text:
    CUSTODY OF CHILDREN IN DIVORCE PROCEEDINGS.
    [Circuit Court of Hamilton County.]
    Graviess v. Graviess.
    Decided, November 15, 1905.

      Divorce — Custody of Children — Material Advantages not Controlling-Discretion of Court With Reference Thereto — Attitude of Reviewing Court as to — Continuing Jurisdiction of Trial Court.

    1. The continuing jurisdiction which is vested in the court of common pleas with reference to the custody of children for the purpose of modifying orders in divorce proceedings does not authorize a re-hearing of a matter theretofore submitted and determined, but is only to be called into exercise when a substantial change in the condition of the parties requires a modification of the former order.
    2. The discretion vested in a trial court with reference to the custody of children will not be inquired into by a reviewing court, except on a charge of abuse of discretion or that a grave mistake has been made.
    3. The afflueBTce of relatives who owe the children no duty is not controlling as against the care and interest of their mother.
    Jelke, P. J.; Swing, J., and Gieebn, J., concur.
   Tbis is a proceeding in error prosecuted to -an order of the court of common pleas, made January 17, 1905, modifying a former decree of that court as to the custody of children.

On November 26, 1901, the court of common pleas decreed a divorce between George F. Graviess and1 Elizabeth Graviess for the aggression of the husband, and in that decree confided the care, custody, education and control of the children, Helen, Alice and Edna, to the wife. In violation of this order said George F. Graviess took the children out of the jurisdiction of the court but soon thereafter returned the child, Helen, to its mother. In January, 1905, said George F. Graviess having returned to and within the jurisdiction of said court of common pleas, was brought before that tribunal for contempt, and fined and punished therefor; and the matter of the custody and care of the minor children came on for consideration under a motion to modify the former decree. It is error to the order made upon this motion that is under consideration here, and the chief ground of error alleged is that said order 'and decree, is contrary to and against the weight of the evidence introduced at this latter hearing.

E. T. Brown, for plaintiff in error.

E, Mt Bcflflyrdi, pojitra,

The care and custody of children in divorce proceedings is a continuing matter in the trial court, and one which addresses itself to the sound discretion of that court. When that discretion is exercised, a reviewing court is very loath to disturb or interfere with any order. It is said that such order will only be inquired into on a charge of abuse of discretion. While we do not like to say in this case that the discretion vested in the trial court has been abused, we are impressed by the record that a grave mistake has been made. The continuing jurisdiction of a court of common pleas in the matter of the custody of children, does not mean that that court may change its former orders and decrees at any time because the court may have changed its mind. This continuing jurisdiction to modify former orders'is not to be used for the purpose of a re-hearing of the matter theretofore submitted and adjudicated, but is only to be called into exercise when a substantial change has taken place in the condition of the parties, which would call for and require a modification of the former order. See case of Pfau v. Pfau, 8th C. C., page 87; opinion per Smith,. J., of this court.

Again, at this latter hearing, it seems to1 us that an undue and exaggerated consideration was' given to the wealth and affluence of the married sister of the said George F. Nraviess. The mere fact that through the prosperity of relatives and connections, who owed the said George F. Graviess no duty, and absolutely no duty to these minor children, superior advantages could be afforded them, furnishes little or no reason for taking them away from the mother to whose care they had been confided. Of course material advantages may be somewhat considered, but they are not controlling, and the mother’s care and influence in this case, we think, should have outweighed them.

We are therefore of the opinion that the order of January 17, 1905, should be reversed, and this cause remanded to the court of common pleas for further examination and consideration.


source: Caselaw Access Project

license: Public Domain

text:
    INJURY TO AN EMPLOYE FROM A KNOWN DANGER.
    [Circuit Court of Lucas County.]
    Henry Marshka v. Republic Iron & Steel Company.
    Decided, October 21, 1905.

      Master and Servant — Negligence—Known Danger in Operating a Machine — Assurance of Foreman that Work is Safe — Not Binding on the Master, When.

    Where a peril which can be easily apprehended attaches to the operation of a machine that is in good order, and it appears that the operator understood the danger, the fact that his foreman on a previous occasion, when the machine may have been running at a different rate of speed and at work on different material, expressed the opinion that the work was safe, does not render the master liable for an injury to the operator from the apprehended danger; and the taking of a case from the jury under such circumstances does not constitute error. (Van Duzen Gas Go. v. Schelies, 61 O. S., 298, distinguished.)
    Wildman, J.; Haynes, J., and Parker, J., concur.
   The plaintiff in error, who was plaintiff below, brought a suit against the defendant, claiming a verdict because of a certain injury sustained, as he claimed in his petition, by reason of 'the negligence of the defendant. The plaintiff was an employe of ■the defendant and was engaged in the operation of a certain machine or device designed for cutting iron in the shop or factory of the defendant; and while so engaged on the 26th day of March, 1904, he sustained the injury described in his-petition. He was engaged in cutting two pieces of iron fastened together by bolts at the ends; and 'he'aJleges in his petition that to attempt to cut two pieces of iron so bolted together was dangerous; that he was- unaware of that fact; that he had been instructed by a superior employe representing the company that the work eou-ld be conducted without hazard.

To state the matter a little more specifically, he alleges that #ome time prior to the 26th day of March, 1904, the date of his injury, the defendant company had pieces of iron so bolted together placed with other material, which the plaintiff was required to cut; that the plaintiff told the' superintendent and foreman over him and in charge of his work, that he feared that he might receive injury in attempting to cut two pieces of iron fastened together; that said superintendent and foreman told plaintiff that there was no danger in doing said work and requested -and required plaintiff to- continue to do said work, and then he alleges that in the operation of the machine on the day of the injury and while- so engaged in cutting iron he was required to cut -two pieces of iron so fastened together; that while so doing said pieces of iron flew from the machine in such manner -as to strike plaintiff’s right hand and fracture both bones thereof between the wrist and elbow. He alleges that the defendant was careless 'and negligent in requiring and requesting plaintiff to cut two pieces of iron so bolted together. He says that he did not know and had no means of knowing of the danger to which he was exposed and continued to- work relying upon the assurance of his superior that the same was safe; that the defendant knew, or by the exercise of ordinary care should have known, that to require the plaintiff to cut two pieces of iron so bolted together in said machine would expose plaintiff to the danger of receiving bodily injury.

After the introduction of the plaintiff’s evidence the court arrested the case from the jury and directed a verdict for the defendant, and to this order and ruling exception was taken, and the plaintiff preserved his rights in the usual form.

It appears by- the evidence that upon some previous occasion this plaintiff had (received another injury while operating the same machine. It does not appear as to just how that prior injury was caused, but it also- appears, and perhaps might fairly be inferred if it did not appear, that the plaintiff had some apprehension of injury at almost all times while operating this machine; and • indeed, in the very transaction which is the basis of this case, the plaintiff indicated by his conduct, as it seems to us, -a sort of nervousness or fear that injury to him might result from his work. There is no claim whatever of any defect in the machine itself. There is no claim that there was any negligence of any kind on the part of the defendant company, except as stated in the petition, “in requiring and requesting plaintiff to cut the two pieces of iron so bolted together.” There is no other charge in the petition thait the defendant was negligent in the giving of the directions which it is said the plaintiff received. It is alleged, to be sure, in the petition that he received assurances from the superior 'that it was safe to do the work in the manner described, or safe to cut two pieces of iron While bolted together; but he alleges that rather in the way of exonerating himself frc-m any charge cf contributory negligence than in the way of charging the defendant company with negligence in the mere assurance to him that it was safe to do the work in this way. The only allegation of negligence as against the defendant company that I can find in the petition is the allegation that the defendant was careless and negligent in requiring or requesting him to cut two pieces of iron so bolted together.

Now we think this was a danger incident to the business; that the danger was reasonably apparent; that the plaintiff did apprehend it; and, unless the case is analogous to that found in one of the decisions by our Supreme Court, the Van Duzen ease, the plaintiff would not be entitled to recover. The Van Duzen ease, reported in the 61st Ohio St., page ‘298, laid down a general proposition, which has been not seldom misapplied by counsel in the trial of personal injury eases, and an effort has been made to extend the doctrine therein expressed to eases which do not stand on, all fours with the case in which the doctrine was enunciated. That was a ease where the person injured had been peremptorily directed to go into' a place of danger, and the Supreme Court held in substance — I have not the case now before me — that where the danger was not so obvious as to have prevented any man of urinary prudence from obeying the order to do the hazardous work, he would not be prevented from Recovering against the company giving the direction to do the work, notwithstanding the fact that the danger was not a concealed danger.

I have before me the ease of Cleveland v. Wolf, decided bv the Cuyahoga Circuit Court in November, 1903, and reported in 2 C. C. — N. S., 126. The syllabus as it appears in 15 C. D., 406, is as follows:

“A charge to the jury in a.n action by a servant against the master to recover for damages resulting from the negligence of the latter is improper, which permits the jury to conclude that the servant would not be guilty of negligence, b'y reason of obeying general orders of the master, unless the danger of so doing was so obvious that -a man of ordinary prudence would not have exposed himself to it, and which wholly ignores the the question of assumed risk, it appearing from the evidence that plaintiff was engaged at the time in the performance of his usual and ordinary duties which he had been engaged in for several years for the master, and it also further -appearing that mo special or peremptory orders or instructions were given to the servant on the particular occasion. In such case, the court should define the kind of orders or instructions which would relieve the servant from the thought, care and scrutiny which he otherwise would be bound to exercise in the discharge of an ordinary duty which had in it certain elements of danger Which he assumed while so engaged.”

