author: Shauck, J.

text:
    The State, ex rel. Brower, v. Graves, State Supervisor and Inspector of Elections.

      Recommendation of central committee — Exercising functions of executive committee — Imperative upon state supervisor of elections, when — Appointment to board of deputy state supervisors ' and inspectors of elections.

    When the duly elected central committee of a party, which is entitled to representation on the board of deputy supervisors of elections in its county, does not select an executive committee but itself exercises the functions of such committee, its recommendation to the state supervisor of elections of a suitable person for its representative upon such board imposes upon such state supervisor the imperative duty of appointing the person so recommended.
    (No. 14182 —
    Decided October 21, 1913.)
    In Mandamus.
    The material allegations of the petition are that the relator is a resident of the city of Dayton, having .all the qualifications of an elector; that said city is the only city in Montgomery county, which county under the law is entitled to a board of deputy state supervisors and inspectors of elections; that the Republican party of said county is entitled to two members of said board as its representatives, and that before the first day of May, 1913, one of said positions being vacant, the defendant should have appointed two members of said board to serve for four years from said date, one of whom should be a member of the Republican party; that at the primary election in said county held pursuant to law May 21, 1912, a central committee of twenty-six members, one from each ward of the city of Dayton and one from each township of the county, was chosen to represent the Republican party; that said committee was duly organized but did not select an executive committee, continuing itself to perform all the functions of an executive committee for said party in said county. More than five days prior to said first day of May, 1913, said committee recommended the relator to the defendant for appointment to said board, but the defendant though receiving said recommendation refused to make such appointment.
    The relator prays for a writ of mandamus commanding the defendant to appoint him as such member of the board for four years from May 1, 1913.
    The defendant demurs to the petition.

      Messrs: Mattern & Brumbaugh and Messrs. Matthews & Matthews, for the relator.

      Mr. Timothy S. Hogan, attorney general, and Mr. P. E. Dempsey and Mr. J. H. Secrest, of counsel, for respondent.
   Shauck, J.

The only question for consideration arises out of the allegations of the petition that the central committee of Montgomery county did not select an executive committee, but itself continued to exercise all the functions of an executive committee including the recommendation of the relator. The view urged in support of the demurrer is that the law does not require the chief supervisor and inspector of elections to regard a recommendation of this character unless it is made by an executive committee chosen by a central committee* The case arose under a statute providing that the central committee may appoint an executive committee and before a recent amendment providing that it shall make such an appointment. The pertinent provisions are that the chief supervisor shall appoint as the representatives of a party entitled to representation on the board of deputy supervisors qualified persons who may be recommended by the executive committee of that party, and that the central committee of a political party may select an executive committee. The claim that a recommendation made by the principal committee instead of by a subordinate committee, which it may or may not appoint, clearly sacrifices the substance and spirit of the scheme of legislation upon this subject to its form. It imputes to the legislature the assumption that the central committee might confer upon its creature powers which it did not itself possess — that the creature is greater than its creator.

The provisions affecting the question were embraced in the act of 1892, which created the office which the defendant now holds, and they have been in force for more than twenty years receiving in many counties of the state the interpretation of obvious propriety that if the central committee did not choose to exercise the privilege given it to appoint an executive committee, it would retain and might exercise all the functions of party representation, including authority to recommend its representative in the board of deputy supervisors of elections. Not only did this settled interpretation of the statute result from a rational view of its provisions and of its evident purpose, but it was encouraged by official information and instruction issued from the office of the defendant for the guidance of the public and subordinate election officers. Such information was issued by the defendant himself in 1911', following, as he says, the custom of his predecessors. Speaking of this particular function of a committee he says: “Where a county ■ central committee exercises full control and management of the political affairs of the county and has not conferred such authority upon an executive committee, then the central committee would be authorized to make such recommendation. But if the central committee has duly appointed an executive committee with power to act in the management and control of the political affairs of the county until the creation of a new committee, such executive committee would have authority to make such recommendation.” That this instruction was imparted by the predecessors of the defendant whom he followed in the view which it expresses does not detract from, but adds to, its significance. As he can have no interest adverse to the performance of his duties to the public, the instruction is not offered as an estoppel, but to show the uniform and established interpretation from which it is now, for the first time, proposed to depart. Certainly this cortical interpretation should not be adopted for the purpose of annulling acts already taken in obedience to a substantial view of the law followed without question for more than twenty years.

Demurrer overruled and peremptory writ allowed.

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


source: Caselaw Access Project

author: Nichols, C. J.

license: Public Domain

text:
    Dunlap, Executor, et al. v. Dunlap et al.

      Question of capacity of testa,tor — To form intention of disposing of property by will — Admission of such testimony not error, when.

    In proceedings in contest of last will and testament the question: “You may also further state whether or not he [the testator] had capacity to form a purpose and intention of disposing of his property by will” does not come within the rule of inhibition laid down by this court in case of Runyan v. Price, IS Ohio St., 1, and the admission of such testimony by trial court is not error justifying the setting aside of a verdict of a jury sustaining the validity of a last will and testament.
    (No. 13373 —
    Decided October 21, 1913.)
    Error to the Circuit Court of Harrison county.
    On the 30th of December, 1908, Samuel Dunlap, a resident of Harrison county, Ohio, died leaving a last will and testament whereby Pattison Dunlap was named both as sole legatee and devisee and as executor of the instrument.
    On August 3, 1910, John A. Dunlap and others commenced an action in contest of the will in the common pleas court of Harrison county, the ground of contest being that “the testator at the time of the execution of the paper writing was mentally incapacitated, by reason of extreme age, protracted sickness and mental decay, from making a valid will or legal distribution of his property.” In due course of time the matter was submitted to a jury and a verdict was returned sustaining the validity of the will.
    The plaintiffs below filed their motion to set aside the verdict and for a new trial.
    Among other grounds assigned in this motion was one to the effect that the verdict was against the weight of the evidence and another that the court erred in admission of testimony tendered by the proponents of the will, to which the contestants objected.
    The court overruled the motion and entered judgment on the verdict.
    Thereupon the plaintiffs below instituted proceedings in the circuit court to reverse the judgment of the court of common pleas.
    The circuit court of Harrison county reversed the trial court on the ground that error to the prejudice of the contestants had been committed by the trial court in the ruling of the court permitting W. R. Kirkpatrick and J. R. Finney, the subscribing witnesses to the will, to answer certain questions as follows:
    First, Kirkpatrick question: “You may also further state whether or not he [the testator] had capacity to .form a purpose and intention of disposing of his property by will. Answer. I think that he had.”

      Second, Finney question: “I will ask you to
    state now upon that occasion whether, in your judgment, he had sufficient mind and memory to form an intention and purpose to dispose of his property by will. Answer. At the time I signed the will I thought he was as far as I was capable of judging.”
    The circuit court found no other error in the record.
    Thereafter error was prosecuted to the supreme court to reverse the judgment of the circuit court.

      Messrs. Hollingsworth & Worley, for plaintiffs in error.

      Mr. R. H. Minteer, for defendants in error.
   Nichols, C. J.

Do these two questions, substantially alike as they are, come within the inhibition of the rule laid down by this court in the third proposition of the syllabus of the familiar case of Runyan v. Price, 15 Ohio St., 1, and if they do, was the admission of this testimony of a sufficient prejudicial nature to justify the court of review in setting aside the verdict of the jury and the judgment of the trial court?

We must answer both of these inquiries negatively.

In the case of Runyan v. Price, supra, the objectionable question was: “State what your opinion was, on the evening Bowen called upon you to witness the will, as to the sanity or insanity of William Runyan, or his capacity to make a will."

The objection to this question, as found by the court, was twofold:

1. That the inquiry should have been not what his opinion was then, but what it was at the time of trial.

2. That in so far as his opinion was asked as to the capacity of the testator to make a will, it was an invasion of the functions of the jury, since it involved a question of law and fact, and to the extent that capacity was involved in the issue, was the very question to be determined by the jury; and furthermore, the question assumed that the witness knew the degree of capacity which the law required for the performance of the act of executing a will.

We do not think the questions asked in the case now before the court are .open to the objections of the court in Runyan v. Price, supra. To ask a witness if the testator had sufficient mind and memory to form an intention and purpose to dispose of his property by will, is not equivalent to nor is it open to the same objections as is the question: “Had the testator sufficient capacity to make a will?”

