author:
McIlvaine, J.
     Boynton, C. J.

text:
    Railroad Company v. Hutchins.
    1. A petition by a guardian alleged that his wards were owners in fee simple of a certain woodland, that the timber thereon was cut down and removed by a person unknown and without any authority whatever, and that the same was taken, used and possessed for its own use, and without any authority whatever, by a certain railroad company, which company was afterwards consolidated with another railroad company, &c. Held, that on demurrer, the petition stated sufficient facts to constitute a cause of action for the conversion of personal property.
    2. Where a discretionary power to sell lands is given by a will to the executor, such discretion cannot be delegated. But where an attorney in fact of such executor assumes to make such sale, the subsequent receipt of the purchase-money, by the executor, is an adoption and ratification of the sale, and is equivalent to the exercise of the discretion by the executor himself.
    3. A. judgment determines the rights of the parties according to the facts stated in the pleadings; and if, after issue joined, a change takes place in the rights of the parties, it must be shown bysupplemental pleading, otherwise it should be disregarded.
    4. In an action for the conversion of chattels, against an innocent purchaser, from a person who had previously converted the property to his own use, and had afterward, added to its value by his own labor, the measure of the damages is the value of the chattels when first taken from the owner, whether the first taker was a willful or an involuntary trespasser. L. 8. & M. 8. E. E. Oo. v. Hutchim, 32 Ohio St. 571, approved

      ' Error to the Court of Common Pleas of Cuyahoga County. Reserved by the District Court.
    The petition in the original action was as follows:
    “ The State oe Ohio, ) In the Court oe Common Cuyahoga County, ss: j Pleas.
    “John C. Hutchins, Guardian of Joseph R.' and Edward C. Barbour, minor children,

      PUff., v. Petition. “The Lake Shore & Michigan Southern Railway Company, Deft.

    “ John C. Hutchins, the above named plaintiff, says that on the 9th day of September, 1869, he was duly appointed and qualified as guardian of the estate of the said minor children, by the probate court of Cuyahoga county, Ohio, having due authority. That on the 2fith day of May, 1862, said minor children were the owners in fee simple of the following described land : ‘ Situate in the township of Mentor, county of Lake, and State of Ohio, and is known as being in the northeasterly part of the Ely tract, so called, in said Mentor township, and is bounded on the south, east and north by said tract lines, and on the west by the continuation of the main south tract line, north, till it strikes the north line of said Ely tract, at a point in said north line twenty-three chains and eighty-one links from the northeast quarter of said tract, the east and west lines of the land hereby conveyed, being 13 chains and thirty-four links in length, containing (31) thirty-one acres of land.’
    “ Said land, when owned by the said minors, was thickly' wooded with excellent timber, and was very valuable on that account; that all, or nearly all of said timber, while said land was owned by said minors, was cut down and removed by persons now to this plaintiff unknown, without any authority whatever, and the same taken, used and possessed, for its own benefit, without any authority whatever, by the Cleveland, Paineville and Ashtabula Railroad Company, which was, on or about the 1st day of April, 1869, consolidated with certain other railroad companies, under the name and style of the Lake Shore and Michigan Southern Railway Company, which last named company is made the defendant in this action.

      “ By reason of the said timber being taken from said land and converted to its own use by the said Cleveland, Painesville and Ashtabula Railroad Company, said minor children were damaged in the amount of four thousand six hundred and fifty dollars ($4,650.00), for which sum, by reason of the premises, plaintiff asks judgment against the defendant, the Lake Shore and Michigan Southern Railway Company.
    “ Hutchins & Ingersoll,
    Attys. for Plaintiff.”
    A general demurrer to this petition was overruled.
    Thereupon issue was joined by answer as follows :

      “ The said Lake Shore and Michigan Southern Railway Company, defendant, for answer says that for want of information it denies that the said minors, wards of the plaintiff, were, on the 24th day of May, a. d. 1862, the owners in fee simple of the land in the petition described. It denies the allegation in the petition, that said land was then, or when alleged to have been owned by said minors, thickly wooded with excellent timber, and that the same was very valuable on that account. It denies the allegation that all, or nearly all of said timber, when said land was owned by said minors, was cut down and removed by any person or persons without authority. It denies that the same or any part thereof was either taken, used or possessed by the said Cleveland, Painesville & Ashtabula Railroad Company, as is alleged against it. It denies that any damages have been suffered by said minors, and denies its liability to the plaintiff for any amount.
    “ James Mason,
    Atty. for Deft.”
    On the trial a verdict and judgment were rendered for the plaintiff for $1,820.

      A motion for a new trial was overruled, and a bill of exceptions taken, setting out all the testimony and divers exceptions to tbe introduction of testimony, refusing testimony and to charges given and charges refused.
    A petition in error was filed in the district court, by the defendant below, also a cross-petition by the plaintiff below which were reserved by the district court. A further state ment of facts will be found in the opinion.

      James Mason, W. J. Boardman and Estep & Squire, for plaintiff in error:
    I. The petition was demurrable as a petition in trespass. It is difficult to determine from the form of the petition what the exact character of the action is, i. e., whether in the nature of an action in trespass or in trover. Under the common law forms it might possibly be held to be a joinder of these two forms, of which advantage could be taken by a general demurrer. Swan’s Pr. & Prec. 30; Cooper v. Bissell, 16 Johns. 146. It, however, contains more of the elements of an action in trespass than of an action in trover. It alleges that the .plaintiff’s wards were the owners of a certain tract of land (describing it), which was made valuable by the timber standing upon it, and that said wards were damaged by the defendants taking from said land said timber, and converting the same to its own use. The right to recover is not founded upon. an alleged ownership of the timber, but of the land. Not that the timber was valuable, but that the land was valuable on account of the timber. The gist, therefore, of the action is damage to the land. Frost v. Duncan, 19 Barb. 560.
    To sustain the action of trespass to recover damages done to real property, it must appear that the plaintiff was in actual or constructive possession of the property. It is not alleged in the petition, that the plaintiff or his wards were in the possession of the premises at the time the trespass was committed, or that either of them thereafter obtained possession of the same. It does, however, appear inferentially from the allegations of the petition, that other parties had possession of the land. If, therefore, it is necessary to allege in a petition in trespass, that the plaintiff had at the time of the trespass possession of the land, the court erred in not sustaining the demurrer to the petition in this case.
    II. It was demurrable as a petition in trover, for the reason that it is founded upon an alleged title to real property, and not upon a title to personal property. In the petition it is not alleged by the plaintiff that the timber, that was cut down by persons unknown to the plaintiff, and subsequently removed from the land, was the property of his wards, but only that the land from which the timber was removed was their property; nor is it alleged that the timber was at the time it was taken, or ever had been, prior to that time, in their possession. The severing of timber from the land changes it from real to personal property, and the ownership thereof no more depends upon the title of the land than does the ownership of any other personal property. Mather v. Ministers of Trinity Church, 3 S. & R. 500, and cases there cited. But we claim also that the petition, as a petition in trover, was demurrable, for the reason that an allegation that the plaintiff owned the land is not an allegation of the ownership of the timber removed therefrom by the defendant and converted after it had been severed from the land. The plaintiff’s wards might have had title to the land and not have had title to the timber severed therefrom. Although one fact might be presumed from the existence of another, still, in pleading, it is not sufficient to allege the latter fact only, if the existence of the former is required as the foundation of the action. The principles applicable to this question in pleading, we find clearly and forcibly presented in the argument of Judge Curtiss, made in the celebrated Dred Scott case, pages 220 and 221 of the second volume of his memoirs, edited by his son ; and see 9 Mees. & Wels. 666; 10 Iredell (N. C.) 190.
    III. The action was not maintainable by the plaintiff against the defendant, because the plaintiff’s wards had become of age before the action was brought. Rev. Stat. §§ 6258, 6261; Campbell v. English, Wright, 119; Barret v. Commonwealth, 4 Marshall (Ky.) 389.
    IY. The plaintiff in error claims, that having taken possession of and purchased the wood in good faith, it can only be charged with interest on the value thereof from the time the owner demanded the wood, or its value, or if no such demand was ever made, then only from the time of the commencement of this action. Hubbard v. Railroad Co., 11 Met. 124; Gellett v. Roberts, 57 N. Y. 28; Ely v. Ehle, 3 Comstock, 509 ; Barrett v. Warren, 3 Hill, 348; Dixon v. Coldwell, 15 Ohio St. 412 ; Havin v. Foster, 9 Pick. 112.

