text:
    POCKET PICKING.
    [Lucas (6th) Circuit Court,
    March 13, 1903.]
    Haynes, Parker and Hull, JJ.

      Harry Brown v. State of Ohio.
    Verdict of Pocket Picking Valid Under Indictment Charging Robbery.
    A verdict of pocket picking may be supported under an indictment charging robbery, for the two crimes are of the same essential character; both being offenses against the person, differing only in the element of force or- violence or putting in fear, and the former is so included in the latter as to come within the purview of Sec. 7316 Rev. Stat., authorizing a conviction of a crime of lower degree than that charged in the indictment where the evidence is insufficient to warrant the jury in convicting of the degree charged.
    Error to the common pleas court of Lucas county.
    Wertman & Dickey, for plaintiff in error.
    W. G. Ulery, prosecuting attorney, and J. H. Martin, for defendant in error.
    Robbery is simply an aggravated form of larceny, that is, larceny with an added element of taking from the person by force or violence or putting in fear. 1 McClain, Cr. Law Sec. 471; 2 Bishop, Cr. Proced. Sec. 1002; Bishop, Directions & Forms Sec. 932.
    In the absence of active opposition or by being put in fear, it will be robbery, if the article stolen is so attached to the person or clothes as to create resistance, however slight, in the detaching the article from the ' person or clothes of the person robbed. 2 Bishop, New Cr. Law Sec. 1167; Rex v. Mason, Russ. & Ry. 419; State v. Broderick, 59 Mo. 318; State v. McCune, 5 R. I. 60 [70 Am. Dec. 176]; State v. John, 5 Jones ' (N. C.) 163 [69 Am. Dec. 777]; Rex v. Moore, 1 Leach 335; 1 Bishop, Cr. Law Sec. 599.
    Section 7316 Rev. Stat. provides that, “When the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of any inferior degree.” Craig v. State, 49 Ohio St. 415 [30 N. E. Rep. 1120; 16 L. R. A. 358],
    “That where an accusation for a crime of a higher nature includes an offense of a lower degree the jury may acquit him of the graver offense and return him guilty of the least atrocious.” Stewart v. State, 5 Ohio 241.
    Where crimes are so included within one another that a higher comprehends whatever a lower one does and more there can be a conviction for the lower on the indictment for the higher. McClain, Cr. Law Secs. 468, 471, 484, 575; 1 Bishop, Cr. Law Secs. 792, 794, 795, 1054, and 1055; Abbott’s Trial Brief 655; Matthews v. State, 4 Ohio St. 539; People v. Jones, 53 Cal. 58.
    Now robbery is a compound or aggravated larceny. It is a stealing from a person with the elements of assault or put in fear superadded, hence it is that an adequate conviction of either offense bars a prosecution for the other. This could only be upon the theory that larceny is included in robbery, hence also under an indictment for the higher crime the jury may find the defendant guilty of the lower, if they are under a reasonable doubt as to which of the two offenses he is guilty.” Haley v. State, 49. Ark. 147 [4 S. W. Rep. 746]. -i
    An indictment for robbery therefore includes larceny and the accused may be convicted of that offense. Allen v. State, 58 Ala. 98; Haley v. State, 49 Ark. 147 [4 S. W. Rep. 746] ; Stevens v. State, 19 Neb. 647 [28 • N. W. Rep. 304] ; State v. Graff, 66 Iowa 482 [24 N. W. Rep. 6] ; People v. Jones, 53 Cal. 58; Commonwealth v. Prewitt, 82 Ky. 24Ó; State v. Taylor, 3 Ore. 10; Hamilton v. State, 36 Ind. 280 [10 Am. Rep. 22]; Stewart v. State, 5 Ohio 241; Matthews v. State, 4 Ohio St. 539, 540; Howard v. State, 25 Ohio St. 399; Brown v. State, 33 Neb. 354 [50 N. W. Rep. 154],

       Motion for leave to file petition in error overruled by the Supreme Court.

   HULL, J.

The plaintiff in error was indicted by the grand jury of this county for the crime of robbery, and was put on trial. At the conclusion of the state’s testimony his counsel made a motion that the jury be instructed to return a verdict of not guilty, for the reason that the state’s evidence had failed to establish the crime of robbery, in that violence, or force or putting in fear, had not been established by the evidence. The court held, upon this motion, that the state had failed in this respect to establish the crime of robbery, but that there was included within the offense of robbery the crime of pocket picking, and overruled the motion. No evidence was offered by the defense, and the court submitted to the jury the question as to whether the defendant was guilty of pocket picking. The defendant was found guilty by the jury of that crime, and sentenced to the penitentiary. It is to reverse that judgment that a petition in error was filed-in this court.

It is claimed by the plaintiff in error that, under the indictment charging him with robbery, he could not be convicted of the crime of pocket picking, as it is called in the statute; that this is another and a separate and distinct offense, described in the statute, and thát before the defendant could be put upon trial or convicted of it, he must be indicted for that offense, either by a separate indictment or by a separate count in the indictment; and that the court therefore erred in submitting the question to the jury as to his guilt of pocket picking. It is claimed that the defendant should have been discharged.

The jury were instructed by the court to return a verdict of not guilt}’ as- to the crime of robbery, which was done, and a verdict of guilty returned- as to the offense of pocket picking.

■ The question raised is whether the offense of pocket picking is so included within the offense of robbery as to come within Sec. 7316 Rev. Stat. which provides for the conviction of an attempt to commit a crime and for the conviction of a crime of a lower degree where the evidence is insufficient to warrant the jury in convicting of the degree charged in the indictment.

The statute under which the defendant was indicted and prosecuted •is Sec. 6818 Rev. Stat., which provides that:

- “Whoever by force or violence or by putting in fear, steals and takes from the person of another anything of value, is guilty of robbery, and shall be imprisoned in the penitentiary not more than fifteen nor less than one year; and whoever otherwise than by force and violence or by putting in fear, steals and takes from the person of another anything of value shall be deemed guilty of pocket picking, and shall be imprisoned in the penitentiary not exceeding five years nor less than one year.”

As I have said, the defendant, Brown, was indicted under the first part of the statute, charging him with robbery. There was no count charging him with pocket picking.

It is claimed by the state that the defendant was properly convicted of pocket picking-under Sec. 7316 Rev. Stat., which provides as follows:

“Upon any indictment the jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit the same, if such attempt is an offense; when the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any inferior degree; and if the offense charged is murder, and the accused be convicted by confession in open court, the court shall examine the witnesses, and determine the degree of the crime, and pronounce sentence accordingly.”

It is claimed by the state that the charge of robbery, as contained in the indictments, includes the offense of pocket picking; that the offense of pocket picking is an offense of a degree inferior to that of robbery. ’ It is claimed that robbery contains all of the ingredients or essentials of pocket picking and one additional.ingredient, to wit: force or putting in fear, and that they differ only in that respect. On the other hand, it is claimed by the plaintiff in error, that they are two separate and distinct offenses.

The doctrine of included offenses was recognized by the law before the passage of this statute.. It was a part of f!he common law of the-land that a defendant might be convicted of an offense of a less degree than the one with which he was charged, if the one was properly included in the other. So this statute is in a sense only declaratory of the law as it stood before its enactment. In Stewart v. State, 5 Ohio 241, it is stated in the syllabus:

“Indictment for assault with intent to kill, party may be convicted of assault and battery, or assault alone.”

Judge Lane, delivering the opinion of the court, on page 242 said:

“It is assigned'for error, that the court refused to charge the jury, that in an indictment for an assault with intent to kill, they might find him guilty of simple assault and battery, without any such intention; and in charging that in this case, if the jury found him guilty at all, it must be guilty of the whole accusation.
“A doubt has been raised, whether the bill of exceptions is taken to the refusal to charge, as well as to the actual charge; but a majority of the court believe it is, although somewhat informal, sufficiently applicable to both.
“We are all of opinion that the charge was erroneous; that a jury may find a verdict of guilty for part, and acquit for the residue; that where an accusation for a crime of a higher nature includes an offense of a lower degree, the jury may acquit him for the graver offense, and return him guilty of the least atrocious. The cases and examples are collected in 1 Ch. Cr. Law G38, and there is no foundation in this country for the distinction made in England on this point, between felonies and misdemeanors; for here, an indictment for the higher offense rather adds to than subtracts from his privileges.
“Still, we cannot say that the defendant might not be prejudiced by his instruction, and therefore the judgment must be reversed.”

This question of included offenses is discussed in 1 Bishop Cr. Law:

Sec. 794. “Where offenses are included one within another, as before explained, a person indicted for a higher one may be convicted of any below it not merged in that for which he is indicted, unless the allegation should happen to be in a form not charging the lower.

Sec. 1054. “Where crimes are so included within one another that a higher comprehends whatever a lower one does and more, as previously explained, a conviction for any higher one bars a prosecution for any lower; since, if the defendant is guilty of all, he is necessarily so of each particular part. It is believed that there is no exception to this rule. In general, the same consequence follows an acquittal; because generally there can be a conviction for the lower on an indictment for the higher. But the effect of an acquittal is not, like that of a conviction, universally so.

Sec. 1055. * * * “Robbery and larceny, being both felonies, and the latter included in the former, an acquittal for robbery will bar an indictment for the larceny of the same things. And equally an acquittal for the larceny will bar the robbery indictment.”

The doctrine of included offenses and the constitutionality of statutes permitting a jury to convict of an offense not charged in the indictment but which is one of a lower or inferior degree and included in the greater seem to be well established by the authorities; but it is claimed here that the offense of which Brown was convicted is not properly one of a degree inferior to and lower than the one charged in the indictment. It is- said there are no degrees of robbery in this state; the crime is not divided into degrees — first, second, and otherwise, as is the crime of homicide. The elements of robbery, the ingredients, are laid down by the Supreme Court in Matthews v. State, 4 Ohio St. 539, 540, where it was said in the syllabus:

“It is essential that an indictment for robbery should contain a substantial averment of the intent to steal and rob.”

