in an action for the mere purpose of asserting an affirmative cause of action against the plaintiff. In either of these eases the relief sought must be by an independent action. But neither of these cases goes so far as to hold that where an intervenor must interpose his defense to the plaintiff’s claim in the pending action or else run the risk of having an ultimate liability irrevocably fixed upon him, he is nevertheless denied the right to become a party defendant upon his own motion. Neither do they hold that when he has properly become a party defendant his rights are any less than those of a defendant who was made such originally by the plaintiff himself.

We therefore hold that the General Construction Company was properly allowed to become a party to the action below and that its answer and cross-petition was, unless demurrable, improperly dismissed. It is said, however, that it- fails to state facts sufficient to constitute a cause of action. The argument in support of this contention necessarily takes account of the terms of the written contract between the parties which is attached as an exhibit to the petition, and which the General Construction Company’s answer admits to be so attached. The contract is not however made a part of either pleading, by reference' or otherwise. We can not, therefore, take it into account in passing upon this question.

As the contract is pleaded in the answer and cross-petition in substance, and in accordance with the pleader’s interpretation thereof, it affords no basis for the construction for which counsel for the village of Lakewood have argued. Upon its face the answer and cross-petition is not demurrable.

A further objection to the entertaining of the petition in error here is based upon the proposition that some parties to the record in the court of common pleas are not made parties to this proceeding in error.’

But in Roberts v. Roberts, 61 Ohio St., 96, it is held upon a state, of the record like that which we have here that:

“In such petition in error it is sufficient if all the parties in interest in the judgment sought to be reversed are made parties. When nothing is claimed for or against a party in the pleadings, and nothing is adjudged for or against him in the judgment, it is not error- to omit such party from proceedings in error. ’ ’

It is also objected that there is no bill of exceptions here and that the error complained of is not reviewable without the evidence. We have, it is true, repeatedly held that a bill of exceptions exhibiting all the evidence is necessary to enable us to review the correctness of a ruling or rulings by the trial court directing a verdict or judgment for the defendant at the close of the plaintiff’s evidence. The ease here is very different. The transcript shows that the answer and cross-petition of the plaintiff in error was dismissed without any opportunity being given to introduce evidence in support of it. No conceivable state of the evidence that had already been offered in behalf of the village of Lakewood could authorize the court to direct a judgment in its favor upon the answer and cross-petition of the General Construction Company before the latter had had a chance to maintain its claim by its introduction of evidence, hence no resort to the evidence in this case is necessary, and no bill of exceptions is required to exhibit the error complained of.

For error in dismissing the answer - and cross-petition of the plaintiff in error the judgment is reversed and the cause remanded.


text:
    INNKEEPER’S LIABILITY FOR. PROPERTY STOLEN BY AN EMPLOYE.
    Circuit Court of Cuyahoga County.
    Alfred Aloe v. E. Fuller.
    Decided, January 17, 1910.

      Hotel Keeper’s Liability for Theft by Employe — Employe Must be Engaged in Master’s Business — Quest, Not Boarder.

    One who has property stolen from him in a hotel by an employe of the proprietor of the hotel, in order to recover in an action against the proprietor must show, either that the dishonest employe stole when engaged in his master’s business, or that he sustained the relation of guest and not of hoarder to the hotel.

      Riley & McQuigg, for plaintiff in error.

      Solders, Thcuyer Mansfield, contra.

      ITenry, J.; Winch, J., concurs; Marvin, J., not sitting.
   The parties to this proceeding in error stand as they stood below, where a verdict and judgment for the defendant was directed at the close of the plaintiff’s evidence. The plaintiff is a captain in the regular army, and came to Cleveland on recruiting service, the duties of which commonly occupy a period of two years at a single post. He sought and obtained accommodations for himself and family, consisting of several persons, at the Garfield Apartment Hotel, at the rate of $72 a month for his lodgings and $21 per week per person for meals. After having remained there some months he and his family had occasion to go to Chicago for about a week and locking the door of their apartment, they entrusted the key, before leaving, to the night watchman, who was the person on duty in the office that night. Upon returning they found that an employe of the defendant (who was the proprietor of the house), had broken into their lodgings and stolen personal property valued at over $200, During their absence in Chicago they paid at the regular rate for both board and lodgings precisely as if they had been present. The family stayed in the hotel some months longer, having during all this time no other home than the apartment hotel aforesaid. Their household goods were there, and there they lived, though it does not appear what their contract provided, if anything, upon the subject of the duration of their stay, or of the termination of their obligation to pay for their board and lodgings in case of their leaving permanently at any time, in the middle of a month or week, as the case might be.

The action below was brought to recover the value of the goods stolen. The petition counts solely upon the relation of innkeeper and guest. It is_true that it alleges that the theft was committed by one of the defendant’s employes, but it fails to state what the scope of the employe’s duty was, and for aught that appears it may have been totally foreign to the time and place of the theft. s It must of course appear that the wrongful conduct of an employe was while he was upon his master’s business, in order to enable any third person who is injured by such wrongful conduct to claim indemnity from the employer upon the doctrine of respondeat superior.

The relation of innkeeper and gnest is, however, properly set forth in the petition and the evidence, which is brought up by bill of exceptions, discloses facts sufficient to warrant the inference that the proprietor of the Q-arfield Apartment Hotel was an innkeeper. The real difficulty hinges upon the question whether Captain Aloe and his family were guests or merely boarders.

In the only parallel case that was cited to us on behalf of the plaintiff in error, to-wit, the case of General Hancock, in 48 American Reports, 112, a recovery for his loss was allowed upon the theory that he was a guest, because his contract authorized his permanent departure at any time, although, in fact, he remained for a long period of time as a guest of the inn or hotel where he-stopped.

In the present case some attempt was made to introduce a section of the United States army regulations in order to show the necessarily uncertain and transient character of Captain Aloe’s residence at any post of duty. This evidence was excluded, and probably upon the correct theory that the defendant could not be bound by an army regulation of which, so far as appears, he-had no notice whatever, and in any event, the regulation so denied introduction in evidence is not set forth in the bill of exceptions, and we are unable to say what it might have disclosed. At most, its sole possible bearing would be as to the terms of the contract between the parties, if those terms were implied instead of being expressed. As it is, we have searched the record in vain for an indication as to the contract’s provisions, if any, either express or implied, relating to its duration. The house was of a character to accommodate both guests and boarders. Captain Aloe’s relations to the house, so far as disclosed- are compatible with either relation, but whether he was a guest or boarder, we can not decide. The burden was upon him to establish the allegations of his petition in that behalf; it was incumbent upon him to show affirmatively that the terms of his contract were such as to constitute him a guest and not a boarder. Having failed so to do he was not entitled to go to the jury, and the court below was warranted in directing a verdict for the defendant.

Tbe suggestion was made to us upon the hearing that the defendant in error is dead, and until the name of his personal representative is supplied to us, we shall necessarily defer entering the judgment of affirmance.


text:
    ACTION FOR. MALPRACTICE.
    Circuit Court of Cuyahoga County.
    Clifton D. Ellis v. Charles R. Twiggs.
    Decided, January 17, 1910.

      Wrongful Death — Malpractice—Discretionary Courses of Treatment— Question for Jury — Substantial Damage Upon Showing of Relationship to Deceased — Interrogatories—Expert Evidence — Comment on Same by Court.

