text:
    ELECTIONS.
    [Cuyahoga (8th) Court of Appeals,
    June 4, 1917.]
    Chittenden, Richards and Kinkade, JJ., of the sixth district sitting by designation.
    Alva R. Dittrick v. Frank T. Andrews et al.

      Presumption of Regularity of Election Results Declared by Supervisors and Inspectors, not Set Aside Unless Evidence Shows Gross Irregularities.
    When the official count of an election has been made and declared by the board of deputy state supervisors and inspectors of elections, the result is attended with a presumption of regularity that should not be set aside except upon evidence which fairly shows such uniformity of error in such a large percentage of the voting precincts involved as reasonably leads the court to the conclusion that like errors probably have occurred in the precincts from which no evidence is produced, and to such extent as, taking into account the neutralizing effect of similar errors on the opposing ticket, which, in the absence of evidence the court may assume if no fraud is claimed or shown, would probably change the result of the election.
    [Syllabus by the court.]
    Error.

      Bernsteen Bernsteen, for plaintiff in error.

      Pierce D. Metzger, for defendants in error.
   CHITTENDEN, J.

At the election held on November 7, 1916, the democratic candidates for county commissioners, Frank T. Andrews, Joseph Manning and James T. Kelly, were declared duly elected by the board of deputy state supervisors and inspectors of elections. Thereupon the republican candidates, Fred H. Kohler, Alva R. Dittrick and John A. MacDonald, appealed from the decision of the board of deputy state supervisors and inspectors of elections to the court of common pleas as provided by statute, and served the necessary notices of contest. This resulted in nine election contests in the court of common pleas and these contest cases were consolidated and all proceeded under cause number 153105 entitled Alva R. Dittrick v. James T. Kelly. Testimony was taken before .justices of the peace and the cause came on for trial in the court of common pleas, resulting in a finding in favor of the contestees and a dismissal of the appeal at the costs of the contestants. To this judgment error is prosecuted iu this court.

The evidence shows that Cuyahoga county had 576 or 57S voting precincts; that at the election in question 133,483 ballots were cast. The deputy state supervisors and inspectors of elections, upon the official count of the ballots, found that 71,533 ballots had been cast in favor of Woodrow Wilson, democratic candidate for president, and 51,287 ballots in favor of Charles E. Hughes, republican candidate for president. The remainder of the ballots were cast in favor of minor candidates for the office of president. The declared result of the election for the office of county commissioners was as follows:

For the “Republican candidates:
Fred Kohler.............. 56,574 votes
Alva R. Dittricb.......... 56,609 votes
John A. MacDonald.......55,414 votes
For the Democratic candidates:
Frank T. Andrews........ 63,471 votes
'Joseph Menning.......... 61,314 votes
James T. Kelly...........59,131 votes

It is not claimed by the contestants that there was any fraud in the conduct of the election or in the counting of the ballots. It is their earnest contention, however, that there were mistakes and errors made in the counting of the ballots and that if all the ballots had been correctly counted the result would have been shown to be the election of the republican candidates for county commissioners instead of the democratic candidates.

The contestants called 75 witnesses who testified as to errors said to have been committed in 75 different precincts, and the total number of ballots about which they testified as having been erroneously counted was approximately 1200. These precincts are said to be distributed generally throughout the city and one or two precincts from each end of the county outside of the city, and that the testimony indicates that errors in the method of counting were being made generally throughout the county, and that if the same ratio of errors was made throughout the county the announced result of the election would of necessity be changed. The mistakes claimed ranged themselves into several classes. The evidence does not show that the same class of mistakes was uniform in all precincts. In some precincts the testimony shows that a given class of claimed errors appeared; that in other precincts another class of errors prevailed; and that in some precincts perhaps errors of each class were testified to.

At the conclusion of the evidence counsel for the contestants moved the court to make an order requiring that all the ballots cast in the county be opened. After argument the court declined to make such an order and dismissed the appeal as above stated. The motion of the contestants was based upon the provisions of Sec. 5090-1 Gr. C., 106 O. L. 209. This section of the general code makes provision for the preservation of all ballots for a period of thirty days after the election and for their destruction at the expiration of that time unless there shall be a contest of the election pending at the expiration of the.thirty day period. The section reads in part as follows:

“Provided that if any contest of election shall be pending, at the expiration of said time the said ballots shall not be destroyed until such contest is finally determined. In all cases of contested elections, the parties contesting the same shall have the right, after a prima facie• ease of fraud, mistake or error is shown, to have said ballots opened and to have all errors made in counting corrected by the court or body trying such contest; but such ballots shall be opened only in open court or in open session of such body and in the presence of the officers having the custody thereof.”

The real question to be determined in this proceeding is whether the court erred in finding, from the evidence submitted to it, that the contestants had failed to make a prima facie case of mistake or error which would warrant an order to have all the ballots cast in the county opened and recounted.

It may be well to examine the original See. 5090-1 G-. C., which was amended by 103 O. L. 265, the act above cited. The original act provided that “in all eases of contested elections the party contesting the same shall have the right to have the ballots opened and to have all errors in counting corrected by the court,” etc. It was claimed that the original section gave the right to contestants to have all the ballots opened and counted in case of contest.

The correct construction of the act was presented in an election contest case in Jefferson county. That ease found its way to the Supreme Court, Tarr v. Priest, 93 Ohio St. 199. The court, of common pleas had ordered that only the ballots in the two precincts to which evidence of error had been directed should be opened, and refused to order the ballots in the remaining precincts to be opened for the reason that no evidence had been introduced tending to show mistakes or errors as to those precincts. The court of appeals reversed this judgment of the court of common pleas and remanded the case to the court of common pleas with an order to recount all of the ballots in each precinct of the county. While the case was pending in the Supreme Court the. amendment found in 106 O. L. above cited, was passed. Thereafter the Supreme Court in deciding the case of Tarr v. Priest, reversed the court of appeals and affirmed the judgment of the court of common pleas. In the course of the opinion the following language was used:

“We do not think it was the intention of the legislature, in the enactment of the provision of See. 5090-1 which we have quoted, that the ballots should be used as original evidence for the purpose of discovering errors. Assuming that the grounds of contest set out in the notice of appeal were stated with sufficient definiteness, if, upon the trial before the court, there had been evidence tending to show that errors had been committed in any precinct the court was with authority to order a recount of the ballots in that precinct and have such errors as might be found corrected. In the absence of such evidence the court was without authority to act. ■ We conclude, therefore, that the court of common pleas was correct in its refusal to order the ballots in the precincts other than Warren and Toronto No. 1 opened and recounted.”

It will be observed that the Supreme Court said that if upon the trial there had been evidence tending to show that errors had been committed in any other precinct that would furnish authority to the court to order a recount of the ballots in that precinct, but that in the absence of such evidence the court would be without authority to order a recount.

The question then is, does this record disclose evidence tending to show that errors were committed in any other precincts than the seventy-five precincts concerning which witnesses testified? It is to be remembered that the court of appeals is not sitting as a trial court but only as a reviewing court, and that before a judgment of the trial court will be reversed the plaintiff in error must make manifest error in the proceedings prejudicial to his rights. The duty rested upon the trial court to pass upon the credibility of the witnesses and weigh the evidence under the well known and well settled rules of law. That court stated that much of the evidence adduced was, in its judgment, entitled to little if any credit.

During the course of argument before this court considerable criticism was passed upon the method employed in ascertaining what the witnesses for the contestants would testify to, and it was intimated that their testimony was in accordance with suggestions made at these interviews. We are not much impressed with the force of that argument. It is the duty of counsel in any lawsuit to ascertain what the witnesses know and will testify to upon the witness stand, and in the matter of an election contest where a large number of witnesses are to be examined it may be that the most practical method of ascertaining what their testimony will be is to exhibit sample ballots and either have the witnesses indicate upon those ballots what the marking was upon the original ballot, or inquire, as was done in this case, whether certain marks shown upon the sample ballots were seen at. the time of the counting, and, if so, how they were counted. It is true that this method might easily be subject to abuse. However, it is apparent that these witnesses very generally were called upon to give their recollection some time after the ballots were counted and it does not appear that they had kept any written record of what was observed by them, and it is self-evident that their recollection would not be very accurate. Other facts appear which bore upon the weight to be given the testimony of the several witnesses and which the trial court might very properly take into consideration in determining the weight to which it was entitled in passing upon the issues presented.