On page 541 of the opinion Judge Bartley, in the opinion, said:

“Three ingredients are essential to constitute the crime of robbery:
“1. The use of force and violence, or the use of means whereby the injured person is put in feay;
“2. A taking from the person of another of money, or other personal property;
“3. An intent to rob or steal.”

The crime of robbery, then, consists in taking from the person of another, with force or violence, or by means whereby the injured person is put in fear, money or other thing of value, and this must be- accompanied with an intent to steal; and if any one of these ingredients is lacking, the crime of robbery does not exist.

Formerly the crime of pocket picking was not known to the law as a separate and distinct offense, and if a man was indicted for the crime of robbery, and any one of the elements necessary was lacking, he could not be convicted of the crime of robbery, and he could only be convicted, if at all, of the offense of larceny. This statute (Sec. 6818 Rev. Stat.), however, provides for the additional offense of pocket picking as follows :

“And whoever otherwise than by force and violence, or by putting in fear, shall steal and take from the person of another anything of value, * * * shall be deemed guilty of pocket picking, and shall be imprisoned in the penitentiary not exceeding five years,” etc.

So that the offense of pocket picking is the same as that of robbery, except that it lacks one ingredient, to wit, that of force and violence or putting in fear. The crime of robbery, as defined by the statute, exists whenever one by force or violence or putting in fear steals and takes from the person of another anything of value. The amendment to the statute defining the crime of pocket picking was intended to cover the case of larceny from the person where the element of force and violence or putting in fear was lacking, and to make that offense a felony or penitentiary offense, instead of a mere larceny.

It is not necessary that crimes should be divided into degrees, in order that they may come within a statute, such as Sec. 7316 Rev. Stat. Where one crime is of a more atrocious or heinous character than another, if one is properly included within the other, then the one may be said to be of a higher degree than the other, as larceny is included, or may be included, if property is taken, in the crime of burglary. Assault and battery is included in the crime of robbery, and one may be convicted of assault and battery who is indicted for robbery. It has been held in People v. Jones, 53 Cal. 58, that robbery includes larceny. The syllabus of the case is:

“The crime of robbery includes that of larceny, and under an indictment for the first offense the jury may find the defendant guilty of larceny, if they entertain a reasonable doubt as to which of the two offenses he was guilty of.”

In the opinion the court say:

“It is obvious from the foregoing definitions that an indictment for robbery must aver every fact necessary to constitute larceny, and more.
“The jury máy find a defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment. And as there was some evidence tending to show that the crime was merely larceny, the defendant had the right to insist on the instruction he requested the court to give.”

In Commonwealth v. Prewitt, 82 Ky. 240, the syllabus contains this:

“Under an indictment for robbery the court erred in refusing to instruct the jury that the defendant might be convicted for simple larceny. Robbery being a higher grade of crime than larceny, under the criminal code, the former includes the latter.”

The court in the opinion say :

“The code provides, Sec. 262, ‘upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment.’ ”

On page 241 of the opinion the court say:

“Our statutes do not undertake to define either robbery or larceny. For their meaning we must have recourse to the common law. ' Blackstone defines robber}»' to be the felonious and forcible taking from the person of another of goods or money of any value, by violence or putting him in fear. This is designated as mixed or compound larceny. Simple larceny is the -felonious taking and carrying away of the personal goods of another. Choses in action, such as bonds, bills and notes, not importing any property in possession, were held not to be thé subject of larceny. Hence our statutes making the taking of such things larceny. The principal ingredient in each is the táking of the personal goods of another, without his consent, and with the intention on the part of the one taking to convert them to his own use. Larceny is the generic term, robbery being specific and of a higher grade than simple larceny because of the element of force or fear entering into it; larceny is of a lower degree of the same offense as that charged in the indictment, and, therefore, punishable under the code, as quoted. The court below erred in not instructing the jury that under the indictment for robbery a conviction for simple larceny might be had.”

In State v. Graff, 66 Ia. 482 [24 N. W. Rep. 6], the court hold, as stated in the syllabus, as follows:

“The crime of robbery (code, Sec. 3858) includes the crime of larceny from the person. (Code, Sec. 3905.) Accordingly, an indictment for larceny from the person is sustained by evidence which establishes the crime of robbery.”

The defendant complained in this case that if he was guilty of anything he was guilty of robbery, and the evidence showed that he was guilty of that; but the court say on page -J 83 :

“All that can be claimed is that, while the evidence established all the elements of the crime charged in the indictment, it proved one fact in addition thereto, and would have warranted a conviction of another offense if defendant had been accused of that offense. But this affords no ground for arresting judgment on the verdict. The court is warranted in pronouncing judgment on the verdict of guilty in any case in which the proof establishes all the elements of the crime charged in the indictment.”

In Stevens v. State, 19 Neb. 647 [28 N. W. Rep. 304], the fourth paragraph of the syllabus is as follows:

“A person charged in an information with robbery may be convicted of larceny, as the greater includes the less offense.”

And this is discussed in the opinion. The court say on page 650 :

“Objection is made that the court did not instruct the jury that they could find the plaintiff guilty of larceny, if the proof failed to show sufficient violence of putting in fear to constitute robbery. There is no doubt that a trial and acquittal for robbery is a bar to an indictment for larceny, where the property alleged to have been taken is the same. The People v. McGowan, 17 Wend. 386. In this case it is said by Cowen, J., speaking for the court: ‘The first indictment, though, for robbery, involved the question of simple larceny, of which the person under that indictment might' have been convicted/ This is upon the principle that where several crimes are included, one within the other, a conviction of the higher bars a prosecution for any lower, since the greater includes the less.”

In 1 McClain, Cr. Law Sec. 484, we find this:

“As the indictment for robbery must allege everything necessary to constitute larceny, there may be a conviction for larceny under an indictment for robbery. So there may be conviction for larceny from the’person.”

The case of Brown v. State, 33 Neb. 354 [50 N. W. Rep. 154], is directly in point. This is in the syllabus:

“Held, that the charge of robbery includes the offense of stealing from the person without force and violence or putting in fear, and that under an information for robbery the accused may be convicted of stealing from the person.”

In that state there is a statute covering the crime of robbery and also one covering the crime of pocket picking. This last statute was as follows :

“Every person who steals property of any value by taking the same from the person of another without putting said person in fear by threats or the use of force and violence shall be deemed guilty of grand larceny, and shall upon conviction thereof, be punished by confinement in the penitentiary for not less than seven years.”

The defendant asked the trial court to charge the jury as follows, which was refused:

“The jury are instructed that if you find from the evidence that the defendant took the property described in the information from Anna M. Kervan, against her will, but did not first put said Kervan in fear, and did not use any force or violence except such as constitutes the sudden snatching of said property from said Kervan, you will not be warranted in finding the defendant guilty as charged in the information, but may find him guilty of larceny.”

The court did give this instruction to the jury:

“It is permissible, under this information, if in your opinion the evidence justifies and warrants you in so doing, to find the defendant guilty of larceny from the person. The putting in bodily fear, or the use of force and violence, is not a necessary element in the crime of larceny from the person, but the felonious taking and carrying away from the person with the intent to convert property to his own use and against owner’s consent, are necessary.” * * *

The Supreme Court say in the opinion, pp. 357-358:

“The question of the validity of Sec. 113a was before this court in State v. Arnold, 31 Neb. 75 [47 N. W. Rep. 694], and the statute sustained. The latter statute was passed to reach the case of pickpockets, who, prior to the passage of the act, had comparative immunity from punishment. State v. Arnold, supra. Robbery is the felonious and forcible taking from the person of another goods or mone)' of value by violence, or putting in fear. 4 Black. Com. 243; 2 Bouv. Law Dic. 488. The crime of stealing from the person is not as heinous a crime as that of robbery, but it possesses some of the elements of robbery; in other words, it is of the same nature, but does not go as far as robbery. To the extent vof taking .from the person of another money or other .valuable things, both offenses are alike, and both are punishable in the penitentiary. The crime of robbery certainly includes the crime of stealing from the person, and when such is the case, the jury may find the accused not guilty of the higher offense and guilty of a less one. There was no error, then, in giving and refusing the instructions referred to. There is no error in the record, and the judgment is affirmed.”

This case seems to hold squarely that the offense of stealing from the person is included in the charge of robbery, and that where one is indicted for robbery, he may be found guilty of pocket picking.

There are other authorities that might be cited, but these are sufficient, nnd they establish that the offense of pocket picking is included 'within the charge of robbery, and that it is properly denominated an offense of a lower degree or a less degree than the crime of robbery. It lacks the one essential element of robbery, to wit, that of force or putting in fear. It is, in fact, a crime of a less heinous character than that of robbery. It is punishable by a shorter period of imprisonment in the penitentiary. We think it may properly be called a crime of a nature similar to that of robbery — a crime against the person, involving the stealing of something of value from the person, but an offense of a lower grade or degree. This amendment relating to pocket picking was doubtless enacted by the legislature to meet cases where persons were charged with the crime of larceny in the indictment,' and the evidence failed to show the one element necessary to constitute the crime of robbery along with the other two, to wit, that of force and violence. To meet such cases as that the legislature made pocket picking a penitentiary offense, including it in the same statute.

The defendant cannot complain that he has not been notified of the nature of the charge against him in such an indictment. He has been notified of the entire charge. He has been charged with the offense that he has committed, and with one element more. This could not mislead him. The fact that he was charged with taking property of value from the person of another, and also charged with taking it by violence or putting in fear, could not mislead him in making his defense or preparing for his defense. The two crimes are of the same essential character. They are both offenses against the person, and differ only in this element or ingredient of force or violence. We therefore are of the opinion that it was not error for the court to submit this question to the jury, and that the defendant could be properly convicted of the offense of pocket picking under the indictment charging him with robbery.

