author: Jones, J.

text:
    The Citizens Gas & Electric Co. v. Black.

      Corporations — Liable for agent's slander, when — Managing agent is alter ego of company, when — Scope of employment — Authorisation and ratification.

    1. A corporation is liable for slander uttered by its local managing agent while acting within the scope of his employment and in the performance and furtherance of his principal’s business, touching the matter in which he was empowered to act.
    2. A local managing agent of a corporation, to whom has been entrusted the control of its local business of distributing gas and electricity in a city and the adjustment and settlement of accounts arising from leakage on the premises of its con- , sumers, is, in that connection, the alter ego of the company; and slanderous words spoken by him in the prosecution and furtherance of the business, which are unprovoked and not due merely to personal malice, are within the scope of his employment and his principal is liable therefor although it ' has neither authorized nor ratified the agent’s act.
    (No. 15100
    Decided November 28, 1916.)
    Error to the Court of Appeals of Lorain county.

      This was an action in slander brought by E. T. Black against the plaintiff in error. Judgment was obtained in the sum of $1000 in the trial court, which was affirmed by the court of appeals. Error is prosecuted in this court to reverse that judgment.
    The Citizens Gas & Electric Company is a corporation engaged in the distribution of gas and electricity in various places, including the city of Lorain, Ohio. In that city one William M. Adams had full charge of the business of the company, subject however to supervision by officials residing in Columbus, Ohio.- The scope óf his agency in the management at Lorain is evidenced in part by his own testimony. He testified that he had charge of plants at both Lorain and Elyria, Ohio, and that his superior was a general manager in Columbus, but that he had no superior in Lorain; that he had charge of the distribution of gas and electricity to local consumers; and that he hired and' discharged foremen and there was no one of higher authority than he in the cities of Lorain and Elyria.
    Black was the proprietor of a small hotel in Lorain. It appears that, before his assumption of proprietorship, there had been a subletting of the dining-room to a tenant and that the electricity therefor was furnished by a separate meter disconnected from the hotel. Subsequently Black acquired possession of the dining-room, and the loss of metered electricity being discovered the slander was uttered upon which this action was predicated.
    In the course of making a general inspection of its plants the Columbus office on April 11, 1914, employed one Wilbur to make an inspection of the meters and wires at Lorain. Wilbur made the inspection of the hotel and dining-room in question, located the loss of electricity, and reported the same to the cashier at the local office in Lorain on April 13, 1914. He at the same time reported his discovery to the local manager, Mr. William M. Adams. Adams, accompanied by his foreman and the city electrician, on the same afternoon in which the discovery was made, went to Black’s hotel, where it is claimed that Adams in the presence of others charged Black with being a thief and accused him of the theft of unmetered electricity.
    In testifying in relation to his duties in this connection Mr. Adams said:
    “Q. You may make any statement you desire concerning that, as to its purpose ? A. Mr. Reeph [local cashier] and myself talked this matter over and he framed this letter. We had quite a number of cases in Lorain, some fifteen or twenty of them, probably, in the same year, and we thought it was about the easiest way to get at this thing, and I adopted that plan of notifying these parties if we catched them appropriating gas or electricity without metering, and it worked very well all the way through except this case. * * *

      “Q. Who is there in Lorain or Elyria that has higher authority than you in either of these two towns ? A. I don’t know of anybody. .

      “Q. Now, there came a time that some inspectors came to Lorain? A. Yes.

      “Q. You knew they were in Lorain inspecting buildings? A. Yes, sir. * * *
    “Q. Who reported to you ? A. The office.
    “Q. Why did they report that to you ? A. Because we wanted to find out if we were getting paid for it or not.
    “Q. Who wanted to find out? A, Me. I did.
    “Q. That was part of your duty, wasn’t it, to find out? A. Yes.
    “Q. And you went down them, to see about it, didn’t you? A. Yes. * * *
    “Q. In all these cases in Lorain, where there is any trouble regarding wiring in buildings or the switching around a meter, that is reported to you isn’t it? A. Yes, sir.
    “Q. And then it is your duty tc, look it up ? A. Yes, sir.
    “Q. And you looked it up in this case ? A. Yes, sir.
    “Q. And you are the only man who had that in charge? A. Yes.”
    The letter referred to, which was framed by Mr. Reeph and signed by Adams as manager, was written on June 18, 1914, directed to Mr. Black, and was as follows:
    “Dear Sir:
    > “We are enclosing an estimated bill for electric current which did not pass through your meter.
    “We have taken this matter up with the management of our company, and after carefully investigating same, have determined that the enclosed bill is a very fair estimate.
    “We would suggest prompt settlement of this account.
    “Very truly yours,
    “The Citizens Gas & Electric Co.,
    “Wm. M. Adams, Manager,”

      The letter contained an account for “estimated amount of electric current which did not pass through meter,” amounting to $38.30.

      Mr. S. M. Douglass and Mr. Quincy A. Gillmore, for plaintiff in error.

      Messrs. Glitsch & Stack and Mr. G. A. Resek, for defendant in error.
   Jones, J.

There is no claim that any express authority was conferred on Adams to utter a slander in connection with his agency at Lorain, nor was there any evidence of a ratification by the corporation of the agent’s action. The only question presented is whether, in the absence of express authority or ratification, the defendant could be held liable under an implied authority conferred by reason of the general scope of employment under which Adams was then acting in the furtherance of the corporate business. .Stated broadly, it may be that there is m> “agency to slander” arising from the mere fact of an agent’s employment; but, under the current of modern authority, if a corporate servant, who has been fully delegated with plenary authority to act upon a matter in his master’s stead and to whom has been committed a full discretion as to the manner of its performance, utters a slander while engaged in the furtherance of the master’s business, so delegated, the master may be held liable.

The rule of responsibility, involving the liability of corporations under the maxim respondeat superior, is stated in Little Miami Rd. Co. v. Wet more, 19 Ohio St., 110. This rule is generally adhered to, and, as stated by the judge in the open-' ing of his opinion, the difficulty is not in the operation of the rule itself but in the application of the rule to the facts in each particular case. It should be borne in mind that the character and scope of the duties entrusted to the agent, and the legal relation subsisting between the principal and the slandered person, are controlling considerations in the enforcement of liability for slander under an implied authority. Thus it is far more difficult to establish a liability for slander against an individual, by invoking the legal maxim qui facit per alium facit per se and the rule of implied authority, than against a corporation, which must necessarily act through some personal agency. An individual may reserve to himself the means, method and personal discretion in the manner of executing the subject-matter; but a corporation, compelled to act through some managerial or subordinate agency, necessarily must empower some one of its selected agencies with a scope of employment that comprehends not only the performance of an act but the discretion and method of its performance. A corporation, in many instances, is compelled to se- . lect a personal agency who acts as its alter ego, and when that character of an agency appears of course the act of that agent, while exercised in the furtherance of his principal’s business, is the act of the principal itself. Likewise the relative duties subsisting between the corporation and the person slandered may be a determinative factor in establishing whether the tortious act was authorized by implication. In the application of this principle to carriers of passengers, the acts of subordinate agents, such as conductors and brakemen, are held to be the acts of the carrier, for to such agents are committed the care and custody of the passengers, and a tortious act, whether assault or slander, committed by such an agent in the prosecution of the master’s business, binds the principal. In such cases, and in some instances in cases of hotels, steamboats and theaters, the liability is imposed because of a contractual duty of care and protection arising between the patron and carrier or proprietor, under which the latter is required to protect the former from assault upon his person or character. The patron, in such case, has not only the right to be safe but to feel safe. But, manifestly, the same liability would not attach if a slander were uttered by a mere foreman of right of way or by some subordinate agent of a private corporation, where it cannot be reasonably implied that the character of his duties might eventuate tortious conduct in course of performance. The difficulty underlying the application of the legal principle involved, and the test of corporate liability, are fully stated by Mechem in his treatise on Agency, quoted by Judge Spear in The Stranahan Brothers Catering Co. v. Coit, 55 Ohio St., 410.

In the instant case it appears from the record that while the general offices of the plaintiff in error were in Columbus, Adams himself was the local manager and had full and complete authority over the operations of the company in the city of Lorain. The discovery that electricity was appropriated without metering was reported by the inspector to Adams as local manager. He himself testified that these matters, including the adjustment and settlement of cases of this character, came within the range of his duties; and it was during the adjustment of the question involved, and while in the furtherance of that object, that the defamatory words were spoken. Adams, therefore, had not only the fullest power to deal with the question at issue between Black and the company, viz., the matter of leakage of electricity, but had full authority to adjust that question in any manner that he chose. He was in fact, upon that occasion, the alter ego of the company. And if in his effort to obtain an adjustment he used the defamatory words alleged, he did so not only in furtherance of the company’s business but under an authority fairly implied from the duties entrusted to him; and the act was within the scope of his employment. If the slanderous words used were provoked by abusive language and conduct upon the part of Black, and were the result simply of personal resentment and malice induced by such provocation, then under the Wetmore case, supra, there would be no liability on the part of the principal. This feature of the case was fully explained to the jury by the trial court.

