author: By the Court.

text:
    The State of Ohio v. Emery.

      Adulteration of food and drugs — Reference of law to U. S. Pharmacopoeia is to the edition in use when law enacted.

    1. The reference in section 3, of the pure drug statute (87 Ohio Laws, 248), to the United States Pharmacopoeia, is to the edition in general use when the statute was enacted, which was that of 1880.
    2. The sale of a drug which was equal to the standard of strength, quality, and purity laid down in that edition, is not rendered unlawful because it is below a higher standard laid down in a subsequently revised edition, though the latter edition was in general use when the sale was made.
    3. A copy of the subsequent revised edition is not competent evidence on the trial of a prosecution under the statute.
    (Decided December 1, 1896.)

      Exceptions by the prosecuting attorney to the ruling of the Court of Common Pleas of Lucas county.
    The state instituted a prosecution in a justices’ court, against Emery, for having sold, on the 15th day of October, 1895, a drug known as cochineal, that was below the standard required by section 3, of the act of April 22, 1890 (87 Ohio Laws, 248), which provides that:
    “An article shall be deemed to be adulterated within the meaning of this act — (a) In the case of drugs, (1) If sold under or by a name recognized in the United States Pharmacopoeia, it differs from the standard of strength, quality or purity laid down therein; (2) If, when sold under or by a name not recognized in the United States Pharmacopoeia, but which is found in some other pharmacopoeia or other standard work on materia medica, it differs materially from the standard of strength, quality or purity laid down in such work; (3) if its strength, quality or purity falls below the proposed standard under which it is sold.”
    The United States Pharmacopoeia is a book generally in use by pharmacists and druggists in the United States, and recognized as a standard authority. The edition of the book in use when the act above referred to was passed, and when it took effect, was the edition of 1880. The drug sold by the accused was equal to the standard of strength, quality and purity laid down in that edition. In 1890, the book was revised by an association or cong’ress of pharmacists of the United States and Canada, A new and revised edition known as the edition of 1890, was published in 1893, which purports to be official from January 1, 1894. This edition made numerous changes in that of 1880J among others, raising the standard of cochineal, so that the article sold by the accused was inferior to that standard; and being so, the state claimed the sale was in violation of the statute. On the trial the state was permitted, over the objection of the accused, to give in evidence a copy of the edition of the Pharmacopoeia published in 1893; and for the admission of that evidence, the court of common pleas reversed the sentence passed on the accused, he having’ been convicted before the justice. To this action of the court the prosecuting attorney took the bill of exceptions which is now submitted to the court, according to the provisions of sections 7305 and 7306 of the Revised Statutes.

      F. S. Monnett, Attorney General, and James M. (& Walter F. Brown, argued in support of the exceptions.
    The language of the statute- is, “if when sold under or by a name recognized in the United States_ Pharmacopoeia.” The legislature, undoubtedly, knew that the “United States Pharmacopoeia” had borne that name for more than sixty years; and it doubtless knew that every ten years it was revised, and that its revision would continue, but that during all its past revisions, its title had not changed; it continued .to be the “United States Pharmacopoeia.” And the legislature knew when a new revision appeared, it took the place of the old one, and was, so long as it was in force, “the United States Pharmacopoeia,” and the only “United States Pharmacopoeia,” and that by the language “when sold by a name recognized in the United States Pharmacopoeia, ”" the legislature clearly meant the United States Pharmacopoeia in force at the time the sale was. made.

      The meaning of a word should first „ be determined, if possible, from the section in which it is used. Spencer v. Metropolitan Board of Works, 22 Ch. Div., 162; Blackwood v. Reg., 8 App. Cas., 94.
    It is a canon of interpretation, that the legislative purpose, and the object aimed at, are to be borne in mind, and that language susceptible of more than one construction, is to receive that which will bring it into harmony with such object and purpose, rather than that which will tend to defeat it. Sedgw. on St., p. 359. Amer. & English Encyclopedia of Law, No. 23, p. 319, and authorities cited.
    The words of a statute are to be construed with reference to the subject-matter of the enactment and to the subject sought to be attained. Rex v. Hall, 1 B. & C., 136 and Amer. & Eng. Encyclopedia of Law, vol. 23, p. 332, and authorities cited.
    In conformity with the rule that the meaning of words is to be adapted to the particular subject-matter in reference to which they are used, “general words are to be restricted or expanded to suit the subject-matter to which they are applied.” Reiche v. Smythe, 13 vol. U. S., 162; 22 vol. U. S., 492; Rex v. Gardner, Cowp. 79. Amer. & Eng. Encyclopedia of law 20, 23, p. 323.
    Where, to construe the words of a statute technically, would render it inoperative, but to construe them according to their popular signification would give it a reasonable operation, the latter construction must prevail. Penn. R. R. Co. v. Pittsburgh, 104 Pa. St., 522.
    Contemporaneous circumstances to be considered. Carolina Savings Bank v. Evans, 28 S. C., 521.

      Courts, will, if the language will reasonably permit it, so construe a statute that the whole may stand, and be effective. “To this end words have been .supplied or rejected, their collocation altered, and many dates and' figures corrected.” Amer. & English Encyclopedia of Law, vol. 23, p. 364-5. So as to penal statutes. U. S. v. Hartwell, 6 vol. (U. S.) 395; 134 U. S., 624.

      King <& Tracy, for defendant.
    Our proposition of law is that the legislature cannot adopt as a part of its laws, and especially as a part of the penal laws of the state, and incorporate into such laws, a book or work which is not yet in existence.
    The legislature at the time this act was passed did not know, or could not know what would be contained in the Pharmacopoeia of 1890. The book might have been compiled and published by ignorant or vicious persons. Mistakes might have occurred, and for all we know have occurred, in the 1890 edition, and yet it was sought to convict this defendant in error under the penal laws of this state for violating the provisions of the Pharmacopoeia of 1890, which was not in existence at the time the statute was passed.
    It certainly is not necessary to cite authorities to the proposition that the power delegated to the legislature of Ohio to enact laws cannot be delegated by that body to any other person or association.
    Article II, section 1 of the Ohio Constitution. Section 26 of the same article; Railroad v. Commissioners, 1 Ohio St., 77; O'Neil et al. v. American Ins. Co., 166 Pa. St., 72; Anderson v. Manchester Fire Ins. Co., 63 N. W. Rep., 241.

      If the courts hold that the legislature has no power to delegate authority such as that specified in the above cases to state officials, how much less can the legislature delegate power to irresponsible bodies, conventions and congresses not held under authority of the state, or indeed of any state or of the United States.
    The construction of this law, contended for on behalf of the state, would render it unconstitutional.
    The law is constitutional if given the construction contended for by the defendant in error below, namely that the edition of the Pharmacopoeia which was in existence at the time the law was passed is the edition upon which the prosecution must rely.
    If the legislature desires to adopt the new Pharmacopoeia as the standard it is only necessary for it to amend the law and so state. This it will no doubt do if there is any good reason for doing so. Until it does so the edition of 1880 is the only Pharmacopoeia which can be introduced in evidence in prosecutions in this class of cases.
   By the Court.

The reference in the statute to the United States Pharmacopoeia, could be to no other than the edition of the book in use and recognized when the statute was enacted and went into effect, which was the edition known as that of 1880. It is not to be supposed that the legislature intended to adopt, by reference, as part of the penal laws of the state, an edition of the book not then in existence, and of the contents of which the legislature could then have no knowledge. The drug, with the sale of which the accused was charged, was recognized in the edition of 1880, by the name under which it was sold, and a standard of strength, quality and purity therein laid down. It is not claimed the drug sold was below that standard; and the sale could' not be rendered unlawful because it is below a higher standard laid down in a subsequently revised edition of the book, though that edition' was in use at the time of the sale. To hold that the sale could thus be made unlawful, would be equivalent to holding that the revisers of the book could create and define the offense, a power which belongs to the legislative body, and cannot be delegated.

Exceptions overruled.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    The P. C. C. & St. L. R’y Co. v. Reynolds.

      Rights of passenger — Duty of common carrier — Recovery for tort and not merely breach of contract, established by state of facts.

    Where a person has a ticket, purchased from a company engaged in the business of a common carrier of passengers entitling him to be carried from a certain station to another on the line of its road, and is good only on trains stopping at his destination, is, by the fault of the company’s station agent, induced to take a train that does not, under the schedule stop at such place, and as a consequence, is ejected by the conductor on calling for his ticket, and before reaching his destination, such facts show a right in the passenger against the company to recover as for a tort, and not merely for a. breach of contract.
    (Decided December 8, 1896.)
    Error to the Circuit Court of Warren county.
    The action below was a suit brought by the plaintiff to recover damages of the defendant for wrongfully ejecting him from one of its trains. The issues having been made up, the case was tried to the court on an agreed statement of the facts. The statement is as follows:
    “On the 4th day of July, 1891, the plaintiff and his son, aged 12 years, at South Lebanon, purchased at reduced rates of the ticket agent of the defendant, two round-trip excursions tickets from South Lebanon, to Loveland, Ohio, and return, the distance between said points being nine miles; that the going portions of said tickets bore upon their face the following: “Good for a continuous trip, South Lebanon to Loveland, until July 6, 1891, if stamped by agent and presented on trains stopping at points named before expiration of time limit,” and the return coupons bore the.same, except that they read, “From Loveland to South Lebanon,Ohio;” The plaintiff and his son went to Loveland on the 4th day of July, 1891, on one of the defendant’s trains ; that on the 5th day of July, as they went to the station of the defendant in Love-land for the purpose of returning to South Lebanon, they saw a train approaching’ the station, and the plaintiff went to the window of the ticket office of the defendant and asked a man in the ticket office if that train just coming in would stop at South Lebanon, to which the man replied, “Yes; and the only one that will stop there to-day;” that, thereupon, the plaintiff and his son got upon the train without making further inquiry or being- stopped by the trainmen, and when a short distance out from Loveland the conductor of the train asked the plaintiff and his son for their fare; that the plaintiff tendered the two returning coupons described as aforesaid, which the conductor declined to accept, stating that his train did not stop at South Lebanon, but stated that his first stop was at Morrow, the first station immediately east of South Lebanon, and he would accept the returning coupons in part payment of their fare, and thejr could pay him the fare from South Lebanon to Morrow in cash, amounting to 25 cents for the two; that plaintiff replied he had no money, and that the ticket agent at Loveland had told him that that train stopped at South Lebanon and was the only one that would that day; thereupon the train was stopped about two miles from Loveland, between five and six o’clock in the afternoon, and upon the demand of the conductor, the plaintiff and his son were compelled to leave the train at a place where there was no station and where there was a fill - and steep bank, but that no force was used in their removal -from the train, and from there they walked to their home in Lebanon.
    “It is agreed that the ticket agent at Loveland had no power to change the terms of the tickets or to order the train to stop at South Lebanon, and that the train was one which did not stop at that station.
    “One of said return coupons is hereto attached, marked exhibit A.”
    The following is the exhibit:

      It is agreed that the coupons were stamped on the back by the agent at South Lebanon.
    The court, on the agreed statement, found for the defendant, and dismissed the plaintiff’s petition. A motion for a new trial was made and overruled, and exceptions taken. The agreed statement of facts is made a part of the record by a bill of exceptions. On error to the circuit court, the judgment was reversed on the ground that “the court erred in finding that the plaintiff had not stated a cause of action which was sustained by the agreed statement of facts.” This is the question presented here on error. In his petition the plaintiff averred that the defendant is a common carrier of passengers in this state; that on July 4,1891, he purchased of the defendant’s agent at South Lebanon two round-trip tickets to be valid until July 6, one for himself and one for his son, who was about eleven years of age, entitling him to ride from South Lebanon to Loveland and return on trains of the company, and “that on the 4th‘dayof July, 1891, he boarded one of defendant’s trains at South Lebanon, and went to Loveland, as he had a right to do on said ticket, and on the 5th day of July, desiring to return to South Lebanon, the plaintiff entered the defendant’s office at Loveland and inquired of defendant’s agent, there, if the train then approaching was the one for him to take to South Lebanon ; said agent replied that “it was, ” and “that it was the only train that would stop there that night;” thereupon the plaintiff and his said son boarded said train, and while riding on said train, at a point about two miles from Loveland, defendant, by its agent, the conductor then in charge of said train, assaulted plaintiff and ejected him and his said 'son, without cause or fault on his part, from said train of said company and before the end of plaintiff’s said journey, and before the arrival of said train at anjr station; and plaintiff further states that he tendered, the tickets purchased as aforesaid, for return passage • to South Lebanon, Ohio, to° the conductor of said train, which he refused to accept, and ejected plaintiff from said train, to his damage in the sum of $1,000. 'Wherefore plaintiff prays judgment against defendant in the sum of one thousand dollars.”
    The case is here on error to reverse the judgment of the circuit court; and the only question presented is, whether, on the facts, the case made in the petition was sustained.

      Gha/t'les Darlington, for plaintiff in error.
    The train was one that did not stop at South Lebanon. The plaintiff had a ticket that did not entitle him to ride upon that'train. He was in the position of a passenger without a ticket. He could do one of two things. He could pay his fare to the next station at which the train did stop. This the conductor proposed to do, accepting as part pay the ticket in question. The plaintiff refused to do so. It was then his duty to get off. As between the conductor and the plaintiff, the latter was then on the train without, a right to be there, and it became the right of the conductor to put him off. This was done in a proper manner. R. R. Co. v. Skillman, 39 O. S., 444.
    No violence offered him and none claimed in the evidence. Should the company then be mulcted in exemplary damages, as is sought in this action, because the conductor performed his duty? A brief consideration of some of the adjudicated cases bearing upon this question will, it seems to me, make clear the fact that it should not be, and that the plaintiff mistook his remedy. The A. T. & St. F. R. R. Co. v. Gantz, 38 Kan., 608; Frederick v. R. R. Co., 37 Mich., 345; Yorton v. The M. L. S. & W. Ry. Co., 54 Wis., 234; Townsend v. Railroad Co., 56 N. Y., 295; Railroad Co. v. Griffin, 68 Ill., 499 ; Shelton v. Ry. Co., 29 Ohio St., 214; McClure v. Railroad Co., 34 Md., 532; Bradshaw v. South Boston R. R. Co., 135 Mass., 407; Petrie v. Penn. R. R. Co., 42 N. J. L., 449; Railway Co. v. Pierce, 47 Mich., 277; Hufford v. Railroad Co., 53 Mich., 118; McKay v. Ohio R. R. Co., 11 Southeastern Rep., 737.
    The conclusion from these authorities is that the plaintiff, riding upon that train without a ticket entitling him to do so, and refusing to pay to a station at which the train stopped, was properly ejected from the train.
    The conclusion from these authorities equally is, that the misdirection of the agent caused a breach ’of the contract to carry, and for which in a proper action he is entitled to recover.

      William McDonald and W F. Fltzroth, for defendant in error.
    Counsel for plaintiff in error contends that defendant in error has misconceived his remedy, he having brought an action in tort, while his right of action was for a breach of contract.
    The learned judge of the court of common pleas held that the recovery should be for a breach of the contract. But how can this be? There was no refusal of the defendant to carry the plaintiff on trains stopping at South Lebanon, as agreed in the contract, but there was a refusal to carry plaintiff to South Lebanon on an express train which did-not stop at South Lebanon. There was no breach of the contract in this, and he was put off of this train rightfully, perhaps, so far as the conductor was concerned. But he was wrongfully placed by the company, without fault on his part, on this train, and he has the right to secure whatever damage may have resulted to him by reason thereof. Therefore, he has a cause of action. What is it?
    Similiar actions have given rise to considerable discussion as to the motive of such actions and there has been a conflict of decisions on the question, especially in England, but under our rules of pleading, such distinctions are not considered of vital importance. 50 N.W. Rep., 104; Railway Co. v. Pauson, 17 U. S. C. C. of Appeals, 287; McGinnis v. Railway Co., 21 Mo. App., 407; Railroad Co. v. Roberts, 91 Ga. 513; 18 S. E., 315; Hall v. Railroad Co., 15 Fed. 59. In all such actions the plaintiff is not to be confined in his recovery to the price of his extra tickets or fare or mere loss of time, but the jury may award damages for the humiliation or injury received by his wrongful expulsion from the train. Zion v. Southern Pacific Co., 67 Fed., 503, and authorities there cited. Poole v. Railroad Co., 16 Or., 261; 19 Pac., 107; State v. Hungerford, 39 Minn., 7; 38 N. W. 628; Everett v. Railway Company, 69 Iowa, 15; 28 N. W., 410. Unless the railroad company furnishes the necessary conveniences or facilities for procuring tickets, the passenger cannot be considered to be in any manner at fault. Ray, Neg. Imp. Dut. 181.
    With reference to the right of a passenger to be carried on the wrong coupon, where the coupons are detached by the conductor on the going trip and the returning coupon, instead of the going coupon, is retained by the conductor, and the going coupon instead of the returning coupon, given to the passenger, which the passengér retains without discovering the mistake until he presents it to the conductor on the return trip, and then makes his explanation as to how the mistake occurred, the courts have held that under such circumstances the passenger has the lawful right to be carried on his return trip on presenting the going coupon with the explanation, and, if expelled for not paying his fare, he is entitled to recover damages for the expulsion. Pennsylvania Co. v. Bray, 125 Ind., 229, 25 N. E. 439; Railway Co. v. Fix, 88 Ind. 381; Railroad Co. v. Bambrey (Pa. Sup.) 16 Atl., 67; Wightman v. Railway Co. (Wis.) 40 N. W., 689. Railway Co. v. Rice, 64 Md. 63, 21 Atl., 97. Rouser v. Railway Company, 97 Mich., 565, 56 N. W., 937. These cases as well as the others previously referred to, all proceed upon the broad ground that the passenger was wholly without fault; that he had done all that could reasonably be required of him to do; and that the railroad company, by the mistake, carelessness or negligence of its agents or conductors, was itself at fault. This is the underlying principle of all the well considered cases upon this subject. This principle is fair to both parties. It is sound, reasonable and just. In further support of it we cite the following additional authorities: Johnson v. Railway Co., 46 Fed., 734; Zion v„ Southern Pacific Co., 67 Fed., 506; Head v. Railway Co., (Ga.) 7 S. E., 217; Railroad Co. v. Dougherty, 86 Ga., 744, 12 S. E., 747; Railroad Co. v. Roberts, 91 Ga., 514, 18 S. E., 315; Railway Company v. Hennigh, 39 Ind., 509; Hufford v. Railroad Co., 64 Mich., 631, 31 N. W., 544; Railway Co. v. Mackie (Tex. Sup.) 9 S. W., 451; Railroad Co. v. Conley (Ind. App.) 32 N. E., 96; Murdoch v. Rail

      road Co., 137 Mass., 293; Muckle v. Railway Co., 79 Hun., 38, 29 N. Y. Supp., 732; McGinnis v. Railway Co., 21 Mo. App., 399; Burnham v. Railway Co., 63 Me., 298.
    So in this ease, Reynolds, having done all that he was required to do, having been, in fact, placed upon the train by the company itself, he was a legal passenger thereon and the railway company is liable in damages for his expulsion.
   Minshall, J.

