text:
    INJURY OCCURRING A FEW MINUTES AFTER. EMPLOYMENT.
    Circuit Court of Cuyahoga County.
    Louis J. Dominick v. The Stowe-Fuller Company.

    Decided, February 3. 1908.

      Negligence.

    Jt is not negligence on the part of an employer to pile sacks of cement in two stable piles and fill in the space between the two piles with other sacks not so securely piled, and an employee who aids in removing the sacks from one of the retaining piles and thus allows the other sacks to fall upon him has no cause of action.

      Kerruish .<& Kerruish and Semis & Calf ee, for plaintiff in error.

      Henry & Cause and George S. Kain, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.

       Affirmed without opinion, Dominick v. Stowe-Fuller Co., 83 Ohio State, 464.

   The parties stand in the same relation to each other here as they stood in the court below. The plaintiff was employed by the defendant, which is-a corporation, in its place of business in this city. He commenced work on the 16th of May. 1901. He had been working but a few minutes when he was injured, and because of tbe injuries he then received he brought suit. lie seems to have arranged with the defendant beforehand that he would begin work for them on the day named. On that morning he went to their place of business; he found the foreman or man in charge at the office end of the building and made the inquiry which was made by one in the first century of our era, as we find it recorded in Holy Writ: “What would’st thou have me to do ? ” He was told in answer to this, to go out into the building and there where there was a large number of sacks of cement piled, he should assist the men already there in removing these sacks from the piles and place them in wagons to be hauled away. He reached the place where the sacks were piled a few minutes before the time to begin work; at the proper time he, and two other men who were engaged in the same work, commenced to remove the sacks and put them upon the wagon. The plaintiff had taken two sacks from the pile and placed them on the wagon, and as he was stooping down to pick up the third some sacks in a pile adjacent to the pile at which he was at work fell upon him and injured him, to recover damages for which he brought suit, alleging that the defendant was guilty of negligence which was the direct cause of his injuries; he says that he was in no wise negligent. The defendant answers admitting that it is a corporation, that the plaintiff was in its employ, that he was injured, but denies all negligence on its part and avers negligence on the part of the plaintiff directly contributing to the injury. Plaintiff says the negligence of the defendant consisted in the fact that the pile of sacks was so carelessly and imperfectly 'constructed, with a view to safety, that said fall was unavoidable, and that said pile was so as aforesaid carelessly constructed under the direction of the defendant’s agents, and by its servants, that the officers of said defendant had knowledge of its unsafe and dangerous construction, or ought to have had knowledge thereof.

At the close of the plaintiff’s evidence, the court directed a verdict for the defendant, by reason of which the plaintiff says that error has been committed to his prejudice. The bill of exceptions is therefore before us containing all the proceedings in the court below. From this we learn that in the conduct of the business of the defendant, it had caused two large piles of sacks of cement, each of which weighed about 100 pounds, to be put up, the two piles parallel to each other, and consisting of layers of sacks, the alternate layers being at right angles with each other; that is to say, sacks sufficient for the lower layer of the pile were laid down side by side, the next layer consisting of sacks laid side by side at right angles with those of the first layer and so on alternately until the piles were about six feet high. These sacks were about three feet long, about a foot wide, and were to some degree flattened on the top and bottom by laying probably in the position in which they were piled; they were six or eight inches through from top to bottom as they lay upon the piles.

These two piles were about two feet apart, that is, there was originally a vacant space of about two feet wide between the two piles which have been described. After these had been completed the defendant caused another pile of sacks to he laid in between those two piles. In this last pile spoken of the sacks were all laid in one direction, that is to say, the sacks on the second layer were parallel with the sacks on the first layer, and so on on all the way up, this pile being as high as the other two piles. Before the plaintiff went to work a part of the sacks on one of the original piles had been removed, leaving the third pile still standing to its full height. The plaintiff and the other two men went to work taking sacks from this original pile from which sacks had already been taken, and as has already been said, when the plaintiff bent over to pick up his third sack, the sacks on the pile which was laid- between the two original piles fell over upon him and hurt him. We are unable to concur in the claim on the part of the plaintiff that there was negligence on the part of the defendant in piling the sacks of the third pile, because so long as the two original piles stood the third pile was safe from falling; nor can we understand that it was negligent on the part of the defendant to have these piles removed. Tt is said, however, that it was negligent to remove one of the original piles, leaving the sacks in the third piLe unsupported. If that is so, it would seem to be rather the negligence of those who were removing the sacks than of the defendant. It does not appear that the plaintiff was ordered to remove the sacks from this intermediate pile. He went out to where the work was; it was seven o’clock in the morning in May and it was light enough for him to see the situation without difficulty, if he made any effort to see. -Pie commenced work where the other men were working, and it is said that he had no knowledge that this third pile, a part of which fell over upon him, was piled differently from the pile from which he was taking sacks, but the pile was there in his plain sight. If, by reason of being piled as it was, it was dangerous, the slightest examination or glance indeed would have shown the different manner in which the sacks .were piled and would have suggested to a cautious man that the better thing to do would be to take sacks from the pile rather than from the other. So far as appears, the only direction to the plaintiff was to help the other employees remove the sacks and put them in the wagon. Doubtless it would have been the wiser thing to take the sacks from the third or.intermediate pile before taking down so many from this supporting pile, so to speak, rather than to leave a considerable height of the third pile unsupported as appears to have been done in this ease. So far as it appears the workmen had their choice about this. They saw fit to do as they did. We discover no negligence on the part of the defendant in this respect. The plaintiff testifies that he was accustomed to pile sacks of a similar kind in a nearby place of business; but even if he had not been, it would seem that a novice knowing something of the laws of gravitation would have realized that that third pile of sacks might fall if the sacks at its side were taken away.

We are not prepared to say that there was necessarily negligence on the part of the plaintiff, but we feel that there was no negligence on the part of the defendant, and that being .so there was no error on the part of the court in directing a verdict for the defendant.

It is urged further on the part of the plaintiff that the court, erred in refusing its offer to pile in the eoiirt room sacks of this cement like those which were being handled by the plaintiff at the time of the accident and pile them in the wfay in which they were piled in the third pile. This the court declined to do. Viewing the case as we do, no prejudice came to the plaintiff by this refusal of the court, for a description of the way in which the sacks were piled must have given them a clear idea of the situation, and if the piling of the sacks would have tended to show^ by looking at them that they were likely to fall, then the plaintiff having an opportunity to Iodic at them at the time he was engaged in the wrork, himself knew of their liability to fall as well as the jury could know by seeing them piled up in the same vray. We find no error, therefore, in the action of the court in refusing to allow the sacks to be piled in the court room as requested by the plaintiff and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    DETERMINATION AS TO CAUSE OF DEATH.
    Court of Appeals for Brown County.
    Sarah E. Armstrong v. The Travelers Insurance Co.
    Decided, December, 1914.

      Accident Insurance — Ascertainment. of Cause of Death of Insured— Autopsy Incompetent as Substantive Evidence — Rule as to Bur-of Proof in Accident Insurance Different from that in Other Classes of Insurance — Application of the Three-fourths Jury Law — Charge of Court.

    1. The, right to sue in the instant case did not accrue until three months after submission of proofs of death, which was subsequent to the going into effect of the act providing for the return of a verdict by three-fourths of the members of- the jury, and the provisions of that act were therefore applicable to the case.
    2. An autopsy paper, signed by the physicians making the post mortem examination, is not admissible as substantive evidence, where the signatories had not been placed under oath and the privilege oí cross-examination was not accorded; but such a paper may be used for the purpose of refreshing the memory of witnesses.
    3. In an action involving the cause of death of one who fell into the Ohio river in February, it is error to refuse to give special charges because of the assumption incorporated into them that the water was cold, if there was some evidence tending to prove that fact.
    4. Under the policy in suit, where the only issue is as to whether the death of the insured resulted from external, violent or accidental means, the burden is upon the plaintiff to show affirmatively that it was from one of the causes specified; and the fact that the defense alleges that death resulted from disease does not affect the rule as to the burden of proof.
    5. A judgment will not be reversed for technical errors, where it clearly appears from the evidence that the jury could have reached no other conclusion than the one incorporated in their verdict.

      E. R. Roetting&r, Chambers Baird and E. R.' Young, for plaintiff in error.

      G. D. Robertson and J. W. Bagby, contra.
    Error to tbe Oo'urt of Common Pleas of Brown County.-

      Suit was brought in the Court of Common Pleas' of Brown County upon a policy of insurance issued to one William II. Armstrong and payable, in the event of his death, to his wife, Sarah E. Armstrong, the plaintiff in the action.
   The petition alleges that, for the consideration of $7.50 as a premium, the Travelers Insurance Company issued to said Armstrong its policy of insurance for the period of six months, and promised to pay the principal sum of said policy to his surviving wife in case the said William H. Armstrong should come to his death by external, violent and accidental means.

