UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY aoiqids €C6oa 616 -S) ^19 to 923 spltzor TOl-eDO.OHlO. ELLSWORTH M. CEARO ATTORNLY-AT-LAW 919 to 923 Spltzad' APPROVED FORMS, TAKEN FROM toledo. oHia ACTUAL CHARGES, OF INSTRUCTIONS TO JURY BOTH CIVIL AND CRIMINAL (under the OHIO code) By EDGAR B. KINKEAD (Columbus, Ohio) Judge Court of Common Pleas; Professor of Law, Ohio State University If thtrt is anything eminently and exclusively our own, it is our system of Legal Procedure.^' (Ranney) Cincinnati, Ohio THE W. H. ANDERSON COMPANY Law Book Publishers 1914 y Copyright, 1914, BY THE W. H. ANDERSON CO. Ml ' PREFACE One of the most difficult and important tasks in trial work is that of preparation of Instructions to the Jury. It may not be inappropriate to observe that this fact is more keenly appreciated by a trial judge. While it may become easier with experience the difficulty and importance will constantly appear in new cases. The forms of instructions contained herein have in the main been taken from the original charge of the trial judge, using his language excepting with slight modifications. They have been taken from printed records, and from transcripts from original cases that may not have gone to the court of last resort. A note at the end of each form indicates the case from which it is taken, and the judge who gave it, and if it has been approved the fact is stated. There is a marked dif- ference between a form taken from an actual charge and one framed in the abstract from decisions. Both kinds appear in the volume. E. B. KINKEAD. June, 1914. TABLE OF CONTENTS PART n. INSTRUCTIONS TO JURY— CIVIL AND CRIMINAL. CHAPTER LXIV. Province of Court and Jury, section page 1456. Relation of court, jury and attorney — Zeal of counsel 1097 1457. Introductory in criminal case — Provision of jury to ascertain truth — Province of court — Of attorneys 1098 1458. Appropriate remarks in the opening of a charge 1100 1459. Another form of opening statement 1101 CHAPTER LXV. Abortion. 1460. Abortion by physician — General charge 1104 1461. Elements of the crime 1 107 1462. Testimony of husband as accomplice 1108 1463. Belief that uterus contained dead foetus 1108 1464. Presumption of innocence continues until verdict 1108 1465. Unwise to convict on uncorroborated testimony of accomplice. . 1109 1466. Reasonable doubt as to intent — Reasonable probability of innocence creates reasonable doubt 1109 CHAPTER LXVI. Agency. 1467. What constitutes an agent 1 1 10 1468. Special or general agent 1110 1469. Principal estopped to deny agency, when person placed in posi- tion from wliich another is justified from usage and nature of business in believing agent authorized 1111 V Vi TABLE OF CONTENTS. SECTION PAGE 1470. No ratification without knowledge of facta 1111 1471. Katification with knowledge — Cannot disavow part 1111 1472. Right to recover where double agency known to principal 1112 CHAPTER LXVII. Aider and Abettor. 1473. Must be conspiracy or overt act 1113 1474. One present without knowledge of conspiracy 1113 1475. Aider and abettor — Charge in case of homicide 1114 CHAPTER LXVIII. Alibi. 1476. Alibi defined— Proof thereof 1116 1477. Character of proof 1116 CHAPTER LXIX. Alienation of Affections. 1478. Consortium — Right of 1118 1479. Malice as an ingredient of the wrong 1119 1480. Marital right gives exclusive right of intercourse 1119 1481. Act or acts of defendant must be malicious 1119 1482. Conduct of husband 1120 1483. Acts of parents — Riglits and liabilities 1121 1484. Alienation by adulterous relations with wife 1122 1485. Alienation of affections 1126 1486. Claim of mistreatment of wife by husband 1130 1487. Connivance of or encouragement by plaintiff of alienations — Or his own misconduct bars recovery 1131 1488. Preponderance of evidence only, essential 1131 1489. Burden and character of proof of adultery 1132 1490. Measure of damages 1 132 CHAPTER LXX. . Animals. 1491. Owner of domestic animal not liable for injury when it is rightfully where it may be, unless it is vicious — Rule otherwise when animal breaks close of another. 1134 TABLE OF CONTENTS. Vii SECTION p^QE 1492. Liability of owner of domestic animal trespassing on lands of another 1 135 1493. Ferocious dog at large — Knowledge of its character — What constitutes keeping of 1135 1494. Scienter — Proof of 1 130 1495. Defense that dog fastened on premises 1137 1496. Liability of tresspasser leaving gateway so horses escape into another field, where injury done in fighting with strange horses 1 137 CHAPTER LXXI. Assault and Battery. 1497. Assault and battery defined 1142 1498. Assault by teacher on pupil II43 1499. Assault and battery by railroad employee or flagman 1145 1500. When committed in self-defense 1 149 1501. Force used in repelling assault, not nicely measured 1150 1502. Defense of self and child — Force used 1150 1503. How far one may go in protection of self or child 1151 1504. One provoking assault may recover if he afterwards withdrew. 1151 1505. Damages recoverable in civil action 1152 1506. Efi'ect of conviction in criminal prosecution on civil damages. 1153 CHAPTER LXXII. Assault with Intent to Kill. 1507. Assault with intent to kill — Complete charge, embracing 1155 1508. Assault with intent to kill — Includes lesser grades 1163 1509. Assault — Battery — Intent 1 163 CHAPTER LXXIII. Attorneys. 1510. Breach of contract of employment — Contingent fee in collec- tion of account 1 164 1511. Presumption from employment of an agreement to pay reason- able compensation 1164 1512. Action to recover fees, governed by same principles as other employments 1 165 1513. Quantum meruit when no sj)ecial contract 1165 1514. Facta to be considered in determining value of services 1165 1515. Expert opinion as to value of services 1166 Viii TABLE OF CONTENTS. CHAPTER LXXIV. Automobiles — Injuby by. section page 1516. Relation of employer, or owner and chauffeur 1170 1517. Liability of owner, who hires auto with his licensed chauffeur, to another to be used for definite time, and for specified fee 1170 1518. Master loaning servant to another becomes liable for his acts. 1171 1519. Liability of garage owner who hires out automobile with driver, where hirer exercises no control over driver except to give directions as to route 1172 1520. Duty of one operating a sight-seeing automobile 1172 1521. Liability of owner for injury from acts of driver alleged to have taken car under express or implied authority for taxi-service, denied by owner 1172 1522. Ownership of machine and operation thereof by servant em- ployed for that purpose create prima facie liability — But under general denial the burden is on plaintiff to prove that such servant was engaged in business or service of master 1177 1523. Injury to person while crossing street from collision with automobile running at high rate of speed — Contributory negligence of plaintiff — A complete charge 1178 1524. Driver must anticipate meeting pedestrian at street crossing. 1185 1525. Duty of driver to give signal at street crossing, and to adopt other precautions 1186 1526. Duties of drivers as to speed — The statute 1186 1527. Same — ^Violation of statute prima facie negligence — Not con- clusive 1 187 1528. Duties of drivers in meeting others driving in the street — Reasonable look-out — Control of machine 1187 1529. Driver, keeping lookout, having car under reasonable control, may assume pedestrian will not suddenly turn backward. 1188 1530. Pedestrian going unexpectedly in front of auto 1189 1531. Warnings given pedestrian causing bewilderment 1189 1532. Driver running excessive rate of speed approaching crossing — Gives jio signal — Pedestrian placed in sudden danger — Not negligent if injudicious choice made between hazards 1 190 1533. Automobile lawful means of conveyance — Equality of right between driver and pedestrian — Another form 1 192 1534. Correlative duties of driver of auto and pedestrian 1192 1535. Ordinance as to passing vehicles and carrying lights — How considered 1 193 1536. Operator of auto may assume persons at street crossing will exercise ordinary care 1194 TABLE OF CONTENTS. IX SECTION PAGE 1537. Driver of auto and of other vehicle both negligent — Concurrent negligence — Proximate cause 1 194 1538. Whether driver of auto acting as agent or servant of owner — Or whether person hired it for liimself and operating it for himself alone 1195 1539. Equality of riglit of street railway and driver of automobile — Relative duties of each — Familiarity of driver with crossing 1 196 1540. Duty of driver of auto at railroad grade crossing 1198 1541. Driver of automobile placed in sudden peril through neglect of another 1199 1542. Injury by collision between two automobiles — PlaintiflF charges excessive speed — Defendant counterclaims for injury to his machine by same collision 1199 1543. Injury to- passenger in automobile, the guest of one wlio hires from owner who furnishes chauffeur to driv« — Liability depending upon contract of hiring, as well as upon whether driver is engaged in the service and business of the owner 1212 CHAPTER LXXV. Bailments. 1544. Loss of goods by negligence of storagei company, whether oc- casioned by natural decay, or by negligence in mainte- nance of temperature 1225 1545. Liability of garage keeper for safety of automobile intrusted to him 1227 1546. Proprietor of garage l)ound to exercise supervision over employees to guard against wrongful taking out of stored auto 1228 1547. Liability of garage keeper for allowing customer's automobile to be taken out without authoritv 1228 CHAPTER LXXVI. Banks — Bank Deposits — Bank Ciikcks. 1548. Cashier authorized to receive deposits — Authority of president to do so l)y custom or usage 1230 1549. Measure of care required of directors of bank, in respect to acts of its officers 1231 1550. Bank estopped to deny authority of officers 1232 1551. Relation of bank directors to jnibiic — Liability for defaulting officers 1232 X TABLE OF CONTENTS. SECTION PAGE 1552. Liability of drawer of check 1233 1553. The nature of a check — Rules regulating rights and liabilities of parties thereto 1233 CHAPTER LXXVII. Bastardy. 1554. Bastardy — Instructions 1235 1555. Reputation of prosecutrix for truth and veracity 1237 1556. Reputation of defendant for virtue and chastity 1237 CHAPTER LXXVIII. Bigamy. 1557. Bigamy — Defined — The statute 1239 1558. Remarriage of wife before seven years absence of husband, without divorce 1239 1559. Common law marriage not basis for prosecution for bigamy.. .1240 1560. Domicile of divorced parties 1240 CHAPTER LXXIX. Bills and Notes. 1561. Burden of proof when consideration attacked 1241 1562. Genuineness of signature 1241 1563. Purchase before maturity without notice of illegal considera- tion 1242 1564V Consideration — Delivery — Denial of execution — Alteration — Expert testimony as to signature 1243 1565. Transfer of note after maturity 1245 1566. Endorsement in blank — Transfer before maturity 124.5 1567. Liability of surety on note — How revived — Effect of sub- sequent promise • 1246 1568. Extension of note — Consideration — Payment of interest in advance 1247 1569. Alteration of note — What constitutes — Adding words "with interest at per cent." 1247 1570. Alteration — By adding name of third person — Whether material or not 1247 1571. Alteration by inserting words "to be paid annually" 1249 1572. Demand and notice essential to hold endorser 1250 1573. Endorsement of note — Notice 1250 1574. When maker of note entitled to demand 12.il 1575. Forgery as a defense — Estoppel to set up 12.")1 TABLE OF CONTENTS. Zl CHAPTER LXXX. Bbeiach of Promise to Mabry. section page 1576. Contract of marriage 1252 1577. Breach of promise of marriage 1252 1578. What amounts to a breacii — Essentials as to time 1257 1579. Promise made in consideration of sexual intercourse 1259 1580. Acts of preparation for marriage 1260 1580a. Measure of damages 1261 CHAPTER LXXXI. Bribery. 1581. Bribery — State official — Aider and aliettor — Complete charge embracing 1262 1582. Solicitation of a bribe 1279 1583. Reputation of accusing witnesses 1284 1584. Bribery of city official — Form of complete charge in a criminal case — Embracing preliminary questions 1287 CHAPTER LXXXII. Broker's Real Estate Commission. 1585. Real estate commission — Action for recovery of 1.306 1586. Entitled to commission though owner declines to sell 1308 1587 Entitled to commission when owner enters into enforceable contract with purchaser 1308 1588. When broker a director of corporation purchasing property ... 1309 1589. Broker must show that he accomplished all required of him by the employment, that his efforts were efficient cause of sale — If not, and owner makes sale, no recovery can be had 1309 1590. Entitled to compensation when purchaser produced though owner conducts negotiations and sells on different terms. 1310 1591. Right of agent to commission when several employed — Purchaser produced must be client of agent first conduct- ing negotiations 1311 CHAPTER LXXXIII. Building Contracts. 1.592. Substantial departure therefrom witiioiit consent — Recovery for extras 1312 1593. Failure to do work in workmanlike manner ticcording to contract 1313 Xii TABLE OF CONTENTS. SECTION PAGE 1694. Substantial performance, except slight deviations 1314 1595. Deduction for unfinished parts 1314 1596. Owner estopped by conduct in acquiescence in work not done according to contract 1314 1597. Same — Acts showing knowledge of departure from contract. . 1315 1598. Same — Settlement without fraud or mistake 1315 1599. Contracts as to extras 1316 1600. Substantial performance of contract 1317 1601. Extras — Whether contract express or implied or work volun- tarily done 1318 CHAPTER LXXXIV. BUEGLABY. 1602. Burglary and larceny — Force necessary in 1321 1603. Burglary— Degree of force 1322 1604. Burglary of a chicken or henhouse 1322 1605. Burglary of dwelling house 1323 1606. Maliciously breaking and entering 1323 1607. Breaking and entering 1324 1608. Burglary of inhabited dwelling house 1324 1609. Must be in night time 1325 1610. Intent to steal 1325 1611. Intent to steal from railroad car 1326 1612. Burglary of railroad car — Proof of incorporation not necessary . 1326 1613. Entry into car , 1327 1614. Complete instructions to jury in charge of burglary of store- bouse embracing 1327 CHAPTER LXXXV. CoMMOx Cabriebs of Fbeight. 1615. Common carrier defined 1334 1616. Common law rule of liability of common carrier 1334 1617. Act of God defined — Inevitable accident 1334 1618. Liability of express company for loss of horse in shipping 1336 1619. Limiting liability by special contract — Burden of proof 1343 1620. Limiting common-law liability — Burden upon carrier to show loss within an exception 1343 1621. Xot an insurer as to time — Delay caused by unavoidable accident 1344 1622. Duty of carrier as to delivery of goods 1344 1623. Nondelivery of property — Presumptive evidence of loss by negligence 1345 TABLE OF CONTENTS. xiii SECTION PAGE 1624. Duty of express companies as to delivery of goods 1345 1625. Carrier of goods — Rule as to limitation of liability 1346 1626. Liability by contract for loss on connecting lines 1346 1627. Duty with regard to baggage — Delivery, etc 1346 1628. Liability in absence of special contract I347 1629. Contract for transportation of vegetables 1347 1630. Delay in delivery of goods — Exempting liability in bill of lading 1348 1631. Bill of lading — EflFect of between carrier and shipper — Con- ditions in — Waiver of I349 1632. Railroad company — Duty to furnish cars for transportation. . .1350 1633. Same, continued — Duty of company to place cars in suitable places for unloading I35I 1634. Same continued — Duty of company to provide side tracks 1352 1635. Same continued — May make reasonable rules concerning the car service I353 1636. Same continued — Reasonableness of rules — How determined. .. 1353 1637. Same continued — Recovery for car service — Effect of rulo4 regulating charges for ear service beyond the period allowed for unloading I353 1638. Carrier bound to use ordinary care in shipment of live stock when there is delay 1355 1639. Cold weather— Not act of God 1 355 1640. Baggage — What constitutes 1356 1641. Baggage — Liability of carrier, that of an insurer 1356 CHAPTER LXXXVI. Compromise, Settlement and Release. 1642. Compromise of cause without knowledge of counsel — Claimed to have been induced by fraud — Burden and proof 1357 1643. Claim of void release of cause for personal injury may be set up in reply and submitted to jury — Instructions 1358 CHAPTER LXXXVII. Contracts. 1644. Meeting of minds •. 1362 1645. Contract by ratifications wiien no meeting of minds in the beginning 1362 1646. Consideration 1363 1647. Contracts express or implied 1363 1648. Contract made under duress or eomi)ulsion 1364 1649. Consideration — Exclusive right to patented invention 1364 ^Y TABLE OF CONTENTS. SECTION ^^^^ 1650. Words applied to trade— "New dress" for paper— Construction for jury 1365 1651. Implied contract to be found by jury , 1366 1652. Parol evidence to vary written instrument 1366 1653. Latent ambiguity in contract 1367 1654. Latent ambiguity in oral contract 1368 1655. Defense of illegality of contract 1369 1656. Meaning of contract to construct and finish a thing of the "finest quality," for the jury when 1369 1657. Action for breach of covenant of lease — For failure to repair, maintain and surrender premises — "Reasonable use" — "Reasonable wear" 1370 CHAPTER LXXXVIII. Contracts — For Personal Services. 1658. Action on contract for support of parent 1375 1659. Contract to perform services by one taken into family when a child must be shown 1377 1660. Services of child for parent — Capacity of parent to make con- tract — Child as member of family 1377 1661. Contract of service made by correspondence 13S0 1662. Contracts, express or implied — Proof of 1380 1663. Contract for services when implied 1381 1664. When the relation is that of brother, or sister or parent and child, burden upon one claiming relation of contract of service to prove it, and to rebut presumption that it was gratuitous 1381 1665. Service rendered by grandchild to grandparent 1382 1666. Contract for services between employee and corporation 1385 1667. Action for services by wife against executor of deceased father-in-law 1386 CHAPTER LXXXIX. Damages — In Personal Injury. 1668. Measure of damages in persona^ injury — Medical attendance. . 1389 1669. Same — Another briefer form 1390 1670. Damages for injury to minor in suit by next friend 1390 1671. Duty of injured person to care for himself — Employment of physician as affecting damages 1391 1672. Damages recoverable by husband for injury to wife 1391 1673. Measure of damages where special defense on account of physical condition of plaintiff 1392 1673a. Same continued — Amount of compensation 1393 TABLE OF CONTENTS. XV CHAPTER XC. Dangerous Premises, section page 1674. Injury to person walking along sidewalk and privately paved part of premises connected therewith by falling into hole diiectly in front of cellar window 1394 CHAPTER XCI. Death by Wrongful Act. 1675. Action for death by homicide — Self-defense 1400 1676. Same, continued — What is excusable homicide 1401 1677. Same, continued — Right of self-defense — Justification 1401 1678. Action for death by wrongful act — By administrator of wife, killed at steam railroad crossing, while riding with husband, who is driving team — Railroad crossing 1402 1679. Measure of damages for death of husband — Wife and children as beneficiaries 1410 1680. Another form as to measure of damages for death of husband. . 1410 1681. Damages for death of young man, to mother, sister and brother. 1411 1682. Intelligent discretion to be used in assessment of damages — Parents 1411 168.3. Damages resulting to husband and children for death of wife. .1412 1684. Measure of damages for death of child — Mental pain and anguish not elements 1413 1685. Measure of damages — Earning capacity 1413 CHAPTER XCII. Deeds. 1686. Execution of, under duress — Threats 1415 1687. Capacity to make — Weak mind — Old age — Declarations of grantor admitted for what purpose 1415 1688. Covenant against encumbrances — What constitutes breach — Damages recoverable 141G 1689. Mental capacity of grantor 1418 CHAPTER XCIII. Druggist. 1690. Ordinary degree of skill required 1420 XVI TABLE OF CONTENTS. CHAPTER XCIV. Dynamitk — Unlawful Use or Possession of. section page 1691. Having possession of dynamite for unlawful use — Unlawfully depositing same 1422 CHAPTER XCV. Ejectment — Adverse Possession. 1692. What constitutes adverse possession 1430 1693. It need not be held under color of title 1431 1694. Meaning of continuous possession 1431 1695. Adverse possession — Occupation must be of some well-defined limits 1432 1696. Lines between owners 1432 1697. Abandonment — What constitutes 1433 1698. Adverse possession — Must extend to what 1433 1699. Mistake in boundary line — Nature of occupancy 1434 1699a. Declarations as to ownership 1434 CHAPTER XCVI. Embezzlement. 1700. Venue where laid — Where intention to commit is formed 14.36 1701. ^y treasurer of board of education 1437 1702 Using funds intending to repay 1437 1703. By public officer elected or appointed 1438 1704. By agent of insurance company 1443 CHAPTER XCVII. Eminent Domain — Appropriation of Property. 1705. Right of way for railway purposes — Constitutional provisions. 1447 1706. Rules for assessing compensation 1448 1707. Opinions of witnesses as to value of property 1451 1708. Expert testimony 1452 1709. Assessment of compensation for land — Rules concerning — Market value 1452 1710. Right of public to improve and iise a public highway — Con- struction of railroad in highway a new use 1455 171 1. Appropriation for telegraph line 1456 1712. Drainage law — Object of 1456 1713. What use will justify taking private property for drainage ... 1457 TABLE OF CONTENTS. XVii SECTION- p^^jj, 1714. Same — Benefits to private individuals for cultivation not sutficient 1458 1715. Drainage proceedings— Burden as to questions of use 1459 1716. Same, continued — Number of petitiojiers 145<) 1717. Same, continued — Determination of line of construction of ditcli — Considerations to be observed 1460 1718. Same continued — Compensation for lands taken 1460 1719. Same continued — View of route oy jury 1461 CHAPTER XCVIII. Estoppel. 1720. Defined I463 1721. Conduct must cause prejudice or injury 1463 1722. Intent to mislead not essential 1464 1723. Statements must be acted upon 1464 CHAPTER XCIX. Evidence — Witnesses. 1724. General instruction as to the evidence 1465 1725. Preponderance and weight of the evidence 1467 1726. Evidence and testimony distinguished— Weight of evidence may be shown by greater or less number of witnesses, as the jury may view it— Weight may be shown by circum- stances or inferences— Credibility to be decided before weight to be determined 1469 1727. Declarations, statements or admissions- How considered — Civil cases 1470 1728. Declarations against interest in criminal case 1470 1729. Inferences drawn from conduct of parties and omission to produce evidence 14^2 1730. Credibility of witnesses j4-2 1731. Impeachment of witness— What constitutes reputation 1473 1732. Credibility of witnesses— Jury to consider physical conditions, possibilities or impossibilities 1476 1733. Jury not at liberty to indulge in capricious disbelief of testimony J4y^ 1 734. Circumstantial evidence — Criminal cases I477 1 735. Same — Another form 14'7q 1736. Circumstantial evidence — Continiu'd 1478 1737. Negative and affirmative evidence 1479 1738. Weight given medical expert testimony as to personal injury.. 1480 1739. Medical testimony as to nature of human blood 1480 XYin TABLE OP CONTENTS. SECTION PAGE 1740. Uncorroborated testimony of accomplice 1481 1741. Previous good character in criminal case 1482 1742. Conduct importing guilt 1483 1743. Testimony as to recognition of accused 1484 1744. Flight of accused 1484 1745. Consideration of improper unanswered questions by jury 1485 1746. Conflict in testimony 1485 1747. Reasonable doubt I486 1748. Drunkenness no excuse for crime — May be considered for what purpose 1487 CHAPTER C. False Claims — ]\Iakixg Out and Presenting to Public Officers. 1740. False claim under Code sec. 13105 1489 1750. Legal knowledge of a fact defined 1489 1751. Intent— Proof of 1490 1752. False claim, bill or account — Presented by state officer 1492 CHAPTER CI. " False Imprisonment. 1753. False imprisonment defined 1498 1754. Another delinition — Means of accomplishing detention or res- traint otiier than by formal arrest 1498 1755. Diflterent form of definition — Detention while under investiga- tion at police station 1499 1756. Trespass to person — E^lements — Definition 1500 1757. Burden on plaintiff to prove unlawful restraint 1500 1758. Arrest and imprisonment — What constitutes 1501 1759. Arrest by officer without warrant 1501 1760. Distinction between felonies and misdemeanors 1502 1761. Person arrested without warrant can not be held longer than is necessary to obtain warrant 1502 1762. Arrest of witness without process 1502 1763. Liability of several arresting officers 1503 1764. Probable cause l-'03 1765. Probable cause — Right of officers of police department to make investigation 1504 1766. Responsibility of chief of police if person brought in for investigation, under suspicion for a felony, but without formal arrest, where there is a formal detention by mistake 1505 1767. Damages 1^06 TABLE OF CONTENTS. XIX SECTION PAGE 1768. False arrest and detention of guest at hotel supposed to be using room for immoral purposes 1507 1769. False imprisonment where fact of imprisonment and discharge conceded 1515 CHAPTER. CII. Fraud — False Repeesextatioxs, etc. 1770. Fraud not presumed — Burden of proving 1519 1771. Remedies for fraud — Rescission and restoration 1520 1772. Fraud defined 1520 1773. Proof of fraud 1521 1774. Contract to be rescinded and tender made 1522 1775. Election to rescind within a reasonable time for the jury .... 1.522 1776. Representation must be material 1523 1777. Misrepresentation by concealment 1523 1778. False representations without knowledge of truth or falsity. .. 1524 1779. Ingredients of actionable fraud — Intent to deceive — Puffing and commendation — Complainant must be misled 1524 1780. Misrepresentation to existing or past fact 1526 1781. Fraudulent promise coupled with present intent not to fulfil.. 1526 1782. Fraudulent promise not to engage in business 1526 1783. Representation as to value 1527 1784. Jury to find what representations were made — Must be relied upon 1527 1785. Fraud on old person — Wliat constitutes — Proof 1529 1786. Fraudulent purchase of goods — Essential elements of fraud — Must have knowledge of falsity — Stating what is believed to be true — Statement without knowledge of truth — Must intend to deceive — Must be material — Party must be misled and damaged 1530 1787. Fraudulent purchase of goods, continued — Vendor may abide by or rescind contract 1531 1788. Liability of corporation for fraudulent representations of agents 1531 1789. Fraudulent purchase of goods — Principal can not repudiate fraud of agent and accept benefit of contract 1532 1790. Fraudulent purchase of goods — Power of agent to make state- ments as to credit and financial condition of principal in purchase of goods 1532 1791. Purchase of goods with intent not to pay for them — Insolvency of purchaser concealed 1533 1791a. Mercantile agency — Liability for false reports as to financial standing 15.35 1792. Transfer of property by one in debt without consideration 1536 XX TABLE OF CONTENTS. 8ECTI0N PAGE 1793. False representation in sale of horse as to being vicious — Purchaser injured while driving — EfTect of his own knowledge and care 1536 1794. Same, continued — Vendor's knowledge of defects — Duty to give notice 1538 1795. Same, continued — Measure of damages 1539 1796. Representations assumed to be within one's knowledge, but truth not known — Recklessly made 1540 1797. Fraud in sale of land — Preventing examination of land 1540 1798. Fraudulent representations as to location of city lot 1541 1799. Whether son fraudulently persuades parent to make beneficial dispositions of property to him 1541 1800. Representations as to value of stock— Such statement when actionable — Mere opinions 1542 1801. Fraud in obtaining insurance policy alleged by defendant 1543 1802. Measure of damages when plaintiff exchanged land for merchandise — Market value of land not considered 1548 1803. False representation concerning merits, working and adap- tability of patented machine — Claimed by cross-petition. . 1549 1804. Fraud in sale of stock in proposed company 1555 1805. Fraudulent declaration of dividends by directors of corporation — Action against directors for loss by purchaser of stock 1563 CHAPTER cm. Gambling Contbacts. 1806. Contracts for sale of grain to be delivered at future day 1572 1807. Fact that one party acts as commission merchant does not change relation 1574 1808. Action for money lost by a person dependent for support upon the person losing money 1575 CHAPTER CIV. Gift. 1809. Gift inter vivos 1578 1810. What constitutes valid gift 1578 1811. Retaining dominion over gift 1579 1812. Gift of mortgage or money represented by mortgage 1579 CHAPTER CV. Grand Jury. 1813. A concise charge to the grand jury 1582 1814. Introductory 1588 TABLE OF CONTENTS. XXI SECTION PAGE 1815. Origin of institution of grand jury 1588 1816. Grand jury to institute criminal proceedings as well as to guard against unjust accusations 1589 1817. Oath, and responsibility imposed thereby 1589 1818. Special charge as to bucket-shops — Gambling in margins 1590 1819. Character of evidence to warrant indictment 1592 1820. Legal evidence only to be considered 1592 1821. Looking at guilt and innocence 1593 1822. Scope of inquiry 1593 1823. Secrecy must be observed — Another form 1595 CHAPTER C\^. Harboring Females. 1824. A house of ill fame defined — Harboring a female of good repute in — "Harboring" defined 1597 1825. "Good repute for chastity" defined 1597 CHAPTER CVII. HOMICIDB ^IMUKDER IN THE FiRST AND SECOND DEGREE AND MANSLAUGHTER. 1826. Preliminary statement concerning duty and obligation of jurors. 1600 1827. The indictment 1002 1828. Plea of defendant — Not guilty and of insanity 1602 1829. Burden of proof on plea of not guilty 1602 1830. Burden of proof of insanity 1602 1831. Degree of evidence required to prove insanity — Preponderance. . . 1603 1831a. Insanity ] 603 1832. Presumption of innocence 160.'> 1833. Rea.sonable doubt defined and explained 1605 1834. Circum.stantial evidence 160{! 1835. Jurors must reason together 1607 1836. Credibility of witnesses 1608 1837. Reputation of defendant for peace and quiet 1609 1838. p]ssential elements to be proven 1009 1839. Charge of first degree murder — Also includes lesser degrees 1610 1840. Law as to homicide — Murder in first and second degree, and manslaughter defined 1610 1841. Intent 1611 1842. Malice 1612 1843. Deliberation and premeditation 1614 1844. Murder in second degree — Distinguished from murder in first degree 1615 1845. Manshnighter 1616 1846. Same — Provocation sullicient to reduce to manslaughter 1616 XXH TABLE OF CONTENTS. SECTION PAGE 1847. Adequate or reasonable provocation — Another form 1618 1848. Provocation — Reasonable suspicion of infidelity of wife not suf- ficient 1619 1849. Assault and battery and assault defined 1619 1850. What is essential to conviction in the finst degree 1620 1851. An act feloniously done explained 1620 1852. Inflicting mortal wound with deadly weapon — Inference from.. 1620 1853. Person intends natural consequences of his act 1621 1854. If not found guilty of murder in the first degree, may be of second 1621 1855. May find guilty of manslaiighter, when 1622 1856. May find guilty of assault and battery 1622 J857. Defendant as an aider and abettor 1623 1858. Defendant, though guilty of no overt act, entered into conspiracy — Aider and abettor 1624 1859. Intent to kill in murder in second degree — Use of deadly weapon. 1626 1860. Malice — The character of weapon used to be considered 1627 1861. Manslavighter — Xo malice in — Provocation to reduce 1627 1862. Provocation — All surrounding circumstances to be considered- — Cooling time 1628 1863. Malice in murder — Another form 1628 1864. Malice— Another form 1630 1865. "Deliberation" and "premeditation" in murder — Another form.. 1631 1866. "Purposely," "unlawful" and "feloniously" 1632 1867. Proof of purpose to kill, malice, deliberation and premeditation. . 1633 1868. Person presumes reasonable consequences of his acts 1634 1869. Manslaughter — What is — Provocation 1635 1870. Manslaughter — Person present doing no overt act not aider. .. .1636 1871. Self-defense — Whether defendant believed he was about to be robbed — Burden of proof on defendant 1636 1872. Self-defense in self-protection against riotous strikers attempt- ing to stop defendant from working 1639 1873. Self-defense, in ejecting one from saloon 1642 1874. Self-defense — Wliat constitutes — Another form 1645 1875. When a person may take the life of an assailant in self-defense — A different form — Giddings case 1647 1876. Right to repel assault 1650 1877. Son may defend parent 16.50 1878. Justifiable homicide 1651 1879. Common defense from attack 1652 1880. Evidence of previous character and reputation in homicide 1652 CHAPTER C\TIT. IlfSANITY. 1881. Insanity — A comprehensive presentation 1654 1882. Insanity defined 1658 TABLE OF CONTENTS. XXIU SEXmON PAGE 1883. Insanity as a defense 1660 1884. Burden of proving insanity 1662 CHAl^TER CIX. Insurance — Fire, Accident, Life. 1885. Burden on plaintiff to prove loss — Proofs of loss — Or waiver of provisions by defendant 1664 1886. Waiver of proofs of loss — Burden of proving authority of agent on plaintiff — Instructions as to waiver of conditions — By agent 1665 1887. Conditions as to time of proof of loss — And proof — When right to sue accrues — What is a sufficient notice — Notice and proof of loss — Waiver of — How made 1667 1888. Waiver of proofs may be inferred from acts of company — Mere silence, nor sending agents to investigate, nor attempt to compromise will not amount to waiver — What other acts in connection therewith will 1668 1889. Proof of loss — If policy of insurance destroyed it is duty of company to furnish copy or information — Failure on its part may estop company from claiming proofs not in time 1670 1890. Burden of proof in action for loss by lire — Proofs of loss, etc.. 1671 1891. Insurance of partnership property — Was partnership dissolved at time insurance issued — Representation as to ownership of property 1672 1892. Vacancy of property — Breach of condition as to 1673 189.3. Wlien is a building vacant or unoccupied 1675 1894. Vacancy — Waiver of forfeiture by reason of vacancy of prem- ises — Burden of proof 1676 1895. Total or partial loss 1677 1896. Compromise of loss obtained under duress 1678 1897. Evidence as to value of property as reflecting on charge of destroying property 1678 1898. Cancellation of policy 1679 1899. Rescission — Necessary party to suit for 1680 1900. Defense of false representations as to value of property — Burden of proof 1680 1901. Defense when fraudulent concealments or misrepresentations were made 1682 1902. False representations as to other insurance 1683 1903. Same, continued — Return of premium 1685 1904. Fraudulent proofs of loss 1685 1905. Fire insurance — Ownership of property, insurable interest 1685 Xxfv TABLE OP CONTENTS.' 81ECTI0X PAGE 1906. Fire insurance — Defense as to provision requiring production of books for examination 1686 1907. Defense — That large quantities of oil and petroleum were stored, and drawn at night in violation of policy 1687 1908. Defense — That fire was caused by willful act of procurement. . .1688 1909. Insurance on steamboat — Negligence of owner's agent — Sea- worthiness of boat 1688 1910. Accident insurance — Proof of claim 1689 1911. Accident insurance — What necessary to recovery for death upon 1690 1912. Consideration — Adequacy or sufficiency not inquired into 1691 1913. Insurance — Application for — Statements, how treated 1691 1914. Insurance — Life — Misrepresentations made by insured 1692 1915. Same, continued — What constitutes waiver of misrepresenta- tions 1693 1916. Concealment of material fact concerning insurance, or subject thereof 1693 CHAPTER ex. Intoxicating Liquor. 1917. Action by wife against person selling or furnishing liquor to intoxicated person — Liability of person furnishing 169.5 1918. Evidence of sales made after suit 1697 1919. Who is keeper of place 1697 1920. Defendant must know of habit of intoxication — Notice — Damages 1697 1921. Selling and furnishing intoxicating liquors to habitual drunk- ards — What constitutes a sale 1698 1922. Same, continued — Intoxication defined 1699 1923. Same, continued — Habitual drunkard defined 1700 1924. Sale of intoxicating liquors within two miles of agricultural fair 1701 1925. Same, continued — What constitutes a sale 1701 1926. What constitutes sale within two miles of agricultural fair. . . . 1702 1927. What is intoxicating liquor 1703 1928. What is an agricultural fair 1703 1929. Sales by agent or barkeeper 1703 CHAPTER CXI. Landlord and Tenant. 1930. Duty of landlord to repair walks — Remaining under his control. and part of common walk 1705 1931. Same, continued— Defects in walk known to plaintiff" 1706 1932. WTiether premises rendered unfit for occupancy on account of fire — So that rent may not be collected 1707 TOLEDO, OHIO. TABLE OF CONTENTS. XXV CHAPTER CXII. Labcent. PAGK 1938. SECTION 1933. Larceny defined I7O9 1934. Grand larceny — Essential or material allegatiojis to be proved. .1710 1935. What constitutes a taking and carrying away 1710 1936. Return of property upon being discovered does not change offense I7II 1937. What constitutes larceny of property where owner voluntarily parts with its possession 1711 tirand larceny committed by destruction of property — Intent — How proved 1712 1939. Larceny — Of lost money — What essential to constitute larcetiy by finder 1713 1940. Value of property must be proved 1714 1941. Larceny of money found by undertaker on dead body drowned in flood 1714 1942. Larceny — Short charge in I7I8 CHAPTER CXIII. Libel and Slander. 1943. Libel per se — Defined 1721 1944. Libel defined — False and malicious publication injuring repu- tation 1721 1945. Libel — Another definition 1722 1946. Constitutional limitation of liberty of speech — Scope and extent thereof 1723 1947. Constitutional right of liberty of speech and of press — Another form — May not trifle with right of reputation 1724 1948. Reasonable criticism may be made by newspaper 1725 1949. Duty of jury to decide whether it has libelous tendency and eflFect — When 1 72t; 1950. Publication construed by court as lil>elous per se 1727 1951. Jury to find whether article i)ublished of plaintiff 1727 1952. Wliat is a publication, and who are liable as publishers 1727 1953. Truth as a defense — To be as broad as charge 1729 1954. Innuendo — Meaning ascribed thereby, for the jury 1729 1955. Proof of financial condition of defendants 1730 1956. Good faith of defendants in making publication — To rebut malice I73I 1957. Malice in law — Malice in fact 1732 1958. Damages — Compensatory and punitive 1733 1959. Publishing information received from others — Liability there- for 1735 Xxvi TABLE OF CONTENTS. SECTION PAGE 1960. Publication made to whom 1735 1961. Slander — Defamatory words must be spoken to some person.. .1736 1962. Words when to impute a crime 1736 1963. Libel — Charge of altering certificate — Meaning of words for jury 1"37 1964. Privileged communications — Whether extended to member of examining school board 1737 1965. Libel — Reports of judicial proceedings — Privilege 1740 1966. Libel — Publication from report of examining committee of county treasurer 1741 1967. Comments upon report made with good motives, etc 1742 1968. Statements made to officer in discovering crime, privileged. .. 1742 1969. Construction of words and understanding of meaning by hearers 1743 1970. Effect of adding excusable words 1744 1971. Libel — Meaning of words for jury 1744 1972. Libel — Meaning of words 1745 1973. Kinds of malice in slander 1745 1974. Damages — Kinds of 1746 1975. Damages in libel per se — When testimony rebuts legal malice. .1747 1976. Libel — Counsel fees allowed in compensatory damages 1749 1977. Extent to which libel is published as affecting damages 1749 1978. What constitutes libel to one in his business 1750 1979. Measure of damages to one in his business 1751 1980. Same, continued— Character and extent of business, and business reputation to be considered 1752 1981. Same, continued — Effect of absence of malice — Mitigating cir- cumstances — Effect of acting upon fairly reliable infor- mation 1'7^3 1982. Measure of damages— Effect of agreement to accept retraction of publication 17-'''* 1983. Slander of candidate for office 1755 1984. Libel against one in his business as a bricklayer and contractor — By a bricklayer's union 1756 1985. Same, continued— Measure of damages 1758 1986. Damages to be awarded in general 1760 CHAPTER CXIV. Malicious Prosecution. 1987. 1988. 1989. 199a. Essential facts to be found— Burden of proof 1763 Probable cause defined *7o4 Malice may be inferred from want of probable cause 1765 Advice of counsel ' TABLE OF CONTENTS. XXVll SECTION PAGE 1991. Discharge by examining magistrate — Prima faci-c evidence of want of probable cause 1766 1992. Prosecution must have terminated 1767 ls>i(3. Measure of damages — Compensatory — Counsel fees — Exemplary damages 1767 1994. Malicious injunction — Probable cause for commencing 1768 1995. Malicious prosecution — Complete charge 1770 CHAPTER CXV. Malpractice. 1996. Care required of a physician 1775 1997. Duty of physician to use reasonable and ordinary care — Another form 1776 1998. Contributory negligence of patient 1776 1999. Liability of surgeon for performing operation without consent. .1777 2000. Liability of physician for injuries caused by use of X-Raya. . . . 1780 CHAPTER CXVI. Manslaughter. 2001. Manslaughter — By negligent driving of automobile — A complete form of instructions 1781 2002. Charge of manslaughter by one attempting to arrest another for felony 1789 2003. Negligent driving of automobile as forbidden by statute con- stitutes manslaughter 1793 2004. Contributory negligence of deceased no defense in manslaughter caused by neglect of driver of automobile 1794 CHAPTER CXVII. ^Marriage, 2005. What constitutes marriage 1795 2006. Common law marriage 1796 2007. Legitimacy of cliildren 1799 2008. Marriage in another state forbidden by laws of such state — Followed by cohabitation in Ohio 1800 CHAPTER CXVIIT. Master and Servant — NEOLiOEnvcE of MAsnat. 2009. General duty of master to servant 1803 2010. Master must exercise ordinary care in selecting servants 1803 XXVin TABLE OP CONTENTS. SECTION PAGE 2011. Duty of rairoad company to use reasonable care to furnish adequate number of competent employes to manage eugine and trains of cars 1804 2012. Whether failure to furnish adequate number of employes is proximate cause of injury 1805 2013. If servant knew there was an inadequate force of employes, and continues in service, he assumes risks 1805 2014. Duties of master — Assumption of risks — General scope and extent of doctrine 1806 2015. Servant assumes risk of negligence of fellow servant 1808 2016. If master uses ordinary care in selecting servant, who subse- quently becomes incompetent, knowledge of master essen- tial 1808 2017. Servant does not assume risk of negligence of a servant incom- petent when entering employment 1809 2018. Servant does not assume risk of negligence of one occupying relation of principal 1809 2019. Insufficient force — Risk from assumed, when 1809 2020. Fellow-servants — Who are — When one placed in control of an- other 1810 2021. Rules for determining who is co-employe or vice-principal — Brakeman and foreman 1811 2022. Respondeat superior — Disregard of orders of superior servant — Effect of 1812 2023. Fellow servants — Conductor and brakeman 1812 2024. Relation between engineer and train dispatcher 1813 2025. Acts done by servant at request of a fellow-servant — Liability of master 1814 2026. Obvious danger — Acts done by order of superior servant 1814 2027. Warning of danger by fellow-servant 1815 2028. Knowledge of danger unknown to master — When danger known to servant 1815 2029. Knowledge of dangerous methods amounts to acquiescence and assumption of risks 1816 2030. Knowledge of work and assumption of risks 1816 2031. Duty of railroad conductor 1816 2032. Railroad company deemed to have knowledge of defect — Burden of proof on company to rebut 1817 2033. Duty of railroad company as to inspection — Defect in brake- staff " 1818 2034. Burden of proof of contributory negligence on defendant unless plaintiff's own testimony raises inference 1821 2035. Contributory negligence considered with reference to directions of master 1822 2036. Contributory negligence of servant of railway when slight as compared with negligence of master — Present statutory rule 1822 e.^..^ OP CONTENTS. XXIX PAGE fiECTION 2037. Servant injured while working on derrick car— Negligence by running engine into same— Without disconnecting ma- 1823 chinery on such car '/038 Death of engineer from derailment of train 1829 2039. Failure to warn and instruct servant and to sufficiently light machinery— Injury to servant in operating power shears. 1832 2040. Injury caused "by defective guy supporting derrick 1835 2041. Railroad company may make rules governing conduct of em- ployee—Duty of employee with reference to 1840 2042 Liability "of railroad company for violation of rules by em- r 1841 ployee '^ 1841 2043. Measure of damages 2044. Injury to child of employee _ 2045 Joint' occupancy of sidetrack by two companies— Relation of servants of one company to the other— Injury to servant 1842 by failure to inspect track ■ 2046. Relation of servant and agency may be inferred from facts and circumstances CHAPTER CXIX. Mob— Liability of County fob Injury by. 2047. Liability of county for injury from mob under statute 1845 CHAPTER CXX. Municipal Cobpobations— Stkeets— Sidewalks- Change of Grades— Sewers. 2048. Dedication of property for public street— Requisites of 1851 2049. Interest of abutting owner in street— Ingress and egress 18d2 2050. Establishmejit of street by general use, or prescription 1853 2051. Streets may be improved 1w meet public needs— Withi. reason- able discretion of municipality 18^ 2052. Must keep sidewalks and cross-walks open and reasonably safe— Municii)ality not an insurer IS^J* 2053. Pedestrians to use ordinary care in passing along streets— May assume city discharged its duty 18-'''* 2054. Defective street becomes a nuisance, when 185G 2055. When city liable for defects in streets— Constructive notice. . . . 1857 2056. Sidewalk" in defective condition for such length of time that city presumed to know it ■ ■ 2057. Not liable for mere slil)l)erineHs from snow or ice— Otherwise if danger from want of repair was enhanced by snow , . 185H and ice \ \^ XXX TABLE OF COX^ SECTION PAGE 2058. Though city not liable for mere slipperlness from ice or snow, otherwise if snow or ice allowed to accmnulate so as to become serious and noticeable obstruction — length of time allowed 1860 2050. Liability of municipality for injury resulting to traveler upon stone in street — Duty of traveler 1861 2060. City to keep sidewalks in reasonably safe condition for travel. .1862 2061. Injured party to show actual or constructive notice to city.. ..1863 2062. Streets and sidewalks to be kept in reasonable repair and free from nuisance — Must show actual or constructive notice. 1864 2063. Latent defect — Actual notice to be shown 1865 2064. Sewer system — Reasonable care required in construction, main- tenance and supervision — Providing safeguards to pre- vent backwater from sewer 1866 2065. injury from change of grade^ — IMirpose of a view of premises. . . 1867 2066. Change of grade within authority, and without negligence. ... 1867 2067. Change of giade — Improvements made with reference to estab- lished grade — Liability for injury from change of grade. 1868 2068. Change of grade — Statute as to — Rwiuirements of owner as to claims 1868 2069. Change of grade — Requirements as to files and surveys — Re- liance uj)on by abutting owner — Failure to file claim — Skill required of owner — Reliance upon information fur- nished by engineer 1869 2070. Change of grade — Plans and profiles — Owner may rely upon information and explanation by engineer 1871 2071. Change of grade — Adopting county road as street 1871 2071a. Change of grade — Improvement made before grade established is at one's own peril 1872 2072. Change of grade — Rule as to unreasonable grade 1873 2073. Change of grade — A\'hether or not premises abut upon improve- ments as affecting claim for damages 1874 2074. Reasonableness of grade of street — \Yhat should be considered in determining 1875 2075. Change of grade — Recovery of interest on damage 1875 2076. Change of grade — Retaining wall — Whether necessary to pro- tect buildings 1876 2077. Streets — Cliange of grade — Damages — A different form 1876 2078. Change of grade after improvement — How proved 1877 2070. \Yhether improvement made in conformity to establishecl grade 1878 2080. CIiang(> of grade — Damages recoverable — Injury to building — Shrubbery — Access to premises — Value before and after change 1870 2081. Damages — Market value — Opinion evidence 1880 2082 Damages — Enhancement of value 1881 TABLE OF CONTENTS. JXX\ SECTION- PAGE 2083. Change of grade — Damages — Benefits 1882 2084. Damages to property owner by construction of street 1884 2085. Excavation in street^ — Negligence in making — Signals or lights — Right of travel subject to temporary obstructions or ex- cavations 1885 2086. Obstruction of sidewalk when building 1888 CHAPTER CXXI. Negligence — Gewebal Rules. 2087. General form of opening statement 1892 2088. Explanatory instruction to jury concerning its duty 1893 2089. Another form of opening 1894 2090. Negligence — Ordinary care — Defined 1895 2091. Negligence — Another definition 1896 2092. Negligence — A concise definition 1896 2093. Negligence exists only when there is a duty — Essential ele- ments to constitute 1897 2094. Imports wajit of attention 1897 2095. Negligence, active or passive 1898 2096. Ordinary care — Negligence — Relationship — Duty 1898 2097. No element of purpose of moral turpitude 1898 2098. Ordinary care under circumstances of peculiar peril — Intent not an element of negligence 1899 2099. When negligence is wanton 1900 2100. General duty to everybody becomes a particular duty to single person, when — Duty of owner of premises to keep them reasonably safe 1900 2101. Cause not negligent act alone, but injury proximately resulting from breach of duty 1901 2102. Burden of proving negligence 1<)01 2103. Ordinary care. 1901 2104. Ordinary care under circumstances of peculiar peril 1902 2105. No presumption of negligence against either party 1903 2106. Proximate cause defined and explained 1903 2107. Proximate cause — Another definition 1904 2108. Contributory negligence 1905 2109. No recovery when there is contributal, on the spur of the moment, go beyond v.hat they would approve in their delil)erate moments. It is one of the fundamental maxims of our profession, that the lawyer must be true to his client, loyal to his every interest, and that he must permit no stone to be unturaed in his efforts to see that the right of his client is properly vindicated, and if some do exercise more zeal than judgment, a zeal that never ouglit to affect you, and never ought to affect the court, ^'our 1097 1098 INSTRUCTIONS TO JURY. duty is to determine from the evidence in the case, what the facts are and where the rights of the parties lie, irrespective of party, without fear, feeling or favor. Both parties to this con- tention and the public look to you, gentlemen, to discharge your duty in a dignified, self-respecting manner, to discharge it so that confidence may be properly reposed in your final deter- mination of the issues submitted to you ; and that the dignity and righteousness of the administration of public justice by the court be exalted and loyally be upheld by you. The court as the representative of the law desires that you should enter upon your deliberations and discharge your duties in that spirit, and only in that spirit. Sec. 1457. Introductory in criminal case — Province of jury to ascertain truth — Province of court — Of attor- neys. You have heard the evidence offered before you on both sides of the case. From that evidence you learn what the facts are; you extract the trutlLs of the case. That is your province. But you are not able by those facts, those truths, alone, to arrive at a verdict; because there is something else that enters into the verdict, and that is the law that is applicable to the facts, to the truths. These two elements enter into and make up every verdict of a jury. It is from the court, and from no one else, that you receive the law. It is the express duty of the court — commanded b.y statute — to charge you as to the law of the case ; to inform and instruct you what are the elements of the crime of which the prisoner is accused ; what is the measure or quantity of the evidence neces- sary to convict him ; what evidence is insufficient to convict him ; and for what purpose some, or all, of the e\ddence introduced is to be applied by you ; and it is your imperative duty to con- form your findings to these instTuctions. It is the privilege of the court, in charging you, to sum up the evidence, to review the facts, in order to aid you in the ascertainment of the truth, but not to usurp your province and PROVINCE OF COURT AND JURY. 1099 prerogative; for there is nothing which the court may say tluit can absolve you from the duty of finding the facts for yourselves. Therefore if, in this charge, there should be a review of any of the facts, you will rememljcr that it is not binding on you in the manner that the instructions touching the law are, but tliat it is only advisory, to aid you ; and that you are left with entire freedom, and a perfect obligation resting upon you, to decide the questions of fact for yourselves. This is a case of unusual magnitude. It is not surprising, therefore, that the attorneys, in their anxiety and zeal, should have urged upon you some topics and considerations which have no pertinence to the case, and which should have no influ- ence upon the minds of oath-respecting jurors when they come to determine the case. The attorneys had a -^-ide range of discussion. They had the fullest freedom of argument before you upon every question of fact, and before the court upon every question of law. It was their privilege to analyze the e\adence; to arraig-n the conduct of the prisoner and 0. (the deceased), and all others concerned in the transaction which has been investigated; to characterize and impugn their motives, if the evidence justified it; to assail the credibility of the witnesses who were, either directly or indi- rectly, impeached ; and to give full play to their wit and ima-gina- tion in the illustration and adornment of their argument. But this does not mean that they had the right to make statements of facts not sustained by the evidence or to urge upon you con- siderations outside the case. Open and explicit appeals were made hy them to your sym- pathy, to your commiseration ; pathetic ;dlusions were made to tlie distressed and sorrowing families of tliose who were con- cerned in the transaction under investigation. You must exclude from your minds, promptly, manfully and absolutely, all impressions and convictions which may liavc found lodgment there, either consciously or unconsciously, that are not made by the evidence or the law. When you coiiic to the consideration of this case upon its merits, you should not permit 1100 INSTRUCTIONS TO JURY. the suggestions, allusions, statements and arguments about the distress and sorrow of the families interested, and about the con- tents of said articles to have any weight or influence upon your minds. Lay them aside as wholly irrelevant to the issue, which must be considered and determined by you strictly upon the evidence introduced and the law given to you by the court. With the consequences of your verdict you should not be con- cerned. The evidence, with such reasonable deductions as may properly be drawn therefrom, together with the law of the court's charge, should alone l)e looked to in reaching your con- clusions and in arriving at your verdict. With the dispensation of mercy you have nothing to do. You the ministers of justice and not of mercy. The administration of luercy is a function that belongs to the governor of the state, aided by the board of pardons. In a civilized state like this, it is absolutely essential to the preservation of social order that the law should be enforced, and especially in cases where acts of violence have been done. The laws must be obeyed, violator's of the law must be punished ; and .you as jurors would be faithless to your trust if you should return a verdict of acquittal in this case when the facts demand a conviction of the prisoner. It is equally important that innocence should not be punished. You were impaneled, not for vengeance, but to subserve the ends of public justice ; and you would be disloyal to your obligations if you should find the prisoner guilty when the evidence required his acquittal. This much has been said to impress you with a sense of the responsibility which you owe to your consciences and oaths, that your verdict should ])e honest, intelligent and in conformity to the evidence and the law. Sec. 1458. Appropriate remarks in the opening of a charge. ' ' The court knows of no more important public duty than you are now engaged in. You constitute an indispensable part of the court whose offices are just as important and dignified as PROVINCE OF COT'nT AND JURY. 1101 those of the judge presiding. The courts thus constituted are the supreme power that finally determines all litigated con- tentions, and to whose power all the people and every public officer of the state must yield. Hence you see that the people justly take a deep interest in the determinations of jury trials. Public confidence is strengthened or shaken as the jurors discharge intelligently or looseh' their duties. T make these suggestions because I want to impress upon your minds that the final duty whicli you are aliout to perform is one of very great importance, and one that deeply concerns the public welfare as well as the litigating parties. You have been carefully selected from the citizens of tlie count/' because of your special fitness and qualification to discharrre these important duties. It is fair to say that tlie experience of mankind goes to show lliat the candid, impartial judgment of ten or eleven men is a safer guide than that of one or two, equally candid, intelligent and impartial men ; and. while one or two men may be right in their convictions, yet it is safer for them to consider well the sources of their convictions before they finally decide against the agree- ment. Yet every juror should feel that it is his duty not to yield a well-grounded conviction because it does not accord with the con^-ictions of his fellow jurors. Both parties to this action are entitled to the independent and best judgment of each juror. A disagreement should not be had when an agreement can be rcasonabl.y secured by an impartial, candid and fair concurrence of the individual judgment of each juror. You may well remem- l)er that if this jury disagree, that this contention must be settled finally by a jury of twelve men, in no respect better qualified to tr>' the issue of fact than you are, and upon no better presen- tation of the case to them. An honest, candid and independent discussion leads to truth, heated controversy, to disagreement. Sec. 1459. Another form of opening statement. Before you enter upon Die discharge of your duty in the ])r(!mis('s, it is encumbent ufx-n the court to assist you l)y giving you certain instructions upon the law that it considers applicable 1102 INSTRUCTIONS TO JURY. to this case. There can be no doubt whatever in your minds as to whether the court is correct or not in its conclusions and instructions respecting the law. It is the duty of the court to instruct you in this respect, and it is your duty to act in ac- cordance with those instructions. If the court should err in its: statement of the law, it does not concern you, for there is a remedy provided for reviewing the action of the court by a higher tribunal, and correcting any errors that may have been made. You must, therefore, take the law as given you by the court. You are the tryers of the facts, and in that respect the court has no supervision over you. The individual judgment of the juror acting candidly is the only guide for him in determining the facts in this case from the evidence. If the court has made any statement of fact resulting, or to be drawn from the testi- mony, it is an oversight and should not be considered by you. The court has no right or business to intimate to you any con- clusion of fact drawn from the testimony that you are to con- sider, nor have you any right to form an opinion whatever as to what the court may think of the facts, or as to which had the approval in this case. Very frequently jurors will watch very closely to discover, if possible, what may seem to be the bent of the court's mind upon the facts, so as to discover what the court thinks about them. This you must steadily refrain from doing, as it mattex^ not what the court may think about the facts. The law very properly has made twelve men an essential constituent part of the court, whose duty in determining the facts is as im- portant as that of the court trying the case and determining the law applicable to it. And you are to exercise in all your deliberations, the judgment of candid, intelligent men, who are anxious only to get at the truth. You should be especially careful that you be guided, in the conclusion to which you come, by the evidence submitted to you and the instructions of the court, and nothing else. The public welfare depends more upon the intelligence and impartiality and just deliberation of the jurors in the cases submitted to them than upon the discharge PROVINCE OP COURT AND JURY. 1103 of any other public duty that falls to your lot. If you discharge your duties well, if you challenge the respect of the community by the justice, intelligence and impartiality of your decision made, you will command the respect and confidence of the people in our courts. It is of prime consequence that jurors should bo grave, that they respect, and, while respecting a sense of public justice, that they exalt the administration, so that neither party shall have any cause to feel that their case has not been impar- tially and fairly considered. CHAPTER LXY ABORTION. 14(>0. Abortion by physician — Gen- 14(32. Testimony of husband as ac- eiiil charge. complice. 1. Statement of charge. 14G3. Belief that uterus contained 2. Provision of statute — Es- dead foetus. sential elements of crime. 14G4. Presumption of innocence con- 3. Intent with which drug tinues until verdict. administered. 1465. Unwise to convict on uncor- 4 Claim that drug adminis- roborated testimony of tered to relieve of dead accomplice. foetus. 1466. Reasonable doubt as to intent 3. Good character of practi- — Reasonable probability tioner. of innocence creates rea- 1401. Flements of crime. sonable doviht. Sec. 1460. Abortion by physician — General charge. 1. Statement of charge. 2. Provision of statute— Essential elements of crime. 3. Intent with ivhich drug administered. 4. Claim that drug administered to relieve. 5. Good character of practitioner. 1. Statement of charge. The defendant here on trial is J. W. T. The crime charged in tlie first count of the indictment is that the defendant caused the death of one N. E. ])y admin- istering a certain drug called chloroform to the said N. E., with intent on the part of tlie defendant to procure a miscarriage of said N. E. 2. Provision of statute — Essential elements of crime. It is provided by the statute of this state that "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 1104 ABORTION. 1105 to presei-N'e her life, or is advised by two physicians to be neces- sary for that purpose, if the woman either miscarries or dies in consequence thereof, shall be" punished as provided by statute.^ To constitute the offense charged in the said first count of the indictment, it is essential that the proof show that on or al)()ut the time named in the indictment the defendant unlawfully, will- fully and knowingly did administer or cause to be administered, and caused to be taken by the said N. E. — the said N. E. being then and there pregnant with child — a certain quantity of a certain poisonous drug, to-wit, a drachm more or less of chlo- roform : that said chloroform was then and there administered to the said N. E. by the defendant with the intent on tlie part of the defendant then and there to procure a miscarriage of the said N. E. ; that said miscarriage was not then and there neces- sary to preserve the life of the said N. E., and tlien and there liad not been advised by two physicians to be necessary for said purpose; that in consequence of the administering of said chlo- roform to said N. E. the said N. E. then died. One of the essential elements of the offense here charged is the intent with which the defendant administered or caused to be administered and taken said chloroform to the said N. E. 3. Intent ivith tvliich drug administered. The intent -with which an act is committed being but a mental state of the accused, direct proof is not required nor can it ordinarily be so shown, but intent is generally established by all the facts and circumstances attending the doing of the act complained of as shown by the evidence. If the defendant administered or caused to ' c administered to said N. E. at said time and place such elildrofonu — if said N. E. was then and there pregnant — you will then inquire for what purpose said chloroform was administercnl to the said N. E. Tf you find from the evidence that tlie defendant, on or about tlie time and ])lace named in the indictment, either himself, t^^r if he caiLsed or directed another person so to do — that is, t(v aflminister chloroform to N. E. — if N. E. was then and there ])regnant with child — then you will find and detennine from the 1106 INSTRUCTIONS TO JURY. evidence under the instructions of the court for what purpose such chloroform was administered to the said N. E. If you find by the evidence that the purpose and intention of the defendant was then and there to procure a miscarriage of the said N. E., and if the administration of said chloroform was one of the means or agents employed by the defendant in the execution of the intention on his part to procure a miscarriage of the said N. E., and if you find that in consequence of the administering of said chloroform to said N. E. by the defendant — if such you find — with the intent aforesaid, and if the said N. E. then died, and if you further find that such miscarriage was not necessary to preserve the life of the said N. E., or had not been advised by two physicians for that purpose, then the defendant would be guilty of the offense charged. 4. Claim that drug administered to relieve of dead foetus. The defendant claims that he caused to be administered to the said N. E. said chloroform in order to relieve the said N. E. of what he believed to be a dead foetus, to remove such from the uterus, and claims that he had no purpose or intention to procure a miscarriage on the said N. E. If you find that the defendant had no intention at said time and place to procure a miscarriage on said N. E. when he administered such chloroform to her, or caused such chloroform to be at said time administered to her, then you should acquit him. If the removal of said foetus was then necessary to preser^'^e the life of the said N. E. — if such you find — the defendant would not be guilty of the crime here charged, and you should so find. 5. Good character of practitioner. Some evidence has been adduced by the defendant tending to show his previous good character as an honest practitioner in the practice of medicine, and that evidence you are to consider in the case precisely the same as the rest of the testimony. A defendant in a criminal case has the right to put in evidence concerning his former good character, that is, his previous life. It is evidence tending to raise a probability that one wlio had such a character would not commit a crime. It is not, however, conclusive. It is simply evidence to be considered with all the other testimony in the ABORTION. 1107 case for the purpose of determining whether the proof taken as a whole establishes his guilt beyond a reasonable doubt. If it does not, even tliis evidence may of itself create a reasonable doubt, and if it does, he is entitled to the benefit of that doubt, but if, when you come to take the evidence of character, together with all the other testimony submitted for your consideration, you are satisfied when you look at it and consider and weigh the effect upon'your minds and judgment, if, ultimately, your minds are convinced beyond a reasonable doubt that the defendant is guilty, then, notwithstanding his standing and position in the community — tliat is, his previous good character, he is guilty of the crime, it is your duty to so pronounce by your verdict'.- 1 Code, sec. 12412. 2 State V. Tippie, Franklin County Com. PL, Evans J. Affirmed, 88 0. S. — . Sec. 1461. Elements of the crime. The jury is instructed that if you find from the evidence in this case beyond a reasonable doubt that the deceased, N. E., at the time stated in the indictment was a woman pregnant with child; and that the defendant administered to the deceased, or ordered it to be administered to the deceased, with the intent to procure a miscarriage, that is, with the intent that either the chloroform itself should produce a miscarriage, or that by its influence as an anaesthetic and with the use of any other instru- ment or means he might procure a miscarriage, and such mis- carriage was not necessary to save the life of the deceased, and was not advised by two physicians to be necessary for that pur- pose, and that the deceased died in consequence of the chloroform administered or ordered to be administered by the defendant with the intent to procure such miscarriage, then the defendant would be guilty under the first count in the indictment, and you ought by your verdict to say so.^ 1 Request by State given in State r. Tippio. Franklin Co. Com. PI., Evana J. AfTirmed, 88 0. S. — . If deatli results wlien dru\ defendant jrivcn in State t\ Tippie, supra. CHAPTER LXVI. AGENCY. SEC. SEC. 1467. What constitutes agent. 1470. No ratification without knowl- 1468. Special or general agent. edge of facts. 1469. Principal estopped to deny 1471. Ratification with knowledge — agency, when person Cannot disavow part, placed in position from 1472. Right to recover where double which another is justi- agency known to prin- fied from usage and na- cipal. ture of business in be- lieving agent authorized. Sec. 1467. What constitutes an agent. You are instructed that an agent is one who acts for another by the authority of the principal, one who is entrusted with the concerns of another, and whatever he does as such agent, within the scope of the authority conferred on him by the principal, is as much the act of the principal as if done by the principal himself. In such case his acts are the acts of the principal. Sec. 1468. Special or general agent. A person may act for himself, or he may act through another. If he acts through another, that other is called the agent, and he is called the principal. The power of the agent may be general or it may be special. It is general when the agent is empowered to do a particular thing or many things in any way necessary or proper to accomplish the end. It is special when the agent is empowered to do a particular thing or many things in a limited way. The jury must determine the character of the agency from the testimony. In general, the principal is bound if the agent exceed his authority, and the other party did not know it. If special, the agent must follow his instruc- tions, else the principal will not be bound.^ lA correct charge given in a proper case; but held no occasion for giving it, in McGee v. Wells, 57 S. C. 280; 76 Am. St. 567. 1110 AGENCY. 1111 Sec. 1469. Principal estopped to deny agency, when person placed in position from which another is jus- tified from usage and nature of business in believing agent authorized. The jury is instructed that where a principal has by his vol- untary act placed an agent in such situation that a person of ordinary prudence, conversant with biLsiness usages and the nature of the particular business, is justified in assuming that such agent is authorized to perform on behalf of his principal a particular act, such particular act having been performed, the principal is estopped as against such innocent third person from denying the agent's authority to perform it. It is an obvious limitation upon the liability of the principal that he who deals with the agent must deal in good faith, re- specting every restriction upon the agent's authority of which he may have notice.^ 1 General Cartage Co. v. Cox, 74 0. S. 284, 294. Sec. 1470. No ratification without knowledge of facts. The jury is instructed that where a person assumes without authority to act a.s the agent of another, the principal can not be bound by such act at all unless he ratifies the same. The principal is not bound by unauthorized agreements of a special agent by the acceptance of benefits derived therefrom, unless he ratifies the same with full knowledge of all the terms and con- ditions.^ Before a person can be bound by ratification of an act done in his behalf, it must appear that he was informed of all the material facts in the transaction.^ 1 Roberts v. Rumley, .58 Towa, 301. See Am. Ann. Cases 1913, E. Note, 1115. 2 Kerr v. Sharp, 83 111. 199. Sec. 1471. Ratification with knowledge— Cannot disavow part. The prior appointment of, or the subsequent ratification of 1he acts of a third person as agent, will confirm ani establisli the authority of the agent, and generally, if tlic party receives and holds the proceeds of the beneficial results of the contract, Avitli 1112 INSTRUCTIONS TO JURY. knowledge of the material facts, he will not be permitted to deny the authority of the agent, for it is in fact the ratification of the contract. The principal can not in general adopt a part and disavow a part of the contract of the person who proposes to be liis agent. This should be received, however, with the qualification that the principal must have knowledge of the material facts to bind him.^ 1 Voris, J., in Valley Railroad Company r. Tlie Thomas Lumber and Building Co., Summit Co. Com. PI. Affirmed by Circuit Court. Ratification is a question of fact for the jury. Middleton v. R. R. Co., 62 Mo. 579 ; Fisher v. Stephens, 16 111. 397. A principal can not adopt part without adopting the whole. Winpenny v. French. 18 O. S. 469; 34 O. S. 450. Full knowledge is necessary. Wilson v. Forder, 20 O. S. 89, 97. It will not be implied from acts done in ignorance. Grant v. Ludlow. 8 O. S. 1. 19; 24 O. S. 67. Sec. 1472. Right to recover where double agency known to principal. If the defendant employed the plaintiff to act as his agent in the exchange of property mentioned in the petition for a farm owned l)y another, or employed him to aid and assist in such exchange, and agreed to pay him a certain per cent as commis- sion on the property, and at tlie same time knew that the plaintiff was the agent of the owner of the farm which defendant was seeking to obtain, and that plaintiff was acting as the agent of said owner, and tlie defendant assented thereto and agreed to pay the commission, and the owner of the farm knew that plain- tiff was acting as agent of the defendant in the exchange, and assented thereto, agreeing to pay the plaintiff the commission stipulated in the written contract of agency, the plaintiff is entitled to recover.' 1 Bell V. McCoiinell, o7 O. S. 396, CHAPTER LX\T:I. AroER AND ABETTOR. SEC. SEC. 1473. ^lust be conspiracy or overt 147.3. Aidir and abettor — Charge in act. case of homicide. 1474. One present without knowl- edge of conspiracy. Sec. 1473. Must be conspiracy or overt act. In the absence of a conspiracy, one who is present when a homicide is committed by another upon a sudden quarrel, or in the heat of passion, is not guilty of aiding and abetting the homicide, although he may have become involved in an inde- pendent fight with others of the party of the deceased, unless he does some overt act with a view to produce that result, or purposely incites or encourages the principal to do the act ; and so in this case, if you find the defendant on trial, although present at the time of the shooting, knew nothing of his son H. having a revolver, or intending to shoot, and took no part in the killing, and did no overt act to produce that result, then he is in no way responsible, and must be acquitted, unless you find from the evidence, and beyond a reasonable doubt, that the shot was fired by IT. in pursuance of a conspiracy previously formed by them.^ 1 Wool weaver u. State. fiO O. S. 277. 287. Sec. 1474. One present vrithout knowledge of conspiracy. ''It is not sufficient to establisli the guilt of a defendant in aiding and abetting the principal in the commission of the homi- cide charged in the indictment, that he was present with othei-s wlx're the alleged killing was done, for he may have been pre- sent not knowing that any crime was about to be committed; 1113 1114 mSTBUCTIONS TO JURY. and if he was not there in furtherance of an understanding or common purpose to commit some unlawful act, and was in company with the principal without knowledge that the com- mission of an offense was contemplated by the principal or any of his co-defendants, he is not responsible for the acts of the principal or his other co-defendants if he, the defendant, did not participate in the commission of the crime charged. "^ 1 Goins V. State, 46 0. S. 457. Sec. 1475. Aider and Abettor — Charge in case of homicide. It is one of the fundamental, as it is one of the most familiar, principles of criminal law, that when a criminal act is done by one of two accused persons, as, for instance, shooting and taking the life of a third person, and the other accused per- son is present when the criminal act is done, and by words, acts or gestures, aids, assists and encourages the other to do the criminal act, then both are responsible and guilty as princip^als; and that is true, notwithstanding the fact may be that a pre- vious conspiracy had not, by them, been formed to kill the per- son who was then killed.^ And it is also true, notwithstanding the two accused persons lawfully came together at the time and place of the shooting. The fact that they lawfully came together, then and there, coidd not, in law, diminish or mitigate the criminality of the shooting, if it M^as criminal, which was afterwards done. Ac- cording to old definitions, he who actually commits or takes part in the actual commission of a crime, is a principal of the first degree, and he who aids or abets the actual commission of the crime is a principal of the second degree. Since our statute, which places both of these classes in the same category, was passed, the old definitions are of no practical use except to explain the meaning of terms used. The reason of this law mak- ing both of the persons named guilty, is that the will of the accused person, who did not do the shooting, contributed to the result produced by the shooting, the death of the person shot. His guilt, therefore, is the same as if he himself did the criminal AIDER AND ABETTOR. 1115 act. The revolver, or pistol, or gun out of which the fatal shot was fired, was tlie pistol, or revolver, or gun of both of them, although only one of them owTied, held and directed it when it was fired. To render the accused person liable who simply gives aid and encouragement, but did not do the criminal act, responsible and guilty, it is not necessary that he should have been strictly, actually, and immediately present when and where the shoot- ing was done, in the sense that he was an eye or ear witness to what passed. - If he was sufficiently near to give the aid and encouragement and help to the other, that was enough. His mere presence, however, was not sufficient to make him an accomplice. He must have done something more. He must have incited, or assisted, or encouraged the other person to do the criminal act in one. of the ways mentioned. In this instruction the court has only elaborated and expounded to you a statute of the State of OMo, which declared: "Wlioever aids, or abets, or procures another to commit any offense, may be prosecuted and punished as if he were a principal offender." ^ 1 To constitute one who is present, and who becomes involved in a fight, which results in death of the antagonist, an aider and abettor, it should appear either that there was a prior conspiracy, or that he purposely incited or encouraged the slayer, or did some overt act himself, icith intent to cause the death of his antagonist. Wool- weaver V. State, 50 O. S. 277. The charge as we have given, might be modified to comply with the decision just quoted; although the remainder is a compliance with the rule. 2 Warden t\ State, 24 0. S. 143. s State V. Elliot, Franklin County, Pugh, J. CHAPTER LXYIII. ALIBI. SEC. SEC. 1476. Alibi defined — Proof thereof. 1477. Character of proof. Sec. 1476. Alibi defimed— Proof thereof. The defendant, under the plea of not guilty, and as an in- dependent defense, says that he was at another place, and there- fore could not have taken the property named in the indictment. This is what is termed in law an alibi. Alibi is a Latin word signifying elsewhere, and in law means a defense interposed by the defendant by which he attempts to prove that at the time of the commission of the offense he was at some other place than that where it was committed. An alibi is a legiti- mate and proper defense to make, and if satisfactorily made is conclusive. It is obviously essential to the satisfactory proof of an alibi, that it should cover the whole of the time of the transaction in question, or so much of it as to render it im- possible that the prisoner could have committed the act. If the defendant w^as not at the place of the commission of the alleged crime, as a matter of course he could not have com- mitted the crime himself by his own hands. Wliether or not the defendant has proved an alibi is a question of fact for the jury to determine ; and in doing so you should look to and consider all the testimony upon that subject and wh.ich in any way tends to prove or disprove it. Sec. 1477. Character of proof. It is not required that the defendant prove this defense be- yond a reasonable doubt, nor by a preponderance of evidence, to entitle him to an acquittal; it is sufficient if all the evidence raises a reasonable doubt of his presence at the time and place 1116 AUBI. 1117 of the commission of the crime charged; or in other words, you must determine from the whole evidence whether it was shown beyond a rea.sonable doubt that the defendant com- mitted the crime with which he is charged.^ "But the evidence must cover all the time during which the crime was committed. You should be fully satisfied by a preponderance of the evidence that these defendants were at H.'s, the place where they claim to have been at the time the crime was committed, all the time while the crime was being committed, or at such time that they could not, with any ordinary exertion, have reached the place where the crime was committed. "- 1 Walters v. State, 39 0. S. 21.5; State r. Harden, 46 la. 023: State v. Jaynes, 78 N. C. 504. Failure to prove an alibi aflfords no pre- sumption of defendant's presence. Toler v. State, 10 O. S. 583. -State V. Hardin, 46 la. 628. See instn-.ctions in State v. Waterman. 1 Nev. .343. CHAPTER LXIX. ALIENATION OF AFFECTIONS. SEC. 1478. Consortium, right of. 1479. Malice as an ingredient of the wrong. 1480. Marital right gives exclusive right of intercourse. 1481. Acts of defendant must be malicious. 1482. Conduct of husband. 1483. Acts of parents — Rights and liabilities. 1484. Alienation by adulterous re- lations with wife. 1. Marriage — Rights result- ing therefrom. 2. Adultery with wife — Es- sentials to recovery, and proof. 3. Damages. 1485. Alienation of aflTections. 1. Limitation of action for — Admission of acts prior to. SEC. 2. Husband voluntarily be- stowing affections on an- other — Must be wrong- ful act of defendant. 3. Relationship of husband and wife prior to act. 4. Malice. 5. Abandonment of husband not prerequisite of suit by wife. 6. Measure of damages. 1486. Claim of mistreatment of wife by husband. 1487. Connivance of, or encourage- ment by, plaintiff of alienation — Or his own misconduct bars recovery. 1488. Preponderance of evidence only, essential. 1489. Burden and character of proof of adultery. 1490. Measure of damages. Sec. 1478. Consortium — Right of. The action for alienation of aifeetions is not in any sense for loss of support, or loss of earning capacity, but is wholly an action for damages for loss of con.sortium. Consortium is defined to be, the conjugal fellowship of hus- band and wife, and the right of each to the company, co-opera- tion and aid of the other in every conjugal relation. This right is invaded whenever a third person through machination, enticement, seduction, or thi^ough other wrong- ful, intentional and malicious interference with the marriage 1118 AUENATION OF ATFECTIONS. 1119 rc4ation deprives the husband or wife of the consortium of the t.tlier.^ Whatever invades the hallowed precincts of a home, and, \\ ithout justifiable cause, by any means whatsoever severs the sacred tie that binds husband and ^\•ife, alienating the affec- tions of either, and depriving either of the aid, comfort and happiness of a loyal union between them is liable in civil dam- ages.- 1 Flandermeyer v. Cooper, 85 0. S. 327. zBoland v. Stanley, 88 Ark. 562, 115 S. W. 16.3, 12fl Am. St. 114. Sec. 1479. Malice as an ingredient of the wrong. Though it is essential that the act of the defendant shall have been malicious in order to give rise to a cause of action, still this does not require that he shall have been actuated by ill will or actual malice towards the injured party; nor is it necessary that the act of defendant shall have been prompted by a spiteful, malignant or revengeful disposition. It is suffi- cient if the acts be wrongful, unlawful and intentional and the natural and probable result of the act to accomplish the injury of the loss of consortium, or alienation of affections.^ 1 Flandermeyer v. Cooper, 85 0. S. 327; Boland v. Stanley, 88 Ark. 562; 115 8. W. 163; 129 Am. St. 114. Sec. 1480. Marital right gives exclusive right of intercourse. The right which is involved in this case is the marital right. When a man marries a woman he has certain rights to her comfort and to her society, and to the exclusive right of hav- ing sexual intercourse with her. And anyone who interferes with that right by committing any act knowingly and inten- tionally, commits an act which the law condemns.^ ' Dent V. Zang, Franklin Co. Com. PI., Kinkead, J. Sec. 1481. Act or acts of defendant must be malicious. It has been held in this state that in order to warrant a recovery in this kind of a case that the act or acts on the part 1120 INSTRUCTIONS TO JURY. of one charged with alienating the wife's affections, must be maliciously done. If a man intentionally has sexual intercourse with another man's wife, without the consent of the husband, he commits a wrongful act and he knows it. And the law then presumes from that wrongful act that he did it with malice. That is, the state of his mind is such that he acts without any regard whatever for the rights of others, and that is what we mean by malice in this kind of a case. So if the jury should find from the evidence, and by a pre- ponderance thereof, that the defendant in this case did com- mit the sexual act, and if you further find that by reason of the commission of that act and for no other reason at all, the plaintiff was deprived of the comfort and society, and of the rights that follow and attach to the marital relation, then, of course, you should find for the plaintiff' and against the de- fendant.^ 1 Dent r>. Zang. ante, soc. 1480. The alionation must be the result of wrongful influences knowingly exerted by defendant with tliat end in view. Smith v. Lammick, 0. L. R. 87: 56 Bull. 220; Flan- dermeyer i'. Cooper, 8.5 0. S. 327. Sec. 1482. Conduct of husband. Some evidence has been offered here which tends to bear upon the conduct of the plaintiff as a husband. I will say to you, gentlemen, that the conduct of the plaintiff in a case like this is a pertinent issue, and one which you may consider when there is any evidence which is offered that warrants your consideration thereof. To hold a defendant in a case like this, tlie jury must arrive at the conclusion that it was the wrongful conduct of the de- fendant w^hich resulted in the loss of consortium, or the loss of the society of his wife, and if it should appear that the con- duct of a husband was of such a character and nature that it was the cause of the loss of his wife's society and that the other acts complained of by him as against a defendant charged Avith criminal conversation were not the cause, then, of course, there could not be any recovery. ALIENATION OF APFECTIONS. 1121 But even under such circumstances where there may be some question raised as to whether or not both of these causes oper- ated in the loss to the plaintiff of his wife's society, and if the jury should believe that the conduct of one charged with criminal convei-sation with his wife did operate, whether to any degree, or entirely so, or was the sole reason, the plaintiff would be entitled to recover under such circumstances even though his own conduct may have been in a measure partially the cause of the loss to him of his ^^'ife's society.^ 1 Dent V. Zang, supra. Sec, 1483. Acts of parents — Rights and liabilities. The jury is instructed that the parents have the right to advise their son (or daughter) to leave his wife (or the daughter to leave her husband) if such advice is given with the proper motives and in good faith, and the same is founded upon con- ditions and circumstances honestly believed by them to be exist- ing, and believing that the son's (or daughter's) best Avelfare v\dll be furthered by such action. There is a natural presump- tion springing from the ties of blood that the acts of parents in so advising their child are in good faith and for the pur- pose of promoting the child's welfare unless the contrary is established by the evidence. In order to recover for loss of consortium against the parents it is not only necessary to establish the fact that the parents caused the injury, but it must be made to appear also that in so doing they acted maliciously, that is, in bad faith, not with a view of promoting the son's (or daughter's) welfare. If parents, liaving knowledge of a cliild's actual condition and situation in respect to the marital relation, or if they hav(^ sucli knowledge as to cause them to be reasonably apprehensive of tlie needs and M^elfare of their child and act in the honest belief tliat a course taken or advised is for th(> best welfare of "'7eh child, their acts cannot be deemed malicious, although such conduct in fact may appear to have been detrimental to tiie child's interest. 1122 INSTRUCTIONS TO JURY. "What a father or mother may do in respect to their married child so far as giving rise or inference to bad motive or intent is to be differently regarded than when the same thing may be done by a stranger. Parents may, to some extent, watch over the welfare of a married child; they may advise him (or, her) under some circumstances, contrary to the inclination of the husband, (or, wife) and even to the extent of advising de^ sertion, and may act upon the mind of the child successfully to that end, if with proper motive and upon reasonably jus- tifiable grounds. The jury is instructed that in determining whether parents have acted improperly and in excess of their parental right, and are liable for wrongfully influencing their son (or, daughter) to leave his wife, (or, husband) the test is, whether in what they said or did, they were in fact, actuated with a reason- able parental regard for their child, and under circumstances reasonably and fairly warranting them in being reasonably apprehensive of the child's welfare; or whether they were act- uated by unreasonable ill will towards the wife (or husband).^ If the jury finds, etc. ijones V. Monson, 137 Wis. 478: 119 N. W. 179; 129 Am. St. 1082, and cases cited; Oakman v. Belden, 94 Me. 280; 80 Am. St. 396; Ger-- nard v. Gernard, 185 Pa. St. 233; 64 Am. St. 646; Brown v. Brown, 124 N. C. 19, 70 Am. St. 574. Sec. 1484. Alienation by adulterous relations with wife. 1. Marriage — Bights resulting therefrom. 2. Adultery with wife — Essentials to recovery, and proof. 3. Damages. 1. Marriage — Rights resulting therefrom. Marriage is an in- stitution of society which is founded in a civil contract between the parties. That contract and the status resulting from it imposas certain duties upon the contracting parties and confers upon them certain valuable rights. One of these rights is that of exclusive marital intercourse with each other. ALIENATION OF APPECTIONS. 1123 Each is entitled, to the society and affection of the other. The rights of both spring from the marriage contract and in the very nature of things must be mutual. [Flandermeyer v. Cooper, 85 0. S. 327, 339.] 2. Adultery ivith wife — Essentials to re cavern and proof. When, therefore, a man commits adultery with the wife, he h-An trespassed upon the rights of the husband, and for this wrong the law affords the husband a remedy by an action in damages. To entitle the plaintiff to recover, two facts must be proven by a preponderance of the evidence. First, the fact of marriage, and, second, the fact of adultery with the plaintiff's wife by the defendant. As to the fact of marriage, it may be proven by the testimony of any person who has personal knowledge of the fact of marriage. As to the proof of adultery, the proof need not be that of eye witnesses to the act of sexual inter- course, but may be established by proof of circumstances suf- ficiently strong to create a preponderance of the evidence in favor of the plaintiff's charge that the defendant committed adultery with his wife. In the proof of any fact in a ci^^l action, it is sufficient if the evidence, whether direct or circum- stantial, is sufficient to create a preponderance of the evidence in favor of the existence of the fact asserted, and when there is such a preponderance of the evidence in favor of the existence of the fact or matter asserted, that fact or matter is to be con- sidered as proven. To warrant a finding that the defendant committed adultery with the plaintiff' 's wife upon circumstantial evidence, the plain- tiff must show a disposition on the part of the defendant and the wife of the plaintiff to have illicit intercourse and an oppor- tunity to gratify that mutual inclination or disposition. It is not enougli to show such a disposition on the part of the de- fendant alone or on the part of the plaintiff's wife alone, but such a disposition on the part of both of them, and, in addition, such a state of facts as would afford an opportunity to gratify their desires. This is a question of fact and must b(» detennined by you from all the evidence before yoU; and if you find that 1124 INSTRUCTIONS TO JURY. the defendant did have sexual intercourse ^\^lth the plaintiff's wife, without the consent of the plaintiff, and without any con- nivance on plaintift"s part, then plaintiff is entitled to recover a verdict at your hands. The gist of the offense here charged is the defilement of the marriage bed by the defendant. If it is proven by a prepon- derance of the evidence that A. P. was, at the dates complained of, the wife of the plaintiff, and that the defendant, without plaintiff's consent, committed adultery with her, then the plain- tiff is entitled to recover. This is true, even though you may find that she may have separated from him because of his own misconduct and not because of adulterous intercourse with the defendant. This re- sults from the legal principle which I have already stated to you, to- wit, that such adulteroas intercourse with a man's wife without his consent is an invasion of his legal rights and entitles him to recover damages, even though no separation may result on account of such wrongful conduct. If it results in separation and the loss of the comfort and society of the wife, this is, of course, a matter of aggravation to be considered upon the ques- tion of the amount of damages to be allowed. But the right to recover does not depend upon its being proven that the sepa- ration between the husband and wife was in fact due to the adulterous intercourse. In an action of this kind, misconduct on the part of the husband will not bar his right of action, nor will the fact that the wife has obtained a divorce from her husband on account of his misconduct bar his right of action, but the conduct of the plaintiff as a husband is a material matter to be considered, and it is competent for the defendant in mitigation of damages to prove misconduct of the hiisliand in his marital relation, and breaches of his marital obligations. Neither will the fact that the husband may have lived ^dth his wife after he had knowl- edge of her misconduct with the defendant, if you find there was misconduct in the respects complained of, between the de- fendant and the plaintiff's wife, bar his right of action. While ALIENATION OF AFFECTIONS. 1125 that might show that he had forgiven her, it woukl not condone the offense of the defendant. But if you find that defendant did commit adultery with the plaintiff's wife and that plaintiff after he had knowledge of that fact continued to live with her for some time as his wife, that fact may also be considered by you in the mitigation of damages. But you are to remember that there can be no recovery in this case against the defendant in any amount unless you find that the charge made against the defendant that he committed adultery with plaintiff's wife is proven by a preponderance of the evidence. Unless that is proven the plaintiff has failed to make out his case against tlie defendant and the defendant will be entitled to a verdict at your hands. If you find that the defendant did not commit adultery with the plaintiff' 's wife, but that her separation from him was due not to that cause, but to the plaintiff's own misconduct, the plaintiff is not entitled to recover. If the husband consents to the wrongdoing of his wife, or connives at her adulterous inter- course, he can not recover. But he is not to be charged with consent or connivance at the wrongdoing merely because he may have been negligent in respect to her conduct and thus per- mitted opportunities for wrongdoing on her part where he had no suspicion of her infidelity. The mere fact that the plaintiff may have had knowledge that his mfe was at times in the company of the defendant will not defeat his right to recover if he had no suspicion of wrongdoing between the defendant and his wife. Nor will the licentious conduct of the plaintiff, if ,you find he was guilty of .such misccmduct, amount to a consent that she might conduct herself in the same way, but sucli misconduct on his part is a material matter to be considered, as 1 have already said, upon the amount of damages to be allowed, if you find the plaintiff is entitled to recover damages. The fact that another branch of this court may have decided that the charge of adultery made against the wife of the plaintiff was not sustained, does not ])ar the plaintiff's right of action, nor is it competent evidence for the defendant in this case. Vou nuist 1126 INSTRUCTIONS TO JURY. determine that question upon the evidence before you, uninflu- enced by the finding of the court in the divorce case. But it is competent for you to consider, as I have said, the evidence tending to show misconduct on the part of the plaintiff in his marital relations. 3. Damages. If you find that the plaintiff is entitled to recover damages, the amount to be allowed rests in your sound judgment and discretion. In such cases as this, there is not and can not be from the nature of the case any fixed rule by which to measure compensation to the injured party. In estimating the damages, you should take into consideration the nature of the injury which consists in the dishonor of his marriage bed. If the defendant committed adulteiy with the plaintiff's wife, the plaintiff mil be entitled to recover damages on account of the mental anguish suffered and the wound to his feelings and pride, resulting from the wrongful conduct of the defendant. And if this resulted in the loss to him of the comfort and society and aid of his wife in his domestic affairs, this should also be considered by you in estimating the damages. In such a case as this the jury have a right to give what is called punitive or exemplary damages. That is, damages by way of punishment of the defendant for his conduct and which may be an example to deter others from the commission of like oft'enses. The damages should not be, however, excessive, that is, they should not be so great as to be beyond all reasonable measure of such damages, but in no case can you allow more than the plaintiff has asked in his petition. If you find that the plaintiff has failed to prove by a prepon- derance of the evidence that the defendant committed adulteiy with his wife, then that will be an end of the case, and your verdict should be for the defendant.^ 1 Polzer V: Lang, Com. Pleas Court, Franklin Co.. 0., Bigger, J. Sec. 1485. Alienation of Affections. 1. Limitation of action for — Admission of acts prior to. 2. Husband voluntarily hestotving affections on another — Must he wrong fid act of defendant. A LIENATION OF AFFECTIONS. 1127 3. Relationship of husband and wife prior to act. 4. Malice. 5. Ahando-nment of husband not prerequisite of suit by wife. 6. Measure of damages. 1. Limitation of action, for— Admission of acts prior to. As you will observe, the defendant pleads the statute of limitations. Under the statute the right of the plaintiff to recover for the alleged wrongful actions of the defendant is limited to a period of four years prior to the commencement of this suit ; that is, it is only for those wrongful acts on the part of the defendant, if such are proven, which occurred within a period of four years prior to the c-ommencement of this action and their effects upon plaintiff's husband in alienating his love and affection from the plaintiff that can be made the basis of recovery of damages in this case. To entitle plaintiff to recover, it must appear from the evi- dence that the wrongful acts of the defendant occurring within the four years, if such are proven, did result in alienating the love and affection of the plaintiff's husband to some extent. It is not sufficient merely to prove that within that time his love and affection for the plaintiff have been alienated. But it must also be proven by a preponderance of the evidence that there was a direct malicious interference on the part of the defend- ant sufficient to cause alienation of his love and affection to some extent at least, or to restrain tliat love and affection from his wife, and the plaintiff has the burden of proving this in- terference. It is not essential to a recovery on the part of the plaintiff that you should find that she had proven all of the statements contained in her amended petition of wrongful acts, inducements and blandishments on the part of the defendant, but it must be proven that she maliciously interfered between the plaintiff and her husband, and tliat this interference resulted in the alienation of his love and affection to some extent oi- in restraining the bestowal of that love and affection upon his wife. 1128 INSTRUCTIONS TO JURY. Proof has been admitted tending to show that the defendant had begun interference between the plaintiff and her husband prior to four years before the bringing of the suit. This testi- mony M'as admitted only for the purpose of tending to show what the disposition of the defendant Mas toward the plaintiff's husband during the period of four years prior to the commence- ment of the suit. You can not make any such wrongful acts on the part of the defendant, prior to four years before the commencement of this suit, a ground of recovery here, because such acts on her part, if any such are proven, are barred by the statute of limitations which is pleaded. 2. Husband volvntaril II hestoinng affections on another — Must he wrongful act of defendant. A wife is entitled to her hus- band's conjugal affection and society, and if you find that the plaintiff in this case has been, by the wrongful acts of the de- fendant, deprived of that right, this will give rise to a cause of action on her part against the defendant and entitle her to recover damages under the rules above stated. If the husband voluntarily bestowed his affections upon the defendant, without any wrongful acts or solicitations or blan- dishments on the part of the defendant, the plaintiff will have no right to recover damages, and if you find such to be the fact, your verdict should be for the defendant. Furthermore, if you find the affections of the plaintiff's husband were entirely and absolutely alienated from the plaintiff by the defendant's wrong- ful conduct, prior to four years before the bringing of this suit, the plaintiff can not recover, by reason of the bar of the statute of limitations, unless you find that his love and affection was withheld from her during that period by reason of the blandish- ments and seductions of the defendant. The right of the plaintiff to recover damages must be con- fined to the wrongful acts of the defendant, if any such are proven, committed within the period of four years before the bringing of this action, and, of course, if you find that such acts on the part of the defendant within that period did not AUENATION OP AFFECTIONS. 1129 result in alienating the affections of plaintiff's husband, there can not be any recovery, although you might find she had been guilty of such wrongful conduct before that time which resulted in alienating the affections of plaintift"s husband. But if you should find the fact to be that the affections of plaintiff's hus- band were not entirely or absolutelj^ alienated from the plaintiff prior to four years before the bringing of tliis suit, but that by reason of the wrongful conduct of the defendant set out in the petition, which occurred within the period of four years, his affections have been alienated or kept from the plaintiff during said period of four years, then to the extent that you may find her wrongfid conduct has resulted in alienating his affections from her or in restraining them from her, she will be entitled to recover damages. 3. Relationship of husband and wife prior to act. There has been some evidence as to the relationship existing lietween the plaintiff and her husband prior to the wrongful acts complained of. It is your duty to consider the evidence upon that subject", if you find that the plaintiff' is entitled to recover, upon the question of the amount of damages to be recovered, for the reason that the greater the love and affection of the husband for his wdfe, the greater is the damage suffered by her when that love and affection is alienated. 4. Malice. HatTed, ill will or actual malice towards the injured party is not a necessary ingredient of legal malice as applied to torts, nor is it necessary that the act complained of proceed from a spiteful, malignant or revengeful disposition. If it be wrongful, unlawful and intentional and the natural and prob- able result of the act is to accomplish the injury coini)lained of, malice is implied. 5. Abandonment of husband, not prerequisite of suit by wife. It is not a prerequisite to the right of the plaintiff to maintain this suit in her own name that slie should liave been abandoned by her husband in the literal sense, nor that she should have actually separated herself from liim by or without a decree of divorce. If she has suffered the wrong complained of, her right 1130 INSTRUCTIONS TO JURY. to redress is absolute; it can not be made to depend upon any of these conditions, as long as she keeps her marriage con- tract, so long she has the right to the conjugal society and affections of her husband. Possibly she may regain these. This possibility is her valuable right. The defendant may not demand that she shall sacrifice it for the future as the price of redress for injuries in the past. 6. Measure of damages. The measure of damages in aliena- tion of the affections of a husband includes compensation for the loss of affection, society and companionship of the husband, compensation for mental suffering and distress of mind of the wife. The amount of such damages must rest in the sound judg- ment and discretion of the jury, as no exact rule can be stated by which such damages can be measured. It must be a reason- able amount in view of all the circumstances of the case.^ 1 Baird v. Willis, Common Pleas Court, Franklin Co., O., Bigger, J. Sec. 1486. Claim of mistreatment of wife by husband. It is claimed by the defendant that he has produced evidence tending to show that the plaintiff drove his wife away from him on account of his cruel treatment of her. This evidence, gentle- men, if true, is not a defense in the action, provided that you find that the defendant did alienate the affections of plain- tiff's wife; but it is evidence that you should take into consid- eration, if you come to that question, in mitigation of any dam- ages that you think the plaintiff has sustained. It was intro- duced for that purpose, and for that purpose should be considered by you, and by way of rebutting the claim of the plaintiff that his wife's affections were alienated by the defend- ant. It is the claim of the defendant that this plaintiff drove his wife away on account of his cruel acts towards her; drove her from his house and home, and that this was the reason and on that account she left, and not by reason of any acts or con- duct of his that caused her to separate from him.^ 1 Cottle V. Kellogg. Trumbull County C. P.. Gillmer. J. The bad charac- ter of the husband will not mitigate damages, unless he is guilty of unchastity or other wrong to the wife. Norton v. Warner, 9 Conn. 172. ALIENATION OF AFFECTIONS. 1131 Sec. 1487. Connivance of or encouragement by plaintiff of alienations — Or his own misconduct bars recovery. If the jury finds that plaintiff permitted or connived at or consented to or encouraged such alienations and conduct from the defendant to his wife or from his \nfe to the defendant, then your verdict must be for the defendant, notwithstanding you may believe from the CA^dence that such attentions and conduct finally resulted in alienating the affections of the plaintiff's wife from him and in her separation from him. If she had any affection for plaintiff and the same was alienated by the conduct and actions of plaintiff himself towards her, or by his neglect of her, or from any cause whatever other than the intentions, conduct or influence of defendant, with the wrongful and A\dllful purpose and intent of alienating her affections from her husband, or inducing her to separate or remain away from him, then your verdict will be for the de- fendant.^ I Fuller r. Robinson, 230 Mo. 22; 130 S. \V. 343; Am. Ann. Cas. l!)l-2 A. 938 and note. Sec. 1488. Preponderance of evidence only, essential. The jury are instructed that in cases of this kind, where an illegal act is charged or involved in the civil suit, the same rules of e^ddence generally applicable in civil suits prevail, as against those which should be followed if you were investigating the criminal charge involved in a criminal ca.se. Adulterj^ is made a crime by our laws, and if you were trying that issue under an indictment, you would be required to find tlic defendant guilty thereof beyond a reasonable doubt. Not so in a civil proceeding as here, where it is charged, as in tliis case, that the defendant has committed adultery witli the wife of the plaintiff, you are not required to be satisfied for tlie purposes of this suit beyond a reasonable doubt, that the defendant has been guilty of adul- tery with the wife of the plaintiff', that you are only to look to all the evidence, and if you find ])y a preponderance of the evi- 1132 INSTRUCTIONS TO JURY. dence that the defendant committed adultery with plaintiff's wife, then upon that point, as one of the facts in this case, you may find for the plaintiff.^ 1 There certainly can be no doubt but that the rule that the doctrine of reasonable doubt of criminal cases does not apply to civil issues. The great weight of authority and the better view is that in civil issues the result should follow the preponderance of evidence, even though the result imputes the crime. This rule has been adopted in Ohio. Lyon v. Fleahmann, 34 O. S. 151; Shaul v. Norman, 34 O. S. 157; Jones v. Greaves, 26 0. S. 2. This is at least the case in all cases aside from those enormous crimes, Id. See fully opinion in 34 0. S. 151-156, and authorities cited. It is treated very fully in Wharton's Ev. Sec. 1246; 1 Greenleaf's Ev. Sec. 13a, note. Sec. 1489. Burden and character of proof of adultery. Now, gentlemen, you have listened to the evidence in this case patiently, and the question as to whether the defendant has had sexual intercourse with the plaintiff's wife at any time is for your determination, after due consideration of all the facts and circumstances of this case, as shown by the evidence. The burden is upon the plaintiff to prove said acts by a preponder- ance of the evidence. If he has failed to establish that fact by the weight of the evidence, then your decision on that point should be against the plaintiff. It is not claimed on the part of plaintiff that he has produced any witness who has testified to seeing any act of adultery between the defendant and plaintiff's wife, but the plaintiff claims that he has shown such facts and circumstances as will warrant the conclusion that adultery was committed. The burden is upon the plaintiff to show such a state of facts as mil satisfy you of their truth by a preponder- ance of the evidence.^ 1 Nye, J., in Wagner v. Shaw, Medina Co. Com. PI. Sec. 1490, Measure of damages. If, under these instructions, however, you find the issues joined for the plaintiff, then your next inquiry will be as to the measure of damages this plaintiff has sustained on account of the wrongful acts of this defendant, alleged in his petition, by ALIENATION OF AJTECTIONS. 1133 Avhicli he lost the affection and confidence of his wife. This will include not only the loss of the wife's affections, but for the comfort of the wife's society. If you shall find that the de- fendant seduced the plaintiff's wife, then you should include also dishonor of the marriage bed; the mortification and sense of shame produced to the husband through the knowledge and results of such seduction, and also loss of the wife's services if she separated from her husband through such seduction. It is difficult to lay do\vn any precise rule for you to ascer- tain or measure the amount of compensation or damages that the plaintiff would be entitled to, provided that you find for the plaintiff. The jury should, however, exercise their oaati judgment and common sense in determining what amount of damages, if any, would be a fair compensation to the plaintiff for whatever injury they may find from the evidence he has suffered on account of the wrongful acts alleged and averred in his petition.^ iGillmer, J., in Cottle v. Kellogg; Matheis v. Mazet, 164 Pa. St. 580. CHAPTER LXX. ANIMALS. SEC. ►^EC. 1491. Owner of domestic animal not 1496. Liability of trespasser leav- liable for injury when it ing gateway so horses is rightfully where it escape into another field, may be. unless it is where injury done in vicious — Rule otherwise fight with strange horses, when animal breaks close 1. Statement of claim, of another. 2. Temporary possession suf- 1492. Liability of owner of domes- ficient to claim of tres- tle animal trespassing on pass. lands of another. 3. Disposition of animal. 1493. Ferocious dog at large — 4. Fighting, proximate cause Knowledge of its charac- of wrongful trespass and ter — What constitutes injury. keeping of. 5. Jury to consider proba- 1494. Scienter — Proof of. bilities. 1495. Defense that dog fastened on 6. Proximate cause. premises. Sec. 1491. Owner of domestic animal not liable for injury when it is rightfully where it may be, unless it is vicious — Rule otherwise when animal breaks close of another. It is a rule of law that the owner of a domestic animal is not in general liable for an injury committed by such animal while in a place where it rightfully may be, unless it is shown that the animal was vicious in the particular complained of, and that the owner had notice of such vicious propensity. And where an animal breaks into the close of another and there damages the real or personal property of one in possession, the owner of the trespassing animal is liable without reference to whether such animal was vicious, and without reference to whether such vicious propensity was known to the owner, for the law holds a man answerable not only for his own trespass, but for that of his domestic animal. The natural and well-known 1134 ANIMALS. 1135 propensity of horses is to rove, and the owner is bound to con- fine them on his own land, so that if they escape and do mis- chief of the land of another, under the circumstances where the other is not at fault the owner ought to be liable.^ 1 Morgan v. Hudnell, 52 0. S. 552; Dolpli v. Ferris, 7 Watts & Serg. 367. Sec. 1492. Liability of owner of domestic aiiimal trespassing on lands of another. If the defendant's horse was at the time trespassing in plain- tiff's field, on plaintiff's land, or on the land of a third party where plaintiff was pasturing his horse by the month, for a con- sideration paid by plaintiff to such owner, and there attacked and killed plaintiff's horee, defendant is liable for tlie injury, whether he knew or did not kno^v of the vicious propensity of his horse. If the jury find that the defendant's horse was in pasture on his wife's premises, and w'hile there broke over part of the partition fence, separating her said lands from the field in which plaintiff's horse was being rightfully pastured by him, then the defendant's horse was unlawfully in the place where the plaintiff's horse was on pasture, and in such case, if the jury find that he killed plaintiff's horse, the defendant is liable to plaintiff for the injury, whether his horse was in fact vicious or not, and whether he knew of such viciousness or not.^ 1 Morgan v. Hudnell, 52 0. S. 552. Sec. 1493. Ferocious dog at large — Knowledge of its charac- ter — What constitutes keeping of. "A ferocious dog, known to the keeper to be accustomed to bite mankind, is to be regarded as at large, within the common import of those terms, when he is so free from restraint as to be liable to do mischief to man, and this, such a dog is always liable to do when not physically restrained. You will, there- fore, determine from the evidence whether or not the defendant properly restrained the dog in question as the keeper of a vicious and ferocious dog is bound to keep it from doing injury at his peril." 1136 INSTRUCTIONS TO JURY. If you find from the evidence that the dog in question was vicious and ferocious, and known as such to the defendant, and you further find that the defendant was the head of her family, having possession and control of a house or premises, and she suffered or permitted the dog to be kept on her said premises, in the way such domestic animals are usually kept — as a member of the family, so to speak (in so far as a house dog may be termed a member of one's family) — such head of a family, the defendant herein, is to be regarded the keeper and harborer of such dog, and it makes no difference whether the defendant was the owner of the dog or not. ' ' ' 1 Request given in O'Farrell v. Alberty, Lucas County. Affirmed by Cir- cuit Court; settled and dismissed in Supreme Court. One wlio knowingly and wrongfully suffers a ferocious dog to go freely about his premises where he is also fed and housed is liable for in- juries done by such dog, regardless of the question of ownership. Frammel v. Little, 16 Ind. 251; 1 Cummings v. Riley, 52 N. H. .368; Marsh v. Jones, 21 Vt. 378; Meibus v. Dodge, 38 Wis. 300: Barrett v. Madden & M. R. R. Co., 3 Allen (Mass.) 101; 3 Loomis V. Terry, 17 Wend. 496. See Nordeck v. Loeffler, 2 W. L. B. 258. Ownership is sometimes implied by mere possession, and so, likewise, it is presumed that the owner of the dog is the person who keeps or har- bors it. And the ownership may be shown as a circumstance in- dicative of the keeping of the animal. 2 Sh. & Red. on Neg. Part 7: — Chap. XXX, § 626 — 636; Buddington v. Shearer. 20 Pick. 477; Grant r. Ricker. 74 Maine 487; Dickson i\ McCoy, 30 N. Y. 400: Sullivan v. Scripture, 3 Allen (Mass.) 564; Smith v. Jacques, 6 Conn. 580; Oakes v. Spaulding, 40 Verm. 347. Sec. 1494. Scienter— Proof of. ' ' To enable the plaintiff to recover he must prove that the dog was accustomed to bite mankind, and that it must also be proved that the defendant had knowledge that he was so accustomed to bite ; that if a single instance of biting mankind previous to the act complained of in the declaration was fully and satisfactorily proved to the jury and a knowledge of such act on the part of the defendant was proved in like manner, that had been held sufficient to warrant a jur\^ in finding a verdict for the plaintiff in cases of this kind ; but that the force of such testimony would depend much upon the circumstances' attending the transaction. ANIMALS. 1137 as, whether they indicated a disposition to bite ^\^thout provo- cation, or the contrary. " ^ 1 Arnold t\ Norton, 2.5 Conn. 92. Thompson on Trials, Sec. 1493. The Statute in Ohio which abrogated the common-law rule (13 O. S. 485) has since been repealed. Sec. 1495. Defense that dog fastened on premises. The defendant may show in her defense that this dog was properly secured there upon the premises, was secured so that he could not come at anyone to commit any damage, and in that connection you must consider the relations existing between plaintiff and defendant on tlie premises of the former of the plaintiff there to the defendant and her premises : If the plain- tiff was there at work on the premises with ]\Irs. 0. 's knowledge and consent, then he would have a right to go about the premises in a reasonable way, to carry out and dispatch the business that he was employed to do; and if, in going about in that way, he was bitten by a dog, then he would have a right to recover; though, if you find that the dog was properly secured, was kept there securely shut up by the defendant, or with her knowledge, knowing that it was so kept so that he could not come at any- body, and if A., the plaintiff, was told not to go there, and he understood that the dog was there, and knew that it was dan- gerous to go there — knew why he was forbidden to go there and understood it — then, if he went where the dog was securely shut up and kept safely — knowing that he was dangerous — if that is shown and made out by the evidence — by a preponderance of evidence — then the plaintiff can not recover.^ 1 O'Farrell t. Albertv, S. C. Xo. 3.291, Lucas County, Harmon, J. Sec. 1496. Liability of trespasser leaving gateway so horses escape into another field, where injury done in fighting with strange horses. 1. Statement of claim. 2. Temporary possession sufficient to claim of tresuass. 3. Disposition of animal. 1138 INSTRUCTIONS TO JURY. 4. Fighting, proximate cause of ivrangful trespass and in- jurij. 5. Jury to consider prohahilities. 6. Proximate cause. 1. Statement of claim. The pleadings present the question whether the plaintiff is entitled to recover from the defendant, R., the value of a horse owned by him and claimed to have been injured by the wrongful act of the defendant. That wrongful act consists of a charge of wrongful trespass upon lands in w^hich the plaintiff claims some interest by way of the right of possession as a pasture field. The plaintiff alleges that his horse was reasonably worth $ at the time of the injury by the alleged wrongful act of the defendant. The defendant denies the commission of a wrongful act by him. The evidence without dispute shows that the plaintiff had rented the S. field, so-called, from A. H. S. for pasture. The undisputed evidence also shows that the gateway in question was so constructed as that it could not he opened without tear- ing it apart or removing one of the boards ; that it was so con- structed that it could not be loosened from the west post wdthout that board being taken out ; so that stock confined in the S. field could not in any wise remove that gate. The undisputed facts are that R. drove the wagon loaded with hay through the gate- way betM-een the field in possession of the plaintiff in which his two horses were at the time, and the B. field. The plaintiff testified that he did not give permission to R. to go througli that field, and that he did not have any knowledge that he did go through the field until after the act was committed. 2. Temporary possessiwi sufficient to claim of trespass. The court states to the jury as matter of law that under the testi- mony in this case the plaintiff, P., had such a temporary right of possession to that field, and especially to the benfits to be derived from the fence and the gateway for the protection of his stock being grazed therein, as to entitle him to complain of the AATongful act of trespassing upon that property, which the ANIMALS. 1139 court states a^ matter of law constitutes a wrong and a trespass upon the rights of the plaintiff P. So that in view of tliis in- struction to the jury you will disregard all arguments and claims of counsel reflecting upon that point which are not consistent with the statement made by the court. The court states to you that as a matter of law and fact the defendant, R., was guilty of committing a wrongful act in going through this gateway, which was a trespass upon the temporary right of possession which existed in the plaintiff, P. The claim of plaintiff is that the injury to his horse was caused by the act of R. in driving through the gateway and by leaving the same open so that the horse of plaintiff passed into and upon the B. field, and that the bay horse of B. kicked the horse of plaintiff, which made it necessary to kill it. There is no evidence, gentlemen, in this case that brings it within the rule of laAv applicable to vicious animals; and any liability of the defendant, R., must rest not upon that ground, but upon other grounds. And you will, therefore, pay no atten- tion to the question of what is termed in law a vicious animal. 3. Disposition of animal. Evidence has been admitted, how- ever, for your consideration as to the disposition and character of the horses in question. That you may consider, for whatever you deem it worth in deciding the questions of fact submitted to you. But it has no relation to the liability of one who owns a vicious horse and who has knowledge thereof for any injury to another by such horse. 4. Injury to horse hy fighting proximate cause of wrongful trespass. The jury is instructed that if the injury to the horse of plaintiff was directly and proximately caused by the wrongful act of the defendant in passing through the gateway of plaintiff without right, and wrongfully, he may be held liable therefor. Even though the defendant did undertake to erect a temporary barrier in the gateway after upsetting the load of hay and breaking the gate post, if the jury find that he did erect the same; and even though he used reasonable and ordinary care in such act, and though he believed that he had made reasonable 1140 INSTRUCTIONS TO JURY. provision to keep the horses from passing from one field to the other, still if the horses were attracted to the place by the hay which was upset at such point, and the temporary barrier so erected was insufficient to keep the horses from passing through to the other field, notwithstanding such barrier, and if the horse of plaintiff did pass into the field of B. because of the wrongful act and trespass of R. and mingle with the horses of B. and was injured by reason of fighting with the horse of B., and because of sucli fighting, whether by being kicked by B.'s horse or by the other horse of the plaintiff, the defendant, R., may be held responsible for such injury if the jury find that such fighting and such injury was the direct and proximate cause of such wrongful trespass by R. upon the temporary possession of the property of the plaintiff. If the jury find that the fighting between the horses of plain- tiff would not have occurred or would not have taken place but for their entry into the field of B. and because of their mingling with or coming in contact with the horse of B. in his field, then the jury may find the defendant liable for the injury to plain- tiff's horse. Or if the jury find that defendant did not erect the temporary barrier as claimed by him, and the horses of plaintiff passed into the field of B. and became engaged in a fight with the horse of B., and plaintiff's horse was injured, which would not have happened but for the wrongful act of R., the latter will be liable if such injury resulted as the proximate cause of the M'rongful act and trespass which the court states to you was committed by the defendant, R. 5. Jnry may consider prohabiliUes. It is not required that the jury shall be absolutely convinced of the existence of the essen- tial facts to fix the responsibility of the defendant. On the con- trary, the law permits you to deal in probabilities, or to decide the facts as you may find them to have probably been. And the evidence in this case does not consist alone in the mere state- ments of witnesses. Nor do you have to believe such statements merely because they are made by a witness or any witness, if you deem it proper to disbelieve the same. But you may draw ANIMALS. 1141 such inferences from facts and conditions which you may find to be probably established by the evidence and apply the legal consequences attaching thereto according to the rule of liability contained in the instructions as to the law given you by the court. You may consider the probability of the horses passing over and through the alleged temporary barrier; whether the gate would have been probably broken by the horses passing through the same, or whether, looking to the inferences from facts and alleged claims made in evidence, or other claims made in evidence as to the location of the rake and the fence boards, the alleged temporary barrier was or was not erected. The facts are entirely for the jury to decide. 6. The proximate cause. The proximate cause of an injury is the direct or efficient cause of the wrong done, the act which if it had not been committed, the injury would not have been done. The jury will make its deductions from the evidence and find the ultimate facts or fact therefrom and apply the rule of liability contained in the charge of the court and affix the legal consequences applicable thereto by your verdict.^ 1 Pendleton v. Ross, Franklin Co. Com. PI., Kinkead, J. CHAPTER LXXI. ASSAULT AND BATTERY. 8. Direction as to verdict tor plaintiff. 9. Measure of damages. 10. ^Vllen verdict may be for defendant. When committed in self-de- fense. Force used in repelling as- sault, not nicely meas- ured. Defense of self and child — Force used. How far one may go in pro- tection of self or child. One provoking assault may recover if he afterwards withdrew. Damages recoverable in civil action. Effect of conviction in crim- inal prosecution on civil damages. Sec. 1497. Assault and battery defined. Any unlawful beating or other wrongful physical violence or constraint inflicted on a human being, without his consent, is an assault and battery. If a person only so much as lay his finger upon another, with- out his consent, in a rude, angry, insulting or indecent manner, he commits an assault and battery. But gently touching or laying the hand upon another in a friendly way, udthout any harmful or e^dl intent, is not an assault and battery. 1142 1497. Assault and battery defined. 1498. Assault by teacher on pupil. 1499. Assault and battery by rail- road employee — Flag- man. 1. Statement of claims. 1500. 2. Burden of proof and cred- ibility of witnesses 1501. (omitted) . 3. Assault and battery de- fined. 1502. 4. Relative rights and duties of pedestrians and rail- 1503. way company at rail- road crossings. 1504. 5. Same — Right and duty of flagman and responsibil- ity of railway for his 1505. acts. 6. Assault and battery may be negligently committed. 1506. 7. Proximate cause. ASSAULT AND BATTEia. 1143 If two neighbors meet and shake hands, no assault and battery is committed. If one friend steps up and lays his hand gently on the shoulder of another, with the intention of speaking with him or for some other proper purpose, no offense would be committed, but such an act as this might be an offense, even though done without any feeling of anger. If instead of laying the hand gently on the shoulder, a great degree of violence were used, so as to cause physical pain, the rudeness of the act might render the party doing it liable either civilly or criminally for assault and battery.^ 1 Hawos, J., in Harper r. Hart, S. C. 1500. Assault defined in Fox v. State, 34 0. S. 377. Sec. 1498. Assault by teacher on pupil. 1. Right to correct pupil, extent thereof. The defendant claims that in correcting C, a pupil, he took hold of him, and administered such corporal punishment as was necessary for the proper government of the school, and that he had a right to administer said punishment, and in doing what he did he com- mitted no assault and battery and no offense whatever. You are instructed that a school teacher has a right to give moderate corporal correction to his pupils for disobedience to his lawful commands, negligence, or for insolent conduct.^ It is not an assault and battery for a teacher to correct and punish a pupil in a reasonable way. But if the punishment be extreme, unreasonable or cruel, or such as would naturally occa- sion permanent injury to the pupil, or if inflicted merely to gratify an evil passion, the teacher would not be justified, and would be guilty of assault and battery.- The right of a school teacher to correct his scholars has been practically and judiciously sanctioned, but the punishment must not exceed the limits of moderate correction. A teacher, in the exercise of the power of corporal punishment, may not make such power a pretext of cruelty or oppression, but the cause must be sufficient, the instrument suitable, and the manner and 1144 INSTRUCTIONS TO JURY. extent of correction, the part of the person to which it is ap- plied, and the temper in which it is inflicted should be distin- guished with the kindness, prudence and propriety which become the station of the teacher. The jury will consider and determine whether the defendant was justified in administering or inflict- ing any punishment upon C. ; whether what was inflicted was reasonable and proportionate to the offense of the pupil, or appropriate in its kind and character, such as a teacher had a right to inflict. If you find that the conduct of the pupil was such as to deserve and merit punishment, then as a matter of law the defendant was justified in inflicting such punishment as the particular circumstances of that case reasonably required and deserved. If you find that the conduct of the pupil was such as not to merit or deserve punislunent, then as a matter of law the de- fendant was not justified in inflicting any punishment whatever upon him. The defendant would not be justified in inflicting corporal punislunent upon the person of C. without any just cause, nor unless it was done for the purpose of correcting or disciplining for a violation of the defendant's lawful and rea- sonable commands as such teacher. The defendant Avould not be justified in inflicting corporal punishment upon the pupil for the purpose of gratifying the defendant's passion or malice; if it was done for the mere purpose of gratifying the passion or malice of the defendant and without just cause, then any punishment inflicted for that pur- pose would be unlawful and constitute an assault and battery. If the conduct of the pupil was such as to deserve and merit punishment, it was the duty of defendant to do it in a reason- able and moderate manner, and to use only such means as were reasonable and proportionate to the offense committed by the pupil. But if you find from the evidence that there was a just cause for the punishment, and that the defendant used extreme, un- reasonable and cruel punishment, he would be guilty for the ASSAULT AND BATTERY. 1145 excessive punishment so used. And if the excessive punishment was unreasonable and grossly disproportionate, such excess would constitute an assault and battery. If you find from the evidence that the conduct of the pupil was such as to justify the defendant in ])unishiDjr him, it was the duty of the defendant to use a suitable and proper instrument, and administer punishment in a reasonable and proper manner, and if the defendant punished the pupil in an unreasonable and improper manner, by reason of a sudden and violent passion through malice, such punishment would not only be unjusti- fiable, but unlawful. If you find that he was not justified in administering any punishment, and you further find that the defendant unlawfully struck, beat, wounded, or ill treated the pupil, then you should so determine by your verdict. But if you find from the evidence that the conduct of the pupil was such as to merit and deserve some punishment, it will be necessary for you to go further and determine from the evidence whether the punishment administered was reasonable and commensurate with the offense committed. If you find it was, then the defendant would not be guilty.'' 1 Reeves Dora. Rel. 534; 1 Bishop's Cr. Law, sec. 880. 2 Field's L. B., Sec. 267: Boyd v. State, 16 Am. St. .'il; 1 Bishop's Cr. Law sec. 886. 3 Nye, J., in State v. Joseph Seaton, Medina Co. Com. Pleas; 1 Bisliop's Cr. Law, sec. 886. Sec. 1499. Assault and battery by railroad employee or flag- man. 1. Statement of claim. 2. Burden of proof and credibility of iriinesscs (omitted). 3. Assault and battery defined. 4. Relative rights and duties of pedestrians and railway company at railroad crossing. 5. Same — Right and duty of flagman and responsihilify of railway for his acts. 6. Assault and battery may be negligently committed. 1146 INSTRUCTIONS TO JURY. 7. Proximate cause. 8. Direction as to verdict for plaintiff. 9. Measure of damages. 10. When verdict may he for defendant. 1. Statement of claims. The plaintiff brings this action against the railway company for an alleged assault and battery claimed to have been committed by the servant of the defendant who was at the time in question acting as flagman. It is charged that the flagman, while engaged in his duties and in the line of his employment, with force and violence maliciously, recklessly and without cause or provocation, assaulted plaintiff, etc. The defendant enters a general denial. 3. Assault and battery defined and explained. The charge contained in the petition is assault and battery. An assault and battery is either an unlawful, intentional and willful injury to the person of another, or it is a willful, wanton, careless or negligent commission of an act of violence to the person of another, which is the proximate cause of the injury.^ 4. Relative rights and duties of ppdestrians and railway com- pany at railroad crossing. Plaintiff had the right to cross over the railway tracks of the defendant at the crossing in question ; but it was his duty to refrain from passing over the tracks when trains or engines of the railway company were approaching such crossing ; and it was also his duty to give heed to any signal or warning which may have been given him by the flagman of the defendant, if any the jury find were given. At the time when a railway train and a foot passenger or pedestrian are about to cross a railroad crossing, the railw^ay company has the superior right of way. The railway company had the right, and it was its duty to give signals or warnings to pedestrians and to this plaintiff, who were about to cross over its tracks, and it was the duty at this time when the plaintiff was about to cross over the track of the railway company to give signals and warnings of the danger from approaching trains or engines, Avhieh, as already stated, should be observed by the plaintiff. ASSAULT AND BATTERY. 1147 5. Same — Right ami duty of flagma)i and responsibility of rail- way for his acts. It is the law also, gentlemen, that the fiagiuan or servant may use such reasonable means and force as may be reasonably necessary under the circumstances to warn and pre- vent persons — and such was the right and duty of the flagman as to the plaintiff — from crossing over the tracks of the defend- ant company at the time of approaching engines and trains at such crossings, to prevent injurj^ to them, or to this plaintiff, therefrom; and there can be no liability for injury on the part of the railway company unless more force than was reasonably necessar.Y was used in giving the warning or in preventing persons from crossing the track at the time of the approaching train. The railway company is responsible for any injury caused to any person by such flagman, and would be in this case respon- sible to the plaintiff, if the servant uses more force than was reasonably necessary, considering all the circumstances at the time, to warn and keep persons from approaching such crossing. 6. Assault and battery may be negligently committed. An assault and battery, as before stated, may be intentional, that is, it may be intentionally o"" willfully committed, or it may be the result of negligence.- That is, if the flagman of the defendant failed to observe ordinary care in the performance of his duties in warning and keeping persons from the tracks, such care as persons engaged in that kind of work ordinarily exercise under similar circumstances. If he was guilty of culpable negligence in handling the flag staff, which was the proximate cause of the injury, the defendant would be liable in such case; that is the question for the jury to determine.^ 7. Proximate cause. Proximate cause is the immediate, effi- cient cause, the act which caused the injury to the plaintiff, the act which without the intervention of any other unforeseen cause produces the injury. This doctrine, gentlemen, is to be considered by you only in the event that you conclude that the act of the flagman was not intentional and willful. The jury in such case will determines whether it was the conduct of plain- tiff or of the flagman which caused the injury. 1148 INSTRUCTIONS TO JURY. 8. Direction as to verdict for plaintiff. If the jury find that A., defendant's servant, while in the line of duty, intentionally and willfully struck the plaintiff, or that he used more force than was reasonably necessary under the circumstances to pro- tect plaintiff from death or great bodily injury from approach- ing trains, and injured him, your verdict in such case should be for the plaintiff. 9. Measure of damages. If you should find in favor of the plaintiff, you should award him such compensation by way of damages as you in your judgment deem proper, considering the nature of the injury, his pain and suffering, if any. If the jury should find that the flagman was actuated by malice, then it may go beyond the rule of mere compensation and award exemplar^'- or punitive damages ; and in such case you may in your estimate of punitive damages take into consideration and include reason- able fees of counsel employed to prosecute the action. Exem- plary or punitive damages are assessed in cases only where the act is maliciously done ; not to punish, but merely as an example. Malice is not necessarily ill will toward a person, but is indica- tive of an intentional or willful disregard of the rights of another. 10. When verdict may he for defendant. If, however, the juiy should find that the injury was not intentionally and willfully committed by defendant's servant, but on the other hand, that he used only such force or adopted only such means in the per- formance of his duties as was reasonably calculated and neces- sary under all the circumstances appearing in the evidence to protect plaintiff from injury, and that the injury was not the result of carelessness or negligence on the part of the flagman, and you find that it was proximately caused by the conduct of plaintiff himself in disregarding warnings and other reasonable means adopted by the flagman to protect plaintiff from injury in crossing the tracks from approaching trains, then your ver- dict should be for the defendant and against the plaintiff.* iFishwick V. state, 10 X. P. (N.S.) 110; 21 L. D. 127. 2 State V. Mueller, 6 O. L. R. 542, 545; 54 Bull. 94. ASSAULT AND BATTERY. 1149 3 Mercer v. Corbin, 117 Iiul. 450; Com. r. Adams, 114 Mass. 323; Fisli- wick V. State, 10 X. P. (N.S.) 110. * V. C, C. C. & St. L. Ry., Franklin Co. Com. PI., Kinkead, J. Sec. 1500. When committed in self-defense. If you find from the evidence that the defendant committed an assault and battery upon the plaintiff, without any just cause or provocation, the defendant would be liable in this action. The act of assault and battery may be justified by evidence that it was done in self-defense. One man may protect his person from assault and injury by opposing force to force. Nor is he obliged to wait until he is struck; for, if the weapon be lifted in order to strike, or the danger of any other personal violence be imminent, the party in such imminent danger may protect himself by striking the first blow and disarming his assailant. But the opposing force or measure of defense must not be unreasonably disproportionate to the exigency of the case, for it is not every assault that will justify every battery. If the violence used was greater than was necessary to repel the as- sault, the party is himself guilty. If you find from the evidence that the plaintiff made the first assault upon the defendant with his cane, the defendant would have a legal right to resist such assault with such force as was necessary to protect himself from the assault of the plaintiff. If you find from the evidence that the plaintiff, without any just cause or provocation, ran towards the defendant and struck him with his cane, and afterwards raised his cane to strike him again, and that the defendant believed and had reasonable grounds to believe that he w^as in imminent danger of great bodily hann, the defendant would be justified in using such force as he had reasonable ground to think was necessary to protect him from said danger, and if he only used such force, he M'ould not be liable in this action. But if you find from the evidence that the i)laintiff did make the first assault upon the defendant, the defendant would not be justified in using any more force to resist said assault than he believed, and had reasonable grounds to believe, was necessary to protect him from the assault of the plaintiff. And if you find that the defendant did use more 1150 INSTRUCTIONS TO JURY. force than he believed, and had reasonable grounds to believe, was necessary to protect himself from the assault of the plaintiff, the plaintiff would be liable for said excessive force and no more. Now, gentlemen, if you find for the plaintiff under the evi- dence and instructions given you by the court, it will be your duty to assess such damages to ,/hich you find the plaintiff is entitled.^ iVoris, J., in Pford v. Pixley, Summit County Common Pleas. See Stew- are r. State, 1 O. S. 66; 1 Bishop's Cr. Law, sec. 865; State v. Burke, .30 la. 331. Right to repel attack. State v. Hilbrant, 7 O. L. R. 440. It is erroneous to state that the burden is on defendant to show he was in actual danger, that the exigency demanded self- defense, and that he used no more than was actually necessary, because it ignores the question of reasonable belief of danger. Aurand v. State, 12 C. C. (N.S.) 311. Sec. 1501. Force used in repelling assault, not nicely meas- ured. The law does not measure nicely the degree of force which may be employed by a person attacked, and if he uses more force than is necessary, he is not responsible for it unless it is so disproportionate to his apparent danger as to show wanton- ness, revenge or a malicious purpose to injure the assailant.^ 1 Voris, J., in Pford v. Pixley, Summit County Com. Picas, 1 0. S. 66. Sec. 1502. Defense of self and child — Force used. A man may protect his person and that of his child by oppos- ing force to force, nor is he obliged to wait until he is struck, or if the weapon be lifted in order to strike, or if the danger of any other personal \dolence be imminent, the party in such imminent danger may protect himself by striking the first blow and disarming his assailant. But here also the opposing force or means of defense must not be unreasonable or disproportionate to the exigency of the case. No more force is to be used than necessary to prevent the violence impending. Where one is assailed he may use such means as are necessary to repel the assailant, or to prevent his own material injury.^ 1 Nye, J., in State v. Kimball. "It is conceded that parent and child, hus- band and wife, master and servant would be excused should they ASSAULT AND BATTERY. 1151 even kill an assailant in the necessari/ defense of each other," etc. Sharp t\ State, 19 Ohio, 379, 387. Brothers may protect each other if not at fault. Smurr v. State, lO.") Ind. 125; Waybright v. State, 56 Ind. 122; 1 Bishop's Cr. Law, sec. 877. Sec. 1503. How far one may go in protection of self or child. If you find from the evidence that the defendant made the first assault upon the prosecuting witness without just cause or excuse, and shot him or shot at him, such fact may be consid- ered by you in determining whether the defendant is guilty or not guilty, as charged in the indictment. If you find from the evidence that the prosecuting witness made the first a.ssault upon the defendant, or attempted to make an assault upon the defendant, and you further find that the defendant went no further than was necessarv to protect himself and child from the assault or attempted assault, then the acts of the defendant would be justifiable, and he would not be guilty of the crime charged. If you find from the evidence that the prosecuting -witness made the first assault on the defendant, or attempted to make an assault upon the defendant, and you further find that the defendant went farther than was necessary, and from all the facts and circumstances of the case tlie defendant had a right to believe was necessary to protect himself and child, the de- fendant would be liable for such excessive force used. It is left for you to say whether or not the prosecuting witness did make the first assault upon the defendant, and if he did, if the defendant went beyond what was necessary, and from all the circumstances of the case he had a right to believe Avas necessary to protect himself and child from such assault.^ 1 Nye, J., in State v. Kimball ; 1 Bishop's Cr. Law, sec. 877. Sec. 1504. One provoking assault may recover if he after- wards withdrew. One voluntarily provoking an assault may recover when his adversary voluntarily renews the conflict. If the plaintiff vol- untarily brought upon himself the injuries complained of, it 1152 INSTRUCTIONS TO JURY. would seem absurd to say that he should be awarded exemplary damages resulting therefrom. But, though he may have pro- voked the battery, if he afterward withdrew from the conflict, the defendant could not make tlie provocation an excuse for following him up and beating him after he had so withdrawn. In that case, if the defendant did voluntarily renew the con- flict, the plaintiff in good faith endeavoring to avoid it, and thereupon wrongfully beat and wounded the plaintiff, and he was thereby injured so that you can see that he sustained sub- stantial damages therefrom, then the plaintiff would be entitled to recover compensatory damages, at least, for the injury so done, and if the renewal of the assault was of a character to bring the act within the provision of exemplary damages, it would not defeat the recovery of exemplary damages. It is the law of Ohio that one who provokes a fight may recover from his antagonist for injuries inflicted by the latter when he oversteps what is reasonable under the circumstances and un- necessarily injures such person, but he can not recover for any injuries that resulted from any reasonable resistance to the attack made by the plaintiff.^ 1 Voris, J., in Otto v. Mills, Summit Co. Com. PI. It is said by Minsliall, J., in Barholt v. Wright, 45 0. S. 177, 181: "It is upon the mere principle of public policy that one who is the first assailant in an assault may recover of his antagonist for injuries inflicted by the latter, where he oversteps what is reasonably neces- sary to his defense, and unnecessarily injures the plaintiff, or that, with true want of consistency, permits each to bring an action in the case, the assaulted party for the assault first committed upon him, and the assailant for the excess of force used beyond what was necessary for self-defense." Dole v. Erskine, 35 N. H. 503; Cooley on Torts, 165; Darling v. Williams, 35 0. S. 63; Gizler v. Witzel, 82 111. 322. It would seem that under the code the right of each combatant to damages might have determined in a measure in the same action. Id. Swan's P. and P. 259, n. a. Sec. 1505. Damages recoverable in civil action. If you find from the evidence that the defendant is liable in this case, the plaintdff is entitled to recover such damages as compensation as you shall find that he has sustained. And in ASSAULT AND BATTERY. 1153 determining said compensation you may consider the plaintiff's injuries which he has showTi were inflicted l)y the defendant, if any. You may consider the mental and physical pain and suffering which the plaintiff has endured, if any, as a result of injuries unlawfully inflicted by the defendant, as I have in- structed you. The plaintiff in this case claims that he has been to expense in curing himself, and he asks special damages on account of said expenses and care and nursing. Now I say to you, if you find from the evidence in this case that the defendant is liable, the plaintiff would be entitled to recover such sum (not ex- ceeding dollars) that he has shown you by the evidence that he has expended in that behalf, if any. He would not be entitled to recover any more for any special damages than he has sho-\%Ti you by the evidence to have incurred. In assessing damages, if you find that the plaintiff is entitled to recover in this action, and you further find that the defend- ant acted maliciously, then you have the right, if you think proper, to go beyond the mere compensation and award exem- plarj' or punitive damages, as a punishment to the defendant..^ The plaintiff is not entitled to this last item of damages as a matter of right. It is entirely in your discretion to allow it or not for the purpose of a punishment. If you find that the plain- tiff acted maliciously, you may in your estimate of compensatory damages, take into consideration and include reasonable fees for counsel employed by the plaintiff to prosecute this action. In no event would the plaintiff be entitled to recover more than ( dollars) the amount asked for in his petition. - 1 Stevenson v. ^Morris, 37 0. S. 10, 10-20. Tn a tort which involves the ingredient of fraud, malice, or insult, exemplary damages may be awarded and counsel fees may be allowed. Roberts v. Mason, 10 O. S. 277; Finney v. Smith, 31 0. S. .529. 2 Voris, J., in Pford r. Pixley, Summit County Common Pleas. Sec. 1506. Effect of conviction in criminal prosecution on civil damages. The fact that the defendant has been convicted and fined for the assault and battery is not a bar to the right of the plaintiff 1154 INSTRUCTIONS TO JURY. to recover compensatory damages for any injuries you may find he sustained. Before adding any sum to your verdict by way of punishment and example, if you find the same to be evident under our instructions to you, it will be well for you to consider the punishment, fine and cost adjudged against the defendant in the criminal prosecution, but this evidence can be considered under no circumstances for the purpose of lessening the com- pensation of the plaintiff for the injuries actually sustained, but may be only for the purpose of aiding you in determining whether any other sum, and if any, how much, should be added by way of punishment and example in addition to that awarded in the criminal prosecution.^ 1 Voris, J., in Otto v. Mills, Summit Co. Com. Pleas. A civil remedy for damages for injury is not merged in an indictment for the same act. 4 0. 376; 19 0. S. 462; 5 W. L. J. 356. CHAPTER LXXIL ASSAULT WITH INTENT TO KILL. SEC. SEC. 1507, Assault with intent to kill — 1508. Assault with intent to kill — Complete charge. Includes les.ser grades. 1509. Assault— Battery— Intert. Sec. 1507. Assault with intent to kill — Complete charge, em- bracing : a. Statement of case. b. Plea of not guilt y — Burden of proof. c. Concise definition of reasonable doubt. d. Credibility of witnesses. e. Reputation of prosecuting ivitness. f. Statute as to crime. g. Jury not concerned ivith penalty. h. Who started the affray. i. Law as to assault. j. Plea of self-defense — Burden of proof and degree of evi- dence. k. Malice. 1. Intent to kill. m. Proof of intent to kill. n. Direction to jury as to finding and verdict. o. May find defendant guilty of assault. a. Statement of case. Gentlemen of the jury, the charge made against the defendant is an assault with intent to kill. In the language of the indictment it is charged that the defendant did, on the , unlawfully make an assault upon F. W. and did unlawfully strike and wound, with intent, him the said F. W. then and there unlawfully, purposely and of deliberate and pre- meditated malice, to kill. 1155 1156 INSTRUCTIONS TO JURY. b. Plea of not guilty — Burden of proof. The defendant hav- ing entered a plea of not guilty, the burden is upon the State to prove all of the essential elements of the crime charged be- yond a reasonable doubt. There is no presumption of guilt from the indictment preferred against the defendant; on the contrary, it is presumed that the defendant is innocent of the crime charged against him until his guilt is established beyond a reasonable doubt, which is the degree of proof required in criminal cases. That is, before you may find the defendant guilty, you must be satisfied of the existence of all the essential elements' of the crime charged beyond a reasonable doubt. If the jury entertain a reasonable doubt of the guilt of the defend- ant, then it is your duty to acquit him. c. Concise definition of reasonable doubt. A reasonable doubt is an honest uncertainty existing in the minds of a candid, im- partial, diligent jury after a full and careful consideration of all the testimony with an honest purpose to ascertain the truth, irrespective of the consequences which may follow the verdict of the jury. It is not a mere captious or speculative doubt, one voluntarily excited in the mind in order to avoid the rendition of a disagreeable verdict; it is not a doubt created by any per- sonal feeling of sympathy, or of opinion or policy not based upon the testimony ; such a doubt is considered in law as merely a captious and as an unreasonable one. To acquit upon trivial suppositions and remote conjectures is a virtual violation of your oath, and an offense of great magnitude against the inter- ests of society, directly tending to the disregard of the obligation of the judicial oath, and countenancing a disparagement of jus- tice and the encouragement of malefactors. On the other hand, the jury ought not to condemn unless the evidence removes from your minds all reasonable doubt as to the guilt of the accused and you would venture to act upon it in a matter of the highest concern or importance in your own interest. You will be justified and are required to consider a reasonable doubt as existing if the material facts, without which guilt can ASSAULT WITH INTENT TO KILL. 1157 not be established, may fairly be reconciled with innocence. In Imman affairs absolute certainty is not always attainable ; from the nature of things, reasonable certainty is all that can be at- t-ained on many subjects. When a full and candid consideration of the eWdence produces a conviction of guilt and satisfies tlu* mind to a reasonable certainty, a mere captious, or ingenious, artificial doubt is of no avail ; if a consideration of all th(> evidence satisfies you of the defendant's guilt, you will return a verdict of guilty; if you are not so satisfied, but a reasonable doubt or uncertainty as to the guilt of the defendant exists in your minds, it is your duty to acquit him. Wliether or not the proof of the guilt is brought out bej^ond a reasonable doubt need not be necessarily shown by the greater number of witnesses, but may be determined by the jury by the greater weight of credible testimony which convinces the jury of guilt beyond a reasonable doubt. d. Credibility of witnesses. The jury, in considering the credibility of witnesses, should consider their interest in the liberty of the accused, their opportunity to see and know the facts, the consistency of their testimony with all the facts and circumstances appearing in the evidence ; and if your judgment so demands, you may conclude that the guilt of the defendant is established beyond a reasonable doubt, notwithstanding a less number of witnesses may have given testimony in behalf of the State. The credibility of the witnesses, as I say, gentlemen, is entirely within your discretion. You may give them such credit as you, in your best judgment, deem proper, considering all of the circumstances appearing in this case. A court may call your attention to some of the gen- eral things that may be considered. I have mentioned a few : that is, the interest which any one may have, the interest which the defendant may have in liis liberty, the interest which any one may have who has testified in his liolialf, in his liberty, the question whether or not the persons who have testified on behalf of the State are doing it with the sole purpose and motive of a puljlic duty, or whether there is any revenge or malice or 1158 INSTRUCTIONS TO JURY. spite work; you may consider all those matters, or anything that occurs to you that ought to be considered in determining the credibility of the witnesses as applied to the evidence in this case. e. Reputation of prosecuting witness. Evidence has been in- troduced as to the reputation of the prosecuting witness, W., for peace and quiet, the object of which is to reflect upon the ques- tion of W.'s having attacked the defendant; all the court need to say is that you will give, weigh and consider that testi- mony, and give it such weight as you, in your best judgment, deem proper. f. Statute as to crime. The statute relative to this crime is as follows : ' ' Whoever assaults another with intent to kill shall be imprisoned in the penitentiary," and so forth. g. Jury not concerned with penalty. Now, gentlemen, you have nothing whatever to do with the penalty in this case ; you should be true to your oatlis and absolutely banish the question of consequences and penalty from your minds while you are considering this verdict. There is no higher calling, gentlemen of the jury, than for twelve men to go into the box and consider and weigh the evidence and know no person on earth excepting to do your duty. Counsel have, in their argument, referred to your sending this defendant to the penitentiary by your verdict. Now, that is not proper. It is not proper for you to consider. I mention that to you because I read you the statute and I want you to bear it in mind. h. WJio started the affray. In deciding the question presented by the indictment in this case, it will be necessary for you to determine who started this affray, whether it was the defendant or whether it Avas the prosecuting witness, W. It is claimed on behalf of the State that the defendant made the assault upon "W". ; that is, the first assault, and that the latter — W. — made no as- sault upon the defendant at all, and that all that W. did was merely to defend himself. On the other hand, it is claimed by the defendant that "W. made- the first assault upon him, that is, the defendant, and that ASSAULT WITH INTENT TO KILL. 1159 he struck W. — that is, the defendant struck W. — merely to repel an attack made upon him by the prosecuting witness, W. i. Law as to an assault. The jury are the sole judges of the facts in this case. To enable you to decide between the two claims of the parties — the State and the defendant — the court instructs you as to the law applicable thereto. The law is that whoever assaults another in a menacing manner is guilty of what is termed in law a simple assault. To be guilty of a mere assault upon another, it is not essential that the one making it should actually strike the person, it being sufficient merely that the one making the assault should approach another, and in a menacing or threatening manner. ]\Iere words or threatening language will not alone constitute an assault, but threatening language accompanied by menacing conduct or words is sufficient in law and constitute an assault. Now, if the jury believe or should find from the evidence that the defendant here by his own conduct did make an assault, in the manner and according to the law as I have defined it to you, upon the prosecuting wit- ness, W., and that that assault was made in a menacing manner, and that the prosecuting witness, W., did no more than to use such reasonable means as were reasonably necessary to protect himself, and that the defendant, without adequate cause and un- necessarily, hit or struck W., then you would be warranted in finding the defendant guilty of an assault. And if you should find, or if you should believe that he is guilty of assault, it will then be necessars^ for you to further consider and determine with what intent the defendant committed the act, as to which the court will instruct you directly. If, however, you should find that the defendant did not make the first assault upon W. and that he did no more than use lan- guage which provoked W., and that W. made the first assault upon the defendant, and that defendant struck W. to defend himself against attack, and that he used no more force and violence than was reasonably necessary to defend himself, then your verdict should be one of acquittal. j. Plea of self-defense— Burden of proof and degree of evi- dence. The defendant, having invoked the plea in his behalf 1160 INSTRUCTIONS TO JURY. that what he did was done by him in self-defense, the jury are instructed that the law places the burden of proving this plea of self-defense upon the defendant himself, and the degree of evidence necessary to establish this defense is different from that required to establish his guilt ; that is, the defendant must establish this plea of self-defense by what is known and termed in law as a preponderance of evidence. And a preponderance of evidence, in plain language, simply means the greater weight of credible testimony, not necessarily the greater number of witnesses, but the greater weight of credible testimony, viewing the testimony according to the rules and tests that the court has already suggested. If you should reach the conclusion in your minds that the defendant did not act in self-defense, but you should be satisfied beyond a reasonable doubt that the defendant was guilty of an assault, then it will be your duty to inquire and determine whether or not the defendant made the assault with intent to kill. k. Malice. Malice is an essential ingredient of the crime of assault with intent to kill, w^hich is the charge here. In law the intent to kill involved in this crime must be a malicious intent to kill. If you should find that the defendant did commit an assault, then you are instructed that it is your duty to look and determine whether or not the defendant made the assault upon W. with the malicious intent then and there to kill him. Malice, in law, does not necessarily mean personal ill will or hatred by one towards an individual, although that may enter into the consideration of what constitutes malice to some extent, but malice, in law, is used to designate that state of mind which prompts a conscious violation of the law to the prejudice of another. It is indicative of a mind void of all social duties and obligations imposed by law upon the person charged with crime by virtue of his social relations. Before you can make any finding that the defendant com- mitted the assault as charged with a malicious intent to kill ASSAULT WITH INTENT TO KILL. 1161 W., you must find from the eWdence that the defendant Avas actuated by malicious intent. 1. Intent to kill. The intent to kill involved in the crime charged here is what is termed in law a specific intent. It is distinguishable and materially different from the criminal intent present in a mere assault and battery, whicli is also involved in this charge and charged by the indictment. The intent in the crime of assault and battery merely — that is, in mere assault and battery — may be inferred by and charged from the wrong- ful act of assaulting and beating another. An intent in such case is an intent to cause mere bodily injury. The intent to kill involved in the crime of assault mth intent to kill means that the person charged with the crime must have intended to kill the person assaulted; the intent to kill must be a malicious intent to take the life of the person assaulted, malice, as already stated, not necessarily meaning ill will, but a wicked or depraved heart fatally bent on mischief. It is simply your duty, gentlemen, to find and determine, as you would determine any other fact in this case, whetlier the defendant committed the assault with intent to kill W. and with malice as these terms have been explained to you. Being a question of fact, it must be determined by you from all the facts and circumstances as shown by the evidence and beyond a reason- able doubt. m. Proof of intent to kill. It is not always possible to i>rove an intent to kill, nor is it essential in law that it should be estab- lished by what is known as direct testimony. It may be inferred from any evidence if the jury are satisfied that any facts have been established from whicli intent may reasonably be inferred. In arriving at a conclusion of the existence or non-existence of the intent to kill, the jury may consider any declarations of the defendant, if any you find that he made ; you may consider the nature and character of the assault, if you find that he made one, without just excuse or justification ; whether any means or methods were used which were, in your judgment, reasonably calculated to cause death. If the jury should be of the opinion 1162 INSTRUCTIONS TO JURY, that the club used by defendant in striking W. was calculated to cause the death of W., then the jury may infer an intent to kill; and if you find beyond a reasonable doubt that the defend- ant did assault W. and that he did it with an intent to kill, then it is your duty to render a verdict of guilty of assault with intent to kill. n. Direction to jury as to finding and verdict. But if, after a consideration of all the evidence, there remains in your minds a reasonable doubt as to whether defendant did assault W., or whether, though he did assault him, he actually intended to kill W., then it would be your duty to acquit him of the crime of assault with intent to kill. But if you should be of the opinion that the defendant did not commit the assault with intent to kill, it will, nevertheless, be your duty to consider and determine whether or not he is guilty of an assault and battery. The in- dictment charges that the defendant unlawfully assaulted and beat the said W. When a person is charged with an assault with intent to kill and the jury entertains a reasonable doubt of his guilt, they may acquit him of the assault with intent to kill and may find him guilty of assault and battery. o. Maij find defendant guilty of a.ater weight of credible testimony, not necessarily by a greater number of wit- nesses. You may give such credence to the testimony as your judgment dictates, under the facts and circumstances developed in this case. You are the sole judges of the credibility of wit- nesses, and may give them such credit as seems proper to you under all the circumstances appearing in this case, considering their interest, or want of interest, in the case, their ability to learn, know and relate the facts. 4. Negligence as applied to drivers of automobiles in streets and to travelers therein, defined. Negligence is the failure to observe, for the protection of the interests of another, or of one's own interest or welfare, that degree of care, precaution and vigilance w'hich the circumstances in this case reasonably demand. It is the failure to observe ordinary care under the circumstances appearing in this case. Ordinary eai'c is that degree of care which persons of ordinary care and prudence are accustomed to observe under similar circumstances. That is, ordinary care as applied to the conduct of the defendant in this ease is such care as persons of ordinary care and prudence in driving and managing automobiles in streets of a city are accustomed to exercise and observe for the protection of persons traveling in the street ; and ordinary care as applied to the plaintiff in this case is such care as persons of ordinary care and prudence observe in crossing streets, to avoid danger and injury to themselves arising from the driving of automobiles through the streets. 5. Relative rights and duties of drivers of automobiles and pedestrians in streets. The law is that automobiles luive the 1180 INSTRUCTIONS TO JURY. same rights in the streets of a city as any other vehicle running therein, and persons traveling on foot and in automobiles or driving automobiles in the streets of a city have equal rights; neither has a superior right. Equality of right in this case required that both the driver of the automobile and the plaintiff in crossing the street should have exercised ordinary care under the circumstances of this case. It was tlie duty of both parties in this case to have exercised their faculties of sight and hearing, the plaintiff for passing vehicles or automobiles, and for his ovm protection, the defendant for pedestrians in crossing the street.^ Both had the right of way, and both were required to be cautious and to exercise that degree of care which the case demands. Both were bound to observe ordinary care to avoid collision.^ It was the duty of the defendant in driving his automobile to have observed ordinary care such as would have enabled him to observe the danger to the plaintiff, whether plaintiff was pru- dent or careful, or whether he was neglectful in observing the car of defendant as it was passing along the street and approach- ing him. A driver of an automobile in the streets of a city i Look and listen: Said not always incumbent upon one about to cross a street ear track, either on foot or with a team, to look and listen for street car. Eaihvay v. Kiner, 17 C. C. (X.S.) 109. Bound "to the alert and watchful performance of the duty of all travelers on all highways to look where they are going." ^Iclllhenney v. Pennsylvania, 214 Pa. St. 44; Belleveau f. Supply Co., 200 Mass. 237. Mere failure to look and listen not necessarily negligent. Murphy v. Armstrong, 1G7 ilass. 199; McCrohan r. Davison, 187 Mass. 466; Rogers v. Phillips, 206 Mass. 308; Babbitt, Motor Veh., sees. 271, 306. 2 Equality of right. Thompson on Xeg.. 2d ed.. sec. 1300; Babbitt Motor Vehicle, sec. 913: Bowser v. Wellington, 126 Mass. 391; Murphy V. Transfer Co., 167 Mass. 199; "It is as much the duty of foot passengers attempting to cross a street or road to look out for passing veliicles as it is the duty of drivers to see that they do not run over passengers." Cotton v. Wood. 8 Com. Bench Rep. 568; Hennessey v. Taylor, 189 IMass. 583; West r. Transp. Co., 94 N". Y. Supp. 426; Wilkins v. Transp. Co., 101 X. \. Supp. 650; Berry, Autos, sees. 124, 125, 171. Rights reciprocal, Babbitt Motor Veh., sec. 240. AUTOMOBILES — INJURY BY. 1181 must observe, and this defendant should have observed, such watchfulness as ordinary care and prudence demands for foot- men, that is, pedestrians or travelers in the street — and must have his machine under ordinary control, and must take such steps in the handling of the car as ordinary care and prudence in such case demands, as will enable him to avoid injuring others who have equal rights in the streets. It is the duty of drivers of automobiles in the streets of a municipality to keep a vigilant watch ahead for vehicles and pedestrians ^ and to give a signal by blowing their horn at crossings, and at other places than crossings in the street, when ordinarily necessary to warn foot travelers of danger. Wliether or not ordinary care would have required the driver of the automobile under the particular circumstances of this case as developed by the evidence, is for the jury to decide. In doing so you may consider the conduct of the traveler, the plaintiff in this case, whether he was care- less or negligent. It is your duty to determine whether or not the neglect to give such signal was a failure to observe ordinary care under the circumstances. 6. Right and duty of person in crossing street. The law is that a person in crossing the street is not restricted to the street crossings,^ although ordinary care required of a person in cross- ing at a place other than the street crossing might, and would, under the particular circumstances of a case, require him to observe greater vigilance for passing vehicles than if he was crossing at the regular street crossing, but that is nothing more than ordinary care under such circumstances, only varying according to the circumstances. A person crossing the street at a place other than the street crossing is l)ound to take notice of the rights of those driving automobiles or other vehicles in passing along the highway at such places ; these rules are to be applied to the plaintiff's conduct in this case. Ordinary care and prudence would require plaintiff, who was crossing tlu' street at a place other than the regular crossing, aMcFern v. Gardner, 121 Mo. App. 1, 10; Uerry Autos, sec. 124. 4 Babbitt Motor Vehicle, sec. 208; Koitli r. Railway, 196 Mass. 478; Gerhard v. Ford Motor Co., 155 Mich. G18. 1182 INSTRUCTIONS TO JURY. to be on the lookout such as would be reasonably necessary in the street at that time and place, in order to have avoided injury to him from the passing automobile of the defendant. This precaution does not countenance a person walking across the street without turning at all, depending upon the caution of drivers of vehicles or automobiles, Init in crossing the street such person must have such realization of his condition and the surrounding circumstances as will enable him to respect the rights of drivers of vehicles or automobiles, and to obser\^e such ordinary care as is essential under the circumstances for his own protection/' This rule of care required of the pedestrian is an essential corallary to the rule of equality of right of drivers and pedestrians in the street. If the pedestrian was relieved of this care and caution and all the responsibility of watchfulness and care to avoid injury to pedestrians was placed upon the driver of the automobile, the right of the pedestrian would in such event be superior and not equal. I do not mean to say that one who is about to cross a street is bound to look in both directions, for that is not the law unless such rule is required in places of great congestion in the crowded thorough- fares of a city. Such a lookout is only necessary as ^\^ll enable one in crossing the street to avoid injury or danger to himself from passing conveyances, such as automobiles. "^ While one in crossing the street has a right to rely upon the care and pru- dence of one who is driving an automobile along the street, still it is his duty to obser\^e ordinary care to avoid injury to him from passing automobiles. 7. Duty of driver of automohile to negligent pedestrian. While the law confers equal and corralative rights upon both the driver of an automobile and the pedestrian in the streets of a city, requiring each to observe ordinary care and vigilance in 5 This may seem a more stringent rule than some of the decisions seem to favor, but in congested centers such a rule is demanded. But the rule is well sustained. Berry Autos, sec. 171. oLoofc out. See ante note (1). See Berry Autos, sec. 171. Pedestrian not bound to keep continuously looking. Hennessey v. Taylor, 189 Mass. 583; 3 L. R. A. (N.S.) 345. AUTOMOBILES — INJURY BY. 1183 the use thereof, and to avoid injury, there still rests upon the driver of an automobile a duty to observe ordinary care and vigilance to avoid injury to a pedestrian -who may not at the time be using his ordinary senses of sight and hearing and pre- caution for his OM-n welfare and safety in crossing the street. It becomes the duty of the driver of the automobile under such circumstances to be on the lookout for persons who thus fail to observe ordinary care for their own safety, and when discovering a pedestrian so failing to o])serve such care for his own safety, to observe ordinary care to avoid injury to him by sounding a warning or giving- a signal such as may be reasonably and ordi- narily necessary under the circumstances,^ and to observe what- ever precautions may be reasonable and ordinarily necessary under such circumstances to avoid injury to such pedestrians. 8. Wa^ the negligence of defcndani the proximate came of injury — Proximate cause defined. If you should be of the opinion that the defendant was guilty of negligence in the management of the automolule which he was running, as shown in this case, it will then be your duty to determine whether or not his negligence was the proximate cause of the injury ; that is, whether or not the negligence of the defendant was the cause of the injury. If you are of the opinion that both plaintiff and defendant were guilty of negligence as charged in their respec- tive pleading, it Avill be necessary for you to determine which negligence, that of the defendant or that of the plaintiff*, was the proximate cause of the injury. Proximate cause is the act or conduct of another party which is the immediate cause of the injury, the negligent act but for which the injury would not have occurred. Was the cause of the injury to plaintiff in this case the negligence of the defendant in operating his cai- at a high rate of speed, as charged in the petition, or was it the negligence of the plaintiff in failing to observe ordinary care for his own protection Mhile he was walk- ing across the street, as charged in the answer of the defendant? If you should find from the evidence that the defendant was ^Ity of negligence in the particulars charged and complained 7 Berry Autos, sec. 124; Lampe v. Jacobsen, 46 Wash. 533. 1184 INSTRUCTIONS TO JURY. of in the petition, and that the same was the proximate cause of the injury to the plaintiff, it will be your duty to render a verdict in behalf of the plaintiff. On the other hand, if you should be of the opinion either that the defendant was not guilty of negligence, or if the defendant was guilty of negli- gence, yet you find that the plaintiff was guilty of negligence in failing to observe ordinary care for his own safety, and that his negligence was the proximate cause of the injury, then in such case your verdict should be for the defendant. If you find from the evidence that the defendant and the plaintiff were both guilty of negligence, you are instructed that the negligence on the part of the plaintiff can only operate to bar recovery by him when it is the proximate or immediate cause of the injury. If you should find that the plaintiff's own negligence exposed him to the risk of the injury of which he complains, he is nevertheless entitled to your verdict if you should find that the defendant, after he became aware or ought to have become aware of plaintiff's danger, failed to use ordinary care to avoid injuring him and the plaintiff was thereby injured. But in considering the negligence of both plaintiff and defendant, you may take into consideration the rule already mentioned, that each one, driver and footman in this case, had a right to rely upon the observance of ordinary care to avoid injury and being injured, this right not being such as to warrant either one in failing to observe ordinary care and prudence.^ 9. Ccmcurrent negligence. If you should find that both plain- tiff and defendant were negligent in failing to observe ordinary care under the circumstances of this case, and that the negli- gence of both plaintiff and defendant directly contributed to produce the injury, and that the negligence of plaintiff was concurrent in point of time with that of the defendant, the plaintiff can not recover. But if the negligence of the plain- tiff, if you find that he was negligent, merely put him in a place of danger, and did not continue until the moment of the injury, and the defendant either knew of his danger, or by the exercise 8 Berry Autos, sec. 128; Buscher v. Transp. Co., 106 X. Y. App. Div. 493; Hennessey v. Taylor, 189 Mass. 583. AUTOMOBILES — INJURY BY. 1185 of ordinary diligence he would have known of the danger, then plaintiff's negligence did not concurrently combine with defend- ant's negligence to produce the injury, and the defendant's negligence in such case would be the proximate cause. But if the plaintiff was guilty of failure to observe ordinary care for his own safety up to and at the very moment of his injury, and the defendant by the exercise of ordinary care could not have observed, and did not learn and know of plaintiff's danger until he was so near the plaintiff that by the exercise of ordi- nary care he was unable to avoid injuring him, then your verdict should be for the defendant.^ » Fleming v. Lawwell, Fraaiklin County Com. Pleas, Kinkcad, J. As to concurrent negligence, see Drown v. Traction Co., 73 O. S. 230. Sec. 1524. Driver must anticipate meeting- pedestrian at street crossing. The jury is instructed that it was the duty of the defendant through its servant, in driving the automobile, to have antici- pated that he would meet persons at the street crossing involved in this case ; he was bound to keep his machine under such reasonable control as would have enabled him to have avoided collision Anth any one who was also usinjg reasonable and ordinary care and caution in traveling upon or crossing the street. If necessary, to avoid injuring a pedestrian crossing the street who is at the time acting prudently and carefully, the driver of the automobile should slow up, or even stop. But on the other hand, a reasonably prudent driver of an automobile in passing over street crossings when pedestrians are passing across the same, or when persons are passing across the same on a bicycle, may be justified under the particular circumstances of the case in adopting any other precautionary measure than that of slackening the speed or of stopping the car. He may adopt any other precautionary measure which would have been pursued by ordinarily prudent and careful drivers of such machines under the particular circumstances as shown in tliis case.^ t Teverousky v. The Cols. Garage & Mch. Co., Frnnklin Co. Com. PL, Kinkead, J. 118G INSTRUCTIONS TO JURY. Sec. 1525. Duy of driver to give signal at street crossing, and to adopt other precautions. While it is the duty of drivers of automobiles to blow their horns or give other signal on approaching street crossings, such as are customarily used in propelling automobiles, still even the giving of such signal alone may not be sufBcient, under all circumstances, without adopting other precautionary meas- ures to avoid injury, such as are deemed reasonably necessary, and such as are usually pursued by prudent persons under such circumstances, such as slackening the speed, stopping, or turning his machine so as to avoid the collision. It is for the jury to say whether or not the defendant here, under the circumstances of this case, did adopt any precaution- ary measures reasonably calculated to avoid the collision with the plaintiff. If he did, the defendant should be held blameless, if he did not, he should be held to be at fault. The true test always is that the driver of an automobile at street crossings must observe the care and caution which careful and prudent drivers of motor vehicles would have exercised under the par- ticular circumstances, the question in this case being for the jury.^ 1 Teverousky v. Cols. Garage, etc., Co., Franklin Co. Com. PL, Kinkead, J. Sec. 1526. Duties of drivers as to speed — The statute. One of the charges of negligence in this case is that the defendant operated its car at an unlawful rate of speed, to-wit, at the rate of about eighteen miles per hour. The general code of this state provides that no person shall operate a motor vehicle on the public roads or highways at a speed greater than is reasonable or proper, ha\dng regard for vridth, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person, nor at a greater speed than eight miles an hour in the business and closely built up portions of a municipality, nor more than fifteen miles an hour in other portions thereof, or more than twenty miles an hour outside of a municipality.^ 1 G. Code, sees. 1260.3, 12604. AUTOMOBILES — INJURY BY. 1187 Sec. 1527. Same — Violation of statute prima facie negligence — Not conclusive. It is the law that violation of a statute of the state constitutes prima facie negligence. That means simply that proof of tlie violation of a statute of the running of an automobile at a greater rate of speed in a municipality tlian is provided by statute shall be considered as pnma facie proof of negligence; but it is not conclusive; if the jury are of the opinion that in this particular case under all the circumstances, that the defend- ant ran the machine at a greater rate of speed that is provided by law, you are not required to consider that fact as conclusive of the negligence on the part of the defendant, because the fact of negligence is within the exclusive province of the jury to determine in the light of all of the e\adence and in the light of the standard of duty fixed by the statute as applicable to the peculiar circumstances of this case. If the jury is of the opinion that the evidence in this case has overcome or rebutted the prima facie case made out under the statute, and find that under all the circumstances that the defendant was not negligent in the operation of the car, you are permitted under the law to arrive at such conclusion notwithstanding the statutory standard of duty. The mere rate of speed, whether high or low, lawful or unlawful, is immaterial unless it entered into the injury and was the efficient cause thereof.' 1 Teverousky i\ Cols. Garage, etc., Co., Franklin Co. Com. PI., Kinkcad, J. See Berry Autos, sec. 164. Sec. 1528. Duties of drivers in meeting others driving in the street — Reasonable look-out — Control of ma- chine. An automobile has the same duties to perform when meeting others driving in the streets (or pedestrians) as drivers of other vehicles in the streets of a city. No matter at Avhat rate of speed the driver of an automobile may b(^ running, whether within or beyond the law, he still is bound to observe ordinary- care to anticipate that he may meet persons at any point in a 1188 INSTRUCTIONS TO JURY. public street, and especially at a street crossing, and he is bound to keep a reasonable lookout, and to keep his machine under such reasonable and ordinary control as would enable him to avoid a collision with another person using reasonable care and prudence in crossing the street. The fact whether or not the defendant did or did not run and operate its car at a greater rate of speed than was rea.sonable under the circumstances, is to be taken into consideration, together with all the other evi- dence offered in the case showing what the defendant did or did not do, and what the plaintiff did or did not do, in determining the question of the efficient cause of the injury to the plaintiff.^ 1 Teveroiisky v. Cols. Garage, etc., Co., Franklin Co. Com. PI., Kinkead, J. Sec. 1529. Driver, keeping lookout, having car under reason- able control, may assume pedestrian will not suddenly turn backward. When an operator of an automobile has had time to learn or discover, or by the exercise of a proper and ordinary lookout should have realized, learned or discovered that a person whom he is approaching, or whom he meets or is approaching is in a position of disadvantage, and v\ill probably have difficulty to avoid the coming automobile, the operator of the motor vehicle is under such circumstances required to exercise increased exer- tion to avoid a collision, which, however, is nothing moie than ordinary care under the circumstances. If the defendant acted upon the assumption that the plaintiff was passing a line in the street which defendant was passing, or would pass, if defendant assumed that he would probably pass the point w^here plaintiff was crossing the street — consider- ing the speed at which he was running his machine — and if defendant was acting prudently and carefully in your opinion, and had sufficient control of his machine, and had reasonable ground to believe that plaintiff would continue her course in crossing southwardly on the street, and if the defendant had reasonable ground to believe that he would be able to pass over the crossing north of the plaintiff without injuring her; and if AUTOMOBILES INJURY BY. 1189 the juiy are of the opinion from all the evidence that the defend- ant would have passed the plaintiff had she continued on her course southward, instead of stopping and turning backward and going northward; and if you believe under all the circum- stances that defendant was observing ordinary care and pru- dence in driving the car, and that an ordinarily prudent person in the management of the car under the circumstances of this ease would have been justified in acting on the assumption that plaintiff would continue on her course, and that she would not turn backward, and if you believe that the defendant used ordi- nary care to avoid the collision with plaintiff after he discovered that plaintiff did turn backward, and that by the use of ordinary care and prudence, the defendant was unable to avoid collision with plaintiff, either by turning his car or by stopping the same, then your verdict should be for the defendant.^ 1 Teverousky v. Cols. Garage, etc., Co., supra. Sec. 1530. Pedestrian going unexpectedly in front of auto. If a person goes unexpectedly in front of a moving auto- mobile, which is being prudently managed and controlled by the driver, who is unable, by the exercise of ordinary care and prudence, to avoid injuring such person, he is not liable. He is only liable under such circumstances if he fails to observe ordinary care and prudence in the management and control of his car, and by reason of such failure causes the injury. Sec. 1531. Warnings given pedestrian causing bevnlderment. If the plaintiff was crossing the street without giving any heed or attention whatever to the approaching automobile, and the jury believe and find that without regard to the speed of the automobile at the time, that the plaintiff would have crossed over and across the street in safety had not her attention been suddenly called to the approaching machine, and if the jury are of the opinion and find that the warnings given to her by approaching persons on the street at the time threw her into a 1190 INSTRUCTIONS TO JURY. state of bewilderment and that she miscalculated in her efforts to avoid the injury, and that she would have passed on in safety had such warning not been given her, and that the warning so given her of the approaching automobile caused her un- expectedly to step backward so as to place her in front of the machine and that the injury would have occurred in the same way whether the speed of the car was normal and unreasonable, or whether it was excessive, and that the operator of the car was unable by the exercise of ordinary care to avoid colliding with plaintiff after she did step backward, then your verdict must be for the defendant.^ iTeverousky v. Cols. Garage, etc., Co., Franklin Co. Com. PI., Kinkead, J.; 108 Miss. 1; 175 Pa. St. 559. Sec. 1532. Driver nmniiig excessive rate of speed approach- ing crossing- — Gives no signal — Pedestrian placed in sudden danger — Not negligent if injudicious choice made between hazards. If, however, you find that the defendant was running his machine at a dangerous rate of speed, and if he failed to slow up on approaching the crossing, and if he failed to sound any warning or signal of his approach, and you believe and find that plaintiff without any fault on her part was placed in a situation of danger, and that she was placed in such situation of danger solely through the negligent conduct of the defend- ant, then and in that event plaintiff is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present, and she can not be said to be guilty of negligence if she failed to make the most judicious choice between hazards presented, or would have escaped injury if she had chosen to go differently. The question in such case is not what a careful person would do under ordinary circumstances, but what would she be likely to do or might reasonably be expected to do in the presence of such existing circumstances of peril. Indeed this rule would apply AUTOMOBILES IXJURY BY. ll'Jl to the conduct of the defendant in this ease making his choice of course to avoid the collision, pro\nding he did not create the peril by his own neglect, but that plaintitf herself by her own fault placed herself in a position of danger. This question is ^^'ithin the province of and is to be determined by the jury in the light of all the circumstances developed in the evidence. But the jury Avill understand in considering and determining the cause of the danger and peril in this case, and of the question of the existence of danger and peril and who was responsible for the cause thereof, that you must consider and determine whether such peril was caused by the failure of the defendant to obser^'C ordinary care and prudence in the management and control of the machine, or whether it was due to the failure of the plaintiff to use her senses of sight and hearing, or in acting upon the warning given her by other persons of the approach of the automobile. The jury will have occasion to apply this rule of care and circumspection to be exercised by the plaintiff in making her choice of action, only in the event that you are of the opinion that her peril was due to the fault or neglect of the defendant. If you find that such peril was due to her own neglect, or was caused by the warnings given her by other persons, then you will have no occasion to consider this question and your verdict should be in such case for the defendant; provided you find under the previous instructions given you to the effect that the defendajit would not be liable if you find that plaintiff would not have been injured if she had used her senses of sight and hearing and kept on her forward course, and had not heeded and acted upon the warnings given her by other persons and that defendant could not have avoided the injury to her after he had discovered the plaintiff in a position of peril and had used reasonable care to avoid injuring her.^ iTeverousky v. The Columbus Garap;e & Machine Co., Franklin Co. Com. PL, Kinkead, J. Measure of care required of one placed in sudden peril. Pennsylvania K. R. Co. V. Snyder, 55 0. S. 342; Berry Autos, sec. 157. 1192 INSTRUCTIONS TO JURY. Sec. 1533. Automobile lawful means of conveyance — Equality of right between driver and pedestrian — An- other form. The law is that automobiles are a lawful means of conveyance, and they have the same rights in the streets of a city as any other vehicle running thereon ; and persons traveling in the streets or driving automobiles in the streets of a city have equal rights. Neither has a superior right. Equality of right in this case required that both the driver of the automobile and the plaintiff in crossing the street should exercise ordinary care under the circumstances of this case. It was the duty of both parties in this case to have exercised their faculties of sight and hearing; plaintiff for passing vehicles or automobiles, for his: own protection, and the defendant for persons propelling or riding a bicycle. Both had the right of way, and both were required to be cautious. Both were bound to observe ordinary care to avoid collision. It was the duty of the defendant in driving his automobile to have observ^ed ordinary care, such as Avould have enabled him to have observed the danger of the plaintiff, if he was in a position of danger, whether the plain- tiff was negligent in observing the approaching ear as it was passing along the street and approaching the street crossing or not.^ 1 Brender i\ Parker, Franklin Co. Com. PL, Kinliead, J. See ante, sec. 1523, note 2. Sec. 1534. Correlative duties of driver of auto and pedestrian. A driver of an automobile in the streets of a city must observe, and it was the duty of the defendant to have observed such watchfulness as ordinary care and prudence demands for other pei'sons driving a M'heel or propelling a wheel on the street — that is, as to footmen or travelers in the street, by wheels and otherwise ; he must have his machine under such reasonable and ordinary control, and must take such steps in tlie handling thereof as ordinary care and prudence in such AUTOMOBILES — INJURY BY. 1193 ease requires, sucli as will enable him to avoid injuring others who have equal rights in the street. It is the duty of drivers of automobiles in the streets of a city to give a signal by blowing the horn or giving other signals at crossings to warn other persons who are about to or who are crossing the street. Sec. 1535. Ordinance as to passing vehicles and carrying lights — How considered. Two ordinances have been introduced in evidence in this case ; one by the plaintiff touching the manner in w^iich vehicles are required to pass into another street; another touching the obligation of one to carry a light on wheels or bicycles. The violation of these ordinances, if they were violated as claimed in this case, does not, as does the violation of a state statute, constitute prima facie evidence of negligence; but the jury may simply consider the rule of conduct prescribed l)y ordi- nance as one of the items of evidence reflecting upon the matters complained of, and may give it such consideration, together with all the other evidence in the case, as the jury may deem proper. The mere violation of the law of the road, as prescribed by ordinance, or by the common law, does not give rise to a prima facie case of neglect in such way as to create a liability. The question is whether the violation of such a duty constitutes negligence and whether it did in fact proximately cause the injury. If the jury find that such violation of duty did proxi- mately cause the injury, your finding should be in favor of the plaintiff, provided you find that such violation of duty was the direct, immediate and proximate cause of the injury. But if you should find that such violation of duty did not directly cause the injury, but that notwithstanding such violation of duty by the defendant, the plaintiff himself could have avoided the injury to him by the exercise of ordinaiy care on his part, then the defendant would not be responsible, and the plaintiff in such case could not recover. 1194 INSTRUCTIONS TO JURY. Sec. 1536. Operator of auto may assume persons at street crossing will exercise ordinary care. An operator of an automobile has a right to assume, and to act upon the assumption, that every person whom he meets in the streets or at street erossing-s will also exercise ordinary care and caution according to the circumstances, and that others traveling on the street on a wheel or bicycle will not recklessly expose themselves to danger, but will rather make an effort to avoid it. If an operator of an automobile discovers that a person whom he is approaching or whom he meets, or who is approaching in a position of disadvantage and will probably have difficulty in avoiding the coming automobile, the driver of the latter is required to exercise ordinary care under the cir- cumstances to avoid injuring him. Sec. 1537. Driver of auto and of other vehicle both negligent — Concurrent negligence — Proximate cause. If the jury find that both plaintiff and defendant were guilty of negligence, and tliat the negligence of both was contempor- aneous and continuing until after the injury, and that the negli- gence of each was a direct cause of the injury, without which it would not have occurred, the plaintiff may not recover, and your verdict should be for the defendant. But if you find that the negligence of the plaintiff, if he was guilty of negligence was not contemporaneous and continuing, as stated, you will then determine whether the negligence of the plaintiff or that of the defendant was the proximate cause of the injury. The law regards only the proximate cause, attaching legal consequences thereto, consequently the jury must understand the meaning of the term. Proximate cause of an injury is that cause which is a natural and continuous sequence unbroken by any new, independent cause, produces the injury, and without which the injury would not have occurred. Under the rules given you concerning the alleged negligence of both plaintiff and defendant, the jury is instructed that if it should find that the plaintiff was guilty of negligence in any of the particulars UTOMOBILES — INJURY BY. 1195 charged, and that the defendant was also guilty of negligence but that the negligence of plaintiff was not contemporaneous and continuing with that of the defendant, and that plaintiff's negligence, without the intervention of the negligent acts of the defendant, would not have produced the injury, and that the negligence of the defendant in such case was a new and indepen- dent cause without which the injury would not have occurred, and that the same produced the injury, your verdict should be for the plaintiff. But if you find that the negligence of the plaintiff was not concurrent with that of the defendant, and that there was no interv^ening new and independent negligence of the defendant producing the injury, but that the negligent acts of the plaintiff produced the injury, your verdict should be for the defendant.^ 1 Drown v. Traction Co., 73 O. S. 230. Sec. 1538. Whether driver of auto acting as agent or servant of owner — Or whether person hired it for himself and operating it for himself alone. It is not claimed that the defendant Mr. ]\i., was in the auto- mobile which collided with the automobile in which the plaintiff Avas riding. Before the defendant can be held liable in damages it must appear by the greater weight of the evidence, that the driver of the defendant's automobile was at the time of the accident acting as the agent or serv^ant of the defendant, and within the scope of his employment as such agent or ser\^ant. If at the time of the collision the driver of the defendant's automobile was not operating the automobile in the service of the defendant, but had in fact hired the automobile from the defendant and was at the time operating it for himself alone,^ and not as the servant or agent of the defendant, then that will be an end of your deliberations and your verdict must be for the defendant, because if H. B. had hired the automobile from the defendant, and was using it solely for his own use and pleasure at the time of the accident, and not as the agent and servant of the defendant, and for the defendant's use and J196 INSTRUCTIONS TO JURY. benefit, then the plaintiff's right of action is against H. B. and not the defendant in this case. And that is true although I\I. miglit have allowed him to hire and use the machine because he knew he could handle it properly. But if you find the fact to be that the driver of the automobile was at the time of the accident acting as the agent and servant of the defendant, and within the scope of his employment by the defendant, you will proceed to inquire whether the driver of the defendant's automobile was guilty of negligence in the running of the defendant's automobile, and whether that negligence was the proximate cause of the collision and consequent injury to the plaintiff. These two vehicles which came in collision both had the same right in the highw^ay at the intersection of these two streets. It was the duty of the driver of each of the vehicles to exercise reasonable and ordinary care to avoid a collision with the other.^ ijewett V. Murnaii, Com. PI. Court, Franklin Co., Bigger, -T. Sec. 1539. Equality of right of street railway and driver of automobile — Relative duties of each — Famil- iarity of driver with crossing. It is the law that a street railway company and a person driving an automobile in the streets of the city had equal rights therein. It is sometimes said that neither has the superior right and that their rights are both equal. But tliis equality of right from the very nature of things can not give them both the right to use and occupy the same part of the street at the same time. And sometimes the one must give way to the other in reason and in sense. This so-called equality of right has its qualifications and limitations. If it appears tliat one or the other has obtained an apparent precedent right over the other by actual occupancy and use of a portion of the street, or, if it appears that either party has made the first move in the direction of the use of a street and has made an earlier start toward such use which is apparent to another using ordinary care to observe that fact, AUTOMOBILES — INJURY BY. 1197 under such circumstances as to make it readily and ordinarily apparent to the other that he, too, can not use that portion of the street in safety, then may it be said that the equality of right is for the moment suspended and the one who, by the use of ordinary care may, or should observe the fact of the prior use, such precedent attempt to make such use by the other one, or acts on his part showing a purpose to proceed to such use under such circumstances showing that such use must for the moment be exclusive, then such other person must yield the use of the street to the one and must not attempt to make use of it himself. Now, gentlemen, negligence as the term is used in law, is defined in a simple way — one which is easily understood by anyone — as tlie failure to use such care as ordinarily prudent persons would have used under the same or similar circumstances. And ordinary care is likewise defined as such care as ordinary persons would use under such circumstances. Then when you undertake to apply those terms to each case, it will be stated that ordinary care as applied to these parties here is such care as a driver of an automobile would have exercised under the same or similar circumstances as appear in this case. And as applied to the defendant company, ordinary care would be such care as an ordinarily prudent motorman would have observed under the same or similar circumstances as appear in this case. It is the duty of the operative of a car being run by the defendant company to run it at a reasonable rate of speed, and to sound a gong upon the approach of a street crossing, and to use ordinary care to have the car under such reasonable control as would enable the person to either check the speed of the car or, if necessary, upon discovering the danger of a person in the street, even whether that person is acting prudently or not, to stop the car. On the other hand, it is the duty of a person driving an automobile, on approaching the street crossing, not to stop, look and listen in the comniercial railroad sense, but to use his faculties of sight and hearing to observe whether or not there 1198 INSTRUCTIONS TO JURY. is a car approaching-. As stated to you in the special instruc- tions, he is bound to take into consideration the fact that while the street railway company has not the superior right of way, yet its cars can not move to the right or the left and give way to a pedestrian, or to one in a vehicle as readily and as easily as a driver of an automobile or a pedestrian may give way to the railway company. And it may also be said that anyone who is familiar with any particular crossing — anyone who is living in a city, and anyone who has frequently gone over a particular crossing, is chargeable in a way with knowledge that he thereby obtains with reference to the characteristics or the nature of that particular crossing, and if there are any surrounding conditions and circumstances that are unlike other crossings, he is bound to take notice of these, and he is bound to keep them in mind and to observe ordinary care for his own safety. At the same time, a driver of an automobile has the right to act upon the assumption that a driver of a street car Avill also observe his duties and that he will also observe ordinary care in the management and control of that car, and that he will sound the gong, and that he will run it at a reasonable rate of speed, and the like.^ 1 Bates t\ The Columbus Ry. & Lt. Co., Franklin Co. Com. PI., Kinkead, J. Sec. 1540. Duty of driver of auto at railroad grade crossing". The jury is instructed that it is the duty of the driver of an automobile when approaching railroad tracks at a grade cross- ing, where the vision is obstructed, to stop, look and listen, and to do so at a time and place where stopping and where looking and where listening will be effective. So that it follows that one who drives an automobile over a railroad crossing at grade, without stopping his machine to look and listen at a point where he may obtain a clear view is guilty of neglect.^ The jury will determine therefore, etc. iBrommer v. Penn. Co., 179 Fed. 577, 29 L. E. A. (N.S.) 925; N. Y. C, etc., R. Co. V. Maidment, 21 L. R. A. (N.S.) 794, 168 Fed. 21. AUTOMOBILES — INJURY BY. 1199 Sec. 1541. Driver of automobile placed in sudden peril through neglect of another. The juiy is instructed that where a driver of an automobile is placed in a position of sudden danger or peril without his fault, but by reason of the neglect of a railway company at a crossing (or street intersection), all that is required of him is that he use ordinary care under the circumstances in acting for his o^vn safety; if he does not select the very wisest course, but makes an honest mistake of judgment in such sudden emergency, such mistake will not constitute negligence on his part, although it may appear from the evidence that another course might have been better and safer. Whether the plaintiff acted with ordinary care in deciding the course to be taken by him in such sudden peril is for the jury to determine.^ 146 L. R. A. (X.S.) 708, note; Nicol v. R. & Nav. Co., 71 Wasli. 409, 4.3 L. R. A. (X.S.) 174, 128 Pac. 708; Dickinson v. Erie R. Co., 81 N. J. L. 464, 37 L. R. A. (N.S.) 150; Railroad v. Snyder, rnt 0. S. 342. Sec. 1542. Injury by collision between two automobiles — Plaintiff charges excessive speed — Defendant counterclaims for injury to his machine by same collision. 1. Statement of claims of plaintiff and defendant. 2. Burden of proof. 3. Credibility of witnesses — Testimony and evidence dis- tinguished — Ultimate fact to he found. 4. Negligence of parties to he determined— Negligence in the use of automohiles m city. 5. Duty of driver in approaching street intersection,. 6. Drivers of automohiles, required to observe law of road. 7. Duty as to speed. 8. Both parties claiming relief, but one can recover. 9. Minor son of defendant driving car, hi<; authority — Liability of father for negligence of son. 1200 INSTRUCTIONS TO JURY. 10. Same continued — Automobile, though not dangerous instrumentality, still may become so, if recklessly driven Effect of legislative regulations. 11. Same continued — Implied authority by father to son to use and drive auto. 12. Same continued^-J ury to determine whether negligence of either plaintiff or defendant caused collision. 13. Same coniinued — Contributory negligence and concur- rent negligence as applied to case. 14. Precautionary instruction as to description of speed by ivitnesses. 15. Direction as to verdict. 1. Statement of claims of plaintiff and defendant. The plain- tiff brings her action for injury to her automobile, stating that she was driving along State street in , , at about six p. m., and that the defendant drove a certain automobile at a high and reckless speed, at the rate of thirty-five miles an hour, M'ithout giving any signal or warning of the approach of the car toward the West State street crossing, southbound on Center street, and that the automobile of the defendant struck that of the plaintiff with great force and violence the right front of plaintiff's automobile, wholly without fault or negligence on the part of the plaintiff. The petition then describes the injuries which plaintiff claims were done to her machine and claims damages in the sum of The attitude of the defendant with reference to that claim is one of complete denial; that is, he denies each and every allegation in the plaintiff's petition contained. That is, he denies that the person in charge of his machine was guilty of any negligence whatever. And then he sets forth a counter- claim in tort, alleging negligence, and claiming damage. 2. Burden of proof. The burden of proof is on the plaintiff to establish by a preponderance of the evidence her claims ; that is, that the defendant was negligent in the particulars charged, and that such negligence was the sole and proximate cause of AUTOMOBILES — INJURY BY. 1201 the injury to her machine. The burden is upon her to show that she was without any fault ; that she was not guilty of any negli- gence herself which was a contributing cause to her injur>', but that on the contrary, the injury was caused solely and only by the negligence of the defendant. This she must do by a pre- ponderance, or the greater weight of tlie evidence. That term has been defined to you so many times that you fully under- stand it without further explanation. You need only to bear in mind that it does not mean the greater number of witnesses but it means the greater weight of the evidence that comes from the mouths of the witnesses on the witness stand. Now on the other hand, the burden of proof rests upon the defendant to not only show that the injury to his inachine was not caused by his own negligence, but that it was caused by the sole and only negligence of the defendant. And this he must establish by the preponderance or the greater weight of the evidence. 3. Credihilify of tvitnesses — Testimony and evidence dis- tinguished-— Ultimate fact to he found. The credibility of the witnesses must be determined by the jury. In a conflict of testimony it becomes the province of the jury to weigh and consider what each witness testifies to; consider its probability or its improbability under the circumstances of the ease ; the opportunity of the witnesses to learn and know the things to wliieh they testify, the attention and location of the witnesses to the matters in question and in dispute; their ap- parent demeanor on the witness stand, tlieir attitude in giving their testimony, their relations to the parties. You may con- sider whether or not any of them show bias or i)artiality or preju- dice to either side. The jury is under no obligation to believe the statements of a witness merely because he has made them, l)ecause your prov- ince here, gentlemen, is to determine what credence you will give the testimony of witnesses. If you think under all the circumstances developed in the case that any witness has given testimony that seems improbable under all the circumstances, it 1202 INSTRUCTIONS TO JURY. is within your province and duty to cast that aside and out of your mind. If you are of the opinion that a witness has given testimony which is false in part and true in part, you will give it due weight accordingly. Bear in mind, gentlemen, that testimony is what is given by the witnesses from the witness stand; evidence constitutes that which remains in the case after the jury has carefully sifted and weighed the testimony given by the witnesses and has deter- mined its credibility and has determined how much of it you will act upon or receive and consider, and how much of it you will reject. And when you have gone through that process of sifting the evidence and eliminating any part of it that you may deem proper, then it will become your duty to draw from the evidence what we call in law the ultimate fact ; that is, the fact to which the law which will be given you by the court is to be applied. Now the ultimate fact, or the fact which is involved in this case on the plaintiff's side is whether or not the defendant was guilty of a wrongful act, a violation of a duty which was the cause of her injury; whether or not she herself was free from fault. The ultimate fact on the side of the defendant is whether or not his machine was injured by the wrongful act of the plain- tiff, and whether or not he was without negligence on his part. But one of the parties can recover, but the court instructs you as to the law bearing upon the respective claims made by each side so as to enable you to apply it to the evidence in drawing therefrom the ultimate fact, and finally by your verdict to determine what is the ultimate fact. Wliile the court gives you the law, still your verdict in a way is a finding of mixed law and fact. 4. Negligence of parties to he determined — Negligence in the use of automohiles in a city. The jury will first determine whether either one or both of the parties were guilty of negli- gence; whether either one was guilty of negligence will depend upon the duties and obligations which the law imposes upon each one. AUTOMOBILES — INJURY BY. 1203 Negligence is defined to be the failure of a person to exercise the degree or measure of care required of him by the law under the facts and circumstances of the ease presented. In the use of an automobile in the streets of a city, the person in charge thereof and driving the same is required to use ordinary care in the management and control of the same to avoid injury by collision to and with another machine which is being driven in the street at the same time. The ordinary care required is such care as persons of ordinary care use and observe in the driving, management and control of an automobile under similar circumstances and conditions to those which are disclosed by the evidence in this ease. This measure of care contemplates taking into consideration the nature and character of the machine, its ordinary use, the ordinary manner of driving and controlling it so as to avoid collision with other autos being driven in the streets, at street intersections. 5. Duty of driver in approaching street intersection. Each person who is driving an auto in approaching a street crossing and intersection, at and over the same, is bound to observe the laws of speed as regulated by statute, and is required to be on the lookout for other automobiles which may be driven on the other street which intersects with the one on which he is driving ; such person is bound to observe ordinary care by keeping his macliine under reasonable control so as to avoid collision with another auto which may be passing over such street intersection at or about the same time. The rule requiring drivers of autos in approaching street crossings or intersections to have the same under reasonable control so as to guard against collision with other autos as stated applies to both parties in this case. The driver of an automobile must exercise his rights in driving in the streets with a due regard for others using the streets in the same locality.^ 6. Drivers of autos required to observe law of the road. Another duty and obligation required of drivers of autas, 1204 INSTRUCTIONS TO JURY. and which is and was applicable to both parties in this case, is that they shall observe the law of the road. The law of the road is fixed by statute in this case.^ It requires drivers of vehicles, which embraces automobiles, to keep to the right so as to leave one-half of the road free. It also requires drivers of automobiles on meeting another automobile, to keep to the right so as to leave two-thirds of the road tree. The violation of the statute fixing the rule of conduct concerning "the law of the road," constitutes a prima facie case of liability, but it is not con- clusive; it is of course rebuttable. The violation of the law of the road as thus stated to con- stitute actionable negligence, that is, to give cause for legal redress, must be shown by the evidence to have been a direct or proximate cause of the injury complained of. The mere violation of the law of the road which has nothing to do with the cause of the injury will not give rise to legal liability. '^ 7. Duties as to speed. I read to you now, gentlemen, in sub- stance, the two statutes that regulate the matter of speed, which constitutes the law of Ohio on that subject. One provides * that a person who operates a motor vehicle on the public roads or highways at a speed greater than is reason- able or proper, having regard for wadth, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person, is guilty of a misdemeanor. The other one ^ provides that whoever operates a motor vehicle at a greater speed than eight miles an hour in the business and closely built up portions of a municipality, or more than fifteen miles an hour in other portions thereof, shall be guilty of a misdemeanor. 1 Hennigan v. Wright, 5 Pennew. Del. Rep. 537; Christy v. Elliott, 216 111. 31, 108 Am. St. 196; Mclntire v. Oraer, 166 Ind. 57, 117 Am. St. 359. 2 Gen. Code, sec. 6310. 3 Violation of the law of road is evidence of negligence, but not conclusive. Newcomb v. Boston Prot. Dept., 146 Mass. 600. See Babbitt Motor Vehicles, sees. 248, 939b. 4 Gen. Code, sec. 12603. 5 Gen. Code, sec. 12604. AUTOMOBILES — INJURY BY. 1205 These two pro\asioiis apply to the driving of an automobile in the streets of a city, because the highways apply alike to streets and country roads. It is to be observed, and the jury will keep in mind in considering the e\idence, and deducing therefrom the ultimate fact relating to the conduct of the parties, the fact that the rule of conduct which the Legislature has pre- scribed as applicable to the speed of automobiles, is that no person shall drive at a greater speed than is reasonable or proper, and that in driving sucli vehicles the driver must take into consideration the width of the streets, the traffic therein, as well as the "law of the road" socalled. You will obser\^e that the statute makes a separate injunction that one shall not drive an auto so as to endanger the property of another. In addition to the foregoing specific injunction as to the conduct of parties driving such vehicles is the statute as to speed which forbids driving at a greater rate than eight miles an hour in the business and closely built up portions of a city, and not more than fifteen miles in other portions. It is a rule of law that because such a rule of conduct as that just mentioned is prescribed by a legislative enactment, it is to be regarded as a standard of duty which is binding on every- body, and especially is a rule of conduct which courts, and that means court and jury, must apply and follow. Therefore, the rule is that proof of the violation of statutory rules of conduct, such as the above, constitutes what is termed in law a prima facie liability. That is, in the absence of proof to the contrary, case would be entitled to recover. In this case the so-called prima facie case, if any there is in favor of either party, and that is for the jury to determine, is disputed. Hence, without regard to the effect of the prima facie case rule, the jury must look to all tlie facts and circumstances and determine therefrom the ultimate fact; that is, what rate of speed either or both the parties were going. Whether it was excessive, and if so, whether the fact that either one or both of such machines was being driven at an unreasonable or improper or excessive speed, or so as to endanger property, was a direct 1206 INSTRUCTIONS TO JURY. or proximate cause of either injury complained of by either party. You will determine whether the failure of duty, if there was a failure of duty, on the part of either party was the direct cause of injury, or whether the injury was caused by the failure to have the cars under reasonable control, or because there was a violation of the law of the road. The court has now stated the law and the rules of conduct required of both" plaintiff and defendant in this case, which you are to apply in your deductions of the facts from the evidence, in order to place the responsibility, if any there is, on either party, according to the law and the evidence. 8. Both parties claiming relief — But one can recover. As both parties are claiming relief, that is, as each one is asserting a cause of action in tort against the other, it follows that only one can recover, if either has the right to recover at all under the law and evidence. Plaintiff can not recover if she herself, through her agents, was guilty of negligence directly contributing to the injury to her car. Nor can the defendant recover against plaintiff if his son, who was driving the car, was negligent, and if defendant became responsible for his conduct by implication or otherwise, as shown by the facts and circumstances as disclosed by the evidence. 9. Minor son of defendant driving car — His authority — Lia- hility of father for negligence of his son. The court will now instruct the jury concerning the relation of the son of defendant to himself — that is to the defendant. As to the relation between defendant and his son who was driving his machine, the ordinary rule of law is that a father is not liable for the independent tort of his son, unless the son sustains the relation of agent to his father concerning the par- ticular service or act involved and under investigation. The natural tie of relation between father and son does not of itself give rise to, or create the relation of agency, or of master and servant between them. There must be something more than that in order to show that a son is authorized to AUTOMOBILES — INJURY BY. 1207 drive an automobile under circumstances such as may appear in this case. Nor can the inference of agency l)e drawn from the mere fact that the son had possession of the machine and was driving it at the time in question. The owner of an automobile is not liable for an injury result- ing from the negligent operation of the machine by his son unless the father either had knowledge of the possession and operation of the machine by the son, or unless the father had given his consent expressly or impliedly that his son may drive the machine for the use and benefit of his family as well as for the use and benefit of the son himself." 10. Same continued — Automohile, though not dangerous instrumentality , still may become so, if recklessly driven — Effect of legislative regulations. Wliile an automobile is a lawful means of conveyance in streets and highways; and while it is not a dangerous device in the common-law sense, that is, like a firearm or other dangerous agency, inherently dangerous, and being an ordinary vehicle of pleasure and business,^ still by reason of its power and weight it may become so if carelessly or recklessly driven and managed. Because of the fact that the legislature in the interest of public safety has seen fit to pre- scribe rules as to speed and other regulations for the protection of persons and property, prescribing criminal penalties for violations, it is incumbent upon courts in adjusting rights and liabilities on the civil side as between parties to adopt and apply rules of conduct looking to the safety of life and property. It would seem from the provisions of the law concerning the con- duct and management of automobiles that they have been put in a class of agencies which, thougli not inherently dangerous, that still they may become so unless they are operated and managed wdth reasonable care commensurate Muth the dangers incident to their running at places in a municipality wlicrt^ « Reynolds v. I5uck, 127 Iowa. 001; Maher v. Benedict, 108 N. Y. Siipp. 228; Smith v. Davenport, 45 Kan. 423, 23 Am. St. 737; T!al)l)itt Motor Vehicle, sec. 551. 'Cunningham v. Castle, 127 N. Y. App. Div. 580, 111 X. Y. Supi>. lO.-.T. 1208 INSTRUCTIONS TO JURY. caution and prudence is required to avoid danger to persons and property. 11. Same continued — Implied authority hy father to son to use and drive auto. Tlie court is of the opinion that the ordinary rule of master and servant, which relation may exist between parent and child, where the former gives express orders to do a particular thing, will not apply in all its force to the facts and circumstances as they may be developed in this case. And the court now therefore, instructs the jury that where a parent purchases an automobile for the pleasure and use of his family and the members thereof, and where from the conduct, acts, statements and declarations of such parent touching the use of such machine, a purpose or intent on his part may be inferred to authorize his minor child to use and drive such automobile for the use and pleasure of himself, that is, the parent, and also of such minor child or of any member of his family, then in such case the jury may infer if it deems proper under the circum- stances, and find that such parent impliedly consented that his minor child had authority to use and drive such machine with- out previous express authority being given in any particular instance. If under such circumstances, the father keeps such automobile at or near his home, and under his control, where his minor child has free access to it, and if such minor child resides with, and is under the control of the parent, and if the implication of authority to his child, if there is any, to use the auto is warranted by the circumstances and conditions, in the opinion of the jury, it is then the duty of such parent to adopt reasonable precautions against an improper use of his machine by his minor child.^ Hence it follows, gentlemen, from this statement of the rule of duty which the court adopts for the direction and guidance of the jury in this case, that if you conclude and find that the 8 This portion is an innovation; it is not in accord with the rule of lia- bility as usually stated which holds the father liable only when the son is acting as the agent of the father. It is thought that the father ought to be held where the son runs an auto under implied authority^ recklessly and carelessly. AUTOMOBILES — INJURY BY. 1209 son of the defendant had implied authority from his father to take and use his machine for his, the son's, individual use and benefit, and that such son was guilt}^ of negligence in the manage- ment and running of the car at the time in question, the defend- ant would in law be responsible for his acts, whether he had knowledge of the fact that his son was so running the car at the time or not. But if on the other hand, there is no warrant under the facts and circumstances disclosed by the evidence in the opinion of the jury for the inference of implied authority from defendant to his son to so use the car, or if, on the contrary, defendant had given express directions to his son not to take out or use the machine for his individual use and benefit wdthout the consent of his father, in such case the defendant would not be responsible for any negligence of his son, on the occasion of the injury com- plained of, if he was guilty of negligence. If such should be the conclusion and finding of the jury on the question of authority or agency of the son, that would end your deliberations so far as the right of plaintiff to recover against the defendant, because in such case she could not recover unless there was such implied authority given by the defendant to his son. 12. Same continued — Jury to determine whether negligence of either plaintiff or defendant caused collision. The court has now stated all the rules of law applicable to the respective claims of the parties. The jury will bear in mind that the court states the law applicable to the claims made by plaintiff as to speed, and the evidence offered in support thereof, and also to the claim of defendant concerning the negligence charged against the plaintiff. You will sift the testimony, select what you deem worthy of credence and belief, and deduce therefrom by the aid of the law given you by the court, the ultimate fact as to whether plaintiff was free from negligence, and defendant was negligent, or whether defendant was not negligent and tlic jthiintiff was guilty of negligence. In other words, you are to search for and deter- mine what was the proximate cause of the collision and injury. 1210 INSTRUCTIONS TO JURY. Was it, as claimed, due solely and alone to excessive speed of the defendant, or was it due solely and alone to negligence of the plaintiff by running on the wrong side of the street, or in failure to use his senses in discovering the danger of the col- lision, and in failing to adopt reasonable care and means to stop his car to avoid collision ? You may, if the evidence so warrants, in your opinion, base your conclusion on matters other than the fact as to which car ran into the other. The question is whose fault was it that the two cars collided. It was the duty of each to avoid collision, whether either or both was careless or negligent, that is, conceding for the sake of illustration that one or the other was guilty of negligence. Notwithstanding that fact, it was the duty of the one who ma}^ not have been negligent to have observed ordinary care for his own safety after having discovered the negligence of the other party, or one who should have discovered it by the exercise of prudence and care. If defendant was running at an excessive rate of speed, and plaintiff saw or could have seen the car of the defendant in time, it was her duty, by the exercise of ordinary care and the means at hand to stop her car, and, if she failed to do so, plaintiff can not in such case recover. She can only recover, provided she was not at fault or did not contribute to her own injury, if the defendant ran at an excessive rate of speed and that was the cause of the injury. Defendant can only recover if being without contributory fault, the plaintiff negligently ran into his machine. Neither may recover if either was guilty of contributory negligence, or if both were guilty of concurrent negligence. 13. Same contitiuecl — Contributory negligence and concurrent negligence as applied to case. Contributory negligence is negli- gence on the part of one claiming relief against another, where both are guilty of some negligence, but the contributory negli- gence of the complainant is nearer in point of time or of cause and effect in producing the injury. That is, it causes the injury and defeats recovery. So contributory negligence on the part of either will defeat their recovery. Concurrent negligence AUTOMOBILES — INJURY BY. 1211 as I mentioned the term a while ago, which will bar recovery, may be put, and is put by the law in this state in the following language: If both the plaintiff and the defendant were negli- gent, and the negligence of both directly contributed to produce the injury, neither the plaintiff nor the defendant has any right to recover, and you should in such case, render a verdict against both parties." 14. Precautionary instruction, as to description of speed hy witnesses. The court gives you a precautionary instruction con- cerning the description by the witnesses as to the rate of speed. Concerning the rate of speed, you are permitted to enter the realm of probabilities, that is, the jury deals in probabilities. Absolute certainty is not always expected, nor is it always possible. But the jury is not permitted to enter into the field of speculation in arriving at your verdict. In arriving at your verdict you must be governed by the testimony and not by any speculation or conjecture of your own. Witnesses, expert and non-expert, may express their views and opinions for the consideration by the jury. These you may weigh carefully in the light of all the conditions and circum- stances disclosed l)y the evidence. You will consider the view point of the witness, his opportunity to judge of the speed, his relations to the parties, or his interest, if any. You should con- sider whether the witness was specially attentive or indifferently attentive, whether it was guess or conjecture, or an opinion expressed by a person of average intelligence in a position to form a reasonable estimate of speed.''^ In this connection bear in mind the statutes which the court read to you which both fixes the maximum rate of speed beyond which persons are not permitted to go, and also provides that a motor vehicle shall not be operated at a greater rate of speed than is reasonable or proper. 15. Direction as to verdict. Now, gentlemen, the court Iins stated the rules of law for your guidance and application. T now finally charge you as to the verdict which you may rnulrr » As to concurrent nof,'lige'iico, Drown v. Traction Co., 73 O. S. 2.">0. 10 Nicholson v. Traction Co., 14 N. V. (N.S.) 187-H. 1212 llNSTRUCTIONS TO JURY. or may not render, according as you may find the facts to be. This may serve to clear any misunderstanding that you may have from the perplexities of the questions and the law. First. If you find plaintiff not guilty of negligence proxi- mately causing the injury to her machine but find defendant guilty of negligence which was the sole cause of plaintiff's injury, then your verdict should be for the plaintiff, and in such case you should assess her such damages as you will find from the evidence will reasonably compensate her for the injury sustained. Second. If you find defendant not guilty of negligence proxi- mately causing injury to him, but find plaintiff guilty of negli- gence which directly caused the injury to the defendant, your verdict will be for the defendant, and you should in such case assess him such damages as will reasonably compensate him for the injury by him sustained. Third. But if you find that both plaintiff and defendant were guilty of negligence which directly contributed to the injury which each sustained, then your verdict will be against both of them. These forms of verdict will be placed in your hands.^^ 11 Park V. Smith, Franklin Co. Com. PL, Kinkead, J. Sec. 1543. Injury to passenger in automobile, the guest of one who hires from owner who furnishes chauf- feur to drive — Liability depending upon con- tract of hiring, as well as upon whether driver is engaged in the service and business of the owner.^ i. Under general denial plaintiff bound to prove use of machine hy hirer icithin bailment of hiring, as also 1 McCatham v. Columbus Transfer Co., Franklin Co. Com. PI., Kinkead, J. The machine was hired to go to Urbana and return to Columbus; on the return the machine was kept out by one of the parties con- cerned in the hiring, who gathered up a party of men and women, who visited wine rooms, taking liquors with them in the machine. No report to the garage was made after return from Urbana, though the machine was driven to the place of defendant to obtain gaso- line late in the evening, but the evidence did not directly show that knowledge of this fact was brought to defendant. AUTOMOBILES — ^INJURY BY. 1213 3. Plaintiff miist sJiow chauffeur to Jiave been within the business of owner. 4. Intoxication of passengers, and chauffeur — Presence of liquors in car at time of ^crcck — Contributory negli- gence of plaintiff in use of liquors, so as to be unable to use ordinury care — Circumstantial evidence — Inferences. 5. Evidence that chauffeur permitted another to drive car at time of injury, and as to intoxication, consisting of declarations as part of res gestae. 6. Scope of employment and service of chauffeur, to be determined by contract of hiring. 7. Assesment of damages — Fair and reasonable compensa^ tion to both defendant and plaintiff. 1. Under general denial plaintiff bound to prove use of machine by hirer within bailment of hiring, as also that chauffeur was engaged in service and business of master. The general denial made by defendant to the plaintiff's petition, denies the claim that the contract of hiring embraced the trip on which the injury occurred, as well as the claim of the plaintiff that the chauffeur of defendant was driving the car at the time of the injury, or if he was driving it, that he was engaged in the business of the defendant. The burden is thereby cast upon plaintiff to establisli the fact that the automobile was being run and operated by the chauffeur of defendant, either within the terms and conditions of the contract of hiring thereof, by express authority, or l)y and under the implied authority and consent of defendant by proof of facts and circumstances disclosing such authority, as well as the fact that the chauffeur was engaged in tlie service and business of the defendant. The court charges you that where an owner of an automobile hires the same to another, and furnishes a chauffeur whom it has in its employ whose duty it is in such service to drive its 1214 INSTRUCTIONS TO JURY. well as tlie fact that the chauffeur was engaged in the service and business of the defendant. The court charges you that where an owner of an automobile hires the same to another, and fumislies a chauffeur whom it has in its employ whose duty it is in such service to drive its (his) machines for persons hiring the same, and such chauffeur is driving such car with either the express or implied authority and consent, and he is guilty of negligence in operating the car causing injury, such facts, if proven raise a presumption of, or prima facie, liability on the part of the defendant in the absence of evidence to the contrary.- 2 White Oak Coal Co. v. Rivoux, 88 O. S. 31. But the rule of burden of proof is, that though plaintiff may, when making out his (her) case, be content wdth merely pro- ducing sufficient evidence to show a prima facie case of liability, still if defendant in its (his) defense produces evidence sufficient to countervail the presumption or prima facie case — that is, if the evidence of defendant is of equal or of greater weight — the burden still rests upon plaintiff to produce evidence of greater weight than that introduced by the defendant, because the law requires her (him) on the whole case to establish, by a pro- ponderance of the evidence, the fact that the chauffeur of the defendant was driving the car at the time of the injury.-'^ 3Klunk r. Railway, 74 0. S. 125. 