text:
    DAM AGES — N EGLIGENCE — STREET RAI LWAYS.
    [Lucas (6th) Circuit Court,
    February 24, 1908.]
    Haynes, Parker and Wildman, JJ.

      Toledo Rys. & Light Co. v. Cornelius Wettstein.
    1. Negligence from Inattention to Duties by Motorman, Established.
    Running down a six-year-old girl, who fell upon the track 150 to 200 feet ahead of a street car, before she could recover from her fall, indicates negligence in operation, either in running the car at a reckless rate of speed, or inattention on the part of the motorman if he was running at reasonable speed. Proof that he did not cut out the power or apply the brakes until after passing over the child or until signaled, by the conductor to stop at a regular -place for passengers to alight, in the absence of a reasonable account by the motorman of the cause of the accident warrants a verdict against the company.
    2. Use of “Peculiar" for “Pecuniary” in Describing Injury not Prejudicial.
    The use by the court, in his instructions to the jury as to determination of damages, of the word “peculiar” as applied to injury resulting from the death of a six-year-old child by negligence, it being qualified or defined by other parts of the charge relating to the -same subject as “pecuniary” injuries, is not necessarily or presumably prejudicial.

      3. Charge Erroneously Designating Beneficiaries of Damages for Wrongful Death not Prejudicial.
    Under R. S. 6135 (Cen. Code 10772), prescribing the bringing oí actions for death by wrongful act, the apportionment of damages therefor is of no concern or interest to the negligent party against which damages are recovered. Hence, an instruction to the jury in such a case that they are to take into consideration the money value of the services of a six-year-old girl to the father, mother and next of kin, although erroneous as to the “next of kin,” is not prejudicial in that nobody but the father, and in some contingencies, the mother, have any pecuniary interest in her services. The jury should allow the full value of her services, and it is not to be supposed that in apportioning the damages they would multiply the value of her services by the number of beneficiaries.
    4. Verdict'of $1.000 for Death of Six Year Old Girl, not Excessive.
    A verdict of $1,000 for the death of a six-year-old girl, large of her age and bright and active, and a helper in a large family v of moderate means where all helped, is not excessive.
    [Proof of this decision and syllabus was submitted to Judge Parker and corrected. — Ed.]-
    Error to Lucas common pleas court.

      'Smith & Baker, for plaintiff in error.

      O. W. Nelson, for defendant in error.

      Affirmed, no op., Toledo Rys. & Light Co. v. Wettstein, 79 O. S. 439.

   PARKER, J.

This action in .the court below was by the defendant in error against the plaintiff in error, and was for damages on account of the death of Louisa Wettstein, cause'd, as alleged, by' the negligent action of the motorman of the Toledo Bailways & Light Company, in running a car whereby it ran down Louisa Wettstein and killed her. She was a child about six years of age. She appears to have been large of her age and bright and active and, as a helper in the family, which was a family of moderate means, where all helped — as helpful as could be expected of a child of her age. The jury found that the defendant company was guilty of negligence as charged and brought in a verdict in favor of the plaintiff for $1,000. It is urged that this verdict is against the weight of the evidence, that it is excessive and that there is error in the charge of the court — those are the principal errors relied upon by counsel for the plaintiff in error in argument in this court.

I shall not take time to discuss the facts. We have examined the case carefully and we conclude that the evidence- warrants the verdict; that it fairly appears from this evidence that the motorman was negligent either in running his car so fast that he could not bring it to a stop after he saw the child on the track —although the child was far enough away so that he could have stopped if he had been running his car at a reasonable rate of speed in.the city (in other words, if he saw the child and attempted to stop the car, the accident then must have been due to the fact that he was running at a reckless rate of speed in a city street, and, therefore, was not able to stop his car in time), or, he must have been negligent, and the jury must have found that he was negligent, in that he was inattentive and did not observe the child upon the street. The testimony tends to show that the child was crossing over the street and fell down upon the ear track anywhere from 150 to 200 feet in advance of the car, and that the car came on at a rapid rate of speed, and, before the child could recover, regain her feet and get off the track, the car struck and crushed her. The evidence tends to show that the motorman did not cut out the power and apply the brake until after the child was struck or about the time the child was-struck.

We think it was a fair inference from all the evidence in the case that the motorman did not in fact see the child on the track before it was struck — that he was not aware that anything unusual had occurred until after he had passed over the child. About that time, he cut out the power and applied the brakes, but this appears to have been done in pursuance of a signal from the conductor to stop, that a passenger might alight, and he in fact stopped his ear at the regular place of stopping after crossing over the street beyond where the child was struck, and at which crossing the conductor had signalled him to stop the car. Upon one or other of these theories his action may be explained, and upon either theory, he was guilty of negligence. We think the account of the motorman of how the accident occurred, is not such a reasonable account as should control a jury. The jury evidently did not place much reliance upon it and we think they were warranted in not placing reliance upon it. So that we find that the verdict is not against the weight of the evidence; we think that it is fairly supported by the evidence; and it does not appear thus to be excessive.

The complaint of the charge has reference to what the court said about the measure of damages, or, as to the grounds and accounts upon which damages may sometimes be allowed. I will read that part of the charge:

“The statute provides that in every action the jury may give such damages not exceeding in any case $10,000 as they may think proportioned to the peculiar injury resulting from such death to the person respectively for whose benefit such action shall be brought.”

Complaint is made of the use of the word ‘ ‘ peculiar. ’ ’ We think it quite likely that that is a typographical error- but it stands in the record and we must regard it as a part of the language used by the court. But, it is not apparent to us that, if there is any error in this, it could have been prejudicial to the plaintiff in error. The court proceeds to point out more particularly what the injury is on account of which damages may be allowed, and, therefore, if the word “peculiar” required any definition or explanation, the jury might have found it in the language of the court. The court proceeds:

“The persons in this action for the benefit of whom this action is brought are the father, the mother, the brothers and the sisters. They are the next of kin. The jury may give such damages .as they think proportioned to the pecuniary injury resulting from such death.”

Now, that appears to have been written by the typewriter “peculiar” and changed to “pecuniary,” and where the word “peculiar” occurs above, perhaps it should be changed also. The court now says:

“The pecuniary injury resulting from such death is the money value of the services of the little girl to the next of kin( the father, mother and next of kin. This would exclude gen erally all damages in the way of the mental pain and suffering over the death of the little girl and it would exclude all damages, in the way of punishment of the defendant. There is no claim here that the motorman wilfully and wickedly ran into and killed the little girl. The only claim is, he negligently killed the little girl and there should be no damages in the way of punishment to the defendant for any acts of the motorman or as a warning to other motormen, but whatever after consideration of the age of the little girl and her health and expectancy of life and the uncertainty of life. The fact that when she reaches a certain age she might have a family of her own. Take into consideration all the facts and circumstances and then award such judgment and such value as you deem proportioned to the pecuniary injury resulting from her death, the money loss.”

Now, we think it was made entirely plain to the jury that there was nothing to be added on account of some further peculiar injury that the court had not explained to the jury, but the court says, and puts it very definitely and clearly, that it is only this pecuniary injury that is to be considered.

But complaint is made of this charge because it has said to the jury that they are to take into consideration the money value of the services of the little girl to the next of kin — to the father and the mother and the next of kin; and it is said, and it is doubtless true, that at the time of the d,eath of the little girl nobody had any pecuniary interest in her or her services but the father, and, in certain contingencies, the mother might have had, but the next of kin, the brothers and sisters, could not have had, in any event, any interest in the services of the little girl; they were not entitled to her services; but the father was entitled to all her services until she reached her majority, and, since he was entitled to all of her services, and therefore was entitled to have a verdict returned for the full value of her services as they might be estimated by the jury, we cannot see that any prejudice resulted to the plaintiff in error from the suggestion that the brothers and sisters might be entitled to participate in this recovery. The jury could allow no more than the value of the little girl’s services; they could not multiply the value of her services because that value might have been supposed by them to be something to be divided amongst many persons; it would be the’value of her services, no more and no less, whether received by the father or the father and mother or by them and others. The court was evidently in error in the suggestion that the others of the next of kin would be entitled to participate in the recovery, but, as I have said, we cannot see that this was prejudicial to the plaintiff in error. The jury had nothing whatever to do with the apportioning of the damages among the next of kin in whose behalf the suit was brought. The court of common pleas had nothing to do with it. The statute allowing the right to recover provides that it shall be done by the probate court. R. S. 6135 (Gen. Code 10772) reads:

‘ ‘ Every such action shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused. ’ ’

And it states how the suit shall be brought and that the damages shall not in any case exceed $10,000, or such amount as the jury “may think proportioned to the pecuniary injury resulting from such death, to the persons respectively for whose benefit such action shall be brought.” And further along in the section it provides that the amount of the recovery, whether received through a suit or settlement, “shall be apportioned among the beneficiaries, unless adjusted between themselves by the court making the appointment in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates left by persons dying intestate.” TIow this amount shall be divided, whether the father shall waive his right and allow some part of it to go to others, next of kin, is a matter of no concern or interest to the plaintiff in error. The suit might well have been brought perhaps without mentioning any others of the alleged beneficiaries than the father, if it turns out from the evidence that he was the only one really entitled to the avails of the judgment.

Finding that there was no prejudice in the erroneous statement or suggestion, there is, therefore, no ground for reversing the judgment. We find no prejudicial error such as would justify a reversal of the judgment and therefore it will be affirmed.

Haynes and Wildman, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SODOMY.
    [Richland (5th) Circuit Court,
    September 9, 1911.]
    Taggart, Donahue and Voorhees, JJ.
    Dan Franklin v. State of Ohio.
    Carnal Copulation in the Mouth with Another Person Constitutes Sodomy.