The petition alleges that, during the life of the policy, on the 27th day of February, 1913, the insured “came to his death” by external, violent and accidental means, to-wit: by drowning; that prior to the time of his death he had fully performed all of the conditions of said policy on his part to be performed; that on the 27th day of February, 1913, she notified the company of his death, and later, to-wit, on the 18th day of March, 1913, she filed with the company formal proofs of death.

The policy of insurance is attached to the petition, and judgment is asked against the defendant company for the principal sum claimed to be due, with interest from the date of filing the proofs of death.

The defendant answered, denying that William II. Armstrong came to his death by external, violent and accidental means, to-wit, by drowning, and specifically alleges that the cause of death was not within the scope of the insurance contract; that said contract provided for indemnity only from injuries resulting from external, violent and accidental means'; and further pleading the provision of the policy which provides:

“This insurance shall not cover * * * death * * * resulting wholly or partly, directly or indirectly, from * * * disease in any form, either as cause or effect.”

That, in fact, the death of William H. Armstrong was caused by a disease, or diseases, either wholly or partly, .directly-or indirectly, and speeificálly naming the diseases _ which were alleged-to.be. the. eause, or causes, of his'death,

The reply denied that the death of Armstrong was caused by the disease, or diseases, named in .the answer or that such diseases contributed to the death of the deceased.

Jones (Thomas A.), J.; Walters, J., and Sayre, J.,

concur.

The jury returned a verdict, on the issues joined, in favor of the defendant. This verdict was signed and concurred in by eleven of the twelve jurors.

The court, in its general charge to the jury, had said that a verdict might be returned by three-fourths of the members of the jury, or more.

The contention is now made by the plaintiff in error that this action of the court was erroneous; that the amended jury law did not apply to the case at bar and the verdict should have been unanimous.

The act (103 O. L., 11) providing for a verdict .upon the concurrence of three-fourths, or more, of the jury was passed Febuary 6, 1913, approved by the Governor, February 12, 1913, and became effective as a law on May 14, 1913.

This amending act did not expressly provide that existing causes of action should be affected thereby.

Section 26, General Code, provides:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment .or repeal, unless othenvise expressly, provided in the amending or repealing act.”

This action was not begun until. September 15,.1913, and w.as therefore not a pending: action when the act became, effective. ' '

The contention of plaintiff below is, that she had an' existing cause of action' which did- not -become amenable to Section1 26, ■General- Code, because of the-fact that" it'arose and'accrued'to her-prior to the-time-when thé'act'-bec'ame effective.' The'.contention of her counsel is, that since Armstrong died on the 27th day of February, 1913, an existing cause of action accrued to plaintiff below, upon the policy, immediately upon the death of her husband.

While the death of Armstrong occurred February 27, 1913, there was a provision in the contract of insurance providing that no legal proceedings, for recovery under the policy, should be brought within three months after the receipt of the proofs of death.

Since the proofs of death were not made until March 18, 1913, a right of action, upon the policy, did not accrue to plaintiff until three months thereafter or until June 18, 1913. She had no existing cause of action until that time.

A cause of action does not accrue until a breach of the contract is made and a right to sue thereupon exists.

This definition of “cause of action” is discussed by Davis, J., in Railroad Co. v. Hollenberger, 76 O. S., 177-182.

The case decided by Kinkead, J., Trust Co. v. Coal Co., 16 N.P.(N.S.), 273, is consistent with this view, as the right to sue in that case did not accrue until the notes became due, which was in March and April, 1913, and before the act became effective.

In this case, under the contract of insurance, the right to sue, or the cause of action, did not accrue to the plaintiff below until three months after the submission of proofs of death.

II. The facts in this record disclose that the deceased, William H1. Armstrong, about eight o’clock on the morning of his death, went aboard a ferry-boat at Eipley, 0., for the purpose of crossing to the Kentucky side. Just before the ferry-boat reached the Kentucky side the last seen of the decedent was when he was in the ladies’ cabin of the boat and about to enter the toilet room connected therewith. He had started from home in apparently good health. No eye-witness saw the accident, if accident there was, but it appears from the evidence that from three to five minutes after the ferry-boat had cast off from the Kentucky shore Armstrong was seen in the water, floating with his face submerged in the water but with his head and shoulders un'shrmerged. The captain of the boat went to his shedor and brought him aboard the boat, where an attempt was made to resuscitate him, without avail. The boat immediately crossed over to the Ohio side, where physicians were summoned to attend him. On the afternoon of that day he was embalmed, and later buried. Seventeen days later, upon initiative of the defendant below, the body was exhumed for the purpose of post mortem examination. An autopsy was held in the presence of eight physicians and four laymen, each of whom signed the findings made by the autopsy.

Upon the trial of the case all of the physicians who were present and signed the autopsy, except one, testified; and two of the laymen who were present and signed the autopsy also testified in the case. One Doctor Carothers and two laymen, viz., B. E. Waite and J. E. Morehead, were not witnesses at the trial.

Doctor Foertmeyer, the physician who presided over the autopsy, was called by defendant as a witness. In his examination in chief he was asked in detail as to the examination he made of the vital organs, refreshed his recollection by the use of the autopsy paper, and in connection with his examination in chief counsel for defendant offered and the court permitted the autopsy paper to be admitted in evidence.

In the opinion of this court, the action of the court below in this regard was erroneous. The autopsy should not have been admitted as substantive evidence in the case. It purported to have been signed by at least three persons who were not present as witnesses at the trial, and therefore the plaintiff below was denied the privilege of cross-examination of these men, under oath.

It has been held that a post mortem examination made by a coroner is a semi-judicial proceeding and can not be used as substantive evidence to prove the cause of death. It would seem to us that it would be a greater abuse of the rule of evidence to admit a paper of this character to be introduced as substantive' evidence, where the signatories to the paper had not been placed under oath at the time and the privilege of cross-examination, as in this case, denied the plaintiff.

While we adhere to this as the proper rule of evidence, in view of the .record made in this case, we are not. inclined to hold that the action of the court was so prejudicial as to require a reversal.

This autopsy was made for the purpose of obtaining the expert knowledge and opinion of the physicians present. So far as the laymen were concerned, it would have been of little value. Of the physicians who were present and signed the autopsy all testified except one, Doctor Carothers. The autopsy paper had been used, throughout the case, in connection with the evidence of the expert witnesses, to show the physical condition of the deceased and to ascertain the cause of his death. Every one of the seven physicians went into a detailed explanation of the autopsy, and testified in detail as to the matters contained in the paper.

It would seem to us that, under this state of facts, there could be no serious prejudice to the plaintiff below in allowing the autopsy to be introduced as evidence in the case.

The claim of counsel for defendant is, that it was only used in connection with the examination of Doctor Foertmeyer, and-that it was proper for the court to admit the paper, in view of that fact and in the further view that the matters contained therein had been generously testified to by other witn'esses.

While the paper could be used 'in that connection and for the purpose of refreshing the memory of the witnesses, we do not think tha.t it should have been admitted as substantive evidence, as the court permitted in this case.

III. It appears from the record that before argument of counsel the plaintiff below requested special charges No. 2, 5 and 7 be given to the jury.

This request was refused by the court, and such refusal is assigned as error in this court.

It is said by counsel in this case that the court refused to give these three special charges because of the fact that an assumption had been incorporated into each of the charges that the water was ‘ ‘ cold water. ’ ’

We are unable to agree with counsel for defendant in error that the charges should have been refused upon that ground. The only evidence in the case, in connection with that subject, is that of Captain Robert Corbin, the owner of the ferry-boat. He testified that the water was cold, and there is no contradiction of that fact in the entire testimony. In addition to that, it may be held to be a matter of common knowledge that in the month of February the water of the Ohio river would be cold.

. While we hold the refusal to give these special charges was technically erroneous, again we say that, in view of the entire evidence disclosed by this record, we do not feel inclined to reverse the judgment because of this refusal, for reasons that will appear later in this opinion.

IV. The court also refused to give plaintiff’s special charge No. 4, requested before argument. That charge is as follows:

“The defendant, by its answer, denies that Mr. Armstrong' died as alleged in the petition, and the answer alleges further that the death of Mr. Armstrong was due to certain diseases which are specified in the answer.
“The burden of proof is upon the defendant to show, by a preponderance of the evidence, that the death of Mr. Armstrong was caused by the diseases so specified, or any one of them.”

