text:
    McWhinney and Ryan v. Swisher.

      Liabihty of bond sureties — Sureties of guardian — Conflict of general bond and special bond — Section 6285, Revised Statutes— Liability of guardian for commingling fund.

    1. The liability of the sureties of a guardian upon his additional bond, given pursuant to section 6285, Revised Statutes, to account for the proceeds of the sale of real estate of his ward, cannot be extended beyond the terms of their undertaking, although the guardian commingles such proceeds with money of his ward derived from other sources for which he fails to account.
    2. Although the proceeds of the real estate are exceeded by gen* eral payments made by the guardian from such commingled fund, his sureties are liable, in an action by the ward after majority, for all of such proceeds, they being within the amount of the general balance found in the hands of the guardian.
    (Decided April 19, 1898.)
    ERROR to the Circuit Court of Darke county.
    Miss Swisher brought suit in the court of common pleas seeking to recover from the plaintiffs in error as sureties upon the additional bond of one Lowry who had been her guardian before she attained her majority. The facts alleged in her petition and their answer are uncontroverted.
    On the 14th day of February, 1884, Lowry was qualified as guardian of the persons and estates-of the minor children of Robert Swisher, deceased; who were the plaintiff, her brother and her sister, Lowry giving bond as required by section 6259, Revised Statutes, with sureties who are not here parties. Thereafter, January 31, 1885, Lowry, as guardian, filed his petition in the prohate court for authority to sell the real estate of his wards. Such authority was conferred by the probate court, the guardian giving the additional bond required by section 6285, Revised Statutes, with the plaintiffs in error as his sureties, the condition of the bond being:
    “Now, if the said J. N. Lowry, as guardian as aforesaid, shall well and faithfully discharge his duties as such guardian, and well and faithfully pay over to the proper person or persons, and account for all the money arising- from the sale of said real estate, according to law, then these presents to be void, otherwise to he and remain in full force and virtue in law.”
    Pursuant to the order of the probate court the guardian sold the real estate for a price of which there remained $876.75 after payment of dower, costs and taxes. One third of this amount was received ou account of the plaintiff. The guardian charged himself with the amount, but not in a separate account. He commingled said fund with moneys of his said wards received from other sources, the amount so received on account of the plaintiff being $3,900. Lowry died Nov. 8, 1891, and upon a settlement of his accounts in the probate court there was found due the plaintiff the sum of $2,061.71 after giving him credit for all payments made on her account. Before the commencement of the action the plaintiffs in error tendered to Miss Swisher $101.65 in full of the amount due her from them. The court of common pleas adjudged that she recover $99.90, and in view of their tender, that she he charged with the costs of the action. On her petition in error in the circuit court, it was adjudged upon the facts so admitted that she recover $519.30, that being her share of the proceeds of the sale of said real estate with interest thereon, and that she recover costs in both the circuit and the common pleas courts.
    The plaintiffs in error ask that the judgment of the circuit court be reversed and that of the court of common pleas affirmed.
    By a cross-petition in error Miss Swisher asks that upon the facts stated a judgment be rendered in her favor for the entire sum found to be in the hands of Lowry from whatever source derived.

      B. S. Frizell and Anderson da Bowman, for plaintiffs in error.
    We deny the liability of plaintiffs in error for any part of the money sought to be recovered on said special bond.
    We base this denial upon the claim that the obligation of the special bond of said guardian was designed simply to secure a faithful discharge of his duties in conducting such sale and a faithful payment and accounting of the money arising from such sale.
    This special bond was given under section 6285, as that section stood in February, 1885. It was given in a special proceeding. Such bond was necessary before such sale could be made. Without such bond the court was without jurisdiction to order a sale of the real estate. (See section 6285, as amended April 25, 1893, 90 O. L., 293.) The conditions of such bond are specially prescribed by this section, and relate wholly to the guardian’s duties in such proceedings to sell real estate. They in no way relate to his general duties. His general duties were covered by Ms bond given under section 6259, at Ms appointment in February, 1884. His general duties covered by tMs bond are defined in section 6269, and as defined in tMs section, covered every conceivable duty except the conduct of such proceedings for the sale of real estate. Tuttle v. Northrop, 44 Ohio St., 178; Woerner in his American Law of Guardianship, 133; Fay, Judge, v. Taylor et al., 11 Met., 529.
    The proceeds of said real estate amounting to $292.25, came into the hands of said guardian on March 10, 1886. From all other sources there came into his hands $3,900. The two funds were commingled and invested together. He was allowed $3,107.54 by way of credits for money paid out in behalf of his said ward, but which of said funds were used in making said payments in behalf of said ward for which said credit was allowed, or the proportion thereof, it is impossible to determine.
    In this view, if the special bond must answer for any part of the general balance due said ward, the general bond must bear the burden pro rata or in the proportion the two funds bear to each other.
    In other words, the sureties on the two bonds are liable for a pro rata share of the amount of the shortage in proportion to the amount of money derived from the land, compared with the aggregate of money received from all other sources. Yost et al. v. The State esc rel., 80 Ind., 350; Pummill, Guardian. v. Baurogartener et al., 3 NisiPrius Reports, 40; 4 Dec., 69.

      Meeker <& Gaskill and Allread <£¡ Teega/rden, for defendant in error.
    We consider it inappropriate to discuss the mathematics which might be applied by the court in fixing the equities between sureties on different bonds given by the same guardian.
    It is not conclusive against the liability upon one bond that some other bond may cover the same defalcation. The only question to be considered by the court, is whether the liability in question fairly falls within the terms of the bond sued upon. Foster, Admx., v. Wise, Admr., 46 Ohio St., 20.
    In determining whether the defalcation in question here is within the terms of the bond, we must remember that the object in giving such bonds is to protect the wards. McOoy v. Jacobi, 54 Ohio St., 447. A fair and liberal interpretation must be given to these bonds to carry out the objects and purposes of the statute. Walsh v. Miller, 51 Ohio St., 462.
    Section 6259 requires a general bond to be given by a guardian in double the estimated value of the personal estate and the rents of the real estate accruing during minority.
    Section 6258 requires the guardian to give a reql estate bond conditioned, ‘ ‘for the faithful discharge of his duties, and the faithful payment and accounting for all moneys arising from such sale according to law, ’ ’ and this bond is to be in double the amount of the appraised value of the real estate.
    The case of Wade v. Graham,, 4 Ohio St., 127, holding that an administrator’s general bond is also liable for the proceeds of real estate, is instructive on this point. We think, however, that the principle governing in this case is laid down in Tuttle v. Northrop, 44 Ohio St., 183.
    The proposition of counsel for plaintiffs in error that the sureties on the special bond are only liable for the proceeds of the real estate would require a special accounting in the probate court of the proceeds of the real estate. Neioton v. Hammond, 38 Ohio St., 436.
    It appears that the sureties upon the general bond are entirely insolvent, and whatever liability is to be held exclusively within the conditions of that bond the wards will be unable to enforce, by reason of such insolvency.
    If, therefore, the funds were commingled and the credits paid out of the commingled fund, then it is the duty of the court, in the interest of the beneficiaries, to charge the credit to the unsecured fund. Reed v. Board of Education, 39 Ohio St., 635; Gaston v. Braney, 11 Ohio St., 506.
    If the court is of the opinion that the above principle does not apply as to the application of credits, then we suggest that the credits ought, at least, to be applied upon the latest items, which would require their application to be made upon the personal fund. Beckel v. Pettiereio, 6 Ohio St., 247; Birdsellv. Heacock, 32 Ohio St., 177; Gainv. Dietz, 3 C. C., 612; 2C.D., 355; 18 Enc. of Law, 246.
   By the Court:

1. The defendant in error is not, upon the facts stated, entitled to judgment for more than the proceeds of the sale of the real estate since the liability of the sureties was, by the terms of the bond, limited to that.

2. She was entitled to the judgment rendered by the circuit court in her favor, because the proceeds of the sale of the real estate came into the hands of the guardian, and they were not by him accounted for. Although he had accounted for moneys in excess of her share of such proceeds, that could not, in a suit by her upon the additional bond, be presumed to have been, in whole or in part, on account' of such, proceeds. The case presents no question as to the rights of these sureties against those of the guardian upon his original bond.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The State of Ohio ex rel. v. Bader et al., Commissioners.

      Date at which term of clerks of common pleas court shall begin— Effect of appointme?it pro tempore — Section 1%40, Revised-Statutes.