      "Body” in R. S. 7020-1 (Gen. Code 13040), defining sodomy as carnal copulation “in any opening of the body” except th'e sexual parts, with another human being, is synonymous . with “person” or “human being”; hence, carnal copulation in the “mouth” with another person is within the proscription of the statute.
    [Syllabus approved by the court.]
    Error- to common pleas court.
    The indictment upon ivhich this prosecution was based charged that the accused 1 ‘ unlawfully did have carnal copulation against nature with a certain male person # * * in an opening of the body” of another.
    There was no contradiction of the evidence on the part of the prosecution that the accused, a grown man; had carnal copulation with a boy about nine years on the date and at the place averred. Penetration was clearly proved. The opening penetrated was the mouth.
    In the trial by the common pleas, no evidence was offered by defendant; at the close of the state’s ease defendant moved to direct a verdict of acquittal which was overruled; the jury returned a verdict of guilty; later a motion for new trial was overruled and error was prosecuted to the circuit court.

      Van G. Gooli and G. L. McClellan, for plaintiff in error:
    “Body” in the statute does not include “mouth.” State v. Edmunson, 64 Mo. 398; Sanches v. People, 22 N. Y. 147; 4 Am. & Eng. Enc. Law (2 ed.) 611; Black, Law Diet.; Webster’s New Inter. Diet.; Century Dictionary I.-
    Sodomy defined. Bouvier’s Law Diet.; 25 Am. & Eng. Enc. Law (2 ed.) 1144; 4 Black, Commentaries 215; Prindle v. State,
      31 Tex. Crim. Rep. 551 [21 S. W. Rep. 360; 37 Am. St. Rep. S33] ; 1 Russell, Crimes 937; Rex v. Jacobs, Russ & Ry. 331; State v. Fox, 6 Crim. Law Rec. 389.
    Construction of penal statutes. Ball v. State, 20 Ohio 6; Shultz v. Cambridge, 38 Ohio St. 659; State v. Meyers, 56 Ohio St. 340 [47 N. E. Rep. 138],

      Jas. W. Galbraith, Pros. Atty., for defendant in error:
    The “mouth” is an “opening of the body.” 1 Enc. Brit. (9 ed.) p. 799; Webster's Intercollegiate Diet.; Laning, Crim. Law & Pr. (2 ed.) 532; Bonselman v. People, 168 111. 172 [48 N. E, Rep. 304] ; Kelly v. People, 192 111. 119 [61 N. E. Rep. 425; 85 Am. St. Rep. 323]; Plughes, Crim. Law & Proeed. Sec. 2290; Stale v. Williams, 34 La. 87; Underhill, Crim Ev. p. 422, .See. 360.
    Rule of construction of criminal statute. Woodworth v. State, 26 Ohio St. 197, 198; Laning, Crim. Law & Pr. pp. 533, 534; Universal Diet. English Language; Hughes, Crim. Law & Pr. p. 585, Sec. 2289; Foster v. State, 1 Circ. Dec. 261 (1 R. 467).
   PER CURIAM.

The question in this case arises upon the construction which the court of common pleas' gave to R. S. 7020-1 (Gen. Code 13043), or more particularly to that part of the section wherein the court instructed the jury as to the meaning of the word “body.” The court, in its instruction to the jury, defined the word “body” as synonymous with “person” or “human being.” If this was a correct construction, then the verdict and judgment was right.

It is contended by plaintiff in error that the true construction to be given to this section of the statute, and to this portion thereof, is that the word “body” is to be construed as the human trunk excluding the head and limbs. If that is the true construction of this section .of the statute, then the verdict and judgment was not sustained by the evidence and the instruction of the trial court was erroneous and prejudicial.

At common law, the crime of ‘sodomy would not have been 'established by the proof in this ease, but this crime was not recognized as a crime in the state of Ohio until the enactment of this section of the statute, and we think the -manifest purpose and object of this section of the statute was to punish this character of unnatural crimes.

The contention of counsel for plaintiff in error that criminal statutes should receive strict construction and be limited to the express terms of the statute is undoubtedly correct, and the courts have uniformly so held as a safeguard to the rights of the citizen, but our’Supreme Court, in recent decision in the case of Conrad v. State, 75 Ohio St. 52 [78 N. E. Rep. 957; 6 L. R. A. (N. S.) 1154; 8 Ann. Cas. 966], lays down this rule:

“The rule as to strict construction of penal statutes does not require the courts to go to the extent of defeating the purpose of the statute by a severely technical application of the rule.”

As we have said, we think the purpose of the enactment of this statute was to punish this unnatural crime, and approved lexicographers define “body” as a “person,” a “human being,” and with such a construction as this, and the manifest purpose of the legislature in enacting the law, we are not inclined to say that the construction the court of common pleas placed upon this section of the statute was wrong, nór to adopt such a severe technical construction as would defeat the manifest purpose of the legislature in its enactment.

Finding no error in this record to the prejudice of the plaintiff in error, the judgment of the court of common pleas is affirmed with costs and remanded for execution. '


author: JONES, J.

text:
    DEATH — NEGLIGENCE—RELEASE.
    [Hamilton (1st) Circuit Court,
    June 24, 1911.]
    Smith, Swing and Jones, JJ.
    Salena Maguire, Admrx. v. Cincinnati Trac. Co.
    Release by Employe of Claim for Injuries Bars Estate, But not Widow or Next of Kin.
    A release in full for all claims for damages growing out of an injury received by an employe bars his estate, under Gen. Code 11897, from further recovery in the event of his subsequent death in consequence of such injuries, but leaves intact any claim for loss sustained by the widow or next of kin, under Gen. Code 10770.
    Error to common pleas court.

      B. T. Hackett, for plaintiff in error.

      George H. Warrington, for defendant in error.
   JONES, J.

This action was brought below by plaintiff in error on behalf of the widow and next of kin of Hugh C. Maguire against the Cincinnati Traction Company, defendant in error, for damages on account of the death of said Hugh C. Maguire, which was caused, as alleged in the petition, by the negligence of defendant.

An answer was filed by defendant, one of the defenses therein being that the action is barred for the reason that after the alleged accident upon which the claim of plaintiff is founded, and before his death, plaintiff’s intestate, upon payment to him of the sum of $25 by defendant company, executed and delivered to it a “receipt and release in full of all claims for damages growing out of said accident which he or anyone by, through, or under him might have or assert against said defendant, and that defendant is still in possession of said release. ’ ’

To this defense a demurrer was filed, which was overruled by the court, and, the plaintiff not desiring to plead further, the petition was dismissed and judgment given in favor of defendant. Plaintiff in error asks for a reversal of said judgment.

The question raised by the demurrer is: Does the release executed by plaintiff’s intestate bar a right of recovery for the benefit of the widow and next of kin?

The right to bring an action for wrongful death for the benefit of the estate of decedent is given by Gen. Code 11397.

An independent right of action to be brought by the administrator on behalf of the widow and next of kin is given by Gen. Code 10770. The only condition imposed by this section is that the “wrongful act, neglect or default” must have been such as to have entitled the party injured to maintain an action and recover damages in respect thereof if death had not ensued.

It will be seen that the circumstances of the accident or injury determine the right of such action. We do not think it is within the power of the party injured, by any act of his subsequent to the injury, to bar this action.

The case of Mahoning Valley Ry. v. Van Alstine, 77 Ohio St. 395 [83 N. E. Rep. 601; 14 L. R. A. (N. S.) 893], is decisive of the ease and clearly establishes the right to maintain an independent action for the beneficiaries named in the statute.

The right of the estate under Gen. Code 11397 is barred by the release, and when this case is tried the only ground of recovery will be the loss sustained by the widow and next of kin.

Judgment reversed.

Smith and Swing, JJ., concur.


text:
    ERROR — MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    December 23, 1911.]
    Smith, Swing and Jones, JJ.
    Standard Millwork Co. v. Wm. H. Bick, a Minor.
    1. Judgment in Negligence Case on Evidence Creating Presumption of Negligence, not Refuted, not Reversible.
    A judgment in favor of an injured employe will not be reversed on the weight of evidence, there being evidence creating a presumption of negligence on the part of a master, directly contributing to the injury, and no evidence offered in refutation thereof.
    2. Person Operating Part of Plant and Employing Men in His Part not Independent Contractor.
    One operating part of a manufacturing plant, under an arrangement whereby he is to hire and pay and have entire control of all the employes at work in that portion of the plant, an® the owner is to furnish the material for manufacture together with the use of the plant, is not an independent contractor.
    Error to common pleas court.
    The plaintiff below recovered a judgment of $2,500, for loss of his left hand by a saw, operated in the factory of the defendant below. At the time of the accident one E. B. Swartz was operating a part of the factory for the construction of a certain bind of window blinds and shutters, under a contract that the company should furnish the plant, machinery, lubricating oil and material, and Swartz was to employ and pay all the employes, the company to have no control or supervision over them.

      Albert Bellinger and Walter Schmitt, for plaintiff in error.

      T. B. Snyder and Thos. L. Michie, for defendant in error.
   JONES, J.

There is evidence in this ease supporting the allegation of the petition charging negligence in starting, the saw, while the boy had his hand in the blow-pipe cleaning it, and that the saw was started without any notice or warning.

Such evidence per se raises a presumption of negligente on the part of the master and places upon him the burden -if removing such presumption. No evidence was offered to explain the starting of the' saw, and such presumption was in no way refuted.

The trial court correctly charged that Swartz was not an independent contractor, and we find the general charge in all other respects correct.

There was no erior in the refusal to give special charges requested by defendant below.

Special charge number 11 (refused) is defective only in that it does not predicate its statement of law upon the condition that the jury find that the saw was in motion when plaintiff placed his hand in the blow-pipe.

With the saw motionless there was no apparent danger.

We find the judgment works substantial justice bétween the parties and there being no error it is affirmed.