It is claimed by the state that the evidence contained in the record shows that the defendant was guilty of the crime of robbery, and that the court ’erred against the state in taking that question from the jury. No cross-petition in error has been filed by the state. Therefore it is not necessary for us to consider that question. We have not considered it, and do not pass upon it in the case.

For the reasons stated the judgment of the court of common pleas will be affirmed.


source: Caselaw Access Project

author: McCARTY, J.

license: Public Domain

text:
    RAILROADS — INFANTS.
    [Knox (5lh) Circuit Court,
    April, 1903.]
    Voorhees, Donahue and McCarty, JJ.
    Baltimore & Ohio Ry. Co. v. Joyce Hottman (Admrx).
    1. No Action at Common Law for Death by Wrongful Act.
    An action for death by wrongful act given by bee. 0134 Rev. Stat. in favor of the children of the decedent, could not be maintained at common law, and being a creature of statute, the rights and liabilities of the parties are governed thereby.
    2. Jury Should Consider Pecuniary Injury to Each Beneficiary in Arriving at Amount of Verdict.
    An administrator plaintiff in an action to recover damages for death by wrongful act, is a mere nominal party, the action being for the exclusive benefit of the beneficiaries named in Sec. 6135 Rev. Stat., and-in arriving at “the total amount of damages the jury should consider the pecuniary injury to each separate beneficiary.
    3. When Beneficiary Estopped to Make Claim for Death by Wrongful Act.
    A beneficiary of a policy issued by a benefit association of a'railroad company, by accepting the benefit thereunder and executing a voucher in her own name and also as administrator releasing the company from all liability by reason of the death of the deceased, is estopped from making any claim in .her own behalf by reason of the death of deceased by wrongful act.
    4. Release by Administration Without Consent of Probate Court not Binding on Beneficiaries.
    A release by a beneficiary under a benefit policy issued by a railroad company in her own name and as administrator, in consideration of the payment of the amount of the benefit, which is not consented to or approved by the'probate court, does not affect the right of the minor children of deceased to recover against the company for the death of decedent by wrongful act.
    5. Consent of Probate Court to Settlement not Presumed When Record Silent.
    Where the record fails to disclose the consent of the probate court under Sec. 6135 Rev. Stat. to a settlement with defendant for death caused by wrongful act, the conclusive presumption is that such consent was not given.
    6. Fellow-Servant Law Constitutional.
    Section 3365-22 Rev. Stat, providing that a railroad company shall he liable for the negligence of an employe -in authoritv over others in any separate branch or department, commonly called, the “fellow-servant law.” is constitutional.
    T. Verdict not Excessive. When.
    Where deceased was 33 years of age, in full vigor of manhood, and able to earn from $75 to $100 per month as a locomotive fireman, a verdict of $5.500 for death by wrongful act in favor of two children, aged two and four years re- ' speclively, is not excessive.
    Charles M. Cist and F. V. Owen, for defendant in error:
    Section 6134 Rev. Stat., conferring the right of action for wrongful death is a new principle unknown to the common law. Davis v. Justice, 31 Ohio St. 359,- 363; Kirchner v. Myers, 35 Ohio St. 85. • Section 6135 Rev. Stat., confers upon the personal representative a qualified power to settle, which can only be exercised by the consent of the court which appointed the personal representative, who is a merely nominal party in such proceedings. Wolf v. Railway Co. 55 Ohio St. 517, 530 [45 N. E. Rep. 708]; Stewart v. Railway Co. 168 U. S. 445 [18 Sup. Ct. Rep. 105] ; Barber v. Cary, 11 N. Y. 397; Gulick v. Griswold, 160 N. Y. 399 [54 N. E. Rep. 780]; Masterson v. Stevens, 37 S. W. Rep. 364 [Tex. Civ. App.]; Stevens v. Masterson, 90 Tex. 417 [39 S. W. Rep. 292, 921] ; Berrien v. Thomas, 65 Ga. 61; Loring v. Salsbury Mills, 125 Mass. 138; Simpson v. Hornby, 2 Vt. 723; Ch. Pr. 452; Baltimore & O. Ry. Co. v. McCamey, '5 Circ. Dec. 631 (12 R. 543) ; Helman v. Railway Co'. 58 Ohio St. 400,, 401 [50 N. E. Rep. 986; 41 L. R. A. 860]. As to the constitutionality of the fellow servant act. Pierce v. Van Dusen, 9 O. F. D. 419 [78 Fed. Rep. 693; 24 C. C. A. 280; 47 U. S. App. 339]; Froelich v. Railway Co. 24 O. C. C. 359; Roe v. Railway Co. 13 Dec. 260.
    Waight & Moore and J. H. Collins, for plaintiff in error.
   McCARTY, J.

(Orally.)

This is an action by the personal representative to recover for what is known as a death loss. An injury to the decedent in this case resulted in his death, and Joyce Hottman, his widow, was appointed administra-trix of his estate and thereby authorized to bring an action against the Baltimore & Ohio Railroad Company for that death and the loss occasioned thereby.

There are several questions of importance — intricate questions — involved in this record. Mr. Hottman, while in the service of the railroad company, became a member of the benefit association of the company. He signed an application for membership therein and made a contract by the terms of which, in case of death, the widow as beneficiary, became entitled to receive $1,000, i-n consideration of which the widow was to execute a voucher releasing the company from any and all liability by reason of the death of decedent, and also a voucher by her in her representative capacity also releasing the railroad company from any liability on account of the death.

The action was brought in the court below by this widow as the personal representative of the decedent, making the usual averments as to the negligence of the company, the death resulting thereby, and that he left at his death his widow and two minor children; that the widow had foreclosed and estopped herself by means of these vouchers from making anv claim in her own behalf, so that she brought the action solely for the benefit of the two children, one four and the other two years old, and expressly disclaims making any claim on .her own behalf on account of the death. I will read enough of the petition to show that she disclaimed making any claim on her own behalf:

“The plaintiff further says that after her appointment as administra-trix,, as aforesaid, without the advice of counsel, and without'the advice or consent of the probate court which appointed her, and without knowing that she had a right to apply, to the probate court for advice, she accepted the sum of $1,000 from the relief or insurance department of said defendant company, and signed a paper in the form of a full release of her right of action, as said administratrix, for the death of her husband, as aforesaid. Plaintiff is informed that shé is thereby estopped from claiming anything as a beneficiary in this action, and therefore brings this action for the sole benefit of her two children, as aforesaid, who have been damaged in the premises in the sum of $9,000, for which plaintiff prays judgment.”

i Now that is the claim made in the petition. That is the prayer of the petition, and it is an express disclaimer on the part of the plaintiff of anything in her own behalf by reason of the death of her husband, setting forth in express terms that she, without the advice of counsel, having re’ceived that $1,000 was thereby estopped from making any further claim, and there is no doubt about the truth of that.

i Defendant for a second answer to plaintiff’s petition, sets up the contract of insurance providing that the company shall pay, in case of death,1 to the widow as beneficiary, the sum of $1,000, which payment shall be a complete and full dischárge of the railroad company as to any liability on accoünt of the death loss whether the company was guilty of negligence or not; so that the question is squarely made whether, this widow acting in her representative capacity and bringing this action on behalf of the children, by signing these vouchers, which she did sign both as widow and as administratrix, has foreclosed the right of these children to recover from the railroad company.

One of thése children was two years of age and the other four. Of course, nobody would contend that they had any power to consent. The question is whether this representative could consent for them. Now we are free to admit that she could consent for thepi providing she did so in pursuance of the statute. The statute authorizes a settlement to be made after action is brought, or before, by the consent of the court which appointed the legal representative, to make that settlement. • The authority or power to make the settlement depends upon the consent of the probate court who appointed the personal representative.

Now, it is contended on behalf of the railroad company that, although there is no consent shown to have been given by the probate court that appointed the administratrix, yet inasmuch as she signed these vouchers as administratrix, she cut off all right which her children had to recover any damages in this action. Now, considering the statute permitting recovery for wrongful death, I will remark that the action conferred by this statute is a creature of the law. The older members of the bar will remember when there was no such action or cause of action. -The common law provides for no such cause of action, and if it were not for the statute there would be no cause of action oh behalf of these children and none could be maintained. Now the cause of action being a creature of the statute, the statute must be complied with id all respects.

In the case of Mack v. Brammer, 28 Ohio St. 508, a military land warrant was issued to the widow and minor children of a soldier of the Mexican war under a statute which provides that the guardian of such minor children may, “upon being duly authorized by the orphans or other court having probate jurisdiction, have power to sell the warrantsthe guardian of the minor child with the widow, assigned the warrant without being authorized to do so by the probate court to a person who knew all the facts of the case, but supposed that the assignment gave him a clear title to the warrant. The Supreme Court held that the assignment of the guardian without authority of the proper court did not transfer the right of the minor in the warrant to the purchaser; that where the statute requires a particular authority to be pursued in the transfer of an interest in property, the purchaser is presumed to know such authority, and if he purchases where the authority has not been pursued, he does so at his peril.

So that the rights of these minor children could not be cut off by any unauthorized act of their mother, the plaintiff below. The language of the statute, Sec. 6135 Rev. Stat., providing for action for wrongful death, is as follows:

“Every such action shall be commenced within two years after the death of such deceased person. Such personal representative, if he was appointed in this state, with the consent of the court making such appointment may at any time, before or after the commencement of a suit, settle with the defendant the amount to be paid, and the amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates left by persons dying intestate.”

