author: Spear, J.

text:
    The Steubenville & Wheeling Traction Co. v. Brandon, Admr.

      Omission by one about to drive horse and wagon — Across street railway track- — To look for approaching car — Not negligence, when — Care required of railway company — Rights of respective parties — Law of negligence.

    1. Omission by one about to drive a horse and wagon across a street railway track constructed and operated upon a public street in a much frequented part oí a city, to look for the approach of a car is not, in all cases and as matter of law, 'negligence which will defeat a recovery for injuries received by such driver in a collision between the wagon and a car of the railway company, his duty being to exercise ordinary vigilance to avoid a collision, and whether he has exercised such vigilance or not depends upon the circumstances of each particular case.
    2. A street railway company operating cars on a public street in a much frequented part of a city has not the right to operate its cars at street crossings at a dangerous rate of speed, without warning of approach, thus throwing all the burden of care and watchfulness to avoid accidents upon drivers of smaller vehicles seeking to cross, but its duty is to maintain proper control of the car in order to be able to stop or check the same if necessary to avoid accident. The driver of a horse and wagon at such street crossing has equal rights with the company in the street and to use the crossing, the driver in crossing making due allowance for the fact that the car runs upon a fixed track, and, by reason of its greater weight, being less easy to check or stop than the smaller vehicle.
    3. Where the motorman of a street car being operated on a public street in a much frequented part of a city, discovers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track at a street crossing, in front of such car, it is the motorman’s duty to use ordinary vigilance to stop or check the car in order to avoid a collision; and the fact that such driver'may have omitted to look for the approach of the car will not, as matter of law, defeat his right to recover for injury from a collision with such car if the motorman has not used such vigilance.
    (No. 12626
    Decided November 26, 1912.)
    Error to the Circuit Court of Jefferson county.
    The action below was by the administrator of William Brandon, deceased, against The Steuben-ville & Wheeling Traction Company, to recover for the alleged unlawful killing of the deceased occasioned by a collision between a car of the company and an express wagon in which Brandon was at the time riding, the accident occurring at a street crossing. By direction of the court, given at the conclusion of the plaintiff’s evidence, the jury returned a verdict for the defendant, and judgment followed. This judgment was reversed by the circuit court and the cause remanded for a new trial. Error is prosecuted to this court by the Company. Further facts are stated in the opinion.

      Messrs. Erskine & Smith, for plaintiff in error.
    We do not believe that this court held, or ever intended, that the opinion of the majority of the court in the case of Cincinnati St. Ry., Co. v. Snell, 54 Ohio St., 197, should be construed to mean that as a matter of law a person would not be guilty of contributory negligence in driving a horse on a trot attached to a covered wagon upon a street railway track without looking or listening, when by the exercise of either of these senses the injury could and would have been avoided. To hold otherwise would in effect be giving the driver or pedestrian a superior right to the crossing, and would impose on the railway company the entire burden of preventing injury and accident. Every crossing would be made at the peril of the railway company.
    In view of the consideration given to the Massachusetts decisions by this court in the Snell case, we have taken pains to examine the later cases in that state as they might apply to the question herein presented. Hall v. West End St. Ry. Co., 168 Mass., 461; Kelly v. Wakefield & S. St. Ry. Co., 175 Mass., 331; Hurley v. West End St. Ry. Co., 180 Mass., 370; Itzkowitz v. Boston El. Ry. Co., 186 Mass., 142; Dunn v. Old Colony St. Ry. Co., 186 Mass., 316; Quinn v. Boston El. Ry. Co., 188 Mass., 473; Blackwell v. Old Colony St. Ry. Co., 193 Mass., 222; Saltman v. Boston El. Ry. Co., 187 Mass., 243.
    To the same effect are the decisions in other states which do not hold it negligence per se to cross a street railway track without looking or listening. Stafford v. Chippewa Val. Elec. Rd. Co., 110 Wis., 33; Doherty v. Detroit Citz. St.

      Ry. Co., 118 Mich., 209; Ries v. St. Louis Transit Co., 179 Mo., 1, 77 S. W. Rep., 734; Secs. 1444, 1445, White’s Supp. to Thompson on Negligence; Goldkranz v. Met. St. Ry. Co., 85 N. Y. Supp., 667; Riedel v. Wheeling Trac. Co., 63 W. Va., 523; Timler v. Phila. Rapid Transit Co., 214 Pa. St., 475; Clark’s Accident Law, Sec. 106.

      Mr. A. C. Lewis and Mr. J. O. Naylor, for defendant in error.
    The allegation of the petition that the car was being “negligently, carelessly and recklessly run,” is tantamount to an allegation that it was run in “wanton disregard of all consequences.” Gustafson v. Chicago, R. I. & P. Ry. Co., 128 Fed. Rep., 85; Harrington v. Los Angeles Ry. Co., 140 Cal., 514.
    What proof is there that William Brandon was guilty of contributory negligence? Flis horse was in a jog or slow trot. He had a right to assume that if a car should then chance to be approaching the crossing in question it would not be running at a high and dangerous speed, and not at the unusual speed at which it was in fact running on this occasion. Pie was not required to assume the risk of the motorman’s negligence in this respect. Cincinnati St. Ry. Co. v. Snell, 54 Ohio St., 197; Cincinnati Trac. Co. v. Jennings, 7 N. P., N. S., 463, 79 Ohio St., 435; P. C. C. & St. L. Ry. Co. v. Kelly, 5 C. D., 662, 53 Ohio St., 667; L. S. & M. S. Rd. Co. v. Schade, Admr., 8 C. D., 318, 57 Ohio St., 650.
   Spear, J.

The petition charged that at the time of the collision the car, a large passenger car, was being operated on the street negligently, carelessly and recklessly and at a high and dangerous rate of speed; that the motorman was not on the lookout for persons and vehicles approaching the street crossing; that he did not have the car under proper control; that he negligently failed to sound the gong or give other timely or any warning of the approach of the car toward the street crossing, and had the motorman approached the crossing with his car under proper control as he might have had it, he could and would have seen the wagon in ample time to have stopped or so checked the car as to have prevented a collision; and that, when finally seeing as he did the approach of the horse and wagon and that they were about to be driven across the track, and upon seeing as he did the perilous position Brandon was in because of the high rate of speed of the car, the motorman could have stopped or checked the car by the exercise of ordinary care and thus averted the injury, but said motorman nevertheless carelessly, negligently and recklessly failed to exercise such care.

The answer was a general denial and the plea of contributory negligence, which was denied by the reply.

The question presented, therefore, was whether or not the plaintiff’s evidence sufficiently supported his case to give him a right to go to the jury. The court of common pleas was of opinion that it did not; the circuit court held that it did. We are of opinion that, in this difference of opinion, the circuit court was right. The accident occurred about the middle of the forenoon of November 28, 1907, at the corner of Washington and Third streets in a much-frequented part of the city of Steubenville. Each street is sixty feet in width. The car track was in the middle of Third street. The car was approaching the crossing from the south at a rapid rate of speed, one witness fixing it at fifteen miles an hour, and the wagon was approaching on Washington street from the west. It was a bright, clear day. The deceased, with a companion (one Maxwell), a young man, was driving a covered one-horse express wagon, loaded with divers articles of merchandise. Ele was driving at a very slow jog trot, scarcely above a walk. At that point, and approaching the crossing, there is a slight down grade in the direction the wagon was going'. From any point on Third street in the neighborhood of the crossing a car could have been seen several hundred feet distant. Third street for some distance both ways from the crossing, was built up with business places and residences. The horse’s head could have been seen by the motorman, had he been looking in that direction, as soon as it appeared at the junction of the two streets. The horse had gotten over the car track before the impact and thus escaped serious harm. The car struck the wagon about the front wheels. The wagon was thus loosened from the horse and- was shoved sideways and in front of the car. The car was stopped in about three lengths of itself and the wagon in about half that distance. Brandon was thrown under the car and horribly mangled and instantly killed. The companion was thrown up so that the car passed under him and he was landed some distance away unconscious though not fatally, and perhaps not seriously, injured.

There seems no substantial question but that the plaintiff’s evidence, if believed, showed a case of actionable negligence unless we are to assume that the Company had a right to operate its car at a dangerous rate of speed, without warning of approach at crossings, and thus throw all the burden of care on the traveler seeking to cross a street on which the track is laid and the car operated. This we are not ready to concede. Each party had an equal right to use the street at the crossing, making due allowance for. the fact that the car runs upon a fixed track, and by reason of its greater weight being less easy to stop than the smaller vehicle. A duty to be on the lookout to avoid danger is just as fully imposed on the motorman operating a car as upon the driver of another vehicle, and a street car company must operate its cars with reference to the rights of others traveling on the street. The only different right which the railway company has arises from the necessity of the car confining its travel to the tracks, and the consequent inability to .turn out to avoid collision. Furthermore the duty is imposed on the company to so operate its cars as to keep them under control at street crossings in order thereby, so far as may be, to avoid injury to those first reaching the crossing and exercising their right to cross. So that unless the evidence disclosed a case of contributory negligence as matter of law the case should have been given to the jury under proper instructions.