An agent with a lower status than manager or officer of a corporation may bind his principal by a slanderous statement. This phase deals with the degree of proof required rather than in any distinction of the legal principle involved. Where it is attempted to hold a corporation for the slander of a subordinate agent there must be proof of facts which show that such an agent was fully entrusted with the scope of employment touching the matter in question and with an implied authority to use the language employed. If this is not conferred, or conferred only upon an official of higher degree, then it is not within the scope of employment. Fensky v. Maryland Casualty Co., 264 Mo., 154, 174 S. W. Rep., 416.

The. legal principle underlying the facts presented in the instant case has been applied in the following cases:

Washington Gas Light Co. v. Lansden, 172 U. S., 534, was an action against a corporation for libel committed by its manager. There the corporation was released from liability because the manager had no authority over the subject-matter from which the libel arose: In the course of the opinion, at page 544, Mr. Justice Peckham said, “There must be evidence of some facts from which the authority of the agent to act upon or in relation to the subject-matter involved may be fairly and legitimately inferred by the court or jury.”

Payton v. People’s Credit Clothing Co., 136 Mo. App., 577, 118 S. W. Rep., 531, was an action against a corporation for slander uttered by its manager in connection with the settlement of an unpaid bill. It was there held that, as the scope of the manager’s employment included the collection and adjustment of accounts, and the slanderous words were spoken in relation to and in the performance of that duty, the manager was the alter ego of the company, and where the language used was not merely the result of personal malice, the corporation would be liable.

Hypes v. Southern Ry. Co., 82 S. Car., 315, 64 S. E. Rep., 395, was also an action in slander against the corporation, for language used by its general division superintendent. It was there held that the corporation is liable for the slander uttered by its agent, while acting within the scope of his employment and in the actual performance of the duties of the corporation touching the matter in question.

In the case at bar the defamatory language was used by Adams in the prosecution and furtherance of his principal’s business; the subject-matter in question at the time was one which Adams had full power as manager to adjust and settle. From the record we are unable to say that there was any other or higher degree of agency employed by the company, to whom was assigned the specific duty of dealing with the matter involved and to whom had been confided fully the means and methods of adjustment. The jury passed upon these issues of fact and found against the defendant.

We are aware that in similar cases this modern and more liberal rule in favor of liability is not followed in some jurisdictions, but the weight of judicial authority supports it. The Kentucky court of appeals denies corporate liability for slander unless expressly authorized or ratified. Duquesne Distributing Co. v. Greenbaum, 135 Ky., 182, and Stewart Dry Goods Co. v. Heuchtker, 148 Ky., 228.

Nor do we feel disposed to adhere to the rule applied by the supreme court of North Carolina to the facts developed in the case of Sawyer v. Norfolk & Southern Rd. Co., 142 N. C., 1. There the slander used by the superintendent of the railroad company was impliedly within the scope of his employment and in connection with the duty which he was fully authorized to perform. At least, it was an issue that should have been determined by the jury.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The City of Cleveland, by etc., v. Davis, Mayor, et al.

      Constitutional law — Limitation of tax levies — Section 1259-1, General Code (106 O. L., 461) — ■Exempting interest and sinking fund levies — Bonds authorised to comply with orders of state ■ board of health — Section 1259, General Code — Section 26, Article II, Constitution.

    (No. 15414
    Decided October 13, 1916.)
    Error to the Court of Appeals of Cuyahoga county.
    The city of Cleveland, by W. S. FitzGerald, its director of law, filed its petition in the court of common pleas of Cuyahoga county against the defendants in error, praying for an injunction against the issue and sale of bonds referred to in the petition.
    After setting out the incorporation of the city and the official positions of the defendants, the petition alleges that on or about July 22, 1912, the board of health of the state of Ohio made an order requiring the city of Cleveland to cease the pollution of Cuyahoga river, and to install such works or means for purifying or otherwise disposing of its sewage or other wastes now being discharged into said river, as will remove pollution from the river; that the order was made pursuant to Sections 1249 to 1261, General Code; that the order required the city to comply with its terms on or before July 1, 1915; that on July 12, 1915, the state board of health amended the order by extending to July 1, 1917, the time within which its order should be complied with; that at the general election held in the city of Cleveland, November 2, 1915, the question of levying a tax of one-quarter of one mill upon the taxable property of the city of Cleveland, in excess of the levies authorized by Sections 5649-2, 5649-3a and 5649-5&, General Code, for. the purpose of paying the interest upon and providing for a sinking fund for the redemption of bonds in the sum of $2,000,000, thereafter to be issued to comply with the order of the state board, was submitted to the qualified electors of the said city, at which election a majority of the voters voting at such election on the question voted in favor thereof; that on July 17, 1916, the council of the city duly passed an ordinance to issue bonds in the sum of $1,200,000 for the construction of sewage disposal plants and sewers leading thereto, to prevent the pollution of Cuyahoga river, and on the same date the council also passed an ordinance to issue bonds in the sum of $800,000'for the same general purpose; that both of the ordinances were passed by the council for the purpose of providing funds to enable the city to comply with the order of the state board; that both of said ordinances were duly approved by the mayor and published as required by law; that defendants are about to advertise said bonds for sale and to incur large expenses in the publication of said advertisements and will do so unless restrained by the court; and that the defendant mayor and defendant director of finance will sign and issue said bonds on the sale thereof.
    Plaintiff avers that the tax to be levied in accordance with the vote of the electors aforesaid will cause the combined maximum rate for all taxes levied in any one year hereafter in the city of Cleveland to exceed the 15 mills allowed by law, but that defendants are claiming a right and authority to issue said bonds, and provide the interest and sinking fund levies on account thereof, under the terms of an act of the general assembly passed May 27, 1915,106 Ohio Laws, 461 (Section 1259-1, General Code).
    Plaintiff says that the last-mentioned act is unconstitutional and void in that it is a law of general nature and has not uniform operation throughout the state of Ohio, and is, therefore, in contravention of Section 26, Article II of the Constitution of Ohio; that the interest and sinking fund levies to provide for the payment of interest on and the redemption of bonds about to be issued, as aforesaid, are in excess of the amount provided by valid statutes of the state; and that the bonds so referred to cannot be lawful obligations of the city of Cleveland.
    A general demurrer filed by the defendants was sustained by,the court of common pleas and the petition dismissed. This judgment was affirmed by the court of appeals, and this proceeding is brought to reverse the judgments of the courts below.

      Mr. W. S. FitzGerald, for plaintiff in error.

      Mr. Ben B. Wickham, for defendants in error.
   By the Court.

The only question presented concerns the validity of this statute. The objection urged against it is that it is limited in its effect to bonds issued after June 1, 1915, in compliance with the orders of the state board of health issued and approved prior to June 1, 1915.

It is insisted that by this limitation the act violates the constitutional requirement of uniformity of operation. It would not be denied that the original statute, of which this is an amendment, was one of a general nature. It relates to the public health, and the provisions with reference to the duties of the state board of health apply throughout the state.

The authorities agree that a statute is general and uniform if it operates equally upon every person and locality within the circumstances covered by the act, and when a classification has a reasonable basis it is not invalid merely because it is not made with exactness. It is not necessary that the law should operate in every locality. It is sufficient if it operates equally in every locality where the conditions concerning which the legislation was enacted exist. It must be kept in mind that the legislation concerned the public health. There is nothing in the limitation contained in the amendment which confines its operation to any particular locality or localities, and nothing appears in the statute or the pleadings from which the inference can be drawn that it was intended to be so confined.

By the provisions of the law, the state board is entitled to issue mandatory orders requiring certain things to be done to prevent the spread of disease. The legislature will be presumed to have had this situation in mind when it passed the amendment, and to have had any essential facts before it which made it advisable to insert the limitation which it did. .

Where any doubt exists with reference to a method of classification by the legislature, the doubt must be resolved in favor of the legislation, if questioned. As stated by Cooley in his Constitutional Limitations (7 ed.), 257: “If evidence was required, it must be supposed that it was before the legislature when the act was passed; and if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such finding.”

We have no disposition to relax in any degree the application of the principles declared by this court touching the enforcement of the constitutional requirement of uniformity in the operation of legislation, but there is not sufficient in the terms of this act to enable the court to say that it was the intention of the legislature to confine its operation to any particular locality or municipality and it is not alleged or shown that in fact or law it has such result.

The judgments will be affirmed.

Judgments affirmed.

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


text:
    The State, ex rel. The City of Cleveland, by etc., v. Zangerle, County Auditor.

      Taxation — Interest and sinking fund levies — Section n, Article XII, Constitution, 1912 — Bonds authorized but not issued — Rate to be placed on tax list, when — Bonds authorized to comply with orders of state board of health — Section 1359-1, General Code (106 O. L„ 461).

    (No. 15416
    Decided October 13, 1916.)
    In Mandamus.
    This is a proceeding in mandamus which seeks by peremptory writ to direct the auditor of Cuyahoga county to place upon the tax list of Cuyahoga county a certain amount to be raised by taxation for the purposes stated in the petition.
    The petition alleges that the city of Cleveland is under orders of the state board of health to build works for the disposal of its sewage and to prevent the pollution of. Cuyahoga river and Lake Erie; that the orders were issued July 22, 1912, and by an amendment thereof the city must .comply before July 1, 1917; that on August 30, 1915, the council of the city duly adopted a resolution declaring the necessity of the levy of an additional tax of one-quarter of one mill in excess of the levies authorized by Sections 5649-2, 5649-3a, and 5649-5&, General Code, for the purpose of paying interest upon and providing a sinking fund for the redemption of bonds in the sum of $2,000,000, to be issued for the .purpose of installing the works to prevent the pollution of Cuyahoga river and Lake Erie, thus complying with the order of the state board of health; that the resolution also provided that the question of levying said additional tax should be submitted to the voters of the city of Cleveland at the election to be held November 2, 1915; that due notice of the election was given and that the question was duly presented to the voters and carried by the necessary majority .; and that on or about May 29, 1916, the council by ordinance authorized $2,000,000 of bonds for the purposes stated, $1,200,000 of which were to be for the construction of sewage disposal plants and sewers leading thereto, to prevent the pollution of Cuyahoga river, and $800,000 for Lake Erie purification bonds. Of the former class $60,000 were directed to be issued to mature October 1, 1917, and of the latter class $40,000 were to mature October 1, 1917. Both issues were to carry four and one-half per cent, interest, running from October 1, 1916, and payable semiannually.
    The petition also alleges that the ordinances provided in terms that there should be and was thereby levied on all the taxable property of the city of Cleveland, in addition to all other taxes, for each of the years from 1916 to 1927, both inclusive, a tax sufficient to pay accruing interest on the bonds and to create a proper sinking fund to retire them at their maturity; that the city of Cleveland on the first Monday of June, 1916, caused to be submitted to the defendant, as county auditor, its annual budget, in which was included the amount of such additional taxes as were authorized by the vote of the electors, as heretofore stated, which were set out in detail as provided by law; that the budget commissioners certified the amount of taxes necessary to be levied upon the taxable property of the city of Cleveland to the defendant auditor, including the amount of the bonds so certified in the budget of the city of Cleveland by the city council; and that the auditor refused to place the same upon the duplicate and based his refusal on the ground that the bonds provided for in said ordinances, hereinbefore described, had not been issued. The relator alleges that said ordinances were duly passed by the city council of the city of Cleveland, and that said bonds had been duly and properly prepared as authorized, but had not been sold, and could not be sold, because of. the refusal of the defendant herein to include upon the duplicate of Cuyahoga county for the incoming year the amount necessary to pay the bonds maturing October 1, 1917, and the interest on all of the bonds accruing on said date; and that the compliance by the city with the order of the state board of health is thus being prevented by inability to raise the funds required to complete the work necessary to comply with the order. Relator therefore prays as first above stated.
    Defendant filed a demurrer to the petition and the cause is presented to this court on the demurrer.

      Mr. W. S. FitzGerald, director of law, and Mr. Ben B. Wickham, for the relator.

      Mr. Cyrus Locher, prosecuting attorney, and Mr. Frederick W. Green, assistant prosecuting attorney, for the defendant.
   By the Court.

It appears from the petition that the state board of health, under the authority conferred upon it by law, duly issued orders to the city of Cleveland to build works for the disposal of its sewage and to prevent the pollution of Cuyahoga river and Lake Erie; that in attempting to carry out these orders the city was confronted with the fact that its indebtedness was such that the levy for the purpose of providing interest and sinking funds on the bonds to be issued to meet the expense of this improvement would exceed the maximum limitations imposed by law without a vote of the people thereon, and thereupon the council, acting under authority conferred by Section 1259-1, General Code (106 O. L., 461), adopted its resolution to the effect that the question of an additional levy of one-fourth of a mill for this purpose should be submitted to the voters at the ensuing election. Notice of the election was given according to law, in which the electors were informed that the additional tax was to be levied during the years 1916 to 1927, both inclusive. The election was duly held and the proposition submitted was carried by the necessary majority.

It will be noted that the question submitted to the electors was the levying of “ah additional tax of one-fourth of one mill * * * during the years 1916 to 1927, both inclusive, for the purpose of paying the interest upon and of providing a sinking fund for the redemption of bonds in the sum of $2,000,000.00,” etc.

In support of the demurrer it is urged that in so far as this levy is predicated upon the provisions of Section 1259-1 it is not subject to control or adjustment by the budget commission; that the proceedings in the matter of the submission of the levy to a vote of the people do not conform to the requirements of that section, and that levies for sinking fund purposes can be predicated only upon bonds actually outstanding.

We think that the allegations of the petition with reference to the budget commission are immaterial. The legislative power is vested in the council, and when it has properly proceeded in accordance with the provisions of the statute, and within the limits prescribed in the statute, and the electors of a municipality have given the required consent in accordance with the statute, the ministerial officers carry out the will of the legislative body and of the people.

Section 11 of Article XII of the Constitution provides that no bonded indebtedness of the state, or any political subdivisions thereof, shall be incurred or renewed, unless, in the legislation under which such indebtedness is incurred or renewed, provision is made for levying and collecting annually by taxation an amount sufficient to pay the interest on said bonds, and to provide a sinking fund for their final redemption at maturity.

There is in this provision of the constitution no requirement that the bonds shall have been first issued before the legislation providing for the levy of taxes for the purposes stated shall be passed. That is a matter that is left to the wisdom and discretion of the legislative body having authority to act for the municipality. That the bonds had not actually been issued is no reason why legislation to provide money to meet them when issued and matured could not be adopted. It is the duty of the council to safeguard the interest of the municipality, and in doing so to strictly conform to the constitutional and legislative requirements under which the council acts. This power and this duty of council continue throughout. If from change in the public undertaking, or in the plans or arrangement, the bonds should not be issued; or if it should develop that a less amount was needed, or that there was no necessity for a levy, it would be the duty of the city authorities to reduce or omit entirely the levy in accordance with the circumstances.

Demurrer overruled, and, defendant not desiring to plead further, it is ordered that a peremptory writ issue.

Writ to issue.

Nichols, C. J., Johnson, Donahue and Matthias, JJ., concur.


author: Wanamaker, J.

text:
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Kinney.

      Contracts — Public welfare and public policy — Employer and employe — Release from liability for negligence — Effect of assignment of contract.

    1. Liberty of contract is not an absolute and unlimited right, but upon the contrary is always subservient to the public welfare.
    2. The public welfare is safeguarded not only by constitutions, statutes and judicial decisions, but by sound and substantial public policies underlying all of them.
    3. A contract between an employer and an employe, which nullifies or lessens any legal duty that the employer owes to the employe relative to safeguarding the life, limb, safety, health or welfare of the latter, is contrary to public policy, and, therefore, null and void. Such void contract between employer and employe is not validated by any subsequent assignment, whereby the assignee is relieved or acquitted from liability for any or all negligent acts causing death or any personal injury to said employe, though with full knowledge of all the facts to all the parties.
    4. Mary Kinney, a car cleaner, entered into a contract of employment in writing with the Pullman Company, in which contract it was provided, among other things, that Mary Kinney, in consideration of her employment and wages therefor by the Pullman Company, would assume all risks of accident or casualty incident to such employment and would release the Pullman Company from all liability therefor. Said contract further recited that the Pullman Company had a contract of carriage with the railway company, whereby the Pullman Company had promised and agreed to protect the defendant railway company from any and all liability arising out of the negligence of the defendant railway company, or its employes, in causing death or injuries to any of the employes of the Pullman Company. Said contract between Mary Kinney and the Pullman Company recited the substantial terms of such release in the contract between the railway company and the Pullman Company, and further contained the provision that the Pullman Company might assign its release on the part of Mary Kinney to any railroad company carrying the Pullman Company’s cars. Held: Said contract between Mary Kinney and the Pullman Company, so far as it undertook to release the latter, or any railroad company, from negligent acts causing death or injury to' said Mary Kinney, was invalid because contrary to public policy.
    (No. 15155
    Decided November 28, 1916.)
    Error to the Court of Appeals of Hamilton
    Facts are stated in opinion.

      Mr. Mortimer Matthews; Mr. Mitchell Wilby and Messrs. Maxwell & Ramsey, for plaintiff in error.

      Mr. Thomas L. Michie and Mr. John W. Sadlier, for defendant in error.
   Wanamaker, J.

On July 8, 1912, Mary Kinney, a woman 42 years of age, entered the employment of the Pullman Company as a car cleaner at a wage of $1.25 per day.

On the 16th day of October, 1912, in the course of her employment, she was seriously injured by a movement of one of the trains of The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Thereupon Mary Kinney brought suit against the railway company,’in the court of common pleas, for damages by reason of said injuries, averring in her petition in substance that on said 16th day of October, 1912, she was on one of the Pullman Company’s cars known as the “Montgomery,” and that while about to alight from the car the railway company, without any warning or notice, and without giving her time and opportunity to alight therefrom, carelessly and negligently started the car with force and violence and with a jerk; whereby plaintiff was theft and there thrown to the ground and permanently and severely injured.