The capacity to make a will is much more comprehensive than a mere capacity to form an intention and purpose to make a will. The latter is merely one of the elements necessarily present in such testamentary capacity: One might have the one and yet utterly lack the other essential features, i. e.: First, that of an understanding of the nature and extent of his property; second, to know and appreciate his family connections and their natural claims, if any, upon his bounty.

Furthermore, he might have had the “capacity,” or as the question reads, the “mind and memory,” to form an intention arid purpose to make a will and do nothing toward carrying his intention and purpose into effect. It is equivalent only to desiring and determining to make a will. One might be wholly incapacitated to make a will and yet possessed of quite sufficient mind to wish and to decide to do so. It therefore was not an invasion of the duty of the jury to ask this question in order to determine this particular phase of the testator’s mind.

The question, in so far as it relates to the time which the witness was to regard, whether it be his opinion at the time of signing the will, or at the time of testifying, is not open to the same objection raised to the question asked in Runyan v. Price, supra.

The question put to the witness Finney can fairly be said to have called for the present recollection or opinion of the witness as to the mental condition of the testator at the time of signing the instrument, although the answer he made related to the opinion he formed at that time rather than his recollection or opinion at the time of the reception of his testimony by the court of common pleas. No objection was made to the answer, nor was any motion made to exclude it because of unresponsiveness, or for any other reason.

While holding that the admission of neither of the two objectionable questions by the trial court constitute error, the court is of the opinion that if it be conceded that they are sufficiently objectional to constitute error, yet it would not be error of such substantial and prejudicial nature as to warrant the setting aside the verdict of a jury founded on otherwise legal and sufficient testimony.

The salutary and enlightened provisions of Section 11364, General Code, should serve as a powerful deterrent to all reviewing courts from reversing causes for any other reason than that the alleged error was one affecting the substantial rights of the adverse party. Applying the mandatory principles of that section it appears most clear to this court that had the two objectional questions and answers been omitted the issue involved in the controversy would not have been settled otherwise than it was.

Judgment of circuit court reversed, and that of common pleas affirmed.

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


author: By the Court.

text:
    In re Angeline E. Crist.

      Divorce — Custody of children — Jurisdiction—Guardianship—Habeas corpus.

    (No. 14329 —
    Decided October 21, 1913.)
    Application for Writ of Habeas Corpus.

      Mr. S. L. James and Mr. J. F. Moore, for petitioner.

      Mr. Owen Yost, for respondent.
   By the Court.

! Where husband and wife are divorced and tlie court of common pleas, granting the divorce also awards the custody and control of the children of the marriage to either of the parents, or to any other person, where the court finds neither of the parents a proper or suitable person to have the custody and control of children, such children become the wards of that court, and the jurisdiction of the court over their custody and control is a continuing jurisdiction and such decree for the custody and control of the minor children cannot be affected by the appointment of a guardian by a probate court, nor does any other court by a proceeding in habeas corpus acquire any jurisdiction other and further than to enforce the decree so rendered. In such case, where it is deemed to be to the best interest of the children that there should be a change of their custody, application should be made to the court rendering the original decree. / An answer to a writ of habeas corpus issued upon the application of the person to whom such custody and control was committed by the common pleas court averring that the applicant is not a suitable or proper person to have the custody and control of such children, confers upon the court issuing the writ no jurisdiction to hear and determine that question. That issue should be heard and determined in the court rendering the original decree. Hoffman v. Hoffman, 15 Ohio St., 427; Rogers v. Rogers, 51 Ohio St., 1, approved and followed.

Judgment accordingly.

Nichols, C. J., Donahue, Wanamaker and Wilkin, JJ., concur.


author: Wilkin, J.

text:
    The State of Ohio v. Tippie.

      Attempt to procure miscarriage — By use of instrument or other means — Administering non-abortive drug as anesthetic — Death of woman results from use of such drug — Party administering same guilty under Section 12412, General Code, when — Evidence admissible to show absence of criminal intent — Error of common pleas court in overruling motion for new trial — Question of weight of evidence — Question of the discharge or remanding of accused by the court of appeals.

    1. Whoever, with the intent to procure the miscarriage of a woman by the use of an instrument or other means, administers to her a non-abortive drug as an anesthetic preparatory to the use of such instrument or other means of procuring an abortion, and the woman dies in consequence of the administering of such drug before the use of instruments or other means by such person to procure such miscarriage, and it does not ap-, pear that such contemplated miscarriage is necessary to preserve her life, or that the procuring of such miscarriage was advised by two physicians to be necessary for that purpose, is guilty of a violation of the provisions of Section 12412, General Code.
    2. Under such circumstances every act done and performed in furtherance of such unlawful purpose is an integral part of the whole unlawful transaction; and the fact that death ensues before the .final act in the contemplated crime can be accomplished, is not a defense to an indictment charging a violation of this section.
    3. If it appear that a non-abortive drug is administered to a woman as an anesthetic to enable a duly authorized and practicing physician fully and carefully to examine into the woman’s actual condition for the purpose of determining if it be necessary to produce a miscarriage in order to save her life, and the woman dies from the effect of the drug so administered, and no miscarriage is performed, nor intended to be performed unless the examination disclose that it is necessary to preserve the woman’s life, no offense has been committed within the provisions of Section 12412, General Code.
    4. Evidence tending to show that no secrecy is maintained in the transaction, that a second physician is called in to administer the anesthetic, that while the woman is in a state of anesthesia the attending physician makes an examination for the purpose of determining whether the fetus is alive or dead, and upon such examination does determine that the fetus is still alive and that it is not necessary to procure a miscarriage in order to preserve the woman’s life, and having so determined, makes no use of any instrument or other means to procure a miscarriage, but immediately desists from further efforts in that direction, and directs that the woman be restored to consciousness, is proper evidence to be admitted for the purpose of showing the absence of criminal intent in administering the anesthetic.
    5. The court of appeals found that the common pleas court erred in overruling the motion of the accused for a new trial. One of the grounds of the motion for a new trial is “That the verdict is against the manifest weight of the evidence.” Therefore, this holding of the court of appeals necessarily includes the weight of the evidence and requires an affirmance of that part of the judgment of the court of appeals which reverses the judgment of the court of common pleas.
    6. Where the court of appeals found, also, that the trial court erred in overruling the motion of the accused to direct a verdict of acquittal at the close of the evidence, it was proper, upon such reversal of the judgment, to order the defendant discharged. Where, however, this court finds that the overruling of such motion was not error, but affirms the judgment of reversal for the other reason, the accused must be remanded to the custody of the trial court for further proceedings according to law.
    (No. 14066 —
    Decided October 22, 1913.)
    Error to the Court of Appeals of Franklin county. .
    The accused was indicted and convicted for administering a drug with the intention of procuring an abortion, in violation of Section 12412, General Code.
    He administered chloroform to Mrs. Nettie Engler, near the fifth month of her pregnancy, with her consent’ and at her husband’s request, after three examinations of her condition on three different days, and after she told him she had used upon herself an instrument for the purpose of producing abortion. The conditions indicated to his mind that the fetus was dead.
    His purpose was, first, to produce'a state of anesthesia, so that he might make a more satisfactory examination without pain, to her, by the use of the speculum and curette, and second, if he found that the fetus was dead, to remove it. Whether he intended to do this in order to preserve the health and probably the life of the woman, is not clear by the record. He called to his assistance a neighboring physician, and notified her husband to be present. He introduced the speculum and by means' of the curette opened the mouth of the uterus, without touching or disturbing the fetus; and then discovered that the fetus was not dead.
    He testified that he then decided “to let the woman alone and give her the benefit of the doubt.” He was packing the vagina with loose gauze, when his assistant notified him that her pulse began to be very feeble and her breathing very labored. Thereupon he immediately desisted from further operations and said “I am done,” and he and his assistant proceeded to revive her from the state of anesthesia, but she died from the effects of chloroform before her husband arrived at the house.
    The charge in the indictment is: That J. W. Tippie, * * * did administer to and cause to be taken by one Nettie Engler, she being then and there pregnant with child, a quantity of a certain poisonous drug, to-wit, about one dram of chloro-form, which, was then and there administered to her by him, with the intent then and there to procure a miscarriage of said Nettie Engler; said miscarriage not being then and there necessary to preserve her life, and then and there not having been advised by two physicians to be necessary for said purpose; in consequence of the taking of the said poisonous drug, so administered to her by him at the time and with the intent aforesaid, the said Nettie Engler then and there died.
    At the conclusion of the testimony the accused moved for a directed verdict of acquittal, which was refused. We do not find the motion in the files, but we glean from the transcript and briefs that the grounds were: (!) That the indictment charged an attempt to produce abortion by the use of chloroform, from which death resulted, but that chloroform, being a non-abortive drug, was not used with the intent alleged but to produce anesthesia only, and the intention to use an instrument or other means is not charged; and (2) the intent to remove a dead fetus by any means is not criminal but lawful. The argument is that neither of two essentials of the crime charged was proven, viz., criminal purpose nor criminal act.
    After verdict there was a motion for new trial, one ground of which was that the verdict was against the clear weight of the evidence. This motion was overruled, and judgment was entered on the verdict. The court of appeals reversed the judgment, for error in overruling both motions, and discharged the accused.

      Mr. E. B. Turner, prosecuting attorney, and Mr. Wilbur King and Mr. John G. Price, assistant prosecuting attorneys, for plaintiff in error.

      Mr. F. V. Owen, for defendant in error.
   Wilkin, J.

Section 12412, General Code, reads as follows: “Whoever, with intent to procure the miscarriage of a woman, prescribes or administers to her a medicine, drug or substance, or with like intent, uses an instrument or other means, unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose, if the woman either miscarries or dies in consequence thereof, shall be imprisoned,” etc.

It will be observed that the statute does not now require, as formerly and at common law, that the drug shall have been administered to a woman (1) “pregnant with a quick child,” nor (2) “with intent thereby to destroy such child.” This statute regards not only the life of the child, but also the life of the woman, though she be not with child in fact.

Here were two physicians, but neither their testimony nor other evidence establishes that the removal of the fetus was deemed or advised by them to be necessary to preserve the woman’s life. We have, therefore, two questions: 1. Whether the intent to remove a dead fetus is an intent to procure abortion or miscarriage, when the removal is not proven to be, nor advised by two physicians to be, necessary to preserve the mother’s life; 2. is the administering of chloroform (which-is not an abortive drug) with the intent to produce anesthesia, as a preliminary step to carrying out the intent of removing the fetus, if it be found to be dead, administering a drug with intent to procure miscarriage ?

1. We remark, first, that the evolution of this statute of Ohio seems to show that it was enacted in its present form to cover any case of procuring the premature removal or expulsion of the fetus, living or dead, with other intent than to preserve the mother’s life.

Second, the object of the statute is to prevent any operation, or use of drugs, for the purpose of producing an abortion upon a woman deemed to be pregnant, except to save her life. The reason and policy of the statute is to protect women and unborn babes from dangerous criminal practice, and to discourage secret immorality between the sexes and a vicious and craven custom amongst married pairs who wish to evade the responsibilities and burdens of rearing offspring. If physicians and surgeons may assist wives and mothers who have practiced feticide upon themselves, by giving them relief after the death of the fetus, the policy of the law will be defeated and the abortionist will have an easy way of evading detection and punishment. He will have only to instruct the woman in the first use of an instrument, and then operate upon the fetus under conditions thus produced, which indicate that it is dead, and, upon his own testimony that he believed it was dead, evade criminal liability. Or physicians may operate in pairs; one upon the request of the woman will examine in order to advise her if she is pregnant, or if the embryo be sound, and, as if by chance, give the delicate touch to the membrane; and when inflammation and the purulent discharge ensue, the second will be consulted and find the conditions that will exonerate him from crime, if he complete the operation.

Third, a comparison of the decisions of our own . state, and of other states having similar statutes, shows that the better reason, if not the preponderance of judicial opinion, is averse to such an interpretation of the law, and is in the same trend with the sentiments of the text-writers. Redfield, C. J., gives an admirable exposition of the “reason of the law” on this phase of the subject in State v. Howard, 32 Vt., 380, 399. The court of appeals erred in overruling the common pleas for following this view of the law.

2. The next question is more difficult. We have, first, to deal with a twofold intent. Primarily the intent was to produce anesthesia. This was not criminal. Secondarily there is an inchoate or suspended intent, or a contingent purpose, to produce miscarriage if the condition of the patient would require it. These comprise one intent to one purpose.

The case is not analogous to that of the burglar who breaks and enters to steal, carrying a murderous weapon in his hand and intending to kill if necessary to make his escape. The breaking is with the intent to kill, though primarily the intent is to steal and not to kill unless the killing be necessary to escape: all one unlawful purpose. But here, if the doctor was giving the chloroform with the intent to discover whether it would be necessary to operate on the fetus, for the sake of the mother’s health and life, but without any intent to operate unless the operation would be necessary to preserve her life, then he did not administer the chloroform with an unlawful intent, that is to say, with intent to do an unlawful act, but to do a lawful act if the condition of his patient required the act to be done.

On the other hand, if his purpose were to discover if the fetus was dead, and then to deliver the woman and complete the abortion, even though her life were not in danger, and if that were his fixed purpose when he gave her the chloroform, then the overt act of administering the drug was attended with the guilty intent, and when she died from the effect of the drug his crime was complete.

The accused is a physician in good and regular standing, and he seems to have testified with candor in his own defense. And he is sustained by other credible physicians of high standing and ability, so far as he proceeded in the treatment of the woman. The net result of the professional opinion is that whether it be necessary to remove the fetus to preserve the life of the mother, where the subjective and objective symptoms are as they were in this case, will depend upon a close, intimate and critical knowledge of the patient, which is to be obtained by the sort of examinations which he made. In short, he could not decide in her case whether it was necessary to operate without making the last examination, and it was proper to administer chloroform for the purpose of that examination, though ether would probably have been a safer anesthetic for her.

Now, the accused did not explicitly state that he intended to operate if the fetus were dead, even if that were not necessary to the preservation of the life of the mother. On the other hand the state failed to show, to that degree of certainty which is required in a criminal case, that he intended to cause the miscarriage without regard to the life of the woman. The testimony, on review of the whole case, shows that he did not intend to do anything unless the fetus were dead; and whether, in that event, operation would be necessary would depend on the precise, particular conditions presented to the mind of the skilled practitioner upon a critical examination. Whether, if the fetus had been dead, he would have removed it, though the life of the mother were not in danger, is left to conjecture.

In this state of the proof the court of appeals found that the evidence was not sufficient to overcome the presumption of innocence, and reversed the conviction upon that ground.

We think this judgment of the court of appeals should be, and it is, affirmed. But the order to discharge the prisoner is reversed, because he was not entitled on the record to a directed verdict of acquittal, and he is therefore remanded to the trial court for further proceedings according to law.

Judgment, as modified, affirmed.

Johnson, Donahue and Wanamaker, JJ., concur. Nichols, C. J., and Shauck, J., not participating.


text:
    The State, ex rel. Fox, v. Yeatman et al., Board of Deputy State Supervisors and Inspectors of Elections of Hamilton County. The State, ex rel. Thompson, v. Bundenthal et al., Board of Deputy State Supervisors and Inspectors of Elections of Montgomery County.

      Municipal courts — Acts (103 O. L., 279 and 3&5) extending jurisdiction of police courts in Cincinnati and Dayton — Valid as to election of judges.

    The act “providing for enlarging and extending the jurisdiction of the police court in the city of Cincinnati, and changing the name of such court to the municipal court of Cincinnati” (103 O. L., 279), and the act “providing for enlarging and extending the jurisdiction of the police court of the city of Dayton and changing the name of such court to the municipal court of Dayton” (103 O. L., 385), are valid enactments to the extent of providing for the elections of the judges of such courts,
    (Nos. 14409 and 14417 —
    Decided October 22, 1913.)
    In Mandamus.
    In the case firstly entitled the relator alleges that at a primary election held in the city of Cincinnati on September 2, 1913, he was duly nominated by the Democratic party for the office of judge of the. municipal court of Cincinnati. He further alleges all the facts necessary to entitle him to have his name printed upon the official ballot for the municipal election to be held in said city on November 4, 1913, ás si candidate for said office if the act of April 17, 1913' (103 Ó. L., 279), entitled “An act. providing for enlarging and extending the jurisdiction of the police court in the city of Cincinnati, and changing the name of such court to .the municipal court of Cincinnati,” is a valid enactment.
    By the averments of the petition in the case lastly entitled, the relator shows that he is entitled to have his name printed as a candidate for the same office upon the ballot to be voted at the municipal election to be held in the city of Dayton November
    4, 1913, if the act of April 8, 1913 (103 O. L., 385), entitled “An act providing for enlarging and extending the jurisdiction of the police court of the city of Dayton and changing the name of such court to the municipal court of Dayton,” is a valid enactment.
    In each petition it is alleged that the defendants refused to cause the tickets to be so printed, and in each there is a prayer for a peremptory writ of mandamus commanding the defendants to cause the relator’s name to be so printed upon said ballot, and in each case the defendants demur to the petition.

      Mr. Alfred Bettman, for Bernard C. Fox. •

      Messrs. Gordon, Morrill & Ginter; Mr. Timothy 5. Hogan, attorney general, and Messrs. Burch, Peters & Connolly, for Warner M. Yeatman et al.

      Messrs. McMahon & McMahon; Mr. Frank S. Breene, city solicitor, and Mr. Albert J. Dwyer, assistant city solicitor, for Chilton D. Thompson.

      Messrs. McConnaughey & Shea, for Edward W. Bundenthal et al.
   Shauck, J.

A more extended statement of the allegations of the petitions is not necessary since in each case the only question to be considered is the constitutional validity of the statutes to create the municipal courts of Cincinnati and Dayton. Though differing in some of their detailed provisions, in the respects as to which their constitutional validity is challenged, the acts are identical. They provide for the merging of the courts of justice of the peace and police courts in both of the cities named, for the election of judges thereto, and changing the name to the municipal court of the city, conferring upon it not only the jurisdiction of the courts that are merged, but further jurisdiction taken from, the court of common pleas of the county. They provide for the election and qualification of judges, the organization of the court and the fixing of salaries; providing in each case that the present judge of the police court shall be the presiding judge of the municipal court during his term of office. Naturally those who deny the validity of this legislation recur to the requirements of the constitution with respect to uniformity of legislation upon subjects of a general nature. As naturally those who maintain the validity of the legislation recur to The State, ex rel. Attorney General, v. Bloch, 65 Ohio St., 370. While the doctrine of that case has not met with universal approval, it is now to be taken as authority for all that it decides. That case and contemporaneous and subsequent legislation creating a court of insolvency in Hamilton county, municipal courts in other cities, and conferring jurisdiction in divorce and in the partition of lands upon probate courts in several named counties of the state, have recognized in the legislature as large a power under the constitutional authority to create other courts inferior to the supreme court as has been exercised in the present cases. In all of those cases the jurisdiction of the court of common pleas in the several counties was invaded as it is by the terms of the statutes now under consideration'.

A further objection is that by the terms of these statutes a new office is created, that is, the office of presiding judge of the municipal courts in the cities named, and that the legislature by designating the present judge of the police court to be the presiding judge has practically exercised the power of appointment. But upon considerations which we do not think it necessary to review here, in State, ex rel., v. Hunt, 84 Ohio St., 143, it is decided that the supervising judge does not by virtue of that distinction hold an office additional to the office of judge of the court of common pleas, and by parity of reasoning the same conclusion must be reached in these cases.

The validity of the acts is further challenged upon the ground that they are in contravention of the provisions of Article XVIII of the Constitution as amended in September, 1912. In support of that conclusion it is urged upon our attention that all laws affecting cities must now be general laws, else they are subject to the home-rule provisions of the article referred to. But the force of this objection disappears when it is remembered that at the time of the decision of State, ex rel., v. Bloch, and the passage of the other statutes referred to, laws of uniform operation throughout the state were required upon all subjects of a general nature and that the provisions of Article XVIII as amended have no relation to the judicial organization of the state, but only to the government of municipal corporations. It seems quite clear that special acts of the character of these may stand against a provision as to general laws for the government of corporations quite as firmly as against the constitutional provisions formerly in force.

In the light of the cases cited we see no valid objection to those provisions of~ these acts which relate to the organization and jurisdiction of the municipal courts in the cities named. If there are invalid provisions with respect to salaries, they do not require consideration here.

Peremptory writs allowed.

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


text:
    Eshelman v. Van Nover.

      Conditional order of revivor of dormant judgment — Revived judgment subject to right of judgment debtor, when.

    Upon the allowance and entry of a conditional order of revivor of a dormant judgment, the judgment is then relieved of its dormancy and has all the attributes of a living judgment, subject, however, to the right of the judgment debtor to have the order of revivor set aside if sufficient cause therefor be shown within the time fixed in the order served upon him.
    (No. 13412 —
    Decided October 28, 1913.)
    Error to the Circuit Court of Wayne county.

      Mr. 0. D. Eshelman and Mr. A. D. Metz, for plaintiff in error.

      Mr. John McSweeney and Mr. M. L. Spooner, for defendant in error.
   By the Court.

Defendant in error, on the 25th day of January, 1908, filed a motion in the common pleas court of Wayne county against plaintiff in error for the allowance of a conditional order of revivor of a judgment rendered in his favor against plaintiff in error on the 28th day of October, 1891, and upon which no execution had been sued out since the 2d day of September, 1896. On the same day the motion was filed, the court granted a conditional order of revivor, finding that the judgment had become dormant and that there was due thereon the amount claimed in the motion, and plaintiff in error was ordered to show cause, on or before the 29th day of February, 1908, why the judgment should not be revived, and in default of such showing, said judgment was to stand revived. Summons was issued on this conditional order and was served on plaintiff in error on the 5th day of February, 1908. . .

On the 27th day of January, 1908, defendant in error caused an execution to issue to the sheriff of , Cuyahoga county, and on January 30, 1908, a levy was made upon the real estate of plaintiff in error located in Cleveland. On March 11, 1908, the cause was heard on the motion for a conditional revivor, the answer thereto and the evidence, and there was a finding by the court that plaintiff in error had failed to show cause why the judgment should not stand revived and that the judgment was wholly unsatisfied and had become dormant. It was ordered that the motion of defendant in error be granted and that the judgment stand revived in the amount claimed, and the cause was continued as to and for a hearing on the fourth defense in the answer, in this defense it being alleged that the levy on the real estate of plaintiff in error, made on January 30, 1908, was illegal, void and of no effect and was issued on a dormant judgment, for which reason the court was asked to set aside the levy.

A petition was then filed by defendant in error in the common pleas court of Cuyahoga county against plaintiff in error and others to marshal liens and sell the lands upon which execution had been levied on January 30, 1908. Plaintiff in error filed an answer in that case, in which he claimed that the execution of January 27, 1908, was void for the reason that the same was issued upon a then dormant judgment and that the levy thereof did not create a lien in favor of defendant in error. . The court found in favor of plaintiff in error, and defendant in error herein prosecuted error to the circuit court and that court reversed the judgment of the common pleas court, holding that the execution of January 27, 1908, was merely invalid and could be set aside only by motion in the court from which it issued.

Thereupon, upon application of plaintiff in error, the cause in the common pleas court of Wayne county was reinstated and redocketed. Upon motion of defendant in error, the fourth defense, to which reference has been made, was dismissed. Plaintiff in error, by leave of the court, then filed a motion to set aside the execution dated January-27, 1908, and to vacate the levy thereof. Upon the hearing of this motion, evidence was submitted and the court made a finding, reciting the different steps theretofore taken in the case and in- the proceeding to marshal liens in Cuyahoga county. The court found, as its conclusion of law, that the judgment was dormant at the time the execution was issued thereon and that the execution was void and of no force and that the levy thereof was illegal. The motion was sustained, the execution set aside and the levy vacated.

The circuit court reversed the judgment of the common pleas court in sustaining the motion and held that the execution on the judgment, after the conditional order of revivor had been allowed and entered, was a valid execution and was supported by a living judgment. Plaintiff in error is here asking for a reversal of the judgment of the circuit court and an affirmance of that of the court of common pleas.

Defendant in error brought his proceeding to revive his judgment under favor of Section 5367, Revised Statutes, now Sections 11645, 11646 and 11647, General Code. The conditional order of revivor was made on motion, and after the granting and entry of this order, but before notice was served upon the defendant, an execution was issued and a levy made. The statute under which defendant in error proceeded provides that after the conditional order is made, “if sufficient cause be not shown to the contrary, the judgment shall stand revived, and the finding be subject to execution for the amount which the court finds to be due añd unsatisfied thereon. The lien of the judgment fpr the amount due shall be revived and shall operate from the time of the entry of the conditional Order or the filing of the petition.”

The case of Smith v. Hogg et al., 52 Ohio St., 527, is relied upon by counsel for plaintiff in error in support of his contention, but it is not decisive of the question presented here. The court held that a levy was necessary before the revived judgment could operate as a lien upon land acquired after the dormancy of the judgment and that the lien dated vfrom the levy and not from the revivor of the judgment, but there is no holding that the judgment creditor was required to wait until there was an absolute revivor before he could cause an execution to issue.

As we view the statute under consideration, the conditional order of revivor relieves the judgment of its dormancy, subject to the right of the judgment debtor to show cause why it should not stand revived. The language used — “stand revived”— is, we think, significant and refers to a judgment which has already been revived. Nothing further remains to be done on the part of the judgment creditor after the conditional order is made — the burden of setting aside the order being placed, by the provisions of the statute, upon the debtor. When the conditional order is granted, the judgment is then, upon a condition subsequent however, restored to all its former force and efifect and is available to its owner as an original judgment. If the right of the judgment creditor to cause execution to issue be postponed until the revivor becomes absolute and final, it would tend to defeat the purposes the statute was intended to accomplish.

For the reasons we have given, the common pleas court erred in sustaining the motion to set aside the execution and to vacate the levy, and the judgment of the circuit court in reversing that judgment is affirmed.

Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Donai-iue, Wanamaicer, Newman and Wilkin, JJ., concur.


author: Newman, J.

text:
    Bechtol v. Ewing, Admr.

      Compensation for services rendered by a wife — Outside of home of her husband — Is recoverable in her own name, when— Consent of husband, to such services, not necessary, when.

    1. Compensation for services rendered by a wife outside of the home of her husband, with whom she is living, such services not being in the discharge of her household or domestic duties and not in interference therewith, is recoverable in an action therefor in her own name and for her own use.
    2. In such an action by the wife, it is not necessary, in order that she recover, that it be shown that the services were rendered' with the consent of her husband and that there was an understanding between them that the same should be on her own account and that she should receive the compensation therefor.
    (No. 13332 —
    Decided November 11, 1913.)
    Error to the Circuit Court of Knox county.

      From an agreed statement of facts filed in this court, it appears that the plaintiff in error, Anna Elizabeth Bechtol, is now, and was from the 1st day of February, 1906, until the 16th day of October, 1908, a married woman, living with her husband on the Gambier road, east of the city of Mt. Vernon, Ohio; that defendant in error’s decedent, Margaret Bechtol, for many years prior to her death, which occurred on the 16th day of October, 1908, resided on said Gambier road, in her own house, a short distance east of plaintiff in error; that said Margaret Bechtol’s family consisted of herself, an unmarried daughter, a widowed daughter and a grandson; that during the last five years of Margaret Bechtol’s life she was an invalid, suffering with gangrene of the foot, and required a great amount of nursing, etc.; that Simon Bechtol, who is the husband of plaintiff in error, Anna Elizabeth Bechtol, is a son of the decedent, Margaret Bechtol; that the services which plaintiff in error alleges she performed for the said Margaret Bechtol from February 1, 1906,- to October 16, 1908, and for which she recovered a judgment.of $200 in the common pleas court of Knox county, were performed at the home of the said Margaret Bechtol and away from the home of plaintiff in error.
    The action was commenced in the common pleas court of Knox county, and the judgment rendered in that court in favor of plaintiff in error was reversed by the circuit court upon the ground, stated in its journal entry, that the record failed to show that the services rendered by plaintiff in error for Margaret Bechtol were rendered by her with the consent of her husband and with an understanding between plaintiff in error and her husband that the services rendered should be on her own account and that she should receive the compensation therefor, it appearing from the record and admissions of counsel that plaintiff in error was a married woman, living with her husband as his wife at the time such services were rendered.
    It does not appear from the record that the circuit court passed upon any other of the assignments of error contained in the petition in error in that court, among which was the assignment that the common pleas court erred in overruling the motion of defendant in error herein for a new trial, one of the grounds in the motion being that the verdict was against the weight of the evidence.
    Plaintiff in error is here seeking a reversal of the judgment of the circuit court and an affirmance of that of the court of common pleas.

      Mr. Columbus Ewalt, for plaintiff in error.

      Messrs. Owen & Carr, for defendant in error.
   Newman, J.

It is suggested by counsel for defendant in error that the circuit court did not pass on all the errors alleged in the petition in error in that court, but reversed the case upon the one ground set out in its entry, and that, therefore, a reversal by this court would require the case to be' remanded to the circuit court to pass upon the other alleged errors, as was done in the case of Kramer v. The Toledo & Ohio Central Rd. Co., 53 Ohio St., 436. There it was held that the provisions of Section 6709, Revised Statutes, now Section 12248, General Code, peremptorily require the circuit court to pass upon all the errors assigned. In that case, the judgment of the lower court was reversed upon a ground specifically stated by the circuit court in its entry, and the record affirmatively showed that none of the other assignments of error was passed upon by that court. This court rightly remanded the cause to the circuit court, with instruction to pass upon all the errors assigned. This rule does not apply to the case at bar, for it does not appear affirmatively from the record that all the assignments of error were not considered.

It must be presumed that the circuit court passes upon all assignments in a petition in error prosecuted before it, and that when it reverses a judgment of the court of common pleas it holds all assignments of error to be not well taken, except such as in its mandate may be stated as the basis of its judgment of reversal. This was the holding in the case of Weaver v. C.,S. & H. Ry. Co., 76 Ohio St., 164, and, applying it to the case under consideration here, it follows that the circuit court passed upon all the assignments of error and found but one well taken — the one stated in the entry.

It is conceded by plaintiff in error that the record fails to disclose the facts mentioned by the circuit court in its entry, but it is claimed that the establishment of these facts was not necessary to entitle plaintiff in error to a recovery.

The circuit court reversed the judgment of the common pleas court on authority of Spayne v. King, 4 N. P., 299, affirmed by this court, without opinion, 55 Ohio St., 696. C. J. Spayne was a tenant on the farm of King, who employed Jenkins to labor as hand on the farm and sent him into the family of Spayne to board. Hester C. Spayne, the wife of C. J. Spayne, brought an action against King for the board furnished Jenkins. The first trial of the cause resulted in a verdict for plaintiff, which was set aside, however, and on a second trial there was a recovery by the defendant and a judgment in his favor. This judgment was reversed by the circuit court, which held that the common pleas court erred in charging that plaintiff below, in order that she recover, must prove that Jenkins was in the employ of the defendant during the time she boarded him, that she rendered the services charged for under a special contract with the defendant and.that he agreed to pay her therefor, and that said services were rendered by plaintiff with the consent of her husband and with an understanding between them that the services rendered should be on her own account and that she should receive the compensation therefor.

This court reversed the judgment of the circuit court and affirmed the judgment of the common pleas court, the only question here presented being whether the common pleas court committed error in its charge. We are in full accord with the law announced by the common pleas court, unquestionably applicable to the case then under consideration. But a different state of facts is presented here. The services were not rendered to the decedent by the plaintiff at the home of her husband and were not in the discharge of her domestic duties.

The common-law disability of a married woman in Ohio is abrogated by Section 7999, General Code, where it is provided that a husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might, if unmarried, subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other.

The courts of New York, in considering a statute similar to the Ohio statute, hold that its provisions do not absolve the wife from the duty of rendering to her husband such services in his household as are commonly expected of her, and this court has held that at common law a husband has a right of action against one who wrongfully or through negligence injures his wife to recover for the loss of her services and for his necessary medical, surgical and other expenses in healing her injuries, and that this right is not abrogated or affected by the legislation embraced in Sections 7995 to 8004, General Code. B. & O. Rd. Co. v. Glenn, 66 Ohio St., 395.

The duty of supporting a wife out of his property or by his labor is enjoined upon the husband by the provisions of Section 7999, and the expenses incurred by him in the performance of this legal duty to support her are recoverable in an action for damages on account of injuries sustained by the wife, and there can be a recovery of damages for loss of services to which the husband is legally entitled.

But the services for which a recovery can be had, on account of loss, are confined to those of a domestic nature, and cannot be extended to include those rendered by the wife outside of the household. In the case before us the services rendered by the wife were not rendered in the household, but at the home of the mother of the husband.

There is a statute in Ohio which makes it an offense for an adult, who is possessed of or able to earn means sufficient therefor, to neglect or refuse to support a parent with necessary shelter, food, care and clothing, in case the parent is destitute of means of subsistence and unable to support himself. It is said that had defendant’s decedent been in need of care and attention, and had she been unable to pay for it, plaintiff’s husband would have been legally bound to give her such care as she might require. This is true, and while the husband would have been legally bound to furnish such care and attention to his mother, under the conditions mentioned, such duty would not have devolved, legally, upon his wife as a part of her domestic duties.

The services rendered by plaintiff in error were rendered at the special instance and request of the decedent, and the decedent thereby obligated herself to pay for such services. It was an arrangement entered into by the wife in her own right, and this she could do under the provisions of Section 7999. It does not appear that the services rendered by the wife in this case in any way interfered with her domestic duties or with the services to which her husband was legally entitled, and we do not see upon what theory consent on the part of the husband was required. Neither was there the necessity of an understanding between plaintiff and her husband that the services rendered should be rendered on her own account and that she should receive the compensation therefor.

To hold that the consent of the husband and an understanding between him and his wife that services rendered by the latter outside of her domestic and household duties should be on her own account are necessary before' she can recover compensation for such services, would nullify the plain' provisions of Section 7999.

We conclude that the circuit court erred in requiring the establishment of the facts to which we have referred; they were wholly unnecessary in this case.

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

Judgment of circuit court reversed and that of common pleas court affirmed.

Nichols, C. J., Shaucic, Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


text:
    Kleybolte v. Buffon, a Minor.

      Action under Sections 3838 and 3839, General Code — For injuries inflicted by a dog — Exemplary damages not recoverable — Question of evidence.

    1. In an action brought under Section 4212-2, Revised Statutes (General Code, Sections 5838 and 5839), for injuries inflicted by a dog, punitive pr exemplary damages are not recoverable.
    2. In such an action, evidence tending to show the dog had bitten another person prior to the time that the plaintiff was bitten, and that defendant had knowledge thereof, is inadmissible.
    (No. 13598 —
    Decided November 11, 1913.)
    Error to the Circuit Court of Hamilton county.
    Defendant in error, in his petition filed in the common pleas court of Hamilton county, averred that on or about the 9th day of October, 1909, plaintiff in error herein was the'owner of a dog which “he wrongfully and negligently allowed to go at large without being properly secured;” that on said date the dog attacked, bit and wounded defendant in error, by reason whereof he suffered a nervous shock and pain of body, became and continued sick and lame for four weeks and was under a doctor’s care for three weeks; that he was employed during his school vacation as cash boy, and by reason of his injury was unable to work for a period of four weeks, whereby he sustained a loss of twelve dollars and incurred an expense of doctor’s bill of nine dollars and nursing twenty dollars in and about getting cured, to his damage five hundred and forty-one dollars, for which amount he asked judgment and that the court order the dog to be killed according to law.

      • An answer was filed by plaintiff in error, in which he admitted that Clifford D. Buffon was a minor arid that Robert W. Buffon was his father and next friend and then denied each and every other allegation in the petition.
    The case was tried to a jury, and evidence was offered tending to prove that the dog of plaintiff in error had previously bitten another person, of which facts plaintiff in error had knowledge. This evidence was admitted over the objection of plaintiff in error.
    At the request of the defendant in error, the court charged the jury before argument that any person who owns or harbors a dog that injures a person is liable to the person injured to the full amount of the damages done, and in an action for damages resulting from the bite of a dog, it is not necessary for the plaintiff to allege and prove that the owner or harborer of the dog had knowledge of its vicious propensities.
    The court, in its general charge, stated that the issues in the case for the jury to determine were whether or not the plaintiff was bitten by a dog which was owned by the defendant, and, secondly, if he were bitten by a dog owned by him, what was the amount of his damages. These, the court stated, were the only questions for determination.
    The court, however, after charging generally on the question of damages, used this language :
    “In considering the question of damages you will also take into consideration all the evidence tending to show that the defendant’s dog had prior to the time of the alleged biting of plaintiff bitten any other person or persons, and that knowledge of this came to the defendant prior to the time when the plaintiff alleges he was bitten, as matters in aggravation or increasing plaintiff’s damages. Because if the dog in question, to the knowledge of the defendant, had bitten another person, or other persons, before the plaintiff was bitten, then the failure of the defendant under such circumstances to restrain the dog or to dispose of the dog is a circumstance tending to show gross negligence on the part of the defendant in allowing the dog to run at large and unmuzzled with such knowledge on his part, and would be evidence tending to show wanton disregard of the safety of others, of other persons, and if the evidence does show this state of facts you would be warranted in adding to the damages which the plaintiff might ordinarily be entitled to recover additional damages, because the conduct of the defendant under such circumstances would aggravate or tend to increase the damages of the plaintiff.”
    Plaintiff in error took an exception to the charge of the court. The jury returned a verdict in favor of defendant in error herein in the sum of $366.66, a motion for a new trial was overruled and judgment was rendered on the verdict, which was affirmed by the circuit court. Plaintiff in error is seeking a reversal of the judgments of the lower courts, and insists that the common pleas court erred in the admission of the evidence to which reference has been made, and that the charge of the court, permitting the recovery of exemplary or punitive damages, was erroneous.

      Messrs. Kramer & Bettman, for plaintiff in error.

      Mr. J. A. Rudel and Mr. L. H. Pummill, for defendant in error.
   Newman, J.

In an action against the owner by one who is bitten by a dog, it is necessary, under the rule of the common law, to aver and prove knowledge, on the part of the owner, of the vicious propensities of his dog. The gist of the action is the keeping of the dog in a negligent manner after knowledge of his vicious propensities. Hayes v. Smith, 62 Ohio St., 161.

It is to be observed that m the case before us there is no averment in the petition fhat the dog was vicious or that the owner had knowledge of his vicious propensities, or, having such knowledge, he kept the dog in a negligent manner. There is a formal charge of negligence in the petition, but there is no averment of scienter, and in the absence of such an averment the pleader does not conform to the rule prescribed by common law.

The right of action, then, must have been predicated upon the statute in force at the time the injuries were received.

Section 4212-2, Revised Statutes, the provisions of which section are now in Sections 5838 and 5839, General Code, was as follows:

“Any animal of the dog kind that chases, worries, injures, or kills any sheep, lamb, goat, kid, domestic fowl, animal or person, may be killed by any person, at any time or place. And the owner, owners or harborers of any animal of the dog kind 'that' chases, worries, injures, or kills any sheep, lamb, goat, kid, animal or person, shall be jointly and severally liable to any person so damaged to the full amount of the injury done; and the court or'justice, before whom the recovery is had for any such injury shall declare the animal found to have occasioned the injury to be a common nuisance and order the defendant to kill or cause to be killed such animal within twenty-four hours after the rendition of the judgment; or the court or justice may order any constable or marshal or sheriff to kill such animal.”

In the prayer of the petition, defendant in error asked that the court order the dog to be killed according to law, and in the trial of the cause the action was treated by defendant in error himself as a statutory one, for the- special charges requested by him and given by the court clearly indicate that he was relying upon the statute — he asked the court to charge before argument, and the court did charge, that the mere ownership of a dog which inflicted an injury rendered the owner liable and that knowledge of its vicious propensities was unnecessary — and the court, in its general charge, took the same view of the matter when it charged that the only two questions for determination were whether plaintiff was bitten by the dog owned by the defendant, and, if so, what was the amount of the damages.

The question, then, for our determination is whether this was a case for exemplary or punitive damages. The court charged that in considering the question of damages the jury was to take into consideration the evidence - tending to show that the dog had, prior to the time of the alleged biting of plaintiff, bitten any other person or persons, and that knowledge of this came to the defendant prior to the time when the plaintiff alleged he was bitten, as matters in aggravation or increasing plaintiff’s damages. The court further charged that if the evidence showed that state of facts, the jury ■would be warranted in adding to the damages which plaintiff might ordinarily be entitled to recover additional damages, because the conduct of the defendant under such circumstances would aggravate or tend to increase the damages of the plaintiff.

The statute which we have quoted is in derogation of the common law, in that it dispenses with scienter. The court cannot read into it anything that does not come within the clear meaning of the language used, and the statute should not be given force beyond its plain terms. It is provided that the owner of the dog which inflicts the injury shall be liable to the person damaged to the full amount of the injury done. If it had been intended that the injured party should have the right to recover exemplary or punitive damages, or any damages other than actual damages, the legislature would have made such a provision.

The statute imposes an absolute liability on the owner of the dog, and the averment and proof of scienter are unnecessary. The owner is liable regardless of his conduct in the keeping of the dog. Under the statute, the conduct of his property renders him liable, and his own negligence in the matter is wholly immaterial.

The general rule is that in private actions the injured party is to be made whole. . There are cases, however, in which there can be a recovery of more than the damages actually sustained by the injured party. In United Power Co. v. Matheny, 81 Ohio St., 204, the court refers to the doctrine announced in Roberts v. Mason, 10 Ohio St., 277, and say that it is the settled law in Ohio that in cases involving the elements of fraud, malice or insult, the jury may award exemplary or punitive damages in addition to damages merely compensatory. But in the case at bar, none of these elements were pleaded, nor was there an averment that there was wilfulness, wantonness or recklessness on the part of the owner. The right of recovery was based upon the provisions of Section 4212-2. The liability of the plaintiff in error was imposed upon him by reason of his ownership of the dog, and the damages recoverable were the full amount of the injury done — actual damage sustained — and the trial court erred in permitting the recovery of punitive, or exemplary damages, designated additional damages in its charge.

The trial court should have limited the inquiry to the ownership of the dog, the injury inflicted and the actual damages sustained, and the admission of evidence tending to show that the dog in question had bitten another person prior to the time of the alleged biting of defendant in error and that plaintiff in error had knowledge thereof' was inadmissible, as it did not relate to any issue made in the case.

One of the controlling questions in the case was the question of damages. The jury was misdirected in reference to this, as the court erred' in charging that defendant in error herein could recover exemplary or punitive damages, and inasmuch as it does not appear affirmatively that punitive or exemplary damages were not included in the verdict, we think the error in the charge was prejudicial, and for this error and for error in the admission of the evidence to which we have referred, the judgments of the lower courts are reversed and the cause remanded to the common pleas court for a new trial.

Judgments of circuit and common pleas courts reversed.

Shauck, Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


author: Johnson, J.

text:
    Quigley, Guardian, v. The Toledo Railways & Light Company.

      Street railway company receiving franchise — Subject to certain obligations to the public — Cannot evade obligations by lease to another company, zvhen — Such owning company liable for injuries —Section 3443-rf, Revised Statutes.

    1. A street railway company receives its franchise to operate a street railroad subject to certain well-defined duties to the public. It cannot relieve itself from these obligations by a lease or traffic arrangement by which it permits another company to make joint use of its tracks, except by legislative enactment authorizing such lease or arrangement with an express provision exempting it from liability for the acts of its licensee.
    2. When such owning company makes an agreement with another company, under authority granted by Section 3443-17, Revised Statutes, for the joint use of its tracks, it is liable for injuries caused by the actionable negligence of its licensee thereon. The statute does not provide exemption from such liability and as against the public it will not be implied.
    (No. 14097 —
    Decided November 11, 1913.)

      Error to the Court of Appeals of Lucas county.
    The plaintiff, guardian of Sylvester Fackelmann, a boy who was nine years old in April, 1906, brought suit in the common pleas of Lucas against The Toledo Railways & Light Company to recover for the loss of one leg and half of his other foot by being run over by a Toledo & Western interurban car on Cherry street in Toledo in December, 1906.
    Plaintiff recovered a judgment in the common pleas. The court of appeals reversed this judgment and entered judgment for the defendant in error. This proceeding is brought to reverse the judgment of the court of appeals and affirm that of the common pleas.
    The accident happened while the plaintiff’s ward was playing with other boys on Cherry street and had started across Cherry street in front of an eastbound car belonging to the defendant, which had just started, after stopping to take on a. passenger at Yates street. Some of the boys, among them plaintiff’s ward, ran behind the car of the defendant just as an interurban car belonging to The Toledo & Western Railway Company was going west, and in attempting to cross the track upon which the latter car was, the boy was struck and injured as stated. There were allegations of negligence in the running of said car in a number of respects.
    The defendant in its answer admitted that it was a corporation owning and operating lines of street railway in the city of Toledo; that The Toledo & Western Railway Company was a corporation organized under the laws of Ohio, and did on the day of the accident operate a line of railway by means-of electricity in Lucas county, Ohio; that the defendant owned a line of street railway upon and. along Cherry street in Toledo; that a car of The Toledo & Western Railway Company was upon said track on said Cherry street; that said Fackelmann ran in front of said car of The Toledo & Western Railway Company and was struck thereby and injured. Defendant denied that the car of The Toledo & Western Railway Company was under the defendant’s direction or control in any manner or form at the time said Fackelmann was struck, and denied each and every other allegation in the plaintiff’s petition.
    The answer further alleged that the accident was caused by the negligence of Sylvester A. Fackelmann and that his carelessness and negligence directly contributed to the injury complained of.
    The plaintiff in her reply denied the allegations of contributory negligence set out in the answer.

      Mr. John Q. Adams and Mr. Orville S. Brumback, for plaintiff in error.

      Messrs. King, Tracy, Chapman & Welles, for defendant in error.
   Johnson, J.

The Toledo & Western Railway Company used the tracks of the defendant under a traffic agreement or lease which was introduced in evidence. It recites in the preamble that “both parties desire to enter into a mutual arrangement whereby their lines may connect on said Phillips avenue * * * so that traffic over second party’s road may reach the business portion of Toledo over said first party’s lines.” It is further provided that the Toledo & Western cars shall, when on the tracks of the defendant, be operated and run in accordance with the rules and regulations and at the rates of speed which are or may hereafter be provided or required by the defendant for the conduct, operation and management of the Toledo & Western company’s cars over said route. The contract further provided that the Toledo & Western company should not permit any person to operate its cars within the city of Toledo who was unsatisfactory to the defendant, and that no car of the Toledo & Western company should enter on the tracks of the defendant which was operated by any person who was unsatisfactory to the defendant, after notice to the Toledo & Western company. It also provided that the defendant should receive three and one-half cents for each passenger carried by the Toledo & Western company over defendant’s lines and a reasonable compensation for mail, baggage, etc., and for the keeping of accurate books of account. It also contained the provision that “Said first party shall have the right at any time, and from time to time, as it shall deem proper, to put its own employes and servants in charge of second party’s cars when they enter upon and while on first party’s lines, and to run and operate the same while on said lines in the city of Toledo.”

In the absence of statutory authority, a railroad company cannot lease or license the use of its franchises to operate its railroad to another company and thereby become exempt from liability for torts committed by the lessee or licensee in the operation of cars over the lessor’s tracks. This is conceded by the defendant in error. But it is contended that where the lease or contract is made under legislative authority, the legislative grant of the right to make the contract by implication discharges the lessor company for torts committed by the lessee in the operation of its trains on the lessor’s road. Authority had been conferred upon these companies to enter into a leasing contract by Section 3443-11, Revised Statutes, and Section 3443-17, Revised Statutes, viz.:

“Such companies shall have power to lease, purchase or make traffic arrangements with any other street railroad company as to so much of its tracks and other property as may be necessary or desirable to enable them to enter or pass through any city or village, upon the same terms and conditions applicable to other street railroads. And any existing street railroad company owning or operating a street railroad shall receive the cars, freight, packages or passengers of any other road, upon the same terms and conditions as they carry for the general public.
“Whenever any railway company is incorporated and organized under the laws of this state for the purpose of building, acquiring, owning, leasing, operating and maintaining a railroad or railroads to be operated by electricity or other motive power from one municipal corporation or point in this state, to any other municipal corporation, municipal corporations, or point in this state, it shall have an authority to make an arrangement or agreement with any street railway company or companies owning or operating any street railway or railways in any such municipal corporation or corporations, and said street railway company or companies shall have authority to make and enter into such arrangement or agreement with said railway company, whereby the passenger cars of such railway company may be run and propelled over and along the track or tracks of such street railway company or companies, for such compensation and upon such terms as may be agreed upon in the same manner, upon the same conditions and for the same length of time as the cars owned or operated by said street railway company or companies are operated in such municipal corporation or corporations. The said cars of said railway company shall, while they are running and being operated over and along the track or tracks of such street railway company or companies in any such municipal corporation, be entitled to all the privileges and subject to all the obligations enjoyed and imposed by and upon the cars of such street railway company or companies owning or operating its cars in any such municipal corporation, and shall be operated only by the same motive power with which the cars of such street railway company or companies are or may be operated. Such arrangement and agreement, when authorized by not less than two-thirds in amount of the stockholders of each company proposing to enter into such arrangement and agreement, ratified by a majority of the directors and executed by the proper officers thereof, shall give to such railway company full authority to operate its said cars on the tracks of said street railway company or companies in such municipal corporation or municipal corporations. Provided that it shall not be necessary for such railway company, in case it uses in any such municipal corporation or municipal corporations, only the tracks of a street railway company or companies owning or operating a street railway or railways within such municipal corporation or municipal corporations' to obtain any additional grant, franchise or right, except by said arrangement or agreement with said street railway company or companies.- Provided further, that the fare charged by said railway company for transporting passengers within the municipal corporation or municipal corporations, shall not be greater than that fixed in the franchise or franchises held or owned by such street railway company or companies; and where there is a public park or cemetery on the line of such railway and within one mile of, and owned by, such municipal corporation, such company shall for such fare so transport passengers to and from said park or cemetery the same as though either was within the limits of such corporation.”

These statutes do not expressly exempt the lessor company from liability for negligence by the lessee company under the circumstances stated, nor make any reference to the subject, but it is insisted that it must have been the legislative intent, when it authorized the making of the contract without reservation of liability, that the lessee alone should be answerable for its torts.

Our attention is called to some decisions in support of this view, among them Moorehead v. United Railways Co., 203 Mo., 121, which is said to be the leading case, and Gwathney v. The Little Miami Railroad Co., 12 Ohio St., 93. In the former case the United Railways Company transferred to The Transit Company of St. Louis, not only the right to operate its railways for the period of forty years, but every franchise held by it, except the franchise to be a corporation and certain real and personal properties. The Transit Company bound itself to operate the railroads and keep them in repair. ' All •of this was done under authority of law. The court say: “We remark emphatically, that as the legislature granted street railway companies power to dispose of their franchise to be a corporation, it could never have been the intention to hold such companies responsible for the acts of a company acquiring the franchises. When a company disposes of its right to be a corporation, it practically passes out of existence, and cannot be held responsible in any legal method which occurs to us. Moreover, a company is authorized by said lease or other lawful contract, to dispose of all its property, which shows that the lawmaking body did not expect it to still stand responsible for the acts of the vendee; for how could it be held responsible if all its property was gone?”

In Gwathney v. The Little Miami Rd. Co., supra, The Little Miami Railroad Company, by a verbal agreement with The D., X. & B. Railroad Company, gave to the latter the right to construct a track on the side of thé defendant’s roadbed, for the purpose of connecting the road of the D., X. & B. with the Little Miami road. The connecting track passed over a bridge previously constructed by the L. M. road for its track, which foot passengers had been permitted to use for the purpose of transit. The plaintiff, in passing on foot over the bridge at night, fell through the same between the rails of the connecting track by reason of its imperfect covering. It was held that if the nuisance complained of was created solely by The D., X. & B. Company in the construction of said connecting track, and said company had the sole ownership, possession and use of said track, the contract between the two companies giving the defendant no power or control in the construction or use thereof, the defendant could not be held liable for the plaintiff’s injury, although the defendant may have had a reversionary interest in the premises subject to the easement of The D., X. & B. Company.

The case we have here presents a very different question. The defendant here was not authorised to and did not turn over to the lessee the exclusive use, possession and control of its track, but, as appears from the contract, it entered into a traffic arrangement by which it was to be a joint user of the tracks of the defendant company, and for such use as was made of its tracks by the Toledo & Western company the defendant was to receive earnings from time to time in accordance with the extent of the use.

The lease by its terms enabled the defendant to put its own employes and servants in charge of the Toledo & Western cars, at any time it might “deem proper,” when they, entered upon its lines, and to operate them while on the lines in the city of Toledo. The whole contract disclosed an intention and agreement of the parties that the defendant, should constantly, exercise a supervisory observation of the operation by the Toledo & Western company, of its cars oyer the defendant’s lines. The use of thp.se lines was. thus clearly a joint use, subject to such right of supervision and control in the defendant. The defendant by the terms of the contract occupied such a position as enabled it to perform the duties to the public, which it had assumed, in consideration of the powers and privileges granted to it when it received its franchise. The case is at once distinguished, therefore, from that class of cases in which a company, which is the owner of a track, makes a contract by which it grants the right to another company to use the track exclusively for the operation of its trains and cars thereon. As said in 1 Elliott on Railroads (2 ed.), Section 470: “The fact that exclusive control is not transferred to the lessee is an influential factor. * * * If the lessor company does, retain control its duty is to exercise that control as the law requires.” A kindred distinction is pointed out in The Maumee Rys. & Light Co. v. Montgomery, 81 Ohio St., 426, in which a common carrier was held liable to a passenger for an injury received in a collision between its car and the car of another company, which it had admitted to the joint use of its track, although the collision resulted wholly from the negligence of the latter company. In that case the liability of the owning company was for the breach of its contract of carriage. The court remark: “No principle is suggested which would afford immunity to the owning carrier from the liability for the negligence of its licensee in a case of this character. That there is no such immunity has been held in numerous cases.” One of the cases last referred to is Jefferson v. C. & N. W. Ry. Co., 117 Wis., 549. There the injury resulted'from a defective engine of the licensee. In expressing the judgment the court say: “The principle is well established that, when a railroad company permits another to-make joint use of its track, it is liable for injuries caused to persons or property by the actionable negligence of such licensee. 2 Elliott, Railroads, § 477; Railroad Co. v. Barron, 5 Wall., 90. It has received' its franchise to operate a railroad subject to certain well-defined duties as to the machinery which it uses. It cannot, while exercising those franchises, allow others to come in with defective machinery and use the quasi-public highway, jointly-with it, and escape the duty laid upon it by its charter to use safe machinery. Such a rule would open a door by which public servants, while reaping all- the. pecuniary benefits of their franchises, could- easily escape from a considerable portion of- their correlative duties by licensing irresponsible third persons to transact certain portions of their business.”

The statute-under-which this lease was made enables companies -to enter into such an agreement. It does not compel the owning company to permit the joint use. .Itmay-do so at its option. -It does not permit the directors even to make the contract. It must -be authorized “by not less than two-thirds in amount of-the-stockholders of each company proposing to-enter-into such arrangement'or agreement.”

It might well be held -that from the grant to a railroad company of power to lease its road and the entire control • and operation of it to another company,'- there was an' implication that the legislature intended that the leasing company should be absolved from liability arising from the operation and management of the railroad,; ..but where the owning company still retains its business and still runs its cars over and operates the line of railroad under its own management and control, giving a right of passage to another company, no such implication arises. There is no common-law authority for a railroad company.to lease.its.line at all, in such a manner as to lessen its obligations to the public. Thomas v. Railroad Co., 101 U. S., 71; Chollette v. O. & R. V. Rd. Co., 26 Neb., 159; Hayes v. Northern Pac. Rd. Co., 74 Fed. Rep., 282. The rule has become elementary: that statutes .in derogation of the common law should not by interpretation be extended beyond the plain .import of their terms. Krause v. Morgan, 53 Ohio St., 26, 42; Commissioners v. The Marietta Transfer & Storage Co., 75 Ohio. St., 248.

By the terms of the, lease, involved in this case the Toledo & Western company,agreed to .indemnify and save harmless the defendant from all loss, liability, damage and expense ’caused or claimed to be caused by the negligence of the former. Such provisions would not.fix any legal liability on the defendant, nor should they be given,undue consideration, but they indicate the view that- the parties took of the nature of the contract, they were engaged in making. That the owning company, under circumstances similar to those. found in this case, is not exempt from the .negligence- of its licensee in the absence of express statutory provision, is the view that has been entertained in a number of cases, among which are the following: Braslin v. Somerville Horse Rd. Co., 145 Mass., 64; Chollette v. O. & R. V. Rd. Co., 26 Neb., 159; Singleton v. Southwestern Railroad, 70 Ga., 464; Penna. Co. v. Ellett, 132 Ill., 654; Driscoll v. Nor. & Wor. Rd. Co., 65 Conn., 230; Nelson v. Vermont & C. Ry. Co., 26 Vt., 717.

Careful consideration of the statute under which this lease was made, constrains us to hold that it was not intended that the owning company making such a lease, as was made in this case, should be immune from liability for the negligence of its lessee in the operation of cars over its lines. The liability of the owning company rests upon the principle that, having received valuable rights and privileges to operate dangerous agencies in populous thoroughfares, it incurs obligations of high care in exchange therefor. It should not be permitted, in the absence of express statutory provision, to escape this responsibility by a contract with another company, under which it secured a share in the profits of the traffic, continued its own business and retained the right and power to direct the management and operation of the cars of that other company.

We have considered the suggestions as to error of the common pleas in connection with the issue of contributory negligence and as to a variance in proof, but we find no error in the record of that court in these regards.

For the reasons given the judgment of the court of appeals will be reversed and that of theo court of common pleas affirmed.

Judgment reversed.

Nichols, C. J., Donahue, Wanamaker and Wilkin, JJ., concur.