    1. While an action for .malpractice can not he successfully founded upon a claim that the physician has taken one of two discretionary courses, concerning the relative propriety of which doctors disagree, yet when the propriety of the course actually taken is challenged, the question is one for the jury to determine as to whether the course taken was improper, so as to manifest want of ordinary skill and care, or whether its propriety is, under the evidence, a discretionary question.
    2. In an action for wrongful death it is unnecessary to show more than that the deceased hore the relation of wife and mother to the persons for whose interest the action is brought, in order to authorize substantial, as distinguished from nominal damages.
    3. Interrogatories must be directed to the ascertainment of the jury’s mind concerning facts in issue; not merely ultimate facts, but determinative facts. It is sufficient if they are of such a nature as that the answer to them, when deliberated upon and returned by the jury, shall tend to test the correctness of the general verdict.
    4. It is improper to suggest to the jury that expert witnesses might, through inattention, fail to comprehend the true meaning of hypothetical questions put to them.

      Form & Powell, for plaintiff.

      Walter D. Meals, contra.
    Henry, J.; Winch, J., concurs.
   The parties to this proceeding in error stand in the relation opposite to that in which they stood below. There Twiggs brought his action against Dr. Ellis for wrongfully causing the ’ death of the former’s wife and intestate, by obstetrical malpractice. Mr. Twiggs consulted Dr. Ellis about the last of March, 1905, and upon examination he found that she was threatened with involuntary abortion.

The threatened event occurred on or about April 5. The afterbirth was not removed until about April 9th, its removal being, as Dr. Ellis claims, impracticable until that time.

Afterwards, between April 12 and 29th (one witness positively fixes the former date; see bill of exceptions, page 198), Mrs. Twiggs exhibited some of the characteristic symptoms of blood poisoning, i. e., chills and fever. On the latter date she went with her husband to the doctor’s office. He, finding that she was suffering from fever, ordered her to go home and to go tc. bed and stay ¿here. This she did, languishing until her death, June 17, following. Dr. Ellis was in attendance upon her most if not all of this time, although it appears that about the middle of April his patient seemed to be better, so that she determined to dispense with his services and with those of her nurse. The dates as fixed' by different witnesses are so confused, that we can say nothing with positiveness as to the actual facts in regard to these details.

A verdict and judgment of $1,500 were recovered against Dr. Ellis.

•The errors alleged by him are:

1. The verdict is unsupported by the evidence, both as to fact of liability and the amount of the damages.

2. The refusal of the .court to submit to the jury this' interrogatory: “When did the decedent first manifest fever or chill, as a sympton of the infection of which she died?”

3. The charge of the court concerning expert witnesses, as follows:

“Much of the evidence in this case has been the evidence of experts, what we call expert witnesses. Witnesses who have particular learning or experience of knowledge .about matters that are involved in the trial of the case, are called here to give their opinions, based upon a given state of facts, and many of those expert witnesses never saw this woman perhaps; they gave their opinion here based upon a statement of facts as claimed by counsel to have been proved by their witnesses. Expert testimoney has some peculiar qualities. It is possible sometimes that expert witnesses may not be put in full possession of the ease as it really is before the jury. Some omissions of counsel in stating a hypothetical case, some inattention of the witness in listening to it, if it is a long question — there is always some — and possible at least, that there may be some slip of that kind. I don’t say that there was any such thing occurred in this ease, but that liability, however slight, as it may be, attends more or less the introduction of expert testimony. Sometimes an expert witness takes an interest in one side of a case or in another. He wants to help somebody or to hurt somebody, and his opinion may be more or less warped, just as the testimony of other witnesses may be more or less warped by interest or by desire to have a certain result to the ease. Some expert witnesses may be more intelligent than others. Some have had„more experience than others. Some show from their testimony that they have a better grasp of the case that is put to them than others, and so the testimony of expert witnesses and the value of it may vary — may differ. Now I mention these things not to discredit expert testimony at all, but to enable you gentlemen to weigh that class of evidence, as it is not very frequently that you are called upon to consider that class of evidence, and I have stated these things to enable you to weigh these expert witnesses and their testimony as it should be weighed. The testimony of an expert witness may, for various reasons, be of little value: may not be so reliable as that of another; may be for want of experience or ability, and so on. Other- expert witnesses may render the jury more valuable service. Men who are candid and capable and clear in their statements, showing that they comprehend the situation, may give the jury very valuable assistance so now I will leave that kind of testimony for your consideration, with these suggestions for your guidance. ’ ’

4. The plaintiff in error also complains of the admissions of sundry hypothetical questions as embracing matters not in evidence.

Concerning the first of these assignments of error, the evidence discloses that it is dangerous to leave the after-birth undelivered for as long a period as four days after the delivery of the foetus, in eases of abortion, because it is liable to occasion infection or blood, poisoning. True, some of the physicians say that under the circumstances which Dr. Ellis testifies existed in this case the procedure in question was proper; but other physicians testify that it is improper in any case. While it is undoubtedly true that an action for malpractice.can not be successfully founded upon the claim that the'physician has taken one of two discretionary courses concerning the relative propriety of which doctors disagree, yet when the propriety of the course actually taken is challenged, as in this case, the question is one for the jury to determine as to whether the course taken was improper, so as to manifest want of ordinary skill and care on the part of the physician, or whether its propriety is, under the evidence, a discretionary question. The true doctrine should of course be presented to the jury in the charge, and no complaint is made of the charge in this behalf in the case before us. We can not say, from the evidence, that the jury were wrong in finding that the conduct of Dr. Ellis in this ease was irreconcilable with the exercise by him of ordinary skill and care as a physician. If the ease were originally presented to us, we might essay a decision, but our province is solely to determine whether the jury had any substantial evidence on which to found the verdict at which they arrived.

It is claimed, however, that upon the facts of this case it is apparent that the blood poisoning originated from some other cause than the delay in removing the afterbirth. It appears to be agreed that infection declares itself within three days after exposure thereto, and Dr. Ellis claims that the first appearance of infection in Mrs. Twigg’s case was nearly three weeks after the removal of the afterbirth. But, as already stated, one witness positively declares that on April 12, while Dr. Ellis was still in attendance upon his patient, and before his alleged dismissal by her, Mrs. Twiggs was suffering from a chill, and there is some testimony at least that the condition of the afterbirth when removed was such as to compel the inference of infection already declared at that time. Moreover, Dr. Ellis himself .signed-the death certificate in which he had written as the “cause of death: Placenta-Previas (?) auto-infection, duration twelve weeks.. Contributory cause of death; Sepsis, duration eleven weeks.” While the duration of cause, or contributory cause of death as thus given by Dr. Ellis is too great to support his own theory, it is likewise too great to support the theory of the plaintiff. It is however significant that the difference of duration is but a week between the inception of the cause of death to-wit, auto-infection, superinduced by some condition of the placenta, or afterbirth, and the appearance of the contributory cause of death, to-wit, sepsis or blood poisoning. Dr. Ellis now says that this interval was three weeks instead of one. It seems to us that while this' death certificate is by no means conclusive of negligence or unskillful! ness, it is pretty nearly conclusive as to the origin in both time and cause of the condition which resulted in the patient’s death. All in all we are not prepared to say from a consideration of this record alone that the verdict is either unsupported by any evidence, or contrary to the weight of the evidence.

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 aud motherhood to authorize substantial as distinguished from nominal damages.

See Railway Co. v. Murphy, 50 Ohio St., 135; St. Railway Co. v. Altemeier, Admx, 60 Ohio St., 10.