The judge announcing the opinion says on page 128:

“There was no evidence produced showing that Wolf was peremptorily ordered into the trench at the time he was hurt, lie himself says-, up-on cross-examination, that he always knew his duty and went d-own into the trench without being told, am-d tha-t the pipe was put in the trench that day in the same way -and in the usual manner of putting pipes in trenches. W-o-lf had worked for the city twelve or thirteen- years-, the first five -or six years in digging water pipe trenches, and the remainder -of the time in putting water pipes in position at the bottom of th-e trench and connecting them together — the very thing he started to do when he was injured. ’ ’

After some -consideration of these facts in -connection with the rule announced in the Van Duzen case, the court concludes that the proper rule is- set forth by the Supreme Court in the case of Northern Railway Company v. Rigby, 69 Ohio St., 184. 1 have this case before me -and deem it pertinent to the case at bar. I quote the decision of th-e court as .expressed in the syllah bus:

“In the trial of an action brought- by an employe, against a railway company, to recover for injuries sustained by the explosion of a car heater on a passenger coach, while -he was attempting to thaw out the frozen water pipes, while the ear was standing in the yards of the company; and where the evidence tends to prove that the heater was without a steam guage to the knowledge of the employe, and that the. explosion was caused by the use of -a solid plug in the drum of the heater instead of a safety valve, which plug was put in by the employe a few days before the explosion by direction of his superior; and where the evidence further tends to prove that the employe was an experienced foreman of car repairers and familiar with the. system of heating used on said car, and with the proper method .and means of thawing out the water pipes when frozen; and where the only order from the superior was 'a telegram to get the car ready for use; to charge the jury without further explanation, that ‘If you find at the time of the explosion and for several days prior thereto, there was no safety valve in the drum of the Baker heater in car 22; that said safety valve had been removed and replaced by a solid plug, and that Rigby knew pf these facts when he attempted to thaw out said heater at the time of the explosion complained of; and further, if you find that said explosion resulted wholly from the fact, that said drum had a solid plug instead of a safety valve, then Rigby would nevertheless be entitled-to recover in this action if you find by a preponderance of the evidence that in attempting to thaw out said heater, as he did, he was acting in obedience to a positive order' of his superior; that a person of ordinary prudence would, under the circumstances, have obeyed such order, and that in obeying such order he used ordinary care,’ is misleading and erroneous.

“Where the superior, while absent, sends an order to an employe to perform certain work or duty, but leaves to. such employe the selection of the. means and manner of performing the service, t'he doctrine of The Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St., 298, does not apply.”

I will not tarry to call attention to the reasoning of the judge to sustain the doctrine laid down in the syllabus by the court; but it is enough to say that the case at bar has many features paralleling those in the Wolf case decided by the Cuyahoga Circuit Court and the case to which I have just referred, the case of Railway Co. v. Rigby. The plaintiff in this case had been for some time employed in the" operation of this particular machine, and for a period of about six months he was in charge of it; he had had experience in the cutting of different kinds of iron, and. upon more than one occasion he had had occasion to cut bars or pieces of iron bolted together; 'and that he clearly apprehended some hazard from the work in which he was employed is very1 apparent from all the evidence. Now there is another circumstance, which to the mind of the court maltes the ruling of the court below entirely justified by the circumstances here. As I have said, the only negligence complained of was the giving the direction to this man to cut bars or pieces of iron when bolted together. The evidence clearly discloses that the machine did. not -at all times and under all circumstances work alike; that is to say, that the manner in which the machine would cut would vary with the hardness of the metal sought to be cut, with perhaps the size or length of the pieces and some other conditions. It does appear by the testimony that upon a prior occasion the plaintiff had been assured, in substance, by one Jones, his superior, that the work which he was then complaining about would be safe, and Jones went on and did it himself with apparent safety; he cut some pieces of iron which were bolted together without any resulting injury to himself, and the plaintiff saw him do- it; and up-on the assurance that it was safe, it is -possible that the plaintiff continued in the w-o-rk and thereafter without any instructions cut -all kinds of material when so bolted together. Whether they were precisely like the pieces which were cut by the superintendent, Jones, upon the occasion when-he gave the instructions to the plaintiff does not appear; that assurance, after all, was at the best but an opinion of -the superintendent; and the work was not s-o complicated, it was not so difficult to ascertain whether it was saf° o-r perilous, as to excuse the plaintiff from any observation for himself. It was emphasized to some extent by one witness that while it might be dangerous to cut steel when so bolted together, it might not be dangerous to cut iron.

Now the conditions when the superintendent gave the instructions may have been altogether safe conditions. lie did not say, so far as the testimony discloses, “You may go on cutting bars -of iron at all times and under all -circumstances when y-ou find them bolted together and y-ou can do- it with safety.” There was no assurance of that kind; no expression of opinion along that -line; but the only expression was that.upon that particular occasion, with that particular iron bolted together, just as it was, in the opinion of the superintendent it was. safe to do the work. It appears from the testimony of Marshka that the iron which did the injury was made up of a sort of strap or bar iron, and a round or cylindrical piece of rod about an inch in diameter which was bolted to it ait the ends. The rod or bar, whatever it was, that was cut by the superintendent, was only three-quarters of an inch thick. It does not seem to be a very great difference and yét it might be just the difference which would make the one operation safe and the other perilous. Again, the regulation of the speed of the machine might have something to do with the safety or the peril. Mr. Marshka in his testimony says that he could regulate the speed of the machine. There are so many circumstances that are to be taken into account in the determination as to whether the instructions were negligent or not, and there was. such an utter failure to show that the- conditions were precisely the same on the day in March when Marshka received the injury and the prior occasion when the superintendent gave the instruction, that the court was justified in not permitting the case to go to the jury and allow the jury to guess that the instruction was to be construed as one applicable to the work on the day of the injury and with the materials which were then to be operated upon. Again, applying the principles of the Wolf case and the Rigby ease already cited, there was no peremptory order on the day of the injury to go into a place of danger; he was simply doing the work as in the Wolf case, as stated by Judge Winch of the Cuyahoga Circuit, in the usual way of doing it, the way he had been accustomed to do it for months. There was no special direction upon that occasion. The hazard seems to have been altogether apparent, -and we think that it is the kind of a hazard which was assumed when he accepted the employment, and with regard 'to which it is to .be presumed that his compensation was fixed. Under all the circumstances we think that the court did not err in arresting the ease from the jury and directing a verdict for the defendant.

G. A. Thatcher, for plaintiff in error.

Holbrook & Monsarrat, for defendant in error.

The judgment will be affirmed without penalty.


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    INJURY WHERE MORE THAN ONE CAUSE INTERVENED.
    [Circuit Court of Lucas County.]
    John Ziehr v. The Maumee Paper Company.
    Decided, January, 1905.

      Master and Servant — Unsafe Place to Work — Slippery Floor — Machine • Out of Order — Concurrent Cause of Accident• — Guessing at the Real Cause — Contributory Negligence — Assumed Risk — Proximate Cause 94 O. U., 42- — Pleading as to Machinery Being Out of Order and Promises to Repair.

    1. Where there are concurrent causes which may have operated, in combination or Singly, to produce an accident, the fact that the machine at which the plaintiff was working was out of repair does not furnish a sufficient basis upon which to ground a verdict in his favor, where the injury occurred in süch a manner as to render it mere guess work to say the accident would not have occurred had the machine been in order.
    2; Where concurrent causes, as in this case, are the immediate and efficient cause of an injury, it is not competent to take one of them away from the other, and say that it and not the other was the proximate cause of the accident.
    3. The provision of 94 O. L., 42, making it negligence for a master to permit the use of certain machinery without guards over it for the protection of operatives, does not make it possible for an operative to, recover for an injury received in such machinery notwithstanding his own negligence at the time of the accident.
    Hull, J.; Parker, J.; and Haynes, J., concur.
   This action was brought by the plaintiff, who was an employe of the defendant, the paper company, to recover damages for personal injuries sustained while in its employ. He was injured while working about a machine called a “beater,” which was, among other machines there, used by the defendant in the manufacture of paper. The lower part of this machine appears to have been a sort of tub, in which was put the paper to be soaked up in order to manufacture other paper, and the beater was connected with this tub-like arrangement and with the pbwer, and was used in beating up the paper that was put in there into a pulp. At the right and in the tub, at or about the top, were two cogwheels, one large one and the other smaller underneath used in working the beater; and above there was an apparatus consisting of wheels and shafts, which, when in order, was used to throw the beater out of gear and leave the upper cogwheels, the large wheel out of the tub and thus stop the beater and separate the cogs so they were not dan,gerous, and did not revolve after it was thrown out of gear. These cogwheels were not covered by guards or otherwise, at the time the plaintiff was injured, and had not been for some six months prior thereto, during which time the plaintiff had worked about this machine.

