text:
    Pretzinger v. Pretzinger.

      Husband and wife — Liability of husband to wife for support of child after divorce.

    1. The obligation of the father to provide reasonably for the support of his minor child, until the latter is in a condition to provide for his own support, is not impaired by a decree which divorces the wife a mnculo, on account of the husband’s misconduct, gives to her the custody, care and nurture of the child, and allows her a sum of money as alimony, but with no provision for the child’s support.
    2. The mother may recover-a reasonable compensation from the father, for necessaries furnished by her to the child after such decree, and may maintain an original action for such compensation against the father, in a court other than that in which the divorce was granted.
    (Decided December 13,1887.)
    Error to the Circuit Court of Montgomery County.

      The original action was commenced in February 1881, in the court of common pleas of Montgomery county by Izora Pretzinger, the defendant in error, against Jacob Pretzinger, the plaintiff in error.
    The petition reads as follows :
    “The plaintiff, Izora Pretzinger, for her petition against the defendant, Jacob Pretzinger, says, that on or about the 26th day of October, A. D. 1865, she was married to the defendant ; that there was issue of said marriage a son, Albert J. Pretzinger, who still lives, and is now fourteen years of age; that at the January term of the court of common pleas in and for the county of Darke in the state of Ohio, A. D. 1875, such proceedings were had by said court, in a certain action for divorce therein pending, in which action said plaintiff herein was plaintiff, and said defendant herein was defendant, that said plaintiff was, on account of the misconduct and ill treatment and neglect of said defendant, by the judgment of said court of common pleas, divorced from said defendant, and awarded ‘ the ,custody, nurture, education and care of said minor child/ Albert J. Pretzinger. Plaintiff further says that ever since said decree of divorce was entered, said plaintiff and defendant have lived separate and apart, and said Albert J. Pretzinger, son of the said defendant, has been boarded and clothed and cared for by the plaintiff, and that such boarding, clothing, care and attention so furnished said son of the defendant by the plaintiff, were necessary and appropriate to his comfort and condition in life, and were of the value of not less than two hundred and fifty-eight dollars per year. Said plaintiff further says that at the time said decree of divorce aforesaid was granted said defendant herein was insolvent, but that he lias become and now is solvent and well able to support his said son. Plaintiff says that there is due and owing her from the defendant for said boarding, clothing, and care, a specific account of which is hereto attached, marked exhibit “ A,” the sum of $1,548.00, and interest; where foresaid plaintiff prays judgment against said defendant,” etc.
    A demurrer to the petition was sustained, and judgment was rendered for the defendant. The district court reversed the judgment, and remanded the cause to the court of common pleas for further proceedings. The defendant thereupon filed an answer, in which he alleges :
    “That plaintiff in said cause, in Darke county common pleas court, asked that the care, custody, and nurture of their said child be awarded to her, and that reasonable alimony be decreed her for the support of herself and their said child. That on the final hearing thereof the court decreed to the said plaintiff a divorce on the grounds of gross neglect of duty, and for no other cause, and he denies that said divorce was granted on account of ill treatment of plaintiff by this defendant.
    “That the said court further decreed to plaintiff the care and custody of their said child at her special request, and against the wishes and requests of this defendant, and until the further order of said court, and decreed permanent alimony in the sum of seventy-five dollars, in addition to the sum of fifty dollars in said cause allowed as temporary alimony, which said court found to be a reasonable sum for the support of herself and said child, as prayed for in her said petition; and that this plaintiff then and there appeared in open court and agreed to accept said sum, and did then and there acccept said sum in full satisfaction of all alimony that she was or might be entitled to in the premises.”-
    The plaintiff demurred to the answer; the demurrer was overruled and exception taken.
    The plaintiff filed a reply in which she says:
    “ That when she was divorced from said defendant as in said petition stated, she understood that there was allowed to her as alimony in said cause the sum of seventy-five dollars. If, in addition thereto, fifty dollars was allowed to her therein, she does not know anything about it except what is stated in said answer. She denies that said court of common pleas, of Darke county, Ohio, in that case allowed anything whatever for the support of their said child, A. J. Pretzinger. She denies that said court found said sum of $75.00 as allowed to her, or any other sum that may have been allowed in said ease, to be a reasonable sum for the support of herself and her said child as in' said answer stated. She denies that she then and there appeared in open court and accepted ‘ said sum in full satisfaction for all alimony that she was or might be entitled to in the premises/ as stated in said answer. Plaintiff'denies that in said proceedings for divorce she asked anything for the support of their said child, and denies that said court ever allowed her anything for his support, nurture, or maintenance.”
    Neither party requiring a jury, the cause w.as submitted to the court on the issues joined and the evidence; and the court found the issues for the plaintiff, and rendered judgment accordingly. The defendant filed a motion to vacate and set aside the judgment, and for a new trial: First, because the judgment was contrary to law; second, because the judgment was contrary to the evidence; third, because of other errors apparent on the record. This motion was overruled, and exceptions taken to the ruling.
    No exceptions were taken by the defendant on the trial to the court; and no bill of exceptions was taken embodying any of the evidence.
    The circuit court, on petition in error by the defendant, affirmed the judgment of the court of common pleas; and this proceeding is prosecuted to reverse the judgment of the circuit court.

      H. M. Cole and W. Belville, for plaintiff in error.
    The divorce was a final separation of plaintiff and defendant and, in legal contemplation, they are strangers. When a divorce is granted and the custody of the children awarded to the mother, thereby depriving the father of the right to their society and services, he is, as to her, relieved from all further obligations. The right to the society and services of the children, and the obligation to maintain them, go .together. Finch v. Finch, 22 Conn. 411; Fitler v. Fitler, 33 Pa. St. 50; Pawling v. Willson, 13 John. 192; Husband v. Husband, 67 Ind. 583; Harris v. Harris, 5 Kan. 46; Hancock v. Merrick, 10 Cush. 41; Dedham, v. Natick, 16 Mass. 140; Schoul. Dom. Rel. 322; 2 Bish. Mar. & Div. secs. 556, 557, 558.
    The remedy of the defendant in error was by an application to modify the order, in the original action for divorce, relating to the custody of the child. The jurisdiction of the court in that respect was continuing. Hoffman v. Hoffman, 15 Ohio St. 427; Baily v. Schrader, 34 Ind. 260; Williams v. Williams, 13 Ind. 523; Harvey v. Lane, 66 Me. 536; Neil v. Neil, 38 Ohio St. 558; Shaw v. McHenry, 52 Iowa, 182; Sullivan v. Learned, 49 Ind. 252.
    A father is not bound by the debts of his son, even for necessaries, unless the circumstances show an authority given or to be legally inferred. Gordon v. Potter, 17 Vt. 348; Cromwell v. Benjamin, 41 Barb. 558; Schoul. Dom. Rel. 327-330.
    The custody and nurture of the child having been awarded to defendant in error, so long as the judgment stands unmodified and unreversed, she is estopped by the record to bring an action against the plaintiff in error, in another jurisdiction, on account, for the support of the child. Husband v. Husband, 67 Ind. 583; Herman on Estoppel, secs. 26-31, 37, 467.

      Craighead & Craighead, for defendant in error.
    The father is bound for the maintenance of his infant child. Neither an express or implied promise is necessary. The liability grows out of his natural duty. Dennis v. Clark, 2 Cush. 347-352; Van Valkinburgh v. Watson, 13 John. 480; Fowlkes v. Baker, 29 Tex. 135; Vail v. Vail, 10 Barb. 69; Edwards v. Davis, 16 John. 285; Jefferson Tp. v. Letart Tp. 3 Ohio, 100. On the other hand the mother is not so liable. E. B. v. E. C. B. 28 Barb. 303; Bartley v. Richtmyer, 4 N. Y. 46; South v. Denniston, 2 Watts, 474; 2 Kent Com. pt. 4, secs. 29, 184; Commonwealth v. Murray, 4 Binney, 487.
    The father is not relieved of his obligation to support his minor children by a decree granting divorce to the wife, accompanied by an order giving custody of children to the mother until further order of the court. Miller v. Miller, 64 Mc. 488; Marlborough v. Hebron, 2 Conn. 20; Stanton v. Willson, 3 Day, 37; Cowls v. Cowls, 3 Gilman, 435; Buckminster v. Buckminster, 38 Vt. 248; Courtright v. Courtright, 40 Mich. 633; Finch v. Finch, 22 Conn. 417; Welch’s App., 43 Conn. 342; McCarthy v. Hinman, 35 Conn. 538; Plaster v. Plaster, 47 Ill. 290; Conn v. Conn, 57 Ind. 323; Wilson v. Wilson, 45 Cal. 399; Petersine v. Thomas, 28 Ohio St. 601; Holt v. Holt, 42 Ark. 495; Kinsey v. State, 98 Ind. 351; 2 Bish. Mar. and Div. (5th ed.) secs. 552, 552a, 556.
    Under our statute a divorce contemplates a final separation of the parties. Their paths in life thenceforth diverge, and in legal contemplation, they are to each other as strangers. Petersine v. Thomas, 28 Ohio St. 569; Plaster v. Plaster, 53 Ill. 445. If a father cast off his children, and a third person furnish them necessaries, such third person may recover from the father. If, after divorce, the husband and wife are strangers, all duties and obligations to each other being ended, why is it the law will not imply a promise by the late husband to pay the wife for necessary maintenance furnished the infant by her, after the separation ?
    A careful examination of cases cited in plaintiff’s brief will show that in the states where it has been held that the divorced wife, with custody of the children, cannot recover for necessary support furnished by her after separation, statutes exist to the effect that the mother is under equal obligations with the father to maintain their infant children, and in most cases the decision is put upon the ground that the law charged her equally with the father with the support, and, in such case, if she had any right, it would be to compel contribution only.
    On the other hand, the proposition that a divorced wife, who is without fault, may pledge her husband’s credit for necessaries for the children who are in her custody through his fault, or his consent, but not if she holds the children without fault upon his part and against his wishes, is established by the following cases : Bazeley v. Forder, 3 Q. B. L. R. 559; Reynolds v. Sweetser, 15 Gray. 78; Kimball v. Keyes, 11 Wend. 33; Walker v. Laighton, 31 N. H. 111; Gill v. Read, 5 R. I. 343; Courtright v. Courtright 40 Mich. 633; Stanton v. Willson, 3 Day, 37; Welch’s App., 43 Conn. 342.
   Dickman, J.