It does appear from the evidence that these mistakes, whatever they were, were a result of the judgment of the election officials in the voting booths as to how ballots marked in a given way should be counted; and, while the inquiry was not pursued, it does appear that mistakes of the kind claimed appeared upon the republican ticket as well as upon the democratic ticket. There is an entire lack of evidence, however, as to the extent of those mistakes. A fair inference, perhaps, would be that such mistakes were in about the same proportion upon both tickets. Plaintiff in error, however, earnestly contends that mistakes of a like character upon the other ballots are not material in a contest of this character. That it is only necessary for the contestants to show mistakes upon the democratic ballots that would indicate a change in the result, and that it was not incumbent upon them to show, nor, indeed, was it proper to be determined by the court whether similar mistakes were made upon the republican ballots which might neutralize the result, claimed by them, — at least to a very large extent. In the absence of evidence, and no fraud being claimed, the court is justified in assuming that like errors in the same proportion existed in the other ticket..

The number of precincts involved in the inquiry was approximately one-eighth of the total number of precincts, and the court is required by the claims of plaintiff in error to assume that the errors shown in the one precinct likewise appear in the remaining seven precincts about which no evidence at all is presented, or, in other words, that if errors appeared in seventy-five precincts, that it a prima facie showing that similar errors occurred in the five hundred or more precincts concerning which no evidence was introduced. But if the assumption of the plain-, tiff in error be correct that errors of the kind testified to appear in the remaining five hundred precincts, in the absence of testimony to the- contrary, and in the absence of any fraud, we think-the court would be justified in assuming that similar errors upon the opposing ticket, in the ballot and the counting, would likewise appear throughout the remaining five hundred precincts. We think this contention of the contestors is carrying the doctrine of presumptions to an unwarranted length, and would be extending the decision in Tarr v. Priest beyond any limits indicated by the language of that decision.

It is true that the right of franchise is perhaps the most valuable privilege of citizenship. Every citizen is entitled to the free and untrammeled right to cast his ballot as he desires and to have that ballot counted as cast.- The state of Ohio, in order to preserve to its citizens, this inestimable right, has provided a system of voting and of counting the votes calculated to effect in every respect the purity of the ballot. Bi-partisan boards of judges and clerks are placed in every voting booth; facilities are afforded for authorized witnesses to observe the counting of the ballots, and as a result the action of the board of deputy state supervisors and inspectors of elections, when the official count has been made and declared, is attended with a presumption of regularity that is and should be as strong as the similar presumption attaching to the action of other administrative boards. We think it would be unwise to permit that presumption to be set aside except upon evidence which fairly shows such uniformity of error in a very large percentage of the voting precincts involved as reasonably leads the court to the conclusion that like errors probably have occurred in the precincts from which no evidence is produced, and to such an extent as, taking into account the neutralizing effect of similar errors on the opposing ticket which in the absence of evidence the court may assume if no fraud is claimed or shown, would probably change the result of the election.

It is not claimed that the errors pointed out are the result of general instructions given to the judges and clerks of election in voting precincts by the county board or by the state officials. If such were shown to be the case a presumption would arise that such instructions had been followed and that like errors would be found in every precinct; but the presumption of errors resulting from instructions of that kind would be made very strong by proof of the giving of snch instructions. If the rule announced in the case of Tarr v. Priest, supra, were applied and the ballots in the seventy-five precincts were recounted it is evident that the result could not be changed, even if full force is given to all that is claimed by the contestants. There would therefore be no reason whatever for incurring the expense and loss of time necessary for a. recount of the ballots in these precincts.

"We have not deemed it necessary to discuss the claimed errors in the method of counting in view of the conclusion at which we have arrived. Some of the methods were clearly erroneous. This much may be said in general upon the question, of counting ballots in Ohio. While various provisions prevail in the statutes of the several states, no state has gone farther to preserve to its citizens the right to express their choice by ballot and have that choice properly counted, than has the state of Ohio. Section 5070, R. G. C., paragraph nine, reads:

“No ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice. ”

It will be noted that this paragraph is not a direction that the ballot shall be counted if the intention of the voter can be reasonably ascertained, but it is a positive prohibition against rejecting any ballot for any technical error unless such error makes it impossible to determine the voter’s choice. This provision of our law is in recognition of the fact that we have no literacy test for the .franchise in this state and that citizens of all degrees of education and intelligence are expected to exercise this right of franchise.

Upon a careful examination of the entire record in this case we come to the conclusion that the trial court was not in error in declining to direct a recount of all the ballots east in the county.

Kinkade and Richards, JJ., concur.


source: Caselaw Access Project

author: GRANT, J. Lieghley, J.,

license: Public Domain

text:
    COURTS — DISBARMENT.
    [Cuyahoga (8th) Court of Appeals,
    August, 1917.]
    Carpenter, Grant and Leighley, JJ.
    In re Edward P. Strong.
    1. Court of Appeals has Inherent Power Only In Disbarment Proceedings and is without Power to Prevent Practice in Other Courts.
    No jurisdiction in disbarment proceedings has been conferred by the constitution upon the courts of appeals, and the attempt of the general assembly to confer such jurisdiction in Sec. 1707 G. C., being without authority and ineffectual, these courts must rely in such matters upon the inherent power which it Is their right to exercise without the aid of formal law; but a penalty of disbarment or suspension from practice must be limited in its application to the court in which it is pronounced.
    2. Attorney Permitting . Use of Office as Clearing House for Strike Grafting Settlement Suspended.
    An attorney at law who, with knowledge, permits a client to use his law office as a clearing house for a grafting settlement of a workingman’s strike is guilty of misconduct which warrants a penalty of suspension from practice for one year.
    [Syllabus approved by the court.]
    W. II. Boycl, for defendant.
   GRANT, J.

Our attention having been directed to an accusation of alleged misconduct in office by Edward P. Strong, an admitted attorney at law practicing in this court, thereupon we apX>ointed a committee to proceed in tbe matter of snob accusation in such way as they might be advised.

Whereupon the managers so appointed exhibited in court a charge against the respondent, alleging, as they said, the misconduct mentioned, involving, as was alleged, moral turpitude, embodying four specifications, together with the evidence taken to substantiate the accusation.

Upon hearing and argument, specifications 1 and 3 were abandoned, and numbers 2 and 4 alone were relied on.

Specification two is of the following tenor and effect, viz:

One Smith was the so-called “business agent” of a labor organization called tbe Building Trades Council of tbe city of Cleveland. A strike was called on or against the Gaylord W. Feaga Company, which Smith undertook to call off; and he demanded and received, as a consideration and condition of his service in so ending the strike — corruptly and wrongfully, as was said — the sum of $3,500. The respondent, Strong, received for himself no part of the money; but he was, and acted as, the attorney of Smith in the transaction, which was negotiated and consummated in and through his office and with his knowledge. His law office appears to have been a sort of clearing-house for the grafting operation.

Specification 4 is of a like effect, except that the sum paid was $5,000, was made to Smith and one Owens, and the payer was the Artificial Silk Mills Company.

The material facts, substantially as we have in brief form stated them, are not in dispute.

The respondent filed no written answer to the accusation exhibited against him, but was heard by counsel orally at the bar.

What he has to say, as we understand it, is that, the facts being conceded, still his conduct was not what is claimed for it by the manager's, in legal quality and effect: his defense amounts, perhaps, to what in some jurisdictions is known as a plea of noli contendere — putting the matter up to the court, to be dealt with in result.

The proceeding is prosecuted under the supposed authority of See. 1707 of the G. C., which purports to confer on this court jurisdiction to forbid the accused to practice law in all of the courts of the state, if found guilty of either misconduct in his office of an attorney, or unprofessional conduct involving moral turpitude.

In the view we have concluded to take of this case, it is not very material, we think, to find, specifically, under which of these two separate grounds the delinquency of the respondent falls. If it were thought material, my own inclination would be that the former is made out by the evidence, and not the latter.