The defendant railway company answered, setting up the defenses of a general denial, contributory negligence and exclusive negligence of the plaintiff; and for a special defense, known as Number 4, pleaded that Mary Kinney at the time of her injuries had entered into a contract with the Pullman Company wherein it was agreed that she, the said Mary Kinney, in consideration of employment and wages therefor by the Pullman Company, would assume all risks of accident or casualty incident to such employment and service, and would forever release, acquit and discharge said Pullman Company from all liability therefor.

The railway company further answered, averring the fact to be that the Pullman Company had promised and agreed to protect the defendant railway company and hold it harmless from all and any liability it might be under to employes of the said Pullman Company, or for any injuries sustained by them while so cleaning said sleeping cars, whether injuries were caused by negligence of the defendant railway company or its employes, or otherwise.

The defendant railway company further pleaded that the said agreement between Mary Kinney and the Pullman Company recited the fact of the agreement between said Pullman Company and the railway company, and that she, the said Mary Kinney, had ratified' the contract between - said Pullman Company and the defendant railway company, and did agree to protect, indemnify and hold harmless the said Pullman Company in respect to any and all sums of money it might be compelled to pay in consequence of any injury or death happening to her, and that she did agree that said agreement between her and said Pullman Company might be assigned to the defendant railway company, or any other corporation, and used in its defense.

Upon trial had in the court of common pleas Mary Kinney recovered a judgment for $4,000. This judgment was affirmed by the court of appeals. Error is here prosecuted to reverse that judgment.

The one big question in this case for the consideration of this court grows out of the fourth defense, to which the plaintiff demurred, which demurrer was sustained by the trial court and exceptions taken. The question here is as to the sufficiency of that defense.

The ground upon which the demurrer was sustained was that that part of the contract between Mary Kinney and the Pullman Company, pleaded as a fourth defense by the defendant railway company, was null and void upon the ground that the same was contrary to public policy.

What is the meaning of “public policy?” A correct definition, at once concise and comprehensive, of the words “public policy” has not yet been formulated by our courts. Indeed the term is as difficult to define with accuracy as the word “fraud” or the term “public welfare.” In substance it may be said to be the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public health, public safety, public welfare and the like. It is that general and well-settled public opinion relating to man’s plain, palpable duty to his fellowmen, having due regard to all the circumstances of each particular relation and situation.

Sometimes such public policy is declared by constitution ;' sometimes by statute; sometimes by judicial decision. More often, however, it abides only in the customs and conventions of the people— in their clear consciousness and conviction of what is naturally and inherently just and right between man and man.

It regards the primary principles of equity and justice and is sometimes expressed under the title of social and industrial justice, as it is conceived by our body politic.

When a course of conduct is cruel or shocking to the average man’s conception of justice, such course 'of conduct must be held to be obviously contrary to public policy, though such policy has never been so written in the bond, whether it be constitution, statute or decree of court.

It ■ has frequently been said that such public policy is a composite of constitutional provisions, statutes and judicial decisions, and some courts have gone so far as to hold that it is limited to these. The obvious fallacy of such a conclusion is quite apparent from the most superficial examination.

When a contract is contrary to some provision of the constitution, we say it is prohibited by the constitution, not by public policy. When a contract is contrary to a statute, we say it is prohibited by a statute, not by a public policy. When a contract is contrary to a settled line of judicial decisions, we say it is prohibited by the law of the land, but we do not say it is contrary to public policy.

Public policy is the cornerstone — the foundation — of all constitutions, statutes and judicial decisions; and its latitude and longitude, its height and its depth, greater than any or all of them. If this be not true, whence came the first judicial decision on matter of public policy? There was no precedent for it, else it would not have been the first.

This is recognized in three well-known and well-considered Ohio cases, The Central Ohio Salt Co. v. Guthrie, 35 Ohio St., 666; State, ex rel., etc. v. The Bell Telephone Co. et al., 36 Ohio St., 296, and L. S. & M. S. Ry. Co. v. Spangler, 44 Ohio St., 471.

The state has a high and vigilant regard for the life, health and safety of its citizenship, as is evidenced by the variety and number of its laws specially enacted to conserve the same. A person may not take his own life. A person’s life cannot be wrongfully taken by another; that is prohibited by the statutes against homicide. One person may not .deprive another of limb, or assault him, from the slightest to the most aggravated degree, without incurring the penalties of the law.

Coming now more specifically to the large class of persons involved in the case at bar, the employer and the employe:

As undoubted evidence of this broad humanitarian policy of the state to safeguard the life, limb, health and safety of its people employed in the industrial world, the people of Ohio in 1912 by an overwhelming vote adopted an amendment to the Ohio Constitution known as Section 34, Article II, which reads: “Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employes; and no other provision of the constitution shall impair or limit this power.”

Another amendment of the same nature was adopted by the people at the same time, known as Section 35, of said Article II, providing among other things for workmen’s compensation, “and taking away any or all rights of action or defenses from employes and employers; but no right of action shall be taken away from any employe when (.he injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes.”

Statute after statute has been enacted imposing the duty upon the employer to provide a reasonably safe place for the employe to work, reasonably safe ways to and from such place of employment, reasonably safe tools and appliances, reasonably safe protection from dangerous machinery, and the like, together with numerous provisions for light, heat, sanitation, etc., all with a view of safeguarding the life, limb, health and safety of the employe. All these constitutional provisions and statutes are bottomed upon that broad humanitarian public policy, to-wit, the state’s high and vigilant regard for the safety of life, limb, health and general welfare of its people, particularly the working class..

The irresponsible taking of human life or limb or health is not allowed by the state, or any of its agencies, when the same is directly and deliberately attempted by any individual or class of individuals as against any individual or class of individuals. Such a proposition is so atrocious and offensive that all men must recoil therefrom arid repudiate the same. If such a course of conduct between individuals may not prevail directly and deliberately, by what species of judicial jugglery shall it be permitted to result from the indirect and passive methods known as negligence, carelessness, failure to take any regard whatsoever for the safety, life or limb of others, even though such be expressly provided for in the so-called contract of employment.

Why should a court recognize in any person, artificial or natural, the right to do a wrong to some other person? How can it be said to be the right of one person, whether by contract or otherwise, to take the life or limb of another person wrongfully and negligently, and wholly without liability or responsibility for such wrongful and negligent act?

If a contract between employer and employe, whereby the employe assumes all risks no matter how negligent the employer may be, must be upheld by courts as a valid contract, the enormous increase in industrial casualties, 'the loss of life and limb that would suddenly and inevitably follow, would be almost inconceivable. We would have a veritable army of crippled unfortunates and maimed dependents, deprived of life’s joys and blessings, filling our almshouses as paupers and charges upon the state’s financial resources, entailing a burdensome system of taxation. Wholly apart from the higher humanitarian questions involved, the increased burden thus placed upon the state for charitable purposes would be, in and of itself, sufficient to affect contracts of this character with a vital public interest. Courts should not hesitate to hold such contracts wholly null and void.

Therefore, upon the general fundamental principles of public policy upon which the Ohio Constitution and its laws are founded, as well as from the spirit of many of our constitutional principles, such a policy as is contained in the Pullman Company contract in the case at bar is clearly in conflict with the sound and humane public policy of the state.

But it is claimed that contracts of this character are no longer open to doubt; that they have -been adjudicated and held valid by the federal courts. The chief case relied on by plaintiff in error to sustain this contention of validity is that of Robinson v. Baltimore & Ohio Rd. Co., 237 U. S., 84. The opinion is by Mr. Justice Hughes.

Plaintiff in error claims that that case is squarely in point and decisive of this cause in favor of plaintiff in error. An examination of that case discloses the fact that the suit was brought for personal injuries “under the Employers’ Liability Act.” That act applied only to employers and employes in railway service engaged in interstate commerce, and the question was whether or not a person employed by the Pullman Company was an employe of the railroad company within the purview of said act. This is apparent from the second and third paragraphs of the syllabus, which respectively read:

‘A contract between the Pullman Company, as employer, and its employe releasing the employer, and also all railroad corporations over whose lines the employer’s'cars were operated, from all claims for liability in personal injury sustained by the employe, held in this case valid unless the employe of the Pullman Company was also the employe of the railroad company, in which case that provision of the contract would be invalid under §5 of the Employers’ Liability Act.”
’ “Congress in legislating on the subject of carriers by rail was familiar with the situation and used the term employe in its natural sense and did not intend to include as employes of the carrier persons on interstate trains engaged in various services for other masters.”

It is quite apparent that that suit being brought under the employers’ liability act was governed by the provisions of that act and that the word “employe,” as therein used; did not include persons who were not employes of the railway company, and therefore that the act did not include and protect a porter, employed by the Pullman Company, in charge of a Pullman car.

The opinion is brief and clear and fully discloses the fact that the whole question turned upon the construction of that statute and the use of the word “employe” therein. No question of public policy seems to have been raised in that case, at least it is in no wise discussed in the opinion. The Robinson case has no application here.

It may be said in passing that it is also claimed in the case at bar that Mary Kinney was at least a de facto employe of the plaintiff in error, the railway company, and that, therefore, by virtue of Section 9013, General Code, said contract was invalid.