2, Creclihility of untnesses — What to he considered — Men and women on "joy ride" using intoxicating liquors. In deciding the question of credibility, which is the sole province of the jury, you will take into consideration all the facts and circumstances surrounding the case. You are not bound to take the statement of a witness merely, because he or she may have made the same from the witness stand. You may disbelieve all or part of what a witness might state, as you may decide. It will be your province and duty to weigh all of the statements of the witnesses in the light of all the facts and circumstances developed by tiie evidence; to consider the reasonableness thereof in connection AUTOMOBILES — INJURY BY. 1215 -Nvith all the facts, the probability of their tmtli, or the im- probability of the truth thereof; the demeanor and conduct of the witness or -witnesses while upon the stand ; you will consider whether or not any of the witnesses have shown any reticence in giving the testimony; whether there has been a disposition to withhold something material ; and if so what effect it should have upon the credibility of their statements. You may con- sider whether any of the witnesses have been frank, open and apparently sincere, or whether they have been otherwise, not frank, open and not apparently sincere and truthful. You have the right, and it is your duty, to consider all of the conduct of all the parties who were present and concerned in this automo- bile incident ; you may consider, if you deem proper, the motives, objects and purposes which any of them had in the automobile trip which they were making, whether it would liave a tendency to affect the credibility. You may consider also all of the evi- dence relating to the question of whether or not the parties who have testified and who may have been in the automobile trip had been engaged in the drinking of intoxicating liquors, and whether or not in your judgment it had anything to do with their credibility in the statements given by any of them from the witness stand. You may consider whether or not there was any reason under all the circumstances for withhold- ing anything relating to this trip or to the conduct of any of the witnesses who were involved therein and who have given testimony, or whether or not there was any lack of motive to withhold anything as to which may have been inquired of while upon the witness stand. And when you have considered all of the statements given by the witnesses from the witness stand and have determined upon what you will believe and what you will disbelieve, if anything, you will then deduce from the testimony which you shall finally decide to be credible and worthy of belief and by the application of th" rules of law given you by the court for your instruction and guidance, you will deduce, as I say, from the evidence the ulti- mate facts which are involved and in controversy in this case. 1216 INSTRUCTIONS TO JURY. 3. Plaintiff must show chauffeur to have been within the husi- ness of oivner. Ownership of an automobile alone is not in any sense to be taken as evidence of agency. The burden is upon the one complaining of personal injuries resulting from negli- gence in the operation of a machine, to show not only the fact that the person driving the car at the time was the servant of, the owner, but the person complaining is bound also to prove the further fact that such driver was at the time of the accident engaged in the master's business either with the master's ex- press knowledge and consent, or with the master's implied con- sent, which may be derived from the facts and circumstances of the particular case; and tliis question must be decided by the 2^vj from the evidence in this case. The test of the master's liability for the act of a servant is whether such servant was acting at the time of an injury com- plained of, either wnthin the scope of the employment, or within the line of the service and business of the master.* The term "in the course or scope of employment or authority" means while the servant is engaged in the particular ser\dce of the master, and employment, or under particular authority.^ That is, it refers to the fact that the servant is engaged in the service of the master, or while he is about the master's business. It does not necessarily mean during the period covered by the employment, but has reference to the act of being engaged in the service and business of the master. And if during the period of time which may be covered by the employment of a servant by a master, the servant steps aside from the line of the business of the master and departs from the line of service, although he is still within the employment of the master, such departure from the line of service at a particular time by the servant will relieve the master from responsibility for the acts of neglect on the part of his servant at the time when he is so acting outside of and beyond the line of the business of the master, and without and beyond the line of the service of his master. For any acts done by a servant for his master which may in any sense be warranted by the implied authority and which may AUTOMOBILES — INJURY BY. 1217 be reasonably drawn from any fact or circumstances appearing in the e\ddence, if any there may be, which relates to and has to do with the particular acts of a servant which are complained of by a party litigant as being negligent, and from which it may be reasonably inferred that such acts are within the implied authority given by the master, the latter may be held responsible for the consequences of the acts of the servant. Now, gentlemen, applying the rules of law toucliing the claims made by the plaintiff, if you find that H. was still right- fully using the machine under a contract of hiring, and that it was being driven by the chauffeur and servant of the defendant at the time of the injury, and that such servant was at such time of the injury driving the car at an unlawful rate of speed and such unlawful and negligent rate of speed was the direct and proximate cause of the injury to plaintiff, then in such case the defendant is responsible for the acts and negligence of the chauf- feur, and your verdict should in such case be for the plaintiff, and she will be entitled to recover reasonable compensation in damages for the injury sustained by her. 4 The charge that was given in White Oak Coal Co. v. Rivoux, supra, was to the effect that when ownership, and the fact that the driver was in defendant's employ, the burden was on the defendant to show that the accident happened outside the scope of the employ- ment. This was held error. 5 Babbitt Motor Vehicles, sec. 537 ; Slater v. Advance Thresher Co., 97 Minn. 305. 4. Intoxication of passengers and chauffeur — Presence of liquors in car at time of wreck — Contributory negligence of plaintiff in use of liquors, so as to he unable to use ordinary care — Circumstantial evidence — Inferences. Some evidence, how- ever, has been introduced touching the conduct of all the parties who were passengers in the car as to the. drinking of intoxicating liquors. It is alleged by plaintiff in her petition that the chauf- feur of tlie defendant was incapacitated by intoxication from driving tlie car, and evidence Iims been offered as to intoxicating liquors being found in the wreck of the machine, as well as of declarations of persons involved in the transaction as to intoxi- cation of the persons connccti'd therewith. 1218 INSTRUCTIONS TO JURY. This evidence may be considered by the jury not only in respect to the liability of the defendant, but also as affecting the right of plaintiff to recover, as well as reflecting upon the cred- ibility of the witnesses. The e\adence touching this matter may consist in part of direct evidence as well as of circumstantial evidence. Circumstantial evidence consists of inferences drawn from the proven facts. The jury may make such inferences from the presence of the intoxicating liquors in the machine and in possession of the party, as well as from the manner of driving of the machine, and from the nature and character of the accident as it may deem and consider to be warranted therefrom. The jury may also make such inferences from the conduct of each and all of the parties in visiting places where intoxicating liquors are sold as you may deem proper and reasonable. The court charges the jury that persons who go out upon rides such as was taken by plaintiff and the other persons in the automobile on this occasion, are bound, and this plaintiff was bound to be prudent and careful in the use of intoxicants so that they ^^^ll not become under the influence thereof, so that they may not be unable on account of the use of such in- toxicants to exercise ordinary care for their own safety under the circumstances. It is also incmnbent upon such persons under such circumstances that they shall use reasonable care and precaution for their own protection and safety, and this plaintiff was bound so far as she reasonably could under all the circumstances to use reasonal)le care and precaution for her own safety. Such persons are bound to obser%'e ordinary care to see that their conduct in visiting a saloon and drinking intoxi- cants and in carrying intoxicating liquors in the machine, shall not thereby contribute to the use of liquor by and the intoxica- tion of the chauffeur. And this duty and obligation was im- posed upon the plaintiff in this case under all the circumstances in the ease. If the jury believe and find from the evidence and the cir- cumstances in this case, that the conduct of the plaintiff and her companions in respect to the use of intoxicating liquors AUTOMOBILES — INJURY BY. 1219 can not be chargeable with anj' such conduct, if any there was, of any other member of the party, in the matter of contributing to the intoxication of the chauffeur, if he was so intoxicated. 5. Evidence that chauffeur permitted another to drive car at time of injury and as to intoxication, consisting of declarations as part of res gestae. It is claimed in evidence that at the time of the injury that some person in the party, other than the chauffeur and servant of the plaintiff, was driving the automo- bile at that time. The testimony touching this matter is con- flicting, consisting in part of direct testimony of parties who were in the machine, and in part of testimony of other persons having no connection with the occurrence as to\ declarations alleged to have been made by the persons who were in the machine at the time of the injury, which were made soon after the wreck, as well as of a person involved in the transaction alleged to have been made soon after he had regained conscious- ness. This evidence as to the alleged declarations of the parties so concerned and involved in the transaction were admitted by the court because of their being considered in law to have been part of the res gestae, that is, part of the transaction, part of the act of driving the machine over the embankment. Such testi- mony was admitted under the law upon the theory that if such declarations were made, they were made in such immediate connection v^ith the wreck, and were made under the influences of the same without time for reflection, and were so concomitant with the principal act and so connected with it as to be regarded as the result and consequence of motives or conduct as part of the principal act or transaction under investigation. These are the reasons in law making such alleged declarations compe- tent as evidence, but whether they were made, and the weight and effect to be given the same, if made, is within the province of the jury to determine. With these instructions you will consider all of the e^ndence on this point; you will consider the question of credibility of those giving testimony on this matter, tlieir interest or want of interest in that to which they have testified ; you will consider 1220 INSTRUCTIONS TO JURY. whether the person who was driving probably did not know the road, or whether he was acquainted with it, and determine the fact whether some one of the party other than the chauffeur was driving the machine at the time of the injury. 6. Scope of employment and service of cJmiiffeur to he deter- mined hy contract of hiring. The scope of the employment and the line of service of such servant or chauffeur is to be deter- mined by the jury, with reference to the nature and extent of the contract of hiring of the machine which the jury may find to have been in this case. To aid you in determining the questions, the court instructs the jury that the bailment is a contract made and entered into between the parties, one of whom is hiring an automobile and the other in letting the same. If the facts and circumstances relating to the hiring show that the automobile in this case was hired by H. or by H. and G. jointly, for a special trip on a par- ticular business and to a particular place and return, and if their conduct or their statements and any directions which they or either of them may have given to the driver as to the dispo- sition and return of the machine so hired, will, in the opinion and judgment of the jury, warrant the inference and conclusion that the bailment, or the contract of liiring was to end at a particular time, then it must be concluded by the jury that the contract of bailment or of hiring that may have been entered into by the parties of the automobile in question, was to end at such time as the jury may find the fact to be from the evidence. The particular question presented in this case by the evidence with reference to the contract of hiring of the automobile which the jury must decide is, whether the persons who hired this machine from the defendant hired it to go to Urbana and return, and whether such contract of hiring ended Avlien they returned to Columbus; or whether there are any facts or circumstances in connection with the hiring and use of the machine by the parties in this case such as to warrant the implied authority and consent on the part of the defendant that such machine should be used by H. at the time of the injury complained of. AUTOMOBILES INJURY BY. 1221 The jury Avill carefully look to and consider all the evidence hearing upon this point. Consider what was said and done at the time of the hiring; consider what either G. or H. said or did wlien they returned to Columbus witli reference to what was to be done with the car; consider all the testimony given by these two persons on the witness stand ; consider the conduct and acts of the chauffeur, when he drove to the place of business of the defendant ; consider whether his conduct was sucli as to give notice to the defendant of his presence there, and of his purpose and intent as to the further dri\'ing of the car ; and determine the fact whether H. was using the car in pursuance of the original hiring, or whether such further use of the same, under tlie conditions and circumstances was reasonably and properly chargeable to the knowledge of the defendant. If the jury finds that H. and G. by their conduct and decla- rations of either one or both of them, and from the conduct and statements of the chauffeur, indicated that they had completed their contract of hiring of the automobile when they returned to Columbus, if the jury finds that such contract did so end at that time, and that the chauffeur or driver was given to under- stand or was directed that they did not further desire to use the machine, or if it appears from the evidence that the chauf- feur was directed by H. to go to the barn and report, but that instead of doing so, the jury finds that the chauffeur himself voluntarily offered to drive II. to another place in the city of Columbus before going to or returning to the bam, the jury Avould in such case be warranted in finding that the contract of bailment and of hiring such automobile ended at the time of their return to Columbus, or at the time when by their conduct and their declarations they indicated that such contract was ended or completed, if the jury finds that tlieir conduct and declarations did so indicate. If the jury should find that tlie contract of hiring did so end at that time and tliat the eliauffeur was directed by II. to take the macliine to the bam, and tliat, instead of doing so, sueli chautTeur and driver of his own accord voluntarily drove II. out to another 1222 INSTRUCTIONS TO JURY. place ; ana ii II. accepted such service and allowed the driver to keep such machine at that place, and to further continue driving the same for his use and benefit, then in such case the chauffeur departed from the line of his service and was then no longer acting within the scope of his employment or within the line of service of his master.^ And if in such case H., after having been requested to return it to the barn, and if H. assumed to direct what further use should be made of the machine from that time on up until the accident, and the chauffeur consented thereto, and drove and managed the same in obedience to the request and directions of H., and did not report to the defend- ant, and the defendant did not know of such use of his machine, and did not give its consent expressly or impliedly to such use by H. or by its servant, the chauffeur, then in such case the de- fendant can not be held responsible for any negligence of the driver of the automobile during any period of time when he was driving the car contrary to the contract of hiring, or outside of and beyond the scope of the service and business of the de- fendant. If such be the finding of the jury as to the contract of hiring and the conduct of the chauffeur, then the jury is instructed that the plaintiff became and was the guest of H., and in such case the liability for the negligence of the chauffeur or of the person who may have been driving the car at the time of the injury rests upon II., and not upon the defendant. In such case who was driving the ear is immaterial for the reasons stated. 7. Assessment of damages — Fair and reasotiahle compensation — To both defendant and plaintiff. A philosopher once was asked the question, "How shall injury be repaid?" His answer was, "Injury shall be repaid with justice. " If that justice, according to the law and facts, demands the aw^ard of damages, then dam- ages shall be awarded. If justice demands that damages shall not be awarded, then no damages may be awarded. Remember that every person, corporation or individual stands equal before the law. Both are entitled to a square deal. If under these instructions and upon the facts as you shall find them to be, you find in favor of the plaintiff, you will award AUTOMOBILES INJURY BY, 1223 her such compensation as you believe and find the nature and extent of the injury sustained by her to demand and justify. Pier claims in this respect have been stated to you and need not be repeated here. It will include pain and suffering and the time covered by the period during which she may have suffered or will suffer. You are admonished that in the assessment of the damages, you are to be guided and controlled by the evidence. It is from the evidence that you must determine the nature and extent of the injuries, and this includes the medical expert testimony. You must not permit yourselves to be controlled and governed by your individual notions irrespective of the evidence. The idea in compensating personal injury in money is the nearest approach to the repair of the loss or detriment which the law has been able to devise. Compensation is not restitution, for there can be no restitution in personal injury; money can never constitute adequate and full compensation. So that in arriving at what is fair and reasonable compensation, the jury is not to consider alone the plaintiff, but the rights and situation of a defendant are to be considered. It is to be remembered that every defendant who is called upon to pay damages has its duties and obligations to perform, so that in assessing damages, the fair and reasonable compensation must not alone be fair and reasonable to the plaintiff, but it must be fair and reasonable to the defendant as well. It is to be remembered that all assessments of damages in favor of a plaintiff, to be paid for by a defendant in personal injury, may to a more or less extent fall not alone upon the particular defendant, but through such defendant and his or its necessities it may ultimately affect others. This is the principle lying at the basis of compensation laws. The jury will, therefore, assess fair and reasonable compen- sation to plaintiff, if you find in her favor. 1 McCatham v. Columbus Transfer Co., Franklin Co. Coin PI., Kinkcad, J. The machine was hired to go to IJrbana and return to Columbua; on the return the machin Wis. 373, I Am. and Eng, Enc. of Law, 505. See also Greenleafs Ev., sec. 550; 2 Daniel's Neg. Inst., sec. 1373a. Eh-uin v. Drum, 133 Mass. 5GG. 1250 INSTRUCTIONS TO JURY. Sec. 1572. Demand and notice essential to hold endorser. It is conceded that said defendant 0. is the endorser of said note. In order to hold said 0. as such endorser of the note the plaintiffs must prove by a preponderance of the evidence that demand was made on ]\1. — that is, a presentation of the note and a request to pay it when due on the day of February, 19 — . If the demand was made on INI. personally, or, if he was gone from home, upon any agent of his at his home or place of business whose duty it was to transact business or pay money for him; if there was no agent and ]\I. was away from home, then at the house of his wife or servant, or, in the absence of wife or servant, of some other person belonging to the family, and if there was no such agent and no person at home, and upon reasonable inquiry none of the persons I have named could be found and M. was gone, no demand was necessary. If demand was made and payment refused, notice of such demand and nonpayment, or if no demand could be made, notice of nonpayment should have been communicated to said 0. by the first ordiary means of giving him the information taking into account his whereabouts.^ The endorser may waive demand and notice of nonpayment, and any conduct on his part toward the plaintiff, calculated to put a person of reasonable prudence off his guard, or to induce such person to omit demand or notice of nonpayment will dis- pense with the necessity of taking such steps. That such demand was made and notice of demand and nonpayment was given, or that the same was waived by the defendant, 0., the plaintiff must prove by a preponderance of the evidence.^ 1 By mail, Walker i\ Stetson, 14 0. S. 89. By the next mail after de- fault, Lawson v. Bank, 1 O. S. 206. By mail if living in same town, 8 O. 507. 2 From Mills t'. Vollrath, Sup. Ct. No. 1728. Judgments of lower courts affirmed, 27 W. L. B. 36. As to waiver, see Hale v. Danforth, 46 Wis. 554. Sec. 1573. Endorsement of note — Notice. You are instructed that an endorsement of a note, that is, the writing of one's name upon the back of the note, is an BILLS AND NOTES. 1251 absolute contract in writing by which the endorser binds himself to pay the note, if on presentment the maker does not, provided due notice is given of nonpayment. In order to render one who becomes an endorser on a note not liable for the payment, the note must be presented at maturity to the maker for payment, and if payment be refused, notice must be given immediately to the endorser, and whether this has been done is a question of fact submitted to you for determination.^ 1 Farr v. Ricker, 46 0. S. 265. Sec. 1574. When maker of note entitled to demand. You are instructed that it is not generally necessary that presentment or demand of payment be made at a specified place of the maker of a note on the day it becomes due or afterwards, in order to maintain a suit against the maker. But if the maker has funds at the appointed place where the note is payable, and it is not duly presented, he will be exonerated from the payment of any damages that may have been sustained and costs of suit, but will not be relieved from the payment of the note.^ 1 Bridge Co. v. Savings Bank, 40 0. S. 224. Sec. 1575. Forgery as a defense — Estoppel to set up. The jury i.s instructed that one may by his conduct, statements, or silence estop himself from claiming tiiat his signature to a note is a forgery, but before he can be estopped by mere silence, it must be made to appear by the evidence that there was an obligation and duty on the part of the defendant to speak out and declare the fact that his name was not signed to the note ; it must also be made to appear that he had an opportunity to speak, that he also knew, or had reasonable ground to believe that the plaintiff as holder of the note would rely, or was relying on his silence concerning the signature, and that plaintiff so relied upon liis silence and that he was injured thereby.^ If, therefore, the jury finds, etc. iShinow V. Bank, 84 O. S. 207, Am. Ann. Cas., 1012, C, .')78 and note; Veile V. Judson, 82 N. Y. 32; Wiser v. Lawler, 189 U. S. 260. CHAPTER LXXX. BREACH OF PROMISE TO MARRY. SEC. SEC. 1576. Contract of marriage. 5. Claim that plaintiff af- 1577. Breach of promise of mar- flicted with disease. riage. 1578. What amounts to a breach — 1. Contract of marriage — Essentials as to time. Its nature — How made. 1579. Promise made in considera- 2. Effect of physical condi- tion of sexual inter- tion or impediment. course. 3. Request to perform essen- 1580. Acts of preparation of mar- tial to action. riage. 4. Deceit as to age. 1580a. Measure of damages. Sec. 1576. Contract of marriage. A contract of marriage consists simply in a promise on the part of the one to marry the other, and in a promise on the part of the other to marry the one. It is a mutual promise, the con- sideration of the one's promise being the other's promise. Contracts of marriage may, like other contracts, be either express, that is, based upon actual, particular words, a direct proposition on the one part, and a positive, explicit, verbal acceptance of the proposition by the other, or the marriage contract may arise by implication; that is to say, that such a contract may come into existence, as a result of the conduct and demeanor of the parties by their acts towards and treat- ment of each other, by frequency of association together and by other circumstances of like nature.^ 1 May be shown by conduct. Wetmore v. Mell, 1 O. S. 26. Admissions of intention to marry may be shown. Cooper v. West, 3 W. L. B. 431. Sec. 1577. Breach of promise of marriage. 1. Contract of marriage — 7^^ nature— Hoiv made. 2. Effect of physical condition or impediment. 1252 BREACH OF PROMISE TO MARRY. 1253 3. Request to perform essential to action. 4. Deceit as to age. 5. Claim that plaintiff afflicted irith disease. 1. Contract of marriage — Its nature — How made. This is a case for the breach of promise of a contract of marriage. A contract of marriage according to the law of the land, is to be considered as an ordinary civil contract attended by the same legal consequences as any ordinary civil contract. While it is the foundation of all society, still when we come to treat it in a court of justice it is to be regarded as an ordinary civil contract. It is not entered into with the same formalities as ordinary civil contracts, and it may not be entered into m one ease like it would be in another. The contract of marriage consists simply in a promise on the part of the one to marry the other, and a promise on the part of the other to marry the one. That is, it is a mutual promi-^e between a man and a woman to enter into the marriage relation. The condition of the contract, in law, is the mutuality of the promises. "Whereas, the consideration in morals is the affection between the parties, but we must say that every civil contract is founded upon a consideration, and so we say that in law the consideration for a contract of marriage is the mutual promise made by each of the parties. Now testing this kind of a contract as we do ordinary civil cases, it is essential to constitute a contract to marry that there must be a meeting of the minds of the contracting parties. That is, there must be an offer on the one part and an acceptance on the other. Contracts of marriage may be entered into by their offer and acceptance. Then, on the other hand, contracts of marriage may be inferred from the acts and the declarations, and from the conduct of the parties ; that is, if the acts and the declarations and conduct of the parties are such as would lead reasonably prudent men to believe and infer that the parties intended that they should become man and wife, then the jury would be justified in concluding under siich circumstances that a contract of marriage had been entered into by the parties. 1254 INSTRUCTIONS TO JURY. 2. Effect of physical condition or impediment. As I stated, the promises being mutual, each is usually the consideration for the other. Putting it more concretely, a further consideration may enter into the contract, as the expectation of each of the parties to obtain and associate in the marriage relation, with one whose physical condition is free from any serious disease which might be of such a nature and character as to unfit either party as a companion in the marriage relation. Each party may con- tract with the other in tlie expectation of having a person who can be a comfort and a satisfaction in every way in the marriage relation. We must not lose sight of the fact that we are dealing with a marriage contract, pure and simple, however, and that such a contract does not require the one to take the other if such other person is in an imperfect condition by reason of having a serious disease which might entail great discomfort, expense and risk in the marriage relation. But if it appears from the evidence that there was no physical condition or impedi- ment existing at the time of the formation of the contract, if tliere was one entered into, then the matter of the complaint made here as to the physical condition of the plaintiff may not be considered in connection with the formation of the contract. 3. Request to perform essential to action. As a general rule, it may be said that when an obligation is entered into to do a certain thing in the future, and when an express time is indicated within which the thing shall be done, before suit can be brought for the breach of an obligation, there must be a request by the person who seeks to enforce the contract of the party to perform his obligation. And the marriage contract is no exception to this rule of law, because it is regarded as merely a civil contract. It appears in evidence, however, in this case, that the defendant himself put an end to whatever relations may have existed between the parties in this case, so that the question as to whether or not there was a time fixed for the marriage and whether the plain- tiff requested the defendant to carry out and perform his contract is not material. BREACH OF PROMISE TO MARRY. 1255 4. Deceit as to age. The defendant here by his answer claims that the plaintiff deceived him as to her age, claiming to be several years younger than she was and that she has not been truthful and fair with him in many ways, etc. The court instructs the jury that such a claim does not in law constitute a defense in this kind of an action, but the jury may consider it, if it is supported by evidence, by way of mitigation of damages. 5. Claim of affliction ivith disease. The court will now instruct the jury as to the claim made by the defendant that the plaintiff was afiflicted some time during the relations existing between the parties with a disease known as tuberculosis. It is for the jury to determine when, if at all, a contract of marriage was entered into between the parties to this case, and if it should appear to the jury that before the contract of marriage was entered into between them, if there was one, that the plaintiff was afflicted with the disease as claimed here, then the court instructs the jury that the rule of law applicable to such a case is, that when a man enters into an engagement of marriage with a woman, he is presumed to have made himself acquainted with her appearance and her physical condition so far as it may be reasonably apparent to him, and if he enters into a contract of marriage with knowledge of any physical defects, or under such circumstances that he should be charged with knowledge of them by reason of their apparent condition, and he changes his mind and refuses to marry the woman, the existence of such a disease will not constitute a defense to an action for breach of promise. But if the jury, on the otlur hand, sliould find from the evi- dence that the plaintiff and the defendant entered into a contract of marriage some time prior to the month of , when it is claimed by the defendant t'siat the plaintiff became afflicted with the disease of tuberculosis, then the court instructs ihe jury that the law applicable to such a situation as it might be presented in this case is as follows ; The defendant claim-, that tlie disease made its appearance about the time as just /tated, and that this physical condition oa 1256 INSTRUCTIONS TO JURY. her part continued on throughout the remaining portion of the year 19 — , and he claims that he became discouraged because of such disease and had a change of mind and attitude towards the plaintiff. The court has already pointed out the light in which the marriage contract is considered in law as well as its peculiar nature, and the jury, using its own knowledge of the char- acter of the disease, which it is claimed plaintiff had, together with any evidence offered in this case as reflecting thereon, may consider the consequences of the consummation of the marriage contract under such circumstances; and if it should appear that the plaintiff was afflicted with the disease as claimed, the jury may consider the phj^sical condition so far as it might affect the immediate parties to the contract. The court may properly state that the law should not enforce such a contract under the conditions claimed here with the same rigidness as this class of contracts is generally enforced in law. There is a growing tendency of opinion that the marriage rela- tion should not be entered into between parties afflicted with such a disease as the one claimed because it is considered to be incurable, and this view demands some attention and con- sideration in the matter of the enforcement of a marriage con- tract under such conditions as is claimed to exist in this case. The court takes the position that if it should appear by a pre- ponderance of the evidence in this ease that the plaintiff became afflicted with the disease of tuberculosis which became known to the defendant, then he would have a right upon this ground to terminate any contract of marriage that might be existing between them. In making such a contract, the defendant must not be held bound to take a woman who may have a disease that might unfit her as a wife and which might involve him in expense and risks from such a disease as is complained of in this case. Therefore, the court instructs the jury that if it finds that the plaintiff was not afflicted with the disease of tuberculosis at the time of the contract of marriage as claimed, but if it does BREACH OF PROMISE TO MARRY, 1257 appear that such a disease was contracted by her subsequently to the contract of marriage, and the jury linds that she had such a disease, and that the defendant broke the contract of marriage existing between them for tliis sole reason, that would in law, be a defense in this action, and the jury should in such event find for the defendant.^ But, on the other hand, gentlemen, if you should find that the plaintiff did not in fact, at any time during the existence of the contract of marriage, as claimed, have the disease of tubercu- losis, but if you find that notwithstanding this fact the defendant in good faith believed that she had such disease, and had reason- able grounds for such belief, and that he broke the contract of marriage for this reason, then, you may consider this matter not by way of defense, but merely for the purpose of mitigation, that is, reducing the damages which you may assess against the defendant, if you find that a contract of marriage was made between the parties, and that the same was broken by the defendant.^ iSee 112 Pa. St. 244. 2 Temple v. Davis, Franklin Co. Com. Pleas, Kinkead, J. Sec. 1578. What amounts to a breach — Essentials as to time. As a general rule it may be said that when an obligation is entered into to do a certain thing in the future, and partly when an express time is indicated within which the things shall be done, before suit can be brought for the breach of an obligation, there must be a request by the person who seeks to enforce the contract of the party to perform his obligation. The marriage contract is no exception to this rule of law, being regarded by the law simply as a civil contract. Before there can be a breach of the contract there must be an express request to consummate the marriage, or .something which unde"* the circumstances of the particular case removes the necessity of that request. A man could not complain of a woman for breach of promise to marry unless he requested her to keep her engagement, neither 1258 INSTRUCTIONS TO JURY. can a woman complain of a man for breach unless there is a request made of him. If a man agrees to do a thing within a reasonable time and afterwards upon being requested to do it refuses, then he has repudiated his obligation and broken his contract. In the absence of a request and in the absence of indicative circum- stances, he may intend to keep or lie may intend to break his contract, but it may be important to see what his intentions are. If it can be said that he intends to break or keep his contract, it may be more difficult to determine and to say that he has actually broken his engagement. If the plaintiff became convinced or fearful that the defendant did not intend to carry out his part of what was understood to be their engagement to marry, she might have gone to him and verbally tendered herself to him, and requested that he should marry her in fulfillment of the contract. That would have been a perfect and thorough compliance with the law, and a thing eminently proper. But circumstances may intervene which will remove the necessity for this explicit action upon her part. If it appears from the evidence that there was an engagement, and that the defendant himself broke that engagement, the fact appearing to the jury either by the acts or words of the defend- ant, or by both his words and his conduct, then it is not necessary that the plaintiff should have offered herself to the defendant in marriage, or that she should have formally requested him to marry her before bringing this suit. The law assumes that where a man is under an obligation to fulfill a contract, if he volun- tarily renounces it, he puts himself in the attitude of refusing in advance to carry out the contract, and that knowledge is clearly brought home to the other contracting party, then the necessity for the offer or request from the other party is removed and taken away, because it is useless. If you find that there was a contract of marriage, and a breach of that contract by the defendant, the only question remaining for your determination is. Was the plaintiff damaged by this breach, and if so, in what sum ? ^ 1 Wright, J., in Hunter v. Graham, Hamilton Co. Com. Pleaa. BREACH OP PROMISE TO MARRY. ' 1259 Sec. 1579. Promise made in consideration of sexual inter- course. If you find from the evidence that the defendant did promise the plaintiff to marry her, but that the inducement for fhe making of such promise by the defendant was that the plaintiff should permit him to have sexual connection with her, then I charge you that such promise would be void, and the defendant not bound by it. An agreement to marry, made by a man to a woman in consideration of having sexual intercourse with her before marriage is immoral and void. "As the object of the law is to repress vice and immorality, and promote the welfare of society, all promises which originate in a breach or violation of its principles and enactments, are void. This law will not there- fore lend its aid to enforce any contract which will lead to the commission of crime or immorality, or which is subversive of public morality." So if there was a contract of marriage, but it was made on condition and on the consideration that the plaintiff should allow the defendant to have sexual intercourse with her before marriage, such contract was void and no recovery can be had for its breach, it being founded on an immoral consideration. "But it is no defense if the promise was made after fornica- tion ; if made with no view to a repetition of the offense, or before fornication, if that was not the consideration of the promise, if the consideration was the mutual promise of marriage — the promise of each to marry the other — the contract was a valid one notwithstanding there may have been sexual intercounio between the parties, either before or after the promise was made. If it appears that the promise was made by the defendant with a view to seduce the plaintiff, and that the defendant thereby did in fact seduce the plaintiff, this will be no defense, but may go to the jury in aggravation." ^ iWm. E. Evans, J., in Little v. Gearhart; affirmed 51 O. R. 580; Red^'- wick Meas. Dam. 455 (300). As to promise based on sexual inter- course being void, see Hanks v. Naglee, 54 Cal. 51 -, Boijjncrcs r. Boulon, 54 Cal. 146; Steinfeldt r. Levy, Hi Abb. Pr. (N.S.) 20; Goodall V. Thurman, 1 Head, 209. 1260 INSTRUCTIONS TO JURY. "A promise to marry is not unfrequentlv one of the base and wicked tricks of tlie wily seducer to accomplish his purposes, by overcom- ing that resistance which female virtue makes to his unholy designs. Whenever seduction follows an engagement to marry, it may well be asserted that the promise on the part of the man was intended to cover his designs upon her virtue, by winning her affections and confidence. The fact that the hypocritical suitor is prepared to destroy her character, shows conclusively that it w^as not his inten- tion to make her his wife." Goodall (-. Tliurman, 1 Head, 209. In Hotchkins t'. Hodge, 38 Barb. 117, the court held: "A wrong done to the female, such as sexual intercourse with her, by her alleged suitor, will not make a promise to marry, founded thereon or arising therefrom, invalid or inoperative. Such «, promise is not liable to the objection that it encourages immorality." ^ Sec. 1580. Acts of preparation for marriage. Evidence has been offered to prove that the plaintiff made some preparations for marriage by procuring bedding, etc., and statements by her at the time, explanatory of such acts of preparation. To be admissible in evidence such declarations must be made at the time of such alleged act of preparation, must be concomitant with them, and explanatory of them ; and such acts must be before the rupture between the parties, before the breach of the promise. If such declarations were made, but were merely narrative of a past occurrence or transaction, or the acts of which they were explanatory were after the rupture between the parties, they are incompetent as evidence, and you will not consider them, but will treat them as excluded from the case. If such declarations were made and were concomitant with and explanatory of acts of preparation for marriage, and such acts were before a rupture between the parties, they are competent to be considered by you.^ 1 Evans, J., in Little v. Gearhart, 51 0. S. 580; Wetmore r. Mell, 1 O. S. 26. As to promisee's conduct in getting ready, see People t\ Kenyon, 5 Parker's Cr. C. 254 ; and her declarations, 2 Am. and Eng. Enc. of Law, 521. Declarations to strangers of the fact of the engagement are not competent unless part of the res gestae. Stribley v. Welz, 8 O. C. C. 571. BREACH OF PROMISE TO MARRY, 1261 Sec. 1580a. Measure of damages. If you find iu favoi* of the plaintiff, you will award lier damages to indemnify her for the loss she may have sustained by such breach of promise. This would embrace the injury to her feelings, affections, and wounded pride, as well as the loss of marriage. There is no precise rule by which to fix the amount of com- pensation. The measure of damages is a question for the sound discretion of the jury under the circumstances of the case as disclosed by the evidence. This is to be sound discretion uninfluenced by passion or prejudice; and the amount of damages is to be such sum as the jury, exercising such judgment and discretion under all the circumstances of the case as shown by the evidence, determine and find is proper and adequate to indemnify and compensate the plaintiff for the loss and injury so sustained. If the defendaut's conduct in the matter of the promise and breaking it (if he did so) was ruthless and wanton toward the plaintiff,^ you may, if you think it proper under all the circum- stances of the case, in addition to compensatory damages award exemplary damages in such sum as you think proper under the circumstances. The entire amount of the award can not exceed the amount claimed in the petition.^ 1 Duvall V. Fuhrman, 3 O. C. C. 305. 2Wm. E. Evans, J., in Little v. Gearliart. Judgments affirmed, 51 O. S. 580. Seduction may be shown to enhance damages. Mattiiews v. Cribbett, 11 O. S. 330. Value of defendant's estate may be shown to show greater loss. 8 0. C. C. 571, 3 O. C. C. 305, and subse- quent acquisitions of property may be considered. 3 O. C. C. 305. CHAPTER LXXXI. BRIBERY. SEC. SEC. 1581. Bribery— State official— Aid- 5. Intent and motive— Con- er and abettor— Com- sideration of other solic- plete charge (embracing itations. subjects shown in sec- 6. Declarations of parties tional heading). —Received with caution. 1582. Solicitation of bribe. 1583. Reputation of accusing wit- 1. Statute and essentials nesses. of crime. 1584. Bribery of city official — 2. Solicitation of — What Form of complete charge, constitutes. embracing subjects 3. Same— Intent. shown in sectional head- 4. Jury to determine mean- ing. ing of language used. Sec. 1581. Bribery— State official— Aider and Abettor— Com- plete charge embracing: 1. Preliminary admonitions hecause of importance of case. 2. Jury cautioned not to draw inferences from rejected testimony. 3. The charge in the indictment. 4. Plea and burden of proof. 5. Presumption of innocence. 6. A reasonable doubt. 7. Duty of jurors to confer with each other. 8. Credibility of witnesses — A full statement as to. 9. Same — Dictagraph. 10. Criminal charges against witnesses. 11. Reputation of defendant for honesty and integrity. 12. Law as to bribery. 13. Same — To solicit a bribe. 14. Same — To influence official duty. 1262 BRIBERY. 1263 15. Same — The bribe need n-ot be the only consideration, to influence. 16. The inteyxt. 16a. Jury the sole judges of m-eamng of language used. 16b. Law as to aider and abettor. 17. Conspiracy betiveen defendants and others to obtain money. 18. Entrapment into crime — Status of those participating therein. 19. Defendant may be guilty though entrapped. 19-a. Detectives not aiders and abettors. 20. Immunity of deiectives entrapping. 21. Final instruction to jury as to their duty and verdict. 1. Preliminary admonitions because of importance of case. The judge and the jury in this case constitute the court established by the constitution and laws of this state for the administration of justice as between the commonwealth r.nd the defendant. The majesty of the law is in our hands for the time being and it is the duty to do equal justice as between the state and the defendant. There is no higher function falling to the lot of men than the administration of justice. In the performance of these duties the court and jury must be moved by the highest and most solemn sense of duty. If we are not actuated by a desire to perform our whole duty courageously and impartially, we Avill not be entitled to the respect and confidence of the people of the state. Society demands no higher duty than purity, impartiality, courage and intelligence in the performance of any public duty. And among all the public duties which men are called upon to perform under the laws of society, one of the most important rests upon the jury, selected from the common peo])Te, which is the final arbiter of the facts concerning the alleged violation of law or of public duty involved in tliis case. In all your deliberations you should exercise the judgment of candid, intelli- gent men, men who are anxious only to get at the truth. The qu(^tion involved in this case is of vital importance to the state and to the defendant. The citizenship of the state and the .1264 INSTRUCTIONS TO JURY. defendant will be satisfied with a fair, intelligent, impartial con- sideration and determination by you, gentlemen of the jury, in this case. It is essential to the welfare of society and good government that every guilty man shall be punished when his guilt is established by the measure of proof required to convict of crime in a court of justice. It is equally essential to the welfare of society and of good government that there shall be no con- viction of a person if there is a reasonable doubt of his guilt. The importance of your duties admonish you that your verdict shall be reached with great care, uninfluenced by anything except the evidence admitted in this case and the law applicable thereto, and that it shall be the result of purity of mind and of your soundest and best judgment upon the whole case. 2. Jury cautioned not to draw inferences from rejected testi- mony. Instructions are based on different phases of evidence. The court admonishes you that you shall not draw any deduc- tions, either favorable or unfavorable to either side of this case, by any offers of testimony which the court rejected or from any questions which may have been asked of witnesses which the court did not permit to be answered. The court wishes the jury to know and understand that these instructions which are given you are based upon the evidence in this case and upon the different phases thereof, so as to enable you to decide the questions of fact submitted to you by the application of the law thus given you. The jury being unac- quainted with the law, the court requests that, as this charge is in writing and will be placed in your hands, you may read it yourselves in your jury room, so that you may make no mistake in the application of the law. 3. The charge in the indictment. (Omitted. It can be sup- plied in each case.) 4. Plea and burden of proof. To this indictment tlie defend- ant has entered a plea of not guilty which puts in issue and denies each and every averment thereof. This plea of defendant places upon the state the burden of proof. It is incumbent upon the state before it can ask a con- BRIBERY. 1265 viction by 3'our verdict to establisli to your satisfaction beyond a reasonable doubt the truth of each of the averments essential to constitute the crime charged. 5. Presumption of innocence. The indictment creates no pre- sumption of guilt against the defendant. On the contrary, the law presumes every one charged with crime to be innocent until his guilt is established beyond a reasonable doul)t. The defend- ant is entitled to this presumption in the consideration of this case and until the jury believe beyond a reasonable doubt that the evidence establishes his guilt. The degree of proof to be applied in criminal cases and in this case is proof of guilt beyond a reasonable doubt. 6. Reasonable doubt — Rather full explanation. A reasonable doubt is an honest uncertainty existing in the minds of a candid, impartial, diligent jury, after a full and careful consideration of all the testimony with an honest purpose to ascertain the truth, irrespective of the consequences which may follow the verdict of the jury. It is not a mere captious or speculative doubt, one voluntarily excited in the mind in order to avoid the rendition of a disagreeable verdict ; it is not a doubt created by any personal feeling of sympathy, or of opinion or policy not based upon the testimony ; it is not a doubt prompted by the prejudice of the jury which may arise in the minds of the jury from anything occurring in the evidence and contrary to any rule of law which the court has given to you. You are bound to follow the instructions of the court as to all matters and you should not permit youi-selves to create in your mind any doubt tliat may arise from any feeling which you may have ^vith respect to any feature of this case which is not founded upon the evidence and the law as given you by the court. Such a doubt would be considered in law as merely a captious and as an unreasonable one. To acquit upon trivial suppositions and remote conjectures is a violation of your oath and an off'ens(> of great magnitude against the interests of society, directly tending to the disregard of the obligation of the judicial oath and counte- nancing a disparagement of justice and tlie encouragement of 1266 INSTRUCTIONS TO JURY. malefactors. On the other hand, the jury ought not to condemn unless the evidence removes from your minds all reasonable doubt as to the gnilt of the accused and you would venture to act upon it in a matter of the highest concern or importance in your own interest. You will be justified and are required to consider a reasonable doubt as existing if the material facts, without which guilt can not be established, may fairly be reconciled with innocence. In human affairs absolute certainty is not always obtainable; from the nature of things, reasonable certainty is all that can be attained on many subjects. When a full and candid considera- tion of the evidence produces a conviction of guilt and satisfies the mind to a rea.sonable certainty, a mere captious, or ingenious, or artificial doubt is of no avail. If a consideration of all the evidence satisfies you of the defendant's guilt, you will return a verdict of guilty; if you are not so satisfied, but a reasonable doubt or uncertainty as to the guilt of the defendant exists in your minds, it is your duty to acquit the defendant. Whether or not the proof of the guilt is established beyond a reasonable doubt need not necessarily be shown by the greater number of witnesses, but may be determined by the jury by the greater weight of the evidence which convinces the jury of guilt beyond a reasonable doubt, the degree of evidence required in criminal cases. If your judgment so demands, you many conclude that the guilt of the defendant is established beyond a reasonable doubt, notwithstanding a less number of witnesses may have given their testimony on one side or the other. A reasonable doubt should not be made to rest upon a limited number of witnesses so long as the jury believe from the evidence that the guilt of the defendant is made to appear bej^ond a reasonable doubt. 7. Duty of jurors to confer with each other. It is the duty of the jurors to confer with each other to give careful consideration to the views which may be expressed by any of you while you are considering your verdict. A juror should not turn a deaf ear to the views of his fellow juror or juroi*s and without listen- BRIBERY. 1267 ing to arguments or reasons advanced by a fellow juror abso- lutely stand by his own opinion in the matter, regardless of what may be said by other jurors. It must be the object of all of you to arrive at a common conclusion and to that end you should deliberate together with calmness and be considerate of each other's views.^ 8. Credibility of witnesses — A full statement as to. The jury in considering the credibility of witnesses should consider their interest in the liberty of the accused, their opportunity to see and know the facts, the consistency of their testimony with all the facts and circumstances appearing in the case. The credibility of the witnesses is within the sole discretion of the jury. In determining this question, you should use your common sense and best judgment. It is permissible and customary for the court to direct the attention of the jury to certain recognized tests which may or may not be applied in the discretion of the jury. You can not look into men's minds and discover whether they are telling the truth or falsehood, although you may look to and consider their appearan^'o and demeanor upon the witness stand. You may judge from out- ward appearances, by the reasonableness of the testimony under all the circumstances of the case, and by conflicting statements or partial admissions or denials, if these suggest to your minds the truth or falsity of any testimony that may be given. When two or more witnesses testify to radically different statements or to statements which partially harmonize and partially disagree, the sanctity of the oath may be una,vailing and the jury are then called upon to determine which one was most likely to falsify. Wlien there is conflict between the testi- mony of witnesses, the jury may or may not give the preference to the testimony of a witness or fatnesses who have the least inducement from interest in the result of the verdict or from other motives to testify falsely. And when there is conflict between the testimony of witnesses, you may consider whether one or the otlicr is corroborated by another witness who is wholly 1 Davis V. State, 63 O. S. 173, 174. 1268 INSTRUCTIONS TO JURY. interest of a witness to avoid a conviction of the defendant on trial, if any such desire or interest you may believe any witness to have had. Or, you ma}^ consider whether a witness has or has not a desire to secure a conviction for any reason other than an honest desire to bring a person charged with crime to justice. "When there is sharp conflict you may consider whether a witness is or is not consistent in all his statements; whether or not any- thing connected with his statements supports or fails to support his testimony. You may consider the relation which each witness bears to the case, his means of information, fallibility or infal- libility of memory; possibility of mistake in repetitions of con- versation; or the likelihood or want of likelihood of adding to or subtracting from a conversation; unity of interest; motives, if any, that might lead a witness to swear falsely or otherwise; whether the motives for relating the facts testified to are wholly to bring a guilty person to justice or to enable a guilty man to escape ; or whether his sole motive was to tell the truth without regard to consequences; whether or not any witness was in a situation that might tend to make him warp his evidence, or whether he was so situated that he had no reason to testify falsely. You may consider the probability or the improbability of the truth of the statements made by a witness. You need not believe the statements of a witness merely because he made them ; you may believe a part or disbelieve a part. The fact that a witness is jointly indicted for the same offense with the defend- ant, and for which the defendant is on trial, may be considered by you in fixing the credit you wall give to the testimony of such witness. 9. Sam£ — The dictagraph. In connection with the subject of credibility of Avitnesses, the court may appropriately speak of the dictagraph which has made its first appearance in a court of justice. You have heard the testimony of its inventor and of the other witnesses concerning its use and operation in the communication of the human voice from one room to another. Counsel in the case entered into an agreement to let Exhibit L, which is the stenographic transcript of the conversations which BRIBERY. 1269 the witness TValciitt heard, go in as the testimony of the stenographer, which was read by the witness to the jury. The court permitted this testimony to be admitted in evidence to be considered by the jury in connection witli all the other evi- dence in determining the credibility of Avitnesses and the guilt or innocence of the defendant. 10. Criminal charges against ivitnesses. Some testimony has been admitted concerning criminal charges made against a. wit- ness who has testified in this case. The law permits evidence to be introduced of a conviction of a witness of a felony, tliat is, an offense punishable by imprisonment in the penitentiary, to be considered by the jury on the question of credibility for what- ever it is worth in the estimation of the jury. The jury \vill consider all of the evidence on this matter, the oral testimony of witness as well as the record offered in evidence. 11. Reputatian of defendant for honesty and integrity. Testi- mony has been introduced touching the reputation of the defend- ant for honesty and integrity and also as to his character. A person's reputation for honesty and integrity is established by what his neighbors and the persons with whom he generally associates in a community generally say of him in this regard or it may be established by the fact that nothing has been said derogatory thereto. If people generally say he is dishonest, that would make his reputation for honesty and integrity bad. On the other hand, if a man's associates in a community say nothing whatever about him as to his honesty and integrity, that fact of itself would be evidence that his reputation for honesty and integrity is good. The reputation of a person for honesty and integrity must appear to be general in a community where he lives or in a eomiiumity whore he may temporarily reside for a sufficient length of time to acquire a general reputation. The general reputation must appear from what people in general say of him in the community. The character of a man is what he actually is and not what people may say of him. Testimony has been offered here touch- ing the character of the defendant for honesty and integrity. 1270 INSTRUCTIONS TO JURY. This court has permitted this testimony to be offered for the consideration of the jury in connection with all the other evi- dence in the case for whatever bearing it may have in the minds of the jury touching the charges made by the indictment herein against the defendant. 12. Law as to bribery. As the indictment charges that the defendant, D., aided and abetted one A. in the crime of soliciting and accepting a bribe to influence him in his official action as a member of the Senate of the Ohio General Assembly, it will be necessary for the court to instruct the jury as to the law concerning the charge made against A. The statute of Ohio under which this indictment is preferred, section 12,823, reads as lollows : "Whoever being a member of the General Assembly or a state or other officer, * * * agent or employe of the state, either before or after his election, qualification, appointment or employment, solicits or accepts any valuable or beneficial thing to influence him with respect to his official duty, or to influence his action, A^ote, opinion or judgment in a matter pending, or that might legally come before him," is guilty of the crime known as bribery. The jury will bear in mind that the crime charged against A. is that of both the solicitation and acceptance of money to influence him in his official capacity. The jury will understand that it is a crime to solicit any valuable thing to influence his official action and that it is also a distinct and separate crime to accept any valuable thing to influence his official action ; and that the said A. is charged with both these crimes and that the defendant D. is charged with aiding and abetting the said A. in the commission of both these crimes. Before you can find the defendant guilty of the crime charged, you must first be satisfied beyond a reasonable doubt of the existence of the following essential facts: (Omitted.) 13. Same — To solicit a hrihe. To solicit any valuable thing by a member of the General Assembly to influence him in respect to this official duty, imports an initial, active and wrongful effort BRIBERY, 1271 by such person. A charge of solicitation of any valuable thing to influence a defendant in respect to his official duty as a member of the General Assembly or to influence his action, vote, opinion or judgment, as contemplated by the statute, involves the idea of a mental attitude on the part of a defendant that he might be influenced in his official capacity. To warrant the finding by the jury that A. solicited a bribe from H., you must find that in a conversation between II. and A., the latter used language which the jury believes was intended to be a solicitation by said A. of money to influence his official action, vote or judgment ; or you must find that the defendant was authorized to solicit money for or on behalf of A. and that D. did so solicit money from II. for A. and to influence his official action and duty ; or you must find that D. solicited money for A. to influence his official duty and action which was ratified and approved by said A. with an intent and purpose to influence his official action. If you find that the said A. accepted money from H. or S. with intent and purpose of influencing his official action, vote, opinion, or judgment on the bill mentioned in the indictment, that said bill was pending and might come before him, then you would be warranted in concluding that said A. was guilty of accepting a bribe as charged in the indictment. In determining whether A. solicited a bribe, or whether D. aided and abetted in the solicitation thereof, the jury will look to the conversations, if any, had between these parties, and determine therefrom whether said A. intended to solicit money from ri. to influence him, A., in his official capacity as a member of the General Assembly by the receipt of some valuable thing from or through H. It must be found by you that the language used hy A. or by D. acting for and on behalf of A. in the matter, disclosed a purpose and intent to secure some valuable thing that he, A., might be influenced therel)y in his official action. 14. Same — To influence official duty. It need not ])e shown that A. would be influenced in a particular way; the essential ]272 INSTRUCTIONS TO JURY. thing is, that you find that A. made such statements to H. or S. as showed that he solicited, or requested, the payment of money, or accepted money, to influence him in his official duty in some way concerning the bill described in the indictment. But the court states to the jury that the forming and expressing of an opinion or judgment in favor of the bill in question, or the voting for the bill, were not all the acts that the defendant as a member of the Senate of the Ohio General Assembly could officially do in relation to the same. As a member of the legisla- ture, it v>'as competent for the said A. to ask or induce other members to vote for the bill, to ask other members of the com- mittee in whose hands it was to vote to put it on its passage and to collect facts and reasons for the passage of the bill. That would be official action, official duty. As a member of the legislature the said A. had no right or authority under the bribery law, or any other law appertaining to his official position, to solicit or ask from any one, or to invite any one, to give or pay him any money, either by himself or by and through any person acting for and on his behalf in that matter. Whatever he did or was intending to do on those lines and in respect to the bill mentioned in the indictment, he was liound to do as the representative of the public, and he had no right to be influenced by any valuable or beneflcial thing, except his salary, which was provided by law. 15. Same — The hrihe need not he the only consideration to infuencc. It is not incumbent upon the state in making out its case that it shall show that the said A. solicited or accepted the money, if any was so solicited or accepted by him, that it was to be the only consideration that was to influence him in respect to his official duty or his action, vote, opinion or judgment relative to the lull. He may have been influenced by his ovm. convictions concerning the bill to support it. The law does not require the state to prove that the solicitation, request or invita- tion for the money or the acceptance thereof was to be the sole inducement to any action that the said A. might take on any vote that he might cast or any opinion or judgment that he might BRIBERY. 1273 form or express. It is essential, however, that it sliall be made to appear by the evidence that at the time of the alleged solicitation or acceptance of tlie money by said A., or it must be made to appear in some other way, that thi* said A. solicited and accepted the money with the intent and purpose of influenc- ing his oflScial action as a member of the legislature, either in his vote, opinion or judgment, or with the intent and purpose of enabling said A. to exert official action in respect to the 1)ill described in the indictment. 16. The inteni. In determining the intent of the said A., the jury may consider the evidence as to the alleged conversations had between the said A. and H., or between the said H. and the defendant D. in respect to this transaction when the alleged solicitation or acceptance of the money is said to have taken place, provided, however, that you find under the instructions which the court gives yon at another place, beyond a reasonable doubt tliat the defendant was an aider and abettor in the crime charged against the said A 16a. Jury the sole judges of meaning of language used. The jury are instructed that you are the final arbiters as to the meaning of the language claimed to have been used in the alleged conversations had by and between the said H., A. and the defendant. You will decide whether the language claimed to have been used between the parties in these alleged conversa- tions bears a construction that it was intended by the said A. or the said D. as a solicitation of a bri])e to influence the said A. in his official action, or whether the language used by the said A. and the said D. was in respect to the receipt of the money as claimed by the state, intended by the said A. and the said D. to be a solicitation of or an acceptance of a bribe to influence the said A. in his official action as a member of the legislature, or of any committee thereof, or to influence his action, vote, opinion, or judgment as such member, or to influence his action as sucli member in securing favorable action on the part of other mem- bers of the legislature or members of a committee thereof. Wluit is meant by the language is a question for your solution. Apply 1274 INSTRUCTIONS TO JURY. your intelligence and common sense in deciding it in the light of all the facts and circumstances disclosed by the evidence and the law given you by the court in these instructions. If the jury are satisfied beyond a reasonable doubt that A. either solicited or accepted money with intent and purpose to influence his official action, you will then proceed to determine whether defendant was an aider and abettor in either or both of said crimes. 16b. Laiv as to aider and abettor. The court will now instruct the jury concerning the law as to an aider and abettor to crime. The statute, section 12380, provides : "Whoever aids, abets, or procures another to commit an offense may be prasecuted and punished as if he were the principal offender." That is, if A. either solicited or accepted a bribe, or both, and D. aided and abetted him in the acts, either or both of them, or procured A. to commit the same, he is guilty in the same manner as A. is, if you find that the latter is guilty as charged. A person may in law be guilty of aiding and abetting another in the commission of a crime or crimes charged by an indictment, either by a plan or conspiracy previously formed for that pur- pose, or by joint participation by overt acts done or committed by the parties. 17. Conspiracy between defendants and others to obtain money. If the jury believe from the evidence that A., C, H. and others as members of the committee of the Senate on insurance, or as members of the legislature had formulated a plan or conspiracy to obtain money from persons interested in bills introduced in the Senate and referred to said committee to influence them as such members of such committees, or as members of the legislature and that said persons had associated with them defendant to act with them, and on their behalf, in furtherance of such plan or conspiracy, then the court charges the jury that the acts or declarations of each and all of such persons done and made in pursuance of such conspiracy, if you find there was one, are to be considered as the acts of each and all of said persons in pursuance of such conspiracy. BRIBERY. 1275 If the jury are satisfied tliat sneh a conspiracy was formed by said persons, and that the acts and declarations of each or all of said persons as shown by the evidence in this case, were done, and made, in furtherance of such conspiracy, then such acts and declarations done and made by such persons may bo considered by you in determining the guilt or innocence of A. and D. of the crime or crimes charged against them in the indictment in this case, because what one of them may have said in pursuance of such a conspiracy is binding on each and all of the others. And if the jury find from the evidence that D. aided and abetted A. in the commission of the crime or crimes charged against him in the indictment against him, in furtherance of such conspiracy, then your verdict should be one of guilty against the defendant. If, on the other hand, the jury should find that the parties named had not formed a plan or entered into a conspiracy such as the court has just mentioned and explained, your attention will next be directed to another claim made by the state in this case. 18. Entrapvient into cnme — Status of those participatmg therein. In determining the guilt or innocence of A. of the crime of solicitation or acceptance of money to influence his official action, vote, opinion or judgment, and of defendant, D., as an aider and abettor of either or both of said crimes, the court will now charge you as to the law applicable to the part taken in the transaction involved in the case by the witnesses who have testified on behalf of the state, who have acted in the capacity of detectives in the investigation of alleged bribery on the part of members of the Ohio Legislature. Any person or persons who have reasonable grounds of belief or suspicion that members of the legislature have been engaged, or are engaged in the criminal practice of soliciting and accept- ing bribes to influence official action, have the right to adopt means and methods to detect persons suspected of being engaged in such criminal T)ractiees, and in pursuance of that purpose they may secure the services of persons as detectives in order to detect persons believed to be guilty of such practices. 1276 INSTRUCTIONS TO JURY. The law is, gentlemen, that the duty of a legislator can not be considered obligatory primarily for individual or personal benefit, but is solely and entirely for the benefit of the State and the whole people of the State. In considering the question of public policy, there is, gentle- men, in law a clear distinction between measures used to entrap a person into a crime in order to aid in the detection of some corrupt private purpose, and artifice used to detect persons suspected of being engaged in the solicitation and acceptance of bribes by public officers which vitally affect the public welfare. It is the law that no person, or class of persons, nor can any public official be held criminally responsible for any act which they may do by way of entrapment of persons who are public officials believed and suspected of being engaged in the criminal practice of soliciting and acceptance of money to influence official action. A prosecuting attorney whose attention has been called to such alleged criminal practices is not acting outside the pale of the law in rendering assistance in the discovery of such alleged criminal practices. So the court charges the jury that if it appears from the evidence in this case that there was a belief and suspicion on the part of persons engaged in the investigation of the members of the legislature concerning the alleged criminal practices above mentioned, and that the defendant, who wais sergeant-at-arms of the Senate, upon whom certain duties were imposed by law, entered into a plan or conspiracy with the detectives, who have testified in this case, to have members of the Legislature of Ohio solicit and accept bribes to influence their official action as such members, and you find from the evidence that the defendant, D., was lured into acts by detectives who proposed to him a scheme with reference to the senate bill, to have such members solicit or accept money to influence their official action, which they, the detectives, had no intention to carry out, that fact can not be urged as a defense by the defendant in this case. 19. Defendant may he guilty, thmigh entrapped. If the de- fendant had no knowledge of the deception by the detectives, BRIBERY. 1277 but entered into the scheme proposed by them, believing it to be a genuine plan or scheme, and if the defendant did any act or acts in furtherance of such plan or conspiracy, and aided and abetted A. in the solicitation and acceptance of money from H., to influence his, A. 's, official action, and that said A. did solicit or accept said money to influence his official action, then the fact, if it is a fact, that both D. and A. were lured into the act will not excuse them from responsibility or liability under the law for their act of soliciting or acceptance of bribes, or of aiding and abetting the same. 19a. Detectives not aiders and abettors. If the jury believe that the persons making the investigation had reason to believe or suspicion that the defendant and the members of the legisla- ture were engaged in the criminal practices mentioned, and that H., S., B. and B. entered into a combination with the defendant, D., who was an officer of the legislature, to entrap members of the legislature, to aid the investigation and to detect persons suspected of being engaged in criminal conduct or practice, and they continued to act in such capacity in good faith until the persons suspected had been arrested, the detectives are not aiders or abettors, and the testimony of the detectives is not to be considered as the testimony of co-conspirators, as to which there are special rules which govern the jury in the consideration of the testimony. If you find that the detectives and the defendant did enter into the plan just mentioned, and that defendant, D., believing the transaction to be real and genuine, did any act, delivered any message or had any communication with A. which in any wise contributed or aided or abetted said A. to solicit or accept money, and tliat A. did solicit or did accept money, and that the defendant did aid and abet the solicitation or acceptance of money to influence his official action, then the jury would be justified in finding that the defendant, D., was actuated by a criminal intent to aid said A. in the solicitation or acceptance of money and to influence his official action as a member of the general assembly. 1278 INSTRUCTIONS TO JURY. 20. Immunity of detectives — Entrapping. Under the law as it is given to you by the court the jury is instructed that there is no question involved in this case concerning the immunity of any witness who has testified in this case provided the jury find, as the court has instructed you, that those who were making investigations in legislative criminal practices therein believed or suspicioned that there was being practiced certain criminal practices by the members. If the persons making such investigations, acting upon such belief and suspicion, hon- estly pursued the course shown by the evidence for the purpose of detecting those guilty of such criminal practices, and if they did cause them to commit the crime of soliciting and accepting bribes, they are not in such case guilty of the commission of any crime, and they need no immunity. 21. Final instruction to jury as to their duty and verdict. Now, gentlemen, the court has given you the rules of law appli- cable to the e^ddence in this case. You have taken an oath to follow these instructions, and in order to know what the law isi and to intelligently apply the law to facts which you find you should, if you desire, read these instructions in your jury room. It is your duty to uphold the majesty of the law by applying it to the evidence in this case, without fear or favor. Banish all sentiment, feeling, sympathy or prejudice, or all suggestions made in argument to arouse your sympathies or prejudices, from your minds, and be true to your oath and do not disregard the law as given you by the court. The jury have nothing to do with mercy; the courts, pardon boards and the governor are the only persons who are authorized by law to temper justice with mercy, and the legislature has made what it deems proper provision in this matter. The jury deals only with the facts in the light of the law given you by the court; that and nothing more; that and noth- ing less. Now, gentlemen, if your honest and deliberate judgment leads you to believe that the defendant is guilty of aiding and abetting A. of either in soliciting or accepting a bribe, let your verdict of guilty be rendered accordingly. BRIBERY. 1279 If you have a reasonable doubt of the guilt of the defendant, let j'our verdict of not guilty be rendered, accordingly.^ 1 State r. Diegle. Franklin County Common Pleas, Kinkead, J. As to entrapment, see State r. Diegle, 11 N. P. (N.S.) 593, 21 L. D. 557; charge affirmed, State v. Diegle, 14 C. C. (N.S.) 289, 33 C. D. 82, 86 O. S. 310. Sec. 1582. Solicitation of a bribe. 1. Statute and essentials of crime. 2. Solicitatimi — What constitutes. 3. Same — Intent. 4. Jury to determine meaning of language used. 5. Intent and motive — Consideration of other alleged solici- tations. 6. Declarations of parties — Received with caution. 1. Statute and essentials of crime. The court will now in- struct the jury concerning the crime of solicitation of a bribe, and instruct j^ou concerning your duties in the matter. That part of the General Code, sec. 12,823, of this state, making the act charged in the indictment a crime, reads as follows : "Whoever, being a member of the General Assembly, either before or after his election, qualification, appointment or em- ployment, solicits * * * any valuable or beneficial thing to influence him with respect to his official duty, or to influence his action, vote, opinion or judgment, in a matter pending, or that might legally come before him," is guilty of the crime of solicitation of a bribe. Before the jury can find the defendant guilty it must be sat- isfied beyond a reasonable doubt of the following essential facts : 1. That defendant solicited a valuable thing of E. 2. That such solicitation was made somewhere in Franklin County, Ohio. 3. That such solicitation wa.s corruptly made. 4. That it waa made by defendant to influence liim with respect to his official duty. 5. Or to influence his action, vote, opinion or judgment. 6. Or to influence some of his associate members of the General 1280 '^ INSTRUCTIONS TO JURY. Assembly in the performance of his official duty. 7. In a mat- ter pending before him. 8. Or that might legally come before him. To make out the charge in the indictment, the State is not obliged to prove that any money was paid, accepted or received by the defendant. 2. Solicitation — ^Y]lat constitutes. To solicit any valuable thing by a member of the General Assembly to influence him with respect to his official duty, imports an initial, active and wrongful effort by such person. The charge of solicitation of any valuable thing to influence the defendant in respect to his official duty as a member of the general assembly, or to influence his action, vote, opinion or judgment, as contemplated by the statute involves the idea of a mental attitude on the part of the defendant that he might be influenced in his official capacity by the acceptance of some valuable thing ; or that he may, could or would be so influenced. Before the jury can find a verdict of guilty in this case, it must find from the evidence that the defendant used language in the conversation alleged to have been had with E. from which you may find, considering all the evidence in the case, by which the defendant intended to solicit money to influence him in his official capacity as a member of the General Assembly by the receipt of some valuable thing from or through E. It must be found by you that the language alleged to have been used by the defendant disclosed a purpose and intent to secure some valuable thing that he might be influenced thereby. It need not be sho^vn that the defendant would be influenced in a particular way ; the essential is, that whatever you find the defendant to have stated to E., it should show that he solicited or requested the payment of money to influence him in his official duty in some way concerning the bill described in the indictment. To make out the charge in the indictment it is not essential that the State show that defendant w^anted the money for his own use, or that he intended to use it for his ovra purposes, but the jury is instructed that the forming and expressing of an opinion BRIBERY. 1281 or judgment in favor of the bill in question, or the voting for the bill, were not all the acts that the defendant, as a member of the house of representatives, could officially do, in relation to it. As a member of the legislature it was competent for the defendant to ask, to induce other members to vote for tlio bill, or to ask otlier members of the committee in whose hands it was to vote to put it on its passage, and to collect facts and reasons for the passage of the bill. This would constitute official action and be within official duty. As a member of the legis- lature the defendant had no right or authority, under the bribery law, or any otlier law appertaining to his official posi- tion, to solicit or ask from anyone, or to invite anyone to give or pay him any money, either for himself, or for any other member of the legislature, in consideration for the exertion by him of any of the official actions mentioned in the statute quoted to you. The influence of the defendant as a member of the general assembly over the official actions of his colleagues is itself a part of his own official action and duty. (73 j\Iinn. 150.) Whatever he did, or was intending to do, on these lines and in respect to the bill mentioned in the indictment, he was bound to do as the representative of the public, and he had no right to be influenced by any valuable or beneficial thing, except his salary, which was provided for by law. That was his position. That was his obligation. It is not incumbent upon the state, in making out its case, that it shall show that the solicitation of money, if any was made, was to be the only consideration that was to influence the defendant in respect to his official duty, or his action, vote, opinion or judgment, relative to the bill. He may have been influenced by his owti convictions concerning the bill to support it. The law does not require the state to prove that the solici- tation, request or invitation for the money was to ])e the sole inducement to any action that defendant might take, or any vote that he might cast, or any opinion or judgment that he might form or express. 1282 INSTRUCTIONS TO JURY. 3. Same — Intent. It is essential that it shall be made to ap- pear by the evidence that at the time of the alleged solicitation of money, or in some other way, that the defendant made the solicitation with the intent and purpose of influencing his official action as a member of the legislature, either in his vote, opinion or judgment, or with the intent and purpose of enabling the defendant to exert official action in influencing other members of the legislature in their official actions in respect to the judicial bill. 4. Jury to determine meaning of language used. The court instructs the jury that it is the final arbiter of the meaning of the language claimed to have been used by the defendant at the time of the alleged solicitation of a bribe ; it will determine whether the language bears a construction that it was intended by the defendant as a solicitation of a bribe to influence him in his official action, as a member of the legislature, or of any committee thereof, or to influence his action, vote, opinion or judgment as such member, or to influence his action as such member in securing favorable action on the part of other mem- bers of the legislature or members of a committee thereof. Wliat is meant by the language is a question for your solution. Apply your intelligence and common sense in deciding it in the light of all of the facts and circumstances by the evidence and the law given you by the court in these instructions. 5. Intent and motive — Consideration of other alleged solici- tations. In determining the intent of the defendant, the jury may consider the evidence as to the conversations between de- fendant and E. when the solicitation is alleged to have been made, you may consider the testimony as to other alleged solici- tation of bribes by the defendant, if any you find from the evidence to have been made. The court instructs and cautions the jury that it may only consider the evidence touching the alleged solicitation of money at other times than charged in the indictment, for the sole purpose of enabling you to deter- mine the intent of the defendant at the time at which it is claimed he solicited a bribe of E. BRIBERY. 1283 6. Declaratio)is of pariii\-<, received with caution. The jury- is instructed that deelaratious and statements of persons should always be received by the triers of a case with care and caution, for the reason that the party making them may not have clearly expressed his meaning, or the witnesses who testify as to them may have misunderstood him, and it may be that the witnesses, by unintentionally altering a few of the expressions really used, give effect to the statement completely at variance with Avhat the party did actually say. But if the jury is satisfied that the declarations and statements have been made and correctly given in evidence, they may in the opinion of the jury afford strong and convincing e\adence and proof, for the reason that parties are not supposed to make declarations against themselves and their interest. It is the province of the jury to weigh such evidence and to give it such consideration to which it is entitled in the opinion of the jury in view of all the evidence in the case. 7. Admonitions to jury. Gentlemen of the jury, it is the solemn duty of the court, before this case is finally submitted to you, to urge that you shall disregard all appeals made to you by counsel as to matters which are outside the record in this case. The court instructs the jury that you must pay no atten- tion to these appeals. It would be strange if, in a case like this, the anxiety and zeal of the attorneys should not present to your minds topics which are outside the evidence and which have no pertinence to the issue on trial and no appropriateness in the consideration of upright, law-respecting and oath-respecting jurors. Such incidents are so usual in criminal trials that it almost becomes embarrassing for the court to undertake to correct them, and yet they are gravely injurious to the cause of law and justice, and jurors should leave no stain on their oath by being in the slightest degree influenced by them. T allude to the appeals to the sympathy and commiseration of the jury, reference to the penalty of the law with whicli the jury have no concern, and would violate your duty if you even considered them. The attorneys engaged in tin- trial of lliis cmsc arc officers of this court, and it is their duty to assist the court and jury in 1284 INSTRUCTIONS TO JURY. the administration of justice. They may call your attention to the evidence, they may present it in such way as to best suit their respective sides, and it is your privilege and duty to listen to and consider their reasons and argument for whatever assist- ance it may be to you in the consideration of the evidence in this case. But, gentlemen, you must consider only the evidence which the court has admitted, and the law as given you in these instructions, and allow no reference to outside matters to influence your verdict in the slightest degree. Pay no attention to what the public press may have said about this case, if anything, nor to any public interest that there may be in this case. Wlien you have acted conscientiously, honestly and solely upon the evidence and the law, you need have no concern as to what anyone may say or think about your verdict, whether it be one of guilty or of not guilty. In a case like this you have a stem duty to perform, and in its performance you have no right to be influenced by appeals to the tender emotions of your human nature, or by sympathy for anybody, or by ref- erence to any outside matters. Certainty, regularity and firmness in the administration of the law by courts and jurors are of the highest importance. I say this, not to impress you with anything save this, and that is the solemn and exalted public duty for which you have been selected and designated by the machinery of the law. The duty is as much due to the defendant as to the public. You must answer the question whether the defendant is innocent or guilty upon the evidence as it was given here from the Avitness chair, and according to the law as it is given you in this charge. You simply pronounce upon the question whether defendant is innocent or guilty. If he is guilty, say so ; he is responsible for it, and not you. If he is innocent, then your verdict should be a shield to him at this time.^ 1 State V. Nye, Franklin Co. Com. Pleas, Kinkead, .T. Sec. 1583. Reputation of accusing witnesses. Testimony has been introduced touching the reputation of E. A. C. and S. H. for truth and veracity. BRIBERY. 1285 A person's reputation for truth is established by what his neighbors and the persons with whom he generally associates in a community generally say of him in this regard. If they generally say he is untruthful, that makes his general reputation for truth bad. On the other hand, if a man's neighbors and associates in a coniiiumity say nothing whatever about him as to his truthfulness, that fact of itself is evidence that his general reputation for truth is good.^ The reputation of a person for truth must appear to be gen- eral in a community where he lives, or in a community Avhere he may temporarily reside for a sufficient length of time to acquire a general reputation. The general reputation must appear from what people in general say of him in the com- munity, and should not be limited to a particular class of persons, but depends upon what is generally said of him, or by the fact that people generally do not discredit him. Whether or not the general reputation of these witnesses has been successfully impeached is for the jury to determine. You will consider all the testimony offered on this point, that pro- duced by the defense to impeach and that produced by the state to support the mtnesses. The credibility of all these witnesses and the weight to be attached to their testimony is within the exclusive pro\dnce of the jury. You may consider the standing of the witnesses offered, their opportunity to know the people with whom the witnesses sought to be impeached generally mingle in the community where they live ; whether the testimony shows that the people with wliora the witnesses associated gen- erally discredit the witnesses for truth, oi- whether only a few of such persons discredit them; or whether it appears that the reputation of such witnesses for truth was not generally ques- tioned. The jury may also consider the relation wliich tlie impeaching witnesses sustain to the prosecution or the defense, or to the defendant, or to the witnesses sought to be impeached. The jury may consider also the interest which the impeaching witnesses may have in the defense of this case or other alleged 1286 INSTRUCTIONS TO JURY. acts of solicitation of bribes testified to in this case, if the jury believe any witness or witnesses have such interest. If the jury should be of the opinion that the general reputation of either or both of the witnesses mentioned for truth and veracity in the community where they live or temporarily reside, has been successfully impeached, then you may in your discretion disregard their testimony as being unworthy of belief, either a part of it or all of it, as your judgment demands. But, notwithstanding the fact that you may believe from the evidence that the general reputation of such witness or witnesses for truth has been successfully impeached, you may still believe their tes- timony, a part or all of it, if your judgment suggests that you should give credence to it. In determining the weight to be given to the testimony of the \^^tnesses sought to be impeached, you may consider whether it has or has not been corroborated by other witnesses or facts and circumstances appearing in the case. To warrant the jury in coming to the conclusion that the reputation of such witness or witnesses has been successfully impeached, you must find that the bad reputation is general in the community where he lives, or that it is generally bad in a community where he has temporarily resided for a sufficient length of time to have acquired a general reputation for truth ; that is, that it is generally so reported and considered to be bad in the community; and if it has not been thus impeached, the jury should not reject it, but should give it consideration and weight, applying to it the ordinary tests of credibility. A witness may be impeached by showing that he has made other and different statements out of court from those made before you on the trial, as to any material matter. And if the jury believe from the e\ddence that any witness has made state- ments at another time and place at variance with his evidence in this case, regarding any material matter testified to by him, then it is the province of the jury to determine to what extent this fact tends to impeach, either his memory or his credibility, or detracts from the weight to be given his testimony. It is BRIBERY. 1287 entirely a question for tlie jury as to what effect it will have upon you here. It is not whether the statement alleged to have been made outside is true, but whether the testimony given on trial is true. In determining the question you will take into consideration all of the facts and circumstances, applying the tests iu determining the credibility of witnesses. The contra- diction must be as to a material matter, and its materiality is to be measured by you by the charge of solicitation of a bribe, contained in the indictment. The question of fact which you are to determine in this case is whether the defendant corruptly solicited a bribe, with intent to influence his official duty.^ 1 Sackett's (Briekwood), Instructions, sec. 373, 28 Ind. 206, 68 Ind. 238, 132 Ind. 254. - State V. Xye, Franklin Co. Com. Pleas, Kinkead, J. Sec. 1584. Bribery of city oflficial — Form of complete charge in a criminal case — Embracing preliminary questions. 1. Plea of not guilty. 2. Presumption of innocence. 3. Reasonable doubt. 4. Consideration of unanswered questions. 5. Refusal to answer incriminatory questions. 6. Negative testimony. 7. Credibility of witnesses. 8. Pleas of guilty and flight. 9. Testimony of accomplices or aiders and abettors. 10. Evidence as to admissions. '• 11. Impeachment. 12. Testimony of an accomplice offered immunity. 13. Specific charges in indictment. 14. Law as to bribery. 15. Intent. 16. Corpus delicti — Must be proved. 17. Direct and circumstantial evidence. 18. Extrajudicial admission must be corroborated. 1288 INSTRUCTIONS TO JURY. 19. Claim, as to co-mpiracy. 20. The law as to conspiracy. The indictment in this ease charges the defendant with the crime of bribery. 1. Flea of not guilty. The defendant has entered a plea of not guilty to the charge made against him by the indictment. This plea forms the issues to be tried, and presents the issues of fact which are now to be submitted to you for determination. The burden of proving the defendant guilty of the charges made against him is upon the state, which must be established by the degree of proof or evidence, w^hich is required by law in crim- inal cases, and which the court will presently explain to you. 2. Presumption of innocence. The law arbitrarily creates a presumption in favor of every one charged with a crime, that he is presumed to be innocent until he is proven guiltj'- according to law. This simply means, gentlemen, that when you enter upon your deliberations in the consideration of the charges made against the defendant, and of the evidence offered by the state, and by the defendant, you shall proceed upon the theory, as well as upon the fact, that he is presumed to be innocent. The defendant is entitled to the benefit of this presumption from the time you begin to consider the evidence, and throughout the consideration of the case, and until, after weighing the testimony carefully according to the tests prescribed by law and explained to you by the court, you have reached the conclusion that this presumption has been overcome. That you may fully appre- ciate the full import of this rule, your attention will be further directed to its beneficent purposes. It is the purpose of the law that jurors, in approaching the consideration of charges made by an indictment, shall have their minds free and open, and that you shall not be prejudiced or influenced in the slightest degree by the fact that an indictment has been found against the defendant. The aim and purpose of this rule of law is, that jurors are to consider and be guided only by the evidence offered in the case. And the court places the injunction upon your consciences that neither your consciences nor your oaths shall BRIBERY. 1289 be tarnished by the slightest departure from your duty as the court has endeavored to explain it to you. If in your deliber- ations you should reach the conclusion that the evidence has overcome this legal presumption of innocence, then in further considering the testimony, with a view to determine whether the defendant is guilty or innocent of the charges made by tlie in- dictment, you must be guided and governed by another humane pro%ision of law which prescribes that in criminal procedure, the degree of evidence which will govern and control jurors is that they shall be satisfied of the guilt of the accused beyond a ''reasonable doubt," before you can find him guilty, and if not so satisfied, you should acquit him. It is not incumbent upon one charged with a crime, in order to prove his innocence, that he shall satisfy the jury of the existence of any material fact which, if true, would constitute a complete defense. It is sufficient if the evidence merely creates in the minds of the jurors a reason- able doubt of the existence or truth of material facts, in which case the defendant is entitled to be acquitted. 3. Reasonable donht. So many forms and definitions have been given of a "reasonable doubt" that it would almost cause us to believe that there was some mystery about the term, or difficulty about its meaning. What we want is a practical, plain and sensible explanation. A reasonable doubt is an honest, reasonable uncertainty, such as may fairly and naturally arise in your minds, after having fairly, carefully and conscientiously considered all the evidence introduced upon the trial of this cause, when viewed in the light of all the facts and circum- stances surrounding the same. It is a doubt founded upon a real, tangible, substantial basis. It is such a doubt as would cause a reasonable, prudent and considerate person to pause and hesi- tate to take action concerning matters affecting his own material interests, or in matters pertaining to the graver and more impor- tant affairs of life, or in transactions like the one involved in this case. A doubt is not reasonable if it rests upon or is founded upon a mere caprice, fancy or conjecture; it is unreasonable also if it arises in the mind of a juror by reason of his own per- 1290 INSTRUCTIONS TO JURY. sonal feelings, passion or sentiment. A juror who acts upon such a doubt, or who creates a doubt in his own mind to avoid a disagreeable duty, violates the oath which he takes. If, after a careful and impartial consideration of all of the evidence in the case, you can say and feel that you have an abiding con- viction of the guilt of the defendant, and you are fully satisfied beyond a reasonable doubt of the truth of the charge, then you are satisfied beyond a reasonable doubt. If, from all the evidence in the case, the jury have a reasonable doubt whether the de- fendant has been proven guilty, it is then your duty to find the defendant not guilty. 4. Duty of jurors to deliberate and confer with each other. The law, in constituting a jury of twelve men, thus contemplated that each and every one of you shall give your individual con- sideration of and judgment upon the evidence. The rules of law pertaining both to the essence of the crime, and the degree and rules of evidence, which are explained to you in these in- structions, are necessarily binding upon the indi\ddual conscience and judgment of the members of the jury. It is the duty of each juryman while you are deliberating upon your verdict to confer with your fellows and give careful consideration to the views which your fellow jurors may have to present upon the testi- mony in the case. A juror should not turn a deaf ear to the views of his fellows, and, without listening to their reasons and arguments, obstinately stand upon his own opinion in the matter, regardless of what may be said by the other jurymen. It must be the object of all of you to arrive at a common con- clusion, and to that end you should deliberate together ^\'ith calmness and be considerate of each other's views.* 5. Consideration of improper unanswered questions. Some questions have been asked of witnesses which were not permitted by the court to be answered. The fact that such questions have been asked, though not answered, should not be considered. You have no right to draw any inferences as to the purpose sought to be established by those propounding them, and you will not be justified in draw- ing any inferences therefrom. 1 Davis V. State, 63 O. S. 173, 174. BRIBERY. 1291 6. Befiisal to ansiver incnminatory questions. You are in- structed, gentlemen, that under the constitution and law of Ohio, a witness has the right to refuse to answer questions the answers to which might tend to criminate him. If any witness has so refused to answer questions propounded to him, j'ou have no right to draw any deductions therefrom, it being your duty to consider only the e^^dence given. 7. Negative testimony. It is the duty of the Court to instruct you concerning negative testimony as distinguished from af- firmative testimony. Negative testimony is testimony that things were not done, or that a statement was not made, while afiSrm- ative testimony is testimony that a thing was done, or that a statement was made. It is a rule of law of evidence that the affirmative is to be preferred to the negative. Where under all the circumstances it appears to have been the duty of one to speak, and he does not speak, then his silence or failure to speak may be considered together with all the other evidence in arriving at your verdict. But on the other hand if, from all of the facts and circumstances in the case, you should be of the opinion that a witness or party was under no obligation or duty to speak, and he did not speak, his failure to speak in such case, should not be taken into account by you in the consideration of the evidence. 8. Credibility of witnesses. The credibility of each and all the witnesses who have testified in this ease is left entirely to the jury. The weight and credit to be given to the testi- mony of witnesses is committed to your judgment. In deter- mining this question, you may consider their intelligence, their manner and conduct on the witness stand, whether any wit- ness showed zeal or feeling against or for either side; whether there was any reluctance on the part of any witness in tes- tifying; whether a witness has an interest in the conviction of the accused, or an interest in his own liberty, or in the liberty of any other person. You may consider the relation that each witness bears to the case; his means of infonnation; the interest, if any, he may have in the result; the motives, 1292 INSTRUCTIONS TO JURY. if any, that might lead liim to swear falsely, or otherwise; whether liis motives for relating the facts testified to are wholly to bring a guilty person to justice, or to vent his wrath upon an innocent person ; whether there was a corrupt motive on his part to testify for or against the defendant; or whether his sole motive was to tell the truth, without regard to con- sequences ; whether or not any witness was in a situation that might tend to make him warp his evidence ; or whether or not he was so situated that such witness or witnesses had no reason to testify falsely; whether or not they were induced to become a witness and testify in the case by any promise or hope of leniency or mitigation of punishment in case they testified ; or whether any witness was induced to testify through promise or hope of leniency to any one else in whom they are interested by relation or otherwise; or whether no such influ- ences were brought to bear upon any witness. If you find from, the evidence that any one of the witnesses is likely to be seriously affected by reason of the facts and circumstances wiiich you may find to be connected wdth and a part of the transaction involved in this ease, if you reach any such conclusion, you may consider that fact, if you find the fact to be, in determin- ing the weight or credit of any witness. You may consider the probability or improbability of the truth of the statements made by any witness. You are not obliged to believe the state- ments of any witness merely because he made them ; and you may, if your judgement dictates, believe part and disbelieve part of any witness's testimony. These and many other matters might be called to your attention whereby you are to test the evidence. Weighing the testimony by these and other tests you may have, you will determine the effect to be given it, and you will give the testimony such credit as it is entitled to ; and if you determine from all the evidence adduced at the trial, under the charge of the Court, that the evidence has established, beyond a reasonable doubt, the guilt of the accused, it is your duty to say so in your verdict. But if the evidence has not so convinced you, your duty requires you to find the defendant not guilty. BRIBERY. 1293 9. Pleas of guilty and flight. Questions liave been asked of witnesses concerning indictments preferred against them and of pleas of guilty thereto made by them, and of flight before such indictments were found. The Court permitted these ques- tions to be answered, and their answers submitted to you to be weighed and considered by you in. determining the credi- bility of such witnesses. The Court especially charges and cautions you that you are to consider evidence touching the flight of any witness Mily on the question of credibility, and not as having any bearing upon the commission of the crime charged against the defendant excepting as the testimony of such witness, according to the credit which you may attach to it, may tend to prove the innocence or guilt of the defendant. 10. Testimony of accomplices or aiders and abettors. Hoio to be considered. In view of the testimony of some of the witnesses who have appeared and given evidence before you, it is incumbent upon the Court to instruct you in reference to your duty in the consideration of their testimony. If you should find, as charged in this case, that there was a conspir- acy to defraud the City of Columbus, or to obtain the corrupt action of the members of the Board of Public Service by brib- ing them, and that the defendant and others participated in such conspiracy, and if any of the persons, whom you so find to be members of said conspiracy and who are, in your opinion, jointly responsible as aiders and abettors in the alleged crime of l)ribery, claimed to have been committed in pursuance of said conspiracy and as a part thereof, have testified in this trial, then you are instructed that you will be governed by the following injunctions and instructions, which the Court now gives you. One who participates in the commission of a crime, by aid- ing and abetting, though not directly participating in the crime, is, according to the law, an aider and abettor. Under ancient, or common law, such person was considered an "accomplice," which is synonymous with an aider and abettor, except that an accomplice meant a person who, not only aided and abetted 1294 INSTRUCTIONS TO JURY. in the commission of a crime before its commission, but who committed acts in connection with the crime, subsequent to its. commission. The term accomplice, as thus explained, is the term which I will use in these instructions. The fact that a witness was an accomplice, or an aider and abettor, if that is a fact, does not make him incompetent as a witness ; the tur- pitude of his conduct does not disqualify him as a witness. The admission of an accomplice as a witness is said to be jus- tified by the necessity of the case, but with the wisdom of the practice you are not concerned. The degree of credit which ought to be given to the testimony of a witness who has turned State's evidence is a matter exclusively within your province to decide. Wliile the matter of credit to be given the tastimony of an aider and abettor, or an accomplice, is within the sole province of the jury to determine, yet the law makes it the duty of the Court, within its discretion, to advise a jury not to con- vict one charged with a felony upon the testimony of an ac- complice alone, and without corroboration. If you should en- tertain a reasonable doubt as to whether the defendant was a party to such a common scheme, design or conspiracy, of which the Court has spoken, then there would be no occasion for a consideration of the rules relating to the testimony of an accomplice, aider or abettor. In obedience to this discretionary power thus vested in trial judges, I caution you to consider and scrutinize with care the testimony of any person, or persons, whom you are satisfied from all the evidence were participators and actors in the al- leged conspiracy to defraud the city, or to obtain the corrupt municipal action of the Columbus Board of Public Service, and whom you are also satisfied from the evidence, acting under these instructions, were aiders and abettors, or accom- plices, in the crime charged here, or in any crime charged to have been committed in pursuance of the alleged conspiracy, if you should find any such crime to have been committed, and that tlie defendant was a party thereto. I do not consider it within the province of the Court to name any witness or wit- BRIBERY. 1295 nesses, who come within the nile of evidence, instructions as to which the Court now gives you. It is within your province to obser\'e the injunction of the Court now given you in respect to the testimony of any witness or witnesses whom you find come within the rule now given you. If you should find from all the evidence that the defendant, and others who have appeared as witnesses in this case, were engaged in a common design and conspiracy to either defraud the city, or to corruptly obtain the official action of C, member of the Board of Public Service, and other members of the Board of Pub- lic Service of , and that the crime charged in this indict- ment, as Avell as other crimes of bribing other members of the said Board of Public Service, were committed by any of the per- sons whom you find, if you do so find, were engaged in the common design and conspiracy aforesaid, then you are in- structed to apply the rule which the Court now gives you in the consideration of the testimony of any such person or per- sons. Wliile I deem it to be my duty to caution you to scru- tinize with care the testimony of any such witness, or witnesses, as come within the foregoing rules, still it is my duty at the same time to instruct you that the law is, that you may find the defendant guilty upon the testimony of any person or per- sons whom you may find to be an aider and abettor, or aid- ers and abettors, which you may find to be corrobrated as to one or more material facts, notwithstanding his or her infamy and complicity in the crime or crimes alleged to have been committed in pursuance and as part of the conspiracy claimed to have been formed in the transaction under investigation in this case. And, acting within the power given me by the law of this state, I advise you not to convict the defendant upon the testimony of any witness or witnesses, whom you find to have been an accomplice, or an aider and abettor, unless you find that it is corroborated. You are instructed not to give credit to the testimony of such witness or witnesses unless it is corroborated by other evidence, either undisputed or well established facts or circumstances, or by the testimony of truth- 1296 INSTRUCTIONS TO JURY. ful witnesses. The corroborative evidence miist tend to con- firm the testimony of an accomplice upon a point material to the issue, in the sense that it tends to prove the guilt of the defendant. 11. Evidence as to admissions. You are instructed, that the evidence of certain witnesses as to oral admissions or state- ments of defendant, alleged to have been made to them, should be viewed with scrutiny, and that in considering such testi- mony you will take into consideration the surrounding circum- stances, and the situation and surroundings of the defendant, and the probability or improbability of his having made any such admissions or statements. It is simply the duty of the court to state that such evidence should be received by the jury with caution, but you must understand, that it is -wdthin the sole province of the jury to weigh such evidence and give it the consideration to which in your judgment it is entitled in view of all the other evidence in the case. It is to be viewed in the light of all the surrounding circumstances appearing in the evidence — the motives which may have induced it — its consistency with the other evidence ; and the jury, without capriciously or causelessly accepting or rejecting any portion, may give credit to all or part, as you may find reason for be- lieving, or you may reject all or part as you may find reason for disbelieving, in view of all the facts and circumstances proved in the case. 12. Impeachment. A person's reputation for truth is made by what his neighbors, acquaintances and associates generally say of him in this regard. If they generally say he is untruth- ful, that makes his general reputation for truth bad. On the other hand, if a man's neighbors and associates say nothing whatever about him as to his truthfulness, that fact of itself is evidence that his general reputation for truth is good. Testimony of witnesses has been offered here touching the general reputation of N. A. C. for truth and veracity. You are instructed that if the general reputation of C. for truth is successfully impeached, you would be warranted BRIBERY. 1297 in believing or disbelieving his testimony as j'oii in your best judgment may determine. You are the judges of the credibility of the witnesses, and of the weight to be attached to the tes- timony of each of them. You are not bound to take testimony of any witness as absolutely true, and you are not to do so if you are satisfied from all the facts and circumstances, proven on the trial, that such witness is mistaken in the matter tes- tified to by him or from any other reason his testimony is deemed by you to be untrue and unreliable. The effect of impeaching the witness goes only to the weight that should be given to liis evidence. It is submitted to you better to enable you to de- termine in what light to estimate his testimony; but it should have no effect as to facts that you find to be established from evidence offered in the case . It does not impeach his right to be protected as fully as the right of any other person. The law as to its remedial arrangements is wholly impartial. 13. Testimony of an accomplice offering immunity. It has: been for many years considered that a prosecuting attorney, or counsel for the state or government, had the right to promise an accomplice, (now legally designated as an aider and abettor by the statute of Ohio) that if he would give his testimony freely and truthfully, without prevarication, or fraud, he should be protected from prosecution, or whether any special favor should be shown, or immunity offered him. Under the common law this right was conceded to the prose- cuting officer, and as the common law as to crimes and crim- inal procedure is no part of the law of this state, there is now no legal right on the part of the prosecuting attorney to prom- ise favors or offer immunity. But on his own responsi])ility he may assume to promise special favor or immunity to an accomplice, and he may make such recommendation in refer- ence to the penalty to be assessed against such accomplice as he may deem necessary, but the Court is the final judge as to what shall be done in the matter. I deem it to be my duty to make this statement, that you may consider the propriety and effect of the making of promises of favor or immunity to an 1298 INSTRUCTIONS TO JURY. accomplice, in connection with the weight which the jury shall give the testimony of any such witnesses who may have been promised favor or immunity, according to the instructions touch- ing this matter. 14. Specific charges in the indictment. I come now to a con- sideration of the specific charge made by the indictment in this case against the defendant. 15. The law as to bribery. The law of this state, relating to and governing the charges made in the indictment, and which, shall be your guide and authority, is as follow^s: "Wlioever corruptly gives * * * to any state, judicial or other officer, * * * either before or after his election, qual- ification, appointment, or employment, any valuable thing, to influence him in respect to his official duty, or to influence his action, vote, opinion, or judgment, in any matter pending, or that might legally come before him, * * * shall be im- prisoned in the penitentiary or fined," as provided by law, but with which penalty you have no concern, and should not con- sider. This statute defines the crime known and designated as bribery. Before you can find the defendant guilty of the charge made against him, you must be satisfied or find beyond a reasonable doubt the existence of each and all of the following facts and essential elements of the crime contained in the indictment: Omitted. The lavr of Ohio is that in every city there shall be a depart- ment of public service which shall be administered by three or five directors, as fixed by ordinance or resolution of council. The jury are instructed that by law it was one of the duties of said B., as a member of such board, to manage and super\dse all public works, to supervise the improvement and repair of streets You must find also that there was some occasion or call or necessity for the performance of some official duty by the said C. B. B., as such member of the board of public sendee ; that is, BRIBERY. 1299 you must find that there was some matter pending before C. B. B. as such member, or that might legally come before him, wliicli would require his action, vote, opinion or judgment at the time or about the time mentioned in the indictment. The duty imposed by law upon the board of public service and upon the said C. B. B. as a member thereof, to manage and supervise the improvement and repair of streets, required as a matter of law that the said board of public service of the city of Columbus, and the duty by law was imposed upon C. B. B. as a member thereof, to receive bids and award, make and execute contracts for the improvement and repair of streets. And if you find that there was pending before said board of public service, and said C. B. B. as a member thereof, at the time which the indictment charges defendant with having given said B. the sum of $ , any matter relating to the im- provement or repair of any street, or that any such matter might legally come before said B., and you further find that the defendant gave to said B., with the corrupt purpose and intent to influence his official action, or obtain his vote, opinion or judgment, the said sum of $ , or other valuable thing, and that the said B. received the said sum of $ , or other valuable thing, with the corrupt purpose and intent on his, B. 's, part to act in his official capacity, or to vote, give his opin- ion or exercise his judgment in some matter falling within his official duty, in a matter pending before him, as a member of said board, or touching a matter that might legally come before him, then it would be your duty to render a verdict of guilty against the defendant. To corruptly give any valuable thing, means, in law, to give money or other valuable thing with intent to gain an advantage not consistent with official duty, and not consistent with the rights of others ; it means something forbidden by law. Or again, to corruptly give anything means to give it dishonestly, or to bribe another, to obtain some action on the part of an official to incline him to act contrary to the known rules of honesty and integrity. 1300 INSTRUCTIONS TO JURY. To warrant you in finding defendant guilty of the crime charged, you must not only be satisfied beyond a reasonable doubt that the defendant gave the money, and that said B. received the same, as above explained, but you must be satisfied beyond a reasonable doubt that the same was given and re- ceived with the corrupt purpose of causing said B. to act in his official capacity, as already explained, contrary to known rules of honesty and integrity. 16. Intent. You must find that the defendant corruptly gave B. the money with the intent to corruptly influence the official action of the said B. Intent is an operation of the mind not usually proved by direct and positive evidence, but it may be inferred from the facts and circumstances appearing from the evidence. 17. Corpus delicti — M^ist he proved. I have stated to the jury that before you can find the defendant guilty of the crime charged against him, that you must not only find that the defendant corruptly gave said C. B. B. the $ , as charged in the indictment, but you must also find that the said C. B. B. re- ceived said sum of $ from the said defendant with the corrupt purpose of influencing said B.'s official action, or to influence him, said B., in his vote, opinion, judgment, in any matter pending before him, the said B., as an official, or that might legally come before him as such official. The defendant could not corruptly give the said B, the alleged $ , as charged, unless said B. received it. To give implies that it must have been received by B. And of the existence of the latter fact you must be satisfied beyond a reasonable doubt. Before you can find the defendant guilty of the crime of bribery charged, you must find beyond a reasonable doubt that the crime was committed. This is what is termed in law corpus delicti, or body of the crime, or in pure Anglo-Saxon, that the crime was committed. I charge you, gentlemen, by way of caution, that in order that men may not be convicted of crimes, unless the jury are satisfied beyond a reasonable doubt that one has been com- BRIBERY. 1301 mitted, the law is, that before you can find the defendant guilty of the crime charged against him, you must be satisfied beyond a reasonable doubt, not only that B. was bribed, but that de- fendant corruptly gave him the money charged with which he was bribed, as this term has been defined and explained to you. You are instructed, however, gentlemen, before you may find that B. received the said $ and that the defendant cor- ruptly gave it to him in the manner and for the purpose here- inbefore explained, it is not necessary that this fact, if you find it to be a fact, should be proved by what is termed in law as direct and positive evidence, but, like any other fact or facts, it may be proved by presumptive and circumstantial evi- dence, if of such character as not to leave a reasonable doubt in your minds. Each case must depend upon its own peculiar circumstances, and the corpus deUciti must be shown by such evidence as is capable of being adduced, and such an amount and combination of relevant facts, whether direct or circum- stantial, as may establish the guilt of the defendant to the ex- clusion of a reasonable doubt. ^ 18. Direct and circumstantial evidence. Direct evidence is proof of the facts by witnesses who saw the acts or heard the words spoken. Circumstantial evidence is the proof of such facts and cir- cumstances connected with or surrounding the commission of the crime charged, as tend to show the guilt or innocence of the defendant ; it is such proof of facts standing or existing in such relation to the ultimate fact or facts to be proved that such ultimate fact — which is the crime and the defendant's connec- tion therewith — may be inferred or deduced from such sur- rounding facts and circumstances. And if these facts and circumstances are sufficient to satisfy the jury of the guilt of the defendant beyond a reasonable doubt, then such evidence is sufficient to authorize the jury in finding a verdict of guilty. 19. Extrajudicial admission must he corroborated. I have explained to you, gentlemen, that before you can find the de- 1302 INSTRUCTIONS TO JURY. fendant guilty of the crime charged, that you must be satisfied beyond a reasonable doubt of the existence of the corpus delicti, that is, that B, was bribed. I have explained to you also that this may be shown by circumstantial as well as by direct evidence. It is my duty to give you the further instruction that an extra- judicial confession or admission, that is, one made out of court, is not alone sufficient to warrant you in arriving at a conclusion that the defendant is guilty of the crime charged, should you find any such admission to have been made. Before you could find the defendant guilty in such a case, you must find that there is other evidence, direct or circumstantial, which corrobo- rates such extrajudicial confession or admission, and you must be satisfied beyond a reasonable doubt from all the evidence, that the defendant is guilty. An extrajudicial confession or admission made by one accused of crime is one made out of court, and is to be distinguished from a declaration made by one accused of a crime in pursuance of a common design or conspiracy, if you find any such declaration to have been made. 20. Claims as to conspiracy. It is charged by the prosecution in this case, but denied by the defendant, that there was a con- spiracy formed between several parties, including the defendant, to procure the corrupt municipal action by the board of public service, in awarding the contract to pave East Broad street, in tlie city of Columbus, which resulted in the commission of the crime by the defendant as charged, as well as in the giving of other sums of money to other members of the said board of public service, by other persons alleged to be conspirators with the defendant. It is claimed further by the state, and denied by the defend- ant, that this alleged conspiracy, with which defendant is alleged to have been connected, was a common scheme and design to defraud the city in obtaining the contracts in question; and the defendant enters a general denial to the charges made against him. The court has admitted the testimony touching any and all matters pertaining to the charge in the indictment, as competent BRIBERY. 1303 evidence, which is now before you for your careful and thought- ful consideration. 21. The law as to conspiracy. Having stated the claims of the parties, it will now be the duty of the court to instruct you more particularly as to the law regarding conspiracy, as you will apply it in the consideration of the testimony offered in this case. The question whether there was or was not a conspiracy in the transaction involved and under investigation in this case is for the jury to decide. To warrant the jury in finding that there was a conspiracy as charged in this case, it is not neces- sary that there should be evidence that should expressly sliow that fact, though it is essential that you should find that there was a common design between the parties charged with having formed the conspiracy, to warrant you in finding that tliere was a conspiracy in this case, still you are instructed that it is not necessary that the defendant here and the other parties alleged to have formed such conspiracy came together and actually agreed in terms to have that common design and to pursue it by common means. If it should appear from the evidence offered in this case that tlie defendant and others alleged to have participated in the common design pursued, by their acts and declarations, the same object, by the same means, one performing one part, and another, another part of the same, so as to complete it with a view and purpose of the attainment or acomplishment of the same object or end, the jury may consider such evidence, if any such evidence there is, to determine wlietlier the defendant and the others charged were or were not all engaged in the conspiracy to effect the object of such conspiracy. For the purpose of determining whether or not there was a conspiracy as charged here, the jury in this case may consider any and all acts, declarations of the parties alleged to have formed the alleged conspiracy or to have participated therein, as well as any and all writings or documents which may have been prepared by the parties alleged to have been engaged in 1304 INSTRUCTIONS TO JURY. said conspiracy, as well as other evidence or documents offered in evidence, which, in the opinion and judgment of the jury, may have any bearing thereon or connection therewith. The conspiracy, as charged on the part of the state, as before stated, is an alleged conspiracy claimed to have been formed by defendant and others, to defraud the city by obtaining the corrupt or fraudulent action of the board of public service of the city of Columbus, in awarding the contracts for the paving of East Broad street in said city. In your consideration of the evidence in this case, and in determining the question of fact whether or not there was a conspiracy as claimed, it will be your duty to ascertain and determine, not only the existence of the alleged conspiracy, but also its purpose and object, whether it was formed for an un- lawful purpose, whether it was primarily for the purpose of procuring the award of the contract fraudulently, or whether it was formed, if you find that any was formed, for the purpose of defrauding the city, and ol^taining the corrupt municipal action by the board of public service in the matter of the award of the contracts in question. If you are satisfied beyond a reasonable doubt that & con- spiracy was formed in the first instance to fraudulently and dis- honestly obtain the award of the contract in question, then in your further investigations and considerations of the evidence, you may consider each and all of the acts of those whom you may find to have been so engaged in such common design to defraud the city, or to fraudulently obtain the award of the con- tract in question — whether such acts and declarations relate to such alleged conspiracy, or whether they pertain to the manner and means of obtaining or influencing the official action of the members of said board of public service. If you should be satisfied from the evidence that there was such a conspiracy, and that the defendant was a party thereto, you must then determine whether it was for the alleged unlawful purpose of defrauding the city, by fraudulently obtaining the award of the contract in question, or whether the acts of alleged BRIBERY. 1305 bribery by this defendant and others engaged in the alleged conspiracy was an incident of such conspiracy, or whether the purpose of the alleged conspiracy to obtain the award of the said paving contracts was to obtain the same by fraud, as well as through corrupt means as by bribing the members of the board of public service. If you are satisfied beyond a reasonable dou))t that there was such a conspiracy for such purpose or purposes, and that the defendant was a party thereto, then you may consider such fact of conspiracy if, in your judgment, it is a fact, as well as any and all acts and declarations of all parties thereto, including those of the defendant, if you find him to be a member, together with all the other facts and circumstances as appears from the evidence in this case, in determining the guilt or innocence of the defendant of the charge made against him in the indictment. If you are not satisfied of the existence of such conspiracy, and of the defendant's connection with it, then you should not consider it in determining the guilt or innocence of the accused of the crime charged against him.- iSee 50 Am. St., 138-fl, 78 Am. Dec. 248, 11 Am. St. 107; State r. Rhoads. 15 N. P. (N.S.) — . - State V. Rlioads, Franklin Co. Com, Pleas, Kiukead, J. CHAPTER LXXXII. BECKER'S REAL ESTATE COMMISSION. SEC. 1585. 1586. 1587. 1588. 3. Real estate commission — Ac- tion for recovery of. I. Statement of claims. 1. The c o n t r a c t — ^What plaintiff must establish. When purchaser buys premises on terms other than those communi- cated by broker. Entitled to commission though owner declines to sell. Entitled to commission when owner enters into en- forceable contract with purchaser. When broker a director of corporation purchasing property. SEC. 1589. 1590. 1591. Broker must show that he accomplished all that was required of him by the employment, that his efforts were efficient cause of sale — If not, and owner makes sale, no recovery can be had. Entitled to compensation when purchaser produced — Though owner conducts negotiations and sells on different terms. Right of agent to commis- sion when several em- ployed — Purchaser pro- duced must be client of agent first conducting negotiations. Sec. 1585. Real estate commission— Action for recovery of. 1. Statement of claims. 2. The contract — What plaintiff must establish. 3. When purchaser buys premises on terms other than those communicated by broker. 1. Statement of claims. This is an action brought for the recovery of a sum of money which plaintiff claims to be due from the defendant on a specific contract alleged to have been made between the parties by which the defendant agreed to pay the plaintiff the sum of $ for services to be rendered by plaintiff in the sale of property belonging to the defendant. The defendant enters a general denial. 1306 broker's re.\x, estate commission. 1307 2. Tlie contract — V^liat plaintiff must establish. The question is what the contract was between the parties. Where an owner of real estate makes a specific contract with another to act as a broker or agent to sell his property, such sale to be made upon certain terms and conditions which are prescribed and stated by the owner, to the broker or agent, the latter, the agent, to be entitled to a recovery of the amount agreed upon between himself and the owner as commission for making the sale or for producing the purchaser, it is incumbent upon him, the agent, to prove that he procured a purchaser who was ready, willing and able to purchase and take the property upon the precise terms and conditions named by the owner in tlie contract made by him with the agent in which the owner has authorized the agent to make the sale. The broker must, therefore, bring a purchaser to the owner of the property who is willing to take the property on the terms named by the owner in the contract made by him with the agent and the sale must have been con- summated through the agency or instrumentality of the agent.^ 3. When purchaser buys premises on terms other than those communicated by broker. This is the general doctrine which governs and applies to this class of contracts, but it is subject, however, to another different rule that is equally as well estab- lished as a rule of law, to the effect that a broker or agent who is employed by a specific contract to procure a purchaser for, or to effect a sale of property for an owner thereof at a specified price, is entitled to his commission as agreed upon between them, if such agent produces a purchaser who is able and willing to purchase the property on terms other than those named by the owner to the agent, if and providing the purchaser is able and willing to purchase and does purchase on terms which are entirely satisfactory to the owner, though such terms are dif- ferent from those prescribed l)y the owner in his contract witli the agent. If, therefore, such owner liaving made a special contract with the agent, continues negotiations in connection with this sale, receiving, accepting and acting upon the services of sucli agent, and voluntarily agrees and consents to make, and does make the sale to the [)urchaser produced l)y such agent upon 1308 INSTRUCTIONS TO JURY. other and different terms than those prescribed in the contract made with the agent in the first instance, such agent is entitled to the commission or compensation as originally agreed upon if the owner fails to repudiate his first agreement or fails to agree upon some other amount to be paid as compensation in making the sale upon the different terms. The jury will apply these rules in determining the question of the making of the contract which is submitted to you, the same not having been committed to writing.^ ijohnson v. Wriglit, 124 Iowa, 61; Watters v. Dancey, 23 S. D. 481, 139 Am. St. 1071. But see sees. 1289, 1290 post. 2 Cessano v. Walker, Franklin Co. Com. PI., Kinkead, J. Sec. 1586. Entitled to commission though owner declines to sell. The jury is instructed that an agent who procures a purchaser of real estate under contract with another to do so, who is ready, willing and able to purchase the same at the terms fixed, and at a price stated, is entitled to recover his commission, even though the owner declines to sell.^ iRyer v. Minninghara, 78 N. J. L. 742; Owen v. Riddle, 81 N. J. L. .546, 79 Atl. 886, Ann. Cas. 1912, 45. Sec. 1587. Entitled to commission when owner enters into enforceable contract with purcha,ser. The jury is instructed that where one is employed as a broker to procure a purchaser for property, and presents to the prin- cipal or the owner of the property a proposed purchaser, it is within the right of such owner then to decide whether the person presented is acceptable. If (without fraud or other improper practice on the part of the broker) the principal or owner ac- cepts the person presented, and enters into an enforceable con- tract with him, the commission is thereupon fully earned, and such agent or broker is, therefore, entitled to recover the amount thereof, even though it may subsequently turn out that the purchaser is unable to comply with his contract, and on tliat account the sale is not consummated by the transfer of the property. broker's real estate commission. 1309 So if tlie jury find that the contract between the parties was an ordinary contract, made without any conditions, the broker being employed in the usual way, and that there was no bargain entered into between the parties, except that the commission was to be paid the broker in case the sale went through, and the defendant accepted the purchaser produced by plaintiff, and entered into an enforceable contract with him for the pur- chase and sale of the property, then plaintiff is entitled to recover.^ iKelley v. Baker, 132 X. Y. 1, 28 Am. St. 542; Francis v. Baker, 45 Minn. 83. Sec. 1588. When broker a director of corporation purchasing property. The jury is instructed that where a broker who is employed by an owner of real estate to sell property is a director or member of a corporation which is the purchaser produced by such broker of the property he is employed to sell, he is not entitled to his commission unless seller or o^^^ler, being in possession of all the facts of the relation of the broker to the purchaser, consents and agrees to pay the commission under such circumstances.^ So if the jury find — 1 Humphrey v. Transp. Co., 107 Mich. 165; Xekarda v. Presbcrger, 123 App. Div. 418. Sec. 1589. Broker must show that he accomplished all re- qidred of him by the employment, that his efforts were efficient cause of sale — If not, and owner makes sale, no recovery can be had. The jury is instructed that l)efore a real estate agent or broker is entitled to recover a commission for procuring a purchaser of real estate (or making a sale), he is bound to show that he has accomplislied and done all the things that he undertook to do under the contract of employment, it is incumbent on him to show that he found and produced a person who was readj% willing and financially able to purchase the property which he 1310 INSTRUCTIONS TO JURY. was engaged td sell, at the price and upon the terms and con- ditions fixed by the owner of the property and the one who employed him. He must show also that he was the efficient agent or procuring cause of the sale, and that the means employed by him and his efforts resulted in a sale. So where a broker under employment by the owner opens up negotiations with a proposed purchaser, but abandons them without fault of the owner, and the owner himself subsequently sells the same property, without further effort on the part of the broker, in such case the owner is not liable to the broker for commissions.^ So if the jury finds. 1 Chaffee v. Widman, 48 Colo. 34, 108 Pac. 995, 139 Am. St. 220. See note in latter report on pp. 225-259, Necessity of Broker Being Procuring Cause of Sale, numerous cases cited on p. 245. Sec. 1590. Entitled to compensation when purchaser pro- duced though owner conducts negotiations and sells on different terms. The jury is instructed that a broker employed to sell land is entitled to his compensation if he brings to the seller a purchaser able, ready and willing to purchase on the terms named, or if he brings them together and the sale is afterward consummated by the seller himself. So, if the broker introduces a prospective purchaser, and the owner undertakes to conduct the negotiations, and finally sells the property for less than the terms named in the contract with the broker, he tliereby waives his right to insist on the terms of the contract in that respect, and is liable at least for a reason- able commission, and the contract may be considered as a guide by the jury in arriving at what is reasonable compensation.^ 1 Smith V. Sharpe, 1G2 Ala. 433, 50 South. 381, 136 Am. St. 52; Jones v. Henry, 15 Misc. 151; Plant v. Thompson, 42 Kan. 664, 16 Am. St. 512; Sylvester v. Jackson, 110 Tenn. 392. The rule of this instruc- tion is not uniform, many authorities holding that a broker must make the sale according to the terms fixed in the contract made by him with the owner, and that he must be the efficient cause of the sale. See note and cases 139 Am. St. 220-259. See ante, sees. 1285 and 1289. broker's real estate commission. 1311 Sec. 1591. Right of agent to commission when several em- ployed — Purchaser produced must be client of agent first conducting negotiations. The duty of a vendor who employs more than one broker to sell his property is to allow them to act independently and to remain neutral as between them, as well as between them and a purchaser. The owner can not step in and complete the sale and escape liability for commission. Such owner is required to exercise the utmost good faitli with the brokers. Where property is listed by an o^^■ller with several agents, who are under such employment at the same time, the one who first sells the property is entitled to the commission. But before such agent or broker can be considered as the producer of a purchaser, the party whom he presents to the vendor and owner must be a client or customer of his own, and not one then sustaining existing relations to another broker under like em- ployment and who is at the time conducting negotiations con- cerning the sale. The broker or agent who Avas first in negotia- tion with the proposed purchaser and vendor continues to sustain that relation until it is expressly broken off, or the matter of the purchase has ceased to be held by him under consideration. The employer, with notice of the pendency of such negotiations, can not escape liability to the broker for his commission by selling to his customer through another, even though he first discharges the former, if be does so without giving him a reason- able time to effect the sale.^ 1 Jennings v. Trummer, .'"i2 Ore. 149, 96 Pac. 874, 132 Am. St. 680; Tinsley V. Scott, 69 111. App. 352; Day v. Porter, 60 111. App. 386. CHAPTER LXXXIII. BUILDING CONTRACTS. SEC. SEC. 1592. Substantial departure there- 1597. Same — Acts showing knowl- from without consent — edge of departure from Recovery for extras. contract. 1593. Failure to do work in work- 1598. Same — 'Settlement without manlike manner. fraud or mistake. 1594. Substantial performance, ex- 1599. Contract as to extras. cept slight variations. 1600. Substantial performance of 1595. Deduction for unfinished contract. parts. 1601. Extras — Whether contract 1596. Owner estopped by conduct express or implied, or in acquiescence in work work voluntarily done. not done according to contract. Sec. 1592. Substantial departure therefrom without consent — Recovery for extras. It being admitted by both parties that written contracts were entered into between them, these should control so far as appli- cable to the matters in contention, except as you find that they have been modified by the mutual consent of the parties. Any substantial variation or departure in construction or material from that provided for by the terms of the Vv'ritten con- tract, unless made ^nth the consent and approval of the defend- ant, though it made the completion of the job more expensive than provided for in the contract, would not constitute such extras as would entitle the plaintiff to recover therefor. To enable the plaintiffs to recover for extra expenses by reason of deviations from the plans stipulated for in the contract, it must appear that the same were made, and with the authority of the defendant, either express or implied, and under such cir- cumstances that implied that he should pay therefor. * * * If you find from a preponderance of the evidence, and guided and limited by these instructions to you, that such extra work 1312 BUILDING CONTRACTS. 1313 and material were furnished, and if you also further find that the defendant became obligated to pay therefor, as herein defined and limited, then whatever extras the plaintiffs did so actually pro\ide would constitute a valid claim, to the extent of their reasonable value, at the time and place they were applied, unless the price for such modifications were expressly agreed upon, in which case the express agreement should prevail. If anything was omitted or changes were made to an inferior and less expensive mode of construction than stipulated for in the contract, the defendant would be entitled to have the value of the omitted material and the difference in the value of the less ^'aluable material from that contracted for deducted from any balance due the plaintiffs on the contract, unless substitutions were made of other materials or work in lieu thereof by the authority of the defendant, and which were considered by the parties as an equivalent therefor. To the extent the parties agreed upon such omissions or substitutions you may consider the contract modified, and in adjusting balances, allow or deduct what the evidence shows would be reasonable, having reference to the stipulations of the contract in that respect, unless you find these matters to have been agreed upon by the parties as to price, in which case the agreement should prevail.^ 1 Voris, J., in Wilhelm v. Colohaii, Summit Co. Com. Pleas. Sec. 1593. Failure to do work in workmanlike manner ac- cording to contract. If, in respect to any of the matters alleged in the defendant's answer, the plaintiffs did not do their work in a workmanlike manner, and according to the stipulations of the contract, then the defendant would be entitled to have such difference in value deducted from the contract price, unless you find that the de- fendant accepted the same as a compliance with the contracts, or settled therefor as herein qualified. We include in this in- struction tliosc matter's agret'd upon tliougli not included in the written contracts.' i Voris, J., in Willielm r. Cololian, Summit Co. Com. Pleas. 1314 INSTRUCTIONS TO JURY. Sec. 1594. Substantial performance, except slight deviations. If the plaintiffs fully performed their part of the contract, then they would be entitled to recover the full price contracted for, less payments actually made. But if the plaintiffs substantially complied with the contract except in some slight deviations, they would be entitled to re- cover the contract price, less the diminution in value to the owner on account of the deviations ; or what the house was actually worth less on account of these departures.^ 1 Voris, J., in Wilhelm ;•. Colohan, Summit Co. Com. Pleas. Sec. 1595. Deduction for unfinished parts. The jury is instructed that plaintiff is entitled to recover the balance due at tlie contract price, less such sum as it may require to construct or complete the unfinished parts according to the terms and conditions of the contract, as well as any reasonable expense made necessary by being compelled to procure such completion.^ 1 Voris, J., in Wilhelm v. Cololian, Summit Co. Com. Pleas, 26 0. S. 101. Sec. 1596. Owner estopped by conduct in acquiescence in work not done according to contract. If the work was not according to the contract and you find that the defendant stood by and saw them prosecute the work without objection, and was benefited by the labor and materials, the plaintiffs would be entitled to compensation to the extent of such benefit; that is, what the same were reasonably worth, but not to ejcceed the contract price. Or, when the same was completed, but lacking in quality, the contract price is to be reduced by the difference in the value of the work as it would have been by the contract and as it actually was. Defendant is entitled to have his contract, in its true spirit and intent, substantially executed, except as its terms have been waived by C, or his duly authorized agent in the premises, and any failure on the part of plaintiff to so perform entitles de- BUILDING CONTRACTS. 1315 fendant to reduction of the contract price to the extent the same was rendered thereby less valuable than contracted for, unless defendant being advised in the premises, knowing the material facts, accepted the buildings as a performance of the contracts, or settled therefor as herein defined and qualified.^ 1 Voris, J., in ^Yilhelm r. Colohan, Summit Co. Com. Pleas. Sec. 1597. Same— Acts showing knowledge of departure from contract. The fact that the defendant had bills rendered from time to time to him, and was present as the work progressed, paid money from time to time, went into possession of said house and barn, the knowledge he had of and concerning the same, what he said and did concerning the character of the work and material, are circumstances from which the jury may infer whether he had or had not information as to the modifications from the contract, character of the work, extras, material, quality and price thereof, and whether he did or did not assent to, or accept the same, or settle therefor.^ 1 Voris, J., in Willielm v. Cololian, Summit Co. Com. Pleas. Sec. 1598. Same — Settlement without fraud or mistake. The jury is instructed that if the parties got together and fully settled the matters growing out of the building transac- tions, the same would conclusively bind the parties, in the ab- sence of fraud or mistake. But if you find that the defendant acted mth reasonable prudence, and in good faith, and relied upon the representations of the plaintiflfs and was deceived thereby, and by reason thereof agreed upon a settlement he would otherwise not have made, he would not be bound thereby. If the defendant acted in good faith and not knowing and having no knowledge of any deception, he would be entitled to rely upon the representations of plaintiffs made to him in making settlement. If you find that a settlement was actually entered into by said parties and as part thereof plaintiffs promised the defend- 1316 INSTRUCTIONS TO JURY. ant that if said work had not been in fact done and performed in accordance with the representations and said contracts, that plaintiffs would on request of defendant return to said build- ings and do all things required, in order to make the work as represented by plaintiffs, and as required by said contracts, then it would be obligatory upon defendant to make such request within a reasonable time, and what would be a reasonable time we leave for you to say from the evidence submitted to you, before defendant would be entitled to a reduction for failure to return to said buildings and do all things required in order to make the work as represented by plaintiffs, etc. But if you find that the representations by plaintiffs were false and untrue as to the state of said work and material, that in substantial particulars the work had not been performed in accordance with the terms of said contracts, that the said extras so as aforesaid charged for were estimated both in quantity and value greatly in excess of the amount actually done, or of the value of that which was done, and that the defendant relied upon such representations and promises, and not knowing to the contrary, and defendant thereafter requested the plaintiffs to return to said work and complete the performance thereof, as required by said conltraets, and the plaintiffis neglected, and ever since have neglected so to do, or you find that the parties did not settle as herein defined, the promise of the defend- ant to pay said balance would not be binding on him.^ 1 Voris, J., in Willielm v. Colohan, Summit Co. Com. Pleas. Sec. 1599. Contract as to extras. That you may determine the matters at issue between the parties, you will look into the evidence and find what work and material the written contract entered into for the construction of the building required to be done. After you have ascertained that, then you will inquire whether or not the plaintiff did anything at the request of the defendant towards the construc- tion and completion of the building, other than that agreed to be done in the written contract. If you find that work was done BUILDING CONTRACTS. 1317 Other than that or outside of that p^o^'ided for in the written contract, then you must ascertain what it was reasonably worth. Any substantial violation or departure in the construction of the building: hxtm that provided for in the tonus of the written contract, if made at the request of the plaintitf and which made the completion of the work more expensive than that provided for in the written contract, then that would constitute such extras as would entitle the plaintiff to recover therefor to the extent of the reasonable value of the extra work and material so supplied at the request of the defendant. If you find that this extra work was done by the plaintiff at the request of the defendant and that there was no special or other contract, it should be paid therefor, you are instructed that the law implies a contract on the part of the plaintiff that he will pay the defendant such an amount as the work is reasonably worth. ^ 1 Voris, J., in Wilhelm v. Cololian, Summit Co. Com. Pleas. Sec. 1600. Substantial performance of contract. Before the defendant can recover upon this cause of action the full amount of its claim, it must establish by a preponderance of the evidence that the defendant has substantially performed said contract according to its terms, and that, notwithstanding such performance, the architect has fraudulently, or unreason- ably refused to issue the final certificate therefor. However, if the defendant has substantially performed on its part the terms of said contract, and only slight omissions or inadvertences have occurred, or exist, where the defendant has made an honest effort to perform, and has not willfully omitted the performance of the terms of said contract, and, further, if the architect fraudu- lently or unreasonably refused to issue the certificate as reqinred by the contract, the defendant is entitled to recover the amount or balance due on the contract, less such an amount as will compensate the plaintiff for the loss suffered by reason of siieli slight omissions and inadvertences, if any. "Rut if the omissions or inadvertenees, if any, are not slight, but are of a substantial character, then you are justified in finding that the contract was 1318 INSTRUCTIONS TO JURY. not substantially performed by the defendant, and that it is not entitled to recover the balance of the contract price, for defendant in order to recover on its contract must show sub- stantial performance on its part, and this rule applies to the contract in question, as well as any other contract.^ 1 The F. & R. Lazarus & Co. v. The Bryant Bros. Art Glass Co., Franklin County Court of Com. Pleas, Rogers, J. Sec. 1601. Extras — Whether contract express or implied or work voluntarily done. The plaintiff claims, in addition to the balance due on the contract, that he is entitled to $ for extras finished after the original contract was entered into, an itemization of which extras claimed is attached to the petition. The court instructs you that these items of extras, and each one of them, are based upon an alleged agreement therefor. However, it is not neces- sary that the plaintiff and defendants should expressly agree that the items of work as claimed by the plaintiff should be performed or that they would pay any specific amount therefor. But, the agreement may be implied from all the facts and circumstances surrounding the relations of the parties, both as to the performance of the work and the price to be paid there- for. Wliether or not there were agreements, either express or implied, with regard to the alleged extras or changes, or any of them, is a matter for your determination from the evidence under the charge of the court. An express agreement arises from the express language used showing an agreement. An implied agreement arises from the facts and circumstances showing that by tacit understanding between the parties an agreement was intended. As to such items for extras, if any, as show an agreement between the parties therefor, you will allow to the plaintiff the reasonable value, as shown by the evidence, for such extras, if any. But if as to any or all the said items for extras, the facts and circumstances show no agreement, either express or implied, therefor, it will be your duty to disallow any or all such items, as the case may be. BUILDrNG COXTRACTS. 1319 The defendants admit that they are indebted to the plaintiff for the sum of $ for enlarging flues and placing furnace stacks in the house. The plaintiff's claim is that the $ was not for enlarging flues and placing furnace stacks, but was for furnace pipes in the house. Therefore, you will determine from the whole evidence whether or not the plaintiff is entitled to be paid for any of the items of extras set up in his second cause of action. If you find by a preponderance of the evidence that the plaintiff is entitled to any of them, you will determine the amount to which he is entitled and include such amount in your verdict. If you find he is not entitled to anything except the $ for enlarging flues and placing furnace stacks, you will merely allow that amount as a part of your verdict. If you determine that the plaintiff had no contract with the defendants, either express or implied, from all the facts and circumstances in the case, with regard to the alleged items for extras, or any of such items, but that the plaintiff voluntarily did the extra work or any part of it without any orders from the defendants, or either of them, or, if you find that changes were made in the house, which, by mutual arrangement between the parties, either express or implied, were not to be charged against the defendants as extras, you will not allow any extras for such items to the plaintiff, even though he may have made the house better by reason of extra material furnished or labor performed in the construction of the house. For the matter of extras, as heretofore stated, was a matter of agreement between the parties either by reason of an express understanding between them or arising from such facts and circumstances as will imply an agreement between them, to perform the extra work and to receive payment therefor, and the plaintiff would have no right to volunteer to furnish additional material or better material or to do extra labor upon the house without some agreement, either express or implied, to be paid therefor, and then charge the defendants for such material or labor or both, as the case may be. In other words, if he made the house better than the 1320 INSTRUCTIONS TO JURY. original contract provided for udthout any agreement, either express or implied, between the parties, he has no right to recover for such extra work. However, if as to some of the items he had an understanding or agreement, either express or implied, with the defendants, and as to other items he did not have an understanding, either express or implied, that he should do the extra work and be paid therefor, as to those items wherein he had an understanding or agreement, you will make allowances to the plaintiff for the amount to which he is entitled, and as to those wherein there was no understanding or agreement, you will not make any allowance.^ 1 Stolz V. Grasser, et al., Court of Com. PI., Franklin Co., Rogers, J. CHAPTER LXXXIV. BURGLARY. SEC. SEC. SEC. 1614. Complete instructions to 1602. Burglary and larceny. jury in charge of bur- 1603. Burglary — Degree of force. glary of storehouse — Em- 1604. Burglary of chicken or Iien- bracing: liouse. 1. Burden. 1605. Burglary of dwelling house. 2. Presumption of inno- 1606. Maliciously breaking and en- cence. tering. 3. Reasonable doubt. 1607. Breaking and entering. 4. Credibility of witnesses. 1608. Burglary of inhabited dwell- 5. Accomplice — Testimony ing. of. 1C09. Must be in night time. 6. Alibi. 1610. Intent to steal. 7. Circumstantial evidence. 1611. Intent to steal from railroad 8. Possession of stolen prop- car. erty. 1612. Burglary of railroad car — 0. The statute. Proof of incorporation 10. Xight season. not necessary. 11. Maliciously breaking. 1613. Entrv into car. Sec. 1602. Burglary and larceny — Force necessary in. As to the force necessary to constitute a breaking, it may be the lifting of a latch, making a hole in a wall, descending the chimney, picking, turning, or opening a lock \^dth a false key or other instrument ; lifting a latch or other fastening,^ remov- ing a pane of glass; pulling up or dowTi an unfastened sash; removing the fastening of a ^nndow by inserting the hand through a broken pane; pushing up a window which moves on hinges and so fastened by a wedge, and other like acts. It has also been held by the highest court of this state that: "The force necessary to push open a closed but unfastened transom that swings horizontally on hinges over an outer door of a dwell- ing is sufficient to constitute a breaking under our statutes, which requires a forcible breaking," - 1321 1322 INSTRUCTIONS TO JURY. Then as a matter of law to constitute a burglary there must be a forcible ^ breaking which must precede the entry/ but it is not necessary that there should be any destruction of a building, or any destruction of the parts of the building. If you find from the evidence that the doors of the car were closed, and that the fastenings of the door of the car were removed, and the door pushed or forced open, that would be sufficient to constitute a breaking under our statute.^ 1 81 Iowa, 93. 2Timmons v. State, 34 O. S. 426. 3 The constructive breaking of the common law is sufficient. Ducher v. State, 18 O. 308. 4 Wine V. State, 25 0. S. 69. 5 Nye, J., in State v. Kemp, et al., Lorain Co. Com. Pleas. Entering dwelling by a trick has been held burglary. State v. Henry, 9 Iredell, 463. Sec. 1603. Burglary — Degree of force. "If the jury are satisfied beyond a reasonable doubt as to all the other elements necessary to constitute a burglary except a breaking, and find that the transom was closed on the night in question, though not fastened, and that the defendant used sufficient force to push it from its place, so that it would swing open, that would be a sufficient breaking in law, and, under the circumstances, if satisfied beyond a reasonable doubt, their verdict should be guilty. ' ' ^ iTimmons v. State, 34 O. S. 426. Sec. 1604. Burglary of a chicken or henhouse. The jury is instructed that a hen hoiLse in law is considered to be within the statute making it burglary to maliciously and forcibly break and enter any "other building" than those specifically named in the statute, provided the henhouse is a structure of some permanence. It need not be absolutely perma- nent, nor of such character of structure as that its removal would damage the real estate. A mere temporary movable chicken coop is not such a structure as comes within the statute BURGLARY. 1323 prescribing the crime of burglarj-.^ Before you can find the defendant guilty you must find that defendants maliciously and forcibly broke and entered a chicken or hen house of some permanency, M"ith intent f^ steal property of any value. 1 General Code, sec. 12438. Bailey v. State, 7 C. C. (X.S.) 28, 16 0. C. D. 375; aflfd. 69 0. S. 551. A poultry house. State v. Buechler, 57 O. S. 95. Sec. 1605. Burglaiy of dwellings hoiise. The statute provides that whoever in the night season, maliciously and forcibly breaks and enters an [uninhabited] [inhabited] dwelling house with intent to steal property of any value, or with intent to commit a felony, is guilty of burglary.^ The elements of this crime, and the several facts, the existence of which the jury must find before the defendant can be convicted by your verdict are that the defendant did in the night season, on or about , 19 — , within the county of and state of Ohio, maliciously and forcibly break and enter an uninhabited dwelling. The jury must also be satisfied that the defendant did maliciously and forcibly break and enter the dwelling house with the intent to steal the property then and there located or being in the dwelling house which is of some value. 1 Code, sec. 12438. See full charge in Burglar}'. State v. Walshenberg, 7 N. P. (N.S.) 219. Sec. 1606. Maliciously breaking- and entering. To maliciously break and enter a dwelling house is to do so with a wicked or mischievous intention of mind ; to be possessed and controlled by a depraved inclination towards mischief; with an intention to do an act which is wrong, without just cause or excase, being and constituting a wrongful disregard for the riglits and safety of others. If you find that the defendant did break and enter tlie dwelling house of as charge The term "baggage" includes such items of necessity or con- venience as are usually carried by passengers for personal use and comfort or protection during the continuance of a jour- ney, and what constitutes baggage in any given case depends, in some measure, upon its own circumstances.^ 1 Railroad v. Johnson, 50 Colo. 187, 114 Pac. 650, Am. Ann. Cas. 1912, C. p. 627. What baggage includes, see note, 99 Am. St. 347. Sec. 1641. Baggage — Liability of carrier, that of an insurer. The jury is instructed that the liability of a common carrier when it undertakes to carry baggage of its passengers, for the loss thereof, is that of an insurer except when the loss is occa- sioned by an act of God or a public enemy. But in the absence of a special agreement therefor the carrier does not incur this liability as insurer, unless the passenger accompanies the bag- gage in its transportation or is prevented from so doing by the fault of the carrier.^ The act of God must be the entire cause of the loss, it being essential that the carrier be free from any negligence contributing thereto.- 1 Wood V. Railroad, 98 Me. 98. 56 Atl. 339, 99 Am. St. 3.39, note p. .345. 2 Sonneborn v. Railway, 65 S. C. 502. An unusual flood is an act of God. Lont:: V. Penn. R. Co., 147 Pa. St. 343, 30 Am. St. 732. CHAPTER LXXXVI. COMPROMISE, SETTLEMENT AND RELEASE. Sec. Sec. 1642. Compromise of cause with- 1643. Claim of void release of out knowledge of coun- cause for personal in- sel — Claimed to have jury set up in reply and been induced by fraud — submitted to jury — In- Burdcn and proof. structions. Sec. 1642. Compromise of cause without knowledge of coun- sel — Claimed to have been induced by fraud — Burden and proof. If you have found upon these propositions in favor of the plaintiff, then you will proceed to inquire and determine the other question, whether a settlement, adjustment or compromise of the cause was made, between the plaintiff and defendant as alleged. The plaintiff had a right to settle, adjust and com- promise the action which had been commenced, without first taking the counsel, advice or consent of his attorney, and with- out reference to the views or wishes of his attorney. To con- stitute a valid settlement, it must have been understood between the parties at the time it was made; their minds must have met upon the proposition which Avas made with reference to a settlement on the one hand and the acceptance thereof by the other. The plaintiff claims that no such settlement was made, and the quesion must be decided by the jury. Tf you find a settlement was made as claimed by the defendant, and that the same was complied with upon their part, then you need inquire no furthor, bnt should return a verdict for the defendant. But if, on the other hand, you find that a settlement was not thus made, but was brought about as is claimed by the plaintiff, by fraud practiced upon him, and by reason of false representa- 1357 1358 ESrSTBUCTIONS TO JURY. tion made to him at the time ; that he was induced by reason of fraud thus practiced, and representations thus made, to enter into an arrangement, agreement and settlement whicli was then made, this would not constitute a settlement between the parties, and upon this proposition you should find for the plaintiff. The burden of proof upon the question of settlement is upon the defendant, but so far as the introduction of the paper writ- ing by the defendant is concerned, or the paper purporting to have been executed and signed by him, it would be prima facie evidence of the making of such settlement, that is, if you find that he signed the paper writing that is offered in evidence, and in determining the question whether fraud was practiced upon him, upon that question, the burden of proof would rest upon the plaintiff, and you must remember that fraud is not to be presumed — it must be shown and established by a prepon- derance of the evidence upon the part of the plaintiff, proven as any other fact in the case.^ 1 Pennsylvania Co. v. Lombardo, 49 O. S. 1. Sec. 1643. Claim of void release of cause for personal injury may be set up in reply and submitted to jury — Instructions. Your attention is first called to the receipt and release pleaded in full by the defendants in their answer and which I have already read to you. On its face it purports to be a receipt for $ in full satisfaction and discharge of all claims accrued or to accrue in respect of all injuries or injurious results, direct or indirect, arising or to arise from the accident complained of by plaintiff. The signing of such a receipt and release consti- tutes in law prima facie evidence of its due execution and valid- ity. That simply means that on the face of things it is a valid release and unless something is offered by way of rebutting the same, why, of course it was to be taken for granted that the release was valid and lawful. Therefore the burden rests upon the plaintiff to show that the release was fraudulently obtained so as to render it void. The plaintiff can recover in COMPROMISE, SETTLEMENT AND RELEASE. 1359 this case only in the event that he proves to you that this release was void. The release is set up in the answer by the defendants and attacked by allegations by the plaintiff in his reply to the effect that his signature was fraudulently obtained thereto by repre- sentations made to him by defendants that said writing was merely a receipt for wages due him, upon which he says he relied without' reading the same or knowing what it contained. This presented, in the judgment of the court, a proper case to go to the jury without having alleged tender of the amount paid — that is, without the plaintiff having actually tendered back to the defendants the $ and having alleged that in his plead- ing ; because if such allegations are proved as claimed and alleged by the plaintiff the release is void. 1. Void or voidahle release. That the jury may understand its function and duty in determining the question of fact con- cerning the release, whether it is void or not, or whether it is voidable only, your attention is called to the distinction between a void release and a voidable one. A release which is signed without knowing its contents upon false representations as to its contents made under such circumstances as will excuse the per- son from reading the same, or as would warrant the person in relying upon the representations made, and which representations were of such character as to throw the party, the plaintiff in this case, off his guard, M^ould be void. If, for example, plaintiff be- lieved, as he claims he did, that the paper which he signed was a receipt for money advanced to him by defendants during his dis- ability for his time lost, and that it represented merely the amount so paid to him during that period and for that purpose, and was intended to merely show where the money went, and that the plaintiff did not know that it embraced anything else in its terms, then it would be void and the jury, if they find those facts to exist, v.'ould be justified in finding the release to be void and therefore of no legal effect. If, on the other hand, at and prior to the execution of the paper plaintiff and defendants together considered and discussed the matter of the advancement of the money by defendants to plaintiff, and the disposition of the ISeO INSTRUCTIONS TO JURY. obligation of plaintiff to defendants therefor; if the jury find that there was such an obligation of release — and that the matter was considered by the parties in connection with the injury which plaintiff had suffered, and in connection with his right of action in a court of law for the recovery of damages therefor ; and if the final result of such consideration and discussion between the parties was that the receipt and release was signed, and with full knowledge of all these matters, partly in con- sideration of the money so advanced, as well as by way of a release of the obligation of plaintiff therefor by defendants, but that the plaintiff did not read the paper and did not know and fully appreciate the full contents and effect of the receipt and release, and did not laiow that it was in effect an absolute release of his claim for damages resulting from the injury, then the release would be voidable only. That is, it could be de- clared and held void only upon the election made or exercised by the plaintiff. 2. Election to declare release void. In order to exercise such right of election, that is to declare the instrument void, plaintiff' would have had to have brought a proper action in a court of equity, as we call it, setting forth sufficient grounds for the an- nulment of the release. As a condition precedent to making such election and bringing such an action, plaintiff would had to have restored to defendants w^hat they had paid to him, to-wit, the $ ; he would had to have tendered the money back to the defendants, not only before the action, but he would had to have alleged in his pleading that he had so tendered it back, and as well to tender it in court in order to have made out a cause of action for the annulment of that release, which it would have been essential to bring before he could have maintained his action for the recovery of damages. You understand, gentlemen, that would be necessary in the event that this release is voidable only, and I have endeavored to state the matter to you as clearly as possible in the light of the evidence to enable you to determine the character of the release, whether it is void or voidable. The plaintiff has made no tender in this case, nor has he sought to have the release annulled. COMPROMISE, SETTLEMENT AND RELEASE. 1361 The defendant having averred the rek^ase in his answer, the plaintiff has brought himself within the established rule of pro- cedure in such case by averments in his reply claiming it to be a void release. Where a plaintiff in an action like this, claims that an alleged release given by him to be void, the inile is, that he need not claim it to be void in his petition, but he need pa}^ no attention to it unless the defendant sets it up in his answer. In the reply plaintiff may attack the release on the grounds that it is void; he may introduce testimony touching the same, and the question then may be submitted to the jury; and in this case therefore he — the plaintiff — is con- fined and limited, so far as recovery in this action is concerned, solely to the theory that this release is void, and the question submitted to you is whether the ervidence shows it to be void. Governed and gjiided by these instructions, the jury will determine whether the release is void. In reaching a conclusion on this matter you will have to determine whether the evidence shows it to be voidable or void. If you are of the opinion that the release is only voidable, that is under your consideration of the case, because of no tender having been made and no release in equity having been sought in this action, the plaintiff can not recover, and it would be your duty to at once render a verdict for the defendants without any further consideration of any other question in the case. If you are of the opinion that the release is void, no tender back of the money having been necessary in such a case, the plaintiff will not therefore be precluded from recovery by reason of such release, and you may then, in that event, proceed to con- sider and determine the question of negligence charged.^ 1 Easton r. Eobinson, Franklin Co. Com. PI.. Kinkoad, J., affirmod by Circuit Court. A void rplea.so of a cause for personal injury is not k linr. PlaiiitifT may make the claim in the reply. If voidable only, he ejiii not maintain the action until the release is set aside. The cancellation of release and claim for injury may be united. Perry r. O'Neil Co., 78 O. S. 200. See Insurance Co. v. Burke, 69 O. S. 204; Ins. Co. V. Hull, 51 O. S. 270. CHAPTER LXXXYII. CONTRACTS. ( See Contracts for Personal Services — Building Contracts. ) SEC. 1(544. Meeting of minds. 1645. Contract by ratification when no meeting of minds in the beginning. 1646. Consideration. 1647. Contracts, express or implied. 1648. Contract made under duress or compulsion. 1649. Consideration, exclusive right to patented invention. 1650. Words applied to trade — "New dress" for paper — Construction for jury. 1651. Implied contract to be found by jury. 1652. Parol evidence to vary writ- ten instrument. SEC. 1653. 1654. 16.55. 1656. 1651 Latent ambiguity in contract. Latent ambiguity in oral con- tract. Defense of illegality of con- tract. Cleaning of contract to con- struct and furnish a thing of the "finest quality," for the jury, when. Action for breach of covenant of lease, for failure to re- pair, maintain and sur- render premises. "Reason- able use," "Reasonable wear." Sec. 1644. Meeting of minds. The jury is instructed that the meeting of the minds of the parties upon its terms is necessary to the making of a contract. If the minds of the parties have not met on any terms of agree- ment, there is no contract; and this is so whether the contract is claimed to be express or implied.^ 1 Railway r. GaflFney. 65 0. S. 104. Sec. 1645. Contract by ratification when no meeting- of minds in the beginning. The jury is instructed that where a contract is entered into without full and complete understanding between the parties of all its terms and conditions, it still may be made a valid and 1362 CONTRACTS. 1363 binding: contract by act's, declarations and conduct if of sufficient tenor and effect as to show a full understanding and agreement between the parties on the essential terras thereof. Hence it follows that acts, declarations and conduct subsequent to an incomplete understanding if clearly referable to a complete and mutual undei-standing between the parties, will constitute a ratification of a prior contract entered into between the parties "without full accord and agreement. So the jury is instructed that though there may not have been an entire mutual understanding between the parties in the be- ginning, still if the acts, declarations and conduct of the defend- ant shows that he ratified the contract in all the terms after they were fully understood by him, then you will be warranted in finding that a contract was entered into.^ 1 Phelps V. Pratt. 22r> A\. 8.5. 80 X. E. 69, 9 L. R. A. (X.S.) 945; Ander- son V. Anderson. 2.>1 111. 41o, 96 X. E. 265; Am. Ann. Cas. 1912 C. Sec. 1646. Consideration. You are instructed that whatever works a benefit to the party promising, or w^hatever works any loss or disadvantage to the person to whom the promise is made, is a sufficient considera- tion to support a contract. One promise is a good consideration for another promise. It is necessary that the consideration of a promise be of some value, but the law wall not enter into the question of the ade- quacy of the consideration, except where the inadequacy is so great as to raise the implication of fraud or imposition.^ 1 Judy i\ Louderman, 48 O. S. 562. Sec. 1647. Contracts express or implied. Contracts are either express or implied. In general, the only difference between an express and an implied contract is in the mode of proof. An express contract is proved by evidence of the express words used by the parties. An implied contract is established by proof of circumstances, showing that either in justice and honesty, a contract ought to be implied, or that the 1364 INSTRUCTIONS TO JURY. parties intended to contract. Whether the contract be estab- lished by eiridence direct or circumstantial, the legal conse- quences must be the same. The inference of an implied contract is eminently a prac- tical matter for the application of the sense and judgment of the jury, however, to be guided in that respect by our instruc- tions to you, and the evidence, viewed in the light of all the surrounding circumstances submitted to you, and keeping in mind the fact that the written contract must prevail as to all matters concerning which they speak, unless modified by the agreement of the parties made subject to their execution and delivery.^ 1 Voris, J., in Wilhelm v. Colohan, Summit Co. Com. Pleas. Sec. 1648. Contract made under duress or compulsion. "A contract made under compulsion may be avoided by the party by whom it was executed. Compulsion, however, to have that effect, must amount to what the law calls duress. Mere anger, or profane words, or strong, earnest language, can not constitute such compulsion as will amount to duress, or enable a party to be relieved from his contract. There may, however, be duress by threats. Duress by threats does not exist where a party has entered into a contract under the influence of the threat, or only where such threat may excite or reasonably excite, a fear of some grievous wrong, as bodily injury or unlaw- ful imprisonment."^ 1 Adams i\ Stringer, 78 Tnd. 180. Sec. 1649. Consideration — Exclusive right to patented inven- tion. The contract under which this suit is brought, in order to be binding, must be founded upon a sufficient consideration. We mean by consideration, the price, motive, or inducement that led the parties to enter the contract. The consideration for which the defendants say that they entered into the contract CONTRACTS. 1365 sot out in the petition was the sale and transfer by plaintiffs to them of the exclusive right to manufacttire and sell a patented invention of the plaintiff, which plaintiffs represented to be a new and useful attachment, and of great value for sewing machines, for converting reciprocating to rotary motion, for which plaintiffs had secured letters patent of the United States, and of whicli plaintiffs were the owners. If you find the plaintiffs' invention to be capable of being applied to some practical or beneficial use, and is not frivolous, without regard to the degree of utility, this would constitute a sufficient consideration to support the promise of defendants to pay the royalties stipulated for. But if you find that it is not capable of being applied to some practical or beneficial use, and is frivolous, and the attachment could not be sold to the unsuspecting public without committing a fraud, and for which there could be no practical markets where its merits were known, then the transfer of the right to manufacture and sell under said letters patent would not constitute a sufficient consideration to support said promises.^ 1 Voris, J., in Kremer r. Hitchcock, Summit County Common Pleas. A patented invention which is capable of being applied to some prac- tical or beneficial use, and is not frivolous or injurious to the well- being of society is valid without regard to the degree of its utility, and an interest therein constitutes a sufficient consideration for a promissory note or other contract. Tod r. Wick, 26 0. S. 370. Sec. 1650. Words applied to trade— "New dress" for paper- Construction for jury. Tt is a general rule, that in the construction of contracts language is to be given its plain, popular and ordinary signifi- cation ; you are to give to the language or the words used by the parties at the time of the making of the contract, their plain, popular and usual signification, unless it appears that the words have a peculiar meaning common to a certain trade or profession. Tf you find that the contract is as plaintiff claims, that the words "new dress," as used in this contract, have a peculiar meaning common only to the trade or profes- 1366 INSTRUCTIONS TO JURY. sion of publishing and printing a newspaper, you will give to these words that meaning in considering this contract, the mean- ing that is common to that trade or profession, that is, the trade or profession of publishing and printing a newspaper. You will ascertain the meaning that is to be given to the words from the testimony ; you are to look to the testimony and ascer- tain what peculiar significance these words have in that trade or profession, and in considering further, if you find the con- tract was made, you will give to these words the meaning as they are used in that profession or trade.^ 1 Gaumer v. Eiley, Supreme Court, unreported, Driggs, J. Sec. 1651. Implied contract to be found by jury. The jury is instructed that an implied contract is one which the jury may fairly infer, as a matter of fact, to be existent between parties, explanatory of the relation existing between them. Such implied contracts are not generally different from express contracts, the difference being simply in the mode of proof. Express contracts are proved by sho\^^ng that the terms were expressly agreed on by the parties, whilst in implied con- tracts the terms are inferred as a matter of fact from the facts and circumstances surrounding the parties, making it reason- able that a contract existed between them by tacit understanding. The jury will, therefore, look to the facts and circumstances disclosed by the evidence and determine whether the parties in this case entered into a contract, and if the evidence estab- lishes the fact that the parties understood that each sustained to the other a contractual relation, then the jury will be justified in determining that a contract was made.^ iKailway v. Gaffney, 65 0. S. 104. 114-15. Sec. 1652. Parol evidence to vary written instrument. It is well settled, as a general rule, that all parol — that is, verbal — negotiations between the parties to a written contract, such as a promissory note or other instrument anterior to, or CONTRACTS. 1367 contemporaneous with, the execution of the instrument, are to be regarded as either merged in it or concluded by it. Accord- ingly, parol evidence is incompetent to show terms or conditions at variance with, or in addition to, a written agreement which the parties agreed to verbally, prior to or at the time the con- tract was reduced to writing, but which were not inserted in the instrument. But to this general rule there are certain exceptions. Thus, parol evidence is admissible to prove that the written agreement, or promise, was without consideration, or what the consideration in fact was; and parol evidence is admissible to show that the writing was never intended to operate as an agreement at all ; that the writing was not accepted as the record of any contract.^ 1 E. P. Evans, J., in Lillie v. Bates, Sup. Court, No. 1636. See 3 O. C. C. 94, 26 0. S. 33. Sec. 1653, Latent ambigfuity in contract. The law is that when parties have reduced their agreement to writing that the terms and conditions of their contract shall govern and control their rights, and when the meaning and intent thereof can be ascertained and determined by the pro- A'isions of the contract itself and there is no ambiguity in its terms, then it is the duty of the court to determine the meaning. But in this case the full import and meaning of this contract can not be determined without the aid of extrinsic e^ddence outside and apart of the contract itself. There being what is termed in law a latent ambiguity in the contract, it becomes the duty of the court to submit the question of what the parties meant by their contract in the provision [here state the pro- vision, as — ] relating to thorouglily overhauling the cars and delivering them in good condition, as well as to determine whether the defendants did or did not comply with tJu^r con- tract. The jury must therefore detenninc wli;i1 the contract under all the circumstances meant. It will be your duty to take into 1368 INSTRUCTIONS TO JURY. consideration all the facts and circumstances at the time the contract was made, as well as all that was said and done by the parties throughout the entire transaction, that is from the beginning of the negotiations, from the facts and circumstances and conversations when the contract was made, and the acts throughout the transaction. You should also consider the purpose and intent of the parties at the time they made the contract for the sale and exchange of the property, the uses and purposes, which each of the parties intended to make of the property, the nature and condition of the cars when they were sold, and when delivered; whether they were or were not thoroughly overhauled and delivered to plaintiff in good condition as contemplated by the contract made by the parties.^ 1 Cincinnati Equipment Co. r. KaufTman. Fr. Co. Com. Pleas, Kinkead, J. Sec. 1654. Latent ambiguity in oral contract. Gentlemen of the jury, this cause of action being founded upon an oral contract, claimed to rest upon the language of the witnesses to the effect that the decedent agreed that if plaintiff would take care of him the remainder of his life, he would pay her well, being what is termed in law latently ambiguous, the latency of the contract not appearing upon its face, that is, you Avill have to look to the surrounding circumstances in order to determine the meaning, it is, therefore, tlie province of the jury to interpret its meaning in the light of all the surrounding cir- cumstances and fact's, as well as by the conduct of the parties, and the declarations of either of them, if any have been made, as well as by the general course of dealings between the plaintiff and the decedent. You may or you may not consider the mode of living under the circumstances which the evidence shows that these parties lived, where they lived, and the kind of service that would be contemplated and furnished under such circum- stances and conditions and in the place where the parties lived.^ 1 Cornwell t\ Agler, as administrator, etc., Franklin Co. Com. Pleas., Kinkead, J. CONTRACTS. 1369 Sec. 1655. Defense of illegality of contract. '"If the jury shall ±ind Iruin the testiiuony that, on or about the time stated in the petition, the defendant received from the plaintilf a certain sum of money under an arrangement that the same should be invested by the defendant in wheat transactions, illegal in their character, for the benefit of the plaintiff; that said money was so invested by the defendant, and a profit real- ized thereon; and that before the commencement of this action said sum of money and the profits so made came into and are still in the hands of the defendant ; or that he received credit therefor in the final settlement of his accounts with the brokers through whom said business was transacted, then the plaintiff is entitled to recover said money from the defendant ; nor, in such case, can the defendant avoid his liability to account for said moneys by showing that', by the understanding between the plaintiff and himself, said money was to be employed in illegal transactions in wheat, of the nature stated in his answer, and that said money was employed, and said profits realized in such transactions."^ 1 Xorton i\ Blinn, 30 0. S. 145. Sec. 1656. Meaning of contract to construct and finish a thing of the "finest quality," for the jury when. Ordinarily the construction of a contract is for the court, but where words in a contract may have a particular meaning attached to them according to the trade which may be concerned, or referred to in the contract, and where the meaning may vary according to the extrinsic facts and circumstances, — that is the facts and circumstances outside of the contract and those relat- ing to the subject matter of the contract, then it is for the jury to determine what the meaning of the contract is. The contract here is that the plaintiff undertook to construct and erect a granite monument wliicli was to be executed in tlie best of workmansliip, from tlie finest quality of the above-named material. Quality is a term employed as denoting grade, in- 1370 INSTRUCTIONS TO JURY. gredieats or properties of an article. It indicates generally the merit or excellence of the article/ Now you are to determine in the light of all circumstances, and in the light of what qual- ity is used for this purpose, that is the construction of a monu- ment, what the finest quality of granite means. You may take into consideration also the fact, if you find it to be a fact, that the parties examined and saw samples of the quality to be used. I think I need say nothing further with reference to the testi- mony, but it is a matter entirely within your province to deter- mine what the contract was, and whether or not the contract has been performed according to its terms and conditions. It is incumbent upon the plaintiff, to make out his case, to show that he has performed all of the obligations on his part to be performed. That is, it must appear by the preponderance of the evidence that he has furnished the kind of monument which the contract, as you will find it to be and mean, required of him. If he has established that by a preponderance of the evidence, then he is entitled to recover the amount claimed in his petition. 2 1 Quality means "essential property ; characteristic ; degree of goodness ; capacity." Quality is a terra employed as denoting the grade, in- gredients, or properties of an article. It indicates generally the merit or excellence of the article. State i\ Martin, 66 Ark. 343, 28 L. R. A. 153; Dennison Mfg. Co. v. Mfg. Co., 94 Fed. 651, 657. 2Haynes v. Kost, Franklin Co. Com. Pleas, Kinkead, J. Sec. 1657. Action for breach of covenant of lease — For failure to repair, maintain and surrender premises — "Reasonable use" — "Reasonable wear." The claim of the plaintiff is based on an alleged failure of defendants to repair, maintain and surrender the plant, premises and property described in the petition in the condition pro- vided for in the contract of lease, sued on ; and to erect, main- tain in good condition and so surrender certain other property therein provided for. The covenant of lease introduced in evidence, on v/hich the recovery, if any, must be had, provides : CONTRACTS, 1371 1. That the second party a^eed to take the property demised in its then present condition and at its own expense to place the said furnaces, blowing engines, hot-blast stoves, fittings, buildings and appurtenances, the reservoir and railway tracks in good working order and repair and so maintain them during the term of the lease and at the expiration of said term or other determination of the lease to quit and surrender the premises demised in as good state and condition as reasonable use and wear thereof would permit, and that all losses by fire during the continuance of the lease should be repaired and made good by the party of the second part. 2. That said second party would furnish and erect at its own expense new boilers, hoisting engine, two pumps, hot-blast stove, and all buildings, machinery and appurtenances which might be necessary for the proper and economical running of the iron- making plant, all which were to be maintained in good condi- tion during the term of the lease and so surrendered at its ex- piration or other determination thereof, except the hoisting engine and two pumps, which the said party was at liberty to remove. The instrument sued on in this case was not executed agree- ably to the provision of the statutes of this state, in that the acknowledgment of same was not certified on the same sheet on which the instrument is written or printed. But it is not in dispute that the second party thereto entered thereunder, used and occupied said plant and premises to . Where tenants enter under a lease which is invalid by reason of said statute or otherwise, their tenancy is nevertheless sub- ject to the covenants relative to repair, maintenance, erection and surrender on the part of lessee in such an instrument. And when the lessee has entered under the lease and occupied and enioycd the premises, he is estopped to repudiate the lease on the ground of invalidity. I charge you that notwithstanding the irregular manner of the execution of the lease in question as to its acknowledgment, nevertheless, the second party thereto is bound by the stipula- 1372 INSTRUCTIONS TO JURY. tion of the lease relative to the repair, maintenance, erection and surrender of the premises therein described; entry and possession having been had according to the terms of the instru- ment. By stipulation of the lease, it was the duty of the second party thereto, at its own expense, to place the property described in the first covenant mentioned, in good working order and repair, and so to maintain same during the term of the lease and at its expiration to surrender same in as good state and condition as reasonable use and wear thereof would permit. The court has heretofore charged you, prior to the arguments of counsel, as to the liability of defendants in case you find they did not place the property specified and described in said first covenant mentioned or any of it in good working order and repair; or did not so maintain same or any of it until , and thereupon so surrender same in as good state and condition as reasonable use and wear thereof would permit. In that connection, if you find from the evidence that the said defendants or any of them, placed the property in the said first covenant alleged, in good working order and repair and so maintained same during the lease, and surrendered the same in as good state and condition as reasonable use and wear thereof w^ould permit, then defendants are not liable in that behalf. "Reasonable use" is that which does not unreasonably pre- judice the rights of others. "Reasonable wear" means such decay or depreciation in value of the property as may arise from ordinary and reasonable use. In determining what is reasonable use and wear referred to in the lease introduced in evidence, you will look to the sur- rounding circumstances in connection with the making of said lease, the use for which the plant and premises were leased, and all the circumstances connected therewith and known to the parties ^as revealed by the evidence. By stipulation of the lease in question, the second party thereto was bound at its own expense to furnish and erect new boilers, a hot-blast stove, and all buildings, machinery and ap- CONTRACTS. 1373 purtenances which might be necessary for the proper and eco- nomical running of the iron-making plant, which were to be maintained in good condition during the term of the lease and so surrendered at its expiration. It is the claim of the plaintiff that in violation of the second covenant of the lease alleged, that the hot-blast stove agreed to be erected by defendants, was not there at the surrender of the lease ; that the electric light plant had been removed ; that the boilers were worthless ; that certain machinery fittings and appurtenances, including a large number of bosh plates, coolers, tuyeres, cinder coolers, monkeys, pipes and fittings, furnished by defendants in partial compliance with their covenant, had been torn out and removed. The court charges you that the furnishing and erecting of the hot-blast stove, stipulated for in the covenant just mentioned, did not depend upon what might be necessary for the proper and economical running of the iron plant. The agreement to furnish and erect said stove was unconditional, and in any event the plaintiff is entitled to recover the cost of erecting such hot- blast stove on the leased premises on , if you find it was not erected by defendant. The agreement to furnish new boil- ers is likewise unconditional. Wliere one does not specify the time within which the lessee is to make improvements, he has the whole term within which to make them ; and the measure of damages for a breach of the tenant's agreement to erect improvements to be made during the term, is the cost of making them. Following the stipulation for the new boilers and hot-blast stove in the covenant just men- tioned, the agreement to furnish and erect "l)uil(lings, ma- chinery and appurtenances" therein mentioned, is conditional upon their being necessary for the proper and economical run- ning of the iron-making plant; but not so as to the hot-blast stove and new boilers as hereinbefore charged. Appurtenances are things belonging to another thing as prin- cipal and which pass as incident to the pnncipal thing. "Wlif'ther or not the electric light plant, tlie bosh plates, cool- ers, tuyeres, cinder coolers, monkeys, pipes and fittings in ques- 1374 INSTRUCTIONS TO JURY. tion were included in the machinery and appurtenances, and were necessary for the proper and economical running of the iron plant, is for you to determine from all the evidence bearing on that matter. The court has heretofore, prior to the arguments of counsel, charged you as to the liability of defendants in case you find the defendants did furnish and erect new boilers, and failed to maintain and surrender same in good condition, or boilers which, were not new when erected, and not placed in good condition at surrender, if you so find ; and in case defendants furnished any buildings, machinery or appurtenances which were necessary for the proper and economical running of the iron plant and did not maintain them in good condition until , 19 — , or did not then surrender up same in good condition. In that connection, if you find from the evidence that said defendants furnished and erected new boilers, as stipulated for in said second covenant of the lease contract, and all buildings, machinery and appurtenances necessary for the proper and econ- omical running of the iron-making plant, and maintained same in good condition during the term of the lease, and so surrendered same at the termination of the lease of , 1905, then defend- ants are not liable for damage for the property so erected, maintained in good condition and so surrendered on , 19 — } 1 Ohio Mining & Mfg. Co. r. Miller, Franklin Co. Com. PI., Rathmell, J. Affirmed bv circuit court. CHAPTER LXXXVin. CONTRACTS— FOR PERSONAL SERVICES. 8BC. 1658. Action on contract for sup- port of parent. 1659. Contract to perform services by one taken into fam- ily when a child must be shown. 1660. Services of child for parent — Capacity of parent to make contract — Child as member of family. 1661. Contract of service made by correspondence. 1662.. Contracts, express or implied — Proof of. 1663. Contract for services when implied. 1664. When the relation is that of brother or sister, or par- ent and child, burden upon one claiming rela- tion of contract of serv- ice to prove it, and to rebut presumption that it was gratuitous. SEC. 1665. Service rendered by grand- child to grandparent. 1. Request to perform serv- ice — Implied from cir- cumstances. 2. Circumstances negativing p r o m i s e — Gratuitous service — Relation of child and parent. 1666. Contract for services be- tween employee and cor- poration. 1667. Action for services by wife against executor of de- ceased father-in-law. 1. When parent resides with child — Services by for- mer presumed gratuitous. 2. Husband entitled to per- sonal service of wife. 3. Contract must be shown to warrant recovery. 4. Whether services gratu- itous. 5. Estoppel to claim com- pensation for services. Sec. 1658. Action on contract for support of parent. While a child may be morally bound to care for, support, and maintain a mother, who, through the long and weary nights or day.s has nursed tlie child during its infancy and childliood, yet no such legal obligation rests upon him. In other words, a child is not hound to support and maintain a parent in his old and declining: cl':"s. 1375 1376 INSTRUCTIONS TO JURY. Therefore, primarily, neither S. W. nor his wife, M. W., was bound to support, maintain, and care for this old lady in her declining years ; primarily, M. C. was bound to pay the plaintiff in this case for the services rendered to her during her declining years, and there can be no recovery in this case against the defendant, unless the jury find by a preponderance of the evidence that the defendant, W. C, did promise to pay the plaintiff for the care, sustenance, nursing and support of ^l. C, and that by reason of this promise made by the defendant, W. C, he, the plaintiff, did care for, nurse, support and maintain M. C. If the jury find from the evidence that the defendant did promise to pay for the support, maintenance, and care of this old lady, and that by reason of that promise he, the plaintiff, did support, maintain, nurse, and care for her, your verdict will be for the plaintiff, as to this issue ; but if the evidence fails to show that the defendant did promise to pay, for the support, care, nursing and maintenance of this old lady, and that in pur- suance of that promise, he did perform those services, your verdict must be for the defendant, and your duties will then be at an end. No particular form of words is necessary to constitute a valid and binding contract ; if a promise is made upon one side, and entered upon and acted upon by the other, this will be sufficient to make it a binding contract. In other words, it is not necessary in making a promise to pay for a particular service that a certain form of words of accep- tance of a proposition should be used; it is enough if one has made a promise that the other shall enter upon and perform the services for which the promise to pay is made. In such case, if the minds of the two parties actually come together at the time the promise was made, and the services were performed in con- sideration of that promise, this will be sufficient to make it a good, binding and valid contract. If, therefore, you find that this promise was made by W. C, and that S. W. accepted it, and that he performed the servici>s, CONTRACTS FOR PERSONAL SERVICE. 1377 or that they were performed by his wife and children (under the restrictions that J shall hereafter speak of), and that he has not been paid for them, the plaintiff would be entitled to recover the reasonable and fair value of the services so performed by him, his wife, or his daughter, and for the value of the board and clothing and medical attendance that was furnished by him.^ 1 Campbell v. Woodward, Sup. Ct. No. 2834. Judgments affirmed. Joseph W. O'Neall, J. Sec. 1659. Contract to perform services by one taken into family when a child must be shown. The jury is instructed that one who is received in infancy as a child, into a family not of kin to her, and remains in the liousehold after her majority, must, in order to recover for her services rendered such family after her majority, show either an express contract, or circumstances from which a contract to com- pensate her for such services may be implied.^ 1 Howard i\ Randolph, 134 Ga. GDI. 29 L. R. A. 294. Sec. 1660. Services of child lor parent — Capacity of parent to make contract — Child as member of family. It is claimed by plaintiff that he had been away from his father's home, doing for himself and family for about twenty- t'AO years, for twelve years of which time, prior to the attack of paralysis, by which his father was afflicted, residing in the State of Michigan, and that upon the occurrence of the attack he was telegraphed to, and at the instance and request of his father that he immediately came to his father's house, and fit the instance and request of his father, he l)eing then helplc^ss and wholly unable to get up or walk, or to lielp himself, or to attend to the wants of nature, and tliat during the space of seven hundred and ninety-six days, ])etween tlie and the , tliat lie nurs(>d and eared for liis said father liy handling, lifting and nursing and caring for him day and night during all that time, for which services he claims judgment. 1378 INSTRUCTIONS TO JURY. To the claim of plaintiff thus set forth the defendant says that whatever services the plaintiff rendered in taking care of and nursing his father, were done and performed by him as a son and member of his family, and without any promise of payment by his father, and without any expectations of pay- ment for said services. 1. Right of son remaining in his father's house to recover for his services. (On the issue thus presented the rule is that where a son, during his minority, or even after his arrival of age, re- mains in his father's house, as a member of his father's family, and performs labor for his father without a promise of payment for the same by his father, that there can be no recovery. In other words, that unless there is a promise of payment by the father, and an expectation of payment by the son, there can be no recovery for services rendered by a son for his father, even after ke becomes of age, while living with his father as a member of the family.) ^ In this case it is claimed by plaintiff that the above rule does not apply, for the reason that the plaintiff was away from his father's home twenty-two years, taking care of himself, and further that by reason of the imbecility of mind of his father, and his helpless physical condition, that he was compelled, of necessity, to perform for his father the services that he rendered, and that in such case the law implies a contract that he should be paid for his services. You will look at all the testimony offered on this question for the purpose of determining in what manner the plaintiff lived there during his father's illness. Did plaintiff, at the time he rendered these services, render them as a gratuity and a member of his father's family? If he did, then there can be no recovery. 2. Capacity to make contract. If you find that J. N. was mentally incapable of making a contract for services for his care and nursing, and that such services were rendered by plaintiff, and that the same were necessary, and that, while .so rendering them, plaintiff expected payment for the same, he would be entitled to receive payment unless you find from the testimony that plaintiff was, during the time the services were being CONTRACTS FOR PERSONAL SERVICE. 1379 rendered, a member of his father's family, treated in every respect by the family by being furnished with clothing, spending- money. and everything as a member of his father's family the same as was furnished to the other members of the family, and that he was so regarded and treated by the family, and that he so acted and demeaned himself and acted as a member of said family. But in such case, the plaintiff having been absent for a great many years, doing for himself, the burden is on the defend- ant to prove that he became, while there waiting on his father, a member of his father's family. For this purpose you may look to the manner in which he, the plaintiff, and the other members of the family all lived together and acted towards each other.- 1 "It is well settled in Ohio tliat a child residing with his father as a member of the family is not entitled to recover for work and labor performed, or services rendered in the absence of an express agree- ment to pay therefor, or its equivalent." Wright, 89 and 134; Pollock V. Pollock, 2 O. C. C. 143; Hawthorne v. McClure, 4 O. C. C. 13. In Ulrich v. Ulrich, 136 N. Y. 120, it was held that as matter of law no presumption that the services were gratuitous arises. 2 From Nesbitt r. Knoop, supreme court, unreported. In Reando v. Mosplay, 59 Am. Rep. 15 (Mo.), services were rendered for an insane parent. The court said that an implied contract might arise between an insane person and one furnishing necessaries, and fur- ther charged that: "If you believe and find from the evidence in this case that plaintiff rendered the services sued for as acts of gratuitous kindness to her mother, and as a member of the family, with no intention of charging her for the same, then you must find the issues for the defendant, and in such case it makes no difference how meritorious and how valuable her service to her mother may have been." There is no controversy over the doctrine that where a child, though over age, continues to reside with his parent after becoming of age, and is treated as a member of the family, so long as that relation exists the law implies no promise to pay. "Miller r. Miller, 16 111. 296; Hart v. Hess, 41 Mo. 441; Wells v. Perkins, 43 Wis. 160; Adams v. Adams. 23 Tnd. .^O; Smith v. Smith, 30 N. J. Eq. 564; Wright's Rep. 89, 133, 547, 751. Under such circumstances to entitle the child to recover, he must prove, by preponderance of evidence, an express hiring, or promise to pay, or circumstances from which a hiring or promise may be reasonably inferred. Steel V. Steel, 12 Pa. St. 04; Hiblish v. TTiblish, 71 Ind. 27. Again the doctrine that a lunatic (or imbecile) or his estate is liable for 1380 INSTRUCTIONS TO JURY. necessaries supplied to them can not be denied. 5 Lawson's R. & K., sec. 2390, and numerous cases cited. See, also, Sawyer v. Leufllin, 56 Me. 308; Reano v. Mosplay, 90 Me. 251; Blarsdale v. Holmes, 48 Vt. 492; Richardson v. Strong, 55 Am. St. 430; Jackson v. King, 15 Am. Dec. and notes on p. 368; Ex parte Northington, 79 Am. Dec. p. 67, and notes on p, 68; Young v. Stephens, 97 Am. Dec. 592. An express promise to pay must, however, be shown where the par- ties live together as members of the same family, or facts from which the same may be inferred. In re Perry's Estate, 25 N. Y. S. 716. Circumstances may be so varied that in some cases the implied promise may arise, while in others not. Sec. 1661. Contract of service made by correspondence. If you find from the evidence that previous to that plain- tiif and defendant had correspondence by mail, and that defend- ant, in a letter to and received by plaintiff, proposed to hire plaintiff to labor for him for a year at a stated price, and that plaintiff, in a letter written to and received by defendant, ac- cepted said proposal without condition or reserve, then such a letter would constitute in law a written contract between plain- tiff and defendant to labor for one year. In construing the letters, the whole correspondence, promises and inducements held out should be considered, the subject- matter and the parties, and from the whole a reasonable con- clusion be deduced ; and where one party is old, able, adroit in the use of language and promises, and the other young and inexperienced in the use of language, and a minor, a court will not strain the rules of construction against such minor, and in favor of the older, experienced one, especially where such con- struction would result in cross injustice to the minor.^ 1 Easthope v. Fordyce, Supreme Court, unreported, No. 2010. Affirmed. Sec. 1662. Contracts, express or implied — Proof of. Contracts are either express or implied. In general, the only difference between an express and an implied contract is the mode of proof. An express contract is proved by evidence of the express words used by the parties. An implied contract is established by proof of circumstances showing either that in CONTRACTS FOR PERSONAL, SliRVICE. 1381 justice and honesty a contract ought to be implied, or that the parties intended a contract. Whether the contract be established by evidence, direct or circumstantial, the legal consequences must be tlie same. Sec. 1663. Contract for services when implied. The law usually iiuplies that, where services are accepted or other valuable thing is received, the party accepting has agreed to pay for them. This, however, is a mere presumption that varies with the circumstances, and when services are rendered by one member of the family to another, this presumption does not hold, in which case the parties must resort to evidence to establish the presumption of an obligation to pay therefor; but this presumption is one that varies with the circumstances and is to be determined by the understanding either express or implied between the parties as developed by the evidence sub- mitted to you. But the mere fact that plaintiff rendered such services to a sister in and of itself does not raise the presumption of an implied contract to pay. If you find by a preponderance of the evidence that no contract, either express or implied, was entered into between the decedent and plaintiff, this would end the case, and your verdict should be for the defendant.^ 1 Voris, J., in Fairbanks v. Otis, Summit County Common Pleas. Sec. 1664. When the relation is that of brother, or sister or parent and child, burden upon one claiming- relation of contract of service to prove it, and to rebut presumption that it was gTatuitous. The rule is well settled that where the relation of parent and child, or brother and sister exists, the law will not presume any other, that is, the law will not presume that of debtor and credi- tor. In order to establisli the inferior relation of debtor and creditor between a parent and child, or brother and sister, there must be proof more or less strong, but sufficient to carry con- viction, that the parties understood the inferior relation, to-wit: 1382 INSTRUCTIONS TO JURY. that tlie parties contracting to subsist between them at the time an agreement in reference to it is entered into. If you should find that the decedent promised to pay the plaintifjf for the services, you may presume that a contract was entered into to perform the services. To enable the plaintiff to recover, a preponderance of the evidence must show a promise to pay, or that the decedent expected to pay for the services, or that the decedent could not, in justice or good conscience, receive the same and not pay therefor what they were reasonably worth, and that the plaintiff expected to receive compensation for his services. The jury is instructed that there must be evidence to rebut the presumption that what was done by the plaintiff for her sister was gratuitously given and received, so that if you find from the evidence that the services were gratuitously given, as an act of sisterly duty and affection merely, and no request and no promise to pay, or that the circumstances accounted for her conduct on grounds more probable than that of the promise of recompense, no presumption of a contract mil be implied. But if you find that the circumstances were such as required extra- ordinary and continuous servicCvS of substantial value, the pre- sumption that the services were gratuitously rendered to a sister would not necessarily obtain, and we leave it for you to say, under all the circumstances provided, whether the serxdces and the items of the account rendered were intended to be gratuitously given. If gratuitous, you should find for the defendant : if not, you should find for the plaintiff.* iVoris, J., in Fairbanks p. Otis. Summit Connty Common Ploas. Sec. 1665. Service rendered by grandchild to grandparent. 1. Bequest to perform service — Implied from, circumstances. 2. Circumstances negativing promise — Gratuitous services — Relation of child and parent. 3. Presumption that services hy child for parent during sick- ness ivhile living in same honsehold is gratuitous. 1. Bequest to perform services — Implied from circumstances — General doctrine. The plaintiff alleges in her petition that CONTRACTS FOR PERSONAL, SERVICE. 1383 these sen-ices \vere performed at A. S. 's request. Such request, gentlemen, need not be proven by direct and positive evidence; a request to perform services may be implied from facts aaid circumstances proved on the trial of a case. If a man accepts valuable services from another, and receives the benefit of them, the law implies a request upon the part of the person receiving such services for the other to perform the same. And in this case, gentlemen, you would be warranted in implying a request upon the part of A. S. for the plaintiff to perform the ser\ices that she did perform. It is admitted here that the services were performed, and it is admitted they were of value, and from these facts the law will warrant you in implying a request upon the part of S. for the plaintiff, Mrs. C, to perform these services. But to go further, was there an implication ? Does the law imply a promise from the facts and circumstances proved on the trial of this case on the part of S. to pay their reasonable value? Ordinarily where there is a request to perform valuable services, and when they are performed in pursuance of such request, the law will imply a promise upon the part of the person receiving the benefit of such services — a promise to pay their reasonable value — unless there has been something shown — some facts and circum- stances shown — that negative any implied promise upon the part of the person receiving the services to pay their reasonable value. 2. Circumstances negativing promise — Gratuitous services — Relation of child and parent. In this case it is claimed that there are circumstances surrounding the performance of these services that negative any implication upon the part of S. to pay for the same. It is claimed that the plaintiff here entered the family of A. S. when she was about eleven or twelve years of age; that she continued to reside in his family as a member of the same, performing the services claimed in the petition np to and including her twenty-fourth year. It is claimed that during the time she was in this family she was not only a member of it, l)ut was' treated as a menxber of the family, and that her boarding, 1384: INSTBUCTIONS TO JURY. clothing, and lodging were furnished her by A. S. It is admitted that the plaintiff was the granddaughter of defendant's testate, A. S. It is claimed here by the defendant that these circum- stances negative any implied promise upon the part of A. S. to pay for the same. Services performed at the request of another, while they may be valuable, and while they may be beneficial to the person who receives them, may be performed under such circumstances as that the law will imply that they were gratuitously performed ; that the law will imply that the party who performed them never intended to make any charge for the same, or never expected any compensation for the same. 3. Presumption that services hy child for parent during sick- ness while living in same household is gratuitous. Where a person sustaining the relation of a child to a parent performs valuable services, and during the time of the performance of the same is a member of the familj^, receiving his board, his clothing, his lodging, and his nursing, if he became sick during that time, the law presumes that such services were gratuitously performed, and that there was no expectation upon the part of the person performing the same that the person for whom they were performed would pay him. The law presumes under such circumstances that such services were gratuitous, with no expectation of receiving any compensation therefor. To sustain the contention of the plaintiff in this case, the evi- dence must sustain the claim that the ser^dces were not rendered under the ordinary relation of parent to a child, or parent to a grandchild, or debtor to a creditor, or master and servant. You must look to all the evidence in determining the question. "Was this girl a member of that family? Was she treated as a member of that family ? Was she treated as the other daughter was treated? Was she provided for as the other daughter? Was she provided for as the daughter of a man in the circum- stances of A. S. — in the circumstances in which he then was — usually provides for his daughter? Was what she needed and what was necessary for her condition and station in life pro- vided for her by A. S. during the period she claims to have performed these services? CONTRACTS FOR PERSONAL. SERVICE. 1385 You are to determine this question from the evidence, and from the evidence alone. If you shall find from the evidence that she entered this family as a member of it, and was treated in all respects as a member of the family — as a daughter; if S. provided for her clothing, board, lodging, nursing, and medi- cine, if it was required, then in that case the law raises the pre- sumption that these sendees were gratuitously performed. But if, upon the other hand, you find in this case that she was not a member of the family; that she was not treated as a member of his family, and S. did not furnish her with what would be necessary, if a member of the family in that behalf, then, in that case, the law raises no presumption that these services were performed gratuitoush^ And if they were per- formed at the request of A. S., then, in that case, the law im- plies a promise upon the part of S. to pay their reasonable value. And even if you shall find that this plaintiff went into this family and resided there as a member of the same, being treated as such, and being provided with clothing, food, lodging, nurs- ing, and medicine, and everything that was necessary, yet in this case you find that A. S. expressly promised to pay her a reasonable value for her services, then, in that case, she had a valid and subsisting claim at law against defendant's testate.^ 1 John B. Drijjgs, Judge, in W. X. Rtilwell r. Cowans, Belmont County, S. C. .3785. Settled while in Supreme Court. Affirmed by Circuit Court. Sec. 1666. Contract for services between employee and corpo- ration. To entitle the plaintiff to recover, there must have been a con- tract ])etwoon him and the defendant, through its agent, express or implied, for his services as flagman. ]. Contract express or implied. An express contract is proved by evidence of the express words of the parties, or authorized agents for the purpose. An implied contract is e;stablished by proof of eiroumstances showing that eithor in justice or honesty a contract ought to be implied, or that thi" parties intended to 1386 INSTRUCTIONS TO JURY. contract, and whether the contract be established by evidence direct or circumstantial, the legal consequences resulting from the breach of it must be the same. The defendant being a corporation, only acts through its agents duly authorized. If the plaintiff performed the serv- ices of the flagman at the defendant 's request, or with its knowl- edge and consent, and the latter voluntarily took the benefit of such labor, then the law presumes that he will be paid for his labor, unless the contrary is shown by the evidence. And if no special contract is proved, fixing the price, then he is entitled to have what his services are reasonably worth. And if you find these facts by a preponderance of the evidence under the rules given, your verdict should be for the plaintiff; otherwise for the defendant. Sec. 1667. Action for services by wife against executor of de- ceased father-in-law. 1. When parent resides tvith child, services hy former pre- sumed gratuitous. 2. Hushand entitled to personal service of wife. 3. Contract must he shown to ivarrant recovery. 4. Whether services gratuitous. 5. Estoppel to claim compensation for services. 1. When parent resides ivith child, services hy former pre- sumed gratuitous. Wliere a parent resides in the family of a child the presumption is that no payment is expected for serv- ices rendered by one to the other. This presumption is not con- clusive, and may be overcome by proof of a contract to pay for such services. Such a contract may be proved by direct or indirect evidence, but in suits for compensation for services where a family relation is conceded or shown to exist, an actual con- tract must be proved as the basis of recovery therefor. 2. Hushand entitled to personal service of wife. The husband is entitled to the personal services of the wife, and to any com- pensation owing for such services, unless she was doing business independent of her husband or with an understanding and an r CONTRACTS — FOB PERSONAL SERVICE. 1387 agreement with him that she was to receive and have as her own the compensation for such services rendered. 3. Contract must he shoion. to warrant recovery. The plaintiff in this case can not recover unless she prove by a preponderance of the evidence that there was a contract upon her part to per- form the ser\aces of nursing and caring for J. S. K. for com- pensation and upon his side to accept the services and pay her for them, and that the husband of the plaintiff consented thereto. If the plaintiff fails to prove to you by a preponderance of the evidence that such a contract was entered into between her and J. D. K. whereby he was to pay her for services or nursing and care, if any be rendered, and that her husband consented to the same, then defendants are entitled to your verdict. If you find from the evidence that a contract was entered into bet'\\^een J. D. K. and plaintiff whereby plaintiff was to perform services of nursing and care for him, and upon his part he was to accept same and pay for them, and that plaintiff's husband consented thereto, and that in pursuance thereof the plaintiff rendered him services of nursing and care during the period claimed, then the plaintiff is entitled to recover the reasonable and fair value of such services unless you find that the defendants have proved the defense of settlement and payment for the serv- ices set forth and alleged in their second defense of their answer. 4. Whether services gratuitous. It is the claim of defendants that if plaintiff rendered any services whatever to J. D. K., she rendered them gratuitously and as a member of liis family; and they further claim that on , said J. D. K. settled with and paid L. K. in full of all demands to that date, including any and all services that had been rendered to J. D. K. Iiy way of care or nursing prior to said date, and that no services whatever were rendered to him thereafter by plaintiff or her luisband. There can be no recovery for services rendered voluntarily or gratuitously where a family relation exists in the absence of a contract that they were to be compensated. A family is defined as a collective body of persons who fonn one household under one head and one domestic government. 1388 INSTRUCTIONS TO JURY. If you find from the evidence that plaintiff, her husband and J. D. K. lived together as a family and that the plaintiff nursed and cared for her father-in-law gratuitously, that there was no contract between plaintiff and J. D. K., that such services were not to be compensated, then plaintiff is not entitled to recover therefor, and your verdict in such case should be for defendants. 5. Estoppel to claim compensation for services. Where one person by his acts and with knowledge induces another to believe certain facts to exist and such other person rightfully acts on the belief so induced, and is misled thereby, the former is estopped to afterwards set up a claim based upon facts inconsistent with the facts so relied upon to the injury of the person so misled. Estoppel may arise from silence as well as words, but this is only where there is a duty to speak, and the party upon whom the duty rests has an opportunity to speak, and knowing the circum- stances requiring him to speak, keeps silent. If you find from the evidence that a contract was entered into between plaintiff and J. D. K. whereby he was to compensate her for her ser\dees of nursing and caring for him, and that this was with the knowledge of L. K., husband of plaintiff, and that she rendered such services during the period claimed for in the petition ; and you further find that on , that J. D. K. was about to leave his son's residence and make his home elsewhere and stated that he wanted to pay all his bills that he owed there, and that in the presence of the plaintiff and her husband, he settled with and paid L. K., his son, for all care and nursing that had been rendered him up to that date, and that no services were rendered him by plaintiff after that date, and that plaintiff knew that J. D. K. was settling and paying in full for services ren- dered by her up to that date, and that so knowing kept silent and did not assert, her claim, and that thereby .J. D. K. was misled to believe that she assented thereto, under such circumstances, she will be held to have acquiesced or assented to such payment of her claim, and is not entitled to recover in this ease, — and so finding, your verdict should be for the defendants. ^ iKinnaird r. Kinnaird & Wagner, Exrs., etc. Court of Common Pleaa, Franklin Co., O., Rathmell, J. CHAPTER LXXXIX. DAMAGES— IN PERSONAL INJURY. (See Death by Wrongful Act.) 1668. Measure of damages in per- physician as affecting sonal injury — Medical at- damages. tendance. 1672. Damages recoverable by hus- 1669. Same — A briefer form. band for injury to wife. 1670. Damages for injury to minor 1073. Measure of damages where in suit by next friend. special defense made on 1671. Duty of injured to care for account of physical con- himself — Employment of dition of plaintiff. Sec. 1668. Measure of damages in personal injury — ^Medical attendance. If yoii find that the piaintif! is entitled to recover, your ver- dict should be in his favor; and it should be in such an amount as will fully compensate him for the injuries which he has actu- ally sustained, directly resulting from the negligence and want of care on the part of the defendant. This compensation would include the pain that he has already suffered, as well as the pain he vnW continue to suffer, if his injuries are of such a character as to cause him pain in the future. The time that he has actu- ally lost by reason of his injuries, and the loss that may accrue to him by reason of his diminished capacity to earn money in the future, if you find his injuries are such as to diminish his capacity to earn money in the future. In addition to this he would bo entitled to recover, if yon find in his favor, for expenses actually and necessarily incurred by him in this case by wny of medical attendance and nursing, and which have been proven to have been thus expended; and you may also take into consideration any further expense which will 1389 1390 INSTRUCTIONS TO JURY. naturally and necessarily be incurred by him by reason of his injuries, if you find that his injuries are of such a character as to require such expenses and outlay upon his part. You may also take into consideration the length of time that has elapsed from the time that the plaintiff received his injuries until the present, not as interest, nor by way of interest, but simply as a part of the compensation to which the plaintiff would be entitled in order to make him whole, if you find he is entitled to recover.^ 1 From P. & L. E. R. R. Co. v. Munich, supreme court, unreported. Sec. 1669. Same — Another briefer form. If you find that the defendant is liable, you will award to the plaintiff such sum as damages as will fairly and justly com- pensate him for the injury ; the measure of his damages is com- pensation and only compensation. You will take into considera- tion the nature of the injury, the extent of it, the pain which he has suffered, all the expenses which he has necessarily been put to in consequence of the injury. You will consider the effect of the injury, the permanency of it ; the effect of the injury upon his bodily strength and upon his capacity to labor and earn a living, and all the circumstances, calmly and deliberately, and apply your judgment to the evidence in the case. If you find in favor of the plaintiff, as I have said, you will award him such damages as will fairly and justly compensate him for the injury. Sec. 1670. Damages for injury to minor in suit by next friend. But the father is entitled to the services and earnings of hir, minor son, until he becomes t'wenty-one years of age, and may bring an action in his own name against the defendant to recover such damages as he may have sustained in consequence of its alleged negligence ; and therefore you can not allow the plaintiff (a next friend) any damages for any of his time that has been lost, or which may be lost in consequence of said injury before he reaches the age of twenty-one years.* 1 Evans, Judge, in Cent. Nat. Gas & Fuel Co. v. Baker. DAMAGES IN PERSONAL INJURY. 1391 Sec. 1671. Duty of injured person to care for himself — Em- plojnnent of physician as affecting damages. "If the plaintiff is entitled to recover any damages, he is entitled to recover an amount sufficient to compensate him for the injury which he has actually sustained, so far as the damages to him naturally and directly tlowed from and were caused hy his wounds, bruises, or other injuries caused by defendant's acts of negligence complained of. After the plaintiff was injured he was bound to use ordinary care and prudence, under all the circumstances, to take care of himself and his wounds; and if he employed a physician of good standing and reputation, sup- posing and having reason to think he was such, and who, in fact, was such, then, though the physician may not have used all of the approved remedies, or that remedy which would have been most suitable in the case, or which a good medical man would have used under the circumstances, and on account of the failure to use such usual or proper remedies his condition is worse than it would be had it been used, still plaintiff may recover for his actual damages, if he himself has not been negligent, and such treatment or failure to use such remedy merely \\all not prevent plaintiff from recovering the full extent of his injuries as afore- said. "^ 1 From Looser v. Humphrey, 41 O. S. 378. Sec. 1672, Damages recoverable by husband for injury to wife. You should not include any damages that resulted to the hus- band of the plaintiff for any injuries to the person of his wife, for her physical suffering, or her mental anguish, such as con- stitute a violation of her personal rights, for anything which she may have lost in her wages, or her ability to earn wages, or as a wage-earner for other persons, but not in the domestic services of the plaintiff in his family or household affairs, or to her own separate property or means. But for all these the law gives her a remedy in her own right, and for which the husband may not recover. But he may recover in this action for any damages he 1392 INSTRUCTIONS TO JURY. may have sustained by reason of the impaired ability of his Avife caused by said acts of negligence, if any you find from the evi- dence, to perform her usual domestic services in and about his family and household, for such services as she was able and usually contributed "to his pursuit of gardening in connection with her household duties, and in selling and marketing said products," taking into account the loss of time, the extent and probable duration of any impaired ability which you may find from the evidence, if any, for any loss of the society and comfort of his wife, and for any expenses reasonably incurred for surgical and medical attendance and nursing, incurred in his own behalf, or for his said wife, and for damages to the vehicles as you find the facts to be from the evidence.^ 1 Voris, Judge, in Cranmer v. Akron St. Ry. Co., Summit County Com- mon Pleas. See London v. Cunningham, 20 N. Y. S. 882. 22 Am. St. Rep. 800. Sec. 1673. Measure of damages where special defense on ac- count of physical condition of plaintiff. While it is no defense to say that the person was of susceptible nervous diathesis, or of infirm health, and liable to break down from nervous exhaustion or other causes, and not able to perform ordinary labor, yet these circumstances as you find them to be may be and should be considered by you in determining what compensation ought to be awarded, if any, by reason of future impaired ability to earn wages (or perform labor) or engage in any profitable employment, as bearing upon the question of the length of time the plaintiff may or may not continue to be dis- abled, and the probable duration of his (or her) life. But for whatever impairment he (or she) has so sustained, or will sustain, and caused by said wrongful acts of the defend- ant, he (or she) is entitled to be compensated, so far as you can reasonably ascertain from the evidence. You may consider also what effect, if any, the fact that the plaintiff continued in her occupation after the injury had upon her physical condition. You are instructed that for any suffering or impairment caused DAMAGES — IN PERSONAL INJURY. 1393 or sustained by reason thereof she can not recover, if by reason- able care and prudence under all the circmnstances, and the sur- rounding circumstances should be considered by you in deter- mining whether she exercised reasonable care and prudence, she would have avoided them. The defendant can not be charged with the consequences of the want of reasonable care and pru- dence of the plaintiff that caused her suffering or impairment that otherwise she would not have endured. But you are instructed, however, that it is not" sufficient to defeat her action that she thereby only aggravated the injuiy caused by the negligence of the defendant.^ 1 Voris. Judge, in Dussel v. Akron St. R. R. Co., Summit County Com- mon Pleas. Affirmed by Circuit and Supreme Court. As to damages for personal injury when the person's health is impaired at the time of injury, see 10 Am. St. Rep. 65. Sec. 1673a. Same continued — Amount of compensation. As to the amount of compensation, the court can give you no further assistance. The law has wisely left that to the intelli- gence, candor, and impartial judgment of twelve jurors. Neither should your prejudices or sympathies in the least affect that judgment. Wliat does a fair consideration of the evidence say that impartial justice demands? It is the pride of our jurisprudence that justice is admin- istered impartially. Tlie law loves candid justice, and is no respecter of persons. The rich and poor, the weak and influen- tial, are alike entitled to its protection. You are the exponents of that sense of justice.'' 