Smith and Swing, JJ., concur.


author: SMITH, J.

text:
    COUNTIES — TAXES.
    [Hamilton (1st) Circuit Court,
    July 2, 1910.]
    GifCen, Smith and Swing, JJ.

      State ex rel. Pros. Atty. of Hamilton Co. v. Eugene L. Lewis.
    County Commissioners’ Adjudication of Auditor's Claim for Collecting Taxes Dishonestly Omitted is Final.
    An adjudication hy county commissioners fixing amount of claim allowed a county auditor for services rendered in placing upon the tax duplicate property dishonestly omitted and collecting taxes thereon, pursuant to Gen. Code 5399, and ordering payment of the amount fixed is final in the absence of fraud or collusion shown.
    Error to common pleas court.

      Alfred Bettman, for'plaintiff in error.

      Alfred B. Benedict, for defendant in error.

      Afiirmed, no op., State v. Lewis, 83 O. S. 495.

   SMITH, J.

From the record of the above case the court is of the opinion that defendant in error in placing upon the tax duplicate of Hamilton county omitted back taxes due by the Union Central Life Insurance Company for the years 1902, 1903 and 1904-, was acting under the authority of the act of May 10, 1902 (95 O. L. 489). If, however, this is not correct and he was acting as claimed by the relator under R. S. 2781a (Gen. Code 5399), then there is no evidence on behalf of the relator in the record tending to show that the returns for said years of the insurance company were honestly made; that is, that they were not made with a dishonest intent.

The court, however, is of the opinion that the ruling of the trial,court was correct, for the reason that defendant in error’s answer sets up ‘1 that he duly presented his claim to the county commissioners of this county, and that the same was duly allowed by them.” This being so, it is apparent that this finding can not be impeached, for, if acting under the law as claimed defendant in error placed upon the tax duplicate property that was taxable which had been dishonestly omitted, and the taxes thereafter upon the same had been collected, and the commissioners had drawn their warrant or ordered paid the per centum due thereon, the commissioners must presumably have had a hearing, at which evidence was adduced which justified their conclusion and finding that the work was performed by the auditor and the amount due defendant in error, and their subsequent act in ordering this amount paid. There being a statute for the payment of such a claim as this, it was properly within the jurisdiction of the county commissioners in respect to the financial, affairs of the county to pass upon and adjudicate such a claim, the same being the subject of a legal claim against the county. If this is true, in the absence of fraud or collusion, the finding of the commissioners would be final.

A board of county commissioners is an inferior court, and when such a board acquires jurisdiction and audits a claim, unless its judicial action is reversed or set aside, such action is conclusive. Herman, Estoppel Sec. 435.

The ease at bar is not one falling with the decision of Jones v. Lucas Co. (Comrs.) 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710], which was followed by this court in the recent ease of Weaver v. State, 24 Ohio St. 584, in which it was held “that the basis for the recovery therein was the payment to a county officer by the county commissioners of fees in conducting his office for which there was no statutory provision. ’ ’

It is also urged that all that the auditor was called upon to do was to correct a clerical error, for which under Amazon Ins. Co. v. Capeller, 38 Ohio St. 561, he would not be entitled to his fees, but in this respect we can not agree with counsel for relator, as the finding or report of the auditor himself discloses his work in this regard, and the facts he was compelled to ascertain before placing upon the duplicate the omitted taxable property.

The claim of defendant in error therefore being a legal one against the county, and the county commissioners having authority to adjudicate the same, we think this -finding is binding upon the court for the reasons above stated, and the judgment of the court below will be affirmed.

Giffen and Swing, JJ., concur.


author: KINKADE, J.

text:
    MUNICIPAL CORPORATIONS — PUBLICATION.
    [Lucas (6th) Circuit Court,
    February 17, 1911.]
    lyildman, Kinkade and Richards, JJ.
    Toledo (City) v. John M. Babcock et al.
    1 Paid Circulation of Newspaper Means Paid Subscription Whether Paid in Advance or not.
    Subscriptions to be considered in fixing the circulation of newspapers for publication of ordinances, within the meaning of Gen. Code 4228 are not limited to those paid in advance; “bona fide paid circulation” includes “bona fide subscriptions” whether paid in advance or not.

      2. Determination by Council, as to General Circulation of Newspaper not Conclusive.
    Determination by council that a newspaper is a paper of “general circulation” in the municipality, required by Gen. Code 4228, raises a presumption of that fact merely; but such action does not preclude inquiry as to such circulation by the courts.
    Error to common pleas court.

      Cornell Schreiber, city solicitor, and Alonzo G. Duer, for plaintiff in error.

      George N. Fell, for defendants in error.
   KINKADE, J.

This is an action that was brought in the court of common pleas to restrain the execution on the part'of 'the officers of the city of a contract that had been entered into by them with the owner of the Toledo World, Mr. Alonzo A. Reilly, for the printing of the ordinances, resolutions, etc., of the city.

A contract had been entered into with the Toledo Blade, as a republican newspaper, and then a contract entered into in regular form with the Toledo World, as being a paper of opposite politics.'

The relief prayed for in the petition was denied in the court of common pleas and the case is here on appeal with quite a volume of evidence for the examination of the court.

The .only real question presented seriously in this court is the question whether the Toledo World is shown by the evidence to have been a newspaper of general, circulation in the municipality. There seems to have been little question but that it was a newspaper, and practically no question made but what it was of opposite politics. Nobody has seriously claimed that it has traveled along the lines of the Blade; but the question is very seriously made here as to whether it is a newspaper of general circulation' as contemplated by the statute, and the evidence is very largely addressed to that question.

It is said by counsel for the city that under the statute, the only subscription that can be recognized in determining valid subscriptions to a newspaper, is a subscription that is paid in advance; it must be a paid subscription, and “paid” means paid in advance, it is said. Our attention is called to the fact that a provision of the statute (Gen. Code 4228) relating to publications in German papers speaks of their having at least one thousand paid circulation, and it is said that the language of the statute in this regard determines the construction that should be applied to English newspapers., and that the only subscriptions that can be counted are paid subscriptions, and “paid subscriptions” means subscriptions paid in advance.

We think this is too'strict a construction of the statute. In our judgment the statute does not mean paid subscriptions in this sense, i. e., paid in advance. It has reference to bona fide subscriptions, whether paid in advance or not, we think.

But it is said, in addition to this, that the evidence shows that it is not a paper of general circulation within the municipality anyhow, and that, of course, necessitates an examination of the evidence as to what is shown in this record.

We think, taking the evidence in full, that it clearly shows that this is a newspaper of opposite politics from the Blade and that it is a newspaper of general circulation in the community.

Our attention is called to the fact that the court below held that the relief must be denied because the council had passed on the question, and that that was conclusive unless bad faith was shown; that if council were to pass on the question whether a newspaper was one of general circulation or not, that that would be conclusive, and could only • be avoided in case bad faith had been shown. We are not prepared to admit this construction of the statute, but are inclined to approve of the position taken by the counsel for the city, that this subject is open to inquiry and that the council have not the discretion to determine, beyond investigation, whether a newspaper is, or is not, a paper of general circulation. It is a matter of fact and it is as much open to inquiry as is the determination of the council that a given piece of property is already provided, or is not already provided, with sufficient local drainage in . the matter of assessments. It has been repeatedly held that that subject may be inquired into. It may, raise the presumption that the property has not local drainage, if additional local drainage is provided and an assessment made for it, but it is only a presumption. It may raise the presumption that a newspaper is of general circulation, but it is only a presumption and it may be met by evidence overthrowing the presumptkfiff-if the evidence exists.

The statute requires that it shall be a newspaper of general circulation. Of course it would not do to say that council might dispense with that provision, and find that something was a newspaper of general circulation which the facts showed was hot a newspaper of general circulation and thereby dispense with the requirement.

,We think the contention of the counsel of the city is correct in that regard, but upon a full investigation of the case we are thoroughly satisfied- that this paper in question, the Toledo “World, meets the requirements of the statute, in that it is shown by the evidence to be a newspaper of general circulation in the municipality; and this necessitates the dismissing of the petition at the plaintiff’s costs.

This action was brought here by the city solicitor at the request of a taxpayer.

Judgment reversed.

Wildman and Richards, JJ., concur.


author: GIFFEN, P. J.

text:
    ATTACHMENT — JUSTICE OF THE PEACE — TRIAL.
    [Hamilton (1st) Circuit Court,
    December 24, 1909.]
    Giffien, Smith and Swing, JJ.
    E. A. Kinsey Co. v. John H. Heimerdinger et al.
    1. Common Pleas Reversing Default Judgment- in Attachment by J. P. Retains Case as on Appeal.
    A default judgment in attachment granted upon a continuance as provided by Gen. Code 10264 and rendered within the appearance hour prescribed by Gen. Code 10246, is voidable: hence, under Gen. Code 12246, the common pleas having reversed such judgment, retains the case as on appeal.

      Suing by Initials Instead of Full Name Does not Defeat Attachment.
    Jurisdiction is not defeated Jn a suit in attachment by reason of the fact that the defendant has been sued by his initials instead of his full name.
    Error to Hamilton common pleas court.

      TL err on, Gaich & Janies and Roy M. McLaughlin, for plaintiff in error.

      Cobb, Howard & Bailey, for defendant in error.
   GIFFEN, P. J.

The justice of the peace had jurisdiction of the subject-matter and of the person of the defendant by publication under Gen. Code 10263, and if the record shows that the justice rendered judgment by default without allowing one hour to the defendant in which to appear after the time mentioned in the continuance order under Gen. Code 10264, the same was voidable and not void for want of jurisdiction.

The court of common pleas having reversed the judgment of the justice for the reason .that one hour was not allowed to defendants, the case is, by force of Gen. Code 12246, still pending in that court as in eases of appeal.

