author: Wanamaker, J.

text:
    The State of Ohio v. Schaeffer.

      Manslaughter—Killing by automobile — Allegations of indictment sufficient, when — Section 13583, General Code — Act unlawful by more than one statute — Effect of not proving an alias — Unreasonable operation of motor vehicle—Validity of Section 12603, General Code—Evidence — Proximate cause of death — Charge to jury — Criminal law.

    1. Manslaughter is the unlawful killing of another without malice, either upon a sudden quarrel or unintentionally, while the slayer is in the commission of an act made unlawful by a valid statute.
    2. In an indictment for manslaughter such unlawful act need not be pleaded in the indictment. The short form of indictment provided in Section 13583, General Code, is not in conflict with the constitutional guaranty that the accused shall be advised of “the nature and cause of the accusation against him.”
    3. Such unlawful act relied on by the state as the basis for the charge of manslaughter may be made unlawful by more than one statute. In such case it is error to compel the state to elect upon which statute it relies for a conviction. (Bailey v. The State, 4 Ohio St., 440, approved and followed.)
    4. -Where an indictment for manslaughter charges the defendant with having “unlawfully killed Adelbert Chaky, sometimes otherwise known as Buley Csaki,” and there is no evidence tending to prove the alias, or that both names were the names of the same person, such failure is not a fatal variance, because it is not prejudicial to the merits of the case and the substantial rights of the defendant. (Goodlove v. The State, 82 Ohio St., 365, disapproved.)
    5. Section 12603, General Code, prohibiting the operation of a motor vehicle “at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person” is a valid statute.
    6. Where all the evidence clearly and conclusively shows that the unlawful act relied upon by the state directly caused the killing, and there is no evidence to the contrary, the failure of the court to charge on assault or assault and battery is not error. (Marts v. The State, 26 Ohio St., 162, and Dresback v. The

      State, 38 Ohio St., 365, approved and followed. So far as the case of Lindsey v. The State, 69 Ohio St., 215, is in conflict with the two foregoing cases, said Lindsey case is disapproved.)
    7. The unlawful act relied upon as the predicate for manslaughter must be the proximate cause of death. If death resulted from any other cause, or there be a reasonable doubt as to the unlawful act being the proximate cause of death, the jury should acquit. But where, upon 'the undisputed facts, it clearly and ■conclusively appears to a moral certainty that the unlawful act complained of was the proximate cause of death, a failure to so charge, especially where there was no request to so charge, is not reversible error.
    8. In a prosecution for manslaughter under Section 12603, General Code, the court should charge the jury that the standard of conduct required of the defendant in the operation of his car is that of an ordinarily careful and prudent person, and that if he did not operate the car- “at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person,” as would appear to such ordinarily careful and prudent person in the then situation, he was not guilty of manslaughter.
    (No. 15439
    Decided April 17, 1917.)
    Error to the Court of Appeals of Lake county.
    The defendant in error was found guilty of manslaughter 'by a jury in the court of common pleas of Lake county. A motion for new trial was overruled. Error was prosecuted in the court of appeals of Lake county, which court reversed the judgment of the court of common -pleas and remanded the cause for a new trial. Error is prosecuted to this court to reverse the judgment of the court of appeals and affirm that of the common pleas.

      Mr. George C. von Beseler, prosecuting attorney, and Mr. Harry E. Hammar, for plaintiff in error.

      Mr. Homer Harper and Messrs. Alvord & Blakely, for defendant in error.
   Wanamaker, J.

Realizing the great importance of the questions arising in this case, both to the public for its safety of life and limb in the public streets and highways and to automobilists as to their rights in the use of the public streets and highways, unusual care and consideration has been given this case and the law applicable thereto.

Now, what are the facts of this case so far as necessary for its intelligent and just determination?

The state claimed that on the second day of August, 1915, in broad daylight, at about 5:30 p. m., the defendant in error, E. E. Schaeffer, was driving a touring car at from twenty-five to thirty miles an hour in a southerly direction, on the left side of one of the principal streets, known as High street, in the village of Fairport, having a population of about 3,000, and that he then and there and thereby ran over and fatally injured Adelbert Chaky, “sometimes otherwise known as Buley Csaki,” a boy less than three years of age; that this was a thickly-settled community and that a large number of children were accustomed to play on this part of the street and were so playing at the time of the killing; and that said children were then and there seen, and were admitted to be seen, by the defendant.

The state further claimed that such high and dangerous rate of speed of said car was in violation of Section 12603, General Code, which reads:

“Whoever operates a motor vehicle or motorcycle on the public roads or highways at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person, shall be fined not more than twenty-five dollars,” etc.

And also in violation of Section 12604, which reads:

“Whoever operates a motor cycle or motor vehicle at a greater speed than eight miles an hour in the business and closely built-up portions of a municipality or more than fifteen miles an hour in other portions thereof ór more than twenty miles an hour outside of a municipality, shall be fined,” etc.

The defendant denied the rate of speed charged by the state and claimed to have been driving his automobile at only eight miles per hour at the time named.

At the close of the state’s evidence the defendant moved the court to require the state to elect under which statute, to-wit, Section 12603 or Section 12604, it would rely for conviction. The state objected to the election. The court overruled the objection. Thereupon the state elected to proceed under Section 12603.

While this question was not before the court of appeals, the state having secured a judgment in the court of common pleas in its favor notwithstanding this ruling of the trial judge, we deem it of sufficient importance to the criminal jurisprudence of the state, and to the public interest as well, to review this ruling.

The fair trial guaranteed by the constitution and law of the land requires that it be fair; not only to the defendant, but fair likewise to the plaintiff, the state, the people of Ohio.

The matter of election has been before this court so often that it would seem there should be no doubt as to the rights of parties under a long-established rule of criminal procedure.

One of the earliest cases is that of Bailey v. The State of Ohio, 4 Ohio St., 441. It is doubtful if the supreme court of Ohio was ever more distinguished for its legal learning and logic than at that time, when it was composed of Chief Justice Allen G. Thurman and Associate Justices Rufus P. Ranney, Thomas W. Bartley, Joseph R. Swan and William Kennon.

In the opinion of that case, in which all concurred, the following is pertinent:

“When an indictment charges two or more distinct offenses, differing in their nature, or arising out of distinct and different transactions, the court may compel the prosecutor to elect upon which charge he will proceed. But such election will not be required to be made, where the several charges in the indictment relate to the same transaction, or are simply variations or modifications of the same charge, with a view of meeting the proof.”

Manifestly there was but one transaction before the court in the case at bar. There was but one offense charged, and that was manslaughter; and there was also only one unlawful act, though one statute may have designated it in one form and another statute may have designated it in another.

We hold that, under the conceded facts of this case and the' settled rule of criminal procedure in Ohio, it was error against the state to require the prosecutor to elect.

This same doctrine is approved and followed with reference to the manner in which a single offense is charged in Jackson v. The State, 39 Ohio St., 37; State v. Bailey, 50 Ohio St., 636, and Carey v. The State of Ohio, 70 Ohio St., 121.

The errors complained of before the court of appeals, and which are here for review, may be briefly stated as follows:

1. That the indictment did not set out facts sufficient to constitute a charge of manslaughter.

2. Error in the cross-examination of the defendant.

3. A fatal variance between the charge in the indictment and the evidence in the case, the indictment charging that the defendant killed “Adelbert Chaky, sometimes otherwise known as Buley Csaki;” that the evidence tended to show that defendant killed Adelbert Chaky, yet there was no evidence to prove that the boy was sometimes known as Csaki; and that therefore the case of Goodlove v. The State of Ohio, as found in 82 Ohio St., 365, requires reversal.

4. Error in failing to give defendant’s request as to the charge of assault and battery.

5. That Section 12603, upon which the state solely relied after election for the necessary “unlawful act,” is unconstitutional and void for the reason that it is too indefinite and uncertain in its terms; that it violates the constitutional guáranty to the accused to sufficiently advise him of the nature of the accusation against him.

6. That if such statute (12603) is a valid statute, the court failed to properly charge as to the terms of the statute with reference to “what would be a reasonable and proper operation of an automobile under the conditions of the particular case.”

7. That the court erred in its charge to the jury in failing to state that any unlawful speed of the car, if there was such unlawful speed, must be the direct and proximate cause of the death of the child.

Now as to the first assignment of error, to-wit, that the indictment did not set out facts sufficient to constitute a charge of manslaughter, the indictment upon which the defendant in error was tried, with the formal parts omitted, reads: “That E. E. Schaeffer did unlawfully kill Adelbert Chaky, sometimes otherwise known as Buley Csaki, then and there being,” etc.

In short, it was an indictment for manslaughter charged in the short form, as provided in Section 13583, General Code. This is the form that has long been in use in Ohio, and has been approved repeatedly by this court as sufficiently charging the offense of manslaughter.