1 Voris. Judge, in l>ussfl r. Akron St. R. R. Co.. Smninit Cminty Com- mon Pleas. Affirmed by Circuit and Supreme Court. CHAPTER XC. DANGEROUS PREMISES. SEC. 1674. Injury to one walking along sidewalk and privately paved part of premises connected therewith by falling into hole directly in front of cellar window. (See special subjects or headings in sectional heading in text.) Sec. 1674. Injury to person walking along sidewalk and pri- vately paved part of premises connected therewith by falling into hole directly in front of cellar window. 1. Statement of pleadings and issues. 2. Burden of proof. 3. Credibility of loitnesses. 4. The question for the jury. 5. Ounier of premises hound to keep premises in safe con- dition for persons going thereon. Duty to traveler on sidevalk. 6. Defendant liable only if hole dangerous. 7. Duty as to verdict. 8. Duty of plaintiff. 9. Proximate cause. It is alleged and not disputed that the defendant was the owner at the time of this alleged injury, of the premises in question. It is alleged and not disputed that he had leased them to a woman by the name of D. M. for the purpose of conducting a millinery store or business on the property. It is alleged and not dis- puted that this D. IM. had millinery displayed in the windows. It is alleged and not disputed that prior to the date, , at the time of leasing the premises, that there was a cement pave- ment in front of the house about thirteen feet, ten inches vnde, from the curbstone on High street to the front wall of the house ; 1394 DANGEROUS PREMISES. 1395 that a portion of this pavement, about eight feet next up and parallel to the curb was city sidewalk, and the remainder was on the private property of the defendant. Then it is alleged and not disputed that this pavement is con- tinuous and on the same plane, extending from the curb back to the property of the defendant. It is alleged and not disputed that it extends back with the exception that there is a cement step at the entrance of the premises in which this open hole was. It is alleged and not disputed that there wa.s a hole in the pave- ment in the form of a segment of a circle which was unguarded ; that it was open and that it was directly in front of a cellar win- dow, and that there was a window above with millinery dis- played, and so on. It is alleged that the hole was about five feet back from the city sidewalk line ; that it was twelve inches deep, about eleven inches wide at the widest point, and about three feet nine inches long from end to end along the line of the outer surface of the front wall, and that the hole was a part of the permanent improvement of the property. The plaintiff alleges that there was nothing on the pavement to show the city sidewalk line, and alleges that the pavement was open for public use ; that all of the said pavement was used by persons going to and from the house or viewing the millinery in the front window of the tenant, D. M. Plaintiff then alleges the manner in which she received her injury. The defendant enters a general denial of all the things that are not admitted, and the second defense is that said plaintiff wandered off of the city sidewalk in front of the defendant's premises without reason or excuse therefor, went upon the private property of the defendant and negligently stepped into the said opening in front of the cellar window ; that the property of the defendant in front of the house was well lighted and that said opening could have been readily seen and observed by the plain- tiff, who was thoroughly familiar with the defendant's premises and house, and knew, or in the exercise of ordinary care, should have known of the whereabouts and location of the opening, and 1396 INSTRUCTIONS TO JURY. that the negligent conduct of the plaintiff was the proximate cause of any injury which she suffered and which is set forth in the amended petition. 2. Burden of proof . (The usual charge.) 3. Credibility of witnesses. (The usual charge.) 4. The question for the jury — Dangerous character of hole. The question for the jury in this case is whether the hole as described and admitted in the pleadings was so located as to be dangerous to persons and to the plaintiff lawfully passing along and upon the pavement in front of the defendant's property while using ordinary care, and whether ordinary prudence re- quired defendant to erect a barrier around or over the hole. It is admitted that about eight feet of* the sidewalk was city sidewalk while the remainder thereof was on the premises of the defendant; that the same was continuous and on the same plane, extending from the curb to the front wall of the house except for the front steps at the entrance to the house, and which extended out to the south of the hole ; that the hole was about twelve inches deep and about eleven inches wide at the widest point, and about three feet nine inches long, which was part of the permanent improvements on the premises. The question which the jury must determine is whether the open hole was of such nature and character, and located in such position with reference to the street and sidewalk and that part of the defendant's premises which were paved with cement like the city sidewalk and lying beyond the outer line of the cement steps to defendant's property that a person in the lawful and ordinary use of the same, and exercising ordinary care was or is in danger of falling into the hole ; that is, if the traveling public and this plaintiff Avere unable to observe the technical division line between the city sidewalk and the defendant's prem- ises, which were paved similar to the city sidewalk, constituted an apparent public sidewalk kept so by the defendant, and was so constructed as to induce and allure the public and the plain- tiff to use it and to suppose it to be part of the public way, the people generally and the plaintiff lawfully used it, the jury may DANGEROUS PREMISES. 1397 infer that it constituted part of the public way, and the jury may infer therefrom an implied invitation or license to use such part of the defendant's premises as a public way. 5. Owner of premises hound to kccpy premises in safe condition for persons going thereon — Duty to traveler on sidewalk. The general rule of law is that an owner is bound, and the defendant was bound to keep his premises in a safe and suitable condition for those who go upon and pass over them using due care, if he has held out any invitation, express or implied, by which they have been led to enter thereon. Even if you should find that plaintiff passed with or without knowledge, beyond the technical line of the street, that fact will not alone enable you to determine the question whether she was in the exercise of a traveler's right, because a traveler's right on the street is not confined to simply passing along the street. The plaintiff had the right to lawfully use the public way, or any portion of* defendant's premises that may have been used as a public way by the traveling public, whether it was on a paved portion of defendant's premises, or on the city sidewalk. If you find that the paved portion of de- fendant's premises were used by the public, you are instructed tliat the plaintiff would then have the right to use such public way which was either part of the street or that part of defend- ant's premises used by the public for an approach or entry to the building of defendant for a lawful purpose. The jury will notice that I have distinctly spoken of that part of the defendant's premises which have been so improved by him in such way that you could not or may not imply a license to the public and to the plaintiff to use as a public way for travel. I have purposely refrained from reference to that portion of the premises where the hole is located because the question which is submitted to the jury is whether the hole in question, under all the circumstances in this case, was dangerous to persons lawfully using the street or public way; whether there was danger of persons falling into the same. 6. Drfnidanf liaUr only if hole dangerous. The defendant can be held liable in this case, if responsible at all, only in case 1398 INSTRUCTIONS TO JURY. the jury find that the hole was dangerous to persons lawfully- using the public way and that he failed to perform some duty of protection from it if it was dangerous. The location of the hole, the proximity to the public way, the character of the use of the public way and the manner of its use, the probability that trav- elers would or would not be endangered there, and the particular and peculiar surroundings of the case make it one for the jury, which must take all these matters into consideration in determin- ing whether it was or was not dangerous. Was there any danger there to plaintiff while she was exercising ordinary care in passing along the public way? 7. When owner to erect harriers. In the matter of the alleged dangerous character of the hole in question claimed by plaintiff, the jury is instructed that the defendant as owner of the premises was not obligated to erect and maintain barriers to protect trav- elers on or along the public way or street from an opening or hole such as is claimed to exist in this case, unless the hole is located so near the street or public way used by travelers as to be a place of danger, or is of such nature and character as to be a place of danger for those lawfully passing along the street or public way in the use of ordinary care. The true test in law of the obligation of the defendant to erect a barrier, if there is any, is not necessarily the distance from the sidewalk or public way of the hole in question, whether it be much or little, but it is, on the contrary, whether the plaintiff in passing along the street or public way, exercising ordinary care, would or would not be subjected to such imminent danger that it would reasonably require a barrier to make the place or premises reasonably safe. This, gentlemen, is the question for you to determine in this case. The jury will, by the application of the rules of law given you by the court, determine whether the hole in controversy was or was not dangerous ; whether it should or should not be protected by a barrier to protect those lawfully using the public way from imminent danger, themselves using ordinary care. 8. Duty as to verdict. If you find that there was not such imminent danger to travelers as to require a barrier, that will DANGEROUS PREMISES. 1399 be an end of your consideration of the case and your verdict will in such event be for the defendant. But if you find that the hole was such a place of imminent danger as to reasonably require a barrier, then you will consider further whether the injury to plaintiff was caused by the neglect of defendant, or whether it was caused by the neglect of plaintiff herself, as alleged by the defendant in his answer, by negligently stepping into the said opening. Defendant claims that the opening could have been readily seen and observ^ed by the plaintiff who, it is alleged, was thoroughly familiar with the defendant's premises and house and knew, or in the exercise of ordinary care, could have kno^^•n of the location of the opening. 9. Duty of plaintiff. The plaintiff was bound to use ordinary care in the use of the sidewalk and public way. If you find that by the use of ordinary care she could or should under all the circumstances and conditions have known of the existence of the bole, and therefore could have avoided the injury to herself, she may not recover and your verdict in such event should be for the defendant. 10. Proximate cause. If both parties, defendant and plaintiff, were negligent, you will determine which Avas the proximate cause of the injury, the neglect of the defendant or the neglect of the plaintiff. The proximate cause is the efficient cause, the act but for which the injury would not have occurred. If it was plaintiff's negli- gent conduct that directly caused the injury, she may, of course, not recover ; but if it was directly caused by reason of the immi- nent danger of the hole and the failure to properly protect it, your verdict should be for the plaintiff. And in that event you will award her such compensation by way of damages as you in your judgment, deem proper under all the e\idence. You may consider the nature of her injury, any pain or suffering that she may have endured.* 1 Walkfr V. Radcr, Franklin Co. Com. PI., Kinkead, J. CHAPTER XCI. DEATH BY WRONGFUL ACT. SEC. 1675. 1676. 1677. 1678. Action for death by homicide — Self-defense. Same continued — What is ex- cusable homicide. Same continued — Right of self-defense — Justifica- tion. Action for death by wrongful act by administrator of wife killed at steam rail- road crossing while rid- ing with husband, who is driving team — Rail- road crossing case. 1. Introductory statement. 2. Failure to provide gates, to give warning of ap- proach of trains at cross- ing, and to keep watch- man thereat — Ordinance. 3. Failure of driver and oc- cupants of wagon to look and listen for approach- ing trains. 4. Administrator may recover if deceased not negligent. 5. Occupant of wagon having right to direct or con- trol one whose negligence contributes to injury — Husband and wife. Sec. 6. If husband or wife saw or could have seen train. 7. Misled by absence of watchman. 8. Failure to ring bell or sound whistle. 9. Vision obstructed by build- ings. 10. Contributory negligence of beneficiaries. 1679. Measure of damages for death of husband — Wife and children as beneficiaries. 1680. Another form as to measure of damages for death of husband. 1681. Damages for death of young man. 1682. Intelligent discretion to be used in assessment of damages. 1683. Damages resulting to husband and children for death of wife. 1684. Measure of damages for death of child — Mental pain and anguish not elements. 1685. Measure of damages — Earn- ing capacity. Sec. 1675. Action for death by homicide— Self-defense. "It is to be observed that this case is to be tried in the same manner, and it is to be governed by the same principles of law, as if the deceased had not died of the injuries, and had com- menced an action for the recovery of damages for these injuries, or in other words, that this action can be sustained under such state of facts only as would have entitled the deceased, had he 1400 DEATH BY WRONGFUL ACT. 1401 lived, to have maintained an action, and reeoviT damages for the injury which caused his death." "If, for instance, the deceased had been wounded, and had not died of his wounds, and had brought an action against the defend- ant for damages, if it appeared that deceased made the tii-st assault, and this defendant repelled it by force, employing no more force than was necessary to protect himself, the plaintiff (deceased) could not recover; but if the defendant went unnec- essarily beyond this, and employed force entirely dispropor- tionate to the attack, such as to show wantonness, malice, or revenge, he himself would become a wrongdoer and would be liable for injuries inflicted beyond what was reasonable and necessary. ' '^ I Darlint' r. Williams. 35 0. S. 58. The case from wliicli this is taken was not one of negligence, but of intentional killing. The defend- ant denied the charge, and alleged that all he did was done in self- defense. This allegation the plaintiff denies, and upon these issues the case was called to trial. There was no appearance that the defendant's liability arose from negligence. The injury was the outgrowth of a fight or affray. Had the deceased survived and brought an action for the injury, it would have been an action for assault and battery. In such action the law governing cases of neg- ligence, would have been entirely inapplicable. Darling i'. Williams, supra. Sec. 1676. Same continued — What is excusable homicide. It seems to be now well settled that to justify the taking of the life of an assailant in an attack, there must appear to the satisfaction of the jury, first, that the defendant, if assaulted without any wrong or cause on his part, honestly and truly believes that he is in imminent danger of his death, or of great bodily harm ; and if, secondly, he has jnst and reasonable cause to apprehend such danger, which he can not avoid without taldng the life of his adversary, it is excusable.* 1 Darling r. Williams. 35 0. S. 58. Sec. 1677. Same continued— Right of self-defense — Justifica- tion. Tluit every person luis the right to dcfeiiil liimsi'lf against attacks, or threatened attacks, of such character as would on- 1402 INSTBUCTIONS TO JURY. danger his life or limb, or to do him great or serious bodily harm or injury, even to the taking of the life of the assailant; and where a person apprehends that another is about to do him great bodily harm, and has reasonable grounds for believing the danger imminent, he may safely act upon such apprehension and even kill the assailant, if that be necessary, to avoid the apprehended danger. That the necessity which permits in law, the taking of life in self-defense, may be either apparent or real. It is real when there is actual danger to life, or great bodily harm ; it is appar- ent, when the circumstances, at the time of taking life, to a rea- sonable mind, indicated the presence of actual danger to life, or great bodily harm, though there is in fact none.^ "It is not, however, necessary that the danger should prove real or in fact existing, for whether real or apparent, if the circumstances are such as to induce a belief sufficiently well grounded, that life is in peril, or that grievous bodily harm is intended ; and to be threatened with a danger, he may act upon appearances and slay his assailant. Yet there must be reason- able ground for his belief in the danger threatened, arising out of the circumstances in which he is placed, otherwise the act of taking the life of the assailant is entirely without justification."^ 1 Darling v. Williams, 35 O. S. 58. "One person can justify the taking of the life of another in self-defense, only where, in the proper exercise if his faculties, he believes in good faith, and upon sufficient or reasonable grounds of belief, that he is in imminent danger of death, or grievous bodily harm." Id.; Marts v. State, 20 0. S. 162. 2 Darling v. Williams, 35 0. S. 62. Boynton, J. Sec. 1678. Action for death by wrongful act — By administra- tor of wife, killed at steam railroad crossing, while riding with husband, who is driving team — Railroad crossing. 1. Introducmg statement. 2. Failure to provide gates, to give warning of approach of trains at crossings, and to keep watchman thereat — Ordinance. DEATH BY WRONGFUL ACT. 1403 3. Failure of driver and occupants of wagon to look and listen for approaching trains. 4. Administrator may recover if deceased not negligent. 5. Occupant of wagon having right to direct or control one whose negligence contributes to injury — Husband and wife. 6. // husband or wife saw or could have seen train. 7. Misled by absence of watchman. 8. FaMure to ring bell or sound whistle. 9. Vision obstructed by buildings. 10. Contributory negligence of beneficiaries. 1. Introductory statement. This action is brought by plain- tiff as administrator of S. F., deceased, seeking to recover dam- ages for pecuniary injury resulting from the death of S. F., deceased, for the benefit of the husband, J. F., and the children of said decedent (naming them). The statutes conferring this right of action provide, in sub- stance, that whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action against, and recover damages in respect thereof, then in such case the corporation or person so liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured. The statute also provides that every such action shall be brought in the name of the personal representative of the de- ceased person for the exclusive benefit of the husband and chil- dren, if there be such, of the person whose death shall be so caused, and in every such action, the jury may give such dam- ages not exceeding in any case $ , as they may tliink the proportion to the pecuniary injury resulting from such death, to the persons respectively for whose benefit siieh action shall be brought. 2. Faihirr to provide gates, to give warning of approach of trains of crossing, and to krep watchman thereat — Ordinance. Tt is for the jury to determine from the evidence whether the 1404 INSTRUCTIONS TO JURY. defendaut was negligent as claimed in failing to provide gates at the railroad crossing, and in failing to give warning of the approach of the train at the crossing, and in failing to maintain and keep a watchman at the crossing at the time and place of the injury, and also whether the defendant railway company violated the ordinances of the city in failing so to do. If the jury find from the evidence that the city of Columbus by ordinance provided for the maintenance of gates at railway crossings with streets and highways of the city, and provided for the maintenance of watchmen at crossings of steam railways within the city, as well as for the ringing of bells and blowing of whistles to give warning to travelers approaching crossings to pass over the same, you are instructed that it is proper for you to consider the provisions of this ordinance with all the other evidence in the case in determining whether the defendant was guilty of negligence in one or more of the particulars mentioned and set forth in the petition. The jury are instructed, however, that the disobedience of the provisions of the ordinance by the railroad company would not in and of itself constitute negligence on the part of the defendant company which alone would entitle plaintiff to recover in this action. The ordinance of the city is to be regarded merely as an expression by the law-making body of the city of a standard of duty required by it in respect to the conduct and management of railway trains under such circumstances. But as stated, this requirement is not necessarily controlling in your deliberations upon the question, it being entirely within your province and duty to determine the fact of negligence or not, according to the evidence as you see it, based entirely upon your own opinion and judgment upon all the evidence. A law of the state enacted by the legislature prescribing a duty under such circumstances, if there was such a law, would be binding upon the jury as prescrib- ing the standard of duty, and a violation thereof would consti- tute per se negligence. But such is not the rule in respect to an ordinance. The jury are permitted to consider the provisions of this ordinance along -udth all the other testimony and deter- mine the fact. DEATH BY WTIONGFUL ACT. 1405 3. Failure of driver and oceupants of wagon to look and listen for approaehing train. The evidence in this case tends to show- that S. A. F. was riding with her husband, J. F., at the time of the injury complained of, and that her husband was driving, S. A. F. being seated in the wagon, but that she was not driving the horses. It was the duty of the driver of the wagon, as well as that of the occupants thereof, in approaching the railroad crossing known to them, to look and listen for approaching trains. Where the evidence shows that both the driver and the occupants of such a wagon fail and neglect to look and listen for approaching trains, the occupant of such wagon is guilty of negligence which will prevent a recovery of damages against the railroad company for injuries received at the crossing by a collision of the wagon with an approaching train. This is true notwithstanding the railroad company may have been guilty of negligence by running its train at an unlawful speed within the city limit, failing to blow the whistle or ring the bell as provided by ordinance, or failing to maintain a watchman or gates at the crossing of the railroad with the streets. The law devolves a duty upon all persons approaching a known railroad crossing, to exercise ordinary care on their part to avoid coming in collision with the engine and cars at the crossing and to avoid injury therefrom. Tt is incumbent upon the jury, therefore, to look to the evidence and determine therefrom whether or not S. A. F. at the time and place exercised ordinary care on her part in approaching the crossing; and if you find that she did not exercise ordinary care, either by looking or lis- tening for the approach of trains, or if she saw or heard the train approaching, and failed to notify her husband of such fact, if under the circumstances the jury find that she could liy the exer- cise of ordinary care, have seen or observed the train in time to have stopped the team of horses before going upon the track, or in time to have notified her husband to stop the team before reaching the track, and that she failed to do so. then the jury are instructed that such neglect on her part w ill constitute negli- 1406 INSTRUCTIONS TO JURY. gence which, if it was concurrent with and directly contributed to the injury causing her death, then plaintiff may not recover. 4. Administrator may recover if deceased not guilty of negli- gence. If, on the other hand, the jury find that S. A. F., the deceased, under all the circumstances was not guilty of negli- gence in approaching the crossing, that there was no failure on her part to exercise ordinary care in approaching the crossing, and that the defendant was guilty of negligence in any one or all of the particulars charged, and such negligence on its part was the proximate cause of the injury producing the death, then the plaintiff is entitled to recover provided you find that the persons named as beneficiaries in the petition have been dam- aged, notwithstanding you may find that the husband, J. F., was himself guilty of negligence which directly contributed to the injury which caused the death of the wife, S. A. F. That is, if the wife herself was in the exercise of ordinary care at the time of the approach to the railroad crossing by her husband while driving the vehicle, and if she was not guilty of negligence di- rectly contributing to the injury producing her death, then the jury are instructed that the law of imputed negligence would not apply, even though the driver of the vehicle has the husband, unless you find that the husband as such driver was under the control and authority of S. A. F., the deceased wife, and that J. F., the husband, was thereby the agent of the wife. 5. Occupant of ivagon having right to direct or control one whose negligence co7itrihutes to injury — Husband and wife. It is the law of this state that where an occupant of a wagon stands in the relation of a principal to, or has the right t direct or control the action of one whose negligence contributed to the injury of the occupant, then in that event, the law ic that acts of negligence on the part of the one who stands in the relation of an agent, may be imputed to the occupant or principal, and the negligent acts of the agent, if the same caused or contributed to the injury, would be a bar to recovery for the injuries sustained by any such principal. So the jury is charged that it was the duty of both the husband and wife in approaching the crossing, DEATH BY WRONGFUL ACT. 1407 to exercise ordinary care under the circumstances, to look and listen for the approach of trains at the crossing before under- taking to cross thereover. 6. If husband or irifc saw or could have seen train. You are instructed that if the wife and husband when about to cross over the railroad track at the crossing saw the train of cars approach- ing the crossing from the south, or if by the exercise of ordinary care they could have seen it, at the time and place, you are in tliat event instructed that if, by the exercise of ordinary care, they could have stopped the team of horses before entering upon the crossing, it was their duty to do so. In this connection the jury are instructed that when a train is approaching near a crossing of a street or highway, that drivers of teams approach- ing such crossing, are bound, in the exercise of ordinary care under the circumstances they are able to discover and learn of the approach of a train, to stop. Under such circumstances the train has the right of way because persons driving vehicles may stop within a few feet, while the train may not stop within the same distance that a team of horses can be stopped. 7. Misled by absence of watchman. It is claimed that the deceased wife was misled by the absence of a watchman at the crossing at the time of the accident. It is also claimed that the engineer of the locomotive either failed to sound the whistle or ring the bell of the engine while approaching the crossing, and that there were obstructions on the street at or near the vicinity of the crossing which prevented the deceased wife from seeing the approach of the train from the south toward the crossing. 8. Failure to ring bell or sound whistle. The jury are in- structed that if the engineer of the locomotive did not ring the bell or sound the whistle while approaching the crossing, and that there was no watchman at the crossing at the time, and that the engine and cars w^ere running at a rate of speed in excess of that provided by ordinance of the city, and that the deceased, S. A. F.. in the exercise of ordinary care Avas misled by the absence of a watchman or of signals from the locomotive, and that the deceased, S. A. F., as a reas(mably prudent person 1408 INSTRUCTIONS TO JURY. believed that she could cross the tracks in safety, and that while attempting- so to do, without negligence on her part, was struck and killed by the train, and that such death was caused solely by any one of the acts of negligence charged ag-ainst the company which were a direct or proximate cause of the injury causing her death, then the plaintiff is entitled to recover in this action. 9. Vision obstructed by buildings. There is some evidence tending to show there were buildings on the south side of j\I. street near the crossing, and that there was a moving wagon to the south side of INI. street, at or near the point just east of the crossing at or about the time of the accident in question. The jury is instructed that any obstruction which obscures or cuts off the range of vision of approaching trains increased the duty of vigilance to avoid the danger, and persons about to pass over crossings, are also required, if the view is obstructed, to call into use their sense of hearing and to listen for approaching trains. In other words, in the exercise of ordinary care by per- sons approaching a known crossing, the question whether such persons did or did not exercise ordinary care, will depend upon the circumstances at or about the vicinity of such crossing at the time, and in determining the question of negligence and also the question of contributory negligence, you will take into con- sideration all the circumstances surrounding the case and sur- rounding the parties at the time of the injury in question. If you find from the evidence that the view of S. A. F. was obstructed as she approached the defendant's track by the build- ing on the south, or by the moving wagon, so that she could not see far up the track, then it was her duty to listen for an approach- ing train before going upon the track. And if she failed to do so without reasonable cause therefor, she was negligent, and if such negligence contributed to produce her death, her adminis- trator may not recover in this case. 10. Contributory negligence of heneficiaries. The beneficiaries named in the petition are (J. F., the husband of decedent, and the three sons and daughter of the decedent) . The jury is instructed that if any one or all of the beneficiaries for whose benefit this action is brought are guilty of contributory DEATH BY WRONGFUL ACT. 1409 negligence which directly contributed to the injury which caused the death of the person complained of, such contributory negli- gence will defeat the right of any such beneficiary so guilty, to recover damages therefor. But it would not defeat the right of other beneficiaries, if such there are, of any sucli decedent if they have sustained damages by reason of the death by negli- gence of any such decedent. Therefore, the jury is charged that if under the instructions and the evidence you find in favor of the plaintiff, it will be your duty to look to the evidence and determine whether J. F., the husband of the decedent, was him- self guilty of negligence directly contributing to the injury which caused the death of his wife. If you find that he was guilty of such proximate contributory negligence, then in your determina- tion from the evidence as to the amount of damages that the beneficiaries are entitled to recover it will l)e your duty not to consider J. F., the husband of the decedent, as entitled to recover damages on account of the death of his wife. If you find that the husband was not guilty of negligence con- tributing to the death of his wife, and that he has sustained pecuniary injury by reason of her death, then you may consider him as one of the beneficiaries entitled to recover in this action. And if you find that each and all of the beneficiaries named in the petition have sustained pecuniary injury, and you find for the plaintiff, it will be your duty to find and determine what damages respectively and beneficiaries have sustained. The amount of damages should be a fair and just compensation for the pecuniary injury resulting to tlu^ husband and children from the death of the wife and mother. In no case can you consider the bereavement, mental anguish or ])ain suffered by the living for the dead. The damage is exclusively for the pecuniary loss; not a solace. It is the reasonable expectation of what the husband and children, if they, or either of them are entitled to recover, might have received from the deceased had shf lived, whjeli is the proper subject for the consideration of the jury, what the husband and children mitrht reasonably expect to receive by reason of the services of S. A. F. in a pecuniary ])oint 1410 INSTRUCTIONS TO JURY. of view, is to be taken into consideration in determining the amount of damages. It is the present worth as a gross sum of money for the loss of the services of the wife that you are to consider. It is that sum which, put in money, as a compensa- tion for what you find this woman would reasonably have saved for her family. In determining this, all these questions are to be considered; that is, the age, health, probability of length of life, if she had not died as a result of the injuries stated in the petition. In no event may there be a recovery for a sum in excess of $10,000.00.^ 1 Fippen, Admr., x>. T. & 0. C. Ry. Co., Evans, J., affirmed by circuit und supreme court, 86 0. S. 334. Sec. 1679. Measure of damages for death of husband — Wife and children as beneficiaries. The measure of damages in this action is the pecuniary injury only, the money value of the deceased to his wife and chilflren. This is the law. The jury can not consider their bereavement, or the mental or bodily suffering of either deceased or his family. Nor can you allow anything by the way of exemplary damages. The sole question of the jury as to damages is what actual pecuni- ary loss the family of the deceased, named in the petition, has sustained by his death ; and in coming to a conclusion on this matter, the jury may consider -the habits of deceased at the time of his death, whether or not he was an industrious man, his physical condition, his capability of earning money, the manner in which he provided for his family, his expectancy of life, and such other circumstances presented by the e\^dence as will aid you in coming to a correct conclusion. Sec. 1680. Another form as to measure of damages for death of husband. Nothing can be recovered in this action by way of solace to this widow, who has been deprived of her husband, for sorrow or mental anguish which would result from that to her. It is purely a question for you, if you reach the question of damages, as to the pecuniary damage which has been sustained. And DEATH BY WRONGFUL ACT. 1411 should you reach that point in your deliberations, in fixing the amount of damage which has been sustained by the death of M., you may fairly take into consideration such facts as the evidence disclose as to ]\I.'s age, his health, his habits of industry, and all those facts which bear upon the question as to what his life in dollars and cents was probably worth to his next of kin, and that sum would represent the damage that the plaintiff would be entitled to recover in this case, if you find that the negligence has been proven as alleged, and that such negligence caused the death of M.^ 1 Wm. B. Sanders, Judge, in L. S. & M. S. Ry. v. ]\Iatthews, 51 0. S. 565. Sec. 1681. Damages for death, of young' maai, to mother, sis- ters BJid brother. The damages must be in a sense speculative. You are to estimate what, by a fair judgment, would be a pecuniary com- pensation to the mother and sisters and brothers for the pecuniary loss which they have sustained by reason of the death of the plaintiff' 's intestate. It is the only pecuniary loss which they have sustained. You are to reach that by taking into considera- tion the age of the young man, his earning capacity, his proba- bility of life, and to include in your verdict such amount as you think the mother, brothers and sisters would have received from this young man if he had continued to live, and had not been killed in the way in which it has been described to you. This calls for the exercise of a fair judgment and discretion. You may include in the verdict any reasonable probability of the accumulation of any money by this young man if he had lived, and the benefit from such accumulation, if he had died, to the persons for whose benefit this action is brought.^ iWm. H. Taft, Tiidpre. in C. H. & D. R. R. v Kassen, Supreme Court, No. 1545. Sec. 1682. Intelligent discretion to be used in assessment of damages — Parents. You will assess such damages in that case as in your judgment the plaintiff ought to recover, limited, however, by the instruc- 1412 INSTRUCTIONS TO JURY. tions herein given. This discretion the court feels should be exercised in a reasonable manner. It must be an honest, intelli- gent discretion, guided by the facts that are given to you in evidence. This amount of damages, within the limits of the law, and which is fixed by the statute not to exceed ten thousand dollars, is to be ascertained from the evidence submitted to you. It should be a fair and just compensation, proportionate to the peculiar injury resulting to the father and mother from such death ; and in determining this, the reasonable expectations of what the beneficiaries might have received from the deceased had she lived is the proper subject for your instruction;^ but no damages can be given on account of bereavement, mental suf- fering, or as a solace on account of such death.- This compensa- tion can l)e considered by you only as a hard cash transaction. In determining this compensation, the intelligence, health, and age of the deceased, or her capacity for services or wage-earning, and the reasonable expectation of what the father and mother might have received from the deceased had she lived, the age of the parents, and the reasonable expectancy of their lives, consid- ering their ages, health, and uncertainty of human life, may be considered by you as shown by the evidence, which evidence must guide you.^ 1 Grotenkemper v. Harris, 2.5 0. S. .510. 2 Davis i\ Guarnieri, 4.5 0. S. 478-9. 3 Voris, Judge, in Gaston v. Lake Shore R. R. Co., Lorain County Com- mon Pleas. Sec. 1683. Damages resulting to husband and children for death of wife. "The plaintiff's damages, if any, should be a fair and just compensation for the pecuniary injury resulting to the husband and children from the death of the wife. In no case can the jury consider the bereavement, mental anguish, or pain suffered by the living for the dead. The damage is exclusively for a pecuniary loss, not a solace. The reasopable expectation of what the husband and children might have received from the deceased. DEATH BY WRONGFUL ACT. 1413 had she lived, is a proper subject for the consideration of the jury, if it finds for the phiintiff. What the husband and children might reasonably expect to receive by reason of the services of this woman in a pecuniary point of view is to be taken into account in determining the amount of damages, if you find for the plaintiff. It should be said that it is the present worth as a gross sum in money, for the loss of the services of the wife, that you are to find, if you find a loss. It is that sum which put in money is a compensation for what you find this woman would reasonably have saved for her family. Of course, in determining this, these things are all to be considered; that is, the age, health, probability of length of life, or death if she had not died from taking this drug."^ 1 From Davis v. Guarnieri, 45 0. S. 470. Sec. 1684. Measure of damages for death of child — Mental pain and anguish not elements. If you find for the plaintiff, in assessing damages you are not to consider the mental pain and anguish of the parents on account of this misfortune. This is, as the law provides, only a matter of dollars and cents, and you should allow a just com- pensation for the pecuniary injiiry resulting to the parents, and in getting at this, you will as best you can get at what is the reasonable expectation of pecuniary advantage to them from the life of this boy if he had lived, and it is for you to consider all his characteristics, and how long he might have otherwdse lived, or how soon have died, and all the circumstances that tlirow any light on this part of the controversy. If you find for the defend- ant you will simply say so.^ 1 Heisley, J., in Spink case, Cuyaliojja County. Sec. 1685. Measure of damages — Earning capacity. In determining the amount of damages, if any, in a case like this, with reference to the earning capacity of the deceased, the jury is instructed that the true basis for recovery for the death of if what you may find that tlie decedent would probably have contributed to his family, either for their sup- 1414 INSTRUCTIONS TO JURY. port or as an addition to his estate. The measure of damages for the loss of human life, from negligence, so far as future earnings and contributions go to constitute damages is the present value of the contributions made by the deceased to the beneficiaries, ascertained by deducting the cost of his living and expenditures from the net income, and no more can be allowed than the present worth of accumulations arising from such net income, based upon the expectancy of life. That' is, having ascertained the total sum, its payment must be antici- pated, and no more than the present worth thereof can be awarded in damages. The discount should be made only from the time it is found that such contributions would have been actually made had decedent lived, and not at the end of the decedent's expectancy.^ 1 Evans v. Railroad, 37 Utah, 431, 108 Pac. 638, Ann. Cas. 1912 C. 259. (Made to fit ruling in this case.) CHAPTER XCII. DEEDS. SEC. SEC. 1686. Execution of, under duress — 1688. Covenant against ejicum- Threats. brances — What consti- 1687. Capacity to make — Weak tutes breach — Damages mind — Old age — Decla- recoverable. rations of grantor ad- 1689. Mental capacity of grantor. mitted for what purpose. Sec. 1686. Execution of, under duress — Threats. "To constitute duress which would avoid the deed, it is not necessary that the threats be of legal injury alone; but if the plaintiff, the wife of T., was induced to execute the deed by the threats of her husband, that he w^ould separate from her as her husband and not support her, it is duress and will avoid the deed. "The threats must be such as she might reasonably appre- hend would be carried into execution, and the act must have been induced by the threats. It is not necessary that the threats be made at the time or immediately before signing, if it was within such time, and the circumstances prove that the threats or their influence properly conduced to influence the plaintiff."^ iTapley v. Tapley, 10 Minn. 458; citing 2 Greenlf. Ev., sec. 308; 1 Story Eq. Jur., sec. 239. Sec. 1687. Capacity to make — ^Weak mind — Old age — Decla- rations of grantor admitted for what pur- pose. The court says to you that no general rule can be laid down as to what constitutes undue influence in this class of cases further than this: that in order to make a good deed the man must be a free agent and feel at liberty to carry out his own wishes and desires ; and any restraints, threats or intimidations brought to bear upon the grantor, wliich he has not the strength of mind or will to resist if exercised so as to coerce him against 1415 1416 INSTRUCTIONS TO JURY. his desire and purpose in the making of the deed, is undue influence within the meaning of the law. And the amount of undue influence which would be sufficient to invalidate a deed may vary with the strength or weakness of the mind of the vendor; and the influence which w^ould subdue and control a mind and will naturally weak, or one which had become im- paired by age, disease or other cause, might have no effect to overcome a mind naturally strong and unimpaired. And whether such undue influence existed in this case must be determined by the jury from the consideration of the evi- dence. * * * Evidence of the declarations of the vendor at times other than the time the deed was made, and instances occurring at times other than the said time, are competent as tending to show the kind of a person he was, and also to show the state of his mind, its strength or weakness, its susceptibility to influ- ence or its capacity; and these declarations are admitted simply as to the external manifestations of the vendor's mental condition and not as evidence of the truth of the facts he states.^ 1 Gillmer, J., in Norris v. Western Reserve Seminary, Trumbull Co. Com. Pleas. Sec. 1688. Covenant against encumbrances — What constitutes breach — Damages recoverable. ' As a matter of law, if you find the deed was duly executed and that there was the outstanding mortgage unsatisfied at the time of the execution thereof, that, even if nothing had been done beyond that, would constitute a breach of the covenant against encumbrances which would entitle the plaintiff to recover nominal damages only. But if the person, if M., the grantee in the deed, was obliged to pay anything beyond that, or any- thing for the purpose of removing the encumbrances, then, to that extent, or whatever he may have paid, he would be entitled to recover in this case. If the encumbrance existed at the time of the execution of the deed, the breach of the covenant occurred at the time the DEEDS. 1417 deed was executed, and the grantee would be entitled to recover for whatever amount was outstanding and a lien against the property at that time, Avith interest upon it from that time up to the first day of this term, provided he was obliged to pay it, or if it was paid out of the proceeds of his land on which that was found to be a lien, no matter whether tliat proceeding was instituted by the party holding the lien or somebody else; or if you find in this case that proceedings were instituted and money was paid, and that amount is all that was in dispute, it is necessary that you, by the testimony, should find the amount the party was obliged to pay, or what was paid on this out- standing claim out of the proceeds of the land of >\I. ; to that amount he would be entitled, with interest upon it up to the first day of this term. If you find he sustained any other damage in consequence of this outstanding lien, if you find he was damaged in other ways, directly, and there is direct and positive proof upon the subject that he was otherwise damaged, then you may take into consideration other damage, if any, which he may have sus- tained and which are clearly shown by the proof in this case. But if not, you should return a verdict, if you find this was not so paid, then you should return a verdict for the defendant ; but if you find it was paid out of this fund, you sliould return a verdict for the plaintiff, and your verdict should be for the amount which was found by the court at the time the proceed- ings were had to foreclose this mortgage, and which was found by this court to be a lien on this property. If that amount was paid, he would be entitled to recover at your hands that amount with interest upon it to the first day of this term, from the time of .such payment.^ 1 Marlow v. Thomas, Supreme Court, unreported, Xo. 1018. By Johnston, J., in Mahoninf; Co. C. P. A covenant against an incumbrance is broken as soon as an incumbrance in fact exists, at least for nom- inal damages. Hall v. Plaine, 14 O. S. 417; Rawle on Gov. (ath ed.) sec. 70 and cases cited. An action for nominal damages may be maintained even without eviction. Stambuugii v. Smith, 23 O. S. 584. 1418 INSTRUCTIONS TO JURY. The measure of damages for a breach of a covenant against incumbrances is the amount which would be required to be paid to extinguish tlie incumbrance, also any consequential damages directly resulting from the existence of the incumbrance. Wood's Mayne on Damages, sees. 259 and 260; Delaverger v. Norris, 7 Johns. 358; Hall v. Dean; 13 Johns. 105, 2 Wheat. (U. S.) 45; Eawle on Gov. of Title, sec, 86. Sec. 1689. Mental capacity of grantor. The law presumes that J. N., the grantor, had sufficient capac- ity to make such a deed, and therefore the burden is upon the plaintiff to show by a preponderance of the evidence, before he can recover, that J. N., the grantor, had not sufficient mental capacity to make the deed or instrument in question. Before a man can legally convey his property, he must have memory. A man in whom this faculty is totally extinguished can not be said to possess understanding to any degree what- ever, or to any purpose, but his memory may be imperfect, it may be greatly impaired by age or disease, he may not be able at all times to recognize the names of persons or families of those with whom he has been intimately acquainted ; and he may at times ask and repeat questions that have been answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life, including the disposal of his property The question is not so much what was the degree of memory possessed by the grantor, as it is this : Did he have the requisite mental capacity, and was he a free agent in making the convey- ance at the time he is said to have executed it ? 1. Old age alone. The power to make a valid deed is not de- stroyed or lost by old age alone ; nor is it denied to him who has attained the utmost verge of life. Old age does not always or necessarily extinguish the light of intellect. It is in some men more brilliant that it is in others at much earlier age. The law looks only to the competency of the understanding ; neither age nor sickness, nor extreme distress or debility of body will be suf- ficient to render a deed invalid, provided the grantor at the time DEEDS. 1419 it was executed did know \\ hat was being done, and did under- stand the nature of the act, and did have sutficient mental capac- ity to execute the deed ; but the age of the individual, if consider- able, is of importance and should be carefully considered by you as bearing on this question. 2. Inability to recognize acquaintances. An habitual inability to recognize neighbors and acquaintances would be strong evi- dence of a sunken intellect and should be carefully considered by you; but a few occasional instances of this kind may show in an old gentleman a memory weakened but not destroyed, im- paired but not extinguished. The want of recollection of names is one of the earliest symptoms of decay of memory, but its failure may exist to a very great degree and yet the solid power of understanding remain. * * * 3. Opinions of idtnesses. The mere opinions of witnesses are entitled to little or no weight unless they are supported by good reasons founded on facts which warrant them in the opinion of the jury. If the reasons are frivolous on inconclusive, or if founded on a wrong basis, the opinions of such witnesses are of but little aid to the triers of the cause. Every man having sufficient mental capacity, and not under any undue influence, is the lawful disposer of his own property, and he has the right to dispose of it as may seem best to him. CHAPTER XCIII. DRUGGIST. SEC. 1600. Ordinary degree of skill required. Sec. 1690. Ordinary degree of skill required. The jury is instructed that a druggist or registered apothe- cary, or any person who undertakes to act in the capacity of a qualified druggist in preparing medicines and filling physicians' prescriptions, is required by law, to possess a reasonable and ordinary degree of knowledge and skill with respect to the phar- maceutical duties which he professes to be competent to per- form. He is not required to possess the highest degree of knowledge and skill to which the art and science may have attained. He is not required to have skill and experience equal to the most eminent in his profession. He is only required to have that reasonable degree of learning and skill which is ordi- narily possessed by other druggists in good standing as to quali- fications in similar communities. The law imposes upon a druggist the obligation to exercise all reasonable and ordinary care and prudence in applying his knowledge and skill in compounding medicines, filling prescrip- tions and performing all other duties of an apothecary. He is not bound to use extraordinary care and prudence, or a greater degree of care than is ordinarily exercised by other qualified druggists. Ordinary skill is the test of qualification and ordi- nary care is the test of the application of it. In applying his Imowledge and exercising care and diligence, the druggist is bound to give his patrons the benefit of his best judgment. For in pharmacy there is a class of cases in which judgment and dis- cretion must be exercised. The druggist is not necessarily responsible for an error of judgment which is reconcilf.ble inl 1420 DRUGGIST. 1421 consistent with the exercise of ordinary care and skill. He does not absolutely guarantee that no error shall ever be committed in the discharge of his duties. He may commit an error or mistake which may not be held to be actionable provided he exercises ordinary care and judgment.^ 1 Tremblay i\ Kimball, 107 Me. 53, 77 Atl. 405; Am. Ann. Cus., 1!)]2 C. 1215. CHAPTER XCIV. DYNAMITE— UNLAWFUL USE OR POSSESSION OF. gEC^ 3. Intent to make unlawful 1691. Having possession of dyna- use of. mite for unlawful use — 4. Malice and intent. Unlawfully depositing 5. Alibi. game. 6. Defendant under influence 1. The statute. of cocaine. 2. The charge and elements 7. Opinion evidence as to of crime. mental capacity. Sec. 1691. Having possession of dynamite for unlawful use — Unlawfully depositing same. 1. The statute. 2. Charge and elements of crime. 3. Intent to make unlawful use of. 4. Malice and intent. 5. Alibi. 6. Defendant under influence of cocaine. 7. Opinion evidence as to mental capacity. 1. The statute. The statutes of this state declare, in substance, that: "Whoever has in his possession or under his control dynamite or other nitro explosive compound for other than a lawful use, or places or deposits it upon or about the premises of another without his consent, shall be punished," etc. [Code, sec. 12533.] 2. The charge and elements of cnme. Coming now to the charges in the indictment in the first count, the defendant is charged with having dynamite in his possession and control for other than a lawful use, to-wit, for the unlawful use of mali- ciously destrojnng the property of said Kailway Company, known as the South Street Car Bam of said Company. In the second count the defendant is charged with unlawfully placing and depositing dynamite upon certain premises of said Street Rail- way & Light Company, known as the South Car Barns of said Company, without its consent. Before the defendant can be 1422 DYNAMITE — UNLl:V\\TUL USE OR POSSESSION OF. 1423 convicted on either of the counts charged in the indictment, there are certain material facts which it is essential for the state to establish beyond a reasonable doubt. Regarding the first count, the material facts are these : First. That the crime charged in said count was committed by the defendant in Franklin County, Ohio, on or about the time charged in the indictment. The exact time, gentlemen, is not essential, so that it is about the time charged in the indictment. Second. That the defendant had dynamite in his possession or under his control. Third. That the dynamite so in his posses- sion or under his control was for other than a lawful use. Fourth. That the unlawful use was that of maliciously destroy- ing the property of the Columbus Railway & Liglit Company, a corporation. Fifth. That such property was the South Street Car Barns and belonged to said Columbus Railway & Light Company, as alleged. Regarding the second count, the material facts are these : First. That the crime charged in that count was committed within the body of Franklin County, Ohio, by the defendant about the time charged. Second. The placing or depositing of the dynamite by the defendant on the premises belonging to the Columbus Railway & Light Company, a corpora- tion, to-wit, its South Street Car Barns, as alleged. Third. So placing or depositing said dynamite without the consent of the said company. Under these two counts in the indictment you may, if the evidence justifies it, find the defendant guilty upon both counts, or, if the evidence justifies it, find the defendant guilty upon either one of the two counts, and not guilty upon the other, or you may find the defendant not guilty upon either count. It is not essential to a verdict of guilty on either count that the dynamite should have exploded or injured any of the property of the Railway & Light Company. It is, however, essential, so far as the first count is concerned, that the defendant had it in his possassion or under liis control for tlic unlawful use as alleged ; and, so far as the second count is concerned, that he placed or deposited it on the premises of the Street Railway Com- pany without its consent, as alleged. 1424 INSTRUCTIONS TO JURY. 3. Intent to make unlawful use of. To constitute tlie offense, as charged in the first count, of having said dynamite in de- fendant's possession for the unlawful use as alleged, it is es- sential that he should have had the same in his possession, with the criminal or evil intent of making the unlawful use of it as charged. If you find that he had the dynamite in his possession, but not with the criminal intent of unlawfully using it to maliciously destroy the barn of said company as charged, he is not guilty. But if he had the dynamite in his possession with the evil intent of using it for the malicious destruction of said barn, as charged, and the other material elements constituting said crime are proved, you will be war- ranted in finding him guilty as charged in the first count. If the defendant had dynamite in his possession or under his control, purchased by him at the request of and for other persons whom he did not know, and if, while he had such dyna- mite in his possession or under his control, he was entirely innocent of the fact that such dynamite was to be used for an unlawful purpose by such other persons, defendant is not guilty of having the dynamite in his possession or under his control for the unlawful use charged in the first count, although the persons for whom defendant bought such dynamite may have used it for such unlawful purpose. Whether or not, however, the defendant was innocent of the use to which said dynamite was to be or was put are matters for you to determine under all the facts and circumstances of the case. Furthermore, to con- stitute the offense, as charged in the second count, of placing dynamite upon the company's premises, without its consent', it is essential that defendant should have placed it there, as alleged, ha^^ng the criminal or evil intent of doing so. If he had no such intent, he is not guilty. But if he had such intent and the other elements constituting the offense are proved, you will be warranted in finding defendant guilty on the second count. 4. Malice and intent. In order to show the possession of said dynamite by defendant for maliciously destroying the railway company's street ear barn, as alleged, in the first count, it is not necessary to show motives of personal malice or ill will by de- DYNAMITE — UNLAWFUL USE OR POSSESSION OP. 1425 fendant towards said company; but to show a wanton and willful disposition by defendant to injure the said railway company in the manner alleged without justification or excuse is all that is required. Malice and intent are operations of the mind, and are not usually proved by direct or positive evidence. In determining whether, if at all, there was malice, and whether there was a criminal intent on the part of the defendant in doing the acts charged in the indictment, if he committed such acts, or any of them, you will take into consideration all the facts and cir- cumstances attending the alleged transaction, including the declarations, if any, of the defendant, and all of the facts and circumstances in the case. 5. Alibi. One of the defenses introduced by the defendant is what is known in law as an alibi ; that is, that the defendant was at another place at the time of the commission of the crime charged in the indictment. The court instructs you that such a defense is as proper and as legitimate, if proved, as any other ; and all evidence bearing on that point should be carefully con- sidered by the jury. If, in view of all the evidence the jury have any reasonable doubt as to whether the defendant was in some other place when said crime charged in the indictment was committed, you should givt^ the defendant the benefit of the doubt and find him not guilty. The court instructs you further that the defendant need not prove such alibi by a preponderance of the evidence ; neither does he need to establish it beyond a reasonable doubt; but if the evidence, as introduced, creates in your mind a reasonji])le doubt as to the defendant's guilt, then your verdict should be not guilty, even though you should not be able to find that the alibi was fully proved. You will, therefore, look at all the evidence in the case and determine whether or not the accused might have been at the place he claims at the time shown, and yet might have committed the alleged crimes, or either of them charged in said indictment, and determine whether such evidence of alibi along with all the other evidence in the case, raises a reasonable doubt in your mind 1426 INSTRUCTIONS TO JURY. of the defendant's guilt. If it does not, the defense of alibi is not made out. If it does, the defendant is entitled to an acquittal. 6. Defendant under influence of cocaine. It is claimed on the part of the defendant that at the time the crime charged in the indictment are alleged to have been committed, the defendant was under the influence of a drug known as cocaine, and that he was on this account, and by reason of his mental infirmities pro- duced by disease, legally irresponsible for the acts or either of them. The court instructs you that every individual of mature years, charged with the commission of a crime, is presumed to be sane and to be responsible for the consequences of his own voluntary acts. The burden of proving that the defendant was not in a legal sense sane and responsible for his acts, is upon the defendant, and must be proved, to make it available as a defense, by a preponderance of the evidence. However, no man should be convicted and punished for crime unless he is a responsible moral agent. In order to constitute a crime, a man must have intelligence or capacity enough to have a criminal intent and purpose; and if his reason and mental powers are either so deficient that he has no will — no conscience or controlling mental power — or if through the overwhelming violence of mental disease, his intellectual power is obliterated, he is not a respon- sible moral agent, and is not punishable for criminal acts. Mere mental weakness, however, does not exempt one from responsi- bility for crime, when there is sufficient capacity to know that the act is wrong, and to abstain from its commission, although to exempt one from such responsibility it is not necessary that he shall have been totally deprived of his reason. Furthermore, the court instructs you that under our law the voluntary use of cocaine whereby one comes under its influence, is no excuse for the commission of a crime, short of actual insanity or loss of reason. One otherwise responsible for crime is not exempt from such responsibility by reason of his addiction to the use of cocaine at the time of its commission, unless the drug has produced disease which has so far perverted or de- DYNAMITE — UNLAWFUL USE OR POSSESSION OF. 1427 stroyed the mental faculties as to render the person so afflicted, incapable, by reason of such disease, of knowing the nature and consequences of the act, and of distinguishing between right and "wrong in its commission, or so far destroyed his will power as to be able to refrain from doing the act, if he had chosen to do so. Applying this rule, if you determine that the defendant com- mitted the alleged acts charged in either or both of said counts, you will inquire whether or not he was at the time addicted to the cocaine habit and under its influence. If you determine that the defendant was not addicted to the habit, or under its influence, you need not consider this feature further. But if you find that he was addicted to such habit, you will then inquire whether or not the drug itself, or it along with other mental infirmities, had produced a disease which so far perverted or destroyed his mental faculties as to render him incapable by reason of such disease or disordered condition, of knowing the nature and consequences of the act, or acts, and of distinguishing between right and wrong in their commission. If the drug itself, or it along Axath other mental infirmities, had not so affected him, you need not consider this feature further. But if the drug itself, or it along with other mental infirmities, had so affected him, he is not guilty. 7. Opinion evidence a^ to mental capacity. On the ques- tion of the defendant's legal responsibility and of the use and effect of cocaine, opinion evidence has been offered, and on these questions persons of experience in the medical pro- fession have been called, to whom questions embodying certain statements of facts in the case have been put, and upon w^hich statements of facts the experts have given their opinions. This is proper testimony for you to consider in determining the guilt or innocence of the accused. However, if the statements of facts as you find them to have been established by the testimony sub- stantially differ from the statements of fact as propounded by the experts and upon which they base their opinions, then the opinions are not entitled to any weight in determining the ques- tions involved in such statements. But if the questions to the experts embody the facts as you find them to exist from the 1428 INSTRUCTIONS TO JURY. testimony, then you should give them such weight as in your judgment, in the light of all the testimony, they would be entitled to. As heretofore stated, the burden of establishing the defense of legal irresponsibility, and by reason of the use of cocaine and mental infirmities of the defendant, is upon the defendant, and, to entitle him to an acquittal upon this ground, this defense must be established by a preponderance, that is to say, the greater weight of the evidence. However, if upon the whole testimony, including the evidence relating to legal irresponsibility by reason of the use of cocaine, and mental infirmities of the defendant, and the evidence relating to the defense of alibi, you have a reasonable doubt as to the defendant's guilt either upon the first or second counts of said accident, it will be your duty to acquit the defendant upon such count or counts as you may have such doubt. Gentlemen, I need not call your attention to the fact that you are not concerned with regard to the strike, or any of its inci- dents, or with the question of who was right or who Avas wrong in that controversy. The matter you have to determine is between the State of Ohio and this defendant. Is he guilty or not guilty of one or both of the counts charged in this indictment? If you find that the defendant, in this county, on or about the day of , 19 — , had dynamite in his possession or under his control for the unlawful use and with the intent as alleged in the indictment', to-wit, the unlawful use of maliciously destroying the South Street Car Bams belonging to the said Columbus Railway & Light Company, as charged, it will be your duty to find the defendant guilty upon the first count. But if it is not proved, either that the crime as charged M^as committed in this county, or that the defendant had the dynamite in his possession or under his control, as charged ; or that the defendant had it for the unlawful use, as charged, it will be your duty to find the defendant not guilty. Regarding the second count, the court instructs you that if you find that on or about the day of , 19 — , the defend- ant placed or deposited dynamite, as charged, on the premises, DYNAMITE — UNLAWFUL USE OR POSSESSION OF. 1429 to-wit, on the South Street Car Barns of the said Street Railway Company without its consent, as alleged, that he did it unlaw- fully and purposely, it will be your duty to find him guilty on the second count. But if you find that it is not proved either that the crime was committed in this county, or that the dynamite was placed on the premises of said railway company, as charged ; or, that it was done without the consent of the company, it will be your duty to find him not guilty.^ 1 State V. Strader, Franklin County Com. PL, Rogers, J. CHAPTER XCV. EJECTMENT— ADVERSE POSSESSION. SEC. SEC. 1692. What constitutes adverse pos- 1696. Lines between owners. session. 1697. Abandonment — What consti- 1693. It need not be held under tutes. color of title. 1698. Adverse possession may ex- 1694. Meaning of continuous pos- tend to what. session. 1699. Mistake in boundary line — 1695. Adverse possession — Occupa- Nature of occupancy. tion must be of some 1699a. Declarations as to owner- well-defined limits. ship. Sec. 1692. What constitutes adverse possession. The period of prescription in Ohio, by which one acquires an easement or title in land, is twenty-one years. This is called adverse possession, and what constitutes adverse possession is a question of fact for the jury to decide under proper instruc- tions by the court.^ It is not necessary to constitute adverse possession, that a person shall merely be in possession for a period of twenty-one years, but there are certain requisites that must accompany that possession, which will now be explained to you. The fact of possession per se, is only an introductory fact to a link in the chain of title by possession, and will not simply of itself, however long continued, bar the right of entry of him who was seized, and, of course, creates no positive title in any case. The reason of this is, that it may have been possession with permission ; and if the person in possession has offered to purchase the title of another claimant, it wdll not be adverse. To have the effect of creating title by adverse possession, the possession must not only have been actual, exclusive, open, and notorious, idth claim of title, but it must also have been adverse during the w^hole period 1430 EJECTMENT AND ADVERSE POSSESSION. 1431 of tAventy-one years. It is not necessary, however, tliat the party should live on the land, but only so he exercises absolute control over it. To constitute adverse possession, there must have been an intention on the part of the person in possession to claim title, or he must have claimed it as against others, by declarations or acts, that a failure of the owner to prosecute within the time limited, raises a presumption of an extinguishment or a sur- render of his claim.- 1 Tootle V. Clifton, 22 0. S. 252, 253. 2 Lane v. Kennedy, 13 (). S. 46, 47; Humphries v. Huffman, 33 O. S. 395. Sec. 1693. It need not be held under color of title. It is not an essential of the title acquired by adverse possession, that the party should have entered under color of title, nor that the possession be held under color of title. Where there is posses- sion of the requisite character, the question, whether there is color of title or not, is wholly immaterial.^ It is visible and adA-erse possession, with an intent to possess, that constitutes its adverse character, and not the remote motives or purposes of the occupant.- 1 Lessee of Paine v. Skinner, 8 O. 167; Yetzer t'. Thoman, 17 O. fS. 130; McNeeley v. Langan, 22 O. S. 37. 2 French ;;. Pearce, 8 Conn. 439; Humphries r. Huffman, 33 O. S. 402. Sec. 1694. Meaning of continuous possession. In order that it will constitute continuous possession, you are instructed that it is not essential that it shall be continuously lield and possessed by one person. That is, the possession will descend to the lieir of the possessor, without intcrruptiiit; the running of the statute. It is sufficient that the possession during such period was in the party claiming or those under whom he claims ; and, as to third persons against whom the possession was held adversely, it is immaterial, if successive transfers of the possession were in fact made, whether such transfers were by will, by deed, or by agreement, either written or verbal.^ 1 McNeeley v. Langan, 22 0. S. 32. 1432 INSTRUCTIONS TO JURY. Sec. 1695. Adverse possession — Occupation must be of some well-defined limits. Now I say to you on that point that the law provides that when there is continuous, uninterrupted, open, notorious, and adverse possession of land by a person for twenty-one years or more, such person has a right to the possession thereof; it operates to convey a complete title as much as any written conveyance, and extinguishes the right of possession to any other, although hold- ing the paper title. By these terms, continued, uninterrupted, is meant, it must not have been abandoned or lost during the twenty-one years ; by adverse is meant a possession in opposition to the legal title and real owner, and the occupation must be by some well-defined, certain limits, indicated by a substantial and real inclosure or something of a like notoijious character. It must be such as leaves no doubt as to what is included and as to what is intended as the limits. The kind of possession described is what defendant must show by a preponderance of testimony ; that he or those from whom he derives title had had for twenty-one years or more ; if he has done this, he is entitled to a verdict at your hands. ^ 1 NobV, J., in France v. Dexheimer, Sup. Ct.. tmreported, Cuyahoga Co. Sec. 1696. Lines between owners. Although the line between these two lots may by mutual mistake be laid different from the lot line, each being bounded by the lot-line in their deeds, if they or those from whom they claim title respectively occupied up to and acquiesced in the wrong line for a period of twenty-one years or more, the posses- sion of each being open, notorious, continued, and exclusive, that line will be the true line between them. The issue to be determined by you between the parties is, in the first place, where is the lot-line between these parties, and the burden of proof is upon the plaintiff to prove by a preponderance of testimony that it is where she claims it is, and she must establish her right to it independently of any weakness of the defendant's title. She must sustain her right to EJECTMENT AND ADVERSE POSSESSION. 1433 the strip of land by testimony which phices it in her independent of anyone else. It is for you to say, gentlemen of the jury, under all the testimony of the case, who is entitled to this strip of land under the rule of law I have given you, what is the true lot-line. If the plaintiff is right as to its location, what is the fact as to another line being established and acquiesced in by the parties and those from whom they claim title, what do the neighbors who have been acquainted with it twenty-one years tell you about the original location of the fence spoken of and as to its remain- ing in the same posiition siibstantiailly ever since? What light does the testimony as to the position of trees and surveyor's marks and monuments throw upon it? Do they indicate it has remained as it was or that it has been changed from time to time and the line altered in some parts ? All the testimony should have its proper weight ^\^th 3^ou in reaching a conclusion.^ 1 Xoble, J., in France r. Dexheinipr. Sup. Ct.. No. 189G. Cuyahoga Co. Sec. 1697. Abandonment — What constitutes. "The question of abandonment is one of fact and intention. Ceasing to cultivate a common field and a removal elsewhere do not make an abandonment; but to constitute an abandonment by the party it must be shown that he quit the property with the intention of no further claiming same, and the burden of showing the abandonment rests upon the one who sues." ^ 1 Tayon v. Laden, 3.3 Mo. 205. Sec. 1698. Adverse possession — Must extend to what. "Wliere a party enters upon land without a deed or other paper title containing specific descriptions of the land by metes and bounds, or without color of title to the premises, claiming to hold them adversely, his possession only extends to that part of the tract actually improved and occupied l)y him, and his entry in such case, upon a part of the premises, does not give him adverse possession to uninclosed and unimproved wood- land." » ' Humplirics v. nuffman, 33 O. S. 305. 1434 INSTRUCTIONS TO JURY. Sec. 1699. Mistake in boundary line — Nature of occupancy. Where one of two proprietors respectively of adjoining lines holds actual, notorious, continuous, and exclusive possession up to a certain line, though not originally the true one, for a period of twenty-one years, the statute of limitation applies in his favor, and against the adjoining proprietors, although such possession might have grown out of the mutual mistake of the parties respectively, in respect to the locality of what was originally the true line between them. Then I say to you as matter of law that if you find from the evidence in this ease that the plaintiff and those under whom he claims to have had actual, continuous, and exclusive possession of the land described in the petition, or any portion thereof, for a period of twenty-one years before the commencement of this action, he acquired title to the land so occupied as against the defendant and every other adult person. The occupancy necessary to acquire title by possession is such occupancy and use of land as the nature of the particular land would require. If it is a farm, the oecupancy would have to be such as a farmer would occupy, either by plowing, pasturing, mowing, or in such other ways as a farmer would usually use land. If it was city property, the occupancy must be such an occupancy as is usual for city property. * * * it will be important for you to determine from the evidence where the true line between the lands claimed by the plaintiff and the lands claimed by the defendant was. This is a question of fact for you to determine under all the evidence in the case. It will be impor- tant for you to determine whether the defendant has occupied any of the land described in the petition or not, and if he has, to what extent and how much of it he has occupied.^ iNye, J., in Edison v. Ranney. Sec. 1699a. Declarations as to ownership. Some evidence has been permitted to be given to you by the defendant as to what R. did and said while the owner was in possession of the lands now claimed by the defendant, by way of pointing out the boundaries of said land. This testimony was EJECTMENT AND ADVERSE POSSESSION. 1435 permitted to be given you for the purpose of showing where R. claimed his north line was, while he was such owner and in possession of the land which he thus claimed to own. His state- ments and acts should be given such weight as the statements and acts of owners of lands generally, and no more. If you find from other evidence that the line which the said R. pointed out and stated as his northerly line was not the true line, then you should disregard the line which he pointed out and adopt the one which you find to be the true line between the lands claimed by the plaintiff and the lands claimed by the defendant.^ 1 Nye, J., in Edison v. Ranney. CHAPTER XCVI. EMBEZZLEMENT. SEC. 1700. Venue where laid — Where in- tention to commit is formed. 1701. By treasurer of board of edu- cation. 1702. Using funds intending to re- pay. 1703. By public officer elected or appointed. 1. The statute. 2. A fraudulent appropria- tion. 8. Official capacity. SEC. 4. Agent of public officer. 5. Receipt of money by vir- tue of office. G. Circumstantial evidence. 7. Reputation of defendant. 1704. By agent of insurance com- pany. 1. Right of agent to com- missions. 2. Intent. 3. Flight and change of name. 4. Venue. Sec. 1700. Venue where laid — Where intention to commit is formed. "If you find that the defendant received and had this mone}' in his possession in H. County, and while it was so in his posses- sion in H. County, he formed the intention — the purpose — to appropriate the money to his own use, and in pursuance of that purpose, so formed in H. County, he did appropriate the same to his own use, either by expending the same in S. County or any other county or place, or if he did not expend it, but in pursuance of such intention so formed in H. County, he kept the money in his ovrn pocket with the intention of permanently depriving his employers and the owner thereof of said money, and, upon demand, with that intention, refused to pay it over, then in either case the crime would be committed in H. County. But if he received and had the money in his possession in H. County and carried the same into S. or any other county, and then for the first time formed the purpose to appropriate the money to his own use, and in pursuance of such intention he did 1436 EMBEZZLEMENT. 1437 appropriato the same to liis own use in such county, then the crime would not have been committed in H. County. If the defendant formed the purpose in H. County to convert the moneys or any of them mentioned in the indictment, but did not in fact convert them or any of them in II. County, he can not be convicted of embezzlement in this county. ' ' ^ 1 Campbell r. State. 35 0. S. 70. But see State v. Baxter, 8!) (). S. — . Sec. 1701. By treasurer of board of education. Embezzlement by a public officer is a fraudulent appropriation to his own use of the moneys or goods entrusted to his care by virtue of his office. Embezzlement by a public officer as applied to this ease, is an unlawful and fraudulent appropriation to his own use of the money entrusted to his care and held by him as such officer. It then becomes important for you to determine from the evidence whether the defendant unlawfully and frau- dulently converted to his own use the sum of $ , or any part of all the public money of the board of education of Town- ship, which came into his hands as treasurer of said board of education. In determining that question it will be proper for you to consider the manner in which he kept the money, the place where he kept it, what he did with it, if anything, and all the other facts and circumstances given you in evidence.^ 1 Nye, J., in State r. Wideman, ^Medina Co. Com. IMeas. Sec. 1702. Using- funds intending to repay. The crime charged in this indictment consists in the embezzl- ing, and in converting to his own use, the public money described in the indicttnent. If you find from the evidence that the defend- ant unlawfully used and converted to his own use the money described in the indictment, or any portion thereof, intending to replace it, the mere fact that he intended to replace it would not exonerate him from such unlawful taking, using, and con- verting to his own use any of the public money which came into his hands as treasurer of the board of education of Town- ship; and if lie did convert to his own use any of the money 1438 INSTRUCTIONS TO JURY. named and charged in the indictment in this case, which came into his hands as treasurer of the board of education of Township he would be guilty of embezzlement of as much of the said money as he thus converted to his own use.^ iNye, J., in State v. Wideman, Medina Co. Com. Pleas. Sec. 1703. By public officer elected or appointed. _. "^he statute. 2. A fraudulent wp prop riot ion. 3. Official capacity. 4. Agent of public officer. 5. Receipt of money hy virtue of office. 6. Circumstantial evidence. 7. Evidence of other similar acts. 8. Reputation of defendant. 1. The statute. The statute of the state under which the indict- ment is brought, is in the following language : "Wlioever being elected or appointed to an office of public trust or profit, or an agent, clerk, servant, or employe of such officer, or board thereof, embezzles or converts to his own use or conceals with such intent, anything of value that shall come into his possession by virtue of such office or employment, is guilty of embezzlement. ' ' 2. A fraudulent appropriation. Embezzlement by a public officer appointed or elected to an office, of public trust or profit, or by the agent of such officer, is a fraudulent appropriation to his own use by such officer or agent of some thing of value that has come into his possession by virtue of his office or employment. 3. Official capacity. Before the state will be entitled to a verdict of guilty at your hands, it must first be proven that the defendant was either an officer elected or appointed to an office of public trust or profit, or was the agent, clerk, servant or employe of such officer. The superintendent of banks of the state of Ohio is an officer appointed by the governor of the state with the advice and consent of the senate and he occupies an office of public trust. EMBEZZLEMENT. 1439 The law authorizes the state superintendent of banks with the approval of the governor, to employ the necessary clerks and examiners to assist him in the discharge of the duties imposed upon him by law. The law also authorizes the state superintend- ent of banks to appoint one or more special deputy superintend- ents of banks, under his hand and oflScial seal, as agent or agents, to assist him in the duty of liquidation of banks and distribution of their ass.is. The indictment in this case charges that the money which it is charged, was embezzled by the defendant, together with other moneys, came into his possession by virtue of his office of examiner and deputy superintendent of banks, and it is also stated that this is an office of public trust in the state of Ohio. 4. Agents of public officer. The court says to you as a matter of law, that while the office of state superintendent of banks is an office of public trust, that examiners and deputy superintend- ents of banks are not officers holding or occupying an office of public trust, but they are under the law of this state, the agents of such officers. It is, however, not material that the indictment characterizes the position or employment of examiner and deputj' superintendent of banks as an office of public trust. If the defendant in this case was at the time stated in the indictment an examiner of banks, duly appointed, qualified and acting as such, and was also a deputy superintendent of banks duly appointed, qualified and acting as such, and if he took possession of the money which it is charged he embezzled by virtue of his position or appointment and qualifications as examiner and deputy superintendent of banks, or by virtue of his position, appointment and qualification in either capacity, and embezzled the money charged in the indictment to have been embezzled after it came into his possession by virtue of his appointment and employment, he is guilty of the crime charged, because under the statute the offense may be committed either l)y an officer appointed to an office of public trust or by his agent, and it is not material that the indictment may have characterized the position of examiner and deputy superintendent of banks as an office of public trust. 1440 INSTRUCTIONS TO JURY. 5. Receipt of money hy virtue of office. The indictment charges as a fact that the defendant took possession of the money by virtue of his appointment and qualilication as examiner and deputy superintendent of banks, and if he did take possession of the money under and by virtue of his appointment and qualification to these positions of agent or employe of the state superintendent of banks, or by virtue of his appointment and qualification as either examiner or deputy superintendent, he falls within the terms of the statute, and if he embezzled the money coming into his possession by reason of his position as such agent of the state superintendent of banks, he is guilty of the crime charged in the indictment. If you find that the defendant was at the time in question duly appointed, qualified and acting as examiner of banks and deputy superintendent of banks, you will inquire whether the money charged to have been embezzled, came into his possession by virtue of his holding such position or positions under the state superintendent of banks. To entitle the state to a conviction, it must be proven that the money charged to have been embezzled came into his posses- sion by virtue of his occupying both positions at the time in question. Before the defendant can be found guilty of the crime charged, it must not only be proven that he occupied the position of examiner of banks and deputy superintendent of banks, one or both, and that the money charged to have been embezzled came into his possession by virtue of his occupying this position or these positions of agent or employe of the state superintendent of banks, but it must further be proven that after the money came into his possession, he embezzled or converted it to his own use. That is, to constitute the crime charged in the indict- ment, it must appear that he appropriated the money to his own use, with the fraudulent intent and purpose on his part to permanently deprive the owner, to-wit, T. C. S. & T. Co., of the money which belonged to it. It must also be proven that the money belonged to the said T. C. S. & T. Co. It must also be EMBEZZLEMENT. 1441 proven that tlie defendant thus fraudulently converted the money to his own use in the county of Franklin and state of Ohio. These, gentlemen of the jury, are the necessary facts which must be proven to warrant a conviction of the defendant, and these necessary facts or elements of the crime must each and all be proven beyond a reasonable doubt to warrant a conviction of the defendant. 6. Circumstantial evidence. In this case, gentlemen of the jury, the state relies upon what is commonly known as circum- stantial evidence, to establish the guilt of the defendant of the crime charged against him.. In criminal eases the evidence may be either direct or circum- stantial, or both. If a witness sees or hears or in some way through the use of his senses, acquires knowledge of the exist- ence of a fact to be proven and testifies to it, that is direct evidence. But it is not always possible in criminal cases to thus establish the guilt of persons accused, because often times there are no witnesses who see or hear the ultimate fact to be proven. Nor is direct evidence necessary, and the law regards circum- stantial evidence as equally competent' with direct evidence, the requirement of the law as to either kind of evidence being tliat it shall be sufficient to satisfy the mind beyond a reasonable doubt of guilt, to warrant a finding of guilty. Circumstantial evidence is the proof of facts Avhieh stand in such relation to the ultimate fact to be proved, that such ultimate fact may be inferred from the fact proven. Each and every fact from which the existence of the ultimate fact to be proven, is sought to be inferred, must be proven beyond a reasonable doubt and the conclusion or inference of guilt should flow naturally from the facts proven. ]\Tere opportunity to commit (■'•[me is not alone sufficient to prove that crime was committed. If the facts proven can be fairly and reasonably harmonized with the innocence of the defendant, they should be so reeon- eiled. But if after a careful and candid consideration, and weighing of all the facts proven, they lead naturally to the eon- elusion that the defendant is guilty, and exclude every reasonable 1442 DSrSTBUCTIONS TO JURY. hypothesis other than that of the guilt of the defendant, and satisfy your minds beyond a reasonable doubt of his guilt, then you should find the defendant to be guilty. But if after such careful and candid consideration and weighing of all the evi- dence in the case you are not satisfied of the guilt of the defend- ant beyond a reasonable doubt, your verdict should be not guilty. 7. Evidence of other similar acts. The state has offered evi- dence in this case for the purpose of establishing the fact that on other occasions the defendant was guilty of the offense of em- bezzling money from other banks. The object and purpose of this evidence is not to prove that the defendant appropriated the money of the T. C. S. & T. Co., but only for the purpose of estab- lishing the intent with which the defendant took or appropriated the money of T. C. S. & T. Co., if you find he did so take or ap- propriate the money of T. C. S. & T. Co. You are not, therefore, at liberty to consider this evidence as tending to prove that the defendant did take or appropriate the money of T. C. S. & T. Co. ; but if you reach the conclusion under the rules stated to you that he did so take or appropriate the money of T. C. S. & T. Co. and you further find from the evidence beyond a reasonable doubt that he embezzled money from other banks on other occasions, then you have a right to consider such other embezzlement or embezzlements on the question of the intent or purpose of the defendant in taking the money of T. C. S. & T. Co. 8. Reputation of defendant. The defendant has offered evi- dence tending to establish the fact that prior to the commission of this offense he bore a good reputation in the community where he lived. It is your duty to consider this evidence along with all the other evidence in the case on the question of the guilt or innocence of the defendant. A defendant in a criminal case has a right to give evidence concerning his former good reputa- tion and character. This is not because previous good reputa- tion and character are any defense against the charge of crimin- ality. Its object and purpose is that it may be placed in the scales by the jury when weighing the evidence to determine the question of the guilt or innocence of the defendant, and as tending to raise a presumption that one possessing such a EMBEZZLEMENT. 1443 previous good reputation ;md character would not be likely to commit the crime charged. But it is the comnion observation of all men that temptation will at times subvert character and overcome integrity and fidelity to duty and lead men whose past lives have given no indication of such weakness, into the com- mission of crime. But it is also the common observation of all men that men of good reputation and character are not so likely to commit crime as those whose past lives have given plain indication of their want of integrity and fidelity to duty. It is your duty therefore, gentlemen of the jury, to consider this evidence along with all the other evidence in the case and give to it such weight as in your judgment it is entitled to receive in determining the question of the guilt or innocence of the defend- ant of the crime charged against him.^ 1 State of Ohio v. C. S. Baxter, Com. Pleas Court. Franklin County, O., Bigger, J. Sec. 1704. By agent of insurance company. 1. Right of agent to commissions. 2. Intent. 3. Flight and change of name. 4. Venue. The indictment charges that the defendant was the agent of the insurance company, and that it was in this capacity of agent that he embezzled the money in question. The defendant does not deny that he was acting in the capacity of agent of the insurance company, but on the contrary he admits that he was acting as agent of the company, and also admits that as sueli agent he collected this money that ho is charged with embezzling. But he says that he was entitled to retain it under the terms of his contract %vith the insurance company. It becomes your duty, therefore, gentlemen of the jury, to determine what the contract was between the insurance company and the defendant, and til is you must do from a consideration of all the evidence in the cnse. 1. Right of agent to commissions. The defendant had a right to retain his commissions which the contract allowed him aa 1444 INSTRUCTIONS TO JURY. compensation for the sale of stock in the insurance company from the money received from the sale of the stock, but he would not have a right to retain commissions due him under his agreement to act as agent of the insurance company in the sale of life insurance from the moneys received for the sale of stock, unless you find that under the terms of the contract he was to be permitted to retain his commissions earned as agent for the sale of life insurance from moneys received from the sale of the stock. But if the contract permitted him to retain his commissions from any moneys coming into his hands, without regard to whether it came from the permiums paid for life insurance or the moneys derived from the sale of stock, then he would have a right to retain any commissions due him for acting in either selling stock or selling insurance, from the moneys derived from the sale of stock. It will also be important for you to consider what amount was due to him as commissions. The defendant claims that the insurance company owed him for commissions on orders for stock, which the evidence shows was never paid for by the persons who ordered it. What was the agreement upon that point? Was he to receive his commission upon obtaining the order, or only upon payment for the stock ? If he was to receive his commissions as soon as he had obtained the order for the stock, then he would be entitled to his commissions whether the persons ordering it paid for it or did not pay for it. But if he was to receive the commission only in case the persons ordering it paid for it, then he could not claim commissions unless the stock was paid for. 2. Intent. Criminal intent is an essential element of the crime charged, and before the defendant can be found guilty it must also appear, not only that the defendant converted this money to his own use, or some part of it, but that he so con- verted it with the criminal intent of depriving the owner, the insurance company, of it. Furthermore, as a felonious or criminal intent is an essential element of this crime, if you find that the defendant in good faith believed— that under his con- EMBEZZLEMENT. 1445 tract he was entitled to retain all this monej- in payment of commissions due him, he will not be guilt}' of the crime charged, although he may have been mistaken in that belief. But if he honestly believed he was entitled to retain the entire amount liere charged to have been embezzled, while as to all of it or some part of it he was not in fact entitled to retain it, then although the company could recover it back in a civil suit he can not be held criminally liable, and for the reason stated, that criminal intent is an essential element of the offense charged. Intention, gentlemen of the jury, is a state of the mind and can ordinarily only be arrived at by a consideration of all the evidence, and the facts and circumstances, with the transac- tions, including any statements which the defendant himself may have made upon the subject. 3. Flight and change of name. The undisputed evidence shows, gentlemen of the jury, that the defendant left shortly after he received the last of this money, and removed to the state of Indiana, and that he was there arrested, and that he had assumed another name. These are circumstances which you have a right to consider as reflecting upon the condition of his mind at the time when he received this money, and upon the f'UGsticn of his intention and belief at the time he received the money. The weight to be given to it is a question which must be left to your sound judgment and discretion, and to be con- sidered in connection with all the other facts and circumstances disclosed by the evidence. You will also observe, gentlemen of the jury, that the crime charged in this indictment can not be made against persons under the age of eighteen years, or against an apprentice. The defendant has testified that he is thirty-two or thirty-three years — thirty-three years of age. As only minors can be appren- tices under the law of this state, it sufficiently appears therefore that tho defendant is neither an apprentice nor under the age of eighteon yoars. If you find tliat the defendant did conniiit embezzlement of this money, or some part of it, it will be your duty to inquire 1446 INSTRUCTIONS TO JURY. whether the offense was committed in this county of Franklin; because the defendant can not be found guilty unless the offense was committed in this county. 4. Venue. If you find the fact to be that the defendant under the terms of the contract was required to make report to the insurance company in this county, and to account to it at its office here in the city of Columbus, Franklin county, for the moneys collected by him, and if you further find that in the discharge of this duty he corresponded with the insurance company, sending letters to it and receiving letters from it concerning these moneys which he had collected, and if on receipt of communications from the company demanding settle- ment he sent checks in settlement or partial settlement of his account to the insurance company, in this county, which checks were returned to the company unpaid for want of funds in the bank on which they were drawn, then I say to you that you will be warranted in finding that the offense was committed in this county. But if you find the fact to be that the defendant under the terms of his contract was required to account to another agent of the insurance company, not located in this county, then he can not be found guilty. If you find that the defendant is guilty as charged, it will be your duty to determine how much of the money belonging to the insurance company was embezzled by the defendant. Before the defendant can be found guilty the proof must satisfy you beyond a reasonable doubt of the guilt of the defendant, and that he did embezzle either all of this money, or some specified portion of it. It is not essential to a conviction that you should find that he embezzled all that is charged in the indictment, but the proof must satisfy you that as to some portion of it he committed the crime of embezzlement ; and you will, if you find the defendant to be guilty, return in your verdict the amount which you find he did embezzle.^ 1 State V. Daiigherty. alias Brown, Court of Com. Pleas. Franklin County, Ohio, Bijrger. J. See ante, sec. 1700; Campbell v. State, 35 O. S. 70 as to elements of crime and venue; also State v. Baxter, 89 O. S. — . CHAPTER XCVn. EMINENT DOMAIN— APPROPRIATION OF PROPERTY. SEC. SEC. 1705. Right of way for railway purposes — Constitutional provisions. 1713. 1706. Rules for assessing compensa- tion. 1714. 1707. Opinions of witnesses as to value of property. 1715. 1708. Expert testimony. 1709. Assessment of compensation for land — Rules concern- 1716. ing — ^Market value. 1717. 1710. Right of public to improve and use public highway — Construction of rail- road in highway a new 1718. use. 1711. Appropriation for telegraph line. 1719, 1712. Drainage law — Object of. What use will justify taking private property for drainage. Same — Benefits to private in- dividuals for cultivation not sufficient. Drainage proceedings — Bur- den as to question of use. Same continued — Number of petitioners. Same continued — Determina- tion of line of construc- tion of ditch — Considera- tions to be observed. Same continued — Compensa- tion for lands taken. Same continued — ^View of route by jury. Sec. 1705. Right of way for railway purposes — Constitutional provisions. The P., P. & F. Railway Company, the plaintiff in this pro- ceeding, filed its petition herein to appropriate to its uses and ownership the premises described therein, and which you have already inspected and examined. It is the right of the plain- tiff to take this land, but before this can be done the value thereof must be found and paid in money. The constitution of our state provides that no right of way shall be appropriated to the use of any corporation until full compensation therefor bo first paid in money, or first secured by a deposit of money to the owner, irrespective of any benefit from any improvement by such corporation, which compensation 1447 1448 INSTRUCTIONS TO JURY. shall be ascertained by a jury of twelve men in a court of record, as shall be prescribed by law.^ iGeo. H. Shepard, Probate Judge. Affirmed in P., P. & F. E,y. Co. v. Paine. Sec. 1706. Rules for assessing compensation. By reason of the provision of the law, made under this clause of the constitution, you have been summoned, empaneled and sworn to render full compensation to this defendant for the land sought to be taken from him in this proceeding. The only duty then devolving upon you in this case is to ascertain and declare by your verdict, how much money will make full com- pensation to this defendant for the premises described in the petition, and which are sought to be taken by the plaintiff. We say to you that the premises sought to be appropriated extend to the center of the river, subject to the rights of the public to use the river. We say to you that full compensation, in this case, means the fair cash market value of this land as it is at the present time and as you viewed it, without any regard to the causes that may have contributed to make up its value. By fair cash value is meant as much as the owner might fairly expect to be able to sell it for to others, if it were not taken by the plaintiff. Such a price as it would bring if put in the market. Not what it would bring at a forced sale, or under peculiar circumstances, but such sum as it would bring in the market, that is to persons generally, if those desiring to purchase were found who were willing to pay its just and true value. We say to you that the necessity of the plaintiff to have these premises, nor the unwillingness of the defendant to part with them should have no consideration in arriving at your verdict. Neither of these constitute any element of market value. It is the market value as contradistinguished from any special value to the plaintiff, or any other corporation or to any individual. You should consider the location of the premises in question, the best purposes for which they are or may be used, their surround- EMINENT DOMAIN APPROPRIATION OF PROPERTY, 1449 ings, their present condition, with reference to arriving at fair market value. If you Hud that these premises have any special value, for any purpose, whether it is for the purpose for which it is now used or for any other purpose, which affects its value in the market, you may take that into consideration. You are under no obligation to consider the bare value of the land, with the value of the filling and docks thereon added. The value should be considered with reference to the value as a whole as it is there now, for the best purposes to which it may be applied. The nature and condition of the harbor on which these premises are located, the business done on the premises and in the locality, nature of the improvements on this land, its general availability, may be considered by you in your deliberations. The value is to be estimated, having regard to the existing business and wants of the community, or such as may be reasonably expected in the near future.^ 1 Geo. H. Shepard, P. J. Approved in P., P. & F. Ry. Co. v. Paine, by cir- cuit and supreme courts. We tliink a more full explanation might be given the jury as to what kind of compensation is contemplated by the constitution, and so the following is appended. Note on Allowance of Benefits. The jury must consider the real value of the realty, may take Into account not only the present purpose to which the land is applied, but also any other beneficial use to which, in the course of events, at no remote period, it may be applied. 30 O. S. 111. It is the actual as distinguished from the speculative loss that must guide the jury. 1" e jury must consider the real value of the land taken, the dimin- ished value of the remainder, and may for that purpose take into account, not only the purposes to which the land is or has been applied, but any other beneficial purpose to which it may be applied, which would affect the amount of compensation or damages. 30 O. S. 108. That is what is said in the Longworth case (30 O. S. 108), and would seem to permit benefits from the proposed work to be taken into consideration in estimating the compensation or damages to be awarded. In W. L. B. 253, and in 2!) W. L. P. 260. it is held that special benefits can be considered so far as to offset damages to property remaining; that special benefits may be considered. ITiis matter is regulated by constitutional provisions. Art. 1, sec. 19, and Art. 13, sec. 5, the first requiring compensation to be made without deduction for benefits, when the property is appropriated to a public 1450 INSTRUCTIONS TO JURY. use, and the other providing for compensation irrespective of benefits, where it is taken by a corporation for a right of way, which two provisions are held in Giesy v. R. R. Co., 4 0. S. 309, in legal effect to be identical. Whether, therefore, property is appropriated directly by the public or through tlie intervention of a corporation, the owner is entitled to receive its fair market value at the time it is taken — as much as lie might be able to sell it to others for, if it was not taken; and that this amount (says Judge Ranney, 4 0. S. 332) is not to be increased from the necessity of the public, or the corporation or the public to have it, on the one hand; nor diminished by any necessity of the owner to dispose of it, on the other. It is to be valued precisely as it would be appraised on sale on execution, or by an executor or guardian; and without regard to any external causes tliat may have contributed to make up its present value. The jury are not required to consider how much, nor permitted to make any use of the fact that it may have increased in value by the proposal or construction of the work for which it is taken. To allow this to be done would not only be unjust, but would effect a partial revival of the very abuse which it was a leading purpose of these constitu- tional provisions to correct. Judge Ranney says that: "It would be unjust, because it establishes for a corporation what is done for no one else — a sort of right in the ])roperty of others, to the re- flected benefits of its improvements; itself submitting to no reci- procity by affording to others a compensation for the effect of their improvements upon the property of the corporation. And it is doubly unjust where, as must very often happen, the increase in value accrued to the benefit of the former owner, and has been bought and paid for by the present holder, from Avliom the property is taken at a diminished price." The language of the constitution is: "Until full compensation — irrespective of any benefit from any improvement proposed by such corporation." It seems perfectly plain that this intended that the benefits which the remainder of tlie property might derive from the advantages of the railroad, should not be taken into account as against the value of the land taken. But as said in R. R. Co. v. Collett, 6 0. S. 186, there are two kinds of benefits accruing from the construction of a railroad to an owner of land through whicli it passes. First: Gen- eral benefits, or such as accrue to the community, or the vicinity at large, such as increased facilities for transportation and travel, and the building up of towns and consequent enhancement of the value of lands and town lots. Second: Special benefits, or such a3 accrue directly and solely to the owner of the lands from which the right of way is taken; as when the excavation of the railroad track has the effect to drain the morass, and thus to transform what was a worthless swamp into valuable, arable land, or to open up and improve a watercourse. EMIXEXT DOMAIN — APPROPRIATION OF PROPERTY. 1451 It was the express design of the constitution to exclude general benefits from consideration. But it is perfectly reasonable that after full compensation for the land actually appropriated for the right of way, in view of all its uses and relations, without deducting for benefits of any kind, the jury may in their estimate and assessment consider incidental damages to other lands of the owner from the construction of the road, and make allowance for incidental benefits. This the court in the 6 0. S. 186, refrained from deciding. The rule then seems to be: General benefits accruing from tlie work can not be considered to deduct the compensation. Special benefits may, aft«r full compensation allowed, be taken into consideration to offset other damages to otlier lands. Sec. 1707. Opinions of witnesses as to value of property. Having called your attention to what is meant by '^full com- pensation," which the law and constitution guarantees to this defendant, we come now to consider the means for arriving at the rest. It is a general rule in law that witnesses can only state facts Avithin their knowledge. In this ease, however, wit- nesses have been called to give their opinions concerning the value of the premises in question, and from these opinions the jury form its opinion. You are not bound, however, to take these opinions for more than you consider them worth. Opin- ions, like most everything else, vary in value, and like other things are dependent upon something else for their worth. It is the value of the opinions of the witnesses that have testified in this case that you should consider in arriving at tlie market value of the premises. We say to you that one of the chief elements in the value of an opinion is the knowh'dge which the witness has of the subject matter of whicli he testifies. Not the knowledge which he professes, but that which lie actually pos- sesses. If the witness has no more knowledge of the subject than men generally possess, or the juror possesses, then his opinion is no better. You are, therefore, in the case now before you, to look well to the foundation of the opinion, each and every witness that has been called. What means has he of knowing about the value of this land? What opportunities have been offered him ? 1452 INSTRUCTIONS TO JURY. Another element in the value of an opinion is its freedom from interest, bias, or feeling. These are so apt to mould, fashion, and foster an opinion, on that, great caution should be taken in receiving an opinion where these things exist and abound. We have said thus much that you may the more intelligently understand the application of the law to the evidence in this case and which must be considered by you.^ 1 Geo. H. Shepard, P. J., iu P. P. & F. Ry. Co. v. Paine, approved by Cir- cuit and Supreme Courts. Ko. 3024 S. C. Sec. 1708. Expert testimony. The parties in this case have called as witnesses what are known in law as non-professional experts. This is a class of persons who, l^y their especial means of observation or peculiar advantages, have better or more extended means of knowing of the value of the premises in controversy, and it is your province to give each and every witness produced just such weight and credit as you think he is entitled. You should carefully inquire into his means of knowledge, what oppor- tunity he has for observing and ascertaining the value of this land, what feeling or prejudice he has in the case, what interest in the proceedings. Sec. 1709. Assessment of compensation for land — Rules con- cerning — Market value. You are sworn to justly and impartially assess, according to your best judgment, the amount of compensation due to the owner of this land in this case. This is the question, and the only one for you to determine. But in the determination of tliis question there are two ways you are to consider it. First, you should find what the land actually taken and used by the railroad company is worth; that is, this strip of land fifty feet in width and extending across the whole tract, con- taining, as the petition avers, three and 30-100 acres of land. EMINENT DOMAIN — APPROPRIATION OF PROPERTY. 1453 What is this L^iid worth? Not as a strip severed and cut out of the whoh' tract, but what is it worth as a part of the whole tract, taken in connection with it, and without the railroad upon it? Having found what the land taken, that is, the three and 30-100 acres, is worth, then you are to find how much less valuable the remaining part of said land will be rendered by reason of the taking of the strip of land out of it and using the same for building and operating thereon a railroad, as it is now being occupied. That is, you are to say what the damage is, if any. which tliis land-owner sustains by reason of the construction of this railroad across his land. You were per- mitted to go and see for yourselves the property of the plaintiff and the location of the railroad across the same. The road having been already constructed, you are the better enabled to see just how it affects the remaining part of plaintiff's laud. You are to find the actual or market value of the land taken ; the actual, as distinguished from any speculative loss the land- owner may sustain. This is the rule that must guide you. But I say to you that you have a right to consider and take into account not only the present use of the land and its value for that purpose, but also any other more beneficial purpose to which, in the course of events at no remote period, it may be applied. A map or plat has been offered in evidence for the purpose of showing the location of the property and the course of the railroad through the same, and its availability for subdivision into lots. For this purpose only the map is admitted and can be considered as evidence by you, and in this way you may consider it. If you find from the evidence that this land, or a part of it, is available for such subdivision into lots, you should take this fact into account. But it is the value for so dividing, and not the value of the lots when tlie division has in fact been made. The plaintiff' is entithnl to a compensatory and not a specu- lative remuneration for the land taken, and for the diminution, 1454 INSTRUCTIONS TO JURY. if any, in value to the remainder of the land occasioned by the appropriation of the land taken for the use of a railroad; and the difference between the actual value of the plaintiff's prop- erty without the railroad, and the value of the same property with the railroad as located, is full compensation, and all to which the plaintiff is entitled. In arriving at the amount of compensation to be awarded to the plaintiff, you must not take into consideration facts of a contingent and prospective char- acter, such as the probable amount that may be derived from sales of the property when hereafter divided into building lots and sold as such lots; but you must ascertain the value of the land taken, and diminution in value of the remainder, or injury thereto, occasioned by the taking in view of its present character, situation and surroundings. It is the value at the time of the commencement of these pro- ceedings, that is, the present term. The duty devolved on you in this case is to determine and assess the fair market value of the land which the proof shows you has been taken, as w^ell as the diminution in value at their fair market price of the residue of the lands not taken, and you can not make any use of the fact that the land is increased in value by the construction of the proposed railroad upon it, nor can you make any use of the fact, if it be a fact, that after the taking and the construction of the railroad upon it, manufac- turing works are located upon a part of the tract of which at the time of the taking there was no existence, nor probability of such location. If you find from the evidence that a portion of said tract, described in the petition as one hundred and sixty-three acres, has been laid out into lots, separated from the balance of the tract and sold, such lots or tracts so cut off and sold should not be considered by you as a part of the property of the plaintiff, or as in any way affecting his rights in this ease.^ 1 From P. & W. R. R. Co. v. Perkins, Supreme Court, unreported. No. 1710. EMINENT DOMAIN — APPROPRIATION OF I'ROPERTY. 1455 Sec. 1710. Right of public to improve and use a public high- way — Construction of railroad in highway a new use. "As between the public and the owner of land upon which a common highway is established it is settled that the public has a right to improve and use the public highway in the man- ner and for the purposes contemplated at the time it was estab- lished. The right to improve includes the power to grade, bridge, gravel, or plank the read in such a manner as to make it most convenient and safe for use by the public for the pur- poses of travel and transportation in the customary manner, which is well understood to be by the locomotion of man and beast, and by vehicles drawn by animals, without fixed tracks or rails to which such vehicles are confined when in motion. These constitute the easement which the public acquires by appropriating land for the right of way for a highway, and these, in legal contemplation, are what the owTier is to receive compensation for when his land is appropriated for this pur- pose. The fee of the land remains in the owner; he is taxed upon it ; and when the use or easement in the public ceases it reverts to him free from incumbrance. "In the exercise of the right of eminent domain, the state, through the general assembly, may delegate to a railroad cor- poration the power to appropriate a right of way for its road along and upon a public highway. * * * In such case, the rights of the public and the rights of the owner are entirely distinct; and the consent, expressed or implied, of one to the appropriation would not bind or affect the rights of the other. * * * The railroad company, by occupying the highway, constructing its track, and operating its trains thereon by steam motive power, completely diverted the highway from the us(^s and purposes for which it was established. This new use, to which the liighway has been diverted, imposes burdens on thp land that are entirely different from, find in addition to, thosr that were imposed by the highway. Tlie right to so divert tho use, and impose additional l)urdens on tlie land, could only ho acquired by the corporation by agreement with the owner, or 1456 INSTRUCTIONS TO JURY. by appropriating and making compensation therefor in the mode prescribed by law. ' ' ^ 1 Daily v. State, 51 O. S. 348. Sec. 1711. Appropriation for telegraph line. "Upon the question as to the rights of the telegraph com- pany, the court says to you that at the time of the erection of the poles and the construction of the telegraph line, whether in 1882 or in 1884, the land upon which this highway was situ- ated was the property of ]\Ir, T., subject to the right of way for public use for a highway; that is, for travel and keeping it in repair as a highway. "As between Mr. T. and other individuals or corporations, it could be used for no other purpose without entitling liim to compensation for such use, and the entry of this telegraph com- pany upon his land without compensation to him or without an agreement between him and such corporation, if you find this corporation did so enter, was not a rightful entry or occu- pancy; and as to the trees growing upon his land at the time such company constructed its lines, as between him and such corporation, he had the right to have the trees remain and grow there without injury, whether such injury was necessary or not to the use of the lines of such telegraph company. The United States could not, nor has it attempted to take away by any statute that right. Mr. T.'s right to maintain the trees in the ordinary way was an absolute right, and this right could be taken from him in no way until such time as they acquired the right to maintain such lines by prescription, which means actual occupancy for twenty-one years or more, or by appropriation or agreement ; and for this company, by its agents, without first acquiring the right, to enter upon this land and to cut the trees growing thereon would be proceeding without lawful authority. ' '^ 1 Approved in Daily v. State, 51 O. S. 348. Sec. 1712. Drainage law — Object of. As to the first proposition the court will instruct you that the object of the law is to provide means for drainage whenever EMINENT DOMAIN — APPROPRIATION OF PROPERTY. 1457 the public health, convenience or welfare require it. It is not essential that the pubJic at large shall be benefited, but only that part of the public affected by want of proper drainage, or by the improvement to be made. The injury from want of drainage and the benefit to be derived from the ditch are neces- sarily local in their nature. Public welfare, health and con- venience in this connection are terms used in contradistinction from mere private benefit. A nuisance is said to be public when it affects the surrounding community generally, and impairs the rights of neighboring residents as members of the public, and private when it especially injures individuals. The mere fact that the proposed ditch would enable the parties to raise more corn will not authorize a finding in favor of the establishment of the ditch.^ 1 Marsh v. Phelan, Clark Co. Approved by C. C. and S. C. Sec. 1713. What use will justify taking private property for drainage. The use that will justify the taking of private property by the power of eminent domain is the use for the government, the general public, or some portion of it, and not the use by or for particular individuals, or for the benefit of certiiin estates. The use may be limited to the inhabitants of a small locality; but the benefit must be in common and not to a very few persons and estates. The property of each individual conduces in a certain sense to the public welfare, but this fact is not sufficient reason alone for taking other property to increase the prosperity of individual men. The drainage of marshes and ponds may be for the promotion of the public health, and so become a public object; but the drainage of farms to render them more productive, alone, is not such an object. The fact that there are other public ditches near does not affect the right to locate the proposed ditch, if the public health, convenience or welfare demand the proposed ditch. Neither is 1458 ESrSTBUCTIONS TO JURY. it the length of a proposed ditch, but the extent of the drainage to be affected by it that determines the power to establish it. The location of one ditch by the trustees of the county com- missioners to drain certain territory will not prevent the estab- lishment of other ditches to drain the same territory, provided that the public health, convenience or welfare demands such ditch. The jury shall take into consideration the testimony tending to show that the proposed ditch is located upon the line of a ditch located, established and kept open by the township trustees of township, county, 0., in determining the ques- tion as to whether the ditch petitioned for will be conducive to the public health, welfare and convenience; and also, whether the route thereof is practicable.^ 1 Marsh v. Phelan. Approved by circuit and supreme courts. Sec. 1714. Same — Benefits to private individuals for cultiva- tion not sufiicient. The mere fact that the ditch might enable A. P. to raise larger or better crops, or even to cultivate a part of his land which he could not before cultivate, is a fact going to show that he would be privately benefited, but this is not sufficient to author- ize you to return a verdict finding that said ditch will be con- ducive to the public health, welfare and convenience. The evi- dence derived from your view of the premises and the testimony of witnesses must show you that the establishment of said ditch will be conducive to the public health, convenience and welfare without regard to private benefits before you can return a verdict in favor of the establishment of said ditch. The advantage, convenience or welfare of one or more individuals is not sufficient reason for the establishment of a public ditch for which private property can be taken and assessments made to pay therefor. Even if it appears that the proposed ditch will only advan- tageously drain the lands of A. P., or other individuals, so that EMINENT DOMAIN APPROPRIATION OP PROPERTY. 1459 their lands will be better adapted to agriculture, or rendered more valuable in any way, this will not be sufficient to authorize you to find in favor of said ditch. To do so, it must affirma- tively appear to you from your view of the route and the testi- mony of witnesses, that the community generally about said proposed ditch will be benefited in health, convenience or welfare by the establishment of the same. If said ditch does not affect the community generally, but only benefits the property of certain individuals, it will be your duty to find that said ditch will not be conducive to the public health, convenience or wel- fare.^ 1 Marsh r. Phelan. Approved by C. C. and S. C. Sec. 1715. Drainage proceedings — Bxtrden as to questions of use. The burden of proof on the questions as to whether the pro- posed ditch will be conducive to the public health, convenience or welfare, is upon the party seeking the establishment thereof, and if you do not find by a preponderance of the evidence, from your view of the premises and the testimony of witnesses that the proposed ditch will conduce to the health, convenience or welfare of the public generally in the vicinity of the same, it will be your duty to find that said ditch will not be conducive to the public health, convenience or welfare.^ 1 Marsh v. Phelan. Approved by C. C. and S. C. Sec. 1716. Same continued — Number of petitioners. One petitioner is sufficient, and in order for the ditch to be for the public health, convenience or welfare, the whole land from which the benefit is to be derived may be owned by one person only. So, if you find, under the rules stated, that the proposed ditch would better drain the land of A. P., and thereby be conducive to the public health, convenience or welfare, it will be your duty to find in favor of tht; ditch.* 1 Marsh v. Phelan. Approved by C. C. and 8. C. 1460 INSTRUCTIONS TO JURY. Sec. 1717. Same continued — Determination of line of con- struction of ditch — Considerations to be ob- served. You are to determine whether the route of the proposed ditch is a practical one — that is, you are to say whether or not if the ditch be constructed upon the line and route as determined upon by the commissioners it will reasonably meet the ends and objects for which the construction has been sought. In determining this matter, you should consider the route as located, in relation to the surrounding lands, the outlet provided, and generally whether it wall serve the purpose for which it was intended, and that it will drain, or aid in draining, the land near or through which it extends. In the location of such a ditch it was not necessary that the natural flow of the water be followed, but only that the route determined upon be a practicable one. The burden of proof upon the question as to whether the route of said ditch is practical is upon the party seeking the establishment thereof, and if you do not find by a prepon- derance of the evidence from your view of the premises and testimony of witnesses, that the route of the ditch is practicable for the purposes sought to be attained thereby, it will be your duty to find that the route of said proposed ditch is not prac- tical.^ 1 Marsh v. Phelan. Approved by C. C. and S. C. Sec. 1718. Same continued — Compensation for lands taken. You are to determine how much compensation is due to S. ]\L for the lands appropriated for the construction of this ditch upon the proposed route. The value of the lands actually used for the ditch must be allowed her. In considering this question, the fact that she might receive benefits from the proposed ditch can not be taken into consideration in allowing or fixing her compensation. You must allow her just such sum as will compensate her. for the loss of land used in the construction of the ditch. EMINENT DOMAIN APPROPRIATION OF PROPERTY. 1461 The fair market value in cash at the time it is taken must be allowed her. There is a difference between the terms "compensation" and "damages." Compensation means an appropriation for land actually used in making and constructing the ditch. Damages is an allowance made for any injury that may result to the lands affected by reason of the ditch to be constructed. You are to determine what damages, if any, are due to S. ]\r. for property affected by this proposed ditch. In determining the damages you will consider how much less valuable, if any, the remaining lands will be by reason of the construction of the ditch. "Wliere land is appropriated for a public use, a compensation, not a speculative remuneration, is guaranteed by the law for the land taken and for damages occasioned thereby to the remainder of the premises. The differences in value of the owner's property with the appropriation and that without it is the rule of compensation. This difference must be ascer- tained with reference to the value of the property in view of the present character, situation, and surroundings. Under the head of damages may be considered the fact whether the proposed ciitch Mill cause any overflow of ]\Irs. ]\I. 's premises, or backwater upon it, or will destroy the symmetry of her land, or access to, or egress from it, or any actual damage that will result to her premises by reason of the econstruction of the proposed ditch. But these damages must be actual and not speculative. If you find that her premises Mall not be injured in any respect whatever by said ditch, if located, that the land will be benefited as much or more than it will be injured by the proposed ditch, you may allow her no damages.^ 1 Marsh v. Phelan. Approved by C. C. and S. C. Sec. 1719. Same continued — View of route by jury. You were ordered to view the whole route, as located by the county commissioners, of the proposed improvement and the lands surrounding. This was for the purpose of enabling you 1462 INSTRUCTIONS TO JURY. to determine the questions in this case, and to apply your own judgments in regard to them as well as to the better under- standing of the evidence given, and in making up your verdict you will consider both the facts appearing to you from the view of the premises and the evidence adduced. You are to determine the questions presented to you in this case not alone on the evidence of witnesses, but also from your view of the route of the proposed ditch. ^ 1 From Marsh, et al., v. Phelan, et al., Clark County. Probate Court was affirmed by the Circuit Court, and the latter was affirmed by the Supreme Court CHAPTER XCVIII. ESTOPPEL. SEC. SEC. 1720. Defined. 1722. Intent to mislead not essen- 1721. Conduct must cause prejudice tial. or injury. 1723. Statement must be acted upon. Sec. 1720. Defined. "Where one person, by his acts or declarations made delib- erately and with knowledge, induces another to believe certain facts to exist, and that other person rightfully acts on the belief so induced, and is misled thereby, the former is estopped to afterwards set up a claim based upon facts inconsistent with the facts so relied upon, to the injury of the person so misled. This definition embraces all the essential elements of an estoppel. It will be your duty to examine the evidence, and ascertain whether all these elements are proved in this case. ' '^ The doctrine of estoppel is founded on principles of morality and is intended to subserve the ends of justice. It is a doctrine when properly understood and applied, that concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party when in conscience and honesty he should be allowed to speak.- 1 From Pennsylvania Co. v. Piatt, 47 O. S. 366. 2 Van Rannselaer v. Kearney, 11 How. 297; Bowen v. Howenstein, 39 App. Cas. (D. C.) 58.'). Am. Ann. Cas. 1913, E. 1179. Sec. 1721. Conduct must cause prejudice or injury. The jury are instructed that a person is not estopped from denying the truth of his owr\ statements, unless it appears that they were made in bad faith, or fraudulently, or their equiva- 1463 1464 INSTRUCTIONS TO JURY. lent, gross negligence, or that the party setting up or claiming such estoppel has been prejudiced thereby.^ iMcKinzie v. Steele, 18 0. S. 38. An act must be both injurious and will- ful. Nye V. Denny, 18 0. S. 246; Penn. Co. v. Piatt, 47 O. S. 368. It is of the essence of estoppel that the act relied upon should have been injurious. Smith v. Powell, 98 Va. 431; Lincoln v. Gay, 164 Mass. 537, 49 Am. St. 480. Sec. 1722. Intent to mislead not essential. The jury is instructed that it is not necessary to constitute an estoppel that a party should intend or design to mislead; it is enough if the act or declaration was calculated to and did in fact mislead another who acted in good faith and with reason- able diligence.^ 1 Rosenthal v. Mayhugh, 33 0. S. 155; Beardsley v. Foot, 14 0. S. 414; 14 O. S. 102; Blair v. Wart, 69 N. Y. 113. Sec. 1723. Statements must be acted upon. The jury are instructed that before a party can be estopped from denying the truth of any statement it must appear from the evidence that such statements have been acted upon by another, and that they were acted upon in ignorance, differently from what he otherwise would have done, and that such person will be injured by allowing the truth of the admission by the declaration or conduct so acted upon by him to be disproved.^ 1 Penn. Co. v. Piatt, 47 O. S. 366, 1 Greenleaf's Ev., sec. 209. CHAPTER XCIX. EVIDENCE— WITNESSES. SEC. 1724. 1725. 1726. 1727. 1728. 1729. 1730. 1731. 1732. SEC. General uistruction as to the 1733. evidence. Preponderance and weight of the evidence. 1734. Evidence and testimony dis- 1735. tinguished — Weight of 173G. evidence may be shown by greater or less num- 1737. her of witnesses as jury may view it — Weight 1738. may be sliown by cir- cumstances or inferences. Declarations, statements or 1739. admissions. Declarations against interest 1740. in criminal case. Inferences drawn from con- 1741. duct of parties, and omission to produce evi- 1742. dence. 1743. Credibility of witnesses. Impeachment of witness — 1744. What constitutes reputa- 1745. tion. Credibility of witnesses — Jury 1746. to consider physical con- 1747. ditions, possibilities or 1748. improbabilities. Jury not at liberty to indulge in capricious disbelief of testimony. Circumstantial evidence. Same — Another form. Circumstantial evidence con- tinued. Negative and aliirmative evi- dence. Weight given medical expert testimony as to personal injury. Medical testimony as to na- ture of human blood. Uncorroborated tcstimon} accomplice. Previous good character criminal case. Conduct importing guilt. Testimony as to recognition of accused. Flight of accused. Consideration of improper un- answered questions. Conflict of testimony. Reasonable dovibt. Drunkenness no excuse for crime — May be consid- ered for what purpose. of in Sec. 1724. General instruction as to the evidence. In determining the issues of fact in tliis case, you will take into consideration all the evidence bearing upon the r(>spective questions. 1465 1466 INSTRUCTIONS TO JURY. The evidence* is not what counsel on either side said to you in the opening statement they expected the testimony to show; not what they have said to you in the course of the argument, nor to the court in your presence ; nor is it what I may state to you as my recollection of the testimony in the charge. The opening statement is made to enable you to understand the testimony as it is offered. The argument is to assist you in reaching a proper conclusion, the charge is to give you the law", which shall guide you in your deliberations. The evidence is what the witnesses have been permitted to say to you while upon the witness-stand. You are made the sole judges of all questions of fact. You must determine the facts from the evidence in the light of the law as I have stated it to you. You are the sole judges of the credit to be given to the wit- nesses, and of the weight of the evidence. Bear in mind that the court is to determine the competency, the jury the weight. Courts admit evidence not by reason of its weight, but because of its tendency to prove or disprove the issue ; leaving its truth or falsity and its weight to the jury. You may believe or disbelieve all that a witness has testified to, or you may believe or disbelieve a part. In determining the credit to which a witness is entitled, and the weight w^hich shall be given to his evidence, you may properly take into account his interest in the result of the trial, his rela- tion to the parties to the suit, the influence he may be under, his kinship to the parties, if any, and his demeanor upon the witness-stand. A witness who goes upon the witness-stand and frankly gives testimony \^'ithout regard to whether it be for or against the party calling him as a witness, giving testimony in accordance with admitted facts in the ease, or that is corroborated by other witnesses, presents strong claims to credence at your hands. Upon the other hand, a witness who goes upon the stand and freely gives testimony for the side calling him, but who testifies unwillingly upon the other side, or who becomes pert and im- EVIDENCE WITNESSES. 1467 pudent on cross examination, presents no such claims. The testimony of such a ^^■itness should be carefully scrutinized by the jury. In weighing the evidence you should take into account the means or opportunities of the witness to have knowledge about the matters testified to. You sliould also take into account the probability or improbability, the possibility or impossibility of the story told by the witness. In determining the facts, gentlemen of the jury, you should proceed upon the theory that all the witnesses have tried to testify truthfully. If there be conflict in the evidence, as there is in nearly every case, you should, if possible, reconcile it with the truth and find the facts. Sec. 1725. Preponderance and weight of the evidence. By preponderance of the evidence is meant evidence that you, in your jury room, considering the evidence and weighing it, conclude is the evidence that you believe and that influences your minds in arriving at the conclusion you reach. The weight of the evidence does not necessarily mean that one side has more witnesses than another; it simply means that if, when weighing all the testimonj^ of all the witnesses with reference to their credibility, correctness of memory, and to the circumstances surrounding their testimony, appearing in the case, the evidence of one side outweighs that of another, then such side is said to have the weight of the testimony. The jury are the sole judges or the weight of the testimony and the credi- bility of the witnesses. If one witness testifies directly opposite to another, the jury is not bound by that fact to regard the weight of the evidence as evenly balanced. The jury has the right to determine from the appearance of a witness on the stand, his manner of testifying, his apparent candor, his apparent intelli- gence or lack of intelligence, his relationship, business or other- wise, to the party, his interest, if any may appear from the evidence, his temper, feeling or bias, if any; and from this and all other circumstances appearing in connection with the testi- 1468 INSTRUCTIONS TO JURY mony on the trial the jury has the right to determine which witness is the more worthy of credit, and to give credit accord- ingly. But, of course, if the witnesses are otherwise equally creditable, greater weight should be given to the testimony of those who swear affirmatively to the fact, rather than those who swear negatively as to the want of knowledge or recollection. So if the witness is an employee of either party and the jury should believe that the witness has testified under fear of losing his employment, or a desire to avoid censure or fear of offend- ing, or a desire to please his employers, such fact may be taken into account in determining the degree of weight which ought to be given to the testimony of such witness. But men are not under suspicion or disability as witnesses simply because they are employees, and it will not do to assume that the man has disregarded his oath and is unworthy of belief simply because he is an employee. It is for you to determine whether his rela- tion has or has not in any way embarrassed or restrained him from telling the truth. Another Form. — In speaking of proof — preponderance of proof — it is per- haps hardly necessary to say to the jury that testimony is not to be measured by the number of witnesses. It is not that at all. You are to judge of the character of each witness. You are to determine wliat weight should be attached to any one witness's testimony. You have seen the witnesses upon stand tliat have testified here. You have heard the depositions of others read. You are to judge of the weight to attach to every witness's testimony. You have seen their appearance, the evidence of candor or lack of candor shown; the interest manifested by them or their disinterestedness, as the case may be: and you are out of all to determine how much weight shall be attached, and determine upon the whole volume of the testimony, and the whole facts submitted to you, where the truth of the matter lies: and determine out of it all whether the plaintiff has established by the proof the claims here made. As to preponderance see Whittaker's Code of Ev.. sec. 148. Tfo Degrees of Preponderance. — There are no degrees of preponderance; hence language should not be used which would lead the jury to conclude that there were degrees, or that the evidence must be of a clear and convincing character. Therefore, to instruct the jury that there must be clear or a fair preponderance, would be error. Russell V. Russell, 6 0. C. C. 294; Efiinger v. State, 9 0. C. C. 376. EVIDENCE WITNESSES. 1469 It means greater weight, not larger number of witnesses. Holmes v. Holland, 29 \V. L. B. 115. It is not necessary to repeat the statement that a preponderance of evi- dence is required to justify a verdict, with every reference to the evi- dence made. Reipe v. Elting, 26 L. R. A. 769, 89 la. 82. Sec. 1726. Evidence and testimony distinguished — Weight of evidence may be show^n by greater or less number of witnesses, as the jury may view it — Weight may be shown by circumstances or inferences — Credibility to be decided before weight to be determind. The greater weight of the evidence does not necessarily depend upon the greater number of witnesses. It may, if the jury so view it, or it maj" not depend upon the greater number of wit- nesses if the jury, after sifting the credibility of vsdtnesses, come to the conclusion that one or two or any less than the greater number of them told the truth. The jury must bear in mind that testimony is that which is given by the ■\^dtness when he is on the witness stand. It may not become evidence because the jury may believe that it is not entitled to any consideration and will discard part of it or all of it, just as you men deem proper in the exercise of your con- scientious judgment. You must always consider the question of credibility first when there is a sharp conflict as there is here, between two men. You will have to decide which is worthy of belief, because they both can not be telling the truth. One of them must be mistaken. But the greater weight of the evi- dence may be made to appear other than by the mere statements of witnesses as by circumstances and inferences. In any trans- action like this there may be inferences to be drawTi from the facts and circumstances. There may be inferences to be drawn from the statements made by the witnesses, and that becomes just as much evidence to be considered by the jury as are direct statements of the witnesses themselves. So that in determining on which side the weight is. the jury are warranted in not only taking the statements made by the witnesses themselves, but 1470 INSTRUCTIONS TO JURY. it may consider the facts and circumstances, and the natural, logical deductions that may be drawn therefrom. Sec. 1727. Declarations, statements or admissions — How con- sidered — Civil cases. Declarations and statements (or admissions) of persons or of a party to an action should always be received by the triers of a cause with care and caution, for the reason that the parties may not have been understood at the time the statements were made ; that the parties who now repeat them did not fully understand them, and the possibility that they w^re not recol- lected and repeated correctly in court. But if you find that the declarations and statements have been made and correctly given in evidence, they afford very strong and convincing evidence and proof, for the reason that parties are not supposed to make declarations against themselves and interest. Wlien it appears that they were under- standingly and deliberately made, it often affords satisfactory evidence ; yet, as a general rule, statements of the witness as to the verbal admissions of a party should be received by the jury with great caution, as that kind of evidence is subject to much imperfection and mistake. The party himself may not have clearly expressed his meaning, or the witnesses may have misunderstood him, and it frequently happens that the witnesses by unintentionally altering a few of the expressions really used, give effect to the statement completely at variance with what the party did actually say. But it is the province of the jury to weigh such evidence and to give it such consideration to which it is entitled in view of all the other evidence in the case.^ 1 Declaration against interest competent evidence. Whittaker's Code Ev., sec. 17; 1 Greenleaf Ev. sec. 171. Sec. 1728. Declarations against interest in criminal case. On the part of the state it is claimed that there is evidence in the ease tending to show that the defendant at various times, and to various persons who were before you as witnesses, made EVIDENCE — WITNESSES. 1471 statements or admissions against his interest, and which tended to show his guilt. The statements and declarations made by the defendant and offered in evidence against him, should be carefully examined and considered by you. These statements have been offered by the state, but the exculpatory parts thereof, or parts thereof in his justification, as well as those which import guilt are to be received and considered by you. You should con- sider the entire statements or declarations, and in the light of all the testimony in the ease give to such statements and declara- tions the weight which in your judgments the same are justly entitled to receive. A considerable portion of the evidence consists of testimony tending to show conversations in which the prisoner and others are said to have participated. No class of testimony is more unreliable and a more frequent cause of error in the courts of justice than the narration of conversations real or pretended. The meaning or intention of the person in the conversation often depends upon gestures, mode of expression, or peculiar circumstances, known perhaps but to a few present. A conver- sation may not be fully heard; it may be imperfectly recollected, or inaccurately repeated, when the omission or addition of a word, or the substitution of the language of the witnesses, under color of bias or excitement', or the words actually used might change the sense of the conversation. This is apparent from the contradiction daily manifested in the courts of justice in the narration of the same conversation from the mouths of dif- ferent persons. Tn considering this class of testimony, you should view it with deliberate care and scrutiny. Tn this con- nection, however, I will say to you tliat where a statement or admission is deliberately and voluntarily made by the admission or statement there made, is carefully remembered and accurately detailed, such declarations or statements made against interest may be of the most satisfactory nature.^ 1 Wm. R. Bay, J., in State v. Webster, Tnimbull Co. Com. PI. Conduct and sayinps of party accused admitted not as confession, but aa source of information respectinj? the guilt or innocence of defend- ant. Whittaker's Ev. p. 125. 1472 INSTRUCTIONS TO JURY. Sec. 1729. Inferences drawn from conduct of parties and omission to produce evidence. In determining the questions involved in this case, you are at liberty to look to the conduct of the parties, and if you find from a consideration of all the evidence that a party has omitted to produce evidence in elucidation of the subject matter in dis- pute which is within his power, and which rests peculiarly within his knowledge, you may draw such conclusions from it as in your judgment such omission warrants ; while it is not a pre- sumption of law that such omission to produce evidence renders it probable that the party withholding it does so because he knows that if it were produced it would operate to his prejudice, yet the law permits you to draw such conclusions or inferences, and to give to it such weight as your judgment may warrant.^ 1 Xewby, J., in Graham v. Graham, Highland Co., Com. PL 'The ordinary presumption where a party fails to otl'er proof of wliat he ought to prove, if it exists, is that the question was not asked because the answer would have been unfavorable." Whittaker's Code of Ev. p. 502. Sec. 1730. Credibility of witnesses. In determining the credibility of the witnesses you may con- sider their intelligence, their ability to relate what they saw or heard, and the circumstances by which each of them was sur- rounded. You may also consider their manner on the witness- stand while testifying. Did they show a zeal in testifying against or for either side? Did they exhibit a reluctance to testify for or against either side? You may also consider whether each witness was corroborated or contradicted by other witnesses in the case of close credibility. You must pass upon the amount of credit you will attach to every fact. That requires you to look at the testimony of each witness in its own and in the light of the other facts. You may consider the relation that each vsdtness bears to the ease and the interest which he has in the result. If any one of them is to be aifected seriously by the result of the case, by your verdict, then in fixing on the weight of his testimony you should consider that fact. Some of the EVIDENCE — WITNESSES. 1473 witnesses may have an interest in the conviction of the defendant. The defendant may have an interest in his liberty. Next to his interest in this life is his interest in his liberty. That is human and applicable to all of us. Your verdict may affect this interest of the state's witnesses in conviction, and it may affect the defendant's interest in his liberty. Witnesses have been known to testify falsely by such interests as I have just explained, and it is for you to say whether any of the witnesses for the state or t»iie defendant have been moved to testify falsely by reason of such interest. In determining the weight to be attached to each and every witness' evidence, you may also con- sider the probability or improbability of the truth of the state- ments which they made. You are not obliged to believe the state- ments of any witness merely because he made them; and you may, if your judgment dictates, believe part and disbelieve part of any witness ' testimony.^ 1 Pugh, J., in State v. Abbott, Franklin Co. Com. Pleas. Credibility is a matter of induction, to be determined by the jury, under such instructions, as to the reason of the case, as may be given by the court. Wharton's Cr. Ev.,^ sec. 384. Interest. — No person is disqualified as a witness by reason of interest. Wbittaker's Ev., sec. 205. Relationship, party sympathy, personal affection influence the perceptive powers as effectively as pecuniary interest. Wharton's Cr. Ev., sec. 376. Interest and sympathy may always be shown. Id. sees. 376-476-7, 488. Credibility depends on capacity to observe ajid capacity to narrate. Wliar- ton's Cr. Ev., sec. 377. Sec. 1731. Impeachment of witness— What constitutes repu- tation. A person's reputation for truth is established by what his neighbors, and the persons with whom he generally associates in a community, generally say of him in this regard, or from the fact that nothing is said of and concerning him. If they gfnfr;illy say he is untruthful, that makes liis general reputation for truth bad. On the other hand, if a man's neighbors and associates in a community say nothing whatever about him as to his truthfulness, that fact of itself is evidence that his general 1474 INSTEUCTIONS TO JURY. reputation for truth is good. (Sacket, sec. 373; 28 Ind., 206; 68 Ind., 238; 132 Ind., 254.) The reputation of a person for truth must appear to be gen- eral in a community where he lives, or in a community where he may temporarily reside for a sufficient length of time to acquire a general reputation. The general reputation must appear from what people in general say of him, in the com- munity, and should not be limited to a particular class of per- sons, but depends upon w^hat is generally said of him, or by. the fact that people generally do not discredit him. Wliether or not the general reputation of these witnesses has been successfully impeached is for the jury to determine. You will consider all the testimony offered on this point, that pro- duced by the defense to impeach, and that produced by the state to support the witnesses. The credibility of all these witnesses and the weight to be attached to their testimony is within the exclusive province of the jury. You may consider the standing of the witnesses offered, their opportunity to know the people with whom the witnesses sought to be impeached generally mingle in the community where they live ; whether the testi- mony shows that the people with whom the witnesses associated generally discredit the witnesses for truth, or whether only a few of such persons discredit them ; or whether it appears that the reputation of such witnesses for truth w^as not generally questioned. The jury may also consider the relation which the impeaching witnesses sustain to the prosecution or the defense, or to the defendant, or to the witnesses sought to be impeached. The jury may consider also the interest which the impeaching witnesses may have in the defense of this case or other alleged acts of solicitation of bribes testified to in this case, if the jury believe any ^\Titness or witnesses have such interest. If the jury should be of the opinion that the general reputa- tion of either or both of the witnesses mentioned for truth and veracity in the community where they live, or temporarily reside, has been successfully impeached, then you may in your discre- EVIDENCE — WITNESSES. 1475 tion disregard their testimony as being unworthy of belief, either a part of it or all of it, as your judgment demands. But, not- withstanding the fact that you may believe from the evidence that the general reputation of such witness or witnesses for truth has been successfully impeached, you may still believe their testimony, a part, or all of it, if your judgment suggests that you should give credence to it. In determining the weight to be given to the testimony of the Avitnesses sought to be im- peached, you may consider whether it has or has not been cor- roborated Iw other witnesses or facts and circumstances appear- ing in the case. To warrant the jury in coming to the conclusion that the reputation of such witness or witnesses has been successfully impeached, you must find that the bad reputation is general in the community where he lives ; or that it is generally bad in a community where he has temporarily resided for a sufficient length of time to have acquired a general reputation for truth ; that is, that it is generally so reported and considered to be bad in the community ; and if it has not been thus impeached the jury should not reject it, but should give it consideration and weight, applying to it the ordinary tests of credibility. Whether a witness has been successfully impeached, or how far the value of his testimony has been impaired by impeaching evidence is within the exclusive pwvince of the jury. Notwith- standing you may believe tlie reputation of a witness for truth is not good, you may nevertheless give such weight to his testi- mony in this case as you may believe it to be entitled, or you may disregard it entirely if you believe it entitled to no weight. You are not bound to take the testimony of any witness as absolutely true, and you should not do so if you believe his testimony is untrue or unreliable. The effect of impeaching testimony goes to the weight that should be given to that of the witness whose reputation is attacked. Tt is submitted to you to better enable you to determine in what light to estimate his testimony. 1476 INSTRUCTIONS TO JURY. A witness may be impeached by showing that he has made other and different statements out of court from those made before you on the trial, as to any material matter. And if the jury believe from the evidence that any witness has made state- ments at another time and place at variance with his evidence in this case, regarding any material matter testified to by him, then it is the province of the jury to determine to what extent this fact tends to impeach, either his memory or his credibility, or* detracts from the weight to be given his testimony. It is entirely a question for the jury as to what effect it will have upon you here. It is not whether the statement alleged to have been made outside is true, but whether the testimony given on trial is true. In determining the question you will take into consideration all of the facts and circumstances, applying the tests in determining the credibility of witnesses. The contra- diction must be as to a material matter; and its materiality is to be measured by you by the charge of solicitation of a bribe, contained in the indictment. The question of fact which you are to determine in this case is whether the defendant corruptly solicited a bribe, with intent to influence his official duty. 1 State V. Nye, Franklin Co. Com. Pleas, Kinkead, J. Sec. 1732. Credibility of witnesses — Jury to consider physical conditions, possibilities or impossibilities. The jury in passing upon the credibility of witnesses and the weight of the evidence, in reaching its conclusion may if it sees fit and deems proper "appreciate that the manner of an occur- rence as testified to from the mouths of witnesses is not neces- sarily to be taken as matter of fact even if not in like manner contradicted. The jury may consider physical conditions, and possibilities or impossibilities and give the same such weight and effect in comparison with the vocal utterances of any wit- ness, or any number of witnesses. It may consider the fact that witnesses may falsify, v.hile physical situations and conditions may not.^ iHong V. Lumber Co., 144 Wis. .337, 129 N. W. 633, 140 Am. St. 1012. EVIDENCE — WITNESSES. 1477 Sec. 1733. Jury not at liberty to indulge in capricious disbe- lief of testimony. "Wlien testimony is not of itself improbable, is not at variance with any proved or admitted facts, or witli ordinary experience, and comes from witnesses whose candor there is no apparent ground for doubting, the jury is not at liberty to indulge in a capricious disbelief of the testimony of a witness.^ 1 Lonzer v. R. R. Co., 196 Pa. St. 610, 46 Atl. 937. If they do so, it is the duty of the court to set aside the verdict. Id. Sec. 1734. Circumstantial evidence — Criminal cases. In criminal cases the evidence may be either direct or circum- stantial, or both; if a witness sees, knows and testifies to the commission of the ultimate fact to be proven, that is positive or direct evidence. But it is not always possible in criminal cases to establish guilt by direct and positive testimony, nor is it necessary, and the law provides that circumstantial evidence alone, where suf- ficient to satisfy the mind beyond a reasonable doubt, shall justify conviction. Circumstantial evidence is proof of facts standing or existing in such relation to the ultimate fact or facts to be proven that such ultimate fact may be inferred or deduced from such sur- rounding fact or facts. However, it must be remembered that before there can be any legal conviction of the defendant in this case, the evidence whether it be direct or circumstantial, or cir- cumstantial alone, must be so clear and convincing as to exclude from your minds, and from the mind of each one of you, all reasonable doubt of the guilt of the defendant. Each and every circu instance and fact from which an inference is sought to be drawn against the defendant must be proven beyond the exist- enee of a reasonable doubt before such inference can be drawn therefrom, and the hypothesis of guilt should flow naturally from the facts found and be consivStent with them all. Before any such inference can be drawn therefrom, and such fact relied upon as the basis of any legal inference against the 1478 INSTRUCTIONS TO JURY. defendant, it must be strictly and indubitably connected with the main charge, to-wit: The killing of the deceased by the defendant. If the evidence in the case can be reconciled with the innocence of the accused, you should so reconcile it. It is not sufficient to entitle the jury to render a verdict of guilty that the facts and circumstances established by the proof coin- cide with, account, and therefore render probable, the hypothesis of guilt ; but such proof must exclude to a moral certainty every reasonable hypothesis than that of guilt. ^ 1 Wm. R. Day, J., in State i\ Webster. See Wharton's Cr. Ev., sec. 10: Wills on Cir. Ev, 188. Sec. 1735. Same — Another form. What is meant by circumstantial evidence in criminal cases is proof of such facts and circumstances connected with or sur- rounding the commission of the crime charged as tend to show the guilt or innocence of the party charged ; and if these facts and circumstances are sufficient to satisfy the jury of the guilt of the defendant beyond a reasonable doubt, then such evidence is sufficient to authorize the jury in finding a verdict of guilty. To authorize a conviction on circumstantial evidence alone the circumstances should not only be consistent with the prisoner's guilt, but they must be inconsistent with any other rational conclusion or reasonable hypothesis, and such as leave no reasonable doubt in the minds of the jury of the defendant's guilt. Circumstantial evidence is legal and competent in crim- inal cases, and if it is of such character as to exclude every reasonable doubt, it is entitled to the same weight as direct testimony. Sec. 1736. Circumstantial evidence — Continued. Circumstantial evidence is often the most convincing.^ It is difficult to fabricate the connected links in a chain of circum- stances so as to preserve the semblance of truth. When the circumstances detailed are real and natural they will correspond KV'IDEXCE WITNESSES. 1479 with each other. Wlien they are inconsistent with each other or irreconcilable ^vitli the admitted or proven facts, then results a plain and almost certain inference that artifice has been re- sorted to and that the tale is not true.- 1 "Circumstantial evidence is often stronger and more satisfactory than direct, because it is not liable to delusion or fraud." State v. Thorne, 6 Law Rep. 54. 2 Gillmer, J., in Hickox i\ Ins. Co., Trumbull Co. Com. Pleas. Sec. 1737. Negative and affirmative evidence. Evidence has been offered tending to show that the bell was ringing, and evidence has been offered tending to show that the bell was not ringing at that time, and in considering the testi- mony upon this subject, you will consider it a rule of presump- tion in the law of evidence that, where witnesses are of equal credibility, the one who testifies to the affirmative is ordinarily to be preferred to the one who testifies to the negative, for the reason that the one who testifies to the negative may have for- gotten. It is impossible to forget a thing that did happen. It is not possible to remember a thing that never happened.^ 1 Johnston, J., in Younfrstown St. R. R. Co. v. K Y. L. E. & W. R. R. Co. An instruction that the positive testimony of a witness to the existence of a certain thing, and the testimony of anotiier witness that such a thing does not exist, are equally credible, is erroneous, as it ignores every well-settled principle which is applied in determining the credibility of witnesses, and lays down the rule that one witness will counterbalance another. Smith v. M. B. & T. Ex., 30 L. R. A. 504. An instruction that "positive testimony of a small number of witnesses that tliey saw or heard a given thing occur will outweigh the nega- tive testimony of a greater number of witnesses that they did not see or hear it, provided the witnesses are equally credible; but in connection with this instruction should be considered the relative means or opportunity of the several witnesses to see or hear the occurrence, and it should be carefully kept in mind that it only applies when the witnesses are credible." is proper. Draper v. Baker, 61 Wis. 4.50. Affirmative testimony is entitled to more weight tlian that which states that the witness did not see nor hear. Toledo Con. St. Ry. v. Rohner, 9 0. C. C. 702. See 2 0. 415, 426; T. (11), 43. 1480 INSTRUCTIONS TO JURY. Sec. 1738. Weight given medical expert testimony as to per- sonal injury. As bearing upon the question of the plaintiff's injuries, both plaintiff and defendant have called medical experts to whom hypothetical questions have been put for the purpose of enlight- ening you upon the issue between the parties in that respect ; that is, persons of experience in the medical profession have been called, to whom questions embodying certain statements as facts in the case have been put, and upon which statement of facts the witness has given his opinion. This is testimony which should be considered by you in determining this question be- tween the parties, and the weight to be given to it depends upon the skill and experience of the physician, his learning, capacity, and upon whether or not the question and statement of fact contained in it, upon which the opinion is expressed, is a true statement of the facts as to the plaintiff's condition, as you find them to exist from the testimony in the case. If the ques- tion with this statement of fact put to the ^vitness, upon which he expresses his opinion, does not embody the facts as you find them to have been established by the testimony, then the opinion is of no value in determining the issues in the case, because it is giA^en upon what you find to have been a false premise. If, however, the questions embody substantially the facts as you find them to exist and from the testimony, then you should give to them such weight as in your judgment, in the light of all the testimony in the case they would be entitled to, in determining this question.^ iWest V. Knnppenberfrer, 4 C. C. (N.S.) 305. Sec. 1739. Medical testimony as to nature of human blood. Experts, both medical and those who have made the nature and properties of human blood a special study, were examined in regard to some matters in dispute between the state and the defendant. These experts were allowed to testify and give their opinions on account of the special skill and knowledge they had acquired from the study and practice in reference to the matters to which their testimony referred. EVIDENCE— WITNESSES. 1481 And notwithstanding their special skill and knowledge, you are to decide upon the value of the testimony and award to them, all and each of these experts, such weight as you may think their testimony deserves ; the credibility of witnesses who have testified in this case, as well as the weight and effect of the circumstances are solely for your consideration and determina- tion. In weighing the testimony of witnesses, you should take into consideration the reasonableness and probability of the story they tell when on the witness-stand, their strength of memory, whether they are contradicted or sustained by any reliable testi- mony in the case, any interest which any witness may have, or feelings in the case, or any proper consideration developed by the proof, which may aid you in arriving at a just conclusion.^ 1 William R. Day., in State r. Webster. See, as to identification of blood, Wharton's Cr. Ev., sec. 777a (8th Ed.). Sec. 1740. Uncorroborated testimony of accomplice. While there is no rule of law in this state preventing the jury from convicting upon uncorroborated testimony of an accom- plice, still a jury should always act upon such testimony with the greatest care and caution, subject it to the most careful examination in the light of all the other evidence in the case, and the jury ought not to convict on such testimony alone, unless a full and careful examination thereof has satisfied them beyond the existence of a reasonable doubt of its truth and that they can safely report upon it.^ 1 Gillmer, J., in State v. Champlin. The consjjiracy must bo proved be- yond a reasonable doubt. Ditzler v. State, 4 0. C. C. .5")!. Corroboration. — The uncorroborated testimony of an accomplice may be sufficient to convict (10 O. S. 287), but is generally not entitled to much weij,fbt (1!) 0. 131, 13;)), and the court should caution tbe jury as to its unrelialjility. -\Ib-ii r. State. 10 O. S. 287. Tlie jury may convict upon tlie uncorroborated testimony of an accomplice if it satisfies them l)eyond a reasonable doubt of the fjuilt. Com. V. Scott, 123 Mass. 222; Com. v. Elliott, 110 Mass. 104; Com. v. Snow, 11 Mass. 411. 1482 INSTRUCTIONS TO JUSY. Sec. 1741. Previous good character in criminal case. The defendant relies upon his previous good character and some evidence has been introduced upon that point. That evi- dence you are to consider in the case precisely the same as the rest of the testimony. A defendant in a criminal case has the right to put in evidence concerning his former good character, his previous life. It is evidence tending to raise a probability that one who had such a character would not commit a crime. It is not, however, conclusive. It is simply evidence to be con- sidered with all the other testimony for the purpose of deter- mining whether the proof, taken as a whole, establishes his guilt beyond a reasonable doubt. If it does not, even this evidence may of itself create a reasonable doubt, and if it does, he is entitled to tlie benefit of that doubt. But if, when you come to take the evidence of character together with all the other testi- mony submitted for your consideration, and you are satisfied when you look at it and consider and weigh the effect upon your minds and judgment, if ultimately your minds are convinced beyond a reasonable doubt that the defendant is guilty, notwith- standing his standing and position in the community, notwith- standing his previous good character, he is guilty of the judg- ment of the law, it is your duty to so pronounce by your verdict. It is a matter of common observation and experience that, owing to a latent weakness in the human character, men of the best standing, men whose lives have been characterized by long integrity and fidelity in all life's relations are found, on occa- sion when temptations are presented to them, to yield, to give way, and to fall into the commission of crime. It is temptation which subverts human character, destroys human integrity and uproots human fidelity, and under the influence of it — under the impulse of the occasion — men of that kind give way when it would be expected they would resist. There is no intimation in making this statement that the defendant has done this, but your attention is simply called to that weakness of the human character, which needs no proof, because it is common observa- tion and experience, and you are instructed that it is proper for EVIDENCE — WITNESSES. 1483 you to consider it in giving the proper weight and effect to tlio evidence touching the previous character of the defendant.^ 1 Pugh, J., in state v. Abbott, Franklin County Common Pleas. Char- acter may be shown. 11 O. S. 114. Its bearino; is for jury. 22 O. S. 477. It is error, however, to charge that it is entitled to less weight where the question is one of great criminality. 1!) O. S. 264. See full discussion Wharton's Cr. Ev., sec. 57, et seq. Reasonable Effect of Good Reputation — A Short Charge. — Testimony has been offered and permitted to be given to you as to the general repu- tation of the defendant for honesty. "The reasonable effect of proof of good reputation is to raise the presumption that the accused was not likely to have committed the crime with which he is charged. The force of this presumption depends upon the strength of the opposing evidence to produce conviction of the truth of the charge." Good reputation is certainly no excuse for crime, and it is a circum- stance bearing indirectly upon the guilt of the accused which the jury are to consider in ascertaining the truth of the charge. The evidence offered l)y the defendant of his good reputation for honesty is to go to the jury and be considered by them in connection with all the other facts and circumstances, and if they believe the defend- ant to be guilty they must so find notwithstanding his good reputa- tion. Nye, J., in State r. Wideman, Medina Co. Com. Pleas. Sec. 1742. Conduct importing guilt. It is claimed on the part of the state that there is evidence hefore you tending to show conduct on the part of the defendant importing guilt. The conduct and statements of the defendant at and after the time of his arrest should be fairly considered 1>y you. and such allowance by you as is reasonably just, considcr'ng tlie sur- rounding circumstances under which the defendant v.as placed, and the liability of the witnesses to pervert or underst;md such fonduct and statements.^ 1 \\m. R. Day, J., in State v. Webster, Trumbull Co. Cam PI. Confessions may be by acts as well as by irnrds. Acts of a prisoner in hiding stolen property, and in fligiit. mid tlie conduct of an accused when informed of the accusation. People v. McKee, 36 N. Y. 113; Jewett i\ Banning, 21 N. Y. 27; Com. r. McPike, 3 Cush. 181. Confusion, embarrassment, "blushing," and "terror," may be sliown against accused. Wharton's Cr. Ev.. sec. 7.'51 and cases cited. In a note this (luotation appears from a charge by Judge Learned: "I do not 1484 INSTRUCTIONS TO JURY. think much reliance is to he placed upon the manner of any man when he is suspected or accused of crime. I mean whether hti looks pale or flushed, or the like, for it is impossible for us to tell how a man may act when he is accused of crime. Our own judgment in that is not very reliable; one of you may appear to me flushed or frightened, and to another not so. Therefore I do not think much reliance is to be placed upon the opinion of wit- nesses as to manner. I don't speak of conduct, but as to manner." Id. See Russell v. State, 53 Mass. 367. Sec. 1743. Testimony as to recognition of accused. In considering the testimony of witnesses as to the recogni- tion of the defendant on the night of the alleged homicide, you are permitted to take into consideration and consult your own knowledge and experience, as to the certainty or want of cer- tainty with M'hich the question of identity may be determined, and in determining the value of the testimony of the witnesses as to a recognition of the defendant, you should examine into the facts upon which such witnesses base their testimony. You should inquire what were the opportunities which such witnesses had of knowing and recognizing the defendant; what means the ^^atness had of seeing and knowing the countenance and person of the defendant ; the previous acquaintance which such witness had with the defendant ; whether such acquaintance was casual or otherwise, and whether the witness was, at the time of the alleged recognition dispassionate, collected, observant, or otherwise. Familiarity with the person sought to be identified, though not essential to competency, may be of much importance in determining the weight to be given to the testimony of the witnesses testifying to the identity of another.^ 1 Wm. Pv. Day, J., in State v. Webster. Sec. 1744. Flight of accused. The flight of a person immediately after a crime is committed with which he is charged is a circumstance in establishing his guilt, not sufficient of itself to establish his guilt, but a circum- stance which the jury may consider in determining the proba- bilities for or against him, the probability of his guilt or inno- EVIDENCE WITNESSES. 1483 cence. The weight to which that circumstance is entitled is a matter for the jury to determine in connection with all the other facts and circumstances called out in evidence on the trial of this case.^ 1 Xye, J., in State r. Dedrick, Loraine Co. Com. Pleas. This substantially follows an instruction approved in People i\ Forsytlie, 65 Cal. 102. Flight of accused in tiie absence of a good motive is competent evidence. It is not necessary to show that the tlight was on account of the charge. State v. Frederick, 69 Me. 400. Fliglit raises a presump- tion of guilt. State v. Gee, 85 Mo. 647; State v. Brooks, 92 Mo. 542. Abbott, J., in Donnall's Case (Trial of Robert Saule Donnall, London, 1877), charged the jury that, "a person, however conscious of inno- cence, might not have the courage to stand a trial; but might, although innocent, think it necessary to consult his safety by flight." Kennedy r. Com., 14 Bush, 341, is an authority against admission of explanatory matters as to flight, Init the accused may certainly explain. Sec. 1745. Consideration of improper unanswered questions by jury. Gentlemen of the jury, some questions have been asked of witnesses which were not permitted to be answered by them. The fact that questions have been asked should not be considered by j'ou, except as they have been permitted to be answered by the witnesses. You should determine the case and the facts necessary to be proved to establish the guilt of the defendant from the evidence which has been permitted to be given to you and not threafter excluded from your consideration. Sec. 1746, Conflict in testimony. When there is conflict between witnesses in their testimony, the rule for guidance of the jury is that preference should be given to that witness who has the least inducement from interest or other motive to testify falsely. Again, in determining which of the witnesses are worthy of credit, you should consider whether each statement is probable or improbable. You are not obliged to believe the statement or statements of any wit- ness who testifies before you merely because the witness made 1486 INSTRUCTIONS TO JURY. such statement or statements. You have a right, in the exer- cise of your intelligence and in the light of your experience, to consider whether the statement or statement's accord with the probability of truth. And, again, in passing on the credit of the witness, you should consider whether any of the witnesses have been impeached.^ 1 Pugh, J., in State v. Abbott, et al., Franklin Co. Com. Pleas. Sec. 1747. Reasonable doubt. A reasonable doubt is an honest uncertainty existing in the minds of a candid, impartial, diligent jury, after a full and careful consideration of all the testimony, with an eye single to the ascertainment of the truth, irrespective of the conse- quences of their finding. It is not a mere speculative doubt, voluntarily excited in the mind in order to avoid the rendition of a disagreeable verdict. Such a doubt is considered by the law as merely captious, and as an unreasonable one. To acquit upon trivial suppositions and remote conjectures is, says an eminent jurist, a virtual violation of the juror's oath and an offense of great magnitude against the interests of society — directly tending to the disregard of the obligation of a judicial oath, the hindrance and disparagement of justice and the encouragement of malefactors. On the other hand, the jury ought not to condemn, unless the evidence removes from his mind all reasonable doubt as to the guilt of the ac- cused, and he would venture to act upon it in a matter of the highest concern and importance to his own interests.^ A reasonable doubt "is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they can not say they feel an abiding conviction to a moral certainty of the truth of the charge."^ **A verdict of guilty can never be returned without convinc- ing evidence. The law is too humane to demand a conviction while a rational doubt remains in the minds of the jury. You will be justified and are required to consider a reasonable doubt EVIDENCE — WITNESSES. 1487 as existing if the material facts, without which guilt can not be established, may fairly be reconciled with innocence. In human affairs absolute certainty is not always attainable. From the nature of things reasonable certainty is all that can be attained on many subjects. When a full and candid consideration of the evidence produces a conviction of guilt, and satisfies the mind io a reasonable certainty, a mere captious or ingenious artificial doubt is of no avail. You will look, then, to all the evidence, and if that satisfies you of the defendant's guilt, you must say so. If you are not fully satisfied, but find only that there are strong probabilities of guilt, your only safe course is to acquit."^ 1 Judge Minshall, in the Giddings Trial. - Approved in Morgan i\ State, 48 O. S. 377, as given by C. J. Shaw in ^^ ebster case. 3 By Judge Birchard in Clark r. State, 12 Ohio, 49.5. Approved in Mor- gan V. State, 48 0. S. 377. Sec. 1748. Drunkenness no excuse for crime — May be consid- ered for what purpose. "Drunkenness is no excuse for crime. Crime, when all of the acts of the hand and mind which constitute it actually exist, is not the less criminal when committed by a person intoxicated. Yet, nevertheless, when purpose, premeditation, and delibera- tion are necessary ingredients of the crime, as in murder in the first degree, evidence of intoxication is admissible, and proper to be taken into consideration by the jury, to determine the question as to the intent, and premeditation and deliberation. But drunkenness is a distinct and substantive fact, and when set up by the defendant as bearing upon these ingredient's should be satisfactorily shown by testimony to have actually existed, and that it was not simulated or assumed, it must not be left to mere conjecture or assumption. Unless the drunkenness is shown to have be-^n to such an extent as to destroy the reasoning facul- ties for the time, that is, that accused was so drunk that he did not know what he was about, it is not entitled to great weight. * * * If the jury find * * * that the killing was done 1488 INSTRUCTIONS TO JURY. while the defendant was drunk, and in a moment of passion, * * * these are proper circumstances to be considered by you in order to determine whether the killing is manslaughter or not. * * * If the defendant was suffering from an attack of the delirium tremens, or total deprivation of his mental fac- ulties, * * * superinduced by intoxication, * * * this exempts the defendant from responsibility for crime, like insan- ity produced by any other cause. "^ 1 Davis V. state, 2.5 0. S, 369. "Intoxication is no defense to a prosecu- tion for crime; but in some cases evidence of intoxication is ad- missible to show that no crime has been committed, or to show the degree or grade of a crime; and in the prosecution for mal> iciously shooting with intent to wound, evidence that the defendant was so much intoxicated that he could not form or have such intent, is admissible." Cline v. State, 43 O. S. 332. CHAPTER C. FALSE CLAIMS— MAKING OUT AND PRESENTING TO PUBLIC OFFICERS. SEC. 1749. False claim under Code, sec. 3. Conspiracy. 13105. 4. Weight of evidence — Cred- 1750. Legal knowledge of a fact de- ibility. fined. 5. Proof of prior and subse- 1751. Intent — Proof of. quent similar acts. 1752. False claim, bill or account — 6. Presumption of innocence. Presented by state officer. 7. Uncorroborated testimony 1. The statute. of accomplice. 2. The indictment. 8. Circumstantial evidence. Sec. 1749. False claim under Code sec. 13105. A false claim may be defined as one that is untrue. For example, if a claim is made for more bricks than were furnished, or for more labor in excavation than was done, such a claim is a false claim. The word fraudulent involves a somewhat different idea. A fraudulent claim against the city may be defined as a false claim "gotten up or contrived by some person or persons with intent to present it for payment, and thus to defraud" the city. You will perceive from these definitions that a false claim has not as many elements as a fraudulent claim. A false claim is not a fraudulent claim : but a fraudulent claim is a false claim and something more added. That is. it is a false claim gotten up or contrived by some person or persons with the intention, with the purpose, to present it for payment, and thus to defraud the party against whom it is preferred.^ 1 Pugh, ,T.. in state r. Abbott, ct ah. Franklin Co. Com. Pleas. Sec. 1750. Legal knowledge of a fact defined. The term legal knowledge is used because legal is not synony- mous with knowledge as it is understood in common or ordinary talk among men. Mere negligence, or the absence of ordinar}'^ 1489 1490 INSTRUCTIONS TO JURY. business prudence, in the transaction of the business of con- structing the sewer and in presenting the claims by the defend- ants, would not be equivalent to knowledge, it would not show that they had such knowledge, guilty knowledge. To warrant you in finding that the defendants, or either of them, knew that the claim was either false or fraudulent, you must be satisfied that they, or the ones against whom you so find, were aware of such facts or circumstances in relation to the claim, as would have created the belief in the mind of an ordinarily prudent and intelligent person that the claim was, in some respect, false or fraudulent. ' ' In criminal as well as in civil affairs, every man is presumed to know everything that he can learn upon inquiry, when he has facts in his possession which suggest the inquiry." It is not true that a person is not chargeable with any more knowledge than he chooses to have ; he is not permitted to close his eyes and ears, when he pleases, upon all sources of informa- tion, and then excuse his ignorance by saying that he did not, or does not, see or hear anything. Making a still further application of this law to this case, if you find, from the evidence, that either or all of the defendants had knowledge or information of facts or circumstances in rela- tion to this claim, which were sufBcient to put an ordinarily prudent person upon inquiry, and which were of such a nature that the inquiry, if prosecuted with reasonable diligence, would certainly have led to the discovery that the claim M'as, in any respect, in any particular, false or fraudulent, then you may presume that he or they, as the case may be, knew the claim was thus false or fraudulent. That state of facts, if proved, may have the same force and effect as if it had been proved that he or they had actual knowledge of the false or fraudulent char- acter of the claim.* 1 Pugh, J., in State v. Abbott, Franklin Co. Com. Pleas. Sec. 1751. Intent— Proof of. There can be no crime where there is no criminal intent. An act does not make the actor guilty unless his intent was criminal. FALSE CLAIMS — MAKING OUT AND PRESENTINQ. 1491 This wise, just, and reasonable rule is firmly settled in the whole of the land, is widely known and approved among men, and is recognized and observed in every enlightened system of juris- prudence. When an act forbidden by law is proved to have been knowingly done, no further proof is needed on the part of the state to obtain a conviction in the absence of justifying or excusing facts, since the law in such a case prima facie pre- sumes the criminal intent. It is not a conclusive presumption which shuts out explanation and justification on the part of the defense. The law infers the intent from the act and its charac- ter. Although the act forbidden by law was knowingly done, yet, if it was not done with a bad purpose, the defendant may rebut the prima facie presumption by showing that the act was done from a pure motive. Therefore, in this case, if the state lias convinced you, to the exclusion of all reasonable doubt, that the defendants presented a false or fraudulent claim for pay- ment to the director of accounts, knowing it to be false or fraud- ulent, the intent to cheat and defraud would be prima facie pre- sumed against such of the defendants as did that, and the state was not required to offer proof to show intent. But if the facts and circumstances preceding the act, or contemporaneous with and being part of the transaction itself, as disclosed by the evidence, showed that the claim was pre- sented from a pure motive, that is rebuttal of the presumption of intent. The prima facie case made by the state in such an instance and in that way does not take away the presumption of innocence from the defendant, or deprive him of a reasonable doubt in the minds of the jury. The indictment charges only an intent to defraud. It is not necessary, therefore, that the state should have proved that the city had been actually de- frauded. If you are convinced that the defendant knew the false or fraudulent character of the claim when it was presented, you are not obliged to look further than that to find the intent to cheat and to defraud on the part of the defendant.* iPugh, J., in State v. Abbott, rt ah, Franklin county. Indictment for presentinf,' false voucliprs. This may be so framed to meet any case upon the question of intent. 1492 INSTRUCTIONS TO JURY. Sec. 1752. False claim, bill or account — Presented by state officer. 1. The statute. 2. The indictment. 3. Conspiracy. 4. Weight of evidence and credibility. 5. Proof of prior and sviuilar acts. 6. Presumption of innocence. 7. Uncorroborated testimony of accomplice. 8. Circumstantial evidence. 1. The statute. It is provided by statute, gentlemen of the jury, that whoever, knowing the same to be false or fraudulent, makes out or presents for payment, or certifies as correct to the auditor of state, any claim, bill, account, or other evidence of indebtedness, which is false or fraudulent in whole or in part for the purpose of procuring the allowance of the same or an order for the payment thereof out of the treasury of the state, and whoever, knowing the same to be false and fraudulent, receives payment of any such claim, account or other evidence of indebtedness from the treasurer of state, shall, if such evi- dence of indebtedness so made out and presented or so certified or on which payment is received is false or fraudulent to the amount of $ or more, he shall be imprisoned in the pen- itentiary not more than ten years or less than one year, etc. 2. The indictment. The indictment in this case charges the defendant with having done three of the things, each of which is forbidden by this statute, and so charges in three counts. This indictment goes with you to your jury room and it has been so thoroughly threshed out and explained to you in detail during this ease that I consider no further explanation of it necessary here. 3. Conspiracy. In this case evidence has been adduced by the state for the purpose of establishing a conspiracy between the defendant, S. and B. The acts of B. in this case can not be charged to the defendant, S., nor is he responsible therefor FALSE CLAIMS MAKIXG OUT AND PRESENTING. 1493 unless the state has. to the degree of proof I have heretofore stated, proven to you that there was an agreement between S. and B. to the effect tliat they would do the things as charged in either one, two or all the three counts of this indictment. A conspiracy exists, gentlemen of the jury, where two or more persons agree to do an unlawful thing. This agreement need not be in writing. It need not be by expressed words necessar- ily. It is sufficient if there is a common understanding between them, either express or tacit, to the effect that they would do the unlawful thing. But this conspiracy, gentlemen of the jury, can not be proven by the declarations or acts of one conspirator which are made outside of court and not under oath. If the conspiracy has been proven, then the act, as well as the declara- tions, of each one will become and are in law the acts of the other, provided such acts or declarations are done or made in further- ance of the common plan and before the completion of the conspiracy. That is to say, during the existence of it. There- fore, in this case, gentlemen of the jury, if you should find from the evidence that B. and the defendant, S., had agreed to make out a false and fraudulent voucher which they knew to be false and fraudulent, for the purpose of having it presented to the state auditor to obtain a warrant on the treasurer for it, it would make no difference who goes to the state auditor to get the war- rant nor who draws the money. Both would be guilty. And that same doctrine applies to any acts with reference to such conspiracy and in carrying them out. 4. Weight of evidence and credibility. "With reference to the weight of the evidence, I say to you, gentlemen of the jury, that you are the sole judges of tlie credibility of the witnesses and of the weight to he given their testimony. That function belongs to you. and not to th(' court, and this court can not tell you, and is not permitted by law to tell you, what you shall believe and what you shall not believe, or what degree of cred- ence or credibility you shall attribute or attacb to any evidence or to any witness' t<'stimony. It is yoni- pfoviuee. therefor(% to determine exclusively the weight which shall be attached to 1494 INSTRUCTIONS TO JURY. any witness' testimony, and you may, therefore, believe all that a witness says; you may believe a part of it; or you may believe none of if. You may, in your discretion, require no corroboration of a witness ; you may require little corroboration ; you may require much corroboration. If the evidence alto- gether considered convinces you beyond a reasonable doubt of the truth of the charges made in any one or more of the counts of this indictment, that is sufficient for a conviction. If it fails to so convince you, you must acquit. 5. Proof of prior and suhsequent similar acts. In this case, gentlemen, there has been introduced evidence of prior and sub- sequent similar acts to those charged in this indictment. It is a well settled principle of law that prior or subsequent wrong- ful acts, although crimes, are not evidence tending directly to establish the crime for which the defendant is on trial. In other words, evidence that the defendant may have committed a crime similar to this at a prior date or at a subsequent date is not received for the purpose of showing that he must have committed this crime. That is not the law. In certain kinds of cases where it is necessary for the state to prove a plan or motive, evidence of prior and subsequent similar transactions is admitted for the sole purpose of proving a plan, motive or intent in the case on trial, and for the purpose of negativing any innocent intent or plan which might be drawn from the evidence of the single plan alone. If the state has so proven the charges of any one or more of the counts, the failure of the commissioners of public printing to approve the vouchers is not a defense. 6. Presumption of innocence. By the plea of not guilty in this case, the defendant not only denies every material allegation and averment of the indictment presented against him, but he stands clothed with the legal presumption of innocence, and this presumption remains with him in the examination and con- sideration of every fact and proposition necessary to be estab- lished on the part of the state. This presumption is not a mere matter of form, but it is a real protection with which the law FALSE CLAIMS MAKING OUT AND PRESENTING. 1495 shields hira and to be overcome by that measure of proof which con^^nces your mind of his guilt beyond the existence of a reasonable doubt. This indictment itself creates no presumption of guilt. It is not to be considered by you as furnishing any evidence against the accused, and it justifies no unfavorable inference on your part against him. The guilt or innocence of any defendant is to be determined upon the evidence sub- mitted, upon the trial; and as I have said, the presumption of innocence follows and goes with the defendant through the trial and remains until overcome and overthrown by proof of guilt sufficient to exclude every reasonable doubt. 7. Uncorroborated testimomj of accomplice. While it is a rule of law that a person accused of crime may be convicted upon the uncorroborated testimony of an accomplice, still you ought not to convict upon the uncorroborated testimony of an accomplice alone, unless, after careful examination of such testimony, the jury is convinced beyond a reasonable doubt of the guilt of the defendant. You are, however, in this case as in every other case, to look to, weigh and consider all of the evidence. Wliat is meant by corroboration in this connection is evidence other than the accomplice's testimony. In regard to the character, scope and sufficiency of the testi- mony and evidence corroborating an accomplice's testimony, the court charges you that it is not essential that such corrobora- tive evidence shall cover every material point testified to by the accomplice to warrant a verdict of guilty against tlie defendant on trial. You as solo judges of the credibility of the witnesses and of the testimony and evidence submitted to you, will deter- mine to what extent, if any, you require corroboration in order to believe the testimony of an accomplice to be true, and the amount and extent of corroboration, whether little or great, is for you to determine. You will, therefore, look to and consider the other evidence adduced at the trial, as well as the testimony of the accomplice, and determine to what extent, if at all, it establishes the commission of the offense charged in the indict- ment, and the defendant's connection therewith. 1496 INSTRUCTIONS TO JURY. 8. Circumstantial evidence. In this case the state is relying upon circumstantial as well as direct evidence to support the charge made in the indictment. Circumstantial evidence is proof of a series of facts other than the facts in issue, which by- experience have been found so associated with that fact, that in the relation of cause and effect, they lead to a certain and satisfactory conclusion. In order that the defendant's guilt shall be proved beyond a reasonable doubt, it is not essential that each circumstance should be proved beyond a reasonable doubt, unless such circumstance is a necessary link in a chain of circumstances, which chain of circumstances is necessary to a conviction. A person may be properly convicted by a large number of circumstances, no one of which, alone, is established beyond a reasonable doubt. ^ 1 State V. Slater, Franklin County, Dillon, J. CHAPTER CI. FALSE IMPRISONMENT. SEC. 1753. False imprisonment defined. 1754. Another definition — Means of accomplishing detention or restraint other than by formal arrest. 1755. Different form of definition — Detention while under investigation at police station. 1756. Trespass to person — Elements — Definition. 1757. Burden on plaintiflf to prove unlawful restraint. 1758. Arrest and imprisonment. 1759. Arrest by officer without war- rant. 1760. Distinction between felonies and misdemeanors. 1761. Person arrested without war- rant cannot be held longer than is necessary to obtain warrant. 1762. Arrest of witness without process. 176.3. Liability of several arresting ofiicers. 1764. Probable cause. 1765. Probable cause — Right of po- lice department to make investigation. 1766. Responsibility of chief of po- lice if j)erson brought in for investigation under suspicion of felony, but without formal arrest, where there is a formal detention by mistake. 1767. Damages. 1768. False arrest and detention of guest at hotel supposed to be using room for im- moral purposes. 1. Statement of claim. 2. Arrest and detention. 3. Responsibility of hotel proprietor for arrest — Communication of facts by him to officer. 4. Claim of justification that wife of guest occupied room without right. 5. Did proprietor participate in arrest. 6. Conijiensatory damages. 7. Exemplary damages. 1769. False imprisonment where fact of imprisonment and discharge conceded. 1. Statement of claims of parties. 2. Burden of proof on plaint- iff satisfied by fact of imprisonment and dis- charge. 3. Burden on (Icfi-ndant to prove! justification that arrest was made when plaintilf in commissic«i of misdemeanor. 4. When arrest may be made for misdemeanor. 1407 1498 INSTRUCTIONS TO JURY. Sec. 1753. False imprisonment defined. False imprisonment is the unlawful arrest and detention of the person of another, with or without a warrant or other pro- cess. It consists in an unlawful restraint upon a man's person, or control over the freedom of his movements, by force or threats ; and every restraint or confinement is unlaw^ful where it is not authorized by law. The actual detention of a person, and the unlawfulness thereof, constitute the trespass ; the gravamen being the unlawfulness of the imprisonment or the detention.^ 1 Clark V. Smith, 37 Utah, 116, 106 Pac. 653, Ann. Cas. 1912, B. 1366. Sec. 1754. Another definition — Means of acoomplishing de- tention or restraint other than by formal arrest. False imprisonment is necessarily a wrongful interference with the personal liberty of an individual. The wrong may be committed by words alone, or by acts alone, or by both, and by merely operating on the will of the individual, or by personal violence. It is not necessaxy that the individual be confined within a prison, or within walls ; or that he be assaulted, or even touched. Nor is it necessary that the w^rongful act be committed with malice, or ill will, or even with the slightest wrongful intention. Nor is it necessary that the acts be under the color of any legal or judicial proceeding. All that is necessary is that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or acts he fears to disregard.^ 1 Comer i\ Knowles, 17 Kan. 436; Gamier r. Squires, 62 Kan. 321: Whit- man V. Railway, 85 Kan. 150, 116 Pac. 234; Ann. Cas. 1912 B. 722. In the latter case, where a passenger on railway train was detained by conductor to obtain statement, the court remarked that it found some difficulty in bringino; the facts within the principles that apply to false arrest or imprisonment. FALSE IMPRISONMENT. 1499 Sec. 1755. DijBFerent form of definition — Detention while un- der investigation at police station. False imprisoumeut is an iujury to the right of personal lib- erty. It consists iu the total, or substantially total restraint of a person's freedom of locomotion. Any general restraint is sufficient to constitute an instrument. A person, however, can not be imprisoned who is not cogni- zant of any restraint, nor who is induced by false statements to go where he otherwise would not have gone. A formal arrest may not be essential to a false imprisonment, as it may be committed by words alone, or by acts alone, or by both, or by merely operating on the will of the person. It is not necessary that he should be confined within a prison, or within walls. It is not essential that the act be committed with malice or ill will, or even with the slightest wrongful intention. Nor is it necessary that the act should be done under color of any legal proceeding. All that is essential is that the individual be re- strained of his liberty without any sufficient legal cause there- for, by words or acts which he fears to disregard.^ The imprisonment must be against the will of the party com- plaining ; for if he goes willingly, or of his own accord, there is no detention.- So, if upon suggestion to a person that he go to the office of the chief of police at ihe city prison to have an interview with the chief of police concerning an alleged criminal charge against him, he goes to such prison voluntarily, without compulsion, where he has such interview behind closed doors, but without any detention by words or force, there is no unlawful detention. But a detention, even for a short time, in a room of the city prison or in the corridor where prisoners are usually taken, though not placed in a prison cell, but which was not intended being through the mistaken act of a subordinate police officer, is sufficient to constitute an unlawful detention, provided it was done without probable cause. 1 Kinkead, Torts, sec. 212; Comer v. Knowloa, 17 Kan. 441. 1500 INSTRUCTIONS TO JURY. " Kinkead, Torts, sec. 214; Floyd v. State, 12 Ark. 43, 54 Ann. Dec. 250; State v. Lunsford, 81 N. C. 528. Sec. 1756. Trespass to person — Elements — Definition. Trespass to the person is an injury committed by one person upon another with violence actual or implied, known in law as false imprisonment. To constitute the injury there are two points. 1. The detention of the person, and, 2. The unlaw- fulness of such detention. Every confinement of the person is an imprisonment whether it be in a common prison or a private house, or even by forcibly detaining one in the street. Unlaw- ful or false imprisonment consists in such confinement or deten- tion without sufficient authority, which authority may arise from some process from the courts of justice, or from some special cause warranted from the necessity of the thing, such as the arrest of a felon by an officer or a private person without war- rant.^ 1 E. P. Evans, Judge, in Solin v. Patton, Franklin Co. Com. Pleas. Cooley on Torts (2d Ed.), p. 195, et seq. Any deprivation of the liberty of another, without his consent, whether it be actual violence, threats or otherwise, constitutes an imprisonment within the mean- ing of the law. Sec. 1757. Burden on plaintiflf to prove unlawful restraint. The burden is on tlie plaintiff to prove not only the fact of detention or imprisonment, but also that he was restrained or detained or imprisoned by the defendant, without a warrant, or other process, or by threats or force. This he may do by proof of facts or circumstances which give rise to the inference or presumption that the restraint or imprisonment was wrong- ful or unlawful. But when plaintiff by his own evidence shows that he was detained or imprisoned as the result of judicial proceedings, and by the issuance and execution of a Avarrant, or other legal ])rocess issued thereon, the burden then is upon him to show something more than a mere detention or imprisonment. In FALSE IMPRISONMENT. 1501 such case there is no presumption arising from the mere arrest and imprisonment, and it is therefore incumbent on plaintiff to prove that such arrest and imprisonment was unlawful.^ 1 Smith V. Clark, 37 Utah, 116, 106 Pac. 653, 1912 B. 1366. Sec. 1758. Arrest and imprisonment — What constitutes. To constitute an arrest and imprisonment it is not necessary that the party making the arrest should actually use violence or force toward the party arrested, or that he should even touch his body.^ If he professes to have authority to make the arrest, and he commands the person by virtue of such pretended author- ity to go with him, and the person obeys the order, and they walk together in the direction pointed out by the person claiming the right to make the arrest, this constitutes an arrest and im- prisonment within the meaning of the law. Any deprivation of the liberty of another without his consent whether it be by actual violence, threats, or otherwise constitutes an imprisonment within the meaning of the law.^ 1 Cooley on Torts, 169; Addison on Torts, sec. 799. 2 From Sohn v. Patton, Franklin Co. Com. Pleas, E. P. Evans, Judge. Manual seizure is not necessary to constitute an arrest. Hill v. Taylor, 50 Mich. 549. "It is the fact of compulsory submission which brings a person into imprisonment." Brusiiabcr r. Slege- mann, 22 Mich. 266. As to what constitutes imprisonment see Cooley on Torts, pp. 195-6. Sec. 1759. Arrest by officer without warrant. It is expressly provided by statute in Ohio (Code, see. 13493) that when a felony has been committed, any person, whether an officer or a private person, may without warrant arrest another whom he believes, and has reasonable cause to believe, is guilty of the offense and may detain him until a legal warrant can be obtained, and the statute further provides that a sheriff, deputy- sheriff, eonstable, marshal, or deputy-marshal, watchman, or public officer shall arrest and detain any person found violating 1502 INSTRUCTIONS TO JURY. any law of the state, or any legal ordinance of a city or village, until a legal warrant can be obtained. 1 Sohn V. Patton, Franklin Co. Com. Pleas; Evans, Judge. See Cooley on Torts (2d Ed.), pp. 199, 201, 202, 203. A right of arrest exists where there are well-grounded suspicions of felony. State r. West, 3 O. S. 509. Where misdemeanor is committed within presence of officer he may arrest without warrant. State v. Lewis, 50 O. S. 179. Marshal's power to arrest without warrant. Code, sees. 1849, 7129; Ballard v. State, 43 O. S. 340. Sec. 1760. Distinction between felonies and misdemeanors. The distinction between felonies and misdemeanors in this state is this: Offenses which may be punished by death or im- prisonment in the penitentiary are felonies; all other offenses are misdemeanors.^ 1 Sohn V. Patton, Franklin Co. Com. Pleas, Evans, J. Sec. 1761. Person arrested without warrant can not be held longer than is necessary to obtain warrant. A person who has been arrested without a warrant can only be held for such reasonable time as may enable the person mak- ing the arrest to obtain a warrant. It is the duty of the person so making an arrest to take steps to secure a warrant within such reasonable time after such arrest as he may be able to obtain the same. So, therefore, if the person be held in custody for any longer period than is reasonably necessary to obtain a legal warrant for his detention, he will have a right of action for false im- prisonment against the officer or person who made the arrest, as well as against those by whom he has been so unlawfully held in custody. By the failure to procure the necessary warrant for the prisoner's detention, the imprisonment becomes unlawful from the beginning, and all concerned in it are equally liable,^ 1 Leger v. Warren. 02 O. S. r^OO. Sec. 1762. Arrest of witness without process. There is no law in Ohio which authorizes an officer to arrest, without process, a witness and hold him until he gives bond. FALSE IMPRISONMENT. 1503 If the plaintiff therefore was arrested and imprisoned as a wit- ness only until he gave bond for his release, such arrest and imprisonment was unlawful, and is what the law denominates false imprisonment.^ 1 Sohn r. Patton, Franklin Co. Com. Pleas, Evans, .1. Sec. 1763. Liability of several arresting ofl&cers. If the jury find from the evidence that the plaintiff has been falsely imprisoned as alleged in his petition, and that he was thus falsely imprisoned by the joint acts of several wrong-doers, then such wrong-doers are jointly and severally liable for such joint act, and the plaintiff is under no obligation to sue all such wrong-doers, but he may at his election proceed against any one or more of them. If you shall find from the evidence that officers N. and B., and they alone, falsely arrested and imprisoned the plaintiff at the time in question, still if the evidence shall further show by a preponderance thereof that the defendant, E., was then present and acting in concert with the said N. and B., and was wrongfully inciting them to arrest or imprison the plaintiff, then the defendant, E., is equally liable with the said N. and B., and if N. and B. are guilty of falsely imprisoning the plaintiff, then the defendant, E., is equally guilty if he procured them to so imprison the plaintiff, or if he aided or abetted them in so doing. If you shall find from the evidence that officers N. and B., and they alone, arrested and imprisoned the plaintiff, and that the defendant, E., was present at the time of said arrest and imprisonment, still if you shall find that the said E. did not procure the plaintiff to be so arrested or imprisoned, or that he did not in any way aid, abet, or assist in the arrest and imprison- ment, or advise or encourage it, then he is not guilty.' 1 Sohn V. Patton, Franklin Co. Com. Pleas, Evans, J. See Leger v. War- ren, 62 O. R. 500. Sec. 1764. Probable cause. Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant 1504 INSTRUCTIONS TO JURY. a reasonably prudent, cautious man in the belief that the person detained was guilty of the felony committed. Now in considering the question of probable cause, in the event that you find that this detention was through and by the direc- tions of the chief of police, you will look to all the circumstances, to all the evidence that you have heard in this case, not%vith- standing the court has discharged certain defendants, but you may consider all that was said and done by all of these parties, the evidence relating to the burglary, the testimony of each and every person who has been on the witness stand, and determine in your best judgment whether or not there was reasonable ground of suspicion supported by circumstances sufficiently strong as to warrant a reasonably prudent, cautious man in the belief that the plaintiff was guilty of this crime of robbery. If you find that there was such reasonable ground of suspicion, then, of course, there would be probable cause, and it would be your duty to find a verdict in favor of the defendant. If, on the other hand, you believe and find by a preponderance of the evidence that there was not reasonable ground of suspicion and that the circumstances were not sufficient to warrant a reason- ably prudent, cautious man in the belief that this plaintiff was guilty of the crime of robbery of the Davidson property, then there would be no probable cause and the detention, in the event that you find that Carter directed the detention, would be unlaw- ful and the plaintiff would be entitled to your verdict.^ 1 Bogner v. Davirlson. Franklin Co. Com. Pleas. Kinkead. J. Sec. 1765. Probable cause— Right of officers of police depart- ment to make investigation. In considering the matter of reasonable or probable cause and determining that fact, you may take into consideration this proposition as to the law which I will give you : For the protection of society and the prevention of crimo. there has been established under the law in the city of Colnm- bus, a department of Public Safety, containing a police depart- ment, having a chief of police, detectives and policemen. It is FALSE IMPRISONMENT. 1505 their duty when a eriaie of felony has been committed to make an investigation and ferret out, if possible, the perpetTator or perpetrators of such felony so committed, and in making such investigation, if they find a reasonable ground of suspicion pointing to a certain individual or to certain individuals as the one or ones guilty of such crime, and such suspicion is supported by circumstances sufficiently strong to warrant a cautious man in his belief that such person or persons are guilty, then I charge you that it is within the right of the police departmcTit to cause such suspected person or persons to be brought before the chief of police and investigated and interrogated as to such crime, and no cause of action will lie therefor against such officials, if only an investigation is made, and there is no unlawful de- tention. The jury may take into consideration all that was done by way of investigation, all of the Icnowledge that may have come home to the defendant in respect to this alleged offense, as reflecting on the question of probable cause.^ 1 Bogner v. Davidson, Franklin Co. Com. Pleas, Kinkead. J. Sec. 1766. Responsibility of chief of police if person brought in for investigation, under suspicion for a felony, but without formal arrest, where there is a formal detention by mistake. Who was responsible for the detention of the plaintiff in this case? Was it the chief of police, or was it officer C, acting either from force of habit, or from a misunderstanding of the directions given by the chief, or was he acting under a specific order given him by the chief of police? Tf he was acting as Haimed by the plaintiff in his evidence, under the directions of chief of police, then, of course, he was imprisoned through the direct orders of r-liiof of police Tarter. The clnim f)f IIm- nlnintifF is th;it tlie cliief of police said "Take this man down stairs and lock liim un." Tliat is the precise lari£ruaf?e he uses in his tostimony. The claim of the defendant, tho chief of polir-o, is "Take this man down in the corridor and let him wait until his wife comes.'* 1506 INSTRUCTIONS TO JURY. Now upon that testimony you will determine whether or not the imprisonment was through the direction of chief of police, or whether it was not. If it was not under the specific order or direction of the chief of police, then, gentlemen of the jury, I charge you that if it was made by officer C, either through a misunderstanding or on his own responsibility, and if he was detained under those circumstances without the knowledge of chief of police, then the law will not hold the chief of police for that detention if it was unlawful unless or until the chief of police had knowledge of that detention. The law places the responsibility upon the chief of police for the custody of all prisoners that are placed in the city prison. But the chief of police can not be responsible under any and all circumstances, and can only be responsible when he has a duty to perform or when he has knowledge brought to him in reference to or concerning the detention of prisoners. Now if you determine under the instructions just given you that chief of police was not responsible, did not intend and did not know that the plaintiff was sent down stairs to be locked up and he did not have any knowledge that he was locked up, and had no opportunity to right the mistake, if it was a mistake, then there is not any responsibility on the part of the chief of police, the defendant. But if, on the other hand, you find from the evidence that the claim of the plaintiff is right, then I say to you that under such circumstances the detention would be unlawful, unless it was on a reasonable ground of suspicion.^ 1 Bogner v. Davidson, Franklin Co. Com. Pleas, Kinkead, J. Sec. 1767. Damages. If you find that the defendant is guilty as charged in the petition, he is liable to the plaintiff for such damages as the law denominates compensatory, although he may have acted in good faith and in the honest belief that he was discharging his duty as an officer; but if you shall find that the defendant arrested and imprisoned the plaintiff maliciously, then the defendant is liable to the plaintiff for compensatory damages, and you may, FALSE IMPRISONMENT. 1507 if you see proper, also assess further damages as smart money, that is, exemplary damages. The compensatory damages are allowed to compensate the plaintiff for the actual injury he has sustained. Exemplary damages are given as smart money in the way of pecuniary punishment. If you find for the plain- tiff, you should allow him full compensatory damages, that is, such as will fully and reasonably compensate him for the injury he has sustained. The elements for which compensatory dam- ages may be allowed include pain and suffering, if any, both mental and physical, the loss of time, if any, in consequence of such false imprisonment, and injury, if any. to the reputation or social position, as well as for sliame and mortification caused by the false imprisonment ; and also reasonable attorney 's fees to the plaintiff for the services of the attorneys in the prosecu- tion. And if you find that the defendant not only falsely, but that he also maliciously, imprisoned the plaintiff, then you may allow the plaintiff, in addition to compensatory damages, such further sum by way of exemplary damages as you in your judgment may think just and proper in view of all the evidence and circumstances. But if you should find from the evidence that the defendant is guilty as charged, but that in making the arrest complained of, and in the detention of the plaintiff, the defendant acted in good faith and x^athout malice, then such fact should be con- sidered by the jury and the damages awarded should be confined to compensatory only. Exemplary damages should not be allowed against an officer who makes or causes an illegal arrest unless he acts in bad faith, or is guilty of some oppression or misconduct.* 1 Sohn V. Patton, Franklin Co. Com. Pleas. Evans. J. Sec. 1768. False arrest and detention of guest at hotel sup- posed to be using room for immoral purposes. 1. Statement of claims. 2. Arrest and detention. 3. Responsibility of hotel proprietor for arrest. 1508 INSTRUCTIONS TO JURY. 4. Claim of justification that unfe of guest occupied room luithout right. 5. Did the proprietor participate in arrest? 6. Compensatory damages. 7. Exemplary damages. 1. Statement of claims. The action is one for false arrest or imprisonment in which the plaintiff seeks to recover the sum of $ . The burden of proof is on the plaintiff to show that the defendant in some way participated in, and jointly with the officer caused the arrest of the plaintiff, which is the sole question of fact submitted to the jury for determination. Wh-ere more than one person participates in causing an arrest, each and all are legally responsible for damages resulting if the arrest turns out to be unlawful. It is alleged by plaintiff, and the undisputed evidence shows that plaintiff was arrested on by officer and taken in an automobile to the city prison, where he was examined by the chief of police and then discharged. 2. Arrest and detention. An arrest signifies the restraint of a man's person. Mere words are sufficient to constitute an arrest where the person submits against his will. Circumstances must be such as to indicate that the party is actually under restraint and within the power of the officer. In this case the plaintiff was told by the defendant that he would call an officer. Plain- tiff knew that the officer was coming. The officer went to the room in the hotel which plaintiff occupied, and after some con- versation, told the plaintiff he would have to go dovm before the chief of police. He went with the officer in the automobile to the city prison. To constitute false imprisonment it is not necessary that the person detained should be confined in a prison. The only essential is that the individual be restrained of his liberty without legal right therefor, the place being im- material. The court is of the opinion and so finds as matter of mixed law and fact that there was such detention and restraint of the liberty of the plaintiff in this case as to constitute false FALSE IMPRISONMENT. 1509 arrest and imprisonment, provided it was without legal cause or justification. 3. Responsibilitij of hotel propHctor for arrest — Communi- cation of facts by him- to officer. The next question then, is whether the defendant Y. is responsible for the arrest and de- tention if it was unlawful. A private citizen does not have the right to make an arrest for a mere misdemeanor. A police officer may arrest and detain a person when found at the time of the arrest violating a law of this state, such violation constituting a misdemeanor. Be- sides the one actually making the arrest others may become liable for false imprisonment by indirectly participating therein. Officers may make arrests upon information furnished them by private citizens or at the instigation of private persons if a private citizen merely calls the attention of an officer to a sup- posed commission of a crime without other direction and the officer arrests the person on his own responsibility for what he assumes to be an offense committed in his presence, for a mis- demeanor, the private citizen under such circumstances, who does nothing more than communicate the fact to the officer, does not render himself liable. Though a private citizen states to the officer what he knows of a supposed offense, or that parties are guilty of a supposed offense, even though he expresses the opin- ion that there is ground for arrest but without making any charge or requesting an arrest, does not thereby make himself liable for a resulting wrongful arrest. The answer of the defendant alleges tliat ho called an officer for tlie purpose of compelling the parties to leave tlie premises. An officer has uo authority to do any such thing. He can only arrest when a party is in the act of committing a misdemeanor, sueli as trespassing upon tlie property. Tlie jury will determine 1li(' fact wbetli(>r tbe dcf'-ndiint was responsible for causing the arrest of plaintiff. Tn order to hold defendant for tlie arrest it is necessary that he sliall have done something inori' than merely to inform tbe officer that he had a couple in 1))e room that were not married. It is incumbent upon the plaintiff to 1510 INSTRUCTIONS TO JURY. prove by a preponderance of the evidence that the defendant advised or requested, or in some manner participated Avith the officer in making or causing the arrest. If you find that de- fendant did nothing more than to state the facts to the officer, then you cannot find him responsible for the arrest. But if you find that he asked or requested the officer to make the arrest, or in some manner participated therein, then you must find him equally guilty with the officer for the arrest. 4. Claim of justification that icife of guest occupied room with- out right. The defendant seeks to justify the arrest on the ground that plaintiff Avas a guest in the hotel of defendant, hav- ing been assigned a room therein occupied by himself alone ; that on the morning defendant having been advised that a woman had come into the room assigned plaintiff, went to the room and looking through the transom saw the plaintiff and the woman fully dressed having sexual intercourse ; that he thereupon or- dered said parties to vacate the room, which they refused to do; that he thereupon called an officer for the purpose of compelling the parties to leave the premises; that upon the appearance of the officer they still refused to go ; that defendant at the time did not know the woman in the room was the wife of plaintiff; that she had not been registered as a guest of his hotel, or been in- vited or authorized by him to enter or make use of the room. This, gentlemen, the court states to you as matter of law under the facts in this case, is not a defense to plaintiff's cause of action, because the woman was the wife of the plaintiff. A hotel keeper holds out his house as a public place to which travelers may resort, and of course, surrenders some of the rights which he would otherwise have over it. A hotel keeper sustain- ing his quasi public character is invested with many privileges and burdened with correspondingly great responsibility. Except as the common law is modified by statute, an inn keeper may con- duct his inn as he deems best so long as he does not violate the rights of his guests. He may eject persons avIio are disorderly. But in this case the plaintiff had the right of occupancy of this room as a guest. His wife at the time of the arrest was not oe- FALSE IMPRISONMENT. 1511 cupying the room in the sense and meaning of a guest, that is using and occupying it at night for sleeping purposes and during the whole of a day or a material part thereof; she was there as a visitor of her husband. While a room in a hotel occupied by a guest is not in the full legal sense his dwelling house, still under proper limitations a proprietor may be bound to admit those who have business or other rightful or legal relations with a guest. This may be considered as derived from the rights of the traveler. In this case it is conceded that plaintiff's wife was stopping at the hospital with a sick child, staying there at night; that plaintiff informed the clerk that his wife was coming and was told by the clerk to have her register. But it is clear that plain- tiff on taking his wife into the room, did not state to those in charge that his wife was going into his room as a visitor. With- out regard to whether that would be a prudent thing to do, it does not affect the legal rights and duties of the parties concern- ing the arrest of plaintiff in this case. The undisputed evidence as shown by the room cards is that the defendant charged and received one dollar for the occupancy of the room by the wife of plaintiff for two days. This constitutes in law a recognition of the relation of guest of the wife of plaintiff at the hotel dur- ing the two days involved. 5. Did the proprietor participate in arrest. Directing the attention of the jury to the one question of fact which you are to decide, viz. — which is whether the defendant was jointly re- sponsible with the officer in causing and Miaking the arrest, you will determine wliether defendant liy his conduct and his state- ments became responsible for the arrest. Tf you find that he was not, your verdict will be for the defendant. Tf you find that he was responsible jointly with the officer for the arrest, your verdict should be for the plaintiff. 6. Compensatory damages. In such case you will award plain- tiff such compensatory damages as will justly compensate him for the injury sustained. The elements for which conpensatory may be allowed include pain and suffering, if any. both m'^ntal 1512 INSTRUCTIONS TO JURY. and physical, as well as for shame and mortification caused by the false arrest and detention. Compensatory damages can only be awarded in a case like this, unless the fact and circumstances appearing in the evidence disclose that the defendant acted with malice or maliciously. If it appears that defendant did act with malice, then exemplary or punitive damages may be allowed. False imprisonment is an injury to the right of personal lib- erty; the right of locomotion, to go where you please as long as you are within your own rights. It also involves some right of social position. 7. Exemplary damages. If it appears from the evidence that the defendant acted with malice or maliciously, then the plain- tiff may be entitled to exemplary or punitive damages. Exemplary damages are damages in addition to compensatory damages; they are assessed for the sole and express purpose of Betting an example so that other persons under like circumstances will have due regard for the rights of persons. If under all the facts and circumstances in this case the jury find that the defend- ant was not warranted in doing what he did, that he acted wan- tonly and recklessly, in disregard of the rights of the plaintiff; if you should believe that after hearing the statement of the plaintiff and his wife and their claims that they were married, that the defendant acted recklessly under all circumstances, that there was reasonable and fair opportunity for obtaining the knowledge of the fact before taking action, then you would be justified in assessing exemplary damages. Malice as used in law, does not mean personal ill will, hatred or revenge; it means on the other hand, a lack of good faith; such reckless and wanton disregard of the rights of another as to constitute either a willful, or wanton, or intentional violation of such right. On the question of the extent of the lack of good faith or mal- ice, you will look to all the facts and circumstances concerning the presence of the wife of plaintiff in his room, as well as the manner in which the plaintiff registered as a guest. You may ask yourselves the question, how would the presence of the wife FALSE IMPRISONMENT. 1513 in the room of plaintiff under the circumstances shown by the evidence, appear to an ordinarily prudent proprietor of a hotel, liaving due regard for the rights of his guest as well as for the good name of his hotel. You may consider what impression, if any, the facts and conditions shown by the evidence would have made on the mind of an ordinary prudent person who has and exercises proper regard for the rights of guests as well as of his o^^^l rights. If the facts and circumstances are regarded by you as suffi- cient to cause an ordinarily prudent hotel proprietor to have a just and reasonable suspicion that the plaintiff was using the room for an immoral purpose, you may consider what steps, in such event, such a proprietor would have taken or should have taken to protect his hotel from such abuses or from such an abuse, if it had actually existed. If it had turned out that the woman who was present in de- fendant's hotel and with whom plaintiff was having intercourse, which was discovered by the defendant, was not his wife, he would have had the right under the statute of this state, to have treated them both as being unlawfully upon his premises. He Avould have had the right to terminate the relation of guest and hotel proprietor. Under such circumstances, if that had been the fact, he would have had the right upon notifying them to de- part, upon their refusal to do so, to have treated them as tres- passers, and while so trespassing on his property, he would have been justified in causing their arrest for criminal trespass. But it turns out in this case that there was no such violation of law and no such right to arrest. The jury will understand that it may consider these things mentioned by the court only as reflecting on the good faith, or the want of good faith, on the part of the defendant in anything that he may have done in this case having to do with the making of the arrest. If you find that there was reasonable ground of suspicion, as before stated, supported by sufficiently strong circumstances, which would have warranted the defendant in causing the arrest of the plaintiff, you may consider such fact as reflecting upon the good faith with which he may have acted in the matter, whether he was 1514 INSTRUCTIONS TO JURY. warranted in believing under the circumstances that he had a right to cause the arrest of the parties. You may also consider the conduct of the plaintiff himself, whether he did what a rea- sonably prudent guest under such circumstances would ordinar- ily have done to dispel such suspicion and to disclose that he was not acting immorally, as reflecting upon the good faith of the defendant. The jury will look to all the evidence, facts and circumstances and determine the good faith or want of good faith of the defendant, and decide whether he acted with malice, or whether he acted prudently and in good faith. If you find that he did not act maliciously, then you will not assess exemplary damages but will award only compensatory damages. If you find that he did act with malice, you will assess exemplary damages in addition to compensatory damages. The object and purpose of exemplary damages is to assess it rather by way of penalty, to set an example to mankind in gen- eral, to teach men to have due and proper regard for the rights of others under such circumstances. You may assess as part of such exemplary damages a reasonable attorney fee to compen- sate his counsel whose services were necessary to obtain redress for his injury. The law in this state permits the jury in the assessment of ex- emplary or punitive damages to consider the standing and pe- cuniary ability of the defendant when the act is maliciously done, not otherwise. The law permits this when punishment is the object ; not necessarily or directly to enhance the amount of the damages estimated upon what he may be able to pay, but instead to enable the jury to determine to what extent plaintiff was in- jured by the wrongful conduct of the defendant.^ 1 Davenport r. Yoiin. Havlin, 1 O. X. P. (X.S.) 173: 16 Am. & Eng. Enc., .526: Com v. Mitchell. 1 Phila. 6.3; DeWolf v. Ford, 193 Mass. 397, 401. A room in an inn occupied hy a Sliest is not in a legal sense his dwelling house. DeWolf v. Ford, 193 Mass. 397, 401: Rodgers i;. People, 86 N. Y. 360. FALSE IMPRISONMENT. 1515 Sec. 1769. False imprisonment where fact of imprisonment and discharge conceded. 1. Statement of claims of parties. 2. Burden of proof on plaintiff — Satisfied hy fact of impris- onment and discharge. 3. Burden on defendant to prove justification that arrest was )nade when plaintiff in commission of misdemeanor. 4:. When arrest may he made for misdemeanor. 1. Statement of claims of parties. Plaintiff seeks to recover from the defendants in this ease the sum of $ as damages for an alleged false arrest and imprisonment. The defendants seek to justify the arrest and imprisonment on the ground that plaintiff was guilty of disorderly conduct, that he was intoxicated and that he was guilty of the use of profanity. 2. Burden of proof on plaintiff — Satisfied by fact of impi-is- onment and discharge. The hurden is on the plaintiff to estab- lish the essential elements necessary to constitute the wrong of false imprisonment. To sustain that burden he must introduce such evidence as will show a preponderance, or a greater weight of the evidence in his favor, which does not mean a greater num- ber of witnesses. When the fact of imprisonment is established, and his dis- charge without punishment is likewise established, the plaintiff is entitled to a presumption in his favor, a presumption of mixed law and fact, that such imprisonment was unlawful and that it is sufficient to constitute what may be termed a prima facie case, which satisfies the burden of proof which rests upon the plaintiff. 2. Burden on defendant to prove justification ihnt arrest was made while plaintiff in commission of misdemeanor. Now the defendant is seeking to justify the arrest and imprisonment on tlie two grounds })efore mentioned. The burden tlien is upon him to show by a preponderance of the evidence tliat the ])lain- tiff was engaged in the commission of the misdemeanors or one 1516 ESrSTRUCTIONS TO JURY. of them alleged in his answer. The burden rests upon the defendant to show that the plaintiff was guilty of disorderly conduct, or of intoxication, or of the use of profanity. 4. When an arrest may he made for misdemeanor. An arrest may be made by a police officer for a misdemeanor, — that is an act punishable by a penalty other than imprisonment in the penitenitary, — without a warrant only when the person arrested is acfually found by the officer at the time of his arrest in the actual commission of such misdemeanor. When an officer arrests a person for a crime, he is required to know what he is arrested for, and he must justify his arrest by facts, circumstances and conditions and what was said and done at the time. The liberty of men must not be interfered with unless there is reasonable and actual ground, in fact, in the case of misdemeanor, at the time of the arrest. There is no uncertainty about it at all, because the laAv requires that the person arrested must be in the actual commission of the misdemeanor at the time, otherwise he has no right to make the arrest. CHAPTER GIL FRAUD— FALSE REPRESENTATIONS, ETC. SEC. 1770. Fraud not presumed — Burden of proving. 1771. Remedies for fraud — Rescis- sion and restoration. 1772. Fraud defined. 1773. Proof of fraud. 1774. Contract to be rescinded and tender made. 1775. Election to rescind witliin reasonable time for the jury. 1776. Representation must be ma- terial. 1777. Misrepresentation by conceal- ment. 1778. False representations without knowledge of truth or falsity. 1779. Ingredients of actionable fraud — Intent to deceive — Puffing and commenda- tion. 1780. Misrepresentation to existing or past fact. 1781. Fraudulent promise coupled with present intent not to fulfill. 1782. Fraudulent promise not to engage in business. 1783. Representation as to value. 1784. .lury to find what representa- tions wer>' made — Must be relied upon. 178.5. Fraud on old person — What constitutes — Proof. 1786. Fraudulent j)urchase of goods — Essejitial elements oi fraud — ^Must have knowl- edge of falsity — Stating what is believed to be true — Statement without knowledge of truth — Must intend to deceive — Must be material — Party must be misled and dam- 1787. Fraudulent purchase of goods continued — ^Vendee may abide by or rescind con- tract. 1788. Liability of corporation for fraudulent representa- tions of agents. 1789. Fraudulent purchase of goods — Principal cannot re- pudiate fraud of agent and accept benefit of contract. 1790. Fraudulent purchase of goods — Power of agent to make statements as to credit and financial con- dition of principal in purchase of goods. 1791. Purchase of goods with in- tent not to pay for them Insolvency of purchaser conceded. 1791a. Mercantile agency — Liability for false reports as to financial statiding. 1792. Transfer of property by one in debt without consid- eration. 1517 1518 INSTRUCTIONS TO JURY. SEC. 1793. 1794. 1795. 1796. 1797. 1798. 1799. 1800. 1801. 1802 False representation in sale of horse as to being vicious — Purchaser in- jured while driving — Ef- fect of his own knowl- edge and care. Same continued — Vendor's knowledge of defects — Duty to give notice. Same continued — Measure of damages. Representations assumed to be within one's knowl- edge, but truth not known — Recklessly made. Fraud in sale of land, pre- venting examination of land. Fraudulent repiesentation as to location of city lot. Whether son fraudulently persuades parent to make beneficials of property to him. Representations as to value of stock — Such statement when actionable — Mere opinions. Fraud in obtaining insurance policy alleged by defend- ant. 1. Claim of defendant of false answers to interroga- tories. 2. Statute concerning same. 3. Burden on bim who at- tacks transaction as fraudulent. 4. Same — Degree of evidence required in such case. 5. Fraud — Its definition and elements. Measure of damages when plaintiff exchanges land for merchandise — ^Market value of land not consid- ered. 1803. False representation concern- ing merits, working and adaptability of patented machine — Claimed b y cross petition. 1. Representation and war- ranty distinguished. 2. Essentials of a representa- tion. 3. Duty of purchaser to be reasonably d i 1 i g e n t — When facts peculiarly w^ithin knowledge of oth- er party. 4. Existing facts distin- guished from opinion and dealer's talk. 5. Matters within knowledge of vendor — Purchaser without knowledge, and inspection impossible without great expense. 6. When operation and utility of an invention matter of opinion. 7. General commendation open to difference of opinion. 8. Direction to jury to ap- ply the law and find the facts. 9. Circumstances may estab- lish falsity. 10. Must be material and re- lied upon. 1804. Fraud in sale of stock in pro- posed company — Rather complete charge, embrac- ing: — 1. Burden of proof. 