author: Price, J.

text:
    The State, ex rel. Conrad, v. Patterson.

      No adequate provision by statute — For contest of township trustee election, when — Remedy afforded by Section 2966-39, Revised Statutes — Now Section 5090, General Code — Is not exclusive— Quo warranto is proper remedy — Disputed election of rival candidates — Question of counting certain marked ballots — Ballots locked in box and produced in court• — Court revises evidence of ballots — Relator’s petition dismissed — Election procediire and laws.

    1‘. Where there is no adequate provision made by statute for the contest of the election of township officers, the remedy afforded by Section 2966-39, Revised Statutes, now Section S090 of the General Code, is not exclusive, but quo warranto is a proper remedy for determining the legality of an election of township trustee.
    2. At an. election legally held for the election of township officers there were two rival candidates for the office of township trustee, and during the course of reading and counting the ballots cast for that office, disputes arose as to whether certain marked ballots should be counted for the respective candidates, and the judges of the election rejected all such marked ballots and the count so made resulted in the election of one of the candidates. The disputed ballots were not sealed up and returned to proper authority as provided in said section, and none of the ballots were burned, but were strung with all the other ballots, and locked up in the ballot box at the close of the election, -which box containing all ballots cast was delivered to the township clerk as required by law. In an action in quo warranto brought by the defeated to contest the election of the successful candidate, the township clerk, still having custody of the ballot box, was called as a witness to testify, and produced said ballot box in open court. It was shown that the ballots so locked up in the box had not been changed, marked or altered in any manner at any time after the box came into his custody. The court refused permission for the clerk to open said ballot box and exhibit to the court the ballots that had been marked and cast and which had been in dispute before the judges of the election. These ballots were offered in evidence to prove, and accompanied with the statement that they would prove, that relator had received a substantial majority of the votes cast for trustee at said election. The evidence was excluded and the court also excluded parol evidence offered to show how said disputed ballots had been marked for relator, and thereupon dismissed his petition.

      Held: It was error to exclude the ballots tendered, and, having so .ruled, it was error to exclude the parol evidence offered.
    (No. 12719
    Decided April 18, 1911.)
    Error to the Circuit Court of Jackson county.
    On the 29th day of March, 1910, the plaintiff in error filed in the circuit court of Jackson county the following petition in quo warranto against defendant in error.-
    “For cause of action plaintiff says: That at all the times hereinafter mentioned he was and is a resident of, citizen of, and qualified voter in Coal township, Jackson county, Ohio, and was at all times duly qualified to be voted for for any of the various township offices and was and is duly qualified to hold the office of township trustee; that the defendant, Thomas W. Patterson, is and was at all said times álso a resident, citizen of and qualified voter in said Coal township, and qualified under the laws to hold the.office of township trustee; that at the township election holden on the 2d day of November, 1909, in said Coal township, Jackson county, Ohio, the relator was a candidate for the office of township trustee of said township on the Democratic ticket, it being regularly printed on the regular ballot; that the said Thomas W. Patterson was a candidate for the same office at the same election, his name being on the regular Republican ticket and in proper form; that there were besides relator as candidates for trustee upon the Democratic ticket the names of Joseph Genicks and Levi Wickline, their names appearing in the following order:
    “Charles Conrad;
    “Joseph Genicks,
    “Levi Wickline.
    “And that the Democratic ticket was the first ticket on the ballot; there were besides the defendant, Thomas W. Patterson, the following Republican candidates on the Republican ticket, to-wit: H. A. Kisor and Joseph Rice, the names of the said Republican candidates appeared in the following order:
    “H. A. Kisor;
    “Thomas W. Patterson,
    “Joseph Rice.
    “That the judges, clerks and proper officers of said election after counting the ballots, found that Charles Conrad had received 307 votes, Joseph Genicks 320 votes, H. A. Kisor 333 votes, Thomas W. Patterson 309 votes, Levi Wickline 293 votes, and Joseph Rice 302 votes; that about twenty ballots, the exact number of which relator is unable to state, were designated and marked by the voters in the following way: An ‘X’ was marked in the circle under the eagle of the Republican emblem in proper form, and on the same ballot an ‘X’ was marked in the proper place in the square to the left of the name of Charles Conrad in all of said ballots and no other ‘X’ or other mark was made on said ballots in relation to voting for trustees, and said judges and clerks of election and election officers should have counted in favor of said Charles Conrad, one vote on each of the ballots marked as herein stated, but the said election officers failed and refused to credit the said Charles Conrad with any vote on any of the said ballots and thereby deprived him in the count of at least twenty ballots, and the count thereby resulted in favor of said defendant, Thomas W. Patterson, instead of in favor of this relator. Under the •premises this relator was the duly elected trustee of said township and the defendant, Thomas W. Patterson, was defeated as trustee at said election, but the said election officers awarded the. certificate .of election to the said Thomas W. Patterson, who, on the first Monday in January, 1910, assumed the possession of said office of trustee and now holds the same, such possession and holding being both unlawful, and without any title or right thereto, and has usurped and is usurping the said office of trustee of said Coal township, and has usurped and is usurping the rights, privileges and functions of said office to the prejudice and damage • of the state of Ohio, Coal township and the relator.
    “Wherefore the relator prays the advice and judgment of the court in the premises, and due process of law against the said defendant; relator prays that the defendant be required to answer to the state of Ohio, by what warrant he claims to have, use and enjoy the liberties, privileges and prerogatives as aforesaid of trustee of the township of Coal, and the relator prays that the said defendant may be ousted from said office of trustee, that he be declared to be the properly elected trustee, and that an order issue to said election officers of Coal township, Jackson county, Ohio, directing them to properly count said votes according to the order of the court, and declare the said relator duly elected as such trustee and issue certificate of election therefor, and for all other relief to which the latter is entitled.
    “Charles Conrad,
    “By Joseph McGhee,
    “Timothy S. Hogan.”
    The respondent filed the following answer:
    “Now comes the defendant, Thomas W. Patterson, and for answer to the petition of plaintiff, says, that he denies that there were twenty ballots, or any other number, that were marked as described in the said petition by the voters ¿t said election, which were not properly counted by the said election officers, and denies that any' such ballots so described were not counted for the said' relator.
    “He further denies that said Charles Conrad was or is the duly elected trustee of said township of Coal, or that this defendant in any way usurps said office of township trustee, and further denies that he, the said defendant, was defeated for the office of trustee at said election.
    “He further says that if it should be true that such votes were cast and not counted for the said Charles Conrad, as alleged, that at said election there were as many votes cast for him with the cross under the Democratic emblem and a cross made before his name on the Republican ticket, with no other mark or designation thereon with reference to the office of township trustee that were not counted for him by said board, as there were cast and not counted for said Charles Conrad,’ and that such votes should have been counted for him by said election officers.

      “Wherefore, defendant prays that the petition of the plaintiff may be dismissed, and for his costs.”
    The reply denies all the affirmative allegations of the answer.
    The^ case was heard on the issues joined, and the circuit court excluded nearly all the important evidence offered by the relator, and on the evidence admitted, found against him and dismissed his petition. Motion for new trial was overruled. A bill of exceptions was prepared and allowed, which contains the questions which arose on the introduction and competency of the evidence, and it, with a petition in error, is filed in this court for review.
    The questions involving the competency of evidence offered are stated fully in the opinion.

      Mr. Joseph McGhee and Mr. T. S. Hogan, attorney-general, for plaintiff in error.

      Mr. E. C. Powell and Mr. A. E. Jacobs, for defendant in error.
   Price, J.

As a summary of the facts alleged in the petition, it may be stated that at the election held on the 2d day of November, 1909, in Coal township, Jackson county, the relator, Charles Conrad was a candidate for the office of trustee of said township on the Democratic ticket, and the respondent, Thomas W. Patterson, was a candidate for same office on the Republican ticket. The proper officers holding the election counted the ballots, and found by, their method of counting, that Conrad had received 307 votes for trustee, and Patterson 309 votes.

It is alleged that about twenty ballots were designated and marked by the voters in the following way; an “X” was marked in the circle under the eagle, the Republican emblem, in proper form, and on the same ballot (Australian) an “X” was marked in the proper place in the square to the left of the name of Charles Conrad, on all of said twenty ballots or more, and no other “X” or other mark was made on said ballots in relation to township trustee, and that the judges and clerks of the election should have counted in favor of Conrad, one vote on each of said ballots so marked, but the election officers failed and refused to credit or count for him any vote on said twenty ballots, and thereby deprived him of at least twenty votes, and thereby the count resulted in favor of respondent, Patterson, and the certificate of election was awarded him. He assumed possession of the office of trustee and held the same when the petition was filed in the circuit court.

