« ForrigeFortsett »
(146 N.E.) and bar in other reports. From an investi-, stipulated forfeiture is applicable alike to gation of the cases, however, we think the each covenant, and would become due upon following general principles may be enun- the breach of a single covenant, and is clearciated:
ly a penalty as to one covenant, it will be [1-4] In determining whether the sum pro held a penalty as to all covenants. vided to be paid in the contract is liquidated This court had the very question involved damages, or a penalty, a court will construe in this case under consideration in the case the contract by its four corners in the light of Berry v. Wisdom, 3 Ohio St. 241, where of the situation of the parties at the time of it held: the execution of the contract, and from that
"Where the note is to be paid upon full proof position will determine whether the damages of a breach of the agreement on the part of which would be sustained by reason of A., and the agreement contains several covebreach could, by the process of computation nants to be performed by A., some of more, and and adjustment, have been easily and ap some of less importance than others, and the proximately ascertained at the time of exe- actual amount of damages which B. would suscution of the contract; and, in determining tain by a breach of some of the covenants, whether they were so ascertained, will com
would be easily ascertained; the sum mentioned pare the amount stipulated with the amount ed damages, but in the nature of a penalty.”
in the note is not to be considered as liquidatof damages which would probably result from the breach, and if there is such dis Measured by this rule, and applying the crepancy between the sum stipulated and the sum stipulated in this case to the stock of damages which would probably and naturally goods and fixtures, the sum stipulated is conresult from the breach as to indicate that siderably in excess of one-third the entire the sum stipulated could not have been ar- value of the subject-matter of the contract, rived at by a process of computation and ad- and is in excess of the damages which plainjustment, or, if arrived at by process of com- tiff in error could recover as actual damages putation and adjustment, such process did by the difference between nominal damages not have for its purpose compensation but and the sum of $1,000, and relates to a matwas arrived at for some purpose other than ter of which the actual damage could be compensation, the sum stipulated will be held easily ascertained. It therefore is apparent to be a penalty rather than liquidated dam- that the sum was not arrived at by the parages, the theory being that the parties to the ties to this contract by fair calculation and contract, having in mind the damage which adjustment, with a view to establishing by will be occasioned by its breach, may com- agreement the compensation which a jury pute or estimate that damage between them- would be obliged to return from the results selves and contract with reference thereto which would inevitably flow from the breach and thus avoid the necessity of submitting of the contract, but that the sum was arthe question to a court or other tribunal, bitrarily fixed as a penalty or security that and so long as the sum which they agree up the contract would be performed. on bears a reasonable proportion to the dam
Applying the sum fixed as damages to the age which would result from the breach, breach of the other subject of the contract, such sum will be considered as liquidated while the record discloses by the evidence damages; or where the damage which will of the plaintiff in error that the stipulated result from a breach would be difficult of rental of $50 per month, each month in adascertainment in advance, or difficult of vance, was "the fair rental value” of the proof after the breach, and the sum stipulat- property "at that time,” and on this record ed is not unreasonable or unconscionable, the damage in that respect would necessarand bears some reasonable proportion to the ily be nominal, yet by reason of the fact that value of the subject-matter and the dam- damages with reference to the breach of the ages which might reasonably result, and in contract to lease for a period of five years fixing the sum stipulated the parties bad in would not be easily computable and ascermind compensation and endeavored to antici- tainable in advance, and so many eventualipate the damage which would probably re ties might occur and might have been in the sult, the stipulated sum will be construed as minds of the contracting parties, which might liquidated damages and not as a penalty. have prevented the owner from realizing But where it is apparent from the contract rents aggregating a sum equal to the price itself and the situation of the parties there- stipulated in the contract from persons othto that the sum stipulated was arrived at er than the defendants, which could not by arbitrarily, and bears no relationship to the the process of calculation and adjustment damage which probably would result from a have been easily fixed at a definite sum, we breach, where such damage is reasonably as