The plaintiff complains that the defendant was negligent in permitting the upper part of the upper wheels, one of them at least, -to get out of repair and broken, so that the machine could not be thrown out of gear, the cogs could not be separated, as they could have been had the upper apparatus been in repair; and coipplains further that the defendant was negligent in having no guard about the cogwheels. ■,

On the day of his injury he was working about this beater ■and when near the machine, he slipped on the boor and fell floor was slippery from water splashing out of this and other machines, so that it was kept slippery all the time practically ; 'and when near the machine, he slipped on the floor and fell forward, one of his hands going between these cogwheels. The forefinger of his hand was crushed, so that it had to be amputated, and his hand was otherwise injured. He bases his claim against.the company upon the grounds of negligence that I have mentioned.

At the close of the plaintiff’s testimony, upon motion of the defendant, a verdict was directed in favor of the defendant, it being claimed that whatever negligence had been shown, had been assumed by the plaintiff by continuing in the employ of the defendant; and, further, that the machine being out of repair, and the cogs being uncovered were not, but his slipping on the floor was, the proximate cause of his injury; therefore, the plaintiff could not recover. *

The first ground of negligence set forth in the petition was the one in regard to the upper wheels being out of repair, so that the machine could not. be thrown out of gear. It was claimed by the defendant that this did not cause his injury; that it could not be said to have caused his injury; and we agree in this contention with the defendant. The plaintiff testifies that when the machine was in repair, he bad it out of gear a large part of the time; that it was not necessary to have the beater in operation more than perhaps a half an hour in every four or five hours; and he gives it as his opinion that if the upper apparatus had been in repair, if the machine had not been out of repair at the time he fell, he would not have been injured. He says it was usual for him 'to throw the machine out of gear when he went to oil it when it was in repair; he also says there'was one part of the machine that he oiled every hour.

We think it is not at all certain that if the upper apparatus —we will call that the gearing apparatus — had been in repair, that it would have been out of gear at the time he fell. It is largely guess work on the part of the plaintiff, when he says it would have been out of gear at that time; he has no certain knowledge on that question. In order to throw it out of gear he had to. go near the machine on the side opposite the one on which the cogwheels were. Tó be sure, in order to- throw them out of gear before he oiled it, it would have been necessary for him to go near the machine; he might have approached the wheel, had thrown it out of gear on the side where the cogs were, and might have slipped and fell into the cogs at the time he was .approaching it for the purpose of throwing it out of gear in order that he might oil it in safety: So that, to say the mere fact that the upper part of the apparatus was out of repair so that he could not throw it out of gear at that time, was the cause of his injury, would be, it seems to us, mere opinion and practically guess work, not .a thing of enough certainty upon which to rest a verdict.

Coming then to the second ground of negligence, whether the plaintiff can recover on account of the cogwheels being unguarded or uncovered in any way, whether that was the proximate cause of his injury, and if so, whether he had assumed it by continuing in the employ of the defendant, -it is claimed by the defendant that the unguarded cogwheels can not be said to be the proximate cause of the injury. It is said that he would not have been injured had he not fallen.

As far as the floor being slippery is concerned, we can not see that there was any -negligence in that on the part of the defendant. It was practically impossible to keep the floor from being slippery in doing the work they were doing.

To entitle the plaintiff -to recover, it must be made to appear, of course, that the defendant’s negligence was the proximate cause of his injury. A ease that recently went to the Supreme Court from this county is relied on to some extent to support the contention of the defendant — Charles Blickley v. The Milner Company. In this case the judgment of the circuit court was reversed and that of the common pleas -affirmed,' without report. Charles Blickley, the defendant in error, was walking along Jefferson street in this city, alongside of the Milner building, a dry goods store. The Milner Company were using an elevator at the side of the sidewalk, for the purpose of hoist-' ing and lowering goods into the basement, and had left an opening in the sidewalk, guarded only on two sides and not on the front toward the street. Blickley was walking along in the day time; the sidewalk was slippery; it was snowy and slushy. At about that point he met three women abreast, and, in undertaking to pass them, he slipped and fell and slid into this hole in the sidewalk and was injured., The court of common pleas took the ease -away from the jury and directed a verdict for the defendant. That action of the common pleas court was reversed by the circuit court, for the reason that it must have been held that the hole in the sidewalk was the proximate cause of Blickley’s injury. There were, however, two objections -made by Milner Co.’s counsel to the plaintiff’s recovery: First, that that was not the proximate cause of the plaintiff’s injury; second, that Blickley was guilty of contributory negligence at the time of his injury. Both of these questions were argued in the brief of counsel in the Supreme Court, the question of proximate cause being 'argued -at much greater length than the one of contributory negligence; however, the latter question is argued at some length, and the surroundings discussed ; and it is urged that Blickley was guilty of contributory negligence; that he ought to have seen the hole there, among other things; and we do not feel that we can say that the Supreme Court held in that case that the hole in the sidewalk was not the proximate cause. The case is unreported; we have no knowledge of what the holding of the Supreme Court was, or the grounds upon which they based their judgment. Therefore, we do not think we ought to consider that case as an authority upon this question of proximate cause. That may have been the ground upon which the Supreme Court decided the ease, and it may not have been. The judges of the Supreme Coui*t may have been divided upon the ground on which the case ought to have been reversed; as to this we have no knowledge whatever; and therefore we feel averse to considering this question in this case, notwithstanding the decision in the Milner case.

Now it seems to us that the true rule is, as we gather it from the authorities, that where, in case of master and servant, like this case, the negligence of the master is one of the causes of the of the servant’s injury, is one of the causes without which he could not have been injured as he was, that the fact that the negligence of a third person is also a cause of his injury, or the fact that some inevitable or unavoidable accident occurring at the same time wais the cause of his injury, or some inanimate object, that, nevertheless, if the master’s negligence may be said to be one of the proximate causes of the man’s injury, that the master is not excused, because the negligence of some one else has contributed, as well as his own negligence, or because some accident, some unavoidable accident, happening has also contributed to the servant’s injury, if it appears that without tine negligence of the master the accident could not have happened. Now it seems to us that this rule laid down in many of the authorities is a just and reasonable rule. Many accidents are caused by two or -more concurrent causes. Take the Milner case. Blieldey would not have been injured as he was, if the hole had mot been in the sidewalk. To be sure, his slipping contributed to his injury; if he had not slipped down he probably would not have been hurt. But he was walking -along the sidewalk in the ordinary way, as he had a right to walk, and accidentally slipped down as men do upon sidewalks. Suppose some sharp object, an upturned knife of some kind used in machinery had been left upon the sidewalk, and he had fallen upon that and injured himself, it would seem- as if a person guilty of such negligence leaving such a thing upon the sidewalk ought not to be excused, because, in injuring himself upon it, or at the time of injuring -himself, he slipped upon the sidewalk and fell down. Suppose a man puts a tub of scalding hot water in front of his residence, or molten iron, and his -neighbor walking along, when near it, slip® down, or a child slips down and falls into such a thing, ought it to be said there could 'be no recovery, any excuse against one guilty of such an act of negligence, because the injured p-arty ha-s been injured while walking along there, has fallen at that place? It does not seem to us that that ought to be the law; t-hat that ought to excuse. If this were true- it would be practically impossible to recover from a wrong-doer, or one guilty of such negligence. The ease of Lore v. American Manufacturing Company, 160 Missouri, 608, is very much in point. The first paragraph óf the syllabus is as follows:

“1. Mill Guards — Failure to Provide — Negligence.—A failure to provide guards or fences for the gearing and cogwheels of spinning machines in a jute manufactory, according to the requirements of the statute, is negligence. ’ ’
And it may be said here, which I will discuss a little further along, there is a statute in this state-, in the 94 Ohio Laws, page 42, requiring machinery of this kind to be guarded, covered, and making it negligence if it is not. The eighth paragraph of this Missouri case is .as follows:
“8. Combination of Causes — Assumption of Risk. — Where the injury is caused by defendant’s negligence conspiring with an accidental cause, namely, the slipping on the oily floor, of whose condition she well knew, and her falling into a cogwheel of the machine at which she was employed to work through .an opening in the guard which the defendant had negligently failed to repair, it will not be held that she 'assumed the risk of falling on the slippery floor; the facts showing that she would not have been injured by falling had it not been for defendant’s negligence, in failing to provide a guard.”

On page 625 of the opinion the court says:

“If-she had not fallen, she would not have been hurt, and consequently the fall caused by the slippery condition of the floor was the proximate cause of her injury. On this point the circuit court instructed the jury that if they found the facts to be as stated1 in the first ’instruction, it was not essential to plaintiff’s recovery for her to prove that the slippery condition of the floor was occasioned by the negligence of defendant.
“In a word, the question is raised whether, if the defendant was negligent in allowing the guard around the machine to become and remain out of repair whereby plaintiff was injured, it can be held liable for that negligence, notwithstanding the fact that she would not have received thht injury if she had not first stepped on the slippery floor.”

And the court held that she could recover. They say on page 627 — quoting from another opinion:

“It is true that if the plaintiff had not slipped, his limb would not have been plunged into the hot water tank. It is equally true that though he slipped, the disaster would not have overtaken him bad not the tank been uncovered. The latter would not have occurred except for the presence of the co-existence of both causes. -The cause of plantiff’s slipping was altogether accidental; if it was the sole cause of the injury the defendant is not liable. But the injury would not have resulted had not -another cause combined with the accidental cause. If the. plaintiff was- in the exercise of ordinary care and prudence at the time he slipped, and the injury is attributable to the absence of th-e cover over the tank, together with the slipping, then the plaintiff should -recover.”

And I will say in this case it does not appear that the plaintiff was negligent in any respect in the matter of slipping. He was- working on the floor that was provided there and conducting himself, so far as can be seen, in an ordinary prudent manner.

A somewhat similar question is discussed in 143 Ill. page 242, The Pullman Palace Car Company v. William Laack, The question here rather was whether the plaintiff could re~ cover for the negligence of a fellow-servant combined with that of the master. That, as I understand it, is the established law of this state, that he can recover. But the court discuss the question generally somewhat in the opinion. They say on page 261:

“It is well settled that where the injury is the result of the negligence of the defendant and thiat of a third person; or of the defendant, -and an inevitable accident; or an inanimate thing has contributed with the negligence of the defendant to cause the injury, the plaintiff may recover, if the negligence of the defendant was an efficient cause of the injury. (Citing several -authorities). In such case the negligence of the two independent persons resulting in injury to the third, where neither is sufficient within itself, both are to be treated in combination as- the proximate cause of the injury. It is clear that the negligence of the fellow-servant, in and of itself, ooul-d not have produced the injurious results suffered by appellee. The negligence of appellant and the fellow-servant were therefore concurrent causes, and combined were the proximate cause of the injury. An efficient cause is simply the ‘working cause,’ or that cause which produces effects or results (Webster), and a proximate cause is that which stands next in causation to the effect, not necessarily in time or space, but in causal relation.”

Now it is very clear in this ease — at least very probable, almost certain — that the plaintiff would not have been injured by slipping on the floor and falling at this time had these' cogs been covered. It was the cogs that actually inflicted the injury upon him, the cogwheels in which he threw his hand. The slipping, combined with the negligence of the defendant in leaving the cogs uncovered, produced his injury. The question is discussed by the leading text-books. See Thompson’s Commentary on the Law of Negligence, Section 3857, page 122, where the rule is stated as to an injury which is the result of the occurrence of several causes. The author says:

“Here, as in other cases where an injury is the result of several causes combined and concurring to produce it, the master will be liable if he is responsible for any one of such causes. ’ ’

And further along in the section he says:

“The test is, to consider whether the injury would have happened to the servant but for the negligence of the master, with respect to the concurrent act, the omission of the third person. This, where -a servant was injured because of the defective appliance which the master should have repaired, the latter shall not relieve him from liability because the proximate cause of the accident was the act of the third person, that it would not have occurred but for the failure to repair. Where, in a suit for personal injuries due to defective -machinery, it appears that the defect (insufficiently protected knives) was due to the defendant’s negligence and was the immediate cause of the injury, the fact that the initial and moving cause was the plaintiff’s slipping on the floor, in which respect the defendant was -not liable, will not preclude a recovery.’)

And the same doctrine is laid down in the recent work of Labat on Master and Servant, Vol. 2, Sec. 813, page 2246:

“Where several causes concur to produce certain results, any of them may be termed ‘proximate’ provided it appears to have been an efficient cause. The general rule applicable to all such cases illustrates this situation, except those in which the contributory negligence of the servant himself is involved, is that in order to establish his right of action, it is merely necessary to show that none of the co-operating causes of the injury was a culpable act or omission for which the master was responsible. This rule holds good whether the other causes were also defaults for which he was responsible or were due to some event or some condition for which he was not required to answer.”

It seems to us that these authorities lay down the law as it ought to be, and as we believe it to be, that where two concurrent causes, as in this case, are the immediate and efficient cause of the servant's injury, you can not take one of them away from the other and say that it was the proximate cause and not the other. If it were evident that the person would not have been injured had not both causes beein present, then one is the proximate cause, and may be considered so, as .well as the other.

The other important question in this case is whether Ziehr assumed this'risk by continuing- in the employ of the defendant, knowing that the cogwheel was uncovered. At common law and before the passage of this statute to which I have referred, this would undoubtedly have been true. It is said that where a servant continues in the employ of his master, without objection, without promise of repair of machinery, that he is presumed to have agreed to assume the risk by an implied con-' tract on his part that he will take his chances, and if he is injured he can not recover. It was further claimed in this case that Ziehr had made complaint of this machinery and there had been a promise to repair it, and that, therefore, he comes within the rule of such a case. In our judgment, it is not pleaded in the petition that Ziehr had complained of the uncovered cogs, and that 'the master had promised to repair them. It is alleged that he had promised to repair certain things. They promised that the superintendent would see that the same were repaired. That is the allegation of the petition, and just before that is this allegation: “Plaintiff; says that he told the person in charge of said mill who had authority over plaintiff, and who was the representative of the defendant company in conducting this said business, that such attachments were broken and out of repair.” Now before that the word “attachments” were used with reference to the upper part of this wheel, that is the roller and the gearing, and there is no square allegation in the petition that he had made it definitely plain in regard to the cogs, or that the master had promised -to repair them, and there is no testimony in the record coming up to that point that he had complained especially of the cogs, or that the master had promised to cover them. He says he complained generally of the machine to the master 'and the master promised to fix it up; but we do not think that the testimony rises to the point necessary to show .a complaint of a particular defect in the machine, so far as the cogs were concerned, and a promise to repair them. So that the -case comes down to the question whether under this statute he assumed the risk by continuing in the employ of the defendant. The statute is found in 94 Ohio Laws, page 42, passed March 20th, 1900, and it provides for and requires the covering of such machinery as these cogs. The doctrine of the assumption of the risk is based upon an implied contract on the part of the employe that he will assume the risk so far as the defect in machinery is known to him, and this implied contract arises from his continuing in the employment.

He does, as a matter of -law, assume the natural and ordinary risks of the employment, but he does not assume the risk of negligence of the master, ordinarily.

The case of Krause et al v. Morgan, 53 Ohio St., 26, is cited as an authority, notwithstanding a statute of this character, an employe by remaining in the employ of the master where he knows the machinery to be defective, does assume the risk the same as he did before the passage of the act. The statute makes a violation of it negligence in itself, by providing that ordinary care shall consist of doing certain things, and the Supreme Court in this case, in the 53d Ohio State, say that failure on the part of the master to observe the statute in question in that case was in itself negligence. We think from a careful reading of that case that the Supreme Court did not decide nor intend that a servant, by remaining in the employ of the ¡defendant where there- is a defective machine or something of that character, thereby assumed the risk of injury therefrom, the same as he did before the passage of such a statute. This case was one against a miner; it was decided before the passage of the act to which I have referred; but by a statute then in force, a miner was required to take certain pre- . cautions -against fire damp, a highly explosive gas being in existence in the mine; he was required to have a safety lamp and to make certain inspections. In this case of Krause v. Morgan, it seems that Morgan was an employe of a mine owner, ■and upon going into the mine one ;day, was injured by an explosion from fire damp. But the facts in the ease as disclosed by the record show that Morgan knew or had reason to know that there was fire damp in this mine, knew it was not being properly inspected, but, notwithstanding this he went into the mine with an open light and was injured thereby. The Supreme Court discusses all these facts; they were discussed in the briefs of counsel, and we think the Supreme Court rested their decision upon the ground that, notwithstanding such a statute as this, one injured.- must be in the exercise of ordinary care .at the time of his injury to entitle him to recover; that the statute does not abrogate -or undertake to wipe out the doctrine -of .contributory negligence and thi’¡s seems to be perfectly sound, that similar statutes- are not passed to protect ,a man against his own negligence, but if guilty of •contributory negligence, he can not recover. The court say in the second and third paragraphs of the syllabus:

“2. One who voluntarily assumes a risk thereby waives ithe provisions of a statute made for his protection. And where a statute does not otherwise provide, the rule requiring 'the plaintiff in an action for negligence to be free from fault contributing to his injury, is the same whether the action is brought under a statute or at common law.
“3. Under Sections 298 and 301 of the Revised Statutes, which require the operator of a coal mine to keep the same free from gas, and to have the working places examined every morning with a safety lamp before workmen are allowed to enter, and giving a cause of action to a person injured for direct damage occasioned by any violation or willful failure to comply with the requirements of the statute, an employe can not maintain an action -against an employer • for an injury following such violation, unless a-t the time he was injured he was. in the exercise of due care.”

Now, while the court say in the first part of paragraph 2, which I have read, ‘ ‘ One who voluntarily assumes a risk thereby waives the provisions of the statute made for his protection,” etc., the key-no-te of these two paragraphs of the syllabus is that one must exercise ordinary care, notwithstanding such a statute as this, and if he does not, he can not recover, and the expression, “One who voluntarily assumes a risk thereby waives the provisions of the statute made for his protection,” must be construed in the light of the facts of the case; and in the light of the discussion in the opinion and the dominating question in the case, the judge who wrote the syllabus evidently meant that one who assumed such a risk, a man who goes in a mine with an open light knowing, or having every reason to know from what he has seen and heard, there was fire damp in the mine, or probably there was fire damp in it, a man by such conduct as that is guilty of contributory negligence; and he assumes the risk of doing what he did, •notwithstanding such a statute as this, and it is the sole question, practically, that is discussed in the briefs of counsel in the case, counsel for plaintiff in error being Day, Lynch & Day — Day being now one of the judges of the Supreme Court of the United States. Judge Spear says, on page 30:

‘ ‘ The defense was a denial of negligence and omission of duty, and that the injury occurred by reason of the willful negligence of plaintiff after being warned not to enter the part of the mine where the explosion occurred. Plaintiff, by reply, denied the warning and the negligence.”

