author: Newman, J.

text:
    Murray v. The State, ex rel. Nestor.

      Municipal corporations — Classification—Section i, Article XVIII, Constitution 1912, not self-executing — Section 3497 et seq., General Code, constitutional — Transition from one class to another — Federal census controls, when.

    1. Section 1 of Article XVIII of the Constitution, relating to the classification of municipal corporations, adopted September 3, 1912, is not self-executing.
    2. Sections 3497, 3498 and 3499, General Code, regulate the method of transition of municipal corporations from one class to the other and are not inconsistent with that constitutional provision.
    3. A municipal corporation which had a population of less than five thousand at the last federal census did not advance to a city when it was made to appear by an official census taken by the municipal corporation subsequently thereto that it had a population of more than five thousand.
    (No. 14599 —
    Decided February 2, 1915.)
    Error to the Court of Appeals of Mahoning county.
    This was a proceeding in quo warranto instituted in the court of appeals of Mahoning county.
    On November 6, 1911, the relator, James Nestor, was elected marshal of the village of East Youngstown in the county of Mahoning, for a term of two years, commencing January 1, 1912, and qualified as such marshal and entered, upon the discharge of his duties and continued to discharge them during said term of two years and up to January 1, 1914.
    As shown by the federal census of 1910, East Youngstown had a population of 4,972. On the 27th, 28th and 29th of October, 1913, a census was taken of East Youngstown, by virtue of an ordinance passed by the council thereof under authority of law, and said census so taken showed 7,021 bona fide residents within the municipal corporation of East Youngstown. This census was taken for the purpose of ascertaining the number of liquor licenses to be granted in the municipal corporation.
    At the election held November 4, 1913, James A. Murray, the respondent, was elected marshal of said municipal corporation. On January 1, 1914, the relator, James Nestor, relinquished his position as marshal and turned over the keys of the office to respondent.
    On February 14, 1914, relator filed a petition in quo warranto in the court of appeals of Mahoning county claiming that on October 29, 1913, an official census, duly authorized, taken, authenticated and approved in accordance with law, showed the municipal corporation of East Youngstown to have a population of 5,000 and over, to-wit, 7,021; that said municipal corporation became, at and before the expiration of the term of office of the relator, and then was, a city; that by virtue of law the relator was continued in office until succeeded by the properly elected and qualified officer of the city of East Youngstown, at the next regular election, and that no election of officers of said city having been held, the relator was lawfully entitled to exercise the powers and duties of said office until his successor was legally elected and qualified. It was alleged that the respondent, James A. Murray, on January 1, 1914, usurped.and intruded into the office and ousted the relator therefrom and unlawfully held and exercised said office to the exclusion of the relator under claim of having been elected to said office on November 4, 1913. ,The relator prayed for a judgment of ouster.
    The respondent filed an answer consisting of two defenses, the first being a general denial. In the second defense it was averred that the municipal corporation of East Youngstown had a population of less than 5,000 at the last federal census and that by virtue thereof and of the laws of Ohio relating thereto was of the grade of a village and that no steps could be taken under the laws of Ohio until the next federal census to advance said village to the grade of a city. It was further alleged that on November 4, 1913, the respondent was duly elected marshal of the village of East Youngstown; that he had duly qualified and was commissioned as such; that thereafter, by virtue of said legal qualification and commission, he did, on January 1, 1914, enter upon the discharge of the duties of the office of marshal and that he has continued to discharge the duties from that time.
    The cause was submitted to the court of appeals upon the petition, the answer and the evidence. The court found, among other things, that the census taken-under authority of law in October, 1913, showed 7,021 bona fide residents within the municipal corporation of East Youngstown; that by reason of the population being so shown to be 7,021, on October 29, 1913, East Youngstown became a city and was a city on November 4, 1913, when an election was held therein; that by reason thereof the election of the respondent as marshal of the village of East Youngstown was void and of no effect and that he was guilty of intruding into the office on January 1, 1914, and unlawfully holding and exercising the same from said date, and that relator, James Nestor, was marshal of the village of East Youngstown when said municipality became a city on October 29, 1913, and has been from said date lawfully entitled to hold and exercise the office until succeeded by his proper successor as provided by law.
    There was a judgment against the respondent and he was ousted and excluded from the office, and as plaintiff in error here he seeks a reversal of the judgment of the court of appeals.

      Mr. E. H. Moore; Mr. Charles Koonce, Jr., and Mr. Charles F. Ohl, for plaintiff in error.

      Mr. David G. Jenkins and Mr. L. O. Casey, for defendant in error.
   Newman, J.

Among the-powers conferred upon a municipal corporation, the exercise of which may be provided for by council, is the power to take and authenticate a census of the municipality. Section 3625, General Code. Acting under this authority, the council of the village of East Youngstown caused a census to be taken. The same was duly authenticated and showed the population on October 29, 1913, to be 7,021. The purpose of this census, which is unimportant so far as this case is concerned, was to ascertain the number of saloon licenses to be issued in the year, it being provided in the liquor-license law that any official census taken within the year next preceding that for which licenses are granted may be a basis in determining the number of licenses. From the record before us it appears that the proceedings had in the taking and authentication of this census were regular and in conformity with law, and it was therefore a legal and official census.-

It was the holding of the court of appeals, and it is the contention of counsel for defendant in error, that by reason of the population of East Youngstown being shown by this official census to be 7,021 on October 29, 1913, it became a city on that day and was a city on November 4, 1913, when the election was held therein. If this be true, the election of plaintiff in error as marshal on that date was of no force or effect for the reason that a marshal is not a proper officer of a city.

If Section 1 of Article XVIII of the Constitution, adopted September 3, 1912, effective November 15, 1912, which classifies municipalities into cities and villages, is self-executing so as to change ipso facto from a village to a city a municipality which is shown by an official census to have a population of 5,000 or over, then the holding of the court of appeals and the contention of counsel are correct.

Prior to the adoption of this constitutional provision in 1912, the classification of municipalities was in the hands of the legislature. Its classification at times was most complex and special in its nature. In 1902 the abuse of this power of classification had grown to such an extent that this court in State, ex rel., v. Jones et al., 66 Ohio St., 453, held that the then existing legislation having to do with the classification of municipalities was invalid and repugnant to the constitutional provision prohibiting the general assembly from passing special acts conferring corporate powers. Immediately following this decision a municipal code was adopted in which municipalities were placed in two classes only, cities and villages. Although the legislature from that time kept within constitutional limitations, yet the constitutional convention of 1912, in order to make it impossible for the legislature to resort to a complex classification and that the classification of municipalities should be limited to cities and villages, placed the matter beyond the ■power of the legislature and made it a part of the fundamental law of the state. The convention deemed it advisable to adopt the basis of population which had obtained in this state for ten years. The constitutional provision in question reads:

“Municipal corporations are hereby classified into cities and villages. All such corporations having a population of five thousand or over shall be cities; all others shall be villages. The method of transition from one class to the other shall be regulated by law.”

What is the meaning of the language “the method of transition from one class to the other shall be regulated by law” ? Counsel for defendant in error are insistent that “the method of transition” cannot mean the simple fact of a municipal corporation obtaining or losing population; that it must refer to the way by which the operation of the law passes from one set of officers to another; to the succession of the officers of one class to the officers of another class; that it does not refer to the method by which the population of the municipal corporation, is ascertained, for this, they say, is a fact to be established in any proper or legal way, as are other facts.

It is clear to us that the constitutional convention when it framed this provision, and the people when they adopted it, mindful of the abuse by the legislature of its power of classification, were concerned solely as to classification. The manner of the assignment of the different municipalities to the classes to which they belong they left to be regulated by law. There never had been objection to or criticism of the method used by .the legislature in determining the population of a municipality and there was no evil to be corrected in that respect. The federal census had been the test of population, to which no objection successfully has or can be made.

When it came to the framing of the constitutional provision under consideration there was omitted therefrom certain language which had been used in Section 3497, General Code, the statute classifying municipalities. That section is as follows:

“Municipal corporations, which, at the last federal census, had a population of five thousand or more, shall be cities. All other municipal corporations shall be villages. Cities which, at any future federal census, have a population of less than five thousand shall become villages. Villages which, at any future federal census, have a population of five thousand or more, shall become cities.”

It is to be observed that the words “at the last federal census” do not appear in the constitutional provision, and it is the contention of counsel that this statute is therefore inconsistent and must fall.

As we view it, this language was omitted because it was deemed unimportant by the framers of the constitution how the transition from one class to •the other should take place. They were willing to leave this to the legislature. While “the last federal census” had been the test of population for years, yet the method of transition was to be regulated by law. The legislature could use as a basis either the federal census or any official census which it saw fit to adopt.

The method of transition, we think, has reference to the time as well as the manner of transition. Our attention is called to the fact that in this constitutional provision “having” is used, and counsel argue that by this it was intended that whenever it appears by any official census that a municipal corporation has the requisite population, it instantly becomes a city. We cannot give it that interpretation. It is a mere form of expression and has no legal import. The word “are” is used in the first sentence in the provision, and it can be claimed with as much force that by the use of this word the constitutional framers intended a classification of the municipalities of this state but once and for all time.

Counsel cite cases which they claim support their contention. But the constitutional provisions before the court in those cases differ from the one here. They do not contain the language “the method of transition from one class to the other shall be regulated by law,” or any language which authorizes action on the part of the legislature. For example, the constitution of California, Section 8, Article XI, read:

“Any city containing a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with and subject to the constitution and laws of this state.”

In People v. Hoge, 55 Cal., 612, it was held that legislative action was not necessary to enable the inhabitants of a certain city to act under this provision in the matter of framing a charter, but the court in that case called attention to the fact that the constitution nowhere provided either expressly or by implication for such legislative interference.

Section 3498, General Code, provides:

“When the result of any future federal census is officially made known to the secretary of state, he forthwith shall issue a proclamation, stating the names of all municipal corporations having a population of five thousand or more, and the names of all municipal corporations having a population of less than five thousand, together with the population of all such corporations. A copy of the proclamation shall forthwith be sent to the mayor of each municipal corporation, which copy shall forthwith be transmitted to council, read therein and made a part of the records thereof. From and after thirty days after the issuance of such proclamation each municipal corporation shall be a city or village, in accordance with the provisions of this title.”

Then follows Section 3499, which provides that officers of a village advanced to a city, or of a city reduced to a village, shall continue in office until succeeded by the proper officers of the municipal corporation elected at the next regular election, and the ordinances thereof not inconsistent with the laws relating to the municipal corporation shall continue in force until amended or repealed.

It is under this last section that the defendant in error claimed the right to continue in office, the village of East Youngstown having been advanced to a city, according to his contention, when the population was shown by the census of October 29,1913, to be more than 5,000. But we hold that Sections 3497 and 3498 are not inconsistent with the constitutional provision under consideration. They were in force when this provision took effect and will continue in force until amended or repealed. This is true under the doctrine announced in Cass v. Dillon, 2 Ohio St., 607, and again under the schedule to the constitutional amendments of 1912, which, after fixing the time when the amendments adopted shall be effective, provides that all laws then in force not inconsistent therewith shall continue in force until amended or repealed.

If these statutes are repealed they are repealed by implication, which repeals are not favored. As held in The State v. Cameron et al., 89 Ohio St., 214, before a statute is so repealed the repugnancy must be necessary and obvious, and if by any fair course of reasoning the law and constitution can be reconciled the law must stand.

Our conclusion is that Section 1, Article XVIII, of the Constitution is not self-executing. It indicates a basis of classification, but the time and manner of the transition of a municipal corporation from one class to the other is to be regulated by law.

There are then in the General Code these statutes which regulate the transition of municipalities from one class to the other. Applying them here, the municipal corporation of East Youngstown, according to the federal census of 1910, was a village. This will be its status until it appears from a federal census that it has a population of 5,000 or more and the result of such federal census has been officially made known by the secretary of state and such steps taken as are required by Section 3498, unless under the authority conferred upon it by the constitutional provision the general assembly sees fit to change the method of transition.

Counsel for plaintiff in error challenge the judgment of the court of appeals upon the further ground that the relator relinquished possession of the office of marshal and turned over the keys to the respondent; that from January 1, 1914, the relator never undertook to exercise or perform any duties of the office and that up until the time the petition was filed in the case he made no demand in regard to performing the duties of the office. In view of our holding on the other branch of the case it becomes unnecessary to pass upon this proposition.

For the reasons we have given the judgment of the court of appeals is reversed, and upon the conceded facts in the case judgment is rendered for plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Nichols, C. J., Johnson and Wanamaker, JJ., concur.

Donahue, J., concurs in the first and third propositions of the syllabus and in the judgment, but dissents from the second proposition of the syllabus.

Jones and Matthias, JJ., dissent from the second and third propositions of the syllabus and from the judgment.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    The Hocking Valley Railway Co. v. Helber, Admr.

      Negligence — Two proximate causes — Bridge accident — Liability controlled by duty to maintain bridge — Railroad to maintain guardrails, when — Jury entitled to pleadings, when — Pleadings as evidence — May be used by adverse party, when.

    1. Where two causes combine to produce an injury to an occupant of a vehicle passing over a bridge in a public road, both of which are in their nature proximate, the one being a culpable defect in the bridge and the other an occurrence as to which neither party was at fault, those whose duty it was to maintain the bridge in a reasonably safe condition will be liable ■ to the injured person.

      2. About thirty years prior to the injury complained of the defendant railroad company or its predecessor in title made a 'cut in, under and through a public highway and erected a bridge therein over the cut-and over its railroad; the company thereafter and until the date of the injury maintained the bridge: Held, Under the state of facts, it was the duty of the company to make every reasonable provision for the safety of the public in the construction and maintenance of the bxidge. To this end it was its duty to erect and maintain reasonably substantial guardx-ails on the bridge to serve as a protection to life and property.
    S. It is proper for a court to send the pleadings in a cause to the jury during its deliberations, but the pleading of a party is not admissible in evidence on the trial to prove its allegations. A pleading of one party may be introduced by his adversary to prove admissions or to impeach statements made on the trial.
    (No. 14459 —
    Decided February 2, 1915.)
    Error- to the Court of Appeals of Hocking county.
    This was a proceeding brought by the defendant in error against the railway company to recover damages for wrongfully causing the death of plaintiff’s decedent.
    The second amended petition, after alleging the qualification of the plaintiff and the incorporation and purposes of the defendant, avers that the defendant owns and operates a railroad running from Toledo to Athens, Ohio; that it also owns and operates a branch, known as The River Division Branch, extending southeasterly to Pomeroy, Ohio ; that it or its predecessors in title built and constructed said river division, and in the construction of the roadbed thereof made a cut about 25 feet in depth and about 200 feet in length at or near the residence of one Bates, in Green township, Hocking county, and through and under a public highway known as the Nickel Plate road in said county, which said public highway had been used by the general traveling public prior to said date and now is and ever since has been a public highway used by the general traveling public; that defendant or its predecessors in title caused a bridge to be constructed above, over and across said cut and the roadbed of said branch railway upon and in said Nickel Plate highway, which said highway is a county road, and that said bridge was constructed on said highway at or near the residence of said Bates aforesaid; that said bridge was and is about 52 feet in length and about 11 feet 7 inches in width; that the floor of said bridge is about 23 feet above the top of said branch railway; that the bridge, when constructed by said defendant or its predecessors, was, always has been and still is about 3 feet higher than said public highway originally was on both the east and west sides of the same; that beneath or under said bridge, extending about 50 feet in distance on the north side thereof and about 150 feet on the south side thereof from the center thereof, said cut or roadbed was made; that said bridge was constructed on four wooden frame bents, perpendicular in form; that said bridge was constructed on what is known as the skeleton plan and resembles in form three sides of an octagon; that there was placed upon both the north and south sides of said bridge a frail, weak and unsubstantial railing or banister about 52 feet in length; that about 17 feet in length of the west portion of said bridge was, and for many years prior to said date had been and now is, extremely and unreasonably steep and at a grade of more than ten per cent.; that the west grade or approach to said bridge is likewise extremely and unreasonably abrupt, narrow and steep and difficult of ascent; that on and prior to the 30th of July, 1911, said bridge was defectively constructed in the following particulars: The width thereof was narrower than the usual and ordinary bridge used in said county in the public highways thereof over public places of like character, and was by reason thereof dangerous and unsafe to the general traveling public in the use thereof; that on said day and for many years prior thereto the railing or banister upon or along the south side of said bridge was weak, wabbly, frail and unsubstantial throughout the entire length of said bridge; that the wood thereof was old, weatherworn, brittle and partially decayed and rotten; that one of the upright pieces of said railing or banister, located about 17 feet from the southwest corner of said bridge and upon the same and on the south side thereof, was attached by spikes, which had become loose by reason of age, long-continued use, the rotten and decayed condition of the railing or top thereof and by reason of the inferior quality of the timber from which it was made; that said upright, in being attached to the sill of said bridge, passed through a mortise made near the end of a large plank in the floor of the bridge before being attached to said sill, which mortise had decayed and rotted away; that said upright piece on said date and from the time of its attachment to said sill, on the south side of said bridge had been reduced in size at the place of attachment so that it was only about 1-J inches in thickness and was weak, frail, brash, weatherworn and doty; that said railing along the entire length of the south side of said bridge was not substantially braced and especially said upright piece was wholly unsubstantial and unsupported, nor was it braced in any manner; that said bridge on said day and for many years prior thereto had been out of repair, dangerous and unsafe for use to the traveling public, as aforesaid, of which the defendant had full knowledge, or ought to have known by the use of ordinary care; that the construction and maintenance of said bridge cost greatly in excess of $50; that on said day the plaintiff, in company with his wife, decedent, and their two children, was driving along said Nickel Plate highway in a two-seated, one-horse surrey, in an easterly direction, in a lawful manner towards said bridge and on the same, and without fault upon the part of either of them, and without neglecting any duty and being wholly ignorant of the defective condition of said bridge and banister, said horse, while drawing said conveyance with its occupants over said approach to said bridge and upon and over said bridge, suddenly fell upon said bridge and against said banister, on the south side thereof, at a point about 17 feet east of the southwest corner of said bridge, and that by reason of said defects, as aforesaid —■ the negligence and carelessness of the defendant in constructing and maintaining said bridge and banister, its failure to keep said bridge in repair, the steepness and abruptness of the said west portion of said bridge and the approach thereto, the narrowness of said bridge’ and the frailty and weakness of said banister and upright piece — said banister gave way, broke down and precipitated said horse, vehicle and occupants to the ground and said branch railway below, a distance of about 25 feet, inflicting injuries upon the decedent from which she died. Plaintiff claimed damages in the sum of $10,000.
    A demurrer filed by the defendant to the above second amended petition was overruled by the court.
    The defendant in its answer to the second amended petition, after admitting the qualification of the plaintiff and the allegations as to the beneficiaries, admitted the incorporation of the defendant and its ownership and operation of the roads as alleged, the making of the cut on the Nickel Plate highway, that said highway has been used by the general public as.averred, the construction of the bridge at the point and of the dimensions stated; that it cost more than $50; that on July 30, 1911, the plaintiff with his wife and children was traveling over said highway in a two-horse surrey in a lawful manner towards and upon said bridge; that the horse fell upon said bridge and against the banister on the south side thereof at a point about 17 feet east of the southwest corner of said bridge; that said banister was broken; that said horse, vehicle and occupants fell to the ground upon said branch railway below said bridge; that as a result of injuries received thereby the decedent died, and the defendant denied all the other allegations of the second amended petition.
    For a second defense the answer averred that at and long prior to the said 30th of July, 1911, it exercised ordinary and proper care to keep said bridge and the railings or banisters along the sides thereof in a safe, suitable and proper condition for all usual and ordinary modes of travel and for transportation of persons, vehicles and property over said bridge; that the plaintiff and said decedent were then, and for a long time prior thereto had been, familiar with said bridge and the construction and design thereof and the approaches thereto; that on said date the horse referred to, weighing about 1,200 pounds, driven by said parties, as he was pulling said wagon up to and on said bridge, became choked because of the fact that said parties had put on him a collar which was too small and that solely by reason of the aforesaid, as said horse was ascending the grade towards said bridge and when he was upon the same, he staggered and fell with great force, throwing his entire weight upon and against the railing on the south side of said bridge; that said railing was not intended to be subjected to such an unusual and extraordinary burden or weight, as said plaintiff and his wife well knew; that solely by reason of the aforesaid the railing was broken; that the accident mentioned in the plaintiff’s second amended petition and the injuries therein described resulted proximately from and solely because of the aforesaid; that at said time said railing on said bridge was of good repair and sufficiently strong to withstand all ordinary and usual and proper uses for which it was intended; that the design of said bridge was proper and' correct and one generally approved and followed.
    The plaintiff thereafter filed an amendment to the second amended petition, in which it is alleged that at and prior to the date of the building of the bridge referred to, said highway was in good repair and was 30 feet wide and safe for the public to travel over and upon the same with their horses and carriages without injury to themselves or their property; that ever since said date the defendant and its predecessors in title, failed, refused and neglected to restore said highway to a safe and efficient highway, have failed and neglected to maintain said bridge in such a condition as to render it a safe and proper highway as required by law and have greatly impaired the usefulness of said highway at such point, and prayed as in his petition.
    The answer of the defendant to this amendment was a general denial.
    A reply containing a general denial to the new matter in the answers having been filed, the case was tried to a jury, which returned a verdict in favor of the plaintiff. From the judgment entered upon this verdict error was prosecuted to the court of appeals, by which it was affirmed.
    This proceeding is brought to reverse the judgments of the courts below.

      Messrs. Wilson & Rector; Mr. C. V. Wright and Mr. F. C. Amos, for plaintiff in error.

      Mr. Edwin D. Ricketts and Mr. John C. Pettit, for defendant in error.
   Johnson, J.

The first ground upon which the judgment is attacked is that the demurrer to the second amended petition should have been sustained. It will be observed that the averments of this pleading show that the cut in the public road was made and the bridge constructed by the railroad company about thirty years prior to the date of the accident. The bridge was erected long prior to the passage of the statutes regulating the construction of railroads across highways, above or below grade, and providing for the rights and duties of the company with reference to them. During this period the company and its predecessor maintained the bridge.

Plaintiff in error urges that the case of Comrs. of Hardin County v. Coffman, Admx., 60 Ohio St., 527, declares the principle which should control here. In that case it is held that the commissioners are bound to the exercise of ordinary care to keep the bridges under their control in a safe condition for all usual and ordinary modes of travel and transportation of property over them; but that ordinary care does not require them to anticipate that a bridge will be used in an unusual and extraordinary manner, of be subjected to an unusual or extraordinary burden involving peculiar danger, nor are they liable for an injury resulting from such use. In the case referred to the bridge was broken down by a traction engine which was propelled over it by steam and which was drawing a water tank upon which the deceased was riding. It was held that the use was unusual and not such as the commissioners were required to anticipate. In this case the allegations of the pleading in question are to the effect that the plaintiff and his family were traveling in the usual and ordinary mode and that the accident happened by reason of the defects in the structure, which are specifically set forth. We cannot agree with the contention that the petition shows that the coming in contact by the horse with the banister was so unusual or extraordinary as not to be anticipated.

When the defendant company, or its predecessor, found that it was necessary and, therefore, determined to construct a bridge over the cut which it made in and under the Nickel Plate road, as averred in the amended petition, and undertook to maintain it, it was its duty to erect a bridge and approaches which were reasonably safe for the transportation of persons and vehicles over them and to keep them in a safe condition for all the usual and ordinary modes of travel. It being alleged that these duties were not complied with and that the injury to plaintiff’s decedent was caused by the failure of the defendant in that behalf, it follows that the demurrer to that pleading was properly overruled.

It is also contended by the plaintiff in error that the trial court erred in overruling its motion at the conclusion of the plaintiff’s evidence, and at the conclusion of all of the evidence, to direct a verdict in its favor. It is argued in support of this contention that even if it were shown by the weight of the evidence that the defects in the bridge and the banister existed as alleged, still sufficient appeared from the testimony to show that these defects were not the proximate cause of the injury, but that the fall of the horse was such cause. It is said that if Helber’s horse had not fallen against the banister the injury would not have occurred.

Authorities are cited in the briefs of counsel on the familiar question as to what constitutes proximate cause. There is no substantial difference between them, and it may be said generally that the proximate cause of a result is that which in a natural and continued sequence produces the result and without which it would not have happened. The fact that some other cause operated with the negligence of a defendant in producing an injury does not relieve him from liability, where such other cause would not have produced the injury but for the defendant’s negligence. The court in its charge fairly gave to the jury the rule which should govern them in the disposition of that question.

The issues of fact were determined by the jury whose finding has been affirmed by the courts below. It is sufficient here to say that there was substantial testimony tending to 'show that the banister was weak, rotten and wabbly, and had been for several years; that the railroad company had been requested to put in new guardrails; that the horse was properly hitched, carefully driven and sure-footed. The testimony of Mr. Helber was that "not much of the weight of the horse hit the banister” at the time it gave way and by reason of which the deceased lost her life.

It is contended by the plaintiff in error substantially that the railing or banister of a bridge is constructed as a guide and reasonable protection to prevent one traveling over the bridge from driving off the sides. We think that the duty of the railroad company in the circumstances of this case is not so limited. The company had, on its own initiative, erected and maintained this bridge as a substitute for a safe and convenient wagon road which had been previously provided for the public use. When it did so, it was under the obligation to make every reasonable provision for the safety of the public. To this end, it would seem to be clear that, when the defendant erected the bridge in question, under the circumstances set forth, it was its duty to erect and maintain substantial rails or banisters thereon, and if the injury resulted from a defective banister this was the proximate cause notwithstanding the fact that there may have been some preliminary stumbling of the horse, by reason of which he came in contact with the defective banister, provided the jury believed that such contact was of the character and occurred in the manner described by plaintiff and that plaintiff’s decedent was without fault.

In Walrod v. Webster County, 110 Ia., 349, the plaintiff was thrown from a bridge and injured. Railings were erected on both sides of the approach, which, in consequence of neglect arid the action of the elements, were out of repair and insecure. One of the horses became frightened at' a flash of lightning, settled back in the harness and was pushed by the other horse against the defective railing, which gave way. It was held that an instruction that if the accident would not have happened if there had been a proper railing on the bridge, then the defective railing was the proximate cause of the injury, but that if the accident would have happened had the railing been sufficient, then the railing was not the proximate cause of the injury, and plaintiff could not recover, was proper. The court say: “Or as stated in Gould v. Schermer, 101 Iowa, 582: ‘The mere fact that some other cause operates with the negligence of the defendant to produce the injury does not relieve the defendant from liability. His ' original wrong concurring with some other cause, and both operating proximately at the same time in producing the injury, makes him liable, whether the other cause was one for which the defendant was responsible or not.’ ” Among the authorities sustaining this rule are Hey v. Philadelphia, 81 Pa., 44, 50; Ring v. City of Cohoes, 77 N. Y., 83; Simons v. Tp. of Casco, 105 Mich., 588; and Palmer v. Andover, 2 Cush., 600.

In Faulk v. Iowa County, 103 la., 442, it is said: “While the corporation should not be held responsible for the failure to provide a railing which would successfully withstand all pressure which could be applied by such means, yet it may well be held liable for the failure to provide against the pressure which the jury may rightly have found was applied in this case. In other words, the occurrence in question was not of such an unusual character that it was not the duty of the defendant to provide against it.”

In Hendry v. North Hampton, 72 N. H., 351, 353, it is said: “The contention of the defendants, that because the hole in the road gave to the plaintiff the impetus which carried her over the unrailed and dangerous embankment, therefore the hole — not the unrailed embankment — was as a matter of law-the cause of her injury, is best answered by the authorities, which are so conclusive against the defendant’s contention, at least in this jurisdiction, that to enter upon a discussion of the question would be a work of supererogation.”

In Ivory v. Town of Deerpark, 116 N. Y., 476, the cause of the plaintiff’s complaint was that the defendant failed to provide any barrier along the highway at the place of the accident for the protection of travel. The defendant claimed that the absence of the barrier was not the proximate cause of the injury and that this cause was that the horses were beyond the control of the plaintiff. The court held that there was no error in the refusal of the court to charge that unless the jury could say from the evidence that the accident would have occurred had the horses been going at an ordinary rate of speed or were under control, the defendant was entitled to a verdict, while in case the horses were beyond the control of the plaintiff such fact may have been the proximate cause of the injury, it did not, provided the plaintiff was free from fault, relieve the defendant from liability for the injury to the plaintiff as a consequent result from the negligence of the defendant. In that case there would be two proximate causes of the accident and the responsibility would rest with the defendant if one of such causes was attributable to the fault of the commissioners.

It is further urged by plaintiff in error that the trial court erred in permitting the introduction of the second amended petition and the amendment thereto in evidence. Plaintiff’s counsel, having read to the jury a stipulation by the parties as to what certain witnesses would testify to with reference to the condition of the roadway at the point of the accident, to the competency of which defendant’s counsel objected, also offered in evidence the pleadings referred to. This was permitted over the objection of defendant’s counsel. The pleading of a party in a cause is not admissible in evidence to prove its allegations. The correctness of this proposition would seem to be so manifest as to render the citation of authorities wholly unnecessary. Courts have, however, been called upon to announce it. Green v. Morse et al., 57 Nebr., 391, 77 N. W. Rep., 925; Bell v. Throop et al., 140 Pa., 641. Of course, in a proper case a pleading of one party may be introduced by his adversary to prove admissions made by him or as impeaching statements made by him. The pleadings referred to were, as is usually and properly done, sent to the jury in their consultation room. The court in its charge used the following language: “These pleadings of the parties, that is, the second amended petition and the amendment thereto, the answers of the defendant and the reply of the plaintiff to the second defense therein will be before you in the jury room and you may examine them, but except as to the admissions contained therein, to which I have heretofore called your attention, and except as to the allegations therein referred to in the stipulation of counsel as to what certain witnesses would testify to if present in court testifying, they are not evidence in this case and you must not so consider them.” While we regard the introduction of these papers in evidence as clearly erroneous, yet in view of the state of the record as above shown and also of the state of the proof as to all the material issues in the case, we do not find that their admission was prejudicial.

Plaintiff in error also complains that the trial court charged the jury that “at least three-fourths or nine of your number must agree before you can render a verdict.” The court evidently entertained the view that Section 11455, General Code, as amended February 6, 1913, effective May 14, 1913, which was passed pursuant to Section 5 of Article I of the Constitution, as amended September 3, 1912, applied at the time of the trial, which was after the statute referred to became effective. The action was begun, however, on January 23, 1912.- It was decided in Elder et al. v. Shoffstall, 90 Ohio St., 265, that the amendment referred to does not apply to causes pending in the courts of common pleas on the 13th of May, 1913. The direction of the court was, therefore, erroneous.

The verdict of the jury, after finding the issues in favor of the plaintiff and assessing the amount due, contained the following: “And we do so-

render our verdict upon the concurrence of twelve members of our said jury, that being three-fourths or more of our number. Each of us said jurors concurring in said verdict signs his name hereto this twenty-first day of May, 1913.” It is, therefore, clear that the erroneous instruction of the court with reference to the matter did not work • any prejudice to the rights of the defendant. The presumption is that as each juror signed and joined in the verdict he did so because it expressed his judgment, acting under his oath.

We have carefully considered the other assignments of error and we do not find any prejudicial error in the record. The judgment will, therefore, be affirmed.

Judgment affirmed.

Nichols, C. J., Wanamaker and Matthias, JJ., concur.

Jones, J., not participating, having sat in the court below.


author: Donahue, J.

text:
    The State of Ohio v. Barkman et al.

      Banks and banking — Corporations organised under free-banking act (49 O. L., 41) — Continue business until act repealed, when —Free-banking act not repealed by Thomas banking act (99 O. L., 269) — Effect of Thomas act — Criminal law — Unlawfully converting bank funds — Section 12474, General Code.

    1. Banking corporations organized under the free-banking act of March 21, 1851, and acts amendatory and supplemental thereto, by the express provisions of that act continue a body politic and with corporate succession until the repeal of that act. The effect of the repeal of section 42 of that act was to authorize these corporations to continue the business for which they were organized during their corporate existence.
    2. The act of May 1, 1908, known as the Thomas banking act, does not repeal by implication the free-banking act of March 21, 1851, and acts amendatory and supplemental thereto. On the contrary, section 35 of that act expressly reserves to all such corporations theretofore organized under any law of the state the right to continue business and exercise the powers they possessed at the time of the passage of that act without prejudice and saves to all such associations and corporations all the rights, privileges and powers theretofore conferred upon them, except that after April 1, 1910, they are required to conform their business and transactions to the provisions of that act.
    (No. 14555 —
    Decided February 2, 1915.)
    Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Greene county.
    John H. Barkman, Jacob C. Smith and Charles C. Jackson were indicted by the grand jury of Greene county, Ohio, for intentionally and wilfully converting the funds of The Osborn Bank of Osborn, Ohio, to the use of The J. G. Russell Company, for no use or benefit of The Osborn Bank, with intent to injure and defraud The Osborn Bank. The indictment among other things averred that John H. Barkman, Jacob C. Smith and Charles C. Jackson, on the 24th day of June, 1912, and at all times thereafter herein mentioned, were officers and directors of The Osborn Bank, a corporation duly organized and existing under and by virtue of certain laws of the state of Ohio authorizing free banking, passed March 21, 1851, and acts amendatory and supplementary thereto, and then and there operating and existing under and by virtue of the laws of the state of Ohio, with authority to carry on and transact business as a banking company and with power to receive money on deposit, and was then and there engaged in carrying on business as a banking company and receiving money on deposit.
    A demurrer was filed to this indictment and sustained by the trial court, to which judgment the prosecuting attorney of Greene county at the time excepted, and upon leave a bill of exceptions was filed in this court.

      Mr. Timothy S. Hogan, attorney general; Mr. Frank L. Johnson, prosecuting attorney; Mr. John C. Shea and Mr. Frank Davis, Jr., for the exceptions.

      Mr. Marcus Shoup and Messrs. Mattern & Brumbaugh, against the exceptions.
   Donahue, J.

The indictment alleges that the defendants were directors of The Osborn Bank of Osborn, Ohio, and avers that this bank was “existing under and by virtue of certain laws of the state of Ohio, authorizing free banking, passed March 21, 1851, and acts amendatory and supplemental thereto, and then and there operating and existing under and by virtue of the said laws of the state of Ohio, and with authority to carry on and transact business as a banking company and with power to receive money on deposit, and that the said Osborn Bank was then and there engaged in carrying on business as a banking company and receiving money on deposit in the village of Osborn, Greene county, Ohio.”

The demurrer to this indictment raises the sole question of the legal existence of this bank and its authority to carry on and transact business as a banking company and receive money on deposit. If the free-banking act, passed March 21, 1851, and acts amendatory and supplemental thereto were not in force in this state, on the date laid in the indictment, then the indictment charges no crime and the demurrer was properly sustained. If these laws were in force, then the exceptions of the prosecuting attorney must be sustained.

It is contended by counsel, appointed by the common pleas court to argue the exceptions in this court, that the free-banking act of 1851 limited the duration of the franchise or charters of the banking companies organized under its provisions to twenty-one years from the date of the act. Section 10 of the original act provided that every company so formed should continue a body politic and with corporate succession until the year 1872 and thereafter until the repeal of that act. Section 42 of the act provided that nothing therein should be construed to authorize the continuance of banking business under that act after the year 1872. This section, however, was' specifically repealed on the 24th day of April, 1879. The only possible purpose of this repeal must have been to permit companies organized under this act to continue business under the original act. At all events that was the effect of the repeal of this section. The right of banks, organized under the free-banking act of 1851, to continue the banking business after 1872 is no longer an open question in Ohio. In the case of In re Bachtel, 11 C. C., N. S., 537, it was held that this original free-banking act was still a valid and constitutional act, undér the provisions of which the petitioner for writ of habeas corpus might be prosecuted. That judgment was affirmed by this court without opinion, and the supreme court of the United States refused to allow a petition in error to be filed.

It is further contended, however, that since the decision in the Bachtel case the free-banking act has been repealed by the Thomas banking act, passed May 1, 1908, by implication, and particularly by section 36 and section 91 of that act. Repeals by implication are not favored. It is only when a statute is in clear conflict with existing legislation upon the same subject-matter that the existing legislation will be held to be repealed by implication by the later act. Goff et al. v. Gates et al., 87 Ohio St., 142; Thorniley, Auditor, et al. v. State, ex rel. Dickey, 81 Ohio St., 108; Eggleston et al. v. Harrison, Assignee, 61 Ohio St., 397, 404.

Section 36 of the Thomas banking act provides that all banks, savings banks, savings societies, societies for savings, savings and loan associations, safe deposit companies, or trust companies, savings and trust companies, and combinations of any two or more of such corporations, heretofore incorporated in this state and having paid in the amount of capital stock required by this act to enable them to commence business may, if they so elect, avail themselves of the privileges and powers conferred in that act. The method is provided for certifying such election to the secretary of state and superintendent of banks, and it is further provided that no such election shall be made except upon the vote of at least two-thirds of the capital stock at a meeting of the stockholders, thirty days’" notice of which meeting, and of the business to come before it, had been given by a majority of the directors in a newspaper published and of general circulation in the county where such corporation has its principal place of business. This section further provides that after April 1, 1910, every such corporation or association shall in all respects conform their business and transactions to the provisions of this act. This provision does not conflict with the free-banking act of 1851. It does not declare that banking companies organized under that act shall go out of existence, but rather it is provided that they shall in all respects conform their business and transactions to the provisions of this act. In other words, it clearly contemplates that certain of the corporations and associations named in section 36 may not elect to avail themselves of the privileges and powers conferred in the Thomas act, and it further contemplates that, notwithstanding their failure to so elect, these corporations shall still have “business and transactions,” and it provides that they shall in all respects conform this business and these transactions to the provisions of that act. It is not important whether the phrase “every such corporation or association,” in section 36 of the Thomas act, refers only to those availing themselves of the privileges and powers conferred by that act or includes all banking corporations named in the earlier part of that section, regardless of whether they avail themselves of its provisions or not, because section 91 of the same act clearly provides that every banking company, savings bank, savings and loan association, savings and trust company, safe deposit and trust company, society for savings, savings society, and every other such corporation or association except building and loan associations, having the power to receive and receiving money on deposit, then existing and chartered or incorporated, or which may after the passage of that act become incorporated, shall be subject to its provisions, and further provides that no such corporation or association having a less capital stock than the minimum amount provided in section 2 shall be required to increase its capital stock in order to conform to the provisions of that section, but that no such association or corporation shall' avail itself of any of the privileges and powers conferred by that act until it has complied with the provisions of section 36, and that no corporation or association shall be required to comply with the provisions of sections 1 to 77, inclusive, of the Thomas act before April 1, 1910.

It is insisted because it may not be required to comply with the provisions of sections 1 to 77, inclusive, of the Thomas act before April 1, 1910, that necessarily it must comply with these provisions after that time or go out of business, but if this construction were the correct one, still it does not affect the question before us, because there is no provision in this section that the failure to comply ipso facto forfeits the charter of a banking company theretofore established and that thereafter it will have no power or authority to transact a banking business. The most that could be claimed for such construction is that the state of Ohio could, if it elected so to do, compel such banking company to comply with the provisions of sections 1 to 77, inclusive, of the Thomas act, or have its charter declared forfeited by a court of competent jurisdiction. There is no claim that that has been done in this case. Neither section 36 nor section 91 of the Thomas act is in conflict with the provisions of the free-banking act, and neither of these sections, nor both together, effect a repeal by implication of the free-banking act of 1851 and laws amendatory and supplemental thereto.

If there were any doubt whatever upon this proposition all doubt would be removed by the provisions of section 35 of the Thomas act. That section provides in plain and unequivocal language that all banking companies theretofore incorporated under any laws of this state may continue their business and the exercise of the powers they now have without any prejudice to any of the powers acquired under the acts under which they were incorporated, and there shall be saved to such corporations or associations all the rights, privileges' and powers heretofore conferred upon them. This makes the proposition too plain to require any further discussion. The Thomas act not only does not repeal specifically or by implication the free-banking act of 1851 and laws amendatory and supplemental thereto, but it expressly provides that all banking corporations organized under the provisions of that law, or any other law of the state, shall have the right to continue business and exercise the powers they possessed at the time of the passage of the Thomas act without prejudice, and further specifically provides that there shall be saved to all such associations and corporations all the rights, privileges and powers theretofore conferred upon them.

The judgment of the common pleas court sustaining the demurrer to the indictment was erroneous, and the exceptions of the prosecuting attorney thereto must be sustained.

Exceptions sustained.

Nichols, C. J., Johnson, Wanamaker, Newman, Jones and Matthias, JJ., concur,


author: Nichols, C. J.

text:
    Merrick v. Ditzler.

      Contracts — Compensation for services by member of family — No implied obligation, when — Express contract necessary, when — ■ Facts and degree of proof to establish recovery — Written or parol contracts.

    1. In an action to recover compensation for services when it ■ appears that the plaintiff was a member of the family of the person for whom the services were rendered, no obligation to pay for the services will be implied, and the plaintiff cannot recover in such case unless it be established that there was an express contract upon the one side to perform the services for. compensation and upon the other side to accept the services and pay for them.
    2. Such contract may be in writing or it may rest entirely in parol and it may be proved by direct or indirect evidence. If the defense is made by the personal representatives of a deceased person, the contract, whether in writing or parol, must be established by clear and convincing proof.
    3. Where the party who is alleged to have made such express contract is a living person, defendant in the suit and competent to testify, it is sufficient in order to entitle the plaintiff to recover that the contract, whether in writing or in parol, be established by the preponderance of the evidence. {Hinkle et al., Exrs., v. Sage, 67 Ohio St., 256, distinguished.)
    (No. 14194 —
    Decided February 9, 1915.)
    Error to the Court of Appeals of Allen county.

      Messrs. Welty & Downing, for plaintiff in error.

      Mr. T. R. Hamilton and Mr. W. H. Leete, for defendant in error.
   Nichols, C. J.

Plaintiff in her second amended petition alleges that in July, 1899, she, being ten years of age, was taken from the children’s home in Allen county by defendant and placed in defendant’s family as a servant, and that in July, 1903, defendant promised and agreed to pay plaintiff the sum of $500 and furnish her clothing and board provided she would remain in his family until she reached her majority; that she performed her part of the contract and remained with defendant’s family until she arrived at the age of eighteen; that during all of said time she performed work and labor in the hay, wheat and corn fields, cared for defendant’s children and attended to her household duties. Alleging that no part of said sum had been paid she asked judgment therefor.

Defendant, answering this petition, averred that the plaintiff entered his home as a member of his family and continued and remained a member of and part of defendant’s family until after she reached her majority, and was accepted as such, being provided in common with his own children the necessities of life, and that both plaintiff and defendant during all of said period performed such reciprocal duties and obligations devolving on them and each of them incident to the family relation and without expectation of compensation, other than participation in the benefits that accrued to her as a member of the family and household of defendant. Defendant specifically denied that he at any time agreed to pay plaintiff the sum of $500 for any service she might perform or any other sum whatever. Verdict was had for the full amount claimed in the petition.

The court of appeals reversed the judgment of the common pleas, whereupon the plaintiff in error prosecuted error to the supreme court of Ohio, seeking a reversal of the judgment of the court of appeals and a reinstatement of the judgment of the court of common pleas.

The evidence clearly shows that the plaintiff in error, although unrelated to the defendant Ditzler, was nevertheless a de facto member of his family, enjoying and sharing the comforts of the Ditzler home and assisting in the household duties in all their detail, and she therefore comes within the rule established in Ohio in the first proposition of the syllabus of Hinkle et al., Exrs., v. Sage, 67 Ohio St., 256, and cannot recover for services so rendered while a member of the family in the absence of an express contract upon her part to perform the services for compensation and upon the part of Ditzler to accept and pay for such services.

The court of appeals of Allen county reversed the judgment of the court of common pleas for two reasons, closely corelated.

First. Because the court, although requested by the defendant below, refused to give the following special charge to the jury: “If it shall appear that the plaintiff was a member of the family of the defendant from about the first day of July, 1903, until she arrived at the age of eighteen years, performing during such time ordinary services as a member of such family for and in behalf of the defendant and his family, no obligation to pay for such services will be implied and she can not recover therefor unless it be established that there was an express contract upon the one side to perform the services for compensation and upon the other side to accept such services and to pay therefor and such contract may be in writing or it may be verbal, and it may be proven by direct or indirect evidence, but to enable the plaintiff to recover the contract must be established by clear and unequivocal proof.”

Second. Because the court in its general charge to the jury stated that plaintiff might recover, providing she had proven, by a preponderance of the evidence, the contract in its terms, as set forth in the petition, and that she performed her part of the contract and that the defendant agreed to do the things she alleged in her petition and that he has failed so to do.

The refusal to give the special charge would be logically followed by giving the law as contained in the general charge. The point in dispute has to do with the applicability to the facts in the case at bar of the second proposition of the syllabus of Hinkle et al., Exrs., v. Sage, supra, and, if applicable, counsel for plaintiff in error now challenges the soundness of the doctrine of such second proposition, which reads: “Such contract may be in writing or it may rest entirely in parol, and it may be proved by direct or indirect evidence; but to entitle the plaintiff to recover, the contract must be established by clear and unequivocal proof.”

First. It is contended that the doctrine of the Hinkle case, wherein it would require an express contract, even if in writing, to be clearly and unequivocally proven, is placing an unwarranted burden on the complainant.

Second. It is further contended that if the contract be express but in parol, it is sufficient for the purpose of the proper administration of justice to employ the phrase “clear and convincing”' rather than “clear and unequivocal” as to the degree of proof.

Third. The claim of nonapplicability of the law of the Hinkle case to the case at bar is based on the fact that in the Hinkle case the suit for services was had' against the executors of an estate of a deceased person, while in the case at bar the party in whose behalf the services were rendered defends in person.

With respect to the first contention it must be conceded that it is not without merit. The term “unequivocal” is defined to mean, among other things, “without doubt,” “clearly demonstrated,” “free from uncertainty.” It implies proof of the highest possible character, equaling, if not exceeding, the proof required of the state in a criminal proceeding. It imports proof of the nature of mathematical certainty — something that in human affairs is all but impossible to obtain.

In the ordinary civil case the degree of proof, or the quality of persuasion as some text-writers characterize it, is a mere preponderance of the evidence. Indeed, the supreme court of Ohio, in The C., H. & D. Ry. Co. v. Frye, 80 Ohio St., 289, reversed a judgment of the lower court in that the trial judge charged the jury “that unless the party upon whom the burden rested has satisfied your minds by a preponderance of the evidence recovery could not be had,” the supreme court holding that such instruction imposed a degree of proof greater than a mere preponderance.

In criminal cases in all civilized countries the degree of proof is enhanced beyond that of civil cases in the degree that the state has a more jealous concern for the lives and liberties of its inhabitants than it can possibly entertain for property rights. The burden of all such prosecutions is to prove every essential element of the crime beyond a reasonable doubt. There is, however, a well-recognized intermediate degree of proof required in a certain class of cases — a stricter standard, generally termed “clear and convincing” — cases where the charge of fraud is involved; proving the existence of a lost or spoliated will; an agreement to bequeath by will; mutual mistake sufficient to justify reformation of an instrument; engrafting of trusts; establishment of an equitable mortgage out of deed absolute on its face, and kindred questions.

This tendency of courts to employ in the. exceptional civil case more emphatic terms than “clear and convincing” is criticised by many standard writers on the subject of evidence. Wigmore, for instance, says, volume 4, section 2498: “The chief topic of controversy has been whether in certain civil cases the measure of persuasion for criminal cases should be applied. Policy suggests that the latter test should be confined to its original field, and that there ought to be no attempt to employ it in any civil case.”

It would seem that in cases of the nature suggesting a higher degree'of proof than that characterized as a mere preponderance, the ends of justice would be best met by the use of the phrase “clear and convincing.” Any greater burden in civil cases of the peculiar nature justifying such requirement of a higher degree of proof than a preponderance would work a hardship and injustice.

We are constrained to think that if the attention of the court, when it was announcing the rule in Hinkle et al., Exrs., v. Sage, supra, had been directed to the obvious distinction between a claim against a deceased person and one against a living person, able to testify and assist in the preparation of his defense, the proposition as to the degree of proof declared in the second proposition of the syllabus would have been modified. We feel it our duty now to make the modification indicated.

The second contention, that if a contract for services rendered by one member of a family to another of the same family be in writing, then the reason requiring any higher degree of proof than a mere preponderance no longer obtains, is also of force.

If a father wishes to reward a faithful daughter for the sacrifice of the best years of her life in filial devotion and, not content with loose expressions of gratitude and promise to pay, reduces his desires to writing and thereby solemnly agrees to pay for the daughter’s services, why such an express contract should be supported by proof of a higher character than that employed in the ordinary civil action is difficult to understand.

It is no answer to the proposition that services of this character should not be prompted by avarice or any expectation of reward and that motives of affection and duty should prompt their performance. The law fosters and protects the domestic relation; puts it on a high plane of dignity when it says that services rendered between members of the same family shall be presumed to be.gratuitously rendered even though such services may be performed at the express request of the person receiving the benefit. Such services are too sacred to be commercialized into a contract to pay by implication. But there is no sound reason calling for a rulé that one member of a family may not contract in writing to pay another member of that family for services of such a nature, and a contract so made and performed ought not to be burdened with any peculiar degree of proof for its enforcement. It is just as proper that a man should be allowed to make his own contract as it is that he should make his own will. There being, however, the legal presumption that such services were rendered gratuitously, theoretically the evidence to overcome the presumption, even if the contract be in writing, must be clear and convincing; but practically, since the evidence of the intention of the parties has been reduced to writing, the writing itself furnishes the proof of the degree characterized as clear and convincing and satisfies the requirements of the law in this respect.

It is urged by counsel for defendant in error that since the second proposition of the Hinkle case, supra, makes no distinction as to the defense being made by a living person party to the contract as against a defense by one’s personal representative, the trial court was bound by the law of that case and should have given the special instruction, since it conforms in all respects to the law of that case. It can be said that, where the facts are substantially similar, the inferior court must yield its convictions if antagonistic to the law as defined by the court of last resort, but if the controlling facts are not the same there is no such duty laid on the trial judge. It must be admitted that the second proposition of the syllabus in the Hinkle case makes no distinction as to degree of proof between the defense of the living and the dead, and a consideration of the office of a syllabus and its binding force would be suggested. A syllabus is the law of the case establishing principle and doctrine, binding alike on citizens and courts, both inferior and of equal rank. The primary inquiry should be: Are the facts substantially similar? And if not, Is the reason that would impel the establishment of the rule of proof the same in the one instance as the other ?

In the case of Admrs. of Gavit v. Chambers and Coats, 3 Ohio, 495, the court say: “No maxim of jurisprudence is of more'universal application than that where the reason is the same the law should be the same,” and in the case of Orr v. Bank of the United States et al, 1 Ohio, 36, the old Latin maxim, Anglicized, is employed: “When the reason of the law ceases the law itself ceases.”

In the case of Williams v. Roberts et al, 5 Ohio, 35, Hitchcock, J., says: “The principal reliance of the counsel for the complainant is upon case of Tiernan v. Beam, etc. As before remarked, we believe that case to have been correctly decided, and we should feel ourselves bound by its authority. But we are unwilling to extend it beyond a case similarly situated.

In the opinion of Davis, J., in the Hinkle case, supra, eight authorities of other jurisdictions are cited as supporting the doctrine there established, and an examination of those cases develops the fact that without exception the action was defended by the personal representatives of a deceased person. No case is there relied on, nor is there any cited to the court in the case now under consideration, establishing the doctrine of the Hinkle case as to degree of proof where defense in an action for recovery for personal services by one member of a family, against another member is made by a living person. Moreover, the reasons advanced for the establishment of this doctrine do not obtain where both parties to the action are living persons. Those reasons are that “Cases of this kind are odious and are not favored by the courts because they afford opportunity for fraud against the estates of deceased persons and great temptation to perjury, by disappointed or avaricious relatives.” Hinkle case, supra, page 262.

In Candor’s Appeal, 5 Watts & Serg. Rep., 513, 515, Rogers, J., says: “In Walker’s Estate, we took occasion to express the reluctance with which we listen to claims for wages by a son against the estate of a deceased parent, and subsequent experience has not changed or modified the opinion then entertained. It is pregnant with danger, as we verily believe, as well to the rights of creditors as to the other heirs.”

In Zimmerman v. Zimmerman, 129 Pa., 229, it is held: “To support a claim for nursing or other services such as filial duty and common humanity require a son to render, there must be better proof than loose declarations of gratitude and of an intention to compensate, made by a father in his last sickness.” Similar observations will be found in all the cases touching on the point in question.

The court is of the opinion, therefore, that the trial judge, in view of the facts developed in the case at bar, was justified in -declining to follow the rule of the Hinkle case, supra, and was correct in his view of the law when he declined to give the special instruction and in limiting the degree of proof to the requirement of the ordinary civil action.

The first proposition of the Hinkle case, supra, is approved as the law of Ohio in all its vigor.

The second proposition of the syllabus should be limited in its application to cases where the defendant is the representative of a deceased person, and it is suggested that employment by the judge in charging jury of the term “clear and convincing” would be happier than “clear and unequivocal.”

Attention is called to the fact that the court in its very latest utterance on the subject employed the standard term “clear and convincing” in a case of a nature that would demand the highest degree of proof available in a civil case. See Spengler v. Sonnenberg et al., 88 Ohio St., 192, the third proposition of the syllabus reading: “Where the express authority of an agent to sign an agreement in writing for the sale of lands rests in parol, the proof must be dear and convindng not only of such parol authority, but also that the authority was such as to permit the inclusion of all of the material terms which are embodied in the instrument.”

We think that a due regard for the recognized value of uniformity in legal rules requires us to point out the incorrectness in the use of the word “unequivocal.”

The term “clear and convincing” has come to have a well-defined meaning with the bench and bar. It indicates a degree of proof required in civil cases such as we referred to less than the degree required in criminal cases, but more than required in the ordinary civil action.

The needless multiplication of words in explana-' tion to a jury of the degree of proof required in a cause in hearing instead of assisting often operates to mislead and confuse. Experience of two centuries clearly indicates that in the ordinary civil cases the degree of proof be characterized as “a preponderance,” in the exceptional civil case of the type hereinbefore indicated it should be “clear and convincing,” and in the criminal case “beyond a reasonable doubt.”

The judgment of the court of appeals must in consequence be reversed and that of the common pleas affirmed.

Judgment reversed.

Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


author: Matthias, J.

text:
    Gleason v. Bell.

      False representations — Sale of real property — Purchaser entitled to recover, when — Pleading—Wife bound by husband’s representations and acts, when.

    1. Where a purchaser was induced to buy and pay for a city residence, by false representations made to him by the vendor as positive statements of fact clearly implying knowledge of the owner of the truth of the facts stated, and made under such circumstances that the vendor should have known of the falsity of the representations, and they were of such a nature as to affect the character, utility and value of said property, and the purchaser had a right to and did rely thereon, and suffered damage by reason thereof, he may recover. In such a case an averment that the vendor knew the representations to be false and made them with intent to deceive is not essential.
    2. If a woman permit her husband to manage and make contracts for sale of her property as his own and, in pursuance of her authority, he makes a sale of her property to one whom he induces to purchase by statements and representations relative to the character, utility and value of the property, upon which the purchaser would have a right to rely as coming from the owner, and she accepts the benefits of the contract and makes conveyances to the purchaser so procured, she is bound by the representations made.
    (No. 14162 —
    Decided February 23, 1915.)

      Error to the Court of Appeals of Cuyahoga county.
    On October 21, 1911, the defendant in error, Myrtle M. Bell, filed her petition in the court of common pleas of Cuyahoga county, as follows:
    “Myrtle M. Bell, the plaintiff, for her cause of action against the defendant, says that on and prior to the 18th day of August, 1907, the defendant, Mary A. Gleason, was the owner of a house and lot at No. 38 Taylor road in the village of East Cleveland, Cuyahoga county, Ohio, which said lot was located on the southwesterly side of Taylor road, beginning at a point 352 feet distant in a southeasterly direction from the southeasterly line of Euclid avenue. Said lot was 40 feet front on Taylor road, 120 feet deep, and 32.61 feet wide in the rear.
    “Second: She says that on and immediately before said 18th day of August, 1907, the defendant’s husband, Michael J. Gleason, represented to her that he was the owner of said house and lot; that the same was unencumbered except by mortgage for $3000.00, held by The Citizens Savings and Trust Company of Cleveland, Ohio; and he offered to sell the same to her and to pay the interest on said loan to October 15th, 1907, and to pay the taxes for the year 1907, and to make numerous additions and alterations thereto before the first day of October, 1907, if the plaintiff would assume the payment of said mortgage and would pay to him the sum of $2000.00 in monthly installments of at least $50.00 per month, and the further sum in cash of $1600.00. As an inducement to plaintiff to accept his offer aforesaid, he represented to her that the property in that neighborhood, fronting upon Taylor road, on both sides, between it and Euclid avenue and beyond it on Taylor road, and the property in the rear of it, fronting on Charles road, between it and Euclid avenue, was an exclusively residence district, and that he himself owned the greater part thereof; and that all of said property was subject to conditions and restrictions binding upon the owners thereof, to the effect that it could be used for residence purposes only; that no building could be erected thereon less than two and one-half stories in height, with the roofs of No. 1 black or green slate, or nearer than two feet to the southerly line of the lots, or more than two and one-half feet therefrom; that the front line of porches could not be nearer than twenty feet from the westerly line of Taylor road; that no foundation of any house could be less than 34 x 30 feet, nor more than 38 x 24 feet; that no fence or enclosure of any kind could be erected or placed within sixty feet from the street line; and that no double or two-family house, terrace, or apartment, could be erected or placed thereon. He represented to her that the lots fronting on Taylor road, immediately to the northwest of the premises in question, were then owned by one Barnes; that they were subject to the same restrictions and conditions hereinbefore recited; and that all the property between the Barnes lots and Euclid avenue was subject to existing and valid restrictions and conditions as aforesaid. The lot in question was then improved by a residence complying with the terms of said restrictions and conditions, and was located immediately beyond a bend in Taylor road, which with said restrictions and conditions would insure to the occupants of said lot and the house thereon an uninterrupted view towards Euclid avenue and the adjoining territory. She .says that at the time, the neighborhood of said lot was one highly desirable for residence purposes by reason of its proximity to Euclid avenue, a main highway of local and national reputation for its beauty and importance.
    “Third: She says that she relied entirely upon the truthfulness of the representations so made to her by said Michael J. Gleason, and entered into an agreement with him on the 18th day of August, 1907, by her husband, Herbert W. Bell, who acted for her as her agent and attorney, to purchase said property upon the terms and conditions hereinbefore recited and then paid to him the sum of $25 to apply upon the cash payment. She says that on or about the 20th day of September, 1907, the said Michael J. Gleason furnished her with a statement regarding the title to and incumbrances upon the premises, aforesaid, made by The Guarantee Title & Trust Company of Cleveland, Ohio, on the 20th day of September, 1907, which said statement contained a recital that the premises in question and other premises deeded to the said Mary A. Gleason on July 6th, 1907, by deed from one George Davies, did contain the restrictions and conditions aforesaid, to be binding upon the heirs and assigns of the grantees and to run with the land. She says that the premises in question had originally been represented to her by the said Michael J. Gleason to be forty feet in width throughout, and that on disclosure by said statement that they were of less width, it was agreed that the plaintiff could have a credit of $175.00 on the cash payment to be made by her in full satisfaction of the failure of said lot to accord with the representations of the defendant in that respect.
    “Fourth: She says that after the making of said agreement of August 18th, 1907, by the statement of title aforesaid and otherwise, she became aware that the legal title to said premises was vested in the defendant, Mary A. Gleason, and that Michael J. Gleason in making said agreement of August 18th, 1907, was acting for his said wife, Mary A. Gleason, as his undisclosed principal, and she says that relying solely upon the representations aforesaid and without further search, knowledge, or disclosure, she accepted, on September 23rd, 1907, the warranty deed of the defendant to her of the premises aforesaid, containing said restrictions and conditions and paid to her the consideration then agreed upon to be paid by this plaintiff and executed and delivered to the defendant her note and mortgage deed to secure the same for the unpaid portion of said purchase price, and assumed the payment of said mortgage to The Citizens Savings & Trust Company; that she did, on or before January 16th, 1908, comply, with all the requirements and conditions of her agreement with the defendant and did fully satisfy her indebtedness to her.
    “Fifth: She says that thereafter there was constructed upon the lots adjoining the premises so conveyed to her, upon the north, and represented to her to be owned by one Barnes, two two-story apartment houses, within less than fourteen and nine feet, respectively, from the street line of Taylor road; that one of said apartment houses was built within six inches of the southerly line of the lot adjoining this plaintiff’s property; that between said lots so owned by Barnes, and Euclid avenue there -has since been constructed a four-story flat apartment house within six feet from the street line of Taylor road; that there has since been constructed upon the property at the corner of Euclid avenue and Charles road, represented to her to be owned by said Gleason, and upon the property fronting on Charles road, in the rear of said corner property, three flat apartment houses, all of said four last-named flat apartment houses are constructed on property which the said Michael J. Gleason represented to her, as aforesaid, to be subject to the conditions and restrictions hereinbefore named.
    “Sixth: As soon as she became aware that the construction of such flat apartment houses was threatened on the premises aforesaid, she says that she caused an investigation to be made and then for the first time learned that the representation made to her by the said defendant, as aforesaid, concerning the conditions and restrictions upon said property, were false and fraudulent, as they were in fact, and that no such restrictions or conditions, binding upon the heirs and assigns of the then owners of the land, or running with the land, in fact, existed or had ever been created.
    “Seventh: She says that immediately upon.the purchase of said' premises she and her husband moved into the house thereon, and ever since, with their family, have occupied the same as their home; that by reason of the erection of said flat apartment houses the dwelling house so occupied by her, and the lot aforesaid, 'have been materially deprived of light, air and view; their utility to her has been seriously lessened and impaired and their value greatly diminished; to her damage in the sum of two thousand dollars ($2000).
    “Therefore she prays judgment against the defendant in the sum of two thousand dollars.”
    A demurrer to the petition was sustained by the court of common pleas on the ground that the petition did not state facts sufficient to constitute a cause of action. Defendant in error not desiring to further plead, judgment was entered in favor of plaintiff in error.
    The court of appeals reversed the judgment of the court of common pleas and remanded the cause for further proceedings. Thereupon a petition in error was filed in this court seeking to reverse the judgment of the court of appeals.

      Mr. Walter C. Ong and Mr. Howard A. Couse, for plaintiff in error.

      Mr. Norton T. Horr, for defendant in error.
   Matthias, J.

The questions presented arise from the contention that the petition fails to state a cause of action in that no fraudulent intent or scienter is alleged, the representations complained of were not material, were not within the authority of the agent making them and that the plaintiff had no right to rely thereon.

The claim made by the plaintiff in her petition is in substance that the husband of the defendant, having the management of her property and acting in regard thereto with her authority, representing himself as the owner thereof, induced the plaintiff to purchase said property, a residence in the village of East Cleveland, by means of certain false representations as to the building restrictions in the immediate vicinity of said property, which materially affected the character, utility and value of said premises; that such representations were made as positive statements of fact and were relied upon entirely by the plaintiff. Under the circumstances detailed in this petition it is not incumbent upon the plaintiff to aver and prove that the defendant knew the representations were false and made them with intent to deceive. The facts' set up in this petition show that the party making the representations should have known whether they were true or false, and further show that they were made not as an expression of opinion but as positive statements of fact, with the intention that they should operate as an inducement to the sale of said premises. The recital of the transaction in the petition sufficiently shows that the representations were so made as to imply that the maker knew them to be true and intended that his statements should be so understood, believed and relied upon and operate as an inducement to the purchase of the premises.

“A positive statement implies knowledge, and if the party who makes it has no knowledge on the subject, he has told scienter what is untrue; he has affirmed his knowledge.” 1 Bigelow on Fraud, 513.

In support of the contention that the petition is insufficient, counsel for the defendant cite the case of Taylor v. Leith, 26 Ohio St., 428, where, in passing upon instructions to the jury, the court held that if the representations were believed to be true, and the facts of the case were such as to justify the belief, there would be no fraud. The view that the petition in the case at bar states a cause of action is not out of harmony with the conclusion of the court in that case. They are entirely consistent. When it is shown, as it is in the petition before us, that positive statements of fact are made relative to the premises, which are material to the transaction, and under circumstances such that he who makes the representations should know the facts, and it is shown too that such statements were untrue, the view most favorable to the defendant is that he must at least assume the burden of showing that he believed his representations true and that the facts were such as to justify his belief.

When tested by the rule stated by this court in the case of Aetna Ins. Co. v. Reed, 33 Ohio St., 283, this petition is found to be sufficient. It meets every requirement there stated — false representations of a material fact, upon which plaintiff relied, and upon which, from the circumstances of the case, he had a right to rely, and, in doing so, was misled to his injury, whether the party making the representations knew them to be false or not, if he had no reason to believe them to be true, and they were made with the intention of inducing the person to whom made to act upon them and he did so, sustaining a damage in consequence. All these facts are shown in the petition, and surely nothing further should be required of the plaintiff.

In the case last cited and in Mulvey v. King, 39 Ohio St., 491, the court has somewhat modified the burden theretofore cast upon one who seeks to retrieve his losses sustained by reason of the misrepresentations of one with whom he deals. In the latter case it was held that against one who claims the benefit of, and seeks to enforce, a contract procured by means of misrepresentations, recoupment may be had if it only appear that the representation was “material and substantial, affecting the identity, value and character of the subject-matter of the contract, that it was false, and that the other party had a right to rely upon it, and that he was induced by it to make the contract.”

To the same effect is the holding of the court in. Baughman v. Gould, 45 Mich., 481, and Pierce v. Tiersch, 40 Ohio St., 168.

The representations complained of in the petition before us, while not affecting the identity, do affect the character, use and enjoyment, and, hence, the value of the premises, the subject-matter of the contract. Nor can defendant complain because the plaintiff accepted the positive statements of fact made by the defendant, and presumably within his knowledge, at their face value, and relied thereon. 20 Cyc., 33-35, and cases cited. The representations pleaded must be regarded as material; for they substantially affected the value of the property and were calculated to and did induce the sale. 1 Bigelow on Fraud, 497. These representations were made by the husband of the defendant, who permitted him to manage and make contracts relative to her property, as his own, and she ratified his acts and accepted the benefits of the contracts thus procured. Under the facts pleaded she is bound by the representations made.

Judgment affirmed; cause remanded to common pleas court.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Jones, JJ., concur.