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bonds as collateral for anything save Ed request for Edward's, has found that Wilward's notes. He was in fact willing, and liam held the notes as collateral for the inoffered, to give them up to Edward, on pay debtedness specified in Edward's second rement of the latter's notes. Yet he would quest, and that a contingent liability is, now, under the stress of a hopeless case notwithstanding the surrounding and contem(hopeless, in view of the previous judgment), poraneous facts, to be construed as an indebthave us believe that Judge Lawrence found edness. Both propositions are clearly errothat he (William) did actually hold the $30,000 of United Lines Telegraph Company The more this case is examined, the less bonds, as well as the $125,000 of Hoffman defensible seems to be the refusal of the House bonds, as security for the Read notes. court below to permit the trial upon the The transposition of the findings clearly counterclaim to proceed. The ruling was shows the reverse. What the learned judge equivalent to a nonsuit in an action upon found is perfectly plain. Edward had asked the facts alleged in the counterclaim, and him to find that William held the $125,000 was directed without even a motion there. of Hoffman House bonds, to secure the $32, for, specifying the grounds. It would be a 000 of Edward's notes. The judge in effect gross injustice to affirm such a judicial acsaid: "No; this is not a complete state tion upon any narrow or technical view of ment. William so holds these notes, it is the pleadings and the proofs, if it were postrue, and he so holds them for your $32,000 sible, which I do not at all concede. Every of notes; but he also holds $30,000 of the inference that can reasonably be drawn from U. L. Telegraph Co. bonds, to secure this the facts should be drawn in favor of the same indebtedness of yours; and I will find defendant's right to have his case properly it in that precise and accurate way, and submitted to a jury. He was either entitled not in your partial and incomplete way." to a direction or to such a submission. In William had himself specified Edward's four any view of the case, there should be a notes, aggregating $34,300, as "the aforesaid new trial. indebtedness.” Again, the judge in substance said: “No; that too is inaccurate. BARTLETT and VANN, JJ., concur with Edward is right in saying that the indebted HAIGHT and MARTIN, JJ., for affirmance. ness aggregated but ‘about $32,000,' and it

O'BRIEN, J., concurs with PARKER, C. J., is that aforesaid indebtedness which William and GRAY, J., for reversal. holds the two blocks of bonds for.” Thus, it is entirely clear that Read's notes were

Judgment affirmed. never included in the "aforesaid indebtedness," as contemplated by the proposed findings of either party, or by the judge. Those Read notes were not, in fact, an indebted HESSE v. COLUMBUS, S. & H. R. CO. ness of Edward's at all, but a contingent (Supreme Court of Ohio. March 22, 1898.) liability. Neither party in their proposed INJURY TO EMPLOYE – DEFECTIVE APPLIANCES, findings even hinted that the bonds were

Knowledge--DAMAGES-EVIDENCE. held as collateral to that contingent lia

1. In a petition to recover from a railroad bility. The findings cannot be strained or

company for a personal injury received by a

fireman in consequence of defects in the locomotortured into meaning what was never in tive upon which he is employed, it is necessary tended, and what, in view of the testimony to allege that he had no knowledge of such on the one side and the admissions on the

defects, or that, having such knowledge, be other, would have been wholly without sup

informed his superior, and continued in the

service relying upon his promise to remedy the port and in fact absurd. Thus, it is abso defects. This

requirement is not affected by the lutely clear that there was no finding that act of April 2, 1890 (87 Ohio Laws, p. 149). these securities were held as collateral to

2. On the trial of an action by an admin

istrator to recover when such injuries have the Read notes, and that in fact, upon the proved fatal, it is not competent to call wit. admission in the pleading and the uncon nesses to testify that the deceased fireman tradicted testimony, they were not so held.

was in the line of promotion when the injuries

were received. Nevertheless, it is now gravely argued that

(Syllabus by the Court.) even if the agreement is dead, even if Edward's covenant to increase the security,

Error to circuit court, Perry county. and to permit it when so increased to be

Action by Gertrude Hesse, administratrix, held for all the purposes specified in the

against the Columbus, Sandusky & Hocking sixth clause, cannot be enforced, yet the

Railroad Company. From a judgment of the plaintiff was entitled, under this very agree

circuit court reversing a judgment of the court ment, to hold the original securities for these

of common pleas, plaintiff brings error. Af

firmed. Read notes. Why? Because, as the plaintiff contends, the agreement, though dead, Mrs. Hesse filed her petition in the court of recited his right to so hold these securities, common pleas, alleging, in substance, that she and that recital lives, though the rest of the is the qualified administratrix of the estate of agreement is dead; and because Judge Law. Neil Hesse, deceased; that on the 4th of Janrence, in substituting Edward's second re uary, 1896, and prior thereto, he was emquest for William's, and William's third ployed as a fireman on the defendant's locomo

tive No. 35; that said company, in violation of its duty, negligently and carelessly provided said Neil Hesse with a defective and unsafe locomotive, which, while being so used by him, in consequence of its weak and defective condition, and without fault on his part, exploded, whereby he was immediately killed; and that thereby his next of kin suffered damage in the sum of $10,000, for which she prayed judgment. The petition did not allege that Neil Hesse was ignorant of the defective condition of the engine. Without demurring, the company answered, denying that it was negligent in the premises, and denying that the locomotive was defective or unsafe. The cause was tried to a jury, and a verdict was returned in favor of the plaintiff. The defendant's motion for a new trial was overruled, and a judgment was rendered on the verdict, whereupon the company took a bill of exceptions setting forth the evidence, and the charge, and its exceptions to portions thereof. On petition in error the circuit court reversed the judgment for the reasons following: First. Because the petition does not state a cause of action. Second. Because of error in the admission of evidence as to the deceased being in the line of promotion. The circuit court found no other error in the record.

Herbert Butler and Donahue, Spencer & Donahue, for plaintiff in error. John Ferguson and H. D. Cochran, for defendant in error.

they are, with obvious propriety, charged with knowledge of such defects as are or might be discovered by the senses of their officers and employés. It is with like propriety that the communication of such knowledge is required from all with whose knowledge they are chargeable. But the most confident contention of counsel for the plaintiff is that the act of April 2, 1890 (87 Ohio Laws, p. 149), releases the employé of a railroad company from this general rule. The act applies to railroad corporations only. Reliance is upon the second section of the act, which is as follows: "Sec. 2. It shall be unlawful for any such corporation to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any manner defective. If the employee of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachments thereto belonging,

such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is so sustained and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state brought by such employee, or his legal representatives, against any railroad corporation for damages, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation." The act, by its terms, affects the rules of evidence. It does not affect the duty of the employé, nor the rules of pleading with respect to it. In the cases to which it applies it raises against the corporation a prima facie presumption of negligence from evidence showing that the employé received an injury by reason of a defect in the car or locomotive, or the machinery or attachments thereto belonging. In Coal Co. V. Norman the general rule governing cases of this character is stated: “The seryant, in order to recover for defects in appliances, must establish three propositions: (1) That the appliance was defective; (2) that the master had, or should have had, notice thereof; (3) that the servant did not know of the defect." The force of the statute under consideration is wholly expended in relieving the servant of the duty of establishing the second of these propositions. His duty with respect to the first and third remains wholly unaffected. Although recoveries were sustained in Railway Co. v. Erick, 51 Ohio St. 146, 37 N. E. 128, and Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N. E. 768, the view taken of the statute was consistent with that which is here expressed.

Nor do we think that the circuit court erred in the second ground of reversal stated in its entry. Against the objection of the defendant the trial court permitted witnesses to testify that the plaintiff's intestate was in the line of promotion when he received the fatal injuries. The jury were otherwise fully informed as to the intestate's babits, health,

SHAUCK, J. (after stating the facts). The general rule is established in this state and elsewhere that in an action by a servant against his employer for an injury resulting from the latter's negligence in furnishing machinery or appliances, about which the servant is employed, the plaintiff must allege that he was ignorant of the defect from which the injury resulted; or that, having knowledge of such defect, he informed the employer, and continued in the service, relying upon his promise to remedy the defect. This requirement is not answered by an averment that the injury occurred without fault of the plaintiff. ACquiescence with knowledge is not synonymous with contributory negligence. One having full knowledge of defects in machinery with which be is employed may use the utmost care to avert the dangers which they threaten.

Coal Co. v. Norman, 49 Ohio St. 598, 32 N. E. 857; Coal Co. v. Estievanard, 53 Ohio St. 43, 40 N. E. 725. The servant must be required to communicate to his employer such knowledge as he may have of defects in machinery or appliances about which he is employed, or the law will not be administered according to the reason which is its life. Fully justified by considerations of policy, the courts require of railway companies with respect to their patrons and the public the exercise of that high degree of care which is commensurate with the dangers of their operation. To the end that such care may be exacted from them,

233

position, and capacity to earn. These and court. Thereupon a petition in error was other like circumstances constituted the ex filed in this court by the clerk, and a cross isting facts from which the jury were to de petition in error by the board of commistermine the amount of damages which they sioners. should assess. The evidence to which the ob The items of the clerk's claim are as foljection was made was introduced to show a lows: supposed probability that his capacity to earn

Work on General Index of Judgments. would have become greater in the future. It

2,033 parties' names indexed in 442 cases.

1,6.3 started an inquiry which could have no other effect than to consume time unduly, and to Total, 3,706 parties' names indexed in 675 causes. introduce speculative considerations into the as Work on Pending Suits and Living Judgments Index. sessment of damages. Brown v. Railway Co.,

1.530 parties' names in 444 separate sults.

1,131 parties' names in 360 64 Iowa, 652, 21 N. W. 193.

2,223 individual judgments in 487 We observe no other errors for which the

281 individual judgments in 77

373 execut ons judgment of the common pleas court should have been reversed. It does not appear that

5,538 parties

in 1,368 separate salts. in either of the courts below it was thought The common pleas court held that the that there could be a recovery without evi county was liable for the work of keeping dence establishing the fact that the explosion up the general index, and not liable for indexwas due to defects in the boiler. Judgment ing the pending suits and living judgments, affirmed.

and, in computing the work done on the general index, held that each separate suit should be considered as one cause, and a fee

of eight cents chargeable therefor, regardCLARK V. BOARD OF COM'RS OF LUCAS

less of the number of parties to the suit. COUNTY.

The board of county commissioners claim (Supreme Court of Ohio. March 22, 1898.)

that the court erred in allowing the $54, and Fees ro PUBLIC OFFICERS – CLERKS OF COURTS

insist that the clerk is entitled to no pay COMPENSATION.

whatever out of the county treasury for his 1. To warrant the payment of fees or compensation to an officer, out of the county treas

services in keeping up the general indexes; ury, it must appear that such payment is au while the clerk claims that he is entitled to thorized by statute.

payment out of the county treasury for the 2. Clerks of courts are entitled to be paid

full amount of his claim, as presented to the out of the county treasury for keeping up, continuing, and thereby completing the general in county commissioners. dexes, direct and reverse, of all judgments, final orders, and decrees, as mentioned in sec

Clayton W. Everett, for plaintiff in error. tion 1263, Rev. St. But such clerks are not en 0. W. Velson, for defendant in error. titled to payment out of the county treasury for keeping up and continuing the alphabetical BURKET, J. (after stating the facts). It index, to pending suits and living judgments, is well settled that a public officer is not enprovided for in sections 1255 and 1256, Rev. St. Nor are such clerks entitled to payment out of

titled to receive pay for services out of the the county treasury for making direct and re public treasury, unless there is some statute verse indexes to executions issued by such authorizing the same. Services performed clerks.

by the public, where no provision is made 3. The amount which such clerks are entitled to receive out of the county treasury for their

by statute for payment, are regarded as a services in keeping up and completing such gen gratuity, or as being compensated by the eral indexes, direct and reverse, of all judg.

fees, privileges, and emoluments accruing to ments, final orders, and decrees, is eight cents

such officer in the matters pertaining to his for each cause, and not eight cents for each The word "cause," in said section 1263,

office. Jones v. Commissioners, 57 Ohio St. includes all the names to the judgment, final or 189, 48 N. E. 882. To warrant payment out der, or deeree; and the fee for indexing all of

of the public treasury, it must appear that them is eight cents, and no more.

such payment is authorized by statute. (Syllabus by the Court.)

Const. art. 10, $ 5; Debolt v. Trustees, 7 Error to circuit court, Lucas county.

Ohio St. 237; Anderson v. Commissioners, Action by one Clark against the board of

25 Ohio St. 13; Strawn v. Commissioners, 47 county commissioners of Lucas county. The

Ohio St. 404, 26 Y. E. 635. judgment for plaintiff was affirmed by the

Sections 1235, 1236, and 1257, Rev. St., are circuit court, and both parties bring error.

as follows: Affirmed.

"Sec. 1255. The clerks of the several comThe plaintiff in error, clerk of courts of mon pleas, circuit and superior courts shall Lucas county, presented a claim for making make an alphabetical index of the names indexes to the board of county commission of all plaintiffs and defendants to pending ers; and, this claim not being allowed. an suits and living judgments, showing therein, appeal was taken to the court of common in separate columns the names, court and pleas, where the case was heard by the number of the suit or execution, and when court, the facts being agreed upon. Judg. there is more than one suit or judgment for ment was rendered in favor of the clerk for or against the same party, it shall be sutti$54, being 8 cents each for 675 causes, and cient to index the name but once and make that judgment was affirmed by the circuit entries opposite thereto, of the court and

name.

the number of the suit or execution; provided, tbat no such index shall be made in counties where the same has already been done.

“Sec. 1256. The index required by the preceding section shall be made within six months from the passage of this act, and thereafter all new suits shall be so indexed at the time of the filing of the petition and all judgments at the time of the filing of the rendition, revival or a transcript thereof; provided, however, that whenever the court of common pleas of any county containing a city of the second grade, first class, shall direct, the clerk of said court shall make a re-index, in the manner provided in the preceding section, of all pending suits and liv. ing judgments, then on the docket of any or all of said courts, in which said re-index all new suits shall be so indexed at the time of the filing of the petition and all judgments at the time of the filing of the rendition, reviral or a transcript thereof.

"Sec. 1257. The clerk shall receive the same fee for making such indexes, as is provided by law for making indexes to judg. ments, and whenever such re-index is made by him, by the order of the court, as provided in the preceding section, the clerk shall receive for re-indexing each pending suit and each living judgment then upon the dockets of any of said courts, and actually indexed by him, the sum of fifteen cents, payable out of the county treasury."

Section 1260 fixes the fees which clerks may tax against litigants, and among other fees that clerks may so tax are the following: "For indexing judgments and final orders for each case, fifteen cents; making direct and reverse index to each execution issued, eight cents."

Section 1263 provides that “the clerk shall receive from the treasurer * * * the following fees; • making up and completing general indexes, direct and reverse, of all judgments, final orders, and decrees. eight cents for each cause."

The history of these sections has been carefully compiled and reviewed by counsel, with a view of thereby fixing a construction upon the sections as they now stand; and we have carefully considered the questions thus raised, and have concluded that there is nothing in the repealed sections to change the ordinary construction to be placed upon these sections in their present form. The index to pending suits and living judgments, provided for in section 1255, is to be made only in counties wherein no such index had been made before the enactment of that section in 1881; and section 1256 re res such index to be made within six months after the passage of the act, March 24, 1881. Under the amendment of these two sections, March 24, 1881, a new index was required to be made in counties in which no such index had previously been made; and, for the making of such new index, it was provided

in section 1257 that clerks should receive the same fees as provided by law for making indexes to judgments. And it was then, as now, provided by law (section 1263) that clerks should receive from the treasurer, for making up and completing general indexes, direct and reverse, of all judgments, final orders, and decrees, eight cents for each cause.

It is therefore clear that for the making of these new indexes of all pending suits and living judgments within six months after the amendment of said sections 1255 and 1256 on March 24, 1881, clerks were entitled to receive their pay out of the county treasury. But we have failed to find any statute, and none has been cited, warranting payment out of the county treasury for continuing and bringing up these indexes of pending suits and living judgments from time to time as new suits should be filed, and new judgments rendered; and the compensation of clerks for such services, and for indexing executions, is covered by the fees for indexing allowed by section 1260 to be taxed against litigants. The making up and completing of general indexes, direct and reverse, of all judgments, final orders, and decrees for which clerks are to receive eight cents for each cause, as provided in sec. tion 1263, includes not only the original making of such general indexes, but also keeping them up from time to time, so as to have at all times a complete general index of all judgments, final orders, and decrees. As new judgments, final orders, or decrees are rendered, clerks are required to complete the general indexes by adding thereto all such new judgments, final orders, and decrees, and for such services clerks are entitled to receive out of the county treasury the sum of eight cents for each cause.

The claim made by counsel for plaintiff in error to the effect that each cause means each name, whether plaintiff or defendant, is not tenable. A name is not a cause; neither is a plaintiff or defendant a cause. The word "cause" is used in the sense of an action or lawsuit. There may be many parties to an action, but all combined constitute but one action, one lawsuit, one There is no error in the record. Judgment affirmed.

cause,

BAUM et al. y. THOMS. (Supreme Court of Indiana. April 27, 1898.) CANCELLATION OF MORTGAGE – COMPLAINT — EviDENCE – USURY-ACTION TO RECOVER

MODIFICATION OF JUDGMENT. 1. A complaint to set aside a mortgage states facts sufficient to constitute a cause of action, which charges that defendants were engaged in loaning money at usurious interest; that they had separate places of business, but a mutual arrangement, by which loans were changed from one to the other in order to more successfully loan money at usurious interest; that plaintiff borrowed $25 in 1891, and $50 in 1892, under an agreement to pay legal interest only;

that she paid thereon $175; tbat in 1894 they that she finally executed the mortgage and claimed a balance due of $150; that the sum

note for $112.60, set out in the complaint, on loaned, with legal interest, had been fully paid, together with $50 usurious interest; that she

account of the threats, importunities, and opfinally executed the mortgage and note for pressive conduct of the parties, which are $112.60, set out in the complaint, on account set forth in the complaint at great length. of the threats of the parties, which are set forth in the complaint at length.

It is evident that said complaint was sutti2. Where the maker of a note and mortgage

cient to withstand a demurrer for want of sues to have them canceled on the ground of no facts. consideration, and to recover usurious interest

The causes assigned for a new trial are paid, and charges collusion between the defendants, evidence by one defendant that the note

(1) that the decision of the court was not suswas given him for money borrowed by plaintiff tained by sufficient evidence; (2) that the to pay an indebtedness to the other defendant decision of the court is contrary to law; (3) does not necessarily establish that fact if re

that the damages assessed are excessive; (4) butted by circumstantial evidence that there was collusion between the defendants, and that

error in the assessment of the amount of the money borrowed was returned by the one recovery, the same being too large. to whom it was paid.

It is insisted by appellant Mackey, to 3. One who pays usurious interest is not confined to the remedy given by statute, but may

whom the note and chattel mortgage in conrecover back the usurious interest in an ac troversy were executed, that the evidence tion brought for that purpose.

shows that she loaned $105.10 to appellee, 4. The repeal of a statute which modified or

and took said note and chattel mortgage for repealed a common-law rule revives the common-law rule, unless a contrary intention is

$112.50, and that said appellee borrowed the manifested in the repealing act.

same to pay what she owed appellant Baum, 5. It is not error to overrule a motion to modi

and that, when said note and mortgage were fy a judgment which is not well taken as a whole.

executed, a check for $105.10 was delivered

to appellee, and that she, at the same time, Appeal from superior court, Marion coun

wrote her name across the back of said ty; P. W. Bartholomew, Judge.

check, and the same was taken away by apAction by Ella Thoms against Lewis Baum

pellant Baum, whose claim the $105.10 was and others. From a judgment for plaintiff,

borrowed to pay, and that, therefore, the defendants appeal. Affirmed.

finding was not sustained by the evidence. John W. Kealing and Chas. E. Averill, for There was evidence to the effect claimed, but appellants. H. M. Wyatt, Hez. Daily, G. R. the court may have concluded from all the Estabrook, and G. W. Spahr, for appellee. evidence that appellants were acting in con

cert, and that the check was given in order MONKS, J. Appellee brought this action to cover up the real transaction, which was against appellants to set aside and cancel a to procure the note and mortgage for an innote and mortgage executed by her, and to debtedness which was already more than recover usurious interest paid to appellants. paid, and at the same time give it the apThe court tried said cause, and made a gen pearance of a new loan, and thus cut off the eral finding in favor of appellee, and, over defense of usury. To support such concluthe separate motion of each appellant for a sion, it was not necessary that any one new trial, judgment was rendered in favor should testify that such was the purpose of of appellee. Appellants filed separate mo the transaction, or that there was an agreetions to modify the judgment, which were ment or understanding between appellants overruled. The errors assigned call in ques to that effect, or that the money received on tion the sufficiency of the complaint, the ac said check was returned by Baum to Mackey tion of the court in overruling the motions after the note and mortgage were executed. for a new trial, and in overruling the mo Such facts may be established by circumtions to modify the judgment.

stantial evidence. The trial court heard the The complaint charges, in substance, that witnesses testify, saw their manner and conthe defendants in the court below were en duct while testifying, and was the exclusive gaged in the business of loaning money at judge of their credibility, and was able to usurious interest, and that, while they had determine whether said affair in giving the separate places of business, they had an un note and mortgage to appellant Mackey, and derstanding and arrangement between them the delivering of the check to appellee, and selves by which the loans were changed from the indorsement by her of the same to Baum, one to the other, in order the more success was what it appeared to be,-a new loan to fully to carry on the business of loaning appellee,--or whether it was a mere form, money at illegal and usurious interest; that a sham arranged to deceive and mislead apappellee borrowed $25 in 1891, and $50 in pellee, and cover up the real transaction. 1892, under agreement that she was only to It is next insisted that while usurious inpay interest at the legal rate, and that she terest voluntarily paid may, under section paid thereon, principal and interest, $175, 7046, Burns' Rev. St. 1894 (section 5201, Horwhen in 1894 they claimed that there was ner's Rev. St. 1897), be recouped by the debtyet due $150, when in fact the sum loaned or in an action on the contract affected by had been fully paid, principal and legal in such usury, the same cannot be recovered terest, and she had paid them in addition back in a direct action, and that, therefore, thereto $50, usurious interest on said loan; the finding and judgment against appellants

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