And after discussing the question at length, he says on page 41:

‘ ‘ The text of the action in question furnishes no encouragement to the idea that one who is at fault himself which contributes directly to, and is the proximate cause of, the accident, may yet recover because of the previous failure of the operator of the mine to comply with the statute.”

On page 42 of the opinion, Judge Spear further says.:

“And we think it still wise to adhere to the old rule that where the injured party knowingly and deliberately assumes the risk that leads him into immediate danger, he ought not to have a remedy for injuries brought on by his own act and ■arising from perils that are obvious and certain. A safe, and, it seems to us, a humane policy, looking to the prevention of accidents, is to require that all persons engaged,in hazardous undertakings shall act up to the standard of due eare set by the law.”

Now it is evident from reading this case throughout that it was not intended by the Supreme Court here to discuss the doctrine of assumed risk technically with respect to this case, and where Judge Spear uses the terms “assumed risk,” he evidently means, that he took his chances and encountered peril at his own risk in going into such a place with the knowledge that this man had. If it had been the intention of the court to discuss the question of whether under such a statute as this a man assumes the risk by continuing in the employ notwithstanding this statute, we think it would have been made perfectly clear. And .by that we mean, of course, the ordinary risks, it would not be negligence knowing of these, to simply remain in the employ of the master with defective machinery. There is a difference between such an act as that and contributory negligence as is said by the Supreme Court in the case of The Van Duzen Gas & Gasoline Engine Go. v. Schelies, 61 Ohio St., 298:

“1. A servant assumes only such risks incident to his employment as will happen in the ordinary careful management of the business of the master; such as arises from the fault of the master are not assumed, and the servant may recover for injuries therefrom unless his own fault contributed to the accident.
“2. One who, as a servant, does that in his employment which he is ordered to do by the master, and is injured by the culpable negligence of the latter, is not deprived of a right to recover for the injury by the fact that it was apparently dangerous, if a person of ordinary prudence would, under the circumstances, have obeyed the order, provided he used ordinary care in obeying it.”

So that it is not negligence in and of itself to remain in the employ of another and operate a .defective machine — it may be operated in á negligent manner — and the servant is bound to operate it carefully; but whether it is negligence or not to operate it at all is a question for the jury, and if the circumstances are such that an ordinarily prudent man would continue to operate it, .as is said in the case I 'have last cited, it would not be negligence as -a matter of law. The difference between negligence and assumed risk is very often confused. It .is pointed out very clearly in a decision of the Supreme Court by Judge Shauck from which I will read a few lines later. It does not seem to us, following especially a decision of Judge Taft which I will refer to hereafter, that continuing in the employ under circumstances that this man did, if in the face of such a statute as this, that by so doing, he assumes, as a matter of law, the risk. This statute was passed for the protection of employes; it is a penal statute and to hold that the employe by continuing in the employ of the master under such circumstances can not recover against the master, notwithstanding such statute, is to practically abrogate and wipe out the statute. In the case of Narramore v. Cleveland, C., C. & St. L. Ry. Co., where a similar question arose, Judge Taft says:

“The doctrine of assumption of risk is based upon an implied contract, and it is contrary to public policy to permit an employe and employer by their own implied contract to abrogate or set aside a portion of a penal statute.”

Discussing a similar statute, he also refers to this decision of the Supreme Court of Ohio in the 43 Ohio St., and arrives at the conclusion that the case there was grounded simply on contributory negligence, and the Supreme Court did not decide or intend • to decide that an employe under those circumstances assumed the risk. I will read from this opinion. It was a decision of the Circuit Court of Appeals, before Judges Taft and Lurton, circuit judges, and Thompson, district judge, This case is also found in the 37 C. C. A., 499. Judge Taft, in delivering the opinion, said (on page 302) :

“The only ground for passing such a statute is found in the inequality of terms upon which the railroad company and its servants deal in regard to the dangers of their employment. The manifest legislative -purpose was to1 protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract; and it would entirely defeat this purpose thus to permit the servant ‘to contract the master out’ of the statute. It would certainly be novel for a court to recognize as valid an agreement between two persons that one should violate a criminal statute; and yét, if the assumption of risk is the term of a contract, then the application of it in the ease at bar is to do just that.”

On page 304, quoting the case of Hesse v. R. R. Co., 58 Ohio St., 167, the court say:

“Acquiescence with knowledge is not synonymous with contributory negligence. One having full knowledge of defects in machinery with which he is employed, may yet use the utmost care to avert the dangers which they threaten.”

And near the bottom of page 304 he says:

“Assumption of risk and contributory negligence approximate where the danger is so obvious and imminent that • no ordinarily prudent man would assume the risk of injury therefrom. But where the danger, though present and appreciated, is one which many men are in the habit of assuming, and which prudent men who must earn a living are willing to assume for extra compensation, one who assumes the risk, can not be said to be guilty of contributory negligence, if, having in view the risk of danger assumed, he uses care reasonably commensurate with the risk do avoid injurious consequences.”

It could "not be said as a matter of law that a man was negligent if he continued in the operation of a machine where the cogs were uncovered. On page 305, referring to the Krause case, 53 Ohio St., he says:

“Where the employe, in spite of a warning from his superior, and in the face of the'most palpable danger, exposed himself to certain injury, and then sought to hold his employer liable because he had not employed the statutory methods of protecting him from the danger.”

Before that he says:

“One who does not use such care, 'and who, by reason thereof, suffers injury, is guilty of contributory negligence, and can not .recover, because he, and not the master, causes the injury or because' they jointly cause it. Many authorities hold that contributory negligence is a defense to an action founded on a violation of statutpry duty, and this undoubtedly is the proper view. Such is the case of Krause v. Morgan, 52 Ohio St., 26.”

As I have said, we feel doubly certain in the construction we-put upon the case in the 53d Ohio St., supported by such a tribunal as the Circuit Court of the United States and in an opinion delivered by Judge Taft. A well-reasoned case in this state, and' construing the case in the 53 Ohio St., is a decision by Judge Littleford of the Common Pleas Court of Hamilton County, Case v. Rahn-Mayer-Carpenter Co., 12 Lower Decisions, 597, in which the court holds that Judge Taft put the proper construction upon that case, in holding that it was not one of assumption of risk, but contributory negligence.

Charles A. Thatcher, for plaintiff in error.

Doyle & Lewis and J, W, SchaufeTberger, f-or defendant in error. •

It seems to us that it would practically defeat the purpose of laws of this class to hold that an employe, by continuing in the employ, waived the benefit of this statute-, and hold that by so doing he entered “ into- implied contract with his employer that a penal statute should be waived, abrogated and repealed, so far as that is concerned, and that such a holding would be contrary to public policy. As stated by Judge Taft in this opinion such legislation is enacted not only for the protection of employes, but also in the interest of the public or commonwealth who are interested in protecting men from personal injuries, and should be maintained rather than overthrown by the courts.

There are some exceptions taken to the ruling of the court on the introduction of evidence. A witness was asked, -as appears on page 25 of the record, if it was practicable to have guards over these wheels. This was excluded by the court. We think this should have been -admitted. This was a proper question, and one of the questions in the case; and that it was error to exclude it. But it appears in -other parts of the record that evidence of this kind was admitted, so that error was not very material so far as this record is concerned. But we give our opinion upon it as the case may be tried again.

We think upon the facts of the case, under the law as we interpret it, the plaintiff was entitled to have his case go to the jury. For these reasons the judgment of the court of common pleas will be reversed.


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    UNEARNED WAGES.
    [Circuit Court of Lucas County.]
    P. L. Andrews v. The Lake Shore & Michigan Southern Railroad Company.
    Decided, September, 1905.

      Assignment of Unearned wages — Yalid YPhen Based Upon a Possibility Coupled mth An Interest — Pleading—Presumption as to a Continuing Employment.

    1. Tile doctrine is recognized by an unbroken line of authority that, as between private persons, unearned wages constitute^ a possibility coupled with an interest to which a valid title may be given by assignment. (The Brooks Co. v. Tolman, 6 C. C. — N. S., 137, cited.]
    2. An allegation that the assignor of unearned wages was in the employ of the debtor at the time of the assignment, and' continued in such employment during the time of the earning of the wages for which judgment is asked, sufficiently alleges a contract of employment whereon to- base an assignment of such wages.
    Wildman, J.; Parker, J., and Haynes, J., concur.
   This is a contest «ver a fund. One of the defendants here, Theodore A. Rodijkeit, was plaintiff below; -he sued the railway company and a contest arose between Ida E. Chandler, who had attached certain wages earned by and due to Rodijkeit and one P. L. Andrews, the plaintiff in error. Her right to receive the money was contested by Andrews, who was a defendant below. He filed a pleading in the court of common pleas,, asserting his right to the wages by reason of an assignment which had been made to him by Rodijkeit. The wages at the time of the assignment and for several months thereafter had not been earned, and the question fairly raised is as to whether such an assignment is valid. The court-below evidently deemed that it was not and sustained a demurrer to the pleading of Andrews.

