author: MARVIN. J.

text:
    CHARGE TO JURY — RAILROADS—TRIAL—NEGLIGENCE.
    [Lorain (8li) Circuit Court,
    December 28. 1909.]
    Henry, Marvin and Winch, J,T.
    Cleveland, S. W. & Col. Ry. v. Katherine Crandall, Admr.
    1. Knowledge of One Joint User of Wire Poles does not Excuse Other ofDuty of Care Toward Employes of Other.
    When a telephone company by agreement uses the high-tension wire poles of an electric railway, the fact that the telephone company knew that a dangerous current of electricity was leaking from the railroad wire-through the insulators into the poles does not relieve the railway company from its obligation of care to an employe of the telephone companj” who was injured by such negligent leakage.
    2. Instruction Requested Must State Law Correctly.
    A request to charge before argument must staté the law applicable to the case without modification or explanation, and it is not error to refuse-one which does not do so.
    3. The Words “Might Be” in an Instruction may be Ambiguous.
    The words “might he” in a request to charge in substance that if employe of telephone company using poles of railroad company, knew or by the exercise of ordinary care “should have known that the dispatcher’s wires might he charged with a dangerous current of electricity,” etc., are too-uncertain and ambiguous and it is not error to refuse such charge.
    4. Not Error for Court to Voluntarily State Correct Legal Proposition to-Jury before Argument.
    It is not error for the court after refusing to charge an incorrect instruction before argument, to voluntarily state a correct proposition of law covering the point attempted in the instruction requested.
    Error to Lorain common pleas court.
    A. Y. Andrews and Q. A. Gillmore, for plaintiff in error.
    ’ Herrick- & Hopkins and Ingersoll & Stetson, for defendant in-error .
   MARVIN. J.

The relation of the parties to each other here is the reverse to that, in which they stood in the court below. The terms plaintiff and defendant, however, used in this opinion, will refer to the parties as- they stood in the original case.

Suit was brought by the administrator to recover for the alleged wrongful death of Hubert Crandall, which occurred on the third day of August, 1906. At that time Crandall was in the employ of the Elyria Telephone Company, hereinafter spoken of as the telephone company, and the suit was brought against both the Cleveland, Southwestern &. Columbus Railway Co., hereinafter spoken of as the railway company,, and the telephone company, the telephone company, however, was dismissed out of the case, and the action proceeded with against the railway company alone, resulting in a verdict and judgment for the plaintiff.

The petition sets out that the railway company operated an electric railroad from the city of Elyria to Grafton, and that upon the poles of the railway company the telephone company had, by an arrangement with the railway company, its wires stretched. The wires of the railway company carried on said poles consisted of four high tension wires, so-called, on which it transmitted an electrical current of about twenty-two thousand volts for the purpose of propelling its cars. There were three 'of these high tension wires which were insulated by means of glass or porcelain placed on cross bars attached to the tops of the poles. The railway company also carried on said poles wires known as dispatcher wires; these were also carried on insulators which were fastened to the pole close to the sides, one beneath the other, and some six or seven feet below said high tension wires. These dispatcher wires were used for tele-, phone purposes by the railway company, and between, in altitude, said high tension wires and said dispatcher wires, the telephone company maintained a cable.

On the third day of August, 1906, the decedent, pursuant to instructions from the telephone company, went out along the line from Elyria towards Grafton, for the purpose of ascertaining, if possible, the cause of some trouble which the telephone company was experiencing in the use of the cable. He climbed a pole of the railway company on which wires of both companies were maintained, as already described, and he there received a shock of electricity which caused him to fall to-the ground, and resulted within a few hours in his death. The petition further states that the location of these wires of the railway company and the cable of the telephone company was such that if the current from said high tension wires leaked over or through said insulators and passed down the poles toward the ground, there was great danger and probability that it would pass into the dispatcher’s wires and the messenger wires forming said cable, and render the same highly dangerous to the lives of linemen working on such poles, and that these facts, were well known to both of the defendants. The petition further states, that for several days preceding the third day of August, 1906, the railway company negligently and recklessly permitted said high voltage current to leak from said high tension wires into the poles and down and into said messenger or dispatcher wires, or both, and that the plaintiff’s decedent met his death through such negligence on the part of the railway company in permitting said leakage to take place, when it well knew of the same and that said leakage- was likely to cause such injuries as those suffered by the plaintiff’s decedent.

The answer of the railway company admits the employment of the decedent by the telephone company; admits .that it maintained wires on its poles and that the telephone company also maintained wires on said poles, under an arrangement with it, and admits that the decedent met his death at the time alleged in the petition, and denies all other allegations of the petition.

The defendant claims that there was error on the part of the court in admitting any evidence, as against it, over its objection under the petition, and for ground for this claim says that the allegation in the petition that the decedent’s employer (the telephone company), had knowledge of the situation and danger, if there was danger, at the place where the decedent was injured, relieved the railway company from any obligation of care to the decedent. It, of course, admits that if the decedent had been in its employ it would have been required to exercise due care for him, but that its obligation is different to the employes of the company using with it these poles. In support of this claim there is cited to us the case of Cincinnati Gas & Elec. Co. v. Archdeacon, 80 Ohio St. 27. We do not understand that the doctrine announced in that ease sustains the position claimed for it here. The first- clause of the syllabus reads:

“When two companies engaged in enterprises calling for the use of wires to carry electricity arrange for the joint use of a pole to sustain them, each company is, with respect to such use, charged with the the telephone company had knowledge of the dangerous situation at the place where the decedent was injured, the pleadings left this an open question. It is further urged that the verdict was not sustained by the evidence. We are not prepared to say that this claim is true, and without undertaking to review the evidence we reach the conclusion that the jury might well have believed that without any negligence on the part of the decedent, and because of the negligence of the railway company, he received the electric shock which either directly caused his death or which caused him to fall with such force upon the ground as to cause-his death.

Complaint is further made that the court erred in refusing to give in charge to the jury certain requests which the defendant had asked to have given in writing before the argument to the jury.. The first request made, was given. The second, refused, reads, as follows:

“If the Elyria Telephone Company knew that there was constant and continuous danger of a leakage of current over or through the insulators and down the poles of the Cleveland, Southwestern and Columbus Railway Company, on the Grafton line here in question, before the injury and death of said Hubert Crandall, then it owed the duty to Hubert Crandall to notify him of such conditions, unless he by the exercise of ordinary care should know of such dangers; and the Cleveland, Southwestern and Columbus Railway Co. was no't required, in the exercise of ordinary care, to give notice either to said the Elyria Telephone Co., or to said Hubert Crandall of such conditions.”

There was no error in refusing this request. . If this had been given the railway company would have been relieved of the exercise of any care for the safety of the employes of the telephone company while they were working on the poles used in common by the two companies, and with full knowledge on the part of the railway company that the employes of the telephone company were being put in a place of danger on their poles which were rendered dangerous by their negligence.

We think Cincinnati Gas & Elec. Co. v. Archdeacon, supra, fully justified the court in refusing this request.

The third request reads:

“If Hubert Crandall knew or by the exercise of ordinary care for his own safety should have known or foreseen that the dispatcher’s wires herein question might be charged with a dangerous current of electricity, when he climbed the pole at the time in question, and if he could have avoided said wires by the exercise of ordinary care, youi verdict should be for the defendant. ’ ’

This was refused, and properly.

It must- be remembered that when a request is made in writing, to be charged in writing before argument, the court must refuse to give such request, unless, without modification, or explanation, the request properly states the law applicable to the case. If this request had been given, it would have in effect held that if the deceased by the exercise of ordinary care would have known that the dispatcher’s wires might by possibility have had a dangerous current of electricity upon them, it would be negligence on his part not to test them before using. It will be noticed that the words are “might be charged with a dangerous current.” The words “might be” as used in the sentence asked to be charged are susceptible clearly of the meaning “were possibly,” and so it would have been said to the jury that if Crandall knew that these wires “were possibly” charged, that is, that they “might possibly” be charged with the electricity, surely the proposition charged in those words would have been erroneous.

It is true that the words “might be” as here used, are susceptible of the meaning “were probably” or “were likely to be,” but they are susceptible of the other meaning also, and so to have given the charge, as requested, would have been likely to mislead the jury, for we may as well suppose the jury would have been as likely to give the meaning first suggested as that last suggested to these words.

