author: PARKER, J.

text:
    ELEVATORS — NEGLIGENCE—TRIAL.
    [Lucas (6th) Circuit Court,
    1904.]
    Parker, Hull and Haynes, JJ.
    Alvin M. Woolson v. Joseph Hessling, Toledo Paper Box Co. and Monarch Candy Co.
    Negligence of Elevator Man Employed by Tenants of Building Occupied by Several Tenants Attributed to Tenant Using Elevator at Time of Accident.
    W was the owner of a four-story brick factory building, the entire fourth floor of which was leased to a box company and parts of other floors to a candy company. The building was supplied with a freight elevator, which was operated by a man employed jointly by the several tenants, who, respectively, deducted his wages from the amount of rent due from them each month. The tenant on the fourth floor had some bundles of paper carted to the building, a number of which were placed on a hand truck by the elevatorman, who ran the load on the elevator and raised it to the fourth floor, where the truck was made to tilt by one of the wheels running off the elevator, and a bundle of paper slid off the truck and through the window opening into the elevator shaft, and in falling to the street below struck and seriously injured the drayman who had brought the paper to the building. Held:
    1. That the candy company was not responsible for the condition of the elevator, which made it possible for one wheel of the truck to run off and cause the load to tilt; or for the open window; or for the alleged negligence of the elevator man, since at the time of the accident he was not employed in its service.
    2. That the owner of the building was responsible for the condition of the elevator and elevator shaft, but not for the alleged negligence of the elevator man.
    3. That the tenant of the fourth floor, to which the load was being taken, was responsible for any negligence of the elevator man in making use of the elevator in a manner and under, conditions which should have been known to him to be unsafe.
    4. The determination as ?o what in the negligent chain of causation was the proximate cause of the accident ghould be left to the jury, under instructions which relieve the owner of the building from liability for any independent cause of the accident which could not reasonably have been anticipated.
    Error.
   PARKER, J.

The action in the court below was by Hessling against Wool-son, the Toledo Paper Box Co. and the Monarch Candy Co., on account of alleged negligence on the part of these defendants resulting in. an injury to the plaintiff. The trial resulted in favor of the Monarch Candy Co. directed by the trial judge, a verdict in favor of the paper box componay upon a submission of the issues to the jury, and a verdict by the same jury in favor of Hessling for the sum of $2,000 against Woolson. Motions for new trials, were made by both of the defeated parties. Woolson proceeds here as plaintiff in error, to obtain a reversal of the judgment against him; and Hessling, by a cross-petition in error, asks for a reversal of the judgment in favor of the Toledo Paper Box Co. and the Monarch Candy Co. For a statement of the facts and the issues as presented by the pleadings, I shall adopt, in a large measure, an abstract of the pleadings found in one of the briefs of counsel.

It is alleged in the petition that for some time prior to and upon May 22, 1902, the defendant, Alvin M. Woolson, was the owner of a four-story and basement brick building, known as the Berlin Block, situated at the northwesterly corner of St. Clair street and Jackson avenue in the city of Toledo; that on said date, and for some time prior thereto, the defendants, the Toledo Paper Box Co. and the Monarch Candy Co. each corporations of the state of Ohio, were, and for some time past had been renting separate parts of said building from the defendant Woolson; that the Toledo Paper Box Co., for the purposes of its business, occupied the entire fourth floor of the building, and the Monarch Candy Co., for the purposes of its business, occupied a portion of the basement and a portion of each of the first, second and third floors thereof.

When the box company and the candy company each took possession of the premises occupied by them respectively, there was at the rear of the building an elevator shaft about six feet square, which extended from the basement forming the westerly or outer side of the elevator shaft, a window being constructed in this wall at each floor. In the elevator shaft there was a freight elevator, provided with a platform or floor about six feet square, and this elevator was equipped for the use of certain of the tenants of the building, subject to terms and conditions hereinafter considered, for elevating and lowering goods, wares and merchandise np and down the elevator shaft to and from the several floors of the building in the conduct of the business of said tenants, respectively.

On May 22, 1902, the Toledo Paper Box Co. employed the Moreton Truck & Storage Co. to haul certain bales of paper belonging to the box company to the elevator shaft in the rear of the Berlin Block, where same was to be unloaded.

Joseph Hessling, the plaintiff, was then in the employ of the truck company, as a drayman, and at the direction of the manager of the truck company, about 9 -.30 a. m. drove a dray loaded with this paper to the entrance of the elevator shaft at the rear of said building and at the direction of the box company was there engaged in unloading the paper from the dray onto the ground.

In the amended petition, it is alleged by plaintiff, that whilst he was so engaged, one Henry K. Strayer, who was operating the elevator, loaded a truck with paper, in the rear of the building, drew it onto the elevator and elevated the same to the fourth floor, and that while said Strayer was unloading the truck off of said elevator onto the fourth floor of the building, he carelessly caused some of the wheels of the truck to run into an opening adjacent to the elevator platform between the elevator platform and the westerly wall of the building, thereby causing the truck to partially overturn and a portion of said paper, loaded on the truck, to fall out of the window of the building located in said elevator shaft above the fourth floor striking plaintiff on the shoulder, and fracturing his arm and otherwise injuring him.

It is further alleged that the box company and the candy company, as tenants of Woolson, were each in the possession and control of, and had access to and the .right to use said elevator in raising and lowering their goods, wares and merchandise to the respective parts of the building, so used and occupied by them by virtue of their said contract of lease with said defendant Woolson.

On May 22, 1902, said elevator was operated and controlled by one Henry K. Strayer, who was the joint employe of the candy company and Woolson. It was the duty of Strayer to load all the goods, etc., of the candy company and the goods, etc., of all other tenants of said Woolson, except the box company, upon the elevator, for the purposes of taking the same into and out of the building, as said company and said tenants might direct. Prior to and on May 22, 1902, it was mutually agreed between the candy company, Woolson and the box company that the candy company and Woolson would elevate and lower on. said elevator to and from the fourth floor, above the basement of the building (the premises of the box company) all goods, etc., that the box company might desire to take into or deliver from its said premises, for a consideration paid, or to be paid by the box company to the candy company and Woolson. Strayer was directed by the candy company and Woolson to elevate and lower, by means of said elevator, all goods, wares and merchandise that the box company might desire to take in or out of said building; and on May 22, said Strayer was in the performance of said duties so assigned him by the candy company and Woolson.

On said day said Strayer was in the employ of the candy company and Woolson in loading paper upon a four-wheeled truck in the rear of said building at the entrance of said elevator shaft at the basement floor thereof; hauling said elevator truck on said elevator, elevating the same to the fourth floor of said building, and unloading the same.

In the amended petition plaintiff further alleges that the elevator shaft was carelessly and negligently constructed and maintained by Woolson, and was carelessly and negligently permitted to be kept, maintained and operated by the candy company and the box company in that said shaft was erected vertically and against the westerly wall of the building at its base; that this wall diminished in thickness at the upper floors of the building (the outer line of said wall being vertical) and at the fourth floor of said building said elevator was separated from said wall by a space of about eighteen inches, which extended the entire width of the elevator; that on the day of the aeeident to Strayer this opening was and for some time prior thereto had been unguarded. That between each floor of the building in said elevator shaft 'Woolson- had constructed a window to furnish light to said shaft, but that he carelessly and negligently failed to construct anything to keep the loads upon said elevator from rolling off the floor there and falling through said windows to the ground beneath upon employes loading and unloading goods upon and to be taken from said elevator.

It is further alleged that Woolson, in so constructing said building, elevator shaft and elevator, and each of said defendants thereafter had cause to know, and did know that the elevator was so constructed as to render its use and operation dangerous to persons working outside of the building, at the base of said elevator sliafe, and that in turning and hauling loaded trucks off of said elevator the same was liable to run off of said elevator into said opening between the floor of the elevator and to the outer wall, overturning the truck and throwing the load through the opening and through the windows to the ground below. That said elevator, elevator wall and buildings were in said condition when said several parts of said premises were leased by Woolson to the box company and the candy company and that the defendants have negligently permitted same to remain in said condition ever since they became such tenants.

In the amended petition it is further alleged that the plaintiff was not aware of the condition of the building, elevator shaft and elevator, and had no means of knowing the same, and that in unloading the paper he was exercising due care for his own safety. Plaintiff prays for damages in the sum of $15,000.

The defendant, Alvin M. Woolson, in, his answer, admits that on May 22, 1902, the box company and the candy company were his tenants and, under separate leases, occupied different portions of the Berlin Block;, that subject to the terms and conditions hereinafter set forth, and not otherwise, each of said defendants separately had access to and the right separately, to use said elevator in raising and lowering goods, wares and merchandise to and from the respective parts of said building, separately used and occupied by them.