Manslaughter, as known in Ohio, is defined as follows: “That if any person shall unlawfully kill another without malice, either upon a sudden quarrel or unintentionally, while the slayer is in the commission of some unlawful act, every such person shall be deemed guilty of manslaughter,” etc. (33 O. L., 33; 1 S. & C., 403.)

This is the old form of the statute, prior to revision and codification, and has been approved by this court as a correct definition of manslaughter under the present statute. Johnson v. State of Ohio, 66 Ohio St., 59, 63.

It was further held in the Johnson case, that the unlawful act must be one prohibited by the statute of Ohio.

The court of appeals rightfully held the indictment good.

We come now to the second ground of error, touching the cross-examination of the defendant.

The defendant had denied all knowledge of having struck the boy, and testified that he knew nothing about it until he returned home.

He was then asked: “Did you at any time go up there to find out what was claimed or what you were accused of?” His answer was, “No, sir.”

Several questions of like character were asked.

It has always been held admissible to show the conduct of the accused immediately after the time he is charged with having committed an offense, for the purpose of showing innocent or guilty conduct, as the case may be.

There was no error in this line of cross-examination, and the court of appeals so held.

The third error complained of is a variance between the charge in the indictment as to the party killed and the proof upon the trial. The indictment averred the person killed as “Adelbert Chaky, sometimes otherwise known as Buley Csaki.”

The evidence shows that the dead child was named Adelbert Chaky, but there was no evidence touching the fact that he was “sometimes otherwise known as Buley Csaki,” and it is therefore claimed that under authority of Goodlove v. The State of Ohio, 82 Ohio St., 365, there was a fatal variance and that the judgment should be reversed.

It is difficult to see any substantial distinction in principle between this claim of error and the claim of error in the Goodlove case. True, in the Good-love case the first name was unproved by any testimony, and in this case the second name is unproved by any testimony, and in each case there is no evidence whatsoever to prove that both names were names of one and the same person.

The purpose of pleading an alias is to further advise the defendant of the identity of the person killed, to advise him that such person was known by different names, and to qualify the testimony of the different witnesses who may have known him under these differing names. In no case is a mere alias a matter of such necessary and indispensable description that failure to prove the same should be considered by a court of justice as prejudicial to the substantial merits of the case. In this respect the case of Goodlove v. The State of Ohio, supra, is disapproved.

The next error complained of, number 4, was the refusal to give defendant’s request as to assault and battery.

It is a well-settled rule of our law, applicable as well to civil as to criminal causes, that the charge of the court shall be confined to the material issues of each given case. It is as much error to fail to charge upon an issue of fact in the case as it is to charge upon some issue of fact not in the case. In either event it is a question for the courts to determine whether or not such error is prejudicial to the substantial rights of either party to the case.

In the case at bar there was no question but that the killing of the child was the natural and direct result of the car striking the child. The overwhelming evidence is. clear, convincing and conclusive as to that fact. There is not even a suggestion or suspicion to the contrary. It would have been in that event absolutely absurd for the court to charge upon the question of assault and battery, because that issue was in no wise raised in the case.

If the defendant was, at the time of the killing of the child, engaged in the commission of an unlawful act, one prohibited by the Ohio statute, and death directly resulted from such act, the offense was manslaughter; nothing more and nothing less. If he was not engaged in the commission of such unlawful act, then, whether death did or did not result, there was neither manslaughter nor assault and battery. No crime against any statute had been committed. • True, in cases of aggravated assault, such as assault with intent to rob, to rape, to kill, and the like, simple assault or assault and battery are generally included offenses for which conviction may be had; and this is true ofttimes in homicide where the evidence would warrant a charge as to assault, or assault and battery, but the evidence in the case must be such as to raise such an issue. In short, if the death may or may not have directly resulted from the assault or the assault and battery, it is a question to be submitted to the jury as to whether or not death was the proximate result of the assault or assault and battery. But where there is no such issue, it is manifest mockery of the rights of the state and of the cause of justice to inject this issue, and, in a clear case of murder in the first or second degree, or any homicide, furnish the jury with an inducement and an invitation to bring about a miscarriage of justice by the easy route of assault and battery.

We are not without previous authorities to sustain this holding. One of the oldest and best considered cases upon this subject is Marts v. The State, 26 Ohio St., 162. This was a case of manslaughter, in which the defendant interposed self-defense. The fourth paragraph of the syllabus reads:

“4. On the trial of an indictment for murder it is competent for the jury, where the evidence justifies it, to find the defendant guilty of an assault and battery only, and it is error to the prejudice of the defendant to instruct the jury otherwise.”
At first blush this would seem to sustain the contention of the defendant in error, but the proposition is qualified by the language, “where the evidence justifies it.”

Judge Welch, in his clear and cogent opinion, says, at page 168:

“We hold also that the court should have instructed the jury, as requested, that it was competent for them, if, in their opinion, the evidence justified it, to find the defendant guilty of an assault and battery only, and that the refusal of the court to give such an instruction was error to the prejudice of the defendant. It is true that if death resulted from the unlawful assault and battery, the assailant was guilty of manslaughter; but the jury might have found that it resulted from some other cause. Had the court charged the jury, that if they found that the death resulted from the assault and battery, they could not properly find him guilty of assault and battery only, the charge would have been right.”

Another well-considered case is that of Dresback v. The State, 38 Ohio St., 365, which also involves a charge of murder in the first degree. Justice White in his opinion says:

“The charge [of the trial judge], in effect, told the jury that their duty would be fulfilled, in case they found the accused guilty, by returning a verdict for. murder in the first or second degree, or for manslaughter. The evidence against the accused tended to prove that he purposely killed his wife by administering to her poison; and it tended to prove no other grade of offense. If the jury found him guilty, it was their duty to find him guilty of murder in the first degree; but if the charge was not proved he was entitled to an acquittal. The court, however, instructed the jury that they might, consistently with their duty, find him guilty of murder in the second degree, or of manslaughter.”

Justice White clearly holds that the crime charged was first degree murder or nothing, because there was no evidence tending to prove any other grade of offense, and that, if that charge was not proved, the accused was entitled to an acquittal.

Defendant in error relies chiefly upon what may be considered as included offenses, as suggested by Section 13692, General Code:

“Upon an indictment, the jury may find the defendant not guilty of the offense charged but guilty of an attempt to commit it, if such attempt is an offense at law. 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 thereof. If the offense charged is murder, and the accused is convicted by confession in open court, the court shall examine the witnesses, determine the degree of the crime and pronounce sentence accordingly.”

Now, what is meant here by degree of thé crime?

Upon a general plea of guilty could the court find the accused guilty of assault and battery ? It would be just as reasonable for the court so to find as for the jury upon trial so to find. If the assault was unquestionably fatal, if the wound made was unquestionably the proximate cause of the death of the deceased, what folly it would be to relieve the accused of his crime of murder by conviction for assault and battery, with two dollars and costs.

Under this statute, in a case of homicide, assault and battery is not one of the offenses mentioned as of an inferior degree. This assault, or assault and battery, plea, in connection with clear and undoubted cases of murder, has been overworked to the great prejudice of the state, to the lessening of confidence in the judgments of our courts and juries, and to the undermining of the safeguards provided by law for the security and protection of human life.

The only case of murder brought to our attention where a contrary doctrine is held is that of Lindsey v. The State of Ohio, 69 Ohio St., 215. In that case, however, the question was as to whether or not there could be a valid conviction of murder in the second degree under the charge of murder in the first degree. The question of assault and battery was not raised.

We approve and adhere to the doctrine laid down in the cases of Marts v. The State, supra, and Dresback v. The State, supra, as the sounder and safer doctrine, and to the extent that the Lindsey case modifies that doctrine upon a charge of assault and battery the same is disapproved.

This assignment of error is not well taken and the court of appeals was right in so holding.

The fifth assignment of error urges that the statute, Section 12603, General Code, is unconstitutional and void for the reason that it does not observe the constitutional guaranty of sufficiently advising the defendant of the nature of the accusation against him, in that the statute is too indefinite and uncertain in its terms.

It is claimed that the words “reasonable” and “proper” are so general, comprehensive, and variable, that it would be impossible for the defendant to know, or for the jury to fairly determine, what was a violation of the statute; that juries in one case would hold a speed to be reasonable, while the same speed under the same circumstances might be held by another jury in the same county, at the same term, to be unreasonable. In short, it is urged that the statute should definitely fix what is a reasonable speed and a proper operation of a car.

The constitutional guaranty is in very broad terms. It is the defendant’s right “to demand the nature and cause of the accusation against him, and to have a copy thereof.”

The degree of particularity and specification required in the indictment is not fixed by the constitution, but rather is fixed by the decisions of our courts. There can be no violation of the constitutional provision in this respect, by reason of the generality and indefiniteness of any averment set forth in the statute, so long as the indictment does advise the accused of the “nature and cause of the accusation.” Yet courts ha’ve nullified statutes because the language was too uncertain and too indefinite to ascertain the meaning of the legislature, and also because the language did not in any wise advise the public as to what was or what was not an offense under it.

The legislature, however, in this instance, saw fit to fix no definite rate of speed for the car, except to require that the car should not be operated at a speed “greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person.”

In short, the legislature wrote into the statute what has become known as the “rule of reason” ever since the Standard Oil and Tobacco Trust cases were decided by the supreme court of the United States. (221 U. S., 1, and 221 U. S., 107.)

In those cases the supreme court of the United States read into the statute the so-called “rule of reason,” holding that the anti-trust act really was not a denial of all restraint of trade, but only a denial of unreasonable restraint of trade.

It would hardly be suggested that the supreme court of the United States read into the statute something that made the statute unconstitutional; or read into the statute something that made it so indefinite and uncertain that it was incapable of advising the public as to what was or was not an offense under it, or that made the statute practically unenforceable. And yet, by parity of reason, it is claimed in this case that the legislature, which wrote into the statute the same “rule of reason,” thereby in effect nullified such statute, because of the indefiniteness and uncertainty of its terms. The contention is not sound.

The suggestion that juries on the same state of facts may hold one way in one county, and another way in another county, indeed that in the same county upon the same state of facts one jury may hold one way and another hold another way, is no argument against this contention. That is inevitable under any system of jurisprudence on any set of facts involved in a criminal transaction. Courts differ in their judgment, juries differ in their judgment, but that is no reason for the abolition of either, or for denying them jurisdiction sufficient to enforce the administration of statutes like the one in question.

In our whole criminal procedure, even in capital and the most atrocious cases, where a man’s life and liberty for life are involved, it is made the special province and duty of juries to determine what is “reasonable,” and whether or not there is a “reasonable” doubt of the defendant’s guilt. Of course that is a conclusion — almost incapable of precise and specific definition. What one jury might hold to be a reasonable doubt, another jury would hold the contrary; and still there is no way other than to leave the question to the jury to determine what is and what is not a “reasonable doubt.”

Again, one of the most common defenses interposed in prosecutions for murder is that of self-defense. It is the settled law of this state, as in most others, that if the defendant at the time of the killing bona fide believed himself to be in danger, whether he was or not, and had “reasonable” grounds for so believing, and used force pursuant to such situation, it is excusable homicide; and yet it is for the jury to put themselves in the situation of the parties, particularly that of the defendant, and determine from the evidence as to whether or not the defendant had “reasonable” grounds. And so it is throughout our entire criminal jurisprudence.

Our statute is much like the Massachusetts statute enacted in 1909, which reads:

“Every person operating a motor vehicle * * * shall run it at a rate of speed at no time greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public.” Acts, 1909, p. 829.

Nebraska has a very similar statute, which has been upheld by the supreme court of that state in Schultz v. State, 89 Neb., 34.

A contrary doctrine has been held in Hayes v. The State, 11 Ga. App., 371, which principle was affirmed in Strickland v. Whatley, 142 Ga., 802, and also in Sloan & Billings v. Pasche, 153 S. W. Rep., 672, by the Texas Civil Appeal.

We feel the Massachusetts, and Nebraska doctrine is much more conducive to public safety and the needs of all the varying situations in public travel than is the doctrine laid down by the courts of Georgia and Texas.

The first Ohio statute enacted using similar language was passed in 1906 (98 O. L., 320). The body of that act reads:

“No person shall operate a motor vehicle on a public .highway at a rate of speed greater than is reasonable or proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person, or the safety of any property.”

We are not advised as to the number of automobiles in the state of Ohio at that time, but the situation created by their operation on the public highways was of such a dangerous nature that the legislature in the exercise of its police power thought it desirable, if not imperative, to enact some such legislation.

The first year for which official statistics are available as to the number of automobiles operated on the public highways of this state is 1908, when 18,000 were in operation. To-day the total number is over 300,000. If there was. need for some such statute in 1908, there is more than ten times the need of it to-day.

Statisticians have calculated that when you vest average men with large power, you make either a tyrant or fool out of ten per cent, of them. The estimate is very conservative. Indeed, if it err at all, it is upon the ground that it is too low, and it may well be doubted if the ratio is appreciably, reduced in case of putting 300,000 automobiles, with their tremendous speed, power and impact, under the direction and control, or lack thereof, of the usual drivers. Ten per cent, of the 300,000 would make 30,000 that are in the hands of tyrants, fools or incompetents, speed-maniacs, that are a constant menace and danger to the safe and conservative 90 per cent, of 'automobile drivers, to other vehicle drivers, and to the millions of foot passengers.

“Safety first” must not be sacrificed for “speed first.”

The daily press is full of hairbreadth escapes and casualties, from slight injuries on the one hand to instant death on the other. It may well be said, “that the railroad locomotive has killed its hundreds, but the automobile is killing its thousands.”

The day has long been here when, the authorities should exercise every power under every law of the state to protect the safety of the public, its life, its limb; and in order to meet every possible situation of danger, some such general, comprehensive and elastic statute as Section 12603 is absolutely necessary.

The careful, conservative driver need have no fear of it. The reckless, wanton speed-maniac needs to be kept in fear of it. The life of the humblest citizen must be placed above the gratification of the motor-maniac who would turn the public highways into a race course. Mere civil liabilities are not sufficient to protect the public. Five dollars fine and costs is a joke in most cases.

Some statutes have undertaken to fix a rate of speed which would be prima facie dangerous, but a rate of speed dangerous in one situation would be quite safe in another situation, and if the rate of speed were definitely fixed, naturally it would have to be the minimum speed at which cars might be safely driven, because that speed would have to be a safeguard against every possible situation which would be perilous even at a speed of six or eight miles an hour.

There is no place in all the public grounds and parks where a situation is not constantly changing from comparatively ho traffic to a most congested traffic; from no foot travelers to a throng of them; from open and clear intersections, private drives and street crossings, to those that are crowded; from free and unobstructed streets to streets filled with crowds of foot travelers and others getting off and on street cars and other vehicles. In order to meet these varying situations and impose upon the automobilist the duty of anticipating them and guarding against the dangers that arise out of them, this statute was evidently passed in the interests of the public safety in a public highway.

The supreme court of Tennessee has laid down the law in a very well-considered opinion by Neil, C. J., in Lauterbach v. State, 132 Tenn., 603, decided in 1915. The syllabus of that case reads as follows:

“1. Where defendant, while driving an automobile in excess of 20 miles per hour, in violation of Pub. Acts 1905, ch. 173, killed a child who ran out in front of the automobile, he was guilty of felonious homicide, since he was negligent in violating the statute.
“2. One who, while violating the law by speeding an auto, kills another is not relieved by the fact that the other ran in front of the auto, since he is presumed to anticipate the possibility of any result of his recklessness.
“3. One who, while violating a law, kills another is not relieved by the negligence of the other, for the doctrine of contributory. negligence does not apply to criminal acts.”

Chief Justice Neil in the course of the, opinion says, at page 606:

“The plaintiff in error is not relieved by the fact that the child ran suddenly in front of the machine. One who is engaged in the performance of an unlawful act must take the criminal consequences of whatever happens to third persons as a result of that act. It was his duty to anticipate that he might encounter, not only grown persons, but even little children, or even people who were afflicted with blindness or deafness. One who disobeys the statutory rule as to. speed is acting in defiance of law, and must be held to have anticipated the possibility of any injury caused by his recklessness.”

The paramount humanitarian purposes of this statute, and its adaptability to meet every dangerous situation, for the safeguarding of life and limb against the aggression of reckless and wanton automobile drivers, commend it as a valid enactment, and the court of appeals was right in upholding it.

Absolute or mathematical certainty is not required in the framing of a statute. Reasonable certainty of the nature and cause of the offense is all that is required. Some offenses admit of much greater precision and definiteness than others, but it is quite obvious that in the case at bar the statute must be sufficiently elastic and adaptable to meet all the dangerous situations presented, in order to adequately safeguard the traveling public, whether foot passenger, horse or motor vehicle.

Section 12603 is as definite and certain on the subject-matter and the numerous situations arising thereunder as the nature of the case and the safety of the public will reasonably admit.

We come now to the sixth assignment of error, that the court failed to properly charge as to the terms of the statute with reference to “what would be a reasonable and proper operation of an automobile” under this statute.

The court of appeals reviewing the charge of the court in this respect says:

“It is the duty of the court to define the terms used in the statute so that the jury may have a basis for determining when a crime has been committed — not to leave it to the will and whim of each juror to construe the statute and determine what would be a reasonable and proper operation of an automobile under the conditions of the particular case. * * * we think that the jury should be more definitely charged as to what conduct would constitute a crime under the terms of this statute than was done by the trial court in his charge in this case.”