Issues of fact were joined between the parties, and upon submission to the court they were found for the defendant in error; but no exceptions were taken on the trial, and the record contains no bill of exceptions embodying the evidence. The only questions before us for consideration, are such as may arise upon the original petition and subsequent pleadings. It is contended in behalf of Jacob Pretzinger that the original petition did not state facts sufficient to create a liability on his part, and that the court of common pleas should have entered up judgment in his favor, on the pleadings.

Izora Pretzinger was divorced from her husband, by reason of his misconduct, and his ill-treatment and neglect of her; and was, in consequence,- awarded the custody, nurture, education and care of their minor child, then about eight years of age. The court decreed an allowance to her as alimony, but it does not appear that any allowance was made to compensate her for the expense of her son’s maintenance. For several years after the granting of the divorce, she furnished to her son such boarding, clothing, care and attention, as were necessary and appropriate to his comfort and condition in life. When the divorce was granted the father was insolvent, but at the rendition of the judgment in the case at bar, he was solvent and able to support his son.

The duty of the father to provide reasonably for the maintenance of his minor children, if he be of ability, is a principle of natural law. And he is under obligation to support them, not only by the laws oF nature, but by the laws of the land. As said by Chancellor Kent, “The wants and weaknesses of children renders it necessary that some person maintains them, and the voice of nature has pointed out the parent as the most fit - and proper person.” 2 Kent’s Com. 190*; and see Trustees Jefferson Tp. v. Trustees Letart Tp., 3 Ohio, 100; Edwards v. Davis, 16 John. 281. This natural duty is not to be evaded by the husband’s . so conducting himself, as to render it necessary to dissolve the bonds of matrimony, and give to the mother the custody and care of the infant offspring. It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, to which they aré not parties; or to enable the father to convert his own misconduct into a shield against parental liability. The divorce may deprive him of the custody and services of liis children, and of the rights of guardianship against his will; but if by the judgment of the court, and upon competent and sufficient evidence he is found to be an unfit person to exercise parental control, while the mother is in all respects the proper person to be clothed with such authority, he cannot justly complain.

The alimony allowed by the court below is not to be construed into an allowance for the support, also, of the child. Alimony, in its proper signification, is not maintenance to the children, but to the wife; and the fact that there has been a judgment of divorce, with alimony and custody of minor children to the wife, will not of itself- operate as a bar to a subsequent claim against the husband for the childrens’ maintenance.

We think it is a sound principle that, if a man abandons his wife and infant children, or forces them from home by severe usage, he becomes liable to the public for their necessaries. The doctrine is stated in. Weeks v. Merrow, 40 Me. 151, that, if a minor is forced out into the world by the cruelty or improper conduct of the parent, and is in want of necessaries, such necessaries may be supplied, and the value thereof collected of the parent, on an implied contract. See also, the language of Metcalf, J., in Dennis v. Clark, 2 Cush. 352; 2 Kent’s Com. 193; Stanton v. Willson, 3 Day, 37; Lord Eldon, in Rawlyns v. Vandyke, 3 Esp. 252; Fitler v. Fitler, 33 Pa. St. 50. There is evidently no satisfactory reason for changing the rule of liability, when, through ill-treatment, or other breach of marital obligation, the husband renders it necessary for a court of justice to divorce the wife, and commit to her the custody, of her minor children. If, under such circumstances, upon the allowance of alimony with custody of children, the court omits to make an order for the children’s maintenance, the father’s natural obligation to support them is of none the less force.

It has been held in England that, where a wife is living sepárate from her husband on account of his misconduct, and the custody of their infant child is given to her against the husband’s will, by the master of the rolls, under the statute, the wife will be clothed with power to pledge the husband’s credit, for the reasonable expenses of providing for the child. Bazeley v. Forder, 3 Q. B. L. R. 559, was an action for goods sold and delivered. The plaintiff, on the order of the defendant’s wife, had supplied clothes for the defendant’s child. The wife was living separate from him, for reasons which justified her doing so, and the child, which was under seven years of age, was living with her, against the defendant’s will, having been transferred by judicial order, under the statute, from the father’s custody to that of the mother. Blackburn, J., said, I think, on principle, that as soon as the law became such that a wife separated from her husband might properly and legally have the custody of her infant children under the age of seven years, though the husband objected, it became a reasonable and necessary thing that she should clothe and feed those children according to their degree. It is true that in one sense, this is an expense voluntarily incurred by the wife as she is not obliged to ask for, or take the custody of her child; but I think the wife’s authority in such cases is to pledge the husband’s credit for her reasonable expenses, though they exceed what she is obliged to incur.”

It is urged that the father is released from obligation to maintain his infant children, when deprived of their society and services against his will. But if voluntary misconduct on his own part leads to the deprivation, he is himself responsible, and not the court which intervenes for the protection °of his children. And if the father, as against- a stranger, cannot escape liability for necessaries furnished to his minor children, though remaining with their mother after the divorce, the mother will not be barred of an action against her former husband, for the expense of maintaining the children. After a dissolution of the marriage relation by divorce, the parties are henceforth single persons, to all intents and purposes. All marital duties and obligations to each other are at an end, and' they become as strangers to each other. Upon the establishment of such new relations, a promise may be implied, on the part of the father, to pay the mother, as well as a third person, who has supplied the necessary wants of his infant child.

The Statute, 43 Eliz., Ch. 2, directs that “ the father and mother, grand-father and grand-mother, of poor, impotent persons, shall maintain them, if of sufficient ability, as the quarter-sessions shall direct.” Its provisions have been re-enacted in several of our states; and. in view of the special enactment it has been held that, where the husband and wife are divorced, and upon her application the custody and control of their minor children are awarded to her, she cannot, in an action against the father, recover for the entire support of such children furnished by her after the divorce, but only for contribution. But there is no such statute in this state, and in general, after a divorce as well as during coverture, the primary duty of maintaining any minor child of the marriage still remains with the former husband.'

An early case in support of the conclusions to which we have arrived, is Stanton v. Willson, supra, a decision says Ellsworth, J., in Finch v. Finch, 22 Conn., 421, well considered by a court of distinguished and unsurpassed ability, and which, so far as my knowledge extends has ever been satisfactory to the judges and the profession, and sustained by principles as old as the common law itself.” The action was book-debt by the plaintiff, the former wife of John Bird, against Willson, executor, for education and support, furnished by her, before her inter-marriage with Stanton, to the children of Bird. The court say, “ By the divorce, the relation of husband and wife was destroyed; but not the relation between Bird and his children. His duty and liability, as to them, remained the same, except so far forth as he was incapacitated, or discharged, by the terms of the decree. This decree takes from him the guardianship of two of his children, This transfer of the guardianship to the plaintiff vested her with powers similar to those of guardians, in other cases; and the appointment of the plaintiff to this trust did not subject her to the maintenance of the children, her wards, any more than a stranger would have been subjected by a like appointment. By accepting the trust, she became bound to provide for, protect and educate them, at the expense of Bird, unless the decree of the general assembly has made other adequate provision, which by the terms of that decree, she is bound to apply. This is'not the case here. The sum allowed was directed to be paid to her as her part and portion of Bird’s estate, and in lieu of all claims of dower.”

Other well considered cases have enforced the same doctrine. In Plaster v. Plaster, 47 Ill., 290, there was a decree dissolving the marriage relation, and giving the custody of the minor child to the mother, because of the unfitness of the father, and allowing a sum in gross as her alimony. A supplemental petition was afterwards filed by the mother, claiming pay for the support and education of the child, for the time intervening between the decree granting the divorce and the filing of the petition. The petition was dismissed, and on error it was insisted that the court should have retained the petition and granted the relief sought. The supreme court, in reversing the decree of the court below, declared itself unable to appreciate the force of the objection that because by the decree of divorce the custody of the child was given to the mother, the defendant was absolved from his further support and nurture. As if was the father’s neglect of duty that produced the divorce, and warranted the decree giving the custody of the child to the mother, the court rightly observed that, his being adjudged an improper person to have the custody, care and education of his child, could not release him from both his natural and legal duty. The money decreed to the mother having been declared to be for her use, and there being no implication that any portion was intended as an equivalent for the support of the child, it was held that the defendant in error was liable for necessary and proper expenditures for the child’s support, but only for such support as the child was unable himself to procure; and that after he became able to earn a support, in whole or in part^ the/father was not bound to maintain him in idleness, but only to pay for such portion as the child could not earn by reasonable effort. See also Conn v. Conn, 57 Ind. 323; Courtright v. Courtright, 40 Mich. 633; Buckminster v. Buckminster, 38 Vt. 252; Holt v. Holt, 42 Ark. 495.

It is contended that the defendant in error should have sought her remedy in the original divorce suit, by a modification of the decree. It is doubtless recognized as the general doctrine that the court may, upon application made in the same cause, modify its decree as to alimony, from time to time, on any change in the condition of the parties, as justice may require. And such modification may be obtained by an original petition upon proper allegations. Olney v. Watts, 43 Ohio St. 499. But, as we have already seen, the expense of maintaining her minor child, was not included in the judgment allowing alimony to the defendant in error.

