author: Crew, J.

text:
    Miller v. The Baltimore & Ohio Southwestern Railroad Company.

      Action for negligence — Party liable only for proximate results of act — Unforeseen injury — Not -actionable — No liability for fright or shock, when.

    1. In an action to recover damages for injuries sustained through the negligence of another, the law regards only the direct and proximate results of the negligent act, as creating a liability against the wrongdoer.
    2. In contemplation of law, an injury that could not have been foreseen or reasonably anticipated as the probable result of an act of negligence, is not actionable.
    3. No liability exists for acts of negligence causing mere fright or shock, unaccompanied by contemporaneous physical injury, even though subsequent illness results, where the negligent acts complained of, are neither willful nor malicious.
    (No. 10332
    Decided June 9, 1908.)
    Error to the Circuit Court of Ross County.
    Suit was brought by the plaintiff in error, Elizabeth Miller, in the court of common pleas of Ross county against the Baltimore & Ohio Southwestern Railroad Company to recover damages for alleged injuries to her property and person, caused, as she averred, by the negligence of said railroad company. To her original petition a motion was addressed asking that the averments of said petition be made - definite and certain, this motion was sustained by the court and leave was given -her to file an amended petition instanter, whereupon she filed the following pleading:

      First Cause of Action:
    1. Plaintiff for a first cause of action says that the defendant is, and was at the time of the commission of the grievances hereinafter complained of, a corporation duly incorporated under the laws of the State of Ohio, owing and operating a certain railroad known as the Baltimore. & Ohio Southwestern Railroad Company, in the city of Chillicothe, Ohio, and maintaining in said city yards, locomotives and tracks for the purpose of switching cars and making up trains. That a portion of said yards and tracks are contiguous to and run paralled with East Seventh street between McArthur and Water streets in said city.
    2. That at the time hereinafter mentioned plaintiff owned and resided in certain premises, consisting of a dwelling house and lot of land, located upon the northwest corner of said Seventh and McArthur streets, .said dwelling house being situated about seventy feet west' of the western termini of the said Tracks used by said defendant for switching purposes.
    3. That defendant in the laying and construc- " tion of the aforesaid switching tracks was guilty of gross negligence and carelessness in failing to |; erect and place at said western termini of said '¡Tracks a bumping post or some other suitable de'vice for the purpose of preventing cars from being run or shoved off of said western termini of said tracks, so .that unless great care was used by said defendant in the switching of its said cars they were liable to be pushed off the western termini of said tracks, across said McArthur street and onto plaintiff's premises, of all of which defendant had full-knowledge and notice.
    4. That on the twenty-fourth day of November, 1903, by reason of the gross carelessness and negligence of the defendant and its agents, servants and employes in switching, running, operating and managing a locomotive, to which were attached several cars, a number of said cars were, with great speed, run off the western terminus of one of the aforesaid tracks and shoved across said McArthur street and the lot of said plaintiff, a distance of seventy feet, and thrown against her said dwelling house with great force and violence, whereby the southern and eastern walls and two interior partitions of. said house was shattered and destroyed.
    5. That by reason of the said gross carelessness and negligence of the defendant the remaining walls, partitions and structure of said house have been permanently injured and weakened; that fifteen feet of fencing and three blocks of cement paving appurtenant to said dwelling and belonging to said plaintiff were destroyed, and that two carpets of the value of $12.00 and a step ladder of the value of $3.00 belonging to said plaintiff were struck, run over and completely ruined by said cars at the time hereinbefore named.
    6. That in consequence of the foregoing, part of plaintiff's said dwelling house was rendered unfit for occupancy and that plaintiff was unable to, and did not use part thereof for seven months. That all of these matters were without fault or negligence on the part of plaintiff, and by reason of all the premises herinbefore set forth she suffered damage in the sum of five hundred ($500.00) dollars.
    Second Cause of Action :
    Plaintiff for a second cause of action refers to the foregoing cause of action making-the first four paragraphs thereof a part hereof as though herein fully pleaded and set out at length, and says that (Iat the time therein named she was standing on her 11 said premises at a point between her said dwelling house and said McArthur street, and within a !'few feet of the point where said cars struck her said dwelling house, and by reason of the gross carelessness and negiigence of the defendant, whereby her property was shattered and destroyed, she suffered a severe nervous shock that shattered her nervous system and caused her great bodily pain and mental anguish and permanent injury to her person and health. That in the employment of physicians to heal and cure her, she incurred expenses amounting to sixty dollars ($60.00), and was, by reason of said in(jury, for three months unable to perform ordinary work and has, in consequence of such inability to perform the work aforesaid sustained loss in the sum of one hundred dollars ($100.00), /and that by reason of said shock has been permajnently injured in her person and health and damaged thereby in the sum of twenty-five hundred dollars ($2,500.00), including said claim for inability to perform work and expenses incurred for medical service.
    Plaintiff therefore says that by reason of the premises set forth in the foregoing causes of action she has been damaged in her person and property in the sum of three thousand dollars ($3,000.00), for which she prays judgment against said defendant.
    To the second cause of action in said amended petition the railroad company demurred, alleging as ground of demurrer that the facts therein stated were not sufficient to constitute a cause of action against it, and in favor of the plaintiff, Elizabeth Miller. This demurrer was sustained by the court of common pleas and the plaintiff not desiring to] amend said cause of action or to plead further,,] said second cause of action was by the court dis- :¡ missed and ordered to be stricken from the; amended petition. This judgment of the court of common pleas sustaining said demurrer and dismissing said second cause of action was affirmed by the circuit court. Elizabeth Miller prosecutes error and asks that the judgments of both of said courts be reversed.

      Mr. Wallace D. Yaple, for plaintiff in error, cited and commented upon the following authorities :

      Railway Co. v. Ebert, 19 C. C., 726; Smith v. Railway Co., 23 Ohio St., 10; Watson on Damages for Personal Injuries, Sections 402 and 405; 1 Thompson’s Commentaries on Negligence, Section 155; 1 Joyce on Damages, Section 364; Sedgwick on Damages (8 ed.), Section 861; 1 Beven on Negligence, 76, 84; Dulieu v. White, & Sons, 2 K. B. (1901), 669; Pugh v. Railway Co., 2 Q. B. (1896), 248; Bell v. Railroad Co., 26 L. R. Ir., 428; Yoakum v. Kroeger, 27 S. W. Rep., 953;
      Railway Co. v. Hunerberg, 16 Ill. App., 387; Purcell v. Railway Co., 48 Minn., 134, 50 N. W. Rep., 1034; Mack v. Railroad Co., 52 S. Car., 323, 68 Am. St. Rep., 913, 23 S. E. Rep., 905; Watkins v. Manufacturing Co., 131 N. Car., 536, 42 S. E. Rep., 983, 60 L. R. A., 617; Oliver v. La Valle, 36 Wis., 592; Watson v. Dilts, 116 Ia., 249, 57 L. R. A., 559, 93 Am. St. Rep., 239; 89 N. W. Rep., 1068; Railroad Co. v. Hayter, 55 S. W. Rep., 128; Hill v. Kimball, 76-Tex., 210, 13 S. W. Rep., 59, 7 L. R. A., 618; Cooper v. Railroad Co., Sc. Ct. of Sess., 4 F., 880; Brownback v. Frailey, 78 Ill. App., 262; Stewart v. Railroad Co., 112 La., 764, 36 So. Rep., 676; Fitzpatrick v. Railroad Co., 12 N. C. Q. B., 645; Hendrix v. Railway Co., 89 S. W. Rep., 461; Larson v. Chase, 47 Minn., 307; 28 Am. St. Rep., 370; McKeon v. Railway Co., 94 Wis., 477; Railway Co. v. Kellogg, 94 U. S., 469; Sloane v. Railway Co., Ill Cal., 668; Spade v. Railroad Co., 168 Mass., 285, 60 Am. St. Rep., 393; Buchanan v. Railroad Co., 52 N. J. L., 265, 19 Atl. Rep., 254.

      Mr. Edward Barton and Mr. John P. Phillips, for defendant in error, cited and commented upon the following authorities:

      Ewing v. Railway Co., 147 Pa. St., 40; Mitchell v. Railway Co., 151 N. Y., 107; Spade v. Railroad Co., 168 Mass., 285; White v. Sander, 168 Mass., 296; Braun v. Craven, 175 Ill., 401, 51 N. E. Rep., 657; 8 Am. & Eng. Ency. Law (2 ed.), 665; 1 Thompson on Negligence (2 ed.), 866; Wyman v. Leavitt, 71 Me., 227; Railway Co. v. Trott, 86 Tex., 412; Johnson v. Wells, Fargo & Co., 6 Nev., 224; Dorrah v. Railroad Co., 65 Miss., 14; Nelson v. Crawford, 122 Mich., 466; Trigg v. Railway Co., 41 Am. Rep., 305,; Railroad Co. v. Dalton, 70 Pac. Rep., 645; Traction Co. v. Lambertson, 59 N. J. L., 297, 38 Atl. Rep., 684; Express Co. v. Platten, 93 Fed. Rep., 936; Deming v. Railway Co., 80 Mo. App., 152; Sanderson v. Railway Co., 88 Minn., 162; Smith v. Railway Co., 23 Ohio St., 10; Sloane v. Railway Co., Ill Cal., 668; Buchanan v. Railroad Co., 52 N. J. L., 265, 19 Atl. Rep., 254; Mack v. Railroad Co., 52 S. Car., 323, 68 Am. St. Rep., 913, 29 S. E. Rep., 905; Hill v. Kimball, 76 Tex., 210; Watson v. Dilts, 116 Ia., 249; Purcell v. Railway Co., 48 Minn., 134; Stewart Railway Co., 36 So. Rep., 676; Yoakum v. Kroeger, 27 S. W. Rep., 953; Watkins v. Manufacturing Co., 131 N. Car., 536; 42 S. E. Rep., 983; 60 L. R. A., 617.
   Crew, J.