If it be urged that the justice had no jurisdiction of the defendant because sued as “J. H. Heimerdinger, whose first name is unknown, it is sufficient to say that without any notice being served upon the defendant, the court would still have jurisdiction in an attachment suit, Paine v. Mooreland, 15 Ohio 435 [45 Am. Dec. 585], although the proceedings would be irregular and reversible.

The petition in error will be stricken from the files,

Smith and Swing, JJ., concur.


author: HENRY, J.

text:
    MUNICIPAL CORPORATIONS — STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    October 29, 1906.]
    Marvin, Winch and Henry, JJ.

      Taylor Emerson v. Forest City Ry.
    City Owning Land Abutting Street may be Counted as Other Abutters in Estimating Frontage for Street Railway Franchise Thereon.
    Property owned hy a city abutting a street, along which a street railway is projected may be included in estimating the total frontage, and the city’s consent given pursuant to ordinance of its council can he counted to make a majority of the frontage required hy R. S. 3439 (Gen. Code 9105) as a prerequisite to the council’s granting a franchise thereon; it is not against public policy for the city in its adversary and dual capacity of landowner and grantor of franchise, to confer upon itself jurisdiction to act in derogation of other abutters’ rights.
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    ArPEAL from common pleas court.

      Affirmed, no op., Emerson v. Railway, 77 O. S 596.

   HENRY, J.

This is an appeal from the judgment of the common pleas court denying a permanent injunction against the exercise hy the defendant of its alleged street railway franchise on East 14th Street for want of the necessary majority of abutting owners’ consents. It is admitted that the production of sufficient consents is jurisdictional and that without them the council is without power to grant a franchise. If the 14th Street frontage of the Erie Street Cemetery property owned by the city is to he included in estimating the total frontage, and if the city’s consent given pursuant to ordinance of its council can he counted to make a majority, then the injunction should he denied.

The sole issue is thus one of law depending upon the construction of R. S. 1536-185 and 3439 (Gen. Code 3769, 9105), the latter of which reads in part as follows.-

“No such grant shall be made until there is produced to council, or the commissioners, as the case may he, the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way, along which it is proposed to construct such railway or extension .thereof; ’ ’

And in part of the other section referred to is substantially the same provision.

The literal reading of these sections is against plaintiff’s contention. But it is urged that since the privilege of abutters; to give or withhold their consents is a personal right given t© them for their protection against the granting of the right to operate a street railway in front of their premises contrary to their desire and interest, it is against public policy for the city, in its adversary and dual capacity as both landowner and grantor of the franchise, to confer upon itself jurisdiction to act in derogation of their rights.

There is of course a suggestion of anomaly in this situation. Various analogies of action .by public officers in dual capacities have been instanced, but we have found none which precisely meets this situation. It is not easy to see why the city as landowner should be deprived of the privilege enjoyed by landowners generally of favoring the establishment of a. street railway by giving consent, where a street railway is deemed to be beneficial to the abutting property. And it is apparent that the denial of that privilege might hinder or prevent the establishment of a street railway along a street bordered largely or wholly by property belonging to the city, and that, too, when ease of access to such property by the public is peculiarly desirable, as in the ease of city parks.

It is, indeed, conceivably true that the interest of the city as a whole may be favorable to .the construction of a street railway along a street where its own and other abutting lands would be depreciated thereby, and that it may thus force the establishment of a street railway against the' interests of the owners of abutting private property. But the same argument, m some degree, would lie against the right of any other public corporation, owning abutting city lands, to give or withhold consent to the construction of a city street railway in front of -its property. Yet the right of the federal, or state government, or of a county, or school district, in this behalf is, we believe, unchallenged. This privilege being personal to the owners of abutting lands, may be exercised even to the manifest detriment of the land itself, if they so please. Can it be doubted that a street railway company may, as owner of abutting lands, yield the decisive consent to the grant of a franchise to itself? It having been decided that consents may be purchased, can it be seriously claimed that any abutting owner who refuses to yield his consent can invoke high consideration of public policy against the contrary exercise of the same privilege by any owner, though it be the city itself, upon the ground of biased judgment, impure motive, conflicting duties, or cross-interests? Can supposed public policy of so doubtful a nature operate to vary the plain letter of the law? We- think not.

Viewing the question from another standpoint and considering the history of this legislation, the rule of majority consents was formerly founded on assessed valuations of abutting property, so that owners of property exempt from taxation had no power to further a street railway project by their consents. When the legislature changed this basis to that of foot frontage, it obviously had this fact in view. It could hardly have escaped attention that the change thus made would affect property owned by the city. Yet the legislature made no exception of city property. If it had expressly conferred upon municipalities the privilege of giving consent in respect of their ^property abutting on proposed street railway routes, it can hardly be claimed that considerations of public policy would 'defeat such provision. And the same conclusion results from the reasonable presumption that the legislature must have had in contemplation the plain application and natural meaning in this behalf of the language it did employ.

If abuses arise from the literal interpretation of the law, it is much better that the legislature should amend the law than that the courts by judicial legislation should attempt to do so.

The injunction will be denied, as upon final hearing, and the petition dismissed at the plaintiff’s costs.

Marvin and Winch, JJ., concur.


author: PARKER, J.

text:
    EVIDENCE.
    [Lucas (6th) Circuit Court,
    November 14, 1908.]
    Kinkade, Parker and Wildman, JJ.
    Channing W. Richards, Recvr., etc. v. Herman Bunte.
    1. Removal of Books for Inspection cannot be Compelled.
    A court ordering an inspection under R. S. 5290 (Gen. Code 11552) cannot require a party to remove his books, papers and documents from the place where they are ordinarily, properly and lawfully kept to some other place in order to. make it convenient for the opposite party to inspect them, and especially, to require their production at such place at a specified time before trial where the motion for inspection makes no request other than that they be produced at the trial.
    2. Action Improperly Dismissed for Refusal to Produce Books in Another County for Inspection against Order of Another Court.
    A court of one county having directed its receiver of an insolvent insurance company to keep certain of its books within that jurisdiction, a court in another county in which the receiver is a party to an action to recover premiums against the policy holder, cannot dismiss the action for his failure to produce such books for inspection under R. S. 5289 (Gen. Code 11551).
    3. Essential that Books Contain Evidence Pertinent to Issue.
    No presumption can be indulged in support of an order to produce books for inspection under R. S. 5289 (Gen. Code 11551), that the court was fully advised in the premises of each and every fact essential to the validity of its order, in the absence of any declaration in the motion, in the order or in the record, that the books contain evidence pertinent to the issue, or showing that the matter was heard upon evidence; and under such conditions, such order cannot be upheld.
    [Proof of this decision was submitted to Judge Parker and corrected. — Ed.]
    Error to Lucas common pleas court.

      D. L. Beall and P. A. Reece, for plaintiff in error.

      E. O. King, for defendant in error.
   PARKER, J.

It appears from the record presented here that the Aetna Fire Association of Cincinnati had become insolvent and that its affairs were being wound up in the court of common pleas of Hamilton county, the residence or situs of the corporation. That in pursuance of these proceedings suit was brought by the receiver against Herman Bunte, to recover certain premiums which it is alleged were due from' him to the plaintiff on certain policies issued to him by the company. Herman Bunte answers defending against this claim on a variety of grounds. The case has been in this court before, on error, the error complained of then being the sustaining of a demurrer to the petition. This court reversed that judgment of the court of common pleas, and now we have another question presented.

In the .court of .common pleas the defendant filed a motion for an order requiring the plaintiff to produce certain books and papers upon the trial. The motion started out, after the title, as follows-: “Now comes the defendant and moves the court for an order on the plaintiff in this cause requiring him to have and produce at the trial of this cause for the use and benefit of the defendant the following boobs, paper writings and documents, to-wit:” and then is set forth, in sis separate paragraphs, a description and enumeration of the books and papers desired, and it is said upon the hearing, and is not questioned — indeed we think it appears from the inspection of the motion itself — that the books and papers required would be, not only numerous and bulky, but that it would require the production of a large part, if not all of the records and papers of this association.

When the matter came on to be heard, the following order was made by the court of common pleas:

“This day, the twenty-fourth day of April, 1907, this cause came on to be heard upon the motion of the defendant for an order requiring the plaintiff to produce certain books, paper writings and documents in his possession and described in said motion and to have the same at the trial of this cause for the use and benefit of the plaintiff, and the court having been fully advised in the premises and having heard the arguments of both parties by their counsel respectively for and against the granting of said motion find that said motion is well taken and that said books, paper writings and documents should be subject to the inspection of the defendant and his attorneys in Toledo, Lucas county, Ohio, at least three days prior to the trial of this cause, and should be produced by the plaintiff at the trial of this cause for such use by the defendant as may be proper at the time under the laws of the state of Ohio.
“It is therefore ordered by the court that the plaintiff, Channing W. Richards, as receiver of the Aetna Life Association of Cincinnati, Ohio, have and produce the books, paper writings and documents described in said motion at some proper and suitable place in the city of Toledo, Lucas county, Ohio, at least three days before the trial of this cause for the examination and inspection of the defendant and his attorneys; but it is not ordered that the same shall pass out of the possession of said receiver or his attorneys.
“And it is further ordered that said plaintiff have and produce said books, paper writings and documents on the trial of this cause for such- use therein by the defendant as at the time, shall be proper under the laws of the state of Ohio. To each, every and all of said findings and to each, every and all of said orders of. said court and the granting of said motion, plaintiff then and there duly excepted.
“Plaintiff further excepted to the hearing and granting of said motion for the reason that notice in writing of the hearing of said motion was not served on plaintiff until April 23, 3907, and plaintiff was not prepared to argue said motion.”

