author: Shields, J.

text:
    PROSECUTION FOR. FORGERY OF A CHECK.
    Court of Appeals for Licking County.
    Burt Cochran v. State of Ohio.
    Decided, October Term, 1915.

      Oriminal Law — Failure to Produce Forged Instrument at Trial of the One Accused of the Forgery — Must he Satisfactorily -Explained — • Confession hy the Defendant Must he Shown to Relate to the Particular Offense Charged.

      1. In a prosecution for forgery, in which a denial has been entered, the defendant is entitled to have the alleged forged instrument produced or its non-production satisfactorily accounted for before secondary evidence as to its contents is admissible, and a mere statement by the prosecuting attorney to the effect that he did not have nor had he seen the instrument to which the indictment refers, ■either before or since the sitting of the grand jury which returned the indictment is not a sufficient explanation of the reason for its ' non-production at the trial.
    2. Statements made by the defendant in the nature of a confession are insufficient upon which to base a conviction of forgery, where it does not appear that the so-called confession was an admission of the forgery by the defendant to the particular instrument upon which the indictment is based.

      J ames F. Lingafelter, for plaintiff in error.

      J. W. Horner, Prosecuting Attorney, contra.
   Shields, J.

Error was prosecuted herein to reverse the judgment of the Court of Common Pleas of Licking County.

One of the errors complained of is that the state, having conceded the loss of the alleged forged check before the sitting of the grand jury finding the indictment herein and before the trial of the plaintiff in error upon said indictment, failed to allege that said check was lost- or destroyed and that upon said trial no proper proof was given of its loss or destruction to authorize the state to introduce the contents thereof.

Under an examination of the bill of exceptions we are of the opinion that no such proper proof was introduced of the loss or destruction of the alleged forged check as to admit of proof of its contents. True, the prosecuting attorney said in answer to an inquiry made by the court that he did not have nor had he seen said check before or since the sitting of said grand jury. This was simply a statement made by the prosecuting attorney.

Courts have uniformly held that on the trial of a person for a forgery the instrument alleged to have been forged must be produced on the trial or its non-production must be satisfactorily accounted for before secondary evidence of its contents is admissible. Here the forgery was denied by the plaintiff in error when on the witness stand; and in a criminal case involving the liberty of a person we think it is not too much to say that the accused is entitled to have the forged instrument produced, or its non-production properly and legally explained.

In this connection it might be stated that while the record shows that the plaintiff in error made statements after his arrest in the nature of confessions, still it does not satisfactorily appear that such alleged confessions related to this identical check, nor does it appear that any diligence was used in searching for and producing said check. It may be that the witness, Parlet, had in mind, and possibly did have the check in question at the time of his conversation with the plaintiff in error, but the answers to the inquiries made by him of the plaintiff in error do not contain an admission of the signing of Parlet’s signature to this check. Under this state of the record we think the court below erred in overruling the objection of the plaintiff in error in permitting secondary evidence of the contents of said cheek to be given to the jury and also in overruling the motion of the plaintiff in error to withdraw said evidence from the jury after given.

As to the action of the court below in overruling the motion of the defendant below to quash said indictment, and in overruling said demurrer to said indictment, we find no error in the action of said court, but for the error hereinbefore referred to this cause will be reversed and said cause remanded for further proceedings.

Powell, J., and Houck, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    FAILURE TO ACT UPON SEEING POSSIBLE DANGER.
    Court of Appeals for Ashland County.
    The Baltimore & Ohio Railroad Company v. George E. Koons, as Administrator of the Estate of Will A. Koons, Deceased.

    Decided, January Term, 1914.

      Negligence — Question of, by the Driver of a Team at a Railway Grossing — Special Finding by Jury Held Not-Inconsistent with General Verdict.

    A special finding by the jury that the decedent could have seen as far as a point named by them in the direction from which the locomotive which struck and killed him was approaching, is not equivalent to a finding of contributory negligence or inconsistent with a general verdict in favor of the administrator, inasmuch as he may have looked but been misled as to the speed of the locomotive or the absence of danger signals upon which he had a right to rely and thus been led to believe he could cross the track in safety.

      Arrel, Wilson, Harrington & DeFord and G. P. Winbigler, for plaintiff in error.

      E. M. Palmer and L. J. Myers, contra.

      Motion for an order directing the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 2, 1914.

   Shields, J.

In this proceeding a reversal is sought of the judgment rendered by the Court of Common Pleas of Ashland County, Ohio, upon a verdict for thé defendant in error in an action for damages for personal injuries alleged to have been sustained by one Will A. Koons at a public highway crossing in the village of Sullivan in said county, which said injuries so received by him resulted in his death, and which were caused by the alleged neglect of the plaintiff in error.

In his second amended petition in the court below, it was alleged by the plaintiff that on the 23d day of January, 1908, the defendant company maintained three tracks that crossed a public highway in said village, one of which was used as a main line, one a side-track and the other a spur track, all passing over said highway east and west, and which highway was a much traveled thoroughfare running north and south through said village, that on said date the defendant company maintained a depot building located a few rods east of said crossing, and a water tank and watering station east of and close to said depot; that on said date the said 'Will A. Koons was driving with a team of horses and wagon along said public highway approaching said crossing from the north; that at the point where said highway crossed said tracks the view to the east side of said highway was obstructed by box ears standing on said spur track, and by other obstructions on defendant’s right-of-way on the north side of said tracks, east of said crossing, all of which was well known to the defendant; that at the time said Koons approached said crossing the weather was dark and cloudy, the wind was blowing hard from the northwest and snow was falling in large quantities and blown in gusts by the wind, all of which tended to obstruct his view as he approached said crossing; that as he drove toward and upon said crossing not knowing of the approach of any train; the defendant ran one of its locomotives with a car attached thereto upon and over said main track at a very high and dangerous rate of speed, omitting to give any signals by bell or whistle or otherwise of the approach of said locomotive and car over said crossing, and failed to maintain a headlight on said locomotive or other light or signal to indicate its approach, and as the said Koons drove on to said crossing, without fault or neglect on his part, the defendant carelessly and negligently ran said locomotive against him and his wagon and violently struck and killed him and demolished his wagon; that the defendant failed to take any precautions whatever for the safety of said Koons and might have avoided striking and killing him by the exercise of ordinary care. Damages in the sum of $10,000 were prayed for.

In its answer the defendant set up two defenses, one being in effect a general denial of the negligence charged,' and thp other being a charge of contributory negligence upon the part of said Koons.

The plaintiff’s reply contained a general denial of the contributory negligence charged.

A verdict of eight hundred dollars was awarded the plaintiff, and by a petition in error filed the case is brought before us for review.

Said petition in error contains numerous assignments of error, but the plaintiff in error specially urges upon the attention of this court what is designated therein as the ninth assignment of error, namely:

“That the general verdict returned by the jury is clearly inconsistent with the special findings of the jury and contrary to the clear weight of the evidence and the law of the case.”

It appears that said- cause was tried at a former term of said common pleas court and the judgment of said court was reversed by the circuit court and on being taken to the Supreme Court on error it -was by said court remanded for a new trial, which resulted as hereinbefore indicated. Upon the hearing-in this court it was stated by counsel for the plaintiff in error that the evidence upon the last trial was substantially the same as upon the first trial, hence the finding made by the circuit court renders it unnecessary to consider the errors assigned here at any length, except as to the legal effect of the special finding of the jury.

At the 'close of the testimony of the plaintiff below a motion was made that the trial judge instruct the jury to return a verdict for the defendant below which was overruled, and said motion was renewed at the close of all the testimony in the case which was likewise overruled, and in overruling said motions it is contended that said court erred. Under the evidence contained in the bill of exceptions, we are of the opinion that the action of the court below in this respect was proper and furnishes no ground of reversible error.

At the request of the defendant below, said court submitted to the jury for answer two interrogatories, t’o be answered and returned as answered, with the general verdict. Such interrogatories and answers were as follows:

First. ‘ ‘ For what distance could Koons have seen engine 2626 approaching the crossing from the east if he had exercised ordinary care in looking in that direction as he drove from the spur track on to the side track?” Answer. “About to the car house.”
Second. “Was the crossing signal by a whistle given as the train approached the car house from the east?” Answer. “We think not.”

The defendant below moved said court for a judgment in its favor on the special verdict and finding of the jury, notwithstanding the general verdict, which was overruled, and judgment was entered on the general verdict returned by the jury. The plaintiff in error contends that by this special finding of the jury the said Koons was guilty of contributory negligence and that the defendant in error was thereby precluded from a recovery in this action. In other words, that this finding of the jury was irreconcilably inconsistent with its general verdict, and that therefore the latter can not stand but must give way to this special finding.

