author: Burket, C. J.

text:
    Hull v. Alexander, Treasurer.

      •Collection of delinquent taxes—Action by county treasurer—Must be for taxes on duplicate—Section A59, Revised Statutes.

    'The action by the county treasurer for the collection of delinquent personal taxes authorized by section 2859, Revised Statutes, must be for taxes standing charged on the duplicate of the current year, or the delinquent duplicate.
    (No. 8341
    Decided October 13, 1903.)
    Error to the Circuit Court of Crawford county. •
    On the sixteenth day of January, 1901, W. L. Alexander, then treasurer of Crawford county, began his action against J. C. P. Hull for the recovery of $1,048.20, taxes and penalty claimed to be due to said county, from said Hull, for delinquent taxes on shares owned by said Hull in the Second National Bank of Bucyrus, Ohio, which shares had been returned by the cashier to the county auditor for taxation, and the valuation and taxes by him placed on the duplicate for the years 1892, 1893, 1894 and 1895, taxes claimed for the year 1892, $198.14, penalty, $19.81; for the year 1893, taxes, .$166.05, penalty, $16.61; for the year 1894, taxes, :$275.07, penalty, $27.51; and for the year 1895, taxes, $313.65, penalty, $31.36; total taxes claimed, $952.91,. penalties, $95.29, making in all, $1,048.20.
    Mr. Hull refused to pay the full amount of these-taxes, claiming that he was entitled to deduct his debts from the value of his national bank shares, and so the-matter stood until in August, 1895, the board of county commissioners, by resolution adopted and recorded, empowered the then county treasurer, John Blyth, to compromise and settle all doubtful claims for taxes due and unpaid September 15, 1895, in such way as to him should appear best, and from time to time report to the board his doings for its approval.
    Under this resolution the then treasurer and Mr. Hull effected a compromise and settlement of the taxes, on said bank shares, Mr. Hull making an affidavit as to the amount of his indebtedness, and the treasurer deducting that amount from the valuation of the bank shares, and ascertaining the amount of tax on the balance left for the years 1892, $39.00, 1893, $32.40, and 1894, $124.55, total, $195.95, which sum Mr. Hull paid to Mr. Blyth, the then treasurer, on the eleventh day of January, 1896, and took a receipt therefor from the-treasurer, and which receipt is as follows:
    “Treasurer's Office,
    “Crawford Co., Ohio, Bucyrus.
    “Received of J. C. P. Hull the whole installment of taxes charged for the years 1892,1893 and 1894, on the-following property in Bucyrus township, to-wit:
    (Here follows the years, valuation, rate, and taxes on said shares.)
    “The above sum is received in settlement of delinquent taxes on national bank shares owned and retained by J. C. F. Hull, and is for the sum found due-to the county treasurer after deducting from the par-value of said bank shares the bona fide debts of the owner, having filed his affidavit of said indebtedness, and having made his claim for deductions under the national banking laws of the United States.
    “John Blyth, “County Treasurer.”
    This settlement was made while the treasurer had the duplicate of 1895' in his hands for collection, and the delinquent taxes of 1892, 1893 and 1894 had been carried forward upon that duplicate. As the taxes of 1895 were also on the same duplicate, but not yet delinquent, it is not clear why they were not settled and paid at the same time. But the record shows that they were allowed to remain unpaid until December 30, 1896, when they were settled and paid, as shown by the following receipt:
    “No. 2025. Treasurer’s Office,
    “Crawford Co., Ohio, Bucyrus.
    “I received of J. C. F. Hull the whole installment of- taxes charged for the year 1895, on the following property in Bucyrus township, to-wit:
    “The above is in full settlement of taxes charged against J. C. F. Hull on national bank stock, said Hull having filed affidavit of his indebtedness and asked the same to be deducted from the par value of said bank shares under the national banking laws, and said amount being the true amount found due the county after said deductions were made.
    “Delinquent.
    “1895. Value, $4,500; amount of tax, $124.20.
    “John Blyth,
    “County Treasurer, Collector.”

      After the settlement and payments, as above shown, no part of the taxes sued for was carried forward or placed upon the duplicate delivered by the county auditor to the county treasurer for any of the years subsequent to said payments, and said taxes so sued for did not appear on the duplicate for the year 1900, being the duplicate in the hands of the county treasurer at the time he commenced his action on January 16, 1901.
    Mr. Hull in his answer pleaded these settlements and payments as conclusive, and also claimed that the treasurer had no power to sue for or collect taxes not on his duplicate for the current year, and that at least he should have credit for the amounts paid to the treasurer.
    The treasurer claimed that the said settlements were void for want of power in the parties to make the same, that he could sue for any taxes at any time lawfully assessed and standing unpaid upon any duplicate, whether for the current year or any past years, and conceded that Mr. Hull should have credit for the amounts paid.
    The above are the conceded and controlling facts.
    The case was tried to a jury, and many questions raised upon the introduction of testimony, especially as to the old duplicates, but which need not be specially noticed in this opinion, as we dispose of the case upon the question of the power of the treasurer to maintain the action.
    At the close of plaintiff’s testimony the defendant made a motion to the court in effect to arrest the testimony from the jury, and to direct a verdict in his favor for the reason that the action is not authorized by statute upon the duplicates of the dates mentioned in the plaintiff’s petition; and for the further reason that the evidence offered by the plaintiff was not sufficient to entitle the plaintiff to a verdict in his favor.
    The court overruled the motion, and the jury brought in a verdict in favor of the plaintiff for 1728.05. A motion for a new trial was overruled, and judgment entered on the verdict. Proper exceptions, were taken throughout the trial.. The circuit court, affirmed the judgment. Thereupon the cause was-brought here for the purpose of reversing the judgments of the courts below.
    Messrs. Harris & Bears, attorneys for plaintiff iru error.
    The points we contend for are as follows:
    First. The plaintiff below had no authority in law to bring this suit. He had no warrant therefor. The-statute, section 2859, which authorizes a county treasurer to bring suit for taxes which “stand charged on the duplicate” refers to the current duplicate in his. hands, but not a duplicate eleven years old, on which the tax was not brought forward as delinquent nor placed on the duplicate of Treasurer Alexander, plaintiff below, as provided in section 2855.
    Second. The law during these years allowed such deductions to be made, and when once allowed, this, court will not afterwards enforce their collection.
    Third. When the collectibility of a tax is doubtful, it is competent for the county commissioners to authorize the treasurer to settle or compromise such doubtful claim whether the doubt arises from the responsibility of the tax-payer or the question of his liability, under the law, for its payment.
    Fourth. The treasurer having made such settlement and compromise, and the tax-payer having paid the fixed amount and taken a receipt therefor in full, ¡and said tax having thereafter been left off the treasurer’s duplicate, the succeeding treasurer in after years has no power to bring suit therefor, upon said •obsolete duplicate of his predecessor.
    The law as to the auditor is imperative. He shall make such duplicate of unpaid taxes of the preceding year and shall deliver it to the treasurer on the fifteenth day of the ensuing September. (Section 2855.) Having done so, the “treasurer shall forthwith proceed to collect the taxes and penalty on said •duplicate by any of the means provided by law.” ■ (Section 2858.) That is to say, he may distrain property in a summary manner, or he may bring an action ¡at law.
    How frivolous it is to claim that Alexander can Tbrush away those statutory provisions, and either dis-train or sue for taxes on a duplicate of a former •treasurer which never was made, was never marked •delinquent, was never marked with a penalty, and that never came into his hands. Hoglen v. Cohan, 80 Ohio St., 443.
    Where can be found any other authority for the treasurer to sue for taxes? This question was never answered by opposite counsel in the courts below, and it would be gratifying to have them point out such .authority in this court.
    In the case of Lee, Treasurer, v. Sturges, 46 Ohio St., 153, the taxes were placed upon the duplicate by the auditor after the semi-annual settlement with the treasurer, and penalty added upon that duplicate the treasurer brought his suit. No such duplicate was in Treasurer Alexander’s hands against Hull at any time.
    All the questions involved in this case, and in this •class of cases, regarding Mr. Hull’s liability, are federal questions, and the state courts follow the federal decisions, and the decisions of the courts of Ohio are reviewable by the federal courts. Miller, Treasurer, v. Bank, 46 Ohio St., 430.
    Under the law as subsequently announced in State v. Akins, 63 Ohio St., 182, many cases have been decided wherein bank stockholders brought suits to restrain the county treasurer from collecting the balance of the taxes on their bank stock, after having once been allowed their offsets for bona -fide debts. In each of these suits decree was rendered in favor of the complainant, and the treasurer was enjoined for the reason that it was a federal question, and was governed at that time by the case of Whitbeck v. Bank, 127 U. S., 193. The same law remained, and all offsets which had been allowed from that time until the law was changed in the case of Chapman v. Bank, by the Supreme Court of Ohio, and approved by the decision of the Supreme Court of the United States, Bank v. Chapman, 173 U. S., 205, are confirmed and protected.
    The identical principle of law we contend for was fully decided by the circuit court of the United States N. D. Ohio, May 29, 1901, since plaintiff below filed his reply herein, in the case of Bank of Cleveland v. Lander, Treasurer, 12 O. F. D., 427.

