author: Grant, J.

text:
    RIGHT OF APPEAL FROM THE INDUSTRIAL COMMISSION.
    Court of Appeals for Cuyahoga County.
    Sam Police v. The Industrial Commission of Ohio.

    Decided, March 22, 1915.

      Industrial Commission — Injured Employee, Dissatisfied with the Award Made to Him by the Commission, Has a Right of Appeal, When— Nature of an Appeal Where from an Administrative Board to a Judicial Tribunal.

    An appeal lies from a decision hy the Industrial Commission, where the award which has been made for a permanent injury of a serious character is so small as to indicate that it was intended as. a mere gratuity to one not injured in the course of his employment and therefore not entitled to anything.

      G. E. Romano and. C. W. Roland. for plaintiff in error.

      Cyrus Looker, contra.

       Reversing Police v. Industrial Commission, 15 N.P.(N.S.), 577.

   Grant, J.

By the petition in this proceeding we are asked to reverse the judgment of the court of common pleas.

The error assigned is that that court refused to entertain the appeal of the plaintiff from the final action of the defendant, the Industrial Commission of Ohio, in this ease, but dismissed the same as for want of jurisdiction of the subject thereof.

In his petition in that court the plaintiff alleged — as the fact is — -that the defendant is the successor in law of the former State Liability Board of Awards of Ohio, charged with the duties of the latter, to full effect, as provided by statute; that at the time when the plaintiff came to his injuries alleged, the Union Eolling Mill Company, his employer, was a contributor to the fund controlled by and subject to the award o£ the defendant, in the discharge of the duties devolved by law upon the latter. That in the course of such employment and arising therefrom, while in that service, the plaintiff received certain bodily hurts in the form of a double hernia, to his great and permanent injury. That the plaintiff thereupon elected to pursue the remedy for his wrong in the mode provided by the statute creating the defendant'and prescribing its duties and jurisdiction, and made his application to that end, in due form and as provided by the law in question. That the defendant took jurisdiction in the matter and upon a hearing had, found and awarded to the plaintiff in the sum of ten dollars and fifty cents and no more, in full satisfaction of his right to compensation at its hands for his injuries had and received. That the award was in sum so grossly disproportionate to the just claim to which the plaintiff was entitled as — the circumstances considered — to amount to a total denial of his right to participate in the fund to which his employer was a contributor and to administer which in accordance with the facts the defendant was charged, as an official duty, and that — the circumstances still considered — the award, in that amount, must be regarded as having been made either under some mistake or was moved by passion or prejudice; in any event, that it was contrary to the evidence and the law, and that the application was heard without the plaintiff being notified and out of his presence, so that he had no day in court or due process of law. The prayer of the petition was for an award in satisfaction of the injuries sustained by the plaintiff.

The defendant board answered, the substantive part of its defense being that it considered the plaintiff’s claim, as it was in duty bound to do, and allowed to him only the sum named in the petition. The answer alleged that under the law this action of the board was final and conclusive as to the plaintiff’s right to participate in the fund to which his employer had contributed and that he was, under the law, without further remedy.

A trial was had to the court without a jury, at which the plaintiff gave testimony tending to prove the truth of the material allegations of his petition, which were not conclusions only, and that his injuries, from whatever cause arising, were .serious and permanent. He also offered evidence to prove certain allegations of conclusion in his petition, but this was rejected.

At. this point the court below, of its own motion, raised the question of want of jurisdiction. After argument had the petition was dismissed on that sole ground.

A motion for a new trial was made and denied, and a judgment in favor of the defendant for costs was thereupon entered.

This action of the court below is assigned as error.

The single question to be determined here is that of jurisdiction. Did the court of common pleas have it ?

Within the landmarks of the law being administered, it is the part of a good judge to enlarge his jurisdiction. So anciently said the maxim, which, we take it, means that the law is to be declared in the spirit of its creation, so that the declaration does no violence to its manifest expression in words. Applied to the statute which the defendant board is required to administer in its integrity, the principle is that the purpose of the law is to be made good and effectual. That purpose is in no way obscure or past finding out. And where the purpose is not observed by those entrusted with that service, or is plainly disregarded by employing its letter to defeat its end, the correlative duty of the courts is conceived to be to exert whatever power may reside in them to correct the evil and advance the appropriate remedy.

We are inclined to think that much of the discussion as to whether this ease in its progress from the commission to the common pleas court was an appeal in strictness of words or not, has been too technical and grudging in scope to promote the ends of the law. The word appeal has different meanings in different jurisdictions, and varies widely in its application to various sets of circumstances. Of course, the appeal here was not an appeal in the sense that it brought the ease up from an inferior to a superior court or judicial body; the defendant’s functions are administrative. Constitutionally, they can not be assimilated to those of a court. This point has been settled, specifically, in State, ex rel Yaple, v. Creamer, 85 O. S., 40, where the predecessor of the present law in question was under review.

What really is meant by the word appeal, as applied to the right of the plaintiff to come into the court below, is a mode of removing his cause from an administrative to a judicial tribunal ■ — he having, as he says, been denied his legal right by the action or non-action of the former. In a popular and perhaps inaccurate sense of the term, this method of passing his grievance on to a court from a board may be called an appeal, and in this sense we think the word is used when the statute authorizes the removal. Considering the just and beneficent end sought by the entire enactment, it should not be defeated in any case by applying a mere verbal rule of strictness destructive of its plain intendment. “The letter (of the law) killeth, but the spirit giveth life.”

We now come to a consideration of the statute which, if any does, confers the right of appeal in the sense we have found, in this ease. It is Section 43, 103 Ohio Laws, p. 88, and is as follows:

“The board shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in case the final action of the board denies the right of the claimant to participate at all in such fund, on the ground:
“1. That the injury was self-inflicted, or,
“2. That the accident did not arise in the course of employment, or,
“3. Upon any other ground going to the basis of the claimant’s right, then the claimant, within thirty days after the final action of such board, may be entitled to a trial in the ordinary

We are next to consider what the plaintiff applied for when he came to the defendant board invoking its action. He says:

. “I hereby make application to the Industrial Commission of Ohio for the payment of money out of the state insurance fund for compensation for injuries sustained by me on the 8th of April, 1913. * * *
“(B) My injury consisted of double rupture.
“(D) My injury was not purposely self-inflicted.”

Coming finally to the record of the hearing had of this application by the defendant board, it does not appear that the plaintiff was present. He says in his petition that he was not present and that he had no notice of it. And this is not controverted by the answer or otherwise. The finding of fact made at the hearing was in the following language:

* * * “That applicant’s injury consisted of a hernia, not resulting from a/n injury received■ in course of his employment. * # * That said injury was not purposely inflicted. * * * That proof on file is such as to show am aggravation of said hernia, for which an award is allowed as above.”

The award thus referred to states the injury before the board for action, as follows: ' ‘ Injury; double inguinal hernia. ’ ’ And the award proper is in these words:

“For medical services — $3. (Dr. O. E. Biddinger, 756 Run Bldg., Cleveland, 0.)
“For truss — $3.50. (Applicant.)
"For compensation — $7. ’ ’

The seven-dollar item is stated to be “two-thirds weekly wage. ’ ’

This finding, upon which the action of the board denominated an award is founded, affirmatively brings the case within the second exception of the statute which we have quoted — namely: that the injury passed upon "did not arise in the course of employment. ’ ’ So that, if all compensation was refused, the right of appeal would be established, and the plaintiff would have his day in court on that footing and “be entitled,” as the statute says, “to a trial in the ordinary way,”

An avoidance of this effect is sought, and apparently it was so intended by the finding, in the fact that an award of seven dollars was made as ostensible compensation for what is said to be an aggravation of the hernia, for causing which alone compensation was asked.

The application made by the plaintiff is in the record in full and it is in no respect doubtful or ambiguous. Specifically and without an alternative asking, it calls for compensation for a double rupture arising in the course of the plaintiff’s employment. Just as specifically, the finding is that the injury did not so arise.

The plaintiff did not apply for any relief upon the ground that his injury was a pre-existing injury which had been “aggravated” in the course of his employment, and the finding does not say that the. aggravation so arose. The award was for a thing not asked for and was in the nature of a voluntary act on the part of the commission. Whether it was regarded as a charity or donation or something akin to that in nature or intent, does not clearly appear, but that it could have been considered as in any reasonable or just sense a thing of compensation, seems to be negatived by the measure of relief purported to be advanced by the award itself as to its amount. The injury, if there was one, occurred on the 8th day of April, 1913. The application was sworn to on the 10th day of October, 1913. It was heard, and the alleged award was made October 24th.

And yet the allowance was as for two-thirds of the man’s wages for one week. That an aggravation of a double hernia should cease abruptly at the end of a week is hardly supposable. Yet the award made necessarily supposes that, if the award was made on the footing of compensation alone, which is the only basis the statute allows. And the aggravation found was found, apparently, as existing at the date of the finding, which was more than six months after the time of the injury. The language is in the present tense.

In that case the disproportion between the compensation due and that awarded reaches the vicinity of the grotesque. It is certain, to our apprehension, that the award was for something clearly that the plaintiff had not asked and did not want, and that it was not made upon his application, but by the mere flat of the defendant board. If that was done as an act of supposed charity, or was bestowed as an unearned bounty, it was an unauthorized act and beyond the power of the board to do it.

The application was for compensation for an injury arising in the course of his employment. By its finding that the injury did not so arise, the board, for that injury, awarded him nothing. Under the law, so finding, it could not have awarded him anything. To have done so would have been a plain contradiction in terms and a palpable misuse of the public funds entrusted to the board for distribution only to those entitled. If the disposition of the seven dollars and the price of a truss and the payment of a doctor’s bill was a supposed donation or a charity proceeding on equitable grounds, it was equally a malversation of a' public trust, a volunteer service to an individual, not warranted by law. In terms of his application, the plaintiff got nothing by the award. Whatever that award was it was not compensation. Compensation is the plaintiff’s right, if right he had. It would be grossly unjust to him to deprive him of his right and substitute a supposed charity in its place. It is the infirmity of far too many public agencies today to deny rights and ask men to make mendicants of themselves instead. They mistake the temper of our people altogether. We are not yet ready to be made Neapolitans of, as that nation of beggars was a century ago. Right and charity are enemies and not allies.

Shall this saving performance of throwing a sop of two-thirds of a week’s wage and a truss to one however deserving, be allowed to operate as a defeat of the right the plaintiff; would otherwise have to bring his case to court and wage his law there? To say yes would be doing violence to the spirit and intendment of the act which alone confers power upon che defendant board. And it would contradict its letter. As to what alone he asked, the plaintiff took nothing under the finding. Again stated, that finding was that he did not come to his injury in the course of his employment, and also again stated, this brings his contention within the second named exception to the finality of the board’s action, as enumerated in the statute. And, having regard to the effect now claimed for the seven dollars and a truss allowance, namely, to defeat all right of appeal to the courts, we may not be surprised that the plaintiff reasonably fears the bounty of the ‘ ‘ gift-bearing Greeks. ’ ’

Having thus fixed the ultimate quality of the award purported to have been made, and having a proper regard to, and sense of, the operative effect expected by the defendant to be given to it, we may without impropriety, as we think, appeal to the legislative intent to be found in the act itself, through which alone the board has its being and brings its activities to bear. A part of this is as follows:

‘ ‘ Such board shall not be bound by the usual common law or statutory rules of evidence, or by any technical rules of procedure, other than as herein provided; but shall make the investigation in such manner as in their judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of this act. ’ ’

We can not bring ourselves to think that this wholesome immunity from the shackles of common law rules is in any plain case to be used as a club to knock the real purpose of the act into insensibility, or as a sponge, saturated with chloroform to bring about a like condition. We do not believe that this salutary admonition to do justice, though the heaven of red-tape shall fall, can be prostituted into a letter of marque to prey upon the rights of a really meritorious claimant of its benefits. Our opinion is that this provision rests under no such scandalous reproach as that, but that it is provident of the rights of the injured as well as those who for a little while may happen to make up an administrative board. And applying it in that view, although we confess we do not see the need of it, since the board clearly denied the plaintiff the relief, and all the relief he asked, but in shaping our course upon the latitude of this beneficent and good sense provision of the act, we say, and how stands the case? “Ask and ye shall receive,” is the scriptural exhortation. The plaintiff asked, but did not receive — not what he asked, but something quite different — different both in origin and as to measure. Because he was denied, shall a court deny him a hearing which the law says he shall have in case he does not receive what he asks, although he may be allowed something that he did not ask ? Another injunction of Scripture is eminently suggestive of what our fit answer should be — -“knock, and it shall be opened unto you.” The plaintiff is knocking and the admonition is to open, i. e., the way into court.

“Ye who turn judgment to wormwood,” is the denunciation of the prophet of old. And the acute and excellent Bacon adds, “And surely there be also that turn it into vinegar,”

We are, therefore, not without forewarning of what we think we are expected to do by joining in a judgment the effect of which will be to turn a claimant out of the only court that can be open to him, without any real meaning of the word.

That the award of seven dollars and a truss was engendered from a purposeful design to “beat the law” is not to be thought of by any man with charity enough in him to be self-respectful. If that were to be imputed to any as certainty, the poverty of the English language would be too great to fitly characterize it. The idea could not be tolerated except upon the impossible supposition that appointive boards consider themselves irresponsible, not only at the bar of the law, but to that healthy corrective even of law itself — the power of an informed, conservative and conscientious public opinion, exerting itself through law-serving agencies, and reaching the uttermost nerve and limb of the body politic, to the healing of all their disorders. "We are glad, for the defendant, to repel and resent the imputation.

But we do find as a fact that the defendant body ‘ ‘ denied the right of the claimant to participate at all’ in (the) such funds, on the ground, * * * 2. That the accident did not arise in the course of employment,” and that an award of something of which he was at no time or in any manner a claimant, ought not to, and can not, defeat his right to appeal, dependent only upon the denial of the claim made.

Another conclusion would, in our opinion, do manifest violence to the spirit of the act in question, be destructive of its letter and very damaging to its effect as an expression of the mature and just policy of Ohio in its relation to a matter of grave and important public concern.

We should in any ease be very loth to so declare a law passed for his benefit, as that a meritorious suitor should have it to say:

“And be these juggling fiends no more believ’d
That palter with us in a double sense;
That keep the word of promise to our ear
And break it to our hope.”

So finding, it follows that the court of common pleas should have entertained the plaintiff’s appeal in this cause and taken jurisdiction to hear and determine the matter of his petition, as directed by law.

It was error not to do so, for which the judgment complained of is reversed, and the cause is remanded to the court from whence it came here, for such further proceedings as may be in accordance with law.

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


source: Caselaw Access Project

license: Public Domain

text:
    ACT RELATING TO DELINQUENT CHILDREN REFORMATORY IN CHARACTER..
    Court of Appeals for Richland County.
    Leonard, Superintendent, v. Licker.
    Decided, September 11, 1914.

      Constitutional Law — Juvenile Court — Delinquent Child — Section 1652, General Code, Constitutional — Commitment to Reformatory — -Sentence Under Section 1681, General Code, as to Felony Charge, Discretionary.

    1. The provisions of the General Code relating to delinquent children are reformatory in their nature and not penal; hence the provisions of Section 1652, General Code, that “where it appears upon the hearing that such delinquent child is sixteen years of age, or over, and has committed a felony” he may be committed to the Ohio State Reformatory, is not unconstitutional.
    2. Section 1681, General Code, is discretionary and not mandatory, and a .delinquent child, charged with a felony, may be committed as provided in Section 1652, or recognized to the court of common pleas, subject to the requirements of the general criminal laws' of the state, at the discretion of the juvenile judge.

      Clarence D. Layliii, for plaintiff in error.

      Ezra Brudno, contra.
    Powell, J.; Voorhees, J., and Shields, J., concur.
   Tbe petition in error recites that the court of common pleas for this county, in a proceeding pending therein upon an application by the defendant in error, Barnett Licker, for a writ of habeas corpus on the plaintiff in error, J. A. Leonard, as superintendent of the Ohio State Reformatory, inquiring into the cause of the imprisonment and detention by plaintiff in error of one Samuel Licker, rendered judgment and made final order discharging said Samuel Licker from the custody of the plaintiff in error, and remanding him to the custody of the juvenile court of the county of Cuyahoga, that being the county from which the said Samuel Licker had been committed to the Ohio State Reformatory. The errors complained of are:

First. That the court of common pleas erred in discharging said Samuel Licker from custody.

Second. That the judgment of said court is contrary to the law of the land.

Third. That the final order made by the said court of common pleas affects the substantial rights of the plaintiff in error as superintendent of said reformatory, in that it interferes with the plaintiff in error in the discharge of the duties imposed upon him by law and by the order of the juvenile court within and for said Cuyahoga county, as set forth in the return filed by him in said proceeding and herein referred to.

A hearing was had upon the petition in error in which two principal contentions were urged:

First. That the statute under which the said Samuel Licker was committed to the Ohio State Reformatory was unconstitutional, in that no provision is made therein for indictment by the grand jury and trial to a jury as provided by law.

Second. That the statute itself does not authorize the commitment of juvenile delinquents between the ages of 16 and 17 years to the said Ohio State Reformatory.

Upon examination of the statutes the court has arrived at the conclusions following:

First. That the statute authorizing such commitment is not unconstitutional.

Second. That the said Ohio State Reformatory is not exclusively a place for the punishment of criminals.

Third. That the proceedings under the acts relating to juvenile delinquents are not criminal in their nature, but are intended to be and are reformatory.

Fourth. That the objects of the Ohio State Reformatory, in addition to being a place of detention for criminals, and therefore a prison as to such persons, are reformatory as to any other class of persons than criminals that may be authorized by law to be committed thereto.

Fifth. That the said Samuel Licker was ordered to be confined in the Ohio State Reformatory by the juvenile court of Cuyahoga county, Ohio; that he was between 16 and 17 years of age; that he was found by said court to be a delinquent, and that he had committed an act that would constitute a felony when committed by a person of full age, namely, that he was guilty of grand larceny.

By the terms of Section 1652, General Code, a juvenile delinquent, "where it appears upon the hearing that such delinquent child is sixteen years of age, or over, and has committed a felony,” may be committed to the Ohio State Reformatory.

Section 1681 provides that:

"When any information or complaint shall be filed against a delinquent child under these provisions, charging him with a felony, the judge may order such child to enter into a recognizance, * * * for his appearance before the court of common pleas at the next term thereof. The same proceedings shall be had thereafter upon such complaint as now authorized by law for the indictment, trial, judgment and sentence of any other person charged with a felony.”

This statute is not mandatory in its character, requiring the court to order such child to be sent to the court of common pleas to be there dealt with as provided by law for persons charged with crime. It is merely permissive, and its provisions are not confined to delinquent children between the ages of 16 and 17 years, but apply to any and all delinquent children who may be charged with a felony, without reference to the age of such delinquent.

This statute is not'in conflict with the provisions of Section 1652. Section 1652 provides a different place for the confinement of delinquent children over 16 years of age from the places of confinement to which all other delinquent children may be committed, namely, to the Ohio State Reformatory. Section 1681 provides that delinquent children of any age charged with a felony may be indicted and subjected to the provisions of the general criminal statutes and punished as may be provided therein.

The said Samuel Licker was committed to the Ohio State Reformatory under the provisions of Section 1652, the court in that ease exercising its discretion as to the place of commitment. A large discretion is given to the juvenile court in the handling of delinquent children. This must necessarily be so because of the great variety of circumstances in which such delinquency appears.

It has been held by the Supreme Court of the state of Ohio with reference to the constitutionality of certain sections providing for the commitment of children now known 'in the statutes as delinquent children, that “It is neither a criminal prosecution, nor a proceeding according to course of the common law, in which the right to a trial by jury is guaranteed. The proceeding is purely statutory; and the commitment, in cases like the present, is .not designed as a punishment for crime, but to place minors of the description, and for the causes specified in the statute, under the guardianship of the public authorities named, for proper care and discipline, until they are reformed, or arrive at the age of majority. The institution to which they are committed is a school, not a prison; nor is the character of their detention affected by the fact that it is also a place where juvenilé convicts may be sent, who would otherwise be condemned to confinement in the common jail or the penitentiary. ’ ’

This language is a part of the opinion of White, J., as found in Prescott v. The State, 19 Ohio St., 184, 187, and the same was said with reference to a minor who was committed to the boys’ industrial school, then called “The Reform Farm,” for an act which, committed by an adult or a person beyond the age of commitment to such reform farm, would have constituted a felony for which he would have been confined in the penitentiary.

This, as we view it, is applicable to the ease at bar. The Ohio State Reformatory is a prison for persons who are convicted of felonies and committed thereto upon a sentence of the court following such conviction; but for delinquent' children who may be committed thereto after having committed an act constituting a felony it is only a school or place of reformation. It is what its name imports, a reformatory. The case just cited sustains the position of the court in this regard.

We think further that the Supreme Court has affirmed its view of the law relating to such matters in the case of The Cin cinnati House of Refuge v. Ryan, 37 Ohio St., 197. In that case it was said by Judge Johnson, page 203:

‘ ‘ The commitment is not designed as a punishment for crime, but to place destitute, neglected and homeless children, and tliose who are in danger of growing up as idle and vicious members of society, under the- guardianship of the public authorities, for their proper care, and to prevent crime and pauperism. As to such infants, it is a home and a school, not a prison. ’ ’

This more clearly defines the nature of institutions of this kind.

We think that the distinctions drawn in each of these two cases relate equally well to the case at bar, that the Ohio State Reformatory is not intended exclusively as a place of confinement for criminals, and that upon the passage of proper statutes for that purpose it may be made a place of confinement for juvenile delinquents who may be in need of reformation, as seems to have been true in the case at bar.

For these reasons we are of the opinion that the statute is constitutional, that in proceedings under the juvenile delinquent acts there is no right to a trial by jury in which the accused should have the right to face the witnesses and such other rights as are guaranteed by the Constitution, and that they may be sent by summary proceedings to said reformatory, as a means to their reformation and not for punishment.

The judgment of the court of common pleas will be reversed, and the court, proceeding to render the judgment that should have been rendered in the court below, dismisses the application for a writ of habeas corpus and renders judgment in favor of plaintiff in error.

Judgment reversed and judgment for plaintiff in error.


text:
    TESTAMENTARY GUARDIANS OF MINORS.
    Court of Appeals for Holmes County.
    Henicle, Administratrix, v. Flack, Guardian.
    Decided, October 29, 1914.

      Guardianship — Designation of Person in Will — Section 10930, General Code — Appointment by Probate Court Necessary, When — Sections 10492 and 10931, General Code — Estates—Minors.
    A testamentary guardian of a minor, named by will, pursuant to tbe provisions of Section 10930, General Code, is without authority to act as such guardian until he has been appointed guardian by the probate court having jurisdiction to make such appointment.

      Newton Stilwell, for plaintiff in error.

      Charles R. Cary, contra.
    Powell, J.; Shields, J., and Grant, J. (sitting in place of Voorliees, J.), concur.
    Suit was brought on an account by plaintiff, Ellen Lemon Iienicle, administratrix, against Della Flack, as testamentary guardian of Peter Painter, a minor, without any averment in the petition that such defendant had been appointed as such guardian by the probate court of this or' any other county of the state.
   To this petition a general demurrer was filed and sustained and, plaintiff not desiring to amend, the petition was dismissed. A petition in error was then filed in this court to reverse the judgment of the court below.

The question presented for consideration is the status of a testamentary guardian of a minor, without any appointment as such guardian having been made by the probate court.

A testator may name a guardian by will for his minor children. Section 10930, General Code.

"When so named "he shall be entitled to preference in appointment over all others, without reference to his place of residence, or the choice of such minor. His appointment, duties, powers, and liabilities ■ in all other respects shall be governed by the law regulating guardians not appointed by will, except as otherwise specially provided. ’ ’ Section 10931, General Code.

This would indicate that a guardian named by will but not appointed by the probate court is without legal standing other than his right to preference in the appointment of such guardian. There are two main reasons why this should be so:

1. That no unsuitable person should be appointed guardian over infants of tender years, to their detriment; and

2. Otherwise the probate court would be without authority "to appoint and remove guardians, direct and control their conduct, and settle their accounts,” in eases where a guardian has been designated by will. This jurisdiction is exclusive. Section 10492, General Code.

This provision as to guardians is analogous to the appointment of executors named as such in the wills of testators. Section 10605, General Code.

An appointment must be made by the probate court or the executor so named is without authority to act, but the appointment of the executor named in the will is discretionary with the court. The authority of such executor to act is not derived from the will, but from the appointment of the court having jurisdiction over the subject-matter of the action.

The court of common pleas did not err in sustaining the demurrer to the petition, and its judgment will be affirmed.

Judgment affirmed.


text:
    BILL OF EXCEPTIONS SIGNED BY ANOTHER. THAN THE TRIAL JUDGE.
    Court of Appeals for Cuyahoga County.
    Leichtman et al v. Stein et al.
    Decided, January 26, 1914.

      Bill of Exceptions — Tinvc for Perfecting — Death of Trial Judge — Contracts — Sub-Contractor Completes Work — Verbal Promise to Pay— Statute of Frauds — Debt or Default.

    1. When a bill of exceptions is filed within the time allowed by law and error proceeding's duly instituted, neglect of the trial judge to settle the bill of exceptions and his subsequent sickness and death authorize another judge of the district to settle the bill, and it will be considered by the reviewing court ■ though settled by such other judge long after the expiration of forty days from the overruling of the motion for a new trial.
    2. L entered into a contract with K for the building of a house; K sublet the mason work to S, who entered upon his contract but discontinued his work upon K’s refusal to pay him as agreed; thereupon L verbally agreed with S that if he would go on with his work and finish his contract with K, L would pay him the balance due K, for work already done and for finishing the job; S thereupon proceeded with his work, but upon the refusal of L to pay him again, discontinued work and sought to compel L to pay him for all work he had done on the house. Held; The verbal agreement between L and S was within the statute of frauds and unenforcible.

      M. V. Emmerman, for plaintiff in error.

      A. Kolinsky, contra.
    Winch, J.; Meals, J., and Grant, J., concur.
   Tbe first question in this ease is whether the court can consider the bill of exceptions which was allowed under the circumstances shown by the certificate of the presiding judge of the common pleas court as follows:

“In this case, No. 123,577, Samuel Leichtman et al v. F. Siein et al, in signing this bill of exceptions, I deem it only right to make this statement to accompany the bill, and then submit the whole matter to the court of appeals.
“It seems that the case was tried before Judge Babcock and a jury on the 24th of December, 1912 — that is, the case was commenced on said date — and that a verdict was rendered in favor of the defendant. Afterwards a motion for a new trial was filed on the 31st of December, 1912, and on the 4th day of February, 1913, the motion was overruled. On the 14th day of March, 1913, plaintiff filed with the clerk of the court a bill of exceptions setting forth all the evidence and the charge of the court, to which bill of exceptions certain exceptions were filed by the defendant, and it seems that these exceptions never had been passed upon by the trial judge and that he did not sign the bill of exceptions within the time allowed by law: neither was there a refusal to sign, so far as the record shows. From information derived from both sides I find that there were several attempts made to secure a hearing before the trial judge and that nothing definite was done by him; that he had promised to sign from day to day and postponed doing so until, in June, he was taken ill and died, leaving the bill of exceptions unsigned. The ease was taken to the court of appeals and there referred back to the trial court for the reason that the bill had not been signed. It came before this branch of the court as presiding judge of this district for the ensuing term, and, in order to get at the rights of the parties, I have had interviews with the attorneys on both sides, and the situation seems to be as above set out.
“I have been'over the bill of exceptions, and it seems to be regular in form and that no serious objections are made to it. The exceptions that were filed were perhaps technically correct, but' they savor of captiousness and they go mostly to matters that are immaterial — for instance, as to the statements that counsel made, and denjdng some things with respect to having witnesses subpoenaed, etc., which did not and could not go to the merits of the case or have anything to do with it.
“So far as I am able to see from the record the testimony was taken by a stenographer and the questions seem to be all down and the answers responsive to the questions.
“It is claimed by one side that Judge Babcoclc refused to sign the bill of exceptions. It is claimed by the other side that he kept on promising to sign, but neglected to do so; and in order to have the case properly reviewed and the parties have their legal rights, I have signed the bill of exceptions under the circumstances set out in the statement hereto attached.
“Willis Vickery,'
“January 2. 1914, ’ “Presiding Judge.”

It thus appears that plaintiff in error filed the bill of exceptions within the time allowed by law. It further appears from the transcript of the docket and journal entries that he filed his petition in error in the court of appeals within the time allowed by law. He thus did everything recpired of him by law to entitle him to a review of his case on the evidence in this court.

The question is, shall he be deprived of his rights by the neglect of the trial judge to allow and sign his bill within the time specified in the statute 1 The question, happily, is not an open one. There are two cases in the 85th volume of the Ohio State Reports which show the progress of the law regarding these matters.

In the case of Cincinnati Traction Co. v. Ruthman, 85 Ohio St., 62, the point decided was, that where the bill is filed within time and the trial judge has allowed it within time, but has neglected to certify his allowance by his signature, he may, after time for signing has expired, sign the same, the holding being: “Such act, when omitted to be done at the time pre-

scribed by statute by oversight of the judge, may be done by him in a proper case nunc pro tunc.”

The case of Pace v. Volk, 85 Ohio St., 413, goes one step further and holds:

“Proceedings in error being statutory, the requirement of Section 11564, General Code, that ‘the party excepting must reduce his exceptions to writing, and file them in the cause, not later than forty days after the overruling of the motion for a new trial’ is mandatory; but the provisions of the following sections defining duties of the clerk and of trial judges with respect to a bill of exceptions which a party has so filed within the time required are, as to the time of the performance of such duties, directory merely.
“A bill of exceptions, taken upon the trial of a cause in the court of common pleas, and by the exceptor reduced to writing and filed in the office of the clerk within the forty days so limited, will become a part of the record to be considered by a reviewing court if the bill is signed by the trial judge and filed iu the office of the clerk in accordance with the requirement of Section 11572, General Code.”

The provision of Section 11572, here referred to, is that the plaintiff in error may file his petition in error, transcript and other papers in the proper court without waiting to perfect a bill of exceptions, and may thereafter, within the time limited by law, prepare, have allowed and signed a bill of exceptions, which, when duly allowed and filed in the trial court, he also may file in the error proceedings; whereupon it shall be received and considered by the reviewing' court as if filed with his petition in error.

Section 11568, General Code, provides that in case of sickness, death, expiration of his office, or other disability of a trial judge, on request of the party preparing such bill, it shall be presented by the clerk to any other judge of the district, who shall act thereon and dispose of the matter in the time and manner required of the trial judge.

It was under this statute that the bill in this case was allowed and signed.

. From the statutes and decisions cited we conclude that said bill is properly before us for consideration.

Such being the case, we find it necessary to look to it for the determination of only one question of fact, and that is that the promise sued on by defendant in error in his cross-petition was an oral one and not in writing. Perhaps even that fact may be inferred from the language used by defendant in error who was defendant below, in his cross-petition.

Plaintiff sued to quiet his title as against a mechanic’s lien filed by the defendant, which set up a claim for masonry work done on the plaintiff’s premises. Defendant answered and cross-petitioned, asking for judgment against the plaintiff on the following claim:

“Defendant, for his cross-petition, says that on or about the 14th day of January, 1911, he entered into a written agreement with one A. Karanofsky by which the said defendant agreed to provide all of the materials and perform all of the work for the masonry work of a two-family, frame dwelling being built for plaintiff on the premises described in plaintiff’s petition according to the plans and specifications of one S. H. 'Weis, architect.
“Defendant further says that said written agreement provided that said A. Karanofsky was to pay to said defendant for the masonry work described in the agreement the sum of five hundred and fifty ($550) dollars, payable as follows:
“Two hundred and fifty ($250) dollars when ready for the joists; two hundred ($200) dollars when chimney and dividing wall is completed; and the final payment of one hundred ($100) dollars when all of the work described in said written agreement is completed.
“Defendant further says that in pursuance to said written agreement, he proceeded with said work until same was ready for the joists, and that said defendant was then entitled to his first payment of two hundred and fifty ($250) dollars, but that •said A. Karanofsky, disregarding said written agreement, paid to him the sum of only one hundred and fifty ($150) dollars, and that on account of said A. Karanofsky disregarding his written agreement with him, the said defendant refused to proceed further with said work.
“Defendant further says that on or about the 27th day of February, 1911, said plaintiff agreed with said defendant to pay to the said defendant the balance of four hundred ($400) dollars due on said written agreement for the masonry work, as provided for in said written agreement, in consideration of said defendant completing the work described in said written agreement with A. Karanofsky.
“Defendant further says that in pursuance to said agreement with the said plaintiffs, he immediately proceeded to complete said masonry work and worked on same until March 9, 1911.
“Defendant further says that plaintiffs made no payments to him, whatsoever, on said work, but on the contrary, said plaintiffs, on or about the 9th day of March, 1911, notified said defendant that they would not pay said defendant anything for said work, and then and there repudiated their said agreement with said defendant, and thereupon said defendant refused to proceed further with said work.
“Defendant further says that the work and materials furnished by him, as aforesaid, was reasonably worth the sum of four hundred and ninety ($490) dollars, and that said defendant has received thereon the sum of one hundred and fifty ($150) dollars from A. Karanofsky, as aforesaid, and defendant says that there is now due him from said plaintiffs the sum of three hundred and forty ($340) dollars with interest thereon at the rate of 6 per cent, per annum from the 9th day of March, A. D. 1911.”

There was a general denial to this cross-petition.

It thus appears that the'promise relied upon was to answer for the debt, default or miscarriage of another.

There is no allegation that plaintiff was relieved from his original promise to pay A. Karanofsky for the same work which, the pleader says, was covered by the owner’s contract with the principal contractor. So far as appears, plaintiff is still liable to pay the contractor for work done under the contract by the contractor’s sub-contractor. The completion of this work by Stein is referable to the contract with Karanofsky and in compliance with it. Here the statute steps in, very wisely, as the result in this case shows, for there was some tall lying done in this case by somebody; by whom we need not inquire, for the statute provides for the ease.

The case of Birchell v. Neaster, 36 Ohio St., 331, is applicable here. The syllabus of that case is as follows:

“A. let a contract to B. for furnishing materials and building a house for a stipulated sum. B. employed C. to furnish materials and to perform the labor of plastering. "When the building was completed, except a small part of the plastering, C., in.the absence of B., informed A. that he would not finish the plastering unless A. would agree to pay him; and A. replied, ‘Finish the- plastering and I will see you paid.’ The obligations of B. to complete the house and to pay C. not being released, Held, that the verbal promise of A. to see C. paid was within the statute of frauds.
“The fact that there was due from A. to B., at the time the promise was made, a sum sufficient to pay the balance to C., did not take the promise out of the statute.
“In an action by C. against A., upon such promise, issue being joined by a general denial, it was competent for A. to rely upon the statute of frauds. ’ ’

The application of the law here declared was invoked by plaintiff immediately upon the close of the statement by counsel for defendant of his claims under the cross-petition, by a motion that the ease be taken from the jury and a judgment entered for the plaintiff.

The reason given in support of said motion by counsel for plaintiff did not touch the real point in the ease, but the motion was well- taken and should have been granted for the reasons stated in the ease cited.

For error in overruling said motion the judgment is reversed and, proceeding to render the judgment which the court below should have rendered upon the conceded facts of the case, the cross-petition of the defendant is dismissed and judgment is rendered for the plaintiff in error on his petition.

Judgment reversed, and judgment for plaintiff in error.


author: Shields, J.

text:
    PROSECUTION FOR. CAUSING MISCARRIAGE.
    Court of Appeals for Wayne County.
    Wylie Waite v. State of Ohio.

    Decided, September Term, 1915.

      Criminal Law — Venue—Where a Miscarriage Was Caused in One County But Occurred in Another — Testimony of the Woman is that of an Accomplice.

    1. W'here a woman is induced to submit to and does submit to a criminal operation in one county and the resulting miscarriage occurs in an adjoining county, the venue is properly laid in the county in which the inducement took place and the operation was performed.
    2. A woman who voluntarily submits to an operation for the purpose of causing a miscarriage is an aider and abettor of the crime, and in the prosecution of the one who caused the operation to be performed her evidence should be regarded as that of an accomplice.

      A. D. Metz and G. W. Smith, for plaintiff in error.

      G. S. Starn, Prosecuting Attorney, contra.

      Motion for an order directing the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 9, 1915.

   Shields, J.

The indictment herein was returned by the grand jury of Wayne county, Ohio, at the April (1915) term of the court of common .pleas of said county and charges that- — -

“AYylie AVaite on the 23d day of November in the year of our Lord one thousand nine hundred and fourteen, at the county of Wayne aforesaid, unlawfully, wilfully and knowingly, did use a certain instrument, the name of which instrument is to the jurors aforesaid unknown, in and upon the body and womb of one Margaret Iiogue, she, the said Margaret Iiogue, being then and there a pregnant woman, with intent then and there and thereby to procure the miscarriage of said Margaret Iiogue, the said miscarriage not being then and there necessary to preserve the life of said Margaret Iiogue, and then and there not being-advised by two physicians to be necessary for said purpose, and by means and in consequence of the use of said instrument, by the said Wylie Waite, with the intent aforesaid, she, the said Margaret Iiogue afterwards, to-wit, on the 26th day of November, 1914, miscarried and was prematurely delivered of a child.”

A plea of not guilty was entered to said indictment by the accused and upon trial had he was found guilty. A motion for a new trial was overruled and he was sentenced according to law.

Numerous grounds of error were assigned in the petition in error filed herein for the reversal of the judgment of the court below, but the principal error alleged and urged was that the court below had no jurisdiction of the offense charged in said indictment for the reason that said offense, if committed, was not committed in said Wayne county, but in Medina county, Ohio, and therefore the venue was improperly laid in said Wayne county.

That venue is one of the essentials in an indictment is not open to question, for the rales of criminal pleading require that the time and place of every act essential to the offense charged shall be stated. This necessity arises from various reasons, among which is that it must appear that the court taking cognizance of the case had jurisdiction of the same, and, further, that the offense charged was committed in the county where the defendant was indicted and tried for the same.

As stated, it was contended on behalf of the plaintiff in error that the offense charged, if committed, was committed in' Medina county and not in Wayne county. From the evidence introduced upon the trial, on the part of the state, it appears that after an intimate association between the plaintiff in error and one Margaret Hogue for a considerable period, followed by acts of sexual intercourse, the latter became pregnant with child, which fact was communicated to the plaintiff in error, who advised that she submit to an operation to effect a miscarriage, to which she assented. Accordingly, and soon thereafter, as appears by the record, the plaintiff in error arranged for such operation to be performed by one Dr. J. W. Lehr in Wooster, Wayne county, Ohio, and in pursuance of such arrangement and by special appointment with said Lehr, the plaintiff in error accompanied the said Margaret Hogue to said Lehr’s office in the evening of November 19, 1914, when an operation by the use of an instrument in the hands of said Lehr, at the instance, by the procurement and in the presence of the plaintiff in error, was caused to be performed by the said Lehr upon the said Margaret Hogue, with ihe intent and for the purpose of procuring a miscarriage. It further appears by the record that it became necessary for the said Margaret Hogue to make a second visit to the said Lehr’s office for said unlawful purpose, whereupon the said Margaret Hogue, accompanied by the plaintiff in error, in pursuance of a prior appointment made by the plaintiff in error with said Lehr, again went to said Lehr’s office in the evening of November 24, 1914, and at the instance, by the procurement, and in the presence of the plaintiff in error, said Lehr again performed an operation by the use of an instrument upon the said Margaret Hogue, with the intent and for the purpose of "procuring a miscarriage, and that on the 26th day of November, 1914, the said Margaret Hogue, as a result of said operation, had a miscarriage and was delivered of a child in Medina county, Ohio.

Under the foregoing state of facts it was contended that the venue was in Medina county, and that the Court of Common I’leas of Wayne County had no jurisdiction of the case. In this contention of counsel we do not agree. Under the foregoing statement, if true, the physical act of using an instrument for the purpose and with the intent to destroy a vitalized foetus, prohibited by Section 12412 of the General Code, was performed in said Lehr’s office in Wayne county, and said act so performed and prohibited was then and there completed, the premature delivery of the child being an incident to or the result of such unlawful act. Said statute seeks to prohibit and punish the unlawful act described therein; namely, the prescribing or administering of medicine or drug, or the use of an instrument with intent to procure a miscarriage of a woman and a miscarriage follows “in consequence thereof.” It will thus be seen that said statute aims to prohibit and punish the act — the act of using an instrument in this case for the purpose and with the intent to procure a miscarriage. ITere such act was performed for the purpose and with the intent aforesaid and rendered complete in contemplation of law, in our judgment, before the victim left the office of said Lehr in charge of the plaintiff in error in the evening stated, leaving as she did only to await the “consequence” of the unlawful act then already performed in Wayne county. Counsel for plaintiff in error seem to rely with no little confidence upon and refer us to the ease of Robbins v. State, reported in 8 O. S. Reports, as sustaining their contention herein. We find nothing in the holding in that case, under the facts therein stated, in conflict with the holding here. In that case it appears that a poison was prescribed in one county and taken in another, as a result of which death ensued, and the court held that the offense was not completed until the poison was actually taken, and in the opinion in said case it is stated that:

“It is not the place of the death, but the place where the criminal act is performed or consummated, to which jurisdiction to try the case is given.”

In the case at bar the criminal act consisted in the plaintiff in error causing said operation to be performed upon the person of Margaret Hogue for the purpose and with the intent of procuring a miscarriage on the evening stated in Wayne county. Obviously, the criminal act was then and there perpetrated. Other cases were also cited by the learned counsel for the plaintiff in error, but running through all of them is the principle that the unlawful act prohibited by the statute is the gist of the offense. If under the evidence here jurisdiction of the Wayne county court did not attach it is apparent that the provisions of said statute designed to afford protection to society against commercial traffic in human life are meaningless and a dead letter, thereby rendering escape easy from the punishment prescribed for a violation of said section by the convenient removal of the victim to a foreign jurisdiction. As tending to show the action of the Supreme Court of this state in a case involving a principle closely analogous to the principle involved here, we cite the case of Studer v. State, reported in 19 C. D., 33 (9 C.C.[N.S.],185), which said ease was affirmed by the Supreme Court without opinion in 74 O. S., 519, wherein it was held that:

“In Revised Statutes, 7023 (now Section 13027, Genera] Code), the gravamen of the offense is the decoying, the procuring and inducing, which being done in one county, while the house of ill-fame entered is in another, the venue to prosecute is properly laid in the county where the decoying, etc., was done.”

And the court in discussing the facts in said case on page 37, say:

“At the close of the state's testimony a motion was made to direct a verdict on the ground that the record then showed that the house of ill-fame that was entered by these two girls was in Stark county and not in Tuscarawas county, and that, therefore, the crime, if any crime was committed, was committed in Stark county. It is well known that a person shall not be held to answer for a charge except in the county where the crime was committed, and thus venue is important.
“ It is claimed in this case that the proof shows this crime was committed in Stark county. This woman was charged with inducing, decoying or procuring these girls to enter a house of ill-fame for the purpose of prostitution. We think the gravamen of this offense is the decoying, the procuring, the inducing; and when there is the decoying, the procuring and the inducing, followed by the entrance to the house of ill-fame for this immoral purpose, you will then have the crime complete, the venue, being where the decoying was laid, where the persuasion was exerted or where the inducement was held out. ’ ’

Without further extending the discussion of this feature of the case, we are of the opinion that the venue herein was properly laid in Wayne county and that the court below committed no error in so holding.

It was also urged that the court below erred in its instruction to the jury as to the necessity of the prosecutrix being eorroborated herein. On behalf of the plaintiff in error the following written request was asked to be given by the court in its charge to the jury, which was so given:

“That a woman who voluntarily submits and permits an operation to be performed upon her for the purpose of procuring a miscarriage is an aider and abettor of the crime described in Section 12412 of the General Code, and being the crime charged in the indictment in this ease, and that her evidence should be regarded as that of an accomplice.”

In addition to giving said request the trial court also instructed the jury on this subject that—
‘ ‘ The testimony of an accomplice should be very cautiously received and suspiciously scrutinized, and it would be unsafe to convict the defendant on her uncorroborated testimony alone as to some or all of the material facts necessary to establish said crime. And in this ease Margaret Hogue is recognized as an accomplice by the law, having admitted her part in procuring said miscarriage. * * * It is not necessary that the crime charged in this ease be proven independently of the testimony of Margaret Hogue, the accomplice, or that her testimony be corroborated in every particular in order that it may be said to be corroborated, but only that there is circumstantial evidence or testimony of some witness other than said Margaret Hogue tending to connect the defendant with the crime charged, and prove some of the material facts as testified to by the said Margaret Hogue.”

As tending to show the plaintiff in error’s guilty connection with the offense charged, testimony in the nature of confessional statements alleged to have been made by the plaintiff in error to sundry witnesses at different times and places was introduced, all of which was proper to be considered by the jury with reference to the evidence of the prosecutrix in determining whether or not the same corroborated her in some material matter and tended to connect the plaintiff in error with the offense charged. The foregoing instruction we understand to be in harmony with the rule laid down by our Supreme Court in the case of State v. Robinson, 83 O. S., 136.

Other grounds of error, are also alleged in said petition in error, among them, the improper admission and rejection of evidence upon tlie trial, and that the Verdict is against the manifest weight of the evidence, all of which we have examined into and find no such error in either of the respects mentioned as to justify the reversal of the judgment of the court below.

Finding no error in the record prejudicial to the plaintiff in error, the judgment of the court of common pleas will be affirmed, and said cause is remanded to said court for execution.

Powell, J., and Pollock, J. (sitting in place of Houck, J.), concur.


text:
    ENFORCEMENT OF MAGISTRATE’S JUDGMENT ENJOINED.
    Circuit Court of Wood County.
    Benj. F. James et al v. Vincent D. P. Fildes and Claud Wyant.
    Decided, May 3, 1912.