The defendant, Woolson, admits that on May 22, 1902, said elevator was operated and controlled by Henry K. Strayer, and alleges that when not engaged about the business of the box company, it was the duty of said Strayer to load the goods of the candy company upon said elevator for the purpose of taking the same into and out of said building, as the candy company might direct, and that when not so engaged, it was the duty of Strayer to load the goods of the box company upon said elevator for the purpose of taking same into and out of said building, as the box company might direct. That on May 22, 1902, solely at the direction of, and for, and when engaged only about the business of the box company, Strayer was loading paper belonging to the box company upon a truck owned by the box company at the rear of the building, near the entrance to the elevator shaft, at the basement floor thereof, hauling said truck on the elevator, elevating the same to the fourth floor of the building, occupied and controlled entirely by the box company, and there unloading the same.

The defendant, Woolson, further alleges that on said date plaintiff was employed as a drayman by the truck company; that this company was employed by the box company to haul certain paper belonging to it to said elevator shaft; that during the forenoon of said day plaintiff drove a dray, loaded with paper, the property of the box company, to the rear of said premises, and at a place where directed by the box company, unloaded said paper from the dray to the ground; that on said day, plaintiff was in some rvay, wholly unknown to defendant Woolson, injured by reason of a portion of the paper falling upon and striking him; but alleges that he does not know and has not the means of knowing the nature and extent of said injuries. He admits that said elevator shaft was erected vertically and against the westerly wall of said building; that this wall diminishes in thickness at the upper floors, and that between each floor of said building in said elevator shaft or well, a window is constructed, which furnishes light to the elevator shaft. He further alleges that for some time prior to and upon May 22, 1902, the box company was the sole occupant of the entire fourth floor of the Berlin Block, and was in the entire possession and control of said elevator and said elevator shaft, and that at said time Henry K. Strayer was engaged only in the employ and business of the box company. That for a long time prior to and upon said date, the defendant, Woolson, was not in the possession, use or control of the fourth floor of the building, or of the elevator shaft, or of the elevator therein, and did not operate or in any wise control the operation of said premises, or furnish power for or in any wise operate or control said elevator.

The defendant, Woolson, further says that the box company occupied the fourth floor of said building, and used said elevator shaft and the elevator therein, under an agreement with said Woolson whereby it was provided that the box company should entirely, at its own expense, furnish all the power and service required to run and control said elevator during the time said elevator was in actual use by it, with the right to so operate and use said elevator at all reasonable times for its purposes and business.

The defendant, Woolson, further alleges that said building, said elevator shaft, and the elevator therein, were all constructed prior to May 22, 1902; that when the box company and the candy company severally took possession of the portions of the building leased by them, and severally acquired the right to use said elevator shaft, and the elevator therein, said elevator shaft was suitably enclosed, and all the windows were provided with all proper and necessary sashes and appliances requisite to prevent merchandise or other articles from falling through said windows; that the elevator was provided with all suitable, necessary and proper fittings and appliances, so as to fully equip same for use by said defendants, and that said elevator and said fittings and appliances were, at all times thereafter, kept and maintained in sound repair and in good running order; that said box company and candy company, after taking possession of the separate portions of said premises, leased and occupied by them, respectively, were at all times thereafter, and upon and after May 22, 1902, severally in the occupation, possession and control of said separate portions of said building leased to them respectively, and that when required for use by the box company, said elevator shaft and elevator were in the sole occupation, possession and control of the- box company, and when required for use by the candy company, were in the sole occupation, possession and control of the candy company. Defendant, Woolson, further denies all of the allegations in said amended petition, charging him with carelessness or negligence in the construction of said building and elevator shaft, or otherwise, and in the construction, maintenance and operation of said elevator, or otherwise.

The defendant, the Monarch Candy Co., in its answer, alleges that for some time prior to and upon May 22, 1902, the box company was the sole occupant of the entire fourth floor of said Berlin Block; and that at the time of the accident, where by plaintiff was injured, said box company was in the sole possession, use and control of said elevator and said elevator shaft, and that at said time, said Henry K. Strayer was engaged only in the employ and business of said box company, and was in no wise engaged in the employ of the candy company; that at the time of said accident, the candy company was not in the possession, use and control of the fourth floor of said building, or said elevator shaft or of said elevator therein, and was not operating, and did not operate or in any wise control the operation of said premises or furnish power for or in any wise operate or control said elevator.

The candy company further alleges that at the time of said accident, the box company occupied said fourth floor and used said elevator shaft and elevator under an agreement with Wool-son, as alleged in his answer, and that under the terms of the lease, whereby the candy company occupied its portion of said premises, it had no right whatever to use, operate,or control said elevator shaft or said elevator whilst same was being used by said box company.

The candy company further alleges that said elevator shaft was suitably enclosed; the windows were provided with all proper and necessary sashes and appliances, etc., and that said elevator shaft was suitably and properly equipped for use and kept and maintained in sound repair and in good running order. All allegations in the amended petition charging the candy company with negligence, are denied.

The defendant, the Toledo Paper Box Co,, in its answer, admits that on May 22, 1902, it was, and for some time prior thereto had been occupying the entire fourth floor of the Berlin Block; that on said day said elevator was operated and controlled by one Henry K. Strayer, who was -employed solely by the candy company; that the candy company for a consideration paid to it by Woolson, raised and lowered the goods and wares of the other tenants of the building, except the box company, and that for a consideration paid directly to the candy company by the box company, the candy company agreed to raise and lower all the goods and wares of the box company to and from the fourth floor of said building, and that it was the duty of the candy company to raise all the goods and wares of the box company from the ground at the rear of the building and deliver them to the box company on the fourth floor of the building and to receive the goods and wares of the box company on the fourth floor of the building, and lower them to the ground in the rear thereof, and that while said goods and wares were being so raised or lowered, the box company had no control over them, and that the box company had no choice in the servants of the candy company, and had no right to control the servant of the candy company who operated said elevator, or any choice in the selection of said servant; but on the contrary, such servant was chosen, employed, directed and controlled solely by the candy company.

The box company further alleges that on May 22, 1902, Henry K. Strayer was engaged in loading paper belonging to the box company upon a four-wheeled truck, owned by it, and elevating said truck, when loadéd to the fourth floor of the build, ing, and delivering the paper from said truck to the box company at the fourth floor; that said Strayer, while so engaged, loaded said truck with paper and raised same to the fourth floor, when one of the wheels — it then proceeds to describe the circumstances of the accident about as described in. the other pleading. And this answer also contains about the same allegations as are contained in the other pleadings as to the construction of the elevator shaft.

The box company, in its answer, further alleges that said elevator and elevator shaft were erected, constructed and maintained by Woolson; that at the fourth floor of said building said elevator floor is separated from the outer wall of said building by a space of about twelve -inches, extending the entire length of said elevator, said space being the opening into which the wheel of the truck slipped; that Woolson had constructed between each floor of said building in said elevator shaft, a window to furnish light, the window at the fourth floor in said shaft being the window through which the bale of paper fell; that said elevator shaft and elevator had been constructed by Woolson long prior to the time when possession was taken of said fourth floor by the box company, and was in the same condition on May 22, 1902, when the accident complained of occurred, as it was when possession was taken of said fourth floor by said box company; that said Woolson retained and exercised control over said elevator and elevator shaft, jointly with the candy company, and that the box company had no control over and was not responsible for the construction, maintenance or repair of said elevator and elevator shaft. All allegations in the amended petition, charging the box company with negligence, are denied.

So it will be seen, as stated by counsel upon the hearing, that this is a sort of triangular contest — I do not know but it has more sides than that. Now when the ease came to be tried, there was not much controversy or dispute about the circumstances of the accident. The dispute was largely respecting the rights and obligations of the defendants respectively, with respect to this elevator or elevator shaft. Wbát they were claiming about that matter is well stated in the pleadings, of which I have read abstracts.

After the evidence was all in, the trial judge stated to the counsel and indicated his view of the matter, and advised them of what he would submit to the jury, and he charged the jury along lines indicated by his remarks, and, as his remarks happen to be in the record and state the matter very clearly, more comprehensively perhaps than the charge itself, I shall read some from them. His remarks were made in passing upon the various motions to direct verdicts: He says:

“I will say that in disposing of these motions I will not undertake to review the evidence nor discuss the various authorities that have been cited, but will simply state the conclusions at which I have arrived, so that counsel may know what matters are to be submitted to the jury. The questions are very important, and some of them new and difficult, and with the adverse and conflicting views that may be reasonably entertained upon these questions, I can not be expected to do much more than attempt to make a good guess, especially in the limited time at my command.
“First, as to the defendant Woolson.; I am of the opinion on the undisputed facts that it was his duty to use reasonable care to keep the elevator and the shaft in a reasonably safe condition for use, and that the question to be submitted to the jury so far as he is concerned, is, whether at the time of the accident the elevator or the elevator shaft was in a defective condition such as is alleged, and whether such defective condition, if it existed, was due to any failure on his part to use reasonable care, and whether the defective condition of the elevator, if it existed, was the proximate cause of the injury. Now, he built the elevator shaft in the building, and put in a freight elevator for the use of all the tenants in the building who desired to use it. In leasing the various rooms in the building to his tenants he did not give to any tenant the exclusive right to the possession or use or control of the elevator. No tenant had such exclusive right. During the entire time Mr. Woolson. was accustomed to make and did make all the repairs on the elevator and shaft that were called for, or that seemed to be necessary, and up to January, or about January, 1900, he paid a part of the wages of the man who operated the elevator, and thereafter the part of the wages that he had been accustomed to pay was paid by the two tenants, and at the same time Mr. Woolson reduced the rent of the two tenants by the amount which he had been accustomed to pay therefore as wages. I think that under all the facts and circumstances of the ease which are undisputed, he was in such possession and control of the elevator as required him to use ordinary and reasonable care to keep it in a safe condition for use. I do not think this ease is like the cases cited, such as Burdick v. Cheadle, and other cases, where the exclusive possession and control of the entire premises was given to the tenant; that is more like the common stairway and common passageway cases.
“As to the other charge,of negligence, so far as Woolson is concerned, viz: the negligence of Strayer, I do not think on the undisputed facts, that while Mr. Strayer was engaged as he was at the time of the accident in hauling the goods of the box company, pertaining to the box company business, Strayer was the servant of Mr. Woolson, so that he can be held to be charged with Strayer’s negligence, if there was any negligence upon his part. My conclusion on that feature is, to say to the jury that such negligence — negligence of Strayer — can not be imputed to or considered as against Woolson.
‘1 So far as the defendant, the candy company, is concerned, I am of the opinion on the undisputed facts that the candy company is not liable upon either ground of negligence, and the jury will be directed to return a verdict in. favor of the candy company.
“As to the defendant, the paper box company, I am of the opinion that Strayer at the time of the accident was its servant and was engaged in its business; that Strayer was under such control of the paper box company while attending to its work as to render the box company liable for any negligence upon the part of Strayer while doing that work. There is no evidence that he was under the control of any other party at that time, and impliedly while doing the work of the box company, he was subject to the orders, directions and control of the box company; and this seems to me is more clear, when it is considered that the plaintiff was on the premises upon the invitation of the box company. He was properly there attending to work for and in behalf of the box company; not as its agent, of course, but he wras there upon the invitation, of the box company. Without drawing any fine distinction as to what constitutes an agent or servant, Mr. Strayer was not a volunteer. He was elevating goods of the box company and for the box company. The box company owed some care to protect a person, who was on its premises by its invitation; and if Strayer in moving these goods was negligent so far as the plaintiff was concerned, and that negligence resulted in the plaintiff’s injury, it was the same as if the box company itself was negligent.
“As to the other ground of negligence, so far as the box company is concerned, as has been stated here by counsel, we are unable to separate one of these tenants from the other, and having held that the candy company is not liable upon that ground of negligence, I must hold the same as to the box company; in other words, that under the admitted facts and circumstances, so far as the condition of the eleyator is concerned, Mr. Woolson is the only one to look to.
“The result of the whole thing is, that the questions to be submitted to the jury are solely these: First, whether Strayer was negligent in the respect alleged in loading this truck, or in hauling it off from the elevator, and whether such negligence was the proximate cause of the injury. If both of these propositions are established by a preponderance of the evidence, then I should say to the jury that the box company is liable. That is one question.. The other question is, whether the elevator at the time of the accident, or the shaft, was in a- defective condition. Of course that is not to be determined by the fact that an accident happened. The jury must find that it was in a defective condition and an unsafe condition. Second, whether the defective condition of the elevator was due to the negligence of Woolson or a failure on his part to use what under all the circumstances of the case, was ordinary and reasonable care. Third, whether such defective condition, if it existed, was the proximate cause of the injury. The case will present this feature: If the jury should find that Strayer was negligent, and- that his negligence was the sole proximate cause of the injury, why then the box company alone would be liable; but if they find that Strayer was using care and that there was no negligence upon his part, the box company would not be liable. If they should find from the evidence in the case that Strayer was using due care and there was no negligence upon his part, and that the defective condition of the elevator was the proximate cause of the-injury— if they find that Woolson was negligent — then he alone is liable; but if they find that the negligence of both directly and proximately caused the injury, then both the box company and Wool-son are liable, provided they find them to be negligent. ’ ’

Now we have read the evidence in this ease very carefully, including the -written evidence consisting of these leases made by Mr. Woolson. to these various tenants, and the evidence resepet-. ing alleged oral modifications of these leases; and we conclude that the summing up by the trial judge in passing upon these motions correctly states the obligations of these parties and the issues to be submitted to the jury, i. e.:

First. Thát the candy company was not liable because of any responsibility for the condition of the elevator or the elevator openings at the fourth floor, and was not responsible for the conduct of Strayer, since he was not in its service, nor subject to its direction or control when taking the paper to the fourth floor for the box company; and the judgment of the court below as to the candy company will be affirmed.

Second. That Woolson was responsible for the condition, of the elevator and the elevator shaft, but not for the conduct of Strayer, since he was not an employer of Strayer.

Third. That the box company was not responsible for the unsafe condition of the elevator shaft or elevator, due to defect in floor or failure to provide a safety guard for the window. But the box company was responsible for any negligence of Strayer in making use of the elevator under conditions and in a manner known to him to be unsafe and dangerous.

We come now to the consideration of the questions whether the verdict against Woolson is against the manifest weight of the evidence, and whether the verdict in favor of the box company is against the manifest weight of the evidence.

I should say that the evidence discloses that there was this space, not of eighteen inches, but of about twelve inches, I believe — I have not had an opportunity to verify these figures since it devolved upon me to deliver the opinion in this case, so I shall have to give them simply in a general way and rectify them afterwards, but I believe the space was about twelve inches between the floor of the elevator and the west side of the building at the fourth floor of the building, when the elevator was elevated on the fourth floor; and it appears that because an accident had happened at this point, a boy having fallen and injured himself, immediately following that, that Mr. Woolson through his agent had gone there and rectified this defect and obviated this danger. This was done by putting a plank in to fill this space, and in putting in the plank, instead of placing it so it would be on a level with the fourth floor, and therefore level with the elevator when it was at the fourth floor, it was about, four inches and a fraction, I believe, below that level. It also appears that the window at this fourth floor, like the windows at the other floor openings from the elevator shaft, at the rear of the building, was so placed that the sill was, I believe, something less than three feet above the fourth floor, and that this window had in it two sash, moveable sash; that each sash had four lights or panes of glass; that upon this occasion when Mr. Hessling came with this load of goods to the rear of the building, Mr. Strayer, who was in the employ and service of the box company, took the elevator to the lower floor, and with it a little cart or truck that has been mentioned; that he took this truck from the floor of the elevator out to the rear of the building and there loaded the paper upon it; that the paper was in bundles or packages, the size of these packages I am not able to state from memory, but I should think they were from twenty-four to twenty-eight inches square, ■ perhaps a little longer one way than the other, and something like four or five inches thick and weighed about thirty-five pounds each, if my memory serves me right. He piled eleven of these packages upon the truck, perhaps the exact number of packages is not stated — he piled them up in one tier or one bundle upon the other, which made a pile about four or five feet high. He then brought the truck upon the floor of the elevator and that brought him to a position where the front of the truck and the tongue was toward the east and the rear of it was toward the west, so that when the elevator was brought up to the fourth floor, the rear of the truck was toward this window. It appears that on account of the size of the elevator floor, the limited area within which he had to operate and the way the tongue was constructed, that it was necessary to back the truck toward the window in order to turn it and take it out of the side door to the fourth floor, the doors from the elevator at this floor being at the side of it. In this operation the truck was backed toward the window, so that one of the wheels dropped down into this space where this offset of about four inches was; that this threw the truck out of perpendicular, and it dropped down on one side and elevated at the other, and the bundles of paper slipped off of the truck; they were higher up than, the sill of the window, and some four, I believe, of the bundles went out of the window and down upon the drayman who was below, injuring him.

It is not claimed, nor does it appear that the plaintiff was guilty of any negligence in the premises. It also appears that Mr. Strayer had been employed in operating this elevator for some time, and that he was well advised of all of the conditions; that in backing this truck with this load upon it, he appreciated the fact that the operation was dangerous. He so says in his testimony, in fact. It also appears that this operation might have been obviated, that is to say, there were many ways of elevating this paper to the fourth floor and unloading it there other than this dangerous way; that the truck might have been loaded at the lower floor, without being removed from it; it might have been placed also in a position so that it could have been backed or taken off at the upper floor without any turning, or, if taken out to be loaded, it might have been brought in and turned at at the lower floor without any danger from the operation, or at the upper floor even, it could have been taken out as it was without turning. There might have been measures taken in the blocking of the wheels or otherwise to prevent the wheel from dropping into this offset, or so many of the bundles as come up higher than the sill of the window might have been unloaded from the truck before the truck was moved, or the bundles might have been fastened in some way upon the truck; the truck might have been provided with some sort of a railing to prevent the bundles from dropping off, and, speaking of the circumstances as they were on that day, on that occasion, of the conduct of Mr. Strayer, I mention that he might have safely carried all these bundles. Another thing he might have very easily done, as appears to us, that would have been to have lowered this lower sash of the window to its place, so as to prevent this sliding of the bundles out of the window. None of these things were done. The operation by Mr. Strayer was such as resulted in this calamity, and it is the only method that we can think of or conceive of that could have been pursued that would have resulted in this calamity, unless he had voluntarily thrown the bundles of paper out of the window.