The amended petition in this case contained two alleged causes of action, each separately stated and numbered. The wrong complained of by plaintiff in her first cause of action was, that the defendant railroad company in operating and managing a certain locomotive to which were attached a number of cars, negligently and with great force shoved or pushed said cars off of the end of its switch track, across a public street and against and into the dwelling house of plaintiff thereby injuring and damaging said dwelling house and' other property of the plaintiff to the extent of five hundred dollars. As a second and separate cause of action, she alleged that at the time of said accident she was standing on her own premises within a few feet of the point where said cars struck her dwelling house, and in consequence, and as the result of witnessing said accident “she suffered a severe nervous shock that shattered her i nervous system and caused her great bodily pain and mental anguish and permanent injury to her 'I person and health.” There was no claim or allegation in said petition that plaintiff at the time of said accident received any actual bodily injury, or that the negligence of the defendant was willful or wanton. A demurrer addressed to this second cause of action was sustained by the court and said cause of action was dismissed, and the present record presents for determination the single question, whether or not in an action for negligence, I unaccompanied by any element of wantonness or intentional wrong, there can be a recovery of damjages for alleged physical injury caused by mere ¡¡fright or shock. While the precise question thus presented has not heretofore been determined by this court it has received the consideration of, and been decided by, courts of last resort in many of the other states; and the right to recover for injuries so caused has been almost universally denied. In the case of Ewing and Wife v. P. C. C. & St. L. Ry. Co., 147 Pa. St., 40, a case very like the present case, the plaintiffs alleged in their petition, as and for their cause of action, that in consequence of a collision of trains on defendant’s railway, “The cars of the defendant company were broken, overturned and thrown from the track and fell upon the lot of ground and premises of the plaintiffs, and against and upon the dwelling house of plaintiffs and thereby and by reason thereof greatly endangered the life of the said Eva Ewing, then being in said dwelling house, and subjected her to great fright, alarm, fear and nervous excitement and distress, whereby she then and there became sick and disabled, and continued to be sick, and disabled from attending to her usual work and duties, and suffered and continues to suffer great mental and physical pain and anguish, and is thereby permanently weakened and disabled, and that she was and is thereby otherwise injured and damnified, wherefore she claims damages in the sum of five thousand dollars, and demands judgment therefor.” To this petition the railway company demurred, and the common pleas court entered judgment for the defendant on said demurrer. This judgment was affirmed by the Supreme Court. The syllabus of the case is as follows: “A statement of claim averring that, by a collision on defendant’s railroad, through the negligence of defendant’s' employes, the cars were derailed and thrown against plaintiff’s dwelling, subjecting her to fright and to nervous excitement permanently weakening and disabling her, exhibits no cause of action. Mere-’ fright, occasioned by such an accident, producing permanent injury to the nervous system, is a result too remote to be actionable. No well-considered case has held that fright alone, not resulting1 from or accompanied by some physical injury to' the person, will sustain an action for negligence.” In Spade v. Lynn & Boston Railroad Co., 168 Mass., 285, the declaration of plaintiff, after charging certain specific acts of negligence on the part of defendant’s agents and servants, alleged that defendant “thereby frightened the plaintiff and subjected her to a severe nervous shock, by which nervous shock the plaintiff was physically prostrated, and suffered and has continued to suffer great mental and physical pain and anguish, and has been put to great expense.” The syllabus of the case is as follows: “In an action to recover damages for an injury sustained through the negligence of another, there can be no recovery for a bodily injury caused by mere fright and mental disturbance.” In the opinion the court say: “The law of negligence, in its special application to cases of accidents, has received great development in recent years. The number of actions brought is very great. This should lead courts well to consider the grounds on which claims for compensation properly rest, and the necessary limitations of the right to recover. We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without. The logical vindication of this rule is, that it is unreasonable to hold persons who are merely negligent bound to anticipate and guard against fright and the consequences of fright; and that this would open a wide door for unjust claims, which could not successfully be met.” In Gulf, Colorado & Santa Fe Railway Co. v. Trott, 86 Tex., 412, the plaintiff claimed and was allowed damages in the county court for alleged negligence on the part of the railway company, whereby plaintiff’s team of horses, hitched to a wagon in which plaintiff was traveling, became frightened and broke the wagon, putting plaintiff in fear for his own personal safety, and causing him, as he alleged in his complaint, “great mental suffering, vexation and anxiety of mind.” There being evidence tending to support these allegations, the jury was instructed that if plaintiff was frightened and put in fear of his personal safety, and was cauáed mental pain or anxiety, they should allow him reasonable compensation therefor. Under the practice in that state, the court of civil appeals certified to the Supreme Court the following questions for decision: “(i) In an action for damages based upon tortious and negligent conduct of a defendant, where the wrongful act causes damage to plaintiff’s property, but no physical injury to plaintiff, is mental suffering an element of actual damages? (2) Can actual damages be recovered for mental suffering when there is no physical injury, no injury to property, nor other element of actual damages ?*’ The court responded: “We are of opinion that these questions should be answered in the negative. So far as we have been able to discover, all the cases involving the question of the right to recover for fright alone are in accordance with that holding.” In Mitchell v. Rochester Ry. Co., 151 N. Y., 107, it was held: “No recovery can be had for injuries sustained by fright occasioned by the negligence of another, where there is no immediate personal injury.” The facts of that case were as follows: Plaintiff was standing upon a crosswalk on Main street, in the city of Rochester, awaiting an opportunity to board one of the defendant’s cars which had stopped upon the street at that place. While standing there, and just as she was about to step upon the car, a horse car of the defendant came down the street. As the team attached to the car drew near, it turned to the right and came so close to the plaintiff that she stood between the horses’ heads when they were stopped. She testified that from fright and excitement caused by the approach and proximity of the team she became unconscious, and also that the result was a miscarriage -and consequent illness. Medical testimony was given to the effect that the mental shock which she then received was sufficient to produce that result. The court in the opinion say: “Assuming that the evidence tended to show that the defendant’s servant was negligent in the management of the car and horses, and that the plaintiff was free from contributory negligence, the single question presented is whether the plaintiff is entitled to recover for the defendant’s negligence which occasioned her fright and alarm, and resulted in the injuries already mentioned. While the authorities are not harmonious upon this question, we think the most reliable and better considered cases, as well as public policy, fully justify us in holding that the plaintiff can not recover for injuries occasioned by fright, as there was no immediate personal injury. If it be admitted that no recovery can be had for fright occasioned by the negligence of another, it is somewhat difficult' to understand how a defendant would be liable for its consequences. Assuming that fright can not form the basis of an action, it is obvious that no recovery can be had for injuries resulting therefrom. That the result may be nervous disease, blindness, insanity, or even a miscarriage, in no way changes the principle. These results merely show the degree of fright or the extent of the damages. The right of action must still depend upon the question whether a recovery may be had for fright. If it can, then an action may be maintained, however slight the injury. If not, then there can be no recovery, no matter how grave or serious the consequences. If the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and where the damages must rest upon mere conjecture or speculation. The difficulty which often exists in cases of alleged physical injury, in determining whether they exist, and if so, whether they were caused by the negligent act of the defendant, would not only be greatly increased, but a wide field would be opened for fictitious or speculative claims. To establish such a doctrine would be contrary to principles of public policy.” In Atchison, Topeka & Santa Fe Ry. Co. v. McGinnis, 46 Kans., 109, the court say: “The jury found that the plaintiff below was damaged $65 by reason of peril and fright. Damages of this kind are too remote. A person who is placed in peril by the negligence of another, but who escapes without injury, may not recover damages simply because he had been placed in a perilous position. Nor is mere fright the subject of damages. Fright must be accompanied by some actual injury caused thereby, and traceable directly thereto, to be the subject of damages. Mere fright, unaccompanied by any injury resulting therefrom, can not be the subject of damages.” In Victorian Railway Comrs. v. Coultas, 13 Law Reports, Appeal Cases, 222, the facts were, that the gatekeeper at a railway crossing negligently permitted the plaintiff’s carriage to cross the railway track just as a train was approaching. The approach of the train was discovered by the driver of the carriage in time to prevent a collision, but the peril was imminent and the plaintiff, a woman, was greatly frightened. It was said by Sir Richard Couch, in the opinion in that case: “The rule of English law as to the damages which are recoverable for negligence is stated by the Master of the Rolls in The Notting Hill, 9 P. D., 105, a case of negligent collision. It is that the damages must be the natural and reasonable result of the defendant’s act; such a consequence as in the ordinary course of things would flow from the act. According to the evidence of the female plaintiff her fright was caused by seeing the train approaching, and thinking they were going to be killed. Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, can not under such circumstances, their Lordships think, be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gatekeeper. If it were held that they can, it appears to their Lordships it would be extending the liability for negligence much beyond what that liability has hitherto been held to be. Not only in such a case as the present, but in every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased, and a wide field opened for imaginary claims.” Scheffer et al., Exrs., v. Railroad Co., 105 U. S., 249, was a suit to recover damages for the death of one Charles Scheffer, who was injured by the negligence of the defendant railroad company, and as a result of the injuries received, he became insane and while in that condition committed suicide. Mr. Justice Miller in the course of the opinion in that case in discussing the relation of defendant’s negligence to the cause of death, said: “The proximate cause of the death of Scheffer was his own act of self-destruction. The argument is not sound which seeks to trace this immediate cause of the death through the previous stages of mental aberration, physical suffering, and eight months’ disease and medical treatment to the original accident on the railroad. Such a course of possible or even logical argument would lead back to that ‘great first cause least understood,’ in which the train of all causation ends. The suicide of Scheffer was not a result naturally and reasonably to be expected from the injury received on the train. It was not the natural and probably consequence, and could not have been foreseen in the light of the circumstances attending the negligence of the officers in charge of the train.- 'His insanity, as a cause of his final destruction,’ was as little the natural or probable result of the negligence of the railway officials, as his suicide, and each of these are casual or unexpected causes, intervening between the act which injured him, and his death.” The same general rules and principles announced and applied in the foregoing decisions- are recognized and find support in the following additional cases: White v. Sander, 168 Mass., 296; Nelson v. Crawford, 122 Mich., 466; Wyman v. Leavitt, 71 Me., 227; Smith v. Postal Telegraph Cable Co., 174 Mass., 576; Braun v. Craven, 175 Ill., 401; Kansas City, Ft. Scott & Memphis Railroad Co., v. Dalton, 65 Kans., 661; Haile’s Curator v. Texas & Pacific Ry. Co., 60 Fed. Rep., 557; Sanderson v. Railway Co., 88 Minn., 162; Deming v. C. R. I. & P. Railway Co., 80 Mo. App., 152; Johnson v. Wells, Fargo & Co., 6 Nev., 224; Canning v. The Inhabitants of Williamstown, 1 Cush., 451. See also Morton v. The Western Union Telegraph Co., 53 Ohio St., 431.

There is a line of cases found in the reports in > which it is held by the courts, that the rule requiring actual physical injury or bodily hurt, in order jto warrant a recovery- in negligence cases for ¡mental distress or nervous shock, does not apply ¡¡where the negligent act complained of is committed, by the defendant wilfully, wantonly or maliciously. And there is yet another class in which it is held that if the physical injury is the natural, probable and proximate result.of a nervous condition, which itself is the natural and proximate consequence of the defendant’s negligence, that then, there may be a recovery in damages, irrespective of any bodily. injury to plaintiff at the time of his fright' or mental shock. Many, if not all, the cases cited by counsel for plaintiff in error in support of the contention here made by him, fall within -one, or the other of these two classes, and in consequence they are clearly distinguishable from the case at bar, and need not here be discussed. In the present case the plaintiff, Elizabeth Miller, does not allege intentional and willful negligence ■ on the part of the defendant, nor does she claim that defendant knew, or could reasonably have anticipated, that its negligent act of which she complains, would cause her “severe nervous shock, great bodily pain and mental anguish, and permanent injury to .her person and health.” The rule is elementary, that a defendant in an action for negligence can be held to respond in damages only for the immediate and proximate result of the negligent act complained of, and in determining what is direct or proximate cause, the rule requires that the injury sustained shall be the natural and probable consequence of the negligence alleged; that is, such consequence as under the surroj-inding circumstances of the particular case might, and should have been foreseen or anticipated by the wrongdoer 'as likely to follow his negligent actj Being of opinion, that measured by this rule, the injury complained of by Elizabeth Miller in her second cause of action is not such that the defendant railroad company is legally liable therefor, we hold, both upon that ground, and upon the ground of public policy, that in a case like the present, no legal liability-can be predicated upon injury resulting from mere fright or nervous shock. The judgments of the courts below are

Affirmed.

Price, C. J., Shauck, Summers, Spear and Davis, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Regan, Admx., v. McHugh.

      Direction of verdict — Judgment cannot be reversed — Unless record presents all evidence — Certificate of trial judge — Necessary to show bill of exceptions is complete.

    1. A judgment of a trial court should not be reversed for error in directing a verdict for either party unless the record presented to the reviewing court affirmatively shows that it contains all the evidence upon which the direction was given.
    2. That a bill of exceptions contains all the evidence offered upon the trial of a cause can be shown only by the certificate of the trial judge.
    (No. 10461
    Decided June 9, 1908.)
    Error to the Circuit Court of Hamilton County.
    Mrs. Regan, as administratrix of John Regan, deceased, brought suit in the court of common pleas to recover from McHugh $413.70, the sum which she had been compelled to pay to redeem certain real estate in Cincinnati from a tax sale which had resulted from the alleged default of the defendant to pay the-taxes agreeably to his covenant as lessee of her intestate. The defendant in his answer expressly admitted the covenant upon which the plaintiff counted and impliedly admitted the . non-payment of the taxes according to its terms. By cross-petition he sought to recover the sum of $1,500.00, the damages .which he alleged he had sustained by reason of the breach of the covenant of quiet enjoyment, and the right to purchase said premises, the defendant’s allegation being, that the plaintiff’s decedent had made covenants to that effect in his lease, and that his title had failed; that the defendant had been evicted, losing the enjoyment of the premises and certain improvements which he had erected thereon, and losing the covenanted opportunity to purchase the premises.
    ... The plaintiff replying first, admitted that her intestate had made the covenant counted upon in the cross-petition and denied all other allegations which it contained. Further replying, she alleged that in a former suit between her intestate and the defendant, the suit being brought by the former to recover taxes previously due upon the same covenant upon which she counted in this case, the defendant had pleaded the same matters now set up in his cross-petition in the present case, that said former cause proceeded to trial upon its merits and was determined in favor of the plaintiff, and that thereby the matters alleged in the cross-petition of the defendant had all been adjudged adversely to him. Upon these issues the cause was tried to a jury, and at the close of the evidence upon motion of the plaintiff the jüry was directed to return a verdict in her favor for the amount claimed in her petition. To that instruction the defendant excepted. Such verdict being returned the defendant moved for a new trial. That motion was overruled and a judgment for the plaintiff was entered upon the verdict so directed. A bill of exceptions was taken containing evidence offered upon the trial, but containing no certificate that it was all the evidence offered upon the trial, and a petition in error was filed by the defendant in the circuit court where the judgment of the court of common pleas was reversed, and the cause was remanded to the latter court for a new trial. The reversal of the judgment of the circuit court and the affirmance of that of the court of common pleas is the object of this proceeding in error.

      Mr. Frank M. Coppock and Mr. H. W. Jones, for plaintiff in error.

      Mr. Charles J. Hunt; Messrs. Bennett & Utter and Mr. O. W. Bennett, for defendant in error.
   Shauck, J.

Counsel for the plaintiff do not present to us their views upon any question which was controverted in the court of common pleas. The proposition which they urge upon our attention is, that because the bill of exceptions does not contain a certificate of the trial judge that it .contains all of- the evidence which was offered upon the trial of the court of common pleas, there was not presented to the circuit court a record which would, in any view of the questions considered in the court of common pleas, authorize a reversal of its judgment. Counsel for the de-fendant insist that although there is no certificate to that effect, the bill of exceptions does contain all the evidence which was offered upon the trial. But the circuit court was reviewing the proceedings of a court of record and it was imperative that the judgment should stand, unless impeached by the record itself. The impracticability of inquiry upon this question beyond the record is apparent here, because counsel for the plaintiff assert that the action of the common pleas court was influenced by material evidence which was not presented to the circuit court. The absence of the certificate must be regarded as determining the question conclusively in favor of the plaintiff.

Since the circuit court could not assume that it had before it all the evidence which was offered in the court ®f common pleas, the practical question is, whether it reversed the judgment upon a ground which required a consideration of all the evidence which had been presented in the trial court. The entry of the judgment of the circuit court does not show the ground of the reversal in obedience to the requirement of Section 6709, Revised Statutes. It appears, however, from the record that the only exception taken by the defendant upon the trial was to the action of the court in directing a verdict for the plaintiff, and that all the errors assigned in-the petition in error in the circuit court relate either to that instruction or to the weight of the evidence. That instruction must, therefore, be taken to have constituted the ground of reversal. The plea of a former adjudication of the matters alleged in the cross-petition of the defendant was made in the reply, and it was deemed to be traversed without further pleading. On that issue it was competent for the plaintiff to establish her right to a verdict, as a matter of law, by introducing the record of such former adjudication. The bill of exceptions affirmatively shows that a record of a former suit between the plaintiffs intestate and the defendant was offered in evidence. That it was admitted in evidence does not appear affirmatively, but in aid of the judgment which it was reviewing, the circuit court should have presumed that it was admitted and that it conclusively established the plaintiff’s plea of -a former adjudication of the matters alleged in the cross-petition. That, in view of the admissions of the answer, would have justified the trial judge in directing a verdict for the plaintiff. The circuit court, therefore, did not have before it a record which justified it in reversing judgment of the court of common pleas whatever may be the correct view upon other questions controverted in the latter court.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Price, C. J., Crew, Summers, Spear and Davis, JTJT., concur.


author: Price, C. J.

text:
    Powell, Admx., v. Powell, Admx.

      Action by administratrix of payee upon note — Against estate of deceased maker — Children of deceased payee are competent zvitnesses — Although children are legatees or devisees■ — Law of evidence.

    On the trial of an action on a promissory note brought by the administratrix of the estate of the payee against the administratrix of the estate of the maker thereof, the children of the payee are competent witnesses to testify against the defendant as to conversations had with the deceased maker during his lifetime concerning his liability on the note and the consideration for the same, although such children are legatees or devisees under the will of said payee.
    (No. 10328
    Decided June 9, 1908.)
    Error to the Circuit Court of Hancock County.
    Benjamin Powell brought suit in the court of common pleas against the defendant in error on a promissory note, of which the following is a copy:
    “$i,ooo. June 23, 1894.
    “Two years after date I promise to pay to Benjamin Powell or bearer, one thousand dollars, value received without interest.
    “Lewis Powell/'’
    The petition alleges that on the 19th day of July, 1902, the plaintiff, Benjamin Powell, duly presented to the defendant as such administratrix a written statement of his said claim and demanded an endorsement of allowance thereon, but that she refused said endorsement and rejected said claim. It is further alleged that there is due on said note the sum of $i,ooo with interest from the 23d day of June, 1896, and that there are no credits or endorsements thereon. This is the first cause o action.
    As a second cause of action, the said plaintiff alleged that the defendant as said administratrix is indebted to plaintiff upon an account, the sum of $16.75 with interest thereon from the. 8th day of December, 1897, which was then due and unpaid. It is further alleged that this claim was duly presented for allowance to the administratrix of the estate of Lewis Powell on the 19th day of July, 1902, and that she rejected the same. On the trial this cause of action was abandoned.
    The defendant answered the first cause of action, and admitted her representative capacity, and that Lewis Powell signed said note, and that the then plaintiff Benjamin Powell, presented to her a written statement of his claim and demanded an endorsement of its allowance which was refused and the claim rejected. All the other allegations of the first cause of action are denied. The answer further avers that the money mentioned in said note and the money for which said note was given, was a gift from Benjamin Powell to his son Lewis Powell and intended as an advancement, and s.aid note was given only as evidence of said advancement, and that it was never intended that it should be paid. The prayer of the answer is that the note be declared to be evidence of an advancement and not of a debt, and for other relief.
    In the meantime the plaintiff, Benjamin Powell, died, and Mary Powell filed a reply to the answer, in which it is alleged that Benjamin Powell died testate and that by the terms of his will she was appointed executrix thereof and that she has been duly qualified to act in that capacity. She denied each and every allegation in the answer, and especially the allegation that the money represented by said note, or any part thereof, was a gift or advancement by said Benjamin Powell to his son Lewis Powell.
    The case was tried to a jury. The defendant having the affirmative on the issues, introduced her evidence and rested. The plaintiff, then introduced the note sued on and examined sundry witnesses. Among others examined by the plaintiff were Amanda Fox, Silas Powell and Sarah Ellen Crossley. Objection was made to the competency of each, but the objections were, overruled and exceptions taken. Also, objection was made to certain testimony elicited from competent witnesses, or witnesses whose competency was not questioned There are some objections to the charge of the court.
    • The jury found for the plaintiff in the sum of $1,552.50. The court overruled a motion for new trial and rendered judgment on the verdict. The case was taken on error to the circuit court where the judgment of the court of common pleas was reversed on the the ground that the above-named witnesses were incompetent to testify in the case and that their evidence should.have been excluded.
    Error is prosecuted in this court to reverse the judgment of the circuit court.

      Messrs. Poe & Poe, for plaintiff in error.

      Messrs. Franks & Pranks and Messrs. McConica & Dwiggins, for defendant in error.
   Price, C. J.

The judgment of the court of common pleas was rendered on a note executed and delivered by Lewis Powell to his father, Benjamin Powell, on the 23d day of June, 1894, payable two years after date without interest. The judgment was rendered on the 29th day of December, 1905.

The circuit court found error in this judgment and reversed it on the sole ground as stated in the record “that the witnesses for the plaintiff, Amanda Fox, Silas Powell and Sarah Ellen Crossley, were not competent to testify in the case for the reason that they are heirs and devisees of Benjamin Powell, deceased, and for that reason interested in the result of the law suit.”

Neither of these persons was a party to the action tried, and in which their testimony was taken, and the circuit court would disqualify them because they are heirs and devisees of the payee of the note, which rule, if sound, has been heretofore overlooked or grossly neglected in our practice. If we search the common law we may find some support for the view taken, but to enforce its rule as to the competency of witnesses in civil actions would institute a preliminary inquiry as to whether the witness in fact is interested in the outcome of the litigation — an inquiry which, when required, was not only annoying and vexatious, but often barren of beneficial results. Financial interest in the controversy at common law was made a ground of incapacity to testify, because of the supposed inclination to falsify which arose from the prospect of gaining or losing by the issue of the proceedings. This supposed interest created the incapacity. Hence, the always .present side issue at times was to determine whether the offered witness was in fact interested in the subject-matter of the action or in its results. The rule of exclusion proved not only inconvenient but subject to such evasions and exceptions that it was finally so discredited that legislation supplanted it in nearly every jurisdiction by establishing new and more practical limitations on the competency of witnesses.

The scales formerly used to weigh the real or contingent interest of a proposed witness have been discarded, and a more enlightened and efficient channel for the production of testimony has been provided. Interest in the controversy is of itself no longer regarded as a sure ground of presumption that a party or witness will falsify or give testimony colored or biased in favor of such interest. Under the present system of practice equality of the parties to the suit is the object to be subserved rather than the weighing in delicate scales the degree of interest the witness may have, leaving that to be considered as affecting his credibility.

The witnesses declared incompetent by the circuit court in this case are children of Benjamin Powell, payee of the note., and Lewis Powell, deceased, and maker of the note, was their brother. Their testimony related to statements made by and conversations had with the maker of the note during- his lifetime, tending to show that the amount named in the note was a debt from him to his father, and not a gift or advancement as alleged in the answer. There can be no doubt about the competency of such evidence, for it was intended to meet and rebut the evidence introduced to support the answer.' But it is said that the evidence was not given by competent witnesses.

To settle many disputes which naturally arose during the reign of the common law practice our general assembly enacted that “all persons are competent witnesses except those of unsound mind and children under ten years of age who appear incapable of receiving- just impressions of the facts and transactions respecting which they are examined or of relating them truly.” See Section 5240, Revised Statutes. The older provision on the subject was Section 310 of the code of civil procedure, “no person shall be disqualified as a witness in any civil action or proceeding- by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting- his credibility.” See S. & C., 1035. "After the broad declaration of Section 5240, supra, the statute in the next section provides that certain persons shall not be heard to testify ^concerning certain things, communications, confessions, etc. There is nothing in the section for application here.

But the next, or Section 5242, governs us in the determination of the point at issue. Having declared in Section 5240 that all persons are competent witnesses except two classes, the former places certain restrictions on the “right of a party to testify, and provides that “a party shall not testify where the adverse party is the guardian or trustee of either a deaf and dumb, or an insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee, or legatee of a deceased person, except,” et cetera. There are eight exceptions to the above restriction, no one of which is claimed to be of importance here, except the eighth, which will be noticed more fully hereafter.

Who is the party mentioned in Section 5242? It is not a generic term to cover the litigants and also their witnesses, for the section and its immediate companions speak of witnesses and parties in a different sense. A party may also be a' witness, within the restraints of the statute, but a witness is not a party to the action. The party referred to is a party to the action, and not one who may be interested in the results of the litigation; a party to the suit and so known on the record. He it is who “shall not testify where the adverse party is the guardian or trustee of either a deaf and dumb or an insane person * * * or is an executor or administrator * *

Had the payee of the note in suit, Benjamin Powell, been offered as a witness against the administratrix of the estate of the maker of the note he would not have been heard, the other party to the obligation being dead. But during the pendency of the suit the payee died, and his wife, plaintiff in error, became executrix of his will, or administratrix of his estate. It is shown by the record that she “was offered as a witness against the defending administratrix, and the trial court excluded her evidence, holding she was not competent under Section 5242, supra. The witnesses, Amanda Fox, Silas Powell and Sarah Ellen Crossley, were in no legal sense parties to the suit, and neither of them can be properly regarded as a party adverse to the defendant. While they are heirs and devisees of Benjamin Powell, payee of the note, they could be neither proper nor necessary parties to the action. See Keyes v. Gore, 42 Ohio St., 211. Furthermore, they did not testify to. anything connected with the giving of the note, but touching conversations had with the maker and also concerning advancements to other members of the family of Benjamin Powell.

We have said these three witnesses could not have been made parties to the action on the issues joined in the pleadings. They could not have maintained a suit on this note had it been bequeathed to them by the payee, where there is an executor or adminstrator in charge of the estate. We held in McBride, Admr., v. Vance, 73 Ohio St., 258, that “as a general rule administration is a prerequisite to the devolution of the personal estate of a decedent,” and in so holding we followed former decisions of this court to the same effect. The heirs or legatees of personal estate acquire their interest on distribution and such interest may eventually be small or nothing. They were not disqualified because they might ultimately receive a part of the estate.

Some reliance is manifested on the last clause of subdivision 8 of Section 5242, which is, “and when a case is plainly within the reason and spirit of the last three sections,’ though not within the strict letter, their principles shall be applied.” We have found it difficult sometimes to enforce this clause, because of its very indefinite character. We can not give it operation in this case, because to do so would contravene the clear provisions of the sections quoted as to who are competent witnesses and as to restrictions placed on their testimony. All persons are competent except the two classes mentioned in Section 5240, and those persons not within one or other of these classes may testify subject to the restrictions of Sections 5241 and 5242, supra. There is nothing obscure or doubtful in their provisions, and it will not do to have the “reason and spirit” clause override other unequivocal rules. This view of the law was taken in Cochran v. Almack, 39 Ohio St., 314, where the court say on page 316: • “What is the scope of the clause under consideration it would be difficult to say in advance of cases as they may arise. It calls for the application of the principles of the three preceding sections, only when the case is not provided for by either of these sections. If the case is not within the letter, but is plainly within the reason and spirit of these sections their principles shall be applied. It follows, that if a case is provided for by the terms of either of the sections, no occasion can arise for invoking the spirit and reason of the statute to supply the omission of its letter or terms.”

While the admission of the testimony of the three witnesses named is the only error found by the circuit court, it is now urged that there was other incompetent testimony admitted. None of material importance has been pointed out to us. In this, as in other cases where family differences arise and grow warm, some irrelevant matter can be found in a record of the trial. But in this case the errors, if any, were trivial and were not all on one side of the controversy.

Complaint is also made of the charge of the coürt. Taken as a whole, we think it fairly submitted the case to the jury’and it contains no fault of sufficient gravity to justify a reversal of the judgment of the trial court.

The judgment of the circuit court is reversed and that of the common pleas affirmed.

Judgment reversed.

Si-iauck, Crew, Summers and Spear, JJ., concur.


author: Davis, J.

text:
    The Hough Ave. Savings & Banking Company v. Andersson.

      Savings bank — By-laivs require presentation of deposit book and written order — Part of contract, when — Payment upon forged order — Bank liable to owner of deposit, when.

    T. By-laws of a savings bank, which require the presentation of the deposit book, or due notice to the bank in case of the loss of the book, as conditions precedent to payment to the depositor, or upon his written order, are reasonable -conditions and become a part of the contract between the bank and the depositor, when brought to the notice of the latter.
    2. When in such case the banlj makes payment on presentation of the deposit book or pass-book, not to the depositor in person, but upon what purports to be a written order by him and which turns out to be a forgery, the bank is at least bound to act in good faith and to exercise reasonable care with the view to avoid payment to a person who is not lawfully entitled to receive payment; and if in such case it does not so act in good faith and exercise reasonable care, it will be liable to pay again to the rightful owner of the deposit.
    (No. 10449
    Decided June 26, 1908.)
    Error to the Circuit Court of Cuvahoga county.
    The defendant in error sued the plaintiff in error to recover the amount of two deposits which he had made in the plaintiff in error’s bank, alleging that some person unknown to him had stolen his pass-book and forged his name to an order authorizing the payment of the amount of his deposits, and that the plaintiff in error on the presentation of the said pass-book and forged order negligently and without due care paid out said deposits to a party who was not entitled thereto. The case was tried to a jury and on the trial the defendant, plaintiff in error here, requested the court to charge the jury that the bank had the right upon the presentation of the deposit book to pay the money and upon the payment by the bank on the presentation of the deposit book it was discharged from the amount so paid. And, further, that as the testimony showed that the plaintiff, the defendant in error here, did not notify the bank that his book had been stolen or lost, if the bank paid the money on the presentation of the book it would be a discharge to the bank. The court refused to so charge the jury but did charge that if they found from the evidence that the bank did not exercise reasonable care in making said payment and they also found that the alleged written order which was presented with the pass-book was forged, they should find for the plaintiff, which the jury accordingly did, and judgment was rendered for the plaintiff, and after a motion for a new trial the case was taken to the circuit court which affirmed the judgment, and it is now sought to reverse the judgments of both courts below.
    It appeared on the trial that at the time the defendant in error made his first deposit he signed a deposit card by which he agreed and assented to the rules and regulations of the bank governing saving deposits, and that among those rules, which were printed in the pass-book, was the following: “5- Deposits may be withdrawn by the depositor in person, of by written order; but in either case this pass-book must be presented, that such payments may be duly entered therein. As the officers of the company may be unable to identify every depositor, the company will not be responsible for loss sustained where a depositor has not given notice of his or her book being stolen or lost, if such book be paid, in whole or in part,'on presentation. In all cases, a payment upon presentation of a deposit book shall be a discharge to the company for the amount so paid.”
    After he made his last deposit, which was in July, 1903, he did not again go to the bank until July, 1904, during which interval he kept his bank book in his trunk and did not see it after October, 1903. One Christenson, who resided in the neighborhood of the bank and was known to the paying teller and who had cashed checks at the bank which had proved to be good, in October, 1903, appeared at the bank with a written order which transferred Andersson’s account to him and this order purported to be witnessed by one A. M. Crowl, and it appears to have been a forgery.

      Messrs. White, Johnson, McCaslin & Cannon, for plaintiff in error,
    cited and commented upon the following authorities: Levy v. Bank, 117 Mass., 448; Eaves v. Bank, 27 Conn., 229; Schoenwald v. Bank, 57 N. Y., 418; Burrill v. Bank, 92 Pa. St., 134; Cosgrove v. Institution for Savings, 46 Atl. Rep., 617; Langdale v. Bank, 121 Ga., 105; Morse on Banking, 620; Goldrick v. Bank, 123 Mass., 320; Dolan v. Institution for Savings, 127 Mass., 183.

      Mr. Herman J. Nord, for defendant in error,
    cited and commented upon the following authorities: Ackenhausen v. Bank, 110 Mich., 175; Morse on Banks and Banking, Section 620, p. 1031; Zane on Banks and Banking, Section 360, p. 640; Gearns v. Bank, 135 N. Y., 557; Wegner v. Bank, 76 Wis., 242; Brown, Admr., v. Bank, 67 N. H., 549; Kimball v. Norton, 59 N. H., 1; Ladd v. Bank, 96 Me., 510; 58 L. R. A., 288; Chase v. Bank, 17 Am. Neg. Rep., 186; Kummel v. Bank, 127 N. Y., 488.
   Davis, J.

The plaintiff in error contends that under the contract between the parties in this case, it cannot be held liable where payment was made upon presentation of the pass-book; and that, if this contention is wrong, the testimony in this case is not such as to, charge it with negligence.

These questions are new in this state although they have been the subject of frequent adjudication in other states. These adjudications have uniformly held, where that question was involved, that by-laws of a savings bank requiring the presentation of the pass-book and notice to the bank in case of the loss of the book, as conditions precedent to payment, are' reasonable, and when brought to the notice of the depositor, become a part of the contract between the bank and the depositor. But, notwithstanding the contract relations of the parties, it has been quite as uniformly held, and it does not appear to be controverted here, that the bank is bound to exercise good faith and reasonable care in making payment so that payment shall be made to the person entitled to receive payment; and this is so because public policy will not allow the bank to so strip itself of responsibility by contract as. to enable it to safely pay, intentionally or heedlessly, to one who has come into possession of the pass-book fraudulently or criminally.

In this case the fact of negligence by the bank was submitted to, and found by, the jury; and we think properly so. The pass-book was not presented by the depositor, but by another person, by virtue of what purported to be the depositor’s written order. The teller of the bank, who paid the money, testified that he was not acquainted with the defendant in error, the depositor; that so far as he knew the latter had never been in the bank, except on the two occasions when he made deposits; that he was not familiar with his signature; and that he did not compare the signature to the order with the genuine signature in possession óf the bank. His only excuse for not scrutinizing the order and comparing the signatures is that he knew the man who presented the order and pass-book and that he had before cashed checks for him which had turned out to be good. This evidence was, of itself, sufficient to justify the court in submitting to the jury the question of good faith and reasonable care on.part of the'bank, and therefore the finding of the jury was conclusive upon that point and supports the judgment. Chase v. Waterbury S. Bank, 77 Conn., 295.

The plaintiff in error insists that since the bylaw required the depositor to give notice that his pass-book had been stolen or lost and provided that the bank should not be responsible in default of such notice and that “in all cases a payment upon presentation of a deposit book shall be a discharge to the company for the amount so paid,” and since the defendant in error did not give notice of his loss prior to the payment, the bank is therefore discharged. Upon the assumption that the bank acted in good faith and in the exercise of due care this argument may be valid, otherwise it is not sound. If the bank may negligently or through bad motives pay to a thief who has possession of the bank book, because the owner has not given notice of a loss of which he is not then aware and of which he does not become aware for months afterwards, or if the bank may so pay in any case to a' person who is not lawfully entitled to receive payment, then the depositor has contracted away his right to protection in any case and the responsibility of the bank for good faith and reasonable care, which the law has imposed for reasons of public policy, is entirely futile.

Under the by-law which is the contract in this case, “payment upon presentation of a deposit book” could only be made to the depositor in person or to some person designated by his written order. It was not paid to him in person nor to any person designated by him. It was paid upon a forged order; and if not paid by the bank at its own peril, Ladd v. Augusta Savings Bank, 96 Me., 510, it was at least, as found by the jury, negligently paid to a person who had no right to the deposit.

The authorities cited by counsel for plaintiff in error are not applicable to the present case, because all of them, as we read them, are cases in which the bank was not negligent; and one of them, Schoenwald v. Metropolitan Savings Bank, 57 N. Y., 418, has been distinguished several times, and so limited to the facts of that case that it cannot be regarded as of much value as an authority. Allen v. Williamsburgh Savings Bank, 69 N. Y., 314; Smith v. Brooklyn Savings Bank, 101 N. Y., 58; Kummel v. Germania Savings Bank, 127 N. Y., 488. The judgment is

Aíñrmed.

Price,- C. J., Shauck, Crew, Summers and Spear, JJ., concur.


author: Spear, J.

text:
    Mitchell v. The State.

      Prosecution for selling intoxicating liquors — Sections 4304-30zg and 4364-30ZI1, Revised Statutes, apply to error proceedings— Motion to Me petition in error — Allowance by one judge— Does not give jurisdiction to circuit court.

    1. The specific provisions of sections 4364-30^, and 4364-30,0/1, Revised Statutes, control the prosecution of error proceedings brought to reverse a -conviction for violation of any law prohibiting the sale of intoxicating liquors in any territory or district, or to reverse any judgment affirming such conviction, notwithstanding such provisions are inconsistent with more general provisions of other sections of the Revised Statutes.
    2. By force of the provisions of the above cited sections the allowance by one judge of the circuit court of a motion for leave to file a petition in error to reverse a judgment of the court of common pleas affirming a judgment of conviction for violation of any law prohibiting the sale of intoxicating liquors, does not give to such court jurisdiction to try and determine the errors complained of.
    (No. 10777
    Decided June 26, 1908.)
    Error to the Circuit Court of Greene county.
    Facts are stated in the opinion.

      Mr. H. C. Armstrong and Messrs. Maxwell & Maxwell, for plaintiff in error.
    No brief for defendant in error.
   Spear, J.