Owing, it may be, to the father’s insolvency, the enforcement of his obligation to provide necessaries for his child, was left to the future, as his indebtedness might be incurred by the furnishing of such necessaries by others, or as his pecuniary condition might improve. But, while in the decree no order was made for the child’s maintenance, the father could not avoid liability for his reasonable support, because an action against him for necessaries had been commenced in another tribunal, or because of his removal into another county. The natural obligation resting upon him in the forum of divorce would not become lifeless because its enforcement was not sought in the jurisdiction in which the divorce was granted. Although the record shows that the original action in divorce was in the court of common pleas of Darke county, while the petition subsequently filed to charge the husband with the support of the child, was filed in the court of common-pleas of Montgomery county, it was not sought in the latter court to change or modify, in any manner, the decree in the divorce cause, but only to enforce a claim growing out of a natural obligation of the father, which was antecedent to the decree, and which the decree left unimpaired.

The circuit court, we think, did not err in affirming the judgment of the court of common pleas, and the judgment of the circuit court is, therefore, affirmed.

Judgment accordingly.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    Cope v. Cope.
    Wills— When void for uncertainty.

    Where the provisions of a will in each and all of its items are, when considered as an entirety, so obscure that, with the aid of all the light that can be shed on it by the extraneous circumstances, no definite idea can be formed of the intention of the testator in any of the dispositions he has attempted to make, it should be held void for uncertainty, and the property left to descend and be distributed according to law.
    (Decided December 13, 1887.)
    Error to the District Court of Belmont County.
    Morris Cope, as executor of Joshua Cope, deceased, commenced an action in the court of common pleas to obtain a construction of the will of his testator, making the necessary parties. The case was appealed to the district court, which made and entered in the record of its judgment a finding of facts. From this finding it appears that the will was made March 25, 1875, and that, after the death of the testator, it was probated December 13, 1878. That at the date of the will the testator had the following children and grandchildren of deceased children living, to-wit: Two sons, Jesse Cope and George Cope (the latter of whom died before the testator, leaving children, parties to the °suit), and four grandchildren, Frank M. Cope, a son and only child of testator’s deceased son, Caleb, and Mary R. Weeks, Jesse C. Weeks and James M. Weeks, the only children and heirs of a deceased daughter, Sarah J. Weeks, whose husband was also dead; and that $900 wras the full value of the land that had been devised to George by the third item of the will. The will reads as follows:
    “ 1st. I direct that all'my just debts and funeral expenses be paid. Among these debts is $175 due Jesse Cope as his portion of his brother Oliver’s estate.
    “2nd. I direetthat all my personal property,.of whatever sort, shall be sold at public sale, and the proceeds collected together with all the notes and other amounts due me.

      “ 3rd. I give and bequeath to my son George Cope all my real estate, adjoining lands of James Wiley, Israel Steer, Reece Berry, and others, with all the buildings thereon, consisting of two dwelling houses, mill, etc., containing about 12 acres, for which he is to pay $900 — to be charged to him as so much cash in the settlement of the estate.
    “ 4th. My estate being principally in bonds on the city of Bellaire and the United States, and my heirs, after consultation, can divide these bonds among themselves, or submit them to sale.
    “ 5th. I give and bequeath to my grandson, son of Caleb Cope, deceased, supposed to be .somewhere in the west, but place not known, $300, to be kept for his use three years, and if not called for in that time, it then to be divided among my other heirs.
    “ 6th. I give and bequeath to my three grandchildren, Mary, James and Jessie, children of John'and Sarah Jane Weeks, both of whom are deceased, a sum equal to one-third of my estate at its final settlement, to be equally divided among them.”
    The district court construed the will to give the farm to the children of George on the payment of $900, as provided should be done by their ancestor in the third item, a legacy of $300 to Frank M. Cope, son of Claeb Cope, deceased; and held that the remainder was given, one-third to Jesse Cope, the surviving son, one-third to the children of George Cope, deceased; and the other third to the children of Sarah J. Weeks, deceased.
    Frank M. Cope excepted to the judgment of the court, and now prosecutes this proceeding to reverse the same, claiming that under the will he is entitled to a legacy of $300 ; and, also, to take as an heir in the distribution of the bonds provided for in the fourth item, and as a distributee in any residue of the estate.

      T. W. Emerson and IF. K. Kennon, for plaintiff in error.
    The clause in item fourth, “my heirs, after consultation, can divide these bonds among themseves, or submit them to sale,’’ is the residuary clause of the will, though not in the usual place. If the intention of the testator is to govern, and that intention be ascertained-from, the words used, Frank M. Cope is one of those among whom the bonds are to be divided. Why exclude him?

      Heirs is a technical word, and must be taken in a legal, technical sense, unless it appear that the word was used in some secondary sense. The testator has not used any word or sentence that even tends to show that the meaning of the word should be changed; and certainly has said nothing, showing manifestly, clearly or positively that the word should not have its natural and legal signification.
    But the use of the words “other heirs” shows clearly that the testator considered the grandson one heir; then he is not only an heir by operation of the statute, but here the intention of the testator to consider him an heir by operation of his will is manifest. He calls him another one of a class, and that class is heirs. If no specific bequest had been made to Frank M. Cope, or to the Weeks children, the will would have stood unquestioned. The specific bequest cannot control the general one. To exclude any person included in the term “ my heirs,” words, indicating positively the intention to exclude such person must be used. True, inferences might be drawn from the way in which the testator speaks of this heir, that he did not care enough about him to favor him beyond the others; and that if he were away, he could not consult about the bonds, but these are mere inferences; the will says nothing of the sort.The spirit of distance and indifference runs through the whole instrument. Some of the others are not mentioned as legatees by name.
    Item Sixth — The bequest to the Weeks children is unnecessary if the testator intended to exclude Frank M. Cope’s participation in the final distribution, and important if he intended to include him as one of the residuary legatees.
    The will leaves the estate, after the payments of bequests, to the law to designate heirship.
    The reasons, gathered from the words of the will, are stronger in favor of Frank M. Cope as one among whom the bonds are to bo divided, than can be urged in behalf of any other class of the participants in the distribution.

      George Duncan, for defendant in error.
    While it is true that the word “ heirs ” is a legal, technical word, still the rule as to the meaning of the word in the construction of wills and the one followed by this court is, not what is meant by the word in its strict proprietary meaning, but what did the testator mean by it? King v. Beck, 15 Ohio, 559; Collier v. Collier, 3 Ohio St. 375; 2 Jarman on Wills, 204. As is said by the court in the case of Worman v. Teagarden, 2 Ohio St. 380, “ a fair construction of a will only is given when the intention of the testator is ascertained from what he has said, read in view of his situation and the circumstances with reference to the subjects of his disposition and objects of his bounty.” Construed in this light and by this rule, did the testator intend that the plaintiff in error should share in the division of bonds mentioned in item four of the will ?
    A fair construction of the will shows that the testator intended to divide his estate equally between George Cope, Jesse Cope and the children of Sarah J. Weeks, except the $300 to Frank M. — giving to George one-third, Jesse one-third, and the Weeks children together one-third.
   Minshall, J.

After a careful examination of this instrument we are satisfied that it can not take effect as a will, by reason of the indefinite and uncertain character of its provisions : Thus as to the fourth item, it is uncertain, in the first place, whether it disposes of anything. It is not dispositive in terms; it simply directs a mode of dividing what is assumed to have been disposed of — a disposition not, however, found in the will. If there weré dispositive words, the subject of the bequest might, by a rule of construction, be held to have been bequeathed equally to all of the class — children and grandchildren alike. But this is contrary to natural affection and could hardly have been intended. Indeed it is probable, from other portions of the writing, that by the use of the words my heirs,” he meant his own children then living, that is, his two sons Jesse and George, or else that he meant, these two, and the children of his deceased daughter, Sarah Jane Weeks, included. He hardly intended to include the son of his deceased son Caleb, as that would make him the favorite object of his bounty, contrary to what seems, from the whole instrument and the manner in which he is provided for in the fifth item, to have been the fact. But such is the technical effect of the language employed, and if this item be regarded as dispositive, then this grandson would take under it equally with the sons of the testator, and also the provision made for him in the fifth item.

Again it is uncertain what the testator meant by “the final settlement ” of his. estate as used in the sixth item. One-third of this he gives to the children of his deceased daughter Sarah Jane Weeks. By the statute it would mean all of the testator’s estate after the payment of debts (§ 6090); for the amount $900, that George is required to pay for the'farm (found also to bo its full value), is to be brought into this final settlement. So that if this construction were adopted, these children would take one-third of his entire estate after the payment of debts; and his two sons (or Jesse and the heirs of George), would, after the payment of the legacy of $300 to Caleb’s son, take each two-ninths, and the latter would take a like part with the legacy added. But this is not reasonable. Or, he may have intended, what would remain of his estate, after paying debts, the legacy to Caleb’s son, and the making of the division of the .bonds as provided in the fourth item. But this construction would be involved in all the obscurity that grows out' of the indefinite and uncertain character of the language employed in that item.

As to the third item, it seems certain that he intended George to have the farm on paying $900 for it; but it is not certain that he intended this disposition to take effect, whether the other dispositions, be intended to make, took effect or not. Indeed, in the light of the fact that the amount required to be paid is the full value of the farm, it is most likely he did not.

