text:
    ERROR. IN SUSTAINING OBJECTION TO HYPOTHETICAL QUESTION.
    Circuit Court of Cuyahoga County.
    Agnes L. Hixson v. James W. Rabe.
    Decided, April 15, 1907.

      Evidence—Witness—Recalling Out of Order—Abuse of Discretion—Hypothetical Question—Opinion Evidence.

    1. It is an abuse of discretion to refuse to permit a witness to be recalled for the purpose of re-examination on matters she has already testified to, where her original answers are ambiguous and it is desired to make them definite, if possible, so as to lay the ground for putting an hypothetical question to an expert witness.
    2. Upon the putting of a proper hypothetical question to a medical expert witness the court, before passing upon objections to the question said to the witness: “Could you answer that question, if under the law it were competent?” to which the witness replied: “It would be a very hard question to answer.” Whereupon counsel asked: “Have you an opinion—could you give an opinion, that is the question,” to which the witness replied: “I could possibly give my own personal opinion,” whereupon the court sustained the objection to the hypothetical question, not only as to this witness, but as to other expert witnesses, to whom it was afterwards put. Held: error.

      A. J. Wilhelm and Gran l c(^Sieber, for plaintiff in error.

      Allen, Waters, Young c£' Andress, contra.

    Marvin, J.; Henry, J., concurs; Winci-i, J., dissents.
   The parties here are as they were in the court'below. Suit was brought by the plaintiff against the defendant, charging that on the 14th of January, 1905, at about 7 :30 p. m. she fell upon the ice on a sidewalk in the city of Akron, and that her weight came upon her hand in such wise as to cause a fracture near the wrist, which is called a “colles fracture”; that she employed the defendant, who is a physician, to attend her on account of this injury to her arm; that he did attend her and undertook the management and care of her injury; that he did it carelessly and unskillfully, setting out -the details in which she says there was such want of care and skill as should have been exercised, and that as a result, her wrist_and hand became permanently disabled, and she prays for damages.

The defendant admits that she received the injury, and that he undertook her treatment, but denies that there was any want of skill or proper care, or that she has suffered injury by reason of any failure on his part to perform his whole duty.

The fact is that the doctor first adjusted the broken -parts of bone in such wise as be thought and, we think, from the evidence, was proper. He then placed bandages and wooden splints upon the arm in such wise, as from the evidence, we think, was proper. The accident happened on Saturday evening. The Tuesday following the doctor put what is called a plaster of Paris cast upon the arm, extending from a point below the elbow to some place upon the hand. The plaintiff herself testifies that it came to ‘1 the first of the fingers. ’ ’ And this east was left upon the arm for five and a half weeks. The doctor did not call upon her or do anything further for her arm, though she called him twice by telephone, until five and a half weeks after the cast was put on, when he removed it, and her fingers are stiffened and the hand stiffened; the claim on the part of the plaintiff being that this resulted from improper treatment, -'and (especially from the improper way'in which the hand was left in this cast.

Medical evidence was introduced tending to show that a proper treatment of a case of this kind would be to have a “passive motion” of the fingers begun very early after the injury, and continued to some extent all the way through. By “passive motion,” it is explained is meant that either the patient with the other hand should move the fingers back and forth, or that some other person should so move them. The plaintiff testified that by reason of the way the cast was put upon her hand it was impossible to have this passive motion.

Counsel for the plaintiff having examined the plaintiff herself and other witnesses, including two medical men, a motion was made to direct a verdict for the defendant. Thereupon, the plaintiff asked leave to re-open the case and to ask further questions of the medical witnesses, or at any rate of one of the medical witnesses, and he then called Ur. Cauffield, who had already been examined and the record shows the following took place:

“Q. Doctor, assuming that the plaintiff’s hand was placed in a plaster east extending from the elbow to the tips of the fingers.
‘ ‘ Tee Court : I beg your pardon, Senator, I don’t think there is any such evidence. We might as well settle that right here. It is ‘ down to the first of the fingers, ’ is the language of and the testimony of the plaintiff. The court just looked it up, it is fresh in his mind—‘Down to the first of the fingers’ is the language of the witness.
“Mr. Sieber: Then we will say to the—
‘ ‘ The Court : The court just looked it up to be certain about it.
“Mr. Sieber: If Your Honor please, then I -will have to ask for the privilege of putting on the plaintiff to ask her one question.
“Mr. Waters (who represented the defendant) : I object to that. I do not believe in patching up testimony in this way. The plaintiff spoke and deliberately spoke the truth.
‘ ‘ The Court : In view of the answer given I think I will let the answer stand as it is.
“Mr. Sieber: If Your Honor please, I think that the record is not right in that respect. I do not want to say anything in front of the jury here/
“The Court: The jury may be excused a moment.
“Thereupon the jury retired.
“The Court: I think I will not permit the recalling of the plaintiff on that matter.
“Mr. Sieber: I except, and I expect that the witness would testify, if it please Your Honor, that the east was placed upon the arm and hand extending from pretty near the elbow to the ends of the fingers and thumb, of course, including the thumb. If Your Honor will not permit that, there is no use in putting the question, and in my judgment, Your Honor, it would result in-a miscarriage of justice. I do not think Your Honor wishes that.
‘ ‘ The Court : No, I think it would be a great prejudice—an unwarranted prejudice, and this court could not justify it in view of the plaintiff’s own testimony, and from the very fact that counsel did not press the matter farther, except as to the hand being in, would tend to show at any rate that counsel understood it exactly as the court.
“Mr. Sieber: Your Honor please. * * *
“The Court: I have ruled on that and we will not spend any more time on it. ’ ’

Other proceedings show the court took the position indicated in what has already been quoted.

In this we think the court erred. The discretion of the court as to the admission of evidence, after the plaintiff had testified, having been exercised to the extent of allowing the medical witness to be recalled, in view of what it was stated it was expected the plaintiff would testify to, the court should have permitted the plaintiff to be. recalled. We think there was sufficient indefiniteness in the answer given by the witness, that the cast came down to “the first of the fingers,” and her statement that because of the way in which the cast was on her hand there could not be the passive motion of the fingers, to justify the court in allowing this witness to be recalled and the court should have permitted this witness to be recalled.

Counsel for plaintiff then inquired of Dr. Cauffield as follows:

“Q. Doctor, suppose that this arm and hand were dressed in such a manner that passive motion was not possible, by being placed in a plaster of Paris cast, and left there for the period of five and a half weeks, without attention, what do you say, in your judgment as to whether or not, leaving the hand in that condition for the period of five and .a half weeks, contributed to the stiffness that you now find in the plaintiff’s hand?”

This was objected to.

‘ ‘ The Court : Before I pass it let me ask the doctor this question :
“Q. Could you answer that question, if under the law it were competent? A. It would be a very hard question to answer.
“Mr. Sieber: Have you an opinion—could you give an opinion, that is the question? A. I could possibly give my own personal opinion.
‘ ‘ The Court : I will sustain, the objection to the form of the question.”

The counsel for the plaintiff here stated, that if permitted he expected the witness 'would ansiver, that leaving the splints on iii that condition for that length of time would contribute to the stiffness that he now finds in the plaintiff’s hand and fingers.

Another question of like import followed, and objection to it was sustained, and exception taken.

In this we think there was error.

Following these, other questions of like import were asked' of Dr. Cauffield, and Dr. Fouser was also called, and similar questions asked of him, objection to which were sustained.

In this we think the court erred, and the court erred in directing the jury to return a verdict for the defendant.

Several of the hypothetical questions put to both Dr. Cauffield and Dr. Fouser, objection to which were sustained, were within the description of the treatment of the case as described by the plaintiff, and answers should have been permitted thereto, and the plaintiff herself should have been given an opportunity to say, so that there could have been no misunderstanding about it, to what point on her hand the plaster cast reached, and for this error the judgment is reversed and the case remanded to the court of common pleas for new trial.