So that it will be observed that the administratrix had no power of making any settlement that would be binding on these minor children, without the consent of the probate court making the appointment. If the probate court had consented, in the proper way, so as to be evidence of its consent, she could then have made the settlement, and that settlement would then have been binding, and would have bound those minor children, because the statute authorizes that sort of a settlement to be made. But there is no pretense in the testimony in this case that the probate court ever consented to anything of that sort, although possibly counsel may have, in their zeal, said something to the effect that the probate court did, perhaps, consent — as there is no proof to show that it did not, there is no proof to show that it did; but that very fact, that there is no proof to show that it did, conclusively cqncludes the party from any such contention as that.

Now then, the action is prosecuted in behalf of these two minor children. They are the only parties in interest, and, as is said in Wolf v. Railway Co. 55 Ohio St. 517 [45 N. E. Rep. 708], the administratrix is simply the representative, and has no personal interest in the affair. I want to call attention to the syllabus in Wolf v. Railway Co. supra:

“1. In actions in the name of an administrator under Secs. 6134 and 6135 Rev. Stat., the administrator is a mere nqminal party, having no interest in the case for himself or the estate he represents, and such actions are for the exclusive benefit of the beneficiaries in said sections named.
“2. In arriving at the total amount of damages in such cases, the jury should consider the pecuniary injury to each separate beneficiary, not found guilty of contributory negligence, but the verdict should be for a gross sum, not exceeding ten thousand dollars.”

In this case the Supreme Court, in an extended and elaborate and interesting opinion by Judge Burket, say, p. 527:

“The action was brought under Secs. 6134 and 6135 Rev. Stat. At common law such an action could not be maintained. The action being the creature of the statute must be governed by the statute. * * * ‘Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.' ”

And on page 531 the court say:

“The .following authorities show that the administrator is a mere nominal party, and that the action will be defeated by-the contributory negligence of the beneficiaries,” holding, in effect, that the action is for the benefit of the parents — the beneficiaries — and that the personal representative has no personal interest in it; could not even take it for the payment of the ordinary expenses of the settlement of the estate.

Now, taking that view of the matter, in the mind of the court, it disposes of the requests made to charge, which are, in effect that those vouchers signed by this administratrix foreclosed any right that she or the beneficiaries whom she represented had to participate in the fruits of this section. The counsel below requested the court to so instruct the jury. The court refused to so instruct the jury. The requests were made in several different forms so as to completely and skillfully cover the ground. Then exceptions to the refusal of the court to so instruct the jury were taken, and properly saved in the record, and then what the court did say in its charge was also excepted to, and that is properly saved in the record.

It was also urged that the statute upon which the liability 'in this case arises is unconstitutional — that is, the act providing that the railroad company should be liable for the negligence of an employe in authority over employes in any separate branch or department, the claim being made that some person in authority on some other train of the defendant company was guilty of negligence that produced the injury that resulted in the death of this decedent — that that act was probably unconstitutional. But we find otherwise. We don’t think it is unconstitutional. It has been before the Supreme Court a number of times, and has received a settled adjudication — not on the direct question, but it has passed in review before the Supreme Court, and it is pretty safe to say where a case has been carried to the Supreme Court on particular questions, and the court has passed upon them,' and no question raised there by counsel or court as to the constitutionality of such actions, that they may be considered as pretty well settled, and we do not feel disposed to disturb the finding of the court on that question.

There is but one other question which we are called upon to decide. The verdict below, as shown by the record, was $5,500. The action was for $9,000. In yiew of the disclaimer on the part of the widow, the question is as to whether this -was excessive as a verdict in favor of the children. It is contended on the part of the plaintiff in error that there was some prejudice, or something else, that induced the jury to go beyond what they ought to have done in awarding damages in behalf of these children.' Now it.is true that $5,500 is considerable of a verdict, but yet it is but $2,750 for each of these children. The father of those children was able to earn probably from $75 to $100 per month. He was said in the record somewhere to have been thirty-three years old. He was in the full vigor of manhood, able to earn that amount of money, and take care of his children and family, and all of us know who have done anything in that regard, that children of that age need considerable for taking care of them, and providing for their education, and their clothing. And then they may have some expectation to inherit, on the death of their father. The jury, under proper instructions of the court, took into account all of these things. They had the whole matter’ before them. The matter was property submitted to them, and they, in the exercise of their discretion, concluded $5,500 was not excessive; and while we say and are of' opinion that that is a pretty large verdict, still it is not so excessive that we feel we ought to disturb it. The conclusion we have reached is that the judgment should be affirmed, with costs, without penalty. And that will be our finding.


author: JELKE, J.

text:
    CANALS — INJUNCTION.
    [Butler (1st) Circuit Court,
    April, 1903.]
    Jelke and Swing, JJ.
    Cincinnati & Dayton Railway Co. v. Miami & Erie Canal Transportation Co.
    1. Grant of Canal Lands Subject to Paramount Use for Canal Purposes.
    The board of public works cannot abridge any of the natural, original or de- ' veloped uses of the state canals by a grant to a railroad company of a right of way across the canal property, and in case of conflicting rights, the use for canal purposes is paramount, and the railroad must yield thereto. Hence, a use, under such a grant, which is an interference with or limitation upon any of these uses of the state canals, transcends the rights of the state, and is in the nature of a trespass.
    2. Injunction Against Unconstitutional Taking of Property Denied, When.
    ' Even if it is not absolutely true that there is no taking of private property within the meaning of Sec. 19, Art. 1 of the constitution, when, in the use of state canal property for a lawful canal purpose, the tracks of a railway company, which had been granted a right of way across such canal property by the board of public works, are crossed and cut, nevertheless, as equitable remedies are not matters of absolute right, an injunction to restrain such an interference, with, or taking of, private property will be refused where such taking would be the merest figment, without substance, and the damage done clearly reparable.
   JELKE, J.

Application is made to this court for an order enjoining the Miami & Erie Canal Transportation Company from crossing and cutting the tracks of the Cincinnati & Dayton Railway Company at a point where the latter railway crosses the towpath of the canal.

It Appears, from the evidence; that the construction upon which the Miami & Erie Transportation Company proposes to run and operate the car or motor used for the propelling of canal boats is generally similar to the standard track construction of steam and electric railroads.

An injunction is asked for the following reasons:

1. The defendant company has not come to any agreement with plaintiff company as to terms and conditions upon which it may cross its tracks and right of way.

2. That plaintiff’s right of way and tracks constitute an easement and property rights, and that defendant company has not purchased the right to disturb or interfere with the same.

3. That defendant company has not sought to appropriate plaintiff’s property right by condemnation proceedings, and cannot, because in its creation defendant company has not been given the power of eminent domain.

4. That plaintiff’s claimed property right cannot in any way be taken, disturbed or diminished, under the constitution, without compensation being first made therefor.

We are of opinion that none of these grounds upon which plaintiff company applies for this remedy are sound. When it comes to a question of respective rights, it is the right of the Cincinnati & Dayton Railway Company which must yield to any use of the canal. “The policy of the state has always been to regard canals as a public use of paramount importance as against other public uses, such as common highways'and railroads.” No rights can be granted by the board of public works in the canal property which will in any way abridge any of the natural uses of the canal. The Cincinnati & Dayton Railway Company claims to be where it is by virtue of a grant from the state board of public works.

Now, whether or not there is some latent scheme in this use of the canal, and whether or not it is ultimately going to develop into a diversion of the canal from the uses for which it was constructed, is a question which does not appear, and we cann'ot tell, and which, after all, is a matter which is left to the board of public works and to the state legislature.

This being so, any use of its right of way across the canal, and its banks by the Cincinnati & Dayton Railway Company which is an interference with or limitation upon any of the natural, original or developed uses of the canal, transcends the right granted by the state board to such railway company and becomes in the nature of a trespass upon the canal, and any of plaintiff’s property, tracks and ties, and its claimed rights have no peculiar sanctity.

Plaintiff does not come into this court in very good standing in this controversy. Plaintiff and defendant companies are in some respects rival enterprises. ' ^

Counsel for plaintiff say, frankly: “We cannot agree, we do not expect to agree, and, inasmuch as defendant company has not been granted the power of eminent domain, we propose to stop the defendant right here.”

If plaintiff company manifested more of a spirit of arranging matters and of getting together,- it would appeal more cogently to a court of equity. It is avowedly the purpose to stop the Miami & Erie Transportation Company from the completion of its equipment and from doing business as long as possible.

In our opinion, so far as we can learn from the evidence and the records, what the Miami & Erie Transportation Company is doing is but putting into use a new instrumentality for the use of the canal property within its natural and originally contemplated uses. Now, if opportunity has been given to the Cincinnati & Dayton Ráilway Company to cut its own rails and make way for this new use of the canal, it has nothing to complain of. It might even be said, perhaps not so well by the Miami & Erie Canal Transportation Company, but by the state board of public works, “If you are interfering, or stopping any use of the canal, you will have to get off the canal property entirely.” But, of course, it is not necessary to go that far.

Reliance is had, in a very able brief for the plaintiff, on the constitutional protection which is vouchsafed to property rights, in Sec. 19, Art. 1, that “where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money,” Upon otir understanding of the respective rights of the parties, there is no taking of private property. But even if, perhaps, this conclusion be not absolutely true, and if there might be some little taking of property in the cutting of plaintiff’s rails, it does not follbw that plaintiff is entitled, as a matter of right, to an injunction. Such taking in this case, would be the merest figment.

It appears that defendant has had made, at its own expense, the necessary steel crossings, and is about to do the work without cost to plaintiff. Whatever damage might be done to plaintiff would be perfectly reparable. We are not unmindful that injunction, in cases of taking private property for public use, does not rest on irreparable injury, but on the constitutional guaranty, but even so there must be substance, weight and merit to invoke the chancellor’s intervention.

Equitable remedies are not entirely matters of absolute right; there are elements of discretion and grace in them.