Before proceeding to the consequent step of meting out the adequate penalty to be annexed to the repondent’s breach of duty as an officer of the courts of Ohio — including this court— we have thought it fit to examine, with some care, the basis of our power to act in the matter at all, and the source and extent of the jurisdiction of this court in this proceeding. The question was not raised in argument, but it is in the case — to a considerable degree decisively — and we must deal with it accordingly.

Before the adoption o£ the amended constitution of 1912, the general assembly of Ohio had large discretionary powers to confer jurisdiction upon the courts of the state, including the predecessor of this court. But since that constitution became effective, the former legislative source of jurisdiction as to this court is cut off and wholly denied. To find what the jurisdiction of this court is, in any case, one must go behind the statutes and look to the constitution itself. If he does not find warrant for it there, conclusively it does not exist.

This is not only apparent from a reading of the amended. constitution, but that such is the construction is now expressly • settled by adjudication of the Supreme Court in Cincinnati Polyclinic v Balch, 92 Ohio St. 415 [111 N. E. 159]. It is there said:

“This amended section of the constitution does not authorize the legislature to grant any jurisdiction, original or appellate, to the courts of appeals.”

The statute, therefore, which is relied on to direct us to give judgment in this case, is altogether inert and without power to do so. That the legislature thought it might with propriety confer the jurisdiction now sought to be exercised, is of course true; for Sec. 1707, in its present form,-was enacted after the present constitution became operative, and it names courts of appeals in express terms as agencies for working a disbarment in any proper case. But it is equally true that reputable lawyers of long experience have constantly to be admonished to quit looking at statutes, and to look alone to the constitution as the source of all jurisdiction of this court, and as to how far in any case it extends. In this very proceeding a possible want of power on our part to determine the matter seems not to have occurred to the able counsel on either side; for no such infirmity is suggested.

Observing this admonition ourselves, and finding in Sec. 1707 no warrant for the jurisdiction invoked here, let us, too, turn to the constitution for guidance. We shall fare no better there.

That the jurisdiction* called in function is appellate, is, of course, not claimed. We are asked to act in this proceeding strictly as a court of first instance. The grants to this court, by the constitution of original powers in this respect are specific and enumerated. They are limited to the allowing of appropriate writs necessary to exercise a superintending control over inferior jurisdictions, namely, mandamus, quo warranto, procedendo and prohibition and the great writ of habeas corpus.

We derive no power to proceed to judgment in this case from the constitution.

Clothed, then, with no authority to act from either constitution or statute, have we any by unwritten law? 'Do we have, and may we upon proper occasion assert, an inherent power, residing at all times in gremio legis, in thé breast of the court as such, and ready to come forth and administer the appropriate sanction annexed to its inherent existence?

The answer to this inquiry calls for an historical examination of the subject.

At common law, courts had no power to admit practitioners at their bars. They were called to that function by the Inns-of Court, which were mere associations or guilds; and the right seems to have depended a good deal on the number of meals eaten at commons.

It was not. so, however, in regard to control of attorneys after admission. It seems that from very early times the courts by common law exercised full jurisdiction over them, even before there was such a thing as a roll of attorneys'; for the roll was introduced by 4 Hen. IV., ch. 18; the language of the act in that respect is “that all attorneys shall be examined by the justices, and by their discretion their names shall be put upon the roll." The fourth Harry began to reign in 1399.

Before that, by the Statute of Westminster, 3 Ed. 1, ch. 29, it was provided, “that if any sergeant, counter, or other, do any matter of deceit or collusion in the King’s Court, or consent to it, to deceive or entrap the court or one of the parties, he shall be no more heard in the court to plead for any one. ’ ’

It is said of this statute by Lord Coke, 2 Inst. 213, that as the prohibited practices “were against the common law, therefore this act was made in affirmance of the common law.”

Edward I came to the throne in 1272, so that the statutory affirmance of a power declared to have been already in existence at common law must have antedated the first statutory recognition of attorneys as a class by at least a century and a quarter. Anciently it existed over counsellors as well as attorneys: it is so stated in Hawkins, Pleas of the Crown, 461, and in Reeves’s History, Vol. 2, 126. And the control by the courts wherein they practiced over both was summary. Hawkins, P. C. 369. In Joseph S. Bradley, Ex parte, Justice Nelson says: “We do not doubt the power of the court to punish attorneys for misbehavior in the practice of the profession. This power has been exercised and recognized ever since the organization of courts.” And this he said in a case involving disbarment in the judgment awarded.

To say that the power existed at common law is to say that in those early times, at least, it was inherent in the court of common law. It was an asserted and not aderived jurisdiction, to be invoked and exercised as to the apprehension of the courts the occasion might call it forth.

Let us now see whether it has been continued since those times and down to our own.

We have examined many authorities to find a reasonably settled answer to this inquiry. Perhaps the most satisfactory of these in exhibiting what the present state of the law is, and its continuity in unimpaired vigor from the older days, is Danforth v. Egan, 23 S. Dak. 43 [119 N. W. 1021; 139 Am. St. Rep. 1030; 20 Ann. Cas. 418], The repondent in that case had been disbarred by judgment of the Supreme Court of his state; and, while that judgment was. still effectual, he was elected by the people prosecuting attorney for his county. His claim was, that he might in that capacity still appear and practice in the courts. Upon this state of facts the court observes as follows:

“Did the framers of the constitution intend to indirectly take from the courts, in favor of a certain excepted class of person, a right which the statutes of the territory had recognized as resting in the courts; a right recognized for centuries, by all countries and states having laws based on the English common law, as the inherent right of the court; a right necessary in the very nature of courts and the duties devolving upon them; a right which, if lost, would soon bring the courts of our land into contempt; the right to say who as attorneys shall be recognized as officers of the courts, together with the right to expel such persons whenever they have been adjudged- unworthy or unfit for this important trust? This right of the courts is as much the law of our land, and of as much dignity as such, as any law found in the constitution or statutes. It is not dependent upon either the constitution or the statutes for its existence, but exists fully in all courts of record, unless expressly restricted or taken away by express legislation; and it is a serious question whether it lies within the power of the legislature to do more than regulate this right of the court, whether the legislature can more than prescribe certain qualifications for admission, leaving to the proper court to fix others if it sees fit, and whether the legislature can more than fix certain grounds for disbarment, leaving to the court to disbar for other reasons within sound judicial discretion. 3 Am. and Eng. Ency. Law, pp. 287, 300, 301; 4Cyc., 900.”

Among the cases which sustain this view we have found the following: Goodrich, In re, 79 Ill. 148; Penobscot Bar v. Kimble, 64 Me. 140; Martin, In re, 6 Beav. 237; Trippe, Ex parte, 66 Ind. 531; Steinman, Ex parte, 95 Pa. St. 220 [4 Am. Rep. 637]; People v. Green, 7 Colo. 237 [3 Pac. Rep. 65; 49 Am. Rep. 351]; Serfass’ Case, 116 Pa. St. 455 [9 Atl. 674]; Manning v. French, 149 Mass. 391 [21 N. E. 945; 4 L. R. A. 339]; Davies, In re, 93 Pa. St. 116; State v. McClaugherty, 33 W. Va. 250 [10 S. E. 808; 6 L. R. A. 740]; Cole, Ex parte, v McCrary, 405; Wall’s Case, 107 U. S. 265 [2 S. Ct. Rep. 569; 27 L. Ed. 552].

Weeks, Attorneys at Law, 154, sums up what he conceives to be the result of the authorities on the subject, thus:

“The power to strike from the rolls is inherent in the court itself. No statute or rule is necessary to authorize the punishment in proper eases. * * * It is necessary for the protection of the court, the proper administration of justice, the dignity and purity of the profession, and for the public good and the protection of clients. ’ ’

We conclude, upon this point, that we have jurisdiction of the subject brought before us in the proceeding, inherent in our court, and not needing the aid of any written or formal law to call it forth and set it in motion towards such mode or measure of redress or remedy as may commend itself to a fit discretion in our exercise of the power so existing.

The present constitution of Ohio, as interpreted in Polyclinc v. Balch, supra, allows the legislature to provide by law for the procedure of the courts in pursuing the jurisdiction conferred by that instrument. And, while it is to be supposed, certainly, that any court having an offended dignity to vindicate, or a morality to safeguard, may furnish its own procedure to that end, we consider the manner adopted by the managers in this proceeding to bring the matter of it to our judicial attention as altogether proper and acceptable.