      J. F. Ingersoll, for defendant in error:
    I. The petition is not demurrable.- The thing complained of is not the cutting down or removal by defendant, but a conversion by it.
    The petition does not state directly that said minors owned the timber at the time when it was severed from the land, nor that they owned the wood into which the timber was cut by those who did the work. It., however, alleges that they owned the land on which this timber was standing at the time when it was cut off, and this, we submit, makes a prima facie case of ownership of the timber. See 2 Blacks. Comm, ch. 2.
    II. The court did not err in its refusal to take the case from the jury, on the ground urged by the defendants, to wit: that Hutchins was not the guardian of the Barbour boys at the commencement of the action.
    If we look carefully to the issues made by the pleadings, we shall find that this is not a subject of evidence. There is no issue as to this. The petition avers that John C. Hut-chins was duly qualified as guardian, &c., and while the answer denies specifically every other material allegation of the petition, it does not deny the guardianship. 16 Ohio St. 455; Code, § 127. “ Every material allegation of the petition not controverted by the answer, shah, for the purposes of the action, be taken as true.”
    III. There was no error in the charge of the court which allowed the jury to incorporate interest on the value of the wood taken, from the time of its conversion, as part of plaintiff’s damages. 2 Greenl. Ev. § 276; Sturges v. Keith, 57 Ill. 451; Woolsey v. Seeley, Wright, 363; Nyde v. Noble, 13 N. H. 494 ; 8 Pick. 542; 5 Burr. 2657; 3 Ark. 127; 32 Vt. 232; 34 Vt. 330 ; 22 Wend. 285.
    IV. The true rule of damages for the conversion of property is the value of the property at the time of the conversion. 2 Blacks. Comm. ch. 26, § 6; 1 Oreen].. Ev. § 37, and cases cited; 2 Kent Comm. 363. From the English cases sustaining this doctrine, that in a case of, conversion the measure of damages is the value at the time of conversion, we cite: 28 Eng. L. & Eq. 175 ; 5 Mees. & W. 351; 17 C. B. (N. S.) 279.; 3 Camp. 477; 7 Carr. & P. 478. And among American cases we select: 7 Cow. 94; 8 Wend. 505; 3 N. V. 379 ; 20 Wend. 21; 22 Wend. 285 ; 4 Pick. 466; 8 Pick. 90; 14 Pick. 356; 17 Pick. 1; 1 Gray, 621; 13 Gray, 313; 1 Metc. 172; 7 Metc. 354; 13 Metc. 267; 3 Rich. (S. C.) 191; 16 Kans. 209; 12 Conn. 473; 19 Conn. 330; 20 Conn. 204; 26 Conn. 389; 14 Ark. 505; 25 Tex. (Supp.) 276; 33 Pa. St. 251; 21 Minn. 491; 9 Wis. 349; 15 Mich. 75 ; 1 Nott & McC. 221; 32 Vt. 232: 34 Vt. 330; 52 Md. 578; 25 Me. 272; 24 Ind. 277; Wright, 363. Now, in the case at bar, the proof shows that our property taken and converted to its use by defendant was wood and ties, and the value of these should be our damages, not the value of the timber standing on the land. The conversion by defendant was that of wood and ties, as shown by all the evidence.
   McIlvaine, J.

It is claimed by plaintiff in error, that the overruling of the demurrer to the petition was error. That sufficient facts to constitute a cause of action were not stated.

Under the liberal rules of the code of civil procedure, which require a construction favorable to the pleader, the court is of opinion that the demurrer was not well taken. As against a demurrer, we think a cause of action for damages for the conversion of timber, after the same had been severed from the land, and had become the personal property of the plaintiff, by the defendant to its own use, is sufficiently stated, whatever the rule would have been on a motion to make the petition definite and certain.

As to the ownership) of the chattels alleged to have been converted by the defendant to its own use, the plaintiff relied on the title of his wards to the land before and at the time the timber was severed from the realty.

On the part of defendant, it is claimed that the plaintiff’s wai’ds had no title whatever to the land or the timber.

To maintain the issue on his part, the plaintiff proved title to the land in one Justin Ely, and then offered the last will and testament of said Justin Ely, from which the "following extracts only are material:

(< All the residue and remainder of my estate, real and personal, wherever situate, I give, devise and bequeath to my son Charles and my daughter Lucy, to have, receive and enjoy the use, income and profit thereof in equal shares during their natural lives, respectively; and upon their decease I give, devise and bequeath the same to all my grandchildren then living, to be equally divided among them, and to their heirs forever; provided, however, that if the wife of my son Charles shall survive her husband, then she shall have the use and income of his portion thereof during her life, and the de rise to my grandchildren shall not take effect in respect to such portion until her decease.
<s I hereby constitute and appoint my son Charles and my daughter Lucy executors of this my last will and testament, and it is my direction that they be not required to give bonds for the discharge of the duties of said trust, nor to return an inventory of my estate.
K And I do authorize my said executors, to sell at their discretion any part, of my real estate not herein specifically devised, and to change, at their discretion, any of the securities belonging to my estate.”

The locus in qua was part of the residue so devised. Next was offered a power of attorney from said Charles and Lucy, ■to one Heman Ely, purporting, in ample form, to authorize said attorney to sell and convey any part or all of said lands, and upon such terms as he might deem best. Next a deed from Heman Ely, as such attorney for the lands described in the petition, to one. Bowles; and then mesne conveyances from Bowles to the wards of the plaintiff. Testimony was also offered tending to show that the consideration received by said Heman Ely upon the sale to Bowles was paid to said Charles and Lucy Ely. And also, that actual possession of the premises had passed with and by the several mesne conveyances.

Upon this state of the testimony the court charged the jury,' in effect, that if they found the facts in accordance with the tendency of the proof, then the ownership of the plaintiff was sufficient to' sustain the action although his wards were seized only of an equitable estate in the land.

We think there was no error in the charge to the prejudice of the defendant, and that the finding of the jury under it should not be disturbed. True, the power conferred upon the executors of Justin Ely to sell these lands (beyond the life estates), was to be exercised in the discretion of the executors, and clearly, the exercise of this discretion could not be delegated by them to another. If, however, the executors had exercised the discretion and had contracted to sell the lands, it would have been competent for them to have transferred the title to the purchaser by an attorney in fact. For in such case, the act of the attorney would be ministerial merely, and not at all discretionary. In the case before us, the attorney having assumed to sell and convey, the subsequent receipt of the purchase-money by thé executors was such an adoption and ratification of the contract of sale, as was equivalent to an exercise of the discretionary power of sale by the executors themselves, so that, after possession taken by the pui’chasers, their ownership in the lands was sufficiently established to maintain an action for the conversion of timber. And if the court below was wrong in* holding that plaintiff’s wards were seized of an equitable estate in the lands, and not of the legal estate, the defendant was not prejudiced thereby.

During the progress of the trial testimony was offered tending to show that, during the pendency of the action, the plaintiff’s wards had each arrived at the age of twenty-one years, whereupon the defendant asked leave to amend its answer so as to show such fact, but declined to amend on con dition of the payment of costs. And after the testimony was closed, the defendant moved the court to dismiss the action, or direct the jury to return a verdict for defendant on the following grounds:

“ For cause defendant says that it appears from the testimony that the ward Joseph became of full age some time in 1870, and the ward Edward became of full age some time in the year 1877, for which reasons defendant says plaintiff is not entitled to the money if recovered. That it does not belong to him as guardian. That since 1877 he has not been the guardian of either or for either of said alleged wards.”

"We need not stop now to inquire what action the court should have taken, if the facts here stated had been pleaded by supplemental answer before trial.

It is enough to say, that during the trial, leave to amend was at the discretion of the court, and no issue having been tendered upon this point, it was not error to refuse the motion to dismiss. The rights of the parties as they existed at the commencement of the action should prevail, unless a subsequent change in those rights be shown by supplemental pleadings.

Several other matters, also, are alleged for error, by the plaintiff in error, but we find in the record no cause for reversal of the judgment on its petition.

By the cross-petition in error, the defendant -alleges for error the charge of the court as to the measure of damages.

For the purpose of resolving this question, the case may be stated thus: The plaintiff was the owner of land, upon which trees were standing and growing. By an act of willful trespass, the plaintiff’s trees were cut and felled. After the cutting down of the trees,the trespassers converted the same into cord wood and railroad ties, and sold and delivered the wood and ties to the defendant, who, being ignorant of the trespass, applied the same to its own irse. The value of the standing trees was proved ; also the value of the ties and wood at the time the same were delivered to and received by the defendant. Testimony was offered by the plaintiff to show that the value of the trees after they were felled, was greater than while standing, although less than when converted into ties and wood, which testimony was rejected.