The presiding judge does not concur in the conclusion reached in this case.


source: Caselaw Access Project

license: Public Domain

text:
    PROHIBITION OF SALE OF INTOXICATING LIQUORS IN A RESIDENCE DISTRICT.
    Circuit Court of Lorain County.
    In the Matter of the Prohibition of the Sale of Intoxicating Liquors in a Certain Residence District in the City of Lorain, Being Part of Wards 1 and 2.
    Decided, May 1, 1907.

      Residence District Local Option—Boundary of District—Determining Qualifications of Petitioners—Cross or Intersecting Street.

      1. The east rail of an electric railway company is a sufficiently recog- . nized line to serve as' a boundary of a proposed dry district under the residence district local option law.
    2. In determining whether a petition for a dry district is signed by the requisite number of qualified electors within it, the judge wnth whom the petition is filed need not himself verify it from the poll-books and registration lists, but may take the testimony of another who has done so.
    3. A street which enters but does not cross another street, is not “a cross or intersecting street,” within the intendment of the residence district local option laws.

      J. F. Straniclc, for plaintiff.

      G. A. Reseh, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   On the '23d of February, 1907, a petition was filed with the Hon. C. G. Washburn, a judge of the Court of Common Pleas of Lorain County, Ohio, which was signed by a large number of persons representing themselves as qualified electors, within a certain described portion of the city of Lorain and said county. The object of the petition was to prohibit the sale of intoxicating liquors as a beverage in a described district in said city. To this petition certain parties filed an answer, denying that the' petition was signed by a majority of the voters of the district described in the petition, averring that the district described in the petition was not bounded by well recognized lines or boundaries, and tliat the petition describes a district which contains the property abutting on. a section of West Erie avenue, lying between Broadway and Joubert street, which are two consecutive cross and intersecting streets, sixty-five per cent, of the frontage of which section of West Erie avenue is in the central or main business part of the city of Lorain.

This answer is signed by two parties, one of whom verifies it by affidavit.

• The purpose of the petitioners was to obtain the prohibition of the sale of liquors in the territory described, under the provisions of an act entitled an act “to further provide against the evils resulting from the traffic in intoxicating liquors, by providing for local option in residence districts of municipal corporations.” 98 Ohio Laws, p. 68.

Under this petition Judge Washburn proceeded to hear and determine the various questions necessary to be determined, before it could be said that the territory described should be such as is ordinarily denominated “dry.”

The burden put upon the petitioners in this hearing was to show, first, that the petition described a district in the city and county of Lorain, which was bounded by street, corporation, or other well recognized lines or boundaries'.

One of the boundaries of the district described .in the petition is the east rail of the Cleveland & Southwestern Electric Railway Company. It is urged that this is not such a boundary as is required by the statute. Of course it is not a street line, nor a corporation line, but it is a line which, in a sense, may be said to be akin to a street line; it is a line easily discernible, easily ascertained, and although this rail may be changed, still the line upon which it now is, is certainly easily ascertained, and it would seem to be not difficult- to ascertain substantially where that line was, even though the rails should hereafter be laid along some other line. There was no error in holding as Judge Washburn did, that this was a sufficiently definite boundary line.

Second. The further burden was put upon the petitioners of showing that their petition was signed by a majority of the qualified electors, residing within the described district. The district described in the petition does not include any one full elective precinct of the city, making it manifest that it is a matter of some difficulty to determine whether a majority of the qualified electors within the district signed the petition.

R. J. Cowley was called as a witness on behalf of the petitioners, and it appears from his testimony that he had carefully examined the poll books and the registration lists of the several precincts, some part of each of which was within the district described in the petition. That he ascertained from these books the place of residence of the several signers to this petition, and that he ascertained by the same means the other voters within this residence district, and tlien by mathematical calculation it was shown that the signers constituted a majority of the qualified electors, as provided for in the statute.

It is urged that the clerk of the board of elections should have been called; that this would have been the better evidence.' We do not understand that this would have been the better evidence, in the sense of that term as used in the law. It might have been stronger evidence, but it would have been of the same nature as that given by Mr. Cowley. It can not be supposed that it was contemplated by the Legislature that the judge before whom such a petition as this could be heard, would be required to count the names on the poll books and registration lists. lie might • well call upon some other person to do this, or the petitioners might well call upon some other person to do this. We think the testimony of Mr. Cowley was admissible, and Erom that testimony the judge ivas justified in finding that a majority of the qualified electors within the residence district signed the petition.

Third. The further burden was put upon the plaintiffs by Section 7 of the act referred to, to show that the described district did not contain property or premises- abutting on a séetion of a street lying between two consecutive, cross, or intersecting streets, from street to street, whereon sixty-five per cent, of the foot frontage of such abutting property on each side of such street was occupied for. and devoted to ■ manufacturing, mercantile or other business purposes.

It is urged that this burden was not sustained by the petitioners, because included within the district is a section of West Erie avenue, bounded on the east by Broadway, and on the west (the defendants claim) by Joubert street, and that more than sixty-five per cent, of'the abutting property on each side of this section of West Erie avenue is occupied for business purposes.

The situation is this: Broadway is a north and south street. West Erie avenue is an east and west street. These two streets cross each other. West of Broadway there is a street extending from the south line of West Erie avenue southerly; this is Joubert street. Joubert street does not cross West Erie avenue, nor does any street corresponding with it extend north from West Erie avenue. On the south side of that part of West Erie avenue, between the east line of Joxibert street and the west line of Broadway, it is conceded that more than sixty-five per cent, of the property is business property and it is claimed by those protesting against the petition that more than sixty-five per cent, of the property abutting on the north side of West Erie avenue, between the west line of Broadway, and a point opposite the east line of Joubert street, is occupied for business purposes.

On the part of the petitioners it is said that it is a matter of indifference whether sixty-five per cent, more or less, of this part of the north side of West Erie avenue is occupied for business purposes. The language of the statute is: “Lying between two consecutive, cross or intersecting streets.”

It is clear that Joubert street is not a cross street to West Erie avenue, lying consecutive to Broadway, but it is urged that it is an intersecting street, and that is next in order going to the west from Broadway.

The word “intersect” is defined in the Century Dictionary, as follows:

“To cut or divide into parts, lying or passing across; as, the the ecliptic intersects the equator. To cut apart, separate by intervening. 2. For example, ‘Lands intersected by a narrow frith abhor each other.’ ”

Webster defines the word “intersect” in these words:

“To cut into or between; to cut or cross mutually; to divide into parts as the ecliptic intersects the equator, 2, To cut into one another, to cut across, as the points where two lines intersect.”

Our attention-is called in the brief of counsel for the plaintiff to the case of Calhoun Gold Mine Co. v. Ajax Gold Mine Co., 59 Pacific, 607, 613. As this is reported in four different'sets of reports, and counsel cites one of the four, it looks like rather a formidable array of authorities. However, it is but one cas&, and in that case the court seems to hold that leads of minerals which come together at an angle, intersect. But this does not, as we think, bear upon the construction to be given to the word “intersecting,” as used in this statute. The property, sixty-five per cent, of which has to be used for business purposes, must be between consecutive streets. We take it that on the north side of West Erie avenue there can be no property lying between Broadway and Joubert street, unless such property lies between the west line of Broadway and the east line of Joubert street. It would be, absurd to say that property lies between two streets, and yet does not lie between some boundary line of each of said two streets, and it is certain that there is no property on the north side of West Erie avenue that lies between any boundary line of Joubert street and a boundary line of Broadway.

We reach the conclusion, therefore, that there was no error in the finding of the judge before whom this matter was tried, and that finding is affirmed.


text:
    LINE FENCE LAW INVALID.
    Circuit Court of Medina County.
    John P. Beach v. Bert Roth et al, as Trustees of Sharon Township, and Simon Dressler.