2. Degree of evidence re- quired. 3. Proof of intent and pur- pose — Circumstantial evi- dence. 4. Declarations — Considera- tions for the jury. FRAUD FALSE REPRESENTATIONS, ETC. 1519 5. Failure of party to offer evidence or make expla- nation naturally to be expected of him. 6. Failure to call witness. 7. Jury may reason from probabilities. 8. Failure of party to recol- lect important facts. 9. Fraud defined and ex- plained. 10. Materiality of representa- tion. 11. Promises — When fraudu- lent — When not. 12. Must be relied upon. 13. Whether written contract or previous representa- tions relied upon. 1805. Fraudulent declaration of div- idends by directors of corporation — Action against directors of cor- poration for loss by pur- chaser of stock. 1. Fraud — Burden of jiroving. 2. Intent in fraud — Wrong- ful conduct supplies. 3. Fraud defined — Knowledge of falsity, actual or im- putable, essential. 4. Same — Jury to determine whether statements made knowingly or recklessly. 5. Same — • Fraudulent divi- dend — Duties of directors of corporations — Care re- quired. 6. Same — Directors voting or assenting to declaration of dividend liable when — The statute making divi- dend unlawful when. 7. Same — Liability of direc- tors for acts of manager of corporation. 8. Same — Misrepresentation to be fraudulent must be material and relied upon. 9. Same — IMeasure of dam- ages. Sec. 1770. Fraud not presumed — Burden of proving. The court instructs the jury that fraud is never presumed, but must be proved by a preponderance of the evidence; the presumption of law is that the business transactions of every man are done in good faith and for an honest purpose ; anyone who alleges tliaf such acts are done in bad faith, or for a dis- lionest purpose takes upon himself the burden of showing, by specific acts and circumstances tending to prove fraud, that such acts were done in bad faith. The defendant is entitled to the benefit of this presumption in the consideration of this case until the jury find from the evidence that such presumption has been overcome.^ 1 Fraud may be presumed to the extent that the law presumes to intend the natural results of his acts. Jameson v. McNally, 21 0. S. 29.^, 304. Never presumed. Lake v. Doud, 10 O. 415, 420; Bohart v. 1520 INSTRUCTIONS TO JURY. Atkinson, 14 0. 228, 239 ; Landis v. Kelly. 27 0. S. 567, 569 ; Cooley on Torts, 556. As to distinction between fraud in fact and fraud in law, see Thompson on Trials, sees. 1930, et seq. Situations in which law presumes fraud. Id., sec. 1936. What is called fraud in fact, is always a question of fact for the jury. Id., sees. 1940, 1945. Sec. 1771. Remedies for fraud — Rescission and restoration. Fraud is never presumed by law, but must be proven. But where there has been such a fraud committed, as is charged in the petition, the law gives the defrauded party two remedies. He may, at his option, rescind the whole transaction and demand that the parties be restored to their original relations, or he may keep the property he has received and sue for the difference between its real value and that amount which he has paid for it. He has adopted, in this case, the latter course, and he enters suit for that difference from what he says was the real value of the property.^ 1 Wright, J., in Randolph v. Ammon. 51 O. S. 585. The vendor may on discovery rescind the sale and sue for the value of the property. Thurston v. Blanchard, 22 Pick. 18; 33 Am. Dec. 700; Moody v. Blake, 117 Mass. 23; 19 Am. Rep. 394; or affirm the bargain and sue and recover damages for the fraud. Cooley on Torts, 589, and cases. He must restore goods or consideration. Curtiss v. Howell, 39 N. Y. 215; Guckenheimer v. Angewine, 81 N. Y. 394; Bartlett v. Drake, 100 Mass. 176; 97 Am. Dec. 92. As to remedy for fraud and deceit, see fully Kinkead's Code Pleading, sec. 606. Sec. 1772. Fraud defined. Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed. Fraudulent repre- sentations are those proceeding from or characterized by fraud. Their purpose is to deceive. A fraudulent representation in law is one that is either knowingly untrue, or made without belief in the truth, or recklessly made and for the purpose of inducing action upon it.^ 1 Sallies v. Johnson, 85 Conn. 77, 81 Atl. 974, Am. Ann. Cas., 1913 A., 386; Cooley, Torts, p. 474. FRAUD FALSE REPRESENTATIONS, ETC. 1521 Sec. 1773. Proof of fraud. You are instructed that fraud is never presumed, but is to be proved like other facts, and the degree of evidence is like that prevailing in ordinary civil actions, and need not be proved beyond a reasonable doubt/ but only by a preponderance of the evidence.- It may be established by direct and positive evidence, and may also be proved by circumstantial evidence as well as positive proof ;^ circumstances may be proven by competent evidence from which the inference of fraud which is alleged will naturally arise, and the jury will be justified in considering the fraud as proven by such inferences. The act or commission of fraud is so much different from the ordinary run of facts, that it is more difficult of proof; it is about as difficult sometimes to prove fraud as it would be to prove a criminal act, because the guilty party so frequently covers up and conceals his acts. If the circumstances which are proved by a preponderance or greater weight of evidence are such as to convince the jury that the fraud charged has been committed, they may so find.* 1 Eames r. Morgan, 37 Til. 260-2; Rtrader v. MuUane. 17 0. S. 624. 2 /a. •"• Strauss v. Kranert, .56 111. 254. < Jones V. Greaves, 26 0. S. 2; Lake v. Doiul, 10 O. 415; Wilson v. Del- arask, 3 O. 290; Cooley on Torts, 475 (2 ed. p. 556). "Fraud is properly made out by marshaling the circumstances surrounding the transaction, and deducting therefrom tiie fraudulent purpose, when it manifestly appears, as by presenting the more positive and direct testimony of actual purpose to deceive; and indeed circumstantial proof in most cases can alone bring the fraud to light, for fraud is peculiarly a wrong of secrecy and circumvention, and is to ])e traced not in the open proclamation of the wrongdoer's purpose, but by the indications of covered tracks and studious concealments." (Id.) It need not be shown "conclusively." Sparks v. Dawson. 47 Tex. 138. "The proof need not be positive. l>ut must from the nature of things be circumstantial." Whittaker's Code of Ev. 417, 502. The Court in Pritchard v. Hopkins, ,'52 Iowa, 120, charged that — "The defendant must estal)lish tlie existence of fraud bv a preponderance of the testimony before you can find for the defend- ant." 1522 INSTRUCTIONS TO JURY. Sec. 1774. Contract to be rescinded and tender made. If the plaintiff recovers, it is on the ground that the ecntract is set aside for fraud; but when a party wants to have that dune, and to have his money returned, he must also return what he received from the other party for his money. In order for the plaintiff' to recover in this case, even if he has made out the fraud he claims, it was incumbent on him to return or tender back to the company the certificate of stock he had received. If he did not do this, he can not recover, and to make such a tender sufficient it was necessary to produce the certificate and offer it to the representative of the company, unless the produc- tion and offer of it was waived by such representative. The jury is instructed that if at Mr. G. 's office, H. was present as the representative of the defendant, and Mr. G., as the attor- ney of the plaintiff, told H. the reasons why ]\I. desired the cancellation of his stock, and demanded that the company take back the stock and return M. his money, and if ]\Ir. G. had the certificate of stock there ready and willing to return it, but was deterred from making an actual tender of the certificate, be- cause H. denied the reasons and refused to take back the stock or entertain the proposition, then it was not necessary for the plaintiff to make such actual tender of the certificate by form- ally producing it and tendering it to H.^ 1 From The Cleveland Crucible Steel Co. i\ Murdock ( S. C.) . Cuyahoga County. Sec. 1775. Election to rescind within a reasonable time for the jury. A person complaining of fraud or misrepresentation is re- quired to take steps to rescind the transaction within a reason- able time. Wliether the plaintiff elected to rescind within a reasonable time after discovery of the fraud is a question to be decided by the .iury.^ iMarple v. Railway, 115 Minn. 262, 132 N. W. 333; Am. Ann. Ca3. 1912 D. FRAUD ^FALSE REPRESENTATIONS, ETC. 1523 Sec. 1776. Representation must be material. "In the first x'l«t'e, it is obvious that the fraud must be ma- terial to the contract or transaction which is to be avoided because of it ; for if it relates to another matter, or to this only in a trivial and unimportant way, it affords no ground for the action of the court. It must therefore relate distinctly and directly to this contract, and it must affect its very essence and substance. But, as before, we must say that there is no positive standard by which to determine Avhether the fraud be thus material or not. Nor can we give a better rule for deciding the question than this : if the fraud be such that had it not been practiced the contract would not have been made, or the trans- action completed, then it is material to it ; but if it be shown or made probable that the same thing would have been done by the parties in the same way if the fraud had not been prac- ticed it can not be deemed material. Wliether the fraud be material or otherwise seems to be, on the decided weight of authority, a question for the jury and not a question of law ; but it is obvious that in many cases tlie jury can not answer this question without instructions from the court. "^ 1 Hamilton, J., in The Cleveland Rolling Mill Co. v. Josepli, et al., S. C. o. 2913, Cuyahoga County. Quoted from 2 Parsons on Contracts, p. 769 (5th Ed.). Must be material, Ins. Co. v. Reed, 33 0. S. 283; Connersville v. Wadleigh, 41 Am. Dec. 214. It must be a rep- resentation giving occasion to the contract, Adams v. Schiflfer, 11 Col. 15, 7 Am. St. R. 202; Pulsford v. Richards, 17 Beav. 96. See Cooley on Torts, 580. They need not form tlie sole inducement; it is enough that they have formed a material inducement, Mathews v. Bliss, 22 Pick. 48; SaflFord v. Grout, 120 Mass. 20; Fishback v. Miller, 15 Xev. 428; Cooley, Torts, 587. Sec. 1777. Misrepresentation by concealment. It is not necessary that false representations be by express words, but they may be by mere concealment of material facts under such circumstances as make it the duty of the party to speak. Suppression of the truth where there is a duty to speak is as much a legal wrong as a positive falsehood, and is action- 1524 INSTRUCTIONS TO JURY. able. If, however, there is no duly to disclose, failure to tell the truth is not actionable fraud.^ 1 Jaggard on Torts, 575-77. Words not necessary, Cooley on Torts, 558. 565. Sec. 1778. False representations without knowledge of truth or falsity. "Although you may find from the evidence that defendant did not know that said representations were untrue, yet, if you believe from the evidence that, pending the negotiations for the purchase of said land, and for the purpose of effecting the trade and inducing said agent to make it, defendant made said repre- sentations as of his own knowledge (and they were untrue), but did not know whether they were true or false, and knew or had reason to believe that said agent relied on said representations as true, and said agent did so rely on them, and was thereby deceived and induced to trade for or purchase said land, you will find for the plaintiff."^ 1 Caldwell v. Henry, 76 Mo. 254, 256. "If the party (defendant) made the representations not knowing whether it was true or false, he can not be considered as innocent; since a positive assertion of a fact is, by plain implication, an assertion of knowledge concerning the fact. Hence, if a party (if the de- fendant) have no knowledge, he has asserted for true what he knew to be false." Insurance Co. v. Reed. 33 O. S. 2M; Bigelow on Fraud, 61; Stone r. Covell, 29 Mich. 359, and cases cited; Woodfulf, 27 Tnd. 4: Fisher v. Mellen, 103 Mass. 503; Taylor v. Ashton, 11 M & W. 400; Nugent v. R. R. Co., 2 Disn. 302; 5 Law- son's R. & R., sec. 2352, and cases; Jaggard on Torts, p. 565 (2d ed. p. 582). Sec. 1779. Ingredients of actionable fraud — Intent to deceive — Puffing and commendation — Complainant must be misled, "First. Telling a bare, naked lie is not actionable in and of itself. One of the ingredients of an actionable fraud is, that the falsehood must be asserted with the intention that another shall believe it true and act upon it; and such intention is FRAUD FALSE REPRESENTATIONS, ETC. 1525 fraudulent, whether tlie person asserting the falsehood knew that it was false, or recklessly stated it to be true, not knowing whether it was true of false. ' '^ "Second. The party asserting the falsehood must, at the time, intend to deceive. Fraud usually consists in intention." "Third. The falsehood must be not only in something ma- terial, but it must be in something in regard to which the one party places a known trust and confidence in the other. For if the falsehood be of such a nature that the party deceived by it had no right to place reliance upon it, and it was his own folly, in consequence of his not exercising common sense and ordinary discretion and sagacity, he can not maintain an action for the injury. Thus where a party, upon making a purchase for himself and his partners, falsely stated to the seller, to induce him to make the sale, that his partners would not give more for the property than a certain price, whereas, in truth, they expected and intended to give more, it was held that it was the seller's own discretion to rely upon such false assertions. The common language of puffing and commendation of articles, in relation to such things as are equally open to the observation, examination and skill of both parties, and upon which it is understood that every buyer exercises his own judgment, comes within the rule above laid down ; inasmuch as no one is supposed to be deceived by such false assertions. A confidential relation must exist between the parties." "Fourth. The false state- ment must be made to, or it must have been intended to operate upon, the party complaining." "Fifth. The party complain- ing of the deceit must be misled by the falsehood ; for if he knows the assertion to be false when made it can not be said to influence his conduct." "Sixth. The falsehood must con- stitute an inducement or motive to the act or omission of the party deceived." "Seventh. The party deceived must be mis- led to his injury: a damage must result from the party deceived acting on the faith of the falsehood. * * * Tn general, when the promisee is induced, by false and fraudulent representation, to enter into a contract that manifestly would not have been 1526 INSTRUCTIONS TO JURY. made, except on the faith that such false representations were true, and being false, affected substantially his rights, he may- repudiate such contract."^ 1 33 0. S. 283. 2 Hamilton, J., in Cleveland Rolling Mill Co. i\ Joseph, Cuyahoga Co. Sec. 1780. Misrepresentation to existing or past fact. The general rule of law is that the misrepresentation, to be actionable, must relate to an existing or a past fact.^ 1 Sallies v. Johnson, 85 Conn. 77, 81 Atl. 974; Am. Ann. Cas. 1913 A., 386: Matthews v. Ely, 149 Mo. App. 157. Sec. 1781. Fraudulent promise coupled with present intent not to fulfil. A promise to do an act in the future which is the medium of a deception, and which the promisor has no present intention to perform constitutes actionable fraud.^ The intention to de- ceive is a condition of mind, and, when it exists, is as much of a fact as any other fact. Tliat it is more difficult to prove does not change its inherent character. So a man's intention in doing an act is a fact admissible in any action which it helps to explain, to be proved by his words or inferred from his con- duct.- A misstatement of a man's mind is therefore a mis- statement of fact. The existence of the intent not to perform the promise at the time of its making constitutes the fraud.=* 1 Ayres v. French, 41 Conn. 142; Barnes r. Starr, 64 Conn. 136. 2 Spencer's Appeal, 71 Conn. 638; Dunham v. Cox, 81 Conn. 268. 3 Sallies v. Johnson. 85 Conn. 77. 81 Atl. 974; Am. Ann. Cas. 1913 A., 386; Edgington v. Fitzmaurice. 29 Ch. D. (Eng.) 4.59, 483; Ayres V. French, 41 Conn. 142; Blackburn r. Morrison, 29 Okla. 510, 118 Pac. 402; Am. Ann. Cas. 1913 A., 523. Sec. 1782. Fraudulent promise not to engage in business. A false representation by the seller of a business, that he was about to and would abandon such business in a city where it had been conducted, made to a purchaser with the intent of FRAUD F^VLSE REPRESENTATIONS, ETC. 1527 deceiving him, is not a mere promise to do an act in the future, but has relation to an existing fact, — the immediate withdrawal of the seller from such business, and if coupled with an existing intent not to do so is fraudulent.^ 1 Sallies v. Johnson, 85 Conn. 77, 81 Atl. 974: Am. Ann. Cas. 1913, A. 386; Blackburn r. Morrison, 29 Okla. 510, 118 Pac. 402; Am. Ann. Cas. 1913, A. 523. Sec. 1783. Representation as to value. A representation concerning value is ordinarily to be treated as a mere matter of opinion and as such not fraudulent and actionable. But it may be otherwise. If it is made as an assertion of fact, and with the purpose that it shall be so re- ceived, and it is so received, it may amount to a fraud. A statement of value may be of such character, may be so made and intended and so received, as to constitute a misrepresenta- tion.^ 1 Crompton v. Beedle, 83 Vt. 287, 75 Atl. 331 -.Am. Ann. Cas. 1912, A. 399; Hetland v. Bilstad, 140 Iowa, 411. Sec. 1784. Jury to find what representations were made — Must be relied upon. To entitle the plaintiff to recover in this ease, she must prove that the defendant made representations to her, and to the father ; that she and the father relied upon them ; that whether, under the circumstances existing at the time, she had a right to rely upon those made to her. She must further prove such misrepresentations were false v.'hen made, and known to be so when made. Rhe must further prove she was damaged, and pecuniarily injured thereby. Tf she proves these things, she will be entitled to recover; otherwise she will not. Look into the evidence then and determine — first, what representation^ he did in fact make. What representations to herself, and what to her father, either verbally or in writing, or in Imth. Tf none were made, that would end the case, l^ut, if any w(>re mad<» 1528 BSrSTBUCTIONS TO JURY. you must determine from the evidence what they were. It is not necessary you should find that he made each and all of the representations set forth in the petition, exactly as set forth therein, but it will be sufficient if you find he made substantially these representations. (a) Must have right to rely on them. If you find he made substantially such representations as alleged, you will then inquire whether she relied upon them. And if you find she did, you will then inquire whether, under the circumstances then existing, she had a right to rely on them ;^ and here I will say to you, if you find she had resided in at the time, and he and the father resided here, and correspond- ence was opened between them, and he wrote to her in a brotherly spirit, and intimated a disposition to protect her interests in the premises, then she had a right to rely on them. If you find she had no right to rely on the representations, she then would have no right to recover. But if you find she had a right to rely on them, you will inquire, were the representations so made, false, and if they were not, she can not recover, because she couldn't recover for fraudulent representations. If the representations were true, if they were not false, she can not recover. If they were false, you will then inquire, were she and the father de- ceived by them. If they were not, she can not recover. But if they were, and you so find, you will inquire, was she damaged then, or did she suffer pecuniary injury from these representa- tions. If not, she can not recover. But if she did, and you so determine, she would be entitled to recover damages for such injuries as she has shown by the evidence, she has sustained thereby.^ 1 See Cooley on Torts, .577. - Nicholas, J., in Albright v. Thompson, 27 W. L. B. 247. Judgment af- firmed. There is no liability if buyer relied on his own knowledge. Wilkinson v. Root, W. 686. A representation of what will or will not be per- mitted to be done, is one on which the party to whom it is made has no right to rely, and if he does so rely, it is his folly, and he can not ask the law to relieve him from the consequences. The FRAUD FALSE REPRESENTATIONS, ETC. 1529 truth or falsehood of such a representation can be tested by ordi- nary vigilance and attention. It is an opinion in regard to the law, and is always understood as such. Fish v. Cleland, 33 111. 243, 33 O. S. 293. Representations must liave been acted upon. Cooley on Torts. 587. Sec. 1785. Fraud on old person — What constitutes — Proof. It is claimed that the fraudulent means used were practiced in part upon the plaintiff and in part upon the father, who, by reason of his great age and enfeebled condition of body and mind at the time, was unable to protect himself against the alleged fraud and fraudulent practices of the defendant, as alleged in the petition. On this subject the jury is instructed that fraud, though it is not presumed in such a case as this, but must be proven, yet it may be proven either by direct or circum- stantial evidence; that is, by the proof of certain collateral facts, from which the existence of fraud may or should be inferred. It may be drawn from collateral facts which are proven in the case. One of the curious things about fraud is it can not be defined,' it has so many and varied sliapes that no single definition can cover them all ; and it is well that it is so, because, if it had a legal definition, evil disposed persons would suit that definition and go perpetrating fraud, and would also ascertain the means to escape the consequences. Fraud, although it is not presumed, yet it may be inferred from collateral facts which are proven, and it may be then but an inference from these collateral facts.^ "We might go further and say : To constitute a cause of action for fraudulent representations, there must be bad faith. If the representations when made were believed to be true, and the facts of the case were such as to justify the belief, there is no fraud or deceit, and there can be no recovery .^ A representation is false and will furnish ground for recov- ery whether the party know it to be false or not, if he had no reason to believe it to be true when made, and it was done with the intention of inducing the person to whom made to act upon 1530 INSTRUCTIONS TO JURY. it, and the latter does so and sustains damage, there may be a recovery.^ 1 Nicholas, J., in Albright v. Thompson, 27 W. L. B. 247. Judgment affirmed. See cases ante, No. 198. 2 Taylor v. Leith, 26 O. S. 428. 3 Aetna Ins. Co. v. Reed, 33 0. S. 283. Sec. 1786. Fraudulent purchase of goods — Essential elements of fraud— Must have knowledge of falsity- Stating what is believed to be true — State- ment without knowledge of truth — Must in- tend to deceive — Must be material — Party must be misled and damaged. A falsehood, to amount to a legal fraud, must be accompanied by the following circumstances : First. The party asserting the falsehood must know at the time he makes the assertion that it is a falsehood. Hence, when a person asserts a thing which he believes to be true, but which in fact is false, he is not liable therefor by the reason of the fact that it is false, though another may be injured and deceived thereby, though if he state that to be true about which he has no knowledge and no reason to believe is true, and it is false in fact, then we may well question his belief in its truth, and it may be equivalent to stating that which he knows to be false. Second. The party asserting the falsehood must at the time intend to deceive. Third. The falsehood must be not only in something material, but it must be in something in regard to which one party places a known trust and confidence in the other. Fourth. The false statement must be made to or it must have been intended to operate upon the party complaining. Fifth. The party complaining of the deceit must have been misled by the falsehood. Sixth. The falsehood must constitute an inducement or motive to the act of the party deceived. Seventh. The party deceived must be misled to his injury. A damage must result from the party deceived acting on the faith of the falsehood.^ iWilmot r. Lyon, 49 0. S. 296. "The charge given was a correct state- ment of the law applicable to the case and is approved." Id. FRAUD FALSE REPRESENTATIONS, ETC. 1531 Sec. 1787. Fraudulent purchase of goods, continued — Vendor may abide by or rescind contract. The principal question, then, whicli will claim your attention is, was the purchase of the goods in controversy in this action fraudulent? If it was, then these plaintiffs had the right, on the discovery of the fraud, either to abide by the contract of sale or to treat the contract as wholly void and of no effect — that is. as if it had never been made, so far as the parties thereto and this defendant are concerned — provided they acted promptly upon the discovery of the fraud ; and in the latter case, on election by them so to do, plaintiffs had the right to avoid the contract and pursue and take or replevin their goods. If they have done this and there was fraud in the sale, then they are entitled to your verdict. But if there was no fraud in this sale, til en the company was the sole and complete owner of these goods on the completion of the sale, without the power of revoca- tion on the part of these plaintiffs, and the defendant is entitled to your verdict.^ 1 Wilmot r. Lyon, 49 0. S. 206, whore charge was approved. Sec. 1788. Liability of corporation for fraudulent represen- tations of agents. A corporation necessarily acts through its agents and is as much, and no more, bound by the false and fraudulent repre- sentations of its authorized agents as an individual; and both are bound by the authorized acts of his or its agents. If the directors of a company, acting as a body in the course of man- aging its affairs, or in the course of business which it is their duty to transact, induce a man, by false and fraudulent repre- sentations, to enter into a contract for the benefit of the com- pany, the company is bound. But a company or corporation is not bound by the statement of one of its stockholders, or of one of its directors or officers, unless he also was an agent of the corporation and authorized to make statements in its behalf.^ 1 Wilmot V. Lyon. 49 O. S. 206, approving the charge. 1532 INSTRUCTIONS TO JURY. Sec. 1789. Fraudulent purchase of goods — Principal can not repudiate fraud of agent and accept benefit of contract. But no man can adopt and take the benefit of a contract en- tered into by his agent, and repudiate the fraud on which the contract was based. If the agent at the time of the contract makes any representation touching the subject matter, it is the representation of his principal. The principal can not separate the contract itself from that by which it was induced ; he must adopt the whole contract, including the statements or representations which induced it, o^ must repudiate the contract altogether.^ 1 Wilmot V. Lyon, 49 0. S. 296. Charge approved. Sec. 1790. Fraudulent purchase of goods — Power of agent to make statements as to credit and financial condition of principal in purchase of goods. If the principal sends his agent into the market to buy goods for him on the principal's credit, I think the agent may, at least in the absence of instructions, be fairly held to be authorized to make statements as to the credit and financial condition of his principal. True, he would not in such case be authorized to make any but truthful statements. Yet, being authorized to represent his principal's credit and financial standing, if he does make false and fraudulent statements as to material facts to the seller, and thereby induces a person who right- fully relies upon them to part with his goods by a sale to the principal, that principal can not honestly or legally retain the goods thus obtained by fraud from the seller, if the seller, on discovery of the fraud, promptly repudiates the contract of sale and demands a return of the goods, the seller at the same time returning or offering to return anything which he may have received in exchange therefor."^ 1 Wilmot V. Lyon, 49 O. S. 296. Charge approved. FRAUD FALSE REPRESENTATIONS, ETC. 1533 Sec. 1791. Purchase of goods with intent not to pay for them — Insolvency of purchaser concealed. A contract for the purchase of goods ou credit, made with intent on the part of the purchaser not to pay for tliem is fraud- ulent; and if the purchaser has no reasonable expectation of being able to pay, it is equivalent to an intention not to pay. But where the purchaser intends to pay, and has reasonable expectations of being able to do so, the contract is not fraudu- lent, although the purchaser knows himself to be insolvent, and does not disclose it to the vendor who is ignorant of the fact. If, when the agreement of purchase was made, there was a fraudulent concealment, within the definition already given, on the part of the company of their insolvency, knowing themselves to be insolvent, it would still be fraudulent. When a party thus enters into negotiations for the purchase of goods, and offers to buy or is content to buy upon application, and gives his promise to pay, in my judgment, whether he says anything about it or not, it is understood by both parties that he has a reasonable expectation of being able to pay — w^hether he says so in words or not. Wliether, therefore, a contract of purchase, where the pur- chaser fails to disclose his own insolvency is fraudulent or not depends on the intention of the purchaser; and whether that intention was to pay or not to pay is a question of fact and not a question of law. Being a quCvStion of fact, it is for the jury to solve from the evidence in the case. In the solution of this question, though it be one of fact, it is true, however, that certain presumptions arise which are entitled to consideration and force. Thus fraud must be proved and is not to be presumed — but is to be proved like any other fact, still positive and direct proof or evidence is not always required or possible, but the proof may be gathered from all the circum- stances in the case. While it may be that fraud must ])e proved and will not be presumed, still there is a presumption that every reasonable person anticipates and intends the ordinary and prob- able consequences of known causes and conditions. Hence, if 1534 INSTRUCTIONS TO JURY. a purchaser of goods has knowledge of his own insolvency, and of his inability to pay for them, his intention not to pay may be preferred if the jury believe and find that the evidence suf- ficiently warrants such inference. It may conclude, if it deems proper, that an insolvent purchaser, who is without reasonable expectations of ability to pay, should be presumed to intend not to pay. Indeed, an intention not to pay may be inferred from the mere fact that the purchaser had undisclosed knowledge of his gross insolvency; but, in such case, the inference may be rebutted by other facts and circumstances. It is claimed that in good morals a purchaser knowing himself to be insolvent should not accept credit from one ignorant of the fact. Whether this proposition be true or not, it is enough to say that the law, in its practical morality, does not afford a remedy for the violation of every moral duty. Wliile, there- fore, a purchaser of goods by an insolvent vendee who conceals his insolvency with intent to injure the vendor is fraudulent and voidable, yet a purchase under like circumstances, save only that such intent is absent, is not in law fraudulent. The simple failure to disclose the fact (of insolvency), how- ever, is not equivalent to its concealment. The latter implies a purpose — a design; the former does not. If, then, such knowledge on the part of the purchaser be necessary to make out a fraud, it is because it becomes the predicate of an intent — and intent to injure. Now, gentlemen, what do you say upon all the facts of this case? Was this company insolvent at the time of this pur- chase? Did they know it, and did they conceal? Having no reasonable expectation that they would be able to pay for the goods, did they conceal the fact of that insolvency? If they did, then I say to you, whether they said anything at the time or not, did any other act of concealment or artifice or not, the simple concealment of those facts, that they were insolvent and that they did not" intend to pay, is enough to make an action- able case, and to vitiate and avoid the sale. If they had an honest belief in their solvency, an honest belief that they could FRAUD ^FALSE REPRESENTATIONS, ETC. 1535 turn these goods and pay for them, and expected to do it, then, whether insolvent or not, the sale was not a void one,^ 1 As given by Hamilton, J., in \Yilmot v. Lyon, 49 0. S. 296, and founded on Talcott v. Henderson, 31 O. S. 1(52. The charge has been modi- fied in some respects so a^ not to appear to be too much of a specific direction to the jury, and may be still further varied according to the wish of any one using the form. The cliarge was attacked, but was held to be a correct statement of the law applicable to the case. As to propf of intent see Oswego Starch Factory v. Landrum, 27 Iowa, 573. A man intends the natural results of his acts. Arnold v. Maynard, 2 Story, 353. For cases holding contrary to the charge, but which were considered by tlie Supreme Court both in the Talcott and Wilmot cases and not fol- lowed, see Nichols v. Penner, 18 N. Y. 295-300; Lupin v. Marie, 6 Wend. 77; Conyers i'. Ennis, 2 Mass. 236; Mitchell v. Worden, 20 Barb. 253; Smith v. Smith, Murphy & Co., 21 Penn. 367; Hen- nequin v. Naylor, 24 N. Y. 139; Bidault v. Wales, 20 Mo. 546; Powell V. Bradlee, 9 Gill and John, 220-276. Sec. 1791a. Mercajitile agency — Liability for false reports as to financial standing. The jury is instructed that if the statement given to the agency was substantially true, as claimed by defendants, and it was the sole representation which came to the plaintiffs, and that only through the agency, then, in so far as the plaintiffs' claim depends upon alleged fraudulent oral or written repre- sentations, no recovery can be had by plaintiffs. But if you find the statement was made to the agency, and that it was false in whole or in part, then inquire whether it was given with the intent of the part of the company to have it used as a continu- ing representation among the patrons of the agency for the purpose of obtaining credit for the company by showing its financial standing until it should be otherwise changed or modi- fied by the company. And to determine this, look to the char- acter of the statements themselves ; see whether the facts detailed were liable to change by lapse of time, or were they of a perma- nent nature? What was the custom and usage of the agency in treating them as continuing or otherwise? And what knowl- edge of such custom had the company? What other reports. 1536 INSTRUCTIONS TO JURY. if any, did the company make to the agency covering the facts of the original statements of '1 And if you shall find it was not intended or designed to be a continuing statement, then, whether true or false, it was too remote in point of time to authorize plaintiffs or anyone else, nearly four years after, to rely upon its statements, and can not be the foundation of recovery in this case. But if you find it was intended and designed by the company as a continuing representation, and was in fact so used, to the knowledge of the company, then apply to it the rules of law already given, and the facts as you shall find them to be, and determine whether the representations therein contained were so used as to render this sale fraudulent. Sec. 1792. Transfer of property by one in debt without con- sideration. You are instructed that if a person who is in debt transfers his property to another, without consideration, or good and valuable consideration, without retaining sufficient property to pay his debts, such transfer would be fraudulent as against the creditors of the person so transferring said property. But you are instructed that when a person is in debt and his property is encumbered by mortgages or other liens, he has the right to borrow money and give security on any or all of his property to secure the payment of the money so borrowed, providing such transaction is a bona fide transaction and done in good faith. ^ 1 Nye, J., in Beebe v. Ensign. Lorain Co. Com. Pleas. Sec. 1793. False representation in sale of horse as to being vicious — Purchaser injured while driving — Effect of his own knowledge and care. Action for damages resulting from fraudulent representations in purchase of pair of carriage horses, which are claimed to be vicious and unmanageable, and dangerous to drive. If the jury finds from the evidence that the alleged injuries of the plaintiff were caused by the wrongful acts of the defend- FRAUD FAJLSE REPRESENTATIONS, ETC. 1537 ant set out in the petition, whereby the plaintiff sustained his injuries, he is entitled to recover. If you find that the plain- tiff's ease is not made out by the evidence, your verdict should be for the defendant; or if you find that the injuries to the plaintiff complained of would not have occurred but for the negligence or mismanagement of the plaintiff at the time the injuries occurred, or if you find from the evidence that he had knowledge of the vicious and ungovernable character of the horses, and, notwithstanding that knowledge, negligently and unreasonably exposed himself to the hazards by which he was injured, by driving them when he ought to have known that it was dangerous and imprudent to do so, then he would be treated in law as having taken upon himself risks arising therefrom, and can not recover for the alleged injuries to his person, vehicle, or harness. For the law requires of the complaining party that he should act with reasonable care and prudence under the circumstances in regard to hazards known to him, or that rea- sonably ought to be known to him, and if he acts otherwise voluntarily, he can not charge the consequences of his folly to another. The rule of law is that w'hen one voluntarily encount- ers a known hazard, he takes upon himself the risks resulting therefrom. So, we say to you, if but for his folly, the injuries complained of would not have happened, he can not recover. It is a rule of law as well as a sound conclusion of common sense and justice, that a person can not hold another for the conse- quences of his own folly. Perhaps the rule would be better stated as follows : The plaintiff can not recover any compensation for any damages which he might reasonably have avoided by tlie use of ordinary care and prudence under the circumstances. So, if he volun- tarily exposed himself to hazards he ought not to have encoun- tered under the circumstances, which were known to him, and lie thereby received injuries, he can not recover therefor. So, if his injuries were the result of mere accident, he can not recover therefor. Rut in the absence of knowledge to the con- trary, if the plaintiff acted in good faith, he would be entitled 1538 INSTRUCTIONS TO JURY. to believe that the defendant made truthful representations to him respecting the horses so sold to him, and in using them in a reasonable and prudent manner he would not be exposed to the hazards of using vicious and ungovernable horses."^ 1 Voris, J., in Sampsell v. Thurman, Lorain Co. Com. Pleas. Sec. 1794. Same, continued — Vendor's knowledge of defects — Duty to give notice. It is a general rule that whenever a vendor has, or reasonably ought to have had notice of the defects in the horses calculated to do serious harm, of which the vendee has no notice, and neg- lects to notify the vendee, he becomes liable to him for damages produced by such neglect. The fact that the plaintiff gave no notice to the defendant of the first runaway, if you so find the fact to be, or of any other fact, on the same coming to his knowledge, if any, respecting the alleged vicious and ungovernable character of the horses, may be considered by you in determining whether he in good faith relied upon the representations of the defendant (after the first runaway) or took upon himself voluntarily the risks of continuing to drive them afterwards. But the court says to you that the failure to give such notice of itself does not deprive the plaintiff of the right to recover. "If you should find from the preponderance of the evidence that the defendants made the representations set out in the petition to induce the plaintiff to purchase the horses, that, by reason thereof and relying upon them, the plaintiff, not knowing anything to the contrary, purchased the horses, and you further find that the horses were unsound and Aacious. restive, ungovernable, or worthless in harness when purchased, and that the plaintiff sustained damages thereby, then you should find for the plaintiff, though you should find that the defendant did not know the vicious character of the horses and did not intend to deceive and defraud the plaintiff.*'* 1 "Vbris, J., in Sampsell i\ Thurman, Lorain Co. Com. Pleas. FRAUD F.U.SE REPRESENTATIONS, ETC. 1539 Sec. 1795. Same, continued — -.-easure of damages. The plaintiff can not recover for defects in the horses other than those alleged in the petition. But it will be sufficient if you find that some of them existed which constituted a breach of the contract and caused the injuries complained of. In which case, and should you further find that the defendants did not know the vicious character of the horses, and did not intend to deceive the plaintiff, but acted in good faith in making the representations, then the measure of damages would be the difference between the actual value of the horses when sold and what the value would have been had they been as represented to be by the defendant, to which difference you may add interest from the day of the sale to the first day of this term, the sum of which difference and interest wall constitute the amount of your verdict. But if you should find that the defendants made said repre- sentations not in good faith, but with intent to deceive and defraud the plaintiff, you may add to said sum so as aforesaid found such further sum as, in your judgment, guided by the evidence and these instructions, as will compensate the plaintiff for the injuries caused by the wrongful acts of the defendants as herein defined and limited. This may include compensation for impaired health, mental anguish, pliysical suffering, expenses incurred for surgical attendance and nursing, bodily injury, loss of time, considering either constant or probable duration, its effect upon his health and physical powers, his incapacity for labor, the pursuit of his profession, or other business, as you find the facts to be, upon the evidence. As a guide, you are instructed tliat the legal damages that follow the w'rongs complained of are only such as according to common experience and the usual course of events might be reasonably anticipated (23 Ohio St., G32). If in such injury to his property that you may find from the evidence w^as caused or sustained by reason of want of exercise of roasonablc care or prudence on the part of the plaintiff, and whii'li he would have 1540 INSTRUCTIONS TO JTJR\ . avoided had he conducted himself with reasonable care and prudence, he can not recover.^ J Voris, J., in Sampsell v. Thunnan, Lorain Co. Com. Pleas. Sec. 1796. Representations assumed to be within one's knowl- edge, but truth not known — Recklessly made. Whether in this case the defendants made the representations alleged, and whether they were false, and, if they did make them, whether they were made for the fraudulent purpose alleged, are questions exclusively for your determination from the evidence submitted to you; and in determining these, you are admonished that fraud is not to be presumed by you, except as established by the evidence. Material representations made by a vendor of matters assumed by him to be within his personal knowledge are false and fraud- ulent in a legal sense if made with the intent to deceive the pur chaser, if they are untrue and are relied upon by the vendee in making the purchase, and he is damaged thereby, although the seller did not know them to be untrue; or if he recklessly makes a false representation of truth of a matter of which he knows nothing, for the fraudulent purpose of inducing the purchaser to enter into a contract, and the purchaser enters into it relying upon the same, the vendor is as much liable as if he knew the statement to be false at the time he made it'.^ 1 Voris, J., in Samiisell v. Thurman, Lorain Co. Com. Pleas. Sec. 1797. Fraud in sale of land — Preventing examination of land. "If the jury believe from the evidence in the cause that plain- tiff, at or before the sale of the land in question to the defendant, knowing said land to be subject to overflow, used any artifice to mislead the mind of the defendant and throw him off his guard, and to prevent him from making as careful examination of the land in question as a man of ordinary prudence would otherwise have made; and that defendant was thereby misled and thrown off his guard, and prevented from examining said FRAUD FALSE REPRESENTATIONS, ETC. 1541 land, and in consequence thereof, was and remained ignorant of the fact that said land was subject to overflow up to the time when he bought said land, then, in that case, the jury should find for the defendant and assess his damages according to the measure heretofore stated by the court. "^ 1 McFarland r. Carver, 34 Mo. 195, 196. Sec. 1798. Fraudulent representations as to location of city lot. "If you believe from the evidence that, at the time plaintiff purchased said lot, the defendant knew that it was intended as a residence lot ; and if you further believe that he then and there told said defendant where and on what part of said lot he wished to build his house, and what the style of such house should be, and in what direction it should front; and if you believe that said defendant then and there, as an inducement to plaintiff to purchase said lot for a residence, represented to him that there was a street on the east and on the north side of him ; and if you believe that by said representations plaintiff was induced to purchase said lot for the sum of .$ for the purpose aforesaid, and that such purposes were known to the defendant; if you believe that plaintiff then and there made said purchase, and proceeded to build and did build a residence in the northeast corner of said lot, fronting east and north, and that such design was communicated to the defendant at and before said sale; and you further believe that said representa- tions of defendant, made about a street on the north were false, and kno-wTi to the defendant at the time they were made to be false ; and if you believe that plaintiff has been damaged thereby, then you will allow him for the same."^ 1 White V. Smith, 54 la. 233, 236. 237. Sec. 1799. Whether son fraudulently (persuades parent to make beneficial dispositions of property to him. This defendant had a right to importune and persuade the father to make such disposition as would be inost beneficial to 1542 INSTRUCTIONS TO JURY. him, but in such importunity and persuasion, he must be careful not to make use of any unfair means, must make no false repre- sentations of the facts to the father, nor perpetrate any other kind of fraud to induce him to make such disposition in his favor. If the father did dispose of his property upon merf incessant importunity and persuasion, unmixed with fraud, in a manner that might benefit the defendant, as the result of sueli incessant persuasion, the transaction wouldn't be fraudulent on that account, couldn't be impeached for fraud. If in the use of such importunity and persuasion, he resorts to unfair means, or false representations of the facts, or other fraudulent means, he can not be permitted to enjoy the fruits of his wrong-doing or the advantage obtained by such means. In your search for the truth in the case you must weigh all the evidence before you.^ 1 Nicholas, J., in Albriglit v. Thompson, 27 W. L. B. 247. Judgment affirmed. Sec. 1800. Representations as to value of stock — Such state- ment when actionable — Mere opinions. It must be shown by a preponderance of evidence that there was some actual assertion made by the defendants that the stock of goods was of a certain value, and that the plaintiff relied upon the same, and that the statements were untrue, and that plaintiff Avas thereby misled to his injury. The s^:atement or assertion that is relied upon must be posi- tive; not a mere assertion or opinion, but must be intended to have the effect of influencing the mind of the other party^ (a) Mere opinions. It must not be a mere expression of opinion on the matter, or guesswork, and not intended to influence the mind of the other party, but it must be a positive statement that does have influence on the mind of the party to whom it is made.^ There is no particular form of words necessary; no partic- ular expression is necessary to make such a statement as is referred to, but any distinct assertion of the value of this stock, or any direct assertion to lead the plaintiff to believe it was of such value will be sufficient ; and the statement must have been FRAUD — FALSE REPRESENTATIONS, ETC. 1543 made so as to have induced the plaintiff to purchase ; and, if that is so, and the plaintiff' was thereby induced to purchase, it is immaterial at what stage of the negotiations it was made, if previous to the conclusion of the contract between the parties. If representations of value were not made until after the sale was consummated, of course it would not have been an induce- ment, and can not be considered in the case. It must have been made before the sale was consummated fully. It is necessary also for the plaintiff to show that he relied on this statement of the defendant in the case; for, if he made the purchase not relying on these representations, but relying upon his own judg- ment, or tliat of outside parties, then he can not be said to have been misled by the defendants' misrepresentations. * * * If yon find from the evidence that the defendants simply priced their stock at $ , withoiit misrepresentation of the same, and its value, you will be justified in finding for the defendants, because a man has the right to sell his property for all he can get for it, providing he makes no false representa- tions. He has the right to remain silent in such cases. But there are cases in which silence is as much falsehood as speech, but I need not undertake to define them to you. But where a party has tlie riglit to remain silent and does not mislead the other party, and allows the one with whom he is trading to act on his own judgment, he is not bound to lay before the other party all the facts about the matter, and advise him about all the minute details, but he is bound not to deceive him.- 1 Representation of more opinion not actionable, 5 Lawson's R. burden is upon the defendant in this case to prove the falsity of the answer in ques- tion ; that it was material ; that defendant relied upon it and was induced to issue the policy because thereof.^ 4. Slame — Degree of evidence required in siteh ease — Clear evi- dence. In ordinary civil cases the degree of evidence of a party 1 Wood V. .Tohn TTanpock Lifo Insurance Co., Franklin Cora. Pleas, Kin- kead, J. 1546 INSTRUCTIONS TO JURY. upon whom the burden of proof rests is to establish the facts averred and claimed by him by a preponderance of evidence. This means the greater Aveight of evidence, considering the weight and credit. Absolute certainty net being always possible or required, the law under such degree of evidence permits the jury to consider probabilities, to conclude whether from the evidence the fact or facts is or are probably true. The statute applicable to this case requires the defendant company to clearly prove that such answer was wilfully false and fraudulently made; that it v/as material and relied upon. The requirement that the fraud shall be clearly proved is imposed by law because the good faith of the insured in making the contract is chal- lenged. There is a distinction between a probability and clear proof. Probability is that which appears probable; anything that has the appearance of reality or truth. Clearly proving a fact is to prove it in a clear manner. For a fact to be clearly proved is that it may be proved so that the jury is able to see or perceive clearly or distinctly the fact alleged and in dispute. So the burden placed by the statute upon the defendant in this case is to clearly prove the fraud alleged and claimed by it.^ 5. Fraud — 7^*^ definition and elements. One of the curious things about fraud is that courts hardly ever undertake to define it. It is rather difficult of definition because it has so many varied forms and shapes that no single definition can hardly be framed to cover all kinds of fraud. The elements of fraud that may enter into all fraudulent transactions are bad faith, intentionally mis-stating a fact, intentionally conceal- ing a fact which, if the truth would be communicated instead of the false statement, the contracting party,— that is the other contract party. — would not have entered into the con- tract. Telling a hare, naked lie or concealing a fact known to a party will furnish ground for relief only when it is done witb the intention that another shall believe the affirmative falsehood, or that he will helieve in the existence of the fact which the thing or fact fraudulently concealed would have disproved. iWood V. John Hancock Life Insurance Co., Franklin Com. Pleas, Kin- kead, J. FRAUD ^FALSE REPRESENTATIONS, ETC. 1547 If 30U find that the deceased insured, II. W., made a false statement Avheu he stated in the application for insurance that the last time he consulted a physician was in November, 1909, and that it was for overwork and for nervousness; that he was fully recovered and that he was treated by a physician, that he did not consult a physician at other times than as claimed in the testimony, you will then consider the good faith, honesty and integrity of that statement and of H. W. in making it ; whether it was clearly made in bad faith with the intention to deceive tlie defendant and obtain the issuance of the policy; whether it was false, material and induced the company to issue the policy. The jury is instructed that it may consider and determine whether the answer and statement of the deceased insured was such a wilfully false and fraudulent statement as to be material in the issuance of the policy without regard to the existence or non-existence of the disease from which he suffered. Under the law a material representation by an answer to an interrogatory in an application for insurance as to a fact may make the same void, — that is, the policy void. The fact in controversy here is tlie last treatment by a physician. Another fact is what the disease was for which he was treated. These are the two facts involved which the jury are called upon to determine; whether citlier one or both of them was truthful or false. You are in- structed tliat if either one of these facts alone in your judgment constitutes a material and false representation, which, if relied upon, operated as an inducing cause in the issuance of the I)olicy by the defendant company to PI. W., if either one or both of the statements were false, it constitutes a full defense to this action. If they are truthful, of course they do not. If you find the answer to have been Avilfully false, that it was fraudu- lent, and that if the company had known that the insured was treated at the times claimed in evidence by the defendant, and 1liaf it would have been of siicli materiality as that it is dear to you that the company relied u[)(>n it and was ther('l)y iTiduced to issue the policy, and whether l>ut for the false statements and fraud it wouhl not have issued Hie policy, then in tluit event, ol' course, A'our verdict would l)e for the defendant. 1548 INSTRUCTIONS TO JURY. Insurance is a risk. It is taking a chance on the life of another, in a sense, for a consideration, and the company has a legal right to full and honest disclosures on the part of the insured of all material facts which may or may not induce it to issue the policy. It must also be made lo appear that the agent of the company had no knowledge of the falsity or fraud of such answer. By such agent is meant the one receiving and taking the policy and not the examining physician.^ 1 Wood V. John Hancock Life Insurance Co., Franklin Com. Pleas, Kin- kead, J. Sec. 1802. Measure of damages when plaintiff exchanged land for merchandise — Market value of land not considered. If you find for the plaintiff you will allow him as damages by the application of the following rule. If you find that defend- ant made misrepresentations concerning the value of the stock of merchandise which lie exchanged for the land, plaintiff will be entitled to recover the difference between the market value of the merchandise as it actually was and as represented, unaffected by the market value of the land. It makes no differ- ence whether plaintiff agreed to pay in money or property. In either event he is entitled to the price he fixed and which the other party undertook to pay ; he can not be compelled to accept a lower price because of another's fraud, and thereby allow a wrongdoer a bargain he could not have obtained by fair dealing. When compelled to make good his representation, he should be required to pay the injured party that which he represented to him he would receive, and for which the innocent party parted with, which as stated is the difference between the market value of the merchandise as it actually was and as represented, unaffected by the market value of the land.^ 1 Stoke V. Converse, 153 Iowa, 274, 133 N. W. 709; Am. Ann. Cas. 1913. E. 270; Ryan v. Miller, 236 Mo. 496, 139 S. W. 128; Am. Ann. Cas. 1912, b. 540. FRAUD FALSE REPRESENTATIONS, ETC. 1549 Sec. 1803. False representation concerning merits, working and adaptability of patented machine — Claimed by cross-petition. 1. Repi'esentation and warranty distinguished. 2. Essentials of a representation. 3. Duty of purchaser to he reasonably diligent — When facts peculiarly within knowledge of other party. 4. Existing facts distinguished from- opinion and dealers talk. 5. Matters within knowledge of vendor — Purchaser without knouiedge, and inspection impossible ivithout great expense. 6. When operation and utility of an invention matter of opinion. 7. General commendation open to difference of opinion. 8. Direction to jury to apply the law and find the facts. 9. Circumstances may establish falsity. 10. Must be material and relied upon. 1. Representation and warranty distinguished. The pleading of defendants refers to the language of the representation as a warranty. As matter of language there may be no difference whatever between a representation and a warranty, although the external distinction between them are some times marked by tlic fact that a warranty is a part of the contract, whereas a representation is in no case more than an inducement to a contract ; it is never part of one. 2. Essentials of a representation. The representation must be of a fact, and not of an opinion, it must be false, and a material inducing cause operating upon the mind of him to whom it is made to his injury or detriment, and it must be made by the person in bad faith with knowledge of its falsity and with a purpose to mislead. The one claimiiiur its falsity must show that it was actually false and fraudulent, that is, that he did not have an honest belief in its truth, and with an intention of inducing the one to whom it was made to act upon it. 1550 INSTRUCTIONS TO JURY. The question is whether the statement b}' plaintiff to defend- ants with reference to the merits, working and adaptability of the machine comes Avithin the class of representations which are considered in law as fraudulent if they are not true in all respects as made. 3. Duty of purchaser to he diligent — When facts peculiarly within knowledge of other party. The general doctrine of the law is that under ordinary circumstances a purchaser or lessee is required to use reasonable diligence to avoid deception. And in general, and in the absence of special conditions, circumstances and relations between the parties, the subject-matter of the representation is a fact or facts, may not be entirely, solely and peculiarly within the knowledge of the vendor, or lessor, and may be one as to which the purchaser or lessee may have equal and available means and opportunity, in Avhole or in part, for information; and in such case if no artifice or deception is used to prevent inquiry or investigation, the rule is that a pur- cliaser or lessee must make use of his own means of knowledge, and failing so to do, he can not recover on the ground that he was misled. Reasonable diligence is all that is required, and this must depend upon the particular conditions and circum- stances. [20 Cyc. 49.] 4. Existing facts distinguished from opinion and dealers talk. And a false representation of an existing fact for which the law affords redress is to be distinguished from what, in particular cases, may be considered as nothing more than a mere expression of an opinion which furnishes no ground of liability except in exceptional cases. Coming within the classification of the expres- sion of opinion are what are considered as "dealers talk," such as general assertions and expressions in commendation of any- thing sold or leased. In some instances, statements which are merely descriptive of the operation and utility of anything the subject-matter of sale or lease are to be considered as mere expressions of opinion, or "dealers talk," upon which the pur- chaser or lessee can not safely rely. 5. Matters trithin the knowledge of vendor — Purchaser ivithout knowledge, and inspection impossible iniJioiit great expense. FRAUD F.VLSE REPRESENTATIONS, ETC. 1551 But if the matters covered by the statements of vendor cr lessor are peculiarly within his knowledge, and the purchaser or lessee is ignorant thereof, or is ignorant of the business, or knows nothing of the nature and quality or operation of the subject- matter of the sale or lease, and the same is situated at a distant place so that an inspection can not be made without expense and inconvenience, the purchaser or lessee may then safely rely on the vendor's or lessee's positive statements regarding the property. [20 Cyc. 58 ; 13 :\linn. 223 ; 29 N. J. Eq. 257.] 6. When operation and utility of an invention matter of opinion. The rule of law is, that in some cases and under certain circumstances, statements as to the operation and utility of an invention may be mere matter of opinion, upon which a pur- chaser can not safely rely.^ 7. General commendation open to difference of opinion. And again it is settled law that there is no legal responsibility for general commendations which are manifestly open to a difference of opinion, and which do not necessarily imply untrue assertions concerning matters of direct observation, and as to which persons in general do not place relianee.- 8. Direction to jury to apply the law and find the facts. The foregoing statements of general doctrine have been given the jury to be applied in weighing the admitted language used in the statement concerning the quality and capacity of the machines, in the light of the conflicting testimony of the persons having knowledge of the construction and operation of the different types of pea viner machines, who have given their testimony in this case, both as to their practical mechanism and their operation, as well as their opinions touching the quality and capacity of the machines in question; and also to enable you to determine, in the light of tlie evidence, whether the statements used by the plaintiff — considered in the light of the conflicting evidence — were tlic mere statement of an opinion, as 1 Neidffor v. Cliastain, 71 Tnr llic phiintiff. 1568 INSTRUCTIONS TO JURY. If you find that there was any fact or circumstance concern- ing the financial condition of the corporation and the declaration of the dividend, or either of them, which would be sufficient to put a reasonably prudent and careful man acting as a director of a corporation, as an ordinarily prudent person would act under the circumstances, or such as would cause him to entertain a doubt or suspicion whether the corporation could lawfully declare the dividend, this should be taken into consideration with other facts and circumstances in determining the question, etc. 7. Same — Directors voting or assenting to declaration of dividend liable, when — The statute making dividend unlaivful when. Directors of a private corporation, which is in fact insolvent and which has no surplus, who vote for or assent to the declaration of a dividend on the capital stock thereof, for the fraudulent purpose of deceiving persons having no knowl- edge or information of the financial condition of such company, and to induce such persons to purchase stock in such corpora- tion ; or who by false representations of the financial condition of such corporation, or by false statements of its financial con- dition, and of the fact that it is paying dividends on its capital stock, thereby induce persons to subscribe for and purchase its stock on the faith of such fraudulent act or false representations are liable to such persons if they rely and act thereon for any loss or damage thereby sustained by them. In order to hold directors of such corporation liable for such fraudulent act and false representations, it must be proven that they voted for or assented to the declaration of such dividend, and made, or were personally implicated in making or holding out such false representations, and that such directors declared and published the fact of such dividend, knowing that such corporation was then insolvent, or, knowing that such representations were false or that they did so under such circumstances as Avill warrant the jury in finding that such directors by the exercise of ordinary care and prudence would have known that such corporation was insolvent, or that such representations were false. The FRAUD FALSE REPRESENTATIONS, ETC. 1569 declaration of the dividend, and the reprevsentations must have been made with the intent to deceive, and that plaintiff must have been deceived by them, and must have acted and relied upon them. The statutes of this state (sec. ) provide that it shall be unlawful for the directors of any corporation organized under the laws of this state to make dividends except from the surplus profits arising from the business of the corporation. In the calculation of the profits previous to a dividend, interest then unpaid, although due, on debts owing to the company, shall not be included. In order to ascertain the surplus profits from which alone a dividend can be made, there shall be charged in the account of profit and loss, and deducted from the actual l)rofits all expenses paid and incurred both ordinary and extra- ordinary, attending the management of the affairs and the transaction of the business of the corporation. There shall also bo deducted from the actual profits, interest paid or then due and accrued on debts owing by the corporation. There shall also be deducted from the actual profits, all losses sustained by the corporation, and in the computation of such lovsses, all debts owing by the corporation shall be included which shall remain due without prosecution, and no interest liaving been paid tlicreon for more than one year, or which judgment shall have been recovered and shall have remained for more than two years unsatisfied, and on which no interest shall have been paid during tliat period ; and no such corporation shall advertise a larger amount of capital stock than has actually been subscribed and paid in ; and shall not advertise a greater dividend than what has been actually earned or credited or paid to its stoek- liolders or members. Hence, I charge you that a dividend is that portion of the profits and surplus funds of the corporation whicli has been actually set apart by a valid resolution of tbe board of directors for distribution among tlie stockholders according to their ri'spectivi; interests, in such sense as to become segregated from the property of the corporation, and to become the property of the shareholders dist fil)utively. 1570 INSTRUCTIONS TO JURY. It is the excess of its cash and other property on hand over and above its liabilities. The assets of a corporation consist of the stock in trade, cash, and all available property belonging to the company. 8. Same — Liability of directors for acts of manager of the corporation. If the jury find that P., manager and in control of the business, was the only one of the defendants who knew that the dividend could not be rightly and legally declared and paid, and that he misrepresented the books and condition of the company to the other directors, and the other defendants relied upon such misrepresentations in good faith, and could not by the exercise of ordinary care and prudence have discovered the falsity of such representations, and had reasonable grounds for believing that the dividend could be rightly and legally declared, then they could not be held responsible for any fraudulent misrepresentations made by P. to plaintiff, and your verdict in such event should be returned only against P. But if you find that P. did reveal and make known to the other directors and defendants herein the true condition of the books and of the details of the entries therein so far as was necessary to enable them to know whether the dividend could or could not be rightly and legally declared and paid; and if you are of the opinion that the defendants, by the exercise of ordinary care, considering their knowledge and intelligence, could have known Avhether such dividend could be rightly and legally declared and paid; and if they failed to observe ordinary care and prudence under the circumstances, and hence were without reasonable grounds for believing that such dividend could be paid, but that they nevertheless, dfd vote to declare and pay the dividend, your verdict in such case should be against all the defendants to whom P. revealed the condition of the company, and who voted to declare the unlawful dividend, if you find they did so, provided there was a common design and purpose on the part of all the defendants to increase the assets of the company by the sale of the stock after the payment of the dividend. FRAUD FALSE REPRESENTATION, ETC. 1571 8. Same — Jiisre presentation to he fraudulent must he material and relied upon. A misrepresentation to be fraudulent must be as to a material matter of fact ; it must be fraudulent and false and must be relied upon by the person to whom it is made, and it must constitute an inducement to enter into a transaction, must work injury or result directly in damages to the person relying thereon, and the person to whon^ such misrepresentation is made must have a right to rely thereon. If all these circumstances concur, then there is fraud, and the party thus injured is entitled to relief. If the defendants fraudulently declared a false dividend, and fraudulently made false and fraudulent misrepresentations or statements to plaintiffs as claimed, but if the plaintiff did not rely on them in accepting the stock, but instead sought and obtained information concerning the financial condition of the company and the statements and facts with reference thereto from other sources, and then on his own judgment concluded to enter into the contract for the purchase of the stock, and if he took his chance as to the real condition of the company and the real value of the stock, then he may not recover. But if plaintiff did rely upon such representations, and he had a right to rely upon them ; if he acted upon the faith of them instead of upon his own judgment or information obtained from other sources, and he was damaged thereby, he may recover notwithstanding he may have made inquiries and obtained information from other sources. 9. Same — Measure of damages. The measure of damages is the difference between the value of the stock as it was represented to be, and its actual intrinsic value at the time of the purchase of it by plaintiff, which sum you should allow with interest, etc. If the stock was worthless when plaintiff bought it, the price it was then represented to be worth, with interest, is the measure of damages. If on tbo other hand, the stock thm had some intrinsic value, that value should be deducted from the value it was represented to have.^ 1 Converse v. Yaeger, Franklin Co. Cora. Pleas, Kinkead, J. AfTirmcd by Circuit and Supreme Courts. CHAPTER GUI. GAMBLING CONTRACTS. SEC. SEC. 1806. Contracts for sale of grain to 1808. Action for money lost by a be delivered at future person dependent for sup- day, port upon the person los- 1807. Fact that one party acts as ing money. commission merchant does not change relation. Sec. 1806. Contracts for sale of grain to be delivered at future day. Where transactions on their face are purchases and sales of commodities by one party of and to another, the burden of proof rests upon him who asserts their illegality, on the ground that they are gambling transactions, to prove by a preponderance of the testimony that they are in fact gambling transactions; and to establish this, the facts and circumstances must be so convincing and strong that no other reasonable conclusion can be drawn from them. Contracts are not presumed to be illegal; on the other hand, they are presumed to be legal until the contrary clearly appears. A contract for the sale of grain or other commodity, to be delivered at a future day, is not invalidated by the fact that it was to be delivered at a future day, or by the additional fact that at the time of the making of the contract the vendor had not the goods in his possession, or by the additional fact that at the time he had not entered into any contract to buy or procure the goods, nor by the further fact that at the time he had no reasonable prospect of procuring them for delivery, according to the tenor of the contract. In such case, if either party to the contract has the right to compel a delivery or receipt of the goods, it is a valid contract, although the parties 1572 GAMBLING CONTRACTS. 1573 thereto thereafter settle and agree to close up the transaction by a payment of differences. Nor does the statute of Ohio apply to sales of grain or other goods for future delivery, where the only option is as to the time of delivery, within certain limits. The intent of that act is to prohibit transactions which are purely options to buy or sell, where there is no intention, but the contrary, upon the part of the parties ever to deliver or receive and pay for the goods. It should appear, liowever, in order to uphold a contract for the sale and delivery of grain at" a future day or time for a price stated, that it was the purpose of the parties that there should, in fact, be a delivery and receipt of the grain. If made with a hona fide intention to deliver the grain and to receive and pay for the same, it is valid in law. (a) Intention of the parties governs. It is the intention of the parties at the time the contract is entered into that gives character to the same. In other words, it is the key to the real transaction by which it should be tested. What w^as the intention of the parties to this contract at the time it was made in respect to an actual delivery and receipt of the goods contracted for? An understanding between the vendor and vendee, at the time the contract is made, that the goods shall not be delivered or received, but merely to pay and receive the difference between the price agreed upon and the market price at the time named for its delivery, brings the transaction within the statute, and it is void. Nor does it matter what form the parties gave to their contracts. They may be painstaking and legally exact in this respect. On its face the contract may be, in all particulars, legitimate and regular. As the Supreme Court of the United States declared in the case of Irvine v. Willard, "Gambling is none the less such because it is carried on in the form or guise of legitimate trade." And, in the language of another high authority, I charge you that however formal and correct a contract may be on its face, yet if this formality is resorted to as a mere disguise, and the real understanding and agreement between the parties thereto at the time it was entered into was that it should not be performed according to its tenor, 1574 INSTRUCTIONS TO JURY. and both the parties do not intend an actual delivery of the article bargained for, but merely to settle the differences between the price agreed to be paid for the article and the market price at the time fixed in the contract for its delivery, it is a gambling transaction within the meaning and intent of our statute, and is also against public policy and wholly void. The secret intention of one of the parties to a contract that the grain shall not be delivered and received, but that settle- ment shall be made as already stated, is not sufficient to render the contract invalid ; it must be the mutual understanding and agreement of both the parties thereto. In short, I state it this way : If the intent and purpose of both parties to the contract is purely and nothing else but to wager on the rise or fall of the price of grain, and no delivery or receipt of the same is to be had, and not to deal in it bona fide, the transaction is a gambling affair, and is utterly void.^ 1 Lester v. Buell. 40 0. S. 240, Sec. 1807. Fact that one party acts as commission merchant does not change relation. If you find that, in pursuance of directions from the defend- ants, or from their agent authorized in the premises, the plain- tiff did, in his own name, make ho-na fide sales and purchases for future delivery for defendants, by which the parties to whom the plaintiff made such sales, or from whom he made such purchases, had a right to compel delivery of the grain bought and sold, or enforce a payment of damages for breach of contract, such transaction is not illegal as between plaintiff and defendants, although defendants never intended to deliver or receive the grain sold or bought, and although the plaintiff knew at the time of such intention. If, under the proof, you find the transactions valid as between the defendants and their vendors or vendees, such transactions are valid as between defendants and their broker, commission merchant, or agent. And if you find in this case that plaintiff acted merely as defend- ant's agent, whether he assumes to make the purchase or sale GAMBLING CONTRACTS. 1575 as a commission merchant only, will not alter the relation of the parties, and whatever the transactions were, whether they were valid or not, plaintiff can not recover for his commission, and for the money advanced by him for the defendants under such circumstances that an agreement to repay will be implied. If you find the transactions illegal and void, under the instruc- tions which have been given you, and you further find that the plaintiff acted as agent in these transactions, and knew or had reason to know all about the illegal character of the same, and knowingly assisted the defendants in the advance of the money, and was acting in such agency to bring about the gambling transactions in which he advanced the money, and sought thereby to keep up and aid such transactions, and advised and procured the same to be done by himself or by Mr, C, and so acted in the premises as to be affected by the immoralities of the transaction, he can not recover. If he advised, aided and procured gambling transactions to be entered into l)y the defend- ants in these alleged grain deals, and was acting by himself or agents in carrying them on, and did it on purpose to gamble in grain in this way, and obtained from the defendants their money in illegal and gambling affairs, he is a principal in the commission of all the offenses.^ 1 Lester r. P.nell, 40 O. S. 240, ami oases cited. Sec. 1808. Action flor money lost by a person dependent for support upon the person losing money. You have heard the evidence in this case, and the arguments of counsel. It now becomes the duty of the court to charge you as to the law which will govern you in your deliberations. All questions of fact are for the jury, that is your exclusive province. It is the province of the court to charge you as to tlie law of the case, and you will be governed by the law given you by the court, whether it may agree with the individual opinion of any one or more of you or not. Therefore, in your jury room no one will advance any proposition of law at variance with tluit given you by the court. 1576 INSTRUCTIONS TO JURY. The plaintiff sues the defendant here asking for a judgment for $ lost by her son, she claiming that it was lost by him in gambling, together with exemplary damages in the sum of $ , making a total of $ , for which she asks judgment at your hands. The statute involved in this case, sec. 5967, provides, in sub- stance, as follows: That a person who loses any money at gambling may recover the same, or any person who is dependent for support upon such person may sue for and recover from the person receiving the money any such money that is so lost. The petition in this case alleges that the plaintiff was entitled to the earnings of her son. The court, however, instructs the jury that as the son was at the time complained of not a minor, but of full age, that she is not entitled to recover on that ground, that she can only recover, if at all, upon the ground that she was entitled to the support of her son under the statute. The court can hardly interpret the meaning of this statute which reads that "A person dependent for support upon the person so losing the money," more definitely and certain than the language itself imports. Counsel in argument have interpreted the statute as embracing one who is entitled to support in any degree. The language is plain, and the court will not undertake to determine its meaning any further than its language indicates to the ordinary intelligent mind. It is a simple question of fact for the jury to determine from the evidence whether plaintiff was in fact dependent for her support upon her son ; not necessarily whether there was a contract, but whether plaintiff had other means of support, from her own exertions or from her own means ; whether the son did or did not at and during and prior to the times mentioned in the petition actually support the plaintiff, or whether he did not. This is the question of fact which lies at the basis of this case, and it is your sole province to decide it. To warrant a recovery on behalf of the plaintiff she must establish by a preponderance of the evidence that she was at the time mentioned in her petition, and at and prior thereto, GAMBLING CONTRACTS. 1577 dependent upon her son, Avliom it is claimed lost money, for lier support. If you find that plaintiff was not at the time stated in the petition dependent upon her son for support, that would be an end to the case and you need not further consider it. The jury must find that plaintiff was dependent upon her son for support, and that he lost the money by gambling, which finding must be supported by a preponderance of the evidence, that is by the greater weight thereof. If the evidence is evenly balanced between the parties, there is not then a preponder- ance thereof, and in such case your verdict should be for the defendant. The jury is the sole judge of the credibility of the witnesses. The court has nothing to do with the question of credibility of witnesses except to point out matters which the jury may consider. You may adopt such tests as in your judgment seem best applicable to the facts and circumstances developed in the evidence. Before the plaintiff may recover in this case she must prove to you that her son did lose some money at gambling. If he did not lose money at the time and place alleged by her, she may not recover. The law places the burden of proving this upon the plaintiff, which she must do by the greater weight of the evidence as before explained. In other words, you are not permitted to conjecture or guess what his losses, if any, were, but it must be proven to you by the greater weight of the evidence. Verdicts must be rendered upon sworn testimony which proves the material allegation of the petition by the degree of evidence already stated. CHAPTER CIV. GIFT. SEC. SEC. 1809. Gift inter vivos. 1811. Retaining dominion over gift. 1810. What constitutes valid gift. 1812. Gift of mortgage or money represented by mortgage. Sec. 1809. Gift inter vivos. A gift i7iter vivos — between the living — sucli as is claimed here is the act of the owner of property of transferring its ownership — its title and possession to another. It is a contract which takes place by the mutual consent of the giver, who divests himself of the thing given in order to transmit the title to the donee gratuitously, and the donee is the person to whom it is given, who actually accepts and acquires the legal title to the subject of the gift, whatever it may be — in this case being a claim of money paid upon a mortgage upon real estate, the title to which stood in the name of the plaintiff and her husband at the time of the payment. Sec. 1810. What constitutes valid gift. To constitute a valid gift, the purpose of the donor — the giver — to make the gift must be established by the requisite degree of evidence — that is, a preponderance of the evidence the same as in ordinary civil cases, and the gift must be complete by either actual, constructive or symbolic delivery, without power of revocation on the part of the donor or the giver. A clear and unmistakable intention on the part of the donor or giver to make a gift of his property is an essential requisite of the gift. Whether J. B., Sr., intended to make a 1578 GIFTS. 1579 gift as claimed, or whether he did not so intend is to he gathered from all the evidence, and may or may not, as the judgment of the jury suggests, he gathered from his declarations or from his acts, whatever they were, appearing in the evidence, if indicative of the fact of having made a gift or not. The intention to give must be consummated and carried into effect by acts which the law requires to divest the donor and invest the donee with the right of the property — complete and unconditional delivery is essential to the perfection of such a gift ; if the donor or giver retains dominion over the subject of the gift, or if he retains a chance to withdraw, or to change his mind, there can be no legal and perfect donation. Sec. 1811. Retaining dominion over gift Now when you are considering that rule as to retaining domin- ion over the subject of the gift, of course the jury must take into consideration the nature and character of the gift as claimed — in this case being money paid upon the mortgage, the mortgage having been cancelled on the paper itself, and a record of it having been made in the recorder's office. Now as to this matter of retaining dominion over the subject matter, the court will instruct you later on as to the rights of J. B. Sr., in the event that you find from the evidence that he did not intend to make a gift. Tlie delivery required must be such a one as the nature and character of tlie thing claimed to be given shows it to be capable of. These are the essentials of a gift inter vivos, or among the living. Sec. 1812. Gift of mortgage or money represented by mort- gage. The money having been paid by B. to the building and loan company when the title to the property st<>od in the name of plaintiff and her husl)and, and the mortgage having been cancelled on the mortgage itself and upon the records of the recorder's office, the jury will determine from these acts, and 1580 INSTRUCTIONS TO JURY. any declarations which the deceased may have made, and all the evidence, what the fact was, whether or not there was a gift or whether it was not a gift; but I may say that absolute certainty is not possible, nor is it required in the determination of the facts by the jury. The jury are allowed by law to deal in what may be called probabilities. The question is whether it was probably a gift. If the evidence is evenly balanced between the parties, of course the plaintiff must fail upon the question of the gift. If it was the intention of J. B. Sr., at the time of paying the amount of the mortgage, as claimed by plaintiff, the payment and cancellation thereof on the mortgage and on the record, would, in such event, be a sufficient construc- tive delivery of the subject of the alleged gift. Notv the court is not giving any opinion upon that matter at all, because it is left entirely with the jury, and the jury must deduce from all of the circumstances whether or no there Avas an intention to make a gift, the jury being the exclusive judges of the fact. The court merely states that if you should find from the evidence that it was his intention to make the gift at the time, then the court states as matter of law, that there would be a sufficient delivery by the cancellation upon the mortgage and upon the record without anything further being done. If, however, he paid this money on the mortgage without intending to make a gift to the plaintiff as claimed, but because of the admitted fact here that he held a second mortgage on the property, and that he paid the building and loan mortgage to protect his second mortgage, but under a mistake of his legal rights in the matter of preserving the lien of the mortgage for his own protection, he failed to take such steps that would on its face protect him in that m.atter, and if he did not intend in fact to cancel the lien of the mortgage but expected to retain it and preserve it for his own protection, but failed to do so in a legal manner, in such event he would, in laAv, be entitled to be subrogated in equity for the rights of the lien of the mortgage, and in such case there would of course be no gift. GIFTS. 1581 Now if is a question for the jury to determine what his inten- tion was, whether he did intend to pay that to protect his own interest, and whether he did make the mistake ; whether he did not intend to have the mortgage cancelled, and whether he intended to preserve the lien. Those questions are entirely within the p^o^dnce of the jury to determine.^ 1 Breen v. Breen, Franklin Co. Com. Pleas, Kinkead, J. CHAPTER CV. GRAND JURY. SEC. SEC. 1813. A complete charge to grand 1818. Special charge as to bucket- jury. [Other sugges- shops — Gambling in mar- tions.] gins. 1814. Introductory. 1819. Character of evidence to war- 1815. Origin of institution of grand rant indictment. jury. 1820. Legal evidence only to be con- 1816. Grand jury to institute crim- sidered. inal proceedings as well 1821. Looking at guilt or innocence. as to guard against un- 1822. Scope of inquiry. just accusations. 1823. Secrecy must be observed — 1817. Oath, and responsibility im- Another form. posed thereby. Sec. 1813. A concise charge to the grand jury. Gentlemen of the Grand Jury — You have been summoned here to determine whether men should be accused with crime. It is the duty of the court to instruct you respecting your duty. Of course it is needless for me to say that you should observe the instructions. It has long been a cardinal principle of law that no one shall be put on trial for a capital or infamous crime until he has been indicted by a grand jury. In earlier times the grand jury often stood as a barrier against unjust persecution. So should it now be the means, not only of bringing to trial persons accused of crime upon just grounds, but also to protect persons from unfounded accusations whether presented by legal officers or by partisan passion or private enmity. There is no public purpose subserved in indicting men, wfien it appears to you that there can be no conviction according to the proof. It is important that accusations be made against those appearing, upon an honest and impartial examination, to be 1582 GRAND JURY. 1583 probably guilty of the commission of a crime. It is equally essential that unjust or unfounded accusatioruj be not made against anyone. The oath administered to you contains some essential prin- ciples Avhich should control you in your deliberation. The taking of an oath by a grand juror means that he shall observe it. A juror who does not honestly and conscientiously keep his oath can not be a worthy citizen. The jury and judge constitute the court, and the duties resting upon each must be properly performed. Your oath contains an appeal to your conscience that you keep secret what takes place in your presence in the grand jury room. The purpose of this is plain. You may have accusations brought before you, which, after examination you will find unfounded, and return no indictment. The laws of decency demand that you shall not individually slander your brethren. Then how much stronger should be the seal on your tongue in respect to what goes on in the grand jury room. It is your imperative duty, gentlemen, to keep rigidly in confidence the counsel of the prosecuting attorney, his assistants, your fellow jurors and yourselves, until you are compelled in a court of justice to reveal it. You are only allowed to make disclosures when called upon in a court of justice, which seldom ever occurs. The injunction of secrecy demands that you shall not communicate to any person what has been done in the grand jury room. It means that you are not at li])erty to tell any person what has been said or done in the grand jury room, either by the prosecuting attorney, or by his assistants, or by your fellow jurors, or by yourselves. It would be as iiuich of a violation of your oath if you should permit anyone to question you about the proceedings in the grand jury room, as it would be to voluntarily impart any information. You sliould not permit anyone to suggest or ask you to vote for or against the indictment of anyone. If anything of that kind should occur, report it to the court. This is the only part of our legal machinery, in the administration of justice where 1584 INSTRUCTIONS TO JURY. absolute secrecy is required. Accusing c. person of a crime which may blast his reputation and cover him with ignominy, is a grave matter, and should not be done except for sufficient reasons and for the most momentous cause. The chief purpose of the grand jury is to have accusations of crime privately examined, so as to ascertain whether there is a probability of their truth, before giving them publicity in the form of an indictment. We find sometimes a class of persons who are eager to start criminal prosecutions upon inadequate evidence. Sometimes that may be from honest motives; sometimes from base, malicious and corrupt motives. If the grand jury were not required to keep secret their deliberations and what occurs in the grand jury room it is clearly evident that reputations may be injured or damaged. There is also reason for the obligation of secrecy, which is that it may prevent anyone accused, from escaping justice. If it were possible for anyone who is likely to be charged by the grand jury with a criminal offense, to learn or know of the investigation by the grand jury or to know that they are to be indicted, opportunities would ])e afforded for their escape. You understand that all charges of criminal offenses do not arise before the examination occurs, but that the grand jury itself may initiate investigation, and because of this fact, it is important that the rule of secrecy be observed. If this obliga- tion of secrecy were not enjoined by law, and grand jurors did not keep it, there would be another way in which justice might be defeated. It would enable friends of those who were accused before the grand jury, to bring all possible influences to prevent the indictment. It is therefore, obvious, gentlemen of the jury, upon these considerations, that this duty of secrecy although foreign to the law and its proceedings generally is absolutely necessary in the investigations of the grand jury, for the protection of the innocent and for the punishment of the guilty. It is not an idle obligation that you take to keep these matters secret. Your oath also requires that you shall present no person through malice, hatfed, or ill will. But at the same time it is GRAND JURY. 1585 your duty to not fail to indict anyone who ought to be indicted, from either fear, affection, reward or hope thereof. You must in all of your deliberations and presentments, present so far as you are able, the absolute truth to the best of your skill and understanding. You must lay aside all feelings and prejudices which might in any way interfere with you in the strict and impartial performance of your duty as a grand juror. No grand juror has the right to permit his understanding or judgment to be influenced or controlled by any sort of feeling foreign to the matter in question ; by any religious, social, or political bias, or personal feeling. No grand juror has a right to start a criminal prosecution to aid or defeat either side of a political, religious or personal controversy. Neither has any member of a grand jury a right to bring about an indictment of anyone for the purpose of gratifying his malice or the malice or hatred of any of his friends. If it should happen that any member of a grand jury should so violate his duties as to transgress these rules, it would degrade the high character of tlie grand jury. The prosecuting attorney and his assistants are constituted by law the representatives of the state in all criminal prose- cutions. It is their privilege and their duty to be present with the grand jury in its room, to present the accusations, to give information with relation to any matter that may be cognizabk^ l)y the jury, to give advice touching any matter of law when required, and to examine the witnesses when tliey deem it necessary;. It is tlieir duty to instruct you touching legal matters with the utmost fairness and candor, remembering that they are in charge of a tribunal before whom only one side of a case can be fully heard. It is your duly to follow tlieir instructions on matters of law, unless you are instructed to the contrarj^ by the court. It is as much the duty of the prosecuting attorney to safely guide yon in matters of law, pertaining to Tnatters of evidence especially, as it is of the court. Hearsay evidence is too unsatisfactory kind of (>videTic(\ and therefore is excluded in courts. It would be more unjust and 1586 INSTRUCTIONS TO JURY. harmful to regard or act upon this kind of testimony in the grand jury room than elsewhere. It will be the duty of the prosecuting attorney to advise you in such matters. No one but the prosecuting attorney, or his assistant, has a right to be present during your deliberations after the testimony is taken. You are the sole judges, however, upon all the evidence that may be offered in support of any accusations of crime. Neither the prosecuting attorney nor his assistants have the right to advise you, or to hint or to intimate how you shall decide a question of fact. In the conduct of the examination of witnesses however, it should be the purpose of the prosecuting attorneys and their assistants together with the action of your body, to reject and not consider the incompetent testimony. The law makes it the duty of the prosecuting attorney merely to give you information, to interrogate wdttnesses, and to give advice upon any legal matters when required. You must understand and respect this power and duty of the prosecuting attorney, and in your deliberations you should cause no embarrassment to him or to yourselves by asking or receiving any advice upon anything other than that which the law authorizes. You are not so apt to remember this rule as is the prasecuting attorney. Therefore, I caution you particularly as to it. It may happen in your deliberations that charges and accusa- tions of crime may be made, and it may come to your knowledge that by calling other witnesses who have some knowledge of the transaction, the suspicion or charge may be cleared up. I regard it just as incumbent upon you to follow out this line of examination as any other that may come legitimately within the province of your examinations and investigations. At least twelve of the grand jurors must concur in the finding of an indictment, and when so found, the foreman shall indorse on the indictment, ' ' A true bill, ' ' and subscribe his name thereon as foreman. It is made the duty of the grand jury at each term of the court, to visit the county jail, examine its state and condition, GRAND JURY, 1587 and inquire into the discipline and treatment of the prisoners, their habits and accommodations. You are required to report to the court in writing, whether the rules prescribed by the judges have been faithfully kept and observed, and whether any provisions of the law for the regulation of county jails have been violated, pointing out particularly in what such vio- lation, if any, consists. There is one crime with reference to which the statute makes it the duty of judges of the common pleas courts of this state, to especially charge the grand jury at every regular term thereof. It is the crime of operating bucket-shops, or gambling in margins. In obedience to this statute, I charge you to dili- gently inquire, investigate and true presentment make of all persons guilty of a violation of the provisions of the act against the so-called bucket-shop and margin gamblers. Now, gentlemen, let me say to you that the statute has espe- cially enjoined this duty upon the court, fo give you special instructions regarding this matter. It is therefore as much your duty to actually, honestly, and impartially investigate and determine whether any violations of this law are being committed ■within the confines of this county, as it is made the duty of the court to especially charge you regarding this matter. You, as well as the prosecuting attorney, have the right to require the clerk to issue subpoenas for witnesses to be brought before you to testify. You are at liberty at any time to call for further instructions from the court, although the instruc- tions which the prosecutor and his assistants give you, Avill probably be sufficient for all purposes. Your attention will be called to accusations of crime, by the prosecuting attorney, which come into this court from the police court and from justices of the peace, having been bound over to the grand jury by those courts. You must understand, however, that your investigations are not confined to this elass of cases, but that you have the power, and that it is your duty to take the initiative yourselves, and examin'" into any matters other than the class of eases coming up to you in the regular manner from the examining. 1588 INSTRUCTIONS TO JURY. In making this original examination, you will be guided and governed by the injunctions heretofore given you. Gentlemen, you will now retire to your room, and proceed as speedily as the nature of your work will permit, and in due time make your report to the court.^ 1 Franklin Co. Com. Pleas, Kinkead, J. Sec. 1814, Introductory. A grand jury is composed of not less than fifteen good and lawful men summoned from the county. An indictment is a written accusation of crime against one or more persons pre- sented to and preferred by the grand jury upon their oath or affirmation. Before you enter upon the discharge of your duties, it is incumbent upon the court to instruct you concerning them, and it is your duty to obey the instructions so given. An outline, an abstract, of your duties is contained in the oath w^hich your foreman took and the rest of you took by adoption. You were sworn to diligence, secrecy, and impartiality; or, as has been summarized by another, your duty is to "inquire with zeal, hear with attention, deliberate with coolness, judge with impartiality, and decide with fortitude." Sec. 1815. Origin of institution of grand jury. It has long been a cardinal principal of English law, that no one shall be put upon trial for any capital or other infamous crime or felony, until he has first been indicted by a grand jury of the county in which crime was committed. The institution of the grand jury is of very ancient origin. In the struggles and contests which arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against persecution in his name. It finally became an institution by wliieh the subject was rendered secure against oppression from unfounded prosecutions. Drawing the same inspiration from our parent country, and from considera- GRAND JURY. 1589 tions which gave to it its chief value in EngLond, the grand jury with us is designed as a means, not only of bringing to trial persons accused of crime upon just grounds, but also as a means of protecting the citizen against unfounded accusations, whether they come from the representatives of our state, or be prompted by partisan passion or private enmity. Sec. 1816. Grand jury to institute criminal proceedings as well as to guard against unjust accusations. Constantly bear in mind the two fundamental principles {ante, 1813) lying at the basis of the institution of which you are now duly and legally impaneled as members, and charged with its responsibilities. The one principle is as important as the other; neither is more binding upon you than the other. It is highly important in the interests of society, that accusa- tions be made against those appearing, upon an honest and impartial examination, to be probably guilty of the commis- sion of a crime. It is just as essential in the interests of society that no unjust or unfounded accusations be made against any- one, as it is that well founded accusations shall be made against those who are guilty. The making of unjust accusations would tend to injure society almost as much as the just preferment of accusations would benefit society. ^lembers of a grand jury ought to be able to readily discover from those who appear before it, whether or not they are prompted by partisan or private enmity. Scrutinize carefully the testimony of any such persons. Sec. 1817. Oath, and responsibility imposed thereby. The oath as administered to you contains some of the essen- tial principles which must control and govern you in your de- liberation. There is no greater responsibility resting iqion a member of societj' than there is upon one who takes an oath to perform a public duty. The taking of an oath l)y a grand juror means that he shall observe it to the same extent as the judge of the court observes his. A juror, be he petit or grand, 1590 INSTRUCTIONS TO JURY. who does not honestly and conscientiously observe and keep his oath, is almost as harmful to society as are those who commit crimes. The responsibilities of grand and petit jurors are ma- terially different. Your oath contains an appeal to conscience in the presence of your God, that you shall keep secret what takes place in your presence in the grand jury room. The purpose of this injunc- tion is plain and most commendable. You may have accusa- tions brought before you which, after due examination and deliberation, you will find unfounded, and return no indictment. The laws of decency demand that you shall not individually slander your brethren. Then how much stronger shall be the seal upon your tongue in respect to what goes on in the grand jury room. Sec. 1818. Special charge as to bucket-shops — Ganibling in margins. There is one crime with reference to which the statute makes it the duty of judges of the common pleas courts of this state, to especially charge the grand jury at every regular term thereof. It is the crime of operating bucket-shops, or gambling in margins. In obedience to this statute, I charge you to dili- gently inquire, investigate and true presentment make of all persons guilty of a violation of the provisions of the act against the so-called bucket-shop and margin gamblers. Now, gentle- men, our judges have been charging the grand juries at every session of court as to this matter for many years, but it seems to amount to nothing. Still there is constantly filed in our court's actions to recover money lost at this species of gambling, which are prolonged as long as possible by technical objections and are settled about the time they are reached for trial. The law should not be trifled witli, nor the time of this court taken up with such cases. It is your duty to call some of these parties in and examine them. I am reminded that I once read a book written by a distin- guished moral philosopher who occupies a chair in one of our great universities, in which it was stated that the law gave GRAND JURY. 1591 attention to the smnll gambler, but overlooked the large gam- bler who dealt in stocks and wheat on margins. This distin- guished scholar had overlooked the statutes such as we have in Ohio and in other states, and especially was not informed that it was made a special duty of this court to charge grand juries respecting this class of gamhling. And yet he is half right, because the law seems to be inoperative. We read in the daily newspapers Avithin but a few days, that the chief of police sounded the death knell to the bucket-shops in Chicago. Let this grand jury see that the same evil is eradicated from this locality. I do not see why any special stress should be laid upon one form of gambling by requiring a special charge as to the par- ticular form, any more than upon another different way of getting another man 's money by games of chance. In obedience to the law, however, I charge you that it is your duty to investi- gate and determine whether or not within the domain of Frank- lin county, Ohio, there are any persons, corporations, associa- tions, chambers of commerce, boards of trade, co-partnership, or other person, who are keeping any bucket-shop office or other place wherein is conducted or permitted the pretended buying or selling of the shares of stocks or bonds of any corporation, or petroleum, cotton, grain, provisions, or other produce, either on margins or otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so sold; or wherein is conducted or permitted the pretended buying or selling of such property on margins, or when a party buying any such property, or offering to buy the same, does not intend actually to receive the same if purchased, or deliver the same if sold. Now. gentlemen, let me say to you tliat the statute has espe- cially enjoined this duty upon the court, to give you special instructions regarding this matter. Tt is, therefore, just as much a part of your duty to actually, honestly, and impartially investigate and deterininc whether any violations of this law are being committed within the confines of tliis county, as it 1592 INSTRUCTIONS TO JURY. is made the duty of the court to especially charge you regarding this matter. If we are going to get any results from this special injunction of the legislature, I charge you to not fail to comply with tlie directions of the court in tliis matter. It is just as incumbent, however, upon the court to charge you that it is your duty to examine into any and all kinds of violations of our criminal statutes as it is in this particular one, which has just been called to your attention.^ 1 Franklin Count}', Kinkead, J. Sec. 1819. Character of evidence to warrant indictment. It is not your province to determine in any case whether a person who may be accused of having committed a crime is really guilty. It is to determine whether there is sufficient evidence to put him on trial before a petit jury. Before you can find a bill, you ought to be satisfied that the evidence before you unexplained and uncontradicted would be sufficient to au- thorize a petit jury to convict the accused of the crime which is imputed to him. If the evidence only establishes a proba- bility of guilt, that is not sufficient ; but in determining this question, you have no right to assume that there will be evi- dence upon the trial of the case before a p^itit jury that would explain or contradict the evidence which has been offered by the state before you. You are to decide the question solely upon the evidence that is before you ; and if it satisfies you that it is sufficient to warrant a petit jury in convicting, it is your duty to indict, otherwise not. The rule requiring suffi- cient evidence to convince beyond a reasonable doubt does not apply to the deliberations and conclusions of a grand jury.^ 1 Code, sec. 7193, requires that the judge call attention particularly to the obligation of secrecy, and explain tlie law applicable to such matters as are likely to be brought before tliem. Sec. 1820. Legal evidence only to be considered. It is your duty not to listen to any testimony except that which is legal; that excludes hearsay, reports, rumors, or con- GRAND JURY. 1593 jectures, but it is competent for you to consider any legal evi- dence which comes before you properly, whether it tends to excuse or exculpate the persons who may be under chaise. Sec. 1821. Lookiiig at guilt and innocence. Your duty even goes farther than this. While the design of the law is that the grand jury's investigation shall be one- sided, still, if in the pursuit of truth it is developed that there is evidence within reach of the grand jury that may explain away or qualify the; charge under consideration, it is compe- tent for you to send for that testimon3^ It is not right that any person should be indicted for an isolated fragment of any transaction, as has been well said. No innocent person should be indicted if there is evidence within reach of the grand jury that would qualify or explain away suspicious circumstances against him. But this does not mean — and this statement I am about to make is consistent with the one I have just made — it does not mean that you are to send out and search for testimony that would exculpate the persons who may be under charge. You are not a petit jury, and you have no right to supersede the trial jury by hearing both sides of a case. The evidence which you may send for to explain away or qualify the evidence for the state offered before you means simply that kind of testi- mony. It docs not mean that you can send for evidence which would contradict the evidence offered for the state, and thus compel you to locate the preponderance of evidence, or to deter- mine which of the witnesses whose testimony conflicts are telling the truth. Sec. 1822. Scope of inquiry. The oath which you took, gentlemen of the jury, makes it your duty to "diligently inquire and true presentment make of all such matters and things as shall be given you in charge, or may come to yonr knowb'dgc touching the present service."^ That language is a little bit obscure and it needs annotation. 1594 INSTRUCTIONS TO JURY. Obviously it means any matter which may be given you in charge by the court, or which may be submitted to your con- sideration by the prosecuting attorney. It includes those cases in which persons have either been recognized or committed to jail to await an indictment, a list of which will be handed to your foreman. This designation of the scope and subjects of your inquiry also means that it is your duty to inquire into crimes of which the knowledge may come to you from three other sources. While you are investigating the matters that may be submitted to your consideration by the court, or by the prosecuting attorney, or which may come before you on this list that I mention, a wit- ness testifying may reveal facts showing that another crime has been committed ; he may commit perjury in testifying. You may yourselves have witnessed the commission of some crime. From the disclosures made by your fellow jurors in the jury- room you may learn that other crimes have been committed. It is your duty to inquire into all these matters, for they come within the purview of that paragraph or portion of the oath which I have just quot'ed.' 1 Code, sec. 13082. — This oath means that they are to inquire into the circumstances of the charge, the credibility of the witnesses; not to judge of the merits, but satisfy their minds that there is probable cause for the accusation. 1 Wharton's Cr. Law, 492. 2 The giand jury shall proceed to inquire of and present all oflFenses what- ever committed within the limits of the county. Code, sec. 13082. This seems to be the only statute in Ohio in any manner designating the scope of inquiry to be made. The extent of the powers of the grand jury is not well defined by statute or by the authority of precedent. DiiTerent courts have arrived at variant conclusions. Taking the oath administered and the provision of the statute referred to and it surely authorizes the jury to investigate for themselves. That grand juries may, on their own motion, insti- tute any prosecution, see Opinion of Attorney General, 22; Wil- son's Lectures, 361; U. S. v. Tompkins, 2 Cranch C. C. 46; Prof. Wharton's (5th Ed.) Crim. Law, p. 457, gives the opinion of Judge Catron, of the U. S. Circuit Court, in which he maintained that: "The grand jury have the undoubted right to send for witnesses and have them sworn to give evidence generally." In Ward v. State, 2 Mo. 120, the court held that the grand jury could call and request witnesses to testify generally. To same effect see GRAND JURY. 1595 State V. Wallcott, 21 Conn. 272. Our statute makes it the duty of the clerk, "when required by the grand jurj'," to issue subpuenas, which further indicates that our state is not committed to tlie power of the grand jury themselves to institute matters. In Lewis v. Wake, 74 N. C. 194, tlie inquisitorial power of the grand jury to invade the family privacy of the county was denieir- (Icr in first degree. Manslaughter. Same — Provocation sufficient to reduce to man- slaughter. Adequate or reasonable provo- cation — Anotlier form. Provocation — Reasonable sus- picion of infidelity not sufficient. Assault and battery and as- sault defined. What is essential to convic- tion in the fiist degree. An act feloniously done ex- plained. Inflicting mortal wound with deadly weapon — Infer- ence frcni. Person intends natural con- sequences of his act. If not found guilty of murder in the first degree, may be of second. May find guilty of man- slaughter when. May find guilty of assault and battery. Defendant as an aider and abettor. Defendant, though guilty of no overt act, entered into a eonsjjiracy — Aider and abettor. Tnteni to kill in murder in second degree — U.se of (leiidly weapon. 1699 1600 INSTRUCTIONS TO JURY. SEC. 1860. Malice — The character of weapon used to be con- sidered. 1861. Manslaughter — No malice in — Provocation to reduce. 1862. Provocation — All surrounding circumstances to be con- sidered — Cooling time. 1863. Malice in murder — Another form. 1864. Malice — ^Another form. 1865. "Deliberation" and "premedi- tation" in murder — An- other form. 1866. "Purposely," "unlawfully" and "feloniously." 1867. Proof of purpose to kill, mal- ice, deliberation and pre- meditation. 1868. Person presumes reasonable consequences of his acts. 1869. Manslaughter — What is — Provocation. SEC. 1870. Manslaughter — ^Person present doing no overt act not aider. 1871. Self-defense — Whether defend- ant believed he was about to be robbed — Burden of proof on defendant. 1872. Self-defense in self-protection against riotous strikers attempting to stop de- fendant from working. 1873. Self-protection in ejecting one from saloon. 1874. Self-defense — -What consti- tutes — Another form. 1875. When a person may take the life of an assailant in self-defense — A different form — Giddings case. 1876. Plight to repel assault. 1877. Son may defend parent. 1878. Justifiable homicide. 1879. Common defense from attack. 1880. Evidence of previous charac- ter and repixtation. Sec. 1826. Preliminary statement concerning duty and obli- gation of jurors. You have heard the evidence offered on behalf of the state and the defendant, and it is now the duty of the court to in- struct you concerning the law which shall govern you in your deliberations upon your verdict. It is j'our duty to act in accordance with these instructions, and to this end you will be studiously careful in the consideration of the evidence and the law. You are the triers of the facts; in this respect the court has not supervision over you. You will ascertain and determine the facts from the evidence, to which you will apply the law as given you by the court, and render such verdict upon the facts in accordance with the law given you by the court, as your judgment dictates. HOMICIDE — MURDER AND MANSLAUGHTER. 1601 The law has made twelve men an essential part of the court, whose duty in determining the facts is as important as that of the court trying the case and determining the law applicable to it. This is the part which the people take in the adminis- tration of law and justice. You are just as much a part of the court as the judge who presides, and your offices for the time being are equally as important. The court thus consti- tuted, is the supreme power that finally determines all questions between the state and the one charged with crime. You are to exercise in all your deliberations the judgment of candid, intelligent men, who are anxious only to get at the truth. You should be especially careful that you shall be guided in the conclusion to which you come by the evidence submitted to you under the instructions of the court, and nothing else. This is a case of first importance to the defendant and to the state, and the duty with which you are charged is one of the most solemn and sacred that can devolve upon a citizen in any relation of life. The citizenship of the state are satisfied with a fair, intelligent, impartial consideration and determina- tion by a jury. It is essential to the peace and welfare of society and good government that every sane, guilty man be punished when his guilt is established by the measure of proof required to convict of crime in a court of justice. It is also essential to the welfare of society and of government that there shall be no conviction of a person irresponsible at the time of the commission of the act charged in the indictment. The great gravity of tlie charge and the caution with which you were selected as jurors, admonish you that your verdict should be reached with great care, uninfluenced by considerations of sym- pathy or prejudice, and that it should be the result of your soundest and best judgment upon the whole case. If jurors discharge their duties well, if you\hallenge the respect of the community by the justice, int('llig(me(^ and im- partiality of your decision, you will cojninjind tli(» respect and confidence of the people in our courts. It is of prime conse- quence that jurors respect and exalt tbe administration of jus- 1602 INSTRUCTIONS TO JURY. tice, so that neither party shall have any cause to feel that the case has not been impartially considered and judged. Thus realizing the gravity of your duties, the court directs your attention to the charges made against the defendant by the indictment preferred against him by the grand jury.^ 1 State V. Cly, Kinkead, J. Sec. 1827. The indictment. The indictment charges that the defendant on the day of did unlawfully, purposely and of deliberate and pre- meditated malice, kill and murder, etc. [The formal parts are omitted, because they are to be taken from each case.] Sec. 1828. Plea of defendant — Not gnilty and of insanity. To this indictment the defendant has entered a plea of not guilty, which puts in issue and denies each and every averment therein. In support of this plea of not guilty, defendant has inter- posed a plea of insanity. As a penalty of the law is assessed against persons only as are of sound mind and intellect, the court first instructs the jury concerning the plea of insanity. Sec. 1829. Burden of proof on plea of not guilty. The plea of not guilty places the burden of proving all the essentials of the crime on the state, which it must do beyond a reasonable doubt. Sec. 1830. Burden of proof of insanity. The law presumes every person to be sane until the contrary is shown. Therefore, the burden of proving the defense of insanity claimed is upon the defendant in this case. The pre- sumption of law that the defendant was sane at the time in question is to be regarded by you as the full equivalent of express proof of his sanity until such time as it is made to appear to you by a preponderance of the evidence admitted in HOMICIDE MURDER AND MANSLAUGHTER. 1603 this case that the defendant was insane at the time of the coin- raission of the act of killing charged in the indictment. The degree of evidence required for the proof of the defense of insanity claimed, is, that it shall be established by a prepon- derance of the evidence, the defendant being held to no higher degree of proof of this defense. Sec. 1831. Degree of evidence required to prove insanity- Preponderance. A preponderance of evidence in legal procedure means the greater weight thereof ; that is, the jury is to be governed by what you consider to be the greater weight of the evidence, giv- ing such credit to the testimony of witnesses as your judgment or opinion requires. The greater weight of the evidence is to be determined by you not by the number of witnesses who have given their testi- mony, but by the character, quality, reason or logic and value of their testimony according to your best judgment ; the greater weight means the greater probative value. The law of this state does not require the defendant to prove his insanity at the time of the commission of the fact charged to a degree of certainty, but merely that he was probably insane. The evidence may be considered to preponderate in favor of the insanity of the defendant at the time, whenever its existence is by the greater weight of the evidence made probable in your opinion after having given a full and fair consideration of all the evidence adduced for and against it. If the evidence touch- ing the defense of insanity in your opinion, upon full wnsidera- tion thereof, is evenly balanced, it does not then preponderate and it will then be your duty to conclude by your verdict that defendant at the time of the act charged was sane.^ 1 State V. Cly, Kinkead, J. Sec. 1831a. Insanity. The state lias no interest in the conviction and punishment of an irresponsible person; it would afford no example to others, nor would it deter others from commission of crime. But the 1604 INSTRUCTIONS TO JURY. state is zealous that justice shall be done. Every person is pre- sumed to be sane, until proven insane. A person who has normal intellect and reason, of course has the power and al)ility to control his act, and if he does not keep within the law, he must be held responsible. If his mind is unbalanced, and is therefore unable to control his acts, he should not be held responsible. The jury must move with caution, and carefullj' weigh every circumstance that may shed any liglit upon the question. You must decide whether the defendant probably had a diseased brain at the time, or whether he was actuated by excitement or highly nervous condition from worry, or hy passions and an- gered feelings, or revenge, produced by motives of anger, hatred or revenge. Many manifestations of insanity, as the term is used in law, are to be found in the law books. But I will not confuse the jury by stating them to you. I shall instead be content with merely stating what the real test of legal responsibility is, whether at the time of the homicide the brain of the defendant was partially deranged or diseased from some cause, to such an extent that his will power, his judgment, reflection and control of his mind Avas so impaired that the act of homicide was the result of diseased or deranged mind so that by reason thereof he was unable at the time to control his act, and that by reason of such condition of mind he was unable at the time to distin- guish between right and wrong. If the jury find from the evidence at the time defendant shot and killed his wife, there was some excitement of his mind which probably prompted an unpremeditated action of spontaneous inclination to kill his wife, which said excitement you find to probably have arisen from some mental derangement, instead of from feelings of passion, anger and revenge of a normal or sane mind, and that the defendant could not and did not at the time distinguish between the right and wrong of his act, then the jury may find the defendant not guilty. If, on the other hand, you find from the evidence that the defendant was sane, that his mind at the time of the homicide HOMICroE MURDER AND MANSLAUGHTER. 1605 was not diseased, but that he was at the time responsible in law for the consequences of his acts, you will dismiss the question of insanity from further consideration, and then give attention to the facts and law touching the homicide.^ 1 State r. Kovacs, Kinkead, J. Sec. 1832. Presumption of innocence. The indictment creates no presumption of guilt against the defendant. The law creates a presumption in favor of one charged with crime, that he is innocent until he is proven guilty according to law. This means that when the jury enters upon its deliberations in the consideration of the charges made by the indictment, it shall proceed upon the theory, as well as upon the fact, that defendant is presumed to be innocent. The de- fendant is entitled to the benefit of this presumption from the beginning of the trial, and until, after weighing the testimony carefully according to the tests prescribed by law, the jury reaches the conclusion that this presumption has been overcome. It is the purpose of the law that jurors, in approaching the consideration of charges made by an indictment, shall have their minds free and open, and that they shall not be prejudiced or influenced by the fact that an indictment has been found against the defendant. The aim and purpose of the rule is that jurors are to consider, and be guided only by the evidence offered in the case. If the jury comes to the conclusion that the evidence has overcome the legal presumption of innocence, you are instructed then that in the further consideration of the testimony, touching the guilt or innocence of the defendant, you must be governed and gmVled by t1io rule of evidence applicable in criminal procedure that you shall be satisfied of the guilt of the accused })eyond a reasonable doubt before you can find him ^ilty, and if not so satisfied you should acquit him. Sec. 1833. Reasonable doubt defined and explained. It is not incumbent upon one eliarged witli n rv\mo, in order to prove his innocence, that he shall satisfy llic jury of the 1606 INSTRUCTIONS TO JURY, existence of any material fact, which, if true, would constitute a complete defense. It is sufficient if the evidence merely cre- ates in the minds of the jurors a reasonable doubt of the exist- ence or truth of material facts, in which case the defendant is entitled to be acquitted. A reasonable doubt is an honest, rea- sonable uncertainty, such as may fairly and naturally arise in your minds, after having fairly and carefully considered all the evidence introduced upon the trial of this cause, when viewed in the light of all the facts and circumstances concerning the same. It is a doubt formed upon a real, tangible, .substantial basis. ■ It is such a doubt as would cause a reasonably prudent and considerate person to pause and hesitate to take action con- cerning matters affecting his own material interests, or in mat- ters pertaining to the graver and more important affairs of life, or in transactions like the one involved in this case. A doubt is not reasonable if it rests upon or is founded upon a mere caprice, fancy or conjecture ; it is unreasonable, also, if it arises in the mind of a juror by reason of his own personal feelings, passion or sentiment. A juror who acts upon such a doubt, or who creates a doubt in his own mind, to avoid a dis- agreeable duty, violates the oath which he takes. If, after a careful and impartial consideration of all of the evidence in this case, you can say and feel that you have an abiding conviction of the guilt of the defendant, and you are fully satisfied beyond a reasonable doubt of the truth of the charge, then you are satisfied beyond a reasonable doubt. If, from all the evidence in the case, the jury have a reasonable doubt, whether the defendant has been proven guilty, it is then your duty to find the defendant not guilty. Sec. 1834. Circumstantial evidence. The plea of not guilty entered by the defendant has the effect of a denial that he discharged the pistol which the indictment alleges defendant did discharge and shoot off to, against and upon the said A. C. with leaden bullets and shot her. the said A. C, then and there purposely and of deliberate and premedi- tated malice, and which did, as charged, cause her death. HOMICIDE — MURDER AND MANSLAUGHTER. 1607 No witness has been produced by the state who has testified that he saw the defendant do the shooting, as alleged. You will therefore look to and consider the surrounding facts and circumstances as developed from the testimony from which you will determine the truth or falsity of the allegations of the in- dictment according to the requisite degree of proof. What is meant by circumstantial evidence in criminal cases, is the proof of such facts and circumstances connected with or surrounding the commission of the crime charged, as tend to show the guilt or innocence of the party charged. If these facts and circumstances are sufficient to satisfy the jury of the guilt of the defendant as charged, beyond a reasonable doubt, then such evidence is sufficient to authorize the jury in finding a verdict of guilty of the crime or crimes charged, provided you find by the requisite degree of proof the existence of all the other facts essential to constitute the crime of which you find the defendant guilty by your verdict. Circumstantial evidence is legal and competent evidence in criminal cases, if of such character as to exclude every reasonable hypothesis other than that the defendant is guilty, and is entitled to the same weight as direct testimony.^ 1 State V. Cly, Franklin Co. Com. Pleas. Kinkead, J. Sec. 1835. Jurors must reason together. The law, in constituting a jury of twelve men, thus contem- plates that each and every one of you shall give your individual consideration of and judgment upon the evidence. The rules of law pertaining both to the essentials of the crime and the degree and rules of evidence, which are explained to you in these instructions, are necessarily binding upon the individual conscience and judgment of the mem1)ers of tlie jury. It is the duty of each juryman while deliberating upon his ver- dict, to confer witli liis fellows and give careful consideration to the views whicli his fellow juror may have to present upon the testimony in the case. A juror should not turn a deaf ear to the views of his fellows, and without listening to their 1608 INSTRUCTIONS TO JURY. reasons and arguments, obstinately stand by his own opinion in the matter, regardless of what may be said by the other jury- men. It must be the object of all of you to arrive at a common conclusion, and to that end you should deliberate together with calmness and be considerate of each other's views. ^ 1 State V. Cly, Kinkead, J. This is supported by an opinion by Shauck, J. ; Davis V. State, 63 O. S. 173, 174. Sec. 1836. Credibility of witnesses. The credibility of each of the witnesses is left entirely to the jury. The weight and credibility to be given the testimony is committed to your judgment. In determining this question, you may consider their intelligence, their manner and conduct on the witness stand, whether any witnesses showed zeal or feeling for or against either side ; whether there was any reluct- ance on the part of any witness in testifying; whether a wit- ness has an interest in the conviction of the accused, or an interest in his liberty, or in the liberty of any other person. You may consider the relation that each witness bears to the case ; his means of information ; the interest, if any, he may have in the result ; the motives, if any, that might lead him to swear falsely, or otherwise ; whether his motives for relating the facts testified to are wholly to bring a guilty person to justice, or to vent his wrath upon an innocent person ; or whether his sole motive was to tell the truth without regard to consequences; whether or not any witness was in a situation that might tend to make him warp his evidence, or whether he was so situated that such witness or witnesses had no reason to testify falsely. You may consider the probability or the im- probability of the truth of the statements made by any witness. You are not obliged to believe the statements of any witness merely because he made them ; and you may, if your judgment dictates, believe part and disbelieve part of any witness' testi- mony. These and many other matters might be called to your attention whereby you are to test the evidence. "Weighing the testimony by these and other tests you may have, you will deter- mine the effect to be given it, and you will give the testimony HOMICroE MURDER .ySTD MANSLAUGHTER. 1609 such credit as it is entitled to ; and if you determine from all the evidence adduced at the trial, under the charge of the court, that the evidence has established beyond a reasonable doubt the guilt of the accused, it is your duty to say so in your verdict. But if the evidence has not so convinced you, your duty requires you to find the defendant not guilty. Sec. 1837. Reputation of defendant for peace and quiet. You are instructed that the defendant is entitled to have the evidence touching the question of his reputation for peace and quiet considered by the jury, together with all the other evi- dence. The weight to be attached to such evidence as bearing on the guilt or innocence of the defendant is for the jury alone to determine. Sec. 1838. Essential elements to be proven. Before a conviction can be had under this indictment there are certain essential elements of the crime which must be estab- lished by the state to your satisfaction, and satisfy you and each of you beyond the existence of a reasonable doubt, as already stated. These essential element's of fact are : The crime must have been committed by the defendant, in the County of , in State of , on or about , 19 — ; that W. H. II., named in the indictment, was at that time a living person in that county, that he is now dead, that he died in the County of , in the State of , on the day of , 19 — ; that he came to his death by reason of a mortal wound inflicted upon him by the defendant in the manner and form, with the intent and purpose, and by the means mentioned and described in the indictment. These are questions of fact to be determined by you from the evidence in the ease, and if the state has failed to establish each and all of them to the satis- faction of each and all of you, to tlie extent and in the manner already indicated, the defendant could not and should not be convicted. IGIO INSTRUCTIONS TO JURY. Sec. 1839. Charge of first degree murder — Also includes lesser degrees. This indictmeut hy its teniis charges the defendant, as already- stated, with murder in the first degree; it also includes and embraces in its terms the crimes of murder in the second degree, manslaughter, assault and battery, and assault; and under it the defendant may be lawfully convicted of the crime of murder in the first degree, or any of the lesser crimes mentioned, if in your judgment the evidence before you, under the law here given, warrants such conviction, and upon the failure of the evidence under such rules as are here given you to establish his guilt as to any one of them, he must be acquitted. If the evidence so warrants it, you may find him guilty of murder in the first degree, or you may acquit him of murder in that degree and find him guilty of murder in the second degree, or you may acquit him entirely of murder and find him guilty of man- slaughter, or you may acquit him of murder and manslaughter and find him guilty of assault and battery, or you may acquit him of all the foregoing and find him guilty of a simple assault, and should the evidence fail to satisfy your minds beyond a reasonable doubt and to the extent already stated of the guilt of the defendant of the crime of murder in either degree, or of manslaughter, or of assault and battery, or of assault only, you should acquit him and return a general verdict of not guilty.^ iCode, sec. (7316). Refusal to instruct as to manslaughter when no evidence. O'Brien v. Com., 89 Ky. 35i). Not necessary to instruct as to» lower degrees wliere no evidence warrants. McClain Cr. L., §391; 30 Cal. 206, 117 Mo. 389, 89 Ky. 354, 56 Minn. 78. Sec. 1840. Law as to homicide— Murder in first and second degree, and manslaughter defined. The court will now instruct the jury concerning the law of homicide, the different degrees and grades thereof. Homicide, according to the statutes in Ohio, is divided into murder in the first degree, and murder in the second degree, and manslaughter. One who purposely, and with deliberate and premeditated malice kills another, is guilty of murder in the first degree. One who purposely, and maliciously, but without deliberation HOMICIDE MURDER AND MANSLAUGHTER. 1611 and premeditation, kills another, is guilty of murder in the second degree. Wlioever unlawfully kills another, except as described in the two sections defining murder in the first and second degree, that is otherwise than purposely and with deliberate and pre- meditated malice, and otherwise than purposely and maliciously, but without deliberation and premeditation, is guilty of man- slaughter. Putting it in another way, manslaughter is the un- lawful killing by one person of another, either upon a sudden quarrel, and upon legal provocation, or unintentionally w^hile the slayer is in the commission of some unlawful act. The essential facts, the existence of which the jury must find beyond a reasonable doubt, in order to find the defendant guilty of murder in the first degree as charged, are the following : 1. That M. K. is dead; 2. That her death occurred in Franklin county, Ohio ; 3. That her death was caused by the act of the defendant by the means and in the manner as charged in the indictment; 4. That the wound was by him purposely inflicted with the in- tention of causing the death of the deceased ; 5. That the wound was by him, the defendant, maliciously inflicted; 6. That the act of killing was so committed with deliberate and premeditated malice; 7. That the defendant was sane. The court will now define and explain to the jury with some detail, the essential elements of murder in the first degree.^ 1 State V. Knvacs, Kinkead, J. Sec. 1841. Intent. Purposely to kill, as used in the statute defining the crime, means that the jury must find beyond a reasonable doubt that the defendant intentionally took the life of the deceased. The law regards all persons who have arrived at years of discretion as rational beings, capable of reasoning from cause and effect upon matters within the ordinary experience and knowledge of men. It is, therefore, a rule of evidence which the jury must apply, that every person possessed of the faculty or reason, is presumed, as a matter of fact, to contemplate and intend the natural and probable conser|uenees of what he does. Acting under this rule of law, and weighing and considering the evi- dence offered in su[)[)ort of the allegations in the indictment, 1612 INSTRUCTIONS TO JURY. if the jury finds beyond a reasonable doubt that the defendant did, by the means and in the manner alleged in the indictment, take the life of M. K., then the jury may draw from such act or killing such inferences as in its judgment it believes the evidence to warrant, touching the intent of the defendant in taking the life of the deceased. In determining whether de- fendant intentionally took the life of his wife, the jury may, in addition to the consideration of the manner and means by which she came to her death, look to all the surrounding con- ditions and circumstances leading up to and at the time of the commission of the alleged act, and may draw therefrom such inferences as the judgment of the jury warrant, touching the intent of the defendant in the commission of the alleged act of homicide. If, therefore, you find that the defendant did take the life of the deceased intentionally, you will then proceed further to determine and find whether he did such act of killing with deliberate and premeditated malice, the essen- tials to constitute murder in the first degree. The jury will notice from the definitions of homicide in the three grades, that murder in the first degree differs from that in the second degree in that the intentional killing must have been done by defendant with deliberate and premeditated malice.^ 1 State r. Cly, Franklin Co., Kinkead, J. Sec. 1842. Malice. Malice and intent or design to kill are essential ingredients of both murder in the first and second degree, but malice in the first degree differs from malice in murder in the second degree, in that malice in the first degree is termed in law "express malice," and which may be made to appear to the jury from evidence by conduct of the accused, previous to the act of crime alleged, by conditions and circumstances pertain- ing thereto, by conditions and circumstances under which the alleged crime may have been committed, by the manner and means in which the killing is alleged to have been done by the accused. HOMICIDE MURDER AND MANSLAUGHTER. 1G13 Such malice may appear and be found by the jury from the evidence, or, the jury may infer such malice from evidence of facts or conditions surrounding the alleged crime and leading up thereto, as before stated, in order and for the purpose of determining in the minds of the jury whether the act of killing should be raised to murder in the first degree. To warrant the jury in finding from the evidence that the defendant was actu- ated and contToUed by deliberate and premeditated malice at the time of committing the alleged homicide, the jury must determine and find from the evidence that the defendant delib- erated and premeditated upon a purpose to kill the deceased for such length of time that the jury may believe therefrom that the accused had prior to the act of alleged killing formed in his mind a settled purpose and intent to take the life of his wife. Malice in murder in the first degree is an attribute of the mind, and must be found by the jviry to be of such nature and character as to warrant it in believing and finding, beyond a reasonable doubt, that the mind of the defendant at the time of the alleged homicide was of a wicked, depraved and malign- ant nature and character; that he wholly failed to appreciate or regard his social duties to mankind and that he was fatally bent on mischief. This is the legal meaning of malice in the first degree. But it is not necessary that tlie jury should find that the malignity of the mind of the accused which resulted from the deliberate and premeditated malice, should have been confined to a particular ill will toward the deceased, liis wife, although, the jury in determining upon the existence or non- existence or deliberate and premeditated m.alice, may look to all the circumstances, to all the conditions existing fit tlie time of the alleged crime, and for some time prior thereto, respect- ing the relation existing between the defendant and his wife, as well as any statementri made by defendant subsequent to the homicide, if any you find were made, and also the manner of the alleged killing. While the jnry in determining upon the existence or non- existence of deliberate and premeditated malice, may, as already 1614 INSTRUCTIONS TO JURY. stated, consider with all the evidence the use of a deadly weapon in the alleged act of killing by the defendant and draw such inferences therefrom as in the judgment of the jury seems reasonable and proper touching the question of malice, still the court instructs you that any such inference as you may draw from that act, may not alone justify the jury in finding the existence of express malice which is essential in murder in the first degree.^ In addition to such inference as to malice, before the jury may find the defendant to have been actuated by delib- erate and premeditated malice, it must find from the surround- ing circumstances and conditions, or from statements or declara- tions made by the accused, if any such were made, such facts as will warrant you in inferring therefrom that the act of alleged killing was done by the defendant with deliberate and premeditated malice.^ 1 State V. Turner, Wright, 20. See 102 Am. St. 1005. Actual intent. Com. V. Drum, 58 Pa. St. 9. 2 State V. Cly, Franklin Co., Kinkead, J. Wharton Cr. L., §§147, 149, 150, 64 Mo. 319, 116 Ala. 454, 125 Ala. 636. Sec. 1843. Deliberation and premeditation. The law fixes no length of time within which, prior to the act of killing, the premeditated purpose to kill or the premedi- tated malice, shall be found by the jury to have existed in the mind of the defendant. It is an essential prerequisite of mur- der in the first degree that the accused shall have deliberated and premeditated upon the purpose to kill for some period of time prior to the act of killing as charged. Deliberation and premeditation as used in the statute are words of such familiar meaning as to need no explanation to a jury of intelligent men. Deliberation means that the defendant meditated and reflected upon the purpose to kill ; premeditation means that the medi- tation incident to deliberation must have been before the act of killing as charged. The terms of the statute are such as to require that the defendant must have formed the purpose and intent to kill, and that the same must have existed in the mind for such a period of time prior to the killing as precludes the idea that the purpose and intent to kill was formed for the first time at the very time of the act of killing. If you find that HOMICIDE — MURDER AND MANSLAUGHTER. 1615 the defendant had no sueh intent and purpose to kill in his mind prior to the act of killing, you would not be justified in finding the defendant guilty of murder in the first degree. It is only essential that the jury should find from the facts and circumstances that tlie design and intent to take tlie life of the deceased existed for some period of time prior to the act of taking the life of the deceased ; and it is sufficient although but a short time elapsed after such purpose was formed and the act of killing was done, if there was deliberate and premeditated malice upon the part of the defendant.* 1 State r. Cly, Kinkead, J. Sec. 1844. Murder in second degree — ^Distinguished from murder in first degree. The court now instructs 3'ou as to murder in the second degree. It is defined by statute as follows : Whoever, purposely and maliciously kills another, but without deliberate and premedi- tated malice, is guilty of murder in the second degree. Murder in the second degree is distinguished from murder in the first degree, in that it lacks the element of deliberate and premeditated malice.^ It has the common essential of intent to kill; and malice is also an essential. But in this degree malice is what is termed in law to be implied malice. Its meaning is the same in the second as it is in the first degree of murder; that is, it is the dictate of a wicked, depraved and malignant mind, indicative of a mind devoid of all social duties in his relations to society and to those about him. The distinguishing characteristic of malice in second degree murder from malice in the first degree is in the manner and mode of proof thereof." Keeping in mind the meaning of malice, it need only be here stated that if the jury find from the evidence that the deceased came to her death by means of a pistol shot fired into her body at tlic hands of the defendant, as charged in the indictment, and the jury believes that such act was naturally calculated to cause lu^r death, it may infer i^ a lice therefrom.^ ^68 Cal. 101, 8 Colo. fJfin. 10 Towa, 447, 71 N. IT. 000, 148 Pa. St. 26. 2 no Ala. 454. 12.') N. C. 0.30. "State V. Cly, Franklin Co., Kinkead, J. 1616" INSTRUCTIONS TO JURY. Sec. 1845. Manslaughter. Manslaughter is distinguished from murder in the first and second degree by the fact that the killing is done unlawfully, either upon a sudden quarrel upon legal provocation, or uninten- tionally while the slayer is in the commission of some unlawful act. Intentional manslaughter may by the verdict of the jury be found from the evidence only when it finds that the act of killing — not being murder in the first degree — is the result of a sufficient provocation, that is, such provocation as under the law the jury may find to be adequate to reduce the act of killing from murder in the second degree. It is the province of the court to instruct the jury as to what may warrant it in reducing, by its verdict, the crime from murder in the second degree to that of manslaughter, it being a legal question, while it is the function of the jury to determine the existence or non-existence of such facts as may or may not warrant you in rendering, upon the evidence, a verdict of man- slaughter. The jury will be called upon to consider this question only if you should be of the opinion from all the evidence that the defendant was not guilty of murder in the first degree. It is a rule of law that an indictment for murder in the first degree necessarily embraces the lower grades of homicide, upon the principle that the whole necessarily comprehends its various parts, and if the evidence presented warrants it, the jury may acquit the accused of the higher degree, or degrees, and convict of the lower. Manslaughter is the unlawful killing of another. The absence of malice is the element of the case in homicide which makes it manslaughter.^ 1 State V. Cly, supra, Kinkead, J. No malice in manslaughter. Knapp case, 4 C. C. (N.S.) 184; affd., 70 O. S. 380. Sec. 1846. Same — Provocation sufficient to reduce to man- slaughter. The homicide can l^e reduced from murder in the second degree if the act is committed by the use of an instrument calculated to HOMICIDE MURDER AND MANSLAUGHTER. 1617 eause death, only when it appears from the evidence that the act of killing was done in the sudden heat of passion and upon sufficient provocation. When a person is killed under the influence of passion, or in the heat of blood, produced by an adequate provocation and before a reasonable time has lapsed for the passion to cool, the act of homicide wall in such case be reduced to manslaughter. The provocation must be so near to the act of killing as that there is not time for the blood or passion to cool and the act of killing, to be manslaughter, must be directly caused by the passion arising out of the provocation. It is the province of the court to state Avhat in law constitutes adequate provocation to reduce the crime of homicide, and the pro^dnce of the jury to determine and find the fact of the existence of sufficient provocation from the evidence. Suspected infidelity of a wife, or known past infidelity of the wife, are not deemed in law to be adequate provocation to justify a husband in taking the life of his wife, nor is an unwillingness on the part of the wife to live with her husband adequate provo- cation in law to reduce a homicide from murder to manslaughter. Nor are threats or harsh words sufficient provocation. With these instructions, gentlemen, the question is submitted to you for your determination of the facts. The court has now stated the law to you touching the three degrees of homicide, pointing out the elements of each. You will carefully weigh the evidence and apply the law, and decide the facts in accordance therewith.* 1 Stato i\ Kovacs, Kinkead. J. Instruction concerning form, of verdict. If you find that defendant was insane, acquit him. If you find that he was sane, and that he purposely and with deliberate malice, killed his wife, then your verdict should b(> one of guilty of murder in the first degree. If you find that he purposely and maliciously killed her. Iiut without deliberate and premeditated malice, then your vi>rdict should be guilty of iruirder in flu second degree. 1618 INSTRUCTIONS TO JURY. If you find him not guilty of murder in the first or second degree but that instead he killed her intentionally and unlaw- fully, in a sudden heat of passion, and upon sufficient provocation within the law given you by the court, your verdict may be manslaughter. The jury should come at its verdict without regard to the penalty imposed by law. You may, however, in the event that your verdict should be one of guilty of murder in the first degree, if you deem proper, recommend mercy, in which case it will be. the duty of the court to sentence the defendant to imprisonment in the penitentiary for life. Sec. 1847. Adequate or reasonable provocation — ^Another form. While the definition of an adequate or reasonable provocation is so general, and perhaps somewhat indefinite, the law is explicit in its enumeration of some of the facts that do not constitute a legal provocation at all. Thus words of reproach, no matter how grievous they may be, and contemptuous and insulting actions or gestures, no matter how much calculated to excite indignation, or to arouse the passions, are insufficient to free the prisoner from the guilt of murder if all the material facts necessary to constitute that offense have been proved. The provocation to have the effect of alleviating the killing into man- slaughter must have consisted of personal violence done by the deceased to the prisoner. Nor can the threats which were said to have been made by 0. against the life of the prisoner be considered as a reasonable provocation to negative the inference of malice and reduce the killing to manslaughter.^ 1 Pugh, J., in the Elliott case, Franklin Co. Approved by Sup. Ct. That legal provocation means personal violence, see 26 W. L. B. 117, and cases cited there. Although provocation will not excuse, it will sometimes furnish ground for inflicting less severe punishment in homicide. Clark's Cr. L. 72. Where there is adequate provo- cation the ofifense may be manslaughter. Ma her v. People, 10 Mich. 212. By adequate or reasonable provocation is meant a provoca- tion, under the influence of which an ordinary man of fair disposi- HOMICIDE MURDER AND MANSLAUGHTER. 1619 tion is likely to act rashly, without due deliberation or reflection. Maher v. People, 10 Mich. 212. What is a reasonable or adequate provocation is a question of fact for the jury. Provocation need not be at the time of the affray, but merely so recent as to show- no time for the blood to cool, 4 0. C. C. 141. One day is suffi- cient for cooling time, 26 W. L. B. 116. Sec. 1848 Provocation — Reasonable suspicion of infidelity of wife not sufficient. Causes arising from infidelity of a wife, as where the accused, the defendant, discovers another person with his wife in the act of committing adultery, the killing of the wife at the time of such discovery by the husband would be such legal provocation as would Avarrant the jury in rendering a verdict of guilty of manslaughter. But it is only when the husband has detected his wife in the act of adultery that the provocation will be deemed in law suffi- cient. If the jury should find from the evidence offered in this case that the defendant did not discover his wife in the act of committing adultery, but should find, on the contrary, that the defendant had reasonable suspicion and cause to believe that his wife had at some time previous to the act of alleged killing committed acts of adultery, you are instructed that if you should find the act of killing to have been done by the defendant under such circumstances, and as alleged in the indictment, and for such a cause, in the heat of passion resulting therefrom, you would not be justified in rendering a verdict in such case for manslaughter.^ 3 State V. Cly, Franklin Co. Com. Pleas, Kinkead, J. Information of wife's infidelity. Sawyer v. State, 3.) Ind. 80, 84; Laros v. C, 84 Pa. 200, 2 Blsh. Cr. Pr., sec. 675 Sec. 1849. Assault and battery and assault defined. Assault and battery consists of any intentional violence by one upon the person of another; as the })are touching of the person of another in an angry, revengful, rude, or insolent manner, and even greater violonco might amount to no greater crime. An assault is defined to be any attempt by violence to do a personal injury to another, and this may be either with the 1620 INSTRUCTIONS TO JURY. hand or with a weapon, but it must not be more than an attempt, it must fall short of inflicting the intended injury or it would amount to something more than an assault. Sec. 1850. What is essential to conviction in the first degree. Under this indictment it is essential to a conviction of murder in the first degree, and you and each of you should be satisfied beyond the existence of a reasonable doubt, and to the extent already stated, that the defendant, in the manner and in the form charged, and at the time and the place charged, did kill said W. H. unlawfully, feloniously, and purposely, and of deliberate and of premeditated malice. An act is done unlawfully when done in violation of law. Sec. 1851. An act feloniously done explained. To do an act feloniously is to do it criminally. To do an act purposely means to do it intentionally, not accidentally or by mischance, and this is the sense in which this term is used in our statutes and in this indictment. It imports an act of the will, intention — a design to do an act. Ordinarily the purpose to kill is to be gathered or deduced from the circumstances under which the killing is done. The presence of intent or purpose is a question of fact to be determined by you from all the circum- stances and facts proven in the case.^ 1 An intention must be present, 25 0. S. 464. Sec. 1852. Inflicting mortal wound with deadly weapon — Inference from. If you find under the instructions here given, that the defend- ant inflicted a mortal wound upon W. H. with a deadly weapon, that the same was used in a manner purposely calculated to destroy life, you may infer the intent or purpose to kill from the use of such weapon.* 1 Gardner v. State, W. 392; Erwin v. State, 20 0. S. 186. A deadly weapon is one Avliich is dangerous to life when used in the manner in which it is capable of the most injurious results, United States V. Small, 2 Curtis, 241. HOMICIDE — MURDER AND MANSLAUGHTER. 1621 Sec. 1853. Person intends natural consequences of his act. It is a gentn-al principle and you may api)ly it to tlii.s case, that what a man does willfully he intended to do, and intended the natural and reasonable consequences of his voluntary and deliberate acts, unless the circumstances are such as to indicate the absence of such intent.^ 1 Bobbins v. State, 8 0. S. 131. Sec. 1854. If not found guilty of murder in the first degree, may be of second. If you find the defendant is not guilty of murder in the first degree, you may then inquire further and ascertain and deter- mine M-hether under this indictment he is guilty of murder in the second degree. As already stated, the essential elements of this crime are the same as those of murder in the first degree, except it is not necessary that the killing be done of deliberate and premeditated malice. Therefore, if you are satisfied beyond the existence of a reasonable doubt that the defendant, on the day of , 19—, in the County of , and State afore- said, in the manner and by the means mentioned and described in the indictment, did unlawfully, feloniously, and purposely kill W. H., but without deliberation or premeditation, or either of them, then he is guilty of mairder in the second degree, and you should so report by your verdict. If, however, you have any reasonable doubt as to the essentials of any one or all of these elements of murder in the second degree having been established by the evidence in this case, it will be your duty to acquit the defendant of the crime of murder in the second degree under this indictment. In considering the evidence and determining whether or not the defendant is guilty of murder in the second degree, you should apply the same definition to the words "purposely" and "maliciously," and the terms "malice" and "purpose." or any other terms therein used, as have already been given to you in connection with the instructions as to murder in the first degree. 1622 INSTRUCTIONS TO JURY. The law presumes any felonious killing to be murder of some degree, but that presumption rises no higher than second degree, unless the state, by clear and satisfactory evidence, establishes the guilt of the defendant of the higher crime to the extent and in the manner already stated.^ 1 The jury may determine the grade of crime. Adams v. State, 29 O. S. 412; Dresback v. State, 38 0. S. 365. Sec. 1855. May find guilty of manslaughter, when. If you in your investigation of this case should find the defendant not guilty of murder in the first or second degree, you may inquire further and ascertain whether the defendant is guilty of unlawfully killing W. H., in the manner and by the means and at the time and place charged in the indictment, and if you should be satisfied to the extent and in the manner already stated that W. PI. was killed by the defendant, then you should find the defendant guilty of manslaughter, and should return a verdict accordingly; but if you and each of you should not be so satisfied, then you should render a verdict of acquittal as to this offense. In manslaughter, as already stated, the unlawful killing may be without malice, either upon sudden quarrel or unintentionally whilst the slayer is in the commission of some unlawful act, and the same certainty of proof is required and the same degree of proof as indicated as being necessary in murder in the first and in the second degree before a verdict of guilty could be rendered against this defendant for man- slaughter.^ 1 See Adams v. State, 29 0. S. 412. Under indictment for second degree may be convicted of manslaughter. Wroe v. State, 20 0. S. 460, Sec. 1856. May find guilty of assault and battery. If you should find the defendant not guilty of any of these crimes already mentioned, you may under this indictment, if the evidence in the case warrants it, find the defendant guilty of an assault and battery, or of an assault only.^ The essential elements of these offenses have already been given in the defini- tions of t?ie same, and need not now be repeated. These offenses should be established by the same certainty of proof as already HOMICIDE — MURDER AND MANSLAUGHTER. 1623 indicated as being necessary in each of the other crimes named, and, unless you are satisfied in the manner and to the extent already stated that the defendant is guilty of any one of the crimes or offenses named, it is your duty to acquit him, and the presumption of innocence already spoken of follows the prisoner and inures it to his benefit to the extent already stated as to all the crimes and offenses here named, and to each essential element necessary to constitute such crimes or offenses. 1 Marts V. Stump, 26 0. S. 162; Lindsey v. State, 6fl 0. S. 215; Dresback V. State, 38 O. S. 367, 5 O. 241, 13 O. S. 56!), 23 0. S. 582, 25 0. S. 399. See. 1857. Defendant as an aider and abettor. If you find, under the directions and instructions here given you, that W. H. was killed at the time and place, and in the manner and by the means mentioned in the indictment, it is not necessary for you to find that the blow that killed H. was struck by this defeiidant himself, if you find that the defendant was present, aiding and abetting the person w^ho struck the blow, and was there acting in concert with such person with the intent and purpose of aiding him in the commission of the offense, and in pursuance of a common design and purpose previously formed. Ordinarily that person is regarded as the principal who performs the act complained of, and one who acts in concert with hiiu with the intent and purpose to aid in the performance of the act and commission of the offense is an aider and abettor. The law, how- ever, provides that : whoever aids or abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender. And, in this case, I say to you as a matter of law that, if you find that a crime was committed as charged in this indictment, under the directions and instruc- tions here given you, and you should find that this defendant with others had formed a joint design and purpose to commit the same, and at the time the same was committed this defendant was acting in concert with others in the commission thereof, and with the joint intent and purpose to commit the same, and that while one or the other of those thus acting in concert with the 1624 INSTRUCTIONS TO JURY. defendant did the manual act of committing the crime or offense of striking the blow upon the forehead of W. H., in pursuance of such common design and purpose, this defendant was present, aiding and abetting in the accomplishment of the common design and purpose, then he would be guilty of the crime or offense so committed, and may be convicted as principal, under this indict- ment, of any of the crimes and offenses therein charged. But you can not under this indictment find the defendant guilty by reason of any offense committed or any act done against H. H., and before you can find this defendant guilty, you must find that there was a common design and purpose between him and the others engaged in the commission of the crime, to do the act complained of, and use the weapon, if you find a weapon 1o have been used, in the manner and for the purpose intended oy its use, and all these matters must be proven in the manner and to the extent indicated as being necessary in order to establish the crime itself or the essential elements thereof.^ 1 J. R. Johnston, J., in The State r. Charles Morfran, the famous "Blinky Morgan" case. Court of Common Pleas, Portage County, Sept. 7, 1887. Sec. 1858. Defendant, though guilty of no overt act, entered into conspiracy — Aider and abettor. In determining the question of the defendant's guilt or innocence of the alleged crime of murder in the second degree, as well as of the other grades of crime included in the indictment, as heretofore explained, the circumstances may be such that the defendant is responsible for the criminal act although he may not have personally struck the fatal blow or blows resulting in W. 's death. If you find that 0. and one or more of his associates who were with him on that occasion had, before this alleged affray, planned to make an unlawful assault upon W., or one or more of O.'s said associates, in furtherance of their common plan, or design, stfuek the fatal blow or blows resulting in W.'s death, or, if at the time of the alleged homicide 0. was present and assisted, aided or abetted, or purposely incited or encouraged one HOMICIDE — MURDER AND MANSLAUGPITER. 1625 or more of his said associates to strike the blow or blows resulting in W.'s death, the defendant is equally as guilty as if he had struck the fatal blow himself. On the other hand, the circumstances may be such that, although 0. v.as involved in the affray that resulted in the death of W., 0. would not be guilty of any offense, or may be guilty merely of the offense of assault and batter3\ If you find that there was no plan, before the affra.y, between 0. and one or more of his associates then with him, to commit the unlawful assault upon W., and that the fatal blow or blows, if struck, were struck by one or more of 0. 's assofciates, and that O. did no overt act with a view to produce the killing of W., nor in any wise aided, or abetted, or incited, or encouraged the others to assault W., or to do the killing, although the defendant and W. were involved in an independent affray, wherein W. was the aggressor, or assailant, and the defendant was within his own rights in carrying on the affray, the defendant is not guilty of any crime. Furthermore, if you find from the evidence that there was no previous plan between 0. and one or more of his associates to commit an unlawful assault upon W., or to kill him, and that the fatal blow or blows were struck by one or more of O.'s associates and that 0. did no overt act to produce the killing of W., or in any wise aided, abetted, or incited, or encouraged any of the others to make the unlawful assault, or to do the killing, but became involved and was the aggressor in an independent fight with decedent, in no wise connected with the others, and not calculated to produce death, or, after the fatal blow was struck by another, he himself struck the decedent a blow or blows which were not calculated to produce, and did not produce nor to contribute to the death of 'W.. the defendant would not be guilty of murder in the second degree, or manslaughter, but would be guilty of assault and battery. Keeping in view the instTuctions which T have .I'ust given you with regard to the circumstances under which the defendant ivS responsible for the criminal acts of one or more of his associates, and those circumstances wherein he is not responsible for such 1626 INSTRUCTIONS TO JURY. acts but is only responsible for his own criminal act or acts, if any, the court will now proceed to charge you with regard to murder in the second degree as alleged in the indictment. The offense charged is that the defendant purposely and maliciously killed one J. "W. on or about the day of , 19 — , in this county and state. ^ 1 State V. Orris, Franklin Co. Com. Pleas, Kinkead, J. Sec. 1859. Intent to kill in murder in second degree — Use of deadly weapon. To authorize a verdict of guilty of murder in the second degree it must be affirmatively shown by the state that there was at the time the blow was given an intent existing in the mind of the defendant to kill the deceased, and that he delivered the blow or blows with the intent to kill. To do an act purposely means to do it intentionally, not accidentally or by chance, and this is the sense in which this term is used in our statutes and in this indictment. It imports an act of the will, intention, a design to do an act. Ordinarily, the purpose to kill is to be gathered or deduced from the circum- stances under which the killing is done. The presence of intent or purpose is a question of fact to be determined by you from all the circumstances and facts in the case. If you find under the instructions here given that the defendant, or one or more of his said associates, under circumstances as herebefore related, making 0. responsible for their acts, inflicted a mortal blow or blows on J. W. with a deadly weapon, and that the blow or blows were applied in a manner purposely calculated to destroy life, you may infer the intent or purpose to kill from the use of such weapon, and from all other facts and circumstances in the case. It is a general principle, and you may apply it to this case, that what a man does willfully, he intended to do, and intended the natural and reasonable consequences of his voluntary and deliber- ate acts, unless the circumstances are such to indicate the absence of such intent.^ i State V. Orris, Franklin Co. Com. Pleas, Kinkead, J. HOMICroE MURDER AND MANSLAUGHTER. 1627 Sec. 1860. Malice — The character of weapon used to be con- sidered. Malice, as already stated, is an essential element of murder in the second degree. In law, malice signifies a willful design to do another an unlawful injury, whether such design be prompted by hatred or revenge or springs from the wantonness or depravity of the heart, disregarding all social and moral duties and fatally bent on mischief. Applying the law just stated with regard to the elements of purpose and malicious intent to kill, you will consider all the facts and circumstances adduced on the part of the state, to determine, if you conclude that the defendant killed J. W., as charged, whether or not he killed him purposely and inten- tionally, and further, whether or not he killed him maliciously. In considering these matters, you will take into consideration the character of the weapon, if any, the manner of its use, if any, the acts and conduct of the defendant at the time of the alleged killing, the probable consequences by the use of such weapon, if any, or producing death, or otherwise, applying tliese and all the other facts and circumstances adduced you will determine whether the purpose to kill and the malicious killing, as charged in the indictment, have been proved. If you determine that it is not proved, either that the alleged killing was done purposely or maliciously, or was done m this county and state, or was done by the defendant, it will be your duty to find the defendant not guilty of murder in the second degree. Sec. 1861. Manslaughter — No malice in — Provocation to reduce. In manslaughter the element of malice, which is an essential element of murder in the second degree, is wanting. "Wlien a person is killed under the influence of passion, or in that heat of blood produced l)y an adequate or reasonable provocation and before reasonable time for the blood to cool and reason to resume its habitual control, and is the result of temporary excitement by which the control of reason was disturbed, rather than by 1628 INSTRUCTIONS TO JURY. ■wickedness of heart or cruelty or recklessness of disposition, the crime is only manslaughter. But the provocation must have been given at the time of the commission of the offense or so short a time before, that there vas no time for the blood to cool and reason to resume its control over the mind. This adequate or reasonable provocation has been said to be of a character which will commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of reflection. The provocation must be of that kind and character which ordinarily provokes and leads to or causes a great degree of violence. If it is of that character from which a great degree of violence does not ordinarily follow, then it is not a reasonable provocation. Sec. 1862. Provocation — All surrounding circumstances to be considered — Cooling- time. The jury should take into consideration all of the circum- stances preceding, as well as attending the commission of the alleged homicide, and inquire what would ordinarily have been the conduct of men in general under like circumstances, and if the jury should find that the defendant did no more than might be expected of men in general under like provocation, the law, in its tenderness to human fraility, would require the jury to say that the killing was only manslaughter, but if you find that at the time of the killing there was no sufficient provocation, or if you find there was sufficient provocation prior to the killing, had the killing taken place at that time, which would have reduced the grade of the crime to manslaughter, that a sufficient time had elapsed between the time of the giving of the provocation and the time of the killing for the blood to cool and reason to resume its control over the mind, if all the other elements are proven, as I have defined them, then the provocation would not be sufficient to reduce the crime to manslaughter. Sec, 1863. Malice in murder — Another form. Malice is a distinctive feature in the charge of murder, for without it there can be no such thing as murder. It relates to HOMICIDE — MURDER .VND MANSL^VUGHTER. 1629 the moral qualities of a man's acts. Its general use in law is to express an act done without any sufficient reason where the act is wrong in itself. As applied to a case of homicide it expresses that it was committed by the accused without any adequate reason therefor and under such circumstances of cruelty as to evidence a mind devoid of social duty and fatally bent on mischief. And because ordinarily no man may lawfully kill another, and intentional homicides are in general the result of malice and evil passions, or proceed from a heart devoid of social duty, in every case of intentional homicide not otherwise explained by the circumstances it is presumed in the first instance that the slayer was actuated by malice, and the burden is placed upon him of showing the contrary, unless it appears from the circumstances adduced against him by the state. It is not necessary, however, that he should do this by evidence establishing the facts on which he relies to remove the inference of malice beyond a reasonable doubt. It is sufficient if the circumstances on which he relies for this purpose are established by a preponderance of evidence. If, after weighing and con- sidering the evidence offered by the state, in connection witli that offered by the defendant, the jury entertain a reasonable doubt as to the existence of malice, they should resolve tbat doubt in his favor; for when such a doubt exists after hearing and weighing all the evidence pro and con, the preponderance must certainly be with the defendant. The absence or existence of malice in the act of killing marks the distinction between murder and manslaughter. For though, under our statute, there may be malice in an unintentional killing amounting to manslaughter, still malice in such case is a very different thing from malice in an intentional killing. For the term malice is always referable to the nature of the act it is intended to characterize; a malicious beating is one thing and a malicious killing is another and different thing.^ 1 Thad. A. Minshall, J., in the Giddinp^s case. Malice defined. State v. Turner, W. 20; State v. flardner, 9 W. L. J. 411.^ 1630 INSTRUCTIONS TO JURY. Malice presumed from killing. Davis v. State, 2.5 0. S. 369; State v. Turner, W. 20; State v. Town, W. 75. Or by use of deadly weapon the jury may infer it. Erwin v. State, 29 0. S. 186; Clark's Crim. Law, p. 160, note 126 and cases. "The idea is not spite or malevolence to the deceased in particular, but evil design in general, the dictate of a wicked, depraved, and malig- nant heart; not premeditated hatred or revenge towards the person killed, but that kind of unlawful purpose which if persevered in must produce mischief." State v. Pike, 49 X. H. 309; Com. v. Webster, 5 Cush. 295. It has a broader meaning in tliis connec- tion than in ordinary language. Commonly it signifies hatred to an individual. Malice is express or implied. Express when it is personal malice against an individual, which intends to take life. Implied is an evil and malignant purpose prompting the act resulting in death. Sec. 1864. Malice — Another form. ''Malice is a necessary ingredient in both murder in the first and murder in the second degree. Unless the prisoner was actuated by malice, he can not be said to have been guilty of murder in either degree. 'It is not easy to give it (malice) any exact definition. It relates to the moral qualities of a man's acts. Its general use in law is to express an act done without any sufficient reason, when the act is wrong in itself. As applied to a case of homicide it expresses that it was committed without any adequate reason therefor and under circumstances of cruelty, as to evidence a mind devoid of social duty and fatally bent on mischief. ' ^ "Malice in a legal sense does not necessarily mean spite, hatred, ill will, revenge, or jealousy. It may, however, include all or any of these qualities. Whenever a wrongful act which produces death is intentionally done, without just cause or excuse, and the purpose to kill is deliberated upon and premeditated, it is, in the absence of mitigating circumstances, murder in the first degree, ' ' - 1 Giddings case. Judge Minshall's charge, page 422. 2 D. F. Pugh, J., in the Elliott case, Franklin Co. Approved by Sup. Ct. 1 Bishop's Cr. Law, sec. 429, 3. HOMICIDE — MURDER AND MANSLAUGHTER. 1631 Sec. 1865. "Deliberation" and "premeditation" in murder — Another form. "The statute defining the crime is in these words: 'If any person shall purposely, and of deliberate and premeditated malice, kill another, every such person shall be guilty of murder in the first degree.' The words purposely, of deliberate and pre- meditated malice, as applied to the act of killing, have much meaning. Purposely implies an act of the will ; an intention ; a design to do the act. It presupposes the free agency of the actor. Deliberation and premeditation require action of the mind. They are operations of the intellectual faculties, and require an exercise of reason, reflection, and decision. " ^ ' ' By the term ' deliberate, ' it is meant that the purpose to kill was considered. It means that the purpose to kill was not the sudden, rash conception of an enraged mind, but that the mind of the prisoner was sufficiently cool and self-possessed to consider and contemplate the nature of the act to be done. The term 'premeditated,' signifies that the purpose to kill was thought about and considered before it was put into execution. The term 'deliberation,' does not mean that the purpose was brooded over, or that the prisoner's mind was absolutely calm and unruffled at the time he deliberated. It is only necessary that it should be sufficiently composed, calm and undisturbed to admit of reflection and consideration of the design. Nor do the terms 'deliberate' and 'premeditate' import that the purpose to kill had to be conceived, deliberated upon and premeditated any specific period of time before the killing was done. The question is not how long did the prisoner deliberate and premeditate, but did he deliberate and premeditate at all? "Logically and legally some time must have intervened between the conception and execution of the purpose to kill, but it matters not how short the time was. The operations of the mind are so swift and deed follows thought so quickly that the deliberation and premeditation, and decision and act may all occur in a very brief space of time. The time will vary as the minds and temperaments of men and circumstances under 1632 INSTRUCTIONS TO JURY. which they are placed will vary. 'Deliberation and premedita- tion for a moment, as well as for a week, will render an intentional killing murder in the first degree.' It is immaterial whether the deliberation was in forming the purpose to kill, or in the continuance of the design after it was formed until it was executed. The distinctive difference between murder in the first and murder in the second degree is that there is no deliberation and premeditation in murder in the second degree. There must be purpose and malice as in murder in the first degree, but the malice need not be of the deliberate and premeditated character. If the purpose to kill appeared and existed for the first time in the prisoner's mind in the act of killing, the killing was only murder in the second degree. So, also, if the intention to kill was formed and executed in and from a sudden transport of passion, aroused by provocation, but the provocation was not sufficient, in law, to reduce the killing from murder to man- slaughter, it would only be murder in the second degree." - 1 Judge Birchard in Clark v. State, 12 0. 405. 2 D. F. Pugh, J., in the Elliott case. Approved by Supreme Court. Deliberation and premeditation defined. Turner v. State, W. 20; Shoe- maker V. State, 12 0. 43; Burns v. State, 3 W. L. G. 323. See Bishop's Cr. Law, sec. 728. Sec. 1866. "Purposely," "unlawful" and "feloniously." Under the first count it is essential to the conviction of murder in the first degree, that it appear that the defendant, in the manner and form charged, at the time and place charged, killed the said IT. unlawfully, feloniously, purposely, and of deliberate and premeditated malice. An act is done unlawfully when done in violation of the law ; to do an act feloniously is to do it criminally. The word "purpose" is used in the statute in its plain and ordinary signification. It means an act done inten- tionally, not accidentally or by mischance. It imports an act of the will, intention, a design to do an act. Ordinarily the purpose to kill is to be gathered or deduced from the circumstances under which the killing is done. If the instrument used in inflicting the mortal wound was a deadly weapon, and it is willfully and HOMICIDE MURDER AND MANSLAUGHTER. 1633 in a manner purposely calculated to destroy life, the jury may infer the intent or purpose to kill by such use of the weapon.^ It is a general principle that what a man does willfully he intended to do, and intends the natural consequences of his voluntary act, unless the circumstances in this particular case show the absence of such intent.- 1 Bishop's Cr. Law, sec. 680 and cases. An instruction that if the jury '■find from the evidence that the defendant used a deadly weapon in this case, and that death ensued from the use of such deadly weapon, then the law raises the presumption of malice in the de- fendant, and also an intent on his part to kill the decedent," was held erroneous, 29 0. S. 192. 2 Wm. R. Day, J., State t". Webster, Trumbull Co. Com. Pleas. The "purpose" in general is proved from circumstances. Gardner v. State, W. 392. See 8 0. S. 98, 8 0. S. 306, 10 0. S. 459. Sec. 1867. Proof of purpose to kill, malice, deliberation and premeditation. Now as to the proof of the purpose to kill, of malice, delibera- tion, and of premeditation. Intention and malice are of the heart and mind. Neither was probably ever proved to a jury by direct, positive evidence. The only possible direct witness to prove that the prisoner's purpose was to kill 0. and that he was actuated by malice was the prisoner himself, and if he had meant to testify that his mind and heart were in that condition before and at the time 0. was killed, he would have plead guilty, wliicli he did not do, but denied all of the incriminating circumstances which the state's evidence tended to prove. The existence or absence of malice and of purpose to kill is an inference which must be drawn by you from all the facts in the case. The emotions of the prisoner's heart and the operations of his mind at the times mentioned can only be revealed to you by his acts and his declarations. You have no power to ascertain the exact condition of his mind and heart at the times in question; the best you can do is to infer what it was from his acts and declara- tions. In determining this you should also consider what he has said here on that question in his t(>stimony, if you licjicvn him, and also all the other evidence bearing on this question. I 1634 INSTRUCTIONS TO JURY. have already said to you that a person is presumed to intend what he does. When a man performs an act which he knows will produce a particular result, from our common experience he is presumed to have anticipated and intended that particular result. The intention to kill, malice, deliberation, and premedita- tion may be proved by circumstantial evidence. The circum- stances from which they may be inferred are various. They may consist of previous threats of the prisoner to kill the man who was killed, preparation of weapons, search for the man who was afterwards killed, absence of provocation just before and at the time of the killing, dangerous nature of the weapon used to kill,^ the manner of using it, and the subsequent expressions of gratifi- cation by the prisoner over the killing of the deceased, if you find such facts have been proved. It is hardly necessary to add that the purpose to kill, malice, deliberation, and premeditation are all material facts and require to be found proved, in a case like this, beyond a reasonable doubt.^ 1 Use of deadly weapon does not raise a presumption of malice and intent to kill, but the jury must consider all the circumstances. Erwin V. State, 29 O. S. 186. 2 D. F. Pugh, J., in the Elliott case. Sec. 1868, Person presumes reasonable consequences of his acts. But the law presumes that every person intends the natural, probable, and reasonable consequences of his own acts inten- tionally done. "Wrongful acts, knowingly or intentionally committed, can neither be justified nor excused on the ground of innocent intent. The color of the act determines the complexion of the intention." To illustrate part of this rule, if a person voluntarily or intentionally does an act, or aids, assists, and encourages another to do an act, whose natural, reasonable and probable tendency is to destroy another's life, the conclusion may be drawn that he intended to destroy that life.^ ' D. F. Pugh, J., in the Elliott case. "As a rule of evidence, a party is presumed to intend the natural consequences of his own acts." Bobbins v. State, 8 O. S. 131. HOMICIDE MURDER AND MANSIxjVUGHTER. 1635 Sec. 1869. Manslaughter — What is — Provocation What are the circumstances which will repel the imputation and inference of malice that grows out of an intentional killing, and will reduce the offense from murder to manslaughter? The absence of malice is the trait of a case of homicide which makes it manslaughter. When a person is killed '"under the influence of passion, or in the heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time for the blood to cool and reason to resume its habitual control, and is the result of temporary excitement by which the control of reason was dis- turbed rather than by wickedness of heart, or cruelty, or reckless- ■ness of 'disposition, " it is only manslaughter.^ Wlien the killing is done under such circumstances, the law in its leniency imputes it to be the infirmity of human nature and not to the malignity of the heart. One of the established rules of law is that the act of killing, or aiding or assisting in killing, to be manslaughter must be directly caused by the passion arising out of the provocation. It was not sufficient that the prisoner's mind was agitated by passion arising from some other provocation, or provocation given by some other person. Another rule is that the provocation must have been given at the time of the commission of the offense, or so short a time before that there was not time for the blood to cool and reason to resume her empire over the mind. It has been said tbat it (provocation) is whatever will "commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of reflection."^ The provocation must be in itself "calculated to provoke a great degree of resentment," and such as ordinarily super- induces a great degree of violence. Tf it is so slight and trivial that a great degree of violence does not usually follow, it is not reasonable j)rovocation. ,1636 INSTRUCTIONS TO JURY. It has also been said by an able judge that, in a case like this, the jury "should take into consideration all the circumstances preceding, as well as attending the commission of the homicide, and inquire what M'ould ordinarily have been the conduct of men in general under like circumstances," and that should the jury "find that the defendant did no more than might be expected from men in general under like provocation, the law in its tenderness to human frailty would require" ^ the jury to say that the killing was only manslaughter.* 1 Moher v. The People, 10 Mich. 212. 2 13 Tex. App. 563. 3 Gidding case, 424. 4 D. F. Pugh, J., in the Elliott case. Sec. 1870. Manslaughter — Person present doing no overt act not aider. "If the jury find from the evidence that the principal named in the indictment did take the life of the deceased, but did it in a sudden quarrel, or in the heat of passion, his offense would be but manslaughter; and if you further find that the defendant did no overt act and took no active part in the killing, but was merely present when the quarrel arose or fight began, you can not in such case find him guilty as an aider and abettor of the principal. ' '^ 1 Goins V. State, 46 O. S. 457. Sec. 1871. Self-defense — Whether defendant believed he was about to be robbed — Burden of proof on defendant. Evidence has been offered tending to show that the defendant assaulted the deceased with a club or some other instrument which resulted in his death. Evidence has also been offered tending to show in the affray which occurred on that occasion, the deceased first attacked and assaulted the defendant, and sought by force to take his money from him, or rob him, and, in order HOMICIDE MURDER AND MANSLAUGHTER, 1637 to prevent the assault and taking his money by W., one or more of the defendant's associates, who were with him, struck W. with a club or other instrument and beat him off the defendant, and that the defendant did not strike W. Whether or not the facts or any of them just related, are proved by the evidence, are matters for your determination. If you find that W. first attacked the defendant, and sought forcibly to take his money from him, or to rob him, and that the defendant, or his said associates who saw the attack, in good faith believed and had reasonable ground to believe that defendant was being assaulted with a view of feloniously taking his money and robbing him, or that the defendant was in imminent danger of death or great bodily harm, the defendant or one or more of his said associates had the right to use the necessary force to repel the attack upon defendant and to prevent the unlawful taking of his money, even to the taking of assailant's life. And this is so, even though the defendant, if he struck the fatal blow, or one or more of his associates, if they or any of them did it, were mistaken as to the felonious attempt to rob the defendant, or as to the existence or imminence of the danger. You will, therefore, inquire, if you find that the defendant struck the fatal blow or blows, whether or not the defendant at the time, in the careful and proper use of his faculties, in good faith believed and had reasonable ground to believe tliat a felonious assault was being made upon him hy W. to rol) liiin of his money, or that he was in imminent danger of death or great bodily harm, and that his only means of preventing such assault or escape from such danger, was by taking the life of the said W. If defendant so believed, and, under all the circumstances then surrounding him, he had reasonable ground to so believe, then you should find that he was justified in taking the life of decedent and your verdict should be not guilty. You will observe, however, that the mere belief of defendant, if he had such, was not sufficient to justify the taking of decedent's life, but to that must be added that he had reasonable grounds for such belief. 1638 INSTRUCTIONS TO JURY. In regard to the amount of force necessary for such purpose, the law does not measure nicely the degree of force which may be employed under such circumstances, and if more force was used than was necessary, the law does not hold one responsible for it unless it was so disproportionate to the apparent danger as to show wantonness, revenge, or malicious purpose to injure the assailant. If you find, however, that W. was not the first assailant, or did not attack the defendant with the view of feloniously taking his money from him, or robbing him, or causing his death, or producing great bodily harm upon him, and that the defend- ant neither believed, nor had reasonable ground to believe, that W. made such assault or attack upon him, then the defendant's right of self-defense can not avail him. The burden of establishing the defense of self-defense is upon the defendant, and to entitle him to an acquittal upon this ground, this defense must be established by a preponderance, that is to say, the greater weight of the evidence. If, however, upon the whole testimony, including the evidence relating to self-defense, you have a reasonable doubt as to the defendant's guilt, either of murder in the second degree or of manslaughter, or of assault and battery, or of simply assault, it will be your duty to acquit the defendant. Evidence has been introduced as to the reputation of the deceased for honesty. The object of this evidence is to reflect upon the question of W. 's having attacked the defendant with a view to feloniously take from him his money or to rob him. However, if you find that W. had a good reputation for honesty prior to the alleged affray, nevertheless, if you find that W. did feloniously assault the defendant with the view of taking his money or robbing him, and the defendant did defend himself against such assault, then W.'s prior reputation for honesty will avail nothing.^ 1 State V. Orris, Franklin Co. Com. Pleas, Kinkead, J. IIO.MICIDE MURDER AND MANSLAUGHTER. 1639 Sec. 1872. Self-defense in self-protection against riotous strikers attempting to stop defendant from working. It is claimed by defendant, however, 1st. That such killing was justifiable on his part in order to protect himself from being killed, or from great bodily harm. 2d. That, at the time the fatal shot was fired, by reason of the injuries he had received at the hands of the mob, his reason was gone, he had lost the control of his faculties, and was incapable of forming an inten- tion to commit a crime; in other words, he claims that he was temporarily insane, and did not understand and appreciate the nature of what he was doing and that it was wrong. 1st. As to the question of self-defense. It appears in evidence in this case that the defendant was employed by a contractor to fill the trenches in the Town of . It also appears in evidence that the deceased, A. S., and a num])er of other laborers, who had been previously employed as trench diggers, had gotten into a dispute with their employer and had gone on a strike, and it was their combined purpose to permit no other person to perform any labor upon the contract till tlie matter in dispute between them and their employer was settled. And pursuant to this purpose, they went to the place defendant was employed and ordered him to stop work. This, it seems, he refused to do. The defendant had a right to solicit employment of the contractor and was guilty of no wrong when he accepted such employment and entered upon the discharge of his duties; (and I say to you) the deceased, A. S., and those engaged with him, when they assembled and went to the defendant and ordered him to cease work, became rioters and were guilty of an infraction of the laws of Ohio. They had no right to demand that the defendant cease work, and he was under no obligations to obey them when they did so order him. And if they assaulted liim to compel him to desist, it was his right to repel the assault with force. He was under no obligation to retreat; and he had a right to use sufficient force to compel them to desist from their assaults upon him — even by taking the life of his assailants, or some of 1640 INSTRUCTIONS TO JURY. them, if that was apparently necessary in order to preserve his own life, or to protect himself from great bodily harm at the hands of the mob. It is claimed, however, on the part of the state, that this shooting was done by defendant out of a spirit of malice, wanton- ness, and revenge, growing out of the punishment he had received at the hands of the mob. (a) Burden of proving self-defense hy preponderance. Before proceeding further, I wish to say, however, that the burden is on the defendant to prove to you by a preponderance of evi- dence, either that he was justified in killing the deceased, or that he had temporarily lost the use of liis faculties and did not appreciate and understand the nature of the act he was per- forming. By a preponderance of evidence, I mean the greater weight of the testimony, or, to state it in another form, if, after considering the evidence in all its bearings, you are of the opinion that the probabilities are in favor of the claims made on the part of the defendant, either that he was justified in doing the shooting, or that he had temporarily lost the use of his faculties so that he did not understand and appreciate the nature of the act he was performing, then the preponderance of the evidence would be made out, and your verdict, in that event, must be not guilty. But if the evidence was equally balanced, or the greater w^eight is with the state, then the defendant would not have the preponderance of evidence upon those claims. As to the question of self-defense. The defendant had a right honestly and in good faith to solicit employment', and he had a right to engage in that employment, even though he had information that it was the purpose of the strikers to stop all persons from working. Honest labor is a laudable employment, and no person shall be discouraged from engaging therein. Not only did he have a right to seek employment and engage therein notwithstanding the threats of the mob, but he had a right to arin himself for his own protection, however, with this qualification always in view: the employment must have been sought honestly and in HOMICIDE MURDER AND MANSLAUGHTER. 1641 good faith, with the single purpose iii view of performing the labor for the wages agreed upon, and he must not have sought employment and engaged therein as a mere subterfuge for the purpose of inciting an attack from the mob. No person must seek and court a controversy, for if he does, he must take the consequences flowing therefrom. Evidence has been ofl'ered on the part of the defendant tending to show that when he turned over his scraper, started to hitch a tug, and resume work, one T., a member of the mob, attacked him, and that he was immediately set upon by other members of the mob with deadly weapons, and it is claimed on the part of the defense that he was compelled to use a deadly weapon in order to save his own life, or to protect himself from great bodily harm. If the defendant did not purposely and intentionally bring on the assault, then I say, if, in the careful and proper use of his faculties, he believed and had reasonable ground to believe that he was in imminent danger of death or great bodily harm, and that his only means of escape was by taking the life of his assailants, or some of them, he was justified in taking the life of the deceased, A. S., even though in fact he was mistaken as to the existence of danger. In times of great excitement and apparent danger, where a person is called upon to act quickly, the same degree of prudence and judgment is not required of him that would be required had he an opportunity to deliberate upon his act. If, under the rules I have given you, you find that the defendant was justified in firing the fatal shot which resulted in the death of A. S., you need go no further, but your verdict will be not guilty. If, however, you find the defendant was not justified under the rules already announced in taking the life of A. S., then you will inquire further. Had the defendant so lost the use of his facultier, by reason of the injuries he had received at the hands of the mob, that he did not appreciate and understand the naturo of the act he was performing, and that it was wrong? If he was in such condition of mind liy reason of the injuries he had received as to deprive him of the ability to reason and to consider, and to know what he was doing, and the fatal shot 1642 INSTRUCTIONS TO JURY. was fired while he was in such condition, then he would be guilty of no crime, and your verdict should be not guilty. He is not entitled to an acquittal, however, on the ground of mental incapacity, if at the time of the shooting he had sufficient mental capacity and reason left to enable him to distinguish between right and wrong, and understand and appreciate the nature of his act and his relation to the party injured.^ 1 Sheets, J., in State v. Van Skiver, Auglaize Co. Com. Pleas. Sec. 1873. Self-defense, in ejecting one from saloon. If the jury should be of the opinion that although the defend- ant M. undertook to eject the deceased and others from the saloon, and that while either or both were in the act of ejecting the deceased, that the deceased resisted and made a violent attack upon the defendant, you will then determine whether the defend- ant alone, or acting jointly with M., took the life of the deceased in the exercise of what is known in law as the right of self- defense. When a person in the lawful pursuit of his business, and with- out blame, is violently assaulted by one who manifestly and maliciously intends and endeavors to kill him, the person so assaulted, without retreating, although it be in his power to do so without increasing his danger, may kill his assailant to save his own life or prevent enormous bodily harm. Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, in good faith believes, and has reasonable ground to believe, that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger. In considering the question as to whether or not under the facts and circumstances as shown by the evidence in this casp. the defendant was acting in defense of his own life or body, the jury will be called upon to determine who was the aggressor, that is, whether the deceased M. was the aggressor or whether the HOMICIDE MURDER AND MANSLAUGUTEE. 1643 defendant himself was the one who was responsible for the beginning of the trouble. If the jury should be of the opinion from the evidence that the defendant was the aggressor and that he undertook to do injury to the deceased without just cause, then you will be called upon to apply the following rule of law: There is a distinction between the case of a person driven to the necessity of taking life in self-defense in a conflict provoked and incited by his own wrong and that of one reduced to such necessity in a conflict that was neither sought nor pro- voked by him. In the case when a party assaulted is in the wrong, he must, before taking the life of his assailant, to save his own life or to avoid great bodily injury, flee as far as he conveniently can, either by reason of some wall or other impedi- ment, or as far as the fierceness of the assault will permit, for it may be so fierce as to not allow him to yield a step without manifest danger to his life or great bodily harm, and then, in his defense, he may kill his assailant instantly. If on the other hand, the jury should be of the opinion that the defendant in this case was in pursuit of his right to reasonably eject the deceased from the room for some disorder, and that, therefore, he was not in the wrong, or he neither provoked nor incited the conflict, but was assailed while in the pursuit of this purpose to eject the deceased from the room, then the jury are instructed that the defendant had the right, without retreating a step, to kill his assailant, if necessary, to protect his own life or to avoid grievous bodily harm. The danger must in either case be actual or apparent, and the party killing must have honestly believed that he was in danger of losing his own life, or of suffering some great bodily harm, before killing his assailant. And it is not enough that the party killing honestly believed that there was imminent danger to himself, but the circumstances must hav(> boen such as would have afforded a reasonable ground for such belief. Of this the jury must judge from the circumstances as developed by the testimony. If the appearances were such as would have jilnrmed a man of ordinary firmness and would have impressed 1644 INSTRUCTIONS TO JURY. him that such danger was inuninent, and if the assailed party honestly believed such to be the case, it is not material whether the danger was real or not. Thus, to make the application to this case, if you should be of the opinion that the deceased had a revolver in his hand ; that there was an apparent purpose on his part to use it on the body of the defendant, and that the defendant, as would any man of ordinary firmness, then honestly believed that the deceased intended to instantly kill or seriously wound him, in such case the jury will determine whether or not the defendant had a reasonable ground to believe that his life was in danger, and w'hether or not he took the life of the deceased in defense of his body or his own life. The burden of establishing the defense of self-defense is upon the defendant and to entitle him to an acquittal upon this ground, this defense must be established by a preponderance, that is, by the greater weight of the evidence. The law does not measure nicely the degree of force which may be employed by a person attacked, and, if he uses more force than is necessary, he is not responsible for it, unless it is so disproportionate to his apparent danger as to show wantonness, revenge or a malicious purpose to injure the assailant. The defendant claims that the deceased used vile and reproach- ful language toward him; that he insulted him, and was dis- orderly in his house. If you find from the evidence that this is true, the defendant, who was conducting a place of public resort, would have the right to put the deceased out of his house, or order him out of his house, but he would only have the right to use ordinary force, cr such force as w^as necessary to eject the deceased from his house. The right to order the deceased out or the right to put the deceased out does not carry with it the right to kill the deceased, if he refused to go out. This right of the defendant to eject the deceased from his house does not in any manner change the rule of self-defense or the right to Mil, as I have given it to you. If you find from the evidence that defendant used force and violence disproportionate to the defendant's apparent danger, HOMICIDE MURDER AND MANSLAUGHTER. 1645 in attempting to eject said :M. from the saloon, if such you find and more force than the circumstances show and indicate to be necessary, and if there was resistance by said :\I., or if there was an attack by said ]\L, or by said ^L and another person, and if the circumstances do not show any reasonable apprehension of loss of life, or of great bodily harm to the defendant by such resistance or attack, if any, by said ]M., or by said ^l. and another person, on defendant, and if under such circumstances defendant shot and killed said 'M., then I charge you that the defendant was not justified in taking the life of said M., and if j^ou find, under the instructions heretofore given you, that the defendant shot and killed said IM. purposely and maliciously, with intent to kill said ]\I., the defendant would be guilty of murder in the second degree, and you should, in that event, so find your verdict. If you find from the evidence, and under the instructions I have given you, that said M. came to his death by means of a shot discharged from a revolver, unlawfully but without malice, pointed or aimed by the defendant at or towards said ]\I., then, and in that event, the defendant would not be guilty of murder in the second degree, but he would be guilty of manslaughter, and you should so find by your verdict.^ 1 State 1-. Simi. Franklin Co. Com. Pleas, Kinkead. J. Sec. 1874. Self-defense — ^What constitutes — Another form. Under certain defined circumstances, the laws of God and man give the right to take life in self-defense. "When a person in the lawful pursuit of his business, and without blame, is violently assaulted by one who manifestly and maliciously intends and endeavors to kill him, the person so assaulted, without retreating, although it he in ]iis power to do so without increasing his danger, may kill his assailant to save his own life, or prevent enormous bodily harm." ^ "Homicide is ju.stifiable on the ground of self-defense, where the slayer, in the careful and proper use of bis faculties, hoiw Me believes, and has reasonable ground to lielieve that be is in imminent danger of death or great bodily harm, and that his 1646 INSTRUCTIONS TO JURY. only means of escape from such danger will be by taking the life of his assaliant, although in fact he is mistaken as to the existence or imminence of the danger. ' ' ^ The claim of self-defense implies, presupposes, that 0. was intentionally killed. It is plain that when one kills another in self-defense he intends to do it, but it would not be unlawful killing, although intentionally done. Before you can acquit the prisoner on the ground of self- defense, you must be satisfied that several fact's, which I shall now enumerate and explain, were, by the evidence, proved. 1. You must be satisfied that 0. w'as the assailant; that he began the shooting. 2. You must be satisfied that 0. manifestly and maliciously intended and endeavored to kill or do great bodily harm to the prisoner and P. E., or one of them. Did 0. intend to do that? And in doing it, was he actuated by malice ? Or was he simply defending himself? Trying to save his own life? These are the questions for your determination under this head. 3. You must be satisfied that the prisoner, in good faith, believed, and had reasonable grounds for believing that he was in danger of losing life, or sustaining great bodily harm from the violence of 0. That belief must have been honest and sincere. The bare belief, however, was not sufficient; there must have been reasonable grounds for believing that there was such danger, and they must have acted under the influ- ence of such belief alone. In determining whether there were such reasonable grounds for the belief you are not to conceive of some ideal reasonable person, but you should, as nearly as possible put yourselves in their position, with their physical and mental equipment, surrounded with the circumstances with which they were surrounded, and exposed to the influences to which they were exposed. Does the evidence show that they had such reasonable grounds for believing that 0. was about to take tJieir lives, or the life of one of them, or to do great bodily harm to them or one of them, just before and at the time he was killed ? HOMICIDE MURDER AND MANSLAUGHTER. 1647 4. You must be satisfied that the danger of losing their lives, or the life of one of them, or of both or one of them sustaining great bodily harm at the hands of 0. was, at that time, actually or apparently imminent and irremediable. The law regards human life as the most sacred of human interests committed to its protection, and there can be no successful interposition of self-defense unless the necessity for taking O.'s life was, at least, apparently pressing and urgent at that time — unless, in a word, the taking of his life was the reasonable resort of the prisoner, or one of them to save their own lives, or the life of one of them, or to avert great bodily harm to both, or one of them. It is true they had a right to act upon appearances — upon such appear- ances as would induce a reasonable person in their position to believe that there was such immediate danger, and that if the appearance turned out to be fallacious they were not to be blamed. 5. You must be satifsfied that the killing of 0. was the only means of escape from the danger mentioned. Jf O.'s life was taken after the appearance of danger disappeared, the claim of self-defense must not be allowed. Although 0. may have been the aggressor, although he may have begun the shooting, yet, if you find that the danger of death, or of great bodily harm from 0. could have been escaped from-, could have been avoided, without taking his life, the prisoner can not shelter himself behind the law of self-defense ; it is no defense in such case, 6. You must be satisfied that they M^ere without blame, with- out fault. The law of self-defense does not imply the right of attack, nor does it permit a man to kill another for revenge.'* 1 Erwin v. State, 29 O. R. 187. 2 Marts V. State, 26 0. S. 102; Darling t\ Williams, 35 O. S. ;")!). 3D. F. Piiprli, J.. State r. Elliott. Approved hy Sup. Court. Sec. 1875. When a person may take the life of an assailant in self-defense — A different form — Giddings case. It is a part of the law of this state, as well as of otber states and countries, that, und(!r certain defined circumstances, a per- 1648 INSTRUCTIONS TO JURY, son may, in self-defense of his own life, or to avoid great bodily harm, take the life of an assailant. And when this right is legitimately exercised, the homicide so committed, whether justi- fiable or excusable, according to the distinction at common law, it not an unlawful taking of life; and is, therefore, neither murder nor manslaughter. This right constitutes the boundary line between manslaughter and a lawful homicide. It is generally agreed that the right of self-defense is founded in nature and is one of the rights not surrendered to society according to the theory of the social compact. But in a state of society it is necessarily so far modified by the laws as to be limited to the cases where it would result in imminent danger to life, or of great bodily harm, if the only remedy of the peace- able and well-disposed citizen lay in an appeal to the laws, or the strong arm of the state. If the exercise of the right were not thus restricted, violence would beget violence, and there would be an end of civil government. There must, however, be imminent danger to life or of great bodily harm, before the taking of life in self-defense can be resorted to by anyone in any case. But reason .suggests and the law makes a distinction between the case of a person driven to the necessity of taking life in self-defense in a conflict provoked and incited by his own wrong, and that of one reduced to such necessity in a conflict that was neither sought nor provoked by him. In the case ivheji a party assaulted is in the wrong, he must, before taking the life of his assailant to save his own life or to avoid great bodily injury, flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault will permit, for it may be so fierce as not to allow hifti to yield a step without manifest danger to his life or great bodily harm, and then, in his defense, he may kill his assailant instantly.^ But in a case where the assailed party is not in the wrong, neither provoked nor incited the conflict, and was assailed while in the pursuit of his lawful business, he may, without retreating HOMICIDE — MURDER AND MANSLAUGHTER, 1649 a step, kill his assailant if necessary to protect his own life, or to avoid grievous bodily harm. The danger must in either case be actual or apparent, and the party killing must have honestly believed that he was in danger of losing his own life, or of suffering some great bodily harm, before killing his assailant. And it is not enough that the party killing honestly believed that there was imminent danger to himself, the circumstances must have been such as would have afforded a reasonable ground for such belief. Of this the jury must judge from the circumstances as developed by the testi- mony. If the appearances were such as would have alarmed a man of ordinary firmness, and have impressed him that such danger was imminent ; and if the assailed party honestly believed such to be the case, it is not material whether the danger was real or not. Thus, to make the application to this case, if you should find that the deceased threatened to kill the defendant, and, suiting his act to his word, hastily reached with his right hand to his hip-pocket, as if to draw and use a deadly weapon, and that tlie defendant, as would any man of ordinary firmness, then honestly believed that the deceased intended to instantly kill or seriously wound him, in such case it is not material to the defendant's right of self-defense whether, as a matter of fact, the deceased had or had not a weapon. If, when violently assaulted, a party were required to act at his peril in judging wliether there was real ground for appre- hending imminent danger, before resorting to such measures as the circumstance seemed to require for his safety and protection, it might be as hazardous to defend himself in the first instance as to risk the ultimate result of what {appeared to be a violent and malicious assault upon his person and life; and he might escape from what appeared to be the imminent danger to be tried and condemned as a man-slayer, where, had the facts been what the circumstances indicated, he would be excused. - iStoffer V. Rtato, l.T 0. S. 47. zThad. A. Minshall. J., in tlie Giddings trial, 29 O. S. 187, 26 0. S. 162, 3r) 0. S. 59. 1650 INSTRUCTIONS TO JURY. Sec. 1876. Right to repel assault. "If the defendant and his co-defendants were in the exercise of their lawful rights in passing along the streets at the time of the conflict wherein one was killed, and neither of the accused parties began the affray or attack, then the defendant and those accused with him had the right to repel the assault with such force as was necessary to do so, and had a right to defend them- selves from danger to life or great bodily harm ; and if they were suddenly assailed or surrounded by superior numbers armed with weapons dangerous to life, or calculated to do great bodily harm, the defendants had a right to stand on their de- fense, to repel force by force, even to the taking of life, if they believed and had reasonable grounds to believe that it was necessary to do so to prevent either death or great bodily harm to themselves, and if necessary they may use such weapons as will accomplish the purpose."^ 1 From Goins v. State, 46 O. S. 457. Sec. 1877. Son may defend parent. A son has the right to commit an assault in the defense of his mother, if the mother be not in the wrong. If at the time a son does commit an assault in the defense of his mother while she is using such means as are necesary to repel an assailant from entering her home, or to prevent such person from forcibly entering her home, such assault, if so made by the son, where he, in the careful and proper use of his faculties, in good faith believes and has reasonable ground to believe that his mother is in imminent danger of great bodily harm, and that her only means of escape from such danger will be by the son taking the life of such person, the son does not thereby commit an unlawful act, even though in fact the son be mistaken as to the existence or imminence of the danger. So, in this case, if you are satis- fied from the evidence that the defendant, M. M., was assaulting the deceased to prevent him from entering her home forcibly and against her will, and that during the time of such conflict HOMICIDE — MURDER AND MANSLAUGHTER. 1651 the defendant, S. JM., in the careful and proper use of his facul- ties, in good faith believed and had reasonable ground to believe that M. M. was in iinminent danger of great bodily harm, and that her only means of escape from such danger was by com- mitting the assault that he did commit, then S. M. is guilty of neither murder nor manslaughter, and as to him, your verdict must be accordingly, even though S. M. was in fact mistaken as to the existence or imminence of such danger to his mother. But you must be satisfied that S. ]\I. believed in good faith that M. M. was in danger of great bodily harm from the decedent, there must have been reasonable grounds for believing that there M-as such danger, and that belief must have been honest and sincere ; the bare belief is not sufficient ; and he must have acted under the influence of such belief alone. And in deter- mining whether there were such reasonable grounds for the belief, you should, as nearly as possible, according as disclosed by the evidence, put yourself in their position, wath their physical and mental equipments, surrounded with the circum- stances with which they were surrounded. Does the evidence show that he had such reasonable grounds for believing that the deceased was about to do her great bodily harm? Consider the evidence as to the conduct of the parties at the time and immediately previous to the acts which resulted in the death of the decedent.^ 1 Melhorn, J., in State v. Miner. The killing of a person in defense of those standing in the relation of husbamd and wife, parent and child, etc., ia regarded in law aa the act of the person defended, and is excused to the same extent as if in fact committed by him. Clark's Cr. L., I.')?, and cases cited; 1 Bishop's Crim. Law, sec. 877. Sec. 1878. Justifiable homicide. Homicide is justifiable on the grounds of self-defense when the slayer, in the careful and proper use of his faculties bo)m fide, believes and lias reasonable ground to believe that he or his family is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by tab'ng the life of the assailant, although in fact he is mistaken 1652 INSTRUCTIONS TO JURY. as to the extent or imminence of the danger ; and where one is assaulted in his own home, or the house itself attacked, he may use such means as are necessary to repel the assailant, or to prevent his forcible entry or material injury to his home, even to the taking of life. But a homicide in such a case would not be justified unless the slayer, in the careful and proper use of his faculties, in good faith believes and has reasonable ground to believe that the killing is necessary to repel the assault or prevent his forcible entry.^ 1 Melhorn, J., in State v. Mary Miner, et al. Defense of self or home. State V. Peacock, 40 O. S. 333. Sec. 1879. Common defense from attack. "If the only purpose made known to the defendant prior to the killing of the deceased, and the only one contemplated or entered upon by him, was a defense of himself and companions from an attack by a party of men superior in numbers and strength which had been threatened, and neither the defendant nor his comrades were to be aggressors or attack the opposing party, then such common purpose of defense merely was not unlawful and criminal."^ 1 From Coins v. State, 46 0. S. 4.57. Sec. 1880. Evidence of previous character ajid reputation in homicide. The defendant has placed his previous character and repu- tation as to being a man of peace and quiet in evidence. If you find that previous to this difficulty he sustained a good reputation for peace and quiet, you will weigh it in his favor for what you, in your honest judgments, may think it is worth. Where the question to be determined by you may be close, it should be sufficient to turn the scale in his favor. It not only sheds light upon the subject of inquiry, but it is also admitted as a rule of public policy, as a reward held forth Iw the law to those who. by conformity to its commands, estab- lish characters for peace and quiet. Where one who has estab- HOMICroE MURDER AND MANSLAUGHTER. 1653 lislied such a character hy his conduct as a good citizen may use it in repelling the charge of crime, he will also be the more careful not only to form it, but also to retain it. It is, however, only a circumstance favorable to his innocence. As a general rule, a man's character for anything is the outgrowth of what he is, and if by his conduct and deportment among his fellows he has earned the reputation of being a man of peace and quiet, it affords grounds for believing that he is Avhat, by his conduct, he seems to be ; and the impartial mind is the less ready to con- clude that such a one has acted contrary to what may seem to be a law of his life. The weight to be given to the hitherto good character of the defendant for peace and quiet must be such as the jury, under all the circumstances, think it should receive. It is very rele- vant to, and of much weight upon the question of malice ; for the existence of such a character can not consist with the ele- ment of malice until it has been uprooted and destroyed. It is also quite relevant to the question whether the defendant, in committing the homicide, acted in self-defense ; for here, again, he could not, without honestly believing that he was in imminent danger of great bodily harm or loss of life, have taken the life of his fellow if he was by habit a peaceful and quiet man.^ 1 Thad. A. Minsliall, J., in the Giddings case. CHAPTER CYIII. INSANITY. SEC. SEC. 1881. Insanity — A comprehensive 1883. Insanity as a defense. presentation. 1S84. Burden of proving insanity. 1882. Insanity defined. Sec. 1881. Insanity — A comprehensive presentation. 1. Medical insanity. 2. Legal tests. The state has no interest in the conviction and punishment of an irresponsible person, and those taking part in the admin- istration of justice have no desire to visit the penalty of the law upon such a person ; it would afford no example to others, nor would it deter others from the commission of a crime. On the other hand, the state is zealous that no mistakes shall be made on the side of mercy which will defeat justice and detract from the majesty of the law. In the administration of the law difficulty is encountered in dealing with the subject of insanity, which is due to the imper- fect knowledge upon the subject among medical men, lawyers, courts, jurors and men in general. In medical science different shades and degrees or kinds of insanity are recognized, such as temporary or emotional insanity, impulsive insanity, homi- cidal insanity, irresistible impulse, and others. Medical men sometimes express regret that courts do not recognize the degrees of irresponsibility adopted in medical science. The law does not so recognize them. Medical insanity, so called, can not be said to be legal insanity.^ The law has adopted what seems to be the true tests for determining the legal responsibility of one charged with crime, and it is a matter for the sole determina- tion by the jury. The law proceeds upon the theory that a 1 7 N. P. 547, 5 C. C. 74, 22 0. S. 90. 1654 INSANITY. 1655 man having intellect and reason may control and keep within prescribed bounds any natural instinct or propensity of whicli they may be possessed; and when they do not do so, and liy their conduct and acts infringe upon some law, the inquiry by the jury, whose sole province it is to determine the mental re- sponsibility when it is brought in question, may be along two lines. The jury will endeavor to discover from the proof whicli is laid before it, whether the brain of the accused was, at the time of the commission of the act charged as criminal, so dis- ordered in its functions as to destroy the power to control the mind or will and his acts. The jury will determine whether the accused, instead of having a diseased l)rain, was actuated by excitement, or highly nervous conditions from worry, or by passions and angered feelings, or revenge, produced by motives of anger, hatred or revenge. If the alleged insanity does not appear by the evidence to be of a marked character, and is set up as a defense to a charge of murder, it is incumbent upon the jury to move with caution, and carefully weigh every cir- cumstance that may shed any light upon the question. In de- termining whether the defendant was insane at the time of the alleged killing of A., the jury may consider all his acts at the time of, before, and since the alleged commission of the act, as such acts and conduct have been shown by the evidence, and the jury have the right to consider the defendant's appearance and actions during the trial as a circumstance in determining the insanity at the time of the alleged homicide.^ The law permits men and women who have known the accused and who have had opportunity to learn of and observe the acts, conduct, and appearance of the accused, upon first giving their testimony as to these matters, to then give you the benefit of their opinion as to the mental condition of the accused, based upon such facts. Testimony of physicians, men specially learned in the dis- eases of the mind, have been called to give their opinions based upon their observation of and knowledge of acts, appearance and eonduct of the defendant. This you are to consider with all the other evidence offered on the subject. 1656 INSTRUCTIONS TO JURY. The jury may also consider the testimony as to the mental condition of the ancestry of the defendant. In a word, all the testimony which the court admitted to be carefully considered and weighed by you, and the mental condition of the defendant at the time of the commission of the act charged in the indict- ment determined therefrom. A sane man is one whose senses bear truthful evidence ; whose understanding is capable of receiving that evidence ; whose reason can draw proper conclusions from the truthful evidence thus received; whose will can guide the right and wrong grow- ing out of that thought ; whose mental sense can determine the right and wrong growing out of that thought ; and whose act, at his own pleasure, be in conformity to all these. A person who is possessed with the power to determine the right and wrong so far as it relates to his duty, under the con- ditions and circumstances of the transaction giving rise to the question of his duty from Avhich his sanity arises as a question for determination, and who has the power of will to enable him to pursue right and to reject the wrong, is to be regarded as a rational being. One who is without these faculties of the mind and power of the will, is not to be regarded as a rational being, and may not in law be held responsible for what he does. Insanity means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or not conscious at the time of the nature of the act which he is committing; and where, though conscious of it, and able to distinguish be- tween right and wrong, and knowing that the act is wrong, yet his will — by which is meant the governing power of his mind — has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control. - The jury will bear in mind in the consideration of this ques- tion the statement heretofore made to the effect that medical insanity is not legal insanity. The court makes the further suggestion in this connection that the law permits and requires that you apply all tests whether coming from medical science INSANITY. 1657 or medical aid, or from the testimony of those who have testified in this case, in determining upon the sanity of the defendant. The lack of certainty and of definite knowledge of the sub- ject of insanity has prompted the law to adopt the rule of evi- dence that the insanity must be shown by a preponderance of the evidence. The real test of legal responsibility, sanctioned by the high judicial authority, is whether at the time of the homicide the brain of the defendant was partially deranged or diseased from some cause, whether such disease or derangement had taken charge of his brain, and had so impelled it that for the time being his will power, judgment, reflection and control of his mental faculties were so impaired that the act done was the result of an impulse which a diseased or deranged mind was unable for the time to control. If the jury believe from the evidence that there was at the time of the commission of the act charged, that there was at the time some excitement of the mind of the defendant which prompted some unpremeditated action or some spontaneous inclination to do the act, which you believe from the evidence to have arisen from some outer influ- ence of mental derangement, and not directly from feelings of passion, anger and revenge of a sane mind, and which the mind of the defendant could not and did not successfully resist and control, tlicn the jury may find the defendant not guilty of the crime and may render a verdict of not guilty. If you find, according to the requisite degree of evidence, that at the time of the act, the mind of the defendant was not acting under the influence of some outer influence of mental derange- ment, but, on the other hand, that his mind was operating under the influence of feelings of passion, anger and revenge, and not mental derangement, you may in such event arrive at the con- clusion that he was sane, and proceed with the further investi- gation of the questions involved. You are not required to decide whether or not the defendant is insane at the present time.' Finally, gentlemen, on this subject, the question of the insanity of the defendant has exclusive reference to the act with which 1658 INSTRUCTIONS TO JURY. he is charged and the time of the commission of the same. If he was sane at the time of the commission of the act, he is punishable by law. If he was insane at the time of the com- mission of the act, he is entitled to be acquitted. A safe and reasonable test is that whenever it shall appear from all the evidence that at the time of committing the act the defendant was sane, he will be amenable to the law. Whether the insanity be general or partial, whether continuous or periodical, accord- ing to terms in medical science, the law" recognizing only mental irresponsibility at the time of the act, it must be made to appear to the jury that the mental unsoundness controlled the will of the accused at the time of the commission of the act.^ If upon due consideration of the evidence on the question of insanity you are of the opinion that the defendant was sane at the time of the commission of the act charged against him in the indictment, you will then proceed to the further con- sideration of the issues presented by the pleading of not guilty.^ 1 Sackett Instrs,, sec. 2572, 125 Cal. 489. 2 Lowe V. State, 118 Wis. 641: Dans v. United States, 165 U. S. 373. 3 135 Cal. 489. 4Hotema v. United States, 186 U. S. 413; Sackett Inst., sec. 2570, E State V. Cly, Franklin Co. Com .Pleas, Kinkead, J. Sec. 1882. Insanity defined. Insanity has been defined to be a disease of the mind ; a dis- ease of the organ that thinks, but what is mind? What is the organ that thinks? It is the subtle essence which is not cog- nizant to the senses of the outsider or the observer. It can not be subjected to analysis as long as it is living. It can not be inspected by either lens or microscope, or measured by any instruments. ' ' The molecular changes which accompany thought cease at death," and while living, the physical functions of the brain can only be guessed at. It has been claimed that insanity is such a derangem3nt of the mental faculties of the person whose sanity is in question that he is unable to reason cor- rectly. But it differs so much in kind and degree that medical science has never been able to formulate a definition precise DsrsANrrT. 1659 enough to be useful in the varying circumstances of each indi- vidual case. Medical men whose labors and studies are in the line of mental disorders do not agree upon a definition of insanity, or as to the existence of it in any particular case. Dr. Hammond, in his work of Diseases of the Nervous System, defines insanity to be: "A manifestation of disease of the mind characterized by a general or partial derangement of one or more of the faculties of the mind, and in which, while conscious- ness is not abolished, mental freedom is perverted, weakened, or destroyed." This is too abstract and general for practical purposes. Wliat we want is a working definition, a legal defini- tion, a definition that will aid us in forming a careful judgment in this case. The law supplies that want. The law's definition of insanity, however, does not harmonize with the conclusions of medical science. The observations and language of another judge which are apropos in this proceeding: "On both sides of an invisible line are multitudes of cases' where it is impos- sible to say with confidence whether the mind is sane or insane. But when the question of responsibility is presented to a court there is an imperative necessity for deciding, and the further necessity of deciding it by rule. An arbitrary line, if none can be discovered, must be drawn. It must be drawn so as to Ixi certain, comprehensible, and broad; certain enough for the con- duct of life; comprehensive enough to be clearly explained to a jury of twelve plain men ; and broad enough to cover many cases without confusing unskilled minds witli minute distinc- tions. The refinements of medical science must be pretermitted. The first necessity in the administration of justice must ])e con- sidered, and that is the safety of the community, the protection of the greater and more valuable portion of the community who are not insane. A rule must be laid down whicli will not have the effect of letting criminals escape puiiisluncrit througli the bcnvilderment of juries. Tenderness to the weak, however com- iiiendabh' in itself, is not to be so stretclu'd as to endanger the lives or even the property of the public." These are some of 1660 INSTRUCTIONS TO JURY. the reasons which inspired and made a legal definition of insanity a virtue of necessity and a dictate of wisdom.^ 1 Pugli, J., in State v. Kalb, Franklin Co. Com. Pleas. For interesting cases defining insanity, see Com v. Rogers, 7 Mete. 500; McNagh- ten's case, 10 C. & F. 200; State v. Felter, 25 la. 68; Parsons v. State, 81 Ala. 577 (good case collecting cases) ; Dunn v. People, 109 111. 635; Guiteau's case, 10 Fed. 161. Must be proved by a preponderance of the evidence and not merely creating a doubt, 12 O. 483, 2 0. S. 54, 10 0. S. 598, 23 0. S. 349, 31 O. S. Ill, 4 C. C. 101. A very instructive opinion on insanity is Clark v. State, 12 Ohio, 483, and Judge Birchard's instruction on page 495 of the report is a very good one to follow. Sec. 1883. Insanity as a defense. It is a well-understood rule of law that an insane pei'son can not be convicted of a crime. The state has no interest in the conviction of an unresponsible person; it Avould offer no ex- ample to others, nor would it deter others from committing a crime any more than it would the pimishment of a dumb brute. By reason of a lack of knowledge by men of science, as well as the legal fraternity, there is great difficulty in defining insanity in language which vnW include any and all cases. When insanity of a person is not of a marked character, and is set up as a defense to a charge of murder, courts and jury must move with caution, and carefully weigh every circumstance that may shed any light upon the question. It is conceded by the physicians that there is a form of mental disease called transitory insanity. It is said that it may be superinduced in various ways, and is more likely to occur in persons of a highly nervous tempera- ment. The perplexing question in regard to what may be termed transitory insanity is, that the subject may, as is said, be sane up to the moment of committing, and immediately after com- mitting a crime. Wliether sucli a form of insanity exists is a question of fact and not of law. It is a question which the jury must determine from the evidence, by the testimony of physicians of great experience in medical science, and those in particular who have devoted themselves to mental pathology, or diseases of INSANITY. 