Surely it cannot be said of one that he is negligent because he takes a cup of coffee at a hotel dinner without first testing or having it tested. If he knew facts which authorized the belief that there “might” be poison in the coffee, using the word “might” in the sense of probability, then he would be negligent in drinking the coffee without testing it, but if he only knew what we all know, that the coffee “might” have poison in it, in the sense that it was possible that there was poison in it, then he would not be negligent in drinking it without first testing it. Tf this be not true, then all of us who partake of food or drink, without first testing it, are negligent.

The same reason for refusing to give request No. 3 would justify also the refusal to give Nos. 4, 6, 9 and 11.

The refusal to give No. 5 is justified because it puts upon- the decedent the burden of assuming risks growing out of the negligence not of his own employer, but of another corporation, which is putting-a greater burden upon him than the law requires.

No. 7 was properly refused for the reasons given in saying that the petition stated a cause of action, and is justified, as we think, by Cincinnati Gas & Elec. Co. v. Archdeacon, supra. This would also justify the refusal to give No. 8. Request No. 10 was properly refused because it would require of Crandall that he should have avoided the dispatchers wires independently of any knowledge on his part that they were dangerous.

No. 16 was properly refused under Cincinnati Gas & Elec. Co. v. Archdeacon, supra.

Before the argument the court gave in charge to the jury the following :

“It is not charged in the petition that the defendant railway company was negligent in failing to warn or give notice to Hubert Crandall or his employer of the condition of its wires along the Grafton line at and before the accident, and therefore such failure, if such there was, cannot be considered by you as a negligent act or omission on the part of said defendant railway company.”

Although this was not given upon request of anybody and though the court was not at liberty to refuse to give any request which was made, which properly stated the law applicable to the case, a refusal to give any such request would not be cured by substituting words more satisfactory to the court than those used in the request. However, we have already pointed out that the court was justified in refusing the request made and the matter might well have been left there until after the case was argued, but as what was said by the court here could surely not be complained of by the defendant, because it stated the law on the point as favorably for the defendant as it could be stated, the defendant was not prejudiced by this language of the court though given before argument.

The charge given by the court at the close of the argument of the case was an admirable statement of the law applicable to the case. We think, in every respect, it was not only fair but clear, so that if the result reached was not what it should have been, it was not because of the charge of the court.

Other errors complained of have been examined, but none are found which would justify a reversal of the judgment, and such judgment is affirmed.

Henry and Winch, JJ., concur.

      Reversed, no op., Cleveland, S. W. & C. Ry. v. Crandall, 55 Bull. 395; 83 O. S. 000.


source: Caselaw Access Project

author: ALLREAD, J.

license: Public Domain

text:
    INSURANCE — TAXATION.
    [Franklin (2nd) Circuit Court,
    March 25, 1910.]
    Sullivan, Dustin and Allroad, JJ.

      State of Ohio v. Mutual Life Ins. Co. of New York.
    Insurance Premiums Paid by Mail are Taxable.
    A petition in an action against an insurance company brought by the state to collect taxes on premiums paid in Ohio which alleges that such premiums “were paid to it (company) in the state of Ohio by policy holders by depositing the same within the mails in the state of Ohio at its request and addressed to it at its home office in the city of New York, and which premiums were carried by the mails to the said home office of said company,” states a cause of action under Gen. Code 5432 (R. S. 2745).
    [Syllabus approved by the court.]
    Error to Franklin common pleas court.
    U. G. Denman, Atty. Gen., and J. M. Sheets, for plaintiff in error:
    Cited and commented upon the following authorities: Mutual Life Ins. Go. v. State, 79 Ohio St. 305 [87 N. E. Rep. 259]; 1 Beach, Contracts Sec. 59; 1 Addison, Contracts Sec. 22; 1 Parsons, Contracts (9 ed.) p. 483; Maclay v. Harvey, 90 111. 525 [32 Am. Rep. 35]; 2 Kents, Commentaries p. 447; Johnson v. Sharp, 31 Ohio St. 611 [27 Am. Rep. 529]; 22 Am. & Eng. Enc. Law 1057; United States v. Jackson, 29 Fed. Rep. 503; United States v. Jones, 31 Fed. Rep. 725; Taylor v. Insurance Go. 50 U. S. (9 Iiow.) 390 [13 L. Ed. 186]; Palm v. Insurance Go. 20 Ohio 529; Commomvealth v. Wood, 142 Mass. 459 [8 N. E. Rep. 432] • Commonwealth v. Taylor, 105 Mass. 172; Burton v. United States, 202 U. S. 344 [26 Sup. Ct. Rep. 688; 50 L. Ed. 1057]; McDonald v. Bank, 174 U. S. 610 [19 Sup. Ct. Rep. 787; 43 L. Ed. 1106]; Kennedy v. Kennedy Corp. 32 Misc. 480 [66 N. Y. Supp. 225]; Primean v. Life Association, 77 Hun, 418 [28 N. Y. Supp. 794]; McCluskey v. Life Association, 77 Hun. 556 [28 N. Y. Supp. 931]; Patrick v. Bowman, 149 U. S. 411 [13 Sup. Ct. Rep. 811; 37 L. Ed. 790].
    Arnold, Morton & Irvine, for defendant in error.

      Reversed, Mutual Life Ins. Co. v. State, no op., 83 O. S. 000; 55 Bull. 404.

   ALLREAD, J.

This action was brought in the court of common pleas to recover an amount charged as taxes upon premiums sent by policy holders in Ohio through the mails to the home office of the company at New York City. The Supreme Court, passing upon a demurrer to the original petition, held that the insurance company was not liable. An amended petition was filed and a demurrer thereto sustained in the court of common pleas. The ruling and judgment of that court is now brought here for review. The original petition reviewed by the Supreme Court contained the allegation that the premiums sought to be taxed were “received by it at its home office in the city of New York directly from policy holders, residents of the state of Ohio, and not paid to any agent of the company in the state of Ohio.”

The amended petition, upon which the case now stands, sets forth that the premiums sought to be taxed are those “which were paid to it in the state of Ohio by policy holders by depositing the same-within the mails in the state of Ohio at its request and addressed to it at its home office in the city of New York, and which premiums were carried by the mails to the said home office of said company.”

Counsel for the state contend, and in our opinion, correctly, that the case now made in the amended-petition brings it within the purview of Gen. Code 5432 (E. S. 2745), authorizing the tax assessment.

When the premium money is deposited by request of the insurance company in the mails in this state under proper address, the payment is complete. The money becomes eo instante the property of the insurance company. The risk of transportation is on the company and the money cannot be attached as the property of the policy holder, nor reclaimed by him. The rule of the postal department does not affect property rights. The same legal effect as to the transfer of ownership of the money would arise if it had been sent by messenger or other means of conveyance. The change of property is complete when the money is delivered pursuant to request.

We note the effect given in the opinion of Summers, J., when the case was before the Supreme Court as to the effect of the amendment of 1902, and the statement that the basis of taxation was not thereby changed. But we do not deduce therefrom that under either the original or amended act those premiums were entitled to escape taxation if actually paid in the state to an informal or special agency. It is not a fair deduction from the language and scope of Gen. Code 5432, to say that only premiums paid to licensed or formally constituted agencies in this state are taxable. The fact of their being received in the state implies an agency and brings the premiums so received within the taxing statute.

Some argument has been offered as to the tender or depositing of checks in the mails here to be forwarded. But as we read the petition, that question is not involved. The averment that the premiums were paid by depositing, and so forth, implies the deposit of legal tender. In the common pleas court much, if not controlling, force was accorded by the learned judge to the allegation that the superintendent of insurance demanded of the insurance company a supplementary report of the premiums remitted to it through the mails by Ohio policy holders, and not through any agent of the state, and that such report was accordingly made and forms the basis upon which the tax was laid.

This suggestion is not without weight, but we are of opinion that the superintendent of insurance is not bound by the report in this respect. He is required to examine the report, pass upon its correctness and charge the taxes upon the amount of the. return, and he may, we think, reject the statement as to the manner of payment.

The report was requested undoubtedly by the superintendent of insurance in that form to designate the premiums forwarded by mail in contradistinction to those collected by duly constituted and licensed agents, and to enable him to arrive at the amount of premiums upon which he claimed the right to assess taxes. Now, having the report showing the amount of premiums transmitted by mail, the superintendent of insurance may, upon being satisfied that such premiums were actually received in this state, go beyond the mere admission of the report as to the manner of receipt, and charge the taxes. In the amended petition an allegation is distinctly made that the premiums so reported and upon which the taxes are charged were in fact paid in this state by being deposited in the mails at the request of the insurance company.

We are of the opinion that the state may properly allege and prove the fact as to the place and manner of payment, notwithstanding the form of demand of the superintendent of insurance and the report of the company.

The judgment of the common pleas is, therefore, reversed, and cause remanded with instructions to overrule the demurrer.

Sullivan and Dustin, JJ., concur.


author: SMITH, J.

text:
    LICENSES.
    [Hamilton (1st) Circuit Court,
    April 10, 1909.]
    Giffen, Smith and Swing, JJ.

      Delhi (Vil.) v. Adam Story et al.
    •Ordinance Discriminating Between Vehicles of Same Class is Invalid and Excess Charged may be Recovered.
    An ordinance providing that a license fee of $25 shall he paid by each wagon hauling sand, fire-clay, safes, engines, boilers or logs, while other wagons of the same class pay only $10, is unreasonable and the excess collected may be recovered.

      F. M. Coppock and J. L. Logan, for plaintiff.

      John B. Holmes and John V. Campbell, for defendants.

      Reversed, no op., Delhi v. Storey, 56 Bull. 36; 83 O. S. 000.

   SMITH, J.

The only question raised in the above case is whether or not the ordinance, adopted on February 20, 1907, by the village of Delhi, whereby said village exacted a license fee of $25 for each wagon hauling «and, ñre-ela.y, safes, engines, boilers or logs, and for other wagons of a similar character, a fee of $10, is reasonable.

The object of a license fee is to reimburse a municipality for the •cost of issuing the same and the expense of police supervision, and the right to license and regulate confers no taxing power. Cincinnati v. Bryson, 15 Ohio 625 [45 Am. Dec. 593],

Any discrimination in an ordinance like the one in question against other people of the same class is illegal. It would seem in the case ■at bar that such discrimination exists, and as was brought out in argument at the hearing of the case the excess over and above the $10 ■charged was a tax upon the sand business in the village of Delhi.

We can not but hold, therefore, that where the council exacts a license fee of $10 for two-horse wagons without springs hauling lumber, ice, coal, and other heavy articles, and a fee of $25 for the owners ■of wagons exactly the same, but used in hauling sand, such a difference in the amount of the fee shows a discrimination that is unequal •and unfair.

The defendants in error having paid the entire amount exacted, ■and the court below having overruled the demurrer to the amended and supplemental petition, and having entered judgment in favor of the defendants in error for the excess over and above the license fee of $10, as provided in said ordinance, the same is hereby affirmed.


author: PER CURIAM.

text:
    CONSPIRACY — LIBEL AND SLANDER — LIMITATION OF ACTIONS.
    [Erie (6th) Circuit Court,
    September —, 1907.]
    Haynes, Parker and Wildman, JJ.
    Ed. H. Zurhorst v. Katherine Kroll and C. P. Caldwell.
    1. Damage in an Action for Conspiracy is Gravamen op Action.
    Damages will not be implied from the mere effort to injure one, under a conspiracy to that end, although such effort may consist of declarations which would raise such implication in a suit for libel and slander. Proof of special damage is required, and the damage, not the conspiracy, is the gravamen of the action..
    2. Limitation op Action por Conspiracy does not Apply to Action por Libel and Slander.
    An action for conspiracy and an action for libel and slander are not limited by the same statute of limitation. Where libel and slander is the-means adopted to accomplish the purpose of the conspiracy,, it is but the mere incident and not the gist of the action, and is therefore not. controlled by Gen. Code 11225 (R. S. 4983), limiting the bringing of an action for libel and slander- to one year from the utterance or publication of the defamatory words.
    Error to Erie common pleas court.
    H. C. De Ran, for plaintiff in error:
    Cited and commented upon the following authorities: Brown v.. Mortgage Go. 97 Tex. 599 [80 S. W. Rep. 985; 67 L. R. A. 195]; Wildee v. McKee, 111 Pa. St. 335 [2 Atl. Rep. 108; 56 Am. Rep. 271]; Doremus v. Hennessy, 62 111. App. 391; Hood v. Palm, 8 Pa. St. 237; Doremusv. Hennessy, 176 111. 608 [52 N. E. Rep. 924; 43 L. R. A. 797; 68 Am. St. Rep. 203]; Graham v. Railway, 47 La. Ann. 214 [16 So. Rep. 806;. 27 L. R. A. 416; 49 Am. St. Rep. 366]; Walker v. Cronin, 107 Mass. 555; Ertz v. Produce Exchange, 79 Minn. 140 [81 N. W. Rep. 737; 48-L. R. A. 90; 79 Am. St. Rep. 433] ; Delz v. Winfree, 80 Tex. 400 [16 S. W. Rep. Ill; 26 Am. St. Rep. 755]; Smith v. Nippert, 76 Wis. Sefli N. W. Rep. 846; 20 Am. St. Rep. 26]; Van Horn v. Van Horn, 52’ N. J. Law 284 [20 Atl. Rep. 485; 10 L. R. A. 184]; Jones v. Baker, 7 Cow. (N. T.) 445; 8 Cyc. Law & Proc. 615, 647, 650, 661; McBride v.. Gould, 16 Dec. 241; United States v. Lancaster, 44 Fed. Rep. 896 [10 L. R. A. 333]; McDowell v. Rissell, 37 Pa. St. 164; People v. Childs,. 127 Cal. 363 [59 Pac. Rep. 768]; 3 Ene. of Ev. 407, 435; 10 Am. Dig-1099, 1095; Laning Cyc. Dig. Supp. (1907) col. 103; 2 Laning Cyc. Dig-col. 3342; 6 Am. & Eng. Enc. of Law (2 ed.) 830, 832,, 872,, 875, 877;, 5 Current Law 617.

      H. L. Peake, for defendants in error.
   PER CURIAM.

The action was instituted in the common pleas court by the plaintiff in error against defendants in error, charging them, in much detail, with unlawfully conspiring to injure plaintiff in his reputation and deprive him of the position of United States collector of customs at San-dusky ; and averring that in furtherance of said conspiracy they falsely wrote and published a certain libelous affidavit concerning him and spoke in the hearing of divers persons certain slanderous words. It is claimed that the wrongful purpose of the conspirators was accomplished; that by reason of their acts said official position was lost to him, and that he suffered other injuries, in the way of injury to his good name, pain and humiliation, all to his damage in the sum of $10,000.

The action failed below, the court, at the close of the plaintiff’s evidence, directing a verdict for defendants, and judgment was given accordingly. To reverse this judgment the proceeding is before us.

The petition does not disclose when the acts of the defendants, in the carrying out of their alleged unlawful purpose, terminated; but the case as developed by the evidence failed to show the writing or speaking of defamatory words within the year prior to the commencement of the suit.

The action of the trial court in directing a verdict for the defendants was invoked by a motion based upon the following grounds: (1)

Absence of evidence to sustain the charge of conspiracy; (2) bar of the statute of limitations, and (3) absence of proof of damages resulting from the acts of defendants, either jointly or severally.

No opinion of the trial judge in support of his ruling is furnished us, but we are informed by counsel for plaintiff in error that he based his action on the view that the case was one for slander and libel, and that the action was barred by the statute of limitations of this state, limiting the period for bringing such actions to one year, Gen. Code 11225 (It. S. 4983). Counsel for defendants does not quite concede that this was the sole basis of the decision. But, whatever the views of the trial judge, his decision should not be disturbed if warranted by the character of the action and the evidence.

There was, in our judgment, evidence tending to sustain plaintiff’s averment of a combination or conspiracy, and the first ground of the defendants’ motion was not well taken. The ruling of the court must be supported, if at all, by one or both of the other grounds.