The extraneous circumstances incorporated in the finding of the court, throw but little, if any light, upon the obscurities of this will; and it is doubtful whether these could be relieved by any conceivable state of circumstances. Thus, when it is observed that the legacy given to the son of his deceased son Caleb, is to be divided among his other heirs, if not called for in three years, we perceive that the fact of the absence o'f this son was present in the mind of the testator; and this furnishes a somewhat forcible reason for saying that the testator did not intend that he should participate in the division of the bonds; for there is no room for saying that he intended that the division should be delayed until this grandson, “supposed to be somewhere in the west, but place not known,” should return. Then again, the devise of a third of his estate, on final settlement, to the children of his deceased daughter, supplies a strong inference, that he intended to divide the whole of his estate, after the payment of debts and the legacy to Frank, among his two sons then living, and the children of his deceased daughter, giving to the latter as a class, and to his two sons, each a third, particularly as the amount George is required to pay for the farm is its full value, and is to be brought into the fund for final distribution. These considerations are plausible, but if the fourth item were otherwise capable of an intelligible construction, they would hardly be sufficient to warrant a court in excluding one from a class to which, in its technical signification, he belongs.

• Without pursuing the matter, further, we think sufficient has been said to indicate the obscurity in which each item of this will, when considered in connection with its other parts, is involved, and that no construction can be given it, as a whole, for which more can be claimed than that it is a clever guess at the probable intention of the testator. But this is not enough to warrant any particular construction claimed for a will; for, as observed by Mr. Jarman, conjecture is not permitted to supply what the testator has failed to indicate; and if, after every endeavor, the judicial expositor “ finds himself unable, in regard to any particular fact, to penetrate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable consequence.” 1 Jarm. Wills, 356*. And further on, the same author observes, that, “ To the validity of every disposition, as well of personal as of real estate, it is requisite that there be a definite subject and object; and uncertainty on either of these particulars is fatal.” Now, in this will, there is first uncertainty, in the fourth item, as to the objects — the persons intended to take, and also, whether it was intended to dispose of anything; and, in the sixth item, there is uncertainty as to the subject-matter devised — as to what shall constitute the fund, of which the children there named were to take a third on the final settlement ” of his estate; and these uncertainties, combined with the apparent, but unexpressed purpose, to exclude the son of his deceased son Caleb from taking any part of his estate, other than th.e conditional legacy given him in the fifth item, involve the entire scheme of the instrument in doubt and uncertainty. And, though the privilege of making á will is one highly respected by the law, yet, as the law itself makes a just and equitable disposition of the property of an intestate among the natural objects of his bounty, it should prevail over the provisions of any attempted disposition, that are so obscure that the general scheme and purpose of the testator cannot be ascertained with any reasonable certainty.

Judgment accordingly.


author: Owen, C. J.

text:
    Davis v. Guarnieri.

      Imputed negligence — Sale of poison by druggist — Husband as agent of wife— Damages — Special verdict.

    1. The wife of G. being ill, expressed to her husband a desire for a harmless medicine to the use of which she was accustomed. G. called at the drug store of D. for .the desired medicine; the agent of the latter, without informing himself bj* whom or for what it was intended to be used, carelessly put up, sold and delivered to G." a poisonous drug. G. supposing it to be what he had called for, took it home and gave it to his wife, who drank of it in the belief that it was a harmless medicine, and instantly died from its effects. These facts constitute a cause ot action against D., in favor of the administrator of the deceased wife for negligently causing her death.
    2. The doctrine of imputed negligence does not prevail in Ohio; and the 'contributory negligence of a husband in the purchase of a drug to be used by his wife is not to be imputed to her in an action by her or her administrator against the dealer for injury or death resulting from the use of such drug, unless she constituted him her agent; and in simply making known to her husband 'her desire for the medicine, by reason of which he obtained it, the wife did not constitute him her agent in such sense as that his contributory negligence in making the purchase can be imputed to her.
    3. In an action by the administrator of the deceased wife for the benefit of her surviving husband and children, for wrongfully causing her death, evidence that the husband had again married and that his second wife performed like services and duties and contributed in like manner as the first wife to the support of the family and the accumulation of properly, is not admissible in mitigation of damages.
    4. It is not necessary to allege in the petition in an action for negligently doing an act which resulted in an actionable injury, all the facts which contributed to the primary act complained of, or which tend to establish the negligence of such act.
    5. An averment'in a petition that the defendant by his agent negligently put up and sold a poisonous drug instead of a harmless medicine called for, is sufficient to authorize proof that such drug was not labeled “ poison,” as required by statute.
    6. It is not error for the court in the trial of such an action, and in its instructions to the jury, to call attention to a statute making it unlawful to sell a poisonous drug without labeling it “ poison.” •
    7. An express finding of a jury by a special verdict upon a particular fact in dispute, which shows that the case does not turn upon such fact, renders the instructions of the court upon the same subject immaterial, unless it appears that such finding is prejudicial, and that the charge may have contributed to the particular finding.
    8. In the trial of a civil action where the preponderance of the proof is to determine the issues, the court or jury deals simply with the probabilities in the case; and where the' jury is ashed to find specially whether a particular fact exists, and answers, “ probably not,” this is a finding that, for the purposes of the case, the fact does not exist.
    (Decided December 13, 1887.)
    Error to the Circuit Court of Summit County.
    Nicola Guarnieri, administrator of the estate of Angela Guarnieri, deceased, brought his action against the plaintiff in error, ’William P. Davis, in the court of common pleas of Summit county, wherein, by his second amended petition, he alleged that: “ On the 9th day of January, A. D. 1882, at Akron, Ohio, the said Nicola Guarnieri applied to the defendant, who was then and there engaged in the business, of selling drugs and medicines and filling prescriptions, which application was'then and there made, to defendant through his agent, one Forester J. Forster, and requested defendant, through his agent aforesaid, to put up and sell to him twenty cents worth of the. oil of sweet almonds, to be administered to his wife, Angela Guarnieri, as a physic, and the defendant by his said agent then and there undertook to fill said order and to sell to him, Nicola Guarnieri, said medicine for his wife. And defendant did then and there pretend to fill said order, and to sell to him said twenty cents worth of the oil of sweet almonds, for Angela Guarnieri, as requested; yet defendant by his said agent did so carelessly and negligently put up said medicine, and make said sale, that instead of putting up the oil of sweet almonds, as was called for, he put up and sold to him twenty cents worth of a certain poisonous drug called the oil of bitter almonds, to-wit: about one-half ounce thereof. And the same was wrongfully, negligently, and carelessly sold and delivered to him for-his wife by defendant through his said agent, instead of the medicine called for; and Angela Guarnieri without any fault or neglect on her part, took the oil of bitter almonds, so put up and sold by defendant as aforesaid, in the same manner and quantity that she would have taken the oil of sweet almonds, and at the same time supposing it to be such, and the said Angela Guarnieri afterwards to-wit: on the 9th day of January, A. D. 1882, died from the effects of said oil of bitter almonds, so sold by defendant and so taken by her as aforesaid; and plaintiff says that on the 24th day of January, A. D. 1882, he was duly appointed and qualified as administrator of the estate of Angela Guarnieri, and that the said Angela Guarnieri left Nicola Guarnieri her husband, and Mary, Victoria, Nicola, Angela and George Guarnieri her children, as her next of kin, to the damage of plaintiff five thousand dollars.”
    Davis, by his answer, alleged that: “He admits that on January 9th, 1882, he was engaged in the business of selling drugs and medicines and of filling prescriptions.
    “As to whether plaintiff is, and was, at the time of the commencement of this action, the administrator of Angela Guarnieri, the defendant has no knowledge. He denies the same and demands strict proof thereof. He admits that on or about January 9th, 1882, Angela Guarnieri died, but as to the cause of her death, the defendant in the absence of knowledge, demands strict proof. He avers that if said Angola Guarnieri died from the effects of taking oil of bitter almonds, then her death Avas caused by her oavu negligence, and that of her husband. Aiid he further avers that if such be the fact, such drug Avas administered by her husband, Nicola Guarnieri, upon his OAvn responsibility and Avithout any knowledge upon defendant’s part, that it Avas bought for, or to be administered to her, and he says that whatever drug Avas purchased by Nicola Guarnieri at defendant’s store Avas just what he selected, and said he wanted, and purchased upon his own judgment; and if any careless use Avas made of it after it was purchased, the Avhole fault in purchasing and using it Avas Avitk said Nicola and Angela Guarnieri.
    a He denies every allegation, averment and statement contained in said amended petition except such as are above expressly admitted to be true.”
    By his reply the plaintiff denied every allegation of the answer except its admissions.
    The issues Avere tried to a jury which returned a general Amrdict of $1,000 for the plaintiff, and also a special verdict in the form of ansAvers to interrogatories submitted by both parties. Upon the following facts there was no substantial conflict in the evidence: That Forster was the agent and salesman of the defendant; that the oil of SAveet almonds is a bland and harmless drug; that the oil of bitter almonds is a deadly poison ; that Guarnieri was an Italian who but imperfectly spoke and understood the English language; that his purpose in going to the drug store Avas to purchase some oil of SAveet almonds to be taken by his wife as a physic; that she had just become a mother and had been accustomed, both in' Italy and in this country, to take the same medicine for the same purpose on all such occasions, which had been quite numerous ; and that she expressed to her husband a desire to haATe some of it procured for her without any other direction as to its purchase; that the bottle Avhich contained the bitter oil was not labeled “ poison,” nor otherwise, so as to indicate its dangerous qualities; that the bottle in which the bitter oil was delivered to Guarnieri was labeled simply' “ oil of almonds ; ” that the wife, who was still confined to her bed, drank from this bottle in the belief that it was the bland oil, and that almost immediately she died from its effects, leaving her husband and the children named in the petition.
    Upon the remaining issues in the case there was conflict in the evidence, its tendency on the one hand being to sustain the plaintiff’s case, and on the other hand to sustain the defense. There was no evidence tending to prove that the plaintiff informed Forster for whom he was purchasing the drug, but it did tend to prove that he informed him it was to be used as physic. Upon this fact, however, there was sharp conflict in the proof.
    The evidence conflicted concerning the similarity or dissimilarity of the respective odor of the bland and bitter oil, but upon this issue the jurors were each permitted to smell of a» sample of each.
    The verdict of the jury is in the following words :
    “We, the jury, impaneled and sworn to try this action, do find the issues with the said plaintiff, and do assess his damage at $1,000.
    J. W. Hudson, Foreman.
    “ And in response to the several questions propounded to them by the plaintiff, and at his request, flow return the same •with their special findings thereon- as follows, to-wit:
    “ 1. Did Guarnieri know at the time he purchased the poison that the same was a poison ? No.