It is said, in argument, that the notice of the motion was served upon local counsel here upon the twenty-third of April and the matter was heard upon the twenty-fourth and local counsel had no opportunity to communicate with the chief counsel, who was the only one prepared to represent this matter properly on behalf of the company, before the court. Complaining of this order and of the action of the court in taking it up so speedily after the notice, the plaintiff in error made a motion to have this order set aside; and it appears from the journal under date of May 2, 3907, that that motion was heard upon evidence, and some of the evidence educed is mentioned in the journal entry; but the court then adhered to its former ruling and overruled the motion to set aside.

Under date of May 17, 1907, we have this entry:

“This day this cause came on regularly for trial and in open court came the defendant and represented unto the court that there had been filed on the fourth day of May, 1907, by the plaintiff in this action a certain declination wherein he refuses to comply with the former orders of this court in regard to the production of certain boobs and paper writings at the trial of this cause and that the plaintiff now refuses and wholly fails to produce said books and paper writings in compliance with said order, and the defendant thereupon moved the court to give judgment for the defendant dismissing this action according to the statutes for such cases made and provided. And the court having heard the arguments of counsel and having been fully advised in the premises find that said representations are true and that said motion is well taken and that the same ought to be, and the same hereby is, granted.”

Then follows the dismissal. It will be observed that in the first order of the court which I have read, the court went beyond the motion, or the request of the motion; it not only ordered the production of these books and papers at the trial, but it ordered that the plaintiff in error bring these books and papers to some suitable place in the city of Toledo, three days before the trial and allow the defendant in error to there and then inspect them — which was something not asked for in the motion.

We think it is not competent for the court in ordering an inspection under R. S. 5290 (Gen. Code 11552), to require a party to remove his books, papers and documents from the place where they are ordinarily, properly and lawfully kept to some other place to permit the opposite party to there inspect them. It would not be competent for a court to require the plaintiff in error in this case to bring all the papers and boobs up from Cincinnati in order to make it convenient for the opposite party to inspect them here in the city of Toledo. If the right to inspect them existed and were to be enforced, it would devolve upon the defendant iñ error to go to the place where the records of the company were properly kept and deposited and there make the inspection. But not much is claimed for that part of the order by the defendant in error.

It is said that the other part of the order, to wit, the requirement that the books and papers should be present here Upon the hearing, was properly* made and should have been complied with, and that the* court, under R. S. 5289 (Gen. Code 11551), was authorized to do as it did in dismissing the case because that part of the order was not complied with. I have read part of the last journal entry, and what has been said about the declination and refusal that was put on file. Looking to the record touching that, we find that the plaintiff in error did not decline to furnish all books and papers required by this order, but that certain boobs which were in the hands of the receiver and which the receiver had been ordered by the court of common pleas of Hamilton county to keep therein that county, subject to the inspection of everybody interested in the company, were the ones which the plaintiff in error declined to produce, giving as his reason that he could not do so; that he was subject to the orders of the court of common pleas of Hamilton county and that that court had required by its order that he should keep those books there, and what purports to be a copy of the order is set forth in the record here.

But we have no bill of exceptions here, disclosing what evidence was in fact produced upon the hearing of these various matters in the court of common pleas, and, therefore, we must disregard certain affidavits referred to here, and certain journal entries from the court of common pleas of Hapiilton county, and must look to that which is strictly a part of the record, without a bill of exceptions. We have, then, the motion, requiring the production of these books and papers and the order of the court upon such motion. Now it is said in the order that the court was “fully advised in the premises”; it is said, therefore, that it should be presumed in suppórt of the order and judgment of the court in this matter, that the eourt was duly “advised” by evidence, and that it was thereby duly advised of each and every fact essential to the validity of its order.

In view of the requirements of the statute as to the showing that must be made in order to justify the making of such an order, to wit, that the writings contain evidence pertinent to the issue; in view of the fact that this motion does not declare that the writings contain evidence pertinent to the issue, and that the court does not find that the writings contain evidence pertinent to the issue, we are of the opinion that we should not go so far as is asked by the defendant in error in the way of indulging presumptions in support of this order. It seems to us like a most extraordinary order under the circumstances, and one likely to be very oppressive, and that we should hold, as we do, that in the absence of' any declaration in the motion; in the absence of any showing in the record; in the absence of any finding on the part of the court, that these paper writings contained' evidence pertinent to the issue, and in the absence of any clear declaration that the matter was heard upon evidence or that the court was duly advised, otherwise than by the motion and the arguments of counsel specifically referred to, that this order cannot be upheld. It will be reversed.

There are other sections of the statutes than those I have referred to that are in pari materia, especially those upon the subject of “discovery,” and under R. S. 5293 (Gen. Code 11555), or perhaps it is intended to be under all these sections, but following R. S. 5293, in Whittaker’s Annotated Civil Code we find a number of decisions referred to, which we have examined and which throw considerable light upon the question as to the showing that must be made in order to justify sueh an order. They are; Davis v. Dunham, 13 How. Pr. 425; Keeler v. Dusenbury, 8 N. Y. Sup. Ct. Rep. (1 Duer.) 660; Wood v. De Figamere, 25 How. Pr. 522; Case v. Banta, 22 N. Y. Sup. Ct. Rep. (9 Bosw.) 595; Morrison v. Sturges, 26 Plow. Pr. 177; Pegram v. Carson, 10 Abb. Pr. 340; Brooklyn Life Ins. Co. v. Pierce, 7 Hun. (N. Y.) 236; Merguelle v. Bank-Note Co. 30 N. Y. Sup. Ct. Rep. (7 Rob.) 77.

This section as to the production of documents was under consideration by this court in the case of Arbuckle v. Spice Co. 11 Circ. Dec. 743 (21 R. 347). By looking at that case counsel will discover that this court was careful to find from the evidence that the documents, and papers desired to be produced, or inspected, contained evidence pertinent to the issue; and in the New York practice reports to which I have referred, the courts are careful, very careful, upon that point, in order that they may conserve the beneficial purposes for which this statute is intended, and that it may not be used without authority, or oppressively. I shall not take time to read from these authorities, except a paragraph or two. I read from Brooklyn Life Ins. Co. v. Pierce, supra, where it is said:

‘ ‘ On a motion for an inspection of papers, the moving affidavit alleged the nature of the action; the fact that several letters had been written to the plaintiff; that they constituted the agreement set up in the answer; that they were material and necessary .to the defense, and contained evidence relating to the merits, and that without them defendant could not safely proceed to trial. Held, insufficient. Facts should be given which will 'enable the court to determine for itself whether the evidence is material.” ' '

And I read a part of the syllabus, only, in the case of Merguelle v. Bank-Note Co. supra;

“An affidavit on which a motion for a discovery, of books and papers is made, which merely alleges that there are in the possession of the defendants various letters, receipts and accounts, in the handwriting of the moving party, ‘containing evidence in relation to the subject of the action,’ and ‘to the merits of the action’ is not sufficient to enable the court to pass upon the question whether the contents of such books and documents are at all material as evidence in regard to any issue in the action. The plaintiff is not entitled to the inspection of all such books, merely to obtain information how, or in reference to what matters to get other evidence.
“Nor is. it sufficient that such books may possibly furnish such evidence. The documents must be set forth with sufficient precision to enable the court to determine for itself, Avhether they ought to be produced, as containing material evidence. ’ ’

As I haArn already pointed out, it is not even declared in the motion here that these papers and documents contain evidence pertaining to the issue, nor is there any such finding by the court, much less is there eAddence of a showing that they contain evidence pertinent to the issue.

For the reasons stated, the judgment of the court of common pleas will be reversed and the cause remanded.

Kinkade and Wildman, JJ., concur.


text:
    OFFICES AND OFFICERS — TAXES.
    [Cuyahoga (8th) Circuit Court,
    March 28, 1905.]
    Marvin, Winch and Henry, JJ.
    H. M. Brooks et al. v. M. A. Lander, Treas. of Cuyahoga Co. et al.
    Auditor may Expunge Changes in Duplicate Made by Unconstitutional Board to Correct Errors in Current Duplicate.
    Acts of de facto officers under a law held unconstitutional by the Supreme Court can have no prospective operation, especially where the de facto officers as such cannot be identified with any pre-existing officers, and the only vitalizing power given the officers was that by the unconstitutional act creating the office. Hence, the Supreme Court having held act 89 O. L. 283, creating a board of equalization and assessment invalid and ousted the board, the action of the board making deductions upon the duplicate may be corrected as an error and expunged by the auditor upon the current duplicate.
    [¿roof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Appeal from common pleas court.

      W. W. Boynton and Smith & Taft, for plaintiffs.

      G. W. Stage and Z. T. Armstrong, for defendants.
   HENRY, J.

This cause is here on appeal, having been commenced in the Cuyahoga common pleas court to enjoin the collection of certain taxes. After the board of equalization and assessment in the city of Cleveland was held, in State v. Molyneaux, 58 Ohio St. 736, and Gaylord v. Hubbard, 56 Ohio St. 25 [46 N. E. Rep. 66], to have been acting under an unconstitutional law, the county auditor expunged from the duplicate certain deductions from the taxable values of real estate made pursuant to the orders of said board. The persons affected now seek to have those deductions restored.

If the deductions, which the auditor thus corrected or expunged, can be regarded as mistakes, in the sense of being erroneous and void, they were in our opinion such mistakes as under R. S. 1038 (Gen. Code 2588), as construed in State v. Raine, 47 Ohio St. 448 [25 N. E. Rep. 54], he was entitled so> to correct. It is, however, contended by the plaintiff that those deductions were not erroneous, but valid, as having been regularly made by de facto officers in the exercise of powers which they were presumed to possess under color of then unchallenged law. It is pointed out that this court has refused to undo the acts of that board so far as their operation and effect are concerned prior to the decision in State v. Mo'lyneaux, supra. And the present case proceecls upon the theory that a like rule may be invoked with respect to the prospective operation of the same acts.

No case has been cited to us, and we know of none which thus applies the doctrine of de facto officers to the prospective operation of acts performed by the incumbents of merely de facto offices. It is claimed, however, that this was not merely a do facto office, but that it falls rather withiu the principle of Kirker v. Cincinnati, 48 Ohio St. 507 [27 N. E. Rep. 898.]. That was a case where one board was supplanted by another-having the same powers. The decision turned on this identity of powers. In the ease at bar the board was attempted to be clothed with powers substantially different from those conferred by the general statute. It was .expressly so held in Gaylord v. Hubbard, supra.

It is claimed, however, that the powers here exercised were not those which differentiated this act from the general statute but were in fact those authorized by general law. This claim does not, in our opinion, serve to bring this or any other action of this board within the rule of Kirker v. Cincinnati, supra. The fact remains that this bo-ard can not be so identified with any pre-existing board as to validate the prospective operation of its acts. 'Whatever vitalizing power the law which created the board may have given it with respect to the operation of its acts within its lifetime, it is certain that such power ceased when the board was ousted. Thenceforward its acts and its existence must be treated as wholly void so far, at least, as any prospective effects thereof are concerned.

' In the case of State v. Akins, decided May 12, 1899, not reported, this court did indeed determine that taxes paid without protest on additions made by this board while its statute was yet unchallenged could not be recovered back, and that it was not a mere clerical error for the auditor to omit to declare this statute unconstitutional and void and to disregard the •orders of the board under it. The error was a fundamental ■one and not to be reached by mandamus against the auditor. "With that decision we are still content. But we 'now hold that the decision of the Supreme Court, ousting the board, authorized the auditor thenceforward to treat as clerical errors the changes which had been made in the tax duplicate pursuant to, the board’s orders, and to correct them accordingly in the current duplicate. The. petition is therefore dismissed.

Marvin and Winch, JJ., concur.


text:
    BONDS — TRUSTS.
    [Hamilton (1st) Circuit Court,
    December 17, 1910.]
    Giffen, Smith and Swing, JJ.

       Charles I. Dreifus v. Union Sav. Bank & Tr. Co.
    Trust Company Liable for Bonds Certified by It and Fou,nd to be Worthless by Holder, Relying on Certificate.
    A trust company as trustee under a deed of trust or mortgage having certified that “this bond is one of a series of bonds mentioned in the mortgage or deed' of trust within referred to,” well knowing that none of the property described in such mortgage belongs to the mortgagor, and redelivering to the mortgagor the bond thus certified without restriction on its use, becomes liable to a pledgee of such bond who relied upon such certificate to his prejudice, regardless of the motive in making such certificate.

      Error to common pleas court.

      Lem 8. Miller and 'Wm. D. James, for plaintiff in error. .

      Lawrence MaxiueTl and Joseph 8. Gray don, for defendant in error.

      Reversed, no op., Union Sav. Bk. & Tr. Co. v. Dreifus, 87 O. S. 000; 58 Bull. 75.

   GIFFEN, P. J.

The original action was- commenced by Charles I. Dreifus to recover from the defendant, the Union Savings Bank & Trust Co., the face value .of six bonds for $500 each, with interest. The bonds were a part of a series of 500 bonds executed by the Georgetown Water, Light, Heat & Power Co., a corporation organized under the laws of the state of Kentucky, for the purpose of purchasing and taking over the property, rights, interests and franchises of the Georgetown'Water, Gas, Electric & Power Co., a corporation also organized under the laws of the state of Kentucky. To secure the payment of such'bonds the new company executed and delivered to the defendant as trustee a mortgage or deed of trust of the property, interests' and franchises of the old company, although the board of directors had authorized its execution only after the purchase of the property of the old company had been completed. The defendant accepted the trust, and signed the following certificate indorsed on the bond:

“It is hereby certified that this bond is one of a series of bonds mentioned in the mortgage or deed of trust within referred to. ”

Three hundred of these bonds as certified were, upon the order of the board of directors of the obligor, delivered by the defendant to Holzman & Company, brokers, who pledged six of them to the plaintiff, who afterwards discovered that they were and at all times had been worthless. He claims that he relied to his prejudice upon the certificate of the defendant as trustee, and that the same was a false representation of the identity and security of the bonds.

The purpose and effect of the certificate is made more apparent by the recital in each bond that:

“This bond shall not become obligatory until it shall have become authenticated by a certificate indorsed thereon, duly executed by said trust company, the trustee named therein.”

This statement prevented the bond from becoming obligatory until it was identified by the trustee as one of the series of bonds mentioned in the mortgage or deed of trust, and authorized such trustee to render it truthworthy by signing a certificate to that effect, although it could not reasonably be expected that it would thereby become a guarantor of the value of the security described in the mortgage nor of the priority of the lien.

But the certificate itself, when read in connection with other statements in the bond and the actual knowledge of the trustee of the whole transaction, becomes very significant and may amount to a representation of a material fact upon which an intending purchaser or pledgor may rely and recover if he suffers loss, not simply because the representation is untrue, but because the trustee knew it to be false and therefore fraudulent.

The language of the. certificate, “the mortgage or deed of trust within referred to,” directs us to the body of the bond Avhere we find the statement that “these bonds are secured by a deed of trust or mortgage,” whereas the deed of trust or mortgage under which the defendant was acting secured nothing, because none of the property described therein belonged to the mortgagor, and all of which was well known to the defendant. The statement that the mortgage was duly recorded in Scott county, Kentucky, is also found in the bond, whereas'the mortgage delivered to the defendant was not then and never has been recorded in Scott county, Kentucky, nor any other place, all of which the defendant well knew.

This identification of each of the six bonds, pledged to the plaintiff, as one of a series of 500 bonds secured by a recorded mortgage, while apparently true, is in fact false and known by the defendant to be false. It would be a novel construction of the legal duty of a trustee in certifying bonds to hold it to be a mere formal matter, unaffected by the actual knowledge he has of their infirmity. It is this knowledge of the falsity of the representations that makes them fraudulent, independent of the motive of the\defendant. Taylor v. Leith, 26 Ohio St. 428.

Counsel for defendant rely upon the ease of Tschetinian v. Trust Co. 186 N. Y. 432 [79 N. E. Rep. 401], where a certificate like the one in this case was held not to make the trustee a guarantor of the quality and extent .of the security, but the court is careful to .exclude all questions of fraud or deceit, active or passive.

In the case of Bauerschmidt v. Trust Co. 89 Md. 507 [43 Atl. Rep. 790], the decision is qualified by the statement, “the bonds being in fact secured by a mortgage of property.” In other words, there was an actual lien upon tangible property, and not a sham and false pretense. The plain duty of the defendant in this case, when ordered as trustee by resolution of the board of directors of the new company to deliver the bonds to Holzman & Company, was to withhold its certificate until the property described in the mortgage had been conveyed by the old company to the new company, the mortgagor; or if objection were made to this mode of transfer, then to require that the conveyance of the property, and the delivery of the bonds be simultaneous.

A prior resolution of the board of directors, set forth in the mortgage itself, authorized the president and -secretary to execute and deliver a first mortgage or trust deed upon all the property owned by the company, as soon as they shall receive the conveyance for the plants directed to be purchased. If this natural and sensible provision had been observed and followed there could be no legal objection to a delivery of the bonds by the trustee to Iiolzman & Company or to any other person designated by the board of directors; but in the absence of any property upon which the mortgage could operate as a' lien, the certificates and delivery of the bond by the trustee, with full knowledge of s.ueh defect, was inexcusable and fraudulent Counsel for plaintiff have.argued the case upon the ground of negligence ;.b'ut the pleadings and proof present a case of constructive fraud or gross negligence amounting to fraud.

It is claimed, however, that the act of the defendant in certifying the bonds and delivering the same to Holzman & Company was not the proximate cause of plaintiff’s loss; but that such loss was directly caused by the fraudulent pledge of the bonds by Ross Holzman, a member of Holzman & Company.

The certificate of the trustee was, according to the statement in the bond, the final, authentication that made them obligatory, and the delivery to Holzman & Company gave them apparent currency, the natural and probable consequence of which was to induce purchasers to rely upon them as being vkhat they purported to be. The loss to the plaintiff would have been the same had Ross Holzman sold the bonds to him for cash and accounted for the proceeds to the mortgagor. His firm was clothed with apparent authority of disposition, the bonds being complete in form and negotiable by delivery. The plaintiff was dealing with him as a broker and not as an officer of the mortgagor, and relied upon the certificate of the defendant as trustee. It seems quite clear therefore that the act of the trustee was the direct cause of the loss to the plaintiff.

The court erred in arresting the case from the jury at the close of plaintiff’s evidence.

The judgment is reversed and the cause remanded for a new trial.

On Rehearing.

Upon application for a rehearing of this case it becomes important to ascertain certain facts, as shown by the evidence, before applying the law. The bonds were, according to the resolution of the board of directors of the new company, delivered to Holzman & Company, “for and on behalf of this company,” and so far as the record discloses the defendant bank had no communication with them as to the disposition of the bonds, but apparently assumed that the right of disposition was absolutely in the board of directors of the mortgagor. Nor is there any evidence that Holzman & Company were given any direction by any one as to the disposition of the bonds. It is certain that they were not the agents of the bank, and no trust or confidence was reposed by the bank in the firm or any member thereof with respect to the bonds. Colonel Nelson, the president of the new companyj told Mr. Stark, the trust officer of the bank, that it was necessary to have the bonds to consummate the deal and effect a transfer of the property from the old company to the neiv; but there was no assurance by the board of directors that this would be done. It is apparent, however, from the resolution of the board of directors of April 21, 1905, which is set forth in the trust deed or mortgage, that it was wholly unnecessary to deliver' the 300 bonds to Holzman & Company, in order to effect a transfer of the property:

‘•‘Be it resolved that the president and secretary of this company be empowered, authorized and directed upon receipt from the Georgetown Water, Gas, Electric & Power Company of a proper and sufficient conveyance in fee simple of all the property, rights, franchises and contracts belonging or appurtenant to the Georgetown Water, Gas, Electric & Power Company of a proper and sufficient conveyance in fee simple of all the property, rights, franchises and contracts belonging or appurtenant to the Georgetown Water, Gas, Electric & Power Company to pay it therefor two hundred and fifty thousand ($250,000) dollars, par value of the capital stock of this company, and one hundred thousand ($100,000) dollars first mortgage bonds of this company. ”

.The trust officer of the bank knew -the contents of the mortgage including this resolution, and retained 200 of the bonds amounting to $100,000, for the purpose therein expressed. The other 300 bonds were intended for distribution among the stockholders and Colonel Nelson so told Mr. Stark at the time. It seems not to have occurred to Colonel Nelson nor Mr. Stark that the trustee whose certificate gave life to the bonds ought to have retained possession of them until the property, intended to seeuye their payment, was conveyed or about to be conveyed to the mortgagor.