In a note in the Harvard Law Review for April, Vol. XVI, No. 6, p. 444, it is said:

“Discretionary Power of Courts of Equity.
“There is no more distinctive attribute of the power of the chancellor than the latitude of his discretion. Equitable remedies being extraordinary, they may, at the chancellor's discretion, be refused or given in order to do equity. And equity is viewed in this connection in a large sense; it is not only what is just and right as between plaintiff and defendant, but also what, according to a sound public policy, is just and right as regards the interests of the public. Thus, where the plaintiff would not otherwise have succeeded, we see equity giving relief because of the public benefit; and where the plaintiff would ordinarily have prevailed, refusing it because of the public harm. Joy v. St. Louis, 138 U. S. 1-50 [11 Sup. Ct. Rep. 243] ; Conger v. Railway Co. 120 N. Y. 29 [23 N. E. Rep. 983].”

And on page 445 :

“The chancellor is master of his own writ, and though the claimant hold a legal title, is under no compulsion of law to issue the writ, so long ás sound consideration of public morals and conscience forbid.”

It is a rule which recognizes all the general principles of equity as residing in the chancellor’s conscience. “He who seeks equity must do equity,” etc., etc.

.Whether we look with favor or disfavor upon this “electric mule,” up to the present time, we think we must look upon it as an instrumentality for using the canal for canal purposes. ■ This we ought to do in- view of the action of the general assembly and the board of public works. If it subsequently develops into something else) another question will arise..

The restraining order heretofore granted will be dissolved and the prayer of the petition denied.


author: SWING, J.

text:
    TAXATION — CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    April, 1903.]
    Swing and Jelke, JJ.
    Nelson A. Sims (Treasurer), etc., v. Katherina E. Best et al.
    1. Bonus Deposited by Foreign Corporation With State Treasurer Taxable, W HERE.
    The treasurer of state is not a trustee or owner of the bonds and securities deposited with him by a foreign investment company under Sec. 3821r Rev. Stat. as a condition precedent to doing business in this state, although they may be applied to the payment of corporate debts at the instance of creditors. Hence, as the bonds and securities so deposited remain the property of the corporation they must be listed for taxation by it under Sec. 2735 Rev. Stat. in the county within the state where it has its main office and principal place of business.

      2. Ouster of Foreign Corporation Does not Change Situs of Bonds for Purposes of Taxation.
    A judgment of ouster against a foreign investment corporation from its right to do business in the state, does not affect the sittis of the bonds deposited with and remaining in the custody of the treasurer of state, and their place of taxation remains the same as before the ouster.
    On the second Monday in April, 1899, the defendant was the owner of $40,000 in municipal bonds, and in April, 1900, of $60,000, and in April, 1901, of $80,000 in municipal bonds. The bonds named were on deposit with the treasurerof the state of Ohio on the dates mentioned, where they have remained down to the present time, the $40,000 and'the $60,000 having been deposited by the company under the provisions of the act of April 25, 1898 (93 O. L. 401), and the $80,000 having been deposited under the act of April 14, 1900 (94 O. L. 150). On the second Monday in April, 1901, the defendant company had passed into the hands of receivers, a judgment of ouster having been pronounced against it by the Supreme Court, and there was in the possession of the receivers on that day $23,600 vin bonds. None of the bonds in the hands of the state treasurer were returned for taxation by any one at any time or place. The defendant company was a corporation organized under the laws of the state of West Virginia, for the sole purpose of doing business in Ohio. Its articles of incorporation named Cincinnati, Hamilton county, Ohio, as its principal place of business. Its directors and executive officers, and probably all of its stockholders, were residents .of Cincinnati, its home office was there, its stockholders’ meetings were held there, all of its business was conducted there, and its property arose out of the business thus conducted.
    A. B. Benedict, for treasurer of Hamilton county:
    The bonds are taxable in Ohio. Hubbard v. Brush, 61 Ohio St. 252 [55 N. E. Rep. 829], '
    The place where personal property shall be listed is purely a matter of the construction to be given to Sec. 2735 Rev. Stat. Pelton v. Transportation Co. 37 Ohio St. 450; British Commercial Life Ins. Co. v. Commissioners of Taxation & Assessment, 31 N. Y. 32; British Commercial Life Ins. Co. v. Commissioners of Taxes, 28 How. Pr. (N. Y.) 41, 43; Pomeroy Salt Co. v. Davis, 21 Ohio St. 555; Worthington v. Sabastian, 25 Ohio St. 1; Sommers v. Boyd, 48 Ohio St. 648 [29 N. E. Rep. 497] ; McNeill v. Hagerty, 51 Ohio St. 255, 266 [37 N. E.' Rep. 526; 23 L. R. A. 628]: Bisphanu Trusts Sec. 20 and Sec. 40; State v. Haight, 35 N. J. Law 279. ,.
    The state treasurer does not hold as a trustee, but as a depositary or pledgee. But it is the pledger of stock who is taxable: Ratterman v. Ingalls, 48 Ohio St. 468 [28 N. E. Rep. 168] ; so also the mortgagor: Corrigan v. Kimberly, 1 O. S. C. D. 532 (36 Bull. 331), affirmed by the Supreme Court without report. The situs of intangible property is not at the corporate residence. Augusta Bank v. Earle, 38 U. S. (13 Pet.) 519. A corporation excluded from Ohio may have property in Ohio. State v. Pohlmeyer, 59 Ohio St. 491 [52 N. E. Rep. 1027] ; and the fact that the property was acquired illegally does not affect the question of its taxability. Salt Lake City v. Hollister, 118 U. S. 256 [6 Sup. Ct. Rep. 1055] ; Stevenson v. Hunter,-5 Dec. 27 (2 N. P. 300). Npr are debts deductible from bonds or stocks. Payne v. Watterson, 37 Ohio St. 121.
    Dyer, Williams & Stouffer, for treasurer of Franklin county :
    The residence of a corporation is within the state by whose authority it was created. Hubbard v. Brush, 61 Ohio St. 252, 263 [55'N. E. Rep. 829]; Baltimore & O. Ry. v. Cary, 28 Ohio St. 208; Covington & C. Bridge Co. v. Mayer, 31 Ohio St. 317; 25 Am. & Eng. Enc. Law (1 ed.) 146. But in the eye of the law personal property has no locality, but is taxed where it is found. St. Louis v. Ferry Co. 78 U. S. (11 Wall.) 423; Catlin v. Hull, 21 Vt. 152; Cleveland, P. & A. Ry. Co. v. Pennsylvania, 82 U. S. (15 Wall.) 300; Walker v. Jack, 10 O. F. D. 359 [40 Bull. 237; 88 Fed. Rep. 576; 31 C. C. A. 462; 60 U. S. App. 124]; Western Assurance Co. v. Halliday, 45 W. L. B. 437; Waples, Debtor & Creditor Sec. 97; Burroughs, Taxation Sec. 45; Judson, Taxation Sec. 394; New Orleans v. Stempel, 175 U. S. 309 [20 Sup. Ct. Rep. 110]; Buck v. Miller, 147 Ind. 586 [45 N. E. Rep. 647; 47 N. E. Rep. 8; 37 L. R. A. 384],
    The state treasurer in receiving such deposits acts as trustee. ’ State v. Matthews, 64 Ohio St. 419 [60 N. E. Rep. 605]; Falkenbach v. Patterson, 43 Ohio St. 359 [1 N. E. Rep. 757] ; State v. Investment Co. 64 Ohio St. 283 [60 N. E. Rep. 220] ; Relíe v. Rundel, 103 U. S. 222; State v. Irons, 5 Vroom 464, quoted with approval in State v. Grover, Collector, 37 N. J. L. 174; Detroit v. Lewis, 109 Mich. 155 [66 N. W. Rep. 958; 32 L. R. A. 439] ; Latrobe v. Baltimore, 19 Md. 13; Beech, Trusts & Trustees Sec. 415; Perry, Trusts Sec*. 331; Grant v. Jones, 39 Ohio St. 506; Sommers v. Boyd, 48 Ohio St. 648 [29 N. E. Rep. 497] ; Brown v. Noble, 42 Ohio St. 405; People v. Insurance Co. 29 Cal. 533; Finley v. Philadelphia, 32 Pa. St. 381; People v. Commissioner of Taxes, 23 N. Y. 232; Maltby v. Railway, 55 Pa. St. 140; French v. Bobe, 64 Ohio St. 323 [60 N. E. Rep. 292].

      J. E. Todd and Wade Cushing, for state treasurer.
   SWING, J.

This case is in this court on error to the judgment of the court of common pleas of Hamilton county.

The Interstate Savings Investment Company was a corporation organized under the laws of the state of West Virginia. Its main office and principal place of business was, in fact and by the terms of its incorporation, to be in Cincinnati, Ohio. Under the acts of the legislature of Ohio, passed April 25, 1898, 93 O. L. 401, and April 14, 1900, 94 O. L. 150, this corporation was required to deposit with the treasurer of Ohio certain bonds. These provisions were complied with by the company, and the question now for our consideration is, where these bonds should pay taxes.

It is admitted that under the decision of our Supreme Court these bonds are taxable in Ohio. It is claimed that these bonds should be returned for taxation by the treasurer of state in the county where the safe of the treasurer of the state is, and where these bonds are required to be kept, which is in Franklin county. On the other hand it is claimed that the bonds should pay taxes in Hamilton county, in which coúnty the principal office and main place of business is located. •

The court of common pleas held that the bonds were taxable in Hamilton county.' We think the judgment of the court was right as to this.

We are clearly of the ,opinion that the bonds required by law to be deposited with the treasurer of state, do not in any sense constitute him a trustee or owner in any sense. He has no right or control over these bonds, and not a particle of interest in them either as to principal or interest except as an officer of the state and as the custodian of them. The bonds are the property of the corporation, just as much after they are deposited with the state treasurer as they were before. It is true they may be applied in the payment of the debts of the corporation at the instance of the creditors of the corporation, but this necessarily goes on the principle that the bonds belong to the corporation. The law does not contemplate, in the least, that any kind of ownership or title to these bonds should invest in the treasurer of state. He is simply an officer of the state to keep in the safe used by him as treasurer, these bonds. He cannot keep these bonds any other place. The bonds remained at all times the property of the company, and must be listed by it for taxation, under Sec. 2135 Rev. Stat., at the place where the owner resides. The owner, in this case, is the corporation, and its residence for taxation is Cincinnati, Hamilton county, Ohio. Pelton v. Transportation Co. 37 Ohio St. 450.

The fact that the corporation was ousted from its rights to do business in Ohio did not have the effept to take away its property. The bonds and property belonging to the corporation still remained its property, and was still liable to pay taxes at the same place, as long as any property remained.'

The judgment of the court of common pleas will be modified accordingly.


author: SIBLEY, J.

text:
    MASTER AND SERVANT — CHARGE TO JURY.
    [Hamilton (1st) Circuit Court,
    July 5, 1898.]
    Sibley, Cherrington and Russell, JJ., of the Fourth Circuit, sitting in place of the judges of the First Circuit.
    Memphis & Cincinnati Packet Co. v. Britton.
    1. Master Liable to Servant Injured by Continuing in Dangerous Employment Under Coercion.
    Where a servant in the discharge of his duty finds himself in a perilous position in view of some defect discovered or peculiar danger suddenly apparent to him, and the master, after notice thereof given him by the servant, commands him to go on under such circumstances that the servant reasonably may and does understand that he will be discharged unless he- proceeds, the servant is under coercion, and in such case the master assumes the responsibility for the injuries resulting from a faithful discharge of the duty.
    2. Petition in Action for Injuries to Servant Resulting From Continuing in Dangerous Employment Under Master's Coercion Should Allege, What.
    A petition in an action by a servant against the master for damages resulting in the course of the employment by reason of obeying the commands of the-master to go on with the work, after notice to the latter of its apparent danger and remonstrances of the servant, which fails to allege that the servant believed from the nature of the command and the circumstances under which it was given that a refusal to go on would result in his discharge, is subject ■ to demurrer.
    3. Servant Assumes Risk of Dangerous Employment.
    Where a servant is aware of the danger of the situation, and advances with the work without a promise on the part of the master to supply what is demanded for his security, he assumes the risks of the employment, and any degree of care on his part in its performance will not excuse him.

      4; Not Negligence to Follow General Custom, When.
    It is not negligence for a master to command the servant to go on with his duty in a manner which is the general custom in such work, and of which the servant had notice and had done in the same manner before without injury, unless a peculiar danger arises which is communicated by-the servant to the master and a demand made for the proper precautions to be made for safety.
    5. Master not Liable for Errors of Judgment, When.
    Where the master has furnished a competent foreman, who is conducting thé business in the fair exercise of a capable judgment, and a question arises of opinion merely, the master is not responsible for a simple error of judgment.

      6. Proceeding in Unusual Manner, Question of Negligence for Jury.
    Where a servant, in the performance of his duty, proceeds in a manner and with instruments which are known to him to be unusual in such cases, it is a question for the jury to determine whether the manner of doing the work and using the instruments was the cause of the injury.
    7. Custom not Conclusive When Question of Negligence Arises, but May be Considered.
    That the master followed the usual and ordinary practice of others engaged in the same work, in the performance of which a servant is injured, is not conclusive that it was the proper way to do it, but such custom or practice is proper to be considered by the jury.
    8. Charge of Court Should be With Reference to Testimony.
    Where the vital parts of a case are not merely in what is put in issue by the record, but on questions that arise upon the testimony in connection with the law which applies, it is with reference to the latter that the court should instruct the jury.

      9. Special Instructions Covered in General Charge May be Refused.
    Where the jury has been instructed in a pertinent and adequate form on the law applicable to the case special instructions which have substantially been covered by the general charge, or which are irrelevant, may be refused.
    Johnson & Levy and William H. Jones, for plaintiff in error.
    William Littleford, for defendant in error.
   SIBLEY, J.

(Orally.)

This case comes here by petition in error seeking to reverse the judgment of the trial court.

The primary ground averred is the overruling of the demurrer to the amended petition. Beyond that, error is alleged in respect to interrogatories submitted, but this went out on the hearing, in view of the circumstance that they were not so submitted so as to enable the company to avail itself of what was done with regard to them.

Errors are alleged in respect to charges given and refused; and finally, that the verdict is not sustained bji the evidence.

I take the matters we deem it necessary to consider somewhat in the order stated, at least so far as the first averment is concerned. The case on its facts and circumstances, out of which all the alleged wrongdoing came, relates to a sternwheel steamboat owned by this packet company, and upon- which the defendant in error, plaintiff below, was a fireman. It became part of his duty in that capacity to aid in tightening the stirrups which bound the paddles to the arms of the wheel. The carpenter of the boat was his immediate superior, under whose control such work was done. At the date alleged in the petition he was directed and commanded (it so puts it, although I don’t think that makes any material difference), to proceed in the discharge of his duty. The boat was lying at the wharf. The wheel was held rigid by proper management of the machinery, and he was ordered to go upon it and tighten up the stirrups. That could be done standing on the paddles with some of the stirrups, by reaching to, and simply turning the nuts with a wrench. When it came to the top paddles, as the wheel stood, it was necessary for Britton to stand in on the brac'es and do the tightening. He proceeded to do this work, and in the course of it fell and met with serious injury. The cause of action set out in the petition is predicated upon what was thus done.

The first question is in regard to the mode of setting out the matter in the petition. The facts I have stated about the nature of the employment — the carpenter as his superior; that he commanded him to proceed to this work; that Britton did so, and found the wheel in a condition in which he wished additional support in order to render him more safe, are averred. I will read an allegation at this point:

'‘Said paddles were slippery and covered with green moss, and it was dangerous for a man to stand thereon and work, and of this danger said Reasington (the carpenter, Britton’s immediate superior) knew.” It also alleged that it was his duty to furnish a certain plank called a foot board to be placed on the frame of the wheel for workmen to stand upon, and that he negligently, carelessly, and regardless of the safety of Britton failed to furnish such plank, paid no attention to his remonstrances, and commanded him to go on with the work.

Now, this is sufficient to show that Britton had become aware of the danger of his situation. Hence, under Coal & Car Co. v. Norman, 49 Ohio St. 598 [38 N. E. Rep. 857], he was put in a position where, if he advanced with the work without a promise on the part of the -master to supply what was demanded for his security, he assumed the risks and would be barred of any recovery, it appearing, I say, that he himself saw the danger and understood what it was. Counsel have pleaded with a' view to that case undoubtedly, and they have sought to bring themselves within another category. If making the law, as courts of last resort seem to be doing at times, I would declare it to be this: When a master is apprised of the fact that his servant is placed in a dangerous situation in the course of his employment, and he directs him to proceed, thereby the master should be held to assume the risk, unless it be shown under the circumstances in which he worked, the servant had been guilty of actual negligence contributing to the injury. But this is not the law in Ohio. We are not inclined to hold, however, that Coal & Car Co. v. Norman, supra, excludes the doctrine that where a servant’finds himself in a perilous condition in view of some defect just discovered or peculiar danger suddenly apparent to him, and the master, after notice thereof, commands him to go on under such circumstances that he reasonably may and does understand he must forego his employment or proceed in its execution, the servant is then under coercion; in which event the master assumes the responsibility for ill consequences that may result to the servant from a faithful discharge of his duty. Now, it is with a view to this- class of cases that the averment, as -to Britton’s being commanded to proceed, wa-s made. But the difficulty with the petition, in our estimation, is that it does not go far enough’. It fails to allege what the evidence tends to show, and but for another reason possibly might be regarded as curing; that is, Britton’s understanding from this command and the circumstances, that if he did not proceed he would be discharged. The petition simply says that he proceeded because he was commanded. When he did that, so far as respects the dangers apparent to him, he fell within the rules of the Norman case.

There is this difference between assumption of risk and the ordinary cáse of contributory negligence. When a servant goes forward in the discharge of dangerous duties, under- such circumstances, that in law he assumes the risk, then no matter what his care, he is working at his own peril. The question of carelessness ceases to be important from that time on, so far as the liability of the master is concerned. Whether the servant becomes negligent is wholly immaterial to the result, because with thé utmost care, if he gets hurt, he alone suffers the consequences. On the other hand, in the ordinary case of contributory negligence it must be shown that there was want of care directly contributing to the evil result. We think, then, in view of the fact alleged in the amended petition, that the plaintiff when commanded to go forward, did so; and it not being stated that this was on the understanding and belief, that if he did not so proceed he would be discharged, the averment simply of a command, in other words, does not distinguish this from Coal & Car Co. v. Norman, supra. The court below therefore erred in not sustaining the demurrer t© it. That view, is not, however necessarily decisive here. On the evidence, circumstances appear that would authorize the submission of the question of coercion to the jury if the pleadings had properly presented it; and if there was nothing else in the record upon which to predicate error, we would allow an amendment to be made in conformity with what we presume to have been the finding of the jury in that regard. But as said already, the direction, or command, as it is stated here, to proceed, if obeyed, is not sufficient in itself to place the servant under the protection of the coercion doctrine. It must be shown by the circumstances, and what was said, that unless he went forward he reasonably believed he would lose his place. When that appears, with notice of the defects in the niachiner)’-, or of the special dangers of the situation, the servant may proceed in reliance upon the proposition that the master has assumed the risk; and if in the exercise of proper care, under the circumstances of danger in which he is working,, it won’t lie in the mouth of the master when the servant is hurt, to say that he assumed the risk.