The plaintiff in error, Thomas H. Mitchell, was prosecuted before the mayor of the village of Cedarville, Greene county, for a violation of the act of February 23, 1906, entitled: “An act to provide for the' enforcement of local option laws prohibiting the sale of intoxicating liquors as a beverage,” and incorporated in the Revised Statutes as sections 4364-30» to 4364-30zh, inclusive. Affidavit was' filed March 29, 1906, and the trial, beginning April 17, 1906, terminated April .26, 1906, with a finding of guilty by the mayor and a sentence of a fine of $200 and costs and to stand committed to the workhouse at Xenia and labor at the rate of sixty cents per day until the fine and costs should be paid or he be otherwise discharged according to law. From this judgment and sentence error was duly prosecuted by the accused to the court of common pleas of Greene county by which court the judgment of the mayor was affirmed. Within thirty days after the said judgment of affirmance the accused, after proper notice to the state, duly presented his petition in error to the Honorable Theodore Sullivan, one of the judges of the circuit court of Greene county (the court itself not being in session, having theretofore closed its spring term and adjourned sine die), who, on consideration thereof, ordered that said petition in error should be filed in said circuit court and directed an entry of such allowance to be placed on the journal to the effect that for good cause shown leave is given plaintiff in error to file his petition in error, which entry was duly made on the journal of the court and the petition in error filed therein.

At the April term, 1907, of said circuit court, the cause coming on to be heard upon the petition in error, pleadings and transcript of the order and judgment of the court of common pleas, the court, upon consideration, dismissed the petition in error for want of jurisdiction in the court to try and determine the errors complained of for the reason that leave to file the petition in error had not been first obtained as required by law.

• It will be seen, therefore, that the question here is whether or not the allowance by a judge of the circuit court of leave to file a petition in error presented by a person convicted under the sections of the statute hereinbefore referred to, made by such judge in vacation, gives to that court jurisdiction to try and determine the errors complained of; and that is the only question.

It is argued by counsel for plaintiff in error that they took, in the interest of their client, all steps then possible to obtain a review in the circuit court, and ought not to be forbidden opportunity for such review simply because that court was not then in session and would not be for more than thirty days after the rendition of the judgment of the common pleas; that the benign spirit of our law intends to afford the right of review in all cases which, upon application, commend themselves to the court as worthy of review; that, with respect to violations of all penal statutes other than the local option statutes, authority is not confined to the court itself but is lodged in the judges thereof and that an allowance if obtained of leave to file a petition in error gives to the court itself jurisdiction to pass upon and adjudicate the errors complained of; that this spirit and intent is abundantly shown by sections 7356, Revised Statutes, and following, which provide that in any criminal case a judgment of any court inferior to the circuit court may be reviewed in the circuit court, and recognize the authority of one judge of the court to allow the filing in the court of the petition in error, and that to hold in the present case that such authority may not be exercised save by the whole court where as in this case the court could not be reached within the time prescribed is to nullify and defeat the right to prosecute error altogether.

It must be conceded that there is much force in this contention, for, to the judicial mind, especially to old-fashioned people, it will create surprise to find, if it be true, that the opportunity to obtain a review of a judgment of conviction of violation of the liquor laws, which is a misdemeanor, is hedged about with more difficulties, and more impossible conditions, than in a case of felony, burglary or arson for instance, and any court would reach the conclusion that such is indeed the fact with extreme reluctance. And yet it all depends upon statutory provisions. Recurring now to the sections already cited bearing upon the matter of review we find the following:

“4364-300 g. No petition in error shall be filed in any court to reverse any conviction for violation of any law prohibiting the sale of intoxicating liquors in any territory or district or to reverse any judgment affirming such conviction except after leave granted by the reviewing court and no such leave shall be granted except after good cause shown at a hearing of which counsel for the complainant in the original case shall have had actual and reasonable notice.”

“4364-30^/1. Such petition in error must be filed with such reviewing court in not more than thirty days after the judgment complained of, and the case shall be heard by the reviewing court within thirty days from such filing, provided that nothing in this or the preceding section shall be construed to confer any right of review in such cases in addition to that which is now provided bv law.”

Of course it is apparent at a glance that this legislation introduces an incongruous element, which, as counsel insist, does neutralize the ’ benign spirit of the general provisions of our law as to reviews on error, for the existence of which it is difficult to perceive any sufficient reason. It may be, and probably is, important in all liquor legislation, to make requirements as to the conduct of this business which seem arbitrary at first blush but which may be necessary to neutralize and defeat the disposition on the part of dealers to resort to subterfuge and evasion to defeat the purpose of the law, and such provisions, where necessary, are not deemed unreasonable or unduly oppressive. But reasoning which would justify provisions of the kind above indicated does not support or apply to the methods of review in a higher court, which usually are governed by judicial considerations, and which, it would seem, might properly be made uniform as to all offenses of the same grade. But, when all is said, it presents a case of statute against statute, a situation where the rule that where a special statute on a particular subject conflicts with a -more general statute on the same subject the former will be held to prevail. It cannot with any show of authority we suppose be doubted that the question to what extent and in what manner reviews of criminal procedure in the lower courts may be permitted is purely a legislative question, and that, so long as no guarantee or inhibition of the constitution is violated, the extent to which it shall be granted or the manner in which it may be exercised is not a subject of control by the courts, the right to review not being a constitutional right. And it being within the legislative competency to grant or withhold the right'of review on error the exercise of such right, therefore, when granted, may be made subject to such conditions as the general assembly, in its wisdom, may prescribe. Wagner v. The State, 42 Ohio St, 537; The State v. Budd, 65 Ohio St., 1.

Giving effect to the specific provisions of sections 4364-30^ and 4364-3ozh, we are constrained to hold that the allowance by one judge of the motion for leave to file petition in error did not give the circuit court jurisdiction of the case, and that the dismissal of the petition in error by that court was not error.

Judgment affirmed.

Price, C. J., Si-iauck, Crew, Summers and Davis, JJ., concur.


author: Summers, J.

text:
    The State, ex rel. Wilson, v. Pontius et al.

      Article XVII, amendment to Constitution — Act of April 16, '1906 (98 O. L., 271) — Term of sheriff extended — Sheriff not ineligible to succeed himself — Article X, Section 3, of Constitution.

    The object of the constitutional amendment, Article XVII, and of the act of April 16, 1906 (98 O. L., 27Í), passed pursuanj: thereto, was the continuance in office of the incumbents, during the interregnum occasioned thereby, and a sheriff whose term of office was extended under the act, is not • ineligible, under Section 3, of Article X, of the Constitution, to succeed himself for another term.
    (No. 11336
    Decided June 26, 1908.)
    In mandamus.
    The facts are stated in the opinion.

      Mr. Wade H. Ellis, attorney-general, for plaintiff in error; Mr. John A. McMahon and Mr. J. W. Warrington, of counsel.

      Mr. Charlés C. Upham, for defendants in error.
   Summers, J.

The relator, R. Frank Wilson, is the sheriff of Stark county. He was elected in November, 1905, and entered upon the duties of the office on January 1, 1906, and is now serving on the third year of his term, as extended by the act passed April 16, 1906, entitled, “An act to conform the terms of office of the various state and county officers to the constitutional provisions of (relating to) biennial elections.” He has been duly nominated, and his nomination has been duly certified to the defendants, the deputy state supervisors of election in that county, as the Republican candidate for sheriff to be voted for at the election to be held in 1908. The deputy supervisors refuse to place his name upon the ballot, solely because he is now serving his third year in the office and is ineligible to be elected for a term of two years, under Section 3, of Article X, of the Constitution, which provides that no person shall be eligible to the office of sheriff for more than four years in any period of six years.

The relator prays for a writ of mandamus commanding the defendants to execute a certificate of his nomination.

The defendants enter their appearance, waive the issuance of an alternative writ and submit the case upon a general demurrer to the petition.

The question presented requires a construction of the same act and the same constitutional provision that were under consideration in The State, ex rel. Sartain, v. Harris, Governor, 77 Ohio St., 481, and the answer is a corollary to that case. In that case the fact was that the sheriff had served four consecutive years, and the question was, whether by virtue of the act he could serve another year. In the opinion (485) it is said: “It is conceded that this act extends Karb’s term to the first Monday in January, 1909, but it is contended that a vacancy exists by reason of his ineligibility under Section 3, Article X, of the Constitution.” The answer is (487), “The authority given the general assembly to extend existing terms was in legal effect authority to continue the incumbents in office to the end of the extended term, and to limit the power by Section 3, Article X, would prevent the effecting of the purpose of the amendment in the mode therein expressly authorized. These provisions of the amendment were necessary to make it operative. They are merely temporary, and Section 3, Article X, has no application.” In other words, it authorized an extension of eligibility as well as of term. The only difference in the facts of the two cases is, that in this the extension is of the first term. The people in providing, in the constitutional amendment, that the general assembly shall have power to so extend existing terms of office as to effect biennial elections, and the general assembly in extending existing terms did not intend to hand the incumbents of some of the offices an apple of Sodom, or, if the use of current vernacular is permissible, a lemon. The intention was to provide for the carrying on of the government during the interval between the end of terms of office and the new time to be fixed for the commencement of terms of office. Merely to extend terms would accomplish nothing. Authority, constitutional and statutory, existed for the filling of vacancies, but by several decisions of this court, power to continue in office incumbents by an extension of term was denied. In State, ex rel. Kelly, v. Thrall, 59 Ohio St., 368, it is held: “The power conferred upon the general assembly by the twenty-seventh section of the second article of the constitution to provide for the filling of vacancies in office, refers to such vacancies as may occur fortuitously. It does not authorize the creation of an interval between the official terms of persons elected to the office of sheriff.”

This case was followed and approved in the State, ex rel. Attorney-General, v. Beal, 60 Ohio St., 208, where it is held that: “The act of April 19, 1898, ‘To amend Section 1267 of the Revised Statutes’ (93 O. L., 125), postponing the beginning of the official terms of prosecuting attorneys from the first Monday in January to the first Monday in September, and the provision of the first section of the act of April 26, 1898 (93 O. L., 261), to .effect a like postponement as to the office of infirmary director, are void, being in violation of the tenth article of the constitution, which requires that county officers shall be elected, and not within the authority to provide for the filling of vacancies conferred upon the general assembly by the twenty-seventh section of the second article.” And to the same effect is The State, ex rel. Attorney-General, v. Hall, 67 Ohio St., 303, where an attempt was made to extend the term of office of Ihe clerk of court.