    Section 1240, Revised Statutes, relating to the precise subject of the date at which the official terms of clerks of the court of common pleas shall begin, requires that they shall in all cases begin on the first Monday in August next after the election, whether it be to succeed a clerk chosen at a general election or to succeed one appointed pro tempore to fill a vacancy.
    (Decided April 19, 1898.)
    Error to‘the Circuit Court of Hamilton county.
    The plaintiff in error filed a petition in the court of common pleas, alleging in substance that on Nov. 6, 1894, one George Hobson was elected clerk of the common pleas court of Hamilton county; that he qualified and held the office until April, 1897, when he resigned; that the commissioners of the county appointed E. R. Monfort to fill the vacancy, and that he qualified and entered upon the duties of the office in which he continues to act.
    On the second day of November, 1897, the relator was duly elected to said office, receiving a certificate of such election and his commission from the Governor. On the 12th day of November he executed a bond according to law and tendered it to the defendants for their approval. The commissioners admitting that the bond was sufficient and proper in all other respects refused to approve it because it was therein recited that the relator was elected “to hold said office for the term of three years, beginning on and after November 2, 1897,” they being of the opinion that the relator’s term does not begin until the first Monday in August, 1898. The prayer of the petition is for a writ of mandamus commanding the commissioners to approve the bond.
    In the common pleas court a demurrer to the petition was sustained and a final judgment was rendered in favor of the defendants.
    The judgment was affirmed by the circuit court.

      Goebel & Hettinger and Peek da Shaffer, for plaintiff in error.
    We submit that section 1240 does not apply to cases of election to fill vacancies, but only to regular elections. The clerk therein provided for, is one who is required to be elected triennially, and to hold his office for. three years. These words seem to make the section applicable only to the regular triennial elections for the clerk, and not irregular elections which may be caused by reason of vacancies occurring in the office by death, resignation or removal. Section 11, by its very terms, applies to the latter cases and makes ample provision for elections when vacancies occur in the office. State v. Neibling, 6 Ohio St., 40, held that under the act of 1852 (Swan’s Revised Statutes, 174), the clerk elected to fill a vacancy was entitled to the possession of the office from and after the date of his election. As applied to this case the words “first proper election,” therein apply to the November election for state and county officers. State v. Barbee, 45 Ohio St., 347.
    The construction which makes section 1240 apply to regular elections and section 11 to irregular elections occasioned by vacancies arising from causes other than the expiration of term, brings them into complete harmony and gives due effect to all the language of each.
    If the language of any provision is of doubtful import, it should be given the meaning most in harmony with the provisions of the fundamental law. This is a settled rule of construction recognized by this court. Cincinnati v. Oliver, 31 Ohio St., 374.
    It is claimed, however, that section 11 should have the same construction as the act of 1872 (69 V., 97), which was repealed when the Revised Statutes went into effect, and that section 11 is the successor of that act, and although the language of the said section is very different from that of the act, that the change is not sufficient to indicate any intention to change the law on the subject, and that, in construing this section, the court should follow the doctrine of certain cases where it has been held that slight changes in the language of a statute occurring in a general revision of the statutes should not be held to indicate an intention to change the construction unless the -language requires it. Ash v. Ash, 9 Ohio St., 387; States. Conners, 36 Ohio St., 330; Collins v. Mitten, 57 Ohio St., 289.

      Bendigs, Foraker <£¡ Dinsmore. County Solicitors, for defendants in error.
    The office of the clerk of the court of common pleas is created and the length of the term established by the Constitution, in Article IV, section 16.
    The official term of the clerk being a specified number of years, and the day of the beginning of the term of the clerks first elected being the second Monday of February, 1852, which was the ninth day of February, 1852, every succeeding clerk occupying the office for a full term would be succeeded in office by his successor on the ninth day of February. This fact was mentioned in the case of The State v. Neibling, 6 Ohio St., 40.
    In certain cases the Constitution' specifically provides for the manner in which vacancies shall be filled, but does not in the case of the clerk. In all other cases the Constitution provides, by Article II, section 27.
    The Constitution, therefore, makes no provision for the beginning of the term of office of the clerk, except those first elected thereunder, nor for the filling of a vacancy in said office. These are matters of legislative provision. The State ex rel. v. McCracken, 51 Ohio St., 123.
    The statutes requiring a construction in the determination of this controversy are sections 11, 1240, 1243.
    These are the only sections now in force relative to this controversy; they, therefore, contain the legislative will upon this subject.
    The first act of the legislature on this subject, after the new constitution, was an act passed January 31, 1852, 50 Ohio L., page 104. This act is also found in Swan’s Revised Statutes of Ohio, 174, and Swan & Critchfield’s Statutes, 232.
    Section 6 of the act of 1852 was the subject of discussion by the supreme court in the case of The State v. Neibling, 6 Ohio St., 40. This case is the one which is especially relied upon by the rélator in his brief.
    It should be remembered that at the time of this decision, there was no statute prescribing the time for the beginning of the term of a clerk. Consequently, there was no specific time for the expiration of the term of an appointee to fill a vacancy, as was hereinbefore shown.
    The question remains for consideration, whether, by the enactment of section 11, the legislature intended to change the statutes as they existed before the codification.
    The rule governing the construction of statutes, when all the general statutes of a state, or all on a particular subject, have been revised, consolidated, and codified, is well settled in this state. The State ex rel. v. Commissioners of Shelby County, 36 Ohio St., 326.
    The same principle was under consideration in the case of Allen v. Bussell, 39 Ohio St., 336.
    We also call the court’s attention to the same principle in the following cases: The State ex rel.

    v. Auditor, 43 Ohio St., 311; The State v. Stout, 49 Ohio St., 284.
    This rule has not been changed by this court in the late case of GolUns v. Millan, 57 Ohio St., 289.
    As there is no other provision relating to the office of county auditor, section 11 applies thereto. In the case of the county auditor, the term is fixed by the constitution, and he cannot hold beyond it. The State ex rel. v. Brewster, 44 Ohio St., 589.
    This ease at bar was. fully argued, and is reported under the following title: TTcvrte v. Bode et al., 4 Nisi Prius Rep., 421; 7 Dec., 74.
    In certain cases, it is provided that, in case a vacancy occurs, an election shall be held for the unexpired term: Constitution, article 4, section 13; Constitution, article 2, section 11; section 841, Revised Statutes; section 1724, Revised Statutes; section 1713, Revised Statutes.
    In other cases, it is provided that the appointee shall hold for the unexpired term: Section 1208, Revised Statutes.
    Under section 11, as we construe it, the provision is that the appointee shall hold until a successor can he elected for the full term, according to the general statutes relating to the office. If there were any policy of the state, such as is claimed by the relator, we would not find three separate methods of filling an office.
   By the Court:

By section 16, of article 4 of the Constitution, the duration of the official term of the clerk of the court of common pleas is conclusively fixed at three years. The date at which the term shall commence is to be determined by reference to the statute.

Section 1240, Revised Statutes, provides that “there shall be elected triennially, in each county, a clerk of the court of common pleas, who shall hold his office three years, beginning on the first Monday of August next after his election.”

This section by several amendments has taken the place of section 1 ol the act of Jan. 31, 1852, which provided for the election of clerks for terms of the duration fixed by the Constitution, but did not fix the date at which the term should begin. The original section was in force at the time of the decision of The State v. Neibling, 6 Ohio St., 40, relied on by the plaintiff.

The section as it now stands has, as it was doubtless intended to have, the effect of establishing a uniform date for the beginning of the official terms of the clerks, and of removing the doubts upon the subject which, as the briefs of counsel show, arose from other provisions of statutes not relating to the precise subject. Under this section the relator was elected in November, 1897, for the term of three years beginning on the first Monday in August, 1898. The contention that his term begins at an earlier date is against the express terms of the statute.

Judgment affi/i'med.


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    Board of Education v. Board of Education.

      Distance from residence to schoolhouse — How measured — Section 4022a, Revised Statutes.

    The distance of its residence from the school of its district, which under section 4022a, Revised Statutes, entitles a child of school age to attend the school of another district, is one and a half miles by the most direct public highway from the school to the nearest part of the curtilage of its residence-
    (Decided April 19, 1898.)
    Error tc the Circuit Court of Darke county.
    The plaintiff in error seeks the reversal of a judgment of the circuit court affirming- a judgment of the court of common pleas.
    The judgment of the court of common pleas was rendered in favor of the defendant in error in an action brought by it to recover upon the following facts appearing in the petition and answer:
    Ralph and Hollis Coblentz are children of school age residing in sub-district number eight in Butler township, residing more than one and a half miles from the school in the district of their residence. The school in the Eldorado village district is the nearest school to their residence. They were permitted to attend the intermediate grade of the school of the village district, that grade being below the high school. The expense per capita of ‘running’ ’ said intermediate school was $11.50. The payment of $23.00 was demanded and refused before suit.
    The answer admits that the residence of the children is more than one and a half miles from the school in the district of their residence, if the distance is ascertained by measurement along the “nearest” public highway; but avers that it is less than one and a half miles if measured in a direct line, and that the land owners along such direct line have always permitted the children to follow it in attending school, and that it is a convenient and “practical” route for them to travel.

      Allread da Teegarden, for plaintiff in error.
    It is contended by the plaintiff below that the statute contemplates measurement only along the public highways, while on the part of the defendant below it is contended that the distance by direct line or at most, the nearest way of access by accustomed path or private or quasi public way is contemplated.
    Any person can avail himself of section 4672, and have a road laid out from his residence to the schools, or a board of education may lay out such a road where desired, so that ample provisions exist for a reasonable and proper way to the school from every quarter of the district.
    The terms employed “reside farther” and “nearest’ ’ in their ordinary acceptation allude to distance measured in a direct line, or in common parlance “as the crow flies.”
    The statute does not indicate any other but the usual method of measuring distance. If the purpose was to measure • the distance of travel by public road, the legislature would have so indicated by using instead of the words ‘ ‘who reside farther, ’ ’ etc., some such phrase as this: “Who are compelled to travel over public highways farther,” etc. Amer. & Eng. Eney. of Law (5 volume, page 704, first ed.).
    In England this question came up, and after considerable contention was settled in favor of a direct line or “as the crow flies.” Wood v. Dermett, 2 Stark, 89; Leigh v. Hind, 9 Barn. & C., 714; Reg v. Saffron, Waldon, 9 Q. B., 76; Stokes v. Grissel, 14 Com. B., 678; Lake v. Butler, 5 E. & B., 92; Jeioel v. Stead, 6 A. & E., 300; Smith v. Ingraham, 7 Com., 419.
    In a recent English magazine (60 Justice of the Peace, 706), the doctrine is maintained that “dis-tan ce is measured as the crow flies. ’ ’ General Dig. (1896), volume 2, page 382.
    The opinion in Lear v. Halstead, 41 Ohio St., 566, holding that the tax district in the one mile assessment turnpike act was bounded by a “line drawn from the terminus at right angles with the last course of the road,” gives support to the contention that when no other is clearly indicated, the geometrical plan of measuring courses and distances prevails.

      James A. Gilmore and D. W. Younker. for defendant in (error.
    Our claim is that the plain, common sense view of the provisions of the section requires that the distance should be measured by the nearest practical traveled route.
    (.a) If the claim of counsel for plaintiff in error, to the effect that a straight line is the only way to measure the distance, is right, then why rely on the statement that the land owners will permit the pupils to pass through their premises, and that the route is practical?
    (6) There can be no question but that every time a pupil passes upon the lands of another, without permission, he is a trespasser. Permission then, of the owner, is indispensable, and though it may be granted to-day, it may be withdrawn to-morrow, and the pupil will be a trespasser, which certainly was not intended by the legislature.
    The route may be practical to-day and to-morrow obstructed by a wire fence or a county ditch. The court will not incumber lands with an easement of this kind.
    (c) Counsel argue that a township road should be established to the schoolhouse, and rather intimate that it is the duty of the parents of pupils, or the defendant in error, to have such a road located and opened up in the present instance. Let the plaintiff in error have such a road established and there will be no occasion for a repetition of this case.

      {cl) Conceding that “distance is to be measured in a straight line * * * unless there is a clear
    indication that another mode of measurement is to be adopted;” in this case, the very purpose of the statute does clearly indicate that the distance is to be measured as the pupil must travel, and has a legal right to travel, to cover the distance.

      (e) So far as we have been able to examine the English authorities cited, we think it may be said that they all involve the question of radius, rather than a distance to be traveled, and there is a marked distinction between the two.
    Where radius, alone, is in question, the measurement should be a straight line, but where the traveling of the distance is involved, then it must be measured by a practical route, and a practical route is a route that can be traveled without permission from anyone.
    We have many statutes that illustrate this, Section 624.
   By the Court:

The action was brought under favor of section 4022a, Revised Statutes (92 O. L., 132). It provides as follows:

“Section 4022a. The board of education of any township, district, (sub-district) joint sub-district, special or village district, within the state of Ohio, shall permit children of school age who reside further than one and one-half miles from the school where they have a legal residence under the school laws of Ohio, to attend the nearest sub-district or joint sub-district school; or the grades below the high school in special and village districts * * * and the per capita current expense of running the school in the district where such children attend, for the term so attending, shall upon the demand of the board of education of such district, be paid by the board of education of the district where such children have a legal residence. ” * * *

Counsel for the plaintiff in error contend that the distance from residence to school is to be taken “as the crow flies.” The courts below properly rejected this aerial view of the subject. The legislation provides for the convenience of children in attending school, and the distance is to be taken as they travel along the most direct public highway from the schoolhouse to the nearest portion of the curtilage of their residence.

Judgment affirmed.


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    Dowty v. Pepple et al.

      Proceedings in error — Time of commencement — Section 6728, Revised Statutes.

    The six months within which error proceedings may be commenced under section 6723, Revised Statutes, begins to run from the date of the judgment sought to be reversed, and not from the overruling of the motion for new trial. Nor is the case different although the reason for delay in passing upon the motion for a new trial was that the trial judge was a non-resident of the county and absent therefrom until after the expiration of the six months.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Darke county.

      Williams c& Krichenberger and Allread <& Teegarden, for plaintiff in error.
    The errors relied upon were stated in the motion for a new trial, and without action on that motion the errors upon which he relied could not be assigned or made the subject of an action in error; besides he could not assume in advance that the motion would be overruled.
    The plaintiff in error did not consent to the delay or failure to pass upon the motion for a new trial. He was not negligent. He could not have the motion heard. There was no judge in the county who could decide his motion. The trial judge was constantly absent from the county until within six days of six months from the rendition of the judgment. It was impossible to have a bill of exceptions presented and allowed in time to file a petition in error, within six months from the original judgment.

      We think the authority of Young v. Shallenberger, 53 Ohio St., 291, ought not to be extended to a case where the* motion for a new trial cannot be passed upon in time to prevent the expiration of six months from the original judgment, and thereby absolutely deprive a party of his right to prosecute error.

      Martin B. Trainor and M. M. Cole, for defendants in error, P. H. and O. L. Rhynard.
    The sole question before the court is whether the circuit court had any jurisdiction over the ease, the petition in error having been filed in said court more than six months from the rendition of the judgment. The judgment was rendered November 27, 1894; the bill of exceptions was filed in the common pleas court on July 8, 1895, and in the circuit court on July 19, 1895; and the petition in error in the circuit court was filed July 19,1895; hence it is very apparent that the case of Young v. Shallenberger et at., 53 Ohio St., 291, applies. The right to prosecute error exists only when conferred by statute; and the remedy to be effective, must be pursued in the time and mode provided. The statute has declared, in explicit terms, that “no proceeding to reverse a judgment shall be commenced unless within six months after the rendition of the judgment,” and the court is powerless to enlarge its terms, if it desired to do so. The time begins to'run from the day of the rendition of the judgment. Robinson v. Orr, 16 Ohio St., 284; Bowen v. Bowen, 36 Ohio St., 312; Griffith et

      al. v. Murphy, 54 Ohio St., 613; Sheets v. Huberty, 54 Ohio St., 632. In a recent case of Meingartner et al. v. McLean, before the Supreme Court, 38 Bull., 182, an attempt was made to excuse the delay by the negligence of the clerk to file the petition in error and precipe and to issue summons in time, though the petition in error and precipe were given him within the time; yet it did not avail. The time is fixed by law, and to allow any exception would destroy the usefulness of the rule itself.
   By the Court:

In the circuit court a motion by defendants in error to dismiss the petition in error because it was not filed in that court until after the expiration of six months from the rendition of the judgment of the court of common pleas to which error was prosecuted, was sustained, and this is the only error assigned by the petition in error in this court.

That the petition in error was not filed in the circuit court until more than six months had elapsed, is conceded, but it is urged as a ground for reversal that the case was tried in the common pleas, without the intervention of a jury, by a nonresident judge; that a motion for a new trial was heard and submitted to that judge within a few days after the rendition of the judgment, but by reason of the continued absence of the judge from the county of Darke, the motion was not passed upon until after the expiration of six months from the rendition of the judgment of the common pleas.

The allegation of the petition in error, even if it were supported by the record, is not sufficient to take the case out of the operation of section 6723, Revised Statutes. As held in Young v. Shallenberger, 53 Ohio St., 291: “The statute has declared in explicit terms, that no proceeding to reverse a judgment shall he commenced unless within six months after the rendition of the judgment, and. the court is powerless to enlarge its terms, if it desired to do so.”