    Decided, May, 1907.

      Constitutional Law—Fence Lato Unconstitutional.

    Section 4243, Revised Statutes, providing for the building of line fences and the assessment of the' cost thereof upon adjoining proprietors, is unconstitutional.
    Marvin, J.; Winch, J., and Henry, J., concur.

       Affirmed without opinion, Roth et al v. Beach, 80 Ohio State, 746.

   The only question involved in this ease is whether Section 4243 of the Revised Statutes is obnoxious to the Constitution. The section reads:

“If either party fail to build the portion of fence assigned to him, the trustees shall, upon the application of the aggrieved party, sell the contract to the lowest responsible bidder, to furnish the labor and material and build such fence according to the specifications' to be proposed by the trustees, after advertising the same for a period of ten days by setting up posters in three public places in the township. As soon as the work shall be completed in conformity with the sale, and to the satisfaction of the trustees, they shall immediately certify the costs to the township clerk and if not paid within the thirty days, the township clerk shall certify the same to the auditor of the county, the amount such fence sold for, adding the proportionate amount of cost and expenses of such sale, together with a correct description of each piece of land upon which same is assessed, and the auditor shall place the same upon the tax duplicate to be collected as other taxes are collected, and the trustees shall at the same time certify the amount due each trustee and clerk for their services rendered in such proceedings, and the auditor may anticipate the collections of same and draw orders for the payment of such amount out of the county treasury. ’ ’

This section read in connection with Section 4242, and other sections of Title 5, Chapter 3 of the statutes, authorizing the trustees of townships to determine what line fences shall be built-outside of the municipal corporations, and in case the owners of the land bounded by the line where such fence is to be built, fail to build the portion of fence assigned to such land owner, the trustees may cause the fence tó be built, and the land owner may be compelled to pay for the same, as taxes upon his land.

It is urged on behalf of the plaintiff that this is in contravention of Section 19 of the Bill of Rights (the first article of the Constitution) ; that section reads in part as follows: “Private property shall ever be held inviolate, but subservient to the public welfare.”

It is said that under this section, the private property of one land owner may be subjected to appropriation to the extent necessary to construct a fence for the exclusive private use and benefit of an adjoining land owner, and not only that, but that the property of the owner may be taken to pay the tax assessed for the building of a fence, when such fence is- exclusively for the benefit of a single individual and adjoining land owner.

This claim seems to us to be sound. A farm may be owned by A, an adjoining farm is owned by B, and A is so situated that he has no occasion for a line fence for the purpose of controlling his own domestic animals, or for any other purpose, excepting it be to protect his lands from the domestic animals of B. The policy of the law of Ohio is that each owner of domestic animals must himself see that they are kept within proper boundaries. Why then, should A in the case supposed, be required to yield any part of his land, or have his land subject to a tax, simply for the benefit of B? It seems to us that it is a violation of the constitutional provision hereinbefore quoted, that “private property shall ever be held inviolate, but subservient to the public welfare.” Certainly no public welfare is to be subserved by the construction of a line fence in the case supposed.

In Shaver v. Starrett, 4 Ohio St., 498, it is said by Judge Thurman:

“The constitutionality of the statutory provisions for the establishment of township roads, has lately been questioned, upon the ground that the land appropriated for such roads is not taken for a public, use. If this were so, the invalidity of the statute would be manifest, since the Constitution provides (Article I, Section 19), that ‘private property shall ever be held inviolate,’ and the only exception to this rule is, that it shall be ‘subservient to the public welfare.’ It follows that it can not be taken for a mere private use; nor could it, I apprehend, were there no express constitutional provision upon the subject; and this for the plain reason, to say nothing more, that no such power has been delegated to the assembly.”

In that ease the court held the statute, which provided for the taking of private property for a township road, to be constitutional, but upon the ground that such road was for a public use.

In Beeves v. Treasurer of Wood County et al. 8th Ohio St., 333, it is held that an act authorizing the trustees of townships to establish water-courses, etc., was in contravention of the constitutional provision referred to.

The statute under consideration authorized the construction of ditches, the language being:

“That the township trustees shall have power, on the application of any party, to enter upon any land in their township to view any water-course or proposed ditch for the purpose of draining any land held by more than one person, and to cause said ditch or water-course to be located and set apart to each person interested in such ditch or water-course, such portion of the same to be by him opened,’ as shall be deemed by them right and just, according to the benefit to be derived by such person from the opening of said ditch or water-course; and also to assess against him such portion of the expenses and damage hereafter provided for, as according to right and justice he ought to pay. ’ ’

And in the opinion at page 34-7', Judge Brinkerhoff uses the following language:

‘ ‘ If the trustees had been authorized to locate and provide for the opening of a ditch only in case they found the same to be demanded by, or conducive to the public health, convenience, or welfare, why then their action, under legitimate authority, would be but an ordinary and legitimate exercise of the right of eminent domain. But this statute prescribes no such condition, no such rules of official duty or limit' to official discretion; and a ditch may be located and opened upon the lands of individual property owners solely for purposes of private interest irrespective of the public welfare, without infringing any provision of this act, either express or implied.”
“Is this an infringement upon the inviolatability of private property, taking of private property for private use?”

)

The land occupied by the ditch and its banks is not, it is true, wholly appropriated. The owner may still use the ditch itself for purposes of irrigation, for watering stock, or perhaps make it serve the purposes of a fence. He may grow timber and shrubbery on its1 banks. But his dominion over it, his power of choice as to the uses to which he will devote it, are materially limited; in short other parties acquire a permanent easement in it. An easement is property; and to the extent of such easement it is clear to us, that private property is taken, within the meaning and spirit of the constitutional prohibition.”

In McQuillen v. Hatton, 42 Ohio St., 202, Judge Follett uses this language in the opinion:

“The use that will justify the taking of private property by the power of eminent domain, is the use by or for the government, the general public or some portion of it; and not the use by or for particular individuals, or for the benefit of certain estates. The use may be limited to the inhabitants of a small locality, but the benefit must be in common, and not to a very few persons or estates.
“The prosperity of each individual conduces, in a certain sense, to the public welfare,' but this fact is not a sufficient reason for taking other private property to increase the prosperity of individual men.
“The draining of marshes and ponds may be for the promotion of the public health and so become a public object but the-draining of farms to render them more productive, is not such an object.”

See also Railroad v. Keith et al, 67 Ohio State, at page 279, and following.

In Zigler v. Menges, 16 American State Reports, 357, there is a very full discussion as to the distinction between the public use for which property may be taken, and the private use for which'it may not be taken, and in the notes to this case, as reported in the volume referred to, numerous authorities are quoted, and among other things this is said:

“It is not necessary, in order that a use may be regarded as public, that it should be for the use and benefit of the whole community, or any large portion of it. It may be for the inhabitants of a small or' restricted locality; but the use and benefit must be in common, not to particular individuals or states.”

On the part of the defendants the case of Tomlinson v. Bainaka et al, 70th Northwestern Reporter, 155, is cited.

The act construed in that case was attacked on the ground that it was unconstitutional; the section providing that “private property shall ever be held inviolate,” was not construed, and whatever the holding in that case (which was an Indiana case), we fell confident that we are following the decisions of our own Supreme Court in holding as we do that the act under consideration violates Section 19, Article I, of the Constitution of Ohio.

It follows, therefore, that the plaintiff is entitled to the injunction prayed for in the case, and the same is allowed. '


text:
    VITUPERATIVE LANGUAGE NOT BASIS OF ACTION FOR. SLANDER.
    Circuit Court of Medina County.
    Benjamin Lohr v. Lyman C. Buffington.
    Decided, May, 1907.

      Slander—Special Damages to One’s Business—Not Slanderous per se.

    1. To malee words actionable because of their effect upon one’s business or office, they must be said with reference to something connected with such business or office.
    2. The words, “He was a son of a hitch; he had his farm given to him and then he tried to cheat his brqthers out of everything they had,” are not slanderous per se.

