text:
    COURTS — RAILWAYS—POST OFFICE.
    [Hamilton (1st) Court of Appeals,
    July 17, 1913.]
    Swing, Jones and Jones, JJ.
    Pittsburg, C. C. & St. L. Ry. v. William Pool.
    1. Cincinnati Superior Court Has Jurisdiction of Negligence Case Against Railway Running Into City.
    The superior court of Cincinnati by virtue of Sec. 1571 G. C. has jurisdiction of an action for personal injuries brought by a United States postal clerk against a railway company having its termini in that city.
    2. Postal Clerk Entitled to Same Care as Passenger.
    A railway postal clerk is entitled to the' same degree of care from the railway company over whose line he is being transported m the course of his employment as is accorded to ordinary passengers for hire.
    Error to common pleas court. .

      Maxwell ds Ramsey, for plaintiff in error.

      Thos. L. Michie, for defendant in error.
   JONES, O. B., J.

The action below was for personal injuries suffered by plaintiff while acting in his duty as postal clerk in a mail car that was being transported by defendant company. Plaintiff was engaged in distributing mail, and at the time of the injury the car in which he was working and in which he had been transported from Cincinnati to Columbus, was in the Union depot at Columbus, and in the course of its regular operation was shifted from one train to another for the purpose of taking it to Dennison, Ohio', where plaintiff would disembark and return thence to Cincinnati. The injury was caused by a severe shock to the car in' this shifting operation, which jarred the ear in such an extreme way as to throw plaintiff six or eight feet backward upon: his back and elbows upon the concrete floor of the car, causing a dislocation of .one of the' vertebrae of the spine and a fracture of a small piece of bone in the right arm at the elbow, producing injuries more or less serious in their nature.-

Plaintiff in error seeks reversal chiefly upon the gonnd that the superior court of Cincinnati in which the case was tried below was without jurisdiction; that the evidence did not sufficiently show that the shock to the ear was caused by the defendant company; and that the charge of the court did not sufficiently discriminate as to the duties of the railroad company with reference to a postal clerk as a passenger as contrasted with the same duty towards a regular passenger within defendant’s coaches. Plaintiff in error further suggested in argument that the medical treatment had by plaintiff below was in part responsible for his suffering, and his slow and unsatisfactory recovery.

It appears that plaintiff was transported from the city of Cincinnati on the train of the defendant company to Columbus and beyond, and the court is of the opinion that the evidence is sufficient to establish the jurisdiction of the superior court of Cincinnati in the case under the terms of Sec. 1571 G. C. And as the defendant rode in the same car from Cincinnati until after he was injured, and the testimony showed that in the regular course of business this car was shifted by the defendant’s employes in making up its train, we think the jury was justified in determining that the defendant company was responsible for the injuries received.

There seems to be no question under the decisions but that a postal clerk, whether performing his duties or while riding on a railroad train to enter upon such duties, is considered a passenger upon the railroad and is entitled to all of the rights and immunities due from a carrier of passengers to an ordinary passenger for hire, and the same degree of care is owing to him as to other passengers, and if he is injured through the negligence of the carrier or its employes it is liable for. the damage sustained. In support of this defendant in error has cited numerous authorities in his brief, among which are the following: Lindsey v. Railway, 26 App. Cas. (D. C.) 503; Gulf C. & S. F. Ry. v. Wilson, 79 Tex. 371 [15 S. W. Rep. 280; 11 L. R. A. 486; 23 Am. St. Rep. 345] ; Southern Pac. Ry. v. Schuy ler, 135 Fed. Rep. 1015 [68 C. C. A. 409] ; Gleeson v. Railway, 140 U. S. 435 [11 Sup. Ct. Rep. 859; 35 L. Ed. 458].

The charge of the court fairly set out the duty of a railway company carrying passengers and while it properly did not attempt to differentiate the general duty toward a passenger from its duty toward a particular class of passengers such as mail agents, the jury was instructed to take into consideration all the circumstances and surroundings as they appeared in the evidence and determine whether the defendant has been guilty of negligence to the plaintiff in the particular case.

The question as to the extent of the injury and as to the proper treatment of it by the physicians was all properly submitted to the jury, and upon a complete review of the record we find no error to the prejudice of plaintiff in error.

The judgment will therefore be affirmed.

Swing and Jones, E. H., JJ., concur.


source: Caselaw Access Project

author: JONES, E. H., J.

license: Public Domain

text:
    APPEALS — DISMISSAL.
    [Hamilton (1st) Court of Appeals,
    May 31, 1913.]
    Jones, Swing and Jones, JJ.
    Hall v. W. M. Ritter Lumber Co.
    1. Provision Authorizing Dismissal without Prejudice not Applicable to Appeals from J. P.
    Section 11586, G. C., authorizing the dismissal of actions in the common pleas court “without prejudice to a future action,” does not apply to a case coming into that court on appeal.
    2. Power to Dismiss Controlled by Statute.
    The power of parties to such ease with reference to dismissals, etc., is defined by Part Third, Title II, Chapter 9, General Code. [Syllabus by the court.]
    Error.
   JONES, E. H., J.

Defendant in error filed an action before a justice of the peace against plaintiff in error, who filed a counterclaim.

The plaintiff, lumber company, recovered a judgment before the justice and defendant, Hall, failed on his counterclaim and appealed the cause to the common pleas court.

Thereupon, against the objection of the defendant, plaintiff dismissed its cause of action “without prejudice,” which it claimed authority to do under See. 11586 G. C., which provides:

“An action may be dismissed without prejudice to a future action: 1. By the plaintiff, before its final submission to the jury, or to the court, when the trial is by court,” etc.

This section is part of a chapter relating to proceedings in the common pleas court in actions originating there, but it is claimed is made applicable to appealed eases by Sec. 10387 G. C., which is as follows:

“When an appeal is taken from a judgment of a justice of the peace, to the court of common pleas, the plaintiff below shall be plaintiff above; and in all respects, the parties must pro ceed as if the action originally had been commenced in that court. ’ ’

The effect of the above section is to make the rules and laws governing procedure in the common pleas court applicable in so far as there is a lack of special provision in the statutes for appealed cases.

We find that the subject of dismissal of appealed cases in the common pleas court is fully covered by Part Third, Title II, Chapter 9, General Code.

We are, therefore, of the opinion that See. 10387 only applies to such cases when they are to proceed in the appellate court, as it only provides how the parties “must proceed” and says nothing about how they must or can stop. As the dismissal of such cases is fully provided for in other sections of the same chapter, we think the words “must proceed” as here used refer to the conduct of the trial and that the purpose of the section is to furnish, by reference, and in a brief way, the rules for pleadings, evidence, verdict, etc., and do not include or apply to such cases the rules as to dismissals of eases originating in the common pleas court.

We find no authority in Chapter 9, above referred to, for a dismissal by the plaintiff “without prejudice,” and finding that Sec. 11586 is inapplicable, the judgment below is reversed.

Cause remanded for further proceedings.

Judgment reversed, and cause remanded.

Swing and Jones, JJ., concur.


author: SWING, J,

text:
    CARRIERS — COMMERCE.
    [Hamilton (1st) Court of Appeals,
    July 22, 1913.]
    Jones, Swing and Jones, JJ.
    Pittsburg, C. C. & St. L. Ry. v. Stewart, Admx.
    Federal Law Controls Action for Damages from Defective Car of Coal Coming from Other State.
    A car load of coal, shipped into Ohio from another state and transferred to an Ohio railway for its own use, continues to he interstate commerce business while standing in the yard of said road with bulk unbroken, and the law relating to interstate commerce business is applicable to the case of a brakeman who was killed in the shifting of said car from one track to another.
    [Syllabus by the court.]
    Error.

      Robert Ramsey, for plaintiff in error.

      Sherman T. McPherson, for defendant in error.
   SWING, J,

This action is in this court on error to the judgment of the superior court of Cincinnati. In that court it was an action for the wrongful death of Morey M. Stewart, who, at the time of the accident, was a brakeman in the employ of the said the P., C. C. & St. L. Railway Company.

Two principal grounds of error are alleged in this court in said judgment: First, that the evidence does not show in what manner and by what means said Stewart met his death. At the time Stewart was killed he was engaged in braking on a car loaded with coal in the yard of the said company in the city of Cincinnati at about 11:30 o’clock on the evening of June 12, 1912. The last seen of him he was stationed at the brakes on said ear, which car was making what is called ‘ ‘ a flying switch. ’ ’ Shortly afterwards his body was found mutilated on the track near where the switch was being made. No one saw him fall, and the exact manner in which he was killed was not shown. But the evidence fairly shows that the brake was defective, and the platform on which he was compelled to stand in order to operate the brake was defective.