      “ 2. Did Forster know at the time he sold the drug that the .same vras a deadly poison ? We are of the opinion from the evidence that he did not know.
    J. W. Hudson, Foreman.
    “ And in response to the several questions propounded to them by the said defendant, and at his request, now return them with their special findings thereon as follows, to-wit:

      “1. If Guarniéri purchased the drug of Forster, then was he, Guarnieri, acting for himself or as the agent of his wife ? For himself.
    “ 2. Did Guarnieri make known to Forster when he got the drug what he wanted it for, and that it was to be taken as a medicine? Not intelligently.
    “ 3. Did Guarnieri make .known to Forster, when he got the drug, to whom he intended to administer it? Not intelligently.
    “ 4. Was the large bottle, containing the oil of bitter almonds, banded to Guarnieri by Forster? Yes.
    “ 5. If so, did Guarnieri look at it and smell of it ? Yes.”
    1. During the trial, physicians were permitted to testify, against the objection of the defendant, that the words, “ oil of almonds,” upon the label which Forster placed upon the bottle he delivered to the plaintiff, indicated, in their opinion, the bland oil — oil of sweet almonds.
    2. The defendant offered to prove by cross-examination of the plaintiff, that in the month of October, following the death of the intestate, the husband married another wife; that that wife was a strong- healthy woman, took her into his family, and she performed all the ordinary and proper services' of a wife, in taking care of the household for her husband; that she was faithful in every respect in taking care of the children of his deceased wife, in every respect as a proper and suitable mother would take care of her children. That she aided him in carrying on his business to the same extent and fully supplied the place of his deceased wife, and that he has ever since lived with her, and is still living with her. This was ruled out and excluded by the court, to which ruling exception was taken by the defendant. The fact was shown, however, that the plaintiff had remarried, and that his second wife assisted him in his business.
    3. Upon this same subject the defendant requested the court to give the following instructions to the jury:
    “In estimating and assessing damages, it is competent for you to consider the fact that Nicola Guarnieri married again in tlie month of October, 1882 ; that his wife was able, willing, and did in fact render service to her husband and to the children of the deceased, and if such services reduced the pecuniary loss of both husband and children, such fact should be considered by you and given such weight as you think proper.”
    Which request-the court refused; to which refusal the defendant excepted.
    4. During the closing argument, counsel for the plaintiff stated that he desired to read from a book known as “Malpractice and Medical Evidence,” by Elwell, some excellent suggestions on this subject, made by the American Pharmaceutical Association, at ^heir annual meeting held in Philadelphia, in September, 1857, in an appeal brought forward by the committee on poisons, and adopted by the association. To the reading of which to the jury, the defendant by his counsel objected and asked the court not to permit counsel for plaintiff to read from said work to the jury. When counsel for plaintiff stated : “ This is not evidence that you will get from the witness stand. It is not law that you will get from the court.” Thereupon the court overruled said objection, and permitted the counsel for plaintiff to read in illustration of his argument from the book a strong and vigorous recommendation by the association that the pharmaceutist should adopt rules in dispensing of poisons by which he may remove from himself the responsibility of selling poisons for disreputable-purposes, and protect the public from both the mistakes occurring in his own premises, and from the use of poisons for unlawful and criminal purposes, and recommending among other things, marking or labeling every package containing a poisonous drug, so as to avoid mistakes in putting up or selling a poison for an innocent drug.
    To the ruling of the court in permitting this extract to be read, and to the reading of it, defendant excepted.
    5. During the charge to the jury, the trial judge said :
    “One of the things to which your attention has been called, and to which I now call your attention, is the statute of the state of Ohio, which has been read; and if you will hand it to me, I will call your attention to the particular things which I desire to.”
    He then read to the jury section 6957 of the Revised Statutes, which denounces against the sale of a poisonous drug without marking the word “poison” upon the label or wrapper containing the same, a fine of not more than $200, nor less than $50. He then added:
    “Now, if in the putting up of this drug (and I say to you that a part of the putting up is the matter of labeling it), if in the putting up of this drug this statute was violated, then there was , negligence on the part of Forster which would make the defendant, if you find that Forster was his agent, liable for the .injury resulting from that, unless by reason of the negligence of others as I will hereafter explain.”
    To all which the defendant excepted.
    6. After instructing the jury upon the relation of the defendant to his agent, Forster, the court charged the jury: “ The next question for you to determine will be whether Mrs. Guarnieri, by herself or by her agent, contributed by her negligence to bring about the result, for if she contributed by her negligence to bring it about, then the defendant is not liable, but it is urged that she is bound by the act of her husband as her agent. Now if he was her agent, under the rules I will give you, then she is bound and such an act would be an act to prevent recovery in this case. But I say to you that a purchase for his wife made in the discharge of his duty as a husband does not constitute him the agent of his wife; that in order to make Guarnieri the agent of his wife, he must by her procurement and direction, and under her authority and control have gone and made this purchase, and that if he simply went in the discharge of his duty as a husband, he was not her agent in such a way that any carelessness of his could be attributed to her. If he was under her direction and control in such a way ás to make him her agent then, of course, his carelessness is her carelessness, and if he contributed by his negligence, then the plaintiff cannot recover here, for the plaintiff can recover .here because the woman could have recovered if she had lived.”

      And subsequently- said to the jury on the same subject: “ The obtaining by the husband of food or medicine for his wife with her knowledge and approval, does not of itself constitute such husband the agent of the wife in such sense as to charge her with his negligence. In order to make him the agent of the wife in this transaction she-must have selected the medicine, directed that he should purchase it and he must have had nothing to do in the matter except by her procurement and direction. What he did in this matter simply in the discharge of his duty as a husband, was not done as the agent of his wife, and his negligence in his duties as a husband are not chargable to his wife. ”
    To so much of the above as relates to the subject of agency, and the relation of the husband to his wife in the purchase by him of the drug, the defendant excepted.
    7. The court instructed the jury that: “ the doctrine of imputed negligence does not prevail in the state of Ohio; and if you find that Angela Guarnieri died through the wrongful act, neglect or default of the defendant by himself or his agent, then the plaintiff is not deprived of the right of action in this case by reason of contributory negligence on the part of her husband or any one else, unless such person was acting as her agent at the time.”
    To which the defendant excepted.
    8. The defendant requested the court to charge the jury that: “ If Forster, as the agent of Davis, was guilty of neglF gence in not properly putting up and labelling the drug, still if that negligence did not directly cause the death of Mrs. Guarnieri, that is, if you find that had the medicine been properly put up and labelled, she would have taken it precisely as she did take it, and died by reason thereof, then such negligence did not produce the death, and plaintiff cannot recover, and you should find for defendant.”
    Which request the court refused, to which the defendant excepted. • ' '
    9. The court further instructed the jury on the measure of damages: “ In this case the plaintiff’s damages, if any, should be a fair and just compensation for the pecuniary injury re-suiting to the husband and children from the death of Angela Guarnieri. In no case can the jury, in estimating the damages, consider the bereavement, mental anguish or pain suffered by the living for the dead. The damage is exclusively for a pecuniary loss, not a solace. The reasonable expectation of what the husband and children might have received from the deceased, had she lived, is a proper subject for the consideration of the jury if they find for the plaintiff. What the husband and children might reasonably expect to receive by reason of the services of this woman in a pecuniary point of view, is to be taken into account in determinating the amount of damages, if you find for the plaintiff. It should be said that it is the present worth as a gross sum in money, for the loss of the services of this woman, that you are to find, if you find a loss. It is that same which put in money is a compensation for what you find this woman would reasonably have saved for her family. Of course, in determining this, these things are all to be considered; that is, the age, health, probability of'length of life, or death, if she had not died from taking this drug.” To which instruction by the court the defendant then and there excepted.
    Motion for new trial was overruled by the trial court; judgment was entered upon the verdict, which judgment was affirmed on error by the circuit court.
    With other questions in the record which arc not reported upon, the foregoing are relied upon by the plaintiff in error as ground of reversal of the judgment of the circuit court affirming that of the court of common pleas.

      N. D. Tibbals, for plaintiff in error.

      Fraze & Welch and J. J. Sail, for defendant in error.
   Owen, C. J.

Wo shall consider the questions assigned for error substantially in the order in which they are presented in the foregoing statement.

I. Did the trial court err in admitting in evidence the opinions of physicians as to what was implied to • one acquainted with drugs by the inscription written on the label of the bottle delivered to the plaintiff: “ Oil of almonds ?”

Assuming for the present that the failure of the defendant and of his agent to label the bottle “ poison was properly-submitted to the jury upon the issue of negligence, we conclude that there was no error in allowing persons accustomed to handling drugs to testify that the words oil of almonds ” indicated the innocent oil. It was practically equivalent to saying that it did not indicate poison, and to that extent reflected upon the question of negligence.

II. — III. Did the court err in excluding the evidence offered, and in refusing the instruction requested, concerning the second marriage of the plaintiff as an element affecting the question of damages ?

