author: HOUCK, J.

text:
    PARENT AND CHILD
    [Knox (5th) Court of Appeals,
    March 25, 1922.]
    Shields, Patterson and Houck, JJ.
    Donald C. Sheffer v. May M. Sheffer.
    Deed from Adopted Son to Foster Mother Executed on Day of Attaining Majority Invalid for Concealment of Said Mother.
    Where the evidential facts and outstanding circumstances clearly lead to the conclusion that a deed given by an adopted son to his foster mother the day after he became of age, was executed without knowledge of his rights in the estate of his late foster father and because of unquestioning confidence in his foster mother, a case is presented which requires a court of equity to set the deed aside for undue influence and fraud on the part of the foster mother who remained silent as to the son’s rights but was active in securing the execution of the deed.
    Appeal.

      Ewalt & Blair, for plaintiff.

      C. L. Bermont and B. L. Carr, for defendant.
   HOUCK, J.

The plaintiff’s action is to set aside a deed given by him to the defendant. The deed in question was executed by the plaintiff the next day after he arrived at the age of twenty-one years. The plaintiff is the adopted son of the defendant and her husband, James Berry Sheffer, now deceased.

We do not think it necessary to set out the allegations of the petition, but deem it sufficient to say that the question raised by the pleadings, the answer being a general denial, is: did the defendant obtain the deed to the real estate described therein from the plaintiff by means of fraud and undue influence?— the plaintiff relying upon his claim of fraud and undue influence, which is denied by the defendant. Upon this issue the question was submitted to this court upon the testimony which was taken in the court below, and is here in the form of a typewritten transcript.

This case is an important one, and we have given it careful, thoughtful and laborious consideration.

The question here involved, and upon which this lawsuit must be determined, is one of fact, namely: did the defendant obtain the deed for the real estate in question by means of fraud and undue influence practiced by said defendant upon plaintiff? This question must and will be answered in the light of the proven facts, as found in the transcript of the testimony. The burden of proof is upon the plaintiff, and he must satisfy a court of equity that the claim he makes is true.

The plaintiff was the adopted son of the defendant. He had been under the parental roof of the defendant since his adoption when a mere child. They had lived together in peace, harmony and good will, until a few months after the plaintiff made the deed to the defendant. The evidence clearly satisfies us that plaintiff had every confidence in the defendant, and always, by act, deed and thought seemed to love his mother and respect her wishes. The relationship of parent and child existed, and the law required of the parent the fullest protection and care from her to her minor son, not only in a moral and social way, but likewise in her business transactions with him.

From the evidential facts and outstanding circumstances in the case we are led to but one conclusion which is that, from the death of James Berry Sheffer, the defendant had in mind to secure for herself the interest and legal rights of the plaintiff in the estate of his foster father, James Berry Sheffer. This commenced the day of the funeral of James Berry Sheffer, just after they returned from the cemetery to the home of defendant, where said defendant produced an unexecuted will of her husband, and read only certain parts thereof. This continued, by conversations and acts and statements, and what to us appears to have been a plan on the part of the defendant to secure from plaintiff his rights in said estate, and without giving any valuable consideration therefor. Her acts, conversation, and general demeanor, as shown by the evidence, and the influence exerted over the plaintiff, were not such as would impress a court of equity that the mother was putting a protecting arm around her minor son, in such a way and manner as to protect his property interests in the estate of his foster father, James Berry Sheffer; but, upon the other hand, were of such a character as to fully establish the truthfulness of all of the material facts and allegations set forth and stated in plaintiff’s petition.

If the testimony is to be relied upon, the real mischief in this ease was not done after the plaintiff arrived at full age, but before. At the time of the execution of the deed he did not know the value and extent of his interest in the estate he conveyed, as all this time, and from the death of his father, his mother had full knowledge of it, but did not disclose the same to him. This, we think, was not only her moral but her legal duty as well — to have disclosed to her son full knowledge of the extent and value of his interest in his father’s estate. The relationship that existed between plaintiff and defendant was that of parent and child, and the acts and conduct of the mother in this case are certainly not such as would satisfy a court of her good faith prior to and at the time of the execution of the deed now sought to be set aside.

A court of equity must and does guard with extreme jealousy such transactions between parties standing in the relationship that appears in this ease. It is the duty of chancellors to protect the weak as against the strong, and to see that equity and justice is done all parties when not only legal but equitable rights are to be determined.

It is shown by the evidence contained in the transcript of testimony that the benefits obtained by the defendant in the transfer of plaintiff’s interest in the estate of his father were not conveyed understandingly, and with a full knowledge of all his rights therein. However, his mother had full knowledge of this, and we find by her silence, together with all of the other facts disclosed, that it clearly indicates such conduct on her part as warrants the granting of the relief prayed for in plaintiff’s petition.

"We can not free ourselves from the close moral and legal relationship that existed betwen plaintiff and defendant, the motherly influence that was exerted by defendant over plaintiff, and the failure of the' defendant in the end to properly use same at the very time in the life of her son when he most needed the guidance and protection of a mother, is such as to fully establish the claim of the son that he parted with his interest in his father’s estate, not of his own free will and accord, but by reason of the power and undue influence and fraud practiced on him by his mother.

Further comment is unnecessary, and it follows that the judgment of this court is that the deed in question be set aside, and plaintiff is hereby granted all the relief prayed for in his petition.

Shields and Patterson, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    WILLS
    [Hamilton (1st) Court of Appeals,
    April 15, 1918.]
    Jones, Jones and Hamilton, JJ.

      William A. Stark, Tr. v. Charles E. Marsh et al.
    Estate Devised Vests in Remaindermen Subject to Divestment by Alternative Clause.
    A devise of a life estate to testator’s daughter, to vest at her death in the lawful issue of her body and in the failure of such issue to descend to certain grandsons or survivor of them vests the remainder in such grandsons subject to divestment by the daughter’s leaving issue, or the condition of survivorship existing among the grandsons at the death of the life tenant. Since the life tenant never married the grandsons were never divested of their estate therein notwithstanding they all died before the life tenant.

      líolñ. A. Taft, for appellant.

      W. S. Little and Louis N. GatcJi, for plaintiff.

      W. F. Fox, for Edna and Eva Marsb.

      Owen N. Kinney, for Blanche Marsh Salway and Chas. E. Marsh.

       Motion to certify overruled by Supreme Court, November 12, 1918.

   JONES, J.

This is' an action brought by the trustee under the will of Elbert Marsh, for the construction of said will. It was heard in this court on appeal taken by Ida Hamilton Roberts, granddaughter of said testator, from the decision of the court of common pleas.

A fund of about thirteen thousand dollars, concerning the distribution of which this controversy relates, represents the proceeds of the sale of one-third of testator’s real estate, devised for life to his daughter Martha E. Marsh, who received the income thereof until the date of her death in December, 1915, at the age of eighty-one years.

Testator’s will was executed August 11,1872, and he died in March, 1878, leaving three living children, Martha E. Marsh, Augustus W. Marsh and Charles E. Marsh; and four grandchildren, Charles A., William H. and Edward E. Marsh, children of his son Augustus W. Marsh; and Ida Hamilton, who after-wards by marriage becam'e Ida Hamilton Roberts and who was the only child of a deceased daughter, and is the appellant in this case.

At the time of the making of the will Martha B. Marsh was forty-two years of age and unmarried. The three sons of August were none of them at that time more than fifteen years of age; they all died prior to the death of Martha E. Marsh, as follows: Edward, January 15, 1899; William, May 9, 1910; and Charles A., September 6, 1910. Edward left two children; Edna Marsh and Eva Marsh Ford. Charles A., left two children: Charles E. Marsh and Blanche M. Salway. And William died childless. Martha E. Marsh never married and died without issue.

The clause requiring construction is found in the fifth item of the will, as follows:

“ * * * The remainder in the portions thus devised to my daughter and granddaughter, shall at their respective deaths, vest in the lawful issue of their respective bodies and in default of said issue, then the same shall descend to and vest in my said three grandsons, sons of my son Augustus, the survivors or survivor of them.” * * *

Appellant contends that because none of the three sons of August survived their aunt Martha E. Marsh, the life tenant, that testator must be held to have died intestate as to this fund.

The two children of Edward E. Marsh and the two children of Charles A. Marsh, appellees, contend that this clause created a vested remainder in fee simple in their respective fathers and their childless uncle William Marsh, and that they together inherit from their fathers and uncle, respectively, the entire fee simple of the real estate which is now represented by this fund to be distributed.

In the construction of a will the sole purpose of the court should be to ascertain and carry out the intention of the testator. Such intention must be ascertained from the words contained in the will. Where the intention remains in doubt, resort for aid must be had to settled rules of construction, but they can not control if they are in conflict with the apparent intention of the testator. Townsend v. Townsend, 25 Ohio St. 477; Linton v. Laycock, 33 Ohio St. 128; Barr v. Denney, 79 Ohio St. 358 [87 N. E. 267].

The will is long and involved and an exhaustive effort is shown in the endeavor to meet every possible contingency, clearly showing the desire on the part of the testator to leave no part of his estate undisposed of by his will or to provide in any way for his son Charles E. Marsh or his children. It shows, however, an intention to divide the entire estate into three equal parts, and to give one-third of his real estate for life only to each of the two female lines, to-wit, his daughter Martha E. Marsh, and his granddaughter Ida Hamilton Roberts, sole representative of a deceased daughter, and the other one-third to the three sons of his son Augustus in fee simple subject to certain interests given Augustus therein.