We think there can be no question but that the petition states a cause of action founded on tort' — the wrong of the defendant by its agent in ejecting the plaintiff and his son from the train. Then do the facts contained in the agreed statement support the complaint? We think they do. The plaintiff and his son were at Loveland, and each had a ticket which required the company to carry them to South Lebanon that day, on anjr train stopping at that place. He inquired of the agent at the station if a train then approaching was the train for him to take. The agent said it was, and that it was the only train that would stop at his destination that afternoon. He then with his son boarded the train. It proved to be a wrong one. This was the fault of the company; and he and his son were, afterward, and before reaching their destination, ejected, because under the instructions the conductor had from the company, it was his duty to do so. The argument in support of thé company’s claim is, that the agent under the circumstances, had the right to eject them, as the tickets did not authorize the plaintiff and his son to ride on that train, because it did not under its schedule, stop at the plaintiff’s destination. And, therefore, the plaintiff’s .remedy was for a breach of the contract, and a different measure of damages would apply -in such case.

It may be observed that under the code this was not a sufficient reason for the judgment of the common pleas dismissing the action. For if the agreed statement showed the plaintiff entitled to any relief upon the averments of the petition, the court should have awarded it.- It makes no difference what the plaintiff may regard the nature of the wrong of which he complains, if the facts stated show that it is a wrong for which he should be compensated in ’ damages, and the proof supports his petition. But this is not material here, as we regard the facts disclosed by the agreed statement, as constituting a tort, and for which damages should- have been assessed him by the court under the case made in his petition.

There are some cases which seem to support the contention of the plaintiff in error, but they, as does the reasoning of the plaintiff in error, depend upon what seems to be an evident fallacy. They assume as a premise, that the act of the conductor in putting the plaintiff off, was rightful, and, therefore, the company cannot be held guilty of a tort. But the act of the conductor is immaterial except as it affects the liability of the company. The suit is not against him but against the company. As between the conductor and the company, the latter may have no right to complain of him. He violated no duty he owed to the company. He simply obeyed his instructions as received from the company, applicable to such a case. Therefore, it may well be said, that as between him and the company, the conduct of the conductor was rightful. But as between the company and the passenger, the question is wholly a different'one. Where a company by the act of a proper agent, causes a passenger, as in this • case, to take the wrong train — one that does not stop at his station —it must be held to have contemplated, that under the instruction given its conductor, the passenger would be put off the train as soon as the error should be discovered by the conductor, unless he should, as demanded, pay additional fare and be carried beyond his station. The act of the first agent of the company, misdirecting the passenger, is the wrongful act for which the company becomes liable in tort, and the act of the conductor in ejecting him is a consequence of the first wrongful act — is the proximate cause of the passenger being ejected; and as against the passenger, the act of the conductor in ejecting him, being the act of the company, is wrongful. The fallacy, as before stated, arises out of the mistaken assumption, that the act of the conductor is rightful as against the passenger. This can in no instance be the case, where the company is responsible for the mistake of the passenger in taking the wrong train. All the cases cited in support of the contention of the plaintiff in error, that in any way do so, are based on the fallacy that the conductor had the right to eject the passenger, when, as a matter of law, the real question is, whether the act of the company done by its agent, is rightful as against the ejected party. The question may be simplified by eliminating the fact of agency in each instance; that is, by supposing that the- common carrier in each instance, acts for himself or itself. Here no mind would doubt but that the carrier, having instructed the passenger to take one of his trains, with knowledge of his destination, would be a wrong-doer, should he on discovering his own mistake, eject him from the train, on the ground that he had taken the wrong train. But the intervention of an agent, by whom the act is done in each instance, does not change the ease. For each act of the agent, done in the scope of his agency, must be imputed to the principal — is, in law, the act of the principal. To use the language of Chief Justice Ryan, in Craker v. Railway Co., 36 Wis., 674, ''Quoad this contract and this passenger, the corporation was present on this train to care for her (the passenger,) represented by the officers of the train, who possessed, pro hac vice the.whole power and authority, and were the living embodi-' ment of the real ideal entity which made the contract, was bound to keep it, and is appellant here to contend that it has no responsibility for the . flagrant violation of the contract, which the respondent paid it to make and to keep, as its sole present representative appointed to keep it on its be- ■ half.”

The plaintiff in error claims that the case of Shelton v. Railway Company, 29 Ohio, St. 214, is decisive of this. There the plaintiff on a commutation ticket, had gone on the train from his home to Cleveland. For some claimed irreg’ularity in the ticket, it was taken up by the conductor of that train and returned to the general agent of the company, of which he notified the plaintiff. “ In the afternoon of the same day,” as stated in the report of the case, “the plaintiff not having recovered the commutation ticket, nor provided himself with a ticket, entered the defendant’s cars at Cleveland, which were then in charge of another conductor, to return to Vermillion, and was put off the cars at Berea, a regular station on the line, of defendant’s railway, by the conductor then m charge of the train, for refusing to pay' the fare prescribed by the defendant for a passage from Cleveland to Vermillion, for which last mentioned injury the action was brought. ’ ’ The court held that the plaintiff could not, under these circumstances, maintain an action for being put off the train; and that his' remedy was for the wrongful taking up of the ticket by the first conductor. When he took the train at Cleveland, he knew his ticket had been taken up, and must have known that he would be put off before reaching his home. He took the train to return with this knowledge, and his ejection was the result of his own fault. He should either, in this case, have purchased a ticket to return on or have paid fare when demanded. A party cannot, as a rule, recover damages for the aggravation of an injury caused by his own fault. In the case before us, the plaintiff, when he took the train at Love-land, did so by the fault of the company, and could not then have anticipated that he would be put off before reaching his destination. His right of action, then, is for the wrongful expulsion.

The case of Railroad Co. v. Gants, 38 Kan. 608, cited by the plaintiff in error, and quoted from, is not in' point, for the reason that there it was by his own fault that the passenger took the wrong train and was ejected; he made no inquiries as to the train he should have taken.

Most of the cited cases are, for like reasons, not in point. They go no further than to require the passenger to submit to the enforcement of the reasonable rules of the company, and deny to him the right to resist expulsion and recover for such injuries as he may receive thereby, yet allow a recovery for all other damages resulting from his expulsion, where wrongful on the part of the company. Thus in Railroad Co. v. Connell, 112 Ill. 295, it is said: “We entertain no doubt that appellee was entitled to recover the amount of the cost of a ticket from the place where he was ejected from the cars to New York. He was also entitled to recover such damages as he sustained on account of the delay occasioned by the expulsion and all additional expenses necessarily occasioned thereby, as well as reasonable damages for the indignity in being expelled from the train; but we perceive no ground upon which he can recover for the personal injuries received unless the expulsion was malicious or wanton.”

Not only the better reason, but the greater weight of authority are to the effect that when a passenger is ejected in a case like the present, he may recover damages as for a tort, for though the relation of the parties had its origin in contract, the ejection is in the nature of a tort, and he is not limited to such damages as would be proper in a mere breach of contract. In such cases it can make no difference to the passenger, so far as his injury is concerned, whether the wrong resulted from the breach of an obligation imposed by contract, or from the breach of a duty imposed by the law; the loss, inconvenience, delay and humiliation will be the same to him, and his damages should be measured by a like rule in either case.

On the question of the character of the plaintiff’s right of action and the measure of damages, and, also, on the liability of a company to a passenger ejected from one. of its trains, where, by the fault of its agents he took the wrong train, we refer to the following cases: Railroad Co. v. Roberts, 91 Ga. 513; McGinnis v. Railway Co.,21 Mo. App. 399; Gorman v. Railway Co., 97 Cal. 1; Railway Co. v. Hennigh, 39 Ind. 509; Hufford v. Railroad Co., 64 Mich,. 631; Railway Co., v. Pauson, 70 Fed. Rep., 585. In the last ease the decisions are pretty fully collected and reviewed. Pennsylvania Co. v. Bray, 125 Ind. 229.

The general principle derived from the cases is, that where, by the fault of an agent of the company, a passenger takes the wrong train, or is without a ticket, or one imperfectly or erroneously stamped, or for any similar reason, and is ejected by the conductor of the train, in pursuance of the rules of the company, it is liable to him as for a tort. The rule concedes to the company the right to make reasonable rules for the conduct of its business and to require their enforcement by its agents. The contingency that in certain cases the company will be made liable by the act of its conductor in following its rules, where the appearances on which he acted were created by the fault of another agent, of which he had no knowledge, is a risk incident to the privilege enjoyed of making rules, and it should suffer for the fault of the agent that caused the mistake, rather than an innocent person.

Judgment affirmed.


author: Shauck, J.

text:
    State ex rel. Fitzsimmons v. Taylor, Secretary of State, etc.

      State supe; visor of elections — Imperative duty of — Omission of name of candidate from ticket.

    1. I't is the imperative duty of the secretary of state, as state supervisor of elections, to send to the deputy supervisors the ■form of ballot to be used at an approaching election immediately upon the expiration of the time allowed for correcting certificates of nomination.
    2. The secretary, having rightly performed that duty, properly refused to instruct the deputy supervisors to omit from the ticket the name of a candidate who subsequently withdrew, there being no nomination to fill the vacancy.
    (Decided December 8, 1896.)
    In Mandamus.
    This application for a writ of mandamus was made before the election of November 3, 1896, and the writ was refused. It was submitted on the petition with the stipulation that its allegations should be taken as true, for the purposes of final-judgment.
    The relator alleged, in substance: That he was a citizen and elector, and chairman of the executive committee of the People’s party of the state; that the defendant is by law the state supervisor of elections, charged with the duty of furnishing to the deputy supervisors of elections, for their guidance, forms of all the blanks, cards of instruction, poll books and tally sheets, certificates of nominations and designs provided for the conduct of elections in the state, including a form of ballot to be followed by such deputy supervisors, who are required to print the ballots to be used by the voters at the election; that on the 8th of September, 1896, a certificate was duly filed with the defendant, certifying that on the 12th of August, 1896, one William F. Barr had been nominated for the office of presidential elector by the Peoples’ party of the twelfth congressional district; that on the 14th of October the defendant, acting as such state supervisor, sent out to the deputy supervisors a form of ballot on which was printed, in a column headed “Peoples’ Party Ticket” the name of said William F. Barr, for the office of presidential elector; that on October 22, 1896, said Barr delivered to the defendant the following notice:
    “Columbus, Ohio, Oct. 22,1896.
    “Samuel Taylor,
    Secretary of State,
    “Dear Sir: I hereby withdraw my name as presidential elector for the twelfth Ohio district, on the Peoples’ party ticket in order to prevent any complication or confusion that might result from my remaining on the same.
    “Yours truly,
    “William F. Barr.”
    The petition also alleged that notwithstanding the withdrawal of said Barr, the defendant refused to instruct the deputy supervisors to omit his name from the ticket, and that he would persist in such refusal unless compelled by the order of this -court to direct such omission. The petition also contained the following allegation:
    “It is the intention -of the representatives of said Peoples’ party in said twelfth congressional district not to fill the vacancy occasioned by the withdrawal of said Barr, and that there are no candidates for presidential electors in any other congressional district of the state, nor at large, of said Peoples’ party.”
    The relator prayed for a peremptory •'writ of mandamus, commanding the defendant to instruct all the deputy supervisors to so print the ballots for said election that the name of said Barr should not appear thereon as a candidate of the Peoples’ party for presidential elector.
    This petition was filed October 24,-1896.

      George B. Okey and George A. Fairbanks for relator.

      J. K. Richards, for defendant.
   Shauck, J.

Counsel for the relator do not insist that this writ should issue unless the act whose compulsory performance is sought is, bylaw, specially enjoined upon the defendant as a duty resulting from his office. Nor are they of the opinion that the act in question is enjoined by any express provision of the statutes which define the duties of the secretary of state as state supervisor of elections. They invoke the unchallenged rules of interpretation that statutes should be so construed as to give effect to the intention 'of the legislature, and so as to avoid absurd consequences and great inconvenience. The statute upon this subject should be so construed, if there is any occasion for construction.

Its evident object is to secure entire freedom in the exercise of the elective franchise and entire' accuracy in the ascertainment of the results of elections. That these purposes are intended is shown by the nature of the subject, the history of elections in the state just prior to this legislation, and the care taken to definé the duties imposed upon all officers concerned in the conduct of elections.

Applying these rules of interpretation to the statute in question, counsel say: “The act, -in so far as it imposes upon the state supervisor of elections the duty of furnishing forms to his deputies, is imperative; its time limitations are directory. ’ ’ If this proposition were sound, it would not reach a conclusion favorable to the relator. If a public officer performs a duty in accordance with the directory provisions of a statute, mandamus will not lie to compel him to perform it in a different manner, or at another time. It is true that the provisions of a statute as to the time for the performance of an official act will not usually be regarded as imperative, if from the nature of the act and its relation to the purpose in view one time will answer as well as another. But the purpose of this act and some of its express provisions require that the time at which the chief supervisor shall furnish the form of ballot to the deputies be regarded as imperative. Section 15 of the act (vol. 90, p. 272), requires that the deputy supervisors shall let the printing of the ballot according to the form furnished by the chief supervisor, to ■ the lowest bidder upon ten day’s notice published not more than three times in two newspapers. Section 16 requires the deputy supervisors to deliver the ballots to the judges of the election, not Less than three days before the election. When to the time so required for the performance of the duties of the deputies there is added the time necessary for the printing of the ballots it becomes manifest that the defendant would .have been remiss in the performance of his duties if he had not furnished the form to the deputies before he received Barr’s withdrawal, which was but twelve days before the election. .

Other provisions of the statute not only support this conclusion, but fix with reasonable certainty the time when the state supervisor shall furnish the form to the deputies. Section 9 provides that certificates of nomination shall be filed with him not less than thirty days before the election. Section 10, that all certificates of nomination shall be open to public inspection, and that objection thereto may be made in writing within five days after the filing thereof, his decision on such objection being final. The provisions of section 11, affecting this question are, in substance, that should any candidate die or decline, or should any certificate of nomination be insufficient, the vacancy may be filled or the certificate corrected; but the certificate of such nomination to fill a vacancy or to correct a former certificate must be filed twenty days before the election.

The statute contemplates no further time preliminary to the sending of the form of ballot to the deputy supervisors, for it provides for no further nominations, nor for other duties by him, except nominations that may be made after the tickets are printed, and for his duties with respect to nominations so made. When, therefore, the time allowed for filing of nominations to fill vacancies or to correct former certificates' has elapsed — that is, twenty days before the election — it is the imperative duty of the secretary to send the form of ballot to the deputy superisors. No discretion in this respect could be exercised by him in furtherance of the objects of the statute. It might be exercised to defeat it.

But it is said that the form of ballot must represent the truth as to candidates, and that this form, though correct when sent, no longer meets that requirement, in view of Barr’s subsequent withdrawal. And in this connection we are asked to consider a. supposed form in which the names of candidates for presidential electors should be printed in the wrong ticket. The obvious and sufficient answer to all this is that such erroneous performance of a duty of this character would be no performance,, while its proper performance is the end of official duty.

Attention is called to the provisions of section 11, that, “a vacancy occurring after the printing of the ballots may be filled by filing the proper certificate with the secretary of state, at least ten days * * * prior to the election, and the name, office and party of the candidate so nominated shall be printed on adhesive slips or pasters bj^-the deputy state supervisors, which shall be delivered to the judges in each precinct, etc.” The information on which the deputy supervisors are to act in such case is to be furnished by the secretary of state in obedience to the requirement that “immediately upon the expiration of the time within which certificates of nomination may be filed with him, the secretary of state shall certify copies of all the certificates so filed to the deputy state supervisors.” Not only does the statute contain no provision requiring or authorizing the secretary of .state to give the direction sought by this petition, hut its express provisions for correcting’ tickets by means of adhesive slips after they are printed, where there are nominations to fill vacancies, indicate that, after a proper form of ballot is sent at the proper time, the deputy supervisors are to proceed without interruption to have tickets printed according to such form. All the supervisors are charged with important and clearly defined duties with respect to the filling of vacancies. It is' not their duty to aid in the creation of vacancies that are not to be filled.

A sinister aspect of this case deserves enough notice to prevent an improper inference which might be drawn from our silence. Barr’s withdrawal according to its terms, was, “in order to prevent any complication or confusion that might result” from his name remaining on the ticket. The relator alleges ‘ ‘that it is the intention of the representatives of the Peoples’ party in said twelfth congressional district not to fill the vacancy occasioned by the withdrawal of said Barr. ” Such representatives are recognized by the statute and authorized to make nominations to fill vacancies. By the common understanding’ they are to aid in carrying out the purposes of their party as they were expressed in the convention at which Barr was nominated, and they were constituted such representatives. What confusion could result if Barr’s name should remain on the ticket, thus giving the electors an opportunity to vote for him if they desired to do so, we do not perceive. Nor do we know from what source the representatives of the party that nominated Barr derived authority to determine that there would be no candidate for elector, contrary to the declaraton of those whom they represent. Though there may be no mode of compelling such representatives to perform their duty, neither election officers nor courts should encourage their dereliction. In considering this aspect' of the case, it is important to remember that the statute is designed to promote the purity of elections.

The defendant has fully and rightly performed his duty in the premises, and

The writ is refused.

Williams, C. J„, not sitting.


author: Bradbury, J.

text:
    The City of Galion v. Lauer.

      Personal injury — Action for damages — Evidence that plaintiff had family, incompetent — Effect on jury prejudicial — Municipal ■ corporation law.

    1. In an action against a municipal corporation to recover for injuries caused by a defective sidewalk, evidence that the plaintiff was married and had a family of small children depending on him for support, is incompetent. The tendency of such evidence is to enhance the damages beyond the sum legally recoverable.
    2. Whether or not the presumption would arise from such evidence, alone, that the verdict had been affected thereby, and the evidence therefore prejudicial; yet such presumption should he held to exist where in such case the court said in its charge, that the jury, in 'estimating the damages, might among other matters,' consider the ability of the plaintiff; “ to labor and earn money f * * and to provide for himself and family before and after the accident.”
    (Decided December 8, 1896.)
    Error to the Circuit Court of Crawford county.
    This action was brought by the defendant in error in the court of common pleas of Crawford county, to recover of plaintiff in error on account of injuries received by him by reason of a defective sidewalk. He recovered a judgment in the. court of common pleas, which the circuit court affirmed, on error. The facts will appear in the opinion of the court.

      B. C. Tracht, city solicitor; J. TF. Coulter and B. TF. Johnston, for plaintiff in error.
    Upon what rule of evidence this testimony was admitted we are at a loss to know. The court by the admission of this testimony when taken in connection with his charge to the jury, seemed to try to impress upon the jury that the measure of damages in this case depended upon the necessities of plaintiff’s family.
    There could be but one possible object in asking these questions- and this would be to work upon the sympathy of the jury, and secure a favorable verdict because of the helpless condition of the family. There could be no other reasons for asking the questions and this would be the only effect the answers could have.
    What effect these answers had upon the jury no one can tell.
    Upon this point we can do no better, than refer to ’ the clear and unequivocal language of Mr. Justice Harlan in the case of Pennsylvania Company v. Joseph E. Boy in the supreme court of the United States. 1 American and English Railroad Cases, page 232.
    When we look to, the charge of the court in the case at bar, it will seem that the jury could not do otherwise than to consider the character and condition of the family in determining- the amount of their verdict if they found for the plaintiff.

      J. G. Meuser, Dan Babst, Jrn and Finley, Beer <& Bennett, for defendant in error.
    The plaintiff in error complains that the court below erred in permitting the plaintiff below to prove that he had a wife and children at the time of the accident. This testimony was neither beneficialto the defendant in error nor injurious to the plaintiff in error. It was a matter not in issue. Neither party was bound to prove or disprove it. It did not tend to prove negligence on the part of the plaintiff in error, nor the extent of the injury sustained by the defendant in error. Hence its admission was not reversible error. Whelan v. Kinsley, 26 Ohio St., 137; Reynolds v. Rogers, 5 O., 169; Dickey v. Beatty, 14 Ohio St., 389, 393, 394.
    The case of Pennsylvania Co. v. Roy, 102 U. S., 451, cited by counsel for the city, differs from this case. In that case Roy was injured by the falling of a berth in a sleeping car, and for some time thereafter was incapacitated from performing- his usual avocations. The jury assessed his damag-es at $10,000. Justice Harlan in his opinion says: “This proof,” (that Roy had a wife and children, and their ages), “in connection with the impairment of his ability to earn money, was well calculated to arouse the sympathy of the jury, and enhance the damages beyond the amount which the law permitted ; that is, beyond what was, under all the circumstances, a fair and just compensation to the person suing for the injuries received by him.”
    In the case under review the injury was much more serious than in the case of Roy. Lauer’s leg was badly fractured. He was laid up for a year, and made a cripple for life. The jury only awarded him $2,500. There is no intimation in the brief of counsel for the city that the damages are . excessive. The court will see that they are not even compensatory, and hence the testimon3r objected to did not “arouse .the sympathy of the jury,” and the plaintiff in error was not prejudiced by the act of the court complained of.
   Bradbury, J.

The entry on the journal of the court of common pleas in this case, allowing the bill of exceptions, is similar to that held to be sufficient bjr this court, in the case of the C. C. C. & St. L. Railroad Company v. Kernochan, supra, recently decided.

The bill of exceptions being valid, the questions arising thereon were before the circuit court when the ease was in that court, and are now before this court for determination.

The action was instituted by the defendant in error to recover against the city of Galion, damages claimed by him to have been sustained on account of a defective sidewalk.

During his examination in chief his counsel asked him the following questions: ‘ ‘Had you or had you not, a famity at that time?” Answer: “I had a wife and four children. ” ‘ ‘How old were your children at that time?” Answer: “The oldest was ten years old and the youngest was one year old.”

This evidence was admitted over the objections of the plaintiff in error.

This evidence was not pertinent to the issues joined between the parties. The plaintff’s right of action did not depend upon the question of his marriage, nor upon that of his fatherhood; and the defendant was bound to no higher duty towards a married man or a father than to one who bore neither of these characters. If the right of action existed, the damages lawfully recoverable should be no more affected by those circumstances than the right of action itself.

The only serious question is whether the admission of the evidence was prejudicial to the defendant below, plaintiff in error.

Doubtless this error could have been cured by an instruction, cautioning the jury against increasing the amount of their verdict on account of the plaintiff below having a wife and young children depending on him for support. This, however, was not done. On the contrary the court seemed to be of opinion that the jury might, in fixing the amount of the recovery, take into consideration those circumstances. On this point the instructions were as follows: “You will take into consideration the age of the plaintiff at the time of the accident, his occupation, his ability to labor and earn money and enjoy life and provide for himself and family before and since the accident.” * * * This language would authorize the jury to enhance the damages, because the person injured had a family. The fact that the plaintiff below had a family of young and helpless children depending upon him for maintenance had been put in evidence. We think the natural tendency of that fact was to arouse the sympathies of the jury, and in view of the language employed by the court, the reasonable inference is that the amount of the verdict was increased on account thereof.

This is the view of the question taken by the supreme court of the United States, in Pennsylvania Company v. Joseph E. Roy, 102 U. S., 451. That court, speaking through Justice Harlan, used the following language:

“There was, however, an error committed upon the trial, to which exception was duly taken, but which does not seem to have been remedied by any portion of the charge appearing in the bill of exceptions. The plaintiff was permitted, against the objection of the defendant, to give the number and ages of his children, a son ten- years of age, and three daughters of the ages, respectively, of fourteen, seventeen and twenty-one. This evidence does not appear to have been withdrawn from the consideration of the jury. It certainly had no legitimate bearing upon any issue in the case. The manifest object of its introduction was to inform the jury that the plaintiff had infant children dependent upon him for support, and consequently, that his injuries involved the comfort of his family. This proof, in connection with the impairment of his ability to earn money, was well calculated to arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted; that is, beyond what was, under all the circumstances, a fair and just compensation to the ■ person suing for the injuries received by him. How far the assessment of damages was controlled by this evidence as to the plaintiff’s family, it is impossible to determine with absolute certainty; but the reasonable presumption is that it had some influence upon the verdict.”

Judgment reversed.


author:
Spear, J.
      Bradbury, J.,

text:
    The Stranahan Brothers Catering Co. v. Coit.

      Agency — Master and servant — Malicious act of servant against master — Liability of master for injury of such act to third persons — Rule as to damages.

    1. A master is liable for the malicious acts of his servant whereby others are injured, if the acts are done within the scope of the employment and in the execution of the service for which he was engaged by the master. ■
    2. Where a master owes to a third person the performance of sqme duty, as to Jo or not to do a particular act, and commits the performance of the duty to a servant, the master cannot escape responsibility if the servant fails to perform it, whether such failure be accidental or wilful, or whether it be the result of negligence or malice. Nor is the case altered if it appear that the malice was directed to the master.
    3. Where a master is under contract to deliver to the proprietor of a cheese and butter factory, pure milk, and has knowledge that the milk so delivered is to be mixed with the milk of other patrons, and entrusts the delivery to a servant who, in the course of such employment, delivers adulterated milk, the master is liable for damages necessarily and directly resulting by reason of such delivery, and it is not a defense to show that the servant without authority and purposely, and to gratify his malice towards his employer, and with intent to injure him, adulterated the milk so delivered by mixing with it water, and that the master had no knowledge of such adulteration. In such case the rule of damages is compensation for the injury.
    (Decided December 8, 1896.)
    Error to the Circuit Court of Portage county.
    The plaintiffs action was brought upon a petition of which the following is a copy:
    “Petition. Plaintiff is a corporation duly organized and doing business, with its principle office in Cleveland, Ohio; that said plaintiff is engaged in the business of bakers and general caterers in the city of Cleveland, Ohio, and also in the manufacture of butter, cheese and candies, and other confectionery; that in said business and each of its branches it requires, .needs and uses large quantities of pure milk and cream, butter and cheese, and ships large quantities of butter and cheese into the general market. That as a part of its said business it runs a butter and cheese factory at Mantua, Ohio, where it purchases from its patrons, and receives a large amount of milk to be in part manufactured into butter and cheese, and in part shipped to principal places of business, and in part skimmed and the cream therefrom sent to it at its said place of business in. Cleveland, to be used in its said business as aforesaid.
    “That defendant, Prank R. Coit, was one of plaintiff’s patrons, and furnished large quantities of milk delivered at its factory at Mantua, Ohio. That said defendant promised and agreed at the time of bringing first, his milk to plaintiff’s said factory, to bring nothing but milk of first class or superior quality; that he brought milk to said factory from December 14, 1891 to November 21, 1892, and in all about 120,000 pounds, and received therefor the price of a superior quality of milk, to-wit: about $1,150; but that said defendant, Coit, instead of bringing first class milk, or milk of a superior quality, during all of said time furnished plaintiff at its said factory, milk adulterated with water, only about two thirds of which was milk and one third water, and made foul by stale, filthy and impure water, well knowing at said time it was to be placed with and mixed with the other milk of said factory, and knowing it was to be used in plaintiff’s business as aforesaid. That the entire amount of milk received and used at said factory, as said defendant well knew, amounted to about 7,000 pounds daily, upon the average.

      “By reason of said adulterated milk furnished by said defendant, the product of said factory was greatly lessened and damaged; that the ’butter and cheese manufactured therefrom, and the milk with which said adulterated milk furnished by defendant was mixed were poor and of an inferior quality, and soon became unfit for use, or for the trade, except as second or third class, or very inferior quality, and many times became wholly worthless. That large quantities of cream from said factory, which otherwise would have remained good, sweet and wholesome, became thereby sour, tainted and unfit for use, and entirely worthless, and the business of plaintiff greatly injured thereby, the said defendant well knowing the uses to which the milk and cream from said factory would be put, and that plaintiff’s business, in a great measure, depended thereon; and defendant knew that plaintiff’s said business depended upon the absolute purity of the milk from said factory.
    Yet defendant continued to thus send impure, unwholesome, foul and adulterated milk ■ to said factory, knowing’ the same to be adulterated, and palming off upon plaintiff for pure milk, milk that had been watered and adulterated, and to the damage of plaintiff as set forth herein, in the sum and to the amount of ($4,000) four thousand dollars,
    “Wherefore plaintiff prays judgment against said defendant for said sum of $4,000 with interest thereon from November 21, 1892.”
    ’ Defendant, by answer, admitted the corporate character of plaintiff, and that it was doing business at Cleveland and denied all other averments. By cross-petition he alleged “that on the 21st day of November, 1892, the said plaintiff was indebted to him fox- milk before that time .furnished it in the sum of $219; that the same is now-due and xxot paid;” and prayed judgment for that sum and interest.
    At the trial, as appears by the bill of exceptions, “the plaixxtiff, to maintain the issues on its part, ixxtroduced evidence tending to sustain the allegations of the petition; and the defendant offered evidence texxding to show that he, said defexxdant, did xxot water the milk or know that it had been or was watered, and that he had in his employ one Ed. Miller, who assisted in milking the cows, and part of the time delivered the milk to the factory of plaixxtiff, and that the said Miller, withoxxt his (defendant’s) knowledge, for the purpose of injuring the defendant, maliciously watered the milk which was delivered to plaintiff’s factory by defendant or his employe, but without any knowledge or suspicion on defendant’s part, that it had been watered. That while 'said milk may have been watered by said Miller durixxg the period he, said Miller, was in the employ of defendant, yet it was no part of his duty nor was he in any way authorized to water said milk; and that in doing it said Miller acted not for defendant but to injure defendant. But it was the duty of said Miller to milk the cows of defendant in his absexxce and to assist defendant when at home and in his (defendant’s) absence, to deliver the milk to plaintiff’s factory, and that other times he was to deliver milk at the factory of plaintiff as a part of his employment a part of the time at least, but that it was no part of his duty, nor was he directed or in any way authorized to water the milk; and that in so doing he was not acting for defendant but solely out of malice and for the purpose of injuring defendant and to gratify a feeling of ill will toward defendant of which defendant at the time was entirely ignorant.
    “The plaintiff upon this question requested the court to charge the jury as follows:
    “If - the jury shall find that the milk of defendant was delivered at its factory watered then the defendant would he liable for the damages that necessarily and directly -resulted' therefrom, even though the defendant did not water such milk, or authorize it to be done or know the same was or had been watered, if the jury shall find it was watered by one Ed. Miller, the employe of defendant.
    “But the court refused to charge the jury as requested but did charge the jury upon this question as follows:
    “If it appears to you that the milk was adulterated by Miller maliciously to injure Coit, and was without Coit’s knowledge so delivered to the factory adulterated, then Mr. Coit is not liable to defendant for any damage resulting to them from such adulterated milk. Mr. Coit, however, would remain liable for the amount of water delivered, but only because it was not milk.
    “No other or further charge upon this subject was given to the jury, nor was the above charge in any way modified, changed or withdrawn, but was without change or modification given by the court to the jury as the law by which they were to be governed in arriving at a verdict in the case.”
    Exceptions to the refusal to charge as requested, were duly entered by plaintiff. Verdict for $185.00 for defendant and against plaintiff, was rendered, and to the charge as given, and a judgment thereon, and for costs, entered, which was affirmed by the circuit court. The plaintiff asks reversal of these judgments.

      I. T. Siddal, for plaintiff in error.

      J. H. Nichols, for defendant in error.
   Spear, J.

The questions arising on the record are: 1. Whether or not Coit is liable for the acts of Miller which produced the injury? 2. Whether or not the plaintiff’s damages,in case the jury found it' sustained damages, could embrace all the injury arising from the adulterated character of the milk delivered? 3. Tf not, whether in any view the true rule is that, in case the jury found that the milk was adultered by Miller maliciously, to injure Coit, and was without Coit’s knowledge, so delivered to the factory adulterated, plaintiff was entitled to a rebate for the water, so that Coit would be liable only for the amount of the water delivered, because it was not milk ?

The inquiry involves, primarily, a consideration of the liability of the master, although reduced to its last analysis, it is an inquiry as to the proper rule of damages. Upon the face of things it is apparent that the question regarded as the controlling one, is, whether or not Coit is in any way responsible for the acts of Miller. ,

Let us first consider what result would follow if the case made is the same as though the claimed injury had arisen from Coit’s own negligent act. What, under such circumstances, would be the proper rule?

The petition alleged a contract. It was in the nature of a proposal and acceptance, Coit proposing and ag'reeing’ to deliver at the factory milk, which should be milk of first quality, meaning, at the very least, milk not adulterated, and the company assenting, and in consideration of the offer, impliedly, if not expressly, agreeing to receive and pay for such milk as should be delivered, the price of first quality milk. The acceptance of the milk so delivered was a sufficient consideration for Coit’s promise. It may be that, so far as the agreement was executory it was unilateral and, that had Coit failed to deliver any milk the company could not have recovered damages for such failure; but we need not be concerned with that consideration, for milk was delivered, and nothing can be clearer than that when Coit deliv ered he was bound by the terms of his accepted proposal. Benjamin on Sales, 51; The Great Northern Ry. Co. v. Witham, L. R. 9, C. P., 16

Inasmuch, therefore, as the evidence of plaintiff tended to sustain the allegations of the petition, the jury was justified in finding this contract. That is, a. contract by which Coit agreed to deliver milk of first class, or superior quality, i. e., pure milk and to further find that Coit had knowledge that the milk he delivered would be mixed with milk of other patrons, for the manufacture of butter and cheese in part, and in part skimmed for the cream, the product of which would be used by plaintiff in its business as caterers, etc.,'and in part sold in the market; and that the milk delivered was under this contract. Such a contract carries with it a warranty that the goods shall be, and are, what they are agreed to be, for no particular form of words is required to constitute a warranty. As held in Pasley v. Freeman, 3 T. R., 57: “An affirmation at the time of a sale is a warranty, provided it appear on evidence to have been so intended.” To which may be added, upon equally good authority, that “a positive affirmation of a material fact, intended to be relied upon as such, and which, is so relied upon, constitutes in law a warranty, whether the vendor mentally intended to warrant or not; and that his intention is immaterial.” Am. Note to Benjamin on Sales, 6th Ed., 625; Hawkins v. Pemberton, 51 N. Y., 198; Reed v. Hastings, 61 Ill., 266; Kenner v. Harding, 85 Ill., 264. It is clearly sufficient if the declarations and agreement are so understood and acted upon by the parties; and, if made at the time of the sale, and as part of or inducement to the sale, as in this ease, no other consideration is necessary, the price to be paid being a sufficient consideration. Am. Note to Benjamin on Sales, 6th Ed., 622. The liability of Coit was as broad under a breach of this contract as though there had been an express warranty by him of every lot of milk as it was delivered. Moore v. King 64 Hun. 224. The proper rule of damages for a breach in such a case would be such damages as may fairly and reasonably be considered either as arising naturally from a breach, or what the parties might reasonably be supposed to have forseen, to have had in contemplation, when they entered into the con-. tract. The rule is that if the special circumstances under which a contract is actually made are known to both parties, the damages resulting from the breach, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of such a contract under the special circumstances. Hadley v. Baxendale, 9 Ex., 341. Plaintiff and defendant, were both handling milk extensively, and it is but fair to assume that each knew the effect of mixing impure milk with that which was pure, and the consequent result to the product. So they may be reasonably held to have had such damage in contemplation when they contracted, in case of breach. Probably, also, an- implied warranty would be presumed, in view of the knowledge of the purpose, that the milk should be reasonably fit for that purpose; but this is not essential, nor is it important to pursue it at length, inasmuch as there was a contract.

Under breach of such a contract it is manifest that the vendee’s damage should be at least compensation, and if the mixture of the impure milk with that which was pure, and its use in the factory, resulting in impairing the value of the product, it is equally manifest that compensation could not be awarded without taking that fact into the account.

Cases illustrative of the point are numerous. Wilcox v. McCoy, 21 Ohio St., 655, was based upon a claim for damages arising from a sale of sheep represented to be sound but which were affected by a disease known as the foot rot, whereby other sheep of the plaintiff were infected and injured. The claim was sustained. A number of similar cases are digested by Mr. Sedgwick in his work on Damages, sections 769, 765, 766 and 768, as follows: Where animals sold are warranted free of disease, loss through communication of disease to other animals of the purchaser may be recovered. Mullet v. Mason, L. R., 1 C. P., 559, and other cases. It is not necessary to the recovery of damages to show that the vendor knew that the diseased animal was to be placed with others belonging to plaintiff. Packard v. Slack, 32 Vt., 9. The defendant is presumed to anticipate that the animals he sells will be placed with others as a natural consequence of his act. Sherrod v. Langdon, 21 Iowa, 518. The expense of nursing and curing other animals, which contract disease from those sold, may also be recovered. Long v. Clapp, 15 Neb., 417. In Randall v. Newson, 2 Q. B. D., 12, the plaintiff had bought of defendant a pole for his carriage. In driving, the horses swerved and the pole broke short off at the carriage and the horses were injured. The court held that the question should have been left with the jury whether the injury to the horses was or not a natural consequence of the defect in the pole. Where coloring matter, purchased for the purpose of coloring ice cream by a manufacturer of that article proved to be poisonous, the purchaser was allowed to recover the value of the ice cream lost through the use of the poisonous coloring matter, and also compensation for injury to business. Swain v. Schieffelin, 12 N. Y. Suppl., 155. See Jones v. George, 61 Tex., 345, also Southerland on Damages, sections 662 to 675, where the subject is discussed at length and pertinent authorities cited. There is no reason to doubt that the law is entirely settled and it is clear that if the master be found liable that liability covers all damages necessarily and directly resulting from the injurious acts.