are not able to say that the parties had in certainable, the sum stipulated as damages mind a purpose to do other than name a will be considered a penalty and not liquidat- sum which would compensate for the breach ed damages, and the parties will be relegated of the agreement to lease. to their right to recover such damage as However, in view of the fact that the conthey may be able to prove; and where a tract pertained to two subjects, and containcontract contains several covenants, and the ed separate covenants as to each subject, and
the clause fixing the sum to be forfeited by ley, with a warrant of attorney to confess its express terms made the stipulated sum judgment thereto annexed. payable upon the failure of either party “to On June 15, 1922, the instant case was perform all and singular the conditions of filed in the court of common pleas of the contract," and the further fact that by Trumbull county, Ohio, being brought by reason of the terms of the contract the dam- John Jerko, the defendant in the first case, ages for the breach of the sale of personal against the Kinsman National Bank, the property could in no event have been other plaintiff in the first case, to enjoin the colthan nominal, under the rule enunciated in lection of the judgment rendered by confesBerry v. Wisdom, supra, this court can reach sion in the former case in favor of the bank, no other conclusion than that as to that sub and to declare that judgment null and void. ject the sum named was a penalty. Being in The lower courts held the judgment obgross, and a penalty as to one subject, it tained in the action upon the promissory note becomes a penalty as to all subjects, since by to be void, upon the ground that the warrant the express terms of the contract it was ap- of attorney attached to the note did not auplicable alike to the covenants upon the sub- thorize entry of judgment outside of the ject of the sale of personal property and the state of Pennsylvania, nor in favor of any covenants upon the subject of the lease. one except the payee, and permanently en
The judgment of the Court of Appeals is joined the defendant from collecting or ataffirmed.
tempting to collect the judgment. Judgment affirmed.
The case comes into this court upon motion
to certify the record. MARSHALL C. J., and DAY and ALLEN, JJ., concur.
G. H. Birrell, of Warren, for plaintiff in
Fillius & Fillius, of Warren, for defendant in error.
KINSMAN NAT. BANK V. JERKO. (No. 18447.)
PER QURIAM. Was the plaintiff entitled
to secure an injunction against the enforce (Supreme Court of Ohio. Dec. 23, 1924.)
ment of the judgment rendered by confes(Syllabus by Editorial Staff.)
sion upon the promissory note?
The defendant in its answer, which was 1. Equity em 65 (2)-Plaintiff's fraudulent dis- not denied, stated that it purchased the note
position of chattel property, to place it beyond reach of creditors, bars relief in equity. in good faith for value prior to the date of
maturity; that Jerko knew that the note was Fraudulent attempt of plaintiff to secure time before judgment was taken against him due and payable at the defendant bank prior by confession, in which he mortgaged his prop- to maturity, and knew the date, and agreed erty to place it beyond reach of creditors, held to pay the same within a few days after it within maxim that plaintiff must come into equi- became due; that upon June 13, 1921, he sent ty with clean bands.
a messenger to the defendant bank, request2. Equity Om65(1)-Equity will not aid one ing it to refrain from taking judgment upon
guilty of inequitable conduct in matter in the note for a few days, and upon the next which he seeks relief.
day executed a chattel mortgage upon all Equity will not aid one who has been guilty his property to one E. H. Stewart for a conof inequitable conduct in matter with relation sideration of $8,000; that on June 20, 1921, he to which he seeks relief.
(Jerko) had notice that the judgment would Matthias, Jones, and Robinson, JJ., dissent- be taken on the said note; that on June 27, ing.
1921, judgment was taken and execution was
issued, which was later returned unsatisfied ; Error to Court of Appeals, Trumbull that on or about July 1, 1921, Jerko had County,
personal knowledge that the said judgment Action by John Jerko against the Kinsman had been taken, and conferred with his atNational Bank. Judgment for plaintiff was torney regarding the same; and that upon affirmed by the Court of Appeals, and de- aid of execution were had, at which Jerko
June 15, 1922, after various proceedings in fendant brings error. Reversed and rendered.-[By Editorial Staff.]
was present, he filed this action, and secured
the permanent injunction granted in this On the 27th day of June, 1921, the defend case. ant, the Kinsman National Bank of Kinsman, Under these circumstances was Jerko entiOhio, obtained a judgment by confession | tled to an injunction? against the plaintiff, John Jerko, in the court  Plaintiff in error claims that, having reof common pleas of Trumbull county, Ohio, sorted to a court of equity, defendant in erupon a promissory note in the amount of ror must be bound by equitable rules, and $3,553.50, payable to the order of M. S. Pol-that he has not done equity herein, because
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N.E.) he does not come into this court with clean clusion of law of the Court of Appeals, based hands.