That section reads as follows:

“No railroad company insurance society or association, or other person shall demand, accept, or enter into an agreement or stipulation with a person about to enter, or in the employ of a railroad company whereby he stipulates or agrees to surrender or waive any right to damages against a railroad company, thereafter arising for personal injury or death, or whereby he agrees to surrender or waive in case he asserts such right, any other right.”

As in the Robinson case, under the federal statute, so in this case, under the Ohio statute, the employe is clearly not within the terms of the statute. She was not an employe of a railroad company, and, as such, the statute in and of itself has no application.

The case, however, particularly relied upon by plaintiff in error as controlling and decisive of the case at bar, is known as the Voigt case, reported in 176 U. S., 498, 44 L. Ed., 560. The opinion is by Mr. Justice Shiras. The syllabus in the latter publication reads as follows:

“An express messenger occupying an express car, in charge of express matter, in pursuance of a contract between the railroad company and the express company, is not a passenger within the meaning of the rule of public policy which denies the validity of contracts limiting the liability of a carrier to a passenger for negligence, and cannot recover of the railroad company for injuries sustained in a collision, where the contract between the companies exempts the railroad company from such liability, while his own contract, voluntarily entered into as a condition of employment, assumes all such risks and stipulates that he will indemnify and hold his employer harmless from all liability for such accident or injury.”

If this is sound doctrine it would seem at first blush to sustain the claims of plaintiff in error. In the opinion Justice Shiras says, at page 505:

“The Circuit Judge thought the case could not be distinguished from the case of Railroad Co. v. Lockwood, 17 Wall. 357, where a recovery was maintained by a drover injured whilst travelling on a stock train of the New York Central Railroad Company proceeding from Buffalo to Albany, on a pass which certified that he had shipped sufficient stock to give him a right to pass free to Albany, but which provided that the acceptance of the pass was to be considered a waiver of all claims for damages or injuries received on the train. This court held that a drover travelling on a pass, for the purpose of taking care of his stock on the train, is a passenger for hire, and that it is not lawful for a common carrier of such passenger to stipulate for exemption from responsibility for the negligence of himself or his servants. This case has been frequently followed, and it may be regarded as establishing a settled rule of policy. * * *
“The principles declared in those cases are salutary, and we have no disposition to depart from them.”

Mr. Justice Shiras continuing, on page 506, says:'

“Upon what principle, then, did the cases relied on proceed, and are they applicable to the present one? They were mainly two. First, the importance which the law justly attaches to human life and personal safety, and which therefore forbids the relaxation of care in the transportation of passengers which might be occasioned by stipulations relieving the carrier from responsibility. This principle was thus stated by Mr. Justice Bradley in the opinion of the court in the case of Railroad Co. v. Lockwood: Tn regulating the public establishment of common carriers, the great object of the law was to secure the utmost care and diligence in the performance of their important duties — an object essential to the welfare of every civilized community. Hence the common law rule which charged the common carrier as an insurer. Why charge him as such? Plainly, for the purpose of raising the most stringent motive for the exercise of carefulness and fidelity in his trust. In regard to passengers the highest degree of carefulness and diligence is expressly exacted. In the one case the securing of the most exact diligence and fidelity underlies the law, and is the reason for it; in the other, it is directly and absolutely prescribed by the law. It is obvious, therefore, that if a carrier stipulate not to be bound to the exercise of care and diligence, but to be at liberty to indulge in the contrary, he seeks to put aside the essential duties of his employment. And to assert that he may do' so seems almost a contradiction in.terms.’
“The second fundamental proposition relied on to nullify contracts to relieve common carriers from liability for losses or injuries caused by their negligence is based on the position of advantage which is possessed by companies exercising the business of common carriers over those who are compelled to deal with them. And again we may properly quote a passage from the opinion in the Lockwood case as a forcible statement of the situation:
“ ‘The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to higgle or stand out and seek redress in the courts. His business will not admit such a course. He prefers, rather, to accept any bill of lading, or sign any paper the carrier may present; often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do this, or abandon his business. * * * If the customer had any real freedom of choice, if he had a reasonable or practicable alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment, then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public. But the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade has assumed. The business is almost concentrated in a few powerful corporations, whose position in the body politic enables them to control it. They do, in fact, control it, and impose such conditions upon travel and transportation as they see fit, which the public is compelled to accept. These circumstances furnish an additional argument, if any were needed, to show that the conditions imposed by common carriers ought not to be adverse, to say the least, to the dictates of public policy and morality.’ ”

Justice Shiras continues:

“Upon these principles we think the law of to-day may be fairly stated as follows: 1. That exemptions claimed by carriers must be reasonable and just, otherwise they will be regarded as extorted from the customers by duress of circumstances, and therefore not binding. 2. That all attempts of carriers, by general notices or special contract, to escape from liability for losses to shippers, or injuries to passengers, resulting from want of care or faithfulness, cannot be regarded as reasonable and just, but as contrary to a sound public policy, and therefore invalid.”

Justice Shiras further continues:

“But are these principles, well considered and useful as they are, decisive of, or indeed applicable to, the facts presented for judgment in the present case ?
“We have here to consider not the case of an individual shipper or passenger, dealing, at a disadvantage, with a powerful corporation, but that of a permanent arrangement between two corporations embracing within its sphere of operation a large part of the transportation business of the entire country. We need not, in this inquiry, examine the nature of the business of an express company, or rehearse the particular services it renders the public.”

In the Voigt case the United States Express Company had a contract with the Baltimore & Ohio Southwestern Railway Company very similar to the contract in the case now before this court.

Justice Shiras undertakes to distinguish between a contract made by the railroad company as an employer with its employe and a contract made between an express company and railway company, or between the Pullman Company and a railway company.

He says, at page 512, “that Voigt, the defendant in error, had agreed in writing to indemnify the express company against any liability it might incur by reason of said agreement between the companies, so far as he was concerned, and further agreed to release the railroad company from liability for injuries received by him while being transported in the express cars; that, in consideration of such agreement on his part, Voigt was employed as an express messenger, and while so employed, and while occupying as such messenger a car assigned to the express company, received injuries occasioned by a collision, on December 30, 1895, between the train which was transporting the express car and another train belonging to the same railroad company.”

Mr. Justice Shiras continues:

“It is evident that, by these agreements, there was created a very different relation between Voigt and the railway company than the usual'one between passengers and railroad companies. Here there was no stress brought to bear on Voigt as a passenger desiring transportation from one point to another on the railroad. His occupation of the car, specially adapted to the uses of the express company, was not in pursuance of any contract directly between'him and the railroad company, but was an incident of his permanent employment by the express company. He was on the train, not by virtue of any personal contract right, but because of a contract between the companies for the exclusive use of a car. His contract to relieve the companies from any liability to him, or to each other, for injuries he might receive in the course of his employment, was deliberately entered into as a condition of securing his position as a messenger. His position does not resemble the one in consideration in the Lockwood and similar cases, where the dispensation from liability for injuries was made a condition of a transportation which the passenger had a right to demand, and which the railroad companies were under a legal duty to furnish.”

Mr. Justice Shiras, in reviewing the Lockwood and other cases, bottoms the judgment of the court, holding that such contracts are invalid because contrary to public policy, upon the two following propositions:

“First, the importance which the law justly attaches to human life and personal safety.
“Second, advantage which is possessed by companies exercising the business of common carriers over those who are compelled to deal with them.”

Justice Shiras bases these propositions very largely upon the reasoning of Mr. Justice Bradley in the Lockwood case, which he again quotes, as follows:

“The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to higgle, or stand out and seek redress in the courts. * * * In most cases, he has no alternative but to do this, or abandon his business. * * * If the customer had any real freedom of choice, if he had a reasonable and practicable alternative, and if the employment of the carrier were not a public one, * * * then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public. But the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations, whose position in the body politic enables them to'control it,”

Now Mr. Justice Shiras attempts to make some surface distinctions between the contract that the railroad company had with the express company as to its messenger in the Voigt case and the contract which the railroad company had with the drover in the Lockwood case. These distinctions are at the most surface distinctions, technical distinctions. At the bottom there is no real difference in principle. Can it be said “that the importance which the law justly attaches to human life and personal safety” applies to a drover but does not apply to an express messenger, and does not apply to an employe such as the car cleaner, Mary Kinney? This sort of leopard-spot public policy which Justice Shiras attempts to lay down in the Voigt case is wholly indefensible and unconscionable.

The law regards with equal tenderness and concern the life of the passenger, rich or poor, the life of the drover, the life of the express messenger, the life of a Pullman porter, the life of a car cleaner. It may and should recognize different degrees of care, dependent upon the relation and circumstances of the parties, and the law does recognize such distinctions, but to say that the parties may so contract as to permit one to avoid and escape all thought oleare for the safety of the life, limb or health of the other is as barbarous a policy as was ever suggested in any court of justice.

Does the state’s regard for human life and its conservation, with consequent liability for its wrongful loss or impairment, rest on one public policy for a drover, another public policy for an expressman, another public policy for a Pullman porter, and yet another public policy for a car cleaner ?