This case was before the supreme court commission, and is reported in 32 Ohio St. 571, wherein it was held “ Timber was cut from the lands of B. by trespassers, who, by their labor, converted it into cord-wood and railroad ties, thus, increasing its value three-fold. It was then sold to an innocent purchaser, who was sued by B. for the value of the wood and ties. Whatever might be the rule of damages” (as against the trespassers) “as against innocent purchasers, B. cannot recover the value of the timber as enhanced by the labor of the wrong-doers after it was severed from the realtyand a judgment for such enhanced value was reversed.

The cause being removed to the court below for a new trial, the court among other things charged the jury as follows:

“The supreme court have given us a different rule of damages from that laid down upon the former trial of the case in this court. Here, upon the former two trials of this court, the judges charged the jury that the plaintiffs would be entitled to recover the value of the wood or ties, as the case might be, as they were when delivered to the railroad company, and the^ actually received them. The supreme court say that that was not .the proper rule.
“Now, whether the supreme court was wrong or not, I don’t propose to question. And counsel don’t claim that I ■ought-to question it.
- “There has been some little discrepancy in the opinion of the different counsel as to what the supreme court did say. But I have put the interpretation upon it that, as I believe, •the supreme court did say, and as I give it to you, and you have not any more right to question whether I am wrong, than I have to question whether the supreme court was wrong. Now, that rule is simply this: That if the plaintiff is entitled to recover, they will be entitled to recover the value of the timber, as it stood in the woods at the time it was cut down by these wrong-doers.”

As -we understand the rule laid down by the commission, the value of • the timber, as enhanced by the labor of cutting down, was tlie true measure of damages. And surely, as the labor of felling the trees was a trespass on the real estate of the plaintiff, who has waived the wrong done to his realty, such 'labor was not an accession to the value of his personal property, which the trees first became after they were cut down and severed from the land. The value, at least, of the property after it became personal, was the measure of the injury complained of by the plaintiff. This charge of the court, as well as the refusal to hear testimony as to the value of the trees after they were severed from the realty, was to the prejudice of the plaintiff.

But the plaintiff below is not content with this view. He claims that the court erred in refusing to give as the measure of damages the value of the ties and wood, at the time and place they were delivered to the defendant; thus bringing into review the decision of the commission, as reported in 32 Ohio St. 571. A decision of the commision, which was a court of last resort in this state, equal in authority and dignity with this court, stands as a precedent for our decisions, and should not be overruled except for most cogent reasons.

The question then before the commission, and now before ns, is one of great importance and no little difficulty. Many cases were reviewed by the commission, as will appear from the report, and after consulting those authorities and some others, it is apparent to us that reported cases are at variance at almost every point in the line of reasoning. It is true, that some principles involved are not disputed, and from these and some others that are indisputable, we think the true solution of the question can be obtained. Ye admit as a -general rule, that no man can be deprived of his property without his consent, except by operation of. law. Hence, where his property has been taken from him, not by operation of law, and without his consent, he may follow and reclaim it, in sjpecie, into whose hands soever it may come, so long as he can establish its identity. And in all cases where the owner seeks to reclaim the possession of his property, being able to establish its identity, the fact that accessions to its value have been made by the labor of those who have wrongfully withheld it, cannot be interposed against tlie right of the owner to the possession of his property. And in all such cases it does not matter whether the person from whom it is reclaimed, or - the person who enhanced its value by his labor, was a willful trespasser or a person who came into possession without intentional wrong. A question often arises, whether property by reason of changes wrought upon it, has lost its identity, but no such question is made in this case, as the plaintiff, if he had so elected his remedy, most clearly could have reclaimed the cord-wood and railroad ties from the original trespasser, or from the defendant who purchased them. But no such remedy was sought by the plaintiff.

Another undoubted doctrine of the law is, that a person whose property is wrongfully taken or withheld from him, may waive his right to the property in specie, and elect to pursue a remedy for damages only; and in such case, the general rule for the measure of damages is the value of the property at the time it was taken, or converted by the wrong-doer. The principle upon which this rule of damages is based is, that j ustice requires that the injured party should be made whole; but justice to him requires nothing more. This rule is sometimes modified for the sake of the principle, as where the value of property is subsequently enhanced by an advance in the market price; but the principle, as a matter of legal right, is never departed from. True, the law permits an award of damages in excess of this rule of compensation, when the wrongful act was wanton or otherwise aggravated. But this is permitted by way of punishing the wrong-doer, and for example’s sake. It is not a matter of legal right in the injured party. Eor every wrong done, if it can be redressed in damages, the rule is that the injured party shall have compensatory damages, and if the wrongful act was willful,’ wanton or malicious, punitive damages may also be awarded. Indeed, it appears to me to be axiomatic, that, as between man and man, where no wrong was intended, equal and exact justice is done when the party wronged is made whole for all that he lost by reason of being deprived of property. Upon this principle it is now established by a clear weight of authority, that a person deprived of Ms property by an uMntentionally wrongful act, who seek3 redress in damages, is not entitled to recover from the wrongdoer an increase of damages by reason of accessions to the value of the property from the labor or skill of such wrong-doer. 3 N. Y. 379; 33 Mich. 205 ; 37 Mich. 332; 84 Penn. St. 333; 21 Barb. 92; 81 Ill. 359; 49 Miss. 236; 39 Wis. 456; 7 Up. Can. Q. B. 338; 15 Grant (Up. Can. Ch.), 304; 18 Grant (U. C. Ch.), 7; 13 Com. B. 729 ; 41 Pa. St. 291; 55 Pa. St. 176; 23 Cal. 306; 26 Maine, 306; 3 Ad. & El. (N. S.) 440

Such being the rule in an action against one who takes the property of another and converts it to his own use without intentional wrong, it certainly follows, that in an action against an innocent purchaser from such an unintentional wrong-doer, the measure of damages would not include the enhanced value of the property by reason of the labor of the first taker.

It seems clear, that such purchaser, having been mulcted in damages at the suit of the owner, could not have recourse against his vendor for greater damages than the owner of the property could have claimed against him.

It only remains, therefore, in this line of reasoning, to inquire as to the measure of damages in an action by the owner against an innocent purchaser of the property enhanced by the labor of a willful trespasser. In such case, it is clear that the defendant is not a proper subject of punishment; and it is equally clear, that the plaintiff’s loss is no greater than it would have been, if the trespasser had been innocent of all intentional wrong; nor is the guilt of the defendant greater. Hence, it seems to a majority of the court, that exact justice would be done, as between these parties, by limiting the plaintiff’s damages to the amount of his actual loss, to wit: the value of the trees when they were first taken as personal property.

It is said, however, that the property was the plaintiff’s at the time the defendant received it in its enhanced condition and converted it. This claim is technically correct. But whereby did he become entitled to the enhanced value of the property ? His merit is that of reaping where he did not sow. The party whose labor enhanced the value is the meritorious owner of the increase. True, being a -willful wrong-doer, his interest in the property was subject to forfeiture at the will of the owner by way of punishment and for example’s sake; but the owner has not demanded the forfeiture from the wrongdoer, the demand is made upon an innocent purchaser. There is no suggestion that the purchaser did not exercise ordinary care in making the purchase. If after the purchase the plaintiff had notified the purchaser of his title, and had demanded the possession of the property, we are not prepared to say that a refusal to deliver would not have shown such a willful conversion of the plaintiff’s property as would have entitled him to recover the enhanced value as the true measure of his loss. But that is not the case before us. The plaintiff did not desire to reclaim the property from the defendant. By bringing his action for damages, he voluntarily abandoned his right to the property; and having brought his action against the innocent purchaser, instead of the willful trespasser, we think his damages should be limited to the value of the property when it was taken from his possession.

The suggestion that the rule of damages here adopted will induce purchasers of property to be careless as to the 'title of their vendors, is of little weight. Actual knowledge or willful ignorance of the owner’s rights on the part of the purchaser, would, no doubt, make him liable for the full value at the time of purchase. And, on the other hand, it might be suggested with, at least, equal force, that another rule might make owners negligent in pursuing remedies, until the property, greatly enhanced in value by the labor of others, would come into the hands of innocent, but more responsible persons, than the willful wrong-doer. We see no good reason for overruling the decision of the supreme court commission.

The defendant in error having waived the error of the court below in limiting the damages to the value of the standing trees, the judgment below is affirmed.

Boynton, C. J.

While I concur in the reversal of the judgment upon the ground stated in the opinion, I dissent from the rule of damages laid down by the court as applicable to a case of this character. Upon a thorough search of the decided cases bearing on the subject, I have been unable to' find one that supports the conclusion reached by a majority of the court, except the case between the same parties, and relating to the same conversion, decided by the commission and reported in 32 Ohio St. 571. An examination of the authorities reviewed in that case, and others, has led me to the conclusion that that case was incorrectly decided. The facts conceded are, that willful trespassers felled standing timber or trees growing on land of the defendant’s wards, cut the same into railroad ties and wood, and sold the same to the railroad company, by which the wood was consumed, and the ties placed in the bed of its road before the defendant had knowledge of the facts. That the original trespassers could have obtained no abatement from the value of the wood and ties by reason of the labor bestowed in their production had an action for their conversion been brought against them, is the settled doctrine of all the authorities. So long as the property can be identified the original owner may recover it, in specie, by an action of replevin, or recover its value in its improved state, in an action for its conversion. In Snyder v. Vaux, 2 Rawle, 423, trees were cut and converted into rails and posts ; in Smith v. Gonder, 22 Ga. 353, into railroad ties; in Heard v. James, 49 Miss. 236, into staves; in Halleck v. Mixer, 16 Cal. 574; Moody v. Whitney, 34 Me. 563; and Brewer v. Fleming, 51 Penn. St. 102, into firewood; in Betts v. Lee, 5 Johns. 348; and 9 Johns. 362, into shingles; in Brown v. Sax, 7 Cow. 95, saw-logs into boards; in Eastman v. Harris, 4 La. An. 193, a raft of logs into firewood ; in Riddle v. Driver, 12 Ala. 590, and in Curtis v. Groat, 6 Johns. 169, wood into coal; in Hyde v. Cook, 26 Barb. 592, hides were manufactured into leather; and in Silsbury v. McCoon, 3 N. Y. 379, corn into whisky. There are numerous other cases of similar character, and in all of them it is held, that the title of the original owner is not affected by reason of the fact that the value of the property has been enr hanced by the skill or labor of the wrong-doer, voluntarily bestowed upon it. The same principle is applied to the case of one who voluntarily erects a building on the land of another without his consent. In such case the building becomes a part of the freehold, with no right in the person erecting it to remove it, or to compensation for his labor or materials. 1 Hilliard on Real Prop. 5; Bonney v. Foss, 62 Me. 248 ; Linahan v. Barr, 41 Conn. 471; Mathers v. Dobshwetz, 76 Ill. 438. It is also held, where a party having charge of the property of another, so confounds and confuses it with his own, that the distinction cannot be traced, and the other’s property identified, that the party so mixing and confusing the property, loses his own. The Idaho, 93 U. S. 575; Hart v. Ten Eyck, 2 Johns. Ch. 62, 108 ; 2 Kent Comm. 364 ; Jewett v. Dringer, 30 N. J. Eq. 291 ; Story on Agency, §§ 205, 333, and cases there cited. The principle underlying all these cases, is, that no man shall be deprived of his property without his consent, except upon due process of law. The particular ground upon which the judgment of the court proceeds in the present case is, that because the railroad company was an innocent purchaser of the wood and ties from the original trespasser, a different rule is to- be applied in measuring the damages the owner of the wood is to receive, from that that would prevail had the action been brought against the trespassers themselves. To this position I do not assent. The plain logic of the proposition is that the purchaser acquired by his purchase something which his vendors did not own, and consequently had not the ability to impart. It is admitted that at the moment before the sale the whole property in the wood and ties was in the original owner, but the instant the sale was consummated, it is said, that some part of that property, without his consent, and in a transaction to which he was not a party, has passed to the purchaser; and passed from one who, admittedly, had no title to or lien upon any pari of it. And yet it is agreed that the original owner, by reason of his continued ownership may, in an action of replevin, take the property from the purchaser without accounting to him for any part of its value.

The purchaser’s rights are thus not only made to depend on the form of action, but if the action be brought for conversion of the property, instead of giving damages against the purchaser for Ms conversion, to be measured by tbe value of the property when he converted it, which, of course, was long after the timber was cut into wood and ties, he is made liable as of the date that the trees were cut from the soil, a point of time long anterior to the date of purchase. How this rule would work, or how the liability of the purchaser would be affected, if the wood and. ties when purchased were of less value than the timber when severed from the soil, we are not advised. But if anything is settled by the decided cases, it is, that where one wrongfully in possession of the property of another, refuses to deliver it to the owner on demand, he is liable in conversion to the full value of the property at the time of the refusal. Not that demand and refusal are necessary prerequisites to the action, but when they appear, they as a general rule settle the fact and time of conversion. Gilman v. Newton, 9 Allen, 171. The conversion, however, is just as complete, and the time at which the liability therefor is incurred, is as definitely fixed and ascertained, when the property is consumed or destroyed, or has been converted into realty, as in the case of demand and refusal. The unauthorized act of another in assuming dominion and control over the property by which the rightful owner is deprived thereof, is conversion. Pease v. Smith, 61 N. Y. 477. Hence, when the wood and ties in the present case were used by the company, they were as liable for their conversion as if demand and refusal had been made while it was in the company’s power to deliver the same to the owner, and liable for the amount recoverable had demand and refusal been made upon the day the company purchased the property from the original takers. And if demand and refusal had then been made, and the company had refused to deliver the property to the owner, I know of no rule of law, that would relieve it from liability to damages for the full value of the property.at the time of refusal. If such is not the rule, what results 2 When the purchaser is required to pay the real owner for the property, he may recover back the price paid to the wrong-doer, as upon a failure of. consideration. This principle is well settled. Eichholtz v. Banister, 17 C. B. (N. S.) 708; Chapman v. Speller, 14 Q. B. 621; Benj. on Sales, § 423. The company would therefore get the wood aud ties by paying the original owner the value of the timber when felled to the ground. Either this results or the absurdity follows, that while the original trespasser had neither title to, nor lien upon, the wood or ties, he 'is enabled, in an action for the price paid by the purchaser, to recoup the amount which his labor added to the value of the property. He would thus gain and accomplish by the sale, what otherwise, he could not have obtained.

The principle that the purchaser in such case, however innocent, sustains no better relation to the property than did the party from whom he purchased it, is well supported by authority.

In Silsbury v. McCoon, supra, it was said by Ruggles, J., that “ the thief who steals a chattel, or the trespasser who takes it by force, acquires no title by such wrongful taking. The subsequent possession by the thief or trespasser is a continuing trespass; and if during the continuance the wrong-doer enhances the value of the chattel by labor and skill bestowed upon it, as by sawing logs into boards, splitting timber into rails, making leather into shoes, or iron into bars, or into a tool, the manufactured article still belongs to the owner of the original material, and he may retake it, or recover its improved value in an action for damages. And if the wrong-doer sells the chattel to an honest purchaser having no notice of the fraud by which it was acquired, the purchaser obtains no title from the trespasser, because the trespasser had none to give. The owner of the original may still retake it in its improved state, or he may recover its improved value. The right to the improved value in damages is a consequence of the continued ownership. It would be absurd to say that the original owner may take the thing by an action of replevin in its improved state, and yet that he may not, if put to his action of trespass or trover, recover* its improved value in damages.” ' This doctrine was adherred to in Joslin v. Cowell, 60 Barb. 48, where it was said: “It is only innocent purchasers who purchase property concerted into another species, that can be protected, and not even the innocent purchaser is so protected who takes the title from a trespasser or wrong-doer, because he had none to give.”

The case of Tuttle v. White, recently decided by the supreme court of Michigan, and reported in volume. 9 of the Northwestern Reporter, p. 528, is quite in point.

The action was in trover for the conversion of certain saw logs. The defendant purchased the logs in good faith, from parties who wrongfully cut them upon the land of the plaintiff. The court, in disposing of the ease, said: “ A person in purchasing personal property runs his risk as to the title he is acquiring, and if he is unfortunate enough to purchase from a trespasser, or one who has no title and can give none, he must suffer the loss or look to his vendor.” The plaintiff was held entitled to the value óf the logs at the time the defendant purchased and assumed control over them. To same effect is Nesbit v. St. Paul Lumber Co., 21 Minn. 491.

These eases are in accord with the large and uniform current of authority which holds that in purchasing personal property, the purchaser must abide by the title of his vendor, and can acquire no better right than he possessed.

White, J., concurred in the dissenting opinion.

This case was decided before Longworth, J., came • on the bench.


source: Caselaw Access Project

author: Boynton, C. J. Okey, J.

license: Public Domain

text:
    Telegraph Company v. Griswold.
    1. While a telegraph company may, by special agreement, or by reasonable rules and regulations, limit its liability to damages for errors or mistakes in the transmission and delivery of messages, it cannot stipulate, or provide, for immunity from liability, where the error, or mistake, results from its own negligence. Such a stipulation, or regulation, being contrary to public policy, is void.