Cases of this general character are not infrequent in the adjudications of this country and England, and the right of action for conspiracy to deprive one of an office or employment or to. injure his business not only by defamation of his character, but by other undue or unlawful means, is cléarly established. The action will not lie, however, for the conspiracy alone. It must be consummated by some act or acts resulting in injury to the plaintiff. But the courts do not hold that the defamation of character, where that is the means employed to accomplish the wrongful purpose of the conspiracy, is anything more than such means. It is no more the gist of the action than are malicious acts of any kind to effect the unlawful purpose of the conspirators. It is distinguished from a libel or slander suit in that it is unnecessary to plead the words of the verbal or written statements made to the injury of the plaintiff or to allege declarations that would sustain an action for libel or slander. It is further distinguishable in this, that a conspirator may be held liable for either the written or spoken words, or the conduct, of his confederates; but one person, not conspiring with another, cannot be held liable for the libels or slanders or other conduct of such other. As to verbal slander, it has been held that there can be no joinder of defendants, because, to quote one of the pioneer judges of our own Supreme Court, “Verbal slander cannot be jointly committed by two or more.” Orr v. Bank, 1 Ohio 46 [13 Am. Dec. 588].

The action for conspiracy, then, and the action for libel or slander, are not so identical in character as to bring both into one category, under the statute of limitations. Gen. Code 11225 (R. S. 4983) limits the bringing of actions for libel or slander to one year from the utterance or publication of the defamatory words; but no section of the statute of limitations so limits the bringing of actions for conspiracy, although the means adopted to accomplish the purpose of the conspiracy be libel or slander. In the one case, the libel or slander is the gist of the action; in the other, it is a mere incident to the accomplishment of the purpose for which the conspiracy was formed.

This distinction is clearly drawn by the supreme court of Texas, in Brown v. Mortgage Co. 80 S. W. Rep. 985 (Tex.), the case especially relied on by plaintiff in error, and upon the authority of which it is said in the brief of his counsel the petition in this case was drawn. It is recognized with equal clearness and supported by exhaustive reasoning in the able case of Van Horn v. Van Horn, 56 N. J. Law 318 [28 Atl. Rep. 669],

To the extent that the petition before us involves and charges a libel and slanders, setting out in haec verba the alleged defamatory written and oral statements, the statutory limitation as to actions for slander and libel would, doubtless, apply, upon failure to prove the alleged conspiracy and an effort to base a judgment on the slanders and libel alone. In view of this double aspect of the petition, the statute of limitations was properly invoked, but if the conspiracy and the accomplishment of its wrongful purpose, to the plaintiff’s injury, was shown, the one-year limitation was not available to bar the action. It is not contended by defendants in error that sufficient time has passed since the accruing of the right to sue, to effect a bar under any other section of the statute. It is probable that Gen. Code 11224 (R. S. 4982) of the statutes is the one applicable to this class of actions as one for “an injury to the rights of the plaintiff not arising on contract and not hereinafter enumerated.”

It is our judgment, however, that the evidence offered to support the claims of the petition does not tend to establish the accomplishment of the purpose of the alleged conspiracy. It tends to show the use of means to reach the desired end, but it utterly fails to show any resulting injury. True, the plaintiff asserts in general words that he lost his office thereby, but this is barely more than an argumentative statement, a claimed conclusion rather than the assertion of a fact, and has no valid force when coupled with his testimony that he filed his resignation with the secretary of the treasury at "Washington, asking for its immediate acceptance, and not claiming that he had been requested by any superior to resign. It is said that the term of his appointment had expired, and that he was not reappointed. He was, however, continuing to hold the office and no successor had been appointed. When we add that the record'fails to disclose any previous assurance by the appointing power that his tenure would be extended by reappointment, or any expression of loss of confidence in him as an official or otherwise, it becomes manifest that his action, so far as proof of loss of office is concerned, fails. There is no evidence that he was- engaged in any other occupation which suffered impairment, or that he received substantial injury in any other respect.

The courts have not held, so far as we are apprised, that damage will be implied from the mere effort to injure one under a conspiracy to that end, although such effort may consist of declarations which would raise such implication in a suit for libel or slander. Proof of special damage seems to be required, and the damage, not the conspiracy, is said to be the gravamen of the action.

We think that the court did not err in instructing the jury to find for the defendants and we find no prejudicial errors, in any other respect.


author: HENRY, J.

text:
    NEGLIGENCE—RELEASE.
    [Summit (8th) Circuit Court,
    October 12, 1907.]
    Winch, Henry and Marvin, JJ.

      Harvey Conrad v. Keller Brick Co.
    Tender Back of Consideration Prerequisite to Repudiation of Voidable Aoreement.
    Tender back of the consideration received for a release from liability for personal injuries is prerequisite to avoidance of a voidable release.
    Error to Summit common pleas court.
    The petition in this case alleges that plaintiff was injured on August 9, 1905, while placing a new knife upon the shaft of a granulator, and that while in the performance of his duties the granulator was started in motion through the negligence of the foreman, without any warning being given, and that as a result he suffered injuries for which he asks judgment.
    Plaintiff further says that the foreman negligently and carelessly started said belt and pug mill (granulator) in motion without being notified by the plaintiff that plaintiff was ready to have the foreman start the same, and without giving plaintiff any sufficient notice that he was about to start the same and without giving to plaintiff any notice whatever that he was about to start said belt in motion, or any opportunity to get off the same before said belt was started.
    To this petition an answer was filed in which it is alleged, among other things, as a second defense, that the plaintiff signed a release, and acknowledged the same before a notary public, reading as follows:
    “In consideration of the sum of two hundred and seventy-five dollars ($275) to me in hand paid by the Keller Brick Company of Cuyahoga Falls, Ohio, I do hereby release and forever discharge said the Keller Brick Company from any and all actions, claims and demands for, upon or by reason of any damages, loss or injury which •heretofore have been or which may . hereafter be sustained by me in consequence of any injury which I received at the plant of the Keller Brick Company, Cuyahoga Falls, Ohio, on or about the ninth day of August, 1905.
    “It is further agreed and understood that the payment of said sum of two hundred and seventy-five dollars ($275) is not to be eonstrued as an admission on the part of said the Keller Brick Company of any liability whatever in consequence of said accident or the injury to me.
    “In witness whereof I have hereunto set my hand and seal this eighth day of September, a. d. 1905. ’ ’
    The defendant averred that by reason of the facts and things set forth in this, its second defense, plaintiff released said defendant from all liability to him by reason of the injuries complained of in this petition, and the plaintiff is now, by reason of the matters and things set forth in this, its second defense, estopped from asserting any claim for the matters and things complained of in this petition against this defendant.
    To this answer plaintiff filed a reply in which he alleges that “Plaintiff further denies that thereafter, to wit, on or about September 8, 1905, plaintiff also received and accepted from defendant as a full and complete settlement and release for all claims for damages and expenses against defendant and arising from such injury the further sum of $275, and denies that he ever received said sum, or any sum whatever, from defendant on account of said injuries, and further denies that by reason of the payment to him of said sum of $275 he released the defendant from all claims for damages against it arising from the injuries set forth in his petition.
    “Plaintiff admits that on said eighth day of September, 1905, the sum of two hundred and seventy-five dollars was paid to him and that he signed what he understood to be a receipt for said payment; but plaintiff denies that said payment was made to him by the defendant, and denies that he ever knowingly signed any paper writing which released or purported to release the defendant from liability on account of the injuries received by plaintiff as set forth in his petition, and plaintiff says that if he signed the receipt and release of which defendant’s amended answer purports to set forth a copy, he signed the same without understanding the true import and meaning thereof, and his signature thereto was obtained by deceit and fraud practiced on-him.”
    He then alleges tha.t he received the sum of $275 by virtue of a contract between an insurance company and the defendant company whereby the employes of said defendant company were insured to some extent against accidents, and that by reason of such arrangement plaintiff was entitled to receive from the insurance company benefits amounting to the sum of $275, and that he signed what he understood to be a receipt therefor. Plaintiff then says that he did not read said paper and could not read the same, and that he signed it relying upon the statements made to himi that the paper was simply a receipt for the payment to him by the insurance company of insurance benefits to which, he was. entitled, and that he was not informed by anything said or read to him, or in any manner whatever, that defendant company was making such, payment, or that said payment was intended to have any effect whatever in the way of releasing said defendant' company from liability for the injuries which plaintiff had received, or that the paper which plaintiff signed as aforesaid purported to release said defendant company from any liability for such injuries.
    On the first trial of this case the court overruled defendant’s; motion for judgment on the pleadings, and a verdict of $1,500 was rendered. On motion the court granted a new trial, and when the case-came on for retrial defendant moved for judgment on the pleadings on the ground of the failure of plaintiff to make tender, and this motion was granted, the court stating that the plaintiff must put the defendant back in the position in which it was before the alleged fraud was perpetrated.
    In deciding this motion the court cited with approval Manhattan Ufe Ins. Co. v. Burke, 69 Ohio St. 294 [70 N. E. Rep. 74; 100 Am. St. Rep. 666], and Could v. Bank, 86 N. Y. 75, 79, the court holding:
    “The compromise agreement unless annulled is an absolute bar to-this action. It is a general rule laid down in the text-books and reported eases that the party who seeks to rescind a contract into which he has been induced to enter by fraud must restore to the other party whatever he has obtained by virtue of the contract. He cannot retain anything he received under the contract and yet proceed in disaffirmance thereof. ’ ’ ■
    R. M. Smith, J. A. H. Myers and G. M. Anderson, for plaintiff...
    Musser, Kimber & Hoffman and L. B. Bacon, for defendant:
    Cited and commented upon the following authorities: Perry v. O’Neil, 78 Ohio St. 200 [85 N. E. Rep. 41]; Columbus■ & Toledo By. v. Steinfield, 42 Ohio St. 449; Cassilly v. Cassilly, 57 Ohio St. 582 [49 N. E. Rep. 795]; Manhattan Life Ins. Co. v. Burke,, 69 Ohio St. 294 [70 N. E. Rep. 74; 100 Am. St. Rep. 666]; 8 Enc. Law & Proced. 531; Could v. Bank, 86 N. Y. 75.