Under these decisions the office could be filled for the interregnum only by an election.

To extend the term of an office, in the absence of some disqualifying provision, continues the incumbent in office. Here the extension is authorized by the constitutional amendment. Its purpose was to enable the legislature to provide for the carrying on of the government during the interregnum by continuing incumbents in office, and it would be unreasonable to conclude that in the adoption of the amendment it was not the intention to exempt the authority from limitations that would defeat its purpose; and whether or not such an emergency, as was here presented, was foreseen is immaterial, for the purpose to bridge the interregnum is patent, and the mode of doing so is indicated and is impliedly exempted from any limitations that would defeat the accomplishment of that purpose in the mode prescribed. In authorizing an extension of terms it was not the purpose to provide for a vacancy that might be filled by appointment, but to avoid a vacancy by continuing the elected incumbents in office during the interregnum.

Peremptory writ awarded.

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


text:
    The State of Ohio v. Mullin.

      Sale of intoxicating liquors — Goods delivered to carrier — Sale completed thereby, when — Place of sale is where — Title passes, when — Agency.
    When, pursuant to specific instructions from the purchaser, goods sold are forwarded to him by express, marked C. O'. D., the express company is the agent of the purchaser to receive said goods from the seller, and the agent of the seller to receive their price from the purchaser, and upon delivery to the carrier, title to the goods passes to the purchaser, although he is not entitled to their actual possession until he pays or tenders the purchase price. The sale is complete when the goods are delivered to the carrier, and the place of sale is the place of delivery to it.
    (No. 11017
    Decided June 26, 1908.)
    Error to the Circuit Court of Harrison county.
    At the October term, 1906, of the Harrison county court of common pleas the ' defendant in error, William Mullin, was indicted for selling intoxicating liquor in violation of Section 4364-25, Revised Statutes, commonly known as “The Township Local Option Law.” The accused entered a plea of not guilty, and waived in writing his right to a trial by jury. Thereupon by consent of the prosecuting attorney on behalf of the state, and by the consent of the defendant and his counsel, the cause was submitted to the court upon the following agreed statement of facts which was all the evidence offered in the case:
    “It is agreed upon the part of the state, and upon the part of the defendant and his counsel that the following statement of fact sets forth and embodies all that the testimony in said case shows, to-wit:
    “That more than thirty days prior to September 15, A. D. 1906, the date of the sale of intoxicating liquors, as alleged in the said indictment, the said township of Green, in Harrison county, Ohio, had availed itself of the provisions of Section 4364-24, Section 1, and of Section 4364-25, Section 2, of the Revised Statutes of Ohio, as to local option in townships, and had under the provisions of said sections held an election in compliance with the directions of said statutes, and that at such election, a majority of the qualified electors voting at said election in said township, outside of the municipal corporations therein, voted ‘against the sale/ and that at the said date of the sale of intoxicating liquors, to-wit, September 15, A. D. 1906, and for several years prior thereto, the sale of intoxicating liquors as a beverage, to any person, within said township, and outside of the limits of the municipal corporations therein, other than sales of cider, or sales of wine manufactured from the pure juice of the grape, cultivated in the State of Ohio, and other than sales by a legally registered druggist of intoxicating liquor for exclusively known medicinal, art, scientific, mechanical or sacramental purposes, was and has ever since been prohibited by law.
    “That the records of the township clerk of said township of Green, in Harrison county, Ohio, shows that such election under said township local option .statutes, was held more than thirty days prior to the date of said sale, and the entry and record of the result of said election, as shown by the records of said township clerk, which entry and record were made more than thirty days prior to the date of said sale of intoxicating liquors, and which entry and record were made in accordance with Section 4364-29 of the Revised Statutes of Ohio, show that the majority vote, at such election, was ‘against the sale’ of intoxicating liquors. And that, at the date of said sale of intoxicating liquors, the sale of intoxicating liquors as a beverage, was then and there prohibited and unlawful, except sales of cider, or sales of wine manufactured from the pure juice of the grape, cultivated in the State of Ohio, and except sales of intoxicating liquor, by a legally registered druggist for exclusively known medicinal, art, scientific, mechanical, or sacramental purposes.
    “That said sale of intoxicating liquors by the defendant was not a’ sale of cider, was not a sale of wine manufactured from the pure juice of the grape, cultivated in the State of Ohio, and was not a sale by a legally registered druggist of intoxicating liquor for exclusively known medicinal, art, scientific, mechanical, or sacramental purposes.
    “That the defendant, William Mullin, is a resident of the village of Amsterdam, Jefferson county, Ohio, where he is engaged in the business of dealing in intoxicating liquors, and that on September 15, A. D. 1906, and for a long time prior thereto, the defendant was located in said village, and there legally engaged in said business.
    “That on or about the fifteenth day of September, A. D. 1906, one Howard Dunn, being then and there within the limits of the said township of Green, Harrison county, Ohio, and without the limits of the municipal corporations of said township, by letter mailed to the defendant, William Mullin, and received by the said defendant, at said village of Amsterdam, requested the defendant to ship, by express, one case of intoxicating liquor, to-wit, ‘beer/ to the said Howard Dunn, and, in said letter ordered the said intoxicating liquor to be addressed and shipped to the said Howard Dunn, at Burton station, said station being on the line ■ of the Lake Erie, Alliance and Wheeling Railroad, in said Green township, Harrison county, Ohio, and without the limits of the .municipal corporations of said township, and the said Howard Dunn requested that the said intoxicating liquor be sent to him as aforesaid, stating in said request, that the price of said intoxicating liquor, and express charges on same, and the charges for forwarding the consideration or price of said beer from said Burton station, per the express company, to the said defendant, would be paid by the said Howard Dunn, upon delivery of said intoxicating liquor to the said Howard Dunn, at said station of Burton.
    “That said- defendant, William Mullin, then knowing that the sale of intoxicating liquor, as a beverage, at said station of Burton, in said township of Green, without the limits of the. municipal corporations of said township, was prohibited by law and unlawful, did, on the fifteenth day of September, A. D. 1906, then set apart from his stock, address to, and ship by Adams Express Company, a common carrier, to said Howard Dunn, at the said station of Burton, in Green township, Harrison county, Ohio, and without the limits of the municipal corporations of said township, one case of intoxicating liquor, to-wit, ‘beer,’ to be used as a beverage. Said intoxicating liquor to be delivered to the said Howard Dunn, upon payment by him of the price of said intoxicating liquor, the express charges, and the charges for forwarding said consideration to the defendant.
    “That the said intoxicating liquor was delivered by the said express company, as addressed by the said defendant, William Mullin, to the said Howard Dunn, at said station of Burton, in the said township of Green, Harrison county, Ohio, and without the limits of the municipal corporations of said township, and the said Howard Dunn, on the said fifteenth day of September, A. D. 1906, then and there received said intoxicating liquor, to be used as a beverage, from the said express company, at said station of Burton, and, at the same time and place paid the said express company, for the said defendant, William Mullin, the price aforesaid for said liquor, to-wit, the sum of two dollars, the express charges on same, and the charges for forwarding said consideration to the said defendant.”
    The court found the defendant, William Mullin, guilty as he stood charged in and by said indictment and sentenced him to pay a fine of fifty dollars and to be imprisoned in the Harrison county jail for a period of ten days. The defendant filed his motion for a new trial, which motion was overruled by the court and a new trial refused. Thereupon the defendant, William Mullin, prosecuted error to the circuit court of Harrison county where the judgment of the court of common pleas was reversed and the defendant discharged. To this judgment of the circuit court the State of Ohio prosecutes error.

      Mr. E. S. McNamee, prosecuting attorney, for plaintiff in error.
    In a number of decisions it has been held that for the purpose of determining whether the vendor has violated the liquor laws in force where the vendee lives, a sale C. O. D. is not complete until delivery, acceptance and payment of the price by the person ordering the liquor; and that the common carrier, in all such cases, is the agent of^the shipper. United States v. Shriver, 23 Fed. Rep., 134; United States v. Cline, 26 Fed. Rep., 515; State v. Express Co., 70 Ia., 271; State v. Wingfield, 115 Mo., 428; State v. Houts, 36 Mo. App., 265; Crabb v. State, 15 S. E. Rep., 455; Wagner v. Hattack, 3 Colo., 176; Bank v. McGrew, 59 Fed. Rep., 972; Ramish v. Kirschbraun & Sons, 107 Cal., 659; Baker v. Railway Co., 98 Ia., 438; Refining Co. v. Refining Co., 104 Ky., 559; State v. O’Neil, 58 Vt., 140; O’Neil v. Vermont, 144 U. S., 342.
    Where the buyer is by the terms of the sale bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into possession of the buyer. Bonham v. Hamilton, 66 Ohio St., 90.
    The title in sales of personalty passes when everything which has been contracted to be done has been completed by the vendor and the vendee.
    If anything is left undone by either the vendor or the vendee, the sale is not completed, and the place where this act is completed determines the point where the sale is made. Benjamin on Sales, par. 311, 319, 320, 693, and chapter six on the jus disponendi. Newark on Sales, Section 375.
    If by the terms of the contract, the seller is required to 'send or forward, or deliver the goods to the buyer, the title and risk remain in the seller until the transportation is at an end, or the goods are delivered in accordance with the contract, after which time the title is vested in the buyer. Buckingham v. Dake, 112 Fed. Rep., 258; Iron Co. v. Manufacturing Co., 80 Fed. Rep., 878; Phosphate Co. v. Grafftin, 58 Fed. Rep., 550; Sims v. Railroad Co., 130 N. Car., 556.
    In all sales and shipments of goods where the vendor retains control of the goods at the terminus for the purpose of exacting payment before actual possession by the purchaser is permitted', then the fact of delivery to the carrier is not, of itself, delivery to the purchaser. Village of Bellefontaine v. Vassaux, 55 Ohio St., 323; Emery’s Sons v. Bank, 25 Ohio St., 365; Lane v. Chadwick, 146 Mass., 68.

      Mr. R. H. Minteer, for defendant in error, filed no brief.
   Crew, J.

The law is well settled, in the absence of agreement to the contrary, that the delivery of goods to a common carrier, and especially to one designated by the purchaser, for conveyance to him or to a place designated by him, constitutes a delivery to and receipt by the purchaser; and such delivery if in the usual course of business, or in pursuance of directions given by the purchaser, effects a transfer of .title to the property so delivered. In such cases the carrier is, in contemplation of law, the bailee of the person to whom and not by whom the goods are sent, the latter, in employing the carrier, being considered as the agent of the former for that purpose; Benjamin on Sales (7 Am. ed.), Section 181; Story on Sales (4 ed.), Section 306; 24 Am. & Eng. Éncy. Law, 1071, and cases there cited. When upon the sale of personal property in possession of the vendor the terms of sale have been agreed upon and assented to. by the parties, and the seller on his part has fully performed all things required of him by the terms of the contract, and only delivery remains to be made, the contract of sale between the parties is so far absolute that title to the subject-matter of the sale passes to the purchaser even though he be not entitled to possession of the goods purchased until he pays the consideration agreed upon. Judge Story in his work on Sales, at Section 300, states the law as follows: “Where the seller has performed all that is required of him by the terms of the contract, as to all of the goods, and delivery alone remains to be made, the property vests in the buyer, so as to subject him to the risk of any accident which may befall the subject-matter of the sale. It is not necessary for the seller to deliver the goods to the buyer, in order to transfer the title, since the right of property does not depend upon the actual possession. Although, therefore, the seller has a right of lien upon them and cannot be forced to surrender possession until payment is made of the price, yet the goods may be, nevertheless, the property of the buyer.” The authorities in support of the principles above announced are so uniform and consistent that further citations seem unnecessary. Applying then, to the case in hand, these apparently well settled rules and principles, the sale of intoxicating liquors here in question must, we think, upon the agreed facts in this case, be held to have been made at Amsterdam, and not at Burton Station. The pertinent and essential principles of the law of sales which, applied to the agreed facts, must govern and control in the present case, are clearly and succinctly stated in Pilgreen v. State, 71 Ala., 368, a case directly in point. In that case a conviction was had under a statute making it unlawful to sell intoxicating liquors within five miles of certain churches in Columbiana. The defendant was a licensed liquor dealer doing business at Calera, twelve miles distant. He received by mail an order from one Dollar, requesting that he would send to him at Columbiana, a half gallon of whiskey by the Southern Express Company, marked C. O. D. The defendant filled the order at Calera, there delivered the whiskey to the express company and by the company it was delivered to Dollar at Columbiana, where he paid the price and all charges to the express company from whom the defendant received the price at Calera Upon these facts the supreme court held that Calera was the place of sale. Brickell, C. J., delivering the opinion of the court said: “All dealings between buyer and seller were at Calera. There the offer of the buyer was received, accepted and acted upon, and there every act was done which it was intended the seller should do. The general property in the thing sold there passed to the buyer by delivery to the carrier of his own appointment, though he could not entitle himself to possession until he paid the price to the carrier. The carrier was his agent to receive the thing sold at Calera, and was the agent of the seller to receive the price. It would have been a neglect of duty as a collecting agent, rendering the express company liable to the seller, if there had been a delivery of the whiskey without payment of the price; and if possession had been wrongfully obtained, it may be the seller could have reclaimed it. The general property, however, passed to the buyer by the delivery to the express company at Calera; the risk of loss then passed to him though there may have remained in the seller a special property, and though the buyer could not, without payment of the price, entitle himself to the absolute property, and to the actual possession. * * * A sale, which will be in violation of the statute under which the conviction was had, must, within the designated locality, pass the title; a sale made in a different locality, where the liquor is set apart and delivered to the purchaser, or to a carrier for him, passing title, is not within its words or spirit.”

In State v. Intoxicating Liquors, E. C. Moffitt, Claimant, 73 Me., 278, the claimant, Moffitt. sent an order to a firm in Boston, for whiskey to be forwarded to him by express C. O. D. at Winthrop, in the state of Maine. The whiskey was sent as ordered. Immediately upon its arrival, the package containing the whiskey was seized by the authorities as.liable to confiscation under the Maine liquor law. The claimant tendered the charges to the express company, and intervened in the legal-proceedings claiming the package. The court held he was entitled to it, and ordered it returned to him. In the opinion by Peters, J., it is said: “Undoubtedly the initials C. O. D. mean collect on delivery, or more fully stated, deliver upon payment of the charges due the seller for the price and the carrier for the carriage of the goods. These initials have acquired a fixed and determinate meaning which courts and juries may recognize from their general information. * * * Plere, then, was a sale of the property to the claimant, the price payable on delivery. * * * The title passed to the vendee when the bargain was struck. Any loss of the property by accident would have been his loss. The vendor had a lien on the goods for his price. The vendor could sue for the price, and the vendee upon tender of the price could sue for the property. * * * In this case both the seller and purchaser had a qualified right of possession, the seller upon the purchaser’s neglect or refusal to pay for the goods, and the buyer by paying for the same.” In the case at bar it appears from the agreed statement of facts that the sale in question was made upon a written order addressed to the seller, William Mullin, whose place of business was in the village of Amsterdam. It was there that the offer of Dunn, the purchaser, was received, accepted and- acted upon. Upon receipt of the order, the beer ordered was set apart, and in accordance with the express directions of the purchaser, was delivered to and accepted by, a carrier of his selection, to be transported to him at Burton Station, he, as purchaser and consignee, to pay the cost of transportation. When the order sent by Dunn was received and acted upon by Mullin, and the property ordered had been delivered by him to the express company as requested by Dunn, the contract of sale was so far complete that title to the property passed to the purchaser, and a right of action accrued to the seller for the recovery of the purchase price. The mere fact that the goods were sent marked C. O. D. did not, in this case, constitute the express company the agent of Mullin for the purpose of making delivery to the purchaser at Burton Station, of the goods sold, for in contemplation of law, delivery had already been made at' Amsterdam. The express company, while undoubtedly the agent of Mullin to receive the price, was the agent of Dunn, the purchaser, to receive for him at Amsterdam, the property purchased. Hence, the sale was a sale at Amsterdam, and title to the property sold, there passed to the purchaser. Norris v. State, 25 Ohio St., 217; Commonwealth v. Fleming, 130 Pa. St., 138; Garbracht v. The Commonwealth, 96 Pa. St., 449; State v. Carl & Tobey, 43 Ark. 353; Black on Intoxicating Liquors, Section 434; Higgins v. Murray, 73 N. Y., 252; 1 Parsons on Contracts, Section 533.

The cases of State v. O’Neil, 58 Vt., 140, and The Village of Bellefontaine v. Vassaux, 55 Ohio St., 323, are relied upon by counsel for plaintiff in error as supporting his contention that the sale of intoxicating liquors here in question, was a sale made at the place of destination and not at the place of shipment. Both of these cases, however, are, upon the controlling facts, clearly distinguishable from the present case. In State v. O’Neil, at the time the liquor was delivered to the express company for transportation, there was attached to the bill of said liquor as part of the contract of delivery, the following express written instructions : “Do not deliver the whole or any part of the goods accompanying this bill until you receive pay therefor. * * * If goods are refused, or parties cannot be found, notify the office from whence received with names and dates, and await further instructions.” The court in the opinion in that case, discussing the effect of such a delivery to the carrier, say: “Attached to the very body of the contract, and to the act of delivery to the carrier, was the condition of payment before delivery of possession to the consignee. With this condition unfulfilled and not waived, it would be impossible to say that a delivery to the carrier was intended by the consignor as a delivery to the consignee, or as a surrender of the legal- title. The goods were entrusted to the carrier to transport to the place of destination named, there to present them for acceptance to the consignee, and if he accepted them and paid the accompanying invoice and the transportation charges, to deliver them to him; otherwise, to notify the consignor and hold them subject to his order. It is difficult to see how a seller could more positively and unequivocally express his intention not to relinquish his right of property or possession in goods until payment of the purchase price than by this method of shipment. We do not think the case is distinguishable in principle from that of a vendor who sends his clerk or agent to deliver the goods, or forwards them to, or makes them deliverable upon the o^der of, his agent, with instructions not to deliver them except on payment of the price, or performance of some other specified condition precedent by the vendee.” As showing that the case of Bellefontaine v. Vassaux does not support the contention of counsel for plaintiff in error, but is in entire harmony with the authorities above cited, we need only call attention to the first two clauses of the syllabus in that case; they read as follows: ‘T. The general rule is that title to goods intended to be transported passes from the vendor to the purchaser upon delivery by the former to a common carrier consigned to the purchaser, whether paid for or not. But if the vendor consigns the goods nominally to the purchaser, but actually in care of his own storekeeper, who is to retain them in control and give possession to the purchaser only on payment of the purchase price, then the delivery to the common carrier is not, in law, delivery to the purchaser. 2. Under such circumstances, the shipment being in effect to the vendor himself, the delivery; when it occurs, would be at the storehouse of the vendor; and the transaction would not be a completed sale at the point of shipment.” We are of opinion that upon the agreed facts, the judgment of conviction in the present case was properly reversed by the circuit court and the defendant discharged.

Judgment affirmed.

Price, C. Si-iauck, Summers, Spear and Davis., JJ., concur.