But there is another fact in the case which bars us from relieving the defendant in error, in the view suggested. The proof is overwhelming that the customary mode of doing such work on a boat of this kind, a stern-wheel boat, was to do it without the use of a foot board; that this had been the custom of Britton himself in the employ of this boat, and elsewhere perhaps, during years of river service; and if not universal, it was, to say the least, the general custom in doing that kind of work, standing on the paddles when the work permitted, and on the braces if working at the top paddles, as was being done when this accident occurred. The proof shows, I say, not only that this was the general custom — it was the custom which plaintiff below had followed, the custom this boat had always observed, the mode in which he had done such work previously on the boat; and therefore, as we conceive, in the absence of anything to show that some peculiar and unusually dangerous condition had arisen at the time this work was done, which was brought to the attention of the superior, it charged him with no negligence in directing the servant to proceed in that way. He might have furnished the foot plank as requested, but it seems to be very clear, that if he was proceeding according to the well known and customary mode of doing the work, he was not negligent in refusing it. In that case the servant assumed the risks by entering upon the service. The master was not negligent in requiring him to proceed in accordance with the custom, for the very good reason, that the test of prudence and care, in conducting work, making machinery, or furnishing appliances, is what people generally do who are engaged in such business. That is proof of a prudent and reasonable mode of transacting it, and if the master went no further than to require this of the servant, although accident befell the latter while in the discharge of his duty, equally would it be true that the master was'not in fault. Hence injury would be misfortune to the servant for which no one is responsible. So, I say, this being the state of fact, unless it also appears that there was some peculiar danger which became apparent to the servant and was communicated to the master that laid the basis of a new demand for appliance to insure safety, the servant would be under the operation of the other doctrine as to the customary mode of doing the work, and could not charge the master with responsibility. Now, we don’t think this evidence discloses any such condition. It does not show anything communicated to the superior that was not 'apparently an ordinary incident of employment upon a wheel that had been used — which has on it a little moss and the slime that accumulates from use. This work was done soon after the landing of the boat, when the braces upon which they would usually stand were slippery, and therefore excited apprehension in the mind of Britton that he might fall. He called attention to the fact that it was slippery, and asked for a plank. He was directed to go on. The evidence shows that on second call he was informed if he would be careful he would not get hurt. On the facts disclosed then, there was nothing to take this-case out of the cirstomary mode of doing the work, and therefore nothing upon which negligence of the master can be predicated.

At that point the verdict is not sustained by the evidence.

It is alleged further, that the plaintiff was guilty of contributory negligence. We don’t pass on this as a matter of law. There was enough shown to go to the jury on as to that.

When Britton got to-his top place of the wheel, where it was the ordinary mode to put an arm over the paddle and work with one hand (and here is the pity of it — his whole action evinced a purpose to do his utmost) he found a nut that had become rusted, which could not be turned by one hand. Evidence is in the record tending to show that in such case the usual mode was to call for a mallet and loosen the nut by striking it, so that it could be turned with the wrench. Instead of this, however, Brit-ton let go with the arm he should have used apparently for his protection, and with both hands on the wrench, used so much force as to break it. With the breaking he slipped and fell, the petition avers, in consequence of not having a proper appliance in the way of a safety plank. There is enough in this for a debatable contention at any rate, that the breaking of the wrench, when using it as a substitute for a mallet, and therefore in an extraordinary way, is the cause of the whole trouble. We don’t say this is so as a matter of law — it is a question for the jury.

Charges were given at the request of plaintiff and defendant, and they asked a good many that were not given.

It is always proper for counsel on both sides to cover their case in every possible aspect by instruction. The court may not give them, and is not always bound to do so.

The'general charge goes pretty well over the case, and it is supplemented by special instructions which were actually given.

The first instruction by the plaintiff’s counsel we think is rather misleading. Even if the jury should find that the defendant did follow the usual and ordinary practice of others in doing the kind of work which was being done in this case, it is not conclusive that it was the proper way to do it, and such custom or practice, if any existed, is proper to be considered by the jury; yet the defendant was bound to supply the plaintiff with such materials to do the work, as an ordinary prudent man under such circumstances would use.

Now, if the first clause had been requested alone, there would have been no objection to it. The second clause has no relevancy to this case. It was not a question of supply in view of the indisputable evidence in regard to the custom. The latter clause that the defendant was bound to supply plaintiff with such material to do the work, as an ordinarily prudent man under such circumstances would use, therefore renders it bad.

The third is as follows:

“It is the duty of the master to provide tools and appliances fit for the purpose of the work which he directs the servant to do, and if he could have avoided the injury to the servant by the exercise of ordinary care in providing appliances to do the work, and there is no contributory negligence on the part of the plaintiff, then the defendant is’ responsible for any injury which occurs to the plaintiff by reason of his failing to provide safe appliances.

This is open to the same objection. It has no relevancy when the real rub of the case is taken into account, as it discloses itself, not in the record merely, but on the evidence. Often the turning points of a case, and it is so here, are not merely in what is put in issue by the record, but on questions that arise upon the testimony in connection with the law which applies; and it is with reference to them that the court should instruct the jury.

As stated, special charges first and third, given on behalf of the plaintiff, are bad. We find no ground of exception in anything else, except two charges that we think ought to have been given on behalf of the defendant.

Charge twenty-two:

“If the jury find from the evidence that the general rule or custom has been not to use the foot board when tightening the buckets on the wheel of a sternwheel steamboat, such finding should be fairly considered by the jury as indicative of the general sentiment or opinion of those engaged in the business, that such foot boards are not essential or necessary, and that the omission to use them would not be deemed or understood as negligent.”

Now, that was a pertinent charge on the testimony introduced by the defense in this case. It should have been given, and it was error, we think, to refuse it.

Number twenty-four:

“If the jury find that the carpenter was an experienced and competent person for the position he occupied under defendant, and that when his attention was called to the matter of furnishing foot boards, he duly and fairly considered the matter, and came to the conclusion that in his opinion or judgment foot boards were not necessary, the defendant is not liable for the mistake or error, if one there was, in his opinion or judgment, as to the necessity of such foot boards.”

That simply brings into view the question of a fair exercise of judgment under the circumstances in one aspect of the case, and we think the defendant was entitled to it. When the master has furnished a competent man, and he is conducting business in the fair exercise of a capable judgment, where the question is one of opinion, for instance, as to whether it would be prudent to go on here without foot boards, the master does not become responsible because there was a simple error of judgment in that-regard, as we understand the law.

We don’t take time to go into detail about the other charges refused. The general charge 'with those that were properly given on both sides pretty fully cover the case. Counsel are not allowed -to make up a volume and expect it to be read to the jury, by simply varying the statement of law in application to essentially the same matter. When it is once given in a pertinent and adequate form, the duty of the court in that regard is ended. It may refuse further charges that substantially cover the ground already properly instructed upon. That is the practice as we understand it.

Were it otherwise, where counsel were able on both sides, as they appear to have been in this case, and somewhat prolific in the production of literature in the way of legal instruction, they might compel a court to read to the jury a volume, the end of which would be to confuse rather than instruct it. There is reasonable discretion at this point left to the trial judge, with the exercise of which courts of review will not ordinarily interfere.

On the record as it now stands, then, we hold, first, that there was material error in this case to the prejudice of the plaintiff in error in the fact that the court overruled instead of sustaining the demurrer to the amended petition; secondly, that there was material error in the two charges given on the special request of the plaintiff below to which I have referred, and to which exception was made at the time by the defendant below; thirdly, that there is material error in refusing to give the two charges to which I have referred, specially requested by the defendant below, and which was refused; and fourthly, that on the record as it now stands, the verdict is not sustained by the evidence.


author: JELKE, J.‘

text:
    CONTRACTS.
    [Hamilton (1st) Circuit Court,
    March, 1903.]
    Jelke and Swing, JJ.
    H. Clay Evans, etc. v. Peck-Hammond Co.
    1. Inadequacy of Consideration of Contract Considered in Action at Law.
    The consideration is one of the essential elements of a contract upon which the minds of the parties must meet, and while the question of its adequacy will not he entered into at law, yet its inadequacy is a fact or .circumstance which a court may consider in determining whether the thing claimed to be the consideration was the consideration in contemplation of the parties and by their mutual intent, or is only a mere incident to the contract.
    2. Promise as a Consideration, Must be Mutual.
    A promise is a good consideration for a promise only where there is a perfect mutuality of engagements so that each party may enforce the contract against the other; hence, an agreement by one to furnish castings and an agreement to take them by another, without stipulating the amount, is not binding for want of mutuality.
    3. Construction of Renewal Clause in Contracts Determined From Contract.
    Where a contract contains a clause for renewal from year to year, and before •the end of the first year one of the parties expressly claims the right to renew, and the other explicitly repudiates such right, the rights of the parties must be determined by the court from the subsisting contract, if any, between them.
    4.. Court Cannot Adopt Arbitrary Construction of Contract.
    Although it is the duty of the court to make every effort to sustain rather than to defeat contracts, yet where a contract is indefinite ahd uncertain as to the length of its duration, it is beyond the power of the court to adopt such a construction as would arbitrarily fix a time limit, and which could not have reasonably existed in the minds of the parties.
    Edward Colston and George Hoadly, for plaintiff in error.
    William C. Herron, for defendant in error.
   JELKE, J.‘

There are a number of assignments of error herein, but sifting them discloses that they all hinge upon the validity or invalidity of the contract marked “Exhibit B” and attached to the bill of exceptions, which is as follows:

' “We propose to make for you any and ail gray iron castings which you may order of us of the same class of work as furnaces forty-two, forty-eight and fifty-four, in such mixtures as shall equal in quality, durability and finish standard castings of like kind, thoroughly cleaned, chipped and acceptable to you, for the sum of (1$4C) one and three-quarter cents per pound f. o. b. cars Chattanooga, Tennessee.
“This contract to be in force until January 1, 1901, with privilege of renewal year by year with a readjustment of price on January 1 of each year, increasing or diminishing price of (ljhic) one and three-quarter cents per pound by difference, if any, in cost of pig iron in the general market at the time of said renewal, as compared with the present cost of such iron in the general market, and no change shall be made unless the difference in price of pig iron in the general market is at least ($1.00) one dollar per ton and has existed ninety days prior to said renewal.
“We will invoice castings at an agreed weight, which is to be determined by adding (6) six per cent, to the weight of metal patterns.
“Pattern weights of such castings as are made from wood patterns to be determined by taking average of ten castings from said patterns and deducting six per cent.
“We will furnish flasks, follow boards, and such other appurtenances as are necessary for making first-class castings.
“We agree to begin to deliver castings within thirty days after patterns are received by us.
“We agree to keep patterns insured in such an amount as will replace them, in case of loss or damage, in as good condition as they were before they were lost or damaged.
“You are to furnish us at your convenience, f. o. b. cars at Chattanooga, iron and wood patterns in good condition to make castings from. We agree to inspect said patterns and to return to you said patterns in as good condition, ordinary wear and tear excepted, immediately on your demand, and on our failure to do so hereby authorize you to take possession of same without process of law.
“We also agree to mount radiators, you to furnish steel cut to size for same, fit, paint the fronts, bronze the letters and crate and box ready for shipment any or all apparatus as follows, provided it can be done without loss to us:
“42 inch furnace for sum of $1.50 each.
“48 inch furnace for sum of $1.7'5 each.
“54 inch furnace for sum of $2 each.
“We also agree, if you will keep such things in stock with us, to include in our boxing and crating and' shipping with the above apparatus, such items as castings, casing caps, asbestos cement, paper, poker, check damper, regulators, etc., without extra charge.
“We agree to make and keep in stock one month’s orders thirty days in advance of month for which they are ordered.
“We agree, when orders are received for immediate shipment, to ship out castings which we have on hand, or immediately make up castings to full capacity of patterns and ship until orders are filled.
“Castings on hand for stock orders which are used to fill orders for immediate shipment, will be replaced, if you so desire, as soon as possible, running to full capacity of patterns to do so.
“We agree to store and insure, free of cost, and keep perfectly dry, all castings not used and such other material until such time as they are ordered shipped.
“We agree, if we fail to make and ship your castings in accordance with your orders and specifications as above stated, to pay all loss or damage which you may sustain by reason of such failure on our part, causes beyond our contx-ol excepted.
“We agree to bind ourselves, while making your castings, not to make castings of similar patterns or go into the furnace business on our own account or allow your patterns to be used for any purposes than to> produce such castings as you may order.
“Should we wish, you are to furnish us an expei-ienced superintendent, we to pay his salary and expenses until such time as our superintendent is familiar with mounting the work.
“Settlement to' be made under date of the 10th of each month for all castings delivered during previous month, by giving a 90 day note or pay cash deducting two per cent.
“Castings made up and ready for shipment on orders from you are to be included in each month’s settlement.
“The rendering of bill for stock unshipped and the accepting of settlement for said unshipped stock, is hereby acknowledged a warehouse receipt, and such stock is hereby acknowledged to be your property, and shipment of same when ordered is to be made by us without expense to you.
“Above proposition to be accepted on or before June 1, 1900.
“Chattanooga Car & Foundry Co.
“J. E. Evans, Manager.”

When we have determined this, answers to all other questions in the case are but corollaries to such determination.

Couned for plaintiff in error contend that all provision in said contract bejmnd and after the first year, that is after January 1, 1901, is void and ®f no effect for two reasons: First, for want of mutuality or consideration; and second, for indefiniteness and uncertainty.

After elaborate argument and exhaustive briefs by learned counsel on both sides of this case it is revealed, as it so frequently is, that the several propositions of law contended for are all sound; so that the real problem is to work out the correct result in the light of these legal prin- . ciples .from the writing and the facts and circumstances surrounding the parties.

Counsel for plaintiff in error start with the proposition that a promise is a good consideration for a promise only where there is a perfect mutuality of engagements so that each party may enforce the contract against the other, and that since the Peck-Hammond Company does not engage to take a stipulated amount of castings, or all or any castings used by them from H. Clay Evans, the promise made by H. Clay Evans to furnish castings is not binding for want of such mutuality.

Counsel for defendant in error says that the proposition of law in the abstract is true, but does not apply to this case because the Peck-Hammond Company does not rely on any engagement of that kind on its part as a consideration for the promise of H. Clay Evans which it is seeking here to enforce.

Counsel for defendant in error contends that, by its executed undertaking to furnish H. Clay Evans f. o. b. cars Chattanooga iron and wood patterns in good condition to make castings from, and to furnish an experienced superintendent, the Peck-Hammond Company bought and paid for an option which was thereafter exercisable at the pleasure of the Peck-Hammond Company. Counsel say that was the contract, and that the adequacy of such consideration cannot be inquired into in this court of law.

“If the promisee give anything for the promise in excess of what he is legally obligated to give, whether such a return by a counter-promise upon the part of the promisee or an act done by him, the promise is binding upon the promisor, and it makes no difference whether the counter-promise or act given or done by the promisee be adequate or not,” is a sound proposition at law and is supported by abundant authority. But this to a certain extent begs the first inquiry as to whether there was a consideration at all or not.

Adequacy or inadequacy is not determinative, but inadequacy is a fact or circumstance, like any of the many surrounding circumstances, which enables the court to find whether the thing claimed to be the consideration was a consideration or the consideration in contemplation of the parties and by their mutual intent. Of course there is no more essential element upon which the minds of the parties to a contract'must meet than the consideration, and one thing cannot be the consideration in the mind of one and another thing in the mind of the other.

This then brings us to the question: Was this furnishing of patterns and a superintendent the ¿.consideration in a contract of option in the contemplation of the parties ?

This is the stand taken on this branch of the case by counsel for defendant in error, and if such is not the consideration, the contract must fail. He says truly and fairly “a privilege of renewal subsisting to both parties to a contract would be a manifest absurdity.”

After careful deliberation we are of opinion that such was not the nature of the contract. The furnishing of the patterns and a superintendent was but an incident, a working detail of the fixed and certain part of the contract and such renewals thereof as the parties might thereafter agree upon. It defined and described the subject matter of the contract. We do not think that this provision over and above the part it played in defining the subject matter in the fixed contract, ever was thought of by the parties as furnishing a consideration for a contract of future option. In fact, after warm debate, this idea only came to the mind of faithful and astute counsel in the exigencies of argument.

We now come to the second infirmity charged against this contract: That the provision for1 renewal is void for indefiniteness and uncertainty in that there is no limit fixed to such renewals.

Full deference must be paid to the many high authorities cited by counsel for defendant in error pointing out that it is our duty to make every effort to sustain rather than to defeat contracts and id facere cerium quod certum reddi potest. On this question counsel for defendant in error has taken his stand with frankness and courage where he says in his brief:

“The contract is therefore unlimited in its final duration except by the legal and practical continuance in business of the parties thereto. If either of the parties should die or cease doing business, or should go into bankruptcy or shall for any reason bona tide cease the business he or it is engaged in, the contract would thereby come to an. end. While the parties, however, continue in business and are in 'position to carry out the terms of the contract, the contract will continue from year to year, the price being adjusted each year as before set forth.”

This is the only limit counsel can find in the writing, in the evidence and in the circumstances of the parties.

Reflection will show that such was not the limit in contemplation of the parties fixed in the contract by intention, when it is observed that it is the limit which exists ex necessitate to all earthly possibility. It is the limit fixed not by the parties, but by the Lord upon all human engagements. It exists without contract, notwithstanding contract, and in,spite of contract.

■ Such a construction would mean that this contract, by the annual exercise of an option by one of the parties, is to go on until it can’t go' on any more. We do not believe the parties intended this, and we do not know and cannot find out what intention, if any, the parties had in this regard.

Counsel has called our attention to the class of cases where railroads have employed persons in settlement of claims for personal injuries in which there has been no limit in the contract of employment, but the courts have nevertheless fixed a reasonable limit and sustained the contracts. In those cases one of the very essentials of the contract is the estimated diminution of the employe’s earning capacity for the rest of his life. It is a compensation substituted by contract for the measure of damages, so that by an annuity the diminished earning capacity is made whole for the balance of claimant’s working life.

Nobody can believe that two strong commercial organizations, between which existed no obligation, dealing as to a commodity in the open market, had -any such limit in their minds. It is too unusual to be lightly supplied by us in the absence of express agreement or indicia pointing clearly to such agreement. We feel it would be making a contract for the parties which they themselves have, not made. The same difference exists between such cases as Carnig v. Carr, 167 Mass. 544 [46 N. E. Rep. 117; 35 L. R. A. 512], where there was a contract for permanent employment, and the case at bar.

We do not find the law cited by counsel relative to tenancies of land from year to year helpful for this reason, that there are and always have been conditions pertaining to the soil which have controlled the making of term contracts as to land — that is, leases — and these have so invariably been circumstances of the making of the contract that tlrey have grown into the body of the law on that subject and hence it is not safe analogy to apply those principles to free contracts.

Further, there has been nothing like a holding over here where in the absence of an express agreement the law implies in fact a contract between the parties.

Before the first year was out the attitude of both parties was clearly defined on the subject of renewal, one expressly claiming the right to renew, and the other with equal explicitness repudiating such right; so that such right must be determined from their subsisting contract, if any.

So, as to the cases cited of holding over contracts of employment. No case is found in which an employer is held bound where, contrary to express notification in ample time -before the end of the term of employment, an employe persists in coming around after the termination of the employment and in trying to go to work despite his discharge.

We understand that counsel for defendant in error has abandoned his claim that there was some right or advantage gained by one party speaking or exercising his option first during the year 1890-1891, when he said that a privilege of renewal to both parties would be absurd. At all events, we are of opinion that such a thing cannot be. The judgment below should have been for the plaintiff.

Judgment reversed.