Por a determination of whether or not the demurrer should have been sustained, it is necessary to glance at the cross-petition of Andrews. In substance it alleges:

‘ ‘ On the 22d day of April, 1904, the said plaintiff, Rodijkeit, was in the employ of said defendant, tihe Lake Shore & Michigan Southern Railway Company, and so remained in the employ of said defendant continually up to 'the 25th day of January, 1905. That on said 22d day of April, 1904, said plaintiff, for a valuable consideration, assigned to defendant, P. L. Andrews, .out of the wages: then due, or to become due him from said defendant company, the sum of seventy-five dollars ($75) and that there is now due this 'answering defendant on said assignment, a copy of which is hereto attached and marked Exhibit A. and made a part hereof, the sum of forty-five and sixty one-hundredths dollars ($45.60); that due notice of the execution .and the delivery of said assignment was. given the said defendant, the Lake Shore & Michigan Southern Railway Company, while it was indebted to plaintiff.”

He asks that his 'assignment may. be declared to be a first and best lien on the sunn due the plaintiff from the defendant, the Lake Shore & Michigan Southern Railroad Company, and for judgment for such amount.

The demurrer, of course, admits the truth of all the material statements in the pleading demurred to. The question is an interesting one which might invite, if there were time, consideration of a -large number of cases which we have examined. The question has- not been determined. by any adjudication of the Supreme Court of the state. The Circuit Court of Cuyahoga County passed expressly upon the question in the ease of The Brooks Co. v. Tolman, in 6 C. C. — N. S., 137, the syllabus of which case I will read:

“An assignment of wages or salary to be earned under an existing employment, made in good faith and for a valuable consideration, is valid where the relation between the employe and the employer is such that the .employe may reasonably be expected to earn the wages covered by the contract; and against such a contract a claim for homestead exemption can not prevail. ’ ’

The case seems to be well considered and indicates very careful research of the authorities on the part of the judges making the holding, Marvin, Hale and Winch.

' It has been forcibly argued in this case that the assignment was only of the mere possibility of continuance in the employ; that.no contract of continued employment is alleged in this pleading. That is true, and at first blush the ¡argument seemed to the court to be sound'. We 'have viewed with a good deal of sympathy the decision of the court below. Such an assignment as this is similar in some respects1 to a transfer of the mere expectation of an inheritance by a son, and our Supreme Court has; held that such a sale is invalid. In several cases this principle has been recognized by the Supreme Court of Ohio — in the 7th O. S., 432; 25 O. S., 283; 32 O. S., 502, and. perhaps others. It is true that in the case of father and son, as in the case of employer and employe, there may be some like probability arising out of the existence of the relation which creates a little more than a naked expectation. But the current of authority, we think, favors the validity of assignments1 by employes of wages yet unearned. In 209 Illinois, 252, it was held that the existence ¡of 'the employment at the time of the assignment is sufficient warrant of continued employment and future earnings, and it is not necessary to show a contract for continued employment or service. We find numerous cases where there was no contract for any definite term of employment, and the current of. authority seems to recognize the validity of assignments in such case. We have been unable in ¡our examination of the matter to find any case in conflict with the rule laid down in the 4th Cyclopedia of Law and Procedure, pages 17 to 20:

“Future earnings or salary of a private individual and anticipated profits under existing agreements, may be assigned, although the contract under which the work is being done may be indefinite as-to time of employment and the amount to be paid for the work.
“But in order that there may be an assignment of future earnings it is essential that the expectation of such earnings shall be based upon an existing contract of employment; as without such contract there can not be any valid assignment, either in law or in equity, of wages and salary to be earned in future, for the reason that, under such circumstances, future earnings constitute a mere possibility not coupled with an interest.”

In the case of Grant v. Ludlow, Admr., 8 O. S., 1, we find this language >on page 38, used by Judge Swan:

“Whatever ehoses in action are transmissible by operation of law, are assignable in equity.”

Then he gives the rale stated by Judge Story in a case in 1st Peters, as follows:

“In general it may be affirmed that mere personal torts, which die with the party, and do not survive to his personal representatives, are not capable of passing by assignment; and that vested rights, ad rem and in re, possibilities coupled with an interest, and claims growing out of and adhering to property, may pass by assignment.”

The suggestion which I wish to make is that the learned judge is apparently recognizing' a doctrine that a possibility coupled with an interest is susceptible of assignment, and it will be found that unearned wages under an existing employment are, by the current of authorities, recognized as possibilities coupled with an interest, notwithstanding the decisions of our Supreme Court in the case of &■ son having nothing but an expectation of inheritance, nothing which he may transfer during the life of the father. It seems to us that the drift of authorities is possibly inconsistent with the rules of the assignments of expectations of inheritance, and yet it seems to us an unbroken line and to have established this rule in the case of unearned wages where the rights of private persons are concerned. In the case of public officers the rule seems to be different. I read from 4 Cyclopaedia of Law and Procedure, page 19.

“The assignment by certain classes of public servants, of their unearned salaries or fees of office has been forbidden by statute in England and by act of Congress in the United States. But even in the absence of statute, the great weight of authority, both in England and in the United States, is to the effect that' an .assignment by a public officer of the unearned salary or fees of his office is void as against public policy. The doctrine has been extended so as to forbid, the assignment, by private trustees of expected fees to be earned by the performance of duties of the trust, when such duties and the compensation thereof are prescribed by statute.”

We have a case in Ohio, Porter v. Dunlap, 17 Ohio. St., 591, where the court recognized the validity of an assignment by a school teacher of unearned compensation as an equitable assignment, and held that a subsequent .attempt to draw the fees by the school teacher was in fraud of the assignment and that the person to whom he had assigned should be permitted in equity ito collect the fund.

In the 6th Nisi Prius, 467, the attempted assignment was by one who was not employed at the time of the assignment, and that distinguishes the case from the one at bar. I might say. that there is one citation in the foot note in the 4th Cyclopaedia, on page 17, that at first glance might seem to be in conflict with the prevailing rule. It is a reference to 1st Wallace, but on-an examination of the report we find this ease not in conflict with the drift of authorities; so that we discover no. exception in the adjudication to the enunciation of this rule, that a person who is in the employ of another may assign his wages not then earned, but an attempted assignment of wages which by a possibility may be earned from somebody not then an employer, and where there is no contract for a future employment, is not valid. There is nothing in the' latter case but a mere possibility and, as the authorities say, it is not coupled with an interest.

Now, much against our notions of what would be the better rule in harmony with the principle as to the sale of an expectancy, we feel compelled to differ with the court below. We 1 are not shaken in this view by the fact that there is- no express averment in this ease that there was a contract of employment. It is averred in the cross-petition of Andrews that Rodijkeit was in the employ of the company at the time and that he remained continuously in the employment to and during the time of the earning of the wages sued for.

The term “in the employ” involves the idea of employer and employe, and the expression conveys the notion ■ of a continuing service. To say that one is in the employ of another is as much as to say that he has been employed by- him and is still rendering services involved in the employment. There is nó escape from this. Logically, to say one is in the employ of another, is to say he is not rendering gratuitous services. It involves the idea of a contract of employment. And having that view we think that by a fair construction of the pleading it does allege a contract of employment, and, as I have said, in the Illinois case an existing employment was held to be sufficient to entitle a person to make an assignment of wages not then earned, he 'having a possibility, coupled with an interest. We hold that Rodijkeit could make the assignment which he made. Therefore, there being no other question involved therein, it will be our duty to reverse the judgment of the court below.

I might say, in passing, that the parties — some of them— seem to have the idea, expressed in brief and in argument, that .the rights of the other party, Mrs. Ida A. Chandler, are involved; but it will be noted that Ida A. Chandler has not demurred to this pleading.

The question of her rights is not necessarily before us, so far as this demurrer is concerned. Our ruling upon the demurrer involves only the right of Rodijkeit. He 'brought the suit; he was asking for the fund; he is not asserting Ida A. Chandler’s rights'; he is saying that 'he claims some interest; but he is not asserting her interest.

The judgment of the lower court will be reversed, -and the cause remanded-for further proceedings.


text:
    DAMAGES TO PROPERTY FROM SURFACE WATER..
    [Circuit Court of Hamilton County.]
    City of Cincinnati v. Belle M. Johnson.
    Decided, December 2, 1905.

      Drains — Insufficiency of — Obstruction of — Variance between Pleading and Windings of Jury — Failure of Foreman to Sign Special Findings — Words and Phrases.

    1. The admission in the pleadings as to the sufficiency of a drain, the obstruction of which has caused damage to property, must prevail over a finding to the contrary by the jury.
    2. The construction of a drain by a municipality in such a manner as to obstruct the flow of water through it, is negligence on account of which a property owner can recover for damages sustained.
    2. The failure of the foreman of a jury to sign a special finding is not such an irregularity as to effect any substantial right of parties ■ to the cause.

      i. The use of the word “opinion” by a jury in a special finding is equivalent to a deliberate conclusion and' judgment by the jury upon the evidence of the case.
    G-iffen, J.; Jelke, J., and Swing, J., concur.
   The only allegecl error is the overruling of the motion for judgment notwithstanding the verdict in favor of the plaintiff.