Concerning the request for a special finding, we think it should have been granted. The time when the infection first declared itself was as already shown, a most important fact of the case. It is perhaps true that the most favorable answer from Dr. Ellis’ standpoint to the question thus sought to be asked of the jury in his behalf would have involved no such inconsistency with the general verdict against him as to require or warrant the granting of a motion for judgment non obstante veredicto, if interposed by him. But this is not the exclusive test to be applied in passing upon a request to submit interrogatories to the jury. It is true, of course, that misleading interrogatories should not be submitted, nor those which re]ate merely to processes by means of which the jury arrive at their general verdict.

The interrogatories must be directed to the ascertainment of the jury’s mind concerning facts in issue, not merely ultimate facts, but determinative facts. It is sufficient if they are of such nature as that the answer to them, when delivered upon and returned by the jury shall tend to test the correctness of the general verdict. Electric Ry. Co. v. Hawkins, 64 Ohio St. 391; Gall v. Priddy, 66 Ohio St., 400.

The interrogatory in this case, we think, would have tended to test the correctness of the general verdict and it should therefore have been submitted. To refuse to submit it was error.

Concerning the third assignment of error, the charge of the court on expert witnesses, we note particularly this sentence:

"Some omissions of counsel in stating a hypothetical case, some inattention to the witness in listening to it, if it is a long question - — there is always some — and possible at least that there may be some slip of that kind.” ■

All the witnesses of the defendant below were physicians. The hypothetical questions asked of them were necessarily long, much longer than those which the theory of the plaintiff below required in the case of the hypothetical questions propounded to his expert witnesses. The statement quoted from the charge was therefore discriminatory against the defendant’s witnesses. We think it was improper to suggest to the jury that these expert witnesses might, through inattention, have failed to comprehend the true meaning of the questions put to them. Experts are called because of their superior learning and intelligence in some direction, and a professional expert can not be presumed to be any less likely to comprehend the meaning of a question, long though it may be, than any other witness. To ascribe inattention to them, even by way of suggestion, may well mislead the jury into speculation concerning the unreliability of expert testimony, even within the sphere of its conceded value. See Insurance Co. v. Hoiuell, 68 Ohio St., 614, 622; State v, Tuttle 67 Ohio St., 440 (4th paragraph of the syllabus).

We think the court erred in intimating that there may have been some inattention on the part of the expert witnesses in listening to any hypothetical questions.

Concerning the fourth and last error assigned, we content ourselves with the remark that the hypothetical questions objected to and allowed to be put to witness by plaintiff below are not so plainly inclusive of facts, for which there is no evidence, as to warrant our finding error in the overruling of the objections made thereto.

Upon the whole record we find no error, except as already noted, to-wit:

1st. In refusing to submit the interrogatory to the jury as requested by the defendant below.

2d. In charging the jury that expert witnesses may have been inattentive to some elements in long hypothetical questions.

For these two errors the judgment of the court of common pleas is reversed and the cause remanded for a new trial.


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    AN INVALID PROVISION IN THE ACT PROVIDING AID FOR. THE NEEDY BLIND.
    Court of Appeals for Franklin County.
    The State of Ohio, ex rel John P. Brennan, Treasurer of State, v. W. C. Benham, as Treasurer of Franklin County, Ohio.
    Decided, November 11, 1913.

      Constitutional Law — Beneficiaries under the County Act — Deprived of Tested Bights in Existing Funds 6y the State Commission Act— 103 O. L„ 833.
    1. Section 8 of the state commission act for “relief of the needy blind,” providing for payment into the state treasury of funds already in the hands of county treasurers for aid to needy blind, is in contravention, of the rights of the county beneficiaries for whom these funds were raised by tax levy and whose rights therein accrued prior to the passage of the present act, which is- prospective in its operation and has for its purpose the general benefit of needy blind throughout the state.
    2. But taken in its entirety the present act is not repugnant to any provision of the Constitution, and will be treated as a valid enactment, with the provision eliminated as to payment of funds into the state treasury heretofore raised and now in the hands of county treasurers.
    3. These existing funds should be administered under the county act which the state act sought to repeal; and where a surplus remains in the hands of a county treasurer, after providing for the beneficiaries for whom it was intended, it may be transferred to the general revenue fund of the county under laws existing at the time the levy was made.

      Timothy S. Hogan, Attorney-General, Clarence D. Laylin and Henry 8. Ballard, for plaintiff.

      Edtvard C. Turner, Prosecuting Attorney, John M. McGillivray and Herbert C. Sherman, for defendant.

      M. B. Eatmhart and W. E. Tilton, amici curiae.

    Ferneding, J.; Allread, P. J., and Kunkle, J., concur.
   'This action is one of mandamus to compel the county treasurer of Franklin county, Ohio, to deliver to the state treasurer the sum of $32,721, representing the balance of a fund on hand and in his official custody raised by taxation under a levy for the relief of the needy blind of said county. This relief sought is founded upon the following provision in the legislative act of May 9th, 1913 (103 O. L., 833), entitled “An act to create an institution for the relief of the needy blind,” to-wit, the provision in Section 8 that “after the passage of this act, and on the demand of the state treasurer, the treasurer of the respective counties shall transfer and, pay over to the state treasurer all moneys in their possession or that may thereafter come into their possession under present levies for the relief of the blind.”

The respondent makes two defenses:

1. The unconstitutionality of the state commission act and particularly as to clause 8 above recited;

2. That certificates awarded under the county commission act prior to the passage of the state act, which became effective August 11, 1913, and amounting to $30,503.62, are outstanding and unpaid and should be liquidated out of said fund prior to any amount thereof being paid the state treasurer.

A demurrer was filed by the relator to each of these defenses.

The act of April 23d, 1904, entitled “an act to provide relief for worthy blind” (97 O. L., 392), was declared unconstitutional'in the case of Lucas County v. State (75 O. S., 114), decided October 16, 1906. The General Assembly thereupon passed the act of April 2d, 1908 ( 99 O. L., 56), entitled “an act to provide relief of needy blind.”

This act has been declared by the Supreme Court in a recent decision as constitutional (the opinion in full has not yet been made public). This act of 1908, before the Supreme Court in the recent case referred to, was amended in certain particulars prior to the passage of the state commission act of 1913, but the amendments were not of such character as to imperil its constitutionality.

"We have carefully considered the various statutes upon the subject of relief to the blind, and have arrived at the conclusion that so far as the general purpose of the state commission act is concerned it is not repugnant to any provision of the Constitution except the clause above quoted from Section 8. The fund in controversy was raised prior to the passage of the state commission act, under levies specifically made for previous years supplying relief to the needy blind in Franklin county, which fund was to be administered through the channel of the county authorities in favor of the holders of certificates and warrants adjudged entitled thereto.

The state administration act took effect August 11th, 1913. It is prospective only in its operation, and is to be administered for the general benefit of the needy blind throughout the state. It therefore follows that the transfer of the Franklin county fund to the state treasurer would necessarily have the effect of diverting the moneys from the county beneficiaries, who had rights accruing prior to the passage of the state act, to a general class of beneficiaries throughout the state. The fund should with propriety be confined to Franklin county alone.

This clause of Section 8 is therefore in conflict with Section 5 of Article YII of the Constitution, which provides:

“No tax shall be levied except in pursuance of law, and every act imposing a tax shall state distinctly the object of the same to which only it shall be applied.”