Now, if there was anything about this statute that was uncertain, indefinite; anything technical or unusual in its words or terms; then it would be quite clear that there should be a definition of terms, a construction of doubtful and a definition of difficult language. But what is there about the statute that either requires or permits any construction or definition?

The part of the statute in question is this:

“Whoever operates a motor vehicle * * * at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person,” etc.

It should be remembered in this connection that the statutes of the state of Ohio are made not only for lawyers and courts, but for the five million people who reside in the state. Statutés should be so plain, so simple, that any ordinary man can easily understand their meaning, and when that meaning is thus dear and plain a court has no right to construe the language, because it needs no construction, and any attempt at definition instead of clearing the statute usually clouds it. ■

What word or words of this statute are not as entirely familiar to the average juryman as to a trial judge? Indeed the general assembly ought to be commended for making a statute in the simple speech in which we find Section 12603, General Code.

The trial court refers to the statute and quotes it literally and in substance again and again throughout the charges, so that there could be no possible misunderstanding by the jury of the simple meaning of this statute as applying to any given state of facts.

There was no question but that there was a highway ; no question but that there was a motor vehicle or automobile; no question about the width, traffic, use, general and usual rules of the road and highway; no question as to what the word “endanger” meant, or “property,” “life” or “limb.” What was there for the court to further define or construe?

The presumption is that every man knows the law, and this applies as well to the public as to the jury and the judge, and when it is in such simple terms, such simple language, as the statute here involved, there can be no doubt about its meaning.

Helpful suggestions as to instruction required of a trial judge upon the subject of “reasonable doubt,” as applied to criminal cases, should aid us in determining the validity of this statute as to “reasonable and proper speed.”

In Miles v. United States, 103 U. S., 304, Justice Wood has said (page 312):

“The evidence upon which a jury is justified in returning a verdict of guilty must be sufficient to produce a conviction of guilt, to the exclusion of all reasonable doubt. Attempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.”

This same doctrine is approved by Justice Brewer in Dunbar v. United States, 156 U. S., 185.

In State v. Reed, 62 Me., 129, 142, it was said: “The explanations of the meaning of this phrase [reasonable doubt] have been almost innumerable, and the best jurists have found it difficult to convey to their own satisfaction the idea in their own minds expressed by its use. Not that there is any considerable difficulty in understanding its meaning, but rather in not conveying it. It may indeed admit of grave doubt whether the proposition is in itself so simple and the words so well calculated to express a state of mind so easily felt, though difficult to describe, that in most cases it is sufficient to use the expression alone without any attempt at explanation. All such attempts must result in simply stating the same proposition in a different form of words, and words which are, perhaps, no more easily understood. * * * When told that, in order to convict, the proof must remove every reasonable doubt of guilt from their minds, whatever the form of words used, if any heed is given to the instruction the result must be that each individual juror will understand it and act according to the dictates of his own reason.”

In State v. Davis, 48 Kans., 1, complaint was made that the trial judge had failed to explain the meaning of the words “reasonable doubt.” Held, “that such failure to define or explain the meaning of such words is not error.”

In the opinion it is said:

“It is presumed that the jury understood what the words 'reasonable doubt’ meant. The idea intended to be expressed by these words can scarcely be expressed so truly and so clearly by any other words in the English language; and, generally, the attempted definitions of them by courts or others are simply misleading and confusing, and not proper explanations of their meaning at all. There are definitions or paraphrases of these words, however, which have been held to be good by the courts, but even they are scarcely as good as the words themselves. We do not think that the court below committed any material error in refusing to define these words.”

Numerous cases can be found in Ohio where criminal cases have been reversed because the trial judge gave an improper definition of the words “reasonable doubt,” but none has been found where a case has been reversed because the court failed to define “reasonable doubt.”

But had such a charge been fairly required by the evidence in the case, there was still no error, because there was no request so to charge. Counsel cannot sit by and note that the court has inadvertently omitted something in the charge that ought to be given, and not advise the court of such omission, and then thereafter predicate error on such omission. Hence the rule of law is well established that before such omission can be used as the basis of a proceeding in error, the court’s attention should be challenged thereto.

Counsel for the defendant, however, evidently regarded the matter as unimportant, for their general vigilance in the trial of the case is quite apparent when it is remembered that they offered 17 written requests to charge and noted 17 exceptions to the charge, though in neither request nor exception did they raise this question upon which the court of appeals reversed the case. And the rights of the accused were in no wise jeopardized by his failure, through his counsel, to make such request, for the reason that the evidence overwhelmingly, and beyond the peradventure of a doubt, supported the charge of the state on these several matters, and, therefore, a special charge in that behalf was wholly immaterial and unimportant so far as the rights of the defendant were concerned. We are not hereby relieving the trial judge of his plain duty to charge in a criminal cause upon all the essential issues raised either by the indictment or by the evidence; but no judge is infallible and may inadvertently omit to charge on some matter most vital to the substantial rights of the accused. It then becomes the duty of the defendant, or his counsel, to challenge the court’s attention to such omission. Jones v. The State, 20 Ohio, 34, and Doll v. The State, 45 Ohio St., 445, 452.

There was no error in the charge of the court in this respect, though the language used by the trial judge was not always well chosen.

In determining whether or not the defendant was driving his car at a speed greater than reasonable or proper, as required by the statute, the court should have told the jury that the defendant’s conduct in that respect was to be judged according to the conduct of an ordinarily prudent person in such a situation. No request, however, was made in respect to this, and doubtless the court inadvertently omitted it. In this particular case such omission was not prejudicial error.

The seventh and last error complained of relates to the matter of proximate cause, and grows out of this part of the charge:

“If you shall find from the evidence, beyond a reasonable doubt, that this defendant, E. E. Schaeffer, was at that time violating the provisions of that act and struck this child with his automobile, and also find beyond a reasonable doubt that the child died from the effects of such injury, then jour verdict should be guiltj as charged in the indictment.”

The trial court here, in effect, charged the correct legal proposition as to proximate cause, without, however, putting on the label.

But it is not always necessary to use the term “proximate” or “proximate cause” in order to correctly charge thereon. No question was raised in dispute of the fact that the automobile killed the child, and it further appearing that this was the undoubted result of the unreasonable and improper speed at which the automobile was then being operated, there was no prejudicial error resulting to the defendant,

True, the language of the statute does not clearly indicate that death must be the proximate result of the unlawful act, since the word “in” seems to indicate “at the time thereof” rather than “thereby.” Yet the safer and sounder doctrine seems to be recognized in most of the states that the unlawful act must be a proximate cause of the killing.

So obvious and so manifest did this appear throughout the case that the defendant in error’s counsel did not even suggest any further charge by the court upon the question of proximate cause.

Upon a careful examination of the entire record of this case, and all the evidence before the court and jury, we are convinced to a moral certainty that the defendant was rightly convicted by the jury, and that any technical error of the court, or any error in the charge with reference to proximate cause, was, in this case, in no wise prejudicial. Substantial justice has been done.

The witnesses for the state furnished overwhelming testimony of the truth of the charge of the indictment. No one denied it but the defendant himself. His testimony that he was going but eight miles an hour at the time he struck this child, and that he never saw the child, and didn’t know he had struck it, and his subsequent conduct upon his return home, abundantly warranted the jury in returning the verdict they did. To have done anything else would have been the grossest miscarriage of justice.

This three-year-old boy, the testimony all shows, was crossing the street at a regular street crossing, was at the time occupied in playing with a large number of other children who were there upon the street, which the defendant says was customary; and he admits that he saw a large number of them on the street at the time he was making the fatal trip. His conduct in the operation of this car, not only as to speed, but in being on the left side instead of the right side of the street, was wholly inexcusable and shows a reckless and wanton disregard of all thought for the safety and lives of these children .and the public generally.

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

Judgment reversed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Schier v. The State of Ohio.

      Manslaughter — Killing by automobile—Words "motor vehicle” — And “public road or highway” — Charge to jury—Unlawful act—Proximate cause of death.

    (No. 15441
    Decided April 17, 1917.)
    Error to the Court of Appeals of Wood county.

      Mr. Benjamin F. James, for plaintiff in error.

      Mr. Earl K. Solether, prosecuting attorney, and Mr. N. R. Harrington, for defendant in error.
   By the Court.

The plaintiff in error, William Schier, was tried and convicted on the charge of manslaughter in the common pleas court of Wood county, Ohio. That judgment was affirmed by the court of appeals. Error is prosecuted here to reverse that judgment. '

Most of the errors claimed in the court below, particularly the unconstitutionality of Section 12603, General Code, are fully considered and determined in The State of Ohio v. Schaeffer, ante, 215.

As to the remaining questions raised by plaintiff in error, we hold:

1. That the words “motor vehicle” are sufficiently broad and comprehensive to include automobiles.

2. That under the statutes involved in this case the words “public road or highway” are synonymous with, or at least include, a public street.

3. That as to the matters complained of by-plaintiff in error, the charge of the court was unusually fair and considerate of all the rights of plaintiff in error, and he has no right or cause to complain.

4. That the charge of manslaughter was based upon the commission of an act made unlawful by three several statutes, as to any one of which the jury, upon the whole record, were abundantly warranted in finding the defendant guilty; but under a long line of decisions of this court proof of guilt beyond a reasonable doubt as to the unlawful act under any one statute, which unlawful act was the proximate cause of the death of the person named in the indictment, would be legally sufficient to sustain the conviction.

5. That the defendant has had a fair trial and the record discloses his guilt overwhelmingly.

There being no error, the judgment should be, and hereby is, affirmed.

Judgment affirmed.

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


text:
    The State, ex rel. Bryant, v. Donahey, Auditor of State.

      Pay of colonel—Ohio National Guard — Assistant adjutant general— State military officers — Entitled to federal pay rate, when — Sections 3190-, 3292, 3293 and 5296, General Code.

    (No. 15466
    Decided April 17, 1917.)
    In Mandamus.

      Messrs. Turney, Olds & Sipe and Mr. Hubert A. Turney, judge advocate general of Ohio, for relator.

      Mr. Edward C. Turner, attorney general; Mr. Henry S. Ballard and Mr. Charles Follett, for respondent.
   By the Court.

This proceeding in mandamus is instituted by Edward S. Bryant, the relator, to secure a writ of mandamus requiring the respondent, as auditor of state, to issue a voucher for the payment of the sum of $1400, claimed to be due him as the balance of salary as colonel of the Ohio National Guard upon active duty from June 18 to November 15, 1916.

Upon the hearing it was disclosed that on June 18, 1916, the President of the United States, proceeding under authority of an act passed and approved May 27, 1908, called into service of the United States the National Guard organizations of various states, including Ohio. The Secretary of War on that day sent telegraphic orders to the Governor of Ohio, calling into the service of the United States designated units of the National Guard of this' state; a portion of which order is as follows: “Having in view the possibility of further aggression upon the territory of the United States from Mexico, and the necessity for .the proper protection of that frontier, the President has thought proper to exercise the authority vested in him by the constitution and laws and call out the organized militia and the National Guard necessary for that purpose.”

In accordance with the command of the President the Governor of the state directed the mobilization of the designated units of the National Guard, which was thereafter effected, and after some weeks in mobilization camps they were ordered to the Mexican border for the required service.

On June 18, 1916, by order of the Governor of the state, certain named staff officers of the National Guard were placed on duty and directed to immediately report to the Adjutant General of Ohio for assignment, Colonel Edward S. Bryant, the relator, being one of that number.

The relator was appointed Assistant Adjutant General of the state on January 11, 1915, and had continued in such office until the date of filing the petition in this case, which was December 13, 1916; the amount for which he asks a voucher is the difference between the stipulated salary as Assistant Adjutant General and the compensation to which an officer of his rank and ;grade is entitled when upon active duty under the provisions of the statute. The relator also claimed that such sum was due by reason of the provision of Section 5190, as amended May 27, 1915, 106 Ohio Laws, 471. But as that amendment was passed during the incumbency of the relator as Assistant Adjutant General he is precluded by the provisions of Section 20, Article II of the Constitution, from deriving the benefit of the increase of salary thereby provided. However the authority of the Governor of the state to assign an officer of the National Guard to active duty is unquestioned, and under the provisions of Section 5296, General Code, such officer is entitled to the pay of an officer of his rank and grade in the army of the United States. At the time such order was issued the relator was a member of the general staff with the rank of colonel. So long as that order was in force and the relator remained upon duty in obedience thereto he would be entitled to pay as provided by Sections 5292, 5293 and 5296, General Code.

It appearing that the claim made is merely for the difference between the amount the relator received as Assistant Adjutant General and the amount which an officer of his rank and grade is entitled to receive when in actual service, a voucher therefor should be issued.

Writ to issue.

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


author: Nichols, C. J.

text:
    The State, ex rel. Turner, Attorney General, v. The United States Fidelity & Guaranty Company of Baltimore, Maryland.

      Workmen’s compensation act—Self-insurance—Application of benefits—Validity of Section 22 (103 O. L., 72)—Section 1465-69, General Code — State liability board of awards — Constitutional law.

    Section 22 of the workmen’s compensation act (103 Ohio Laws, 80), now Section 1465-69, General Code, authorizing “employers who will abide by the rules of the state liability board of awards and as may be of sufficient financial ability or credit to render certain the payment of. compensation to injured or killed employes or their dependents, to pay individually the compensation provided in the act directly to injured employes or the dependents of killed employes,” is a valid legislative enactment and is not in conflict with any of the provisions of the state or federal constitutions.
    (No. 15083
    Decided April 17, 1917.)
    In Quo Warranto.
    Facts are stated in the opinion.

      Mr. Edward C. Turner, attorney general; Mr. Geo. B. Okey; Mr. Timothy S. Hogan and Mr. Hanby R. Jones, for relator.

      Messrs. Booth, Keating, Peters & Pomerene, for defendant.
   Nichols, C. J.

This is one of a series of proceedings in quo warranto instituted by the attorney general in his official capacity for the purpose of ousting certain indemnity insurance companies from exercising the franchise of writing within the state of Ohio insurance to indemnify employers against loss or damage for personal injury or death resulting from accident to employes.

In its answer the defendant admits that it is entering into contracts with employers in Ohio, who elect and are duly authorized by law to pay the compensation and furnish the medical, surgical, nursing and hospital attention, services, medicines and funeral expenses directly to injured employes, or to the dependents of such employes as may be killed. Denial is made of the charge that the policies issued by the defendant cover any liability on account of any injury to employes by the wilful act of any employer or the failure of such employer to observe any lawful requirements for the safety of his employes.

The attorney general demurs to the answer. Several grounds are set forth, only one of which, however, the second, is necessary to be considered to determine the rights of the parties to this action.

In this particular case the issue is a .narrow one, confined indeed to one question, namely, the constitutionality of Section 22 of the workmen’s compensation act (103 O. L., 72); for, by the second specification of the demurrer of the attorney general, the constitutionality of Section 22 (Section 1465-69, General Code) is directly challenged, and likewise the right of any employers to pay compensation directly to their employes, or to be indemnified therefor by contract with insurance companies.

The section in question, briefly stated, authorizes employers who will abide by the rules of the state liability board of awards and as may be of sufficient financial ability or credit to render certain the payment of compensation to injured or killed employes or their dependents, to pay individually the compensation provided in the act directly to injured employes or the dependents of killed employes.

The charge is made that Section 22 is unconstitutional, null and void, because:

First. It contravenes. the provision of Section 35 of Article II of the Constitution of Ohio, the section authorizing the passage by the general assembly of a compulsory workmen’s compensation act.

Second. It is violative of Section 2 of Article I of the Constitution of Ohio, wherein it is stated that “Political power is inherent in the people. Government is instituted for their equal protection and benefit.”

Third. Because it is irreconcilably inconsistent with Section 26, Article II of the Constitution of Ohio, providing that all laws of a general nature shall have uniform operation throughout the state.

Fourth. Because of its repugnancy to the Fourteenth Amendment to the Federal Constitution, especially that part wherein the amendment forbids any state of the Union denying to any person equal protection of the laws.

The first of this series of objections is supported by argument to the effect that the constitutional amendment granting power to the general assembly to enact a compulsory compensation act provided the exclusive method by which compensation should be gathered and dispensed.

It is claimed that Section 22 denies to a pari of the workmen of the state permission to participate in the fund, and excuses a portion of the employers of the state from compulsory contribution to the fund, while all others are compelled to contribute.

The doctrine of “Expressio itnius est exclusio alterms” is invoked by the state.

This court is not now concerned with the operative effect of the act, nor with the administrative methods; but, taking Section 22 as it was framed and enacted into law by the general assembly, we are unable to see wherein it offends against the constitution.

By the terms of this section the industrial commission retains and must exercise the most complete supervision over the award and payment of compensation by those who by permission of the commission are permitted to pay directly to injured or the dependents of killed employes. The employe is favored with the most complete guarantee that he will receive the same benefits he would have received had his employer contributed to the state insurance fund. The underlying purpose of the compensation act is in no manner thwarted.

Before this independent method of dispensing compensation is permitted, the industrial commission must determine that the noncontributing employer is of sufficient financial ability to render certain the payment of compensation to injured and killed employes or their dependents. This is the crux of the matter. It ought not escape attention that the constitutional provision is permissive and not mandatory, and it is to be gathered from a perusal of it that the details of the law and the method of its administration were largely left to the good sense of the general assembly. The law could have been framed, no doubt, so that all employers would have been compelled to participate in the one fund to be administered wholly by the state board, but the law’s departure from that exclusive method is not of such palpable nature as to suggest to this court that it should destroy such portion of the law.