    Marvin, J.; Winch, J., and Henry, J., concur.
   The parties here are as they were in the court below. Lohr sued Buffington for slander, alleging that Buffington said to him, in the presence of divers good people, the following words: “You put them poles back in again; if you say you had a right to you are a God damn liar. You had your farm given to you, and then you tried to cheat your brothers out of everything they have.”

The petition also charges that the defendant said to and in the presence of divers good people, speaking of the plaintiff, the following words: ■ “He was a son of a bitch;,he had his farm given to him and then he tried to cheat his brothers out of every-think they had. ’ ’

The plaintiff says that he was, at the time these words were spoken, ah officer, to-wit, a director of the Medina County Telephone Company, and that by reason of these words, he suffered in his official position.

To this petition a general demurrer was filed and sustained by the court below, and the only question here is, as to whether such demurrer should have been sustained.

We do not understand that the words spoken are such as could have affected in any wise the plaintiff in his position as such director of the telephone company. It is not alleged that it affected the business of the telephone company or that it interfered in any wise with .his work as such director. Nothing is said in the words about his action as an officer of this company, and to make the words actionable because of their effect upon one’s business or office, they must be said with reference to something connected with such business or office.

In Newell on Slander, Chapter VIII, paragraph 2, it is said:

“ It by no means follows that all words to the disparagement of an officer, professional man or trader 'will for that reason, without proof of special damage, be actionable in themselves. Words to be actionable on this ground must touch the plaintiff in his office, profession or trade. They must be shown to have been spoken of the party in relation thereto, and to be such as would prejudice him therein.
“It is true that words.may be of such a character imputing dishonesty and fraud as necessarily would injure one in any position of trust or confidence, as in Section 37 of the chapter referred to in Howell on Slander, it is said:
“ ‘But when they convey only a general imputation upon his character, equally injurious to any one of whom they might be spoken, théy are not actionable unless such application be made. ’ ’

This is a quotation from the opinion .of Andrews, Judge, in the case of Sanderson v. Caldwell, 45 New York, 398.

In Goldsmith v. Levy, 8th Ohio Dec. (Reprint), 146, it is said:

“Mere vituperative language of general abuse of a professional man is not actionable, unless it has reference to his conduct in his profession. ”

We think it clear that unless the words charged in this petition as having been spoken of the plaintiff are actionable per se, the demurrer was properly sustained.

We come then to consider whether the words are actionable per se.

In Hollingsworth v. Shaw, 19 Ohio St., 43-2, it is said:

“Words to be actionable, must either have produced a temporal loss to the plaintiff in special damage sustained or they must convey a charge of some act criminal in itself, and indictable as such, and subjecting the.party to an infamous, more especially a corporal punishment; or some indictable offense involving moral turpitude.”

In Brown v. Myers, 40 Ohio St., 99, it is said in the syllabus:

“An action of slander can not be maintained for words which impute a crime, where, from all that was said at the time the words were spoken, it appears that the words had relation to a transaction that was not criminal, and that they must have been so understood by the hearers. ’ ’

In Hollingsworth v. Shaw, 19 Ohio St., at 431, it is said in the syllabus:

“An action of slander can not be maintained for calling the plaintiff a deserter, without averment and proof of special damage.”

And in the opinion in that' ease Judge Scott uses this language :

‘ ‘ These authorities and the general current of decisions, warrant us in saying that to render words actionable per se, on the ground that they impute criminality to the plaintiffs, they must first, be such as charge him with an indictable offense; and, high degree of moral turpitude or subject the offender to infamous punishment.” '

From these authorities, and the several cases cited, to which attention has been called, we come to the conclusion that the words charged ih this petition are not actionable per se and having already found that they are not actionable by reason of any special damage alleged to have been sustained by the plaintiff, the demurrer was properly sustained, and the judgment is affirmed.


text:
    NEGLIGENCE IN DRIVING ONTO A RAILROAD CROSSING.
    Circuit Court of Summit County.
    The Baltimore & Ohio Railroad Company v. Ernest S. Dickinson.

    Decided, 1906.

      Railroad Grossing—ContriMitory Negligence—Evidence that Railroad is Operating Trains.

    1. It is sufficient evidence that one railroad company is operating trains over the line of another railroad company, as lessee, or otherwise, that it issued a bill of lading for freight consigned to it at a station on the line, published and issued a time table of trains thereon, representing them to be its own trains, and hired and paid a doctor to treat a person injured thereon.
    2. One who drives into a deep cut leading to a railroad crossing with a lumber wagon which makes so much noise that he can not hear an approaching train, and who knows that he can not see one while in the cut, is guilty of contributory negligence if he does not slow down his'horses as he emerges from the cut upon the track, to see if a train is approaching.

      Allen, Waters ■& Andress, for plaintiff.

      Rial M. Smith, contra.

      Marvin, J.; Winch, J., and Henry, J., concur.

      Affirmed without opinion, Dickinson v. B. & O. R. R. Co., 77-Ohio State, 639.

   Dickinson brought a suit against the Baltimore & Ohio Railroad Company and the Cleveland Terminal &. Valley Railboad Company. He sets out that a line of railroad extending south from the city of Cleveland and through the township of Brecksville, in Cuyahoga county, is owned by the Cleveland Terminal & Valley Railroad Company; that that road is leased to and operated by the Baltimore & Ohio Railroad Company; that on the 24th day of April, 1903, the plaintiff below, Dickinson, was driving along a public highway in the township of Breeksville, which crosses the line of railroad already spoken of at what is known as Vaughan’s Crossing, that by reason of the negligent manner in which a train was operated he was struck and injured while making that crossing over the road. He complains of three aets of negligence on the part of the railroad company: First, that it failed to keep gates or station a flagman or watchman at the crossing, which he says was a very dangerous’ crossing. Second, that the railroad company was negligent in that it ran its train at the rate of more than forty miles an hour at this place on its line, and that to run a train at that rate of speed at such a crossing was negligence. Third, the company was negligent in that it failed to sound the whistle and ring the bell in pursuance of the statute which requires the whistle to be sounded and the bell to be rung. Upon the trial of the case, however, the charges' of negligence for failing to keep the gates and a flagman was dropped, and the charge of negligence for running the train at a high rate of speed was taken out of the case, so that there remained the charge of negligence that the company failed to give the signal which it should have given. The result of the trial^in the. court of common pleas was a verdict for the plaintiff below, Dickinson. A judgment was entered upon that verdict, and a motion to set aside the verdict and grant a new trial was overruled.

The Baltimore & Ohio Railroad Co. denied that it was the lessee of this line of road and that it was operating the road. Each of the defendants denied that there was any negligence on its part, and charged that there was negligence on the part of the plaintiff below contributing to or causing the injury which he sustained. The result, as I have said, was a verdict for the plaintiff below, and that verdict was against the Baltimore & Ohio Railroad Co. only. The jury returned a verdict for the Cleveland Terminal & Yalley Railroad Company, so that it is the Baltimore & Ohio Railroad Co. only that comes here claiming error to its prejudice in the trial in the court below.

It is urged on the part of the plaintiff in error that there was no evidence introduced in the trial tending to show that the Baltimore & Ohio Railroad Company was the lessee of the line of road and operated it. In this we think the plaintiff in error is wrong. There was evidence that showed that and from which the jury might find that the Baltimore & Ohio Railroad Company was operating this railroad under some contract with'the Cleveland Terminal & Yalley Railroad Company. There was the evidence contained in Exhibit K, at page 211, which is a bill of lading issued by the Baltimore & Ohio Railroad Company for freight consigned to it at Boston Mills, a station on the line of the Cleveland Terminal & Yalley Company.