      2. Where, in an action against the company for damages resulting from an inaccurate transmission of a message, such inaccuracy is made to appear, the burden of proof is on the company to show that the mistake was not attributable to its fault or negligence.
    8. The plaintiffs’ agent sent to them from Woodstock, Ontario, a message in these words:—“ Will you give one fifty for twenty-five hundred at London. Answer at once, as I have only till night.” The court instructed the jury that the message was not in cipher or obscure, within the meaning of a stipulation in the agreement under which the message was sent, that the company “ assumed no liability for errors in cipher or obscure messages.” Held, that the instruction was correct.
    Error to the Court of Common Pleas of Cuyahoga County, reserved in the District Court.
    The defendants in error, Griswold & Dunham, dealers in flaxseed, and manufacturers of linseed oil, at Cleveland, brought an action against the plaintiff in error. The Western Union Telegraph Company, in November, 1872, to recover damages for the negligent transmission of a dispatch from Buffalo to Cleveland, sent by the .defendants’ agent, S. W.' Cowpland, from Woodstock, Ontario, upon which the defendants acted, and by reason of which negligence they suffered damages to the alleged amount of $1,163.70, for which sum, with interest thereon from December 23,1871 they prayed judgment. The dispatch sent was as follows:
    “ Woodstock, Ontario, December 23d, 1871.
    “ Messrs. Grisioold c§ Dunham,,
    “Will you give one fifty for twenty-five hundred at London. Answer at once, as I have only till night.
    “ S. W. Cqwpland.”
    The dispatch as intended by Cowpland and understood by Griswold & Dunham, meant to inquire, whether the latter would pay one dollar and fifty cents in gold for twenty-five hundred bushels of flaxseed, at London, Ontario, the parties having had a prior correspondence in reference to the purchase of flaxseed in Canada. The dispatch was sent from Woodstock to Buffalo, over the lines of the Montreal Telegraph Company, and thence to Cleveland over the lines of the plaintiff in error.
    The dispatch delivered to Griswold & Dunham at Cleveland was as follows:

      "Woodstock, Ontario, December 23d, 1871.
    “ To Griswold & Dunham,

    “"Will you give one five for twenty-five hundred at Don-don. Answer at once, as I have only till night.

      “ S. M. Cowpland.”
    To this dispatch they made the following reply:
    “ Cleveland, Ohio, December 23d, 1871.
    “ S. M. Qowplcmd Wooclstoch, Ontario,

    “Yes, if seed is prime, and we can hold at London until spring. “ Griswold & Dunham.”
    Upon the receipt of this message Cowpland purchased for the defendant 2,407 bushels of flaxseed at $1.45 per bushel, and on January 22, 1872, shipped the same to Cleveland via Detroit. The answer of the plaintiffs in error denied the allegation of negligence charged, and set up the fact, that the dispatch was sent from Woodstock under a special agreement with the Montreal Telegraph Company which was as follows :
    “ MONTREAL TELEGRAPH COMPANY, FORM NO. 2.
    “ (Terms and conditions on which this and all other messages are received by this Company.)
    “ In order to guard against, and correct as much as possible some of the errors arising from atmospheric and other causes appertaining to telegraphy, every important message should be repeated, by being sent back from the station at which the message is received to the station from which it is originally sent. Half the usual price will be charged for repeating the message, and while this company in good faith will endeavor to send messages correctly and promptly, it will not be responsible for errors or delays, in the transmission or delivery, nor the non-delivery of repeated messages beyond two hundred times the sum paid for sending the messages, unless special agreement for insurance be made in writing, and the amount of risk specified on this agreement and paid at the time of sending the message, nor will the company be responsible for any error or delay in the transmission or delivery, or for the nondelivery of any unrepeated message, beyond the amount paid for sending the same, unless in like manner specially insured, and amount of risk stated therein, and paid for at the time. No liability is assumed for errors in cipher or obscure messages, nor is any liability assumed by this company for any error or neglect by any other company over whose lines this message may be sent to reach its destination, and this company is hereby made the agent of the sender of this message to forward it oyer the lines extending beyond those of this company. No agent or employee is allowed to vary these terms, or make any other verbal agreement, nor any promise at the time of performance, and ho one but a superintendent is authorized to make a special agreement for insurance. These terms apply through the whole course of this message on all lines by which it may be transmitted. “ (Signed,) James Dakers,
    Secretary.
    “ (Signed,) Hugh: Allen, President.
    “‘Send the following message without repeating it, subject to the above conditions. Time received, December 23d, 1871:’ • .
    “ ‘ To Messrs. Griswold <£¡ Dunham, Olevela/nd, O.:

    ‘“Will you give one fifty for twenty-five hundred at London. Answer at once, as I have only till night.
    (Signed,) “‘S. W. Oowpland.’” '
    It appeared from an answer to an interrogatory annexed to the plaintiff’s reply, made by the superintendent of the telegraph company, that he had caused inquiry and search to be made for the original message received by the company at Buffalo, and that the same could not be found.
    The court, among other things, charged the jury, in substance, as follows:
    That if the message delivered to the defendant below by the Montreal company, was the same as the one delivered to it at Woodstock, and the mistake occurred in transmitting the same over the line of the defendant below, from Buffalo to Cleveland, and such mistake occurred through the carelessness and negligence of the defendant, the special agreement set up in the answer did not relieve the company from liability otherwise resulting from such negligence.
    The court also charged the jury, that the delivery of the message to the plaintiffs differing from that received by the company was evidence of negligence, and left it to them to determine whether such evidence was sufficient to establish the fact of negligence.
    The court further charged, that while the clause in the special agreement set up in the answer exonerating the company from liability “ for errors in cipher or obscure messages,” was valid, the message was not obscure nor in cipher, within the meaning of that stipulation.
    To these several points of the charge, and for refusing to give their converse to the jury, the defendant below excepted. Yerdict and judgment for the plaintiffs below for $1,290.61. On error to the district court the cause was reserved for decision by this court.