The second and fourth constitutional objections to Section 22 may be considered as one, since they are of like import, it being urged that the section violates the equal-protection clause of our Bill of Rights and that part of the Fourteenth Amendment to the Federal Constitution forbidding the denial by any of the states of equal protection of. the laws.

The third objection will be considered with the second and fourth, for essentially, and so far as this act is concerned, Section 26 of Article II, to the effect that all laws of a general nature shall have uniform operation throughout the state, is only expressing in another form the doctrine of equal protection before the law.

Counsel for the relator, while granting without question the right of the general assembly to distinguish, select and classify objects of legislation, at the same time assert that the classification made by Section 22 is unnatural, arbitrary and unreasonable.

The classification effectuated by this section is one of employers rather than of employes, although it must be admitted that employes, without having any voice in the matter, are by virtue of the election of their employers necessarily also classified.

It is not always an easy matter, by the mere examination of a statute, where classification of any sort is attempted, to determine whether the classification is arbitrary, unreasonable and unnatural. Probably one of the most sensible tests is to determine whether any substantial favor is gained by the one class or any greater burden is fastened on the other by reason of the classification.

Measured by this test, it is felt that the assaults on this section must fail. Neither employer, employe, nor the state, suffers any additional burden, nor are they subjected to any substantial discrimination.

It is possible that all of the employers of the state might have elected to pay the compensation direct to the injured employe. Had this been the case, there would still be a large field for the board of awards to occupy, for it would still be the law-chosen intermediary between the employer and employe, to see that justice is done in every case. And, again, it were possible that no employer would avail himself of the system of paying direct.

However, the choice of the two methods is open to all. The law creates no favored class; it only conditions the choice by the necessities of the case, in order that the compensation may be certain.

Whether the contributing employer is compelled to pay a greater premium to the state fund, by reason of the election of others to pay direct, is, and possibly for some time to come, will be, an undeterminable question. The court cannot presume that such exemption would so operate. Theoretically it should not increase the premium, since the paymaster in either event must pay the same compensation.

This conclusion is fortified by consideration of the fact that the state itself by direct appropriation from the general revenue funds of the state pays all charges and expenses incident to the discharge of this great trust.

There is no claim made, nor could one be made in reason, that accidents to employes are more likely to be anticipated in the one case than in the other.

The state itself suffers no additional burden by reason of any number of employers electing to pay the compensation direct. In fact, the labors of the commission and the expense incident thereto are lessened to the extent that compensation is paid directly to the employe. The employe cannot suffer either through delay or diminution of award.

In view of above facts we are unable to observe in the terms of Section 22 any denial of the constitutional guarantee of equal protection before the laws.

If the law is faithfully administered, and we are bound to assume that it is and will be, there is absolutely no discrimination between the employes of contributing and noncontributing employers, nor can there be.

The state board of awards that administers the fund contributed by the employers exercises the closest scrutiny and control over those employers who pay direct. So far as we can see, the only difference is in the person of the paymaster—in the one case, the state, and, in the other, the employer. The law expressly provides that the compensation when paid direct shall in no event be less than that paid out of the state insurance fund. As heretofore stated, the board of awards must be satisfied of the financial ability of the noncontributing employer, and is further authorized to require such security or bond from such employers as it may deem proper, adequate and sufficient to secure to injured employes the payment of compensation. In other words, the state board of awards is clothed with full authority to make certain the payment of compensation, just as certain in fact as if the state fund itself was to be drawn upon.

If, then, the compensation in the one case is to be as great as in the other, and if the prompt payment is as certain in the one case as in the other, the claim of inequality before the law is dissipated to the very vanishing point.

The matter of the wisdom or unwisdom of permitting indemnity insurance contracts to survive in Ohio has no possible connection with this question.

In the discussion of this phase of this series of lawsuits, the insurance issue, acute as it is, should therefore be entirely disregarded. Section 22 neither authorizes nor denies the right of employers to enter into indemnity contracts to protect them from loss or damage from injury to employes, and we cannot see how any injured employe, or the dependent of any killed employe, is compelled to rely upon an insurance indemnity company to secure their compensation, or to have any relation whatever with such companies. If an injured employe elects to avail himself of the provisions of the workmen’s compensation act, the law protects just as amply the employe of a noncontributing employer as the employe of one who has contributed to the fund. The court is of opinion that Section 22 violates neither of the “equality before the law” sections of the constitution.

In this connection it is proper to observe that under the present constitution the supreme court of Ohio has been clearly and distinctly directed by the people of Ohio that the power to set aside laws passed by the general assembly, over which the people exercise the veto power through the referendum, is to be exercised with the greatest care. Not only does the long-established rule laid down in Cass v. Dillon, 2 Ohio St., 607, still obtain in all its restrictive effect, but the privilege of exercising the vast responsibility of this power has been hedged about with the most positive and drastic limitations. In Section 2, Article IV of the Constitution, the very section which gives the court its existence, it is provided that “No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges.” Much significance is to be attached to the inclusion of this provision in the judicial article. It represents, as is known of all men, a compromise between those of our people who sought to deny to the court the right to exercise the power at all and those who felt that the supreme court should be unhampered by any such restriction. Of all the states of the Union the constitution of ours alone has thus expressly granted this great power to its highest court, and we are reminded that it should be exercised with the greatest possible care and reserve.

The power was exercised almost from its beginning by the supreme court of Ohio, but always, until 1913, by and through a claim of an implied grant of power. A vast amount of discussion, with a display of much learning, has been had in recent years with regard to the exercise of this implied power, both as to the state and federal courts. As to the merits of this controversy, we are not called on to, and do not, express opinion; for happily in Ohio our power in this respect, with its pronounced limitation, is one of express grant.

It is proper to add, in conclusion, that while the attorney general, as a party, filed the demurrer to the answer of the defendant, wherein the alleged unconstitutional features of Section 22 were plead, he did so at the earnest request of his associated counsel, who are the attorneys in this case of The Ohio State Federation of Labor, but he, himself, both by brief and oral argument, most vigorously defends Section 22 as being a constitutional enactment.

The second ground of the demurrer is overruled.

Demurrer overruled and petition dismissed.

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


author: Donahue, J.

text:
    Verducci v. Casualty Company of America.

      Indemnity insurance — Powers of insurance compames — Rights of employes of indemnified companies — Construction of Section 9510, General Code — Employes subrogated to rights of employer, when — Provisions of Section 9510-1, General Code — May not be defeated- by contract, when.

    1. The business of insurance is one of public interest, affecting all classes of people and property, and is therefore properly the subject of legislative regulation and control.
    2. Domestic and foreign corporations engaged in the insurance business in Ohio must conform their business and contracts to the provisions of the statutes of Ohio regulating and controlling the same.
    3. Section 9510, General Code, must be construed in connection with Section 9510-1, General Code, in determining the terms and provisions that may be written into a contract of insurance to indemnify employers against loss or damages for personal injury sustained by an employe in the course' of his employment, through negligence of the employer, or negligence for which the employer is liable.
    4. No contract of insurance can be written under the authority granted in Section 9510, General Code, that will defeat the provisions of Section 9510-1, General Code, subrogating the injured employe who has recovered judgment against his employer for injuries sustained in the course of his employment through the negligence of his employer, or negligence for which the employer is liable, to all the rights of the employer under such contract.
    5. A provision in such a contract of insurance that no action can be brought thereon except by the employer, or that no action can be brought thereon until a judgment obtained by the employe against his employer has been fully paid and satisfied, is in conflict with the provisions of Section 9510-1, General Code, and void.
    (No. 15392
    Decided May 15, 1917.)
    Error to the Court of Appeals of Cuyahoga county.

      On the 13th day of October, 1914, Antonio Verducci filed a petition in the common pleas court of Cuyahoga county, praying judgment against the Casualty Company of America, to recover upon a contract of indemnity issued by that company to H. H. Ensminger and G. R. Ensminger, partners, doing business under the firm name and style of Ensminger Brothers, whereby the Casualty Company of America agreed to insure and did insure Ensminger Brothers against loss and expense resulting from claim upon them, or either of them, for damages on account of personal injuries to any of their employes in the course of their employment, suffered through an accident occurring during the term of said policy, through the negligence of said' Ensminger Brothers or negligence for which they were liable.
    The petition avers that during the time said contract of indemnity was in force, the plaintiff, while in the employ of Ensminger Brothers, sustained serious bodily injuries through the direct and proximate negligence of his employers; that on the 22d day of May, 1912, he instituted a suit in the common pleas court of Franklin county, Ohio, against said Ensminger Brothers; that thereupon the Casualty Company of America, under the terms of its contract of indemnity, assumed by its counsel the sole and entire defense of the suit; that plaintiff recovered in the suit against Ensminger Brothers a verdict and judgment in the sum of $10,000 and costs, from which judgment no appeal was taken; that no part of this judgment has ever been paid; that Ensminger Brothers are insolvent; and that the amount of this judgment and no part thereof can be realized upon execution issued against them. The prayer of the petition is that he may be subrogated to all the rights of Ensminger Brothers under this contract of indemnity against the Casualty Company of America.
    The Casualty Company of America for answer to plaintiff’s petition admits that the plaintiff was on the 23d day of August, 1911, in the employ of Ensminger Brothers, and that on said day he received serious bodily injuries, for which he recovered a judgment against the Ensminger Brothers in the sum of $10,000 and costs of suit, from which judgment no appeal was taken. It admits that no part of said judgment has ever been paid, that Ensminger Brothers are insolvent, and that the judgment is still unsatisfied.
    The defendant further admits that prior to August 23, 1911, it executed, issued and delivered for a valuable consideration, its employer’s liability policy to Ensminger Brothers, whereby it agreed to insure and did insure them against loss and expense resulting from claim made upon them for damages on account of bodily injuries suffered by any of their employes through accident occurring during the Term named in the policy, and denies each and every other allegation in the petition.
    For its defense it avers that the policy executed and delivered to Ensminger Brothers provided among other things that defendant’s liability for an accident resulting in injuries to one employe was limited to $5,000; that said policy further provided as follows:

      “No action shall lie against the company to recover for any loss as described in this policy, unless brought within two years from the date of the entry of a final judgment against the assured after a trial of the issues on the merits in a suit duly instituted within the period limited by the statute of limitations awarding damages on account of a casualty covered hereby; and then only provided that such action against the company be brought by the assured personally for damages sustained by the assured in paying and satisfying such final judgment.”
    The defendant further avers that this policy is a policy of indemnity enforceable only by Ensminger Brothers — after the payment and satisfaction of final judgment — and that the amount recoverable under this policy is only that amount which has been expended by Ensminger Brothers in paying and satisfying the final judgment against them.
    The common pleas court entered judgment for the defendant, which judgment was affirmed by the court of appeals. This proceeding in error is prosecuted in this court to reverse the judgment of the common pleas court and that of the court of appeals affirming the same.

      Messrs. Payer, Winch & Rogers, for plaintiff in error.

      Messrs. Ford, Snyder & Tilden, for defendant in error.
   Donahue, J.

If Section 9510-1, General Code, is to be given any force or effect whatever, then thé question of equitable subrogation is of no importance in the disposition of this case. That section provides that an employe who recovers against his employer for injuries sustained while in his employ, and because of negligence of the employer, or negligence for which he or it is liable, shall be subrogated to all the rights of the employer under any contract or policy of insurance against loss or damage resulting to the employer for injury or death of an employe while in the service of such employer whether the person, copartnership or corporation contracting or issuing such policy of insurance has been made a party to the action for damages sustained or not.

If this section confers no right of subrogation upon the injured workman until the judgment he has secured against his employer has been paid and discharged, then it is a monumental folly, that can serve no purpose in any case; for, when the judgment is paid, the injured workman has no further interest in the litigation, and no need of subrogation to the rights of his employer.

It is contended by counsel for the defendant in error that Section 9510-1, General Code, is in conflict with the provisions of Section 1, Article XIV, of the Federal Constitution.

In answer to this contention it is sufficient to say that under the decisions of this court the right of the state to regulate and control the business of insurance and contracts of insurance is no longer an open question in Ohio. The National Fire In surance Co. v. Dennison, 93 Ohio St., 404; Robbins v. Hennessey et al., 86 Ohio St., 181, and State, ex rel., v. Ackerman, 51 Ohio St., 163.

The same question, while not directly presented to the court, was necessarily involved in the case of State, ex rel. Turner, Atty. Gen., v. Employers’ Liability Assurance Corporation, Ltd., 95 Ohio St., 289.

The authority of the defendant in error to issue a contract of indemnity is based upon the provisions of Section 9510, General Code. Section 9510-1, General Code, specifically applies to the contract of insurance authorized by Section 9510, General Code, “to indemnify employers against loss or damage for personal injury, or death resulting from accidents to employes.” The state, having the authority to grant or withhold the right to make indemnity contracts, may impose terms and conditions upon which the right so granted may be exercised. Whoever seeks to avail himself of the benefits conferred by statute must observe the conditions imposed.

Section 9510-1, General Code, becomes a part of every contract of indemnity as fully as if written therein. Its provisions must control, regardless of the terms and conditions written into the policy by the contracting parties.

Sections 9510 and 9510-1, General Code, relate to the same subject-matter and must be construed together. If by the provisions of Section 9510, General Code, authority is granted to write contracts of indemnity without limitations or restrictions as to terms, Section 9510-1 limits that authority to the writing of contracts of indemnity which contain terms consistent with its provisions. State, ex rel. Turner, Atty. Gen., v. Employers’ Liability Assurance Corporation, Ltd., supra.

In view of the fact that Section 9510-1 subrogates the injured workman to all the rights of the employer under any contract or policy of insurance of this character, the contracting parties cannot provide in the contract that no suit can be brought upon the policy except by the employer himself. It is equally clear that the further provision in the contract, that action cannot be brought thereon by the employer until after the judgment is satisfied and paid in full, is also void, for such a provision would likewise defeat the right of the employe to subrogation, and deprive him of all the benefits intended to be conferred by this statute.

This contract of indemnity provides in terms that when suit is brought by an injured workman against the employer, the employer shall cause every summons, process and other paper relating to such suit to be delivered to the insurance company as soon as served on the employer; that thereafter the company will, at its own cost, defend the suit in the name of and on behalf of the employer; and that the employer shall not interfere in any legal proceedings relative to or growing out of any casualty covered in whole or in part by the policy of insurance, nor with the negotiations for the settlement of any claim arising from such casualty, nor shall such employer settle any such claim or incur any expense in connection with such casualty save such as may be necessary in providing at the time of the accident imperatively needful surgical relief.

If under the provisions of Section 9510, General Code, a contract of indemnity may contain a binding agreement that a stranger to the litigation may for a price assume the entire burden of the defense, including costs, and deprive the real party in interest of the right to settle the litigation at terms satisfactory to himself, certainly the other party to the suit should be compensated in some way for the increased burdens of litigation that such a contract necessarily imposes upon him.

Section 9510-1, General Code, recognizes the justice of this situation by subrogating the injured employe to the rights of his employer under the contract of indemnity, whenever' he has reduced his claim for damages to judgment.

Under this contract the insurance company had its day in court, with full opportunity to defend against the claim for which it is ultimately liable. It prevented the possible settlement and adjustment between the real parties to the controversy; it controlled the litigation and compelled the. injured workman to establish by proof the justice of his claim and the amount of damages he had suffered by reason of the injuries received in the course of his employment, through the fault or negligence of his employer. It is but -fair that the contract should then inure to his benefit for the satisfaction of the judgment he has obtained, notwithstanding the intervention and activities of the insurance company in the defense of the suit.

It is wholly unimportant, however, what considerations moved the general assembly in the enactment of Section 9510-1, if the purpose and intent of the legislative authority is clearly expressed in plain and unambiguous language. Slingluff et al. v. Weaver et al., 66 Ohio St., 621.

It is clear that this section is directed to the contract of indemnity authorized by Section 9510, General Code. It is equally clear that this section contemplates that such contracts shall vest rights after judgment against the employer, to which the employe may be subrogated. The intent and purpose of this statute cannot be defeated by any provision in the contract itself in conflict with or in defiance of the provisions of Section 9510-1, General Code, that would make subrogation impossible or wholly useless.

It is insisted, however, that a contract that would vest a right of action in the employer, upon the rendition of a judgment against him in favor of an injured employe, would not be a contract of indemnity, for the reason that the employer is not damaged in any respect until he is compelled to pay the judgment, and therefore could not have indemnity where he has suffered no actual loss. The language of the statute, however, is “against” loss or damage, and not “for” loss or damage.

If it were the intention of the general assembly of Ohio to authorize by Section 9510, General Code, the making of a contract solely to reimburse for loss and damages actually sustained, then the word “for” would have been used instead of the word “against;” for the word “against,” in the connection in which it is used, means to protect and save harmless from any loss or damage whatever.

If an indemnity contract is one that provides solely for the reimbursement of a loss actually suffered, and not to protect against the suffering of any loss, then the word “indemnify” as used in the statute must have been unadvisedly or inadvertently used, for the statute authorizes a contract .that will protect against loss.

It is also clear from the provisions of Section 9510-1 that the legislature understood that it had authorized by Section 9510 the making of a contract of insurance against loss or damages, and not merely a contract to reimburse for loss and damages actually sustained; otherwise this section would not have purported to subrogate the injured employe to a right that would not exist until too late to be of value to him.