      Messrs. Finley & Callinger, attorneys for defendant in error.
    When this action was begun, the plaintiff below, treasurer of the county, found due and unpaid on the duplicates for the years 1892 to 1895, inclusive, and also upon the delinquent duplicates, unphid taxes (marked unpaid) against the plaintiff in error, as shown by the petition and amendment thereto, and the evidence aggregating $952.91, and all of said taxes being delinquent, the penalty would aggregate $95.29, making a total of $1,048.20 unpaid taxes and penalty for which he brought suit.
    The defendant by way of defense sets up the transaction in 1896 between him and the county treasurer, John Blyth, as a defense against paying the remainder of the taxes. He calls it a settlement between him and the county treasurer, and the single and only question in this case is whether a county treasurer, whose sole and only duty is to collect the taxes upon the duplicate for collection, can enter into a contract with a tax-payer, as in this case, accepting one-third of the amount appearing due on the duplicates in satisfaction of the whole, and give a receipt (no matter how worded) that will bind the state and county and bar them from collecting the remainder of the taxes and protect the tax-payer in a suit for the collection of the remaining taxes. If he can make a contract of this kind with one tax-payer, he can with all, and if he can remit a part, he can remit all, and thereby might compromise away one-half, two-thirds or even all of the taxes on the duplicate Counsel for plaintiff in error seem to think he can do so. We think not. Counsel for plaintiff in error profess to believe that this case is on “all-fours” with the case of State v. Akins, 68 Ohio St., 182.
    That case was in mandamus to compel Akins as auditor to place on the duplicate certain deductions (on account of indebtedness from the value of shares of'national bank stock), as omitted taxes under sections 2781-2782. There is no similarity between the two cases and the Akins case is not in point.
    Counsel for plaintiff in error profess to believe that the resolution of the board of commissioners of August 6, 1895, conferred authority on the treasurer to make what counsel calls a settlement. The only authority of the county commissioners on the subject is to be found in section 2858. The commissioners cannot employ a collector. They cannot appoint the treasurer as a collector. They can only authorize the treasurer to appoint a collector, and he cannot appoint himself as such collector, as decided by this court in Commissioners v. Arnold, 65 Ohio St., 179.
    Counsel for plaintiff in error commenting upon section 2858 take the position that it is competent for the “county commissioners to authorize the treasurer to settle or compromise doubtful claims.”
    The statute says nothing about doubtful claims but speaks of delinquent claims, and says nothing about authorizing the treasurer to settle, and it is plain from this section what the legislature intended in authorizing the appointment of a collector. The treasurer’s power is to collect, not to settle, and it is a strange thing to say that a collector can pass on the question of law as to the liability of a tax-payer and pass judgment as to the legality of taxes upon the tax duplicate.
    This court has held to the contrary in the case of State v. Commissioners, 31 Ohio St., 271. The only power to compromise and remit taxes is vested in the state auditor under section 167, Revised Statutes, and he only can do so in conjunction with the governor and attorney general.
    It is no longer an open question that the owner of national bank shares of stock has no right to deduct his bona fide debts from the value of such bank shares of stock. Niles v. Shaw, 50 Ohio St., 370; Chapman v. Bank, 56 Ohio St., 310.
    Even if it is a federal question, the Supreme Court in Bank v. Chapman, 173 U. S., 205, and in Bank v. Ayers, 160 U. S., 660, decided against plaintiff in error squarely, and in Kirtland v. Hotchkiss, 100 U. S., 498, and Gas Light Co. v. Shelby Co., 109 U. S., 398, held that it is not a federal question.
    Counsel claim that the so-called settlement between Hull and Treasurer Blyth is res judicata and conclusive. The Chapman case decides this, to the contrary. Railway Co. v. Missouri, 152 U. S., 316.
    On the question that the treasurer cannot maintain this suit because (as counsel claim) there was a neglect to carry these unpaid taxes into delinquent duplicate, there is nothing whatever in that claim.' This court repudiated that idea in the following cases: State ex rel. v. Crites, 48 Ohio St., 460; Wasteney v. Schott, 58 Ohio St., 410.
   Burket, C. J.

It is clear that Mr. Hull had no right to deduct his debts from the valuation for taxation of his national bank shares, during the years 1892 to 1895, both inclusive, and that the state of Ohio during said years did not recognize such right, and did not accept the case of Whitbeck v. Mercantile National Bank, 127 U. S., 193, as deciding that such right existed, but on the contrary held that such right did not exist, and in such holding the state has been upheld by the Supreme Court of the United States. Niles v. Shaw, 50 Ohio St., 370; Chapman v. Bank, 56 Ohio St., 310; Bank v. Chapman, 173 U. S., 205; and Bank v. Ayers, 160 U. S., 660.

The question as to whether debts are required by the Federal Statute as to national banks, to be deducted from the valuation of shares in a national bank for taxation is a federal question, and has been finally settled by the Supreme Court of the United States, but the manner in which a state shall regulate its internal tax system, is not a federal question, and so long as shares in a national bank are not taxed at a higher rate than other moneyed capital, the federal courts cannot interfere, even though they might think that the state system of taxation was unjust and oppressive. So long as the injustice and oppression rests equally on national bank shares and other moneyed capital, the remedy must rest with the state. Kirtland v. Hotchkiss, 100 U. S., 498; Memphis Gas Light Co. v. Shelby Co., 109 U. S., 398.

There has therefore been no change in the judicial holdings in this state as to the taxation of shares in a national bank for the years in question, and while some county auditors may have followed the rule supposed to be laid down in the Whitbeck case, the subsequent case of Bank v. Chapman, 173 U. S., 205, shows, that there was an erroneous construction of the Whit-beck case; and an erroneous construction of a former decision will not serve to protect those who have acted under and in pursuance of such error, and cannot serve as stare decisis, because such decision,, when properly construed, never stood, and does not now stand. It is urged that Mr. Hull could have enjoined this tax under the Whitbeck case, but that this is not so, is shown by the fact that Mr. Niles failed in his case, as did also Mr. Chapman in his, and both relied upon the Whitbeck case.

It is therefore clear that at the time of these two settlements Mr. Hull owed the full amount of taxes then standing on the duplicate against him. Whether the first settlement had sufficient validity to bar a further collection may well be doubted, but it is clear that it induced the auditor to omit the unpaid portion of the taxes from all subsequent duplicates. The taxes of 1895 did not become delinquent until June 20, 1896, and were not included within the authority of the resolution of the commissioners of August 6, 1895, because that resolution only covered taxes due and unpaid on the fifteenth day of September, 1895. It would seem, then, the treasurer had no authority to make the settlement of December 30, 1896; but he did make it, and received the money from Mr. Hull, and gave him a receipt therefor as above shown; and that settlement, though it may have been unauthorized, induced the county auditor to omit the unpaid portion of the taxes from the next duplicate, and he never thereafter placed said.unpaid taxes upon any duplicate. After the treasurer had received and collected the duplicates for the years 1897, 1898, 1899, and had in his hands for collection the duplicate of 1900, all without said unpaid taxes being entered upon any of them by the county auditor, the county treasurer brought this action for the collection of unpaid taxes which had not been on any duplicate after the years 1895 and 1896, and which duplicates had been settled between the county auditor and county treasurer as provided by sections 1043, 1044, and 1115, Revised Statutes, and no longer remained in his hands for collection, and with which he was no longer charged by the county auditor.

If the county treasurer could maintain an action on such old duplicates, which had been thus settled, and from which he had been discharged from liability, it must be by virtue of some statute; because an officer, as a general rule, can maintain an action in his official capacity for the collection of public funds, only when authorized by statute.

By section 2855, Revised Statutes, the county auditor is required to make a delinquent tax list or duplicate, immediately after the August settlement, and deliver the same to the county treasurer on the fiftenth day of September, annually.

By section 2856, Revised Statutes, the treasurer is required to proceed forthwith to collect the taxes and penalty on said duplicate by any of the means provided by law, which would include a collection by civil action. But in the case at bar the civil action' was not founded on “said duplicate,” that is the delinquent duplicate, but upon certain old defunct duplicates no longer in the hands of the treasurer for collection. The action was therefore not authorized by said section 2856.

It is urged, however, that the action is authorized by section 2859, Revised Statutes. That section is .as follows:

“When any personal taxes, heretofore or hereafter levied, shall stand charged against any person, and the same shall not be paid within the time prescribed by law for the payment of such taxes, the treasurer of such county, in addition to any other remedy provided by law for the collection of such personal taxes, is hereby specially authorized and empowered to enforce the collection by a civil.action in the name of the treasurer of such county against such person for the recovery of such unpaid taxes; and it shall be sufficient,- having made proper parties to the suit, for such treasurer to allege in his bill of particulars or petition that the said taxes stand charged upon the said duplicate of said county against such person, that the same are due and unpaid, and that such person is indebted in the amount appearing to be due •on said duplicate, and such treasurer shall not be required to set forth in his petition any other or further .special matter relating thereto, and said tax duplicate shall be received as prima facie evidence on the trial of said suit of the amount and the validity of such taxes appearing due and unpaid thereon, and of the nonpayment of the same, without setting forth in his. bill of particulars or petition any other or further special matter relating thereto; and if, on the trial of the action, it shall be found that such person is so indebted, judgment shall be rendered in favor of such, treasurer so prosecuting such action as in other cases; and the judgment debtor shall not be entitled to the benefit of the laws for stay of execution or exemption of homestead, or any other property, from levy or sale on execution in the enforcement of any such judgment.”

This section was originally passed March 31, 1877,, and was entitled, “An act to secure the collection of' delinquent taxes.” It was slightly amended May 11, 1878, and carried into the Revised Statutes of 1880, and has remained the same ever since. It will be noticed that it provides for the collection of personal taxes which were levied either before or after the passage of the act, and stand charged against any person, and not paid within the time prescribed by law—delinquent personal taxes. When personal taxes stand charged against any person, means-charged upon some duplicate in the hands of the treasurer for collection, and not upon some old defunct-duplicate. This clearly appears from what follows, “and the same shall not be paid within the time prescribed by law for the payment of such taxes.” This implies a charge against a person which can be discharged by simple payment without invoking any other process or requirement; and the only charge against a person in favor of the treasurer that can be so paid is a charge upon the current duplicate or-delinquent list in liis hands for collection. This is. made clear by sections 1084 and 1085, Revised Statutes. Section 1084, after requiring the treasurer to-keep an account of all moneys received and paid out by him, provides that, “no money received for taxes, charged on the duplicate of the current year, shall be-by the treasurer entered on his account with the. county, until he has made his semi-annual settlement, with the county auditor.” And section 1085 provides that: “All payments of money into the county treasury of every description, except the payment of' taxes charged on the duplicate, and made before the return by the treasurer of the delinquent list for unpaid taxes, shall be paid to the county treasurer on the draft of the county auditor, in favor of the treasurer.”

It is made clear by this section that payment of taxes standing charged on the duplicate of the current year can be. made to the treasurer direct without, warrant or draft from the county auditor, because the duplicate is his warrant for receiving the same; and it is further clear that payment of taxes standing-charged on the delinquent duplicate can be made direct to the treasurer until the return by the treasurer 'of the delinquent list, but that after the return of the delinquent list payment can be made only upon the warrant of draft of the county auditor; because after the return of the delinquent list the treasurer has no warrant or duplicate in his hands for collection, and in case payment of taxes should then be. made to him, the auditor would have no account thereof; and therefore in order to keep the proper charge against the treasurer, the statute requires that he have either a duplicate or draft from the auditor authorizing him to receive the money; and such. duplicate, whether of the current year or of delinquent taxes, and such draft, enable the auditor to have in his office at all times a charge against the treasurer .for all money paid to him.

In all our tax legislation the only duplicates mentioned are the duplicate of the current year, and the -delinquent duplicate, and all charges of taxes are required to be kept on one or the other of such dupli- • cates; and nothing is provided as to collections or .actions on old duplicates of former years, and therefore the words “said duplicate” in section 2859 must be construed as referring to the duplicate of the current year or the delinquent duplicate.

Again, the county treasurer is strictly a collector -of taxes, and not a tax inquisitor or taxing officer. He performs his whole duty when he collects the money charged upon the tax duplicate and delinquent list delivered to him by the auditor for collection, or •charged upon a warrant'or draft delivered to him by the auditor authorizing him to receive money; and he is not authorized by statute to hunt up and collect old stale claims not placed on the duplicate or delinquent list of the current year by the auditor. The auditor is the taxing officer, and the treasurer the collecting •officer.

When people have so arranged their taxes, either by payment or otherwise, as to have the charge removed from the duplicate, the place to begin to have •such taxes again placed on the duplicate and made a •charge against such person, is in the office of the auditor ; and the treasurer has no authority to revive, sue for, or collect such taxes, until again placed on the •duplicate by the auditor.

It is therefore clear upon the conceded facts in this «case, that the treasurer had no power or authority to bring or maintain this action; that the court erred in admitting the old duplicates in evidence; and erred in overruling the motion of defendant to arrest the testimony from the jury, and for judgment in his favor.

The judgment of the circuit court, and also that of the common pleas, will be reversed, and the said motion of the defendant below will be sustained and the petition dismissed.

Whether at this late day the auditor can place the unpaid portion of Mr. Hull’s taxes on the duplicate so as to enforce their payment, is not involved in this case, and is not here decided. No attempt has been made by the auditor to again place said unpaid taxes on the duplicate. Should such attempt be made, it will then be proper to decide the question. The question is not now before us. Neither is the validity or invalidity of said settlements decided. The treasurer not having the power to bring the action on the old duplicates, he could not in any unauthorized action test the validity of the settlements.

Judgments reversed and judgment for plaintiff in error.

Davis, Shauck and Price, JJ., concur.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    The State of Ohio v. Roselot.

      Proceedings when prisoner alleged insane—Section 7240, Revised Statutes—Duty of court to try qtiestion of insanity—Defendant on trial for murder—Error for cotirt to refuse demand for hearing, when—Charge to jury.

    1. The provisions o'f section 7240, Revised Statutes, are mandatory; and the mode therein prescribed for a trial of the question of the present insanity of a person under indictment is peremptory and exclusive.
    2. When, therefore, at any time before sentence, the insanity of a defendant under indictment is suggested and brought to the attention of the court in which such indictment is pending in the manner provided in said section 7240, it is the imperative duty of the court to order a jury to be impaneled to try such question, and such jury when so impaneled, shall be specially sworn to try the question whether the defendant is or is not then sane.
    3.. Where counsel for a defendant on trial for murder in the'second degree, during the progress of such trial suggests to the court that the defendant is not then sane and presents to the court the certificate of a “respectable” physician to the same effect and demands that a special jury be impaneled to try the question whether or not such defendant is then sane it is error for the court to refuse such demand. And such error is not cured by the court thereafter, in its general charge to the jury trying said case, instructing said jury that: “If you think that you ■ have not heard all of the truth in the case, because of defendant’s mental condition and that you believe you are not justified because of that fact in finding him guilty, you may acquit him.”
    (No. 8070
    Decided October 27, 1903.)
    Error to the Circuit Court of Hamilton county.
    This proceeding in error is one taken by the prosecuting attorney of Hamilton county, Ohio, on behalf of the state, under favor of section 7306», Revised Statutes, to obtain a reversal of the order and judgment of the. circuit court of Hamilton county reversing a judgment of conviction against the defendant in error obtained in the court of common pleas of said county at the October term thereof, 1901. The facts, so far as they are necessary to an understanding of the question presented for determination in this case., are stated in the opinion of the court.

      Messrs. Hoffheimer, Morris & Sawyer, prosecuting ■ ■ attorneys, for plaintiff in error, cited and commented upon the following authorities:
    Sections 52 and 53, page 849, Swan & Critchfield’s Revised Statutes; sec. 1, p. 80, 72 O. L.; Nobles v. Georgia, 168 U. S., 406; State v. Reed, 41 La. Ann., 581; Insurance Co. v. Goodin, 10 Ohio St., 557; 1 Bates’ Dig., col. 895; State, v. Arnold, 12 Ia., 483; 16 Am. & Eng. Ency. Law (2 ed.), 622; State v. Kiesewetter, 45 Ohio St., 254; State v. Covington, 29 Ohio St., 117; Gandolfo v. State, 11 Ohio St., 114; People v. McElvaine, 125 N. Y., 596; People V. Hettick, 126 Cal., 425; Laros v. Gommomcealth, 84 Pa. St., 200; secs. 7165, 7240, 7241, Rev. Stat.