      JR. P. Panney, for plaintiff in error:
    The imputation of negligence, as well as every specific fact upon which it was founded, were denied in the answer, and the primary question arising is—whether the plaintiffs below proved all the material facts so averred, and indispensable to their right of action. It is not claimed that any liability of this company commenced until it received at Buffalo, a written despatch from the Canada company, nor that it was guilty of any other negligence than that of failing to transmit and deliver at Cleveland the dispatch which it received at Buffalo. And the only mistake pretended is the substitution of the word “ five” for “ fifty.” All this is very correctly and perspicuously stated in the charge. What evidence, then, did the plaintiffs give that the dispatch received at Buffalo was not correctly transmitted and delivered to the plaintiffs at Cleveland ? Not a Single person connected with the transmission and delivery of this dispatch, in either of the four offices through which it passed, was examined as a witness ; and no original paper or entry in either of them, save the dispatch delivered here, was given in evidence at the trial. All the evidence given upon this point was that of Cowpland, tending to show how the dispatch was worded, and the dispatch itself as delivered to the plaintiffs. There was not one word given tending to show that the dispatch delivered was not identical with that delivered to the defendant at Buffalo. It is, therefore, quite as likely that the mistake originated in his, Cowpland’s, writing as with any of the employees of either company. But suppose his recollection to be infallible, and it supervened after he delivered the message to the operator at Woodstock. Where did it come in, and who is responsible for it ? Is there any presumption, or any reason for supposing, that the employees of the Canadian company were more reliable or less liable to make mistakes than those of the American company \ And if such a supposition would be inadmissible and ridiculous, how was it proved that the mistake was, in fact, made by the latter company ? The charge of the court upon this point, in effect resolved the jury into a guessing school, and shifting the responsibility of performing that function from the body that gives reasons for its conclusions, to one that gives none. It is the one prolific source fx’om which proceeds so much uncertainty in the resxxlts of litigation, and so much perversion of established laws and the rights of parties; and it is certainly remarkable that such a pernicious practice should continue to be indulged in after the explicit condemnation it has received in this court and the supreme court of the United States. See Bain v. Wilson, 10 Ohio St. 17; 3 Graham & Waterman on N. T. 824; Jones v. Eason, 2 Iredell, 331; Bovard v. Christy, 2 Harris (Penn.) 267; Bathune v. McCrary, 8 Geo. 114; 1 Dana, 155, 273 ; Fay v. Grimstead, 10 Barb. 321; Railroad Co. v. Picksley, 24 Ohio St. 669; Walker v. Stetson, 14 Ohio St. 90; United States v. Brietling, 20 How. 254; Bank v. Eldred, 9 Wall. 553 ; Insurance Co. v. Baring, 20 Wall. 161; Pleasants v. Faut, 22 Wall. 116. Now, as it stands conceded by the court that the plaintiffs must px-ove that the dispatch delivered at Cleveland differed fi’orn the one received from the other telegraph company at Buffalo, and by both court and counsel that no direct proof was given of the wording of the dispatch received at Buffalo to show any mistake in that delivered at Cleveland, it is readily seen upon what alone the jury were set to finding the fact of the mistake and the negligence of the defendant in making it. Upon the evidence tending to prove that the dispatch delivered at Cleveland differed from that delivered to the Montreal company at Woodstock, and consequently, that a mistake had somewhere intervened, the jury were instructed, that it was not only competent evidence, but, if “ satisfactory” to them, might be “ sufficient ” evidence to prove that the dispatch delivered was variant from that received by the defendant, and negligence in the defendant in transmitting and delivering at Cleveland. The claim which the court thus affirmed, and made the basis of its charge, and called upon the jury to consider whether it proved negligence or not, was that, at the commencement of the suit, three and a half years before the trial, the defendant had evidence in its possession, which, if produced, “ would either exonerate the defendant from the imputation or charge of negligence, or establish it against the defendant conclusively;” which had since been destroyed by the defendant, which “furnishes a presumption against the defendant or his evidence” to be considered in determining whether there was or was not negligence in the particular charged against the defendant. That is, there had been a medicine, which, if taken, would either kill or cure; and as the defendant had-not preserved it so that the experiment could be made, the presumption should be now made that it would have killed the defendant and cured the plaintiffs.
    II. But for the practical importance of the question I have been considering, I must confess to need an excuse for pursuing it at such length with any view to the necessities of this case. Unless-I completely misunderstand the law arising upon the uncontroverted facts found in this record, the case might be rested wholly upon the proposition which I now proceed to present. If a mistake did intervene, and it was due to the negligen ce of some employee of the defendant—ye t, it was discovered before any injury to the plaintiffs ensued, and if they after-wards suffered any damage, it was wholly due to their own fault. Upon the state of evidence, although uncontradicted, and wholly drawn from the witnesses and documents introduced by the plaintiffs themselves, it is very evident that this part of the case depended upon two well settled principles of law which were wholly ignored at the trial. First, if the negligence was established, resulting in a breach of the contract to transmit the message correctly, the damages to be recovered, in the absence of evidence showing a wanton disregard of duty, would be only such as directly and immediately flowed from the wrongful act; and as soon as the mistake was known to the plaintiffs, they owed a positive duty to the defendant to do _ everything prudent and necessary to make them as small as possible. Lowry v. W. U. Tel. Co., 60 N. Y. 198. This principle is too familiar to require or justify any elaboration.
    Second, notice of the mistake to Cowpland, the plaintiff’s agent, was notice to them, and every step afterwards taken from which further losses resulted, tfas taken in disregard of their duty, and are too remote to be recovered of the defendant. Perhaps no rule of the law of agency is better understood, or more universally applied, than that which charges the principal with notice of everything known to his agent within the scope of his employment. Story on Agency, § 140; Ins. Co. v. Eshleman, 30 Ohio St. 656 ; Hoover v. Wise, 91 U. S. 310; Smith v. Ayer, 101 U. S. 325; The Distilled Spirits, 11 Wall. 356.
    III. The court erred in its instructions to the jury that the special agreement under which the message was -sent did not relieve the company from liability for the damages resulting fi’om its inaccurate transmission. Grinnell v. Telegraph Co., 113 Mass. 299; Bank v. Telegraph Co., 30 Ohio St. 555.

      Prentiss & Vorce, for defendants in error:

      J. The telegraph company could not be relieved from liability for negligence by special contract. Bartlett v. Tel. Co., 62 Me. 209; Tyler v. Tel. Co., 60 Ill. 421; 27 Iowa, 433; 41 Id. 458 ; 33 Wis. 558 ; 34 Id. 471; 35 Penn. St. 298; 1 Col. 230; 60 Me. 21; Graham v. Davis, 4 Ohio St. 362; 2 Ohio St. 131; 48 N. Y. 132.
    II. The burden of showing that the mistake was not negligence was on the telegraph company. 60 Ill. 421; 44 N. Y. 263; 15 Mich. 525; 62 Me. 209; Sherman & Redfield on Neg. § 559.
    III. The charge of the court that the message was not obscure was right. 60 Ill. 421; U. S. Tel. Co. v. Wenger, 35 Pa. St. 262; 62 Me. 221.
   Boynton, C. J.

As we have reached the .conclusion that the court below did not err in denying the motion for a new trial founded on the alleged insufficiency of the evidence to sustain the verdict, and as a review of the evidence would serve no useful purpose, it only remains to consider whether the court erred in the instructions given to the jury. The first question arises on the exception to that portion of the charge by which the jury were told that the special agreement under which the message was sent did not relieve the company from liability for the damages resulting from the inaccurate transmission of the message, if the mistake or error occurred through the negligence of the company or its agents. There seems to be a want of harmony in the decided cases on the point of the correctness of this instruction, and this no doubt arises, in some measure at least, from the different views taken of the natm’e of the employment in which telegraph companies are engaged, and to some extent from.different views taken of their rights and liabilities by courts who fully agree upon the nature of such employment, but differ as to the extent of the duties and obligations that spring therefrom. In Parks v. Alta California Tel. Co., 13 Cal. 422, the obligations of telegraph companies were held to be the same as those of common carriers, and consequently that they were, in effect, insurers of the safe transmission of a message, unless the transmission was 'interfered with by the act of God or the public enemies. An early case in England held the same doctrine. McAndrew v. Electric Tel. Co., 33 Eng. L. & Eq. 180. But the weight of authority both English and American is clearly the other way. Ellis v. American Tel. Co., 63 Allen, 226 ; Leonard v. New York, &c. Tel. Co., 41 N. Y. 544; Breese v. United States Tel. Co., 48 N. Y. 132; New York, &c. Tel. Co. v. Dryburg, 35 Penn. St. 298 ; Bartlett v. Western Union Tel. Co., 62 Me. 209 ; Birney v. New York, &c. Tel. Co., 18 Md. 341; Grinnell v. Western Union Tel. Co., 113 Mass. 299.

But that telegraph companies exercise a quasi public employment with duties and obligations analogous to those of a common carrier, is a proposition clearly settled. The statute confers upon them power of eminent domain, which no one will contend could be conferred upon, them, consistently with the constitution, if they were engaged in a mere private employment or occupation by which the public interests were not affected.

They are required to receive dispatches from individuals or corporations, including other telegraph companies, and to transmit and deliver the same faithfully and impartially in the order received, except in a few specified cases, where from public considerations certain preferences may be made. S. & S. 155. These provisions, as well as the nature of the employment itself, are entirely inconsistent with the theory that the business' of conducting aline of telegraph is a mere private employment as distinguished from one carried on for the benefit of the public at large. Granting this, it is, however, contended that because the company is not an insurer of the safe transmission of a message, and is authorized to make or adopt such regulations and by-laws for the management of the business as it may deem proper (l S. & S. 298, § 46), it cannot be made liable to the plaintiff below, beyond the amount paid for sending the message, in the face of the stipulation against liability for any error in an Unrepeated message, notwithstanding such error resulted from the negligence of the company’s agents by whom the message was sent over its wires. To this proposition we do not agree. It has long been the settled law of this State, that a common carrier cannot, either by special agreement with,’ or by notice brought home to the shipper, relieve himself from liability for the consequences of his negligence. Davidson v. Graham, 2 Ohio St. 131; Railroad Company v. Curran, 19 Ohio St. 1.

In Graham v. Davis, 4 Ohio St. 377,—a case involving the liability of a common carrier who claimed exemption therefrom by reason of a special contract with the shipper,—it was said that “ one of the strongest motives for the faithful perform anee of a public duty, is found in the pecuniary responsibility which the carrier incurs for its failure. It induces him to furnishsafe and suitable equipments, and to employ careful and competent agents. A contract, therefore, with one to relieve him from any part of this responsibility reaches beyond the person with whom he contracts, and affects all who place their persons or property in his custody. It is immoral because it diminishes the motive for the performance of a high moral duty; and it is against public policy, because it takes from the public a part of the security they would otherwise have.”