In the general charge the court placed the burden of proof upon the plaintiff to prove, by a preponderance of the evidence, that William IT. Armstrong came to his death' through external, violent and accidental means; and in the general charge the court also placed the burden of proof upon the defendant to prove, by a preponderance of the evidence, that the death of said Armstrong was caused by, or resulted wholly or partly from disease, or diseases, with which he was afflicted.

It is a little difficult to understand why the coui’t placed the burden upon the defendant to show that death resulted from disease, in his general charge, and refused to do this before argument, when requested by plaintiff in said special charge. However that may be, we are of the opinion that the law as to the burden of proof, given to the jury by the court in the general charge and which was asked by the plaintiff in the special charge, was erroneous.

The only issue in this case was: What was the cause of death ? It was incumbent upon the plaintiff to show, before she was entitled to recover, that the deceased, William H. Armstrong, came to his death through external, violent and accidental means. No recovery could be had under.the policy unless that showing was made. The petition alleged that fact as a predicate for recovery. This was denied by the answer. In our judgment, the defendant below could have met that issue, under a general denial, by showing that the death resulted from any cause other than external, violent or accidental means.

If the defendant below, in the introduction of its evidence, had produced sufficient proof to countervail the ease made by the plaintiff upon that- point,- plaintiff would fail. It was not necessary for the defendant to show, by a preponderance of the evidence, that death resulted from one of the diseases specified in the answer. It was sufficient to show, in order to meet the ease made in the petition, such proof of facts and circumstances as would break down or countervail the case made by plaintiff.

The proper rule of law is laid down in the third proposition of the syllabus in Klunk v. Railway Co., 74 O. S., 125:

“The rule is that he who affirms must prove, and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party affirming must fail.”

To the same effect is Dykeman v. Johnson, 83 O. S., 126.

Counsel for plaintiff in error have cited authorities opposed to this view: Casualty Co. v. Bird, 18 C. C., 488.

In the foregoing case we are unable to agree with the conclusion reached by that court. They seem to have applied the rule of burden of proof which exists in actions brought upon an ordinary life or fire insurance policy to actions based upon accident policies, such as we have here.

We are able to see quite a distinction between those eases and the one at bar. In actions based upon ordinary life policies when the death of the insured has been proven, recovery can only be avoided by the defendant taking upon itself the burden of showing, by way of an affirmative defense, that the death resulted from one of the exceptions named in the policy. In those cases where fraud, misrepresentation or breach of warranty has been pleaded in order to avoid the policy, the burden, of course, is east upon the defendant.

The sole issue in this ease was as to what was the cause of death. The plaintiff! was required to prove affirmatively that death resulted through external, violent ánd accidental means.

The case of Hanner, Admr., v. Aetna Life Insurance Co., 49 Bull., 140, has been -cited to us as holding an opposite view. That ease was later affirmed by the Supreme Court. It will be observed that this suit was brought upon a life insurance policy. Plaintiff in that case, upon showing the death of the insured, could have rested his ease. He was not required to prove, under the policy, that the cause of death resulted from external, violent and accidental means.

It was not so here.' It was incumbent, in the case at bar, to show not only the death of the insured, but to show affirmatively that the death resulted through external, violent and accidental means.

That this is the proper rule as. to the burden of proof is held by the Supreme Court of Illinois in Casualty Company v. Weise, 55 N. E., 541. That case holds that, in a policy such as this, suicide may be shown under the general issue, and the burden remains upon the plaintiff to show that death resulted from external causes.

V. Other criticisms of the general charge have been made in the brief of counsel for plaintiff in error.

It is insisted, among other things, that the trial court should have defined “disease” in its charge to the jury.

It is sufficient to say, in answer to that contention, that no request was made by ‘counsel for such definition. Besides, the jury found by the special interrogatories that William Ii. Armstrong’s heart, liver and kidneys were in a diseased condition at the time of his death. In addition to this, it may be said that there is no contradiction of the testimony. given by the seven expert witnesses in this case, that these organs of the decedent were badly diseased at the time of his death.

While we have held in this opinion that the autopsy should not have been admitted by the trial court as substantive evidence, that special charges No. 2, 5 and 7 should have been given to the jury, and that the action of the trial court in this respect was technically erroneous, we are unable to come to the conclusion that this judgment should be reversed because of that fact.

We have read this entire record over very-carefully; and, in our judgment, the jury could have come to no other conclusion than it did. Seven of the physicians who performed the autopsy testified as witnesses in the case, and their testimony has not been contradicted by a single person. They made specific detailed examination of the vital organs of the insured and found them badly diseased, and in their official report, signed by them, found that the cause of his death was acute dilation of the heart, aortic stenosis, mitral insufficiency, coronary sclerosis, cirrhosis of the liver and chronic Bright’s disease. In addition to the report itself, six of these physicians, upon the witness stand, testified positively that not lonly were these physicial conditions found at the post mortem examination but that Armstrong came to his death, not by drowning, but as a result of these diseases.

Doctor Foertmeyer, one of the physicians, was from Cincinnati, Doctor Wilson, another physician, represented the Travelers Insurance Company and lived at Hartford, Connecticut; the other four physicians lived at Ripley, Ohio, the home of the insured. It is true that one of the Ripley physicians, the elder Tyler, attempted to escape the result of his action when present as a signer of the autopsy paper. But we attach more importance to the findings signed by him at that time than to the evidence given on the trial.

As has been stated, this testimony has not been contradicted by a single witness. The younger Doctor Tyler was upon the witness stand and testified to the fact that he saw the deceased immediately after he was taken from the boat and that his skin was in a synotic or bluish condition and that there was froth or mucous appearance at the region of the mouth, and that while he was on the embalming table water came from the larynx when the undertaker pressed the deceased’s chest. However, young .Doctor Tyler did not express an opinion that the cause of decedent’s death was drowning; he expressed no opinion upon this subject.

There was other testimony, showing that the insured had been a man of active habits, and that the jury might have found that death may not have resulted from disease. But against this we have the positive testimony of all these physicians who made the post mortem examination, and their positive and' direct statement that not only were these vital organs seriously affected, but that, in fact his death was not causeed by drowning but by the various diseases found at the autopsy.

To reverse this' case would require the throwing aside of all the expert testimony upon the subject. The autopsy was made apparently under such conditions and the testimony appears to be so fairly given by these witnesses, that we can do nothing else but give it effect. It has not been disputed anywhere in the record. It simply overwhelms the case made by the plaintiff.

Therefore, in our opinion, the jury could have found no other way than it did, in view of the evidence disclosed; and we feel that we could not certify that substantial justice has not been done in this case, under the provisions of Section 11364, G-. C., were we to reverse the judgment.

The judgment of the trial court will be affirmed.


text:
    NEGLIGENCE OF DRIVER OF HACK IMPUTED TO PASSENGER.
    Court of Appeals for Richland County.
    Lovina Odenbaugh v. Herman E. Homberger.
    Decided, February, 1915.

      Negligence — Collision Between Hack and Automobile — Opposing Theories as to Cause of Accident — -Finding of Jury as Between the Tioo Will Not be DisUirbed on Review, When — Negligence of Driver Imputed to Passenger — Contributory Negligence Established by Negative Evidence.

    1. An action founded upon injuries resulting from a collision between an automobile and a hack in which plaintiff was a passenger, the passenger asserting that the automobile ran into the hack, the owner of the automobile contending that the hack ran into the automobile, is based upon two diverse theories, neither obscure nor confusing, the determination of which is exclusively the function of a jury; and evidence having been offered, tending to support with considerable plausibiliity both theories, in the absence of clear perversion of duty by the jury, its adoption of either theory in finding a verdict will not be disturbed on review.
    2. Negligence of a hack driver is imputed to. a passenger where the latter had an unobstructed view and full opportunity to direct his course; hence, the hack driver having cut across a street from the right to the left side at an intersection, thereby colliding with ■ an automobile coming at right angles on the intersecting street and driven on the right side thereof and at proper speed, all of which was in full view and knowledge of his passenger, the negligence, if any, is imputed to the passenger.
    ¡5. The alternative issue of contributory negligence in an action for collision between a hack and automobile, both parties asserting the negligence of the other in causing the injuries, is established by negative evidence that the hack was driven on the wrong side at a street intersection in disobedience of a municipal ordinance and well known law of the road and in a manner not to be anticipated by the driver of the automobile on the right side of the road and operated at low speed; and an instruction upon such issue is not prejudicial to plaintiff.