       Affirmed, no op., Conrad v. Brick, Co. 79 Ohio St. 461; affirming, Conrad v. Brick Co. 19 Dec. 593.

   HENRY, J.

This is a personal injury damage case wherein judgment on the pleadings was entered for defendant. The answer pleads a written release, by plaintiff, of his alleged cause of action, for a money consideration paid to him. The reply admits that plaintiff signed said release and received said money but avers that the money was paid to him not by defendant but by an insurance company and not for a release of the cause of action asserted in his petition, but by way of insurance benefits to which he was then informed his injury entitled him. He further alleges that he was unable to read said release, but does not allege that he made any effort to have it read to him. Neither does he tender back the money paid him. On this state of the pleadings the court below applied the rule of the Manhattan Life Ins. Co. v. Burke, 69 Ohio St. 294 [70 N. E. Rep. 74; 100 Am. St. Rep. 666], that a reply alleging a payment or tender of the amount received is not responsive to the answer and is insufficient in law. True, that case was founded on contract, whereas this sounds in tort. But we cannot see that this distinction is material. There are undoubtedly cases where the plaintiff is permitted to ignore in his petition the fact of a pretended release of the liability on which he counts and to withhold repayment of the consideration received therefor. But in Ohio, at least, and with but few exceptions elsewhere, such cases upon analysis are seen to involve contracts that are not merely voidable for fraud, but contracts which are absolutely void, for total failure of consideration as in the Dayton Insurance Co. v. Kelly, 24 Ohio St. 345 [15 Am. Rep. 612]; illegality of consideration as in Insurance Co. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571]; or other like infirmity rendering such agreement invalid, ah initio.

Where, however, as in this case, the contract of release is not void, but merely voidable for fraud, it is incumbent upon the plaintiff, before asserting his cause of action, to which the contract of release so long as it remains in force is a bar, to rid himself of that obstacle by appropriate measures for its avoidance. Tender back of the consideration received is in this ease a prerequisite to such avoidance. Until such tender is made, the contract of settlement, being voidable merely, cannot be treated as a nullity, nor can its terms be contradicted by parol. Cassilly v. Cassilly, 57 Ohio St. 582 [49 N. E. Rep. 795].

Judgment affirmed.

Marvin and Winch, JJ., concur,


author: HURIN, J.

text:
    CRIMINAL LAW — INTOXICATING LIQUORS— WITNESSES. '
    [Wyandot (3rd) Circuit Court,
    February 4, 1910.]
    Hurin, Donnelly and Kinder, JJ.

      State of Ohio v. Charles Hinkelman.
    1. Bulk or Weight of Exhibits no Excuse for Elimination from Record on Review.
    Mere bulk or weight of exhibits offered in evidence on the trial of a criminal case is no excuse for failure to attach to a bill of exceptions or mark for identification on review on the weight of evidence.
    2. Failure to Sign Certificate of Record of Local Option Election Invalidates it as Evidence.
    Failure of the county clerk to sign his certificate of the record of a county local option election showing that the county had voted dry, as required by Sec. 1 of act 99 O. L. 35, constitutes a defect in the certificate invalidating it as evidence; but the contention that the county had in fact voted dry may be sustained by other evidence.
    3. Waiver of Legality of Objection by Giving Wrong Reason for Sustaining Thereof.
    Counsel for accused having given a wrong reason for sustaining an objection to the introduction of evidence offered waives all other reasons therefor whether valid or invalid.
    4. Evidence of Detectives in Liquor Prosecution Having no Pecuniary Interest on Conviction Governed by Same Rules as Other Witnesses.
    Evidence of detectives in a prosecution for violation of the Rose county local option law is governed by the same rules and entitled to the credence to which other witnesses are entitled under like conditions, especially in cases where payment of their compensation,-is not dependent on conviction of accused.
    5. Accused Saloon Keeper’s Testimony Viewed with Caution in Prosecution for Violation of Rose Law.
    Testimony of accused in a prosecution for violating the Rose county local option law, he having been a keeper of a saloon prior to a local option election and having conducted á business-in all respects the same after the county in which he is situated votes dry, may be properly viewed with caution and measured by his bias in his -own favor.
    [Syllabus approved by the court.]
    Error to "Wyandot common pleas court.

      L. M. Bowers, J. A. White and H. H. Newell, for plaintiff in error.

      Meek & Blatter, for defendant in error.

       Affirmed, no op., Hinkelman v. State, 83 O. S. 446.

   HURIN, J.

These eases — thirteen in all — brought by the state against the following defendants, respectively, No. 402, Charles Hinkelman; No. 403, John Snyder; Nos. 404, 405, 406, Ed. Ritter; No. 407, Charles Feeley; Nos. 408, 409, Nicholas "Wagner; No. 410, Frank Haupt; No. 411, Theodore Bolish; No. 412, Joseph Bolish; No. 413, John Scheidegger; No. 414, Anthony Strasser, arose out of alleged violations of the liquor laws applicable to dry territory.

All of the defendants in error were convicted before the mayor and fined in varying amounts. All of these judgments of conviction were reversed by the court of common pleas, on the ground that the trial court erred in overruling the motions-for new trial and that the finding and judgment of the mayor were not supported by the evidence.

In all the cases except those against ITinkelman and Snyder a third ground is assigned, viz., that the mayor erred in restricting the cross-examination of the witnesses 'for the state, W\ B. Drake and J. A. Reasoner. The' state now prosecutes error in this court seeking to reverse the judgments of the mayor. . ,

"While the.cases are .all liquor cases and.many of them are based upon very similar evidence, they appear upon examination to differ in- certain particulars, and for convenience they may be classified in various groups, yet all considered together.

The cases of Charles Hinkelman and John Snyder arose under the search and seizure law, act 98 O. L. 12, this charge being in effect that certain intoxicating liquors, etc.,, were kept in buildings occupied by defendants, and for the purpose of being «sold, furnished or given away as á beverage in violation of the county local option.-Law, act 99 O. L. 35, in Wyandot county. In all the other eases the offense charged is the unlawful selling of intoxicating liquors as a beverage.

In the cases against Ed. Ritter and Nicholas Wagner, two- or three separate sales made within a few minutes of each other are made the basis of separate charges, and in the ease of Joseph. Bolish four such separate sales though originally alleged as separate complaints, were afterwards consolidated by agreement as separate counts in the same indietment.