These considerations,—there referred to common carriers,— apply with equal force to those who furnish the means of telegraphic communication to the public. Their employment is not only public in its nature, but it has become a necessity alike to the social and commercial world.

Hence, it is as true of them, as of common carriers, that any stipulation, or regulation that authorizes or enables them to secure exemption from liability for negligence, in the transmission or delivery of the message, reaches far beyond the person with whom they are dealing, and for whom the immediate service is being performed, and affects the entire public. The cases which' hold that a common carrier may stipulate for immunity from liability for mere negligence, all agree that they are liable for “gi’oss negligence.” But just what this term means is not easily ascertained. There is authority for holding it to be equivalent to fraud or intentional wrong. Jones on Bailm. 8-46 et sep But a majority of the cases would seem to hold it to be a failure to exercise ordinary care. In Wilson v. Brett, 11 Mees. & W. 113, it was said by Baron Rolfe, that he could see no difference between gross negligence and negligence ; that it was the same thing with a vituperative epithet.” In Hinton v. Dibbin, 2 Ad. & El. (N. S.) 644, Lord Denman remarked, that “ when we find gross negligence made the criterion to determine the liability of a common carrier who has given the usual notice, it might perhaps have been reasonably expected that something like a definite meaning should have been given to the expression. It is believed, however, that in none of the numerous eases upon this subject is any such attempt made, and it may well be doubted whether between gross negligence and negligence merely, any intelligible distinction exists.” See also Beal v. South Devon By. Co., 3 II. & 0. 337; Austin v. Manchester By. Co., 11 Eng. L. & Eq. 513; and comments of Parke, B., in Wyld v. Pickford, 8 M. & W. M3. In Duffy. Budd, 3 Brod. ■& Bing. 177, it was held by Dallas, Ch. J., that “gross negligence is where the defendant or his servants have not taken the same care of the property as a> prudent man would take of his own.” And by Best, J., in Batson v. Denovan, 4 Barn. & Aid. 21, that they must take as much care of it as a prudent man does of his own property.”

In Grill v. General Iron Screw Collier Company., L. R. 1 C. P. 600, gross negligence was held to be a relative term and meant “ the absence of the care that was requisite under the circumstances.” It was the absence of such care as it was the duty of the defendant to use in the circumstances of the case.

In Beal v. South Devon Ry. Co., supra, it was held in the case of a carrier that “ gross negligence includes the want of that reasonable care, skill, and expedition which may properly be expected of him,” Crompton, J., remarking, that “ for all practical purposes, the rule may be stated to be that failure to exercise reasonable care, skill and diligence, is gross negligence.” To the same effect is Briggs v. Taylor, 28 Vt. 181, and Shearm. & Redf. on Neg. § 16; all substantially agreeing with Willes, J., in Lord v. Midland Railway Co., L. R. 3 C. P. 344, that “ any negligence is gross in one who undertakes a duty and fails to perform it.” See, also, Griffith v. Zipperwick, 28 Ohio St. 388 ; and Pennsylvania Co. v. Miller, 35 Ohio St. 549.

These authorities show a strong tendency in the adjudications to break down the impracticable distinction between what is termed gross negligence, and ordinary negligence, which some of the cases hold to exist. The rule, however, in this state is well settled, that one exercising a public employment is liable for failing to bring to the service he undertakes, that degree of skill and care, which a careful and prudent man would, under the circumstances, employ ; and that any stipulation or regulation by which he undertakes to relieve himself from the duty to exercise such skill and care in the performance of the service, is contrary to public policy, and consequently illegal and void. In our opinion telegraph companies fall within the operation of this rule ; and that in failing to exercise such care and skill in the transmission and delivery of messages, they become liable for the resulting consequences, notwithstanding their stipulation to the contrary. The right to make rules and regulations to govern the management of their business is expressly conferred by statute. But such rules must be reasonable, and if they fail to accord with the demands of a sound public policy they are void. Railroad Co. v. Lockwood, 17 Wall. 357 ; 21 Wall. 267.

We are also of the opinion that the failure to transmit and deliver the message in the form or language in which it was received, is prima faeie negligence, for which the company is liable; and' that to exonerate itself from the liability thus presumptively arising, it must show that the mistake was not attributable to its fault or negligence. This rule not only rests upon sound reason, but is well sustained by well considered cases. Bartlett v. Western Union Ted. Co., 62 Me. 209; Rittenhouse v. Independent Line of Telegraph, 44 N. Y. 263; Tyler, &c. v. W. U. Tel. Co., 60 Ill. 421; Baldwin v. U. S. Tel. Co., 45 N. Y. 744; W. U. Tel. Co. v. Carew, 15 Mich. 525; De La Grange v. S. W. Tel. Co., 25 La. An. 383; W. U. Tel. Co. v. Meek, 49 Ind. 53; Turner v. Hawkeye Tel. Co., 41 Iowa, 458.

If the error or mistake is attributable to atmospheric causes or disturbances, or to any cause for which the company is not at fault, it is entirely within its power to show it. To require the sender of the message to establish the particular act of negligence, or ferret out the particular locality where the negligent act occurred, after showing the mistake itself, would be to require in many cases, an impossibility, not infrequently resulting in enabling the company to evade a just liability. We are further of the opinion, that the court did not err in holding, and so instructing the jury, that the message received by the company for transmission was not obscure within the meaning of the stipulation in the agreement under which the message was sent. It appeared upon its face that it related to a business transaction, a transaction involving the purchase and sale of property. The company was therefore apprised of the fact that a pecuniary loss might result from an incorrect transmission of the message. "Where this appears, there is no such obscurity as relieves the company from liability for negligently failing to transmit and deliver the message in the language in which it was received. Western Union Tel. Co. v. Wenger, 55 Penn. St. 262; Rittenhouse v. Independent Line of Tel., 44 N. Y. 265; Manville v. W. U. Tel. Co., 37 Iowa, 220.

Judgment affirmed.

Okey, J.

The view taken of this case in the opinion of the chief justice is, in my judgment, wrong. In the argument for the plaintiff in error in this court, a reversal of the judgment in the court below is sought upon three grounds only. First: It was not shown that the defendant below failed to correctly transmit the message received, and therefore a new trial should have been granted. Second: The verdict is not supported by sufficient evidence, in that the damages are excessive. Third: The court erred in the charge with respect to the special contract.

I will briefly consider these alleged grounds of error, but not in the order they are discussed by counsel.

As to the special contract with respect to the message, set forth in the statement of the case. The contract, though made in Canada, with the Montreal Telegraph Company, applies in terms “ through the whole course of this message on all the lines by which it may be transmitted.” The statutes of this state (S. & S. 155, § 137; 1 S. & C. 298 ; Rev. Stats. § 3462), conferring power on telegraph companies to make rules and regulations, are the same as in Massachusetts and other states, and, according to the construction placed thereon, in several states, the stipulations in the special contract in this case are, with a single exception, such as telegraph companies may lawfully make. Grinnell v. Telegraph Co., 113 Mass. 299; 30 Ohio St. 557.

I am entirely satisfied with GrmnelVs case; and in asserting a principle inconsistent with it, this court is opposed by the clear weight of authority. 2 Thompson on Neg. 841. But by the contract relied on in this case, a special agreement could only be made with the superintendent of the company. To require that one desiring to make such special agreement, shall hunt up the superintendent, is unreasonable, and renders the regulation wholly void. Tyler v. Telegraph Co., 60 Ill. 421-438; affirmed, 74 Ill. 168.

Did the plaintiff in error fail to correctly transmit and deliver the message ? The answer amounts to a general denial ; at least, it was so regarded by both parties during the trial; and although, during the charge, the plaintiffs below suggested that certain allegations in the petition were not denied, the court said to the jury that this was a mistake, and that the jury must regard all allegations in the petition as denied. Whether this was strictly accurate or not, we should, under'the circumstances, on the hearing of this petition in error, regard the answer in the same way.

The court charged the jury that the burden was on Griswold & Dunham to show negligence. If that charge was correct, the verdict was wrong; for negligence was not proved. The destruction of the original message by the telegraph companies, and two or three other facts relied on to show such negligence, are wholly insufficient to show any negligence whatever. But the charge was not correct. Where suit is brought for a loss of goods against the last of several connecting common carriers, the burden is on such last carrier, on proof that the goods were lost or injured in transit, to show that the loss did not occur on his part of the line. Laughlin v. Railroad, 28 Wis. 204; Dixon v. Railroad, 74 N. C. 538; Smith v. Railroad, 43 Barb. 225 ; affirmed, 41 N. Y. 620 ; 2 Daly, 463; Brintmall v. Railroad, 32 Vt. 665. The same principle has been applied, and I think properly applied, in the case of connecting telegraph companies. De La Grange v. Telegraph Co., 25 La. Ann. 383. The burden to show by evidence, that the .mistake in this case was not the result of negligence on the part of the agents of the plaintiff in error—the proof showing that the message received by the defendants in error, was not the same as when delivered to the Montreal Telegraph Company— rested, therefore, upon the plaintiff in error; but it offered no such proof.