Now is this verdict in, favor of the box company against the weight of the evidence! We think it is. Strayer was the only active participant or agent in the causes leading to the result. If it can be said that Woolson may be held responsible, upon its being made to appear that he was guilty of negligence in leaving that offset in the floor and in leaving the window open, só that articles might fall out and upon persons beneath, this must be so upon the theory that a reasonably prudent and cautious man in his situation should have anticipated the happening of such an event, must have foreseen, at least, the likelihood of one using a truck similar to that used here, so constructed that the wheels might drop into this offset, and of one loading such truck with loose bundles of paper as these were loaded, and operating the same as this was operated, before such open window, while men were beneath where they might be injured by bundles falling out of the window and upon them.

If Mr. Woolson who was not present at the time of the accident, and actually knew nothing of the way this truck was loaded and was handled before the open window, may be held responsible on the ground that a reasonably prudent person exercising ordinary care should have anticipated all these circumstances in the chain of causation, what shall be said of Strayer, who not only knew of the offset in the floor and the open window, but actually loaded the truck and moved it in the manner that produced the result, and that in the face of this danger, and, apparently with some actual appreciation, as well as presumed knowledge thereof, when he might have refrained from such action and might have pursued a course or several courses open to him that would have obviated the danger. We can not understand how it can be said, logically and fairly, that because of his passive negligence in permitting a dangerous condition to continue, and his presumed anticipation of this concatenation of circumstances and the result, the like of which might not happen again in a millenium, Woolson should be deemed guilty of negligence in law, while Strayer, knowing all that Woolson knew, and all that Woolson may be presumed to have known, and besides being the active, independent human agent, who, of his own volition put these potentialities in motion, and thereby made them a part of a chain of actual causes and agencies resulting in this injury, may be said to be innocent of any fault or negligence in the premises.

That Strayer was acquainted with all the surroundings and conditions, and that' he regarded the situation as dangerous when he came to try to take the truck from the elevator appears from his own testimony. Passing by the question whether he negligently loaded the truck, though he might have put or turned the truck upon the platform at the lower flower and so avoided the accident; though he might have placed some hindrance to the wheel leaving the elevator platform and so avoided the accident; though he might have taken a few of the bundles from the truck before he attempted to turn it and so avoided the accident; though he might have closed the window and thereby in all human probability avoided the accident, he voluntarily chose the only course that can be conceived of under the circumstances, that would produce the accident, and the accident happened, and yet the jury said he was not guilty of negligence that was a proximate cause of the injury. This verdict is, we think, manifestly and clearly against the weight of the evidence.

As to the verdict against Woolson. Is it against the weight of the evidence ? As I have indicated, we regard the happening of this accident as one scarely to be anticipated by one not on the ground to observe the conduct of Strayer in loading and managing the truck. And yet we are not prepared to say that a jury may not justly and properly hold Woolson also responsible for the result. But we are of the opinion that his legal responsibility does not fairly appear from this record. Let it be granted that the way the floor was left amounted to negligence, and that the way the windows were left open and unguarded at the time of the accident under the circumstances amounted to negligence, and that, knowing of this condition, of the offset in the floor and on open unguarded window, he may be held to be bound to anticipate the other conditions, due to the character of the truck and the manner of its use on this occasion, and still his legal responsibility does not follow.

It is to be observed that to produce the result here it was necessary not only that the jog in the floor should be present to permit the wheel to drop and the cart and load to tip so that part of the load might slide off, but it was necessary that there should be nothing in the way to prevent the load from going out of the window. Both causes or circumstances concurred and were essential to the result. If the floor had been without the offset, it is not likely that one would move the truck so negligently as to throw the load out of the window, though he might have done so. On the other hand, had the window opening been in condition to prevent the load from going out of the window, no harm would have resulted from the offset in the floor and the consequent sliding of the load from the truck. Now the evidence discloses that while it devolved upon Woolson to keep the elevator in repair so as to make it reasonably safe for use (safe to the tenant and his servants and customers and one lawfully and properly there as was the plaintiff in this case), the elevator and the openings to the shaft were under the control of the tenants, and the window to the shaft at the fourth floor seems to have been under the control of the box company. It also appears that this window (like the others) was provided with two moveable sash, one above the other (the usual form of construction) and that in each sash were four panes of glass, each about 12 or 14 inches wide by 18 inches high, there being two panes at the bottom of each sash and two more immediately above; also, that these sash moved with cords, weights and rollers, so that they might be readily moved up and down. It also appears that the window (like the others) was provided with solid plank swinging doors, opening outward and meeting at the center of the opening. It does not appear that these doors could not be closed and fastened, nor that any glass were absent from these sash. It is apparent that with the doors closed or with the lower sash down in place, this paper could not have slid from the window. The parcels were too large to go out through the sash, unless both glass and the wooden part of the sash between them should be broken. It is not made to appear that the lower sash, if down, would not have prevented this accident. As the paper could not have gained much momentum before striking it, unless it was in a very frail condition, the sash must have presented an effective barrier to its further progress.

It is charged that Woolson did not furnish the bars or other guards or barriers at this window opening. The burden of proving this rested upon the plaintiff. We think that he has failed to establish this by the evidence, and that therefore the verdict, as to Woolson, is manifestly against the weight of the evidence. Woolson was not an insurer of the safety of one in the situation or sustaining the relation of the plaintiff, toward him. And for his safety, Woolson was bound to do more than exercise ordinary care. It does not appear that he had not done so in making the provisions mentioned for the closing of the openings of the windows. He was not bound to anticipate that the tenants would not make use of these appliances or avail themselves of these provisions, but would, under circumstances where it would be dangerous and negligent to do so, remove the barriers provided.

The opening was needed for light and air. Mr. Woolson might have anticipated that in the ordinary use of the elevator, the plank door would be opened to let in light and air, and that to let in air the lower sash would be lifted or the upper one lowered. But if the tenant should be using the elevator in a manner that would make it obviously unsafe to raise the lower sash, we do not think it reasonable to say that Woolson should have anticipated or was bound to forsee that the lower sash would be raised, especially in view of the fact that the same light and air would be secured by lowering the upper sash instead. We think that to require Woolson to stand by on guard to prevent such operation, or require him to fasten the lower sash so that it could not be raised at all, though generally it might be quite safe and more convenient to have it raised, would require of him too high a degree of care, would amount practically to making him an insurer against such accidents.

In this connection, I desire to call attention to one or two paragraphs in the charge of the trial judge, which, under the circumstances, may perhaps have a tendency to mislead the jury somewhat; for we think that these provisions having been made for the closing of the window, the negligence of Strayer consisted not only in his movement of the truck and in his failure to lower the sash or take other measures to prevent the paper from falling out of the window; and in charging the jury, the language of the court is open to the construction that Strayer might have allowed the window to remain precisely as he found it when he brought the paper to the upper floor, and that he would not be guilty of negligence in so doing, no matter what provision might be made, by not closing the window, provided that the elevator was in a defective condition. So far as it is open to this construction, we think that the charge is wrong. I read at page 110:

“The result of the whole thing is, that the questions to be submitted to the jury are solely these: First, whether Strayer was negligent in the respect alleged in loading this truck, or in hauling it off from the elevator, and whether such negligence was the proximate cause of the injury. If both of these propositions are established by a preponderance of the evidence, then I should say to the jury that the box company is liable. That is one question. The other question is, whether the elevator at the time of the accident, or the shaft, was in a defective condition. ’ ’

Fairly interpreted we think this lanuage is open to the construction that the failure to close the window was part of the operation by Mr. Strayer, on account of which he might be chargeable with negligence. The other part of the charge I call attention to was excepted to specifically on behalf of Woolson. I have already undertaken to point out that it was necessary in order to make Mr. Woolson legally responsible here that he should have been negligent in both respects charged. That is to say, in leaving the jog in the floor of the platform, and also in not providing for the opening at the window, so that things might not fall out; and in one paragraph, at least, of the charge it seems to be stated, indeed it is stated distinctly that if he was negligent in either respect, he was legally responsible. I read that part of the charge:

“Next as to the defendant Woolson: In order to entitle the plaintiff to recover of the defendant, Woolson, it is incumbent upon him to show by a preponderance of the evidence, first, that the elevator or the elevator shaft was in a defetive or unsafe condition by reason of the opening or depression adjacent to the elevator platform when it was at the fourth floor, not being sufficiently covered or guarded, or by reason of there being no bars or other obstructions across the window, either or both.”