The respondent denies the above claim and avers, that if it be true that said votes were cast and not counted for Conrad as alleged, that' at said election there were as many votes cast for him with the cross under the Democratic emblem, and a cross placed before his name, that were not counted for him by said election officers, as there were cast and not counted for Conrad, which votes should have been counted for respondent. The relator replies that not over five ballots of the kind mentioned in the answer were cast for Patterson and not counted in his favor.

One of the judges of election, Mr. Griffith, testified at the hearing in circuit court, that during election day at the polls, there was dispute and discussion between members of the board, over counting of ballots for Mr. Conrad and Mr. Patterson, and when asked if the ballots in dispute were preserved, said they were all preserved, but that he had requested the presiding judge to burn them, but it was not done; that Mr. Shook, one of the election officers, had the string of all ballots and threw them in the ballot box and locked them up. This box was left in the town house that night. The relator, Conrad, was not satisfied with the proceedings concerning disputed ballots, and asked this election judge the privilege of an inspection of them, and in • company of the witness, one of the judges at that election, a day or two after the election, they repaired to the town house, opened the box and made partial inspection of the ballots; that no changes were made of the same to knowledge of witness. Witness was then asked if he made any changes. The defendant objected and the objection was sustained. The evidence offered was to prove by the witness that he made no change in any ballot, and saw none made by Conrad. Exception was taken to the ruling of the court.'

Thurman McGhee was called as a witness, who testified that he was an inspector of ballots at said election for the Democratic party; that he was present election night when the ballots were counted by the clerks and judges; that disputes arose as to how certain ballots should be counted in relation to Conrad, and also in relation to Patterson. The question first arose as to the claims for Conrad. Witness was asked how the ballots were marked that Conrad claimed. Objection was made' and sustained. The evidence offered was to prove by the witness that from fifteen to twenty were marked as claimed in the petition, and were not counted for Conrad, and that not to exceed five Avere cast for Patterson as described in his answer, that were not counted for him, and that all other ballots were counted as cast without any dispute.

The relator, Conrad, was also a witness, and testified that he, was a candidate for trustee and that he with witness Griffith, one of the election judges, saw the election box the next morning after the election when it was opened — was asked how many of the ballots he handled. He was not permitted to answer, and the evidence desired wasj that he had his hand on only one ballot. He was next asked if he made any change in any of the ballots, by mark or alteration. The objection tc this question was sustained. The proof offered was that witness had made no changes or alterations in any ballot. He then testified that the box was then locked up and turned over to Mr. Jenkins,' the clerk.

Conrad further testified that he was present when the count was made, and that disputes arose over how certain ballots should be counted as to himself and Patterson — that there were twenty votes for him they did not count.

Pie was then asked how these twenty ballots' were designated. Objection sustained and exception. The proof offered was that . they were marked with the “X” in the circle under the eagle, and the “X” in the proper place to the left of his own name. And witness was not permitted to say whether the twenty ballots were counted in his favor or ruled out.

Thomas Jenkins testified he was not a member of the election board, .but was township clerk, and as such, custodian of the ballot box, which was left in the office of the township house and the key delivered to him. This election box came to his care the evening of the election. The ballot box was locked and the building locked. He had custody of the box always after that time and had it in court during the trial. It was still locked and the key in his possession.

Counsel for relator then asked the court that witness be permitted to open the box and produce the marked ballots in reference to Conrad and Patterson. Objection was made by counsel for Patterson, and it was sustained.

The proof offered was stated as follows: “We wish the record to show that the ballot box which the witness has had possession of is the ballot box that was used at this election, and that it contains the official ballots; it is admitted that they were all counted ballots, and the record will show that it contains ballots as to candidates other than the relator and defendant, and that there are from fifteen to twenty ballots in the box that are marked with the ‘X’ in the circle under the eagle, with the ‘X’ at the left of the name of Conrad in the proper place, and that there are not to exceed five of the ballots in the box with the 'X’ in the circle under the rooster, with the ‘X’ at the proper place at the left of the name of the defendant, Mr. Patterson; and we desire to offer all the ballots separately — the ballots that are marked as alleged in the petition, and that if permitted the party would show that Conrad should have been credited with fifteen more votes, and Patterson not to exceed five.”

Objection to this tendered evidence was sustained to which relator excepted.

The above is the material evidence introduced on the trial, and a statement of what was excluded by the court, and hence the case turns on the competency of the offered evidence which was excluded.

It is evident that if the excluded evidence should have been received, Conrad had a majority of the votes cast for trustee as between him and Patterson, and should have the certificate to that effect.

The Australian Ballot Law has been a boon to the state, in that it has provided many safeguards for the rights of the electors, in having a secret ballot, intended to be free from interference, persuasion or intimidation, by bystanders or other persons, as well as protection against any' influence which any officer of the election board might desire to exert. For many years this law has been in force, which, with some amendments since its adoption in this state, has acceptably served our people and afforded a peaceable and orderly method of conducting our state, county, township and municipal elections.

As to contesting elections, statutory means of making such contest are provided as to the election of state, county and congressional .officers, but-we find none prescribing the mode of contest of township trustee, and therefore the remedy by quo warranto is proper and appropriate in the present case.

The evidence discloses that the election officers did not follow the directions of Section 2966-39, Revised Statutes (Section '5090, General Code), and burn the ballots read and counted, but all were preserved, including disputed ballots, and they were placed in the election box, which was locked, and, with the key, delivered to its proper custodian, the township clerk, who had charge of it and brought it into court on the trial of the case in the court below. The ballots it contained were offered in evidence but excluded. The evi1 deuce offered tends to prove that the box had not been opened, after being locked and delivered by the election officers to the township clerk, electiqn night, save when it was opened the next morning by one of the election judges in presence of one of the election inspectors and the relator, and that no changes, marks ’ or alterations were made on the ballots by anyone, and while the proceeding was irregular and perhaps illegal, it is not claimed that any change in the ballot had been accomplished or attempted. We therefore assume that the ballots in the box placed in custody of the township clerk election night were the same, that it -contained when brought into court.

It is said that the lower court held that while the election officers did not burn the ballots, they were legally dead — legally destroyed, because they should have been destroyed. ‘ But they’- had' no right to burn ballots that were in contest or disputed, if the judges entertained any -doubt as to their- legality. If such doubt was entertained, it was their duty under the section above indicated to seal them up and return - them to the proper authority.

If they had no such doubt, but consigned them to the flames, what t-hen? The; aggrieved candidate would have to resort to parol evidence to establish his right to the office. However, we need .not pursue this thought. • ■ ■

.' This box contained the original ballots — all of them, disputed and undisputed. They were the best evidence of how the electors had voted — -the very best, where it is shown, as in this case, that they had not been tampered with. If they were to be considered as legally dead, then it was error to.exclude the parol evidence as to the contents of the disputed ballots.' The electors' are not to be deprived of the fruits of their votes, when lawfully cast, if the secondary evidence can establish their rights. But were these ballots legally dead? or legally burned? 'They were dead as to use for voting purposes, but they were alive as to evidence of. what they contained when' the voters cast them. Surely the disputed dr contested ballots should not be considered dead because the judges of election had no doubt, • or difference of opinion, as to their legality. ' The judges had no right to legally extinguish ', suclr ballots' merely because they were unanimous, in' opinion that 'they ought not' be counted. .'These ballpts-. were dead'-in -the- sense that they could not be voted again, but they were alive to be counted, if the judges wrongfully rejected them. A corpse is a proper subject of an inquest and a post mortem examination of the dead body frequently furnishes most valuable testimony. So, here, a post mortem examination of these ballots might have clearly established relator’s title to the office. If actually destroyed, parol evidence is competent to show how they should be counted when a contest is on in a court of law.