Were the damages excessive? Cowpland was the agent of Griswold & Dunham to purchase and pay for the seed in Canada, and he was to be paid for his services by them. This is so stated in the petition, and shown by the evidence. Cowpland testifies that he did not know any mistake in the message had been made until January 30, 1872, which was after Griswold & Dunham had sustained all the injury of which they complain. But if there is a fact clearer than all others in the case, it is that Cowpland ascertained the mistake January 5, 1872. About this there can be no sort of doubt. Now, on January 5, Cowpland had not received or paid for a bushel of the seed, and besides the seed was then worth at London, Canada, one dollar and forty-five cents per bushel. He had it in his power, therefore, to prevent the larger part, if not all the loss sustained by his principals, which loss they are now shifting upon the telegraph company. This can be justified neither in morals nor law. Notice to Cowpland on January 5, 1872, was notice to Griswold & Dunham. Wade on Notice, § 672 et seq. And see 2 Thompson on Neg. 858. I am of opinion, therefore, that a new trial should have been granted, upon the ground that the damages were excessive.

This case was decided before Longworth, J., came on the bench.


author: Boynton, C. J.

text:
    Van Fossen v. The State.
    A decree of divorce under a statute of another state authorizing a divorce between husband and wife, neither of whom is domiciled therein, is of no force or effect in this state where the parties have their domicile.
    Error to the Court of Common Pleas of Muskingum County.

      Evans & Evans and Charles A. Beard, for plaintiffs in error,
    contended that the decree of the Colorado court was valid and absolved the plaintiff from all obligations arising out of the first marriage. Art. 4, see. 1, U. S. Const. If the offense for which the divorce was granted in Colorado, was committed in that state, by its constitution and laws its court had jurisdiction of the subject matter, and if the parties voluntarily appeared there, jurisdiction of the parties was obtained. The Colorado court finds that the cause of complaint arose in that state. This is a fact which that court, and that court alone, was competent to decide, and its finding must be conclusive.
    The commission of the act of adultery in the state of Colorado would of itself give the Colorado court jurisdiction. Art. 4, sec. 2, U. S. Const.; and see Colorado Const.
    The parties are proved to be citizens of Ohio, and are entitled to the privileges and immunities of citizens of Colorado— protection to their rights, and redress for their wrongs. Now, as citizens of one of the several states, if a cause of action arises in any state, the citizens are entitled to relief in the state wherein the cause arises. In this case, it is alleged that the cause of action arose in Colorado, and the said court of Colorado has found that allegation to be true. May they not grant relief ? By the provisions of our constitution, they are citizens of the state in which they may happen to be, and entitled to all the rights and remedies that any other citizen of that state may have. In this case, or in a case of this kind, if a citizen of Colorado might or would be entitled to relief, so would a citizen of Ohio, and state lines are, in such case, no more than county lines; all are lost sight of in the sovereignty of the constitution. The citizenship is not limited or circumscribed, except by the boundaries of the United States. If the constitution and laws of Colorado authorize this divorce, how is it possible for the courts of another state to call in question any proceeding under such constitution and law ?
    We insist that the action of a court apparently in conformity with the constitution and laws of its state, can only be reviewed and corrected by a superior court, provided by such constitution and laws, and until that is done such decree is binding the world over. See Hunt v. Hunt, 72 N. Y. 217 ; 28 Am. R. 129.

      George K. Hash, attorney-general,
    for the state, relied on People v. Harrell, 25 Mich. 247; and cited 2 Bishop on Mar. & Div. (6th ed.) § 199 ; Cooley’s Const. Lim. 502; Sewell v. Sewell, 122 Mass. 156; Commonwealth v. Blood, 97 Mass. 538 ; Hoffman v. Hoffman, 46 N. Y. 30.
   Boynton, C. J.

The plaintiff in error was tried and con-rioted of bigamy, in the court of common pleas of Muskingum county, at its May term of the pi’esent year, and sentenced to the penitentiary. The state gave evidence at the trial, tending to show that in March, 1850, the accused was married to Lydia J. Fowler, who was still living, and that, on the 18th day of January, 1881, at said county, he intermarried with one Louisa Williams. The defendant offered in evidence what purported to be a record of a decree of divorce, granted by the county court of Larimer county, Colorado, by which it appeared that in an action apparently brought by the said Lydia J., she was divorced from the defendant at the December term of said county court in 1880, for some marital offense alleged and found to have been committed within that state.

He also offered in evidence, a copy of the General Laws of Colorado, by which a year’s residence was required by the party applying for a divorce, unless the marital offense was committed within the state, or while one or both of the parties resided therein.

In reply to this evidence the state offered testimony tending to show that at the time said decree of divorce was granted, as well as at the time the action therefor was commenced, and for many years before, the defendant and his wife, Lydia J., were both residents of and domiciled in Ohio; and that neither of them had ever acquired a domicil in Colorado. Whereupon the court charged the jury, that if they found that neither the husband nor wife was domiciled in Colorado when the action for divorce was instituted or prosecuted, but that both were then domiciled in Ohio, the decree of the Colorado court was void or inoperative beyond the limits of that state. The question to be decided arises upon an exception to this instruction.

We think the instruction was correct.

The courts of one state have no jurisdiction over any marital offense, or cause of divorce, wherever arising, unless one of the parties has an actual dona fide domicil within the state. 2 Bishop on Mar. & Div. § 144; Cox v. Cox, 19 Ohio S. 502. Nor does it alter the case that the alleged marital offense was committed within the state where the divorce is sought, or that the parties submit to its jurisdiction.

What is wanting in such case is jurisdiction over the subject matter. Marriage is a status exclusively regulated and controlled by the laws of the state where the relation exists. Cheever v. Wilson, 9 Wall. 108.

It is upon this status that the decree of the court operates. If the courts of one state can dissolve the marriage relation of parties both of whom are domiciled in another, for an act or offense committed while the parties were temporarily within the former state, they could as well be clothed with jurisdiction to divorce parties for an act or offense, wherever committed, provided the defendant could be found and summoned within their jurisdiction.

The doctrine is, however, well settled, and is founded upon the most obvious considerations of public policy, that the law of the place of the .actual domicil, where both parties dwell within the same jurisdiction, governs not only as to the causes or grounds of divorce, but as to the tribunals in which the action therefor may be prosecuted. Story on Confl. Laws, § 230 a; Strader v. Graham, 10 How. 82, 93.

It is true that courts may be authorized to take jurisdiction where either of the parties is domiciled within the state; and a wife may acquire a domicil different from that of her husband whenever it is necessary or proper that she should have such separate domicil, and away from the domicil of marriage, or the place or state where the marital offense was committed. Cheever v. Wilson, supra; Bishop on Mar. & Div. § 128, a.

But it is held by numerous cases, and may be regarded as settled law, that a decree of divorce granted by another state in which neither of the parties was domiciled, is, beyond the limits of such state, a nullity. Sewell v. Sewell, 122 Mass. 156; Hoffman v. Hoffman, 46 N. Y. 30 ; Hood v. State, 56 Ind. 263 ; People v. Dowell, 25 Mich. 247; Litowich v. Litowich, 19 Kans. 451.

It is, however, said in argument, that the clause of the constitution of the United States requiring full faith and credit to be “given in each state to the public acts, records, and judicial proceedings of every other state” saves the Colorado decree from impeachment, and requires full force and effect to be given to it. This result quite likely would follow, if the Colorado court had acquired jurisdiction of both the parties and the subject matter of the action. But where jurisdiction is not acquired—a fact always open to inquiry, although the ree- or recite the facts necessary to give the same—the judgment is void, and the provision of the constitution has no effect upon it. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas Light & Coke Co., 19 Wall. 58; Price v. Ward, 25 N. J. Law, 225; Kerr v. Kerr, 41 N. Y. 272; Carleton v. Bickford, 13 Gray, 591; Folger v. Columbian Ins. Co., 99 Mass. 267, 273.

The jurisdiction of the court granting the decree was therefore open to inquiry, and the jury having found neither party to the decree to have been domiciled in the state where the same was rendered, it was entirely void beyond its territorial

Judgment affirmed.

This case was decided before Longworth, J., came oh the bench.