      Brucker, Voegele & Henkel, for plaintiff in error.

      McBride & Wolfe, contra.
    Grant, J. (sitting by designation in the place of Voorhees, J.); Shields, J., and Powell, J., concur.
    This is a petition in error, the prayer of which is for the reversal of the judgment of the court of common pleas.
   Two principal grounds of error are assigned and argued why this should be done.

The first of these is that the judgment complained of is against the weight of the evidence in the ease.

The second is that the court below erred in the charge givén to the jury upon the question of contributory negligence, and in giving instructions upon that question at all.

The petition in the case'below alleged that the plaintiff suffered certain bodily injuries, caused proximately and directly, by the culpable negligence of the defendant. This alleged negligence took the form, it was said, of the automobile of the defendant, carelessly managed and driven, running into a hack in which the plaintiff was at the time being lawfully carried on the public streets of Mansfield.

The answer denied, generally, and further alleged as an alternative defense — all the while denying negligence on, his own part — that the plaintiff came to her injuries through and as the proximate result of her own- negligence contributing directly thereto.

Upon the latter charge issue was joined by reply and upon the whole issue thus made up, the cause was put to trial before a jury.

There was a verdict for the defendant, upon which the judgment attacked here was entered, a motion for a new trial having been denied.

All the testimony taken in the case, embodied in a bill of ex-’ ceptions, is brought before us on the record.

Tbe plaintiff had a theory of the case, and upon that theory the action on her part was tried. It was that the defendant ran into the hack in which she was riding.

The defendant had a theory of the case, and upon that theory the action was tried on his part. It was that the hack in which the plaintiff was riding ran into the automobile in which he was riding.

Somewhat inartifically .stated,' perhaps, but still in substantial accordance with the facts, this is the case before us as disclosed by the record here. And to these two rather plain and easily understood claims the evidence was addressed, by each side.

It is not to be expected that either side will concede that the theory of the other side is the correct theory. It all depends on the point of view. When Sidney Smith saw two women violently abusing eách other in London, from upstairs windows on opposite sides of the street, the witty parson remarked: ‘ ‘ They never will agree. They are arguing from different premises.”

So this case was tried. There was evidence, the tendency of which, if it was believed, was to support either of the two contentions, not without 'considerable plausibility. The theories were not at all obscure. The jury could not have been confused in regard to them, nor as to which of them the evidence in support of either was directed. It was a plain case, from either view point, accordingly as one looked at the not much disputed main facts brought out. It was a matter of running into, or being run into. Each side accused the other of being in the active voice and at the same time protesting that it was itdelf in the passive voice.

To pass -upon such an issue as this, is the peculiar and undoubted function of a jury. It is difficult to think of a case in which it could be more so. The question was mainly one of fact and the jury’s duty was to resolve it as they found the fact to be. To do this they had to adopt one theory or the other, according as in their estimation the facts preponderated, and to declare their finding in a yerdict, if they did not doubt the law to which, as instructed by the court, they were to apply the evidence.

This they did, and upon the plainest principle of the law which sets up the landmark between what is the work of a jury in giving effect to facts and what is the province of the court in declaring the law of a case, their finding is not to be disturbed except upon a clear perversion of duty on the part of the former. That the jury believed the evidence advanced to support one theory of the case rather than the other, even if the latter should appear to a court of review to be the more plausible of the two —which in this ease we are not saying — this would not justify xhe reviewing court in undoing the work which the law has- set for the jury and not itself to do, exclusively. To thus interfere with the undisputed function of the triers of fact would be mere usurpation.

In the case before us the jury evidently believed the evidence put forward by the defendant and gave effect to it by finding for him. This they had a right to do. We do not conceive that we have a right, in the state of this record, to impose a view upon the jury — if we had such a view — which would be destructive of that right — no overpowering or controlling consideration of substantial justice to the contrary of the verdict appearing.

It is argued that if we allow the verdict to stand we shall thus be imputing the negligence of the hack-driver to the plaintiff, his passenger.

.' To be persuasive this argument must concede the negligence of the driver and so far it supports the contention of the defendant that .the plaintiff has sued the wrong person.

’ ' Having made her selection of defendants,' she must abide by -the' consequences flowing from the choice. ■ One of 'these is.- we -think, "that .a jury inight .think the driver much to blame, in the •way-'-he-carried a passenger for whose presence-with him the.defendant clearly was not at fault. There is a North of England proverb that “if you ship the devil, you must sail with him. ’ ’ It seems to us to be good law, although not found in the books in just that form.

We conclude upon this branch of the case that the verdict and consequent judgment are not obnoxious to the complaint or against the clear weight of the evidence.

In support of the other contention that no instruction in respect of contributory negligence should have been given in charge to the jury, reliance is placed on the rule laid down in Branch, Instr. to Juries, Section 83. The pertinency of the rule proceeds upon the assumption that although the. alternative defense of contributory negligence was pleaded in the answer, there was no evidence brought forward to prove it, so that the issue was no longer in the case. Under such circumstances, it is maintained that to charge at all on the subject is worse than useless, in that the tendency of a charge will be to confuse and mislead the jury away from the issues that are in the case.

Of course if there was absolutely no evidence addressed to this alternative issue, the argument would have force, provided the effect could be said to be prejudicial to the complaining party.

We are not so sure as counsel are that there is the absence of all evidence whatever in this record that could be brought to bear upon the claim of contributory negligence charged upon the plaintiff by the answer in the case.

Evidence should not be ignored merely because it is negative evidence. Here, the plaintiff was in a vehicle, the window of which was open. It was not dark. The driver undertook to cut the corner bounded by two intersecting streets. He was to the left of the middle of each street, in disobedience both of the rule of the road and of the ordinances of the city of Mansfield, produced in evidence. The automobile with which he came in collision was on the side of the street where it had a right' to be — the right hand isde.

Its right hand front wheel was within a foot of the curb', and had actually dropped into the spillway located at that- point. It was going at a speed not much, if any, in excess of the gait of a man on foot. The horses pulling the hack were being urged across the street diagonally from left to right, at a trot or slow gallop. There was testimony in the ease tending to prove all these things. And for aught that appears all this was visible at the moment to the plaintiff, the line of vision being open and unobstructed and practicable.

If this was so, and she saw her driver — the driver of her selection and for the time being her servant — disobeying the ordinance and the well known rule of the road, and being where he should not have Been, and the danger impending, then it became her duty to attempt at least to restrain her servant by outcry or command laid upon him, and not doing so may have amounted to negligence on her part. If it was such, then this line of evidence, although negative in form, was fit to be considered by the jury in coming to a verdict. From the drift of the instruction given in this respect, we rather think that this was the view of the trial judge and that this controlled him in his action in that respect. We are inclined to think also that the charge in this respect given was thought by him to be a proper safeguard for the plaintiff against the jury by possibility inferring more than they should infer to’her disadvantage from the purely negative circumstances that we have mentioned. We think so, because this part of the instructions given seems extremely solicitous for the plaintiff’s right at that point and can in no just sense be thought unfavorable to her. We think that the issue may have been in the case. If it was, then it was proper, and the court’s duty, to charge upon it.

If it was not in the case, then we think the instruction could not have misled the jury to the harm of the plaintiff. The charge in this respect seems to us to lean towards the plaintiff and to be in her interest. We think it was so intended. Upon either footing, we are of the opinion that the giving it was not manifest error to the prejudice of the one who is complaining of it.

We find in this reeorrd that no error has intervened, and from it can not say that substantial justice has not been done.

The judgment of the court of common pleas is affirmed.


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    GROUNDS FOR VACATING DECREE AFTER TERM.
    Court of Appeals for Hamilton County.
    Nadine Procter v. Percy Procter.
    Decided, March 15, 1915.

      Relief After Judgment — Construction of the Phrase “Unavoidable Casualty or Misfortune" as Ground for Vacating a Decree — Petition for Vacation in a Divorce and Alimony Case — Section 11631.
    1. The “unavoidable casualty or misfortune,” which is made by statute a ground for modifying a decree after term, has reference to occurrences of a character that prevented the party from prosecuting or defending, and not simply to a casualty or misfortune which prevented the party from attending the trial in person.
    2. While the petition in the instant case, for vacation after term of the decree entered in a divorce and alimony case, contains rather startling averments, it omits averments necessary to establish the right to the relief sought, and the action of the court below in dismissing the petition is affirmed.

      Littleford, James, Ballard & Frost, Jesse Watson and II. Francis Dymff, for plaintiff in error.

      Maxwell & Bamsey, Joseph 8. Graydon ánd Joseph L. Laclcner, contra.
    Richards, J.; Chittenden, J., and Kinkade, J., concur.
    Error to the court of common pleas.
   The original action was a petition for divorce brought by the husband against the wife. Nadine Procter. Personal service was made on the wife, and an answer was filed by her admitting the marriage and denying all the other allegations of the petition. The ease was tried in the common pleas court, in her absence, and a decree of divorce granted to the husband, and ’ finding that by reason of a written agreement entered into between her and her husband, she was not entitled to alimony. Some five months after the decree was entered she filed in the same action a petition to vacate the decree. When that petition came on to be heard, it was held by the common pleas court to be insufficient, and the court refused to vacate the decree, and this proceeding in error is prosecuted to that decision.

It appears from the record that she was married to the plaintiff in 1909 in London, and in her petition to vacate the decree she avers substantially that she was prevented from attending the trial by unavoidable casualty and misfortune, in that after she was served with the summons it was necessary for her to return to Europe to attend to some important business matters, among them, the saving of her chateau in Menton, France, from being sold under foreclosure; and she avers that before leaving she had made arrangements with attorneys, whom she does not name, to see that the cause should not be tried until she should have an opportunity to appear and defend. She sets forth that upon receiving notice of the approaching trial, she embarked from Europe on April 11, 1912, upon the steamship “Titanic,” and that on the 15th day of April, 1912, this steamship collided with an iceberg and was lost. She avers that in being lowered into a small boat her knee was severely injured, and she was so shocked by being afloat in the middle of the ocean that she became unconscious and lost her senses and did not recover the same until she found herself in a hospital in London, and that she remained in that hospital, and under the care of friends, until in May of 1912, when she' traveled to her mother’s home in St. Petersburg, Russia. It appears from her pleading that she again sailed for America, arriving on the steamship “President Lincoln” about August 15, 1912, and on reaching New York learned that a decree had been entered in the case in the preceding June. The petition also contains averments, in substance, that she has newly-discovered evidence which she could not have discovered and produced at the trial, among other evidence, that the plaintiff had been guilty of adultery during the continuance of the marriage relation, and that she had further discovered evidence of the falsity of material portions of the testimony given on the trial, and that she could have proved, among other things, that the plaintiff was a very wealthy man and that she was practically without means and was entitled to a substantial allowance of alimony.- She avers that she could have established that the contract between her and her husband was not binding upon her and not a bar to her right of dower or alimony. No answer or demurrer was filed by the plaintiff! to this petition to vacate the decree, but the same was heard on the petition as if on demurrer and motion to dismiss, and the court, finding that the averments did not entitle the defendant to have the decree entered at the former term vacated, dismissed the petition to vacate.

The record in the case discloses that various incidents in the proceedings took place in widely separated places. • The marriage, as has been stated, was solemnized in London. The defendant’s answer was prepared in the city of New York. Depositions were taken at Nice, France, at the Boulevard Victor Hugo. During the taking of the depositions an adjournment was had for the purpose of allowing the American Consul-to-take a trip to Menton, France, and in addition to these, the defendant, after the action was brought, resided for a time in St. Petersburg, Russia.

The original petition for divorce was filed on January 16, 1912. The case was heard on April 11, 1912, but under the rules of the Common Pleas Court of Hamilton County, was taken under advisement for a period, and a decree was not in fact entered until June 8, 1912. The petition to vacate the decree was not filed until January 4, 1913, although she had apparently landed in New York on her final return to America, on August 15th previous.

The section of the General Code on which she principally relies is known as General Code, 11631, Paragraph 7, empowering the common pleas court to vacate or modify a judgment or order after'term, “for unavoidable casualty or misfortune, preventing the party from prosecuting or defending.” The petition filed by her contains- averments which are sufficiently startling, but the absence of other averments which would seem to be important is significant. It does not appear from that pleading when she returned to Europe, nor when she received notice of the approaching trial, nor that she could not have given her deposition while in London in May, 1912, fully setting forth her testimony, and filed the same in the Common Pleas Court of Hamilton County before the decree was rendered on June 8, 1912. . 'She was able during May to travel from London to St. Petersburg. It will be noted that the section of the General Code to which reference has been made, only authorizes the setting aside of a judgment for unavoidable casualty or misfortune, when it is of such a character as prevents the party from prosecuting or defending. It is not simply such an’ unavoidable casualty or misfortune as prevents the party from attending, in person, the trial. Furthermore, if she were in fact a passenger on the ill-fated Titanic and shipwrecked as set forth in her pleading, and as a result thereof confined in a hospital in London, it is inconceivable that a postponement of the trial would not have been granted if asked by her. Nowhere does it appear that she ever communicated with the court, asking for any delay, nor that she filed any pleading in the case except an answer which did not ask for alimony, and probably for the reason that she was then not denying the validity of the written agreement made between her and her husband barring her of alimony and dower. While the answer was prepared in New York in February, it was not filed in the court of common pleas of this county until the day the decree was entered, namely, June 8th. Although summons1 had been served on her in January, 1912, she had not employed counsel to represent her in the case and before starting to Europe she failed to employ counsel to represent her other than to secure a postponement. If it be true as she avers, and the truth of the averment must be assumed for the purposes of this ease, that she was a passenger on the steamship Titanic at the time it collided with an iceberg, then the query naturally arises how she came to be thereafter in a hospital in London, in view of what is said to be well known current history, that the survivors of that shipwreck were picked up at sea by a vessel which landed them at an American port.

While the petition to vacate the decree is broad enough to include, not only that portion of the decree which refused alimony to the defendant, but also the decree of divorce, it is nevertheless not contended now by defendant’s counsel that she is entitled to have the divorce decree set aside.

The court of common pleas committed no error in holding the allegations of her petition insufficient to justify setting aside the decree refusing her alimony. The judgment of the common pleas court will, therefore, be affirmed.


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    RECOVERY OF SALARY BY SANITARY OFFICER FOR. REMAINDER. OF TERM AFTER. DISCHARGE.
    Court of Appeals for Licking County.
    Henry Wiyiarch v. City of Newark.
    Decided, March Term, 1915.

      Municipal Corporations — Contracts of Employment — Board of Health Not Empowered to Discharge at Will — One Appointed for a Specified Term — Section 4412, General Code.

    The statutory provision that all appointees of the board of health “shall serve at the pleasure of the board,” does not give authority to the board to discharge without cause one appointed for a specified term, and one so discharged may upon tender of his services re cover the salary accruing for the remainder of the term.

      8. L. James and Smythe ■& Smyihe, for plaintiff in error.

      Ralph Norpell, City Solictor, contra.
    Houck, J.; Shields, J., and Powell, J., concur.'
    This Sause is here on error from the common pleas court of this county. The parties hereto stand in the same relation to each other as in the court below.
   The second amended petition in the court below contained two causes of action, but the first cause of action was disposed of in that court to the satisfaction of the parties, and therefore this court is not concerned as to the first cause of action.

The plaintiff in his second amended petition, in substance, says that the defendant, by its board of health, by resolution duly and legally passed and approved by the proper authority, appointed the plaintiff sanitary officer for said city for the period of one year from the 17th day of February, 1908, at a salary of $60 per month; that he entered upon the discharge of his duties, and performed the services required of him and received said salary. That on the 31st day of Uecember, 1908, the said city, by its board of health, passed a resolution retaining and appointing him for another year at the same salary, and that he continued in the discharge of his duties until the 3d day of July, 1909, when defendant attempted to discharge him, but without cause; that he continued to tender his services to said city and was ready and willing to perform the duties of such sanitary officer under his said appointment until the 1st day of January, 1910, and that by reason of the premises the defendant is indebted to him in the sum of $360, for which he asks judgment.

To this cause of action of the plaintiff, the defendant filed an answer in which it admits all of.the above allegations except that the second appointment was for a period up to January 1, 1910.

Upon the above pleadings, this cause came on for trial in the court below. A jury was waived and the cause was submitted to the court upon the evidence. Whereupon, the court dismissed the petition as to the second cause of action and rendered judgment in favor of the defendant. A motion for a new trial was filed by the plaintiff, and the same was overruled. To the overruling of the motion for a new trial, and for other errors appearing in the record as claimed by the plaintiff, the plaintiff prosecutes error to this court.