The duty by one intending to cross a street-car track to look for the approach of a car before attempting to cross has not yet been held by this court to be an absolute duty, and its omission negligence as matter of law. The rule in this state as to vigilance on the part of one about to cross a known steam railroad track was established by this court in C. C. & C. R. Co. v. Crawford, 24 Ohio St., 631. It is to the effect that ordinary prudence requires one about to cross a track of a steam railroad to use his faculties of hearing and seeing to avoid injury, and the omission to do so, without reasonable excuse therefor, is negligence which will defeat a recovery for an injury to which such negligence contributed; but such omission will not defeat the action if by due diligence in their use the consequence of defendant’s negligence would not have been avoided; nor will a failure be regarded as negligence if, under all the-circumstances, a person of ordinary prudence would be justified in omitting to use them, the question of negligence and contributory negligence being a mixed question of law and fact to be decided by the jury unless the circumstances of the case admit of no rational inference but that of negligence. The effect of the entire holding is that the omission to look is not negligence in all cases and as matter of law, and it remains the law of Ohio to-day, though there are a number of decisions of courts of other states, notably Massachusetts, which appear to hold a more rigid rule. It is the Ohio rule respecting the crossing of a steam road, and, for a much stronger reason, the rule as to crossing a street railway track. Whether Brandon looked or not is not clearly shown either way by the testimony. Even though omission to look be regarded as negligence, yet we are not to presume negligence on the driver’s part in the absence of proof which establishes it, for negligence is not presumed against either party. It is possible he did look and, mistaking the speed of the car, thought he could safely cross, thus attempting to exercise an undoubted right in a public street. If he did it would be a question for the jury whether a man of ordinary prudence, situated as he was then situated, would have done as he did. But if this is not so, still Brandon had the right to assume that a car would not be running at a high and dangerous rate of speed, and without signal or alarm, and beyond control, and to act on that assumption on approaching the crossing. The driver of such a vehicle is not, in the use of the street, a trespasser, nor a licensee, but one pursuing an undoubted right, and the question always is, did he, in the pursuing of that right, exercise ordinary care? Nor is he bound to refrain from going upon the crossing merely because a street-car is in sight. If he reaches the crossing first he is entitled to cross unless it should appear that the car is in such close proximity, and traveling at such speed, as to make it impracticable to check the same in order to permit him to cross in safety. It was possible for the motorman, had he been in the exercise of ordinary care, to see the horse before Brandon, sitting back in the wagon, could see the car. As before stated, Brandon was not bound, as matter of law, to anticipate negligence on the part of the motorman even though he knew, as apparently he did, that there was a track on Third street and that cars were at intervals operated both ways thereon. It is not negligence in the driver of a vehicle to attempt to cross a street-car track ahead of an approaching car so far away that by the exercise of reasonable vigilance on the part of the motorman it might be stopped or checked before reaching the crossing.

But, assuming that Brandon was guilty of some negligence in driving on the track, yet if the motorman, in the exercise of even ordinary care, after he saw the horse and appreciated Brandon’s peril, had time and opportunity to avoid the possible consequences by checking the car, and neglected to so exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.

. Such a situation presents a case where different minds might reach opposite conclusions, and thus was a proper case for a jury under proper instructions.

Judgment affirmed.

Johnson, Donahue and O’Hara, JJ., concur.


source: Caselaw Access Project

author: Davis, C. J.

license: Public Domain

text:
    Karb, Mayor, v. The State, ex rel. Carter.

      Power of mayor to suspend chief of police — Section 4381, General Code, not repealed by implication by Section 4250, General Code — De facto chief of police subject to removal same as de jure oiKcer — Chief appointed from unclassihed service — Not subject to summary removal, when — Mimicipal law.

    1. Section 152, Municipal Code of 1902 (General Code, Section 4381), is not repealed by implication by Section 129 of the act entitled “An act to amend and supplement certain sections of the ‘Municipal Code of 1902’ herein specified, modifying and enlarging the powers of municipal corporations and their officers,” passed April 29, 1908 (99 O. L, 562; General Code, Section 4250) ; but is entirely consistent with said Section 129 (General Code, Section 4250), in that the chiefs of the police and fire departments are expressly excepted from the operation of said Section 129 and the removal of said officers is made subject to the provisions of said Section 152 (General Code, Section 4381).
    2. A de facto chief of police, or of the fire department, is subject to removal as provided in Section 152 (General Code, Section 4381) the same as a de jure officer.
    3. A chief of police who was appointed from the unclassified service, January 27, 1910, after the amended Section 158 of the Municipal Code of 1902 became effective, was lawfully appointed; and such officer is not subject to summary removal, although said section was amended and repealed during his term of office and the office was again placed in the classified service.
    (No. 13848
    Decided November 19, 1912.)
    Error to the Circuit Court of Franklin county.
    This case was begun in the court of common pleas of Franklin county by a petition in mandamus which alleged that the relator was duly appointed chief of police of the city of Columbus on the 27th day of January, 1910; that on the same day he accepted said appointment and was duly qualified as provided by law; that since that time and until the 9th day of September, 1912, he has been the duly qualified and acting chief of police of said city; that on the 9th day of September, 1912, the said George J. Karb, as mayor of said city, arbitrarily and without cause or notice, no complaint having been filed and no trial had, and without the relator having been impeached and in violation of the civil service rules of the division of police . in the department of public safety of said city, attempted to remove the relator from his said office as chief of police and gave notice to the relator of that fact and directed the subordinate officers and patrolmen of the city to disobey his orders; and that he has refused to recognize the relator as chief of police of said city and has refused and still refuses to have any official intercourse with him and has pretended to appoint a successor to said office; wherefore he prays that a writ of mandamus issue commanding said George J. Karb, as mayor of the city of Columbus, to recall his said order of removal and reinstate the relator to his office of chief of police of said city, with all the privileges, prerogatives and emoluments thereunto belonging, with all properties and rights of which he has been deprived by reason of the wrongful acts and orders aforesaid. An alternative writ of mandamus was allowed and in answer to the petition and said alternative writ, the said Karb says that he denies that the relator was duly appointed to the office of chief of police of the city of Columbus, for that at the time of said pretended appointment, on the 26th day of January, 1910, the relator was not and had never been a member of the police department of said city; that he was not appointed from the classified list of said police department and had never taken any examination before the board of public service or the civil service commission of said city with a view to appointment or promotion in said department, and that he was therefore ineligible to be appointed to said office of chief of police of said city. To this answer the relator demurred upon the ground that the said answer does not state facts sufficient to constitute a defense. In the court of common pleas this demurrer was sustained and the defendant not wishing to plead further the court found that the allegations of the petition were true and awarded a peremptory writ of mandamus as prayed for in the petition. Thereupon the defendant gave notice of his intention to appeal the cause to the circuit court and perfected his appeal by giving bond as required by law. In the circuit court the same judgment was rendered against the defendant and in favor of the relator as in the court of common pleas. This proceeding is prosecuted to reverse the judgment of the circuit court upon the ground as alleged that the same was contrary to law and that according to the facts and law of the case said judgment should have been in favor of the plaintiff in error instead of said defendant in error.

      Mr. Stuart R. Bolin, city solicitor; Mr. James Miles, assistant city solicitor; Mr. Smith W. Bennett; Mr. Thomas E. Powell; Mr. James E. 'Camp

      bell; Mr. J. E. Todd and Mr. Geo. B. Okey, for plaintiff in error.

      Mr. Thomas H. Clark and Mr. Eugene Morgan, for defendant in error.
   Davis, C. J.

In the final analysis of this case, it will be found that the determining factor is the contention that Section 152 of the Municipal Code, enacted in 1902 and now Section 4381, General Code, has been repealed by implication; for, although the only issue tendered by the answer is that, by reason of the facts therein stated, the relator was unlawfully appointed as chief of police, yet this cannot justify the defendant unless he can show that he has the power to summarily remove the relator, without appeal to the civil service commission. Such power is claimed to be derived from Section 129 of an act entitled: “An act to amend and supplement certain sections of the ‘Municipal Code of 1902’ herein specified, modifying and enlarging the powers of municipal corporations and their officers,” passed April 29, 1908 (99 O. L., 562; Gen. Code, Sec. 4250). This act expressly mentions by number the sections of the original act which are amended and supplemented, and expressly repeals those original sections. The amended and supplementary sections are substituted for the original sections by number and are thus made part of the original act. Section 152 of the act of 1902, above referred to, is not included in the repealing clause, nor is it mentioned with those which are to be amended and supplemented. It therefore remains, so far as the expressed intention of the legislature is concerned, as much a part of the original act as it ever was, and as much as any other section. The amended Section 129 provides that the mayor “shall appoint and have the power to remove * * * the heads of sub-departments of the department of public service and public safety.” Section 152 of the Municipal Code, now Section 4381, General Code, provides: “The mayor shall have exclusive right to suspend the chief of the police department or the chief of the fire department for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given him by the proper authority, or for any other reasonable and just cause. If either the chief of police or chief of the fire department is so suspended, the mayor shall certify such fact together with the cause of such suspension to the civil service commission who within five days from the receipt of such notice, shall proceed to hear such charges and render judgment thereon, which shall be final.”

It is clear, therefore, that Section 152 (General Code, Section 4381) prescribes a limitation in case of the chief of police and chief of the fire department upon the broad power of removal conferred upon the mayor by the amended Section 129 (General Code, Section 4250) unless the latter provision, being the later enactment, is so irreconcilably repugnant to the former as to amount to a repeal by implication. But in the same act which contains the same Section 129, there are other sections which convincingly repel any inference of an implied repeal. The section numbered 166 is as follows: “No officer, secretary, clerk, sergeant, patrolman, fireman, or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect shall be removed or reduced in rank or pay except in accordance with the provision of Section 152 of this act.” Section numbered 162 provides as follows: “Nothing in this áct shall prevent the dismissal or discharge of any appointee by the removing board or officer, except that the chiefs and members of the police and fire departments shall be dismissed only as provided in Section 152 of this act and the appeal therein provided to the board of public' safety shall be made to the civil service commission as therein provided and under such rules as the commission may adopt,” etc. The words “section 152 of this act” can only refer to the “Municipal Code of 1902,” not only because there is no Section 152 in the act amending and supplementing the Municipal Code (99 O. L., 562), but also because Section 152 of the code is literally “of this act”; for, as already remarked, it was intended that all of these amendatory and supplementary sections should be incorporated by number in the original act.

So that, construing all these sections together as part of one statute, it is clear that the power given to the mayor by Section 129 is qualified by Sections 152, 162 and 166, by excepting from the operation thereof the chiefs of the police and fire departments; and that the removal of the relator by the mayor and the refusal to recognize him as chief of police, as well as the mayor’s orders in that regard, were all unlawful.

It is no answer to this construction of the statute, to say that the relator was unlawfully inducted into the office of chief of police, because it is admitted that the relator was the de facto chief of police through the term of office of the defendant’s predecessor and through the defendant’s own term until September 9, 1912. It is not the province of the mayor to decide whether the relator’s tenure of office was lawfully begun or lawfully continued. Nor does it follow that because the relator may have been illegally appointed, he could be removed summarily without appeal to the civil service commission whose decision would be final. The legislature seems to have provided otherwise. We think, however, that the relator was lawfully appointed. At the time of his appointment, Section 158 was in full force and effect. (99 O. L., 568.) The clause of Section 149 of the Municipal Code which declared that the chief of police shall be appointed from the classified list of such department, was repealed by necessary implication in the amended and substituted Section 158, which declared that the unclassified service shall include the chief of the police department. The subsequent restoration, during the incumbency of the relator, of the chief of police to the classified service, in our opinion, cuts no figure in the present controversy. ■

The judgment of the court below is

Affirmed.

Spear, Si-iauck, Johnson, Donahue and O’Hara, JJ., concur.


author: O’Hara, J.

text:
    The State of Ohio v. Hare and Davis.

      Indictment against county commissioners — For accepting bribe — Violation of Section 1282s, General Code — Contractors alleged givers of bribe called as witnesses — Authority of Section 12824-1, General Code — Effect of erroneous charge to jury that evidence of illegal agreement — Must be established by other testimony— Than that of contractors• — Question of reasonable doubt of good character of defendants.

    1. An indictment was found against two county commissioners for accepting a bribe in connection with the award of a contract for 'repairing a bridge, in violation of Section 6900, Revised Statutes (Section 12823, General Code), and the two contractors, who were alleged in the indictment to have given the bribe, and the third commissioner were,called as witnesses by the state and compelled to testify under' authority of Section 12824-1, General Code.
    Their testimony tended to prove that said award was made under and pursuant to a general - understanding or agreement between the two contractors and the three commissioners with reference to county work, and certain other evidence was offered by the state in corroboration thereof.
    The court charged the jury that the conspiracy or agreement claimed by the state to exist as above, “must be established beyond a reasonable doubt by other testimony and otherwise than by the testimony” of said two contractors and the third commissioner, before the jury would be warranted in finding the defendants or either of them guilty.

      Held: That the obvious effect of such charge was to entirely withdraw their testimony from consideration by the jury, whereas the same should have been submitted under proper instructions as to the weight to be given thereto, and the charge was therefore erroneous.
    2. Evidence of their previous good character was offered by the defendants in the above case, and the court included in its charge a statement that “proof of good character may of itself create a reasonable doubt, where otherwise no such doubt would exist.”

      Held: That this was erroneous, for the reason that it gave undue prominence and effect to such testimony, and the court should have instructed the Jury to consider the same in connection with all the other evidence in the case, in arriving at a verdict.
    (No. 13591
    Decided December 17, 1912.)
    Exceptions by Prosecuting Attorney to the judgment of the Court of Common Pleas of Brown county
    The case is stated in the opinion.

      Mr. Frank K. Frebis, prosecuting attorney; Mr. J. R. Moore and Mr. E. H. Kirkpatrick, for plaintiff in error.

      Mr. O. E. Young, for defendants in error.
   O’Hara, J.

On the 24th day of January, 1912, an indictment was returned by the grand jury of Brown county, Ohio, against the defendants in error, W. E. Hare and S. A. Davis, charging them with having accepted a bribe as county commissioners. of said county, on or about the 9th day of February, 1909, in violation of Section 6900, Revised Statutes of Ohio, then in force, now Section 12823, General Code. It was alleged in the indictment that the sum of thirty dollars was paid to the defendants in error by J. C. Miller and John Randall, partners as Miller & Randall, on or about the above date, for the purpose and with the intent of influencing the defendants in error to vote for the allowance of a certain bill pending before them as county commissioners, in favor of said Miller & Randall, amounting to one hundred and seventy-five dollars, for putting new spur braces under a certain bridge in Brown pounty, the said county commissioners then and there having power and authority to allow or reject such bill. The case came on for trial before the court of common pleas and a jury, and the state offered as witnesses the said Miller and Randall, and also one William Wahl, who was the third member of the board of county commissioners. These witnesses were called by the state upon the recommendation of the prosecuting attorney and with the approval of the court, under.favor of an act passed by the general assembly, on April 11, 1910 (101 O. L.-, 100), now embodied in the General Code as Section 12824-1, which reads as follows: “A person offending against the provisions of Sections 12823 and 12825 of the General Code, is a competent witness against another person so offending, and on the recommendation of the prosecuting attorney and approval of the court, may be compelled to attend and testify in the same manner as any other person is in any court of record in any criminal proceeding prosecuted by the attorney general or any prosecuting attorney, for the violation of any of the provisions of said Sections 12823 and 12825 of the General Code, but no individual shall be prosecuted or subjected to any penalty for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, before any such court or grand jury.”

The evidence offered by the state tended to show that the contractors, Miller & Randall, had a general understanding with the three county commissioners, whereby they were to get the contracts for the construction of all bridges of the county costing less than two hundred dollars, at a fixed price per lineal foot, and the roofing of all covered bridges and the repair of all bridges, at a price to be agreed upon at the time of letting the contract; that all these contracts were to be awarded to Miller & Randall at private lettings and without competition, and they were so awarded for several years; that Miller & Randall paid the county commissioners from time to time the amounts to be paid them as their percentage under the terms of the foregoing agreement; that the particular contract for the repair of the bridge referred to in the indictment was made between the three commissioners and the two contractors at a meeting in the private office of the commissioners, at which no other person was present; that the contractors were to put in a bill for one hundred and seventy-five dollars for the repair of the bridge, which was to be allowed and paid to them, and that out of said amount they were to pay the sum of thirty dollars to the three commissioners, all of which was accordingly done. All the foregoing was denied by the defendants in error who took the stand as witnesses, and who also offered evidence tending to show their previous good character and reputation in the community. Some evidence in rebuttal was offered by the state, and the cause was thereupon submitted to the jury, which returned a verdict of acquittal.