Making him responsible on account of negligence in either respect; making him responsible, though the jury may have found that he had exercised due care in providing barriers for the windows so that goods might not fall out; though they might have found that the barriers provided were entirely adequate; that he was not negligent in that respect, yet the court says, if he was negligent in the other respects, he is liable; and that part of the charge we think is erroneous. It must appear not only that Woolson was negligent, but that his act of negligence was the proximate cause, or a proximate cause of the injury. The law does not impute negligence to one for his act resulting in an injury which would not have happened but for the interposition of a new and independent cause which was not to be reasonably anticipated, and when the new and independent cause consists in a voluntary and negligent act of another person, that such negligence is to be anticipated is not ordinarily a reasonable conclusion; for it is usually more reasonable to anticipate ordinary care, at least, in the conduct of sane adults.

Even if it may be permissible to conclude that Woolson should have anticipated all the other acts, negligent and. otherwise, in this peculiar chain of causation, it does not appear that he should have reasonably anticipated the disuse and practically the removal of all provisions that may have prevented this accident, if the box company had exercised ordinary care in making use thereof.

It may be that on a new trial it can be shown that the sash could not be made a barrier to the falling of this paper, or that Woolson was aware that such barrier was habitually removed under circumstances making its removal dangerous and likely to result in such accident; or some other face may be put upon the matter from which it may be made to appear that he should be held responsible for this accident. Therefore we do not dismiss the ease as to him; but we reverse it as to him and as to the box company; and affirm it as to the candy company.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    ABORTION — CRIMINAL LAW.
    [Cuyahoga (8th) Circuit Court,
    November 1, 1909.]
    Marvin, Winch and Henry, JJ.
    Norman M. Geer v. State of Ohio.
    1. Acquittal on One Count not a Bar to Second Trial Therein after Reversal of Conviction on other Count.
    When an accused has been-tried for abortion charged in two counts and found guilty upon one and not guilty upon the other, upon his second trial after reversal of the first judgment, it is not error to admit evidence as to his guilt under the charge as to which he was found not guilty at the first trial.
    2. Evidence Controlling Action in Most Important Affairs of Life Convincing Beyond Reasonable Doubt.
    In defining reasonable doubt it is not error to charge the jury that if they would act upon such evidence in the most important affairs of their lives, then it is safe to say that they have been convinced beyond a reasonable doubt.
    3. Jury Charged to Reason Together.
    It is not error to refuse to charge that each juror should continue to vote for acquittal, without fear, so long as he is not convicted beyond a reasonable doubt, but to charge them that they should reason together upon the evidence.
    Error.

      C. L. Selzer and G. M. Anderson, for plaintiff in error.

      John A. Cline, for defendant in error.
   MARVIN, J.

The plaintiff was indicted under Sec. 6815 R. S. (Sec. 12412 G. C.) with the crime of having committed abortion upon the person of one Addie Sutter, on or about July 15, 1908. The indictment was in two counts, the first charging that the offense was committed by the use of an instrument (naming it) and the second charging that the offense was committed by the administration of drugs and medicines. The jury returned a verdict as charged in the first count of the indictment and not guilty as charged in the second count. Judgment was entered upon this verdict. Upon proceedings in error prosecuted in this court that judgment was reversed and the case remanded to the court of common pleas for a new trial. Such a new trial was had and the jury again returned a verdict of guilty under the first count and not guilty under the second count, and judgment was entered upon the verdict. The motion for a new trial made by Geer was overruled, and proceedings in error are prosecuted here to reverse that judgment. It is urged on the part of the plaintiff in error that the court erred in admitting evidence tending to establish the guilt of Geer under the second count of the indictment because it is said that the jury having found him not guilty under this count on the former trial, the question of his guilt or innocence under this count is res adjudicata. This contention is not sound.

The offense of abortion is defined in one section only, and the manner of procuring abortion all set out in that one section and the case comes, as we think, clearly within the case of Jarvis v. State, 19 Ohio St. 585. In that ease Jarvis was indicted for manslaughter. The indictment contained three counts; the first charged that the crime was committed by throwing a glass tumbler against the head of the deceased; the second charged that the crime was committed by striking the head of the deceased with a tumbler in the hand of the accused, and the third count charged that the crime was committed by striking the head of the deceased with the fist of the accused. On the first trial, the jury found the accused guilty as charged in the third count, and not guilty as charged in the first and second counts. The judgment was reversed and a second trial was had, resulting in a verdict of guilty as charged in the first count, and not guilty as charged in the second and third counts. Judgment was entered upon this verdict and the court upheld the judgment, the court saying this case was controlled by the case of Lesslie v. State, 18 Ohio St. 390, 391. The first paragraph of the syllabus in that ease reads:

“Where an indictment is for but one offense, though charged in several counts, in different ways, and the defendant is convicted upon some of the counts and acquitted upon others, the granting of a new trial upon his motion opens the case for retrial upon the counts on which he was acquitted as well as those for which he was convicted.”

The same doctrine is stated in Bishop, Criminal Latv, Sec. 998 (8th Ed.), which reads:

“Wherever a verdict is rendered and the defendant for any cause moves in arrest of judgment or applies to the court to vacate the judgment already entered, he will be presumed to waive any objection to being put a second time in jeopardy; therefore, ordinarily, he may be tried anew.”

It is further urged that the court erred in admitting a catheter in evidence. Before this catheter was offered in evidence it was shown to have been found in the room of Addie Sutter shortly after the offense is said to have been committed. It was shown by the testimony of Dr. Spencer that this instrument is one which could be and sometimes is used for the purpose of procuring an abortion. It is also used for other purposes. This was properly admitted in evidence, for the same reason that if a person was found to be cut or slashed with a knife, and a knife was found shortly after the cutting or slashing in the room where it is charged the cutting or slashing took place, such knife might properly be admitted in evidence.

Again it is urged that there was error on the part of the court in the charge to the jury. One of the complaints made to the charge to the jury is that the court said, if the jury found the accused guilty of having procured an abortion by the use of drugs, the verdict should be guilty under the second count in the indictment. What has already been said shows that there was no error in submitting this question to the jury.

But, it is urged, the court erred in the definition of what constitutes reasonable doubt. It is not claimed that there was not a proper definition of reasonable doubt given, but that in elaborating on this definition the court erred in using this language:

“After applying the same reason and judgment which you would apply to the most important events of your life to the evidence offered in any case, if you feel you are satisfied beyond a reasonable doubt, to a reasonable certainty, so that you would act upon such facts in your own important affairs of life, then it is safe to say that you have been convinced beyond a reasonable doubt. If you would act upon the proof in the most important affairs of your own life, then it would be safe for you to say that the proof has not excluded from your minds a reasonable doubt. Of course, if there is circumstantial evidence, that is, circumstances are to be depended upon to convict of crime, or to prove any fact, it is essential that the circumstances should all look towards the establishment of guilt and be inconsistent with any other inference. So that the circumstances, all taken together, should be consistent with the inferences of guilt, and not consistent with any other inference. ’ ’

There was no erorr in any part of this language of the court. Taken together and in connection with what had been said before this in the charge, it was an admirable statement of the rule which should govern the jury in determining whether a reasonable doubt of the guilt of the accused existed. In argument, it was said that what might be a very important and perhaps the most important affair in the life of one of the jurors, might not be thought by another juror to be the most important affair in his life. This is true, and for the very reason that this is true, the language was well calculated to convey to each juror what should constitute a reasonable doubt, or what should convince beyond a reasonable doubt, because under this charge, each juror was called upon to apply to himself what to him was the most important affair in his life and say whether in relation to such affair, he would act upon this evidence. It is further urged that the court erred in refusing to give the sixth request made by the counsel for the accused. That request reads:

“The defendant is entitled to the consideration and judgment of every member of the jury on the question of whether or not he is guilty as charged in the indictment; and if any member of the jury is not convinced beyond the existence of a reasonable doubt of the guilt of the defendant as charged in the indictment, it is his duty to vote for the acquittal of the defendant and to continue so to do, without fear, so long as he is not convinced beyond the existence of a reasonable doubt that the defendant is guilty as charged in either or both of the counts of the indictment.”