Having found, so far, that we have jurisdiction, and that its exercise is adequately challenged, we are next to consider to what it extends.

Section 1707, supra, undertakes to give us the power to prohibit the respondent from practicing as an attorney in all the courts of the state; and such is the prayer of the managers. But that is upon the theory that we are to find our jurisdiction in the statute, and not in the constitution of the court, and the inherent necessity of finding it there, which we do not.

Finding, as we do, that a jurisdiction — a power to hear and determine — resides in the breast of our own court, we are asked to spread it over all courts, reaching upward to the Supreme Court and down to all inferior tribunals, for the purpose, and prescribing for them pains and penalties to be visited upon one who in their estimation may never have offended them, or invaded their own strongholds of morality and dignity. In general it may be observed that a court will do well if it undertakes to preserve its own purity against its own officers, and protect its own litigants from being plundered by its own servants; and that its embarking in a career of general uplift, scouring other courts for the purpose, would be a mere impertinence, not to be attempted by the one or tolerated by the others.

The exact question was before the court in. State v. Kirke, 12 Fla. 278, in which the whole matter is luminously discussed.

The syllabus in that respect is:

‘ ‘ The county courts of this state have the power to disbar an attorney and to deny him the rights of an officer of that court, but their judgment can not extend beyond a denial of the privileges of an attorney in that court. It does not directly affect his rights in other courts. ’ ’

The power thus allowed to reside in the court was an inherent or asserted power — the same as the only power we admit this court has — and not a power created by positive law.

The same result seems to have been reached in a converse manner by the Supreme Court of the United States in Tillinghast, In re, 29 U. S. 21. In that case the applicant for ad mission to practice in that court had been disbarred by the district court of the United States in his own state (and the record so showed), as for a contempt. Nevertheless, he was admitted, Chief Justice Marshall intimating that one court should not interfere with another in that respect.

To an extent that has, as we think, considerable significance, this part of our inquiry has been dealt with by the Ohio courts. In Thatcher, In re, 83 Ohio St. 246 [93 N. E. 895; 22 Ann. Cas. 810], the respondent had entered against him a judgment which had the effect of prohibiting him from practicing as an attorney in all the court of the state. In looseness of language he was said to be “disbarred;” and so, in point of resulting fact, undoubtedly he was. But the question of the form of that judgment we shall deal with presently.

While this judgment amounting to a prohibition of Thatcher was in force, the legislature undertook to interfere by passing a statute reinstating him in practice, or to that purport. The statute amounted to an attempted legislative reversal of a Supreme Court judgment. In State v. Brough, 33 O. C. C. (15 N. S. 97), the circuit court for the Toledo district discussed the effect of the Supreme Court judgment upon him as a practitioner in courts of tlie state inferior to that court. The circuit court found, as we have found, that the power of the Supreme Court to sit in judgment on Thatcher was inherent, and not derivative from an outside source; and reached the conclusion that the judgment operated to exclude him from practice in all the Ohio courts. But this operative result, outside of the Supreme Court, was allowed only because of, and was deduced from, the form the judgment ivas made to take in the entry in the journal. The not very short opinion in the ease winds up, in true Spartan brevity, with the one word “Disbarred.” But the syllabus says — followed in that respect in the record — that Thatcher’s name is “stricken from the roll” of attorneys admitted and competent to practice in the state. The circuit court remarks that there is but one such roll, and that is in the exclusive control of the Supreme Court; and adds that it, the circuit court, had no such roll. Nor have we. In the hands of the only court which did have the roll at its disposal, manifestly the effect on the attorney of striking his name from it made a private man of him, and operated to keep him outside the bar; that is, the only bar we are talking about. But a roll of attorneys is evidence of admission and of nothing else. Admission to the roll is statutory, as we have seen. The power to disbar is of common law origin and jurisdiction, as we also have seen. And, while the physical act of striking from the roll may work the effect of a disquafi cation to practice, that result is not inherent in the courts, because the mere possession of the roll, physically, is not of common law source or authority.

It would, we think, take more assurance than we have on hand for us to order Mr. Strong’s name taken from a paper which is in the sole possession of the only body which had a right to put it there in the first place, or to keep it there now. We are obligated to watch the virtue of our own court. We aspire not to guard that of others.

We are led-to conclude, therefore, that our power in the matter before us extends only to the status of the respondent in this court.

Having already intimated our opinion as to his guilt under the charge-exhibited by the managers, the only duty that remains for us to discharge is to declare the mode and measure of redress to which litigants in this court are entitled in this case.

We have no desire to comment particularly on the circumstances. What is expected of us in this respect by the prosecuting committee, if fairly reflected by their summing up at the bar, is not very condign. It was taken, stenographically, and is before us, where it has been the subject of the proper and leisurely reflection to which, from the advantages possessed by the managers, it is entitled. There is a dearth of caloric perceivable in it — no overpowering sense of public wrong to be redressed, or of offended judicial dignity to be avenged. The payment of the money by the two corporations was fully as corrupt and corrupting as was the receipt of it by Smith and Owens, and more guilty in motive than could have been the passage of it through Strong’s office. Both corporations were above the age of consent. If they, and not the bar of Cuyahoga county, were the direct and responsible accusers of Strong, we probably should have something to say at this point.

Still, as the men who for the time being have the good name of this court in our keeping, we must be mindful of that important trust, and visit upon the admitting offender against it such punishment as shall not be mistaken by others for a compliment to him, or be regarded as an apology by ourselves.

A disbarment absolute is not asked in the argument; it is only urged that a mere reprimand would be inadequate to meet the ends of justice, a conclusion with which we are in full agreement. We think it due to our court that the redress to which it is entitled is substantia] and not nominal. The record about to be made, without more, would be adequate so far as the respondent personally is concerned. But as a deterrent example is a required element in penal repression of all kinds, we must go beyond that measure.

Suspension is the favorite of courts in the administration of commutative justice in these days. Poor indeed in delinquency is the delinquent who has not to his credit at least one suspended sentence as a voucher for another.

We find, and it is the judgment of a majority of our number, that the respondent, Edward P. Strong, be suspended from office as an attorney in this court, and debarred from practice as such therein, for the period of one year from the entry hereof.

Carpenter, J., concurs.

Lieghley, J.,

concurs in findings as to jurisdiction, and its limitations, of the court, but takes no part as to the propriety of the judgment in other respects.


author: CHITTENDEN, J. Kinkade, J.

text:
    STREET RAILWAYS.
    [Lucas (6th) Court of Appeals,
    February 5, 1917.]
    Chittenden, Richards and Kinkade, JJ.
    Detroit, M. & T. S. L. Ry. v. David Landesman et al.
    Duty of Motorman to Person Rightfully on Track and in Position of Peril.
    A motorman is bound to use ordinary care to prevent injury to one who is rightfully on the track of the railway company and in a position of peril when he discovers, or in the exercise ol ordinary care would discover, such person so exposed to danger.
    [Syllabus by the court.]
    Error. Application for rehearing.

      Tracy, Chapman et Welles, for plaintiff in error.

      Sala & Carábin, for defendant in error, Landesman.

      H. E. King, for defendant in error, Toledo Rys. & L. Co.
   CHITTENDEN, J.

The defendant in error fell upon the railway track on one of the streets of the city of Toledo in the night season and was injured by a car of the plaintiff in error. A verdict and judgment were rendered in favor of the defendant in error, and the judgment was affirmed by this court.

We have made a careful examination of the reasons advanced by the plaintiff in error for a rehearing of this case. Upon consideration thereof, each member of the court adheres to the views entertained at the time the case was decided, and as expressed in the written opinions then filed.

It is urged that the effect of the decision announced by the majority of the court is to permit the jury to guess and speculate in arriving at their verdict. The court is entirely familiar with the cases cited upon this feature of the case, and has many times applied the doctrin e _ arrnoun ced in those cases. A majority of the court are of opinion that the effect of their decision is not as claimed by counsel for plaintiff; in error, and we do not care to add anything to what was stated in the opinion heretofore rendered

Counsel for plaintiff in error have made a very careful review of eases decided by the Supreme Court, circuit courts and courts of appeals of. this state upon the doctrine of the last clear chance. We have read the brief upon this subject with great interest and have given very careful consideration to this important subject. We will not undertake to enter into any discussion or analysis of the many cases commented upon, but will only state that we think that the correct rule is announced in the case of Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844], in which th^ court, on page 248, say:

“According to the better view with reference to injuries to travelers at highway crossings — as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no legal right to be — the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them.”