      Mr. Thomas F. Shay, for defendant in error, cited .and commented upon the following authorities:

      State v. Peacock, 50 N. J. Law, 36; Freeman v. People, 4 Denio (N. Y.), 9; Bonds v. State, Mart & Yerg, 143; Commonwealth v. Braley, 1 Mass., 103; Commonwealth v. Hathaway, 13 Mass., 299; Devilbliss v. Bennett, 70 Md., 559; 1 Bishop, C. L., sec. 391; 2 Bishop, C. P., 666, 668; 1 Wharton, C. L., 153; People v. Ah Ying, 42 Cal., 18; Laros v. Commonwealth, 84 Pa. St., 211; State v. Harris, 8 Jones (N. C.), 136; Gruber v. State, 3 W. Va., 699; 1 Hale, P. C., 34; 4 Bl. Com., 395; 1 Chit., C. L. (ed. 1841), 761; 1 Russell on Crimes (ed. 1845), 14; Shelford on Lunacy, 467; Stock Non. Cum., 35-36; Stephens, C. L., 3, 4, 280-334; Rex v. Dyson, 7 C. & P., 305; 1 Lew. C. C., 64; Rex v. Pritchard, 7 C. & P., 303; Queen v. Goode, 7 A. & E., 536; Ley Case, 1 Lew. C. C., 239; Crocker v. State, 19 N. W. Rep., 436; 28 Huer, 43; 6 Park., 149; Hawkins v. United States, 96 U. S., 693; 1 Han., P. C., by Curwood, p. 3 and note; 39 and 40 Geo. 3 Ch. 94, No. 2; 1 Russell on Crimes, 15; 4 Harg., 205.
   Crew, J.

The defendant in error, Frederick Rose-lot, was, on the twenty-ninth day of September, 1900, indicted by the grand jury of Hamilton county for the crime of murder in the second degree; on April 1, 1901, he was duly arraigned on said indictment and pleaded thereto, not guilty; thereafter the case-was continued from time to time until December 16,. 1901, when the case came on for trial, and the defendant, Frederick Roselot, and one of his counsel, Mr. Cogan, being then present in court, a jury to try said cause was then and there selected, impaneled, and sworn; on said day after said jury had been impaneled and sworn an adjournment was had and said cause was continued until the following morning, December 17th, at 10 o’clock, A. M.; on December 17th, at 10 o’clock, A. M., the trial of said cause was resumed and the hearing of testimony was begun;, three witnesses were called and examined on behalf' of the state, two of whom were cross-examined by Mr. Cogan, of counsel for defendant; thereupon* and at this point, a recess was taken until 2 o’clock, P. M. of the same day; at 2 P. M., the hour to which a recess had been taken, Mr. Thomas F. Shay, a member-of the law firm of Shay & Cogan, and one of counsel for the defendant, Frederick Roselot, but who had been absent from the city- of Cincinnati and had not theretofore appeared at or participated in said trial,, appeared in court and filed his affidavit, suggesting- and alleging the then present insanity of said Frederick Roselot, and asking “that this cause should be* passed until a reasonable opportunity is afforded to-inquire into the question of the defendant’s present sanity.” Counter affidavits were submitted on behalf of the state tending to establish the sanity of the defendant. Upon consideration of these several affidavits, and after inquiry made by the court of divers persons to ascertain if defendant was in mental condition to proceed with the trial, the court decided and announced as follows: “It is the opinion of the court. at this time that the defendant is able to proceed with the trial, and the trial must go on.” Thereupon the-trial proceeded. On the following morning, to-wit„ December 18, 1901, Thomas F. Shay, counsel for defendant, filed and presented to the court his further-affidavit, alleging and suggesting the insanity of the-defendant, Frederick Roselot, and at the same time-also filed and presented to the court the following; certificate of Dr. John T. Booth, to-wit:

“Cinti, Dec. 18, 1901.
“To the Honorable Wm. Littleford: I, the undersigned, being a respectable physician practicing medicine in the city of Cincinnati, do hereby present to-this court that I have examined the defendant, Fred.. Roselot, and say to this court that he is at present an insane man wholly unable to give his counsel any assistance at present and is wholly unable to give intelligent testimony as a witness in his own behalf on. this trial.
“(Signed) John T. Booth, M. D.”

Thereupon, and before proceeding further with said trial, counsel for defendant demanded that a special jury be impaneled under section 7240, Revised Statutes, “to try whether or not the accused is sane.” The court refused to impanel said jury and directed the-trial to proceed. After hearing the evidence,, arguments of counsel, and charge of the court, the-jury returned a verdict of guilty. Thereafter a. motion for new trial and in arrest of judgment was-, overruled by the court of common pleas;, the case was taken to the circuit court, where the judgment of the common pleas was reversed on the ground as-appears from the journal entry, that there was error-in the record and proceedings of the court of common pleas in this, to-wit: “That the court below, on the application being filed under section 7240, Revised Statutes of Ohio, should have arrested the proceedings of the trial and impaneled a special jury to try said issue.” To procure a reversal of this judgment of the circuit court this proceeding in error is prosecuted.

The principal question presented for determination by the record in this case is: Whether the provisions of section 7240, Revised Statutes of Ohio, which prescribe the mode and provide the means for a trial of the issue of present insanity of a person under indictment, were intended to be and are mandatory and exclusive, or whether the provisions of said section are so far directory only, as that a court may in its discretion adopt some other and different mode of ascertaining the fact as to the sanity or insanity of the accused. Section 7240 is as follows: “When the attorney of a person indicted for an offense suggests to the court in which the indictment is pending, at any time before sentence, that such person is not then sane, and a certificate of a respectable physician to the same effect is presented to the court, the court shall order a jury to be impaneled, to try whether or not the accused is sane at the time of such impaneling; thereupon a time shall be fixed for a trial, and a jury shall be drawn from the jury box, and a venire issued, unless the prosecuting attorney, or the attorney of the accused, demand a struck jury, in which case such jury shall be selected and summoned as required by law; the jury shall be sworn to try the question whether the accused is or is not sane, and a true verdict give according to the law and the evidence; and on the trial the accused shall hold the affirmative; if three-fourths of the jurors agree upon a verdict, their finding máy be returned as the verdict of the jury; and a new trial may be granted on the application of the attorney of the accused, for the causes and in the manner provided in this title.” This statute is explicit in its terms as to the manner in which the question of the insanity of a defendant under indictment, when properly brought to the attention of the court, shall be submitted and determined, and it is peremptory in its requirement that when the insanity of a defendant is, at any time before sentence, suggested to the court in the manner therein provided, that the court shall order a jury to be impaneled to try the question whether or not the accused is sane at the time of such impaneling, and further, it prescribes the form of oath that shall be administered to the jury when so impaneled. While it has long been the humane and settled policy of our law that no man shall be indicted and put upon trial upon a criminal charge, or be called upon to make his defense to such charge in a court of justice, who by reason of insanity is unable to comprehend his position,' or is by reason of his insanity incapable of making his defense, yet in this state prior to the enactment of section 7240, Revised Statutes, the method of determining the question of the sanity or insanity of a person under indictment was ai matter largely within the discretion of-the trial court and had not been made the subject of statutory regulation. Prior to this enactment the court might, in the exercise of its discretion, either submit the question to a jury, or it might itself inquire into and determine the same, without the aid or intervention of a jury. The practice was by no means-uniform, but differed in different jurisdictions. To provide for uniformity in the method of procedure and to secure to the accused the right-to have the question-of his sanity submitted to and determined by a jury specially impaneled and specifically sworn and instructed to try that' particular issue was we think plainly the purpose of this enactment. And such, being its purpose, it must have been intended by the legislature that the method therein provided for the submission and determination of such question should be followed, and should be exclusive, and this whether the question be raised before or during the progress: of the trial, provided only that it be raised at some time before sentence. Whether this enactment without other or further limitation and restriction than is therein contained as to the time when the question of insanity may be raised or presented to the court, is wise and expedient legislation, is a matter with which we are not now concerned, inasmuch as the right to enact such statute is clearly within the legislative authority. The language of the statute is plain and unambiguous, and its provisions mandatory and emphatic ' that when, at any time before sentence, the attorney of a person indicted, suggésts to the court that such person is insane and presents to the court the certificate of a “respectable” physician to the* same effect, such court shall order a jury to be selected and impaneled as therein provided; which jury when so impaneled shall be sworn to try the question, whether the accused is or is not sane at the time such jury is impaneled. Upon the admitted facts of this-case there was, we think, such compliance with the requirements of this statute on the part of defendant’s counsel as to clearly entitle the defendant to avail himself of its provisions and to give to him the right to demand and have impaneled a special jury, particularly sworn, to try and determine the question of his sanity. This privilege and right was denied him by the court of common pleas, and in this the court erred.

It is however insisted by counsel for the state that if this action and judgment of the court of common pleas was erroneous, that nevertheless such.error was not prejudicial to the defendant, and he ought not to be heard to complain thereof, for the reason^ as is claimed, that the court thereafter submitted to the regular jury then trying the case the question of defendant’s sanity, and that such question was submitted under an instruction from the court most favorable to the defendant. That instruction was as follows: “It may be that he (defendant) has been prevented from disclosing matters to you that are of great importance to him. If you think that you have not heard all of the truth in this case because of the defendant’s mental condition and that you believe that you are not justified, because of that fact, in finding him guilty as charged, you may acquit him.” Palpably erroneous and unauthorized as, this charge was, and apparently favorable to defendant as in some respects it certainly is, yet nevertheless the instruction so given is not the equivalent of such instruction as the defendant was entitled to have upon the submission' to a jury of the question of his present insanity. Nor is this charge so favorable to defendant as his counsel would seem to understand and assume. Counsel for the state, in argument, erroneously assume that the jury was told by this charge that if they should find that at the time of the trial defendant was then insane that they must acquit him. But such is not the language of this charge. By this charge the jury was not instructed that if they so found that they must acquit, nor that it would be their duty to acquit, but were told only that in the event they should so find and believe that they might acquit him. This charge cannot, because favorable to the defendant, have the effect to deprive him of the right to complain of the submission of the question of his then present insanity to the trial jury—a jury impaneled and sworn to try only the question of whether or not he was guilty of the crime with which he stood charged and for which he was then on trial. Under this charge the jury was told “that if they thought they had not heard all of the truth in this case, because of defendant’s mental condition, they might acquit him.” Thus the juxy was given to determine whether they had heard all of the truth, and if they should be of opinion they had not,.because of the defendant’s mental condition, they were told they might acquit him. Under this instruction the insanity of defendant could only avail him, as ground for acquittal; and acquittal could be had on that ground only after a finding by the jury that defendant was then insane, and before this jury was authorized to make such finding it was necessary that the whole of their number should concur therein. But the law provides—section 7240, supra—that on the trial of such issue—that of present insanity— that: “if three-fourths of the- jurors agree upon a verdict their finding may be returned as the verdict of the jury.” Defendant through his counsel having xnade proper demand therefor, was entitled to have the question of his insanity submitted to a jury impaneled and sworn to try that question alone, three-fourths of whom could have determined a verdict. The right to such jury having been denied him by the court of common pleas, the judgment of that court was properly reversed by tbe circuit court.

Judgment of circuit court affirmed.

Burket, C. J., Spear, Davis and Price, JJ., concur.


author: Price, J. Daats, J.,

text:
    Davis v. Turner.

      Trial of civil action—General verdict and special findings—Defeated party may move for■ judgment in his favor on special findings—Then for new trial—Sections 5201 and ¡202, Revised Statutes—Prosecution of error—Pleadings and court procedure —Servant injured in coal mine—Question of notice of danger— Duty of master—Contributory negligence.

    1. In the trial of a civil action, wherein the jury returns with a general verdict, special findings on questions of fact under the instructions of the court, the party against whom the general verdict is returned, may first move for judgment in his favor on the special findings, and if his motion is refused, he may then file his motion for a new trial within the time prescribed by law. But where the court fails to pass on the motion for judgment on the special findings, within the time allowed for filing a motion for a new trial, the latter motion may be filed within such time, and before the decision of the motion for judgment. In either case, the motions should be filed and decided in the order indicated. And, while it is irregular practice to file both motions at the same time, as was done in the lower court, no one has been prejudiced thereby in this case, and the order in which the trial court heard and decided said motions, constitutes no bar to a review of its judgment on the special findings.
    2. A party to a civil action, whose motion for judgment on special findings of fact made by the jury in accordance with the provisions of section 5201, Revised Statutes, on the ground that the special findings are inconsistent with the general verdict is overruled, may prosecute error in the circuit court to review and reverse the judgment of the trial court on said motion, and where the circuit court affirms the judgment of the trial court on said motion, but grants a new trial for other reasons, its judgment of affirmance may be reviewed in this court on proceedings in error, without submitting to a retrial of the case in the lower court.
    3. To be inconsistent with the general verdict as contemplated by section 5202, Revised Statutes, it must appear that the special findings are irreconcilable, in a legal sense, with the general verdict; and to justify the court in setting aside or disregarding the general verdict on the ground that it is inconsistent with such special findings, the conflict must be clear and irreconcilable.
    4. A servant employed in a coal mine, to haul cars of coal from the rooms where the coal is mined through an entry to a hoisting shaft, by the -use of a mule and cars, is chargeable with actual notice of every fact which he would have known had he exercised ordinary care to keep himself informed as to matters concerning which it is his duty to inquire; but as it is the duty of the owner or operator of the mine to furnish a reasonably safe entry and to keep it in a reasonably safe condition, the driver of the coal car may rely upon that duty being performed, and he is not required to test and inspect the roof of the entry through which he passes, and is not charged with knowledge of its condition, further than the knowledge he would'ordinarily obtain in the proper discharge of the work he is employed'to perform. If under such circumstances, while in the performance of his duty, the servant is injured by slate falling from the roof of the entry, on account of the negligence of the mine owner, or operator, he may recover. Wellston Coal Co. v. Smith, 65 Ohio St., 70, approved and followed.
    (No. 8325
    Decided October 27, 1903.)
    Error to the Circuit Court of Jackson county.
    The issues between the parties in the trial court were joined upon the second amended petition, the answer of plaintiff in error, and tbe reply thereto.
    Tbe. plaintiff below, claimed a right of recovery against the defendant, for damages resulting from a personal injury received in the coal mine of the defendant, on the twenty-seventh day of September, 1900. By the averments of the second amended petition it is disclosed that at the above date, the plaintiff below, was in the employ of .the defendant as a driver, in said mine, at an agreed price per day, and that such employment had continued for about two weeks before the injury. The plaintiff’s duty was to haul coal in cars drawn by a mule, from the rooms of a portion of the miners who mined the coal, to a hoisting. shaft. While passing through a main entry of the mine in the discharge of his duties as such driver, and without negligence on his part, he was injured by slate falling upon him from the roof of said entry, •directly over the track placed therein along which he was at the time passing in the discharge of his duties.
    The injuries alleged are four fractures of the jaw, •and the loss of several teeth, which affected his ability to take food, and also his powers of speech, which injuries he says are permanent.
    The entry wherein the plaintiff was injured is alleged to be about one-half mile in length, from eight to ten feet in width, and on an average, about four and one-half feet in height. It is further alleged, that above the track along Avhich plaintiff was required to pass with the cars of coal, and at a point about fifty yards towards the hoisting shaft, there was loose and defective overhanging slate in the roof of the entry, Avhich rendered the passage that way dangerous, by reason of its liability to fall, of which dangerous condition the plaintiff had no knowledge at any time, nor did he have equal opportunity or means with the defendant of knowing the same.
    It is then alleged that the defendant himself, and by his agent in charge and control of the mine, well knew of the dangerous and unsafe condition of the entry where plaintiff was injured; or, if he did not actually know of the same, he could and would have known of it by the exercise of ordinary prudence and «are before the plaintiff was injured, and in- time to have prevented the injury by securely propping, post- . ing,, or securing the roof of the entry.
    The negligence charged is that with knowledge or means of knowledge of the unsafe condition of the roof of the entry, defendant failed and neglected to securely prop, post, or remove the overhanging slate.
    The damages laid consist in loss of time, incurring medical and dental bills, and general damages-^in all |10,175.35.
    The foregoing is the substance of the second amended petition.
    The answer admits that the defendant operated the coal mine at the time of the injury; that plaintiff was in his employ, and that his duties were about as alleged by him, and that he was injured about the time and in the entry as described, but it denies each and all the other allegations of the petition. It avers that the plaintiff was not without fault, “but contributed to whatever injury he received by his own careless and. negligent driving of the mule and management of the car, whereby one or the other .was driven or thrown against certain props and posts which were then and there used to support the roof of said entry, and displaced them, and knocked them down, and thereby permitted certain caps and portions of the roof of said entry to fall upon plaintiff to his injury * * >>
    The reply denies all the allegations of fault and contributory negligence made in the answer.
    On the issues joined the case went to trial to a jury. On request of the defendant, the court submitted to the jury for answer, certain interrogatories, to be answered and returned as answered, with the general verdict. The interrogatories and answers are:
    “The jury in the above cause are required to make answer to the following interrogatories, and return-the same as their special verdict:
    “1. About how often did plaintiff, while at work for defendant, pass along the entry at the point where he was injured? Answer. About three hundred and sixty times.
    “2. Did plaintiff, while working in said entry,, make any endeavor to ascertain the condition of the-entry through which he passed? Answer. No.
    “3. Did plaintiff, while at work in said entry, take any notice of or pay any attention to the roof of the same, or observe that the same was propped, and cross-timbers used in it for the protection of the roof?" Answer. No.
    “4. Was the defect in the roof of the entry at the point where plaintiff was injured obvious, and noticeable to a person going in or out of such entry? Answer. Yes.
    “5. Was it under the evidence in this cause the duty of plaintiff, while driving for defendant, to notice, examine or pay any attention to the roof of the entry in which he was at work? Answer. No.
    “John C. Steele, Foreman.”
    The jury returned a general verdict for the plaintiff in the sum of $1,481. The defendant filed a motion for new trial, containing among other grounds,, that the court erred in refusing to give the jury certain special instructions asked by the defendant; that the court erred in the general charge; and “that the general verdict is inconsistent with the special verdict.” At the same time the defendant moved for judgment in his favor upon the special findings of the jury, notwithstanding the general verdict. The court overruled both motions and the defendant excepted.
    Judgment was rendered on the general verdict, and defendant prosecuted error in the circuit court, assigning among other errors committed by the trial court, that it “erred in overruling and not sustaining the motion of defendant below for a judgment in his favor upon the special verdict, notwithstanding the general verdict for plaintiff.”
    The circuit court found and decided “the court of common pleas erred in refusing to give to the jury special instructions numbered four and seven, as requested by plaintiff in error, defendant below,” and found no other error apparent on said record.
    For the errors found, the judgment of the court of common pleas was reversed and the cause remanded for such further proceedings as may be authorized by law.
    The plaintiff in error excepted to the decision of the circuit court Tor the reason, that it did not find and adjudge “that the court of common pleas erred in overruling the motion of plaintiff in error, defendant below, for a judgment in his favor upon the answers made by the jury to the interrogatories submitted to be answered by them, and in not rendering judgment in favor of plaintiff in error upon said interrogatories as the court below should have done.”
    Without waiting for a new trial of the case in the court of common pleas, the plaintiff in error prosecutes error in this court to reverse the circuit court for not giving him judgment on the answers of the jury to said interrogatories.