In reference to this the court said:

“Ño. 6 is refused in the language in which it is requested, on the ground that it is misleading. I will say, gentlemen, however, that the defendant is entitled to the consideration and judgment of every member of the jury on the question of his guilt. It is your duty as jurors to consider the evidence as a jury, with the sole end in view of the ascertainment of the question which you are called upon to determine. It is your duty to reason together upon the evidence. It is the duty of each one of you to apply your best reason and judgment, and your best conscience to the evidence, in order that you may discharge the obligation which you have assumed under your oath. ’ ’

This language of the court was eminently proper and required of each juror all that the law requires of him, and while the request as made might have been given without error, still as said by the court it might have been misleading. A .juror might have felt that he must not listen to or in any wise be influenced by the arguments of his fellow jurors, and if a juror had so understood the instruction he would have felt called upon to do that which the law does not call upon him to do. It is proper that the jury should discuss with one another the evidence, and the effect which the evidence should have upon the mind, and when all of this has been done, then of course each juror must act upon his own conscientious conviction. There was no error in refusing to give the sixth request, when such refusal was accompanied by the language used by the court to the jury.

It is further urged that the verdict was not sustained by sufficient evidence, that is, by evidence which should have convinced the jury beyond a reasonable doubt of the guilt of the accused. This contention is not sound. Dr. Burke testified that when he saw Addie Sutter in the hospital, shortly after the offense is charged as having been committed, to the best of his judgment she was suffering from having had an abortion produced upon her. His examination, it is urged, was not as complete as it should have been, to warrant this opinion. The evidence shows that Dr. Burke is a medical man of extensive experience. He held the office of county coroner of this county, and his opinion was entitled to great weight with the jury. Dr. Davis, who saw Addie Sutter while she was in the hospitol shortly after this offense is said to have been committed, says that from his examination she was suffering from the effects of an abortion, produced by an instrument. Emma Martin testifies that on Friday, the 17th of July, 1908, she moved into certain rooms in the same building in which Addie Sutter had her living rooms, at which time she saw Addie Sutter apparently well; that on Sunday, July 19th, she (Addie Sutter) was in bed not able to get out and sent for a doctor, or rather had Mrs. Martin call a doctor by telephone. Addie Sutter did not give her the name of the doctor to be called, but gave her a telephone number. Ten minutes afterwards Dr. Geer appeared. Mrs. Martin asked him if he was the doctor, and he answered he was, and without her showing him where Addie Sutter’s room was or telling him that it was Addie Sutter who wanted him, he went directly to her room. After he had been there some time Mrs. Martin rapped at the door, when the man inside, manifestly Dr. Geer, told her to wait for a few minutes, not to come in then. She did not see the doctor leave, but later she went into the room where she found Addie Sutter in bed and unable to get up.

On July 20th, L. G. Corlett, a police officer, and others, went to the rooms of Dr. Geer, and there found a foetus wrapped in a newspaper; the newspaper being considerably burned and the foetus burned to some extent. Newspapers were being pulled out of the stove when Corlett went in. Among the newspapers wrapped about this foetus or found there in connection with the same was one out of which a part of a column of the same had been cut; the missing part of that paper was found in Addie Sutter’s room. The day-book of Mr. Geer was introduced in evidence. In this book, under date of July 15th, 1908, is found an entry reading “Mrs. Sutter — 1539 Chestnut,” and then follows some hieroglyphics the meaning of which is unknown to us. But that this indicates that Dr. Geer had in some way come into relations with Addie Sutter at this time is clear. That the Mrs. Sutter named in the book is Addie Sutter, is manifest from the fact that the number on Chestnut street appearing in this entry, is the place where Addie Sutter was then living. We are not surprised that the jury should have come to the conclusion, beyond a reasonable doubt, that the foetus which was found at Dr. Geer’s office was taken from Addie Sutter; that this foetus was induced to be discharged from the body of Addie Sutter by an instrument; that the instrument which was found in her room just afterward was suitable for the purpose, and was the one used, and that Dr. Geer having been there with her on Sunday, July 19, 1908, was the person who used this instrument upon her.

The verdict was abundantly sustained by the evidence and the judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


text:
    DESCENT AND DISTRIBUTION — WILLS.
    [Cuyahoga (8th) Circuit Court,
    November 1, 1909.]
    Marvin, Winch and Henry, JJ.

      Henry C. Holmden et al v. Elizabeth J. Craig.
    1. Real Estate of Wife Devised to Husband for Five Years and then in Fee Descends to His Heirs at His Death Prior to Expiration of such Period.
    A wife without children died leaving a will whereby she devised the income of her real estate for five years to her husband and provided that at the end of the five years said real estate should become his in absolute ownership; the husband died within the five years. Held: Said real estate descended to the heirs of the husband.
    2. Intestacy as to Part of Estate.
    One may leave a will and yet die intestate as to part of his property.

      H. H. Johnson, for plaintiff in error.

      Smith, Taft <& Art&r, defendants in error.

       Affirmed, no op., Holmden v. Craig, 83 Ohio St. 483.

   MARVIN, J.

Suit was brought in the court below by Elizabeth J. Craig against the several plaintiffs in error here, alleging that the plaintiff (plaintiff below) is the owner of certain real estate described, and that defendants (plaintiffs in error) each claim to have an interest in the premises adverse to the estate of the plaintiff. The prayer of the petition is to have the title of the plaintiff quieted as against any claim of any of the defendants. The defendants by their third amended answer set out these facts: that one Mary H. Craig was, in her lifetime, seized in fee simple of the premises described in the petition, and being so seized she died; that she was then the wife of one W. E. Craig; that she left no issue of her body; that prior to her death she executed a last will and testament, which was duly admitted to probate. Among the provisions of said will were the following:

“Item 2. I give and bequeath to my said husband W. E. Craig all my personal property of whatever description and wherever the same may be.
“Item 3. I give and bequeath to my said husband W. E. Craig, the use of and all rents collected of any and all my real property, wherever the same may be for a period of five years from the date of my death.
“Item 4. I give, devise and bequeath to my said husband W. E. Craig, all my real property wherever the same may be, however, not to become his in absolute ownership until five years from the date of my death. ’ ’

The said Mary. H. Craig died on December 2, 1903, and the said W. E. Craig died in May 12, 1908.

The defendants below, plaintiffs in error, are the brothers and sisters of the said Mary H. Craig.

The said W. E. Craig left a last will and testament which was duly admitted to probate after his death, in which he in terms devised the real estate described in the petition to the defendant in error, so that whatever title "W. E. Craig had to these, premises at the time of his death is now in the defendant in error.

It is urged on behalf of the plaintiffs in error that W. E. Craig had no estate in these premises except such as he got by virtue of the provisions of the will of the said Mary H. Craig, and that since by her will it was provided that said premises were “not to become his in absolute ownership until five years from the date of my death” and that since he died within five years from the death of his wife, the premises never were his, and that therefore any attempt on his part to dispose of the same by will must go for naught, and that since with the husband’s rights out of the way, the plaintiffs in error are, as the heirs at law of the said Mary H. Craig, the owners of the premises by inheritance from her.

The plaintiffs in error claim, as appears by brief of counsel filed in the ease, to inherit under Sec. 4158 R. S. (See. 8573 G. C.) This section provides for the order of descent as follows:

“When a person dies intestate, having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, devise, or deed of title or gift from an ancestor, ’ ’ etc.

It will be noticed that this section applies only to such real estate as came to the intestate by descent, devise or deed of gift from an ancestor. There is no allegation in this answer that the premises came to Mary H. Craig by descent, devise or deed of gift from anybody. In her, so far as appears, this estate was not ancestral, and will therefore be presumed to have come to her by purchase, in any event not by descent, devise or deed of gift from an ancestor, so that there is nothing in the facts alleged in this answer to bring the descent within the provisions of this section, for these plaintiffs in, error, if they had any title derived by inheritance from the said Mary II Craig, must stand upon their rights as heirs of one who died seized of real estate which came by purchase, that is to say, not by descent, devise or deed of gift from an ancestor. Descent of such lands is provided for in Sec. 4159 R. S. (Sec. 8574 G. C.) This section provides for the descent of lands of one dying intestate, and names as heirs:

“First. To the children of the intestate or their legal representatives.
“Second. If there are no children, or their legal representatives, the estate shall pass to and be vested in the husbands or wife, relict of such intestate.
‘ ‘ Third. If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representatives. ’ ’

It is then only upon the hypothesis that as to whatever estate there was in these lands, other than the right of the husband to the use and rents thereof for the period of five years after the death of Mary H. Craig, she died intestate.

It is urged on behalf of the plaintiffs in error that this section does not apply, because Mary H. Craig left a will, and therefore did not die intestate, and that being so, the husband’s rights are not such as they would have been had she died intestate. But this reasoning applies as well to them as to the husband. It is only when the owner ol lands dies intestate that either becomes the heir under this section of the statute. The definition of the word intestate, as given in Anderson’s Law Directory, is: “Without a will; the status of a person who died without having disposed of his property by means of will, and the condition in which the property itself stands before the law; as intestate, estate. ’ ’

Under this definition it may be said that Mary H. Craig did not die intestate because she left a valid will, but by this will she made no disposition of these premises except an estate in her husband for five years, unless it be held that the husband became an absolute owner by virtue of the will. It is not necessary to determine this question as we view the case, because, if the husband did not become the owner by virtue of the will, then, as to these premises (subject to his five year’s rights)), she died intestate. And to the extent that she died intestate under the provision of this last quoted section of the statute, the premises descended to and became vester in the husband as her heir. The word heir being used in the sense that it means those entitled to the estate by inheritance, because it is the husband who comes first as inheritor, before the brothers and sisters of the intestate, so that the husband, relict, became either the absolute owner of these premises by the tei’ms of the will, or he became the absolute owner by virtue of his inheritance under Sec.' 4159 R. S.