We think that this principle is recognized and announced in the later case of Steubenville & W. Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. 325]. The distinction to be drawn between cases where liability depends upon actual knowledge and those where liability rests upon a failure to exercise ordinary care in ascertaining the dangerous situation of the plaintiff is found stated in those cases; namely, actual knowledge may be necessary when the injured person is á trespasser upon tracks, or a mere licensee; whereas the defendant is bound to exercise ordinary care to ascertain the presence in a dangerous situation of one rightfully on the track and likely to be injured.

This court has recognized this distinction in a number of cases. We call attention to the case of Cleveland, P. & E. Ry. v. Stevenson (not reported). In speaking of the duty of a motorman upon an interarban car approaching a highway crossing in the open country, we said:

“It is his duty to keep a vigilant lookout in front of his advancing ear that he may discover persons exposed to danger on highway crossings, and when he does discover, or in the exercise of ordinary care would discover, that persons will not refrain from going upon the crossing, it is his duty to exercise ordinary care to check or stop his car in order to avoid injuring them. ’ ’

To the same effect is the case of Ohio Electric Ry. v. Leininger (not reported).

The rule above announced took cognizance of the fact that one upon a highway crossing was not a trespasser upon the tracks of the defendant company. So, in the streets of a city a pedestrian is not a trespasser upon the tracks of the company in attempting to cross such tracks, although not at a street intersection.

Especial attention has been called to the case of Cincinnati Traction Co. v. Edwards, 38 O. C. C. 436. It is claimed that this case is in conflict with the decision announced in the ease now under review, upon the question of last chance. Counsel say that certified copies of the pleadings and other papers are submitted with the brief} but we do not find them. In view of what Judge Gorman said concerning the pleadings and the evidence, we did not think it necessary to call on counsel to produce such copies, it being plainly manifest that the case was not one of last chance.

We strongly feel that the decision of the Supreme Court in the case of Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. 571], while no doubt correct, in view of the state of the pleadings, and the facts in that case, ought not to be' extended to cases of the character of the one at bar.

Many illustrations readily occur to one to show that to strictly apply the rule contended for by counsel for plaintiff in error, namely, that the driver of an engine or car must have actual knowledge of one not a trespasser, being in a perilous position, before the so-called doctrine of last clear chance can be applied, would in many instances accomplish injustice instead of justice. If a pedestrian were crossing a street railway track in a municipality and should be stricken with paralysis, by reason of which he fell in a helpless condition upon the track, and a street car was approaching at a sufficient distance that it might easily be stopped and prevent injury, by the exercise of ordinary care upon the part of the motorman, it would be anything but a just or humane law that would permit the railway company to escape liability by simply proving that the motorman did not see the man upon the track in his helpless condition, when, if the motorman had been exercising ordinary care in keeping a lookout ahead, he could and would have seen him in time to prevent the accident. "Without multiplying illustrations, and without any further comment, we are unanimously of the opinion that the contentions of counsel for plaintiff in error to the effect that the doctrine of last chance can only apply in eases where-the motorman has aetual knowledge of the perilous position of the party in time to avert the accident, and does not apply to cases where the motorman in the exercise of ordinary care would have had such knowledge, can not be sustained.

The application for rebearing will be denied.

Richards, J., concurs.

Kinkade, J.

I concur in the refusal of the application for rehearing.


author: HOUCK, J.

text:
    EVIDENCE — RELEASES,
    [Licking (5th) Court of Appeals,
    March Term, 1917.]
    Powell and Houck, JJ.
    Shields, J., not participating.

      Edward M. O’Grady v. Newark (City).
    S. Receipt Showing Settlement for the Injury Complained of by Plaintiff Competent, Properly Identified.
    A receipt purporting to be a release from the claim sued on, when properly identified, is competent as evidence under the circumstances presented by this case, but its sufficiency and weight are matters for determination by the .jury.
    2. Mental Condition Resulting from Injuries or Opiates Preventing Understanding of Release.
    A reviewing court will not disturb the finding of a jury as to whether the purported settlement is a bar to the plaintiff’s action, where they had been instructed that if the settlement was made at a time when the plaintiff was in such a mental condition, either by reason of his injuries or from opiates, that he did not understand the nature and effect of the alleged settlement, the payment made to him or to some one for him does not constitute a defense to the action.

      Frank A. Bolton, for plaintiff in error.

      Ralph Norpell, City Sol., for defendant in error.

       For previous decision in same case, see O’Grady v. Newark, 38 O. C. C. 69.

   HOUCK, J.

The parties in this proceeding stand here in the same position as they stood in the court below. The action below was one to recover damages for alleged injuries received by the plaintiff by reason of the explosion of a small boiler used in a peanut roaster, which plaintiff claims was permitted to be operated on a certain street in the city of Newark, Ohio, and that by the carelessness and negligence of said city, through its agents and officers, said boiler exploded, and a part thereof struck said plaintiff on the right leg and violently threw him to the ground, cutting his leg and injuring his head, to his damage in the sum of $5,000. The plaintiff avers that said injuries were in no way caused by any negligence on his part.

The city filed its answer, setting up two defenses, first a general denial; second, that, it has fully settled with plaintiff and paid to him the .full amount that they agreed to pay as per the terms and conditions of said contract of settlement, and prayed that the petition of plaintiff be dismissed.

The plaintiff filed a reply in the nature of a general denial to said second defense, and affirmatively averred that at the time of the alleged settlement the plaintiff was mentally incapacitated from making a valid and binding settlement, or contract of release.

Upon the issues thus raised by these pleadings, the cause was submitted to a jury upon the evidence, and after due deliberation the jury returned a verdict for the defendant. A motion for a new trial being overruled, judgment was entered on the verdict. Plaintiff in error now seeks a reversal of the judgment so entered .for the following reasons:

First. That the trial judge erred in admitting certain evidence.
Second. In not submitting special request number four to the jury.

We have made a careful examination of the record in this case and have read the evidence as presented in the hill of exceptions for the purpose of satisfying ourselves as to the claims of plaintiff in error. Counsel for plaintiff in error earnestly urges that, the trial court erred in permitting a certain receipt, alleged to have been signed by plaintiff in error, which receipt purported to he a release of all his claims for damages against said city, to he offered in evidence, and which receipt tended to prove the settlement relied upon by the defendant.

From our examination of the bill of exceptions, we are fully satisfied that the receipt was sufficiently identified to warrant the court in admitting it in evidence, as an exhibit to go to the jury, iu connection with certain oral testimony, as tending to prove the claim as to the settlement alleged to have been made between plaintiff and defendant. We feel that, from all the circumstances and surroundings of the case, and the testimony offered by plaintiff and defendant as to what occurred at the time of the claimed settlement and the execution and delivery of the receipt in question, it was proper evidence to go to the jury, 'but as to its sufficiency and the weight to be given to it — these were questions for the jury to determine.

The second error which counsel for plaintiff in error alleges as a ground for reversing the judgment of the court of common pleas is the refusal of the trial judge to submit to the jury a certain special request designated as number four, which reads as follows:

“The court charges you that the defendant has pleaded as a second defense a settlement or satisfaction of the claim of the plaintiff for damages, and that the defendant must show not only that there was an agreement between the parties, but that the satisfaction of the same has been full; perfect and complete. If the jury should find that there is still due the defendant from Sam Kantress some money under the agreement alleged to have been entered into, and that the agreement has been but partially satisfied, said settlement is no defense to the action of this plaintiff, but the amount paid may be credited on any amount that may be found due the plaintiff. ’ ’

We have examined this proposition of law in the light of the issue raised by the second defense and the reply thereto, and the' facts as established by the evidence, and we hold that the court was not in error when it refused to submit the above proposition of law to the jury.