This motion is based upon -two interrogatories and the answers thereto returned by the jury with a general verdict, viz:

“Interrogatory No. 1: Was the proximate cause of the injury to plaintiff’s property the failure of the defendant city to provide drains of sufficient capacity to carry off all the surface water coming to such drains ?
“A. The city did not construct culvert or drains large enough.
“(Signed) William Trimble, Foreman.
“Interrogatory No. 2. Did the damages to plaintiff’s property result solely by reason -of the failure of the city to provide drains of sufficient capacity to carry off all surface water?
“A. In our opinion it did.
“(Signed) William Trimble, Foreman.”

The allegations of negligence contained in the 'amended petition, so far as they relate to the insufficiency of the drains; are in substance as follows: The said city constructed a culvert from the east to the west side of Brown street at a point about fifty to seventyi-five feet south of the premises of plaintiff, which was capable of carrying off the water which would naturally flow to it were it kept unobstructed; that thereafter an extension to the west end of said culvert was constructed by means, of a sewer pipe twenty-one (21) inches in diameter, which was wholly and palpably inadequate to carry off the water from the culvert.

It appears from these allegations that there was in reality only one drain, denominated a culvert, and its subsequent extension by adding a sewer pipe, although the jury have treated it as two or more distinct drains.

,It is also found in answer to the first interrogatory that the culvert was not large enough, whereas the pleadings admit. that it was sufficient for all purposes and continued to be so until the extension was made. The admission of the fact in the pleadings must prevail over the findings by the jury to the contrary. Oliver v. Moore and Wife, 23 O.S., 473.

Counsel, however, make no claim under Interrogatory No. 1, but rely solely upon No. 2, claiming that it comes within the principle announced in the case .of Springfield v. Spence, 39 O. S., that—

“A municipal corporation is. not liable for simply failing to provide drainage for surface water.”

While the damage 'was caused, as the jury have found, by the failure to provide a drain or drains of sufficient capacity, the negligence consisted in the manner in which they were constructed by joining a sewer pipe only twenty-one inches in diameter onto the culvert five (5) feet in diameter, and undertaking to carry off all the water that might accumulate in the culvert through the pipe with -a diameter about one-third that .of the culvert. This was not only a failure to provide drains of sufficient capacity, but was a deliberate obstruction to the flow of water in the culvert, and amounted to negligence in no ordinary degree, for which the plaintiff was entitled to recover.

J. V.-Qompbell, for the city.

Johnson <& Levy, contra.

It is claimed by the defendant in error that the special finding should not be considered for the reason that it was not signed by the foreman of the jury until after the jury was discharged. While it is an irregularity to receive the special finding not signed by the foreman or signed after the jury has been discharged, yet it is not such as'to affect any substantia] right of the party complaining. Hardy v. State, 19 O. S., 579.

• It is also claimed that the answer is not distinct and certain because of the use of the word ‘1 opinion, ’ ’ but this is equivalent to saying that it is the deliberate conclusion and judgment of the jury, upon the evidence in the case.

Judgment will be affirmed.


text:
    LIABILITY FOR. SHOOTING BY AR.MED AGENT.
    [Circuit Court of Allen County.]
    John D. Blakely v. Hayes Greer et al.
    Decided, November, 1905.

      Tort — Of an Agent — Armed 6y His Employers — Shoots One Rightfully on the Premises — Mistake of Judgment — Pleading.
    Where, in an office occupied by a railroad company, a telegraph company and an express company, their joint agent is provided by them with a revolver for the protection of the property entrusted to his care, and while thus armed and acting in the line of duty shoots at and wounds one entering the bui'.ding on lawful business, his mistake of judgment must be charged against his employers, and an action for damages on account of the injury suffered will lie against the companies and agent jointly.
    VOLLRATH, J.; NORRIS, J., concurs.
   The plaintiff in error filed his amended petition in the common pleas court against Hayes Greer, the Lake Erie & Western Railway Company, the Western Union Telegraph Co., and the U. S. Express Company, and avers in substance that the defendant, Greer, is the servant and agent of the other defendants and was such on the night of the 13th day of December, 1901, in the common office of said defendants in the passenger depot building of said railway companies at the village of Bluffton, Ohio, and engaged within the scope and line of his duties as such agent in charge of said office, etc. That prior to and at the time aforesaid, said Greer as such servant and agent aforesaid, had been and was armed by the direction and with the consent of said last named’ defendants with a deadly weapon, ta-wit, a loaded revolver, which had been furnished to said Greer by the other defendants above named, for the protection of their said servant and their property interests entrusted to his care; that said Greer at said time and long time prior thereto, was of a very nervous and excitable nature or disposition and reckless in his conduct and an improper and excitable person or servant to be so entrusted and charged, all of which facts were known or could have been known to said defendant companies but were all unknown to plaintiff; that notwithstanding the said facts and knowledge and notice said defendant companies left said depot building and common office, etc., in charge of said Greer, and' armed and permitted him to be armed and assented to his being armed with a deadly weapon and in the night season and in said office and station and for the purpose aforesaid. • Said depot building and passenger room therein were lighted and the doors thereof unlocked in the night season and open for business, and that on the night of said 13th' day of December, 1901, while the said Hayes Greer, as such servant and agent of said defendant companies, was engaged in .the line and scope of his duties and authority for said defendant companies, in charge of their said common office, and 'while acting for said defendants in transacting their business, caring for and looking after and protecting their property interests, plaintiff entered said passenger depot on lawful business, holding a lantern in one hand, and just after entering the door of said passenger depot, for the purpose aforesaid, while in the act of crossing the same, said defendant, Hayes Greer, then in said building and engaged as aforesaid and while acting for said defendants within the scope of his authority and line of business for said defendant companies, and as their agent and servant, suddenly, without warning or notice, recklessly, wrongfully and negligently, discharged ¡said loaded revolver at the plaintiff, shooting and seriously wounding the plaintiff in the left shoulder and arm and causing severe injury and pain. Plaintiff claims to have suffered great loss and to be permanently injured. Plaintiff further claims that said injury thus caused was so caused by the joint and concurring negligence of each of said defendants and asks for judgment therefor in the sum of $20,000.

To this amended petition a general demurrer was interposed by the defendants, which demurrer was sustained by the court of common pleas, and plaintiff not desiring to plead further, said’ amended petition was dismissed as to said defendant companies at the costs of the plaintiff. Judgment was rendered accordingly, and this proceeding is prosecuted here to reverse said judgment of the court of common pleas.

It is claimed by the plaintiff in error that the common pleas court erred in sustaining said demurrer, and we think that this contention is well founded. The petition avers that the deadly weapon with which the mischief was done was given to the defendant, Greer, by said defendant companies for the purpose of being used against improper intruders, or, in other words, to protect said building and business interests. Presumably this meant robbers, or burglars, or any one that might seek illegally to trespass upon the property rights of the defendant companies. The revolver was given to Greer to be used for the very purpose for which he thought that he did use it, to-wit, to shoot unlawful intruders. That Greer made a mistake in directing his attack against Blakely •does not alter the material facts in the case that this gun had been entrusted to Greer to shoot with and .to be used, if necessary, against human beings ■and, in the nature of things, the determination of the necessity for such use was left by said companies to the judgment of said Greer. He exercised that judgment when 'he fired upon Blakely. He was acting within the scope of his authority, fie was authorized to shoot if occasion required it, according to his judgment: His judgment was at fault. This can not be charged to Blakely but must be charged to Greer and his employers. This principle is illustrated more or less fully in most of the authorities cited by counsel in this case. In the case of The Railway Company v. Wetmore, 19 O. S., 110, it is held that a master is not responsible for the wrongful act of his servant unless the act be done in execution of the authority, expressed or implied, given by the master.

In that case a baggage master of the railroad company being angered by abusive language of Wetmore, picked up a hatchet and struck him. It was held that such act was-not authorized by the master. The hatchet was furnished for a wholly different purpose. The hatchet was not furnished to strike people with, nor as a means of defense or protection. In the case at bar, however, the revolver was furnished to be used as Greer did use it, subject only to a condition dependent upon the judgment of Greer, namely, that the person shot at was an unlawful in-, trader, and Greer’s mistake of judgment in this matter must be ehargable to his employers.

In the case of Stranahan Bros. Catering Co. v. Coit, the same principle is laid down. See also the case of The Nelson Business College Co. v. Lloyd, 60 O. S., 448; Judge Minshall, in deciding the case uses the following language:

“Notwithstanding some earlier cases, it is, we think, clearly settled that the master is liable for the willful, or even malicious, as well as negligent acts of the servant, done in the course of his employment and within the scope of his authority. ” , ,

Th same principle is laid down in the case of The Lima Ry. Co. v. Littler, a case which went up from this county. It is useless to multiply authorities. The sole question under 'the pleadings to be determined in this ease is: Was Greer, at the time he fired the shot, in the service of, and acting for his master and within the scope of his authority? As indicated above, it is the judgment of this court that he was so acting. Under these circumstances we hold that the court erred in sustaining the demurrer to' the amended petition and for this reason the judgment of the court of common pleas is reversed at the costs of the defendants in error. The demurrer is overruled, judgment for cos’ts and execution awarded and cause remanded for execution and further proceedings.

Welty & Downing, for plaintiff in error.