This clause in Section 8 of the act of 1913' is merely incidental, and is not vital or controlling as an inducement of the entire act and may be separated therefrom. Its invalidity does not therefore affect the other provisions of the act except the repealing clause. The repealing clause of the act of 1913, so far as it attempts to repeal or supersede the county commission act in the administration of the funds on hand, is also void to that extent, for the reason that the Legislature would not have absolutely repealed the former act except for the clause providing for the transfer of the fund to the state authorities.

It is contended that at least the surplus after the payments of warrants due up to the time of the taking effect of the state act should be paid into the state treasury for administration under the state act. We are not without doubt upon this feature, but after careful consideration we have reached the conclusion that under the constitutional provision above quoted even the surplus can not be transferred to the state treasury, but must be retained in the county treasury to go to the general revenue fund or other county purposes to which it may be transferred under laws existing at the time the levies were made.

• The demurrer to both defenses of the answer will therefore be overruled, and if no amendments to the pleadings are desired, final judgment may be rendered in favor of the defendant.


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    VALIDITY OF THE NEW JURY LAW.
    Court of Appeals for Sandusky County.
    Frank S. Shoffstal and Carrie A. Shoffstal v. Robert A. Elder and Clara J. Elder.
    Decided, July 5, 1913.

      Provision for Verdicts Toy Nine or More Jurors — Actions to Which This Law is Applicable — ■Section 11455 as Amended.

    1. The amendment to Section 11455, General Code, 103 O. L., 11, passed February 6th, 1913, and which went into effect on May 14th, 1913, providing that “in all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number,” relates to the remedy and is to be construed as if Section 26, General Code, was a part thereof.
    2. The words, “in all civil actions,” being general in character, are not sufficient to make the statute applicable to actions pending when the act became effective, but an express provision is necessary to accomplish such result, and the act as amended applies only to civil actions commenced on or after May 14th, 1913.
    3. In an action to recover damages for fraud and deceit in the sale of personal property, the measure of damages is the difference between the value of the property as it was represented to be and its actual value at the time of the purchase. (63 O. S., 545, followed.)

      Jesse Vickery, for tbe plaintiff in error.

      Parkhurst & Vickery and Garver <& Garver,-contra.
    Chittenden, J.; Richards, J., and Kinkade, J., concur.
   Tbe action in tbe common pleas court was brought by tbe plaintiffs in error as plaintiffs against tbe defendants to recover damages alleged to have been sustained because of fraud and deceit practiced by the defendants in the sale to plaintiffs of a certain stock of merchandise. The transaction out of which the damage is said to have arisen was the trade or exchange of certain real estate in Toledo for a stock of dry goods, millinery and fixtures in the city of Bellevue, made on or about the 24th day of August, 1912. It is claimed by the plaintiffs that the defendants fraudulently represented the stock of goods to be of good quality, and that it would invoice $6,500. It is also claimed that the defendants represented that they had an established trade, and that their sales would amount to $12,000 per year. The plaintiffs claimed that these representations were false, particularly with respect to the amount of the inventory of such goods, and they alleged that the goods did not at the time invoice to exceed $1,516. They claim that they relied upon the representation of the defendants in making the exchange, and they have been damaged in the sum of $3,000. The real estate in Toledo, owned by the plaintiffs and by them deeded to the defendants in exchange, was encumbered by a mortgage of $2,000, and as a part of the bargain the plaintiffs agreed to and did execute and deliver to the defendants a promissory note for the sum of $2,000, secured by a chattel mortgage upon the stock of goods conveyed to them by the defendants. It appears that thereafter, to-wit, December 31st, 1912, the defendants discovered some defect in the form of the chattel mortgage, and requested the plaintiffs to execute a new note and mortgage in lieu of those theretofore given. They thereupon did execute a new mortgage and ten new notes, aggregating the sum of $2,000, which were secured by the mortgage, and another note for $40, representing the accrued interest, which was unsecured.

On the 21st day of March, 1913, the plaintiffs commenced this action in the court of common pleas. The defendants by their answer denied all the allegations of the petition charging fraud in the transaction, and set up a cross-petition in which they sought to recover judgment upon the promissory notes, and also prayed for a foreclosure of the chattel mortgage securing the same. The cause went to trial on the 6th day of May, 1913; the court charged the jury on the 20th day of May, and on the 21st day of May the verdict was returned, signed by ten jurors who had agreed upon the verdict in which the other two jurors did not concur. The verdict of the jury wás in favor of the plaintiffs upon the cause of action set up in their petition, and their damages were assessed at no dollars. Upon the causes of action set up in the cross-petition of the defendants, the verdict was in favor of the defendants for the sum of $2,069,23, that being the full amount of the defendants’ claim. A motion for a new trial was filed by the plaintiffs, which was overruled by the common pleas court, and judgment was entered upon the verdict, in favor of the defendants. Thereupon the plaintiffs prosecuted error in this court, and present a bill of exceptions containing all the evidence.

The first question challenging the attention of the court is as to whether or not the court was in error in charging the jury that when nine of their number had agreed upon a verdict, it might be returned into court. The amendment to Section 11455, General Code, providing that “in all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number,” was passed by the General Assembly on the 6th day of February, 1913. It was approved by the Governor on the 12th day of February, 1913, and was filed in the office of the Secretary of State February 13th, 1913. By provision of the Constitution, Article II, Section lc, the law as passed by the General Assembly did not become effective until ninety days after it had been filed by the Governor in the office of the Secretary of State. It therefore did not become effective until the 14th day of May, 1913, and it will be seen that the cause was upon trial at the time when the amendment became effective. It is claimed by the plaintiffs that the amendment did not affect the case on trial because'it was pending at the time the law went into effect, and that the amendment contained no provision expressly making it applicable to pending cases. The amendment providing for a verdict by less than the unanimous agreement of the jurors is one clearly remedial in its nature. At the time of its passage Section 26, General Code, was in full force and effect. The section reads as follows:

“Sec. 26. Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

The question presented is- not one calling for construction of any constitutional provision, but only for a construction of the amended statute, Section 11455, as it may be affected by Section 26, General Code.

Article I, Section 5, of the Constitution of the state, providing that “the right of trial by jury shall-be inviolate, except that, in civil eases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury,” does not by its terms enact that a verdict, concurred in by three-fourths of the jury, shall be sufficient. The constitutional provision only conferred upon the Legislature the power to abolish the common law verdict requiring the unanimous agreement of the jury, and substituting therefor a verdict to be concurred in by not less than three-fourths of the jury. The amendment in question was passed by the Legislature with the evident purpose of carrying into effect this constitutional provision.

In State, ex rel Construction Company, v. Rabbitts, 46 Ohio State, 178, the court held:

“The statute relates to the remedy, and must be construed in connection with Section 79, Revised Statutes; so that, the language therein contained, 'that in every instance where a judge of the court of common pleas is interested in the event of a cause * # * pending before the court in any county in his district,’ it may, ‘unless there is a judge residing in the county not só interested,’ be removed to another county, does not, though general in form and expressed in the present tense, apply to a pending action, where the state of facts, constituting such ground of removal, existed at the adoption of the statute. No generality of language used in an amendment relating to the remedy, will, under Section 79, Revised Statutes, make it applicable to a pending action, prosecution or proceeding; to make it so applicable the intention must be expressed in a provision to that effect.”