Judgment affirmed.


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    Townsend v. Harrison.

      Petition in error■ — Not filed within six months after judgment of lower court — Petition in error not to be dismissed, when.

    Where all the assignments of error in a petition in error, are founded upon a bill of exceptions taken in a lower court, but not filed in a higher court within six months after the rendition of the judgment in the court below, the judgment should be affirmed, but such state of the record is no ground for dismissing the petition in error.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Wood county.
    The action below, was for the recovery of damages for a personal injury. The case was tried in the common pleas court, and judgment rendered in favor of the plaintiff. A motion was made for a new trial, which was overruled and exceptions taken, and a bill of exceptions was allowed, signed and filed, and ordered to be made part of the record. A petition in error was filed in the circuit court, together with a transcript of the docket and journal entries, and the original papers, including the bill of exceptions. The circuit court affirmed the judgment, and thereupon Mr. Townsend filed his petition in error in this court, together with a transcript of the docket and journal entries, and the original papers, except the bill of exceptions. Printed records were duly filed in this court, including what purports to be the bill of exceptions, but the bill of exceptions itself was not filed in this court. After the expiration of six months from the rendition of the judgment of affirmance in the circuit court, the defendant in error filed his motion in this court to dismiss the case and affirm the judgment of the lower court, for the reason that the plaintiff in error failed to file the bill of exceptions in this court. The errors assigned in the petition in error, all depend upon the bill of exceptions. After the filing of the motion, the plaintiff in error delivered the bill of exceptions to the clerk of this court, and requested that it be filed, and it was present in court upon the hearing of this motion. ■

      J. 0. Troup, and Hurd, Brumback <& Thatcher, for the motion.

      R. B. Moore, contra.
   By the Court :

The errors assigned in the petition in error are all founded upon the bill of exceptions, and as that was not filed within six months after the rendition of the judgment of affirmance by the circuit court, the errors, if any, based upon such unified bill of exceptions, are barred by section 6723, Revised Statutes.

As to such errors, the filing of the bill of exceptions was bringing in new causes for reversal, in the nature of new causes of action, after the time for filing a petition in error had expired. This can not be done. The same principle prevails as in attempting to bring in, by amendment, a cause of action which has become barred by the statute of limitations. Hill v. Ludwig, 46 Ohio St., 373.

As the bill of exceptions was not filed in this court within six months it forms no part of the record, and with it out, the petition in error assigns no cause of error upon the record, but this is no ground for a dismissal of the petition in error, but is a good ground for affirming the judgment.

As the court has been compelled to look into the record in passing upon the motion to dismiss, and finding the condition of the record, the court will not lay the case aside to be taken up in its order, but will at once affirm the judgment.

Judgment affirmed.


author: Burket, J.

text:
    Helman Admr., v. The P., C., C. & St. L. Ry Company.
    ■ Action by administration for damages — From wrongful death— Sections 6134 and 6185, Revised Statutes — Admissions of deceased after injury — Competency of evidence.

    In the trial of an action brought by an administrator to recover damages under sections 8134 and 6135, Revised Statutes, it is competent for the defendant to introduce as evidence, what the deceased said while in his right mind after the injury, tending to show that the injury was caused by his own fault, negligence, or carelessness.
    (Decided May 10, 1898.)
    Error to the Circuit Court of Miami county.
    Sherman Weaver, having a wife and three small children, and being a yard brakeman in the employ of the P., C., C. & St. L. Ry. Co., received injuries while in the discharge of his duties as such brakeman, at Bradford Junction, in this state on the 29th day of August, 1894, and died as a result of such injury four days thereafter.
    B. F. Helman was duly appointed administrator of his estate, and sued the railway company for damages under sections 6134, and 6135, Revised Statutes, and in his petition averred that the deceased was properly riding a cut of cars onto a certain track; that his superior was negligent in allowing another cut of cars to follow so closely as to overtake and bump against his cut of cars, thereby throwing him off and causing the cars following to run over him ; that his superior did not use ordinary care in the management of the cuts of cars, and that the brake on the cut of cars following his was defective, so that the brakeman upon that car could not properly check up the cut of cars so as to prevent the two cuts coming together. The administrator also averred that under the laws of Ohio the said Sherman Weaver would have been entitled to recover against said defendant for his injuries so sustained, had death not resulted therefrom.
    The railway company admitted that it was a corporation ; that the deceased had been in its employ; that he was hurt and died at the dates stated, and denied all the other averments of the petition; and averred that the injuries of deceased were caused wholly by his own carelessness and negligence. This was denied by the reply.
    The widow having received and accepted payment out of the relief department, the action proceeded as an action for the recovery of damages sustained by the children only.
    The railway company offered evidence tending to prove that on the second day after the injury, and while Mr. Weaver was in good mental condition, he stated in a conversation then had with a Mr. Heaton, that at the time of the accident he was standing on the foot-board of the car talking to and watching another employe who was riding a cut of cars on a parallel track, and that while so talking and watching the other employe, the cut of cars following him struck his cut and upset him.
    Objection being made to this evidence, the court sustained the objection, and refused to admit the evidence to be introduced to the jury, to which the railway company excepted, and stated to the court what the witness would testify to if permitted to proceed.
    A verdict was returned in favor of the administrator, a motion was made for a new trial upon the ground, among others, that the court erred in ruling out said evidence. The motion was overruled and exceptions taken, and judgment rendered on the verdict.
    The circuit court reversed the judgment upon the sole ground that the court of common pleas erred in rejecting said evidence. Thereupon, the administrator filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and asking that the common pleas be affirmed.

      II. II. Williams and M. K. Qantz, for plaintiff in error.
    Under the common law an action for personal injuries could be maintained.
    Prior to the enactment of section 6134, Revised Statutes, the next of kin could not recover damages for causing death by wrongful act.

      The provisions of this statute give the next of kin a right to damages whenever the wrongful act, neglect or default (if death had not ensued) would have entitled the party injured to maintain an action and recover damages. This act creates and refers solely to a cause of action.
    The next of kin do not take from the decedent by inheritance, and if the cause of action once exists they cannot be defeated of their statutory rights by his acts.
    His statements, made after the cause of action for personal injuries has arisen, are not admissible because against his interest, for he has no interest and never can have any in an action for causing death by wrongful act.
    His admissions would be admissible in an action brought by him, or in action by a party identified with him in interest, that is, claiming his interest. This action is not one to recover for injuries to the decedent, but to recover damages to certain beneficiaries by the death of decedent. Steel v. Barr, 28 Ohio St., 191.
    The admission of this- character of evidence it seems to us is upon the theory that there is a privity of interest between the next of kin and the deceased. This might be true if the action was under the common law — but this right of action being created by legislation — clearly defining the purpose of the law and limiting and naming the beneficiaries of the act no privity can exist. Hall v. Crain, 2 W. L. M., 593.
    So that it is manifestly improper and error to admit as evidence against the next of kin, statement of a person who did not have and could not have any interest in the cause of action sued on in the case.

      Such declarations of the injured personare never admissible as evidence of the cause and manner of the injury unless such declarations are a part of the res gestae. JR. B. v. Mara, 26 Ohio St., 185; B. B. v. Brownell, 47 Mo., 214; Ent. v. JEerg, 60 Mo., 214; Stockman v. B.B., 15 Mo. App., 503; Galveston y. Barbour, 62 Tex., 172; Tiffany on Death by Wrongful Act, section 194; 1 Greenleaf on Evidence, section 102, — 15th ed.; 1 Nisi Prius, 166; 2 Dec. 48. The general current of authorities so hold.
    The offered and rejected evidence purported to be a statement of Weaver made two days after the injury telling how the accident occurred. This was a narrative of a past event and under the authorities not admissible.

      Frank Chance and Charles Darlington, for defendant in error.
    In an action, under the statute, by an administrator to recover for the benefit of the next of kin, on the ground of negligence, resulting in death, can the defendant company prove the declarations of the deceased made several days after the accident, as to how it happened, for the purpose of showing that he was chargeable with negligence, directly contributing to the injury? We maintain the affirmative of this proposition, and that in so holding the circuit court did not err. A correct solution of this question we presume depends upon the construction to be given section 6134, Revised Statutes of Ohio. Atkinson, Admr., v. Vil_ lage of Bond I-Iill, 1 Nisi Prius, 166; 2 Dec., 48; Wolf, Admr., v. L. E. <& W. B. Co., 55 Ohio St., 517; Steel v. Kurts, 28 Ohio St., 191.
    If Weaver had lived long enough after his injuries to have prosecuted a suit against the railway company for damages on account thereof to final judgment, such judgment would have been an effectual bar to the right of his personal representative to recover for the benefit of the next of kin, had he subsequently died of his injuries, or if after his injuries he had made claim against the railway company on account thereof, and had adjusted and settled the claim, such settlement would also have barred the personal representative from recovery for the benefit of the next of kin, had he after-wards died from his injuries. Heeht v. 0. & M. By. Go., 132 Ind., 507; Bead'v. Great Eastern By. Go., 3 Q. B. N. S., 555.
    Declarations made by the decedent after injury and against interest were held to be competent against the personal representative in Lehigh Coal Go. v. Jones, 86 Pa. State, 432; Lord v. Pueblo Smelting c& Befining Go., 12 Col., 390; Disbrow v. Toionshi/p of Ulster, 8 Atlantic Reporter, 912; Perigo v. G. B. L c& P. B. B. Go., 55 Iowa State Rep., 326; Lace Admr’%., Appellant, v. <& Grand St. Ferry B. B., 46 N. Y. Superior Court Reports, 448; Meara v. Holbrook et al., 20 Ohio St., 146.
    If Weaver, before .death, had brought an action, then died, the action revived in the name of his personal representative, the declarations of Weaver against his interest would be competent upon the trial of the case. Declarations in such a case do not constitute’ a narration of past events. Greenléaf on Evidence, 1 Vol. Sec. 147. (Redf— ed.); Hollowell & Co. v. Bayless et al., 10 Ohio St., 536.
    Now in the case at bar the action is prosecuted in the name of the personal representative, but not for the benefit of the estate of Weaver, but for another class. As has been said the action is the same, the only difference being that in the event of a recovery the measure of damages differs. Russell v. Sunbury, 37 Ohio St., 373. A ease which fully covers this phase of the question is Stein v. Railroad Company, 10th Philadelphia Reports, 440.
   Burket, J.

The facts showing that the death was caused by wrongful act, neglect or default, and that the act, neglect, or default, was such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, should appear in the petition; and it is not necessaryto aver that if death had not ensued that the deceased would have been entitled to recover damages against the defendant in respect to his injuries so sustained, but such averment can do no harm. The principal questions to be tried are, whether death was caused by wrongful act, neglect or default, and if so, if such act, neglect or default was such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof. If death was not caused by wrongful act, neglect or default, or being’ so caused, the act, neglect, or default, was such as would not have entitled the party injured to recover damages, if living, the action by the administrator must fail. That death was caused by wrongful act, neglect, or default, and that the act, neglect, or default, was such as would have entitled deceased to recover damages in respect thereof, are conditions upon which the action provided for in sections 6134 and 6135, Revised ¡Statutes, are given, and the facts constituting these conditions must be averred in the petition, and established on the trial by competent evidence.

If facts are averred in the petition which would entitle the deceased, if living, to recover damages for the injuries by him sustained, and facts are averred in the answer, or denials therein made, which if true, would prevent a recovery on his part if living, the whole evidence taken together must be of sufficient weight to establish, affirmatively, the facts constituting the conditions upon which the statute gives the right of action, the burden being on the plaintiff. Wolf v. R. R. Co., 55 Ohio St., 517. The defendant, therefore, has the right to introduce any evidence which tends to weaken or disprove the facts necessary to be established to make out the plaintiff’s cause, i. e., the facts constituting the conditions upon which the action is given by the statute.

If death had not ensued, the deceased could not recover damages for his injuries, if it should be established on the trial that his injuries were caused by his own carelessness or negligence; and his statements after the injury and while in his right mind, tending toshow that the injury was caused by his own negligence and carelessness, would be good evidence against him in an action brought in his own behalf during his lifetime. Would it be evidence against his administrator in an action under the statute in behalf of the beneficiaries ?

It is contended by counsel for plaintiff in error, that there is no privity between the deceased and his administrator and beneficiaries, and that the action by the administrator is a new an>d independent action, given by the statute, not connected with, nor dependent upon the right of action of the deceased. This contention is not tenable.

The statute must be construed in connection with the common law as it existed at and before its passage. While at common law the party injured by the negligence of another had a right of action against such party for damages, such right of action does not survive, but abates at his death. The effect of the statute is to pick up this abated right of action of the deceased, and permit it to be prosecuted by the administrator, for the benefit of the next of kin. It is not a new right of action that is prosecuted by the administrator, but it is the same right of action which the deceased had until his death. Upon the death of the injured party, the right of action by the force of the statute passes by succession to the administrator for the benefit of the next of kin.

This succession more clearly appears when considered with reference to the defendant. By his wrongful act he caused an injury which caused a pecuniary loss to both the injured party and to his next of kin. The right of action to recover damages in respect to such act rests in the injured party alone, so long as he lives and should he be compensated in his lifetime, no action can be maintained by his administrator or next of kin for damages, even though it should be clear that the next of kin sustained a great pecuniary loss by reason of the wrongful act. In such cases the pecuniary loss sustained by the next of kin is deemed compensated by the increase of the estate of the deceased. Should the defendant fail to make compensation to the injured party during his lifetime, the liability to make compensation for the pecuniary injury resulting from the wrongful act, instead of abating as at common law, is by force of the statute kept alive, and the administrator succeeds to the right to bring an action upon such liability to recover damages, in the nature of compensation, for the pecuniary loss sustained by thenext of kin by reason of suchwrong-ful act. The liability of the defendant to the party injured, and the liability over to the administrator for the benefit of the next of kin, is for the same wrongful act, and is the same liability; and such liability does not exist in favor of the injured party and his next of kin at the same time, but in succession. There is no new liability created by the statute upon death of the injured party, but the right of succession in the administrator to recover upon the liability already existing, is created.

So that when viewed from the standpoint of either the administrator, or of the party causing the injury by his wrongful act, there is succession in the right of recovery, which succession is created by force of the statute. And where there is succession in rights, there is privity between the parties. It therefore follows, that the administrator and the beneficiaries stand in privity with the deceased, and that such damages as may be recovered by the administrator, are part and parcel of the damages which the deceased had a right to recover during his'life time. This being so, the administrator in his action in behalf of the beneficiaries, is bound by the acts and words of the deceased. Whatever he did, or said, while in his right mind, tending to show that the injury was caused by his own fault, neglect, or carelessness, is competent evidence against the plaintiff, and in behalf of the defendant.

The evidence offered by the railway companj^ and .rejected by the court, was competent and material, and its rejection was prejudicial. The circuit court was right in reversing the judgment and remanding the cause for a new trial.

Judgment affirmed.


author: Williams, J.

text:
    Wasteney v. Schott, Treas. , Etc.

      Statute of limitations — Does not run against the state, unless expressly provided — Collection of taxes — Section 2859, Revised Statutes.

    1. The rule that statutes of limitation do not run against the state unless it is expressly so provided, is applicable in actions where the state, though not a party to the record, is the real party in interest.
    2. While actions under section 2859, of the Revised Statutes, for the collection of personal taxes, are required to be brought in the name of the county treasurer, they are prosecuted in the interest and for the benefit of the state, and the plea of the statute of limitations is not available. Hartman v-Hunter, 56 Ohio St., 175, distinguished.
    (Decided May 10, 1898.)
    Error to the Circuit Court of Hamilton county.
    On the 17th day of July, 1895, Leo Schott as treasurer of Hamilton county, brought suit before a magistrate of that county, against F. W. and C. A..Wasteney, partners as Wasteney Brothers, to recover two hundred and twenty-four dollars and ninety-three cents, the amount of the personal taxes with which the defendants were charged on the tax duplicate of that county for the year 1884. The defendants plead the statute of limitations, the taxes having been due, as shown by the duplicate, for more than six years before the commencement of the action.
    On the trial, as appears from the bill of exceptions, the duplicate was the only evidence offered; and, notwithstanding it showed the taxes had accrued more than six years before suit was brought, judgment was rendered in favor of the plaintiff. That judgment was reversed by the court of common pleas for error of the magistrate’s court in disregarding the plea of the statute of limitations.
    The judgment of the common pleas was reversed by the circuit court, where final judgment was rendered in favor of the treasurer for the full amount of the taxes and penalty. Error is prosecuted here to the judgment of the circuit court.

      Gustavus II. Wald and Charles B. Wilby, for plaintiffs in error.
    The only question in this case is whether to an action by a county treasurer for personal judgment for taxes on personal property, unpaid for more than six years before suit was brought, the statute of limitations can be successfully pleaded.
    The circuit court held it can not, on the authority of Hartman v. Hunter, 8 C. C., 623; 4 C. D., 200.
    But that case has since been reversed by this court in Hartman v. Hunter, 56 Ohio St., 175.
    By the same reasoning, and even a fortiori, the liability here asserted under section 2859 is one created by statute, for personal taxes, unlike real estate taxes, are not even a lien, and the liability to suit for personal judgment is purely a creature of the statute. Until the enactment of section 2859 there was no such liability. Brenchweh v. Drake, Treas., 31 Ohio St., 652.
    A distinction is sought to be made, however, by claiming that some part of the tax sued for was or may have been due as state taxes, and that the statute does not run against the state, and as the statute was pleaded to the whole claim the plea was properly held bad. But it does not appear that any part was for state taxes.
    The privilege of the state, as stated by this court in Hartman v. Hunter, 56 Ohio St., 180, is purely an “exemption,” an “exception,” from the operation of the statute, and like the exemption or exception of infancy, insanity or coverture must be pleaded by the party invoking it. Angelí on Limitation, 6th Ed., section 292.

      Rendigs, Foraker & Dinsmore, county solicitors, for defendant in error.
    The obligation which it was sought to enforce consisted of taxes on personal property, and included the levy made by the state for state purposes, by the county for county purposes, by the school district of the city of Cincinnati for school purposes, and by the corporation of Cincinnati.
    The sovereign power of taxation, which is delegated to the authorities above mentioned in the statutes, is exercised by them on behalf of the state. The proper construction of section 2838 and the only one which has ever been recognized in this state, is that the lien attaches for all taxes which are levied. It is significant, however, that in providing for this lien the legislature designates it as the lien of the state. Counsel for plaintiffs in error admits that all taxes on real estate are a lien upon the property.
    The same intention of the legislature is apparent from the statutes on forfeited lands. Chapter 8, title 13, and especially, section 2899.
    The same intention is not so clearly shown in regard to the taxes on personal property; but there is no reason for making any distinction, and none is made in the statutes. There is no lien provided for personal taxes, the remedy of distraint and a suit under section 2859 being the only ones for the enforcement of the tax. Oha/pman v. Sollcvrs, 38 Ohio St., 378. Section 2859 does not create a liability, but simply provides a method for enforcing a liability already existing. Benchweh v. Brake, 31 Ohio St., 652.
   Williams, J.

The original action was brought’ under section 2859 of the Revised Statutes, which provides that: “When any personal taxes, heretofore or hereafter levied, shall stand charged against any person, and the same shall not be paid within the time prescribed bylaw, for the payment of such taxes, the treasurer of such county, in addition to any other remedy provided by law for the collection of such personal taxes, is hereby authorized and empowered to enforce the collection by civil action in the name of the treasurer of such county against such person for the recovery of such unpaid taxes; * * * and the judgment debtor shall not be entitled to the benefit of the laws for the stay of execution or exemption of homestead, or any other property, from levy or sale on execution in the enforcement of- any such judgment.”

That the cause of action accrued more than six years before the commencement of the suit, is satisfactorily established by the tax duplicate, which was the only evidence introduced on the trial; and it is the contention of the plaintiffs in error, that the action was founded on a liability created by statute, and therefore bar red .under section 4891, of the Revised Statutes, which limits the time for the commencement of actions so arising, to six years after the cause of action accrues. On the other hand, it is claimed the action was not barred, because it was one prosecuted in behalf of the state, to enforce an obligation due to the state, against which the statute does not run. We find nothing’ in the statute creating the right of action in such cases, that fixes any limit of time within which the action majr be brought, or from which it may be fairly inferred any limitation was intended. On the contrary, some of its provisions, and others of our tax laws, afford strong grounds for presuming’ a different legislative intention. The remedy for enforcing the collection of personal taxes by distraint, is not limited in point of time, but may be employed at all times until the taxes are paid. By section 2838, for all taxes charged against real property, the state is given a lien upon it which continues until the taxes with any penalty thereon shall be paid; and by section 1104, the additional remedy for the enforcement of the lien by civil action is provided in language similar to that of section 2859. These remedies by suit are declared to be, in both classes of cases, in addition to all other remedies for the collection of taxes, and were evidently created because it was expected they would' prove more effectual in the enforcement of their collection; and,' it is but a natural and reasonable presumption that the additional remedies were designed to be, not less comprehensive than those in the aid of which they were adopted, and like them unaffected by the lapse of time. The obligation of the citizen to pay his taxes is regarded as a continuing public duty which is discharged only by their payment.

It is not claimed that our statute of limitations is, in terms, made applicable to the state; and the rule is universal that, in the absence of such provision, statutes of limitation do not run against the state, for the reason that laches cannot be imputed to it, and its rights cannot be prejudiced by the neglect of its officers. The proper application of the rule, in an action, is controlled however, by the nature of the rights involved, and the real parties in interest, rather than by the form of the action and names of the parties as they appear on the record. When the action, though brought in the name of the state, is prosecuted for the enforcement of some private or individual right, and the state has no substantial interest in the litigation, the plea of the statute may be interposed. On the other hand, if the state is the real party in interest, the plea of the statute is not available though the action be not prosecuted in its name*; and actions under section 2859, of the Revised Statutes, for the recovery of personal taxes are, we think, of that character, and not subject to the bar of the statute, notwithstanding they are required to be brought in the name of the county treasurer. Revenues are essential to the maintenance of the state and the execution of its governmental functions. Taxation is a recognized constitutional and lawful means of raising such revenues for most, if not all public needs; and the courts will take notice that general taxes levied by the state directly, or through local agencies to which it has delegated that power, constitute a source of revenue for use in the due performance of the functions of the state government. Whether voluntarily paid, or collected by suit, they go partly to the general funds of the state for its disbursement in the administration of public affairs, and are in part disbursed in the due course of local administration by officers exercising the delegated powers of the state, deemed necessary and proper for that purpose. In the latter case, as well as the former, the fund belongs to the state’s revenues, and the disbursement is for the public benefit, although local advantages may also result. Through county, township, municipal, and other organizations, they are paid out in the administration of public justice, the maintenance of the public order and security, the suppor tof the public schools, and other purposes of a public nature pertaining to the state government. Hence, for all such taxes levied on real property the lien thereon provided by statute is declared to be in favor of the state; and while it was probably deemed impracticable to create a lien on personal property for the taxes laid against it, the fund derived from them is expended in common with that arising from real estate taxes, and for the same purposes.

Local assessments, those made on abutting or contiguous property for local improvements according to special benefits resulting from such improvement, may stand on a different footing. While thesé are improvements of a public nature, the assessment goes to the contractor who furnishes the labor and material for their construction. The assessments may be assigned directly to the contractor, in which case their collection may be enforced by suit for his use. Provision is also made for placing them on the tax duplicate, and for their collection by the county treasurer. But in whichever mode their collection is sought, the remedy is in fact for the benefit of the contractor, and the interest of the state in them is nominal and remote. Upon this ground Hartman v. Hunter, 56 Ohio St., 175 is distinguished.

Judgment affi/rmed.


author: Minshall, J.

text:
    State of Ohio v. Johnson.

      Maim and mayhem at common law — Biting of an ear not maiming —Section 78X6, Revised Statutes — Assault and battery.

    1. Maim and mayhem are, at common law, equivalent words, and mean the same thing ; therefore, a count in an indictment charging the defendant with maliciously biting the ear of another with intent to maim, cannot be supported as to the particular intent charged, as the biting of an ear does not in law constitute a maiming.
    2. Nor can a conviction be had on such a count, for biting the ear with intent to disfigure, under section 7316, Revised Statutes, permitting a conviction of an inferior degree of the offense charged, as a biting with intent to disfigure is not inferior to a biting, with intent to maim, under section 6718, Revised Statutes. Both offenses are of the same degree. Barber v. State, 39 Ohio St., 660.
    3. Under an indictment charging an injury to the person of another with intent to maim or disfigure, the party may be convicted of an assault and battery under the provisions of section 7316, Revised Statutes ; the offense charged being simply an aggravated assault and battery.
    (Decided May 10, 1898.)
    On Exceptions of the prosecuting attorney to the rulings of the Court of Common Pleas of Perry county.

      T. B. Williams, prosecuting attorney, for plaintiff in error.
    Mayhem at common law was the violently depriving a man of one of the members of his body, which would render him less able to defend himself in a fight or annoy his adversary.
    The biting of an ear did not constitute the crime of mayhem at common law. 14 Amer: and Eng. Ency., 985, and cases cited.
    Mayhem at common law and maiming under section 6819 are not synonymous. Walker’s American Law, (10th ed.) 602.