It also evinces an intention to give the share of his daughter -Martha, on her death without issue, to the same three grandsons, and it make the same provision as to his granddaughter, the appellant.

In addition to this apparent intention shown in the will we must consider the legal presumption against intestacy found in the policy of the law, unless no other construction is possible. Collier v. Collier, 3 Ohio St. 74; Davis v. Corwine, 25 Ohio St. 668, 675; Fulton Trust Co. v. Phillips, 218 N. Y., 573 [113 N. E. 558].

Estates created by will under the policy of the law will be regarded as vested rather than contingent unless the contrary intention is apparent from the context of the will. The estate in remainder, created by the will at the death of the life-tenant without issue seems to have all the attributes of a vested remainder. Linton v. Laycock, Supra; Gilpin v. Williams, 25 Ohio St. 283; Bolton v. Bank, 50 Ohio St. 290 [33 N. E. 1115] ; Beckley v. Leffingwell, 57 Conn., 163 [17 Atl. 766]; Mercantile Bank v. Ballard, 83 Ky. 481 [7 Ky. L. Rep. 478; 4 Am. St. 160] ; Patterson v. Hennessey, 85 N. Y., 91, 104.

“Vested interests liable to divestment are preferred, in construction, to interests contingent.” I Schouler, Wills, 5th Ed., Sec. 562, p. 724.

The estate in remainder vested in the sons of Augustus was subject to being divested upon the happening of one of two conditions: one that Martha E. Marsh leave issue at her death; the other condition was the element of survivorship provided for among the three brothers at the death of the life tenant without issue. This element of survivorship is all that raises any question of doubt as to the meaning of the clause. If these words had been omitted there would be no question but that a vested remainder was given to the three grandsons, subject, to divestment only upon the death of the life tenant with issue surviving her.

It will be observed that the clause relating to survivorship is in the alternative and operates only in case one or more, and not all, of the brothers survive the life tenant. If that case had arisen there is no question but that the one or two brothers who died before the life tenant, leaving the one or two surviving her, would be divested of all interest in the remainder in favor of the survivor or survivors. But none of the three survived the life tenant; the clause became inoperative and fails in any way to affect or change the title in fee simple in remainder that had already vested in these three brothers under the will, because while the words “heirs” or other words of inheritance are not used here or anywhere in the will with reference to this remainder in those three grandsons, they would take a fee in remainder under the statute. Section 10580 G~. C.

The case of Jeffers v. Lampson, 10 Ohio St. 101, is directly in point, and particularly that part of the opinion found at page 104 quoting from the old case of Harrison v. Foreman, 5 Ves. Jr., 207. The cases of Sturgess v. Pearson, 4 Maddocks, 411, and Belk v. Slack, 1 Keen, 238, are also directly in point, as is Hills v. Bernard, 152 Mass. 67 [25 N. E. 96; 9 L. R. A. 211]; also Acree v. Dabney, 133 Ala., 437 [32 So. 127].

The ease of Richardson v. Cincinnati Stockyards Co., 11 Dec. 367 (8 N. P. 213), relied upon by appellant, is not contrary to this doctrine. In that case certain land was devised by testator to his daughter Jane Richardson, and “the heirs of her body forever,”

“but in case of the death of said Jane Richardson without surviving issue of her body, then the property hereby to her bequeathed at the death of my said wife shall revert back to and be equally divided amongst my surviving children, share and share alike.”

Jane Biehardson survived all her brothers and sister and never had any children. It was held that—

“the reversion in the estate passed to the heirs of testator subject to be divested of it by Jane Biehardson dying with issue of her body or with children of the testator surviving her, an event which it is now known can ever happen, ’ ’

and the title of the property was therefore east upon the heirs of testator. This holding followed the law as laid down in Gilpin v. Williams, 25 Ohio St. 283, and is not inconsistent with the holding in this case.

Among the cases relied upon by appellant are Sinton v. Boyd, 19 Ohio St. 30; Smith v. Block, 29 Ohio St. 488; Richey v. Johnson, 30 Ohio St. 288; and Hamilton v. Rodgers, 38 Ohio St. 242. None of these cases however disclose a situation similar to the instant ease, or lay down a rule that controls it.

In Sinton v. Boyd, where testator gave a life estate to his wife after her death to be divided equally amongst his children or the survivors of them, it was held that the daughter of a son who failed to survive his mother took no share where other children survived her.

In Smith v. Block, where real estate was conveyed to a mother for life and after her death to her surviving children by E, her husband and after the death of all said children to E, in fee simple, it was held that only such children as survived the mother took an estate, and that E took a vested remainder in fee subject to the intervening contingent estate of the children.

In Richey v. Johnson there was a direction to the executors to sell and divide after the death of testator’s wife, equally between such of his brothers and sisters as might then be living, and the issue of those dead, per stirpes. There were survivors within the class thus divided who took the property.

In Hamilton v. Rodgers testator devised his estate to trustees to pay certain annuities out of the income, and to distribute after the ‘ ‘ final cessation ’ ’ of such annuities. It was held that the estate did not vest until the time fixed for distribution, which had not yet arrived.

Disregarding the alternative clause as to survivorship, which we have seen has become inoperative, the rule laid down in Linton v. Laycock, 33 Ohio St. 128, would apply and the language under construction would be held to have vested a remainder in fee simple in the three sons of Augustus "W. Marsh, to-wit, Charles A., William H., and Edward E. Marsh.

William H. Marsh having died intestate leaving no widow or children, his one-third interest would pass by descent to his brother Charles A. Marsh and Edna Marsh and Eva Marsh Ford the children of his brother Edward E. Marsh.

Edward E. Marsh and Charles A. Marsh having also each died intestate leaving two children, these children would inherit the interests of their respective fathers, and therefore each of the four children, to-wit: Edna Marsh, Eva Marsh Ford, Charles E. Marsh and Blanche Marsh Salway would be entitled to one-fourth interest in said fund.

A decree may be taken accordingly.

Hamilton, J., concurs.


author: GRANT, J.

text:
    NEGLIGENCE
    [Cuyahoga (8th) Court of Appeals,
    January 13, 1919.]
    Grant, Dunlap and Washburn, JJ).
    George K. Brierley et al v. Henry W. Burton, Admr.
    1. Doctrine of Last Chance not Applicable when Contributory Negligence First Intervenes.
    The humanitarian doctrine of last chance is not applicable in a case in which contributory negligence had first intervened, when the undisputed testimony tends strongly to show that the rescue of the decedent from his position of peril would have been physically impossible within the time and under the circumstances presented at the moment his position of danger was discovered.
    2. Expert Testimony that Quick, Active Man Might have Effected Rescue of Decedent does not Render Last Chance Doctrine Applicable.
    Nor would the rule embodied in said doctrine be rendered applicable by adopting the view of an expert, called on behalf of the plaintiff, that a quick and active man might have effected a rescue, when the work was nót of a character requiring a man of that type, and had such a man been on the job he could only have effected a rescue by determining what to do and going through several motions within the space of two seconds and at the risk of his own life or serious injury.

      Edward Hobday, for plaintiffs in error.

      Tolies, Hogsett, Ginn & Morley, for defendant in error.
   GRANT, J.

The parties will be designated here as they were below.

Plaintiff’s intestate came to his death as a result of being crushed in an elevator located on premises owned and controlled by the defendant company.

The trial was to a jury. There was a verdict for the plaintiff, upon which the judgment brought here for review was rendered, after a motion for a new trial had been overruled.

At the end of the plaintiff’s case a motion was made by the defendant for a directed verdict in its favor, which was denied and an exception was taken. As this motion was not renewed at the end of all the testimony taken, the exception is not now in that particular form available to the complaining party.

In the view, however, that we have concluded to take of the case, the form of the objection to the judgment under review is not material. The substance of the complaint made to us here is that there is no evidence shown in the record that can be said to support the judgment, a question of course involved in the one raised by the overruled motion for a new trial.

The intestate at the time of his death was of full age. He was not then in the employ of the defendant, or engaged in its service in going into the elevator. He was not there upon any expressed invitation of the defendant. It is claimed in the brief for the defendant in error that there is evidence tending to show an implied invitation. But we do not regard that question, or any question as to the status of the decedent while on the elevator ■ — whether as there by mere license or upon a supposed invitation —as material to the present consideration. It is allowed on all hands that if the plaintiff was entitled to recover at all in the action, it must be because his intestate came to his death while under the protection of the so-called rule of last chance, and by that rule his standing here is to be conclusively tested and ascertained.

The court below, upon the trial, limited the plaintiff’s right of recovery, if he had any, to the sixth specification of negligence of his petition, which was pleaded as follows:

“Defendants failed and neglected to use reasonable care in stopping said elevator so maintained and operated as aforesaid, before decedent was killed thereon, after they saw decedent’s position of danger, and in this respect defendants were guilty of gross and wilful negligence which operated proximately to cause decedent’s death.”