In discussing the effect of Section 26, General Code (formerly Section 79, Revised Statutes) the Supreme Court in Traveler’s Insurance Company v. Myers et al, 59 O. S., 332, say:

“This section of the statutes was adopted for the reason that, though the Legislature is denied by the Constitution the power to pass retroactive laws, it had been held that this did not include laws relating to the remedy; and so to prevent abuses, of which there were many and somewhat discreditable instances, it was provided that where laws relating to the remedy were adopted they should not affect pending actions, prosecutions or proceedings, nor existing causes of action, prosecutions or proceedings unless otherwise expressly made so in the amending or repealing act. The policy of the section suggests that it should receive a liberal construction to the end that its policy be not subverted; and that an act within its1 provisions should by clear language express that it was intended to apply to each classification of Section 79 — cause of action, prosecution and proceeding; and if it fails to apply to all, it should be applied no further than the language employed requires. State, ex rel Construction Company, v. Rabbitts, 46 Ohio St., 178.”

To the same effect is the decision in Charles v. Fowley et al, 71 Ohio State, 50; also State v. Barlow, 70 Ohio State, 374.

In interpreting a constitutional provision, the Supreme Court in the case of Hupp et al v. Hocking Valley Oil & Natural Gas Company, decided May 6th, 1913, and found reported in the Ohio Law Reporter of June 16, 1913, used the following language:

“Courts for the review of legal proceedings are, and have been, an essential part of our judicial'system. Valuable rights acquired under a system in full and legal operation should not be held by the court to have been withdrawn and destroyed, unless by express language or by provision, from which it must follow, by necessary implication, that such result was intended. This doctrine was upheld in Commonwealth v. Balph, 111 Pa. St., 379; Endlich on Interpretation of Statutes, Section 522.”

The common law jury of twelve men, with the necessity for a unanimous verdict, has been a part of the judicial system of this state since its organization, and the right to have a proper case submitted to such jury has been a right enjoyed by all citizens; and, applying the language above quoted, such right “should not be held by the court to have been withdrawn and destroyed, unless by express language or by provisions from which it must follow, by necessary implication, that such result was intended.”

In Article IV,.Section 2, and Section 6, and the Schedule, Section 20, of the Constitution as adopted by the vote of the people on September 3d, 1912, an intention upon the part of the people to preserve existing rights in pending cases, is clearly shown. It is contended that the words, “in all civil actions,” clearly indicate an intention upon the part of the Legislature to make the amendment applicable to pending eases. We can not agree with this contention. The language is general in its character, and is not to be held to take the place of the express language required by Section 26, General Code, in order that it may be made applicable to pending actions. It will be noted that the Supreme Court has distinctly stated that when construing a statute of 'this character it must be read as though Section 26 was in fact a part of the section construed. The words quoted seem rather to have been used so that the amended section would agree in its wording with the words used in Article I, Section 5, of the Constitution, conferring the right upon the General Assembly to enact the amendment. It also has the effect of specifically limiting the three-fourths jury verdict to civil actions, and to no other class of actions or proceedings.

It is our conclusion that Section 11455, as amended by the act passed February 6th, 1913, does not apply to actions pending at the time of its going into effect, to-wit, May 14th, 1913. If it is deemed wise that the amendment should be made applicable to pending actions, it should be so determined by the Legislature in express terms, as the power to make it so applicable is legislative and not judicial in character.

It follows that the trial court was in error in charging the jury that á verdict might be returned upon the agreement of nine or more of their number. The judgment will therefore be reversed and remanded for a new trial.

In view of this result, certain other errors complained of by the plaintiffs should be discussed in this opinion. At the conclusion of the evidence and before argument, the court was requested by the defendants to give certain written instructions to the jury. Some of these requests related to the claim of plaintiffs that there was n representation as to what the stock would invoice. No question has been made as- to the sufficiency of the allegations contained in the 'petition in this respect. There may be some question as to whether an allegation that there was a representation that the stock of goods would invoice a certain amount, is the equivalent of a representation that the stock was of a given value, unless the allegation is accompanied with the further statement that it was understood between the parties to be the equivalent of a statement of its value.

Special instruction number 7 in substance is to the effect that the plaintiffs had no right to rely upon the statement's of the defendants, their interests being adverse to those of the plaintiffs, if the plaintiffs were so situated that they could, in the exercise of ordinary diligence, have examined and ascertained whether their statements were true or fraudulent. Whether this would be a correct statement of the law in a proper ease need not now be determined; but we are of opinion that it is not a correct statement of the law as applied to this case, the evidence showing that the goods about which the representations were made consisted of a stock of dry goods and millinery; that the representations went not only to the quantity and quality of the stock, but also to the volume and extent of the business and the amount that the stock would invoice. We think that under these facts as shown by the evidence, the request as framed might have been misleading to the jury, and should not have been given.

The tenth written instruction is to the effect that the good-will of the business was a salable asset in connection with the tangible property of the business, and that it is not necessary that the term, “good will,” be specifically mentioned in order to convey the same. This instruction would imply that there was an issue in the case as to whether or not the good will was included in the sale; whereas, by the answer of the defendants and the reply of the plaintiffs, it is admitted that the good will was included in the sale of the premises. The giving of this instruction might be harmless were it not for the fact that there was a contention as to whether or not the good will might properly be included in an inventory of the stock. It is entirely clear that good will is not properly included as an item in the inventory of a stock of merchandise.

The instruction, therefore, as framed, we think may have been misleading, and should not have been given.

We disapprove of the” eleventh instruction as given, as being calculated to mislead the jury. It fails to state clearly that if the jury find from the facts proven that the plaintiffs, by the giving of the notes and mortgage, thereby intended to waive any claim for damages arising from false representations, the plaintiffs could not recover in this action.

The only other error which we think needs to be discussed at this time is the error claimed to have been made in charging the measure of damages. The court charged that the measure of damages was the difference in value between the house and lot of the plaintiffs and the value of the stock of goods of the defendants on the date of the exchange. Counsel for neither party claimed any different rule. This charge was erroneous. The correct rule of damage is laid down by our Supreme Court in Linerode v. Rasmussen, 63 Ohio State, 545. It is the difference between the value of the stock of goods as it was at the time of the exchange, and its value if it had been as represented by the defendants. This rule of damage has been followed by this court in numerous decisions.

The judgment of the court of common pleas will be reversed and the cause remanded for a new trial.


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    FAILURE TO COMPLETE DELIVERY OF GIFT OF STOCK CERTIFICATES.
    Court of Appeals for Lawrence County.
    George W. Merchant and Catherine M. Merchant v. The German Building & Loan Company et al.
    Decided, March 25, 1913.

      Gifts — Certificates of Stock Endorsed and Placed in Possession of Brother as a Gift to Parents — Delivery Held to have Toeen Incomplete.

    Dr. Merchant was the owner of a certificate of deposit, issued to him on December 29, 1910'. Soon thereafter, in the donees’ presence, he endorsed and delivered the certificate to his brother, declaring it was a gift to the donees to be delivered to them. This donor informed donees. The brother did not deliver the certificate to .donees until after donor’s death, on May 1, 1912. In the meantime the donor had received three semi-annual interest checks, which he endorsed and returned to the building and loan company, it affirmatively appeared he used the proceeds of the last check. Held:

    1. From the facts stated, the brother is presumed to have been the agent of the donor and the donor retained dominion over the certificate.
    2. There was no valid, completed delivery.