upon its finding of facts, and the judgment With this proposition we are in agreement. of that court should be affirmed. The deThe answer of the defendant in the original fense that a judgment is void is always a action was not. denied, and is therefore ad- complete defense against an attempt to enmitted. This shows a fraudulent attempt up-force collection thereof. on the part of the plaintiff to secure time before judgment was taken by the bank, in JONES and ROBINSON, JJ., concur in the which he conveyed away his property by dissenting opinion. chattel mortgage in more than double the amount of the note. It shows knowledge upon the part of the plaintiff, Jerko, that the judgment was to be taken and actual notice
JAMES V. CINCINNATI TRACTION CO. that the judgment had been taken four days
(No. 18044.) after the entry of Judgment. It shows that Jerko first tried to place his property beyond (Supreme Court of Ohio. Dec. 23, 1924. Rethe reach of his creditor, and then put his
hearing Denied Jan. 20, 1925.) creditor of repeatedly until it found prop
(Syllabus by Editorial Staff.) erty upon which to levy, at which time he
1. Trial em 258(1)- Inquiry of counsel held applied to a court of equity for relief.
sufficient to direct attention to, and require In this view of the question it is immate
charge on, contributory negligence, If It was rial whether the judgment was merely ir in issue. regular, as plaintiff in error contends, or ab
Inquiry of counsel in jury's presence as to solutely void. In either case equity will not whether court was going to charge on contribuallow relief unless the plaintiff himself does tory negligence was sufficient to direct attenequity.
tion to that issue, and require charge thereon,  Equity refuses to lend its aid in any if it was an issue, even though raised by evi
dence alone. manner to one seeking its active interposition who has been guilty of inequitable conduct 2. Carriers Ow348(14)-Evidence held insuffi. in the matter with relation to which he cient to call for instruction on contributory seeks relief. 21 Corpus Juris, p. 182, and
negligence of passenger. cases cited.
In passenger's action for personal injury in For the foregoing reasons the judgment alighting from street car, evidence held insuffi
cient to call for instruction on contributory will be reversed, and judgment will be ren
negligence. dered for the plaintiff in error. Judgment reversed, and judgment for
Conn, J., dissenting. plaintiff in error.
Error to Court of Appeals, Hamilton
Action by one James against the Cincin
nati Traction Company. Judgment for plainMATTHIAS, J. (dissenting). I cannot tiff was reversed by the Court of Appeals, concur in the above fudgment of reversal for and plaintiff brings error. Reversed, and the reason that the judgment upon which judgment of superior court affirmed.--[By this injunction proceeding was predicated Editorial Staff.] was absolutely void for want of authority
Otto Pfleger, of Cincinnati, for plaintiff in. conferred by warrant of attorney to confess
error. judgment, which a full statement of the facts
James G. Stewart, of Cincinnati, for dewould disclose, and which I understand is fendant in error. conceded.
The note in question was payable to M. PER CURIAM. This cause was tried in S. Polley, was indorsed by him in blank, the superior court of Cincinnati upon the and also by Smith & Holcomb in blank; the petition, the amended answer thereto, and plaintiff nowhere appearing to be a payee. the evidence, and grew out of an injury
The warrant of attorney is such in terms which the plaintiff in error received as a that no authority was thereby conferred passenger of the defendant company, by fallwhich authorized or could authorize the con- ing while making her exit from a car of the fession of judgment in favor of any one in company. Ohio or elsewhere than in the state of The amended answer admitted the defendPennsylvania, where it was executed, and, ant's corporate capacity; that it was enfurther, the authority, being merely “to enter gaged in the business of carrying passenand confess judgment against us,” cannot be gers; that plaintiff fell while leaving one of construed to authorize the confession of a its cars; and specifically denied its neglijudgment in favor of such indorsee, or any gence and each and every allegation containone other than the payee. This was the con-led in the petition not expressly admitted.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
The cause was tried to a jury and verdict that she grabbed the horizontal rod at the side, rendered for plaintiff. Judgment was enter trying to recover her balance, and went over ed upon the verdict. Error was prosecuted the platform down onto the first step, not to the Court of Appeals, where the judgment reaching the street at any time.