The counsel for plaintiff in error maintains that this action of the court was error, and upon the following reasoning: If it be true that it was proper for the jury to take into account the probable length of life of the deceased wife, and the services she would probably render, was it not also proper to consider that another woman occupied the same relation towards the husband' and children, rendered the same services, aided in the accumulation of property, and became to them precisely what the deceased woman would have been had she lived; was it of any consequence to the husband, whether one woman or another, rendered the same services in the candy business, and aided him in his financial accumulations ¶ Can it be that he could recover for years of loss of these services by reason of the death of Angela, when during these same years the same pecuniary services were being rendered to him by the other woman f Suppose the first woman had been an unsuitable person to rear his children, negligent in the discharge of her duties to him, and to them, which as a wife and mother she should have done, had failed to aid him in his financial accumulations, upon her death another woman came into the same relations with him and liis children, but rendered valuable services to both, shall it be said that this loss can not be mitigated by proof of such a state of facts? Should not the jury have been put in possession of all the facts surrounding this husband and these children during the years that followed the death of the wife and mother, so that they could have better determined what the real pecuniary loss to both was ? ”

While this reasoning is not without plausibility, it is wholly unsupported by adjudication, so far as we have been able, with the aid of counsel for plaintiff in error, to prosecute our researches.

This remedy is created by statute (sections 6134 and 6135 of the Revised Statutes), which provides that the action shall be for the benefit of the wife or husband, and parents and children * ' * * and shall be brought by and in the name of the personal representative of the deceased person; and in every such action the jury may give such damages (not exceeding $10,000) as they may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit such action shall be brought.

In construing this statute this court has held that in such action, the amount of damage, within the limits of the law, is to be ascertained by the jury, from the proofs in the case, and should be a fair and just compensation with reference to the pecuniary injury resulting to the beneficiary from such death; and in determining this the reasonable expectation of what the next of kin might have received from the deceased, had he lived, is a proper subject for the consideration of the jury. Steel v. Kurtz, 28 Ohio St. 191.

This is not only a sound exposition of the statute, but aids us in solving the question under consideration.

The husband and children of the intestate lost, by the wrongful act of the defendant below, all that they might, by reasonable expectation, have received in pecuniary benefit, from the deceased wife and mother, and they lost that forever, and beyond all hope of recovery.

ITow are they to be compensated for this loss? Shall this loss be the measure of recovery, or shall the defendant, through whose negligent act the loss was sustained, be per7 mitted to show that a substitute, in some degree, at least, has been found for that pecuniary benefit which was lost by the death, and to off-set this substitute against the demand which the statute has plainly authorized ? It will be observed that this claim is in the nature neither of set-off nor counter-claim; nor is it connected with the subject of the action,” as contemplated by section 5072 of the Revised Statutes.

Upon the plaintiff's appointment as administrator, the right of action at once vested in him, and there can be no doubt that if the trial had occurred at any time prior to his second marriage the full measure of recovery contemplated by the statute should have been accorded him.

Did the measure of that recovery become impaired or narrowed by a marriage which occurred subsequent to the commencement of the action ?

Althorf v. Wolfe, 22 N. Y. 355, was an action, brought under a statute similar to our own, for wrongfully causing the death of an intestate. The defendant offered to prove in mitigation of damages, that the life of the deceased was insured and that the insurance money was paid to his wife upon his death. It was held that the evidence was not admissible. It could be contended with some plausibility that the loss was mitigated by the rece;pt of this money by the widow. Let it be supposed that in the case at bar insurance money due upon the death of the wife had been paid to the husband, and from this sum he had procured the services of a woman to perform like pecuniary services, and contribute by her labor (far beyond the wages paid her) to the accumulation of property in the same manner as the deceased wife. Could it not be said with the same plausibility as it is now maintained, that these facts tended to mitigate the damages sought to be recovered by reason of the loss of that pecuniary benefit which was derived by her husband and children from her services?

It should be kept in mind that the statutes as construed by the courts have thoroughly divested this subject of every element of sentiment, and of every theory of solace for bereavement, as was well illustrated by the charge of the trial court. The only loss to be repaired is pecuniary loss, and the only theory of redress is that supplied by the statute which does not seem to admit of any theory of set off, or compensation with which the wrongdoer is in no manner connected. It has been said that: “ The fact of insurance does not diminish the amount of pecuniary damage suffered by the defendant’s fault, though it provides a method of compensation for it. Besides, the party effecting the insurance paid the full value of it; and there is no equity in the claim of the negligent person to the benefit of a contract for which he never gave any consideration.” Shear. & Red. on Neg. § 609.

This general view is supported by Baltimore & Ohio Ry. Co. v. Wightman, 29 Gratt. 431; Harding v. Town of Townshend, 43 Vt. 536; Pitts., Cin. & St. L. R. Co. v. Thompson, 56 Ill. 138.

It is due to counsel for plaintiff in error to say that he does not maintain that the fact of re-marriage and the services of the second wife of the plaintiff should have been submitted to the jury in mitigation of damages for the reason that the husband and children were thereby provided with another wife and mother, but he restricts his claim to the pecuniary services and value to them of the second wife, who, in such degree as the jury, if permitted, might find, performed like services ahd contributed in like manner to the pecuniary benefit of the family as the deceased wife and mother. If the jury were permitted to consider this element of mitigation of damages, the plaintiff ought to be permitted to show, as a sort of counter set-off to it, the expenses incurred by the husband on account of the marriage, and whether the nuptials were cheap and simple or expensive and luxurious; for certainly to the extent of such outlay the means of supporting the family were reduced.

These considerations, and the comparison which such a rule would invite between the respective earning capacity of the first wife and mother on the one hand and the second wife and step-mother on the other, would tend to complicate the issues beyond anything contemplated by the statutes under whose plain provisions the relief is sought.

IV. Did the court err in permitting the plaintiff’s counsel to read the extract from Elwell’s book ?

It related to the fact that the drug which was sold to the plaintiff, and which caused the death complained of, was not labeled as poison.”

If it would have been within the province of legitimate argument to comment at all upon the fact that the poison was not so labeled or marked as to indicate its dangerous character, it was not an abuse of discretion to permit the extract to be read. Legg v. Drake, 1 Ohio St. 277; Insurance Co. v. Cheeve, 36 Ohio St. 209. It related to the general question of negligence, and served to illustrate the argument of counsel, for which purpose alone it was permitted.

It is maintained by counsel, however, that the fact at which the reading of the extract was aimed was not in issue and not a proper subject of either proof or comment. We shall consider this feature of the case in the next subdivision of this opinion.

Y. It is maintained by the plaintiff in error, that the trial court erred in reading and commenting to the jury upon section 6957 of the Revised Statutes, which makes it a criminal offense to sell a poisonous drug without labeling the package containing it, poison.” Upon this question the counsel for the plaintiff in error says in argument:

“ I insist that under the petition this whole subject-matter is foreign to the issues. There is no negligence of this character charged in the petition. The issue was whether Guarnieri called for the sweet oil of almonds and was carelessly sold the bitter oil of almonds — that is the entire charge of negligence embraced in the petition. Hence it is of no consequence whether the bottle containing the drug was properly labeled and registered or not. The whole effect of thus instructing the jury was to mislead them — to divert them from the real issue, and direct them to other issues not in the case.”

It is true that this fact is not stated in the petition. It is also true that the substantive wrongful act of which the plaintiff complained, was not the omission properly to label a poisonous drug as the statute requires. The wrongful act complained of — the act which led to the injury — was carelessly selling and delivering to the plaintiff a deadly poison instead of the harmless medicine he called for.

The contention of counsel presupposes that no act of negligence can be proved except it be alleged in the petition. This position is untenable. The allegation in a pleading that the party complained against negligently committed the particular act which led to the injury whose redress is sought, furnishes the predicate for the proof of all such incidental facts and circumstances both of omission and commission as fairly tend to establish the negligence of the primary fact complained of.

This rule of pleading is abundantly established by authority. Ware v. Gay, 11 Pick. 106; McCauley v. Davidson, 10 Minn. 418; Clark v. Chicago, B. & Q. R. Co., 15 Fed. Rep. 588; Grinde v. M. St. P. R. Co., 42 Iowa, 376; Indianapolis, P. & C. R. Co. v. Keely, 23 Ind. 133; 2 Bates Pl. 615.

Meek v. Penn. Co., 38 Ohio St. 632, was an action for wrongfully causing the death of the plaintiff’s intestate. The allegations of the petition which were in issue were, that the defendant by its wrongful act, neglect and default caused the death of Meek, the plaintiff’s intestate, while'he was walking on the railroad track in the city of Bellaire. There was no averment in the petition of a violation by the defendant of an ordinance of the city. Upon the trial, an ordinance of the city, forbidding trains to move at a higher rate of speed than eight miles an hour, was offered in evidence and rejected by the court; This was held to be error.

This court, speaking by Johnson, J., said : While the violation of a law ,OR ordinance is not per se, conclusive proof of negligence that will render the company liable, yet it is competent to be considered with all other evidence in the case. * * * It was' a command to those operating trains within the city limits which it was their duty to obey, and a disobedience, either wilfully or negligently, resulting in injury, is some evidence to be considered in determining the defendant’s liability. It served to give character to the act causing the injury.”

The plaintiff, in the case at bar, having alleged that the defendant carelessly sold and delivered to the plaintiff a poisonous drug for harmless medicine, could safely rest the issue upon such averment. To plead specially all the facts and circumstances from which the negligence could be inferred, would be to plead evidence instead of facts.

It was a question fairly addressed to the jury, in determining the issue of negligence, whether the omission to label the fatal drug contributed to the wrong complained of, and such omission was certainly none the less a negligent act because it is denounced as a crime by the statute. The charge of the court fairly submitted to the jury whether this particular act of omission contributed to the injury complained of.

This conclusion answers other propositions relied upon by the plaintiff in error as ground of reversal.

YI. The plaintiff maintains that the court erred in giving the instructions to the jury upon the subject of the husband’s agency and of his relation to his wife in the purchase of the drug which caused her death, as they appear in the sixth paragraph of the statement.