      A. J. Layne, for plaintiff in error.

      E. E. Stewart and Jed B. Bibloee, contra.
    Jones (Thomas A.), J.; Walters, J., and Sayre, J., concur.
    Error to the Court of Common Pleas of Lawrence County.
   Dr. William M. Merchant had issued to him by the German Building & Loan Company a certificate of deposit dated December 29, 1910. Soon after'its issue, he endorsed and delivered the same to his brother, George Hannan Merchant, with the statement that said delivery was to him as a gift of said certificate for his father and mother, the plaintiffs, and that he was placing it in the name and possession of his brother for the plaintiffs, said certificate or fund to be delivered to them. At the time of such endorsement and delivery to his brother the donor informed the plaintiffs that he had placed said certificate with his brother as a gift for them, which was to be delivered to them by said George H. Merchant.

After he had received'said certificate the brother kept possession of the same until after the death of Dr. Merchant on May 1, 1912, and after said date he endorsed and delivered the same to plaintiffs.

The building and loan company had no knowledge of the assignment, but issued three semi-annual checks, as interest thereon, and mailed them to Dr. Merchant; said checks were returned to the building and loan company endorsed by Dr. Merchant, it affirmatively appearing from the agreed statement that the last of these checks issued April 1, 1912, amounting to $20.43, was received by him and the proceeds used by him.

The contest arises between the plaintiffs, who claim as donees, and the administrator of the estate of Dr. Merchant. The widow is also resisting the claim of the plaintiffs.

The trial court, on the pleadings and facts agreed upon, rendered judgment in favor of the administrator, and the plaintiffs are prosecuting error.

The only question to be determined is: Was there a valid gift of the certificate of deposit or of the fund by Dr. Merchant to the plaintiffs? The facts agreed upon do not contain the required essentials to make it a gift donatio causa mortis; and, if sustained at all, it must be sustained as a gift inter vivos. Nor can it be doubted that, whatever may have been the rule of early decisions, a certificate of deposit may now be the subject of gift with or without endorsement; but the same principles apply thereto as in the gift of ordinary chattels.

Was it a valid gift inter vivos? Some of the requirements necessary for its establishment have been fully proved. The capacity of the donor to make it, his intention to confer it upon the donees, are beyond dispute; and if there was a valid delivery, its acceptance would be presumed on the part of the donees, because of the undenied benefit accruing to them. It remains only to be determined whether there was sufficient proof of delivery of the certificate. There is no trouble as to the general rule applying to the requirements necessary to prove a gift of chattels inter vivos. The rule is plain, but its application, in some cases, difficult. Text books are confusing, not in the statement of essentials, but in the attempted application of various jurisdictions as they grope in the twilight zone of fact constituting completed delivery.

Neither do the ordinary principles of trusteeship arise from the facts developed, except the incidental trust relationship that would arise in the event that the depositary should be found to be the agent of the donees. If the depositary was the agent of the donor, or if the donor had the power of revocation before delivery, it is elementary that no completed gift was made. So if the gift is not to be delivered in praesenti. Smith, Admr., v. Ferguson, 90 Ind., 229.

It appears that the certificate was endorsed and handed to the depositary to be delivered to the donees as a gift, and they were advised of the fact at the time. If the delivery had been made in the donor’s lifetime there would be no question of its completion, but it was not endorsed and manually delivered to the donees until after his death. If it were revocable during his lifetime, his death would revoke it.

If the transaction is directly between the donor and the donee, and the chattel capable of manual delivery, such delivery is necessary; otherwise, where the subject is not capable of manual delivery, then proof of constructive or symbolical delivery is required. The same character of delivery should be required when it is made through the intermediary of a third person. In gifts inter vivos if the donor delivers a chattel capable of manual delivery to a depositary with instructions to give it to the donee, although he has avowed his intention to the donee, until the subject is actually delivered to the donee, by the depositary, a locus penetentiae attaches to the proposed gift, wherein it may be revoked by the donor or by his death. In such cases the depositary is the agent of the donor, designated by the donor for the purpose of delivery only. Since the only authority of his agency is to deliver the chattel, until the authority is executed by delivery he who created the agency can also make it. In discussing the essentials of a gift inter vivos the Supreme Court of Massachusetts says:

“When one not in apprehension of death delivers a thing to another, to be given to a third, when the depositary shall see him, whether the donor live or die, the authority of the depositary to deliver the thing will be revoked by the death of the donor, unless- it be previously delivered to the donee and accepted by him.” Syllabus- in Sessions v. Mosely, 4 Cush., 87; Dickeschied v. Bank, 28 W. Va., 340.

This, then, is plainly the rule unless it is shown that, by the declaration of gift and by thé conduct of the donor, the depositary was the agent or trustee of the donees. The latter claim the certificate in question by an effort to convert the depositary into an agent or trustee for themselves. As has been said, there was no express trust imposed upon George Hannan Merchant in favor of the donees; nor does there appear from the agreed statement an agency relation between him and the donees by the creation of the latter. There is no proof that Dr. Merchant constituted his brother the agent of the donees, and in the absence of such proof he must be presumed to have acted as the agent of the donor. Clapper v. Fredrick (Pa.), 49 Atl., 219, and authorities there cited.

If any such agency appears here, it must be shown from the language and conduct of the donor alone.

The language used does not bear such constructions, and is-not as strong in that regard as that used by the donor in Worthington v. Redkey, 86 O. S., 128. And whether it be claimed that the depositary was agent or trustee, the same quantum of proof would be necessary. In order to establish either agency or trusteeship the burden of proof is upon the plaintiff donees; and, for obvious reasons, the law required proof that is clear and convincing, not merely a bare preponderance. This rule of evidence is not only sustained by the weight of authority elsewhere (20 Cyc., p. 1223) but emphasized in the following Ohio cases: Gano v. Fisk, 43 O. S., 473; Flanders v. Blandy, 45 O. S., 113; Worthington v. Redkey, 86 O. S., 136.

Nor is the rule of proof relaxed except in some eases where a close -relationship exists between donor and donee, or where unequivocal possession of the gift is shown in the donee.

The certificate was handed to George H. Merchant as a gift for the donor’s father and mother, “to be delivered to them.” Neither by language or conduct of the donor does it appear that an immediate delivery was to be made. Such delivery before revocation is an absolute essential. At the time of the endorsement and delivery to the depositary the donees were present, yet the certificate was not handed to them; it remained in the hands of the brother for a period of about fifteen months without demand therefor by the donees, so far as appears from the record. During this time the donor received the three semi-annual interest check payments, which checks were returned to the company with the donor’s endorsement thereon, it appearing affirmatively that the proceeds of the last check were used by him. The time of delivery is uncertain. If it were the intention of the donor to retain dominion over the gift until his death, at which time it was to be delivered to the donees, it would not only be void as an uncompleted gift, but void as an attempt to make a testamentary disposition thereof.

That the donor endorsed the certificate to the depositary does not aid the requirement of a completed delivery. The donor could recall the endorsement as well as the agency before delivery.

“The endorsement of the donor’s name on the instrument is merely evidence of his intention to make a gift, which may be proven aside from such endorsement.” Polley v. Hicks, 58 O. S., 223.

While a number of authorities have been cited by counsel on both sides in this case, the' great weight of authority supports the principles foregoing in this opinion, and their seeming variance is in the application of facts to the general rules. In this case we find that there was no completed delivery of the certificate or the fund to the plaintiff donees.

The judgment of the common pleas court is affirmed and cause remanded for further proceedings.