The prosecuting attorney took exceptions to certain parts of the charge of the court to the jury, which were preserved in a bill of exceptions, and have been presented to this court for its determination under Section 13681 et seq., General Code, in order to determine the law for similar cases.

The principal claim of error urged by the state is the giving of special charge number fourteen to the jury. This charge was prepared and submitted by the defendants below and is as follows: “The conspiracy, common understanding, or agreement claimed by the State in this case, to exist between the defendants, as commissioners of Brown county, Ohio, and John Randall and J. C. Miller, as members of the firm of Miller & Randall, must be established beyond a reasonable doubt by other testimony and otherwise than by the testimony of the witnesses, William Wahl, J. C. Miller and John Randall, before you would be warranted in finding the defendants, or either of them, guilty.”

The obvious effect of this charge was to remove the testimony of these three alleged co-conspirators altogether from the consideration of the jury, and to compel the jury to base a verdict entirely upon evidence outside of that given by them. In laying down this rule to the jury, the trial judge evidently had in mind the well known reluctance of courts to permit conviction of a felony upon the uncorroborated evidence of an accomplice, but he carried the doctrine entirely too far. Even where corroboration is required, it need not extend to every part of the accomplice’s evidence, because there would be no occasion to offer him as a witness if the facts covered by his testimony could be completely proven by other evidence. 1 Wharton’s Crim. Ev. (10 ed.), page 930.

But it was long ago held to be the law in this state, that while it is the duty of the court, in its discretion, to advise the jury not to convict of felony upon the testimony of an accomplice alone, without corroboration, there is no rule of law preventing a jury from convicting upon the uncorroborated-testimony of an accomplice. Allen v. The State, 10 Ohio St., 287. And it was also held that the fact that an accomplice had committed perjury on a former examination touching the same subject-matter, even where he admitted the fact but had not been legally convicted of the perjury, only affected his credit, and did not render him incompetent or necessarily render his testimony incredible; and further, that it was not error for the court to instruct the jury, that they might find the defendant guilty upon the testimony of such accomplice, corroborated as to one or more material facts by other reliable evidence, notwithstanding his infamy and complicity. Brown v. The State, 18 Ohio St., 496. These matters are also discussed, and the above doctrines find full support, in Underhill on Crim. Ev. (2 ed.), Secs. 73, 74, and Jones on Ev. (2 ed.), Secs. 769, 770.

It is claimed, however, that the foregoing rules were changed, and the special charge under consideration justified by the case of State v. Robinson, 83 Ohio St., 136. There the essential elements of the alleged crime were proven by the uncorroborated testimony of the accomplice, other witnesses having been called, however, who corroborated her in certain material particulars, and this was held sufficient to support a conviction; and a charge by the trial court to the jury, that such corroboration as to other material facts might be based upon a finding by the jury that the circumstances or testimony, independent of the testimony of the accomplice, tended to show the probability of the existence of such other facts, was sustained. And the opinion, rendered by Chief Justice Summers, not only fails to support the claim of defendants in error herein that the testimony of accomplices should be entirely ignored, but on the contrary, at page 143, it is clearly stated that it is not necessary that the crime charged be proven independently of the testimony of the accomplice, or that his testimony be corroborated in every particular, where corroboration is required, but only that there be circumstantial evidence, or the testimony of some witnesses other than the accomplice, tending to connect the defendant with the crime charged and to prove some of the material facts testified to by the accomplice.

The special charge in question, therefore, was not only contrary to the foregoing principles, but also clearly negatived the effect of the act of April 11, 1910, now Section 12824-1, General Code, above referred to. That act was obviously passed to reach such cases as the one at bar, and by its plain terms, Miller, Randall and Wahl, were made competent witnesses against the defendants in error. Therefore the withdrawal of this testimony from consideration by the jury, thus denying its competency and depriving it of all probative value, operated in effect to declare the statute a useless enactment and to render it absolutely of no force or effect. It follows that special charge number fourteen was erroneous and should not have been given, and this exception will therefore be sustained.

The defendants below also submitted another charge, which was given to the jury at their request, and to which the state noted its exception. It is shown in the record as special charge number nine, and is as follows: “Evidence has been introduced by the defendants and each of them, S. A. Davis and W. E. Hare, tending to prove their good character, and it is your duty, gentlemen of the jury, to consider this evidence, together with all the other evidence in the case, in determining the guilt or innocence of them, or either of them. You must consider whether the evidence of such good character, when weighed and considered with all the other evidence, raises a reasonable doubt as to the guilt of the accused, or either of them, for proof of good character may of itself create a reasonable doubt, where otherwise no such doubt would exist.”

Objection is made by the state to the last part of this charge which is set out in italics. Under our system of criminal jurisprudence, every person charged with a crime is presumed innocent until proven guilty beyond a reasonable doubt, his character also being presumed to be good and not being subject to attack by the state in the first instance. There might seem, therefore, to be no real need or occasion for offering evidence of previous good character or reputation, but nevertheless, it has become the universal rule to permit a defendant to offer such evidence in his own behalf. The principle upon which this is permitted is that good character affords a presumption against the commission of a crime, arising from the -improbability, proven by common observation and experience, that a person who has uniformly pursued an honest and upright course would depart from it and do an act so inconsistent with it.

And some color is given to the rule as laid down by the court in the special charge under consideration by 1 Wharton’s Criminal Evidence (10 ed.), page 250, and the exceptional cases there cited. Nevertheless, it is expressly recognized by the author in the same connection, that the force and effect of the presumption in favor of the accused, arising from his previous good character, necessarily vary according to the circumstances of different cases and the nature and character of the proof offered; and he says that in all cases it is an item of proof, more or less important, proper to be submitted to and considered by the jury. This subject, however, was carefully considered by this court in an early case, and it was there said: “The reasonable effect of proof of good character is to raise a presumption .that the accused was not likely to have committed the crime with which he is charged. The force of this presumption depends upon the strength of the opposing evidence to produce conviction of the truth of the charge. If the evidence establishing the charge is of such a nature as not, upon principles of reason and good sense, to be overcome by the fact of good character, the latter will, of course, be unavailing and immaterial.” Harrington v. The State, 19 Ohio St., 264, at page 269. And the true rule was there stated to be, “that the testimony is to go to the jury, and be considered by them in connection with all the other facts and circumstances; and if they believe the accused to be guilty, they must so find, notwithstanding his good character.” The Harrington case was expressly approved in Stewart v. The State, 22 Ohio St., 477, and it was there again laid down, that the true and proper rule is to leave the weight and bearing of evidence as to defendant’s good character to the jury. These decisions are in harmony with the statement of the rule as deduced from the authorities and adopted in Underhill on Criminal Evidence (2 ed.), Section 80. The author has given the matter full consideration, and emphatically declares that evidence of good character must always be considered not alone, but in connection with all the evidence bearing upon the guilt or innocence of the accused; and further that the jury has no right to separate it from the mass of the testimony, and to say that it believes the accused has a good character and therefore it will disregard all the evidence of guilt. It follows that special charge number nine was erroneous in the particular complained of, and the exception will be sustained.

The other exceptions have also been considered, but we do not deem them well taken and they will be overruled.

The exceptions to the giving of special charges numbered nine and fourteen are therefore sustained, and the other exceptions are overruled, and it is so ordered.

Ordered accordingly.

Davis, C. J., Spear, Shauck, Johnson and Donahue, JJ., concur.


author: Donahue, J.

text:
    Cornell v. Morrison.

      Motion by defendant to arrest cause from jury — And enter judgment of dismissal of plaintiff’s petition — Made after opening statement of counsel for plaintiff — If statement leaves no disputed question of fact — But only one of law for court — Duty of court to withdraw case from jury, when- — Court procedure.