Section 11463, General Code, provides:

“When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of f^ct, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

Section 11464, General Code, provides:

“When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”

In Davis v. Turner, 69 O. S., 101, it is held:

“To be inconsistent with the general verdict as contemplated by Section 5202, R. S., it must appear that the special findings are irreconcilable, in a legal sense, with the general verdict: and to justify the court in setting aside or disregarding the general verdict on the ground that it is inconsistent with such special findings, the conflict must be clear and irreconcilable. ’ ’

While we have read the bill of exceptions in this case we do not feel called upon to enter upon a lengthy discussion of the evidence contained therein in passing upon the question made, namely, the legal effect of this special finding of the jury as bearing upon the question of the alleged contributory negligence of the deceased.

Is the answer to the first interrogatory clearly and irreconcilably in conflict with the general verdict? We think it is not. In C., C. & G. R. R. Co. v. Crawford, 24 O. S., 631, it is held that:

“Ordinary prudence requires that a person in the full enjoyment of the faculties of bearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so, without a reasonable excuse thérefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed. But the omission to use such precautions, by a person injured, will not defeat his action, if, by due diligence in their use, the consequence of the defendant’s negligence would not have been avoided. Nor will the failure to use such precautions be regarded as negligence on the part of the plaintiff, if, under all the circumstances of the case, a person of ordinary care and prudence would be justified in omitting to use them.”

In commenting upon the foregoing decision the judge announcing the opinion in the ease of Traction Company v. Brandon, 87 O. S., 194, says:

“The effect of the entire holding is that the omission to look is not negligence in all eases and as matter of law, and it remains the law of Ohio today, though there are a number of decisions of courts of other states, notably Massachusetts, which appear to hold a more rigid rule. It is the Ohio rule respecting the crossing of a steam road, and, for a much stronger reason, the rule as to crossing a street railway track.”

Did the deceased look to see if a train: was approaching before attempting to go upon and over this crossing? The testimony of several witnesses tends to show that he did, that is, he looked to the east and in the direction that the train was approaching before going upon the main track. True he may not have been able to see for any considerable distance east of the crossing before reaching the main track on account of the box ears standing on the spur track as claimed, but that he was looking east as he drove upon the main track is evident. The jury found that he so looked and could see the train approaching as far east from the crossing as the car house, and it is argued that this finding shows such contributory negligence upon his part as to defeat the right of his administrator to recover. But does the answer to said interrogatory clearly and unmistakably show that he was - guilty of contributory negligence! While 'the answer shows that the deceased could see for the distance mentioned, it does not state or even imply that he did not look. Aside from the testimony referred to in this respect, he may have looked and listened before attempting to pass over the crossing, and the presumption is that he did.

In the case of Interurban Railway & Terminal Co. v. John M. Hines, Admr., 13 C.C. (N.S.), 168-170, which was a case involving the alleged running of a street ear at a street crossing resulting in the death of decedent, it was held that:

“As to whether or not the decedent stopped, looked and listened before attempting to cross the track of the railway company, we are not prepared to say that she did,- and she at least had the right to assume that the plaintiff company in the handling of its cars would exercise ordinary care towards her at this particular time and place under all circumstances. But if the evidence would not show such an inference and was wholly lacking upon this point, there is the legal presumption in her favor that she did look and listen.” Citing B. & P. R. R. Co. v. Landrigan Co., 191 U. S., 461. The same holding was made in 95 U. S., 161; 163 U. S., 353.

He may also have been misled by not hearing any signals or warnings given of the approach of the locomotive which he had a right to anticipate would be given, and supposing and believing that he could cross the track in safety attempted to so cross and was injured. Under such circumstances, could it be claimed that he was guilty of such contributory negligence as would defeat an action to recover? Under the holding in Schweinfurth’s Admr. v. R. R. Co., 60 O. S., 215, we think he ought not be deprived of such right. Whatever the conduct of the deceased may have been, was it not a question for the jury to determine what a reasonably prudent man would and should have done under like circumstances? At best it was a question on which different minds might honestly differ, and it was therefore for the jury to determine whether or not he was guilty of contributory negligence. Railway v. Murphy, 55 O. S., 135; Snell v. R. R. Co., 54 O. S., 197; Traction Co. v. Brandon, 87 U. S., 187.

The finding by the jury was not one of contributory negligence but that the deceased could have seen east of the crossing for a distance as far as the car house. This was a finding of fact — one growing out of a logical rather than a legal deduction from facts. Negligence and contributory negligence are mixed questions of law and fact to be determined by the jury, under proper instructions, so in this case we think that the effect of the special finding of the jury was one of both law and fact, not of law only, and that such finding is not conclusive of the right of the administrator to recover herein. The contention of the plaintiff in error in this respect therefore is not sustained.

It is also urged that the verdict of the jury is clearly against the weight of the evidence and contrary to law. An examination of the bill of exceptions shows no little conflict of evidence given by the respective parties hereto on matters material to the several issues involved, but aside from the former judgment of the circuit court in this respect, the judgment of this court is that the verdict of the jury is sustained by the evidence and that the same is not manifestly against the weight of the evidence or contrary to law.

We have also examined the bill of exceptions with reference to the other errors assigned in said petition in error and we find no such errors in the record as require a reversal of the judgment of the court below.

The judgment of the court of common pleas will therefore be affirmed, with costs. Exceptions.

Voorhees, J., and Powell, J., concur.


author: Gorman, J.

text:
    PROSECUTION FOR KEEPING SALOON OPEN ON SUNDAY.
    Court of Appeals for Hamilton County.
    Henry Kreimer v. State of Ohio.
    Decided, December 6, 1915.

      Criminal Lato — Jurisdiction in a Prosecution tor Keeping Saloon Open on Sunday — Not Lost by Failure to Determine 'Whether it Was the First Offense, When — Section 13050.
    Failure of the record to show, in a prosecution for keeping open on Sunday a place in which intoxicating liquors are sold on other days of the week, that the offense charged was the defendant’s first offense, does not require a reversal of the judgment of conviction, where the affidavit and judgment show it was his first offense, and there is no transcript of the evidence to show that anything to the contrary appeared during the trial.

      John A. Deasy, for plaintiff in error.

      E. 8. Morrissey, contra.
   Gorman, J.

Plaintiff in error, ITenry Kreimer, was charged in an affidavit filed in the Municipal Court of Cincinnati on August 30, 1915, with having knowingly and unlawfully allowed to remain open on the first day of the week commonly called Sunday a certain room in which intoxicating liquors were sold on other days of the week than on Sunday, contrary to the form of statute in such case made and provided.

This was a case involving a violation of Section 13050, General Code, which prohibits places being open on Sunday which are on other days of the week used for the sale of intoxicating liquors.

Upon this affidavit a warrant was issued, and Kreimer was apprehended and appeared in the municipal court on August 30. He asked and obtained a continuance of his case until September 15, 1915. On that day the following entry was made:

“This cause coming on for hearing upon the affidavit and warrant filed herein, defendant being in court and arraigned, pleaded not guilty and court hearing the testimony find said defendant guilty and do order said defendant to pay $25 and costs, but upon further consideration court do order $15 of said fine to be suspended. ’ ’

Section 13050, General Code, among other things also provides for a second offense, for keeping open a place on Sunday where liquors are sold on other days of the week, and that the party convicted shall be fined or imprisoned. Therefore, it appears that if the case were a second offense against Kreimer he would be entitled to a jury trial; and unless the record shows that he waived a jury trial, it would be error to proceed to try him without the intervention of a jury.

The record in this case consists only of the affidavit, the warrant, the entry of continuance and the judgment entry above set out. There is no bill of exceptions, and we have no knowledge of what evidence was adduced on the trial before the municipal court.

Kreimer prosecuted error to the common pleas court, which affirmed the municipal court, and he is now in this court claiming error on the part of the municipal court and the common pleas court, and asking for a reversal of both judgments. He claims that, under Section 54 of the Greenlund act (103 O. L., 239):

“At all trials for offenses under laws or ordinances regulating the sales or traffic in intoxicating liquors the court shall * * * before the trial take testimony to determine whether or not the defendant is a licensee * * # and if it appears that such defendant is a licensee whether such licensee has in fact been convicted of a previous offense under said laws or ordinances; and if the fact be that said licensee has suffered a previous conviction under any of said laws or ordinances, or that a conviction in the case pending will work a revocation of a liquor license granted in this state, the said licensee * * * shall be entitled to a trial by jury.”

Now it is contended by counsel for Kreimer, plaintiff in error, that the record fails to show — as it does — that an examination was made by the judge of the municipal court in Kreimer’s case to determine whether or not he had suffered a previous conviction for a violation of the liquor laws, and that by reason of the failure of the record to disclose such an examination the municipal court had no jurisdiction to hear and determine the ease and impose the penalty upon Kreimer.

There is no presumption of error in the trial of a case, and in order to warrant a reviewing court in reversing a case for error the error must be apparent in the record and prejudicial to the party complaining. The record in this case discloses that Kreimer’s was a first offense. The affidavit shows it to be a first offense, and the judgment and finding also disclose the case to be a first offense. "We have no record of what transpired before the judge of the municipal court as to the examination of Kreimer before the trial, nor of the testimony that was taken on the trial. For all that- appears in the record the judge of the municipal court may have examined Kreimer and other witnesses before the trial and found that the charge made against Kreimer was a first offense. We can not assume that it was the second offense, especially in the face of the record which discloses it to be a first offense.

Judgments of a court are presumed to be regular and valid until they are shown to be irregular or invalid. The municipal court had jurisdiction to try Kreimer, in case it was a first offense, assuming that he was a licensee; but where the record fails to show that he was a licensee, as it does in this case, and where it fails to show that the court omitted to take testimony as to whether or not it was a first offense, no error appears affirmatively in the record that would warrant a reversal of the case.

If the plaintiff in error desired to protect himself in case the offense charged was a second one, it was incumbent upon him to have the record in the municipal court brought into this court so that we might be apprised of the proceedings in that court; and if that record should disclose that it was a second offense and the court proceeded to try him, as it did, without the intervention of a jury, then manifestly the judgment would be erroneous and would call for a reversal.

The record therefore fails to show any error prejudicial to the plaintiff in error which would warrant a reversal of the judgment.

Some question was made in the argument of the ease as to whether or not the defendant had paid his fine and costs, and it was suggested that the case before this court was only a moot ease because of the fact that plaintiff in error could not complain inasmuch as the judgment of' the trial court had been satisfied by the payment of the fine and costs. It is sufficient to say that the record fails to show that the fine was paid by Kreimer and therefore the question is not presented as to whether or not a person who has been convicted of a misdemeanor and has paid his fine, may prosecute error to reverse the judgment.

The judgments of the municipal court and of the common pleas court are affirmed.

Jones (E. H.), J., and Jones (Oliver B.), J., concur.


author: Powell, J.

text:
    RESPONSIBILITY FOR SAFE TRAVEL OVER ROADS BEING IMPROVED BY STATE AID.
    Court of Appeals for Licking County.
    Joseph Brownfield et al v. Leon Clapham.
    Decided, March Term, 1916.

      County Commissioners — Liable for Negligence — Resulting in Injury to a Traveler on a Road Reconstructed by State Aid — Section 2405.

    1. A party suing in tort has the right to join or omit to join the different joint tort feasors as parties to his action for damages.
    2. The duties of the state highway commissioner with reference to the construction of roads by means of state aid are ministerial or advisory, and the responsibility for keeping in a condition for safe travel a road undergoing such reconstruction rests upon the county commissioners, and liability arises against them where a traveler over such road who is injured as a result of negligence by the contractors in the prosecution of the work.

      J. W. Horner, Prosecuting Attorney, and Fitzgibbon, Montgomery (& Black, for plaintiffs in error.

      Smythe & Smythe, contra.
   Powell, J.

This action was brought by the nest friend of the defendant, Leon Clapham, a minor, to recover damages for personal injuries sustained by him. by reason of the alleged negligence of the defendants, the county commissioners of Licking county, Ohio, in the construction of an improved public highway.

The negligence complained of was the stretching of a fence wire across a public road leading from Granville to Newark, and which road was under process of improvement by the construction of a cement track upon said road.

The petition sets out the negligence complained of and the acts out of which the accident grew, and the plaintiff below, now defendant in error, Leon Clapham, was injured.

No question is made as to the injury suffered by the defendant in error, or as to the serious nature of the same.

The plaintiffs in error complain that they are not liable for damages, and urge several reasons why the verdict of the jury, awarding such damages, should be set aside.

The errors charged and insisted upon are:

1. That the contractors who were constructing said improved highway, and who were made defendants to the original petition, had been dismissed from the suit.
2. . That the county commissioners are not liable.
3. That the evidence shows contributory negligence on the part of the plaintiff below.

As to the first error complained of, viz: that Gregg and Pletcher, the contractors, had been dismissed from the suit. We think there was no error on the part of the court in such action; that the petition shows that if there was any liability on the part of Gregg and Pletcher it was because they were joint tort feasors with the commissioners in the acts out of which such accident occurred, and that a party suing in tort has the right to join; or omit to join, thé different joint tort feasors in his action for damages.

It was not necessary to have made Gregg and Pletcher defendants in said action if plaintiff had seen fit to sue the commissioners alone, as he had a right to do; and having such right, we do not think there was error on the part of the court in dismissing them from the action.

The second alleged ground of error is of more difficulty and of more importance, viz: that the commissioners of the county were not liable in damages for the injuries sustained. It is contended that because the road in question was being improved under the supervision of the state aid department the liability, if any, for negligence can not rest against the commissioners, but only against the state highway commissioner, or parties under him, having immediate charge of such improvement work.

Section 2408 of the General Code provides for the liability of county commissioners for acts of negligence in the keeping of public highways in repair. It is contended that this section is repealed by implication by the statutes relating to the construction of public roads by means of state aid, or under the provisions of the state aid statutes. It is not claimed that this section of the statutes is expressly repealed.

Upon examination of the statutes the court is of the opinion that the provisions of law relative to the construction of public highways by means of state aid do not repeal by implication the authority of the commissioners in the construction, improvement and repair of public roads, nor do such statutes relieve the commissioners from liability for not keeping the public road specified in said section in repair. We think that if the acts complained of constitute negliger.ee on the part of the officers having charge of such road, and a liability accrues thereunder, such liability accrues under and by virtue of the provisions of Section 2408; and while the provisions of the statutes relating to the construction of roads by state aid requires that the eon-tract for the improvement should be made by the state highway commissioner, yet it must be made with the consent and approval of the county commissioners, and that all the duties required of the state highway commissioner in the construction of such road are duties which are ministerial or administrative and relate wholly to the expert knowledge which such highway commissioner is supposed to have relative to the construction of such roads; that the responsibility for keeping the public roads in repair while such construction work is in process rests wholly with the commissioners, and that it is their duty to provide for safe travel upon the public highways of the county upon state and county roads.

The court is of the opinion that the commissioners are liable for damages in cases of this kind.

It appears from the record that the plaintiff below, who was a minor eighteen years of age, was riding upon a motor-cycle at the time when the accident complained of occurred; that a fence wire had been stretched across the road, which was in process of improvement, as a barricade to prevent travelers passing over the road while the cement, out of which the improvement was made, was green; that the wire was left bare and unguarded and could not be easily seen by travelers upon such highway; that plaintiff, with a friend, both of whom were riding the same motor-cycle, ran into such wire, and by reason thereof the injuries complained of occurred. Was the act of the commissioners, or the contractors who were working under the supervision of the commissioners and the state highway commissioner, in placing such wire across the road, an act of negligence which would render them liable for damages? The court is of the opinion that it was; that a barricade of this kind should not have been placed upon such road without some notice attached thereto that there was such a barricade; that if damages were sustained by reason thereof a liability ensued on the part of the commissioners; and we think that there was such liability in this case.

We think there was no error on the part of the court below which would justify this court, as a reviewing court, in setting aside the verdict and the judgment rendered thereon.

We have examined the record with particular reference to each error assigned on the part of the plaintiff: in error, and think that the judgment of the court below should be affirmed.

Judgment affirmed.

Shields, J., and Houck, J., concur.


author: Jones (E. TI.), P. J.

text:
    PROSECUTION FOR. FAILURE TO MAINTAIN AN ILLEGITIMATE CHILD.
    Court of Appeals for Hamilton County.
    State of Ohio v. John Bone.

    Decided, February 7, 1916.

      Evidence — Action to Compel Putative Father to Support Child — Competency of Testimony of Mother of the Child_, a Married Woman — • Sections 12970 and 13008.
    1. The wife is a competent witness to testify to the non-access of her recreant husband, in a criminal case against the putative father of her illegitimate child, for failure to provide said child under sixteen years of age, with necessary and proper food, clothing and shelter, under the provisions of Section 12970 of the 'General Code.
    2. The father could have been prosecuted under either Section 12970 or Section 13008 of the General Code, but prosecution under the latter section could not be had in the Municipal Court.

      John V. Campbell, Prosecuting Attorney, Walter M. Loche, Assistant Prosecuting Attorney, Ellis B. Gregg, representing the Ohio Humane Society, for the state.

      John W. Cowell, contra.
    The husband of the prosecuting witness, Mrs. Barber, at the time of the filing of the affidavit in this case had abandoned her and had been missing for nearly three years. Bone, the. defendant, had occupied the relation of husband to Mrs. Barber for about two years, during which time she became pregnant and was abandoned by him. After the- birth of the child he refused to provide for it, and this proceeding was commenced in the municipal court of Cincinnati, to compel him to do so. At the trial of the case the wife and mother of the child was offered as a witness to prove the non-access of her husband, and against the objection of defendant’s counsel was permitted to testify to that fact. It was contended by counsel for defendant that this was error and that the defendant could not be prosecuted under the provisions of Section 12970 of the General Code, but that the prosecution should have been brought under the provisions of Section 13008, which in express terms provides for the prosecution of the father of illegitimate, as well as legitimate children, while Section 12970 does not make such provision. The defendant was convicted; error was prosecuted to the judgment of the municipal court to the court of common pleas, which reversed the municipal court; to the judgment of reversal error was prosecuted to this court.