It is suggested that the remedy in cases like this is provided by said Section 2966-39, Revised Statutes, now Section 5090 of the General Code. We have just left a consideration of that section. According to its last paragraph, when the count of ballots is completed and the result proclaimed, it is said: “When all these requirements are complied with the judges shall, in the presence of the clerks and inspectors, destroy by burning the ballots so read and counted, provided, however, if there are any ballots cast and counted or . left uncounted concerning the legality of which there is any doubt or difference of opinion in the minds of the judges of election, said ballots shall not be destroyed, but sealed up and returned to the deputy state supervisor with the returns of the election, for such judicial or other investigation as may be necessary,. with a true statement as to whether they have or have not been counted, and if counted, what part and for whom.” We are of opinion this so-called remedy is not exclusive and should not be, because of the very incomplete showing or statement required, and it can not apply here, because the disputed ballots were not sealed up and returned to anyone. On the contrary, they were strung and put in the ballot box with the other ballots, as already stated.

In rejecting the evidence offered by the relator, the circuit court erred. If it had been admitted and possessed the probative force claimed in the offer of proof, the relator was elected to the office of trustee and the proper order of ouster and induction into the office would have followed..

The judgment of circuit court is reversed and cause remanded for new trial and . further proceedings according to law.

Judgment reversed.

Spear, C. J., Davis, Shauck, Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Harris et al. v. The Wallace Manufacturing Company.

      Because of plaintiff’s laches — Court of equity will refuse to decree ,specific performance, when — Contract to assign future improvements — In patented invention — Law of contracts.

    Because of plaintiff’s laches a court of equity will refuse to decree the specific performance of a contract to assign future improve- '' merits in a patented invention where the defendant, believing the later to be a wholly independent invention, not embraced in the contract to assign, and acting upon that belief and with the plaintiff’s full knowledge, devotes four years to the expenditure i ‘ of money' and effort to perfect the latter device and to create a market’ for it.
    (No. 11788
    Decided April 18, 1911.)
    Érror to the Circuit Court of Cuyahoga county.
    On June 16, 1906, the Wallace / Company brought suit in the court of common pleas against the plaintiffs in error for the specific performance of a contract whereby it was alleged that J. Harris had on June 1, 1901, agreed — imputing for brevity of statement to both parties the consequences of the acts and omissions of their respective predecessors in right and title — to transfer and assign to it all the improvements in gas burners which he might thereafter invent. This contract was an incident to and a part of an assignment to the Wallace Company of an invention covered by letters patent number 681,052, which was for an acetylene illuminating burner issued August 20, 1901. The present suit is to enforce the claim of the Wallace Company that by that agreement it became entitled to an invention ■ for a gas stove burner covered by letters patent number 704,635, issued July 1, 1902, to J. Harris and by him assigned to the Harris Company. The later patent was in -no sense an improvement upon the illuminating device embraced in the transaction of June 1, 1901, although it is now claimed by the Wallace Company that in view of the principles involved and the terms of the contract of June 1, 1901, the later invention is embraced in that .contract. Upon securing the later patent Harris, and Harris Company, made arrangements to manufacture stove burners under it, and the company continued the manufacture of the stoves thereunder with expenditures of time and money to perfect the device and secure a market for it until the beginning of this suit. During all this time the Wallace Company and persons representing it and its predecessors in title and right, had- full knowledge of the business conducted under the later patent by the plaintiffs in error, witnessed it without objection and without assertion of the right which it now alleges.. There is substantial evidence tending to prove that just prior to the purchase of the later invention by the J. Harris Company, all interest in it was. expressly disclaimed by the Wallace Company.The record presents other facts not material tothe view, we take of the case. The circuit court found for the Wallace Company and decreed the-transfer of the later invention to it in accordance with the prayer'of the petition. .

      Messrs. Foster, Foster & Hartman and Messrs. Herrick & Flopkins, for plaintiffs in error.
    The law clearly distinguishes between an agree- ‘ ment by an inventor or patentee contemporaneously with • the assignment of the patent to. assign any future improvements he may invent that improve the device to which the patent applies; and an agreement to assign any future invention the inventor may make without reference to the patent assigned.
    The law seems to be clearly established that an agreement to assign in gross a man’s future labor as an inventor will not be specifically enforced. McFarland v. Mfg. Co., 53 N. J. Eq., 649; Manufacturing Co. v. Gill, 32 Fed. Rep., 697; Machine Co. v. Bates, 87 Ill. App., 225.
    The burden of proving that it is only an improvement of the original patent is upon the plaintiff. McFarland v. Mfg. Co., 53 N. J. Eq., 649.
    It is also submitted that even though the plaintiff be entitled to the agreement of John Harris to assign future patents, and even though the plaintiff be entitled to have that claim specifically enforced under ordinary circumstances, and even though this defendant be charged with notice, actual or constructive, still, this plaintiff by its own laches and that of its predecessors in title is not entitled to specific performance. Machine Co. v. Machine Co., 32 Fed. Rep., 783.

      Messrs. Parsons & Fits Gerald, for defendant in error.
    The case was argued orally for the plaintiffs in error by Mr. Hopkins and for the defendant in error by Mr. Parsons.
   Shauck, J.

Counsel for the plaintiffs in error present several propositions which in view of the reasons stated, and authorities cited, would be entitled to careful consideration before the judgment under review should be' affirmed. It is urged that the-J. Harris Company is the purchaser of the later invention for value, and without notice, either actual or constructive, of the rights which the Wallace Company now assert, or of the facts out of which it is claimed that those' rights arise. The claim of the Wallace Company that there was constructive notice introduces conflicting views respecting the requirements of constructive notice of rights in property of this character.

• It is further urged that in view of the obvious differences in the devices manufactured under the two patents and the wide dissimilarity between the uses to which they are appropriate, the later should not be regarded as an improvement upon the former with'in the meaning of the contract of June 1, 1901. The claim of the Wallace Company of identity of principle introduces a subject upon which the expert witnesses are not in accord.

It is further urged that the contract upon which the original plaintiff counted, is a contract in gross to assign all future inventions, that it is not incident to a contract of employment and that it is not, therefore, such a contract as will be specifically enforced.

Respecting the evidence tending to show the Wallace Company’s disclaimer of interest in the later invention at the time of the purchase of its rights thereunder by the Harris Company, counsel for the plaintiffs in error admit the general rule ■that when' there is opportunity, the facts out! of :which an equitable estoppel is claimed to arise •must be pleaded, and that in the present-case they are not pleaded by the Harris Company to which they would be availing but only by J. Harris to whom they would be unavailing because he has assigned his interest. But since in this state o'f the pleadings the evidence to establish an estoppel was admitted without objection, is it not entitled to be considered, notwithstanding the absence of such allegations as would make it competent?

Finally, counsel for the plaintiffs in error urge that -the delay of the Wallace Company and its predecessors during four years to assert' the right, .whose enforcement it how seeks, should, upon settled principles, deny it consideration in a court of equity.. If'this point is well taken the others need riot be examined further. To this point the oft-approved statement of Lord Camden in Smith v. Clay, 3 Bro. C. C., 640, is appropriate:. “A court of equity which is never active in relief against conscience or public convenience has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience,- good faith and reasonable diligence.” Indeed the fundamental truth has found a condensed expression .in the familiar maxim, equity aids the vigilant, not those who slumber on their rights. The restraining influence of. that maxim may be seen throughout the administration -of equitable relief. It regards the .just and • important considerations • that rights should be asserted before, lapse of time! may have added to the-difficulty and uncertainty in’, judicial inquiry, and before acquiescence may have encouraged the adverse party to so change his position with respect to the subject that the enforcement of the right would impose unnecessary loss or hardship upon him. Certainly the rule also regards circumstances, if any appear, reasonably justifying or excusing the delay, and it regards conduct of the defendant, if any there appears, by which he may have.encouraged such delay. What delay will be fatal to the assertion of an equitablé right is not always, perhaps • not usually, to be determined from lapse of time alone. So potent with respect to that question may be the attendant circumstances that even the -delay of four years in the present case, it is conceivable might find equitable excuse. In considering- the circumstances attending the delay in the bringing of this suit, distinction between the parties and their predecessors in right may be ignored. Throughout the four years the J. Harris Company was openly operating under the second of the patents here brought into view, and expending time and money in perfecting and bringing to sale an acetylene heating device, in which it created a monopoly. Of all they did in that regard the Wallace Company was fully aware from the beginning to the end of the four years. It is not necessary, to impute to the Wallace Company a deliberately formed design to secure, without return, a market for the second device created by the labor and expenditure of the Harris Company. So widely different in appearance and application were the two devices that it probably did not at any time in the four years occur to either, party that the later patent was an improvement upon the former within the terms of the contract of June, 1901. The Harris Company was guilty of no fraud or concealment, and it can not be held to a fuller comprehension of the rights of the Wallace Company than it had. Upon the assumption we are now making, that the later invention was an improvement on the former, it must in the equitable view be regarded as the misfortune of the plaintiff if it did not know the extent of its rights,- as it must be regarded as its want of conscience if it knew of those rights and did not make an earlier assertion of them. The case presents no consideration which would justify a court in decreeing the specific performance of the contract after a delay of four years in the assertion of the alleged right. On the contrary, there are conspicuously present the unnecessary hardship to the defendant and the suggestion of insecure foundations of decrees which have given to laches a recognized place among equitable defenses.

Judgment reversed and judgment for plaintiffs in error.

Judgment reversed.

Spear, C. J., Davis, Johnson and Donahue, JJ., concur.


author: Davis, J.

text:
    Oberlin v. Upson.

      A woman cannot maintain action — Against her seducer, when.

    In this state a woman cannot maintain an action against her seducer for damages arising from her own seduction.
    (No. 11580
    Decided April 18, 1911.)
    Error to the Circuit Court of Richland county.
    The plaintiff commenced her action against the defendant in the court of common pleas, and subsequently filed an amended petition of which the material averments are as follows: “That. at the time of the commission of the grievances hereinafter mentioned, she the said Nora Oberlin was and now is an unmarried female. ■
    “She further says that along about the spring of 1905, as nearly as she. can remember the last of April or the first of May, of the said year, that the said defendant, James Upson began paying attention to her, the said plaintiff, and continued so to do for more than a year. That he frequently during said time took her out automobiling and otherwise entertained her by buggy riding, calling upon her at her home and at the residences of her friends and relatives. And, as aforsaid, this conduct continued until about July 20, 1906, during which said time he had, by his continued attentions to her, and by his blandishments and protestations of ^ affection and the like, gained her respect, her confidence and affection.
    “And she further says that on account- of the things above set forth and on account of‘his-persuasion and various inducements and because he did in connection therewith importune her the said plaintiff, to have illicit relations with him, and because of her respect and confidence in him, she • did submit to his desires and did have such' relations with him. But she further alleges that at all times she relied upon his promise, which he frequently made of marrying her; and she further asserts that had it not been for such promise she would not have submitted to his desires, but, as herein alleged, because of the fact that he had gained her confidence, esteem and affection, coupled with his promise of marriage, she did submit as herein alleged, to his desires, and as a consequence of such relations she asserts that she became pregnant, and that the said defendant is responsible for her said condition.
    “She further says that on account of her illicit relations with him, the said defendant, she was delivered of a bastard child November 2, 1906; and that defendant is the father of said child; that she suffered great pain both of body and mind on account thereof, and was compelled to pay the sum of ........ dollars for medical attendance during her sickness and........dollars for nursing and other incidental expenses whereby plaintiff has been damaged on account of the things alleged in this amended petition in the sum of $8,000, for which she demands judgment.”
    To this amended petition a demurrer was filed, on the ground that it did not state a cause of action. The demurrer was overruled and an answer filed, and on the trial of the issues in the court of common pleas, a verdict was rendered in favor of the plaintiff. The circuit court reversed the judgment of the court of common pleas, on the ground that the amended petition did - not state a cause of action, and this proceeding is prosecuted to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.

      Messrs. Kramer & Jarvis, for plaintiff in error.
    In all cases where the parties, either by acquiescence or convention, occupy confidential relations, the legal relation of trust and confidence exists, e. g., principal and agent, husband and wife, attorney and client. Rich v. Railway Co., 382; Cooley on Torts (1888 ed.), 598.
    There' is perhaps no' relation of life in which more unbounded confidence is reposed than in that existing between parties who are betrothed to each other. Especially does the woman place the most .implicit trust in. the truth and affection of him in whose keeping she is about to deposit the happiness of her future life. Kline v. Kline, 57 Pa. St., 120; Lamb v. Lamb, 130 Ind., 273; Cooley on Torts (1888), 597.
    In his promise of marriage, he obligates .himself not only to keep the contract of marriage, but also to conduct himself in such a manner as to command her respect, confidence and trust, and to conduct himself so that he will not abuse the confidence and betray the trust placed in him. The most serious fraud accomplished, in this relation is that of seduction. Sheahan v. Barry, 27 Mich., 217; Cooley on Torts (1888), 597.
    Then according to the general proposition laid down above, the female, the party injured, could elect to bring an action ex contractu for a breach of the contract, or she could bring an action ex delicto for a betrayal of the trust and an abuse of the confidence.
    If she sees fit to bring her action in contract, she can introduce the.fact in evidence that she was seduced, that she had sexual intercourse, became pregnant and was delivered of a bastard child. Matthews v. Cribbett, 11 Ohio St., 330; Bennett v. Beam, 42 Mich., 346; Goodall v. Thurman, 38 Tenn. (1 Head), 209; Kelley v. Riley, 106 Mass., 339; Sherman v. Ramson, 102 Mass., 395.
    In considering this question of seduction, some courts have confused the terms “seduction” and “sexual intercourse.” While there are no direct decisions upon the question, yet courts have in obiter dicta hesitated to sanction an action of this kind for- the reason that the foundation of the action would be the sexual intercourse. It must be remembered, however, that seduction is not sexual intercourse, neither is sexual intercourse seduction. Johnson v. Holliday, 79 Ind., 151; Blagge v. Ilsley, 127 Mass., 191; Graham v. McReynolds, 90 Tenn., 673; Baird v. Boehner, 72 Ia., 318; Marshall v. Taylor, 98 Cal., 55.
    The foundation of the action in tort is the breach of duty, the sexual intercourse is the result of the breach and the direct object of the breach. To be sure she gave her consent. So does every one who is defrauded by placing too much confidence in another. The foundation of the action is not what was done, but the means employed to accomplish his ends. O’Callaghan v. Cronan, 121 Mass., 114; Cooley on Torts (1888), 599.

      At common law, without the promise of marriage, the female has no cause of action, for her own seduction, for the reason that she has nc foundation for her action. He owes her no duty for the breach of which he would be liable. Woodward v. Anderson, 72 Ky. (9 Bush), 624; Heaps v. Dunham, 95 Ill., 583; Bartlett v. Kochel, 88 Ind., 425; Cole v. Hoeburg, 36 Kan., 263.
    When the promise of marriage is made and she relies upon it, the relation is established which places a legal duty upon him, for the breach of which he is liable.
    Sexual intercourse, impregnation and birth of a bastard child is an injury much more proximate to the breach of duty than to the breach of contract. Courts almost universally allow these facts to be. introduced as evidence in a suit for breach of contract. Then why should they not be alleged and proved in an action for. breach of duty? Giese v. Schultz, 53 Wis., 462; Goodall v. Thurman, 38 Tenn. (1 Head), 209; Cooley on Torts (1888), 73; White v. Thomas, 12 Ohio St., 312.
    There are no authorities directly holding that she has such right of action. But it seems to us that the following «authorities are almost in point: Howland v. Carson, 28 Ohio St., 625; Weiher v. Meyersham, 50 Mich. 602; Rabeka v. Baer, 115 Mich., 328; Paul v. Frazier, 3 Mass., 71; Postlethwaite v. Parkes, 3 Burr., 1878; Tullidge v. Wade, 3 Wils. K. B., 18.

      Mr. W. S. Kerr, for defendant in error.
    There is no allegation that plaintiff in error agreed to marry defendant in error, nor is there an allegation that defendant in error refused to marry plaintiff in error. The petition- simply asks damages for seduction.
    There is no statute in Ohio authorizing the action. It therefore becomes necessary to sustain it, if at all, under the rules of the common law. Hanks v. Naglee, 54 Cal., 51; Paul v. Frazier, 3 Mass., 71, 3 Am. Dec., 95; Hamilton v. Lomax, 26 Barb., 615; People v. Clark, 33 Mich., 112; 2 Addison on Torts (6 ed.), Sec. 625, p. 752; Abbott’s Trial Evidence (2 ed.), 859; 2 Kinkead’s Code Pleading (2 ed.), Sec. 1124; Hodges v. Bales, 102 Ind., 494; Hood v. Sudderth, 111 N. Car., 215; Smith v. Yaryan, 69 Ind., 445, 35 Am. Rep., 232; 25 Am. & Eng. Ency. Law (2 ed.), 197; Dennis v. Clark, 72 Mo., 574, 37 Am. Rep., 447; Roper v. Clay, 18 Mo., 384; Dicey on Parties, 349; Woodward v. Anderson, 72 Ky. (9 Bush), 624; Galvin v. Crouch, 65 Ind., 56; Conn v. Wilson, 2 Overton, 233; Weaver v. Bachert, 2 Pa. St., 80; Buckles v. Ellers, 72 Ind., 220; Heaps v. Dunham, 95 Ill., 583; Welsund v. Schueller, 98 Minn., 475; Breon v. Henkle, 14 Ore., 494.
   Davis, J.

Ünder the common law of England as it has been recognized and administered in this country, a woman cannot maintain against her seducer an action for damages arising from her own seduction. This is frankly admitted ■ by the counsel for the plaintiff. in error; but they ask a reversal of the judgment below upon the ground that the plaintiff was induced to consent' to the solicitations of the defendant by.a betrayal of the love and confidence which had been engendered in her by a period of courtship and by a promise of .marriage' riiade. by -him. Confessedly, this' isinot an action ex contractu upon a promise of marriage, in which the ■ seduction. ■ might be- pleaded and proved as an aggravation of damages; but it is -clearly an ■ attempt to recover ex delicto. There is no averment of mutual promises or of an agreement to marry; arid an analysis of the amended petition discloses no more than that the defendant’s promise was one of the blandishments by which he accomplished his purpose. The case, therefore, presents no exception to the common law rule; for there is no claim of fraud, violence or artifice other than mere solicitation.

The theory of the common law. is that, since adultery and fornication are crimes, the woman is particeps criminis and hence that she cannot be heard to corriplain of a wrong which she helped to produce. It may be conceded that some of .the arguments adduced here might be fairly persuasive if addressed to the legislature. Indeed in several-of the states statutes have been enacted authorizing such an action; but a careful, study of the decisions in those states, limiting and construing those statutes, raises a doubt whether the legislation is a real advance upori the common law. 8 Ann. Cas., 1115, note. There is, however, no such statute in this state and the common law rule applies, "j

The judgment of the circuit court is

Affirmed.

Spear, C. J., Shauck, Price and Johnson, JJ., concur.

Donahue, J., not participating.


author: Spear, C. J.

text:
    The Cleveland Leader Printing Company v. Nethersole.

      Action for libel — Malice inferred upon proof of publication, when— Publication must reflect upon character of subject — Though untrue may not be libelous — Libelous nature of publication question for court — Law of libel.

    1. In an action for libel, malice is inferred upon proof of the publication’of. defamatory matter, whatever the intention, unless published in the performance of some duty, legal or moral, or in the exercise of some right or privilege. But where the publication is found not to be defamatory in the sense of constituting a libel per se, malice is not presumed and there can be no recovery in the absence of proof of special damage.
    2. To constitute a publication respecting a person libelous per se, it must appear that the publication reflects upon the character of such person by bringing him into ridicule, hatred or contempt, or affects him injuriously in his trade or profession. Hence a statement published in a newspaper of and concerning a woman . that she “had hysterics,” the same not containing any imputation upon her as an individual, or in respect to her profession or business, is not, though untrue, per se libelous, and cannot be made a ground of recovery of damages in the absence of proof of special damage.
    3. A statement published in a newspaper that a play owned by such woman had been hissed is a statement prejudicial to property, arid even if untrue and libelous, is not a statement involving a libel upon the owner of the play.
    4. In an action to recover for an alleged libel the question whether the publication is or not. libelous per se is a question for the court. (Mauk v. Brundage, 68 Ohio St., 89.) And where the publication is, as matter of law, not libelous per se, and no evidence has been given tending to show special damage; it is the duty of the court to sustain a motion by defendant, made at the close of the evidence, to direct the jury to return a verdict for defendant.
    (No. 11741
    Decided April 18, 1911.)
    Error to the Circuit Court of Cuyahoga county.

      The action below was by the defendant in error, Olga Nethersole, against the plaintiff in error, The Cleveland Leader Printing Company,.in libel, commenced and tried in the court of common pleas of Cuyahoga. The plaintiff below is an actress and a producer of plays upon the stage; the defendant below is the publisher of a daily newspaper called “The Cleveland Leader,” published in the city of Cleveland and of extensive circulation in that city and throughout surrounding territory. The alleged libel was published in the Sunday edition of the paper of date March 25, 1906. During the preceding week Miss Nethersole had produced in the opera house in Cleveland four plays known respectively as “Camille,” “Carmen,” “The Labyrinth,” and “Sappho,” appearing herself in one of the leading parts in each. The publication embraced certain criticisms of the theater generally, and of the above named plays in particular. The whole article here follows:
    “The regulation clerical Boanerges who thunders against the stage has no personal knowledge of the truth of his charges. He frankly admits that he has never stepped foot within a theater;. He speciously claims that his ignorance is inspired; that he can sniff the carrion odor from afar.
    “It has always seemed to me that such a fellow purposely kept his eyes shut tight that he might open his mouth the wider. With no bars up, he could range the whole universe of misrepresentations and invective. When such a one does strike a truth or half-truth, the bias, the illogic of the rest blunts his effects. He cries ‘Wolf!’ too often and too stentoriously.

      ■ “There are clergymen, however, who look at the question honestly. They examine and analyze. They see before they shout. One can respect their sincerity if he cannot approve all their findings. And it often happens that they say things that are true and needed.
    “Of this class is the Rev. Dr. Reuben A. Torrey, the evangelist, who set all England aflame a few months ago and is now stirring up Philadelphia. That town is ripe for a revival. The quickening of the public conscience in regard to political iniquity has attuned it to individual awakening on its religious and moral side.
    “In his daily addresses, Dr. Torrey has not let the theater pass unscathed, but his terms have been so moderate, so free from sensationalism, so devoid of the rant and bluster and bombast of the evangelist of the familiar type, that they inspired the dramatic critic of the Philadelphia Evening Telegram to seek Dr. Torrey out and have a heart-to-heart talk with him.
    “In his talk Dr. Torrey was perfectly uncompromising upon the question of the theater, and equally temperate. He condemned, but did it moderately.
    “He gave his views as follows: 'My position is that the theater is a safe place for the Christian to stay away from. I do not speak from, hearsay or from theory, but from knowledge, d formerly attended the theater, and know it.
    . “ T want to be understood as not for a moment declaring that all actors are impure and immoral, and I think that Clement Scott went too far. But take the life of most of them. They seem to think ■that they are exempt from all the canons’ of.morality, and put their belief' into practice.
    “ ‘Most plays are directed at the domestic relation,' and are subversive of and insidiously attack the domestic state. Theoretically, the theater can be made an educational influence and a force for good in the life of a people, but in practice it cannot.
    “ ‘My observation is that the morals of the stage are worse now than they ever were, and I know what I speak of. I know a young woman, pure and good who went on the stage. I went abroad, and when I returned I found that she was playing parts calling for men’s attire.
    “ T have frequently received letters from actors drawing my attention to the many noble men and women of the stage, but in each instance these men and women were dead.
    “ ‘Once in London I met the greatest’ actor in Europe, and we had a long talk upon this very question, and when we had finished I' was more satisfied than ever of the impossibility of the stage¡
    “ ‘There is nothing for a Christian to do but to stay -away from the theater. Its atmosphere is bad, and it raises questions in the minds of young people that are unnecessarily dangerous. ’ I believe in- relaxation and amusement' for people, but not those of the theater. In my congregations I have had theatergoers and- non-theatergoers, and the latter always enjoyed life more quietly and peace: ably than the former.’’
    .“There is food for thought in much .'that Dr. T.orrey sa-ys.' Indeed,, if I. am not mistaken, much of the criticism he makes has been in our minds also, and no one can accuse us of antagonism to the stage. . In fact, our love for it makes us its sternest critics at times.
    “We can pass over without much comment his remarks', on the unwholesome atmosphere of the stage and its pernicious effects on the youthful mind. All it needs is the qualification ‘sometimes.’ One of those times was last week, when the whole Nethersolian repertory failed to provide a helpful situation or one that was not tarred with suggestiveness. All the plays left nasty tastes in .the memory. As I recall them, ‘The Labyrinth’ was the worst of the lot. Cleveland received it frigidly, as is the American way when displeased or disgusted, but when it was produced in London it .was hissed so soundly that Miss Nethersole had hysterics.
    “We can guard against these brazen, fleshly plays, however. The honest-minded writer about the stage will point out their dangers. The greater evil lies in the subtle undermining of the character which follow upon laughing attacks made upon domestic life.
    “If you have witnessed any of the farces that have been popular in the past score of years, you will recall that they have all been variants of one theme. And that was the hood-winking of a wife by a larky husband.
    “The changes that have been rung on this one idea show greater ingenuity than morality on the part of the dramatists. They have only put the husband in a single situation — an entanglement, more or less- serious, with a woman — but they have found a thousand and one ways of extricating him from it.
    “The danger of such plays lies in the way that the audience receives them quite as much as that in which they are presented! The complications are always so humorous that they convulse the auditor. And when you laugh at an evil you condone it.
    “I am not a prude and I don’t wish to be a preacher, but there is a great danger here, and a growing one. The whole social situation doesn’t make, as it should, for the sanctity of married life and its preservation. .The follies of the world have too great a grip upon both husband and wife. They do not trot in double harness as smoothly as they did; they do not try to get each other’s gait, as was once the case.
    “Under such conditions is it a positive evil to have the stage make mock of marital misdemeanors with all of its misplaced eloquence and ingenuity. It is like touching torch to tow in some cases. In all it is destructive.
    “The danger, too, does not lie alone in the way the masculine mind grasps its opportunity and improves upon it. There is also a perversive feminine education. It teaches the wife that what is ■sauce for the goose is also sauce for the gander. And it puts before the young girls who are contemplating marriage — which means them all, for there is none predestined to spinsterhood — a false and unwholesome idea of the world. ■ It makes them suspicious. It breeds a distrust that may, in turn, breed something worse.

      “Now, • the-average. woman doesn’t believe in man. It is part of her creed to hold him as wicked or "full-of potential wickedness. If she' is a domestic body, loyal to her own fireside, she will .exclude her own male relatives, but -the rest of the ■world is-, tarred with a big black stick. When the .stage emphasizes this belief or this disbelief, rather, when it shows man as errant in his love and .chortling over it, then it. demands the denunciation .of' the laymen and the scourging of the clergy far more than in its open,, flagrant fleshliness.
    “The church can do much for the purity of the stage by treating it truthfully and temperately. If it froths ■ at the mouth at evils which do not .exist, it will nullify the good it might accomplish when if scores those-that are obvious.
    “Let the next clergyman who wishes to de: ,-noünce the theater.'speak from knowledge and let him spealc moderately. Let him select one of these farces which -.turn man’s deceit and woman’s righteous, indignation into merriment. Then let him go up in his pulpit and reason out the matter with -his people.'
    “And -when he has done that he has only performed half his duty. Let. him visit the theater again, ,and this time .select a play — and-there are many of them — which teaches sound morality; which has the call to better life and thoughts tc those who see it; which stirs them like a trumpet blast to duty; and which makes them fierce and denunciatory toward brazen evil and compassionate toward, that which .is the result of ignorance and environment and. heredity, and which, moreover, is sought to be overcome by its victim.

      “With this better knowledge let him mount to his pulpit again and relate his experiences and his impressions.
    “Then, as men are. free agents and he but a monitor and not a master, let him place upon his people the burden of right choosing.
    “Such a man would have a following that would fill his church and his contribution box and he would work inestimable good.
    “Who will be the first man of the cloth to try?
    “Sage.”
    The plaintiffs petition contained apt innuendos and averments common to petitions in libel respecting the falseness of the article, of its libelous character, of malice on the part of the publisher in publishing it; that it has caused plaintiff great mental distress, and she has been greatly damaged in her good name, and brought into public shame and that her business as manageress and actress has been injured and she has sustained great loss thereby. The answer contained denials of these averments and alleged that the publication was made in defendant’s capacity as a public journalist, that the same was a fair, impartial criticism, and that the publication was privileged. The petition also contained an averment of special dam: age, but the evidence of plaintiff failed to support that claim. Hence the question was, and was stated by the trial judge to be, whether or not the article contained words which of themselves aré actionable per se, and would warrant a verdict for plaintiff without proof of special damage. Counsel for defendant contended for the.negative of this proposition, and, standing on that claim, presented at the conclusion of all the evidence a motion asking the court to arrest the case from the jury and direct a verdict for the defendant; which motion was overruled. Proceeding thereupon to instruct the jury the court eliminated from their consideration as respecting words libelous per se-all of the article save that part which related to the play called “The Labyrinth,” and with respect to that part charged the jury as follows:
    . “I therefore say to you that the publication tc the effect that the production of 'The Labyrinth’ as presented by Miss Nethersole in Cleveland, was received frigidly, and when it was produced in London, it was hissed so.soundly that Miss Nethersole had hysterics, must be deemed to be libelous as affecting thé plaintiff in her business and profession, and she is entitled to recover a verdict in this case.”
    A verdict for plaintiff in the sum of twenty-five hundred dollars followed, and judgment was rendered thereon. On error in the circuit court that judgment was affirmed. The Printing Company asks a reversal of both judgments.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error,
    cited and commented upon the following authorities:

      Pollard v. Lyon, 91 U. S., 225; Davis v. Brown, 27 Ohio St., 326; Spurlock v. Investment Co., 59 Mo. App., 225; 25 Cyc., 255; Swan v. Tappan, 5 Cush., 104; Gott v. Pulsifer, 122 Mass., 235; Dooling v. Publishing Co., 144 Mass., 258; Boynton v.
      Stocking Co., 146 Mass., 219; Divens v. Meredith, 147 Ind., 693; Safe & Lock Co. v. Deright, 147 Fed. Rep., 211; Kennedy v. Publishing Co., 41 Hun, 422; Fire Arms Co. v. Shields, 171 N. Y., 384; Anonymous, 1 Ohio, 83, n.; Goldrick v. Levy, 6 W. L. B., 20; Roberts v. Mason, 10 Ohio St., 278; Finney v. Smith, 31 Ohio St., 529; 18 Am. & Eng. Ency. Law (2 ed.), 1117; Mason v. Hawes, 52 Conn., 12; Wynne v. Parsons, 57 Conn., 73; Earl v. Tupper, 45 Vt., 275; Journal, etc., Co. v. Pugh, 6 Ind. App., 510; Grotius v. Ross, 24 Ind. App., 543; Irlbeck v. Bierle, 84 Ia., 47; Hicks v. Foster, 13 Barb., 663; Halstead v. Nelson, 24 Hun, 395.

      Mr. J. 'P. Dawley and Messrs. Blandin, Rice & Ginn, for defendant in error,
    cited and commented upon the following authorities:

      State v. Smily, 37 Ohio St., 32; Malone v. Stewart, 15 Ohio, 321; Finney v. Smith, 31 Ohio St., 529; Power Co. v. Matheny, 81 Ohio St., 204.
   Spear, C. J.

Manifestly the crucial question in the case is whether or not the comment respecting the play called “The Labyrinth,” connected with the statement that Miss Néthersole “had hysterics,” "was libelous per se. One assumption in support of the affirmative of this question is that the article was directed against the plaintiff below,while the contrary claim is that it was directed against the play — the thing itself. Was it directed against the plaintiff? The article is entirely free from anything like a libelous attack upon Miss Nethersole. True, she is referred to, and it is stated that she had hysterics. That a woman has fainted, or has had hysterics, is so common an occurrence that a statement to that effect, though untrue, (and the legal effect of the record is that it was in this case untrtie), falls far short of being a libel per se upon such woman, and, leaving that reference to the plaintiff out, the statement is at once but a statement that the play was soundly hissed in London, which was also untrue. As tersely stated by counsel for defendant below; “It” (the article) “has no reference whatever tc Miss Nethersole; it does not say that she is not qualified for her profession; it does not say that Miss Nethersole was received frigidly in Cleveland; it does not say that Miss Nethersole was hissed in London. It says that the play ‘The Labyrinth’ was received frigidly in Cleveland; it says that the play ‘The Labyrinth’ was hissed in London.” Besides, the record, shows that Miss Nethersole was not charged with any lack of character, or of womanliness as a woman; and the court as we understand it found as a' fact, that there was no charge or imputation against her as a woman.

It is, however, claimed that the alleged libel was against her in her profession or business. Here, again, the record contradicts the claim. She was not charged with any lack of ability or character as an actress, nor with any lack of ability or df good judgment as a manager; indeed no’ref-' ererice whatever to her conduct or management in either respect was had, the court having distinctly so found and held. The case, therefore, presented a situation where the evidence afforded no ground for an allegation of actual malice, and no ground for a claim that the plaintiff had, by reason of the publication, been subjected to public disgrace, contempt or ridicule, and where the only part of the article which was found to be libelous per se could not be considered as evidence of express malice in respect to criticisms otherwise not unfair or unreasonable. The learned judge held that the balance of the article was not of itself unfair, or unreasonable, and therefore not libelous.

How, then, could the article be treated as a libel upon Miss Nethersole? It is alleged that by reason of this article she has suffered mental distress. Quite likely. But is that a test of whether the article is against her rather than exclusively against the plays? No person, man or woman, can witness sharp criticism of his or her own production, play, book, song or what-not, without more or less mental discomfort, and possibly, in a remote way, some trivial loss. Take a familiar event as an example. Recently there appeared before the American public, on the lecture platform, and in other public places perhaps, a somewhat noted navigator offering - certain proofs of his claim that he had discovered the north pole. Newspapers and scientific journals commented severely upon the proofs, seeking to show that they were bogus. Undoubtedly the navigator felt much distress, and it is quite likely that many people thought less of him because of those attacks, but does that afford any reason for saying that the attack was upon the man ? And though the writer of such criticism had, in some non-essential particular, been mistaken as to a fact, would that show, that the attack was on the navigator rather than on the proofs, and give an action as upon a libel per se? It would seem not. And is fair criticism of proofs of an exhibition to be penalized because it may cause some distress or even loss of profits to the exhibitor, especially where the amount of such loss might thereby be saved to the public?

Although the distinction between a libel upon a person and a libel upon that which is the property of a person, is somewhat nice, and although in many cases the distinction is not easy to demonstrate, it often being difficult to apply the settled rules of law to the particular facts of the case, and although the decisions illustrating the subject are not altogether consistent, one with another, yet the rule seems to be well established to the effect that while by the law of libel defamatory language is actionable without special damage when it contains a damaging imputation against one as an individual, or in respect to his office, profession or trade, it is not actionable when it is merely in disparagement of one’s property unless it occasions special damage. Illustrations of the principle are found in text-books and in a number of reported cases, a few only of which will be here cited. In Tobias v. Harland, 4 Wend., 537, being a slander suit for uttering words injurious to a manufactured article, the court held that “where the words are spoken-not of the trader or manufacturer, but of the quality of the article made or dealt in, to render them actionable per se, they must import that the plaintiff is guilty of a deceit or malpractice in the making or vending, or of want of skill in the manufacturing of the article,” Marcy, J., stating in the opinion that “no instance can be found, I believe, where an action has been sustained on words for misrepresenting the quality of any single article which a person has for sale, unless special damages are alleged and proved.” The holding in Young v. Macrae, 113 C. L. R., 264, (a libel suit), is to the effect that if a person falsely and maliciously disparages an article which another manufactures or vends, and special damage results, an action will lie although no imputation is cast on the personal or professional character of the manufacturer or vendor, the plain inference being that unless special damage results no- recovery could be had. In Dooling v. Budget Pub’g. Co., 144 Mass., 258, it is held that the publication of an article stating that a dinner furnished by a caterer on a public occasion was “wretched,” and “was served in such a way that even hungry barbarians might justly object,” is not actionable without proof of special damage. In Kennedy v. Press Pub. Co., 41 Hun, 422, it is held that an article severely reflecting on a Coney Island saloon was a libel on the place and not on the proprietor, and, in the absence of any averment of special damage, the facts stated did not constitute a cause of action. Townsend, in his work on slander and libel, sec. 130, observes: “Whether the libel concerns a person or thing, i. e., the affairs of a person, is material in this respect: that language when it concerns a person and is discommendatory, is always, in the absence of any evidence to the contrary regarded as uncalled for, as published without any lawful excuse, and is not to be believed and considered as true unless its truth be established, or, as the phrase is, such language is presumed to be malicious and false. But if it is language concerning a thing, no such presumption is indulged, and upon those who allege language concerning a thing to be false and malicious is the burden of establishing those conclusions by other evidence than that afforded by mere production of the language. And besides, to give a cause of action for language concerning a thing, damage, general or special, must in all cases be alleged and proved.” In Marlin F. A. Co. v. Shields, 171 N. Y., 384, Parker, C. J., after reviewing Tobias v. Harland, Kennedy v. Press Pub. Co., and Dooling v. Budget Pub'g. Co., heretofore cited, and Le Massena v. Storm, 62 App. Div., 150, (a suit in slander), all to the effect that “words relating merely to the quality of the article made, produced, furnished or sold by a person, though false and malicious, are not actionable without special damage,” adds: “We need not stop to consider the reason for the rule for it has been too long and too firmly established to admit of question at this day.” The holding in the instance case is that “unjust and malicious criticisms of a manufactured article, published in a magazine, for which the manufacturer has no remedy at law because of his inability to prove special damage, are not the subject of equitable cognizance, and their future publication cannot be restrained by injunction.” Reference to other cases of like import, cited by counsel for plaintiff in error, will be found in the Reporter’s notes.

A not unimportant consideration pertinent to the general subject is that of so-called privilege. It rests upon that clause of our Bill of Rights, section 11, which provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.” Then follows that which relates to criminal prosecutions for libel, to the effect that if the matter charged as libelous is true, and is published with good motives, and for justifiable ends, the party shall be acquitted. The liberty thus given is to publish truth with good motives and for justifiable ends, and this is so whether the publication affects government, property or individuals. Not that this implies a distinction as to limitation of right between a newspaper publisher and any other individual, for the publisher is not, at common law, privileged as such in the dissemination of news, but is liable for what he publishes in the same manner as any other individual. But it is not to be inferred that the publisher is subject to any severer rule as to liability. Townsend on Libel, sec. 252. Hence it follows, as held in Henwood v. Harrison, 7 L. R. C. P., 606, that “the fair and honest discussion of or comments upon a matter of public interest is in point of law privileged, and is not the subject of an action, unless the plaintiff can establish malice.” The rule is more fully stated by Gray, C. J., in Gott v. Pulsifer, 122 Mass., 235: “The editor of a newspaper has the right, if not the duty, of publishing for the information of the public, fair and reasonable comments, however severe in terms, upon anything which is made by its owner a subject of public exhibition, as upon any other matter of public interest; and such a publication falls within the class of privileged communications for which no action can be maintained without proof of actual malice.” A recent text-writer indicates an opinion that the word “privileged” means that the words are not defamatory — that criticism is no libel. Newell on S. & L., p. 566. Either construction vindicates the right. See, also, the comments of the author on the general subject on pages 567 and 586. See, also, comments of Townsend, in his work on libel, sec. 252. Also' Folkard’s Starkie, secs. 255 and 256.

Attention is called to Mauk v. Brundage, 68 Ohio St., 89, as justifying the ruling below. We think that case so essentially different as to afford but little, if any, light. The publication directly concerned acts, practice and treatment of his patients by the party as a physician, and so affected him injuriously in his business; in no sense was it a libel upon his property. Nor do we find any Ohio case on an exact parallel with the case at bar. Davis v. Brown, 27 Ohio St., 326, was for defamation of a person. The court held that to be actionable words must import either a qharge of an indictable offense involving moral turpitude or infamous punishment; or impute some offensive or contagious disease calculated to deprive a person of society; or tend to injure him in his trade or occupation; each class affecting and confined to defamation of the person. That isn’t our case. The other Ohio cases cited by the counsel, each and all, involve charges against or defamation of, the person; not one of the charges is directed against property. Among the cases specially referred to by counsel is that of The State v. Smily, 37 Ohio St., 30. That was a criminal prosecution upon an indictment charging the defendant with having falsely and maliciously published of another that his house had been searched, under legal process, for the discovery of goods recently stolen, and supposed to be there secreted. This court held the publication to be a libel. There is a discussion in the opinion as to certain distinctions that exist between words spoken and the same words written and published. These distinctions are recognized by the text-writers and by certain decisions, but as we do not rest our conclusion wholly or mainly on cases in slander, but principally upon cases in libel, it is not necessary to pursue the reasoning upon which those distinctions obtain. As to this criminal case, it is .enough to say that it concerns the person only, and, in its facts, there is no sort of resemblance to the case at bar. We have felt it safer to adhere to what we conceive to be the well established rules respecting actions of this general character rather than seek to extend or enlarge them, and in this course we but follow the policy of decisions beginning with Wilson v. Rob bins, Wright, 40, followed by Alfele v. Wright, 17 Ohio St., 238, and of Davis v. Brown, supra, where comment in both the other cases is quoted ■to the effect that: “We feel neither disposed nor authorized to extend the innovation.” It is true that- these three cases were actions in slander, and that the innovation demanded was the application to words uttered concerning a man rules regarding liability which had been held to apply to words pttered, concerning a. woman, but we are unable to perceive why any distinction should be made as to the matter of policy itself.

It is urged by the learned counsel for defendant in error that this court should look beyond the part held by the trial court as libelous and consider the entire article in determining whether at the conclusion of all the evidence a verdict should have been directed. We agree with this claim and have examined and considered the entire record. Such consideration,' however, leads to the conclusion that the excluding from the jury of certain parts of the article, being all that part except the paragraph herein before quoted as part of the charge to the jury, save for such use as may be pertinent .for an understanding of the statement of “The Labyrinth” ■ being received frigidly in Cleveland and hissed, in London, was entirely proper as is shown by the learned judge’s opinion, which well justifies the withdrawal. A synopsis of it here follows:

There is nothing’in the article, says the judge, which reflects disparagingly upon Miss Nether-sole’s private character or which tends to subject her to public disgrace, contempt or ridicule, the case proceeding only on the claim that she had suffered injury to her business and profession. When one offers a production or performance for public exhibition, he submits it to fair and reasonable criticism, and unless the writer passes beyond the limits of such criticism his language cannot be held to be libelous. Whether or not the falsity of such a statement tends to prove express malice need not be considered here, for even though the statement as to the hissing of “The Labyrinth” in London be untrue, it cannot be considered as evidence of express malice in respect to criticism which is otherwise fair and reasonable. The plays all treat of illicit relations between the sexes. They all present situations which suggest the yielding to animal passions. The life which they represent is not according to the universally accepted standards of morality and decency of conduct. It may be that intelligent and right-minded persons may take different views as to the tendency of such plays, and as to the policy of presenting them. Some may say that the picture of the consequence of an evil life will deter people from entering upon such a life. Others may say that such a representation gives knowledge of evil and suggests thoughts which tend to wrong-doing. Still others may say if a play represents any phase of life it should be judged wholly as a work of art. There may be honest and fair criticism from either standpoint. The true test is whether the description of the plays is fairly given, and whether the opinions expressed are such as mav be reasonably entertained and expressed by an honest person. Judged by this test there can be no doubt that the criticism complained of is fair and reasonable, and the case is not oné where different minds may properly arrive at different conclusions in respect to its fairness and reasonableness.

For these and cognate reasons his honor excluded from the jury all parts of the article tc which he had called attention except for such use thereof as may be pertinent for understanding the statement respecting the hissing of “The Labyrinth” as hereinbefore quoted. Then followed a holding to the effect that the context showed that the play was so received on account of its character as described in the article, and that the statement was not privileged, if untrue.

■ This opinion makes clear the narrow margin of support there is for any recovery of damages in the case. It rests wholly on the theory that if any possible damage, however remote or slight, can be imagined as coming to the owner of property by a libel upon such property, a case is made for an inquiry of damages generally by the jury, though no special damage be alleged or proven, and although the published words do not, as found by the trial court, naturally tend to expose the person concerning whose property the same were published, to public hatred, contempt or ridicule, or deprive her of the benefits of public confidence or social intercourse. A conclusion which utterly obliterates and destroys the distinction as affecting the establishment of damages between a libel upon the person and a libel upon the property o£ such person, while, at the same time, it allows nothing by way of privilege or duty to the public.

Upon the question of actual malice, the record shows that the gentleman who was the editor of the paper and was vice-president of the Company, on the stand testified to the effect that no malice ■existed on the part of defendant, showing that neither he nor the others of the managers had any ill-will toward the plaintiff, nor did the witness know of that article before it was published. The dramatic critic, upon the stand, disclaimed any • ill-will toward the plaintiff and any intent to injure • her. He testified, also, that when he wrote the article, that relating to “The Labyrinth” as well as the other parts, he believed all to be true; that he had been told of the London incident by a man connected with the stage, and had also seen a dispatch, or cable, from London telling of the same incident. No evidence was offered in contradiction of this testimony, or to establish otherwise the charge of actual malice, and the conclusion is justified that the accusation as to actual malice failed. We suppose the rule to be well established • that while malice is implied if the publication be per se libelous, yet if not, and malice is alleged, -the charge must be supported by evidence. We have, therefore, a case where there is a published criticism of that which is the property of a person, without the presence of actual malice, and without ■proof of special damage. By force of the authorities, and upon reason, we hold that such a case presents no ground justifying a verdict in damages. To hold otherwise would be to ignore the rulé respecting libels against property shown by a long line of decisions, a few only of which have been heretofore cited.

Counsel argue that the plaintiff below was entitled to ' special consideration because she is a woman, and cite the chivalrous language of Read, J., in Malone v. Stewart, 15 Ohio, 321. That language was manly and appropriate in that kind of a case (which involved a gross slander upon a woman), but we think is out of place as applied to this case. Of course, the plaintiff below had the same right to considerate and decorous treatment as a man in'a like situation would have had and a just and reasonable award of damages if any special damage had been proven, but the matter being strictly a business enterprise she could have no superior right. The case was given to the jury in a way to permit them, with no proof of special damage, and almost without guide as to any damage, to wander at will and return such sum as imagination might conjure up, and the amount of the verdict itself, which was criticised by the trial judge himself as to amount, shows a lamentable want of comprehension of the real case submitted. It is a pregnant and significant instance of the great risk of giving to juries unlimited range in contentions of this kind. Remembering, however, that the plaintiff was present at the trial, and on the stand as a witness, it isn’t any wonder that, giving way to the charm of a talented and captivating woman, the jury inclined to reach into the till of what they doubtless considered “a soulless corporation,” and return a sum one-fifth of which would have been thought adequate had the complaining party been a man. It is no answer to say that newspapers often exceed the bounds of fairness and decency in comments upon people, and their private affairs. Every intelligent reader knows that some papers do, and cause great distress and wrong thereby, but others are scrupulous and careful. Nor can it be denied that the press owes a duty to its readers in regard to its notices of the theater and plays therein presented. The theater is, in a sense, a public institution; that is, it is a place to which the public at large is invited subject to such regulations as the manager may see fit to adop.t. As yet the press has not been generally excluded, and while its representatives are permitted, to be present and essay notice and criticism of the performances there witnessed, it is not only their privilege but their duty to give truthful accounts, commendatory when justified, deprecatory if required, and while such criticisms are fair and substantially correct, the newspaper is not only not blameworthy, but is thereby rendering a valuable service to the public It will be a sorry day when it becomes a perilous thing for a newspaper to justly characterize as demoralizing many of the plays nightly presented on the boards of our theaters at this time, and it is the duty of the courts to see that the rules of law are not so applied as to discourage just and truthful criticism.

Other errors are alleged by plaintiff in error. It is not necessary to notice all of them. One, however, may be referred to, viz: the complaint as tc misconduct of counsel for plaintiff in the closing argument. It consisted of a question put to opposite counsel. We regard the question as a mistake, but, for that matter, the counsel himself seemed to see it in that light at the time and promptly withdrew it. It is proper to add that we think the complaint trivial rather than serious.-

We are of opinion that the motion of the defendant below, at the conclusion of all the evidence to take the case from the jury and render judgment for the defendant, should have been sustained, and that it is .the duty of this court now to render the judgment that the common pleas should have rendered. Judgment of the circuit court and of the common pleas will be reversed and judgment will be entered for the plaintiff in error.

Reversed.

Davis, Price, Johnson and Donahue, JJ., c'oncur.