The bank did not retain even constructive possession or control of the bonds, although it accepted the trust for a valuable consideration.

In the ease of Westwood (Bd. of Ed.) v. Sinton, 41 Ohio St. 504, relied upon by counsel for defendant in error, the board took up and paid certain bonds issued by it and left them with its treasurer, who was also a member of the board, with instructions to cancel them, which he failed to do, but negotiated them before maturity as collateral security for a loan. Held-'

“There was no negligence on the part of the board in not seeing that its treasurer complied with its instructions to cancel the bonds.”

The treasurer was not only the custodian of the bonds, but was charged by the board with the performance of a specific act with reference to them.

If the bánk in the case before us had placed the certified bonds in the hands of one of its officers with instructions to deliver them only when the property intended for their security was acquired by the mortgagor, the facts would be inore like those in the case cited.

Although the bonds were delivered to Ilol'zman & Company on the order of the board of directors of the obligor, they were in law delivered to the latter, without any restrictions by the bank on their use.

When Mr. Stark testified that the purpose in delivering the bonds was to effect a transfer of the property of the old company to the new company, he evidently referred to the purpose expressed by Colonel Nelson, as he nowhere discloses any purpose on the part of the bank other than to obey the order of the board of directors of the new company. Such company was entitled to the possession of its own bonds after being certified, provided they were in fact what they purported to be; but when the certificate was false the obligor was no more entitled to the unrestricted possession than a stranger would be.

Farmers’ Bank v. Safe & Look Co. 66 Ohio St. 367 [64 N. E. Rep. 518; 58 L. R. A. 620; 90 Am. St. 586], was a ease of a stolen certificate of stock, wherein it was held that a pledgee in good faith acquired no title to the stock as against the real owner.

The case of Baxendale v. Bennett, 3 Q. B. D., 525, is of the same nature, and while it is true that Bramwell, L. J., asks the question at page 530,

“Is it not á rule that every one' has a'right to suppose that a crime will not be committed, and to' act on that belief?” yet he significantly adds on the same page:

“The defendant here has not voluntarily put into any one’s hands the means, or part of the means, for committing a crime.”

That is the precise distinction in the case before us. The bank after certifying to the identity of the bonds, voluntarily and unnecessarily parted with possession and thereby furnished ■ the means for committing a crime as well as the means for deceiving the public, of which plaintiff was one only.

Upon the same principle the railway company was held liable in the ease of C. N. O. & T. P. Ry. v. Bank, 56 Ohio St. 351 [47 N. E. Rep. 249; 43 L. R. A. 777], and the ease of Westlake Board of Ed. v. Sinton, supra.

The allegation of the petition that the bonds were delivered to Holzman & Company for “the purpose of negotiation and sale” was not at the trial supported by any evidence of an active present intention to so deliver them; but it does appear that the bonds were in such form that delivery to any one put in his hands all the means for such use..

The difficulty in the case is one of fact rather than law, and while our findings from the evidence may differ from those which a jury or other tribunal might make, yet it is reasonably certain that the transaction was unusually careless and such as a reasonably prudent man would shun because of the risk.

A rehearing of the case is therefore refused.

Smith and Swing, JJ., concur.


text:
    MASTER AND SERVANT — NEGLIGENCE—PLEADING.
    [Cuyahoga (8th) Circuit Court,
    June 8, 1908.]
    Marvin, Winch and Henry, JJ.

      Robert R. Lee v. Standard Tool Co.
    1. Act 97 O. L. 547 Abolishes Doctrine of Assumed Risks in Case of Unguarded Machinery.
    The effect of act 97 O. L. 547 (Gen. Code 6243), prescribing that the risk of unguarded machinery, etc., shall be assumed by the employer, is to abolish the doctrine of assumption of risk by employes who continue in the service with knowledge, express or implied, of dangers ip consequence of which they suffer inju-y, if the sufferance of the source of danger amounts to a vio'ation by the employer of a penal statute, state or national; hence a petition for negligence to an employe alleging that plaintiff was without knowledge, but failing to allege that he was without equal means with the defendant of knowing the source of danger, or that by the exercise of ordinary care would not have known thereof, is not defective in a cause of action arising under such section.
    2. Statute Limiting Recovery to $3,000 Applicable to Cause under it Notwithstanding Prayer for $10,000.
    Inasmuch as act 97 O. L. 547 (Gen. Code 6243 et seq.), limiting recovery to $3,000 damages in actions for wrongful death resulting from failure to guard or protect machinery, creates no new cause of action, but may be invoked “in any action” involving employer’s liability for injuries to employes, a petition praying for $10,000 damages is not an election not to invoke the limited liability contemplated by this act when the right of recovery depends solely upon its provisions.
    3. Exposed Cog Wheels beside Space of Eighteen Inches not Used as Passageway within Contemplation of Statute.
    Act 94 O. L. 42 (Gen. Code 1027), providing for safeguarding machinery, among which are “exposed cog wheels,” applies to a space not exceeding eighteen inches, on one side of which cog wheels are revolving at the height of a man’s coat; and though such space was not intended for nor used in fact as a passageway an employe passing through such space at the direction of the foreman, comes within the protection of the statute.
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Error to common pleas court.

      McGrath & Stern, for plaintiff in error.

      Hoyt, Dustin, Kelley, McKeehm & Andrews,, for defendant in error.

       Affirmed, no op., Lee v. Tool Co. 83 O. S. 501.

   HENRY, J.

This was a personal injury damage case wherein a verdict for defendant was directed by the court. It is complained here that this action was taken by the court before plaintiff had rested, but an examination of the bill discloses the fact that plaintiff announced the conclusion of his evidence bearing upon the cause and manner of the accident before this action of the trial court was taken, and we find no error in this behalf.

The facts are as follows:

Plaintiff was an experienced employe in defendant’s shop and on' October 4, 1906, he went into a room or department where many lathes were in operation and where he had been only once or twice before. He was in search of a certain tool, which, after some delay, he caught sight of and started to go by a passageway, around certain moving machinery, to get it. His foreman thereupon' accosted him and ascertaining what he wanted, told him to go directly between certain lathes which stood fifteen or eighteen inches apart, and get the tool in question. In doing so his coat was caught in cogs that were revolving at the end of one of said lathes and he was severely- injured.

The conversation with the foreman is not set up in the petition, but is alleged in the reply. Thus it has no bearing upon plaintiff’s cause of action, but bears only upon the defense of contributory negligence set up in the answer. The petition, moreover, fails to allege that plaintiff was without equal means with the defendant of knowing the- source of danger from which he suffered his injury, or that by the exercise of ordinary care he would not have known of the same, although' it does allege that he was without knowledge.thereof.

It is claimed, however, that notwithstanding this omission the petition states, a cause of action under R. S. 4364-89c (Gen. Code 1027) and R. S. 4238o-1 (Gen. Code 6243, 6244). The former section requires, under penalty, that owners and operators of factories and workshops provide for “the enclosure of all exposed cog wheels,” and the latter section provides that:

“In any action brought by an employe, or his legal representative, against his employer, to recover for personal injuries, when it shall appear that the injury was’caused in whole or in part by the negligent omission of such employer to guard or protect his machinery or appliances, or the premises or place where said employe was employed, in the manner required by any penal statute of the state or United States in force at the date of the passage of this act, the fact that such employe continued in said employment with knowledge of such omission, shall not operate as a defense; and in such action, if the jury find for the plaintiff, it may award such damages not exceeding, for injuries resulting in death, the sum of five thousand dollars, and for injuries not so resulting, the sum of three thousand dollars, as it may find proportioned to the pecuniary damages resulting from said injuries.”

The effect of the section last quoted is in all cases to which it applies, to abolish the doctrine of the assumption of risk by employes who continue in the service with knowledge, express or implied, of dangers, in consequence of which they suffer injury, where the sufferance of such source of danger amounts to a violation by the employer of any penal statute, state or national; and in any such case the rule of pleading prescribed in Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 598 [38 N. E. Rep. 857], can have no application.

If the cause of action pleaded and proved in the court below falls within the purview of these statutes, and there was no contributory negligence on the part of the plaintiff, the action of the court below in directing a verdict for defendant was -erroneous and the judgment should be reversed.

It is said, however, that R. S. 4238o-l does not apply to the case before us for two reasons: First, because plaintiff has elected not to invoke the limited liability contemplated thereby in praying for $10,000 damages instead of confining the amount demanded to the sum of $3,000 as in said section provided. Secondly, the petition alleges that he had no knowledge of the exposed cog wheels, whereas said section contemplates only cases in which the employe continues in the employment “with knowledge” of the omission to comply with the statute in any such particular.