1661 the mind. For it is an old maxim that credit is to be given to everyone for the knowledge he possesses in the practice of his own art. A sane man is one whose senses bear truthful evidence ; whose understanding is capable of receiving that evidence ; whose rea- son can draw proper conclusions from the truthful evidence thus received ; whose Avill can guide the thought thus obtained ; whose moral sense can determine the right from the wrong grow- ing out of that thought, and whose act can, at his own pleasure, be in conformity to all these. One not possessed of these facul- ties is not a sane man. Hence the power to determine the right from the wrong in a given case, not in the abstract, but as applied to the particular par^s and circumstances of that case, the case in which his sanity arises as a question for determination, together with the power of will, adequate to accept the right and reject the wrong, is a test of sanity or insanity. One possessed of such faculties of the mind and power to determine and control his acts is a rational being, a free agent, a responsible subject of the law. One without these faculties of mind and power of will is not a rational being, and is not responsible for what he does. Courts in the main, judge of th(> mental condition of a man from the external indicia of the mind. in which they are consistent with all the analogies of the law of evidence. Then if you find, by a preponderance of proof, that at the time the defendant shot and killed the deceased he was laboring under some mental infirmity, rendering him incapable of deter- mining that it would be wrong to take the life of the deceased because he had been the occasion of his domestic troubles, that his duty to his fellowman required that he should abstain from RO doing, that he would be punished by the laws if he killed him under such circumstancas, and slew the deceased from the un- controllable impulse of his mental disorder, without power or reason or will to see that it was wrong and abstain from doing it, not from the impulse of passion excited from his domestic 1662 INSTRUCTIONS TO JURY. troubles, wth which the deceased had been connected, then you should acquit him. On the contrary, if you find that he did not know that it was wrong and punishable by the law, if he could have restrained himself, if it was not the impulse of his mental disorder, if it was the impulse of the passion of anger, or a feeling of malice excited by the wrongs he had suffered from the conduct of the deceased, then he was legally responsible; and if he intention- ally killed W. he was guilty of manslaughter, if not more, unless he killed him in the lawful exercise of the right of self-defense. All persons arrived at the usual years of discretion are pre- sumed sane and accountable for what they do. And when it is claimed that a party charged with crime is not sane he is not amenable to the law for what he does, the burden is placed on the defense by a preponderance of the evi- dence to establish this to the jury. And if this is not done the defense is to be rejected.^ 1 Thad. A. Minsliall, J., in the Giddings trial. Sec. 1884. Burden of proving insanity. "To defeat the legal presumption of sanity, which meets the defense of insanity at the threshold, the burden of establishing mental alienation of the accused affirmatively rests upon tlie accused."^ 1 From Bergin v. The State, 31 O. S. 111. This has long been the rule in Ohio as shown by the following cases: Clark v. State, 12 O. 483; Leoffner v. The State, 10 O. S. 599; Silvus v. State, 22 O. S. 90; Bond V. The State, 23 0. S. 349 ; Weaver v. The Stata, 24 0. S. 584. CHAPTER CIX. INSURANCE— FIRE, ACCIDENT, LIFE. SEC. 1885. 1886. 1887. 1888. 1889. 1890. 1891. SEC. Burden on plaintiff to prove 1892. loss — Proof of loss — Or waiver of provision by 1893. defendant. Waiver of proofs of loss — 1894. Burden of proving au- authority of agent on plaintiff. Conditions as to time of 1895. proof of loss, and proof 1896. — When right to sue ac- crues — What is sufficient 1897. notice. Waiver of proofs of loss may be inferred from acts of company — Mere silence, 1898. nor sending agents to in- 1899. vestigate, nor attempt to compromise, will not 1900. amount to waiver — What other acts in connection therewith will. 1901. Proof of loss — If policy of in- surance destroyed it is duty of company to fur- 1902. nish copy of information — Failure on its part 190.'?. may estop the company from claiming proofs not 1904. in time. 1905. Burden of proof in action for loss by fire — Proofs of 1900. loss. Insurance of partnership property — Was partner- ship dissolved at time in- 1907. surance issued — Repre- sentation as to ownership of property. ^'acancy of property — Breach of condition as to. When is a building vacant or unoccupied. Vacancy — Waiver of forfeit- ure by reason of vacancy of premises — Burden of proof. Total or partial loss. Compromise of loss obtained under duress. Evidence as to value of prop- erty as reflecting on charge of destroying property. Cancellation of policy. Rescission — Necessary party to suit for. Defense of false representa- tion as to value of prop- erty — Burden of proof. Defense when fraudulent con- cealments or representa- tions were made. False representations as to otlier insurance. Sanu' continued — Return of jiromium. Fraudulent j)roofs of loss. Fire insurance — Ownership of property. Fire Insurance — Defense as to provision n'(|uiring pro- duction of books for ex- amination. Defense that large (|iiaiititiea of oil and petroleum were stored, and drawn at night in violation of policy. 1663 1664 INSTRUCTIONS TO JURY. SEC. SEC. 1008. Defense that fire was caused 1912. Consideration — Adequacy or by willful act or procure- sufficiency not inquired ment. into. 1909. Insurance on steamboat — Neg- 1913. Insurance — Application — ligence of owner's agent Statements how treated. — Seaworthiness of boat. 1914. Insurance — Life — Misrepre- 1910. Accident insurance — Proof of sentation by insured. claim. 1915. Same continued — Wliat con- 1911. Accident insurance — What stitutes waiver of mis- necessary to recovery for representations. death upon. 1916. Concealment of material fact concerning insurance, or subject thereof. Sec. 1885. Burden en plaintiff to prove loss — Proofs of loss — Or waiver of provisions by defendant. The burden is upon the plaintiff, in order to entitle her to recover here, first, to establish by a preponderance of the evi- dence that this property destroyed by fire was not excepted by any of the provisions of this policy of insurance upon which she predicates her action, and to establish the amount of her loss by reason thereof, and that within the time provided by the policy she furnished to the company or its authorized agent proofs of loss, as required by the policy, or that that provision of the policy was waived by the company or its authorized agent, or by either ; or by the act of its authorized agent she was pre- vented from thus complying with the conditions of the policy. These are the propositions that the plaintiff must maintain to entitle her to recover, and she must maintain these propositions by a preponderance of all the testimony in the case. Look into the testimony and conditions of this policy and ascertain whether or not the loss and damage by fire was one that was not excepted by this policy; if not, then your next inquiry will be, did she, at the time required by this policy, furnish to this company, or its authorized agent, proofs of lass such as are required by that condition of the policy; if she did not, was that provision of the policy required on her part to be complied with waived by the company or any of its authorized INSURANCE — FIRE, ACCIDENT, LIFE. 1665 agents? If not, was she by the act of the company, or its au- thorized agents, prevented from complying with it and furnish- ing to the company ^vithin the specified time such proofs of loss? Sec. 1886. Waiver of proofs of loss — Burden of proving au- thority of agent on plaintiff — Instructions as to waiver of conditions — By agent. It is admitted in the pleadings and admitted in the trial that the proofs of loss were not furnished within the time specified in the policy. The plaintiff seeks to avoid the effect of failing to comply with this condition of the policy by showing that it was waived by the company, or by its agent, or that the de- fendant company, or its agent, prevented her by their conduct from thus furnishing proofs of loss. Now, I say to you, gentle- men, that that provision of the policy can be waived after a fire — after a loss — by the company by its president, or officer, or any agent authorized to act for and represent it, no matter what he may be designated, w^hether adjuster, or solicitor, or what not, it depends upon his power to represent the company in the insurance business whether or not he has authority to waive that provision of the policy. And if the agent has general authority to make contracts of insurance, to fill out and issue policies, to collect premiums, and to represent the company in its business of prosecuting the insurance business, he has power to repre- sent it in all matters incident thereto. And if you should find from the testimony that the agent, S., had authority to repre- sent the company here in the transaction of its business as an insurance company, the procuring of insurance, the filling out and issuing or policies, making contracts of insurance, and the (collection and handling of its moneys, he had power to represent the company in waiving the provisions of tlie contract thus made by him. Tlie ])urden of establishing this authority of this agent is upon the plaintiff, and if you should find he was thus author- ized, then you will look into the testimony and determine whether or not he did waive the performance of this provision of this contract within the fifteen days. If he did not do it 1666 INSTRUCTIONS TO JURY. by express terms, did he by Ms act and conduct lead the plaintiff to understand, by what he said and what he did, that a strict compliance with that provision of this policy was waived and would not be insisted upon? Or did the adjuster, having au- thority to adjust and settle these losses, lead her by his conduct and declarations to understand that a strict performance of that provision of the policy would not be required?^ J From United Fireman's Ins. Co. v. Kukral, Supreme Court, unreported, No. 1699 (13-161). Judgment of circuit court affirmed, 31 VV. L. B. 233. Waiver. — There is a waiver if the company notify the insured that they will pay in any event, 2 C. S. C. R. 186. Investigation without waiting for proofs is a waiver, 2 Am. L. Rec. 336. Waiver may be after as well as before the time stipulated for presenting proofs, 7 C. C. 356. If an agent tells the assured, after an examina- tion of the loss, that "nothing further is required," it is a waiver of the preliminary proofs of loss, even though there is a clause providing that no agent has power to waive any condition. Bish V. Hawkeye Ins. Co., 69 la. 184. If an agent authorized to settle a loss induces the assured to forbear bringing suit, the company waives the limitation. Stevens v. Citizen's Ins. Co., 69 la. 6.58. The requirements of a policy that proofs of loss shall be given as soon as possible, may be Avaived by the insurer's conduct and nego- tiations. Dohn V. Farmer's Joint Stock Ins. Co., 6 Lansing, 275. Evidence that the person who solicited insurance used language to the insured which might have induced liim to postpone making and forwarding the proofs within the time limited, was evidence to sustain a waiver of the condition. Norton v. Renssalaer Ins. Co., 7 Cow. 645. The adjuster may waive proofs. Aetna Ins. Co. V. Shyer, et al., 85 Ind. 362. The adjuster may waive and if he places the refusal to pay loss wholly upon other grounds, it is a waiver of the right to defend a suit on the ground tliat such proofs were not made. Eggleston v. The Council Bluff Ins. Co., 65 la. 308. The company may waive proofs, and proofs may then be made in the prescribed time after the waiver, where it is shown that the insured, without any fault or fraud on his part, is unable to procure certain of the proofs of loss required by the policy of insurance, he may recover without a literal compliance with the proofs of the policy in this respect, for the law will not require an impossible thing. As to waiver by act of agent in furnishing blanks for proofs, see 88 Pa. St. 230, 13 Phila. 551. The fire insurance company received and retained proofs of loss without objection, and they were twice asked in writing to inform the insured if it wished for any further statement made: no reply. Held, that the insurance company waived the defense. Grange INSURANCE — FIRE, ACCmENT, LIFE. 1667 Mill Co. V. Western Ins. Co., 118 Til. 3!)G; Continental Life Ins. Co. i\ Rogers, 119 111. 479. Proofs of loss, or objection to the form of proof, is waived when the company bases its refusal to pay on otlier grounds. Hartford Protection Ins. Co. v. Marmer. 2 O. S. 452. Objections to the preliminary proofs will be considered as waived, if. after they are rendered, no specific objections are pointed out, and the assured is informed that his claim will be considered on the merits, and a claim is rejected, finally, upon the grounds that the company is not, in any event, liable to pay the loss. The Globe Ins. Co. v. Boyle, et al., 21 O. S. 130. gee. 1887. Conditions as to time of proof of loss— And proof —When right to sue accrues — What is a sufficient notice — Notice and proof of loss — Waiver of — How made. After reciting the substance of the conditions, proceed : These conditions are binding upon the plaintiff, and it can not recover unless it has shoAMi that it performed them, or has shown waiver of such performance on their part by the defend- ant. The notice and proof of loss must be furnished or waived, too, for sixty days, before the insured is entitled to payment or has a right to bring a suit for the same. If the insured brings suit vnthin the sixty days, he must fail, except in the event of the company denying all liability on the policy. In the latter event an action may be commenced without waiting the time limited — sixty days.^ Waiver of proof of loss does not make the claim due at once; the company would still be entitled to the sixty days after the waiver to investigate, and for such other purposes as it might want the time for, except as stated— it notifies the insured that it will not pay in any event. In the latter event, the condition that no action be brought within sixty days after proofs of loss is deemed waived. So also a denial of all liability, made after inquiring into the loss, on the gronnfl \hi\t the loss is not within, the policy, or that the policy is void is a waiver of the clause rcHiuiring proofs of loss. A notice of the loss given iinmcdintcly niter the fire, or as soon thereafter as it can be done with reasonable diligence, to 1668 INSTRUCTIONS TO JURY. the agent of the company at the place where the fire occurred, or with such diligence causing notice of the loss to be brought to the knowledge of the company, is a sufficient compliance with the condition requiring notice of the loss to be given to the company/ ] Bliss, Life Ins., sec. 355-8; Wool, Ins., page 728. Sec. 1888. Waiver of proofs may be inferred from acts of company — Mere silence, nor sending agents to investigate, nor attempt to compromise will not amount to waiver — What other acts in connection therewith will. "The requirement of preliminary proofs of loss is a formal condition inserted in the policy solely for the benefit of the insurer. That such proofs may be waived, in whole or in part, is well settled as a legal proposition. The w^aiver may be by the direct action of the insurer, or by his general agent by virtue of his authority. The waiver may be express, or it may be inferred from the denial of obligation by the insurer exclusively for other reasons."^ A waiver may be inferred from the acts and declarations of the company, or of its authorized agents acting within the scope of their employment. The adjuster, employed by the defendant to act for it in the matter, was the agent of the company, and all he did in the matter within the scope and line of his employment and duties as such adjuster were the acts of the company and binding upon it. ]\Iere silence on the part of the company will not amount to a waiver of proof of loss ; nor would the sending of agents to make inquiry or investigation into the matter of the loss; nor would even an attempt to compromise the matter, either or all of them, in themselves amount to a waiver of proofs of loss, provided nothing was done while so engaged that Avould cause a man of ordinary judgment and discretion to believe that formal proofs of loss were waived. But if such agent or agents, while so engaged, act in the matter so as to cause the INSURANCE FIRE, ACCIDENT, LITE. 1669 insured to believe that proofs of loss are waived, and their acts are such as would have caused a man of ordinarj^ discre- tion and judgment to so believe, and the insured, by reason thereof, refrain from making such proof, such acts will amount to a waiver of such proof. If the companj', by its adjuster or agent, proceeds to investigate the matter of the loss on its merits, and by what it does causes the insured to believe, and a man of ordinary judgment under the circumstances would have so believed, that it is only the amount of the loss that is in dispute, and nothing else, between the parties, that will amount to a waiver of proofs of loss. So, as said, an abso- lute refusal to pay on the merits of the claim or a denial of liability to pay in any event will amount to a waiver. The company must not by its acts, or by the acts of its agents acting A^dthin the line of their duties and authority as such agents, do anything that will throw the insured off his guard and cause him to believe that proofs of loss are not wanted by the company. If such acts are such as would cause a man of ordinary judgment and discretion to so believe in like circumstances, and the insured so believed and acted on such belief, the company will be held to have waived such proofs. And if the company waived such proofs, it can not after- wards recall or reclaim such waiver, and demand or insist upon such proofs. If once waived, the company can not afterwards insist upon the performance of the condition requiring such proof. From the fact, if a fact, that the company sent an agent to the place of the loss to make investigation in regard to the same, and from what the evidence may show, if anything, he did about making such investigation; from tlie fact, if a fact, that the company sent an adjuster to adjust such loss, and from all such adjuster did in regard to the matter; from the fact that the plaintiff and defendants, on , pursuant to the condition in the policy — set out in printed matter in the third defense as amended — selected two persons to ap- 1670 INSTRUCTIONS TO JURY. praise and estimate at the true cash value the damage by fire to such of said property covered by the policy as might be found in a damaged condition, as alleged in said defense; the fact of such appraisement being made and reported by such apprais- ers ; the fact, if a fact, that D. and such adjuster agreed upon the loss upon other of the property covered by the policy; from what the evidence shows was done and passed between said adjuster and D. while about the matter of attempting to adjust such loss, altogether, from all these and from all cir- cumstances disclosed by the evidence, you will determine whether or not the company waived proof of loss, the burden of proving such waiver by a preponderance of the evidence being upon the plaintiif. If so waived sixty days before suit brought, the plaintiff is entitled to a verdict if it has otherwise made out its case. If such waiver was made within sixty days before the suit was brought, the plaintiff can not recover, unless the plain- tiff proves that there was an absolute refusal by the company to pay in any event.- 1 Ins. Co. V. Parisot. 35 0. S. 40, 41. 2 Wm. E. Evans, J., in German ia Fire Insurance Co. v. Dunn & Co., supreme court, judgments affirmed, charge approved. Sec. 1889. Proof of loss— If policy of insurance destroyed it is duty of company to furnish copy or in- formation — Failure on its part may estop company from claiming proofs not in time. If you find from the testimony that the policy of insurance was destroyed by fire, and she did not have it in her power to furnish a written description, or copy of the written portion of the policy, and did not have within herself the specific direc- tions that the policy required to be complied with in that respect, and she applied to the agent of this company for the information, or for a copy of the policy thus to enable her to fulfill that condition of the policy, it was the duty of that agent, and the duty of the company, to furnish her ^\dth that informa- tion thus possessed by them and not possessed by her, and the refusal on their part to furnish her with that information, if a INSURANCE — FIRE, ACCIDENT, UFE. 1671 compliance on their part at the time she asked for it would have enabled her to furnish proof of loss within the time required hy the policy, and she was not, by reason of that refusal, able to furnish proofs of loss thus required, that would be an act upon their part which would prevent her from fur- nisliing her proofs of loss, and would estop them from setting up that defense. The rule in regard to estoppel is in substance as alleged here, and the rule in regard to waiver is simply honesty and fair dealing between the parties; what has the plaintiff a right to believe and fairly consider under all the circumstances of what was said and what was done — what had she a right to fairly believe and act upon under these circum- stances ?^ 1 From United Fireman's Ins. Co. v. Kukral, supreme court, unreported, Ko. 1099 (13-161), judgment of circuit court affirmed, 31 W. L. B. 233. Sec. 1890. Burden of proof in action for loss by fire — Proofs of loss, etc. The burden of proof of tlie material allegations of the plain- tiff's petition that are denied by the answer is upon the plain- tiff; that is to say, it being admitted, as I have told you, that the policy wa.s issued, the date, the amount of insurance, th(> property covered, the occurrence of the fire, and tliat in pay- ment of tlie loss or damage there made, it then devolves upon the plaintiff to establish by a preponderance of the evidence that notice of such fire was given by the insured immedi- ately after the occurrence, and that, as soon thereafter as pos- sible for the plaintiff to do so, the plaintiff made out and furnished to the defendants proofs of loss as required by the policy you have in force. The fact, if such you find to be the fact, that tlic i)roofs of loss were made by the plaintiff to defendant company, as pro- vided by the terms of the policy, does not relieve tlie plaintiff in the acti'm from the burden of proof by a preponderance of the evidence of the amount of the loss or damage sustained by the fire to the property insured. The proofs of loss, if you 1672 INSTRUCTIONS TO JURY. find that any were made, are simply evidence for the insured of compliance with the conditions of the policy requiring them, but not of the facts contained in the proofs of loss. Therefore it devolves upon the plaintiff to prove by a preponderance of the evidence the amount of loss or damage by reason of the fire to the said property insured, and which loss or dam- age the policy provides shall be based upon the actual cash value of the property at the time of such fire. If the plain- tiff has by a preponderance of the evidence proven these facts, then the plaintiff will be entitled to recover in such sum as the jury shall find from the evidence to be the amount of such loss or damage caused by the fire, unless the jury find by a preponderance of the evidence the existence of certain other facts, or any of them, as claimed and alleged by the defendant in his answer, and of which testimony has been offered tending to prove.^ 1 Melhorn, J., in Carnalian i'. Pcnn. Fire Insurance Co., Hancock County Common Pleas. Sec. 1891. Insurance of partnership property — Was partner- ship dissolved at time insurance issued — Representation as to ownership of property. In order to recover in this action the plaintiff must prove by a preponderance of the evidence that said D. & Co. was a partnership doing business in Ohio as alleged; and that, at the time the policy of insurance was issued and at the time the property described therein was injured or destroyed by fire, such property was owned by said partnership; that said property was injured or destroyed by fire as claimed, and the amount of such injury or loss; and that the plaintiff performed all the conditions of said policy on its part, or that the defendant waived such of the conditions as were not performed by it sixty days before bringing this action; that such of said conditions as by the terms of the policy were required to be performed sixty days before suit brought were performed, or the performance thereof was waived by the defendant sixty days before the suit was brought. INSURANCE — FIRE, ACCIDENT, UFE. 1673 The policy of insurance is the contract between the parties. The indorsement upon or attached to it, specifying how much of said $5,000, the amount named, is upon specified classes of said property, is a part of the policy. Both parties are bound by and have a right to insist upon the performance of all the t;erms and conditions of the contract of insurance — the plain- tiff as much as the defendant, and the defendant as much as the plaintiff, and either as much as an individual might do under like circumstances. (a) The plaintiff must have been, as alleged, Or partnership doing business in Ohio, and the owner of the said property. If, at the time the policy of insurance was issued the firm or partnership of D. & Co. had been dissolved and was not in existence, then the representation that the property was the property of D. & Co. would avoid the policy, and the plaintiff can not recover; * * * If it had not been dissolved before the policy was issued, or before the fire, if it was an existing partnership, and the owner of the goods, it can recover, if it has in other respects made out its case under the instructions. If D. & Co. was a partnership for the purpose only of carrying on a banking business, the fact, if a fact, that D. purchased the goods for the firm of D. & Co. in consideration for and in satisfaction of a judgment in favor of D. & Co. against the then owner thereof, without consulting C. or getting his consent thereto, did it in good faith, thinking it for the best interest of D. & Co. to do SO; and the further fact, if a fact, that he, thinking it for the best interest of D. & Co. to do so, kept the store, of which the goods in question constituted the stock, open as a going concern and sold goods therefrom for a time, will constitute no defense for the defendant in this action.' 1 Wm. E. Evans, J., in Germania Fire Insurance Co. v. Dun & Co., suprpmc oourf, JTidfrmonts afTirmcd, Fayette county. Sec. 1892. Vacancy of property — Breach of condition as to. There is a provision connected witli Ihc clause wliich reads: "Shall become vacant and unoccupied without the written 1674 INSTRUCTIONS TO JURY. assent of the company indorsed thereon." The defendant says. that this property became vacant and unoccupied, and that it was destroyed by fire while in that condition, and that that condition was not \nth the assent of the company written or indorsed upon the policy. In order to forfeit this policy under this clause, it is necessary that the premises in question should be both vacant and unoccupied. There seems to be a distinction drawn betwen ocupancy and vacancy of premises,^ but the language of this policy is such, being connected with the con- junction, and, that both occupancy and vacancy must exist, or a want of occupancy and a vacancy of the premises must exist in order to enable the defendant to avail itself of this provision of the contract. If no person is living in the building — in the premises — sleeping there, lodging there, occupying it in the usual way of a dwelling-house being occupied by persons, then it is unoccupied within the meaning of this clause of the policy. 1. What constitutes occupancy. And the having of a few articles of furniture, whether it be carpets or anything else in the house, is not such an occupancy or use of the premises as would render it not a vacant house or unoccupied dwelling- house. Therefore, if you find under the proof in this case that at the time this policy was issued it was occupied by a tenant of M. R., and that subsequently that tenant moved away from the premises, and after the tenant was gone, M. R., with a view to a future occupancy of the premises by herself, commenced making preparations for such occupancy by placing in the building a carpet or two carpets, and a chair or two, that would not relieve the plaintiff or ]\I. R. from the force and effect of this provision of the contract, providing the fire which destroyed or injured the premises occurred before anyone actually moved into the premises, or so placed therein furniture and goods that it could not be said to be vacant.- The mere intention of a party to move into premises is not an occupancy in fact of those premises. The intention to move the necessary articles for housekeeping into the premises does not constitute such an occupancy of the building by furniture and goods as to relieve it from the charge of being vacant. If you find that there INSURANCE — FIRE, ACCIDENT, LIFE. 1675 was in the building at the time of the fire substantial articles and furniture for housekeeping by a family or by one or two persons, the place would not be vacant within the meaning of this provision of the policy. But if only a portion, simply an article like a carpet or two carpets, or a chair or so was in there, if that is all or substantially all there was of it, the plans simply consisting of an intention to put other articles therein in the future and to go there and occupy the building, that would not be such an occupancy of the premises as to relieve the plaintiff from the obligations of this provision of the contract, nor would it deprive, in other words, the defendant from availing itself of this provision of the contract in case any fire occurred while the premises were in this situation and condition.^ 1 Moody V. Insurance Company, 52 O. S. 12. 2 Cf. State V. Tuttgerding, 5 W. L. B. 464. A tenant's removal perma- nently renders premises vacant, 42 0. S. 519. Leaving furniture/ all in house ready for use is not leaving it vacant, 52 O. S. 12. 3 From Hanover Fire Insurance Company v. Citizens' Savings & Loan Association. Supreme court, unreported, No. 1562. Judgments of circuit court and common pleas aflBrmed, 27 W. L. B. 216. Charge approved. Sec. 1893. When is a building- vacant or unoccupied. "Wliat constitutes vacancy or non-occupancy of a building is a question of law ; but whether a building is vacant or unoccupied or not, within the meaning of the law, is a question of fact for the ,jury.^ To constitute occupancy of a dwelling-house, it is not essential that it be continuously used by a family. The family may be absent from it for health, pleasure, business or convenience for reasonable periods, and the house will not, on that account, be considered as vacant or unoceupi(Ml. Under a policy which declares that no liability shall exist under it for loss or damage to an unoccupied building, but does not stipulate that the insured building shall be used as a dwelling, or require any par- ticular mode of occupancy. Strictly construed, occupancy for any lawful purpose would satisfy the condition and ])r('S('rv(' the oltligation of the policy. It is not in any event essential that the 1676 INSTRUCTIONS TO JURY. building be put to all the uses ordinarily made of a dwelling, or to some of those uses all the time; nor that the whole house should be subjected to that use. Nor is a dwelling-house con- sidered as unoccupied merely because it has ceased to be used as a family residence where the household goods remain ready for use and it continues to be occupied by one or more members of the family, who have access to the whole building for the purpose of caring for it, and who do care for it and make some use of it as a place of abode.- 1 Moody V. Insurance Company, 52 O. S. 12. ^ Moody V. Insurance Company, 52 O. S. 12; Insurance Company v. Kier- nan, 83 Ky. 468; Richards on Insurance, sec. 56; May on Insurance, sec. 247. Sec. 1894. Vacancy — ^Waiver of forfeiture by reason of va- cancy of premises — Burden of proof. If you find, gentlemen of the jury, that these premises were in fact vacant and unoccupied, and Mrs. R., or anyone represent- ing her, gave notice to the duly authorized agent of the defendant of that fact, and you find that the agent upon receiving that notice said ' ' all right, ' ' or words to that effect, ' ' that he would be over and see her," that would constitute a waiver of this provision of the policy forfeiting the same by reason of a vacancy and unoccupancy of the premises; in other words, it was within the power of the company to waive this provision of the policy — of its contract, and this waiver could be made by an agent of the company — could waive the enforcement of that provision of the policy, could waive its endorsement thereon, or the assent of the company endorsed thereon, and if you find from the testimony that such was the case before this fire and after this policy was issued and before the fire occurred, that notice was given in this way to the agent and he made the reply "all right," that he would be over and see about it, and the fire occurred after the notice was given and before he came to see about it, it would be a waiver of that provision of the policy and would not interfere with the right of the plaintiff to recover in this action. INSURANCE — FIRE, ACCIDENT, LIFE. 1677 On the question of the preponderance of the evidence I will say to 3^011 that the burden does rest upon the plaintiff to show the waiver. If you find that this property was vacant and unoccupied, and the fire occurred during that vacancy and unoccupancy of the building, if it is claimed a waiver of that provision was made, the burden of proof to show that waiver rests upon the plaintiff; and I will also say in this connection the burden of proof rests upon the defendant to show, and it must satisfy you by a preponderance of the evidence that this building was vacant and unoccupied at the time of the fire.^ 1 From Hanover Fire Ins. Co. v. Citizens Savings & Loan Association, supreme court, unreported, No. 1552 (12-741); judgment of circuit court and common pleas affirmed. 27 W. L. B. 216, charge approved. Sec. 1895. Total or partial loss. It is a quastion of fact for you to find from the evidence whether this was a total loss by the owner of this property, or whether it was only partial. If you find from the evidence that it was a total loss, and further find such a state of facts as prevented the defendant from availing himself of this clause of the forfeiture to which I have called your attention, or, in other words, find that it was not vacant and unoccupied when the fire took place — I say if the premises were not vacant and unoccupied, and the loss was a total loss, and no fraud was perpetrated in procuring this insurance, and no act had been done to increase the risk after the policy was issued, this plain- tiff would have the right to recover the full amount named in this policy, $ . If, however, you find that it was a partial loss only, then the plaintiff would be entitled to recover only the full value of the loss actually sustained to the building, whatever the proof may show you that loss to have been. To make this more clear, T will repeat it. If j^ou find that the building was totally destroyed, or rather a total loss by reason of this fire, and that the policy was procured without fraud, and nothing had been done with the premises after the issuing of the policy to increase the risk, and the premises were not vacant and 1678 INSTRUCTIONS TO JURY. unoccupied at the time of tlie loss, the plaintiff would be entitled to recover the full amount of the policy, which is claimed to be $ . But if you find that the loss was a partial loss and not a total loss, then the recovery would be simply the actual damage done to the property by the fire.^ 1 From Hanover Fire Ins. Co. v. Citizens Savings & Loan Association, supreme court, unreported, No. 15.52; judgments of circuit court and common pleas afBrmed, 27 W. L. B. 216, charge approved. Sec. 1896. Campromise of loss obtained under duress. The court now says to you, as a matter of law, that if you find there was a contract of compromise, and if the only con- sideration that entered into that contract of compromise was simply the settlement and adjustment of the claim in dispute between them, then that, in this case, under this evidence, this plaintiff can not recover, provided you find there was such a contract of compromise. But the court further says to you that if you find there wa.s such a contract of compromise made, and if any part of that contract or compromise was an agreement not to prosecute this plaintiff upon the charge of burning her own property, then I say to you such a contract of compromise was void and is of no force and effect as a defense in this case. But, as I said before, if it was no part of the consideration of the contract or compromise that they agreed not to prosecute her for the charged crime of arson, then I say to you the plaintiff can not recover under the evidence and law as applied in this case. Sec. 1897. Evidence as to value of property as reflecting on charge of destroying property. Evidence has been offered in this case touching upon the value of the property insured, and it is maintained by the defendant that the evidence shows that all the property, including the land upon which the buildings were situated, were not of the value for which this property was insured; on the other hand the plaintiff maintains that the property was of greater value. This INSURANCE — FIRE, ACCIDENT, LIFE. 1670 evidence was offered and bears upon the motives of the plaintiff, whether or not it would be to his interest to have this property- destroyed and thus reap a benefit by the insurance, and there- fore it is admitted for the purpose of showing what, if any, motives the plaintiff could have had for destroying this property ; would it be to the interest of this plaintiff so to do.^ iGillmer, J., in Hickox i;. Ins. Co., Trumbull County Coninion Pleas. Sec. 1898. Cancellation of policy. You are instructed that it was competent for the plaintiff and the defendant by its agent to surrender and cancel said policy or contract of insurance at any time between the date of the said policy and the date of the said loss or fire. And if you find from the evidence that the plaintiff and the defendant by its agent did agree to surrender and cancel said contract of insurance at any time between the issuance of the policy and the date of the fire, then the defendant would not be liable for any loss accruing after the surrender or cancellation of said contract policy of insurance. And before you can find that such policy or contract of insurance was surrendered by tlie plaintiff to the defendant by the mutual consent of the parties, you must find that the minds of the parties met, and that the plaintiff and defendant undertook to and did make an agreement to surrender the policy with the understanding that the same was to be canceled and of no binding force or effect thereafter. In determining whether there was a cancellation by the nuitual consent of the parties, you should look into and determine from the evidence whether it was the intention and under- standing of the parties at the time the policy was delivered by the plaintiff to the agent of the company that the same was to be canceled and surrendered and of no force and effect. Look uito and determine what was said and done between them, their conduct in relation thereto, and from it determine whether there was at that time an intention on tlie part of the plaintiff and the defendant that the contract was linn surrendered and canceled and of no further binding force. 1680 INSTRUCTIONS TO JURY. The defendant had a right by the terms of the policy of giving the plaintiff five days' notice of its intention so to do before canceling said policy without the consent of the parties ; and if you find the defendant did cancel the policy after giving the plaintiff five days' notice of its intention so to do, then such policy would not be in force and the plaintiff would not be entitled to recover herein. But before the defendant could cajicel the policy under the provisions thereof it must give the plaintiff five days' notice of its intention so to do, and must have returned to the plaintiff the unearned premium thereon, unless there was some waiver of the notice so required and of the return of said unearned premium. The plaintiff had the right to waive the five days' notice, but whether he did so is a question of fact for you to determine. * * * It is not necessary to put a written cancellation upon the policy in order to complete its cancellation. The cancellation of the policy might be made ^\dthout placing any writing thereon.^ 1 Nj'e, J., in Leonard v. Queen Ins. Co. Sec. 1899. Rescission — Necessary party to suit for. "If each policy was respectively made out on the application of a person other than plaintiff, and was made payable to such person, then such person is a necessary party to the surrender, release, or rescission of the policy issued to him or her, and if it be further found that the policy was not surrendered, released, or rescinded by such party, but continued in force and binding on the company, then the plaintiff can not recover. ' ' ^ 1 From Insurance Co. t'. Rodgers, 33 O. S. 533. Sec. 1900. Defense of false representations as to value of property — Burden of proof. It may be a difficult matter to formulate a charge that will answer in all cases where there are false representations made to procure insurance, but the following is a case of frequent INSUKANCE — FIRE, ACCIDENT, LIFE. 1681 occurrence ami is therefore given as found in the judge *s charge from which it is taken. **As a ground of defense it is alleged by the defendant that the plaintiff, in order to obtain the insurance from the defendant compan}' and other companies, to induce the defendant company to issue the policy sued on, and to take the risk equal to part of the item described in the policy, falsely and f raudulcntl}'' represented to the defendant that the plaintiff kept in his store building an average stock. of merchandise to the value of $ , and kept and carried store furniture and fixtures to the cash value of $ , and the cash value of the property in the store building was more than $ . The defendant avers that these representations Avere false, that the plaintiffs at the time they were made knew them to be false, and that they were made for the purpose of procuring an excessive insurance, and for the purpose of defrauding the insurance companies, including the defendant company. The defendant says that the real value of the property at the time the policy was issued and at all times thereafter did not exceed $ , which the plaintiff well knew, and the defendant did not know, but that the defendant, relying upon the representations and believing them to be true, was thereby induced to issue the policy which he otherwise would not have done. * * * Tq establish this defense claimed by the defendant the burden of proof is upon the defendant. It must show by a preponderance of the evidence that the plaintiff did make these representations alleged ; that they were false, and that the plaintiff at the time they were made knew tliem to be false, that the defendant did not know that they were false, and that they were made to induce the defendant to issue the policy, and, if the defendant did so satisf}'' you, the plaintiff can not recover and your verdict should be for the defendant. But if you find that the plaintiff did not make such representations, or, if made, that they were true ;ind not false or fraudulent, then this defense fails. If you find from the evidence that the defendant concurred with his co-insurers on the property insured and fixed the value of the insurance as claimed by the 1682 INSTRUCTIONS TO JURY. plaintiff, the defendant can not, under these circumstances and in the absence of any fraud on the plaintiff's part, complain of the value so fixed on the said property in so far as claiming fraud on the plaintiff's part in this respect.^ 1 Melhorn, J., in Carnahan v. Penn. Fire Ins. Co., Hancock County Com- mon Pleas. As to overvaluation, see 6 0. C. C. 1. Sec. 1901. Defense when fraudxdent concealments or misrep- resentations were made. The facts in the case from which the following^ instructions are taken appear in many such actions about as follows: ' ' That the policy provided that if the party insured concealed or misrepresented, either in writing or otherwise, any material fact or circumstances concerning the insurance, or in case of any fraud or false swearing by the insured, touching any matter relating to the insurance, whether before or after the loss, it should be void, and also that as soon as passible after the fire the party insured should render a particular account, proved, signed, and sworn to by the insured, stating his knowledge and belief as to the origin of the fire, also the full value of the property covered by the policy at the time and immediately preceding the loss, and the amount of loss or damage sustained. It was charged in this ease that a false statement was made by the plaintiff, and that the plaintiff falsely swore to the statement, and that the provisions of the policy were therefore violated. "You are instructed that in order to constitute a valid defense under the condition of the policy, and in relation to the con- cealment and misrepresentations, or fraud, or false swearing by the insured, it must appear from the evidence that it was in relation to some material fact or circumstances concerning the insurance, and that it was done by the plaintiff firm, or by its members, or either of them, willfully or knowingly, and that it w-as the intention to deceive and defraud the officers and agents of the defendant company. If you find from a preponderance of the evidence that the plaintiff firm by its members, or either of them, by concealing or misrepresenting or falsely swearing INSURANCE — FIRE, ACCIDENT, LIFE. 1683 tauelimg r.ny material fact or cireumstaneco concerning this insurance, as claimed by the defendant, this in law would be sucli fraud upon the defendant as would render the policy void. Fraud and false swearing, in order to prevent recovery, must ])e intentional with the parties defrauding, and it may be with reference to any material matter concerning the insurance, it may be by overvaluing the loss, or by undervaluing wliat they have, or it may be swearing to a loss of property which was not in existence, and in many other waj^s. If the insured, with reference to the quantity and value of the goods insured, made a claim which he knew to be false, and to defraud the defendant, he can not recover anything. If you find then from the pre- ponderance of the evidence that the allegations contained in this defense are true, then the plaintiff can not recover and your verdict should be for the defendant."^ iMelliorii, J., in Carnahan v. Penn. Fire Ins. Co., Hancock County Com- mon Pleas. Doctrine of concealment applies to fire insurance. The insured must not misrepresent or designedly conceal, unless the fact is of unusual peril, and not discoverable by the insurer. Ins. Co. v Ilarmer, 2 0. S. 452; Ins. Co. v. Ins. Co., 5 0. S. 4.50. The materiality of the fact concealed is for the jury, 2 O. S. 4.')2. Sec. 1902. False representations as to other insurance. The false representations material to the risk that would avoid the policy must be to some existing fact affecting the property insured at the time the risk was taken, or during the existence of the policy. And we say to you that any substantial represen- tation as to the fact whether the property to be insured was or was not insured, and was or was not covered by other valid subsisting insurance, would be material to the risk, and any substantial misrepresentations in these respects, inti'ntionally or fraudulently made by the plaintiff to the agent to induce him to issue a policy, and if the policy was issued by reason of such misrepresentations, the defendant, relying thereon and not knowing them to be false, would avoid the [)()licy. When verbal representations are made inaterial to tlie risk, it is not sufiicient that they be false to avoid the policy ; it must 1684 INSTRUCTIONS TO JURY. appear that they are both false and fraudulent to have that effect. If they were honestly made, though they may be untrue in fact, the policy is not thereby rendered void. But material representations made by plaintiff to the agent issuing the policy, which she assumed to be within her personal knowledge, or which she made recklessly, not knowing them to be true, are false and fraudulent in the legal sense, if made with an intent to deceive the insurer, if they were untrue in fact, and were relied upon by the insurer in absence of knowledge to the contrary upon his part in taking the risk, although the plaintiff did not know them to be false. If nothing was said before the making and delivery of policy by either party as to encumbrances or rather insurance on the property insured, the company will be presumed to have w^aived these conditions of the policy, if the insured acted in good faith.^ (a) Good faith of plaintiff. As bearing upon good faith of plaintiff the value of the prop- erty insured has been permitted to remain before you, but unless you find from a preponderance of the evidence that the plaintiff was guilty of intentional fraud in respect to the matter wherewith she is charged with fraud in the defendant's answer, it can not be used by you to reduce the amount of recovery below the amount for which the dwelling-house was insured, if you find the plaintiff entitled to recover. If you should find from a preponderance of the evidence that the plaintiff was so guilty of intentional fraud as herein defined and set up in the answer to the charge of insurance or mortgage incumbrance, then she can not recover for any loss to her house. If you should find against the plaintiff upon the insurance upon the dwelling-house, if you should find that the risk was taken at the solicitation of the agent and not of the plaintiff, and that she made no intentional fraudulent misrepresentations respecting the household furniture and other personal property covered by the policy, you may find for her for the value of such personal property, not exceeding $ , as you find INSURANCE — FIRE, ACCmENT, LIFE. 1685 from the evidence was covered by the policy and was destroyed by the fire, with interest thereon from .- 1 A clause prorating recovery in case of other insurance is not an assent to obtaining other insurance, 28 0. S. 69. Sucii condition is waived if the interrogatory in the application is left unanswered, 24 0. S. 345. 2 Voris, J., France v. Norwich Union Fire Ins. Co., Summit County Com- mon Pleas. Sec. 1903. Same, continued — Return of premium. If you find tiiat the plaintiff was guilty of intentional fraud as herein limited and defined {ante, sec. 1902), the defendant need not offer to return the premium paid on this policy for in- terest on its invalidity because of the fraud set up in its answer.^ 1 Voris, J., in France v. Norwich Union Fire Association, Summit County Common Pleas. Sec. 1904. Fraudulent proofs of loss. ' ' The jury are instructed that if they believe from the e\adence that the policy sued on contained a pro\asion that all fraud, or attempt at fraud, ])y false swearing or otherwise, shaH cause a forfeiture of all claims under the policy, and that, if they further believe from the evidence that plaintiffs have fraudu- lently offered to defendant proofs of loss under the policy, containing material statements in regard to the loss under said policy, which the plaintiffs knew to be false at the time the same were offered, you will find for the defendant." ^ 1 From Shultcr r. Ins. Co., 62 Mo. 237. Sec. 1905. Fire insurance — Ownership of property, insurable interest. The defendant claims that the policy of insurance issued upon in this case was void and never took effect because the plaintiff at the time the policy was issued was not the owner of the property insured. You are instructed therefore that if the owner liad no insurable interest in tlie pt-opcr'ty, no interest therein at tlie time tlie policy was issued, the policy would Ix^ void. But if you find from the evidence that he had an insurable 1686 INSTRUCTIONS TO JURY. interest in the property, the policy would not be void, unless you further find that the plaintiff, at the time he procured said policy, falsely and fraudulently represented his interest therein to the agent of the company. And if you find from the evidence that at the time the policy was issued the plaintiff had the legal title to the property and was in possession thereof, the mere fact that a man of some other name claimed an interest therein Avould not of itself vitiate the policy. If you find that the plaintiff at the date of the policy was the absolute owner of the property, then he would have an insurable interest therein. And if the plaintiff at the date of the policy had a legal title to the property and was the owner thereof, but that he was under obligations to account to some other persons for a portion of the proceeds thereof, he would still have an insurable interest therein. But unless you find from the evidence that he falsely repre- sented to the agent of the defendant company at the time of the issuing of said policy the true nature of his title and interest therein, said policy would not be void.^ 1 Nye, J., in Leonard v. Queen Ins. Co. Sec. 1906. Fire insurance — Defense as to provision requiring production of books for examination. The following instructions may cover the usual provisions in policies touching the matter of the production of books for the examination. The burden of proof upon this issue is upon the defendant, and unless the jury finds by a preponderance of the evidence that what is alleged as to the production of books and vouchers in this matter ou the part of the insured, as required by the policy, is true, this defense is not maintained. It was the duty of the plaintiff to comply with this provision of the policy and produce for examination its books, accounts, invoices, which it then had, upon the request of the defendant. But only such books and other vouchers as were reasonably in the power of the insured to furnish need be furnished. If you find from the evidence that the plaintiff did this, and he was ready and willing INSURANCE — FIRE, ACCIDENT, LIFE. 1687 SO t^ do, IT would be a compliance on Iiis part with this provision of the policy. If. however, you should find that the plaintiff, having hooks of account and other vouchers, refused to furnish them or permit their inspection at a reasonable time and place, or if you find that books of account, bills, and other vouchers, or any of them, were by the plaintiff fraudulently kept from the defendant for the purDose of rendering it impossible for the defendant to determine the amount of stock and loss, then the plaintiff can not recov^,^ 1 Melhorn. J., in Carnahan v. Fire Ins. Co., Hancock County Common Pleas. Sec. 1907. Defense — That large quantities of oil and petro- leum were stored, and drawn at night in violation of policy. The burden of proof to establish this defense is upon the defendant, and if you find by a preponderance of the evidence that the plaintiff, shortly before the fire, caused to be carried into the building in which the insured property was kept a large quantity of coal-oil or petroleum, which was not used, and which was not intended to be used for lighting the store, or for sale therein, and was not kept for either purpose, as provided in the policy, and that the oil was drawn from the barrel in which it was kept and stored in the night time and not by daylight, by the direction or with the knowledge of the plaintiff, this would invalidate the policy, unless the storing of such oil as it appears from the evidence was brouglit to the defendant's knowledge, and the companies consented to such storing of oil in the building. If the jury find from the evidence that coal-oil or petroleum was brought into the store by the plaintiff, or by one of its members, for the purpose of defrauding the defendant, and for the purpose of increasing any loss or damage that might accrue to said property by fire, and that by act or procurement of the plaintiff firm, or one of its members, the oil was put upon the floor of the building containing tlie insured property, or upon the goods, or both, and that by igniting or burning, caused 1688 INSTRUCTIONS TO JURY. a large part of the damage or loss which accrued from the fire, if you find such to be the fact, the plaintiff can not recover. It must affirmatively appear that, if any such act as this was done, it was done by the plaintiff firm, either by one or both of its members, or by some one with the knowledge and direction of the members of the plaintiff firm, or either of them, and unless it does so appear the plaintiff can not be held responsible for such act, and the plaintiff's right to recover would not be lost by reason thereof.^ 1 Melhorn, J., in Carnahan v. Penn. Fire Ins. Co., Hancock County Com- mon Pleas. Sec. 1908. Defense — That fire was caused by willful act of procurement. After reciting the charge as made by the pleadings and the position of the plaintiff thereon that the fire was caused by the willful act or procurement by the plaintiff, the instruction may proceed as follows : To establish the truth of this charge the burden of proof is on the defendant. The rule that applies to criminal acts when the party is charged with the unlawful act of burning property that the jury must be satisfied beyond a reasonable doubt of the truth of the charge does not apply in civil cases. The jury are permitted to lind for or against the respective parties in the action by a preponderance of the evidence. The defendant must satisfy you by a preponderance of the e\'idence that the allegations contained in its answer upon this ground of defense are true, and unless this is done you can not find in favor of the defendant upon this issue. ^ 1 Melhorn, J., in Carnalian r. Penn. Fire Ins. Co., Hancock County Com- mon Pleas. Sec. 1909. Insurance on steamboat — Negligence of owner's agent — Seaworthiness of boat. "If vshe was in a seaworthy condition, and sufficiently manned for such a boat so lying up, and the loss was occasioned by the INSURANCE — FIRE, ACCIDENT, LIFE. 1689 mere negligence and want of proper care of her watcliiuan and those having the care of her, the plaintiff will be entitled to recover, if he has proven all other necessary facts, for such negligence is a peril insured against. But if the negligence consisted in allowing the boat to become unseaworthy, and she ■was lost thereby, there can be no recovery. "The boat need not have been sufficiently seaworthy to perform a voyage, but it must have been for her preservation under all ordinary circumstances while tied up during such period of non-user, and if she encountered a peril insured against which she would have safely resisted if seaworthy, but in consequence of being unseaworthy was sunk by encountering a peril insured against, then the plaintiff can not recover. "And further, if the boat was seaworthy when laid up, but thereafter her seams were suffered to become open by exposure, which the plaintiff failed to have properly caulked, and slie was not in a safe and seaworthy condition requisite for her safety when tied up, then the plaintiff can not recover. "The boat must have been kept in such condition as to be reasonably sufficient to withstand the ordinary perils attending a boat so laid up at that time and place. If slie was not so kept, the plaintiff' can not recover, no matter what peril she may have encountered. If she was, and encountered wind and waves by which she broke her spars, was driven against the bank, and careened so as to be thrown on licr side in sucli a way as to take in water at her seams which were far enough above the water- line so as not to endanger her safety while lying up under ordinary circumstances, and sunk in consequence thereof, then the plaintiff can recover, if he had provided and kept at the boat a force of men sufficient to take care of the boat under ordinary perils, whether all such men were directly in his employ and pay or not." ' 1 From Iiihiiraucc Co. r. I'aiisol. .■?.'> O. S. .'{."). Sec. 1910. Accident insurance — Proof of claim. Tile case froMi whicli llic followin^r lust nicl ion was taken alleged that immediately after the accident and death due proof 1690 INSTRUCTIONS TO JURY. and proper notice thereof, together with full name and address of the insured, was given to the defendant. That on a certain day named, due and affirmative proof of death, resulting from external, violent, and accidental means, M-as furnished to the defendant. If you find from the evidence that blank forms were provided by the company for plaintiff, and the same were filled out, sworn to before a notary public by plaintiff and others, and transmitted to H., state agent for the company, by mail, and the same were received by the company, and thereupon the company in reply thereto notified the plaintiff by the letter, "exhibit A," that her claim under accident policy No. , Avritten by this company on the life of G. S., has been disallowed, you may treat the condition of the policy as a proof of death of the insured, as having been complied with on the part of the plaintiff, or that the defendant waived further proofs of death.^ 1 Voris, J., in Worstler v. Travellers' Ins. Co., Summit County Common Pleas. Sec. 1911. Accident insiirance — ^What necessary to recovery for death upon. To enable the plaintiff to recover, it must appear from a preponderance of the evidence that the death of the insured resulted from bodily injuries, occurring during the terai of the insurance, through external, violent, and accidental means independent of all other causes, and that his death resulted from such injuries alone within ninety days. The burden is upon the plaintiff to establish by such pre- ponderance of the evidence that his death resulted from such injuries, and that she made other allegations in the petition controverted by the defendant 's answer. If the alleged fall was the proximate cause of his death, though he may have had internal disease or bodily infirmity at the time of such fall, but from which he would not have died ])ut for the injuries resulting from the alleged fall, so that you can say that his death did not result wholly or partly, directly INSURANCE — FIRE, ACCIDENT, LIFE, 1691 or indireetl}', from disease or bodily infirmity other tlian tliat resulting from the injury, then the fact that he had such disease or bodily infirmity at the time of the alleged injuries would not be sufficient to defeat his right to recover. By proximate cause is meant a cause from which the death of the insured, in the natural and ordinary course of events, would be likely to follow ; but if the death did result wholly or partially, directly or indirectly, from disease or bodily infirmity existing at the time of the fall, so that you can say from the evidence that such disease or bodily infirmity was the proximate cause of his death, she can not recover.^ iVoris, J., in Worstler v. Travellers' Ins. Co., Summit County Common Pleas. Sec. 1912. Consideration — Adequacy or sufficiency not in- quired into. Was this a sufficient or adequate consideration for the assign- ment from J. L. to plaintiffs? While it is necessary that the consideration for the assignment be of some value, yet the law will not enter into an inquiry as to the adequacy or sufficiency of the consideration for the assignment, but will leave the parties to be the sole judges of the benefits to be derived from this contract, unless the inadequacy or insufficiency of consideration is so great as of itself to prove fraud or imposition. ^ 1 Horace L. Smith, J., in Sabin v. Corcoran, 52 O. S. 030. Sco Judy v. Louderman, 48 0. S. 562. Sec. 1913. Insurance — Application for — Statements, how treated. The plaintiff (widow) is bound by the policy and statements made by her husband. Dr. M. O'lL, which are a part of the contract. The application and statements therein are warran- ties, and are binding on lier ;is if made by her, if by its terms the a|)plieation did wf.rrant. The insurance company had a riglit to make such application to be a part of the policy, and liad a right to rely upon such warranties. The statenient in his 1692 INSTRUCTIONS TO JURY. application that he had never been rejected was. material, and was warranted to be true by him; and it would be a fraud on the defendant for him to state that he had never been rejected. But if at the time the company received this last application it knew that Dr. ]\I. O'H. had been rejected by it in the past, then that fact would not operate in this case to debar the recovery; for the company, in such case, issuing the policy with the knowl- edge of the untrue fact, is barred from setting it up as a defense. So, too, as to representations and w^arranties as to his health and his relatives ; he warranted these statements true, and they were matters upon which the company had a right to rely. However, bearing upon all these answers and warranties, Section 3625 of the statutes of this state provides and says that no answer made in his application for a policy shall bar the right to recover, unless it be proved that the answer was willfully false and fraudulent; that it was material, and induced the company to issue the policy, and but for that, the policy would not have been issued. This is giving the substance or meaning of the statute referred to, and is stated by me as the law governing this case. I have said to you that all these answers were material ; but unless they or some of them were willfully false, and made by Dr. M. O'H., and induced the company to issue the policy, and but for such answer the policy would not have been issued, then any such untrue answer could not operate as a bar to recovery herein.^ 1 G. F. Robinson, J., in Total Abstinence Life Association of America V. O'Hara. Dismissed in supreme court No. 33.57. Charge approved by Circuit Court, Portage County. Sec. 1914. Insurance — Life — Misrepresentations made by in- sured. "A misrepresentation or false statement made in his applica- tion for insurance, by a person whose life is insured, respecting a material fact, avoids the policy issued upon that application, and this whether the misrepresentation was made innocently or INSURANCE — FIRE, ACCIDENT, LIFE. 1693 designedly. If, therefore, the jury believed from the evidence that the insured, in his application for the policy or certificate here sued on, stated that he had no serious illness, or stated that he had not had during the last seven years any disease or severe sickness, and that either of those statements were false in any respect, and are deemed by the jury material, then whether the insured intended to deceive or not, the said policy or certificate is void, and the jury should find for the defendant, unless they further believe that the avoidance of the policy or certificate has been waived by the defendant. ' ' ^ 1 Schwarzbach v. 0. V. Protective Union, 2.1 W. Va. 640. Sec. 1915. Same, continued — What constitutes waiver of mis- representations. ' ' There can be no waiver of the avoidance of a policy by reason of material false statements or misrepresentations in the applica- tion, unless the acts relied upon as showing the waiver were done mth full knowledge of the facts. While, therefore, the receipt of premiums or assessments with full knowledge on the part of the defendant of facts working a forfeiture of the policy, might constitute a waiver of such forfeitures, yet the receipt of such premiums or assessments in ignorance of such facts would not constitute a waiver. ' ' ^ 1 Schwarzbach ?-. 0. V. Protective Union, 2.") W. Va. r>40. Sec. 1916. Concealment of material fact concerning insurance, or subject thereof. Concealment is tlie designed and intentional withholding of any fact, material to the risk, which the assured in honesty and good faith ought to communicate to the company. Such alleged act of concealment involves, not only the materiality of the fact claimed to be withheld, and which ought t« liave been com- municated, but also the design and intention of the insured withholding it. The condition of the policy regarding a concealment must he construed in the light of the definition of concealment just given. 1694 INSTRUCTIONS TO JURY. Where the materiality of the facts against the concealment of which the policy provides does not appear from the contract of policy, as it does not in this case, both the question of materiality of the fact alleged to have been concealed, as well as the intent of the insured in so concealing the same, are to be drawn or found from the facts and circumstances disclosed by the evidence. So it is for the jury to determine Avhat fact or facts were con- cealed, whether they were material, as well as the intent with which the same were concealed.^ So if the jury find, etc. In determining the intent with which the fact, was concealed, if the jury find that it was concealed, it will be essential for the jury to ascertain and find whether an inquiry was made con- cerning the fact, because the law makes a distinction between cases where an inquiry is made and those where none is made. The rule of law applicable to such question is that when no inquiries are made, the intention of the assured becomes material, and to avoid the policy, the jury must find, not only that the matter was material, but also that it was intentionally and fraudulently concealed.^ So, therefore, if the jury find, etc. 1 Ins. Co. V. Colo. L & M. Co., 50 Colo. 424, 116 Pac. 154; Am. Ann. Cas. 1912, C. p. 597. 2 Id. Alkan v. Ins. Co., 53 Wis. 136; Ins. Co. v. Monroe, 101 Ky. 12; Arthur v. Ins. Co., 35 Ore. 27, 57 Pac. 62, 76 Am. St. 450. CHAPTER ex. INTOXICATING LIQUOR. 8EC. SEC. 1917. Action by wife against per- son selling or furnishing 1922. liquor to intoxicated per- 1923. son — Liability of person furnishing. 1924. 1918. Evidence of sales made after suit. 1919. Who is keeper of place. 1925. 1920. Defendant must know of habit of intoxication — Notice — 1920. Damages. 1921. Selling and furnishing intox- icating liquors to habit- 1927. ual drunkards — What 1928. constitutes a sale 1929, Same continued — Intoxication defined. Same continued — Habitual drunkard. Sale of intoxicating liquors within two miles of agri- cultural fair. Same continued — What consti- tutes a sale. What constitutes sale within two miles of agricultural fair. What is intoxicating liquor. What is agricultural fair. Sales by agent or barkeeper. Sec. 1917. Action by wife against person selling or furnish- ing liquor to intoxicated person — Liability of person furnishing. By statute it is made unlawful and punishable for any person to furnish to any person who is at the time intoxicated, or in the habit of getting intoxicated, any intoxicating lifjuors what- soever, unless given by a physician in the rcfjular coui-se of his practice. This law makes it unlawful to furnish intoxicalin^ liquors contrary to its provisions. If the defendant so furnished intoxi- cating liquors to the hus])and of the plaintiff, he being at the time, to the knowledge of the defendant, intoxicated, or in the habit of getting intoxicated, the act or acts of so furnishing liquor were unlawful, 1695 1696 INSTRUCTIONS TO JURY. The defendant can only be made responsible for such instance of intoxication of the plaintiff's husband as may have been caused in wliole or in part by liquors which he may have so illegally sold or furnished. If A. B. was on a particular occasion or occasions intoxicated during said period, to which intoxication the liquors of defend- ant, so sold or furnished to A. B., did not contribute in whole or in part, the defendant is not responsible for such intoxication. But if defendant's liquor, so sold or furnished to A. B. during such period, in part caused the intoxication of said A. B., the defendant would be responsible for such instance of intoxication, although liquor which was not obtained from defendant also in part caused or contributed to such instance of intoxication. And if the liquor so sold or furnished by defendant to A. B. caused his intoxication, either alone or in connection with liquor not obtained from defendant, in a siiffieient number of instances to satisfy you that A. B. was habitually intoxicated by such liquor of defendant acting alone, and also acting with such liquor of others, the jury should find that defendant caused the habitual intoxication of A. B. But if the liquor of defendant, so sold or furnished, caused in whole or in part the intoxication of A. B. in a less number of instances than is required to make him habitually intoxicated, yet, if defendant's liquor, thus sold or furnished to A. B., caused his intoxication in one or more instances, it would be sufficient, on this second point, to authorize a finding for plain- tiff. Whether the intoxication which may have thus been caused by defendant was in but a single instance, or occasional, or habitual, will be an important subject of consideration upon the point of injury to plaintiff's means of support, or in assessing damages. If it be found that A. B. was intoxicated in any instance or instances, as to which the jury do not find that the defendant's liquor so sold or furnished to A. B., caused the intoxication in whole or in part, such instances of intoxication can only be considered by you upon the question whether A. B. was in the habit of getting intoxicated, and the defendant should not be INTOXICATING LIQUOR. 1697 held responsible for any injury to the plaintiff which may have resulted from such intoxication.^ iFrom Sibila v. Bahney, 34 0. S. 399. See Baker v. Beckwith, 29 O. S. 314. Sec. 1918. Evidence of sales made after suit. If it be found from the proof that defendant, since the com- mencement of the action, has sold intoxicating liquors to plain- tiff's husband in violation of law, that would afford no ground whatever for a recovery on the part of the plaintiff ; but if it be found that the plaintiff ought to recover for intoxicating liquors sold to her husband during years previous to the beginning of this suit, the jury has a right to consider the fact that it has been repeated, and the unlawful sale to him indulged in since its commencement, for the purpose of throwing light upon the mind of the defendant at the time he sold the liquors during the four years prior to the filing of plaintiff's petition; the jury has a right to consider it in aggravation of damages, or as a reason why they should or may be increased. Her right to recover can not be founded upon any such sales, but the most that can be done would be to increase her recovery by way of exemplary damages for such sales, if she is otherwise entitled to a verdict.^ 1 From Bean r. fireen, 33 O. S. 444. Sec. 1919. Who is keeper of place. If tl)e defendant had the possession, care, and control of the room, and managed, conducted, and controlled the business transacted therein, and sold liquor in violation of law, then he was the keeper of the room within the meaning of the statute, whoever may have been the actual owner of the property.^ 3 From Selmltz r. The State. 33 O. S. 27f). Sec. 1920. Defendant must know of habit of intoxication — Notice — Damages. To authorize a recovery it must appear that J. W., tin' Inisband of the plaintiff, was a person in the ha])it of getting intoxicated. 1698 INSTRUCTIONS TO JURY. It must also rppear that the defendant knew that he was a person in the habit of becoming intoxicated as it appears in the petition. It must appear that the plaintiff gave notice not to sell to her husband intoxicating liquors. This notice must be given in the presence of witnesses or a witness. It must also appear that the notice was given at the time alleged in the petition ; it need not be done at the exact time alleged, but near about that time. It must appear that the plaintiff has been damaged in her means of support, or her person, on account of alleged illegal sales, if any were made by the defendant to the husband. Should you find that the defendant sold intoxicating liquors to J. W. in violation of law, within the time charged in the petition, or about the times charged in the petition, and that the plaintiff sustained damages by reason of the intoxication of J. W., caused thereby to her person, property, or means of support, the fact that other persons sold liquor to J. "W. in Adolation of law, within that period, and which liquor may have contributed to increase the intoxication and consequently to enhance the injury resulting to the plaintiff therefrom ; such facts, if shown to have existed, will not exonerate the defendant from the consequences of his wrongful acts ; but on the contrary, he will still be responsible for all the injury resulting from the Intoxication of J. W. to the plaintiff caused by the sales of liquor. If you can separate the damages resulting from the intoxica- tion caused by illegal sales to the said J. W. by the defendant from the damages resulting from the sales to J. W. by others, you must do so. But if such separation can not be made, you will render your verdict against the defendant for all acts resulting in pecuniary damages to the plaintiff, in person, property, or means of support, by reason of the intoxication of J. W. to which the sales of liquor by the defendant contributed.^ I Gillmer, J., in Whittakcr r. Walsh, Trunil)ull Co. Com. Pleas. Sec. 1921. Selling and furnishing- intoxicating liquors to habitual drunkards — What constitutes a sale. By statute in Ohio it is provided that whoever sells intoxi- cating liquors to a person in the habit of getting intoxicated INTOXICATING LIQUOR. 1699 shall be punished as is provided in said statute. It is further provided by the statute, among other things, that whoever buys for and furnishes a person who is in the habit of getting intox- icated any intoxicating liquor shall be punished as is provided in said statute. You will observe that there are two kinds of offenses charged in the several counts of the indictment in this case. One is the selling of intoxicating liquor to a person in the habit of getting intoxicated, and the other is that of furnishing intoxicating liquor to a person in the habit of getting intoxicated. To constitute a sale a person procuring liquor must have paid for the same or agreed to pay for the liquor. As matter of law, the supplying of intoxicating liquor to a person in the habit of getting intoxicated, to be drunk ])y him, is the furnishing of liquor within the meaning of our statute, altliough it may have been purchased by another and supplied by the seller to a person in the habit of getting intoxicated in pursuance of such purchase.^ If a person in the habit of getting intoxicated should go into a saloon with another person, and such other person should buy from tlie saloonkeeper intoxicating liquor for himself and such habitual drunkard, to be drunk by them there before the saloonkeeper, such act would be a furnishing by the saloon- keeper to such habitual drunkard, although such third person paid for the intoxicating liquor.- 1 See 25 O. S. 381. 2 Nye, J., in State v. Kelley, Lorain Co. Com. Pleas. Sec. 1922. Same, continued — Intoxication defined. '"A person may be said to be intoxicated when lie is so much under the influence of intoxicating liquor that he is unfitted and disqualified from attending to and performing the usual duties and business of life. Intoxicating liquor afreets different individuals in different M'ays. One individual it renders dull and stupid, so fliat while he may j)ossess the powers of loco- molion liis intellect is so stupefied that he is wholly incapable 1700 INSTRUCTIONS TO JURY, of attending to any matter of business; another is rendered excited and noisy, and for a time positively insane, although he may be physically stronger and more active than when sober. In this instance the effect is upon the mind, disqualifying the man intellectually from being fit to be entrusted with the per- formance of any important business. ''On the other hand, another person will exhibit intoxication by losing all control over his muscular action, so that he will be unable to walk or move, while his mind may be tolerably clear and capable of comprehending a matter of business. Still the man is physically disqualified by the intoxication from attending to his ordinary business. There are other persons who are mentally and physically able to drink large amounts of intoxi- cating liquors without losing their mental ability, or all control over their muscular action; but yet the effort to maintain this self-control is so great that they are wholly incapable of attending to any business, or performing any duty resting upon them as men and members of society. There are degrees of intoxication. In order to be intoxicated it is not necessary that the person should be so drunk as to be wholly without the ability to think or move ; it is enough if he is so far affected as to render him unfit and disqualified for the performance of ordinary callings — so affected that it would be unsafe to trust him with the driving of a team, the care of a mill, the making of a contract, or the sale of property, \nth the steering of a steamboat, with the prescribing as a physician, or the giving of advice as a lawyer. A person so affected by intoxicating liquors is truly in a state of intoxication and can truly be said to be intoxicated."^ 1 Nye, J., in State v. Kelley, Lorain Co. Com. Pleas. Sec. 1923. Same continued — Habitual drunkard defined. This word implies more than a single act of intoxication — more than an occasional act of intoxication. It implies a series of acts ; acts of intoxication so often repeated that it may be reasonably expected that the individual will become intoxi- cated whenever he can obtain the means of so doing. Wlien a INTOXICATING LIQUOR. 1701 person has acquired such a taste for intoxicating liquors, and lias so far lost the control of his will that he will usually drink to excess whenever he can ol)tain it, he has emphatically acquired the habit of getting intoxicated. Nor need the acts be repeated in rapid succession ; it is enough to constitute the habit if the person gets intoxicated whenever the opportunity offers, although these opportunities may be at considerable intervals in lapse of time. The habit is still formed, the individual becomes intoxicated whenever the means are at his command.^ J Nye, J., in Stato r. Kolley, Lorain Co. Com. Pieas. Sec. 1924. Sale of intoxicating liquors within two miles of agricultural fair. Your attention is directed to the material things which it is necessary for the state to make out to entitle it to the verdict of guilty as charged in the indictment. First: That the sale of intoxicating liquors was made by the defendant to C. W.. Second: That said sale of intoxicating liquors was made within two miles of the place where an agricultural fair of the County Agricultural Association was being held. Third : That said offense was committed in the County of , and State of Ohio. Fourth : That said offense was committed on or about the day of , 19 — . If you should find from the evidence that said offense was committed on or about that time, near to that time, that would be sufficient so far as the date is concerned, provided said offense was committed during the time that the agricultural fair of the County Agricultural Association was being held. The state must establish each of the foregoing propositions by evidence that satisfies your minds of their truth beyond a rea.sonable doubt. ^ 1 Nye, J., in Stato v. Hunter, Lorain Co. Com. Pleas. Sec. 1925. Same, continued — What constitutes a sale. You are now instructed upon each of the material things which it is necessary for the state to make out before it is entitled to a verdict of guilty at your hands. 1702 INSTRUCTIONS TO JURY. To constitute a sale the person procuring the intoxicating liquors must have paid for the same, or agreed to pay for the liquor at the time he purchased it. If you find from the evidence that the offense was committed on the evening of the day of ^ 19 — ^ that would be sufficient so far as the date is con- cerned, to w^arrant a conviction upon a count which charges an offense to have been committed on the day of , 19 — , providing said offense was actually committed during the time the agricultural fair of the County Agricultural Association was being held. This becomes a question of fact for you to determine from all the evidence in the case whether the said defendant did sell intoxicating liquors to the said C. W. on the night of the day of , 19 — .^ 1 Nye, J., in State v. Hunter, Lorain Co. Com. Pleas. Sec. 1926. What constitutes sale within two miles of agricul- tural fair. If you find from the evidence given you ^n this case that the County Agricultural Society held an agricultural fair in County, which opened its exhibits to visitors on the morning of day of , 19 — , and continued open from day to day, every day, until the afternoon or evening of , 19 — ^ except that its grounds were closed to the public during the nights, and you further find that substantially all the exhibits of said agricultural fair remained on the grounds of f.aid County Agricultural Society, both day and night during said period, you are instructed that the place where the said agricultural fair was thus held was, in contemplation of the statutes, a place where agricultural fair was being held, during all the time both day and night, from the time that said agri- cultural fair was thus opened for its exhibition to the public, from the morning of , 19 — , or afternoon or evening • , 19 — ; and the sale of intoxicating liquors within two miles of the place where the agricultural fair was being held would be a violation of the statute. It would, therefore, be unlawful to sell intoxicating liquors within two miles of the place where INTOXICATING LIQUOR. 1703 the agricultural fair was thus being held, from the time of its opening to its close. It then becomes a question of fact for j^ou to determine from all the evidence in the case, if you find that intoxicating liquors were sold by the defendant to said C. W. as claimed by the state, whether said sales, or either of them, were made during the time that said agricultrual fair was being held.^ i Sye, J., in State v. Hunter, Lorain Co. Com. Pleas. Sec. 1927. What is intoxicating liquor. Upon the subject of intoxicating liquors you are instructed that whisky is an intoxicating liquor. If, therefore, you find, from the evidence which has been submitted to you in this case, that the defendant sold whisky to the said C. W., the sale of whisky would be the sale of intoxicating liquor.^ 1 Xye, J., in State r. Hunter, Lorain Co. Com. Pleas. Sec. 1928. What is an agricultural fair. It becomes important for the jury to determine from the ^idence whether an agricultural fair of the Counity Agricultural Society was being held at the time the alleged sales, or either of them, are said to have been made. You are instructed that, "A place where industrial products of the people in agriculture, manufacture and the arts are received and placed on exhibition for the purpose of displaying them and awarding prizes as the reward for excellence, is an agri- cultural fair." And one who sells intoxicating liquors within two miles of the place where the agricultural fair is being held, is liable under the state statute.^ 1 Nye, J., in State v. Tluiitor, Lorain Co. Com. Pleas. Sec. 1929. Sales by agent or barkeeper. If you find from the evidence which h;is Ix-en given to you in this case, tliat there was a sale of intoxicating lifiuoi-s to said C. W. bv the agent of the defendant, acting in Ihe line of liis 1704 INSTRUCTIONS TO JURY. duties, the defendant would be liable for the acts of his agent, thus acting in the line of the agent's duty and authority. If you find from the evidence that the defendant placed someone, even temporarily, behind the bar to wait on customers, and make sales, such person so placed there w^ould be the agent of the defendant in waiting on customers and making such sales, while thus in the employ of the defendant. If you find from the evidence that there was a person behind the bar in defendant's place of business in the act of selling articles there kept for sale, with the knowledge of the defendant, that act may be considered by you in determining whether said person was agent of the defendant, and acting with the authority of the defendant. And if you find from the evidence that someone went into the defendant's place of business and went behind the bar and sold intoxicating liquors without the knowledge or consent of the defendant, defendant will not be liable for any sales made by such unauthorized person. The defendant had a right to go into his saloon at any time during the agricultural fair, and there would be no liability therefor. If the defendant made no sales of intoxicating liquors, either by himself or an agent authorized in the matter, he could not be legally convicted,^ 1 Nye, J., in State v. Hunter, Lorain Co. Com. Pleas. CHAPTER CXI. LANDLORD AND TENANT. SEC. SEC. 1930. Duty of landlord to repair 1931. Same continued — Defects walks, remaining under known to plaintiff, his control, and part of 1932. Whether premises rendered common walk. unfit for occupancy on account of fire, so that rent may not be collected. Sec. 1930. Duty of landlord to repair walks— Remaining under his control, ajid part of common walk. It is the duty of a landlord who lets premises to which there is a common walk, which remains under his own control and is not let to any of the tenants, to use reasonable care and diligence in keeping that walk in repair; and if, by his failure to use that sort of care and diligence, the walk gets out of repair, and a party is injured by reason thereof, without having been guilty of any negligence which contributed to the injury, then he or she would be entitled to recover. If the walk upon which the plaintiff is alleged to have been injured was a common way, and was under defendant's control, it was his duty to see to its condition, and the fact, if such were the fact, that the plaintiff did not inform defendant of its unsafe condition does not necessarily preclude plaintiff's recovery. The renting or leasing of a house will include everything belonging to it, or which is reasonably necessary to its enjoy- ment. It will also include all usual and accustomed ways to the house. Whenever a house is rented or leased, all the means to which the lessor is entitled to attain the use and enjoyment of the house pass by the renting or leasing to the tenant. These are called appurtenances and pass to the tenant by the renting or leasing of a house without being made. If you find from the 1705 1706 INSTRUCTIONS TO JURY. testimony and from all the circumstances of the case that so much of the yard and the walk therein, in the rear on No. — Street as would be included within the lines of the house so numbered prolonged, are reasonably necessary to the enjoy- ment of that house, then so much of the yard in the rear of No. Street, and the walk therein, included between the lines of the house prolonged, were included in the renting of the house to the plaintiff, and were under her care and control, and she can not recover in this action, although other tenants of the blocks of buildings of which said No. Street is one have a right of way over the walk. The fact that other tenants of the row had a right of way in the walk extending through the yard of each of the others does not necessarily show that the custody and control of such part is not in the tenant through whose yard it passes.^ 1 From Emery r. ]\Iary A. Dee, supreme court. 27 W. L. B. 160, Xo. 1.342. H. D. Peck, J. Sec. 1931. Same, continued — Defects in walk known to plaintiff. The plaintiff adraits that she knew of the defects in the walk. Her knowledge of the defects is a prominent fact in the case to be taken into consideration with all the other facts and circum- stances in determining the question whether her own negligence contributed to the accident by which she claims she was injured. And if you should find that by her own carelessness she did contribute to the accident, she can not recover. The law does not measure degrees of carelessness, and if you find that the plaintiff in any material degree contributed by her carelessness to the injury, she can not recover. Knowing the defective condition of the walk when she rented the premises, plaintiff was therefore bound to use such increased care in using the walk as its defective condition required, and she can not excuse herself for the want of such care by the plea that she was not responsible for the defects themselves.^ 1 From Emery v. Dee, supreme court, No. 1543. LANDLORD AND TENANT. 1707 Sec. 1932. Whether premises rendered unfit for occupancy on account of fire — So that rent may not be collected. The question, then, is whether in this case there was such a destruction or such an injury to the premises by the fire and water — by what occurred at that time resulting from the fire — as that it became unfit for occupancy; because, to justify a lessee in abandoning premises, or insisting upon the termination of a lease, the injury or destruction must go to the extent of rendering the premises unfit for occupancy. It must amount to such destruction as that the premises are unfit for occupancy; not that there must be an absolute wiping out of the building — its absolute destruction from the face of the earth — but it must be such an injury, or the injury must go so far toward total destruction, as that it is no longer suitable to be used for com- mercial purposes, or for such purposes as it was fairly and reasonably designed to accommodate in its original construction. Mere temporary inconvenience occasioned by a fire w'ould not justify or authorize a tenant to vacate premises, nor would it have the effect to terminate the lease. JMere inconvenience, the mere cessation or interruption to business for a day or two, would not have that effect. It must go to the extent of rendering the premises untenantable, so that the situation requires a removal elsewhere. Now, it is hardly within the province of the court to indicate, I think, just what state of facts would justify a removal, or would justify the terminating of a lease. I only propose, in a general way, to give you general rules for your guidance. As 1 say, mere temporary inconvenience, a mere wetting of the walls by itself, standing alone, as a circumstance, the wetting of the fkx)rs, the mere putting out of the fire by flooding a cellar, if it could be removed within a short time, if the effects could be over- come within a short time — any one of these things alone would not constitute such destruction, or such an injury to the prem- ises as would justify a lessee in terminating a lease. Those are all circumstances to be considered, however, together with other 170& INSTRUCTIONS TO JX^Y, things, with a view of determining- whether the building, as a structure, has undergone such injury and such destruction as a whole that it is no longer a structure suitable for the business for which it was designed. If this fire was of such extent and so destroyed these premises as a whole (and I now refer in what I say to the premises as a whole), if they were injured to such extent that there was a burning away of the roof or of the Avindows, that is spoken of as to make these premises as an entirety unfit for occupancy, unfit to be used in a commercial business, then it was the right of the lessees to vacate the premises and terminate this lease; it was their right to insist upon its being terminated, if such a condition of things occurred. If there was such a destruction or such injury, if it w^ent to the extent that the building as a whole was untenantable, unfit for occupancy, then they would have the right, we think, under the statute, under this lease, to insist upon its termination.^ 1 Carlos M. Stone. J., in Weil, Josepli & Co. v. Gilclirist. Judgment affirmed, R. R., see. 4113. The injury contemplated by the statute is a total destruction. Suydam v. Jackson, 54 N. Y. 450; Stitphen V. Seebass, I'i Daly, 139 i Hillard v. Goalies, 41 0. S. 662, CHAPTER CXII. LARCENY. SEC. 1933. Larceny defined. 1934. Grand larceny — Essential and material allegations to be proved. 1935. What constitutes a taking and carrying away. 1936. Return of property upon be- ing discovered does not change offense. 1937. What constitutes larceny of property where owner voluntarily parts with its possession. 1938. Grand larceny committed by destruction of property — Intent — How proved. 1939. Larceny of lost money — What essential to constitute larceny by finder. 1940. Value of property must be proved. SEC. 1941. Larceny of money found by undertaker on dead body drowned in fiood. 1. The indictment, pha and burden. 2. Presumption of innocence — Reasonable doubt, etc. 3. The statute. 4. To steal, defined. 5. Anj-thing of value, defined. 6. Ownership of property in heirs. 7. Duty of defendant as cor- oner as to body and mon\'y found thereon. 8. If defendant took money feloniously but a short time. 9. Intent to steal. 1942. Larceny — Short charge in. Sec. 1933. Larceny defined. The statute under wliieh this indictment is hrought provides that "whoever steals anything of value is guilty of larceny,' and shall he punished as is provided in the statute." It may aid you in arriving at a just and proper verdict hy defining some of the terms involved in the crime charged in this indictment. To steal is to take and cany away feloniously personal goods of another,^ to take without right or leav(>. T.arceny is the wrongful taking and carrying away hy any person of the mere personal goods of another froTU any place, with a felonious intent to convert them to liis (the taker's) own use, and make them his own property without the consent of the other. Again, 1709 1710 nsrsmucTioNs to juky. larceny is defined to be the wrongful or fraudulent taking and carrying away without color of right the personal goods of another, from any place, with the wrongful intent to convert them to his (the taker's) own use, and make them his property without the consent of the owner. Again, I say to you, larceny is the taking and removing by the trespass of personal property, which the trespasser knows to belong to another, with the felonious intent to deprive him of his ownership therein.^ 1 Code, sec. 12447. 2 The word "steal" implies a carrying away. State v. Mann, 25 0. S. 668. 3 Nye, J., in State v. Michke, Lorain Co. Com. Pleas. For definition see 2 Bish. Cr. Law, sec. 758; Clark's Cr. Law, 241; Hawley's Cr. Law, 188. Sec. 1934. Grand larceny — Essential or material allegations to be proved. (Precede by statement of allegations of the indictment.) Material allegations of the indictment and the things which it is necessary for the state to prove before it would be entitled to a conviction at your hands are as follows: First. That the personal property named in the indictment or some part of it was stolen. Second. That the defendant here on trial committed the offense. Third. That the said property was the property of E. M. Fourth. That said offense was committed within the County of , State of Ohio. Fifth. That the offense was committed on or about the day of , 19 — . Sec. 1935. What constitutes a taking and carrying away. In order to constitute the offense of larceny there must be an actual taking or severance of the thing from the possession of the owner, for, as every larceny includes a trespass, if the party be not guilty of a trespass in taking the goods, he can not be guilty of a felony in carrying them away.^ There must also be a carrying away of the goods taken. Wlien this is done the offense is complete, the crime is committed, and LARCENY. 1711 can not be purged by a return of the goods, tliough the possession be retained but for a moment.- The felony lies in the very first act of removing the property ; therefore the least removing of the entire thing taken, with an intent to steal it, if the thief thereby for an instant obtain the entire possession of it, it is an asportation, though the property be not removed from the premises of the owner, nor retained in the possession of the thief.^ 1 Eckels V. state, 20 0. S. 512; Roscoe's Crim. Ev. 587 ; 2 Riiss. on Crimea, 5. 2 Id. 3 Greenleaf's Ev., sec. 156; 2 Russ. on Crimes 6. 3 Eckels i\ State, 20 0. S. 512, 513. The thing need not be taken into the manual possession of the thief. Lem. Doss v. State, 21 Tex. App. 505. Sec. 1936. Return of property upon being discovered does not change offense. The jury are instructed that if the defendant had actually taken the money into his hand, and lifted it from the place where the owner had placed it, so as to entirely sever it, he would be guilty of larceny, though he may have dropped it into the place in Avhich it was lying, upon being discovered, and never have had it out of the drawer.^ 1 Eckels V. State, 20 0. S. .lOS. Sec. 1937. What constitutes larceny of property where owner voluntarily parts vdth its possession. you are instructed that to constitute larceny in a case where the owner voluntarily parts with the possession of his property, two other conditions are essential. 1. The owner, at the time of parting with the possession, must expect and intend that the thing delivered will be returned to him or disposed of under his direction for his benefit. 2. The person taking the posses- sion must, at the time, intend to deprive the owner of his prop- erty in the thing delivered. But where the o^^^ler intends to transfer, not the possession merely, but also the title to the property, although induced tliereto by the fraud and fraudulent pretenses of the taker, the taking and carrying away do not 1712 INSTRUCTIONS TO JURY. constitute a larceny. In such case the title vests in the fraudu- lent taker, and he can not be convicted of the crime of larceny for the simple reason that, at the time of the transaction, he did not take and carry away the goods of another person, but the goods of himself.^ 1 From Kellogg v. State, 26 O. S. 15, 18, 19. See State v. Coombs, 55 Me. 477; Beatty v. State, 61 Miss. 18; Snapp v. Com., 82 Ky. 173. As to manner of taking see Clark's Cr. Law 248. Sec. 1938. Grand larceny committed by destruction of prop- erty — Intent — How proved. The state claims that the defendant here on trial took the property named in the indictment and carried it and conveyed it away and destroyed it by burning it up. The state further claims that defendants took said property with intent to convert it to their own use and then destroy it, for the purpose of depriving the owner of said property. On the other hand, the defendants deny that they took the property with intent to convert it to their own use, and they further deny that they took the property at all, and they deny that they burned or destroyed the property, and deny that they had anything whatever to do with it. Now, gentlemen, if you find from the evidence given you in this case that the defendants took the property named in the indictment, or any portion thereof, it will be important for you to determine with what intent they took said property. Intent can rarely be proved by the direct evidence of the condition of the person's mind, hence the presence or absence of intent must be gathered by considering all the facts and cir- cumstances, to determine whether the acts were accompanied by a criminal purpose or an honest purpose. If you find from the evidence that the defendants here on trial feloniously took the property named in the indictment, with intent to convert it to their own use, without the consent of the owner thereof, then I say to you that such an act would constitute a larceny of the property so taken. LABCENY. 1713 Again, I say to you if you find from the evidence given you in this ease tliat the defendants here on trial feloniously took said property with intent to destroy it, and thus deprive the owner of it without the owner's consent, such act would con- stitute larceny of said property. If you find from the evidence that has been given you on the trial of this case that the defendants here on trial took said property, it will be important for you to determine with what intent they took it. If you find from the evidence that the defendants took said property without the consent of the owner and failed to return it, that fact may be considered in deter- mining with what intent the defendants took the property at the time they took it. Again, if you find from the evidence that the defendants took said property without the consent of the owner thereof, and soon thereafter destroyed it by burning it up, that fact may be considered by you in determining with what intent they took said property.^ 1 Nye, J., in State v. Mischke, Lorain Co. Com. Pleas. Sec. 1939. Larceny — Of lost money — What essential to con- stitute larceny by finder. ' ' Though the money was actually lost and the defendant found it, and at the time of finding supposed it to be lost, and appro- priated it with intent to take entire dominion over it, yet really believing that the owner could not be found, that was not larceny and he can not be convicted. The intent to steal must liave existed at the time of the taking. It is not enough that lie had the general means of discovering the owner by honest diligence. lie was not bound to inquire on the streets or at the printing offices for the owner, though if, at the time of the taking, he knew he had reasonable means of ascertaining that fact, that might be taken as showing a belief that the owner of the money could be found. In order to convict, it nujst be shown that the taking of the property was with felonious intent ; that is, with intent to steal under the definition given ; and it 1714 INSTRUCTIONS TO JURY. is not sufficient that subsequently after finding the money it was converted to his own use with felonious intent. The intent must have existed at the time of the finding. ' '^ If a person finds goods that have actually been lost, and believing at the time, or having good reason to believe, that the owner can be found, but takes possession with intent to appropriate the same to his own use, he is guilty of larceny.- 1 From Biooks v. The State, 35 0. S. 46. For another charge and author- ities, see Thompson's Trials, sec. 2202. 2 Baker v. State, 29 0. S. 184; Kegina v. Thurborn, 1 Dennison C. C. 387 ; Regina v. Wood, 3 Cox C. C. 453 ; Clark's Cr. Law 255. Sec. 1940. Value of property must be proved. Before the defendant can be convicted, you must be satisfied that the property claimed to have been stolen is of some value. If the state has failed to affirmatively prove that the property was of some value, then it is the duty of the jury to acquit the defendant. This fact must be proved as other facts.^ 1 State V. Krieger, 68 Mo. 98. Sec. 1941. Larceny of money found by undertaker on dead body drowned in flood. 1. The indictment — Plea and burden. Now, gentlemen of the jury, the indictment charges that the defendant, 0., did on , in Franklin county, Ohio, unlawfully steal, take and carry away — dollars in money the personal property of S. S. et al., heirs at law of S. S., deceased. The defendant pleads not guilty. Gentlemen, there is but one question of fact for you to decide ; that is, whether defendant at the time he took the money in- tended to unlawfully steal the' same. The burden is on the state to prove the defendant guilty beyond a reasonable doubt. 2. Presumption of innocence — Reasonahh doubt, etc. The law presumes that he is innocent, notwithstanding the indict- ment preferred against him. LARCENY. 1715 A reasonable doubt is such a state, of mind on the part of jurors after having fairly and impartially weighed and con- sidered all the e\adence in the case, that you may have an honest and substantial feeling of uncertainty or doubt of the guilt of the accused, and which rests upon some reasonable ground disclosed by the evidence. If there is nothing in the evidence that fairly and reasonably causes you to have such reasonable doubt, but, on the contrary, you have an abiding conviction of the guilt of the defendant of the crime charged, your duty is to find him guilty. But if you have a reasonable doubt of defendant's guilt, your duty is to acquit him. The jury being the sole judge of the facts to be deduced and found from the evidence, you must also decide what credit is to be given to any and all witnesses. In considering the weight and credit to be given witnesses, you will consider their testimony in the light of all the facts and circumstances developed and apply such tests as in your judgment you deem proper. You may consider w'hether any witness has or has not been influenced or biased by any interest in the trial ; the demeanor while on the witness stand, whether corroborated or contradicted. 3. The statute. Section 12,447, under which this indictment is framed, provides that: "Whoever steals anything of value is guilty of larceny." 4. To steal, defined. To steal anything is a criminal taking, obtaining, or converting of the personal property of another wnth intent to refraud or deprive the owner permanently of the use of it. [Commonwealth v. Kelley, 184 Mass. 320.] It is to take the property of another without right or leave, and with intent to keep wrongfully. [46 Fla. 115; 152 Mo. 76; 164 N. Y. 137; 31 Wash. 245.] 5. Anything of value, defined. Anything of value, as used in the statute, means and comprehends money which is the sub- ject of the charge in this case. 6. Ownership of property — In the heirs. In an indictment for larceny the ownership of tlie property must be alleged and 1716 INSTRUCTIONS TO JURY. be proved to be in some person, although the actual condition of the legal title is immaterial to the person charged. So in this case, it being conceded that the money was found on the body of a dead person, Mrs. S., the court states to the jury that the possession of the same legally belonged to her heirs, the persons named in the indictment, they having the right to demand and take possession of any money found on the body of their mother. [See 111 Ala. 29.] 7. Duty of defendant as coroner as to lody and money found thereon. It is conceded that the dead body of S. S. was brought to the place of the defendant in a wagon by persons other than the defendant. The court, therefore, instructs the jury that the defendant having received the body under such circumstances, he was bound under the law to yield control and supervision of the disposition of the body as well as of any money found on the body to any one or all of the heirs of S. S. named in the indictment. The defendant, 0., in his capacity as undertaker had no legal right to retain the money found by him on the body until his bill for the services to be rendered by him in the burial of the body was paid. If the jury find from all the facts and circumstances shown by the testimony, that at the time of finding the money, that the defendant, 0., had reasonable ground to believe, from the nature of the property found, or from circumstances under which it was found that if 0. did not conceal the fact that he found it, and had possession of it, but that if he dealt honestly with it, the persons to whom the possession rightfully belonged would appear or would be ascertained, then, if you find also that he purposely concealed the fact that he had found the money, and kept the same in his possession for a short time with intent to convert it to his own use, the defendant would be guilty of larceny, provided the jury further find from the evidence that at the time he took the money into his possession he intended to convert it to his own use. The time referred to as the time when the money came into his possession means and includes the time necessary for the LARCENY. 1717 accused to discover and know the character and value of the property. Or if the jury find from all the evidence that the defendant learned or knew whose body it was from which the money was taken at tlie time it was taken, and that he knew any of her sons and daughters, and that he concealed the fact of his find- ing and possession from them, and that he intended to convert it to his own use at the time of taking possession of the money, or as soon as he discovered and knew the character and value of the property, then the jury should find the defendant guilty. 8. // defendant took money feloniously hut a short time. If the jury should under the above instructions find that defendant feloniously took the property as specifically covered by the law as given you, and that he kept possession of such money only for a short time, with the intent and purpose aforesaid, the jury are instructed that in the event that such be your finding, the crime of larceny would be complete, and that the gi^^ng up of the money to the officers of the law would not have any effect whatsoever. 9. Intent to steal. The intent to steal is an essential element in this case. The defendant must have intended to steal the money at the time it came into his possession to warrant con- viction. That is, it is essential that he must have formed such intent to convert the money to his own use at the time of taking it and after having had time to discover tlie character and value of the property. Intent is a condition of the inind \^liieh in many cases can be disclosed by the conduct, declarations and statements made by one acused of crime, from which inferences may be drawn. The court, therefore, charges the jury that in determining the intent of the defendant in this case, whether or not he intended to steal the money found upon the body of S. S. at the time it came into his possession, you may consider all the evidence touching his conduct during the time the accused had possession of the money; you may consider any and all state- ments made by him at the time he took the money, or at any 1718 INSTRUCTIONS TO JURY. and all times during which he had possession of the money^ all things said and done by him during that time, as disclosed by the evidence, together with each and all the facts and cir- cumstances admitted in evidence. If, under the evidence in the case and by application of the law given you, the jury find that the defendant took the money with intent to steal it, your verdict should be one of guilty, and in such case you will find the value of the money, and state it in your verdict. If, upon the evidence and the instructions of the court, you find that the defendant did not take the money with intent to steal it, your verdict should be one of acquittal.^ 1 State V. Osman, Franklin County Com. Pleas, Kinkead, J. Sec. 1942. Larceny — Short charge in. Gentlemen of the jury : Having heard the evidence and arguments of counsel when you have been instructed as to the law to be applied by you in this case it will be your duty to determine the ultimate fact whether the defendant did or did not steal the money, as charged in the indictment. The indictment charges that the defendant did on the , in this county, unlawfully steal, take and carry away certain money of the amount and value of dollars, the personal property of J. 0. E. The defendant, having plead not guilty of the offense charged, the burden is on the state to prove all the elements of the crime of larceny, beyond a reasonable doubt. It is your duty under the law, notwithstanding the indict- ment, to presume that the defendant is innocent unless or until the evidence rebuts that presumption. The theory of this rule of presumption is that you enter upon the consideration of the case, as if the defendant is innocent, so that you may fairly and impartially consider the evidence, without bias, prejudice or suspicion because of the indictment. If the evidence overcomes this presumption then the rule of evidence to be applied by you is the reasonable doubt rule. A reasonable doubt may be such state of mind on the part of the jurors, after having fairly and impartially weighed and LARCENY. 1719 considered all the evidence, that you may have an honest, sub- stantial feeling of uncertainty or doubt as to the guilt of the accused, and it rests upon some reasonable ground disclosed by the evidence. If there is nothing in the evidence that may fairly and reasonably cause you to have such a doubt, but on the contrary you may have such feeling in your minds that you have an abiding conviction of the guilt of the accused, it will then be your duty to convict him. If, however, you entertain a reasonable doubt, which is sub- stantial and not speculative, or captious, then you should acquit him. Wliat credibility shall be given to the witness or witnesses is within your exclusive province to determine. You will consider their demeanor, their interest, if any, or want of interest, the reasonableness or unreasonableness of their statements, in the light of all the facts and circumstances of the case. The statute defining the offense of larceny provides that who- ever steals anything of value is guilty of larceny. To steal means to take and carry away the property of another with a criminal intent to convert the same to his own use. The intent may be inferred from a wrongful taking and carrying away of the property. Anything of value as used in the statute com- prehends money, which is the charge in the indictment, as well as all kinds of personal property. The property must be wrong- fully taken from the possession of another person who either owns it or who has its lawful custody. The money alleged to have been in the possession of the prose- cuting witness, M. E., is claimed by him to be— part of it— to belong to his infant son— was, nevertheless, in the custody of M. E. himself ; so that if you find that it was taken from him in the manner in which I have described and was, part of it, his son's money, n(;vertheless,. it would constitute larceuy. Forms of verdict will Ix" furnislied you and it' you find the defendant guilty you will fix the amount and value of the property stolen. If you find him not guilty you will simply say so.^ 1 state f. , Franklin Co., Kinkead, J. CHAPTER CXIIL LIBEL AND SLANDER. SEC. SEC. 1943. Libel per se, defined. 1960. 1944. Libel delined — False and ma- 1961. licious publication injur- ing reputation. 1945. Libel — Another definition. 1962. 1946. Constitutional limitation of liberty of speech — Scope 1963. and extent thereof. 1947. Constitutional right of liberty of speech and of press — 1964. Another form — ]\Iay not trifle with right of repu- tation. 1948. Reasonable criticism may De 1965. made by newspaper. 1949. Duty of jury to decide wheth- 1966. er it has libelous tend- ency and effect — When. 1950. Publication construed by court as libelous per se. 1967. 1951. Jury to decide whether arti- cle published by plaintiff. 1968. 1952. What is a publication, and who are liable as pub- lishers. 1969. 1953. Truth as a defense, to be as broad as charge. 1970. 1954. Innuendo — Meaning ascribed thereby, for the jury. 1971. 1955. Financial condition of defend- ants. 1972. 1956. Good faith of defendants in 1973. making publication — To 1974. rebut malice. 1975. 1957. Malice in law, malice in fact. 1958. Damages — Compensatory and punitive. 1976, 1959. Publishing information re- ceived from others. 1720 Publication made to whom. Slander — Defamatory words must be spoken to some person. Words, when to impute a crime. Libel — Charge of altering cer- tificate — Meaning of words for jury. Privileged communications — \^'hether extended to member of examining school board. Libel — Reports of judicial proceedings — Privilege. Libel — Publication from re- port of examining com- mittee of county treas- urer. Comments upon report made with good motives. Statements made to officer in discovering crime privi- leged. Construction of words and un- derstanding of hearers. Effect of adding excusable words. Libel — Meaning of words for jury. Libel — JNIeaning of words. Kinds of malice in slander. Damages — Kinds of. Damages in libel per se — When testimony rebuts legal malice. Libel — Counsel fees allowed in compensatory dam- ages. SEC. LIBEL AND SLANDER. SEC. 1721 1977. Extent to which libel is pub- 1982. Measure of damages— Effect lished as affecting daui- of agreement to accept awps retraction. 1978. What constitutes libel to one 1983. Slander of candidate for of- in his business. fice. 1979. Measure of damages to one in 1984. Libel against one in his busi- his business. ness as bricklayer and 1980. Same continued — Character contractor— By bricklay- and extent of business, ers' union. and business reputation 1985. Same continued — Measure of to be considered. damages. 1981. Same continued — Effect of ab- 1986. Damages to be awarded in sence of malice — Mitigat- general, ing circumstances. Sec. 1943. Libel per se — ^Defined. Libel may be defined as follows: "Any false and malicious writing (and I include printing in the term) published of another is libelous per se when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hate or contempt, or hinder virtuous persons from associating with him, or which accuses him of crime punishable by the laws of the state, or charges him with conduct, the natural or ordinary results of which would be to prevent him from engaging in and pursuing his vocation or profession (as a teacher, for instance), or otherwise, and thereby deprive him of the earnings thereof, and which he otherAvise would have obtained." By publishing it is meant that the matter must be communicated to some otlier person or persons than its author. But the term should not be restrieted to tliis definition alone. We also use the term publication as signifying the matter pub- lished, as well as the act of publishing, and sometimes such an act of publishing as is wrongful.^ iVoris, J., in Carrier v. Findley, et al. Watson v. Trask, 6 0. 533- Cooley on Torts. 22.'), 26. Sec. 1944. Libel defined— False and malicious publication in- juring- reputation. A libel has been defined to be a wrong occasioned by writing or effigy. It has been held in reference to an individual injury 1722 INSTRUCTIONS TO JURY. to be a false and malicious publication against one, either in print or writing, or by pictures, with intent to injure his repu- tation, and to expose him to public hate, contempt, or ridicule. Indeed everything written or printed which reflects on the char- acter of another and is published without lawful justification or excuse is a. libel, w^hatever the intention may have been. Any written words are defamatory which impute to another that he has been guilty of any crime, fraud, dishonesty, im- morality, vice, or dishonorable conduct, or has been accused or suspected of any such misconduct, or which suggests that the person is suffering from an infectious disorder, or which has a tendency to injure him in his office, profession, calling, trade, or reputation. A libel consists in the abuse of that constitutional right by maliciously writing or printing, of and concerning another, any language or representation which is false, and the natural tendency and effect of which is to injure such other person in his character and reputation or business in the community where he lives and is known, or in any w^ay to lessen him in public esteem.^ 1 Dean v. Commercial Gazette Co., Hamilton county, Hunt (Saml. F.) J. Approved by supreme court. Sec. 1945. Libel — Another definition. A libel in reference to intentional injury may be defined to be a false and malicious publication against an individual, either in print, writing, or by pictures, with intent to injure his repu- tation, and expose him to public hatred, contempt or ridicule, or to degrade or lessen his standing and reputation in the com- munity, or to deprive him of the benefit of public confidence, or social intercourse. Indeed, any defamatory language written or printed of another, and published, which imputes to him dishonesty, immorality or dishonorable conduct, or which has a tendency to disgrace or calumniate him, or which imputes to him a want of integrity, or misfeasance or dereliction of official duty, involving moral turptitude, or which is calculated to disparage him in an office of profit, and diminish public confi- LIBEL AND SLANDER. 1723 dence in him, is libelous, and renders the person or persons so publishing: such language liable in damages to the person de- famed, unless such publisher prove the truth of the published matter, which he or it alleges that the libel is true.^ 1 Jones V. Ohio State Journal Co., Franklin county. Rogers, J. Sec. 1946. Constitutional limitation of liberty of speech — Scope and extent thereof. The bill of rights in the Constitution of Ohio declares that "no law shall be passed to restrain the liberty of speech or of the press." But the same instrument which guarantees the right freely to "speak, write and publish his sentiments on all subjects," declares that he shall also be "responsible for the abuse of the right," and that "every person for an injury done to him in his lands, goods, person or reputation, shall have remedy by due course of law. ' ' The liberty of the press, properly understood, is not, there- fore, inconsistent with the protection due to private character. It has been well defined as consisting in "the right to publish, with impunity, the t7'utJi, with good motives, and for justifiable ends, whether it respects government, magistracy, or individu- als." But this liberty or privilege can not be justified when it is exercised to publish libelous matter to the injury of another, unless its truth is pleaded and proved. Again, the publisher of a newspaper has exactly the same right, and is responsible to exactly the same extent for the abuse of that right, as any other citizen. His right and responsibility in the matter of a publication are no more and no less than that of others under like circumstances. Wliile editors as well as others have the full liberty to criti- cize the conduct and motives of public men, and to comment freely on the acts of the government, officers, or individuals, the discussion must be fair and legitimate. If one goes out of his way to asperse the personal character of a public man, and to ascribe to him base and corrupt motives, he nuist laintiff sets on the words, to show how they come to have that meaning, and also 1730 INSTRUCTIONS TO JURY. to sho"w how they relate to the plaintiff, whenever that is not clear on the face of them. The court instructs you that whether the meaning of the defendants, or any of them, who are found by you to have published said matter, by the language used, was what the several innuendoes aver it to be, is a question of fact for the jury, that is, whether such meaning was intended by the defendants. This question of fact, however, so submitted to you, namely, whether the meaning ascribed to the language by the several innuendoes averred in the petition, was the meaning intended by the defendants, or any of them, is to be considered by you only on the question of damages, as a matter of excuse in mitigation of punitive damages, and not as a defense that will prevent a recovery, if you determine that the defendants, or any of them, published the alleged matter in question of and concerning the plaintiff, and if you further find that T. 0. S. J. Co., if it published said matter, has not proved the truth of such matter. That is, you have the right to determine whether or not the meaning which the plaintiff ascribes to the words and statements, in the several innuendoes, was the meaning which the defendants intended. But such meaning which you may find the defendants intended, from the evidence, can only be used to mitigate the damages, if any, and not to aggravate or increase them.^ 1 Jones i\ Ohio State Journal Co., Franklin county. Rogers, J. Affirmed, by Cir. Ct. Sec. 1955. Proof of financial condition of defendants. Evidence has been offered by the plaintiff tending to prove the financial condition of some of the defendants, both at the time of the alleged publication and at the present time. Now, the purpose of this evidence, so far as it tends to prove the defendants' wealth, or any of them, at the time of the publica- tion, is to make proof of the influence which a publication by a person of wealth will probably have in a community and the consequent extent of the injury which a publication by a wealthy person may probably produce. You will consider this evidence, therefore, only for this purpose, and no other. The purpose of the evidence introduced tending to prove the defendants ' wealth, LIBEL AND SLANDER, 1731 or any of them, at the present time, is a circumstance to be considered by you in the matter of awarding punitive damages, if any, as against any of said defendants concerning whom the evidence has been introduced as to their wealth, if you find that they, or any of them, are liable to the plaintiffs ; as wealthy persons might slander others with impunity and pay the com- pensatory damages that might be awarded, and such payment would not deter this slanderous conduct. You will, therefore, consider such evidence only for the purpose of awarding puni- tive damages against the defendants, or any of them, whom you may find liable to the plaintiff, if the evidence justifies your awarding such punitive damages.^ 1 Jones V. Ohio State Journal Co., Franklin county. Rogers, J. Affirmed, by Cir. Ct. Sec. 1956. Good faith of defendants in making publication — To rebut malice. The defendants claim that in making the publication in question, they acted in good faith, after careful examination of the facts and circumstances on which they claim the news- paper article was founded, and that they believed the truth of the article so published, and in support of such claim evidence has been introduced of common and general rumors in the community prior to the article in question, and of publications in other newspapers, and of other facts and circumstances tending to show that they used care and caution before making the publication, in the way of investigations and the like. Now, the court instructs you that this evidence introduced by the defendants is admissible, not to prove the truth of the Matters and things about which the testimony has been given, but to rebut any actual malice on the part of the defendants, and to mitigate punitive damages. The court instructs you that such evidence is not admissible, and must not be considered by you, for the purpose of mitigating compensatory damages, but only, as ju.st indicated, of mitigating punitive damages, if an.v, which you may sfe fit to award ; for defendants can not reduce com- pensatory damages by proof of mitigating circumstances, except such a.s in their nature bear upon the question of the extent of 1732 INSTRUCTIONS TO JURY. the injury actually sustained. The court, however, instructs you that all those facts and circumstances introduced in evidence by the defendants, and tending to prove the truth of the alleged defamatory charges, the truth of which is set up in the second defense of T. 0. S. J. Co., if the truth is not made out, may be considered by you in mitigation of compensatory damages against the defendants, or any of them, whom you may find are liable to the plaintiff.^ 1 Jones V. Ohio State Journal Co., Franklin county. Rogers, J. Affirmed, by Cir. Ct. Sec. 1957. Malice in law — ^Malice in fact. If you find for the plaintiff, against one or more or all the defendants, the next question for your consideration is that of awarding damages. In this connection, the court desires to instruct you with regard to the two kinds of malice that may enter into a libel, sometimes called implied malice, and malice in fact, sometimes called express malice. Malice in law, or implied malice, is presumed from the publication of the article in question, but this does not mean that the publisher or pub- lishers had actual ill will, hatred or revenge against the plaintiff. It only means that from the character of the publication itself the law presumes that it was made without legal justification or excuse, that is, that it was maliciously done. Malice in fact, or actual malice, is held to mean personal hatred or ill will or revenge towards another, or a wanton and reckless disregard of the rights of another, or a desire or actual intention to injure another, while malice in law may exist in connection with an honest and laudable purpose. To malice in law, or implied from the defamatory character of the publication itself, there may be superadded by proof express malice, to increase the damages. The plaintiff claims that the defendants published the libelous matter in question, not only with implied malice, but also with actual malice towards the plaintiff, and evidence has been adduced on the part of the plaintiff tending to make proof of the existence of actual malice. Among other evidence on this LIBEL AJSTD SLANDER. 1733 subject, other publications in T. 0. S. J. subsequent to the alleged libel relied on in the petition, have been introduced in evidence, which plaintiff claims are of a like tenor to the publica- tion set forth in the petition. Now, the court instructs you that these subsequent publications and their introduction in evidence, so far as they are competent for the plaintiff, are admissible only for the purpose of reflecting upon the question of actual malice, if any, on the part of the defendants, or any of them, in publishing the alleged libelous matter mentioned and relied on in the petition as a ground of recovery. The court cautions you that such subsequent publica- tions can not be considered by you as a basis for giving independent damages, or as a foundation of a recovery in and of themselves, nor to increase the damages further than as they affect the degree of actual malice, if any, with which the libelous matter as set forth in the petition and relied on as a ground of recovery, was published.^ 1 Jones V. Ohio State Journal Co., Franklin county. Rogers, J. Affirmed, by Cir. Ct. Sec. 1958. Damages — Compensatory and punitive. The court instructs you that the damages which you may award, if the evidence justifies, are of two kinds, namely; com- pensatory, and exemplary or punitive damages. The object of the law in allowing compensatory damages as to make the plaintiff whole, that is, to compensate him for the actual injury which he has sustained to his character and reputation by reason of the alleged defamatory publication. Exemplary or punitive damages are such as may be awarded in case actual malice is proved. Such damages are assessed, if at all, on the ground of public policy, and not because the plain- tiff has any right to the smart money, as it is often called. But the object of the law, as the term implies, is to punish the wrong- doer in dollars and cents, and to give a warning to prevent the repetition of the wrong or a similar wrong to others, and the amount of .such exemplary damages, if any, is left to your judgment. The court instructs you that in awarding icompensatory damages, you may take into consideration, jis a part of such 1734 INSTRUCTIONS TO JURY. damages, reasonable counsel fees of the plaintiff in prosecuting his action, whether there are mitigating circumstances or not; and in awarding damages, whether compensatory and punitive, or compensatory alone, the amount thereof is not to exceed As heretofore stated, the publication in question being libelous per se, compensatory damages are presumed from the publication itself. It is true that there is no arithmetical standard for com- puting these damages. Character has no price in the market, as property has, by which the damages can be measured. It may not be easy to say what the damages are, but that does not relieve the jury from ascertaining and declaring what they are. if the injury has resulted to the plaintiff. Of course, it is not the idea of libel suits that the plaintiff is to make money or to speculate upon his reputation. ]\Iuch, therefore, is left to your sound judgment and discretion in the matter of awarding damages. It is for you to say how much the plaintiff's reputa- tion has been damaged, if at all. In estimating compensatory damages, it is your duty to take into consideration those mitigating circumstances, if any have been proved, which in their nature bear upon the question of the extent of the injury actually sustained. And, if the libelous publication was not made with actual malice, personal ill will, hatred, or some such feeling, you can only allow compensatory damages, ""out, if the defamatory publication Avas made with actual malice, then you may superadd exemplary damages to the compensatory damages awarded, in such amount as in your judgment the case deserves. In that connection, the court instructs you that if you determine that one or more of the defendants published the article, or caused it to be published, but without actual malice, and that others published the article with actual malice, you will by your verdict allow a recovery of an amount against all whom you find liable, as compensatory damages and a further amount against one or more, as exemplary damages, whom you may find published said article with actual malice, and liable to the plaintiff. LIBEL AND SLANDER. 1735 If you determine that those defendants whom you find liable, if at all, published said article without actual malice, you will award compensatory damages only. If you determine that all those defendants whom you find liable, if at all, published said article with actual malice, you may add to the compensatory damages, punitive damages against all such as above indicated. If you find for the defendants, or any of them, you will say so in your verdict. Upon retiring to your room you will select one of your number foreman, and upon arriving at a verdict your foreman will sign the same and you return with it into court.^ 1 Jones V. The Ohio State Journal Co., et al. Court of Com. Pleas, Frank- lin Co., O. Rogers, J. Affirmed, by Cir. Ct. Sec. 1959, Publsihing information received from others — Lia- bility therefor. A person receiving information from others, which if true would be injurious to the character or reputation of another, is not justified in publishing that information to the prejudice of that other person merely because he believes it to be true; he must not only have good reason to believe it to be true, but he must have published it from justifiable motives, and if it turns out to be untrue, and he acted without due diligence, and another is injured thereby, he can not therefore escape liability. There is no legal immunity in favor of anyone repeating libelous matter. He who republishes such matter takes the risk of its untruthfulness and liability for what injury it may cause.^ 1 Voris, J., in Carrier v. Findley, Summit Co. Com. Pleas; Cooley on Torts, 259 (* 220). Giving with the publication the name of the author is no protection. Haines v. Welling, 7 O. 2.53; Fowler v. Chichester, 26 0. S. 9; Dole v. Lyon, 10 Johns. 447. Sec. 1960. Publication made to whom. To constitute a libel, publication must be made to a person or persons other than the person against whom the libelous words are published. 1736 INSTRUCTIONS TO JURY. It would not be libelous for the defendant to send to the plaintiff a communication which would be libelous if sent to a person other than the plaintiff.^ iNye, J., in Stevens v. McBride, Summit Co. Com. Pleas. Sec. 1961. Slander — ^Defajnatory words must be spoken to some person. In legal contemplation, defamatory words do not constitute slander, unless they are spoken to some person or persons other than the individual concerning whom they are uttered. To say to one's face any derogatory or evil thing respecting him is no defamation, nor is it a publication in a legal sense to speak slanderous words to a person in a public place, and in the presence of or near to other people, if in fact the words thus spoken are not heard or understood by anyone excepting tiic individual to whom they are addressed. If, therefore, you should find from the evidence that the defendant in this case did use the language imputed to him by plaintiff, and that he uttered the same in the presence of the plaintiff and various other persons, but you further find that the words so spoken by him were not heard or understood by any one excepting the plaintiff, to whom they were addressed, then you are instructed as a matter of law that the acting of the defendant in so using said words was not slander, and the plain- tiff can not recover, and your verdict should be for the defendant.^ 1 D. F. Pugh, J. Lennon v. Rice, Franklin Co. Com. Pleas. Sec. 1962. Words when to impute a crime. To entitle the plaintiff to a verdict it must appear that the words which the defendant spoke imputed to the plaintiff the commission of some crime. If the defendant accused the plain- tiff of being a thief, or charged her of having stolen property of his, these words did charge the commission of a crime if there were no qualifying or modifying words used at the same LIBEL AND SLANDER, 1737 time and in connection with the terms "thief," or "steal," or stole, ' ' because stealing — larceny — is an indictable offense. But if the accusation is or was that the latter took money or any other property of the former, it does not impute a crime, unless other language is used to expand its meaning that far. That is, if you should find from the evidence that the defendant did not use the word "thief," or did not charge the plaintiff with having stolen the property or having committed a theft, but simply used language that she took the property, then such words would not in and of themselves constitute slanderous words, unless other words were used in connection with them to expand them so as to mean that he charged her with a crime. ^ 1 Pugh, J. Lennon v. Rice, Franklin Co. Com. Pleas. Sec. 1963. Libel — Charge of altering certificate — Meaning of words for jury. We can not say as a matter of law that the charge of altering the certificate, contained in the alleged article, is criminal, there being no published declaration that it was done with the intent to defraud, and no innuendo in the amended petition charging that intent. But we leave it to you to say, as a matter of fact, from the evidence, whether its effect was, or was not, to render the plaintiff contemptible in public estimation, or to injure his good name; whether or not the natural and ordinary effect would be to prevent him from engaging in his profession as a teacher, or be injurious to his feelings. Among other things, R. S., sec. 13083, defines forgery as: "Whoever falsely alters any certificate authorized by the laws of this state with the intent to defraud is guilty of forgery." ^ i Voris, J., in Carrier v. Findley, Summit Co. Com. Picas. Sec. 1964. Privileged communications — Whether extended to member of examining school board. As to the privilege of the mombers of the examining board, I will say to you that a member of the board of county cxiiTtiiticrs 1738 INSTRUCTIONS TO JURY. is a public officer who performs duties of the highest order. The law makes it obligatory on him to make an intelligent, honest, and thorough examination into the qualifications of every individual who teaches in the public schools of the county. The statute is emphatic on this point. No one can become such a teacher "until he or she has obtained from the board of examiners a certificate of good moral character, and that he or she is qualified to teach orthography, reading, writing, arith- metic, geography, English grammar, and the history of the United States, and possesses an adequate knowledge of the theory and practice of teaching, and, if required to teach other branches, that he or she has the requisite qualifications ; provided that after January 1, 1889, no person shall be employed as a teacher in any common school who has not obtained from such a board a certificate that he is qualified to teach physiology and hygiene, and further if at any time the recipient of the certifi- cate be found intemperate, immoral, incompetent, or negligent, the examiners, or any two of them, may revoke the certificate. * * * And when any recipient is charged with intemperance or other immorality, the examining board shall have power to send for and examine witnesses under oath. ' ' ^ The power so conferred, and the duties so imposed, create the right to make the most searching inquiry into the conduct, manners, qualifications, morals, intellectual potency of all persons holding certificates, or applying for one. This official discretion should be exercised with sincere, intelligent, and courageous fidelity, and every such teacher or applicant enters as a candidate or upon his public duties as teacher upon the express under- standing that his whole conduct, in the respects enumerated, is open to the scrutiny of the examiners and to the fair criticism of the newspaper press. To this end the communications and actions of the examining board in the legitimate discharge of their duties, exercised in good faith and reasonably, are privileged and should be fully protected. So any inquiries or communications made by a 3 Code, sec. 7829. UBEL AND SLANDER. 1739 member of a school board in the honest and faithful discharge of his duties, to enable him to act advisably in respect to the qualifications of the plaintiff as a teacher, and in respect to the certificate he held, or in respect to an expected examination for certificate, should be fully protected, unless he went beyond the domain of reasonable official conduct. And this protection should extend in this case to communications made to the state board of examiners. You are also instructed that if he found a teacher teaching in the public schools without a certificate, that it would be proper for him to call the attention of the board of education of the proper township to that effect. But it was no part of his official duty to publish in the newspapers of and concerning the plaintiff, any matter or thing implying praise or demerit, or respecting teachers or applicants for certificates. If he does so lie does it at his peril, as if he sustained no official relation to tlie public. His acts in that respect would be determined from the same standard as that applied to any unofficial person. In this respect he stands on the same footing, and incurs the same liability, that private persons do, but in the legitimate discharge of his official duties, exercised in good faith and upon reasonable grounds, his communications are privileged. A teacher or a candidate for examination as such, comes before the board of examiners with his habits and associations, mental and moral qualifications, in fact his whole character open for tlieir careful, intelligent scrutiny; the board could not dis- charge its official duties unless the door was open to Ihcm to enter upon a careful, and, where character is called in qu(^stion, a searching inquiry as to the qualifications of the teacher or candidate. To this end, not only must freedom of inquiry, dis- cretion, and communication be had as to all reasonable means of information, but there must be exemption afterwards from liability for words written or spoken in good faitli and in the honest belief of the truth, tlic making of which, if true, will be justified by the occasion, though it should turn out that it was untrue. All that the law requires in such cases is that the 1740 INSTRUCTIONS TO JURY. officers should act in good faith and reasonably under the cir- cumstances.- 2 Voris, J., in Carrier v. Findley, ct al. As to privileged cases, see Cooley on Torts, 246 (210). Sec. 1965. Libel — Reports of judicial proceedings — Privilege. You are instructed that a full, fair, and impartial report of the judicial trial had in open court, where the parties interested have an opportunity of ascertaining and vindicating their rights, may be published with impunity, providing that they are unaccompanied by malicious, defamatory comment. Reports of judicial proceedings in the absence of express malice, if fair, true, and accurate, and nothing more, are privileged; but as soon as any attempt is made at comment, or misstating the truth, the privilege is lost. * * * The publication complained of in the plaintiff's petition purports to be a report of the utterances of the judge of the court made in connection with, and as a part of, the judicial opinion delivered in the case then pending in court, wherein this plaintiff was plaintiff, and P. D. was defendant. Such matter, if fairly and truthfully reported and published, is privileged, provided it was done without malice and fairly stated what the court said on that subject. The defendants had the right to publish as part of the proceedings of the trial what the court said in delivering its opinion and deciding the case, provided it was done fairly and truthfully and without malice. The burden is upon the plaintiff to shoAV by a preponderance of the evidence that the alleged libelous matter contained in the publication is false. It must appear from the evidence that the court, in passing and delivering its opinion in the case of D. v. D., did not express the opinion attributed to it in the publication complained of, or that it did not fairly and truthfully report the case, or what the court said in delivering its opinion, before the defendant can be held liable. The fact that this publication was a report made through a correspondent, and the claim that the correspondent procured LIBEL ^LND SLANDER. 1741 the statement from another person, in no manner lessens the wrong of the defendant for the words which are libelous, malicious, and untrue/ 1 Gillmer, J., in Doyle r. Scripps Tub. Co., Trumbull Co. Com. Tleas. As to privileged communications, see charge in 10 O. S. 549; Cooley on Torts, 246 (210) et seq. Where the answer claims the publication to be privileged, and issue is joined thereon, whether or not the same is privileged is for the jury under proper instruc- tions. Post Pub. Co. V. Moloney, 50 O. S. 71. Whether the facts which render the publication privileged are establisheil by the evidence is a question for the jury. Id. 85. Sec. 1966. Libel — Publication from report of examining com- mitee of county treasurer. If you find that the extracts so pulilishcd were parts of a public record, and you should also find that the same were published from good motives and for justifiable ends, the defend- ant would have the right to publish the same and the law would protect him in that right ; and in determining the motives of the defendant, you should consider all the evidence before you, including the report itself, which is in evidence, and, if there were portions of this report which were exculpatory in their character, and these were omitted by the defendant in tlie pub- lication, you may consider this omission in determining the motive which prompted the defendant in making the pul)lieations of the extracts so published by him. * * * The defendant urges that the matters complained of were based upon these extracts, and were fair and proper comments thereon. This is denied by the plaintiff, and this brings you to the consideration of the language complained of in the petition. If you have found that the extracts referred to were parts of a public record, and were published in the manner and for the purposes stated, then as a inatter of law the defendant would have the right to make any fair and proper comments upon the extracts so published, and which would be fairly warranted by giving to the language embodied in the extracts it's fair and natural import, signification, and meaning; but he would have no right to go 1742 INSTRUCTIONS TO JURY. beyond that and give to the report by his comments a meaning and signification not warranted by the language used in the report. And if in such a publication of such comments in the report he so distorted the language thereof, or the natural import and meaning of that report, and the language used therein, in such manner as to wrongfully impute to the plaintiff malfeasance in office, or charged him with having unlawfully or wrongfully appropriated to his own use the money of the county whilst he was in office, or with having conspired with others so to do, and that the same was false, and you so find from the evidence, then the publication would be libelous and the plaintiff would be entitled to recover.^ 1 Johnston, J., in McMaster v. Caldwell. Sec. 1967. Comments upon report made with good motives, etc. But if the defendant, in publishing comments upon extracts from the report, acted from good motives and for justifiable ends, and his comments thereon were fairly warranted by the language of the report, then the defendant would be justified in so publishing such comments, and the plaintiff would not be entitled to recover in this action. * * * To show that defend- ant published such comments for justifiable ends he must satisfy you from a preponderance of the evidence that the same was published by him in good faith, for the purpose of protecting the interests of society and to produce purity in public affairs, or some other kindred purpose, wherel)y the general welfare of the community was to be promoted, and if you are so satisfied, then this would establish the fact that the same was done from good motives, and this would constitute a defense to this action.^ 1 J. R. Johnston. J., in McMaster r. Caldwell. Sec. 1968. Statements made to officer in discovering crime, privileged. Statements or inquiries made to an officer of the law or to others for the purpose of discovering a crime or of bringing a guilty person to justice are privileged and do not constitute LIBEL AND SLANDER. 1743 slander, provided they are made ou reasonable grounds, in good faith, honesty, and without malice, even though in fact they may be false and unfounded. You are, therefore, instructed, gentlemen, that you can not in your deliberations, for the purpose of establishing the plaintiff's charge of slander against the defendant, consider any statement or statements made by the defendant to the police officers for the purpose of securing an officer with respect to his suspicions that plaintiff had stolen or taken from his residence linen or other articles of value, provided such statements w^ere made without malice, and in an honest belief in their verity, and were also made for the purpose of securing the assistance of the officer with a view to the pro- motion of justice.^ 1 Pugh, J. Lennon i-. Rice, Franklin Co. Com. Pleas. Sec. 1969. Construction of words and understanding of mean- ing" by hearers. All of the words which it is charged the defendant uttered, having been spoken in one conversation at one time and place, they must be construed and interpreted together, and in con- nection with the surrounding circumstances. To constitute slander, the words used so taken and construed and in connection with the surrounding circumstances must have been understood by a third person or persons who heard them, if there were such persons, in the evil sense which the law requires ; that is, as imputing the commission of a crime. Prima facie, they will be "presumed to have been understood according to their common import, and as they would naturally impress the minds of the hearers or as the defendant meant them." Tt is a question whether the Avords used by the defendant, even if they were thus set out in the petition or their equivalent, are not ambiguous. Tf they are of doubtful meaning, and do not fairly and reason- ably, when taken and construed together, imply that the plaintiff was a thief, or bad stolen the property, it can not be said that they were slanderous.' 1 Pugh, J. Lennon v. Rice, Franklin, Co. Com. Pleaa. 1744 INSTRUCTIONS TO JURY. Sec. 1970. Effect of adding excusable words. If the words uttered by the defendant meant that the plaintiff committed an indictable offense, and that the plaintiff added to these words that the plaintiff was irresponsible mentally, or insane, or words to that effect, these words taken all together do not constitute slander ; if you find that to be the signification of all the words which were used by the defendant, then you are instructed that they charge merely an offense which was excusable. To charge a person with such an excusable offense is not actionable as slander.^ If the charge of a crime was not qualified or modified by other words used in connection therewith, they were slanderous and imputed a crime of a serious nature. If that was their import, they were calculated to cause great injury to the feelings and reputation of the plaintiff. Indeed the law deems language which imports such a crime when spoken in the hearing of a third person, or persons, as defamatory, as actionable in itself, and it will presume as the court and jury must presume, without any proof, that the plaintiff's reputation was thereby impaired. ^^ 1 The court said in this connection that he was in doubt as to whether or not the court or jury should pass on the meaning of the words set forth in the petition or proof, but finally committed the matter to the jury. 2 Pugh, J., in Lennon v. Kice, Franklin Co. Com. Pleas. Sec. 1971. Libel — Meaning of words for jury. It will be necessary for you to determine from the letters themselves whether the words and language used therein, imput- ing to the plaintiff that he has been guilty of any crime, fraud, dishonesty, or dishonorable conduct, or which have a tendency to injure him in his office, profession, calling, or trade. If you find from the evidence that the language used in said letters, or either of them, is such as to fairly and properly charge or impute to said plaintiff that he has been guilty of any crime, fraud, dishonest, or dishonorable conduct, or which have a tendency to injure him in his office, profession, or calling, LIBEL AND SLANDER. 1745 then they are libelous. Whether or uot the language complained of as libelous will bear the meaning ascribed to it by +he innuendo, whether such was the meaning intended, is a question of fact for the jury.^ 1 Nye, J. Stevens v. McBride, Summit Co. Com. Pleas. Whether lan- guage will bear the meaning claimed in the innuendo is a ques- tion for the Court, and whether that meaning was intended is for the jury. State v. Smiley, 37 O. S. 30; Boyle v. State, 6 O. C. C. 163; Gohen v. Cincinnati Volksblatt, 31 W. L. B. Ill; Dougherty V. Miller, W, 36; Getchell v. Tailor's Exchange, 26 W. L. B. 233. Sec. 1972. Libel — Meaning of words. It is for the jury to determine from the testimony the meaning of the words which are charged to have been published of the plaintiff; and in determining their meaning, you should con- strue them in their plain and ordinary sense, and take them to mean what persons of ordinary intelligence would take them to mean.^ Having thus determined their meaning, you should then say, was that meaning such as was reasonably calculated to injure the plaintiff's reputation, or expose him to ridicule, distrust, contempt, or hatred.- 1 Cassidy v. Brooklyn Daily Eagle, 138 N. Y. 239. 2 Wright, J., in Horton v. Enquirer Company. Sec. 1973. Kinds of malice in slander. There are two kinds of malice that may enter into a slander case. They are malice in law, sometimes called imputed or legal malice, and actual malice. Legal malice does not mean that the defendant had actual ill-will, or hatred, or a feeling •t revenge, or an unfriendly feeling against the plaintiff. Tf the slanderous words were spoken voluntarily and without legal excuse, they were, in the eye of the law, spoken maliciously. The law pre- sumes a wrongful intention — malice — when the words are shown to have been uttered without justifieation. Legal malice may be presumed without direct proof. Without e\Hdence legal malice is inferred when the slanderous words 1746 INSTRUCTIONS TO JURY. were not spoken on a justifiable occasion. If the words were spoken on a justifiable action, for instance, to an officer or others for the purpose of ascertaining^ about a supposed crime, if there was a legal excuse for speaking them, legal malice can not be inferred. Actual malice signifies actual ill-will, hatred, revenge, jealousy, and the like. This kind of malice must be proved as any other fact is, by evidence. The law does not presume it, and the jury can not infer it without evidence to warrant such an inference. To entitle the plaintiff to recover compensatory damages, it is not necessary that she should prove that the defendant was actuated by actual malice in speaking slanderous words.^ 1 Pugh, J., in Lennon v. Rice, Franklin Co. Com. Pleas. Sec. 1974. Damages — Kinds of. The question of damages will have to be considered by you in case you find for the plaintiff upon all the issues. There are two kinds of damages — compensatory and exemplary or positive damages. The object of the law in allowing the first kind of damages is to make the plaintiff whole for outraged feeling and for the injury to his character or reputation, whereby he was compelled to appear in one of the tribunals of his country and vindicate his character against aspersions upon him. If the evidence discloses that the defendant spoke the words set out in the petition, or words substantially like them in meaning, that he spoke them in the hearing of a third person, or persons, that he uttered them maliciously, in the sense of legal malice, and if you find that there are no mitigating circumstances, then he is entitled to such compensatory damages as in your judg- ment will make him whole for the injury to his reputation, and for outraged feelings, and including also a reasonable attorney's fee for prosecuting this suit. It is true that there is no arithmetical standard for com- puting these damages. Character has no price in the market as property has, by which the damages can be measured. It LIBEL AND SLANDER. 1747 inaj^ not be easy to say what the damages are, but that does not relieve the jury from ascertaining and declaring what they are if the injury has been to the plaintiff. Of course it is not the idea of slander suits that the plaintiff is to make money or to speculate upon his reputation. ]\Iuch is left to your sound judgment and discretion acting upon tlie evidence, and there is nothing that the court can say that will aid you. It is for you to say how much the plaintiff's reputation has been damaged. In estimating the damages it is your duty to take into con- sideration mitigating circumstances, if any have been proved. If the words were not spoken with actual malice, personal ill- will, hatred, or some such feeling, you can only allow com- pensatory damages. But if you tind that the alleged slanderous words were uttered with actual malice, then you may add exemplary damages. The whole are assessed, if at all. on the ground of public policy, and not because the plaintiff has any right to the smart money, as it is often called. The object of the law, as the term implies, is to punish the wrong-doer in dollars and cents, and to give a warning to prevent a repetition of the wrong or a similar wrong by others. The amount is left to your judgment.^ 3 From Lennon v. Rice, Franklin Co. Com. Pleas. Pugli, J. Compensatory damages cover injury to feelings, loss of business, expenses in vindi- cating character, 1 Disney, 482; mental suffering from loss of reputation, 21 W. L. B. 292. Sec. 1975. Damages in libel per se — When testimony rebuts legul malice. The only question, tlierefore, gentlemen of the jury, to be submitted to and determined by you is the amount of damages to be assessed against the defendants for the libel. The evidence offered here which tends to show actual malice on the part of J. C. J., who was the editor-, and wrote the article, ran not in law be considered as against tho otlicr defendants, or any of them. The uncontradicted testimony of tlic defendants, con- clusively shows that they entertained no actual ill-will or malice 1748 INSTRUCTIONS TO JURY. toward the plaintiff. This rebuts the legal malice which is presumed to follow from the libel complained of, because of its being libelous per se. The plaintiff is entitled to the verdict of the jury in this case for compensatory damages only. The article being libelous per se, the law presumes that the plaintiff has suffered damages from the publication thereof, without proof of any actual damage by him suffered. It has been stated to you, gentlemen, in argument, that no proof has been made of any actual injury, by loss of any friends, or that he was discharged from the army. You must not be misled by such argument, because, as I have stated to you, the plaintiff is entitled to damages without proof of any actual damage. By this is meant that because of this libelous article the plaintiff has been damaged in his reputation in a way whicji can not be measured in dollars and cents as property can be measured. The jury are therefore, as I have already stated, instructed and required to render a verdict in favor of the plaintiff, and against the defendants whom I have named, and you will assess such damages as in your best judgment you deem proper and right, taking into consideration all the facts and circumstances as developed by the evidence. The amount, that shall be awarded to the plaintiff is committed to the sound discretion of the jury. The court can only direct the jury as to the elements of damages which may be legally considered: First. The jury should consider the age of the plaintiff ; his family, and social relations. Second. You should consider his occupation and his official position, taking into consideration the effect of the libelous article had upon him in that capacity. Third. You should consider the question of whether or not the plaintiff suffered mental anguish or distress. Fourth. You are required by law to include in your verdict reasonable attorneys' fees to com- pensate him for the expense incurred in the prosecution of this case. In determining the amount included in your verdict by way of attorneys' fees, you will take into account the labor LIBEL AND SLANDER. 1749 incurred and the amount of time spent in the trial. You may also in assessing the damages consider the standing of the defendants; not for the purpose of enhancing the damages because of any wealth that they may have had, but you may only consider that by way of determining the weight of their opinion, as reflecting upon the damages that the plaintiff may have suffered. The aim and purpose of awarding compensatory damages is to merely compensate the injury, and not to enrich the party. Your verdict should not be influenced in the slightest degree by any feelings of prejudice against or in favor of any of the parties in this action by reason of any work in which they are engaged. Settle this matter fairly and honestly, as your conscience impels you, to do right, so that the scales of justice may evenly balance.^ 1 Reeve v. Wheeler, et al., Franklin Co. Com. Pleas, Kinkead, J. Sec. 1976. Libel— Counsel fees allowed in compensatory damages. "If the defendants published a paper in manner and form as alleged, and injury resulted to the plaintiff from and by reason of such publications, he will be entitled to recover such damages as he has directly sustained; and in estimating com- pensatory damages the jury may take into consideration and include reasonable fees of counsel employed by the plaintiff in the prosecution of his action. If the publication was made with a bad motive or Avicked intention, the jury may go beyond mere compensation and award vindictive, or punitive damages— that is, damages by way of punishment." ^ 1 From Finney v. Smith, 31 O. S. 520. Costs in clearing up the charge may be included, W. 316; 1 Disney, 482. Sec. 1977. Extent to which libel is published as affecting damages. The extent to which a libel is published may affect the amount of damages for injury done. If the libel is published to a large number of persons, and in a public place, that would have a 1750 INSTRUCTIONS TO JURY. tendency to cause a person against whom the libel is published more injury than if published to a single person and in a private house. ^ 1 Nye, J., in Stevens v. McBride, Summit Co. Com. Pleas. Sec. 1978. What constitutes libel to one in his business. A libel consists in the abuse of that constitutional right by maliciously writing or printing, of and concerning another, any language or representation which is false and the natural tendency and effect of which are to injure such other person, as in this case, in his business standing and reputation in the community where he lives and is known, or in his trade or business, and hold him up to ridicule or contempt, or in any way to lessen him in public esteem. It will be your duty to take the article submitted in evidence, read it carefully as a whole and in detail, and decide as men of judgment and experience whether, as contended by the plain- tiff, it had such a tendency and effect, or any of them, so far as tlie business reputation of the plaintiff or his calling or his trade are concerned, or whether, on the other hand, as claimed by the defendant, it can not be fairly said to have had such tendencies or effect, or any of them. If in your judgment the publication of the article had no such tendencies or effect as have been mentioned, it will be your duty to return a verdict for the defendant without pro- ceeding further in the case. If, however, by reason of the publication of the article, you should find that the plaintiff was injured in his reputation and trade, and has suffered a diminution of his business as a retail clothier, and has been otherwise injured in his business reputa- tion, then your verdict must be for the plaintiff, because it is a presumption of law that anything stated in such publication which is derogatory to the business reputation and trade of the plaintiff as alleged is false, and the law further presumes that the defendant, in publishing the same, intended to cause what- LIBEL AND SLANDER, 1751 ever injury naturally would and did result from such publi- cation.^ 1 From Cincinnati Times-Star Co. r. Kalin. Judgment affirmed (in favor of Kahni, 52 0. S. 662. Sec. 1979. Measure of damages to one in his business. It will be your duty next to consider whether your verdict, if for the plaintiff, shall be for nominal or for substantial damages. In this connection it will be necessary to deterininL' whether, under all the circumstances disclosed by the evidence, the plaintiff has suffered a real and substantial injury to his trade or business reputation, or whether he has suffered only what is termed in law as a nominal injury. Nominal damages may be presumed from the publication of libelous matter, but the question of the amount of such nominal damages must be left to the good judgment of the jury to be exercised upon all the evidence. The amount awarded for nominal damages must rest in the sound discretion of the jury and may not exceed one cent. The plaintiff contends that he has been greatly injured in his business reputation, and has lost a large number of customers, and has suffered a diminution cf his business to a great extent and has been otherwise injured in liis reputation. If you find that the plaintiff lias in fact not suffered any real or substantial injury in these respects, he is entitled to nominal damages only to vindicate his right. If the plaintiff suffered real or substantial injuries, as alleged, then he is entitled to receive sucli a sum as in your judgment would fairly compensate him for such loss. It may be regarded as settled in this state that in actions of tort involving malice, fraud, insult, or oppression, the jury may, in estimating com- pensatory damages, take into consideration the reasonable counsel fee of the plaintiff in prosecuting this action for the redress of his injuries against the wrong-doer, even when there are mitigating circumstances not amounting to a justification.' 1 From Cincinnati Times-Star Co. v. Kalin. Judgment aflirmed (in favor of Kahn), 52 O. S. 662. 1752 INSTRUCTIONS TO JURY. Sec. 1980. Same, continued — Character and extent of busi- ness, and business reputation to be consid- ered. In order that you may pass intelligently upon this question of damages, if any damages are to be awarded, it will be proper for you to consider the character and extent of the business in which the plaintiff was engaged, as well as his previous reputa- tion in such trade or business. The extent of an injury to one in his trade or business, or in his reputation in relation to such trade or business, must depend partly on the nature of the publication itself and partly on the character and extent of his business or trade. For instance, a man's reputation in business may be so good as to be firmly established in public confidence so that it can not well be injured by any such publication as that of which the plaintiff complains ; or it may be so bad as to be incapable of serious injury therefrom ; or, while good, yet not so firmly established in pul)lic esteem as to prevent injury resulting to it. The law presumes every man's reputation as a tradesman to be good until the contrary is made to appear. The testimony on that subject must be carefully weighed and con- sidered. If you find the publication a libel, as the term has been defined, it will be left to you after all to say to what extent, under all the circumstances and evidence, his reputation in business has been damaged thereby, and to what extent he has been damaged in his trade and business, subject only to the propositions of law which have been suggested by the court. A man's known reputation in the community, or general estimation in which he is held in the business community where he lives and moves and is known, while it is the resultant of the opinion of all, it is not the individual opinion of any particular person or persons. You will decide what the known reputation of the plaintiff was at the time of this publication, for in view of all the evidence you are limited to his business reputation, and you can not go into particular aets.^ 1 From Cincinnati Times-Star Co. v. Kahn. Judgment affirmed, 52 O. S. 662. LiIBEL AND SLANDER. 1753 Sec. 1981. Same, continued — Effect of absence of malice — Mitigating circumstances — EfiFect of acting upon fairly reliable information. There is no way of reaching a correct conclusion in cases like the one on trial except through the good judgment of the jury. The law, therefore, permits the jury to take such a view of all the facts and circumstances properly in evidence in the assess- ment of damages and as may appear fairly from the preponder- ance of the evidence. It may appear to you that the publication complained of was made only with such malice as the law implies from the mere doing of a wrongful act, which is recognized in the law as "implied malice;" or with an actual evil intent or express purpose to injure; or that it was not only false, but known to be so by the defendant at the time of tlic publication itself, or wantonly made without inquiry or information upon which the defendant was fairly justified in relying; or that there was nothing in the character, conduct, or position of the plain- tiff to palliate or excuse such publication. It may appear to you, on the contrary, that while the defendant may not convince you that he should escape the actual consequences of the alleged libelous matter, if wrongful in fact, yet there was no actual malice on the part of the defendant, no real or conscious intent to injure, no bad motive ; that though in fact false, the defendant in making the publication acted upon information on which he was fairly justified in relying; that there was more or less truth, or a greater or less approach to the truth in this publica- tion, or that there was something in the business reputation of the defendant, or in the methods of doing business, or in the character of the business itself, or in any reports which may have existed in police circles, or in the letter as introduced in evidence — any such information may have reached the defend- ant prior to the publication itself — to palliate in a greater or less degree, or excuse in a greater or less measure, thi' j^ubli- cation itself. In case you find all or any of llie circuTiistanees hist mentioned to have existed, while they do not make out a complete defense 1754 INSTRUCTIONS TO JURY. to entitle the defendant to a verdict, if you first find the publi- cation in fact to be libelous, they are yet matters which you have a like discretion to consider and diminish your assessment of damages accordingly, in case you award damages to this plain- tiff at all. These, in legal definition, are termed mitigating circumstances. In ascertaining whether there were mitigating circumstances, or whether there were aggravating circumstances, it will be proper for you to consider all the evidence, direct and circum- stantial, in order that you may reach a correct conclusion. It is the province of the court to instruct you of the law ; it is the province of the jury to analyze and weigh the evidence. It is the province of the court to pass upon the competency of the testimony; it is the province alone of the jury to weigh that testimony.^ 3 From Cincinnati Times-Star Co. v. Kahn. Judgment affirmed, 52 0. S. 662. Sec. 1982. Measure of damages — Effect of agreement to ac- cept retraction of publication. The defendant in its amended answer pleads as a second defense that an agreement was entered into by the plaintiff and defendant through counsel. It is a good defense to an action for libel that if, after the publication, the plaintiff agreed with the defendant to accept the publication of an apology in full for his cause of action, and that such an apology had been published. The burden of proof, however, in a defense such as is alleged in the amended answer, is upon the defendant to show that such an agreement was made, and that there was a good consideration for the same, and that it was carried out in good faith, and that the plaintiff so agreed to accept such retrac- tion in full satisfaction of any claim which he may have had by reason of the publication. The evidence on this point must be governed by the proposition of the law as I have indicated it.^ 1 From The Cincinnati Times-Star Co. t\ Kahn. Judgments affirmed (in favor of defendant in error), 52 0. S. 662. An offer to retract may be shown in mitigation. Newell, Def. p. 907, 144 N. Y. 144. LIBEL AND SLANDER. 1755 Sec. 1983. Slander of candidate for ofl&ce. There has been testimony submitted for your consideration tending to prove that whatever the defendant did say of the plaintiff and his business was said of him as a candidate to an elective office, and in commenting on the character of his fitness, abilities, and qualifications for the office ^or which he was a candidate. A candidate for office puts the character of his fitness, abilities, and qualifications in issue. His conduct and acts, whatever they may be, may be freely commented on and boldly censured, and statements made of a candidate for office in good faith by a voter, when made by one who has a reasonable ground to believe them true, and does so believe them to be true, are privileged, and no recovery can be had, unless the proof clearly shows them to have been maliciously made ; but malicious defamatory assaults on his private character, falsely imputing to him crime, can not be justified on the ground of criticism, nor claimed to be privileged. The character and reputation of a person who is a candidate for office is as sacred then as at any other time, and if one without probable cause states what is false and aspersive, he is liable therefor, as falsehood and the absence of probable cause amount in law to proof of malice. You will therefore carefully examine all the testimony before you, that you may know all the circumstances and conditions under which the words were spoken by the defendant, should you find they were spoken by him, the motive, object, and purpose, if any, he had in speaking them, and if you find such statements to have been made in good faith l)y him about the plaintiff as a candidate for office, that at the time he so made them he had a reasonable ground to believe them to be true, and did so believe them to be true, then such statements would be privileged and your verdict will be for the defendant.^ ij. L. Greene, J., in Nichols v. Fenn. 51 O. R. 588. .TudfrniPTit affirmed. A newspaper may discuss properly the hahits and qualifications of a candiflate for office. Hunt r. Bennett. 1!> \. Y. 173; State v. Balch, .31 Kan. 465. It will he liahle if it makes a false accuoa- tjon of crime. Bronson v. Bruce, 59 Mich. 467. 1756 INSTRUCTIONS TO JURY. Sec. 1984. Libel against one in his business as a bricklayer and contractor — By a bricklayer's union. It is libelous to falsely and maliciously charge a journeyman bricklayer, who holds himself out as capable of such service and seeking employment, to be an inferior workman, and it is likewise libelous to falsely and maliciously charge one who holds him- self out as a bricklaying contractor (capable and seeking such contract work as his occupation and business), as being a contractor who employs inferior bricklayers to do his work and thereby imposes on the owners of buildings for whom he does work as such contractor. The law presumes the reputation of plaintiffs to be good in respect to their trade or profession, and that they employ men who have the usual, ordinary skill of the trade they are serving in, until the contrary appears in proof. If you find that the defendants did in fact maliciously issue and distribute this circular, that it is false as to the essential charge, that the plaintiffs employed "inferior labor" and "inferior bricklayers," then the plaintiffs are entitled to recover damages therefor. The law authorizes you to assume that when one makes a false and libelous charge against another, which tends to do him an injury, he did so in malice. The defendants have offered proof as to the character of some of the work done by plaintiffs and their men before the issuing and distribution of the circular, which was not admitted to prove the truth of the circular because they did not, by their answer, make issue as to its truth, but it was admitted and is competent and proper to be considered as to the motive, malice, if any, on good faith they had in issuing and distributing the circular. If they honestly knew or had heard of said work, and believed in good faith that it was inferior work, and work caused by plaintiffs employing inferior workmen, then you should consider that fact as in mitigation of damages. If the jury find for plaintiffs on the proof according to the law as I have stated it, you should give such verdict as will LIBEL AND SLANDER. 1757 fairly and justly compensate them for the injury issuing and distribution of such libelous charge reasonably caused them as to their reputation, in respect to their trade and occupation, and for such annoyance and distress of mind as they may have suffered in consequence of such publication. And if you find there was malice in the purpose and act of the publication, you may also include in the verdict what you estimate as reasonable attorney fees for prosecuting this cause of action. And if the publication was done in such excessive degree of malice as that, in your judgment, compensatory damages are not a sufficient loss and punishment for the act done, then you may include in your verdict also such sum of money as you consider just to be recovered in the name of the plaintiffs for their benefit, as by way of a punishment of defendants, and to prevent a repetition of like publication. But, gentlemen of the jury, have a care that your verdict in this respect is just and reasonable, remembering that the law entrusts you with a large discretion in tliis respect. As punitive damages you can allow nothing, or whatsoever sum you deem just. On this question as to motive, malice, and the degree of it, consider all the facts in proof, including the original controversy of the parties and the matters between them occurring prior to the publication of tliis circular.^ 1 Morris L. Buchwalter, J., in P.ricklayeis' ITnion v. Parkor. An agreement between a number of persona not to work for a certain manufacturer, witli a view to oi)preKs or (lisal)le liim in his busi- ness, or constrain him to sul)mit to rules in its conduct, is unlawful. He lias a ripht to manajje his own affairs without interference from others according to his own will and discretion. The following authorities sustain plaintiff's right to damages for the conspiracy to destroy their business, and to an injunction against a repetition of the wrongs complained of, and show that the trial court committed no error against the defendants below, either in its general charge or refusal of special cliarges. Crum[) v. Commonwealth. 84 Va. 927; Baugliman r. TJichnioiid Typo. Union, Va. Law Journal. April 1887; S. C. 24 Central L. .7. 280; Carew V. Rutherford, 1(16 Mass. 1; Walker v. Cronin. 107 Mass. ry5r>\ 1758 INSTRUCTIONS TO JURY. Sherry v. Perkins, 147 Mass. 212; State v. Donaldson, 32 N. J. Law, 151; Van Horn v. Van Horn, 52 N. J. Law, 284; State v. Stewart, 59 Vt. 273; State v. Glidden, 55 Conn. 46, approved 20 Irish Law Times, 305; Mapstrick v. Ramge, 9 Neb. 390; Brace V. Evans, 3 Ry. and Corp. L. J. 561 ; Old Dominion Steamship Co. V. McKenna, 30 Fed. Rep. 48; Emack v. Kane, 34 Fed. Rep. 47; Casey v. Typographical Union, 45 Fed. Rep. 135; Coeur D'Alene, etc., Min. Co. v. Miner's Union, 51 Fed. Rep. 260; Toledo etc., Ry. Co. v. Penna. Co., 54 Fed. Rep. 730, 746. Sec. 1985. Same, continued — Measure of damages. If the distribution of the various circulars in proof, the vari- ous calls of certain of the defendants, and their demands upon the materialmen, were part of a combination by defendants to coerce the plaintiffs into a discharge of their apprentice, their brother, and the other non-union men, and the employment of union men, against their will, or otherwise with the intent to impoverish them and break up their contracting business, and you further find that defendants did threaten the respective materialmen, customers, and patrons of the plaintiffs with injury to their property by loss of a large portion of their trade if they refused to comply with defendants' demand; that such threat or threats did reasonably put said materialmen in fear, and yuU further find that by reason thereof defendants did intimi- date said materialmen so as to cause them to refuse to trade with and sell to the plaintiffs, or caused any of them to deal with plaintiffs on different conditions and terms than thereto- fore, to the damage of the plaintiffs, then the plaintiffs are entitled to recover such damages from the defendants. If the plaintiffs are entitled to recover upon each of the matters separately submitted to you, your verdict should be made up as follows : For inducing workmen to quit the service of plaintiffs, such damage, under all the proof, as fairly compensates them for the direct loss of such ser\ace. That loss would be the expense and value of time in procuring workmen to take their places, dif- ference of wages, if any, shown by the proof, for the equivalent service, and any direct damage by delay of work necessary in making the exchange of hands. LIBEL AND SLANDER. 1759 For injury, if any, by reason of defendants' conduct with materialmen, such damage as fairly compensates for loss of time, any extra cost, if any, for the time, sand, and brick, and their delivery, over what they would have cost them without any interference by defendants. And if you find for plaintiffs as to the brickwork of the Little Sisters of the Poor, the amount should be damages as fairly compensate for the loss of the work or contract, which should be estimated by deducting reasonable and probable cost, or what it was then worth to perform the contract, from the amount of plaintiffs' bid therefor. In estimating what it was worth, or what it would then cost, you are to assume that the work would have been conducted in what you deem would have been the reasonably prudent and ordinary Avay. You should also take into account the services of the plaintiffs to superintend it, and the ordinary risks and conditions of such enterprises. And by way of damages to be included in any amount you may find interest at the rate of six per cent, per annum from the time when such damage accrued to the day of , 19 — , the beginning of this term of court. If you find compensatory damages for the plaintiffs, and you further find that the defendant's caused the injuries complained of maliciously, then you )nay add thereto, as compensatory damages, such sum as you think just for plaintiffs' expense in employing counsel to prosecute this cause of action. No testi- mony is admissible to prove the value, but you have had oppor- tunity to estimate the same by actual observation of the service rendered by their attorneys. And now, if, in the judgment of the jury, the defendants ■were actuated by such excessive degree of malice that mere com- pensatory damages are not, in your opinion, sufficient loss to and i)unishment of the defendants, then the law authorizes you to include, as part of your verdict, such sums of money as you justly think ought to be recovered in the name and for the bene- fit of tlie j)laintiffs, as cxcnipbiry or Diinitive damages. The 1760 INSTRUCTIONS TO JURY. law leaves it wholly to the discretion of a jury whether any sum whatever, and if any, how much, should be added therefor. You will see to it that your care to administer justice in this respect will be in proportion to the large discretion which the law imposes on you, remembering that when you take from one to give to another as a punishment, it must only be in such sum as is just'.^ 1 Morris L. Buchwalter, J., in Bricklayers' Union No. 1 v. Parker, S. C. Judgments affirmed. See 31 W. L, B. 334. Sec. 1986. Damages to be awarded in general. It will be your duty further to consider whether your verdict, if for the plaintiff, shall be for nominal or substantial damages. In this connection it will be necessary to determine whether, under all the circumstances disclosed by the evidence, the plain- tiff has suffered a real or substantial injury as alleged in the petition, or whether he has suffered only what is termed in law a nominal injury. Nominal damages may be presumed from the publication of libelous matter, but the amount of such nominal damages must be left to the good judgment of the jury to be exercised upon all the evidence. The amount awarded for nominal damages must rest in the sound discretion of the jury and may not exceed one cent. The plaintiff contends that he has been greatly damaged by reason of such publication. If you find that the plaintiff has not suffered any real or substantial injury, he is entitled only to such nominal damages as I have indicated. If the plaintiff suffered real or substantial damages as alleged, then he is entitled to receive such a sum as in your judgment would fairly 'com- pensate him for such loss. It may be regarded, too, as settled in this state that in actions of tort, involving malice, fraud, insult, or oppression, the jury may, in estimating compensatory damages, take into consideration the reasonable counsel fee of the plaintiff in prosecuting this action for the redress of his injury as against the wrong-doer, even when there are mitigating circumstances not amounting to a justification. LIBEL AJS-D SLANDER. 1761 In order that you may pass intelligently upon the question of damages, if any damages are to be awarded, it will be proper for you to consider the character and reputation and standing of the defendant. The extent of an injury to a person's repu- tation or character must depend partly on the nature of the publication itself, and partly on the character and reputation of the party involved. The law presumes every man's reputa- tion to be good until the contrary is made to appear.^ If you find the publication a libel, as the term has been defined, it will be left to you, after all, to say to what extent under all the cir- cumstances and evidence his character and reputation have been damaged thereby, subject only to the propositions of law which have been given you by the court. There is no way of reaching an accurate conclusion in cases like the one on trial except through the good judgment of the jury. The law therefore permits the jury to take such a view of all the facts and circumstances properly in evidence in the assessment of damages, and measure such damages accordingly as may have been shown by the publication itself. You are to consider whether the publication complained of was made only with only such malice as the law implies from the mere doing of a wrongful act, which is recognized in the law as "implied malice," or with an actual evil intent or express purpose to injure ; or that it was not only false but known to be so by the defendant at the time of the publication itself, or recklessly made without inquiry or information upon which the defendant was fairly justified in relying in its publication. It may appear to you on tlie contrary, that while tlie defendant may not convince you that he should escape the actual conse- quences of the alleged libelous matter, if wrongful in fact, yet there was no actual malice on the part of the defendant, no real or conscious intent to injure, no bad motive; tliat, though in fact false, the defendant in mnkius; the publication acted upon information on which ]\v w;is fairly justified in relying; that there was more or less truth, or a greater or less approach to the truth in this publication to palliate to a greater or less 1762 INSTRUCTIONS TO JURY. degree, or excuse in a greater or less measure the publication itself. You may consider all those circumstances. It is no defense, nor even a justification, for a newspaper to publish a communication of and concerning another libelous of itself, but at the same time it is proper for the jury to consider all the circumstances connected with such publication in mitigation of damages.- 1 Blakeslee v. Hughes, 50 0. S. 490. 2 Dean v. Commercial Gazette Co., Hamilton county. Hunt (Saml. F.) J. Approved by supreme court. CHAPTER CXIV. MALICIOUS PROSECUTION. Sec. Sec. 1987. Essential facts to be found — 1995. Mai i c i o u s prosecution — Burden of proof. A complete cliarge. 1988. Probable cause defined. 1. Statement of claims. 1989. Malice may be inferred from 2. Burden of proof. See -sec. want of probable cause. . 1990. Advice of counsel. 3. Credibility of witnesses. 1991. Discharge by examining mag- See sec. . istrate — Prima facie evi- 4. Termination of charge — dence of want of proba- Dismissal sufficient. ble cause. 5. Probable cause — Burden of 1992. The prosecution must have proving — Defined — Infor- terminated. mation obtained by po- 1993. Measure of damages— Com- lice investigation. pensatory — Counsel fees G. Malice. — Exemplary damages. 7. Advice of counsel. 1994. Malicious injunction — Proba- ble cause for commenc- ing. Sec. 1987. Essential facts to be found — Burden of proof. The questions for the jury are: Did the defendant institute the criminal prosecution set out in petition, and thereby cause the arrest of the plaintiff without probable cause, as the term is hereafter defined ? Was he actu- ated by malice, either actual or implied? Did plaintiff suffer damages by reason thereby T To enable the plaintiff to maintain this action it must appear by a preponderance of the evidence that both malice and want of probable cause concurred, and the burden of proof rests upon the plaintiff to maintain both the alleviations of malice and want of probable cause.^ Tt will l)e sufficient for you to find any disputed fact proved if it be supported by a preponderance ol* the evidence.-'' iSee Cooley on Torts, 208 (181). 17r>:{ 1764 INSTRUCTIONS TO JURY. zCooley on Torts, 213 (184). 3 Voris, J., in Weber v. Viall, Summit Co. Com. Pleas. "An action for tort will lie when there is a concurrence of the following circum- stances: 1. A suit or proceeding has been instituted without prob- able cause therefor. 2. The motive in instituting it was malicious. 3. The prosecution has terminated in the acquittal or discharge of the accused." Cooley on Torts, 208 (181). Sec. 1988. Probable cause defined. Probable cause is defined to be a reasonable ground for sus- picion, supported by circumstances sufficiently strong in this case to warrant an impartial and reasonably cautious man — that is, a man of ordinary caution — in the belief that the plain- tiff was guilty of the offense with which he was charged, and set out in detail in the petition in dispute. The true inquiry for you to answer is not what were the facts as to the guilt or innocence of the plaintiff, but what ought the defendant have reason to believe in reference thereto at the time he instituted the criminal proceedings and caused the arrest of the plaintiff.^ So that in determining whether the defendant had probable cause or not, you should consider the question in reference to the facts and circumstances relating thereto, and which influ- enced him in causing the arrest and preferring the charges, as they were known, and as they reasonably appeared to be at the time, and not by the facts and circumstances as they have been developed since. ^ If you find there was probable cause, as thus defined, then you need go no further, and your verdict should be for the defendant ; but if you should find from the evidence that the defendant maliciously caused the arrest and preferred the charges against the plaintiff, without probable cause to believe that he was guilty of the offense alleged against him, then you should find for the plaintiff. 1 The burden of proof to show want of probable cause rests upon the plaintiff. Cooley on Torts, 213 (184); and will not be inferred from mere failure of the prosecution. Id. Kinkead, Torts, sec. 425. 2 Cooley on Torts, 211 (182), notes 3 and 4. MALICIOUS PROSECUTION. 1765 Sec. 1989. Malice may be inferred from want of probable cause. If the jury find from the facts k-.d circumstances proved on the trial, that the defendant liad not probahle cause as defined, and that lie did prefer tlie charges alleged in the petition and thereby caused the arrest and prosecution of the plaintiff, then you may infer malice from such want of probable cause. ^ But this inference is not conclusive, and must be considered in relation to the other evidence submitted to you bearing upon this issue,- so you are to take into consideration all the cir- cumstances given you in evidence relating to this branch of the ease in determining whether defendant was actuated by malice or not, and you should be controlled by the preponder- ance of the evidence.^ In common acceptance, malice means ill-will against a person, or express malice, but in the legal sense it denotes a wrongful act done intentionally and without just cause.* iCooley on Torts, 214 (185); Holliday v. Sterling, 62 Mo. 321; Hark- rader v. Moore, 44 Cal. 144; Roy v. Goings, 112 111. 662. 2 Ck)oley on Torts, 214 (185) and cases cited. 8 See Cooley on Torts, 214 (185). The burden is upon plaintiff to prove malice, Cooley on Torts, 214; Jordan v. R. R., 81 Ala. 220; Hinsou V. Powell, 109 N. C. 534. < Voris, J., in Weber v. Viall, Summit Co. Com. Pleas. Probahle cause is a reasonable ground for suspicion supported by circumstances suffi- ciently strong to warrant a belief that the person accused is guilty. Asli t\ Marlow, 20 O. 110. It depends upon the defend- ant's actual and reasonable belief. White v. Tucker, 16 0. S. 468, 470. Want of probable cause must be shown — the fact of acquittal does not sliow it. John v. Bridgman, 27 O. S. 22, 39. Want of probable cause, without malice, is not sufhcient to authorize the action. Kmerson v. Cochran, 111 Pa. St. 619. As evidence of malice the question of probable cause is wholly for the jury. Hicks V. Faulkner, L. R. 8 Q. B. D. 167; Quartz Hill Co. v. Eyre, L. R. 11 Q. B. D. 674. If facts are disputed, the question is for the jury, if undisputed, for the court. Cooley on Torts, 209 (181). "It ia generally the duty of the court, when evidence has been given to prove or disprove the existence of probable ciiiise, to submit to tlie jury its credibility, and what facts it proves, with instructions that the facts found amount to proof of probable cause or that thev do not." Stewart r. Sonnel)orn, 98 T*. S. 187. 1766 INSTRUCTIONS TO JURY. Sec. 1990. Advice of counsel. The defendant lias interposed the defense that he acted in good faith, and upon the advice of a reputable attorney. As to this defense you are instructed that the advice of counsel constitutes a defense to this action.^ If the defendant gave to his attorney a full and honest presentation of the facts bearing upon the guilt or innocence of the accused within his knowl- edge, or which by reasonable diligence could be ascertained by him, and which he has reasonable cause for believing he was able to prove, if the defendant acted in good faith and in ac- cordance with the attorney's advice, it would make no difference whether the attorney was mistaken in his opinion and belief as to the existence of probable cause, or whether the facts com- municated to the counsel constituted the offense (embezzlement) or not. The mistakes or errors of the counsel, so consulted, can not lay the foundation for damages against the defendant, if in other respect's he is not liable under the instructions just given to you.- 1 Barlight v. Tammany, 38 Am. St. 856 ; Johnson v. Miller, 82 la. 693 ; Jaggard on Torts, p. 621. "A prudent man is therefore expected to take such advice (of counsel) ; and when he does so and placea all the facts before his counsel, and acts upon his opinion, proof of the fact makes out a case of probable cause," etc. Cooley on Torts, 212. 2 Voris, J., in Weber v. Viall, Summit Co. Com. Pleas. All facts must have been communicated, 20 O. 119, 4 W. L. B. 1107, 16 O. S. 468, 30 W. L. B. 120; see Jaggard on Torts, 621. It is a question for the jury whether he acted bona fide on the opinion, believing that he had a cause of action. Cooley on Torts, 212 (No. 184), note 2. Sec. 1991. Discharge by examining magistrate — Prima facie evidence of want of probable cause. The fact that the examining magistrate discharged the plain- tiff because he did not find him guilty of the charge on which he was arrested, and the failure of the defendant to further prosecute the case, would be prima facie evidence that the crim- inal prosecution and arrest was without probable cause, and not conclusive evidence thereof.^ By prima facie evidence it MALICIOUS PROSECUTION. 1767 is meant such evidence as creates a presumption that these facts are established by it in the absence of any evidence to the con- trary. In other words, it is of sufficient weight to establish the disputed facts until they are rebutted or overcome by evidence to the contrary. But this presumption must yield to the weight of the evidence submitted to you, taking the whole of it.- 1 Parklmrst v. Masteller, 57 la. 474; Hale r. Boylen, 22 W. Va. 234; Bar- ber V. Gould, 20 Hun, 466; Sharpe v. Johnston, 76 Mo. 660. 2 Voris, J., in Weber v. Viall, Summit Co. Com. Pleas. The record of the magistrate is evidence at least to show the facts of the dis- charge of the plaintiff. John v. Bridgman, 27 0. S. 22; Cooley on Torts, 213. It is not such evidence as will alone sustain an action for malicious prosecution. Thorpe v. Balliett, 25 111. 339. Sec. 1992. Prosecution must have terminated. You are instructed that before the plaintiff can recover for the malicious prosecution of a criminal charge, it must appear from the evidence that the prosecution is at an end ; and it must also appear that the plaintiff was acquitted of the charge.^ The defendant having had his day in court in the trial of the charge complained of, it is but reasonable to require that he shall, by the result of the trial, show the criminal charge to be untrue before he can prosecute another action on the ground that such charg'^ was maliciously made.^ iFortman v. Rottier, 8 0. S. 550; Cooley on Torts, 215 (186) ; Cardinal V. Smith, 109 Mass. 159; O'Brien v. Barry, 106 Mass. 300. 2 Id. As to what kind of a determination will be sufficient to found suit on, see Jaggard on Torts, 610-11; Cooley on Torts, 215 (186). Sec. 1993. Measure of damages — Compensatory — Counsel fees — Exemplary damages. If you find the issues for the plaintiff, he will be entitled to recover compensatory damages at least. Compensatory dam- ages with reference to this subject means such sum as in your judgment, guided by the evidence, the plaintiff ought to receive for the injuries caused by the wrongful acts charged in the I)otition, and that you can fairly say from the evidence was the direct and ordinary result thereof to his reputation on 1768 INSTRUCTIONS TO JURY. account of mental suffering of the plaintiff, if such you find, and you may include as compensatory damages such amount as he was compelled to pay in the defense of the criminal action, and for reasonable time lost by reason of the arrest, and the defense he was required to make. You may also include reasonable counsel fees incurred by the plaintiff in the prosecution of this case. It is a matter very much in the discretion of the jury, but this discretion must be exercised reasonably, so as to compensate for the injury actually sustained and nothing more, unless you find this a case for exemplary damages. But if you find from the evidence that in committing the wrongs complained of i' involved the ingredients of actual malice, ir.tentional insult, and oppression on the part of the defendant, and the plaintiff had conducted himself in a reason- able manner under the circumstances, you may go beyond the rule of mere compensation and award exemplary or punitive damages; that is, such damages as will compensate him for the wrong done, and to punish the defendant, and to furnish an example to deter others. If you find this a case that warrants exemplary damages, the law fixes no limit to your discretion in that behalf as to the amount, except that it requires at your hands that your dis- cretion in that respect should be fairly, reasonably, judiciously and impartially exercised. It should be exercised without feel- ing, resentment or hasty consideration. And what, under all the circumstances, should be reasonable punishment is the true test.i 1 Nye, J., in Weber v. Viall, Summit Co. Com. Pleas. Sec. 1994. Malicious injunction — Probable cause for com- mencing. The mere commencing of said suit by the defendants against the plaintiffs, and obtaining said injunction against the plain- tiffs, would not, and does not, give the plaintiffs a right to main- tain an action against the defendants for malicious prosecution and for damages. In addition to that, the plaintiffs must MALICIOUS PROSECUTION. 1769 show by a preponderance of evidence that the said injunction was obtained by the defendants maliciously, and without prob- able or reasonable cause. These two points you are to decide as reasonable men, upon the evidence. Probable cause for the obtaining said injunction in such a state of facts, known to and influencing the defendants, as would lead a man of ordinary caution and prudence, acting conscientiously, impartially and reasonably, and without prejudice, upon the facts within the parties' knowledge, to believe or entertain a reasonable suspicion that they had the right to obtain and maintain the injunction. If you find that the defendants in this matter acted upon a reasonable ground of suspicion, that the plaintiffs had no right on said premises, while they, the defendants, had full right, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that defendants had a right to obtain and maintain said injunction, then they may find that there was probable cause for obtaining said injunction. Probable cause does not depend upon the actual state of the case, but upon the reasonable belief of the defendants that they had a right to obtain and maintain said injunction; but this belief will not constitute a defense to this action, if all the circumstances under which defendants acted clearly show that there was no probable cause for their acts in this behalf, and that their belief was groundless and could not have been formed without the grossest ignorance and negligence. That is to say, taking into consideration all the facts relating to and going to make up the claim of title of plaintiffs in said twenty -three acres, ■which was known to the plaintiffs, did they honestly believe, and had they reason to believe that plaintiffs had no title to any interests in said twenty-three acres that gave tlie right to open mines thereon and mine coal? If they did so lielievo and had reason so to believe from the facts of which they had knowl- edge, then you will find for the defendants on this cause of ac- tion. Otherwise you will proceed next to the question of malice.' 1 Samuel F. Hunter, J., in Newark Coal Co. v. Upson, 40 0. R. 17. Ap- prove0] ■ Coolev on Torts, 1R7. 1770 INSTRUCTIONS TO JURY. No action can be brought to recover damages for the malicious prosecu- tion of a civil suit where no rights of the plaintiff have been violated by seizure of property or invasion of liberty. Bartholomew V. Met. Life Ins, Co., 1 Oh. Dec. 267. (Hamilton, J., Cuyahoga Com. Pleas.) Sec. 1995. Malicious prosecution — Complete charge. 1. Statement of claims. 2. Burden of proof. 3. Credibility of witnesses. 4. Termination of charge — Dismissal sufficient. 5. Probable cause — Burden of proving — Definition — Infor- mation obtained by police investigation. 6. Malice. 7. Advice of counsel. 1. Statement of claims. The case is one of malicious prose- cution of a criminal charge, and the right which is injured by such a wrong is the right of reputation. The facts which plaintiff must establish in order to make out his case are the following: That he has been prosecuted on a criminal charge by the defendant, that the prosecution is at an end, and that it was instituted maliciously and without prob- able cause. 4. Termination of charge — Dismissal sufficient. Plaintiff must establish thajt the prosecution of which he complains was terminated. So long as the case is not ended one way or the other, either by acquittal or conviction, the outcome would be in doubt, and there could in such case be no right of action for malicious prosecution. A dismissal of a criminal proceeding or action in the police court is a sufficient termination of the cause in order to lay the foundation for the prosecution of such a case as this, the same as would an acquittal of the defendant. The evidence of such disposition of a criminal charge in the police court is competent to show the fact of the discharge of the plaintiff from the crim- inal charge. MAIilCIOUS PROSECUTION. 1771 5. Probable cause — Burden of proving — Definition — Informa- tion obtained by police investigation. The burden is on the plaintiff to show want of probable cause, because the presump- tion of law is that everj prosecution is founded upon probable cause and is instituted for the purpose of justice only. That presumption must be overcome by the plaintiff, and the mere fact of the dismissal of the action by the police court, or the acquittal, is not enough to overcome the presumption. Other evidence is necessary to show want of probable cause. Probable cause is a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious, prudent man in the belief that the person accused is guilty of the offense for which he is charged. That is, the question is whether the defendant had a reasonable ground for suspicion supported by the circumstances, by what had been reported to him by persons claiming to have knowledge of the fact, or by any report of an investigation made by police officers of the ease which came to his knowledge, if any did. If the defendant had such reasonable ground for suspicion, and if the same was supported by circumstances and reports of investiga- tions were sufficiently strong to warrant him as an impartial and reasonably cautious man in the belief that plaintiff was guilty of the offense, then he can not be held responsible for the complaint made in this case. It can not be expected that the defendant in making this criminal complaint should act upon facts personally known to him, but he may be allowed to act upon information which he obtains from others, if it is of a credible nature; if it is such as to warrant an ordinarily prudent person under similar cir- cumstances acting in good faith to believe that the plaintiff, under all of the facts and circumstances coming to his knowl- edge, was guilty of the crime charged. Prudence reciuired that the defendant in preferring the com- plaint, should make some kind of an investigation, such as would reasonably satisfy him of the trutli of the facts. It is for tlie jury to determine as a matter of fact, whether or not under all the circumstances of this ease the investigation that may appear 1772 INSTRUCTIONS TO JTJRY. to have been made as shown by the evidence was such as was reasonably necessary under the peculiar circumstances of this case. The defendant could not be expected to personally know all the facts and circumstances of the crime, and the public welfare demands prompt action in the prosecution of criminal cases. The jury may therefore consider the evidence as to the part taken in the investigation of the charge by the police and by the detectives of the city, in connection with all the other evidence upon the question of the existence at the time of prob- able cause and determine the fact upon the whole evidence. It depends largely upon the character of the information and upon the character of the person from whom the information is received whether it should be deemed reliable or not. That is why this case is submitted to the jury, for it to determine that fact along with the others, it being regarded as peculiarly within the province of the jury to determine whether or not the information which came to the defendant, and any advice that he may have properly received from counsel, was such as to warrant a reasonably prudent man in acting upon it and preferring this criminal charge. The reasonable ground, in order to form the basis of want of probable cause must be con- sidered by the jury as existing at the time the charge was made, and as it probably appeared to the defendant at that time, and not as it may have appeared afterwards, at any time afterwards in the light of subsequent developments. On the question of the existence of probable cause, while the jury may consider the testimony as to the innocence of the plaintiff of the charge made against him, still the jury is in- structed that if it should find aside from the question of inno- cence that the facts and circumstances made known to the defendant before, and at the time he filed the affidavit were such as to cause a reasonably prudent man in believing plain- tiff to be guilty of the crime, then the jury may find in such event that there was probable cause, and in such case your duty would be to render a verdict for the defendant and against the plaintiff. MALICIOUS PROSECUTION. 1773 6. Malice. Malice is an essential ingredient or character- istic of the wrong of malicious prosecution. Unless it appears that the defendant was actuated by malice in the prosecution or preferment of the charge against plaintiff, this action for malicious prosecution can not be maintained. Malice as used in law does not necessarily mean spite or ill will toward a particular individual. It means, on the other hand, an evil design in general, or the outgrowth of a wicked and depraved mind, a mind devoid of ordinary social duties; a mind which does not appreciate or regard the obligations to mankind in general, or to society. It is a term used to charac- terize reckless or wanton disregard of the rights of auotlier. Its general use in law is to express an act done without any sufficient reason, without any lawful excuse, when the act proves to be wrong in itself. ]\Ialice in law is that which may be in- ferred from the unlawful act which is done wilfully and pur- posely but without any motive to injure another, or wliere the act is done through mere wantonness or gross carelessness. If the jury should find in this case that there was probable cause for making the charge, then it could find no malice. If the jury finds that the defendant in making the charge acted without probable cause, according to the meaning of the term given if, then it would be warranted in inferring from such want of probable cause that the preferment of the charge by the defendant against the plaintiff was done with malice. 7. Advice of counsel. The defense in this case is tliat the defendant acted upon the advice of counsel. Concerning this claim the jury is instructed that the advice of counsel consti- tutes a defense to tl.is action. If it sliould appear from the evidence that the def.-ndant gave to the attorney, the prosecut- ing attorney of the police court in this case,— a full and honest presentation of the facts bearing upon the guilt or iiuiocvnce of the accused, witliin his knowledge, or which by reasonable diligence could be ascertained by him, and which he hnd rea- sonable cause for believing lie was able to prove, if the defendant acted in good faith and in accordance; with the attorney's ad- 1774 INSTRUCTIONS TO JURY. vice, it would make no difference whether the attorney was mistaken in his opinion and belief as to the existence of probable cause, or whether the facts communicated to counsel constituted an offense or not. Mistakes or errors of counsel so consulted can not lay the foundation for damages against the defendant, if in other respects he is liable under the instructions given you by the court. The question for the jury then is whether defendant laid before the police prosecutor, to whom he went for advice, and who called the defendant to his office, as it appears in the evidence, all the information that he reasonably could obtain in regard to this alleged offense. If he did, or if it should appear in evidence that the police prosecutor himself gave directions to certain officers of the police court to make investigations into this alleged crime, and that they were re- ported to the police prosecutor, and the same afterwards came to the knowledge of the defendant, and if upon all that was communicated by either the officers or by the defendant in this case to the police prosecutor, and if all that was so communi- cated in either way was all that could have been reasonably obtained under such circumstances, and if it should appear that the defendant acted in good faith in seeking and relying, if he did rely on the advice of the prosecutor, then the jury is in- structed that that constitutes a complete defense to the charge made by the plaintiff in this ease.^ ] Berg V. Eichenlaub, Franklin Co. Com. Pleas. Kinkead, J. These instruc- tions contain new elements concerning the obtaining of information from police investigation as reflecting upon probable cause. The case did not go farther. CHAPTER CXV. MALPRACTICE. SEC. ^'^'^" 1996. Care required of physician. 4. Express consent after 1997. Duty of physician to use rea- physical examination. "sonable and ordinary 5. Authority to do what rea- care — Another form. sonably necessary to save 1998. Contributory negligence of life. patient. 6. Patient chargeable witii 1999. Liability of surgeon for per- acts of preparation. forming operation with- 7. Care by physician after out consent. operation. 1. Consent presumed unless 2000. Liability of physician for iii- concealment of facts. juries caused by use of 2. Consent essential. X-Rays. 3. Presumed by submission to operation. Sec. 1996. Care required of a physician. You are instructed that a surgeon or physician who offers his services to the public that he impliedly agrees with those who employ him that he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by persons engaged in that profession, sufficient to qualify him to engage in that profession. A surgeon assumes to exercise the ordinary care and skill of his profession, and is liable for in- juries resulting from his failure to do so.^ The implied contract which the physician or surgeon thus enters into does not extend to an agreement that he will cure, but only that he will employ such reasonable skill and diligence as are ordinarily exercised in bis profession by physicians. The law does not, however, require the highest degree of skill and science. The standard must be a practical and attainable one.= He does not undertake for extraordinaiy care or extraordinary diligence any more than he does for uncommon skill. 1775 177fi INSTRUCTIONS TO JURY. In Stipulating to exert his skill and apply his diligence and care, he contracts to use his best judgment.^ iGeiselman v. Scott, 25 0. S. 86; Jaggard on Torts, 910; Cooley on Torta, 778 (649). 2 Jaggard on Torts, 912; Cooley on Torts, 778 (649). 3 Leighton i\ Sargent, 27 N. H. 460. "As the promise is not different in the case of tlie physician and surgeon from what it is in the case of the attorney, etc., one general rule may be given." Cooley on Torts, 777 (648). Sec. 1997. Duty of physician to use reasonable and ordinary care — ^Another form. The jury is instructed that the legal responsibility of a phy- sician is such that he contracts with his patient that he has the ordinary skill of members of his profession in a like situa- tion, that he will exercise ordinary care and reasonable diligence in his treatment of the case, and that he will use his best judg- ment in the application of his skill to the case.^ A physician and surgeon is required to exercise that degree of knowledge and skill and care which physicians and surgeons practicing in similar localities ordinarily possess. In other words, a physician is held to that care and skill which is exercised generally by physicians of ordinary care and skill in his and similar com- munities. The physician is not chargeable w'ith negligence for failure to use the best skill and ability if he uses the care and skill which is exercised generally by physicians of ordinary care and skill in similar localities.- The physician is not an insurer; he does not warrant a favorable result. The practitioner can not be expected to know, or be bound to know or to diagnose correctly, that whicli is unknowable.^ iHenslin r\ Wheaton, 91 Minn. 219: 1 Ann. Cas. 19. 103 Am. St. ,504. 64 L. K. A. 126; Gore v. Brockman. 138 Mo. App. 231; Sauers v. Smits, 49 Wash. ,5.57, 95 Pac. 1097, 17 L. R. A. (N.S.) 1242. 2 Hales V. Raines, 146 Mo. App. 232, 130 S. W. 425. 3 Henslin v. Wheaton, supra. Sec. 1998. Contributory negligence of patient. If you shall find that the defendant directed the plaintiff in observe absolute rest as part of the treatment to said foot, and .M.i.i^i'uA(j'iicK. 1777 that direction was such as a surgeon or physician or ordinary skill would adopt or sanction, and the plaintiff negligently failed to observe such direction, or purposely disobeyed the same, and that such neglect or disobedience approximately contributed to tlie injuries of which he complains, he can not recover in this action, although he may prove that the defendant's negligence and want of skill also contributed to the injury. This grows out of the doctrine that a party who "has directly, by his own negligence or disregard of duty, contributed to bring an injury upon himself, can not hold other parties wlio have also con- tributed to the same responsible for any part thereof, nor does it make any difference that one of the parties contributed in a much greater degree than the other; the injured party must not have contributed at all.^ 1 Approved in Geiselman r. Scott, 25 0. S. 86. Sec. 1999. Liability of surgeon for performing operation without consent. 1. Consent presumed unless concealment of facts. 2. Consent essential. 3. Presumed by submission to operation. 4. Express consent after physical examination. 5. Authority to do what reasonably necessary to save life. 6. Patient chargeable with acts of preparation. 7. Care by physician after operation. 1. Consent presumed unless concealment of farts. Consent of a person voluntarily submitting to a surgical operation is pre- sumed, unless there are such circumstances sliown by the evi- dence as show that she was the victim of a false or fraudulent misrepresentation, or of such concealment of facts as would deceive. Tf, therefore, such a false or fraudulent misrepre- sentation or deception is relied upon in this case, then sucli fact or facts should be established 1)y llic plaintiff l)y ])r()(ir. Ilic same as any other material fact relied upon by tlie plaintiff. 2. Consent essential. Tt is my duty to charge you that the consent of the plaintiff was necessary before the defendants or 1778 INSTRUCTIONS TO JURY. either of them could lawfully perform the operation which was performed. If such consent were not given, then the defend- ants had no right to operate upon her in the manner complained of, whether the same was necessary and advisable or not. 3. Preswned by submission to ojycration. But if there was no misrepresentation as to the nature of the operation and she submitted herself to the physicians for an operation, then her consent will be presumed to the performance of such operation as was reasonably necessary to save her life and to protect her from continued and serious illness. 4. Express consent after physical examination. Furthermore, even if you find the fact to be that Dr. B. did advise the plain- tiff before she went to the hospital that the only operation necessary or that would be performed would be a minor opera- tion which would not necessitate the use of a knife, yet, if after she went to the hospital an examination was made and she was there informed that certain organs might have to be removed to save her life and she then gave her consent to such operation, then the previous representations are immaterial and such pre- vious representations will not render the defendants or either of them liable, because all such previous representations were waived by her, if, after learning that a more serious operation was necessary, she gave her consent. 5. Authority given to do what reasonably necessary to save life. If the plaintiff here could not appreciate and did not know her own condition, or the ailments with which she was afflicted, and if she placed herself in the care and hands of the defendants here and authorized them to do what was reasonably necessary from their knowledge and skill as physicians to save her life or to restore her health, then such a submission on her part, in the absence of any other restrictions upon the physician, demanded and inade it incumbent upon those physicians to do such things and perform such operation as by the nature of the case and by the exercise of proper skill and knowledge as physicians, was necessary to save her lifp. or to protect her from continued and serious illness. And the failure of physicians, MALPRACTICE. 1779 under such circumstances to have so operated would have been valid grounds for a suit against them in malpractice. Consent may be given either by words or you may find consent to have been given by acts. This question of consent is to be deter- mined by you from all the facts and circumstances surrounding the operation itself, and those which precede as well as those which follow it. If the consent of plaintiff was given for an operation to a mere limited extent, and she either forbid or did not consent to the removal of the other parts of her body, then the physicians are bound to follow that limitation and the con- sent to a limited treatment could not be interposed to excuse the defendants or justify them in performing some other and dif- ferent operation. 6. Patient chargeable with acts of preparation for operation. With reference to the testimony and evidence here concerning the nature and extent of the preparation made for this opera- tion, the plaintiff is chargeable with a knowledge and under- standing of so much and to such extent as she under all the facts and circumstances surrounding her ought and necessarily would know and understand, and no further. In speaking of consent, I refer only to the consent of the plaintiff ; as the consent of any other person, relative or friends of the plaintiff, was not necessary. 7. Care by physician after operation. As to the claim of negligence in the care and treatment of the plaintiff after the operation these physicians are chargeable w'ith that degree of care and skill which physicians and surgeons, exercising care, would ordinarily exercise in the treatment of a patient under similar circumstances. In determining whether the defendants exercised proper care and skill, you will consider the nature of this operation, and its results, and if yon find they exercised such care and skill in the treatment of the wound after the operation as surgeons of ordinary skill and caution would exercise for the cure of a patient nnder similar circumstances, then there is no liability on account (»f the treatment of the wound. 1780 INSTRUCTIONS TO JURY. You are not to conclude from the mere fact that the plaintiff has a rupture and suffers from other ill effects of the operation that these effects are due to the negligence of the defendants in treating the wound. If such effects resulted not from negligent treatment, but are the results of the nature of the operation itself, and you find the plaintiff consented to the operation, then there is no liability on account of the after treatment of the wound. If such effects are due to the negligence of the defend- ant as alleged, then they are liable.^ 1 Cuthriell v. The Protestant Hospital, a corporation, and W. J. M. and J. W. B. Court of Com. Pleas, Franklin Co., 0. Bigger, J. On subject of consent to operation, see Bennan v. Parsonnet, 83 Atl. 948 (Sup. Ct. N. J.), citing Kinkead, on Torts, sec. 375. See also 111 Am. St. 468. Sec. 2000. Liability of physician for injuries caused by use of X-Rays. The jury is instructed that when a physician holds hiroself out to the public as qualified in the use of the X-ray for treat- ment and diagnosis of ailments, the law implies on his part the promise and duty to exercise reasonable skill and care in such use. In other words, he undertakes to use in this particular branch of the profession the same degree of care and skill re- quired of physicians and surgeons generally and ordinarily used in other branches of the profession. The use of the X-ray in the diagnosis and treatment of human ills is recognized and practised by the medical profession, and therefore the same rule and measure of care is required of such practitioners in this line of the profession as is applied to other practitioners.^ 1 Sweeney v. Erving, 35 App. Cas. (D. C.) 57; Hales v. Raines, 146 Mo. App. 232; Shockley v. Tucker, 127 la. 456, 103 N. W. 360, Am. Ann. Cas. 1912, C. p. 1124, note. Sauers v. Smits, 49 Wash. 557, 95 Pac. 1097, 17 L. R. A. (KS.) 1242. CHAPTER CXVI. MANSLAUGHTER. (See also Homicide, :\Iurder First and Second Degree.) SEC. SEC. 2001. Manslaughter — By negligent 2003. Negligent driving of automo- driving of automobile — bile as forbidden by stat- A complete form of in- utes constitutes raan- structions (See detailed slaughter, headings of subjects in 2004. Contributory negligence of text ) . deceased no defense in 2002. Charge of manslaughter by manslaughter caused by one attempting to arrest neglect of driver of au- another. (See headings tomobile. at sectional heading. ) Sec. 2001. Manslaughter — By negligent driving of automo- bile — A complete fonn of instructions. 1. hit rod net ion. 2. Plea, and burden of proof. 3. Presumption of innocence. 4. Reasonable doubt. 5. Credibility of tritncsses. 6. Same — Opinion as to speed not deemed contradictory as affecting credibility. 7. The charge in the indictment. 8. Laiv of manslaughter — Statute — Meaning of "unlawfully hills" — Kinds — Involuntary — Malice — Intent. 9. Unlawful act, one prohibited by law. 10. Statute as to speed of automobile. 11. Opinion, evidence as to speed. 12. Alternative finding as to rate of speed. 13. Violation of statute by excessive speed must he proximate cause of death. 14. May find defendant guilty of assault and battery. 1781 1782 INSTRUCTIONS TO JURY. 1. Introduction. Gentlemen of the jury: You have heard the evidence and the arguments of counsel and it is now the duty of the court to give you such instructions as to the law applicable to the evidence in this case which will guide you in the determination of the issues of fact presented to you for decision. 2. Plea, and hurden of proof. The defendant is indicted for the crime of manslaughter. He has entered a plea of not guilty. That is, he denies each and all of the essential elements charged in the indictment which constitutes the crime of manslaughter. That imposes upon the state the burden of proving all those elements to your satisfaction and beyond a reasonable doubt, which is the degree and measure of proof necessary to be ap- plied by you in your consideration of the case in arriving at a verdict. 3. Presumption of innocence. The law presumes, however, in all criminal cases that the defendant is innocent of the crime until he is proven guilty ; that is, it is your duty under the law, notwithstanding the indictment, to presume that the defendant is innocent unless or until the evidence rebuts that presumption. The theory of this rule of presumption is that you enter upon the consideration of the case, as if the defendant is innocent, so that you may fairly and impartially consider the evidence, without bias, prejudice or suspicion because of the indictment. If the evidence overcomes this presumption, then the rule of evidence to be applied by j^ou is the reasonable doubt rule. 4. Reasonable doubt. A reasonable doubt may be such state of mind on the part of the jurors, after having fairly and impartially weighed and considered all the evidence, that you may have an honest, substantial feeling of uncertainty or doubt as to the guilt of the accused, which rests upon some reasonable ground disclosed by the evidence. If there is nothing in the evidence that may fairly and reasonably cause you to have such a doubt, but, on the contrary, you may have such feeling in your minds that you have an abiding conviction of the guilt of the accused, it wall then be your duty to convict him. MANSLAUGHTER. 1783 If, however, you entertain a reasonable doubt, which is sub- stantial and not speculative, or captious, then you should acquit him. 5. Credibilittj of ivitnesses. The credibility of witnesses is within your exclusive province to determine. You may con- sider their demeanor while on the witness stand, their interest, if any, they have, or want of interest, any bias or prejudice which they may display, if you find that they do show such qualities, their ability to learn, know^ and recite the matters to which they may testify, the reasonableness or unreasonableness of their statements, the probability or improbability of their testimony in the light of all the facts and circumstances dis- closed by the evidence. 6. Same — Opinion as to speed not deemed contradictory os affecting credihility. The law in respect to the opinions of witnesses concerning a question of speed is such that this class of testimony is of such character and nature that the testimony of witnesses concerning rates of speed is not to be deemed con- tradicted for purposes of affecting their credibility, so that their credibility is not necessarily affected by the testimony of others whose opinions are different.^ 7. The charge in the indictment. The indictment in this case charges that the defendant, W. J. W., late of said county, on or about the day of , in the year of our Lord one thousand nine hundred and , within the county of aforesaid, unlawfully did kill one H. H., then and there being. 8. Laiv of manslaughter — Statute — Meaning of ''unlawfully kills" — Kinds — Involuntary. The jury will now be instructed concerning the law relative to the crime of manslaughter. The statute of Ohio reads as follows: "Wlioever (excepting in the preceding sections defining mur- der in the first and second degrees) unlawfully kills another is guilty of manslaughter."^ "Wli.'it constitutes manslaughtfr under the statute, therefore depends upon what the word "unlawfully" means. 1 Moore on FactH, sec. 120; Railway t'. Waxclhaimi. Ill Ca. S12. 2 Code, Bcc. 12404. 1784 INSTRUCTIONS TO JURY, We construe the meaning of the word by the principles of the common law, — the law established by the courts, — ^before and since the enactment of statutes. The common law definition of manslaughter was as follows : ' ' The unlawful killing of another, without malice, either express or implied ; which may be either voluntarily, upon a sudden heat, or inadvertently, but in the commission of some unlawful act. ' '^ The courts have held that the statute originally enacted in this state was the crime of manslaughter as it was understood at the common law.* And while this statute has been since changed to read in its present form, the evident construction placed upon it is such as is given in the light of the common law, and the court of last resort in this state as late as 1902 has declared that the present section defining manslaughter is not difi'erent in substance from the original enactment in this state which was the common law definition above stated ; that the present section is not different in substance and meaning from the common law, and that to ascertain the elements of the crime of manslaughter, we must look to the original enactment as it stood before revisions of statutes. Therefore, in any ease of manslaughter, and in the one at bar, it is encumbent upon the state to show that the killing was done unintentionally while the defendant was in the commission of some unlawful act. We have, therefore, the two kinds of manslaughter, voluntary and involuntary. The kind of manslaughter charged in this indictment is in- voluntary, or an inadvertent killing while the person charged, was engaged in the commission of an unlawful act. In this kind of manslaughter, malice is not essential, nor is intent to kill essential. The only kind of intent involved in involuntary manslaughter is such as may be inferred by the jury from the mere commission of an unlawfiil act. And the rule of law in such cases is that every one intends the natural and ordinary consequences of his own act 9. Uvlatrfid act. one prohihited Irij lav. Now, the unlawful act contemplated by the statute describing the crime of man- 3 Sutcliffe V. State, 18 Ohio, 469, 476. MANSLAUGHTER. 1785 slaughter, the commissiou of which gives color aud character to the unintentional killing, is an act prohibited by law; that is, by a statute enacted by the legislature of the state.^ No act or omission is punishable as a crime in Ohio, unless the same is specially enjoined or prohibited by the statute of the state." The word "unlawful" used in the statute meaning the violation of a statute will embrace and include an unintentional killing if such act be committed while engaged in the violation of the provision of a statute making the acts forbidden penal or crim- inal in their nature. 10. Statute as to speed of automohiles. Now the violation of the statute of the state upon which this prosecution is based, in addition to that prescribing the crime of manslaughter, is sec- tion 12,604 of the code, which provides that: "Whoever operates a * * * motor vehicle at a greater speed than eight miles an hour in the business and closely built up portions of a municipality, or more than fifteen miles an hour in other portions thereof, shall be fined not more than $25.00, and for a second offense shall be fined not less than $25.00 nor more than $50.00." Excessive violations of speed, therefore, are made by this statute misdemeanors. The words "motor vehicle" and "automobile" are synony- mous ; that is, they mean the same thing.'^ The claim of the state is that the cause of death of H. H. was due to the alleged violation of the law regulating the speed of automobiles, by running at a speed in excess of that prescribed by the statute. On the other hand, the defendant denies that he was running in excess of such speed. And tlic defendant claims in evidence that the death of H. H. was caused by his own act in running across the street. The jury will be called upon to doterinino wliether tlie de- fendant did or did not at the time diarged exceed the limit of ■iJolinson V. State, (if) O. S. r)9, 09. «Sriiitli V. State, 12 O. S. 400, 400. 00 O. S. 09. 7 Brown v. State, 10 X. P. (N.S.) 238. 1786 INSTRUCTIONS TO JURY. speed prescribed by statute, and if you find that he did, whether such act of alleged violation of the statute as to speed, was either a sole or contributing cause of the collision of his automobile with the boy, or whether notwithstanding the alleged excessive rate of speed, the injuiy or collision with the boy was unavoid- able, or whether it was due to the sole act of the boy. 11. Opinion evide^ice as to speed. Under the law an adult of reasonable intelligence and ordinary experience who observes the passing of an automobile just before an accident occurs is presumptively capable, without proof of further qualification, to give his opinion as to the speed of the automobile.^ So the law is that an ordinary observer, acquainted with automobiles, but with neither practical nor technical knowledge of their con- struction or management may be permitted to give his estimate as to the rate of speed at which a machine was proceeding at a given time.^ Wliile the law is that such persons are competent to give an estimate as to the speed, the probative force of such opinion, estimate, or judgment is for the jury to determine. The law being that such evidence is received with caution, it is the duty of the court to state to the jury that in the consideration of this testimony and the weight which you may give it, you should consider the experience, training or acquired aptitude, or want thereof, for the giving of a judgment of speed, as well as the degree of care and attention which a witness may have been devoting to the matter of speed at the time he arrived at his opinion.^" The law does not permit courts to pronounce judgment or sentence for consequences of the violation of the inhibitions of the statute as to the rates of speed on opinions based on con- jecture or guess, but demands that the basis thereof shall be facts." Nor does the law sanction or permit a description of speed as "high," because that is nothing to the purpose even 8 Chamberlain on Ev., sec. 208. 8 84 Kan. 608. 10 Chamberlain on Ev.. sec. 2086, p. 2767. 11 /(f., sec. 26, p. 2767; Moore on Facts, sec. 120, 187 Pa. St. 451, MANSLAUGHTER. 1787 when the specific inquiry is as to the rate of travel. The law regards such testimony as too uncertain for judicial action.^- Therefore, any testimony of this kind will be disregarded by the jury in this case. On the other hand, it is competent for the jury to consider the fact as to the distance within which the machine in this ease is claimed to have stopped after the collision with the boy in arriving at the conclusion concerning the rate of speed at which the defendant's machine was run. The jury may also consider the opportunity which the non- expert witnesses may have had which enabled them to give their judgment, the attention they may have been given to the speed of the automobile, when their attention was first given to the same, and the position in which such witness or witnesses were in at the time when they observed the machine. It is also proper and within the province of the jury to con- sider whether a witness has had experience in driving an auto- mobile, or whether he has not had such experience, or whether he has or has not had experience in riding in an automobile or whether he has or has not had an opportunity in observing and noting the rates of speed at which automobiles have been run. 12. Alternative fielding as to rate of speed. If you should have a reasonable doubt from all of the evidence, whether the defendant at the time he was driving his machine at a rate of speed greater than fifteen miles an hour, it will then bo your duty to render a verdict of not guilty. But if you should have an abiding conviction that defendant was driving his machine as charged at a greater speed than fifteen miles an hour, then it will be your duty to further find whether the fact of the defendant's running liis machine at an unlawful rate of speed was either the sole cause of the death, or whether it was a contributing cause of the death of the boy. 13. Violation of statute hy excessive speed must he proximate cause of death. The court instructs tlio jury that the law does not make the defendant guilty of manslaugliter even if lie was 12 Nicholson V. Traction Co.. 14 X. P. (X.R.) 177. 2:? O. D. ; Mooro on Facts, sec. 406, Ifw Pa. St. 4.'{«, Hi."} Pa. St. 102. 1788 INSTRUCTIONS TO JURY. running his automobile more than fifteen miles an hour in viola- tion of the statute at the time the boy was run into and killed, if the act of H. H. himself was the sole cause of his death. So, therefore, though the jury should find that the defendant was running at an unlawful rate of speed, still if you nnd that the act of H, H. in passing across the street, in whatever manner you may find from the evidence that he did pass across the street, was the sole cause of his death, then the jury should acquit the defendant. But the law would make the defendant responsible and liable even though the boy himself was guilty of conduct contributing to his own death, if he, — the defendant, — was running at an unlawful rate of speed, and such unlawful act contributed to the death of H. H. Therefore, it follows that if the jury finds that the boy him- self by his own conduct endangered his own safety, still if you find that the defendant was running his machine at an unlawful rate of speed and that such unlawful act on his part contributed, not necessarily as a sole cause, but as a contributing, proximate cause, your verdict in such case should be one of guilty. If the jury should find the defendant not guilty of man- slaughter, you may find him guilty of either assault, or of assault and battery, if in your opinion the evidence warrants such a verdict. 14. May* find defendants guilty of assault and battery. The law is that one who intentionally violates the statute prohibiting the driving of an automobile beyond fifteen miles an hour in a municipality in portions thereof other than in the business and closely built up portions of such municipality and who while so violating such statute runs into and strikes a person right- fully passing upon or across the street, is guilty of assault and battery, notv^dthstanding the injury M^as unintentionally in- flicted." If, therefore, the jury should find the defendant not guilty of manslaughter, you may, if you believe the evidence warrants it, find him guilty of assault and battery, or of assault alone. isFishnick v. State, 10 N. P. (N.S.) 110. MANSLAUGHTER. 1789 If you should find hiiu guilty of any crime you will say so by your verdict." 1* State i\ Woodlin, Franklin Co. Com. I'leas, Kinkead, J. Sec. 2002. Charge of manslaughter by one attempting to ar- rest another for felony. 1. The charge. 2. Manslaughter defined. 3. May make arrest for murder on reasonable cause mithout warrant. 4. When right to kill in arresting for felony justified. 5. Claim of self-defense. 1. The charge. The specific charge in the indictment is as follows : That S. H. on or about the day of , in the year 19 — , at the county of aforesaid did unlawfully kill G. M., then and there being. The statute of this state defines manslaughter as fonows: 2. Manslaughter defined. Whoever unlawfully kills another except as provided in the three preceding sections, is guilty of manslaughter. The three preceding sections of the statutes referred to in this definition of manslaughter are those sections of the statutes which define murder in the first and nuirdcr in the second de- gree. It is not necessary that the killing, to constitute man- slaughter, should be done with deliberation and premeditation, nor done maliciously; it is incumbent upon the state to prove that the killing was done either upon sudden quarrel or inten- tionally while the slayer was in the commission of some unlawful act. In this ease the person killed was not guilty of the crime for which the defendant was seeking to arrest him, l)ut it is the claim of the defendant that he believed him to ])c one N. F., who was charged willi luiving cominittcd a murder shortly before that in this county, and that he believed that M. was the 1790 INSTRUCTIONS TO JURY. man guilty of the murder. The defendant did not have a war- rant for the arrest of the deceased, or for the arrest of any one charged with the commission of that crime. In a sudden affray befween the defendant and the deceased M., M. was killed. It becomes important, therefore, for you to determine whether or not the attempted arrest of M. was lawful under the circum- stances upon the part of this defendant. 