      Mr. J. M. McOillivray, for plaintiff in error.
    I. That answers to interrogatories, or special verdict, when inconsistent with the general verdict, control, and that the court may enter judgment upon them is fixed in Ohio by statute. Section 5202, Revised Statutes.
    The interrogatories need only be of such character as that some ultimate material fact may be inferred from them as a matter of law. Railroad Co. v. Hawkins, 64 Ohio St., 391; Gale v. Priddy, 66 Ohio St, 400.
    II. This being an action for damages by a servant against a master, there will be no question but that the servant assumes all the risks of danger that follow as a necessary incident to his employment. Wood on Master and Servant, sec. 326; Coal Co. v. Estievenard, 53 Ohio St., 44; Railway Co. v. Knittal, 33 Ohio St., 468; 2 Thompson on Neg., sec. 184, sec. 1019.
    III. The servant is conclusively held to appreciate all dangers which may arise from defects of which he has, or in the exercise of due care might have, knowledge. Railway Co. v. McCurdy, 66 Ohio St., 118; Coal & Car Co. v. Norman, 49 Ohio St., 598; Hesse, Admx., v. Railroad Co., 58 Ohio St., 167.
    IY. The charge of negligence in this cause is that “there was, at or near which said point he was injured as aforesaid, loose and defective overhanging slate, in the roof of said entry (the same roof being composed of slate) which at that point made traveling along said entry unusually hazardous and dangerous, by reason of the liability of said loose and defective slate to fall and injure any one who might be passing thereunder, and that plaintiff’s injuries were the result of a fall of a portion of said loose and defective overhanging slate, and that said defendant carelessly and negligently allowed the same to be and remain in the roof of the entry and over the track thereof aforesaid, and carelessly and negligently failed to securely prop, post or remove the same, well knowing that plaintiff, in the discharge of his duties as such driver, would be compelled to pass along said, entry under the same.”
    While there is a well-defined distinction between assumption of risk and contributory negligence, it. cannot be questioned but that if said entry roof was defective and dangerous, and plaintiff went to work therein with knowledge of its condition, or continued to work after discovery of condition, without exacting a promise of repair from his employer, the danger of' injury from a fall of slate was an assumed risk in his-employment. On the other hand, if the entry roof was. out of repair and dangerous, and plaintiff while employed in hauling coal through it, made no endeavor to ascertain its condition, did not notice or pay any attention to the entry roof or observe that the same-was propped and cross-timbered, the defect being open and obvious to one passing in or out of said entry, he was guilty of such negligence as precludes his. recovering.
    If this defect was obvious and noticeable to a person, going in or out, it should have been observed by plaintiff in some of, the three hundred and sixty times he-passed through, and he is “held to appreciate the-dangers which may arise.”

      Mr. Elmer C. Poicell, for defendant in error.
    1. The petition in error should be dismissed because-error is not predicated upon a final judgment or order. Young v. Shallenberger, 53 Ohio St., 291; Fitzpatrick v. Papa, 89 Ind., 17; Hollenbeck v. Marshalltown, 62 Ia., 21; McCrum v. Corby, 15 Kas., 112; State v. Templin, 122 Ind., 235; Andrews v. Youngstown, 35 Ohio St., 218; State v. Behimer, 20 Ohio St., 572; Insurance Co. v. Shillito, 15 Ohio St., 559; Emerg's

      Sons v. Bank, 25 Ohio St., 360; Thompson on Trials, secs. 2696, 2701.
    2. There is not under rule 4 of the practice in the Supreme Court enough of the record filed or printed so that the court can intelligently pass upon the question as to whether or not judgment should have been rendered upon the special findings. It is necessary that the bill of exceptions containing the evidence should be before the court, and it has not been filed müch less printed. Woodrow v. Bartles, No. 8363, Sup. Ct.; Bevins v. Smith, 42 Kas., 250; Miller v. Southworth, 5 Circ. Dec., 101; 10 C. C. R., 572; Myers v. Jenkins, 63 Ohio St., 101; Townsend v. Harrison, 58 Ohio St., 398; Iron & Steel Co. v. Keen, 65 Ohio St., 606 (unreported).
    3. On the assumption that this court has jurisdiction of the cause and that sufficient of the record is before the court that it can pass upon the question properly and satisfactorily, we earnestly insist that there is no inconsistency such as is recognized by the law between the special findings and the general verdict. Railroad Co. v. Hawkins, 64 Ohio St., 391; Gale v. Priddy, 66 Ohio St., 400; Railway Co. v. Bateman, 8 Circ. Dec., 220; 16 C. C. R., 162.
   Price, J.

The record in this case presents two questions which are worthy of consideration, the first of Avhich is a question of practice.

The plaintiff in error was defeated in the trial court, his motion for new trial overruled and judgment rendered on the general verdict returned by the jury. Before judgment and' contemporaneous with the motion for new trial, he asked judgment upon the answers to certain interrogatories submitted to the jury by the court. This was refused, and the case was .taken on error to the circuit court, where the judgment of the trial court was reversed, on the sole ground, that there was error in refusing to give certain instructions requested by the defendant, and the cause was. remanded for further proceedings.

The circuit court refused to render judgment for plaintiff in error on the special findings of the jury, and overruled his motion for that purpose. There has been no retrial in the court of common pleas, and we are asked to review and reverse the decision of the circuit court, overruling the motion of plaintiff in error for judgment on the special findings of the jury.

• Has he a right to prosecute such proceedings in this court? This is our first question for consideration. The defendant in error says there is no basis for this proceeding, and no judgment to reverse, because the circuit court reversed the judgment of the common pleas and remanded the cause-to that court for further proceedings; that as a result of the reversal a new trial was granted and the special findings were vacated with the general verdict. This claim was made heretofore in this court by motion to dismiss the petition in error, and it is still urged and relied upon.