"In her cross-examination plaintiff practically was reversed and an entry spread upon its
repeated what she narrated upon direct examjournal, the pertinent portion of which is ination, and she admitted, in addition, that as follows:
when she had described her accident to her "Upon consideration whereof the court finds accident insurance company, in answer to the that there is error apparent upon the face of question, “State particulars fully,' her reply the record to the prejudice of the plaintiff in had been, 'In an effort to get off the car, I error."
struck something with my right foot causing me
to lose my balance. Holding to rod kept me Thereafter a nunc pro tunc entry was from falling forward.' spread upon the journal by that court, the "John Lynch, a witness for plaintiff, testified
that he was on the car with his young boy; pertinent part of which is:
that a lot of colored people got on at Sixth “Upon consideration whereof the court finds street, and that he went inside; that he had to no error upon the weight of the evidence, but squeeze his way through the crowd when he got the court finds that there is error apparent out; and that the conductor was up in the front upon the face of the record in the failure to of the car; that some time before the street charge upon the subject of contributory negli- car stopped at his destination the conductor gence to the prejudice of the plaintiff in er- made the remark to the crowd substantially to ror."
the effect that they would have to squeeze
through; that he got off the car, and that as Error is prosecuted here.
Miss James got off she slipped over somebody's  At the conclusion of the charge of the feet or something-he could not see how it trial court, counsel for the defendant stated: was—and fell down, and one foot went to the
"As I understand it, your honor is not going step of the car and the other leg was under her to charge on the subject of contributory negli- sitting on the platform; that he took her into gence ?
the hospital, for which place they had both
The witness further said that "The Court: No. (To which ruling of the been bound. court counsel for defendant excepted.)”
plaintiff had either made a misstep or tripped; that he was not looking at her feet.
“James Lynch, son of John Lynch, testified This court is of opinion that the inquiry of for plaintiff that he was with his father; that counsel in the presence of the jury at the he saw plaintiff get off the car, and that she close of the charge was sufficient to direct fell with one foot on the step and the other one the court's attention to that issue, and to on the platform, and that he did not know require a charge upon that subject, if it were whether she stumbled or not, that he just saw an issue, even though raised by the evidence her fall; that he did not know where the con
ductor was, nor did he hear him say anything; alone.  Was there any evidence tending to that the car was crowded, and that he had to
push his way through. He further said, in conprove negligence on the part of the plaintiff? tradiction to his father, that his father did not
Plaintiff's testimony, as summarized by come into the car, but stood on the back platcounsel for defendant, for the purpose of form; that plaintiff stepped right off down to showing that that evidence raised a question the lower step toward the ground, and that he of contributory negligence, was as follows: just saw her fall, and that he did not see her
stumble over anybody.” “Plaintiff's testimony as to how her accident occurred starts on page 211 of the bill of ex
Whatever this evidence may have tended ceptions.
She said that she entered the car to show, or failed to tend to show, in proof about 6:35 p. m., at Fifth and Race streets of the negligence of the defendant, that quesand that there was one vacant seat as she entered; that she could not remember whether tion is not before this court, a jury having the platform was crowded at that time, but found negligence of the defendant company, that she knew it was not overcrowded; that and the Court of Appeals having specifically the platform became crowded between her en- found “no error upon the weight of the evi. trance and Central avenue; that, as she was dence.” It is urged here solely as tending to about to leave the car at her destination, the show negligence on the part of plaintiff in platform was crowded to the extent that she
error contributing to her injury. had to ask men to step aside at the door to permit her to leave; that at Smith street
We are unable to discover anything in this (which was the stop before her destination) the evidence which tends to show negligence on crowd was considerably eliminated, and that the part of plaintiff in error in any respect, it was there that the conductor said, 'If you unless we should hold that it was negligence get out of this car you will squeeze your way upon her part to attempt to leave the car out;' that at her destination the conductor was while it was in a crowded condition. To so in the front of the car and did not assist her hold, it would be necessary for us to declare in getting out; that she arose from her seat, went to the door, asked the people to step that the crowding of the street car by the aside to let her out; that as she started to defendant in error company created a dangerleave she stumbled over a foot, or feet, and ous situation, which situation deprived plainstarted to fall face forward toward the street; | tiff in error of her right to leave the car at
(146 N.E.) the end of her journey, at a regular stop, in PER CURIAM. In this case, Industrial the usual way provided by the company, and Commission v. Monroe, it appears that Wilthat an attempt so to do amounted to negli- ) bert Monroe died on May 3, 1922, suffering gence upon her part. A mere statement of, from what was claimed to be an occupationthe proposition answers it.