We are cited to the case of Blackman v. Wadsworth, 65 Ia. 80 [21 N. W. 190], the second clause of the syllabus of which reads:

“A widow is not an ‘heir’ to her deceased husband, and as such entitled to a lapsed legacy under the provision of Code 2337.”

Without further going into an examination of this case attention is called to the case of Weston v. Weston, 38 Ohio St. 473, where it is said in express terms that under the circumstances of that case the widow of the testator succeeded to the property under the will as heir at law of the testator.

Whoever, by virtue of law, succeeds to the rights of an intestate in real property, is heir of such intestate, so that a husband upon whom the title to real estate is cast by the death of the intestate, is properly spoken of as the heir of the intestate. However, it is a matter of indifference whether the word heir be the proper term to apply to him who inherits. The section of the statute referred to does provide that under certain circumstances the husband shall become the owner of real estate left by the deceased wife, and in this case, the only argument used against the right of the husband in this property is equally fatal to any claim on the part of the plaintiffs in error, because their rights as well as the rights of those claiming under the deceased husband, are dependent upon the statute which provides for the descent of real estate from one who dies intestate.

That one may die intestate as to certain property and not intestate as to all, is recognized by numerous authorities. Indeed, it seems too plain for argument.

In the case of Bane v. Wick, 19 Ohio 328, the court had under consideration a will in which the testator bequeathed certain property. On the one hand it was claimed that the will disposed of his entire estate; on the other that it disposed of part of his entire estate; on the other that it disposed of part of his entire estate-only; Judge Spalding announcing the decision of the court, begins with these words:

“The only question raised by the pleadings for our consideration, is this: Did Henry Wick, by his last will and testament, dispose of his entire estate? If he did, there is an end of tlie ease, for no one has doubted his right, under all the circumstances, to make a full testamentary disposition of his property. If he did not, then, under the statute of ‘descent and distribution,’ the complaints, as the legal representatives of Matilda Bane, will take the one-eighth part of such intestate estate.” Here recognizing that though one dies leaving a will, he may leave an intestate estate.”

Tn the case of Gillen v. Kimball, 34 Ohio St. 352, it is clearly recognized that one may die leaving a will and still die intestate as to some part of the property.

In Gilpin v. Williams, 17 Ohio St. 397, the second clause of the syllabus reads:

“Where a testator devises to his ‘daughter E, during her natural life, and to her children after her death forever, one-eighth part of his real estate, and there is no provision in the will in respect to a disposition of the remainder in case E shall die without having had issue, and there is nothing in the will showing a contract intention on the part of the testator, E takes a life estate only, although, on the death of E without having had issue, the testator will have died intestate as to the contingent revision of her share, and the same will revert to his heirs general.”

And there are numerous other authorities to the same proposition that one may die leaving a will and still die intestate as to part of his property.

In the case of Doyle v. Doyle, 50 Ohio St. 330, [34 N. E. 166], a husband died leaving a will -which was duly admitted to probate, and leaving a widoiv. No mention was made in the will in any wise of the wife, who, at his death became his widow. She brought suit for dower and a distributive portion of the personal estate. It was urged against her claim that she was not entitled to any dower against her claim that she was not entitled to any dower or distributive portion of it, because she did not come within any of the provisions of the statute entitling her thereto. The provisions being that where a husband dies intestate, his widow shall be entitled to dower and a distributive portion of his personal estate. And the only other provision in reference to the question, is that where any person shall die leaving a widow, and leaving a last will in which some provision is made for such widow, shall have her election, whether to accept the provisions of the will or to take dower and a distributive portion of the personal estate.” ,

Clearly Mrs. Doyle came under neither of these provisions and yet the court say, in the last sentence of the syllabus: “As to her in such case, he is regarded as dying intestate. ’ ’

So that it is recognized by the courts that one may die testate as to a part of his property, and intestate as to the balance, and he may be testate as to certain persons and intestate as to others. For here it is said, that Doyle died intestate as to his vdfe.

In Baker v. Baker, 51 Ohio St. 217 [37 N. E. 125], a will is defined to be a disposition of property to take effect after death.

In Crane v. Doty, 1 Ohio St. 279, a will is defined to be “an instrument by which a person makes a disposition of his property, to take effect after his decease.”

In Bailey v. Bailey, 8 Ohio, 238, this lanuage is used:

“What is a will? In Ohio, it is an instrument in writing signed by the party making the same, or by some other person in his or her presence, and by his or her express direction, attested and subscribed by two or more credible witnesses, and by which the party executing the same, makes a disposition of his or her property, to take effect after his or her death. ’ ’

Of course, this last definition would exclude non-cupative wills, but the wfill under consideration, in this case, not being such, these definitions which are practically alike, may be taken as the true definition of a will.

It has been defined as the means whereby one may dispose of his property, to take effect at his death. Indeed all definitions of a will include the idea that it is a means of disposing of property, to take effect at the death of the testator. We must bear in mind that a will always disposes of property. It is clear, therefore, that a written instrument in the form of a will which makes no disposition of property is not a will. To illustrate: If one were to provide in a writing executed in conformity with the law in relation to the execution of wills, in which the only provision made is in these words, “I will and direct that my son John shall receive no part of my estate at my death,” it would seem clear that this instrument was not a will. It disposes of nothing. It leaves all the property of the deceased undisposed of, and so -the party executing such an instrument die intestate. See Crane v. Doty, supra.

And to the extent that one dies leaving property undisposed of by will, he may properly be said to have died intestate, and it is clearly in this sense that the word “intestate” is used in the statute, and the statute is to be construed to mean as though it read:

When any person shall die leaving no will by which his real estate is disposed of, the same shall descend and pass as follows.

Suppose Mary H. Craig had by her will bequeathed to John Doe the sum of one hundred dollars and had made no other disposition of any property, it could not, with any sort of propriety be said that her real estate would not descend to these persons named in the statute as entitled to the inheritance where one dies intestate.

The result of this reasoning is that we hold that W. E. Craig was the owner of these premises at the time of his death, and that the defendant in error is, by virtue of his will, the owner, as against any claim of any of the plaintiffs in error, and the judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


text:
    TRIAL — WAREHOUSEMEN.
    [Cuyahoga (8th) Circuit Court,
    November 1, 1909.]
    Marvin, Winch and Henry, JJ.
    Thomas Dave Brown et al v. Mrs. Albert Bray.
    1. Petition in Action for Damages against Warehouseman for Injury to Goods Stored Sufficient without Alleging each Item of Damage.
    In an action against a warehouseman for damages to a piano and china closet stored with him, by reason of his-negligence in permitting the varnish on said articles to become checked, the veneering loosened, the ivory on the keys of the piano loosened, its metal rusted, etc., all to her damages in a certain sum, it is not error to overrule a motion to make the petition definite and certain by setting out after each item the amount of damage claimed therefor.
    2. Inference of Negligence to be Removed by Warehouseman.
    If goods are placed in the care of a warehouseman in a certain condition and are returned to the owner in a worse condition and one which would not ordinarily arise without negligence, an inference arises that the goods were damaged by the negligence of the warehouseman and under such circumstances it is not erroneous to charge that such inference of negligence must be removed by the warehouseman.
    3. Charge as to Absence of Party from Court Room.
    Under the facts of this case, the plaintiff having testified by deposition, being absent on a pleasure trip in California, it is not erroneous to charge that “the presence or absence of the parties in the court room should not influence you in the least.”

      4. Apportionment of Costs on Retrial Discretionary with Court.
    Upon reversal and retrial of a cause with the same result, it is not an abuse of discretion to refuse to apportion the cost.

      J. J. McCormick, for plaintiff in error.

      J. A. Fenner, for defendant in error.
   MARVIN, J.

Suit was brought by Mrs. Bray against T. D. Brown and Wm. P. Herig, partners doing business as the Eagle Storage & Moving Company. The petition set out that the defendants were carrying on a business as public warehousemen and movers; that on the 3d day of May, 1905, she placed with the defendant as such warehousemen, for storage, certain articles of furniture, including a piano and a china closet; that when she so placed this property with the defendants, the same was in good condition. She says that this bailment continued until the 3d day of April, 1906, on which day the defendants returned her property to her, but when it was so returned the piano was greatly damaged in “that the varnish and finish of piano was checked; the veneering roughened and loosened; the ivory on piano loosened, the keys would not work, the felt on piano loosened, and metal parts rusted and damaged.”