Abstract propositions of law, requested to be given to a jury before argument, must be given by the trial judge if they are pertinent to the issue, or issues, raised by the pleadings, and applicable to the established facts in the case. Otherwise they should be refused. It is apparent from an examination of the request by the defendant, if we apply the rule herein laid down as to wha.t special requests in writing before argument shall be submitted to the jury, that request number four was properly refused. The question as to whether or not there was a settlement between the parties to this law suit which would bar the plaintiff from maintaining-his action, and the question as to whether or not at the time of the alleged settlement the plaintiff was mentally incapacitated from making such agreement, were questions of fact which were submitted to the jury, and were passed upon and determined by it; and in face of the finding of the jury, and in the light of the law which was given to the jury by the court, as contained in special request number three, and given before argument at the instance of counsel for the plaintiff below, we do not see how he can now properly complain. We believe this request to be the law, and clearly pertains to the issues raised and the facts to be determined in the case under review.

Special request number three reads as follows:

"The defendant in this action has pleaded as a second defense a settlement of the damages suffered by the plaintiff resulting from the explosion of said peanut roaster or warmer, and the court charges you that if you should find that at the time said receipt was signed and said alleged settlement was made, the plaintiff was in such a mental condition either by reáson of the injuries inflicted upon him, or the administration of opiates, or both, or any other reason, that he could not understand and did not understand the nature or effect of an ordinary business transaction, the payment alleged to have been made to the plaintiff, or to any one for him, is not a defense to the action of the plaintiff herein.”

In passing, we might suggest that but two issues were raised by the pleadings in this case, and upon them the cause was submitted to the jury upon the evidence and the law as given to the jui’y by the trial, judge. The verdict of the jury was a general one, in favor of the defendant, and it is not within the province of a reviewing court to determine upon which one of these defenses, or whether upon both of them, the jury based its verdict.

We think, upon this theory alone, the judgment of the common pleas court in this case might properly be affirmed. The rule of law herein announced is clearly laid down in the case of McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. 715], second paragraph of the syllabus, which reads as follows:

"Where two issues are presented in the pleadings for the determination of the jury, and there is a verdict finding the issues for the defendant, and such finding on either issue entitles him to a general judgment in his favor, and a judgment is rendered on the verdiet, such judgment will not be reversed for error in the instructions of the court, to the jury relating exclusively to one of the issues.”

Viewing the record before us as we do, and finding no error therein which would in any way prejudice the substantial rights of the plaintiff in error, we hold that the judgment of the common pleas court should be affirmed.

Powell, J., concurs.


author: PER CURIAM.

text:
    AUTOMOBILES— EXEMPTIONS.
    [Hamilton (1st) Court of Appeals,
    July 9, 1917.]
    Jones, Gorman and Hamilton, JJ.
    Johnson Electric Supply Co. v. Walter Spence.
    1. Automobile not “Implement” Exempt from Execution.
    An automobile used to carry about an electrician, his tools and supplies, and at times to transport himself and family, is not an “implement” within the meaning of the statute exempting certain articles from levy and execution.
    2. Automobile not Exempt in Lieu of Homestead when Owner and Wife Own Homestead even though Mortgaged and Conveyed to Mortgagee.
    An automobile cannot be claimed as exempt in lieu of a homestead where the owner and his wife were the owners *of a homestead and living therein at the time the levy was made, notwithstanding the property was mortgaged for more than it was worth and was conveyed to one of the mortgagees after the levy was made.
    [Syllabus approved by the court.]

      H. J. Sieberdhaler, for plaintiff in error.

      Galvin & Bauer, for defendant in error.
   PER CURIAM.

The question to be determined in this case is whether or not an automobile, of the type Hudson 1911, is specifically exempt from execution in favor of the defendant in error who was a married man at the head of a family and claimed he was not the owner of a homestead.

The judgment -was rendered against the defendant in error in the sum of $13.4.68, and at the time the judgment was rendered he and his wife were living in a home consisting of a house and lot in the city of St. Bernard, which was encumbered by mortgages for more than its value-. After the judgment was rendered and after the execution was levied upon the automobile in question, the defendant and his wife conveyed to one of the mortgagees the real estate in which they lived. Defendant thereupon claimed that the automobile was specifically exempt from execution under Subd. 5, Sec. 11725 G. C. His calling was that of an electrician, and in an affidavit filed in the trial court, claiming the automobile as exempt from levy and execution, he set out that the automobile was necessary to enable him to carry on his trade or occupation, and that the value of the machine was not more than one hundred dollars.

Subdivision 5, Sec. 11725 G. C., provides that—

“Every person who has a family,” etc., may hold * *- *
“5. ' One sewing machine, one knitting machine, and the tools and implements of the debtor necessary for carrying on his or her trade or business, whether mechanical or agricultural, to be selected by him or her, not exceeding one hundred dollars in value. ’ ’

It is the claim of defendant in error that this automobile is an implement necessary for carrying on his trade or business.

We do not think that an automobile used as this one was, to carry about the defendant, his tools and supplies and at times to transport himself and members of his family comes within the contemplation of the statute as an implement, and therefore it is not exempt from levy and execution under Sec. 11725.

Under Sec. 11726 G. C., a person who is the head of a family and is engaged in agriculture, may hold exempt from execution:

‘ ‘ One horse, or one yoke of cattle with the necessary gearing therefor, and one wagon.”

- But the defendant in this case, is not a farmer, and these •sections relating to exemptions must be strictly construed.

.He can not claim this automobile is exempt in lieu of a homestead under Sec. .11738 G. C., because at the time that the judgment was rendered and the levy made on the automobile he and his wife were the owners of a homestead and living therein, although the same was encumbered by mortgages for more than its value. The stains of the parties and their right to claim the property in lieu of a homestead are to be determined at the time of the judgment and levy. Nixon v. Vandyke, 1 Circ. Dec. 364 (2 R. 63). The defendant and his wife having conveyed their homestead after the levy was made on the automobile, they can not claim under this decision to hold it in lieu of a homestead, because the right to claim the property was fixed as of the date of the levy, at which time they did own a homestead.

For the reasons stated we conclude that the judgment of the common pleas court should be reversed.


text:
    CRIMINAL LAW — PARENT AND CHILD.
    [Licking (5th) Court of Appeals,
    March Term, 1917.]
    Powell, Houck and Shields, JJ.

      Ralph Baker v. State of Ohio.
    Conviction for Failure to Support One Child and Acquittal as to Other Effected upon Indictment Charging Offense against Two Children.
    It is not error, under an indictment charging the defendant with failure to support his two minor children under sixteen years of age, to adjudge him guilty with respect to one of said children and not guilty with respect to the other, and to impose sentence in the one case, in default of bond conditioned upon his providing said neglected child with a proper home, food and clothing in the future, where no objection was made to the form of the indictment in the trial court.
    [Syllabus by the court'.]
    Error.

      Kibler eft Kibler, for plaintiff in error.

      Chas. L. Flory, Pros. Atty., for defendant in error.

       Affirming, State v. Baker, 27 Dec. 311.

   HOUCK, J.

Error is here prosecuted in which it is sought to- reverse a judgment of conviction of the common pleas court wherein the plaintiff, in error, the defendant below, was convicted upon an indictment found by the grand jury of Licking county, in which he was charged with failing to support his two minor children. The indictment contained blit one count, and no motion or demurrer was filed to the indictment by the accused. The defendant entered a plea of not guilty to the charge contained in the indictment, and in open court waived his right to a jury trial, and the cause was submitted to the trial judge, to be heard and determined by him upon the evidence and the law. Trial was had, and the defendant was acquitted as to the charge made against him in the indictment of failing to provide for his minor son, John Baker, but he was found guilty, as charged in the indictment, of failing to provide for Russell Baker. The trial judge made a finding of facts and conclusions of law, which are as follows:

“This day came the parties and this cause came on for trial upon the indictment and the plea of not guilty made by the defendant herein, and by consent of the parties a jury was waived and this cause submitted to the court upon the indictment, plea and the evidence. And the court being fully advised in the premises on the request of the defendant that its conclusions of fact be stated separately from its conclusions of law, find, as its conclusion of fact that:
“From the first day of May, 1915, until the date of the finding of the indictment herein, the said defendant was the father of John Baker, of the age of fifteen years, Russell Baker, of the age of five years, both being under the age of sixteen years, and that said children were residents of Licking county, Ohio; that the defendant did not fail, neglect or refuse to provide the said John Baker with a necessary and proper home, care, food and clothing during the time named in said indictment, and that the said defendant was able, by reason of his personal labor and earnings to provide said John Baker with the necessary and proper home, care, food and clothing; that the said defendant did fail, neglect and refuse to provide Russell Baker named in said indictment with the necessary and proper home, care, food and clothing during said period.
“And as its conclusions of law upon the facts found, the court find that the said defendant is not guilty as charged in said indictment of failing, neglecting and refusing to provide John Baker with necessary and proper food, home, care and clothing, and that the said defendant is guilty of failing, neglecting and refusing to provide the said Russell Baker with the necessary and proper home, eare, food and clothing during said time as charged in said indictment. To which finding of the court, as to the said Russell Baker, the defendant excepts.
“It‘is therefore adjudged by the court that the said defendant is not guilty as charged in said indictment of failing, neglecting and refusing to provide the said John Baker with necessary and proper home, care, food and clothing as charged in said indictment.
“And it is further adjudged by the court that the said defendant is guilty of failing, neglecting and refusing to provide the said Russell Baker with the necessary and proper home, eare, food and clothing as charged in said indictment. To which judgment of the court, finding the said defendant guilty as to said Russell Baker, the defendant excepts.
“ It is therefore ordered and adjudged by the court that unless the said defendant forthwith appear before this court and enter into a bond to the state of Ohio in the sum of five hundred ($500) dollars, with sureties approved by this court, conditioned that the defendant will furnish the said Russell Baker with, necessary and proper home, care, food and clothing, it is ordered and adjudged by the court that the said defendant be imprisoned in the jail of said county at hard labor for not less than six months and to pay the costs of prosecution. To which judgment of the court said defendant excepts.
“Thereupon came the defendant and filed a motion to set aside judgment, finding and decree of the court, and grant a new trial herein for the reasons stated in said motion, which motion is overruled by the court. To which the defendant excepts, and on motion of the defendant, the usual statutory time is allowed for preparing and having allowed a bill of his exceptions herein.
“And on motion of the defendant, it is ordered that execution of above sentence be suspended until the first day of January, 1917, to enable the said defendant to file a petition in error herein. ’ ’

It is contended by counsel for the plaintiff in error that the trial judge was without authority to find the defendant guilty of failing to support one of his minor children, and not guilty of failing to support the other, for the reason that there is but one count in the indictment; and that therefore he must be found guilty as to both children or not guilty, and that there-can be no separation in the finding as to the innocence-or guilt of the accused with reference to the two children. In other words, it is urged that there was but one thing for the trial judge to do under the form of this indictment, and that was to either find the defendant guilty of failing to support both of his minor children, or acquit him of the charge made against him of his failure to support both of them.

' We do not think the claim of learned counsel in this respect sound. AVhile we feel that it would have been in better form to have made two counts in the indictment, yet when the accused did not take advantage of this by motion or demurrer, and went to trial upon the indictment as returned, we do not think that he was in any way prejudiced when he was found guilty of failing to support one of the children and discharged as to the other. We do not see how it could seriously be contended that if the case had been submitted to a jury under proper instructions from a trial judge, in which the trial judge would of necessity, under the law, have instructed the jury that if they found from the evidence that the defendant had failed to support both of his children, then they should return a verdict in accordance with such finding; but if they found, under the evidence, that he was guilty of failing to support one, and not the other, then they should so find in their verdict. This case was submitted to the trial judge without the intervention of a jury, and by so doing, the court was clothed with power and authority to determine the facts and apply the law applicable to the state of facts so found by him, and in this case we are unable to find wherein the plaintiff in error has been in any way prejudiced by the finding of facts and the application of the law to -those facts, as contained in the conclusions of law found by the court.

Finding no prejudicial error in the record, the judgment of the common pleas court is affirmed.

Shields and Powell, JJ., concur.


author: RICHARDS, J.

text:
    STREET RAILWAYS.
    [Lucas (6th) Court of Appeals,
    January 15, 1917.]
    Chittenden, Richards and Kinkade, JJ.
    James Rodeff v. Lake Shore & M. S. Ry. et al.

      1. Verdict Directed for Defendant upon Opening Statement by Plaintiff.
    When counsel for plaintiff in his opening statement of the case to the jury detailed what he expected to prove to sustain his petition, whereupon counsel for defendant moved for a directed verdict in his favor on such statement, and no application was made to explain or qualify the statement, and it clearly appears that the facts offered to be proved would not authorize a judgment for plaintiff, it was the duty of the court to direct a verdict for the defendant.
    2 Section Man Carrying Heavy Weight Injured by Fellow Helper Stepping into Depression Throwing Weight on Plaintiff, not Entitled to Recover.
    A petition by a section man to recover for personal injuries, which avers only that he was engaged with other employes under the direction of a foreman and with the aid of tongs in the lifting and carrying of a heavy steel rail from the track of the company across a depression in the right of way and that he was injured by the shifting of the burden onto himself when the workman in advance stepped into the depression, thus lessening that employe’s lifting capacity, fails to set forth any actionable negligence.
    3. Railway and Employe Required to Show Interstate Employment to Recover under Federal Employers’ Liability Act.
    In order to bring a case within the provisions of the federal employers’ liability act the record should show not only that the company was engaged in interstate commerce but that the employe was so engaged at the time of his injury.
    [Syllabus by the court.]
    Error.

      J. II. Southard and H. J. Cannon, for plaintiff in error.

      Boyle, Lewis, Lewis <& Emery, for defendants in error.
   RICHARDS, J.

The plaintiff sued in the court of common pleas for the purpose of recovering damages for personal injury resulting to him on September 20, 1915. He was employed as a section man and tit the time of his injury was engaged, with other workmen, under the direction of a foreman, in moving steel rails from the track or right of way of the defendant by the use of tongs. At the close of the opening statement to the jury made by counsel for plaintiff, the court, on motion of the defendant, directed the jury to return a verdict for the defendant upon such statement of counsel. This motion was argued by counsel and, upon consideration thereof, the court granted the same and judgment was entered on the verdict. While the method of procedure thus adopted has not been very common in the state courts, yet the trial judge in so proceeding was not traveling in any untrodden path. The practice is approved in Cornell v. Morrison, 87 Ohio St. 215 [100 N. E. 817].

The opening statement follows substantially the allegations of the amended petition, elaborating those allegations in some respects. The amended petition and the opening statement show, in substance, that the plaintiff and other workmen had been supplied by the company with tools known as tongs, used to lift and carry steel rails, and that these tongs were of such length as to permit the section hands to take hold of the handles and lift and carry the rails while the workmen were standing or moving in a more or less upright position. The rail which the section men were handling was about thirty feet in length and weighed approximately one thousand pounds. The men had been supplied with six pairs of tongs, and twelve men were engaged in the operation of moving the rail. It appears that the plaintiff was standing on the track and holding the tong fastened nearest to the end of the rail which was elevated above the track, and that all the workmen were standing alongside of the rail, six on each side of the rail, and that plaintiff was elevated from a foot and a half to two feet above the man holding to the same tong and directly opposite him. It is averred and asserted by counsel in the opening statement that there was a decline from the place where the plaintiff stood inside the rail, to the right of way outside of said rail, and that this rail was to be carried across the decline or depression; and counsel assert in the opening statement that the end of the rail lying on the track should have been pried or pushed off the track and placed in a parallel position to the track and lengthwise of the depression.

Plaintiff contends that the negligent act of the defendant consists in directing the carrying of this rail across this decline in an improper manner, and that by reason of the inequalities in the ground, the burden of the rail would be shifted unequally upon the workmen. The statement further shows that this greater burden was placed upon the plaintiff and the man stationed at the side near where he was standing, and that the men opposite plaintiff were standing on lower ground and their lifting capacity thereby to a great degree impaired, and that when they started to carry the rail the workman next to the plaintiff on the same side stepped down from the track in advance of the plaintiff, thereby lessening his capacity to lift, and shifting the great proportion of the burden to the plaintiff.