    1. A motion by the defendant to arrest a cause from the jury and enter a judgment of dismissal of plaintiff’s petition and for costs, made after the opening statement of counsel for the plaintiff and before the introduction of any evidence, is an admission by the defendant, for the purpose of the motion, of the truth of all the statements that the plaintiff proposes to- establish by the evidence, leaving no disputed question of fact to be determined by the jury, the only remaining question being one of law for the court.
    2. Where it appears from the record that counsel for plaintiff, in the statement of the case to the jury, stated in detail all the evidence that plaintiff proposed to offer in support of the allegations in his petition, and where it further appears that after the sufficiency of his statement was challenged, he was given full and fair opportunity to explain and qualify his statement, and make such additions thereto as, in his opinion, the proofs at his command would establish, and with such explanation and qualification as counsel desire to make it is still apparent that the facts proposed to be proven would not sustain the essential averments of the petition and would not authorize a verdict and judgment for plaintiff, it is the duty of the trial court to sustain a motion to withdraw the case from the jury and enter a judgment dismissing plaintiff’s petition and for costs.
    (No. 13099
    Decided December 17, 1912.)
    Error to the Circuit Court of Franklin county.
    On the 1st day of May, 1909, Frank L. Cornell filed his petition in the common pleas court of Franklin county, against Andrew Morrison, seeking to recover two per cent, commission on $80,000, the purchase price of certain real estate sold by Morrison to Julius F. Stone, averring among other things that he had procured a purchaser for Morrison under an agreement with him that he should do so, and that while the commission to be paid him was not specifically agreed upon, the ordinary, reasonable and customary commission would be 2 per cent, of the purchase, price.
    To this petition the defendant filed an answer, admitting the sale and transfer of the property to Julius F. Stone, but denying all the other averments in plaintiff’s petition.
    On the 5th day of April, 1910, this case came on to be tried in the common pleas court of Franklin county and a jury was impaneled and sworn, and thereupon counsel for the respective parties stated the case to the jury. After this statement had been made, it appearing to the court that counsel for plaintiff had not in his opening statement offered to prove sufficient facts to sustain a verdict and judgment for plaintiff, the court requested counsel for plaintiff to re-state to the court and jury what facts he expected the evidence to establish in support of the allegations of plaintiff’s petition. And thereupon, counsel for plaintiff made the following statement:
    Mr. Bates: “We expect the evidence to show that in December, 1908, Mr. Cornell, upon learning that the property belonging to Mr. Morrison was for sale, went to Mr. Morrison’s house and asked for the right to act as agent and find a purchaser, and that Mr. Morrison told him at that time that there was an option on this land which would not expire until January 1 — the first of the following month; that if they did not take the property he would just as leave Mr. Cornell would have it for sale as any other person; that subsequently Mr. Cornell saw Mr. Morrison and had a conversation with him after the first of January, 1909, in which he asked him if the option had been enforced or the property sold under the option, which he said, ‘No/ — Mr. Morrison said ‘No/ and Mr. Cornell told him he had persons to whom he thought he could sell the property — they would take it.
    “We expect the evidence to show Mr. Morrison asked him who they were, and he told him if he would tell him how much the other people were to pay, or something to that effect. The information was exchanged, and Mr. Cornell told the defendant that it was Park and Stone; those persons at the bank on Town and High Street, the Central National Bank; I do not know whether it had been then named the Central National Bank, but it has been changed from the Central Savings Bank to the Central National Bank.
    “We expect the evidence to show that Mr. Morrison then went to the bank and met Mr. Stone there and entered into transactions of business with him, by virtue of which the forty-five acre tract was sold to Stone, Park and others, composing The Eastwood Realty Company; that the deed was nominally taken in the name of Julius F. Stone, who acted as agent for The Eastwood Realty Company, which was composed of Stone, Park and others.
    “We expect the evidence to show that the property was immediately transferred to The Eastwood Realty Company by Stone a short time after it was transferred to Stone by Morrison, and that the property was sold for the sum of $80,000.
    “We expect the evidence to show that Mr. Cornell requested payment of Mr. Morrison his commission at the rate of 2 per cent., or $1,600, which he refused.”
    The Court: “Have you stated all that you expect to claim, that plaintiff did in respect to this sale?”
    Mr. Bates: “We expect the evidence to show, if the court please, that plaintiff did procure the purchaser; that while he did not take Mr. Morrison in person to them, that he procured purchasers after he knew it would be possible for him to sell, after he had had the first conversation with Mr. Morrison; that he saw Mr. Park at the Central National Bank, or elsewhere, and secured from him an offer on the property; a willingness to become a purchaser and an ability to purchase, as the evidence will show; that he afterwards did purchase and that Mr. Cornell is the person who procured The Eastwood Realty Company through Park and Stone as the purchasers, and that by his information to Mr. Morrison, the purchasers and vendor were brought together in that manner at the Central National Bank under the contract between Morrison and Cornell, the option or the employment, whatever it may be termed.”

      Counsel for defendant thereupon stated its case to the jury, but shortly after doing so, moved the court to enter up judgment for the defendant on the plaintiff’s own statement. This motion was sustained and the case withdrawn from the jury and the petition of plaintiff dismissed with costs.
    Error was then prosecuted to the circuit court of Franklin county and that court affirmed the judgment of the common pleas court. This proceeding in error is now prosecuted in this court to reverse the judgment of the common pleas court and the judgment of the circuit court affirming the same.

      Mr. Ray S. Bates, for plaintiff in error.
    In the very nature of the case this motion for non-suit should and must be treated as a general demurrer; for the reason that counsel made the reading of the petition a part of his statement of the case to the court and jurors. If the petition is good, the statement could not be fatal. Our contention is the petition states a cause of action, and for that reason the court erred in entering a non-suit; but should have allowed the jury to hear and consider the evidence.
    If this petition properly could have been held insufficient on this motion, as upon demurrer, the plaintiff should have been allowed to amend. And, therefore, as to the supplemental motion for leave to amend, we claim it should have been sustained, for the reason the plaintiff was taken by surprise. Bliss v. Long, Wright, 352.

      Plaintiff in error apparently has a meritorious cause of action; and he has never had his day in court. By denying" him a hearing upon the merits, the trial court has .committed reversible error. One of plaintiffs fundamental constitutional rights has been violated. Section 16, Article I, Constitution.

      Messrs. Pugh & Pugh, for defendant in error.
    The situation was exactly the same, in effect, as if counsel had offered his evidence, and his evidence had not sustained the allegations of his petition, or had not been sufficient to make a case of any sort against the defendant, and non-suit had thereupon been sustained. So that it is not a question of whether the petition "was demurrable or not.
    If the opening statement of counsel for the plaintiff in the court below was tantamount to an admission that plaintiff had no case, the court had the power to direct a verdict. Pietsch v. Pietsch, 245 Ill., 454; Lusk v. Throop, 189 Ill., 127; Fisher v. Fisher, 5 Wis., 472; Haley v. Western Transit Co., 76 Wis., 344.
    The power of the court to act in the disposition of a trial upon facts conceded by counsel is as plain as its power to act upon the evidence produced. Oscanyan v. Arms Co., 103 U. S., 261; Lindley v. A. T. & S. F. Rd. Co., 47 Kans, 432, 28 Pac. Rep., 201; Emmerson v. Weeks, 58 Cal., 382.
    To the same effect is the case of Stewart v. Hamilton, 3 Rob. (26 N. Y. Super.), 672.

      This court has never decided the question explicitly. There is, however, an allusion' to the rule in Cin. Gas & Elec. Co. v. Archdeacon, Admr., 80 Ohio St., 38.
    There should have been a contract by which the defendant employed the plaintiff to procure a purchaser. Castner v. Richardson, 18 Col., 346, 33 Pac. Rep., 163; Pierce v. Thomas, 4 E. D. Smith (N. Y.), 354; McVicar v. Roche, 77 N. Y. Supp., 501.
    The unauthorized acts of the plaintiff in procuring purchasers were not ratified by the defendant afterwards selling the property to those persons. Loving Co. v. Hesperian Cattle Co., 176 Mo., 330, 75 S. W. Rep., 1095.
    What we claim here is that the opening statement of counsel for the plaintiff was an admission that no contract had ever been made between his client, the plaintiff, and the defendant, by which the latter employed the former to act as his agent to find a purchaser for his land. If' this be the proper interpretation of his opening statement, then the trial court was under obligations to direct a verdict for the defendant.
   Donahue, J.

The important question presented by this record is whether a trial court is authorized to withdraw a cause from the jury and enter a judgment of non-suit upon the statement of counsel as to what plaintiff expects to prove in support of the allegations of his petition. This question, in its exact form, has never been adjudicated in this state, but there are many cases bearing upon the principle involved, particularly the case of Cin. Gas & Elec. Co. v. Archdeacon, Admr., 80 Ohio St., page 27. In the opinion at page 38, it is said: “When the facts are conclusively determined in a manner not affected by any error, nothing remains to be done but to apply the law to those facts, and that application is a function of the court. And this is true at whatever stage of the progress of a case, or in whatever manner the material facts may be thus conclusively established, whether it be by the statements of counsel, made for the purposes of the trial, or by failure of the party upon whom the burden of proof rests to offer substantial evidence in favor of all the allegations which the issues require him to support, or by the concurrent testimony of all the witnesses, or by an agreed statement of facts, or by a special verdict, or by answers of juries to interrogatories.”