It seems to us, under the evidence, that the jury was justified in finding that he met his death from either one of these defects, or both combined. It seems to us, as it must have seemed to the jury, that this was the most probable and most reasonable cause of the accident. Stewart was, as it was shown, a brakeman of skill and a man of good habits, and the only reasonable hypothesis upon which his death can be predicated must be that it was caused by the defects in the appliances which he was compelled to use in the performance of his duty.

The next question urged is, that at the time of the accident Stewart was not engaged in interstate commerce business. The facts as to this are not in dispute. The car was loaded with coal and was ‘shipped over the Chesapeake & Ohio railway from Handley, West Virginia, on April 24, 1912. It was received by plaintiff in error in the city of Cincinnati, and by it transferred to its Undercliff yard four or five miles east of Cincinnati, where it remained until the day of the injury. The car was intended for use at the power hoRse of the said company in said city. The bulb had not been broken and it was in the same condition as when received from said Chesapeake & Ohio Bailway Company. It seems to us that this was still interstate commerce business and, being such, that the laws of the United States applicable to such business applied to this case.

The other question raised in the case in regard to the charge of the .court, we do not think was well taken; on the whole, we think the charge was fair and correct, and therefore hold that there is no error in the record, and the judgment will be affirmed.

Judgment affirmed.

Jones and Jones, JJ., concur.


author: ALLREAD, J.

text:
    DESCENT AND DISTRIBUTION.
    [Madison (2nd) Court of Appeals,
    July 25, 1913.]
    Allread, Ferneding and Kunkle, JJ.
    Treat v. Bessey, et al.
    Nonancestral Real Estate Descends per capita to Nephews and Nieces as Next of Kin and by Representation to Issue of Deceased Niece.
    Where an ancestor dies seized of nonancestral real estate, leaving as next of kin nephews and nieces and issue of a deceased niece, the inheritance descends per capita to the nephews and nieces — the issue of the one deceased taking a share by representation.
    [Syllabus by the court.]
    Appeal.

      David K. Watson and Chris. A. Weldon, for Lincoln A. Weldon and Percy Howard.

      M. J. Sanford and George A. Allen, for Howard H. Treat, Wm. A. Howard and Belle Bessey:
    Cited and commented upon by the following authorities: Ewers v. Follín, 9 Ohio St. 327; Parsons v. Parsons, 52 Ohio St. 470, [40 N. E. Rep. 165] ; Walker, Am. Law (10 ed.) p. 410, Sec. 3; 4 Kent, Commentaries p. 375; Dutoit v. Doyle, 16 Ohio St. 400; Goff v. Disiennet, 33 O. C. C. 234 (14 N. S. 557); 14 Cyc. 53.
   ALLREAD, J.

Marion Howard on January 1, 1912, died intestate, without issue and unmarried, seized in fee simple of nonancestral real estate consisting of 1128 acres of land in Madison and Champaign counties, and leaving as nest of kin Lincoln H. Weldon, only child of Mary Howard Weldon, a deceased sister; Percy Weldon, only child of Clinton Howard, a deceased brother, and William A. Howard, Belle Bessey, Mary Arter and Howard H. Treat (son of Emma F. Treat, deceased),-children and representatives of Napoleon Howard, a deceased brother.

Lincoln H. Weldon and Percy Howard each claim one-third of the estate by right of representation. The other nephews and nieces and the representative of the one deceased claim that the distribution should be in equal shares.

The sole question, therefore, is whether the estate descends to the nephews and nieces per stirpes or per capita.

The claimants under the per stirpes theory rest upon Subd. 3 of Sec. 8574 G. C., providing that in the absence of issue and husband or wife relict “the estate shall pass to the brothers and sister of the whole blood, and their legal representatives. ’ ’

The per capita claimants rely upon Sees. 8581, 8582 and 8583 G. C., which are as follows:

“Section 8581. When all the descendants of an intestate, in a direct line of descent, are of an equal degree of consanguinity to the intestate, whether children, grandchildren, or great-grandchildren, or of a more remote degree of consanguinity to such intestate, the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be.
“Section 8582. If some of the children of such intestate are living, and others are dead, the estate shall descend to the children who are living, and to the legal representatives of such as are dead, so that each child of the intestate who is living will inherit the share to which he or she would have been entitled if all the children of the intestate were living, and the legal representatives of the deceased child or children of the intestate inherit equal parts of that portion of the estate to which such deceased child or children would be entitled if such deceased child or children were living.
“Section 8583. The provisions of the next preceding section shall apply in all eases in which the descendants of the intestate, entitled to share in the estate, are of unequal degree of consanguinity to the intestate, so that those who are of the nearest degree of consanguinity, will take the share to which he or she would have been entitled, had all the descendants in the same degree of consanguinity with him or her, who died leaving issue, been living.”

Standing alone, clause 3 of Sec. 8574 would probably justify the per stirpes distribution, but we think it clear that Sec. 8574 must be construed in harmony with Secs. 8581, 8582 and 8583, and that See. 8574, being general, yields to Secs. 8581, 8582 and 8583 in cases falling within the special provisions of the latter sections.

It is argued with great earnestness by counsel for the per stirpes claimants that the sections of statute last cited should be confined and limited to lineal issue and not extended to collateral descent.

We are not, however, called upon to construct an interpretation of this statute as of first impression. We have carefully compared Secs. 8574, 8581, 8582 and 8583 G. C., with the corresponding sections of the act of 1853 and find no material difference in respect to the present controversy.

The case of Ewers v. Follin, 9 Ohio St.; 327, decided under the act of 1853, is parallel and decisive. In that case it was held: . “By the provisions of Sec. 10 of the act regulating descents, passed February 24, 1831, when an estate descended to nephews and nieces, legal representatives of brothers and sisters, no brother nor sister of the intestate surviving, the nephews and nieces took per capita; and if a nephew or niece had died before the intestate, leaving children, such children took per stirpes the share of the deceased parent. This rule has not been altered by Secs. 6, 7 and 8 of the present act regulating descents. ’ ’

Gholson, J., in the opinion, in analyzing Sec. 6 of the act of 1853 (now Sec. 8581 G. C.), in respect to collateral descent, says: “There is some ambiguity arising from the language employed in See. 6 which has probably led to the reservation of the question in this case. It might, upon, a first inspection of that section, be supposed that the ‘descendants’ to which it refers, were the lineal descendants only of the intestate, such as grandchildren and great-grandchildren; but a more careful examination shows the contrary. It will be seen that in Sec. 6 children as well as grandchildren and great-grandchildren are named, which, if the lineal descendants of the intestate alone are intended, would have been unnecessary, the children of - the intestate having been provided for in Sec. 5. The - concluding language of that section also shows, that descendants, in the sense of those to whom the estate descends, were in the contemplation of the legislature. Its provisions are-to apply ‘so that the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be. ’

“Our conclusion is, that the legislature, instead of limiting .the rule as provided in Sec. 10 of the act of 1831, intended to extend and apply it to every ease in which an estate was to be divided among a class of descendants, whether their consanguinity to the intestate be lineal or collateral.’!

It is urged that the subsequent case of Dutoit v. Doyle, 16 Ohio St. 400, is inconsistent with and practically overrules Ewers v. Follin, supra. In Dutoit v. Doyle, there were surviving children and representatives of other children deceased. It was there contended that the grandchildren took per capita in the portion of the estate not taken by the surviving children. It was, however, held by the court that all took per stirpes. This decision is not, in our opinion, inconsistent with Ewers v. Follin, but at most a limitation of Sec. 6 of the act of 1853 to cases where the descendants are all of equal consanguinity, that is, all grandchildren and their representatives, or all nephews and nieces and their representatives, and like cases. No criticism or even reference to the case of Ewers v. Follin is found in the opinion in Butoit v. Boyle, and our view that the authority of the former case over cases involving similar facts is not shaken or destroyed is confirmed by the fact that Scott, J., who wrote the opinion in the latter ease and Brinkerhoff, J., who concurred therein, also concurred in the decision and opinion in the former case. It is hardly conceivable that these eminent jurists would have overruled their former decision without some comment.

The cases of Brower v. Hunt, 18 Ohio St. 311; Martin v. Martin, 56 Ohio St. 333 [46 N. E. Rep. 981]; Mooney v. Purpus, 70 Ohio St. 57 [70 N. E. Rep. 894], and Miller v. Miller, 34 O. C. C. 43 (15 N. S. 481), are cited, but we find nothing therein inconsistent with Ewers v. Follin as applied to cases falling within the special provisions of Sec. 6 of the act of 1853 (now See. 8581 G. C.).

The case of Miller v. Miller, supra, involved the time of the vesting of a devise. The court having held that the estate vested at the death of the testator, when two of the brothers were surviving, very properly held that the estate descended per stirpes, in harmony with the authority of Dutoit v. Doyle.

In the ease at bar, there being no children or husband or wife relict, and all the brothers having deceased prior to the death of Marion Howard, leaving nephews and nieces and the representative of one deceased as the next of kin, the case falls clearly within the decision of Ewers v. Follín.