At page 138 of the bill of exceptions there appears Exhibit J, which is a time table folder shown to have been issued by the Baltimore & Ohio Railroad Company, and that time table gives as one of the lines on which the times are specified in the exhibit, this line of the Cleveland Terminal & Yalley Company. . There is the testimony of Doctor Jacobs that he was the surgeon in the employ of the Baltimore & Ohio Railroad Company, and that he attended the.plaintiff below for the injuries which he sustained, and was paid for it by the Baltimore & Ohio Railroad Company. From this evidence the jury might well have found that the Baltimore & Ohio Railroad Company was the lessee or was operating this line of road.

It is further urged that no negligence was shown on the part of the Baltimore & Ohio Railroad Company, or any company operating the train which struck and injured the plaintiff below. It is said that there is nothing in it to show that whoever operated that train was' negligent. We think that that position is not well taken. The testimony of Mrs. Yaughan' w'ho was at the north end of her house near this crossing, tends to show that no whistle was blown until the engine had reached a point within a few hundred feet of the crossing, a point much nearer to the crossing than the statute requires the whistle to be blown, and much nearer to the crossing than a train, running at the speed at which that train was railing, should have blown it. Other witnesses testify to the 'same thing. The man who was in the corn field with his team, whose name at this moment is not recalled, testified tending to show that the Avhistle 'was not blown, until the crossing was nearly reached. It is true that is contradicted. The engineer says that he blew the whistle at the whistling post. The fireman says that the custom was to blow it there, and thinks it Avas bloAvn; he first says- it was blown, but upon cross examination he says: “We always blew it there. ” Really it is evident from his examination that he does not certainly remember that the whistle was blown. In this conflict of evidence the jury might Avell have found that the signals Avere not given as required and as they should have been given, so that we think the jury were not clearly wrong in finding that there Avas- negligence on the part of the railroad company.

But it is said that clearly- there was negligence on the part of the party injured, Dickinson, which should prevent a recovery, and on this question there is no principle of law involved in this ease that is not familiar to every lawyer. If Dickinson contributed by his negligence to this injury, or if his negligence alone caused his injury, then he was not entitled to recover. The situation as shown by his testimony is, that he was familiar with this crossing; that there was a cut in the highway leaving a bank on each side so high that when one was near to the railroad it was impossible to see a train on the track in either direction to the north or to the south for the line of railroad was north and south and the crossing was on an east and west road. At a point sixty or sixty-five feet back from the railroad it was possible to see along that track to the north for a little distance. Dickinson says he looked there, and if he had thought, he might have known he could look well there and not see a railroad train that was.not near to this crossing; it might be further away than his point of vision would reach along the track, or it might be nearer; the train might be coming at a point at which he could not see or else had already passed his point of vision. When he got nearer to the track, within forty feet, he knew, he says, when he looked he could not see along the track, south; he did not hear anything and he continued to drive on. He was familiar with this crossing, he knew that trains passed there frequently. He knew that by exercising his faculty of seeing he would, not be able to see a train, if it was coming, when he was forty, and from that on until he was perhaps twenty feet from the track, yet he did-not stop his team; he drove right on. He was driving with a lumber wagon which made so much noise that Mrs. Vaughan, who was at a distance in the neighborhood of one hundred feet from that wagon, heard it. He knew his wagon was making that noise, he knew trains were liable to come along there, he knew he could not see them if he looked and that, therefore, he must depend upon his sense of hearing for knowledge of the approach of a train, if one was coming. He seems to have relied upon his sense of hearing, of hearing the whistle, presuming that the railroad company would whistlé, and that he would hear that whistle, and that- the distance of the train from the crossing when the whistle was given would be such that he would certainly hear it.

Now, can any man who exercises proper caution in the care of himself and his family and his property say that it would do for one under such circumstances, knowing that he could not see a train if it was coming, and that his wagon was making so much noise that he would not hear, to drive on that way and then claim that he exercised ordinary prudence and care? It seems to us clear that the plaintiff below, by his negligence in not stopping his team, or at least holding his horses, to such gait that the rumbling of his wagon would cease, directly contributed to his injury. We do not think that his negligence was the sole cause, but it contributed with the negligence of the Baltimore & Ohio Railroad Company, or whatever company was running that train, to bring about the injuries and that being so, the motion which was made at the close of the evidence offered on the part of the plaintiff to take the case from the jury should have been sustained. It was not sustained, and there was error in that; and there was error in overruling the motion for a new trial-on the ground that the verdict was not sustained by sufficient evidence and was against the weight of the evidence. That being so, we feel it our duty not only to reverse this judgment, but to enter the judgment which the court below should have entered for the Baltimore & Ohio Railroad Company, and that will be done and a.n exception noted for the defendant in error.


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    ACTION FOR. RECOVERY OF BALANCE CLAIMED TO BE DUE ON AN INSURANCE POLICY.
    Circuit Court of Summit County.
    Laura E. Walker v. The Empire Life Insurance Company.
    Decided, April 21, 1905.

      Insurance—Settlement for Less than Face, of Policy—Tender of Amount Received—Action for Balance.

    A petition winch recites that, the plaintiff was entitled to receive the sum of $3,000 from an insurance company on a policy for that amount issued on the life of her father, but that by the fraud of the company she was induced to accept $2,000 in full for her claims under the policy, and asking judgment against the company for the balance of $1,000, does not present a case in tort, for damages arising from the fraud, but is on the contract of insurance and can not be maintained until the $2,000 paid by the insurance company has been returned or tendered to it.

      Tibiáis <& Franh, for plaintiff in error.

      Grant <& Sieber, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   This case comes here upon proceedings in error. Suit was brought in the court of common pleas by Laura E. AValker against the defendant, the Empire Life Insurance Company. To the petition the defendant filed an answer and to that answer the plaintiff replied.

The pleadings being in that situation, the insurance company filed a motion for judgment on the pleadings. The court sustained the motion, dismissing the plaintiff’s petition and entering judgment for defendant for its costs.

The petition sets forth that the defendant is a corporation, etc., doing a life insurance business; that on or about the 14th day of April, 1897, in consideration of the payment of monthly premiums the exact amount of which is unknown to this plaintiff, but is well known to the defendant, said defendant did then and there execute and deliver to this plaintiff its written policy of insurance whereby it, the defendant, did insure the life of Samuel N. Shaffer, plaintiff’s father, for the sum of three thousand dollars; and did then and there promise to pay this plaintiff said sum of $3,000 within three months after satisfactory proof of the death of said Samuel N. Shaffer was made out and furnished to the defendant upon its blank forms therefor provided. She says that she is unable to state the exact date and number of the policy for reasons which are set up later in the petition. She says that the contract of insurance had a provision written in it providing, in substance, that the representations, waivers and agreements contained in the ivritten application made by said Samuel N. Shaffer for said contract of insurance were a part of said policy, and that the said representations, waivers and agreements in said written application were warranted to be true by the insured, and were binding not only upon him-but upon his legal representatives, and every other person acquiring an interest in said policy, including this plaintiff to whom the same, by its terms, was payable; and all said statements, representations, waivers and agreements were to be regarded as material and to be full and true warranties, and to be the only statements and conditions upon which said policy was issued. She says that Samuel N. Shaffer died about the 13th of March, 1902; that proper proofs of his death were made to the insurance company; that a representative of the company came to see her, and represented to her that certain of the statements made by Shaffer in his application for the' insurance were not true. That it was not true, as represented in said application, that Shaffer had not within five years previous to his application therefor, been ill with rheumatism, pneumonia and grippe, and that he had not been treated by any physician for any such disease, but insisted to her that Shaffer had been ill from some of these diseases at least, and that a physician, Doctor Carter, the family physician, had treated him for grippe and pneumonia within five years previous to the date of the application, and that by the terms of his application for insurance the insured had represented and warranted that he had not been so sick,' etc.; and, therefore, that the company ivas not liable in any sum to the plaintiff She says that by reason of those representations made to her by Wilson she was induced to and did accept $2,000 in full payment of the amount coming to her under” the policy and delivered the policy over to the representative of the insurance company. But she says that these statements made to her by the representative of the company were not true; that a fraud was perpetrated upon her in that wise, and that she has been damaged and wronged in the sum of $1,000 by reason of these representations so made to her by the representative of the insurance company.

The insurance company admits the issuing of the policy, admits that Shaffer died and that proofs were made. Admits that one Willson, and not Williams, as alleged in the petition, came to Akron; that he met the plaintiff; that he offered to pay her $2,000 on said policy and no more, and that she then and there accepted the sum of $2,000 in full satisfaction of all claims made by her on account of said policy and duly surrendered the same to this defendant.

The company further says that the application upon which the said policy of insurance was issued, and which, by the terms of said policy, was made a part thereof, in answers to questions therein contained, that the said insured did say that he had not been ill and that he had not been treated by a physician, and the like, and they say that the representations that he made were not true,, and that they were thereby relieved from payment, but that they paid $2,000 in compromise of the claim,

Then by cross-petition they set out the payment of $2,000 taken and kept by the plaintiff, and they pray to have that restored to them.

To that the plaintiff replied, denying all the new matter set-out in that answer.

Then the defendant made this motion:

‘ ‘ The said defendant hereby dismisses, for the purposes of this motion, its cross-petition herein, and thereupon moves the court for judgment dismissing the plaintiff’s petition, and for its own costs in this behalf made, upon the pleadings on file herein, to-wit, the petition of the plaintiff, the answer of the defendant, and the reply of the plaintiff to this answer.”

Of course, the claim made on the part of the defendant is that there was a dispute between these parties, the plaintiff claiming that the defendant was indebted to her in the sum of $3,000; the defendant denying that it was indebted to her in any sum whatever; that a compromise of that dispute was made by payment to the plaintiff by the defendant the $2,000; and that this action must either be in effect a suit to set aside that contract of settlement so made, or a suit upon this policy of insurance. If it is made for the purpose of setting aside the contract so made, then that the. plaintiff, before she is entitled to any such relief, must tender back to the insurance company the money that it has paid and let them start out anew upon the dispute that there was between them, and that if she chooses to affirm and hold on that by holding on to the $2,000 she affirms the contract that was made; refuses to give anything back, but says: “ I want something more. ”

Counsel on both sides seem to recognize that the case of Manhattan Life Insurance Company v. Burke. 69 O. S., 294, at least has a bearing on the question here; and on the part of the defendant it is claimed that it settles the controversy and settles it against the plaintiff, and we think that view is correct. The first paragraph of the syllabus reads:

“Where at the time of a compromise of a claim founded on a contract of life insurance, a dispute exists between the parties as to the liability of the company in any sum whatever, it denying that anything is owing, and an amount less than the claim is paid to the claimant in settlement of the controversy, and he executes a full acquittance and release, and surrenders the policy, and an action at law on the policy can not be maintained, without a return or a tender of the amount received, and even though the party’s assent to the settlement was obtained by the fraudulent representations of the other party, and the amount received as the settlement is in the petition credited to a payment on the policy.”

The opinion in this- case was prepared by Judge Spear. Of course, it is conceded on the part of the plaintiff: here that if this is a suit on this policy, the ease of The Manhattan Life Insurance Company v. Burke must apply and must settle it against her. But she says: I have brought a suit for a fraud perpetrated upon me: that is to say, I have been damaged in the sum of a thousand dollars because of the misrepresentations made by Willson to me. But really is that the substance of it? Is there anything in the claim that this is not a straight suit upon this policy? The only reason in the world why the insurance company owes this plaintiff anything, if it does owe her anything, is that it entered into a contract by which it agreed to pay her three thoiisand dollars, and it failed to pay it. If it does not owe her because of that contract it does not owe at all. If it owes because of that contract, or if there is an open question as to whether it owes upon that contract, then it must not be permitted to the plaintiff to retain what she has received upon it and prosecute her action for more.

We think the case of The Manhattan Life Insurance Company v. Burke is directly in’ point, and that it disposes of this case in favor of the defendant, and that the judgment of the court of common pleas was right, and is affirmed.


text:
    INJURY TO PERSONS WALKING ON RAILWAY TRACK.
    Circuit Court of Summit County.
    The C., A. & C. Railroad Company v. Patrick Brown.
    Decided, April 21, 1905.

      Negligence—•Railroad Grew Punning Down Person on Track—Special ' Finding.

    In an .action for damages against- a railroad company for negligently running down and injuring a person walking on the track, where the case turned upon the question whether the crew in charge of the engine, after they discovered that the plaintiff was in danger of being struck by the engine used all reasonable efforts to prevent the accident to him, or not, and that question was submitted to the jury for a special finding thereon and the jury answered, “We can not tell,” the plaintiff is not entitled to a recovery.
    Marvin, J.; Winch, J., and. Henry, J., concur.
   The defendant in error was severely injured on the 21 st of September, 1901, by being' struck by an engine of the plaintiff in error at a point a short distance south of the city'of Akron. At the same time one Jenkins, who was with Brown, was killed; the two men were together. Suit was brought by the administrator of the estate of Jenkins; a recovery was had and judgment entered for the administrator. Upon proceedings in error prosecuted by the railroad company in this court that judgment was affirmed; to that judgment of affirmance the railroad company prosecuted error to the Supreme Court, where the judgments of both this court and the court of common pleas were reversed and judgment was entered for the plaintiff in error. In the mandate issued by the Supreme Court, this language is used:

“It is considered and adjudged that upon the special finding of the jury and the conceded facts appearing of record, the plaintiff in error was entitled to a judgment in the court of common pleas against the defendant in error.”

The special finding referred tp consists of the following interrogatory submitted to the jury, and its answer:

“After the crew in charge of the engine discovered that Jenkins was in danger of being struck by the engine, did they use all reasonable efforts to prevent the accident to Jenkins?
“Answer. Yes, but too late on account of not keeping a proper lookout.”

Substituting the name “Brown” for “Jenkins” the same interrogatory was submitted to the jury in the present case, and this was answered ifi these words: “We can not tell.”

It can hardly be claimed that this was more favorable to the plaintiff below than the answer in the Jenkins ease was to the plaintiff in that ease. Here the jury were unable to say that the engine crew did not use all.reasonable care to prevent the accident after they knew of Brown’s danger, and Brown was not entitled to recover on account of the negligence of the crew, after discovering his perilous condition without an affirmative finding that it failed to use such care.

In the Jenkins case they found such care was used but that the discovery came too late for want of a lookout.

As has been said, before a recovery could be had, on account of negligence of the crew, after discovery, the jury must have found that there was such negligence; this they said they could not do.

In the Jenkins case the jury said the discovery came too late, for want of proper lookout; this finding is not made in this case.

Whatever facts were conceded by the plaintiff in the Jenkins case which are not conceded by plaintiff here, we find none wdiich can aid the defendant in error.

It is urged that .the evidence here shows that the engine could be stopped in a very, short distance and that the testimony of. Iiillier found on page 98 as to what the engineer said after the accident, are items of evidence which were not in the Jenkins case. The testimony of Iiillier is that he heard the engineer say after the accident that he, the engineer, saw two men’ on the track; that he slackened up a little and then supposing that they left the track, he put on a little more steam. These two items bear only on the question of whether the crew on the engine did their duty after they knew of the peril of Brown, and the jury have said that they could not find that the crew failed to do its duty.

The ease' is so exactly parallel with the Jenkins case that we feel that’ the judgment can not be affirmed without wholly disregarding the judgment of the Supreme Court in that case, and this, of course, we are not at liberty to do.