3. May make arrest for murder on reasonable cause without warrant. Where the crime of murder has been committed it is lawful for any person without a warrant to arrest another whom he believes and has reasonable cause to believe is guilty of the offense, and to detain him until a legal warrant can be obtained. You will observe that it is not essential that the person arrested should in fact have committed the crime ; it is essential, how- ever, that the defendant believe, and further, had reasonable ground to believe that the person he was trying to arrest was the one who committed the crime. It is not enough, you will observe, that he believed, but before the defendant can justify an attempt to arrest the deceased without a warrant — who was not guilty of the crime for which he was seeking to arrest him — it must further appear that under all the circumstances he had reasonable cause to believe M. to be the man who had com- mitted the murder. It is essential to a lawful arrest without a warrant that it be shown that a felony has been committed, and murder is a felony. If you find that at the time the defendant attempted to arrest M., a murder had been committed, and that he believed in good faith, and further, that he had reasonable ground to believe that M. was guilty of the crime of murder, then he was justified in trying to arrest him although he was mistaken. If, hoAvever, you find that the defendant did not believe in good faith, or that although he believed it, yet that he did not under all circumstances have reasonable cause to believe it, then his act in attempting to arrest an innocent man for the com- mission of murder was not justifiable and if in trying to arrest MANSLiAUGHTEB. 1791 M. under such circumstances he shot and killed M., he is guilty of the crime of manslaughter and you should so find. Whether the defendant did in good faith believe that M. was the man who had committed this murder, and whether he had reasonable cause to believe it, are questions of fact which you, gentlemen of the jury, must determine from all the evidence in the case. If you find the fact to be that the defendant believed and that he had reasonable cause to believe that M. was guilty of the murder, then, as I have said, his attempt to arrest M. was not unlawful and he is not guilty unless the means employed by him to effect the arrest were unlawful. 4. When right to kill in arresting for felony justified. The law does not clothe an officer or other person who is rightly trying to arrest another, with authority to judge arbitrarily of the necessity of killing the person to secure him. He can not kill in trying to make an arrest unless there is necessity for it. He is not justified in using unnecessary force or in resorting to means likely to take the life of the person he is attempting to arrest if the arrest could be effected otherwise. H you find the defendant was justified in attempting to arrest ]\r., it becomes your duty to determine the further question as to whether or not the means he employed to make the arrest were under all the circumstances existing at that time necessary to make his arrest. If you find he was justified in attempting to arrest the deceased, by reason of his belief of his guilt of the crime of murder— that is, believing that he was F., whom he believed to ])e guilty of the murder, and because of his having reasonable cause to believe it— then he would be justified in using such force and such only as, having regard to all the cir- cumstances surrounding him at the time, would be reasonably necessary to effect the arrest, even to the taking of the life of the person he was trying to arrest. If you find that was the only moans by which it could b,. effected, a bomicide under such circumstances would be justifiabh- and your verdict sbould be not guilty. 1792 INSTRUCTIONS TO JURY. If, however, you find that under all the circumstances it was not necessary to kill M. in order to effect his arrest, although the defendant may have believed him to be the guilty man and had reasonable cause to believe it, his killing under such cir- cumstances would be unlawful and the defendant would be guilty of the crime of manslaughter, 5. Claim of self-defense. The defendant claims further that he acted in self-defense. Homicide is justifiable on the ground of self-defense where the slayer in the careful and proper use of his faculties, in good faith believes and has reasonable ground to believe that he is in imminent danger of death or great bodily injury and that his only means of escape from such danger will be by taking the life of his assailant, and this is true although he may be mistaken as to the existence or imminence of the danger. The existence of the danger is not indispensable, but the defendant's belief of its existence is indispensable, and the further fact is indispensable that there must have been reason- able ground for the belief. Furthermore, one who brings on a conflict without just cause or excuse can not justify on the ground of self-defense, even though he may be placed in a posi- tion of great peril, but must himself first withdraw from the conflict thus unnecessarily and unjustifiably brought on by him, before he can assert the right of self-defense. So in this case if you find the defendant was not justified in attempting to make this arrest, then having attempted to do an unlawful thing, if you find that the defendant first made an assault on M. for the purpose of arresting him and in the pro- gress of the conflict thus brought on he killed M., the killing would constitute manslaughter. If the defendant merely called to the deceased, asking him to stop, and before the defendant had attempted to use any force to cause the arrest or to make any move toward the using of force to cause the arrest, M. fired upon the defendant, then the defendant might act in self- defense under the rules I have stated to you, but could not take the life of the deceased unless he believed and had good reason to believe that he was himself about to be killed or to suffer MANSLAUGHTER. 1793 great bodily injury and that his only means of escape was to shoot M. "Where one seeks to justify or excuse a homicide on the ground of self-defense, the burden of proving that homicide was so excusable or justifiable on the ground of self-defense is upon the defendant and must be established by a preponderance of the evidence. If the defendant discovered at any time before he fired the fatal shot that the person he was trying to arrest was not the man whom he believed guilty of the murder, then it was his duty at once to desist from further attempt to make the arrest and his conduct in shooting the defendant after such discovery would only be excusable upon the ground of self-defense. If after such discovery he believed he was in imminent danger of death or great bodily harm and that his only means of escape was in shooting M., he would be justified in so doing, but under no other circumstances. Under such an indictment, if the defendant be found not guilty of manslaughter he may be found guilty of assault and battery or simply assault. Any unlawful violence upon the person of another is assault and battery and any act toward the commission of a battery is an assault.^ 1 State V. Hardy, Franklin Co. Com. Pleas. Bigger, J. Sec. 2003. Negligent driving of automobile as forbidden by statute constitutes manslaugher. One who wilfully drives an automobile in a public street of this state at a rate of speed or in a manner expressly forbidden by statute, and thereby causes the death of another or one who, with reckless disregard for the safety of others, so negligently drives an automobile in a public street as to cause the death of another is guilty of criminal homicide, or manslaughter.^ 1 Approved in State v. Campbell, 82 Conn. 671, 18 Ann. Gas. 336, 74 Atl. 927, 135 Am. St. 293. 1794 INSTRUCTIONS TO JURY. Sec. 2004. Contributory negligence of deceased no defense in manslaughter caused by neglect of driver of automobile. Contributory negligence, as such, is not- available as a defense in a criminal prosecution for a homicide caused by the [gross and reckless misconduct of the accused] or [violation of a duty required or imposed upon the driver of an automobile by the statute of this state] ; although the decedent's behavior is admis- sible in evidence, and may have a material bearing upon the question of the defendant's guilt. If, however, the [culpable negligence] or [acts in specific violation of the statute concerning the running of the automobile] is found to be the cause of the decedent's death, the former is responsible under the criminal [law] or [statute], whether the decedent's failure to use due or ordinary care contributed to his injury or not.^ iSchultz V. State, 89 Neb. 34, 130 N. W. 972, Am. Ann. Cas. 1912, C. 495 and note, p. 501. CHAPTER CXVII. MARRIAGE. (See Breach of Promise.) SEX!. SEC. 2005. What constitutes marriage. 2008. Marriage in another state 2006. Common law marriage. forbidden by laws of 2007. Legitimacy of children. such state — Followed by cohabitation. Sec. 2005. What constitutes marriage. In the case of Stowell B. Dudley v. Lucius M. Warren, et al. (title in supreme court), the trial court refused to give certain requests as to what constitutes a valid marriage, and the circuit court reversed the trial court for error in its action in refusing requests, holding that : "The court erred in refusing to charge the jury as requested by the plaintiffs, that, in determining the fact whether M. W. and E. W. were husband and wife, the jury are not authorized to determine that question upon the evidence of repute alone, but are to determine it by all the evidence submitted to them by the court, giving to all of such evidence such weight as in their judgment it is entitled." The judgment of the circuit court was affirmed by the supreme court without report.^ We give the requests which were refused by the trial court, and which should have been given. "If the jury find that E. W. and M. W. (openly and mutually entered into a contract to become husband and wife, and there- after) cohabitated together through a series of years as man and wife, that E. took and bore the name of W. in the communities in which they resided together, that the children of E. were deemed by M. W. to bo his cbildi:en. and wc^ro acknowledged by him to be such ; that M. W. bore himself towards said children 1706 1796 INSTEUCTIONS TO JURY. as a father; that they were educated, supported, and provided for by him as his children; if the jury further find that E. and M. conducted themselves toward each other as man and wife, and that the relations between them w^ere apparently respectable and orderly, then a presumption of marriage between the parties arises, and these circumstances are sufficient to warrant an inference by the jury of a marriage between E. and M. W. "In determining the fact whether M. W. and E. W. were husband and wife, the jury are not authorized to determine that question upon the evidence of repute alone, but are to determine it by all the evidence submitted to them by the court, giving to all of such evidence such weight as in their judgment it may be entitled. "To constitute a valid marriage in the State of Ohio no ceremony or form of celebration of marriage is required. ' ' In the State of Ohio the mutual consents of the parties then to become husband and wife, interchanged between themselves and followed by cohabitation, is sufficient to constitute a marriage. "It is not necessary in order to prove a marriage that an actual exchange of consents be proven to have taken place between the parties, but the jury may presume that consents were exchanged if the relations existing between a man and woman are apparently matrimonial."^ 1 See 27 W. L. B. 272. 2 The part of the charge inserted in parenthesis probably cures a defect in the request and under Carmichael v. State, 12 0. S. 553, is good. See Johnson v. Dudley, 4 Oh. Dec. 243, 248, holding that where parties originally came together under a void contract, the marriage may be proved by acts of recognition, cohabitation, birth of children. Sec. 2006. Common law marriage. You are all aware of the usual and ordinary form by which marriages are celebrated, and of such marriages there is little trouble as to proof. But while marriages are usually celebrated in this formal manner, the law says that marriages may be con- litAKEIAGE. 1797 summated without such formal cereraonj% and if the necessary- requisites exist to constitute such marriages then it is a marriage, a good and binding one. How may a marriage be consummated without the usual form? I say to you if a man and woman agree to be husband and wife, and live together as husband and wife, hold themselves out to the world as husband and wife, and thereby acquire the reputation in the community as being husband and wife, the law recognizes them as husband and Avife, though there never was any formal ceremony — that is, the law says that marriage is a civil contract, and that a man and woman may between themselves enter into such a contract, and if they do so enter into such a contract and live together as husband and wife, the law recognizes them as legally husband and wife, and children born to them would be legitimate children.^ "A simple agreement between one man and one woman, who may lawfully so contract, that they will take one another as husband and wife thenceforth, and that they will sustain this relation thenceforth so long as they both shall live, the mutual understanding that neither one nor both can rescind the contract or destroy the relation followed by cohabitation ; wlien they do this, they are married. And their marriage is just as valid in Ohio, as though a chime of bells played a wedding march, and a half dozen bishops and clergymen assisted at the celebra- tion before a thousand people." - 1 E. P. Green, J., in Stowell B. Dudley v. Lucius M. Warren, supreme court, No. 2871. 2 Approved in State v. Miller, 12 0. C. C. 62. 66. There is no subject fraught with so much uncertainty as to what con- stitutes a valid marriage. Blackstone says: "Any contract made. per verba de presenti (by words of the present time), or by words in the present tense, and in case of cohabitation per rrrJxi tie futuro also (by words of future acceptance) between persons nlilc to contract, was before tlie late act deemed a valid marriag*' to many purposes, and the parties might be compelled in tlie spiritual courts to celebrate it in fnrie ecclesia^." Kent Bays: "Xo peculiar ceremonies are requisite by tlie cniMiiinii hiw lo the valid celebration of the marriage. 'I'lic consent of tiie parties i8 all that if? required, and us marriage is said to be a contract 1798 INSTRUCTIONS TO JURY. jure gentium ('oy the law of nations), that consent is all that is required by natural or public law." Nuptias non eoncubitus, sed consensus facit. ("Consent, not consummation, maketh the mar- riage.") "This (says Kent) is the language of the common law and canon law, and of common reason." This language would indicate, therefore, that consent merely is sufficient to constitute a marriage, and that if parties consent and then coliabit, that that constit\ites marriage. Blackstone's language indicates that consent by words of the present tense, without a formal ceremony, would constitute a lawful mar- riage, and as would also by words of future acceptance, followed by cohabitation. And Kent's Commentaries seem to agree with that law. He says (p. 86, 2 Vol.): "If the contract be made per verba de present!, and remains without cohabitation, or if made per verba de futuro, and be followed by cohabitation, or consumma- tion, it amounts to a valid marriage in the absence of all civil regulations to the contrary, and which the parties (being compe- tent as to age and consent) can not dissolve, and it is equally binding as if made in facie ecclesiae." This was the doctrine of the common law, and also of the canon law, which governed mar- riages in England prior to the marriage act of 26 George II. There seemed to liave been considerable conflict between the civil and ecclesiastic authorities in some of the English cases, the inter- vention of a priest and a formal ceremony being assumed to be a material circumstance, while on the contrary it was considered in other cases that a promise to marry followed by cohabitation, and where there was no illicit intercourse, and it was perfectly clear that a marriage was intended, was a valid marriage. Shelford on Marriage and D.. 29, 989. Again the rule of the common law seems to have been that it was not necessary that tlie consent should have been given in the presence of a clergj^nan in order to give it validity, though it was con- sidered a very becoming practice, and siiitable to the solemnity of the occasion. The consent of the parties could have been declared before a magistrate, or simply before witnesses, or subsequently confessed or acknowledged, or the marriage could have been in- ferred from cohabitation and reputation as husband and wife, except in cases of civil actions for adultery, or in public prosecu- tions for bigamy or adultery, in which cases actual proof of the marriage was required. Kent's Com., p. 88. Blackstone, it will be remembered, says that consent in words of the present tense, or acceptance in the future, followed by cohabitation, for many purposes constituted a valid marriage. This statement of Blackstone was very thoroughly considered in Ohio in the case of Duncan v. Duncan, 10 O. S. 186, in which Brinkerhoif, C. J.. said: "What these many purposes for which a marriage per verba de futuro were valid were, does not seem very clear; and whatever MARRIAGE. 1799 they might have been, it seems now to be pretty well settled that they did not embrace a right to dower on the part of the wife, not the right to administer on his estate, or to her property, on the part of the husband, nor the legitimacy of the offspring, nor the avoiding of a subsequent marriage pending the first." This view by the Ohio Supreme Court is supported too by some of the old English cases. So that after all, with all of the uncertainty which seems to exist in the English law, and the looseness of the common law on this subject, it seems that although wo many times see the statement that cohabitation will constitute marriage, or will evidence marriage, even though it did, there were none of the usual incidents or rights consequent upon such marriage, so that there would be really no marriage without some sort of a formal ceremony. And the statement is made in a note to Kent's Com- mentaries that "if it was held by the House of Lords that bj' the law of England, even before the marriage act, a contract by words in the future was never a valid contract of marriage; that the civil contract and the religious ceremony were both necessary to a perfect marriage by the common law." Citing Catherwood v. Calson, 13 M. & W. 261. In another note in Kent, p. 87, citing the case of Beamish v. Beamish, 9 H. L. C. 274, it is said: "In England it is settled that to consti- tute a valid marriage by the common law. it must have been celebrated by a clergyman in holy orders." In the case of Holz r. Dick. 42 O. S. 2.3, the parties were married in due form of law but without the consent of the parents, and it was held that where such a marriage was followed by cohabitation after the age of consent, it then constitutes a valid marriage. A marriage good at common law is good unless the statute contains express words of nullity, 12 O. S. 535. A marriage not in accord- ance with form, but where they openly and mutually consent to a contract of present marriage, and thereafter cohabit, constitutes a marriage. Carmichael r. State, 12 O. S. 553. See Johnson v. Dudley, 4 Oh. Dec. 243, 249. Sec. 2007. Legitimacy of children. In order to make children of parents who have not been formally married legitimate the parents must live together as husband and wife — a man and woman may live together and raise a family of children and such children be illegitimate bastards — it is not the living together and raising of children that make the children legitimate, but it is living together as husband and imfr, and not living together in a state of fornication. It is living together as husband and ivife, holding 1800 INSTRUCTIONS TO JURY. themselves out to the world as husband and wife, having the reputation in the community of being husband and wife. The law presumes that all children are legitimate, presumes that a man and woman would not live together in a state of fornication, but this presumption will not make children legitimate. To make them legitimate they must be born to persons living together as husband and wife. If persons live together as husband and wife, holding themselves out to the world as such, and having the reputation of being husband and wife, then the children born to them would be legitimate, although there had been no marriage, no formal ceremony of marriage.^ 1 E. P. Green, J., in Dudley v. Warren, unreported, Sup. Ct. Sec. 2008. Maxria-ge in another state forbidden by laws of such state — Followed by cohabitation in Ohio. If you find that such marriage did take place in Alabama, it being admitted that such marriage between a master and his slave— it being admitted that E. was at that time the slave of M. — was forbidden by the laws of Alabama and is null and void, yet if they, M. and E., live together as husband and wife in the State of Alabama, and children were born to them, and though these children would be illegitimate and bastards, if you should further find that they afterwards lived in Ohio together as husband and wife, under the rules that I have given you, then the children so born in Alabama would be legitimate by the subsequent marriage of their parents.^ 1 E. P. Green, J., in Dudley t>. Warren, supra. CHAPTER CXVIII. MASTER AND SERVANT— NEGLIGENCE OF MASTER. SEC. 2009. 2010. 2011. 2012. 2013. 2014. 2015. 2016. 2017. 2018. 201!>. General duty of master to servant. Master must exercise ordi- nary care in selecting servants. Ihity of railroad company to use reasonable care to furnish adequate number of competent employes to manage engine and train. Whether failure to furnish adequate number of em- ployes is proximate cause of injury. If servant knew there was an inadequate force of em- ployes and continues in service, he assumes risks. Duties of master — Assump- tion of risk — General scope and extent of doc- trine. Servant assumes risk of neg- ligence of fellow servant. If master uses ordinary care in selecting servant, who subsequently becomes in- competent, knowledge of master essential. Servant does not assume risk of negligence of incom- petent servant already in service. Servant does not assume risk of negligence of one occu- pying relation of prin- cipal. Insufficient force — Kisk as- sumed when. SEC. 2020. Fellow servants — ^Wlio are — When one placed in con- trol of another. 2021. Rules for determining who is co-employe or vice prin- cipal — • Brakeman and foreman. 2022. Respondeat superior — Disre- gard of orders of super- ior servant — Eflect of. 2023. Fellow servant — Conductor and brakeman. 2024. Relation between engineer and train dispatcher. 2025. Acts done by servant at re- quest of fellow servant — Liability of master. 2026. Obvious dangers — Acts done by order of superior serv- ant. 2027. Warning of danger by fel- low servant. 2028. Knowledge of danger un- known to master — When danger known to servant. 2029. Knowledge of dangerous methods amounts to ac- quiescence and assump- tion of risks. 2030. Knowledge of work and as- sumption of risks. 2031. Duty of railroad conductor. 20.32. Railroad company deemed to have knowledge of defect — Burden of proof on company to rebut. 2033. Duty of railroad company as t^) inspection — Defect in brake-staff. 1801 1802 INSTRUCTIONS TO JURY. SEC. 2034. 2035. 2036. 2037. 2038. 2039. Burden of proof of contribu- tory negligence on de- fendant unless plaintiff's own testimony raises in- ference. Contributory negligence con- sidered with reference to directions of master. Contributory negligence of servant of railway when slight as compared with negligence of master — Present statutory rule. Servant injured while work- ing on derrick car — ^Neg- ligence by running engine into same — Without dis- connecting machinery on such car. 1. Law of another state gov- erns — ^Negligence of fel- low servant. 2. Duty of master to provide safe place to work. 3. Contributory negligence. 4. Concurrent negligence. 5. Proximate cause differ- entiated from concurrent negligences. Death of engineer from de- railment of train. 1. General duty of plaintiff. 2. Defendant not an insurer — Ordinary care required. 3. Rule of ordinary care varies under circum- stances. 4. Negligence must cause in- jury. 5. Excessive speed as cause of derailment of train. Failure to warn and in- struct and to sufficiently light machinery — ^Injury to servant in operating power shears. 2040. 2041. 2042. 2043. 2044. 1. Statement of claimai 2. Burden and degree of evi- dence. 3. Failure to observe ordi- nary care by either party constitutes negli- gence. 4. Proximate cause. 5. Plaintiff's own evidence. raising inference of neg- ligence. 6. Whether defendant re- quired to warn plaintiff, for jury. 7. Rule of law as to obvious danger. 8. Duty to light machinery. Injury caused by defective guy supporting derrick. 1. Statement of claim — De- fective guy. 2. Defect, defective, meaning. 3. Knowledge of defect — Re- liance upon promise to repair. 4. Appliance of simple con- struction — Rule to be applied — Risk assumed. 5. Reliance on promise to re- pair only when servant has limited knowledge; or where some measure of skill required. 6. Instructions given by master — Effect of dis- obedience by servant. Railroad company may make rules governing conduct of employe — Duty of employe with reference to. Liability of railroad com- pany for violation of rules by employe. IMeasure of damages. Injury to child of employe. MASTER AND SERVANT — NEGLIGENCE OF MASTER. 1803 SEC. SEC. 2045. Joint occupancy of sidetrack 2046. Relation of servant and by two companies. agency may be inferred from facts and circum- stance. Sec. 2009. General duty of master to servant. The relation between the plaintiff and the defendant was that of master and servant, and the law imposes certain duties upon each of the parties to that relation — both upon the master and also upon the servant. It was the duty of the railway company — the master — to use ordinary and reasonable care in providing for its employes a safe and suitable place in which to do their work ; and ordinary and reasonable care is such care as ordinarily prudent persons or corporations are accustomed to exercise under the same or similar circumstances. The company is not required to use extraordinary care, nor is it required to do what is unreasonable or impracticable, taking into consideration all the circumstances. The company does not guarantee the absolute safety of its employes; it is not an insurer of its employes. It is required only to use what would be reasonable care under all the circumstances of the case. You will first determine from the evidence how the injury occurred. Sec. 2010. Master must exercise ordinary care in selecting servants. The defendant is not bound to warrant the competency of its servant to discharge his duties, but only bound to exercise ordinary care in employing and retaining him. The duty of the company was to exercise ordinary care in the selection of its employes; or take that care which ordinarily prudent men are accustomed to exercise in their own affairs under similar circum- stances. They are held to this degree of care, and this only. If the jury find this defendant coiiii);iny did exercise ordinary care and caution at the time of eni[)loying li., the engineer, to ascertain whether he was competent or not, and did find him 1804 INSTRUCTIONS TO JURY. fully competent to discharge his duties as an engineer, then said company had the right to presume that he would continue competent until the contrary was known to them.^ 1 As to degree of care required in selecting servants, see Mobile, etc., R. R. Co. V. Thomas, 42 Ala. 459 ; Cooley on Torts, 659 ( 558 ) ; Wood on Railroads, sec. 389. Sec. 2011. Duty of railroad company to use reasonable care to fumish. adequate number of competent employes to manage engine and trains of cars. It was the duty of the railroad company to use ordinary and reasonable care to furnish an adequate number of competent em- ployes to properly manage the engine and train of cars upon which the plaintiff was working ; that is, it was the duty of the company to use such care in that respect as ordinarily pru- dent persons or corporations engaged in like business usually exercise under the same circumstances. And the question now for you to determine from the evidence is: did the company exercise such care? Were the engine and train of cars in ques- tion furnished by the company wdth a sufficient number of em- ployes who were charged with the duty of coupling cars and otherwise properly handling the train, and who were compe- tent and were expected to perform these duties ? If this engine and train of cars were so furnished with an adequate number of such employes, then the company is not chargeable with fault for omitting to send out upon the engine upon the morning of the injury, in starting from , a conductor and brakeman. The inquiry is: whether, at the time of the injury, the engine and train were sufficiently and properly manned for the pur- pose of performing all the duties that usually appertain to the operating and managing an engine and train under such cir- cumstances. If this engine and train of cars was so adequately and sufficiently manned, then, of course, the company was not negligent in that respect. MASTER AND SERVANT — NEGLIGENCE OP MASTER. 1805 Sec. 2012. Whether failure to furnish adequate number of employes is proximate cause of injury. (a) Same continued — Must be proximate cause of injury. But if you find from the evidence that the train was not fur- nished with an adequate force of men, you will then inquire whether the failure to furnish this train with an adequate force of men caused the injury. To make the defendant liable for the injury, the inadequate force of men must have caused or occasioned the injury, and it must be the proximate cause of the injury. And this is a question of fact for you to determine from all the evidence in the case. Was the failure to equip this train with an adequate force of men, if such failure existed, the immediate and proximate cause of plaintiff's injury? If the plaintiff was without fault in attempting to make the coup- ling of these two cars, and he was injured by reason of the fail- ure of the company to furnish an adequate force of men to properly protect him against injury — such as by giving signals to the engineer, or otherwise — then the failure to furnish an adequate force of men was the proximate cause of tlie injury. But if the injury did not result from the absence of a sufficient force of men, naturally and in the usual course of events, or if the company could not reasonably have anticipated that in con- sequence of the absence of sufficient force the plaintiff would receive an injury, then the absence of such force was not the proximate cause of the injury. Of course, as you will readily see, it would make no difference what fault the company com- mitted with reference to this force of men, unless such fault directly contributed to produce the injury, and, as I have said, it is a question of fact which you must determine from all the evidence in the case. Sec. 2013. If servant knew there was an inadequate force of employes, and continues in service, he as- sumes risks. (&) Same continued — Knowledge of plaintiff. But it is claimed by the defendant that, even if the force of men who were operating this train of cars was inadequate, the 1806 INSTRUCTIONS TO JURY. plaintiff, under the circumstances of this case, took upon him- self the risk of injury from that cause, and can not now hold the company responsible for an injury received from that cause. That is the claim on the part of the defendant. The rule upon that subject is this: If the servant of a rail- road company has a full knowledge of any omission of duty or neglect on the part of the company, and with such knowledge — notwithstanding such knowledge — continues in the service of the company without making any objection, or without using any exertions to have the omission of duty or neglect remedied, he thereby takes upon himself the risk of injury arising from such neglect and waives the right to recover of the company for the injury. The jury is instructed if they find from the evidence that the plaintiff, upon the day in question, proceeded on his train as fireman, knowing that there was no conductor or brakeman in charge of the train, and that he would he required to perform the duties ordinarily performed by such conductor and brake- men, then he assumed all the extra risks incident to such em- ployment, and thereby waived any obligation on the part of the company to furnish a conductor and brakemen for such train. If the plaintiff knew when he started on this train on the morning in question that there was no conductor and brakemen in charge of the same, and that he would be required to do the duties of a brakeman, he had a right to abandon the service and refuse to proceed without such conductor and brakemen, and his refusal to do so, and his election to proceed without such conductor or brakemen was a waiver on his part of any obligation of the company in that regard, and the plaintiff in such case would not be entitled to recover on that account.^ iPugsley, J.. Penn. Co. v. Hinckley. Affirmed hy circuit court. Sec. 2014. Duties of master — Assumption of risks — General scope and extent of doctrine. The defendant owed certain duties to the plaintiff, his em- ploye. If he failed in the performance of those duties, then. MASTER AND SERVANT NEGLIGENCE OF M.\STER. 1807 as a matter of law, he would be negligent, and the question of the defendant's negligence depends whether it performed the duties imposed upon it by the law. Wlien tlie plaintiff entered into the employ of the defendant he assumed all the ordinary risks and dangers of his employment, which would include the risks and dangers which may be occasioned by the carelessness or neglect of a fellow employe.^ But the plaintiff did not, when he entered the services of the defendant, assume the risks and dangers occasioned by the carelessness or negligence of the de- fendant. Or, to restate the proposition, he did not assume the dangers or risks incident to the failure upon the part of the de- fendant to perform duties it owed to its employe. And if the plaintiff's injury in this case was the result of the ordinary risks and dangers of his occupation, then he could recover no damages for such injury, for the simple reason, gentlemen, that no person would be in fault. If his injury was caused by the ordinary risks and hazards of his occupation, it would be a mere accident — the defendant not to blame and the plaintiff not to blame. But if the plaintiff's injury was occasioned by the negligence or carelessness of the defendant, then he may recover, unless his own carelessness or negligence in some way contributed to his injury. Now, the defendant' owed the duty to the plaintiff to exer- cise ordinary care by furnishing safe tools and implements for his use, and having a proper place in which to prose- cute his work, and a reasonably safe means of access to and from his work. If the defendant failed in any of these par- ticulars, and by reason of such failure plaintiff was injured, then plaintiff would i)e entitled to recover, unless you should find that plaintiff's negligence or carelessness contributed in some way to his own in jury. - 1 1 C. C. Son, 23 W. L. B. 436. 33 O. S. 408, 2 C. C. 3. 2 From Bellaire Nail Works r. Morrison. Supreme Court, unreported. No. 2902. Affirmed. 1808 INSTRUCTIONS TO JURY. Sec. 2015. Servant assumes risk of negligence of fellow servant. It is a general rule of law that a servant, by entering into his master's service, assumes all the risks of that service which the master can not control, including the risk arising from the neg- ligence of his fellow-servants. He assumes the risks of the neg- ligence of the men employed with him in a common service — co-employes — engaged in a common employment, where the one is not in superior authority to the other.^ 1 Danger not inherent in the work, and not in the manner of doing it, is not assumed, 47 0. S. 207. All risks not inherent in the work must be notified to him by the master, 23 W. L. B. 436, 27 W. L. B. 267. Only ordinary risks are assumed, 1 C. C. 359, 23 W. L. B. 436. Sec. 2016. If master uses ordinary care in selecting servant, who subsequently becomes incompetent, knowledge of master essential. It is the law that the company, acting in good faith and ex- ercising ordinary care and diligence in the employment of B. ; exercising that degree of care that ordinarily prudent men are accustomed to employ under like circumstances, if these men employed this man to do this particular duty on this day in the belief that he was competent to do it, and in doing that exer- cised ordinary care in selecting him to do that, and it ttirned out upon this particular day, and the transactions that occurred there indicated incompetency, if they had no knowledge of his incompetency, the company would not be at fault, even though he proved to be incompetent. Of course after he had been in the employ of the company, in order to determine if it was ap- parent to the company that he was incompetent, by his methods of transacting the business imposed upon him ; if this became apparent in the discharge of his duties, that he was incompetent, then it would follow that they had knowledge and would have to govern themselves accordingly. MASTER AND SERVANT — NEGLIGENCE OF MASTER. 1809 If the jury find that engineer B. was a competent employe at the time he entered the service of this defendant company, but that he afterwards became incompetent, still, unless the rail- road company had knowledge of such incompetency, it is not liable for injuries inflicted by said B.'s want of care to his fellow-servants.^ 1 From The Cleveland, Lorain & Wheeling R. R. Co. v. Pulley. Supreme court, unreported. Affirmed. Stone, J. Sec. 2017. Servant does not assume risk of negligence of a servant incompetent when entering employ- ment. One of the exceptions to the general rule that the servant, when entering his master's employment, assumes the risks aris- ing from the negligence of his fellow-servants is where the em- ployer has in his service persons who are incompetent to dis- charge the duties imposed upon them. Sec. 2018. Servant does not assume risk of negligence of one occupying relation of principal. The plaintiff, in accepting the employment or service as a brakeman in the defendant's railroad company, assumes the risk of injury from dangers ordinarily incident to the business, and the risk of danger from the negligence of his co-employes, but he does not assume the risk of danger to him from the neg- ligence of those who occupy the relation of principal to him in his service and employment by the defendant.^ 1 Waight, J., in C. A. & C. Ry. Co. v. Sharp. Supreme court, unreported. Affirmed. Sec. 2019. InsuflBcient force — Risk from assumed, wnen. "It is the duty of a railway company to furnish the neces- sary and proper number of hands for the safe management of its trains, and for a delinquency in this particular the conduc- tor of a train lias a right to decline his charge, or refuse to run the train. But when he takes the diarge and runs the train 1810 INSTRUCTIONS TO JURY. for a length of time, without a sufficient number of hands, he voluntarily assumes the risk and waives the obligation of the company in this respect as to himself, and if injured by means of such delinquency on the part of the company, he is without a remedy against the company for damages."^ lEailway Co. v. Barber, 5 O. S. 542. [n Ey v. Barber, supra, the court say on page 560: "The company did not insure him (employe) against accident, or those unforseen perils which due and proper care and diligence could not provide against. Injuries from accidents, which the utmost stretch of human skill and foresight can not provide against, are incident to all situations and conditions in life. And because one person is in the employ of another in a hazardous business it does not follow that the employer must stand responsible for damages re- sulting from injuries received through accidents which a proper degree of skill and diligence can not guard against." And m Ry v. Knittal, 33 0. S. 468, tlie court say: "The employe of a railroad company takes the ordinary hazards of the service, also such risks as arise from his own negligence or that of his fellow- servants." Sec. 2020. Fellow-servants — Who are — When one placed in control of another. All who serve the same master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades and departments of it, are fellow- servants. Where different persons are employed by the same principal in a common enterprise, and no control is given to one over the other, no action can be sustained by them against their employer on account of any injuries sustained by one agent through the negligence of another. But when one ser- vant is placed by his employer in a position of subordination, and is subject to the orders and control of another, and such inferior servant, without fault, and while in the discharge of his duties, is injured by the negligence of the superior servant, . the master is liable for the injury. 1 Green, J., in The C. A. & C. Ry. Co. v. Umstead. Supreme court, No. 2481; Cooley on Torts. 662 (560); Jaggard on Torts, 240. MASTER AND SERV.\NT — NEGLIGENCE OF MASTER. 1811 Sec. 2021. Rules for determining- who is co-employe or vice- principal — Brakeman and foreman. But if you find that either of these persons were negligent in the discharge of their duty, then you will consider and de- termine whether the one you find was so negligent was a co- employe of the plaintiff, or occupied the position of vice-prin- cipal, so far as the defendant was concerned, in the plaintiff's employment by him. And the rule by which you are to deter- mine whether he was a co-employe or vice-principal depends upon whether or not, under their employment by the defendant, the foreman actually had power or authority to direct and con- trol the vservices of the plaintiff in his employment by the de- fendant. If he has this authority from their employer, then the former stands in the place of said employer as to the plain- tiff, and if he is negligent, and his negligence results in injury to the plaintiff, the employer, the defendant in this case, would be liable. If he had no such authority, actual authority or power to direct and control these services of the plaintiff upon behalf of the defendant, Init they stood equal in that regard, and they would be co-employes, and the defendant, the company, would not be liable for the negligence of either resulting in injury to the other. ^ Now, gentlemen of the jury, under these in- structions, it is for you to determine, from the testimony in this case, whether or not this man J., the foreman of the l)rakemen, as he was designated in the proof, occupied this position of authority by reason of his employment by the defendant. If he did not, then the defendant wouhl not be liable, even though he was negligent; if he did occupy this position of authority over the services of the plaintiff, then, if he was nc^gligent in the performance of bis duties, tlie defendant would be liable, unless the plaintiff was guilty of contributory negligence.^ 1 To conHtitute thp relation of superior and inferior servant, the latter must he under the orders of the former. Jenkins v. H. R. Co., 17 O. S. 197. 2 Waight, .1., in C. A. & C. Ry. Co. v. Sharji. Supreme court, unreported. Judgment affirmed. 1812 INSTRUCTIONS TO JURY. It has been uniformly held in Ohio, that where one servant is placed in a position of subordination to and subject to the orders and control of another servant of a common master, and the sub- ordinate servant, without fault of his own and while in the per- formance of his duty, is injured through the negligence of the superior servant while acting in the common service, an action lies in favor of the inferior servant so injured against the master, L. M. E. K. Co. V. Stevens, 20 O. 41.5; C. C. & C. R. R. Co. v. DeKeary, 3 0. S. 208, 209 and 210, 17 O. S. 211, 36 O. S. 221, 224, 226, 38 O. S. 389. "Whether an engineer, or employe of a railroad company, has authority to direct or control other employes of the same company, is a ques- tion of fact to be determined in each case. This may be done, however, either by proof of express authority, or by showing the exercise of such authority to be customary, or according to the usual course of conducting the business of the particular company interested, or of railroad companies generally." Railroad Co. v. Margrat, 31 W. L. B. 247; Railway v. Lewis, 33 0. S. 196. Sec. 2022. Respondeat superior — Disregard of orders of su- perior servant — Effect of. Further, if you should find that, at the time of the accident, C. willfully disobeyed or disregarded the order or admonition of a servant superior to himself, that is, a servant under whose control he was, and to whose orders and directions he was made subject in the discharge of his duty, and such order pertained to his safety and such disobedience contributed at the time to his death, the plaintiff can not recover.^ 1 R. de Steiguer, J., in Cook v. C. H. V. A T. Ry., 51 O. S. 636. t Sec. 2023. Fellow servants — Conductor and brakeman. If C. was actually subject to the control and direction of B., as conductor, in the discharge of his duties as brakeman, then he was not the fellow-servant of the conductor, but the con- ductor was the superior servant of C, and the acts of the conductor and his orders and directions, in the discharge of his duties as such, would be acts of the defendant.- 1 R. de Steiguer, J., in Cook v. C. H. V. & T. Ry., 51 0. S. 636. MASTER AND SERVANT — NEGUGENCE OF MASTER. 1813 Sec. 2024. Relation between engineer and train dispatcher. The defendant from the statement of its claim says that if there was any negligence, it was the negligence of a fellow- servant, and for this it would not be liable, and this brings you to the consideration of the question as to whether or not the assistant train dispatcher or the operator at P. were the fellow-servants of the engineer R. Upon this question you are instructed that if you find that the defendant had at that time committed and entrusted the entire charge of its business with regard to the making and transmitting the order for the moving train — to the assistant train dispatcher, or to him and the telegraph operator jointly, and exercised no discretion or oversight over them, or either of them, in regard thereto, then the act or acts of the one or both, as you may find this business to have been thus entrusted to the one or }x)th, would be the act or acts of the defendant, and if the one or the other, or both, to whom you may have found this particular business to liave been entrusted by the defendant, did not act with ordinary care in the making and transmitting of the order to the conductor and engineer of train — , and the injury to R. resulted directly therefrom, and R. himself was in exercise of ordinary care, then for such negligence the defendant would be liable. But if you find that the defendant did not so entrust its business, and this particular business, to the assistant train dispatcher, or the telegraph operator, or to either or both of them, then, as to the one or both as you may find to whom the defendant had not thus entrusted this particular business, the relation of fellow-servant would exist between such one or both and tlie engineer R., unless you find that they, or either of them, had authority from the defendant to control his movements in regard to this train, and had the right to order him in regard to its movements, and did so order him, and the train was moved, and for the want of care of such a fellow-servant to whom this business was not so entrusted, and who had not the authority to order, and did 1814 INSTRUCTIONS TO JURY. not so order, the conductor and engineer, the defendant would not be liable.^ 1 Johnston, J., in Rogers v. P. L. E. R. R. Co. Sec. 2025. Acts done by servant at request of a feUow-servant — Liability of master. The court instructs the jury if they find from the evidence that the said M. was working at one place in said mine, and was requested by a fellow-servant to go to another place in said mine to assist said fellow-servant in putting up said post, and while so assisting said fellow-servant, received the injury of which he complains, then the plaintiff can not recover, for a servant can not recover for an injury incurred in assisting a fellow-servant, either voluntarily or on the request of such servant.^ 1 From Morris Coal Co. v. Mitchell, supreme court. Affirmed. Huffman, J., given by request. Osborn v. Knox R. R., 28 Am. Rep. 16, Sec. 2026, Obvious danger — Acts done by order of superior servant. If the jury should find from the evidence that the said J, M. was ordered by his superior servant to do an act that is obviously dangerous, and which, when done, was the cause resulting in the injuries of which he complains, this would not render the defendant liable, for the liability of the defendant is conditional upon the exercise of reasonable and proper care. In order for the plaintiff to recover for the negligence of the defendant by its servants, ]\I. must have been free from negli- gence contributing to the injury of which he complains. If the jury find from the evidence that, at the time said M, attempted to assist to pull up the post that had been knocked down, it was obviously rash and dangerous for a man exercising ordinary care and prudence to do so, and the danger was plain and apparent to plaintiff; plaintiff was not obliged to obey an order to do a rash and dangerous thing, and if he did so, under those circumstances, although ordered so to do by a MASTER AND SERVANT — NEGLIGENCE OP MASTER. 1815 superior servant, and in so doing contributed to tlie injury of which he complains, the plaintiff can not recover/ 1 From Morris Coal Co. r. Mitchell, supreme court. Affirmed. Huffman, J., given by request. Sec. 2027. Warning of danger by fellow-servant. If the jury find from the evidence that the plaintiff was warned by his fellow-workman not to attempt to perform the service by which he was injured, and that plaintiff, by the exercise of ordinary care and prudence after receiving such warning, had time to escape from such danger and avoid receiv- ing the injuries of M'hich he complains, and plaintiff disregarded such warning and was injured, he can not recover, for I charge you if you find such to be the fact, that plaintiff would be guilty of contributory negligence by his own fault to the injuries for which he seeks to recover damages from the defendant.^ 1 From Morris Coal Co. v. Mitchell, supreme court. Affirmed. Sec. 2028. Knowledge of danger unknown to master — ^When danger known to servant. I say to you further that no recovery can be had against the master where the cause of the injury, of whatever nature, was unknown to the master, and could not have been known in the exercise of ordinary care. And, furthermore, no recovery can be had where the source of danger is known to the servant, and he, without communicating his knowledge to the master, con- tinues in his service. In such case he is presumed voluntarily to assume the risk, and he can not recover unless it is made to appear that he informed the master of the facts, and con- tinued in his service on the faith of a promise that he would remove the danger by remedying the defects.^ 1 Nye, J., in C. L. & W. R. R. t;. Nehl, supreme court, 4187. Judgments affirmed. 1816 INSTRUCTIONS TO JURY. Sec. 2029. Knowledge of dangerous methods amounts to ac- quiescence and assumption of risks. "If it be conceded that the switching of cars from the main track to a side track while the train is in motion is a dangerous mode of doing business and ought to be regarded as evidence of negligence, still all employes who entered the service of the company with full knowledge that such Avas the practice, or acquired such knowledge afterwards, and remained in the service without the least objection thereto, and fully acquiesced therein, must be regarded as having consented to the practice or as having waived any objection thereto, and therefore as having taken the risk upon themselves. ' ' ^ 1 Railroad Company r. Knittal, 33 O. S. 468. Sec. 2030. Knowledge of work and assumption of risks. If the jury find from the evidence that the said J. M. entered the employment of the defendant to perform the work of a miner, and he had "knowledge of the kind of work he was to perform, then he assumed the ordinary risks and dangers of the service, and he accepted the service subject to such risks thereto."^ 1 From Morris Coal Co. r. Mitchell, supreme court. AflBrmed. Huff- man, J., given by request. Judgments of common pleas affirmed and charge approved, 27 W. L. B. 347. Knowledge of danger is not negligence per se. 4 Am. & Eng. Enc. of Law, p. 35, n. 2. City of Circleville v. Thorne, 1 O. C. C. Rep. 359. Sec. 2031. Duty of railroad conductor. It is the duty of the conductor to use ordinary care in the discharge of the duties of his employment. If he has charge and control of this train of the defendant, and has power to direct and control the services of the plaintiff on behalf of the defendant, then his duty would be to exercise ordinary care in the discharge of these duties; and ordinary care means the care that a person of ordinary prudence would use under the MASTER AND SERVANT — NEGLIGENCE OP MASTER. 1817 same or similar circumstances. It is for you to say, from the testimony in the case, whether or not the conductor exercised this ordinary care in the discharge of the duties of his employ- ment. If he did, that is the extent that the law requires of him, and the defendant would not be liable. If he did not, and his failure to exercise this ordinajry care resulted in injury to the plaintiff, and he occupied such a position as the court will hereafter define in the employ of the defendant, as would make the defendant liable to the plaintiff for his negligence, then they would be liable. This is for you to determine from the testimony. If you find that he exercised this ordinary care, then your verdict should be for the defendant, so far as this charge of negligence is concerned in the defendant. If he failed to exercise this ordinary care, and it produced the injury to the plaintiff, then your verdict should be for the plaintiff, unless you find for the defendant on other grounds.^ 1 Waight, J., in C. A. & C. Ry. Co. v. Sharp, supreme court, unreported. Judgment affirmed. Sec. 2032. Railroad company deemed to have knowledge of defect — Burden of proof on company to rebut. Under a statute in force in this state at the time of this accident, and applicable thereto, it is provided : "If the employes of any railroad corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachment thereto belonging, owned and operated, or being run and operated by such corporation, 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 employe, or his legal representative, against any railroad com- pany for damages on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation." 1818 INSTRUCTIONS TO JUBY. So that if it shall have appeared to you that Mr. J.'s death occurred as a proximate result of a defect which existed in this brake-rod, which caused it to break, and produced the injuries causing such death at a time v.^hen he was acting as the employe of defendant company, then the company is deemed to have had knowledge of such defect at and before the time of such injury, and the fact of such defect is prima facie evidence of negligence on the part of defendant company, which simply means that, in the absence of any other evidence in the case bearing upon the knowledge of defendant company, it would justify and require the jury to presume that in the respect pointed out defendant was negligent. This presumption which arises under the circumstances named, however, is no more than a presumption which may be met and overcome by other proofs advanced. If such presumption arises, then upon the question as to whether defendant company actually knew, or by the exercise of ordinary care could or ought to have known such defect, or to put it the other way, whether or not defendant company was negligent, the burden of proof is upon defendant company to overcome such presumption or inference of negli- gence, not that the company would be required to satisfy you that it was not negligent, but to show, ha\dng fairly weighed all the proofs, that it probably was not negligent. Sec. 2033. Duty of railroad company as to inspection — ^De- fect in brake-sta^. The company owed the duty to its employes to exercise vigilance in using ordinary care to maintain, and in maintain- ing, the car and its appliances, and keeping the same in reason- able repair, and in the performance of this duty it must exercise ordinary care in adopting means of inspection, wdth a view of determining its condition, and must supply itself with facilities for making repairs from time to time when needed. If the jury find that the railway company had in its employ an adequate force of careful and competent car inspectors, at various places along its line, through which this car in the course MASTER AND SERVANT — NEGLIGENCE OF MASTER. 1819 of traffic passed, and whose duty it was, and who did, upon the arrival or departure of said car, inspect the same by a careful examination and attention to it, with a view of determin- ing any visible or apparent defect in said car or its equipments, and if you find that sufficient instructions Avere given to said inspectors as to what to do in their work, and that such instructions and method of work were enforced by the company, and if you find that shortly before this accident the car was inspected in this manner by a careful and competent inspector in the employ of the R. R. Co., and this defect in the brake-staff was not discovered by said inspectors, or reported to the company, and that said company had no knowledge, through any of its agents or officers, of the crack or flaw in the brake, that then the defendant has performed its duty to decedent in that regard. Now, this has a meaning that may not be clearly apparent to you in some respects. It was not sufficient that the company should supply a sufficient number of competent inspectors. The company's duty went further and required of it when it supplied the inspectors to also use reasonable care in furnishing them reasonably sufficient instructions as to the due performance of their duties. It would not be a sufficient compliance with its legal duty for the railway company to provide sufficient com- petent inspectors and leave them to the performance of their duties without reasonable instructions as to their duties to enable them to reasonably accomplish the object intended, to-wit: The exercise of ordinary care to ascertain the condition of the machinery. True, if the inspectors actually performed the duty of ordinary care required of the company as to inspections, it would not matter that the company had failed to furnish proper instructions. You will bear in mind that for the mere neglect of duty on the part of the inspectors the defendant company would not be liable because such inspectors are fellow-servants with J.; that is, if you find it was the duty of the car inspector, in the event that there was anything in the appearance or condition 1820 INSTRUCTIONS TO JURY. of the visible portions of the brake-staff to raise a doubt as to the soundness of the hidden portions, to examine said hidden portion for possible defects, and if you find that there was, at the time of the last inspection of said car, anything in the condition of the visible portions of said shaft or rod which would raise a doubt in the mind of a competent inspector as to the soundness of the hidden portion thereof, and the inspector failed or neglected to examine the same, and by reason of his failure so to do the car was passed into J. 's hand, and so caused his death, for the negligence of said inspector there can be no recovery against defendant. Still, if the inspector's mode of examination was a negligent one, but it was made in the manner directed by the company, or with the full knowledge of the company how it was made, and that manner was negligently defective, the defendant would be liable for such negligence. In its rules established as to inspections, and the means provided for duly carrying them out, to the effect of reasonably accomplishing the legal end of a due performance of its duty, the company was bound to be vigilant in taking all reasonable precautions; that is, it was bound to exercise that degree and kind of care which ordinarily prudent persons are ordinarily accustomed to exercise under the same or similar circumstances, which you have the right to know and consider how such matters are regulated and carried on by other railways; the rule given you does not mean that if other railM^ays engaged in similar business are accustomed to perform their duties in this respect in a negligent manner, that such fact would justify this defend- ant in a similar negligence. The objective result of this rule desired to be reached is that, in the operation of the road and the performance of the duty by the employe, he shall be as reasonably safe personally as vigilance in the exercise of ordinary care for his safety on the part of the company ordinarily can render him. Nor is the mere exigency of their traffic any excuse relieving a company from the due exercise of ordinary care in maintaining MASTER AND SERVANT — NEGLIGENCE OF MASTER. 1821 their machinery in a reasonably safe condition. But whether or not such due care is exercised must be determined, having in mind, together with the other evidence bearing thereon, the uses made of such machinery in the company's traffic, and giving due consideration to the exigencies thereof, and the natural manner in which such ordinary care could be reasonably exercised, considering the surrounding situation and the reason- able performance by the company of its duties to the public as a common carrier, and its other operations in carrying on its railway and business.^ 1 George F. Robinson, J., in The P. & L. E. R. R. Co. v. Johnston's Admr., S. C. 4351. Affirmed by circuit and supreme courts. Sec. 2034. Burden of proof of contributory negligence on de- fendant unless plaintiff's own testimony- raises inference. The burden of proof, as I have said to you, to show negligence upon the part of the company is upon the plaintiff. The burden of proof to show contributory negligence upon the part of the plaintiff is upon the defendant, unless, from the plaintiff's own testimony, it may fairly be inferred that he was negligent. If, upon the plaintiff's own testimony, a presumption may fairly arise that he was negligent, then the burden is upon him, the plaintiff, to remove that presumption. In determining whether the plaintiff contributed to his injury by his own want of care, you will consider what he knew, or should have known, as to the condition of the roadbed, and as to whether or not the spaces between the ties were filled ; what he saw at the time of the injury, or should have seen ; the manner in which he did his work, and all the circumstances and surroundings. If you find that the plaintiff was without fault, and that his injury was caused by the alleged negligence of the company, you will then render a verdict in his favor. 1822 INSTRUCTIONS TO JURY. Sec. 2035. Contributory negligence considered with reference to directions of master. But it should be remembered that where the injured party acts in obedience to the direction of his master, or his superintendent, who has authority to control the conduct of the employe, and he is thereby injured in so doing, his obedience to said directions will not be deemed such contributory negligence as would defeat an action, unless the danger was so obvious as to make his obe- dience under the circumstances unreasonable, having reference to his personal safety and the authority of the master. If the defendants, or their superintendent, which is the same thing, induced the plaintiff (or decedent) to act in the manner he did, and the injury resulted thereby, and the plaintiff's (or dece- dent's) obedience in that respect was not unreasonable under the circumstances, they can not successfully set up such acts as a defense. Under such circumstances you are instructed that the con- tributory negligence can not be imputed to the plaintiff (or decedent) if he acted in good faith and reasonably under the circumstances and pursuant to the express instruction of his master, or of his duly authorized superintendent. It appears to the court to be grossly inconsistent for the defendant to direct the decedent to do certain acts or to perform certain services in the line of his duty to them, and then be permitted to assert that the obedience to such orders was negligence on his part that would defeat an action to recover damages resulting from injuries caused thereby, if the plaintiff (or decedent) acted reasonably under the circumstances.^ 1 Voris, J., in Quinn v. Ewart, Summit Co. Com. Pleas. Sec. 2036. Contributory negligence of servant of railway when slight as compared with negligence of master — Present statutory rule. If you find that both plaintiff and defendant were guilty of negligence, you will then be called upon to determine, by virtue of this statute, which negligence was greater, that of defendant MASTER AND SERVANT — ISTEGLIGENCE OF MASTER. 1823 or of plaintiff. Section 9018 of the code now provides that in actions by an employe against a railroad company for personal injury, the fact that the employe was guilty of contributory negligence shall not bar a recovery when such negligence was slight and that of the employer greater in comparison. So that if you find that the negligence of plaintiff was slight as compared with that of defendant, and that its negligence was greater, your verdict should be for the plaintiff, but in such cases this statute provides that the damages must be diminished by the jury in proportion to the amount of negligence attributable to such employ. If the negligence of the plaintiff, the employe, was greater than that of the defendant, this statute would not apply. There- fore, this is the conclusion of the court, if under any circum- stances — if it should appear in the evidence in this case that the negligence of the plaintiff was greater than that of the defendant, then, of course, the ordinary rules of evidence would apply irrespective of this statute, and the jury would in that event be called upon to determine what, as in the ordinary run of cases irrespective of this statute you would be called upon to determine what the proximate cause, or direct or immediate cause of the injury was, whether it was the negligence of the plaintiff or that of the defendant.^ 1 Banner v. The C. C. C. & St. L. Ry. Co., Franklin Co. Com. Pleas. Kinkead, J. Sec. 2037. Servant injured while working on derrick car- Negligence by running engine into same — Without disconnecting machinery on such car. 1. Law of another state governs — Negligence of a fellow- servant. 2. Duty of master to provide safe place to ivork. 3. Contributory negligence. 4. Concurrent negligence. 5. Proximate cause differentiated from concurrent negli- gence 1824 INSTRUCTIONS TO JURY. 1. Law of another state governing. The injury complained of occurred in the state of Montana, by the laws of which state the rights of the parties must be determined. That state is governed by the common law touching this question. Under the common law it was the duty of the master, and it was the duty of the defendant in this case, to use due and ordinary care in the selection of servants, and to furnish proper means and appliances for carrying on the work, and to furnish a safe place to work. If the master, the defendant in this case, performed this duty, it was not liable for injuries to plaintiff as a servant caused by the negligence of a fellow-servant engaged in the same general business. The master can not be held to be an insurer of the safety of the servant, being bound only to the observance of ordinary care for his protection. The negligence of a fellow- servant is one of the risks incident to the employment which the servant assumes at the time he enters the employment. The claim of the plaintiff is that he and the defendant's servants were not fellow-servants, but the latter was the vice- principal of defendant company, representing it, and performing its duties at the time. The defendant claims that plaintiff and P. were fellow-servants, that plaintiff assumed any risks from negligent acts of P., and if the latter was guilty of any negligence proximately causing his injury, that it is not responsible there- for, and consequently it can not be held liable in this case. It is made clear therefore, that the jury should decide this question first. The law by which you will determine this fact will be given you by the court by the application of which to the evidence the jury Mali make its decision. The common law, and the law of Montana, is, that all who serve the same master, work under the same control, derive authority and compensation from the same source, and directly co-operate with each other in the particular business, and neither one of them are invested with a power of control in the conduct and management of the business of the master so as not to be clothed with, or not to be empowered to perform, the master's duties, or who does not have general MASTER AND SERVANT — NEGLIGENCE OF MASTER. 1825 charge of the construction work, or the general control over the tools and machinery, and the places of work, or the hiring and discharging of employes, are to be considered fellow-servants. On the other hand, a vice-principal is one with whom the master invests the general charge, control and supervision over a particular work being carried on by the master, conferring upon him entire charge and control over the property, and the employes, with power to hire and discharge, and with power over the tools and machinery, and complete charge of con- struction work in hand in the absence of the master. A person with such powers is to be regarded as a vice-principal, and a direct representative of the master, for whose negligence in the conduct of the work and business within the line of his duty the master is responsible. If the jury find that P., the servant of the defendant, did not have control, management and supervision over the work in question on behalf of the defendant company, that he did not have the selection of the employes of defendant engaged in this particular work, that he was not invested with control and management of the property of defendant, of its employes, of its tools, machinery, and did not have complete charge of the construction of the work in hand, but that he was a mere foreman with power to direct a gang of men, including plaintiff, in a mere separate piece of work in one of the branches of service of defendant, then the jury should find P. to be a fellow-servant of the plaintiff and not a vice-principal of the defendant, and that it is not responsible for any negligence of P., if any the jury may find. But if the jury finds that P. was a fellow-servant, and that as such he was guilty of negligence in any of the particulars charged, causing injury to plaintiff, under the rule of law that a servant assumes the risks incident to the negligence of his fellow- servant, your verdict should be for the defendant and against the plaintiff. 1826 INSTRUCTIONS TO JURY. But if, on the other hand, the jury finds that the defendant placed P. in the control, management and supervision of the work in question, in the absence of defendant, with power to select servants, with general power over the tools, machinery and appliances, and of the furnishing of a place for the plaintiff to work, then the jury would be justified in concluding that the defendant is responsible for any negligence which it may find P. to have been guilty of, as charged in the petition, if it ])r()ximately caused the injury complained of. If the jury should (•o find, then your attention is directed to the specific charges of negligence contained in the petition. 2. Duty of master to provide safe place to ivork. It was the duty of the defendant to use ordinary care to furnish plaintiff a safe place to work. Whether defendant did this is a pure question of fact for the jury to determine from the evidence. The defendant was not an iuvsurer of the safety of the plaintiff, being bound merely to use ordinary care in placing him at work, and in the inspection of the machinery, looking to the safety of the. plaintiff Avhile at the work assigned to him, as well as ordinary care in directing the movement of the car on which plaintiff had been assigned to, and was at work, as well as to use ordinary care in giving reasonable warnings to plaintiff of tlie intention to move the car while the latter was at work thereon, so as to avoid injury to him. You will also determine whether the defendant exercised a power of control over the engine used in moving the car on which plaintiff was working. You will look to the evidence and determine under the instructions, whether defendant used ordinary care in the particulars named, or whether it failed to do so, and was negligent. If you find that the defendant was not guilty of the negligence in any of the particulars alleged, that will be the end of your deliberation, and your verdict should be for the defendant. But if you find that the defendant was guilty of negligence in the particulars charged, or in any one of them, you will then determine whether such negligence on the part of the defendant proximately caused the injury to plaintiff. MASTER AND SERVANT NEGLIGENCE OF M.^TER. 1827 3. Contributory negligence. It is charged by the defendant that if it be found that it was negligent in any of the respects alleged in the petition, that the plaintiff himself was guilty of negligence which directly contributed to and was the proximate cause of his injury. It is averred that plaintiff assumed an unsafe position while working on the engine ; that he failed to observe the danger which was obvious and incident to the work ; that if the car was in gear when he went to work ho was guilty of negligence in failing to observe that fact, and that he failed to observe ordinary care for his own safety. In other words, it is charged that plaintiff was guilty of con- tributory negligence. Contributory negligence can operate to defeat plaintiff's recovery for the negligence of the defendant only when it directly and proximately causes the injury ; or when both plaintiff and defendant were guilty of negligence, and the negligence of both of them directly contributed to cause the injury complained of. The burden of proving contributory negligence is upon the defendant, unless the evidence introduced by plaintiff himself tends to show that the plaintiff was guilty of negligence. If contributory negligence is suggested by plaintiff's own evidence, then the burden is on him to remove the suggestion or inference, and show himself blameless to the jury. If it is not so suggested by plaintiff's own evidence, then the burden of establishing it rests upon the defendant, which he must do by a preponderance of evidence. Plaintiff can not recover compensation for an injury which he might have avoided by the use of ordinary care and prudence under the circumstances. So if the plaintiff did not take reason- able care under the circumstances, and he thereby proximately caused the injuries, he can not recover. All that the law requires of the injured party in this respect is that he should act with reasonable care and prudence under the circumstances known to him, considering the means of knowledge he had, the nature of the work which he had been performing for the 1828 INSTRUCTIONS TO JURY. defendant, and his knowledge and familiarity with the machinery and appliances about which he was set to work, and his previous opportunity, and his opportunity at the time, to learn thereof, his inexperience, intelligence, and judgment as you may find them to be from the evidence. 4. Concurrent negligence. If you find that both plaintiff and defendant were guilty of negligence, and that the negligence of both was contemporaneous and continuing until after the injury, and that the negligence of each was a direct cause of the injury, without which it would not have occurred, the plain- tiff may not recover, and your verdict should be for the defend- ant. But if you find that the negligence of the plaintiff, if he was guilty of negligence, was not contemporaneous and con- tinuing, as stated, you will then determine whether the negli- gence of plaintiff or of the defendant was the proximate cause of the injury. The law regards the proximate cause attaching legal consequences thereto. Consequently the jury must under- stand the meaning of the term. 5. Proximate cause differentiated from concurrent negligence. The proximate cause of an injury is that cause which in a natural and continuous sequence, unbroken by any new, indepen- dent cause, produces the injury, and without which the injury would not have occurred. Under the rules given the jury concerning the alleged negligence of both plaintiff and defendant, the jury is instructed that if it should find that the plaintiff was guilty of negligence in any of the particulars charged, and that the defendant was also guilty of negligence, but that the negligence of plaintiff was not contemporaneous nor continuing with that of the defendant, and that the plaintiff's negligence, without the intervention of the negligent act of the defendant, would not have produced the injury, and that the negligence of the defendant in such case was a new and independent cause, without which the injury would not have occurred, and that the same produced the injury, your verdict should be for the plaintiff. MASTER AND SERVANT — NEGLIGENCE OP MASTER. 1829 But if you find that the negligence of the plaintiff was not concurrent with that of the defendant, and that there was no intervening, new, or independent negligence of the defendant, which produced the injury, but that the negligent act of the plaintiff produced the injury, your verdict should be for the defendant.^ 1 Madison v. Pittsburg Const. Co., Franklin Co. Com. Pleas, Kinkead, J. Case affirmed by circuit and supreme court. Sec. 2038. Death of engineer from derailment of train. 1. General duty of plaintiff. 2. Defendant not an insurer — Ordinary care required. 3. Rule of ordinary care varies under circumstances. 4. Negligence must cause injury. 5. Excessive speed as cause of derailment of train. 1. General duty of defendant to plaintiff. I will first state to you, gentlemen of the jury, the general rule of law as to the duty which the defendant owed to the plaintiff's decedent. It was the duty of the defendant to exercise reasonable and ordinary care to furnish the plaintiff's decedent a safe place to work, and safe machinery, tools and appliances with which to do his work. That rule required of the defendant that it should use ordinary care for the safety of the plaintiff's decedent. 2. Defendant not an i^isurer — Ordinary care required. The law does not make the defendant an insurer of the safety of its employes so that a liability is not established against it upon making proof merely that its employes suffered an injury while in its service and in the course of his employment, but the rule required at its hands that it should use that degree of care for his safety which persons of ordinary care and prudence are accustomed to exercise under like circumstances and conditions. So that if you find in this case, gentlemen of the jury, that in the respects in which the plaintiff claims the defendant was guilty of a want of care for the plaintiff's decedent, it did use ordinary care for his safety, as I have defined ordinary care, 1830 INSTRUCTIONS TO JURY but that notwithstanding such ordinary care on its part for his safety, the accident occurred, then the plaintiff is not entitled to a verdict at your hands, and your verdict should be for the defendant. 3. Rule of ordinary care varies with circumstances. But if you find that the defendant was negligent m somt one or more or all of the respects alleged in the amended petition, and that this negligence — this want of ordinary care — was the proximate cause of the derailment of the train and the consequent death of plaintiff's decedent, then the plaintiff is entitled to a verdict at your hands. I have just said to you, gentlemen of the jury, that the rule of duty which the defendant owed to the plaintiff's decedent was to use ordinary care — that is that degree of care which persons of ordinary care and prudence are accustomed to exercise under like circumstances and conditions. This is always the rule which measures the duty of the master to his servant, but when this care is called into exercise under circumstances of peculiar peril, a greater amount of care is required than where the circumstances are less perilous. This is so because ordinarily prudent and careful persons, having in view the object to be attained, and a just regard for the rights of others, are, under circumstances of peculiar peril, accustomed to exercise greater care than where the circumstances are less perilous. The amount of care is increased where the peril is greater, and in proportion to the increase of the peril, but the rule or standard remains the same, that is, ordinary care under the circumstances of the particular case. 4. Negligence viust cause injury. No presumption of negli- gence arises against the defendant from the mere fact that the train was derailed. The plaintiff alleges in her petition that the accident happened by reason of the concurrence of several causes, and that these causes were due to negligence or want of due care on the part of the defendant. Negligence may consist either in doing something which ought not to have been done, or in omitting to do something which ought to have been done. MASTER AND SERVANT — NEGLIGENCE OF MASTER. 1831 To entitle the plaintiff to recover, it must appear from a pre- ponderance of the evidence, that is, the greater weight of the evidence, that the defendant was negligent in one or more or all of these respects alleged in the petition, and that this negligence on the part of the defendant was the proximate cause of the derailment of the train. But it is not essential to a recovery on her part that the evidence shall establish that the defendant was guilty of negligence in all of the respects alleged in the petition. It is sufficient if the proof establishes the fact that the defendant was guilty of negligence in one or more of these respects, provided it also appears from a preponderance of the evidence that the negligence established was the proximate cause of the derailment of the train. By proximate cause is meant the direct cause producing the injury as distinguished from the remote cause of the injury. 5. Excessive speed as cause of derailment of train. The peti- tion also charges that the derailment of the train was in part due to the excessive speed at which the train was being run at the time of the accident, and it is charged that this speed was due to the order and direction of DeV. and E., who are alleged in the petition to have been superior authority over the plaintiff's decedent, and with power and authority to direct and control his conduct, that the plaintiff's decedent was not familiar with the operation of the engine, and did not have any knowledge of its operation in the passenger servdce, nor with the speed which it could safely develop, and that this was known to the defendant, and that DeV. and E. were placed on the train for the purpose of directing the plaintiff's decedent in the operation of the train. If you find that the engine was being run at the time of the accident by E., the road foreman of engines, and that the derailment was due to the excessive and dangerous and negligent rate of speed — that is, to such a rate of speed as amounted to negligence on his part under the rules w^hieh I have stated — or that it was due to the negligent and dangerous rate of speed combined with other acts of negligence charged in the petition against the defendant, then the defendant will be liable. 1832 INSTRUCTIONS TO JURY. But if you find the rate of speed was not excessive, dangerous and negligent under all the circumstances and conditions dis- closed by the evidence, then there can be no recovery against the defendant upon that ground, and that is true whether the engine was being run by E. or by the plaintiff's decedent under the orders of E.^ >Milbourne, Admrx. v. The Hocking Valley Ry. Co., Com. Pleas Court, Franklin Co., O. Bigger, J. Sec. 2039. Failure to warn and instruct servant and to suf- ficiently light machinery — Injury to servant in operating power shears. 1. Statement of claims. 2. Burden and degree of evidence. 3. Failure to observe ordinary ceke hy either party con- stitutes negligence. 4. Proximate cause. 5. Plaintiff's ovm evidence raising inference of negligence. 6. Whether defendant required to warn plaintiff for jury. 7. Rule of law as to obvious danger. 8. Duty to light machinery. 1. Statement of claims. The particular acts of negligence charged against the defendant are : First. That it failed to instruct and warn plaintiff of the dangers of said work. Second. That defendant failed to provide a safe place to work in that it was not sufficiently lighted for him to see how to do the work with safety. These two claims are the only ones submitted to the jury. The defendant denies that it was negligent at all, and claims that if it was guilty of any negligence as alleged by plaintiff, the injury sustained by the plaintiff was caused by his own negli- gence, the alleged negligence contributing proximately to his injury consisting in his act of placing himself and remaining, without necessity, in a position of obvious danger, by placing MASTER AND SERVANT — NEGLIGENCE OF MASTER. 1833 his hand and allowing it to remain in a place and position of obvious danger when it was not necessary so to do, so that by the usual operation of the power shears in cutting the rails, plaintiff was injured. By reply plaintiff denies that he was negligent thus causing his injury. 2. Burden and degree of evidence. The burden is upon the plaintiff to prove that defendant was negligent as charged, and that the same caused the injury to him. This must be done by preponderance of the evidence; that is, the greater weight thereof. The credibility of the witnesses, the credit and weight to be given them is within your exclusive province. 3. Failure to observe ordinary care hij either party constitutes negligence. The failure to obser\^e ordinary care in performing the duties required by the circumstances in this case respectively of plaintiff' and defendant would constitute negligence. The rule of ordinary care required of the parties in this case must properly be what is reasonably and ordinarily required by the nature of the case and such as the circumstances reasonably and ordinarily called for. Anything less than this must be regarded as negligence, and whenever such negligence of the one or the other parties in failing to observe the care required of each of them produces the injury, this furnishes the basis of legal responsibility. 4. Proximate cause. The act of but one party can constitute the proximate cause of injury to which the law attaches legal consequences. If the defendant was negligent, and its negligent acts and not those of plaintiff, produces the injury, then the verdict may determine it's legal liability. Though the defendant be negligent, still if the plaintiff him- self be negligent, and it be found that his own negligent conduct and not that of the defendant, directly caused the injury, then the verdict will be that he is entitled to no relief. 5. Plaintiff's own evidence raising inference of negligence. 1834 INSTRUCTIONS TO JURY. If plaintiff's own evidence raises an inference that he himself was negligent, the burden is on him to remove this suggestion, and show himself free from negligent acts producing his own injury. If there be no such inference of negligence, then defend- ant must show such contributory negligence on the part of plaintiff as directly caused the injury, this to be made to appear by a preponderance of evidence. 6. Whether defendant required to warn plaintiff for jury. The court submits this case to the jury for it to decide whether under the circumstances of this case, ordinary care required defendant to notify, instruct or warn plaintiff of any dangers arising from the operation of the machine, and whether the defendant used ordinary care in lighting the machinery so as to enable the plaintiff to do the work in safety. If there was any danger arising from the operation of the machine in this case the question for the jury to decide is whether it was apparent or obvious or hidden. Whether there was an obvious danger in the operation of the machine is a question which the jury must determine before deciding whether any warning or instructions were necessary to be given by the defendant to plaintiff, and the failure to give the same was negligence. 7. Rule of law as to obvious danger. Wliere a danger in the operation of machinery is obvious it will be presumed that an adult servant of ordinary intelligence, whether he speaks and understands our language or not, may be capable of learning and kno\^^ng the usual or ordinary apparent dangers arising there- from. If the dangerous condition be such as would be apparent to an ordinarily intelligent, casual observing, prudent person, or such as may be readily seen and observed by him. The master owes no duty whatever to give instructions or warning to such person, or to no one else in the case of an obvious danger in the operation of machinery, unless it be to one who is inexperienced, if such danger may not be obvious to one without such experience. MASTER AND SERVANT — NEGLIGENCE OF MASTER. 1835 The duty to give instructions or warning to the plaintiff was not incumbent on defendant in this case, unless there was danger in the operation of the machine known to defendant, or which ought to have been known to it, unless it appears that by reason of the inexperience of the plaintiff the defendant had reason to believe the plaintiff did not know and would not discover it in time to protect himself from injury. [9 O. C. C. 680.] If it appear that there were elements of danger in the opera- tion of the machinery which were or ought to have been obvious to this plaintiff, and that he had average intelligence or capacity, though without much experience, using due care to appreciate, learn and know of such dangers, and that he ought to have known thereof, and that ordinary prudence on his part would enable liim to avoid injurj^ then in such case, no warning would be :ic'eessar3^ 8. Duty to light machinery. It was the duty of the defendant '■> use ordinary care in lighting the machinery considering the nature of the work and the machinery, in a reasonably sufficient raanner to enable the plaintiff, himself using due care, to do his Avork in safety. If the jury find that no warning or instructions were necessary to be given plaintiff', according to the law given you in this charge, and you further find that there was adequate light, your verdict should be for the defendant. If warning and instructions should liave been given, and were not given, and the place was not sufficiently lighted to enable plaintiff to do his work safely, himself using reasonable care, and he was injured by reason of the neglect of the defendant in these particulars he is entitled to your verdict.^ ' Franklin Co. Com. Picas. Kinkead, J. Sec. 2040. Injury caused by defective guy supporting der- rick. 1. Statement of claim — Defective guy. 2. Defect, defective, meaning. 3. Knoirledge of defect — Reliance upon promise to repair. 1836 INSTRUCTIONS TO JURY. 4. Appliance of simple construction — Rule to he applied- Risk assumed 5. Reliance on promise to repair only when servant 'lias limited knowledge or where some measure of skill required. 6. Instructions given by master — Effect of disobedience by servant. 1. Statement of claim of negligence. The sole charge of neg- ligence is that one of the guys supporting the derrick was de- fective in that the same was pieced with a chain which contained an open link. Negligence being the omission to use such care as ordinarily prudent persons use under the same or similar circumstances, ordinary care in this case would he such care as those persons who are engaged in the business of operating derricks for this purpose, or similar purposes, are accustomed to exercise in the manipulation and operation of such instrumentalities. Repeating now the charge of negligence, that one of the guys supporting said derrick was defective in that the same was pieced with a chain which contained an open link ; that plaintiff notified defendant of such defective guy and of its dangerous condition, which defect said defendant promised to make safe, and that said injuries were caused by the negligence of the defendants in not repairing the said defective guy. There is some difficulty in interpreting the language of plain- tiff so as to arrive at his meaning wherein he charges the defect in the guy. The plaintiff, remember, must recover, if at all, only upon the theory of his allegations and upon the grounds of negligence alleged, and upon no other. The question is whether the petition charges that the guy was defective in that' it was merely pieced with a chain instead of all being cable — that is, whether the defect charged is that the guy was pieced with a chain rather than of being cable, or whether no complaint is made as to the use of the chain, but rather that the complaint is that the defect charged was that an open link Avas used in the chain. The claim of the plaintiff, MASTER AND SERVANT NEGLIGENCE OF MASTER. 1837 as shown by the evidence, seems to have been based upon an interpretation of the pleading that the defect in the guy con- sisted in the use of the chain rather than the particular defective link in it. One thing is certain, gentlemen, defective appliances is the gist or basis of this charge. 2. Defect, or defective, meaning. The defect alleged in the derrick being that the cable was pieced with a chain which con- tained an open link, I can only aid you, gentlemen, in arriving at your conclusion by instructing you that "defect" or "defect- ive," as used in the averment by the plaintiff, is, in law, or may be considered, in law, as a charge of the absence of something necessary for completeness or perfection ; it includes the idea of a fault or want of perfection in the construction of the guy, which impairs or weakens it and renders it unsafe for the use for which it is intended. The charge of defectiveness made in the pleading excludes the idea of the mere use of an appliance such as is ordinarily used by ordinarily prudent persons familiar with and skilled in the use of such instrumentalities under simi- lar circumstances and for similar purposes. That is the best that I can do, gentlemen, in the way of explaining to you this allegation, and I have carefully marked out to you what I think it includes, and what it excludes, so that you would have no difficulty in looking to the evidence and determining the ulti- mate fact as to whether or not there was any negligence. You will proceed by the application of these rules touching the matter of defects and determine whether the derrick and guy were defective in the manner charged by the petition and as construed, defined and explained by the court, or whether they were constructed in a manner as are used by ordinarily prudent persons using similar instrumentalities. If you find that they were and that there was no defective link, as charged, then your verdict should be for the defendant. 8. Knoirledge of defect — EeHance upon promise to repair. If, however, you find that the guy was defective in the manner charged, then you will proceed to the further consideration of the conduct of plaintiff himself, for the purpose of determining 1838 INSTRUCTIONS TO JURY. whether his conduct was such as in law and in fact entitled him to recover. Plaintiff avers that he learned of the alleged defective guy, that he called the attention of the defendants to such defects, and that defendants promised to remedy the same. Plaintiff claims that he continued on in his work without the defect complained of by him having been remedied, relying upon the promise made by defendants to have remedied the alleged defect. 4. Appliance of simple construction — Ride to he applied — Risk assumed. The rule of law governing this phase of the question in controversy is as follows : If the appliances or instrumentalities are of simple construction and the complain- ant, the plaintiff here, was engaged in ordinary labor, using such appliances or instrumentalities, that is of simple construc- tion, and he was entirely familiar with the same, understanding them as fully as did the master, then the plaintiff must be held to haA'^e assumed the risk incident to their use, and in such case he can not recover. 5. Reliance on provii^e to repair only when servant has limited knowledge, or u'herc some measure of skill required. The serv- ant, the plaintiff in this case, was warranted in relying upon the alleged promise of defendants to repair, if one was made, and in continuing in the use of alleged defective appliances, only, if he had, I may say, a limited and imperfect knowledge thereof, and only where some measure of skill and experience possessed by persons more than one would have in dealing with ordinary tools and appliances and an ordinary workman, to enable the servant, the plaintiff here, to know and appreciate the particu- lar defect, if there was one, and the danger incident thereto. If, therefore, you find from the evidence that the appliances or instrumentalities in this case as shown by the evidence were not of simple construction, but that it would require some spe- cial knowledge and skill to have enabled the plaintiff here to know whether a derrick constructed as the evidence shows this derrick to have been constructed, and as you find to have been constructed, and that constructed as it was it would be or was MASTER AND SERVANT NT^GLIGENCE OF MASTER. 1839 inadequate to specially lift the logs which were being lifted at the time, you will then determine from the evidence whether the plaintiff had or had not sufficient knowledge and skill as enabled him to know and appreciate the danger incident to the continued use of the derrick. If you find that it required some knowledge and skill to know and appreciate the dangers from the derrick:, if it was defective, and that plaintiff did not pos- sess sufficient knowledge to know and appreciate the dangers incident to its use and did not know and appreciate such dangers and that he continued in reliance upon a promise made by the defendants to remedy the alleged defect and that the injury caused by the falling of the derrick was due to the alleged defective construction, then your verdict should be for the plaintiff. You will keep in mind, however, that to warrant such a find- ing the derrick must not have been of simple construction and easily understood by ordinary workmen, but there must have been a defective construction, the defendants' attention must have been called thereto, and tliey must have promised to remedy the same, the plaintiff must have relied upon the same. You must find all these facts by a preponderance of the evidence to warrant you in finding for the plaintiff. 6. Instructions given hjj master — Effect of disohedience by servant. There has been some evidence here tending to show that certain directions were given by the master, the defendants in this case, to the workmen there engaged in working this derrick, that they should do certain things with reference to the large log. You will remember the evidence upon that. The plain- tiff, you will recall, has denied any knowledge of having heard any directions given to saw the log in two before they undertook to raise it. The court says to you tliat if you find the men engaged in operating this derrick otlier than plaintiff had been instructed by the defendant not to lift the log in question until it had been cut in two, and you find that at the time of plaintiff's injury they were lifting sueli log without having it first cut in two, in disobedience of their instructions from the defendant, 1840 INSTBUCTIONS TO JURY. and that such disobedience of the orders given them caused the fall of the derrick, then plaintiff can not recover for the negli- gence of the other employes engaged with him at the derrick in thus disobeying their instructions, because such negligence would be the negligence of a fellow servant for which the plain- tiff can not recover. There would be an exception to that, how- ever, that if they proceeded to raise this log under the directions of a foreman, who is a vice-principal in law, and represents the principal, they would be justified in acting upon his directions, and if he was careless and negligent, the servant would not be barred by that act because he represents the principal and it is the same as the principal acting himself, and if there was any negligence the plaintiff would be entitled to recover. The damages are set forth and alleged in the petition and in the event that you find a verdict in favor of the plaintiff you will then consider the question of damages and the evidence offered in support thereof and will award to the plaintiff such damages as in your judgment will compensate him for the loss sustained. There is an allegation in the plaintiff's petition that seeks to recover the sum of $25.00 for special damages for money expended by way of physician's services, and it is my duty to say to you that there is no evidence here to support that claim and that therefore you will disregard it.^ 1 Franklin Co. Com. Pleas, Kinkead. J. Charge approved by circuit court. Sec. 2041, Railroad company may make rules governing con- duct of employee — ^Duty of employee with reference to. "A railroad company has the right to make such rules and regulations for the conduct of its servants and agents while engaged in its service as, in its judgment, are reasonable and proper, as would conduce to the safety and comfort of its em- ployees; and all servants, while engaged in such service, with a knowledge of such rules and regulations, are bound to act in conformity therewith ; and if injuries are sustained by them while acting in violation thereof, no recovery can be had of the MASTER AND SERVANT — NEGLIGENCE OP MASTER. 1841 companj^ therefor, if such violation was the cause of, or materi- ally contributed to, the injury."' iWolsey V. Railroad Co., 33 0. S. 227. Tt is the duty of a railroad company to make regulations for protection of employees from dangers. Railway Co. r. Lavalley, 36 O. S. 221. This duty is satisfied by a reasonable provision for a particular case instead of a rule. Railway v. Zepperlein, 1 O. C. C. 36. The statute require.s rules to be made and published. R. S., sec. 3334. Sec. 2042. Liability of railroad company for violation of rules by employee. "The company is not liable for an injury which happens to an employee in consequence of a disregard of its plain instruc- tions, even though other employees also disregard the same. " If a railroad company in the exercise of its discretion adopts a rule for the conduct of its employees while engaged in its service, and intended for their personal protection against in- jury, and an employee, knowing the rule, neglects to avail him- self of its pro\'isions, and in consequence of such neglect sustains an injury, the company can not be held liable therefor."^ 1 From Wolsey v. Railroad Co., 33 0. S. 227. An employee has no right of action against the company for an injury incurred while breaking a rule of the company. Pilkington v. R. R. Co., 70 Tex. 226, 83 Ky. 589; Wood on Railroads, sec. 382. Sec. 2043. Measure of damages. The measure of plaintiff's damages is compensation for the actual injury received by him. You can not allow anything for the purpose of punishment, or by way of example. The measure of plaintiff's damages, in case he is entitled to recover, is compensation— what will fairly and reasonably compensate him for the injury, nothing more, nothing less. In determining the amount of compensation, you will consider the pain which the plaintiff has suffered, physical or mental ; the nature, extent, and character of the injury; tlie effect of the injury upon his capacity to labor and earn a living, and all tlie circumstances. 1842 INSTRUCTIONS TO JURY. Sec. 2044. Injury to child of employee. "Although the defendant varied from the usual manner of using the track in question, yet if the plaintiff was not there as an employee of the company, but was there wrongfully, he can not complain of the negligence of the company unless the de- fendant's agents knew that he was there, and wilfully injured him."i "If you find that the defendant company and another com- pany were each rightfully in the joint use and occupation of the transfer track, and the father of the plaintiff, then in the employment of the other company, duly authorized, was en- gaged in repairing a car upon this track; that the plaintiff brought to him his dinner, and that while engaged in repairing said car, shortly thereafter, the father requested the plaintiff child to render him necessary temporary assistance to enable him (the father) to perform tlie work of repairing the car, if he was thus authorized to employ the plaintiff, then the plaintiff' was rightfully upon the track. "- 1 From Penna. Co. v. Gallagher, 40 O. S. 637. - From Penna. Co. v. Gallagher, 40 O. S. 637. Sec. 2045. Joint occupancy of sidetrack by two companies — Relation of servants of one company to the other — Injury to servant by failure to in- spect track. Where a sidetrack or transfer switch is in the joint occu- pancy of two railroad companies, the servants of each company are not the servants of each other, nor fellow-servants with the servants of the other, but their right of recovery in case of injury caused by the negligence upon the part of the other company, in operating said track or switch, or in the carelessness of its servants, is an independent one. In this class of cases the injured person is more than a mere licensee. The relation be- tween the railway whom he serves and the other railway is so far founded on a valuable consideration that it raises upon the MASTER AND SERVANT NEGLIGENCE OF MASTER. 1843 part of that other railway an implied obligation that it will not be negligent as against that servant. Though the company's cars stood on the defendant's transfer switch, through the trespass of said company, it would not absolve the defendant from the exercise of ordinary care in the proper inspection of the same as to such obstructions, and in so using said switch and liandling said cars as not to injure the servants or property of said — • company on its own railroad and premises. If you find by a preponderance of evidence that the transfer track or switch was in the joint occupancy of the two railroad companies, and tlie plaintiff's injury was caused by the negligence on defendant's part in not properly inspecting the said track to avoid obstructions thereon, and in handling cars found standing thereon, whereby the collision and injury occurred, your verdict should be for plaintiff, otherwise for defendant.^ 1 Micliael Bulgar v. X. Y. L. E. & W. If. R., supreme court, unreported. Judgment of circuit court reversed and common pleas affirmed, 28 W. L. B. 128. Sec. 2046. Relation of servant and agency may be inferred from facts and circumstances. The jury is instructed that the fact of agency as well as the powers of an agent, may be established by inference from facts and circumstances which may be proved by the evidence. It is not essential, nor it is always possible to prove an express contract of an employment in order to establish the relation of master and servant, but such relation may be inferred or implied from other facts and circumstances directly established by the evidence. If it may be inferred from such facts and circumstances that the person who commits the injury complained of, was, at the time of the commission of the alleged wrong, engaged in tlic actual conduct of the business of the person charged [the de- fendant], and with his [the defendant's] seeming or implied consent, then under such circumstances the latter [the defend- 1844 INSTRUCTIONS TO JURY. ant] may be held responsible for the wrong of the person directly committing the same, who may be held under such circumstances to be the agent or servant of the defendant, if such wrong was committed within the scope of the apparent scope of agency or employment/ So, therefore, if the jury find from the facts and circum- stances, etc. 3 Thompson on Negligence, (2d Ed.), sec. 580; Diehl v. Roberts, 134 Cal. 164; Perlstein v. Express Co., 177 Mass. 530; Gershel v. Express Co., 113 N. Y. Supp. 919. CHAPTER CXIX. MOB— LIABILITY OF COUNTY FOR INJURY BY. SEC. SEC. 2047. Liability of county for in- 2. The statute and essential jury from mob under elements to recovery. statute. 3. Essential that assault be 1. Statement of claims. made by mob. 4. Amount of recovery. Sec. 2047. Liability of county for injury from mob under statute. 1. Statement of claims. 2. The statute and essential elements to recovery. 3. Essential that assault be made hy mob. 4. Amount of recovery. 1. Statement of claims and essential elements to recovery. He also alleges that on the of , he was a chauffeur in the employ of The Columbus Taxicab and Auto Livery, and was driving an automobile near street in said city of Columbus, Ohio ; that, on that date, while he was in tlie peaceful pursuit of his occupation and employment, distur])ing nobody, driving his automobile as stated, a collection of individuals, who had assembled there for an unlawful purpose, intending to do damage and injury to the plaintiff and others, and who pre- tended to exercise correctional power by violence over the plain- tiff and others, without any authority of law, and contrary to law, assaulted and committed an act of violence on the plaintiff by striking him in the right h;g and ankle with a large stone, whereby plaintiff was seriously injured and handicnjii^ed for manual labor and for earning a livelihood for a long time. Plaintiff alleges that he suffered a lynching at the hands of such mob, tlms unlawfully assembled for the unlawful purpose aforesaid. 1845 1846 INSTRUCTIONS TO JURY. Plaintiff further alleges that he was not furnished with such protection as he was entitled to by law, whereby he suffered the aforesaid lynching at the hands of the mob, as above set forth, by reason of all of which the plaintiff asks judgment against the board of commissioners in the sum of five hundred dollars, for which sum he claims the board is liable. It is, in effect, a suit against the county, and the board of county commissioners are the representatives of the county. 2. The statute. The statutes of this state declare, in sub- stance, that any collection of individuals assembled for any unlawful purpose, intending to do damage or injury to anyone, or pretending to exercise correctional power over other persons by violence and without authority of law, shall, for the purposes of the act, be regarded as a mob ; and the act also provides that any act of violence exercised by them upon the body of any person shall constitute a lynching. Thus we have a definition, a statutory definition of a mob and of a Ijmching, to control the issue in this case. The statutes further declare that any person assaulted by a mob and suffering a lynching at their hands shall be entitled to recover from the county, from the county in which the assault is made, any sum not to exceed five hundred dollars. The suit in question is planted under these statutes. The court instructs you that, before the plaintiff is entitled to recover a verdict, there are certain material allegations which must be established by the preponderance of the evidence. First, that the plaintiff was assaulted by a mob, defining a mob, as I have heretofore defined it to you by reading the statute, or its substance; as already stated, that the plaintiff was as- saulted by a mob, that is, by a collection of individuals assembled for an unlawful purpose, intending to do damage or injury to any one, or pretending to exercise correctional power over other persons by violence, and without authority of law. That is the statutory definition of a mob. Second, that the plaintiff suf- fered a lynching at the hands of such mob; that is, that the mob exercised some act of violence upon the body of the plain- MOB — LIABILITY OF COUNTY FOR INJURY. 1847 tiff, and as I have heretofore said to you, a lynching consists in an act of violence exercised by a mob upon the body of any person whatever. Third, that the alleged assault and lynching at the hands of said mob occurred in this county, about the time alleged in the petition. The exact time is not important. If these three essential elements are proved by a preponderance of the evidence, the plaintiff is entitled to a verdict; but if the plaintiff has failed to so prove any one or more of said elements, he is not entitled to a verdict, and the verdict should be for the defendants. 3. Essential that assault be made by mob — 3Iob defined. The court further instructs you that, while it is essential that the alleged assault, if it occurred, be made by a mob, yet, if there was a collection of individuals assembled at or near the corner of T. street and L. avenue for the unlawful purpose and inten- tion of damaging or injuring anyone, or of exercising correc- tional power over others, by violence and without authority of law, and if, in furtherance of the unlawful purpose on the part of such mob, any one of said mob actually made the assault upoB the plaintiff, it is a sufficient assault by the mob. In like man- ner, if a mob assembled at or near the corner of T. street and L. avenue, as alleged, with the unlawful purpose and intent of exercising acts of violence upon the body of any person, and one of their number at the time and place of the assemblage, in furtherance of their common design, exercised acts of vio- lence on the body of the plaintiff, by striking him on the leg, as alleged, it constitutes a lynching by such mob. The court further instructs you that, to constitute a mob, it is essential to prove that the collection of individuals was as- sembled for an unlawful purpose, as heretofore stated, or, being assembled for a lawful purpose, while so assembled, determined among themselves to do some unlawful acts. Now, purpose or intent is an operation of the mind and is not usually proved by direct or positive evidence. Persons do not usually declare that they have assem])led or gathered to- gether for unlawful purposes, so that intent and purpose are 1848 INSTRUCTIONS TO JURY. usually proved by indirect or circumstantial evidence. You Avill, therefore, in determining whether the assemblage was gath- ered for an unlawful purpose, or, after being gathered, deter- mined to do an unlawful act, perform some unlawful act, con- sider the acts and conduct and declarations of the persons whose intent is sought to be proved, as reflecting upon the purpose and intent of the persons collected together, if there were such persons, together with all the other facts and circumstances surrounding them prior to and at the time of and subsequent to the alleged assault, if it occurred, and determine whether the collection of individuals, if assembled as alleged, were present with an unlaAvful purpose or intent either to damage or injure anyone, or to exercise correctional power over others, with vio- lence and without lawful authority. If the plaintiff was struck by a stone, as alleged, and you should conclude tbat the person who stinick him was not a member of a mob, as I have heretofore defined it to you, but acted independently of a mob, then the plaintiff can not recover in this case, for the plaintiff recovers, under the statute, if at all, for mob violence upon him, some one of the mob who may have attacked him or assaulted him with a stone or other weapon, as the case might be. And he can not recover if it was some independent act of some person who was not acting in conjunc- tion with some mob. Gentlemen, the court further instructs you that, if there was a collection of persons assembled as set forth in the petition, for an unlawful purpose, either intending to damage or injure others or to exercise correctional power over others by violence and without authority of law, even though the collection of persons did not specifically intend to injure this plaintiff, if such a collection of persons did injure this plainti1¥, the defend- ant is liable, if the mob or collection of persons had the general intent to injure persons in that immediate locality. 4. Amount of recovery. As heretofore stated, the action is to recover a statutory penalty for an alleged violation of certain Btatutory provisions, and the right to recover is based solely MOB — LIABILITY OP COUNTY FOR INJURY. 1849 upon those provisions, the penalty varying with the aggravation or enormity or veniality of the wrong, rather than the amount of any pecuniary loss which the plaintiff may have sustained, although the idea of compensation enters into the law. The court instructs you with regard to the amount of your tinding, that you shall assess such amount as, in your judgment, under all the circumstances in the case, you regard as just and right, and as you believe the defendant ought to pay, not exceeding, however, in any event, the amount claimed in the petition, to-wit, five hundred dollars. This matter is left entirely to you, to exercise your own judgment under all the circumstances of this case.^ 1 Hoover v. Gibson, et al., Franklin Co. Com. Pleas. Rogers, J. CHAPTER CXX. MUNICIPAL CORPORATIONS— STREETS— SIDEWALKS- CHANGE OF GRADES— SEWERS. SEC. 2048. Dedication of property for public street — Requisites of. 2049. Interest of abutting owner in street. 20.50. Establishment of street by general use. 2051. Streets may be improved to meet public needs — Within reasonable dis- cretion of municipality. 20.52. Must keep sidewalks and cross walks open and reasonably safe — ^Munic- ipality not an insurer. 20.53. Pedestriar.s to use ordinary care in passing along streets — IMay assume city discharged its duty. 2054. Defective street becomes a nuisance, when. 2055. When city liable for defects in streets — Constructive notice. 2056. Sidewalk in defective condi- tion for such length of time that city presumed to know it. 2057. Not liable for mere slipperi- ness from snow or ice — Otherwise if danger from want of repair was en- hanced by snow or ice. 2058. Though city not liable for mere slipperiness from ice or snow — Otherwise if snow or ice allowed to accumulate so as to 1850 SEC. 2059. 2060. 2061. 2062. 2063. 2064. 2065. 2066. 206'; become serious and no- ticeable obstruction — Length of time allowed. Liability of municipality for injury resulting to trav- eler upon stone — Duty of traveler. City to keep sidewalks in reasonably safe condi- tion for travel. Injured party to show ac- tual or constructive no- tice to city. Streets and sidewalks to be kept in reasonable re- pair and free from nuis- ance—Must show actual or constructive notice. Latent defect — Actual notice to be shown. Sewer system — Reasonable care required in con- struction, maintenance and supervision — Pro- viding safeguards to pre- vent backwater from sewer. Injury from change of grade — Purpose of a view of premises. Change of grade within au- thority, and without negligence. Change of grade — Improve- ments made with refer- ence to established grade — Liability for injury from change of grade. MUNICIPAL CORPORATIONS — STREETS — SIDEWALKS. 1851 ajsc. 2068. Change of grade — Statute aa to — Requirements o f owner as to claims 2069. Change of grade — Require- ments as to files and surveys — Reliance upon by abutting owner — Failure to file claim — Skill required of owner — Reliance upon infor- mation furnished by en- gineer. 2070. Change of grade — Plans and profiles — Owner may rely upon information and explanations by en- gineer. 2071. Change of grade — Adopting county roads as street. 2071a. Change of grade — ^Improve- ment made before grade established is at one's own peril. 2072. Change of grade — Rule as to unreasonable grade. 2073. Change of grade — WTiether or not premises abut up- on improvements as af- fecting claim for dam- 2074. 2075. 2076. Reasonableness of grade of street — What should be considered in determin- ing. Change of grade — Recovery of interest on damage. Change of grade — Retaining wall — Whether necessary to protect buildings. SEC. 2077. 2078. 2079. 2080. 2081. 2082. 2083. 2084. 2085. 2086. Streets — Change of grade — Damages — A different form. Change of grade after im- provement — How proved. Whether improvement made in conformity to estab- lished grade. Change of grade — Damages recoverable — Injury to building — Shrubbery — Access to premises — Value before and after change. Damages — Market value — Opinion evidence. Damages — Enhancement of value. Change of grade — Damages — Benefits — Access. Damages to property owner by construction of street. Excavation in street — Negli- gence in making — Sig- nals or lights — Right of tra^-tel subject to tem- porary obstructions or excavations. Obstruction of sidewalk when building. 1. City must permit reason- able part to be used. 2. Right and duty of traveler to use sidewalk. 3. City Jiot liable unless it had notice or knowledge. Ses. 2048. Dedication of property for public street— Requi- sites of. "Three things are necessary to be shown to establish its dedi- cation. The owner must have intended to dedicate the property 1852 INSTRUCTIONS TO JURY. for a street, and to give up his private rights in it, which are inconsistent with its use as a street by the public at large. And he must have evidenced and carried out this intention by some unequivocal act, such as throwing it open to the public, fencing it out, making or recording a plat showing it marked as a street, selling lots upon such plat, and conveying them by deeds refer- ring to the plat. If you find that the owner so intended to dedicate it as a public street, and carried out such intention by acts necessary for that purpose, then the village council must have accepted the dedication, there being no evidence of any acceptance by the public before the incorporation of the village ; and the passage of an ordinance recognizing the street and providing for its occupancy and improvement by the corpora- tion is a sufficient acceptance of the dedication of the street by the village council, if before that time the owner, on his part, had done all that was necessary to its dedication, as before mentioned. ' '^ iFrom Railway Co. v. Village of Carthage, 36 0. S. 631. Intention to dedicate express or implied, and acceptance by municipality are essential. Millikin v. Bowling Green, 3 Oh. Dec. 204 (C.C). Sec. 2049. Interest of abutting owner in street — Ingress and Egress. If the lands of the plaintiff, mentioned and described, abut upon • street, he has, in addition to the general interest which the public has in the street, an incidental title to certain facilities, easements, and franchises, one of which is the right of ingress and egress to his lot, which is as much property as the lot itself, and if you find that his lands abut upon street, and that this right or easement has been substantially impaired by the defendant in the location and operation of its railroad along the street, if you find it has so done, and that by the location of the railroad track by the defendant in the street in front of his premises, that he has sustained special damage by having the ingress and egress to his lot substantially impaired, you may and should take this into consideration in determining the amount to which he would be entitled.^ MUNICIPAL CORPORATIONS STREETS SIDEWALKS. 1853 1 From Railroad Co. v. Stubbings, supreme court, unreported, No. 2467. The interest of an abutting owner is a property right in the nature of an incorporeal hereditament, protected as property by the constitution. Crawford v. Delaware, 7 0. S. 459; Street Ry. f. Cunmiinsville, 14 0. S. 523. An abutter's right of access is property. IMcNulta v. Ralston, 5 0. C. C. 330. "An abutting property owner on a public street of a municipality has a right and interest in the street, in the nature of an easement, ap- purtenant to his lot, and as much his private property as the abutting lot itself." Pratt, J., in Toledo Bending Co. v. Mfg., etc., Co., 3 Oh. Dec. 430. Sec. 2050. Establishment of street by general use, or prescrip- tion. In determining the lines and location of street, ad- joining the property of plaintiff, it is not necessary that legal proceedings should be shown to have been had to establish this street, but if you find from the testimony that the same had been in general use as a street in the city of for a public road for a period of twenty-one years prior to the time the same was occupied and used by the defendant, as claimed in the peti- tion, if you find it was so used and occupied by the defendant, this would constitute in law an establishing of the same as a public street, and would entitle the plaintiff to all the rights and the same rights therein as though the same had been regu- larly laid out and established by the proper authorities. And in determining the location of street, you should con- sider only the evidence relating to the use tliereof by the public, vso far and to such an extent that it is proven that the same was actually and necessarily used and traveled by the public, and the fact that the public travel was diverted to the water of the canal for the mere purpose and convenience as a watering place for stock would not necessarily establish the laying out of the street upon that portion of the traveled track that was so used and only so used.^ 1 From Railroad Co. v. Stubbings, supreme court, unreported, No. 2467. 1854 INSTRUCTIONS TO JURY. Sec. 2051. Streets may be improved to meet public needs — Within reasonable discretion of municipality. Streets are essentially permanent physical conditions of city existence, and, when appropriated to the public as part of a street system, imply that as fast as the needs of the public require they will be improved in a manner adequate to reason- ably meet the public requirements ; but it would be unwise and frequently very oppressive to make such improvements faster than the ability of the abutting owners would make practical, and this is especially true as the more expensive permanent street improvements are paid for largely by local assessments. The fact that the municipality reasonably delays making or authorizing the expensive improvements is not to be treated as a w^aiver on its part of its right or intention to properly improve the street when it becomes, in its discretion, reasonably proper so to do, and as the needs of the public require; and what is reasonable is wholly within the discretion of the municipal au- thorities, so long as such discretion is reasonably exercised under the circumstances of the given case and within the provisions of the statute.^ iVoris, J., in Sanford r. The City of Akron, Summit Co. Com. Pleas. Affirmed by circuit court, April term, 1896. A citizen can not con- trol the method of improvement. Parsons v. Columbus, 50 O. S. 460. Sec. 2052. Must keep sidewalks and cross-walks open and reasonably safe — Municipality not an insurer. The law requires that the city of , being a municipal corporation, shall have the care, supervision and control of the streets, and shall cause them to be kept open and in repair, and free from nuisance. This obligation includes, of course, as a part of the streets, the sidewalks arfd crosswalks, and, therefore, imposes upon the city the duty of keeping the sidewalks and crosswalks open and in repair, and in a reasonably safe and suitable condition for pedestrians passing along the same. This requires a reasonable vigilance in view of all the surroundings. MUNICIPAL CORPORATIONS — STREETS — SIDEWALKS. 1855 and does not exact or require that which is impracticable. Wlien the municipal authorities have done that which is reasonable in this regard, they have discharged the entire obligation im- posed by the law. It is to be said also that the city is not bound at all hazards to have knowledge of defects in sidewalks. The city is not an insurer of the safety of its public ways and side- walks, or of the lives and limbs of persons passing over and along them. It is the duty of the city to exercise ordinary care and prudence in the taking care of its streets, and tliis includes sidewalks; and by ordinary care I mean that degree of care which persons, which individuals of ordinary prudence, are accustomed to use and employ under the same or similar cir- cumstances, in order to conduct the enterprise in which they are engaged to a safe and successful termination, having due regard for the rights of others, and for the objects to be accomplished. In general terms, then, such is the duty of the city in the care, supervision, control and maintenance of streets.^ 1 Carlos M. Stone, J., in City of Cleveland v. Storer, S. C. 4422. See Cooley on Torts, 746 (625). A street includes sidewalks. Dillon's Municipal Corporations, sec. 780, n. Tlie city is bound to see that the sidewalk conforms to the grade of the street. Toledo v. Higgins, 5 Oh. Dec. 485. "A municipal corporation is charged with the duty of keeping its streets free from nuisance and in a reasonably safe condition for travel in the usual mode, but it is not an insurer of the safety of persons using them, and Avhen they are in that condition it is not charge- able with negligence, although an accident happens in the use of the streets." City of Dayton v. Glaser. 76 0. S. 471. The fact that a portion of a plank sidewalk had been in bad condition, due to the sliding of an adjacent hillside of which the municipality had notice, does not as matter of law amount to notice of the defect causing the injury. Scrogin v. City, 10 C. C. (N.S.) 293. AflBrmed, 87 O. S. 495. Sec. 2053. Pedestrians to use ordinary care in passing- along streets — May assume city discharged its duty. On the other hand, it was the duty of the plaintiff as a pedes- trian upon the street to exercise ordinary care in passing along the street and over this crossing — over the crosswalk — and the 1856 INSTRUCTIONS TO JURY. same rule as to ordinary care in this instance means precisely what it means in the other. He is to exercise that degree of care that men of ordinary prudence are accustomed to use and employ. It was then his right to go along the street in reliance that the city had properly discharged its duty ; he had a right to pass along the street in the belief that the city had performed its duty, and that its sidewalk was in a reasonable and suitable condition for him to pass over. That reasonable diligence on the part of the passerby along the sidewalk doesn't require that he shall be on the alert every moment searching for a defect here or there. It doesn't mean that at all; nor does it mean that he may shut his eyes and take his chances on any possible condition of things. It is not that. It is relying upon the city's keeping its streets in a reasonably fair condition. He may walk along relying upon that condition of things, that sup- posed condition of things; he may proceed upon the theory that the sidewalk is in a reasonably safe condition, using that care and that discretion that prudent men are accustomed to use in passing along a highway.^ 1 Carlos M. Stone, in City of Cleveland v. Storer, S. C. 4422. Police power of city as to cross streets and crossings. Dillon's Municipal Corporations, iicc. 393. Sec. 2054. Defective street becomes a nuisance, when. Now, the word "nuisance" in this provision of our statute may be defined in these words : A nuisance is something done or omitted to be done which has the effect of prejudicially and unwarrantably affecting the rights of another person, and works a damage or injury to such other person. If this sidewalk had become out of repair, was defective in the particulars claimed, if it had become dangerous, unsafe to cross over, maintained there by the city with knowledge of its defects and dangerous character, then that was the maintaining of a nuisance within the meaning of the law, and if a person was injured without MUNICIPAL CORPORATIONS — STREETS — SIDEWALKS. 1857 fault on his part, under such circumstances, he would have a right of action predicated upon the nuisance so maintained/ 1 Carlos M. Stone, J., in City of Cleveland v. Storer, S. C. 4422. See different form, No. 567, pust. What are nuisances and power and duty of city to abate. Dillon's Municipal Corporations, sec. 374 and n. Sec. 2055. When city liable for defects in streets — Construc- tive notice. If you find the city had actual notice of this defect, or if such defect had existed for such a period of time as that the city, in the exercise of reasonable care, ought to have known it, the rule to be applied is as follows : If there occurs a defect in a street upon such short notice or under such circumstances as that the city had no knowledge of it, and in the exercise of ordinary care could not know it — could not be expected to know it — then no liability arises against the city for that reason. So, it is requisite as one of the things to be established, either that the city had actual notice of the defect, or that it had existed for such a length of time and under such circumstances and surroundings as, in the exercise of ordinary care, it must be held to have known it, ought to have known it, because it was bound to have known it by reason of its long existence. Notice to an officer of the city, charged with the duty of looking after these things is notice to the city. The city acts through its properly constituted officers and agents. Some have charge of one department of the city government, and some have charge of others, and so I say, notice to a duly appointed officer, whose duty it is to look after sidewalks and crosswalks, whose duty it is to see that they are kept in repair, notice to such an officer is notice to the city. And so it is notice to the municipality where the defective condition has existed for such a period of time as that, in the exercise of ordinary care, ought to have known it. That is what is known as constructive notice. It is constructive notice as distinguished from actual notice.^ 1 Carlos M. Stone, J., in City of Cleveland v. Storer, S. C. 4422. As to what is notice to city of defect, see City of Lafayette v. Allen, 81 1858 INSTRUCTIONS TO JURY. Ind. 166. If a city fails to keep its streets in safe condition for public use, it will be liable for any injury caused thereby. Dillon's Municipal Corporations, sec. 980. Sec. 2056. Sidewalk in defective condition for such length of time that city presumed to know it. You will first consider whether the sidewalk was out of repair and in such a condition as to be dangerous; then whether the city knew it. If the sidewalk was out of repair and in a dam- aged and defective condition, and had been for a sufficient length of time so that the city might be presumed to know of it, then the city had notice. It is not necessary to show positively that some one went to the official whose duty it was to look after these streets and sidewalks and told him about the dangerous condition of these sidewalks. But you must find, if you find there was a dangerous sidewalk, that it was so apparent that it might be observed by persons passing over it in that condi- tion, and that it had been so for a sufficient length of time, so that it is fair to presume that the city and its officials in the course of their duty, in its care of the streets, should have known of it and had time to repair it, before you may find that the city had notice.^ 1 Gorman, J., in City of Toledo r. Wilhelmena Clopeck, supreme court, unreported. Judgment affirmed. Sec. 2057. Not liable for mere slipperiness from snow or ice — Otherwise if danger from want of repair was enhanced by snow and ice. The city is not liable for the mere slipperiness of the sidewalk. If this crosswalk was in a reasonable state of repair, so that you are able to say that the city was without fault in the premises, then there was no negligence on the part of the city in main- taining this crosswalk or plate in the condition that it w^as in, and this accident nevertheless happened, if it happened because of the slippery character of the walk, resulting from this slight fall of snoAV during the night previous, or from sleet, or an icy condition of the walk, the plaintiff would not be entitled to MUNICIPAL CORPORATIONS— STREETS— SIDEWALKS. 1859 recover. But if this fall was due to the fault of the sidewalk due to the faulty condition of it, rather— if the city was negli- gent in the care of it, if it had permitted it to become out of repair, to become unsafe and dangerous, and this fall was the result of that condition, and the plaintiff, without fault, received this fall because of that condition of things, then he would be entitled to recover, we think, even though that dangerous con- dition was enhanced by the fact that snow had fallen upon it the night before. In other words, the plaintiff is not prevented from recovering in tliis action, even though the slippery con- dition of the sidewalk incidentally caused by the fall of the snow added to the condition of things there, made it more dan- gerous. He is not prevented from maintaining his action if the jury find from the testimony in this case that the fall was due to the defective condition of the sidewalk, and without which defect the accident would not have happened, and if you further find, as I have already indicated, that the city had knowledge of the defective character of the sidewalk, or that it existed for such a length of time as, in the exercise of ordinary care, ought to hpve known it, the city would be held liable.^ 1 Carlos M. Stone, J., in City of Cleveland v. Storer, S. C. 4422. As to liability for mere slipperiness, see Cliase r. Cleveland, 44 O. S. 505; Dillon on Municipal Corporation, sec. 1006. The court, in tlie 44th 0. S. 514, upon this subject of ice and snow, says: "In all northern cities and towns storms of snow and sleet, producing ice and resulting in slippery walks, are of frequent and constant recurrence during the winter season, and accidents of the character complained of are also frequent. Such dangers are apt to exist in many places at the same time, and at points widely separated from one another. They appear at many points today, dis- appear tomorrow, and like dangers appear at other places tlie next day. They are affected by clianges of weather, which are likely to occur at any time, and frequently many times within a few hours. * * * To effectually provide against dangers from this source would require a large special force involving enormous expense." A city is not liable to one who slipped upon an icy sidewalk. Bretsh v. Toledo. 1 N. P. 210. 1860 INSTRUCTIONS TO JURY. Sec. 2058. Though city not liable for mere slipperiness from ice or snow, otherwise if snow or ice allowed to accumulate so as to become serious and noticeable obstruction — Length of time al- lowed. Now, it is also a well-settled rule that the city is not liable for any injury which is caused by the mere slipperiness of its streets, caused by ice or snow upon the surface of the street. This is a situation of things which is necessarily incident to winter weather, and is liable to occur during winter at any time and upon any street; and that is a condition of things that the public and persons traveling upon the street know and are bound to know, and to take into consideration ; and it would be an unreasonable burden to impose upon the city to see that its streets at all times during the winter, in all places, w'ere free from mere slipperiness. But if ice or snow is allowed to accumulate upon the street to such an extent as to become a serious and noticeable obstruction to ordinary travel upon the street, and the city, by its officers or agents, acquired notice or knowledge of such obstruction, and if, after such knowledge or notice, it is practicable, considering the means at its command, considering the time during which this alleged obstruction ex- isted, and considering everything, if it is practicable for the city to remove these obstructions after such knowledge or notice, then it w'ould be liable for an injury caused by such obstruction ; and of course, in determining whether it is practicable or not, the jury will have to take into consideration the extent of such obstruction, and of similar obstructions throughout the city, and the means at the command of the city, and all the circum- stances in evidence. It will be the duty of the jury to examine the evidence in tliis case carefully, and determine just what the facts are. You will inquire whether there was a ridge of snow or ice upon the side of this street railroad track, and whether the plaintiff's horse slipped on that ridge of ice or snow — whether that was the cause of the horse's falling; and whether that ridge of MUNICIPAL CORPORATIONS — STREETS — SIDEWALKS. 1861 snow or ice, if it existed, was of such a character and of sucli an extent as to be an obstruction to ordinary travel upon the street. Was it a noticeable obstruction ? Did it niateriall}^ in- terfere with the ordinary travel upon the street? You Avill ascertain, if you find that such an obstruction existed as I have described, whether the city knew of it, or whether, by the exercise of ordinary care and vigilance, ought to have known of it. You may consider the length of time the obstruction had existed, if at all, in substantially the same condition it was in at the time of the accident. Of course, if tliis ridge, assuming that you find that such a ridge was there, if it was substantially caused by a recent fall of snow or a recent change in the state of the weather- so recent that it could not reasonably be expected that the city would have the opportunity or the means or the ability to remove this as well as all similar obstructions throughout its corporate limits— then the city is not liable. You nnist look at all these matters as reasonable men, in the light of all the circumstances, applying to them your ])est judgment and your experience.^ 1 Isaac P. Pugsley, J., in City of Toledo r. Wellener, supreme court, No. 2652. Judgments affirmed. It is the duty of a city to use reasonable diligence in keeping its streets and walks free of snow and ice. Dillon's Municipal Corporations, sec. 1006. Failure of the city to look after removal of snow and ice on its streets and sidewalks may be regarded as a wrongful act. McKellar v. Detroit 57 Mich. 158. Sec. 2059. Liability of municipality for injury resulting to traveler upon stone in street — Duty of trav- eler. It is the duty of the defendant corporation to use reasonable care, caution, and supervision to keep its streets in a safe condi- tion for the ordinary modes of travel, at night as well as by day, and if it fails to do so it is liable for injuries sustained in conse- quence of such failure, providing the party injured was exer- cising reasonable care and caution. Therefore, it becomes a 1862 INSTRUCTIONS TO JURY. question of fact for you to determine in this case as to whether or not this defendant was negligent in the way the street was left at the time of the accident. If you find from the evidence that the plaintiff, while driving on the street, could see or was actually aware, because of the electric lights or otherwise, that the stone in question was in the street and obstructed it, never- theless he had the right to continue to proceed on his way, but it was his duty in doing so to use ordinary care to avoid such obstructions or danger liable to be caused thereby, and if, while so doing, in the exercise of ordinary care, he drove against such obstruction and Avas thrown from his buggy and injured, the defendant would not be relieved from responsibility for such injury by reason of such attempts or acts of the plaintiff in and about attempting to proceed in his way, but in doing so he must have exercised ordinary care; failing in this, he can not recover, even should you find that the defendant was guilty of negligence. * * * A municipal corporation is not liable for every accident that may occur from obstructions or defects in its streets. Its officers are not required to do everytliing that human energy and ingenuity can possibly do to prevent the happening of acci- dents or injury to citizens. If it exercise ordinary and rea- sonable care in that regard, they have discharged their duty to the public.^ 1 Gillmer. J., in Rosspr v. Village of Girard, Trumbull County. Sec. 2060, City to keep sidewalks in reasonably safe condi- tion for travel. The court says to you as a matter of law that it was the duty of the defendant, by its proper officers and agents, to see that the sidewalks in the corporate limits of the city were in a reasonably safe condition for persons to travel over in the day- time or in the night season. A municipal corporation, however is not liable for every ac- cident that may occur from defects in its sidewalks or streets. Its officers are not required to do everything that human energy MUNICIPAL CORPORATIONS — STREETS — SIDEWALKS. 1863 and ingenuity can possibly do to prevent the happening of acci- dents or injuries to a citizen. If it has exercised reasonable care in that regard, and if its streets are in a reasonably safe condi- tion, it has then discharged its duty to the public.^ 1 Gillmer, J., in Wallace r. City of Warren, Trumbull Co. Com. Pleas. City will be liable for defect in street or sidewalk causing injury. Dillon's Municipal Corporations, sec. 1007. But the defect must be the pioximate cause, Id. A municipality is not an insurer against accidents upon streets, but is held to reasonable care in keeping them free from nuisance. It is not bound to anticipate improbable or unprecedented events. Village v. Kallagher, 52 O. S. 183, 187, and cases cited. Sec. 2061. Injured party to show actual or constructive notice to city. The burden is upon the plaintiff to show by a preponderance of the evidence that the defendant had actual or constructive notice of the defect claimed in the street, before recovery can be had. Actual or constructive notice of the defect complained of must be given a sufficient length of time in order to enable it to repair the defect, if any existed. Constructive notice would be where the defect had existed for such a length of time prior to the alleged injury that the city, in the exercise of ordinary care and diligence, would or should have known of the defect. If it should appear that the city did not know of the particular defect in the walk that caused the injury to plaintiff, but that the sidewalk gen- erally, as is alleged and claimed, was defective, then you are instructed that in order to charge the municipality with notice of the particular defect from its knoAvledge of the existence of a general one, the first should be of the same character as the latter, or at least so related to it that the particular de- fect is a usual and concomitant of the general one. To con- stitute knowledge of the general defect notice of the partic- ular one, they must at least be of the same general character, or the latter a usual concomitant of the former, and substan- tially at the point or place where the accident occurred. 1864 INSTRUCTIONS TO JURY. In this case the court says to you that if you find that the city knew that the particular places across the sidewalk at the point in question were generally loose, or if you find that it knew that the stringers had become rotten so that the nails would easily draw from them, and then you further find that the plaintiff was injured on account of her putting her foot through a hole in the sidewalk, on account of one of these boards that had become loose, on account of the general char- acter of the sidewalk, by reason of the stringers becoming rotten so that they would not hold the nails, then you are instructed that if the injury was caused in this manner, that the city might be chargeable with notice of the defects, although, in fact, it did not know that the particular hole through which the plaintiff put her foot existed at the time. If however, the general defect known to the city, if one was known, was not of the character to make the sidewalk unsafe, or was of a character totally unlike the one which caused the injury, so that the existence of one would be no presumption of the existence of another, then this would be no such notice as would bind the defendant. * * * The defendant iiuist have notice before there can be a re- covery on the particular defects in the sidewalk which caused the injury to plaintiff.^ 1 Gillmer, J., in Wallace v. City of Warren, Trumbull Co. Com. Pleas. The city is liable after notice if it refuses to act, 53 O. S. 605. Sec. 2062. Streets and sidewalks to be kept in reasonable repair and free from nuisance — Must show- actual or constructive notice. It is the duty of the city to keep public streets and sidewalks in reasonable repair so that they shall not be dangerous to people passing thereon. They should be free from nuisance, and anything dangerous to the public and that interferes vnth the public convenience and safety is a nuisance.^ And if a street or sidewalk is in such condition as to be dangerous to people passing over it, then it is a nuisance and it is one of MUNICIPAL CORPORATIONS— STREETS SIDEWALKS. 1865 those things that it is the duty of the city to remedy Avithin a reasonable time after it is known. Before you can find for the plaintiff you must find that the city knew of this defective con- dition of the walk, or should have known of its being in that condition and apparent, so that it could be observed by people looking at it or people passing over it, for a sufficient length of time so the city should have known of it and had time to repair it before this time when the plaintiff claims slie was in- jured. If you find these facts proof that there was that danger- ous condition of the walk there, and it was a walk laid do^vn by the city, in a dangerous condition, and had been in that condition a sufficient length of time so the city knew it, or should have known of it, or had it repaired; if you find the plaintiff was passing along there, and, without any fault of hers, was thrown and injured, before she is entitled to recover her damages from the city for that injury; if you do not find or did not find all those things, then your verdict will be for the defendant and that the plaintiff has no cause of action.^ 1 Municipal corporations are invested with the power and charged with the duty of keeping the streets under their control free from nuisance. Zanesville v. Fannan, 53 0. S. 605; Cardington v. Fred- ericks, 46 0. S. 442-47. - Gorman, J., in City of Toledo v. Clopeck, supreme court, unreported. Judgments affirmed. Sec, 2063. Latent defect — Actual notice to be shown. "A latent defect in a sidewalk is one that does not appear to the eye, or would not appear to be known by a person walking over it. The law does not presume notice to a muni- cipal corporation of a latent defect. "Before a municipal corporation can be held in damages for injuries caused by a latent defect, the jury must find that the municipal corporation had actual notice of such latent de- feet. "The jury must look only to the testimony as to the con- dition of the walk at the point at which the accident is alleged 1866 INSTRUCTIONS TO JURY. to have occurred, and must disregard all general statements as to other walks. "^ 1 Gorman, J., given by request in City of Toledo v. Clopeck, supreme court, unreported. Judgment affirmed January 22, 189.5, No. 3207. Sec. 2064. Sewer sysem — Reasonable care required in con- struction, maintenance and supervision — Pro- viding safeguards to prevent backwater from sewer. It is the duty of the city to exercise reasonable care and skill and caution in the construction, maintenance, and manage- ment of its sewer system, and if in these respects it is negligent, the city is liable for the acts of such negligence to the person so injured. Yet the city is not liable for extraordinary care or prudence, nor to provide against extraordinary contingen- cies; what would constitute extraordinary contingencies is a matter of fact to be determined by the jury from the evidence submitted to them. Its liability is no greater than that imposed upon private persons in like circumstances. The city is not to be held by the more stringent rule in that respect than the plaintiffs are for the safety of their own property. In determin- ing whether the plaintiffs were guilty of negligence or not in providing safeguards to prevent backwater from the sewer, and in properly guarding their goods from injury, no higher or more stringent rule is required of them than that of ordi- nary care and skill and prudence, such as persons of ordinary care and prudence are accustomed to use and employ under the same or similar circumstances, in order to conduct an enterprise in w'hich they are engaged to a safe and successful termina- tion. Whether the failure of the plaintiffs to put in a backwater valve, if you find such to be the fact, was or was not negli- gence on their part is to be determined by you, under the rules given you in this charge, from all facts and circumstances proven in the case. MUNICIPAL CORPORATIONS STREETS SIDEWALKS. 1867 The law presumes a part.y to know what, l)y the exercise of reasonable care and prudence, he ought to know under all the circumstances in the case, and this is a case in which this presumption is peculiarly applicable.^ iVoris, J., in Miller v. Akron, Summit Co. Com. Pleas. As to liability of city for overflow of sewage on private lands, see Dillon's Munic- ipal Corporations, sec. 1046. Sec. 2065. Injury from change of grade— Purpose of a view of premises. You have viewed the premises in question in this ease, but you are not to treat what you observe there as evidence; you are not to adopt your own theory or opinion as to the fact of reasonableness or unreasonableness of the extent of the improvements, or whether it was made on or above the ordi- nary grade, nor as to the value or extent of the injury done. These facts must be determined by the evidence. You were permitted to go and view the premises only for the purpose of enabling you the better to apply the evidence submitted to you.^ 1 Voris, J., in Smith r. The City of Akron. Sec. 2066. Change of grade vdthin authority, and without negligence. As a general rule, a municipal corporation is not liabl(> for damages to property abutting upon a street, resulting from the improvement of such street, providing such improvement is made within the scope of the corporation's authority, and without negligence or malice, that is. if reasoiin])ly made. The people of Ohio have always been jealous of any encroachment on the rights of an individual. Private property is licld in- violate by constitutional provision, but subordinate to the public welfare, and when taken for the pu])lic use, a compensation therefor must be made in money. Construed in the light of 1868 DSrSTEUCTIONS TO JURY. these instructions to you, this constitutional provision is opera- tive, and should be upheld in cases like the one on trial.^ 1 Voris, J., in Smith v. The City of Akron. Sec. 2067. Change of grade — Improvements made with ref- erence to established grade — Liability for in- jury from change of grade. If, however, it be shown that the city before the construction or making of the plaintiff's improvements, by ordinance duly enacted, established the grade of said street, and had so im- proved or appropriated the street as to indicate fairly and rea- sonably that no future change would be required by the city, and the plaintiff, relying upon such corporate acts as a final decision as to the wants of the public, improved her lot in a manner suitable to the established grade, and afterwards her improvements were injured by a change of the grade by the city, the rule just announced ^ could not apply.- If the plaintiff so made substantial improvements upon her lot with the view of such established grade and level of the street, and the city thereafter altered the grade, and dug down the street so as to materially impair the value of such im- provements, the city would be liable to her for damages so far as the premises were materially injured thereby, if the evidence brings her within the provisions and limitations of the instructions given you. 1 Ante, 2066. - City V. Penny, 21 O. S. 499. Sec. 2068. Change of grade — Statute as to — Requirements of owner as to claims. The statute provides, however, as a protection to both the owner and the city, that before it can legally proceed to make such improvements as that made upon the street, the council shall declare by resolution the necessity of such improvement, and shall give twenty days notice of its passage to the owners of property abutting upon the improvement; * * * and all MUNICIPAL, CORPORATIONS — STREETS — SIDEWALKS. 1869 plans and profiles relating to the improvements shall be re- corded and kept on file in the office of the city engineer or clerk, and open to the inspection of all parties interested, and such owner claiming that he will sustain damage by reason of the improvement shall, within two weeks after the service of the notice, file a claim in writing with the clerk of the corporation, setting forth the amount of damage claimed, to- gether with a general description of the property with respect to which it is claimed the injury will accrue; an owner who fails to so do shall be deemed to have waived the same, and shall be barred from filing a claim or receiving damages. Sec. 2069. Change of grade — Requirements as to files and surveys — Reliance upon by abutting owner — ■ Failure to file claim — Skill required of owner — Reliance upon information furnished by engineer. The law that requires the owner to file his claim for damages is reasonable and founded in sound state policy. This is re- quired among other things to enable the city council to under- standingly determine whether it would be expedient to go on with the contemplated improvement, taking into account the amount of money required to be paid for damages, whether the property owners liable to pay the assessment for improvement ought to be burdened by so great an expense, and also to enable it to provide the ways and means therefor. Unless a short day were fixed, the city would be greatly embarrassed and delayed in needful improvements ; this would be especially true in rap- idly growing cities. But this provision of the statute can not avail the city when it has failed to serve the required notice. If the notice has not been serA'ed upon the plaintiff, he would not ))e barred fnjm prosecuting liis claim for damages, nor being considered as having waived the same. But if notice has been properly served upon tlie plaintiff, who fails to file liis claim in writing for damages within the two weeks required by 1870 INSTRUCTIONS TO JURY. the statute, the complainant would be barred of the right to recover, unless you find from a preponderance of the evidence that he is relieved therefrom by reason of certain information which was procured from the city engineer. The plaintiff acting in good faith may rely upon the profiles and surveys on file in the office of the city engineer, which were coilsulted by him, and upon which he relied in making the im- provements. But for such as were kept in the office of which he had no notice, and upon which he did not rely, you are not to consider in any other light than as bearing upon the accuracy of the plans, profiles and surs'eys submitted to you in evidence. But they do not lay the foundation for recovery against the city unless you are satisfied from the evidence that the same were adopted by the city council, and this must appear from the records of the proceedings of the council. If the plaintiff claims to have been misinformed as to the extent of the cut in front of his premises through the officials of the defendant, and it appears that plaintiff went to the office of the city engineer to examine the plans and profiles of the improvement and learned therefrom of the cut to be made in front of his lot, and being unable to obtain the desired informa- tion therefrom ; or if the plans and profiles were of such a nature as to require one skilled in such work to understand them, and the plaintiff thereupon requested the engineer to give the desired information, so as to enable him to prepare or determine whether he would prepare or not any claim for damages ; and the plain- tiff was then informed that the cut in front of his premises would not be more than inches at the east line, and not more than about feet deep at the west line of his lot, etc., such statement of the city engineer is competent evidence for you to consider in determining whether plaintiff should be deemed to have waived his claim for damages by not filing it within the two wrecks pro^nded by statute, and it would be competent if the plaintiff, acting in good faith and knowing nothing to the contrary, relied upon the statement so made by the city engineer, and so relying thereon, did not, and because MUNICIPAL CORPORATIONS STREETS SIDEWALKS. 1871 thereof, file his claim for damages, such failure to file the claim within two weeks required by statute would not thereby neces- sarily be deemed to have waived the same, nor by reason thereof necessarily be barred from maintaining this action. Sickness in the family would not excuse the plaintiff from making the inquiry within the two weeks, nor from filing his claim within that time.^ 1 This instruction is somewhat changed and modified in language from one given by Judge Voris in Smith v. City of Akron, and possibly also in another case with some changes, omitting parts of his charge, so as to make it general in its application. Sec. 2070. Change of grade — Plans and profiles— Owner may- rely upon information and explanation by engineer. It was the duty of the city to have such a plan and profile on file as would reasonably advise persons of ordinary intelligence of the extent which the proposed improvement would affect the plaintiff's property, but if it so failed to give such information, or gave it in such a manner as required one skilled in such work to understand them, and the plaintiff was not so skilled, then it was competent for the plaintiff to go to the city engineer and seek from him the necessary explanation or information, and to rely upon such explanation and information given in that behalf by the city engineer; and it was competent for the engineer to speak in behalf of the city in giving such information.^ 1 Voris, J., in Smith v. City of Akron. Sec. 2071. Change of grade — Adopting county road as street. If you find from a preponderance of the evidence that the city of adopted as a street of the city the county road, and established the same as such, without change of grade, for more than thirty years,^ and the plaintiff erected his dwelling house and other structure, and made his otber improvements thereon, and the plaintiff used reasonable care and iliscrction and judgment in making bis improvements, with a view to the 1872 INSTRUCTIONS TO JURY. future, proper, and reasonable change of grade, and the city caused a change of grade in such street to be made subsequently, Avhich resulted in damage to such improvements, and the change of grade which caused such injuries could not, by ordinary care and discretion, have been anticipated, then the city would be liable for such injuries, if you find in other respects that the plaintiff is entitled to recover.^ 1 Thirty years is not a necessary period of time, but it should be so long as to create a reasonable presumption of tlie fixed grade. - Voris, J., in Rhodes v. City of Akron. Sec. 2071a. Change of grade — Improvement made before grade established is at one's own peril. If you find from a preponderance of the evidence that, at the time the plaintiff (or his predecessors in title) improved his property, any grade had been established on the street, either by ordinance, or such improvement and appropriation of the street to public use by the authorities of the city as to fairly indicate that the grade was permanently fixed, and no other change would be required by the city, then the plaintiff (or his predecessors in title) improved his property at his peril, and the plaintiff can not recover unless the present grade upon which the improvement has been made is an unreasonable one, or the street improvement was negligently done and by which the injury complained of was caused. But if the nature and extent of the improvements and use of the street had not been so indicated or defined by the de- fendant before the plaintiff (or his predecessors in title) made their improvements, then they would be presumed to have made them at their peril, with reference to such future use or change in the street as the city might reasonably adopt and make, he would not be entitled to recover, unless the city adopt an unreasonable grade and made improvements pursrant thereto, or made its said improvements in such a negligent manner as to have caused the injuries complained of.^ 1 Voris, J., in Hhodes v. City of Akron, Summit Co. Com. Pleas. MUNICIPAL CORPORATIONS — STREETS SIDEWALKS. 1873 Sec. 2072. Change of grade — Rule as to unreasonable grade. If the street improvements were made subordinate to an unreasonable grade — were unreasonable in their nature under all the circumstances — then the city could not be treated as exempt from liability to the plaintiff to tlie extent that such unreasonable grade and the improvements so made so injured his property. But in that case the damages should be limited to such only as were caused by the unreasonableness of the grade, and the street improvements made pursuant thereto, and none other, and the extent of damages, if any were caused, by what would have been a reasonable grade, he can not recover. In determining the question whether the same was reason- able or unreasonable, the date of the establishment of the grade is to be considered, and not the time the plaintiff's improve- ments were made. And the city starts out with the presump- tion that its officers have acted rightfully, and this presumption must prevail until the contrary appears from a preponderance of the evidence. The law gives the power and imposes upon the city the duty to pave, improve, and keep in reasonable repair the public streets of the city, and in the exercise of this power, and in the performance of these duties, the law presumes that it has acted rightfully until the contrary appears from the evidence. This presumption of law as to the rightfulness exer- cised by the public authorities of the city is a mere presumption and may be removed by testimony; it is only to be taken as true until evidence is received which overcomes it, and when so overcome this presumption is removed and the evidence should then control. This discretion reposed in the city council as to the exercise of its authority and duties over the public streets of the city can be exercised by no other persons. It is only for the abuse of that discretion that the courts can interfere. In passing upon the question as to whether or not the defendant made his improvements on a reasonable grade, you must gravely con- sider whether witnesses who have appeared before you, after 1874 INSTRUCTIONS TO JURY. all the evidence which you have had submitted to you, are any better able to decide this matter than the city council. If you find from a preponderance of the evidence that the city has exceeded its authority, and adopted and acted upon an unreasonable grade, you should say so ; but we feel like saying to you that it should be done after the most careful deliberation upon your part, and upon satisfactory evidence.^ 1 Voria, J., in Rhodes v. City of Akron, Summit Co. Com. Pleas. Sec. 2073. Change of grade — Whether or not premises abut upon improvements as affecting claim for damages. Whether or not plaintiff's premises did or did not abut on street, is a fact to be determined by you from the evi- dence. In determining this issue, if you find that the lots or premises have been continually owned, used, and occupied as one parcel of land, and for a dwelling-place and domicile for many years, you may consider that customary use and occupa- tion as determining the character of the land, rather than its subdivision into separate parts, and treat the same as an entire parcel of land. To entitle the plaintiff to recover it is not necessary that the whole of the front of the premises should abut on street ; but, before the plaintiff can recover for injury affecting ingress and egress to and from his premises, it must appear that the substantial part thereof abuts on street. Even tliough no part thereof abuts on street, yet if you find that the defendant wrongfully, negligently, and by reason of the un- reasonable grade, excavated up to and against said premises, so as to substantially and obviously injure plaintiff's said prem- ises and improvements thereon, he would be entitled to recover to the extent of the actual injury to the value of his property caused thereby, not, however, including any damages for de- privation of ingress and egress, as before defined, to and from said street.^ 1 Voris, J., in Rhodes v. City of Akron, Summit Co. Com. Pleas. MUNICIPAL CORPORATIONS — STREETS — SIDEWALKS. 1875 Sec. 2074. Reasonableness of grade of street — What should be considered in determining. In determining the reasonableness or unreasonableness of tlie grade and improvements of the owner, you should take into account not only the grade of the street in its relation to the locality of the plaintiff's premises, but in its relation to the street as part of the street system, and the relation that said street sustains to this system and the grades thereof. You must consider street in a much broader sense than the mere relation it sustains to the plaintiff's premises or their immediate vicinity. It must be taken with reference to the general uses and purposes to which the street is devoted by the city to the public ; nor should this be limited to the mere purpose of trav- eling thereon; it should be considered with reference to the system of drainage, sewerage, and every reasonable public exigency that may grow out of its use and purpose as one of the public streets of the city, so as to harmonize with its street system. In determining whether the grade is reasonable or not, a mere difference of opinion on your part witli the city council, whether the council exercised official discretion and authority reasonably or not, Avould not justify you in deciding against the action of the council. There must be something more than mere differ- ence of opinion. You must be able to find from the evidence that the council acted unreasonably, that is, arbitrarily, oppres- sively, taking into account the improvement as a whole, and its various relations as explained to you, or their official action must stand. ^ 1 Voris, J., in Rhodes i'. City of Akron, Summit Co. Com. Pleas. Sec. 2075. Change of grade — ^Recovery of interest on damage. "If the plaintiff sustained any injury by reason of change of grade, it occurred at the time the change was made, and in determining the measure of damages by the differences between the value of improvements before the change of grade and the 1876 INSTRUCTIONS TO JUBY. value of the improvements after the change, you are to con- sider the values at that time. If you find for the plaintiff in that regard, having assessed a reasonable and just compensa- tion therefor, you will then consider the question of interest on the amount of damages found for the plaintiff, and on that question, if you find that the plaintiff is entitled to damages, then he should be allowed interest thereon from the date of his injuries to his improvements up to the first day of this term."^ 1 From Cincinnati v. Whetstone, 47 O. S. 196. Sec. 2076. Change of grade — Retaining wall — Whether neces- sary to protect buildings. **It is for the jury to say, taking into consideration all the testimony on the subject, whether under the circumstances a retaining wall was reasonably necessary to protect plaintiff's buildings and improvements, and if a wall was necessary, then whether the wall which was constructed was such a retaining wall as was reasonably necessary. And if you find that the wall was reasonably necessary, and the wall constructed was a reasonable one for the purpose, then the plaintiff should recover the fair and reasonable cost of such wall. And if on this ques- tion as to a retaining wall you find for the plaintiff, then he will be entitled to recover interest on the fair and reasonable cost of the retaining wall from the time of its completion up to the first day of the present term."^ 1 From Cincinnati v. Whetstone, 47 O. S. 196. Sec. 2077. Streets— Change of grade— Damages— A different form. Example: Plaintiff owns a lot with a house thereon upon property, the ownership of which has continued for fifteen years. Claim is made that, before the erection of improvements upon the lot, which was vacant at the time of purchase, the city had established the grade for the street in front of the property; that the improvements were made upon the lot in MUNICIPAL CORPORATIONS — STREETS — SIDEWALKS. 1877 rouformity with the grade thus established, and that thereafter the city changed the grade of the street, thereby injuring the property. The following instructions may fit the case : ' ' There are several propositions which the plaintiff must prove by a preponderance of the evidence to entitle him to a verdict. You will bear in mind that the city o\vns all the streets therein, and has a right to exercise the same measure of control over the streets that an individual has over his own property.^ The streets are for public use, the use of the citizens of the com- munity. The city has the right to change the grade of the streets and to make such improvements as the public authorities in charge of the streets think in their judgment ought to be made. It is only under certain circumstances that a person who owns property abutting on a street can claim damages from the city for injury to that property. Before a recovery can be had you must be satisfied that the city, before these improvement's were made upon the lot, established a grade upon the street in front of this property."" 1 A city has a propriciary interest in the street. Cincinnati v. Hamilton County, 1 Disn. 4; In re Hotel Alley, 25 W. L. B. 89. It is not private property of the corporation. State, ex rel., v. Gas Co., 18 0. S. 262. 2 Pugh, J., in Braley v. City of Columbus, Franklin Co. Com. Pleas. City liable where it alters the level of a street after a proprietor has built with an express view to the grade established by the city, 4 O. 500, 4 O. 514, 15 O. 474, 18 O. 229. Lot owners may rely on an established grade, 14 0. S. 523. Grading vacant lot to conform to a grade 1 j an improvement, 5 0. C. C. 225. Improvements made in accordance with an established grade which is afterwards altered entitles owner to compensation. 7 0. S. 459. One who builds in anticipation of an established grade may recover for an unreason- able grade, 34 O. S. 328. Sec. 2078. Change of grade after improvement — How proved. Whether or not the municipality luis clumged a grade after the improvements have been made upon the lot may be proved in several ways. It may be done by sliowiujr that the city council passed an ordinance by the terms of wliich the grade of streets was fixed or established. Where an ordinance is 1878 INSTRUCTIONS TO JURY. introduced in evidence to show that a grade has been made, it is necessary that the plaintiff show proof that the ordinance applies to that part of the street upon which the property of the plaintiff is located. It is also necessary that the plaintiff show proof that the authorities of the city having charge of the street at the time, pursuant to the ordinance, went upon the street and graded it as the ordinance requires, or that the public authorities advertised for contracts, and that contracts were awarded to persons who afterwards went upon the street and graded it in conformity with the ordinance. But the plaintiff is not limited to prove an establishment of a grade by legislative action of the city council, or by the passage of an ordinance or resolution of the council. He may have the right to offer testimony to prove that the public authorities having charge of the streets used the street in such a way as to make it appear that a grade had been permanently established or a level had there been permanently adopted on the street, whether in accord with an ordained established line or not. To show that a grade has been fixed by the city in this manner it is incumbent upon the plaintiff to show that the improvement made upon the street by grading or working it was done under the direction and sanction of the proper public authorities of the city.^ 1 From Braley v. City of Columbus, Franklin Co. Com. Pleas. D. F. Pugh, J. Sec. 2079. Whether improvement made in conformity to es- tablished grade. Before recovery can be had by the plaintiff he must show by a preponderance of the evidence whether or not the improve- ment was made upon the lot in conformity to the established grade. It must be shown in substance that the plaintiff was led by the action of the city authorities in thus fixing the grade of the street to take that surface or that level as existing and MUNICIPAL CORPORATIONS — STREETS — SIDEWALKS. 1879 as established, and so, without expecting any change to be made thereafter, he erected his improvements accordingly/ 1 From Braley v. City of Columbus, common pleas. D. F. Pugh, J. Sec. 2080. Change of grade — Damages recoverable — Injury to building — Shrubbery — Access to premises — Value before and after change. There may be two classes of damages recovered in such a case, the first being a damage to the property caused by the change of the grade injuring some of the improvements on the lot. (a.) Injury to fences — Shrubbery — Building. If the change of grade destroy the fences or injure the house in any manner, that would be an injury for which the city would be liable in damages, unless the city repaired the dam- ages afterwards. The questions that you may consider are whether or not the change injured the fence, or property, or any shrubbery, or whether it became necessary to perform work upon the house to restore it to a condition as good as it was before the change of grade. (&) Injury to access. The other class of damages consists in the change of grade affecting the use of the property to the extent that the use of the property may have been affected by impairing the access between the street and the lot and the improvements thereon, either over or to the property, the plaintiff, if he has a right to recover, is entitled to damages which he may sustain by reason of such injury to the access to the property. If the street was filled up so that the improvements upon the property were left below the street, that would make it naturally less accessible from the street, and make the street less accessible from the improvements. If that has been proved, then that is the ground upon which you may assess damages. (c) Value before and after change. You may inquire also into the value of the property licfore and after the change of grade, and also as to the cost or expense in making a change in the property so that it may correspond 1880 INSTRUCTIONS TO JURY. with the change of grade. This is for the purpose of enabling you to ascertain what the depreciation in the value of the property was, which may be the measure of the damage. If there has been no depreciation in value there can not be any recovery of damages. If there was a depreciation, then the plaintiff is entitled to whatever that depreciation amounts to as expressed in dollars and cents. If the injury that may have been caused to the access to the property has been repaired or remedied by the city, and the value of the property has not thereby been diminished, there can be no recovery at all. If, after changes which a prudent man would make to restore the premises to as good condition with respect to the new grade as they were in with reference to the old, they are of the same value as before the change of grade, the reasonable cost of such restoration would be what the owner is entitled to recover. If, under like circumstances they are less valuable when restored than before the change of grade, the amount of this diminution in value should be added to the cost of restoration as the amount of the recovery. If, under like circumstances they are more valuable when restored than they were before the change of grade, there should be a recovery for the difference between the cost of restoration and this increase of value, if the increase of value is less than the cost of restoration ; but if the increase in the value of the property is more than the cost of restoration, then the plaintiff would not be entitled to recover anything.^ iFrom Braley v. City of Columbus, Franklin Co. Com. Pleas. Pugh, J. Damages can not exceed value of lot, 5 O. C. C. 225. Only injury to premises and not to particular use is recoverable, 12 W. L. B. 247 130 IT. S. 426. See full discussion of allowance of benefits in a note, ante, p. 89. Sec. 2081. Damages— Market value— Opinion evidence. Inasmuch as you may take into consideration the general value of the property in the market before and after the change of grade, and for the reason that it is the chief measurement of damages, the evidence of course may take a wide range. Wit- MUNICIPAL CORPORATIONS — STREETS — SIDEWALKS. 1881 nesses may be put upon the stand by both sides, who will give their opinions as to the value of the property. You are in- stTucted, however, that these opinions are not binding upon you. You are not bound to follow them slavishly. These opinions are competent testimony, and it is your duty to con- sider them in determining Mhat damages there are, if you find there have been any damages to the plaintiff; but you are not bound to adopt the opinions of the witnesses merely because they have given them. You will take all the evidence into con- sideration and determine for yourselves, according to your own judgment, what depreciation in value, if any, there was.^ 1 From Braley v. City of Columbus, Franklin Co. Com. Pleas. Pugh, J. Ihe measure of damages is the difference in the market value before and after the change, 119 Mass. 372, 108 Mass. 372, 108 Mass. 60, 52 la. 303, 50 Wis. 78. Sec. 2082, Damages — Enhancement of value. In estimating the damages which the plaintiff may have sus- tained, you can not deduct from any injury which the property may have sustained the general benefit that the plaintiff re- ceived in common with the general public on account of the improvement in the street. If the improvement of the street, the passage to and from the city for the whole public, not only the plaintiff but of all the general public, was rendered more convenient that it w^as before, then you can not deduct tlin' benefit from the damages that may have been sustained by the plaintiff. The reason of that is that it is a public benefit and the public must pay for it, and the plaintiff as one of the owners of property abutting on this street must assist in paying for it. The plaintiff pays for that kind of a benefit and, therefore, you have no right to deduct the value of that benefit from any injury which the property may have sustained by the raising of the grade in front thereof.' 1 From Braley v. City of Columbus, Franklin Co. Com. Pleas. Pugh, J. In a suit to fix damages to result from a street improvement, it is an error to admit evidence of enhancement of value on account of improvement, if no claim is made that such increase results from 1882 INSTRUCTIONS TO JURY. a special benefit, different from a general benefit. Martin j;. Bond Hill, 7 C. C. 271. See extensive note upon the allowance of benefits, ante, p. 89. Sec. 2083. Change of grade — ^Damages — Benefits. Now when the city establishes a grade and abutting owners establish improvements on their property in accordance with such grade, and the city subsequently adopts a different grade, it does so under the responsibility of paying the abutting owners whatever damages accrue to the improvements by reason of such change of grade. Such damages may be either on account of the destruction of the improvements, or by destruction of part and injury to the remaining part. But such damages are allow- able only with respect to improvements made in conformity to the esta])lished grade, and are limited to the injury to such improvements. Hence, in considering damages which may have been made after the change in grade in 19 — and 19 — , if any, so you must exclude from your consideration any effect which the change of grade miglit have had on the value of the plaintiff's real estate or land. It is simply damages to the improvements to wliicli your inquirv^ is limited in that regard. As to the amount of such damages, it is simply determined by your ascer- taining the decrease in value, how much less valuable were these improvements by reason of raising the grade of the street. In other words, the damages are to be measured by the difference between the value of the buildings and structures immediately before the change of grade in 19 — and 19 — and the value immediately after the change of grade, "SAathout deduction for general benefits that might accrue from change of grade in the vicinity, or from the fact that the propertv from the change of grade may be improved for public use or passage.^ Benefits of that sort belong to the public and are not to be considered by you in estimating these damages. To the extent, therefore, that the use of these buildings and improvements are affected by impairing the access to the buildings from the street, MUNICIP^UL, CORPOBATIOXS — STREETS — SIDEWALKS. 1883 to the extent they have been injured in any other manner by reason of the change of grade, whether by injuring the walls, impairing the usefulness of the buildings, or causing dampness, so far as the change of grade blocks, impairs, or interferes with the access to the property and the damage to the structures, it is for your consideration. So you have also the right to con- sider whether or not the buildings can be repaired, or whether they may be rebuilt or reconstructed or abandoned. These are all matters to be considered by you in considering how much less valuable the premises are by reason of the changes made. It is not necessary that you should know what the owners may do in regard to repairing, restoring, or abandoning the build- ings, but for the purpose of determining the extent of the dam- ages, whether that has been partial or entire. Whether a partial destruction or entire destruction, and for that purpose you may consider the probability of wiiat a prudent man would do under such circumstances; whether to repair, restore, pull down and rebuild, or abandon. Bearing in mind all the time that the thing you are to deter- mine is, how much less valuable the improvements were after the change of grade than they were before. Testimony has been introduced as to the value of the structures and improvements before the change of grade and after the change of grade, also in regard to the cost of modifying or adapting the buildings to the new grade, according to the various plans, all of which has been admitted not as fixing the amount of damage, but to aid you in arriving at the amount of decrease in value. There is no certain rule that can be laid down as to the extent of wliich improvements are affected by such a change of grade. Tt is a question which must be left to your judgment. Taking into consideration the estimates and opinions of witnesses, but being in the end your own judgments. Opinions of witnesses, in the way of estimates of damages, are testmony, l)ut only testmony. And it is your province to judge of the weight of the testimony.^' 1 Martin v. Bond Hill. 7 C. C. 271. • From Cincinnati v. Whetstone, 49 0. S. 190. See generally aw to dam- ages where Ohio cases are collected. 1884 INSTRUCTIONS TO JURY. Sec. 2084. Damages to property owner by construction of street. As the case lias been submitted to you, there is only one thing for you to do, and that is, the value of this property must be assessed at the time it was appropriated to street purposes, and the damage, if any there was, to the remainder by reason of the taking of the part which was taken. The question to be passed upon divides itself into two parts. First, the value of the property which was taken, and, second, the question as to whether the remainder of it was damaged, and, if it was, how much. As to the first question, the plaintiffs are entitled to receive the fair cash value of the property at the time it was taken. It is not what it may have sold for for any particular purpose, or in any particular manner, but what it would have sold for, taking it for all reasonable uses it might have been put to, what was its then fair selling value. And you wall con- sider the nature of the property, its surroundings, and all the legitimate uses to which ii' could have been put, and all the testimony before you on the subject of its value, and of the value of the property in that vicinity, which has been submitted for the purpose of enabling you to arrive at what this piece of ground was worth. You are not to regard it as if you were buying it ; nor are you to regard it as if you were selling it ; but generally to look upon it, disinterestedly, and to endeavor to arrive at it's fair cash market value at the time when it was taken, as it lay then. Coming then to the other question as to the remainder of the property. The plaintiffs are entitled to something in addition, if the value of the remainder has been reduced by reason of the appropriation in some way other than the mere taking away; of course the value would be reduced by taking off a portion, but if that is all the damage done, when you have paid them for the portion that has been taken, that would be all they are entitled to. But it sometimes happens that in taking off a piece of property, the remainder is lying in such a situation as to be unavailable, or, at least, of very little use or value. So, while MUNICIPAL CORPORATIONS — STRESITS — SIDEWALKS. 1885 there may be a considerable piece of property left in some eases, yet it is lying in such shape and condition that it is of very little use, and that is what we mean when we say they are entitled to recover any damage of that sort which may have occurred to this piece of property which is left. You will consider its situation immediately after the appropriation was made by the city. To determine whether or not it was damaged by the appropriation of the piece that was taken for some purpose you may take into consideration the fact that the piece that was taken was taken for street purposes; and in determining this question of the damage to the remainder, you may take into consideration whether there were any incidental benefits to the remainder which would offset any damage that there might be in some aspects ; for instance, it might be damaged in one aspect of it, and it might be benefited in another, and in considering the question of damage to the remainder, you may take that matter of benefit into consideration, so as to determine whether upon the whole the piece that remains i" possession of the L. estate was or was not damaged. If it was not, upon the whole, then they are not entitled to anything. If it was, then they are entitled to the amount of that damage, whatever you may find it to be; but in no event can you set off any benefits that may have accrued to the property, or any of it, by reason of the construction of a new street there, as against the compensation that the plaintiffs are entitled to for the amount actually taken ; that they are to have compensation for under the constitution and laws of this state, without any deduction for any benefit that the street may have been to the remainder.^ 1 From Joseph Longworth, et al., v. City of Cincinnati, supreme court. No. 14.53. H. D. Peck, J. Sec. 2085. Excavation in street — Negligfence in making — Sig- nals or lights — Right of travel subject to tem- porary obstructions or excavations. Negligence on the part of the defendant is the failure of its servants or agents to observe such ordinary care and prudence 1886 INSTRUCTIONS TO JURY. as was reasonably necessary to be observed by them as ordinary and prudent persons engaged in the work of making the exca- vation and in maintaining such signals by lights or other guards as were reasonably necessary to warn persons lawfully, pru- dently and carefully passing along the street of the danger therefrom. In determining the question of the alleged negligence of the defendant, the jury will consider the nature and character of the excavation and its location in the street. Negligence of the plaintiff under the conditions and circum- stances shown by the evidence, is the failure on her part to observe such care and prudence as was reasonably required to be exercised by her, or such care and prudence as would be observed by an ordinarily prudent and careful person, passing along the street and around the excavation in order to avoid injury to herself. In determining whether she exercised ordinary care under the facts and circumstances shown by the evidence, the jury will consider all the evidence showing the nature of the excavation, the signals, lights, or other means of warning, the means and opportunity she had of learning and knowing the danger from such excavation. Negligence of either plaintiff or defendant is the failure of either to observe such care as ordinary prudence would have observed under the conditions and circumstances shown by the evidence. Ordinary care is that degree of care and prudence which persons of ordinary care and prudence are accustomed to observe under similar circumstances. Ordinary care as applied to the conduct of the defendant is such care as is ordinarily exercised by ordinarily prudent per- sons engaged in making similar excavations in the streets of a city, and in guarding the same, and in adopting such means of warning persons passing along the street of the dangers there- from. MUNICIPAL CORPORATIONS — STREETS — SIDEWALKS. 1887 Ordinary care as applied to plaintiff is such care as persons of ordinary care and prudence ordinarily observe in protecting themselves from the dangers arising from such excavations. The city is not an insurer of the safety of its streets, not even against injury from dangerous excavations. The right of transit in the use of the streets is subject to such incidental, temporary obstructions or excavations as are reason- ably necessary in the construction of trenches or excavations incident to public or private improvements, which are qualifi- cations of the right of transit in the streets when they are made and guarded by the exercise of ordinary care and prudence. It is the duty of a city, and it was the duty of defendant in making the excavation in question to observe such care and prudence as the circumstances reasonably required, considering its nature and the care required of ordinarily prudent persons in making such an excavation and in guarding and protecting the same from danger or injury to persons lawfully passing along the street and who are in the exercise of ordinary care and prudence under the circumstances. Duty to guard excavation. It was the duty of defendant, through its servants and agents to observe ordinary prudence and care to guard such excavation from danger and injury to travelers in the street in the exercise of ordinary care and prudence, by placing such guard rails, lights or other reasonable warnings in the night as was reasonably necessary to warn foot travelers along the street of the danger therefrom, such as was reasonably calculated to protect persons so passing along the stret't from injury. If the jury, observing and applying the rules prescribed in these instructions, finds that the defendant failed to perform its duty, and failed to guard and protect the plaintiff from injury, providing she herself o])served ordinary care, and that such failure or negligence of defendant was the i)roximate cause of the injury complained of by plaintiff, then your verdict should be for the plaintiff. 1888 INSTRUCTIONS TO JURY. Proximate cause of the injury is the efficient cause thereof- it is the negligent act of defendant which directly caused the injury. If the jury find that both plaintiff and defendant were guilty of negligence in the particulars stated in these instructions, you will determine whether the cause of the injury to plaintiff was the negligence of the defendant, or whether it was due to the want of ordinary care and prudence of plaintiff herself. If you find that the injury was the direct cause of plaintiff's own negligence your verdict should be for the defendant. If the direct cause of the injury was the negligence of the defendant, then your verdict should be for plaintiff. And if so, you should award her such damages as in your judgment will compensate her for the injury by her sustained considering the nature and extent thereof. In awarding her damages you may consider pain and suffering, if any, she suf- fered from such injury, and you will include the cost of medi- cal attention as shown by the evidence.^ 1 Franklin Co. Com. Pleaa, Kinkead, J. Sec. 2086. Obstruction of sidewalk when building. 1. City may permit reasonable part to he used. 2. Right and duty of traveler in use of sidewalk. 3. City not liable unless it had notice and knowledge. 1. City may permit reasonable part to be used. The city had the right to permit a reasonable part of the sidewalk to be used for the purpose of depositing thereon building materials used in the process of constructing the building. 2. Right and duty of traveler in use of sideivalk. The plain- tiff had the right to use the sidewalk unobstructed and free from danger, but subject, however, to such incidental temporary or partial obstructions as are necessarily occasioned in the build- ing of houses fronting upon the street. But in using the side- walk she must exercise reasonable and ordinary care to avoid obstructions if any be found thereon. In the night time she had the right to suppose in the absence of signals, if that be MUNICIPAL CORPORATIONS — STREETS — SIDEWALKS. 1889 the fact, that the sidewalk was not dangerously obstructed, or dangerous to pass over, but in passing over it she must exercise ordinary care and prudence to avoid any dangerous obstruc- tions. It does not mean, however, that she may shut her eyes and take her chances on any possible condition of things. She is required to use that care and discretion that prudent persons are accustomed to use in passing along sidewalks under the same or similar circumstances. 3. City not liable unless it had notice and hiioivledge. Whilst it was the general duty of the city to keep the sidewalks in safe condition for the use of persons passing over the same, and liable for injuries caused by its negligence, or omission to keep them reasonably safe and open, yet in such a case the basis of the action being negligence it is not liable for any injury re- sulting from such negligence unless it had notice or knowledge of the obstruction that caused the injury before it was sus- tained. Or in the absence of express or direct notice such notice or knowledge may be inferred from facts and circum- stances, if any there be, showing the dangerous condition of the sidewalk had existed for such length of time and under such circumstances and surroundings without proper lights or guards to denote dangerous obstructions as that the officers representing the city or those in the employment of the city for the purpose of keeping the streets open and free from danger in the exercise of ordinary care and diligence ought to have known of such dangerous condition and want of proper guards at the right time and had time to place same in proper condition. This is what is known as constructive notice. It is constructive notice as distinguished from actual notice. You are to be the judges of the time necessary to have con- stituted constructive notice, if that appears from the evidence in the case. I can not instruct you as to the exact length of time necessary for such constructive notice. It should be for such a length of time and under such circumstances and sur- roundings as in the exercise of ordinary care it ought to have 1890 INSTRUCTIONS TO JURY. been known, or it must be held to be known, because it was bound to have been known by reason of its long existence. You will first consider whether the sidewalk was so obstructed and in such a condition by reason of the materials alleged and without proper signals or guards as to be dangerous; then whether the city knew it. In this action if it appears from the evidence that the city had no notice, express or implied of such obstruction to the sidewalk, and the city did not cause said obstructions, then the defendant is not liable, and in such event your verdict should be for the defendant.^ iPenrod v. City of Columbus, Court of Com. Pleas, Franklin Co., Ohio. Ratbmell, J. CHAPTER CXXI. NEGLIGENCE— GENERAL RULES. SEC. SEC. 2087. General form of opening 2102. statement. 2088. Explanatory instruction to 2103. jury concerning its duty. 2104. 1. As to duty of parties un- der the circumstances. 2105. 2. Concerning claims of both parties. 3. Jury to find ultimate fact. 2106. 2089. Another form of opening. 2090. Negligence — Ordinary care 2107. — Defined. 2091. Negligence — Another defini- 2108. tion. 2109. 2092. Negligence — A concise defi- nition. 2110. 21)93. Negligence exists only where there is a duty — Essen- tial elements. 2111. 2094. Imports want of attention. 2095. Negligence active or passive. 2096. Ordinary care — Negligence —Relationship — Duty. 2112. 2097. No element of purpose or moral turpitude. 2113. 2098. Ordinary care under circum- stances of peculiar peril 2114. — Intent not an element 2115. of negligence. 2099. When negligence is wanton. 2110. 2100. General duty to everybody becomes a particular duty to single person when — Duty of owner of 2117. premises to keep them 2118. reasonably safe. 2101. Cause not negligent act 2110. alone — But injury proxi- mately resulting from 2120. breach of duty. Burden of proving negli- gence. Ordinary cai-e. Ordinary care under circum- stances of peculiar peril. No presumption of negli- gence against either party. Proximate cause defined and explained. Proximate cause — Another definition. Contributory negligence. No recovery where there ia contributory negligence. Contributory negligence must be proximate cause of injury. When plaintiff must show himself witliout fault, or to rebut inference of neg- ligence. Burden of proving contrib- utory negligence. Contributory negligence as applicable to cliildren. Consent of cliildren — Effect. Contributory negligence — In- toxication as affecting. Contributory negligence — Husband performing du- ties as such not agent of wife. Imputed negligence. Negligence of parent not im- jiuted to cliilil. Duty of employer to infant employee. The las! clear chance doc- trine. 1891 1892 INSTRUCTIONS TO JURY. SEC. SEC. 2121. Concurrent negligence. 212.5. Sudden peril — Conduct of 2122. When negligence of plaintiff person placed in. not continuing, but that 2126. Rescuing one from danger — of defendant is continu- Injury while attempting ing and proximate, to rescue — Contributory while that of plaintiff is negligence, remote. 2127. Law designs to hold the one 2123. Injury to passenger by de- whose conduct causes in- railment res ipsa loqui- jury, whether plaintiff tur. or defendant — It is the 2124. Burden of proof when in- nature of man to protect jury caused by res ipsa himself, and this is the loquitur. measure of duty in law. Sec. 2087. General form of opening statement. After statement of pleadings and facts proceed: By this statement of the claims of the parties you have been given in substance the matters on which the parties are at issue by their pleadings. These pleadings will be before you and can be examined by you; but, aside from the admissions therein, they are not evidence in the case, and must not be considered or regarded by you. These issues present for your consideration and determination three principal propositions which are as follows: 1. Was the defendant negligent in one or all of the particulars complained of ? 2. If so negligent, was this negligence the proximate cause of the injury to plaintiff of which he complains? 3. Did the negligence or want of care on the part of the plaintiff contribute to cause or produce the injury which he sustained ? Taking up these questions in the order suggested, you wall proceed to inquire and determine whether or not the defend- ant was negligent in any or all of the particulars complained of, and if you find that it was not so negligent, then you need not inquire further, but should return your verdict for the defendant; but if you find it was so negligent, then you will proceed further and inquire and determine whether or not this negligence so found by you was the proximate cause of the injury to the plaintiff of which he complains, and if you find NEGLIGENCE GENERAL. RULES. 1893 it was not such cause, you need not inquire further, but return your verdict for the defendant; but if you find it was such cause, then you will proceed to inquire and determine whether or not the plaintiff himself was negligent, and if you find he was negligent and that his negligence contributed to the cause or produced his injuries, the defendant would be entitled to your verdict; but if you find there was no contributory negli- gence on the part of the plaintiff, and have also found tlie otlier matters to which your attention has just been called in his favor, then the plaintiff would be entitled to your verdict. Sec. 2088. Explanatory instruction to jury concerning its duty. 1. As to duty of parties under the circumstances. 2. Concerning claims of hoth parties. 3. Jury to find ultimate fact. To enable you to decide the fact, the court instructs the jury as to the duty of the defendant as well as that of the plaintiff and his servant or agent under the conditions and circumstances disclosed by the evidence and according to the undisputed facts before stated. Gentlemen, tlie court being aware of the claims asserted by parties, charges the law applicable to both. One asserts one claim in evidence, and another another; the court knows that the jury may form your own conclusions on the evidence and on the facts which you will find from the evidence. The func- tion of the court is merely to charge the jury as to the law upon the conflicting claims made by the plaintiff and the defendant. The court states the rule of law that will govern the claim of plaintiff, as well as that relating to the claim of defendant .so that the jury, by the application of tlie rule of conduct and of the law, may apply it according as it may find the facts to be. There is in law a term that is designated an ultimate fact. That means a fact which will be drawn from the evidence in the case by the jury. That ultimate fact is evidenced by the verdict of the jury ; that ultimate fact is the fact to which the 1894 INSTRUCTIONS TO JURY. law attaches legal consequences. The court gives you the law, and you attach the legal consequences to the act by your verdict, because you must follow the rule of law given you by the court ; so that by your verdict, in the end, you not only find the fact, but you attach the legal consequences by the application of the rule of law given you by the court in your verdict. Sec. 2089. Another form of opening. The plaintiff holds the affirmative, upon him rests the burden of establishing the right to recover.^ There is no presumption that the railroad company was neg- ligent, or that the negligence of the railroad company occasioned the injury complained of, from the mere fact that the plaintiff received his injury while he was in the service of the company.- To entitle the plaintiff to recover it is incumbent upon him to show by a preponderance of evidence that the company was negligent in the respects complained of in the petition — or some of them — and that the injury which the plaintiff received se- sulted directly from such negligence. And there is this further general rule : Notwithstanding any negligence of the defendant, the plaintiff can not recover if he was himself guilty of con- tributory negligence, as it is called, that is, • if, by his own failure or omission to exercise ordinary and reasonable care, he contributed to his own injury. The burden of ^proving contributory negligence on the part of the plaintiff is upon the defendant,^ with this qualification: that if the testimony introduced by the plaintiff as to the cir- cumstances under which this injury was received fairly raises a presumption in your minds that he was guilty of contributory negligence, then the burden is upon him to remove that pre- sumption.* The general questions, then, which are involved in this case are : whether there was negligence on the part of the defendant, and whether there was contributory negligence on the part of the plaintiff. The burden of proving contributory negligence NEGLIGENCE — GENERAL RULES. 1895 on the part of the plaintiff is upon the defendant, with the quali- fication already stated. 1 Cooley, 809. - Cf. Cooley on Torts, 794. Presumptions under certain circumstances. Id. 796. There is a presumption of negligence from a collision. R. R. Co. V. Movvery, 36 O. S. 418. 3 There is a presumption that plaintiff is free from negligence which casts burden of proof on defendant, 15 Wall. 401, 50 Cal. 7, 30 Wis. 892, 51 Mo. 190, 66 Pa. St. 393. 4 Railroad Co. v. Whitacre, 35 0. S. 627. But see Cooley on Torts, 809-10, cases in note 1, p. 110. Sec. 2090. Negligence — Ordinary care — Defined. Negligence in a legal sense consists of some act or omission of duty that, in the natural and ordinary course of events, might cause all the injury complained of. It is defined as being ordinary want of care, and may consist in doing something that ought not to be done, or in not doing something which ought to be done. By ordinary care we mean that degree of care which persons of ordinary care and prudence are accustomed to use and employ under the same or similar circumstances, in order to conduct the enterprise in which they are engaged to a safe and successful termination, having due regard for the rights of others, and the objects to be accomplished. It is such care as prudent persons are accustomed to exercise under the peculiar circumstances of each case. If called into exer- cise under circumstances of peculiar peril, a greater amount of care is required than where the circumstances are less per- ilous, because prudent and careful persons in such eases are accustomed to exercise more care than in cases less perilous. It is still nothing more than ordinary care under the circum- stances of the particular case. But it should be that degree of care and prudence that the circumstances reasonably reijuire; that is, it should be commensurate with the hazards ordinarily encountered. The circumstances determine whether the proper amount of care has been exercised or not. The want of proper care is 1896 INSTRUCTIONS TO JUBY. the want of that care which a reasonable man, guided by these considerations which regulate the conduct of human affairs, would have exercised under the circumstances of the particular case, the failure to observe the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand.^ 1 Voris, J., in Quinn v. Ewart, Summit Co. Com. Pleas. Negligence defined. Kinkead's Code Pig., see. 914; Harriman v. Rail- way Co., 45 0. S. 20; Cooley on Torts, 791 (659) ; Moulder v. R. R. Co., 1 O. N. P. 361. Distinction between gross and ordinary negligence, 37 0. S. 301, 313, 12 O. S. 475, 496, 28 O. S. 388, 402; Cooley on Torts, 753 (631) ; Jones on Bailments, 4-10. Ordinary care is usually defined in instructions according to definition in Terry case, 8 0. S. 582. Nejligence is the absence of care according to the facts and circumstances of each case, 29 Md. 420, 78 Pa. St. 219, 54 Pa. St. 345. Cooley's d^linition: "Negligence is the failure to observe, for the protection of the interest of another, that d^ree of care, precaution and vigilance which the circumstances justly demand" (Cooley, 630), is generally accepted. Jaggard on Torts, 810, where various defi- nitions are collected. Negligence should be measured by the character and the risk of the business. Railway Co. v. Gormly, 27 S. W. 1051. Sec. 2091. Negligence — Another definition. Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under such circum- stances would not have done. The duty is dictated and measured by the exigencies of the occasion.^ iB. & P. R. Co. V. Jones, 95 U. S. 439. Sec. 2092. Negligence — A concise definition. Negligence in law is meant the unintentional failure to per- form a duty owing to another whereby damage naturally and proximately results to another. Damage proximately resulting means that the act claimed to be negligent, the act of omission or commission, the act whereby the defendant did not exercise NEGLIGENCE GENERAL, RULES. 1897 reasonable or ordinary care, must proximately result in an injury to another. By proximately is literally meant nearest, directly. It means that the act in question operated directly to cau^:e the injury and without the intervention of any unfore- seen cause without which the accident would not have occurred.^ 1 Dillon, J., Franklin county. Sec. 2093. Negligence exists only when there is a duty — Es- sential elements to constitute. Actionable negligence exists only when one negligently injures another to whom he owes the duty of exercising care.^ It is the failure to discharge a legal duty to the person injured. If there is no duty, there is no negligence.^ There are necessarily three elements essential to its existence: 1. The existence of a duty on the part of the defendant to protect the plaintiff from injury of which he complains. 2. A failure by the defendant to perform that duty ; and 3. An injury to the plaintiff from such failure of the defendant. Wlien these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders the evidence in- sufficient.^ In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards plaintiff, which the defendant has left undischarged or unful- filled. This is the basis on which the action rests. There can be no fault or negligence or breach of duty where there is no act or service or (ontract which a party is bound to perform or fulfill." 1 B. & 0. R. Co. V. Cox, 66 0. S. 276. 2 Aker8 v. R. R, Co., 58 Minn. 540. « Faris v. Hoberg, 134 Ind. 269, 39 Am. St. 261. 4 Sweeney v. R. R. Co., 10 Allen, 368, 87 Am. Dec. 644. Sec. 2094. Imports want of attention. The term negligence imports a want of such attention to the natural and probable consequences of the act or omission com- 1898 INSTRUCTIONS TO JURY plained of as a prudent man ordinarily bestows under the same or similar circumstances.^ iZilke V. Johnson, 22 X. Dak. 75, 132 X. W. 640, Am. Ann. Cas. 1913, E. 1005; Boelter v. Lumber Co., 103 Wis. 324, 79 X. VV. 243. Sec. 2095. Negligence, active or passive. Negligence may be active or passive in character; it may consist in heedlessly doing an improper thing or in heedlessly refraining from doing the proper thing. Whether the circum- stances call for activity or passivity, one who does not do what he should is equally chargeable with negligence with him who does what he should not.^ 1 Easier r. Gas & Elec. Co., 158 Cal. 514, 111 Pac. 530, Ann, Cas. 1912, A. 642. Sec. 2096. Ordinary care — Negligence — Relationship — Duty. The term "ordinary care" is of a flexible nature, and adapts itself to the parti^^ular circumstances under which it is to be applied. It depends upon the relation existing between the par- ties in interest, as well as the business in which they may be engaged, and varies with the peculiar phase of every situation.^ When complaint is made of failure to use ordinary care, a duty toward the complaining party must be shown to exist. If there is no relationship, there is no duty.- Unless and until one is brought into relation with other men, or their property or rights, he has no obligation to act with reference to them; and this is so, whether the obligation be called legal, moral or rea- sonable, as most of the rights of persons and property in the social state are not absolute, but relative.^ 1 Palace Hotel Co. r. Medart, 87 0. S. 130. -'Garland v. Railroad, 76 X. H. 556, 86 Ati. 141, Am. Ann. Cas, 1913, E. 924. Sec. 2097. No element of purpose or moral turpitude. The ordinary act of negligence has in it no element of moral turpitude. There need be no purpose to commit a wrong as to NEGLIGENCE GENERAL RULES. 1899 anj' one, nor a conscious remissness in legal duty. Wlien such a purpose or consciousness exists, there is an added reason for holding the wrongdoer responsible for all consequences of liis act. It is this idea which is at the foundation of the law im- poses liability when the fault is wanton or willful, or what is sometimes called gross negligence.^ I Garland v. Eailroad, 76 X. H. 5.56, 86 Atl. 141, Am. Ann. Cas. 1913, E. 924. Sec. 2098. Ordinary care under circumstances of peculiar peril — Intent not an element of negligence. It is defined as being the want of ordinary care, and may consist in doing something which ought not to be done, or in not doing something which ought to be done. Ordinary care is that degree of care which persons of ordinary care and pru- dence are accustomed to use and employ under the same or similar circumstances, in order to conduct the enterprise in which they are engaged to a safe and successful termination, having due regard for the rights of others and the objects to be accomplished. The ordinary care required by the rule has not only an absolute but also a relative signification. It is such care as prudent persons are accustomed to exercise under the peculiar circumstances of each case. If called into exercise under circumstances of peculiar peril, a greater amount of care is required than where the circumstances are less perilous, be- cause prudent and careful persons, having in view the objects to be attained, and the just rights of others in such cases, are accustomed to exercise more care than in cases less perilous. The amount of care is, indeed, increased, but the standard is the same ; it is still nothing more than ordinary care under the circumstances of the particular case. The circumstances, then, are to be regarded in determining whether ordinary care was exercised. The want of proper care is the want of that care which a reasonable man, guided by those considerations which should regulate the conduct of human 1900 nsrsTBucTioNs to juey. affairs, would have exercised under the circumstances of the particular case. Intent is not an element of legal negligence. Therefore, the plaintiff need not show that the injury was intentional ; but the negligence complained of, to enable the plaintiff to recover, must be the proximate cause of the injury. Sec. 2099. When negligence is wanton. Negligence which is called wanton is Avhere the person caus- ing the injury at the time sees and knows that the person injured is in a position of peril, and, notwithstanding such knowledge, commits the act causing the injury, though it was in his power to refrain froril doing such act. If the jury find from the evidence that the plaintiff was injured by the pike in the man- ner as claimed, and that one of defendant's servants, knowing that she was there in a position of peril, moved the pike and injured her, such would be a wanton injury, for which the defendant would be liable.^ 1 Approved in, Souther v. Tel. & Ex. Co., 118 Minn. 102, 136 X. W. 571, Am. Ann. Cas. 1913, E. 472. Sec. 2100. General duty to everybody becomes a particular duty to single person, when — Duty of owner of premises to keep them reasonably safe. The duty which forms the basis of a negligent act may be general and owing to everybody, or it may be particular and owing to a single person only by reason of his peculiar position. But a duty owing to everybody can never become the founda- tion of an action until some individual is placed in position which gives him occasion to insist upon its performance. It then becomes a duty to him personally. It is difficult at times to distinguish between actions of nuis- ance and actions bottomed on negligence ; but in either case there must be a breach of some duty on the part of the defendant before an action will lie against him. Thus one is under no duty to keep his premises in a safe condition for the visits of NEGLIGENCE GENERAL. RULES. 1901 trespassers. But, if he expressly or by implication invites others to come upon his premises, it is his duty to be reasonably sure that he is not inviting them into a place of danger, and to this end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.^ lUpp V. Darner, 150 Iowa, 403, 130 N. W. 409, Ann. Caa. 1912, D, 574; Dalin v. Worcester Con. St. R. Co., 188 Mass. 344, 74 N. E. 597. Sec. 2101. Cause not negligent act alone, but injury proxi- mately resulting from breach of duty. The cause of action for negligence is not the negligent act; for a negligent act is not in itself actionable, but only becomes the basis of an action when it results in injury to another. In order to support an action there must be met only the negligent act, but there must result therefrom a consequential injury proximately caused by the violation of a duty owing to the one injured w^hich is the gravamen or gist of the charge of neglect.^ 1 The above, in the main, is taken from Ochs v. Public Serv. Co., 81 N. J. L. 661, 80 Atl. 495, Ann. Cas. 1912, D. 255. The case holds that the negligent act does not constitute the cause, but the con- sequence following it. It ignores the question of duty, the viola- tion of which, according to weight of opinion, constitutes the cause. Bilikan i\ Columbus Railway & Light Co., 10 N. P. (N.S.) 561, where the matter is extensively discussed and the authorities cited. Sec. 2102. Burden of proving negligence. The rule is that one who seeks to recover of another on the ground of negligence on the part of the defendant, assumes the burden of maintaining not only the negligence complained of, but that such negligence has occasioned him loss. And this lie must establish by the greater weight or preponderance of the evidence.^ iHilsinger v. Trickett, 86 O. S. 286, Ann. Cas. 191:5, 1). 421. Sec. 2103. Ordinary care. Ordinary care means tliat degree of care wliich persons of ordinary care and prudence are accustomed to use and employ, 1902 INSTRUCTIONS TO JURY. under the same or similar circumstances, in order to conduct the enterprise engaged in to a safe and successful tennination, having due regard to the rights of others and the object to be accomplished. Ordinary eare, therefore, requires in different circumstances different degrees of watchfulness, so that what would be reasonable or ordinary care under one stat« of circum- stances wo»ld not bt such under another. By the term "ordinary care," as here used, is meant such care as ordinarily prudent persons ordinarily exercise, or are accustomed to exercise, under the same or similar circumstances, in conducting and carrying on the same or similar business, and this applies to the defendant so far as the negligence com- plained of is concerned, as well as to the plaintiff in regard to contributory negligence on his part'.^ 1 Terry case, 8 O. S. r)82. The oblijiation to exercise care "must be de- termined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances. What would be extreme care under one condition of knowledjjre and one state of circumstances would be gross negligence with different knowledge and in changed circumstances," 15 Wall. 524. Sec. 2104. Ordinary care under circumstances of peculiar peril. By ordinary care is meant that degree of care which a person of ordinary care and prudence is accustomed to use and employ under the same or similar circumstances. If called into exer- cise under circumstances of peculiar peril, a greater amount of care is required than when the circumstances are less perilous, because prudent and careful persons, having in view the object to be attained and a just regard for the rights of others, are, in such cases, accustomed to exercise more care than cases less perilous. The amount of care is indeed increased, but the stan- dard is still the same. It is still nothing more than ordinary care under the circumstances of the particular case. The jury NEGLIGENCE — GENERAL RULES. 1903 ought, therefore, to take into consideration the circumstances in determining whether or not ordinary care was used/ 1 Ordinary care varies with the danger and circumstances, 24 0. S. 631, 639, 24 O. S. 670, 676, 50 O. S. 135, 144. It varies in proportion to the peril, 8 0. S. 570, 581. Even in dangerous business ordinary care only is to be used; the degree of care is always ordinary under the circumstances of each particular case. The degree of care may be increased in difTerent cases, owing to the character of surround- ing circumstances. Weiser v. St. R. Co., 10 O. C. C. 14. It is denominated "ordinary," in the sense that it is such as persons of ordinary care and caution usually observe under like circum- stances; and it is sometimes denominated the "highest" degree of care and caution, in the sense that persons of ordinary care and caution usually observe their highest degree of care and caution under such circumstances: that is, where human life is in peril. It is "ordinary" care and caution, with reference to the class of persons who exercise it, but it is the "liighest" degree of care and caution with reference to the circumstances under which it is exercised. Railway Co. v. Snyder, 24 0. S. 676. Sec. 2105. No presumption of negligence against either party. There is no presumption against either party in this suit, excepting such as arises from the facts proved. The presump- tion of lavv' is that neither party was guilty of the negligence or wrongful conduct alleged, and such presumption must pre- vail until overcome by the evidence submitted to you. The wrongful acts complained of in order to enable the plaintiff to recover must be the proximate cause of the injury.^ 1 Voris, J., in Quinn v. Ewart, Summit Co. Com. Pleas. Tliis is applicable of course to cases where there is no such presumption. Sec. 2106. Proximate cause defined and explained. By proximate cause is meant a cause from which a man of ordinary experience and sagacity could foresee what result would likely follow ; that the injury was of such a character as might reasonably have been foreseen or expected as a natural and ordinary result of the acts or omission complained of. The injury must' have been the direct and not the remote result thereof. In this sense you will inquire into the evidence to 1904 INSTRUCTIONS TO JURY. determine whether the defendants were guilty as charged; whether the decedent was guilty of contributory negligence as charged. In the light of the evidence, how do you find the facts alleged in the plaintiff's petition to be? How do you find the facts charged in the answer to be? The evidence and our instruction to you should be your sole guide in determining the true answers to these questions. You have no right to indulge in speculation or conjectures not supported by the evidence. The plaintiff can only recover upon the particular acts com- plained of in the petition, but it is sufficient if you find any such acts or omissions on the part of the defendants that proximately caused the injury complained of, if in other respects your find- ing answers the conditions of our instructions to you. Injury alone will not support an action, there must be a concurrence of injury and wrong.^ 1 Voris, J., in Quinn v. Ewart, Summit Co. Com. Pleas. Sherman and Red. on Neg., sec. 26. Sec. 2107. Proximate cause — Another definition. By this term "proximate cause" is meant the cause which directly produced the injury. This term is used in contradis- tinction to the term "remote cause." A proximate cause does not necessarily mean the cause nearest in point of time or in point of distance, but it does mean that cause without the existence of which the injury would not have been sustained. Sometimes an intervening cause may occur between a proximate cause and the result which follows from this proximate cause. If such intervening cause is an independent one, and one which would not necessarily follow or result from the proximate cause itself, tben this independent, intervening cause would be and constitute a proximate cause in a series of causes which combine to produce the injury, and if this intervening cause was the necessary or natural result of the original cause, even though it may have been nearer the result in point of time than the orig- NEGLIGENCE GENERAL RULES. 1905 inal cause, it would not constitute tlie proximate cause, but would be regarded in law as the remote cause of the injury. Definitions.— "The proximate cause of an injury is that which, in natural and continuous sequence, unbroken by any eflicient intervening cause, produces the injury, and without which tiie result would not have occurred. . . . The remote cause is that cause which some independent force merely took advantage of to accomplish something not the probable or natural effect thereof." Goodlander Mill Co. V. Standard Oil Co., 63 Fed. 400, 11 C. C. A. 253. See, for full treatment and copious notes, Cooley on Torts, 73-86. Where tlie carelessness of plaintiff as well as that of defendant con- tributed to the injury, the jury should be instructed unambigu- ously that the plaintiff can not recover if the jury so find the facts. Railway Co. v. Krichbaum, 24 O. S. 119. See Coolej- on Torts, 816 (679). In cases of mutual negligence, the negligence of each is the proximate cause, and neither can recover, 6 0. S. 105, 109, 3 O. S. 172, 188, 24 O. S. 119. Plaintiff's negligence to bar recovery must be a proximate cause, 4 0. S. 474, 3 0. S. 172. Sec. 2108. Contributory negligence. Contributory negligence which precludes a recovery for an injury must be such as co-operates in causing it, and without which it would not have happened.^ iGregoric v. Mining & P. Co., 52 Colo. 495, 122 Pac. 785, Am. Ann. Cas. 1913, E. 1030. Sec. 2109. No recovery when there is contributory negligence. Nor can the plaintiff recover compensation for any damages which he might have avoided by the use of ordinary care and prudence under the circumstances; so, if the plaintiff (or de- cedent) did not take reasonable care under the circumstances, or if he voluntarily exposed himself to hazards he ought not to have encountered under the circumstances known to him, or that reasonably ought to have been known to him, and he tlioreby proximately caused the said injuries, the plaintiff can not re- cover. All that the law requires of the injured party in tliis respect is that he should act with reasonable care and prudence under the circumstances known to him, or that reasonably ought to have been known to him. That is, he should act reasonably, 1906 INSTRUCTIONS TO JURY. considering the means of knowledge he had and the circum- stances surrounding him, taking him just as you find him to have been, considering his age, inexperience, intelligence, and judgment as you find them to be from the evidence.^ 1 Voris, J., in Quinn r. Ewart, Summit Co. Com. Pleas. Contributory negligence only ceases to be a defense if defendant could have avoided the injury by ordinary care, 8 W. L. B. 257. The plaintiff's right of recovery is not precluded in all cases where he omits to employ his senses to discover and avoid injury, even though the omission be regarded as negligence. It does so only when the omission contributes to the injury. R. R. Co. v. Whit- acre, 35 0. S. 631; R. R. Co. v. Crawford, 24 O. S. 628. Sec. 2110. Contributory negligence — Must be proximate cause of injury. If you find from all the evidence in the case that plaintiff was not in the exercise of ordinary care at the time of the injury, and that this absence of due care, together with the negligence of the company, combined to cause the injury and death to him, then he would be guilty of contributory negligence within the meaning of the law, and his administrator could not recover [or the plaintiff may not recover]. The negligence of which I have spoken, whether on the part of B. or the defendant, must, in the language of the law, be a proximate cause of the injury. An act or omission is the proximate cause of an event when, in the natural order of things and under the circumstances, it would necessarily pro- duce that event ; that is to say, when it is tlie first and direct power producing the result. If the negligence and resulting damages are not known by common experience, or are not found by you to be usually and naturally in sequence, and the dam- age does not, according to the ordinary course of events, follow from the negligence, then the negligence and the damage are not sufficiently conjoined — not sufficiently linked together — as cause and effect to sustain an action il the negligence be that of the defendant, or to bar an action as contributory negligence if the negligence in such case be that of plaintiff. NEGLIGENCE — GENERAL RULES. 1907 Hence, if you find from the evidence that the defendant com- pany was negligent, but that said negligence was not linked to said injury as cause to effect, then such negligence was not a proximate cause as before defined, and will not sustain this action. If, on the other hand, you find that the plaintiff was guilty of negligence, and you further find that such negligence did not contribute as a proximate cause to the injury, then the plaintiff will not, for that reason, be barred of a recovery in this action.^ 1 W. T. Mooney, J., in Chicago & E. E. R. Co. v. Purviance. Sec. 2111. When plaintiff must show himself without fault or to rebut inference of negligence. It is not necessary in the first instance that plaintiff should show he was free from blame and not in fault, unless his own evidence suggests that he was negligent and to blame for the injury. If contributory negligence is suggested by plaintiff's own evidence, then the burden is on him to remove and dispel the suggestion, and show himself blameless to the jury. If not so suggested by plaintiff's evidence, then such contributory neg- ligence as will defeat a recovery, to be available, must be shown by defendant. In such case, the burden is on the defendant, and it must make it appear to the satisfaction of the jury by a preponderance of evidence,^ 1 When the case is such as necessarily devolves carefulness on the part of plaintiff, and the testimony to support it fairly puts in ques- tion the due exercise of care on his part, the jury, in determining the question of contributory negligence, should consider all the evidence. Robinson v. Gary, 28 O. S. 241. If plaintiff's testimony raises a presumption of contributory negligence, the burden is upon him to remove that presumption. R. R. Co. v. Whitacre, ,35 O. S. 627, 6.30; Hays v. Gallagher, 72 Pa. St. HO; Wiiartoii on Neg., sees. 425, 428, 28 O. S. 241. Sec. 2112. Burden of proving contributory negligence. The burden of proof as to contri})utory negligence is upon the defendant, unless the evidence introduced on the part of the 1908 INSTRUCTIONS TO JURY. plaintiff tends to show that the plaintiff was guilty of negli- gence, in which case it would be your duty to find from a pre- ponderance of the evidence of tlie whole truth that he was not guilty of negligence that contributed to his injury before he would be entitled to recover.^ 1 The authorities upon the burden of proof vary in diflferent states, bherm. & Red., sees. 106-7. See ante, No. 401, note. See full dis- cussion also in Booth's Street Railways, sec. 381; B. A 0. R. R. * Co. V. Whitacre, 35 O. S. 627. Sec. 2113. Contributory negligence as applicable to children. ' ' In the application of the doctrine of contributory negligence to children for injuries occasioned by the wrongful conduct or negligence of others, their conduct should not be judged by the same rule which governs that of adults; and, while it is their duty to exercise ordinary care to avoid the injuries complained of, ordinary care for them is that degree of care which children of the same age of ordinary care and prudence are accustomed to exercise under similar circumstances. "Persons who employ children to work with or about danger- ous machinery, or in dangerous places, should anticipate that they will exercise only such judgment, discretion, and care as is usual among children of the same age under similar circum- stances, and are bound to use due care, having regard to their age and inexperience, to protect them from the dangers incident to the circumstances in which they are placed, and as a reason- able precaution in the exericse of such care as ought reasonably to be expected of them, guarding against and avoiding injuries arising therefrom. But since the enactment of April 18, 1890,* they may not willfully employ or permit children under the age of 16 years to be placed in a position, or t» be engaged in such employment, that their life or limb is in danger. "Such employee who has not been so instructed, and who, while in the discharge of his duty as he understands it, suffers an injury in consequence of the employer's negligence, may maintain an action against the employer therefor, notwithstand- NEGLIGENCE GENERAL RULES. 1909 ing that, by reason of his youth and inexperience and the failure of the employer to properly instruct him, he did some act, in the performance of his duty according to the judgment and knowledge he possessed, which contributed to the injury, but which he did not know and Mas not advised would be likely to injure him."^ But it is for you to determine from a preponderance of the evidence whether the decedent was or was not a child under the age of 16 years; and if you find him to have been under that age, whether or not the defendants willfully permitted his life and limb to be endangered while so employed by them, or willfully permitted him to be placed in such position, or to engage in such employment at the time of the injury, that his life or limb was endangered ; whether he was properly in- structed; and whether or not such willful and negligent con- duct, if any such existed, caused the injury complained of. These delinquencies must have existed at the time of the injury and be the cause thereof to enable the plaintiff to recover, if they existed.^ 1 87 0. L. 161. 2 Rolling Mill v. Corrigan, 46 O. S. 283; Beach Contrib. Neg., sec. 136. 3 Voris, J., in Quinn v. Ewart, Summit Co. Com. Pleas. See Sherman & Eedf. on Neg., sees. 70, 73. Sec. 2114. Consent of children — Effect. While, in a general way, it may be said that to the consenting there can be no damage, yet the consent, to avail as a defense, must be the consent of a person capable of giving consent. They must have intelligence, judgment and free M'ill ; not idiots, im- beciles, insane or mere children. The law holds that infants in general can not give consent, but this holding can not apply to all infants. It is, after all, in actions like this, a question of capacity to be determined by the jury under the circum- stances of the case, considering them as children. In any event the consent must be founded in an intelligent judgment to be available. This legal disabilty arises out of the tender regard 1910 ■ INSTRUCTIONS TO JURY. of the law to the want of understanding and inexperience ot children, and as a shield to protect them against those who would take advantage of their condition.^ 1 Voris, J., in Quinn v. Ewart, Summit Co. Com. Pleas. Sec. 2115. Contributory negligence — Intoxication as afifecting. The plaintiff can not recover if he was himself in fault at the time, which contributed to his injury, and if you find that he was incapable of taking care of himself by the exercise of reason- able care, by reason of drink or any other cause, then he will not be entitled to recover. The plaintiff's claimed that intoxication, however, if proven, would not necessarily prevent recovery; but it bears upon the question whether or not he exercised reasonable and ordinary care, and if you find that he was intoxicated, and still find that he exercised reasonable and ordinary care to avoid the injury, but further find that, while he was negligent, such negligence did not contribute to the injury, that if the defendant Avas guilty of negligence, such negligence was not the proximate cause of his injury, the plaintiff' would be entitled to your verdict. If you find that the plaintiff was so intoxicated at the time of the accident as to disable him from exercising ordinary care, but find that at the time of the accident he was in charge and under tlie care of his son, who was at the time capable of exer- cising the ordinary care of an adult, and that he did exercise ordinary care under the circumstances, and if you find that the son was driving the vehicle, and that when approaching the crossing exercised ordinary care, and you further find that defendant's agents in charge of the train were guilty of negli- gence which produced the injury, then your finding should be for the plaintiff. On the other hand, if the plaintiff by reason of intoxication contributed to the injury complained of as a proximate cause thereof, that would prevent a recovery. This is a question of fact for you to determine.^ 1 Gillmer. J., in Flemminj; v. Penn. R. R. Co., Trumbull Co. Com. Pleas. Intx)xication tends to show contributory negligence, and is matter for the jury. Beach's Contr. Neg., sec. 197, citing Seymour v. Lake, NEGLIGENCE GENERAL RULES. 1911 66 Wis. 651; Ford v. Umatilla Co., 1.5 Ore. 313, etc.; Sherman & Kedf. on Neg. (4th ed.), sec. 93. Intoxication will not excuse one crossing a railroad track from the exercise of such care as is due care from a sober man. Beach's Contrib. Neg., sec. 197; Yarnall v. St. L., etc., R. R. Co., 75 Mo. 575; Kean v. B. & 0. R. R. Co., 61 Md. 154. Sec. 2116. Contributory negligence — Husband performing du- ties as such not agent of wife. If the deceased by his own negligence, or that of her agent, contributed to bring about her death, the defendant is not liable. If her husband acted as her agent in the purchase of the drug, then she is bound, and such an act would be an act to prevent a recovery in this case. But a purchase made by a husband for his wife in the discharge of his duty as a husband does not constitute him the agent of his wife. But in order to make the husband the agent of his wife, he must by her procurement and direction, and under her authority and control, have gone and made the purchase, and if he simply went in the discharge of his duty as a husband, he was not her agent in such a way that any carelessness of his could be attributed to her. If he was under her direction and control in such a way as to make him her agent, then his carelessness is her carelessness, and if he contributed by his negligence, the plaintiff can not recover here, for the plaintiff can only recover because the woman, had she lived, could recover."^ 1 From Davis v. Guarnieri, 45 0. S. 470. "The obtaining by tlie husband of food or medicine for his wife, with her knowledge and approval, does not of itself constitute such husband tlie agent of the wife in such sense as to charge her with his negligence. In order to make him the agent of the wife in such transaction, she nuist have selected the medicine, directed that he sliould piinliasc it, and he must have had nothing to do in the matter except l)y lior procurement and direction. What he did in this matter sim])ly in the discharge of his duty as a luisband was not done as the agent of his wife, and his negligence in his duties as a liusband are not chargeable to bis wife." Davis v. Guarnieri, 45 O. S. 470. See Booth on Street Railways, sec. 392. 1912 INSTRUCTIONS TO JUKY. Sec. 2117. Imputed negligence. "The doctfine of imputed negligence does not prevail in Ohio ; and if you find that the deceased died through the wrong- ful act, neglect, or default of the defendant, by himself or his agent, then the plaintiff is not deprived of the right of action in this case by reason of contributory negligence on the part of the husband or anyone else, unless such person was acting as agent of the deceased at the time."^ 1 From Davis v. Guarnieri, 45 O. S. 470. Sec. 2118. Negligence — Of parent not imputed to child. "If it be found that the plaintiff was fully capable of taking reasonable care of herself, and was injured while lawfully riding w'ith her father in his own wagon, then the conduct of the father in driving the wagon, any negligence on his part, with which the plaintiff had nothing to do, can not be attributed to her in that respect, even though the father by his negligence may have so contributed to the accident that he would be barred from recovery by his contributory negligence, it still will not prevent the plaintiff from recovering, unless she herself contributed to the negligence which caused the injury."^ 1 From street Railway Co. v. Eadie, 43 O. S. 91. See 28 O. S. 399, 24 0. S. 670, 30 O. S. 451 ; Booth on Street Railways, sees. 389, 390. Sec. 2119. Duty of employer to infant employee. "It is the duty of an infant employee to use ordinary care and prudence; just such care and prudence as a boy of his age of ordinary care and prudence would use under like or similar circumstances. The jury should take into consideration his age, the judgment and knowledge he possessed. If not under- standing all the dangers and hazards of the situation in which he was placed by the foreman, and you find it was a dangerous and hazardous situation in which to place a boy of his age, judgment and experience, it was the duty of the foreman to instruct him in respect thereto, that he might conduct himself NEGLIGENCE GENERALi RULES. 1913 SO as to guard against such peril ; and if he was injured by reason of the neglect or carelessness of the defendant, and by reason of his youth and want of judgment as to the perils of his position, did some act in the discharge of his duty as ho understood it, which also contributed to the injury, and which he did not know to be likely to injure him, and had not been properly advised and instructed therein by the foreman, he is entitled to re- cover,"^ 1 From Rolling Mill v. Corrigan, 46 0. S. 283. Sec. 2120. The la^t clear chance doctrine. Where the plaintilf , by his own negligence, has placed himself in a dangerous position, where injury is likely to result, and the servants and employees of the defendant company learned and knew of plaintiff's danger in t^ne to have avoided injuring him by exercising ordinary and reasonable care, and it failed after discovering such peril [or if, after the defendant ought under the circumstances to have become aware of plaintiff's danger, it failed] to exercise reasonable care to avoid the injury, by slackening speed of the train [or car], or in stopping the train [or car] or to give signals or warnings; and this is true, and the rule is to be applied even though the plaintiff negligently remained in his perilous position down to the time of the acci- dent. The principle of liability placed upon the one discover- ing the peril of another, though negligently caused by himself, is that the act of the one discovering such peril, and in failing to use reasonable care to avoid injury to such person, introduces a new and independent act of negligence, rendering such person, or the defendant, liable because such new and independent act of negligence becomes tlie direct and proximate cause of the injury.