It is also well settled that where the injury results from the default of the contracting party himself, the motive which induces the act or the omission, unless the circumstances raise a claim for exemplary damages, is of no consequence. In such case, evidence of the defaulting party’s motives, or of anything which affects only the moral character of the transaction, can have no weig'ht, and is, therefore, inadmissible. Unless the intention belongs directly to the issue, it is not an element in the case. Compensation for breach of contract in relation to the payment of money, or in relation to property, ordinarily does not involve motive, for in the first ease the failure to pay, as agreed, is measured absolutely by the sum and interest, no matter what vicious purpose induced the failure, and in the second, compensation, that is, to be placed in the same position he would have been in had the other party performed his contract, is the injured party’s right, no matter how earnest the unavailing efforts to perform may have been, nor how free from intent to injure the motive of the defaulting party. 3 Parsons on Contracts, 167, and authorities cited.

Was Coit liable for the consequences of Miller’s malicious acts? In pursuing’ this inquiry it is important that we keep constantly in mind two controlling facts; one that the relations of the plaintiff and defendant were contract relations, and those between the defendant and Miller were those of master and servant. The general rule undoubtedly is, although subject to notable exceptions, that the master is not liable for his servant’s malicious acts. As shown in Wright v. Wilcox, 19 Wend., 345, where it was sought to recover against a father for the act of his son, who while driving the father’s horses and wagon, and when about his father’s business, intentionally' whipped up the horses and ran over one of a number of boys who were trying to get into the wagon. The driver at the time saw the boy was between the wheels and thus likely to be injured. Cowan, J., in deciding the case, remarked that it was impossible to-sustain' the verdict against the father because the act of the son was done with the wilful intention to .throw the boy off; that while the son was in other respects in the service of his father, he was not in this, which was a plain trespass for which the master (the father) was no more liable than if his servant had committed any other assault and battery. A case not dissimilar in principle is that of Railroad Co., v. Wetmore, 19 Ohio St., 110, where the plaintiff, after purchasing a ticket as a passenger, applied to one who had the duty of checking baggage to have his baggage checked, and, by his importunate conduct and abusive language toward the servant, provoked a quarrel, in which the servant, to gratify his personal resentment, struck the plaintiff with a hatchet. It was held “that the wrongful act of the servant in striking the plaintiff cannot be regarded as authorized by the master, nor as an act done in the execution of the service for which he was engaged by the master. And the fact that the blow was inflicted with a hatchet furnished by the master, to be used for a wholly different purpose in connection with the servant’s business, is immaterial as respects the liability of the master.” It was shown by the evidence that the assault was not committed in endeavoring to eject the plaintiff from the place where the baggageman had special control, but outside of it, and at a place where he had no charge, and so was not a case of the use of excess of force, nor was it calculated to facilitate or promote the business for which the servant was employed. Other cases are to be found which go much further than these in exonerating the master. They are mostly old cases, and some of them have not been followed in the later decisions. Thus in Middleton v. Fowler, 1 Salk, 282, where in an action against the master of a stage coach, to recover for the value of a trunk of a passenger, lost by the driver, into whose possession the trunk had been placed by the traveler, it was held by Holt, C. J., that the master was not liable. The language of the judge “that no master is chargeable with the acts of the servant but when he acts in the execution of the authority given, by his master,” has been given too wide an interpretation; and indeed, the law of the case would hardly be regarded as good law at the present day. See Craker v. C. & N.. W. Ry. Co., 36 Wis., 657, where the true distinction is clearly given. This case (as indeed is the larger portion of the reported cases involving the principle), was against a railroad company, the action being based on its common law liability as a common carrier, and affords an instance of strict application of the rule of respondeat superior. But courts are supposed to enforce rules of law where applicable, without respect to the personnel of the parties, and it is presumed that where liability is found to attach to the master for the act of a servant, the rule of damages would be the same whether the master were an individual or a corporation.

The modern rule, and we believe it to be well established, is stated by Mr. Mechem, in his work on Agency, section 740, thus: “The tendency of modern cases, however, is to attach less importance to the intention of the agent and inore to the question whether the act was done within the scope of the agent’s employment; and it is believed that the true rule may be said to be that the principal is responsible for the wilful or malicious acts of his agent, if they are done in the course of his employment and within the scope of his authority; but that the principal is not liable for such acts, unless previously expressly authorized, or subsequently ratified, when they are done outside of the course of the agent’s employment, and beyond the scope of his authority, as where the agent steps aside from his employment to gratify some personal animosity, or to give vent to some private feeling of his own. The question of what acts are within the scope of the employment is no less difficult of determination here than in those cases where the principal’s liability for the agent’s negligence is involved, but the principles are the same. Indeed the determination of whether the principal would have been liable had the same injury resulted from the agent’s negligence or unskillfulness, will often be of aid, for if the act in the latter case would be within the scope of the employment, it is none the less so where the intention was wilful. Where the principal owes to third persons the performance of some duty, as to do or not to do a certain act, and he commits the performance of this duty to an agent, the principal cannot escape the responsibility eiviliter if the agent fails to perform it, whether such failure be accidental or wilful or whether it be the result of negligence or malice.” Continuing the author says: “What is meant is that if the agent while engaged in doing some thing which he is authorized to do and while acting in the execution of his authority inflicts an injury upon third persons, though wilfully or maliciously, the principal is liable. But if on the other hand, the agent steps aside from his employment to do some act having no connection with the principal’s business, and to which he is inspired by pure personal and private malice or ill-will, the principal is not liable.”

Mr. Justice Story, in his work on Agency, section 452, gives the rule in these words: “It is a general doctrine of the law, that, although the principal is not ordinarily liable (for he sometimes is) in a criminal suit, for the acts or misdeeds of his agent, unless, indeed, he has authorized or cooperated in those act or misdeeds; yet, he is held liable to third persons in a civil suit for the fraud, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances and omissions of duty, of his agent in the course of his employment, although the principal did not authorize, or participate in, or, indeed, know of such misconduct, or even if he forbade the acts, or disapproved of them. In all such cases the rule applies, respondeat superior; and it is founded upon public policy and convenience; for in no other way could there, be any safety to third persons in their dealings, either directly with the principal, or indirectly with him through the instrumentality of agents. In every such case, the principal holds out his agent as competent, and fit to be trusted and thereby in effect, he warrants his fidelity and good conduct in all matters within the scope of the ag’ency. ”

It is important to observe a distinction between liability for the malicious acts of an agent with respect to one with whom the principal holds contractual relations, acts affecting the performance of the contract, and with respect to others who may have suffered injury by reason of the agent’s torts; as a failure to observe this distinction has resulted in apparent confusion of terms both in text books and decisions. The distinction referred to is made apparent in an old English case. A traveler employed a livery stable keeper to drive him safely to his destination. The driver purposely and needlessly, to gratify his own personal malice, went out of his way to collide with another carriage by which one riding therein was injured. The collision also injured the traveler. The action by the former against the master was predicated wholly on the claim 'that he was liable for the malicious act of the servant, committed without authority and not in line of his service. Any action of the traveler would have rested on the failure of the liveryman to perform his contract.

And, as to the latter proposition, Prof. Wharton, in his work on Agency and Agents, section 487, gives this terse rule: “Principal who contracts to do a particular thing is liable for agents’ torts which prevent the performance of the contract.”

One principle seems to be well settled by the later authorities, viz: That if the act of the servant which has occasioned the mischief is within the scope of the employment, the fact that it was maliciously done does not affect the question of the master’s liability under a proper rule of damages.

Coming now to the case at bar, were the acts of Miller, which caused the injury, in law the acts of his employer? That is, were they within the scope of his duties, or were they outside and beyond?And here we must not mistake the acts which caused the damage. At first blush it might seem that these acts were the watering of the milk, and those were not within any authority of the master. But not so. The putting of the water in the milk would have been quite innocuous, so far as plaintiff is concerned, had the compound not been delivered to the factory. It was the delivery there which produced the harm. In those acts of delivery Miller stood for and represented his master. Clearly those deliveries were done in the course of his employment, “in the execution of the service for which, he was engaged by the master.” Under such conditions why should the master not be liable ? He had contracted to deliver pure milk, and in trusting that duty to his servant, why had he not, applying the principle announced by Judge Story, held out that servant as fit to be trusted, and warranted his fidelity and good conduct in all matters connected with the performance of that contract? Why, in reason, should the loss occasioned by the rascality of the defendant’s servant be thrown on the plaintiff? The latter had no voice in his selection; no control over his conduct. Does the servant’s motive change the nature of the damages? Does it make the failure of the defendant to perform his contract any the less obvious, or any the less serious in results? As remarked by White, J., in Railroad Co. v. Young, 21 Ohio St., 524: “Where a person is injured by the acts of a servant, done in the course of his employment, we see no good reason why the motive or intention of the servant should operate to discharge the master from liability. If the nature of the injurious act is such as to make the master liable for its consequences, in the absence of the particular intention it is not perceived how the presence of such intention can be held to excuse the master.” And would any intelligent legal mind suppose for a moment that, the alleged contract being found, if the delivery of the objectionable compound at the factory had been through the mere negligence of the servant the defendant would not be liable? Surely not. Nor does the enforcement of the rule of damages hereinbefore indicated involve punishment of one for the malicious act of another. If it were proposed to inflict punitive damag-eson the master where he is innocent of wrong intent, then that inequitable result would follow. But so long as compensation and compensation only, is the rule, the motive of the servant not entering into the case one way or the other, the master is not held for the motive; he is held only for the act. So, in this case, if the testimony of the plaintiff tended to prove that Coit knew of the condition of the milk at the time of the delivery, as the record would imply, then proof to the contrary was competent, but for the purpose only of excluding the right to recover punitive damages.