In the case of Lindley v. A. T. & S. F. Rd. Co., 47 Kans., 432, it was held that: “Where the plaintiff, in making the opening statement of his case to the court and jury, admits or states facts the existence of which absolutely precludes a recovery by him, the court may close the trial at once and give judgment against him.”

In the case of Emmerson v. Weeks, 58 Cal., 382, this language is used: “It would be much better not to non-suit on an opening statement, unless it is clearly made and it is plainly evident therefrom that no case can be made out.”

While it is certainly true that a court should exercise great caution in summarily disposing of a case upon the statement of counsel, yet that it has the right and authority to do so in a proper case, cannot be doubted. Otherwise the time of the court and jury would be wasted to no purpose, for the result, if the evidence were introduced, must necessarily be the same. It is perhaps true that counsel, in stating his case, may inadvertently overlook some important facts that he is required to establish by the evidence, and for that reason, after the sufficiency of his statement has been challenged, he should then be given full and fair opportunity to explain and qualify his statement and make such additions thereto as, in his opinion, the proofs at his command will establish. But when counsel has covered in detail all of the matters and things he proposes to offer in support of the essential averments of his petition, and he has been given such opportunity to explain and qualify his statement and make any proper additions thereto, and it still appears that such facts, if established by the evidence, would not sustain the averments of the petition and would not authorize verdict and judgment in favor of the plaintiff, it is not only the right but the duty of the court to act and prevent the unnecessary delay of a long and tedious trial and the waste of the time of the court and jury, that should be given to other litigation. Such a motion on the part of the defendant is an admission, for the purposes of the motion, that the facts proposed to be proven by plaintiff are true, and, therefore, it is in substance and effect, for the purposes of the motion, an agreed statement of facts.

The only duty of a jury is to determine disputed questions of fact, and when facts are admitted, the function of the jury is ended, and the proper judgment to be entered upon the facts so established by the admission of the parties, involves only a question of law for the court.

In the case of Gas Co. v. Archdeacon, Admr., supra, the third paragraph of the syllabus is as follows: “Though issues joined in a case are triable to a jury, when the facts are conclusively determined in a manner not affected by material error, the application of the law to such facts is a function of the court, and its exercise, when properly invoked, becomes a duty.”

In the case of Oscanyan v. Winchester Repeating Arms Co., 103 U. S., 263-264, it was held that: “The.power of the court to act in the disposition of a trial upon facts conceded by counsel, is as plain as its power to act upon the evidence produced. * * * Counsel should be allowed to explain and qualify his statement, so far as truth will permit; but if, with such explanation and qualification, it should clearly appear that there could be no recovery, the court should not hesitate to so declare and give such direction as will dispose of the action.”

The second question presented by this record is whether the common pleas court erred in holding that the facts that the plaintiff proposed to establish by the evidence would not, if so established, sustain the essential averments of his petition, and support a verdict and judgment for plaintiff.

It is claimed in the brief of counsel for plaintiff in error that the petition was read in the opening statement and that, as the petition states a cause of action, therefore, his statement was sufficient. It does not appear from the bill of exceptions that the petition was read, but that fact does appear from the entry in the common pleas court, of the date of July 14, 1910. There is no contention here made that the averments of the petition are not sufficient,- but on the contrary the claim is that the evidence the plaintiff proposed to offer would not sustain the averments of this petition. The petition avers a valid contract. The plaintiff offered to prove, in support of this averment, certain conversations had between himself and Mr. Morrison to show that there was an express, or at least an implied, contract that the plaintiff should act as the agent for defendant in the sale of this property, and these conversations counsel for plaintiff stated in detail, and the motion to withdraw the cause from the jury admits that these conversations were had in manner and form as claimed for them by counsel for plaintiff. The first of these conversations, touching the sale of this property, was in December, 1908, and the substance of it, as stated by counsel, is that plaintiff asked defendant to permit him to act as his agent and find a purchaser for his real estate. Defendant told him that there was then an option on the land which would not expire until the first of the following'month. That “if the property did not sell under this option he would just as leave Mr. Cornell would have it for sale as any other person.” That is the whole extent of the first conversation and all that counsel claimed for it, and that certainly does not amount to a contract. The next conversation was in January following, and in that conversation plaintiff asked if the property had sold under the option. Defendant said “No.” Plaintiff told him he had persons to whom he thought he could sell the property; they would take it. Defendant asked him who they were, and thereupon proposed to plaintiff that if “he would tell him who these prospective purchasers were, he would tell plaintiff how much the other people were to pay, or something to that effect.” Thereupon, plaintiff accepted the proposition tendered him by defendant and told him the names of the prospective purchasers. So far as statement of counsel is concerned, that is all there was of that conversation. Clearly the only contract it tends to prove is a contract that defendant would tell plaintiff the purchase price named in the option if plaintiff would tell him the names of his prospective purchasers.

Instead of tending to prove that defendant either expressly or impliedly agreed that plaintiff should act as his agent in the sale of this property, the fair construction of the language used by the defendant directly negatives such intention on his part, for, instead of agreeing to appoint him as his agent for the sale of this property, he made an entirely different proposition, and that was that he would exchange certain information that he possessed, for information that plaintiff possessed, touching possible purchasers.

These two conversations were the only ones, and all that plaintiff proposed to prove in support of the averment of his petition that a valid contract of agency for the sale of this real estate had been made between Mr. Morrison, as owner, and Mr. Cornell, as agent, and, admitting that counsel for plaintiff truly stated these conversations in detail, they fall far short of establishing such a contract.

It is true that proofs of other facts are tendered in connection with these conversations, that might g-o to show that Mr. Morrison had acted in bad faith and availed himself of the information he received from Mr. Cornell, contrary to the intention and expectation of Mr. Cornell, and had thereby secured an unfair advantage; but, even if that were conceded, it would not avail the plaintiff anything in the present state' of the pleadings. However, there were no limitations placed upon Mr. Morrison as to the use he should make of this information. He had a right to stand upon the proposition that he made to Mr. Cornell, and that proposition was that he would tell Cornell the purchase price named in the option that had just expired, if he, Cornell, would tell him the names of the purchasers he had in view. Mr. Cornell accepted that proposition and gave him that information, and there is no claim but that Mr. Morrison then furnished Mr. Cornell the information that he had agreed to give him. While the contract for such exchange of information may have been a very unprofitable one for Mr. Cornell, yet that was for his consideration at the time he made it, and he cannot now be heard to complain of the transaction. If Mr. Morrison had asked him for the names of these purchasers without any further explanation or any further statement as to what he would do for Mr. Cornell in return for such information, it might very properly be said that the fact of his asking for the information which was valuable to him, was an acceptance of the terms upon which Mr. Cornell had proposed to give it to him, i. e., as his agent for the sale of this real estate, with the understanding and expectation of being paid a commission therefor. But, when he qualifies his request for the information by saying to him, in effect, you give me this information and I will give }^ou other information in my possession in exchange therefor, it necessarily excludes the idea that he had accepted the proposition made by Mr. Cornell to act as his agent, and Mr. Cornell ought ■ to have so understood it. It leaves no question for the jury whatever. The language is plain and unequivocal and is not subject to the construction contended for by counsel for plaintiff in error. Plaintiff in error was required to prove by the preponderance of the evidence the averments of his petition that there was a contract, either express or implied. It is clear that there was no such express contract, and it is equally clear that the language used by Mr. Morrison directly refutes the claim that' there was an implied contract of the kind and character pleaded in the petition, but on the contrary that there was an express contract of a very different nature.

The judgment of the circuit court affirming the judgment of the common pleas court is affirmed.

Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson and O’Hara, JJ., concur.


author: Johnson, J.

text:
    Niles, Assignee, v. Olszak.

      Stockholder in savings and loan association — May set off against its assignee — Money on deposit against stock subscription — Respective rights of creditors and stockholders.