She says that by reason of this it became necessary to have the piano refinished and repaired, which took from the 3d of April to the 23d of September, 1906, during all of which time she was deprived of the use of the piano. She says, too, that when the china cabinet Was returned to her, the varnish and finish of the same was damaged and ruined by being checked and roughened, and that by reason of the condition of this property, when restored to her, as compared to its condition when delivered to the defendants, she was damaged in the sum of $150.

To this petition the defendant filed a motion asking that the plaintiff be required to make the petition more definite and certain, by stating the various amounts of damage sustained by said plaintiff opposite each item, and the cost or expense thereof.'

Doubtless what was meant was, that the plaintiff be required to make her petition definite and certain, and not “more definite and certain.” The statute authorizes the former and not the latter, because evidently the law-makers supposed that that which was definite and certain need not be made more definite and certain. However, the language used is that often used by pleaders, and will be considered as if it read in the language of the statute.

This motion was properly overruled.

To require the amendment suggested by this motion would have required of the plaintiff to set out specifically what amount she suffered by the fact that ‘ ‘ the varnish and finish of the piano is checked”; what amount she suffered by reason of the fact that “the veneering was roughened and loosened”; and what amount was suffered by her because ‘ ‘ the ivory on the piano was loosened, ’ ’ and so on as to each item. Carried to its logical conclusion, if the defendants were entitled to have such an amendment made, the court might have required that she state just what number of the ivories .were loosed and the amount of damage done to each one of such keys; just what particular pieces of metal were rusted and damaged and the amount she •suffered by the rusting of each one of these several pieces of metal. As well might one be required, in case of a personal injury, where several bones had been broken, to make a statement of what amount of damage the plaintiff would claim by reason of the breaking of each bone, and if, in addition to the breaking of bones there was a claim for the bruising of the body, just how much was claimed by reason of such bruises.

The petition was sufficiently definite to apprise the defendants of what the plaintiff claimed, and to have required more than stated in, this petition would have required the plaintiff to do what would, in most instances, be an impossibility; certainly it would be impracticable for one to state definitely the exact amount suffered in damage by reason of each of these several matters complained of.

The result of the tidal was a verdict and judgment in favor of the plaintiff below, and it is to reverse this judgment that the present proceeding is brought.

It is said the court erred in refusing to grant a new trial, of the plaintiff below, and it is to reverse this judgment that the defendants (the plaintiffs in error) discovered new evidence after the trial.

An examination of the bill of exceptions fails to show what evidence was introduced on the hearing of the motion, so that we are without information as to what such new evidence was.

It is further urged that the damages allowed were excessive and appear to have been given under the influence of passion and prejudice. The damages awarded were $100.

We do not find from the evidence that this amount was so excessive as to show it was given under the influence of passion or prejudice. It is possible that we might have found the domages to have been less, but it was a fair question for the jury, and if properly submitted, as we find it was, we can not say it is clearly excessive.

The other grounds for new trial will be considered in connection with the questions as they arose in the trial.

It is urged that the court erred in its charge to the jury, because it is said that a burden was placed upon the defendants which ought not- to have been so placed. The court said in relation to the burden as follows:

‘ ‘ This denial of the defendants causes the burden of proof to devolve upon the plaintiff to prove the charge against the defendants it makes in the petition by a preponderance of the evidence. ’ ’

Again the court said:

“Now I have stated the burden of proof is upon the plaintiff to prove the allegations upon which liability depends by a preponderance of the evidence. That charge is the negligent failure of the defendants to properly and safely keep those two articles thus stored with the defendants. ’ ’

And. the court further said:

“If the plaintiff has not proved by a preponderance of the evidence that the defendants were negligent, that is, that the defendants did fail to use ordinary care, then your verdict should be for the defendant. If, on the contrary you find that the defendants failed to use ordinary care of these two articles of furniture and that damage resulted to the plaintiff by reason of such negligence or want of ordinary care by the defendants then the plaintiff would be entitled to recover. ’ ’

And again:

“But if you find that the goods had suffered injury while they were stored, then proceed to take up the question whether the plaintiff has proved by a preponderance of the evidence that the defendants were guilty of negligence in the manner of keeping it, which resulted in such injury.”

And again:

“If, on the contrary, you find plaintiff to have proved negligence of the defendants causing injury to her goods, you will then take up the question of what damage under the proof she has shown to have sustained.”

Certainly all this language placed the burden, as it should have been placed, upon the plaintiff below.

The court, however, said to the jury, and this is what is complained of:

‘ ‘ That if you find that the goods stored by plaintiff with the defendants were given into the defendant’s exclusive possession to keep while in storage and the property was returned to the plaintiff in a damaged condition, that is, damaged as compared to what it was when defendants received it, in other words, that the goods had been injured while in storage and it is shown that the injury or injuries are such as do not ordinarily occur to goods thus stored, without negligence, proof of these facts may make a prima facie case against the defendants, justifying the inference of negligence on their part in the manner of keeping the goods in storage, and if this inference arises in the evidence in this case, then it is for them, the defendants, to remove such inference to avoid its operation against them in determining this question of negligence. This, they may do, by showing the injury did not occur through their negligent care of the goods, or they may remove such inference, of it arises, by showing the exercise of such care of the goods, the doing of such things, the keeping in such place, etc., as removes the inference of negligence which may arise in your minds from th'e evidence in this ease. Now if such inference does arise, and if they have removed such inference then I say to you, determine from the evidence in this case without resorting to any such inference, whether or not the plaintiff has shown in the proof by a preponderance of the evidence that the defendants were guilty of negligence causing the injury to her goods to her damage. ’ ’

Now it will be noticed that there is no language of the court which suggests to the jury here that the defendants were bound to remove any inference which might arise by reason of the difference in the condition of the goods when they left the possession of the defendants, from their condition when the defendants received them, by a preponderance of the evidence. Certainly if the goods went into the possession of the defendants in a certain condition, and if when they were returned to the plaintiff they were in a worse condition, and one which would not arise ordinarily without negligence on the part of the defendants every sensible man would draw the inference that there had been negligence, and that inference, the court said, if such inference arose, must be removed. But, as already said, no suggestion is made that it requires a preponderance of evidence to remove it. Counsel for plaintiff in error seems to understand the language of the court as putting a burden upon the defendants to show that they were not guilty of negligence. This, taken in connection with what the court said on the matter of the burden, is not a fair construction of the language. From what the court said the jury might well find that the inference was overcome not hy a preponderance of evidence, but by sufficient evidence to remove the inference. That is, the evidence on each side being equal, and the burden being upon the plaintiff, as the court plainly said it was, the jury following the charge of the court in this regard, must have found that they were not to be influenced by this inference.

There was no error on the part of the court in the charge as to the removal of the inference resulting from the condition of the goods at the time they were restored to the plaintiff.

At the trial in the court of common pleas, the plaintiff was not personally present. She was at Long Beach in the state of California, and her deposition was there taken and used on the trial. The court said in its charge in relation to the use of this deposition:

“I want to say to you gentlemen, give attention to all the testimony in the case. For me to emphasize one particular more than another would probably be erroneous; look to all the proof in the case. I have been requested while arguments have been going forward to charge you something on the question of absence of the plaintiff herself who has testified as to being at the sea shore in California. I say to you simply because requested, I think I need not say it, that the parties may testify by deposition and in such case they lose, no rights by reason of not being present in court, and the presence or absence of the parties in the court room should not influence you in the least. ’ ’

Since the statute provides for evidence to be taken and furnished by deposition, what the court said, up to the last sentence, was undoubtedly correct, It was the business of the jury to consider all the evidence, as well that taken by deposition, even though it were the deposition of a party to the suit, as any other evidence. The last sentence “And the presence or absence of the parties in the court room should not influence you in the least,” perhaps, could not be justified in all eases, because the very absence of a party to the case who could easily be present and testify on a matter of vital importance in the case, might very well be taken into account by the jury. But, in this ease, the language used was not, as we think, prejudicial to the defendants. The deposition shows that the plaintiff was in California on a journey for pleasure. It is by no means a suspicious circumstance that a party having a case involving the small amount involved in this case should not come thousands of miles, and thereby break up an expensive journey taken for pleasure, for the purpose of being present at the trial of the law suit. We think the jury should not have been influenced one way or the other by the fact that this plaintiff did not come home from California to be present at this trial, and therefore that the language used by the court was not prejudicial to the defendants.

Some complaint is made because there was no apportionment of costs in this case, error in the case having been once prosecuted in this court, after a judgment was obtained by the plaintiff below, and reversal had. The matter of costs, if they might have been apportioned at all, was a matter wholly in the discretion of the court, which we do not find was abused, and so we find no error in the record, and the judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.

       Affirmed, no op., Brown v. Bray, 83 Ohio St. 462.