Counsel upon both sides have referred to various decided cases in other states. Some of these we have examined, but we do not deem it important to review the cases outside of the state, as we think the law of the present case is settled by Ewers v. Follin.

We have been very much interested in the presentation of this case and in the investigation of the questions involved. The case has been fully and ably argued by counsel and the labors of the court very much reduced by their efforts.

The conclusion of the court is that the estate descends per capita to the nephews and nieces, the plaintiff taking the share of his deceased mother.

Decree will be awarded accordingly.

Ferneding and Kunkle, JJ., concur.


author: JONES, T. A., J.

text:
    CONTRACTS — ELECTIONS—PUBLICATION*
    [Scioto (4th) Court of Appeals,
    November 20, 1913.]
    Jones, Walters and Sayre, JJ.
    William M. Miller v. Glockner et al.
    1. Contract for Editorial Neutrality of Newspaper in Election Cam*paign Violates Corrupt Practices Act
    A contract providing for the editorial neutrality of a newspaper,relating to a policy to he voted upon at a public election, is void as being against public policy and in violation of the' state corrupt practices act.
    2. Contract for Advertisements in Newspaper and for Neutrality itrCampaign Issue not Divisible.
    An agreement to pay an agreed price per inch for advertisements^ on consideration that the newspaper would print the same for' that price and remain neutral during the campaign is not'divisible, hut is an entire contract. In such case one of the-' considerations being illegal, the entire contract is void.
    3. Newspaper cannot Affirm Part of Contract of Agent to Publish Advertisements for, and Remain Neutral in Election Campaign and Disaffirm Invalid Part.
    Where the newspaper’s agent enters into such an agreement with, another, without authority from his ■ principal, the latter cam not affirm a part of such contract and disaffirm the balánce,, and since recovery is predicated on such contract the principal’s action must fail.
    [Syllabus by the court.]
    Error.

      A. H. Bannon, for plaintiff in error.

      Miller, Milner & Searl, for defendants in error.
    In the court of common pleas William M. Miller, the owner of a newspaper printed in Scioto county called The Blade,, brought an action against the defendant in error and some 200' others upon an account for space furnished the defendants for' advertising purposes. The petition alleged that the advertising-space was sold to the defendants at their instance and request,, and they agreed to pay the price named in the account.
    In their amended answer the defendants allege that the actual contract between them and the newsp'aper was that they were to pay the price agreed upon and that, as a part consideration therefor, plaintiff’s newspaper would be and remain entirely neutral during the campaign upon a wet-and-dry issue which was to follow.
    The facts, as appear from the record, show that the defendants had organized in the city of Portsmouth what was known as “The Business Men’s League of Scioto County, Ohio.” This league was conducting the wet side of the campaign, which was to end on October 26, 1911. A man by the name of Weaver solicited advertising matter from the Business Men’s League, and an agreement resulted by which the league was to furnish advertising matter to The Blade at the same price they were paying The Portsmouth Times, a newspaper of the same city. The newspaper also was to remain neutral during the entire campaign. For these two considerations the Business Men’s League agreed to advertise in The Blade and to pay the price agreed upon. No question is here made as to the price charged in the account, but it appears that about nineteen days before the campaign ended The Blade violated its obligations of neutrality and became an advocate of the dry cause.
    This ease was tried to the court without the intervention of a jury, and the judgment below was on behalf of the defendants.
   JONES, T. A., J.

The first question that arises upon the record is: Was the agreement upon the part of the newspaper to remain neutral during the campaign void?

The newspaper is an important factor in molding public opinion. Its patronage largely depends upon its advocacy of policies sanctioned by its readers. By reason of its high position in our political economy its views on questions of private and public morality are stamped upon the individual. Often it does the latter’s thinking, and very often its editorial policies find expression in the voter’s ballot. The public policy, therefore, would require that its conscience could not be subject to barter, especially on those questions affecting the electorate. Buying its neutrality on election issues is as reprehensible, as a purchase of its active editorial policy.

There are a large number of authorities in cases analogous to this which hold that the purchase of newspaper influence outright in behalf of the candidacy of a particular person is void as against public policy. And there is all the more reason to hold judicially that the secret purchase of the editorial influence of a newspaper is void for the same reason.

This view has been upheld by the supreme court of Vermont, in 1902, in the case of Livingston v. Page, 74 Vt. 356 [52 Atl. Rep. 965; 59 L. R. A. 336; 93 Am. St. Rep. 901].

We hold, therefore, that that portion of the contract between the parties which bound The Blade to observe neutrality during the wet-and-dry campaign was void at common law as against public policy. In addition to this, we are also of the opinion that it was in violation of the corrupt practices act of Ohio (102 O. L. 327, Sec. 26).

That act provides that any person is guilty of corrupt practices if he directly or indirectly promises to pay money or other valuable consideration for any other purpose than the matters therein stated. In relation to newspaper advertising one of the matters therein stated is for ‘ ‘ the pay of newspapers for advertisements, pictures, reading matter and additional circulation.”

In the construction of this act the maxim “expressio unius exclusio alterius est” may be applied in this case, and would seem to negative any other act in connection with the payment of money to the newspapers. However, the section closes with the provision that any payment whatsoever, except as therein provided, is declared to be corrupt practice.

The provision that the newspaper should maintain its neutrality being void, was the whole contract void? This depends on whether the consideration was divisible or entire. A ■ consideration on the part of the defendants was the payment of the same rate as The Times charged for such printing. For this the newspaper was to print it for the same price charged by The Times and was to remain neutral during the campaign. The plaintiff was to do both for the price promised. How much of the. price was for the advertising and how much for its neutrality can not possibly be determined. It is impossible to separate them.

Authorities supporting this view in analogous cases are numerous. The following cases arose out of divisible contracts, and where the considerations were separable the actions were •sustained: Widoe v. Webb, 20 Ohio St. 431 [5 Am. Rep. 664] ; State v. Board of Education, 35 Ohio St. 519. Plaintiff in error ■relies on the dictum of Scott, 0. J., in the former case, where, ■on page 435, he says: “When, however, for a legal consideration, a party undertakes to do one or more acts, and some of them are unlawful, the contract is good for so much as is lawful, .and void for the residue.”

Counsel then argue that, since the promise of the defendants to pay was lawful, if one of plaintiff’s acts was lawful and the other unlawful, the contract is good for so much as is lawful.

The weakness of this lies in the fact of inability to separate the lawful and unlawful acts which formed the inducement to pay.

The dictum just advocated must be construed in view of the case decided, where the price paid for the lawful and unlawful acts could be separated, for the jurist states the converse of the proposition as to entire contracts as follows:

“Whenever the unlawful part of the contract can be separated from the rest it will be rejected, and the remainder established. But this can not be done when one of two or more considerations is unlawful, whether the promise be to do one lawful act, or two or more acts, part of which are unlawful; because the whole consideration is the basis of the whole promise. The parts are inseparable.”

That the neutrality illegally contracted for was a valuable inducement for the promise of the defendants is beyond question; but the value of that neutrality was not fixed by the parties, nor can it be separated in the price contracted for.

One question presented in the case was whether the agent, Weaver, in acting for the newspaper, acted without authority" and without the scope of his employment. Touching this question various exceptions were taken by the plaintiff below, but in our view of the case this question becomes immaterial and it is unnecessary to decide, upon the record, whether the agent was in fact acting within the scope of his authority. The action was brought by his principal upon an express contract for an agreed price which the defendants promised to pay. The amended answer concedes the agreement as to price, but alleges that a part of the consideration was that the newspaper should remain neutral during the entire campaign. The newspaper did accept the advertisements and remained neutral for the period of about one month, but on October 7, nineteen days before the end of the wet-and-dry campaign, it actively espoused the dry cause.

Since the action was predicated upon an express contract made by the principal’s agent, and since a portion of the consideration passing under the contract to the defendants was legal and a part illegal, and the consideration inseparable, we are unable to see how the plaintiff can maintain his action upon the contract. There was no meeting of minds upon the part of the defendants in relation to any other contract than that made by the agent. It is this contract on which plaintiff has predicated his recovery, and in this character of a suit he will not be permitted to ratify a portion of it and disaffirm the balance, if the contract is entire.

"Whether plaintiff knew before the bringing of his action that his agent had made an illegal contract is only inferentially proven by the record. If he had this knowledge when he filed his action this case would be upon the same plane as that reported in one of the leading cases on agents, Shoninger v. Peabody, 57 Conn. 42 [17 Atl. Rep. 278; 14 Am. St. Rep. 88]. That case cites the case of Billings v. Mason, 80 Me. 496 [15 Atl. Rep. 59], which comments upon the right to predicate an action on a contract in cases of this kind. Whether plaintiff knew that part of the contract was illegal at the time of his action or not seems to us immaterial, for the reason that since" the real contract was brought into the ease by the amended answer of the defendants he is attempting to obtain the relief of the court, upon the facts related, by reason of an express contract made by his agent with the defendants.

Since one of the considerations which the newspaper was to perform could not be apportioned we are unable to see how the principal can obtain relief from this court by an attempted ratification of a portion of a contract of this character.

For the reason stated it is not necessary to pass upon the question of fact whether the agent exceeded his authority in making the illegal stipulation in the contract and whether the court below erred in the rejection of testimony touching that issue.

■The judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Walters and Sayre, JJ., concur.


author: METCALFE, J.

text:
    HIGHWAYS — NEGLIGENCE.
    [Trumbull (7th) Court of Appeals,
    September 24, 1913.
    Metcalf, Norris and Pollock, JJ.
    Louie Stockberger v. Ames Shovel & Tool Co.
    Question of Negligence of Driver of Vehicle, Injured by Runaway Team After Safely Passing through Lane or Logs Obstructing Sides of Public Highway for Jury.
    The defendant had piled saw logs for a distance of about three hundred feet upon both sides of the public highway, leaving only the traveled part of the highway free. Plaintiff, while driving between these piles of logs, observed a runaway team approaching him from behind. By running his horse he succeeded in getting past the logs, but within a short distance was struck by the team and injured.
    Held: It was error for the trial judge under the circumstances to direct a verdict for the defendant. Whether under the circumstances the logs piled upon the highway by preventing the plaintiff from the use of the entire roadway to escape from the runaway team was the probable cause of the accident, was a question for the jury and not for the trial judge.
    [Syllabus by the court.]
    Error.

      Webb <& Webb, for plaintiff in error.

      Fillius & Fillius, for defendant in error.
   METCALFE, J.

Plaintiff here, Lonie Stoekberger, was plaintiff below. The action was brought to recover damages for injuries sustained by the alleged negligence of the defendant. The trial judge, at the close of the plaintiff’s evidence, on motion directed a verdict for the defendant. That is the error complained of.

The defendant was engaged in shipping saw logs at the railroad station at Hiram, Portage county. Near the station, for a distance of about 300 feet, the defendant had piled saw logs on both sides of the highway and within the limits thereof, leaving only the traveled strip in the center free. While plaintiff was driving with a single horse and buggy on the road between these piles of logs he observed a runaway team drawing a heavy lumber wagon approaching him from behind. On account of the logs there was no opportunity for Mr. Stoekberger to turn out on either side of the road. He tried to avoid the team by whipping his horse into a run and succeeded in getting past the log piles, but within a short distance was overtaken by the runaway team, which ran into his conveyance and injured him. The trial judge directed a verdict upon the theory that the running away of the team and not the piling of the logs on the highway was the sole producing cause of the accident. In this we think there was error. The highways of the state are to be kept open and free for the use of the public, and no one has a right to place obstructions thereon which will prevent the free use thereof, especially in ease of an emergency. Mr. Stockberger was confronted with an emergency, that is to say, avoiding the runaway team. He had an undoubted right to use the entire highway for that purpose. The question is not whether he would have so used it, or whether it would have been.wise or unwise for him to do so, but was he deprived of an opportunity to turn out of the traveled part of the highway upon one side or the other if, under the circumstances, his judgment dictated that as the safe course to pursue ? Or, to put it another way, did the accident result as a natural and probable sequence from the fact that the logs were piled upon the highway and the plaintiff was thus prevented from using the entire road as means of escape? It is possible, of course, that he might have avoided the injury after passing the logs, but that is a question for the jury solely and not for the trial judge.

There are many cases cited which undoubtedly sustain the defendant’s theory of proximate cause in this ease, but to adopt it would be to exclude the existence of the logs upon the highway from the consideration of the jury altogether. The later and better cases, it seems to us, point out a better rule, which is well illustrated in the case of Meyer v. Railway & L. Co. 116 Wis. 336 [93 N. W. Rep. 6]. The first proposition of the syllabus is:

“In an action for personal injuries, an instruction to the jury defining ‘proximate cause’ as the ‘direct and natural,’ and the ‘direct and producing cause without the existence of which such injury would not have occurred’ is incorrect. It is not essential that the negligence complained of should be the direct ' cause of the injury. It is sufficient that the natural and probable cause, from which an ordinarily prudent and intelligent person ought, in the exercise of such intelligence, to have foreseen that an injury might probably result from the alleged negligence under like circumstances.”

The trial judge in this case on the question of proximate cause gave the following instructions to the jury, page 339:

“So that, to answer this question in the affirmative, you will have to find two things: First, that the want of ordinary care on the part of the servant or servants of the defendant was the direct and producing cause of the injury, without the existence of which such injury would not have occurred; and second, that the injury resulting therefrom was such as a person of ordinary intelligence and prudence would, in the light of the surrounding circumstances, have reasonably foreseen as the probable result of such want of care. ’ ’

Speaking of this charge the judge delivering the opinion says, page 339:

“It cannot be doubted that this instruction is incorrect in several respects. Primarily, it is said that the negligence, in • order to be the proximate cause of the injury, must have been the ‘direct and natural’ and the ‘direct and producing cause, without the existence of which such injury would not have occurred. ’ It is somewhat surprising that, after all that has been said by this ■court in recent years upon this subject, correct definitions of this somewhat metaphysical conception of proximate causation in cases of negligence should be evaded by trial courts. It is not essential that the negligence should be the direct cause of the injury. It suffices that it is the natural and probable cause. It is the natural cause when it acts directly in producing the injury, or sets in motion other causes so producing it and forming a continuous, chain in natural sequence down to the injury; ■thus linking the negligence with the injury by a chain of natural ■and consequential causation, although the former may be neither the immediate nor the direct cause of the event. But such causation cannot be proximate cause in law to arouse liability unless an ordinarily prudent and intelligent person ought, in the exercise of such intelligence, to have foreseen 'that an injury might probably result from the negligence under like circumstances. ’ ’

This case, it seems to us, makes clear the distinction we have been attempting to make here, viz., that the proximate cause of the injury in this case is not necessarily the case which directly produced the injury, that is to say, the running away of the team, but it is that cause which from all the facts proved an •ordinarily careful and prudent person would say probably led to the final event as a natural consequence. This is a question for the jury and not for the trial judge. The judgment is reversed.

Judgment reversed.

Norris and Pollock, JJ., concur.


author: WILDMAN, J.

text:
    EVIDENCE — INSURANCE—PLEADING.
    [Lucas (6th) Circuit Court,
    February 26, 1910.]
    Parker, Wildman and Kinkade, JJ.

      Pacific Mutual Life Ins. Co. v. Charles W. Barnes.
    1. Schedule of Warranties Attached to Life Policy Counter Agreements by Insured.
    A schedule of warranties attached to a policy of insurance, while-no part of the contract of insurance, will nevertheless be regarded as counter agreements on the part of the insured made-in consideration of the issuing of the policy; and such warranties are within the contemplation of Sec. 3625 R. S. (Sec. 9391 G-. C.), providing that no answer to an application for insurance-shall bar recovery, unless it appear that it was willfully false, and but for such answer the policy would not have been issued,
    2. Defense of Falsity of Statements by Insured Impose Burden on-Insurance Company.
    An allegation in the answer of an insurance company that certain, statements made by the insured were willfully false, with a denial thereof in the reply, imposes upon the defendant the burden of providing such falsity, and the matter becomes a. question for the jury upon the evidence.
    3. Proofs of Loss in Sealed Envelope Directed to Home Office but Placed in Hands of Local Agent not Filing with Company.
    Evidence that proofs of loss were placed in a sealed envelope, directed to the insurance company at its home office, and that the envelope was thereafter placed in the hands of the local agent of the company, with no proof that it was ever deposited in the mail, is not sufficient to meet the requirement of the-policy that, within twenty days from the happening of the accident, proofs of loss must be filed with the company or furnished in due form at its home office, and in such a case a motion to arrest the case from the jury should be sustained.
    4. Discretion In Trial Court to Permit Technical Lack of Evidence Considered by Reviewing Court and New Trial Granted Rather than Final Judgment for Defendant.
    But inasmuch as discretion rests in a trial court to permit a technical lack of evidence to be supplemented by additional evidence, or in a case of this character by the filing of an amendment alleging waiver of proofs of loss, the order of the reviewing court will be the remanding of the case for a new trial, rather than a final judgment in favor of the defendant company.
    Error to common pleas court.

       Dismissed, no op., Pacific Mut. Ins. Co. v. Barnes, 57 Bull. 166.

   WILDMAN, J.

Charles "W. Barnes sued the plaintiff in error in the court of common pleas upon an accident insurance policy, and olu tained a verdict and judgment for $1,500 and some interest. To reverse this judgment a proceeding in error was instituted here. We have had before us at the present term another proceeding between these parties for a reversal of another judgment, and perhaps some of the principles announced in that case have application to the case at bar. It is urged, however, that the cases are not in all respects upon the same footing, and that the judgment of the court in this ease should be reversed .upon some grounds not urged in the other.

The defendant company, for defense against the claim of the plaintiff, insists that he is not entitled to recover, first by reason of breaches of certain warranties alleged to be incorporated in the policy of insurance attached to the plaintiff’s petition and made part thereof; second, that the plaintiff has •offered no proof of one fact vital to his recovery, to wit, that proofs of the accident, after preliminary notice to the company, were filed with the company or furnished to it at its proper •office at Los Angeles, California, within twenty days from the time of the accident. It is claimed also that the plaintiff’s injuries were not caused by accidental means, but that they were voluntarily incurred by him, and further that it does not appear that the loss of the plaintiff’s arm, which was the serious injury sustained, arose solely from an accident. I have stated these claims in general terms and without any effort to express with fullness the assertions of the defendant. The substantial errors claimed and relied on are that the court should have arrested the case from the jury upon the motion of the defendant, that the court should have granted a new trial when it was asked for, and that the court erred in rendering judgment for the plaintiff below upon the verdict.

As to the alleged breaches of warranties said to be incorporated in this policy, it is true that the policy, which is before me and which is made a part of the plaintiff’s petition in the court below, contains what the policy calls a “schedule of warranties.”

The caption, in those words, “Schedule of Warranties,”' followed by Art. 7:

It is agreed that the following statements, together witb the payment of the stated premium, are the consideration for1 the issuance of this policy, and said statements are made by the insured and warrantied by him to be complete and accurate.”

Now it will be noted at the outset in the consideration, of these statements, that they are not said to be a part of the contract; they are said to be 'warranties by the party insured,, to be statements by him. In other words, they are the counter agreements on his part, not the contract of the insurance company. It seems to me that this distinction as to what is contracted by the insurance company and what’ is agreed or promised by the insured is of consequence in considering whether or not the statute enacted by our legislature, Sec. 3625 R. S. (Sec. 9391 G-. C.) has any application. That statute is as follows:

“No answer to any interrogatory made by an applicant,, in his or her application for a policy, shall bar the right to recover upon any policy issued thereon, or be used in evidence upon any trial to recover upon said policy, unless it be clearly proved that such answer is willfully false, was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and, also that the agent or company had no-knowledge of the falsity or fraud of such answer.”

In the case at bar there is no independent application for a policy. The statements are not in the form of answers to interrogatories.

In the case of North American Accident Ins. Co. v. Sickles. 13-23 O. C. C. 594 (3 N. S. 222), when Judges Parker, Haynes: and. Hull constituted the members of this court, a case was before it in which there had been an application for a policy, but the statements made by the insured in that application were-not in the form of answers to interrogatories. There were no interrogatories in the application, but the statements were declarations of certain alleged facts. Without discussing the case, it suffices to say that this court held upon elaborate reasoning and citation of authorities, that while there were no formal answers’ to interrogatories, the statements made by the insured were equivalent to such: they were the considerations for the policy, they were statements upon which the policy was issued. They were made by the assured for the purpose of giving information to the company unquestionably sought by it as the basis for its determination whether or not it would issue the policy.

While perhaps extending the statute somewhat beyond its letter, but considering its manifest purpose and spirit, we think that the statements made by the insured in the policy before us, although not in the form of an application, but embodied in the policy itself, are nevertheless the statements of the insured such as the legislature had in contemplation when this enactment was made. There is no principle which could apply to the formal written application as a reason for such legislation that would not apply to similar statements made by the insured and embodied in the policy of the insurance company which signs the policy; which says that they are the statements of the insured and that they are the consideration for the policy, but as they say, statements by the insured which they claim amount to warranties, but which we think the legislature has said are not to be deemed warranties and are not to invalidate the policy unless they are falsely, fraudulently made, and the insurance company clearly shows such facts, and also that it relied upon such statements and would not have issued the policy but for them.

There is, however, in the answer of the defendant here an allegation that at the time of the making of these statements the assured knew them to be false; that is, that he made certain representations in these statements as to his not having made application for other insurance, and having been rejected, etc., and they say that he knew at that time, and they did not know, that these statements were not correct and were untrue, thereby perhaps bringing their defense, so far as it is stated in the answer, within the terms of the statute. There is, however, such a denial in the reply as imposed upon the defendant the burden of proving this, and this matter became then upon the evidence a question for the jury.

The court, after overruling the motion of the defendant to arrest the case from the jury, charged the jury that there was but one issue in the case. I will invite attention later to the precise language of the charge in this respect. But in the meantime, and during the progress of the trial, the question had arisen as to whether proof of loss had been sent to the company at its office in Los Angeles, and received by it, within the period prescribed by the policy. There was evidence as to the preparation of proofs of loss in due form, and the placing of them by the assured in the hands of one Lownsbury, a local agent for the company, and some further proof indicating an intention to forward them to the company’s office. The assured, the plaintiff below, offered evidence that these proofs were put into a sealed envelope and that that envelope was directed to the company at Los Angeles, California; but finally the documents were left in the hands of the agent, Lownsbury, and there is no positive proof that the paper was ever deposited in the mail to be sent to Los Angeles. Without considering this evidence further, or saying anything more about it, it is enough to say that we think that the evidence to sustain plaintiff’s case was not sufficient in this respect to permit the case to go to the jury for the determination of the question as to whether it was or was not received by the company in Los Angeles, and that the court should have sustained the motion of the defendant to arrest the case from the jury. In refusing to do this, we think that the court erred.

The verdict having been rendered in favor of the plaintiff, the defendant asked the court for a new trial. This should have been granted, but it was refused, and in this the court •erred. For these errors of the court, which we have recited, the judgment will be reversed.

Now it is insisted by counsel for plaintiff in error that upon reversal for error of the court in overruling a motion for an instructed verdict, no discretion is allowed to the appellate court, but the mandatory duty is imposed of rendering the judgment which the court below should have rendered, to wit, a final judgment for the defendant. This we are not inclined to do. We do not think that the statute and the various adjudications which have been cited, and which we have considered, quite bear out the contention of counsel. It is true that in Whittaker v. Insurance Co. 77 Ohio St. 518, 522 [83 N. E. Rep. 899], there is some language of the judge announcing the opinioü for the court, which would seem to sustain the contention of counsel, but it is but a dictum, and we hardly think that it ought to have the conclusive force urged by counsel. Indeed, we think that the able judge using the language would hardly in a ease like the one at bar, and under the circumstances which have been disclosed to us, express the same view as a concluding decision of the case. In our judgment, to render a final judgment might result in greater prejudice and injustice to a party than to permit the case to go back to the court of common pleas for proper action there.

At the time when this motion was made, what was the error of the common pleas court? It can hardly be contended that no discretion rested with the court of common pleas to permit a technical lack of evidence to be supplemented by additional evidence, or if the matters contended for by the plaintiff could have been sustained by an amendment to his reply, so as to allege a waiver or a claim on the part of the defendant that the proofs of loss had not been furnished in time, it was still within the discretion of the court under the civil code, in furtherance of justice, to permit an amendment of the pleading. What would have been the proper course of the court in the exercise of such discretion we do not desire to intimate, nor indeed have we at the present time any opinion. We think, however, that the court of common pleas ought not in the protection of parties, to be entirely robbed of all power to exercise the discretion which might have been invoked if the plaintiff had not been misled by the view which the court- took of the rights of the parties under the pleading and under the evidence. The court was holding in favor of the plaintiff; that there was but one issue to be submitted, assuming that required notice to the company had been duly given, and the plaintiff was hardly called upon to ask the court for permission to interpose additional evidence upon that issue, or to ask the court for permission to amend his pleading, the court not having found that he could not avail himself of all his rights under the pleadings as they then were. Our final conclusion is that the judgment of the court below should be reversed, and that the cause should be remanded for further proceedings according to law.

Parker and Kinkade, JJ., concur.


author: MARVIN, J.

text:
    ARSON — CRIMINAL LAW — NEW TRIAL.
    [Cuyahoga (8th) Circuit Court,
    January 25, 1909.]
    Marvin, Winch and Henry, JJ.

      Nathan Berman v. State of Ohio.
    1. Variance Between Indictment and Proof as to Name of Owner of Building Burned not Fatal in Arson.
    In a trial for arson where the indictment charged the accused with burning the property of “B. Mirsky,” and the evidence showed that it was owned by “Harry Mirsky,” it is not error for the. court to charge that if the jury found that the person named in the indictment as “B. Mirsky” was the same person as the “Harry Mirsky” who owned the building, the variance would not be fatal.
    2. Proof That Building Burned was the Same one Admitted by Accused in Arson Confession Sufficient.
    In order to authorize the introduction in evidence of an admission by the accused that he was guilty of arson, it is sufficient to show that the building he confessed burning was in fact burned at the time charged.
    3. Trial Judge's Certificate to Affidavits for New Trial That Affidavits in Question Constituted all the Evidence on Motion Hearing.
    In order that affidavits used on a motion for a new trial may be considered by a reviewing court, there must be a certificate of the trial judge that the affidavits in question were all the evidence introduced on the hearing of the motion.
    [Syllabus by the court.]
    Error to common pleas court.