^ 1 Railroad v. Kassen, 49 O. S. 230; Brupgoinan v. Railroa.l, 147 hnva, 187. 123 N. W. 1007, Ann. Cas. 1912, B. 876. In the latter case it wan specially stated that plaintiff's negli-i'iu.. need not liave eea8e 1914 INSTRUCTIONS TO JURY. be continuing. In the adoption of the rule of concurrent negligence in Drown v. Traction Co., 76 O. S. 234, it is specifically ruled that tlie doctrine of last chance as formulated in Railroad Co. v. Kassen, 49 0. S. 230, does not apply where the plaintiff has been negligent, and his negligence continues, and, concurrently with the negligence of defendant, directly contributes to produce the injury. It applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence by the plaintiff so that the negligence of defendant is clearly the proximate cause of the injury, and that of the plaintiff the remote cause. See C. C. & St. L. Ry. V. Gahan, 1 C. C. (N.S.) 205; L. S. & M. S. Ry. v. Callahan, 2 C. C. (N.S.) 326. Sec. 2121. Concurrent negligence. The jury is instructed that if it appears from the evidence that the plaintiff and the defendant were both negligent, and that the negligence of both directly contributed to cause the injury, that the negligent acts of both plaintiff and defendant combined so as to directly cause the injury complained of by plaintiff in such way that it is impossible for the jury to appor- tion the contributing part of each party to the injury', as well as the responsibility therefor, then plaintiff may not recover. In other words, if it should appear from the evidence that the negligent conduct of both plaintiff and defendant Avas active, from the beginning of the peril or danger to plaintiff, and that the negligence of each was contemporaneous and continuing in point of time until after the moment of the accident or injurj', so that the jury are unable to consider the conduct of either party, apart from that of the other, and determine from the evidence whether the acts of the one were the proximate or immediate cause of the injury, while that of the other is remote, the plaintiff must fail, and the verdict should be for the defendant'.^ 1 This is a charge suggested by Drown v. Traction Co., 76 O. S. 234, fol- lowing that case in part and adding in part. NEGLIGENCE GENERAL RULES. 1915 Sec. 2122. When negligence of plaintiflF not continuing, but that of defendant is continuing and proxi- mate, while that of plaintiff is remote. But if the negligence of the plaintiff merely places himself in a place of danger doing nothing more, and he does not actively continue until the moment of the injury, and it appears from the evidence that the defendant either knew of his danger, or if by the exercise of reavsonable and ordinary diligence and care, defendant could have learned and known of the peril and danger to plaintiff, and in either ease plaintiff does not continue actively and concurrently negligent with defendant, hut if it appears that the defendant notwithstanding the negligence it appears from the evidence that the defendant by the exercise of ordinary and reasonable care could have avoided the injury, and (his) or (its) neglect to do so was the proximate cause of the injury to plaintiff, while the negligence of the plaintiff was remote, your verdict should be for the plaintiff/ 1 This is a charge suggested to meet a phase of a question suggested in Drown v. Traction Co., 76 0. S. on p. 248. Sec 2123. Injury to passenger by derailment res ipsa loquitur — Establishing prima facie case. The rule is that where a plaintiff has shown that he is a pas- senger of a carrier; that while such passenger, the car of the carrier upon which he was riding was derailed, and that he thereby sustained injury, the burden is upon the defendant to show that it was without its fault. Plaintiff having shown such a state of things as give rise to a presumption of negligence against the railroad company, this is avaihiWe to plaintiff until negatived and overthrown. Such presumption can only l)e over- thrown by proof that the casualty resulted from inevitable or unavoidable accident, against which no human skill, prudence, or foresight, as usually and practically applied to careful rail- road management, could provide.^ * Louisville, etc., R. Co. v. .Tones, 108 Ind. .').')8; Wash. & Va. W. R. Co. V. Bouknight, 113 Va. 696, 7.5 N. E. 10.32, Am. Ann. Cas. 1913, E. 546. 1916 INSTRUCTIONS TO JURY. Sec. 2124. Burden of proof when injury caused by res ipsa loquitur. Where it is shown that a person has sustained an injury, under circumstances where the maxim res ipsa loquitur applies, the plaintiff is not required, in the first instance, to prove any particular defect by evidence, other than by the prima facie presumption which the law creates in his favor. In other w'ords, the burden of proof is upon plaintiff to prove merely how the injury ocurred, which constitutes in such case a prima facie case, although the facts with respect to the defects are necessarily alleged with particularity in the petition. This satisfies the rule of the burden of proof, which technically is the rule of pro- cedure of going forward with the evidence. So in an action by a passenger against a carrier for personal injuries received by the derailment of the car in which the plaintiff was riding, the plaintiff makes out a prima facie case by proving the happening of the accident and his injury, and thereby casts upon the de- fendant the burden of rebuttal, and of explaining the circum- stances of the accident so as to relieve itself from liability. But if defendant introduces countervailing evidence in re- buttal of such prima facie case, the burden is on the whole case on the plaintiff to prove by a preponderance of the evidence that the injury was caused by the negligence of the defendant.^ iWash. & Va. Ry. v. Boukniglit, 113 Va. G96, 7o N. E. 1032, Am. Ann. Cas. 1913, E. 546. In the case cited it is held that it is for the jury to determine whether defendant has showTi hy a preponderance of the evidence that it was free. from negligence. But under the Ohio decisions the burden on the whole case remains on plaintiff though his evidence in the first instance makes out a prima facie case. See ante, sees. 529, 530. Sec. 2125. Sudden peril — Conduct of person placed in. You are instructed that the law is that where a traveler, without any fault on his part, is placed in a position of immi- nent peril at a crossing, he will not be held guilty of such negli- gence as w^ill defeat his recovery if he does not select the very wisest course; and an honest mistake of judgment in such a NEGLIGENCE GENERAL RULES. 1917 sudden emergency will not of itself constitute contributory negligence on his part, although it may appear that another course would have been better and safer ; and this rule applies where the person is placed in such perilous position by the negligence of a railroad company in failing to give the proper signals. In such emergency of sudden peril, all that is required of such traveler is that he act with ordinary care under the circumstances. It is for the jury to determine whether plaintiff was placed in a position of peril through the neglect of the defendant, and, if so, whether plaintiff acted negligently or with ordinary care, etc.^ * 1 Dickinson v. Erie R. Co., 81 X. J. L. 464, 37 L. R. A. (N.S.) 150, 81 Atl. 104. Sec. 2126. Rescuing- one from danger — Injury while attempt- ing to rescue — Contributory negligence. "To hold the railroad company responsible in damages for injury to a person who is struck by an engine and injured while in the act of crossing the track and rescuing a little child from danger and saving its life, it must be shown (1) that the child was in danger of being run over and injured by an approaching engine, and that such danger was caused or created by the negli- gence of the railroad company; and (2) that in making the effort to rescue the child the plaintiff was not guilty of contribu- tory negligence. These are questions of fact which it will be your duty to determine from the evidence. "If you find that the peril to which the child was exposed was caused by such negligence of the company, you will then inquire whether the plaintiff, in passing across tlie track and attempting to rescue the child, was guilty of contributory negli- gence. The law will not impute negligence to an effort to save human life unless made under such circumstances as to consti- tute rashness in the judgment of prudent persons. "If he believed, and had good reason to believe, that he could save the life of the child without serious injury to liimself, the law will not impute to him blame for making the effort."^ 1918 INSTRUCTIONS TO JURY. 1 Penna. Company v. Langendorf, 48 0. S. 316. In the opinion in the above case, Bradbury, J., says : "The attendant circumstances must be regarded; tlie alarm, the excitement and confusion usually present on such occasion, the uncertainty as to the proper move to be made, the promptness required, and the liability to mistake as to what is best to be done, suggest that much latitude of judgment should be allowed to those Mho are tlius forced by the strongest dictates of luimanity to decide and act in sudden emerg- encies. And the doctrine that one, who, under these or similar circumstances, springs to the rescue of another, thereby encounter- ing even greater danger to himself, is guilty of negligence per se, is neither supported by principle nor authority." Sec. 2127. Law designs to hold the one whose conduct causes injury, whether plaintiff or defendant. It is the nature of man to protect himself, and this is the measure of duty in law. In cases of negligence the law designs that the one whose conduct causes the injury shall be held responsible for the con- sequences thereof. If the conduct of the defendant, measured by the tests of law, is the one that is responsible, then, of course, the judgment must go against it. If the conduct of the plaintiff himself was the cause of the injury, then, of course, he has no right to recover. The nature of human rights and justice suggests this test of right of recovery and of defense. It is natural to hold one responsible for the natural consequences of his oa\ti act, no matter what the circumstances may be. However, anyone might feel that a result might be otherwise, the law can not rest upon any other basis whatever than the one test of who was at fault. It is a part of the very nature of man to take such precautions as are reasonably calculated to protect himself; and hence the measure of duty which the law imposes upon him and exacts of him is that he shall use such care for his own protection and safety as ordinarily prudent persons would have done under the same circumstances. If he fails to do this, his act will constitute negligence. And if his acts constitute and are the efficient cause of the injury, then, of course, he can not recover. NEGLIGENCE — GENERAL RULES. 1919 On the other hand, human rights and the law requires that every person shall observe such care as may be reasonably cal- culated to avoid or prevent injury to another person who is himself in the due, proper and ordinary exercise of care for his own protection. Hence, the measure of duty required in such case is the observance of ordinary care to avoid and pre- vent injury to such other person. A violation of this duty resulting in the direct cause of the injury constitutes negligence. This was the obligation resting upon the defendant in this case. And while a corporation is an artificial body and, as they sometimes say in argument to a jury that it has no soul, has no conscience, etc., nevertheless we must act upon the same presumptions and the same rules of law with respect to those persons who are in charge of its affairs. It is human nature for anyone to not wish to injure another intentionally or carelessly, and it must appear, therefore, that they have thoughtlessly or carelessly neglected to do something that Avas reasonably calculated to protect another person and to prevent injuring him, in order to make them liable. CHAPTER CXXII. NEGLIGENCE— MISCELLANEOUS CASES. SEC. 2128. Injury from defective gun. 2129. Charge that gun was negli- gently carried, thus causing death. 2130. Liability of owner of race- track for injury to driver from defect in track. 2131. Same — Negligence of defend- ant must proximately cause injury. 2132. Same — Diligence recjuired of plaintiff. 2133. Liability of county for injury by mob. 2134. Injury from natural gas explosion — Independent contractor — Kuie of re- spondeat superior not applicable. 213.'). Same — Injury from failure to close and calk pipes. 2136. Injury from explosion of boiler. SEC. 2137. Collision between street car and steam railway en- gine at crossing — Action for damage to street car. 1. Duty of each party. 2. Ordinances as to speed. 3. Failure to sound whistle. 4. Gateman — Open gate an invitation to proceed. Did not absolve driver from exercising due care. 2138. Injury to passenger from col- lision between cars on scenic railway in public park. 2139. Traction engine in highway 1 a w f u 1 — No liability from ordinary use — Not bound to be on lookout for frightened horses in field — Owner or operator liable for wanton or un- 'necessary sounding whistle. Sec. 2128. Injmy from defective gun. The action from which the following is taken was one for negligence for wrongful death caused by a defective gun, which, on account of the defect therein, discharged while in the hands of the defendant, killing the deceased who was a little in advance of the defendant. In your investigation of matters which are here submitted to you, you will first proceed to inquire and determine whether or not this gun was defective. If you find that it was not, upon this branch of the case the defendant will be entitled to a fiud- 1920 NEGLIGENCE MISCELLANEOUS CASES. 1921 ing in his favor. If you find that it was thus defective, then you are to inquire and ascertain whether or not the defendant had knowledge of its defective condition ; or if he had not actual knowledge, would he by the exercise of ordinary care have known of this defective condition? If you find that he neither had knowledge, nor by the exercise of such ordinary care would not have known of the defects claimed on the part of the plaintiff to exist in this gun, then upon the question as to the defective gun alone being the cause of the accident, the defendant would be entitled to a finding in his favor; if on the other hand yo, find that this gun was defective in the particulars complained of, and that the defendant knew of this defect, or by exercising ordinary care would have knowTi of the defect, then upon this branch of the case the plaintiff would be entitled to a finding in her favor.^ '> Johnston, J., in Lechleitner v. King, Trumbull Co. Com. Pleas. Sec. 2129. Charge that gnn was negligently carried, thus caus- ing death. It was the duty of the defendant in carrying the gun to exer- cise ordinary care for the safety of the deceased; and if his failure to exercise such care was the proximate cause of the injury resulting in the death of the deceased, then the plaintiff will be entitled to recover in this case, provided you find that the deceased himself was in the exercise of ordinary care at that time. It was the duty of the deceased to exercise ordinary care for his own safety, and if you find that he failed to exercise such care, and that his failure to thus exercise such care con- tributed to produce or cause the injury resulting in his death, then the plaintiff would not be entitled to recover in this action.^ 1 Johnston, J., in Lechleitner v. King, Trumbull Co. Com. I'leaa. Sec. 2130. Liability of owner of racetrack for injury to driver from defect in track. A defendant, l)y advertising a fair and horseraces to take place on his racetrack, and offering premiums to winners of such 1922 INSTRUCTIONS TO JURY. races, invited those persons desiring to compete for such pre- miums to enter their horses in such races and to employ persons to ride their horses in such races ; and by that action on his part a defendant impliedly warranted to all such persons and riders that his track was reasonably well constructed for the purpose for which it was to be used, and that ordinary care had been used by him to protect and guard it against danger to those engaged in riding horses in said race. And the plaintiff, if he had no knowledge to the contrary, might rely upon such warrant. And the defendant will be charged in law with a knowledge of the existence of any and all defects which were open to inspection, and which might have been discovered by a man of ordinary prudence and care. He was required to provide the track with such appliances as ordi- nary care and prudence suggested to avert danger and secure a reasonal)le safety to others coming upon or using said track at his invitation or request. Therefore, if leaving the bank along the defendant's track, at the point where the accident happened, without any protec- tion or guard, rendered it unsafe to riders and to racehorses over said track at that point, and unreasonably exposed said riders to danger of accident by reason of such condition of the bank, and if ordinary care, that is, such care as prudent men ordinarily employ in similar matters, required that the defend- ant sliould have provided some means by fencing along or other- wise guarding said point to prevent accident or injury, then his omission to provide some such means would be negligence on the part of the defendant.^ iNewby, J., in Palen v. Thomas, Highland Co. Com. Pleas, Sec. 2131. Same — Negligence of defendant must proximately cause injury. In order that the defendant's negligence may be said to be the proximate cause of the injury, the plaintiff is required to make it appear, by a preponderance of the evidence, that had the defend- ant exercised ordinary care in the construction and guarding of NEGLIGENCE — MISCELLANEOUS CASES. 1923 the track the accident would not have happened, and that the injury inflicted was the result of the defendant's carelessness in not guarding the defect complained of, and was an injury such as might have been foreseen and reasonably anticipated as likely to result from such carelessness. Therefore, if the liorse which plaintiff was riding did not stumble against the bank, but was tipped or knocked down by another horse in the race, then the plaintiff can not recover, although the defendant may have been negligent in the manner above stated. The defendant was not the insurer of the plaintiff's safety, nor is he responsible for the negligence of other riders with the plaintiff in the race,^ 1 Newby, J., in Palen v. Thomas, Highland Co. Com. Pleas. Sec. 2132. Same — Diligence required of plaintff. Although the defendant may have been guilty of negligence, still the plaintiff can not recover if he knew of, or had reason- able means of ascertaining, the defect complained of. The plaintiff was not allowed to shut his eyes to the circumstances and conditions surrounding him. But he will be charged with knowing whatever he would have discovered, as to the condi- tion of the track, had he employed ordinary prudence and cau- tion for that purpose. The degree of diligence and care which the law required the plaintiff to exercise was such as one of his age and experience would ordinarily exercise under the circumstances, to look for and ascertain the dangers incident to his employment. And if the plaintiff saw, or by the exercise of such diligence could liave discovered, the unprotected and exposed condition of tlie track before he was injured in it, and have avoided the injury, it was his duty to quit the employment. If he continued in the employment after knowing or being tlius eliarged witli a knowl- edge of the danger, he will be held to have assumed all the risk of such danger, and in such case he can not recover, although the defpndant may have been negligent also.^ iNewby, J., in Palen v. Thomas, Highland Co. Com. IMeas. 1924 INSTRUCTIONS TO JURY. Sec. 2133. Liability of county for injury by a mob. The statutes of this state declare, in substance, that any collec- tion of individuals assembled for any unlawful purpose, intend- ing to do damage or injury to anyone, or pretending to exercise cerrectional power over other persons by violence and without authority of law, shall, for the purposes of the act, be regarded as a mob. The act also provides that any act of violence exercised by them upon the body of any person shall constitute a lynching. Thus we have a definition, a statutory definition, of a mob and of a lynching, to control us in this case. The statutes further declare that any person assaulted by a mob and suffering a lynching at their hands shall be entitled to recover from the county in which the assault is made any sum not to exceed $ . The suit in question is planted under these statutes. The court instructs you that before the plaintiff is entitled to recover a verdict at your hands, there are certain material allega- tions in the petition which are controverted l)y the answer, that the plaintiff must prove by a preponderance of the evidence. These material allegations are these: First : That the plaintiff was assaulted by a mob, defining a mob as defined by the statutes, that is, by a collection of individuals assembled for an unlawful purpose, intending to do damage or injury to any one, or pretending to exercise correc- tional power over other persons by \'iolence, and without authority of law. Second: That the plaintiff suffered a lynching at the hands of such mob ; that is, that the mob exercised some act of violence upon the body of the plaintiff ; and, as I have heretofore said to you, a lynching consists in an act of violence exercised by a mob upon the body of any person. Third : That the alleged assault and lynching at the hands of said mob occurred in this country about the time alleged in the petition. The exact time is not important. If these three essential elements are proved by a preponder- ance of the evidence, the plaintiff is entitled to a verdict ; but if NEGLIGENCE MISCELLANEOUS CASES. 1925 the plaintiff has failed to so prove any one or more of said elements, he is not entitled to a verdict, and the verdict should be for the defendant. By a preponderance of the evidence is meant the greater weight of the evidence. The court further instructs you that wliile it is essential that the alleged assault, if it occurred, be made by a mob, yet, if there was a collection of individuals assembled at or near the corner of street and L. avenue for the unlawful purpose and intention of damaging or injuring anyone, or of exercising correctional power over others by violence and without authority of law, and if in furtherance of the unlawful purpose on the part of such mob, any one of said mob actually made the assault upon the plaintiff, it is a sufficient assault by the mob. * * * In like manner, if a mob had assembled at or near the comer of and L . Ave., as alleged, with the unlawful purpose and intent of exercising acts of violence upon the body of any person, and one of their number at the time and place of the assemblage, in furtherance of their common design, exercised acts of violence on the body of the plaintiff by striking him on the legs as alleged, it constitutes a lynching by such mob. The Court further instructs you that to constitute a mol), it is essential to prove that the collection of individuals was as- sembled for an unlawful purpose, as heretofore stated, or being assembled for a lawful purpose, while so assembled, determined among themselves to do some unlawful acts. Now, purpose or intent are operations of the mind, and are not usually proved by direct or positive evidence. Persons do not usually declare that they liave assembled or gathered to- gether for unlawful purposes, so tliat intent and purpose are usually proved by indirect or circumstantial evidence. You will, therefore, in determining whether the asseml)lage was gathered for an unlawful purpose, or, after being gatlicred, determined to do an unlawful act, perform some unlawful act, consider the acts, conduct and declarations of the persons whose intent is sought to be proved, as reflecting upon the purpose and 1926 INSTRUCTIONS TO JURY. intent of the persons collected together, if there were such per- sons, together with all the other facts and circumstances sur- rounding them, prior to and at the time and subsequent to the alleged assault, if it occurred, and determine whether the col- lection of indi^dduals, if assembled, as alleged, were present with an unlawful purpose or intent either to damage or injure any- one, or to exercise correctional power over others with violence and without lawful authority. If the plaintiff was struck oy a stone, as alleged, and you should conclude that the person who struck him Avas not a member of a mob, as I have heretofore defined it to you, but acted independently of a mob, then the plaintiff can not recover in this case; for the plaintiff recovers under the statutes, if at all, for mob violence upon him, by some one of the mob who may have attacked him or assaulted him with a stone or other weapon, as the case might be, and he can not recover if it was some inde- pendent act of some person who was not acting in conjunction with the mob. Gentlemen, the Court further instructs you that if there was a collection of persons assembled as set forth in the petition, for an unlawful purpose, either intending to damage or injure others, or to exercise correctional powers over others by violence and without authority of law, even though the collection of per- sons did not specifically intend to injure this plaintiff, if such a collection of persons did injure this plaintiff, the defendant is liable, if the mob or collection of persons had the general intent to injure persons in that immediate locality.^ 1 Hoover v. Gibson, Franklin Co. Com. Pleas, Rogers, J. Sec. 2134. Injury from natural gas explosion — Independent contractor — Rule of respondeat superior not applicable. The liability of one person for damages arising from the neg- ligence of another, or the principle of respondeat superior, is confined in its application to the relation of master and servant, or principal and agent, and does not extend to cases of inde- NEGLIGENCE MISCELLANEOUS CASES. 1927 pendent contracts not creating those relations, and where the employer does not retain control over the mode and manner of the performance of the work under the contract. But where the employer retains control and direction over the mode and manner of doing the work, and an injury results from the negligence or misconduct of the contractor, or his servant or agent, the employer is placed under a liability equal and similar to that which exists in the ordinary case of principal and agent. Although the defendant is not liable for the negligence of its independent contractor where it retained no control over the mode and manner of the performance of the work contracted for, yet it may be liable, if it was itself guilty of negligence in allowing or permitting said natural gas to escape through a defectively laid or jointed gas-pipe or main. If, by the exercise of ordinary care and prudence, it could have discovered such defect, and it did not do so, it was guilty of negligence. It was not bound to know that such defect existed, but it was required to use ordinary care and prudence to prevent accidents and injuries to others, and whether it used that degree of care and prudence which men of ordinary care and prudence are accustomed to use under the same or similar circumstances, is a question for the jury to determine. If it did, it is not liable. But if it failed and neglected to use ordinary care, it was negli- gent, and, if its negligence was the proximate cause of the injury complained of, the plaintiff is entitled to recover, unless he has himself been guilty of contributory negligence.^ 1 Central Ohio Xatural Gas & Fuel Co. i\ Baker, supreme court, aflTirmed. Evans, J., Franklin Co. Com. Pleas. Sec. 2135. Same — Injury from failure to close and calk pipes. If the evidence shall fail to show by a preponderance that tlie defendant was guilty of negligence in either of said particulars, your verdict must l)e for th(> defendant. If, liowcver. it sliows by a preponderance thereof that the defendant was guilty of 1928 INSTRUCTIONS TO JURY. negligence in either of said alleged particulars, and that its negligence in that respect was the proximate cause of the injury complained of by the plaintiff in his petition, the defendant is liable. If the evidence shall show that the gas escaped from one or more of the joints of the gas-pipe or main, and that it caused an explosion and an injury to the plaintiff, such facts alone do not raise any presumption, nor do they tend to prove that the defendant was guilty of negligence, and before you can find that it was, the evidence must show that it failed and neglected to use and employ that degree of care and prudence which persons of ordinary care and prudence are accustomed to use and employ under the same circumstances. If it used such degree of care, it is not guilty of negligence. But if it failed to use such care, it was guilty of negligence. 1 From Central Ohio Natural Gas & Fuel Co. r. Baker, supreme court, affirmed. By Evans, J., Franklin Com. Pleas. Sec. 2136. Injury from explosion of boiler. If the plaintiff was without fault on his part, and was injured by the explosion of a boiler operated by the defendants, or their servant or agent, the mere fact of such explosion raises a pre- sumption of negligence on the part of the defendants. This presumption is only prima facie, however, and not conclusive; that is, the plaintiff will be entitled to recover on such presump- tion, unless the defendants, by a preponderance of evidence, show that they exercised ordinary care and prudence, that is, such care and prudence as is ordinarily exercised by men of ordinary prudence under like circumstances. It was the duty of the defendants to furnish a competent engineer to run said engine and boiler, and if the plaintiff was injured by reason of the incompetency of the engineer, the plaintiff can recover, if he was without fault himself. If you find from the evidence that plaintiff's injury was caused by the explosion of the steam boiler operated by and belonging to the defendants, they must NEGLIGENCE — MISCELLANEOUS CASES. 1929 show by preponderance of proof the competency of their en- gineer. If, however, it be shown that the defendants' engineer was competent, yet if he, by any carelessness or neglect on liis part, caused the explosion and injured plaintiff, he can recover, if plaintiff was without fault on his part. The engineer must not only have been competent, but he must not have failed to exercise his competency with proper care and skill. Was there any want of care on the part of the engineer in the management of said boiler at the time of said explosion? In determining this you will inquire was there a lack of water in the boiler, and what was the pressure of steam in the boiler at the time, and whether it was excessive. Of course, if the plaintiff was himself acting as engineer at the time, and neglected to exer- cise due and ordinary care, he can not recover. It was also the duty of the defendants to furnish machinery reasonably proper and fit for the purpose for which it was used. If there was any defect in the engine or boiler which the defendants knew of, or of which they might have known by the exercise of reasonable care and diligence, and the plaintiff was injured by reason of such defect, he will be entitled to recover. This does not, however, relate to the lack of power in the engine to operate the said mill.^ 1 From Huff v. Austin, supreme court, afSrmed. Price, J., Ijogan county. Sec. 2137. Collision between street car and steam railway en- gine at crossing — ^Action for damage to street car. 1. Duty of each party. 2. Ordi/namces as to speed. 3. Failure to sound whistle. 4. Gateman — Open gate an invitation to proceed — Did not absolve driver of car from exercising due care. 1. Duty of each party. The defendant was bound to exercise ordinary care towards the plaintiff in running and operating 1930 INSTRUCTIONS TO JURY, its locomotive upon aud along its track, and in crossing the track of the street railway of the plaintiff, and the plaintiff was bound to use ordinary care on its part in crossing the railroad track of the defendant. 2. Ordinances a>s to speed. In determining the questions, you should carefully consider the ordinances of the city of Y., one of which requires the locomotives passing through the city limits to run at a speed less than six miles per hour, and if you should find at the time of the collision the engine was being run by the defendant at a speed greater than six miles an hour, this fact alone would not be sufficient evidence to entitle the plaintiff to recover, yet it is competent evidence to be considered by you in connection with the other evidence adduced, as to whether or not the engine was being run at a dangerous rate of speed, and whether or not the defendant is liable for negligence or want of care on that occasion. 3. Failure to sound u'histle. Neither would the failure to sound the whistle of the locomotive, unless you find that the defendant by sounding the whistle could liave avoided the col- lision with the car of the plaintiff, and that the failure to sound the same was negligence on the part of the defendant, which resulted in injury to the plaintiff. 4. Gaieman — Open gate cm invitation to proceed — Did not ahsolve driver of car from exercising due care. And if you find that the defendant maintained the gate at that crossing, and that the same was in charge of a gateman placed there by the defendant, the plaintiff though driver of the street car, had a right to rely upon the gateman properly discharging his duty; and if the driver of the street car, upon approaching the cross- ing, found the gate open, it was an invitation to him to proceed, and it indicated to him that the track was then clear, and that he might proceed with safety ; but he had no right to blindly rely upon this fact, and rush into danger which he saw or heard, or which, by the exercise of ordinary care, he might have seen and heard; and it did not absolve him from the duty of NEGLIGENCE — MISCELLANEOUS CASES. 1931 exercising ordinary care upon his part in entering upon the crossing and in crossing the track of the defendant. Notwith- standing this fact, the driver was bound to exercise his senses, to look and listen, and to take all such precautions as ordinarily prudent persons ordinarily exercise under the same or similar circumstances, to stop his car or proceed promptly across the track, whichever, under all circumstances, ordinarily prudent persons would have done ; and if he did that which ordinarily prudent persons, under the same or similar circumstances, would not have done, or omitted to do that which ordinarily prudent persons would have done under the same or similar circum- stances, and this act or omission on his part contributed to the damage which the plaintiff sustained, then the plaintiff could not recover, even though the defendant was negligent in having the gate open at that time.^ 1 Johnston, J., in Youngstown Street Railway Co. v. N. Y. L. E. & W. R. R. Co. Sec. 2138. Injury to passenger from collision between cars on scenic railway in public park. If the plaintiff took passage in one of the defendant's cars and paid the usual fare for riding, with the intention as con- templated by both parties, of carrying her over the course of said railway to the original starting point, it was the duty of the defendant, and she had the right to assume that the de- fendant v.ould exercise ordinary care in the management and operation of the said railway, including the car and track on which she was riding, in order to prevent a collision of such car with another on said track; and if the collision as alleged, occurred in the manner alleged in the petition, while defendant was in control and management of the device known as the scenic railway including the car with which the car in which the plaintiff alleges to have been riding collided, and if from the character, management and circumstances of said collision vou find that the collision was such as in the ordinary course 1932 INSTRUCTIONS TO JURY. of things would not have happened if the defendant had exer- cised ordinary care in the management of said railway and of the operation of the cars and track in connection therewith, you are justified in finding that such accident resulted from want of care on the defendant's part; or in other words, that the defendant was negligent in the particular mentioned in said petition, unless the defendant by at least an equal weight of countervailing evidence adduced, shows that the accident did not occur by reason of a want of ordinary care on its part, but occurred notwithstanding its exercise of ordinary care at the time of the accident. Whether or not the character, manner and circumstances of the alleged accident as shown by the evi- dence adduced justifies you in drawing the inference that the defendant was guilty of negligence in the particular alleged in the petition, and if so, whether or not the defendant has rebutted such negligence by an equal weight of countervailing evidence sliowing that notwithstanding said accident it exer- cised ordinary care in the premises, are matters entirely left to your judgment. If you determine from the evidence that the manner and cir- cumstances of the accident raise a reasonable inference that the defendant was negligent as alleged in the petition and that no sufficient explanation of the accident by evidence on the part of the defendant, of equal weight to that of the plaintiff on the question of negligence, has been made, showing that notwith- standing the occurrence of the collision the defendant exercised ordinary care, it will be your duty to find that the defendant was negligent in the particular complained of. But if you de- termine either that the manner and character of the accident do not raise a reasonable inference of negligence as alleged against it, or although the manner and character of the acci- dent raises a reasonable inference of defendant's negligence, such negligence has been rebutted by at least an equal weight of evidence on the part of the defendant showing that notwith- standing the accident the defendant exercised ordinary care, NEGLIGENCE MISCELLANEOUS CASES. 1933 you will find that the defendant was not negligent in the par- ticular as alleged, and you will return a verdict for the de- fendant.^ 1 Chambers v. The Olentangy Park Co., Com. Pleaa Court, Franklin Co., 0. Rogers, J. Sec. 2139. Traction engine in highway lawful — No liability from ordinary use — Not bound to be on look- out for frightened horses in field — Owner or operator liable for wanton or unnecessary - sounding whistle. The jury is instructed that the operation of a traction engine as under the circumstances appearing in the evidence in this case, was a lawful, legitimate business, and that the defendant had the right to operate it and engage in tlie work that they were doing at the time. There can be no liability on the part of the defendant for any consequences of the injury by the usual, ordinary and reasonable operation of the engine, when, for instance, the defendant has done nothing unusual, notliing out of the ordinary, nothing beyond what was reasonably and ordinarily necessary to be done in the management and in the operation of the engine and including the matter of the blowing of the whistle. The defendant can not be held bound to be on the lookout for the ordinary fright of horses in a field or by reason of the passage of the engine, nor by reason of the ordinary and reason- ably necessary blowing of the whistle, in pursuance of some duty and purpose to be accomplished by blowing tlie whistle. The defendant can be held only for extraordinary consequences, only for the wanton and unnecessary sounding of the wliistle, sounding of the whistle when it is not reasonal)ly necessary to accomplish some purpose but is carelessly, wantonly and use- lessly sounded. Now I think that I should say to you that in addition lo what I have said that it is not the duty of the defendant to keep on 1933-a INSTRUCTIONS TO JURY. the lookout for the ordinary frightening of animals; that the defendant would not be liable for the injury to the horse unless after discovering its fright and seeing the horse in a frightened condition that he blew the whistle under those circumstances unnecessarily, and even necessarily if he could just as well have avoided it and accomplished his purpose in some other reason- able manner. In order to find the defendant guilty I do not know but what you w^ould have to find from the evidence that he could have reasonably anticipated the consequences of the fright to the animal. A man operating a traction engine under such circumstances could not ordinarily and usually be held to anticipate that an animal would become frightened and kill itself from the ordinary use of the engine. If the horse or the horses were already frightened by the operation of the engine or by the running of the engine, the jury may consider whether the blowing of the whistle added perceptibly to their fright, or materially contributed to the injury, and whether the defendant could reasonably have anticipated that the horse would do more than run around in the field ; whether if the whistle had not been blown the horse was already in such frightened condition that he might or could have injured himself in the maimer in which he was. Negligence is the absence of care under the particular cir- cumstances. And, of course, the question which I have sub- mitted to you here is whether or not the defendant was ordi- narily prudent or whether or not he was guilty of a lack of prudence under the peculiar circumstances of this case, and whether that lack of prudence, if any there was, was the direct and immediate cause of the death of the animal. I have endeavored to make it clear, if I have not, that my view of the law is that the defendant is not bound to keep a lookout for the frightening of the horses. Of course he has his own duties to perform in the operation of the engine, and if he did not know that the horse was in a frightened condition and blew the whistle, not knowing that, or if he could not have NEGLIGENCE MISCELLANEOUS CASES. 1933-b reasonably known of its fright and blew the whistle under such circumstances, there would be no liability. But if he did know and saw the frightened condition, and if the jury believe that if the whistle had not been blown under such circumstances and it was unnecessarily blown, then he would be liable. If you find for the plaintiff you will assess the amount of the value of the horse together with any expenses that the plaintiff may have incurred for caring for the horse after the injury, and fix the amount in your verdict.^ If you find for the defendant you will simply say so. 1 Hunter v. Koehler, Franklin Co. Com. Pleas. Kinkead, J. This is a novel case. It is given as a suggestion. CHAPTER CXXIII. NUISANCE. (For Streets, Sidewalks, Excavations, involving liability of mu. nicipality, see Chapter , Municipal. Corporations.) SEC. 2140. 2141. 2142. 2143. 2144. 2145. N u i 6 a n c e — Comprehensive view and definition of wrong. Definition — Another form. Modern statutory definition. Tliere must be actual injury more than a mere ten- dency. Degree of annoyance to con- stitute. Liability of property owner for injury to traveler from opening or excava- tion in street adjoining. i. Dominion over property by owner — May exclude persons from it. 2. Duty of traveler on high- way. 3. Private road. 2146. Duty of lot owner where an excavation made in side- walk in front of premises by contractor. 2147. Responsibility of lot owner for excavation made In premises in front of premises by independent contractor. 2148. Duty of traveler on highway — May presume city has performed its duty with reference to street s — Lights and guards im streets. 2149. Adjoining landowners, rights and obligations of, to each other. To what extent lower proprietor may dig. Sec. 2140. Nuisance — Comprehensive view and definition of wrong. Nuisance, as a wrong in law is to be distinguished from neg- ligence. The boundary, or dividing line between the two may at times be obscure and difficult to discern, because nuisance involves and includes acts of negligence. The wrong is so gen- eral and comprehensive in relation to the acts and conditions which it embraces that a specific definition made to cover a given case may not include all acts and conditions which it may 1934 NUISANCE. 1935 in general embrace. An attempt to define all nuisances is to describe the infinite variety of ways in which one may be an- noyed or impeded in the enjoyment of his rights whicli are injured by the wrong designated in law as nuisance. Generally speaking, anything not authorized by law which maketh hurt, inconvenience or damage is held to be a nuisance. But such conception of the wrong ignores the element which distinguishes it from negligence and marks the dividing line between the two. This element or characteristic is the duration or continuance of the acts or conditions, the period of time which a condition or situation is allowed by continuous neglect or omission to exist or remain, so as to menace and injure the rights of others. An act of negligence is specific and definite, and when com- mitted, a right of action arises at once in favor of one injured thereby. On the other hand, the maintenance of a nuisance implies negligence and worse. It may begin with a specific act of negligence while the wrong becomes complete and existing by continuous acts of omission and neglect. So in a general way it may be said that nuisance consist's of continuous neglects or omissions in the use. care or management of property, streets, highways, or of acts of commission in the use of property, or in carrying on a trade, or in the exercise of proprietary rights, whereby another is injured in his person, health, personal comfort or property. There are three rights which may be injured l)y nuisance, viz.: the right of person, the right of personal comfort, and the right of property. To particularize further, such rights, or either of tluMii. must be actually injured to some appreciable, tangil)le or measurable extent. And this is to be decided by the jury aeeonliiig to th(> notions of comfort and convenience entertained l)y persons gen- erally of ordinary tastes, and as shown by the evidence. The jury are not allowed to speculate and conjecture outside of the evidence, according to the individual notion or view of men 1936 INSTRUCTIONS TO JURY. conii)osing the panel, but must instead be governed by the evi- dence admitted, and the law applicable. [Then may follow an instruction to the particular case in hand.] Sec. 2141. Definition — Another form. "The term nuisance, derived from the French word *miire/ to do hurt, or to annoy, is applied indiscriminately to infringe- ments upon the enjoyment of proprietary and personal rights. "'^ Nuisance, something noxious or offensive. Anything not au- thorized by law% which maketh hurt, inconvenience, or damage.- By hurt or annoyance is meant not a physical injury to the owner or possessor thereof, as respects his dealing with, possess- ing or enjoying them.^ "Nuisance is a distinct civil %vrong, consisting of anything w^rongfully done or permitted which interferes with or annoys another in the enjoyment of his legal rights."* If an individual or corporation (municipal or private) upon whom is imposed the burden of keeping a highway in repair, permit the same to be out of repair so as seriously to interfere with convenient transit over the same, it is a nuisance, subjecting the person or corporation to damages at the suit of persons injured by reason of such defects or want of repair.^ To constitute a nuisance, there must be a material or substan- tial injury, and not an imaginative one. It may be difficult in some cases to ascertain whether the injury be material ; but it is a question for the jury to consider and determine." Hence to entitle plaintiff to recover in this action, you must find from a preponderance of the evidence that he has suffered a real, material, and substantial injury, and it is left for you to determine what amounts to such an injury.'' 1 Addison on Torts, 361. 2 46 O. S. 446. sCooley on Torts. 670. ■t See Bishop's Non. Cont.. sec. 411, note: Cooler on Torts, 670 (565). A precise definition is impracticable. 12 O. S. 398. BWood on Nuisance, sec. 307; Cardington v. Fredericks, 46 0. S. 442. NUISANCE. 1937 *•■ Cooper r. Hull, 5 0. S. 321, 23, 24. ' Cols. Gas, etc., Co. v. Freeland, 12 O. S. 400. Tlie question of nuisance vel non can not be determined by reference to the rules of the common law, but each case must i)e considered on its own facts. A thing may or may not be a nuisance according to the manner in which it is placed, or the time it has been carried on without complaint, when measured by the mind and taste of the average citizen. Densmore v. Evergreen Camp, 01 Wash. 230, 112 Pac. 255, Ann. Cas. 1912, B. 1206. Sec. 2142. Modem statutory definition. A nuisance consists in unlawfully doing an act, or omitting to perforin a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, oflfends decency, or in any way renders other persons insecure in life or in the use of property.^ lA statutory definition, see Everett v. Paschall, 61 \Yash. 47, 111 Tac. 879, Ann. Cas. 1912, B. 1128. Under this statute a private sanitarium for the treatment of tuberculosis patients in a residential section of a city is a nuisance. Everett V. Paschall, 61 Wash. 47, 111 Pac. 879. Ann. Cas. 1912, B. 1128; Shepard v. Seattle, 59 Wash. 363, 109 Pac. 1067. Dense smok« only becomes a nuisance when it permeates the air surrounding people and invades their residences and places of occupation. State V. Railway, 114 Minn. 122, 130 N. W. 545, Ann. Cas. 1912, B. 1030. Sec. 2143. There must be actual injury — More than mere ten- dency. Nuisance is a question of degree, depending upon varymg circumstances. There must be more than a tendency to injure; there must be something appreciable, tangible, actual, measur- able. In all cases in determining whether tlie injury cliarged comes within these general terms, resort should be had to sound common sense. Each case must be judged by itself, liegard must be had for the notions of comfort and convenience iIity of the employment of his own hands, and the control and direction 1942 INSTRUCTIONS TO JURY. of the work in conformity with the terms of the contract. If the necessary or probable effect of the performance of the work would be to injure third persons, or create a nuisance, then the defend- ant is not relieved from liability, because the work was done by a contractor over which it had no control in the mode and manner of doing it. Railroad Co. v. Morey, 47 O. S. 207. The making of an excavation across a public liighway, which materially interferes with public travel, is an unlawful act, unless authorized by proper authority, and this because such excavation creates a nuisance. If the defendant caused such an excavation to be made, it can not shield itself from liability if injury resulted to persons traveling upon such highway, because they had the excavations made by independent contractors over whom they had no control, unless it caused all reasonable precautions to be taken to prevent such injury. Railroad Co. t\ Morey, supra. Sec. 2147. Responsibility of lot owner for excava4iion made in premises in front of premises by independent contractor. The rule of law is, that where the owner of a lot of land removes a section of the sidewalk along the public street in front thereof for the purpose of constructing a block of build- ings and excavates a deep hole for the purpose of building vaults and areas under the sidewalk to connect with the base- ments of Ids buildings, and to be used in connection therewith, and while such vaults or areas are in process of construction the excavation is left with insufficient guard or covering to protect pedestrians who are lawfully there, and one of the latter falls into such excavation or area and is injured, it is no defense to an action by the injured party against the owners of the lot that they had contracted with an independent contractor to build the vault and areas, and that this independent contractor had omitted to cover, guard and protect the opening. If these defendants took out and removed a section of that sidewalk to the depth of eight or nine feet for the purpose of building vaults and an area under it for their own benefit, to be used for their own building, it being of such a character as to cause an obstruction in the midst of a traveled public NUISANCE. 1943 thoroughfare or sidewalk; if they did that, and left it un- guarded and unprotected, and if they failed to use reasonable care to guard and protect it, then it would not ma»tter whether they had gone of themselves with their own shovels and their own hands to take out the dirt and make the excavation, or whether they employed another person to do it by the day, exercising supervision and control over him, or allotted the job out to another person as a wholly independent contract; it would be their work all the time; it is their excavation, done for them by somebody whom they employed to do it, and they would be responsible to a member of the public who was right- fully using this street for the purpose of public travel, if, with- out any fault upon his part, he fell into that excavation and was injured. I instruct you that the law is that it is the duty of these defendants, being the owners of the premises, and the lot belonging to them, and the work being done for their benefit exclusively, it is their duty to see that no dangerous pitfall is created in front of their premises in work of that kind. It will be important then for you to inquire whether this place was negligently treated by these defendants. In other words, did these defendants exercise that reasonable and ordinary care which men of ordinary prudence and caution are accustomed to exercise under such circumstances?^ 1 From Hawver v. Whalen, 49 0. S. 69. Blandin, J. Sec. 2148. Duty of traveler on highway — May presume that city has performed duty with reference to streets — Lights and guards in streets. The law imposes the duty of ordinary care upon plaintiff while traveling upon the public streets of the city, and that degree of care commensurate with the hazards of the highway known to him, or that would be known to liiin liad he exercised reasonable care and prudenci- under tlic circumstances. * * • And this care must be cominensuratc! witli tlic ordinary hazards of the highway and of such public streets, and such as were 1944 INSTRUCTIONS TO JUBY. incident to the construction of said street and road; and such other hazards as were known to him, or would be known to him had he exercised ordinary care and prudence. The plaintiff, acting in good faith in absence of knowledge to the contrary, is entitled to presume that the city would and did exercise reasonable care and prudence in performing its duty under the circumstances known to it, or that reasonably ought to have been known to it, in maintaining the street in reasonable con- dition and free from nuisance, so as to be reasonably safe for persons traveling upon the street, Wliile the defendant is not the insurer of the safety of the plaintiff while traveling upon the street in question, it is bound not to expose him to any hazards that reasonable care and pru- dence could prevent. To enable you to say whether the defendant performed its duty in the premises, you should determine from the evidence whether proper lights, or guards, or other proper precautions were reasonably provided to warrant and protect persons trav- eling in the street of the dangers, if any, occasioned by the opening, and its relations to the sidewalk in question. If the defendant did not so guard the opened place and the sidewalk, it can not be said to have discharged its duties the law imposes upon it. The law imposes upon the city the duty of careful supervision, control, and maintenance of the public street's, and this duty extends to sidewalks of the city, which are essentially part of the public street of the city, and that it shall cause the same to be maintained and guarded in such a manner as not to constitute a nuisance. The city can only discharge this duty by the exercise of all reasonable precautions to prevent injury to persons properly passing in the streets or on the sidewalks of the city from the injury.^ 1 Voris, J., in McDonald v. City of Akron, Summit Co. Cora. Pleaa. No exception was taken to the charge. For full discussion of the law involved in the above charge, see Dillon's Mun. Corp., sees. 996, et seq. NUISA2>fCE. 1945 Sec. 2149. Adjoining land owners — ^Rights and obligations of, to each other — To what extent lower pro- prietor may dig. Every man has the right to use his property in any way he may see fit, so long as he does not interfere with the rights of his neighbor, and the extent to which a man may dig and exca- vate upon his own ground which adjoins his neighbor's land, may be determined according to the natural lay and situation of the two pieces of land. That is to say, if the lower of two hillside-owners desires to dig upon his land, he may dig to any depth which would not disturb the upper's land as it lay naturally, without any buildings, improvements or structures. If the digging of the lower one be such as not to disturb the land above, if it had no houses upon it, then he may dig to the same extent though a house be upon the land then, and if the house tumble down and fall by reason of such digging, the lower owner is not liable if he has used his land with regard to the upper land as nature made it, not as man made it; and this he has the right to do.^ 1 Wright, J., in Commissioners v. Halm, Hamilton Com. Pleas. CHAPTER CXXIV. PARTNERSHIP. SEC. SEC. 2150. What constitutes partnership. 2155. Ostensible partner. 2151. Partnership may be inferred 2156. Right of surviving partner to from acts and conduct of wind up firm. parties. 2157. Partnership may by mutual 2152. Burden to prove partnership. consent orally modify 2153. Whether there was general partnership contract — agency between partners. Evidenced by books. 2154. Partners in one transaction. Sec. 2150. What constitutes partnership. "If the jury find that the defendants were jointly interested in the business, in which the work and labor charged in the peti- tion were performed, sharing the profits and losses between them ; that constitutes the defendants partners, and renders them liable as such for liabilities incurred on account of such business. ' '^ To constitute a partnership there must be an agreement be- tween the parties, that they will, from a certain date, share the profits and be responsible for debts and losses, and carry on the business for their mutual benefit ; and there must be an entering upon, or conducting, or doing business under such agreement.^ The best-considered and least-objectionable test of partner- ship is that as a community of interest in the profits of a business or transaction as a principal or proprietor.^ But this test is valuable as a rule chiefly because it evinces a relation between the parties, where each may reasonably be presumed to act for himself and as agent for the others, and to that extent establishes the fact that the liability was incurred on the authority of all so participating in the profits. Partici- pation in the profits is not regarded as a rule so uniform and unrelenting as to be unjustly applied. The true test of a part- nership is left to be that of the relation of the parties as prin- cipal and agent, and if you find from the evidence that the relation of principal and agent existed between the defendants, 1946 PARTNERSHIP. 1947 that the one acted in the business for and on behalf of the other, by such acts they have incurred a joint liability, and you may then find that a partnership existed between them.* 1 Warner v. Myrick, 16 Minn. 94. 2 Thompson on Trials, sec. 1133, taken from Lucas v. Cole, 57 Mo. 145. 3 Par. on Part. 71; Coll. on Part., sees. 25, 44; Story on Part., sees. 36, 38, 60; Berthold v. Goldsmith, 24 How. 536. * Harvey v. Childs, 28 0. S. 319, 321, 322. Sharing in profits, even though by way of compensation, makes one a partner. Choteau v. Raitt 20 O. 132. Sec. 2151. Partnership may be inferred from acts and con- duct of parties. There can be no partnership between parties unless there is an agreement between them constituting the relation between them into a partnership entity. The contract may be an ex- press one in writing containing all the terms and conditions thereof. Or, like other contracts which the law does not require to be in writing, a contract of partnership may be proven by circumstantial evidence, that is, by showing acts and conduct of the parties from which the fact may be inferred that the parties have agreed to become partners. It must be made to appear from such acts and conduct of the parties that there was an agreement to share the profits as well as the losses of the business enterprise, both these elements being essential to con- stitute a partnership.^ Hence if parties engage in a joint business enterprise, each putting in capital or labor or both, with an agreement to share the profits and losses as such, such relation constitutes in law a partnership, whatever the parties may call themselves.^ iBartlett v. Smith, 145 Wis. 31, 129 N. W. 782, Ann. Cas. 1912, A. 1195; Haswell v. Standring, Iowa, Ann. Cas. 1913, B. 1326. 2 Id. Sec. 2152. Burden to prove partnership. In an action for money had and received, where the plaintiff alleges a partnership as an essential fact necessary to a recovery, the burden is on him to prove the existence of the partnership * iCowart V. Fender, 137 Ga. 586, Ann. Cas. 1913. A. 932. 1948 INSTRUCTIONS TO JUEY. Sec. 2153. Whether there was a general agency between partners. "The jury are to determine from the evidence in the case when the partnership commenced. If it was a general part- nership formed generally for the purpose of dealing in cattle, and each was authorized to act for the firm, then the act of one would be the act of all, for each acts as the agent of the other. But if the jury should find that it was limited in its scope and operation, and was to take effect at the time only of the election of each partner in every particular adventure or purchase, then the partnership could not be held until the property became the general property of all."^ 1 From Valentine v. Hickle, 39 O. S. 19. "It must be shown by the plaintifiF that the cattle were bought by a member of the firm as a partner, and therefore as the agent of the firm, which gave them an immediate vested interest at the time of the purchase, so that they would have called upon him for the profits and charged him with the losses in any sale that he might have individually made to otliers." Valentine r. Hickle, supra. Sec. 2154. Partners in one transaction. "If the jury find that the defendants had any arrangement for shipping cattle, by which it was agreed that either of them might buy stock on his own responsibility ; and upon its deliv- ery for shipment at said place the others might take an interest in any stock so purchased and delivered, if upon examination of it they tliouglit it suitable to ship or not purchased too high ; or by which, if they purchased stock when all together, it was to be shipped on joint account ; or if, after looking at or agree- ing to take an interest in stock purchased by any one of them before delivered at said place, it was to be shipped on joint account and the parties to share in the profits and losses, such facts or agreements did not constitute them general partners, but only partners in each transaction."^ iFrom Valentine v. Hickle, 39 0. S. 19; Bank v. Sawyer, 38 0. S. 339; Peterson v. Roach, 32 O. S. 374. Joint purchasers of land to be disposed of for joint profits are partners, 40 O. S. 233. PABTNERSHIP. ly-i'J Sec. 2155. Ostensible partner. You are instructed that a person, even though he has no interest in the business but who allows his name to be continued as an ostensible member of the firm, may be presumed to give credit to the business, and will to the extent that third persons are induced to trust the firm on the faith of his being a member, he will as to such third persons be estopped from denying that he is a member of the firm, and he will be held by the use of his name to have represented that he was one of the firm, and will be so held to be a member.^ But to hold one who has so allowed his name to be connected with the firm of which ho is not a member, it must appear that the creditor relied on sucli conduct, and dealt with the firm on the faith of such party being a member.- 1 Speer v. Bishop, 24 0. S. 598; Story on Part., sec. 64; Jenkins t'. Crane, 54 Wis. 253. 2 Cook V. P. S. Co., 36 O. S. 135. Sec. 2156. Right of surviving" partner to wind up firm. Gentlemen of the jury, it is the right and duty of the sur- viving partner to wind up a firm by the collection of assets, selling property on hand, paying debts, and striking balances. He can sue the estate of his deceased partner for any amount he finds due to him on such settlement. The burden is on him to show to you that the balance he claims is the correct amount. To determine this requires a knowledge of the agreement of division of profits or losses. You will have to determine this agreement. ^ The rules governing this question are that the partnership articles, if the firm continues longer than the time limited in the articles, are presumed to fix the terms of the continuation of the firm, just as much as those of the original firm.^ 1 Clement Bates, J., in Burgoyne, Admr., v. Moore, 51 O. S. 026. .Tudp- ments aflBrmed. 1950 INSTRUCTIONS TO JURY. Sec. 2157. Partners may by mutual consent orally modify partnership contract — Evidenced by books. Written contracts may be changed by later oral contracts; and on this principle the partners may by mutual consent alter any part of the partnership articles. And this may be done by unanimous assent without spoken words. Hence the books of the firm showing any different arrangement of division of profits and losses, or in any way inconsistent with the articles, the books will control the articles. That is, the agreement of partnership may vary at different intervals. The articles settle what it was on the first day, and presumably it continues the same as then unless tlie books or proved agreement have changed the articles. The books of a firm are presumed to be the act of all the partners where all had access to them. Whether the plaintiff saw them is of no consequence, since he is not com- plaining of them. ]\I. is bound by the books because they were made under his control or direction. After the death of M. the subsequent entries do not bind his estate. From that time on entries are tTie entries of Mr. A. alone, and are his private accounts, not binding upon M. except so far as proved by other testimony than themselves. And if at different periods the entries in the partnership books show a change in the propor- tion of the profits or losses which each partner was to have, such entries will determine each one's proportion." "2. If in the several balancing of said books and rendering of statements copied therefrom, the bad, delinquent, and suspended accounts appear as a part of the assets of the firm, then the said defendant is not exempt from making good M.'s share of those accounts by reason of this statement and balancing of the books." "3. If the agreement and the books show an understanding between the parties as to their rights in the business, the jury are to carry that agreement out, and statements by counsel as to the consequences upon either can not be considered by them, as no such questions are involved, nor is there any evidence upon the subject."^ 1 Clement L. Bates, J., in Burgoyne, Admr., v. Moore, rA 0. S. 626. CHAPTER CXXV. PERJURY. SEC. SEC. 2158. Defined — the statute. 2162. Statements believed to be true. 2159. Materiality of statement. 2163. More than one witness re- 2160. Willfully and corruptly — quired as proof — Corro- Meaning of. boration. 2161. Oath to be lawfully admin- istered. Sec. 2158. Defined — The statute. Whoever, either verbally or in writing, on oath lawfully ad- ministered, willfully and corruptly states a falsehood as to any material matter, in a proceeding before any court, tribunal, or officer created by law, or in any matter in relation to which an oath is authorized by law is guilty of perjury.^ 1 Code, sec. 12842. Sec. 2159. Materiality of statement. To constitute perjury the statute requires that the fact or facts sworn to if false shall be a material matter, and it is important, therefore, that you understand what is meant by material matter. The false swearing may be to the fact which is immediately in issue, or to any material circumstance which legitimately tends to prove or disprove sucli fact; or to any fdrcumstance which has the effect to strengthen and corroborate the testimony upon the main fact, or which affects the credit of the witnesses giving testimony.' It is sufficient if it is iiui- terial to any inquiry or question arising upon the iTial, such as, if true, might properly influence the court in any matter affect- ing the rights of the parties. It must tend to directly or cir- 1951 1952 INSTRUCTIONS TO JURY. cumstantially affect the probability or improbability of any inquiry to be determined. - 1 Dilcher v. State, 39 0. S. 133. A witness may be guilty of perjury in respect to false swearing concerning a mere circumstance, 3 Russell on Crimes, 121. False testimony which only serves to explain tlie knowledge of the witness. Bishop's Cr. Law, sees. 1034, 1037. 2 Com. V. Grant, 116 Mass. 17; Jacobs v. State, 4 Am. Cr. 465; Hawley's Cr. Law, 247; Clark's Cr. Law, 334. SuflBcient if material to a collateral inquiry: State v. Shupe, 16 la. 36. Sec. 2160. Willfully and corruptly — Meaning of. Before you can find the defendant guilty you must be satis- fied beyond a reasonable doubt that he willfully and corruptly falsely swore to the matters charged. It must appear that the false oath, if it be false, was taken with some degree of delibera- tion, or that it was taken without any knowledge. By willfully and corruptly is meant that the defendant has intentionally sworn to a falsehood. If the jury find that the testimony was false, still you must be satisfied beyond a reasonable doubt that the defendant knew it to be false, or that he did not have any knowledge on the subject, or that he had good reason to believe it to be false. ^ If you find that the intention to swear falsely did not exist, or that he believed that he was telling the truth, and you find that such belief was an honest belief, and he had reasonable grounds for his belief, then you must acquit the defendant.^ Or if you find that the testimony was inadvertently given, or under a mistaken knowledge of the facts, the defendant is not guilty.^ 1 Hawley's Cr. Law. 249 ; Clark's Cr. Law. 332. 2 36 N. Y. 434; Silner n. State, 17 O. 36.5, 22 O. S. 477. 3 Hawley's Cr. Law, 249. Sec. 2161. Oath to be lawfully administered. Before you can find the defendant guilty of the crime of perjury you must be satisfied beyond a reasonable doubt that the oath was administered to him in a lawful manner, and by PERJURY. 1953 some lawfully authorized officer, and that the oath must be one that is required by law. If the officer administering the oath is not authorized to administer the oath, the oath is not lawfully administered, and perjury can not be predicated thereon ;^ and if the officer administers an oath not warranted by law he acts not as an officer, and false swearing in such case would not be perjury.2 1 State V. Jackson, 36 O. S. 281. 2 Willis V. Patterson, Tapp. 324 ; Beecher v. Anderson, 45 Mich. .')43 ; People V. Garge, 26 Mich. 30. Sec. 2162. Statements believed to be true. You are instructed that false swearing under an honest belief that statements are true is not perjury, still the jury are to determine from all the evidence in the case whether such honest belief existed ; and if the jury believe from the evidence, beyond a reasonable doubt, that the defendant swore falsely as charged, and that he had no reasonable grounds for believing his state- ments to be true, and did not honestly and in good faith believe them to be true, then he is guilty of perjury. If the jury find that the defendant testifies as stated in the indictment, and that his testimony was false, still if you have a reasonable doubt whether the defendant knowingly and will- fully testified falsely in giving such testimony, the jury sliould find the defendant not guilty.' 1 Nye, J., in State v. Berk, Summit Co. Com. Pleas. Aflirmed by circuit and supreme courts. Sec. 2163. More than one witness required as proof — Corrob- oration. You are instructed that the fact that the defendant has sworn falsely can not be established by the testimony of one witness, that the law regards the oath of Hie defendant as the tcstiinoiiy of one credible witness in his favor, and sufficient to eomiler- vail the testimony of one witness swearing positively in contra- diction of his oath, so that the testimony of the defendant and 1954 nsrsTBucTioNs to jury. the one witness against him would, if the jury regard the de- fendant as a credible witness, leave the evidence evenly balanced ; and before the defendant can be convicted the state must fur- nish corroborative evidence of more than the one witness, L. D., or the testimony of one witness and other proofs corroborating such witness. The corroborative evidence need not be of sufiBcient force to equal the positive testimony of another witness, or such as would require the jury to convict in a case in which a single witness is sufficient, but that it must be such as gives a pre- ponderance of the evidence in favor of the state. In considera- tion of the evidence the jury should keep this rule in view in determining whether the false swearing has been proven, and if the state has failed to prove the false swearing beyond a rea- sonable doubt, the defendant should be acquitted.^ 1 Approved in Crusen t>. State, 10 Ohio, 259. CHAPTER CXXVI. POCKET-PICKING. SEC. SEC. 2164. Instructions in charge of 1. The charge. pocket-picking. 2. The statute. 1. The indictment. 3. Conspiracy to commit 2. Ihe statute. crime of pocket-picking 3. Essential elements. essential. 4. To steal and take, etc 4. Proof of conspiracy — By 5. Intent — Proof. circumstances. 6. Anything of value. 2166. Possession of property rccent- 2165. Pocket-picking — Aiding and ly stolen in crime of abetting. pocket-picking. Sec. 2164. Instructions in charge of pocket-pickingf. 1. The indictment. 2. The statute. 3. Essential elements. 4. To steal and take, etc. 5. Intent — Proof. 6. Anything of value. 1. The indictment. The indictment in this case charges that the defendant did on or about the day of , 19 — , in the county of Franklin, and state of Ohio, [read the indict- ment]. 2. The statute. The jury is instructed concerning the law of this state as to the crime of "pocket-picking." The statute provides that: "Whoever otherwise than by force and violence, or by putting in fear, shall steal and take from the person of another anything of value, shall be deemed guilty of pocket-picking." 3. Essential elements. The essential elements of the crime charged, the existence of which you must find beyond a reason- able doubt before you can find the defendant guilty of the crime of pocket-picking, are that on or about the date charged 1055 1956 INSTRUCTIONS TO JURY. in the indictment, without using any force and violence, and without in any manner putting in fear the person from whom the property is alleged to have been taken, the defendant did steal and take from such person of in this ease, anything of value. 4. To steal and take, etc. By the terms steal and take from the person of another, anything of value, is meant that the de- fendant did feloniously steal and take the property charged by the indictment to have been taken from the person of with the intention of wrongfully depriving the said of the said property, and of converting the same to his, the de- fendant's, own use. 5. Intent — Proof. You are instructed that the intent to steal and take from the person of the property alleged to liave been taken, does not have to be proved by direct evi- dence of an intent actually expressed by the defendant, but the intent to so steal and take the property may be presumed from a wrongful act intentionally done. Wlien an act forbidden by law is proved to have been know- ingly done, no further proof is needed on the part of the state to obtain a conviction, as the law in such case pnma facie pre- sumes the criminal intent. Tf you find, therefore, that the defendant did steal and take the said property from the person of as charged in the indictment, you are then warranted in finding that it was done by the defendant with the intent to steal. 6. Anything of value. By the term anything of value is meant money, goods and chattels. Before you can find the defendant guilty of the crime of pocket-picking as charged, you must find that [she] [he] did steal and take from the person of , in the manner and form as charged, something of value, as that term has been explained to you. Sec. 2165. Pocket-picking— Aiding and abetting. 1. The charge. 2. The statute. POCKET-PICKINQ. 1957 3. Conspiracy to conwiit crime of pocket-picking essential. 4. Proof of conspiracy. 1. The charge. The defendant, , is charged in the in- dictment with aiding and abetting in the commission of the crime of pocket-picking alleged to have been committed by her on , 19 — . 2. The statute. The statute in Ohio provides that: "Who- ever aids, abets, or procures another to commit any offense, may be prosecuted and punished as if he were the principal offender. ' ' Before you can find the defendant guilty of the crime charged against him you must first find beyond a reasonable doubt that the said did on or about the day of , 19 — , without the use of any force or violence and without putting the said in fear, steal and take from the person of something of value. If 3^ou find that did comnait the crime of pocket-pick- ing, then it will become your duty to consider the charge made against the defendant that he aided and abetted the said in the commission of said crime of pocket-picking, or procured her to commit the same. 3. Conspiracy to commit crime of pocket-picking essential. Before you can find the defendant guilty of tlie crime of aiding and abetting in the commission of tlie crime of pocket- picking charged in the indictment, you must first find that he entered into a conspiracy with the said to comniit tlie crime of pocket-picking. To render an accused person who simply gives aid and en- couragement, but who does not take actual part in the criminal act, responsible and guilty, it is not necessary that he sliould have been strictly, actually, and immediately present whiMi and where the act of picking the pocket of the said by the said , and when she stole and took the property from him, the said in the manner as hereinbefore explained to you. Tf the defendant was sufficiently near to give aid and encour- agement and help to the said , tliat was enough. But 1958 INSTRUCTIONS TO JURY. his mere presence at the commission of the crime, or so near that he could give aid and support in the commission thereof, was not alone sufficient to make him an aider and abettor. To warrant you in finding that the defendant aided and abetted the commission of the crime of pocket-picking by the said , if you so find the fact to be, you must find that he purposely incited and encouraged the said in the act of taking or stealing the property from the person of the said , if you find that she did so take it or that he did some overt act himself in connection therewith, with a view to that result, and in some way contributed thereto. One who, not being actually present, keeps watch, or is bo near to where the crime is committed as to be able to render assistance, or to contribute to the production of the act will, in law, be considered an aider and abettor. I instruct you, however, gentlemen of the jury, that the crime of pocket-picking is complete when the person committing the same has, without force or violence, or without putting in fear the person from wliom the property is stolen and taken, has actuaflly so stolen and feloniously taken the property from such person, and that no one can be held as an aider and abettor of the crime of pocket-picking unless he is actually present and aids and abets by encouragement, or by some overt act, either before or at the time of the commission of the act. You are instructed that a person can not be held responsible as an aider and abettor of the crime of pocket-picking for the mere rendition of aid and assistance to one who has committed the crime, immediately thereafter, unless such person so ren- dering such assistance to the one who committed the crime has previously entered into a conspiracy with the person so com- mitting the crime, aiding and encouraging him to commit it and agreeing to aid and assist such person to successfully carry it out by getting away with the property after it has been feloniously taken from the person of another. If you entertain a reasonable doubt whether the defendant did enter into a conspiracy with the said , by which he POCKET-PICKING. 1959 aided and encouraged her to commit the crime, and whether he did agree to assist her in making her escape with the money after she had stolen or taken it from the person of another; and if the testimony does not tend to support the claim of a conspiracy, then I charge you that the mere fact that he did offer and render her some assistance after she had stolen and feloniously taken the money from the person of , if you find that fact to be, would not render the defendant guilty of aiding and abetting the said as charged in the indict- ment. If you find that no such previous conspiracy was entered into by the defendant and , and that the defendant had no knowledge that she intended to commit or had committed the crime of pocket-picking, if you find that she did commit the crime, but that the defendant did assist the said in mak- ing her escape from the said , if you so find the fact to be, then I charge you that the law is that the defendant under such circumstances would not be liable as an aider and abettor thereto, and it would be your duty to acquit him. There is no such crime in Ohio as a mere accessory after the fact to any crime; there is no liability under the statute of Ohio touching an aider and abettor for an act committed by a person in giving aid to one who has committed the crime of pocket-picking, who by trick or artifice feloniously takes prop- erty from the person of another. And if you should find that the defendant without previous knowledge and conspiracy, merely aided her to escape from the said , then you must acquit the defendant. On the other hand, if you are satisfied beyond a reasonable doubt, that the defendant and did enter into a previous conspiracy to commit the crime of pocket-picking, and though the defendant was not present at the time the property was actually taken from the person, if such the fact yoii find to be, but that he was so near that he was able to render the said assistance, and did so render her assistance, thus enabling her to escape and get away from the said , then your verdict should be one of conviction. 1960 INSTRUCTIONS TO JURY. 4. Proof of coiispira'Cy — By circumstances. You are in- structed, gentlemen, that the law does not require that a con- spiracy shall be proved by direct testimony, but the same may be, and is generally, established by circumstantial evidence. It is not necessary, for the purpose of showing the existence of a conspiracy, that the state should prove that the defendant and came together and actually agreed upon a common design or purpose. It is sufficient if such design and purpose is shown to you beyond a reasonable doubt by circumstantial evidence. If, after a candid consideration of all the evidence as to the conduct and acts of , and if from declarations of the defendant and , you are satisfied beyond a reasonable doubt, that they were actually pursuing, in concert, the unlaw- ful object stated in the indictment, whether by common or different means, but all leading to the unlawful result, then you are justified in finding the defendant guilty as charged, pro- viding you find that the crime was committed as alleged, and that the defendant participated in it as alleged in the indict- ment. You are enjoined to consider well and carefully the evidence in connection with the law as given you by the court. If you are of the opinion, beyond a reasonable doubt, that there was a conspiracy as charged herein, and you find all the other facts in accordance with these instructions, your duty is plain. If, after a careful and impartial consideration of all the evi- dence, yoiT can not feel that you have an abiding conviction of the truth of the existence of a conspiracy and of all the essential elements to warrant a conviction of guilt, you should render a verdict of acquittal. 1 Stnte V. W ., Fraiiklin Co. Com. Pleas, Kinkead. J. Sec. 2166. Possession of property recently stolen in the crime of pocket-picking. You are instructed that the unexplained possession of prop- erty which has been recently stolen, constitutes in law prima POCKET-PICKING. 1961 facie evidence of larceny, and may be sufficient to warrant the jury in inferring that a person charged with the crime merely of larceny is guilty thereof. In this case, gentlemen, the defendant stands charged with the crime of pocket-picking, that is, he is charged in the indict- ment with having taken the watch in question, without force and violence, from the person of one and without putting gai(j in fear ; that is, that he feloniously took the watch from the person of stealthily ; the crime of pocket-pick- ing, therefore includes the act and crime of larceny, with the act of stealthily taking property from the person of another. If you find, therefore, that the said had his watch feloniously stolen from his person, by stealth, and if you further find that the defendant had possession of the watch soon after it w^as stolen, and if you are not satisfied beyond a reasonable doubt that he has not given a satisfactory explana- tion of his possession of the watch, if you find that he had pos- session of it; and if you believe beyond a reasonable doubt that his possession is not consistent with his innocence, then and in that event you are instructed, that while such possession does not raise a presumption of law that he is guilty of the crime of pocket-picking as charged in the indictment, yet I charge you that such possession not satisfactorily explained, is competent evidence to be considered by you, in connection with all the other facts and circumstances, as shov/n in the evidence as bear- ing upon the guilt or innocence of the defendant, rnd you may draw such inference therefrom as you deem warranted iind proper. If the possession of the watch by the defendant is satisfactorily explained and accounted for by him, then such fact of explana- tion should be considered by you along with all the other facts and circumstances disclosed by the evidence touching the guilt or innocence of the defendant.^ lAIethard v. State, 19 0. S. 363, 3 C. C. 551, 17 C. C. 486. CHAPTER CXXVII. RAILROADS— AS CARRIERS OF PASSENGERS. SEC. 2167. Relation of carrier and pas- senger exists when. 2168. Carrier to exercise high d^ree of care. 2169. Passenger must observe care for his own safety. 2170. Kot bound to carry passengers on freight train — Duty of company and pas- senger when so carried. 2171. Duty to furnish safe passage going to and from trains. 2172. When failure to carry pas- senger safely is shown, burden cast upon carrier. 2173. Ticket agents, duty and au- thority — Reliance upon by passenger. 2174. Duty of carrier as to putting ofT passenger at destina- tion not stopping place for train — Authority of local ticket agent to bind company. 2175. Riglit to eject persons for failure to pay fare. 2176. Right to eject passengers for failure to pay fare — Lia- bility if unnecessary force used — Drunken or boisterous passenger. 2177. Wrongful ejection of pas- senger through error of judgment. 2178. Measure of damages for wrongful ejection of pas- senger. 2179. Duty to provide safe platform. 2180. Duty of carrier to passenger boarding train. 1962 SEC. 2181. Must protect passenger from violence. 2182. Not liable for assault not committed while in pros- ecution of master's busi- ness. 2183. Duty to stop trains at sta- tions, and of passengers to get off. 2184. Duty to passenger falling from train. 2185. Duty as to stopping train for passengers to alight. 2186. Contributory negligence of passenger. 2187. Contributory negligence of passenger — Another form. 2188. Right of passenger to remain in waiting-room a rea- sonable time. 2189. Negligence of sleeping car employee — Railroad com- pany presumed liable for injury — Burden of proof. 2190. Injury to conductor riding on train otlier than his own with consent of conduc- tor in sliarge. 2191. Liability for injury to pas- senger while assisting in caring for sick pas- senger — Whether plain- tiff was directed or per- mitted to assist in caring for passenger — Duty of company towards sick passenger. 1 See addi- tional headings in text.] RAILROADS — AS CARRIERS OF PASSENGERS. 1963 Sec. 2167. Relation of caxrier and passenger exists, when. The jury is instructed that the responsibility of the carrier towards the passenger begins when he presents himself for transportation ; it is not necessary that the passenger shall have actually purchased a ticket to create the relationship; the person intending to become a passenger becomes one, and en- titled to all the rights as such, when he approaches the place of reception for that purpose; and if you find from the evi- dence that the plaintiff approached the depot and informed the ticket agent of his intention and desire to become a passenger, and the station agent directed him about the trains, you may then find that the relation of passenger and carrier begins.^ 1 Allender t\ R. R. Co., 37 la. 270; Cooley on Torts, 770 (644). Purchase of ticket or payment of fare not netessary to create relation. Wood's Ry. Law, p. 1205. Sec. 2168. Carrier to exercise high degree of care. The jury are instructed that railroads are public carriers, and that it is their duty as common carriers of passengers to use the highest degree of care towards their passengers; they must do all that human care, vigilance, and foresight can do under the circumstances, and in view of the character of the mode of conveyance adopted, reasonably to guard against acci- dents and consequential injuries, and if they neglect to do so, they are to be held strictly responsible for all eonsoquencos which flow from such neglect.^ "The company is not an insurer of the absolute safety of the passengers as it is of goods which it undertakes to carry, but it is bound to exercise the highest degree of care to secure the safety of the passenger, and is responsible for the slightest neg- lect resulting in injury to the passenger; and tliis cart' ;ii)i)lit's to the safe and proper construction and equipment of the road, the employment of skillful and prudent operatives, and the faithful performance by them of their respective duties. "- iTuller V. Talbot, 23 111. 358; Railroad v. Manaon, 30 0. S. 451. 2 Ex. R. R. Co. V. DickerHon, 50 Ind. 321. 1964 INSTRUCTIONS TO JURY. Sec. 2169. Passenger must observe care for his own safely. The jury is instructed that the law makes it the duty of a passenger, while traveling on the train, to exercise ordinary care and caution to avoid the injuries incident to that mode of travel. In legal contemplation he expects to take, and does take upon himself, the hazards of such danger as may occur to him without any want of care or diligence on the part of the company and its operatives.^ 1 From Ohio & M. Ey. v. Dickerson, 59 Ind. 321. Sec. 2170. Not bound to carry passengers on freight trains — Duty of company and passenger when so carried. A railroad company is under no legal obligation to transport passengers on its freight trains. The company confines its car- riage of passengers to regular passenger trains, and its carriage of goods to its freight trains. But when the company assumes to carry passengers upon its freight trains, it is not bound to furnish to the passengers the same comforts and conveniences which are enjoyed on a regular passenger coach; but whether a railroad company undertakes to convey its passengers on a freight or passenger train, in a caboose or well-cushioned chairs, its duty is so to run and manage the train that passengers shall not, by its own carelessness, be killed or injured. On the other hand, he is presumed to know the manner in which such tvains are ordinarily operated, and to assume any additional risk, aside from the negligence of the company, to which he may be ex- posed in consequence of his riding on a freight train. ^ iFrom O. & M. R. R. Co. v. Dickerson. 59 Ind. 322, 56 Ind. 511, 26 111. 373, 53 111. 397, 58 Me. 187. 39 N. Y. 227. Sec. 2171. Duty to furnish safe passage going to and from trains. It was the duty of the defendant company, as a common carrier of passengers, to furnish a reasonably safe passage for its passengers going to and from its trains. And the law im- poses an obligation on the part of the railroad company to take RAILROADS — AS CARRIERS OF PASSENGERS. 1965 reasonable care that a person holding the relation of passenger going to, or coming from, its trains shall, while thus on its premises, be exposed to no unnecessary danger, or one of wliich it is aware, and requires it to provide for such passengers a reasonably safe passage to and from said trains. If you find from the evidence that the plaintiff, at the time of the injury, was returning from a train of the defendant's cars, where she had lawfully ridden, she would be entitled to such protection from injury while on the railroad company's platform as men of ordinary care and prudence would be accustomed to give persons under like or similar circumstances.^ 1 Xyc, J., in Clark v. X. Y., P. & 0. R. R. Co., Medina county. A common carrier is liable for any injury resulting from tlic sllfriitest motion of his vehicle during the entrance or exit of a passenger. Mulhado v. Brooklyn, etc., R. R. Co., 30 N. Y. 370; Sherman & Redfield on Negligence, sec. 508. Sec. 2172. When failure to carry passenger safely is shown, burden cast upon carrier. "It being admitted that the defendant is a carrier of passen- gers, that, on the occasion mentioned in the petition, the plain- tiff was a passenger on defendant's train, having paid his fare, it was the duty of defendant to carry him safely to the point of his destination without injury; and when it is shown that the defendant failed to carry the plaintiff safely to the place of his destination, this failure puts the defendant, prima facie, in the wrong, and the burden of proof devolves upon it to show that the injury was the result of a pure accident, and that it could not have been prevented by the exercise of the utmost care and skill which prudent men are accustomed to employ under similar circumstances. ' '^ 1 From Railroad Co. v. Mowery, 36 0. 8. 418. Sec. 2173. Ticket agent's duty and authority — Reliance upon by passenger. The jury is instructed that it is llic duty of a ticket agent of a railroad, and it is within the scope of his authority, to give passengers correet information with regard to tlicir tickets, and 1966 INSTRUCTIONS TO JURY. to provide them, upon payment of the fare, with proper tickets. A passenger is justified and has the right to rely upon informa- tion given him by the ticket agent. Such passenger is not con- cerned with the management of the affairs of railroad companies, and is not presumed to know the rules and regulations adopted by the companies for the guidance of such agents; nor is a passenger presumed to know the limitations of the authority of the agents. On the contrary, a passenger has the right to rely upon the statements and assurances of a ticket agent as to the sufficiency of a ticket furnished him as evidence of his rights as a passenger, the carrier being responsible for the errors and omissions of an agent resulting in injury to the passenger.^ So, therefore, etc. 1 Smith V. Railroad, 88 S. C. 421, 70 S. E. 1057, 34 L. R. A. (N.S.) 708, Am. Ann. Cas. 1912, C. p. 730. Sec. 2174. Duty of carrier as to putting off passenger at des- tination not stopping place for train — Au- thority of local ticket agent to bind company. The jury is instructed that if a traveler, in the absence of an agreement or arrangement, or without acting upon informa- tion furnished by some authorized agent of the company, takes passage upon a train that is scheduled not to stop at the station to which he desires to go, he can not recover damages in an action if it fails to stop at such station, because, unless acting under an agreement or arrangement or upon information furn- ished by the company, the traveler must inform himself of the arrival and departure of trains and the places at which they will and will not stop. The jury is instructed that an agent of a railroad company in charge of one of its passenger stations at which tickets for transportation of passengers are sold has authority on behalf of the company to agree with and furnish information to per- sons w^ho desire to become passengers, that a train not scheduled to stop at a designated station will stop there for tlie purpose of permitting them to get on or off, the company, will be bound RAILROADS — AS CAJIRIERS OF PASSENGERS. 1967 by his representations, unless it is shown that the person with w^hom he made the agreement or to whom he gave the informa- tion knew that it was not within the power or authority of the agent to make the agreement or give the information, or unless the ticket on its face furnished advice sufficient to put a reason- ably careful and prudent person upon notice that the informa- tion furnished or the agreement made by the agent was incor- rect or in excess of his authority.* But if the agent of the railroad company has implied author- ity to act for it, and does make an agreement or representation in violation of its rules, or in disobedience of its orders, or fails or neglects to procure the necessary authority to do what he agreed or represented should be done, it is the fault of the agent and not the passenger, and the company as between the passenger and it must suffer the consequences of its agent's negligence or want of power.^ If the jury find, therefore, etc. 1 L. & K Ry. V. Scott. 141 Ky. 538, 133 S. W. 800, Am. Ann. Cas. 1912, C. 2/(f. Penn. R. Co. v. Reynolds, .55 0. S. 370, 60 Am. St. 706. Sec. 2175. Rig-ht to eject persons for failure to pay fare. The jury is instructed that a common carrier has the un- doubted right to eject and expel any persons from its cars who refuse to pay the legal fare. Necessarily that inherent power is invested in the conductor employed by the company and placed by it in charge of the train or car.^ 1 Cinti. Northern Tr. v. Rosnaglo, 84 0. S. 639, Am. Ann. Cas. 1912, C. 639, Sec. 2176. Right to eject passenger for failure to pay fare — Liability if unnecessary force used — Drunken or boisterous passenger. "The jury are instructed that if they believe from llie testi- mony that the plaintiff did not pay, or offer to pay the con- ductor in charge of the train, liis fare from C. to W.. or i)lace of destination, and refused to pay the same on being recjuested so to do, then the conductor was justified in putting plaintiff 1968 INSTRUCTIONS TO JURY. off the train, and using only the necessary force to do so, at some regular station, or near some dwelling-house, as the con- ductor should elect. Yet if the jury further believe from the testimony that the conductor and others, agents and servants of the defendant, acting under orders from the conductor, forc- ibly put plaintiff off from the train, and in so doing used un- necessary^ force, and unnecessarily beat, kicked, and bruised plaintiff while he was so on the train, then the jury will find for the plaintiff and assess his damages at such sum as they believe from the evidence to be a just compensation for the injuries sustained. * * *"^ The defendant company had a right to prescribe rates for prepurchased tickets, and car rates when tickets were not pur- chased, for distances less than eight miles, and more than six miles, provided that neither of such rates exceeded the maximum rate allowed by law. Where a passenger enters the cars with- out havinc^ purchased a ticket, and when payment of the fare is demanded, is persistently refused, after giving such person a reasonable time to determine whether or not he will pay, such person has no right to remain on the train, or to claim the rights of a passenger, but may be treated as a trespasser. The conductor may lawfully eject such a person, provided he uses no unreasonable violence and does not expel him at a place where he Avould be exposed to serious injury or danger.^ It is not only the right, but the duty of a conductor to expel from a train a drunken, unruly, boisterous passenger, but when such a person endangers by his acts the lives of other passen- gers, it is the duty of the conductor to remove such passenger to protect others from violence and danger. This right must be reasonably exercised, and not so as to inflict wanton or unnecessarj^ injury upon the offending passenger, nor so as to needlessly place him in circumstances of unusual peril.^ 1 From Perkins v. K. E. Co., 55 Mo. 201, 208. Company may make rule requiring conductor to eject passenger for non-production of ticket, 26 0. S. 580, 29 O. S. 219, 56 N. Y. 296. For full discussion see Kinkead's Pig., sees. 230, 231. Unreasonable violence must not be used, or he must not be ejected at a place of danger, 39 0. S. 453. RAILROADS — AS CARRIERS OF PASSENGERS. 1969 2 Railroad v. Skillman, 39 0. S. 444. 3 Railway v. Valleley, 32 O. S. 345. Common carrier may refuse, without liability, to carry a person intoxicated. Pittsburg, etc., R. R. Co. V. Vandyne, 57 Ind. 576. Neither is he bound to carry anyone whose conduct is riotous or boisterous. Wood on Railroads, sec. 297. Sec. 2177. Wrongful ejection of passenger through error of judgment. The jury is instructed that if a common carrier wrongfully expels one who is entitled to the rights of a passenger, it is liable even though such expulsion is done through an error of judgment on the part of the conductor in charge of the train or car. If a passenger tenders to the conductor a genuine coin of the United States, not so worn, defaced, or mutilated hut that its mint marks are plainly discernible and not appreciably dimin- ished in weight, and such tender is refused and the passenger ejected on refusal to pay in other money, such passenger is entitled to recover damages against the company, even though the conductor in good faith believed the coin to be counterfeit, or not a sufficient coin.^ So if the jury find, etc. iCinti. Northern Tr. Co. v. Rosnagle, 84 0. S. 310, Am. Ann. Caa. 1912, C. p. 639, note. Sec. 2178. Measure of damages for wrongful ejection of pas- senger. The measure of damages to which plaintiff is entitled in case the jury find in his favor is compensatory in character ; that is, such compensation as will be a reasonable redress for liis injury. If it should appear from the evidence that the conductor used more force than was reasonably necessary to require the plain- tiff to leave the train, or if the conduct, manner or laiif?uage of the conductor was insulting', or abusive, or vioh'iit or threat- ening, or if his behavior manufested a wanton and reckless 1970 INSTRUCTIONS TO JURY. disregard of the rights of the plantiff, the latter will then be entitled to punitive damages, in addition to compensatory dam- ages.^ 1 L. & N. E. R. Co. V. Scott, 141 Ky. 538, 133 S. W. 800, Am. Ann. Cas. 1912, C. 547. Sec. 2179. Duty to provide safe platform. "It is the duty of the defendant to have its platform reason- ably suflBcient and safe in all respects, to be used by such per- sons as may have lawful occasion to use it. It is not necessary that it should be perfectly and absolutely safe; so great a degree of perfection is usually impracticable; but it must be reasonably safe and sufficient for all persons using it, who are themselves in the exercise of ordinary and reasonable care. If a barrier or guard is reasonably necessary to prevent persons, who are themselves in the exercise of ordinary and reasonable care, from falling from the platform to their injury, then a barrier should be placed upon it, or a guard should be placed to warn people of danger. Such lights as are necessary to render the use of the platform and the passage over it to the cars reasonably safe should be upon the platform, at the plat- form, at the time of the arrival of trains, and during the time the trains remain at the station. ' '^ 1 Ex Quaife v. R. R. Co., 48 Wis. 516. Sec. 2180. Duty of carrier to passenger boarding train. "It is the duty of a railroad company to use due care, not only in conveying its passengers upon their journey, but also in all preliminary matters, such as their reception into the car, and their accommodation while waiting for it; and, whether bound to render assistance in taking passengers aboard its cars or not, it is liable for the consequences of negligence in giving directions to passengers as to the mode of entering. Whether it was the duty of defendant's agent to have assisted plaintiff in getting on the car is a question for you to consider and deter- RAILROADS — AS CARRIERS OP PASSENGERS. 1971 mine from the evidence in the case; and for this purpose it is proper for you to consider the train and the car, their distance from the platform and depot, the facility with wliich access could be had, the sex, age, and inexperience of the plaintiif, if these were known to defendant's agents, and all the facts and circumstances surrounding the case. Wlien the carrier of passengers by railway does not receive passengers into the car at the platform erected for that purpose, and suffers or directs passengers to enter at out of the way places, it is its duty to use the utmost care in preventing accidents to passengers while so entering."^ 1 From Allender v. R. R. Co., 43 la. 277. As to duty to aged and infirm persons, Sher. & Red. Negligence, sec. 508, 1 How. Pr. (N.S.) 67; Wood on Railways, sec. 1363. Com- pany must stop car at platform and must furnish proper jjlatform for passengers. Sher. & Red. Negligence, sec. 510. Sec. 2181. Must protect passenger from violence. The defendant company must carry its passengers safely and properly, and the duty to so carry its passengers safely extends still further. There rests on the carrier the obligation and duty to protect its passengers from violence; if such violence can not be prevented by the highest degree of care, the carrier can not then be held responsible; if the carrier has used the care which the law requires — that is, the highest — then it is not liable. A carrier is responsible for injuries willfully or carelessly inflicted upon passengers by its servants engaged to the performance of duties within the general scope of their em- ployment, whether the particular act was or was not authorized hy the master. The defendant is not an insurer of tlie safety of its passengers against all the risks of travel, but is bound to use the highest degree of care, and when that is done, that is all that the law may exact of them.' iSee Sherlock r. Ailing, 44 Tnd. 1S4: L. & C. R. Co. r. Kelly, $12 Tnd. 372. Pome authorities seem to hold tlie carrier responsiljle for "violence and insults from whatsoever source arising." Goddard V. R. R. Co., 57 Me. 202, 2 Am. Rep. 39. 1972 INSTRUCTIONS TO JURY. Sec. 2182. Not liable for assault not committed while in the prosecution of master's business. The jury is instructed that an employer is not liable for a willful injury done by an employee, though committed while in the master's business or while in the course of the employ- ment, unless the employee's purpose was to serve his employer by his willful act. Where the employee is not acting within the course of his employment, the employer is not liable for his acts. A master holds out his agent as competent and fit to be trusted, and thereby, in effect warrants his fidelity and good conduct in all matters within the scope of his agency. But he does not and should not be held to warrant his servant's con- duct in matters outside of the scope of that agency. In other words, lie can not be held to be an insurer in matters not relat- ing to the conduct of the master's businCvSS. Hence a master is not liable for an assault by his servant upon a third person, where the act is not committed in the prosecution of the master's business. So, when there is no original liability for the act of the servant, the master does not become liable merely because he thereafter retains the servant in his employ. A master is not therefore liable for an assault not committed in the master's business merely because he retains him in his employ.^ lEveringham i;. Railroad, 148 Iowa, 662, 127 X. W. 1009. Am. Ann. Cas. 1912, C. 848. Sec. 2183. Duty of to stop its trains at stations, and of pas- sengers to g-et off. The jury is instructed that it is the duty of a railroad com- pany to stop its train at the station a reasonable length of time to afford passengers for that station an opportunity to alight in safety ; and for negligence in that respect, resulting in injury to such passenger, the company is liable. It is equally the duty of the passenger, when he knows that the train has stopped at the station where he desires to alight, to do so with reasonable promptness. The length of time the train may stop may necessarily vary with the circumstances. RAILROADS — AS CARRIERS OF PASSENGERS. 1973 It will require more time for many passengers to get off or on a train than it will a few. If the jury finds from the evidence that the train was stopped for a reasonable time to afford plaintiff an opportunity to alight in safety, the law is that those in charge of the train have the right to assume that plaintiff availed herself of the opportunity, and had performed her duty to alight with reasonable diligence; they were not, under such circumstances, required to ascertain whether plaintiff had alighted or not, and the company would not be guilty of negligence in starting the train after liaving allowed such reasonable time, unless there was something under the circumstances, and appearing in the evidence, to indicate to the agents in charge of the train or car, or cause them, in the exercise of reasonable diligence, to suspect that plaintiff had not gotten off, or was in the act of so doing, or was otherwise in a position of danger if the train should be started.^ So, therefore, if the jury find, etc. 1 Railroad v. Lampman, 18 Wyo. 106, 104 Pac. 533, Am. Ann. Cas. 1012, C. 788. Sec. 2184. Duty to passeng-er falling- from train. If a company has notice that one of its passengers has fallen from the end of its train, the duty is incumbent upon it to exer- cise due care to prevent his death or injury from a following train, and its failure thus so to do renders it liable if death is caused by a following train running over such passenger while he lay unconscious or helpless on or near the track.' The case is narrowed, then, to the question whether two facts exist. First : was the death of this young man caused liy a fall from the first train, or was it caused by the train wliicli ran over his body? If it was caused by the first trniii. or if by the fall he was put in such a condition tbat liis death im- mediately ensued, or must have ensued from tlie injury thus sustained, then the plaintiff can not recover. If you (iiid tli.il by the fall the death was not caused, and would not have ensued, but that the death was because of the train which followed, then 1974 INSTRUCTIONS TO JURY. you will proceed to try the question, what notice the railroad company had of the actual condition of that young man upon the track. Notice to the brakesman would be notice to the company. It must be actual notice to the brakesman. He must have heard from someone, or must have seen that the young man would be likely to be in the condition in which, at this point, if you reach this point in the case, you must find that he actually was upon the track. You must determine as to the sufficiency of the notice from the circumstances in the case, as to where the notice was given, under what circumstances, the rapidity with which the train was proceeding, and all those circumstances which you may find to have been presented to the brakesman, if you do find that they were presented, and then judge if, from the facts thus presented, a brakesman of ordinary, average intelligence and prudence would conclude that K. was in a condition upon the track, or so near the track as that injury would necessarily follow from a following train.^ 1 From Railroad Co. v. Kassen, 49 O. S. 230. 2Wm. H. Taft, J., in C, H & D. R. R. Co. v. Kassen, 49 O. S. 230. Notice to brakeman in such case is notice to the company. R. R. V. Ranney, 37 Ohio St. 665. 30 Ohio St. 4.51. As to duty and care in such case, see Kerwhacker v. R. R., 3 Ohio St. 172. Sec. 2185. Duty as to stopping- train for passengers to alight. (The negligence charged is that plaintiff was not allowed proper and reasonable time and opportunity to alight from the train at F. station.) If the train stopped at F. station at all, then it was the duty of the servants and agents of defendant to stop long enough to allow all passengers for that station to have a reasonable time and opportunity to alight from that train. If it did not stop at all, then plaintiff would have no right to try to get off a moving train Now, that is a question of fact for you to determine from the evidence, whether the train stopped, and whether passen- gers were allowed a reasonable time and opportunity to alight* from the train with safety. If the plaintiff has established that RAILROADS AS CARRIERS OF PASSENGERS. 1975 fact by a preponderance of the evidence, and the evidence shows that the train did stop, and if plaintiif has established by a preponderance of the evidence that he was not allowed a rea- sonable time and opportunity to alight from tliat train, he has made out one branch of the case, and, in the absence of any other testimony, is entitled to recover. If you find that plain- tiff was allowed a reasonable time and opportunity to alight safely from the train, of course that is the end of the case, and your verdict should be for the defendant without further in- quiry. But, if the evidence discloses that the train stopped and he was not allowed a reasonable time and opportunity to alight in safety, and he was thereby injured, then, in the absence of other testimony, he would be entitled to recover. If it be estab- lished, however, gentlemen, that the train did stop, it is for you to determine from the evidence what was a reasonable time and opportunity for him to safely alight. If they stopped, but did not stop a suflHcient length of time to allow plaintiff to alight from the train, and lie was thereby injured, that would be negligence on their part which would make the company liable, unless the party injured was guilty of negligence on his part.^ 1 From C, IT. V. & T. Ry. Co. v. Xewell, supreme court, No. 1.313; 12478. Price, J. A carrier must allow his passengers a reasonable time in wliicli to pet on and off the vehicle. E. Bendorf v. Brooklyn, etc., R. R., 6!) N. Y. 195; Fairmount, etc., R. R. v: Stutter, 54 Pa. St. 375. Sec. 2186. Contributory neglig'ence of passenger. "Although the defendant did not e.xercise the degree of care required of it, yet, if the plaintiff was also in fault, and that fault contributed directly to produce the injury, lie (•;m not recover. His right to recover, however, is not affected liy liis having contributed to the injury, unless he was in fault in so doing. "1 1 From Railroad Co. v. Mowery, 36 0. S. 418. 1976 INSTRUCTIONS TO JURY. Sec. 2187. Contributory negligence of passenger — Another form. You will then inquire whether or not plaintiff was guilty of any want of care, or guilty of contributory negligence, whether he contributed to his own injury by want of care. If the train stopped, they must have stopped a reasonable length of time, and if they did not stop at all, then he would have had no right to try to alight from the moving train, and if he did so, or attempted to do so, he would be guilty of con- tributory negligence, and it would preclude his recovering, and it makes no difference that he would be put to inconvenience by being carried past the station, because he was bound to exer- cise ordinary care and prudence, and it would not be ordinary care and prudence to attempt to get off from a moving train, so, if you find that he did so, he ought not to recover, because guilty of contributory negligence ; and if he passed out from the coach and upon the platform intending to alight from the train, and the ser^-ants and agents of the company did not give sufficient time for him to alight from the train, and then he attempted to alight while it was moving, in that case he would be guilty of contributory negligence which would preclude his riglit of recovery. If he passed out of the coach and upon the platform, and the train passed on before he had time to alight, it was his duty, as soon as he reasonably could, to return to the coach, and if he failed to do so, and for that reason was thrown from the train while it was in motion, he would be guilty of contributory negligence; but if he passed out of the coach and upon the platform, and the train moved on before he had a reasonable opportunity to return to the coach, and he was thrown from the train, in that case he would not be guilty of contributory negligence, and could recover from the company. It is essential to determine which side has the burden of proof as to contributory negligence. If the evidence intro- duced by him raises the presumption that he was guilty of want of care and prudence, then the burden of proof is thrown RAILROADS AS CARRIERS OF PASSENGERS. 1977 upon him. If the evidence introduced by hira does not raise such presumption, then the burden of proof is on the defendant. But, however it may be, if the evidence discloses that li.' was guilty of such want of care and prudence, that precludes his right of recovery. If you find negligence on the part of the servants and agents of the company, and that he was injured thereby, and that he was not guilty of such want of care and prudence on his part, it entitles him to recover.^ ^ From C, H. V. & T. Ry. Co. v. Xewell. supreme court, Xo. 1313 (12- 478). Price, J. If a passenger by the negligence of the company is carried beyond the station, he can recover for the inconvenience, loss of time, etc., but if he gets off while the train is moving, he does it at his own risk. JeflFersonville R. R. Co. v. Hendricks, 26 Ind. 228, 26 Ind. 459, 23 Pa. St. 147, 36 111. 467. Sec. 2188. Right of passenger to remain in waiting room a reasonable time. The jury is instructed that a railway company is not bound to furnish a lodging place for persons to lounge around or wait in for an unreasonable length of time before the arrival of a train which such person intends to take. If the evidence shows that the plaintiff could, by the exercise of reasonable means at her command, have prevented any damages to herself, and it appears that she carelessly failed to make a reasonable efPort to avail herself of such means, and that this contributed in any manner as a proximate cause to her injuries, she can not recover. A railroad company is only bound to open its depot and keep it warm for such time as is reasonably necessary to secure a traveler the right to be carried on its train. If, therefore, the evidence shows that a person goes to a depot and remains there for a longer time than is reasonably neeessnry to giv(> such person the full enjoyment of the riglit to ho carriod upon lln^ train, then the railroad company can not bo lidd lialdc, cvcii if they are made sick by remaining there.^ iBrackett v. Southern Ry.. 88 So. Car. 447, 70 S. E. 1020, Am. Ann. Cas. 1912, C. 1212, and note. 1978 INSTRUCTIONS TO JURY. Sec. 2189. Negligence of sleeping-car employee — Railroad company presumed liable for injury — urden of proof. "The burden of proof is on the plaintiff to show that he was injured by the defendant's negligence, either in not providing safe and suitable cars, or in not properly inspecting and taking care of them. A mere statement that a person was injured while riding on a railway, without any statement of the char- acter, manner, or circumstances of the injury, does not raise a presumption of negligence on the part of the railway com- pany. But if the character, manner, or circumstances of the injury are also stated, such statement may raise, on the one hand, a presumption of such negligence, or, on the other, a presumption that there was no such negligence. If the plain- tiff was in fact injured while sitting in his proper place by the falling of the upper berth upon his head, while said berth ought to have remained in place above, such fact raises a presumption in this ease of negligence, for which the defendant is liable. If you find that there was no defect in the road, or in the car, or the mechanism used, yet if, upon the evidence in this case, you find it reasonable to presume that the accident happened by reason of the upper berth not having been properly fastened in its place, or by reason of the persons having charge of the car having failed to observe that it had become loosened, if such insecure condition would have been observed by proper diligence, you have a right so to presume, and you would then find the defendant guilty of negligence. If, on the other hand, in such case you find it equally reasonable to presume that the fasten- ing of the berth was loosened by some other person, not those in the employment of the defendant, and such insecure condi- tion would not be observed by proper diligence on the part of the persons having charge of the car, you have the right so to presume, and in that case would find that the plaintiff had failed to make out a case of negligence against the defendant. The plaintiff is entitled to damages for injury traceable to the de- fendant's fault, but not for injury caused by his own act."^ iFrom Railroad Co. v. Walrath, 38 O. S. 461. RAILROADS — AS CARRIERS OP PASSENGERS. 1979 Sec. 2190. Injury to conductor riding on train other than his own with consent of conductor in charge. In Railway Company against Robert Bycraft (Supreme Court, unreported), the plaintiff was a conductor who boarded a train other than the one of which he was conductor, and, while riding thereon, was injured by a collision. The question at issue was whether he was a passenger on such train at the time of his injury, and whether he could recover for negligence of the con- ductor of such train. J. R. Johnston, J., charged the jury as matter of law : That if you find that plaintiff was injured by reason of the negli- gence and want of care on the part of the conductor of train 37, and you also find that the plaintiff, at the time he received his injury, was upon that train with the consent, permission, and knowledge of the defendant, and with the consent, per- mission, and knowledge of the conductor of this train 37, but that at that time he was in the discharge of no duty incident to his employment, and was not engaged in discharging any of his duties as a conductor upon that road, or any duty upon that train, and was merely riding from A. to his home at B., with this consent, knowledge, and permission on the part of the defendant and of the conductor, that the negligence of the conductor in charge of train 37 would be the negligence of the defendant, and would not be the negligence of a co- employee, or fellow-servant, so as to defeat a recovery in this action, provided you find the plaintiff otherwise entitled to recover. If you have found the plaintiff to have l)een llius upon this train, then it became and was the duty of the de- fendant to exercise towards him ordinary care in tbe running and operating of that train, and this would he tlic dc^'rct' of care and the degree only which was incumbent u[)oii the de- fendant by reason of tlie relation wbicb existed from tbe situa- tion of the parties, and tbe relation they sustained toward each other at that time. If the defendant failed an.I fie-I,cted io exercise that degree of care towards tbe plaintiff, and for bis safety, for such failure tbe defendant would be liable, provided 1980 INSTRUCTIONS TO JURY. the plaintiff was in the exercise of proper care on his own part, and if this conductor of train 37 failed and neglected to exer- cise towards the plaintiff that degree of care, and by reason of this failure the plaintiff was injured, the defendant would be liable therefor. "If you have found that the defendant was negligent in run- ning and operating train 37, and find that it did not exercise towards tlie plaintiff ordinary care for his safety, and that, by reason of such failure, and as a direct and proximate result thereof, the plaintiff sustained his injuries, and have also found that at the time he received his injury he was upon this train, with the knowledge, permission, and consent of the defendant and said conductor, but was discharging none cf the duties incident to his employment at that time, and discharging no duty required of him by the defendant on that train or other- wise, and was in the exercise of ordinary care himself, then the plaintiff would be entitled to recover, even though you may find at that time the relation of master and employee existed between the defendant and the plaintiff."^ 1 Johnston, J., in Bycraft r. Ry. Co. Judgment affirmed by supreme court. This case is distinguished from Manville v. V. & T. R. R. Co., 11 0. S. 417, in that in the Manville case the conductor was in the dis- charge of a duty, being on the train going to his place of work. Judge Johnston's charge was approved by both circuit and supreme court. See as in point, Packet Co. v. McCue, 17 Wall. 508, where it was left to jury to say whether the employment had ceased. The Manville case specially holds that the plaintiff must be in the employ at the time of the injury. Sec. 2191. Liability for injury to passenger while assisting in caring for sick passenger — Whether plain- tiff was directed or permitted to assist in caring for passenger — Duty of company to- wards sick passenger, 1. Tarty assisting exposed to unknown danger. 2. Danger in passing from one car to another. 3. Ordinary care binder circumstances of peculiar peril. RAILROADS — AS CARRIERS OF PASSENGERS. 1981 4. Lack of knowledge of relative positions of platform of cars. 5. Injury must result from direct act of negligence of rail- way officials. 6. If injury resulted from mere accident. 7. Notice of dangers of passing from one car to another hy railway officials. 8. Passenger voluntarily assisting sick passenger. 9. Liability of company for directions of conductor as to care of sick passenger. 10. Duty of railway to sick passenger. 1. Painty assisting exposed to unknown danger. If tlio juiy find from the evidence that the plaintiff, pursuant to the direc- tion or request of the conductor of defendant's train, attempted to assist in the carrying of S. from the passenger coacli to the caboose, and that, in so doing, he used reasonable care, and was injured by reason of exposure to a danger of which he was not aware, and of which the servants of defendant, if exercisin;!^ only reasonable care, would have known of and either protected him from or gave hira timely and adequate warning of; then in that case, defendant is liable for the injurj^ rcsultiop: from exposure to such danger. 2. Danger in passing from, one car to another. If you find that plaintiff was exposed to a danger in attempting to jmss from the coach to the caboose, of which he did not know, and the servants of the defendant did know, or should have known, and it was such a danger as passengei-s, ordinarily, woidd not anticipate, then, and in that case, it became tlir duty of {he defendant, by its servants, to give plaintiff timely and adcHiuatc warning of such danger; and failure so to do, if reasonal)ly avoidable, was failure to use ordinary care, and for wliieh de- fendant is liable.^ 3. Ordinary care under circumstances of pecnlinr peril. What I mean by ordinary care and prudence, as the words .-ire used 3 Sec Wood on Railroads, sec. 301 ; Gee v. Met. II. }\., L. K. 8 Q. 15. 101. 1982 INSTRUCTIONS TO JURY. in this charge, is that degree of care and caution which persons of ordinary care and prudence are accustomed to use and em- ploy under the same or similar circumstances. The amount of care required will depend on the circum- stances of each particular thing to be done, and will vary as the circumstances of each particular transaction may differ; it is to be such care as prudent persons are ordinarily accus- tomed to exercise under the peculiar circumstances of each case ; if called into exercise under circumstances of peculiar peril, a greater amount of care is required than where the circumstances are less perilous, because prudent and careful persons, having in view the object to be attained, and the just rights of others, are, in such cases, accustomed to exercise more care than in cases less perilous; the amount of care is increased, but the standard is still the same; it is still nothing more than ordi- nary care under the circumstances of that particular case ; the circumstances, then, are to be regarded in each case in deter- mining whether ordinary care has been exercised or not.^ 4. Lack of knowledge of relative positions of platform of cars. In determining whether plaintiff exercised or failed to exer- cise ordinary care in attempting to pass from the coach to the caboose, you will consider his knowledge or lack of knowledge of the relative positions and elevations of the platforms from and to which he so attempted to pass. 5. Injury must result from direct act of negligence of railway officials. To entitle the plaintiff to recover for a failure or neg- lect of defendant to exercise such reasonable or ordinary care as indicated, it must appear, from the evidence in the case, that the injury was caused and occasioned by and as a direct result from such negligence or want of attention on the part of de- fendant, and was not simply the result of an accident ; and if the jury believe, from the evidence, that the injury resulted from an accident which could not have been seen and guarded against by the use and exercise of ordinary care and prudence 2 As to degree of care, see Mclntyre v. N. Y. Central R. R. Co., 34 N. Y. 287. RAILROADS — AS CARRIERS OF PASSENGERS. 1983 on the part of defendant, then the plaintiff can not recover in this action, 6. If injury resulted from mere accident. But if the injury was the combined result of an accident and the defendant's neg- ligence, or want of ordinary care, as aforesaid, and the accident would not have occurred but for such negligence or want of care by the defendant, and the danger could not have been foreseen or avoided by the exercise of ordinary care and prudence on the part of the plaintiff, the defendant, if guilty of such negli- gence or want of ordinary care, as aforesaid, would be liable for the injury to the plaintiff directly caused or occasioned thereby, if such did occur. 7. Notice of dangers of passing from one car to another by railway officials. If the railroad company, through its con- ductor or brakeman, gave timely notice or warning to tlic plain- tiff of the danger of stepping from one platform to the other, and the plaintiff misunderstood the notice or warning, through no fault of the defendant, or failed to hear the notice or warn- ing, and made the misstep and fell and was injui-cd. there can be no recovery in this case against the defendant. If the jury find, in this case, that S. heard the notice and warning from the conductor or brakeman to look out in step- ping across from the coach to the caboose, and thereafter S. liad time to make the step, as he understood tlie notice or warning, but, through misunderstanding of the notice, made a misstep and fell and was injured, then there can be no recovery in this action, and your verdict should be for the defendant. 8. Passenger voluntarily assisting sick passenger. If the jury find in this cause that the plaintiff, whilst upoTi said train, voluntarily and without the direction, knowledge, or r."(i\i('st of the conductor of said train, left said passenger coach to aid and assist in carrying a sick or disabled passenger from said passenger coach across into said caboose, and whilst so doing, in stepping from tlie platform of the i)assenger coach to said caboose, he slipped or stepped short and fell, and ret-eived the injury complained of, in consequence of tlu! distance between 1984 INSTRUCTIONS TO JURY. said caboose and said passenger coach being more than he ex- pected, or of the unequal height of the platforms, or owing to his view being hidden by the body of the man he was carrying, then there can be no recovery in this action, and your verdict should be for the defendant. 9. Liability of company for directions of conductor as to care of sick passenger. If the jury fiud from the evidence in this case that a passenger in one of said passenger coaches was taken sick or ill, or became disabled, through no fault or negligence; or want of proper care on the part of the railway company, and, in order to find a place where said sick or disabled passenger could lie down, that he might be specially and properly attended to, the conductor of said train, upon inquiry of him if there was such a place, suggested or said that there was a caboose at the rear of said train, having seats lengthwise of the sides thereof, to which he might be taken if desired, and thereupon said ])laintiff and others, friends of said sick or disabled passenger, proceeded to carry him to said caboose, and in so doing said plaintiff and others, before stepping from said passenger coach to said cal)oose, were warned to be careful in stepping across to the caboose platform, and thereafter the plaintiff, in stepping across, stepped short or slipped and fell between the platforms of the caboose and the passenger coach and was injured, then the plaintiff can not recover in this action, and your verdict should be for the defendant. 10. Ditty of railway to sick passenger. The railroad company, having provided comfortable, safe, and fit passenger coaches for the plaintiff, with all the usual, proper, and ordinary attach- ments and conveniences for public travel, was not obligated or bound to provide, in addition thereto, a car specially designed for the purpose of carrying sick or disabled passengers thereto or therein; and if you find that the plaintiff voluntarily aided and assisted in the carriage of a sick or disabled fellow-passenger from one of said passenger coaches to said caboose, even though with the permission of the conductor of said train, he thereupon took upon himself and assumed all the usual and ordinary risks. RAILROADS — AS CARRIERS OF PASSENGERS. 1985 dangers, and perils of such service arising from the differences between the height of the platforms of said coach and said caboose, and the space between the same ; and if, in thi' doing and performance of said service on his part, he was injured, through no willful act or misconduct on the part of said de- fendant or its employees, then there can be no recovery in this action by the plaintiff. If the jury find from the evidence in this case that the con- ductor of said passenger train permitted or consented that said sick man might be removed from said passenger coach to said caboose, he did not thereby direct such removal, nor direct nor invite the plaintiff to help or assist in the removal of said sick man from said passenger coach to said caboose ; and if the plaintiff volunteered to, or was requested by said sick man or his friends, to help carry said sick man from said passenger coach to said caboose, he thereby assumed all the usual and ordinary risks and perils attendant upon such service, and the defendant could not be held liable for any injury received by plaintiff, which was one of the usual and ordinary risks and perils of such service. If the jury find from the evidence in this case that the injury to S. was accidental and not from any M-ant of proper care and precaution, under the circumstances, on the part of himself or the railroad company, then there can be no recovery in this action, and your verdict should be for the defendant.^ 3 Snook, J., in Railway Company v. Salzman, 52 0. S. 558. "A rail- way company is under obligation to give such care to a paasongor who becomes sick on its train as is fairly practicable witli tho facilities at hand, without thereby unduly delaying its trains, or unreasonably interfering with the safety and comfort of its other passengers." As to degree of care in, see McTiityre v. N. Y. Central R. R. Co., 34 N. Y. 287. As to duty to care for sick passengers, see A. T. & S. R. R. Co. v. Wobcr, 33 Kan. 543 ; Connolly v. Crescent City R. R. Co., 41 La. Ann. 57. CHAPTER CXXVIII. RAILROAD CROSSINGS— INJURIES AT. 8E0. 2192. 2192a 2193. 2194. 2195. 2196. 2197. 2198. 2199. 2200. Relative rights and duties of company and public to use crossing. . Same continued — Both must use faculties to discover danger. Duty of (deceased) to use senses on approaching crossing — ^Another form. The giving of signals when approaching crossings. Signals for the protection of persons about to cross track. Omission to ring bell and sound whistle. Relative duties of plaintiff and defendant — Plaintiff may drive on when train is standing still. Failure to look and listen, negligence — Duty of de- fendant to give warning — ^View of plaintiff — Must use senses, slacken speed, or stop. Duty to provide safeguards if structure render cross- ing dangerous — Question for the jury. Negligence of pedestrian. Duty of driver of vehicle on approaching crossing when view unobstructed, and where obstructed — Duty when flagman gives signals — Must be free from negligence. 1986 SEC. 2201. 2202. 2202. 2204. 2205. 2206, 2207. 2208. 2209. 2210. 2211. Injury to pedestrian crossing track — Duty when there is temporary obstruction — Standing on track and failing to look for ap- proaching train prima facie negligence. Train has right of way — Duty of one about to drive across crossing to stop when train in close prox- imity. Duty of driver of vehicle to look just before crossing track. Duty of engineer in approach- ing crossings. Injury resulting from con- current miscalculation of engineer and driver of vehicle — No recovery. Duty of gateman in lowering gates. Duty of driver of automobile at crossing. Driver of an automobile may rely on gateman giving notice. Driver of automobile placed in sudden peril at cross- ing. Imputing negligence of driver to occupant of automo- bile. Injury caused by backing train onto vehicle at crossing. RAILROAD CROSSINGS — ^INJURIES AT. 1987 SEC. SEC. 2212. Injury to child climbing over 2215. Presumption tliat every pcr- train stopping on cross- son exercises care for liis ing — Negligence under own safety when in dan- such circumstances. ger — Burden of proof on 2213. Same continued — Wliether defendant to prove de- child climbing over train cedejit did not look and guilty of contributory listen. negligence. 2216. Defendant liable though stat- 2214. Shunting cars, while making utory signals given — flying switch, across When other acts of neg- street crossing. ligence charged. Sec. 2192. Relative rights and duties of company and public to use crossing. The right of the railroad company to enjoy the use of its railroad at the crossing of the public highway, and the right of the traveling public to use the highway, are co-ordinate and equal ; reasonable care and prudence must be exercised by each in the use of the same; each must so use his own right to cross that he shall not unreasonably interfere with the rights of others to pass over, having in view the nature and necessities of the method of locomotion, and power of control over the locomotion peculiar to each, so that, while the operators of the railroad are to use care, considering the nature of their machinery, tlie speed with which it is necessary to run a train, the effect of a collision by the train with an object on the crossing, and all other ele- ments of danger entering into it, if there are any, that, under the circumstances, a man of ordinary prudence would exercise; so is he who travels upon the highway to use ordinary care. Considering the means by which he is traveling, it will be observed that the man on foot, or traveling with a horse and buggy, can much easier control his movements than can the servants of the railway control the movements of the train, so the rule is that each one, with reference to their parliciilar mode of traveling, that they should exercise the care that iikmi of ordinary care and prudence would use under the same or simil.ir circumstances. The defendant had the right to run the train at the time and place of this collision at any speed .•onsislcTit 1988 INSTRUCTIONS TO JURY. with the safety which was necessary in the conduct of its busi- ness in the usual and ordinary manner, taking into considera- tion, however, all the circumstances surrounding that crossing affecting the traveling public and having a due regard for the safety of the public using the crossing.^ 1 Gillmer, J., in Flemming r. Penn. Co., Trumbull Co. Com. Pleas. If one approaching a crossing fails to look out for approaching trains, he is prima facie guilty of negligence, 24 0. S. 670, 677, 28 O. S. 340. Sec. 2192a. Same, continued — Both must use faculties to dis- cover danger. Plaintiff and defendant in this case had co-ordinate and equal right to the use of crossing of the highway and the railroad, and they were each held to the exercise of reasonable care and prudence in the use of the crossing, so as not to interfere un- necessarily with the other. Sucli reasonable prudence would require both plaintiff and defendant's employees, if in the full enjoyment of their faculties of seeing and hearing, before at- tempting to pass over a kno-s\'n railroad crossing, to make use of such faculties for the purpose of discovering and avoiding danger, and the failure to do so without reasonable excuse is negligence.^ 1 J. n. Dav, J., in I. E. & W. T\. E. Co. r. Stadler. supreme court, unre- ported case. See important case and note, Paul v. Railway, Ann. Cas. 1912, B. 1132, 231 Pa. St. 338. Sec. 2193. Duty (of deceased) to use senses on approaching crossing — Another form. "The deceased was bound to use the same care in protecting himself that the defendant company was bound to use in seeing that no person came to injury by the management of its cars and engines. Tliat is, he was bound to use such care and pru- dence as a reasonable, prudent man would use in protecting himself against any injury. It was his duty to use his senses, in approaching the railway track, to discover whether or not there was an approaching train or locomotive which might R-ULROAD CROSSINGS — INJURIES AT. 1989 injure him, to make such reasonable use of his eyes and other senses as a reasonable and prudent man would make, and it', by the use of them, he could have avoided the danger, then he can not recover from the company. But if he exercised such care as a reasonable and prudent man would exercise, and if the defendant was guilty of neglect in the running of the engine, and the deceased was killed by reason of that, tlien the company is responsible."^ 1 From Railway Company v. Schneider, 4.') 0. S. 678. '"It was tlie duty of the deceased in approaching the railroad crossing, to look for the locomotive before attempting to cross; and if his failure contrihutcti to the accident, the plaintiff can not recover, even though the de- fendant's negligence contributed to the injury." "Even though the fireman and engineer were guilty of neglect contributing to tlie injury, yet that did not absolve the deceased from o.\ercis- ing the precaution of looking and listening for tlie approach of trains at such point on the street as would enable him to discover the approaching train or locomotive; or from approaching the cross- ing at such gait as would enable him to control his horses promptly." From Railroad Co. v. Schneider, 4.5 0. S. 678. Sec. 2194. The giving" of signals when approaching crossing. The statute requires that a railroad company shall attach to each locomotive passing upon its road, a bell and wliistle, and when an engine is in motion and is approaching a turnpike, highway or town road crossing or private crossing where the view^ of such crossing is obstructed by embankment, trees, curve or other obstruction to view% upon the same line therewith, and in like manner where the road crosses any other traveled place, by bridge or otherwise, the engineer or person in charge thereof, shall sound such whistle at a distance of at least eighty and not further than one hundred rods from such crossing, and ring such bell continuously until the engine passes the crossing.' 1 Code, sec. 88.'53. Sec. 2195. Signals for the protection of persons about to cross the track. The statute is designed for the iK'ncfit ;.nd protection only of persons who are about to pass over a gnidc oi- «>thrr crossing 1990 INSTRUCTIONS TO JURY. as therein provided, for it provides that the whistle is to be sounded before reaching the crossing, and the bell is to be con- tinuously rung until the crossing is passed. The signals are not required at any other time.^ 1 Railway r. Workman, 66 0. S. 509, 542; Eailway v. Depew, 40 O. S. 121, 127-129. Sec. 2196. Omission to ring bell and sound whistle. The law requires that every railroad company shall have attached to each locomotive engine passing upon its road a bell of the ordinary size in use on such engines and a steam whistle ; and the engineer or person in charge of the engine in motion, and approaching a public highway or town-road crossing, upon the same level therewith, shall sound such whistle at a distance of at least eighty, and not further than one hundred, rods from the place of such crossing, and ring such bell continuously until the engine passes such road crossing ; and such company em- ploying such engineer or person in charge of the engine shall be liable in damages to any person injured, in person or prop- erty, by such neglect or act of such engineer or person. In regard to that statute the .jury are instructed that the omission to ring the bell or sound the whistle at public cross- ings is not sufficient grounds to authorize a recovery, if the person injured, notwithstanding such omission, might, by the exercise of ordinary care, have avoided the accident ; but if the person injured by reason of such omission to ring the bell or sound the whistle could not, by the exercise of ordinary care, have avoided the accident, he would be entitled to recover dam- ages under that statute because of such omission. Therefore, if the jury find from the evidence that plaintiff's intestate was injured by the negligent omission to ring the bell or sound the whistle upon defendant's locomotive, and that, by the exercise of ordinary care, he could not have avoided the injury, then plaintiff will be entitled to recover damages because of such negligence and injury inflicted thereby. RAILROAD CROSSINGS — INJURIES AT. 1991 If the jury believe from the evidence that the engineer sounded the whistle from a point more than one hundred rods to a point nearer than eighty rods from the crossing where the accident occurred, such sounding of the whistle was a substantial compliance with the requirements of the law in that behalf.^ iDouthitt, J., in P. C. C. & St. L. Ry. v. Adams, S. C. 3671. Judg- ments affirmed. Harrison county. The failure to give signals must have been the proximate cause of the accident before re- covery can be had. Penn. Co. v. Ratligeb, 32 0. S. 72. Sec, 2197. Relative duties of plaintifif and defendant — Plain- tiff may drive on when train standing- still. The same duty was upon him in approaching a known rail- road crossing as upon defendant, and he must use his faculties of seeing and hearing to detect and avoid danger. He must look and listen to ascertain if there is danger, and to avoid it. If he fails to do this, he is not in the exercise of ordinary care, but is negligent. If plaintiff looked and listened in this case, and saw the train standing still, with no evidence of activity or intention to move back, and no signal was discovered or heard of an intention to move back, he would be at liberty to drive onto and across the railroad, and would not be subject to the charge of negligence. If, however, he omitted these things, and without exercising ordinary care, and without care, drove onto the crossing in the presence of a moving train, or a train that had signaled and given notice of its purpose to move across the crossing, in such case the plaintiff may not recover.^ 1 J. H. Day, J., in L. E. & W. R. R. Co. v. Stadler, supreme court, un- reported. Sec. 2198. Failure to look and listen, negligence — Duty of defendant to give warning — View of plaintiff. It is a duty of a person approaching a known railroad cross- ing to look and listen for an approaching train and to iiiako use of his senses to ascertain if there is a train in the vicinity, and if, being in full possession of his faculties, he fails to take 1992 INSTRUCTIONS TO JURY. such precautions without reasonable excuse therefor, when a prudent man, exercising his senses, would have discovered a train in close proximity, and such failure contributes to pro- duce injury, he is guilty of negligence, and there can be no recovery.^ It is the duty also of the defendant company by proper signals, and in a manner that would ordinarily com- municate to the plaintiff approaching the crossing, that the defendant's train was approaching the crossing, but that its notice must be given so that the plaintiff could protect himself from injury. If you find from the evidence that there was a place on the east side of street Avhere the train could be seen as it n p- proached the crossing, and further tind that the train could have been seen by the plaintiff from that space as he passed, and he failed to look, without a reasonable excuse therefor, he was guilty of negligence, and if such negligence contributed to produce the injury, then he could not recover. It is because railroad crossings are dangerous tliat it is the duty of persons approaching them, and about to cross, to be careful. Any circumstances or obstruction which increases the danger of crossing increases the duty of vigilance to avoid the injury. (a) Mvft vse senses, slacken speed or stop. It is the duty of a person approaching the crossing in a buggy to assure himself, if he can by the use of his senses of sight and hearing, that no cars are in dangerous proximity, or, if neces- sary in the exercise of ordinary care to make such observations, he would be required to reduce the rate of speed, or even to stop his conveyance so as to ascertain whether or not he could cross the track in safety; but in this case the law does not require a vain thing, and if there were buildings and obstruc- tions which would have prevented the plaintiff from seeing the approaching train if he had turned his eyes in that direction, that he was not bound to look at such point, and failure to do so would not be negligence.^ iC. C. C. & I. Ry. V. Elliott, 28 0. S. 340; Kailway v. Geiger, 8 O. C. C. 41. RAILROAD CROSSINGS INJURIES AT. 1993 - Gillmer, J., in Flemming r. Pa. Co., Trumbull Co. Com. Pleas. ^\ here buildings and obstructions obstruct view, for degree of care in, see Wood on Railroads, sec. 323; Dimmick v. Chicago, etc., R. R. Co., 80 111. 338. Sec. 2199. Duty to provide safeguards if structures render crossing dangerous — Question for the jury — Negligence of pedestrian. If you find from the evidence that the railroad company, by reason of the speed it ran its trains across street, its number of tracks, or having cars standing on the tracks near said crossing, or the existence of buildings or other structures at or near said crossing, rendering the use of street dan- gerous to the public, you are instructed that the company was under obligation to employ reasonable care and prudence in providing safeguards for the protection of persons lawfully passing along said street and over said railroad tracks, and com- mensurate with the dangers of the locality so created by tlie company, to persons exercising their rights to pass over and along said highway in a reasonable manner. It is left for you to say from the evidence, under all the circumstances, whether a flagman ought to have been employed by the company, and whether it would be negligence on the part of the defendants not to have done so at the time of the injury; and if tlie de- fendant was guilty of negligence in these respects, and the decedent was not in fault, and sustained said injury therefrom, the plaintiff would be entitled to compensation therefor, if in other respects, you find that he is entitled to recover under the instructions given you. If the decedent knew that a flagman was employed by the company at the crossing, and had good reason to believe, and in good faith believed, that one was so employed at the time of the injury, and you further find that it was the duty of the company so to employ a flagman, the decedent might presume, in the absence of knowledge to the contrary, that lie was prop- erly discharging his duties, and it was not negligence on her 1994 INSTRQCTIONS TO JURY. part to act on the presumption that she was not exposed to danger, which could arise only from the disregard by the flag- man of his duty ;^ and if the flagman was then absent from his place of duty, or was not giving any signal or warning when she attempted to pass over the crossing, she might presume that no train was approaching which would make it dangerous for her to attempt to pass over the crossing, in the absence of other knowledge to the contrary.- 1 Schneider case, 45 O. S. 678. - Voris, J., in Gaston, Admr., v. Lake Shore R. R. Co., Lorain Co. Com. Pleas. Flagman and Gatemen. — In the absence of statute, the omission to main- tain flagman may be considered as part of res gestae with other facts as bearing upon prudence or negligence of company, 78 N. Y. 518, 66 Mich. 150, 74 Wis. 240, 74 Wis. 514, 101 Mass. 201; Beach Contrib. Neg., p. 247; Patterson Ry. Ace. Law, 163. At an exceptionally dangerous crossing, a company is bound to exercise care proportioned to the increased danger, and should maintain flagman, gates or gatemen. Ry. Co. v. Schneider, 45 O. S. 678. A traveler approacliing the crossing may presume that the gate- men will properly do their duty. Id. There is no rule of law requiring a railroad company to erect gates, or keep flagman at crossings outside of a city or village. L. S. & M. S. Ry. v. Gaffney, 2 Oh. Dec. 212 (C. C). If a railroad company voluntarily establishes a gate at a crossing, there is an implied assurance that the tracks may be safely crossed if the gates are open. Jaggard on Torts, 881. Sec. 2200. Duty of driver of vehicle approaching crossing when view unobstructed, and where ob- structed — Duty when flagman gives signals — Must be free from negligence. "The common precaution is to look both ways and listen. Perhaps where the view of the track is unobstructed and sufficiently wide, it satisfies the rule simply to look, otherwise the common law is that one should also listen. Wliere the view is obstructed, the caution must consist mainly in listening, it may be a duty to produce quiet by stopping. If the railroad company employ a flagman, gate or other device to warn people RAILROAD CROSSINGS — INJURIES AT. 1995 of approaching danger, a traveler is not negligent who, instead of looking and listening, follows the signals, unless he reasonably knew aside from the signals that danger was actually imminent. But, on the other hand, a traveler who relies upon the signals rather than upon his own faculties is negligent if he disregarded the signals. "The matter may be summarized thus: A railroad track is commonly a place of danger. He who undertakes to cross, to be free from negligence, must take such precaution to ascertain the imminence of danger as an ordinarily prudent man would take under like circumstances. And if you believe from the evidence that the driver might, by the exercise of ordinary care and caution, have become aware of the danger and have avoided it, that he omitted to exercise such care and caution, and that his omission to do so directly contributed to the injury, then he was guilty of negligence.^ 1 Leisor v. C. H. & D. R. Co. Hamilton county. Wright, ,T. Sep R. R. Co. V. Schneider, 45 0. S. 678. Sec. 2201. Injury to pedestrian crossing track — Duty when there is temporary obstruction — Standing on track and failing to look for approaching train prima facie negligence. If a passing train on another track, or escaping steam, or any other temporary cause obstructed or obscured her view or hearing, then the court says to you that it was her duty, before attempting to cross, to wait until such temporary cause had passed away, and if she attempted to cross without thus waiting, she did so at her own risk, and if injured M'hile thus crossing, she can not recover, if you find that, by waiting until such temporary cause had passed away, she could have crossed in safety. The necessity or importance of her being at the factory immediately or promptly would be no excuse for her not waiting until she could cross in safety, or justify her in takitur any 1996 INSTRUCTIONS TO JURY. risks; neither would absent-mindedness, thoughtlessness, forget- fulness, or inattention. If you find that plaintiff failed to look east for the train, that is not merely evidence of negligence from which you may or may not infer it, but it is, in and of itself, such negligence as prevents her from recovering, if, by thus looking, she could have seen the approaching train in time to have avoided the injury. And it was equally her duty to listen as Avell as look, and to do both attentively and carefully until across the track. And it is the duty of every person of mature years and sound mind, about to cross a railroad track, not only to look and listen, but to exercise all their other senses and means of knowing to ascertain if a train is approaching, and if they fail to do so without a reasonable excuse therefor, and are thereby injured Avhile crossing, they can not recover. If an adult person in full possession of her faculties goes upon a railroad track and voluntarily stops or stands thereon, not being an employe of the railroad company, and omits to watch for the approaching trains, she is, prima facie, guilty of such negligence as will prevent her recovering for injuries while so on the track; and before she can recover, she must show that it was not reasonably practicable to keep such look- out, or that which would ordinarily induce a person of common prudence and circumspection to omit such precaution. If the plaintiff failed to look and listen, she was guilty of such negligence as will prevent her recovering, if, by proper and prudent looking and listening, she could have ascertained and avoided the injury, and also, if she looked and listened and did not see or hear the train when, by the exercise of ordinary care and attention, she might have done so and escaped injury, then in law she looked and listened carelessly and negligently, and is equally culpable, and in either case she was guilty of such negligence as will prevent her recovering a verdict, if you find that her negligence or failure aforesaid contributed to her injury, in whole or in part, unless you find that it was prudent and proper for her, under the circumstances, RAILROAD CROSSINGS INJURIES AT. 1997 to omit looking and listening before going on the track, and also while standing upon it, if she did.^ 1 Gilhner, J., in Huron v. N. Y. L. E. & W. R. R. Co., Portage Co. Com. Pleas. As to necessity of flagman, see Code, sec. 588. Sec. 2202. Train has right of way— Duty of one about to drive across crossing- to stop when train in close proximity. The jury is instructed that as between a person who is about to cross over a railroad at a crossing, and a train of cars approaching such crossing, the train has the right of way. This is so because the person can stop within a few feet, while the train can not. It is therefore the duty of the person so approach- ing the crossing to stop and let the train pass before attempting to cross, provided it is apparent to an ordinarily prudent person that both the approaching train and the person are in sueli close proximity to the crossing as to make it reasonably apparent to an ordinarily prudent person that such train is so close at hand as to render the crossing by the person dangerous uiidi'r the circumstances. To rush ahead and attempt to pass under such circumstances knowing the train is of such close proximity to the crossing as to render such act dangerous would constitute negligence.^ 1 Railroad v. Kistler, 66 O. S. 326, 336. Sec. 2203. Duty of driver of vehicle to look just before cross- ing track. To drive upon a crossing without first looking for passing trains is negligence. It is the duty of one about to. cross at a railroad crossing to look for the passage of trains just before going upon the crossing, or so near thereto as will enable him to get across in safety at the speed he is going before a train within the range of his view of the track, going at the usual speed of fast trains, would reach the crossing. It is the duty of such person to so look before going upon the track, even 1998 INSTRUCTIONS TO JURY, though such person had before approaching closely to the track, that is, though there was a looking farther away when no train was seen approaching. Such person is bound to take into account the fact that a train at the usual speed will go quite a distance, while a team on a walk or trot will go a much shorter distance. The care to be observed by the traveler in such case must correspond with the danger, and is to be determined by the jury under the facts and circumstances disclosed by the evidence.^ 1 Railroad v. Kistler, 66 O. S. 326, 336. Sec. 2204, Duty of engineer in approaching crossings. The jury is instructed that it is the duty of an engineer on a train to keep a lookout on the track ahead of him. He is not expected or required to see anything on the sides of the right of way farther than his eye may take in objects within the range of vision while looking ahead along the track, because his paramount duty is to watch over the safety of the persons in his charge, which obligation is most effectually performed by keeping a strict lookout ahead along the track, so as to see any obstruction at the earliest moment, and to be prepared to avert danger to the train. If, however, while so looking ahead his eye takes in a person approaching the track at a crossing, he is then bound to use ordinary care to prevent injury, his first care however being for the safety of his passengers and property on board for transportation. The engineer has the right to presume that a person so approaching the crossing will keep away from the track until the train passes, but when it becomes apparent to him that the person can not or will not keep away from the track, then it is incumbent on such engineer to do all that he reasonably can to prevent injury. Whether or not the engineer could or did see the person approaching the crossing is for the jury to determine. Of course whatever lie would or should see in the reasonable discharge of RAILROAD CROSSINGS — INJURIES AT. 1999 his duty, he is chargeable with having seen. But he is not required to neglect his duties on the train to look outside of the right of way for approaching persons, not within the range of his \dsion while looking ahead along the track. There can be no recovery by plaintiff, unless it appears from the evidence that the engineer after he saw , and realized his danger, had time to slow down the train or to stop it so as to prevent the injury.^ 1 Railroad v. Kistler, 66 0. S. 326. Sec. 2205. Injury resulting from concurrent miscalculation of engineer and driver of vehicle — No recovery. If it appears from the evidence, that [the person] approaching the crossing, was negligent in going upon the crossing in front of a rapidly approaching train, thinking that he could cross in safety ; and if it appears also that the engineer after discovering that such person [plaintiff or decedent] was negligent, negli- gently failed to slow down or slacken the speed, or to stop the train, thinking or assuming that such person would be able to cross in safety, and the collision occurred by reason of the mistake or miscalculation of both, then such injury resulted proximately from the concurrent acts of both and the plaintiff can not recover.^ 1 Railroad v. Kistler, 66 0. 8. 326. Sec. 2206. Duty of gateman in lowering gates. The jury is instructed that it is the duty of a gateman employed at a railroad crossing to exercise ordinary care in t!i.' operation of the gates to avoid letting them down on any one in the street. It is the duty also of persons about to cross a n.ilroa.l crossini,' where gates are maintained and operated by gatemen, to use ordinary care in watching for the lowering of suc^li gatc^, although it may not be required of them that they be con- tinually on the watch of the movements of the gate. 2000 INSTRUCTIONS TO JURY. In the exercise of ordinary care by the gateman he is required to keep the gate under such reasonable control at all times and to keep a lookout on the street. He must observe reasonable care to avoid letting the gates down on any one in the street, or to let the same down unannounced or unexpectedly when a traveler starts to cross the tracks.^ iSager v. R. E. Co., 70 Kan. 504; Feeney v. R. R. Co., 116 X. Y. 375, 5 L. R. A. 544; O'Keefe v. R. R. Co., 108 Mo. App. 177. See note Ann. Cas. 1913, B. 800. Sec. 2207. Duty of driver of automobile at crossing. While the use of the automobile as a mode of travel in high- ways and streets may develop new phases of questions of reciprocal rights and duties in some respects, still the general doctrines of the law become applicable to those operating the same in relation to the use of grade crossings over railroads. The same obligation and duty is imposed on a driver of an automobile before passing over a railroad crossing at grade to stop, look and listen before crossing the same.^ The application of this rule in such case is simpler and less difficult than to drivers of vehicles because there is no danger when the auto- mobile is in close proximity to the railroad track.- The same rule applies where the vision is obscured or restricted, it being the duty of the driver to stop at a point in such close proximity to the tracks of the railroad as will render the vigilance of the driver effective.^ So if the crossing is located at a point where the vision is not only obstructed but where there is such noise as to render it difficult to hear the approach of a t'rain vigilance commensurate with the situation is required.* So whether the driver observed ordinary care, whether he stopped a sufficient length of time, or at a place where it would be effective, or under such circumstances and conditions as to learn and know the conditions and circumstances is for the jury." iBrommer v. R. R. Co., 179 Fed. .577. 103 C. C. A. 135. 29 L. R. A. (N.S.) 924; Horandt v. R. R. Co., 81 N. J. L. 488: Spencer v. R. R. Co., 123 App. Div 789, 108 N. Y. S. 245, 197 N. Y. 507. But see Walters v. R. R. Co., 133 Pac. 357. RAILROAD CROSSINGS — INJURIES AT. 2001 2 Chase v. R. R. Co., 208 Mass. 137. 3 Railroad v. R. R. Co., 168 Fed. 21, 93 C. C. A. 413, 21 L. R. A. (N.S.) 794. 4 Dickinson v. R. R. Co., 81 N. J. L. 464, 37 L. R. A. (N.S.) 150. .'Bush V. R. R. Co., 232 Pa. St. 327. See note 46 L. R. A. (N.S.) 702, where authorities are collected. Sec. 2208. Driver of an automobile may rely on gateman giving notice. The jury is instructed that where a gate or a flagman is maintained at a crossing, a person driving an automobile has the right to assume that the gate will be lowered if a train is approaching, or that a signal will be given, so that there is no duty or obligation resting upon such driver requiring him to stop, look and listen in such case.^ 1 Roby V. R. R. Co., 130 La. 880, 58 So. 696. Sec. 2209. Driver of automobile placed in sudden peril at crossing. The jury is instructed that where the driver of an automobile is placed in a position of sudden peril or in imminent tlanger in attempting to cross over a railroad crossing he is not nuiiiiriHl to act with the same degree of care and precaution, as he would under other circumstances when he had more time for reflection and deliberation.^ So therefore, etc. 1 Dickinson v. R. R. Co., 81 N. J. L. 464, 37 L. R. A. (N.S.) l.'iO; Hull V. R. R. Co., 60 Wash. 162; Railroad v. Vidal, 184 Fed. 707. 106 C. C. A. 661. Sec. 2210. Imputing negligence of driver to occupant of automobile. The jury is instructed that the negligence of a driver of an automobile in approaching a railroad crossing in failin- 1.) slow down just before reaching a point where a vi.'w of tlir railroad track could be had, can not be irnput.-d to a [.nss.-i.-.r in su<-h automobile who is himself not guilty of any neglect.' iWachsmith V. Railroad. 233 Pa. St. 465, R2 Atl. 755. An... C.is. 101.3, 679, note and cases. 2002 INSTRUCTIONS TO JURY. Sec. 2211. Injury caused by backing train on vehicle at crossing. You must find that the backing of the train onto the wagon, resulting in the injury, was done by the servants of the defend- ant railway under such circumstances as evidences want of ordinary care on the part of such servants, showing negligence on their part. If the backing was accidental and w'ithout volition on the part of the agents or servants of the defendant, then it would not be chargeable with the negligence or liable for an injury resulting therefrom. To make the defendant company liable for the injury in this case it is imperative that it be made to appear by evidence that the agents of defendant in charge of the train negligently backed the train and produced the injury sought to be recovered for by the plaintiff in this action. If the train of defendant was standing still, with its rear end occupying a part of the public crossing only, there remaining space sufficient for the passing and repassing of teams, it would be the duty of the servants and agents of defendant, before backing or running said train farther onto or across such cross- ing, to first make use of their faculties of seeing and hearing to ascertain if there was danger of injuring someone, to learn if the crossing was occupied or not, and to be careful so as not to unnecessarily inflict any injury. And if the agents and employes omitted to use their faculties, but instead, without warning or signal, suddenly backed their train onto the said crossing and injured plaintiff, the said employes and agents would be guilty of negligence, so as to make the defendant company liable for any resulting injury.^ 1 J. H. Day, J., in L. E. 'iy. through its agents and servants, or any one of them, ong:igeart. 3. Must he something in the appearance in plaintiff to indicate to servants of railway that he was helpless and in danger — Other- wise it may he assumed he will leave the fraeJc. Tt is imjxjrtnnt for you to consider whether or not there was in the appearanco 2024 INSTRUCTIONS TO JURY of the plaintiff at or after this presence on the track was dis- covered by the engineer in charge of the locomotive which struck him, anything to indicate to the engineer that the plain- tiff was not in the possession of his senses. If there was notliing in the conduct or appearance of the plaintiff after he was dis- covered by the engineer which would lead a person of ordinary condition of helplessness, or in a condition where he was not able to care for himself, then the engineer had a right to pre- sume that the plaintiff possessed ordinary capacity to care for himself, and that he could see and hear, and that as a locomotive approached him lie would leave the track, and under such cir- cumstances the engineer was not bound to slacken the rate of speed of the locomotive until it became apparent to him that the plaintiff was not going to leave the track, when it would become the duty of the engineer to use due and proper care to stop his locomotive and avoid the injury. A failure upon the part of tlie engineer to use ordinary care to stop after he discovered that the plaintiff was not going to leave the track, or after starting to leave it and was returning to it, would render the defendant company liable for the injuries caused to him by the engineer's failure to use ordinary care. And what would be ordinary care under such circumstances is for tlie jury, and would be that care which ordinarily prudent persons are accustomed to use under like circumstances. But if you find the fact to be that the engineer did use ordi- nary care under the circumstances to stop after lie discovered that the plaintiff was not going to leave the track, or was re- turning to it after starting to leave it, and could not stop in time to avoid the injury, then the defendant is not liable for the injury. To entitle the plaintiff to recover in this case you must find from a preponderance of the evidence that the plaintiff was for .some reason unconscious of his peril, or unable by reason of an injury to escape from it, and that this condition was actu- ally known to some one or more of the employees of the de- fendant company, and that they obtained this knowledge in RAILROADS MISCELLANEOUS CASES OF NEGLIGENCE. 2025 sufficient time to have enabled them to have avoided the injury to him by the exercise of ordinary care on their part. The defendant company was under no obligations to fence its track to keep the public from traveling along its right of way. The defendant was not bound to exercise ordinary care at this point on its tracks, as I have said to you, for the safety of persons who may for their own convenience be upon its tracks, and is only liable to the plaintiff in case you should find that it did not use ordinary care for his safety after discovering his peril. In other words, any negligence of the defendant company prior to the discovery of the plaintiff's peril will not render the de- fendant company liable for his injuries.^ 1 Rubel V. Hocking Valley Ry. Franklin county. Bigger, J. Affirmed by circuit and supreme courts. CHAPTER CXXX. ItAPE, AND ASSAULTS TO COMMIT. SEC. '^*^C. 2230. Defined. 2234. Evidence as to character of 2231. Consent of female. the woman. 2232. Carnal knowledge when com- 2235. Resistance — Evidence. j)lete. 2236. Assault with intent to rape. 2233. Capacity — Burden of proof 2237. Same continued — Force — Con- wliere accused under sent. fourteen years of age. 2238. Same continued — Declarations of prosecuting witness. Sec. 2230. Defined. [By statute, sees. 12413, 12414, 12415.] Sec. 2231. Consent of female. The jury are instructed that before you can find the defendant guilty, you must be satisfied beyond a reasonable doubt that carnal knowledge was had against or without the consent of the female. Carnal knowledge with consent is not rape, unless the female person is under sixteen years of age. It is not necessary that want of consent be shown by actual manual re- sistance, but it must be shown that the consent be given by the female person as a rational and intelligent person. If you find that the defendant had carnal knowledge of the female while she was so drunk as to be unconscious, it is in law having carnal knowledge against her consent; or if the woman is insane, or an imbecile, or asleep, it is against her consent; or if her consent was obtained by threats and fear of bodily harm, although there is no actnal violence, it is against her consent.^ As the law now stands it is not material whether consent has been given by a female under sixteen years or not, as the statute 2026 RAPE, AND ASSAULTS TO COMMIT. 2027 makes it rape where a male eighteen years of age carnally knows and abuses a female person under sixteen years of age, with her consent. It is now rape to have intercourse with a female under sixteen years with or without her consent. 1 Clark's Cr. Law, 186-88. By threats, Miller v. People, 42 Mich. 262; Dickerson v. State, 40 X. E. 667 (Ind.); Hawkins v. State, 136 Ind. 630; Monroe v.' State, 71 Miss. 196. Sec. 2232. Carnal knowledge complete, when. The jury are instructed that carnal knowledge or sexual inter- course is complete upon proof of penetration.^ The offense is complete if there be penetration only without emission {emissio seminis), nor is it necessary that penetration be full and complete, but the slightest penetration of the male organ into the female organ will constitute carnal knowledge within the meaning of the law.- Before you can find the defendant guilty of rape, you must be satisfied beyond a reasonable doubt that there was some penetration of the male organ of the defendant into the female organ of the prosecutrix.^ 1 Code, sec. 13672. This section does not enlarge the meaning of the stat- utory provision in relation to rape as to include persons not before amenable, 35 0. S. 52. 2 Williams v. State, 20 Fla. 777, 5 Am. Cr. 612. See Blackburn v. State. 22 O. S. 102. 3 Massey v. State, 20 S. W. 758. Sec. 2233. Capacity — Burden of proof when accused under fourteen years of age. "If it be found that the accused had sexual intercourse with the child, in the manner stated in the indicfinont, but that he was, at the time, under fourteen years of age, the burden was on the state to show that he was capable of emitting sfiiit-n ; and the weight which should be given to the evidence, tending to prove or disprove such capacity, is for the consideration of the jury."i 2028 INSTRUCTIONS TO JURY. It is left entirely for the jury to say from the evidence whether or not the defendant was matured sufficiently and had the physical capacity to commit the act. If you find that the de- fendant was under fourteen years of age, the law presumes him incapable of committing rape; you are instructed that you can not convict him unless it is proven beyond a reasonable doubt that he has arrived at the age of puberty, and is capable of emission and consummating the crime. ^ 1 From Ililtabiddle r. The State, 35 0. S. 52. The charge above given is not taken from the charge of the lower court, but was suggested by the supreme court as being the proper instruction to the jury under the circumstances. 2 Williams v. State, 14 O. 227. 8. The statute. 7297, does not change this, 35 O. S. 52; Wagoner v. State, 2 Lea, 352; Gordon v. State. 03 Ga. 531. Sec. 2234. Evidence as to the character of the woman. Evidence has been admitted reflecting upon the character of the woman, and the purpose of the law in admitting such testi- mony should be explained to you. You are instructed as mat- ter of law that the character of the woman, granting that she is a lewd woman, is no defense to the charge, as rape may be committed against a prostitute as well as against a virtuous female.^ You are permitted to look to the testimony as to the character of the woman only as a mere circumstance in the case, for the purpose of assisting you in determining whether she has told the truth about the matter, and as reflecting upon the question wiiether or not the intercourse was voluntary on her part, or without her consent. You must consider this evidence with all the other proof offered in the case.^ 1 Anderson r. State. 104 Ind. 467. 2 People V. Crego. 70 Mich. 310; Carney v. State, 118 Ind. 525; State v. Reed, 39 Vt. 417; Pefferling v. State, 50 Tex. 486. Sec. 2235. Resistance — Evidence. You are instructed that the want of consent and actual pene- tration are both essential to the crime of rape, and you must be satisfied beyond a reasonable doubt that tliere was both want RAPE, AND ASSAULTS TO COMMIT. 2029 of consent and actual penetration before the defendant can be found guilty of the charge. The prosecutrix is bound to resist, unless manual resistance be overcome by fear or threats. The want of consent may be shown by the testimony of the prose- cutrix, but this alone without some corroboration is not sufficient ; it must appear that she made some resistance, and her testimony may be corroborated by her subsequent conduct, excitement, the condition of her clothes, whether torn, outcries, medical testi- mony as to the condition of the hymen.^ 1 People V. Terwillinger, 26 N. Y. S. 674; Eichards r. State, 36 Xeb. 17; People V. Kunz, 27 N. Y. S. 945; State v. Connelly, 59 N. W. 499; Richards v. State, 53 N. W. 1027. Walking together not sufficient. State V. Chapman, 55 N. W. 489 (la.). Fear of disclosing may render corroboration unnecessary, 111 Mo. 569. In People v. Wea- sel, 33 Pac. 216 (Cal. ), the jury were charged "wliile it is tlie law that the testimony of the prosecutrix should be scanned, still this does not mean that such evidence is never sufficient to convict, and if you believe the prosecutrix it is your duty to render a verdict accordingly." The jury may properly be charged that if they believe that, at the time of the alleged rape, the prosecuting witness made no outcry, and did not complain to others, but concealed the fact for a con- siderable length of time, that they may take tliis into account in determining whether a rape was in fact committed or not. Ter- ritory r. Edie, 30 Pac. 851. If the jury believe that the defendant had sexual intercourse with the prosecutrix, and she did not make the utmost resistance to prevent it, still the defendant may be found guilty provided the jury be- lieve that the defendant threatened to use force and do her great bodily injury in case she did not submit through fear of such injury. Id. 30 Pac. 851. Sec. 2236. Assault with intent to commit rape. The statute of Ohio provides that "whoever has eariinl knowl- edge of a female person forcibly and against her will is guilty of rape." Rape is defined to be the unlawful carnal knowledge of a woman by force and against her will. TIkit arc thrcf things, then, necessary to constitute the olfense of rape. 1. There must be carnal knowledge of a female person. 2. The act must be done forcibly. 3. It must be done against tlu- will of the female person. 2030 INSTRUCTIONS TO JURY. If you find, then, from the evidence that the defendant com- mitted an assault upon the person of the said L., it will become necessary for you to determine with what intent he committed said assault. Did said defendant commit said assault with intent to have sexual intercourse with said L., forcibly and against her will 1 And before the state would be entitled to a verdict of guilty against the defendant for the crime of assault with intent to commit rape, you must further find from the evidence that at the time he so assaulted the said L., he intended to have sexual intercourse with her forcibly and against her will. It is not necessary, to constitute the crime of assault with intent to commit a rape, that the defendant should have actually had sexual intercourse with the prosecuting witness L. The offense is complete under our statute if the defendant assaulted her with the intent to have sexual intercourse with her forcibly and against her will.^ 1 Nye, J., in State v. Hughs, Lorain Co. Com. Pleas. To constitute an assault with intent to commit a rape, the man's purpose must be to use force, should it be necessary, to overcome the woman's will. Bishop's Cr. Law. It is not enough merely to solicit her, however urgently, to consent to a carnal connection. Ibid. Sec. 2237. Same, continued — Force — Consent, etc. The allegation of force, in the absence of previous consent, is proved by any competent evidence, showing that either the per- son of the woman was violated, and her resistance overcome by physical force or that her will was overcome by fear or by duress. In either case the crime would be complete, though she ceased all resistance before the act itself was actually con- summated. Where a female submits to sexual intercourse through fear of personal violence, and to avoid the infliction of great personal injury upon herself, then such carnal inter- course would not be wdth such consent as would justify the act upon the part of the man accused. To sustain a conviction upon an indictment for assault with intent to commit rape, the testimony must show not only that RAPE, AND ASSAULTS TO COMMIT. 2031 the accused had a purpose at the time of tlie assault to have sexual intercourse with the prosecuting witness, but also that he intended to use whatever degree of force might be necessary to enable him to overcome her resistance, and accomplish his purpose. You are instructed that if the defendant made an approach towards the prosecuting witness with intent to procure her con- sent to have sexual intercourse with her, and if she refused, he abandoned the purpose, such act would not constitute an assault with intent to commit a rape. But if you find from the evi- dence that the defendant made an assault upon the prosecuting witness with intent to use such physical force and threats as would overcome her will and compel her to submit to his desires to have sexual intercourse with him, such act would constitute an assault with intent to commit a rape.^ 1 Nye, J., in State v. Hughs, Lorain Co. Com. Pleas. For definition of attempt, see Bishop's Criminal Law, sees. 72.S, rt scq. If after an assault with intent to ravish, the woman wlio had re- sisted yields voluntarily, so that there is no rape, the olFonso of assault with intent to commit rape remains, 12 la. 66, 50 la. lS!t. Sec. 2238. Same, continued — Declaxations of prosecuting witness. Testimony has been offered by the state and permitted to be given to you of the declarations made by L., the prosecuting witness, to her aunt, and to her mother soon after the alleged offense. In a case of this kind the declaration of the injured female made immediately or soon after the alleged offense, are competent testimony, provided the female has first been exatn- ined in court. They are competent not for the puri)ose of proving the commission of the offense, but as corroliorative of or contradictory to her statement made in court." iNye, J., in State v. Hughs, Lorain Co. (Oliio) C(in>. Picas. Tliis instruction is based on Johnson v. State, 17 Oliio, W.\\ Laii},'hlin V. State, 18 Ohio, 99, CHAPTER CXXXI. REPLEVIN. SEC. 2239. Short general instruction. 2240. Replevin of property of wife seized on execution against husband. 1. Statement of claims. 2. Ownership iirst to be determined. 3. Value of property. 4. Damages — If finding for plaintiff. 5. Damages — If finding for defendant. 2241. Conclusion of charge in re- plevin — ( 1 ) When bond given by plaintiflF. (2) And wiicn bond given by defendant. 2242. Replevin of annual jjroducts of the earth. 2243. Growing fruit — Whether per- sonalty under any cir- cumstances. 2244. Replevin of property by vendor when purchaser insolvent and did not intend to pay for them. 2245. Effect of mortgage given upon goods fraudulently bought. 2246. Chattel mortgagee may prose- cute action for replevin, when mortgage attacked as fraudulent. 2246a. Replevin of hogs by wife from purchaser on exe- cution against husband. 1. Statement of claims. 2. Burden of proof and weight of evidence — Testimony and evidence 2032 distinguished — Credibil- ity of witnesses — Ulti- mate facts. Wife claiming stock on farm of husband must rebut presumption of ownership by husband arising from possession and apparent ownership — She must show that she has separate prop- erty, or receipt of money during coverture. Wife entitled to increase of her stock though raised on husband's farm — Not subject to levy by creditor of husband. Wife estopped by conduct from claiming ownership as against persons deal- ing with husband on faith of his apparent ownership. Wife estopped by fraud- ulent pur])ose and con- duct of husband to avoid execution against his property if she has knowledge and partici- pates therein. Creditor of husband must have knowledge of and rely upon apparent pos- session and ownership by husband. . Wife must act witli dili- gence in asserting iier rights when creditor of husband levies execution. . Alternative verdicts. REPLEVIN. 2033 Sec. 2239. Short general instniction. The plaintiff, having alleged that he has the right of property and of possession, or had that right on the date this suit was commenced, has the affirmative of the issue ; and therefore the burden is upon the plaintiff to establish by a preponderance of the evidence that he is entitled to the right of property or of possession in the chattels described, and that the defendant at the time of the commencement of this action wrongfully detained the property from him. By a preponderance of the evidence is meant the greater weight of the evidence. Therefore, before the plaintiff can recover the greater weight of the evidence must be on the affirm- ative—on the side of the affirmative of tliis proposition; that the plaintiff at the conimencemeut of this action had the right of property or of possession in the chattels described, and that the defendant wrongfully withheld possession from liim. If you find such a preponderance in favor of the plaintitf, it will be your duty to find for the plaintiff. But if you find that tlu' evidence on the proposition is evenly balanced, or preponder- ates in favor of the defendant, it will be your duty to render a verdict for the defendant. You will therefore determine from the evidence in this case who had the right of property at the beginning of this action, and of possession, or either. If you find that the plainfitV bad the right of property and possession, or either, your venlict will be for him. But if you find that he neither had the riglit of property nor possession, your verdict will be for tlie de- fendant. As I have heretofore said, if you find that the j^laiiilifT was not entitled to the possession of tlu! property in quest ion, flicn it will be your duty to find that tlu; right of possession was in the defendant; and if you find in favor of llic plainlill* in the case, then you will determine if the right of properly or posses- sion Avas in the plaintiff at the coinmcnccnicnt of the actiitn, jirid you will also assess damages for the plnintilT. No dairuiges having been proved, you will assess one cent as nomin.il (j.nnages. 2034 INSTRUCTIONS TO JURY. If you find for the defendant you will find the right of pos- session in the defendant, and you will also find the value of the property, and also find the damages for the detention. No dam- ages having been proved, you will find one cent as the damages. The value of the property has been testified to here, and is undisputed as $ ; so that you will insert that value in your verdict in case you find for the defendant, together with the one cent damages.^ 1 Pennell v. Adams, Court of Com. Pleas, Franklin Co.. 0. Rogers, J. Sec. 2240. Replevin of property of wife seized on execution against husband. 1. Statement of claims. 2. Ownership first to he determined. 3. Value of property. 4i. Damages — If finding for plaintiff. 5. Damages — // finding for defendant. 1. Statement of claims. Gentlemen of the jury, this is an action in replevin. The plaintiff by this proceeding seeks to recover possession of certain property seized by the defendant under an execution issued at the instance of the defendant against her husband. She claims the right to the property upon the ground that she is the owner of the property. The claim of the defendant is that the property does not belong to the plaintiff. 2. Onmership to he first determined. Your first inquiry, therefore, will be as to the ownership of this property. If the plaintiff is the owner of this property then the defendant could not legally seize it upon execution to satisfy a claim against her husband, and you should find by your verdict that she is entitled to the possession of the property. 3. Value of property. If you find that the plaintiff is the owner of this property, you will next proceed to determine the value of the property. In so doing it will be your duty to determine from the evidence the market value of the property REPLEVIN. 2035 as it stood at the time it was taken. The rule is, what was tho market value of those goods at that time and place. That is what It would have cost the plaintiff to have replaced them with other goods of the same kind and quality. The value may be arrived at by deducting from the market value of new goods a reasonable sum for the depreciation in value resulting from the wear and use of the goods. Upon this question certain iNit- nesses have given their opinions as to its value. The purpose of this testimony is to aid you in arriving at a correct conclu- sion as to its values. 4. Damages—If finding for plaintiff. You will also, if you find for the plaintiff, fix the damages sustained by her by reason of the unlawful taking and detention of her property. In doing so, you may take into consideration the effect of the taking upon her business. This does not mean that you shall speculate upon the amount of profit which it might seem probable she could have realized from the conduct of her business, but you may allow such sum as in your judgment would be the reasonable value of the use of such property to the plaintiff in the business in which she was engaged for the period of time she has ])eeu deprived of its use by virtue of its taking by the defendant under the bond in this case. If you find for the plaintiff, in fixing the value of the property taken, you will deduct from the total value of all tlie property taken the value of such portions of it as you fiud was returned to the original owner or owners upon the order of the plaintiff in this case, if you find as a matter of fact that any of tlit- i)rop- erty was so returned. If you find for the plaintiff you will assess the value of the property taken and the dameges for its taking and detention separately. 5. Damages — If finding for defendant. If you find for tlie defendant, he will be entitled to recover the damages he has sustained by reason of the unlawful taking and detention of tho property by the plaintiff in replevin from lln- officer. That is, you will allow him as damages such sum as in your judgment 2036 INSTRUCTIONS TO JURY. will compensate him for the loss sustained by him in being deprived of the property for the time it was held by the officer, who took it under the writ of replevin from the officer who held it under the writ of execution ; that is, for the time which inter- vened between the taking in replevin and the return to the officer under the counterbond. If you find for the defendant he will be entitled to nominal damages for the unlawful seizure and whatever actual damages, if any, the evidence will show he has sustained. By nominal damages I mean one cent, or five cents or some trivial sum. If you find for the defendant you need not assess the value of the property.^ 1 Gordon v. Logan, Constable, etc., et ah, Com. Pleas Court, Franklin Co., O. Bigger, J. Sec. 2241. Conclusion of charge in replevin. 1. When bond given hy plaintiff. 2. When bond given by defendant. 1. When bond given by plaintiff. The plaintiff having given a bond in replevin for the property pursuant to statute, the property has been delivered to him. Hence, if the jury find that the plaintiff is the owner of said property (or has an interest therein) and is entitled to the possession thereof, the jury shall determine and assess adequate damages to the plain- tiff for the illegal detention of said property. But, if the jury find for the defendant, the jury shall find whether the defendant had the right of property, or the right of possession only to said property, at the commencement of the suit; and if the jury find either the right of property or of possession in the defendant's favor, the jury shall assess the value of such property, or of his interest therein as the case may be, and shall also assess to the defendant such damages as they think are proper for the taking, detention, and injury to said property. (See G. C, sec. 12056.) 2. When bond given by defendant. In the replevin proceed- ing the defendant has given bond for the property, and the REPLEVIN. 2037 said property has been returned to the defendant after it was replevined by the sheriff. Hence, if the jury find that the plaintiff is the owner of said property (or has an interest therein) and is entitled to the possession of said property, the jury shall find and assess the value of said property (or of plaintiff's interest therein) and shall also assess adequate dam- ages to the plaintiff for the illegal detention of said property. But, if the jury find for the defendant, the jury sliall also find whether the defendant had the right of property, or the right of possession only to said property, at the commencement of the suit, and if the jury find either in the defendant's favor, the jury shall assess to the defendant such damages as they think are proper for the taking, detention and injury to said property. Sec. 2242. Replevin — ^Annual products of the earth. Those products of the earth whicli are annual, and are raised by yearly manurance and labor, and essentially owe their annual existence to the cultivation by man, termed "emblements" and sometimes ''fructus industriales," while still annexed to the soil, are treated as chattels, with the usual incidents thereof and are subject to replevin.^ 1 Sparrow v. Pond, 49 Minn. 412, 16 L. R. A. 103, 32 Am. St. 571. Sec. 2243. Growing fruit — Whether personalty under any cir- cumstances. Crops of fruit growing on trees, whether regarded as f nidus naturales [natural fruits] or fructus industriaUs [ Tniits of industry] are in general parts of the realty, and unless reserved go with the realty in its transfer.' IT tlie |.ui|.<)s.> of planting is not permanent enhancement of llw land itself, but merely to secure a single crop, which is to 1h' the sole ret urn for the labor expended, the product naturally Talis undti- tlir head of emblements, and is personal property.- But by the acts and intention of an owner of land eonlaming bearing fruit trees and growing fruit may l»e eonverled into 2038 INSTRUCTIONS TO JURY. personalty, and be treated as such by parties in their contrac- tual relations. Where, therefore, an entire crop of growing [oranges] is sold by the owner of the land and the purchaser has the right to take them from the trees, they may be regarded as personal chattels, and an unlawful detention of the possession may be adequately remedied by replevin.^ 1 Simmons v. Williford, 60 Fla. SoO, 53 So. 452. Am. Ann. Cas. 1912, C. p. 735. 2 Sparrow v. Pond, 4!) Minn. 412, 16 L. R. A. 103, 32 Am. St. 571. 3 Simmons v. Williford, supra, and note for other cases. Purner v. Piercy, 40 Md. 212, 17 Am. Rep. 591 (Peaches); State v. Fowler, 88 Md. 601, 42 L. R. A. 849, 71 Am. St. 452 (Peaches) ; Smock V. Smock, 37 Mo. App. 56 (Apples, etc.); Doty v. R. R. Co., 136 Mo. App. 254 (Apples). See 77 Cal. 239. Sec. 2244. Replevin of property by vendor when vendee was insolvent and did not intend to pay for same. The questions for your consideration and determination are : 1. "Was plaintiff at the time of the commencement of this action the owner of, and entitled to the possession of the i)roperty described in the petition or any part thereof ? 2. Wliat was the value of said property at the time of the commencement of this action? 8. Did the defendant, II., assignee, unlawfully detain from plaintiff tlie possession of said property or any part of it ? 4. If he did so unlaAvfully detain said property, how much, if anything, were the plaintiff's damages by reason of such un- lawful detention? In detennining the questions in this case it is important for you to consider the financial condition of W. at the time of the giving of the order to the plaintiffs in this case, for the shipment of the goods and his financial condition at the time of the ship- ping and receipt of the goods. * * * ji\^ financial condition before and after the date of the orders and the shipment of the goods is not conclusive as to his financial condition at the time of giving the order before shipping the goods, but evidence upon that point may be considered for the purpose of determining his condition at the time of giving the order, and at the time of the shipping and the receipt of the goods. REPLEVIN. 2039 If you find from the evidence that W. at the time of giving the order for the goods that were shipped and received on and after , 19 — , had sufficient property to pay all his debts in full, then there would be no fraud in ordering or purchasing other goods. But if you find that he had not sufficient property to pay all of his debts in full, then it will be important for you to consider and determine whether he was able to pay his debts and liabilities as they matured or became payable. Again, was W. in such a financial condition as to be able to pay, or have a reasonable expectation that he could pay for the goods pur- chased of the plaintiffs on or after , 19 — , wlien the l)ills therefor became due and payable? You are instructed, as matter of law, that the intention on the part of the purchaser of goods not to pay for them, existing at the time of purchase and concealed from the vendor, is such fraud as will vitiate the contract. But on the other hand, where no such fraudulent intent exists, the mere fact that the purchaser lias knowledge that liis debts exceed his assets, though the fact be unknown and undisclosed to the vendor, will not vitiate the purchase.^ Therefore, a contract of purchase where the purchaser fails to disclose his known insolvency, whether it is fraudulent or not, depends on the intention of the purchaser, and whether that intention was to pay or not is a question of fact for the jury to determine. While it may be said that fraud must be proved, and will not be presumed, there is a presumption that every reasonable person anticipates and intends the ordinary and probable consequences of known causes and coiulitious. Hence, if the purchaser of goods has knowledge of his own insolvency, and of his inability to pay for them, his intention not to pay may be presumed. An insolvent purchaser without reasonable expectation of ability to pay may l)e presumed to intend not to pay. In determining the question as to whetlier or not llie said W. had a reasonable expectation of liis }il)ility to pay for the goods when they became due and payable, it would be proper for you 2040 INSTRUCTIONS TO JURY. to consider whether a man of ordinary business ability, situated as he was, could have reasonably expected to meet the obliga- tions as they became due. It would be proper for you to con- sider whether the said "W. on and after , 19 — , at the time of ordering and receiving said goods, honestly believed and expected, and from his financial condition had reasonable grounds for believing that he could pay for the bills as they became due and payable. The said W. was permitted to testify as to what his intentions were when he gave the order. This evidence was permitted to be given to you for your considera- tion in determining what his real intentions were, but it is not conclusive ; you should consider it in connection with all the other evidence, and from it all say whether the said W. at the time he gave the order intended to pay for the goods, or had a reasonable expectation of being able to pay for them.^ 1 "A contract for the purchase of goods on credit, made with the intent on the part of the purchaser not to pay for them, is fraudulent; and if the purchaser has no reasonable expectation of being able to pay, it is equivalent to an intention not to paj". But where the purchaser intends to pay and has reasonable expectations of being able to do so, the contract is not fraudulent, although the purchaser knows himself to be insolvent and does not disclose it to the vendor, wlio is ignorant of the fact." Talcott v. Henderson, 31 O. S. 162; Wilniot v. Lyon, 49 O. S. 296. '-^ Nye, J., in Childs, Groof «Sc Co. v. Harvey Musser, Summit Co. Com. Pleas. Sec. 2245. Effect of mortgage given upon goods fraudulently bought. Where a person fraudujently purchases goods and executes and delivers to a third person a chattel mortgage upon the property which he so acquires, the sole and only consideration of which mortgage is a debt then existing, and that no new consideration was paid at the time of the execution of said mortgage, .such pre-existing debt is not such consideration as would constitute such mortgagee a bona fide purchaser of said goods. If the only consideration for the making of such mort- gage was a pre-existing debt, then such mortgagee would acquire REI'LEVIN. 2041 no greater title and right in the property so procured by fraud than would a fraudulent purchaser.^ 1 Modeled from charge given by Xye, J., in Childs, Groof & C<>. r. Mussir. Sec. 2246. Chattel mortgagee may prosecute action for re- plevin — ^When mortgage attacked as fraudu- lent. You are instructed that as matter of law ' ' where a mortgagor of personal property by the terms of the mortgage retains the possession of the property until the condition is broken, but with the express stipulation that if the mortgagor should com- mit any waste or nuisance, or attempts to secrete or remove tlie property, the mortgagee should be authorized to take immediate possession thereof; and before the condition ])roken, executions were levied upon the property at the suit of other creditors of the mortgagor under which said officer was about to remove said property from the possession of the mortgagor and sell the same to pay said executions, the mortgagee might obtain replevin for the recovery of said personal property."' Apply- ing these principles to this case, if you find that the plaintiff loaned to the said B. the sum of $ , and to secure tlie payment tliereof the said B. executed and delivered to tin- plaintiff in good faith a chattel mortgage on the said i)roperty in order to secure said money, and that the said mortgage had been filed and refiled in accordance with the law, so as to create said mortgage a valid lien upon said property at tlie time of the commencement of this action; and you t'uitlier liiul by the terms of said mortgage that said B. retained the pdssessiou of the property until condition broken, or until the (h-bt became due, but with an express stipulation that if the said mortgagor committed any waste or any nuisance, or attcmpte.l to secrete or remove the property, the mortgagee, B.. shniil.l be aulhnri/.er of her husband, whose claims arose while the i)ropcrty was so held and who relied upon such apparent owncrsliip and tith- in her husband. (21 Cyc. 1399, n. 79.) If \h. crclifr di.l not rely upon such apparent ownership of title llu-n. <.f .-oursr. Ilie wife could hold them. It is essential, to estop her, Ihat the person must know of this situation and must have relied upon it before the wife can be estopped. 2048 INSTRUCTIONS TO JURY. G. Wife estopped hy fraudulent purpose and conduct of hus- band to avoid execution against his property if she has knmvledge and participates therein. And again, if the wife has knowledge of a fraudulent purpose of her husband in taking and holding the farm on which they live, and which he in fact owns, in the name of another to avoid its seizure by an execution creditor, the law will charge her with the same consequences arising from such fraudulent purpose as it will her husband, if she in any wise undertakes to aid him in his fraudulent purpose in any wise in respect to any of his property, personal as well as real, and she will be estopped from asserting a claim to any personal property as to which she may assert a claim of ownership of the circumstances are such as to justify the inference in the minds of the jury that she is attempting to assert a claim to defeat a creditor of her husband. 7. Creditor of husband must have knoirledge of and rely upon apparent possession and oivnership by husband. The court has given you the various rules of law attaching to the conduct of the plaintiff in connection with the purchase of the property and its care and possession as the jury may find it to be. If by its application to the evidence — that is, if by the application of the law to the evidence in this case you find that though plain- tiff may have bought and paid for the hogs, but that by reason of her conduct concerning the same, that because of the manner in which the same were kept and maintained, that S. dealt with her husband in reliance upon the apparent possession and right to the chattel property on the farm, and that he believed that her husband owned the property, and if the wife, the plaintiff, had knowledge of a fraudulent purpose on the part of the hus- band in keeping the title to the farm in the name of another person, she is chargeable in law with knowledge that such con- duct on his part will tend to deceive her husband's creditors, and with such knowledge she will be estopped from claiming ownership to the personal property by reason of her conduct. 8. Wife must act with diligence in asserting her rights when creditor of husband levies execution. If under such circum- REPLEVIN. 2049 stances a creditor of her husband takes judgment against him and execution is levied upon personal property, a part of which she claimed, under such circumstances good faith and fair deal- ing requires that she shall act with reasonable diligence in the assertion of her rights in order that she may protect innocent persons who may become bidders at the sale as well as the execu- tion creditor. The law charges every person with knowledge of the law ; because the ordinary person may not know his legal rights, it is incumbent upon him or her to take proper steps to learn and know what they are. The statutes of this state describe a convenient, precise and exact remedy for the protection of the rights of a person who claims ownership of personal property upon which execution is levied. It is provided that when a constable levies on property which is claimed by a person other than by the one against whom the execution issued— that is, claimed by someone other than the husband in this case— the one who claims the title,— the wife in this case,— shall give three days notice in writing to the plaintiff of his or her claim, which shall be tried before some justice at least one year prior to the time appointed for the sale. Sec. 10371. If the justice finds that the property levied on belongs to the one claiming it, that is, to the wife, and not to the person against whom the execution runs— that is, the husband— then that dis- poses of the case and protects the rights of all interested persons as well as the one who claims lie does own the property. Sec 10372. In other words, plaintiff could within a few .hiys aft.T h'vy have had a trial of the right of property as betwe-,, h,-rsrll Mnd S., a judgment creditor, so that in sueh cas.- nnlhrr Ih. .-.m- stable nor any purchaser would suffer any loss. 9. Alternative verdicts. The jury u.ay .-onsul.T h.r .-oM.lurt in failing to take steps to recover llu" pn.p.rly fn.n. th- .-on- stable in pursuance of the statutory ren.edy ......tmn...!. logeth-r with all of her acts and conduct, and if on the whole, you h.ul 2050 INSTRUCTIONS TO JURY. that in good conscience she is estopped from claiming the prop- erty, your verdict should be for the defendant. If, however, you find that the property belonged to the plain- tiff at the time of the levy and that she is not estopped from claiming title thereto, you will proceed to award her such dam- ages according to the reasonable value of the property at the time of the levy of the execution. Under the statutes of replevin this action proceeds as one for damages, as the hogs are not now in existence, and the jury will therefore award plaintiff such damages as will fully compensate her for the property. But, if you find that plaintiff did not have the title, or having the title that she was estopped by her conduct as against the judgment creditor and the defendant, as purchaser on execution sale, your verdict should be for the defendant.^ 3 Ross V. Nedds, Franklin County, Com. PI., Kinkead, J. CHAPTER CXXXII. ROBBERY. SEC. SEC. 2247. Instructions in charge of 2248. Taking property in presence robbery. or under the inuiiediato 1. The charge in the indict- control of another. ment. 2249. Conspiracy to rob. 2. Burden — Degree of proof 2250. Conspiracy in commission of — Etc. robbery. 3. The statute. 2251. Character of evidence essen- 4. Force and violence. tial to prove conspiracy. 5. Intent. 2252. Liability independent of con- 6. Anything of value. spiracy. 7. Possession of property in 2253. Assault with intent to rob — defendant. Violence concomitant 8. Charge includes assault with the taking. and battery. Sec. 2247. Instructions in charge of robbery. 1. The charge in the indictment. 2. Burden — Degree of proof, etc. 3. The statute. 4. Property taken in two ways. 5. Force and violence. 6. Intent. 7. Anything of value. 8. Possession of property in defendant. 9. Charge includes assault and battery. 1. The charge in the indictment. The indictmont cliarpos that the defendant on the , in the fouiity of jiikI state of Ohio, unlawfully and forcibly did iiinkc ;m iissaiilf nixxi one , and did unlawfully, forcibly, by viob-ncc ;iti.I put- ting him, the said , in fear, take from bis person, and against his will, certain property, to-wit: [describe it], and 2061 2052 INSTRUCTIONS TO JURY. that defendant did steal, take and carry away, with intent to steal the same. 2. Burden — Degree of proof. To warrant the jury in find- ing defendant guilty you must find beyond a reasonable doubt the existence of the essential elements necessary to constitute the crime of robbery, and the burden is upon the state to prove the same, etc., etc. 3. The statute. The statute with reference to this crime pro- vides as follows: "Whoever, by force and violence, or by put- ting in fear, steals and takes from another, anything of value, is guilty of robbery." [Code, sec. 1232.] 4. Property taken in two ways. The .jury is instructed that the crime may be committed in either of two ways. 1. It may be done by taking anything of value from the person of another, by force and violence; or, 2. the property may be taken from the person of another by putting him in fear. 5. Force and violence. To constitute the crime of robbery by force and violence it must appear that defendant used force and violence in taking the property from the person of at the time of the taking, or concomitant therewith. The force and violence used in taking the property from the person of another may be actual or constructive. That is, the power of the owner to retain possession of his property may be overcome by actual violence physically applied, or by putting him in such fear as to overpower his will. 6. Intent. The taking of the property, to constitute robbery, must have been taken Avith felonious intent; that is, it must be made to appear that defendant took the property as charged from the person of with the intent to unlawfully convert it, or to appropriate it to his own use, and to deprive him of his property. 7. Anything of value. The property, to be within the mean- ing of the statute as being anything of value, must be money or personal goods and chattels. It is sufficient if it is of any value ; it does not matter whether it is of much or of little value. ROBBERY. 2053 8. Possession of property in defendant. If the jury find that the property, to-wit: , which was feloniously taken from the person of , as charged in the indictment, was found in the possession of such property; and if defendant has not given a satisfactory explanation of his possession of tlie same, you may consider such fact of his possession of the property in connection with all the other facts and circumstances, as shown by the evidence, for whatever worth or bearing it may have in your judgment on the question of his guilt or innocence. [Methard v. State, 19 0. S. 363, 3 C. C. 551, 17 C. C. 486.] See charge, ante, sec. 1856. 9. Charge includes assault and battery. The offense of rob- bery charged in the indictment, includes also the crime of assault and battery. Hence, if the jury finds that the defendant is not guilty of the crime of robbery, but is guilty of assault and battery, then you may return a verdict for assault and battery. An assault is any unlawful physical force, creating a reason- able apprehension of immediate physical injury to a person; an intentional attempt by force to do an injury to another. A battery is committed when the violence is actually used upon the person. The slightest touching of another in an angry, rude or insolent manner is battery. Sec. 2248. Taking property in presence or under the imme- diate control of another. The jury are instructed that "in order to consummate the offense (of robbery) it is not necessary that the property should be actually taken from the person of R. I\I., the individ'ial named in the indictment. It is enough if the property w,is in his presence and under his immediate control, and he was put in fear by the defendant, and whil.st tin; property was .so in liis presence, and under his immediate control ; and he lal)oring under such fear, the property was tjikm by the (IrrciKJanl.' 1 Turner v. State, 1 0. S. 424 and cases cited; lUsliop's Cr. Law, sec. 075; Wharton's Cr. Law, sec. 1696. 2054 INSTRUCTIONS TO JURY. Sec. 2249. Conspiracy to rob Now, to apply these principles of law to the present case. If you find from the evidence that the defendant here on trial and others combined and agreed among themselves to commit an assault upon the person of H. N. with the intent to rob him, and in pursuance of that combination or agreement this defendant was present, aiding, abetting, or encouraging said assault, and that this defendant, or such other persons as have made such combination or agreement, carried out the purpose of said combination and agreement and committed the offense agreed upon the person of said H. N., all who were present aiding, abetting, and encouraging said unlawful purpose would be guilty of the act there done. Again, if you find from the evidence in this ease that the defendant here on trial and one or more other persons combined or agreed among themselves to commit an assault upon and rob II. N., and that, in pursuance of said combination or agreement, said persons did assault and rob II. N. as charged in the indict- ment of all such persons who were present, aiding, abetting, and encouraging, would be guilty of the offense thus agreed upon and committed, and this defendant was a member of said agreement and combination, and was present, aiding, abetting, and encouraging in said robbery, he would be guilty of the crime there committed. If is not necessary that the defendant on trial, himself actually assaulted and robbed H. N. (if you find that he was assaulted and robbed), because if you find that the defendant was a member of the combination and agreement, that some other person or persons did themselves in fact assault ' and rob H. N., in pursuance of such agreement or combination for that purpose, and the defendant here was present, aiding, abetting, and encouraging the act, then he would be guilty.^ 1 Nye, J., in State v. Dedrick, Loiein Co. Com. Pleas. Sec. 2250. Conspiracy in the commission of robbery. It is claimed by the state that the defendant, C. D., here on trial, and others united in the common purpose of robbing H. N., ROBBERY. 2055 and that said purpose was carried into execution. Such a com- mon purpose is in law called a conspiracy. This defendant denies that he had any such purpose or intent, and denies that he, or he with others, assaulted II. N. with the intention of robbing him, or with any other intention, and denies that he, or he with others, took any money, goods, or property from the said H. N. Now you are instructed as a matter of law that: "Wlien several persons unite to accomplish a particular object, whether they collectedly put each liis indi- vidual hand to the work, or one doing it, the others lent the aid of their wills, not in the way of mere pacific desire, but of active co-operation, the persons thus uniting are all and several responsible for what is done. ' '^ 1 Bishop's Crim. Law: "If several, combining both in intent and in act, commit a crime jointly, each is guilty the same as if he Imd dono the whole crime." 1 Bishop's Crim. Law, sec. 630, and, "all who by their presence countenance, or encourage in tlie commission of the crime, are liable as principal actors." 1 Bishop's Crim. Law, sec. 632. But, "if two or more persons are lawfully togetlier and any one of them commits a crime without the concurrence of tlie others, the rest are not thereby involved in tiie guilt." 1 Bishop's Cr. Law, 634. And, "if two or more persons are unlawfully to- gether, and one of them commits a crime without the concurrenco of the others, the rest are not thereby guilty." "Also if several persons are by concurrent understanding in the actual perpetra- tion of the crime, and one of them, of his sole volition, and not in pursuance of the main purpose, does another criminal thing which is in no way connected with what was mutually contem- plated, he alone is liable." Sec. 2251. Character of evidence essential to prove conspiracy. The combination or conspiracy may be shown either by direct testimony or by circumstances and conduct. Evidence in the proof of the conspiracy will generally, from the nature of the case, be circumstantial.' Tliougli common design is the essence of the charge, it is not iie<'es.s;iry to prove that the defendant "and others" came together and actually agreed in terms to have that design and to pursue it by common means. If it is proved that the defendant "iind others" pur- sued by their acts the same object, by the s;ime means, so jus to 2056 INSTRUCTIONS TO JURY. complete it with a view of the attainment of the same object, the jury would consider such evidence to determine whether all were engaged in the conspiracy to effect that object. But, if the defendant was present when H. N. was assaulted and robbed (if such you find to be a fact), and the offense was committed without any agreement or combination with him, and without his knowledge and consent, then he would not be guilty, unless he take some part in the assault and robbery. The mere presence of the defendant when the assault and robbery was committed upon H. N. would not make him guilty. If you find from the evidence that the defendant here on trial and others were at the place of the alleged offense, and that the defendant and others with whom he was associated were there engaged in a common purpose of robbing H. N., and that, in pursuance of said engagement, the said H. N. was in fact robbed, then all who were there, aiding, al)etting, and en- couraging in said common purpose would be guilty of tlie offense there committed in pursuance of said common purpose.^ 1 3 Greenleaf's Ev., sec. 93. 2 Nye, J., in State r. Detlrick, Lorain Com. Pleas. Sec. 2252. Liability independent of conspiracy. But, gentlemen of the jury, independent of any combination or agreement, if you find from the evidence that has been given to you that the defendant made an assault on H. N., and took from him by force or violence, or by putting in fear, as has been heretofore explained to you, any money of any value, then he would be guilty for his own acts. Every person is responsible for his own acts, and if there was no agreement between the defendant and any other person, or persons, he would be indi- vidually responsible for all that he did on that day, if you ean find that he did anything. Sec. 2253. Assault with intent to rob — Violence concomitant with the taking. The jury are instructed that the crime of robbery can not be committed unless there has been some force or violence, or EOBBEBY. 2057 putting the person alleged to have been robbed in fear. The offense may be committed by putting in fear without any force or violence, or without putting in fear, but by force or violence. There being no putting in fear, violence is then an essential ingredient in the crime. Violence, in order to constitute an assault with an intent to rob, must be concomitant with, and not subsequent to, the attempt to take the property. If you find that the accused had abandoned his attempt to take the prop- erty, and there was a struggle in order to avoid arrest, liowever violent this struggle may have been, it did not characterize the act as an attempt to rob.^ 1 Hanson v. State, 43 0. S. 376. CHAPTEEi CXXXIII. SALES— WARRANTY. SEC. 2254. 2255, 225G. 2257. 2258. 2259. 2260. 2261. 2262. 2263. SEC. Sale, when complete. 2264. What constitutes valid sale — Fraudulent contract. Sale on credit. Representation as to finan- cial condition invalid- 2265. a t i n g — Insolvency of buyer intention — Persons presumed to anticipate probable consequences of 2266. known conditions. What language constitutes warranty in sales. 2267. Buyer having opportunity to inspect — Caveat emptor 2268. — Rule applies unless ex- press or implied war- ranty. 2269. Recoupment of damages where vendee has used property under warranty as to 2270. quality. Notice of rescission, when necessary. Sale through mistake may be rescinded in action for purchase price when. Whether delivery to mill a sale. Action to recover purchase price on sale — When article unsuitable for use — Must be rescission and tender back. Acceptance and continued use of thing sold after knowl- edge that it will not work. Fraud and deceit in sale of property — Parties deal- ing on an equality. Same continued — Opportunity of inspection. Same continued — WTiat com- mendations may be made — Dealers talk. Expression of opinion as to amount, value, and qual- ity. Broach of warranty in sale of horse. 1. Express warranty defined" 2. Statement of opinion. 3. Opportunity for inspection and examination. 4. Measure of damages. Sec. 2254. Sale— When complete. "All that is necessary to pass property is that the huyer and seller agree. If one who has a long course of dealing ^^dth another have a correspondence in regard to certain specific prop- erty, nearer to the purchaser than to the seller, and more prop- erly, hy reason of their business relations, in the control of the 2058 SALES — WARRANTY. 2059 purchaser, and they agree, one to buy and the other to sell, the sale is complete just as soon as they agree, and the seller charges the buyer, and the buyer credits their respective books with the price of the property."^ 1 Robinson v. X. H. L., 6 Neb. 328, 332. Sec. 2255. What constitutes valid sale — Fraudulent contract. The rights of the parties in this case depend upon whether or not there w'as a valid consummated sale by K. to II. ; a sale is not consummated simply by transmitting the possession of the goods from the seller to the purchaser; tliere must have been another condition, namely, title of goods ; the right of the property therein must also have passed from the seller to the buyer; unless this ownership of the goods, as well as the possession thereof, passed from the vendor to the vendee, there was no consummated sale and the ownership remains in the vendor. Wliether or not the title to the right of the property, the ownership of the goods passed, depends upon the existence of a legal valid contract of sale made between the vendor and the vendee ; for although possession may be transferred by exchange from one to another, yet title and ownership changes only by the operation of the law, through the medium of the valid contract.; a valid contract being an avenue through which ownership can pass. An invalid or fraudulent contract will not be recognized by the law as of any potency, or as a means to carry the right of ownership from one to another. * * * Where a sale is inadf for cash, the goods being delivered simultaneously with the payment of the price, both seller and buyer in that inst^ince has received what he bargained for, the one giving the goods and the other receiving their equivalent in cash, so that each has all the benefit which can accrue to him from sale, and eaeh has performed every obligation which his duty under the sale requires; the contract is complete and valid, and title to pos- session has passed.^ 1 Wright, J., in Knij^bt & Co. v. HopkinB, iramilton Co. Com. Pleas. Talcott V. Henderson, 30 O. S. 162. 2060 INSTRUCTIONS TO JURY. Sec. 2256. Sale on credit. But in the case of sales made upon credit the conditions are different; there no cash passes from buyer to seller, although possession of the goods is given; the seller relies not on the equivalent in value already received, but trusts to obtain it in the future. This trust is based upon and grows out of those things which influence the mind of the seller at the time he parted with his goods; and if the statements or conduct of the buyer were things which influenced the mind of the seller in giving the credit, then his statements and conduct must be fair and true, because if they are false and fraudulent, and the seller has relied upon that which does not exist, there can be in that case no mutual understanding or contract which can serve the principles of transferring title and ownership ; there is no valid contract of sale, the ownership remains still in the original proprietor and he may take the goods back, even though the other has possession thereof. * » * In sales upon credit the mere fact that the seller has gotten a bad bargain, or is mistaken in what he thought was the buyer's financial responsibility does not at all entitle him to rescind the sale. If the vendor sells on credit and merely takes his chances then he has bargained for nothing which he has not gotten, and the sale stands, although the buyer never pays. It is only where the seller is misled by the buyer, and is induced to give credit by a false belief which is occasioned by the acts and representations of the buyer that he can rescind the sale and recover back his goods. * * * jf the vendor merely takes his chances and is not influenced by the conduct or state- ments of the vendee, then the sale is valid, and he has no right to replevin the goods; but on the contrary, if credit was given on account of misrepresentations made by the vendee, and it turns out that all such representations were the cause of induc- ing the sale, and they were false and fraudulent, then the sale is invalid and the title does not pass, and they may recover back their goods.^ 1 Wriput. J., in Knight & Co. r. Hopkins. Hamilton Co. Com. Pleas. Tal- oott V. Henderson, 30 O. S. 162. SALES — WARRANTY. 2061 Sec. 2257. Representations as to financial condition invalidat- ing — Insolvency of buyer — Intention — Per- sons presumed to anticipate probable conse- quence? of known conditions. Where a buyer although he makes no statements whatever as to his financial condition, and is not called upon to make any such statement, but intends at the time of making such purchase not to pay for the goods, this will invalidate the saU\ Such conduct amounts to a misrepresentation, because wlien a man goes to buy, a mere offer or attempt to buy carries witli it the inference that the proposed buyer intends to pay for what he is buying whether he expressly promises or not ; but if, in fact, he intends not to pay, then his conduct in offering to buy, wliicli indicates an intention to pay, is false, and inasmuch as the si-IUt would not have sold had he known that the buyer did not intend to pay, he has been influenced by a false belief induced by the buyer, the buyer's conduct is fraudulent, and the sale is void. But in this connection the fact that the buyer is insolvent and does not disclose his insolvency to the seller does not necessarily prove that he intended not to pay when he purchased the goods. What his intention was is for you to determine from all the evidence; intention is the condition of the mind, intangible, invisible, and consequently incapable of direct, positive proof, unless there appears from some outward expressions, but must generally be arrived at by a consideration of the situation, sur- roundings, and circumstances in which the person whose inten- tion is in question is found. And as a rule of proof in such cases, found by experience to be just and wise, the law pre- sumes that reasonable persons anticipate llu' ordinary and probable consequences of known conditions and eonse<,MeMees; hence, if a purchaser of goods has knowledge of his ..wn insolv- ency 'and knows that he will be unable to j.ay for the goods, his intention not to pay shouhl be ,,resun,ed. I'.nf if Hh- pnivhaser does, in fact, intend to pay, and has ivasonabh- expeetat.ons to pay, then the presumption does not arise, and the sale is valid. 2062 i:ri('e 2064 INSTRUCTIONS TO JURY. recover any damages he may have sustained by reason of the breach of warranty. He may recover damages for the difference in value of the goods actually received by him and the value of goods had they been of the quality and grade represented and warranted to be, as well as any trouble and expense incurred by reason thereof.^ 1 Dayton v. Hoogland, 39 O. S. 671, 82 and cases; see 26 0. S. 537, 38. Tender of an animal back is not necessary to recover damages, that is, difference in value. Beresford v. McCune, 1 C. S. C. R. 50. If there is a false warranty the vendee may rescind the contract for the fraud, and restore the goods within a reasonable time. Nelson V. Martin, 105 Pa. St. 229; Freyman v. Knecht, 78 Pa. St. 144; Sparling v. Marks, 86 111. 125. Or the vendee may retain the goods and rely on the fraud in defense. Cavender v. Roberson, 33 Kan. 626; Carey v. Guillovv, 105 Mass. 18; Herfort v. Cramer, 7 Colo. 483, 489. Sec. 2261. Notice of rescission, when necessary. The jury are instructed that the law requires a person who desires to rescind a sale on account of a breach claimed as against the other contracting party, good faith requires that he should give notice of his claim or purpose to rescind when- ever his failure so to do would injure the defaulting party; and that if he willfully keeps silent when he ought to speak lie will be regarded as waiving such default, or as electing not to rescind.^ 1 Leeds v. Simpson, 16 0. S. 321. Sec. 2262. Sale through mistake may be rescinded in axition for purchase price, when. The jury are instructed that a contract of sale made under a mistake as to a material fact may be rescinded by the party sought to be charged as the vendee, in an action by the vendor to recover the purchase price from the vendee. The mere fact that the vendee has given a note for the purchase price of the goods sold does not amount to a waiver of such mistake or prevent him from insisting upon the mistake as a defense, unless he had knowledge thereof, or ought to have known of it. It is SALES — WARRANTY. 2065 very clear that a defendant can claim no benefit of a mistake as to what he ought to have known, or could, by reasonable diligence, have found out. If the defendant, at the time of the giving of the note, knew of that fact, or is justly chargeable, under all the circumstances of the case, with a want of reason- able diligence to ascertain it, and to guard against the alleged mistaken belief, the defense on the ground of mistake fails. In determining this matter of the want of reasonable diligence you may look to and consider what the plaintiff said and in- sisted on in regard to the barrels sold, and you may well con- sider whether if the plaintiffs themselves entertained the mis- taken belief that the barrels were not suitable for oil barrels, if properly glued, and asserted it as a fact, any want of reason- able diligence can justly be imputed to the defendant for having the same mistaken belief. If the defendant acted solely upon the statements or repre- sentations made by the vendor, and the defendant did not have any opportunity to see and inspect the barrels, under sueh cir- cumstances they can not be charged with want of diligence.* 1 Byers v. Chapin, 28 0. S. 300, There is no sale if there has been a material mistake as to their iden- tity. Hawley v. Harris, 112 Mas^s. 32. There is no me<'tinns<'iitali(.ii, iinl.ss you further conclude that it was not iiiateri;il. if you lin.l tliat the representations as to the value of the land were only opinions, only trade talk, then the plaintiff can not recover, notwithsfaud- 2072 INSTRUCTIONS TO JUEY. ing the opinions were not well founded. The law does not assist the purchaser who pins his faith to the exaggeration of the value of property made by sellers of it.^ 1 Pugli, J., in Spencer v. King, Franklin Co. Com. Pleas. Sec. 2270. Breach of warranty in sale of horse. 1. Express warranty defined. 2. Statement of opinion. 3. Opportunity for inspection and examination. 4. Measure of damages. 1. Express warranty defined. Now, gentlemen, it will be nec- essary for the court to define to you what is meant by an express warranty, because it is an express warranty that the plaintiff here relies upon as the ground for his recovery, and a breach of that Avarranty. I will, therefore, state to you the law on the subject of warranty. Any distinct affirmation or assertion of the quality or char- acter of the thing sold made by the seller during the negotiations for the sale which it may reasonably be supposed was intended to induce the purchaser and was relied upon by the purchaser, will be regarded as a warranty, unless accompanied by a state- ment that it is not intended as such, 2. Sfafcmcnt of opinion. A mere statement by a seller of his opinion, which falls short of being a positive affirmation of a fact upon a matter about which the purchaser is to exercise his own judgment, does not amount to a warranty. The test as to whether or not the language used is a mere expression of opinion, or a warranty, is whether it purported to state a fact upon which it may fairly be presumed the seller expected the buyer to rely, and upon which a buyer would ordinarily rely, and upon which he did rely. The mere fact that the purchaser has an oppor- tunity to inspect the property sold, will not relieve the seller if there was a specific warranty covering the defect complained of, but the opportunity to make an examination is to be con- sidered always in determining whether the statement constituted a warranty. SALES WARRANTY. 2073 3. Opportunity for inspection and examination. Where a full and fair opportunity to inspect and examine the thing sold is afforded to the buyer, the rule that the purchaser must beware or that he purchases at his risk applies as to all defects wliieli a reasonable inspection and examination would have disclosed, unless they are covered by clear and express warranties. The rule is where a full and fair opportunity to examine and inspect the goods sold is afforded to the buyer, that he may cheat himself if he sees fit, but the seller must not actively assist him to do so or throw obstructions in the way of a full and fair opportunity to jnspect and examine. When the seller is guilty of fraud by concealing the defect, or the defect is really not discoverable by inspection, the fact of an inspection is not material, and it is always proper to inquire whether the buyer's failure to inspect was or was not due to the seller's persuasion or assurance. When the declara- tions of the seller as to the quality of the article sold are clear and explicit so that there is a clear warranty of quality, the buyer has a right to rely on his, and such warranty is not af- fected by the failure to inspect and examine before making the purchase. The liability of a seller arises from his own mis- representation and is not affected by the want of diligence of the buyer in the matter of inspection, if he relied upon the representations. But defects which are plain and obvious to the purchaser, or which were known to the purchaser at the time of the sale, are not covered by a warranty unless they are expressly referred to as being included in the warranty. Applying the rule to this case, if the plaintiff knew that the mare was wind broken, then that defect would not be covered by the warranty. The same is true as to any defects in either of the horses if you find there was any, which you may find from the evidence was known to the plaintiff at the time of the piirchasc of Hi.- horses by him. A warranty does not (^ovcr such defects as a casual inspection or observation will disclose to the huyer; that is, those defects which are plain or open and obvious to every person. 2074 INSTRUCTIONS TO JURY. When the property is before the buyer, he is presumed to make some use of his senses, and therefore, he is held to have purchased with knowledge of the defects which would be patent to an ordinary observer in the same situation. But, of course, this rule does not apply if the seller used artifice to conceal and does conceal defects which would otherwise be obvious to the purchaser. If the seller does anything to divert the attention of the purchaser from defects, or to mislead him as to defects which would ordinarily be obvious to an ordinary observer, the rule which excludes obvious defects from a warranty will not be applicable. In the absence of an express agreement, a warranty of the condition of property sold relates to the time of the sale. So that if there was a warranty in this case, it related to the time of the sale and could not be made to apply to the condition of the horses in the future. The question is, did they come up to the warranty at the time of the sale, if you find there was a warranty. If they did, that is, if the horses were sound when sold, then there was no breach of warranty because afterwards the liorses may have become unsound. But if the horses were warranted to be sound, and you find that they were not sound, or that either of them was not sound at the time of the sale, then there would be a breach of the warranty unless you find that the only defects which they had were known to the plain- tiff, or were open/ and obvious. Of course, you can only consider such defects as are alleged in the petition, if any are shown to have existed in the horses at the time of the sale. 4. Measure of damages. If you find that the plaintiff is entitled to recover, the measure of his damages will be the differ- ence between what these horses would have been worth if they had been as they were warranted to be, and what they were actually worth as they in fact were. In addition to this, the defendant would be liable for breach of warranty for the reasonable expenses of keeping and main- taining the horses up to the time when the plaintiff discovered they were unsound, and if he offered to return them to the de- SALES — WARRANTY. 2075 fendant and to rescind the contract and the defendant refused to rescind and take back the horses, then the plaintiff will be entitled to recover for the reasonable expense of keeping the horses for a reasonable time to effect a sale. And what would be a reasonable time to effect a sale is a question of fact for the jury to determine from all the evidence before you. And what the reasonable cost of keeping the horses was at that time is also a question of fact to be determined by you from all the evidence.^ J Gould V. Potter, Court of Com. Pleas, Franklin Co., 0. Bigger, J. CHAPTER CXXXiy. STATUTES OF LIMITATIONS. SEC. SEC. 2270a. Revival of debt by promise. 2272. Limitation upon an account^: 2271. New promise to be in writing. Sec. 2270a. Revival of debt by promise. "The promise by which a discharged debt is revived must be in writing, clear, distinct, and unequivocal. There must be an expression by the defendant of a clear intention to bind him- self to the payment of the debt. The new promise must be dis- tinct, unambiguous, and certain. The expression of an inten- tion to pay the debt is not sufficient. There must be a promise before the debtor is bound. An intention is but the purpose a man forms in his own mind ; a promise is an express undertak- ing, or agreement, to carry that purpose into effect, and must be express in contradistinction to a promise implied from an acknowledgment of the justness or existence of the debt."^ iShockley v. Mills, 71 Ind. 292. Sec. 2271. New promise to be in writing. "The jury, in order to take the ease out of the statute of limitations and entitle the plaintiff to recover, must find from the testimony that the defendant has, within the last years before the commencement of this action, made his promise in writing to pay said note (or whatever it may be), or that he has actually paid tliereon some portion of the principal or inter- est thereon within the time aforesaid."^ 1 Bridgetown v. Jones, 34 Mo. 472. Sec. 2272. Limitation upon an accomit. The court further says to you as a matter of law, that where the statute of limitations is set up against an account, each item 2076 STATUTES OF LIMITATIONS, 2077 of the account is barred in six years after the right of action accrued thereon, unless it is taken out of the statute on sonic special ground. Evidence has been given tending to show the dates when the various items of the defendant's account accrued, and if you find from the evidence in the ease that any or all the items of such account accrued more than six years before the commence- ment of this suit, then, in order to prevent the statute of limita- tions running against such items of account, the defendant must show by a preponderance of the evidence in the case that sucli items of account were made as payments upon tlie note in (jues- tion, and was so understood by the parties at the time; and, if you find that these items of account were not made as payments on the note, was not intended to be such by the parties at the time, the account was made and the goods furnished, then tliey would not be credits upon the account, and all items in de- fendant's said account which accrued more than six years before the commencement of this action would be barred by the statute of limitations, unless, as I have said to you, that when they were furnished to the plaintiff's decedent they were to be as credits upon the note, and, if they were, they should be allowed by you.^ 1 Gillmer, J., in McGaughey, Admr., v. Cramer, Trumbull Co. Com. Pleas. CHAPTER CXXXV. STREET RAILWAYS. Passengers, Pedestrians, Vehicles. SEC. 2273. 2274. 2275. 2276. 2277. 2278. 2279. 2280. 2281. 2282. 2283. 2284. 2285. SEC. High degree of care required 2286. of common carrier. Company owes utmost or 2287. highest degree of care to passenger. Duty of, as common carriers and as to cars and appli- 2288. ances. Railway company not an in- surer — Bound not to expose passenger to 2289. hazards — Incidental haz- ards assiuned by pas- senger. 2290. Relation of passenger created on acceptance of fare. Company bound for acts and 2291. improper conduct of em- ployes. Acceptance of person as pas- senger creates relation. 2292. Relation of passenger ceases when he has safely 2293. lighted on the street. Starting car before passenger seated. Injury while boarding car. 2294. Negligence in boarding car while in motion. Boarding car while in motion — Another form. 2295. Injury to one who claims to have attempted to board car at crossing — Where 2296. defense is that the at- tempt was to board while 2297. car moving between streets — A short charge. 2078 Contributory negligence in boarding car. Duty to stop at usual stop- ping places — Passenger on signaling attempting to board before it stops. Duty to stop car long enough to afford passenger rea- sonable opportunity to alight. Duty to assist passenger in alighting — Question for jury. Injury to passenger while leaving car by being thrown from car. Duty to stop car when desired stop communicated to conductor on boarding car. Injury to passenger while alighting from car. Stopping cars for passengers to alight — Duty of con- ductor as to passenger alighting. Injury while alighting from car by catching clothing on car — Duty of pas- senger and company. Ejection of passengers for refusal to pay fare — Transfer ticket. Damages for wrongful eject- ment of passenger. Duty of railway to travelers in streets. STREET RAILWAYS. 2079 SEC. 2298. 2299. 2300. 2301. 2302. 2303. 2304. 2305. 2306. 2307. 2308. 2309. 2310. 2311. Duty to use ordinary care to pedestrian. When motorman may assume that pedestrian will get out of danger. Pedestrian may assume motor- man will use due care. Ordinary care required of person about to cross track at street crossing. Injury to person on track — Duty of motorman — May presume pedestrian will b 6 prudent — Plaintiff may presume company will not be negligent. Relative rights and duties of pedestrians and street cars in streets. Duty of employers when car crossing street intersec- tion where car on oppo- site track discharging passengers. Duty in avoiding injury to children, apparently in- tending to cross street. Duty of parents in permitting children to go in streets. Injury to conductor by being struck by telephone pole while walking along run- ning board of car. [See other subject headings in text.] Injury to passenger while assisting driver of street car. Bound by acts of conductor and motorman in scope of employment. Reciprocal rights of vehicles and street cars. Duty of driver of vehicle as to looking before cross- ing. 2312. Duty of driver to stop vehicle before crossing track when car approaching, when. 2313. Collision between vehicle and street car at crossing. [See further headings in text.] 2314. Injury to driver of vehicle at street crossing. 1. Relative rights of driver of vehicle and street car. 2. Relative duties of each. 3. When driver may under- take to cross track — His duty. 4. Conclusions by jury as to conduct of plaintifT. 5. Duty of company to per- sons crossing streets and track as to speed, control of car and signals. 6. Conclusion of jury as to conduct of defendant. 7. Concurrent negligence of plaintiff. 8. Proximate cause. 9. Directions as to verdict. 10. Traffic ordinance. 2315. Injury to passenger in hired automobile from collision between street car and automobile — By joint negligence of both — .Vc- tion against both. 1. Statement of negligence charged. 2. Neither defendant liable for negligence of other — Both liable if their con- current negligenei* cause injury. 3. Plaintiff nnist be frc-e from negligince— U ii le and burden of proof. 2080 INSTRUCTIONS TO JURY. 2316. 6. 9. 10 11 4. Negligenc e — Duty of motorman and driver of automobile. 5. Reciprocal rights and du- ties of each. Same — Duty as to dis- covery of intent of auto driver to cross street. Directions as to verdict. Duty of driver of auto. Negligence of auto driver not imputable to ])l;iin- tiff. Ordinance as to operation of cars and autos. Statute as to speed of auto. 12. Summary and direction as to verdict. 13. Damages. Street car colliding with auto- mobile stalled on track on dark night. 1. The charge of negligence. 2. Duty of railway company when automobile stalh^d on track on dark night. 3. Same — Duty on discovery of auto on track to use ordinary care. 4. Duty of person in charge of automobile. 5. If auto driver negligent — I'o hold railway com- pany, it must be guilty of new and independent act of negligence. 6. Speed of car — Opinion of witnesses to be received with caution. 7. Form of verdict. 2317. Duty of motorman on meet- ing horse coming in oppo- site direction becoming frightened. 2318. Duty of driver of wagon in crossing track at street crossing — Ordinary care — Look and listen. 2319. Duty of driver of vehicle about to cross track at street crossing — Ordi- nary care required. 2320. Duty of vehicle arriving at street crossing in ad- vance of street car — Has prior right to cross. 2321. Relative rights of street car and driver of vehicle at street crossing. 2322. Duty of motorman to dis- cover vehicle about to cross track and avoid injury. 2323. Contributory negligence of children at crossing. 2.324. Presumption of negligence from collision — Burden cast on defendant. 232."). Prima facie negligence from collision. 2326. When person signals car in- tending to board it is to be treated as passen- ger. Sec. 2273. High degree of caxe required of common carrier. The law requires a high degree of care on the part of a rail- way company toward a passenger, that it will carry him (or her) to destination. This does not mean the highest degree of care, the highest possible degree of care. The measure of high degree of care required of defendant in this case means as high a degree of care as is reasonably consistent with the means at hand for the management of its car. The law requires under all the circumstances disclosed in the evidence in the case STREET RAILWAYS. 2081 would require the railroad company in the inanagenient of its car, that its agents, servants and its employes, the motorman and conductor, should exercise reasonable care, such degree of care as an ordinarily prudent person would have exercised under all the facts and circumstances. Corporations act through their agents. Therefore wliat the motorman or conductor did on the day in question with refer- ence to running the car in so far as its passengers were con- cerned, would be the act of the defendant company.^ 1 Booth, Street Rys., sec. 328. Sec. 2274. Company owes utmost or highest degree of care to passenger. In accepting the passenger for transportation, the defendant company can not be heard to say that it is not liabk' for tlie injuries caused to the passenger by its performance, wliilc the relation exists, unless it has exercised, under all the circum- stances, the highest degree of care and prudence in its nuinage- ment, and in the instrumentalities employed by it, that prudent men in like circumstances usually employ, and commensurate with the hazards ordinarily to be encountered. The ruh' re- quires that it should do everything necessary to secure the safety of its passengers, reasonably consistent witli tlie l)usin('ss and means of conveyance employed in street railway carriage. The law requires the utmost care and skill wliich prudent men are accustomed to use under similar circumstances.' but the rule is not to be pressed to an extent wliicli would make the conduct of the business so expensive as to be wholly imprac- ticable. But the common carrier nuist do all that any one in his position could reasonably do to guard against injury 1o liis passenger, and to provide such facilities and instrumentalities as are required for the safe and prudent carriage of passengers for pay. In the absence of knowledge to the contrary, if the plaintiff acted in good faith, she was entithd t(» prcsiitne that the defendant would not be negligent in the performan f its whole duty to her, and that she would not he expo.seii to any 2082 INSTRUCTIONS TO JURY, hazard that reasonable care and prudence coula fairly guard against.^ 1 7 W. L. B. 187. 2Voris, J., in Dussel v. Akron St. R. R. Co., Summit Co. Com. Pletis. AfBrmed by circuit and supreme court. Company bound to exercise the highest care and foresight for the safety of its passengers consistent with practical operation of road. Traction Co. v. Yarus, 221 111. 641, 77 N. E. 1129; Chicago St. R. Co. V. Palkey, 203 111. 225; Booth, Street Rys., sec. 328. Sec. 2275. Duty of, as common carriers and as to cars and appliances. A common carrier of passengers on street car is required to exercise the highest degree of skill and care which may reason- ably be expected of intelligent and prudent persons engaged in that business, in view of the instrumentalities employed, and the dangers naturally to be apprehended. The carrier is not an insurer of the safety of its passengers, and is not bound absolutely and at all events to carry them safely and without injury. They take the risks of their own carelessness of dangers that could not have been averted by the carrier by the exercise of the degree of care that the law demands. A carrier is bound to furnish and maintain safe cars and appliances, whether old or new, but the employment of the appliances which are in universal and common use can not be said to be negligence, nor can it be said that the mode of con- struction is defective and not reasonably safe, when tlie danger is dependent upon conditions which are the result of the negli- gent conduct of the passenger or the company's servants. A carrier will not be liable for injuries caused by the defect which is of such a character that no prudent man would antici- pate danger from it, and so obscure as to escape observation during a careful daily inspection, and where there is nothing to show how long the defect has existed before the time of the accident. The defendant is not guilty of a breach of its duty, if it secures the best appliances for the conduct, control, and safety STREET RAILWAYS. 2083 of its cars, after due investigation, and subjects the same to the best tests, and has all the machinery of its cars constantly and thoroughly examined; and the fact that one of the appli- ances fails to perform its usual duty going down a hill does not alone prove negligence on the part of the defendant company, provided the company has properly inspected and examined the machinery and tested it before use. The criterion of negli- gence in such cases is not whether the particular defect which was the cause of the injury could possibly have been detected by the use of scientific means of investigation, but whether the defect ought to have been observed practically and by the use of ordinary and reasonable care. * * * It was the duty of the defendant company, before attempting to descend the hill in question with its ear, to know that its tracks over which the ear had to run, and its appliances and machinery for stopping the same were in good order and properly adjusted.^ 1 Gillmer, J., in Klipp v. Trumbull Electric Railroad Co., Trumbull Co. Com. Pleas. Booth on St. Rys., sec. 332. Sec. 2276. Railway company not an insurer — Bound not to expose passenger to hazards — Incidental hazards assumed by passenger. The defendant was not the insurer of the safety of the plain- tiff in taking passage upon its car, but by accepting him as a passenger it bound itself to provide him with a safe transporta- tion to the place of destination, and not to exj)ose liiiu to any hazards that reasonable care and prudence could prev(>nt; mid in taking passage upon the c;ir he look upon liiiiiself the liii/ards incident to passenger transportation upon the defendant's car, when properly managed only; this would include getting on and off the cars. As matter of public policy, the law requires a strict pirforni- ance of the obligation assumed by the public carrier, to those taking passage upon its cars. The defendant can not be heard to say that it is not liable for the injury caused to the pjLssen- 2084 INSTRUCTIONS TO JURY. ger by its performance, while the obligation exists, unless it has exercised under the circumstances that degree of care and prudence in its management that prudent men in like circum- stances usually employ, and commensurate with the ha^iards ordinarily to be encountered. The rule requires that it should do everything necessary to secure the safety of its passengers, reasonably consistent with the means and business of the con- veyance employed in street railway carriage. The common carrier must do all that anyone in the position could reasonably do to guard against injury to its passengers and to provide such facilities as are required for the safe and prudent carriage of passengers for pay.^ 1 Voris, J., in Sourek v. The Akron St. Rj'. Co., Summit Co. Com. Pleas. Booth on St. Rys., sees. 327, 328. Sec. 2277. Relation of passenger created on acceptance of fare. The acceptance of a person as a passenger, and the reception of the usual fare would constitute the relation of carrier and passenger, so that he could not be ejected from the ears of the defendant against his will during the passage for which payment had been made, except for improper conduct on his part. Sec. 2278. Company bound for acts and improper conduct of employees. The passenger rightfully pursuing his ride on the cars of the defendant is entitled to be treated with courtesy, and may not be treated rudely or be subjected to insult by the employees and agents of the company managing the cars, without incurring liability therefor. In general, the passenger carrier is bound liy the acts of the employees and agents in the scope of their employment, and must answer for their negligence, unskillful, or wrongful per- formance in the scope of such employment. In other words, the negligence or improper conduct of the conductors and other employees of the company managing the cars, in the scope of STREET RAILWAYS. 2085 their employment, is the negligence and wrongful acts of the company, for which it may he held liable.^ 1 SteflFee v. The Akron St. R. E. Co., Summit Co. Com. Pleas. Voris, J. Duties of street railway to its passengers. Bootli St. Ry., sees, 326, 327, 328, In Ohio the utmost degree of care and skill ia re- quired, 7 W. L. B. 187, 6 0. C. C. 155. Sec. 2279. Acceptance of person a^ passenger creates relation. The acceptance of a person as a passenger, and the reception of the usual fare, w^ould constitute the relation of carrier and passenger (Booth on St. Rys., sec. 326), so that he could not be ejected from the cars of the defendant company against his will during the passage for which payment had been made, except for improper conduct on his part. A passenger rightfully pur- suing his right on the cars of the defendant is entitled to be treated courteously, and may not be treated rudely, or be sub- jected to insult by the employees and agents of the company managing the cars, without incurring liability therefor.' 1 SteflFee i\ The Akron Street Railroad Co., Summit Co. Com. IMeaa. Voris, J. "The existence of the relation depends largely upon the intention of tho party at the time he enters, or while attempting to enter." Booth, sec. 326. He is a passenger while in the act of getting in tlie oar. 32 Minn. 1, 137 Mass. 210. Tlie relation ceases when the passenger steps from a car upon the highway, 139 Mass. 542, 31 N. E. 39 1. Sec. 2280, Relation of passenger ceases when he has safely alighted on the street. The jury is instructed that when a passenger on a stre(>t car has safely alighted on the street the relation of carrier and pas- senger is terminated.^ lAnn. Cas. 1912, B. p. 863, note. Schley v. R. R., '227 I'a. S(. 4!lt. 136 Am. St. 906; Bootli St. Railways, sec. 326, note, 13 and cases cited. Sec, 2281, Starting car before passenger seated. The jury is instructed that because of tin" |)ulili<- tlciimmls of rapid transportation on street cars, it is not the duly <>r the con- 2086 INSTRUCTIONS TO JURY. ductor to wait until a passenger is seated before starting the car, })ut on the contrary the ear may be signaled to start as soon as the passenger is fully on the car. The ear may be started without waiting for a passenger to reach a seat after entering the same, unless there is some special and apparent reason for doing otherwise.^ 1 Boston El. R. Co. v. Smith, 168 Fed. 628, 23 L. R. A. (N.S.) 890; Ottingcr v. Railway, 166 Mich. 106, 131 N. W. 528, Ann. Cas. 1912, D. 578 and cases cited. As to old man, see Sharp v. R. R. Co., Ill La. 395, 35 So. 614, 100 Am. St. 488: Birmingham R. Co. v. Haw- kins, 153 Ala. 86, 16 L. R. A. (N.S.) 1077. Sec. 2282. Injury while boarding' car. 1. Slatement of claim. The claim of the plaintiff in this case is : That the defendant has not exercised in and about this matter the highest degree of care which was reasonable under all the circumstances, and such as would l)e expected of intelligent and prudent persons engaged in this business. The plaintiff claims that the car came to a stop, and that he stepped upon the foot- board, and before he had time to obtain a seat, the car, unex- pected to him, started; that in so doing he lost his balance, and that he was thrown against one of the seats of the car and in- jured. The defendant claims that the plaintiff attempted to board the car before it came to a stop, and in doing so he received the injury l)y falling against one of the seats of the car, and that the plaintiff was guilty of contributory negligence in thus attempting to board the car, and in not properly protecting him- self in getting on the car at the time and the manner he did, and it claims that it has exercised the highest degree of skill and care which was reasonable under all the circumstances, that would be expected by intelligent and prudent persons engaged in this business, and that, therefore, there should be no recovery. 2. Diify of passenger in hoarding car. It was the duty of the plaintiff in boarding, or attempting to board the car, to use ordinary care in securing a seat, and if he delayed unneces- sarily, and for an unreasonable time by standing on the foot- STREET RAILWAYS, 2087 "board or otherwise, and so contributed to his injury, he can not recover. It. was not negligence as matter of law for the plaintiff to board the car while it was in motion, if you find he did so, yet if he did, he assumed all the risks of the ordinary and usual movements of the car, if operated with the utmost care by the defendant 's employees, and if injured under such circum- stances, he can not recover. It was the duty of the plaintiff at all times while boarding or attempting to board the car, to exercise ordinary care and to make such use of his hands and arms to support himself, while on the footboard and entering from thence into the car, by means of the posts of the car, or other convenient means of support, if such there were, as a person of ordinary prudence, and in the exercise of ordinary care under like circumstances, w^ould have exercised; and if he failed to do this, and so con- tributed to his injury, he can not recover. The court can not say to you that ordinary care required him to take hold of the posts with both hands, or with one hand, or whether, under the circumstances, it required him to take hold of the posts at all or not. The question is for the jury to decide, whether, under all the circumstances of this case, plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances in attempting to board this car. And ihm is also true of the defendant company. The question is left for you to determine whether or not the defendant company exer- cised the utmost care or the highest degree of care in carrying this passenger. If you find the plaintiff got on the footboard of the car while it was at a standstill, and that, while he was standing on the footboard, and before he secured a seat, the motorman in charge of the car started, and in so doing exercised the utmost degree of care, starting it without any sudden jerk, then the court says to you that the defendant was not guilty of negligence, and your verdict must be for the defendant.^ 1 Gillmer, J., in Oee v. Trumbull Electric R. R. Co., Trumbull Co. Com. Pleas. Booth on St. Rys., sec. 348. 2088 INSTRUCTIONS TO JURY, Sec. 2283. Negligence in boarding car while in motion. If the car was slowed up, so that it would be reasonably pru- dent for the plaintiff to attempt to get on, and in the exercise of reasonable prudence and care under the circumstances, he at- tempted to get on and failed, without fault on his part, he would not therefore be charged with contributory negligence; but if he did not so act prudently and carefully, under the circum- stances then known to him, in attempting to get on while the car was yet in motion, then he would be held to have taken the risks of the want of such prudence and care, if voluntarily undertaken and encountered by him. * « * We can not say to you as a matter of law whether or not it was negligence for plaintiff to attempt to board the car while it was in motion, if you find it to have been in motion from the evidence, or with one of his hands or an arm encumbered by his dinner-basket, but we leave it to be determined by you, from all the circumstances given you in the evidence, whether he was or was not guilty of contributory negligence in attempting to get on the car, as the evidence shows he did. But if the car was not in motion, but was stopped to enable him to get on the car, and, while he was so attempting to get- on, it was suddenly started, and before plaintiff had reasonable time to get on board, and the plaintiff was thereby injured, without his fault, then we say to you that the plaintiff would be entitled to recover therefor, if in other respects he is entitled to recover under these instructions given you.^ 1 Voris, J., in Sourek v. Akron St. Ry. Co., Summit Co. Com. Pleas. Booth on St. Rys., sec. 336. Sec. 2284. Boarding car while in motion — Another form. It is not negligence, as matter of laiv, for one to attempt to ho ml such a car as that in qvcstion ^vhile in motion, but the question is one for the jury to decide from the circumstances as it finds them to be from the evidence. If the plaintiff was at the crossing aforesaid, and signaled the car, so that it was or should have been seen, and the speed of the car was thereupon slack- STREET RAILWAYS. 2089 ened, so that when it reached him the car was going so slowly that plaintiff was justified as a man of co.iinion prudence in endeavoring to enter it, he is entitled to recover, although the car did not come to a full stop, if his injury was due to the negligence of those in charge of the car in starting it at a more rapid speed while he was in the act of getting on board, without fault on his part. If plaintiff was standing at said crossing and so signaled, and the ear thereupon either M-as stopped, or so slackened speed, and he was so injured by their fault, and without fault on his part, the fact that his signal was not seen, and such stopping or slack- ing speed was done for some other reason, if such were the fact, would not affect his right to recover. So stopping or so slacken- ing speed, as to justify an attempt to get on board, would be an invitation to enter the car, if those in charge of it knew or should have known that plaintiff so intended, and in that case it was their duty to use proper care to see that the car was not started or its speed increased until he was safe on board. It makes no difference as to plaintiff's right to recover whether the ear started or increased speed suddenly or with a jerk, or otherwise, if its so doing was due to negligence on the part of those in charge of it, which was the cause of plaintiff's injury, without fault on his part. That is, if he was at the erosning and was justified under all the circumstances as a man of ordi- nary prudence, in attempting to ])oard the car as lie did.' iKumler, J., in Mt. Adams & Edoii Park Tn. lly. r. l^cjipanl, S. C;. 2!>27. Judgments affirmed. Bootli on St. l\ys., sec. 330. Sec. 2285. Injury to one who claims to have attempted to board car at crossing, where defense is that the attempt was to board while car moving between streets — A short charge. Negligence in a case like this is the failure to olKscrvc ;i hi^'li degree of care towards plaintid", if you hdicvc liis cl.-iini that he was in the act of boarding the car and bcconiinf: m passenger. If, on the other hand, he attempted to board the car wliilc it 2090 INSTKUCTIONS TO JURY. was running between streets, the only duty that was owing to him by the company was not to willfully or recklessly injure him. 1. When a passenger. The measure of care exacted of a common carrier of passengers is the highest degree of care ; but thai is only owing by such carrier when the person, as in the case of a street car, is in the act of becoming- a passenger. He is to be treated as a passenger when he is»in the act of stepping on the car at a stopping place, as well as when he gets into the car and takes his seat. 2. Duty when persons in act of becoming passenger. The law requires that defendant, as^ a common carrier, exercise a high degree of care for the safety of its passengers when persons are in the act of becoming passengers. The performance of this duty require"d the defendant to stop its car at the stop- ping place a sufficient length of time to enable the plaintiff in the exercise of ordinary care, to board it, if the claim asserted by him is true that he was at the street crossing and attempting to' exercise his right to board the car. The rule can not apply unless he was there in that act. If the greater weight of the evidence proves that defendant did not perform this duty but was negligent and this negligence was the sole cause of the injury to plaintiff, your verdict should be for the plaintiff and you should in such event award him such damages as may com- pensate him for his injury, not beyond the amount he claims in his petition, including medical expenses as alleged by him. 3. Attempt to hoard between streets. The defendant claims that plaintiff himself was guilty of negligence which was the sole cause of the injury to him. It is claimed in evidence that plain- tiff attempted to board the ear between street crossings and while the ear was running. A person has no right to board a street car except at regular stops. So then one who undertakes to board a street car between street crossings assumes all risks incident to such an act. If the jury find that plaintiff did attempt to board a moving street car before it arrived at a street crossing or a regular stopping place, and that he attempted to board the car between the streets while it was in motion, and that such act on his part STREET RAILWAYS. 2091 was the cause of his injury, your verdict should be for the de- fendant.^ 1 Goldforb v. Railway & Light Co., Franklin Co. Com. Pleas. Kinkcad, J. If those in charge of car exercise due care to see or hear tliose who wish to take passage, there is no liability by suddenly starting the car while one is attempting to enter, if tliey do not know that such person was attempting to get on. Booth Street Railways, sec. 348, note 166; Lamline v. R, R. Co., 14 Daly 144; Meriwether v. Ry. Co., 45 Mo. App. 528. Sec. 2286. Contributoiy negligence in boarding moving street cars. Whether or not it is negligence to board moving street cars depends upon the rate of speed at which the car is going. If the plaintiff attempted to board the car when it was moving at a rapid rate of speed, or such rate of speed as made it danger- ous to get on, it was negligence on his part to attempt to board the car when it was so moving, and if that negligence contrib- uted in any degree to his injury, he may not recover, although you may find that those in charge of the moving car were also negligent. If the car was moving either slowly or rapidly, the duty did not devolve upon the driver to stop the car until the plaintiff got on and got into his seat safely. But if the evidence shows that the car was standing still, and especially if at a ]ila(*e where a passenger had a right to get on, or if it was standing still at any place that would give a passenger a right to get on. and the driver saw the plaintiff getting on, it was his duty not to move the ear till he was on and had a reasonable time to take a seat, and if he failed to wait, if the evidence shows to you that the car was standing still, and that he failed to wait until plaintiff boarded the ear, and he saw the plaintiff getting on, then it was negligence on his part, and the defendant company is lia])le for any injuries that may have been caused to him in that manner.* 1 Pugh, J., Franklin Co. Com. Pleas. It is not negligence per se to board a car wliile it is moving slowly. l:J7 Mass. 210, 60 N. Y. 195; Booth on St. Rys., sec. 3.30. The i)PrBon assumes all tlie ordinary risks. Id. The passenger must be given a reasonable time to board the car in safety. Id., bcc. 348. 2092 INSTRUCTIONS TO JURY. Sec. 2287. Duty to stop at usual stopping places — Passenger on signaling attempting to board before it stops. It is the duty of the defendant railway company to stop its cars at its usual stopping places to take on passengers, and for such reasonable time as to give them reasonable opportunity to get aboard, so as not to endanger the safety of the passenger; but where the cars are signaled to stop at other than regular stopping places, the plaintiff would not be justified in attempt- ing to get on the car, until it had fully stopped, unless the plain- tiff was reasonably misled into the belief by the concurring con- duct of the defendant that it would be safe for him under the circumstances to get on board the car while so in motion.^ iVoris, J., in Sourek v. St. Ry. Co., Summit Co. Com. Pleas. See 128 N. Y. 583, 12 N. Y. S. 930. Sec. 2288. Duty to stop car long enough to afford passenger reasonable opportunity to alight. The court can not say to you as a matter of law how long the car of the defendant should have stopped when plaintiff alighted ; but whether the car did stop, or whether it stopped long enough for plaintiff to alight with safety, are matters of fact for you to determine under all the circumstances of the case given you in the evidence. We do, however, say to you that the car ought to have been stopped long enough to give the plaintiff reasonable opportunity to alight in safety.^ iVoris, J., in Dussel v. Akron St. R. R. Co., Summit Co. Com. Pleas. Affirmed by circuit and supreme court. Booth on St. Rys., sec. 347. Sec. 2289. Duty to assist passenger in alighting— Question for jury. What actual assistance, beyond stopping the cars for a reason- able time, the conductor should have given to the plaintiff, if any, we leave as a question of fact for you to determine under STREET RAILWAYS. 2093 all the circumstances developed by tlie evidence ; and you may consider the ordinances of the city, making it the duty of the conductor to assist passengers to alight, in connection with other evidence in the case, giving it such effect as you think it en- titled to. The defendant was not an insurer of the safety of the plaintiff in alighting from the car, but by accepting her as a passenger on its car it bound itself to provide her with a safe car to trans- port her to the place of destination, and not to expose her to any hazard in alighting that reasonable care and prudence could prevent ; and in taking passage on the ear she took upon herself the hazards incident to passenger transportation upon the de- fendant's car, when properly managed, and upon a car competent for the service to which it was applied at the time of the injury.^ 1 Voris. J., in Dussel v. Akron St. R. R. Co. Summit Co. Com. Vle&s. AfBrmed by circuit and supreme court. Booth on St. Rys., sec. 349. Sec. 2290. Injury to passenger while leaving car by being thrown from car. The fact that the plaintiff was injured by either having been thrown or by falling from the car does not, in itself, justify you in concluding that the defendant's emploj'ces were negligent, as charged in the plaintiff's petition. Negligence can not be as- sumed ; it must have been proved by affirmative evidence. (a) Duty of carrier to iise high degree of care towards suck passenger. The defendant, being a common carrier of passengers. wa.s required, through its employees in charge of tlie car. to ex(>roise the highest degree of care which might be reasonably expected of intelligent and prudent persons engaged in the business of running street cars, considering the instrumentalities employed, and the dangers naturally to be apprehended, l^ut the defend- ant was not obliged to insure the safely of the plaintiff as one of its passengers; it was not bound, absolutely, and at all events, to carry him safely without injury.* 2094 INSTRUCTIONS TO JURY. (&) Duty of such passenger — Correlative duty of passenger and carrier. There was also a duty resting upon the plaintiff while he was a passenger upon the defendant's car. It was his duty to exercise that ordinary care and prudence which a prudent man w^ould himself observe to save himself from injury. The degree of care on the part of the railroad company was the highest degree of care and skill ; the degree of care on the plaintiff as a passenger was ordinary care and skill. If he was guilty of negligence, if he did not observe ordinary care, and that con- tributed to his injury, he is not entitled to recover damages from the defendant. If the plaintiff was negligent, and his negligence in any degree contributed to the plaintiff's precipitation or fall from the car, he can not recover. (c) Plaintiff voluntarily leaving car while in motion. Therefore if the plaintiff voluntarily left his place in the car, took his position on the step, and there remained while the car was going at the rate of eight or ten miles an hour, he thereby assumed the risk of any injury which might be caused by the usual or ordinary movements of the car. So, if he voluntarily jumped or stepped off the car while it was going so fast as to render the act dangerous, the fact that the car did not stop at street was no excuse for him to so jump or step off the car, and he was guilty of contributory negligence.^ 3 Booth on St. Rys., sec. 327. 2 Pugh, J., in Cronin v. Columbus Street Ry. Co.. Franklin Co. Com. Pleas. Leaving car while in motion. Booth on Street Railways, sec. 337; Ganley v. Brooklyn City Ry., 7 N. Y. S. 854. Sec. 2291. Duty to stop car when desired stop communicated to conductor on boarding car. The plaintiff does not claim that he signaled, or otherwise informed the conductor just before the car reached street that he wanted the car to stop, but that w^hen he paid his fare he gave him that information. If the conductor was so informed that the plaintiff wanted to get off at street, it was his STREET RAILWAYS. 2095 duty to stop the car so as to give him an opportunity to alight in safety, and if he failed to do that, and it was the cause of the plaintiff's injuries, and if plaintiif's negligence did not con- tribute to them, the company is liable to respond in damages.^ Must have been the proximate cause. If you find that he did give the conductor that information, was the failure of the conductor to have the car stopped the proximate cause, the legal cause of the plaintiff's precipitation from the car, if that was proved; did the plaintiff exercise ordinary care in stepping out on the car steps, before the car stopped, and standing there as he says he did ? If it was not the observance of ordinary care, the question for you to con- sider is, whether that was not the proximate cause of him being thrown, or of his falling from the car, instead of the failure of the conductor to stop the car. If that conduct of the plaintiff was the proximate cause, he can not recover. The failure of the conductor to stop the car must have been the proximate cause to entitle him to recover. It is difficult to make this plain; T mean what is in law proximate cause. His precipitation or falling from the car must have been the natural or probable result of the con- ductor's failure to stop the car, if that was proved. The failure of the conductor to stop the car, if a fact, must have l)ocn tin- direct cause of his injuries, not in point of time, but in n'lation to the plaintiff's precipitation or falling from the car. Hctwt^en the failure of the conductor to stop the car, and tlic i)rccipita- tion or falling from the car, there must have been no interven- ing and independent cause, disconnected with the fault of the conductor to stop the car, and self-operating, which produced the plaintiff's precipitation or falling from the ear. If the plaintiff informed the conductor that he wanted the car stopjjed at street, he had a right to expect that he would stoj) it there so he could get off; but did that authorize him. iu the exer- cise of ordinary care, to go out and get on the step of the car, if that was a place of danger, when the ear was going? Did it authorize him as a prudent man to go out on the stej)'/ If yon 2096 INSTRUCTIONS TO JURY. answer these questions in the affirmative, then you must find for the plaintiff; but if you answer them in the negative, you must conclude that the conductor's failure to so stop the car was not the proximate cause of the plaintiff's precipitation or falling from the car.^ 1 See Booth on St. Rys., sec. 337. sPugh, J., in Cronin v. Columbus Street Ry. Co., Franklin Co. Com. Pleas. Sec. 2292. Injury to passenger while alighting from car. This charge of negligence, in substance, is that after the car had stopped, and while she was in the act of alighting from the step of the car, it was started up before she had succeeded in alighting, and caused her to be thrown to the street and injured in the manner described in the petition. If the car had come to a stop, and while it was standing the plaintiff attempted to alight, and before she had succeeded in alighting safely the car was started up, and such sudden starting up of the car threw her to tlie street and injured her, this would be negligence on the part of the defendant which will render it liable for dam- ages to the extent of her injuries. The court says to you, gentlemen of the jury, that the plaintiff must prove this charge of negligence by the greater weight of the evidence in order to entitle her to recover. The court also says to you that she will not be defeated of a recovery if you should find it to be the fact that the car had not absolutely stopped before she attempted to alight, if it had almost stopped or slowed down to a rate of speed which would enable one to alight from it with reasonable safety, and was suddenly started up again or its speed unexpectedly increased, thus causing the plaintiff to fall to the street — the gist of the complaint being the sudden and unexpected starting up of the car. But the mere fact, if you find it to be a fact, that before the car had stopped, and as it was slowing down to stop, its rate of motion was in- creased, does not amount to negligence as a matter of law, and would not conclusively show that the defendant was negligent. "Whether it was negligence or not, if you find that before it was STREET RAILWAYS. 2097 stopped its rate of motion was increased again, is a question of fact to be determined by you from all the evidence before you, under the rule I have stated to you with reference to the measure of duty owed to the plaintiff by the defendant. The defendant not only denies its negligence, but says further that the plaintiff's own negligence was a direct and proximate cause of her injuries. It is a rule of law as well settled as that with regard to the obligation of the defendant to exercise care for the safety of the plaintiff, that the plaintiff herself was bound to exercise care for her own safety; and if she failed to do so on the occasion in question, and her own negligence was a direct and proximate cause of her injuries, tlien sht> can not recover, even though you find that the defendant was also negligent. Of course, if the plaintiff's injuries were caused solely by her own negligence, she can not recover. If you find that the car was being stopped upon tlie request of the plaintiff, and without negligence on the part of the de- fendant, the plaintiff fell because she attempted to get off while the car was in motion, she can not recover. The defendant has also stated what its claim is with regard to the plaintiff's negligence; and the defendant is also confined in its proof to the plaintiff's negligence stated in ils answer. This negligence is stated to have been that she attempted tn alight from the car after it was being brought to a stop for the purpose of allowing her to alight, and before the car hail conio to such stop. The mere fact that she attempted to alight from the car when moving, if you find that to be the fact, is not eon- elusive evidence of negligence on her part. Wliether it wjus negligence on her part under all the circumstances is a (piestion of fact to be determined by yon from all the evidence m Die case. The duty which the law charged upon her for her own safety was to exercise ordinary care; that is, such cure as per- sons of ordinary prudence are accustomed to exercise under like circumstances and conditions. If she used ordinary care for her own safety, then she was not negligent. If she did not exercise ordinary care for her own safety, and this want of 2098 INSTRUCTIONS TO JUBY. care on her part for her own safety was the sole cause of her injuries, or was a contributing cause of her injuries, she can not recover. As I have said, the defendant has the burden of proving con- tributory negligence ; that is, that the negligence of the plaintiff directly contributed to her own injuries; and if you find that the defendant was guilty of the negligence charged, and that this negligence was the direct and proximate cause of plaintiff's injuries, then to make the defense available that her oa\ti negli- gence contributed to that of the defendant to cause the injuries, this defense of contributory negligence must be proven by the greater weight of all the evidence; but if there is as much evi- dence that the plaintiff's injuries M'ere caused solely by her own negligence as that they were caused by the negligence of the defendant, tlien the plaintiff must fail and your verdict should be for the defendant, for the reason that the greater weight of the evidence must be in favor of the plaintiff's claim that the defendant's negligence caused her injuries; and if there is as much that they were solely caused by her own negligence, then the plaintiff does not have the weight of the evidence on her side. If you find that the weight of the evidence does not prove that the defendant started the car up after it had stopped, or sud- denly increased its speed after it had almost stopped, that will be the end of your deliberations, and you should render your verdict for the defendant. But if you find that the defendant was negligent as alleged, and that its negligence was the direct and proximate cause of the plaintiff's injuries, you will then inquire whether the plaintiff herself was guilty of contributory negligence which directly and proximately contributed to cause her injuries. If you find that the preponderance of the evi- dence proves that she was guilty of contributory negligence, then your verdict should be for the defendant. But if you find that the defendant was negligent as alleged in the petition, and that this was the direct and proximate cause of the plaintiff's injuries, and that the defense of contributory negligence on her part has not been proven, then your verdict should be for the STREET RAILWAYS. 2099 plaintiff, and you will proceed to determine the extent of her damages. These should be in such an amount as will fully com- pensate her for the injuries wkich you may find have directly resulted from the negligence of the defendant. This will in- clude compensation for the pain and suffering, physical and mental, directly resulting from her injuries; and also for any future pain and suffering, if her injuries are of such character as to cause her pain in the future ; also compensation for loss of time, if any, resulting from her injuries during the period when she was disabled, if she was disabled, from pursuing her ordinary avocation; and also for any permanent impairment to her ability to perform labor, if you find there has been any such permanent impairment. If you find that the plaintiff is entitled to recover general damages, she will be entitled also to recover, in addition to her general damages, her expenses actually and necessarily incurred by way of medical attendance and hospital and ambulance serv- ice, and which evidence shows she expended or for which she incurred an obligation to pay, but not in excess of the amount claimed in the petition. But you can not award special dam- ages unless you find that she is entitled to recover general daiii- ages.^ 1 Sheets v. Columbus Ry. & L. Co., Franklin Co. Com. Picas. Big- ger, J. Sec. 2293. Stopping cars for passengers to alight — Duty of conductor as to passenger alighting. If you find from the evidence that in this case the defendant's conductor stopped the car himself upon a notice comnuinicated to him by this plaintiff, and started the car before she had fully alighted, then your verdict will be for the plaintiff. (a) By griponan to receive passenger — Passengrr Imviug car at that time. If, however, you find that the conductor hiiiiscir did not slop the train, but that it was done by some other person on tlir train at the plaintiff's request, or that it was done by the gripnuiu 2100 INSTRUCTIONS TO JURY. in order to receive a passenger from the street, and if, upon the stopping of the car, the plaintiff proceeded to leave it, and in leaving it the train was started without any notice or expecta- tion on her part, and she was thrown to the ground and injured, then it will be for your decision to determine whether the de- fendant was guilty of ordinary neglect which directly caused the injury complained of. (6) Knowledge of conductor of intention of passenger to alight — Duty to look out for departure. If the conductor knew, or had reason to know, that the plain- tiff intended to leave the car when it stopped at the corner, and if you find that at that point the car stopped, it was then the duty of the conductor to look out for her departure, and to wait such length of time as would have enabled him to know that she had not given up the intention of getting out of the car. And if, under such circumstances, he did this — that is, if you find that he had notice, or that he really knew that she wanted to get off at that point, and if you find that he did wait long enough so that he was enabled to determine that she did not intend to get off the car, and yet, notwithstanding what he did, this injury happened, or this thing happened, then there is no negligence chargeable to the defendant, and your verdict will have to be in favor of the defendant. If, however, under such circumstances he did not look for her departure, and did not wait the requisite time already described to you, and if in consequence thereof, and a direct result of it, the car was caused to start, and she was thrown and injured as she claims, then there is negligence as would make the defendant answerable to the plaintiff. If, however, you should find that the conductor did not have reason to know that the plaintiff intended or wanted to leave the train where it stopped at the corner, then you are to deter- mine whether his want of knowledge was the result of any negli- gence on his part, whether it was negligent for him to proceed afterward to the grip-car before ascertaining whether any pas- Bengers intended to get off, or whether it was negligent on his STREET RAILWAYS. 2101 part, in view of the crowded condition of the car, to alistain from working his way through the car towards the front, and if he had done so, whether he could have ascertained that she wanted to leave the car— whether it was negligent for him to do what he did under the circumstances, and if that negligence had a tendency or caused him to remain in ignorance as to her intention. Now, in determining this question of negligence, should you find that he had no notice, or did not know that she was about to leave the car, or intended to leave the car at this point, you can take into consideration whether, if he had exercised care with reference to ascertaining whether she wanted to get out of the car or not, it would have helped him any. You can take that into consideration, because even if he were careful, and even if he had taken steps under the circumstances, keeping in mind the hour of the day, the condition of the train, the man- agement of the train at that point, even if, under those circum- stances, had he been careful, and yet could not have ascertaineil, under the circumstances, that she wanted to leave the train, if you even should find that that was careless on his part, that care- lessness could not be said to have contributed to her injury, and in that event your conclusion upon that point miLst not be against the defendant.^ 1 Schroder, J., in The Mt. Adams & Eden Park Inclined Ry. i\ Wyson;;. Dismissed in supreme court. To save reversal on aeeonnt of ox- cessive verdict remittitur was made in circuit court. See Booth on St. Rys., sec. 349. Sec. 2294. Injury while alighting- from car by catching cloth- ing- on car — Duty of passenger and company. "The jury are instructed that this case is to be determined upon the facts offered in evidence, and not upon any tlicory advanced to explain circumstances; that is to say, that bil(ir<> the plaintiff shall be entitled to a verdict for any amount, the evidence must prove to the jury that the «h'f("ndanl, its agents or employees had carelessly and negligently main- tained or permitted some obstruction t<> be on or upon the j»lat- 2102 INSTRUCTIONS TO JURY. form or step of said car, whereby the dress of the lady in the act of leaving the car would be caught. The evidence must prove this fact. If it does not, and the defendant, its agents or employees not being otherwise negligent in the discharge of their duty, and the plaintiff herself, in leaving said car care- lessly, neglected, in the exercise of ordinary care, to handle or take care of her dress skirts, and such negligence or carelessness of the plaintiff was the proximate cause of her injury, she can not recover, and your judgment should be for the defendant." "The plaintiff in this case claims that her dress was held in some way upon the platform of the defendant's car, and that the conductor negligently started the car while it was so held. If it was held upon the platform or step by some object or force, that is a separate and independent fact, and if you find the evidence justifies you in finding such to be the fact, you may do so without determining how or by what it was hold." "The plaintiff was not bound to appreliend any carelessness upon the part of the defendant. She had a right to rely upon the defendant having its platform in good condition and free from obstacles of an unusual character upon which her dress might catch. She was not bound to apprehend that the con- ductor might start the car while her body was in contact with it, or until she was free from it and had reached a position of safety. She was not bound to apprehend that she might do anything that would phice her in jeopardy. On the contrary, she had a right to place full reliance on the defendant doing its full duty towards her, and exercising the high degree of care which the law requires of it."^ 1 Patterson r. Inclined Plane Ry. Co., 12 O. C. C. 280; Booth on St. Rys., sec. 349. Sec. 2295. Ejection of passengers for refusal to pay fare — Transfer tickets. The carrier, in pursuance of his rights and duties, may eject from its cars persons on board who wrongfully refuse to pay the legal rate of fare; but this dangerous discretion must be STREET RAILWAYS, 2103 prudently and rightfully exercised. If you find that the trans- fer ticket came into the hands of the plaintiff wrongfully, it would not entitle him to ride on it ; and if he attempted to ride on it, on refusal to pay the legal rate of fare he miglit rightfully be ejected from the car by the defendant. But if lie pay the legal rate of fare and receive the transfer ticket from the trans- fer agent, to enable him to complete his ride to the point of des- tination for which he had paid, then he could not be rightfully ejected, so long as he conducted himself with propriety, and did not violate the reasonable rules of the railroad company.^ 1 Steffee v. R. R. Co., Summit Co. Com. Pleas. Voris, J. Upon the subject and in support of charge, see ilalioney t\ Detroit City Ry., 53 N. W. 793; Frederick v. Railroad Co., 37 Mich. 342. Sec. 2296. Damages for wrongful ejection of passenger. The jury must be instructed that the plaintiff, if entitled to recover, may be awarded the usual kinds of damages — compen- satory and exemplary, which have been explained frequently elsewhere, by instructions given in other kinds of cases, but the charge given in the particular case found in tlie preceding sec- tions will, nevertheless, be inserted here. If you find for the plaintiff, the further consideration of dam- ages comes in. In that case his damages should be compensatory, and in one aspect of the case they may be more. Compensatory damages include such sum as in your judgment he ought to receive for the injuries caused by the wrongful ;u'ts, that naturally or ordinarily resulted from the wrongful ads. This includes injury to personal feeling, sense of humiliation and insult growing out of the manner of committing the wrong, the public exposure and imputation of crime to commit a fraud upon the company in beating a ride, by reason of the wrongs you find from the evidence were committed. This is a matter very much within the discretion of the jury, but tliis must he a discretion reasonably exercised. If you find from the evidence that in the commission of the? wrong it involved the ingredients of fraud, malice, insult or 2104 INSTRUCTIONS TO JURY. oppression, and the plaintiff had conducted himself within the proprieties of the place, you may go beyond the rule of mere compensation and award exemplary or punitive damages; that is, such damages as will compensate him for the wrong done to him, and to punish the defendant, as well as to furnish an example to deter others. We feel it incumbent upon the court to say to you that in the exercise of your discretion to visit exemplary damages upon the defendant you should do it with exceeding caution. Tn case you should find for the plaintiff you may take into consideration, a« compensatory damages, rea- sonable counsel fees employed by the plaintiff in prosecuting this action.^ 1 Steffee v. The Akron Street Railroad Co., Summit Co. Com. Pleas. Voris, J. Booth on St. Rys., sees, 419, 197. Sec. 2297. Duty of railway to travelers in street. The street railroad company in the use of the street owes to the public using the street the duty to carefully and prudently exercise its right of running its cars on the street, so that it does not injure others; but it is required to exercise no higher degree of care than that required of the plaintiff, and that which the circumstances reasonably require, but this care must be commensurate with the hazards ordinarily attending the opera- tion of its cars upon the public streets of the city. The privileges granted to the railroad company to lay dowTi its tracks and operate its cars are upon an implied condition that they will be used with due regard to the rights of the public in the highway, and that it will not be guilty of negligence, nor is the use of the street by the public for the purpose of traveling in the ordinary mode, an invasion of the rights of the persons operating the street railway. The public still retains the right to make ordinary use of the street, not inconsistent with a rea- sonable and prudent operation of the defendant's cars, and the railway company holds its privileges on an implied condition that the rights of the public shall not be unnecessarily impaired or lessened. STREET RAILWAYS. 2105 It is the duty of the defendant company to exercise ordinary care and diligence to prevent injury to persons lawfully travel- ing in the street occupied by its tracks. It is bound to know that the public may use the entire street when not in actual use by its cars, and it must employ reasonable means to prevent injury to those whom it knows or ought to know may rightfully so use the street. This knowledge requires that it shall exercise due care and diligence to make it reasonably safe to travi-l on the highway in the ordinary mode,^ 1 Voris, J., in Cranmer v. Akron St. Ry. Co., Summit Co. Com. rieas. Booth on St. Rys., sec. 303. Sec. 2298. Duty to use ordinary care to pedestrian. The rights of travelers or pedestrians in the streets and a street railw^ay company are equal, except as the equality of right may be affected by the fact that the street cars can not turn off the track. This fact, however, only affects the duty of the pedestrian, because neither the street railway company nor the pedestrian has a paramount right, the rights of each being equal. Street railways in using the streets of a city are rcMjuiriMl to make such reasonable use thereof as is consistent with the rights of other persons occupying the streets in conjunction with them. It is the duty of the company to exercise such reason- able and ordinary care in the management and operation of its cars as the particular circumstances may require to avoid injury to a traveler or pedestrian lawfully using the street and who is himself in the exercise of ordinary care and prudence.* 136 Cyc. 1513, 1514; Ford v. Railway, 124 Ky. 488, 124 Am. St. 412. Sec. 2299. When motorman may assume that pedestrian will get out of danger. The jury is instructed that a motorman in charge of a street car, on seeing a person on tlie tracks of 1h.- railway, has the right to assume that he will get out of 11h- way of .hing.T ns the car approaches. But he can not rely up-m this assun.i.tion alone, without adopting other precautionary measures u|.on dis- 2106 INSTRUCTIONS TO JURY. coverj' that the pedestrian is careless. He must sound the bell and give warning of the approach of the car ; and the motorman in sounding the bell can not assume that all within hearing will take notice that a car is approaching, and he can make no such assumption in justification of his failure to take reasonable precautions until at least he has reasonable grounds for believing that his warning is heeded or the presence of the car is recog- nized, and that the person threatened is competent to protect himself by the exercise of ordinary care.^ 1 Eiley v. R. R. Co., 82 Conn. 105, 72 Atl. 562. Sec. 2300. Pedestrian may assume motorman will use due care. The jury is instructed that a person walking in the streets of a city has a right to act upon the assumption that a motor- man in control of and operating a street car will use due and ordinary caro in managing the same, that he will have the car under reasonable control at a street intersection where people are cros.sing.^ iPilmer v. Traction Co., 14 Idaho, .327, 125 Am. St. 161, 170. Sec. 2301. Ordinary care required of person about to cross track at street crossing. The jury is instructed that a person who is about to cross the track of a street railway is bound to exercise care proportionate to the danger to be avoided and the consequences which might result from the want thereof. The care to be exercised, the amount or degree threof, depends upon the particular circum- stances ; but it is only ordinary care which is required, that which might lie reasonal)ly expected of persons of ordinary prudence. Ordinary care does not require such person to anticipate neg- ligence on the part of those operating the railway.^ 1 Railway Co. v. Snell, 54 O. S. 197. STREET RAILWAYS. 2107 Sec. 2302. Injury to person on track— Duty of motonnan— May presume pedestrian will be prudent- Plaintiff may presume company will not be negligent. The jury is instructed that if the motorman could by the exer- cise of ordinary care have seen the plaintiff, and stopped the car, and that by reason of the failure to so stop the car plaintiff waa knocked down and injured, it would be such negligence on the part of the defendant as would enable plaintiff to recover pro- vided plaintiff was not contributory negligent. The motorman had the right to presume that the plaintiff would not attempt to cross the track when he was so near that it would be unsafe and dangerous for him to do so. He further had the right to presume that the plaintiff would step off the track before the car reached him, providing he was on it. Tie also had the right to presume that plaintiff would excrcisi' or- dinary care in attempting to cross the track, as we shall explain hereafter. And if the motorman, in relying upon these presump- tions, as he had a right to do, ran his cars so close to plaintiff that he could not stop the same in time to avoid the accident, or in attempting to stop the car struck the plaintiff or bi-iishcd him off the track, then defendant would not be guilty of negligence. The plaintiff had a right to presume, in absence of knowledge to the contrary, that the defendant company, in respect to the rate of speed at which it propelled its cars, woiild eon form to any ordinance which the city had properly passed witli reference to this subject, and it would not be negligence on his part to act on this presumption in exposing himself to siicli danger a.s could only arise through a disregard of the ordinance by tht; defendant company.^ 1 Gillmer, J., in Rapple i;. Youngstown St. Ky. Co., 'i'nimbiill Co. Com. Pleas. 2108 INSTRUCTIONS TO JURY. Sec. 2303. Relative rights and duties of pedestrian and street cars in streets. The jury is instructed that neither the street car nor the pedes- trian has any priority or privilege right over the other, except in so far as may arise from the fact, under special circumstances, that a street car can only run on the tracks. A street railway company and a traveler in the streets of the city have equal rights therein, but each must obser\'e due and reasonable care to avoid and prevent accident and injury, taking into account the fact that the street cars are confined to the track, while pedestrians have freedom of movement.^ 1 Stewart v. Kailway, 88 Neb. 209, 129 N. W. 440, Ann. Cas. 1912, B. 860. Sec. 2304. Duty of employees when car crossing street inter- section where car on opposite track discharg- ing passengers. The jury is instructed that the employees in charge of a street car are bound to use due and reasonable caution and care [great caution] in crossing a street intersection at a point where a car on the opposite track is, [or has recently been] discharging passengers; the motorman on such car must keep a [sharp] look- out for persons passing beliind the car on the opposite track, he must give ample and timely warning of the approach of the car by sounding the bell, and he must have it under such rea- sonable control as may enable him to readily and promptly stop the car if there is danger to such person so passing around the other car who is in the exercise of ordinary prudence.^ 1 Stewart V. Railway, 88 Xeb. 208, 129 N. W. 440, Ann. Cas. 1912. B. 861; Bremer v. Railway, 107 Minn. 326, 120 N. W. 382, 21 L. R. A. (N.S.) 887; Creanier v. R. R. Co., 142 Ky. 340, 134 N. W. 193. Sec. 2305. Duty in avoiding injury to children, apparently intending to cross street. The jury is instructed that when a motorman observes a per- son in a place of safety, he has a right to assume that he will not put himself in a place of danger; but if such motorman does STREET RAILWAYS. 2109 see that there is imminent danger to a person in tlit" street, it then becomes his duty to use every reasonable effort in liis power to stop the car, and avoid causing an injury. If, by the exercise of proper and reasonable vigilance, the inotornian could liave seen the child in time to stop the car and avoid striking him, it was his duty to do so; and if, when he saw the boy, his conduct indicated that he Avas intending to cross the track, and tliat h<» had not seen the car or heard the signals, if any were given, it was the duty of the motorman to use every effort to stop the car.^ iTecker v. Eailway, 60 Wash. 570, 111 Pac. 791. Ann. Cas. 842, Sec. 2306. Duty of parents in permitting children to go in streets. The jury is instructed that a parent is required to exercise ordinary care in watching and controlling his child in permit- ting the same to go upon the streets. It can not be said that a parent in sending a young child upon the street to do an errand is necessarily negligent. On the contrary it will depend upon the peculiar circumstances, and is a question for the jury to de- cide. The jury will therefore consider all the evidence and tle- termine therefrom whether such parent was guilty of contribu- tory negligence in permitting the boy to go, so as to preclude a recovery for his death by being struck by a street car, ete.' 1 TecRer v. Railway, 60 Wash. 570, 111 Pac. 701, Ann. Cas. 842; Sinmn V. St. Ry. Co., 231 Mo. 65, 132 S. W. 2.-)0. 140 Am. St. 4!t8. Sec. 2307. Injury to conductor by being struck by telephone pole while walking along running board of car. 1. Statement of claims of parties. 2. Burden of proof. 3. Negligence defined, and duty of defendants staled. 4. Alternative findings as to responsilnlity of railway com- pany. 5. Knowledge of danger — assumption of risk. 2110 INSTRUCTIONS TO JURY. 6. Legal ohligaUon of telephone company. 7. Alternative findings hy jury as to liability of telephone company, 8. M ensure of damages. 1. Statement of claims of the parties. Plaintiff claims that while in the employ of the railway company as conductor on a summer car he was going west on street, the car being an open one, along both sides of which was a board or step called a running-board, along which plaintiff had to walk while collecting fares ; that as the car reached , and while the same was in motion, plaintiff walked along the right side of the car for the purpose of collecting a fare, when he was suddenly and violently struck on his left shoulder by a telephone pole owned and maintained by the telephone company. It is claimed that the pole was within about fifteen inches of the north edge of the running board while the car was passing at that place; that the pole leaned toward the car track, etc. Plaintiff claims that he did not know and had no means of knowing of the close proximity of the pole to the car tracks and passing cars, and that he was struck without any fault of his own. The negli- gence charged against both defendants is that they knew, or should have known of the existence of the pole and of the dan- gerous proximity thereof to the street car track and passing ears, that it permitted its tracks to be and remain in dangerous proximity thereto ; that it permitted the pole to be and remain in dangerous proximity to the track, etc. The questions of fact presented by the pleadings for the jury to determine, are whether the injury complained of was the result of or caused by the negligence of either or both of the de- fendants, whether or not either or both of the defendants were free from negligence which caused the injury and whether the injury was the result of or caused by the plaintiff's own negli- gence. 2. Burden of proof, and credibility of witnesses. The burden of proving that the negligence of either or both of the defendants was the cause of the injury to plaintiff rests upon him. This STREET RAILWAYS. 2111 must be shown by plaintiff by a preponderance of the evidence. It means that the negligence of the defendants, either or both of them, must be established by the greater weight of credible testimony; not necessarily by the greater number of witnesses. You must give such credence to the testimony of the witnesses as your judgment dictates, under the facts and eiroumstanffs as developed. You are the sole judges of the credibility of witnesses, and may give them such credit as seems proper under all the circumstances, considering their interest or want of in- terest in the case, their ability to leam, know and relate the facts. 3. Negligence defined, and duty of defendants stated. The defendants are charged with negligence. Negligence is the failure to observe for the protection of the interests of another that degree of care, protection and vigilance which the circumstances reasonably demand. It is a failure to observe ordinary care under the circumstances of the particu- lar case, — this case. Ordinary care is that degree of care which persons of ordinary care and prudence are accustomed to ob- serve under similar circumstances. Ordinary care in this ease is such care as reasonablly prudent persons would obscr^-e in setting telephone poles close to street car tracks, or of persons who operate street cars, as a master, in close pro.ximity to tele- phone poles, for the protection of persons engaged in operating the cars. It was the duty of the defendant railway company a.s the employer of the plaintiff to use ordinary care and prudence to furnish him wdth a safe place to work. Tlie railway company was not an insurer of the plaintiff's safety; it l)eing l>«)und merely to observe ordinary care in furnisliing him with a safe place to work. It was the duty of the dcfenchmt railway com- pany to o])serve ordinary care not to run and operate its ears in such proximity to any pole or poles wliich i.i:iy I.e located and maintained in that position so that its servants in eliart,'e of the operation of the cars and in the observance of their railway company to have been negligent in tlie parti.Milars claimed, your verdict would be in favor of both llie r.iilway company and the telephone company. Hut if you fin.i that both^ 2114 INSTRUCTIONS TO JURY. the telephone company and the railway company are each guilty of negligence under the rules herein given you, which renders them liable in damages to the plaintiff, and that the injury was not caused by the plaintiff's sole negligence, your verdict should be rendered jointly against both defendants for such damages as in your judgment you believe plaintiff to have sustained. If such be your verdict, the amount assessed should be a lump sum, without apportionment between the two defendants. 8. Measure of damages. If you find the plaintiff is entitled to recover, he will be entitled to compensation for all injuries which naturally resulted from the wrongful acts of the defend- ant, for the pain and suffering endured by him as a consequence of the injury, if such he suffered, for the loss of time occasioned by his injury; injury to his health, if it has been injured thereby; the pain and suffering and impairment of health and earning capacity, if any, which you may find he will with rea- sonable certainty suffer in the future. He will also be entitled to recover the reasonable value of his medicines and physician's services.^ 1 Rohr V. Columbus Ey. & Lt. Co., et al, Franklin Co. Com. Pleas. Kin- kead, J. Sec. 2308. Injury to passenger while assisting driver of street car. "If the plaintiff was requested by the driver of the ear to assist in pushing it back, and in doing so was injured by the negligence or carelessness of the driver of the car on which he had been riding, or of another car, he can recover if such assist- ance was apparently necessary. Or if there was an actual necessity for him to assist the driver in pushing back the car, and he did so assist, and while doing so w-as injured by the negligence of the driver of this ear or of another, he can recover, whether he was requested by the driver to assist or not. ' ' ^ 1 From Street Railway Company v. Bolton, 43 O. S. 224. STREET RAILWAYS. 2115 Sec. 2309. Bound by acts of— Conductor and motonnan in scope of employment. In general the passenger carrier is bound by the acts of its employees and agents in the scope of their employment, and must answer for their negligent or wrongful perfonnauce in the scope of their employment. In other words, tlic negligence of the conductor and motorman of this car, in the scope of their employment, would be the negligence of the defendant com- pany, for which the defendant would be liahle, if you find that they, or either of them, were negligent in the performance of their duties as such employees and agents of the defendant, in respect to the negligence charged.^ 1 Voris, J., in Sourek v. The Akron St. Ry. Co., Summit Com. Tleas. Bootli on St. Rys., sec. 372. Sec. 2310. Reciprocal rights of vehicles and street cars. In view of the inability of the cars of a street railway com- pany to leave its tracks, it is the duty of free vehicles not to obstruct them unnecessarily, and to turn to one side when tliey meet them, but subject to that and to the respective powers of the two, a car and a wagon owe reciprocal duties to use reason- able care on each side to avoid collision. Neither lias a right to assume that the other will keep out of the way at its peril, al- though the electric car has a right to demand that the wagon shall not obstruct it by unreasonable delay upon the track.' 1 White V. Ry. Co., 167 Mass. 4.3; Galbraith v. Ry. Co., Id.") Muss. 572; O'Brien v. Ry., 186 Mass. 446. Sec. 2311. Duty of driver of vehicle to look before crossing. The jury is instructed that it was the duty of pl:iiiitilT to look in both directions as he approached street, and to seK'ct such a point from which to look as to enable him to (h-t.-nnin.' whether a car was coming, and if the jury find that he did not so look and that his failure so to do contributed to the collision, 2116 INSTRUCTIONS TO JURY. then lie is guilty of contributory negligence, and he can not recover.^ 1 Blake v. R. I. Co., 32 W. I. 213, 78 Atl. 834, Ann. Cas. 1912, D. 852. This may be properly applied in Ohio under peculiar conditions in congested portions of a city. Sec. 2312. Duty of driver to stop vehicle before crossing track when car approaching, when. The jury is instructed that if it appears from the evidence that the street car was in sight of the plaintiff, and that it was approaching at a high rate of speed, and if it appears that plaintiff's vehicle was in such close proximity to the track, that, considering the speed of the car and the position of the vehicle, it would appear from such circumstances that ordinary care and prudence would not warrant plaintiff in crossing the track, then it was the duty of the plaintiff to have stopped his vehicle. If he failed so to do, and if the collision was brought about by his own neglect in this respect, he can not recover.^ 3 Blake v. R. I. Co., 32 R. I. 213, 78 Atl. 8.34, Ann. Cas. 1012, D. 8.52; Moon V. Tr. Co., 237, Mo. 425, 141 S. W. 870, Ann. Cas. 1913, A, 183. Sec. 2313. Collision between vehicle and street car at street crossing. 1. Relative rights of driver of vehicle and street railway at street crossing. 2. Specific questions of negligence involved. 3. Duty of driver of vehicle in exercise of his correlative right. 4. Driver of vehicle may asstiyne that motorman will exercise ordinary care. 5. Failure of driver to use ordinary care — or if he miscal- culates. 6. Duty of railway company to drivers of vehicles. 7. 3Iotorman. observing ordinary care may assume that driver of vehicle iv-ill use same care in crossing. 8. Alternative findings jury may make. STREET RAILWAYS. 2117 1. Belaiive rights of driver of vehicle and street railway at street crossing. The rights of persons driving vehicles in the streets of a city, and of a street railway operating a line of rail- way in the streets are reciprocal ; that is, they are eciual. Neither has a superior right, excepting, however, as particular comli- tions and circumstances appearing in any case may give the one or the other the superior right of passage on a particular occasion. A street railway company owes certain specific duties toward persons driving across its tracks at street intersections. Likewise, persons driving vehicles are hound to take int.i con- sideration the nature and manner of the running of cars on the streets of a city, and they must use ordinary care in looking out for their own safety. The driver of a horse must take into consideration in crossing ahead of an approaching street car the fact that the car can not turn out of the coui-se on the tracks ; that it must remain on the rails. He is bound to know that the car can not generally be stopped instantly and that the ability to stop the car in order to avoid colliding with him depends upon the rate of speed which it is running when the same is reasonable and not immoderate. A driver has a right to n-ly upon the observance of the duty that the car will be run at a moderate, reasonable rate of speed, and that it will not be run at an unreasonable and immoderate rate of speed, and that is to be considered in connection with the duty which tlic law imposes upon a driver of a vehicle in attempting to cross a track in front of an approaching car. 2. Specific questions of negligence involved. The specific ciucs- tions presented by the pleadings and the evidence are whctlicr neither of the parties were at fault and the injury was a result of pure accident, or whether the injury was the result of plain- tiff's own negligence, or of that of the defendant. Tlin-c is no question of the contributory negligence of plaint ill" i-a using tin? injury. Contributory negligence is a term wliicli is well under- stood in law, and which the jury might not so rrnii.il)h' control of the car and could, by the exercise of ordinary can', approaching car, and he failed under such circumstances to after discovering plaintiff in the act of passing in fntnt of the observe such care and the collision resulted from such failure on the part of the defendant, your verdict should l)c for the plaintiff. But if, on the other hand, you find that the defendant was running the car at a moderate and reasonable ruff of speed, and if the motorman sounded the gong, and if the motonnan, when he saw the plaintiff in a place of danger on llie track, in the exercise of ordinary care did everything wliich a reasonalily prudent person could do in stoi)ping tlie car in order to avoid a collision Avith the plaintiff's wagon, and was unable to do ho, 2122 INSTRUCTIONS TO JURY. then in such case plaintiff may not recover and the defendant in such case is entitled to your verdict.^ 1 Scliasbarger v. The Col. Ey. & Lt. Co., Franklin Co. Com. Pleaa. Kin- kead, J. Sec. 2314. Injury to driver of vehicle at street crossing-. 1. Relative rights of driver of vehicle and street car. 2. Relative duties of each. 3. When driver may undertake to cross track — His duty. 4. Conclusions hy jury as to conduct of plaintiff. 5. Duty of company to persons crossing street and track as to speed, control of car and signals. 6. Conclusion of jury as to conduct of defendant. 7. Concurrent negligence of plaintiff. 8. Proximate cause. 9. Directions as to verdict. 10. Traffic ordinance as to passage of vehicles into another street. 1. Relative rights of driver of vehicle and street car. The rights of persons driving vehicles in the streets of a city, and of a street railway operating a line of railway in the streets are reciprocal, that is, they are equal. Neither has a superior right, excepting, however, as particular conditions and circum- stances appearing in any case may give the one or the other the superior right of passage on a particular occasion. 2. Relative duties of each. A street railway company owes certain specific duties towards persons driving across its tracks at street intersections. Likewise, persons driving vehicles are bound to take into consideration the nature and manner of the running of cars on the streets of a city, and they must use ordi- nary care in looking out for their own safety. The driver of a •horse must take into consideration in crossing ahead of an approaching street car the fact that the car can not turn out of the course on its tracks; that it must remain on the rails. He is bound to know that the car can not generally be stopped instantly, and that the ability to stop the car in order to avoid colliding with him depends upon the rate of speed at which it STREET RAILWAYS. 2123 is running when the same is reasonable and not immoderate. A driver has a right to rely upon the observam-c. of tbe duty that the car will be run at a moderate reasonable rate of speed, and that it Mill not be run at an unreasonable and immoderate rate of speed, and that is to be considered in conueetion with the duty which the law imposes upon the driver of a vehicle in attempting to cross a track in front of an approacliing ear. 3. When driver may undertake to cross track — His dutij. in the exercise of his equal right in the street, the plaintiff, keeping in mind as he must, the facts of the nature and manner of run- ning street cars on the rails in the streets of the city, the spec'd at which they are run when not excessive, as compared with the speed of a heavily loaded wagon, as well as the ability or inabil- ity to stop the cars in order to avoid injury, the driver of a vehicle, in the exercise of ordinary care for his own safety, has the right to cross the track of a street railroad even though he observes a car approaching, provided there is a reasonable oppor- tunity for him to cross in the exercise of ordinary care without obstructing the passage of the car unnecessarily ; and provided further, that the driver does not undertake to cross the track in front of the approaching car in such close proximity to the car at the time he attempts to cross that the motorman may not, if running at a lawful and ordinary rate of speed, be able, by the exercise of ordinary care, to avoid collision with the vehicle. The driver of the vehicle in attempting to cross the traek under such circumstances, and while observing ordinary care, kei'ping in mind the considerations already mentioned, has the right to act upon the presumption that the motorman in ehart,"' «»f the car will himself observe ordinary care in the management and control of the car, and that he will, that is, the niolonnan will, observe the rights of the drivers of vehicles who are in th.' i)n.|>.r exercise of their reciprocal rights in the streets. If the driver fails to observe the ordinary care required of liim, and by reason of such neglect he miscalculates and i)asses in front of the ap- proaching car in such close proximity thereto as thai the niolor- man, by the exercise of ordinary care in observing a lookout, 2124 INSTRUCTIONS TO JURY. and while ninning at a lawful rate of speed, and having the car under reasonable control, can not stop his car in time to avoid the collision and injury, using ordinary care to do so, and the ear does run into the vehicle and injure the driver, the latter can not, in such case, recover. 4. Conclusions by jury as to conduct of plaintiff. Now these, gentlemen, are the general doctrines and rules of law which the court gives you as applicable to the facts and circumstances and respective claims of tlie parties in this case. The plaintiff may not recover compensation for any damages which he might have avoided by the use of ordinary care under the circumstances. If you find that plaintiff did not obsen'e ordinary care and the rules of law given you, and that by his failure and neglect he exposed himself to the hazards and dangers which ordinary prudence forbid him so to do, or which reasonably ought to have been known to him, and that his own neglect in these respects was the cause of his injury, then he is not entitled to recover, and your verdict would in such case be for the defendant. 5. Duty of company to persons crossing street and track as to speed, control of car, and signals. We come now to the charges of negligence made by the plaintiff against the defendant. As already stated, the railway com'pany has equal rights in the streets of a city, but the railway company, in the operation of its cars, owes a duty towards travelers and vehicles who may be crossing its tracks at street intersections when it is in the act of approaching the same. It is the duty of the railway company, and it was the duty of the defendant in this case in the running of its cars, upon approaching the street intersection or crossing, to run at a lawful and reasonable rate of speed, and it was bound to use ordinary care and prudence in the manage- ment and control of its cars, to keep the same under such reason- able control as not to endanger the safety of a person driving a vehicle across the track, the latter using ordinary care at the time In other words, it is the duty of the railway company to approach the street intersection at such reasonable rate of epeed, and the motorman is required to be on the lookout for STREET RAILWAYS. 2125 the welfare and safety of persons driving vehicles at a street crossing, and signals and warnings must be given, and it must use ordinary care in having such reasonable control of the car as may enable it to avoid colliding with vehicles laAvfully and prudently passing across the street, and if ordinary care re- quires it under the circumstances, it should cheek the speed or stop the car. Whether or not ordinary care requires a car to be stopped under a given state of circumstances, or whether the failure to stop the car in time to avoid an injury to a person driving a vehicle by collision under a given state of circum- stances, in this case, for instance, is a question of fact entirely vrithin the province of this jury to decide according to the cir- cumstances in this case, and by the application of the general doctrines governing the rights and the duties of the parties in this case as given the jury by the court. If the motorman in charge of the car of the defendant was traveling at a moderate and reasonable rate of speed, and was at the time observing ordi- nary care in the operation of the car, and if he had the same under reasonable control, upon sounding the gong and giving warning of the approach of the car, he had the right to proceed at the street intersection for the purpose of crossing the same, and he had the right in such case to assume or presume that if any one was approaching the crossing, or was near it and in plain sight of the approaching car, that he would have his vehicle under proper control and would himself exercise ordinary care to avoid collision. He would have the right to presume under such circumstances that the driver would stop so as to avoid collision. The motorman of defendant in this case had the right to assume that the plaintiff would do the same in this case in crossing the track. 6. Conclusion of jury as to conduct of defendant. If, there- fore, the motorman was observing the above requirements as to speed and control of the car, if he sounded his gong and warned plaintiff of the approach of the car, and if he acted mistakenly upon such assumption as to what the driver should do, as the court has explained to you, the motorman then in such case can not be said to have acted negligently. If the defendant 2126 INSTRUCTIONS TO JURY. was running the car at an excessive rate of speed, and if he did not have reasonable control of the car, if he was unable for these reasons to stop the car after seeing the danger to plaintiff in the act of crossing the track in front of the approaching car, and if the collision was due to this neglect on the part of the defendant, then your verdict should be for the plaintiff. On the other hand, if the motorman was not running at an immod- erate rate of speed, and if he did have reasonable control of the car and could, by the exercise of ordinary care, have discovered plaintiff in the act of passing in front of the approaching car, and he failed under such circumstances to observe such care, and the collision resulted from such failure on the part of the defendant, your verdict should be for the plaintiff. But if, on the other hand, you find that the defendant was running the car at a moderate and reasonable rate of speed, and if the motor- man sounded the gong, and if the motorman, when he saw the plaintiff in a place of danger on the track, in the exercise of ordinary care did everything which a reasonably prudent person could do in stopping the car in order to avoid a collision with the plaintiff's wagon, and was unable to do so, then in such case plaintiff may not recover and the defendant in that event is entitled to your verdict. 7. Concurrent negligence of plaintiff. Some claim is made in evidence and argument that if it should appear from the evi- dence that the defendant was guilty of some negligence as charged, that the plaintiff himself was also guilty of negligence which was concurrent with any negligence of which the jury as to this matter in the requests made by the defendant before argument, and it will now further say to you, that if you find that both plaintiff and defendant Avere guilty of negligence, and that the negligence of both was contemporaneous and continu- ing until after the injury, and that the negligence of each was a direct cause of the injury, without which it would not have occurred, plaintiff may not recover, and your verdict should be for the defendant. But if you find that the negligence of the plaintiff, if he was guilty of negligence, was not contemporane- STREET RAILWAYS. 2127 ous and continuing, as stated, you will then determine whether the negligence of plaintiff or of the defendant was the proximate cause of the injury. 8. Proximate cause. The law regards only the proximate cause, attaching legal consequences thereto. Consequently the jury must understand the meaning of the term. The proximate cause of an injury is that cause which, in a natural and continuous sequence, unbroken by any new, inde- pendent cause, produces the injury, and without which the injury would not have occurred. 9. Directions as to verdict. Under the rules given you con- cerning the alleged negligence of both plaintiff and defendant, the jury is instructed that if you should find that the plaintiff was guilty of negligence in any of the particulars charged, and the defendant was also guilty of negligence, but that the negli- gence of plaintiff was not contemporaneous nor continuing with that of the defendant, and that the plaintiff's negligence, without the intervention of the negligent acts of the defendant would not have produced the injury, and that the negligence of the defend- ant in such case was a new and independent cause, without which the injury would not have occurred, and that tlie same produced the injury, your verdict should be for the plaintiff. But if you find that the negligence of the plaintiff was not concurrent with that of the defendant, that there was no inter- vening, new or independent negligence of the defendant, pro- ducing the injury, your verdict should be for the defendant. 10. Traffic ordinance as to passage of vehicles into another street. A traffic ordinance passed by the city council of the city of Columbus, regulating the conduct of drivers of vehicles upon the streets of the city, has been offered in evidence, the provisions! of which require vehicles turning to the left into another street, alley or thoroughfare, shall pass to the right of and beyond the center of the street intersection before turning, and other pro- visions which have been offered in evidence and read to you. This ordinance is permitted to go to you as evidence touching the question of the conduct of the plaintiff, which it is claimed constitutes negligence on his part, and may be considered by 2128 INSTRUCTIONS TO JURY. you on the question whether the plaintiff acted prudently or not in crossing the street under the circumstances as shown in the evidence. The judgment or opinion of the authorities of the city of Columbus in passing this ordinance, prescribing what they may deem to be a proper rule of conduct governing parties in such cases, is not as matter of law conclusive upon your judgment in determining the questions of fact in this case. If, however, it coincides with your opinion as to the true measure of standard of conduct to be exacted of drivers of vehicles in such cases and under the circumstances of this case, you may adopt it and act upon it in the rendition of your verdict. But if you believe from all the evidence in the case that it does not prescribe the proper rule or standard of conduct which should be applied to the circumstances in this case, you may exercise your own judgment in the matter.^ 1 Jaeger v. The Columbus Ry. & Lt. Company. Franklin Co. Com. Plep.s. Kinkead, J. Effect of violation of ordinance. Meek v. Penn Co., 38 O. S. 632; Hoppe v. Parmaloe, 20 C. C. 303. Sec. 2315. Injury to passenger in hired automobile from col- lision between street car and automobile — By joint negligence of both — Action against both. 1. Statement of negligence clxarged. 2. Neither defendant liable for negligence of other — Both liable if their concurrent negligence cause injury. 3. Plaintiff must be free front negligence — Ride and burden of proof. 4. Negligence — Duty of motorman and driver of automobile. 5. Reciprocal rights and duties of each. 6. Same — Duty as to discovery of intent of auto driver to cross street. 7. Directions as to verdict. 8. Duty of driver of auto to plaintiff as its passenger in crossing track — Whether to look and listen. 9. Negligence of auto driver not imputable to plaintiff. 10. Ordinance as to operation of cars and autos. 11. Statute as to speed of auto. STREET RAILWAYS. 2129 12. Summary and direction as to verdict. 13. Damages. 1. Statement of negligence charged. The jury will note that the defendants are not both charged in the plaintiff's amended petition with the same acts of negligence, but it is charged as against the railroad company that it was negligent in that the said street car was being operated and run at a high and dan- gerous rate of speed; that the motorman in charge of said car did not check the speed of the same at said street intersection where said collision occurred; that no signal or warning was given of the approach of said car; that the motorman of said car negligently and carelessly failed to have said car under control at said street intersection, and failed and neglected to stop said car when he saw, or by the exercise of ordinary care could have seen the automobile in which the plaintiff was a passenger. And the defendant, S., and his partner were charged to be negligent in that the operation of said automobile carelessly and negligently failed to keep a proper lookout for said approach- ing car and negligently and carelessly propelled said automobile in the car track in front of said car. 2. Neither defendant liable for negligence of other— Both liable if their concurrent negligence cause injurij. The court instructs you that neither of the defendants can be held liable for the negligent act or acts charged against the other, but each defendant is to be held liable for the negligent act or acts, if any are proved, which are charged against each of such de- fendants. You may, if the evidence justifies it, find for or against one or both of the defendants. Before, however, you will be warranted in finding against both of the defendants, you must find that the injuries of which she complains resulted by reason of one or more of the acts of negligence of one defendant coinhined with one or more acts of negligence of the other defendant pro- ducing the injury; in other words, concurrent acts of negli- gence of both defendants and producing the injuries are essen- 2130' INSTRUCTIONS TO JURY. tial to render both liable; and not the several negligent acts,' if any, of one defendant. 3, Plaintiff must he free from negligence — Rule and burden of proof. Again, before the plaintiff can recover it is essential that she be free from negligence on her part producing, or con- tributing to, her injuries. And the rules of proof with regard to her contributory negligence, if any, are these: The burden of proof rests upon the defendant to show that she was guilty of contributory negligence, with this qualification, that if the evidence adduced by her raises a presumption that she was negligent and that such negligence contributed to produce the injury, the burden rests upon her to remove that presumption ; for the law is that when the circumstances require of plaintiff the exercise of due care to avoid the injury, and plaintiff's own negligence directly contributes to lier injury, she can not re- cover on account of the negligence of defendants, for the law will not undertake to apportion the degree of negligence as between the parties. 4. Negligence — Dnt)/ of motoi-man and driver of automobile. Negligence is defined to be the want of ordinary care, that is, such care as an ordinarily prudent person would exercise under the same or similar circumstances and surroundings. Ordinary care depends upon the circumstances of each particular case, and should be commensurate with the danger reasonably to be apprehended from a lack of proper prudence. This definition of negligence applies to both plaintiff and the defendants, and will be used by you in determining whether either of the parties was negligent. It was the duty of the motorman of the railway company in the operation of its car at the intersection of these two streets as well as it was the duty of the driver of the auto in the opera- tion of the auto at this point, to exercise that degree of care which an ordinarily prudent and careful person would exercise under like circumstances, to avoid danger of collision at the crossing. And neither the motorman of the railway company nor the driver of the auto had the right to operate their respec- STREET RAILWAYS. 213 1 tive conveyances at the street crossing in such a manner as to throw all the burden of care and watchfulness to avoid accidents upon the other. It was the duty of each to exercise ordinary care and vigilance to avoid accident to the other. 5. Reciprocal rights and duties of each. The driver of the automobile and the street railway company had an equal right to use the streets at the intersection, the driver of the auto, hov*-- ever, making due allow^ance for the fact that the street car ran upon a fixed track and by reason of its greater weight was less easy to check or stop than the automobile. With this difference in the mode of use, their rights were mutual and reciprocal in the use of the streets at their intersection. A duty to be on the lookout to avoid danger was just as fully imposed upon the one as upon the other, and it was the duty of each to operate their car and auto respectively with reference to the mutual and recip- rocal rights of the other using the streets at the crossing. The only different right which the street ear company had, arose from the necessity of the car confining its travel to the tracks, and the consequent inability to turn out to avoid collision. 6. Same — Duty as to discovery of intent of driver to cross street. If the street car was being operated in a much fre- quented part of the city, and the motorman discovered, or by the exercise of ordinary care should have discovered that the driver of the automobile was about to cross the track at the crossing in front of the car, it was the motorman 's duty to use ordinary vigilance to stop or check the car in order to avoid a collision ; and if he did not exercise such vigilance, and hy reason thereof the collision occurred, you will be justified in finding that the railroad company was negligent. Under like circumstances, if the driver of the automobile, being about to make the crossing, discovered or by the exercise of ordinary care should have discovered that the street car was about to cross at the intersection of the two streets in front of the automobile, it was the duty of the driver of the automol)ile to use ordinary vigilance to stop or check his machine in order to avoid the collision, and if he did not exercise such vigilance, and by reason 2132 INSTRUCTIONS TO JUBT. thereof the collision occurred, you will be warranted in finding that the defendant, S., was negligent. 7. Directions as to verdict. On the other hand, if the motor- man of the railway company and the driver of the auto, or either of them, did exercise that degree of care and vigilance in operating their respective means of conveyance, as they ap- proached and were about to go over the intersection of these two streets, you will be justified in finding that the defendant or defendants so exercising such care and vigilance were not negligent. You will, therefore, consider the evidence adduced and de- termine, so far as the railway company is concerned, whether or not it was negligent in operating its car at this intersection at a high and dangerous rate of speed, or whether or not the motorman slackened the speed of the car, or gave any signal or warning of his approach, or negligently failed to stop the car when he saw, or by the exercise of ordinary care could liave seen the automobile in time to have avoided the collision. If you resolve all of these questions in favor of the defendant company you will find it not negligent, and your verdict will be for the defendant railway company. But if you determine from a preponderance of the evidence any one or more of these questions in favor of the plaintiff and against the defendant company, you will be justified in finding that the defendant railway company was negligent. You will also consider the evidence adduced, and determine, so far as the garage company is concerned, whether or not the operator of the auto was negligent in that he failed to keep a proper lookout for the approaching car, or carelessly and negli- gently propelled his automobile on the car track in front of the said car. If you determine both of these questions in favor of the garage company you will find that S. was not negligent and your verdict will be for the defendant, S. But if you de- termine one or more of these questions in favor of the plaintiff and against the defendant, S., you will be warranted in finding that S. was negligent. STREET RAILWAYS. 2133 8. Duty of driver of auto to plaintiff as its passenger in cross- ing track — Whether to look and listen. The court further in- structs you that the plaintiff being a passenger for hire in the auto, it was the duty of the auto driver to exercise ordinary care for her safety while she was such passenger. And while omission by a driver of an auto about to drive across the street railway tracks to look for an approaching car is not in all cases, as a matter of law, negligence, it nevertheless is his duty to exer- cise ordinary vigilance to avoid a collision with the car; and whether the driver of the auto exercised such vigilance or not depends upon the circumstances and surroundings of the case. If at the time he was about to cross the track, the situation and circumstances then surrounding him were such as to require a person in the exercise of ordinary prudence to look and listen to ascertain whether there was a ear approaching and in close proximity to the crossing, and he failed to do so, then he was negligent. On the other hand, if the circumstances were not such as to require him to look or listen, he would not be negli- gent. In considering the question of negligence on the part of the auto driver, as charged, you will therefore look to all the facta and attendant circumstances and determine whether they were such as to require the driver to look for an approaching car as he was about to cross the track, and to listen for signal or warn- ing, if any, of the car's approach. If you determine that under all the circumstances it was his duty in the exercise of ordinary prudence, to look or listen, or do both, as he approached, and he did not do so, you will be warranted in finding tliat tlie driver was negligent. On the other hand, if the circumstances did not require him to look or listen on approacliing the track before he crossed, you will be justified in finding he was not negligent. 9. Negligence of auto driver not imputed, to plaintiff. Wliih^ the negligence, if any, of the automobile driver is not imputable to the plaintiff as a passenger, and whih> she was not required to exercise the same watchfulness as the driver to avoid danger, she could not rely implicitly on the care of the driver, when in 2134 INSTRUCTIONS TO JURY. a position to see and apprehend the danger, if any, but it was necessary for her to exercise ordinary care for her own safety, and if she did not do so, and in consequence of her failure to exercise such care she was injured, she cannot recover, even though both or either of the defendants were negligent as charged in the amended petition, and such negligence contributed to pro- duce the injuries. 10. Ordinance as to operation of cars, and autos. Certain pro- visions of an ordinance under which it is claimed the street rail- way company was operating its cars on Jaeger street have been offered in evidence, relative to the speed of the cars, their con- trol, the degree of watchfulness required of the company, and the like, at crossings; and evidence has been offered tending to show that the company was violating these provisions at the time of the accident. Whether or not any of the foregoing matters have been sufficiently shown by the evidence are matters of fact for your determination, of which the court has nothing to do. However, the court instructs you that the violation, if at all, of such ordinance is not as matter of law, conclusive evidence of negligence on the part of the railway company, but is only a circumstance taken in connection with all other evi- dence reflecting upon the company's alleged negligence, if any. Furthermore, provisions of an ordinance have also been offered in evidence relative to the mode of travel on the public streets by automobiles and other vehicles, and how they shall turn at in- tersections to go from one street into another, and it is claimed that the automobile driver Avas violating this ordinance in fail- ing to turn to the right of the center as he was about to go from one street to the other. It is your province to determine whether or not he was at the time of the accident violating this ordinance, and circumstance to be considered by you along with all the negligence on the part of the automobile driver, but was a fact and, if he was, such violation was not conclusive e^adence of other evidence in the case reflecting upon the question of his alleged negligence, if any.^ s Meek v. Penn. Co., 38 0. S. 632. STREET RAILWAYS. 2135 11. Statute as to speed of auto. The statutes of this state also declare, in substance, that whoever operates a motor vehicle on the public roads or highways at a speed greater than is reason- able or proper, having regard for width, traffic, use and the gen- eral and usual rules of the road or highway, or so as to endanger the property, life or limb of any person, shall be guilty of a misdemeanor. The statute also declares that whoever operates a motor vehicle at a greater speed than eight miles an hour in the business and closely built up portions of a municipality, or more than fifteen miles an hour in other portions thereof, is guilty of a misde- meanor. Evidence has been offered tending to show that at the time of the accident the driver of the automobile, was violating these provisions of the criminal law, and other evidence is offered tend- ing to show that neither of these statutes was being violated. Whether or not the evidence so shows is a matter of fact for your determination and not a matter for the court to pass upon. Acts in violation of such statutes, in the absence of counterv^ail- ing testimony is per se negligence and constitutes a prima facie liability. But this, of course, is not conclusive ; where there is testimony tending to show that the acts of excessive speed did not in fact proximately cause the injury, it is for the jury to determine what did in fact cause the injury. 12. Summary and direction as to- verdict. In summing up, the court instructs you that if you find that the defendants or either of them were negligent in one or more of the particulars alleged in the amended petition; that the separate negligence of one defendant, or the combined and concurrent negligence of both defendants directly produced the injuries or some of them complained of; and that no act of negligence on the part of plaintiff produced, or contributed to produce her injuries, or any of them, it will be your duty to find a verdict for the plain- tiff against the defendant or defendants wliose negligence pro- duced such injuries. On the other hand, if you find that neither of the def«>ndants was negligent, or if negligent, that such negligence did not pro- 2136 INSTRUCTIONS TO JURY. (luce the injuries to plaintiff, or that the plaintiff herself was negligent and such negligence either produced, or contributed along with the negligence of either or both of the defendants to produce the injuries, you will return your verdict for the defendants. 13. Damages. If you find that the plaintiff is entitled to re- cover, your verdict should be in her favor for such sum as dam- ages as will fairly and justly compensate her for the injuries; the measure of her damages is compensation and only compensa- tion. You will take into consideration the nature of the injuries, the extent of them, the pain which she has suffered, all the neces- sary expense which she has necessarily been put to in conse- quence of the injuries. You will consider the effect of the in- juries, the permanency of it, the effect of the injuries upon her bodily strength and upon her capacity to labor and earn a living, and all the other facts and circumstances, calmly and deliber- ately, and apply your judgment to the evidence in the case. If you find in favor of the plaintiff, you will award her such damages as will fairly and justly compensate her for the injuries, not to exceed, however, the amount claimed in the petition.^ ] Kelly V. Cols. Ey. & Light. Franklin Co. Com. Pleas. Rogers, J. Sec. 2316. Street car colliding with automobile stalled on track on dark night. 1. The charge of negligence. 2. Duty of railway company when automobile stalled on track on dark night. 3. Same — Duty on discovery of auto on track to use ordi- 4. Duty of person in charge of automobile. fiury care. 5. If auto driver negligent — To hold railway co^npany, it must be guilty of new and independant act of negli- gence. 6. Speed of car — Opinion of witnesses to be received with caution. 7. Form of verdict. 1. The charge of negligence. The charge of negligence con- tained in the petition is that defendant was running at a high STBEET RAILWAYS. 2137 rate of speed of about thirty miles an hour, and that it care- lessly, recklessly and negligently ran into the automobile. The last allegation, that the defendant carelessly, recklessly and neg- ligently ran into the automobile, is a general charge of negli- gence, it does not specify particularly the ground of negligence claimed. But it is sufficient to allow the case to be tried and to go to the jury, and the court will direct your attention to the particular claims that are made in the evidence, even though they are not specifically specified in the petition. The conceded fact upon which the claim of negligence in this case is based is, that the automobile of plaintiff had stopped on the track of the defendant at about midnight, on a dark night, at a street intersection at which point the street light was out. The driver of the auto looked backwards and became aware of the approach of the street car a square away while the auto was still stalled or standing on the track. There w^ere four men in the auto, and whoever made the effort to start the car was unable to start it ; that is, was unable to start the engine ; and the evi- dence is undisputed that no effort was made to remove the car in any other way than by its own power. It is undisputed that a police officer was present and that he endeavored to signal the approaching car to stop. The question of where he stood, how many feet away from the auto he was, is a question which the jury must decide. On the basis of the conceded facts stated, the jury will deter- mine whether the injury was an accident; that is, whether it was without anybody's fault, and for which there is no legal responsibility, or whether it was caused by the negligence of the defendant, or whether it was caused l)y the negligence of the servant or agent of the plaintiff who Avas in charge of the car. 2, Duty of railway company when automobile stalled on track on dark night. Where an automobile is standing still on the track of a street railway which cannot be quickly or readily removed therefrom by its own power because of the inability of the person in charge of it to start the engine, and where the night is dark, and the street light at the street intersection where 2138 INSTRUCTIONS TO JURY. the auto is standing is not burning, it is the duty of those in charge of a street car which is being run along the street car track at such place, to use ordinary care in keeping an outlook to discover the presence of persons in such automobile and upon the track ahead of the car. And if the servant in charge of the street car, in the exercise of ordinary care under the particular conditions appearing from the evidence, is unable to discover an automobile in a position of danger on the tracks, and by the exercise of ordinary care such servant of the defendant is unable to discover the automobile standing on the track ahead of the car and collides with the same, there can be no liability on the part of the defendant. Now that rule of liability, gentlemen, you will observe is de- pendent upon the ultimate fact of whether ordinary care was used by the servant of the railway company in discovering the perilous position of the auto. And that is the fact for the jury to find. The court merely states the rule of care to be required of the motorman, which is to be applied by the jury. 3. Same — Dutij on discovery of auto on track to use ordinary care. The defendant railway company may be held liable for colliding with an automobile standing on its tracks, as the one in this case was, and under sucli conditions as appear from the evidence in this case, only if it fails to observ^e either one of two duties or obligations which the law imposes upon the company. First: if it fails to observ'c ordinary care to discover persons and vehicles or autos in a position of danger on its track, and by reason of such want of care on its part, its car runs into such vehicle or auto, it is liable therefor, if its negligence in this re- spect is the sole, or proximate cause of the collision and injury. Second: if the servant, or the motorman in charge of a street car, exercising due and ordinary care actually discovers a per- son and vehicle or auto on the track in a position of danger, whether such dangerous position of the vehicle is due to pure accident on the part of the person in charge of the auto, or whether it is due to his negligence in allowing it to remain on the track, then it becomes the duty of the railway company to STREET RAILWAYS. 2139 observe such ordinary care to avoid injury by collision n-ith the auto by either slacking the speed or by stopping the car. The law places the responsibility upon a motorman of avoid- ing injury, — that is, of using ordinary care in avoiding injury after he discovers the auto in a position of danger. The evi- dence is undisputed, however, that a policeman gave a signal, but the motorman states that he endeavored to stop and did stop the car after he saw the policeman, and that he did not see anything else but the police officer. Those are the items in evi- dence to which the jury must affix legal consequences, if there are any to be applied. The rule of law applicable to the sit- uation disclosed in the evidence is that after the motorman saw the policeman from the car, — whether he observed the signal or whether he did not, — it was his duty to observe ordinary care in the management of the car and by the use of the facilities which he had at hand to use reasonable care to stop the car. If it should appear to the jury that by the exercise of ordinary care, and in the use of the appliances at hand, he could have stopped the car in time to have avoided the collision w<^th the auto, and he failed to do that, then there would be a liabiHty. But if after seeing the police officer the motorman exercised due care and used all of the appliances that he could and did all that he reasonably could under the circumstances and was un- able to stop the car, and did not see the auto, nor the light there- on, and was unable by the exercise of due care to stop the car in time to avoid the colli ision, then the company may not be held liable for the injury. 4. Duty of person in cliarge of automobile. The attention, of the jury is directed to the conduct of the serv'ant or agent in charge of the automobile. It was the duty of such servant or agent when he found that his machine would not readily move by the power of its engine, to take such steps with the means at hand for the protection of the machine from probably colli- sion with the street car, — especially when he knew lliiit the car was approaching, — as ordinary care and prudence rtMiuircd, considering the conditions, the darkness of the night, the nuinbcr of persons in company with the servant of the plaintiff, their 2140 INSTRUCTIONS TO JURY. knowledge of the approaching car, the ability of the persons present to move the car from the tracks. 5. // auto driver negligent — To hold railway company, it tnust he guilty of new and independent act of negligence. If it should be concluded by the jury that the servant of plaintiff was neg- ligent and careless in the handling of the machine and in pro- tecting the same from collision, to hold the defendant liable for the injury in such case it must be established by the evidence that the defendant company introduced into the situation a new and independent act of negligence without which there would have been no injury committed, and such act must be regarded by you as the proximate cause of the collision or injury.^ In other words, if plaintiff was guilty of negligence, — that is, if plaintiff was guilty of negligently having the machine on the tracks and the jury should find that the motorman could or ought to have discovered the peril of the machine, or, that hav- ing discovered its position that he failed to use ordinary care to avoid the collision by stopping the car, then either the act of failing to discover the peril of the auto, or the failure to use ordinary care to stop the car after discovering it, or after being signaled, would constitute an independent act of negligence. But either failure of defendant to discover the machine, or failure to use ordinary care to stop its car after being signaled must be the proximate cause of the injury in order to hold it liable. If the defendant company's motorman was unable by the exercise of ordinary care to discover the auto on the track, or if he was unable after being signaled by the officer by exercis- ing ordinary care to stop the car, then the company was not guilty of any negligence and is not liable for the injury. Negligence as applied to both parties in this case is the failure of either to exercise ordinary care under the circumstances in the case. In deciding the question whether the defendant exer- cised ordinary care or was negligent, the jury may consider the claim made by the parties concerning the speed of the car, whether it was excessive or not, whether it had any material STREET RAILWAYS. 2141 bearing on either the want of care or the exercise of due care on the part of the defendant. 6. Speed of car — Opinion of icitnesses to he received with caution. On this question the jury may consider the ordinance of the city and the opinions of the witnesses concerning the speed. As the opinion of non-expert witnesses, — that is, those who have no special knowledge of the speed of street cars, may be formed with little observation and scant opportunity to ob- serve the rate of speed at which a car is claimed to have been running, the jury should receive and consider such evidence with caution and circumspection. If it should appear to the jury that the res gestae, — that is, the transaction presented by the case, — renders an opinion as to speed impossible, or highly improbable that the estimate or opinion given is correct, the jury may in its discretion, reject it. Estimates of speed are so regarded in the law as not to be of such character of evidence as to be considered in that which is regarded as contradictory, or such as to be considered on the question of the credibility of witnesses ; that is, in case of conflicting statements. That means one witness may give one estimate and one witness will give another estimate, and in hearing and considering the ques- tion of credibility, the jury would not be warranted in con- sidering that the credibility of any witness was affected by any expression of opinion as to the speed of a car. The court merely gives you these precautionary instructions concerning your duty, and the matter is entirely within your judgment and discretion, as you are the sole judges of the facts." 7. Form of verdict. The court has now given the rules of law applicable to the claims of each party to the action. If the jury find that the defendant failed to use ordinary care, and by reason of such failure did not discover the auto on its track, or if it did not observe ordinary care after being signaled, and such negligence was the cause of the injury, your verdict sliould be for the plaintiff, and in such case you will assess liim such damages as will be measured by the nature of the injury as appears in the evidence. 2142 INSTRUCTIONS TO JURY. If you find that defendant was not guilty of negligence in either of the respects mentioned, your verdict should be for the defendant. If you find that the injury was caused by pure accident, or if you find that the collision was caused by the sole neglect of the servant of the plaintiff in charge of the car, and that the defendant railway company was not guilty of any neg- ligence in the matter, your verdict should be for the defendant."' iNehring v. Conneticut Co., 84 Atl. 301 (Conn.), 8 St. Ry. Rep. 489. 2 Nicholson i\ Scioto Valley Tr. Co., 14 X. P. (N.S.) 177, 188; Happe v. Railway, 61 Wis. 357; Moore on Facts, sec. 120; Central of Ga. Ry. V. Waxelbaum, 111 Ga. 812. 3 Gregg V. Columbus Railway & L. Co., Franklin Co. Com. Pleas. Kin- kead, J. Sec. 2317. Duty of motomian on meeting- horse coming in opposite direction becoming frightened. The jury is instructed that the rights of the driver of a horse and of the manager of an electric car meeting upon a highway are equal and each must use the way with a reasonable regard for the safety and convenience of the other.^ The motorman in charge of such car, when running it at the ordinary rate of speed, is not required to stop or lessen the speed of the car when observing that a horse approaching from the opposite direction is frightened, unless the circumstances are such as to indicate that the horse has or probably will be- come unmanageable upon the approach of the car, and that the driver or persons with him are or will be put in imminent danger and peril." 1 Ellis V. Railway, 160 Mass. 341. 2 Railway v. Houston, !) C. C. (N.S.) 408; see Benjamin v. L. & B. Ry. Co., 160 Mass. 341; Benjamin v. Holyoke St. Ry., 160 Mass. 3. Sec. 2318. Duty of driver of wagon in crossing track at street crossing — Ordinary care — Look and listen. The jury is instructed that the law does not require one who is about to drive a team [or automobile] across a street car track at a street crossing to stop, or to look and listen for an STREET RAILWAYS. 2143 approaching car in the same manner as when crossing the track of a steam railroad. The rule of conduct which applies to and governs such a driver is that he shall use ordinary care in driv- ing across the track. Such care must depend upon the condi- tions and circumstances of the particular case. If they are such as would require a prudent and careful person to stop and look, then he should do so before crossing. If he failed to do so, he would be negligent. If the circumstances are such that un ordinarily prudent person would be warranted in passing across the tracks without stopping or looking, then he would not be guilty of negligence for failing so to do. The question is for the jury to determine from all the facts and circumstances. So, therefore, if the jury finds, etc. Sec. 2319. Duty of driver of vehicle about to cross track at street crossing — Ordinary care only reqtdred. The rule of care which the law exacts of one wlio is about to drive across the track of a street railway crossing, is that he shall use ordinary care for his own safety, such care as reason- ably prudent persons would or should ordinarily use under the same or similar circumstances. The rule of looking and listen- ing as required when crossing steam railroads does not apply. And it may not always be required that such driver shall look and listen for an approaching car. The degree of caution or watchfulness will depend upon the circumstances. Ordinary care requires that he should use his faculties for his own pro- tection and safety.^ 1 Traction Co. v. Brandon, 87 O. S. 187; Street Ry. v. Westenhuher, 22 C. C. 67; affd. 65 O. S. r)67 ; Railway v. Kiner, 17 C. C. (N.S.) 431; Railway v. Snell, .'54 0. R. 107. Sec. 2320. Driver of vehicle arriving at street crossing in advance of street car has prior right to cross. The jury is instructed that the driver of a vehicle arnviiig at a street crossing in advance of a car has tlie prior right to 2144 INSTRUCTIONS TO JURY. cross the track of the railway company. While he is in the act of crossing he may assume that the approaching car is being operated in a careful and prudent manner and is under reason- able and proper control, and that its speed does not exceed that fixed by municipal ordinance. Such driver has the right under such circumstances to proceed to cross the track even though in doing so may require that the speed of the car be reduced or slackened, or even though it might require that the car be brought to a full stop to avoid a collision.^ 1 Mansfield Ry. L & R Co. v. Kiner, 17 C. C. (X.R.) 431; court of appeals. The foregoing is a strong statement of the law, too stringent for the larger cities of the state. Under the new system, however, a rule ajjplied in a small city becomes the supreme law fo.- the larger cities. To say generally that a vehicle arriving in advance of a car has a prior right without further detail of circumstances or conditions is hardly a fair rule to be applied in many cases arising in cities. See Carrahar v. Railway, 198 Mass. 549, 85 N. E. 162, 126 Am. St. 461. Sec. 2321. Relative rights of street car ajid driver of vehicle at street crossing. The jury is instructed that the driver of a vehicle and of a street railway company at a street crossing each have an equal right to use the street at such point. This right is subject to the qualification that due allowance is to be made for the fact that the car runs upon a fixed track, and by reason of its greater weight it is less easy to stop than the smaller vehicle. The different right which the railway company has arises from the necessity of the car confining its tracks, and the consequent inability to turn out to avoid collision. The law imposes a duty on the motorman operating a street car to be on the lookout, as it does upon the driver of another vehicle. Furthermore, the duty is imposed on the company to so operate its cars, by the exercise of reasonable care, as to keep them under ordinary control at street crossings in order STREIET RAILWAYS. 2145 thereby to avoid injury to those first reaching the crossing and exercising their right to cross.^ 1 Traction Co. v. Brandon, 87 O. S. 187. See Railway v. Hunter, 10 C. C. (N.S.) 564, for a different form of request, a part of whicli was approved. Sec. 2322. Duty of motorman to discover vehicle about to cross track and avoid injury. Where the motorman of a street car which is being operated on a public street in a much frequented part of the city, dis- covers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track at a street crossing, in front of such car, it is the motorman 's duty to use ordinary care and vigilance to stop or check the car in order to avoid a collision.^ 1 Traction Co. v. Brandon, 87 0. S. 187. Sec. 2323. Contributory neg-lig-ence of children at crossings. It was the duty of the decedent (or plaintiff) to conduct her- self with ordinary prudence and care in passing over the rail- road crossing, such prudence and care as was commensurate with the existing dangers known to her, or that reasonably ought to have been known to her under the then existing circumstances, such as a child of her age would ordinarily exercise under like circumstances. If she knew or had sufficient judgment to appreciate the hazards of the railroad crossings, and undertook to cross the same while the trains of said company were passing upon its tracks near and over said railroad crossing, she took upon herself the risks incident thereto, but her conduct should ^' not be judged by the same rule as that of adults. And while it was her duty to exercise ordinary care and prudence to avoid the injury complained of, ordinary care for her would be that degree of care which children of the same age of ordinary care and prudence are accustomed to exercise under similar circum- stances. All her conduct is to be treated in this light. * * * If you find by a preponderance of the evidence that the decedent was so guilty of negligence that directly contributed to her death, the plaintiff can not recover, for it was the duty of the decedent, 2146 msTRucTioNs to jury. at the time of her decease, to exercise ordinary care and pru- dence, and care and prudence of a child of her years and under- standing, under all the circumstances then known to her, or that reasonably ought to have been known to her. But if you do not find her guilty of contributory negligence, and you do find under these instructions that the defendant was guilty of negligence herein defined and limited, your verdict should be for the plaintiff, and for such amount of damages as you shall find under the instructions given you upon that sub- ject.* 1 Voris, J., in Gaston v. Lake Shore K. R. Co., Lorain Co. Com. Pleas. Sec. 2324. Presumption of negligence from collision — Burden cast on defendant. The jury is instructed that where a passenger, in an action against a street railway company, shows that he was injured as the result of a collision at a railroad crossing with a railroad train, the presumption arises that the collision was due to the negligence of the company, thereby throwing the burden on the company to show that the collision was not due to its negligence.* 1 Parker v. Railway, 153 Iowa, 254, 133 X. W. 373, Ann. Cas. 1913, E. 174; Osgood V. Traction Co., 137 Cal. 280. Sec. 2325. Prima facie negligence from collision. If you find from the evidence that plaintiff took passage in one of defendant's cars to ride from to , and while thus riding in the car of the defendant company, and without negligence on her part, a car of the defendant company on the same track, running at a high rate of speed, collided with the car upon which the plaintiff was riding, and from such collision she was injured, a prinm facie presumption of negligence arises against the defendant company, and that such presumption must be explained away or accounted for by the defendant before it STREET RAILWAYss. 2147 can absolve itself from the liabilities arising from this presump- tion of negligence.^ iGillmer, J., in Klipp r. Trumbull Electric Railroad Co. See Bootli on St. Rys., sees. 323, 361; North Chicago St. Ry. r. Colton, 29 N E Rep. 899, 32 JVIinn. 1. The degree of care which should be exercised to avoid collisions is such watchfulness and precaution as are fairly proportioned to the dan- gers to be avoided, judged by the standard of common prudence and experience. Id., sec. 309. Sec. 2326. When person signals car intending to board it is to be treated as passenger. The negligence charged in the petition is that, after signaling the car to stop for the purpose of boarding it, the car did stop at the point named in the petition, and that as plaintiff had taken hold of the handle bar and had started to board the car the defendant company did not give the plaintiff sufficient time to get on the car, but that the conductor negligently signalled the motorman to go ahead before the plaintiff had time to board the car, and the car started with a jerk throwing plaintiff to the street. A street railway company does not owe any duty to a person as a passenger until he has placed himself in such position that, under the rules of law, he is to be treated as a passenger. And whenever any person who intends to become a passenger upon a street car has signalled the car to stop, and places liimself in such position that the conductor, using his ordinary senses, is able to discover, learn and know that the person is intending to become a passenger, then it is the duty of the conductor to treat him as such and to give him a reasonable opportunity to board the car. Unless the person so intending to become a passenger does so place himself in such position that the con- ductor may reasonably know and understand that lie intends to become a passenger, there is no duty owing to such person on the part of the company, and it must appear in this case that the plaintiff did place himself in such position that the con- ductor had reasonable opportunity to know and learn tliat he was intending to board the car.^ 1 Lawrence v. Ry. & Light Co., Franklin Co. Com. Picas. Kinkead, J. CHAPTER CXXXVI. SURETIES. SEC. SEC. 2327. Liability of sureties on bond 2328. Contract strictly construed — of agent, where agent had When creditor accepting previously defaulted — sureties bound to inform Duty of company to them as to the business sureties. of suretyship — Security for pre-existing debt. Sec. 2327. Liability of sureties on bond of agent, where agent had previously defaulted — Duty of company to sureties. *'If A. B., at and before the time the bond was required of him, was intentionally and dishonestly a defaulter to the com- pany, as to moneys intrusted to it, which he had received as its agent, and that the witness acted for said company in demand- ing and receiving the bond, and, before receiving the same, either knew of such default, or if he did not know it, believed upon reasonable and reliable ground of information or belief, that such default existed, then, if suitable and reasonable oppor- tunity existed, it was the duty of the witness, as the agent of the company, to make known to the sureties, upon the bond such fact of A. B.'s delinquency, or witness' belief of such delinquency, before accepting the bond, although witness did not know before the bond was signed by the sureties who they were to be, and, as witness did not give such information, if the sureties, in signing the bond, acted under a belief from its re- citals that the company considered A. B. a trustworthy person, and would not have signed the bond but for such belief, then the plaintiff can not recover against the sureties, or either of them. 2148 SURETIES. 2149 "But if A. B. had not been a defaulter at the time of the acceptance of the bond by witness, or if he was so by mere mis- take, or other cause not involving intentional wrong, and the witness, at the time aforesaid, knew" or believed such delinquency existed, it was not the duty of witness to make this knowledge or belief known to said sureties, or either of them, and his failure to do so would not vitiate the bond. "Or if witness was, at the time of accepting the bond, at such a distance from the said sureties that, under the circum- stances shown by the testimony, he could not reasonably inform them of such delinquency, he was not bound to give them this information, although the agent had been dishonestly a defaulter, and the witness knew or believed that fact, and his failure to do so would not vitiate the bond or prevent plaintiff from recov- ering upon it against the defendants."^ iDinsmore v. Tidball, 34 O. S. 411. Sec. 2328. Contract strictly construed — When creditor accept- ing sureties bound to inform them as to the business of suretyship — Security for pre-ex- isting debt. The law applies a strict construction to contracts of surety- ship. If a creditor induces a surety to enter into a contract of suretyship by any fraudulent concealment of material facts, the surety will be thereby released. The contract of surety- ship, as a general rule, is for the benefit of the creditor, while the surety derives no advantage from it. Hence the law imposes upon the creditor the duty of dealing with sureties, at every step, wdth the utmost good faith. It can not always be said that the creditor before accepting sureties, is bound to inform them con- cerning information touching the business of tlie suretyship which may be within the knowledge of the creditor, and whicli might increase the risk of tlie undertaking on the part of the surety. This will depend upon the peculiar circumstances of the given case. If there is nothing in the circumstances sur- rounding the business of the suretyship to indicate that the 2150 INSTRUCTIONS TO JUBT. sureties are being misled, or deceived, or that they are entering into the contract in ignorance of facts materially affecting the risks thereof, then the creditor in such case is under no obliga- tion to communicate facts within his knowledge, but may assume that the sureties know the material facts or that they are willing to assume the risks of the undertaking if they sign the note. But if the creditor knows, or has good grounds for believing, that the sureties are being deceived or misled, and he believes that the sureties may not enter the relation and assume the obli- gation, if they become aware of material facts known to the creditor and the debtor, including their intent and purpose, that is the debtor and creditor, and the creditor has an oppor- tunity before acepting the undertaking, to inform the sureties of such material fact, good faith and fair dealing demands in such case that the creditor should make such disclosures to them ; and if he accepts the contract under such circumstances without doing so, the surety may avoid the same. In the foregoing statement of the law, in its application to this case, the .jury will understand that when the court uses the term "creditor" it comprehends the plaintiff, and that the debtor or principal applies to H., and sureties to the defendants. Whether a failure of the creditor in such cases to disclose facts kno\\'n to him and not kno^\^l to the sureties, may be deemed fraudulent, will depend largely upon the character of the busi- ness to which the suretyship relates, and the knowledge, oppor- tunity, situation and relation of the sureties thereto. It is a conceded fact in this case that the principal, H., was in debt to a considerable amount on a long-standing, pre-existing obliga- tion on a running account for merchandise sold and delivered by plaintiff to him, which was giving plaintiff some concern. It is also a conceded fact that the plaintiff credited the amount of the $ note to the account of H., and kept on furnishing goods to II. until he had exceeded the credit secured by plaintiff by the $ note. It is conceded also that plaintiff sold the note to a third party who discounted it in bank, and upon fail- ure of the defendants to pay the same at maturity, plaintiff SURETIES. 2151 took up the note in bank, paying the amount to the bank then due upon it. Now, gentlemen, applying these fundamental principles of law which I have given you to this case, if it appears to you from the evidence that after H. and P., the latter acting within his authority for the plaintiff, learned that H. could not obtain a loan upon the note w-ith the defendants as sureties, that H. and plaintiff obtained this note with the defendants as sureties, and that the same was delivered and accepted by plaintiff with the intent and purpose on their part to apply it as a credit on the old and pre-existing debt of H. to plaintiff, and to hold the balance as security for future indebtedness; and if it also ap- pears that the defendants did not know of the pre-existing debt of H. to plaintiff, or of the amount and extent thereof, and if plaintiff knew, or had good grounds for belie\ang, that defend- ants were signing and did sign the note in ignorance of the pre- existing debt of H., and the amount and extent thereof, and that they did not know that the same was to be applied as a credit upon that debt, and plaintiff failed to inform them con- cerning the same, and H. and plaintiff, through its agent, P., used any artifice to conceal from the defendants their purpose to use it as a credit on their own debt, and if the jury find that defendants would not have signed the note had they known of the existence of the pre-existing debt and of a purpose to use the note to liquidate the same, and for future credit ; and if the jury find that defendant signed the note both without knowledge of the nature and extent of the pre-existing obligation, and with- out knowledge of the inability of II. to pay a loan upon the proposed note with defendants as sureties, and without knowl- edge of the intent and purpose of plaintiff to apply the note to the credit of the pre-existing debt and account of II. in the manner in which tlie undisputed evidonco shows it was done, then the jury should find that the plaintiff had been guilty of fraudulent concealment of material facts releasing defendants from their obligation, and your verdict should be for the de- fendants. 2152 INSTRUCTIONS TO JURY. But if, on the other hand, you find that the defendants had knowledge of tlie pre-existing debt of H. to plaintiff, or if you find that the circumstances were such, by the application of the principles of law heretofore given you, that there was no good reason for believing that the defendants were being misled in the matter with reference to the pre-existing debt, and that they knew the purpose for which the loan was to be used, and was used, then the fact that it was used to secure a pre-existing debt of 11. will not operate as a release to them.^ a David Davies Packing Co. v. Trautman, et ah, Franklin Co. Com. Pleas. Kinkead, J. Authorities on pre-existing debt, etc. Fassnacht v. Erasing, Gagen county, 18 Ind. App. 80, 63 Am. St. 322' and note, p. 327; Warren v. Branch, 15 W. Va. 21; cases cited p. 333 of 63 Am. St.; Lee v. Jones, 17 Com. B. N. S. 482; Stone v. Compton, 5 Bing. 142; Pedock v. Bishop, 3 Barn. & C. 605; Hamilton v. Wal- son, 12 Clark & F. 109; Wason v. Waring, 15 Beav. 151; Daughty V. Savage, 28 Conn. 146; Comstock v. Gage. 81 111. 328, 6 N. P. 31, 3 O S. 302. CHAPTER CXXXVIL TENDER. SEC. SEC. 2329. Definition and object of tender. Sec. 2329. Definition and object of tender. The jury are instructed that when a party has entered into an obligation (either) to pay money, (or) to deliver goods, (or) to perform services, and, by some outward expression or act, in effect tenders or offers to perform the obligation in the manner agreed upon, the law considers that he has, in fact, substan- tially performed it. A tender is an offer (either to pay a debt or) to perform an obligation. To be effectual, the party mak- ing it must continue ready and willing to pay or perform the obligation, and must have the ability to perform. The effect of a valid and legal tender is, that the party acknowledging an indebtedness of the amount tendered (or of an obligation to perform an act) is to stop the running of interest, and to pro- tect him from the payment of costs. ^ To be effective as a tender it must be kept good by the pay- ment of the money into court for the plaintiff;^ and it must be actually offered to the person to whom it is made, so that lie can see it,^ and it must be the amount actually due.* If you find from a preponderance of the evidence that the defendant has complied with all these requirements, then you may be justified in- finding that a tender has been made. But if you find that the defendant merely expressed a willingness or readiness to pay without offering a definite sum or the amount actually due, and that he did not actually produce and offer to pay, and that he did not keep sucli offer good l)y tcndi^ring or depositing it in court, then you can not find that a tender wjis made."* 2153 2154 INSTRUCTIONS TO JUEY, The defendant need not, however, actually produce the money where the plaintiff has done something which would make it unnecessary, as where the plaintiff says that the defendant need not produce it, that it would not be accepted.* iHalpin v. Ins. Co., 118 N. Y. 165; Tiedman on Sales, sec. 139. 2 Armstrong v. Spears, 18 O. S. 373. 3 Pinney v. Jorgensen, 27 Minn. 26; HofiFman v. Van Dieman, 62 Wis. 362. 4 5 Mass. 36,5. cMust actually produce the money, 41 Cal. 420, 8 Neb. 507, 46 Barb. 227. e 8 O. 173, 8 Neb. 507, 10 Cash. 267. CHAPTER CXXXVIII. WILLS. SEC. 2330. 2331. 2332. 2333. 2334. 2335. 2336. 2337. Who may make a will. Requirements of valid will. Witnesses need not see testa- tor sign, if acknowledged before them. Declarations of testator to show condition of mind. Instructions to jury in con- test of wall. 1. The issue. 2. Order of probate, prima fade, evidence — Burden of proof. 3. Degree of proof — Prepon- derance — Probabilities. 4. Capacity to make will — Essentials. i. Proof of undue influence. 6. What constitutes undue influence and restraint. 7. Declarations after making will. 8. Directions as to verdict. Insane delusion. Old age and sickness, as afifect- ing mental capacity. A concise charge in will con- test in diff^erent form, embracing: 1. Who may make a will. 2. Probate of will prima facie evidence — B u r d e n of proof. SEX3. 2338. 2339. 2340. 2341. 2342. 2343. 2.344. 3. Testator must be of sound mind and memory. 4. Testator must know extent and value of property, and natural objects of his bounty. 6. Provisions of will to be considered. 6. Need not be technically insane — Weakness of in- tellect sufficient when — 7. Undue influence. 8. Inequality or injustice of will. Consideration of the vnW itself. What, if anything, may be in- ferred from will. Moral depravity — As affect- ing mental capacity — Notable charge of Long- worth, J. Undue influence — What con- stitutes — - Another form. Undue influence — Ix)ng- wortli, J. Undue influence — Pursuasion to make will — Flattery — Appeals to affections. Nuncupative will — Words written dow.n not those spoken. Sec. 2330. Who may make a will. Under the law of Ohio any person of ftill ap:e and sound mind and memory, and not under any restraint, having any i)roperty, 2151 2156 INSTRUCTIONS TO JURY. personal or real, or any interest therein, may give and bequeath the same to any person by last will and testament, lawfully exe- cuted.^ The law further requires that the will in controversy being a written one, shall be signed at the end thereof by the said (testator), or by some other person in his presence by his ex- press direction, and shall be attested and subscribed in the pres- ence of said (testator), by two or more competent witnesses, who saw the said (testator) subscribe or heard him acknowledge the same.' 1 Code, sec. 5914. 2 Cyrus Newby, J., in Graham v. Graham, Highland Co. Com. Pleas. R. S., sec. 5916. Sec. 2331. Requirements of a valid will. In order that it may be his last will and testament, he must have been of full age, that is, at least twenty-one years of age, at the time of executing it, of sound mind and memory, and not under any restraint, and have property, real or personal, or some interest therein. It is further necessary that the paper produced as his will vshould have been signed at the end thereof by the said (testator), or by some other person in his presence, and by his express direction, and attested and subscribed in the presence of said (testator), by two or more competent witnesses, who saw the said J. G. subscribe or hearl him acknowledge the same. If any one of these requisites should be lacking in the exe- cution or attestation of the paper produced as the last will and testament of said (testator), it would not be a lawful will, and its probate should be set aside.^ 1 Newby, J., in Graham v. Graham, Highland Co. Com. Pleas. Sec. 2332. Witnesses need not see testator sign if acknowl- edged before them. It is not required that the subscribing witnesses to the will should have signed the same in the presence of each other,^ but they must have subscribed the same in the presence of the tes- tator. Nor is it required that both subscribing witnesses should WILLS. 2157 have been present at the signing of the paper claimed to be the mil of said (testator) or, in fact, that either should have seen the said testator subscribe the instrument, but in case either should not have seen the said testator subscribe said paper, then it becomes necessary that the testator should have acknowledged to the witnesses that the paper which he had signed was his last will and testament.- This acknowledgment by the testator is not required to be in any particular form of words, or in any specified manner. But the testator must, by some words, con- duct, or the attending circumstances, give the witnesses to under- stand that he acknowledges the signature to the instrument as his, and the instrument itself as his wdll.^ 1 Raudebaugh v. Shelley, 6 0. S. 306. 2 Reynolds v. Shirley, 7 0. (pt. 2) 39. sNewby, J., in Graham v. Graham, Highland Co. Com. Pleas. See charge in Haynes v. Haynes, 33 0. S. 610. There need he no precise form of acknowledgment. "It is not necessary that any precise form of words should be used by the testator in acknowledging either his signature or will. It will be sufficient if by signs, motions, conduct, or the attending circumstances, lie gives the attesting witnesses to understand tliat he acknowledged the will and the signature to be his. If, therefore, you shall find from the evidence that Mr. H. authorized Mr. A. to sign his (H.'s) name to the will when no other witness was present, and A. did so sign the will in the presence of H., and afterward, on the same day, Mr. H., either by words or signs, motions, conduct or the attend- ing circumstances, give the attesting witnesses to understand that he acknowledged the signatures, and requested them to attest the will, and that they did so attest the will in his presence, this will be a sufficient acknowledgment and attestation of the signature, and your verdict should be for the defendants and the will." Id. Sec. 2333. Declarations of testator to show condition of mind. The declarations of a testator made after tlie execution of his will are admissible only for the purpose of showing his condi- tion of mind, and must not be used to prove the fact that undue influence or fraud were used to induce him to make tlie will in question, except in so far as they may evidence a condition of mind easily subjected to such influence at the date of his will. You must bear in mind, however, that the verbal statements. 2158 INSTRUCTIONS TO JURY. admissions or declarations should be received with great caution. The evidence, consisting as it does in mere repetitions of oral statements, is subject to much imperfection and mistake; the party testifying to them may be misinformed or may have mis- understood the testator. It frequently happens, also, that the witness by altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say.^ 1 Newby, J., in Graham v. Graham, Highland Co. Com. Pleas. The declara- tions of the testator, made at about the time of executing his will, are admissible to show his capacity and the state of his affections. Rule r. Maupin, 84 Mo. .587. A testator's declaration before making liis will that his children lacked natural affection are admissible to show his state of mind. What- ever is material to prove the state of one's mind and what were his intentions can be shown by his declarations and statements, the truth of such statements being immaterial. Wilkinson r. Service, 249 111. 146, 94 N. E. 50, Ann. Gas. 1912, A. 41. See Page on Wills, sees. 400, 423. Sec. 2334. Instructions to jury in contest of will. 1. The issue. 2. Order of probate, prima facie evidence — Burden on plain- tiff. 3. Degree of proof — Preponderance — Probabilities. 4. Capacity to make a will — Essentials. 5. Proof of undue influence. 6. What constitutes undue influence and restraint. 7. Declarations after making of ivill. 8. Directions as to verdict. 1. The issue. The issue whether or not the paper writing is the last will and testament of W. F. R., is made up by an answer filed by T. B. R., in which she denies the invalidity of the Avill, denying that W. F. R. was of unsound mind, or that he was mentally incapacitated for making a will. She denies that said decedent was coerced into signing the paper writing by her undue influence. WILLS. 2159 Tlie questions for the jury to determine, therefore, are whether W. F. R. at the time of making and executing the paper writing purporting to be his last will and testament was of sound mind and memory; whether or not he signed the paper of his own volition ; whether he signed it under undue influence or duress exercised over and on him by T. B. R. ; and whether the paper writing is his last will and testament. 2. Order of probate, prima facie evidence — Burden on plaintiff. The law of this state is that the order of probate of a will is prima facie evidence of the due attestation, execution and valid- ity of the will. That is, such will and order of probate furnish such an amount of evidence that, were no further evidence of- fered, the defendants would be entitled to a verdict sustaining the will as probated by the probate court. The parties having admitted in this ease that the will in question was properly attested and executed so far as the formal requisites prescribed by law are concerned, the only question at issue are those relating to the mental capacity of the deceased, and to the alleged undue influence exerted upon him at the time of the execution of the wall. The jury is therefore instructed that as the order of probate is prima facie evidence of the due execution and validity of the will, it therefore devolves upon the plaintiff to prove by a preponderance of the evidence that at the time the will was so signed, acknowledged and attested the said W. F. R. was not of sound mind and memory, or that at the time the said testator was under restraint or undue infinonce. If the plaintiff proves by a preponderance of tlie evidence either of these things as to which the burden of proof is on him, then you should return a verdict finding the paper produced not to be the last will and testament of the deceased. But if the plaintiff has failed to prove that the deceased was not of unsound mind and memory, or that at the time th(> will was exe- cuted he was not under any restraint or undue inHucncc, you should in that case return a verdict sustaining the will. 3. Degree of proof — Preponderance of evidence — Prohahilities. By a preponderance of the evidence is meant the greater weight 2160 LNSTEUCTIONS TO JURY. thereof. The evidence may be said to operate in favor of one party whenever the greater weight thereof, when freely and fully considered, is in favor of the claims of such party. The nature of controversies and testimony concerning the same is such that it is not always possible for a jury to be assured of the absolute truth of the facts in issue. Consequently, the rule of law with reference to the interpretation of the degree of evidence prescribed for civil cases, such as this one is, that the jury need not find the existence of any material fact to a degree of certainty, it being essential only that the probabil- ities when weighed by them, preponderate in favor of the fact which they find to be established by the proof. If the evi- dence in this case sliows to your minds that it is more probable that tlie deceased R., at the time that he made and executed the will in question, was under restraint and undue influence, or wa.s mentally incapable of making the same under the rules of law given you by the court, then and in that case the plaintiff ^^^ll have to make out his case by a preponderance of the testimony. On the other hand, if the evidence should not show it more prob- able that the testator, R., was mentally unsound or was of unsound mind and memory, or that he was under unlawful restraint or influence, or if tlie evidence on these points be evenly balanced, in either event tliere would be no preponderance in favor of the plaintiff, and you sliould in such case return a verdict sustaining the will. The defendants are entitled to a verdict sustaining the will as probated, unless the preponderance of the evidence is in favor of the plaintiff on at least one of the grounds which they are required to establish as they are alleged in the petition of plaintiff, by a preponderance of the evidence. 4. Capacity to make a tviJl — Essentials. Witli reference to the capacity of a person to make a will, the jury is instructed that it is necessary that a man shall have mental capacity suf- ficient for the transaction of the ordinary affairs of life, and if he possesses this, though he may be feeble in mind ond body from sickness, old age or other cause, he has a legal right to dis- pose of his property as he sees fit without regard to the wishes WILLS. 2161 of others. The law does not undertake to test a man's intelli- gence or to define that exact quality of mind and memory which a testator must possess, but it does require him to be capable of knowing the extent and value of his property, the names or relationship of those who are natural objects of his bounty, their deserts in reference to their conduct or treatment toward him, their conditions and necessities, and he must be capable of re- taining all these facts in his memory long enough to have the will prepared and executed. He may not have sufficient capacity to make a contract, but he must understand substantially what he is doing; the nature of the act in which he is engaged, the extent of his property, the relations of others who may be or ought to be the objects of his bounty, and the scope, bearing and effect of his will, and he must have sufficiently active memory to collect his mind without prompting ; he must understand the elements of the business to be transacted, and hold them in his mind a sufficient length of time to perceive and consider their obvious relations to each other, and be able to form some rational judgment in reference to them, although he may not be able to understand and appre- ciate these matters in all their bearings as a person in sound and vigorous health of mind and body would be. In determining the question of mental capacity, it is your duty to take into consideration the provisions of the will itself in connection with all the other- testimony, and also the sur- rounding circumstances, not only as bearing on the question of mental capacity, but that of undue influence as well. It is not necessary that the testator be shown to be technically insane. Weakness of intellect or loss of memory, whether oc- casioned by a disease or great bodily suffering, or infirmity, or from all these combined, may render the testator incapable of making a valid will, provided such weakness of intell(>ct or loss of memory really and in fact disqualifi<'d him from knowing or appreciating the consequences and effect oi' bis act an.l of fairly considering and weighing the just deserts of the natural objects of his bounty. But weakness of mind or memory arising from 2162 INSTRUCTIONS TO JURY. any cause, will not disqualify the testator from disposiLg of his property by will, unless such weakness goes to the extent of ren- dering him incapable of appreciating the nature and extent of his property, the rights and claims of those who are the natural objects of his bounty, and the nature and consequences of the will he is about to make.^ 5. Proof of undue influence. The proot of undue influence can seldom be made by direct evidence, and the law does not require it; but the circumstances must be such as- to justly lead to the inference that undue influence was employed and that the will did not express the real wishes of the testator. You should look into the character of the mind of the testator, his manner of living, the relations which he sustained to all members of his family, and the provisions of the ^v^ll itself. While the apparent inequality or injustice, even, in the provisions of a will, are not of themselves a sufficient reason for annulling the will if other- wise valid, yet those provisions may present" potent circumstances reflecting both upon the testator's capacity as- well as the opera- tion of influence upon his mind, thou^^h a person perfectly rational and sound may be subject to control by influence- from others. Therefore, it is not necessary in proving undue influ- ence or restraint that there should also be proof of incapacity, though the proof of one may tend to prove the other. While you may consider the pro^^sions of the will, still you must re- member that it is not your province to pass on the justice or the fairness thereof, but its provisions may be considered in connec- tion with all the testimony and the circumstances surrounding the testator, for the purpose of determining whether it has such existence. You are not at liberty to make a will for the testator, but simply to decide whether the one he has attempted to make is sanctioned by and fulfills all the requirements of the law.- 6. What co^istitutes undue influence and restraint. To con- stitute undue influence and restraint, it must appear that there was such influence and restraint as caused the execution of the will by the testator against his o\\ti desires in the matter. It must appear by a preponderance of the evidence that such undue WILLS. 2163 influence and restraint was practiced with reference to the will, and it must have affected or brought about the provisions of the will, or some of them. Unless it has in some manner affected the making of the will, or some of its provisions, it can not inval- idate it. It must destroy the free agency of the testator. It is not required that any physical force should be used, but any restraint, or threats, or influence brought to bear upon the tes- tator, or persistent importunities which he has not the strength to resist, if exerted so as to coerce him against his desire and purpose in making his will, or any of its provisions, is undue influence within the meaning of the law. It matters not how slight or how great the influence may be, so long as it destroys the free agency of the testator. It is immaterial what argument, influence or persuasion were brought to bear upon the testator, provided that in making his will he carried into effect his own will and intentions and not those of another. It is not unlawful for a person by influence, intercession and persuasion to induce a will in his or her favor, neither is it unlawful to induce a testator to make a will in one's favor by fair speeches and kind conduct, for this does not amount to that kind of compulsion, improper conduct or undue influence which in a legal sense will render the will invalid. To have such an effect it must amount to a moral force and coercion destroying free agency. The test of the unlawfulness of the influence is its effect upon the testator's free agency. It must not be the influence of affection and attachment, nor the mere desire to gratify the wishes of another, but tlie undue influence and restraint required in order to render the will invalid, must be of such character and degree as to prevent the exercise of tliat discretion and .ludgment which are essential to a sound and disposing Tuind. Undue influence, like incapacity, must be shown to exist at the time of making the will. To determine this, the .lury must consider the testimony and look to the facts and circumstances occurring both before and after the ex...M.tin„ ..( 11... will as reflecting one way or the other upon the ciuestion wh.'t lu-r un.h.o 2164 INSTRUCTIONS TO JUET. influence may or may not have existed or operated upon the testator at the time he made his will.^ 7. Declarations of testator after making of will. The declara- tions of a testator made after the execution of his will, are admissible only for the purpose of showing his condition of mind, and the evidence of this character which the court per- mitted to be offered in this case must not be used to prove the fact that undue influence or fraud was used to induce the tes- tator in question to make the will in controversy here, except in so far as such declarations may evidence or show a condi- tion of mind on the part of the testator which was easily sub- jected to such influence at the date of his will. The jury will further bear in mind, too, that it is a rule of law that probable statements, admissions, or declarations are to be received and considered by the jury with great caution. The evidence consist- ing, as it does, in mere repetitions of oral statements, is subject to much imperfection and mistake. The parties testifying to them may be misinformed, or may have misunderstood the tes- tator. It frequently happens, also, that the witness by altering a few of the expressions that are used, caused an effect on the statement completely at variance with what the party actually did say. These are the reasons for the rule of caution sanc- tioned by the law concerning such testimony. You will bear in mind, however, that as already stated, such declarations are proper evidence to be considered by you in determining the con- dition of the mind of the deceased, for the purpose of enabling you to decide whether or not it was in such condition, or of such character as to be easily subjected to the influences such as are averred in plaintiff's petition and alleged to have been exerted by R. at the time of the execution of the will.* 8. Directions as to verdict. Gentlemen of the jury, these are all the rules of law which the court wishes to give you to govern and aid you in determining the issues involved in this case. You will bear in mind that you are the judges of the w^eight and of the credibility of the witnesses. You may consider the appear- ance of the witness on the stand, his or her manner of testify- WILLS, 2165 ing, their apparent candor, intelligence, or lack of intelligence, relationship, business or otherwise, to the party, their interest, if any, appearing from the evidence, their temper, feeling or bias, if any; and all other circumstances appearing in connec- tion wdth the testimony on the trial. If, gentlemen, after a full, fair and impartial consideration of all the evidence in the case, without feelings of prejudice or favor, the jury should find that the deceased W. P. R. was of sound mind and memory and not under any restraint, your ver- dict should be one sustaining the validity of the will. If, how- ever, you should find by a preponderance of the evidence that the deceased was, as alleged in the petition, either of unsound mind or memory, or that he was at the time of the execution of the will under restraint or duress exercised and exerted as alleged, your verdict should be for the plaintiff, and you should in such event hold the will to be invalid and void.^ 1 Physical weakness, failure of memory, or unimportant mistakes in busi- ness do not show incapacity. Wilson v. Wilson, 7 N. P. (N.S.) 435, 14 C. C. (N.S.) 241. Mental capacity — essentials. Wads- worth V. Purdy, 12 C. C. (N.S.) 8, 21 C. D. 110. Locomotor ataxia. Gregg v. Moore, 14 C. C. (N.S.) 5. 2 Page on Wills, sees. 132 and 421. The nature of the will may he con- sidered by the jury as a circumstance. Id., sec. 426; Crandall's Appeal, 63 Conn. 363; Pooler v. Christman, 145 111. 405. •" Undue influence, elements of. Page on Wills, sees. 127-132. « Page on Wills, sees. 361-423. 6 Troutman v. Reed, Franklin Co. Com. Pleas, Kinkead, J. Sec. 2335. Insane delusion. Your attention has been directed to the claim of the contest- ants that C. K. 0. at the time of executing the paper writing was possessed of an insane delusion concerning the cliastity of his wife and the legitimacy of her daughter L., the plaintitT. An insane delusion is defined as a diseased condition of the mind in wliich persons believe things to exist which exist, or in the degree they are conceived of, only in their own imagina- tion with a persuasion so firm and fixed that neither evidence nor argument can convince them to the contrary. 2166 INSTRUCTIONS TO JURY. Whenever a person has conceived something extravagant to exist which has still no existence whatever, but in his own heated imagination ; and whenever at the same time ha\dng so con- ceived he is incapable of being or at least of being permanently reasoned out of that conception, such person is said to be under a delusion. The insane delusion must consist at least of a mistake of fact. In order to be insane delusion, the mistake must be one which is not based upon evidence or at lea&t without any evidence from which a sane man could draw the conclusion which forms the delusion. And the delusion must be such as can not be removed or permanently removed by evidence. In most cases of delusion the delusion founds itself originally on some slight circumstance the magnifying of which beyond all reasonable bounds is nearly or quite as good in proof of its being a delusion as the taking some absurd prejudice which is utterly unfounded or that rests upon no basis. Such a delusion is called partial insanity. The law recog- nizes that there is a partial insanity and a total or general in- sanity. That a man who is very sober and of right under- standing in all other things may in some one or more particulars be insane ; and that such partial insanity may exist as it re- spects particular persons, things or subjects, while as to others the person may not be destitute of the use of reason. And sucli partial insanity, such insane delusion, if found to have con- trolled the testator at the time of making his will, which causes him to make a will he would not have made but for such delusion, would invalidate the will as if made under the effects of an insanity ever so general. The existence in the mind of the testator of mere delusions which do not affect the natural or selected objects of his bounty is not necessarily inconsistent with testamentary capacity. The jury is instructed that before this will can be set aside upon the ground of testator's unsound mind, the plaintiff must show not only the insane delusion claimed, but that such insane delusions affected and controlled the provisions of tlie will as WILLS. 2167 to M., C. or L. 0. If it existed but did not affect or influence the provisions as to them or either of them, they can not be heard to complain in this case. If you find from the evidence that although C. K. 0. had suffi- cient capacity to attend to the ordinary business affairs of life, yet if the will here offered was made at a time when the testator C. K. 0., was laboring under the influence of insane delusions concerning the legitimacy of the plaintiff and the chastity of his wife, plaintiff's mother, and is the product of such delusions or partial insanity, and that he was controlled in the making of said will by said delusions, and which caused him to make a will which he would not have made but for such delusions, then said C. K. 0. was not of sound mind and memory as is contem- plated and required by the law, and any paper purporting to be a will executed by him under such circumstances is not a valid will and the jury should, in that event, find the issue for the contestants. In determining the question of mental capacity, it is your duty to take into consideration the provisions of the will itself, in connection with all the other testimony and also the sur- rounding circumstances not only as bearing on the question of sound mind, but that of undue influence as well. The fact that the testator made no provision in his will for the children of his second wife, may be considered in connection with these ques- tions. And if it appear from the evidence that the testator before his death souglit to have such children come and live with him, offering to provide for them all the necessary comforts of life, but that they refused to do this and neglected to come and see him, of which he complained, this also may be considered as bearing on the question of the soundness of his mind, wliether testator was at the time of making his will laboring under insane delusions and was controlled by such, as well as that of undue influence.^ 1 Luella Ott, an infant, etc., v. Elizabetli E. Stein, ct al., Com. Ploaa Court, Franklin Co., Ohio. Rathmell, J. 21G8 INSTRUCTIONS TO JURY. Eccentricities, peculiarities or delusions must not affect either the natural or selected objects of his bounty. Wadsworth r. Purdy, 12 C. C. (X.S".) 8. 21 C. D. 110. Insane delusion. Page on Wills, sees. 104-109. Sec. 2336. Old age and sickness as affecting mental capacity. The law requires, as I have said to you, that the testator shall be of sound mind and memory. This requires that he shall have sufficient mental capacity to transact the ordinary business of life, and if he possesses this capacity, then he has the legal right to dispose of his property by will without regard to the wishes of others. The question for your determination upon this point is, was J. N. H. at the time of the execution of this document of sound mind and memory ? It is inunaterial how soon thereafter he may have become of unsound mind and memory, if at the time of the execution of the document he was of sound mind and memory. The purpose of the introduction of evidence touching his condition prior to and subsequent to the date of the execution of the instrument is to reflect light upon and enable you to determine what his condition was at the time of the exe- cution thereof. J. N. H. was not incapable of making a will merely because he may have become enfeebled from age, sickness or other causes so long as he retained sufficient mental capacity to transact the ordinary business affairs of life. The law does not require that he should have been able to conduct long-continued business transactions. If, however, his mind had become enfeebled from age, sickness or other causes so that its action was not such as it would have been, had his mental faculties been in a normal condition and so enfeebled and weakened that the jury finds that the paper writing does not express the real intention of a sound and disposing mind, then the paper purporting to be the last will and testament of J. N. II. would not be his valid last will and testament. The law also requires that the testator's memory be sound. A man may reason witli apparent soundness upon the facts known to him and yet that faculty of the mind known as memory WILLS. 2169 may be so weakened that facts formerly known to him may not be in his mind. Under such circumstances his ignorance of facts may cause him to act in an entirely different way from what he would have acted had such facts been known to him. The law, therefore, requires that the testator shall be able to hold in his mind the nature and extent of his property, the persons who would be the natural objects of his bounty, and their rela- tionship to him and their conditions and necessities.^ 1 John Hart, et al., v. William Hart, et al. Com. Pleas Court, Franklin Co., O. Bigger, J. Sec. 2337. A concise charge in will contest in different form, embracing — 1. Who may make a will. 2. Probate of will prima facie evidence — Burden of proof, 3. Testator must he of sound mind and memory. 4. Testator must know extent and value of property, and natural objects of his bounty. 5. Provisions of will to be considered. 6. Need not be technically insane — Weakness of intellect sufficient when 7. Undue influence. 8. Inequality or injustice of will. 1. Who may make a will. Under the law of Ohio any person of full age and sound mind and memory and not under any restraint may make a will and give and bequeath his property, real or personal, to any person or organization. 2. Probate of will prima facie evidence — Burden of proof. Wliere a will has been probated by the probate court, as in this case, that fact is prima facie evidence of the due attestation, execution and validity of the will, and the duty, therefore, de- volves upon the plaintiff to prove to you by the preponderance, that is to say, by the greater weight of tlie evidence, that the alleged will is not the last will and testament of J. S. 3. Testator must be of sound mind and memory. To make a valid will, J. S. must have been at the time he executed this last 2170 INSTRUCTIONS TO JXJBY. will of sound mind and memory. To be of sound mind and memory, as understood in law, it was sufficient if J. S. at that time understood the nature of the business in which he was then engaged, knew, unaided from any outside source or suggestion, what property he then owned and was disposing of, and realized the relationship which existed between him and those who had a claim upon his bounty and was capable of making a rational selection among them. Since the order of probate of this will raised a presumption that the paper so probated is the valid last will and testament of J. S., a verdict setting aside the said will on this ground can not be returned by you unless the evidence adduced by the plaintiff outweighs both tliis presumption arising from the order of the probate court admitting the will, and also the evidence adduced by the defendants. 4. Testator must know extent and value of property, and nature of objects of his bounty. The law does not undertake to test by any specific method a person's intelligence and to define the exact quality of mind and memory which a testator must possess, but it does require him to be capable of knowing the extent and value of his property, the names and relationship of those persons who are the natural objects of his bounty, their deserts with reference to their conduct and treatment of him or her, their conditions and necessities, and be capable of retaining all these facts in his memory sufficiently to have the will pre- pared and executed. His mental capacity is not to be measured by any exclusive test of his capacity to do any other particular act or business, but his mental capacities with reference to other acts shall be considered by you in determining the question before you here. In making this alleged will J. S. must at that time have had sufficient strength and clearness of mind and memory to know, without prompting, the nature and extent of the property of which he was about to dispose, the nature of the act which he was about to perform, the names and identity of the persons who •were the proper objects of his bounty and his several relations towards them. If a person persistently believes supposed facts WILLS. 2171 which have no real existence against all evidence of probability and conducts himself upon an assumption of their existence, then, so far as those facts are concerned, he is of unsound mind. The claim is put forth by the plaintiff that at the time he made this will, J. S. had an arbitrary belief, without cause or reason, that she was not his child. To properly measure J. S. 's mental condition in this regard, you will consider all the evidence with reference to the relationship existing between him and the plain- tiff. 5. Provisions of will to he considered. In determining the general question of the mental capacity of J. S., it is your duty to take into consideration the provisions of the alleged will itself in connection with all the other testimony and all the sur- rounding circumstances, and this you will do in determining the question of undue influence as well. 6. Need not he technically insane — Weakness of intellect suf- ficient when. It is not necessary that the testator should be shown to be technically insane ; weakness of intellect or loss of memory, whether occasioned by disease or bodily suffering or infirmity or from all or some of these combined, may render a man incapable of making a valid will, provided such weakness of intellect or loss of memory really and in fact disqualified him from knowing or appreciating the consequences and effect of his act and of fairly considering and weighing the just deserts of all the natural objects of his bounty. Weakness of mind and memory will not disqualify one from disposing of his property by will unless such weakness goes to the extent of rendering him incapable of appreciating the nature and extent of his prop- erty or the rights and claims of those who are the natural ob- jects of his bounty and the nature and consequences of the will he makes. 7. Undue influence. Capacity to make a will involves free- dom from such undue influences as constrain the partv to act against his will or subdue his will until it ceases to act for itself and acts under the dictates of the will of another. This capacity may be destroyed or overcome without actual force or coercion. 2172 INSTRUCTIONS TO JURY. Any improper or wrongful restraint, machination or urgency or persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not have done or forborne, had he been left to act freely, is undue influ- ence. Again, undue influence has been defined as any influence brought to bear upon a person entering into an agreement or consenting to a disposition of property which, having regard to the age and capacity of the party, the nature of the transaction, and all the circumstances of the case, precluded the exercise of free and deliberate judgment. It is not necessary that undue influence should have been practiced at the time of making the will, but it is sufiicient if the will was made after the influence was exerted and as a result thereof, and while the testator was under its general controlling and continuing influence. If J. S. was l)y undue influence induced to make this alleged will, then, I charge you that this alleged will was not in fact his will and you must so find. What might constitute undue influence with one person of weak mentality might not be undue influence at all with refer- ence to anotlier person of stronger mentality. Proof of undue influence must be made either by direct evidence or circum- stantial evidence or both. Such evidence must be of such pro- bative value as to lead justly to the inference that undue influ- ence was employed and that the will did not express the real wishes of the testator. You will consider all the circumstances that have been brought forth in this case, look into the character of mind of the testator, his manner of living, his environments, his relations which he sustained to the members of his family and his other relatives, and the pro^^sions of the will itself. 8. Inequalitrj or injustice of ivill. Any apparent inequality or injustice is not a reason for annulling a will, if otherwise valid. You will consider such provisions, if any you find, along with all the other circumstances reflecting upon the testator's capacity, as well as upon the question of undue influence. As a matter of law, a person, however wealthy, has a right to give nothing even to his child or children. WILLS. 2173 In this charge and in the special charges, gentlemen of the jury, it is impossible in any one sentence or paragraph to frame a complete statement of the law, and therefore you will not seize upon or excerpt any one or more of the paragraphs wth reference to the law governing this case, but you must consider all that the court has stated to you upon the subject. You have heard the witnesses, gentlemen of the jury, who have testified. I need hardly say to you that you do not weigh evi- dence by the number of witnesses who shall testify, but by the credibility which you attach to the evidence adduced. You have seen the witnesses upon the stand, noticed their intelligence, their demeanor, their interest, if any they may have in the case, their bias and prejudice, if any, and each and ever}^ fact which will enable you to determine what degree of weight and credi- bility to attach to the evidence of each. You will consider this case dispassionately, without feeling or prejudice. You must take the law as the court charges it to you, and in your jury room let no one of you advance any proposition of law inconsistent or at variance witli the cliarge I have given you. You will give to these parties, therefore, a full, fair and conscientious consideration, so that when you have arrived at a verdict, it may be said that, in so far as the fallibility of human judgment permits, these parties have had a fair and impartial trial of this important cause. ^ 1 Hickman v. Swarts, Franklin Co. Com. Pleas. Dillon, J. Sec. 2338. Consideration of the will itself. While you may consider the provisions of the will, yet you must remember that it is not your province to pass upon the justice or the fairness thereof, but its provisions may be considered in connection with all the testimony and the circumstances sur- rounding the testator for the purpose of determining whether it has such existence. You are not at liberty to make a will for the testator, but simply to decide whether tlie one he has attempted to make is sanctioned by and fulfills all the require- ments of the law.^ iPage on Wills, sees. 132, 421, 426. 2174 INSTRUCTIONS TO JUEY. Sec. 2339. What, if anything, may be inferred from will. Look first at the will. From the face of a coin you may infer the form of a die ; when you read an anonymous manuscript, you may guess the author; when you see a footmark on the sand, you may conceive the animal that made it. So, from this will you may he able to infer something of the mind whose de- sires and interests it is said to have expressed ; or you may find in it the expressions and desires of some other man than 11. S. It is not the number of witnesses, but the weight of their testi- mony that should prevail with you, and of how much weight should be given to any testimony offered you are the sole judges.^ 1 Joslyn V. Sedam, 2 W. L. B. 147. Sec. 2340. Moral depravity — As affecting mental capacity — ■ Notable charge of Longworth, J. 1. Right to make icill. To make a valid will it is not enough that the testator shall subscribe his name to it in the presence of witnesses. He must do it intelligently and voluntarily. It is a matter of experience that juries sometimes set aside a will because they do not approve of its provisions. It is the right of every man, which right can not be taken from him, to do what he wills with liis own, unless the disposition he makes vio- lates some law ; and after his death neither court nor jury have the power to make for him a disposition of his property different from the disposition which he intended to make, ui)on any theory that such intended disposition was unjust and wrong. 2. Foolish, capricious or unjust will. If, therefore, a man of sound and disposing mind chooses of his own accord to make a capricious, a foolish, or an unjust will, such will must stand, the simple question in such case being whether he was of sound and disposing mind at the time when he made it. 3. Mi^id weakened from age, excesses, disease. If his mind at that time was feeble, perverted, or inert, whether weakened by age, excesses, disease, or other causes, that its action was not such as it would have been had the mind been in a natural con- WILLS. 2175 dition and sound, so that the jury may find that such action does not express the real intent of a sound and disposing mind, then the will, which is the result and product of such action, is not the last will and testament of the testator. Everyone has obser^'ed that men in morbid conditions, where the brain is affected by disease, crazed by stimulants, or other causes, do things which at other times they would never have thought of doing, and for which they can hardly be held account- able, either in law or morally. In the eye of the law, a man's feelings, desires, and acts at such times are not considered to be the feelings, desires, and acts of the man. Again, a man sometimes performs an act intelligently, but through feebleness of memory, is ignorant of some fact which if he had known would have caused him to act very differently. For example, suppose that one desires to divide his property equally among his children, and having three children, if so imbecile in memory as to suppose he has only two, and divides the property between these two, such disposition should not be considered the will of the testator, because it clearly does not express his intentions. 4. Knowledge of property and objects of his bounty. To make a will a man must have capacity to know and understand what property he has, who would naturally receive it, and whom he selects to receive it; he must be able to hold in his mind his property, the persons to whom he gives, and those, if any, from whom he withholds ; he must be able to understand his true rela- tions to his property, and to the natural objects of his bounty. If he is not able to understand and comprehend these things, then he is incapable in law of making a will. It is a very difficult thing to enter into the mind of a man and see what is there. It is a difficult thing to determine definitely, from the testimony of others, the true character, thoughts, and feelings which have in times past been the moving-spring of action in one whose body is now turned to dust. Nevertlieless, by the light which human testimony gives, the endeavor must be made. 2176 INSTRUCTIONS TO JURY. In all cases like the one at bar, the first and not the least im- portant item of evidence bearing upon the condition of the mind of the testator is the will itself, and although, as I have said, the fact that a will is unjust, or wrong, or absurd does not of itself prove the incapacity of the testator to make a will, yet it is an item of evidence for the jury to consider as bearing upon the question, and it is for the jury to determine what weight shall be given it. 5. Moral depravity — Dissolute habits. Again, although mere moral depravity does not of itself unfit a man to make a will, yet a jury has a right to consider the fact of depravity in the testator, if satisfactorily shown, as a circumstance casting sus- picion upon his soundness of mind. The law does not declare that because a man is dissolute, passionate, unjust, and wanting the natural affection and par- ental instincts, and that he makes such a disposition of his property as he ought not to have made, these facts being found shall invalidate such disposition by will. I say the law does not declare tliat these things shall make his testament invalid, but it leaves to the jury, and to the jury alone, the right to say how much weight ought to be given to such facts, if tliey are found to be facts, in determining the condition of the testator's mind. The law very wisely provides that of these matters the jury shall be the sole judge. For whether strong or whether weak, no two human minds are exactly alike. The law does not pretend to furnish a foot-rule by which they shall be measured, but declares the few simple rules which I have given to you, find beyond these loaves the determination of the facts to be governed by those principles of reason and common sense which direet the minds of all just and honest men. We all know that there are degrees of moral depravity as various as the degrees of moral excellence and virtue, and it r^fiy bo that moral depravity may result in a perversion of the fo'^linp-s, affections, inclinations, temper, habits, and moral dis- position, without any lesion of the intellect or reasoning facul- ties; and it may be true that some human beings exist who, in WILLS. 2177 consequence of a deficiency of the moral organs, are as blind to the dictates of justice as others are deaf to melody; but whether such or a like condition of mind would amount to unsoundness, is a question of fact rather than law. Mere depravity or wickedness, not amounting to mental un- soundness would not of itself, standing alone, affect the will of the testator. It is claimed in this case that H. S. was a man morally de- praved. I charge you that if you find that H. S. did not believe that any woman was virtuous ; that all women were prostitutes ; that they were created simply for the purpose of gratifying the lusts of man ; that they were therefore able to support and main- tain themselves out of the wages of sin; and that therefore no provision ought, in any case, to be made for them, and that, acting on this belief, he gave the bulk of his property to his son and not to his daughters, and that he made this disposition of his property by reason of this belief, then you would be justified in finding that his will is void. However sound or strong the mind of a man might be in other directions, you would be justified in finding that the existence of such belief amounts to insanity or monomania, I ' wish to impress upon you, however, what I have stated before, that to justify your setting this will aside upon such a state of facts as this you must find that such facts do exist. A less degree of moral depravity, although important as an item of evidence touching the question of soundness or unsoundness of the mind of the testator, would not of itself, standing alone, render him incapable of making a will ; neither would this state of facts justify you in setting aside the will, unless you should find that they amounted to unsoundness of mind. It is claimed that H. S. had, during his lifetime, suffered from severe attacks of disease; that he had been an iritcmpcrate drinker, and a man immoral and earoloss in all his habits of life; that he was peculiar and eccentric in his dress, his spcceli, and his manner. All these facts, if you find Ihcni to ])c facts, you have the right to consider as circumstances bearing upon the 2178 INSTRUCTIONS TO JUBY. question before you. His feelings, his sayings, his doings, the whole history of his life and death, as disclosed by the evidence, are proper testimony for your consideration, and you are the sole judges as to what and how mucli effect shall be given to any and all of them, keeping in view, however, that the question to be decided by you is narrowed down to this: do the papers purporting to be the will and codicil express the true desire and intent of the deceased, or, in other words, are they the act and product of a sound mind?^ 1 Joslyn V. Sedam, 2 W. L. B. 147. Longworth, J. Sec. 2341. Undue influence — What constitutes — Another form. To constitute undue influence and restraint it must appear that there was such influence and restraint as caused the exe- cution of the will by the testator against his own desire in the matter. It must appear by a preponderance of the evidence that such undue influence and restraint was practiced with reference to the will, and must have affected or brought about the pro\'isions of the will, or some of them. Unless it has in some manner affected the making of the will, or some of its provisions, it can not invalidate it. It must destroy the free agency of the testator. It is not required that any physical force should be used, but any restraint, or threats, or influence brought to bear upon the testator, or persistent importunities which he has not the strength to resist, if exerted so as to coerce him against his desire and purpose into making his will, or any of its provisions, is undue influence within the meaning of the law. It matters not how slight or how great the influence may be, so long as it destroys the free agency of the testator. It is immaterial what arguments, influence, or persuasion were brought to bear upon the testator, provided that in making his will he carried into effect his own will and intentions, and not those of another.^ WILLS. 2179 Any degree of influence over another acquired by kindness and friendly attention can never constitute undue influence within the meaning of the law- lAs to unnatural dispositions, see Beach on Wills, sec. 113. 2Newby, J., in Graham v. Graham, Highland Co. Com. Pleas. As to undue influence, see Beach on Wills, sees. 107, et seq. What constitutes. Taphorn v. Taphorn, 12 C. C. (NS) 180 181 ''2 C D. 96, •.,,-. Sec. 2342. Undue influence — Longworth, J. The next question for your consideration arises upon the claim of the plaintiff that at the time of executing these papers the testator was acting under undue influence exercised over him by C. S. and others. A will must be the expression of the wishes and purposes of the party who undertakes to make it; his friends and family may talk with him, advise him, entreat him, and importune, him. This they may do, but if, when this is done, he intelli- gently M^eighs what they say, and having capacity, intelligently makes up his mind, determines his own purposes and declares his own intentions, it is no matter whether his own mind, when made, agrees with their advice or not. If it is his own clioice or preference, it is no matter whether it originated wdth himself or was suggested by others. If de- ceived by fraud, coerced by threats, or worried witli importunity, or influenced by the constant pressure of a dominant mind, which constrains him into the execution of such a Avill as lie would not, of his own inclination, have made, then the jury may find that undue influence has been exercised over the mind of the testator. But in such cases the test is always tliis : Is the will the expression of the intent of the tostator, or of some other per- son? Is it his will, or the will which some otlier man lias made for him? These are the two questions which you are called upon to de- cide, and the responsibility of deciding them truly and justly rests entirely upon you. There is a general conflict of testimony, 2180 INSTRUCTIONS TO JURY. and a great mass of evidence has been submitted to you. The witnesses seem to have described two different persons, the one corrupt, degraded, and depraved, possessing attributes of the brute rather than the man, and in whom all manhood, if it ever had existed, has ceased to exist ; the other a man who, although perhaps not affectionate, desired to be just, and. though perhaps not spotless in life, had no other or greater failings than such as are incident to ordinary humanity, and possessed some vir- tues not common among men. It is for you to determine all questions concerning the weight of the evidence and the credibility of the witnesses, using tho rules of law, as I have given them to you, as a lamp to guide you in disentangling the complicated obstructions which you may find in your way.^ 1 Joslyn V. Sedam, 2 W. L. B. 147. Sec. 2343. Undue influence — Persuasion to make will — Flat- tery, appeals to afiFection. It is not unlawful for a person by honest intercession and persuasion to induce a will in his favor; neither is it unlawful to induce a testator to make a will in one's favor by fair speeches and kind conduct, for this does not amount to that kind of com- pulsion, improper conduct, or undue influence which, in a legal sense, would render the will invalid. To have such an effect it must amount to a moral force and coercion, destroying free agency. That which is obtained by argument, flattery, per- suasion, and appeals to the affections, although influencing the testator's better judgment, does not necessarily vitiate the tes- tator's will, unless his free agency be thereby destroyed, not- withstanding that but for such influence the will might not have been made. The test of the unlawfulness of the influence is its effect upon the testator's free agency. It must not be the influence of affection and attachment, nor tlie mere desire to gratify the wishes of another, but the undue influence and restraint required in order to render the will invalid must be WILLS. 2181 of such a character and degree as to prevent the exercise of that discretion and judgment which are essential to a sound and disposing mind. Undue intiuenee, like incapacity, must be shown to exist at the time of making the will. To determine this you must con- sider all testimony, and look to the facts and circumstances occurring both before and after the execution of the will as reflecting, one way or the other, upon the question whether undue influence may or may not have existed, or operated upon the testator, at the time he made his will.^ 1 Newby, J., in Graham v. Graham, Highland Co. Com. Pleas. Undue in- fluence. Beach on Wills, sees. 107, et seq. Sec. 2344. Nuncupative will — Words written down not those spoken. In a suit to test the validity of a nuncupative will, it is com- petent to prove that the testamentary words reduced to writing and probated are not the M'ords spoken by the testator, and the following charge is, therefore, correct: If the evidence shows that the words actually spoken were substantially the same as the words written down by the witnesses, that would be suf- ficient ; but, on the other hand, if the evidence should show that the words written down by the witnesses, as proved and pro- bated, were not substantially the same as the words actually spoken, then the will could not stand, and their verdict should be for the plaintiff.^ 1 Belles V. Harris, 34 0. S. 38. The jurisdiction exercised by court and jury in trying contest of a will is virtually that of a court of probate, charged with the duty of finally establishing or rejecting the will. It is a proceeding inter partes Mears v. Mears, 15 O. S. 96; Converse t'. Starr, 23 O. S. 498; BoUea v. Harris, supr,%. INDEX A Abortion By physician, general charge, instruction, essential elements, intent. etc., §§ 1460-1466. elements of crime of, § 1461. testimony of husband as accomplice, § 1462. belief that uterus contained dead foetus, § 1463. presumption of innocence, § 1464. unwise to convict on uncorroborated testimony of accomplice, § 1465. reasonable doubt as to intent, reasonable probability of innocence, creates, § 1466. Accomplice — Testimony of husband as, in abortion, § 1462. Conviction on uncorroborated testimony of, § 1465. Testimony of, how to be considered, — bribery, p.l293. of, offered immunity, p. 1297. in burglary, p. 1329. Uncorroborated testimony of, § 1740 and note. different form, p. 1495. Act of God — (See CoMMox Carrier of Freight.) Instruction what constitutes, § 1617. Cold M-eather not, § 1640. Admissions — Instructions as to evidence of, p. 1296. Extra-judicial, must be corroborated, 1303. ] Adultery — (See Aliexation of Affections.) Adverse possession — What constitutes, § 1092. need not be lield under color of title, § 1693. meaning of continuous possession. § 1694. occupation must be of some well-defined limits, § 1695. 2183 2184 INDEX. Adverse possession — Continued. What constitutes — Continued. lines between owners, § 1696. abandonment, § 1607. must extend to what, § 1698. mistake in boundary line, nature of occupancv, § 1G99. declarations as to ownership, § 1699as Agency — \\hat constitutes agent, § 1467. Special or general agent, § 1468. I'rincipal estopjied to deny, when, § 1469. No ratification witliout knowledge of facts, § 1470. Ratification of, with knowledge, can not disavow part. § 1471. Kiglit to recover wliere double, known to principal, § 1472. Agent — (See AcBiNCT.) Aider and abettor — (See Accomplice.) Must be conspiracy to overt act, § 1473. One present without conspiracy, § 1474. In homicide — charge, § 1475. Law as to, in bribery case, p. 1274. Detectives engaged in entrapment, not regarded as, p. 1277. Testimony of, how considered, p. 1293. Alibi — Defined, proof, § 1476. character of proof, § 1470. in burglary, p. 1330. Alienation of affections — Consortium, right of, § 1478. Malice as an ingredient of the wrong, ? 1470. Marital right gives exclusive right to intercourse, § 14t>v. Act or acts of defendant must be malicious, § 1481. Conduct of husband, § 1482. Acts of parents, — rights and liabilities, § 1483. By adulterous relations with wife — marriage — adultery — uamages,, § 1484. Limitation of action for — husband voluntarily bestowing affections — relationship between husband and wife — malice — aban- donment of husband — damages. § 1485. Claim of mistreatment of wife by husband, § 1486. INDEX. 2185 Alienation of affections — Continued. Connivance of or encouragement by, or misconduct of plaintifi as bar to recovery, § 1487. Preponderance of evidence only, essential, § 1488. Burden and character of proof of adultery, § 1489. Measure of damages, § 1490. Alig-hting — From strei'; car. (See Street Railways.) Animal — Owner of, not liable for injury if rightly where it may be, unless vicious, § 1491. rule otherwise where, breaks close of another, § 1491. Liability of owner of, trespassing on lands of another, § 1492. Ferocious dog at large- — knowledge of its character — what constitutes keeping of, § 1493. Scienter, proof of, § 1494. Defense that dog fastened on premises, § 1495. Liability of trespasser leaving gateway so horses escape into another field, where injury done in ighting with strange horses, 1496. disposition of animal, § 1496, par. 3. fighting proximate cause of wrongful trespass, § 1496, par. i. Arrest — What constitutes, § 1758. Without warrant, §§ 1759, 1760, 1762. Assault and battery — (See Statutes of Limitation, HoAriciDE.) Defined, § 1497, § 1499, par. 3, § 1849. By teacher on pupil, § 1498. right of teacher to correct, § 1498. By railroad employe or flagman in flagging crossings, § 1499. Kcgligently committed, § 1499, par. 6. 'WTien committed in self-defense, § 1500. force used in repelling assault not nicely measured, § 1501. Defense of self and child, force used, S 1502. liow far one may go in protection of self or child, § 1503. One provoking assault may recover if he afterwards withdrew. 5 1504. Damages recoverable in civil action, § 1505. Effect of conviction in criminal prosecution on civil damages, § 1506. Assault with intent to kill — Complete charge in, § 1507. (See additional headings in text.) Includes lesser grades, § 1508. Assault — battery — intent, § 1509. 2186 INDEX Assault with intent to kill — Continued. WLe started the affray, § 1507, par. h. The law as to, § 1507, par. i. Malice, § 1507, par. Intent to kill, § 1507, par. m. May find defendant guilty of assault, § 1507, par. 6. Assumption of risk — General scope and extent of doctrine, § 2014. of nefj^ligence of fellow-servant, § 2015. negligence of servant incompetent at time of entering service, §2017. negligence of one occupying relation of principal, § 2018. of insufficient force when, § 2019. knowledge of dangerous methods is, § 2029. knowledge of work, and, § 2030. Attorneys — Breach of contract of employment, contingent fee in collection of account, § 1510. Presumption from employment of agreement to pay reasonable fee, §1511. Action to recover fees, governed as other employments, § 1512. Quantum meruit when no special contract, § 1513. Facts to be considered in determining value of services, § 1514. expert opinion as to value of services, § 1515. Automobile — Relation of owner and chauffeur. § 151C. Liability of owner hiring licensed chauffeur, § 1517. Master loaning servant to another liable, § 1518. Garage owner hiring, with driver, hirer exercising no control except to direct route, § 1519. Duty of one operating sight-seeing, § 1520. Liability of owner, for acts of driver who takes, by express or implied authority for taxi service, § 1521. ownership not evidence of agency, § 1521, par. 2. course of emploj-ment, § 1521, pars. 3, 4, pp. 1174-1175. Ownership and operation of, by servant employed for purpose prima facie liability, § 1522. under o^eneral denial plaintiff must show servant in service of master, § 1522. Injury while crossing street from collision with, complete charge, § 1523. negligence of driver and pedestrian, § 1523, par. 4. I INDEX. 2187 Automobile — Continued. Injury while crossing street, etc. — Continued. relative rights and duties of driver and pedestrian, equality of right, § 1523, par. 5, § 1539, § 1533, pp. 1179-1180, 1184n. duty of driver of, to negligent person, § 1523, par. 7. proximate cause, concurrent negligence, § 1523, pars. 8, 9. driver to keep vigilant watch ahead, p. 1180. Driver to anticipate meeting pedestrians at crossing, § 1524. to give signal, and adopt other precautions, § 1525. duty as to speed, the statute, § 1526. violation of, prima facie negligence, § 1527, Duty of driver, meeting others in street, reasonable lookout, control of, § 1528. to keep lookout, reasonable control of, assumption pedestrian will not suddenly turn back, § 1529. Pedestrian going unexpectedly in front of, § 1530. Warning given pedestrian causing bewilderment, § 1530. Excessive rate of speed approaching crossing, § 1532. no signal, pedestrian in sudden danger, choice between hazards, § 1532. Lawful means conveyance, equality between pedestrian and, §§ 1533, 1534. Ordinance as to passing vehicles and carrying lights, § 1535. Driver of, may assume pedestrian will use due care at crossing, § 1536. Driver of, and of other vehicle both negligent — concurrent negligence and proximate cause, § 1537. Driver of, as agent of owner, § 1538. Driver of, at railroad grade crossing, § 1540. Injury by collision between two, complete charge — approaching street crossing, law of road, speed, etc., § 1542. defendant counterclaiming for tort in same collision, § 1542. Tliough not dangerous instrumentality, may become so, if recklessly driven, § 1542, par. 10. Injury to guest of hirer from owner furnishing ciiaufTeur, § 1543. contract of hiring for specified trip, § 1543. whether driver engaged in line of service, § 1543. plaintiff must show chauffeur to have been within business of owner, p. 1215, par. 3. intoxication as affecting contributory negligence, p. 1217, par. 4. evidence of declarations of intoxication as cause of injury as part of res ffcstae, p. 1219. par. 5. Liability of garage keeper for safety of, bailed with him, § 1545. proprietor to exercise supervision over employees to gunrd against wrongful taking out stored, § 1546. liability for allowing customer's auto to be taken out without authority, 8 1547. Duty of driver of, at railroad crossing, § 2207. when vision obscured, § 2207. 2188 INDEX. Automobile — C ontinued. Duty of driver of, etc. — Continued. may rely on gateman giving notice, § 2208. when placed in sudden peril, § 2200. imputing negligence of driver to occupant, § 2209. B Baggage — Duty of common carrier as to delivery of, § 1627. What constitutes, § 1640. liability, as insurer, § 1G41. Bailment — Loss of goods by negligence of storage company by natural decay or in negligent maintenance of temperature, § 1544. Liability of garage keeper for safety of automobile, § 1545. proprietor of garage to e.xerci.se supervision over employees to guard against wrongful taking out of stored auto. § 1546. liability for allowing customer's auto to be taken out without authority, § 1547. Bank — Deposits and checks — Cashier authorized to receive deposits, § 1548. authority of jjresident to do same by custom or usage, § 1548. Measure of care recpiired of directors of, as to acts of ofTicers, § 1540. Estoppel to deny authority of officers, § 1550. Relation of directors of, to i)uhlic, liability for defaulting officers, § 1551. Liability of drawer of check, § 1552. nature of check, rights and liabilities of parties thereto, § 1553. Bastardy — Complete charge. § 1554. Reputation of prosecutrix for truth, § 1555. of defendant for virtue and chastity, § 1556. Bigamy — Defined, § 1557. Remarriage of wife before seven years absence of husband, without divorce, § 1558. Common-law marriage not basis for prosecution for, § 1559. Domicile of divorced parties, § 1560. Bill of lading — (See Common Cakbier or Freight.) INDEX. 2189 Boarding — Street cars. (See Street Railways.) Breach of promise to marry — Contract of marriage, § 1576, § 1577, par. 1. Complete charge in, § 1577. eflFect of physical condition, p. 1254. request to perform essential, p. 1254. deceit as to age, p. 1255. affliction with disease, p. 1255. A^hat amounts to breach, essentials as to time, § 1578. Promise in consideration of sexual intercourse, § 1579. Acts of preparation, § 1580. Measure of damages, § 1580a.. Bribery — Of state official, complete charge in, § 1581. (For subjei-ta embraced see text.) law as to, p. 1270. to solicit bribe, p. 1270. bribe need not be only consideration to influence, p. 1272. the intent, p. 1273. jury sole judges of meaning of language, p. 1273. law as to aider and abettor, p. 1274. conspiracy to obtain money, p. 1274. entrapment, ])p. 1275, 1276. detectives not aiders and abettors, j>. 1277. Solicitation of bribe, § 1582. statute and essentials of crime, p. 1279. what constitutes, p. 1280. intent and motive, other alleged solicitations, p. 1282. meaning of language, p. 1282. declarations received with caution, p. 1283. admonitions to jury, p. 1283. Reputation of accusing witnesses, § 1583. Of city official, complete charge in, S 1584. flight, p. 1293. accomplices, p. 1293. admissions, p. 1296. testimony of accomplice offered inmuniify, p. 1297. law as to, p. 1298. corpus delicti to be jirovod, ]). 1300. Broker — Real estate commission of, action for, § 1585. the contract, what plaintifT must establish, p. 1307. 2190 INDEX. Broker — Continued. Real estate commission of, etc. — Continued. when purchaser buys on terms other than those communicated by broker, p. 1307. entitled to commission if owner declines to sell, p. 1308. when owner enters into enforceable contract, p. 1308. when, a director of corporation purchasing, § 1588. must show he accomplished all required of him, that his efforts were efllcient cause of sale, § 1589. if not, and owner makes sale, no recovery may be had. § 1589. entitled to, when purchaser produced though owner conducts negotiations and sells on different terms, § 1590. right of, to commission when several employed, § 1591. purchaser produced must be client of agent first conducting nego- tiations, § 1591. Building contract — Substantial departure from, without consent, — extras, § 1592. Failure to do work in workmanlike manner according to contract, § 1593. Substantial performance, except slight deviations, § 1594. Deduction for unfinislied parts, § 1595. Owner estopped by conduct in acquiescence in work not done accord- ing to contract, § 1596. acts showing knowledge of departure from, § 1597. settlement without fraud or mistake, § 1598. As to extras. § 1599. Substantial performance, § 1600. Extras, whether contract express or implied, or work voluntarily done, § 1601. Burden of proof — Of consideration when attack made, § 1561. Of insanity, § 1830. Of self-defense, §§ 1507, 1S71. p. 1040. Burglary — And larceny, force necessary in, § 1602. Degree of force, § 1603. Of a chicken or henhouse, § 1604. Of dwelling-house, § 1605 Maliciously breaking and entering, § 1606. Breaking and entering, § 1607. Of inhabited dwelling-house, § 1608. Must be in night time, § 1609. Intent to steal, § 1610. Intent to steal from railroad car, § 1611. INDEX. 2191 Burglary — Continued. Of railroad car, § 1612. entry into car, § 1613. Complete instructions in, of storehouse, § 1614. accomplice, testimony of, § 1614. possession of stolen property, p. 1331. the statute, p. 1332. night season, p. 1332. maliciously breaking, p. 1332. c Carrier of passengers — (See Railroads as Caebiers of Passengebs, Street Railways.) Change of grade — Injury from, § 2065. Within authority, and without negligence, § 2066. Improvements made in reference to established grade, § 2067. Statute as to, requirements of owner as to claims, § 2068. Requirements as to files and surveys, reliance upon by abutting owner, failure to file claim, etc., § 2060. Plans *nd profiles, owner may rely upon, § 2070. Adopting county road as street, §2071. Improvement made before grade established is at one's peril, § 2071a. Rule as to unreasonable grade, § 2072. Whether or not premises abutting upon improvements has affected claim for damages, § 2073. Reasonableness of grade, what to be considered, §2074. Recovery of interest on damage, § 2075. Retaining wall, when necessary, § 2076. Damages, §§ 2077, 2080. After improvement, § 2078. Whether improvement made in conformity to established grade, §2079. Damages, market value, opinion evidence, § 2081. enhancement of value, § 2082. benefits, § 2083. Check — Rights and liabilities of parties, § 1553. Children — (Sec Street Railways.) Contributory negligence of, §2113. consent of, effect, §2114. 2192 INDEX. Circumstantial evidence — In bribery, p. 1301. in burglary, p. 1330. in embezzlement, p. 1441. criminal cases, § 1734. another form, §§ 1735, 1736. Cocaine — Use of as effecting mental responsibility, p. 1426. Commission — Real estate, see Bbokeb. Common carrier of freight — Defined, § 1015. Common-law rule of liability, § 1616. Act of (iod — inevitable accident, § 1617. Liability of express company for loss of horse in shipping, § 1618. liability of, in absence of contract, p. 1336. prima facie case by delivery, p. 1336. death of horse from natural cause is act of God, p. 1337. duty of company when horse falls in stall, p. 1337. liability if horse improperly treated, p. 1337. live-stock contract, fixing rights and liabilities, p. 1338. to be construed by law of another state, p. 1341. Limiting liability by special contract, § 1619. Limiting common-law liability, burden on carrier, § 1620. Not insurer as to time, delay by unavoidable accident, § 1621. As to delivery of goods, § 1G22. Presumption of loss by non-delivery, § 1623. Duty of exi)ress comi)any as to delivery of goods. § 1624. Rule as to limitation of liability, § 1625. by contract for loss on connecting lines, § 1626. duty as to baggage, delivery, § 1627. Liability in absence of special contract, § 1628. Contract for transportation of vegetables, § 1629. Delay in delivery of goods, exemption of liability in bill of lading, S 16.30. Bill of lading, eflFect of between carrier and shipper, conditions in waiver of, § 1631. Duty of railroad company to furnish cars, § 16.32. duty to place cars in suitable places for unloading. § 1633. duty to provide side tracks, § 1634. reasonable rules concerning car service, § 1635. INDEX. 2193 Common carrier of freight — Continued. Duty of railroad company — Continued. reasonable of rules how determined, § 1636. recovery for car service, effect of rules regulating charges beyond period for unloading, § 1637. Bound to use ordinary care in shipment of live stock when there is delay, § 1638. Cold weather, not act of God, § 1639. Baggage, what constitutes, § 1640. liability of, that of insurer, § 1641. Compromise and release — Of cause without knowledge of counsel induced by fraud, burden of proof, § 1642. Claim of void release for personal injury may be set up in reply, § 1643. Concurrent negligence — Of pedestrian and auto driver, p. 1183. Of driver of auto and other vehicle, § 1537. And contributory negligence as applied to autos, § 1542, par. 13. Doctrine of, S 2121. When negligence of plaintiff not continuing, but that of defendant is continuing and proximate, § 2122. Definition of, pp. 2126, 2129. Defined and explained, p. 1828. Proximate cause differentiated from, p. 1828. Consideration — Burden of proof of, § 1561. Consortium — Right of, § 1478. Conspiracy — In bribery case, between defendants and others to obtain money, p. 1274. claims of, p. 1.302. the law as to, pp. 1303, 1492. Contract — Meeting of minds, § 1644. By ratification wlien no mooting of minds in beginning, § 1045. Consideration, § 1646. Express or implied, § 1647. Made under duress or compulsion, § 1648. Consideration — exclusive right to patented invention, § 1649. 2194 INDEX. Contract — Continued, Words applied to trade — "new dress" for paper, § 1650. Implied, to be found by jury, § 1651. Parol evidence to vary written instrument, § 1652. Latent ambiguity in, § 1653. in oral, § 1654. Defense of illegality, § 1655. Meaning of, to construct and finish a thing of the "finest quality," for the jury when, § 1655. Breach of covenant of lease, failure to repair, maintain and surrender premises, reasonable use, reasonable wear, § 1657. Contract for personal services — For support of parent, § 1G58. To perform services by one taken into family when a child, § 1659. Services of child for parent, capacity of parent to make, child member of family, § 1660. Made by correspondence, § 1661. Express or implied, proof of, § 1662. When implied, § 1663. Burden when relation of brother, sister or parent or child claiming contract to prove, and rebut presumption of gratuity, § 1664. Service rendered by grandchild to grandparent. § 1665. request to perform implied from circumstances, § 1665. circumstances negativing promise, gratuitous services, parent and child, p. 1383. Between employee and corporation, § 1666. Action by wife against executor of deceased father-in-lavr, ^ 1667. parent residing with child services presumed gratuitous, § 1667. husband entitled to personal service of wife, p. 1386. contract must be shown to warrant recovery, p. 1387. whether services gratuitous, p. 1387. Contributory negligence — Of patient, in claiiii of malpractice, § 1098. Burden of proving, on defendant unless plaintifTs teatiraony raises inference. § 2034. Considered with reference to directions of master, § 20,35. Of servant of railway when slight as compared with that of master, present statutory rule, § 2036. Defined and explained in connection with concurrent negligence, pp. 1827, 1828. Precluding recovery must co-operate in causing injury, §2108. No recovery when there is, § 2109. must be proximate cause, §2110. INDEX. 2195 Contributory negligence — Continued. When plaintiff must show himself without fault, or rebut inference of his own negligence, §2111. Burden of proving, §2112. As applicable to children, § 2113. Intoxication as aflFecting, §2115. Of husband performing duties as such not agent of wife, § 2116. Of infant employe, §2119. County — Liability of, for injury by mob, § 2133, Court and jury — (See Province of Court and JtrsT.) Credibility — Of witnesses, a pertinent charge, p. 2043. Intoxication as affecting, of witnesses, § 1543. A full instruction as to, of witnesses, bribery case, pp. 1267, 1291. Short form in burglary, p. 1329. Of witnesses, § 1730. jury to consider physical conditions, possibilities or impossibilities, § 1732. jury not at liberty to indulge in capricious disbelief of testimony, § 1733. Crossing — (See Railroad Crossing.) Collision between street car and steam railway engine at, of track of street railway, § 2137. speed, p. 1928. whistle, p. 1928. gateman, p. 1928. D Damages — Measure of, in personal injury, § 1955. medical attendance, § 1668. briefer form, § 1669. for injury to minor, § 1670. duty of injured to care for himself, employment of physician as affecting, § 1671. by husband for injury to wife, § 1672. where special defense on account of physical condition of plaint iff, § 1673. 2196 INDEX. Damages — Continued. Measure of. etc. — Continued. amount of compensation, § 1673a. proof of wealtli or financial condition in cases involving malice, § 1955. Danger — Rule of law as to obvious, p. 1834. Warning of, by fellow-servant. § 2027. Knowledge of, unknown to master, but known to servant, § 2028. Duty of master to give warning of, § 2039. Dangerous premises — Injury to person walking along sidewalk falling into hole in front of window, § 1674. duty of traveler on sidewalk, p. 1397. owner bound to keep premises safe for persons going on them, p. 1397. liable only if hole dangerous, p. 1367. when owner to erect barrier, p. 1398. Iiroximate cause, p. 1399. Deadly weapon — (See Homicide.) Death by wrongful act — (See Sta'h TK ok Limitations.) Action for dcatli by homicide, § 167S. what is excusable homicide, § 1676. right of self-defense. § 1677. By administrator of wife, killed at steam railroad crossing while riding with husband who is driving team, § 1678. Administrator may recover if deceased not guilty of negligence, p. 1406. Contributory negligence of beneficiaries, p. 1408. Damages, pp. 1408-1410. Measure of damages for death of husband, wife and children as bene- ficiaries, p. 1410. another form, damages for deatli of husband. § 1080. for death of young man, § 1681. intelligent discretion to be used in assessment of damages, § 1682. damages resulting to Inisbaiid and children for death of wife, § 1683. damages for death of child. § 1684. measure of damages — earning capacity, § 1685. Declarations — Received with caution, — bribery, p. 1283. How considered, §§ 1727, 1728. INDEX. 2197 Deeds — Execution of, under duress, § 1686. Capacity to make, declarations of grantor, § 1687. Covenant against encumbrances, what constitutes breach, damages, § 1688. Mental capacity of grantor, § 1689. Defense — (See Homicide.) Self, in assault. (See Assault and Battebt.) Right of child, § 1502. Derailment — Of train, causing death, § 2038. Dictagraph — As evidence, p. 1268. Directors — Measure of care required of, of banks, § 1549. Estoppel to deny authority of, § 1550. Relation of to public, liability for defaulting officers, § 1551. Fraud in declaration of dividend, § 1805. Dividend — Fraudulent declaration of, § 1805. liability of directors, pp. 1566, 1568. Drainage — (See Eminent Domain.) Druggist — Degree of skill required, § 1690. Drunkenness — Evidence of, in criminal case, considered for what purpose, § 1748. as affecting contributory negligence of person iiijurwl in auto- mobile, p. 1217, par. 4. evidence of declarations as to, part of res gcstai, p. lil!>, par. .">. Dynamite — Having possession of, for I'nlawful use, iinlawfully depositing same, § 1691. the statute, p. 1422. the charge and elements of crime, j). 1422. malice and intent, p. 1425. alibi, p. 1425. defendant under influence of cocaine, p. 1420. 2198 INDEX. E Embezzlement — Venue where laid, where intention to commit formed, § 1700. By treasurer of board of education, § 1701. Using funds intending to repay, § 1702. By public officer elected or appointed, § 1703. the statute, p. 1438. a fraudulent purpose, p. 1438 official capacity, p. 1438. agents of public officer, p. 1439. receipt of money by virtue of office,, p. 1440. circumstantial evidence, p. 1441. reputation of defendant, p. 1442. By agent of insurance company, § 1704. right of agent to mmissions, p. 1443. intent, p. 1444. fliglit and change of name, p. 1445. venue, p. 1446. Eminent domain — Right of way for railway purposes, constitutional provisions, § 1705. Rules for assessing compensation, § 1706. Allowance of benefit, p. 1449 note. Opinions of witnesses as to value of property, § 1707. Expert testimony, § 1708. Assessment of compensation, rules concerning, market value, § 1709. Right of public to improve and use public highway, construction of railroad in highway a new use, § 1710. Appropriation for telegraph line, § 1711. Drainage law, object of, § 1712. What use will justify taking private property for drainage, p. 14.57. benefits to private individuals for cultivation not sufficient, § 1714. drainage proceedings, burden as to questions of use, § 1715. number of petitioners, § 1716. determination of line of construction, § 1717. compensation for lands taken, § 1718. view of route by jury, § 1719. Entrapment — Into crime, — bribery — status of participants, p. 127i>. defendant may be guilty, though tiiere be, p. 1276. immunity of detectives, pp. 1277, 1278. Estoppel — 'lO deny agency, § 1469. Defined, § 1720. INDEX. 2199 Estoppel— Continued. Conduct must cause prejudice or injury, § 1721. Intent to mislead not essential, § 1722. Statement must be acted upon, § 1723. Evidence — And testimony distinguished, § 1542, par. 3, § 1726. Negative, p. 1291. General instruction as to, § 1724. Preponderance and weight of the, § 1725. no degree of, p. 1468h. weight may be shown by greater or less number of witnesses as jury view it, credibility to be first decided, § 1726. Declarations, statements or admissions, how considered, § 1727. declarations against interest in criminal case, § 1728. Inference drawn from conduct of parties and omission to produce evidence, § 1729. Credibility, § 1730. Circumstantial, in criminal cases, § 1734. another form, §§ 1735, 1736, p. 1496. Negative and affirmative, § 1737. Weight given medical expert, as to personal injury, § 1738. Medical, as to human blood, § 1739. Uncorroborated, of accomplice, § 1740 and note, p. 1495. Of previous good character in criminal case, § 1741. short charge to in note, § 1741, p. 1483. Of conduct importing guilt, § 1742. As to recognition of accused, § 1743. Of flight of accused, § 1744. Consideration of unanswered questions, § 1745. Conflict in, § 1746. Reasonable doubt, § 1747. Of drunkenness in criminal case, for what purpose considered, § 1748. Degree of, in claiming fraud obtaining insurance, p. 1545. Failure of party to offer, or to make explanation, naturally expected of him, p. 1557. Failure to call witness, p. 1557. Jury to reason from probabilities, p. 1557. Failure to recollect important facts, p. 1557. Excavations — In streets, negligence in making, §2085. (See Stkkets.) Extras — (See Building Contracts.) 2200 INDEX. Failure — To call witness, p. 1557. False claims — Makinj,' out and presenting, to public officers, §§ 1749-1752. under statute, § 1749. legal knowledge of fact, § 17.50. intent, proof of, § 1751. presented by state official, § 1752. conspiracy, p. 1492. proof of prior acts, p. 1494. uncorroborated testimony of accomplice, p. 1495. False imprisonment — Defined, S§ 1753, 1754. means of accomplisbing detention or restraint other than by formal arrest, § 1754. different form of definition, § 1755. detention wliile under investigation at police station, § 1755. Trespass to jierson, elements, definition, § 1750. Burden on plaintiff to prove unlawful restraint. § 1757. Arrest and imprisonment, what constitutes, § 1758. arrest by officer without warrant, § 1759. distinction between felonies and misdemeanors, § 1760 person arrested without warrant can not be held longer than necessary to obtain warrant, § 1761. of witness without warrant, § 1762. Liability of several arresting officers, § 1763. Probable cause, § 1764. right of officers of police department to make investigation, § 1765. responsibility of chief of police if person brought in for investi- gation withojit formal arrest is detained by mistake, § 1766. Damages, § 1767. Arrest and detentit of money during cover- ture, p. 2044. entitled to increase of her stock though raised on liusl)and's farm, p. 2046. estopped by conduct from claiming ownership when, ji. 2047. by fraudulent purjtose and conduct, p. 2048. creditor must have knowledge and rely on apparent possession and ownership by husband, j). 204H. wife must diligently assert her rights, p. 2048. charged with knowledge of law and remedial rights, ji. 2049. 2206 INDEX. I Imminent peril Pedestrian in, by auto, choice between hazards, § 1532. Immunity — To accomplice, p. 1297. Impeachment — Of witness, instructions as to, p. 1296, § 1731. what constitutes reputation, § 1731. Imputed negligence — Doctrine of, §2117. Of parent to child, § 2118. Of driver of automobile to occupant injured at railroad crossing, § 2210. Insanity — A comprehensive instruction, § 1881. Defined, § 1882. As a defense, § 1883. Burden of proving, § 1884. Use of cocaine, p. 1426. Instructions to jury — Concerning the claims of both parties, § 2088. Insurance, fire — Burden to prove loss, or waiver of provisions, §§ 1885, 1890. Waiver to proofs of loss, § 1880. Burden of proving authority of agent, § 188G. Conditions as to time of proof of loss, § 1887. Notice and proof of loss, § 1887. Waiver of proofs inferred from acts of company, § 1888. mere silence, not sending agents to investigate, nor attempt to compromise not waiver, § 1888. Proof of loss, when i)olicy destroyed duty of company to furnish copy or information, S 1880. failing so to do may estop company, § 1889. Partnership property, dissolution of partnership, representation as to ownership of property, S 1891. Vacancy of ])roperty, breach of condition, § 1892. When building is vacant or unoccupied, § 1893. INDEX. 2207 Insurance, fire — Continued. Waiver of forfeiture because of vacancy, § 1894. Total or partial loss, § 1895. Compromise of loss obtained under duress, § 1896. Evidence as to value of property as reflecting on charge of destroying property, § 1897. Cancellation of policy, § 1898. Rescission, § 1899. Defense of false representation as to value of property, § 1900. when fraudulent concealment, § 1901. false representation as to other insurance, § 1902. return of premium, § 1903. Fraudulent proofs of loss, § 1904. Ownership of property, § 1905. Defense as to provision requiring production of books for examination, § 1906. that large quantities of oil and petroleum stored, § 1907. that fire caused by willful act, § 1908. Seaworthiness of steamboat, negligence of owner's agent, § 1909. Insurance, accident, life — Proof of claim, § 1910. What necessary to recovery for death upon, § 1911. Consideration, § 1912. Application for, statements how treated, § 1913. Fraudulent representations or statements in obtaining, see F&axtd. Misrepresentations by insured, § 1914. what constitutes waiver of, § 1915. concealment of material fact, § 1916. Intoxication — (See Drunkenness.) As affecting contributory negligence, §2115, p. 1217, par. 4. Intoxicating liquor — Action by wife against person selling or furnishing, to intoxicated person, § 1917. evidence of sales after suit, § 1918. who is keeper of place, § 1919. defendant must know habits, notice, damages, § 1920. Belling to habitual drunkard, § 1921. Intoxication defined, § 1922. Habitual drunkard defined, § 1923. Sale within two miles of agricultural fair, §§ 1924, 1926. What constitutes sale, §§ 1925, 1926. What is, § 1927. What is agricultural fair, § 1928. Sales by agent, § 1929. 2208 INDEX. J Jurors — Duty of, to confer with each other, pp. 1266, 1290. same in homicide, § 1835 and note. L Landlord and tenant — Duty of landlord to repair walks remaining under his control, § 1930. defects known to plaintiff. § 1!).'}1. WTiether premisfs rendered unfit for occupancy on account of fire so rent not collectible, § 1932. Larceny — Defined, § 1933. Grand, essential allegations to he proved, § 1034, What constitutes taking and carrying away, S 1935. Return of jiroperty, § 1936. What constitutes, where owner voluntarily parts with possession, § 1937. Grand, by destruction of property, intent, § 1938. Of lost money, wliat essential to constitute, § 1939. Value of property must be j)roved. § 1940. Of money found by undertaker on dead body, S 1941. to steal, defined, pp. 1715, 1717. anything of value, p.l715. ownership of money found on drowned person, p. 1715. of defendant took money feloniously but a short time, p. 1717. Short charge in, § 1942. Last chance — Doctrine of, § 2120. Lease — Breach of covenant of. failure to repair, maintain and surrender prem- ises, reasonable use, reasonable wear, § 1657. Libel and slander — Libel per se defined, § 1943. Libel defined, §§ 1944, 1945. Constitutional limitation of liberty of speech, scope of, §§ 1946, 1947. reasonable criticism by newspaper, § 1948. Jury to decide whether tendency and effect is libelous, § 1949. Publication construed as libelous, § 1950. INDEX. 2209 Libel and slander — Continued. Jury to find whether article published of plaintifiF, § 1951. What is publication, who are publishers, § 1952. Truth as a defense, to be as broad as cliarge, § 1953. Innuendo, meaning ascribed tlit-rcby for jury, § 1954. Proof of financial condition of defendants, § 1955. Good faith in making publication to rebut malice, § 1956. Malice in law, and in fact, § 1957. Damages, compensatory and punitive, § 1958. Publishing information received from others, § 1959. Publication made to whom, § 1960. Slander, defamatory words must be spoken to some person. § 1961. when words impute crime, § 19G2. Libel, charge altering certificate, meaning for jury, § 196.'?. Privileged communications made to examiner school board, § 1964. Libel, report of judicial proceeding, privilege, § 1965. publication report of examining committee county treasurer, § 1966. comments upon report with good motives, § 1967. statements made to officer in discovering crime, § 1968. Construction of words and understanding of meaning by hearers, § 1969. Effect of adding excusable words, §1970. Meaning of words for jury, §§ 1971, 1972. Kinds of malice in slander, § 1973. Damages, kinds of, § 1974. in libel per se, when evidence rebuts malice, § 1975. counsel fees as part of, § 1976. extent to which, published as affecting, g 1977. What constitutes libel to one in his business, § 1978. measure of damages to one in his business, § 1979. character and extent of business and business ro])utation, § 1980. absence of malice, mitigating circumstances, acting fairly on reliable information, § 1981. Measure of damages, agreement to accept retraction of publication, § 1982. Slander of candidate for office, § 1983. Libel against business of bricklayer and contractor. § 1964. same, measure of damages, g 1985. damages to be awarded in general, § 1986. Licensee — Duty not to willfully or negligently injure, after di.scovcry of peril, p. 2020. on discovery duty to observe ordinary care, p. 2021. must be something in appearance to indicate the lie![)les8ncss or danger, p. 2023. 2210 INDEX. Live stock — Shipment of, see Common Cabbieb of Fbeight. M Malice — In assault with intent to kill, § 1507, par. k. In homicide, definition, §§ 1842, 1863, 1864, 1867. character of weapon used, § 1860. None in manslaughter, § 1861. In alienation of aflfections, § 1479. Malicious prosecution — Essential facts to be found, burden of proof, § 1987. Probable cause, §§ 1988, 1944, p. 1771. malice inferred from want of, § 1989, Advice of counsel, §§ 1990, 1995, p. 1773. Discharge by magistrate, prima facie evidence of want of probable cause, § 1991. Prosecution must have terminated, §§ 1992, 1995. Damages, compensatory, and exemplary, § 1993. Complete charge in, § 1995. malice, p. 1773. Malpractice — (See Statutes of Limitation.) Care required of physician. § 1996. reasonable and ordinary care required. § 1997. contributory negligence of patient, § 1998. Liability of surgeon performing operation without consent, § 1999. consent presumed when, pp. 1777, 1778. express consent after physical examination, p. 1778. authority to do what reasonably necessary to save life, p. 1778. patient chargeable with knowledge from acts of preparation for operation, p. 1779. care required after operation, p. 1779. Liability of physician for injuries caused by X-ray, § 2000. Manslaughter — (See IToMTciDE. ) Defined, §§ 1845, 1869. provocation, §§ 1840. 1847. infidelity of wife, § 1848. all surrounding circumstances to be considered, § 1862. INDEX. 2'Jll Manslaughter — Continued. By negligent driving of automobile, complete charge, § 2001. opinion as to speed, p. 1783. law of, '•unlawfully kills," meaning, p. 1783. unlawful act, one prohibited by law, p. 1784. statute as to speed, p. 1785. . opinion evidence concerning, p. 1786. violation of statute as proximate cause, p. 1787. may find guilty of assault and battery, p. 1788. By one attempting to arrest another for felony, § 2002. manslaughter defined, p. 1789. may make arrest for murder on reasonable cause without war- rant, p. 1790. when right to kill in arresting for felony justified, p. 1791. claim of self-defense, p. 1792. Negligent driving of automobile as forbidden by statute constitutes, § 2003. Contributory negligence of deceased no defense in, caused by neglect of driver of auto, § 2004. Marriage — (See also Breach of Promise.) What constitutes, § 2005. Common-law marriage, § 2006. note on, pp. 1797-1799. Legitimacy of children, § 2007. In another state forbidden by laws of such state followed by cohabita- tion, § 2008. Master and servant — General duty of master, § 2009. selection of servants, § 2010. of railroad to furnish adequate number, §2011. failure so to do as proximate cause, § 2012. knowledge of inadequate force by servant, § 2013. servant becoming incompetent subsequent to selection, § 2016. Assumption of risks, §§2014-2019. (See Assumption of Risk.) Fellow-servants, §2020. (See Fellow-servants.) Respondeat superior, §2022. (See Respondeat Superior.) Warning of danger by fellow-servant, § 2027. Knowledge of danger unknown to master, and known to servant, § 2028. Duty of railroad conductor, §2031. Knowledge of defect, burden to rebut. § 20.32. Duty of railroad as to inspection, §2033. Servant injured working on derrick car— negligonco by running car into same without disconnecting machinery, § 2037. law of another state governing, p. 1824. 2I^lli INDEX. Master and servant — Continued. Servant injured, etc. — Continued. duty to provide safe place to work, p. 1826. contributory negligence, p. 1827. Death of engineer from derailment of train, § 2038. Duty of master to give warning of danger, § 2039. Injury caused by defective guy supporting derrick, § 2040. defect, defective, meaning, p. 1837. knowledge, promise to repair, pp. 1837, 1838. appliance of simple construction, p. 1838. disobedience of instructions, p. 1839. Measure of damages, § 2043. Injury to child of employee, § 2044. Relation of servant and agency inferred from facts and circumstances, § 2046. Liability of father for negligence of minor son driving auto, p. 1206. auto not dangerous instrumentality, may become so, legislative regulations, p. 1207. implied authority by father to son to use and drive auto, p. 1207. Mental capEicity — {See W1LI..S.) To make deed, § 1689. From use of cocaine, p. 1426. Mercantile agency — Liability for false reports, § 1791a. Mob — Liability of county for injury by, § 2047. Civil liability of county for injury by, §2133. Municipal corporation — (See Change of Grade. Sidewalk, Streets.) Reasonable care required in construction, maintenance and supervision of sewer system, § 2064. N Negative testimony — Instruction as to. p. 1291. And affirmative, § 1737. Negligence — General form of opening. §§2087. 2089. Explanatory instruction concerning duty of jury, § 2088. No presumption of, by railroad company when, § 2089. INDEX. 2213 Negligence — Continued. Defined, §§ 2090, 2091, 2092, p. 2111. Exists only when duty is owing, § 2093. Essential elements to constitute, § 2093. Imports want of attention, § 2094. Active and passive, § 2095. No element of purpose or moral turpitude. § 2097. Intent not an element, § 2098. When, is wanton, § 2099. General duty of everybody becomes a particular duty to single person when, §2100. Actions for, distinguished from nuisance, § 2100. Cause not negligent act alone, but injury proximately from breach of duty, §2101. Burden of proving, § 2102. No presumption of, against either party, § 2105. Imputed, S2117. Last clear chance doctrine. § 2120. Concurrent negligence, § 2121. Injury to passenger by derailment, § 2123. Person placed in sudden peril, § 2125. Law holds one whose conduct causes injury, § 2127. Nature of man to protect himself, this is the measure of duty, § 2127. Injury from defective gun, § 2128. negligent carrying gun causing death, § 2129. Of owner of race track for injury to driver from defect of track, §2130. negligence of defendant to proximately cause injury, § 2131. diligence required of plaintiff, § 2132. Injury from natural gas explosion, § 2134. from failure to close and calk pipes, § 2135. Injury from explosion of boiler, §2136. Collision between street car and steam railway engine at crossing, §2137. Causing collision between cars on scenic railway in public jiark, §2138. In driving traction engine by unnecessary driving of traction engine frightening horses in field, § 1931. As applied to drivers of auto and pedestrian in street, p. 1179. Of pedestrian in crossing street, p. 1181. Imminent peril, choice between hazards. 8 1532. Nuisance — And negligence distinguished, §2100. Comprehensive view and definition of, § 2140. another form, § 2141. modern statutory definition, § 2142. 2214 INDEX. Nuisance — Continued. There must be actual injury — more than mere tendency, § 2143. Degree of annoyance to constitute, § 2144. Opening or excavation in street adjoining property owner, § 2145. Excavation in sidewalk in front of premises by contractor, duty of owner, § 2146. Excavation made by independent contractor, §2147. Traveler on highway may presume city has performed its duty with reference to streets, § 2148. Rights and obligations of adjoining landowners to each other, § 2149. o Ordinance — As to passing vehicles and carrying lights, § 1535. As to maintenance of gates at crossing, p. 1403. Regulating operation of street cars and autos, p. 2134. Ordinary care — Varies with circumstances, § 1830. Defined, §§2000, 2103. is of flexible nature, § 2096. Under circumstances of peculiar peril, §§2098, 2104. Parent — Liability of, for negligence of minor son driving auto, § 1542, par. 9. And son. fraudulent persuasion to make beneficial disposition, § 1799. Partnership — What constitutes. § 2150. may be inferred from acts and conduct, §2151. burden of proving, § 2152. Whether general agency exists between nartners, §2153. In one transaction, § 2154. Ostensible partner, § 2155. Right of surviving partner to wind up, § 2156. May by mutual consent orally modify, agreement, §2157. Passenger — (See Common- Caruiiks, Raii.koads, Street Railways.) Pedestrian — Negligence of, in streets. § 1523. par. 4. Relative rights of, and drivers of auto, § 1523, par. 5. Duty of, in crossing street, § 1523, par. 6. INDEX. 2215 Pedestrian — Continued. Duty of driver of auto to negligent, § 1523, par. 7. Equality of right of, and auto driver, § 1534, pp. 1179-1180, 1184n, § 1533. Look and listen crossing street, p. 1184n. Bound to be alert and watchful, p. 1184n. Mere failure to look not negligence, p. 1184m. Driver of auto may assume, will not suddenly turn back, § 1529. Going unexpectedly in front of auto, § 1530. Warnings given, causing bewilderment, § 1531. Placed in sudden danger, choice between hazards, § 1532. Perjury — Defined, §2158. Materiality of statement, § 2159. Willfully and corruptly, §2160. Oath to be lawfully administered, § 2161. Statements believed to be true, § 2162. More than one witness required as corroboration, § 2163. Personal property — (See Statutes of Limitation.) Annual products, § 2242. Growing fruit, § 2243. Of property by vendor when vendee insolvent and does not intend to pay for same, § 2244. financial condition of vendee, p. 2038. mortgage on property fraudulently brought, § 2245. Chattel mortgagee may prosecute replevin, when mortgagee attacked as fraudulent, § 2246. Physician — (See Malpractice.) Care required of, §§ 1996, 1998. Abortion by, see Abortion. Pocket-picking — Instructions in charge of, in full, § 2164. Aiding and abetting, § 2165. conspiracy, p. 1957. Possession driver not required to keep on lookout for horses, p. 1932. Trespass — (See Statutes of Limitation.) Trespassers — Habitually using railroad tracks, §§2217, 2218- On railroad track, duty after discovery, §§ 2219, 2220. V Vehicles — (See Stbeet Railways, Railroad Crossings.) INDEX. 2227: w Wanton negligence — Defined, § 2099. Warranty — In sale of horse, § 2270. express, defined, p. 2072. statement of opinion, p. 2072. opportunity for inspection and examination, p. 2073. damages, p. 2074. Wealth — As an element of damage, § 1955. Wife — (See Husband and Wife.) Claims to stock on farm of husband, p. 2044. must rebut presumption of ownership by husband, p. 2044. Wills — Who may make, § 2330. Requirements of a valid will, § 2331. Witnesses need not see it signed, § 2332. Declarations of testator to show condition of mind, § 2333. Instructions to jury in contest, in full, § 2334. order of probate prima facie evidence, burden, p. 2159. degree of proof, probabilities, p. 2159. capacity to make, p. 21(10. proof of undue influence, p. 2162. what constitutes undue influence, p. 21G2. declarations after making will, p. 2164. Insane delusion, § 2335. Old age and sickness as affecting mental capacity, § 2336. A concise charge in will contest in difl'erent form, § 2337. must know extent of property and objects of his bounty, p. 2170. provisions of will to be considered, p. 2171. need not be technically insane, weakness of intellect, p. 2171. undue influence, p. 2171. inequality or injustice of will, p. 2172. Consideration of will itself, § 2338. What if anything may be inferred fri)iii will, § 23.39. Moral depravity as alTecting mental capacity, § 2340. foolisli, caj)riciou3 or unjust will, p. 2174. mind weakened from age, excesses, disease, p. 2174. 2228 INDEZ. Wills — Continued. Moral depravity — Continued. knowledge of property, p. 2175. dissolute habits, p. 2176. Undue influence, other forms, §§2341, 2342, 2343. persuasion to make will, flattery, appeals to aflfection, § 2343. Nuncupative will, words written down not those spoken, § 2344. Witnesses — Criminal charges against, p. 1269. Impeachment of, what constitutes reputation, § 1731. Failure to call, p. 1557. Work and service — (See Contract fob Pebsonal Sebvice.) X X-ray — Liability of physician for injury caused by, § 2000. UC SOUTHERN REGIONAL LIBRARY EACILITY AA 000 760 126 3