      Justice of the Peace — Injunction Against Enforcement of Judgment of— Failure of Justice to Enter Judgment on Docket — Parties—Variance.
    1. In an action to enjoin enforcement of a judgment rendered by a justice of the peace, the only party which good practice requires should be made a defendant is the plaintiff who is seeking to enforce the judgment.
    2. In such an action, in which it was alleged that the judgment was fraudulently obtained, the testimony disclosed that while a judgment appeared on the transcript of the proceedings before the justice no judgment was ever entered upon his docket. Held:

    That the variance was immaterial and the defendants had not been misled thereby, and that the plaintiff should be given leave to amend his petition forthwith and judgment thereupon entered enjoining proceedings for enforcement of the alleged judgment.

      James & Kelly and Edic. Beverstock, for plaintiffs.

      Claud Wyant and Earl D. Bloom, contra.

      Richards, J.; Wildman, J., and Kinkade, J., concur.
    This action, which is pending here on appeal from the court of common pleas, is brought to enjoin the enforcement of an alleged judgment of Vincent D. P. Fildes, a justice of the peace of this count}', in an action brought by Claud Wyant against Benj. F. James and Edward Beverstoek.
   It appears from the evidence that Wyant sued before the justice of the peace to recover upon an account that was claimed to be due him from the defendants, and that at the time his action was brought Benj. F. Jamas, one of the defendants, was in Spain. Certain correspondence ensued between the justice of the peace and J. E. Kelly, who was acting as attorney for the defendants, relative to the continuance of the case until Mr. James should return. In a letter written by the attorneys to the justice of the peace under date of May 13th, 1.907, the justice is informed that counsel desired to make a defense to the action and that unless the cause could be continued until the return of Mr. James, so that his testimony might be had, it would be necessary for- the defendants in the ease to appeal to the court of common pleas, in which event they asked that the justice inform them of the amount of the appeal bond. On the next day, May 14th, 1907, the justice answered by mail giving the information that the case would be continued until the return of Mr. James and that it must be taken up as soon as possible on his arrival home. It appears from the evidence that he did in fact return home on or about June 12th, 1907. On June 15th, 1.907, without any communication having been made to either of the defendants or their attorney by either the plaintiff or the justice of the peace, the plaintiff Wyant appeared in the justice court and asked that the case be heard, and it appears to have been done. Tt seems that the justice found from the plaintiff’s evidence that the defendants were indebted to him in the sum of $50.18 debt and $24.20 costs. Neither James nor Beverstoek nor their attorney had any knowledge of the claimed judgment until some six weeks thereafter, when Mr. James was notified by letter from Wyant that judgment had been rendered Shortly thereafter this action in injunction was brought to prevent the enforcement of the judgment, the plaintiffs in their petition claiming that they had and have a valid defense to the claim and that they were deprived of an opportunity to make a defense and that they should have been advised in some form of the time when the case was to be heard by the justice of the peace.

The petition alleges in effect the rendition of the judgment, but that it was obtained through the fraudulent conduct of Fildes and Wyant. Upon the trial of the case in this court a transcript was offered in evidence, which, with some interlineations made at a date which does not clearly appear, shows a judgment in the amount stated. The justice of the peace, Mr. Fildes, however, was called as a witness. Upon cross-examination he was asked to account for the fact that a discrepancy existed between the transcript and the original docket, and he answeed: “The difference is with the last four lines; they are not in the docket.’ ’ Later, he said in answer to a question as to why that language is not on the docket, “Probably I forgot to put it in,” and he states that he may have made the transcript out and forgot to enter it upon the docket.

Now, the important fact in this case is that the last four lines, which are referred to in the testimony of Mr. Fildes as not being on the docket, are the lines which as they appear on the transcript purport to render a judgment, and without those lines the docket contains no judgment.

The statute provides, Section 10378, General Code, that the justice, when the trial is had by him without a jury, must enter judgment immediately after close of the trial, if the defendant has been arrested or his property attached, and that in other cases the judgment shall be entered either at the close of the trial or. if the justice desires further time, on or by the fourth day thereafter, both days inclusive.

The language of this section was under consideration by the Supreme Court of Ohio in Eaton v. French. 23 O. S., 560. In the course of the opinion the court say, speaking through Day, J., and after quoting the section to which reference has just been made: “this language is clear, specific and peremptory.”

It thus appears in this case that although more than four years have elapsed since the ease was heard before the justice, no judgment has in fact been yet entered upon his docket, and we think under those circumstances the plaintiffs are entitled to the relief prayed for in their petition in this case. It is doubtless true that good practice would require that the justice of the peace should not have been made a defendant, the only necessary defendant being the plaintiff in the justice’s court who was seeking to enforce the alleged judgment.

We are, however, confronted with the fact that the plaintiffs in this case, probably relying upon the transcript, averred in their petition that a judgment was entered, claiming the same, however, to be fraudulent. We think this discrepancy between the allegations and the proof is an immaterial variance as defined in Sections 11556, 11557, General Code, and it is apparent that the defendants have not been misled thereby.

We find from the evidence of the justice oE the peace himself that no judgment was in fact entered upon- his docket, and the plaintiffs may have leave to forthwith amend their petition in accordance with such finding.

The decree of the court will be in favor of the plaintiffs enjoining' the collection oE the alleged judgment.


text:
    AS TO ABANDONMENT OF A RAILWAY EASEMENT.
    Circuit Court of Cuyahoga County.
    The Cleveland & Pittsburgh Railway Company et al v. Frank B. Ward et al.
    Decided, October 28, 1912.

      Railroads — Basements—Abandonment—When Construction of New Line Does Not Abandon Old Right-of-way — Abandonment of Basement a Question of Intention.

    1. When land has been acquired for a right-of-way by a grant to a railroad company which contains a clause to the effect that the land is to be used only for the purpose of operating a railroad over it and for purposes convenient thereto, the passage of a resolution by the board of directors of the railroad at a later date, reciting that, for the purposes of eliminating grades and curves and to facilitate travel the line of the railway should be changed at that point, the actual construction of a new line of road upon a new right-of-way, and the removing of the rails and ties from the old right-of-way, do not amount to an abandonment of the old right-of-way for all purposes connected with the operation of a railway if the railroad company continues to exercise dominion over it and it appears that it would be valuable to the company for switching purposes.
    2. The question whether or not there has been an abandonment of an easement is to be determined by the intention of the holder of the dominant estate and such intention is not proven by a mere nonuser for a period of three years.

      Squire, Sanders & Dempsey, for plaintiffs.

      C. J. Gould and A. W. Lamson, contra.
    Marvin, J., Winch, J., and Niman, J., concur.
    Each of the plaintiffs is a railroad corporation. The first is the owner of a railroad line extending from the city of Cleveland, Ohio, easterly through Bedford Township, Cuyahoga county, Ohio, to the city of Pittsburgh, Pa. The second is a lessee of this line of road from the first, and is the sole operator of the said line of railroad.
   The defendant, Frank B. Ward, is the owner of certain land in Bedford township through which said railroad line as originally constructed in or about the year 1850 passed, and over which the same was operated, continuously, up to about the month of May, 1904.

The Cleveland & Pittsburgh Railway Co. obtained its rights in the land, which is in dispute in this ease, from the predecessors in title of the said Frank B'. Ward. The greater part of said land was owned, at tire time of the original construction of the railroad, by J. W. Ward. Another parcel was owned by School District No. 7 of Bedford township, and still another by one Samuel Burchfield. Whatever rights said original owners would have had in the present action, had there been no change of ownership, are now in the defendant, Frank B. Ward, as the successor in title of said original owners.

From those several original owners, the Cleveland & Pittsburgh Railway Co. obtained its rights by instruments in writing, all of said instruments being substantially alike. Each recites the legislation by which the railroad company was authorized to construct its line of railroad, etc., and then in the writing of J. W. Ward these words follow:

“Now, therefore, in consideration of the benefit to accrue to my property by the construction of said road, and especially for $180 to be paid by said company on entering the land for the construction of said railroad, I hereby agree to grant to said company the right of way for said road through and over the lairds belonging to me, and particularly to the following described land lying in the township of Bedford in the County of Cuyahoga, being part of lots numbers 76 and 77 as now staked and located, it being understood and agreed that the said Ward is to make and construct his wagon way and crossing according to the directions of the company’s engineer, at his own expense. The said right of way, however, not to exceed 66 feet in width; to be held by said company, its successors and assigns forever, but for the purpose only of running a railroad over the same, and for purposes convenient thereto. And I agree that the said company may forthwith enter upon the possession of the land and take the materials hereby granted, and that I will execute according to law any deeds or other instruments in writing for the full and perfect conveyance of the rights hereby granted on reasonable request by said company.
“Bedford, October 30th, 3849.
“(Signed) J. W. Ward,
“Received the consideration mentioned in the within. $180 October 13th, 1849.
“(Signed) J. W. Ward.”

Without quoting from the other writings, they are in effect the same, differing in the consideration, and the description of the land, and in no other material particular.

Later in this opinion these instruments are spoken of as grants, under authority of Railroad Co. v. Ruggles, 7 O. S., 1, Judge Brinkerhoff, in the opinion at ’page 7, speaking of a similar writing, says it is to be treated as if it were a formally executed legal conveyance.