The court charged the jury, substantially, that a purchase of medicine by a husband for his wife in the discharge of his duty as such husband, does not constitute him the agent of his wife in such sense as to charge her with his negligence. As shown by the statement of the case, the only authority given to the husband by the wife for the purchase of medicine is to be found in the expression by her of a desire or need of some oil of sweet almonds. There is mo thing in the record to justify the assumption that she had done or said anything that can be construed as a direction to him concerning the purchase for her of the medicine she required. It was clearly within the line of his simplest duty as a husband to procure for her the desired medicine. The criticism of counsel upon the instructions complained of is that in the definition of agency the wife must have been personally present with her husband at the store and he there must have been under her direction and control. The instruction was: In order to make him the agent of the wife in this transaction she must have selected the medicine; directed that he should purchase it, and he must have had nothing to do in the matter except by her procurement and direction.” We do not think that this instruction is capable of the construction given it by counsel, nor that the jury could have so understood it. It appeared by the evidence, and that without conflict, that the wife was confined to her bed at home, and we must suppose that the jury considered the instruction in the light of that fact. The court was right. The strong presumption is that a husband in the purchase of necessaries, either food or medicine, for his wife and children, is acting upon the promptings of the duty which he owes to them as a husband and father, rather than as a mere medium or agent in a business transaction; and evidence to rebut this presumption should be quite clear and satisfactory, at least answering the requirements of the very careful and considerate instruction of the court below upon this subject.

Intimately connected with this subject is that arising upon the exception to the instruction which is set forth in the seventh • paragraph of the statement, which we shall next consider.

YII. The court instructed the jury that the doctrine of imputed negligence does not prevail in Ohio, and that if the jury should find that the deceased came to her death by the wrongful act, neglect or default of the defendant by himself or his agent, then the plaintiff is not deprived of the right of action by reason of the negligence of the husband unless he was her agent at the time. The court below was asked to apply the familiar principle of contributory negligence as a defense to the plaintiff’s action. To do this it became necessary, in case the jury should find the wife without fault, to insist that the negligence of the husband contributed with that of the defendant to produce the injury complained of. This defense necessarily involved the assumption either that the husband was the agent of the wife or that by reason of their marital relation his negligence was to be imputed to her. The contention now is that the doctrine of imputed negligence still prevails in Ohio so far as relates to husband and wife. In Bellefontaine & Ind. R. Co. v. Snyder, 18 Ohio St. 399, it was held that the negligence of a parent or custodian of a child, cannot be imputed to the child, to bar its right of action against others for injuries resulting from their wrongful acts.

Again, it was said by this court in Cleveland, Col. & Cin. R. Co. v. Manson, 30 Ohio St. 451, (first paragraph of the syllabus): “ The doctrine of imputed negligence does not prevail in the state of Ohio, and a child of tender years, injured by the fault of another, is not deprived of a right of action, by reason of contributory negligence on the part of a parent or guardian.”

Transfer Co. v. Kelly, 36 Ohio St. 86, it was held that in an action by a railroad passenger, (without fault himself) for a personal injury, against a defendant whose negligence directly and proximately concurred with the negligence of the railroad connpany in producing the injury, the concurrent negligence of the company cannot be imputed to the plaintiff’ so as to charge him with contributing to his own injury.

In Street Railway Co. v. Eadie, 43 Ohio St. 91, a minor, fully capable of taking reasonable care, of herself, was riding Avith her father in his Avagon, Avhen she Avas injured by a collision between the wagon and a street car, caused by the mutual negligence of her father and a street car driver, but without fault on her part. It was held that her father’s negligence Avas not to be imputed to her to bar her recovery against the street car company. It is maintained, hoAvevef, that these cases are all distinguishable from the case at bar. The contention is that “the common Irav doctrine Avith reference to the marital relation still continues in force in Ohio; that so far as their personal relations are concerned, the husband and AAÚfe arc one in laAV; that the acts of each are binding upon and imputable to the other.”

The statute authorizes an action like the present one in any case Avhere the defendant AArould have been liable if death had not ensued. Indeed, this is one of the tests of the right to recover. If the Avife vvere alive and prosecuting her action for an injury'resulting to her by reason of the wrongful act of the defendant, her recovery would be solely for her OAvn use and benefit, and the fruits of her judgment Avould be her sole and separate property free from any right of her husband therein, growing out of the marital relation. The plaintiff does not prosecute tbis action as husband, but as the administrator of the wife. It is prosecuted for the benefit of the children as well as the husband of the intestate. The right of the beneficiaries as well to a recovery as to the fruits of it, are to be tested by the status which the law would have ascribed to the wife and mother if she were alive and prosecuting her action for an injury to her health or person.

The law having severed the relations for the purposes of such prosecution by her, what reason can be urged for imputing to her the contributory negligence of one who could have had no lawful pecuniary interest in a recovery by her for an injury she had sustained by the negligence of a wrong doer ?

The doctrine of contributory negligence which is invoked by the plaintiff in error, is founded upon considerations which find no application in logic or justice to the case at bar. These are: (1) The mutual wrong and negligence of the parties, and the reluctance of the law to attempt an apportionment of the wrong between them. (2) The principle which requires every suitor who seeks to enforce his rights or redress his wrongs, to go into court with clean hands, and which will not permit him to recover for his own wrong. (3) The policy of making the personal interests of parties dependent upon their care and prudence. This is the settled doctrine of our state. Bellefontaine & Ind. R. Co. v. Snyder, supra; Street Raiway Co. v. Eadie, supra. None of these considerations call upon us to declare as the law of this state that the personal representative of plaintiff’s intestate shall not recover for her death caused, without her fault, by the negligent act of the defendant, by reason of any fiction-that her husband’s act was hers.

VIII. The court was requested by the- defendant to instruct the jury that: If Forster, as the agent of Davis, was guilty of negligence in not properly putting up and labeling the drug, still if that negligence did not cause the death of Mrs. Guarnieri, that is, if you find that had the medicine been properly put up and labeled, she would have taken it precisely as she did take it, and died by reason thereof, then such negligence did not produce the death and the plaintiff cannot recover, and you shall find for the defendant.”

The court properly refused this request. It necessarily involved the presupposition that the failure to label the drug sold was the only act of negligence for which the defendant was called upon to answer. The question becomes an important one in the light of the special verdict which contains the following questions and answers : 15. If Forster had labeled the bottle which Guarnieri took away, e oil of bitter almond would that have prevented the injury? Probably not. 16. If Forster had' labeled the bottle ‘poison’ would that have prevented the injury ? Probably not.”

The j uiy was dealing with the probabilities in the case. It is not necessary to the determination of the issues in a civil case (with very few exceptions, of which the present is not one), that the triers should believe the existence of any material fact, but that the probabilities, when weighed by them, preponderate in favor of the fact which they find to be established by the proof. It is legally and logically impossible for it to be probable that a fact exists, and at the same time probable that it does not exist. When the jury found that the injury would probably not have been prevented by labeling the bottle poison,” or oil of bitter almond,” they settled that issue in favor of the defendant. The jury may well have concluded that the imperfect knowledge of the English language which Guarnieri and his wife were both shown to possess, would have prevented an intelligent understanding of any label written or printed in English. But these facts still remained : A poisonous drug was sold and delivered to one who believed it to be an innocent medicine, and who delivered it to his wife to bo taken as such. That Forster sold the drug without knowing that it was poison. That Guarnieri, in procuring the drug, relied upon the skill of Forster, and not upon his own inspection of it.

That, while Guarnieri smelled of the drug before purchasing it, and remarked, “ That smells like it” (the bland oil), the odor of the two is similar. That Mrs. Guarnieri could not by the use of ordinary care have discovered, before swallowing it, that it was not the harmless oil. That Guarnieri could not, by the use of ordinary care, have discovered that it was not oil of sweet almond. That Guarnieri was not acting as the agent of his wife. These facts were all found by the jury either by the general finding for the plaintiff, or by the special verdict.

The jury was called upon to say whether these facts established the charge of negligence alleged in the petition. That they did can scarcely admit of serious discussion, unless indeed the claim of plaintiff in error, which is considered in the next subdivision of this opinion, is well founded. Before proceeding to the consideration of that branch of the case, it is proper to say that in our opinion the special verdict already referred to is an element in this case whose importance is underrated by the counsel for plaintiff-in error.

Indeed, it was not deemed of sufficient consequence to justify incorporating it in the printed record filed in the case. The findings of this special verdict render immaterial such portions of the charge to the. jury as were not calculated to induce the particular finding upon the subject involved in the instruction.

A special verdict is authorized by our statutes, which provide that when a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly. (Sections 5200, 5201, 5202, Revised Statutes.) It was held in Marcote v. Railroad Co., 49 Mich. 99 (Cooley, J., delivering the opinion), that where it appears by the special findings of the jury that the case did not turn upon particular matters involved in the charge, so much of the eharge as relates to such matters is immaterial.

IX. The plaintiff in error vigorously maintains, nowever, that neither the facts alleged in the petition, nor those proved upon the trial establish his liability. The reasoning is that Davis was under no obligation to the deceased either by contract or by operation of law That there was not such privity of relation between him and the deceased as imposed upon him any duty towards her, and that he was not charged in the petition with the violation of any duty arising by operation of law. It is not a sound proposition to say that a dealer in drugs, having in stock, and for sale, deadly poisons, owes no duty to persons who do not deal directly with him in relation to them. The public safety and security against the fatal consequences of negligence in keeping, handling and disposing of such dangerous drugs, is a consideration to which no dealer can safely close his eyes. An imperative social duty requires of him that he use such precautions as are liable to prevent death or serious injury to those who may, in the ordinary course of events, be exposed to the dangers incident to the traffic in poisonous drugs. The jury found that Forster, the agent of the defendant, sold a deadly drug to a customer without knowing it was a poison, and without ascertaining for what use or for whom it was purchased. This is practically the finding of the jury á's indicated in the answers to the second and third interrogatories propounded by the defendant below.