Richard Hooker, in his definition of law, used these immortal words, among others:

“All things in Heaven and earth do her [the law] homage, the very least as feeling her care and the greatest as not exempt from her power.”

The quoted language of Justice Bradley in the Lockwood case applies with no more force there than it does in the Voigt case, or than it does in the Kinney case at bar. Substitute for “drover” the word “expressman,” or, as in this case, the words “car cleaner” or the word “employe,” and you have the same public policy — varying in circumstances, it is true, but nevertheless the same public policy for which Justice Bradley so ably and vigorously contends, to-wit, the state’s high regard for the safety of human life.

Now applying the second ground of that public policy recognized by Justice Bradley in the Lockwood case, to-wit, the inequality of the parties to the contract, if here we substitute for the word “drover” the word “porter,” “expressman” or “car cleaner,” is there not indeed a greater inequality in the case at bar between Mary Kinney, the car cleaner, and the Pullman Company than there was in the Lockwood case between the shipper, called the drover, and the railway company? Indeed the very doctrine announced by Mr. Justice Bradley in the Lockwood case, and quoted with high approval by Mr. Justice Shiras in the Voigt case, should have persuaded the court in the latter case to a judgment absolutely contrary to the one rendered.

Abraham Lincoln in his great message to the federal congress, delivered on July 4, 1861, among other things said that “the leading object of government * * * is to elevate the condition of men.” To that paramount purpose and policy all the agencies and branches of government, including the judiciary, are thoroughly committed. We are now asked to substitute for that fundamental policy a contractual doctrine that endangers the condition of men, makes widows of their wives, orphans of their children, destroys or impairs their usefulness as citizens and their earning capacity as workers, and all because it has been so written in a contract, the parties to which are upon such unequal terms that there is no more liberty of contract in this case — indeed not as much — than there was in the Lockwood case between the drover and the railway company. That contract was found invalid as against Lockwood. This contract should be likewise held invalid as .against Mary Kinney.

Judgment affirmed.

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


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    Anderson v. Galloway et al., Admxs.

      Proceedings in error — Affirmance of judgment by supreme court— Insufficient record for review — Specific performance of judicial sale — Defenses—Incomplete title and statute of frauds — Memorandum in writing.

    (No. 15147
    Decided October 24, 1916.)
    Error to the Court of Appeals of Belmont county.

      Mr. T. C. Ayers; Mr. Fred Spriggs and Messrs. Kennon & Kennon, for plaintiff in error.

      Mr. W. O. Chappell and Mr. C. S. Sheppard, for defendants in error.
   By the Court.

The judgment sought to be reversed was rendered in favor of defendants in error on appeal in the court of appeals of Belmont county. Upon application of plaintiff in error, the court of appeals was ordered to certify its record to this court. A bill of exceptions was filed in the court of appeals after the time fixed by law for the filing of. the same had expired. A proceeding in mandamus was then instituted in this court to compel the court of appeals to allow and sign this bill of exceptions, which that court had refused to do. The relief sought in the mandamus proceedings was denied. (State, ex rel. Anderson, v. Spence et al., Judges, 94 Ohio St., 252.) Plaintiff in error, however, filed in this court what purports to be a transcript of the testimony in the court of appeals, which is embodied in a printed record. He filed also a record in this court containing merely the pleadings in the case and the journal entries in the lower courts. TJpon motion, the so-called transcript of the testimony and the printed record containing the same were stricken from the files of this court.

The original action was one in which the defendants in error asked that plaintiff in error be required to specifically perform a certain contract of sale and pay to them a balance of purchase money due thereunder. Defendants in error, as administratrices of the estate of Sarah Coventry, deceased, under authority of the probate court, sold at judicial sale certain real estate of which the said Sarah Coventry died seized. This real estate, according to the allegations of the petition, was offered for sale and the plaintiff in error bid to pay therefor the sum of $7,200. This sale was confirmed by the probate court and plaintiff in error paid to defendants in error on account of the purchase price the sum of $200. They executed and delivered to him a good and sufficient deed conveying the premises, and they allege in their petition that they have complied with all the conditions of the sale, that possession of the premises has been delivered to plaintiff in error, and that he accepted the same. In the amended answer the filing in probate court of the petition for the sale of the real estate, the issuing of an order of sale therefor, and the advertising and selling of the same at the time advertised, are admitted, but each and every other allegation in the petition is denied. As a further defense it is set up that no note or memorandum in writing of the contract set out in the petition was ever made by plaintiff in error or by anyone authorized by him, and as a third defense it is denied that at the time of her decease Sarah Coventry had the title to more than nine-tenths of the real estate described in the petition. To this amended answer a reply was filed in which the allegation in the amended answer, that there was no memorandum in writing, and the allegation in the third defense as to the title, were denied.

Counsel for plaintiff in error in their brief assign several reasons why the judgment of the court of appeals should be reversed. They insist that judicial sales are within the statute of frauds and a memorandum in writing should be signed by the purchaser at such sale, or by his agent duly authorized. They say that the decedent, Sarah Coventry, had no legal title to more than nine-tenths of the acreage of the land in question, and they urge further that there were irregularities in the proceedings in probate court and in the sale of the property, which defeated a recovery by the defendants in error.

The court of appeals was not requested to and did not state its conclusions of fact separately from its conclusions of law. There was a finding on the issues joined in favor of the defendants in error and this general finding is sufficient to support the judgment. The questions presented by plaintiff in error cannot be determined by the record before us, consisting of the pleadings and journal entries only, and therefore the judgment of the court of appeals is affirmed.

Judgment affirmed.

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


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    Kiskadden, Trustee, v. Anderson, Admx.

      Statute of limitations — Unpaid stock subscriptions — Section 8688, General Code, inapplicable, when. .
    (No. 14807
    Decided November 21, 1916.)
    Error to the Court of Appeals of Seneca county.

      Messrs. McCauley & Weller, for plaintiff in error.

      Messrs. Hunt & Gam, for defendant in error.
   By the Court.

The judgment of the court of appeals in this case was rendered prior to that of the court of appeals of Lucas county in the Bauman case, 94 Ohio St., 130. When the latter case was certified to this court, because of the conflict between its judgment and that of the court of appeals of Seneca county in the Anderson case, this court permitted a rehearing of the motion of the plaintiff in error to certify the instant case to this court. The same question is involved in the two cases, and the judgment in one case is conclusive upon the other. Here judgment was rendered by the common pleas court in favor of the trustee. The administrator prosecuted error to the court of appeals, and that court reversed for the sole reason that the common pleas court erred “in ruling that the statute of limitations of eighteen months did not apply to the action” instituted by the trustee. In so ruling the court of appeals erred.

The former entry of this court refusing to sustain the motion to certify the record is set aside and the motion to certify is sustained; and since the case has been presented and argued upon its merits, the judgment of the court of appeals is in this case reversed and the judgment of the common pleas court affirmed on authority of the Bauman case, supra.

Judgment reversed.

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

Donahue and Newman, JJ., dissent.


text:
    Porter v. Rohrer.

      Bills of exceptions — Filing with petition in error — Section 12263, General Code — Limitation of time — Nonfeasance of officer , of trial court — Bill may be filed, when — Review by court withoitt bill.

    1. Section 12263, General Code, imposes upon the excepting party a clear and positive duty to file with his petition in error a bill of exceptions, if he desires to avail himself thereof; and if the bill has been perfected and filed in the trial court within the limitation period for error, it becomes his duty to file it in the reviewing court within that period.
    2. If the excepting party has performed the statutory duty required of him relating to the preparation, filing and perfection of a bill of exceptions, and the same has not been properly perfected by reason of the nonfeasance of some ministerial act by the clerk or trial judge, the excepting party may cause the same to be filed in the reviewing court at any time before the final consideration of the case in that court.
    3. In cases occurring under proposition 2 of the syllabus above, if the excepting party has failed to use due diligence in availing '■himself of such bill and securing its presentation to the reviewing court for its consideration, that court, in the ’exercise of its discretion, may review and determine the cause without the bill of exceptions.
    (No. 15185
    Decided November 28, 1916.)
    Error to the Court of Appeals of Hamilton county.
    This action was brought by William Rohrer against Frank S. Porter for false imprisonment, resulting in a verdict for plaintiff. On June 19, 1914, judgment was entered on the verdict. A bill of exceptions was filed with the clerk of the trial court on July 29, 1914, and notice thereof served on opposite counsel on the day following. On August 14, 1914, the following was noted on the trial docket: “The trial judge was absent from district at time Jor transmission of within bill of exceptions.”
    A petition in error, with transcript and original papers, other than the bill, was filed on August 28, 1914, arid summons then issued. On September 8, 1914, the bill was transmitted to the trial judge,, who, on September 13th, extended the time ten days for its allowance and signing. The exact date of its signing does not appear, but it was filed in the court of appeals on February 6, 1915. In April of that year an order was granted allowing the plaintiff in error 30 days to file briefs, and on January 11, 1916, the court of appeals sua sponte ordered the bill of exceptions stricken from the files because the same “was .not filed in this court within the time allowed by law and therefore cannot be considered by the court.” The errors relied on being contained in the bill, the judgment of affirmance by the court of appeals necessarily resulted.