We also feel that it would be idle to reverse the judgment and remand the case for further proceedings, but that our plain duty is to follow the example of the Supreme Court and reverse this judgment for error in overruling the motion for a new trialj and enter final judgment for the plaintiff: in error, •which will be the order.


text:
    PROSECUTION OF A DRUGGIST UNDER THE MUNICIPAL LOCAL OPTION LAW.
    Circuit Court of Cuyahoga County.
    Thad H. Rowland v. State of Ohio.

    Decided, April 30, 1908.

      Municipal Local Option Law—Constitutional Law—Prosecution of Druggist. .

    1. In the prosecution of a druggist for violating the Municipal Local Option law of 1902 (95 O. L„ 87), it is not sufficient to charge that he sold intoxicating liquor upon a written prescription and that the sale was not made by him. in good faith for medicinal purposes, without alleging that it was known to him that the liquor would be used for'other than the purpose the prescription called for, or . some other fact tending to show that it was not sold in good faith.
    2. In such a case, where the charge is that the druggist sold the liquor upon a prescription which had been used before, it must also be stated that he knew the prescription had been used before and liquor obtained upon it. '
    3. I-n such a case, where the druggist is charged with failure to cancel the prescription upon its first use, it must be stated that it was first used with him.
    4. The Municipal Local Option law of 1902 (95 O. L., 87) is constitutional.

      Marvin, J.; Winch, J., and Henry, J., concur.

       Affirmed without opinion, Rowland v. State, 80 Ohio State, 711.

   Rowland was prosecuted before tbe mayor of tbe village of Oberlin upon charges made in an affidavit, to which particular attention will be later given in this opinion. As a result of this prosecution he was found guilty and sentenced to pay a fine of $150.

Proceedings in error were prosecuted in the court of common pleas, resulting in an affirmance of the judgment of the conviction and sentence.

To this affirmance error is prosecuted in this court.

There .are'four charges in the affidavit; the first reads:

“First. That on or about the 6th day of August, A. D. 1907, in the village of Oberlin, Lorain county, Ohio,'Thad H. Rowland being then and there a regular druggist, did then and there unlawfully sell intoxicating liquors to onePaul Long upon a written prescription. That the sale of intoxicating liquor by the said Thad H. Rowland was not then and there made in good faith for medicinal purposes, and that the selling of intoxicating liquor as aforesaid by the said Thad H. Rowland was then and there prohibited and unlawful and contrary to an act passed April 3, 1902 (95 Ohio Laws, p. 87), known as the Municipal Local Option law, and against the peace and dignity of the state of Ohio.”

On the part of the plaintiff in error it is urged that no facts are here stated which constitute an offense under the laws of Ohio. The affidavit -sets out the holding of an election under the statute of 1902, in the village of Oberlin, resulting in favor of prohibiting the sale of liquor within the municipality and then the charge as hereinbefore quoted.

Section 4364-20c, Revised Statutes of Ohio, makes exceptions in favor of druggists in these .words:

“But nothing in this act shall be construed to prevent the selling of intoxicating liquors at retail by a regular druggist for exclusively known medicinal, pharmaceutical, scientific, mechanical or sacramental purposes; and when, sold upon written prescription issued, signed and dated in good faith by a reputable physician in active practice and the preserption used but once. ” ■

Hftw it can be claimed that anything is set out in this charge which is in violation of the statute, it is difficult to understand. The language is that liquor was sold upon a written prescription, but that the sale was not made in good faith for medicinal purposes. It is not sufficient to say that the sale was not made in good faith, without some allegation that it was known to the-seller that it would be used for other than the purpose the prescription called for, or some other fact tending to show that it was not sold in good faith. It is not sufficient to simply state the conclusion that it was not sold in good faith; so, as to this charge, we find that it does not set out facts that constitute an offense under the statute.

The third charge is in these words:

"That on or about the 8th day of August, A. D. 1907, in the village of Oberlin, Lorain county, Ohio, one Thad IT. Rowland, being then and there a regular druggist, did then and there sell intoxicating liquor to one Paul Long, upon a prescription which had been used theretofore, and intoxicating liquor se'cured theretofore by the means of said prescription.”

The charge here sought to be made is under the same statute. It will be noticed here that the charge is 'that the liquor was sold upon a prescription which had already been used.

■ The exception in favor of the druggist provides that the prescription shall be used but once, but there is nothing in the charge to indicate that Rowland had any knowledge that this prescription had ever been used, and intoxicating liquors obtained thereupon, so that everything in the charge may be true and Rowland be entirely innocent, for except he had knowledge that the prescription had already been used and liquor obtained upon it, surely it was not a crime in him to furnish liquor upon the prescription. The party using the prescription has a right to use it once. Except that the druggist has knowledge that the prescription has already been used, it would be a great hardship to say that he should be punished for furnishing liquor upon it, and such was not the intention of the Legislature.

The fourth charge is like the third, except that after averring that the liquor was sold upon -a prescription which had been used theretofore, the words follow: ‘' and was not- canceled by the said Thad H. Rowland when said prescription was first used.” It is provided by the act of February 23, 1906, under which this charge is made that a record shall be kept of the sales made, and that the prescription when used, shall be canceled, and a penalty is provided for failure to make sueh, cancellation. However, in the charge now under consideration for aught that appears, it was some other person than Thad H. Rowland who should have canceled the prescription when it was first used. The allegation simply is that the liqiior was furnished upon a prescription which had before that time been used and that it was not canceled by Thad IT. Rowland when it was used the first time. But it could be said of. a druggist who had never seen the prescription at all that it was not canceled by him just as well as to say that it was not canceled by Rowland. Rowland may never have seen the prescription at all before this and still all that is contained in the charge be true. We think that there is nothing in this charge showing a violation of the statutes of Ohio.

The second-charge, however, in the affidavit is in these words:

“•That on or about the 6th day of August, A. D. 1907, in the village of Oberlin, Lorain county, Ohio, in which village the sale of intoxicating liquor was then and there prohibited, one Thad H. Rowland, being then and there a retail druggist and pharmacist, did then and there sell intoxicating liquor upon prescription to one Paul Long; that the said Rowland did not then and there make any record in a book of said sale, as required by law.”

This we hold, to be a distinct violation of the statute of February 23d, 1906, which provides that whenever a pharmacist or druggist sells liquor under a prescription, a record shall be kept of the sale in a book provided for that purpose. Here the charge is distinctly made that the statute was violated. Indeed this is not seriously denied by the plaintiff in error but it is urged that the statute is unconstitutional in that it, in effect, by the exception in. favor of druggists and pharmacists, permits a license to be given to traffic in intoxicating liquors. Without entering into a discussion of this question, we feel that though it is not free from doubt we are by no means clear that the Constitution is infringed. We have, in a ease involving this question in Cuyahoga county, held the statute to be constitutional, and we understand that it has been so held in two of the other circuits of the state, and we have no information that it has ever been held otherwise. We adhere to our former holding, therefore, that the statute is not in violation of the Constitution.

The penalty imposed is, as has been stated, a fine of $150. This is not in excess of the fine allowed for the offense of failing to make record of the sale, as contained in the second charge. In the case of Bailey v. State of Ohio, 4th Ohio State, p. 444, the last clause of the syllabus reads:

“Where the defendant is found guilty on several distinct counts of the indictment, some of which are bad and some good, a judgment and sentence in general terms, on such a verdict, is not erroneous, proidded the sentence be proper, and warranted by the laws applicable to the good counts. ’ ’

The concluding part of the opinion in that case reads, at page 445: ■ - ;

“In the case before us, the judgment and sentence of the court would have been proper under either the third or the fifth count of the indictment, the sufficiency of either of which is unquestioned. Inasmuch, therefore, as the verdict was equivalent to a general verdict of guilty on the five first counts of the indictment, and the sentence was warranted by the law applicable to the offense charged in the good counts, the presumption of the law prevails that the court awarded judgment on the good counts.”