      Motion for an order directing the Court of Appeals to certify its record in this case, overruled by the Supreme Court, April 25, 1916.

   Jones (E. TI.), P. J.

Defendant was convicted in the municipal court of failure to provide for his seven months’ old child. The court of common pleas, whose action is under review, reversed the judgment. We think it erred in so doing.

There was testimony of several witnesses showing non-access of the recreant husband of Mrs. Barber, the mother of the child. The testimony, together with letters and statements of the accused admitting that he is the father of the child, were sufficient to justify conviction. Every word of the evidence seems admissible and was given by competent witnesses. There can be no question but that the father could have been prosecuted under either Section 12970 or Section 13008 of the General Code, although prosecution under the latter section could not be had in the municipal court.

So finding, it follows that the judgment of the common pleas court will be reversed, and that of the municipal court affirmed.

Jones (Oliver B.), J., and Gorman, J., concur.


text:
    COMMENT ON THE QUALIFICATIONS OF A CANDIDATE FOR PUBLIC OFFICE.
    Court of Appeals for Cuyahoga County.
    Earle A. Foster v. Mayo Fesler and Ten Others.

    Decided, May 22, 1916.

      Libel and Slander — Publications Concerning Candidates for Public Office — Criticism Which is Truthful and Wholesome Not to Be Discouraged — But Defamatory Matter Can Not be Defended on the Ground of Privilege.

    1. Temperate and truthful criticism of the career, ability and fitness of a candidate for public office, and considerate and informing advice to voters as to the best manner in which they can exercise their right of franchise, where given in a proper spirit and for justifiable ends, is a wholesome thing and should not be discouraged in a government bottomed on healthy public opinion.
    2. For a civic league to publish of and concerning a candidate for office that “His ousiness and court record is such that, in our opinion, he is entirely disqualified for the Legislature; he should be defeated,” is not libelous per se.

      Cornelius Maloney, for plaintiff in error.

      Ford, Snyder & Tilden, contra..
    Grant, J.
    Error to the court of common pleas.

       Affirming Foster v. Fesler. 19 N.P, (N.S.), 12,

   The plaintiff sued the defendant in an action for libel. The cause was brought to a trial in the court of common pleas upon' the fourth amended petition, to a jury.

An objection was made to the hearing of any evidence on the part of the plaintiff, on the assigned ground that the petition alleged no sufficient facts to constitute a cause of action against the defendants, or any of them. The objection was sustained.

The defendants then moved for a dismissal of the action. The motion was allowed. The defendants thereupon moved for a judgment in their favor for their costs made. This motion also was granted. The plaintiff moved for a new trial. The motion was denied. The plaintiff prosecutes this proceeding to obtain a reversal of the judgment named, ‘alleging error in the action of the trial court in the respects mentioned, prejudicial to his rights.

• The petition upon which the plaintiff’s action was attempted to be brought to trial declared as upon a false and malicious libel perpetrated by the defendants, it was said, upon and against the plaintiff, who was at the time a candidate before the electors of his cdunty for. nomination to the office of member of the General Assembly of Ohio.

■The defendants were charged, collectively, with being the “executive board” of the Civic League of the city of Cleveland, a body whose function or service, if it is understood,' was to furnish the public, gratis, with advice and information concerning the qualities and fitness of aspirants for office, the particular information and counsel said to be libelous in this instance being published by them, or at their instigation or instance, in the Cleveland Leader, a newspaper.

The libel, iff such it was, is said to have lurked in the following language of the publication: “His business and court record is such that, in our opinion, he is entirely disqualified for the Legislature; he should be defeated. ’ ’

It is contended on the part of the plaintiff that these words ai^e of themselves, and without more, libelous.

Whether they are so or not it is our business now to inquire and determine. Their libelous character and quality, as deduced by the pleader and embodied in the innuendos annexed to them by the petition, are of the tenor and effect that they would be understood by readers of them to mean, and were intended by the defendants to mean, that the plaintiff’s record in the courts and in his business was evidence of his depravity and want of integrity, to such an extent as totally to unfit him for the duties of the office to which he aspired.

Another form which our present inquiry must take is, whether the meaning thus attributed to the published matter is justified by the words themselves; for, of course, the language is not to be broadened by innuendo beyond its plain and ordinarily accepted import, in the absence of circumstances calling for a different meaning to be imputed to it, and no such circumstances are apparent in this ease.

We quite agree with the contention that while a candidate for public office necessarily and properly puts his own record in issue, in order that the people may be honestly served, he does not thereby become- a target for indiscriminate slander from the various mud-batteries always to be encountered on such occasions. A man’s rights as a citizen are not submerged in the slimy pools of partisan politics. His candidacy for the suffrage of his fellows is, or should be, an honorable thing; and it does not authorize letters of marque and reprisal to be issued against him, nor denunciation of him as a legal leper. His reputation otight to be even more valuable to him in that relation, and it may not be falsely and without cause assailed with impunity by the tongue of falsehood or the impassive types of libel. In such case he is entitled to the redress which the law gives persons thus aggrieved, whether his detractors are officious intermeddlers or syndicates of saints posing as the guardians of the public welfare, uplifters at large, one of the two who went up to the temple to pray (not the publican), or just plain campaign liars.

On the other hand, temperate and truthful criticism of his history, his ability and fitness for the place to which he aspires, considerate and informing counsel by those qualified to give it, to the voters whose advantages for coming at the truth of the matter are less influential than theirs — such advice, we say, given in a right spirit and for justifiable ends, is a wholesome thing in a government bottomed on healthy public opinion, and is not to be discouraged. ■ -

To find out in which category the publication complained of falls, we are to examine, carefully, the language used, and find from it, if we can, its real meaning as this would strike the ordinarily reasonable man who, under the circumstances, might have read it. Upon the result of that inquiry we must determine whether the words are or are not libelous of themselves. In order to be so, they must fairly and obviously impute to tbe party complaining of them, first, an offense indictable at law, involving in its perpetration moral turpitude or visitable with an infamous punishment; second, an offensive disease or other disgrace of a social character, importing the exclusion of its victim from reputable society; third, conduct which, if true, would be calculated to injure him in his calling, business trade or profession.

For present purposes, we may at once exclude from this consideration the last two of these classifications, and limit the inquiry to the first of them.

Accordingly, we are told by the petition that the avocation of the plaintiff is that of a plumber.

It does not follow, necessarily, that because a man is a plumber he is plumb. The word has a different derivation. In fact and according to common and daily observation, many people maintain that many plumbers are — to use the language of a, former schoolmaster of ours — “on the contray, quite the reverse.” Their methods of doing their work, and especially in the rather important matter of charging for it, are roundly denounced by the uncharitable, and by some who are charitable. If the half that is commonly said of plumbers and the ways of their craft is to be believed, then many plumbers would, if elected to the Legislature, be uninfluential members, to say the least of the matter, and,-in that view and that sense of the word, be in a degree “disqualified for the Legislature.” Their trade name would in that respect be against them. Is it quite certain that the words used in the publication before us, so far as they purport to go to the plaintiff’s “business record,” when fairly and reasonably read, mean any more than that, to an intending voter whose only wish is to cast his ballot for the best candidate and to do so intelligently and advisedly? If they do not, then the quality of this part of the publication is not libelous of itself and the charge in that respect is not made out.

Or, the words may reasonably be considered in their proper relation to the successes or failures of the plaintiff in his business. Non-successes in business, no matter how pronounced or oft repeated they may have been, are, unhappily, no deterrent to running for office by the man who has achieved them. It is the infirmity of many men — including, we are pained to believe, most seekers for office — that a career of the most ghastly failure in their private affairs is just the thing to fit them to manage the affairs of the public. A half-baked accident who breaks down in business vainly imagines himself just the man to transact the business of everybody else, and seeks votes accordingly. Against such candidacies voters who are not informed should have the counsel of those who are.

It may be that the words of the publication imputing disqualification to the plaintiff have this significance. Of themselves, they do not import more or a worse deduction than that. Neither of the' suppositions to which we have so far referred charges upon the plaintiff a crime, or even an offending against common personal, or business morality, that we can see. Noise' and clamor about plumbers, however inconsiderate or unfounded, derision of the perpendicularity of their charges, may very seriously -cripple a plumber’s influence and usefulness as a member of the Legislature, but do not impute to him, even remotely, as it seems to us, an indictable offense or import moral turpitude in his conduct. And no more does the severest animadversion of his unsuccesses in business, although the fact of them may beget an able-bodied suspicion that he will not be likely to do a service to the public more usefully than he has been doing for himself,' and this suspicion in turn may reasonably engender an opinion which may, with entire propriety, be conveyed to the voters, that he has not the proper qualification for the office which he asks them to give him.

So that, as thus measured, the criticism of the plaintiff’s business record, embodied in the alleged libelous matter, is not obnoxious to the conclusion charged against it, and does not fulfill the canon of what in our law amounts to a libel per se, as appears to us.

The conclusion as to the result to be come at from the plaintiff’s charged 14court record,” as contained in the publication, is of greater difficulty, perhaps, or probably. A discriminating analysis of the language in this respect, however, may serve to clear up the obscurity.

Not every court record is a criminal record, happily-, and on the civil side our courts are full of litigants, brought there from various motives and for different reasons. Some men are inherently quarrelsome, and so get into trouble often, and the court is the resort of themselves or their neighbors as a sort of safety-valve to straighten out their troubles or settle their fights. Others are chronically in financial straits, or habitually-refuse to pay their debts till sued. Others develop litigious habits, seek trouble with their customers, and, of course, find it, and reach the courts for settlement of their rows.

It is quite possible, and indeed quite a frequent thing, within common knowledge, for men to have a court record in some of the respects mentioned, and we can not say that plumbers, more than other men, are exempt from the infirmities or the misfortunes which may and do result in that kind of a court record. Perhaps as often as any other class are they accused of charges bordering on the extortionate. A newspaper last winter, noting the arrival of the first strawberries in January, vouchsafed the single comment that nobody but plumbers were buying them. The accusation in any case may be unjust, but that it is commonly made illustrates the point in hand; and many have made merry at the poor plumber’s expense in this regard. A neighbor of mine, inveighing against his plumber’s bill, remarked that the latter should have been a cavalryman — he was so good on a charge. The astute philosopher who was able to transform a well known proverb into “A little widow is a dangerous thing,” is supposed to have translated ‘ ‘ It never rains but it pours ’ ’ into “It never drains but it costs.” Still plumbers are entitled to be protected in life, limb, property and reputation, as well as all others. That some make them objects of derision does not turn them into legal outcasts.

Such a court record as we have instanced imports no crime, suggests none. It involves no inference of moral turpitude. It does, not tend to disgrace the craft who are parties to -it. On the other hand, it may unfit a party to it for the useful- discharge of a legislator’s duties. Uncharitable people — and indeed prudent people who desire useful service at the hands of their chosen law makers and to have none but men of weight, influence and reputation in that position — all good citizens in fact — will say, and rightly say, that a man muoh in courts — whether from choice or necessity matters not — must be shorn of much of the power and opportunity-for good and effective work as their representative in the Legislature. And so regarding the matter,- it is the. right, and it may be the duty, of men conversant with the facts and the records, to counsel voters who are not otherwise informed in that respect. We can see no impropriety in it, and much less can infer from it a wanton and malicious desire to injure the reputation of one who, by seeking votes, puts that reputation, measured by his record in courts or out. of them, before his wished-for constituents into the limelight of public scrutiny and judgment.

May not, it is asked again, the publication complained of here, be as fairly and naturally and reasonably read in this light, as in the harsher and more censorious aspect- of imputed criminality or disgrace? And would not the common sense of the people, which Guizot so finely called-“the genius of humanity,” so read and apply it?

We think that the people who would be likely to read and heed the counsel which the defendants undertook to give them in the publication — men in the habit of reading such things and capable of reading them soberly and thoughtfully, would be likely also to read them in the light of a charitable rather than a sinful construction of the words employed to impart the advice tendered for their information and guidance in the duties of free electors.

But, it will be asked, may they not read them in the other view? Beyond question there may be men who would so read them. The stormy petrels of society would so read them, men to whom, like Sterne’s Smelfungus, everything looks green, would see in an adverse criticism of one’s business and court record only the inference of. criminality and the devious trail of a scoundrel and a crook, and from their constitution could look at the charge in no other light. Undoubtedly there are such men; but they are, fortunately for the common well-being, in a sad minority, and do not furnish the just standard of judgment upon which the public desire to proceed in voting men into or out of office, or upon which customarily, as we believe, they do proceed, or we should proceed.

Even if the words charged as being defamatory could be regarded as reasonably importing a criminal paper record, and if it is also held that this in turn foreshadows an infamous punishment — on paper, also — it is difficult to see how, on that account, they could be considered as in themselves actionable — no element of moral turpitude being apparent from the language used — since in our time there is practically no real penalty annexed to many a committed crime — .perhaps most of them — the criminal being customarily golden-ruled and let go with a speech of half apology and half compliment, the prevailing tone today, both as to law-makers and supposed law-enforcers, being distinctly deferential to lawlessness.

The result of our examination of the words -alleged to be libelous here, following the analysis to which we have attempted to subject them, is that they are of themselves not reasonably susceptible of the'defamatory meaning charged, and we so find and hold. They purport on the face of them to rest on opinion only, and such opinion being, to our apprehension and according to the rule of right reason, to the innocuous purport mentioned.

If we are right in so finding, then the court below was right in refusing to hear the evidence tendered; because in that case the question is one of law for the court to solve, and there" is nothing to be submitted to a jury. The rule as announced in Hays v. Mather, 15 Ill. App., 30, and adopted in Newell on Slander and Libel, Section 645, is as follows:

“Where the words of an alleged libelous publication are not reasonably susceptible of any defamatory meaning, the court is justified in sustaining a demurrer to the declaration. But if they are reasonably susceptible of two constructions, the one innocent and the other libelous, then it is a question for the jury which construction is the proper one.”

"We are of the opinion that the words here are not capable of the meaning ascribed to them by the innuendo annexed to them in the petition, and that their natural and normal significance does not justify an inference of a crime indictable at law, punishable infamously, and importing moral turpitude. Reasonably construed, they amount to no more than the fair and temperate criticism which, by becoming a candidate, the plaintiff invited and which he ought to bear. By them he has not, as we look at the matter, been libelously assailed. And the voting public were entitled to the saving warning intended by the publication, if the non-criminal record of the plaintiff as a man of business and a litigant warranted it. “By their fruits ye shall know them” is still healthfully true; and we are to remember that it is the plaintiff alone who is insisting that the fruits are forbidden fruits. The defendants and we are more charitable in this respect than he is. He says that his townsmen, the defendants, charged him with being a criminal. We say not.

It follows from this that the intent of the defendants in causing the publication to be made is immaterial. It is said in Mosier v. Stoll, 119 Ind., 244, that if the publication does not contain a libelous charge, no action will lie, no matter what the author intended. But in the case at bar the motives of the defendants unquestionably were proper. They thought they were doing a real service to the public in making the publication, and it is not apparent to us that they were not.

We have endeavored to reach a conclusion in this ease from premises founded in principle. The law applicable is so well settled that it need not be further discussed. It is probably not necessary for us to say that if the published matter were of itself actionably defamatory, the charge could not be met on the ground that it would be privileged.

Upon the best consideration we have been able to give the question before us, and having what we trust is a mindful regard for the rights of all the parties, we are satisfied that no error injurious to the plaintiff is to be found in the record under review, and the judgment complained of is, therefore, affirmed.

Meals, J., and Carpenter, J., concur.


author: Jones (Oliver B.), J.

text:
    AS TO THE VALIDITY OF AN ISSUE OF MUNICIPAL BONDS.
    Court of Appeals for Hamilton County.
    The City of Cincinnati, by Charles A. Groom, its Solicitor, v. George Puchta, Mayor, and William Leimann, Auditor.

    Decided, April 24, 1916.

      Bonds — Validity of an Issue by a Municipality — Where Publication of Notice of Election as to Authorization of Issue — Was Not Published for the Full Statutory Period. — Restriction on Amount of Issue— Where the Authorization is by Majority Vote Only — Sections 3946 and 3952.
    1. Failure of election officials to publish, for the full thirty days required by law, notice that at an approaching election the question of authorizing an issue of municipal bonds will be submitted, does not render the election invalid as to said bonds, where the election was held in other respects in accordance with law and there is abundant evidence that knowledge of an intention to submit said question was brought home to the great body of the electors.
    2. Where a bond issue is authorized by a majority but not by a two-thirds vote, Section 3952 limiting the issue to 2% per cent, of the total value of the city property as listed for taxation is applicable, and the authorization is valid only within the limits of the 2%' per cent, restriction.

      Chas. A. Groom, City Solicitor, for plaintiff.

      Saul Zielonha, Assistant City Solicitor, and John E. Bruce, contra.
    Appeal from the Court of Common Pleas of Hamilton County, Ohio.

       Affirmed without opinion, Cincinnati v. Puchta, Mayor, 94 Ohio State,

   Jones (Oliver B.), J.

This is an action brought by the city of Cincinnati by its city solicitor against the mayor and auditor of said city to enjoin the issue and sale of $250,000 bonds for parks, playgrounds, boulevards and parkway purposes.

The case was heard upon appeal on the petition, an amendment to the petition, the answer of defendants, and upon the evidence.

The board of park commissioners of the city of Cincinnati, on the 15th day of April, 1915, declared by resolution that it was necessary to issue, for the purpose of carrying into effect the powers conferred upon it by law, $1,250,000 of bonds of the city of Cincinnati, and transmitted said resolution to the city council. More than ninety days elapsed after said resolution was received by it without the council having passed the necessary legislation for the issuance of such bonds.

r On the 19th day of August, 1915, the board of park commissioners died a resolution and request with the board of deputy state supervisors and inspectors of elections of Hamilton county, Ohio, requesting said board to submit the question of the issuance of such bonds to the qualified electors of the city of Cincinnati in the manner provided by law for voting on such questions, at the next general election to be held on the 2d day of November, 1915.

Said board of deputy state supervisors and inspectors of elections caused the following notice:

“Election Notice. — Notice is hereby given to the qualified electors of the city of Cincinnati that at the general election to be held in said city on Tuesday, the second day of November, 1915, the question of issuing bonds, by resolution of the board of park commissioners, will be submitted as follows:
“ ‘Shall the city of Cincinnati issue bonds in the sum of $1,250,000 for parks, playgrounds, boulevards and parkways?’ ”

to be published in the Cincinnati daily Times-Star, a newspaper printed in that city, once a week for four consecutive weeks prior to said election, said publication commencing on the 7th day of October, 1915.

The election was so held on November 2, 1915. The total number of registered electors entitled to vote at such election was 101,163; the total number of electors voting at.said election was 96,282; and the total number of votes cast for and against the issuing of said park bonds was 81,064. Forty-seven thousand two hundred and ninety-four electors voted for, and 33,770 voted against the‘issue of said park bonds, the majority in favor of such issue being 13,524 votes.

It appears from 'the evidence that in addition to the legal notice published in the Cincinnati daily Times-Star above referred to, miich notoriety was given to the fact that the question of voting upon the issue of park bonds would be submitted at the general election to be held November 2, 1915, by numerous publications in all of the newspapers of the city and by many public meetings at which the subject was presented by different speak-ers, and that the public generally were fully informed upon the fact that such special election on this question would be held.

In accordance with said proceedings and election, on November 23, 1915, the council of the city of Cincinnati duly passed an ordinance providing for the issue of bonds of said city in the sum of' $1,250,000 for park purposes, which ordinance was duly approved by the mayor and published according to law.

On December 3, 1915, the city auditor, in accordance with law, offered said park bonds to the trustees of the sinking fund of the city of Cincinnati, and said sinking fund trustees then accepted $250,000 of said issue of bonds and rejected the remaining $1,000,000 of said bonds. Said latter amount of bonds were then offered in accordance with law to the board of commissioners of the sinking fund of the school district of the city of Cincinnati, and afterwards to the industrial commission of Ohio, both of which bodies rejected the said bonds. Thereupon the city auditor duly advertised the sale of $250,000 of said bonds according to law. Bids were received for same March 22, 1916, and an award was made to the highest bidders for the sum of $268,175. This action was then brought to prevent the consummation of the sale under said award.

On the same day bids were received by the city auditor, for the sale of $200,000 bonds of the city of Cincinnati to be issued under an ordinance of council passed January 18, 1916, to provide funds to pay the costs and expense of improving and repairing streets, viaducts, bridges and culverts in said city. The original issue provided by said ordinance was $280,000, of which $80,000 was taken by the sinking fund commission on February 3, 1916.

A statement of the bonds already issued by the city and, its net indebtedness thereunder was furnished in evidence, as was also a statement of the total value of all the property of such city as listed and assessed for taxation, from which .statements it is agreed that if both sets of bonds are issued under the awards made by the city auditor on March 22, 1916, as above recited, the net indebtedness of the city, including such bonds, would then be in excess of two and one-half per cent, of the total value of its property, but not in excess of five per cent, of such value as provided in Sections 3941, 3948 and 3952, General Code. .

The questions submitted for decision are:

1. Does the failure to advertise the legal notice of the special election strictly in compliance with General Code 3946 invalidate that election and the bond issue made thereunder.
2. Where the city council fails to issue bonds in accordance with the request of the board of park commissioners, and an election is had thereon by virtue of Section 4064, General Code, does a majority vote in favor of the bonds obviate the restrictions imposed by Sections 3941 and 3952, General Code? In other words, is the limitation of a bond issue authorized by a majority vote in such a.n election two and one-half per cent., or is it subject only to the limitation of five per cent, under the terms of Sections 3948 and 3952, General Code?
3. If such issue is in excess of the limitation allowed should the court enjoin the entire sale, or only so much of said bonds as would make the net indebtedness exceed the limitation imposed by law?

The requirements of Section 3946, General Code, in a municipality where a newspaper is printed, are that thirty days’ notice of an election for the issue of bonds shall be given in one or more newspapers, once a week for four consecutive weeks prior to such election. In this case the legal notice published by the board of deputy state supervisors and inspectors of elections was printed in a newspaper once a week for four consecutive weeks, but the first publication was only twenty-six days prior to the election instead of thirty days as required by law.

The purpose of such a provision of law is to fully advise the electorate of the submission of the proposition to be voted on, that a full expression may be had of the will of the people upon that question. So far as the duty of the election board is concerned, all of the details of the law should be strictly observed, and as to them the provisions found in 3946, General Code, must be considered mandatory; but where the objects to be accomplished have been fully met, and general notice of such approaching election has been had by the electors, and a full vote has been east thereon evidencing such knowledge, the failure of the election officers to comply fully with the requirements of law must be deemed, so far as the election itself is concerned, an irregularity which will not invalidate it.

In this case it was shown that each elector was given a ballot upon the question of issuing these bonds, and considering the well known tendency of many voters to ignore questions of this character and to fail to vote thereon either at general or special elections, a large vote was cast upon the question, compared with the total vote. This in itself shows that the electorate were well informed as to the fact of such special election, and were not in any way prejudiced by the misfeasance of the election officers in ■publishing the legal notice for a period of twenty-six days instead of for the full period of thirty days. The election, therefore, must be held valid.

In Foster v. Scarff, 15 O. S., 532, the court says at page 537:

“We have no doubt that where an election is held in other respects as prescribed by law, and notice in fact of the election is brought home to the great body of the electors, though derived through means other than the proclamation which the law prescribes, such election would be valid.”

To the same effect are: In re Chagrin Falls, 91 O. S., 308, 312; Fike v. State of Ohio, 4 C.C. (N.S.), 81; Harpster v. Brower, 5 C. C., 395; McCrary on Elections, 4th Ed., Section 179; Town of Grove v. Haskell, 24 Okla., 707; Ardmore v. State, 24 Okla., 862.

The question of whether a favorable majority vote on the issue of park bonds provided for under Section 4064 and 4065, General Code, is still subject to the limitation found in Sections 3941, 3948 and 3952, General Code, has been disposed of by the case of Henderson v. Cincinnati, 81 O. S., 27. At the time of the decision of that ease Section 3952 had not been enacted, and the limitation of four per cent, found in Section 3941 was held applicable to an issue of park bonds authorized as was the issue under consideration here. Section 3952 reduces that limit of four per cent, to two and one-half per cent, and under the decision of the Supreme Court referred to such limitation would undoubtedly apply here, where, as in this ease, the bond issue carried by a majority vote and not by a vote of two-thirds.

The question of the legality of any issue of bonds under the proceedings had, has also been discussed by counsel. It is conceded that, so far as the $250,000 of park bonds taken by the board of sinking fund commissioners is concerned, they are within the limitation of two and one-half per cent., and they are, therefore, valid bonds. It is questioned whether there was authority in the board of park commissioners to request, and the city officers to order, the issue of less than the full amount of park bonds authorized which had not been taken by the sinking fund commissioners, viz., $1,000,000. While no positive provision is made in the ordinance authorizing the sale of these park bonds, for selling them at different times in different parcels, it would seem the common-sense view to take of the matter that it was not intended by council that in the absence of immediate need of the full value of $1,000,000 the park board would not have authority to sell an issue of less than that amount sufficient for their needs from time to time. In the opinion of this court, there is no objection to the fact that but $250,000 were advertised and sold in the award under question here. But, as held by the Supreme Court in the Henderson ease, there is nothing in the park bond law that dispenses with the general limitation imposed by Sections 3941, 3948 and 3952, General Code, and as the favorable vote for the issue of these bonds was not the two-thirds vote provided for in Section 3947, General Code, the limitation applicable here must be two and one-half per cent, rather than five per cent, of the total value of the city property. Up to the extent, therefore, of two and one-half per cent., the issue of these bonds would be legal. v

The determination of just what 'sum can be issued is further involved by the fact of the attempted sale of street repairing bonds at the same time. It appears that the ordinance for the issue of the park bonds was prior in time to the ordinance for the issue of street repairing bonds, and because of that fact it would appear to be entitled to precedence. Buf Section 3950, General Code, fixes the time when an indebtedness shall be deemed created or incurred, and the determination of which indebtedness is first incurred is left to the decision of the proper officers of the city as a matter of official action, rather than to the determination of this court upon such presentation as here made, it being understood, however, that no bonds can be issued in excess of the total limitation imposed by law.

A decree may be drawn enjoining the issue and sale of any bonds in excess of the amount fixed by such limitation, which doubtless can be agreed upon by counsel.

Jones (E. H.), P. J., and Gorman, J., concur.


author: Jones (E. H.), P. J.

text:
    RIGHTS OF ONE EXPELLED FROM A HOME FOR THE AGED.
    Court of Appeals for Hamilton County.
    Margaret J. Dennedy and Michael Dennedy v. The St. Theresa’s Home for the Aged et al.

    Decided, February 7, 1916.

      Payment for Maintenance for Life in a Some for the Aged — Constitutes a Binding Contract — Expulsion Entitles an Inmate to Maintain Proceedings With Reference Thereto — Error in Rejecting Evidence as to the Procedure Followed.

    1. Courts will treat as a binding contract an agreement whereby a home and maintenance for life are promised by a home for the aged to one who has paid a specific sum in consideration for such promise.
    2. Where an inmate in such an institution under such a contract is expelled therefrom, it is error to refuse free latitude in showing resulting hardship and damage together with the nature thereof.
    3. It is also error to deny to an inmate who has been expelled the privilege of showing any irregularity of defect in the proceedings leading to the order of expulsion, including the nature of the charges, the hearing thereon, and all things connected with the order of expulsion.

      J. M. Dawson, for plaintiffs in error.

      E. S. Morrissey, L. F. Baiterman and M. F. BoebUng, contra.

      Motion to require the Court of Appeals to certify its record in ’this case overruled by the Supreme Court, May 16, 1916.-

   Jones (E. H.), P. J.

There is a petition in error in tbis ease asking a reversal of the judgment of the superior court dismissing the petition below. The petition was by Margaret Dennedy and her brother, Michael Dennedy, who sought an injunction against the St. Theresa’s Home for the Aged restraining it from ejecting the plaintiff, Miss Dennedy, from the home.

Miss Dennedy is seventy-three years of age. Her brother, Michael Dennedy, in 1911 paid to the St. Theresa’s home the sum of $500 on condition that Ms sister be provided a borne and maintenance for life. Miss Dennedy’s occupancy may have been probationary at first; but sbe bas been there continuously and the record shows to this court’s satisfaction that the contract became absolute and binding on the home not later than March, '1912.

The petition herein contains the necessary averments for injunction. It is not denied that action had been taken by those in charge of the institution to eject this old lady and that efforts were being made and steps being taken to make her leave. But ■it is claimed by way of defense that charges had been preferred, heard by the governing board and by it sustained, and that the order of ejectment was based thereon.

As has been said, the rights of plaintiff are founded on contract, and in such respect differ from those of members of social, benevolent or religious organizations. • Under her contract Miss Dennedy has acquired rights which courts of law must recognize and take cognizance of. But whether she must resort to a court of law for damages or can obtain relief from a court of equity is a question dependent upon the nature of her damage — as to whether or not it can be measured in money, and whether the law court can-afford her adequate relief. See Mulroy v. Knights of Honor, 28 Mo. App., 463.

We call attention also, in this connection, -to the case of The Parliament of the Prudent Patricians of Pompeii v. Marr, 20 App. Cas. D. C., 364. Paragraph 6 of the syllabus is this :

“Although, as a rule, the courts will not interfere to determine a person’s ‘good standing’ in a fraternal or other association, when such good standing is based upon morals, religion, etc., yet when it appears that the governing body of a beneficial association has refused to pay a member’s policy of insurance on the ground that the member was not in good standing and that such good standing was based merely upon the payment of dues and that such dues had been paid, the courts will not hesitate to take cognizance of the matter.”

We quote from the opinion in this ease the following pertinent paragraphs:

Pages 374-5: “Even if it could be held that in an incorporated association, such as the appellant is, a by-law could be sustained which would prohibit recourse to the ordinary tribunals of law, in regard to which we entertain very grave doubt; and even if in a voluntary, and especially, a religious organization, by-laws and regulations for the discouragement of litigation have been upheld, yet most undoubtedly, in order to preclude one from resorting to the ordinary tribunals of the land for the enforcement of purely civil contracts, there must be some express and specific agreement shown for the substitution of some other mode of settlement. No such agreement is shown here; there is no mode pointed out by the pleas for the settlement of claims like that of the appellee ‘in the regulcvr channels of the order.’ It is not shown that the appellees or George Marr, agreed not to have recourse to the courts in eases like the present. He who would oust the courts of the land of their ordinary jurisdiction, must show with specific distinctness what substitute therefor ,has been established; and it is not shown by the pleas in the present case that any officer or tribunal has been established to pass upon this class of claims.”
Pages 375-6: “Courts of law, it is true, will not ordinarily concern themselves with the question of the good standing of members of social, benevolent and religious organizations. Matters of morals, or religion, or dogma, or discipline, or gentlemanly conduct, must be left to these organizations to be settled as best they can in their own way. But good standing, with reference merely to a civil contract, and which depends on the payment of dues to the organization, is a thing of which the civil courts will not hesitate to take cognizance.”

In further support of the principle involved here and upon which plaintiffs rely for equitable relief, we quote from High on Injunction:

Section 30: “ The mere existence of a remedy at law is not in itself sufficient ground for refusing relief in equity by injunction. Nor does the existence or non-existence of a remedy at law afford a test as to the right to relief in equity. To deprive a plaintiff of the aid of equity by injunction, it must also appear that the remedy at law is plain and adequate; in other words, that it is as practical and efficient to secure the ends of justice and its proper and prompt administration as is the remedy in equity. And unless this is shown a court of equity may lend its extraordinary aid by injunction, notwithstanding the existence of a remedy at law.”
Section 22: “By irreparable injury is not meant that the injury is beyond the possibility of repair by money compensation, but it must be of such a nature that no fair and reasonable redress may be had in a court of law, and that to refuse the injunction would be a denial of justice.”

And Joyce, in his work on the same subject, says, Section 36:

“The injury is irreparable when it is of such a nature that the injured person can not be adequately compensated therefor in damages, or when the damages which may result therefrom can not be measured by any certain pecuniary standard.”

This action is based on contract, as we have heretofore remarked, and as the petition plainly shows. The situation of plaintiff is different, therefore, from one who is a member of a benefit society, and her right to apply to a court for relief much more firmly established and generally recognized. Yet cases are cited and eminent authors quoted in the brief of counsel for plaintiffs in error showing that even members of such organizations have been given relief in equity where they could show that the threatened damage was irreparable and incapable of settlement upon a pecuniary basis.

Plaintiff was therefore entitled to show her inability to obtain adequate relief in a court of law. We can well imagine from the circumstances shown in the record the difficulty and lack of opportunity to procure a contract such as that held by plaintiffs. Such institutions are few in number. She may not have the money with which to again buy a home for life, and even if she could get the money she would be compelled to leave behind friendships and associations for which no substitute could be found in the new home.

In this case the trial court should have gone fully into such an inquiry and should have allowed great latitude to plaintiff in her attempt to show any hardship or damage and the nature and extent thereof which may be worked by her expulsion. In such manner only can the court determine her right to the relief prayed for.

The plaintiff was also entitled to show, if she could, any irregularity or defect in the proceedings leading to the order of expulsion. This would include the nature of the charges, the hearing thereon, and all things connected with the action of the board in expelling her. In denying these things to plaintiff in the trial below, we are of the opinion that the court erred to her prejudice.

The portion of the record where the errors occur is pages 66, 67 and 68, and we quote only a part:

On page 66: ‘ ‘ Q. Now, in the case of charges that are preferred by the matron, that a party did not show her the proper respect—
“The Court: Gentlemen, we can not possibly go into all those details.
“Whereupon counsel for plaintiff offered to prove by letters and papers in this case that no material or substantial charges were ever preferred against the plaintiff, Margaret Dennedy, before the board controlling the St. Theresa’s Home.
“Whereupon said tender of proof was rejected by the court, to which ruling of the court, plaintiff, by their counsel, at the time, excepted.”
Page 67: “Mr. Dawson: I also offer to prove that the plaintiff in this case, Margaret Dennedy, made a demand, after being notified that a trial before this board was to be had, requesting a copy of the charges to be met by her, and that this demand was refused.
“Whereupon said tender of proof was rejected by the court, to which ruling of the court, plaintiffs, by their counsel, at the time, excepted.
“Mr.. Dawson: I also offer to prove by documents in the matter, that this plaintiff made a demand for the names of the witnesses and that this demand was refused.
“Whereupon said tender of proof was rejected by the court, to which ruling of the court, plaintiffs, by their counsel, at the time, excepted.
“Mr. Dawson: I also offer to show by the papers in the case, that this plaintiff, Margaret Dennedy, demanded the right to be present with counsel at the inquiry into these matters concerning her right to remain in the home, and that she was refused the right to appear with her counsel or to have the assistance of counsel in meeting the charges made.”
Page 68: “ Whereupon the court rejected said tender of proof, to which ruling of the court, plaintiffs, by their counsel, at the time, excepted.
“Copies of said demand are hereto attached marked Exhibits H, I and J and made part hereof.
“Mr. Dawson: I also offer to show that the plaintiff in this case, Margaret Dennedy, has conducted herself strictly in accordance with all rules and regulations, constitution and bylaws, and that the expulsion or pretended expulsion of her by the Saint Theresa’s Home for the Aged, and its officers and directors, has been without any cause or excuse.
“Whereupon the court rejected said tender of proof, to which ruling of the court, plaintiffs, by their counsel; at the time, excepted. ’ ’

For error in rejecting this evidence the judgment is reversed, and the cause remanded for new trial.

Jones (Oliver B.), J., and Gorman, J., concur.


author: Houck, J.

text:
    ERROR. IN DIRECTING A VERDICT FOR THE DEFENDANT.
    Court of Appeals for Richland County.
    Burton, Preston & Co. v. National Granite Co.

    Decided, February 2, 1916.

      Right of a Litigant to Have His Case Determined by a Jury — No Authority in Trial Judge to Direct a Verdict Where Material Facts Are in Dispute — Application of the Rule to'an Action on an Executory . Contract.

    Where facts necessary to a determination of the issue involved are in dispute, it is error to direct a verdict and such a situation Is presented where there is conflict in the evidence as to material facts and some of the questions of fact are of such a character that different minds might arrive at different conclusions.

      J. W. Galbraith, for plaintiff in error.

      McBride & Wolfe, contra.

      Motion to require Court of Appeals to certify its record in this case overruled by the Supreme Court, May 23, 1916.

   Houck, J.

The parties to this proceeding in error stand as they stood in the court below. The plaintiff brought suit to recover the sum of $845,' being the full amount it had paid to defendant on an executory contract for the purchase and delivery of four monuments which plaintiff claimed were not made according to the terms of said contract, and, further, that it had never accepted said monuments. The defendant filed an answer, being, in substance, a general denial. The case was tried to a jury, and after the plaintiff had offered its evidence the defendant filed a motion for a directed verdict, which was sustained by the court. A motion for a new trial was filed, heard and overruled. The plaintiff in error prosecutes error to this court seeking a reversal of the judgment below, and in its petition in error alleges several grounds of error, but in oral argument its counsel seems to rely upon one ground only, namely, that there were questions of disputed fact that should have been submitted to the jury for its determination.

¥e have examined the record in this case with much care, and we find the following questions of disputed fact:

1. Was the contract in question made and executed in Vermont or Ohio?'
2. Were the monuments in question accepted by the plaintiff?
3. Were the monuments in question of the size, color and kind purchased by the plaintiff ?
4. Did the agent of plaintiff in Vermont accept the monuments ?
5. Did the plaintiff accept said monuments, or any part of same?

If these were questions of fact and were necessary for the proper determination of the issues involved in the present case, and they were disputed, then they should have been submitted to the jury for its determination. A motion for a directed verdiet involves not only an admission of the truth of the evidence, but it further admits the existence of all the facts which the evidence tends to establish. If the testimony be conflicting, the facts uncertain, or the proper inferences to be drawn therefrom doubtful, then and in that event the court would not be warranted in directing the jury to return a particular verdict.

It is the right of litigants in jury trials to have the weight and sufficiency of the evidence submitted to and passed upon by the jury, this being a right of which they can not be deprived by the trial judge, unless it is done with the consent and approval of the parties in interest. It therefore follows, if there is evidence tending to prove each material fact put in issue and indispensable to a recovery, that it should be submitted to the jury, under proper instructions from the court. "Where there is no conflict in the evidence as to the material facts of the case, or where the material facts are conceded, and where the law admits of no inference from the evidence except that which is favorable to the defendant, a motion for a directed verdict made by the defendant might be properly sustained.

From an examination of the réfeord in this case we find that there was a conflict in the evidence as to the material facts; that the material facts were not conceded; and we do not think it will be seriously claimed that no other inference could be drawn from the evidence except that which is favorable to the defendant. We further find from the record that some of the questions of fact were of such character that the testimony offered with reference to same was not only conflicting, but of that kind and character that different minds might have arrived at different conclusions. This being so, it was a question for the jury to determine. We cite in support of this doctrine the case of Hickman v. Ohio State Life Insurance Co., 92 O. S., p. 87, where the court say:

"In order that an issue should be required to be submitted to the jury it is not essential that there be such a conflict in the testimony of different witnesses as makes it necessary for the jury to determine disputes or questions of veracity. That is not the only province of the jury. They have another important function and duty. Where there is no dispute or conflict in the testimony of different witnesses, but nevertheless the uneonflicting testimony discloses a variety of circumstances from which different minds may reasonably arrive at different conclusions as* to the ultimate facts shown by such evidence, then it is the duty of the jury to determine such ultimate facts even though the trial judge should himself be convinced as to what the conclusion should be.”

The defendant contends that the doctrine laid down in the ease of Bowman Lumber Co. v. Anderson et al, 70 O. S., 16, is decisive of the case at bar, the syllabus of the case being as follows:

“By an executory contract for the sale and delivery of chattels of a described grade or quality, the seller becomes bound to deliver goods of the character described, but in the absence of express terms of warranty no obligation is imposed upon him which survives the acceptance by the purchaser of an article delivered by the seller in good faith as in the performance of the contract, if the acceptance is with full knowledge of all the conditions affecting the character and quality of the article.”

We agree with counsel for the defendant that this is a correct principle of law and is applicable to the particular case to which it is applied, but it is not applicable to the facts in the case at bar. In the present case the plaintiff denies that he accepted the monuments in question, and that being a question of fact which is disputed, and being one for the jury to pass upon, we do not see how the claim of defendant can have any force with reference to it being applicable to the present case. If the plaintiff had accepted the monuments, then it would have been bound to pay for same unless it alleged and proved fraud, but as it claims it never accepted them, and that being a disputed question of fact, the rule of law urged by defendant is not applicable to the facts disclosed in the present case.

We feel that we are supported in our theory of this case by a long line of authorities, not only in our own, but other states. Judge Ranney, speaking for the court in the ease of Ellis & Morton v. Ohio Life Insurance & Trust Co., 4 O. S., pp. 645 and 648, says:

‘ ‘ The law of every case, in whatever form presented, belongs to the court; and it is not only the right of the judge, but his solemn duty, to decide and apply it. He must determine the legal requisites to the right of action, and the admissibility of the evidence offered to sustain it. When all of the evidence offered by the plaintiff has been given, and a motion for a non-suit is interposed, a question of law is presented, whether the evidence before the jury tends to prove all the facts involved in the right of action and put in issue by the pleadings. In deciding this question, no finding of facts by the court is required, and no weighing of the evidence is permitted. All that the evidence in any degree tends to prove must be received as fully proved; every fact that the evidence, and all reasonable inferences from it, conduces to establish, must be taken as fully established.
“Our conclusions upon this subject can not be better stated than in the clear and explicit language of one of the learned judges in the court below: ‘Wherever there is any evidence, however slight, tending to prove the facts essential to make out a case for the plaintiff, a non-suit can not be properly ordered; it is in no case a question as to the weight, but as to the relevancy of the testimony. If the testimony tends to prove a prima facie case for the plaintiff, a non-suit can not be properly ordered. Nor can facts tending to prove a defense on the part of the defendant, though proceeding from the witnesses introduced by the plaintiff, be considered on a motion to non-suit. If the defendant wishes to set up any such facts, he must resort to the jury to have them established.’ ”

As to the right of trial by jury Judge Wanamaker, speaking for the court, says in the case of Gibbs v. Village of Girard, 88 O. S., 47:

“So long as the trial by jury is a part of our system of jurisprudence, its constitutional integrity and importance should be jealously safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our Constitutions.”

The question presented for our consideration in this case is: Was the trial court justified in directing the jury to find a verdict for the defendant, in the light of the facts and the law applicable thereto ? In view of what we have already said, and in the face of the facts presented by the record, and applying to the same what we feel are the well established principles of law governing these facts, a majority of this court is of the opinion that the trial judge was not warranted in sustaining the motion for a directed verdict in the ease at bar, and that by so doing the court erred, to the prejudice of the plaintiff in error; and so finding, the judgment below should be reversed, which is accordingly done, and the cause remanded to the common pleas court for a new trial.

Shields, J., concurs; Powell, J., dissents.