This contract involved reciprocal duties, and gave corresponding legal rights. The defendant was to deliver pure milk; the plaintiff was to pay good money. Now suppose, instead of this action, there were a suit of the defendant against the plaintiff for his season’s milk, $1,150, and the company had plead payment. At the trial it appeared, that on the day the account was due the company had given the money to one of its employes with directions to go to the vendor and pay for the milk, and he had gone to the residence of the vendor and counted out as the vendor supposed, $1,150, and taken a receipt to the company. The next day when a deposit in the bank was attempted, it was found that a portion of the money was counterfeit. Suppose the testimony to further show that the employe, out of malice toward the company and greed in his own interest, had substituted counterfeit money and paid that. Would the company have a defense? The bills paid looked like good currency, as the milk delivered looked like pure milk. In fact both were tainted. Is there any real difference in the two cases? Isn’t it a failure to perform a contract in both? True, the method of making proof of damages is different; it is simple in one case, and. much less so in the other. But when arrived at, the result is precisely the same. It is compensation in both cases — the making of the injured party whole.

Our case is essentially dissimilar from that of Railroad Co. v. Wetmore, supra, where the defendant was exonerated. If Miller had got into a quarrel with the manager of the factory, about the delivery of milk, for instance, and, to gratify his own personal resentment, had lashed the other with the defendant’s, whip which had been furnished him to drive the horses with, we would have a case parallel with the one above cited. If, on the other hand, the baggage man in the case last cited, impelled by the same malicious motive which induced the assault on the passenger, had, with the hatchet smashed the passenger’s trunk, the question involved would have resembled the case at bar.

The view here indicated finds support in the broad principle that where one of two innocent persons must suffer he must be the sufferer who puts it in the power of the wrong doer to cause the loss. “He, certainly, who trusts most, must suffer most.” He through whose agency the loss occurred must sustain it. It is a principle founded on the highest considerations of justice and expediency. The rule is elucidated in the opinion by Minshall. J., in the recent case of Shurtz, Adm’r, v. Colvin, 55 Ohio St., 274, and special reference is here ade to that opinion for argument and illustrations. See, also, Quick v. Milligan, 108 Ind., 419; Blight v. Schenck, 10 Pa. St., 293; LeNeve v. LeNeve, 3 Atk., 646.

If the foregoing conclusions are correct, it follows that the constructions given the jury did not cover the case before them. The ease made was the case_ which, within the allegations of the petition, the evidence tended to prove. The vital points were the agreement to deliver pure milk, the delivery under it, the character of the milk delivered, and the resulting damage, and the questions the jury needed instructions upon, in case they found for the plaintiff on these propositions, were the liability or non-liability of Coit, and the measure of damages in case he was to be held. The instruction given was if the adulteration was done by Miller maliciously to injure Coit, and the delivery of the adulterated article was without Colt’s knowledge, he was not liable for any damage; which, if we are right in the principles of law applicable to the case, was erroneous. The court also added that Coit would remain liable for the amount of water delivered, because it was- not milk. This means, we suppose, that, on Coit’s cross-petition, he would not be allowed to recover pay for water. Of course he could not, but this instruction ignores, any duty to deliver milk not adulterated, and would be proper in a case where the quantity delivered was the only question involved. But here was involved the question of damages for the impaired character of the article delivered, and it is difficult to see how, upon the view most favorable to Coit, the rule would not have been the ordinary commercial rule, viz.: The difference between the value of the milk delivered and what its value would have been had no water been mixed with it. Swan’s Treatise, 14th Ed., 784., Am. Note to Benjamin on Sales, 6th Ed., 906.

There is another ground which would appear to defeat the attempted defense. The sale and delivery of adulterated milk is an offense against one of the pure food statutes. The act of April 10,1889, entitled “An act to regulate the sale of milk,” 86 Ohio Laws, 229, provides: “That whoever, by himself, or by his servant or agent, * * * sells, exchanges, or delivers * * * adulterated milk, or milk to which water or any foreign substance has been added * * * shall be punished,” etc. In the case of The State v. Kelley, 54 Ohio St., 166, it is held that in a prosecution under the act of March 20, 1884, “to provide against the adulteration of foods and drugs, it is not a defense that the accused is ignorant of the adulteration of the article which he sells or offers for sale.” These statutes have a like purpose.• They are founded on the policy of protection to the public, the same policy which is recognized in numberless eases where on a sale by victuallers of articles of food for domestic consumption the law implies a warranty that they are fit for such purpose, and the seller will not be heard to say that he did not know they were not, nor to plead good faith in their sale. The rule of construction applied to the act last cited applies equally to the act to regulate the sale of milk; and it is the theory of the decision cited that it is the duty of the party who, by himself or agent, sells such articles, to know their qualities; they must know or take the consequences. An opposite construction, it is declared by the court, would defeat the humane purpose of the acts. The principle of Rose v. King, 49 Ohio St., 213, rules this case with respect to the civil remedy. Where a defendant is liable under the criminal statute, he is liable to a person directly injured, civilly, unless the language of the criminal statute indicates an opposite purpose, which is not the case here.

These conclusions require a reversal of both judgments, and a new trial.

Reversed.

Bradbury, J.,

dissenting.

This decision seems to me to rest upon the unsound principle that one person may be held to respond in damages to another on account of injuries sustained by the malicious acts of a third person.

Unfortunately the case was argued in this court upon one side only. The circuit court rendering the judgment is composed of men of experience, learning and ability, and the views of that court upon the question were in harmony with those of the court of common pleas, but we have not had the benefit of that experience, learning and ability, or of the research of counsel in support of their judgment. Their decision, I think is correct, but I feel the embarassment incident to an attempt to justify it without some intimation of the grounds upon which they placed it, or of the views of counsel for the party who prevailed in that court.

The action did not sound in contract, the plaintiff was under no obligation to receive milk, and the defendant was under no obligation to deliver it, nor was any price fixed for that which might be delivered and received. The only averment of the petition relating to a promise is this: “Said defendant promised and agreed at the time to bringing, first, his milk to plaintiff’s said factory to bring nothing but milk of first class or superior quality.” No consideration is stated for this supposed promise, and an analysis of the petition shows that the promise was one implied from the fact that milk was to be delivered, and arose out of the circumstances surrounding the parties. The uses to which the milk, according* to the averments of the petition, was to be devoted, was simply matter of inducement, showing what damages the defendant might be held to contemplate as the result of his wanton act.

The gist of the action is that the defendant knowingly delivered foul and unwholesome milk. The averment being that the “defendant continued to thus send impure, unwholesome, foul and adulterated milk * * * knowing the same to be adulterated” * * *

The defendant denied this and the ease was tried.

The evidence was not set forth in full, the bill of exceptions showing merely that evidence was given tending to support the petition, and that evidence was also given tending to show that the milk was maliciously watered by an employe of defendant for the purpose not of damaging the plaintiff, to whom the milk was delivered, but of' injuring his employer, the defendant; that it was not his duty to water the milk, and in doing so he was not acting for defendant, but solely out of malice towards the defendant, and that defendant was entirely ignorant of his actions.

In this view of the evidence, the following instructions were asked by the defendant and were refused: “If the jury shall find that the milk of defendant was delivered at its factory watered, then the defendant would - be liable for the damages that necesssarily and directly resulted therefrom, even though the defendant did not water such milk or authorize it to be. done, or know the same was or. had been watered, if the jury shall .find it was watered by one Ed. Miller, the employee of defendant. ’ ’

And the court did charge the jury as follows:

“If it appear to you that the milk was adulterated by Miller maliciously to injure Coit, and was without Coit’s knowledge, so delivered to the factory adulterated, then Mr. Coit is not liable to defendant for any damage resulting to them from such adulterated milk. Mr. Coit, however, would remain liable for the amount of water delivered, but only because it was not milk.”

The instructions given by th.e court of common pleas were directly applicable to the facts, and were sound, unless one man is to be mulct in damages for the malicious act of another. Employers are liable for that negligence of their servants which occurs in the course of the employment. And under certain peculiar circumstances where the master owes a special duty to the party injured, he is held liable for malicious acts directed against the person to whom the master owes such special duty. This principle is generally, if not exclusively confined to common carriers of passengers.

I know of no principle, however, by which a master is held liable for a malicious act. of a servant, not committed in the scope of his employment, directed against another; or where, as in this case, the malicious act was directed against, the master himself, was not done in the course of the master’s service, and incidently injured another.

Where a malicious act is done to the injury of another, the right of the latter, to redress, is against the party who caused the injury, if the party committing the act' cannot respond in damages, the party injured can obtain no practical relief., This result often occurs, but is unavoidable. The person doing the mischief is, in such cases, amendable to the public, if the act has been made a crime, otherwise he is answerable only at the bar of public opinion.

In driving the vehicle in which this milk was carried to market, the servant had no duty to perform in respect to its quality. His authority was in all respects similar to that of a boy who drives a delivery wagon for a retail grocer. It is the duty of the boy to deliver the parcels as they may be wrapped up in the shop. It was the duty of this hired man of the defendant to deliver this milk in the condition it was when it left the defendant’s farm. As well charge'the grocer with civil liability for the death of a customer, because a boy maliciously stops at a drug, store, procures arsenic, opens and distributes it through a package of sugar, as to charge the defendant in this case with liability because his man stopped-at a wayside pool of stagnant water, maliciously dipped a bucket into it and discharged its contents into the cans of milk committed to his charge. In each case the fact of employment gave the opportunity for the act, but the act was not in the line of the employment of either.

The statutes in relation to adulterated food and milk are no more applicable in the one case than in the other. If they bear on the question at all, the penalties they denounce should be directed against the wrong doers, and not one of the victims of the wrongful act.

No authorties have been cited in support of these views; none are needed, if the analysis of the petition upon which they are found is correct.

A copy of the petition and answer are appended, from which the character of the action and of the issues joined between the parties can be readily perceived.