Some time prior to the year 1900 the Cleveland & Pittsburgh Railway Co. decided to construct a new line of road between the village of Bedford and a point something like two miles southerly or southeasterly from said village, between which two points the line as originally constructed and as operated up to the month of May, 1904, was over and upon the land described in said several instruments of writing, hereinbefore referred to.

In furtherance of said purpose to construct such new line, the board of directors of the Cleveland & Pittsburgh Railway Co. took action on the 15th day of March, 1901, as appears by the minutes of the proceedings of said board in these words:

“Resolved: By the board of directors of the Cleveland & Pittsburgh Railroad Company, that, for the purpose of avoiding annoyance to public travel and difficult and dangerous curves and grades in its railroad, and to facilitate the movement of the greatly increased traffic, and to enable this company to more efficiently and satisfactorily perform its duty to the public as a common 'carrier of freight and passengers, it is necessary to change the location and grade of its railroad from a point at or near Wheelock Summit, Cuyahoga county, Ohio, to a point in the village of Bedford, Cuyahoga county, Ohio, for a distance of about 40,000 feet without, however, departing from the general route prescribed in its Articles of Incorporation.
“Fnri\er Resolved: That for the purpose aforesaid, the location of this company’s railroad be changed between the points above stated from its old location to the new location, as shown on the map presented to this board, marked ‘No. 7902,’ which said new location shown upon said map is hereby adopted as and for the location of this railroad between said points, the same being more particularly described as follows, to-wit:
“Diverging from the old location of the Cleveland & Pittsburgh Railroad Company at a point near the Wheelock Summit by a 50 degree curve to the left.”

Then follows a particular description of the proposed new line.

The new line so decided upon was constructed by the Cleveland & Pittsburgh Railway Co.,, and trains began running thereon in May, 1904.

Within a few months thereafter the rails and ties were removed from the old line, leaving along said line, or on a considerable part thereof, fills and embankments which consisted of gravel, earth, stone, cinders, etc., used in construction of the old road bed.

The defendant Ward, claiming to own the unused right-of-way, was, at the bringing of this action, removing from such old road-bed such material, and the other defendants, the township trustees, were also removing such material from said old bed, claiming their right so to do by consent given to them by said defendant Ward.

This action was brought on the 20th day of November, 1907, seeking to enjoin the defendants from removing such material and from in any manner interfering with said road-bed or its material, or any part thereof.

From the instruments under which the railroad company acquired its rights in the land in controversy, whenever it abandons the same for railroad purposes, it loses all right therein.

The language of Ward’s grant is:

“To be held by said company, its successors and assigns forever, but for the purpose only of running a railroad over the same, and for purposes convenient thereto.”

The language of the school board grant is:

“To have and to hold the above granted and bargained land in the said company or its assigns and successors forever, for the purpose of running as many sets of track over the same as said company at any time may deem necessary, and also for any other purposes necessary, useful or convenient in the location, construction and repair of said road, and all work whatsoever, which may be necessary, useful or convenient -for the use of said railroad, and for no other purpose.”

The language of the Burchfield grant is:

“ To be held by the said company, its assigns or successors, forever, for the purpose only of running a railroad over the same land for purposes convenient thereto. ’ ’

It has already been said in this opinion that the effect of each of these grants is the same. Each authorizes the railroad company to use the land for any legitimate purpose, for the successful operation of a railroad.

Although the company, as already said, removed its ties and rails from this land in 1904, it does not necessarily follow that it thereby abandoned the same for all purposes connected with the operation of its railroad.

It is shown that the company has crossed the right-of-way, claimed by the defendants to have been abandoned, with three switch tracks to reach an extensive manufacturing plant, and that, within a few weeks it has laid ties and rails along the old right-of-way for a distance of 1,400 feet or more, and connected the same by a switch with the present through line, using this track so laid for cars to get them out of the way of trains on the main line. It has done some fencing in and some mowing of weeds and grass on this land; not very much, as indicating the use to which it proposed to devote the land, but it is shown that it is feasible to connect by proper switches, the tracks of the present operating line with tracks on the old line if they should be laid thereon, and that such old line might be useful and valuable for the running of freight trains and for storing of ears, and perhaps for other purposes.

On the part of the defendants it is urged that the resolutions of the board of directors of the railroad company passed on the 15th of March, 1901, from which quotations are made earlier in this opinion, and the construction of the new line in accordance with such resolutions, established the claim of the defendants that the company thereby abandoned its old right-of-way.

This action of the board was taken under authority of Section 3277, Revised Statutes, and 8753, General Code, then and now in force which read:

“For the purpose of avoiding annoyance to public travel, or dangerous or difficult curves or grades or unsafe or unsubstantial grounds or foundations, or when the road bed has been injured or destroyed by the current of any river, water-course or other unavoidable cause, or for other reasonable cause, a company may change the location or grade of any portion of its road, whether heretofore made or hereafter to be made, but shall not depart from the general route prescribed in the articles of incorporation.”

Certainly it does not follow from the action of the board or the authority given by the statute, that the company undertakes to devote the land covered by the old track to some purpose other than that of a railroad.

Section 8755, General Code, provides:

“When the location is changed, after the road has been used for transportation of persons and property, the company shall be liable for all damages occasioned by the change, to the owner of the land upon which the road was first constructed. ’ ’

Reading this in connection with Section 8753, General Code, it is urged on behalf of the defendants that the statutes contemplate that the change of location provided for in the former of these sections, necessarily results in the complete abandonment of the right-of-way. This contention does not seem to be sound. The change may or may not cause damage to the land owner, and there might be damage to him by making a change of location so that the right-of-way through his land was used for storing cars only; but it would hardly be claimed that even if he were damaged by the change in the use last suggested, the railroad company, had abandoned the use of the land for railroad purposes.

The first case to which .our attention is called by the defendant is that of Columbus v. Railroad Company, 37 Ind., 294. In that case it was held that the changing of the line of a railroad which ran through the city of Columbus so that the trains ran on a new line outside the city, leaving the tracks still down in the city, but so disconnected with the new line by the taking up of a part of its track that trains could not run through on it, but so that it could be used as a switch, was not an abandonment of the old line.

Another case cited on the part of the defendants is Railroad Co. v. Mecartney, 104 Cal., 616. This was a suit by the railroad company to quiet its title to a strip of land 121/2 miles long; the width is not given, but it plainly appears that the strip was a right-of-way for the tracks of the railroad company. The defendant claimed title through a tax sale, and in discussing the validity of the sale the court said, incidentally, that:

“The right-of-way is in the nature of an easement, and is acquired only for the purpose of the railroad. When the road is abandoned or removed from the strip of land over which the railroad has a right-of-way, the land is discharged of the burden. The right-of-way no longer exists.”

,This was said, not because there had been any removal of the road here from the right-of-way, but as illustrating that application of the taxing laws of the state.

In Railroad Co. v. Frowein, 163 Mo., 1, land was conveyed to a railroad company on condition that it would operate a railroad with passenger and freight trains over the land, which was adjacent to a river where the grantor'had a ferry, and would send all its passengers and freight across the river by the grantor’s ferry. This it did for ten years, then built a bridge across the river and so took the traffic from the grantor; then with the consent of the railroad company, the grantor leased the land to a lumber company. The railroad company sold its buildings on the land to the lumber company, which used the premises for its business until the expiration of the lease, when the grantor purchased the buildings from the lumber company and leased them to various tenants. It was held that the railroad company could not maintain ejectment, and that under the peculiar facts of that case, the railroad company had forfeited its title, although it had not 'absolutely abandoned the use of all the land.

Another ease cited is Railroad Co. v. Rich, 91 Mich., 293. In that case there was no question such as in the case under consideration. It was a suit brought to obtain an order of court to abandon a railroad constructed in part by local subscription, and to repay the petitioners the money put in by them for the construction of the road. The suit was brought under a statute of the state; the question was whether the railroad company had so far fallen short of its obligations as to justify the order prayed for. The trial court held that it had not. This was reversed by the Supreme Court.

We have been embarrassed in this case by being unable to find some of the authorities on which defendants rely, there being some mistake in the citations made in the brief, but so far as we have found the authorities they fail, as we think, to sustain the claim of the defendants on the question of abandonment.

It is contended by the defendant that the railroad company is undertaking to use the lands in question for anything other than railroad purposes, but that it has ceased to use them for any purpose, and that this constitutes an abandonment in such wise that the company’s rights in the land are forfeited.

In Conabeer v. Railroad Co., 156 N. Y., 474, it is said :

“Where one acquires title by deed it will not be affected by nonuser, unless there is a loss of title in some of the ways recognized bylaw, since mere nonuser, however long continued, does not create an abandonment.”

The question of abandonment of the rights of one in lands granted to him or it for specified purposes only is said, in numerous eases in Ohio and elsewhere, to be eminently one of intention. See Garlick v. Railway Co., 67 Ohio State, 223; Nail & Iron Co. v. Furnace Co., 46 Ohio State, 544; Hatch v. Railway Co., 18 O. S., 92; Townsend v. Railway Co., 101 Federal, 737; Peter v. Caswell, 38 O. S., 518.

In this last mentioned ease a mill race had been dug by a mill owner in such a way as to cause the water of a stream to flow in such race and not in its natural channel, for a considerable distance, where it turned the wheel of the mill, returning below the mill to its natural channel. The flood-gate was, however, maintained at a point where the current left the natural channel, so that whenever repairs were required to be made on the mill, the water could be cut off from the race and returned to the channel.

For more than twenty-one years the water was carried through this mill race, and only occasionally and temporarily turned into the natural channel for the purpose of making repairs on the mill. The channel had so long been disused that it became obstructed and partially filled, so that it was not sufficient to carry off all the water which had originally passed through it.

It was held that nothing in this condition of things or the acts of the parties showed that the use of the ancient channel had been permanently abandoned.

In the case of Garlick v. Railway Co., supra, the court in its opinion cites a large number of authorities on the question of what constitutes abandonment, and the court quotes with approval, from Washburn’s Easements and Servitude, the following language:

“It is not easy to define in all eases what would be such act of abandonment as would destroy a right of easement, and each case seems to be a matter for a jury to determine. But .nothing short of an intention to so abandon the right would operate to that effect, unless other persons had been led by such acts to treat the servient estate as if free of the servitude, and the same could not be resumed without doing injury to their rights in respect to the same. And in this it is not intended to embrace questions which may arise from a mere nonuser of an easement. ’ ’

The facts in this case do not seem to warrant the conclusion that the railroad company ever intended to abandon the right-of-way on which the railroad was originally constructed. At most, it can only be claimed for the defendants that there was a nonuser of this right-of-way for a period of about three years, for the rails and ties were removed in 1904 and in 1907 when the defendants assumed the right to remove and began to remove the materials of which the old road-bed was constructed, this action to enjoin such removal was begun.

True, during the period from the removal of the ties and rails to the bringing of this action, the railroad company did very little upon this right-of-way to indicate ownership. However, there was some cutting of weeds and grass, as already said, and it can hardly be supposed that the railroad company, if it was its intention to abandon this right-of-way, would have done anything upon the ground.

The land in dispute in this right-of-way is near to a great city, and passes through a manufacturing district in the village of Bedford, where it hardly seems probable that the railroad company would expect to abandon lands which they had a right to use for railroad purposes. Such lands would seem to be exceedingly valuable for a right-of-way, even though the main line of the road had been diverted from this old right-of-way to a distance in some places of several hundred feet, and even though such old right-of-way crosses Tinkers Creek and two or more public roads in suchwise that the building of a track along the entire old right-of-way that would connect with the tracks as now operated on the hew right-of-way, would be attended with considerable expense. But when we remember the expenditures which railroad companies make to cross streams and to pass through obstructions, such as great hills and even mountains, the matter of expense does not loom up as a preventive, as it does in those smaller enterprises where but a few hundred thousand dollars are invested.

We reach the conclusion, therefore, that the plaintiff is entitled to the injunction prayed for, and the same is allowed.


text:
    AS TO APPLICATION OF THE DOCTRINE OF LAST CHANCE.
    Circuit Court of Cuyahoga County.
    John Bejac v. The Cleveland, Painesville & Eastern Railway Company.
    Decided, October 28, 1912.

      Negligence — When Doctrine of “Last Chance” Does Not Apply.

    The doctrine of last chance has no application in cases where the negligence of both plaintiff and defendant are concurrent and directly contributing to produce the accident, but only in cases where the negligence of the defendant is proximate and that of the plaintiff remote.

      Pattison & Austin, for plaintiff in error.
    Kline, Tolles & Morley, contra.
    Winch' J.; Marvin, J., and Niman, J., concur.
    The plaintiff in error was injured while crossing in front of an approaching car of the defendant company. His case was submitted to a jury, which brought in a verdict for the defendant under a charge which eliminated from the consideration of the jury any application of the doctrine of last clear chance.
   For the purpose of testing the correctness of the judgment on this verdict, it may be conceded that the company was negligent in operating its car at too great a speed and in not sounding a gong or giving other warning of the approach of the ear, or was otherwise negligent. But the plaintiff was negligent, also, He carelessly put himself in a place of danger. If he looked and did not see the approaching car, as he testified, his senses must have been befuddled by the beer he had just drunk. There was an unobstructed view in the direction from which the car was coming, of over 800 feet. ' It was a clear day about noon. The motorman saw the plaintiff and his companion when they left the saloon and started to cross the street .and the tracks, when he was about 350 feet away. He had a right to believe that the men would look and see the ear, as he saw them, and no step upon the track immediately in front of the car, as they did.

Plaintiff must have been within fifteen to fifty feet of the car when he stepped upon the track. Ilis companion was ahead of him and barely jumped out of the way.

This contributory negligence on the part of the plaintiff in stepping in front of a rapidly approaching ear, which he should have seen, bars his recovery, because his negligence was contemporaneous with that of the motorman, and was a proximate cause of the injury.

In the case of Drown v. Traction Company, 76 O. S., 234, Judge Davis, after quoting from Thompson on Negligence to the effect that “Although a person comes upon the track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him, they are bound to do so.” goes on to say, on page 248 of the opinion:

“Now it must be apparent upon even a slight analysis of this rule, that it can be applied only in cases where the negligence of the defendant is proximate and that of the plaintiff remote; for if the plaintiff and the defendant both be negligent, and the negligence of both be concurrent and directly contributing to produce the accident, why then the case is one of contributory negligence pure and simple. But if the plaintiff’s negligence merely put him in a place of danger and stopped there, not actively continuing until the moment of the accident, and the defendant either knew of his danger, or by the exercise of such diligence as the law imposes on him would have known it, then, if the plaintiff’s negligence did not concurrently combine with defendant’s negligence to produce the injury, the defendant’s negligence is the proximate cause of the injury and that of the plaintiff is a remote cause. This is all there is of the so-called doctrine of the last clear chance.”

On authority of the Drown case, it would have been proper if the trial judge had directed a verdict for the defendant.

There is no error in the record prejudicial to plaintiff in error, and the judgment is affirmed.


text:
    FAILURE OF CONSIDERATION IN PURCHASE OF A PATENT.
    Circuit Court of Cuyahoga County.
    W. C. Sunderland v. Amos Barnes.
    Decided, November 11, 1912.

      Contracts — When Action to Recover Purchase Price for Patent Not Maintainable.

    Ihat a patent has no practical or beneficial use, is a defense to an action on a contract for the purchase price of such patent, as it amounts to a failure of consideration.

      Ammerman & Thompson, for plaintiff in error.

      Bentley, McCrystal, Biggs & Staiger, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   This was an action for money due on a contract for the purchase of a patent. The defendant admitted the execution of the contract, but set up three defenses to the action against him:

First. That the contract was incorrectly read to him before he signed it, and that its written terms were different from what he was thereby led to believe them 'to be.

A copy of the contract was delivered to him; he had it in his possession and read it some two months after its date, but never offered to return the patent and have the contract canceled on this account for some two years, meanwhile continuing to make payments as stipulated in the contract.

There was no merit in this defense.

Second. That he was induced to enter into the contract through fraud and misrepresentation as to the merits," salability and use that had been made of the patented article.

This defense, also, was unavailable, by reason of the defendant’s laches.

Third. That the patent had no practical or beneficial use: in other words, that there had been a total failure of consideration.

The law applicable to this defense is found in the cases of Daust v. Brockway, 11 Ohio, 462, and Tod v. Wick Brothers & Co., 36 O. S., 370, from which we gather that:

“If the patent is valid, any interest in it, without regard to the degree of its utility,- or its pecuniary value, constitutes a sufficient consideration for a promissory note” or other contract. Also: “If capable of being applied to some practical or beneficial use, and it is not frivolous or injurious to the well being or morals of society, it is a valid patent, although other similar machines may be of greater utility.”

The patent here involved was for a railway rail-joint. It had been regularly issued by the patent office, but the defendant introduced witnesses who testified that it had no practical or beneficial use.

Samuel Rockwell, chief engineer of the Lake Shore Railroad, on page 45 of the record, states, “ I do not consider it practical, ’ ’ and then he goes on to give his reasons for his opinion, which seem sensible and to sustain his opinion.

R. C. Newcomer, a division engineer of the Pennsylvania Company, located at Cleveland, was a witness for the defendant, and testified, on page 59 of the record, as follows:

‘ ‘ Q. Will you state in your opinion whether these two wedges at the bottom in there are of any beneficial use? A. I would say from the model, no, and from the full sized bar to look at it, more so.
“Q. I call your attention now to an 85 or 95 pound joint. Will you state whether the wedges in this full sized joint add any beneficial use to a rail splice or rail joint? A. No, sir, they do not.”

The patent was for a combination, the wedges referred to being the only new thing in the combination, not found in other rail joints in use.

Cross-examination of these two witnesses tended to show that other rail joints were in use containing a less or greater number of parts, or the same number of parts, some of them differing substantially from the parts of the patent here involved, but these witnesses did not depart from their opinions that this rail joint had no practical or beneficial use; indeed they seemed to have the impression that the wedge referred to was a bad thing and made this rail joint an improper one to use.

With this evidence before the jury, the trial judge directed a verdict for the plaintiff.

In this we think he erred; the evidence of the witnesses referred to tended to show that the patent was valueless, not merely that it was of less utility than other devices on the market. If valueless, the defendant was under no necessity of tendering it back, before making this defense.

The plaintiff should have been required to meet the evidence of the witnesses Rockwell and Newcomer, with some testimony that the patent had some practical and beneficial use, for their evidence needed contradiction before it could be said that defendant had failed to establish their defense.

For error in directing a verdict for the plaintiff below, the judgment is reversed and the cause remanded for further proceedings.