      W. C. Ong and D. M. Bader, for plaintiff in error.

      E. 8. Brudno, for defendant in error.

      Affirmed, no op., Berman v. State, 81 O. S. 508.

   MARVIN, J.

Berman was indicted and convicted of arson; the charge in the indictment was that he burned a building on the —■■- day of December, 1908, which was the property of “B, Mirsky. ’ ’

One of the errors complained of in this proceeding is that the court refused to charge that if the property burned was the property of Harry Mirsky no conviction could be had. The evidence clearly showed that the property was owned by Harry Mirsky. The court on this proposition charged that if the jury found that the person named in the indictment as “B. Mirsky”' was the same person as the Harry Mirsky who owned the building, the variance would not be fatal.

Section 7215 B. S. (Sec. 13581 G. C.) reads:

“No indictment, shall be deemed invalid nor shall the trial judgment or other proceeding be stayed, arrested, or in any manner affected by the omission of the words ‘with force and arms,’ or any words of similar import; nor for the omission of the words ‘as appear by the record,’ nor for omitting to state the timé at which the offense was committed in any case in which time is not of the essence of the offense; nor for stating the time imperfectly; for want of a statement of the value or price of any matter or thing and the amount of damages or injury, in any case where the value or price or the amount of damages or injury, is not of the essence of the offense; nor for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; nor for the omission to allege that the grand jurors were impanelled, sworn or charged; nor for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; nor for want of averment of any matter not necessary to be proved; nor for any ■other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. ’'

Before the enactment of this section of the statute, to wit, Ma.y 6, 1869, the contention here made would have been sustained. See Price v. State, 19 Ohio 423. To the same point is State v. Hill, 48 W. Va. 132 [35 S. E. Rep. 831], To these authorities might be added many other outside of Ohio where no such statute- is in force, but the rule is materially changed in this state by the section referred to.

In the ease of Mulrooney v. State, 26 Ohio St. 326, the indictment charged that certain property in which a burglary was •committed was the property of two persons, naming them. The ■evidence showed that the property was owned by but one of these two people. It was held that this was not a variance because of our statute.

In the case of Ratekin v. State, 26 Ohio St. 420, the charge was that a crime had been committed at the barn of a party named. The evidence showed that the building was erected and used as a place for the storing of tobacco. It was held that this was not a fatal variance.

In the case of Mead v. State, 26 Ohio St. 505, the indictment charged that the prisoner murdered Elisha Davidson. The evidence showed that the person slain was Elijah B. Davison, and the court say that it was a question for the jury to determine whether the person actually slain was the person intended by the name used in the indictment. In that case the trial court erred in its finding and in instructing the jury to the effect that by the name used in the indictment the person actually slain was the one intended, and for that reason the case was reversed, although the court in its opinion say that, the trial court was probably right in holding that the person slain was the one intended to be named in the indictment,, but say that should have been left to the jury.

In the case now under consideration it was left to the jury, and an examination of the record can leave no doubt that it was the intention of the indictment to name the real owner of the building, who turned out to be not B. Mirsky but Harry Mirsky.

There was no error on the part of the court in this regard.

It is complained further that the court erred in this regard, and that it was error on the part of the court in admitting testimony of the witness Cohen with respect to a conversation held between him and the prisoner after the fire, in which the state claims that the prisoner admitted the commission of the crime. It is said that this should not have been admitted because it had not been shown by the state that the fire which consumed the building was of incendiary origin and that before a confession or admission of the prisoner may be' used against him, it must first be shown that the crime had actually been committed by somebody. We think that counsel for plaintiff in error misconstrue the rule in this regard. Conceding the law to be that the state can not convict or even that the state can not receive evidence of admissions made by the prisoner, tending to show guilt on his part, unless it be first shown that the1 thing charged against him as a crime has actually taken place,, still when it is shown that the building charged to have been burned by the prisoner at a given time, is shown to have been burned at that time, it is certainly admissible to show that the prisoner admitted that he did the burning. If this were not true, a dead body might be found with a bullet wound indicating that the cause of death was the shooting into the head- of the deceased of a pistol bullet, and that immediately after such finding of the dead body a person should admit that he did the shooting, it would have to be held under the contention made, that it must have to be shown by other evidence first, before such admission could' be received, that the dead person had actually been murdered. This is so manifestly a misconstrue-' Lion of the rule as to show its absurdity.

Before the testimony of Cohen was received, it was clearly shown that the building which it was claimed the prisoner fired was actually burned at the time charged. The court was right, in admitting the testimony of Cohen as to what the prisoner said to him about it.

At the close of the evidence on the part of the state, a motion was made by the prisoner to have a verdict of not guilty directed; this was overruled. It is urged that this motion should have been granted because of the failure of the state to make a case by its evidence against the prisoner.

The state had shown by Cohen, who testified in a very broken way, because of his not understanding the English language (and it is somewhat difficult to understand just what he does mean in a part of his testimony), that Berman in talking with him (Cohen) about the burning of this building on "Woodland avenue, which is the property that was burned, and the property meant in the indictment, that he (Berman) had benzine and put it around the stove. From the rest of his testimony, broken as it was, it might reasonably be inferred at least that Berman when describing how a store could be burned, was telling how this store was burned.

Jessie Dorff testified that on the night of the fire, just before the fire broke out, she saw members of Berman’s family carry goods from the store. She saw them go in and out. Being asked on direct examination if she saw Berman, she said no, but upon cross-examination, she says she saw Berman at the store packing the goods,' which the other members of the family were carrying out, but she did not see him carry any out. While the story of this witness is, when considering all the circumstances of the case, not altogether probable in all its parts, yet if her testimony were believed, or if that part of it were believed in which she testified to seeing these goods being packed up by Berman and carried out of the store just before the fire by members of his family, it would be very strong in showing that in connection with the fact that the fire just afterward broke out, that Berman had something to do with that fire. There was testimony of other witnesses that the fire seemed to start all about the store, or at various places in the store all at one time. This fact, in connection with the evidence to which attention has just been called might well have induced the jury to believe that these goods were being thus packed and carried out in anticipation of that fire, which he started simultaneously at various places in the store. The two witnesses to whose testimony attention has specially been called, did not make a first rate showing for themselves by their testimony, but we are not prepared to say that the jury should not 'have- believed that Jessie Dorjf did not see what-she says she saw nor that Berman did not say to Cohen what Cohen says he said. The court did not err in overruling the motion to direct a verdict for the defendant.-

Attention has already been called to the charge of the court in reference to the identity of the person named in the indictment as the person who actually owned the property.

What was said by the court was a proper submission of this question to the jury, and the charge, as a whole, was proper. Indeed, but for this part of the charge, it is not complained of.

A motion was made for a new trial, after the verdict of guilty was returned, and a large number of affidavits were filed in support of that motion. Among them, an affidavit stating that counsel for the state, in his closing argument, said in substance, that if the prisoner was a man of good character, he ought to have, introduced evidence to establish that. That it was .a sad thing that an honest man was not able to produce anybody to testify that he was such. From this affidavit it appears that such language was used; that the objection to it was made at the time, but only that Judge Ong said, “I call the court’s attention to this,” and the court seems to have said nothing. But the court in its charge said to the jury, that no attention should be paid to this language of the prosecutor. If this language was used by the prosecutor it was exceedingly improper, and it would have been well for the court to rebuke counsel who used it, but we are not called upon to say whether, in the absence of an objection being made at the time, what was said by the court in the charge was sufficient to cure the wrong, and we are not called upon to pass upon that, for the reason that for aught that appears in the bill of exceptions, an affidavit may have been filed denying that this language was used. There is no certificate in the bill that all the evidence submitted on the motion for a new trial is contained in the bill. It is certified in the bill that all the evidence introduced or offered at the trial is contained therein. That evidence, of course, is the evidence introduced prior to the evidence upon which the court acted in passing upon the motion for a new trial, and following that come these affidavits, to one of which attention has been called, and nothing to show that these affidavits constituted all the evidence introduced. For aught that appears then, it may have been shown either by affidavit or otherwise that the language was not used.

One matter complained of, to which attention has not been called, is the admission of evidence of other fires, in property occupied by the prisoner. An examination of the record shows that attention was first called to a number of other fires by the prisoner himself, in answer to questions put to him by his own counsel. "We think this opened up the field so as to permit the state to show that there were other fires in buildings occupied by the prisoner, which he had not admitted or attempted to explain, and that there was no error in the admission of such evidence.