The particular questions of fact appear to have been Submitted by the trial court without objection. At all events, they were submitted and answered by the jury and became a legitimaté part of the record. As such the judgment of the trial court was invoked upon them by the motion of defendant below, and that court exercised its judgment, thereon in overruling the motion, to which exception was entered. In the circuit court he was not content with a reversal of the judgment on the grounds stated, but relied and still relies on the special findings as being inconsistent with, the general verdict. And if the special findings; are inconsistent with the general verdict, and are sufficient in their legal effect to defeat a recovery, there-can be no doubt that he was entitled to judgment in the trial court. If so, the circuit court, when it reversed the judgment of the trial court, should have-rendered the proper judgment instead of remanding-the case for a new trial. It seems entirely clear,, that if the special findings are inconsistent with the-general verdict and entitle the defendant below to a judgment, he would be justified in standing upon, them in the trial court, and also in the circuit court,, regardless of the privilege of a new trial, rather than be compelled to abandon what he had fairly obtained and incur the labor and expense of a retrial of thecáse. ' Otherwise the submission of special questions; to the jury is but an idle and fruitless ceremony.

But in this case the circuit court agreed with the-trial court and refused the judgment demanded. Is. there no direct remedy in' this court to review the decision of that court, and correct its error, if any has been committed in overruling the motion for judgment? If not the party has lost a valuable right which the law has furnished him for a very clearly expressed purpose; and it is lost, it is said, because the circuit: court set aside the general verdict and granted a new trial. However, it did more. It decided that plaintiff' in error was not entitled to judgment on the special findings, which he claimed are inconsistent with and should control the general verdict.

We discover no good reason why he does not have-a direct remedy in this court to review the circuit court on that branch of the case. This view is founded upon-the unequivocal meaning of sections 5201 and. 5202, Revised Statutes.

In accordance with the former section, the court instructed the jury to find specially upon the particular questions of fact contained in the record; Whether all were proper questions, we need not now determine. They were submitted and answered. By the latter section it is provided that: “When the special .finding' of facts is inconsistent with the general ver•dict, the former shall control the latter, and the court may give judgment accordingly.” If the special findings are such as should control the general verdict, it becomes the duty of the trial court to enter the .judgment which such “control” would clehrly indicate; and in this we think there is no room for the exercise of mere discretion. Moreover, wé regard the decision of the circuit court, overruling the motion for judgment on the special findings as a judgment determining the rights of the parties in that behalf, and a proper predicate for proceedings in error. See section *6710, Revised Statutes.

As authorities against the views here expressed, counsel for defendant in error cites and relies upon The following cases: Fitzpatrick et al. v. Papa, 89 Ind., 17; Hollenbeck v. The City of Marshalltown, 62 Ia., 21; The State ex rel. Downard v. Templin, 122 Ind., 235; McGrrnn v. Corby, 15 Kas., 112; Insurance Co. v. Shillito, 15 Ohio St., 559; Andrews v. Youngstown, 35 Ohio St., 218. We have carefully examined •each of these cases, and are unable to find a rule in •either that is contrary to our position.

In Fitzpatrick et al. v. Papa, supra, it appears that .appellants urged their right to judgment in the appellate court, on answers to interrogatories at the first' trial of the cause in the lower court. No ruling seems to havé been asked or made at that trial with reference to such interrogatories, but the court set aside the general verdict and granted a new trial. The parties had their new trial. From the judgment rendered on the second trial, appeal was taken, and appellant asked for judgment on the findings made on the first trial. It was easy to conclude and hold, that-having submitted to a second trial, the party waived his rights on special findings made at the first trial. It was upon that state of the record the appellate court made its holding.

Hollenbeck v. The City of Marshalltown, supra, was an action to recover for injuries sustained by reason of a defective sidewalk. The first trial resulted in a verdict for the plaintiff, which was set aside and a new trial granted. The second trial resulted in a verdict . for the plaintiff. On this, the second trial, the jury in answer to a special interrogatory, found that the defect in the sidewalk was not so open and notorious as to render the city liable. It fairly appears that the city asked judgment on this special finding and also for a new trial. The trial court refused judgment on the special finding, but granted a new trial. A third trial was had and the plaintiff again recovered. From the judgment rendered on the last verdict appeal was taken by the city, and it was there insisted that the city was entitled to judgment on the special finding made at the second trial. This the court denied, as well it could, because by submitting to a retrial after the finding had been made, the city waived its rights thereunder.

The State ex rel. Downard v. Templin, 122 Ind., supra, contains no holding pertinent to the present inquiry.

The same may be said about McCrum v. Corby, 15 Nan., supra. There, when the motion for new trial was granted, nothing was said about the special findings, , and no one sought any order of court respecting them. The appellate court say in that case: “Counsel claim that as no motion was made to set them aside, they still stand and must control any subsequent verdict, and therefore a new trial is unnecessary and improper.” The court denied the correctness of the proposition.

In Insurance Co. v. Shillito, supra, the superior court at special term, upon the facts found by it, rendered judgment against the plaintiff. The court at general term reversed the judgment and remanded the cause to the special term for new trial. The insurance company prosecuted error in this court to reverse the judgment at general term on the ground “that there was no error in the proceedings of said court at special term.”

It is clearly discerned, that the office or function of special findings of a jury are quite different from the findings of a court to which a cause is submitted without the intervention of a jury. The difference is both natural and statutory. Besides this observation, the question we have before us was not before the court in that case, either in form or substance. Nor does the case of Andrews v. Youngstown, supra, shed any light on this controversy. The court there held that “where a judgment is reversed for error accruing on the trial, the party against whom the reversal is had, by voluntarily submitting to a new trial which results in a verdict and judgment, waives, his right to prosecute a petition in error to reverse the judgment of reversal.” The latter holding is in entire accord with our construction of the Indiana and Iowa cases cited. We therefore hold that the plaintiff in error is properly in this court and that it has jurisdiction to hear and determine his assignments of error.

Incidental to the argument of the foregoing subject, counsel for defendant in error, assert as a rule of practice, that plaintiff in error is without remedy on error, because he filed the motions for new trial and for judgment on the special findings simultaneously, and that both were decided by the trial court at the same time, and it so appears of record. It also appears that in one judgment rendered by the circuit court, it granted a new trial on the ground that certain instructions were refused, and also adjudged that there was no error compaitted in overruling the motion for plaintiff in error in the special findings.

We presume that the point intended to be made is, that the judgment of the circuit court being thus joint in form, the plaintiff in error cannot so divide it as to accept the benefits of a judgment for new trial, and also prosecute error to the balance of the judgment. The argument on this subject is very obscure, and the reasons back of it, are equally obscure.

The plaintiff in error did not submit to a new trial and avail himself of that relief, but proceeded to this court to test his right to judgment on the special findings. We can discover no trace of prejudice to any one in the exercise of this right arising out of the fact that both motions were filed and decided at the same time; and the condition of the record in that respect is no bar to the present proceeding.

It is proper here to add, what we regard as the proper order to be observed in cases where it is desired -to'file one or both of the motions referred to, although it is not adopted as an absolute or invariable rule to govern under all circumstances, but as the better and general rule of practice. We therefore think that in the trial of a civil action, wherein the jury return with a general verdict, special findings on questions of fact under the instructions of the court, the party against whom the general verdict is returned, may first move for judgment in his favor on the special findings, and if his motion is refused, he may then file his motion for a new trial within the time prescribed by law. But where the court fails to pass on the motion for judgment on the special findings., within the time allowed for filing a motion for new trial, the latter motion may be filed within such time, and before the decision of the motion for judgment. In either case, the motions should be filed and decided in the order indicated.

We now come to the second inquiry in the case. Is the plaintiff in error entitled to judgment on the special findings made by the jury? Is the special finding of facts inconsistent with the general verdict?

The provision of our statute regarding special findings, obtains in substance, in many, if not all, the states having a code of civil practice. It is found also in the statutes of some of the states where a code of civil procedure does not prevail, as in Indiana. The object of such provision has been defined by the appellate courts of several of such states, and when we clearly understand the purpose to be served, we will be better enabled to say whether the findings in this record are inconsistent with the general verdict. It was said by Justice Hanna of Indiana in Buntin v. Rose, 16 Ind., 209, that: “Before the enactment of our statute, enabling a party to ask that a jury shall respond to interrogatories, it was difficult to have placed upon the record of a trial, the component parts of, or elements which entered into and formed the verdict of .a jury. This was. felt and considered as operating injuriously in many instances, because of the current of decisions in this court for many years to the effect that a verdict in a civil case should not be disturbed on the evidence where there was proof tending to sustain it.”