It is wholly unimportant for the purposes of this case whether a contract by an insurance company to protect an employer from suffering loss or damage is a contract of indemnity or not. Section 9510, General Code, authorizes such a contract. Section 9510-1, General Code, contemplates that under the provisions of the former section only .such contracts may be written, and therefore, upon rendition of final judgment against the employer, subrogates the injured workman to the rights of the employer under the contract authorized.

It is not within the power of the contracting parties to make any other or different contract that would defeat this right of subrogation.

The judgment of the common pleas court, and the judgment of the court of appeals affirming the same, are hereby reversed, and judgment is entered for plaintiff upon the agreed statement of facts filed in the common pleas court of Cuyahoga county.

Judgment reversed.

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


author: Matthias, J.

text:
    The City of Cincinnati, etc., v. The Public Utilities Commission of Ohio.

      Public utilities commission — Powers restricted to statute — Commission may not summarily fix gas rate, when-—-Municipal contract — Suspension of new ordinance — By filing referendum petition — Requirements of Section 614-16 et seq., General Code.

    1. The powers of the public utilities commission are conferred by-statute and it possesses no authority other than that thus vested in it.
    2. The public utilities commission is not authorized by statute to summarily fix a rate to he charged consumers of natural gas subsequent to the expiration of a contract between the public utility and the municipality served during the period within which the- operation of a new ordinance prescribing such rate is suspended by reason of the filing of a referendum petition.
    3. In the absence of an effective ordinance prescribing rates for service by a public utility, such rates should be established in accordance with the provisions of Section 614-16 et seq., General Code.
    (No. 15465
    Decided May 15, 1917.)
    Error to the Public Utilities Commission.

      The city solicitor of the city of Cincinnati on November 16, 1916, filed with the public utilities commission of the state an application in which it was recited that on October 3, 1916, the council of said city had passed an ordinance fixing the rate of charge for natural gas in the city of Cincinnati for a period of five years from and after November 4, 1916, which ordinance was duly approved by the mayor of said city; that The Union Gas & Electric Company which was then and theretofore furnishing gas to consumers within said city duly accepted said ordinance and agreed to abide and be bound by the terms thereof; and that on October 30, 1916, a referendum petition was filed requiring a submission of said ordinance to a vote of the people.
    By said application the public utilities commission was asked to strike from its files and records a schedule filed with it by said gas company on November 6, 1916, setting forth the rates it proposed to charge the various classes of consumers of natural gas in said city, which schedule according to its terms cancelled and superseded schedules previously filed with the public utilities commission. Such application also prayed that the public utilities commission fix and put in force an emergency rate of charge for natural gas in the city of Cincinnati during the period of suspension of operation of the ordinance passed October 3, 1916, brought about by the filing of such referendum petition.
    Upon consideration of such motion and application the public utilities commission found that it had no authority to fix and put in force an emergency rate as requested in said application, entered its finding adverse thereto, and ordered that the same be dismissed.
    Thereafter a petition for rehearing of such motion and application was filed, and the same having been denied a petition in error was filed in this court seeking a reversal of the finding and order of the public utilities commission.

      Mr. Charles A. Groom, city solicitor, for plaintiff in error.

      Mr. Edward C. Turner and Mr. Joseph McGhee, attorneys general; Mr. Freeman T. Eagleson; Mr. Lawrence Maxwell and Mr. Miller Outcalt, for defendant in error.
   Matthias, J.

The record discloses that from December 26, 1905, to and including October 26, 1916, natural gas was furnished to the city of Cincinnati and to private consumers therein by The Union Gas & Electric Company and Thé Cincinnati Gas & Electric Company at a net rate of 30 cents per thousand cubic feet, in accordance with the provisions of ordinances prescribing such rate, in operation and effect throughout that period.

Under the provisions of Section 614-44, General Code, the municipality was authorized at any time within one year prior to the expiration of its contract with the gas companies, which was October 26, 1916, to proceed under the provisions of Sections 3982 and 3983, General Code, and fix by ordinance the rate to be charged for natural gas in said city during the ensuing period, not exceeding 10 years, which upon its acceptance by the public utility would become operative unless within 60 days there was filed with the public utilities commission a complaint signed by not less than three per cent, of the qualified electors of the municipality, or unless within 30 days a referendum petition was filed as provided by Section 4227-2, Genr eral Code. Action was not taken by the council of the city until October 3, 1916, when an ordinance was passed fixing the price to be charged the city and private consumers therein at a net rate of 35 cents per one thousand cubic feet for a period of five years from November 4, 1916. 'This ordinance was duly approved by the mayor and accepted by the gas companies. No complaint of the rates thereby fixed was filed with the public utilities commission, but within the prescribed period of 30 days a petition bearing the signatures of the necessary 10 per cent, of the electors of said city, demanding a referendum on such ordinance and requiring its submission to the electors of the city at the August 1917 election for their approval or rejection, was duly filed. The filing of that petition effected a suspension of the operation of the ordinance, pending action thereon by the electors.. The result is that since November 4, 1916, no rate for natural gas prescribed by contract or ordinance has been in effect in the city of. Cincinnati. It is contended that the situation thus presented constitutes an emergency requiring the action of the public utilities commission under the provisions of Section 614-32, General Code, which is as follows:

“The commission shall have power, when deemed by it necessary to prevent injury to the business or interests of the public or any public utility of this state in case of any emergency to be judged by the commission, to temporarily alter, amend, or with the consent of the public utility concerned suspend any existing rates, schedules or orders relating to or affecting any public utility or part of any public utility in this state. Such rates so made by the commission shall apply to one or more of the public utilities in this state, or to any portion thereof as may be directed by the commission, and shall take effect at such time and remain in force for such length of time as may be prescribed by the commission.”

The powers of the public utilities commission are conferred by statute and it possesses no authority other than that thus vested in it. The provisions of the section above quoted authorize the commission, in case of any emergency to be judged by the commission, to temporarily alter or amend, or with the consent of the public utility concerned, suspend any existing rates. As we have seen, no rates prescribed by ordinance or fixed by contract were in effect subsequent to November 4, 1916. There were no existing rates to alter, amend or suspend. If there had been, then, under the provisions of Section 614-32, General Code, it would have been within the province of the public utilities commission to determine whether any emergency existed calling for the exercise of the power conferred. We are of the opinion that the commission was right in its conclusion that the condition arising from the suspension of the operation of the ordinance in question by the filing of a referendum petition does not constitute an emergency within the meaning of the law. State, ex rel. Menning, v. Zangerle, 95 Ohio St., 1.

The application of the city solicitor is in fact for an order establishing a rate. The only questions presented in this case, therefore, are whether the public utilities commission is authorized by statute to summarily fix a rate to be charged consumers of natural gas subsequent to the expiration of a contract between the public utility and municipality and during the period within which the operation of a new ordinance prescribing such rates is suspended by reason of the filing of a referendum petition, and whether its order overruling and dismissing an application therefor is unlawful or unreasonable.

The method of establishing rates for service by a public utility, when the same is not prescribed by ordinance, is provided by Section 614-16 et seq., General Code, and in accordance with the provisions of above-named section the gas company filed with the commission a schedule of rates it proposed to charge ior gas in the city of Cincinnati.

The contention of the city solicitor, that under the express provisions of Section 614-47, General Code, the public utilities act and the method of procedure therein prescribed have no application to prices and rates fixed by the council of a municipality under the provisions of Sections 3982 and 3983, General Code, overlooks the decisive fact that subsequent to November 4, 1916, there was no effective ordinance of the city prescribing rates of charge for natural gas. No authority has been conferred upon the commission by statute to suspend rates other than that heretofore commented upon. Even if complaint had been filed with the commission pursuant to the provisions of Section 614-44, General Code, and an appeal from the rates prescribed by the ordinance thus taken to the commission, under the express provisions of Section 614-45 the rates fixed by the ordinance would not by such procedure be suspended, vacated or set aside.

Under the provisions of Section 614-21 et seq., General Code, the prices and rates set forth in the schedule filed by the company may be reviewed by the commission either upon its own initiative or upon the complaint of any person, firm or corporation. This schedule is therefore properly on file with the commission. If the rate proposed be challenged, it then becomes the duty of the commission to hear the matter fully, and from a thorough investigation determine whether the rate proposed is unjust or unreasonable. Such thorough investigation would be required, particularly in view of the fact that the rate proposed in the schedule filed is the same as that prescribed by the suspended ordinance passed by the chosen representatives of the city. If the electors considered that an emergency existed calling for early action, that could have been obtained by the submission of the rate ordinance to the electors at a special election under the provisions of Section 4227-5, General Code (104 O. U, 239).

In refusing to summarily establish a new rate, effective pending action upon the referendum petition, and in overruling the motion to strike from its files the schedule of rates proposed by the gas company, the commission committed no error. Its order therefore is in all respects affirmed.

Order affirmed.

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