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    PARTICULARITY IN AN INDICTMENT.
    Circuit Court of Cuyahoga County.
    Albert C. Goode et al v. State of Ohio.
    Decided, January 24, 1910.

      Criminal Lem — Indictment—Surplusage and Indefiniteness — Meaning of Words Defined by Use of Synonyms — Charge.
    1. An indictment is not bad solely because it contains surplusage, nor is it indefinite if it affords the accused protection in his legal rights in making a defense and also furnishes him a record of conviction or acquittal that he may interpose if indicted a second time for the same offense.
    2. In a trial for unlawfully exhibiting obscene, lewd and lascivious figures, etc., the court'charged that words “obscene,” “lewd” and “lascivious” were to be taken and construed together, as charging a single offense and to be considered in their ordinary signification and in their popular sense. He also, in defining said words separately, gave synonyms of them approved by lexicographers, some of which synonyms do not possess the precise content or meaning which the entire phrase carries; Held: Not reversible error.

      Harry F. Payer, for plaintiff; in error.

      John A. Cline, contra.
    Henry, J.; Marvin, J., concurs; Winch, J., not sitting.
   The plaintiffs in error were convicted of violating Section 7022 of the Revised Statutes of Ohio, under an indictment which charged that they “unlawfully did exhibit obscene, lewd and lascivious figures, images and casts, to-wit: of the nude female body with openings; of male sexual organs; of venereal diseases; of human organs; of deformed human heads. Said obscene, lewd and lascivious figures, images and casts then and there being of material to the grand jurors unknown and said obscene, lewd and lascivious figures, images and casts then and there being articles of an immoral and indecent nature,” etc.

The first error assigned is that the indictment is bad for want of sufficient facts, for indefiniteness and multiplicity.

There is undoubtedly surplusage therein, but this may be rejected and still leave a sufficient description of the offense.

“Extreme particularity is neither necessary nor desirable in such cases. For the accused it is sufficient if there be such degree of certainty as will afford him protection in the exercise of his legal rights in making a defense, and also to furnish a record of conviction or acquittal, that could be interposed if indicted the second time for the same offense.” State v. Zurhorst, 75 Ohio State, 232, 239.

Upon the authority of that decision, fortified as it is by numerous cited decisions closely in point here, we hold the indictment to be valid.

The second assignment of error is upon the admission in evidence of numerous exhibits, irrelevant to the prosecution.

No such instance has been particularly-called to our attention, and upon inspection of the revolting exhibits, which, by direction of the court, were detached from the bill of exceptions, we fail to find any that were inadmissable under the broad allegations of the indictment.

The third error assigned is that the bill of exceptions discloses no evidence to show that the plaintiffs in error, both of whom were employed upstairs in the physician’s office, were exhibitors of the objects contained in the proprietor’s anatomical museum below. But the connection between these two apartments is shown to have been so immediate and intimate as to justify the inference that the employes upstairs were chargeable with participation in the maintenance of the exhibits downstairs.

The remaining assignments of error relate to the charge of the court:

(a.) In failing to lay down as the test of criminality the tendency of the exhibits to allure beholders to sexual impurity and to arouse libidinous thoughts.

(b.) In giving remote synonyms of the words obscene, lewd and lascivious, thereby authorizing a conviction if the- exhibits were merely offensive to the taste.

(c.) In charging that it is'sufficient if some considerable class of the community is liable to inspect these easts and be depraved and degraded thereby.

We find no error in the charge in these particulars.

The court charged that the words “obscene, lewd and lascivious” are to be taken and construed together, as charging a single offense, and “they are to be construed and considered by you in their ordinary signification and in their popular sense. ’ ’ The fact that in defining each of these words separately synonyms approved by lexicographers were employed, some of which do not possess the precise content or meaning which the entire phrase carries, could not mislead the jury, and the fact that the larger part of the community may be disgusted rather than allured to depravity by the exhibits in question does not afford a defense. As remarked in State v. Zurhorst, supra, “the entire section aims to prevent the contamination of our youth and the demoralization of the public mind.”

From our inspection of the exhibits we are far from being able to say that the jury went wrong in finding as they did, that they were adapted to minister to the obscene, lewd and lascivious curiosity of certain classes in the community.

Finding no error in the record, we affirm the judgment below.


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    INSURANCE AGAINST LIABILITY FOR. INJURIES TO EMPLOYES.
    Circuit Court of Cuyahoga County.
    Moses Garrett v. Travelers Insurance Company.

    Decided, February 10, 1910.

      Employer’s Liability Insurance — Insolvency of Employer — Injured Employe Ept Subrogated.

    Where insurance is only against loss from liability incurred by the party insured to an injured employe, the latter can not be subrogated, in ease of the former’s insolvency, to the policy holder’s right to indemnity in whole or in part.

      W. C. Ong, for plaintiff in error.

      Eoyt, Dustin, Kelley, MeKeehan & Andretus, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

       Affirming Garrett v. Travelers Insurance Co., 9 N.P.(N.S.), 412.

   The parties stand as they stood below. There the action was upon a policy of employer’s liability insurance issued by the Travelers Insurance Company to John Miller & Company, in whose employ Garrett was injured, under circumstances which brought his case within the terms of the policy. He had previously recovered a judgment of $500 against his employer for said injury, but the judgment debtor has meanwhile become utterly insolvent, so that nothing can be collected directly upon the judgment; hence Garrett sues upon said policy which insured John Miller & Company against loss from liability in damages for injuries to their employes.

This case is to be distinguished from those in which the contract of insurance is against liability instead of merely against loss from liability as here. When this distinction is observed we find but one ease which squarely supports the plaintiff’s theory, Sanders v. Insurance Company, 72 New Hampshire, 485. The overwhelming weight of authority is to the contrary. Connolly v. Bolster, 187 Mass., 266; Cushman v. Fuel Co., 122 Ia., 656; Allen v. Gilman McNeill & Co., 137 Fed. Rep., 136; Allen v. Aetna Life Ins. Co., 145 Fed. Rep., 881.

Upon the authority of these and many other decisions to the same effect, as well as upon principle, we hold that no action lies upon a policy insuring against loss from liability until the loss ' contemplated is sustained by the party insured. But where the insurance is against liability incurred by the party insured to an injured employe, the latter may undoubtedly be subrogated in case of the former’s insolvency to the policy holder’s right to indemnity in whole or in part, as circumstances may warrant, but such is not this case, and the judgment is affirmed.


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    POWER. OF JUSTICE OF PEACE TO PUNISH FOR REFUSAL TO ANSWER.
    Circuit Court of Cuyahoga County.
    Charles O. Rehburg v. A. J. Hirstius, Sheriff, et al.
    Decided, May 9, 1910.

      Contempt — Refusal of Witness to Answer — Jurisdiction of Justice of the Peace.

    A justice of the peace has power to punish a witness in a case before him for refusal to answer a question germane to an injury as to the service in the case.

      Laubscher <& Kees, for plaintiff in error.

      Walter McMahon, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The action below was a proceeding in habeas corpus begun by Charles O. Rehburg to obtain his release from imprisonment for contempt of court in refusing to answer the question “Who does business as H. Rehburg, if you know, ” in a civil action brought before a justice of the peace against ‘ ‘ H. Rehburg, doing business as Rehburg Electrical Company.”