    1. A stockholder in a savings and loan association organized under the laws of this state, is entitled, when the association becomes insolvent, to set off, as against its assignee for the benefit of creditors, a claim for money which he has on deposit with the association, against his liability for the unpaid part of his stock subscription.
    2. The assets of a corporation, including unpaid subscriptions t.o its capital stock, constitute a trust fund for the-benefit of its creditors, which cannot be disposed of by it, without consideration, or fraudulently, to the injury of such creditors.
    (No. 13103
    Decided December 17, 1912.)
    Error to the Circuit Court of Lucas county.
    The Dorr Street Savings Bank Company, of Toledo, made an assignment to C. F. M. Niles for the benefit of its creditors. Niles filed his account in the probate court of Lucas county, to which exceptions were filed by certain creditors of the bank. The exceptions were based on the fact, that the assignee had allowed certain stockholders who were indebted to the savings bank company for unpaid stock subscriptions, to set off against the same, the amounts due them on certain deposits, which they had in the bank. The exceptions were sustained by the court. The case was appealed to the common pleas court, which held that the action of the assignee in allowing the off sets was unauthorized, and sustained the exceptions.
    In proceedings in error in the circuit court, that court affirmed the judgment of the common pleas court and the cause is here on proceedings in error to reverse the judgments below.
    The common pleas court made a finding of facts as follows:
    “(a) That The Dorr Street Savings Bank Company was at all times herein named, a corporation duly organized and existing under and by virtue of the Savings and Loan Association Act, being Section 3797 of the Revised Statutes of Ohio; that on the 16th day of April, 1908, The Dorr Street Savings Bank Company ceased to do business and made an assignment to C. F. M. Niles, as assignee for the benefit of the creditors of said bank; that on said date the said The Dorr Street Savings Bank Company was, and ever since has been, insolvent, and has ceased to do business, and that the assets of said bank are, and have been wholly insufficient to pay the liabilities to depositors and other creditors in full.
    “(b) That at the date of said assignment and prior thereto, the persons named in the schedule hereinafter set forth, were indebted to The Dorr Street Savings Bank Company for unpaid stock subscriptions theretofore made by them to the stock of said bank, in the amounts set opposite their respective names in said schedule.
    “(c) Said Dorr Street bank on said dates was indebted to said parties respectively as depositors of said bank in amounts equal to or greater than the amounts of their respective obligations for unpaid stock owned by them in said bank.
    “(d) That on the dates set forth in the schedule following, the said assignee did allow said parties-respectively to offset against their aforesaid respective obligations for unpaid stock, the amounts due them respectively on their respective deposits in said bank, to-wit:
    Name. Amount. Date.
    “A. J. Kujawa.....$250.00......July 27, 1908
    Joseph Tafelski..... 70.66 ....August 5, 1908-
    Frank Zielinski..... 150.00 ....August 3, 1908
    M. Stolmaszak..... 150.00. .September 3, 1908
    John Haidel....... 500.00 ....August 5, 1908
    Emil Koeppe....... 250.00 ....August 1, 1908”

      Messrs. Smith & Beckwith and Mr. Clem V. Wagner, for plaintiff in error.

      Mr. Eugene Rheinfrank and Mr. Gustavus Ohlinger, for defendant in error.
   Johnson, J.

The only question presented by this record is, can a stockholder in a savings and loan association, organized under the statutes of this state, when the company becomes insolvent, set off as against its assignee for the benefit of its creditors, a claim for money, which he has on deposit with the loan association, against his liability for the unpaid part of his stock subscription?

The courts below held that he could not do so, notwithstanding the general terms of our statute on the subject of set-off. They adopted and applied the doctrine, that the capital stock of a corporation, constitutes a trust fund for the benefit of the creditors of the company, and that a subscriber to its stock cannot, in a suit brought to collect his subscription, set up a counterclaim or set-off. This doctrine is stated in 3 Thompson on Corporations (1 ed.), Section 3787, thus:

“The first reason generally given for the rule denying the right of set-off after a corporation has become insolvent, is the theoretical reason which often operates to deny the right of set-off in courts of law, which is, that there can be no set-off unless the debts are mutual and in the same right. Briefly explained, the meaning is, that when the assets have been impressed with the quality of a trust fund for the equal benefit of all the creditors, their custodian, whether the corporation, its directors, a receiver, assignee, or other liquidator, holds them, not in the right of the corporation against which the set-off is claimed, but in the right of the creditors. * * * Such a debt, as we have seen, is deemed in equity a part of the capital stock of the company, and is a trust fund to be devoted to the payment of all its creditors; and hence, whilst the company, as long as. it continues a going concern, may call it in, and the stockholder, without doubt, set off against it any demand he may have against the company, yet when the company becomes insolvent, and there is not enough to satisfy all the creditors, this trust fund manifestly cannot be appropriated by a creditor who is a stockholder, to the exclusive payment of his own claim.”

This view of the law has been approved and followed by many authorities in this country, among which are 1 Cook on Corporations (6 ed.), Section 193; Sawyer v. Hoag, 17 Wall., 610; Welch v. Sargent, 127 Cal., 72; Killen v. Barnes, 106 Wis., 546; Richardson v. Merritt, 74 Minn., 354; Efird v. Piedmont, etc., Co., 55 S. Car., 78; Wilkinson v. Bertock, 111 Ga., 187; Shickle v. Watts, 94 Mo., 410.

The trust fund theory as to the capital stock and assets of corporations, seems to have had its origin in the ingenuity of Judge Story, who announced it in Wood v. Dummer, 3 Mason (U. S.), 308, although in that case the doctrine was not carried to the extent, to which later cases have gone, in denying to the stockholder a set-off, in cases to enforce his liability as a stockholder, or for unpaid stock. In that case, an incorporated bank divided three-fourths of its capital stock before the expiration of its charter, among the stockholders, without providing funds which ultimately were sufficient to pay its outstanding bank notes. It was held that the capital stock was a trust fund for the payment of the bank notes and might be followed into the hands of the stockholders. The division of the stock under such circumstances, was a fraud on the creditors.

The rule in question here, was announced by the supreme court of the United States, in Sawyer v. Hoag, 17 Wall., 610. Sawyer was liable for $4,250.00 on stock subscription to an insurance company. The company became insolvent, and Sawyer bought for a small sum, a certificate of an adjusted loss claim of $5,000.00 against the company, which he sought to have set off against his unpaid stock after the company was adjudged bankrupt. The court held he was not entitled to the set off; that the subscription for stock was a trust fund for the creditors which could not be appropriated by the debtor to the exclusive payment of his claim. And the court say that such transaction “should be subject to a rigid scrutiny, and if found to be infected with anything unfair towards such third person, calculated to injure him, or designed intentionally and inequitably to screen the stockholder from loss at the expense of the general creditor, it should be disregarded, or annulled, so far as it may inequitably affect him.”

As already stated, these decisions were followed, in many other cases until the doctrine as stated above, was widely accepted. However, in a more recent case in the supreme court of the United States, Clark v. Bever, 139 U. S., 96, there was a modification of the rigid rule that the stockholder must, under all circumstances, pay the full face value of the stock, and that the stock at its face value, is a trust fund for the benefit of the creditors, which the stockholder may be compelled to make good. In that case, an Iowa railroad corporation being indebted to a construction company-in the sum of $70,000, which it was unable to pay in money, had a settlement with the latter, whereby the debt was paid in shares of the stock of the railroad company at the par value of $350,000. The stock was taken at 20 cents on the dollar but was not at the time worth anything in the market. Greene, a member of the construction company, received 910 shares as his part. Subsequently the railroad was sold under a decree of foreclosure, and, Greene having died, suit was brought by a creditor of the company to hold his estate liable for the difference between what was paid for the stock and its face value, on the ground that the stock of the corporation was a trust fund for creditors, and that as between creditors and stockholders the latter were bound to account for its par value, without reference to the good faith of the transaction. But the court refused to so hold, and denied the relief.

A similar conclusion was arrived at in Fogg v. Blair, 139 U. S., 118, the extent to which the court went being that unpaid subscriptions to the stock of a corporation, constitute a trust fund for the benefit of its creditors which may not be given away or disposed of zvithout consideration, or fraudulently, to the prejudice of such creditors.

There have been a number of holdings, in cases which involved the right of the stockholder to a set-off, where his liability for unpaid subscriptions or his statutory liability as a stockholder was being enforced, in which the set-off was allowed. Among these are: Cahill v. Original Big Gun Assn., 94 Md., 353; Talmadge v. Fishkill Iron Co., 4 Barb., 392; Christensen v. Colby, 43 Hun, 362; Fidelity Ins., Trust & S. D. Co. v. Mechanics Savings Bank, 97 Fed. Rep., 297; Ball v. Anderson, 196 Pa. St., 89; Wheeler v. Millar, 90 N. Y., 359.

In Cahill v. Big Gun Assn., supra, which was a suit to enforce the statutory liability of a stockholder, the court, in its opinion, cites a number of cases in support of its view.

In that case the following language used in Pierce v. Topeka Commercial Security Co., 60 Kans., 164, is quoted with approval:

“It is strongly contended that the claims .of a stockholder against the corporation do not constitute a legal set-off, because of a want of mutuality between the parties to the action. A claim of the stockholders is not a set-off in its technical sense, but it is an equitable defense which he is entitled to make. When he becomes a bona ñde creditor of the corporation he is clothed with the same equity as contract creditors.”