      Mr. Charles S. Bell, for plaintiff in error.

      Mr. Nicholas Klein, for defendant in error.
   Jones, J.

The docket and journal entries disclose that the plaintiff in error had filed his bill within 40 days after the overruling of his motion for a new trial; that he had filed his petition in error, together with a transcript and original papers, save the bill of exceptions, within 70 days after rendition of judgment; and that neither at the time he filed his petition in error, nor within the 70 days succeeding the judgment, had the bill which he had filed in the trial court been allowed and'signed by the trial judge. The court of appeals, as disclosed in its published opinion, ordered the deletion for the reason that the bill was not signed before September 23d, and that if it had been so signed it could not be considered because not filed in the appellate court until February 6, 1915. This holding was made presumably because its filing in the latter court was not within the time limited for error proceedings.

The questions of practice involved, in the light of our error statutes and adjudications thereunder^, are both interesting and important and involve the construction of Sections 12263 and 11572, General Code. These two sections should be harmonized, if possible, in order to give effect to each, and furthermore to sustain the principle that no litigant should be deprived of a legal right because of a ministerial nonfeasance of some officer, whether that officer be an attorney, clerk or judge. Section 12263, General Code, imposes upon the losing litigant a clear and positive duty, requiring him to file with his petition in error a transcript of the docket or journal entries, with such original papers or transcripts thereof as may be necessary to exhibit the error complained of. While this section apparently requires the original papers to be filed concurrently with the petition in error, it has been hpld that this requirement has been sufficiently complied with if such original papers, etc., are filed within the period of limitation fixed for prosecuting error. Townsend v. Harrison, 58 Ohio St., 398; Second National Bank of Bucyrus v. Moderwell et al., 59 Ohio St., 221, and Brigel et al. v. Kittredge et al., (unreported) 65 Ohio St., 576, cited in Falconer et al. v. Martin et al., 66 Ohio St., 359.

Since proceedings in error are entirely statutory, the requirements relating thereto must be strictly followed where they are prerequisite to jurisdiction. That principle is well established. But if doubt arises in the construction and application of cognate statutes relating to procedure, it is also well established that a liberal construction will obtain, in order that a litigant may not be deprived of a remedy attaching to a legal right otherwise granted him. So that, in the case at bar, while the duty was cast upon the plaintiff in error to file his bill within the seventy-day limitation, that duty obviously could not be complied with, as by the ministerial omission of the clerk or trial judge such bill was' not available and in the hands of the clerk on the seventieth day after judgment. Section 12263, General Code, requires a positive compliance with its provisions on the part of the plaintiff in error as a prerequisite to jurisdiction, under the cases cited.

However, where counsel for the losing party has performed all the statutory requirements relating to the preparation, filing and perfection of the bill his client will not be allowed to suffer detriment by reason of neglect or default in the ministerial act of a clerk who fails to transmit or a judge who fails to allow and sign the bill within the prescribed time. The Cincinnati Traction Co. v. Ruthman, 85 Ohio St., 62, and Pace v. Volk, 85 Ohio St., 413.

In the latter case the bill was filed in the circuit ' court within the statutory limitation for error, thé judge having allowed and signed it within that period. In the former case the trial judge did not allow and sign the bill until after the limitation period had expired. In both cases this court held that the appellate courts should have considered the bill. In the Pace case, supra, had the excepting party not secured its filing in the circuit court’ within the period of statutory limitation, when the judge had signed it within that time, this court might have held, as we now do, that, giving effect to Section 12263, General Code, the bill should not have been considered. If, however, the ministerial, official delinquencies result in the perfection of a bill after the period of limitation for error has expired, the Ruthman case, supra, is authority supporting the conclusion that the bill in such event may be considered by the reviewing court. The rule adopted in that case is substantially carried into statute law by virtue of Section 11572, General Code, which provides that for purposes of review, and to secure a stay of execution of judgment, or order, a plaintiff in error may file his petition in error without waiting to perfect his bill. The section then provides: “Thereafter, within the time limited by law therefor, he may prepare, have allowed and signed, a bill of exceptions, which when duly allowed and filed in the trial court, he also may file in tne error proceeding; whereupon, it shall be received and considered by the reviewing court as if filed with his petition in error.”

This section does not repeal, by implication, Section 12263, but supplements it, by a provision that a bill legally perfected, where the losing party is not guilty of dereliction, may be considered by the reviewing court before final judgment. The “time limited by law” therein referred to comprehends the time fixed for the perfection of the bill of exceptions. This section is sufficiently comprehensive to permit the filing of the bill in the error court at any time before that court enters upon the final consideration of the case, but the section does not absolve the plaintiff in error from full performance of his duty if the bill is perfected and filed in the trial court within the limitation period; and if filed on the last day of that period, a precipe directing its filing in the reviewing court would be a compliance under the statute. For it may be possible that though the bill be perfected the plaintiff in error may deem it unnecessary to supplement his record by a filing of the bill, but may place his reliance entirely upon errors dehors the bill.

This mode of procedure does not necessarily divest the reviewing court of its discretion. If, before its consideration on review, counsel for plaintiff in error has failed to exercise diligence in availing himself of a bill and securing its presentation to the court for consideration, it would have the right, in a proper case, to pass upon the record without the bill, but such disposition rests in its discretionary powers. In the instant case the facts disclose that the excepting party had in fact done all that was required of him; that the delay in the perfection of the bill was caused by the act of the clerk or trial judge, and that the bill was filed in the court of appeals nearly a year before the same was stricken from the files for the reasons stated in the journal entry.

We therefore hold that a plaintiff in error who has performed his statutory requirements, relating to the preparation, filing and perfection of a bill of exceptions, must file the same in the reviewing court within the time of limitation for error if the same has been allowed and signed within that period, and that if, through no fault of his own, it has been allowed and signed after such period, he may file th'e same in the reviewing court before final disposition, in which event it is incumbent upon him to use due diligence in securing such allowance, filing and presentation to the appellate court. And finally, whether or not he has done so is a matter for the determination of that judicial tribunal.

The judgment of the court of appeals is vacated, and the case remanded to that court with instructions to consider the bill of exceptions.

Judgment vacated.

Nichols, C. Johnson, Donahue, Wanamaker, Newman and Matthias, JJ., concur.


text:
    The State, ex rel. Locher, Prosecuting Attorney, v. Menning et al.

      County commissioners — Road supervision — Passenger automobile not machinery or other equipment — Within Section 7200, General Code (106 O. L., 617), authorising purchase.

    Section 157 of the Cass road law, enacted May 17, 1915 (106 O. L., 574-, 617), does not authorize county commissioners to purchase a passenger automobile for official use in supervising the construction, improvement, maintenance or repair of the county highways, and such automobile is not included within the terms “machinery or other equipment” used in that section.
    (No. 15237
    Decided November 21, 1916.)
    Error to the Court of Appeals of Cuyahoga county.

      Mr. Cyrus Locher, prosecuting attorney, and Mr. F. W. Green, assistant prosecuting attorney, for plaintiff in error.

      Mr. George W. Shaw, for defendants in error.
   By the Court.

The county commissioners of Cuyahoga county purchased automobiles for the use of the county surveyor and county highway superintendent and his assistants in their work of construction, improvement, maintenance and repair of the county highways. These automobiles became out of repair and the commissioners contracted to have these repairs made, and also contracted for automobile supplies. The commissioners were also about to contract for the purchase of a new automobile for the purposes above described, when action was brought to restrain them from purchasing the new automobile, and from authorizing payment therefor and for the supplies. The county auditor and county treasurer were made parties to the suit, and the petition sought to enjoin them from issuing and honoring warrants for the payment of said automobile and supplies.

A permanent injunction was granted in the court of common pleas. This judgment was reversed and the original petition dismissed by the court of appeals. The cause is in this court on petition in error to the court of appeals.

The county commissioners seek to maintain their contractual right under Section 7200, General Code, otherwise known as Section 157 of the Cass road law, enacted May 17, 1915 (106 O. L., 574, 617). The provision of the section relating thereto is as follows:

“The county commissioners may purchase such machinery or other equipment for construction, improvement, maintenance or repair of the highways, bridges and culverts under their jurisdiction, as they may deem necessary, which shall be paid for out of any taxes levied and collected for construction, improvement, maintenance and repair of roads, as provided in this chapter.”

If authority exists under this section to purchase the automobile in question it is. because the automobile constitutes a part of the “machinery or other equipment” for the construction, improvement, maintenance or repair of highways. We are entirely satisfied that this construction is too broad. The automobiles, those purchased and the one about to be purchased, were evidently to be used for the convenience of the county officials in the supervision of highways. Their use may have been convenient and incidental to such purposes, but was not of such character as related directly to the construction, improvement, maintenance or repair of highways. If a motor vehicle constitutes an equipment for the purposes named, there seems to be no reason why a horse-drawn vehicle might not be considered an equipment for' the same purposes. But it would be difficult to draw the conclusion that the latter would be included in the term “equipment.”