The action at bar and the appointment of the plaintiff as sanitary officer was based upon and made under favor of Section 2115 of the Revised Statutes of Ohio, which statute is as follows:

"The board of health shall appoint a health officer, who shall be the executive officer, who shall furnish his name and address and such other information as may be required by the state board of health; and may appoint a clerk, and may appoint, with the consent of council, as many ward or district physicians, or one ward physician for each ward in their city as they may deem necessary, whose duty it shall be to care for the sick poor in his district or ward and to care for the person or persons quarantined in his ward when such person or persons are unable to pay for medical attendance, and to care for all persons sent from his ward to the municipal pest house when such persons are unable to pay for medical attendance. The board of health shall also have power to appoint, with the consent of council, as many persons for sanitary duty as- in his opinion the public health and sanitary condition of the corporation may require, and such persons shall have general police powers, and be known as the sanitary police. The board shall have exclusive control of their appointees, and define their duties and fix their salaries, but no member of the board of health shall be appointed as health officer; neither shall a member of the board of health nor the health officer be appointed as one of the ward physicians. All such appointees shall serve during the pleasure of the board.”

The record in the case shows that the board of health, on the 31st day of December, 1908, passed the following resolution:

“That the following appointees be retained for the coming year: clerk, A. C. Gundlach; health officer, W. IT. Knauss; sanitary police, Henry Wiyiarch; food inspector, John Maybold.”

It was admitted by counsel upon both sides in this ease in its presentation to this court that the plaintiff had given bond and had done and performed everything required of him to be done under the statutes- before entering upon his duties as such sanitary officer; that he continued in said position and received 'his salary up to the 3d day of July, 1909, when the defendant, by resolution of the board of health, sought to dispense with his services; that no charges were preferred against him, and that no claim was made that he did not perform his duty in a faithful and acceptable manner; that plaintiff was ready and willing to perform said services required of him as sanitary officer, and that he tendered his services and stood ready and willing to do and perform the service required of him until the 1st day of January, 1910.

This cause is submitted to this court by agreement of counsel in this ease wholly and solely upon the question as to whether or not, under and by the provisions of Section 2115 of the Eevised Statutes of Ohio, the defendant, without cause, could discharge plaintiff and dispense with his services before the 1st day of January, 1910; or, in other words, could the defendant dispense with the services of the plaintiff at will, or was his appointment for one year under said statute, such that he could not be legally discharged, except for cause, until the 1st day of January, 1910? The plaintiff maintains that the appointment was for one year, and having given bond and qualified as required by statute, and entered upon the discharge of his duties, the same constituted a contract between the city and himself, and that -he could not be discharged from such service during said term except for cause. The defendant maintains that he could be discharged at the will of the defendant.

The question for the court to determine is as to the-construction of the statute above referred to. The object in the construction of a statute is to ascertain and give effect to the .intention of the Legislature, but its intention must be derived from the language of the statute and such as would give effect to the intention of the law-making, body and to the plain meaning of the words and language used in the statute. The defendaant contends that the words in said statute, “all such appointees shall serve during the pleasure of the board,” give to it the right to discharge the plaintiff at any time, even though he was appointed for one year; and that under and by virtue of said statute the plaintiff could be discharged even though appointed for one year, and it maintains this by reason of the fact that the statute above referred to gives the board the authority to make such appointments during the pleasure, of the board.

The defendant exercised its pleasure when it appointed the plaintiff for one year, which it had a right to do under the statute and the plain import and meaning of said language referred to. When it acted upon this right and exercised its right and authority to do so, and saw fit to appoint'said plaintiff for one year, and the plaintiff entered upon the discharge of his duties, and performed the same in an acceptable manner, could he legally be discharged before the term of his appointment expired ? We think not. His contract was entire, and the city must carry out its part of the same. A contract is a solemn and binding obligation between the parties thereto and can not be set aside and held for naught except with the consent of both parties.

We therefore find that the attempt to discharge the plaintiff without cause before the termination of his appointment for one year was invalid and illegal, and in violation of the intent and meaning of said statute. We therefore find that the court below erred in dismissing the petition of plaintiff and rendering judgment in favor of the defendant.

The judgment of the court below is reversed : and the court coming now to 'render the judgment that the court below should have rendered in this ease, it is ordered by the court that the plaintiff in errror recover of the defendant in error the sum of $345 (being the full amount plaintiff sued for, less fifteen dollars, which the record shows he earned during said time), with interest from the 18th day of March, 1915; and this cause is hereby remanded to the common pleas court for execution.


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    PROOF OF GUILT BY CIRCUMSTANTIAL EVIDENCE.
    Court of Appeals for Hamilton County.
    Thomas J. Carter v. State of Ohio.
    Decided, February 5, 1915.

      Criminal Law — Proof of Arson by Circumstantial Evidence — Character of Instruction to Jury Required Where Conviction is Ashed on Circumstantial Evidence — Error in Permitting Witnesses to Give Their Own Conclusions Based on Facts Which They Have Related.

    1. Where reliance for conviction is placed on circumstantial evidence, the jury should be instructed that the facts and circumstances upon which the theory of guilt is based should be shown beyond a reasonable doubt, and when taken together must be so convincing as to be irreconcilable with the claim of innocence and admit of no other hypothesis than the guilt of the accused.
    2. Where, in an arson case, the cause or origin of the fire is the subject of inquiry, it is prejudicial error to permit witnesses to state the conclusions they have reached from things they have seen and thcfacts they have related, but the witnesses having related the facts the jury should be left to draw their own conclusions.

      Thorne Balter, for plaintiff in error.

      Thomas L. Pogue and Simon Boss, Prosecuting Attorneys, contra.
    Jones (E. H.), J.; Swing, J., and Jones (Oliver B.), J., concur.
   Thomas J. Carter was found guilty of arson and sentenced to the penitentiary. The building burned was located at the southwest corner of Pearl and Sycamore streets in the city of Cincinnati. At the time of the fire it was occupied and used by Carter as a drugstore, he having bought a stock of goods located in said building some time prior to the fire.

Carter was convicted entirely upon circumstantial evidence. The state relied for conviction upon a number of alleged suspicious circumstances. In a general way these suspicious facts and circumstances might be classified as, first, the conduct of Carter before and after the fire; and, second, the place where it was claimed by the state the fire originated.

The record is a voluminous one; the briefs are correspondingly lengthy, and the ease was orally argued at some length. In our consideration of the errors assigned we have eliminated all but two, and these have received at the hands of the court much consideration.

The first of these is based upon the omission of the court to charge the jury correctly and fully upon “circumstantial evidence.” All that the court in its charge said to the jury upon this subject is found on pages 601 and 602 of the record, as follows:

“The evidence in this case has largely been what is called circumstantial evidence. There are certain crimes which are committed at such times and places and in such manner that it it is difficult to get direct testimony showing the actual commission of the offense. There is* no evidence in this case to show that this defendant actually set fire to this stock of goods, by any direct evidence. If such a thing happened, the only person who would know of that and be able to testify directly, would be the accused person himself. And, as I have said before, in regard to malice, this is an action which involves’ the consideration of the things that the accused person may, or may not, have had in mind; and the law permits us to go outside of direct evidence to establish such fact and to make your inquiry upon the circumstantial evidence that has been presented to you. Circumstantial evidence may, or may not, be as good, or even better, than direct evidence, in some cases. It is a class of evidence which is based upon certain acts, certain things done and said, certain surroundings and conditions and circumstances which would, when carefully weighed by you, enable you to determine upon the guilt or innocence of the accused. ’ ’

When a conviction is sought in a criminal case upon evidence of facts and circumstances connected with the alleged crime, it will not be denied, we take it, that the accused is entitled to an instruction as to the effect of such evidence and the degree of proof required as to the facts relied upon.

This principle was recognized by the trial court in this case when he used the language, above quoted, in attempting to explain to the jury the probative value of such evidence. But a careful reading of the portion of the charge quoted has failed to satisfy the court that any real instruction such as is contemplated by law and universally recognized as necessary by courts was received by the jury in this case.

From the authorities cited in the brief of counsel for .'plaintiff in error and others the rule appears to be well established that it is the duty of the trial court to charge the jury that the particular facts and circumstances relied upon to establish guilt must be proved beyond a reasonable doubt; also, that when taken together they must be so convincing as to be irreconcilable with the innocence of the accused or, as said by some authorities as to admit of no other hypothesis than the guilt of the accused.

The charges given to the juries in the eases of State v. Knapp, 50 Bulletin, 28, and State v. Mueller, 54 Bulletin, 94, contain instructions upon this subject which have been approved by our Supreme Court. In the former case the court closed the portion of the charge relating to circumstantial evidence, with the following language:

“Where the circumstances are irreconcilable upon the theory of the accused’s innocence the jury are bound to so treat them. It is only when the facts and circumstances are irreconcilable with his innocence that he can be convicted.
“To convict in a criminal case upon circumstantial evidence, each of tire several circumstances relied upon and necessary to prove any essential element of the crime must be established by' the evidence beyond reasonable doubt. Each link essential to the chain must be thus proven.”