Although there is a distinction between a proceeding to collect unpaid subscriptions for stock, and one to enforce the statutory liability of a stockholder, they are both for the purpose of creating a fund for the protection and benefit of the creditors of the company. The suit to enforce the statutory liability, may be brought by creditors onlv after the insolvency of the corporation, and for the purpose of creating a fund to be applied to the payment of the debts of the company after it has been disclosed that the corporation is unable to pay them. It would seem that if a stockholder were entitled to set off a claim against the company, against his statutory liability in a proceeding to create such fund for the creditors, it would a fortiori be just and equitable, to allow him to set off a claim which he had in good faith against the company, in a proceeding by an assignee or receiver to enforce an unpaid subscription to the stock for the same purpose. In the latter case the relation of the parties is mutual. His claim is due to him from the corporation and the claim for unpaid stock is due from him to the corporation. There has been no ruling by this court on this question, although it has been in constant harmony with other jurisdictions, in holding that the property and assets of a corporation are a trust fund for the benefit of its creditors, and that, if misappropriated or diverted, the court will follow it as far as it can be traced. But the question still remains, whether, in the ascertainment of the amount of the fund, a stockholder would be justly entitled to the set-off, as in other cases, under our statute.

It must be noted that the set-off claimed in this case is a deposit in a loan and savings association, against indebtedness for the unpaid part of subscriptions to the stock of such association. It is not a case in which there is any element of fraud. The stock was not issued under the pretense of being or purporting to be, fully paid, when in fact it was not paid for. There was no contrivance to release the debt for the stock, and substitute a loan therefor. It is not a case in which a corporation had held itself out to the public as having a larger paid-up capital, than it actually had. Nor is it a transaction, similar in any of its phases to those out of which the controversies arose, in which the rule contended for here was originally, and in many of the later cases, declared and enforced. This savings bank was organized under Section 3797 et seq., Revised Statutes. The statute prescribes the method of the organization and operation of such institutions. It provides that no such association shall commence business until at least one half of each subscription has been fully paid up. There is no claim that this was not done, and the presumption is that it was done. The finding of facts shows that 'the association was duly organized under the statute.

There is no claim that it ever pretended that any more than 50 per cent, of each subscription had been paid in, or that anyone ever gave credit, on the faith that all of its stock had been paid in full.

Section 3799, Revised Statutes, provides that the board of directors may prescribe the terms, on which deposits shall be received and paid out and the manner of conducting the business, and that such rules and regulations, shall be obligatory on the depositors. Every depositor and every creditor doing business with such banking company, is presumed to do so with knowledge of the laws relating to it. It is common knowledge that many of the subscribers to the stock of such savings associations, make their deposits therein, with the intention and understanding that such deposits shall be made and used for the purpose of paying for the stock, and that such associations have rules and regulations with reference to deposits and to the conduct of their business generally. Of course this bank could, at any time, have called in the balance of these stock subscriptions, and the depositors would have been entitled to set off their deposits against the claim. And in the consideration of this question it must be noted, that, under the rule in Ohio, the deposits were the property of the bank from the time of the making of the deposit. In Bank v. Brewing Company, 50 Ohio St., 151, it is held that: “Money received by a bank on general deposit becomes the property of the bank, and its relation to the depositor is that of debtor, and not of bailee or trustee of the money.” At page 158 of the decision, it is said: “Our statute secures the right of set-off to parties sustaining the relation of debtor and creditor, between whom there are such cross demands, and those existing between banks and their customers are not excepted from its operation; so that, if Schlegel, when the check was drawn out, had brought an action on his claim against the bank, the latter could have set off against it the debt which Schlegel owed the bank. And it is clear the right of set-off was not defeated or impaired by the check, even if it be treated as an assignment. The statute plainly protects the right of set-off, when it existed between the parties, notwithstanding the assignment, by either, of his demand.”

And at page 159: “As we have, seen, the funds on general deposit in a bank, are the property of the bank. Properly speaking, the right, in such case, is that of set-off, arising from the existence of mutual demands. The practical effect, however, is the same. The cross demands are satisfied so far as they are equal, leaving whatever balance that may be due on either, as the true amount of indebtedness from one party to the other.”

Section 11321 General Code, on the subject of counterclaim and set-off, is definite and comprehensive: “When cross-demands have existed between persons under such circumstances that if one had brought an action against the other a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by assignment by the other, nor by his death. The two demands must be deemed compensated so far as they equal each other.”

The set-off provided for in that section, available against a party, is equally available against his assignee for the benefit of creditors.

In Hade v. McVay, Allison & Co., 31 Ohio St., page 231, in which it was claimed that a set-off could not be made as against a receiver of a national bank, the court, at page 238, say: “The receiver holds to the bank and its creditors the relation, substantially, of a statutory assignee. A right of set-off, perfect and available against the bank at the time of his appointment as receiver, is not affected by the bank’s insolvency. He succeeds only to the rights of the bank existing at the time it goes into liquidation.”

In Armstrong, Receiver, v. Warner, 49 Ohio St., 376, in which a set-off was allowed the debtor of the bank of which Armstrong was receiver, it is held: “The allowance of such set-off, is not the creation of a preference by the bank, but the ascertainment merely of the just amount due on the debtor’s obligation, and may be enforced against the receiver of the bank.”

The same rule was enforced in Second Natl. Bank v. Hemingray, 34 Ohio St., 381.

In announcing a similar holding in Barbour v. The Bank, 50 Ohio St., page 101, the court say: “The argument, that by allowing the judgments to be set-off, the fund for the benefit of the creditors of the shoe company will be thereby diminished, resulting in an inequality of distribution among the creditors, does not commend itself to us. Upon equitable grounds we may apply the language of the vice-chancellor, in the matter of the Receivers of the Globe Ins. Co., 2 Edw. Ch., 625: ‘A set-off in such case is not a means of paying one debt in preference to other debts which the bankrupt or insolvent owes; for, to the extent of the demands set off or compensated, there was no debt — from the moment they were contracted, they extinguished each other. Hence, the operation of the set-off is, not to pay, but to ascertain a debt made up of the difference between the amounts of respective debits and credits.’ ”

The case of Gates, Admr., v. Tippecanoe Stone Co., 57 Ohio St., page 60, relied on by the defendant in error, we do not think assists in the solution of the question made here. In that case the members of a partnership created a corporation, fixing its capital stock at a sum equal to an inflated value placed on the partnership property. They elected themselves managing officers, transferred the partnership property to the corporation at the inflated value, in exchange for its entire capital stock, which they caused to be issued as fully paid up to the partners, in proportion to their interest in the partnership. The corporation becoming insolvent, the court held that the transaction was a fraud on the corporate creditors, and held that each partner should be regarded as an original subscriber for so much of the stock as Avas thus issued to him, and credited on his subscription for the actual value only, of his interest in the partnership property, transferred to the corporation, in payment of such subscription, and that the balance after applying this credit, should be deemed a debt due from him to the corporation, and therefore corporate assets. Of course the ground upon which the decision in that case was put was the fraudulent transaction which was involved in the formation of the company. The case was different from this case. Here, there is no fraud in the transaction. In that case, however, the court credited the subscriber with the value of the property which he actually put into the company, and charged him with the balance due on the subscription. In this case, the subscribers are really asking that the same thing be done, and that a balance shall be struck between the amount of their deposit, and the amount of their subscription.

We have no disposition to question the soundness or the valuable effect, of rules which throw around the assets of corporations every proper safeguard for the protection of their creditors, and which hold stockholders who compose them, and directors and trustees who manage them, to strict accountability in reference to all transactions concerning them. The astonishing rapidity with which these corporations have grown, in keeping up with the development of the commercial and industrial business of the country, requires the application of salutary legal principles to these new conditions.

As was said by the court in Clark v. Bever, 139 U. S., 96, supra: “When the interest of creditors require, those who hold shares of stock in a corporation, purporting to be, but which are shown not to have been, paid for to the extent of their face value, should be held liable to pay for such shares unless it appears that they acquired the stock under circumstances that did not give creditors and other stockholders just ground for complaint.”

It is clear that under the Ohio statutes these depositors could have set off their deposits against any debt due to the bank, created in the usual course of business. In view of the nature of this association, the manner of its creation and operation, the relation its stockholders and depositors sustain to it, the freedom from every element of fraud in the case, the fact that creditors and depositors alike dealt with it, charged with knowledge of the statutory provisions relating to it, we think it is not a case for the application of such a ruling as is contended for by defendant in error.

The judgments of the courts below will be reversed and the cause remanded, with instructions to allow the set-off shown in the report of the assignee.

Judgment reversed.

Davis, C. J., Spear, Shauck, Donahue and O’Hara, JJ., concur.