      There was no such crime as maiming • at common law. 4 Blackstone (Ohitty’s Ed. of 1891) 205-207.
    Finally the statute of 22 and 23 Car. 2 chap. 1, called the “Coventry act,” was passed. 4 Black, (Chitty’s Ed.) 207. And that act was the same as section 6819, of our law, except the latter part of one section was not in the above act. The above act existed in England for a number of years until it was repealed, together with the original crime of mayhem, by sections 11 and 12 of the act of 9th G. 4 chap. 31; 4 Black., (Ohitty’s Ed. 194), note 1. The conclusion of said section 12 was “with the intent to maim, disfigure, or disable any such person.”
    As we have no common law crimes in Ohio, the legislators intended that the word maim in - section 6819 should apply to all permanent injuries, whether such permanent injury amounted to mayhem at common law or not. Bish. Statutory Crimes, sections 316, 448; 2 Bish. Or. L., sections 1001, 1005; State v. Bail/y, 8 Part (Ala.), 472; Turnman v. State, 4 Texas App., 586 ; Baker v. State, 4 Ark., 56.
    The second count was valid and could resist a demurrer. United States v. Gunther, (Dak.) 38 N. W. R., 79; American Annual Digest of 1888, page 888, section 7.
    Under a statute making- it a misdemeanor to cut off the ear with the intent to maim, the court observed that the word was used in the popular sense of mutilate and not as synonymous with mayhem. Com. v. Newell, 7 Mass., 245.
    The biting of an ear is maiming. 1 Wharton Prec. of Ind., 227, note 1; 22 and 23 Car. 2 Chapt., 1; 14 Amer. and Eng. Ency., 987-988, note 5.

      This court observed that the disabling of a limb was maiming under section 6819. Bidenowr v. State, 38 Ohio St., 274.
    We claim that the gist of the offense is either to maim or disfigure. The two counts in this indictment were upon the same transaction, and it was a question of fact for the jury to determine from the evidence whether he intended to maim of disfigure. Bailyv. State, 4 Ohio St., 440; Jackson v. State, 39 Ohio St., 37; Hotelling v. State, 3 C. C. R., 630; 2 O.D., 336; Beasley v. People, 89 111., 571; Com. v. Andrews, 132 Mass., 263; State v. Smith, 24 W. Va., 814; State v. Baily, 50 Ohio St., 641.
    Upon the same principle it would seem that where two similar and closely allied offenses arise from the same transaction and each must be established, if at all, by substantially the same evidence, each should be permitted to be set forth in separate counts of the same indictment. People v. Slatterly, 12 Hun., 167; Hogan v. State, 61 Da., 40; Com. v. Ishmahl, 134 Mass., 201; People v. Sweeny, 55 Mich., 586; Armstrongs. People, 70 N. Y., 38.

      Maurice H. Donahue, counsel appointed by the court to argue exceptions.

      Thos. B. Williams, prosecuting attorney, for exceptions.
    The prosecutor claims that the word maim, as used in section 6819, of the Revised Statutes of Ohio, and the word mayhem, at common law, are not synonymous, but that maim under said section means and includes all classes of permanent injuries, whether said permanent injuries amount to mayhem at common law or not. He does not define the word disfigure.

      Now, if his logic is correct on this proposition, the words maim and disfigure, which appear in the text of this statute, must be synonymous terms, for the reason that all injuries contemplated in said statute are, in their nature, necessarily permanent injuries. If the words maim and disfigure are synonymous, why does not the statute contain the word maim only, or the word disfigure only, without using both terms? It seems to us, upon all rules for the construction of statutes, that the legislature understood and intended the word maim and the word disfigure to mean wholly distinct criminal acts. Bishop on Statutory Crimes, sections 82, 88, 93,96.
    If the words maim and disfigure are, as claimed by the state in this action, synonymous, (viz: meaning a permanent injury merely) then the legislature has inserted in this statute either the word “maim” or “disfigure,” idly and without meaning — which amounts to gross tautology. This it seems to us, cannot have been the intention of the legislature from the text itself. Cooley’s Con. Limitations, (6th ed.) page 72; Attorney General v. Detroit <& Erin Plank Road Go., 2 Mich., 138 ; People v. Bwrns, 5 Mich., 114; Manly v. State, 7 Md., 135; Parkinson v. State, 14 Md., 184; Raib'oad Company v. G^'egory, 15 111., 20; Ryegate v. Wm-dsboro, 30 Vt., 746; Den v. Dubois, 16 N. J., 285; Bigelow v. Railroad Go., 27 Wis., 478; Grawfordsville, etc., Go., v, Foetoher, 104 Ind., 97.
    If, then, the legislature did not place these words in the statute idly and without distinct meanings, we must undertake to distinguish between the meaning of the word maim and the word disfigure. Cooley’s Con. Lim., pages 74 and 75; State v. Noble, 118 Ind., 350; 10 Pick., 407 and 409; 2 Met., 408 ; 8 Mass., 418; 2 Bailey, 541 and 554; 3 Mass., 296; Bex v. Morris, 1 B. & Ad., 441; 5 Md., 11; US. v. Freeman, 3 How., 556; 12 N. H., 284; 42 N. Y., 177; Bishop on Statutory Crimes, page 67; Bex v. Palmer, 1 Leach, 4 ed., 352 and 355; Commonwealth v. Slack, 19 Pick., 304; Crespigny v. Wittenoom, 4 T. R., 790; Anderson: (Law Dictionary, page 646.) “To commit mayhem.” The author cites Bidenour v. State, 38 Ohio St., 273.
    Bouvier’s (Law Dictionary, page 94): Maim, pleadings. This is a technical word necessary to be introduced into all indictments for mayhem. 4 Inst., 118; Hawk. B. 2. c. 23. s. 17, 18, 77; Hawk. B. 2. c. 25. s. 55; 1 Chit. Cr. Law, 244.
    Following the rules of construction of statutes, it seems to us plain that the legislature in using the word maim and the word disfigure, intended by the word maim to designate all such criminal acts as were included in the common law term, mayhem, and to add thereto certain other criminal acts, which are designated by the word disfigure; and, if this be true, then this statute contemplates and provides punishment for two distinct and separate classes of crime, and becomes plain and consistent. Story on Const., section 407; Evans v. Meyers, 25 Pa. St., 116; Sadler v. Langham, 34 Ala., 311; Barnes v. Fvrst Parish in Falmouth, 6 Mass., 401; Union Pacfic B. B. Co. v. U. S., 10 Ct. of Cl.Rep., 548; s. c. in error, 91 U. S., 72; Cooley’s Con.Lim., page 84; Whar. Am. Crim. Law, (9 ed.) section 581; Bouvier’s Law Die., volume 2, page 94 ; 4 Bl. Com., page 646; Pulton, De Pace Regis., fol. 15, section 58; 1 East P. C., 393; B. v. Hagan, 8 C. & P., 169; Moore's Lessees v. Vance, 1 Ohio, 10; Turney v. Yeoman, 14 Ohio, 218; Crogan v. Carrison, 27 Ohio St., 63; Gray v. Askew, 3 Ohio, 466. Bishop Statutory Crimes, note 4 to section 316. Bishop’s Criminal Law, volume 2, section 1001, division 1 and 2.
    It further seems to us, that the claim of the state upon this question resolves itself into an absurdity in any event, for, if as claimed, in the brief of the prosecuting attorney, the word maim includes all permanent injuries and consequently includes disfiguring under this statute, we think it idle to have charged this defendant in one count with biting the ear with intent to maim, and in another count with biting the ear with intent to disfigure, the two counts ‘ being logically identical in meaning, and therefore-one or the other thereof surplusage, and subject to being stricken from the indictment. If this be true, in what was the state injured by the demurrer being sustained. Wharton’s Crim. Law, 141; Eggleston v. State, 41 la., 574; State v. Benham, 7 Conn., 414; State v. Hennesy, 23 Ohio St., 339; Bishop’s Crim. Procedure, volume 1, sections 482-483; Hinkle v. Commonwealth, 4 Dana, 518 ; Devere v. State, 5 C.C., 509 ; 3 C. D., 249.
    And again, how is the state prejudiced when defendant has been acquitted on the first count, it being' the lesser crime of the two and necessarily included in the second count.
   Minshall, J.

David Johnson was prosecuted on an indictment presented by the grand jury of the county, framed on the provisions of section 6819, Revised Statutes. The section, so far as it is applicable to this case, is as follows: “Whoever with malicious intent to maim or disfigure, cuts? bites, or slits the nose, ear or lip, cuts or disables the tongue, puts out or destroys an eye, cuts off or disables a limb or any member of another person” is declared guilty of an offense punishable by imprisonment in the penitentiary. The indictment contained two counts. In the first it was charged that he maliciously “did bite the ear of one Reuben Mitchell with intent to disfigure, and, in the second, that he maliciously “did bite the ear of one Reuben Mitchell with intent to maim.” A demurrer was sustained to the second count, and, on a plea of not guilty, he was acquitted on the first count. The prosecuting attorney took a bill of exceptions to the ruling on the demurrer to the second count, and prosecutes the same here under the provisions of the statute in that regard, to test the accuracy of the ruling.