In Morrow v. Commissioners, 21 Kas., 484, the supreme court of that state, through Justice Brewer says on page 503, that: “The main object of special questions is to bring out the various facts separately, in order to enable the court to apply the law correctly, and to guard against any misapplication of the law by the jury. * * * ”

In Davis v. Town of Farmington, 42 Wis., 425-432, the supreme court of Wisconsin is of opinion that: “By requiring the jury to pass separately and specifically upon each controverted question of fact material to the issue, a more careful and methodical consideration of the testimony by the jury may be secured, and the precise grounds upon which the judgment is based will be disclosed.” And in Moss v. Priest, 19 Abb. Pr. (N. Y.), the New York superior court say on page 317: “The object of the provision in regard to special findings was to enable the court to leave the case to the jury generally, but to control their general verdict by findings which would render a second trial unnecessary in cases where no exceptions were taken, or rather to prevent exceptions to the charge. * * *”

In connection with these authorities, we keep in mind another proposition, that the special finding is inconsistent with the general verdict only when the two are irreconcilable. Elliot, C. J., in Railway Co. v. Beyerle, 110 Ind., 102, makes the very strong declaration that: “Nothing will be presumed in aid of the answers to the interrogatories, nor will they control the general verdict unless they are invincibly antagonistic to it.”

In Woollen v. Wishmier, 70 Ind., 108, the supreme court of Indiana declare that: “It must be remembered that a special finding must be irreconcilably inconsistent with tbe general verdict, before tbe latter can be set aside and tbe former substituted in its place.” See also Amidon v. Gaff, 24 Ind., 128-130; Railroad Co. v. Stout, Admr., 53 Ind., 143. In the latter case it is held: “Special findings in answer to interrogatories over-ride the general verdict only when both cannot stand; and the supreme court will not direct a judgment in favor of a party against whom the general verdict has been rendered, unless this antagonism is apparent on the face of the record and the special finding cannot, by any hypothesis, be reconciled with the general verdict.”

- To same effect are Alexander v. University, 57 Ind., 466; Murray v. Phillips, 59 Ind., 56; Railroad Co. v. Barton, 61 Ind., 293; Hershman v. Hershman, 63 Ind., 451. See also Bills v. The City of Ottumwa, 35 Ia., 107, where it is held that: “To justify the court in setting aside a general verdict on the ground that they are inconsistent with the special findings, the conflict must be irreconcilable.”

The latter statement of the rule seems to be the conservative judgment of the courts passing on the question.

Are the special findings disclosed in this record inconsistent with the general verdict? We think not. What are they?

1. The defendant in error passed the entry where he was injured about three hundred and sixty times.

2. He did not, while working in the entry make any endeavor to ascertain the condition of the entry through which he passed.

3. He took no notice of nor did he pay any attention to the roof of the entry, or observe that the same was propped, and cross timbers in it for the protection of the roof.

4. The defect in the roof of the entry at the point where plaintiff was injured was obvious and noticeable to a person going in or out of such entry.

5. It was not the duty of the plaintiff while driving for defendant to notice, examine, or pay any attention to the roof of the entry in which he was at work.'

These in substance are the special findings.

It was no part of the duties of the plaintiff below to inspect or repair the entry to the mine. His employment was to drive the mule hauling cars of coal from the rooms where mined to the hoisting shaft. It is .true the jury found that he made no endeavor to ascertain the condition of the entry through which he passed, and that the defect in the roof of the entry was “obvious and noticeable to a person going in or out of such entry.” There is no finding that he did notice its condition; or, that he could, by the exercise of ordinary care, while passing through the entry, have discovered the defect. The person mentioned in the finding to whom it would be noticeable, might be an expert or one whose duty it was to inspect and repair such defects. To such a person a defect in the roof might be readily apparent, because its discovery formed a part of his duty, while it would not be obvious or noticeable to one whose duties were entirely .different, and who had primarily the right to rely upon tne operator of the mine to keep the entry in reasonably safe condition.

We think this branch of the case is ruled by the doctrine laid down by this court in Wellston Coal Co. v. Smith, 65 Ohio St., 70. The fourth section of the syllabus is: “In the business of mining coal it is the duty: of the owner or operator of a mine to furnish reasonably safe entries for the ingress and egress of those employed in such mine, and to keep such entries. ,n a reasonably safe condition, and the miners may rely and presume that this duty has been properly performed.”

It is also held in that connection, that: “It is the duty of the miner, as to such entry, to use ordinary care for his own safety in view of what he knows or ought to know as to the condition of such entries; and he ought to know every fact which he would know if he exercised ordinary care to keep himself informed as to matters concerning which it is his duty to inquire in the employment in which he is engaged.” On page 82, through Burket, J., this court says: “If the plaintiff knew the roof of the entry to be unsafe, and entered notwithstanding such knowledge, he was negligent and ought not to recover; but as it was the duty of the mine boss to furnish a reasonably safe entry,, and to keep it in a reasonably safe condition, the miners could rely upon that duty being performed, and were not required to test and inspect the roof of the entry themselves and were not charged with knowledge of its unsafe condition, farther than the knowledge they would ordinarily obtain in the proper discharge of the work they were employed to perform.”

We think this covers the whole law applicable to-the special findings, and Ave need not discuss them further. The judgment of the circuit court is affirmed.

Judgment affirmed.

Burket, C. J., Spear, Shauck and Crew, JJ., concur.

Daats, J.,

dissenting.

I cannot bring myself to concur in the last paragraph of the syllabus in this case, or in the judgment-It seems to me that both are illogical. In the syllabus it is said that: “A servant employed in a coal mine, to haul cars of coal from the rooms where the coal is mined through an entry to a hoisting shaft, by the-use of a mule and cars, is chargeable with actual notice of every fact which he would have known had he exercised ordinary care to keep himself informed as to matters concerning which it is his duty to inquire.” This is sound law, and since the jury in its. answers to special interrogatories found that the' plaintiff had gone in and out through the entry three' hundred and sixty times, and that while working in. the entry he made no effort to ascertain the condition, of the roof thereof and took no notice of and paid no attention to the roof of the entry nor the support, thereof, and that the alleged defect was obvious and noticeable to a person going in and out of such entry, it seems to be conclusively established that he was. chargeable with actual knowledge of the defect; for-under such circumstances he could not be ignorant of that which was “obvious and noticeable” without, the want of ordinary care. Yet, in the face of that, which, to the average mind, must seem to be an irresistible inference from the law and facts as found, it is. held that the plaintiff may nevertheless put behind him all knowledge or its equivalent, ability to know if he had looked, and blindly rely on the master tO' perform his duty to furnish him a safe place in which to work; and that when! he is injured through the negligence of the master, he may recover therefor notwithstanding he has assumed the risk with full knowledge, or has recklessly refused to see an obvious thing. That is precisely the effect of the judgment in this, case, however the opinion may be worded, although ! ■do not think that I have misconstrued the language used. It seems to me that this ruling is contrary to ¡all precedent and especially to the law as laid down in Coal & Car Co. v. Norman, 49 Ohio St., 598, and ■Coal Co. v. Estievenard, 53 Ohio St., 43. It is true that the plaintiff avers in his amended petition that he was without knowledge of the defect, but the jury has expressly found that he had such knowledge or the •equivalent thereof.

It also seems to me to be both indefensible and misleading to indicate that this judgment follows Wellston Coal Co. v. Smith, 65 Ohio St., 70. I did not concur in that opinion in its entirety; but I never understood the ruling in that case as justifying a miner either in ignoring his actual knowledge, or in neglecting to know when knowledge was perfectly “obvious .and noticeable;” for in this case the controversy is not about occult things which might require expert tests to discover. Under the facts specially found by the jury, this was not a case requiring “tests” or “inspections” in order to discover the danger. Nor do I think the court so understood the cited case, for on page 82, Burket, J., says: “If the plaintiff below knew the roof of the entry to be unsafe and entered notwithstanding such knowledge he was negligent and ought not to recover;” and in the syllabus of the case it is held that: “It is the -duty of a miner as to •such entry to use ordinary care for his own safety in view of what he knows or ought to know as to the condition of such entries;” and surely he “ought to know” when he could know by mere looking. It is said in the case at bar that the jury found that it was not the plaintiff’s duty to notice defects in the roof of the entry or in the supports thereof; but in a legal •sense the jury could not find that, when the law requires that the plaintiff ought to know everything concerning his own safety which he could learn by the exercise of mere ordinary care. The special findings are absolutely irreconcilable with the general verdict, because they plainly indicate either, (1) assumption of risk with actual knowledge of the defect, or (2) want of ordinary care, or (3) both assumption of risk with knowledge of the defect and want of ordinary care. For the reasons here briefly outlined I entertain the opinion that the plaintiff in error is entitled to judgment on the special findings notwithstanding the' general verdict.