This issue, thus formulated, manifestly called for the application of the rule mentioned and precluded the consideration of any other. The law in Ohio upon this recognized doctrine of liability is settled, and will be discussed later. Our present concern is to gather from the record just what the matter of fact in the ease is, and from thence deduce a conclusion as to whether, under the doctrine, the plaintiff has brought his intestate within the sweep of its shield of protection.

The sum total of the facts — making up the single controlling and decisive fact upon which our judgment will depend — is not, as we regard the whole case, in dispute. Its constituent evidence, so far as this is material here, is as follows:

The elevator in question was a freight elevator. It was operated in part by manipulation and partly automatically. The operator in charge was an employe of the defendant company, Joseph by name.

On the day. of his death the decedent came to the premises with some material sent by -his employer to the defendant company, which he delivered by carrying it up to the third floor of the building, using the stairway for that purpose. He was there told that there were some other materials there, to be taken back to his master — these then being on the third floor. They were already loaded on a truck. Joseph, the defendant’s elevator operator, was then told by one of his employers to take this truck load down on the elevator, which he proceeded to do by wheeling the truck to the shaft, lifted the gate and so manipulated the cable appliance as to bring the elevator platform up from the floor below. When it reached the third floor level Joseph did not stop it, although it seems he tried to do so, but the platform kept on ascending towards the fourth floor. When it had so passed up to a distance of about five inches above the third floorj the plaintiff’s intestate, without invitation and unknown to Joseph, climbed upon the ascending platform. He at once attempted to get off — -the elevator platform being still in motion— and while doing so was caught between the rising platform and the descending elevator 'gate and was thrown down the shaft and killed.

The elevator was so arranged that the platform stopped at the fourth floor automatically. But the deceased apparently did not know this, and becoming frightened as he kept on moving upward, raised an outcry, whereupon Joseph called to him to stay on the platform, as it would shortly stop; this warning was several times repeated.

Notwithstanding it, the deceased, frantic with what seemed to him impending danger — for such unquestionably was his state of mind at that time- — continued his efforts to climb off the elevator floor, until the gate — then released and beginning to descend — striking the back of his neck, scraped his body from its position over the edge of the platform and hurled him down the shaft to his death. This release of the gate and its beginning to come down took place when the platform or elevator floor had risen to twenty-one-inches above the level of the third floor. The only way by which the ascent of the elevator could be stopped by manipulation was by the operator reaching around for a distance of nineteen inches and engaging a spring or dog which would have checked the upward movement of the platform, and there is evidence tending to show that Joseph attempted to do this as the elevator passed above the third floor without stopping, although it does not appear that this was in response to any cry of the deceased notifying Joseph of the state of peril he was in.

But, as we view the issue, this also is not material. Whatever attempt at stopping the elevator by the appliance named might have been made, it could not avail to save Burton for sheer want of time to make the effort available; the crash came simultaneously with making the attempt. Besides being altogether futile, the movement, carried any further, would have been at an extreme hazard of life or limb on the part of the manipulator.

According to the testimony of the experts, Mutton and Clark, offered by the plaintiff, and who were allowed over the objection of the defendant to testify as to certain experiments made by them with the same elevator after the accident, the following facts are established: The elevator opening above the third floor was substantially seven feet in heighth. The bottom of the gate was held, automatically, at about six feet above the level of the third floor, and as the elevator rose up the gate was released when the elevator platform reached a height of about twenty-one inches from the third floor level. The speed of the elevator was substantially sixty feet to the minute. The only way by which the elevator could be operated, or its progress arrested by any one outside of it, was by manipulation of the cable, and in the case in hand this could have been done only by the operator reaching beneath the floor of the car after it had passed far enough above the third floor level to enable him to interpose and perform the necessary manipulation. One of the experts says that this could be done by proper manipulation of the cable after the elevator ear had passed a distance of three feet above the level of the third floor, but this is conditioned on the manipulator being an “active” man; in another place it would require a “quick active man” to do it, as he says. The other expert testifies that in an experiment made after the fact he stopped the elevator within a distance of four feet after it passed the third floor level, and that a man could not begin to reach under the elevator car to do the manipulating of the cable until it had reached a heighth of two feet and a half above the level of the third floor.

■ We assume the competency of this evidence, although under other circumstances we should regard it as of doubtful value in that respect. We make no present comment on the effect to be given to it, or as to the conclusions to be reached from it, leaving that consideration till we come to apply the law of the case to it and the other testimony disclosed by the record.

We have already characterized that law as belonging to the doctrine of the last clear chance. It is sometimes also called the law of discovered peril, and courts have referred to it as the humanitarian doctrine, as undoubtedly it in foundation is. For some time it went by the name of the rule of Davies v. Mann, 10 Mees & W. 546, from the case in which it seems first to have been struck out.

Nevertheless, it is a rule of law, measured by the rigidity of law, and not a varying or flexible consideration to be swayed by the appeals of sympathy or pity or helplessness in misfortune, however creditable these may be upon the humane side of mankind, operating outside of courts.

The doctrine, in its application, has been pushed far beyond its first intendment, so far indeed, that it has been used to make a railroad company responsible to the heirs of a suicide — a result which has been characterized as abolishing the law of contributory negligence.

A halt, however, has been called on the extreme use, amounting to an abuse, to which this, in common with every beneficient rule, has been made subject, and in Ohio the application of the doctrine as one of “hit or miss,” to be indiscriminately used, has been clearly denied.

Some attempt at definition of the rule may aid in applying it to the facts of this case. In Quarterly Law Review, Vol. 2, p. 507 — cited with approval of Vizacchero v. Rhode Island Co., 26 R. I., 392 [59 Atl. 105; 69 L. R. A. 188] — it is said:

‘ ‘ The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible.”

In Grand Trunk Ry. v. Ives, 144 U. S., 408 [36 L. Ed. 485], the rule is thus formulated:

“Although the defendant’s negligence may have been the primary cause of the injury complained of, yet an action for such injury can not be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured, subject to this qualification: That the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence.”

For the purposes of the present case and in view of the point upon which our conclusion must rest, it will be sufficient to state the Ohio rule from the negative side. That is to say, to state what will relieve from the operation of the doctrine as applied to the facts, or what found facts will, as matter of law, defeat its application to, and control of them. It is to be found in the second syllabus of Drown v. Northern Ohio Trac. Co. 76 Ohio St. 234 [81 N. E. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. 844] and is as follows:

“ ‘The doctrine of last chance’ as formulated in Cincinnati, H. & D. Ry. v. Kassen, 49 Ohio St. 230 [31 N. E. 282; 16 L. R. A. 674], paragraph one of syllabus, does not apply where the plaintiff has been negligent, and his negligence continues, and concurrently with the negligence of defendant directly contributes to produce the injury; it applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence by the plaintiff so that the negligence of defendant is clearly the proximate cause of the injury and that of the plaintiff the remote cause.”

And in the opinion, p. 248, the negative of the rule is amplified thus:

“Now it must be apparent upon even a slight analysis of this rule that it can be applied only in cases where the negligence of the defendant is proximate and that of the plaintiff remote; for if the plaintiff and defendant both be negligent and the negligence of both be concurrent and directly contributing to produce the accident then the case is one of contributory negligence pure and simple.”

Now, let us apply the rationale of the doctrine as thus made manifest by our Supreme Court, to the undisputed facts, or to the most favorable view for the plaintiff that can be taken of them, as this record shows them to be. If his own witnesses are to be believed, it was about seven feet from the third- floor to the top of the shaft. When the elevator platform was about 21 inches above the third floor the gate became disengaged and began to drop. The deceased was sitting — or we are assuming that he was sitting — on the edge of the platform floor, trying to get off. The descending gate struck him on the neck at not more than four and a half or perhaps five feet above the level of the third floor, when he was forced off and into the pit. The gate, therefore, travelled in the neighborhood of two feet in order to reach his neck. It dropped about 15 feet to the second. This would require less than a half second of time for the gate to come to the point of contact with Burton’s neck. The ascent of the elevator platform was at a speed of about a foot per second, and as it had to travel only about two feet more upward, in order to have the iron fire door of the elevator intercept the view of Burton’s body — this being about seven feet above the third floor level — it follows, demonstrably, that his body became wedged in between tbe falling gate and the edge of the rising platform and he was in consequence forced off and down to his death, while the elevator car was traversing some part of the two feet still remaining. This was the distance within which only he could by the exertion of any possible diligence of effort, have been rescued from his peril, by any manipulation whatever of the appliance for that purpose at the time and place available. And the time within which alone the rescue could have been effected, was less than two seconds — because there was only that interval between the time when the intestate was seen trying to get off the platform and when he was thrown down the shaft and killed; all took place between the level of the third and fourth floors — it must have done so.

The decisive question then is, could Joseph, the operator of the elevator, within these limits of space and time, have discharged any duty he is shown to have known was owing by his master to the now dead man, to the effect of saving his life? We have no difficulty in finding that he could not. He could not have done so by not only the exercise of any reasonable care, but he could not have acted to that end effectually within the limits of a physical possibility. The deceased could not have been saved, within the time and under the undisputed circumstances of the case, by any manipulation of the elevator which Joseph could have put in operation.

Nor does the testimony of the experts enlarge the scope of the possibility of rescue to any practicable purpose, in our opinion, so far as the matters of fact testified to by them are concerned. Giving what they say its utmost weight, still, the conditions considered, the stooping posture into which Joseph must have gotten himself before he could even begin the work of rescue, the narrow space beneath the elevator floor within which he must have worked when he once was down and in a position to work at all, and the distance he must then reach out in order to manipulate the only appliances there were for stopping the elevator — taking all these things into the account, we say, and the plaintiff’s contention of an unperformed duty owing by the defendant, is neither made out nor aided by the experts, granting the propriety of receiving what they had to say at all, and having regard to the time at which all that they testified took place.

In respect to the opinion vouchsafed by them as to the time within which a rescue could have been effected, while we do not think that in that time even a physical possibility of saving of the man was shown, we do not, aside from that, regard the testimony as having any legal value. Its force is destroyed by the annexed condition that the rescuer must be an “ active man, ’ ’ or a “quick active man,” which condition was not allowable in this case. In other words, the hypothesis did not square with the requirement of the law.

The defendants were called upon to employ for their freight elevator service a man fit for their work in that respect, and not a Harvard graduate. They were not bound to furnish a man “quick” enough and “active” enough to insure getting a man out of trouble in their freight elevator, after he had by his own fault gotten himself in trouble, but only a man capable to operate the elevator in its ordinary and proper uses. We must reject this line of testimony altogether, not only for the reason we have now given, but also because the hypothesis takes no account of the rule of law that Joseph was under no obligation to act, if by acting he put his own safety in peril — which we think would have been the ease here. The opinion also ignores the question of proof of the time when Joseph first knew of Burton’s danger and the consequent necessity for his acting at all.

We consider that the testimony of these two men — Mutton and Clark — was all that in any view of the case could have sent it to the jury, or that could be used later to support the judgment. And we think it has no probative value. -

The burden was on the plaintiff; it at no time shifted. Has it been borne? We think it has not.

The undisputed, mathematical evidence is to the effect that the elapsed time between the earliest moment when Joseph’s attention could have been challenged to the impending peril of the plaintiff’s intestate and when the latter was forced from the elevator’s edge into the shaft and to his death, was insufficient and inappreciable to form a judgment of rescuing him and making it effective by any mode or manipulation within that interval either practicable or possible. The entire transaction, both as to the negligence of Burton in putting himself in a place of peril and any possible call of duty which could have been imputed to Joseph, and through him to his master, the defendant, was simultaneous, and not a separable transaction. If there was negligence on both sides — on the one side apparent and admitted, or at least proved beyond dispute — and on the other sought to be imputed — it was a concurrent, abiding and continuing negligence. There was no interval of time or circumstance, at which a jury could properly interpose a bar of separation between where the negligence of one party ended and that of the other could have begun. At most — if indeed so much — the two negligences — if two there were, which we think is not proved or properly to be imputed — shaded into each other so imperceptibly as to result in a twilight zone, covering both alike with its mantle of legal consequence. Such negligence — admitting its dual character — is not to be, can not be, apportioned by a jury, or an attempted partition of it allowed to stand by a reviewing court.

In Anderson v. Missouri Pac. Ry. 95 Neb. 358, 359 [145 N. W., 842, 843], the Supreme Court of Nebraska says:

“The doctrine of the last clear chance has no application to the ease where a section foreman in a railroad company’s yards suddenly goes upon the track in front of a moving train of cars, at a point so near the engine that it was impossible to stop and avoid injuring him. ’ ’

We think this case is that case — exactly, in that it involves, as the determining consideration, the impossibility of avoiding, injury to one in the first instance himself, negligent, and that in this view — the impossibility appearing clearly, no room is left for the application of the only rule of law upon a recovery is, or indeed can be, claimed.

We find and hold that upon the undisputed testimony this case is within the rule which by Drown v. Northern Ohio Trac. Co., supra, denies a recovery to the injured party or his representative — in this case, the plaintiff below. It follows that the court below should have sustained the motion for a new trial. It was error to refuse it, as was done.

For that reason, the judgment complained of is reversed.

As this determination proceeds upon the footing that the material facts in the record are not in dispute, in regard to which diverse conclusions could not have been reached by different persons, and that the question remaining is one of law only, our opinion is that final judgment for the plaintiff in error should be entered by this court, which is accordingly done.

We have been materially aided in our examination of this matter by the thoroughgoing briefs of counsel which have most industriously brought before us both the facts of the record and the law of the case.

Dunlap and Washburn, JJ., concur.


author: POWELL, J.

text:
    COURTS — MUNICIPAL CORPORATIONS
    [Muskingum (5th) Court of Appeals,
    September Term, 1918.]
    State ex rel S. W. Bradshaw, v. Walter R. Culbertson.
    Appointment of Clerk of Municipal Court, Created by Charter and Legislative Act.
    When a city charter, supplemented by an act of the general assembly, creates and constitutes a municipal court, such court is not a constitutional but rather a statutory court, and authority to appoint its clerk is vested in such appointing officer or board as is prescribed by the city charter, and not in the appointing officer or board prescribed by the supplementary statute.
    Quo Warranto.
   POWELL, J.

This is an action in quo warranto originally commenced in this court to determine the right to the office of clerk of the municipal court of the city of Zanesville, this county.

The said city of Zanesville adopted a charter for its local self government under the provisions of the amended constitution of the state of Ohio, making provision for that purpose. Among other things this charter so adopted provides a municipal court.for said city and creates the offices of judge and clerk of said court. It also prescribes a method by which such officers Khali be selected. The relator, Bradshaw, claims to be entitled to the office of clerk by selection under the method provided by said city charter.

The defendant, Culbertson, also claims title to said office but upon different grounds from the claim made by the said relator. His claim is that the municipal court , of the said city of Zanesville does not derive its existence or its authority from the charter of said city so adopted, but from an act of the Legislature providing for a municipal court for said city,” passed March 21, 1917, after said city charter had been adopted. This act upon which said defendant relies provides that a clerk of said court shall be chosen, but does not prescribe the method.

Defendant was appointed as clerk of said court by the judge thereof, duly elected and qualified in accordance with the provisions of said charter and said act of the general assembly. The relator was appointed as such clerk by the Mayor of said City of Zanesville pursuant to the authority given him for that purpose by the charter of said city, and he was selected from the eligible list of candidates provided for said city under its civil service regulations.

No question is made by either plaintiff or defendant as to the form or manner of either of said appointments. Both seem to have been regularly-made under the claim as made by each of said claimants and pursuant to the right to make such appointment as claimed by them respectively. If the municipal court of Zanesville is a charter court, deriving its existence and authority from the city charter so adopted, then the relator’s appointment as such clerk being regular under the provisions of said charter, he would be entitled to exercise the duties and receive the emoluments of such office. But if said court is a legislative or constitutional court and derives its existence and authority solely from the Constitution and the act of the General Assembly creating such court with inherent power to select its own clerk, then the claim of defendant to be entitled to said office is good since such appointment was regularly made under this construction of the power and authority of said municipal court.

The charter of said city was adopted by a vote of the electors of said city in November, 1915. Such charter is authorized by Art. 18, Sec. 8, of the constitution of the state of Ohio as it now exists. By this article of the state constitution:

“Municipalities shall have authority to exercise all powers of local self government and to adopt and enforce within their limits such local, police, sanitary and other similar regulations as are not in conflict with the general laws.”

This provision of the constitution would seem to authorize the establishment of a charter court with authority and jurisdiction limited to the exercise of the “powers of local self government, ’ ’ and if such court is created solely by the charter of said city then the provisions of such charter ought to prevail as against a later act of the general assembly in conflict with the same.

In case of a conflict between two acts of the general assembly on the same subject matter, the provisions of the later act prevail as being a later expression of the legislative intent; but in a conflict between a municipal charter legally adopted and an act of the general assembly on any subject provided for in said charter, the provisions of the charter ought to prevail within the territorial limits of the municipality on all matters within its authority and jurisdiction. Such act may be supplementary to and amendatory of such city charter and construed with the charter form a complete scheme for the exercise of judicial functions within the limits of said city.

We are of the opinion that such should be the rule of construction in cases of this kind. The authority and jurisdiction of the municipality charter should first prevail, then the legislative act creating a municipal court so far as the same is not in conflict with said charter should supplement and complete the judicial scheme in so far as its provisions are in harmony with the charter provisions. In case of conflict the charter provisions should always prevail as being the organic law relating to the government of said city, adopted by the residents thereof.

Applying these rules to the case in hearing, we find that the city of Zanesville has by its charter supplemented by the act of the general assembly of March 21, 1918 (107 O. L., 722), a complete scheme for the administration of the judicial functions so far as may be necessary to enforce and carry out the local self government of the city; that such scheme creates and constitutes a municipal court for said city within the authority of said Art. 18, of the constitution; and that the charter of said city creates the office of clerk of said court and provides a method by which such office may be filled; that such municipal court is not a constitutional court authorized by the constitution itself and is without inherent power to appoint its own clerk, but has only such power and such authority as are expressly given it by the act of the general assembly creating or attempting to create such municipal court, or such authority as is necessarily implied in order to carry out the purpose for which such charter was adopted and such municipal court created.

We think that the relator, Bradshaw, was regularly appointed by the proper appointing authority of said city, and that he has the right and title to the office of clerk of said municipal . court, and that the defendant, Culbertson, is without any right or title to said office, and so finding and holding, judgment may be entered in favor of the said relator and against the said defendant.

Judgment accordingly.

Houck and Shields, JJ., concur.


author: HAMILTON, J.

text:
    CONTEMPT — ERROR
    [Hamilton (1st) Court of Appeals,
    November, 1917.]
    Jones, Gorman and Hamilton, JJ.
    Harry H. Ragsdale v. Jennie W. Ragsdale.
    Review in Contempt Proceedings Implied in Finding “Guilty.”
    Direct statutory provision for review of contempt proceedings when the party has been found guilty affords ground by analogy for prosecution of error in cases where there has been a refusal to punish for contempt.

      Hunt, Bennett <& Utter, for plaintiff.

      W. A. BincMioff, for defendant.
   HAMILTON, J.

A party found guilty of contempt may have his case reviewed on error under Sec. 12146' G. C.; and while no direct provision in the statute is made to review a refusal to punish for contempt by error proceedings, by analogy it would seem that this remedy may be invoked upon such refusal. But contempt proceedings being quasi-criminal in their nature, can not be considered chancery cases, and such proeedings are not therefore appealable, but may be reviewed on error only.

Questions of custody of children are cognizable in a court of equity, and, when properly before such court, the court will make necessary orders for the support of such children; but ño such question is before the court in the instant case.

The motion to dismiss the appeal is sustained.

Jones and Gorman, JJ., concur.


text:
    CONTRACTS
    [Cuyahoga (8th) Court of Appeals,
    February 2, 1914.]
    Winch, Meals and Grant, JJ.
    Charles F. St. John v. Cleveland Collateral Loan Co.
    Salacious Conversations by Manager of Collateral Loan Company with Women of Easy Virtue not Misconduct nor Injury to Business.
    It is error to instruct a jury that salacious conversation on the part of the manager of a collateral loan company with certain female patrons would tend, as a matter of law, to injure the business of the company and afford ground for terminating the contract of employment, when the testimony tended to show that the conversations complained of were with women of easy virtue and. the business of the company was in no wise injuriously affected thereby.

      J. A. Fogle, for plaintiff in error.

      Ammerman & Thompson, for defendant in error.
   GRANT, J.

This petition in error asks the reversal of the judgment of the court of common pleas. The parties are as they were below.

The facts as stated in the plaintiff’s brief and its statement of his claim of error may be treated here as sufficiently accurate for the purposes of this opinion; they are as follows:

“On October 8, 1909, defendant by written contract, employed plaintiff as its general manager for the term of three years, at a salary of $3,000 per year. The written contract was silent as to when the term began, but by the assent of both parties, plaintiff entered upon his duties under said contract on November 20, 1909, and continued to perform the same until July 12, 1911, receiving his salary up to the last named date at the rate of $3,000 per annum according to the terms of the contract. On the last named date he was summarily discharged by the defendant, and in due course he brought this action to recover damages for alleged breach of the contract in discharging him without cause. The defense set up in the answer, after admitting the contract of employment, of service thereunder and the payment of wages during the period of actual service, as alleged in the petition, proceeds as follows:
“For further answer defendant says that on July 12, 1911, plaintiff was discharged from the further service of the defendant company for cause in this, to-wit:
“First, because he failed, neglected and refused to devote all of his time, ability, energy, and attention to the business of the defendant company; second, because he failed, neglected and refused to obey and execute orders given by defendant company; third, because while in the employment and acting as general manager of the defendant company, he mistreated, misused and insulted numerous lady patrons by improper and indecent proposals and conduct toward them, to the great and irreparable injury of the business, good name, and reputation of the defendant company. ’ ’

Plaintiff, by reply, denied the foregoing allegations of the answer.

Issue being thus joined, a trial was had resulting in a verdict for plaintiff, which was set aside by the court for errors of law, and upon a retrial a verdict was returned for the defendant, and judgment rendered thereon, and this proceeding is prosecuted to reverse that judgment.

Plaintiff claims that there was manifest error on the part of the court in its charge to the jury, which error was material and substantial and prejudicial to plaintiff’s rights, and in addition to that plaintiff contends that the verdict and judgment is against the manifest weight of the evidence and is contrary to law.

Taking these assignments of error in the order of statement and the first is concerned with the charge of the trial court given to the jury in writing before argument, at the request of the defendant. It is as follows:

“The court: The defendants have requested the court to charge the jury before argument, which request the court grants. The statute permits either party to give certain charges in writing. Of course, the court will charge you generally after the argument is over, but I give this special charge to you now: ‘If you find from a preponderance of the evidence that the plaintiff, Charles F. St. John, while acting as manager for the defendant company, did have any conversation with Mrs. Elizabeth Sexton, Mae Miller and Anna Lucas Jackson, or either of them, while such persons or either of them were patrons or borrowers of the defendant company, wherein it was proposed or suggested by him that they consent to improper relations with him, or if you find that he made or approved one or more loans from the defendant company to Margaret Smith, with the understanding or agreement that said loan was to be paid, in whole or in part, by her submitting to improper relations with him, then I instruct you, as a matter of law, that such conversation or conduct on his part would tend to injure the business of the defendant company, and would be sufficient cause for his discharge.’ ”

Instructions given in writing before argument are thought to be, and undoubtedly are, in some respects at least, of a more weighty and imposing character than the general and ordinary charge. They are to be with the jury in their retirement. They may not be enlarged or contradicted by any subsequent instruction, and to satisfy the requirements of the statute allowing them they must in all their parts state the law — no more and no less.

In this view of the matter, we think the charge complained of puts the case against the defendant much too strong, if it is to be measured by the real significance of the facts to which it purported to be applied. It said, roundly and as inerrant matter of law, that the tendency of the alleged talks, if they were proved, of the plaintiff with three named women, or with either one of them, was “to injure the business of the defendant company.” The defendant company was not running a Sunday school, nor was it a society for the promotion of social purity in Cleveland. It’s business was something quite different; it was that of loaning money and, as a part of its name implies, traps and calamities — alias the furniture of the dissolute.as well as of the virtuous — were the securities with which it had to do. Its patrons must have included all sorts, and presumably among them the kind of people upon whom the alleged Lotharian proclivities of Mr. Saint John would not only produce no adverse impression, but on the other hand would be a positive allurement and incentive to do business of the kind pursued by the Cleveland Collateral Loan Co. The company was “out for the stuff.” All was grist that came to its mill. Common experience, or at least common sense, teaches that it trafficked in the necessities of the unfortunate, and the unfortunate, as is well known, include the morally loose and disreputable, who figure extensively in the kind of trade driven by the denizens of the underworld as well as the defendant company and its kind, much to the profit of the latter. The word “Saint,” crystallized in the plaintiff’s name, would not probably drive one of these people from the friendly doors of the defendant, while to the holy it might be a recommendation and an advertisement. The word is a part of his name and does not signify, necessarily, his habits or proclaim his business as being saintlike. His namesake of old was so merciful that he said: “He that hath two coats, let him impart to him that hath none; and he that hath meat, let him do likewise. ’ ’ A manager of a collateral loan company known as having such a name, might well be an attraction to both sorts.

Putting the worst construction upon what Mr. St. John is charged with having said to any of these women, and it is not easy to find in it the tendency which the court charged as matter of law was in it, beyond explanation or construction more charitable than the evil intent which the court imputed to it. And this is said bearing in mind that the injury which the company says it suffered because of St. John’s unsaintly talk was a business injury and not an injury to that which a corporation, and much less a collateral loan company in a large city, cannot have —morals. Of course the exuberant talk of Mr. St. John cannot have affected the business of the defendant injuriously — and an injury to it in a business point of view would alone justify his discharge — unless actual or intending customers were driven away by it. And to have been so driven away, disgusted or virtuous patrons must have known of it. There is no evidence in the record to show that they did, except in the cases of the women named — and of these presently. That the women told anyone of it does not appear. That St. John’s alleged salacious conversations did not drive the women themselves from the defendant company, is clear. Mrs. Sexton, while intimating that she did not like that kind of talk and that she made up her mind to be quit of the concern as soon as she could, on that account, seems to have thought better of it later. She says she called St. John personally by telephone three, or perhaps four times, asking for more time on her loan. This was not the conduct of a badly insulted woman, nor did it deprive, or tend to deprive, the loan company of a single intending patron, or drive off one already there.

To the same purport and of like undamaging effect, and, as we think, tendency, is what is said to have passed between St. John and Mrs. Miller. Mrs. Miller says she did not think his talk was “very nice”; but it does not appear to have acted as a deterrent to her dealing with the company. She went on negotiating for a loon, which she finally declined to take, not because St. John’s talk was “not very nice,” but because she thought that the $10 which this corporation of outraged moral sensibilities charged for the use of $60 was more than she ought to pay. The company’s virtue did npt suffer by the occurrence, but remained inviolate for all that St. John did towards ruining it by his barren advances to Mrs. Miller.

Dickens makes 'Wackford- Squeers, the Yorkshire schoolmaster, assure Mr. Snawley that he had ‘ ‘ come to the right shop for morals,” and such seems to have been the thought of Mrs. Jackson in the present case. She says that she simply paid no attention to what St. John said to her, but passed it off as perhaps a piece of rather awkward, or unhappily worded pleasantry — a construction which may be put upon it by a charitably minded person, doubtfully including a collateral loan company. At page 122 of the record Mrs. Jackson says:

“Q. If Mr. St. John made any suggestions to you or advances to you, Mrs. Jackson, I wish you would state what they were?
“A. He just naturally made a slight remark about making a little engagement, but I didn’t pay any attention to it.”

And on page 124:

“A. I didn’t pay any attention to it.”

So Mrs. Jackson was not disgustedly driven away from trafficking with the company by any supposed.lapse from virtue of Mr. St. John. «

The case of Mrs. Smith alone remains. Her name is not so uncommon that the attention of intending dealers with the company would be likely to be attracted to it adversely to the latter if her alleged illicit commerce with Mr. St. John were 1m own But the transactions imputed to the two were of all things the least likely to become known. People who go about to do what they are charged with doing do not publish the fact in the newspapers or station a brass band in front of the house to proclaim what is going on within. Granting that Mrs. Smith was an underworldling, as is claimed, plying her avocation in Cleveland, and still the fact does not necessarily and as matter of law evidence the tendency postulated in the charge complained of, assuming also that she and St. John were guilty of improprieties as charged and that the fact was known in the circles in which Mrs. Smith moved. Indeed we think the tendency might be quite the other way and quite to the advantage of the loan company. For, assuming — as experience allows — that the patrons of loan companies are largely recruited from the purlieus of such places as Mrs. Smith is said to have kept, and it would be likely to follow that in those parts St. John might be accounted a pretty popular fellow, and one calculated, for his company, to do a stiff business. The charge against him in this case is not that Mrs. Smith’s money would have been tainted money, if the company had got it, but that the company did not get it. If the complaint was that St. John instead of the company reaped the usufruct of the Mrs. Smith loan, that would be one thing; it might amount to an embezzlement of assets. But what is complained of is not an act but a tendency necessarily engendered by the act. We do not think that such tendency necessarily, or even probably, arose from what St. John is charged with having done — if he did it.

And St. John denies, point blank, all the delinquencies imputed to him. As to a good deal of it, after all, an innocent as well as evil construction may be put upon it. That is, the comparatively innocent construction that the talk was the inconsiderate outcrop of a badly regulated habit of thinking, sometimes observable in men after they have arrived at an age when such expectorations of speech eanot mean much more than talk, and which» at worst are put forward tentatively rather than with danger of harmful action.

Upon all these considerations, it seems that the question of the tendency of St. John’s alleged remarks and acts to injure the business and not the morals of the loan company, was one of fact to be resolved by the jury, under proper instructions, and not by the court, dogmatically and as matter of law.

That it was not left to the jury was error, to the clear prejudice of the party entitled to have it so left.

Error is also alleged as to the general charge. That charge in the respect complained of was in the following language:

“If you, therefore, find by a preponderance of the evidence in this case, and I have defined that to you, that the defendant on July 12, 1911, discharged the plaintiff for any one or all of the causes set out in its answer, or for any other just and reasonable cause, then I say to you that the plaintiff Cannot recover in this action, and that your verdict should be for the defendant. If, however, from all the evidence in the case, you find that the defendant did not discharge the plaintiff from its employment for the reasons claimed by it and set up in its defense, in its answer, or for any other just and reasonable cause, then the discharge of the defendant would be a wrongful discharge, and without just cause, and your verdict should be for the plaintiff.”

Twice here the jury is allowed to defeat the plaintiff’s claim “for any other just and reasonable cause,” meaning thereby for a cause other than any alleged in the answer as a defense, and other than any to which the proof in the case was alone addressed. This is doing better by a litigant than he has seen fit to do for himself. “Ask, and ye shall receive,” says the Scripture. Here the court says one may receive without asking.

Elsewhere in the charge the same thing is negatively stated thus: “And I say, as I have already said before, that if you find from all the evidence in the case that the reasons set up in defendant’s answer were not the reasons why it discharged the plaintiff, and that those reasons did not exist in fact, and that it discharged the plaintiff without any good and sufficient cause, then the plaintiff would be entitled to recover in this action.” And in still another place this negative statement is made. To give this in charge to the jury and not to cure it by anything to be found elsewhere in the instructions given, is absolutely error, prejudicial to the plaintiff.

Complaint is made as to the sufficiency of the charge as given in respect of the alleged defense that the plaintiff was inattentive to the business of his employer; it may be enough to say that no request was made to make the charge more sufficient. The charge covered the point — rather meagerly, it is true — but in the absence of a request to say more, it was enough.

¥e decline to disturb the judgment on the weight of the evidence. There was evidence fit to go to the jury which should have brought a right verdict if the instructions had been proper.

For the errors found the judgment complained of is reversed and the cause remanded for further proceedings according to law.

Winch and Meals, JJ., concur.


text:
    MANDAMUS — TAXES
    [Holmes (5th) Court of Appeals,
    1918.]
    Powell, Houck and Shields, JJ.
    State ex rel Ed. A. Bowman v. Holmes Co. (Comrs.) et al.
    1. Payments Due from Official Boards Enfofcible by Mandamus.
    Mandamus is the proper form of action to compel payment of an amount due from a public board or officers under a contract which fixes the amount to be paid.
    2. Mandamus Lies to Compel Payment of Tax Inquisitor.
    In the case of a contract executed by county commissioners with a tax inquisitor, providing for payment of a certain percentage of taxes collected on omitted property, mandamus lies to compel the county auditor to issue his warrant in payment thereof.
    3. County Comimissioners not Parties to Mandamus to Compel Payment of Tax Inquisitor.
    In such a case, allowance having been made in the contract for whatever claims might arise thereunder, the members of the board of county commissioners are not necessary parties.

      Loren E. Wise, for plaintiff.

      Wayne Stilhvell, Pros. Atty. for defendants.
   POWELL, J.

This action is in this court on error to the judgment of the court of common pleas in a proceeding in that court in which the .state of Ohio on the relation of Ed. A. Bowman seeks a peremptory writ of mandamus to compel the defendants, who are the board of commissioners of Holmes county, Ohio, and the auditor and treasurer of said county to take such proceedings as may be necessary to pay to the said Bowman out of the county treasury of said Holmes county twenty per cent, of a certain amount collected as delinquent taxes, through his efforts as tax inquisitor of said county.

The record discloses that said Bowman was formerly tax inquisitor of said county under a contract in writing between him and the defendant, the board of commissioners. The said contract provided that on the collection of taxes on omitted property in said county the relator was to receive for his compensation as such tax inquisitor twenty per cent, of the amount so collected. The petition alleges that an amount in excess of four thousand dollars had been collected on property omitted from the tax duplicate out of which he had not received his compensation as provided by said contract.

It is admitted in the answer that the contract was executed as claimed; that the amount as set forth in the petition for a writ of mandmus was the correct amount; that if said relator is entitled to any part of said taxes so collected as his compensation the amount alleged is the correct amount so that there is no question before the court save as to whether or not the claim is a valid claim, and whether or not the relator is entitled to a writ of mandamus requiring defendants to either allow and pay his claim, or that the auditor be required to draw a warrant for the payment of the same, to be paid by the county treasurer. It is contended on the part of the defendants that the action is improperly brought; that the claim as pleaded by the relator can not be collected in the way in which this action is brought, or in other words that the writ of mandamus is not the proper remedy for the collection of claims of the ldnd described in the petition.

This court, however, is of the opinion that where there is an amount due on contract from public officers or boards and such amount is agreed upon between the parties, and the properly constituted authorities to make payment of such amount refuse or fail to draw the necessary warrants or vouchers for the payment of the same, a writ of mandamus will lie to compel such payment.

Section 12283 G-. C. provides among other things that mandamus is a proper remedy to compel “the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” Where a claim is presented for payment arising out of a contract with the county commissioners, which provides for ascertaining the amount thereof when the services are performed or the obligation to pay the claim arises, mandamus is a proper remedy. In this case it was provided in the contract itself that the relator should receive twenty per cent, of the amount collected, and that it was the duty of the county auditor to draw his warrant for that sum whenever any omitted taxes were paid into the county treasury as a result of the efforts of such tax inquisitor under said contract, and it would be the duty of the county treasurer to pay the warrant so drawn by the county auditor. That is, the drawing of a warrant in such cases is an act enjoined as a duty resulting from the office of county auditor, and upon this record mandamus would lie against him to compel the same to be done. In eases where the amount claimed is to be ascertained by evidence, mandamus would not lie, but some of the other means of enforcing the collection of claims should be employed.

We think that the court erred in refusing to issue a peremptory writ as prayed for under the special provisions of Sec. 12283 above mentioned. We think further, that there is no necessity for the commissioners of said county to allow the claim sought to be collected as the allowance thereof had been provided for at the time of the execution of the contract, so that there was no duty arising in the case to be performed by the county commissioners and they were not necessary parties to the suit. We think also that the auditor’s failure to perform his statutory duty in refusing to draw his warrant for the payment of the amount due on the delinquent taxes, requires that a writ issue against him requiring him to issue the warant as prayed for in the petition herein.

It is the judgment of this court that the judgment of the court of common pleas, refusing the peremptory writ against the county auditor should be reversed, and as there are no disputed facts in the case requiring further adjudication this court will render the judgment that ought to have been rendered in the court below. It will therefore be the order and judgment of this court that a peremptory writ issue as prayed for requiring the county auditor to draw his warrant on the county treasurer for the amount shown to be due said relator, as prayed for in the petition, and that the treasurer pay the amount of said warrant when so drawn, and the case will be remanded to the court o£ common pleas to carry this judgment of the court of appeals into effect.

Judgment accordingly.

Shields and Houck, JJ., concur.


text:
    PUBLICATION — WORDS AND PHRASES
    [Lorain (8th) Court of Appeals,
    October 14, 1918.]
    Winch, Meals and Grant, JJ.
    R. T. Reefy, Taxpayer, v. Elyria (City) et al.
    Newspapers of “Opposite Politics” Determined by Record in Presidential Campaign of Previous Year.
    Whether two newspapers are of “opposite politics,” within the meaning of the statute relating to municipal advertising, will be determined by their conduct and policy at a time when partisanship has sway and party organization and discipline finds expression in party platforms and declarations, rather than during a period when party feeling is quiescent and there is little or no political activity; hence, when a municipality enters into a contract for such advertising during the year following a presidential campaign, the question whether the two papers chosen are opposite or antagonistic in politics will be judged by their record during the campaign of the preceding year.
    Appeal.
   GRANT, J.

The petition alleges that the city of Elyria attempted to contract with the defendants, the Republican Printing Co. and the Chronicle Printing Co., respectively, for the printing by them of such matters and things as are by law required to be published in newspapers, pertaining to the affairs of said city, exclusively. These purported contracts are said to be illegal and void, and the prayer of the petition is that the execution of them and all payments under them be forbidden and enjoined.

This claimed illegality in the contracts awarded arises, so it is said, from the fact that the newspapers published.by the defendants named, namely, the Evening Telegram, published by the first named, and the Elyria Chronicle, published by the latter of the two, are not newspapers of “opposite politics,” as they are required to be by the law permitting the contracts in question to be made. This is the sole issue appearing in this appeal, and it is the only question that will be discussed in this opinion. It is a matter of fact, to be determined upon all the circumstances of the case.

We say now, as we said at the argument, that the standard of political orthodoxy by which we shall measure the quality of these two newspapers as to whether they are “opposite” within the contemplation of the statute, will be their conduct and affiliations in the political campaign of 1912, and not their claims and asseverations now. We are not here to conduct a post mortem examination nor to administer “crowner’s quest law.” The time when those who seek the benefits of a course of conduct should speak or keep silent is when speech or silence is called for, and not when either will be inert. With newspapers as with men, “By their fruits ye shall know them,” and “In the place where a tree falleth, there it shall lie.”

It is not pretended that “politics,” as used in the statute under which the contracts attempted to be awarded are allowed, is the word in its broad sense of comprehending the whole scope and office of government. It is used, all will agree, in its restricted sense of partisanship. Thus considered, the word signifies party preference and connection. It lives and exercises its force and brings its power to bear, through party organization and discipline and finds expression in party platforms and declarations of principles and in the utterances of candidates and leaders. In 1864 General McClellan openly repudiated the platform on which his party had placed him as its candidate; nevertheless, he claimed and had the allegiance of his party and was the incarnate exponent of its politics at the polls.

The word “opposite,” when employed as the statute in question employs it, means antagonistic, having a different tendency, or character. Contrary is, perhaps, the most expressive as well as the most correct verbal equivalent by which the underlying concept of opposition can be voiced; it is, at least, sufficient for the purpose of this case. It does not permit a twilight zone in which, or under the shadow of which, neighbor Garford, or townsman Sharp may be supported by a paper masquerading as a political enemy to their party. It is not allowable, under this definition of the vital word, to make merchandise of journalistic agencies by selling space to the minor candidates of one side while posing as the party exponent of the other side, in good and regular standing. What the statute clearly means is — “He that is not for me is against me; and he that gathereth not with me seattereth abroad.”

Brought to this plain and easy test, and measured by its requirements, how stands the case at bar?

In the campaign of 1912 there were — among all — at least two political parties before the people of this nation and of Ohio and in every county in it. These two parties were known and designated as the Republican and Reform parties, respectively. Bach had its candidates, state and national, each had fulminated its declaration of principles, and each was fighting for votes against the other. Not only were they antagonistic — contrary— to each other on paper and in the abstract, but it is too well known for dispute that in the concrete and in the persons of the candidates and down to the lowest stratum of their followers, they were at deadly enmity with one another. The feud was extremely bitter all down the line, from Taft and Roosevelt to the humblest job-hunter in Pooreuss county and the battler for constabulary honors in a wharf-rat precinct of the Bast Side. No better evidence of this ultra spirit of strife can be had than the admission of the publisher of the Chronicle, found in the record in this case, as to how he hated Taft, the head of the ticket which he now says he supported. It is impossible that the campaign should have been otherwise. The head of the Reform ticket— pre-eminently one of Homer’s leaders of men — had, above all things, what John Randolph used to call “a talent for turbulence.” And he is one of that kind of persons who manage to embroil pretty much everybody in his contagious quarrelsomeness. As between Republicans and the so-called Reformers, no one of either could keep out of the internecine fight of last year, nor could one dodge taking sides; Mr. John Dawkins, if he had been alive again, simply would not have been in it.

And yet, the publisher of the Chronicle maintains in this record and at the bar, that he did this impossible thing.

What he says is that, finding the good old republican ship in the hands of pirates, with William H. Taft as the Jolly Roger, to avoid seeing his party walk the plank he concluded to lend a hand at scuttling the craft. Accordingly, he denounced the regular nominee of the party to which he now says he then owed political allegiance. He counseled the readers of his paper to put a cross-mark over the state and national ticket of the party to which he now claims he was then “opposite.” It is true, as he says, that he advised also a cross at the head of the Republican county ticket, but when he adds that there was no Reform county ticket in the field, the merit of his advice in this respect, considered from a partisan point of view, becomes elusive. The explanation that a part of this advocacy of candidates was paid for does not improve the matter at the bar of political morals, nor does it change the requirements of the statute. At best, it only undertakes to shift the transaction from the category of political treason to that of party prostitution; the subject was either in the enemy’s camp or “on the street” — a political nymph d/a pave.

It is true that on the trial it is denied that the platform— which is only the form of declared principles — of the party which the Chronicle now professes loyally to have served last year, was in any way assailed last year. We shall let the record speak on this point. In an editorial article published in the Chronicle of August 9, 1912, the following language appeared:

“It is apparent that the republican party is no longer republican in the sense that it stands as the representative party of the people-at-large. Since Taft and the representatives of special privilege have committed the theft of the republican party, there is no longer any hope for the common people from that source.
“Roosevelt and the progressive party, by their confession of faith and their party platform offer the relief that the masses demand. The platform is clear, progressive and does not waver nor evade the issues of the present day. The declarations stand out clear and ring with true patriotism. If the progressive party should win at the election the country will be safe in Mr. Roosevelt ’s hands. ’ ’

It is true that in the same article something is said commendatory of Mr. Candidate Wilson, also. But neither Mr. Wilson nor his party is in this case, and neither need be mentioned here; the fight is between Mr. Taft’s party and the party of Mr. Roosevelt, and in that fight the Chronicle says it was for the former, — that is, it claims to have been of “opposite polities” to the latter. If this is so, — if the Chronicle was indeed Mr. Roosevelt’s friend — and he surely was, in fact he says so, — then if Mr. Roosevelt were the prophet Job in all things — patience included —which he was not, by a long shot — why, then he might with the afflicted man of old have exclaimed: ‘! Behold my desire is * * * that mine adversary had written a book,” — or rather, a newspaper.

This friendly enmity might be pursued a good deal further without traveling outside the record, but the quality of it may be found from the samples already given. Mr. Lincoln said the war could not be fought with squirtguns made out of elderstalks charged with rose-water, and enemies of the Roosevelt type do not usually assail each other with palm branches.

These being the facts, what was the status, in a party way, of the Chronicle in the momentous and highly quarrelsome campaign of 1912 ? Foraker was once defeated for Governor of Ohio because he maintained that he was “neither for nor against” prohibition in this state. Assuming, as surely we may, from its own confessions in this case, that the Chronicle was substantially in Foraker’s plight, might it take that position and still claim benefit of clergy — or, rather, of the publication law that we are considering? What is the political status of a “neither for nor against” newspaper, in the eye of the statute in question? Some research here might be employed, usefully, perhaps, but ours can be but brief.

The late Mr. Barnum exploited Joice Heth, the Feejee mermaid, the Woolly Horse, the what-is-it, and other things of doubtful origin and function. We shall not undertake to assimilate any of these to the character assumed by the Chronicle last year. Our desire would be to place the Chronicle, in respect of the matter now under consideration, where the Chronicle has evidently placed itself, and we shall try to leave the Chronicle where the Chronicle has left itself — if we can find out where that is.

Hermes was the Greek Mercury, and the ancients all agree that he was what Fielding says Mr. Partridge, the schoolmaster, was — “a jolly brisk young man.” Aphrodite, as is well known, was the Grecian Yenus, and what her qualities were is matter of tolerably common knowledge among men today. Out of the two names the wealthy English tongue has coined another — “Hermaphrodite,” — a name which, outside of politics survives chiefly and usefully in the rig of a craft known as an hermaphrodite brig. It does not signify a sexless being, but quite the reverse. It is bi-sexed, — so highly endowed is it with powers that make for increase of voters. If we go into the realm of sex-poverty— and certainly in these piping times of eugenic reform and all-around uplift we may do so — we shall find a product, sometimes incarnate in newspapers, which is not favored in the estimation of some men of the party to which the Chronicle upon the record here says is belongs. We may appeal with some degree of confidence to the words of a Republican of pristine days, — before Taft robbed the party of its ancient virtue, — and we shall expect every true and traditionally loyal member of the party, including the Chronicle, to agree and abide. It is the language of a Republican saint now in glory — if there is such a thing. We shall take no liberty with the words used, except such a necessary change of names and dates as shall serve to bring it up to the supreme occasion of 1912. He said:

“Mr. President, the neuter gender is not popular, either in nature or society. ‘Male and female created He them.’ But there is a third sex, if sex that can be called which sex has none, resulting sometimes from a cruel caprice of nature, at others from accident or malevolent design, possessing the vices of both and the virtues of neither; effeminate without being masculine or feminine; unable either to beget or to bear; possessing neither fecundity nor virility; endowed with the contempt of men and the derision of women, and doomed to sterility, isolation and extinction. But they have two recognized functions. They sing falsetto, and they are usually selected as the guardians of the seraglios of oriental despots. Geology teaches us that in the process of being, upward from the protoplasmic cell, through one form of existence to another, there are intermediary and connecting stages, in which the creature bears some resemblance to the state from which it has emerged and some to the state to which he is proceeding. History is stratified politics; every stratum is fossiliferous; and I am inclined to think that the political geologist of the future in his antiquarian researches between .the triassic series of 1908 and the cretaceous series of 1912, as he inspects the jurassic Bull-Moose strata intervening, will find some curious illustrations of the doctrine of political evolution.
‘ ‘ In the transition from the fish to the bird there is an anomalous animal, long since extinct, named by the geologist the pterodactyl, or winged reptile, a lizard with feathers upon its paws and plumes upon its tail. A political system which illustrates in its practical operations the choice by the same leader, as twin door-keepers of his party’s conscience, of Walter Brown and Jim Garfield, can properly be regarded as in the transition epoch and characterized as the pterodactyl of polities. It is, like that animal, equally adapted to waddling and dabbling in the slime and mud of partisan politics, and soaring aloft with discordant cries into the glittering and opasescent empyrean of reform. ’ ’

If, on the other hand, we resort to Democratic authority for Wilson, it must be remembered, was commended by the Chronicle and it was urged at the bar in this case as an evidence of impartial political sexlessness last year, we shall run upon what on another occasion a western Milton — “inglorious,” to be sure, but alas! by no means ‘ ‘ mute ’ ’ — let loose with, as follows :

“A Democrat fool who serves as a tool
The men of his party to beat,
Deserves to be thrashed and have his head mashed,
And kicked out into the street.
’Tis better to vote for some billy goat,
That butts for his corn and his hay,
Than to vote for a man that has not the sand
To stand by his party a day.”

The unhappy condition of the political enueh in this country was more tersely but quite accurately likened by Randolph to that of the mule — “having neither pride of ancestry nor hope of posterity.”

Not the least satisfactory evidence that the politically sexless status of the Chronicle must have existed in the heroic age of reform in 1912, and that it and the Telegram, its now enemy, according to the attempted contract of the Elyria council, were not of “opposite” but of the same, or substantially the same, politics, last year, we find in the attitude of the Telegram at the trial before us. The Telegram knew, it was more than once informed from the bench, that its own political standing was not in dispute and that the court was with it in its contention that its contract with "the council was not obnoxious to just legal criticism. Nevertheless, the Telegram attempted to say a word — yes, several words — to help out its co-defendant, the Chronicle, in its assertion of a right to participate in the publishing contract to the exclusion of a real, and not simulated opposition newspaper. When John Alden, as proxy for Miles Standish, went to court Priscilla, the girl asked him why he didn’t say something for himself. This concatenation of good offices between two supposedly virulent foes, suggested an excellent mutual understanding as to the hoped-for distributees of the loaves and fishes embodied in the printing contracts. Plainly, the two are not political enemies, but in the substantial matters of practical partisanship are friends, just as in the like matters they were not enemies but friends in 1912, — working to the same ends, through a real community of political interests.

By its own confession in this case, the motives which impelled and shaped the political action and omissions of the Chronicle in the campaign of 1912, were in part a vindictive hatred of the head of the ticket to which it now claims it owed fidelity and entire service, and in part the pay it got for its support of state and local candidates. Neither one, nor both together, rose to the dignity of politics in the sense that the statute uses the word. And so far were either or both sets of motives from being “opposite politics,” as we have seen already, they were in substance and in fact of the same politics with the only paper to which the council of Elyria has thought fit to let its printing contract, — if indeed it can be said to have had any politics at all —Which, we as matter of fact find was not the case.

The Chronicle, by its conduct in the campaign of 1912, voluntarily emasculated itself, politically. It, deliberately and of its free-will, unsexed itself, politically. It became, of its own accord, not of doubtful gender, but of no gender, politically. It is, we are certain, more charitable as well as more accurate, to take this view of the matter than to fly in the face of the notorious facts and the history of the Chronicle, and say that it was in 1912, a Republican newspaper, in full faith and fellowship with the Republican party, its organization, its discipline, its platform and its admitted leaders. And we regard this conclusion as more honorable also to the Chronicle, in spite of its desire to hold on to its contract, at a very large expense, we think, to its reputation for consistency and for truth. We can not consent to the view that because matter printed in a newspaper is boilerplate matter, the publisher is relieved from the responsibility of giving it out to his readers as the opinion of his paper, or that commendatory mention of candidates shall not because paid for be exempt from a like responsibility; to take pay and then dodge the consequences only adds meanness to venality.

We find and hold that the Telegram was last year an opposition paper to another paper which is not a party to this action and whose status and fortunes are therefore of no concern to the court. But it was not in opposition to a paper battling manfully on its own side. To be “opposite” implies something to be opposite to. There was nothing in the political conduct of the Chronicle to which the Telegram could possibly be opposite,— unless, perhaps, it was to the confessedly merchandising support the former gave to local, and even non-partisan judicial, candidates, and on this point the record is silent.

One of two things, under the admitted facts of this case, must be true: In the campaign of 1912 the Chronicle either had no “politics,” in the sense contemplated by the law we are to enforce here, or its “politics” at that time was of the Roosevelt or Reform brand. In the latter case its politics was ‘ ‘ friendly polities.” In neither ease was it of “opposite polities” to the Telegram. “Polities” which in controlling matters is placed at the service of the other side and as to the rest is for sale to candidates for judges and understrappers, with a few crumbs donated to wealthy townsmen and neighbors, — such “politics,” we say, is no “politics”; much less it is “opposite politics.”

We leave the Chronicle in this respect where it has left itself, without any political status to support the contract which the council of Elyria undertook to make with the defendant, its publisher. It has disabled itself from making that contract and will not be allowed to have the benefit of a service which it can not render — that of a newspaper “of opposite politics” to another newspaper which had “politics.”

We shall not accede to the alternative request of the defendant, the Chronicle Printing Co., that in the event of our reaching the conclusion we have reached, then we shall declare both contracts void and thus send the matter back to the council for entire action de novo. There is no reason in law why this should be done. The two contracts do not fall under the same condemnation. There is admittedly no infirmity in the contract made with the defendant, the Republican Printing Co., and it is entitled to the avails of its bargain.

There is another and in our opinion a cogent reason for this determination. Where a body charged with a plain duty has shown a manifest disposition to ignore its obligation and to defeat the purpose of the law which imposes it, it is right, it is proper, for the courts to be equally astute in beating the game, if they can do so within the rules which control them. We think this can be done in this case by simply declaring void the purported contract between the city of Elyria and the Chronicle Publishing Co., without more. This we shall do. There will then be a valid and subsisting contract between the city and one of the two newspapers “of opposite politics” required by the statute. The city council of Elyria can do the rest. We abstain from further suggestion on the subject.

The drift of public opinion in this country now is towards more nonpartisanship in polities. The tendency is wholesome,— unquestionably. At any rate, the new policy has got to have its fling.

But it will not long remain so if we abandon the discipline and a certain sense of honor hitherto exerted by party organizations, and replace these with a lot of journalistic janizaries, who, confessedly having no principle, are to charge a high rate of interest on the vacuum thus capitalized into a mercantile asset. And an abdication of this power to the press, — which should be as Caesar’s wife — without all the checks and safeguards of a jeal-ous sense of public propriety, would be full of peril. It is a question whether it was not a newspaper office instead of the Temple, out of which the Master with a scourge chased the money-changers and the merchandisers.

On the other hand, there is a danger that — riding on the crest of the uplift wave — the best-intentioned reforms in the world may' suffer from falling into the hands of irresponsible champions in the shape of visionaries and impracticables.

Full many a whim of purest ray serene,
The dark, unfathomed brains of uplift bear;
Full many a wheel was formed to whirr unseen
And waste its fleetness ’neath the Bull Moose hair.

The defendant, the city of Elyria, will be perpetually enjoined from proceeding further under its alleged contract with its co-defendants, the Chronicle Publishing Co. , A decree may be drawn accordingly.

Winch and Meals, JJ., concur.