The result is that the judgment is affirmed.

Winch and Henry, JJ., concur.


author: JONES, O. B., J.

text:
    BANKS AND BANKING.
    [Hamilton (1st) Court of Appeals,
    March 31, 1914.]
    Swing, Jones and Jones, JJ.

      Peoples Bank & Savings Co. v. Jon Cereguti.
    Pro Forma Witnessing of Making of “His Mark” Does Not Protect the Bank Paying Forged Check of Depositor.
    The burden of justifying payment of a check or draft is on the bank paying; hence, if the signature is by mark and the signature card requires that a signer by mark shall be identified the identifying witness must know the man who made the mark; an identification by one who does not know personally the man making the. mark does not protect the bank paying the draft so signed.
    Error.

      Cohen, Mack & Hurtig and Maxwell & Ramsey, for plaintiff in error.

      Galvin & Bauer, for defendant iri error.

      Affirming, Cereguti v. Peoples Bank & Savings Co. 23 Dec. 220 (12 N. S. 159); affirmed, no op., 91 O. S. 000; 60 Bull. 199.

   JONES, O. B., J.

The defendant in error, who was plaintiff below and whose correct name is Jon Ceregut but whose name was written Jon Cereguti in the second pass book hereinafter referred to and in the original petition, brought this action against the plaintiff in error, who was defendant below, to recover from it the sum of $1,6P0 deposited in its savings department, which had accumulated from deposits made from time to time, no part of which had at any time been withdrawn, and also to recover the accrued interest thereon in the sum of $22.43.

The defendant below admitted that it conducted a commercial and savings bank and that the deposits were made in its savings department pursuant to certain rules and regulations among which were the following:

“4. Deposits and the interest thereon may be withdrawn by the depositor in person, or by written order, but in either case, the pass book must be presented that such payments may be entered therein.
"5. As the officers of the company may be unable to identify every depositor, the company will not be responsible for loss sustained where a depositor has not given notice of his or her book being stolen or lost, if such book be paid in whole or in part on presentation.
"6. In all cases the payment upon presentation of a deposit book shall be a discharge to the company for the amount paid. ’ ’

On June 11, 1908, an account was opened by plaintiff, in the name of Jon Ceregut, who gave his address as 1979 Central avenue, and pass book 2507 containing its rules and regulations in its usual form was issued and delivered by defendant to him, and deposits were made and entered in said pass book from time to time, and interest credited thereon, and on August 11, 1909, the total credits in such pass book amounted to $1,622.43.

At the time of the making of the first deposit the depositor signed a signature card by making his X mark thereon, his name and the words "his mark” having been written on the line opposite the printed word "signature,” together with a statement "to be paid when witnessed by one witness.”

The rules of the company provide that the depositor by signing the signature card thereby assents to the rules and regulations of the company. While the proof fails to show that all of these rules and regulations were made known to or explained to him, he would no doubt be held to be bound by them so far as would an ordinary depositor who could read and write.

No part of this deposit was drawn out until August 11,1909, when a draft in favor of the Capital National Bank of Indianapolis, for $1,600, purporting to be signed on its face by Jon Ceregut, his X mark, and endorsed on the back "Witness to mark G. F. Patterson,” together with a collection form slip from said Capital National Bank accompanied by said pass book Number 2507, were received by the defendant, apparently in the ordinary course of business. The defendant, believing that said signature by mark, to the draft, was genuine, because it was attested by the signature of a person who was then shown in the bank directory to be the cashier of said bank, and supposing that the officer of the Capital Bank who signed as a witness to the mark had satisfied himself as to the identity of the maker of the draft, and relying upon this without further investigation, paid the draft, issuing its draft on a New York bank and sending same to said Capital National Bank. It claims that this payment was made in accordance with its rules and regulations and in the exercise of good faith and reasonable care on its part, and that it was in no way negligent in performing its duty to its depositor.

It appears that the plaintiff below was a foreigner, a native of Roumania, who was extremely illiterate, could not speak or understand English, but only Roumanian and a little German, and was unable to either read or write'the German or the English language; that he was introduced at the bank at the time he made this deposit by one of its own officers named Landesco, with whom he had become acquainted, and that the initial deposit in this bank was a withdrawal from another bank. It appears that he was in the habit of keeping his pass book locked up in his trunk in the room in which he slept, which was also occupied by at least three other foreigners. It also appears that on August 5, 1909, a pass book, No. 3534, was issued by the defendant below, in the name of Jon Cereguti, in which was credited a deposit of $2; that this pass book came into the possession of plaintiff and that on December 26, 1909, a deposit of $271; and on January 10, 1910, a deposit of $30, were all credited in this book. It was not until January, 1910, that plaintiff below learned that the amounts credited to him in pass book No. 2507 had been paid out by the bank. It seems that he desired to again transfer his account from the bank of the defendant company below and deposit it in another bank with which Landesco had become associated, having left defendant’s bank. Ceregut then discovered for the first time that pass book No. 3534 did not represent his entire deposit with the defendant bank and that the bank denied that it was still liable to him for the first $1,600 deposited. His testimony indicates that he thought either that he never had but one pass book and that it was the one then in his possession, pass book 3534, and that it contained all of his deposits, or else that the original book, passbook 2507, had been retained by the bank when his deposit amounted to $1,600 and that the bank had then furnished him the second book. Ceregut’s testimony was given through an. interpreter and is not quite clear as to his ideas, whether he knew he had handled two books or whether he realized that the second book did not contain all the deposits made in the first and thought that for some proper reason the bank saw fit to retain, the first book and allow him to continue to deposit in the second. It is clear, however, that he did not suspect or believe that his pass book showing the $1,600 credit had been stolen or lost until after he had been advised by the bank that this money had been paid out by it.

The case was tried to a jury and resulted in a verdict for the plaintiff, upon which verdict a judgment was afterwards entered by the court.

The principles of law involved in this case are laid down and decided in the case of Hough Ave. Savings Bank Co. v. Anderson, 78 Ohio St. 341 [85 N. E. Rep. 498; 18 L. R. A. (N. S.) 431; 125 Am. St. Rep. 707; 14 Ann. Cas. 479], which is practically decisive of this case. It was there held that the fact of negligence by the bank was properly submitted to, and found by the jury. We think that is true in this case.- There is no question that the money was not paid either to plaintiff or by his order, and that he was in no way responsible for its payment to another person by defendant. The law making a bank responsible for payments made by it upon forged checks or drafts is well settled in Ohio. Dodge v. Bank, 20 Ohio St. 234 [5 Am. Rep. 648] ; Armstrong v. Bank, 46 Ohio St. 512 [22 N. E. Rep. 866; 6 L. R. A. 625; 15 Am. St. Rep. 655].

The draft, the payment of which defendant relies upon, was signed by mark. G. F. Patterson, who witnessed the mark, admits that he made no investigation as to the identity of the man, who was simply introduced to him by a man of whom he knew nothing. The signature card containing plaintiff’s mark, held by the bank, contained the express provision requiring his signature by mark to be identified by one witness. That eertainly meant that the identifying witness must be one who knew the identity of the man who made the mark, otherwise there would be no security in having a witness at all.

The genuineness of the signature must be proved, Greenleaf, Evidence Sec. 558. And one who alleges a signature by mark has the burden of proof, Abbott, Trial Brief (2 ed.) 461. Under the conditions of the deposit in this ease it was essential to the validity of the signature by mark that it be witnessed t>y a person knowing the identity of the man signing, and a signature by mark must be proved as any other signature. 36 Cyc. 455, and cases cited.

In this case there is no question of the fact that plaintiff deposited his money in the bank, and no question of the amount. Evidently the officers of the bank relied entirely upon the action of their correspondent, the Capital Bank. If it was at fault in failing to identify the maker of the draft, the plaintiff in this case can not in any way be held responsible. The burden of justifying the payment is on the defendant. Robison v. Upton, 31 O. C. C. 330 (12 N. S. 314).

In our opinion the answers made to the interrogatories, by the jury, are supported by the evidence. We find no error in the refusal by the court of the special charges relied upon by the •defendant, and we do not believe that the record shows any prejudicial error in the statements made by counsel for plaintiff ■which are claimed by defendant to have constituted misconduct •on his part.

A careful review of the record fails to show any prejudicial error, and the judgment is affirmed.