Upon suggestion that II. Rehburg was dead, that the return of service upon him was erroneous, and that service had in fact been made upon Charles O. Rehburg, who was not the proprietor of the business in question, the justice advised him to move to quash the service of summons upon him. Such motion was thereupon made, and Charles O. Rehburg was sworn as a witness in support of his said motion. Upon cross-examination he declined to answer the question above quoted.

We think the justice had jurisdiction to inquire into the validity of this service, the return of which was apparently regular. But whether so or not, the plaintiff in error was estopped to deny the jurisdiction which*his own motion invoked. It is no answer to say that he was trapped into his present plight. The suggestion by the justice that he made the motion to quash was in no sense coercive. Nor could he, by forbearing to press his motion, or to offer his own further testimony in support of it, deprive the court of jurisdiction to continue the inquiry concerning the truth of the return of service and to compel- the witness to submit to such reasonable cross-examination as would test his veracity and recollection.

Judgment affirmed.


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    ERROR. IN CHARGE CURED BY ANSWERS TO INTERROGATORIES.
    Circuit Court of Cuyahoga County.
    The Northern Ohio Traction & Light Company v. Ralph Carr, a Minor, by George W. Carr, His Next Friend.

    Decided, May 9, 1910.

      Requests to Charge Refused — Error Cured by Special Findings of Jury. Though proper requests to charge are refused, the error in refusing ■ them is not prejudicial if the answers of the jury to special interrogatories submitted to it render the requests irrelevant.

      Ford, Snyder & Tilden, for plaintiff in error.

      A. W. Lamson and W. B. Beeie, contra.
    ITenry, J.; Winch, J., concurs.

      Affirmed without opinion, Northern Ohio Traction Co. v. Carr, 84 Ohio State, 458.

   The defendant in error was plaintiff below, where he recovered a verdict and judgment -in an action for damages for personal injuries sustained by him while a passenger upon one of plaintiff in error’s interurban cars, by being thrown from the rear platform of said car through the motorman’s negligence in rounding a sharp curve too rapidly.

Among the errors assigned here, the exclusion of certain evidence is cured by the subsequent admission of the same evidence in the later testimony of the witness who was then being examined. So also the refusal of certain requests to charge presented by the defendant below, is cured by the special findings of fact, made by the jury in answer to interrogatories submitted to them, thus rendering the requests irrelevant. The Toledo, St. L. & W. R. R. Co. v. Burr & Jeakle and the Ohio German Fire Insurance Co., 82 Ohio St., 129.

The sole remaining assignment of error relates to the following paragraph in the court’s charge, which was otherwise both comprehensive and accurate:

“Where a passenger has received injuries upon the cars of a common carrier of passengers, a presumption of negligence may arise against the carrier by reason of the facts and circumstances under which the injuries are received. If you find that the facts and circumstances of this case raise such inference against the defendant, then the defendant will be required to introduce sufficient evidence to counterbalance any such inference; otherwise you will be warranted in finding the defendant negligent. ’ ’

It is urged that this was misleading, because, if there were any evidence tending to prove such facts and circumstances as would raise a presumption of negligence on the part of the defendant below, the jury should have been told what they were, instead of being allowed to speculate about them; for “a presumption is a deduction which the law expressly directs to be made from particular facts,” irrespective of any process of reasoning therefrom by the jury.' Not having been thus advised, the jury should not, it is urged, have been told to take the inference, if any, of negligence which they might deem to be annexed by law to the facts and circumstances, as ascertained by them from the evidence, and to weigh against such inference the evidence, if any, introduced by the defendant to counter-balance it.

The language of the court is indeed open to this criticism; but we think it does not amount in this case to reversible error. While the trial judge doubtless had in mind the res ipsa loquitur doctrine, without, however, adequately applying it to the ease in hand, the jury could hardly have understood, from this language of his, anything else than what is elsewhere in the charge fully and correctly stated, to-wit, that they were required to find by a preponderance of all the evidence whether or not the defendant was chargeable 'with negligence as alleged in the petition and as defined by the court.

The first sentence, in the paragraph complained of, really means nothing else than that negligence may be proved by circumstantial evidence; which is, of course, true. The second sentence, considered apart from the clause about the defendant’s being required to introduce evidence, is pure tautology, an identical proposition, axiomatic and harmless.

“If you find that the facts and circumstances of this case raise such inference against the defendant, then you will be warranted in finding the defendant negligent. ’ ’

This language is surely rendered no worse for the defendant below by including the omitted clause, which affords it some opportunity at least, of escape from the prescribed conclusion. No new burden of any kind is imposed upon the defendant. While this part of the charge could hardly have aided the jury, we fail to see how it could have prejudiced the defendant. The judgment is affirmed.


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    LIEN UNDER. EXECUTION UPON DORMANT JUDGMENT HOW RELEASED.
    Circuit Court of Cuyahoga County.
    James Van Nover v. David Eshleman et al.
    Decided, May 31, 1910.

      Execution on Dormant Judgment — Voidable Only.

    An execution upon a dormant judgment is not absolutely void, but voidable only, and must first be set aside upon motion made in the court whence'it issued, before it ceases to be a lien upon the land upon which it was levied.

      John McSweeney and M. L. Spooner, for plaintiff in error.

      A. D. Metz, Higley (& Maurer and Hills <& Van Derveer, contra.

      Henry, J.; Winch, J., and. Marvin, J., concur.
   The main question sought to be presented in this case is as to the validity of an execution issued between the date of a conditional order of revivor of a dormant judgment and the date of the order making such revivor absolute. We have not found it necessary to consider this question because of our conclusion upon a secondary question presented in argument relative to the validity of executions issued upon judgments that are dormant irrespective of the pendency of revivor proceedings. The authorities clearly hold that such executions are not void but merely voidable, and they may be set aside only upon motion made in the court whence such execution issues. Freeman on Executions, Sections 29, 30, 75 and 76; Green v. Cutwright, Wright’s Reports, 738.

We fail to see that Kelley v. Vincent, 8 Ohio St., 415, sometimes cited to the contrary, is in point. The action below is an independent suit brought to marshal liens and to foreclose the lien of a judgment rendered in a foreign county, which lien arises, if at all, from the execution in question issued to the sheriff of this county and levied upon the lands here. We think the execution was not void, but at most only voidable, and that it could only be set aside by a motion in the court from which it issued.

It follows that the judgment of the court below which found the contrary is erroneous, and the same is reversed and the cause remanded for further proceedings according to law.


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    DISQUALIFICATION OF SUCCESSOR. OF WARD ASSESSOR..
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel James McMahon, v. Patrick Carlin.
    Decided, May 31, 1910.

      Ward or Precinct Assessors — Failure to Elect — Yacancy.
    Under General Code, Section 3352, a vacancy and not a holdover rersults when there is no duly elected and qualified successor to a ward or precinct assessor.

      George A. McGrath, for relator.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This is an action in quo warranto to test the right of the relator and defendant respectively to hold the office of assessor in the eighth ward of the city of Cleveland. The relator claims to hold over because the defendant who was elected to succeed him in said office is disqualified by non-citizenship. Under Revised Statutes of Ohio, Sections 6762-6764 (General Code, Sections 12305-12307), the relator can not maintain this action unless he claims, with some color of ground, to be entitled to the office. His claim is evidently founded on Section 8, but he has apparently overlooked Section 1518, Revised Statutes (General Code, Section 3352), which provides that a vacancy and not a holdover results when there is no duly elected and qualified successor to a ward or precinct assessor. The petition is therefore dismissed for want of jurisdiction.