The demurrer presents the question whether the malicious biting of the ear of axxother can be charged as done with intent to maim.

There is no question, we think, but that maim as a noun, and mayhem are equivalent words, or that maim is but a newer form of the word mayhem —the difference being in the orthography and not in the sense. Webster’s Unabridged Dictionary: “Maim,” as a noun, is there defined the same as mayhem: “The privation of the use of a limb or member of the body by which one is rendered unable to defend himself or to annoy his adversary.” This is the definition of mayhem at common law. 1 East, P. C. 393; 1 Whar. Cr. Law, section 581. Hence the verb “to maim” is accurately defined in Anderson’s Law Dictionary, as follows: “To commit mayhem.” So, at common law, whatever the injury to any member of the body might be, if it did not permanently affect the physical ability of the person to defend himself or annoy his adversary, it did not amount to mayhem. Neither the biting of an ear nor the slitting- of the nose was regarded as an injury of this character. Clark’s Cr. Law, 182; 3 Bl. Conn., 121. The outrage upon Sir John Coventry, who had been set upon in the street and his nose slit, for words spoken in Parliament, led to the adoption of what is known as the Coventry Act, 22 and 23 Char. II. This act made it a felony without benefit of clergy, where any one unlawfully cut out or disabled the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disabled any limb or member of any other person, with intent to maim or disfigure him. 4 Bl. Com., 206. Our statute is substantially the same. Any of the injuries there named, done with the intent “to maim or disfigure” is punishable by imprisonment in the penitentiary. Whether it be the biting of an ear, or the putting out of an eye, or the cutting off of a hand, each is alike regarded as a crime and punished the same way; or, in other words each is of the same degree of criminality. Section 7316, Revised Statutes.

The question in the case is, whether the second count in the indictment charges an offense against the laws of the state? It does not for reasons stated charge a maiming. Then does it charge the offense of biting the ear with intent to disfigure ? Such intent is not averred in the count; and, unless the intent to maim includes the intent to disfigure, there can be no conviction on the second count for such an offense. Evidence of an intention to disfigure would be a fatal variance from the intent laid in the count. The intent in this case must depend upon the nature of the injury, in connection with the character of the member on which it is inflicted. If the member be not one of use to the person in defending himself, an injury to it cannot be said to have been done with intent to maim. It is provided, among other things, in section 7316, Revised Statutes, that: ‘‘ When the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree.’’ In Barber v. State, 39 Ohio St., 660, it was held that the offense of cutting with intent to kill, and that of cutting with intent to wound are offenses of the same degree, under the provisions of sections 6820, Revised Statutes, making it an offense for any one to cut another person “with intent to kill, wound or maim.” The indictment charged a cutting with intent to kill; the verdict of the jury was, “guilty of cutting' with intent to wound.” The court held that the indictment was not supported by the verdict, for the reason that the offense of cutting with intent to wound is not an offense inferior in degree to that of cutting with intent to kill. By a parity of reasoning it follows that the unlawful biting of the ear with intent to disfigure is not an offense inferior to that of biting it with intent to maim; and an indictment charging' the biting to have been done with intent to maim, would not be supported by evidence of an intent to disfigure — there would in such case, be a material variance between the proof and the allegation.

But this does not exhaust the inquiry, for the question remains, does the count charge any offense against the laws of the state, if so the court erred in sustaining a demurrer to it. Now, it seems apparent that the malicious biting of the ear of another, whether to maim or disfigure, amounts to an assault and battery — an offense inferior in degree to an assault with intent to maim or disfigure — the offense charged being simply an aggravated form, of assault and battery of which the defendant could have been convicted on the count demurred to, on proof of such an offense. Heller v. State, 23 Ohio St., 582; Barber v. State, supra; 3 Bl. Com., 121.

For this reason the court erred in sustaining a demurrer to it.

Exceptions sustained.


author: Shauck, J.

text:
    The L. S. & M. S. Ry. Co. v. Andrews, Admr.

      Evidence — To sustaiji allegation by proof of circumstances — Natural inference — Damages for wrongful death.

    In the absence of direct evidence in its support, an allegation that one sustained injuries by reason of the negligence of the defendant is not sustained by proof of circumstances from which the fact that his injuries were so sustained is not a. more natural inference than any other.
    (Decided May 10, 1898.)
    Error to tne Circuit Court of Lucas county.
    This is a petition in error to reverse a judgment of the circuit court affirming a judgment of the court of common pleas awarding damages to Andrews, as administrator, for negligently causing the death of his intestate, The substance of the original petition of the administrator is, that Barton was a brakeman in the service of the company, and upon the night of his death was head brakeman on a freight train; that it was his duty to be upon the front end of the train, or in the cab, and from that position to keep a constant look-out for the rear end of the train during the passing of a grade which the train had just completed; that the night was dark and stormy, and that the observation of the light, at the rear end of the train, was rendered more difficult because in making up the train, passenger cars of greater width than the freight cars had been placed between the locomotive and the caboose; that while in the discharge of his duty, he was leaning out of the gangway between the engine and tender to see the lights on the side of the caboose, his head struck the casing of the bridge which the company negligently maintained at a height of eight or nine feet above the level of the bridge, and so near to the train as to be a source of danger, of which the deceased had no knowledge. The answer admitted that the deceased sustained fatal injuries at the time and place alleged, but denied all allegations of negligence, and averred that the injuries were sustained by reason of the want of care on the part of the decedent. The allegation that the deceased was negligent was denied by reply. -
    The facts clearly established by the evidence are that the bridge was in no respect out of repair, but was in the condition in which it had been from the time of its erection, about eight years before. The train on which Barton was head brakeman passed over it very rapidly, and while it was passing, he came in collision with the easing which enclosed the truss, receiving injuries which were immediately fatal. The fact of such collision was shown by marks upon the casing commencing near the end at which the train entered the bridge, and about two feet from the top of the casing, the marks descending from that point to the further end of the bridge near which the body was found. Barton had been employed by the company as brakeman about six months on this and another divison, and had passed over the bridge something over twenty times. On the night of his death the engineer and fireman saw him standing in the gangway between the locomotive and tender shortly before they reached the bridge, but he was not seen by any one thereafter until he was found dead. The casing was something more than two feet from the train. At the conclusion of the plaintiff’s evidence the court was requested to direct a verdict for the company, which was denied. After a verdict in favor of the administrator, the company moved for a new trial on the ground, among others, that the verdict was not sustained by the evidence and was contrary to law, and this motion was overruled.

      Potter db Emery, for plaintiff in error.

      George B. Boone and J. K. Hamilton, for defendant in error.
   Shauck, J.

It is not believed to be necessary to repeat here the familiar rules of-law concerning liability for neglig’ence. The case is susceptible of clear solution by the application of one of those rules to the evidence in the record. To reach at once the point on which our decision is to be based, it is assumed that the company was negligent in maintaining the bridge with the casing so near the train, and that the deceased did not, with knowledge, acquiesce in such negligence so as to defeat the action. The theory presented in the original petition, and in the argument of counsel, is, that Barton was in the discharge of his duty to watch the rear end of the train to see if it had parted while descending the grade, and while so engaged was leaning from the side of the tender, looking for the light on the side of the caboose, in the rear of the wider coaches, and while so engaged he was killed. The theory is not supported by any evidence whatever. Barton was last seen alive shortly before the locomotive reached the bridge when he was standing on the gangway, or platform, between the engine and tender, with his lantern on the floor by his side. After the train had passed the bridge it was noticed that while his lantern was still there he had disappeared. No one saw him leaning over the engine or make any effort to see the rear of the train. No other evidence in the case suggests the manner of his death except the marks on the casing. Certainly an allegation of fact may be established by circumstantial evidence, but the circumstances to have that effect must be such as to make the fact alleged appear more probable than any other. The fact in issue must be the most natural inference from the facts proved. Not only did the circumstances here disclosed fail to make it appear that Barton’s death occurred in the manner alleged, but since the point at which his head struck .the casing was certainly not more---it seems to have been less— than two feet above the level of the platform upon which he was standing when last seen, the natural inference is that he fell from the train. The circumstances fail to showthat the death of Barton was due to the negligence alleged against the company. A recovery upon such evidence cannot be sustained, while it is held that the employer is not the insurer of the safety of the employee. A verdict for the defendant should have been directed as requested.

Judgments of the circuit court and court of common pleas reversed.