W. B. Richie, W. H. Leeie and Cable & Pwrmonber, for defendant in error.


text:
    RESERVATIONS IN SLEEPING CARS.
    LCircuit Court of Richland County.]
    Pullman Company v. B. W. Willett.

    Decided, January, 1905.

      Agency — May be Established by Evidence of Custom — In a Suit on a Specialty — Raihoay Age : of Sleeping Car Company — Damages for Failure to Give Possession of a Reserved Apartment — Breach of Contract — V erdict — Waiver,
    1. In a suit upon a specialty, evidence of uniform custom of transacting business with the public with reference to the matter in dispute is admissible when introduced for the purpose of showing an agent's authority to make the contract in question on behalf of his principal.
    2. An agency is sufficiently proved if it be shown that the principal has led the public to believe that it exists by a continued course of business transactions; and authority of a railroad ticket agent to reserve berths of a sleeping car company for passengers on a train may be proved by showing prior ratification of reservations made under similar circumstances by such agent.

      3. Compensatory damages may be recovered for physical inconvenience, discomfort and pain resulting from a breach of contract to reserve a drawing room in a sleeping car for a man and his wife, who in consequence are compelled to sit up the greater part of the night and to change cars twice, and .a verdict of $125 recovered therefor is not excessive.
    4. The fact that the plaintiff in such a case demanded his ticket from , the conductor upon learning that he could not be given the aceommodations for which he had contracted, which demand was'refused, does not constitute such a waiver of his rights as will relieve the company from liability.
    5. Where a witness, in testifying as to a conversation had by telephone, makes a positive statement as to who it was with whom he conversed, and he -is not cross-examined- as to the identity of the person at the other end of the wire, the conversation is admissible notwithstanding the uncertainty which may exist as to the identity of the other party speaking.
    Donahue, J.; Voorhees, J., and McCarty, J., concur.

      Affirmed by the Supreme Court without report; see Pullman v. Willett, 72 Ohio State, 690.

   Heard on error to Court of Common Pleas of Riicbland County.

This proceeding in error is brought to reverse the judgment of the common pleas court in an action in that court, wherein B. W. Willett -sued the Pullman Company for dam-ages for breach of contract.

The petition avers that the defendant company entered into a contract with the plaintiff, by the terms of which he was to be furnished a drawing room on one of the defendant’s cars, for the use of himself and wife, from Shelby, Ohio, to New York, which car was attached to a train on the Clev., C. , C. & St. L. Railway- Company’s lines; that in pursuance of said agreement he then purchased transportation- -o-ver said company’s lines to New York; that said defendant company failed and neglected to- keep its contract in that behalf to furnish him with said drawing room, and that he and his bride, he having been married- on that day, were compelled to occupy the porter’s apartment from Shelby to Cleveland, and at Cleveland, at 1:45 a. m., they were compelled to change to another car in which they obtained a berth to Buffalo,' and at 5 A. M. they were compelled to change again- to a chair car, in which latter car they remained until they reached New York. He av-ers that by reason of such failure on the part of • said company he suffered physical pain, inconvenience, humiliation, mental anguish and suffering, to his damage in the sum of $1,999, for which he prays judgment. '

The effect of defendant’s answer is to deny that any ¡s'p.ch contract was made as relied upon in plaintiff’s petition, ijnd upon the issue joined the cause was tried to a jury, resulting in a verdict for plaintiff for $125 and judgment thereon.

The record discloses that a conversation over the telephone was given in ‘evidence by the plaintiff, over the objection of the defendant, and this is assigned as error. It is perhaps true that there ought to have been a little more certainty as to the identification of the speaker in this telephone communication, but Mr. Willett says, “I received a telephone message that he had word from the main office that they had this reservation for me-for that train.” It does clearly appear from the evidence admitted just prior to this answer, that he referred to Mr. Close, who was acting in some capacity in the railway office at Shelby. True, he does not say hew he knew it was Mr. Close that was talking, although he used the pronoun “ he. ” If counsel desired to show that he could not be certain as to the identity of the individual talking, then it was the duty of counsel to cross-examine him upon this point, and show by this cross-examination that he did not know and could not know with any degree of certainty as to the identity of the person speaking. But as it now stands the record discloses that he swore positively that it was Mr. Close, and therefore the conversation was admissible.

But this telephone communication has very little if anything to do with the issue in this ease. It is merely cumulative evidence at most, and as there is no conflict of evidence in this record we should not hold it prejudicial error, even though it were erroneously admitted.

There was also a telegram admitted in evidence, o-ver the objection of counsel for defendant, signed by the initials of Warren J. Lynch, general passenger agent of the Big Four.

It is contended, first, that this was not the original telegram, that the original was in the telegraph office at Cincinnati, and that this paper offered in -evidence was a mere copy. This telegram was not sent directly to Mr. Willett, but w-as handed him by Mr. Close, either as representing Mr. Lynch or the Pullman Company, or the railway company, whichever it may determine to be, but to all intents and purposes, so far as Mr. Willett is concerned, it is the original telegram that was handed him and the one upon which he had a right to rely, for this telegram may bind the Pullman Company no< matter whether it was a true copy of the one on file in Cincinnati or not. So that we think the telegram was properly admitted in evidence so far as this objection is concerned.

But, it is urged, that there is no evidence showing any authority on the part of Lynch, Close or any other railroad official to bind the Pullman Company. It is in evidence, however, ■that this was the usual and customary .manner of procuring apartments on the Pullman Company’s ears at Shelby, Ohio, and that these railway agents were in the habit in the usual course of business of making such contract for and on behalf of the Pullman Company, and that Mr. Willett had theretofore ■’transacted the same character of business with these agents, and the Pullman Company had always ratified their authority and fulfilled the contract made by them. So that if this evidence is competent, then it would appear that there is some evidence touching the authority of these railway officials to contract for the Pullman company.

It is insisted by the plaintiff in error that the admission of this evidence of custom was prejudicial error, and if that be true, then, of course, all conversations with Mr. Close, either over the telephone or otherwise, and the admissions of the telegrams, would be error, because of the failure of the plaintiff below to show authority on the part of these individuals to speak and act for the Pullman Company.

It is contended that plaintiff sues upon a specialty and that therefore he can not recover under, a custom, but must prove the contract averred in the petition. It does not appear -that this custom has been shown for the purpose of showing the terms of the contract, but on the contrary only for the purpose of showing the authority of these agents to make the contract on the part of the Pullman Company. If the Pullman Company had been transacting business through the railway officials at Shelby, Ohio, or through Mr. Lynch, the general passenger agent of the railway company, then, whether there was'any such contract of agency between these parties or not,'would not be important, for if a person holds out another to the public as his agent he is bound by the acts of that individual, whether he in fact be such agent or not, and the public 'dealing with such agents are not required to first determine the nature and extent of their authority. It is sufficient if the alleged principal has by his conduct induced' the public to deal with such person as his agent, and this inducement may be by overt act or words, or by long continued course of business transaction in ratifying, indorsing and fulfilling contracts of such persons made by them on behalf of such principal.

We therefore think this evidence was properly admitted and did show the authority of these railway officials to enter into this contract for and on behalf of the Pullman Company, and therefore the conversations with these persons and telegram were properly admitted in evidence.

It is further contended, that the court erred’in its charge in not' clearly and fully stating the issue to the jury. This assignment of error we do not think is well taken. It does not appear from the charge that the jury was fairly and fully instructed as to the issue joined.

It is further contended that the court erred in its charge touching the rule of damages, in stating that plaintiff could recover for the mental anguish suffered or endured by reason of such breach of contract. We think this is the correct rule in this case. The plaintiff does show, by his evidence, that he suffered physical inconvenience and discomfort and the consequent physical pain attendant thereon is sufficient to support his claim for compensatory damages, which includes damages for mental suffering and humiliation, although it is true that without such basis of recovery, mental anguish alone would not be sufficient to support the action.

It is further contended that the damages awarded were excessive. We think not. The peculiar circumstances of this case were properly .matter for the consideration of the jury. The damages for the deprivation of the comforts, conveniences and privacy for which he had contracted and agreed t'o pay are not to be measured by the amount to be paid therefor. He could have had cheaper accommodations had he so- desired, but that he wanted these accommodations under the circumstances of this case was but natural and commendable, and we do not think that the record fails to show any damages, but, on the contrary it fully sustains the- verdict -and would, in our opinion, sustain even a larger verdict -had the jury thought proper to fix a larger amount.

Cummings, McBride & Wolfe, for plaintiff -in error.

Kerr <& La Dow, for defendant in error.

Some complaint is made that he demanded -his tickets from the railroad conductor, instead of the Pullman conductor. This was certainly the proper person upon whom to make demand for the return of his railway tickets, because that conductor was the one who had those tickets and was representing the railroad company, and the Pullman Company had nothing to do with that contract, so ‘that if the railroad company would not return the tickets there was nothing left- for him to- do but to accept the accommodations offered by the Pullman Company, in place of .the -accommodations that it had contracted to furnish him. This company might have reduced these damages very much by procuring the railway company to return to- him his railroad tickets at Cleveland, so that he might stop over there until a later train, but this was not done; on the contrary, the railroad company refused so to do.

Finding no -error in this record to the prejudice of plaintiff in error, the judgment of the common pleas- court is ,affirmed, with, costs, but without penalty, -and -the -case remanded for execution. Exceptions -of plaintiff in -error noted.