We do not want to be understood as saying that it is necessary to use the language above quoted or any particular words, to express the rule governing such cases, but only to say that it is necessary in such cases as this that such instruction be clearly given. It is not claimed that the language used by the trial court in the case at bar can be given any such import. We are of the opinion that this requirement has not been met at all, and that the charge given can not be said to comply with this requirement, any more than if nothing had been said upon the subject. See, also, upon this point: Brickwood-Sackett Instructions, Vol. 2, p. 1609.

The second and last error which we have found, and desire to briefly.comment upon relates to the admission of evidence. The error occurred in the examination of the witnesses Conway, Flannagan, and McGinn, who appear as witnesses for the state.

The former (Captain Conway) is and has been for eighteen years superintendent of the salvage corps, and prior to that time was for nine years in the fire department. He testified that he had attended probably eight hundred fires a year. On page 32 of the record we find the following:

“Q. From your examination of that building can you now recall and tell the court and jury how many places — at how many places the fire had originated! (Objected to by counsel for defendant. Objection overruled. Exception noted by counsel for defendant.)
“A. Will you let me describe the location as to where the fire, in my opinion, originated!
“Q. That is what I want. A. This cellar under this building runs the full length of the building fronting on Sycamore street; that is the frontaage on Sycamore street -the cellar runs that full length, then it runs back in an L a little further in the rear than on the frontage on Pearl street. Now on the north side of the L, which would be the Pearl street side, there was stored a lot of boxes with empty bottles; these bottles, lots of them were in original -cartons to prevent them from breaking and they were stacked on top of another along this wall. After going carefully into that thing, and going back to it in different parts of the building the way these boxes were placed, it was evident to me that there was where the fire started on top of them boxes. (Objected to by counsel for defendant.)
“The Court: He is expressing an opinion as an expert. (Objection overruled; exception noted by counsel for defendant.)
“The Witness: After my examination there it was apparent to me that the fire did start in more than one place. (Objected to by counsel for defendant; objection overruled; exception noted by counsel for defendant.)
“A. And that was due to the way that where the fire, in my opinion, started in the different places, that it had started down deep into these boxes, and then burned from there up to the building, and when I came to that conclusion, after my examination, is when I notified the other officers.
“(Counsel for defendant moves the court to strike out answer ; motion overruled; exception noted by counsel for defendant.) ”

On pages 50 and 51 is found the evidence of Mr. Flannagan, who testified that he is a captain in the Cincinnati fire department and has been such for thirteen years; that he had been in the fire department for twenty-two years and had attended from one hundred and forty-four to one hundred and seventy fires a year. The record show's that the following took place while he was upon the stand:

“By Mr. Prather:
“Q. That fire you found behind the prescription counter— wheie did it come from? A. It looked to me like it started in the cellar and back through the floor.
“Mr. Baker: I move it go out.
“Motion overruled; exception noted by counsel for defendant. ’ ’

On page 51:

“Q. How was the floor burned on top and below? A. Well, the floor was burned on top all around.
“Q. The floor that wasn’t burned through, w'as it scorched on top or scorched underneath? A. Underneath.
“Q. What would that indicate as to where the fire started? (Objected to by counsel for defendant; objection overruled; exception noted by counsel for defendant.-)
“A. Well—
“Q. What, if anything, would that indicate? A. Well, I think that would indicate that the fire started in the cellar, w'here it first started.”

And in the testimony of Mr. McGrinn, who testified he was assistant state fire marshal, on page 354 of the record we find the following:

“Q. Go ahead and describe the conditions as near as you can that you discovered there in the cellar and in the store room at that time. A. Well, in the cellar the joists, and there was some posts leading up that were burned very biad, this high from the ground (indicating) showing that the fire must have started from some place above the ground. And from all indications, we could not find anything combustible— (Objection by counsel for defendant to this class of examination.) ”

The point urged by counsel for plaintiff in error with reference to the testimony above quoted is that the court erred in permitting these witnesses to state their conclusions of fact drawn-from what they had seen. The first witness, Conway, was not present at the fire at all, and testifies that when he reached the premises the following day the fire was extinct. He was permitted to give his conclusions of fact as to the origin of the fire, upon the theory that he had qualified as an expert upon this subject. We think he should have been permitted to testify only as to what he saw, and the province of the jury was to draw conclusions from those facts.

The theory of the state, throughout the trial, was that Carter had arranged combustible material in the basement or cellar, and had started a slow fire some hours before the fire broke out and the alarm was given. The effort of the state was to prove to the jury this fact. Tt did not involve any question of science or art, and does not as we believe fall under any of the exceptions to the rule'admitting expert testimony only in cases where questions scientific or artistic in their nature are involved.

Of course this error was prejxxdieial to the plaintiff in error. His right to have his guilt or innocence passed upon by a jury is guaranteed to him by the Constitution, and we think the evidence erroneously admitted deprived him of this right; and that the court by admitting this evidence gave the jury to understand that the conclusions reached by these witnesses were binding on them, or at least such inference woxxld naturally be drawn by the jury from the action of the court in admitting such evidence against the strenuous objection of counsel representing Carter.

Upon the question of the inadmissibility of this evidence we cite Kohn v. State of Ohio, 12 C.C. (N.S.), 197:.

“It is also prejudicial error to admit a statement of a conclusion by a witness who has stated no facts from which the conclusion can be drawn, and as to which the jury are quite as competent as the witness to draw a conclusion.”

This is a quotation from the syllabus in an arson ease.

In Canfield v. Southern Film Exchange, 14 C.C.(N.S.), 143, the syllabus reads as follows:

“It was a prejudicial error to overrule objections to questions and answers in this case which involved the very issue to be determined by the jury as to whether the • destruction of the property in suit was due to the negligence of the defendant, and constituted the only evidence upon which a verdict for the plaintiff could be based.”

For the reasons given, the judgment bélow will be reversed, and the cause remanded to the court of common pleas for a new trial.


text:
    WHEN CUSTOM OF INSURANCE AGENTS IS BINDING ON THE COMPANY.
    Circuit Court of Cuyahoga County.
    The New York Life Insurance Company v. The City Trust Company.
    Decided, January 20, 1908.

      Insurance — When Company Not Estopped, by Custom of its Agent— When Question of Agency Should be Submitted to Jury.

    1. Where a policy of insurance provided that premiums should be payable at the home'office of the company on a certain date in each year but that they might be paid to any agent of the company producing receipts therefor signed by the president, a vice’-president, actuary or secretary of the company, and a policy holder paid to an agency of the company his yearly premium, receiving therefor a receipt which was not signed by any of the specified officers, Held: That the company would not be bound by any custom prevailing at the agency in question in receiving premiums and issuing receipts other than the receipts specified in the policy unless it had actual notice of the custom, or that the custom had continued so long and the manner of doing business was such as that in the nature of things the insurance company should and would have known of it by the exercise of reasonable care.
    2. Where an agency of an insurance company receives a premium and issues a receipt therefor, other than the official receipt provided for in the policy, if it does so for the purpose of forwarding the premium received to the home office or to the agency through which the policy was issued, it thereby becomes the agent of the insured and not the insurer, and the question o£ whether or not it is so acting should be submitted to the jury where the company denies the receipt of a premium.

      Garfield, Hoioe & Westeñhaver, for plaintiff in error.

      Bacon & Clay and W. H. Boyd, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   On the 21st day of June, 1902, the New York Life Insurance Company issued to Richard W. Taylor, Jr., a policy on his life to the amount of $5,000. This policy was issued from the Park Row branch of the company in New York City, and not from the home office. At the time the policy was issued the first installment of premium, amounting to $140.55, was paid by Taylor, the policy itself containing a receipt for such payment. And it was provided in the policy that the same should continue in force until the death of the insured, provided there should be paid on the 21st day of June, 1903, and thereafter on the 21st day of June of each succeeding year a premium in the amount of $140.55. It was further provided that if any premium was not paid at the date when it became due, the insurance should automatically continue for the period of 60 days after such payment became due. It was further provided in the policy that:

“1. Only the president, a vice president, the actuary or the secretary has power in behalf of the company to make or modify this or any contract of insurance, or to extend the time for paying any premium, and the company shall not be bound by any'promise or representation heretofore or hereafter given by any person other than the above.
‘ ‘ 2. Premiums are due and payable at the home office, unless otherwise agreed in Writing, but may be paid to any agent producing receipts signed by one of the above named officers and countersigned by the agent. If any premium is not paid on or before the date when due, the liability, of 'the company shall be. only as hereinbefore provided for such case.”