As the motions for new trials were practically identical in all the cases and as the overruling of these motions by the mayor is assigned in each case as one cause of the reversal of the mayor’s judgment, and as in all of the'cases, the judgments were found by the court of common pleas not to be supported by the evidence, it has been necessary for this court to examine all of the bills of exceptions in order .to determine whether the court of common pleas was justified in so reversing the judgments of the mayor.

An examination of those bills of exceptions shows at once that in three of the cases, 'viz, the Hinkelman, Snyder and Feeley cases, the bills of exceptions were incomplete and did not contain all of the evidence and hence, that the court of common pleas could not, properly reverse any of thesé eases on the weight of the evidence as it assumed to do.

In the Hinkelman ease the bill of exceptions shows on its: face that eleven exhibits were offered and admitted in evidence* none of which, were attached to the bill or filed with the clerk in due form. .,

In the Snyder case, the bill of. exceptions shows that at least fifteen exhibits were, offered and admitted in evidence none of which were attached to the bill or otherwise properly brought before the reviewing court.

It is too well settled in Ohio to merit discussion that a bill of exceptions is not complete unless all exhibits are either attached to it or marked for identification and duly filed with the clerk so that the reviewing court may have all the evidence. Hicks v. Person, 19 Ohio 426, 446; Busby v. Finn, 1 Ohio St. 409. And it is equally well settled that unless such bill of exceptions is complete and contains all of the evidence (including .such exhibits), a reviewing court cannot lawfully reverse the judgment in such case on the ground that it is against the weight of the evidence. Hicks v. Person, supra; Cantwell v. State, 18 Ohio St. 477; Pitts. Ft. W. & C. Ry. v. Probst, 30 Ohio St. 104.

It appears, however, that in the Hinkelman and Snyder cases, the reviewing court decided that the omitted exhibits were too bulky to be conveniently attached and were at any rate useless and therefore should be disregarded.

There is no authority of law of which we are informed that justifies such a conclusion. The mere bulk or weight of an exhibit is no reason for disregarding the express terms of the statute. It is a matter of every day experience for flasks, furniture, machinery, specimens of bricks and all sorts of other heavy materials to 'be admitted in evidence, and the law provides for their attestation as evidence and the disregarding of that law was error.

In the Feeley case, the defendant himself introduced certain bottles as exhibits and though they were of no great bulk •or weight he failed to attach them to the bill of exceptions, and. so in that ease also there was no such bill Before the court as justifies a reversal or a consideration of the bill as to the weight •of the evidence.

But in all of these cases, the alleged error of the mayor in overruling the motions for new trials was assigned as a ground for reversal.

On an examination of the grounds assigned for these motions for new trial, we find that there was no error in the may- or’s refusal to grant a new trial on any of the grounds alleged unless it vas on the ground of the admission or exclusion of evidence which includes .the ground otherwise alleged, that there was an undue restriction of the right to cross-examine plaintiff’s witnesses.

In this connection it may be well to refer to one claim of error which is common to all of the cases now submitted to us except the cases against Joseph Bolish, John F. Scheidegger and Anthony Strasser, and which relates to the admission of evidence. In all the other ten cases it is claimed that the mayor erred in refusing to discharge the defendant because of the failure of proof that the county of Wyandot, had ever voted dry. In the Jos. Bolish, Scheidegger and Strasser cases, the proof on that branch of the case was complete.

In all of these other ten cases the state attempted to prove-the fact by the certificate of the clerk of court as authorized by the statute.

But although that clerk in every case testified that he was: ‘ ‘ Clerk of the court of this county during the local option election held under the Rose law some time last fall,” referring to> the fall of 1908, thereby establishing the fact prima facie under the statute that there has been such an election, and though he testifies that a certificate was forwarded to him from the deputy supervisors of election, showing the result of such election, and that he made a record of that certificate on the journal of the-court of common pleas, and though he read into the record and there is attached to the bill a copy of a certificate of said clerk purporting to contain a copy of such recorded certificate showing that the county had voted dry, yet the clerk failed to sign his own certificate, and so it was claimed there is no certificate: at all showing such election or its result.

Such a certificate is plainly defective, and this defect would bie fatal to the claim of proof on the part of the state as to the-result of that election were it not for two reasons.

In th^e first place, every one of these ten bills of exceptions: shows that at some point in the ease, other evidence was admitted showing that this territory had been voted dry. Usually this was brought out by the defense in the cross-examination of the plaintiff’s witnesses; sometimes it was brought out by the plaintiff in chief.

For instance, in the Snyder ease on page '25 of the bill in the cross-examination of Thomas Agen, the state’s witness, he testified as follows: “They sold beer there — they used to.”

“Q. 1. How long ago? A. Probably just before the saloons closed up, before this dry business commenced.”

“Q'. 42.' That was before they voted under the Eose law in this county? A. Yes, sir.”

■And on page 74, defendant was asked,.-.“'What business were you in previous to the time in which this local option law went into effect? A. I .was in the saloon business.’,’ .

And in the Feeley case on page 79 of the bill: “Q. 73 of Feeley’s Direct Examination: “How does this beer or whatever it was — this temperance beer that you sold to Eeasoner and Drake on the fifteenth, compare in taste with the kind of beer we had .here before.-the county voted against, the use of intoxicating liquors? A. "Well,.if it is kept in good shape .and cold, a fellow can’t tell the difference.”

“Q. 1. (Cross-examination,, page 8Q.) What'business do you say you are in? A. I run a restaurant and soft drink stand.”

“Q. 2. What business were you in previous to the county voting dry? A. I was in the saloon business, tending bar.”

“Q. 5. Are the fixtures in that place the same as they were there previous to the voting of the county dry? A. No, sir. ” • • . ■

These or similar expressions appear in. all of the cases. While the plea of not guilty put in issue every material allegation of the affidavit and .some proof was necessary to establish every such allegation, and while it.is also true that if the result of the election which had been testified to by the clerk independently of his certificate, had been disputed by the defense, such evidence as this might not have been of great weight. Yet that result was not disputed and, in the absence, of any question being made as to the fact that the county voted (jry, but little, evidence was necessary to establish that fact prima facie, and this evidence was in each case supplied By the witnesses.

We are cited in this connection to the case of Finney v. State, 54 Bull. 432, in which a very similar question arose. The certificate there introduced to prove that the county-” had voted dry was not signed by the clerk, but the name of the clerk was copied in typewriting merely. This was relied upon by plaintiff in error as a failure of proof under the statutes, but the Supreme Court did not so regard it and refused permission to file $ petition in error. That case was probably weaker for the state than'the cases now before us for a typewritten signature to a certificate is certainly not such" as the statutes usually contemplate, but the Supreme Court appears to have regarded it as sufficient in the absence of any dispute as to the fact that the county had voted dry.

But for another reason no such proof ’ was necessary in these cases. '

The state had offered what purported to be a certificate of the clerk as to the result of the local option election. That certificate was in due form under the seal of the court, and was complete in every particular except that the signature of the clerk was absent.

Objection was made by the defense to the introduction of this certificate. The court asked on what ground objection was made. Mr. Meek responded: ’“Because it is incompetent.”

We 'claim that it does not lie within the power of the legislature to say what would be prima facie evidence of any fact in a criminal ease. The presumption of evidence is with the defendant forevermore, until conviction.

This ground of objection was properly held by the mayor to be ill taken and the objection overruled.

But having given a wrong reason for his objection, the defendant waived all other reasons under the rule cited in the case of Kent v. State, 42 Ohio St. 426, 430, and as the objection to this certificate was thus waived, the proof of the result of the election was complete.

In the three eases against Joseph Bolish,'John Scheidegger and Anthony Strasser, the clerk’s certificate was duly signed and this question is not raised, and so in all of the thirteen cases, this question is eliminated.

Another objection to the evidence is that in all the cases except those against defendants, Hinkélman and Snyder, the only proof of a sale of intoxicating liquors is the testimony of two detectives, and this appears to have been the principal ground on which the court of common pleas based his judgment of reversal.

It appears not only from the bills of exceptions in all these cases, but from arguments of counsel that, throughout the trials of these cases, there has been a studied and determined effort on the part of' counsel and certain witnesses to belittle the effect of all evidence of detectives and especially of detectives in prosecutions for illegal sales of liquor.

It appears that this disparagement had such great weight with the learned judge .of the court of common pleas, that he refused to give any credence whatever to anything testified to by either of the detectives in any of these cases; and principally because of his strong feeling against this kind of evidence, as appears from his written opinion submitted to us, he reversed all of these cases.

It may be well to say right here that there are certain legal rules relating to evidence which should be enforced in all cases. A liquor case should be tried under exactly the same rules as other cases. No public excitement or popular prejudice can for a moment be allowed to deflect a court from the well recognized rules of practice. Laws are made for the equal protection of all. If there has been a violation of law, it is the duty of all good citizens to aid in the punishment of the offender. To attempt to foster prejudice against officials who seek to enforce law is to nullify popular government. It destroys that protection which each citizen has the right to claim. It is anarchy. If the- law is unjust, it should Be repealed. While it is law, it should be enforced. Each person accused of crime is entitled to a fair trial under rules fixed and unchanging and well known. To attempt to apply one set of rules of evidence to one class of cases and to deny their applicability to other cases is to destroy all respect for law and all safety in reliance on law for the protection of individuals and of the community.

In all of the cases now before us, the state relies upon the evidence of two detectives. The defense has attempted to discredit them.

It is a well recognized principle of evidence that the weight which shall be given to any evidence depends upon its reliability.

In the prosecution of crime, it is often necessary to rely on detective evidence, the evidence of men, who for a time conceal their true characters and circumstances, and do this deliberately for the purpose of misleading those who are suspected of crime. This is necessary because evidence of past crimes is always difficult to obtain and because no one intending to commit a crime or an offense against the law, will do so in the presence of any one who is known to be law abiding and unfriendly to the commission of that crime or offense. It is also necessary because few citizens are willing to incur the ill-will of their neighbors by reporting their violations of law and exposing them to punishment. Such exposure must come generally from strangers.

Detectives, therefore, are necessary, and to reject their evidence simply because they are detectives, and without regard to the inherent credibility of their story is without warrant of law or reason. But the law recognizes the fact that the testimony of any man who habitually deceives his fellowman, is to be viewed with caution. Its weight must depend on the circumstances of each particular case. If his motives can be shown to be bad, his testimony will carry little weight. If otherwise, his testimony may be entirely convincing. Detectives’ testimony, therefore, must be judged exactly as any other evidence, being dependent for its effect on the circumstances under which it is offered.

In the cases before us, the state relies upon the testimony of two detectives who, in each case, testify to the character of the liquor sold, that it was intoxicating.

In each case the defendant who sold the liquor, denies that it was intoxicating. But in no case is it denied that liquor was actually sold to the detectives. In one ease the time is disputed. But in that ease the defendant’s own witnesses corroborate the detective as to the time.

In three of the eases samples of the Beer found by the detectives were analyzed by a chemist and found to be intoxicating. In two of the cases where the possession of intoxicating beer > could not be denied, the excuse'for handling such beer in dry territory was that it was intended for private use and not' for sale. Where the beer had not been scientifically analyzed each defendant denied that it was intoxicating beer and relied upon that defense. Yet in all but one of these cases, the defendant, under oath, testified that he could not tell by the appearance or taste of the beer when it was cold, whether it was intoxicating or not, and he seeks to discredit the' detectives’ testimony by other testimony of the same effect.

Various witnesses are called in the Strasser and Seheidegger cases, and some other's to corroborate the defendants in the claim that temperance beer only was sold the detectives, but none of these witnesses testify to the fact. They can only say that they themselves had not gotten any intoxicating liquor there.

We have then the testimony in each case of two men — detectives so called — who are under pay for ferreting out violations of the liquor laws, but whose pay is proven conclusively, and by the defense in each case, to have no dependence whatever on any conviction for such violation. These men testify in each case that intoxicating liquor was sold them in violation of law. They testify that they know that this liquor was intoxicating, not only by its taste distinguished from so-called temperance beer, but by its effect on their persons, the flushing of the face, the rising of the temperature, the excitement of the nerves.

We have, on the other hand, the absolutely unsupported testimony of the defendant in each case who, while admitting that he sold the beer to the detectives, swears that he sold only temperance beer, and, in the next breath,, swears that there is no difference Between the two kinds of beer, either in appearance or taste or effect, unless possibly when taken in great quantities.

One defendant, Joseph Bolish, is frank enough to admit that there is a great difference in the taste of the tw;o kinds of beer. But he stands aloné among these defendants.

The corroborating witnesses on. whom the defendants rely, usually do swear to the same inability to detect any difference, yet they one and all speak of the intoxicating beer as good beer and many of them do express preference for that kind, and some even are frank enough to admit, with Joseph Bolish and the detectives, that there is a vast difference both in the taste and effect, and some even go so far as-to say, as Chas. Shuler does in the Bolish ease, that temperance beer is “no good. ’ ’

Such evidence as this does not strongly corroborate the cláims of the defendants. Their own evidence is intrinsically weak. Their own witnesses fail to corroborate them as to the fact of the .character of the beer sold to the detectives. They only seek to discredit the evidence of the detectives as to the possibility of recognizing the intoxicating beer by its taste or effect; and all of this evidence bears on its face the effect of a lack of candor and is, in at least one case, expressly discredited by the one witness of them all who appears to be entirely, candid and truthful.

It is true that in some of the eases, witnesses other than the defendants, do seek to corroborate the defendants by testifying that what was sold was not intoxicating beer. But not one. of these witnesses knows as a fact that it was nonintoxicating beer. Their only authority for their assertions is the fact that they had tasted none but “temperance beer” there or that the bottles were labeled “temperance beer,” or that the beer was supposed to be “temperance beer.” Such evidence is absolutely worthless as proof of the character of the beer actually sold.

But if the evidence of the detectives is to be received with caution, what is to be said of the defendants?

The caution justly exercised toward the evidence of detectives is due, as has been said, to the position of apparent bias in which they stand by virtue of their employment — their supposed interest in proving a conviction. The same rule of caution must be applied to each of the defendants. Each by his testimony is seeking to avoid punishment for an alleged offense-against the law, a punishment which may be expressed in terms-of hundreds of dollars. As a defendant he is in law presumed to be innocent until proven guilty. But when he goes on- the witness stand, his testimony must be viewed exactly as that of' any other witness. If he' is in a position to be biased, or if he has a financial interest in the issue of the case, or if his interest would naturally lead him to depart from the truth, his testimony must be viewed with the same caution as that of any other prejudiced person, yet not with discredit unless shown to be suspicious.

How stand these cases then? In one case, the Hinkelman case, there is the additional proof that at the time of the seizure of the goods under the search warrant, the defendant destroyed one or more bottles of liquor. This under Section 4 of the search and seizure act, 98 O. L. 12, was prima facie evidence that the liquor was intoxicating and that it was intended for unlawful sale.

In various other cases a prima facie case was made under Sec. 12 of the same act, that liquors were' kept for unlawful sale, hy the proof of payment of the United States special tax as a retail dealer in intoxicating liquors.

Two detectives who are shown by the defense to have no . financial interest in a conviction — for they receive their pay whether a conviction or an acquittal results — swear that liquor, intoxicating liquor, was sold to them by each of the defendants.

Each of the defendants, interested to the extent of a possible fine of hundreds of dollars, testifies that the sale admittedly made was not a sale of intoxicating liquor, but of something so like it that he cannot tell the difference.

Each of these defendants has put himself under suspicion by conducting a business in all respects like that which he conducted in the same place before the county voted, dry when he admittedly sold intoxicating liquors at the sale place and in tihe same way, and he now seeks to have the court believe that he cannot tell what he is selling, yet swears that it is not intoxi eating.

If any witnesses are ever to be viewed with caution, we think that these defendants have earned that distinction and we are not of the opinion thait the trial court erred in believing the .evidence of the detectives in preference to such evidence as that of these defendants, nor is the so-called corroborating testimony of defendants’ witnesses much stronger. They are one and all habitues of the defendants’ resorts, bound by a well' recognized obligation of comity to support defendants to the utmost extent of their ability and they unfortunately appear to have stretched that obligation of comity to unreasonable bounds; for they, some of them at least, attempt to testify to the most minute details of the conversation and actions of the defendants on particular dates, yet show'an utter inabilityl to recall anything else that occurred on the same occasions or on similar occasions to which their attention was called. Such evidence does not greatly strengthen the defendants’ case.

There are certain of these cases, however, in which the evidence of the detectives is palpably weak. In two of the cases against Ed Eitter, the detectives, testified that one of them bought two glasses of intoxicating beer of Ritter at 5:25 p. m. on June 22 and that the other then — three minutes later, bought two more glasses of intoxicating beer.

On each of these purchases a ease is founded. Strictly speaking, they were separate sales, that is, sales to two different people, but in fact it was all one transaction, and while we would not wish to be understood as laying down a rule applicable to all such cases, we are of the opinion that a conviction is not warranted in both of these cases when the two transactions were practically synchronous.

We are cited by counsel to cases in which it has been held that proof of a single sale is sufficient without proving a series of sales to constitute the offense of unlawfully keeping a place where intoxicating liquors are sold at retail. But her'e the charge is not that of keeping a place but of selling intoxicating liquors, and there should be no double conviction for the same offense. The same criticism is true in the case against Nicholas Wagner. He is convicted of selling intoxicating liquor to J. A. Reasoner at 7:35 p. m. on June 16, and to W. B. Drake, the other detective, at 7:40. on the same evening. In each case one of the detectives, treated the other and then that other immediately treated the first. But separate charges are made for each treat. This seems to be pressing zeal too far.

The same is true of the charges against Joseph Bolish. He is charged with one sale to Drake at 10:25 p. m. on June 16 and another to Reasoner at 10:30 p. m. on the same .day, and with two similar sales on June 15 at 11:25 p. m., and 11:30 p: m., respectively. Here, as in. .the other cases, but on two different evenings, each detective treated the other and was in turn immediately treated by the other..

As in the.cases against Ritter and Wagner, we regard these four alleged offenses as in reality only two, one on June 15, and one on June 16. But in. the case against Joseph Bolish, another question is of importance.. It is claimed that there was an undue restriction of the right, of cross-examining the prosecuting witnesses, and this was error. In this case the defendant’s attorneys attempted to cross-examine the prosecuting witnesses as to their proceedings on the day on which the offense was charged.. They were questioned as to where they had been on that day, what saloons they had entered, what liquors, if any, they had drunk. Objection was made apparently on the ground that this was an attempt to ask for information merely in order to prepare defenses in other cases.

Were we certain that such was the purpose of the questions asked, we might agree with the trial court in his excluding of such testimony. But the questions also bore directly upon the question as to the condition of these witnesses at the time they claimed to have gotten the drinks from Joseph Bolish, whether they were intoxicated then or not. They had testified as to certain.of their actions, the defense had the right to test their veracity by a reasonable cross-examination as to whei’c they had been and what they had done that day.

We are all of us of the opinion that such rigid restriction of cross-examination was error for which this case should be reversed.. The same objection is also made in all of the other cases except those against Hinkelman and Snyder. But in none of these other .cases was there the s.ame strictness exercised. It is.true that in. some of them defendants were prevented by the court from asking how miuch beer was drunk at Kirby on the day in question. But the court then permitted the fullest cross-examination as to what was drunk in Upper Sandusky both before and after the trips to Kirby. As five or six hours had elapsed after the return from Kirby to Upper Sandusky, the question of what had been drunk before that time, and where it was obtained was not material.

Again in some of the cases there was an objection sustained to the cross-examination as to the conduct of Drake in going to Indianapolis on a certain occasion. This was long after the offense for which the defendants were being tried. .

The actions of Drake on that occasion could have no bearing on this case and such cross-examination was properly excluded. From this consideration of these cases a majority of the court is of the opinion that all of these thirteen cases should be reversed except three. '

In the case of the State v. Bolish, the judgment of the court of common pleas reversing the judgment of the mayor will be affirmed on the ground that there was an undue restriction of cross-examination, and because four actions were founded on what were in fact only two transactions.

In the case of the State v. Ritter, No. 405, the judgment of the court of common pleas will be affirmed because the transaction there charged as an offense was the same as that charged in case No. 404.

For the same reason case No. 409, being the case- of State v. Wagner, will be affirmed.

All other cases will be reversed.

Kinder, J., concurs.

DonneJIy, J., dissents.


author: DUSTIN, J.

text:
    LIENS.
    [Franklin (2nd) Circuit Court,
    March 25, 1910.]
    Sullivan, Dustin and Allread, JJ.
    Frank J. Macklin, Rec., v. Miller Improved Gas Engine Co.
    Legality of Mechanic’s Lien Must Appear Affirmatively upon It.
    A mechanic’s lien which does not show affirmatively, either in the statement, contract, or affidavit that the last “labor was done” or “material furnished” within four months from the date of filing is invalid, and the omission cannot be supplied by parcl.
    Error to Franklin common pleas court.

      J. W. Mooney, for plaintiff in error.
   DUSTIN, J.

We regret that we are unable to take the same view of this ease as the common pleas court. It seems a great hardship that the engine company should lose the $2,500 for a failure to state the date of the labor involved in installing the engine in question which completed the contract in “furnishing” the same.

We find nothing in the statement of account, nor in the affidavit nor in the contract, which shows or even hints that the contract may have been completed within four months of the time of filing the affidavit upon which the claim for a lien is based.

On the contrary, the affidavit very explicitly states that the “annexed is a true and correct itemized statement of the amount and values of the labor performed and materials furnished, * * * at the times therein mentioned,” etc.

The statement referred to shbws upon its face that the materials and labor were furnished more than four months before the filing of the affidavit. It is, therefore, prima facie invalid.

Under such circumstances should a party be allowed, by parol, to show that the statement is incomplete, and to supply the deficiency?

In our view such a holding would destroy the whole purpose of the statute so far as it may serve as a notice to others. If a lien invalid on its face may be made valid by oral testimony, the statute is a delusion and a snare to subsequent purchasers and lienholders. It would hamper commercial transactions with the owner and redound to his ultimate .injury, for he would not be able to obtain financial assistance, except by settlement of the lien which may in fact, as well as upon its face, be utterly invalid. It gives the pretended as well as the real lienholder an opportunity to “hold up” all parties concerned. It would also afford an opportunity for collusion between lien-holder and owner to defraud a confiding purchaser or mortgagee. In short, the door would be open to such fraud and injustice that we cannot believe that the legislature contemplated that any such construction should be placed upon the law. As to subsequent purchasers and lienholders, the party filing an affidavit should be estopped to deny the dates or amounts therein set forth.

It may be that he would have the right in equity to correct the same. B-ut this is not such a proceeding. The machine company relies upon the affidavit as it stands and in its answer and cross petition sets forth no errors or omissions, and seeks no corrections or additions.

The facts in this case appeal strongly to us in behalf of the machine company. It seems to have a meritorious claim. ' But, to hold that it has preserved its rights by the affidavit in question, would, we think, be a vicious precedent, and entirely upset the notice feature of the law. ¥e have sought in vain for some fact or phrase that would give us an opportunity to distinguish in claimant’s favor. But it must suffer for the general good of the law. The requirements placed upon it were not onerous. With the facts definitely known, it was very easy to state them. A line or two was all that was necessary to preserve the lien. Omitting the same it must take the consequences.

It is urged that the statute does not require the last date of labor or materials furnished to be given, and authorities are cited in other states holding, under similar statutes, that the date may be supplied upon the trial. We have examined the citations, and find that in every instance the affidavit itself sets forth the fact that the labor and materials had been supplied within the statutory time for a lien. Prima facie, therefore, the lien was good, and the court held under the circumstances that the indefinite might be made certain.

In the case at bar, however, there is no basis for a correction ; for a lien is wholly invalid upon its face; and even under a “liberal construction” we do not see how we can make it good.

We think with the court, in Chappell v. Smith, 40 Neb. 579 [59 N. W. Rep. 110], that the legality of the lien should affirmatively appear in the statement, the contract or the affidavit as filed.

We cite also, Rehrer v. Zeigler, 3 Watts & S. (Pa.) 258; Armstrong v. Chisholm, 100 App. Div. 440 [91 N. Y. Supp. 693]; and the reasoning of the court appeals to us in Shackleford v. Beck, 80 Va. 573, where many cases are reviewed.

Reversed and remanded.

Sullivan, J„ concurs.

Allread, J., dissents.