We are unable to accept this construction of the statute in question. It does not purport to create any new cause of action, but instead its provisions are applicable by its express terms “in any action brought by an employe * * * to recover for personal injuries,” etc. The amount of recovery in such eases is indeed limited to $3,000, but the fact that plaintiff has prayed for more than, under this statute, he can recover, does not, we think, render a petition demurrable, when the right of recovery depends solely upon this section. Inasmuch as this section may be invoked “in any action” of employer’s liability for injuries to his employe, there is no opportunity for election between the common law and a so-called statutory action. In many states where employer’s liability codes have been enacted, such right of election is specifically reserved to the plaintiff, and it is undoubtedly true in all cases where a new right of action is created by statute to exist in addition to and parallel with similar common law actions, the plaintiff must elect between them, and having elected, be held to pursue his rights accordingly. But such is not the case here.

It is objected further that the evidence in the case before us clearly shows that there were “no exposed cog wheels,” within the meaning of R. S. 4364-89c. It is urged that if cog wheels are left uncovered at some point near the ceiling of a room, where employes cannot in the ordinary course of things come in contact with them, or where they are revolving elsewhere than upon the exterior of any machine, or indeed in any place where employes will not, in the due course of their employment be apt to come in contact with them, the statute does not apply. This contention is no doubt correct, but we are not able to say from the evidence adduced in this case, and we think the court below could not properly say, that such was the state of facts here. Of course a space fifteen or eighteen inches wide, on one side of which cog wheels were revolving at the height of a man’s coat, can hardly be said to be intended for a passageway, and the evidence introduced or offered here does not tend to show that prior to the happening of this accident this space in fact Was used as a passageway for employes; but it is in evidence that both plaintiff and his foreman thought proper for him to use it as such, and if the cogs had not been exposed, it is not unreasonable to suppose that a space fifteen or eighteen inches wide might safely be used as such. To say that the revolving cog wheels were in themselves a warning that the space was not intended for that purpose and must not be used by employes to walk tbrongb, is but to beg the question. If anyone did go through there, the cog wheels were manifestly exposed as to him. Plaintiff says that he did not know that there were any exposed cog wheels there, and if so, he did not know that this bar to the use of the space in question, as a passageway, to walk through, existed.

It remains, therefore, only to determine whether the court was justified in directing a verdict upon the theory that the plaintiff was, as a matter of law, guilty of contributory negligence. We think, in view of his testimony that the foreman directed him to go through that space and that he had no knowledge of the uncovered cog wheels, the conclnsion cannot be drawn as a mere matter of law, that he was wanting in the exercise of ordinary care in taking this route. It was rather a question of fact for the jury to determine.

We hold that the court below erred in directing the jury to return a verdict for the defendant, and the judgment of the court of common pleas is reversed and the cause remanded.

Marvin and Winch, JJ.. concur.


text:
    MASTER AND SERVANT — PLEADING—TRIAL.
    [Huron (6th) Circuit Court,
    1910.]
    Parker, Wildman and Kinkade, J7.

      Eva Hazelbach, Admrx. v. Ohio Cultivator Co.
    1. Alleging That Emery Wheel on Certain Day Ran at Unusual, Excessive and Dangerous Speed Held Sufficient Without Negative Averments as in Defective Machinery Case.
    A petition alleging that an emery wheel was operated on a certain day at an unusual, excessive and dangerous rate of speed which caused it to burst and kill plaintiff’s decedent is good as against the. claim that, sho^'inz a defective condition or a dangerous place to work, it must also allege a lack of knowledge of the defect or the danger on the part of the deceased.
    2. Mere Knowledge of Speed at Which Emery Wheel is Operated not Sufficient to Charge Assumption of Risk.
    Where an emery wheel, operated at a high and dangerous rate of speed, bursts and kills an operative, and the allegations and proof show that the deceased was a skilled operative and had worked for a period of five or six years at this occupation, it can not be said as a matter of law that he assumed the risk of the danger attending the revolution of the wheel by his employer at such a dangerous and excessive rate of speed, in the absence of proof showing that he both knew the rate of speed of his wheel and the danger attending the operation of such a wheel at that rate. The mere knowledge of the rate of speed itself would not be sufficient to charge him with assuming the risk unless he also knew the danger attending that particular rate of revolution. Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. Rep. 5S5], cited and distinguished in application to this case.
    3. Circumstantial Evidence of Cause of Breaking Emery Wheel and Comparison of Probability of Causes Require Submission to Jury.
    Where there is no direct evidence of the cause of the bursting of an emery wheel and it is claimed that the excessive speed of operation caused it to burst, and the proof shows that the wheel was being operated at a rate of speed likely to cause it to burst, and a piece of the broken wheel shows a gouge in its face which might have been caused by the catching of the material being ground between the wheel and rest attached to the machine, and the proof further shows that such catching is also likely to cause the bursting of a wheel, unless there is proof that the latter cause was more probable than the other the case should be left to the jury to decide as to the cause of the bursting. Lake Shore é M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26].
    Error to Huron common pleas court.

      Ben. B. Wickham, L. W. Wickham, for plaintiff in error.

      A. V. Andrews, for defendant in error.

      Affirmed, no op., Ohio Cultivator Co. v. Hazelbach, 87 O. S. 000; 57 Bull. 471.

   KINKADE, J.

This was an action brought to recover for the negligent killing of John Hazelbach, upon the bursting of an emery wheel he was working upon in the factory of the defendant.

' The petition alleges three grounds of negligence:

First, that the wheel was run at a high, unusual, excessive and dangerous rate of speed that caused it to burst; second, that the wheel was one different from what had usually been used in the factory and ivas of a character likely to burst; third, that no guard was used in the use of the wheel as it should have been.

No proof was offered on the last two grounds of negligence mentioned, but the case was tried on the ground of excessive and unusual speed causing the wheel to burst by that alone.

At .the close of the plaintiff’s case, the court directed a verdict for the defendant on the motion of the defendant, and as appears by the file mark of the amended petition, but nowhere else, an amended petition was filed in which the plaintiff alleged that John Hazelbaeh did not know the dangerous rate of speed, or did not know that the speed was dangerous. The amended petition does riot mention any journal entries that were furnished, but we find by reference to the file mark, on the back of it, that it was filed in the case.

It is said that the petition, with the last two grounds of negligence out of it upon which no proof was offered, does not state a cause of action because it does not contain this matter that was in the amendment to the petition; and that the amendment to the petition should not have been allowed to make it good, after the court had decided to take the case from the jury, and put into it that which was essential it should have; and, consequently, the court was wrong in allowing this amendment to the petition, although the court was right’ in withdrawing the case from the jury.

We are cited to Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857]; Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Rep. 725], and Hesse v. Railway, 58 Ohio St. 167 [50 N. E. Rep. 354], as supporting this proposition. We think the authorities cited do not go to the length contended for by counsel. It is not the ease of defective machinery or a dangerous place in the sense contemplated in this case. The allegation in the petition is that at this time, not for a long time prior to this, but at this particular time, on the day mentioned, the wheel was caused to be revolved by the negligence of the defendant at a high, unusual, excessive and dangerous rate of speed, and it is said that because the petition does not contain the statement that plaintiff did not know the rate of speed, and that if he did know, he did not know it was dangerous, that the petition is so defective as that the ease should have been taken from, the jury. We cannot concur in that proposition; we think the petition was good in that Regard. Proof was put in without objection, as counsel for plaintiff in error contend, because he could not object and have it sustained to any proof coming in, there being the other two -allegations of negligence in the petition.

It is said now, that the court was correct in taking this ease from the jury because John Hazelbach, as shown by the record, to have been an experienced employe and therefore under the authorities, Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. Rep. 585], he must be held to have known, and knowing, to have-assumed the dangers arising from the matter of which the plaintiff in error now complains; he must be held not only to know the speed, but he must be held to know the probable result of that speed. We think this is carrying it further than the doctrine in any case has carried it; we think it is not true that because a man knows the speed at which a machine is moving, or a wheel is moving, that it necessarily follows that he knows the result of that speed and that the centrifugal force generated is sufficient to burst that wheel with the same result as obtained in this case. In fact, the court declined to hold that a man with far more experience, as we view it, not in operating the wheel, but generally in this factory, could tell what his judgment was as to whether 1400 revolutions were dangerous or not; but when we come to the testimony of the experts in this case, we think this record very fairly shows that a speed of 1400 revolutions was a highly dangerous rate of speed for a wheel of this dimension, 18 inches.

The testimony of one of the witnesses we think was sufficient to take the ease to the jury upon the question of negligence in employing that rate of speed at that particular time. The petition does not state or allege that it was the usual rate of speed, but alleges it was an unusual rate of speed.

It is an open question under the evidence as to whether it was the speed at-which that wheel was run.

■ We think upon an examination of the record that it cannot be successfully claimed that this man, with the experience that lie had, must be held to know either the speed accurately, or the result of the speed and there being evidence in the ease that the speed is- dangerous at 1400 revolutions per minute, evidence for the jury to consider, in that regard at least, and reaching the conclusion that we do, we think this man is not bound, although a man of sonie years’ experience, to know the effect of a wheel ^evolving at that rate of speed.

We think those two facts standing alone in this regard are sufficient to taire this case to the jury and that therefore the action of the court below in withdrawing it from the jury was erroneous and that the judgment of the court of common pleas must be reversed accordingly.

I might add here that it is^ contended on the part of the defendant in error that the gouge shown upon the face of the wheel taken in connection with the evidence in the case, clearly showed that this accident was just as probably due to some other agency as it was to the bursting of the wheel by an excessive and dangerous rate of speed at which it wrns revolved. This on the authority of Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26].

We have carefully considered that phase of the case in connection with the evidence, and we think it is not of such a character as would at all justify the court in saying, with' that evidence in and with the other evidence in the case relating to the exploding of the wheel by virtue of its dangerous rate of revolution, that one was just as probable as the other and for that reason that he might -withdraw the case from the jury. We think that was to be considered.with such weight as it has, and that it certainly should have passed to the jury.

Parker and Wildman, JJ., concur.