The employment in which the plaintiff was engaged was the simple operation of assisting in the carrying of a heavy burden, an operation which is nearly, if not quite, as simple as the familiar one of carrying a trunk up or down stairs. ¥e have given careful attention to the oral and written arguments of counsel and are unable to find any such negligence of the defendant as would render it liable.

The case is, in our judgment, directly within the rule announced in Stenvog v. Transfer Ry. 108 Minn. 199 [121 N. W. 903; 25 L. R. A. (N. S.) 362; 17 Ann. Cas. 240], The principle which forbids a recovery is that the servant is the best judge of his' own lifting capacity.' The principle is equally applicable whether the burden is to be lifted and carried on level ground or ground which is uneven. The notes to the case just cited, state that the lifting of heavy objects involves no perils that are not obvious to any person of common understanding. The rule as stated is followed in Creamus v. Railway, 131 Minn. 34 [154 N. W. 616]. See also Haviland v. Railway, 172 Mo. 106 [72 S. W. 515].

The case at bar is not entirely parallel to that of Cincinnati Gas & Electric Co. v. Johnston, 76 Ohio St. 119 [81 N. E. 155], but the differences are not of such a character as to make that ease inapplicable as an authority.

We have no hesitancy in reaching the conclusion that no such negligence is averred or stated as creates a cause of action against the defendants.

The allegations of the amended petition state that the defendants “were at the time hereinafter stated and now are engaged in interstate commerce, ’ ’ and that the plaintiff was a section hand “whose work-it was to assist in keeping the tracks of said railroad companies in repair for both local and interstate business and traffic.” The apparent purpose of inserting these allegations in the amended petition was to make a case which would fall within the provisions of the federal employers’ liability act. We do not ihid it necessary to determine whether these allegations are or are not sufficient to bring the ease within the terms of that act. To bring a case within that act it is not only necessary that it should appear that the defendant company was engaged at the time in interstate commerce, but that the employe himself was at such time so engaged. The rule is stated in New York Central & H. R. Ry. v. Carr, 238 U. S. 260 [35 S. Ct. 780], and Shanks v. Railway, 239 U. S. 556. See also:

Pedersen v. Railway, 229 U. S. 146 [33 S. Ct. 648]; St. Louis S. F. & I. Ry. v. Seale, 229 U. S. 156 [33 S. Ct. 651]; Chicago, B. & Q. Ry. v. Harrington, 241 U. S. 177; Louisville & N. Ry. V. Parker, 242 U. S. 13.

By the terms of the federal employers’ liability act the defense that the employe assumed the risks usually incident to the employment still remains available to the employer, and, of course, it would follow that, if the plaintiff and defendant were engaged in interstate commerce at the time the plaintiff was injured, he assumed the risk of the injury with which he met and would be thereby barred of recovery.

Finding no error, the judgment will be affirmed.

Chittenden and Kinkade, JJ., concur.


author: CHITTENDEN, J.

text:
    CARRIERS.
    [Lucas (6th) Court of Appeals,
    July 22, 1916.]
    Kinkade, Chittenden and Richards, JJ.
    Cleveland, C., C. & St. L. Ry. v. Fred Mayer et al.
    Consignee Compelled to Pay Demurrage on Car Load of Goods Received notwithstanding Delay is Fault of Carrier.
    When a railroad company notifies a consignee of the arrival of cars containing grain and upon receiving switching instructions immediately gives notice to such consignee of inability to make delivery because of an embargo duly promulgated and notice of which had been given the various railroads, and no further order for the disposition of the grain is given by the consignee and the railroad holds the ears until the embargo is lifted and then delivers them in accordance with the switching instructions, the consignee is liable for demurrage charges.
    [Syllabus by the court.]
    Error.

      Doyle, Lewis, Lewis & Emery, for plaintiff in error.

      Marshall & Eraser, for defendants in error.
   CHITTENDEN, J.

This action originated in the city and justice court of the City of Toledo and was for the recovery of twenty-one dollars, the amount alleged to be due for demurrage on five cars of grain. In that court judgment was rendered in favor of the plaintiff for the full amount claimed. Upon appeal to the Common Pleas Court a jury was waived and the cause was submitted to the court and a judgment was rendered in favor of the plaintiff for the sum of five dollars. The railroad company now seeks to reverse this judgment.

There is no dispute as to the five-dollar demurrage charge upon one of the five cars. The other four cars were consigned to Toledo with instructions to give notice to The J. F. Zahm Company, of which firm the defendants were the constituent members. These cars arrived on July 17th and notice of their arrival was given to The J. F. Zahm Company on July 18th, whereupon that company notified the plaintiff to deliver the ears to The National Milling Company which was located on the tracks of The Wheeling & Lake Erie Railroad Company. It appears that because of an accumulation of cars upon the tracks of The National Milling Company, The Wheeling & Lake Erie Railroad Company had promulgated an embargo upon grain destined to that company, notice of which embargo had been given to the various railroad companies on July 18th. After receiving the switching instructions from The J. F. Zahm Company the plaintiff notified that company of the embargo and of its inability to deliver ears to The Wheeling & Lake Erie Railroad Company for The National Milling Company, because of the same. No further orders for the disposition of the grain were given the plaintiff and the cars were held until July 25th when the embargo was lifted and delivery was made in accordance with the instructions.

The legal question presented is as to whether or not, under such state of facts, the defendant is subject to the demurrage charge. It appears from the evidence that the rule under which the demurrage charges in question accrued was on file with the Interstate Commerce Commission and the Railroad Commission of Ohio, now the Public Utilities Commission, and was as follows:

“When cars are held by a road for delivery within a switching district and can- not, be-received by the switching line owing to the disability of the consignee, notice must be promptly given by the switching line to the road holding the cars in order that it may give notice to-the consignees.”
“The agent of the holding road will give prompt notice as per car demurrage rule 2-b-l, and explanations thereto.”

It is shown by the evidence that the notice required by this rule was given. It is claimed that this rule is to be read in the •light of the American Railway Association interpretations. It is claimed by the defendants that the evidence fails to show that these interpretations were on file with the state commission and the interstate commission. W e find, however, that under the stipulation with reference to the evidence of R. R. Harris, superintendent of freight transportation, and the letters signed by him in pursuance of such stipulation, it fairly appears that the interpretations were on file with both commissions. What the effect of the interpretations would be if they were not on file need not be considered in view of our finding from the evidence that they were on file. Having been approved by both commissions and being on file with them, we find that they are to be read with the rules as the law' governing the case. The interpretation provides:

“It also applies to cars held on a carrier line within a switching district, consigned to a point on the switching line within such district, which can not be received on account of disability of consignee. The carrier line must in all cases give notice in waiting to the consignee of all cars so held. Time will be computed in accordance with Rule 3 (b) following.”

No question is made in the case as to the computation of the time of the demurrage at the rate of one dollar per day for each day after the expiration of the free time allowance.

We think that these rules and the interpretations cover this ease and that the plaintiff is entitled to recover. The demurrage is not to be looked upon entirely as a penalty but it is rather in the nature of a rental for the use of cars for storage during the time that the consignee is unable to care for their contents. This is not only a just provision but it has a tendency to make consignees diligent in unloading and releasing cars for use. As was said in the case of The B. & O. R. R. Co. v. Luella Coal & Coke Co. 74 W. Va. 289 [81 S. E. 1044]:

“The law' imposes upon railroad companies the duty of supplying the shipping public with prompt and proper service. They are bound to furnish cars and if the owner of goods shipped does not perform his duty in 'unloading within a reasonable time the public, as well as the carrier, may be greatly inconvenienced.”

The extent to which the Interstate Commerce Commission and the courts as well, have upheld the demurrage charge is illustrated by the case of Swift & Co. v. The Hocking Valley Railway Co. 93 Ohio St. 104, and the cases cited in the opinion in that case. A case very much in point is that of New Jersey Zinc Co. v. Central Railroad Company of New Jersey, 36 Interstate Commerce Commission Reports, 289, decided October 12, 1915.

We hold that the court was in error in finding for.the defendants upon the four cars in question, and the judgment of the Court of Common Pleas will therefore be reversed. TJpon the undisputed facts disclosed by the evidence this court will proceed to enter the judgment that should have been entered in the Common Pleas Court, in favor of the plaintiff and against the defendants for the full amount of the claim.

Richards and Kinkade, JJ., concur.