In Thomas v. Winchester, 6 N. Y. 397, the defendant below, by his agent, put up belladomia (a poison), labeled it dandelion (a harmless drug), and put it upon the market. After passing through several intermediate agencies, in the original package, it was finally sold as dandelion by an innocent retailer to a customer who used it to her serious injury. The court held, as indicated by the syllabus:

A dealer in drugs and medicines, who carelessly labels a deadly poison as a harmless medicine, and sends it so labeled into market, is liable to all persons, who, without fault on their part, are injured by using it as such medicine, in consequence of the false label.

The liability of the dealer in such case arises, not out of any contract or _ direct privity between him and the person injured, but out of the duty which the law imposes upon him to avoid acts in their nature dangerous to the lives of others. He is liable, therefore, though the poisonous drug with such label may have passed through many intermediate sales before it reached the hands of the person injured.

“ Where such negligent act is done by an agent, the principal is liable for the injury caused thereby.”

It was held in Norton v. Sewall, 106 Mass. 143, that: “If an apothecary negligently sells a deadly poison as and for a harmless medicine to A, who buys it to administer to B, and gives B a dose of it as a medicine, from which he dies in a few hours, a right of action in tort against the apothecary survives to B’s administrator.”

Gray, J., speaking for the court says : “This finding includes a violation of duty on the part of the defendant, and an injury resulting therefrom to the intestate, for which the defendant was responsible, without regard to the question of privity of contract between them.” The analogies of this case 'to the one at bar are obvious. It was neither alleged nor proved in that case that the purchaser informed the dealer for whom the drug was intended. Cooley, in his valuable treatise on the law of torts, comments with approval upon the case of Thomas v. Winchester, spura, and adds: “There is a maxim that ‘fraud is not purged by circuity/ and this is true of any wrongful act. If its influence must naturally, and without the interposition of any extraordinary event, produce to some one an injurious result, it is immaterial what shall be the circuit of events or the number of successive stages.” Cooley’s Torts, 75.

In the case at bar the evidence tended to show, and the jury was justified in finding (and we are now to presume did find by the general and special verdict), that Guarnieri called at the drug store of the defendant for a harmless medicine ; that the agent of the defendant carelessly sold him a poisonous drug without informing himself by whom or for what it was intended to be used; that the purchaser, supposing it to be what he had called for, administered it to his wife who took it in the belief that it was the harmless medicine, and instantly died from its effects.

The court is unanimous in the opinion that these facts constituted a cause of action in favor of the administrator of the deceased for wrongfully causing her death.

10. The exception to instructions to the jury on the subject of damages, found in paragraph 9 of the statement, is not open to the objection of counsel that it includes in the term services to the family. ” not only financial aid, but companion-^ ship to the husband and children, instruction by way of culture, moral training, and other elements of like character, which are not within the rule of pecuniary compensation. It impresses us as a sound, clear and considerate statement of the true rule of damages applicable to the case.

There are other assignments of error, all of which have been thoroughly considered, and, in our opinion, they are not well taken.

The case is an unfortunate one; no intentional wrong is imputed to any one; but a case of actionable neglect was clearly established. The prosecution was contested, step by step, with more than ordinary skill and vigor; the trial court was called upon to determine during the heat of the trial almost an infinite number and variety of questions, but the record is free from error and the Judgment is affirmed.

Minshall J., dissents from the second proposition of the syllabus, but concurs in the judgment on other grounds.


author: Williams, J.

text:
    Haff v. Fuller.

      Practice — What proper procedure to correct errors in proceedings of township trustees.

    The final orders of township trustees, establishing ditches, drains, and watercourses, may be reviewed by petition in error, and reversed for errors apparent on the record. Such procedure, and not injunction restraining the construction of the ditch, drain or water-course, is the appropriate remedy for the correction of such errors; and an faction for an injunction to restrain the construction of a ditch, for errors and defects in the proceedings of the trustees establishing the same, cannot be maintained, where the only evidence to support the action is the ditch record, on which the errors and defects complained of appear.
    (Decided January 10, 1888.)
    Error to the Circuit Court of Sandusky County.
    Fuller commenced his action in tbe court of common pleas of Sandusky county, against Haff and others, to enjoin tbe construction of a ditch, ordered by tbe trustees of Townsend township in that county, on the ground that the trustees had not jurisdiction to establish the ditch, because: (1) the petition for the ditch does not state that it will be conducive to the public health, convenience or welfare; (2) the trustees made no finding that the petitioners filed a bond or gave notice of the pendency and hearing of the petition, nor that the ditch would be conducive to the public convenience or welfare; (3) that the trustees lost jurisdiction by adjourning during the hearing; and (4) one of the trustees was a brother of a petitioner for the ditch.
    The allegations of the plaintiff’s petition being denied by the answer, the case was tried in the common pleas, where judgment was rendered for the defendant in the action. On the trial of the cause in the circuit court on appeal, the plaintiff, to maintain the issues-on his part, gave in evidence the ditch record of Townsend township, which shows that the petition for the projected ditch states the ditch will be conducive to the public health, convenience and welfare, and the trustees in their report establishing the ditch found that it will be so. It also contains an entry to the effect that when the petition was filed with the township clerk “the corresponding bond required by law” was filed with it. The plaintiff also proposed to prove that the ditch was not required by the public health or welfare, but this being rejected he offered no further evidence.
    The defendant offered evidence to show that in fact the proper bond^was filed with the clerk of the township, and that notice was given the plaintiff of the pendency of the petition for the ditch; that the trustees so found the facts to be, and that the plaintiff was present at the hearing before the trustees. But the court held the testimony incompetent and excluded it.
    Judgment having been rendered for the plaintiff below perpetually enjoining the construction of the ditch, the- defendants prosecute error to this court to obtain a reversal of the judgment.

      Richards 6s Heffner, for plaintiffs in error.

      John M. Lemmon, for defendant in error.
   Williams, J.

As a result of tbe rule that courts of equity do not entertain jurisdiction for the enforcement of rights, or the prevention of wrongs, when the legal tribunals are capable of affording the redress, it is always a sufficient objection to the granting of an injunction, that the party aggrieved has a full and adequate remedy at law. In' the application of the rule it is accordingly held that courts of equity will not sit as courts of error, to revise or correct proceedings at law, or grant injunctions against judgments, because of errors in the proceedings, where proper relief can be had in the ordinary course of appellate procedure. And, though there has been much conflict of authority in regard to the application of the doctrine to void judgments, “the prevailing tendency of the the courts seems to be toward the establishment of the simple test, in such cases, of whether an adequate remedy exists at law for protecting the judgment debtor against the judgment. Where such remedy exists either by appeal, certiorari, application to the court itself which rendered the judgment, or in any other legal and adequate manner, no satisfactory reason is perceived why equity should depart from the universal rule of withholding its extraordinary aid, to redress a grievance which is remediable at law.” 1 High on Injunctions, sec. 230.

In this state, the proceedings and final orders of township trustees and county commissioners establishing ditches and roads, and of other boards exercising similiar judicial functions, may be reviewed by petition in error, and reversed for errors appearing on the record. Revised Statutes, section 6708; Burrows v. Vandevier, 3 Ohio, 383; Ferris v. Bramble, 5 Ohio St. 109; Beebes. Scheidt, 13 Ohio St. 406, 419; Commissioners of Wood County v. Junkins, 19 Ohio St. 348; Fravert v. Finfrock, 43 Ohio St. 335. The remedy thus afforded being adequate for the correction of errors in such proceedings which are disclosed by the record, the rule aready stated has been applied in such cases, though the errors so appearing rendered the proceedings void for want of jurisdiction. Frevert v. Finfrock, 31 Ohio St. 621; Fravert v. Finfrock, 43 Ohio St. 335.

The operation of the rule is not extended, however, to cases where the steps are regular in form, so that the illegality does not appear on the face of the proceedings themselves.” 1 High on Injunctions, sec. 578. In cases of that kind, if it be shown, contrary to what appears on the record, that the board or tribunal proceeded without jurisdiction, injunctions may be granted, for there is then no adequate remedy at law. Anderson v. Commissioners, 12 Ohio St. 635; Hays v. Jones, 27 Ohio St. 218. And where the judgment or order has been obtained by the fraud or misconduct of the party, or other circumstances of fraud, accident or mistake or the like are shown, it has been held that injunction restraining the execution of the judgment or order is a proper remedy. Gifford v. Morrison, 37 Ohio St. 506; Frevert v. Finfrock, 31 Ohio St. 627. But nothing of the kind is claimed in this case.

We do not find it necessary to decide here whether the defects in the ditch record given in evidence by the plaintiff on the trial of the action in the circuit court, are such as to require or authorize the reversal of the order of the trustees establishing the ditch. Pie gave no evidence in support of his action but the record, and therefore whatever infirmities there were in the proceedings of the trustees, of which he sought to avail himself, were apparent on the record. If they were not of that substantial character Avhich affected the validity of the proceedings, he was not entitled upon that proof to the perpetual injunction granted him. If they were of that character, they appeared on the face of the record, and the remedy by petition in error to reverse was open to him. Such a proceeding afforded a plain and adequate remedy, and no ground for interference by a court of equity by injunction was shown.

The offer of the plaintiff below to prove that the ditch was not required by the public health or convenience, in no way aids his case. The proposed inquiry could not be made in that way. The determination of the contemplated public use, is by the statute conclusively committed to the trustees in the first instance, and to the jury on appeal. Reviséd Statutes, sections 4511 and 4539.

Judgment of the circuit court reversed, and judgment for defendant bebw.