Swing and Jones, E. H., JJ., concur.


text:
    MASTER AND SERVANT.
    [Hamilton (1st) Court of Appeals,
    March 22, 1913.]
    Swing, Jones and Jones, JJ.
    John Holland Gold Pen Co. v. Juengling.
    1. Casing and Boxing of Shafting for Protection of Employes and “Floors" Contemplated are Work Floors, Sufficiency is Question for Jury.
    The purpose of the statute providing for the casing or boxing of all shafting is for the protection of operatives, and the “floors” contemplated therein are those upon which the operatives are employed, and whether the shafting is so “cased” or “boxed” as to comply with the statute is a question of fact to be submitted to the jury under the evidence and circumstances of a case where injury has occurred to an operative from being caught in shafting alleged to have been exposed or improperly covered.
    2. Official Report of Workshop Visitor as to Safety of Shafting Based on Subsequent Visit Incompetent.
    The official report or opinion of a state visitor of workshops and factories as to the safety of the shafting in which the accident occurred, based upon an inspection made after the accident, is not proper evidence in the trial of an action for damages on account of injuries received in such shafting.
    3. Operative Injured While Attempting Recovery of Article in Manufacture not Contributory Negligence Since Charged with Loss.
    An operative engaged in burnishing penholders can not be charged with contributory negligence in attempting to recover a holder which had fallen under her bench, where it is in evidence that under the rules of the shop operatives were charged with holders which they lost.
    4. Exhibition of Portion of Scalp Torn Off and Preserved' in Alcohol not Prejudicial.
    The plaintiff in the present case had her hair and a portion of her scalp torn from her head by a revolving shaft. Held: That the exhibition to the jury of the scalp, which has been preserved in alcohol, was not prejudicial to the defendant where done with the care and in the manner in which the exhibition was made in this case; nor was'an award of $5,000 as damages for such an injury excessive.
    [Syllabus by the court.]
    Error.

      Victor Eeintz and Geoffrey Goldsmith, for plaintiff in , error.

      Thorne Baker and L. F. Ratterman, for defendant in error.
   JONES, O. B., J.

Plaintiff below, Clara Juengling, was an operative in the gold-pen factory of the defendant. Her duty was to polish pens and penholders by holding them against “buffs” or polishers which revolved above a table and which were operated from a horizontal revolving shaft below the table in front of which she stood. This shafting was about twenty-five inches from the floor and about eighteen inches back from the front of this work table, which was against the back wall and ran from one side wall to the other and varied from about twenty-six to forty-one inches in width.

In looking for a penholder which had dropped from her hands while polishing it, and which she thought was on the floor under this work table, plaintiff placed her head under the edge of the table, and her hair was caught and wound around this shafting, tearing off a considerable portion of her scalp and resulting in great suffering and serious permanent injuries and personal disfigurement and the loss of.her hair.

Negligence was charged against the defendant chiefly in that the shafting in'front of which she worked was not properly cased and guarded as ordinary care and the laws of Ohio required that it should be. Plaintiff relied upon the terms of Sec. 1027 G. C:

“The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein or any part thereof as follows:
“1. They shall case or box all shafting operating horizontally near floors, or perpendicularly or otherwise between, from or through floors or traversing near floors, or when operating near a passageway or directly over the heads of employes. ’ ’

Defendant below claims that this statute had been substantially complied with and that it was in effect “boxed or cased;” that the wall in the rear and. the top of the work table furnished two sides of this “boxing,” and in front, for the greater part of the distance, was a set of five heating pipes, connected with, a single steam pipe, for the remainder of the distance, at the place where the accident actually occurred. These five pipes were placed parallel to each other on a horizontal plane at a level considerably lower than the shaft and further forward. Undoubtedly they did in a manner serve to guard this shaft, but the question whether they were sufficient to constitute the necessary part of the boxing or casing to answer the requirements of the statute may well be doubted, especially ivhen the accident itself shows they did not protect this shafting from the very danger which the statute contemplated.

Counsel for defendant below question the applicability of this statute to the kind of shafting that here caused the injury and undertake to draw a fine distinction between a “structural” floor and a “traffic” floor. The purpose of the statute was undoubtedly for the protection of the operatives, and the “floors” contemplated by it were those on which the operatives were engaged in their labors, and it was probably intended to include shafting sufficiently near the floor to come in contact with operatives upon it. This shafting was undoubtedly so placed as to come within the terms of the statute. Whether it was such a shafting and whether it was so “cased” or “boxed” as to comply with the law were questions of fact which were properly submitted to the jury under appropriate instructions by the court.

Nor was it error in the court to exclude the opinion or report of the witness who was a state official, known as a lady visitor of workshops and factories, as to the safety of this shafting based upon an inspection after the accident. Fowler v. Delaplain, 79 Ohio St. 279 [87 N. E. Rep. 260; 21 L. R. A. (N. S.) 100] ; Laidlaw-Dunn-Gordon Co. v. Miller, 31 O. C. C. 559 (12 N. S. 246).

It is urged by counsel that plaintiff below was guilty of willful and gross negligence in placing herself in sufficient proximity to this shaft to have permitted the occurrence of the injury, because the opening into which she protruded her head was not large or easy of access and also especially. because of the fact claimed by defendant that it was not in any way her duty to look for dropped penholders, but that office was performed solely by the shop foreman. This was disputed by the plaintiff below, and the fact that each operative was charged with each penholder given her to polish, that brooms or broom-handles were provided to help find them on the floor and sweep them out from under the table, and the question of her fellow operative, Mrs. Porter, which immediately led to the accident, whether she had looked for that holder, would seem to support the claim that she was in the performance of her duty.

Another claim of error in the trial below strongly urged by plaintiff in error is that the scalp of plaintiff below, which had been preserved in alcohol, was introduced in evidence and exhibited to the jury against the protest and objection of defendant below and that same was for the sole purpose of exciting the sympathy of the court and jury and constituted misconduct of counsel.

"While this kind of evidence may often be used to their advantage by skillful attorneys for the improper purpose of securing undue sympathy for plaintiff in a trial, it frequently may become necessary to exhibit an injured part of the body to best describe the injury, and in a case like this at bar it might be desirable to show the thickness of the scalp removed or the quality and quantity of hair lost by plaintiff. It often becomes a question of good taste in counsel, and where such evidence is improperly sought to be used to excite sympathy for the injured party it might at times have a different result and create a revulsion of feeling to his detriment.

As to the propriety of this kind of evidence, we quote the latter part of Sec. 1158 of 2 Wigmore, Evidence:

“No doubt the trial court has a discretion, which it shall firmly exercise, to prevent the abuse of such a mode of proof. But it seems too rigorous to forbid a party to prove his case by the clearest evidence; and a jury which through violent prejudice would not be restrained by the court’s instructions would •probably give way to its prejudice even without this evidence. The courts impose no prohibition, except so far as the discretion of the trial court may prevent abuses.”

In Rost v. Railway, 10 App. Div. 477 [41 N. Y. Supp. 1069], cited by plaintiff in error, where the court held ‘ ‘ that the exhibition of a child’s foot which had been amputated and preserved in a glass jar, was error which warranted a new trial where it appeared that the direct tendency was to arouse the prejudices and inflame the passions of the jury into an angry resentment against the defendant” in discussing the law on this subject the court say on page 480 of its opinion:

“It is the undoubted rule that the exhibition of an injury or an injured member of the body to the jury is proper where it is the subject of examination, and where such exhibition is necessary to enable the jury to understand the circumstances surrounding the injury, or to obtain a more comprehensive and intelligent conception of the conditions which existed when the injury was received, or of the character of the injury itself. But where such exhibition is not essential or necessary to enable the jury to better understand the conditions under which it was received, or where the jury may be led to illegitimate considerations on account of it, then it may become improper.’”

Along the same line defendant below objected to the fact that plaintiff below, on one occasion during the trial, sat in the court room for a short period with her hat removed, showing her head denuded in' a large part of its hair and scalp. The head had been exhibited to the jury in the course of her testimony. As soon as objection was made by counsel, by direction of the trial judge, plaintiff replaced her hat upon her head, although the weather was warm and she explained that it oppressed her head. This would come within the sound discretion of the court under the law as above stated, and in our opinion was properly treated by the court. And the suggestion by counsel for defendant below, in cross-examination of plaintiff’s physician, that the injury to plaintiff’s head could be better shown by an X-ray picture than by an examination of the head itself or of the scalp which had been torn from it, was rejected by the expert physician and does not appeal to the court.

The amount of the verdict, considering the severe character of the injury, seems to show that it was not the result of passion or prejudice on the part of the jury, and counsel for plaintiff in error in their reply brief are candid enough to say if they were really liable the verdict should have been greater, but argue that because they deny all liability any verdict is -an evidence of improper sympathy.

It is also urged that the court erred in practically giving a- . double charge against the defendant. The record shows that alii of the eight special charges requested by defendant were given" by the court without objection and the same ground was again covered by the court in its general charges, so if there could be any complaint against the court in the matter of a so-called double charge it should hardly come from the defendant below-

Other errors were pointed out, but a careful consideration', of the record and the able arguments of counsel lead us to the-conclusion that there is no error in the record sufficient to» warrant a reversal, and the judgment below is affirmed.

Judgment affirmed.