It follows since the facts upon which the conviction was had are not before us, that the judgment of affirmance in the court of common pleas must be affirmed.


text:
    PROCEDURE IN REPLEVIN CASES.
    Circuit Court of Lorain County.
    The J. D. Smith Foundry & Supply Co. v. The Lorain County Banking Company.
    Decided, April 29, 1908.

      Replevin—Trial by Court—Right of Property or Possession Must be Found Before Judgment for Defendant Can be Entered.

    In an action in replevin, where the issues are submitted to the court without the interevention of. a jury, it is error for the court to find for the defendant and assess his damages without first finding whether, at the beginning of the action the right of property, or the right of possession only, was in the defendant, and this finding must be carried into the judgment entry.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The record in this case, for our consideration, consists simply of the transcript from the court of common pleas. The original pleadings were not filed in this court, nor have we any bill of exceptions. A motion is made here by the plaintiff in error for leave to file the original pleadings. That motion is deniecH The statute provides, Section 6716, that:

“The plaintiff in error shall file with his petition either a transcript of the final record, or a transcript of the docket and journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of.”

Whether or not we might, in our discretion^ permit the filing of the original papers at this time, it is not necessary here to consider. We have before us a transcript of the docket and journal entries of the court of common pleas, and if from those we find that there was error in the proceedings of the court, the judgment must be reversed.

We do find that the action was in replevin. This we find from the entry of February 19, 1907, which reads, “Original papers from C. C. Lord’s docket to-wit, affidavit in replevin, writ of summons, replevin bond by plaintiff, and by defendant filed.” We find also from this entry that a bond was filed by the plaintiff in'replevin. We further find from this transcript, by the entry of October 1, 1907, that:

‘1 On the application of the defendant, Charles Cahoon, as constable, and the Lorain County Banking Company, that the said the Lorain County Banking Company might be substituted as the defendant in such action and it appearing to the court that the said the Lorain County Banking Company is the party in whose favor the attachment issued in the lower court, it is therefore ordered, adjudged and decreed that the defendant, the Lorain Banking Company, be substituted as a party and in the place of the said constable, and that the defendant be allowed to file an answer herein instanter.” -

We find here that at the trial a jury was waived by all parties, and that the cause came on to be heard before the court upon the petition of the plaintiff and the answer of Charles A. Cahoon, constable, and the Lorain County Banking Company and upon the evidence presented by plaintiff herein. At the close of plaintiff’s evidence, and after said plaintiff had rested, the said defendants moved the court for judgment for the defendants; thereupon the court, after argument by counsel, found the plaintiff had failed in its evidence to sustain the material allegations of its petition, and thereupon, upon the application of the defendants found that the damages sustained by the said defendants were in the amount of $350.

"Wherefore it is ordered, adjudged and decreed that the defendant, Charles A. Cahoon, recover of the plaintiff the said damages aforesaid in the sum of $350, for which judgment is hereby entered together with the costs of the suit.”

There are matters shown on this transcript which seem to be, in some degree at least, original. The banking company was substituted as a defendant in the action for Cahoon, who was sued originally as a constable. Cahoon afterwards was permitted to file an answer, and the transcript shows that such answer was a general denial. What the answer of the Lorain County Banking Co. was we can not know, because the original files are not before us. The judgment is in favor of Cahoon, but not in terms as constable, and that judgment was in his favor, after another party had been substituted in his stead as a defendant. However, the difficulty in the case is that the issues having been submitted to the court without the intervention of a jury, the court proceeded to render a judgment for the defendant, without having first found whether it was the right of property or the right of possession which was in the defendant in whose favor the judgment was rendered.

Section 5826, Revised Statutes of Ohio, provides:

“When the property is delivered to the plaintiff or remains in the hands of the sheriff, as provided in section fifty-eight hundred and twenty, if the jury, upon issue joined, find for the defendant, they shall also find whether the defendant had the right of property, or the right of possession only at the commencement of the suit; and if they find either in his favor, they shall assess to him such damages as they think right and proper,. for which, with costs of suit, the court shall render judgment for the defendant.”

The purpose of this section is manifest, that in case the right of property is found in the defendant, and it has been taken in the proceedings in replevin by the plaintiff, the defendant will be entitled, as his damages, to the value of the property. If the right of possession only is in the. defendant, it may be that his damages will be much less than the value of the property. For he may have the right of possession as a pledgee, or in some such way as that, but under such circumstances he would not be entitled to the entire value of the property which was taken from him. For the same reason that the jury are required to find whether it is the right of property or the right of possession which they find in the defendant, where the judgment is in his favor, the court would, when the matter is submitted to it without the intervention of the jury, find whether it is the right of property or the right of possession that is in the defendant. If it.be said that where a judgment is rendered for the defendant, it must be presumed that the court made the right finding as to whether the right of property or the right of possession only was in the defendant, still the judgment fails to fix which it is, and surely the intention of the statute is that it shall be known by the judgment whether it is the one or the other that -is found in the defendant. In the case of Wolf v. Myer, 12 Ohio St., 432, this is said by the court, quoting from the statute:

‘ ‘ In all eases where the property has been delivered to the plaintiff, where the jury shall find upon issue joined for the defendant, they shall also find, whether the defendant has the right of property, or the right of possession only, at the commencement of the suit.”

Then follows this language by the court:

•‘‘It is error for the court, in such a case, to assess the defendant’s damages, without the intervention of a jury, and without finding whether the defendant had the right of property or the right of possession only, at the commencement of the suit.”

It will be seen by this that if the jury is dispensed with, then the court doing that which the jury (if there is a jury) is required to do, must find affirmatively whether it was the right of property or the right of possession only which was in the defendant at the time of the commencement of the action.

For error in entering judgment for the defendant without having first found whether the right, of property was in the defendant or the right of possession only, the judgment is reversed and the cause remanded to the court of common pleas.


text:
    NO STENOGRAPHER PRESENT AT A CRIMINAL TRIAL.
    Court of Appeals for Hamilton County.
    Roy Austin v. State of Ohio.
    Decided, March 15, 1913.

      Criminal Law—Not Error to Try a Case Without an Official Stenographer to Report the Testimony, When—Section 1548.
    Section 1548, General Code, does not make it mandatory upon a trial judge to provide the defense in a criminal case with an official stenographer, and a judgment of conviction will not be reversed for failure so to do, where it appears there was no official stenographer available at the time, and no claim is made that the verdict is against the weight of the evidence, or that the defendant was not proved guilty beyond a reasonable doubt, or that any manifest injury resulted to the defendant through failure to have a stenographer, in attendance.

      Howard D. Burnett, for plaintiff in error.

      Simon Boss, Jr., contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H:, J., concur.
   Plaintiff in error, who was convicted of grand larceny, seeks to set aside this conviction solely because he was not furnished the services of an official stenographer to report all the testimony at the trial.

The bill of exceptions recites that upon the calling of the case for trial on the day on which it had been regularly set for trial, the defendant objected to being put to trial-on that day for the reason that:

"First. Written application was made by .the counsel for the defendant for an official stenographer to report the evidence •and proceedings in said trial. No official stenographer being available, the court ordered the defendant to proceed to trial without said stenographer, to which objection was made and exception noted. The court directed counsel to take full notes of the evidence and stated that he would do likewise, as it was impossible to get a stenographer and numerous eases were ready for trial.”

It does not appear that counsel for defendant had made any effort prior to the actual time of trial to arrange for an official stenographer, or finding all of the official stenographers engaged in other cases at that time to provide for an outside stenographer. Nor is it claimed that the verdict was against the weight of the evidence or that defendant was not proved guilty beyond a reasonable doubt, or that any manifest injury has resulted to defendant by reason of his not being able to have an official stenographer.

■ Defendant claims that General Code, 1518, makes it the mandatory duty of the trial judge to furnish him an official stenographer upon his request or to continue the case, and that the failure to do so constitutes reversible error. We do not so regard it.

Finding no error in the record, judgment is affirmed.