It was further provided that if the premium was not paid when due, the company would restore the policy as of the date of such non-payment on the payment of the premium as within one month after the 'due date, with interest at the rate of 5% per annum.

This period of one month is spoken of as “the one month of grace.” It is further provided that the insured, if payment is not made at the time it becomes due, or within one month thereafter, could only be reinstated on written application from the home office with evidence of insurability, etc.

The insurance company maintain an office known as the Cleveland branch in the city of Cleveland, from which policies were issued and at which payments of premiums were made. At this office there was a cashier, an assistant cashier and a number of clerks. Taylor was the cashier of this office for a considerable period, and so was familiar with the manner of doing business in this office, but was not such at the time this policy was issued. The policy spoken of was assigned by Taylor to the City Trust Company, and such assignment was registered at the home office of the company. Taylor died on the 10th of September, 1903, and the trust company brought suit' against the insurance company upon the policy. The insurance company denied liability, one of the grounds being that the installment of premium due. on the 21st day of June, 1903, was not paid either at that date or at any date, and in any event that it was not paid nor attempted to be paid until more than one month after the date when it became due. This was the main issue tried in the case. The result of the trial was a verdict and judgment for the trust company, and this proceeding is brought by the insurance company seeking to reverse that judgment.

The claim on the part of the trust company was and is that this premium was paid at the Cleveland office on the 22d day of June, 1903, to Edward C. Kilfoyle, Avho was then the assistant cashier at the Clevelaaid office, and that by the course of business carried on for a long period of time before this payment, a custom was established, known to the insurance company, of payments being made in this wise to officers and clerks in charge of the Cleveland office. It is conceded that Kilfoyle did not deliver to Taylor at the time this payment was anade a receipt signed by either the president, a vice-president, actuary or secretary of the company, nor did he have in his possession any such receipt which he could have delivered to Taylor, but, it is said, that he did deliver a receipt to Taylor reading as follows:

“Cleveland, 0., June 22, 1903.
“Received from R. W. Taylor, Jr., one hundred and forty and 55/100 dollars, prem. due June 21st, 1903; policy No. 3295168.
$140.55.”

On which receipt was stamped by a stamp of the insurance company the words “New York Life Insurance Compay,” and that this was .signed “C. E. Griffey, Cashier, Kilfoyle.”

This receipt was offered in evidence. Objection was made to its being received. This objection was overruled and an exception noted. It is claimed that this was error. We find no error in the admission of this receipt, when coupled with proper instructions as to what must be shown on the part of the trust company to make such receipt binding upon the insurance company. It should be said here that it was established that the words stamped upon 'the receipt were so stamped by Kilfoyle and that he wrote the words, “C. E. Griffey, Cashier,” and signed his own name “Kilfoyle.” Of course since the payment to Kilfoyle, if it were made, could not avail the trust company, unless authority in Kilfoyle to receive and receipt for the money was shown, one of the things necessary to make the case of the trust company was to show that payment was made; that to be followed by showing that the party to whom such payment was made had authority from the company in some manner to receive and receipt for the money. As a step in making this proof we think it was proper that the receipt should have been admitted in evidence. There remained, however, the necessity of proving that Kilfoyle had the proper authority. Tt is not claimed that there was any express authority given to Kilfoyle or to any other officer or employee of the company at the Cleveland office, but it is urged that such authority could be shown by a custom long continued, known to and acquiesced in by the compány. Evidence was introduced tending to show such custom; at any rate tending to show that both Griffey and Kilfoyle had received money in payment for installments of premiums on policies not issued from the Cleveland office, and for which no receipt signed by the officers specified as those whose signatures must appear on the receipt to make it valid, and that money so received by these parties was forwarded to the home office or to the branch office at which shell policy was issued.

Kilfoyle denied that the money was paid to him or that any payment was made to him on account of this policy at the time the receipt ivas dated, but he makes no satisfactory explanation of how the receipt came to be given. Besides this denial on the part of Kilfoyle that there was no payment made to him at the time the receipt is dated, there is evidence of a transaction on the 23d of July, 1903, which tends to sustain this denial on the part of Kilfoyle.

The jury reached the conclusion that the money was paid to Kilfoyle on the 22d of June and that this receipt was given to Taylor on that day. A majority of the court do not feel that we would be justified in reversing the judgment on this, as being against the weight of the evidence, though it must be conceded that it is not unlikely that another jury with the same evidence might come to a different conclusion.

On the part of the plaintiff in error it is urged, that in the face of the written provisions of the policy, to which attention has been called, no custom shown to have existed at the Cleveland office of receiving payments of premiums in eases like the one under consideration, could constitute a waiver on the part of the company; that the exact terms of the policy should be complied with. With this proposition we do not agree. The several members of this court, however, are not at one upon all of the propositions involved in this case, but we are all agreed that the insurance company could not be bound by any custom prevailing at the Cleveland office of which it did not either have actual notice, or that the custom had continued so long and the manner of doing business' was such as that in the nature of things the insurance company ought to have known of it, and would have known of it by the exercise of reasonable care, ánd we are of the opinion that judgment should be reversed for failure on the part of the court to give to the jury the ninth proposition, which was requested by the insurance company to be given to the jury, before argument, reading as follows:

“The court further charges the jury that the act of C. E. Griffey or said E. C. Kilfoyle, or any other agent of the defendant company in receiving or attempting to receive money from insured persons on account of premiums on policies at its office in Cleveland at times when the premium receipt signed as required by the terms of said policy had not been forwarded to said office, if such receipt was for the purpose merely o.f forwarding such money separately to the home office or to the office or agent, in possession of the official receipt, does not constitute a custom of practice which can be relied upon as evidence of a waiver on the part of the company of the provisions of the policy requiring payment only to be made at the home office unless otherwise agreed in writing or to an agent producing a receipt signed by the president, a vice-president, the actuary or secretary of the.company, but such act of said agent or other person is to be regarded as making such person the agent of the party paying the money for the purpose of remitting the same to the person duly authorized to receive it.”

And we are further agreed that the case should be reversed by reason of the following language which was the last instruction given by the court to the jury in its general charge.

This reads:

“But if you find from the evidence and by the greater weight of the evidence that Taylor paid this money on June 22, 1903, that this money was paid and received at the local office of the defendant company, paid to the agent of the company or to his assistant; and you find that it was the custom of said branch office and its officers for a long time prior to the 22d of June, 1903, to accept such payments in the absence of the official receipt, then you will return a verdict for the plaintiff for the full amount, together with interest from December, 1903, to the first day of this term of court, to-wit, April 1st, 1907.”'

This proposition leaves out the essential element that this custom was known to the insurance company and assumes that if it had existed for a long time prior to the 22d of June, 1903, the company must have known of the custom.

The words, “for a long time,” are indefinite, and might be construed by the jury as meaning several months or several years, and might naturally be construed by the jury as an instruction to find on such custom and against the insurance company without reference to whether the custom had ever come to the knowledge of the officers of the company or to the company itself.

Immediately preceding the instructions last quoted, the court used this language:

“Or, if you find that the transaction of July 23 — a month thereafter and a day — related to this policy and this premium, then your verdict will have to be for the defendant. That is, if. the money paid to the defendant company by Taylor on July 23, included or intended to include the $140.55 due and payable on this policy, your verdict will have to be for the defendant. Or, if you find from the evidence and from the preponderance of the evidence that the sum of $140.55 was paid by Richard W. Taylor on June 22, but was paid to a person not authorized to receive it, was paid to an agent of the defendant company who Taylor knew, or by the exercise of ordinary care could have known, had no authority to receive such payment, and that there was no custom or practice in said office of taking and collecting premiums in the absence of official receipts — if it was known to the defendant that there was no such custom, then your verdict will have to be for the defendant in this case.”

It can not be doubted that this statement is a true statement of the law, but we think the implication in the statement is that the verdict could only be found for the defendant so far as this matter of paying' to the proper person, is concerned, unless they should find that Taylor affirmatively knew that the party to whom he paid was not authorized to receive it, or knew that there was no custom-or practice in said office of taking and collecting premiums in the absence of official receipts. The language used to the jury was calculated to mislead them, and might well be considered by them as an instruction that, in order to relieve the company from liability by reason of this payment, it must affirmatively appear that Taylor knew .that the party whom he paid was not entitled to receive it.

For the reasons pointed out the judgment in this case is reversed and the cause remanded to the court of common pleas.