The legal principle is settled in this state that county commissioners, in their financial transactions, are invested only with limited powers, and that they represent the county only in such transactions as they may be expressly authorized so to do by statute. The authority to act in financial transactions must be clear and distinctly granted, and, if such authority is of doubtful import, the doubt is resolved against its exercise in all cases where a financial obligation is sought to be imposed upon the county.

While an automobile truck, used directly in the construction or improvement of a highway, or for hauling material therefor, might be considered an equipment within the meaning of this section, we are clearly of the opinion that a mere passenger automobile, such as the petition discloses in this case, does not come within that definition.

A further inspection of the section discloses the fact that if the county commissioners have power to purchase a vehicle of this sort the townships of the state are invested with a similar power to purchase a vehicle of the same character. Such authority was evidently not intended in this section of the Cass law. The record discloses that these automobiles were to be used .by the county highway superintendent and his assistants when on official business- relating to the highways of the county. The view that these vehicles were not included within the term “equipment” is reenforced by the latter portion of Section 7181, General Code (Section 138 of the Cass law; 106 O. L., 612), which provides that these officials, when on official business, shall be paid out of the county treasury “their actual, necessary traveling expenses, including livery, board and lodging.” Here is found a clear and distinct authorization for the payment of traveling expenses of such officials, including livery hire, which refutes the construction otherwise claimed, that the commissioners had authority to purchase passenger automobiles for the same purposes; for in the latter section the legislature provides in unequivocal terms for the payment of official expenses in connection with the supervision of public highways. We conclude, therefore, that the commissioners had no authority to contract for the vehicle in question, or for the supplies.

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

Judgment of the court of appeals reversed, and that of the common pleas affirmed.

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


author: Newman, J.

text:
    The State, ex rel. Brownwell, v. The Council of the Incorporated Village of Stryker.

      Intoxicating liquors — Municipal local option — Section 6127 et seq., General Code — Tie vote — Another election precluded for two years, when — Section 6136, General Code.

    Where, in a municipal corporation in which the sale of intoxicating liquors as a beverage is not prohibited, the council, under the provisions of Section 6127 et seq., General Code, orders a special election to be held to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited, ' and the affirmative and negative of the proposition submitted to the electors each receives the same number of votes, this is an election within the meaning of that term as used in Section 6.136, General Code, and will preclude the holding of another election for that purpose before the expiration of two years.
    (No. 15192
    Decided December 12, 1916.)
    Error to the Court of Appeals of Williams county.
    Facts are stated in opijiion.

      Mr. J. A. White; Mr. Charles A. Bowersox; Mr. R. L. Starr and Messrs. Newcomer & Gebhard,, for plaintiff in error.

      Mr. Frank S. Ham and Mr. A. Julius Freiberg, for defendant in error.
   Newman, J.

This is a proceeding in mandamus originating in the court of appeals of Williams county. On the 31st day of August, 1915, a special election was held in the village of Stryker, under the provisions of Section 6127 et seq., General Code, to determine by ballot .whether the sale of intoxicating liquors as a beverage should be prohibited within the limits of that municipal corporation, the petition therefor having been signed by the relator, John Brownwell, and others. Prior to the 31st day of August, 1915, the sale of intoxicating liquors as a beverage was not prohibited in said village, nor had there been a municipal election to determine whether the same should be prohibited therein. As shown by the entry and record of the result of the election held on the 31st day of August, 1915, made by the village clerk, the whole number of votes for the sale of intoxicating liquors as a beverage was 151 and the whole number of votes against the sale thereof was 151.

On the 13th day of December, 1915, the relator and other qualified electors of the village of Stryker, in a number greater than forty per cent, of the votes cast at the last municipal election for municipal officers, again, under the provisions of Section 6127, petitioned the council of the village for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage should be prohibited in the village. On the 27th day of December, 1915, and again on the 3d day of January, 1916, the village council refused to order a special election. Thereupon the relator filed a petition in the court of appeals of Williams county, in which he prayed that a writ of mandamus issue commanding the council of the village of Stryker to order a special election to be held in the usual places for the holding of elections in said village, as- petitioned for on the 13th day of December, 1915. The case was heard in the court of appeals on the pleadings and an agreed statement of facts and the court dismissed the petition of relator and rendered judgment against him for costs. A motion for a new trial was overruled. Error is prosecuted to this court to reverse the judgment of the court of appeals.

Section 6127, General Code, under whose provisions the petition was filed by the relator and others on the 13th day of December, 1915, is as follows:

“When, in á municipal corporation divided into wards, qualified electors in a number equal to forty per cent, of the number of votes cast therein at the last preceding general election for state and county officers, or when, in any other municipal corporation, qualified electors in a number equal to forty per cent, of the votes cast therein at the last preceding general election for municipal officers, petition the council thereof for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such municipal corporation, such council shall order a special election to be held at the usual place or places for holding elections therein in not less than twenty days nor more than thirty days from the filing of such petition with the mayor of such municipal corporation or from the presentation of such petition to the council thereof. Thereupon such petition shall be filed as a public document with the clerk of such municipal corporation and preserved for reference and inspection.”

That section is found in the subdivision of the General Code entitled “Local Option in Municipal Corporations,” and in the same subdivision is Section 6136, which provides:

“After two years from the date of an election held under the provisions of this subdivision of this chapter, another election may be petitioned for and shall be ordered as provided therein.”

It is the contention of counsel for plaintiff in error that the election held on the 31st day of August, 1915, was not an election within the meaning of Section 6136, supra. They contend further that whether or not an election had been held within two years prior to the filing of the petition of December 13, 1915, was a question which the village council had no authority to determine; that in ordering an election under the provisions of Section 6127, supra, the council of the municipal corporation acts in a ministerial capacity and does not sit as a judicial body and that when a petition is filed in conformity to the provisions of that section it is mandatory upon council to act and to order an election.

This was a proceeding in mandamus in which the relator was seeking an extraordinary writ, but before it could be awarded it must have appeared that he had a clear right thereto and that there had been a' plain dereliction of duty on the part of the defendant. Evidently recognizing this fact, the relator in his petition averred that no election had been held within two years prior to the filing of the petition of December 13, 1915. This was denied by the defendant in its answer and it was expressly averred therein that such an election had been held. It was for the court of appeals to determine from the pleadings and from the agreed statement of facts whether relator had established a clear right to the writ. While Section 6127 provides that counoil shall order a special election upon the filing of a petition with the requisite number of signers, yet the general assembly in the enactment of Section 6136 has placed upon that authority a limitation which prevents the holding of an election earlier than two years from the date of the last election. We are of the opinion, then, that if it appeared upon the hearing of the case in the court of appeals that such an election had been held, relief was properly denied the relator. It is therefore unnecessary to determine whether council had authority to say that an election had been held within two years from the filing of the petition and for that reason could refuse to order another election.

The only question, then, for our determination is whether the special election held on the 31st day of August, 1915, was such an election as would preclude the ordering of another election within two years from that date. It is insisted by plaintiff in error that inasmuch as the votes cast for and the votes cast against the proposition were equal in number, it was a tie, and therefore no election within the meaning of Section 6136 was held. Counsel say the authorities are uniform on the proposition that a tie vote does not result in a choice. But the cases which they cite in support of that contention are ones where candidates for office receive the same number of votes and the courts have held that there was no election. “Election” primarily means a choice or the act of choosing, and it follows that where two candidates receive the same number of votes there is no choice or choosing, and consequently no election.

But the instant case is controlled by the provisions of Section 6131, General Code, which is as follows:

'“If a majority of the votes cast at such election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage, then from and after thirty days from the date of holding such election, no person, personally or by agent, within the limits of such municipal corporation shall sell, furnish or give away any intoxicating liquors to be used as a beverage, or keep a place where such liquors are kept for sale, given away or furnished for beverage purposes.”

Prior to the 31st day of August, 1915, the sale of intoxicating liquors as a beverage was not prohibited in the village of Stryker. On that date there was submitted to the electors of that municipal corporation the question whether or not the same should be prohibited. There were 151 votes in favor of the proposition and 151 votes against it. Under the plain provision of Section 6131, supra, requiring a majority of the votes cast at the election to be in favor of prohibiting the sale before the sale is prohibited, the vote cast at the election in question was certainly determinative of the question submitted. The proposition to prohibit was lost. The result of the election was that the status of the village, so far as the sale of intoxicating liquors was concerned, was to continue the same until another election was held as provided by law. It cannot be said that the vote cast was not determinative of the question submitted or that there was no election. It may be noted that there is prescribed by law a method for determining which of two candidates for an office who receive the same number of votes shall be declared elected — -in practically every instance the method being by lot. No statute is to fie found covering a case where a proposition such as the one under consideration is submitted to the electors and the affirmative and negative of the proposition receive the same number of votes. The reason the general assembly has made no such provision seems clear. There is no necessity for it. The language of Section 6131, as we view it, precludes the possibility of there being a tie vote in the sense that no decision has been made by the electors. Our holding is that the special election held August 31, 1915, was such an election as would, under Section 6136, preclude the ordering of another election within two years from that date.

Judgment affirmed.

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