text:
    ATTACHMENT AND GARNISHMENT
    [Cuyahoga (8th) Circuit Court,
    June 7, 1909.]
    Henry, Marvin and Winch, JJ.
    Charles Scharfenburg v. W. T. Parsons. Edward J. Callahan v. The Kennedy Furniture Company.
    One Creditor may Garnishee Ten Per Cent. Notwithstanding Debtor Paying Statutory Amount to Another.
    A voluntary payment by a debtor of ten per cent, of his monthly earnings to one creditor for necessaries is no bar to a garnishment of ten per cent, by another creditor, under the provisions of Sec. 6501 R. S. (Sec. 10269 G. C. et seq.)
    Error.
    J. Grossman and Charles Scharfenburg, for plaintiffs in error.

      William, A. Spill, Edward J, Callahan and Nathan Loeser, for defendants in error.
   HENRY, J.

These two cases originated in justices’ courts and involve a construction of “An act to amend Sec. 6501 R. S. (Sec. 12069 G. C. et seq.) as amended April 26, 1898,” passed April 16,1900 (95 O. L., 376), allowing personal earnings to be garnisheed for debts for necessaries to the extent of ten per cent, per month and costs of suit not exceeding $4.

The precise point in controversy is whether a debtor’s voluntary payment of such 10 per cent, to one of his creditors bars another’s resort to this statute within thirty days thereafter. We think it does not. Whether it would be otherwise if such payment were involuntary is a question not before us. Such a distinction between voluntary and involuntary payments would, however, sufficiently protect debtors’ families against repeated attempts within a single month to take tithings of their blood and sweat. But to hold that mere voluntary payments when made without either demand or process may be a bar, would be to open wide the door to frauds upon the law. At all events we hold that the language of the statute neither requires nor warrants such a construction, and the judgments below are affirmed.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    FRAUDS, STATUTE OF
    [Cuyahoga (8th) Circuit Court,
    May 24, 1909.]
    Henry, Marvin and -Winch, JJ.
    William F. Sauer et al. v. Walton Realty Co.
    Modification of Land Contracts not Subject to Statute of Frauds.
    When a contract for the sale of land has. been properly executed in writing, subsequent agreements between the vendor and vendee, as to the pecuniary liabilities growing out of the transaction, which do not take away or confer any interest in the land, but only determine the time when the purchase money becomes due, are not affected by the statute of frauds.
    Error.

      George G. Iiafley, for plaintiff in error.

      W. B. Beebe, for defendant in error.
   HENRY, J.

The relation of the parties here is the reverse of that in the court of common pleas. The petition in error prays for a. reversal of the order of that court appointing a receiver in an action to foreclose a land contract. .The petition below alleges default in payment of installments of the purchase price stipulated in the written agreement between the parties. At the outset of the ease below, plaintiff moved for the appointment of a receiver, but before this motion was acted upon, the defendant interposed an answer, alleging among other things that the provisions of the written agreement, in regard to the times of payment and amounts of installments, had been modified by subsequent oral agreement between the parties, in accordance with which the defendants had paid or tendered all installments of the purchase price as they fell due. No reply was filed, but the court upon hearing the motion for good cause shown granted the same, and appointed a receiver.

No bill of exceptions is presented here by which the finding of fact, as to good cause shown, can be reviewed. But in the absence of a reply the fact stood admitted, that the defendants below were not in default under the modified agreement as set out in the answer. Beach, Receivers, 151. The sole question, then, for our consideration, is one of law, namely: Whether or not, under our statute of frauds, a contract in writing for the sale of land may be subsequently modified in the manner already described, by oral agreement. The answer does not allege that in consideration of the promise of the defendants below to pay monthly installments of $25 instead of $20 their obligation to make a certain stipulated payment of $200 at a time named, had been waived by the plaintiff below.

Counsel have cited many authorities, chiefly from another jurisdiction, but they seem to have overlooked the case of Negley v. Jeffers, 28 Ohio St., 90, which appears to us to be decisive of the matter in this jurisdiction. Paragraph 6 of the syllabus of that ease is as follows:

“When a deed to real estate has been executed, or title in any other way passed, subsequent agreements between vendor and vendee, as to the pecuniary liabilities growing out of the transaction which do not take away or confer any interest in the land, bnt only determine the time when the purchase money becomes due, are not affected by the statute of frauds. ’ ’

A deed there was in escrow pending fulfillment of certain conditions, some of which were waived by parol.

Title had passed in that case, only in the sense in which it has passed here.

The new basis of payment here was acted upon so far as to estop the plaintiff to claim that the oral modification, if made, is invalid, because not to be wholly performed within one year.

It thus appears that the answer in this case presents a valid defense, and so long as it stood undenied by reply, the court below was vested with no power or discretion to appoint a receiver in aid of the foreclosure.

The judgment of the court of common pleas is reversed and the cause remanded.

Marvin, J., concurs.

Winch, J., not sitting.


text:
    INTOXICATING LIQUORS
    [Cuyahoga (8th) Circuit Court,
    February 1, 1909.]
    Winch, Henry and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Marvin.
    Rose Hanzel v. Charles Telschow.
    N,o Recovery for Injury to Third Person if Sale of Intoxicants was Lawful.
    No recovery can be had under Secs. 4357 and 4358 R. S. (Secs. 6203 to 6205 G. C.), from one who has sold liquor to another who injured plaintiff while intoxicated, unless the sale of liquor was unlawful.
    Error.

      E. M. Bull and W. C. Rogers, for plaintiff in error.
    W. T. Clark, for defendant in error.
   HENRY, J.

Upon demurrer to the petition sustained, the court of common pleas rendered a judgment for the defendant below. The action was brought under Secs. 4357 and 4358 R. S. (Secs. 6203 to 6205 G. C.), to recover damages alleged to have been sustained by the plaintiff in consequence of the sale by the defendant of intoxicating liquors to her husband, whereby he was made drunk, and while in that condition inflicted the injuries complained of.

The point upon which the decision below turned was that the sales were not alleged to be unlawful; but it is urged here that the necessity of pleading and proving unlawfulness under the authority of Baker v. Beckwith, 28 Ohio St. 314, and Lyon v. Fleahman, 34 Ohio St. 151, is now obviated by the provisions subsequently incorporated into the law by 72 O. L., 35, and 93 O. L., 371, providing for notice.

The Supreme Court has-not yet construed the requirement of notice in Sec. 4358, as bearing upon the alleged enlargement of the liability created by Sec. 4357, but it has passed upon the effect of the general notice in this behalf formerly required thereby and by Secs. 4359 and 4360 R. S., now repealed, and has clearly intimated in Mullen v. Peak, 49 Ohio St. 447, 458 [31 N. E. 1077], and Casey v. Painter, 50 Ohio St. 527 [38 N. E. 24], that those provisions as to notice did not obviate the necessity of pleading and proving the unlawfulness of the sales of liquor relied on to make out a case of liability, under Sec. 4357. The opinion of the court in Kolling v. Bennett, 10 Circ. Dec. 81, (18 R. 425), implies that the same requirement is deemed to exist still under the present statute.

We feel bound by the construction which the Supreme Court has put upon Sec. 4357, and adhered to after the element of notice was incorporated by the general assembly into the law. The judgment is therefore affirmed.

Winch and Metcalfe, JJ., concur.


text:
    ACCOUNTS — EVIDENCE
    [Cuyahoga (8th) Circuit Court,
    January 25, 1909.]
    Winch, Henry and Metcalfe, JJ.
    Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Marvin.
    M. A. O’Brien v. W. J. Westgate Co.
    Proof of Account by Means of Sale Slips Carrying Balance.
    Slips upon which all sales are written with the balance carried ' forward from one slip to another are admissible in evidence as original entries when no other books are kept, but a balance upon a slip obtained from a prior slip since destroyed is not admissible.
    Error.

      Morton W. Cope, for plaintiff in error.

      F. T. Cullitan, for defendant in error.
   HENRY, J.

The action below originated in a justice’s court with the parties standing in the relation opposite to that in which they stand here and stood in the court of common pleas. The bill of particulars made claim for recovery for necessaries, to wit, groceries sold by the Westgate Co. to O’Brien, and judgment was rendered for the full amount claimed.

O’Brien prosecuted error to the court of common pleas where the judgment of the justice’s court was affirmed, and error is now prosecuted to this court.

The bill of exceptions does not purport to set forth all the evidence, but simply enough to show the error relied upon, to wit, the admission in evidence of sundry sales slips which, taken in chronological order, were posted by carrying forward the total from one slip to another, so that the aggregate thus written upon the final slip embraces the amount of all the items of groceries sold, as indicated in the whole number of slips. Not only was the admission in evidence of these slips by the trial court objected by O’Brien upon the ground that they were not properly books of account or of proper original entry, but the first slip in particular was objected to for the reason that it purported to commence with the balance brought forward from previous slips said to have been destroyed upon the rendition of a statement of account to that date.

No other books of account were kept by the Westgate Company, and it is suggested in argument before us that this method of bookkeeping is now almost universal amongst retail tradesmen in this community.

Without determining whether strictly speaking the slips admitted in evidence together constitute a book account, properly soealled, within the meaning of our statute, it is clear that in so far as this account embraced the original entries made in the usual course of business, they were admissible. The first slip, however, so far as it includes and carries into account a balance derived from previous slips, now destroyed, is clearly not an original entry of this sort, and is therefore not admissible in evidence upon that theory. But the bill of exceptions discloses an effort to prove an account stated to the amount of this balance in the presentation of an itemized statement thereof to O’Brien’s wife, by whom the purchases were made and from whom, after the presentation of said statement, a payment on account of $25 was received by the company and duly credited on one of the subsequent slips in evidence. This,- of itself, would' not suffice as proof of. an account stated between the parties to the action, because although O’Briens wife may be presumed to have made whatever purchases of groceries she negotiated with authority implied in law to charge her husband therefor as necessaries for family use, yet her agency thus arising can not be deemed to extend to an implied authority from her husband to state an account as between him and the creditor here.

The bill of exceptions does not disclose whether this link in the chain of evidence ■ sought to be produced was supplied by testimony tending to show that the husband had in fact conferred upon his wife the necessary authority to bind him in such a statement of account between him and the company. With this link supplied the sum total of the account stated might well become the subject of an entry carried ’forward and incorporated into the subsequent accounts kept by the company of its sales to O ’Brien. The .question is not to be approached as if the evidence eompalined of were manifestly inadmissible. In that event, we should have no alternative but to say that the error committed in admitting such testimony was presumably prejudicial to the plaintiff in error. Eather must this assignment of error be considered from the standpoint of admissibility of the evidence pursuant to the theory, of the case actually entertained by the plaintiff, as disclosed by the bill of exceptions, for aught the bill of exceptions discloses, evidence was produced, which according to this theory, would render the evidence complained of perfectly competent. Upon this assumption, we can not say that any prejudicial error was committed in admitting the first slip in evidence.

We find no error in the record and the judgment below is affirmed.

Winch and Metcalfe, JJ., concur.


text:
    ACTIONS — DEATH—RES ADJUDICATA
    [Cuyahoga (8th) Circuit Court,
    January 11, 1909.]
    Winch, Henry and Marvin, JJ.
    Abbie A. Johnson, Admx. v. Cleveland, C. C. & St. L. Ry.
    Action for Wrongful Death Barred by Action for Personal Injuries by Decedent.
    When an action for personal injuries had been begun by a decedent and prosecuted to judgment by his administrator after his death, it is a bar to another action by the administrator for wrongful death of decedent resulting from the same injuries as those upon which the previous suit was predicated.
    Error.

      Edward 8. Meyer, for plaintiff in error.

      Cook, McGowan & Foote, for defendant in error.
   HENRY, J.

This was an action for death by wrongful act which resulted in a verdict and judgment for the defendant, by direction of the court, because of former adjudication of the issue of negligence between the same parties in an action for personal injuries brought by the plaintiff’s decedent in his lifetime and upon his death prosecuted to final judgment, after revivor in the name of his personal representative, who is also the plaintiff here. In that action the jury rendered a verdict for the defendant, upon the merits, and the judgment rendered upon that verdict was set up by answer as a bar to the maintenance of the second action, which was for wrongful death.

The parties to both actions are identical, and the issue of negligence in both cases the same. It is urged, however, that the administratrix in the second case sued in a different right, representing the widow and children as next of kin of the decedent for damages sustained by them in consequence of his death, whereas in the first action the administratrix maintained her action for the benefit of the estate of said decedent and those who as creditors or distributees might be interested therein for the recovery of damages sustained by thé injured person.

The decedent left a widow and children, who alone are interested in the avails of any recovery for the death by wrongful act.

In the former ease the same persons were all likewise interested as distributees of the decedent’s estate, although it is true that the assets of the estate produced by any recovery in that action might all be consumed in satisfying the debts, if any, of the estate. It follows, therefore, that in both cases the administratrix in fact represents the same persons, who seek to benefit by recoveries founded upon one and the same act of negligence as the proximate cause of a single bodily injury, giving rise, when death ensued, to two distinct rights of recovery.

The gist of each case is the wrongful act complained of, and its wrongfulness can not be twice litigated by or for the benefit of the same persons.

The judgment in the first case is conclusive upon all parties concerned in the determination of this issue.

We hold, therefore, that the defence of former adjudication, was rightfully allowed and the judgment below is affirmed.

Winch and Marvin, JJ., concur.


text:
    NEGLIGENCE — WITNESSES
    [Cuyahoga (8th) Circuit Court,
    December 28, 1908.]
    Winch, Henry and Marvin, JJ.
    Frank Orlinkowski v. Bernard Glowik, an Infant.
    1. Witness must Qualify as Expert before Giving Opinion Evidence.
    It is error to. permit a witness who has. not qualified as an expert to express an opinion as to whether or not a certain appliance • is dangerous.
    2. Mode of Using Highway Competent in Defense for Personal Injuries.
    When an action is for personal injuries to plaintiff while upon a highway' caused by defendant’s alleged negligence, it is competent for the jury to consider the defendant’s mode of using the highway.
    3. Duty to Employ Reasonably Competent Men and Safe Appliances.
    It is error to charge that it is defendant’s, duty to employ reasonably competent men and reasonably safe appliances when there is no allegation in the petition as to the incompetence of defendant’s employes, other than the allegation that they were negligent on this occasion.
    4. Contributory Negligence not Burden of Defendant not Raising Issue.
    It is error to charge that the burden of proving contributory negligence is upon the defendant, when that issue is not.:raised ■ by the pleadings and an averment in the answer that the injury . was caused by plaintiff’s ■ negligence is not an averment of contributory negligence.
    Error.

      Foran, Pearson & Powell, for plaintiff.

      T. J. Boss, for defendant in. error.
   HENRY, J.

Bernard Glowik, then ten years old, was injured October 6, 1905, by becoming entangled in a new wire cable which was used by the plaintiff in error to help haul his wagons loaded with brick up a hill in an almost disused portion of old Pearl street in Cleveland. The cable was rigged with pulleys in such a manner that a wagon going down hill would aid in pulling a loaded wagon going up. The boy had been sent for tobacco by one of the men employed in this work, and while alongside the cable, as it was dragging on the ground, after being detached from one of the wagons, he was caught by the hook at the swaying or coiling free end of it. He alleges that he was then in the exercise of ordinary care and that his injury resulted from the negligence of the defendant below. The answer avers that Glowik’s injury occurred by reason of his own negligence and carelessness and not by the carelessness and negligence of said defendant or any of his employes. This averment is in terms denied by the reply.

Upon the trial the defendant below introduced evidence tending to show that Glowik was taking hold of and playing with the cable and hook and that the men employed about.the work were hallooing to him to keep away from it when he was injured ; but the boy himself testified that his attention was called, by the man for whom he got the tobacco to the latter’s illustration of the way in which a Russian lights a cigarette and that while so preoccupied the hook caught him.

The jury returned a verdict for the plaintiff below, and after motion for new trial overruled and judgment entered on the verdict, a bill of exceptions exhibiting all the evidence was perfected and petition in error filed.

1. The first in order of the errors assigned is upon the refusal of the defendant’s motion to withdraw from the jury the testimony given by one of plaintiff’s witnesses, George Patterson, upon his recall, upon the ground that the mode of his examination by plaintiff’s counsel was improper. The ruling was made on the statement by plaintiff’s counsel that what was in form a cross-examination of his own witness was so “conducted upon the theory that plaintiff was taken by surprise in what he testified to and failed to testify.”

We find no error here.

2. The second assignment of error is upon the admission in evidence of an opinion offered by plaintiff’s witness, Frederick Fenstewald, who having testified that this new cable acted just like a snake” and whirled from one sid.e of the street to the other, was asked, apparently as an expert in such matters, “What would you say, as you observed that cable and from your knowledge of cables and their working in general as to whether or not the apparatus and contrivance that you saw in operation was dangerous or otherwise ? ” To this, over objection and exceptiton, the witness answered: “Yes, sir, it was dangerous. ’ ’ This we hold was error, upon the authority of Baltimore & O. Ry. v. Schultz, 43 Ohio St., 270, 282 and 283 [1 N. E. 324; 54 Am. Rep. 805].

3. The remaining assignments of error relate to the charge of the court, to which a general exception was reserved sufficient, as we think, under the statute, to raise the questions made. On the measure of damages, the court charged:

“If you find for the plaintiff you will award such damages as will fairly compensate for the injury. You may consider the injuries and nature of them, the pain the boy has suffered, if any, and may suffer, and all the expenses the plaintiff has been put to, you may consider the effect of the injuries upon the boy’s bodily strength. The measure of damages is compensation and compensation only.”

We do not reverse the judgment below for this possible assumption of permanency in regard to G-lowik’s injuries, though it is nearly on all fours with the fatal error pointed out in Weybright v. Fleming, 40 Ohio St. 52. The objectionable language there quoted is of the same kind, but more flagrant. We are not prepared to say here that the jury were misled, though we do not commend the language used.

It is complained further that the court erred in charging the jury that:

“Simply obstructing the public highway used by the general public, without any legal right to do so, would not be sufficient in itself to establish negligence. Although you may consider that fact, if such it was, in measuring the defendant’s duty.”

It is urged that this language implies that the defendant’s use of the otherwise almost disused highway was illegal contrary to the holding, in Higgins v. Grove, 40 Ohio St. 521, that no action can be maintained to recover the penalty provided for by Section 4748 R. S. (Sec. 7472 Gr. C. et seq.) unless the obstruction therein mentioned amounts to the actual hinderance or inconvenience of travelers, or of any person passing along or upon such road or highway.

We are not prepared to say, however, that the defendant’s mode of using this highway habitually did not constitute an illegal obstruction. Whether it was so or not, it was clearly proper for the jury to consider the mode of use on this occasion as one of the circumstances bearing upon the issue of defendant’s negligence, and this in substance is what the court below charged. If the defendant had desired an amplification of the law upon this subject, he should have specially requested the court to instruct the jury more particularly.

It is further complained that the court erred in charging the jury:

“It was the duty also of the defendants to employ reasonably competent men, and reasonably safe appliances for the prosecution of this work.”

There was no issue made by the pleadings in regard to the competency of the men employed as distinguished from their alleged negligence upon this. occasion, and the court should not therefore have imported this element into the case. To do so was clearly error.

The charge is further complained of in that the court permitted the jury to consider the pleadings for the purpose of determining the issues, without cautioning them that the allegations of the pleadings were not to be taken as evidence. Regarding this criticism we hold that if the defendant below desired this direction, he should have specifically requested that it be given.

The remaining objections to the charge relate to the subject of contributory negligence, and which, it is said, was not put in issue by the pleadings, and even if it were, was erroneously defined, as applied to infants, because it qualified the rule as laid down in Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. 466; 3 L. R. A. 385; 15 Am. St. 596], that “ordinary care for them, is that degree of care which children of the same age, of ordinary care and prudence are accustomed to exercise under similar circumstances.”

The charge imported other elements than age into the determination of the question of the plaintiff’s contributory negligence, such as his actual “knowledge, experience and capacity.”

This qualification seems, however, to be justifiable in view of the language employed in Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. 980; 29 L. R. A. 757; 53 Am. St. 640]; Cincinnati Street Ry. v. Wright, 54 Ohio St. 181 [43 N. E. 688; 32 L. R. A. 340]; Citizens Elec. Ry. L. & P. Co. v. Bell, 26 O. C. C. 691 (5 N. S. 321), affirmed, no opinion, Citizens Elec. Ry. L. & P. Co. v. Bell, 70 Ohio St. 482. See also Cincinnati Trac. Co. v. Blackston, 27 O. C. C., (6 N. S. 233) and Willis Creek Coal Co. v. Jones, 30 O. C. C., 588 (11 N. S. 293), affirmed, no opinion, Willis Creek Coal Co. v. Jones, 83 Ohio St. 511.

We are, however, inclined to the opinion that the court erred in charging the jury that there was any burden of proof upon the defendant in this ease in regard to contributory negligence, and in charging that there was any issue of contributory negligence, properly so-called, in the ease. It is true, of course, that in an action for an injury alleged to have been caused by the negligence of the defendant, though it be not ordinarily necessary to allege in the petition that the injury was caused without the fault or negligence of the plaintiff, yet where the other averments necessary to state a cause of action suggest the inference that the plaintiff may have been guilty of contributory negligence, he must plead his freedom from it. Street Ry. v. Nolthenius, 40 Ohio St. 376.

• It is also true that “even though the petition might, if the plaintiff were an adult, b.e construed as disclosing contributory negligence, an averment that the plaintiff was at the time a child of nine years of age, and of immature experience and judgment, is sufficient to rebut the presumption of contributory negligence.” Lake Erie & W. Ry. v. Mackey, supra.

The rule as to- burden of proof is similar, so that in an action for an injury occasioned by negligence, where the circumstances require of plaintiff the exercise of due care to avoid the injury, and the testimony offered in his behalf does not disclose, any want, of such care on his part, the burden is upon the defendant to show such contributory negligence as will defeat a recovery; but if plaintiff’s own.testimony, in support.of his cause of action,, raises a presumption of such contributory negligence, the burden rests upon him to remove that presumption. Robison v. Gary, 28 Ohio St. 241, and Baltimore & O. Ry. v. Whitacre, 35 Ohio St. 627.

Whatever may. be true, therefore, in regard to the fate of a case, where contributory negligence, though not an issue formally tendered by the ■ answer, is nevertheless so clearly disclosed in plaintiff’s petition or in the evidence offered by him in support thereof as to raise a presumption that his own want of care directly contribute to the injury of which he complains, it is certainly true in view of the decisions of the Supreme Court in Cincinnati Trac. Co. v. Forrest, 73 Ohio St. 1 [75 N. E. 818], and Cincinnati Trac. Co. v. Stephens, 75 Ohio St. 171 [79 N. E. 235], that the defendant can neither claim advantage nor be subjected to disadvantage from instructions to the jury upon that issue erroneously imported into the case.

Upon the authority of Cincinnati Trac. Co. v. Forrest, supra, we think it was clearly error for the court, in -the case now before us, to charge that there was any burden whatever upon the defendant in his maintenance of such a supposed defense. For the jury finding that the defense had failed would likely be misled to suppose that the defendant’s negligence with which the plaintiff’s alleged negligence was said to have contributed in- producing the injury, was admitted. The doctrine of our Supreme Court is that contributory negligence on the part of the plaintiff presupposes negligence on the part of the defendant; hence the court below erred in charging that the defense of contributory negligence was made by the pleadings, implying that the defendant had thus conceded his own negligence.

For these errors in the charge and in the admission of the testimony to the effect that the apparatus was dangerous the judgment of the court of common .pleas is reversed and the cause remanded for further proceedings according to law.

Marvin, J., concurs.

Winch, J., not sitting.


text:
    TRIAL
    [Cuyahoga (8th) Circuit Court,
    December 28, 1909.]
    Henry, Marvin and Winch, JJ.
    Standard Knitting Co. v. Frank Van Wie.
    Jury May Amend Verdict upon Direction of Court.
    When a jury has attempted to return a verdict in which they have included improper items of damage they may, upon the direction of the court, amend their verdict.
    Error.

      Kerruish & Kerruish, for plaintiff in error.

      G. A. Groot and G. A. Farquharson, for defendant in error.
   HENRY, J.

The action below was brought to recover damages for alleged wrongful discharge from employment before the expiration of the term thereof as stipulated by written contract. The sole defense was that the discharge was for good cause, to wit, drunkenness and neglect of duty. The verdict and judgment were for the plaintiff below.

The first of the two errors claimed here is that the verdict finally received was not the lawful verdict of the jury. The verdict first attempted to be rendered was for the full amount of wages that could accrue under the contract of employment, after the plaintiff’s discharge. He had, however, admitted upon the trial that a considerable amount had been earned by him in other employment during that period and therefore the court refused to receive the verdict presented by the jury and directed them to prepare another to cure their oversight in this respect, which they did accordingly. Although the counsel were not present during this episode, we think the rights of the defeated party were not prejudiced by this circumstance. The amendment of the verdict by the jury seems to be fully authorized in the premises by Secs. 5198 and 5199 R. S. (Secs. 11456, 11457 G. C.)

The only other error complained of involves the weight of the evidence.

The defendant in error upon Ms examination, admitted that he had done a good deal of drinking, but denied that he had been under the influence of intoxicants, and denied that he had neglected Ms duties. There was a great deal of evidence to the contrary, which, if we had stood in the place of the jury and were considering the matter in the first instance might well have induced a finding contrary to that actually made by them. That is not, however, the criterion which must govern us in weighing the evidence at this time, and we are not prepared to say that the verdict as rendered, is manifestly and clearly against the weight of the evidence.

Judgment affirmed.

Marvin, J., concurs.

Winch, J., not sitting.


text:
    LIBEL AND SLANDER
    [Cuyahoga (8th) Circuit Court,
    December 28, 1908.]
    Winch, Henry and Marvin, JJ.
    Farmers Co-Op. Harvesting Mach. Co. v. Lawrence Pub. Co.
    Corporation can not Recover Damages for Libel When Sole Injury Is In Sale of Stock.
    A corporation can not maintain an action for a libel where the sole damage shown is the hindrance of subscriptions to its capital stock, even though that may result in its being unable to carry out the objects for which it was organized.
    Error.

      F. B. Marvin and J. J. McCormick, for plaintiff in error.

      Cwrr, Stearns & Chamberlain, for defendant in error.
   HENRY, J.

The action below was a libel case wherein the court directed a verdict for the plaintiff in a nominal amount, at the close of the plaintiff’s evidence, and it complains of this ruling as error here.

The alleged libel consisted of an article published in the Ohio Farmer, an agricultural weekly paper of large circulation in this state and elsewhere, cautioning its readers against the plan of operations of the plaintiff in error, a corporation, whose objects are fairly implied in its name, the Farmers Co-operative Harvesting Machine Co. of America.

The petition, after alleging that the plaintiff had acquired plants for the manufacture of agricultural machines together with a stock of the products in question and being about to engage in the sale of said products, sets forth the alleged libel in these words:

“A Word op Warning.
“We are receiving a large number of inquiries from our subscribers regarding the so-called Farmers’ Co-operative Harvesting Machine Company (meaning plaintiff), whose headquarters are at Springfield, Ohio, and who have large numbers of agents going about the country selling stock to farmers. It seems clearly our duty to state that what information we have about this concern or scheme (meaning the method or plan of business of said plaintiff), to our readers. We would further call farmers’ attention to the fact that under modern systems a corporation (meaning plaintiff), can make a great showing on paper when it would not stand a business investigation. No good business man would buy stock in a corporation (meaning the plaintiff), simply on the representation of agents. We know further there is not profit enough in the manufacture and sale of harvesting machines at the present time to any where near justify the expense of selling stock, and the representation regarding future dividends, that we are informed are made by the traveling agents (meaning the plaintiff’s agents),, selling this stock. We have received information to the effect that several prominent farmers, whose names were used in connection with this corporation (meaning plaintiff) at first, have recently withdrawn from it entirely.”

The petition further alleges that this publication was made with the malicious intent of “causing it to be believed and suspected by farmers and people generally, that plaintiff was engaged in a ‘scheme’ to defraud and cheat; that plaintiff had made a false and fraudulent showing on paper of its business condition, with intent to defraud; that plaintiff has caused its agents to make false and fraudulent representations as to its business opportunities with intent to deceive and cheat; that several prominent farmers who had been connected with plaintiff have recently withdrawn from it, because it was engaged in a ‘scheme’ to cheat and defraud and because it had done the other fraudulent and wrongful acts above referred to. ’ ’

The petition concludes by averring that “it has been greatly injured in its good name and reputation and its business has been seriously injured and retarded and the number of subscribers for its stock has been greatly diminished, and that by reason of the premises it has sustained damages in the sum of $100,000.”

Upon the trial the proof of special damages seems to have been confined to evidence that the sale of its shares was so hindered by this publication that the corporation had to abandon its enterprise of securing subscriptions to its capital stock, and of building up a co-operative business in the sale of agricultural supplies to its own stockholders.

The gist of the article complained of is moreover a warning to farmers, not against the quality or kind of farm machinery and supplies which the plaintiff corporation was organized to manufacture and sell, nor against purchasing from or dealing with the corporation in respect, of those objects for which, as declared by its articles of incorporation, it was organized; but is against the purchasing of the stock of the corporation, considered as a business investment.

The reported eases in which a corporation has sued for libel or slander are very few, and the number of those in which the corporate plaintiff has succeeded is negligible.

Davis, J., in Brayton v. Cleveland Special Police Co., 63 Ohio St. 83, 85:

“Although a corporation may sue for a slander upon it in the way of its business or trade, it can not sue for a slander upon one. of its stockholders or officers, if the slander be not in direct relation to the trade or business of the corporation. ’ ’

The Knickerbocker Life Ins. Co. v. Ecclestine, 11 Abbott’s Practice (N. S.), 385, holds likewise, that upon proof of special damages a corporation may sustain an action for libel, but the complaint must set forth special damages if the matter is not libelous, per se.

It appears clear to us that the averments and proof in the present case, show nothing else by way of a libel than is involved in a discouragement of subscriptions to its capital stock upon the ground that the co-operative enterprise was visionary and that investment in the stock was not a good business venture.

Incidentally, of course, the failure of such a corporation to obtain subscriptions to its capital stock must involve the failure of the whole co-operative enterprise, but the case is very different from that of a newspaper criticism of the business methods or products of a manufacturing corporation fully organized, by which the prosecution of the business in which it is engaged and for which it was incorporated is cut off through distrust disseminated amongst present or prospective customers who are not otherwise connected with the company. "We hold that a corporation can not maintain an action for libel where the sole damage shown is the hindrance of subscriptions to its capital stock. The fact that the corporation is thereby disqualified from carrying out the professed objects of its incorporation in the marketing of its products does not alter the case, and that being substantially the state of facts before us, we hold that the court did not err in directing a verdict for only nominal damages.

Judgment affirmed.

Winch, J., concurs.

Marvin, J., not sitting.


text:
    WILLS
    [Cuyahoga (8th) Circuit Court,
    December 14, 1908.]
    Winch, Henry and Marvin, JJ.
    Frank Van Develde et al v. Mary Van Develde et al.
    No Action for Destruction of Will.
    Beneficiaries under a will can not maintain an action for its wrongful destruction during the testator’s lifetime.
    Error.

      J. P. Dawlet and Thompson & Eine, for plaintiffs in error.

      E. C. Schwan, for defendants in error.
   HENRY, J.

The action below was brought to recover damages for the destruction of a will prior to the testator’s death, whereby plaintiffs were deprived of legacies. Demurrer to the petition was sustained and judgment rendered for defendants.

However wrongful such conduct as that here ascribed to the defendants may be, there appears to be no precedent for the remedy invoked. What right of the plaintiffs was invaded? They had no vested interest in the expected legacies during the testator’s lifetime. There was not even an inchoate right created in them by the mere execution and publication of the testator’s will containing provisions in their behalf.

The judgment is affirmed.

Winch and Marvin, JJ., concur.


text:
    RECEIVERS
    [Cuyahoga (8th) Circuit Court,
    May 24, 1909.]
    Henry, Marvin and Winch, JJ.
    McIntosh Hardware Corp. v. Otto I. Leisy, Tr. et al.
    Rent of Property Occupied by a Receiver not a Preferred Claim.
    There is no preference in favor of the landlord of premises upon which a receiver is conducting the business for which he is receiver as against creditors of the receiver who have sold materials to him to be used in continuing the' business under the court’s order.
    Error.

      Thompson & Hine, for plaintiff in error.

      Solders, Thayer & Mansfield and Walter L. Flory, for defendants in error.
   HENRY, J.

The plaintiff in error is a creditor of the Standard Wire & Iron Co.’s receiver for materials furnished during the receivership, in pursuance of the order of the court of common pleas that the receiver operate the business and purchase the necessary supplies therefor.

The defendant in error, Leisy, is the owner of the premises which the receiver has occupied. On the winding up, the receivership fund in the receiver’s hands is insufficient to pay both the claim of the plaintiff in error and also that of the defendant in error for rent due from the receiver. The court' below gave the rent claim priority, upon the theory apparently that the premises upon which to operate the business and keep the property, were a fundamntal necessity of the receiver and that the claim for compensation in rent therefor is of superior merit to the claim for the purchase price of materials furnished the receiver.

We know of no such rule of preference. The cases cited by the defendant in error go only to the point that rent of premises whereon to keep the property or operate the business committed by the court to its receiver, is a proper charge against the fund and takes precedence over the creditors’ claim antedating the receivership. This is upon the theory that the receiver is entitled to be reimbursed out of the fund for his necessary expenses in conserving the same and in obeying the court’s orders in reference to it, but the same is true, also, with regard to materials furnished to the receiver and necessarily procured by him to enable him to obey the court’s order to operate the business.

■ The hazards of such operation ought to make a court extremely cautious, in granting an application to have a purely private business, without public duties, continued in operation by its receiver when financially embarrassed; but where such an order is made upon a clear showing of its necessity for the conservation of the fund, or upon the consent of all parties to the. litigation, those who extend credit to the receiver stand upon an equal basis in regard to the priority of the claims.

In case of deficiency of the fund, through no fault of the receiver, their only remedy is to invoke the possible discretion of the court to have the deficiency assessed as costs against the party who applied for the order or orders which resulted in the deficiency.

The distribution of the fund in this case gave precedence to the claim for rent and is therefore erroneous, and the judgment of the court of common pleas is reversed, and the cause remanded.

Marvin, J., concurs.

Winch, J., not sitting.


text:
    APPEAL — ATTACHMENT AND GARNISHMENT
    [Cuyahoga (8th) Circuit Court,
    May 24, 1909.]
    Henry, Marvin and Winch, JJ.
    George O’Donnell v. Allen A. Armstrong.
    Creditor may Subject Appeal Bond of Garnishee by interpleader.
    One who has garnished a judgment debtor in an action which has been appealed from a justice court, may, upon the bankruptcy of the garnishee, intervene in that case and by filing a cross-petition subject the appeal bond to the payment of his claim.
    Error.

      Klein <& Harris, for plaintiff in error.

      Solders, Thayer & Mansfield, for defendant in error.
   HENRY, J.

Plaintiff in error sued George K. Closs before a justice of the peace- and obtained judgment; whereupon Closs appealed. The defendant in error meanwhile sued the plaintiff in error in the court of common pleas and garnisheed Closs, who subsequently was adjudged a bankrupt. Thereupon the defendant in error intervened in the former case and filed an answer and cross-petition in which he set up his garnishment lien on the fund recoverable in that action.

The plaintiff in error recovered judgment against the bankrupt garnishee, and the cross-petitioner, defendant in error here, was awarded the relief he sought by order providing “that if the defendant Closs, or any one in his behalf pays the judgment rendered in the case, the same shall be paid by him to the clerk of this court.”

Error is assigned upon the phrase “or any one in his behalf.” The manifest object of this phrase is to hold the appeal bond, in view of the garnishee’s bankruptcy. The plaintiff in error insists that the cross-petitioner should have garnisheed the surety on the appeal bond instead of undertaking to intervene in the action below and subject the bond to the payment of his claim.

We fail to see any objection to the course pursued. The defendant by virtue of his garnishment process had acquired an interest in the very chose in action which was the subject matter of the litigation between the original parties to the action below, and he therefore had a right to become a party defendant and set up his claim.

Upon the bankruptcy claim of the garnishee, he was,, upon familiar principles, properly subrogated to the right of the bankrupt garnishee’s creditor in the security of the appeal bond.

Judgment affirmed.

Marvin, J., concurs.

Winch, J., not sitting.


text:
    CRIMINAL LAW — LARCENY
    [Cuyahoga (8th) Circuit Court,
    May 24, 1909.]
    Henry, Marvin and Winch, JJ.
    Antonnio Taddeo and Tony Taddeo v. State.
    1. Prosecutor's Prejudicial Remark before Trial in Hearing of Certain Jurors.
    A prejudicial remark of the prosecuting attorney made before the trial in the presence of certain jurors, furnishes no ground for excusing all the jurors.
    2. Value of Substituted Article not Considered to Reduce Grade of Offense.
    In a larceny case the value of a substituted article left in the place of the one stolen can not be considered to reduce the offense from grant to petit larceny.
    Error.

      J. V. ZoMerelli, for plaintiffs in error.

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

The plaintiffs in error were convicted of grand larceny for having stolen a diamond from Scribner & Lohr’s store. In place of the diamond taken they left a stone of less value.

The first error complained of is the refusal of the court to excuse all the jurors and allow a new panel because some of them had heard a remark of the prosecuting attorney, the day before the commencement of the trial, that it was “necessary and would have a salutary effect to have the court issue a capias at once for the defendants,” notwithstanding that their attorney had stated that one of them was in Conneaut.

If there was any prejudice in this remark of the prosecutor, it afforded no ground for excusing all the jurors, when the claim was not that all, but merely that most of them had heard it, and only two were affirmatively shown to have heard it. One of these disclaimed that he was influenced by the remark and no other juror was particularly inquired of on the subject. There was no error in this ruling.

The second error assigned is upon the failure of the court to take proper action regarding the comment of a bystander upon the claim of one of the defendants that he could not understand a question put to him as a witness in his own behalf in connection with the demand of his attorney for an interpreter. The comment was: “He (the witness) is a liar, he spoke good English to me.” The trial judge said he did not hear it, but that he would take the exception under advisement. No action was taken, except that an interpreter was allowed. It does not affirmatively appear that the jury heard the remark, and we find no prejudicial error in the incident. The prosecutor also insisted that the witness could speak English and objected to the calling of an interpreter; but we find that there is no misconduct in this amounting to reversible error.

The next error assigned is upon the refusal of the court to admit the bill of sale of the diamond left in place of the one taken, as tending to show that the stones were of nearly equal value and hence that the exchange was due to mistake and not to a criminal motive. The evidence was not competent for that purpose. The defendants were, however, permitted to show the facts by oral testimony.

But it is claimed that the court should have charged the jury that if the difference in value of the stones was less than $35 they could not convict the defendant's of grand larceny. This, of course, is not the law. The value of goods taken can not thus be offset to diminish the degree of the crime.

The sole remaining assignment of error relates to admission in evidence of conversations between detectives and a cousin of the defendants below in the latter’s presence. The detective told him he ought to tell the truth about this diamond, that it would be better for him, and it is urged that the subsequent statement from the cousin incriminating one of the defendants should have been excluded as an involuntary confession.

The rule as to confessions applies only to confessions of defendants on trial, not to admissions or statements of third persons in their presence.

Hence, even if the statements and admissions were involuntary, which we do not decide, there was no error in admitting the evidence thereof.

We find no error in the record and! the judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    REFORMATION OF WRITTEN INSTRUMENTS
    [Cuyahoga (8th) Circuit Court,
    May 10, 1909.]
    Henry, Marvin and Winch, JJ.

      Asa Anderson v. Godfrey Fugman et al.
    Evidence must be Clear and Convincing to Reform Contract.
    To entitle plaintiff to the reformation of a written contract the evidence of fraud or mistake must be clear and convincing.
    Appeal.

      J. J. McCormick, for plaintiff.

      Smith, Taft & Arter and C. K. Fauver, for defendants.

      Affirmed no opinion, Anderson v. Fugman, 85 Ohio St. 441.

   HENRY, J.

These two appeals from the same judgment will be consolidated. Plaintiff seeks the reformation of a lease under which he is the tenant. The lease was made before the premises were improved. The improvements were made in accordance with plans agreed upon between lessor and lessee, and are connected with and a part of an improvement of the remainder of défendant’s lot not covered by the lease. At present the leased premises located chiefly in the rear of said lot consist of a large dancing academy with an entrance gallery or corridor, giving means of ingress and agress to and from the street on which the lot fronts. The front of the lot is occupied by a building, which except for the corridor aforesaid, is used for stores and offices. The dispute here centers in the boiler room in one of the rear corners of the basement under this store building. The lease as actually executed excludes this boiler room, whereas the plainiff claims that both parties understood it to be included.

After the execution of the lease and during the erection of the building the lessor installed his heating plant, consisting of a boiler in the room now in dispute, with pipes leading therefrom to both buildings. This mode of construction plaintiff acquiesced in, claiming now, however, that it was simply an experiment which he consented to for the landlord’s convenience, with a view to seeing whether both buildings might not be adequately heated from a common plant. This, however, proved unsatisfactory to him and he now insists upon his right to the exclusive use of this boiler room and such heating plant as may now or hereafter be installed therein of a capacity sufficient for his needs in heating his dancing academy. To this end he seeks a reformation of the lease.

In support of this contention he points out in the building plans, and in the store building, as erected, ample provision of smoke stack, flues, etc., by means of which a separate heating plant could have been and may be installed for the use of the store building alone.

The defendants claim on the other hand, that there was no mistake in leaving the boiler room out of the description of the leased premises, the intention of the parties all the while being that the lessor was to furnish the lessee with heat and that the lessee was to pay the lessor the reasonable cost or value thereof.

The provisions of the lease in regard to the tenant’s payment of rent, etc., seem to us to support the defendants’ contention in this behalf. Those provisions are:

‘ ‘ Said second party is to pay a rental in the sum of twenty-three hundred ($2,300) per year for the first period of ten years and the sum of twenty-seven hundred ($2,700) for the second period of ten years, of which said annual rental for first year has been paid in advance, upon terms and conditions stated in a receipt given therefor, and thereafter said annual rental is to be paid in quarterly installments in advance. In addition thereto, said second party is to pay for such lights, heat and water as he may use in said premises, and is to do all the interior repairing at his own expense. ’ ’

This provision is less consonant with the idea that the plaintiff, as lessee, was to furnish his own heat than that the lessor was to furnish it to him. In order to do so the lessor must necessarily control the heating plant and the room where it is located. At all events the evidence of a contrary contention is not so clear and convincing as the rule in such cases requires in order to authorize a reformation. It is not claimed that the lessee entered into this particular covenant under any mistake of fact. If there was any mistake on his part as to what the language meant, it was a mistake not of fact, but of interpretation of the contract; that is to say, an error of law, against which he can not have relief in equity.

There are certain other errors in the description of the premises which both parties concede. For example, the description of the land covered by the dancing academy fails to correspond by a few inches in some cases with the lines of the building as actually constructed. Moreover, certain rooms on the first and second floors of the store building adjacent to the corridor aforesaid, occupied by the plaintiff with the acquiescence of the defendants, are either not described or misdescribed in the lease, and the rights of plaintiff in the basement under the rear part of the corridor are not clearly defined. In these respects the lease should be reformed, but not as to the boiler room. If the plaintiff is not furnished such heat as he reasonably requires for his dancing academy, he has his plain remedy at law under the lease.

The plaintiff may take a decree to the extent thus indicated, but inasmuch as the defendant appears to have been ready to concede such' reformation of the lease as the court now awards, the plaintiff must pay the costs.

Marvin and Winch, JJ., concur.


text:
    EVIDENCE — NEGLIGENCE
    [Geauga (7th.) Circuit Court,
    February 23, 1909.]
    Laubie, Cook and Henry, JJ.
    Cleveland Electric Ry. v. Augusta L. Powell.
    1. Evidence of Particular Ailment Admissible Under General Averment of Permanent Injuries.
    Evidence that plaintiff had become afflicted with neurasthenia and curvature of the spine as a result of injuries is admissible under an allegation that she “was greatly and permanently injured, in that her head was cut open and she was made sick, sore and lame.”
    2. Averment of Simulation of Injuries Imposes no Burden to Prove Malingering.
    The burden is upon the plaintiff in a personal injury suit to show the reality as well as the cause and nature of the injuries of which she complains, and in a case in which it is claimed that she has simulated injuries it is error for the court to charge that the burden is upon the defendant to prove malingering upon the part of the plaintiff.
    Error.
   HENRY, J.

The action below was for damages for personal injuries resulting from the fail of a trolley pole from a suburban car at the southeast corner of the Public Square in the city of Cleveland on December 18, 1904. Plaintiff below was a pedestrian crossing the street behind the car and was struck by the pole itself, for which she recovered a verdict and judgment.

The first error assigned is upon the admission of evidence that plaintiff had become afflicted with neurasthenia and curvature of the spine as a result of the injury, without allegation in her petition to that effect. The petition’s averments that she “was greatly and permanently injured, in that her head was cut open and she was made sick, sore and lame,” are broad enough to admit this evidence.

The second error assigned is upon the exclusion of the answers to these questions, viz.:

“ Q. I will ask you to state whether there was an inspector of that road at Beech Park? A. Yes, sir. The car was inspected before we took it.
“Q. And at what time was that inspection made ? A. Well, the car got in there, I should judge about 8:10 or 8:05 along there, and was inspected before we took it.”

The witness was the conductor of the car in' question. It appeared to the trial court, and appears to us, that his personal knowledge was not such as to qualify him to give this testimony, especially as it amounts to a conclusion or opinion.

Further assignments of error are made upon various instances of alleged misconduct of counsel for plaintiff below. We .shall not discuss these, further than to say that comments by counsel upon the evidence, or upon anything connected with the ease, in the hearing of the jury during the production of evidence, are wholly out of order unless addressed to the court bona fide on interlocutory questions. But we find no prejudicial error warranting a reversal, in any of . the instances cited.

The charge of the court is complained of, and we find error in this language:

“It is claimed on the part of the defendant that the neurasthenia, if any, with which the plaintiff claims to be suffering, results not from the injuries received at the time of the accident, but from the diseased condition of the female organs. If you find that such neurasthenia is the result of diseases of the female organs, or that it results from any other cause than the accident, it would be your duty to wholly disregard it in estimating damages.
“It is claimed on the part of the defendant that the plaintiff is malingering, or pretending the various ailments with which she claims to be suffering. While the burden is on the plaintiff to prove that her injuries and diseases result from the injury, the burden is on the defendant to prove malingering by a preponderance of the evidence. ’ ’

We remark that the defendant did not claim to account for neurasthenia in the plaintiff, but denied its existence. What it did claim was that she suffered from hysteria, and it sought to account for this from female disease not referable to the injury. Moreover, malingering by the plaintiff was claimed not as an affirmative defense, but as a challenge of the good faith of plaintiff’s testimony and actions in respect to her injuries. The burden was on the plaintiff, and not upon the defendant, to show the reality as well as the cause and nature of the injuries.

The fourteenth written request to charge before argument was improperly refused:

“(14) The Cleveland City Railway Company was only required to transport the cars of the Lake Shore Electric Company to and around the public square and back to Rocky river, unless you find that by mutual agreement between the parties a different point of destination in the city of Cleveland was agreed upon between the parties.”

While, as indicated in the general charge, a presumption may arise from the regular routing of the suburban cars in question, for months before the accident, to' the new terminal beyond the defendant’s tracks, that this was done by consent of the parties within the express contemplation of the original contracts (to one of which both city companies and all the interurban companies were parties), yet such presumption was clearly rebuttable, and it was for the jury to say whether the preponderance of the evidence showed that the crew of the car were at the time of the accident in defendant’s service and the car itself in the defendant’s custody. Unless the jury found an express or implied agreement, supplemental to the original contract, which would support these claims, the defendant company could not be held liable for plaintiff’s injury beyond its own line. The special finding of the fact by the jury, implying that the car was turning westward on the defendant’s tracks, instead of eastward on the track of the other city company, though supported by some evidence, is reconcilable with all the evidence only on the theory that the car started to turn westward by oversight of the motorman in failing to throw the switch.

We do not reverse the judgment for excessive damages, although we are impressed with the extreme liberality of the jury whose verdict of $15,000 considerably exceeds our own estimate of plaintiff’s damages. But for the errors already pointed out, which are all we find in the record the judgment is reversed and the cause remanded.

Laubie and Cook, JJ., concur.


author: JONES, J.

text:
    CHARGE TO JURY — EVIDENCE—NEGLIGENCE
    ([Hamilton (1st) Court of Appeals,
    February, 1913.]
    Smith, Swing and Jones, JJ.

      Cincinnati Trac. Co. v. Jennie Riskey.
    1. Charge to Jury Should State Law by Spoken Word.
    In charging a Jury the law should be stated by the spoken word of the Judge himself, and not by reference to any paper which may have been filed in the case.
    2. Physician Treating Plaintiff may Testify that Accident Caused Injuries Described.
    It is competent for the physician who treated the plaintiff for the injuries complained of and who saw the marks on her body to testify that the accident of which she' told him and the marks of which he had seen on her person caused the condition which he had described.
    Error.

      Paxton, Warrington & Seasongood, for plaintiff in error.

      Hoffman, Bode & LeBlond, for defendant in error.

      Affirmed no opinion, Cincinnati Trac. Co. v. Riskey, 91 Ohio St. 413.

   JONES, J.

. The issue of fact in the trial of this ease was a simple one. If as plaintiff claimed in her petition and evidence the car had stopped for the purpose of allowing her and other persons to board it and was started by defendant’s employes while she was in the act of stepping upon the platform, defendant is liable If plaintiff tried to board the car while it was in motion and was injured as a result of such attempt, defendant is not liable.

This issue makes unnecessary any discussion by the court, in its charge, of the question as to when a person becomes a passenger.

The court undertook to instruct the jury upon this question and, we have no doubt, erred in the manner pointed out in the brief of plaintiff in error.

This portion of the charge was:

“I believe the law holds that persons are regarded as passengers of a company when they undertake to enter a car of the company as alleged in this petition. If they are on board the vehicle of transportation they are said to be passengers, whether or not they have up to that time paid their fare, but enter with the intention of paying their fare, or, if they are in the act of entering upon the vehicle of the company, they then have all the rights of passengers to this extent, that the carrying company is charged with the highest degree of care with reference to the transportation and care of that passenger. ’ ’

In charging the jury a court should not undertake to do so by reference to the allegations of any paper. The law should be stated by the spoken word of the judge himself. It was particularly erroneous to refer the jury to the petition in this case as it states plaintiff “boarded the car” and then, by subsequent allegations, places her foot on the step in the act of stepping to the platform. The allegations of the petition are conflicting.

On page 95 of bill of exceptions will be found a correct statement of the law as follows -.

“If you find from the evidence that the plaintiff undertook to get on the car after it had started, then she assumed the risk of such action and could not recover for any injury resulting thereby; if on the other hand, that while the plaintiff, in the exercise of ordinary care was in the act of entering the car, and after she had placed her foot upon the car while stopped, and that the car was suddenly started, and that she was injured because thereof, then she would be entitled to recover for her injuries. ’ ’

This portion of the charge is clear and unambiguous, correctly states the law upon the pleadings and evidence in this case and in our opinion cures the error pointed out above. In the reply brief it is claimed that in this portion of the charge the court omitted to say that before plaintiff can recover it (the jury) must also find that “she was not given a reasonable opportunity to enter the car before it started.” We think there was nothing in the evidence or claim of defendant to make this necessary.

The following portion of the charge is objected to:

‘ ‘ This compensation would include the pain she has already suffered, as well as the pain she may continue to suffer if her injuries are of such nature as to cause her pain in the future.”

It is true that this language is not that approved by our Supreme Court in Pennsylvania Co. v. Files, 65 Ohio St. 403 [62 N. E. 1047], The language there used and indorsed by the syllabus is — “Where prospective damages from an injury are claimed, they should be limited by the court in its charge to such as may be reasonably certain to result from the injury.”

The use of the words “may suffer” has been held to be erroneous, but we think the words which follow made it incumbent upon, plaintiff below to, at least, show future pain or suffering “reasonably certain” if indeed they do not require a higher degree of proof.

The court instructed the jury that it must find her injuries “are of such nature as to cause her pain in the future” before anything could be included for future pain. We are of the opinion that while this is not a model charge on the point in question it substantially conforms to the rule and can not be said to be prejudicial to the party complaining.

The special charge which was refused by the trial court was not a full statement of the law upon the question involved. It places emphasis upon the jerking of the car and entirely ignores the complaint that the car was started while plaintiff was trying to board it. Under the evidence the charge that “a sudden jerk is no evidence of negligence” would be error, the testimony showing, as it does in this case, that the car had stopped for plaintiff and others and that there was no lack of diligence or alacrity in boarding it.

We find no prejudicial error in the exclusion or admission of evidence.

The evidence of the physician who treated her before and after the accident as to the cause of the “floating kidney” was admissible. Had he been called in purely as an expert who had no previous knowledge of the patient it would be otherwise. But he was called to treat the patient for these injuries, saw-the marks on her body and treated her for a long time. It was competent for him to say that the accident which she told him about and of which he saw the marks on her body caused the condition described by him. Especially is this so when no attempt is made to prove nor is there any intimation that she had suffered any other violence.

We find no error in the record prejudicial to plaintiff in error and are of the opinion that the judgment should be affirmed.

Smith and Swing, JJ., concur.


text:
    ERR OR — TRIAL
    [Geauga (7th) Circuit Court,
    1909.]
    Lauhie, Coot and Henry, JJ.
    Judge Henry of Eighth Circuit Sitting in Place of Judge Metcalfe.
    Cleveland City Ry. v. Augusta L. Powell.
    General Verdict for Plaintiff not Vitiated by Error in Charge as to One Branch of Case.
    When a jury has returned a general verdict in favor of the plaintiff and there was an erroneous charge as to one branch of her claim, but no error as to another branch of the case which of itself would entitle her to recover the judgment which she obtained, the judgment will not be disturbed.
    Error.
   HENRY, J.

This is a proceeding in error prosecuted to reverse a $10,000 judgment recovered for personal injuries sustained by the defendant in error on account of the falling upon her of a trolley pole from an electric car in the city of Cleveland. She was a pedestrian upon the street. We do not care to discuss all the assignments of error that were made in this ease. We have examined them all and we find only one which we deem worthy of discussion in the time that is at our disposal now. We find nowhere any prejudicial error in the assignments that we may thus pass over.

It is conceded, however, that there was error in the charge as to one branch of the claim of the plaintiff below; but it is contended on her behalf that there was another branch of the case which of itself would entitle her to recover the judgment which she obtained, and with respect to which no error intervened.

A number of authorities are cited to us to establish the proposition that where a jury finds a general verdict upon the issues in a ease in favor of either party it is presumed that the verdict is founded upon a finding in favor of the prevailing party upon all the issues; and if there were, for example, two defenses interposed in an action and with respect to one of those defenses the court erroneously charged the jury, and with respect to the other no error intervened, and a general verdict upon all the issues was returned in favor of the defendant, the error was not available to the defeated party, because the defense with respect to which there was no error will be deemed to have been one at least of the defenses upon which the verdict of the jury was founded. It is, however, said that the cases cited to this point, among which are Sites v. Haverstock, 23 Ohio St. 626; Union Central Life Ins. Co. v. Sutphin, 35 Ohio St. 360; Tood v. Wick, 36 Ohio St. 370; Beecher v. Dunlap, 52 Ohio St. 64 [38 N. E. 795], and McAllister v. Hertzell, 60 Ohio St. 69 [53 N. E. 715], are all cases where the verdict was in favor of the defendant; and it is suggested that the rule can not apply in like manner when the verdict is in favor of the plaintiff upon a cause of action predicated indifferently on any or all of two or more grounds, and that for that reason it is not applicable to this case.

One case in the Supreme Court, Pennsylvania Co. v. Miller & Co., 35 Ohio St. 541 [35 Am. Rep. 620], seems to give some countenance to that distinction, if we give it full credit at this time. The form of the verdict for the plaintiff is not recited in the report of that case, and hence it does not clearly appear that the rule there laid down applies to this precise point. But, in any event, a majority of the court are unable to reconcile that decision, in its attempted application to this case, with the other decisions of the court of last resort in this state which I have already cited. In view of a decision by the Supreme Court in the ease of Butler v. Kneeland, 23 Ohio St. 196, which, though of earlier date, is seemingly inconsistent with Pennsylvania Co. v. Miller & Co. supra, and in view also of this long line of authorities in some of which in the syllabus, the rule is stated generally, and not limited to the case of a verdict for the defendant, a majority of the court are constrained to hold that the distinction urged upon us by the defendant in error is well founded and that the admitted error in the charge on the question of the degree of proof necessary to defeat a prima facie case made by the plaintiff is rendered immaterial by the general verdict of the jury, upon all the issues in the case, in favor of the plaintiff. The verdict here is sustainable as including a finding of negligent failure to hold the trolley line; and that suffices, since we find no error in that aspect of the matter. Although we come to this conclusion with some hesitation and with dissent on the part of our brother Laubie as to the point I have discussed we nevertheless think the judgment below ought to be affirmed and it is affirmed.

Cook, J., concurs.

Laubie, J., dissents.


text:
    PAYMENTS
    [Cuyahoga (8th) Circuit Court,
    December 7, 1908.]
    Winch, Henry and Marvin, JJ.
    Wm. L. Rice, Tr. v. McIntyre-Skinner Trunk Co.
    Creditor Bound by His Bookkeeper's Application of Payments.
    When a creditor through his bookkeeper has made a certain application ofi payments received from his debtor, he will not be ■permitted later to make an application different from that indicated upon his books.
    Appeal.

      Blandin, Bice <& Ginn, for plaintiff.

      Weed, Miller <& Nason, Paul Howland and Klein & Harris, contra.
   HENRY, J.

This is an appeal of an action to enforce the primary and secondary liability of stockholders for rent and reimbursement of taxes due from the defendant corporation. The tenancy was at first under a written lease and later by holding over, and the rent was payable monthly but fell into arrears during the original term and was never fully caught up by the several sums afterwards paid. The question now is one of the application of payments, as to which no direction was given by the tenant when he made them. If the sums paid by the tenant during the period of holding over are applied not on the rent then accruing but on its old arrears, the amendment of the Constitution, which meanwhile became effective, would prevent the right of recourse to the stockholders liability for the remainder from arising. The plaintiff herein kept an account by his bookkeeper, wherein the debits for installments of rent and disbursements are balanced in regular order of time by the payments made so far as they go. This application was not communicated to the tenant, and after the latter’s failure, the plaintiff sought by his petition herein to make a different application suited to the relief which he asks. His right to make any application he pleased is undoubted in the absence of a direction expressed by the tenant or implied by the circumstances. But the circumstances here, while not making a case of partial payments on an open running account, is nevertheless so closely analogous thereto as to imply in law an intention to apply them precisely as the bookkeeper did apply them. The result is that no resort can be had to the secondary liability of the stockholders. As to the primary liability of two subscribers to the capital stock who sought to withdraw from all connection with the company before any part of the liability accrued, it is enough to say that the subscriptions were never lawfully or effectually canceled, and a decree may therefore be taken for the amount thereof.

Winch and Marvin, JJ., concur.


text:
    COMPENSATION AND SALARIES — PHYSICIANS AND SURGEONS
    [Cuyahoga (8th) Circuit Court,
    March 28, 1908.]
    Winch, Henry and Marvin, JJ.
    Cuyahoga Co. (Com.) v. A. P. Hammond.
    Physician Has no Right to Compensation for Performing Autopsy.
    Section 1305 R. S. (Sec. 2495 G. C.), creates no liability on the part of the county in favor of a physician or surgeon who has made a post mortem examination at the instance of the coroner if the county commissioners refuse to allow him compensation.
    Error.

      C. W. Stage, for plaintiff in error.

      E. P. Eirich and William Howell, for defendant in error.
   HENRY, J.

The defendant in error presented his bill to the county commissioners of Cuyahoga eounty, duly approved by the coroner of this eounty, for medical services rendered in performing an autopsy ordered by that official. The claim was based upon See. 1305 R. S. (See. 2495 GL C.), but the commissioners rejected it; thereupon Dr. Hammond appealed to the common pleas court, under favor of Sec. 896 R. S. (Sec. 2461 G. C.), whereupon the commissioners moved for dismissal of the appeal for want of jurisdiction. This motion was refused, and exception reserved, whereupon judgment on the merits was rendered in favor of Dr. Hammond for the sum of $15.

In this proceeding in error it is urged that the court of common pleas erred in refusing to dismiss the appeal. Section 1305 (2495) reads as follows:

“When a physician or surgeon makes a post-mortem examination at the instance of the coroner or other official he shall be allowed such compensation for his services as the county commissioners of the proper county may direct.”

The language of this section seems to be perfectly analogous to the phraseology of the statutes which were construed in Geauga Co. (Comrs.) v. Ranney, 13 Ohio St. 388, and Long v. Miami Co. (Comrs.) 75 Ohio St. 539, where it was held in both instances that an attorney has no right of appeal from the decision of the county commissioners for allowing a sum alleged to be inadequate, in payment for services in defending an indigent prisoner, pursuant to assignment in that behalf by the common pleas court.

Comparison of these cases with Shepard v. Darke Co. (Comrs.), 8 Ohio St. 354, and Elizabeth Tp. (Tr.) v. White, 48 Ohio St. 577 [29 N. E. 47], discloses the true test to be: Does the statute of itself create the liability which is asserted, or does the statute merely authorize the county commissioners to create the liability 1 In the former case the right of appeal exists from the decision of the county commissioners refusing to recognize any liability; in the latter instance no such right of appeal is allowable.

Section 1305 (2495) seems clearly to provide that the legal demand or liability for compensation to a physician who performs a post mortem examination at the instance of a county officer arises only when the county commissioners have allowed such demand. If they refuse to allow anything, no liability exists. The judgment of the court of common pleas is therefore reversed for error in refusing to dismiss the appeal for want of jurisdiction. And proceeding to render here the judgment which the court below should have rendered, the appeal from the decision of the board of county commissioners is dismissed.

Winch and Marvin, JJ., concur.


author: JONES (O. B.), J.

text:
    BILLS OF EXCEPTIONS — CONTRACTS—NEW TRIAL
    [Hamilton (1st) Court of Appeals,
    July 12, 1915.]
    Jones, Jones and Gorman, JJ.
    State ex rel Ayres v. James A. Green, et al.
    1. Motion for New Trial Filed Three Day» from Entry of Judgment on Journal.
    A motion for a new trial is in time if filed within three days from the entry on the journal of the judgment of the court. Oineinnati v. Kilgour, 33 O. C. C. 415 (13 N. S. 415), modified.

      2. Bill of Exceptions Relates Back to Real Date of Filing as Corrected by Court.
    Under the power given to courts to correct mistakes in furtherance of justice or to supply omissions in hills of exceptions, a trial court has authority to correct a mistake in the number which has been given a bill of exceptions and to make a notation of the real date of the filing thereof, and when such a correction is made it relates back to the real date of the filing.
    3. Contractor Writing Proposition on Proposal Sheet not in Printed Form, Held Defect Waivable.
    The fact that a bidder for the construction of a public building wrote one proposition on the proposal sheet, which he did not find in the printed form, is a defect which the building commission has power to waive, and when its waiver has the effect of saving money for the people it will not be condemned by the courts.
    4. Separate Trades Placed on Same Footing as Entire Job Bidders.
    The purpose of Secs. 2363 and 2364 G. 0. is to extend the opportunities for competition by giving separate trades an opportunity to bid separately for their separate branches and receive the same consideration as those who bid for the entire work, and these sections permit a bidder for a part of the work to make his bid cover more than one kind of work or materials, even to the extent of bidding for all branches of the work except one.
    Error.

      Matthews & Klein and. C. G. Williams, for plaintiff in error.

      John V. Campbell and Chas. A. Groom, Pros. Attys. and Moulinier, Bettman & Hunt, for defendants in error.
   JONES (O. B.), J.

A motion has been made to strike the bill of exceptions from the files. The reasons urged are:

1. That the motion of plaintiff below for a new trial was not filed within three days after the decision was rendered (Sec. 11578 G. C., although it was filed within three days from the date of the journal entry of judgment for defendant and dismissing the petition.

2. That the bill of exceptions was not filed in this case within the time fixed by See. 11564 G. C., — that is, not later than forty days after the overruling of the motion for a new trial.

It appears from the bill of exceptions that the court rendered a decision in favor of the defendants on their motion to dismiss the petition, on April 24, 1915. No record, however, of any such decision is found on the appearance docket or upon the journal of the court. The appearance docket and the journal do show, however, and so does the bill of exceptions, that judgment was entered for defendants dismissing the petition on May 6, 1915, and that a motion for new trial was filed on the same day. On May 13,1915, an order was made by the court overruling this motion for a new trial, to which exception was then taken by the plaintiff. On June 14, 1915, a motion was filed by plaintiff under leave of court duly given on that date to compel the attachment of original exhibits to the bill of exceptions; and an order was on that day made by the court granting said motion and compelling defendants to produce the original exhibits, offered in evidence and made part of the record in the trial of this ease, for attachment to the bill of exceptions and permitting the substitution of copies thereof if desired.

A bill of exceptions was filed in the court of common pleas setting out the evidence and exhibits offered in the case below, on June 14, 1915. This bill of exceptions was filed under the proper caption of the cause below, but, through the inadvertence of the official stenographer, instead of bearing the correct number of the case below, to wit, No. 158809 it bore the number 158782 which was the number of a case brought by Howard Ayres as a taxpayer against the said defendants that were in case No. 158809, which case had been discontinued because of the fact that said taxpayer before filing his petition failed to make application to the prosecuting attorney to bring such a suit as provided by See. 2922 G-. C. The filing of this bill of exceptions on June 14, 1915, was therefore not noted upon the docket of case No. 158809, but was probably noted upon the docket under the ■case number which it then bore.

On June 25, 1915, the error being discovered, a motion was made to amend this bill of exceptions by changing its number from 158782 to 158809, and for an order showing the filing of the bill of exceptions under No. 158809 on June 14, 1915. An order was made by the trial court granting that motion so far as to change the number on said bill of exceptions but refusing it so far as it asked for an order showing the filing of a bill of exceptions under No. 158809 on said June 14, 1915. Without any additional filing than as above set out, the bill of exceptions, with the objections that had been filed thereto, was thereupon taken up by tbe trial judge, aud was corrected and allowed by him on June 29, 1915.

The defendants in error contend that the motion for new trial in order to be effective should have been filed within three days after April 24, 1915, the day on which the trial judge handed down his decision in the case, and rely upon the case of Cincinnati v. Kilgour, 33 O. C. C. 415 (13 N. S. 415), for their construction of Sec. 11578 G. C.

It is true this case holds that the time the ‘ ‘ decision is rendered” under the terms of that section means the announcement of the opinion of the court, whether an oral or a written opinion. The difficulty, however, of such a construction as that, unlike the verdict of a jury, there is no provision made by statute for making a record of such decision by the court either by the filing of a written opinion as one of the papers in the case or by the noting on the docket of an oral announcement of its decision by the court. And, as already stated in this case there is nothing in the record to show that a decision was made prior to the entering of the judgment except the fact so stated in the bill of exceptions. The case relied upon by defendants in error is in conflict with the decisions of the Supreme Court in Buckeye Pipe Line Co. v. Fee, 62 Ohio St. 543, at 555 [57 N. E. 446; 78 Am. St. 743], and Eldridge v. Barrere, 74 Ohio St. 389, at 395 [78 N. E. 516], where it is held that a court of record can only speak by its journal, and that the judgments, orders and decrees of a court of record do not rest in parol, but become effective only when entered on the journal of the court. It must be held, therefore, that the motion for new trial, in this ease was filed within time, and the time fixed for filing the bill of exceptions would date from the overruling of this motion.

The bill of exceptions was properly filed with the clerk on June 14, 1915, but, because of the error in its number, was not noted upon the appearance docket of the case in which it was taken, and instead was noted upon the appearance docket in the discontinued case. The motion, however, which was made for the production of exhibits and their attachment to the bill of exceptions was noted on the docket of this case, and was so made in connection with this bill of exceptions as to advise all parties interested in the ease that it had been filed. Under the authority of King v. Penn, 43 Ohio St. 57, 60 [1 N. E. 84], and Burchard v. State, 83 Ohio St. 1, 10 [93 N. E. 199], this bill of exceptions must be deemed as having been filed in the proper case. Under the power given to the court for the correction of mistakes in furtherance of justice, Sec. 11363 G. C., and to correct omission in bills of exceptions, Sec. 11572-a G. C., the court below had authority to correct the mistake in the number of this bill of exceptions, and also to note the real date of its filing thereon. Hazelwood v. Parker, 2 Dis. 429; Cincinnati Trac. Co. v. Ruthman, 85 Ohio St. 62 [96 N. E. 1019]; Pace v. Volk, 85 Ohio St. 413 [98 N. E. 111].

The number was duly corrected, and this correction related back to the filing of the bill of exceptions and rendered unnecessary a new order of notation of such filing, although the court should have granted the motion in that respect, and the clerk should have noted the filing upon the appearance docket of the corrected number. The parties, however, and the court as well, treated the bill of exceptions as though it had been filed under the correct number in the live case in which it was taken, and it was duly signed and allowed by the court within the time fixed by statute, and properly became a part of the record.

The motion to strike the bill of exceptions from the files must therefore be overruled.

By this proceeding in error it is sought to reverse the judgment of the common pleas court refusing to enjoin contracts for the mechanical and electrical equipment of the new court house, as awarded by the building commission to the Standard Engineering Co. and the Standard Plunger Elevator Co.

Under elaborate specifications prepared by direction of the building commission bids were taken not only for the whole work but for the various branches of the work such as boilers, steam engines, electric generators, heating and ventilating systems, elevator equipments, etc. Under the provisions of Secs. 2362, 2363 and 2364 G. C., forms were prepared permitting lump bids for the entire work and materials, and also separate and distinct proposals for materials and labor for each separate and distinct trade or kind of mechanical labor, embodying twenty-one distinct branches or items. In addition a number of alternatives were provided under many of these items, making some sixty-four possible alternatives. Many bids were received from many different bidders, both for the entire work and separate bids for the different branches of work, different parties bidding as they saw fit under the provision contained in the following paragraph of the bid form:

“Bidders are at liberty to submit proposals for various branches of the work, or for the entire work covered by the drawings and specifications as a whole, as provided for in the proposal sheets.”

On full consideration of all the bids received for such work, on recommendation of the architects and engineers certain alternatives were adopted by the building commission, and certain fixtures and alternatives were omitted by them in order to reduce the amount to be expended upon the mechanical equipment so that the total cost of the building structure, jail and the mechanical equipment should not exceed the amount of the bond issue for the erection of the building; and upon a comparison of the bids, using the alternatives decided upon, it was ascertained that the Standard Engineering Company’s proposal or bid for the mechanical equipment exclusive of elevators, amounting to $203,350, and the Standard Plunger Elevator Company’s proposal for elevators, amounting to $103,855, were the lowest bids, and were together lower in amount than the total of the bids for the same work submitted for each branch of the work by/ separate bidders; and the contracts were therefore awarded to said bidders on their said proposals.

Plaintiff below contended that the awards so made were not to the lowest bidders. A careful consideration of the record, however, shows that the bids of said companies so accepted were the lowest bids for the work.

The power of the building commission to receive bids in the alternative, which question is raised by the plaintiff in this case, was sustained in the consideration of the contract for the building of this court house which was before this court in State v. Green, 39 O. C. C. 550 (22 N. S. 1).

This leaves for consideration, therefore, the question as to whether the bid under which the award was made to the Standard Engineering Company was in accordance with the advertisement and specifications, and was authorized by law.

The proposal sheets as prepared for bidding contained, in paragraph known as “Main Bid A,” a form for an entire bid for the whole work. In this form the Standard Engineering Co. made a bid of $352,800, separating it into $265,500 for material, and $87,300 for labor, and upon the same, page they inserted with a pen the following: “Alternative Bid A-l, same as Main Bid A, omitting elevator equipment, $232,800.00.” This form was also followed by separate form for each branch of the work. As before stated, there were some twenty different branches, with alternatives under many of these branches. The award was made to the Standard Engineering Co. under its Alternative Bid A-l. Plaintiff contends that this is not a valid bid and could not be considered by the commission.

Plaintiff claims that this bid is not upon the proposal form prescribed by the commission and is not an alternative bid called for by the advertisements and specifications. It is true that no such alternative was printed upon the form used, but in effect it amounts to the same thing as though each of the twenty printed alternatives for the twenty branches had been bid upon, omitting to bid only upon the elevator equipment, with the provision that the bidder would insist upon an award of all or none of these twenty branches. In other words, instead of detailing twenty bids for the twenty separate branches bid upon, with the provision that all or none should be taken, the bidder simplified the matter by his written alternative bid A-l, giving the aggregate for the twenty separate branches which he desired.

The legality of a bid for all or one of a number of branches is upheld in the case of Yaryan v. Toledo, 28 O. C. C. 259 (8 N. S. 1), affirmed, no opinion, Yaryan v. Toledo, 76 Ohio St. 584. The fact that this proposition was written upon the bid form by the bidder, instead of being provided for in the printed form itself, constitutes a defect which the commission had power to waive, in the form of the bid, and where its waiver operates to effect a saving of money to the people they represent, such waiver should not be criticized by a disinterested tax payer or condemned by the court. The power to waive defects is sustamed by tbe case of State v. Board of Education, 42 Ohio St. 374, and Yaryan v. Toledo, supra.

It is also contended that such bid is not a competitive bid, since none of the other bidders were called upon to make such a bid or knew that such a bid would be considered. As stated above, all bidders had the privilege under the form used, without question, to submit bids as to the twenty branches, and all separate bids given for these twenty branches were in direct competition with this bid of the successful company shown in its Alternative Bid A-l, and not only were the lowest combination of these bids upon these separate branches in this competition but when taken in connection with the lowest separate bid for the remaining branch, to wit, elevator equipment, they were also in direct competition with all lump bids under Main Bid A.

Such a consideration of Sections 2363 and 2364, General Code, is given by the Supreme Court in State v. Marion Co. (Comrs.) 39 Ohio St. 188; State v. Hanna, 13 Dec. 321, 324.

The purpose of Secs. 2363 and 2364 G. C. is undoubtedly to extend opportunities for competition to such an extent that separate trades bidding separately for their respective branches can have full consideration in connection with those bidders who are able to make proposals for the entire job; and these sections undoubtedly permit such separate bidders to bid for more than one kind of work or materials to the extent, as in this case, of bidding for all branches except one. And such bids, all of them, come in direct competition with each other.

Further objection is made that this bid does not state separately the amount bid for work and the amount bid for material, as required by Sec. 2362 G. C. It must be noted that the language of Sec. 2362 leaves this separation of bids for furnishing material and doing work to the sound discretion of the commission, and is not stated in the mandatory language employed in Sec. 4329 G. C., which leaves no discretion. But, outside of the language of the statute, such separation of labor and materials must be made with reference to its practicability in the particular ease. Labor enters into all materials. The finished product of one trade becomes the raw material of another. The ore of the miner is to him material; the pig-iron is the finished product of the furnace; the bar iron of the rolling-mill; and so on, up the line until the highest form of machinery is reached. A consideration of the items bid upon in the contract before the court shows that there has been no abuse of discretion by this building commission in refusing to consider Alternative Bid A-l because of the fact that it contains no separation of labor and material, —which, if it were made must under the circumstances of the case be purely arbitrary and inexact; and as separated bids made in competition failed to show that any lower or better price could have been obtained by considering labor and material separate, no injury has resulted to the tax-payer. This matter of the separation of labor and material has been frequently before the courts and has been similarly considered in other eases. Attention is called to State v. Board of Ed. 7 Circ. Dec. 338 (14 R. 15, 23); Fergus v. Columbus, 8 Dec. 290 (6 N. P., 82).

Another objection is that the bid as made by the Standard Engineering Co. shows marks of erasure in its figures. The figures upon the bid, however, are perfectly clear and intelligible. No claim is made that any erasure or change was made after the bid was received by the commission or that there is anything improper in regard to the erasure. It is claimed that this erasure, and the fact that Alternative Bid A-l was written in with a pen, constitute a violation of the instructions contained at page 13 of the specifications in the general conditions which provide that the bids shall be “without interlineation, alteration or erasure.” These defects are such as might have been considered by the commission in determining whether or not the bid should be received, and, as stated above, are such as the commission had power to waive. They do not appear to have prejudiced the rights of other bidders in any way, and it appears that it was not only the right but the duty of the commission to have considered and accepted this bid notwithstanding these defects.

A careful examination of the entire record leads the court to the opinion that the contracts as made are in strict accordance with law, and the judgment below is therefore affirmed.

Jones (E. H.) and Gorman, JJ., concur.