al disease known as lead poisoning. An ap The evidence above summarized carries plication was made by his parents, defendwith it no reasonable inference of negligence ants in error, to the Industrial Commission upon the part of plaintiff in error.
for compensation, which was refused. An The judgment of the Court of Appeals is appeal was prosecuted to the court of comreversed, and the judgment of the superior mon pleas of Perry county, and a finding court of Cincinnati is affirmed.
made in favor of the applicants for compenJudgment reversed.
sation. Error was prosecuted to the Court
of Appeals, which court affirmed the finding MARSHALL, O. J., and ROBINSON, of the court of common pleas. MATTHIAS, DAY, and ALLEN, JJ., concur.
The sole question for determination is whether by the terms of section 1465—68b,
General Code, this action was appealable CONN, J. (dissenting). I dissent from
from the findings of the Industrial Commisthe judgment for the reason that the court sion. That section reads as follows: erred in failing to instruct the jury as to the contributory negligence of plaintiff, to which "Every employé mentioned in the next prefailure the defendant below properly saved ceding section and the dependent or dependents the question.
of such employé and the employer or employers of such employé shall be entitled to all the rights, benefits and immunities and shall be subject to all the liabilities, penalties and regulations provided for injured employés and their
employers by sections 1465–44 to 1465—108 INDUSTRIAL COMMISSION OF OHIO v. General Code, inclusive, save and except secMONROE et al. (No. 18506.)
tion 1465—90, General Code, which shall not
apply to any case involving occupational dis(Supreme Court of Ohio. Dec. 23, 1924.)
ease, and also subject to such other modifica
tions or exemptions hereinafter provided. (Syllabus by Editorial Staff.)
"The Industrial Commission shall have all of 1. Appeal and error Om I-Right of appeal is the powers, authority and duties with respect statutory and may be given or denied.
to the collection, administration and disburseRight of appeal is statutory, and by legisla- ment of the state occupational disease fund as tive action it may be given or denied.
are provided for in sections 1465–44 to 1465
108, General Code, inclusive, providing for the 2. Master and servant en 417(3/4) - Appeal the state' insurance fund for the compensation
collection, administration and disbursement of from order denying compensation for occupa. tional disease not allowed.
of injured employés." Though Gen. Code, g 1465—68a (109 Ohio Laws, p. 183, § 1), grants right to compensa [1, 2] It is claimed on the part of the Intion for occupational disease, section 1465–68b dustrial Commission that, in cases of this (109 Ohio Laws, p. 185, § 1), denies privilege character, its findings are final, and that the of appeal from order of Industrial Commission right of appeal given by section 1465—90 is denying compensation therefor, and no appeal taken away. The Legislature by the state under section 1465–90 lies.
Constitution is given the right to enact laws Allen and Conn, JJ., dissenting.
relative to the compensation fund; the right
of appeal is a statutory right and by legislaError to Court of Appeals, Perry County. tive action this right may be given or denied, Application under the Compensation Act The sole question then being whether in by William Monroe and others for compen- tended to allow an appeal, a majority of the
occupational disease cases the Legislature insation for the death of Wilbert Monroe, claimant.
Order refusing compensation by i court are of opinion that the plain letter of the Industrial Commission was reversed by the statute denies this right. the court of common pleas, and on error to
It is not for this court to pass upon the the Court of Appeals, the judgment of the wisdom or reasons for denying such privilege. court of common pleas was affirmed, and the At common law there was no liability for Industrial Commission brings error.
damages for occupational diseases, but by Tersed and rendered.—[By Editorial Staff.]
statute (109 O. L. 183) the Legislature has
classified in 15 different divisions diseases O. C. Crabbe, Atty. Gen., R. R. Zurmehly, occupational in character that are compenof Columbus, and Vincent Tague, Pros. Atty., . sable, and in granting this right it by the of New Lexington, for plaintiff in error. same act denies the privilege of appeal. It
T. E. McElhiney, of Zanesville, for defend- would seem that any injury which the spirit ants in error.
and letter of the Compensation Act regarded For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes