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 contribut<iry negligence 1905
2110. Contributory negligence — Must be proximate cause of injury.. 1906
2111. When plaintiff must show himself without fault or to rebut
inference of negligence 1907
2112. Burden of proving contributory negligence 1907
2113. Contributory negligence as applicable to cliildren 1908
2114. Consent of children — Effect 1909
2115. Contributory negligence — Intoxication as affecting 1910
XXxii TABLE OF CONTENTS.
SECTION PAGE
2116. Contributory negligence — Husband performing duties as such
not agent of wife 1911
2117. Imputed negligence 1912
2118. Negligence — Of parent not imputed to child 1912
2119. Duty of employer to infant employee 1912
2120. The last clear chance doctrine 1913
2121. Concurrent negligence 1914
2122. When negligence of plaintiff not continuing, but that of de-
fendant is continuing and proximate, while that of plain-
tiff is remote 1915
2123. Injury to passenger by derailment res ipsa loquitur — Establish-
ing prima facie case 1915
2124. Burden of proof when injury caused by res ipsa loquitur 1916
2125. Sudden peril — Conduct of person placed in 1916
2126. Rescuing one from danger — Injury while attempting to rescue
— Contributory negligence 1917
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 1918
CHAPTER CXXII.
NsxiLiGENCB — Miscellaneous Cases.
2128. Injury from defective gun 1920
2129. Charge that gun was negligently carried, thus causing death.. 1921
2130. Liability of owner of racetrack for injury to driver from defect
in track 1921
2131. Same — Negligence of defendant must proximately cause injury. 1922
2132. Same — Diligence required of plaintiff 1923
2133. Liabilit}^ of county for injury by a mob 1924
2134. Injury from natural gas explosion — Independent contractor —
Rule of respondeat superior not applicable 1926
2135. Same — Injury from failure to close and calk pipes 1927
2136. Injury from explosion of boiler 1928
2137. Collision between street car and steam railway engine at cross-
ing — Action for damage to street car 1929
2138. Injury to passenger from collision between cars on scenic rail-
way in public park 1931
2139. Traction engine in highway lawful — No liability from ordinary
use — Not bound to be on lookout for frightened horses
in field — Owner or operator liable for wanton or unneces-
Bary sounding whistle 1933
TABLE OF CONTENTS. . XXXlll
CHAPTER CXXIII.
Nuisance,
section page
2140. Nuisance — Comprehensive view and definition of wrong 1934
2141. Definition — Another form 1936
2142. Modern statutory detijiition 1937
2143. Tiiere must be actual injury — More than mere tendency 1937
2144. Degree of annoyance to constitute 1938
2145. Liability of property owner for injury to traveler from open-
ing or excavation in street adjoining 1939
2146. Duty of lot owjiers where excavation is made in sidewalk in
front of premises by contractor 1941
2147. Responsibility of lot owner for excavation made in premises in
front of premises by independent contractor 1942
2148. Duty of traveler on highway — May presume that city has per-
formed duty with reference to streets — Lights and guards
in streets 1943
2149. Adjoining land owners — Rights and obligations of, to each other
— To what extent lower proprietor may dig 1945
CHAPTER CXXIV.
Partnership.
2150. What constitutes partnership 1946
2151. Partnership may be inferred from acts and conduct of parties. 1947
-152. Burden to prove partnership 1947
2153. Whether there was a general agency between partners 1948
2154. Partners in one transaction 1948
2155. Ostensible partner 1949
2156. Right of surviving partner to wind up firm 1949
2157. Partners may by mutual consent orally modify partnership
contract — Evidenced by books 1950
CHAPTER CXXV.
Perjury.
2158. Defined— The statuto 1051
2159. Materiality of statement ]!),') 1
2160. Willfully and corruptly — Meaning of 1952
2161. Oath to be lawfully administered 1952
2162. Statements believed to be true 195.3
2163. More tlian one witness required as proof — Corroboration 1953
XXXIV TABLE OF CONTENTS.
CHAPTER CXXVI.
Pocket-picking,
section pack
2164. Instructions in charge of pocket-picking 1955
2165. Pocket-picking — Aiding and abetting 1956
2166. Possession of property recently stolen in the crime of pocket-
picking 1960
CHAPTER CXXVII.
Railboads as Carriers of Passengers.
2167. Relation of carrier and passenger exists, when 1963
2768. Carrier to exercise high degree of care 1963
2169. Passenger must observe care for his own safety 1964
2170. Not bound to carry passengers on freight trains — Duty of com-
pany and passenger when so carried 1964
2171. Duty to furnish safe passage going to and from trains 1964
2172. When failure to carry passenger safely is shown, burden cast
upon carrier 1965
2173. Ticket agent's duty and authority — Reliance upon by passen-
ger 1965
2174. Duty of carrier as to putting off j)assenger at destination not
stopping place for train — Authority of local ticket agent
to bind company 1966
2175. Right to eject persons for failure to pay fare 1967
2176. Right to eject passenger for failure to pay fare — Liability if
unnecessary force used — Drunken or boisterous passenger . 1067
2177. Wrongful ejection of passenger through error of judgment.. ..1969
2178. Measure of damages for wrongful ejection of passenger 1969
2179. Duty to provide safe platform 1970
2180. Duty of carrier to passenger boarding train 1970
2181. Must protect passenger from violence 1971
2182. Not liable for assault not committed while in the prosecution
of master's business 1972
2183. Duty of to stop its trains at stations and of passengers to
get oflf 1972
2184. Duty to passenger falling from train 1973
2185. Duty as to stopping train for passengers to alight 1974
2186. Contributory negligence of passenger 1975
2187. Contributory negligence of passenger — Another form 1976
2188. Right of passenger to remain in waiting room a reasonable
time 1977
2189. Negligence of sleeping-car employee — Railroad company pre-
sumed liable for injury — Burden of proof 1978
TABLE OF CONTENTS. XXXV
SEXmON PAGE
2190. Injury to conductor ridinp: on train other than his own with
consent of conductor in charge 1979
2191. Liability for injury to passenger while assisting in caring for
sick passenger — Whether plaintiflF was directed or per-
mitted to assist in caring for passenger — Duty of com-
pany towards sick passejiger 1980
CHAPTER CXXVIII.
Railroad Crossings — Injuries at.
2192. Relative rights and duties of company and public to use
crossing 1987
2192a. Same, continued — Both must use faculties to discover danger.. 1988
2193. Duty (of deceased) to use senses on approaching crossing —
Another form 1988
2194. Tlie giving of signals when approaching crossing 1989
2195. Signals for the protection of persons about to cross the track. .1989
2196. Omission to ring bell and sound whistle 1990
2197. Relative duties of plaintiff and defendant — Plaintiff may drive
on when train standing stiii 1991
2198. Failure to look and listen, negligence — Duty of defendant to
give warning — View of plaintiff 1991
2199. Duty to provide safeguards if structures render crossing dan-
gerous — Question for the jury — Negligence of pedestrian . 1993
2200. Duty of driver of vehicle approaching crossing when view un-
obstructed, and where obstructed — Duty when flagman
gives signals — Must be free from negligence 1994
2201. Injury to pedestrian crossing track — Duty when there is tem-
porary obstruction — Standing on track and failing to look
for approaching train prima- facie negligence 1995
2202. Train has right of way — Duty of one about to drive across
crossing to stop when train in close proximity 1997
220.3. Duty of driver of vehicle to look just before crossing track. . .1997
2204. Duty of engineer in approaching crossings 1998
2205. Injury resulting from concurrent miscalculation of engineer
and driver of vehicle — No recovery 1999
2200. Duty of gateman in lowering gates 1999
2207. Duty of driver of iuitomobile at crossing 2000
2208. Driver of an automobile may rely on gateman giving notice. . .2001
2209. Driver of automobile placed in sudden peril at crossing 2001
2210. Imputing negligence of driver to occupant of automobile 2001
2211. Injury caused by backing train on vehicle at crossing 2002
2212. Injury to child climbing over train stopping on crossijig — Neg-
ligence under euch circuuiataiieeB 2002
XXXVl TABLE OP CONTENTS.
SECTION PAGE
2213. Same, continued — Whether child climbing over train guilty of
contributory negligence 2004
2214. Shunting cars, while making flying switch, across street cross-
ing 2005
2215. Presumption that every person exercises care for his own safety
when in danger — Burden of proof on defendant to prove
decedent did not look and listen before crossing track. . . .2006
2216. Defendant liable, though statutory signals given — When other
acts of negligence charged 2006
CHAPTER CXXIX.
Raileoads — Miscellaneous Cases of Negligence. LicBTNSiass — ^Tbbs-
PASSEBS — Fires — Stock Blocking Fbogs — Switches.
2217. Duty to persons habitually permitted to travel over tracks. . .2007
2218. Common use of railroad tracks by public as passageway 2008
2219. Injury to one walking on track — Company bound to give warn-
ing after discovery 2009
2220. Duty of company to trespassers on track — Arises only after
discovery 2009
2221. Required to guard against fire from locomotive 2010
2222. Negligent communication of fire from engine 2010
2223. Injury to stock on railroad 2012
2224. Escape of horse by reason of insufficient fence 2013
2225. Misplacement of switch for criminal purpose 2013
2226. Failure to block a frog 2014
2227. Omission to adjust, fill or block switch 2014
2228. Liability of company for injury to person standing on depot
platform, from mail-pouch thrown from mail-car 2018
2229. Injury to person traveling on right of way long used by public
caused by lump of coal falling from car, producing un-
conscious condition, being struck by yard engine while
in such condition 2019
CHAPTER CXXX.
Rape, and Assaults to Commit.
2230. Defined 2026
2231. Consent of female 2026
2232. Carnal knowledge complete, when 2027
2233. Capacity — Burden of proof when accused under fourteen years
of age 2027
2234. Evidence as to the character of the woman 2028
2235. Resistance— Evidence 2028
TABLE OF CONTENTS. XXXvii
SECTION PAGE
2236. Assault with intent to eoniniit rape 202!)
2237. Same, continued — Force — Consent, etc 2030
2238. Same, continued — Declarations of prosecuting witness 2031
CHAPTER CXXXI.
Repleivin.
223!). Short general instruction 2033
2240. Replevin of property of wife seized on execution against hus-
band 2034
2241. Conclusion of charge in replevin 2030
2242. Replevin — Annual products of the earth 2037
2243. Growing fruit — Whether personalty under any circumstances. .2037
2244. Replevin of property by vendor when vendee was insolvent and
did not intend to pay for same 2038
2245. Effect of mortgage given upon goods fraudulently bought 2040
2246. Chattel mortgagee may prosecute action for replevin — When
mortgage attacked as fraudulent 2041
2246a. Replevin of hogs by wife from purchaser on execution against
husband 2042
CHAPTER CXXXII.
Robbery.
2247. Instructions in charge of robbery 2051
2248. Taking property in presence or under the immediate control
of another 2053
224!). Conspiracy to rob 2054
2250. Conspiracy in the commission of robbery 2054
2251. Character of evidence to prove conspiracy 2055
2252. Liability independent of conspiracy 2056
2253. Assault with intent to rob — Violence concomitant with the
taking 2056
CHAPTER CXXXIII.
Sales — Wabrantt.
2254. Ralp— When complete 2058
2255. What constitutes valid sale — Fraudulent contract 2059
2256. Sale on credit 2060
2257. Representations as to financial condition invalidating — Insol-
vency of buyer — Intention — Persons presumed to antici-
pate probable consequences of known conditions 2061
XXXVlll TABLE OF CONTENTS.
SECTION PAGE
2258. What language constitutes warranty in sales 2062
2259. Buyer having opportunity to inspect — Caveat emptor — Rule
applies unless express or implied warranty 2062
2260. Recoupment of damages where vendee has used property under
warranty as to qualitj' 2063
2261. Notice of rescission, when necessary 2064
2262. Sale through mistake may be rescinded in action for purchase
price, when 2064
2263. \Miether delivery of wheat to mill a sale 2065
2264. Action to recover purchase price on sale — When article un-
suitable for use — Must be rescission and tender back... 2067
2265. Acceptance and continued use of thing sold after knowledge
that it will not work 2069
2266. Fraud and deceit in sale of property — Parties dealing on an
equality 2070
2267. Same, continued — Opportunity of inspection 2070
2268. Same, continued— What commendations may be made — Deal-
er's talk 2071
2269. Expression of opinion by seller as to amount, value and
quality 2071
2270. Breach of warranty in sale of horse 2072
CHAPTER CXXXIV.
Statutes of Limitations.
2270a. Revival of debt by promise 2076
2271. New promise to be in writing 2076
2272. Limitation upon an account 2076
CHAPTER CXXXV.
Street Railways.
2273. High degree of care required of common carrier 2080
2274. Company owes utmost or highest degree of care to passenger. .2081
2275. Duty of, as common carriers and as to cars and appliances. . . .2082
2276. Railway company not an insurer — Bound not to expose passen-
ger to hazards — Incidental hazards assumed by passen-
ger 2083
2277. Relation of passenger created on acceptance of fare 2084
2278. Company bound for acts and improper conduct of einployees. .2084
2279. Acceptance of person as passenger creates relation 2085
2280. Relation of passenger ceases when he has safely alighted on
the street. 2085
22S1. Starting car before passenger seated 2085
TABLE OF CONTENTS. XXXix
SECTION PAGE
2282. Ijijury while boarding car 2086
2283. Negligence in boarding car while in motion 2088
2284. Boarding car while in motion — Another form 2088
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 208^
2286. Contributory negligence in boarding moving street cars 2091
2287. Duty to stop at usual stopping places — Passenger on signaling
attempting to board before it stops 2092
2288. Duty to stop car long enough to afford passenger reasonable
opportunity to alight 2092
2289. Duty to assist passenger in alighting — Question for jury 2092
2290. IJljur^- to passenger while leaving car by being thrown from
car 2093
2291. Duty to stop car when desired stop communicated to conductor
on boarding car 2094
2292. Injury to passenger while alighting from car 2096
2293. Stopping cars for passengers to alight — Duty of conductor as
to passenger alighting 2099
2294. Injurj' while alighting from car by catching clothing on car —
Duty of passenger and company 2101
2295. Ejection of passengers for refusal to pay fare — Transfer
tickets 2102
2296. Damages for wrongful ejection of passenger 2103
2297. Duty of railway to travelers in street 2104
2298. Duty to use ordinary care to pedestrian 2105
2209. When motorman may assume that pedestrian will get out
of danger 2105
2300. Pedestrian may assume motorman will use due care 2106
2.301. Ordinary care required of person about to cross track at street
crossing 2106
2302. Injury to person on track — Duty of motorman — May presume
pedestrian will be prudent — Plaintiff may presume com-
pany will not be negligent 2107
2303. Relative rights and duties of pedestrian and street cars in
streets 2108
2.304. Duty of employees when car crossing street intersection where
car on opposite track discharging passengers 2108
230.J. Duty in avoiding injury to children, apparently intending to
cross street 2108
2306. Duty of parents in permitting cliihlren to go in streets 2109
2307. Injury to conductor by being struck by telephone pole while
walking along running board of car 2109
2.308. Injry to passenger while assisting driver of street car 2114
2309. Bound by acts of — Conductor and motorman in scoihj of em-
ployment 2115
Xl TABLE OF CONTENTS.
SECTION PAGE
2310. Reciprocal rights of vehicles and street cars 2115
2311. Duty of driver of vehicle to look before crossing 2115
2312. Duty of driver to stop vehicle before crossing track when car
approaching, when 21 16
2313. Collision between vehicle and street car at street crossing 2116
2314. Injury to driver of vehicle at street crossing 2122
2315. Injury to passenger in hired automobile from collision between
street car and automobile — By joint negligence of both —
Action against both 2128
2316. Street car colliding with automobile stalled on track on dark
night 2136
2317. Duty of motorman on meeting horse coming in opposite direc-
tion becoming frightened 2142
2318. Duty of driver of wagon in crossing track at street crossing —
Ordinary care — Look and listen 2142
2319. Duty of driver of vehicle about to cross track at street cross-
ing — Ordinary care only required 2143
2320. Driver of vehicle arriving at street crossing in advance of
street car has prior right to cross 2143
2321. Relative rights of street car and driver of vehicle at street
crossing 2144
2322. Duty of motorman to discover vehicle about to cross track and
avoid injury 2145
2323. Contributory negligence of children at crossings 2145
2324. Presumption of negligence from collision — Burden cast on de-
fendant 2146
2325. Prima facie negligence from collision 2146
2326. When person signals car intending to board it is to be treated
as passenger 2147
CHAPTER CXXXVI.
SUBETIES.
2327. Liability of sureties on bond of agent, where agent had pre-
viously defaulted — Duty of company to sureties 2148
2328. Contract strictly construed — When creditor accepting sureties
bound to inform them as to the business of suretyship —
Security for pre-existing debt 2149
CHAPTER CXXXVII.
TEN0EE.
2329. Definition and object of tender 2153
TABLE OF CONTENTS. xli
CHAPTER CXXXVIII.
Wills.
SECTIOX PACK
2330. Who may make a will 2155
2331. Requirements of a valid will 2156
2332. Witnesses need not see testator sign if acknowledged before
t^iera 2156
2333. Declarations of testator to show condition of mind 2157
2334. Instructions to jury in contest of will 2158
2335. Insane delusion 2165
2336. Old age and sickness as affecting mental capacity 2168
2337. A concise charge in will contest in different form 2169
2338. Consideration of the will itself 2173
2339. What, if anything, may be inferred from will 2174
2340. Moral depravity — As affecting mental capacity — Notable charge
of Longworth, J 2174
2341. Undue influence — What constitutes — Another form 2178
2342. Undue influence — Ix)ngworth, J 217!)
2343. Undue influence — Persuasion to make will — Flattery, appeal^
to affection 2180
2344. Nuncupative will — Words written down not those spoken 2181
PART II.
Instructions to Jury — Civil and
Criminal
1095
CHAPTER LXIY.
PROVINCE OF COURT AND JURY.
14.56. Relation of court, jury and 1458. Appropriate remarks in the
attorney — Zeal of coun- opening of a charge,
sel. 1459. Anotlier form of opening
14.")". Introductory in criminal case statement.
— Province of jury to as-
certain trutii — Province
of court — Of attorneys.
Sec. 1456. Relation of court, jury and attorney — Zeal of
counsel.
For fear that the heated, overweaning zeal of counsel may tend
to lead some of you away from the dignity and importance of
a judicial trial, and your positions and duties as jurors, you are
admonished that you should not by any means be misled from
the calm, staid, intelligent, impartial consideration of the matter
submitted to you. The discharge of your duties is a matter of
very grave moment not only to the parties to the suit, but to
the public welfare. The amount involved is of great conse-
quence to the parties, but the righteousness of the proceedings
of tliis court is of much greater importance.
The duties of the court and yourselves are decidedly different
from those of the attorneys, who frequently in their z(>al, 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<? admin-
ifltered without intent to kill, but to procure miscarria<re, it is
abortion. Robbins v. State, 8 O. R. 131. Offense complete if drug
administered with such intent at any time during gestation. Wil-
son V. State, 2 O. S. 319.
1108 INSTRUCTIONS TO JURY.
Sec. 1462. Testimony of husband as accomplice.
It is the duty of the e-uurt to charge you tliat you ought not
lo convict upon tlie uncorroborated testimony of an accomplice
It* you find that there is no other evidence of the commission of
this crime against the defendant than that which comes from
the husband of the deceased, you ought not to convict the de-
fendant, although you may properly do so if the evidence in the
case convinces your minds l)eyond a reasonable doubt of the
guilt of the defendant.
I also charge you in this regard that it is not necessary, in
order to corroborate an accomplice, that the crime charged l)e
proven independently of the testimony of the husband, or that
the testimony of the husband should be corroborated in every
particular in order that it may be said to be corroborated; but
it is only necessary that there should be circumstantial evidence
or testimony of some witness other than the husband tending to
connect the defendant with the crime charged and to prove some
of the material facts testified to by the husband. And you may
find the husband's testimony to be corroborated if you find facts
and circumstances independent of his testimony tending to sug-
gest the probability that the defendant committed the crime
charged in the indictment.^
1 Request by State giAeii in State v. Tippie. supra. Evans J.
Sec. 1463. Belief that uterus contained dead foetus.
The defendant's belief that the uterus of Mrs. E., the deceased
woman, contained a dead foetus is not sufficient of itself to
justify the procuring of a miscarriage under the laws of this
state; neither will this belief exonerate the defendant from
prosecution under our statutes for causing the death of a woman
in consequence of a drug administered with the intent to procure
a miscarriage.^
1 Request by State jjiven in State r. Tippie, supra.
Sec. 1464. Presumption of innocence continues until verdict.
You are instructed by the court that where a person is charged
with crime the law presumes the accused to be innocent ; and this
ABORTION. 1109
presumption of innocence does not cease when the jury retires.
This presumption of innocence accompanies the accused through
the trial do\\Ti to and until the juiy reach a verdict, and it is
the duty of the jury, if possible, to reconcile the evidence with
this presumption.^
1 State V. Tippie, supra.
Sec. 1465. Unwise to convict on uncorroborated testimony of
accomplice.
The witness, A. H. E., admitted in his testimony that lie was
an accomplice in the crime charged in the indictment, and the
court says to you that it would be unsafe and unwise for the
jury to convict the defendant upon his uncorroborated testi-
mony.^
1 Request by defendant given in State l-. Tippie. siipi-a. and affirmed, 88
O. S.' — .
Sec. 1466. Reasonable doubt as to intent — Reasonable proba-
bility of innocence creates reasonable doubt.
Before the jury would be warranted in returning a vi-rdict
of guilty, you must find from the evidence beyond a reasonable
doubt that the defendant intended to procure the miscarriage
(if one N. E. at or about the time alleged, and by the means
alleged in the indictment.
It is not necessary that the jury should be satisfied that the
defendant is innocent to justify a verdict of not guilty, but it
is necessary that all the jurors should be convinced beyond a
reasonable doubt that he is guilty before a verdict can lawfully
be rendered against him.
If there is any reasonable probability of the innocence of the
defendant, then a reasonable doubt of his guilt exists, and the
jury must find a verdict of not guilty.'
1 Reque.'it \>\ 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.<isanlt. Any unlawful beat-
ing or other wrongful physical violence inflicted on a human
being ^nthout his or her consent and without excuse or cause
constitutes an assault and battery. An intent to assault and
injure a person may be inferred, as already stated, from an
unlawful assault and battery, should you find one to have been
committed by the defendant beyond a reasonable doubt.
The crime of assault mth intent to kill embraces within that
charge not only assault and battery, but a simple assault ; and
the court has defined those terms to you, all of them ; and you
may acquit him of assault with intent to kill and find him guilty
of assault and battery, or you may acquit him of assault and
battery and find him guilty of assault, according to your own
judgment, applying the law as the court has endeavored to give
it to you.^
1 State V. Snyder, Frank. Co. Com. PI., Kinkead, J.
ASSAULT WITH INTENT TO KILL. 1163
Sec. 1508. Assault with intent to kill — Includes lesser grades.
■ ' If you should find from the evidence tJiat had death resulted
from the assault, the killing would have been manslaughter only,
then you should find him, the defendant, guilty of assault and
battery only, and not guilty of assault with intent to kill. But
if you should find that such killing, had death resulted, would
have been murder in the first degree or murder in the second
degree, then you should find the defendant guilty as charged in
the indictment. ' ' ^
1 State t'. stout, 49 0. S. 270.
Sec. 1509. Assault — Battery — ^Intent.
"You will inquire whether there was an assault with intent
to murder. An assault is an attempt or offer, with force and
violence, to do some corporal hurt to another. If the attempt
or offer be carried into effect, there is more than an assault ;
there is battery also, and the only question is as to the intent.
Was it to commit murder? In other words, if M. had been
killed, would the prisoner be guilty of murder? If they were
attempting to commit a burglary, it would have been murder in
the first degree. If not, and they had yet killed him maliciously,
it would have been murder in the second degree. Either will
satisfy the statute. But if you think the killing would have
been manslaughter only, you can not convict. And tliis nuist be
the case, if you believe, either that there was no intention to
kill, or, if an intention, that it was the effect of passions, roused
in a sudden quarrel, and that there was no malice, that is, no
culpable disregard of another's rights." ^
1 Timothy Walker in Ohio v. Shields, 1 W. L. J. 118, quoted in State v.
Stout, 270.
CHAPTER LXXIII.
ATTORNEYS.
SEC. SEC.
1510. Breach of contract of em- 1512. Action to recover fees, gov-
ployment — Contingent erned by same principles
fee in collection of ac- as other employment,
count. 1513. Quantum mei'uit, when no
1511. Presumption from employ- special contract.
ment of an agreement to 1514. Facts to be considered in de-
pay reasonable compen- termining value of serv-
sation. ices.
1515. Expert opinion as to value of
services.
Sec. 1510. Breach of contract of employment — Contingent
fee in collection of account.
The jury is instructed that where an attorney at law accepts
an account for collection with an agreement that he is to have
as compensation a certain per cent, of the amount collected, and
the client, Avithout sufficient cause, and without giving the attor-
ney a reasonable time to make collection, wrongfully takes the
account out of the hands of the attorney, the latter is entitled in
such case to recover damages for such breach of contract, pro-
vided it is made to appear that the claim so placed in his hands
was valid and collectible.
In such case the measure of damages is the amount of com-
pensation stipulated for the contract, which, however, is not
dependent upon what w^as finally collected on the account by
another.^
If, therefore, the jury finds, etc.
iScheinesohn v. Lemonek, 84 O. S. 424; Am. Ann. Cas. 1912 C. 737, and
note.
Sec. 1511. Presumption from employment of an agreement to
pay reasonable compensation.
The jury is instructed that when one cmters into a contract
to employ an attorney in a particular service, it is presumed
1164
ATTORNEYS. 1165
that such person undertakes and agrees to pay such attorney for
his services such an amount as under all the circumstances tliey
are reasonably worth.^
Walnut Hills S. &c., Co. v. Haley, 8 X. P. 557.
Sec. 1512. Action to recover fees, governed by same princi-
ples as other employments.
The jury is instructed that an action brought by an attorney
at law to recover for professional sendees depends upon the
same principles, and is governed by the same rules that apply to
other actions brought to recover for services rendered in any
lawful employment.^
1 Kittridge v. Armstrong, 28 W. L. Bull. 240.
Sec. 1513. Quantum meruit when no special contract.
The jury is instructed that when an attorney at law seeks by
action to recover for services rendered by him to a client, and
no special contract is made between the parties concerning the
compensation which the attorney shall receive for his services,
the rule of law is that such attorney, the plaintiff herein, is
entitled to recover upon the quantum meruit, that is, what his
services are reasonably worth, so much as the services may be
worth, so mueli the ser^dces deserve.
The burden rests upon the plaintiff to prove the work or
service rendered by him for the defendant, as well as what the
same was reasonably worth.^
1 Kittridge r. Armstrong, 28 W. L. P.ull. 249.
Sec. 1514. Facts to be considered in determining value of
services.
In estimating and determining the reasonable value of the
services rendered by plaintiff, the jury should take into consid-
eration the nature and importance of the controversy in which
the service M^as rendered, the novelty, the intricacy and doubt-
fulness of the questions involved, the amount in controversy, the
1166 INSTRUCTIONS TO JURY.
nature of the services required of the lawyers, their standing in
the profession for learning and skill and proficiency in their
employment, together with the result accomplished. The reason-
ableness of the compensation is to be determined by the jury
from the evidence like any other controverted fact, and not
according to the personal views of jurors. The jury must con-
sider and be guided only by the evidence.^
1 Kittridge v. Armstrong, 28 W. L. Bull. 240, Hunt, J.
Sec. 1515. Expert opinion as to value of services.
The law permits persons familiar with the value of the ser\'-
ices of a lawyer to give an opinion as to what they are worth,
since no market value can be placed on such services. Experts
or witnesses shown to be skilled, learned or experienced in the
subject of controversy in an action may be permitted to give
their opinion upon a given state of facts, that is, those claimed
to have been proven by the evidence in an action.
The evidence of experts as to the value of professional services
does not differ in principle from such evidence as to the value
of any other labor or services rendered in any line of labor,
trade or business. The legitimate purpose thereof is to give aid
and enlightenment to the jury concerning the value of services
in controversy. It is the province and duty of the jury to weigh
and consider the evidence of the attorneys who have given tes-
timony as to the value of the services, together with all the other
evidence touching their nature, the time occupied and the at-
tending circumstances.
The jury will keep in mind the distinction between original
evidence and opinion evidence given by the attorneys, it being
within your exclusive province to give such weight to the opin-
ions concerning the value of the services by the several witnesses
as you, in your judgment, deem proper.^
iSee Kittridge v. Armstrong, 28 W. L. Bull. 249.
CHAPTER LXXIV.
AUTOMOBILES— INJURY BY.
(See Bailments.)
1516. Relation of employer, or own-
er, and chauffeur.
1517. Liability of owner who hires
auto with his licensed
chauffeur to another, to
be used for a definite
time, and for specified
fee.
1518. Master loaning servant to an-
other becomes liable for
his acts.
1519. Liability of garage owner
who hires out automo-
bile with driver, where
hirer exercises no con-
trol over driver except
to give directions as to
routes.
1520. Duty of one operating sight-
seeing automobile.
1521. Liability of owner for injury
from acts of driver al-
leged to have taken car
under express or implied
authority for taxi-serv-
ice, denied bj' owner.
1. Statement of questions.
2. Ownership not evidence of
agency — Burden of prov-
ing agency.
3. Test of master's liability
— Was servant in the
course or scojie of em-
ployment.
4. Was drunk.
SEC.
1522. Ownersliip of machine and
operation thereof by serv-
ant employed for that
purpose create prima
facie liability — But un-
der general denial the
burden is on plaintiff to
prove that such servant
was engaged in business
or service of master.
1523. Injury to person while cross-
ing street from collision
with automobile running
at high rate of speed —
Contributory negligence
of plaintiff — A complete
charge.
1. Statement of questions.
2. Burden on plaintiff to
prove negligence of de-
fendant; on defendant to
prove plaintiff's con-
tributory negligence.
3. Degree of care, and cred-
ibility of witnesses.
4. Negligence as applied to
drivers of automobiles in
streets aiul to travelers
therein, defined.
5. Relative rights and duties
of drivers of automo-
biles and pedestrians in
streets.
1167
1168
INSTRUCTIONS TO JURY.
SEC. SEC.
6. Duty of driver of automo- 1535.
bile to negligent pedes-
trian.
8. Was negligence of defend- 1536.
ant proximate cause of
injury — Proximate cause
defined.
9. Concurrent negligence. 1537.
1524. Driver must anticipate meet-
ing pedestrians at street
crossing.
1525. Duty of driver to give signals 1538.
at street crossing, and to
adopt other precautions.
152G. Duty of drivers as to speed —
The statute.
1527. Same — ^Violation of statute — 1539.
Prima facie negligence —
Xot conclusive.
1528. Duty of drivers in meeting
others driving in streets
— Reasonable lookout — 1540.
Control of machine.
1529. Driver, keeping lookout, hav- 1541.
ing car under reasonable
control, may assume pe-
destrian will not sud- 1542.
denly turn backward.
15.30. Pedestrian going unexpectedly
in front of auto.
1531. Warnings given pedestrian
causing bewilderment.
1532. Driver running excessive rate
of speed approaching
crossing — Gives no signal
— Pedestrian placed in
sudden danger — Not neg-
ligent if injudicious
choice made between haz-
ards.
1533. Automobile, lawful means of
conveyance — Equality of
right between driver and
pedestrian.
1534. Correlative duties of driver
of auto and pedestrian.
Ordinance as to passing ve-
liicles and carrying
lights — How considered.
Operator of auto may assume
persons at street cross-
ing will exercise ordi-
nary care.
Driver of auto and other ve-
hicle both negligent —
Concurrent negligence —
Proximate cause.
Whether driver of auto act-
ing as agent or servant
of owner — Or whether
person hired it for him-
self alone.
Equality of right of street
railway and driver of
automobile — Relative du-
ties of each — Familiarity
of driver with crossing.
Duty of driver of auto at
railroad grade crossing.
Driver of automobile placed
in sudden peril through
neglect of another.
Injury by collision between
two automobiles — Plaint-
iff charges excessive
speed causing injury to
her machine — Defendant
counterclaims for injury
to his machine by same
collision.
1. Statement of claims of
phiintiff and defendant.
2. Burden of proof.
3. Credibility of witnesses —
Testimony and evidence
distinguished — Ultimate
fact to be found.
4. Negligence of party to be
determined — Negligence
in the use of automo-
biles in city.
AUTOMOBILES INJURY BY.
1169
0. Duty of driver in ap-
proaching street intersec-
tion.
6. Driver of autos required
to observe law of road.
7. Duty as to speed.
8. Both parties chiiming re-
lief, but one can recover.
9. Minor son of defendant
driving — His authority
— Liability of fatlier for
negligence of son.
10. Same continued — Automo-
bile, thoxigh not danger-
ous instrumentality, still
may become so, if reck-
lessly driven — Effect of
legislative regulations.
11. Same continued — Implied
authority by father to
son to use and drive
auto.
12. Same continued — Jury to
determine whether negli-
gence of either plaintiff
or defendant caused col-
lision.
13. Same continued — -Contrib-
utory negligence and con-
current negligence as
applied to case.
14. Precautionary instruction
as to description of speed
by witnesses.
15. Direction as to verdict.
1543. Injury to passenger in auto-
mobile, the guest of hirer
from owner, who fur-
nislies chauffeur to drive
— Liability dependent
upon contract of hiring,
as well as upon whether
driver is engaged in tlie
service and business of
the owner.
1. I nder general denial
plaintiff bound to prove
use of machine by Iiirer
within bailment of liir-
ing, as also tliat chauf-
feur was engaged in
service and business of
master.
2. Credibility of witnesses —
Wliat to be considered —
Men and women on "joy
ride," using intoxicating
liquors.
3. Plaintiff must show cliauf-
feur to have been within
tlie business of owner.
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
be unable to use ordi-
nary care — Circumstan-
tial evidence — Inferences.
5. Evidence that chauffeur
permitted another to
drive car at time of in-
jury, and as to intoxica-
tion, consisting of dec-
larations as ])art of res
(jestac.
6. Driver permitting another
to drive machine departs
from dutj- and service of
master.
7. Scope of employment and
service of chauffeur, to
be determined by con-
tract of hiring.
8. Assessment of damages —
Fair and reasonable
compensation, to botli de-
fendant and plaintiff.
1170 INSTRUCTIONS TO JURY.
Sec. 1516. Relation of employer, or owner and chauffeur.
The jury is instructed that the acts of the chauffeur, in operat-
ing an automobile, within the authority of his employment, are
the acts of a servant. The relation of master and servant exists
between the chauffeur and his employer, and the rules of law
applicable to that relation apply.^
1 Hannigan v. Wright, 5 Pennew. Del. 537, 540; Babbitt Motor Vehicles,
sec. 546; Cunningham v. Castle, 111 N. Y. Supp. 1057, 1062.
Sec. 1517. Liability of owner, who hires auto with his licensed
chauffeur, to another to be used for definite
time, and for specified fee.
The jury is instructed that a person [or corporation] engaged
in the business of letting out automobiles for hire has certain
obligations and duties which are required of him in law, and
which are imposed because of the nature and character of such
machines. The management of an automobile should only be
intrusted with one who is qualified by knowledge and experience
to properly run, manage and control the same. The dangers
incident to their use in the highways from improper use, control
and management of the same are such that the state has enacted
certain police regulations applicable to their use. The law will
not permit such vehicles to be run in tlie highways without a
license, and not otherwise, except by a licensed chauffeur, unless
the same be driven by an owner. The danger of loss and injury
to property as well as of personal injury to persons riding in
the machines as well as those traveling in the high-
ways, unless carefully and prudently managed and controlled,
is snch as to require the exercise of care in their use such as is
commensurate with the dangers incident to such use.
Where control and management of the machine is given up
to a hirer, the owner is required to furnish a competent driver
of the same.^
The jury, therefore, is instructed that where the owner of an
automobile lets or hires it out to another, with a licensed chauf-
AUTOMOBILES INJURY 1$Y. 1171
feur in his employ in charge of it under contract and agreement,
by the terms of wliich the owner is to receive a definite sum
for the use of such car, together with the driver during the
period of hiring, such owner under such contract of hiring isi
responsible and liable under the law for the acts and conduct
of the chauffeur in the management, control and driving of the
automobile during the period of time covered by such employ-
ment. -
1 The reason for the rule of law above stated may he omitted if thought
best; they are those, however, cited in the autliority below cited.
aShepard v. Jacobs, 204 Mass. 110; 26 L. R. A. N. S. 442; 134 Am. St.
648; 90 N. E. 392.
Sec. 1518. Master loaning servant to another becomes liable
for his acts.
The jury is instructed that a master may lend his servant,
with consent of the latter, to another person for service in the
business of the other, and that while engaged in the business of
the other person and in all respects subject to his direction and
control, he becomes the servant of the new master, and this
master becomes liable for his negligence. In determining
M-hether, in a particular act, he is the servant of his original
master or of the person to whom he has been furnished, the
general test is whether the act is done in business of which the
person is in control of as a proprietor, so that he can at any time
stop it or continue it, and determine the way in which it shall
be done, not merely in reference to the result to be reached, but
in reference to the method of reaching the result.
The jury is instructed that while such servant is engaged in
the business of the one to w'hom he has been loaned, and while
engaged in the business of the latter and if he is in all respects
under his direction and control, he becomes the servant of the
new master, who becomes liable for the negligence of the servant.^
iShepard v. Jacobs, 204 :Mas8 110; 90 N. E. 392; 134 Am. St. 648;
Sacker v. Waddell, 98 Md. 43; 103 Am. St. 374.
1172 INSTRUCTIONS TO JURY.
Sec. 1519. Liability of garage owner who hires out automo-
bile with driver, where hirer exercises no control
over driver except to give directions as to route.
The jury is instructed that a chauffeur sent by the owner of a
garage to operate an automobile leased for a pleasure ride, and
who obeys the directions of the person hiring the car, and who
does no more than to follow and obey the directions given by the
hirer as to the routes or places where the machine is to be driven,
is the servant of the owner of the automobile and garage and not
of the person hiring the same. Hence it follows that the owner
of the automobile and garage is responsible and liable in law for
any acts of negligence of such servant or chauffeur committed
by him within the scope of his employment, as well as the
service of his employer or master.^
iGerretson v. Rambler Garage Co., — Wis. — ; 136 X. W. 186; 40 L. 11.
A. 457.
Sec. 1520. Duty of one operating a sight-seeing automobile.
The jury is instructed that one who operates a sight-seeing
automobile over regular routes in a city, which he holds out to
the public for common carriage of all who may desire to take
passage therein, and which he invites the general public to pat-
ronize for hire, owes to the patrons or to those becoming passen-
gers therein, the duty of exercising, in tlie management, opera-
tion and control of such vehicle, the highest degree of care con-
sistent with the proper and ordinary transaction of the business
so being conducted.^
1 Hinds r. Steere, 209 Mass. 442; 95 N. E. 844; .35 L. R. A. 658. The
highest degree of care was imposed in this case because it was re-
garded as a common carrier. But the courts have not extended
that measure of care to ordinary hiring.
Sec. 1521. Liability of owner for injury from acts of driver
alleged tO' have taken car under express or im-
plied authority for taxi-service, denied by owner.
1. 8tateme7it of questions.
2. Oivnersliip- not- evidence' of agency — Burden of proving
agency.
AUTOMOBILES INJURY BY. 117;5
3. Test of maker's liability — ^Vas servant hi the course or
scope of employment.^
4. Was driver of auto ivithin scope of employment and
engaged in master's business at time of injury.^
1. Statement of question. The question for the jury to deter-
mine is whether L. had authority, either express or implied,
from A. to take the machine out and hire it to C. during the
period of time which L. had it and to drive it to the place or
places where it was driven. If L. did have such authority, was
he acting within the scope of such express or implied employ-
ment at the time of the injury, and was he guilty of negligence
which caused the injury?
2. Oivncrsliip not evidence of agency — Burden to prove
agency. Ownership of an automobile in and of itself is not to
be taken as prima facie evidence that one who is driving it at a
particular time is the agent of the owner.
The fact that one is shown to be the o"\\Tier of an automobile
which is being driven by another is not alone to be considered
as evidence tliat the one who is driving it is an agent or servant
of the owner.^ The burden is upon one who complains of injury
from being run down by the machine to show not only the fact
that the person driving the car was the servant of the owner,
but he is bound also to prove that such driver at the time of the
injury engaged in the master's business, either with the express
or implied knowledge and consent. So the burden is on plaintitf
to prove by the greater Aveight of the evidence that the one who
was driving the car in this case was at the time of the injury
the servant or agent of the defendant, and that he was at such
time engaged in the business or service of the defendant.
The claim asserted by plaintiff being that defendant had pre-
viously given general authority to L. to let out machines for
hire, as well as that under all the circumstances plaintiff had
impliedly given such authority, it is therefore incumbent on
plaintiff to show either such express authority or to show by
some fact, circumstances, declaration or act of the defendant
1174 INSTRUCTIONS TO JURY.
that lie had impliedly authorized L. to let out or take out and
to drive his automobile for hire. In deciding this, you may
consider the location and the situation of the parties in their
business in respect to their connection and location, as well as
all that they may have said and done, if anything, touching the
subject of hiring of machines owned by defendant, including
the payment for the use of the car and its receipt by the de-
fendant.
Wliere it is sought to hold the owner of an automobile for
personal injury caused while it is being driven by another, the
rules of law touching master and servant are to be applied.
If you conclude that L. had no authority to hire out the machine,
and that he took it out without authority, your verdict shovild
be for the defendant. But if you find that L. had authority to
hire out and drive the machine, then you will apply the rules
of law pertaining to master and servant, and consider and de-
termine the question whether L. was acting within the scope of
his employment at the time of the injury.
3. Test of master's liability — Was servant in the course or
scope of employment f The test of the master's liability for the
act of a servant is whether the servant was acting at the time
within the scope of the employment, and as well whether the
act was done in the prosecution of the business in which the
ser\'ant was employed to assist.- The term "in the course or
scope of employment or authority" means while engaged in the
particular employment or authority. That is, it means while
engaged in the service of the master, or while about the master's
business. It does not mean during the period covered by the
employment. It does not embrace any service after the discharge
of L. by C, except to cover the trip by L. from Cincinnati to
Columbus ; whether L. at the time of the accident was acting
within the scope of his emplojrment or service, involves an in-
quiry into the contract of hir employment, if any there was,
and the relation of his acts at the time of the accident to the
service actually performed in his employment, if there was any
employment.
AUTOMOBILES — INJURY BY. 1175
For acts done by L. in any sense warranted by express or
implied authority, the ultimate inquiry in this case concerning
the relation between the parties, resolves itself into one of fact
under the particular evidential facts in this ease which it is
the pro\'ince of the jury to determine.
4. Was driver of auto iciiltin scope of employtivent and engaged
in maMer^s business at time of injury* The jury is instructed
that if L. had either express authority, or if the facts and cir-
cumstances warrant the inference of an implied authority to
him, to hire out and drive the machine, it had relation to per-
forming the service of hiring the car to C. and to driving it
for liim according to his wishes and directions. That is what
the scope of particular employment embraced or included, if
there was such employment. If you find that L. took the
machine with authority and was engaged in the service of
driving the same for C. as hirer thereof, the jury will determine
whether at the time of the accident or injury, he was engaged
not only within the scope of the particular employment, but
within the line of service and business of such employment.
A master may be held liable for the act of a servant only when
the latter is acting within the express or implied authority of
the master, when engaged in his business within the course of
the employment, or when performing the particular work or
service for which he was engaged.
If the jury find that L. was authorized to hire out and to
drive the car, still the defendant may not be held liable as
master for the acts or neglect of L. as servant, if at the time
of the injury he had departed from the business and service of
the defendant, and was not acting in pursuance of the general
purpose of the employment, or in relation to the master's work.
An owner of an automobile can not l)e held responsible for
injury caused })y one who has taken it under either express or
implied authority, who has departed from the scope and j)urj)ose
of the legitimate use or employment of the machine, and M'ho is
at the time engaged in driving the same for his own pleasure and
enjoyment,
1176 INSTRUCTIONS TO JURY.
There can be no liability on the part of the defendant if the
jury find that L., at the time of the accident, was not acting in
pursuance of any request or direction of C. (hirer). If, at the
time, he was not driving the car in pursuance of the contract
of hiring, and if he was not driving it by the direction of the
person who hired it, but instead thereof he was driving it for liis
own business or pleasure, the defendant can not be held for the
consequences of L.'s acts of aeglect when so driving the auto-
mobile.
If the jury find that C. (the hirer) had paid L. in full for
his services and the use of the machine; if C. did not thereafter
authorize or request L. to drive the car on Sunday evening
when the accident occurred, then you are instructed that the
defendant can not be held responsible for his acts at that time,
even though you may find that the relation of master and serv-
ant existed between defendant and L., because whatever the
latter did under such circumstances was on his own account and
was beyond the scope of the particular employment and not
within the business of the defendant.
If you find that C. paid L. in full for the use of the automo-
bile, and the contract of hiring was at an end, except that there
remained nothing for L. to do but to return the car from Cin-
cinnati to Columbus, and that subsequently thereto he was driv-
ing the car in Cincinnati for his own pleasure, your verdict
should be for the defendant.^
iLotz V. Hanlon, 217 Pa. St. 339; White Oak Coal Co. v. Rivoux, 88 0.
S. 31. [See ante, chapter, Burden of Proof.]
2 White Oak Coal Co. v. Rivoux, supra.
s Modeled from Lorenz v. Adamson, Franklin County Common Pleas (Kin-
kead, J.). L. & A. occupied the same building, L. having a repair
shop, and A. an automobile sales agency. L. hired the machine of
A. out, driving :t himself.
"The owner of an automobile is not liable in an action for damages for
injuries to or death of a third person caused by the negligence of
an employe in the operation of the automobile, unless it is proven
that the employe, at the time, was engaged upon his employer's
business and acting within the scope of his employment." White
Oak Coal Co. v. Rivoux, 88 0. S. .-31.
AUTOMOBILES — ^INJURY BY. 1177
Sec. 1522. Ownership of machine and operation thereof by
servant employed for that purpose create
prima facie liability — But under general de-
nial the burden is on plaintiff to prove that
such servant was engaged in business or
service of master.
The jury is instructed tliat wliere it is shown that a person
is the owner of an automobile and that while it is being run and
operated by a servant and agent of such owner who is employed
under express or implied authority to drive and operate the
same in the business of the master, and such servant is guilty
of negligence in the handling and operation of such machine,
the owner in such case and under such circumstances is prima
facie liable for injury done by and through the neglect of such
servant.^
But where the defendant makes a general denial of a claim
for recovery against him because of the negligence of his driver
and ser\'ant, the "burden," so called, or rather the plaintiff is
bound to produce the quantum of evidence — a preponderance
thereof — to prove that such servant or chauffeur was not only
acting within the scope of his employment, but that, at the time
of the injury complained of, he was engaged in the service and
basiness of his master, the owner of the automobile. The de-
fendant not being bound to do more than to introduce evidence
to countervail the prima facie case made by plaintiff by proof
that the person in charge of the machine was regularly employed
by defendant to drive and operate the automobile, the burden
and obligation still remain on plaintiff throughout and on the
whole case to establish, by the greater weight of the evidence,
the fact that the servant at the time of the injury was engaged
in the service and business of the defendant.^
1 White Oak Coal Co. v. Rivoux, 88 0. S. 31.
2 Klunk V. Railway, 74 O. S. 125.
1178 INSTRUCTIONS TO JURY.
Sec. 1523. Injury to person while crossing street from collision
with automobile running at high rate of
speed — Contributory negligence of plaintiff —
A complete charge.
1. Statement of questions.
2. Burden on plaintiff to prove negligence of defendant;
OH defendant to prove plaintiff's contributory negli-
gence.
3. Degree of evidence and credibility of witnesses.
4. Negligence as applied to drivers of automobiles in streets
and to travelers therein, defined.
5. Relative rights and duties of drivers of automobiles and
pedestrians in streets.
6. Right and duty of person in crossing street.
7. Duty of driver of automobile to negligent pedestrian.
8. Was the negligence of defendant the proximate cause of
the injury. — Proximate cause defined.
9. Concurrent negligence.
1. Statement of questions. The questions are, whether the
defendant was guilty of the negligent conduct which was the
proximate cause of the injury, and whether the plaintiff himself
w^as guilty of negligence which proximately contributed to the
injury complained of by him.
The act of negligence charged by the plaintiff against the de-
fendant is that the latter was running at a high rate of speed,
at least fifteen miles an hour.
The defendant denies that he was guilty of any negligence.
2. Burden on plaintiff to prove negligence of defendant; on
defendant to prove plaintiff's contributory negligence. The
burden of proving that the defendant was negligent in the par-
ticulars charged, and that his negligence was the proximate
cause of the injury complained of, rests upon the plaintiff.
The burden of proving that plaintiff was guilty of contribu-
tory negligence as the proximate cause of the injury rests upon
the defendant, unless the testimony introduced on behalf of the
AUTOMOBILES INJURY BY. 1179
plaintiff raises a presumption or inference of contributory neg-
ligence on his part, in which event the burden of proof devolves
npon plaintiff, not only to rebut this presumption, but to estab-
lish the fact that there was no such contributory negligence on
his part, or that it was not the proximate cause of the injur3^
3. Degree of evidence and credihiliiy of witnesses. The ulti-
mate fact found by you from the evidence must be established
by a preponderance of the evidence. This means that the fact
which you find must be established by the gr<>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<? was kept out by one of the parties con-
cerned in the hiring, who gathered up a party of men and women.
1224 INSTRUCTIONS TO JURY.
who visited wine rooms, taking liquors in tlie machine. No report
to the garage was made after return from Urbana, though the
machine was driven to the place of defendant to obtain gasoline,
but the evidence did not directly show that knowledge of this fact
was brought to defendant.
2 White Oak Coal Co., v. Eivoux, 88 0. S. 31.
3 Klunk V. Railway, 74 O. S. 125.
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 Babbit Motor Vehicles, sec. 537; Slater v. Advance Thresher Co., 97
Minn. 305.
6 Intoxication can be shown as a contributory cause. Babbitt Motor
Vehicles, sees. 2'52, 450, 915; Thompson on Neg., 2d ed., sec. 452;
McFern v. Gardner, 121 ]\Io. App. 1: McPhee v. Scully, 163 Mass.
219, 40 L. R. A. 143, and cases cited.
7 Babbitt Motor Vehicles, sec. 5(3(5. See Long v. Nute, 123 Mo. App. 204 ;
Patterson v. Kates, 152 Fed. 481. See Berry Autos, sec. 137.
See cases cited in opinion in 88 O. S. 31.
CHAPTER LXXV.
BAILMENTS.
SEC. SEC.
1544. Loss of goods by negligence 154C. Proprietor of garage bound
of storage companj^ — to exercise supervision
Whether occasioned by over employees to guard
natural decay, or by neg- against wrongful taking
ligence in maintenance of out of stored auto,
temperature. 1547. Liability of garage keeper
1545. Liability of garage keeper for allowing customer's
for safety of automobile automobile to be taken
entrusted to him. out without authority.
Sec. 1544. Loss of goods by negligence of storage company,
whether occasioned by natural decay, or by
negligence in maintenance of temperature.
It is one of the conditions of the contract of storage between
the parties that defendant company should not be responsible for
loss or damage to property occasioned by natural decay.
If you find from the evidence that the goods in question were
stored in a dry and suitable room, and that the defendant main-
tained the temperature of the storage rooms as stipulated for in
the storage agreement therefor, and that the goods were dam-
aged by natural decay, then defendant is not liable, although
you may find the goods in question were returned in a damaged
state as the result of such natural decay. And your verdict in
such case should be for defendant.
If you find from the evidence that defendant failed to main-
tain the temperature of the cold storage room as stipulated for
in the agreement, and allowed the same to become warmer or
colder than that stipulated for, and you furtlier find as the
direct result of such failure the goods of plaintiff were damaged,
or if you find from the evidence that defendant was negligent in
1225
1226 INSTRUCTIONS TO JURY.
respect to placing the goods in question in an unsuitable room
as alleged, and you further find as a direct result thereof that
plaintiff's goods were damaged, then the plaintiff is entitled to
your verdict.
It was the duty of the defendant to exercise reasonable care
in placing the goods in a suitable room for such storage. Negli-
gence is the want of ordinary care, and may consist in doing
something that ought not to be done, or in not doing something
which ought to be done. And ordinary or reasonable care is that
degree of care which persons of ordinary care and prudence are
accustomed to use under the same or similar circumstances.
If you find from the evidence that defendant failed to main-
tain the temperature of the cold storage room as stipulated for
in the agreement, and allowed the same to become warmer or
colder than that stipulated, and placed the goods in a damp, wet
room, but that neither of said matters was the cause of the
damage to the stored goods of plaintiff, if you find they were
damaged when returned, then plaintiff can not recover. The
plaintiff can not recover for any alleged damages which are not
the direct consequence of some act or omission upon the part of
defendant complained of.
The mere fact that the temperature may have fallen below that
stipulated for, or went above the same, nor the fact that the
room was damp and wet, if you find such to be the facts, would
not of themselves warrant a verdict against defendant, unless
you further find that such act or omission was the proximate
cause of the damages complained of, if you find there was such
damage.
It is the claim of defendant that plaintiff negligently allowed
the horse radish to remain in storage after discovery by him of
its decaying condition.
If you find from the evidence that plaintiff discovered any
considerable time before removing same from storage, that the
horse radish was in a decaying and wasting condition, it was his
duty under such circumstances to use diligent efforts on his part
to avoid such further damage from any alleged breach of con-
BAILMENTS.
1227
tract by the defendant company; and his failure to use reason-
able care on his part to avoid further damage as would probably
result from any alleged act of the defendant, if you find sucli to
be the fact, it will prevent a recovery by him for any damages
which may have occurred after such discovery and knowledge
which might have been prevented by such reasonable effort on
his part.^
1 Becker v. The Crystal lee Mfg. & Cold Storage Co., Common Pleas
Court, Franklin Co., O., Rathmel, J.
Sec. 1545. Liability of garage keeper for safety of automobile
intrusted to him.
The jury is instructed that a person who operates a garage
and who holds himself out to the public as being willing to
receive, keep and store automobiles for hire is to be considered
as a bailee for hire ; that as such bailee the law imposes a duty
upon him to exercise reasonable or ordinary care in the matter
of the care and custody of automobiles entrusted to his care by
a patron. In no sense is he to be regarded as an insurer of the
safety of or against the loss of such machine. The measure of
care called for under the circumstances is such care as men, in
general, bestow upon their own property similarly situated, the
contract involving an understanding that the bailee may use the
usual means for the protection of the property. That is, he is
bound to use ordinary care in the selection of his agents, as well
as in retaining them in his employ.
It follows that if an automobile so placed in the custody of a
proprietor of a garage keeper for storage and repairs, which is
injured or destroyed by the negligence of the garage keeper or
his servants while acting within the scope of their authority,
such garage proprietor is liable to the owner of the automobile
therefor.^
1 Fireman's Fund Ins. Co. v. Rcliroiber, l.-SO Wis. 42, Ur^ N. W. mi,
American Ann. Cases, lOl.S, E; Roberts v. Kiuley, 80 Kan. 885,
132 Pac. 1180; Wilson v. Wyckoff, \:V.\ App. Div. !)2. afTd. 200
N. Y. 561.
1228 INSTRUCTIONS TO JURY.
Sec. 1546. Proprietor of garage bound to exercise supervision
over employees to guard against wrongful
taking out of stored auto.
The jury is instructed that a proprietor of a garage owes a
duty towards a person who delivers an automobile to him for
storage and repair to exercise reasonable or ordinary supervision
over his servants or employees ; and if he has notice or knowledge
that an employee is possessed of proclivities rendering it likely
that he would injure the property of others so delivered, it is
his duty to exercise ordinary care to protect the same from,
danger of injury to which it may thus be subject.
If such proprietor has knowledge of the proclivity or habit of
an employee to take machines out without authority or justifica-
tion, he should not be allowed to thus subject the property of
his innocent customers to the danger of loss by failure to observe
ordinary care and usual precautions to prevent damage by his
dissolute or reckless employees.
It follows, therefore, if the garage proprietor fails to use ordi-
nary and reasonable care by a method or system to prevent em-
ployees from taking the machines* of a customer without authority,
and an employee does so take the automobile of a customer of the
garage without authority who injures the same while it is so
in his wrongful possession, the proprietor wall be responsible
therefor.^
1 Evans v. Dyke Auto Supply Co., 121 Mo. 2G6, 101 S. W. 1132; Hughes
Sons Co. V. Bergin Auto Co., 75 N. .1. L. 3-55, 67 Atl. 1018. Am.
Ann. Cases, 1013, E, note.
Sec. 1547. Liability of garage keeper for allowing customer's
automobile to be taken out without authority.
The jury is instructed that where it is made to appear that an
automobile garage keeper allows an employee to take out and
drive the car of his customer who has stored it with such keeper,
without the consent or authority of such customer, it is not
essential to fix the liability of such keeper that it be shown that
the auto was injured by the negligence of such employe. On
BAIIxMENTS. 1229
the contrary, proof of an injury to the car while so in the wrong-
ful and unauthorized possession of such employee constitutes a
prima facie case of liability on tne part of such garage keeper,
such liability being fixed by his own neglect in allowing the
machine to go out of his possession.^
1 Wilson V. Wyckoff, 133 App. Div. 92, 117 N. Y. S. 783, 200 N. Y. 561,
93 N. E. 1135.
CHAPTER LXXYI.
BANKS— BANK DEPOSITS— BANK CHECKS.
SEC. SEC.
1548. Cashier authorized to receive 1551. Relation of bank directors to
deposits — Authority of public — Liability for de-
president to do so by faulting officers,
custom or usage. 1552. Liability of drawer of check.
1549. Measure of care required of 1553. The nature of a check — Rules
directors of bank in re- r^ulating rights and lia-
spect to acts of officers. bilities of parties thereto.
1550. Bank estopped to deny au-
thority of officers.
Sec. 1548. Cashier authorized to receive deposits — Authority
of president to do so by custom or usage.
The president of a national bank does not, under and by virtue
of the act of Congress establishing and governing national banks,
nor under the general rules of law applicable to banks and bank-
ing, by virtue of his said office of president, have power and
authority to execute and issue certificates of deposit of said
bank, and the certificate so issued by him does not, by reason of
the fact that it bears his name as president, bind such bank.
The only officer of a bank who, by virtue of his office, has au-
thority to receive deposits offered to a bank, and to bind the
bank by his certificate therefor, is the duly elected and acting
cashier. But the president may be authorized expressly, or by
custom or usage in the conduct of the business of said bank, to
transact any or all the duties devolving upon the cashier by
virtue of his, the cashier's, office. It is competent for the board
of directors to clothe the president with the authority and power
to receive deposits and bind the bank by his official signature as
president to certificates of deposit as effectually as the cashier
may do. It is not required that this authority to the president
be conferred by any express or formal action by the directors,
1230
BANKS BANK DEPOSITS BANK CHECKS. 1231
but it may be implied from circumstances, or a long uniform
course of delay on the part of the bank. If the president in his
capacity as president has been in the habit of receiving deposits
and issuing certificates therefor, Avhich habit has existed for a
considerable length of time, and the directors, or a majority of
them, for a long time knew of such habit, making no objections
thereto, then an authority from them to the president to do such
acts may be presumed, and if these acts were frequent, long
continued, open and notorious, the knowledge of the directors
may reasonably be presumed.^
1 Newby, J., in Carlisle Barrere i;. The Citizens Natl. Bank of Hillsboro of
Highland Co. Com. Pleas;. See similar charge, Brickwood Sack.
Insts., sec. 571 ; Rankin v. Bank, 188 U. S. 557.
Sec. 1549. Measure of care required of directors of bank, in
respect to acts of its officers.
It is the dut^ of the board of directors of a bank to give such
attention to its business as will enable them to become acquainted
with and know the manner in which the business of the bank is
being conducted, and to ascertain whether any officers constituted
or appointed by them are disregarding or exceeding the author-
ity intrusted to them by the board; and if the directors, in a
careful and prudent discharge of their duties in this behalf, and
by the employment of an ordinary amount of care therein, could
or might have discovered that their president was usurping the
functions of the cashier to the extent of receiving deposits and
issuing certificates of the bank therefor, they will be charged in
law with such knowledge as they could have thus obtained, and
their silence and failure to object under such circumstances,
would in law amount to an authority from the directors to the
president to do the acts he assumed to perform in that regard,
and to bind the bank therefor.^
1 Newby, J., in Barrere v. Citizens Natl. Bank, Highland Co. C. P.; Morse
on Banks, sees. 125, 128.
Directors of national bank, under rule of ordinary care required of them,
liable personally for the mismanagement or misfeasance of former
directors under what circumstances. Glass v. Courtright, 14 N. P.
(N.S.) 273.
1232 INSTRUCTIONS TO JURY,
Sec. 1550. Bank estopped to deny authority of oflBcers.
And if the directors of a bank, or a majority of them, without
objection or protest on their part, suffer and permit the presi-
dent without authority expressly conferred, to exercise the duties
of the cashier in the receipt of deposits and issuances of certifi-
cates of the bank to an extent that would justify a person with
ordinary prudence and caution dealing with the bank, in the
reasonable belief that the president had the proper authority
from the directors to receive money and to perform the functions
of tihe cashier, and if parties dealing with the president in good
faith rely upon the appearances thus created, the bank will be
estopped to deny that their president possessed the authority
apparently possessed by him. But he must have relied in good
faith upon such appearances, and if he knew that the president
was exceding his authority, or if he was in possession of knowl-
edge of facts or circumstances which would arouse the suspicion
of a man of ordinary intelligence and caution as to whether the
president was dealing for the bank within the scope of his
authority, under such circumstances, he would not be justified
in relying upon such appearances, although but for such knowl-
edge on his part he would be protected.^
1 Newby, J., in Barrere v. Citizens' Natl. Bank, Highland Co. Com. PI.
Sec. 1551. Relation of bank directors to public — Liability for
defaulting officers.
The directors of a national bank are guarantors to the public
of the fidelity and integrity of the officers and agents selected by
them for the management of the business of the bank, while those
officers and agents may be acting within a reasonable scope of
their duties as such officers. Wliere, therefore, there has been a
misappropriation or embezzlement by an officer of a bank of a
deposit received by such officer from a depositor for the bank
by its authority, the loss will fall upon the bank and not upon
the depositor. If an officer of the bank, therefore, be authorized
by the board of directors, either expressly or impliedly by their
BANKS — BANK DEPOSITS — BANK CHECKS. 1233
acts, to receive deposits for the bank and issue certificates there-
for ; and if the plaintiff at the bank and in the usual course of
business delivered to such officer to be deposited in the bank,
money which the officer received and issued certificates therefor
in the money of the bank, then the plaintiff is entitled to recover
from the bank the amount so deposited.^
1 Newby, J., in Barrere t\ Citizens' Xatl. Bank, Higliland Co. Com. PI.
Sec. 1552. Liability of drawer of check.
To render the drawer of a check liable to the holder, it will b©
sufficient if a demand upon the bank has been made, at the bank,
during the usual hours of business, and notice of non-payment
given to the drawer at any time before suit is ])r<)ught against
him thereon, unless it appear that the bank has failed during the
delay of presentation, or the drawer has in some other manner
sustained injury by the delay of the demand, or delay of notice
of non-payment.^
1 Frey v. Gragg, Supreme Court, unreported.
Sec. 1553. The nature of a check — Rules regulating rights
and liabilities of parties thereto
You are instructed that a check is a draft or order, drawn for
the immediate payment of money, and that they are of such
common use as to answer as payment for considerable amounts
of money. Certain usages have grown up peculiar to this class
of instruments, which have become engrafted on the commercial
law of the land. A check is drawn upon an existing fund, and
is an absolute transfer or appropriation to the holder, of so much
money in the hands of the drawee. The drawer of a check is
the principal debtor, and one who places his name on the back
is an endorser. As. between the holder or payee of a check and
an endorser, demand of payment within the time due is essential
to the liability of such endorser. Where the parties reside in
the same place, the holder should present the check on the day
it is received, or within business hours of the following day.
1234 INSTRUCTIONS TO JURY.
Mere delay in presenting a check in due time for payment does
not discharge the drawer, unless he has been injured thereby,
and then only to the extent of his loss. A check does not have
to be accepted, and when presented it is for payment, and is
payable when presentation and demand is made.^
1 Morrison v. Bailey, 5 O. S. 13 ; Kinkead's Code Pldg., sec. 289.
CHAPTER LXXVII.
BASTARDY.
SEC.
SEC.
1554.
Bastardy — Instructions.
1. Statement of issues.
2. Burden of proof — Degree
of evidence.
3. Credibility of witnesses.
4. Verdict by jury.
ir)5;l
155()
Reputation of prosecutrix
for truth and veracity.
Reputation of defendant for
virtue and chastity.
Sec. 1554. Bastardy — Instructions.
1. Statement of issues.
2. Burden of proof — Degree of evidence.
3. Credibility of witnesses.
4. Verdict by jury.
1. Statement of issues. The defendant in this case is charged
by the prosecutrix, E. H., by her complaint in bastardy, that
she, being unmarried, was delivered of a bastard child on the
day of , and that the defendant is the father of
such child.
To this charge the defendant has pleaded not guilty, and thus
the issue is made up for you to determine upon the evidence,
under the charge of the court, the guilt or innocence of the de-
fendant of the charge made against him.
2. Burden of proof — Degree of evidence. The burden of proof
is upon the relator, or the prosecutrix, to make out her complaint
and charge by the proper degree of evidence, which the court
will explain to you.
While this proceeding is in a sense quasi criminal in its nature,
the statutory remedy provided by law in bastardy is not neces-
sarily in the interest or for the benefit of the prosecutrix, but
the object and purpose is to protect the state and tlie county
against the possible necessity of the care of any child that may
be illegitimate. The jury is governed by the same degree of
1235
1236 INSTRUCTIONS TO JURY.
evidence as in civil cases. Tlie burden of proof is upon the
prosecutrix to establish her charge against the defendant by a
preponderance of the evidence.
You should not guess or act upon conjecture, but act only
upon the sworn testimony of witnesses. Neither should you act
in this matter upon any views you may have concerning this
kind of a case which are not founded upon or supported by the
evidence, nor should you be moved by sympathy.
In the ti-ial of an issue of fact the jury are not expected to
arrive at a degree of absolute certainty, but may under the law
act upon probabilities.
A preponderance of the evidence means the greater weight
thereof. If it is evenly balanced between the parties, or if it
does not preponderate in favor of the prosecutrix on any of
the material elements, it will be your duty to find the defendant
not guilty; but if the evidence is greater, or preponderates in
favor of the prosecutrix, then it will be your duty to find the
defendant guilty.
3. Crcdihility of mtnesses. The jury are the sole judges of
the credibility of the witnesses; it seems needless for the court
to point out the various tests that may be resorted to by the
jury. But in cases where the testimony is conflicting, and where
it may be evenly balanced upon any material part so far as the
first knowledge of any aifair like this is concerned, the jury may
resort to any corroborative circumstances or facts as they have
appeared to you, or as they may appear in the evidence, in de-
termining what weight or what credibility you will place upon the
testimony of the parties in this case. You may consider the tes-
timony of disinterested persons as to any material matter that
may have been testified to by any of the interested parties —
interested in the sense of being parties to the action. You may
consider the question of the interest of the immediate parties in
weighing their testimony, in connection with all of the other
facts and circumstances shown by the evidence.
4. Verddct hy jury. It must be shown by the relator that she
was an unmarried woman ; that she was delivered of a bastard
BASTABDY. 1237
child on ; and that the defendant was the father of the
child.
If you find by a preponderance of the evidence that the pros-
ecutrix -was unmarried, that she was delivered of a bastard child,
and that defendant was the father of the child, then your ver-
dict should be for the relator, the prosecutrix. But if, on the
other hand, you find that defendant was not the father of the
child, then it would be your duty to find the defendant not
guilty. Your verdict should be one either of guilty or not
guilty. The jury are not concerned Avith the judgment to be
entered upon the verdict. You simply are to say whether de-
fendant is guilty or not guilty. If your verdict should be one
of guilty, the court then determines what judgment should be
pronounced on that verdict. If your verdict should be one of
not guilty, the court then enters up a dismissal of the caae.^
1 State V. O., Franklin Co. Com. V].. Kinkead, J.
Sec. 1555. Reputation of prosecutrix for truth and veracity.
Evidence has been offered for the purpose of impeaching the
reputation of the prosecutrix here for truth and veracity. The
reputation of a person for truth and veracity is determined by
what people say of such person, or what they do not say. If
you should be of the opinion after a consideration of all the
evidence that the prosecutrix has been, in your judgment, im-
peached for truth and veracity, you are at liberty then to
believe or disbelieve her testimony. Even though you may be
of the opinion that she has been successfully impeached, you
are not bound because of that fact to discredit her testimony.
You may or you may not, as in your best judgment you deem
proper, believe or disbelieve her testimony, without regard to
the testimony offered as to her reputation for truth and veracity.
Sec. 1556. Reputation of defendant for virtue and chastity.
Evidence has been offered concerning the reputation of the
defendant for virtue and chastity. Tlie jury is instructed that
such evidence is competent in favor of a party charged with
bastardy, as tending to show that he would or would not be
1238 INSTRUCTIONS TO JURY,
likely to commit the act charged against him. If you find in thia
case from the evidence that prior to the alleged commission of
the act charged against the defendant that he bore a good
reputation for virtue and chastity among his neighbors and in
the neighborhood where he lived, then this is a fact proper to
be considered by you along with all the other evidence in the
case, in determining the question of the defendant's guilt or
innocence of the charge made against him. However, if from
all the evidence in the case, including the evidence of the de-
fendant's good reputation for chastity and virtue, you deter-
mine by a preponderance thereof that defendant is guilty as
charged in the indictment, it will be your duty to so find by
your verdict, notwithstanding the fact that theretofore the ac-
cused had borne a good reputation for virtue and chastity.
CHAPTER LXVIII.
BIGAMY.
1557. Bigamy refined — The statute. 1559. Common law marriage jiot
1558. Remarriage of wife before basis for prosecution for
seven years absence of bigamy.
husband, without divorce. 1560. Domicile of divorced parties.
Sec. 1557. Bigamy — Defined — The statute.
The statute of Oliio provides : Whoever, having a husband or
wife, marries another, is guilty of bigamy. But this does not
extend to any person whose husband or wife has been continu-
ally absent for five successive years next before such marriage,
without being known to such person to be living within that time.
1. Gist of offense. The gist of the offense consists in going
through the ceremony of a second marriage, which involves an
outrage on public decency and morals, and creates a scandal by
the prostitution of a solemn ceremony. The second marriage,
if contracted in such form and manner that it would be binding
upon the parties if they w^ere legally competent, is sufficient to
render one guilty of the crime of bigamy.^
1 Code, sec. 13022. Whether or not tlie liusband or wife has so been
continualh' absent without being known to the person to be living
is matter of defense to be proved by the defendant. Stanglein v.
State, 17 0. S. 453.
Sec. 1558. Remarriage of wife before seven years absence of
husband, without divorce.
Where a husband has disappeared, and his wife marries again
before the expiration of seven years without having obtained a
divorce, she would be guilty if it should appear that her husband
was alive at the time of her marriage.*
1 Supreme Com., etc., v. Everding, 20 C. C. 689.
1239
1240 INSTRUCTIONS TO JURY.
Sec. 1559. Common law marriage not basis for prosecution
for bigamy.
The fact that a man and woman cohabit together and make
acknowledgment of the relation of marriage existing between
them, but who have not been married according to the statute,
does not constitute such marriage as to render a marriage by
one of such parties to another after having broken off the former
illicit relation.^
1 Bates V. State, 9 C. C. (X.S.) 273.
Sec. 1560. Domicile of divorced parties.
' ' If neither the husband nor wife was domiciled in the foreign
state when the action for divorce was instituted or prosecuted,
but both were then domiciled in Ohio, the decree of the court in
the foreign state was void or inoperative beyond the limits of
that state. ' ' ^
1 From Van Fassen v. State, 37 0. S. 317.
CHAPTER LXXIX.
BILLS AND NOTES.
SEC.
1561.
1562.
1563.
1564.
1565.
1566.
1567.
SEC.
Burden of proof when con- 1568.
sideration attacked.
Genuineness of signature.
Purchase before maturity 1569.
without notice of illegal
consideration.
Consideration — Delivery —
Denial of execution — Al- 1570.
teration — Expert testi-
mony as to signature. 1571.
Transfer of note after ma-
turity. 1572.
Endorsement in bank —
Transfer before maturity. 1573.
Liability of surety on note — 1574.
How revived — EfTect of
subsequent promise. 1575.
Execution of note — Consider-
ation — Payment of inter-
est in advance.
Alteration of note — What
constitutes — Adding
words "with interest at
— per cent."
Alteration by adding name
of third person.
Alteration by inserting words
"to be paid annually."
Demand and notice essential
to hold endorser.
Endorsement of note — Notice.
When maker of note entitled
to demand.
Forgery as a defense — Estop-
pel to set up.
Sec. 1561. Burden of proof when consideration attacked.
The jury is instructed that where in an action upon a promis-
sory note the defense is that the note was given or obtained
without a vahiable consideration, the plaintiff lias the affirmative
of the issue, and the burden of proof rests upon him to show a
consideration for the note, by a preponderance of the whole of
the evidence adduced on the trial. ^
iGinn v. Dolan, 81 O. S. 121. This is the rule adopted in this case, but
see discussion at ante, sec. 529, where burden of proof and weight
of evidence is distinguished.
Sec. 1562. Genuineness of signature.
There have been offered in evidence fifty signatures of J. N.,
which signatures are admitted by both parties to be tbe genuine
signatures of J. N. For the purpose of comparing tliese signa-
1241
1242 INSTRUCTIONS TO JURY.
tures, they have been marked Exhibits 1 to 50, for the purpose
of allowing you to compare the signatures with the note in suit
with the admitted genuine signatures of J. N., to aid you in
connection with the other testimony in determining whether the
signature of J. N. to the note in suit is the genuine signature
of J. N. The note in suit and the admitted genuine signatures
of J. N. will be before you in the jury room for the purpose of
allowing you to compare the name of J. N. on the note in suit with
the admitted signatures. Witnesses have been called by both
parties to express their opinions as to whether the name of
J. N., attached to the note in suit, is genuine or not. These
several witnesses have expressed their opinion before you upon
that question. You are instructed that the opinion of such
witnesses are competent, and may be considered. The weight
to be given such testimony is entirely for you to determine.
Their testimony may be given more or less weight by you in
proportion as you believe the reasons which the witnesses give
for their opinions to be strong or weak — as their reasons appear
satisfactory or unsatisfactory to you. You are the sole judges
of the weight to be given to the testimony of such witnesses,
and of their credibility.^
1 Nye, J., in Ingersol v. Gafkey, Summit Co. Com. PI.
Sec. 1563. Purchase before maturity without notice of illegal
consideration.
If the purchaser pays cash for a note, he acquires it in the
usual course of trade for valuable consideration. Before
maturity is before a note, by its terms, is due and payable.
Therefore, if you find that the plaintiff paid a cash sum for
the note, before maturity, to a person authorized to sell it, and
obtained the note, the note being payable to bearer, might pass
by delivery; but the transfer is not defeated or affected by the
endorsement of the payee, and the plaintiff would then have
acquired it in the usual course of trade for a valuable considera-
tion, and would be entitled to recover thereon, unless it appears
from the evidence that he had, at the time, notice of the alleged
BILLS AND NOTES. 124S
considerations, already stated and claimed to be in the note,
or that he liad information which ought to have excited the
suspicion of a reasonable man thereto, and having the op-
portunity, failed and neglected, or refused to inquire thereto,
because he was afraid he would thereby learn what he did not
want to know. It is not sufficient, if it only appears that he
took the note under circumstances that ought to have excited
suspicion in the mind of a prudent and reasonable man; but it
must appear that he took the note under circumstances as show
he acted in bad faith or with a want of honesty, and in deter-
mining whether he so acted, you will look to all the circumstances
and the evidence of the fact, if proved, as claimed, that he paid
less than its fair and reasonable value for the note.
If under all the circumstances, you find the plaintiff acquired
and holds the note by purchase in good faith, in the usual course
of trade for a valuable consideration before due, without notice
of such infirmities, your verdict will be in his favor for ,
with six per cent, interest to this date. Add together the sum
so found, that is, the interest and principal, and the whole
amount will be his damages.
If you find that the note was given for seed wheat at fifteen
dollars per bushel and that such seed wheat proved worthless
as such, then your verdict would be in favor of defendant, pro-
\ided you further find that the plaintiff had notice of the worth-
less character of the wheat and of such consideration, or had
such notice as to put him on inquiry to you.
1 Nye, J., in Ingersol v. Gafkey, Summit Co. Com. PI.
Sec. 1564. Consideration — Delivery — Denial of execution —
Alteration — Expert testimony as to signature.
A promissory note implies a consideration. It is not valid
unless delivered by the defendant to the plaintiff, though, if
you find the note in the hands of the plaintiff*, duly executed
by the defendant, you may then presume tliat it was delivered.
Upon the question of the execution of the note the burden of
proof is on the plaintiff, and he must establish by a preponder-
1244 INSTRUCTIONS TO JURY.
ance of evidence that the defendant did sign the note. If he
fails to thus prove the fact, your verdict should be for the
defendant. Upon this question you can take into consideration
the testimony of the experts, persons who by their experience
in the comparison and obsei'vation of handwriting, are permitted
to give their opinion whether the signature to the note in
question is by the same hand as the signature to the deed and
will, which have been proven to be the genuine signatures of
the defendant With these opinions and the other evidence in
the case, you are to say whether the same hand wrote all signa-
tures. You are to determine the weight of the testimony of
these experts. If you determine that they are right in their
opinions, your verdict should be for the defendant.
(a) Alterations in date. If you do so find you should then
consider the question of alterations. These alterations, as
claimed by defendant, are in the change of the date from an
early to a later date, and in the body of the note a change in
the principal. If these changes were made they are material
changes, and if the plaintiff, without the consent of the defend-
ant, made the alterations after the note was delivered, he has no
right of action on this note. Has the note been altered? The
figures at the left-hand top of the note are no part of the note,
and a change in these figures is not material, but you may look
at any alterations in those figures upon the question whether
there was any alteration of the date or amount in the body of
the note. Still, the question is, have any alterations been made ?
Upon this question the burden of proof is on the defendant
to prove that these claimed alterations were made after it was
signed. You may look at the note to see whether any alterations
have been made in either particular. If you find that there is
no alteration, assuming that the signature of the note is the
genuine one of the defendant, your verdict will be for plaintiff.
If the note was alte«-ed, and the burden of proof of that, as was
said, is on the defendant, you will then inquire whether the
alteration was before or after the defendant signed the note.
If you find it was altered after defendant signed the note, the
BILLS AND NOTES. 1245
burden of proof will tlien be upon the plaintiff to prove that
it was altered with the consent of the defendant.
If the note was signed after it was altered, it is a good note.
If it was signed before it was altered and the maker consented
to the alteration, it is a good note.^
1 Franklin r. Baker. Ex'r, 48 0. S. 296.
Sec. 1565. Transfer of note after maturity.
The jury is instructed that if the paper was transferred after
it became due, and it no longer has the character of commercial
paper before due, if it was transferred after it was due, the
person to whom it was transferred steps simply into the shoes
of the person that transfers it to him, and the maker of the
paper can then urge against him, if he sues upon the paper, the
same claim, the same suit, that he could make against the person
to whom he originally gave the paper if he sued upon it.^
1 Solders, J., in Piatt v. Hazzard, Sup. Ct., unreported.
Sec. 1566. Endorsement in blank — Transfer before maturity.
This note is payable to the order of J. W., T. H. gives him
that note ; there is nothing upon the face of the note to indicate
any contract made at the time. It places it within the power of
T. to transfer the note to anybody. He has signed his name
upon the back of the note and nothing more, which is known
as a blank endorsement, and that authorizes any person to whom
he transfers it to write above it a transfer to him, or a transfer
to some other person. In other words, this is not a restrictive
endorsement ; that is to say, a restrictive endorsement would be
to a particular person only. The note is not given to T.
individually, but it is given to him with the power of transferring
it to anybody. The law makes that paper circulate as money
before due. If action had been brought upon tlie paper by T.,
then ]\Ir. II. could offset against him anytliing, any demand that
he has against him, and especially could he offset this $925.00,
as the testimony indicates was due, and which the plaintiff doesi
not controvert. If that contract was made at all he could offset
this against this note. If paper, commercial paper, which this
1246 INSTRUCTIONS TO JURY.
is, is transferred before due to another person, who at the time
pays value for it, such person holds the paper free from all
claims and set-offs — and in that connection I wish to say to you
that this man P. stands upon this paper as an endorsee, holding
the paper. That where the endorsee of negotiable paper pays
cash therefor he is a purchaser in the usual course of trade,
unless the fact was that he paid for the note a sum less than the
fair and actual value — not necessarily that he should pay the
actual value, that is a matter of agreement — but if it is trans-
ferred before due, for value paid, there being no bad faith, or
want of honesty at the time on the part of the person to whom
transferred, he takes it clear from any claim that the maker of
the note could urge against the person to whom he originally
gave it, in this case T.^
"You are instructed that where a note has been endorsed in
blank, the holder of the same may fill the blank with the name
of the endorsee ; that the endorsement of the note is said to be
in blank when the name of the endorser is simply written on the
back of the note, leaving a blank over it for the insertion of the
name of the endorsee, or of any subsequent holder; and that in
such a case while the endorsement continues blank, the note
may be passed by mere delivery, and the endorsee or other
holder is understood to have full authority personally to demand
payment of it, or make it payable at his pleasure, to himself or
to another person. ' ' -
1 Solders, J., in Piatt r. Hazzard, Sup. Ct., unreported.
2 From Palmer v. Marshall, 60 111. 292.
Sec. 1567. Liability of surety on note — How revived — Effect
of subsequent promise.
' ' If the defendant 's testator, having been discharged from his
liability as surety upon the note sued on, with a full knowledge
and understanding of his release as surety, promised the holder
or payee to pay the note, if the principal did not, he thereby
revived his liability as surety, and such subsequent promise was
binding without any new consideration to support it. " ^
1 Bramble v. Ward, 40 O. S. 267.
BILLS AND NOTES. 1247
Sec. 1568. Extension of note — Consideration — Payment of in-
terest in advance.
' ' The payment of interest in advance is not of itself conclusive
of a contract to extend the time of the payment for the term
for which interest may have thus been paid, but it is a strong
circumstance to be looked to by the jury in determining the
existence of the contract claimed." ^
1 Card r. Xeff. 39 O. S. 607.
Sec. 1569. Alteration of note — What constitutes — ^Adding
words "with interest at per cent."
If you find from the evidence that after the defendant signed
a note similar in all respects to the one sued on, excepting that
the written words, "with interest at ten per cent.," and that
these w^ords were not then in the note, but that the printed
words, "with interest at ten per cent, per annum after ma-
turity," were in the note, and that, after the defendant placed
his signature thereon, and without his knowledge or consent, the
said printed words were stricken out and the said written words
inserted, and that .such an alteration of the note was made by
any holder of the note, without the knowledge of the defendant,
it would be a material alteration, and would release him from
all liability on the note. And if the defendant proves this by
a preponderance of the evidence, the verdict must be in his
favor; and it would make no difference whether J., the plaintiff,
Avas or was not the owner of the note at the time of the alter-
ation after the defendant signed it.^
1 Brooks V. Allen, 62 Ind. 401.
Sec. 1570. Alteration — By adding name of third person —
Whether material or not.
The jury is instructed that if tliore was a material alteration
of the note after its execution and delivery, with the consent
of its holder, but without the knowledge or consent of K., such
material alteration would discharge K. from any liability on
the note. An alteration to be material must be of the note after
1248 INSTRUCTIONS TO JURY.
it is signed and delivered, without the consent of the person
who executed it. The court has stated the rule when there is
a material alteration of the note, with tiie consent of its holder,
and without the knowledge, procuration, or consent of the
maker, it releases the maker of the note. The addition of the
name of a third person as maker, with the privity of the holder,
but without the consent of the original signer, is a material
alteration of the note, which discharges such original signer.
This would not be so, however, if the third person signed the
note as an apparent maker through inadvertence or mistake
as to any fact. In this case it is not claimed by S. that there
was any mistake as to any fact relative to or connected with
the signing of his name on the note. He claims in his testimony
that he signed the note for the single purpose of vouching that
K. was worth about $3,000, but if there was no inadvertence or
mistake of fact in his signing, he can not dispute or vary the
written contract above his name which he signed. Wlien he
signed this paper (the note) his contract was in writing, and
he will not be permitted to dispute it, unless he can show that
there was some inadvertence or mistake as to some fact. Having
signed the note on its face as an apparent maker, for a valuable
consideration, he must be held to sustain to the note the relation
of maker, unless he can show that there was some inadvertence
or mistake of fact relative to or connected with such signing.
A mistake of law does not excuse him. Every person is pre-
sumed to know the law, and he is not permitted to say he did
not understand the legal effect of his act. Before signing his
name Mr. S. was what is called a "stranger" to the note. He
would have been prima facie a guarantor of the note if he had
placed his name on the back of it, in that case there would be a
presumption that he was a guarantor. But, being a stranger to
the note, and signing it on its face, signing the written contract,
the written contract must be held to govern, unless he shows
that there was some mistake of fact, not of law, in such signing.
No one pretends to say that he didn't read the contract. No one
pretends to say he meant to sign it any place but where he did
sign it. If you find that the defendant, S., for a valuable con-
BILLS AND NOTES. 1249
sideration, signed the note as maker, he is liable on the same,
unless he can show some legal reason why he should not pay it.^
1 Price, J., in Smucker v. Wright, Sup. Ct., unreported.
Sec. 1571. Alteration by inserting words "to be paid an-
nuaUy."
The defendants claim that after the note described in the
petition was executed by said M., and Avithout the consent or
knowledge of either of them, the plaintiff altered said note by
inserting or causing to be inserted in said note the words "to
be paid annually" after the word interest. Thus by said alter-
ation changing the terms of said note, making the interest pay-
able annually instead of being payable when the note became
due, and that they have never since ratified said alteration.
Such alteration, if made as claimed by defendants, would be
a material alteration, changing the eft'ect and operation of said
note, and upon said note in such case the plaintiflf could not
recover in this action, unless said alteration has been ratified
by the defendants, or by one of them.
That such alteration was made as claimed the defendants
must prove by a preponderance of the evidence.
Such alteration, if made by a party not interested in the
note, and without the knowledge or consent of plaintiff would
not affect the note.
If such alteration of the note was made by plaintiff, a.s
claimed, and if aftenvard the defendants, or either of them,
with full knowledge of such alteration, ratified the same by
part payment, or by direct and unconditional promises to pay
said note, then said defendants, or whichever of them so ratified
such alteration, would be liable on said note as altered, and
against the defendant who ratified said alteration the plaintiff'
can recover. Such ratification must be proved by the plaintiff
by a preponderance of the evidence.^
1 Miller v. Vollrath, Sup. Ct., No. 1728. Judgnifiits of lower courts
affirmed, 27 W. L. B. ?At. Alteration by a stranger does not
vitiate, Waring v. Smyth, 2 Barb. Ch. 119; Bank v. Roberts. 4.'>
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<i in the indictment, the jury may be
justified in the presumption that it was done maliciously.
1324 INSTRUCTIONS TO JURY.
Sec. 1607. Breaking and entering.
The court will instruct the jury concerning the legal meaning
of the terms to break and enter the dwelling house. No par-
ticular degree or amount of force is required to constitute a
breaking within the meaning of the statute. The law is satisfied
with any force, however slight, that may be used in entering the
dwelling house, the opening of a door, whether locked or un-
locked, the mere lifting of a latch, or breaking a lock, or using
a key in the lock, or any kind of breaking necessary to gain
entrance may be considered a sufficient breaking within the
law. The breaking must not only be forcibly, but it must precede
the entry.
[In order to find that there was a breaking, you must find
that a door was opened or a window was raised through which
defendant entered. If the door was opened, and defendant
merely passed through an open door, it does not constitute a
breaking \\athin the law.] ^
1. The entry. There must be an entering of the person or
some part of the body of the person charged with the crime, in
order that he may be guilty of burglary.
Before the defendant may be found guilty of burglary of an
[uninhabited or inhabited] dwelling house in the night season
as charged, the jury must find that he did maliciously and
forcibly break and enter, in the manner as explained to you, the
dwelling house of on or about .
iTimmons v. State, 34 O. S. 426; Ducher v. State, 18 O. 308. Pushing
open a closed, unfastened transom. Timmons v. State, supra. Code,
sec. 12438. Box car partially open. State v. Long, 5 0. D. (N.P.)
617. If car is fastened by a cleat or hasp, and sealed, there is a
breaking. State v. Long, 5 O. D. (N.P.) 617.
Sec. 1608. Burglary of inhabited dwelling house.
In order to find the defendant guilty, the jury must be
satisfied from the evidence that the defendant did maliciously
break and enter an inhabited dwelling house, that is, you must
find that the house as alleged in the indictment was a dwelling
house, that is, a house used for the purpose of a home, or a place
BURGLARY. 1325
to live, and that it was at the time of the breaking and entering,
inhabited, that it was occupied by persons living in it, who were
occupying it as a home.
Sec. 1609. Must be in night time.
It is necessary that both the breaking and the entering should
be done in the night time. It is night in the sense of the law
when there is not daylight enough left or begun to discern a
man's face. Again night is defined as being: "That space of
time during which the sun is below the horizon of the earth,
during which by its light the countenance of a man can not be
discerned." Night season consists of the period of time from
the termination of daylight in the evening to the earliest dawn
in the morning.
Then you are instructed that the night season is that period
of time after the sun goes down at evening and before it rises
in the morning, when it is so dark that a person's face can not
be discerned by the daylight. It was necessary, therefore, tliat
the offense must have been committed in the night season to
commit a burglary.^
1 Nye, J., in State v. Kemp, Lorain Co. Com. PI. State v. Walshenberg,
7 X. P. 219; State v. Gundersons (Wash.), 21 Am. Ann. Cas. 350.
Nighttime by common law begins when daylight ends, or when the
countenance ceases to be reasonably discernible, and CTids at earliest
dawn, or as soon as tiie countenance becomes discernible. Chirk's
Or. Law, 237; People v. Griflin, 10 Cal. r)78; State v. Bancroft, 10
N. H. 105. "The jury must determine this question indLpemk'ntly
of a capricious test." Whart. Cr. PI. and Pr., sec. 1612; J^ewis v.
State, 16 Conn. 32. The nighttime may be shown by circumstan-
tial evidence. State v. Bancroft, 10 N. H. 105.
Sec. 1610. Intent to steal.
It is not necessary to constitute ])urglary, that the accused
should actually have stolen any property; it is sufficient if the
breaking and entering was made with the specifie intent to steal.
The term steal, means in legal contemplation, the wrongful
and fraudulent taking of property of another, of some intrinsic
or substantial value, without his assent, and with the intent to
1326 INSTRUCTIONS TO JURY.
deprive tlie owner thereof permanently.^ Direct evidence is
not necessary to prove intent ; it may be proved by facts and
circumstances. The intent may be inferred or presumed from
the unlawful act of breakin; and entering.
1 State V. WalsheBberg, 7 N, P. 219.
Sec. 1611. Intent to steal from railroad car.
The fourth thing that is necessary to constitute the offense of
burglary is that the breaking and entering must have been done
with an intent to steal the personal property of some value of
the C. C. C. & St. L. R. R. Co., situated in said car. It is not
necessary that anything be actually stolen. The offense is
complete under the statute if the defendant broke and entered
the car named in the indictment, in the night, forcibly and
maliciously with the intent to steal property of some value
situated in the car of the said railroad company. But direct
and positive testimony is not necessary to prove the intent. It
may be proved by facts and circumstances. If you find from
the evidence that the property was stolen from the car by the
defendants, you may consider that fact in determining with what
intent the defendants entered the car, if you find they entered it.^
1 Nye, J., in State u. Kemp. The property intended to be stolen must be
property subject of larceny. State v. Lymus, 26 O. S. 400.
Sec. 1612. Burglary of railroad car — Proof of incorporation
not necessary.
"It is not necessary for the state to prove the articles of
association or charter of the railway corporation, but it is
sufficient to prove by reputation that there was, at the time when
the crime is alleged to have been committed, a corporation known
by that name, operating such road, and carrying goods, stock,
and passengers for hire in its cars running along said company's
road. A de facto existence of the corporation is only necessary
to be shown. ' ' ^
1 Burke v. The State, 34 O. S. 79. It would have been necessary befora
the code. Id.
BUBGLABY. 1327
Sec. 1613. Entry into car.
The juiy is instructed that it Avould not be necessary that the
whole person of the burglar * * * go within the car. It
would be sufficient entering the car if he reached a hand into the
car, and it would be a sufficient entry in the car if he thrust a
stick, a fork, or a hook into the car with intent to steal property
contained therein. That would be a sufficient entry, providing
you find the other things necessary to constitute the crime of
burglary.^
iNye, J., in State v. Kemp, Lorain Co. Com. PI. R. S., sec. 6835. Both
the entry and breaking are essential, though they need not be simul-
taneous. Malone's Cr. Briefs, 186, 1 Hale, 551.
Sec. 1614. Complete instructions to jury in charge of burglary
of storehouse embracing:
1. Burden.
2. Presumption of innocence.
3. Reasonnhle doubt.
4. Credibility of witnesses.
5. Accomplice, testimony of.
6. Alibi.
7. Circumstantial evidence.
8. Possession of stolen property.
9. The statute.
10. Night season.
11. Malicionsly breaking.
You have heard the evidence and the argument of counsel
and it now becomes the duty of the court to give you such instruc-
tions concerning tlie law of this case, as will guide you in your
duties in determining the questions of fact which you will draw
from the evidence which has been introduced before you.
In plain terms the defendant is charged with committing the
crime of burglary of a storehouse. The indictment has been
read to you once or twice and I may simply now state that it
charges that F. W. on the , 19 — , in Franklin county, and
in the night season, entered a storehouse of The E. C. Company,
1328 INSTRUCTIONS TO JURY.
situate in Franklin county, and that he unlawfully, maliciously
and forcibly broke and entered that storehouse with the intent
to steal the personal property of The E. C. Company then
located in that storehouse; and that he did unlawfully steal a
certain lady's blue coat described more particularly in the
indictment, of the value of eleven dollars ; and that he did steal,
take and carry same away.
The defendant has entered a plea of not guilty. That is he
denies each and all of the essential elements charged in the
indictment which constitute the crime of burglary.
1. Burden. That imposes upon the state the burden of prov-
ing all of those essential elements to your satisfaction and
beyond a reasonable doubt, which is the degree and measure of
proof necessary to be applied by you in your consideration and
in your verdict.
2. Presumption. The law presumes, however, in all criminal
cases that in entering upon the consideration of the evidence in
this case that the defendant stands innocent of any crime, or
of the crime charged against lum; that is in entering upon the
consideration of the evidence you are to start out upon the
theory and the presumption of law that he is innocent and to
carry that in your minds until such time in the consideration of
the evidence, as you shall be convinced therefrom beyond a
reasonable doubt that the defendant is guilty. That is all there
is in that matter of presumption of innocence. It is not an idle
matter but it is a rule binding upon you in the consideration
of the case.
3. ReasonaUe douht. Proof beyond a reasonable doubt may
be defined variously and at great length, but in simple terms
it means nothing more than a reasonable uncertainty existing
in the minds of jurors as to the guilt of the accused, after having
considered all of the evidence offered in the case. It is not a
mere speculative, captious doubt which might or might not be
excited in the mind of a juror or jurors for the mere purpose of
shirking the performance of a disagreeable duty; but on the
contrary it is a substantial doubt ; you must be convinced from
BURGLARY. 1329
all of the facts and circumstances introduced in evidence beyond
a reasonable doubt that the defendant is not guilty before you
can acquit him.
4. Credibility of witnesses. The credibility of the witnesses is
-within your sole province to determine and all that you need
do in that regard is to use your common sense in applying such
tests as each and all of you may wish to do or may believe that
you ought to apply in the consideration of the evidence in this
case, as jurors you are nothing more than men as on the outside,
and you will apply the same tests as jurors as you would apply
to facts elsewhere. You may consider the interest that any one
might have in testifying one way or the other, if any such
interest appears.
The constitution of the state now provides that the failure
of a defendant to testify may be considered by tlie court and
jury.
5. Accomplice— Testimony of. It has long been an established
rule of practice in criminal procedure that the court must give
some kind of precautionary instructions to the jury in regard to
the testimony of an accomplice, one charged with the same crime
or witli having taken some part in the crime charged, and
we have heard the testimony of M. P., who is jointly
indicted in this crime with the defendant. Now, the mere fact
that she is; jointly indicted with this defendant does not dis-
qualify her as a witness; she is just as competent to testify as
a witness as any other person, even though she is indicted. The
turpitude of her conduct, if there is to l)e attril)uted any such
to her conduct, does not disqualify her, l)ut tlie credit to be
given her testimony, considering her joint indictment and all
the facts and circumstances appearing in the evidence, i.< a
matter entirely within your judgment and discretion.
Finally in respect to the testimony of M. P. the court charges
the jury that you should be cautious and prudent in the exercise
of your judgment and discretion in considering the weight and
credit to be given the testimony of M. P., that matter being
entirely within your discretion it being your duty to consider
1330 INSTRUCTIONS TO JURY.
her testimony in the light of all of the other testimony and facts
adduced in the evidence in the case.
6. Alibi. There is evidence here offered by the defendant on
the claim of defense of what is termed in law as an alibi ; that
is, the claim is that the defendant was not at the storehouse
of the E.-C. Company on the night of the sixth day of
November, 1912, but that he was elsewhere as is claimed in the
evidence. The court instructs you that such a defense is a
proper one and just as legitimate as any other kind of a defense,
and that it is your duty to consider all the testimony offered
which relates to such defense, but in considering the same
the court instructs you that you are to keep in mind and apply
the degree and measure of proof required in criminal cases.
That is you will consider the claim of alibi, together with any
and all other evidence, and if upon the w^hole evidence — that
relating to the alibi as well as that relating to the body of the
crime — you should not have an abiding conviction of the guilt
of the defendant then it would be your duty to acquit the defend-
ant. But on the other hand if you should feel satisfied beyond
a reasonable doubt of the guilt of the defendant, considering
the claim of alibi, together with all of the other evidence offered
in the case, then it w^ould be your duty under such circumstances
to find the defendant guilty. In other words, plainly and simply,
there is no different degree or measure of proof applying to this
defense of alibi but the one measure of proof applies — that is the
reasonable doubt rule.
7. Circumstantial evidence. It is also necessary for the court
to give you some precautionary instructions concerning what is
known and designated in law as circumstantial evidence. Now
that means nothing more nor less, gentlemen, than proof of facts
from which inferences may be drav^Ti, having a legitimate bearing
upon the main facts involved in this case; or circumstantial
evidence is the proof of facts and circumstances which does not
directly prove the essential elements of a crime but is on the
contrary the proof of other facts and circumstances from which
inferences may be dra^Ti tending to prove the elements of the
crime. Circumstantial evidence, which is evidence by w^ay of
BURGLARY. 1331
deduction or inference, is as competent as any other, but it must
be of such character as to exclude from your minds all reasonable
doubt of the guilt of the accused; that is if in considering the
circumstantial evidence you should be able to draw such
inferences therefrom as would convince you beyond all reason-
able doubt that the defendant was guilty of the crime charged
then it would be your duty to so find him guilty. But if in con-
sidering the circumstantial evidence, together with all the other
evidence you should not have in your minds an abiding con-
Adction of the guilt of the accused, then it would be your duty
to acquit him.
8. Possession of stolen property. There is another matter of
evidence concerning which the court must give you some pre-
cautionary instructions, as to .your duty in considering the same.
It is in regard to the alleged possession of the stolen property.
That is in this case there is some evidence to the effect that the
defendant had possession of the property stolen. Of course it
is for you to determine whether he did have any such possession.
Now the law is that evidence of the alleged possession of stolen
goods by an accused and the giving of a false account of such
possession is competent to be considered by the jury in con-
nection wnth all the other facts and circumstances bearing on
the guilt or innocence of the defendant and tlie jury may draw
such inferences therefrom as it may deem warranted under all
the conditions, considering all of the evidence, that which relates
to the body of the crime, as well as that relating to the claim of
alibi. By body of the crime I mean the actual breaking and
entering into the storehouse and stealing the property.
In considering such testimony concerning the alleged burglary
of the storehouse and the stealing of the property you should
consider further whether the alleged circumstances have been
corroborated by other criminative circumstances or whether it
stands alone without corroborating facts. Wliatever be the
nature of such evidence, the jury on the whole must be convinced
of the guilt of the accused beyond a reasonable doubt upon con-
sideration of all the evidence before you can find the defendant
guilty.^
1332 INSTRUCTIONS TO JURY.
9. The statute. Code § 12438. Those are all instructions so
far, gentlemen, concerning your duty in the consideration of the
evidence in this case, and I now come to the body of the crime,
so called, and the laiv of this state as embodied in the statute,
which provides that whoever in the night season maliciously and
forcibly breaks and enters a storehouse mth intent to steal
property of any value is guilty of burglary. Code § 12438.
You mil notice from a reading of that statute that there are
four or five elements in the crime of burglary ; that is it must
be done in the night season, the breaking must be an actual
breaking, and there must be an actual entering of some of the
body, or of some part of the body, and there must be an intent
to steal the property.
10. Night season. "We all know what the night season means.
It means in court just what it means any^vhere else. It m«ans
in law what is ordinarily understood by persons generally ; that
is it is that period of time after the sun goes down in the evening
and before it rises in the morning when it is so dark that a
person's face can not be discovered by the daylight.
11. Maliciously hrcaking. ]\Ialice in law does not mean what
we might ordinarily comprehend by that term in every day
parlance. It does not mean necessarily ill will or personal spite
but it is a term used in law rather as indicative of a mind which
is fatally bent on mischief, or which is so depraved as to be
devoid of all social or legal obligations, one that is so perverted
as to liave no regard or respect for the rights of others. To
commit such acts maliciously is to do them with wicked, mischiev-
ous intention of mind ; that is an intention to do an act or wrong
without regard to the rights of others; it is indicative of a
wicked and depraved mind and devoid of all social and moral
duties.
To forcibly break and enter means that some force must be
used to break and enter and the law is satisfied with any force,
however slight that may be used in opening a door or window or
other opening of a building.-
iMethard v. State, 10 O. S. .".CS. 3 C. C. 551, 17 C. C. 486.
2 State V. Wilson, Franklin County, Kinkead, J.,
CHAPTER LXXXV.
COMMON CARRIERS OF FREIGHT.
SEC. SEC.
1615. Common carrier defined. 1622.
1616. Common law rule of liabil-
ity of common carrier. 1623.
1617. Act of God defined — Inevi-
table accident.
1618. Liability of express companj' 1624.
for loss of liorse in
shipping. 1625.
1. Liability of common car-
rier in absence of special 1626.
contract.
2. Prima facie case made by 1627.
delivery of horse.
3. Death of horse from nat- 1628.
Ural causes during trans-
portation is an act of 1629.
God.
4. Duty of company when 1630.
horse falls in stall.
5. Liability if company im-
properly treats horse. 1631.
6. Existence of written con-
tract fixing rights and
liabilities.
7. Same — Contract, if made, 1632.
when to be construed ac-
cording to laws of an-
other state. 16.'].'?.
1610. Limiting liability by special
contract — Burden of
j)roof.
1620. Limiting common-law liabil- 1634.
ity — Burden upon car-
rier to show loss within
an exception. 1635.
1621. Not an insurer as to time —
Delay caused by un-
avoidable accident.
Duty of carrier as to deliv-
er}- of goods.
Xon-delivery of property —
Presumptive evidence of
loss by negligence.
Duty of express companies
as to delivery of goods.
Carrier of goods — Rule as to
limitation of liability.
Liability by contract for loss
on connecting lines.
Duty with regard to bag-
gage — Delivery.
Liability in absence of spe-
cial contract.
Contract for transportation
of vegetables.
Delay in delivery of goods —
Exempting liability in
bill of lading.
Bill of lading — Effect of, be-
tween carrier and ship-
per — Conditions in —
Waiver.
Railroad company — Duty to
furnish cars for trans-
portation.
Same continued — Duty of
company to place cars in
suitable place for un-
loading.
Same continued — Duty of
company to provide side-
tracks.
Same continued — May make
reasonable rules concern-
ing car service.
1333
1334 INSTRUCTIONS TO JURY.
SEC. SEC.
1636. Same continued — Reasonable- 1638. Carrier bound to use ordi-
ness of rules — How de- nary care in shipment
termined. of livestock when there
1637. Same continued — Recovery is delay.
for car service — Effect of 1639. Cold weather — Not act of
rules regulating charges God.
for car service beyond 1640. Baggage — What constitutes,
the period allowed for 1641. Baggage — Liability of car-
unloading, rier, that of an insurer.
Sec. 1615. Common carrier defined.
A common carrier is one that undertakes, for hire or reward,
to carry, or cause to be carried, goods for all persons, indiffer-
ently, who may choose to employ him, from one place to another.
Sec. 1616. Common law rule of liability of common carrier.
A common carrier is responsible for the safe transportation
and delivery of goods received by him for carriage, and can only
justify or excuse a default when occasioned by the act of God,
or the public enemy ; he is not only responsible for his own acts
of malfeasance, misfeasance and negligence in the course of his
employment, but he is also regarded as an insurer against all
loss or damages which may happen to goods whilst in his charge,
for the purpose of his employment, though occasioned by
unavoidable accident, or by any casualty whatever, except only
as just mentioned, and the burden of proof is thrown upon the
carrier in bringing any particular case within the exception.
For, in the absence of proof, the loss itself raises the pre-
sumption of negligence on the part of the carrier. The act of
the public enemy is not claimed as an excuse for the non-
performance of duty; the available excuse for the nondelivery
of the goods to the consignee there must be the act of God.^
1 From B. & 0. R. R. Co. v. Crawford. AflBrmed by Circuit Court. Settled
in Supreme Court, No. 2236. May, J.
Sec. 1617. Act of God defined — ^Inevitable accident.
By the term "act of God" is meant something superhuman
— something beyond the power of man to foresee or guard
COMMON CARRIERS OF FREIGHT. 1335
against. It means inevitable accidents, something that happens
without tlie interv^ention of man. Where one is pursuing a
lawful vocation in a lawful manner, and something occurs which
no ordinary skill or precaution could foresee or prevent, and as a
consequence the accident takes place, this is called inevitable
accident.
A loss by fire is not a loss by act of God. It means those
events and accidents which proceed from natural causes, and can
not be anticipated and guarded against or resisted; such asi
unexampled freshets, violent storms, lightning and frosts. For
losses occurring by any of these means, a common carrier is not
liable, provided he has not been guilty of any want of ordinary
and reasonable care to guard sgainst such loss.
Whether in this case such eare and diligence were or were not
used by the defendant, and whether the loss resulted therefrom,
are questions for you to determine in view^ of all facts and circum-
stances proved on the trial. The burden of showing the use of
ordinary care to prevent the loss is upon the defendant; this
shoAdng must be a preponderance of the evidence; that is, the
evidence in its favor must outweigh in your minds through
weight and importance all other evidence to the contrary. Other-
wise you should find for plaintiff. Speaking in other words as
10 ordinary care, if you find by a preponderance of the evidence
that the defendant used such care and diligence to prevent the
loss of the goods entrusted to it as ordinarily prudent men
usually exercise toward their own property under like circum-
stances, your verdict should be for the defendant; but if the
evidence in this direction just balances by your consideration
with the evidence to the contrary, or if you find from such pre-
ponderance of evidence that the defendant did not use such care
and diligence, and the loss resulted therefrom, your verdict
should be for plaintiff.^
1 From p.. & O. Tl. R. Co. r. Crawford. AnTirincd by Circuit Court. Settled
in Supreme Court, No. 223G. May, J.
1336 INSTRUCTIONS TO JURY.
Sec. 1618. Liability of express company for loss of horse in
shipping.
1. Liability of common carrier in absence of special contract.
2. Prima facie case made by delivery of horse.
3. Death of horse from natural causes during transportation
is act of God.
4. Duty of company when horse falls in stall.
5. Liability if company improperly treats horse.
6. Livestock contracts — Existence of written contract fixing
rig His and liabilities.
7. SantC — Contract, if made, when to be construed accord-
ing to laivs of another state.
1. Liability of common carrier ivhen no special contract. The
ultimate question of fact which you have to determine is this:
Is the defendant liable to the plaintiff for the loss of the horse
in question, and, if so, what is the extent of such liability ?
The court instructs you that the defendant is what is known
as a common carrier. A common carrier is one who receives
property to be transported from one place to another, and, if
there is no special contract limiting its liability, is required by
law to deliver it in safety at the point to which it is shipped,
unless it be lost by the act of God or the public enemy. By act
of God is meant such unavoidable accident as can not be pre-
vented by human care, skill or foresight, but results from
natural causes, such as lightning, tempests, floods and so forth.
By the public enemy is meant those who are opposing or are
in arms against the government.
2. Prima facie case made by delivery of horse. Therefore, if
there was no special contract limiting the defendant's liability,
the plaintiff has made out a prima facie case when it proves the
delivery of the horse to the defendant to be carried for a con-
sideration, and failure to deliver him at Fulton, New York, and
the company must then show by producing evidence of equal
weight or countervailing force that the failure to deliver the
horse was due to an act of God or to the public enemy, to relieve
itself from liability.
COMMON CARRIERS OF FREIGHT. 1337
3. Death of horse from naiural causes during iransportaiion is
act of God. If the horee died from natural causes, from disease,
while being transported, then this would be an act of God, and
the defendant will not be liable for the loss of the horse, nor
would defendant be liable, if the cause of the horse's death was
solely due to his peculiar nature or propensities, unless the loss
could have been prevented by the exercise of reasonable fore-
sight, vigilance and care, on the part of defendant, for defendant
is not an insurer against death arising from the condition of
the horse himself. If the horse was seized by the disease known
as congestion of the lungs, and not by reason of any fault or
negligence of the defendant, died from that disease, his death
not being due wholly or in part to the defendant's negligence,
this would be a matter beyond the control of the defendant, and
in such case that defendant will not be liable for the loss and
your verdict should be for defendant.
4. Duty of company \clicn horse falls in stall. If however, the
horse may have thrown himself in the stall without negligence
on the part of the defendant, it would be the duty of the agents
of the company to exercise reasonable and ordinary care to
relieve him from such condition or situation, and if he died, as
contended, from thus being cast in the stall, and from being
allowed to remain in that situation for such a time as caused
his death, and you further find that by the exercise of reasonable
care on the part of the company's agents, the liorse could have
been liberated from his situation and thereby his death pre-
vented, then the defendant would be liable if it did not exercise
such care.
5. Liability of company if it improperly treated horse.
Furthermore, if after he was taken from the stall, you find tliat
with proper treatment his life could have been saved, and that
he was improperly treated and died as a result of such treatment,
this would render the defendant company liable, in the absence
of a contract limiting its lia])ility, Ix'cause the defendant will be
liable for the loss of the horse, if he was lost by reas(m of negli-
gence, that is, by reason of not exercising reasonable care, on
1338 INSTRUCTIONS TO JLTKY.
the part of the defendant's agents in charge of the horse. And
the extent of its liability, if there was no special contract as
hereinafter considered, would be the value of the horse with
interest from the time it should have been delivered to its desti-
nation, but not exceeding the amount claimed in the petition
with interest as before mentioned from , 19 — .
But if there was no negligence on the part of defendant
resulting in the horse being cast in the stall, nor in relieving him
from his situation after being cast in the stall, nor in the treat-
ment of the horse thereafter, the defendant would not be liable,
and your verdict should be for the defendant.
6. Livestock contract— Existence of ivritten contract fixing
rights and nihilities for the jury. The defendant's contention is
that there was a written contract between the parties which
fixed the rights and liabilities of the parties respecting the ship-
ment of this horse and the jury must determine whether or not
these parties entered into such contract, duplicate copies of
which have been introduced in evidence as Exhibits 1 and 2, and
termed "Limited liability livestock contract." If you find that
the parties did not enter into said contract with respect to the
shipment of the horse, then the case stands for your determina-
tion upon the issues made by the petition and the first defense
of the answer, under the evidence applicable thereto and the
charge of the court, and you need not consider further the
matters set forth in the last four defenses of said answer. But
if you find that the parties entered into the alleged livestock
contract, and according to the terms of which the horse was
shipped, then the issues made by the petition and the first
defense of the answer as well as the issues made upon the other
four defenses and the reply are to be considered by you in
determining defendant's liability, or non-liability for the loss
of said horse, for if the horse was shipped pursuant to said live-
stock contract, the rights and liabilities of the parties are
governed by the terms of said contract and it will control in the
rendition of your verdict.
On the question as to whether or not the parties entered into
the alleged livestock contract and the horse was received and
COMMON CARRIERS OP FREIGHT. 1339
shipped under the terms of said contract, you will examine into
all the facts and circumstances surrounding the parties prior to
and at the time of and subsequent to the traasaction relating to
the shipment of said horse, including what was said and done by
the parties. You will consider whether or not the alleged con-
tract was signed, and, if so, by whom, when, where, and why it
v.as signed, and the purpose and object of signing it. Was it
with the intention of establishing contractual relations between
the parties concerning this horse, or for some other purpose or
intention, and, if signed in duplicate what was done with each
copy, the circumstances of their disposition, or possession by one
or botli of the parties, as the case may be ; you will also consider
on the question of the contract becoming a binding agreement
between the parties or otherwise, whether or not the parties had
had prior transactions of a like character to this one, whether
or not the plaintiff was familiar with the defendant's method of
transacting this sort of business, and of contracting for such
shipments, whether, on the one hand, there was any concealment,
deception, fraud, or unfair conduct, or undue advantage taken
on the part of defendant, whereby plaintiff was induced to
enter into the contract, if it did so ; or, on the other hand, there
was no concealment, fraud, deception, unfair conduct, or advan-
tage taken by defendant to induce such contract, but that the
contract was freely and fairly made between the parties;
wlictlier, on the one hand, the plaintiff, if it executed the con-
tract, in order to have its horse shipped, had no other alternative
except by signing the contract in question ; or, on the other
hand, it may have had its horse shipped by paying a reasonable
price therefor to defendant without having entered into said
contract, or by entering into a different contract. Applying
these and other tests appearing from the facts and circumstances
adduced in evidence, if you find that the alleged contract repre-
sented by Exhibits 1 and 2 was signed in duplicate by the parties
with the intention of the parties to the transacticm to make an
agreement concerning tin; shipment of lliis liorsc jmd wliich
agreement was dictated only by their mutual and according wills
1340 INSTRUCTIONS TO JURY.
and was not induced by fraud, concealment or deception, but was
fairly made, you will be justified in finding and it will be your
duty to find that the alleged livestock contract was the contract
pursuant to which said horse was shipped, and will be upheld as
a just and reasonable method of fixing a due proportion between
the amount for which the defendant became responsible and the
express charge it was to receive, and also of protecting itself
against extravagant valuations in case of loss; and a recovery
for loss or damage will be limited to the amount of valuation
named in the contract, even if the damage or loss occurred
through the negligence of the defendant or its servants.
But if you find that the plaintiff did not sign the contract, or,
if it signed the contract, there was no mutuality of assent to
this live stock contract, as the contract between the parties in
relation to this horse, either because of concealment or deception
or fraud or undue advantage by defendant or want of voluntary
assent by plaintiff, so that the contract was not fairly made,
you will be justified in finding and it will be your duty to find
that such contract was not the contract between said parties.
To constitute the alleged livestock contract a binding contract
between the parties, it was not essential that it be signed at the
time of or before the shipment was made. It is sufficient, if
it were contemplated between the parties at the time of such
shipment that a written contract should be entered into under
which the horse was to be shipped, and if in pursuance of such
contemplated arrangement, the written contract was signed antl
delivered as the agreement under which the horse was shipped,
it became the binding contract for such shipment, although
executed after the horse was shipped.
If you find that the alleged livestock contract represented by
Exhibits Nos. 1 and 2 was the contract pursuant to which the
horse was shipped, the fact, if it be a fact, that the plaintiff"
failed to acquaint itself with the contents of said contract will
not excuse the plaintiff from being bound by its terms, for it was
incumbent upon the plaintiff' to acquaint itself with the contents
of such contract, if it was executed by the plaintiff, and, although
COMMON CARRIERS OF FREIGHT. 1341
it failed so to do, it will lie held chargeable with the knowledge
of such contract, although the circumstance of not reading or
familiarizing itself with the contents of said alleged livestock
contract will be taken into consideration by you with all the
other circumstances in determining whether or not it was the
contract under which said horse was shipped.
7. Same — Contract, if made, to he construed according to laws
of another state. If you find that the alleged livestock contract
was the contract under which said horse was shipped, then the
court instructs you that by its terms any question arising under
said contract was and is to be determined by the law of the state
of New York, and certain decisions of the state of New York
having been given in evidence to the .jury, it is the duty of this
court to construe those decisions and deduce from them the
rules of law which they establish, and in that view of the case
said contract provided that in consideration of the alternative
rates offered the shipper upon the basis of the different values
to be placed by the shipper upon said horse, and the declaration
by the shipper of the value of $ placed upon said horse in
consideration of certain rates to be charged for shipping him
upon that basis, it was agreed that the express company should
not be liable for the conduct or acts of the animal to himself as
therein specified, nor for loss arising from the condition of the
animal himself, or which resulted from his nature or propensities
which risks were assumed by the shipper, the plaintiff in
this case. And the shipper released and discharged the express
company from all liability from delay, injury to, or loss of
said animal from any cause whatever, unless such delay, injur}'-
or loss was caused by the negligence of the agents or employes
of the express company, and in such event the express company
was to become liable only to the extent of actual damage, which
should in no event exceed the valuation therein declared by the
shipper, to-wit, the sum of $ .
The court instructs you that under the law of the State of
New York the defendant had the right to make such a contract
with the terms as herein above specified with the plaintiff, and
1342 INSTRUCTIONS TO JURY.
if made, the same was binding upon the parties thereto, and if
the loss or damage to the horse arose solely from the condition
of the animal itself, or from its nature and propensities, and not
from any negligence on the part of the defendant, the risk of
such loss and damage were assumed by the plaintiff and it
released and discharged the defendant from all liability for such
injury to or loss of said animal from said cause; and if the
injury or loss to said animal was caused by the negligence of the
agents or employes of the express company, in that event the
express company was only liable to the extent of the actual
damage, based upon the valuation of the horse fixed by the con-
tract, to-wit, the sum of $ with interest thereon from the
Furthermore, if you determine that the alleged livestock
contract represented by Exhibits Nos. 1 and 2 was the contract
which bound the parties in the shipment of this horse, there was
a provision therein to the effect that in no event should the
express company be liable for any loss or damage unless the
plaintiff should, within thirty days after such loss or damage
accrued, give notice in writing of its claim therefor to said
defendant, and that there should be no waiver of the aforesaid
time within which said claim should be made, unless the defend-
ant expressly agreed in writing to waive the ^ame. Therefore, if
you find the aforesaid livestock contract was the contract under
which the horse was shipped and that the written notice required
by said contract to be given to the defendant of loss or damage
was under all the circumstances reasonable, and that such notice
was not given by the plaintiff to the defendant within thirty
days after such loss or' damage accrued, and that the defendant
did not expressly agree in writing to waive such notice, then
the plaintiff can not recover in this case and your verdict must
be for the defendant.
If you find that the alleged live stock contract was not the
contract under which said horse was shipped, then the court
instructs you, as heretofore stated in the fore part of this charge,
that you will determine the liability or non-liability of the
COMMON CARRIERS OF FREIGHT. 1343
defendant for the loss of said horse, independent and aside from
said contract, according to the instructions heretofore given you
with regard to such liability or non-liability in case there was no
written contract entered into between the parties.^
1 McLaughlin in Bros. i\ American Express Co., Court of Com. Pleas,
Franklin County, Ohio, Rogers, J.
A judgment on a previous verdict was reversed by the circuit court which
was affirmed by the supreme court. McLaughlin Bros. v. American
Express Company, 80 0. S. 704. The foregoing instructions were
prepared in accordance with the rules announced in the judg-
ment of the circuit court. This has since been affirmed by the su-
preme court.
Sec, 1619. Limiting- liability by special contract — Burden of
proof.
"A carrier may restrict or limit the amount of its liability by
a special contract accepted on the part of the owner of the
baggage; and this may be done by notices brought home to the
owner of the baggage before or at the delivery to the carrier,
if assented to by the owner. ' '
"The onus of proving any qualification of the liability of the
defendant as a carrier rests upon it. The notice, to be of any
force, must amount to actual notice. At all events to exonerate
the defendant as a carrier from its general liability it must be
shown at least, by the evidence, that the plaintiff, or those acting
for her, assented to the demands of the notice or, with a knowl-
edge of it, acquiesced in it by making no remonstrance."
"And in determining whether or not the conditions and limita-
tions were brought to the notice of the plaintiff and those acting
for her, you will look to all the evidence in the case ; as to the
manner of the delivery of the ticket and the check; whether any-
thing was said or done calling attention to them or not ; whether
they were not read at the time of or before the receipt. ' ' ^
1 Railroad Co. v. Campbell, .36 O. S. 647.
Sec. 1620. Limiting- common-law liability — Burden upon car-
rier to show loss within an exception.
You are instnicted that while a common carrier is ])(!rmitted
by a special contract made with the owner of goods entrusted
1344 INSTRUCTIONS TO JURY.
to it to restrict or limit its common-law liability so as to exon-
erate it from losses arising from causes over which it has no
control, and to which its fault or negligence in no way contrib-
uted, it can not by such a contract relieve itself from responsi-
bility for losses caused by its own negligence or want of care or
skill, and the burden rests upon the carrier to show not only
a loss within the terms of the exception, but also that proper
care and skill were exercised to prevent the loss.^
1 Graham v. Davis, 4 0. S. 362; Express Co. v. Graham. 26 0. S. 598:
Express Co. v. Bachman, 28 O. S. 144.
Sec. 1621. Not an insurer as to time — ^Delay caused by un-
avoidable accident.
You are instructed that a common carrier is not an irLsurer as
to time, but is bound to transport goods to its destination within
a reasonable time ; and if delay is caused by an inevitable acci-
dent, the carrier is not responsible for any loss resulting, if it
has used ordinary care under the circumstances. Under such
circumstances its duty is to use all reasonable efforts to avoid
all unnecessary damage to the property by forwarding it to its
destination by other means of conveyance, ol* in some other way.
If the goods are of a perishable nature afid it is unable by the
exercise of ordinary care to forward it to its place of destination
in time to avoid a total loss, it may sell the same for the best
obtainable price. If a total loss may have been prevented by
sending the goods over another route, it is its duty to do so.^
1 Express Co. v. Smith, 33 O. S. 511.
Sec. 1622. Duty of carrier as to delivery of goods.
The jury is instructed that as a general rule, when the carrier
has done all that the law requires toward effecting a delivery of
the property, but is unable to accomplish it, and the property
is so necessarily continued in its possession, its obligation be-
comes that of a depository only. He is no longer an insurer of
the property, and may show that it was lost without its fault or
negligence, and if the defendant shows by a preponderance of
COMMON CARRIERS OF FREIGHT. 1345
the e%'idence that it has done all that it could do towards deliv-
ery of the goods, and that they were lost Anthout any fault on
its part, it is not liable.^
1 Railroad i\ O'Donnell, 49 O. S. 496.
Sec. 1623. Nondelivery of property — Presumptive evidence
of loss by negligence.
Should you find from the evidence that the defendant received
the property to be transported for hire as charged in the peti-
tion, then it was their duty to cause the same to be safely carried
to the place of destination and deliver the same to the person
to whom they were consigned, and the fact, should you so find,
that these goods were not delivered is presumptive evidence of
loss by negligence, and in that case the burden of proof is upon
the defendants to show the exercise of due care on their part, for
the law exacts of a common carrier a high degree of care. Yet
if you find from tlie evidence that the defendant exercised rea-
sonable care, and that the loss, if any, was occasioned by causes
over which it had no control, and not from its own neglect or
omission of duty, your verdict must be for the defendant; but
if you should fail to find that the defendant did exercise all
reasonable care, or that the loss, if any, was occasioned by causes
over which it had control, or from its own neglect or omission
of duty, your verdict must be for the plaintifl".^
1 Greene, J., in Stevenson v. Wells, Fargo & Co.
Sec. 1624. Duty of express companies as to delivery of goods.
The undertaking of express companies is to make delivery
of goods entrusted to its care for carriage to the consignee pei--
sonally, with all reasonable dispatch ; and to this obligation they
are held by the law with great strictness. If there is delay
because of some inevital)le accident, it will excuse such delay,
but the carrier must make delivery as soon as the impedimc-ul
to the transportation of the property is removed, or can reaseii-
ably be overcome.^
1 Railroad v. O'Donnell, 40 O. R. 489.
1346 INSTRUCTIONS TO JURY.
Sec. 1625. Carrier of goods — Rule as to limitation of liability.
"A railroad company engaged in the business of transporting
live stock assumes all the responsibilities of a common carrier.
In the absence of any special contract limiting its liability, it
insures against all loss except that caused by the act of God or
the public enemy.
"It may limit its liability by a special contract with the
shipper or consignor of the property, but such special contract
can never relieve the railroad company from liability for its
own negligence. ' ' ^
1 Kansas City K. Co. v. Simpson, 30 Kan. 647.
Sec. 1626. Liability by contract for loss on connecting lines.
"A railroad company may become liable as a common carrier
by contract for transportation of passengers and baggage over
other railroads, forming with their own a continuous line; and
where they do so contract, their liability is the same for losses
occasioned by negligence as fault while the baggage is upon sueli
other road as while it is upon their own road." ^
1 Railroad Co. v. Campbell, 36 0. S. 647.
Sec. 1627. Duty with regard to baggage — Delivery, etc.
"When a railroad company takes baggage for a passenger,
its liability is of the highest sort. It agrees to carry the bag-
gage safely, and insures against all sorts of risks, except the act
of God or the public enemy. But when the baggage is landed
it is the duty of the owner to call immediately, or as soon as the
throng and hurry incident to the arrival and departure of trains
has subsided and get his property. But if he fails to thus call,
and the agent of the railroad company takes charge of it, then
'the responsibility will be changed. It will be the responsibility
of a warehouseman instead of that of a common carrier. The
liability will be to take such care of the property as an ordi-
narily prudent man would of his own property under like
circumstances. All the defendant is required to do is to take
COMMON CARRIERS OF FREIGHT. 1347
ordinary care under the circumstances, such as men usually
exercise in their own concerns. The defendant is not liable for
the theft of the goods unless it is the result of the want of proper
care. ' ' ^
1 Penna. Co. v. Miller & Co., 35 0. S. 541. The judgment of the common
pleas court in the case from which the above is taken was reversed
by the supreme court, but the latter say in their opinion, 35 O. S.,
p. 550, with reference to this portion of the charge, that "with the
general rule thus stated we find no fault; and a less degree of care
ought not, in our opinion, to be allowed." The reversal was based
upon other grounds
Sec. 1628. Liability in absence of special contract.
"In the absence of special contract limiting the liability of
the defendant, if the jury find that it is liable for loss of plain-
tiff's baggage, you will assess as damages the value of the trunk
and such of its contents as you find was the wearing apparel of
herself or her child, or their necessary or usual appendages or
accompaniments of herself and child as travelers, with interest
from the demand to the first day of the present term."^
1 Railroad Co. v. Campbell, 36 0. S. 647.
Sec. 1629. Contract for transportation of vegetables.
If the defendant agreed with the plaintiffs that for a certain
consideration it would carry a carload of potatoes for them
from P. to R., and if, in pursuance of such agreement, the plain-
tiffs delivered the potatoes to the defendant for that purpose,
on the day of , 19 — , it was then the duty of the defend-
ant to forward them to the place of delivery within a reasonable
time, and without unnecessary delay, and if it failed to do so,
and the plaintiffs suffered loss or damage in consequence of such
unreasonable and unnecessary delay, then the defendant would
be liable for such loss or damage.
Therefore, if the jury find by a preponderance of the evidence
that the defendant agreed with the plaintiffs to transport a
carload of potatoes from P. to P. ; and fiu'thcr that said potatoes,
under said contract, were delivered to the defendant for sliip-
1348 INSTRUCTIONS TO JURY.
ment ; and if the jury further find that through the negligence
of the defendant the potatoes did not arrive at their destination
within a reasonable time after the defendant received them, and
in consequence of unreasonable and unnecessary delay, a portion
of them froze, then a primd facie case is made out in favor of
the plaintiffs.
If the delay was not the proximate cause of the freezing, or,
in other words, if the potatoes would have frozen even if there
had been no delay and they had arrived at their destination in
due time, then the defendant would not be liable.^
iDeWitt, J., in B. & 0. R. R. Co. v. Talbott, S. C. No. 2718, Erie County.
See Hewitt v. C. & C. R. R. Co., 18 Am. and Eng. R. R. Cas. 568, where
company held liable for loss of potatoes by freezing, the court
holding that danger from cold was one which ordinary foresight
could have apprehended and guarded against; that great diligence
and dispatch were required of the company in the duty of for-
warding these perishable articles, and if they were exposed to the
danger which injured them through the company's negligence, it
is responsible for the damages. See also Daniels v. Valentine, 2.3
O. S. 532; Canfield v. B. & 0.. 93 N. Y. 5.32.
Sec. 1630. Delay in delivery of goods — Exempting liability
in bill of lading.
If the defendant was guilty of any unreasonable delay in the
delivery of the turkeys, and it was the result of its own negli-
gence or want of care and diligence in that behalf, then it is
liable for whatever damages the plaintiff thereby sustained. The
defendant being a common carrier, it can not, by its bill of lading
given to shippers, or in any other way exempt itself from lia-
bility for loss or damage arising from failing to deliver the
goods shipped within a reasonable time, or at the time stipulated
by it for delivery, if there is any such time, if the failure be the
result of its own negligence or that of its agent.
No conditions in a bill of lading can bind the shipper unless
where it be averred and proven by the carrier that the shipper
knew of such conditions and assented to them at or prior to the
time of shipment, and such assent must be proven by the carrier.
The law will not presume it; and whether there was a bill of
COMMON CARRIERS OF FREIGHT. 1349
lading given for these turkeys, and the plaintiffs knew of and
assented to the conditions, is a question for your determination,
and the burden is on the defendant to prove these facts.^
1 American Express Co. v. Hawk, ol O. S. 572. Charge aflBrmed by C. C.
& S. C.
Sec. 1631. Bill of lading- — Effect of between carrier and
shipper — Conditions in — Waiver of.
If, at the time the plaintiffs delivered the potatoes to the
defendant for shipment, the receiving agent at P. Station signed
a bill of lading and gave it to the plaintiffs, who accepted it and
carried it away with them, such bill of lading would have all
the force of a written contract between the parties, although it
was not signed by the plaintiffs, and if it contained the condi-
tion alx)ve mentioned, then no right of action could accrue to
the plaintiffs, unless they presented their claim for damage
within ten days limitation. This condition, however, could be
waived by the defendant. If the plaintiffs, exercising reason-
able diligence in the premises, were unable to discover and ascer-
tain their loss within ten days from the time of the delivery,
or could not, by the exercise of diligence, determine the extent
of their loss and damage \Aathin the ten days ' limit, and if, after
the expiration of said ten days, they presented their claim for
damage to the defendant's agent, having authority to act for it,
and if, at the time the claim was presented to such agent, they
had knowledge of the fact that the time specified in the bill of
lading, within which the claim could be presented by the plain-
tiff's, had expired, and if they received such claim, and pro-
ceeded to investigate it, and made no objection to its adjustment
and payment on the ground that the time within which the claim
could be presented had expired, but based the refusal of adjust-
ment and payment on other grounds, then it is the opinion of the
court that such facts would constitute a waiver of the per-
formance of said condition on the part of the defendant.
If the defendant did not waive the performance of said con-
dition, then the plaintiffs' failure to present their written de-
1350 INSTRUCTIONS TO JURY.
mand for damage within ten days would bar their right of
recovery; but if the defendant waived it, then it is no defense
to this action.
The defendant also claims that said contract contains the
following provision: "And the liability of each of the carriers
which shall receive these goods for transportation shall be con-
fined to loss or damage occurring on its own line, and shall
cease on delivery of the goods to the next carrier."
The plaintiffs also admit that the bill of lading contains this
condition.
The defendant insists that it is exempt from liability on the
ground that the loss or damage occurred while the potatoes were
on the line of another railroad, to w^hich it, the defendant, had
delivered the potatoes to be carried from the terminus of its
road to R.
The plaintiffs claim that the loss ocurred or happened while
the potatoes were in the possession of or under the control of
the said defendant.
This is a question of fact, and if the jury find that the potatoes
were not frozen while on the defendant's line of road, then the
defendant is exempt from liability; and if, on the contrary,
they find they were frozen while on the defendant's line of road,
or before they were delivered to the connecting carrier, then this
claim made by the defendants does not exempt it from liability.
If the jury find for the plaintiffs, they, the plaintiffs, \\dll
be entitled to recover the value of the potatoes which were
frozen. That is, the market value at P. at the time they were
delivered to the defendant for shipment.^
1 DeWitt, J., in B. & 0. R. R. Co. v. Talbot, Rnp. Ct.. Xo. 27 IS.
Sec, 1632. Railroad company — ^Duty to furnish cars for trans-
portation.
You are instructed that it is the duty of the railroad company,
as a common carrier, to furnish cars for the transportation of
freight, and it must have control over its cars in order to per-
form its duties to the public. If persons to whom shipments
COMMON CARRIERS OF FREIGHT. 1351
of goods and merchandise are consigned might hold the cars
without unloading, at their pleasure or convenience, and without
extra costs or charges, and thus deprive the railroad company
of the use of its ears for the transportation of other freight, it
is ver.y e^^dent that both the railroad company and the shipping
public would suffer serious injury and loss.^
1 Van Pelt, J., in B. & 0. Railroad Company v. Swishor. 1 O. X. P. Pvep. 122.
Sec. 1633. Same continued— Duty of company to place cars
in suitable places for unloading.
When a car arrives, it is tlie duty of the servants of the com-
pany to place the same in a convenient place for unloading,
and if it fails so to do, the period of four days allowed by the
rules for unloading does not begin until the car is placed in a
convenient and proper place to unload. Wlien a car is once
placed in a suitable place for unloading, it is the duty of the
ser^-ants of the company to keep it so located for the four days
which are provided and allowed for unloading ; and if the com-
pany fails so to do, it can not recover for car service for such
car under the rule until the same is placed in a convenient place
for unloading, and kept in such a place for the period of four
days. In saying that the car must be placed and kept in a
convenient place for unloading during the period of four days
it is not meant that the car should be kept in the same spot
or place on the track during all of the period of four days.
If, in receiving their cars from day to day, and in removing
cars that have been unloaded, it becomes necessary to shift the,
position of the car for freight unloading upon the side tracks
of the company, such shifting or changing of pOvsition will not
prevent the company from recovering for car service if the
car is not unloaded within the four days, provided it is after
such shifting left in a suitable and convenient place for unload-
ing. But if the car is shifted in its position from day to day,
and on some days it is in a suitable place for unloading, and
on other days not, and is not at any time for the full period of
four days kept in a suitable place for unloading, the company
1352 INSTRUCTIONS TO JURY.
can not recover from the consignor any car service under the
rule on account and because of failure to unload the car within
the period of four days prescribed by the rules, but he can be
held liable for car service on account of his failing to unload
within that time.
But if the car is placed and kept in a suitable place for un-
loading for the full period of four days, and the consignor fails
to unload the same within that time, he will be liable for car
service after that period, although the car may not at all times
thereafter be kept in a convenient place for unloading, unless
the servants of the company thereafter unreasonably delay him
in unloading by placing the car in an unsuitable place, keeping
the same there longer than is reasonably necessary to enable
them to accommodate other shippers, and to receive and remove
other cars in the transaction of their business. If, however,
after the period of four days, the consignor is unreasonably
delayed and hindered in the unloading of the cars, the company
can not recover service for any day on which he is thus injured
and delayed.^
1 Van Pelt, J., in B. & O. Railroad Company v. Swisher, 1 0. N. P. Rep. 122.
Sec. 1634. Same continued — ^Duty of company to provide side
tracks.
It is the duty of the railroad company operating under such
a rule or regulation, to provide at each of its stations where
such rule is in force, side tracks sufficient in number and extent
to accommodate its business at such station, and to enable its
servants to place and keep cars accessible for purposes of un-
loading. And if such sufficient side tracks are not provided,
and because of the want thereby, the servants of the company
are unable to keep cars in places convenient for unloading for
the period prescribed by the rule, the company can not recover
for the car service if the car laid longer than the time allowed
without being unloaded.^
1 Van Pelt, J., in B. & 0. Railroad Company v. Swisher, 1 O. N. P. Rep. 122.
COMMON CARRIERS OF FREIGHT. 1353
Sec. 1635. Same continued — May make reasonai)le rules con-
cerning the car service.
It is a well-settled rule of law in this state that a railroad
company, as a common carrier of freight, may make and en-
force all reasonable rules for the convenient transaction of
business between itself and those dealing as shippers and con-
signors.^
1 Van Pelt, J., in B. & 0. Railroad Company v. Swislior, 1 O. X. P. Roj). 122.
Sec. 1636. Same continued — ^Reasonableness of rules — How
determined.
Whether a particular rule or regulation is or is not reason-
able in its requirements, is, when the facts are shown, a ques-
tion of law for the court, and not a question of fact for the jury.
You are therefore now instructed that the time allowed for
unloading, that is four days, was a reasonable time, and that the
amount charged ($1.00) per day for each day over the period of
four days is not excessive, and that the rule or regulation in
question, if you find that such a rule or regulation is established
by the evidence, was a reasonable one, and is valid in law.^
1 Van Pelt, J., in B. & 0. Railroad Company v. Swisher, 1 0. X. P. Re)). 122.
Sec. 1637. Same continued — Recovery for car service — Effect
of rules regulating- charges for car service
beyond the period allowed for unloading.
Rut the railroad company can recover for charges for the
service of their cars beyond the period which they allow for
unloading. It must show by a preponderance of the evidence
that the defendant was notified or had actual knowicdiic of tlie
arrival of the cars and failed to have the same unloaded for
more than four days after being thus notified or learning of
their arrival. If this fact is not shown as to some one or more
of these cars the plaintiff can not recover; l)ut if it is showai,
then the plaintiff must go further and prove that it was operat-
ing its railroad and shipping mercliandise over its lines under
1354 INSTRUCTIONS TO JURY.
the rule or regulation applicable for shipments to this place,
requiring those persons to whom shipments were made who, on
learning of their arrival, unloaded the same from the cars within
a period of four days thereafter, and that if they failed to so
unload their cars within that period that they should pay to
the delivering company the sum of one dollar per car per day
for all the time over the period of four days so allowed for the
unloading of the car.
If you should find that some time before these shipments
were made the number of railroad companies doing business
in this part of the country, including the plaintiff, B. & 0.
Railroad Company, had formed or entered into a car service
association, and that such association, in order to secure the
prompt unloading of cars, had adopted such rule or regula-
tion, this would be the same in effect as if the plaintiff com-
pany had in itself adopted the same. But if you find that such
rule and regulation was then in force and applicable to ship-
ments to these places, including the shipments of coal and
coke, then, if such rule or regulation was reasonable, that is,
if it imposes no unreasonable burdens or restrictions upon those
receiving shipments here, it was legal and valid and may be
enforced by the company. * * *
If the existence of such a rule or regulation is not shown
the plaintiff can not recover, for it bases its right to recover
on that rule. But if the rule be shown, and also that it was
applicable to shipments to this point, and that the defendants
on the arrival of the cars were notified, and had obtained actual
knowledge of the fact and failed for more than four days to
have the same unloaded, or liefore plaintiff can recover it must
appear that defendants had knowledge of such rules or regula-
tions at the time, and it must also be shown by a preponderance
of evidence that the cars on their arrival were placed and kept
upon a sidetrack of the company in suitable and convenient
places for unloading the same by wagons and teams.^
1 Van Pelt, J., in B. & O. Eailroad Company v. Swisher, 1 0. N. P. Pep. 122.
COMMON CARRIERS OF FREIGHT. 1355
Sec. 1638. Carrier bound to use ordinary care in shipment of
live stock when there is delay.
If there was delay in the transportation of the cattle, the
defendant was required to use ordinary and reasonable care
during the delay for their safety. If the removal of the cattle
from the car during the time of the delay, or at any time w^hile
in the defendant's possession, became reasonably necessary for
their protection from injury, in the exercise of ordinary care
for their welfare, and it was possible to remove them by the
exercise of ordinary care, then it became and was the duty of
the defendant in the exercise of ordinary care to give them such
attention as was reasonably and ordinarily necessary for their
welfare and protection, during the w^hole time the cattle were
in the passession of defendant. When the defendant contracted
to carry the cattle to their destination, the law imposed upon
it an obligation to use ordinary and reasonable care in the
transportation and delivery of such cattle at their destination,
considering the ordinary perils of the road. And if the de-
fendant failed to exercise ordinary and reasonable care in their
transportation and delivery of such cattle, and by reason of
such failure and neglect, injury was done to such cattle result-
ing in damage to plaintiff, defendant is responsible for such
damage, unless the same was caused by some condition beyond
its power to prevent, as by act of God.^
1 Colsch V. Railway. 149 Towa. 176, 127 X. W. 198, Am. Ann. Cas.
1912, C. p. 915.
Sec. 1639. Cold weather — Not act of God.
Where cattle are exposed en route to a very severe spell of
cold weather, m consequence of which they are more or less
injured, such cold weather is not wdthin the rule of law con-
sidered as an act of God excusing a railroad company from
liability for .such injury. Such condition ougbt and might be
reasonably foreseen, and if through the negligence of the- carrier
the shipment of cattle is unnecessarily delayed by reason whereof
they sustain injuries by reason of cold and rain, or from ex-
1356 INSTRUCTIONS TO JURY.
posure to severe and cold weather for an unnecessary length of
time, such carrier is liable for damages resulting therefrom.^
1 Railroad v. Smissen, 31 Tex. Civ. App. 549, 73 S. W. 42; Am. Ann. Cas.
1912, C. p. 922, note; Feinberg v. R. R., 52 N. J. L. 451; Stiles
V. R. R. Co., 130 Am. St. 451, note. Snow storm. Herring v. R. R.,
101 Va. 778, 45 S. E. 322.
Sec. 1640, Baggage — What constitutes.
> 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<T. Franklin Co. Com. Pleas, Kinkead. J. Authorities
on the responsibility of innkeeper in ejecting persons. See Holden
V. Carraher, 195 Mass. .302: State r. Steele, 106 N. C. 766, 8 L.
R. A. 516; Hale on Bailments. 276: Wieseneck v>. 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. <S: R.,
sec. 234.5; Drake v. Latham, .^O 111. 270; Jaggard on Torts, 577;
Cooley on Torts, ,56.5.
2 Calvin D. Wright, J., in Randolpl) r. Auunon, .51 0. S. 585. The case
was reverse<l by the Circuit Court by sustaining a demurrer to the
petition, and this was modified by the Supreme Court, and sent
back for new trial, which rule would not aflVct the charge.
Sec. 1801. Fraud in obtaining insurance policy alleged by
defendant.
1. Claim of (Icfendant of false answers to infcrrogntonrs.
2. The statute concerning same.
1544 rsrsTRucTioNs to jury.
3. Burden on him who attacks a transaction as fraudulent
— Honesty and truthful answers required of applica/n^t.
4. Same — Degree of evidence required in such case.
5. Credibility of witnesses. See sec. .
6. Fraud — Its definition and elements.
1. Claim of defendant of false ansivers to interrogatories.
Defendant says that it was induced to make and deliver the
policy of insurance by reason of the fraudulent concealment
and misrepresentation of W., same being material to the risk,
and not known to the defendant at the time of the issuance of
the policy ; that the policy would not have been issued had it
not been for the false and fraudulent representation. The fraud
and misrepresentation claimed and alleged by defendant :!s
denied by the plaintiff. The issue is therefore clearly drawn
as to the truth of the claim of fraud.
Under the issues in this case the question for the jury to
decide is whether the deceased, W., made an answer to any
interrogatory as an applicant for insurance in his application
which was wilfully false or fraudulently made; whether such
answer, if it was wilfully and fraudulently made, was material ;
whether it induced the company to issue the policy; whether
the defendant company would not have issued the policy on
which this action is brought if the alleged wilfully false and
fraudulent answer had not been made, if it was made.
2. The statute concerning same. The statute of this state
pro%ddes that: "No answer to any interrogatory made by an
applicant in his or her application for a policy shall bar the
right to recover upon any policy issued therein, or be used in
evidence upon any trial to recover upon said policy unless it
be clearly proved that such answer is wilfully false, was fraud-
ulently made, that it is material, and induced the company to
issue the policy, and that but for such answer the policy would
not have been issued, and also, that the agent or company had
no knowledge of the falsity or fraud of such answer."
3. Burden on him ivho aftachs tramsorfion as fraudulent. It
is presumed that every business transaction of every man is in
good faith, and for an honest purpose. Therefore and for that
FRAUD FAJLSE REPRESENTATIONS, ETC. 1545
reason, and because of that presumption it is incumbent on one
who alleges that an act done, or a statement made is in bad
faith and made for a dishonest purpose, to prove that the same
was made in bad faith by either facts or circumstances from
which the jury may infer and conclude that it was made in bad
faith, and hence that it was fraudulently made.
A contract of insurance, like any other business transaction,
is one which eminently requires good faith, honesty and integ-
rity of the statements on the part of the applicant for insur-
ance. Such good faith, honesty and truthful answers by the
insured lies at the foundation of the contract of insurance,
imposing upon him the duty and obligation of making truthful
answers to questions Avhich are calculated to bring knowledge
to the insurance company as to the physical condition of the
applicant which would enable it to determine whether the appli-
cant will make a suitable risk for it to issue a policy of insurance
upon.
It is the duty of an applicant, and it was the duty of the
insured in this case, not to conceal the fact that he was treated
by a physician, or that he consulted a physician, if he did so
conceal these facts and you so find under the evidence. It is
his duty to disclose to the company the last time or times he
consulted a physician, truthfully and honestly, and it is his
duty to disclose what disease, if he knows, he was suffering from
and he did so consult a physician.
Because the law presumes in the absence of proof to the con-
trary, that the cont'racts of men are honestly made and in good
faith, the burden is cast upon the one attacking the good faith
of such a transaction to prove it. And th(> 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 Tn<l. 303. 36 Am. Rep. 108; Biffelow, Fraud. 13;
Hunter v. Mc-Lau;,'lilin, 43 Ind. 38, 9 Ind. 572; 4 Blackf. .57.
sDeminp v. Darlinj,', 148 MaRS. .504, 2 L. R. A. 743; Dealers talk, .53 Cyc.
20, 41 Am. Rep. 21.5, 19 Am. Rop. 315.
1552 INSTRUCTIONS TO JURY.
that term is understood in law, and as explained to you in these
instructions, or whether it was the statement of a fact or facts,
the subject of false representation in law. There is too much
difficulty underlying the philosophy of the distinction between
opinion and fact, the subject of false representation, as found
among the authorities to warrant much further reference thereto
in these instructions to a jury. It is sufficient to state that each
case must depend upon the special facts attending the same, and
particular rules can seldom be framed to reach them, and
general rules may have only a remote bearing. I have, however,
as best I could, endeavored to so state the general rules in such
a way as to draw your attention thereto as they bear upon the
special circumstances of this case.
The jury are aware that you will have to determine which
view of the question of the quality and capacity of the machines
in question you will take, as disclosed by the conflict in the
testimony or as disclosed by the evidence; whether the one
which will render the statements of plaintiff false as false repre-
sentations, and to the extent that you may find that the plaintiff
made them with knowledge of their falsity, and with a dishonest
intention and purpose to create a clear impression and belief on
the part of the defendants of the existence of a fact or facts,
which if true, would be sufficient to influence their conduct in
taking the machine, rendering the plaintiff responsible therefor
to the extent of denying it relief ; or, whether you will find that
they were mere expressions of commendations as in "dealers
talk" and falling within the classification of opinion, Avhich will
prevent plaintiff from recovery in this action. But the jury
may consider whether a part of the language used comes within
the latter classification — opinion — or whether a part comes
Avithin the former — false representation. The requirement of
the law being that the statement must be sufficient to influence
conduct, the statement, though partaking of the nature of an
expression of an opinion by way of commendation of the subject
matter of a proposed contract, yet may come within the above
requirement, when made by one having superior position and
FRAUD — ^FALSE REPRESENTATIONS, ETC. 1553
info naat ion. and being sufficient to influence conduct rendering
the pereon making the same liable for the misrepresentation.-'
A representation is false in contemplation of law as well as
in morals if it is false in a plain, practical sense, that is, if it
would be apt to create a false impression upon the mind of an
average man, and constitute a material inducement in the
transaction.
9. Circumstances may cstahlish falsity. Knowledge of the
falsity of a representation found to be false, and the purpose
and intent with which the same may have been made, need not
be proved by direct evidence, but may be inferred from the facts
and circumstances appearing in the evidence. That is, if one
stands in a peculiar situation in regard to the facts, the same are
specially within his reach and knowledge, and the falsity being
established, the jury may reasonably infer that he had knowledge
of the falsity, and that he intended to deceive, and it is not
incumbent upon the party with whom he dealt to prove knowl-
edge by direct evidence.*
Now, gentlemen, in the light of these instructions you will
determine whether the statements were false representations in
the light of and within the meaning of the law as given you in
tliese instructions. If you find that they are not, you will at
once find in favor of plaintiff and proceed to consider the
question of damages. But if you find that they were false repre-
sentations, you will tlien proceed to determine whether they were
material in the transaction, and whether defendants nulled upon
the same to their disadvantage.
10. Mvst he material and relied vpon. The representation
must have Ijccn material, that is, it must have operated as one
of the inducing causes in influencing the action of defendants
in making the contract.
And the representation must liave been i-clied u])()n and
acted upon by defendants to their injury to operate as a defense
in this action. The law will not take notice of the false repre-
•' Wilson V. Nichols, 72 Conn. 173.
" 2(5 X. Y. 117, 53 Ala. IT).-}, 10 Cush. 392.
1554 INSTRUCTIONS TO JURY.
sentation if it had no material influence upon the action of
defendants. The only question upon this point is whether the
representation made by plaintiff was adequate to influence, and
did influence defendants, not whether it was the sole inducement
to the action taken; if it was sufficient to influence defendants
to some real extent, that is enough. The law does not undertake
nicely to measure the extent of influence.
The jury will look to all the evidence bearing on this point,
consider the nature of the representation itself in the light of
the nature of the transaction, the situation of the defendants,
their desire in the matter, their knowledge, if any, of the customs
and course of business of those undertaking to supply persons
with pea viner machines, in letting them out to their customers,
the ability of defendants to secure such machines. And the jury
may look to the facts and circumstances occurring subsequently
to the making of the contract, to the conditions and circum-
stances connected with and surrounding the cancellation of the
contract, and the causes operating upon the minds of the defend-
ant's in the cancellation of the contract with plaintiffs.
The defendants claim that they did not learn of the alleged
falsity of the statements and representations until some time
after the contract was made. Nevertheless if they were false,
and defendants believed them, and relied upon them, in whole
or in part, that would be sufficient.
If you find that the representations were false, that they were
material, and that the defendants relied in whole or in part
upon the same, then your verdict should be for the defendants.
But if you find that defendants did not rely upon the represen-
tations, even though they were false, their mere falsity, wnthout
reliance thereon, would not operate to discharge them from
liability in this action.
Now, gentlemen of the jury, if the falsity of the statements of
plaintiff, as false representations in law — as defined and
explained to you in these instructions — and reliance thereon by
defendants, are not established by a preponderance of the
evidence, your verdict must be for the plaintiff. And in such
case you will award plaintiff such compensation by way of
FRAUD FALSE REPRESENTATIONS, ETC. 1555
damages as will justly compensate it for the breach of the
contract entered into by the parties/
5 The Pillmore-Anderegg Co. r. Crites, et al., Franklin Co. Com. Pleas,
Kinkead, J. Affirmed by Circuit Court.
Sec. 1804. Fraud in sale of stock in proposed company.
Rather complete charge embracing :
1. Burden of proof.
2. Degree of evidence required.
3. Proof of intent and purpose — Circumstantial evidence.
4. Declarations — Consideration hy jury.
5. Failure of party to offer evidence or make explanation
naturally to he expected of him.
6. Failure to call ivitness.
7. Jury may reason from probabilities.
8. Failure of party to recollect important facts.
9. Fraud defined and explained — Act capable of two con-
structions, one frandident, another not.
10. 3Iust be relied upon.
11. Representation must be to a material fact.
12. Must be past or existing fact.
13. Puffing.
14. Promises — When fraudulent — When not.
15. Must be relied upon.
16. Knou'ledge of complainant — His duty to be prudent and
careful.
17. Whether uritten contract of previous representations
relied upon.
1. Burden of proof. The .sole question is whether fraud was
practiced or not. The court instructs the jury that fraud is
never presumed, but must be proved, to entitle a party to relief
upon the ground that it has been fraudulent, and the presump-
tion of law is that the business transactions of every man are
done in good faith and for an honest purpose; and anyone who
alleges that they are done in bad faith, or for a dishonest purpose,
takes upon himself tlie burden of proving by specific acts and
circumstances tending to prove fraud, that such acts were done
in bad faith.
1556 INSTRUCTIONS TO JURY.
2. Degree of evidence required. The degree of evidence is
like that prevailing in ordinary civil actions, it being necessary
for plaintiff to establish his claims by a preponderance of evi-
dence, which is the greater weight of credible testimony.
3. Proof of intent and purpose — Circurnstantial evidence. The
act or acts charged, involving the question of intent and purpose
with which it is claimed that the defendant did the thing alleged,
the court states to the jury that this may be made out either by
direct and positive testimony, or it may be shown by circum-
stantial evidence as well. Facts and circumstances may be shown
from which the inference of fraud which is alleged, may
be drawn by the jury. Fraud may be made to appear by
marshalling the circumstances surrounding the transaction by
deducting therefrom the fraudulent purpose,| when it may
reasonably be drawn therefrom. If the circumstances which are
proved by a preponderance of the evidence are such as to warrant
the jury in believing that the fraud charged has been committed,
they may so find.
In ascertaining the purpose and intent of the defendant the
jury may consider the conditions respecting the lands in question,
and the title thereto, at the time the representations were
claimed to have been made ; you may consider the written con-
tract of subscription which was prepared by the defendant,
as well as all other documentary and other evidence.
4. Declarations — Consideration hy jury. It is within the
province and duty of the court, without any inference that the
court is in any degree expressing an opinion in the matter, to say
to the jury that evidence of oral declarations of parties should
be received with caution ; the jury may consider the liability of
the human mind to err in recollecting and repeating statements
and declarations made by persons ; the jury may take into
account the fact that such evidence is sometimes subject to
imperfection and mistake, because the party making the same
may not have clearly expressed his meaning, or the witness may
not have properly understood him ; and it may happen that the
witness, by unintentionally altering a few of the expressions
really used, gives an effect to the statement or declaration
FRAUD F.U.SE REPRESENTATIONS, ETC. 1557
completely at variance with what the party actually did say.
Such evidence, when clearly proven is entitled to as much con-
sideration by the jury as any other. It is within the sole
pro\'ince of the jury to weigh such evidence and to give it such
consideration to which it is entitled, in view of all the other
e^-idence in the case. It is the duty of the court simply to state
to the jury that such e\'idence should be received with great
caution and scrutiny.
5. Failure of party to ojfcr evidence or make explanation
naturaUy to he expected of ]ii).i. Wliere evidence tends to fix
a liability on a party who has it in his power to offer other
evidence which, if there is in fact no liability, would naturally
be in existence and within the power or control of the one
sought to be charged, and whose interests it would naturally
be to produce it, and Avithout satisfactory explanation, he fails
to do so, the jury may draw such inferences therefrom as its
judgment may warrant. It is an inference of fact for the jury
and not a presumption of law.^
6. Failure to call witness. The general rule is that a party
is not to be prejudiced by his failure to call a witness who is
equally available to the other party.^
7. Jury may reason from, prohahilities. Juries may often
reason according to probabilities, drawing an inference that
the main fact in issue existed, from collateral facts not directly
proving, but strongly tending to prove its existence.^
8. Failure of party to recollect important facts. Wliere a
party testifies to an important transaction in his own interests
as well as in the interests of others, which may have been
attended by circumstances calculated in the opinion of the
jury to make a strong impression, but such party fails to
rf'collect and testify to matters which the jury may believe if
they had been answered might have had a material bearing on
the questions at issue, the jury may make such inferences
1 !Nroore on Facts, sees. 563, r)64.
2 Moorn on Facts, rpc. 567.
3 Moore on Facts, sec. 566.
1558 INSTRUCTIONS TO JURY.
therefrom as in its judgment it deems proper and warranted
by the facts and circumstances shown by the evidence.*
9. Fraud defined and explained — Act capable of two con-
structions, one fraudulent, another not. Fraud is not to be pre-
sumed; on the contrary the law presumes that all men are fair
and honest, that their dealings in good faith, and without inten-
tion to defraud. I now further state to you that where a
transaction is called in question which is equally capable of
two constructions — one that it is fair and honest and one that
it is dishonest — then the rule of law in such case is that the
fair and honest construction must prevail, and the transaction
called in question must be presumed to be fair and honest.'
10. Miist he relied upon. If one represents a fact as true to
another which he knows to be false, and makes the representa-
tion in such a way, and under such circumstances as to induce
a reasonable and prudent man to believe that the matter stated
is true, and the representation is meant to be acted upon, and
the person to whom it is made, believing it to be true, acts upon
the faith of it, and suffers damage thereby, this is fraud
sufficient to sustain an action for deceit.
11. Representation must he to a material fact. A misrepre-
sentation to be fraudulent must be as to a material matter of
fact; it must be false, it must be known to be false by the party
making it, or it must be made recklessly without any loiowledge
of its truth, and as a positive assertion ; it must be relied upon
by the person to whom it is made ; it must be made with the
intention that it be acted upon by the party to whom made, and
constitute the inducement to enter into the transaction ; it must
work injury or result in damages to the person relying thereon.
If all these circumstances concur, they constitute fraud. The
absence of any one of them is fatal to recovery.
12. Must he past or existing fact. To constitute fraud the
misrepresentation complained of must have been as to a fact,
either a past fact or an existing fact.
4 Moore on Facts, sec. 830.
sSchraeder v. Walsh, 120 111. 410: Hill v. Reifsnider, 46 Md. 555; Tomp-
kins V. Nichols, 53 Ala. 197. ^
FRAUD — FALSE REPRESENTATIONS, ETC. 1559
13. Puffing. Wliat is ordinarily understood as puffing is not
fraud ; that is, undue commendation not amounting to actual
misrepresentation of past or present material facts does not
amount to fraud.
Such boastful assertions, or highly exaggerated descriptions
or claims do not amount to fraudulent misrepresentations or
deceit. An expression, of opinion or belief is not a proper
representation of fact, and though false, does not amount to
fraud and is not actionable.
14. Promises- — When fraudulent — When not. Tlie test of
deception and fraud being a misrepresentation of an existing or
past fact or transaction, an engagement or promise to be
fulfilled in the future is not a representation. A promise, or
the statement of something to be done in the future, though
fraudulently made, even with no intention of performing the
same, will not ordinarily and in the absence of peculiar circum-
stances rendering it otherwise, render the one making them
liable. On the other hand, there may be circumstances under
which representation of things to be done in the future — which
are of the nature of promises, may be actionable.
For example, where representations and promises are made
that certain things will be done in the future, and are so made
in connection with and as part of false representation of past
and existing facts, and concomitantly therewith, and they are
of such nature as to form and become an essential and material
part of the representation of the past or existing fact, so that
the latter representation Avoula be unavailing as an inducement
without the fraudulent promise to the one to whom they are
made to act thereon, and the alleged fraudulent promise con-
stitute such a material inducing cause in the transaction, as
to be and constitute a material part of the device or medium
through which the fraud is committed, and there is no intention
to perform or carry out such promises, then they may, in con-
nection with the representation of the existence of past and
existing facts, constitute actionable fraud.
15. Must he relied upon. Tf the representations were false,
to warrant recovery by plaintifT it is incumbent upon him to
1560 INSTRUCTIONS TO JURY.
show that he relied upon the alleged false representations, or
any one of them, as a material inducing cause in the signing
of the subscription contract and in the payment of the money.
It is not necessary that plaintiff should have relied exclusively
upon defendant's statement, that they should have been the sole
inducement to doing the act complained of, or resulting in his
damage. It will be sufficient if such representations if they
were made and were false, or any one of them, exerted a material
influence upon his mind, although they constituted only one of
several motives which acting together produced the result.
16. Knoii-iedge of complainant — His duty to he prudent and
carefid. If a person to whom a representation is made knows
that it is false, he can not treat the same as a fraud for any
purpose, for a man can not rely on the truth of a representation
which he knows to be false.
The law exacts of anyone who claims that he has relied upon
and has been misled by alleged false representations, that he
shall himself have been prudent and cautious. This principle
finds frequent application in sales and transfers of property
which is open to inspection of both parties. And there is no
reason why it should not be applicable to this transaction, even
.though the property may not have been within reasonable
opportunity of inspection, and though the defendant have had
superior knowledge of conditions.
The complaining party, the plaintiff here, in an action of
deceit must show that he has been prudent and careful in his
understanding and ascertainment of the facts and especially in
reading and signing contracts which may contain statements
of alleged facts inconsistent or at conflict with the represen-
tations claimed to have been made and relied upon; it is
incumbent upon him to show that he has not been misled
through any fault or neglect on his part. He must show that
he has not omitted to exercise ordinary care to guard against
deception and fraud, except where he may be thrown off his
guard, or where he has been led to do so by the other party."
cKinkead, Torts, sec. 732, 91 111. 343.
FRAUD FALSE REPRESENTATIONS, ETC. 1561
17. \Micthcr written contract or previous rcprescntatians
relied upon. Wlien a contract is prepared and signed by parties
as a result of previous negotiations and representations between
them which is intended to constitute the contract which is to
be made as a result and embodiment of their agreement and
contract, and the party who is complaining that he was induced
to make it and to perform it on his part by means of previous
false representations, read the contract, and if the contract
contains statements of facts at variance with the previous false
representations of which he complains, the jury may make such
inferences therefrom as its reason and judgment suggest touch-
ing the question whether the plaintiff relied upon the contract
or whether he relied upon the alleged false representations.
Tf the conduct of plaintiff in signing the subscription contract
and the payment of his money was not influenced bj'- the false
representations, if any were made, if he was informed of the
real facts of the California project, or if he acted solely on the
written contract, and upon the statements and promises in
paying his money, and not to any extent upon the alleged false
representation, he can not in that event recover.
But the jury is instructed that it is not essential to recovery
by the plaintiff, that it shall appear that he relied upon each and
all cf the alleged false representations. If he relied upon one,
and acted upon tliat. it would be sufficient.
It is not disputed that there is an alleged false representa-
tion of an alleged existing fact claimed to have been made as
to which the written provisions of the contract are silent. If
the jury believe that there was a material representation, falsely
made, independently of the facts contained in the written con-
tract which you may, or may not believe to be sufficient to put
him upon his guard as to the actual facts, and you believe that
he may have been negligent in this respect, and you may infer
that he relied upon the eontract rather than upon the alleged
representation, you will cnnsirler whether the other false alleged
represeutation. as to which the contract is silent. Avas or was
not made, and if it was made, whether plaintiff relied upon it
to his damage.
1562 INSTRUCTIONS TO JURY.
If you find that the plaintiff in performing his part of the
contract did not rely upon any alleged false representation or
representations, then he can not recover.
To entitle the plaintiff to a verdict at your hands he must
not only show by a preponderance of evidence that the represen-
tation or representations were made, that the same were false,
and known to be so by defendant, and that plaintiff relied upon
them to his damage.
If you should find any of the alleged representations were
made by defendant, that they were false, and known to be so
by him, or that they were recklessly made by the defendant
without knowledge, that they were relied upon, to his damage,
your verdict should be for the plaintiff. In such case you should
assess to plaintiff such damages as you may find him to have
sustained, not beyond the amount claimed in his petition.
The measure of the damages which plaintiff may have
sustained, if you find in his favor, would be the difference
between what plaintiff received, and what he paid to the defend-
ant. In considering what plaintiff received, the jury is instructed
that the plaintiff had the right to decline to receive the stock
tendered him, which he did as the undisputed evidence discloses.
I am unable to state to you gentlemen whether he legally or
equitably is entitled to any interest in any property or not
because there is no evidence here upon which the court may wet
in this matter. I can only say that if you find that the plaintiff
received nothing for his money, the measure of his damages
would be the amount of money so paid by him to the defendant
with interest thereon at six per cent, from .
Now gentlemen, if you find that defendant made no material
misrepresentation or misrepresentations to the plaintiff, as
claimed, or if you find he did make them, or any one of them,
that the plaintiff became aware of the falsity of them, or ought
to have been put upon his inquiry and knowledge, and that he
relied upon the terms and conditions of the contract, then your
verdict should be for the defendant.'^
7 Peirano v. Westwater, Franklin Co. Com. Pleas, Kinkead, J.
FRAUD FALSE REPRESENTATIONS, ETC. 1563
Sea 1805. Fraudulent declaration of dividends by directors
of corporation — Action against directors for
loss by purchaser of stock,
1. Fraud — Burden of proving.
2. Intent in fraud — Wrongful conduct supplies.
3. Fraud defined — Knowledge of falsity, actual or imput-
able, essential.
4. Same — Jury to determine whether statements made
knowingly or recklessly.
5. Same — Fraudulent dividend — Duties of directors of cor-
poration — Care required.
6. Same — When directors not chargeable with knowledge of
books.
7. Same — Directors voting or assenting to declaration of
dividend liable — When — The statute making dividend
unlawfxd when. .
8. Same — Liability of directors for acts of manager of
corporation.
9. Same — Misrepresentation to be fraudulent m,ust be
material and relied upon.
10. Same — Measure of damages.
1. Fraud — Burden of proving. Fraud is never presumed, but
must be proved by a preponderance of the evidence; the pre-
sumption of law is that the business transactions of every man
are done in good faith and for an honest purpose, any one who
alleges that such acts are done in ])ad faith, or for a dishonest
purpose takes upon himself the burden of proving 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 Ix'cn overcome.^
2. Intent in fraud — Wrongful conduct supplies. While intent
is an ingredient of fraud, according to tlie (h^finition just given,
the jury is instructed that where the party or parties charged,
bfivf faih'd to cxcrciso oT-dinary care snfficicnt to h^rn or know
thf trutli or falsity of tlie representations complained of, such
1564 INSTRUCTIONS TO JURY.
wrongful conduct supplies the intent essential to constitute
fraud.
To enable the jury to apply this legal rule as to fraud to the
facts as you may find them from the evidence, your attention
is directed to the undisputed evidence that defendants were
directors of the Company ; that as such they declared a
dividend, etc. The circumstances under which the dividend was
declared, the justification therefor, and the facts and circum-
stances relating to the sale of stock to C. are in dispute, and
the ultimate facts concerning these transactions are for you
to decide.
It is charged that the dividend was fraudulently declared,
when the company was insolvent, for the purpose and intent to
deceive the public and plaintiff in the purchase of stock; that
this fraudulent representation together with other fraudulent
representations as to the condition of the company were made
by defendants to plaintiff with intent to defraud him and to
induce him to purchase the stock.
The defendants claim that they did not' know that the com-
pany was insolvent and that it could not legally declare a
dividend, and that they had reasonable ground to believe that
the company was solvent and had the right to declare the
dividend, that as directors they acted prudently as ordinarily
prudent persons, etc.
The jury will determine the fact, etc.
3. Fraud defined — Knowledge of falsity, actual or imputable,
essential. A fraud consists in obtaining an undue advantage by
means of some act or omission which is unconscientious or a
violation of good faith ; the act or omission must be willful ; in
other words it must be knowingly and intentionally done.
There can be no fraud, or misrepresentation without some
moral delinquency ; there is no actual legal fraud which is not
also a moral fraud. This immoral element consists in the
necessary guilty knowledge and consequent intent to deceive,
sometimes designated by the technical term scienter. No mis-
representation is fraudulent in law, unless it is made with actual
FRAUD ^FALSE REPRESENTATIONS, ETC. 1565
knowledge of its falsity, or under such circumstances that the
law must necessarily impute such knowledge to the party at
the time it is made.
A party making an untrue statement, having at the time no
knowledge whatever on the subject, and no reasonable grounds
to believe it to be true, is guilty of fraud, and his claiming that
he believed it to be true can not remove the fraudulent character.
A definite statement of what the party does not know to be true,
where he has no reasonable grounds for believing it to be true,
will, if false, have the same legal effect as a statement of what
the party positively knows to be untrue.
Nothing short of fraud will sustain an action like this. Fraud
is proved when it is shown that a false statement or representa-
tion has been made (1) knowingly, or (2) without belief in its
truth, or (3) recklessly, without observing ordinary care in
learning whether it be true or false. Tq prevent a false state-
ment being fraudulent, there must be an honest belief in its
truth, found upon reasonable ground, such as would warrant a
reasonably prudent person, under the circumstances — consider-
ing his duty in the position which he occupies — to believe in
the truth of the statement.
4. Same — Jury to determine whether statements made
knminngly fraudulent or recklessly so. It is for the jury to
determine whether defendant made the alleged misrepresenta-
tions knowingly, or without reasonable ground to believe in
their truth, or whetlier the statements were made recklessly
with no knowledge of the trutli. You will also determine
whether defendants had actual knowledge of the insolvency of
the corporation, and its ability to declare a dividend.
If the jury find that the defendants did not liavc actual
knowledge that the dividend was fraudulently deelared, it will
then be your duty to consider the conduct of the defendants
as directors so as to determine whether they Ix'lieved tliat the
company was solvent and had the right to dc^clare the dividend,
and whether such belief was founded on reasonable grounds.
1566 INSTRUCTIONS TO JURY.
If you find that they had actual knowledge of the alleged
fraudulent dividend, there would then be no occasion to con-
sider the grounds of belief in the solvency of the corporation.
5. Same — Fraudulent dividend — Duties of directors of cor-
poration — Care required. There is a distinction between the
care required of directors of a commercial corporation and that
exacted of a banking corporation, due to the difference in the
character of the business.
Directors of a corporation are what are termed in law as
mandatories; that is, they serve without compensation, and for
this reason the measure of their responsibility is varied and
lessened. Directors who serve without compensation are not
expected to give as much time, care and attention to the business
of the corporation as if they were being paid for their services.
Directors of a commercial corporation whose services are
gratuitous, and whose duties are to attend meetings of the
board of directors, and to hear reports of officers and committees
and to such other matters relating to the general policy of the
business of the corporation, owe, and are bound to observe such
care as the nature of the business reasonably requires, such care
as directors of such corporations are ordinarily accustomed to
exercise under similar circumstances and conditions.
Ordinary care means that degree of care which persons of
ordinary prudence ordinarily exercise under similar circum-
stances.
Directors of such corporations from the very nature of things
can not give such time and personal supervision to the affairs
of the corporation, as they would to their own business, but
must place the active management of the business in the hands
of persons specially designated for that purpose. Directors of
corporations in such cases can not be held as insurers of the
fidelity of its agents whom they have appointed, and can not be
held for false reports and representations made by such agents,
or for false entries in the books of the corporation, unless the
failure of such directors to learn and knoAv the falsity of such
reports, entries and representations are the consequence of or
are due to their failure to observe such care, prudence and fore-
FRAUD ^FALSE REPRESENTATIONS, ETC. 1567
sight as would ordinarily be necessary to be observed in such
cases, or as would be reasonably necessary to enable them to
learn and know the truth or falsity thereof. Such directors
are required to exercise such care as ordinarily prudent and
diligent men would exercise in order to reasonably learn the
truth of anj^ reports or representations made by their officers.
6, Same — When directors not chargeable with knowledge of
hooks. The control and custody and the supervision of the books
of accounts of the corporation may be properly confided to the
officers and agents of the corporation, by the directors. And
where the latter have acted in good faith and with ordinary
diligence in the general supervision of the affairs of the company,
and have been unable to observe the true condition of the
corporation as shown by its books and records, they are not
chargeable with knowledge of all the affairs of the corporation,
as shown by its books and papers; they are not, under such
circumstances, charged with knowledge of the falsity of entries
in the books, or with the falsity of any reports falsely made to
them by their officers and agents. Their position does not
require them to devote themselves to the details of the business,
or to look with suspicion on the conduct of their officers and
agents ; they have a right to assume that they are honest and
faithful, where no circumstances transpire to excite doubt or
suspicion. * * *
If the jury finds that defendants had no knowledge of the
falsity of the false representations and false dividends alleged
in the petition, and had no reasonable ground to disbelieve the
truth thereof your verdict should be for the defendants, etc.
That is, if you find that they had no knowledge of the falsity
of the representation, and had on the contrary reasonable ground
to believe in the solvency of the corporation, and the legality
of the dividend, and in the truth of the alleged misrepresenta-
tions, your verdict should be for the defendants.
But if you find that defendants liad actual knowledge of the
falsity of the dividends as well as of the allegcnl misrepresenta-
tions, or if they had n(^ such knowledge, and liad no reasonable
ground to believe in the truth thereof or in tlie validity of the
dividends etc.. your verdirt should be )'(>r 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 denie<l.
Sec. 1823. Secrecy must be observed — Another form.
Your oath makes it your imperative duty, gentlemen of the
jury, to keep rigidly in confidence the counsel of the prosecut-
ing attorney, his assistants, your fellow jurors, and yourselves,
until compelled in a court of justice to reveal it. There is no
obscurity in that language, and in that portion of your oath.
It means that you are not at liberty to communicate to any
person what has been done in the grand- jury room ; it means
that you are not at liberty to tell any person what has been
done or said in the grand-jury room, either by the prosecuting
attorney, or by his assistants, or l)y your fellow jurors, or by
yourselves. It means that you must have courage enough to
refuse to permit anyone to question you about the proceedings
in the grand-jury room, or to suggest or ask you to vote for or
against the indictment of anyone.
As a rule, legal proceedings do not avoid, but rather seek
daylight. The proceedings of the grand jury are an excep-
tion. Accusing a person of a crime which may blast his repu-
tation and cover him with ignominy is a grave matter, and
should not be done except for sufficient reasons and for the
most momentous cause. It has been the policy of the common
law ever since the Great Charter to protect guiltless persons
from accusation. One of the objects of the institution of the
grand jury was to first have privately exn mined accusations of
crime and ascertain whether there is a probability of their truth
before giving them publicity in the form of an indictment.
Again, it is true that in every community there is a class of
persons who are eager to start criminnl prosecutions upon inade-
quate evidence. Sometimes this is done from honest motives;
sometimes from })nse. niiilieious, niid eon-iipt motives. If the
grand jury wen; not rcjquired to keep secret their deliberations.
1596 INSTRUCTIONS TO JURY.
what occurs in the grand-jury room, you can readily see that,
at every term of court, there might be a large crop of unjustly
damaged reputations.
Again, when a criminal prosecution is started before the
grand jury, this obligation of secrecy should be observed to pre-
vent the accused from escaping justice, from escaping condign
punishment. If they could learn, by the grand jury not keep-
ing the secrets of the grand- jury room, that they are to be
indicted, opportunities would be afforded for their escape. It
is the usual mode of beginning prosecutions for an arrest to be
made upon a warrant issued by a magistrate, and a preliminary
examination to be had before the magistrate, where the accused
can meet his accuser and have counsel to defend him and exam-
ine his witnesses; but the grand jury is not limited by law in
its investigations to cases thus initiated. A criminal prosecution
may have its genesis, its beginning, before the grand jury. I
mention that because I M^ant to further illustrate that statement
I have made that it is necessary to observe this part of your
oath in order to prevent that class of criminals from escaping
punishment.
Again, if this obligation of secrecy was not enjoined by law,
and grand jurors did not keep it, there would be another way
in which justice might be defeated. It w'ould enable the friends
of those who were accused before the grand jury to bring to
bear 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 the punishment of the guilty. It is not an
idle obligation that you take to keep these matters secret. It is
not a meaningless obligation ; it is just as obligatory upon each
grand juror as is the oath of a witness, to tell the truth, the
whole truth, and nothing but the truth. ^
1 Grand juror must not disclose tliat an indictment lias been found against
any person not in custody. R. S., sees. 135,56. 1.3569. He can not
state in court how he voted on any question. R. S., sec. 13570,
CHAPTER CVI.
HAEBORING FEMALES.
SEC. sex:.
1824. House of ill-fame defined — 1825. Good repute for chastity de-
Harboring female of good fined,
repute in — Harboring de-
fined.
Sec. 1824. A house of ill fame defined — Harboring a female
of good repute in — "Harboring" defined.
A house of ill fame is alleged to have been kept by this de-
fendant, and that means she was the keeper of a house which
persons of opposite sexes commonly used and resorted to for
purposes of prostitution and lewdness. Wliether or not it was
such a house at the time named in the indictment you have a
right to take into consideration the general reputation in the
neighborhood where she lived as well as the testimony of any
witne^es, inchiding defendant herself, and determine from the
whole proof whether or not at the time named in the indictment
this defendant was in fact the keeper of a house of ill fame.
The indictment speaks of harboring a person, which means
shelter afforded and a place of asylum furnished to such persons
as came to her, and if you find from the proofs of the case at the
time named in the indictment that this defendant furnished
A. B. and C. D. a room to stay in for the purpose of lewdness you
may find for the purposes of this case she was harbored.^
1 Collings, J., in State v. McCandless, Seioto Co. Com. Pleas. Approved
by Circuit Court at March Term, 1897. The indictment was
broufrht under Vol. 92, O. L. 207, and the defendant charged with
harboring a female person of good repute for chastity under 18
years.
Sec. 1825. "Good repute for chastity" defined.
It is cliar^cd in the iiulictmcnl and f(ir (M't-lain purposes it
must appear that the woman therein named, A. B., at the timo
1597
1598 INSTRUCTIONS TO JURY.
of the occurrence alleged in the indictment was a person of good
repute for chastity, which is to say that among the people who
knew her in the community where she lived and that persons
with whom she associated knew her general reputation for
chastity, morality and womanly behavior was not questioned or
suspicioned. In order to determine whether or not, at the time
of the occurrence alleged, she was a person of that repute, you
have a right to take into consideration the testimony of the
persons who were acquainted with her and with whom she asso-
ciated, and what they say about her general standing and repu-
tation in the community where she resided, as well as the con-
duct of the woman herself, and determine from the whole proof
whether or not she, at the time of the occurrence, was a person
whose standing and reputation for chastity where she lived was
good. If you find that to be a fact, then you may say she was
a person of good repute for chastity.^
1 Collings, J., in State v. McCandless, Scioto Co. Com. Pleas. Approved
by the Circuit Court, March Term, 1897. The indictment was
brought under Vol. 92, 0. L. 207, amending Code, sec. 7023, and the
defendant cbarped with harboring a female person of good repute
for chastity under 18 years of age.
CHAPTER CVII.
HOMICroE— MURDER IN THE FIRST AND SECOND
DEGREE AND MANSLAUGHTER
SEC.
SEC.
1826.
Preliminary statement con-
1845.
cerning duty and obliga-
1846.
tion of jurors.
1827.
The indictment.
1828.
Plea of defendant — Not guilty
and of insanity.
1847.
1829.
Burden of proof on plea of
not guilty.
1848.
1830.
Burden of proof of insanity.
1831.
Degree of evidence required
to prove insanity — Pre-
1849.
1831a. Insanity.
1850.
ponderance.
18.32.
Presumption of innocence.
1851.
1833.
Reasonable doubt.
1834.
Circumstantial evidence.
1852.
1835.
Jurors must reason together.
1836.
Credibility of witnesses.
1837.
Reputation of defendant for
peace and quiet.
1853.
1838.
Essential elements to be
proven.
1854.
18.39.
Charge of first degree murder
— Also includes lesser de-
1855.
grees.
1840.
Law as to homicide — Murder
in first and second de-
1856.
gree, and manslaughter
1857.
defined.
1841.
Intent.
1858.
1842.
Malice.
1843.
Delibcriition and premedita-
tion.
1844.
Murder in second degree —
1 859.
Distinguislied from m>ir-
(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 <lo so at
his peril; anrl must cither prove tlic tnitli of what he says, or
answer in damages to the party injured.'
1724 INSTRUCTIONS TO JURY.
"The bill of rights in the Constitution of Ohio declares that
every citizen may freely speak, write and publish his sentiments
on all subjects, being responsible for the abuse of that right, and
no law shall be passed to restrain or abridge the liberty of speech
or of the press. 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 respon-
sibility in the matter of a publication are no more and no less
than that of others under like circumstances."
1 Jones 17. Ohio State Journal Co., Franklin county. Rogers, J.
2 Dean v. Commercial Gazette Co., Hamilton county. Hunt, J.
Sec. 1947. Constitutional right of liberty of speech and of
press — Another form — May not trifle with
right of reputation.
As to the liberty of speech and the press, the people of Ohio
are so jealous of the right of free speech and the free press, that
we have provided in our constitution : ' ' That every citizen may
freely speak, write, and publish his sentiments on all subjects,
being responsible for the abuse of the right; no law shall be
passed to restrict or abridge the liberty of speech or of the
press." * * *
While calling your attention to the constitutional provision,
we must not omit to say that thisjiberty to freely speak, write,
and publish one's sentiments on all subjects is not inconsistent
with the protection due to private character, and is coupled
with an express declaration of its responsibility for its abuse.
It has been well defined as consisting in the right to publish
with impunity the truth with good motive and for justifiable
ends ; but this liberty or privilege can not be justified when it
is exercised to publish libelous matter to the injury of another.
So far as this action is concerned, this comprehends the privi-
lege of the defendant publishing company to publish the article
in contention.*
No person or newspaper has any right to trifle with the
reputation of any person, or by carelessness or recklessness to
LIBEL AND SLANDER. 1725
injure the good name, profession, or business of another by the
publication of libelous matter. It can not do so without answer-
ing for the libel in damages; and the greater the influence of
the author, if a private individual, and the greater the influence
and circulation of the paper, if by a newspaper, the greater
the wrong, and makes the duty more imperative to be careful
and circumspect in the matter of the publication. No popular
greed for defamatory news can be an excuse for its publica-
tion; and in no way can it relieve the defendant from legal
liability attaching to such publication. The newspaper bus-
iness like any other must be conducted with due regard to
the rights of othei-s. It is a wise rule of law that everj^one
should conduct himself and his own business affairs in such
a reasonable and prudent manner that others be not injured
thereby, and the prudence required is commensurate with the
hazards occasioned.
Publishers of newspaper articles are subordinate to this rule.
As already stated, the truth is privileged when publislied from
good motives and for justifiable ends, but the truth not having
been interposed as a defense in this action, the only effect to be
given to the evidence offered as to the truth of the alleged
libelous matter is to reduce the amount of damages. But this
evidence can not operate to defeat recovery for, at least, nominal
damages. * * * To reduce your verdict on this ground to
nominal damages the proof of the truth of the matter charged
should cover the whole of it. That is, it should be as broad as
the charge and show that the whole of it is truthful, for if any
part of it should appear from the evidence to be false, and that
part caused injury to the plaintiff, he would be entitled to
recover compensatory damages at least.^
1 Sof Cooley on Torts, 255, 217 as to li])erty of press.
- Voris, J., in Carrier v. Findley, Summit Co. Cora. Pleas.
Sec. 1948. Reasonable criticism may be made by newspaper.
The right to exercise reasonable criticism should be extended
liberally to the newspaper i)ress.
1726 INSTRUCTIONS TO JURY.
Just criticism, though severe, may be a great conservator of
the character and morals of the people. To truthfully and
fairly hold up to public view and condemnation, conduct that
is wrongful and detrimental to social well-being is a very useful
and important office of the newspaper press ; you are therefore
instructed that whenever the object of any newspaper publica-
tion fairly considered is not to injure reputation, but to correct
and to hold up to public condemnation that which is hostile
to morality and official integrity, does not come within the
definition of libelous matter, so long as the author or authors
keep themselves reasonably and in good faith within the line
of truthful and wholesome criticism.^
1 Voris, J., in Carrier v. Findley, Summit Co. Com. Pleas.
Sec. 1949. Duty of jury to decide whether it has libelous
tendency and effect — When,
It will be your duty to take the article submitted in evidence,
read it carefully in whole and detail, and decide as men of
judgment and experience if it had such a tendency and effect
as contended for by the plaintiff or any of these tendencies and
effects, so far as the reputation and character of the defendant
are concerned; or whether, on the other hand, as claimed by
the defendant, it can not be fairly said to have had such ten-
dencies or effect, or any of them.
If in your judgment the publication of the article in ques-
tion had no such tendencies and effect as have been mentioned,
it will be your duty to return a verdict for the defendant with-
out proceeding further in the case.
If, however, by reason of the publication of the article in
question, you should find that the plaintiff was injured in his
character and reputation, and has been injured as claimed in
the petition, then your verdict must be for the plaintiff, because
it is a presumption of law that anything stated in such publica-
tion derogatory or injurious to the character and reputation of
the plaintiff is false, and the law further presumes that the
defendant, in publishing the same, intended to cause whatever
injury naturally would and did result from such publication.
LIBEL AND SLANDER. 1727
Sec. 1950. Publication construed by court as libelous per se.
It being the duty of the court to construe the entire publica-
tion in connection with the pleadings, and to give the correct
rule to the jury, as to whether or not the alleged publication
is libelous per se, the court instructs you that, taking the
article as a whole and giving it the construction which its
language imports, the publication is in and of itself libelous,
or, as expressed in the law, libelous per ae. The language of
the article being libelous per se, the court instructs you that the
presumption is that such libelous matter was false and malicious,
and, if the plaintiff makes proof that such libelous matter was
published of and concerning him by the defendants, or any of
them, it is not necessary in the first instance in making said
publication.^
1 Jones V. Ohio State Journal Co., Franklin county. Rogers, J. Affirmed,
by Cir. Ct.
Sec. 1951. Jury to find whether article published of plaintiff.
Therefore, the first question which you have to consider is
this : whether or not the defendants or any of them published the
alleged libel of and concerning the plaintiff. If you find from
the evidence that the libel was published of and concerning the
plaintiff, by the defendants, or any of tliem, the defendants, or
any of them, so found by you to have published said libel of the
plaintiff are liable in damages therefor to the plaintiff for the
injury thereby sustained, unless such defendant or defendants
have established by a preponderance of the evidence the truth
of said publication ; for proof of the truth is a complete defense
to this action.
Sec. 1952. What is a publication, and who are liable as pub-
lishers.
The next two questions to wliich the court will advert are,
namely, what is a publication, and who arc liable as iMiblisliers
within the meaning of the law? By publication is meant the
communication of the alleged defamatory matter by first print-
1728 INSTRUCTIONS TO JURY.
ing it in a newspaper and then by circulating the newspaper
containing the matter, so as to bring the alleged defamatory
matter to the knowledge of one or more third persons (other than
the parties to the libel), who read and understood it.
With regard to those who are liable as publishers, the court
charges you that all who knowingly cause or participate in the
publication of libelous matter are responsible as publishers.
This includes all wlio in any wise aid, assist or advise, or are
directly concerned in the production of the defamatory matter
with a view to its ultimate publication, that is, all who are
instrumental in making or procuring to be made the defamatory
publication are jointly and severally liable therefor as publishers.
If, therefore, you believe from the evidence that through the
instrumentality of T. 0. S. J. Co., it printed and caused to be
circulated the newspaper carrying the alleged libel, you will be
warranted in finding it liable as the publisher thereof. In like
manner, if you believe from the evidence that S. G. McC. was
managing editor of the newspaper carrying said libel, and
participated in having the matter printed and circulated, you
will be warranted in finding him responsible as a publisher
thereof. Also, if you believe from the evidence that R. F. W.
lent his aid, assistance or advice to the ultimate publication of
the defamatory matter, or in any wise participated in procuring
its publication, you will be warranted in finding him responsible
as a publisher thereof. You will, therefore, consider all the
facts and circumstances adduced in the evidence at the trial
and determine whether or not the said defendants, or any of
them, were instrumental in procuring the publication to be made,
and if so, you are warranted in holding such as publishers. But.
if the defendants, or any of them, merely had knowledge of the
proposed publication and consented thereto, but had no authority
or control over the matter of its production or publication, and
were in no wise instrumental in its ultimate publication, he or
they, as the case may be, are not responsible as publishers thereof.
If in your inquiry to determine who of the defendants, if any,
are responsible as publishers you determine that one or more
LIBEL AND SLANDER. 1729
of the defendants are not responsible as publishers, that is, were
not instrumental in procuring the publication to be made, you
need not inquire further as to such defendant or defendants,
but will return your verdict for such defendant or defendants.^
1 Jones i\ Ohio State Journal Co., Franklin county. Rogers, J. Affirmed,
by Cir. Ct.
Sec. 1953. Truth as a defense — To be as broad as charge.
In order, however, that proof of the truth of said libelous
charges may constitute a complete defense, it is essential that
such proof of their truth must be as broad as the defamatory
charges contained in the article, and if the truth of one or more
of the defamatory charges is not made out by proof, the court
instructs you that the plea of the truth thereof, as alleged in
the second defense of T. 0. S. J. Co., will not be completely made
out; or, in other words, in such case, the defendant will fail to
justify. But, the court instructs you that even though
T. 0. S. J. Co. has not made out by its proof the truth of all
the defamatory charges in said article, if it has made out by
proof the truth of any part of such defamatory charges, to that
extent such proof is admissible and competent, in your con-
sideration of this case, in mitigation or reduction of damages
to be awarded the plaintiff.^
1 Jones V. Ohio State Journal Co., Franklin county. Rogers, J. AfTirnicd,
by Cir. Ct
Sec. 1954. Innuendo — Meaning ascribed thereby, for the jury.
Some of the allegad libelous matters pleaded in the plaintiff's
petition are set forth under what are termed in law, innuendoes.
The innuendoes, so called, are in parentheses, and usually begin
with the words ••meaning thereby," etc., and on your examina-
tion of the petition you will readily observe the matters to whieli
the court refers. An innuendo is a clause inserted in the peti-
tion containing an averment which is explanatory of the pre-
ceding words or statements. It is the office of the innuendo to
define the defamatory meaning wliicli tlie i>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-
prove<l. For interofitinfr and instructive ease and note on Ruhject,
fioe Williams v. Hunter, 14 Am. Dee. .^OT, C>0] ■ 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<l be-
fore the accident, in order to recover m.-hr tlu- doctrine of last
chance. In the Kassen case, liowever. the party was unable to
remove from the track so tliat his negligence could not be said t<>
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 <Miter-
tained by persons generally of ordinary tastes and sus('(^i)tibi]-
ities. The nuisance and discomfort irnist affect tlu' ordinary
comfort of human existence as understood by th(^ jx'ople in
the present state of enlightenment. The theories of scientific
1938 INSTRUCTIONS TO JURY.
men, though provable by scientific reference, can not be con-
trolling unless shared by people generally/
1 Everett v. Paschall, 61 Wash. 47, 111 Pac. 870, Ann. Cas. 1912, B. 1128;
Joyce on Nuisances, 19 ; Cols. Gas Light Co. v. Freeland, 12 O. !S.
392; Grover v. Zook, 44 Wash. 494, 12 Ann. Cas. 192, 7 L. R. A.
(N.S.) 582, 120 Am. St. 1012.
Sec. 2144. Degree of annoyance to constitute.
What amount of annoyance or inconvenience will constitute
a legal injury, resulting in actual damage, is a question of
degree, and must necessarily be dependent upon varying cir-
cumstances, and can not be precisely defined as matter of law,
but must be left to the good sense and sound discretion of the
jury.^ The court can only give you a rule which will serve
as a guard against an unreasonable exercise of that discretion.
You must be guided by the ordinary standard of comfort and
convenience, and not by particular or exceptional above or below
the ordinary standard. Regard should be had to the notions
of comfort and convenience entertained by persons generally
of ordinary tastes and susceptibilities. What such persons
would not regard as an inconvenience materially interfering
with their physical comfort, may be properly attributed, when
alleged to be a nuisance, to the fancy or fastidious taste of the
party. On the other hand, the charge of nuisance, if it be of a
thing offensive to persons generally, can not be escaped by show-
ing that to some persons it is not at all unpleasant or disagree-
able.-
By a material injury is meant one resulting in damages of a
substantial character or nature, not merely nominal, and which
are, in some cases, awarded to prevent a wrong from ripening
into a right by lapse of time.^
1 5 Ohio, 323, 12 O. S. 399.
2 Cols. Gas, etc., Co. v. Freeland, 12 0. S. 392, 399; see Bishop's Non.
Cont. Law, sec. 416, 44 0. S. 279, 22 O. S. 247, 253.
3 Crawford v. Eambo, 44 O. S. 279.
Damages may he awarded when the circumstances would not entitle tlie
injured to an injunction. Id. Jaggard on Torts, 808. As to what
wi'l be allowed by way of damages, see Id. 808, 809.
NUISANCE. 1939
Sec. 2145. Liability of property owner for injury to traveler
from opening or exavation in street adjoining-.
1. Dominion over property by ounier — May exclude persons
from it.
2. Duty of traveler on highway.
3. Private road.
1. Dominion over property hy oumer — May exclude persons
from it. The ownership of property implies absolute dominion
over it, as against all other persons, subject, however, to the
application of a well-known maxim of the law which requires
that everyone shall use his own property so as not to injure
another person. But this maxim is not infringed by any lawful
use by the owner in places where a stranger may not rightfully
come. The dominion which the owner of the property has the
right to exercise implies that he may exclude or prevent all
persons from coming upon his lands, and whoever does enter
upon his lands without the consent of the owner, express or
implied, is a trespasser and assumes the risk incident to such
invasion, subject, however, to certain qualifications. The only
difference between an express and implied consent consists in
this, the one is expressed by words, the other by the surrounding
circumstances and conduct of the parties implying that it would
be unreasonable to hold to the contract.
Where there is no special relation alleged as understood be-
tween the plaintiff and defendant, the defendant is under the
legal obligation or duty to control and manage these premises
in such reasonable and prudent manner that he shall not wrong-
fully injure others rightfully upon said premises by any culp-
able acts or omissions. * * *
The owner of land is not liable for injury resulting from llic
unsafe or dangerous condition of his premises to persons who
go upon them without invitation, express or implied.
The defendant wwild not be liable to the ])l;iin1ilT for an
injury resulting from the unsafe or dangerous condition of his
premises, though adjacent to street or a j^rivate way.
1940 INSTRUCTIONS TO JURY.
2. Dut'!/ of traveler on highway. The law imposes the duty
of ordinary care upon all persons traveling on the highway,
that degree of care commensurate with the hazards of the high-
way known to him, or that would be kno-wTi to him, had he exer-
cised reasonable care and prudence under the circumstances.
But the plaintiff can not charge his errors and mistakes of judg-
ment resulting in injury to him unless the defendant has, by
his wrongful acts or misconduct, misled him into such errors
or mistakes of judgment.
3. Private road. You are instructed also that protection can
only be extended to the plaintiff against the hazard of the exca-
vation upon the ground that he was upon a private road, having
the right to presume from circumstances that the same was a
highway upon which the public had a right to travel.
A person is not justified in making or maintaining excava-
tions either in dangerous proximity to, or in a path where he
permits other persons to traverse, or so near a public road that
travelers in the ordinary aberrations or casualities of travel may
stray or be driven over the line, and be injured by falling into
such excavations.
Beyond this liability to the trespasser, voluntarily or invol-
untarily trespassing, does not go. The owner may make what-
ever excavations he chooses on his land without fencing them
in, provided they are not on the line over which he permits
travelers to pass, or so near a public road that leads into them,
a traveler may unwittingly follow.
The question therefore is, was or Mas not said excavation
located so near to said street and said private road, in
the manner it was kept, as to make it dangerous for a party
passing along said street in a usual and ordinary manner ?
If it was it was the duty of the defendant to provide such safe-
guards as would reasonably protect the party traveling thereon.
"Was or was not said private road so constructed, located and
ordinarily used as to make it reasonably apparent that it was
a public-traveled road, so as to reasonably induce the public
to go thereon? If so, then the defendant was in duty bound
NUISAI^CE. 1941
to provide such safeguards about said excavation as to make
it reasonably safe for persons rightfully traveling in said street
and private road.^
1 Voris, J., in Sclioner r. Schumacher Milling Co., Summit Co. Com.
Pleas. Affirmed by circuit and supreme court without report.
Duty of owner when he invites others to come upon his premises
to exercise ordinary care to have the premises reasonably safe.
Cooley on Torts, 718. Individual adjoining owner to street who
makes excavations in sidewalk commits a nuisance, and is liable
to any person who, in the exercise of ordinary care, is injured there-
from. Cooley on Torts, 748 (626) ; Mcllvaine v. Wood, 1 Handy,
166.
Sec. 2146. Duty of lot owners where excavation is made in
sidewalk in front of premises by contractor.
If the defendant, for the purpose of constructing a block of
buildings, removed, either by himself or by anybody else, if he
caused to be removed this sidewalk and made the excavation
and opened this hole into which the plaintiff fell, it is the duty
of the defendant doing that by himself or by his agents, by his
independent contractors, or in any other way, it is his enter-
prise ; he is doing it for his benefit ; it is his duty to use ordi-
nary care to see that it is guarded and protected by the use of
such ordinary care as men of ordinary prudence are accustomed
to employ in that kind of enterprise. It is no defense for hira
to say that the work was being done by an independent con-
tractor.^
1 From Hawver r. Whalen, 49 0. S. 60. Tliis is apparently in confliit
with the doctrine laid down in Clark v. Fry, 8 0. S. 3")H, but as
the court say in this case (Hawver v. Whalen), the principle
underlying the instruction does not necessarily conllict witli the
doctrine of Clark v. Fry, fnipra, provided that tlic doctrine of tiiat
case is to l)o strictly limited to tlie facts upon which it was
announced. Tn Clark r. Fry, it is held that the rule rrfsprmtimt
superior does not apply in case of an injury sustained by reason
of negligence in the manner of conducting the execution of a job
of work in building a house, where the house-builder by a iunlract,
with the owner of a lot, lias taken upon himself the res[)onsil>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. <i \V. R. R. Co. v. Stadler, supreme court, unre-
ported, No. 2870 (14, 708).
Sec. 2212. Injury to child climbing over train stopping on
crossing — Negligence under such circum-
stances.
If you find, as a fact, from the evidence in the case, that the
train in question did not occupy the street-crossing for a period
RAILROAD CROSSINGS INJURIES AT. 2003
of more than five (5) consecutive minutes, or if you should find
that such train did occupy said crossing for more than five (5)
minutes, but not unnecessarily, then the fact of the train
occupying said crossing is an immaterial matter in this case,
and it is not to be further considered by you. If, however, the
plaintiff, by a preponderance of the evidence, has proven that
said train did occupy said street-crossing for a period of more
than five (5) consecutive minutes immediately preceding the
injury occurring to the plaintiff, and that such occupancy was not
necessary, then the fact of such unnecessary occupancy may be
considered by you, together with any other proper facts and
circumstances that may be in evidence in the case, as bearing
upon the negligence of the defendant. If such train did so
unnecessarily occupy said crossing for more than five (5) con-
secutive minutes, there was not, on that account and as a matter
of law, any obligation upon defendant's servants to sound a
whistle, ring a bell, or do any other specific act before starting
said train in motion either backwards or forwards; but under
such circumstances, defendant's servants would be bound to
do anything, and to leave undone nothing that an ordinarily
prudent man, under all the circumstances, would have done.
Any precaution that an ordinarily prudent man would have
taken under the circumstances, and any warning he would have
given, the defendant was bound to give; and if the ordinarily
prudent man would have taken no precaution, or would have
given no warning, the defendant was then bound to take no
precaution, or to give no warning.
The law did not, at the time of the injury complained of,
require the defendant company to prevent persons or boys from
going upon or between the cars of its train while the same was
at rest over the street crossing in question, and so a failure upon
the part of the defendant to warn or prev.-nt pb.ititilT from so
attempting was not an act of ncgligen<-e ufx.n the part of tlie
defendant that would entail liability upon tli.- .h-fm.Iant. nnl.-ss
you find that the defendant or its employes had knowl.-dgc Ihat
plaintiff was upon or bet%veon its cars, or unless you find that an
ordinarily prudent man, under the circumstances, would by some
2004 INSTRUCTIONS TO JURY.
precaution have known that the piamtiff was upon or between
its cars.
If you should conclude from the testimony in the case that the
defendant or its employes were not guilty of any negligence,
then your inquiry may cease, for in such case your verdict should
be for the defendant, no cause of action.
If you find that the defendant or its employes were guilty
of negligence, you will then determine from the evidence whether
or not the negligence caused the injury complained of. And if
you find that the defendant was negligent, still the plaintiff
shows no right to recover unless it should be proven that the
negligent act caused the injury to the plaintiff, and that the
plaintiff was free from contributory negligence, as I shall here-
after charge you.^
1 W. T. Mooney, J., in L. E. & W. Ry. Co. v. Mackey. Approved in 53
O. S. 370.
Sec. 2213. Same, continued — Whether child climbing over
train guilty of contributory negligence.
If you should find that the defendant was negligent, and that
such negligence caused the injury, you will go on and determine
this further question: "Was the plaintiff, at the time of the
injury complained of, himself in the exercise of ordinary care,
or did his own negligent act contribute to his own injury?"
This question becomes important from the fact that if it should
be your conclusion from the testimony in the case that the plain-
tiff was injured as the result of the want of due care of both
the plaintiff and defendant, then the plaintiff could not recover.
The plaintiff, to recover, must be free from all negligence on
his part.
The plaintiff here was, at the time of the injury, an infant
of the age of nine (9) years and two (2) months. "While a
child of that age is not bound to take all the precaution and
exercise all the care that an adult would be required to take
and exercise, yet this plaintiff was required to use all care that
an ordinary prudent boy of his age and capacity would have
exercised. And if you should find from the testimony that
RAILBOAD CROSSINGS — ^INJURIES AT. 2005
plaintiff, by reason of his educational advantages and experience,
was of more than ordinary capacity, then it is his capacity, as
you find it to exist, that must measure his duty to detect and
avoid danger.
Hence, if you should find from the testimony that the phiin-
tiff knew that it was dangerous to go between the freight-cars
at the time in question, or if you should find that an ordinary
prudent boy of his age and capacity wouhl not liave gone
between the cars, under the circumstances as you shall find
them, then the plaintiff was guilty of negligence and can not
recover. It is not necessary that plaintiff should have appre-
hended the injury that did occur; all that is necessary is that
he knew, or should have known, that the situation was dangerous,
and that an injury of some kind would probably ])efall him in
that situation.
If you should find that the injury happened without the
want of care of either plaintiff or defendant — that is to say,
if each party was not negligent — then the injury would be the
result of a mere accident, and, of course, in such case tlie plain-
tiff could not recover, but your verdict should be for the defend-
ant — no cause of action.
If, however, it should be found by you that the defendant-
company was negligent, and that said negligence caused the
injury complained of, and you should further find that the
plaintiff, at the time of the occurrence of said injury, was in
the exercise of the due care to which he was bound, as I have
charged you, then, and not otherwise, is the plaintiff eutill.-d
to recover in this action.^
iW. T. Mooney, J., in L. E. & W. Ry. v. Mackoy. Api.rovod in r,:\ O. S.
370.
Sec. 2214. Shunting cars, while making flying switch, across
street crossing.
The jury is instructed that it is the duty of a railroad
company not to make "flying switch.'s" across a busy str.'.-t «.f
a city without exercising ordinary eare in giving such warning
to travelers in the streets as will be reasonably co.nnicnsur.il.-
2006 INSTRUCTIONS TO JURY.
with the dangers incident to such act. To make such flying
switches without warning and signal, and with no other precau-
tions to ensure the safety of passers-by constitutes negligence.^
1 Williams v. Railway, 63 Wash. 57, 114 Pac. 888. Ann. Cas. 1912, D.
340.
Sec. 2215. Presumption that every person exercises care for
his own safety when in danger — Burden of
proof on defendant to prove decedent did
not look and listen before crossing track.
The jury is instructed that it is a presumption of law that
every man exercises due care for his own safety when in a place
of danger, and the presumption ivS that the deceased did so when
he approached the crossing.
The court instructs the jury that the plaintiffs need not
affirmatively prove that the deceased looked and listened for
the train before coming upon the crossing. The presumption is
that he did so, and the burden of proof that he did not is on the
defendant railway company, and it must be proved by a pre-
ponderance of the evidence.^
1 Evans v. Railroad, 37 Utah. 431, 108 Pac. 638. Ann. Cas. 1912, C. 259,
where the above was approved.
Sec. 2216. Defendant liable, though statutory signals given —
When other acts of negligence charged.
The jury is instructed that although the defendant company
may have complied with the statutory requirements of ringing
the bell or sounding the whistle when approaching a public cross-
ing, yet it is bound to adopt such other reasonable measures for
the safety of persons in passing over the crossing as ordinary and
reasonable prudence may require, considering the danger, travel,
and surrounding circumstances. If it appears from the evidence
that some one of the negligent acts charged in the complaint
caused the injury to plaintiff, he may recover.^
1 This is merely a suggestive proposition. It was approved in Evans v.
R. R., 37 Utah, 431. Ann. Cas. 1912, C. 259. See Bruggeman v.
Railroad, 147 Iowa, 187, 123 N. W. 1007. Ann Cas. 1912, 876,
where similar charge was given and criticized.
CHAPTER CXXIX
RAILROADS— MISCELLANEOUS CASES OF NEGLI-
GENCE. LICENSEES— TRESPASSERS— FIRES-
STOCK BLOCKING FROGS— SWITCHES.
SEC.
2217. Duty to persons habitually
permitted to travel over
tracks.
2218. Common use of tracks by pub-
lic as passageway.
2219. Injury to one walking on
track — Company bound
to give warning after dis-
covery.
2220. Duty of company to trespass-
ers on track arises only
after discovery.
2221. Required to guard against fire
from locomotive.
2222. Negligent communication of
fire from engine.
2223. Injury to stock on railroad.
2224. Escape of horse by reason of
insufficient fence.
222.5. Misplacement of switch for
criminal purpose.
2226. Failure to block frog.
2227. Omission to adjust, fill or
block switch.
SEC.
2228. Liability of company for in-
jury to person standing
on depot platform, from
mail pouch thrown from
mail car.
2229. Injury to person traveling on
right of way long used by
public caused by lump of
coal falling from car, pro-
ducing unconscious con-
dition, being struck by
yard engine while in such
condition.
1. Company owes plaintiff no
duty except to refrain
from willfully and negli-
gently injuring him after
discovering his presence
and peril.
2. Duty upon discovery of
peril, to exercise ordinary
care to avoid injury.
3. Must be something in ap-
pearance of jilaintiff to
indicate that lie was help-
less and in danger — Oth-
erwise it may be a.sflumed
lie will leave the truck.
Sec. 2217. Duty to persons habitually permitted to travel over
tracks.
If yon find from the cvidcnfe in tliis ease tlmt tlio defendant
companies, for a long time prior to the accident complained oT
2007
2008 INSTRUCTIONS TO JURY.
in the petition, permitted persons to travel and pass habitually
over their road at the point where the accident occurred without
objection or hindrance, they should, in the management of trains
so long as they acquiesce in such use, be held to anticipate the
continuance thereof, and are bound to exercise care, having due
regard to such probable use and proportioned to the probable
danger to persons so using such crossing, and if you find they
did not exercise such care, and that the plaintiff exercised
reasonable care on his part, then your verdict on this branch of
the case should be for the plaintiff.^
1 From Caldwell v. P. C. & T. R. R. Co., 51 O. S. 609. The common
pleas court was reversed, but this charge was not affected thereby.
Sec. 2218. Common use of railroad tracks by public a^ pas-
sageway.
You are instructed, as matter of law, that the plaintiff was not
a trespasser by going upon the track in question. That is, if
you find from the proof in the case that the railroad company
had knowledge that its tracks were being used at this point by
people to go to and from their work at the mill or other places,
and that the railroad company had knowledge of such use of its
tracks and acquiesced therein, and the plaintiff was not bound
to go to his work by any particular route, and had a right to
go upon and over the track where he was when injured, but in
doing so it was his duty to exercise ordinary care to prevent
being injured. * * * If these tracks in question were used by
the public indiscriminately as a place of travel to the mill or
other places, then it would be the duty of the company to so run
its trains and to exercise ordinary care in the use of its trains
with a knowledge of the way in which it permitted its tracks
to be used.^
1 Burke v. Hitchcock, Trumbull Co. Com. Pleas. Qillmer. J.
Long accustomed usage of a passageway on tracks of company by tres-
passers, charges the company with notice and it is under obligation
to keep a careful lookout at such places. Wood on Railroads,
sec. 320.
RAILROADS MISCELLANEOUS CASES OF NEGLIGEavfCE. 2009
Sec. 2219. Injury to one walking on track— Company bound
to give warning after discovery.
"If it be found from the testimony that the plaintiff, at the
time he was injured, was walking upon* the main track of a
railroad, and was not using the county road as a crossing to
reach the point he wished, the fact that no signal was given
by the engineer in charge of the engine of the moving of the
engine and cars attached toward the crossing would not be
such neglect as would render the company liable for the injury,
unless the conductor or engineer in charge of the train or
engine knew, at the time the train was being backed, that
the plaintiff was on the track, and they then failed to give him
warning, by signal or otherwise, of the approach of the train
in the same direction on the same track. ' ' ^
1 From Railroad Company v. Depew, 40 0. S. 121.
Sec. 2220. Duty of company to trespassers on tra«k — Arises
only after discovery.
The law imposed no duty upon the defendant to require its
station agents, watchmen, flagmen or switch tenders having
duties to perform at certain points, to watch over the tracks of
the roadway from such places of their special duty, to warn
persons on the track without right, and having no business with
the defendant, to get off the track, or otherwise caution them.
The defendant is only accountable for the action of its employes
after they had discovered or had reason to think or believe the
deceased was on the track and in danger of beiiifr hurt; after
they had discovered the boy on the track, or had reason to think
or believe he was there, they had, of course, no right to wjintonly
run over him. But the servants of the defendant who liad any
duties to perform in regard to the runninfj of this train, did
their whole duty if they did all they could with the means they
had, adapted to that purpose, to avoid injury lo llie deceased.
Strictly the defendant is not liable in this ease, unless its said
servants who had duties to perform in reference to th(; runninfj:
2010 INSTRUCTIONS TO JURY.
of this train, after the boy was discovered, or they had reason
to believe the boy was there and in danger, acted with such a
want of care and with such a reckless disregard of the con-
sequences as is difficult to be distinguished from an intentional
w^rong. If they acted with this recklessness and want of care,
your verdict should be for the plaintiff; otherwise it should be
for the defendant.^
1 John W. Heisley, J., in Spink case, in Cuyahoga county, O.
A railway owes no duty to a trespasser on its track further than to
refrain from inflicting a willful or malicious injury. Wood on
Railroads, sec. 320.
Sec. 2221. Required to g^axd against fire from locomotive.
Railroad companies are in no sense insurers, but in this state
are required by statute, in the use of their engines, to prevent
loss or damage by fire, to place on their locomotives, or engines,
and keep in good order, some device or contrivance that will
most effectually guard against the emission of fire and sparks
which would otherwise be thrown out by such engine, or loco-
motive, or cars, having regard to the enterprise in which they
are engaged and the objects to accomplish, and the law places no
higher or further duty upon them than in this particular; and
when they have performed that duty required of them by
statute, they are not responsible for accidental fires caused by
the escape of sparks thrown from their engines.^
1 Approved in The L. & M. R. R. Co. v. Kelly, 10 0. C. C. 322, 327; C.
L. & W. R. R. Co. V. Fredenbur, 3 C. C. 23.
Sec. 2222. Negligent communication of fire from engine.
To entitle the plaintiffs to a verdict at your hands it is
incumbent upon plaintiffs to prove by a preponderance of the
evidence, that is by the greater weight of the e\ddence, that the
fire in question was caused by a spark or sparks emitted from
an engine of the defendant, the H. V. Ey. Co., passing over its
line of railway in a northerly direction, as averred in the peti-
tion.
RAILROADS MISCELLANEOUS CASES OF NEGLIGENCE. 2Ull
The defendant is not required to prove how the fire was caused
to entitle it to a verdict. The burden is upon the plaintiffs to
show by a preponderance of the evidence that it was caused by-
sparks from the defendant's engine.
You will observe that no one has testified in this case to
seeing the fire communicated from the engine of the defendant
company to the building of the C. I. ]\I. & C. S. Co. Its com-
munication from the fire from the engine of the defendant to
the buildings of the C. I. M. & C. S. Co., is the ultimate fact
to be proven by the plaintiffs to entitle them to recover in
this case.
Wlien a witness sees the ultimate fact to be proven and testi-
fies to it in court, this is what is known as direct evidence. But
it is not always possible to establish a fact by direct evidence
and this is not required under the law. A fact may be
established by circumstantial evidence. Circumstantial evidence
is the proof of facts which stand in such relation to the ultimate
fact to be established by proof that the ultimate fact may be
reasonably inferred from the proven facts.
The question in every case is Avhat weight should be given to
the evidence, whether it be direct or circumstantial. In civil
eases it suffices to establish the plaintiff's case if the evidence,
whether direct or circumstantial, creates a preponderance of
the proof in favor of the plaintiff.
And that is the question to be determined by you in tliis case.
Does the proof of the surrounding facts and circumstances create
a preponderance of the evidence in favor of the plaintiff's elaitn
that the fire was caused by sparks from an engine on the line of
the defendant's road, as alleged in the petition?
You should consider all of the evidence in tliis ease and ask
yourselves is there evidence of greater weight tending to estal)lish
the plaintiffs' claim that this fire was caused by sparks from tlio
defendant's engine than there is that it was caused in some other
way. If your answer to that question is in tlie affirmative, tlien
your verdict should be for the plaintiffs. Bui if your answr is
in the negative, your verdict should be for the defendant.
2012 INSTRUCTIONS TO JURY.
The petition avers that on the day in question, at about six
o'clock p. m., the buildings were set on fire by sparks emitted
from an engine passing over the defendant's line of road. It is
not essential to the plaintiffs' right to recover, gentlemen of
the jury, that it should be proven that the sparks were emitted
from the engine at the hour of six o'clock. The essential matter
to be proven by the plaintiffs is that the fire which occurred on
that day was caused by sparks emitted from an engine passing
along on the defendant's road some time before the fire, but the
hour at which the engine passed need not be proven to have been
just at six o'clock. But it is, of course, important for you to
consider, gentlemen of the jury, the time at which the engine of
the defendant company passed north on the defendant's line
of road on that afternoon, and the time when the fire occurred,
in determining whether or not the cause of the fire was sparks
from the defendant's engine. That is you should consider the
time at which defendant's trains passed north on that afternoon
in relation to the time when the fire started upon the question of
the probability of the fire having been caused by sparks from
an engine on the defendant's road.
If you find for the plaintiffs, your verdict should be in such
an amount as you may find represents the actual loss caused to
the property of the C. I. M. & C. S. Co. by the fire. But this
must not exceed the amount paid by the plaintiffs to the C. I. M.
& C, S. Co. and interest on the same from the time when the
insurance companies made payment to the C. I. ^I. & C. S. Co.
to this date at the legal rate of six per cent, per annum.^
1 Aetna Ins. Co., et al., v. The Hocking Valley Ry. Co., et al.. Com. Pleas
Court, Franklin Co., O. Bigger, J.
Sec. 2223. Injury to stock on railroad.
"If the jury find that the horse, though seen by the engineer,
was running upon the track, if he left it and continued to run,
not near enough to have been in danger, and the whistle was
blown, and the horse returning to the track, the brakes were
applied and the train was checked, but could not probably then
RAILROADS MISCELLANEOUS CASES OF NEGLIGENCE. 2013
have been checked before the horse was struck by the train, the
plaintiff can not recover on the ground of the negligence or
carelessness of the defendant in running the train." ^
1 Railway Co. v. Smith, 38 0. S. 410.
Sec. 2224. Escape of horse by reason of instifficient fence.
' ' The company being bound to maintain a sufficient fence, the
plaintiff had a right to rely on this, and to turn his horse into
the inclosure; and if he escaped therefrom by reason of the
insufficiency of the fence, and went upon the track and was
killed, the company is liable. ' ' ^
1 Railway Co. v. Smith, 38 O. S. 410.
Sec, 2225. Misplacement of switch for criminal purpose.
The defendant company can not be held responsible for the
death of one of its employes caused by circumstances of which
it had no knowledge or notice long enough before his death to
have interposed to save him, or which circumstance or circum-
stances it had not reasonable ground to expect or anticipate
would occur when and where they did occur.
The law does not require a railroad company in Ohio to
anticipate or presume that a criminal will break or open its
locks and misplace its switches in the night. Nor is there any
rub of law that requires a railroad company to keep either a man
or a light at every switch at all times.
The presumption of law is that criminals will not break and
misplace railroad property; and the railroad company may
safely rely on this presumption till the contrary fact is. in any
case, brought to their knowledge, or until, from known facts,
they have reasonable cause to expect or anticipate il.
If you find from the testimony that the switch was niisphK-.tl
by someone for criminal purpose, and that the jMisplac<iii.iil of
the same was unknown to defendant, or. witli tlic exercise of
ordinary care, could not have been known by it in time to avert
the danger and prevent the injury, or, with tlie exercise of
2014 INSTRUCTIONS TO JUBY.
ordinary care on its part, could not have been made known to
those running the train in time to prevent the injury, the
defendant would not be liable for such displacement and con-
sequent injury, unless vsuch displacement could have been pre-
vented by the exercise of ordinary care on its part.^
1 Geo. F. Kobinson, J., in N. Y. P. & O. E. R. Co. v. Tidd, supreme court,
Xo. 2507. Aflirmed by circuit court and see.
Misplacement of switch by evil disposed person, causing injury, regarded
as an inevitable accident. Frust v. Potter, 17 111. 416; Deyo v.
N. Y. R. R. Co., 34 N. Y. 9.
Sec. 2226. Failure to block a frog.
As bearing on these questions, it is admitted in the pleadings,
and not controverted in the trial, that the frog of the switch
at which the injury occurred was not blocked. It is my duty
to charge you, as a matter of law, that the failure on the part
of a railroad company to block a frog is, in itself, negligence,
and such failure being admitted in the case by the defendant,
you will be authorized to determine at once the first of the
questions to which I have just referred in the affirmative, and
decide that the defendant was guilty of negligence, and other
facts appearing and existing, the plaintiff would be entitled to
recover.^
1 W. T. Mooney, J., in C. fz E. R. R. Co. v. Purviance. R. S., sees. 8516-31,
requires railroads to adjust, fill or block the frogs, switches, etc.,
BO as to prevent the feet of its employees from being caught therein.
Neglect to comply with statutory duty is negligence per se. Wood
on Railways, sec. 397.
Sec. 2227. Omission to adjust, fill or block switch.
Your attention is called to the statute on that subject. It has
been enacted by the legislature of Ohio, and such was the law
at the time this injury occurred, that "Every railroad corpora-
tion operating a railroad or part of a railroad in this state shall,
before the first day of October in the year 1888, adjust, fill, or
block the frogs, switches, and guard-rails on its tracks, with the
exception of guard-rails on bridges, so as to prevent the feet
RAILROADS — MISCELLANEOUS CASES OF NEGUGENCE. 2015
of its employes from being caught therein, and the work shall
be done to the satisfaction of the railroad commissioner. ' ' '■
Now then, taking into account the law, that goes to the jury
as a part of the evidence, for them to consider whether or not
it was negligence on the part of tlie defendant in leaving any
frog, switch, or guard-rail unblocked ; and you may consider, or
first I should say to you, perhaps, that it is for the jury to judge
of the credibility of the witnesses, the credibility of the testimony,
the confidence that they should place in the statements of the
witnesses.
Now, going back to this matter of the obligation of the com-
pany to block these switches, frogs, and guard-rails, it is alleged
by the plaintiff that the defendant carelessly omitted to adjust,
fill, or block this switch where the plaintiff caught his foot. A
great deal of evidence was submitted to you as to the practica-
bility of doing that. And you are to take tliat into account and
say whether it is practicable, whether it would obviate the
danger or diminish the danger of being cauglit there at that
place where the plaintiff claims he was caught, or where his
foot was caught. Consider wiiether it would interfere with the
operation of the road, and the operation of the cars over these
tracks, seriously; and determine that question, whether it is
practicable, on the whole, to block that place, whether the omis-
sion to block it was negligence on the part of the company, taking
into account all the evidence on that subject, taking the opinions
of the witnesses as to how the tracks are to be used there, their
statements on that subject, what would be the openings there
■with a block in there, when the switch was turned, and whether
that aperture or opening between the rail and the block when the
switch is open, whether tliat would leave the same danger tliat
would exist without the blocking, whether, with lliat block llicre,
it would prevent the split of the rail from Ix'ing close to the
stationary or bent rail, as they call it, so as to produce the
danger of derailing the cars that go across there. Take all
those matters into account, and say whether, fairly and reason-
iCode, sec. 9009, 9009-1.
2016 INSTRUCTIONS TO JURY.
ably, there ought to have been a block there; and then say
whether you find it established by a preponderance of the evi-
dence that the defendant was negligent in not blocking it there.
And if you find that that is made out by the evidence, why, then
you may take that as established, and that will be one step
towards a verdict for the plaintiff. If that is not made out, if
you find that it is not practicable, if you find that the defendant
was not negligent in failing to block that place there, why, then
that is the end of your inquiry, and your verdict must be for
the defendant, because that is the negligence charged in the
petition. But if you find that is established, as I have said,
then go further and ascertain whether it is made out that the
plaintiff was caught in that M^ay.
I should say to you that the law on this subject, requiring
these frogs, switches, and guard-rails to be blocked, is to be
taken into account as the requirements of the legislature on
that subject, and in view of all the facts and situation as to
whether that was negligence in failing to block that place.
Although the law might require it, still it does not follow, as
a matter of course, that, because the law requires it, the
defendant was negligent in not complying with it ; but that may
be taken into account on this subject, and it is for you, on all
the facts in evidence and the situation there, to say whether the
failure of the defendant to put a block there was negligence.
Is that made out? Then consider Avhether the plaintiff was
caught there as he says, whether that is made out — for he has
to make that out — consider whether his own negligence con-
tributed in any way to his injury in performing his work there,
going in betAveen the cars as he did, if he went in between them,
his acts there. Look it all over, consider everything.-
The following requests were given hy the eowrt:
If W., when he went in to uncouple the car at and in the
vicinity of the switch in question, knew, or, by the exercise of
2 Gilbert Harmon, J., in The L. S. & M. S. Ry. v. Winslow. supreme court.
No. 43r)7. Settled and dismissed in supreme court, but charge
aflSrmed by circuit court.
RAILROAD&— MISCELLANEOUS CASES OF NEGLIGENCE. 2017
ordinary obser^^ation or reasonable skill and diligonee in liis
department of service, he might have known that he was going
to be exposed to the danger and risk of having his foot caught
in the movable rail of said switch, and, notwithstanding such
knowledge or means of knowledge, he stepped in to um-cuple
the said ears, he assumed the risks of being so injured, and
waived all damages and injury that should thereby result to him.
If the plaintiff, after having a reasonable opportunity of
becoming acquainted with the risks and perils of his service,
accepts them, he can not complain if he is subsequently injured
by such exposure.
The company did not guarantee to the plaintiff the absolute
safety and sufficiency of its machinery or appliances, but wa.s
bound to exercise only ordinary and reasonable care; that is,
such a degree of care and prudence as ordinarily prudent per-
sons or corporations engaged in like business exercise under
similar circumstances. The railroad company was not bound
to use extraordinary care, nor w^as it required to do what was
impracticable or unreasonable.
If the jury find from the evidence in this case that it was
impracticable to so adjust, block, or fill the movable rails of
this switch at the place where the injury happened, then it
was not negligence on its part in omitting so to adjust, block,
or fill the movable rails of said switch.
If the defendant company adopted such methods as were
reasonable and practicable for the safe running of its trains, as
well as to guard against injury to its employees, at tlie place
where this injury happened, then it used and exercised ordinary
and rea.sonable care, and can not be bold liable for any injury
happening to said plaintiff at said switcli, even tbongli bis root-
was caught therein.
The omission of the railroad company to comply with the
provisions of the statute requiring frogs and switclics 1o bo
blocked is not, in and of itself, conclusive proof of n<'gligcnce
that' will render a railroad company liable for an injury result-
ing from such omission, but such omission may be and sjiould
2018 INSTRUCTIONS TO JURY.
be considered by the jury in connection wath all the other facts
and circumstances of the case.
If the jury find that the plaintiff knew how these movable
rails were constructed and operated, or, by the exercise of rea-
sonable care and prudence on his part in the performance of
his duties, should have known thereof, and that the company
insisted upon maintaining such condition and construction, and
thereafter continued to and did remain in the service of the
defendant, then he took upon himself and assumed all the usual
risks and perils incident thereto.^
s Given by request by Harmon. J., in The L. S. & M. S. Ry. v. Winslow.
Under the Ohio law the United States Circuit Court held that
where two railway companies receive cars from each other over
a delivery track at a certain point, a person employed by one
of them to take the number of its cars and inspect their seals, as
trains are made up at such place by the other, is an employee of
the latter. Alkyn r. Wabash Ry. Co., 41 Fed. 193.
Sec. 2228. Liability of company for injury to person standing
on depot platform, from mail-pouch thrown
from mail-car.
If you find from tlie evidence that the mail agent was in the
employ of the postofifice department of the United States gov-
ernment, and was not in the employ of the defendant railway
company, and was not under the control or direction of the
defendant company, or any of its agents or employees, then
said defendant would not be liable for any of his negligent acts.
If you find the defendant railway company was negligent in
(•arr\ang the United States mails on its trains, it was its duty
to make such arrangements for the delivery of such mails at the
stations, ns not to unnecessarily endanger the passengers of
said defendant company, or those lawfully on its platform and
grounds. And if it was required of the said defendant com-
pany by the postoffice department of the United States to
deliver the mail-bags on the platform of the depot at ,
it was the duty of the said defendant company either to stop
its trains at , or to run its trains at such rate of speed
RAILBOADS MISCELLANEOUS CASES OP NEGLIGENCE. 2019
past said depot as not to unreasonably endanger the passengers
of said company, or those lawfully on its platform or grounds,
or to so guard said platform and to give notice to the people
lawfully thereon, as not to expose them to unnecessary or un
reasonable danger.
And if said railroad company ran its trains at such unreason-
ably high rate of speed past said station, and knowingly per-
mitted the mail agent to throw off the mail-bags upon the plat-
form of said station, without giving due notice to the persons
lawfully thereon, or in some way protecting them from the
danger thereof, said railroad company would be liable for any
damage caused by the negligence of the agents and servants of
the company in running said train, and in permitting said
mail-bags to be thrown off without due notice to the persons
lawfully on said platform, or in some other way protecting them
from unreasonable and unnecessary danger. It is left to you
as a question of fact to say whether the train to which the
mail-car was attached was run at such high rate of speed as to
be negligence of the part of the company, or whether the agent's
or servants of the company were negligent in failing to give
due notice to the plaintiff that the mail-bag was about to be
thrown upon the platform, or in protecting plaintiff from injury
therefrom.'^
1 Nye, J., in Clarke v. N, Y. P. & O. R. R. Co., Medina Co. Com. Pleas,
see 136 Mass. 552, 97 N. Y. 494.
Sec. 2229. Injury to person traveling on right of way long-
used by public caused by lump of coal fall-
ing from car, producing unconscious condi-
tion, being struck by yard engine while in
such condition.
1. Company owes plaintiff no duty except tu refrain from
willfully and negligently i^ijuring him after discover-
ing his presence and peril.
2. Duty upon discovery of peril, to exercise ordinary ran-
to avoid injury.
2020 INSTRUCTIONS TO JURY.
3. Must be something in the appearance in the plaintiff to
indicate that he was helpless and in danger — Otherwise
it may be assumed he will leave the track.
1. Company owed plaintiff no duty except to refrain from
willfully and negligently injuring him after discoveriny his pres-
ence and peril. It appears from the undisputed evidence in
this case that at the time when the plaintiff received his injury-
he vras walking along the right of way of the defendant com-
pany, and not upon any public street or highway, nor at any
intersection of any street or highway, and the defendant's right
of way and tracks, but was using the defendant's right of way
and tracks as a convenient road to his Avork. He was not upon
the defendant's right of way by its invitation, either expressed
or implied, but solely for his own convenience, and he was
therefore what is known in law under these conditions as a bare
licensee. That being true, the company did not owe him any
duty to exercise care for his safety, except tlie duty to refrain
from willfully and negligently injuring him after discovering
his presence and peril. At all crossings of streets and highways,
and at other places where the public have a right to be, it is
made the duty of the railway company to exercise ordinary care
for the safety of persons who may have occasion to go upon
and cross its tracks, and this duty requires it to keep a proper
lookout ahead to discover their presence. The measure of its
duty to persons under such circumstances is that degree of care
and caution which persons of ordinary prudence and caution
are accustomed to use under like circumstances and conditions.
But when persons go upon a railroad company's right of way
at places where they have no right to go, the company is not
required to exercise care for their safety, except, as I have
said, to refrain from injuring them willfully and wantonly
after discovering their peril. Persons who go upon a railway
company's tracks at places where they have no right to go, as
was the case with the plaintiff when he used this right of way
as a convenient road to and from his work, instead of going by
RAILROADS — MISCELLANEOUS CASES OF NEGLIGENCE. 2021
the public streets and highways of the city, takes the risks of
injury, and can not therefore recover if they receive injuries
on account of the defendant not exercising care for their safety.
The plaintiff can only recover, as I have already said, in case
the evidence shows that the agents and servants of the defendant
company in charge of its engines and trains willfully and wan-
tonly inflicted injuries upon him after discovering his presence
and peril.
If, therefore, you believe the fact to be that the plaintiff was
injured, first, by a lump of coal falling from an overloaded
coal-car, even though you may be of the opinion that it was
negligence on the part of the defendant company to transport
loaded coal cars over its lines, yet the plaintiff can not recover
for that injury because when he undertook to travel along the
defendant's right of way by the side of its loaded and moving
coal-trains he assumed the risk of injury from coal falling off
of the cars, because the plaintiff's own evidence shows that this
was the usual and ordinary manner of loading the coal-cars,
and was therefore a known danger.
The plaintiff claims that by this ])low upon the head he was
rendered unconscious, and that wliile in this unconscious con-
dition he was run down by an engine coming soutli and operated
by the agents and servants of the defendant company in a neg-
ligent and careless manner.
2. Dutu, upon discovery of peril, to exercise ordinarji care to
avoid injury. In determining whether or not tlie defendant
company is liable to the plaintiff in damages for causing this
second injury, you will still keep in mind that the dcrcndant
did not owe to him the duty of exercising ordinary care for his
safety, but if you find the fact to be that the defendant eonipi>'iy.
through its agents and servants, or any one of them, ong:ige<f
in the operation of the freight train or tlie locomotive, discov-
ered the fact that the plaintiff wa.s injun-d and in a position
of danger, then it became its duty to exercise ordinary care to
avoid injuring him; and if it failed to do so. and its failun'
so to do resulted in injury to the i)Iaiiitiir, liie .ler,ii<l;.nt will
2022 INSTRUCTIONS TO JURY.
be liable for the injuries resulting therefrom. If you find the
fact to be that some employee or employees of the defendant
company engaged in the operation of its freight train going
north, or the engine coming south, had notice such as a person
of ordinary prudence would believe and act upon, that the plain-
tiff was injured, and that he was exposed in a helpless condition
to the danger of injury from a passing locomotive or train, then
the company owed to him the duty of observing due care to
prevent his being so injured, notwithstanding he was upon its
tracks at a place where he had no right to be. Not to do so
would be to willfully and wantonly inflict injury upon him.
It is, therefore, your duty to inquire whether or not any em-
ployee or employees of the defendant company did have actual
notice that the plaintiff was injured and exposed to danger in
sufficient time that by the exercise of due and proper care the
plaintiff could have been saved from being run over by the
locomotive coming from the north.
It is the plaintiff's claim that the coal-train from which he
testifies the lump of coal fell and struck him on the head had
passed by him before the locomotive ran over him, and that
someone was standing on the rear of the caboose. It will be
your duty to determine whether or not that is the case ; that is,
whether a coal train did pass by him before he received the
injury to his leg, and if so, whether an employee of the company
had notice of his condition.
The defendant has introduced evidence by its chief train dis-
patcher touching the number of freight trains going north that
afternoon at about the time of this injury. You will look to
that and all the evidence to decide the question as to whether
or not the plaintiff is correct or mistaken when he testifies that
the coal-train had entirely passed by him before he was run
down by the engine. Of course, if you find that the coal train
from which the coal fell had not passed by him when he was
run down by the locomotive, then there can be no question of
an employee of the defendant company on the rear of the caboose
learning of the injury to the plaintiff. But if you find that
RAILROADS MISCELLANEOUS CASES OP NEGUGENCE. 2023
there was a coal-train going north, which had entirely passed
by before he was run down by the locomotive, you will inquire
whether or not anyone connected witli the management and
operation of that freight train had notice of his injury, and if
so, whether such notice was obtained in time to have avoided
the second injury to him by the exercise of ordinary care in
that behalf by stopping the coal train or giving notice to those
in charge of the locomotive which ran over his legs, of the
plaintiff's perilous situation. Of course, any persons in charge
of the coal-train were under no obligation to give notice that
the plaintiff was walking along its tracks, unless they had notice
of his injury and disabled condition. They had no duty to
perform toward the plaintiff unless you find from the evidence
that some person connected with the operation of the coal-train
had such notice as a person of ordinary prudence would believe
and act upon that the plaintiff was injured and in a helpless
condition, and exposed on account thereof to danger from a
passing train.
As regards the engineer in charge of the locomotive coming
from the north, if he discovered that the plaintiff was injured,
that is, if he had notice from the appearance and conduct of
the plaintiff such as a person of ordinary prudence would be-
lieve and act upon that plaintiff was injured and in a helpless
condition, or that for any reason he was in a helpless condition
and exposed to danger of being run over, then it became Ids
duty to exercise ordinary care to avoid injuring him ; tliat is.
to use that degree of care which persons of ordinary jirudence
and caution are accustomed to exercise under like circumstances
and conditions; and a failure to exercise such care on the part
of the engineer would, if it resulted in injury to tlic i)hiinliff,
render the defendant company lial)le in damages for whatever
injuries were the result of this want of care on his [>art.
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/.e<l
to take immediate possession thereof; ami b. for-' the said debt
became due the defendant, E., as sberilV ..f said e(.uiity. levied
executions upon the said property at the suit of other ereditoi-s
of the said B., under which the said defendant was about to
2042 INSTRUCTIONS TO JURY.
remove said property from the possession of said B., and pro-
ceed to sell the same and pay said executions, the said plaintiff,
B., would have the right to maintain replevin for the recovery
of said personal property.^
1 Ashley v. Wright, 19 O. S. 291.
2 Nye, J., in Beebe v. Ensign, Lorain Co. Com. Pleas.
Sec. 2246a. Replevin of hogs by wife from purchaser on exe-
cution against husband.
1. Statement of claims.
2. Burden of proof and weight of evidetice — Testimony and
evidence distinguished — Credibility of witnesses — Vlti-
m/ite facts.
3. Wife claiming stock on farm of husband must rebut pre-
sumption of ownership by husband arising from pos-
session and apparent ownership — She must show that
she has separate property, or receipt of money during
coverture.
4. Wife entitled to increase of her stock though raised on
husband's farm — Not subject to levy by creditor of hus-
band.
5. Wife estopped by conduct from claiming ownership as
against persons dealing with husband on faith of his
apparent ownership.
6. Wife estopped by fraudulent purpose and conduct of
husband to avoid execution against his property if sho
has knowledge and participates therein.
7. Creditor of husband must have knowledge of and rely
upon apparent possession and ownership by husband.
8. Wife must act with diligence in asserting her rights when
creditor of husband levies execution.
9. Alternative verdicts.
1. Statement of claims. This is an action in replevin wherein
the plaintiff seeks to recover possession of fourteen shoats, one
white sow and one female hog. Plaintiff is the wife of 0. S. R.,
the two living on a farm which was owned by the husband.
REPLEVIN. 2043
The claim is made by the plaintiff that she, as the wife, pur-
chased two sows, and that the fourteen shoats are the increase
thereof, and therefore the personal property of the plaintiff.
2. Burden of proof and tveight of evidence — Testimony and
evide7ice distinguished — Credibility of ivitnesses — Ultimate facts.
The defendant enters a general denial to the plaintiff's petition;
that is, he denies that she is the owner, and therefore the burden
of proving that she is the owner and that she has not been
estopped by her conduct is upon her. This she must do by the
greater weight of the evidence. There is a difference, gentle-
men, between testimony and evidence. A witness may take the
witness stand and give testimony and you may not consider it
as evidence at all, or you may consider it as evidence, just as
you in your judgment feel it ought to be considered. The
testimony has to be run through the sieve of your minds, as it
were, before it can become evidence. It has to be weighed in the
scales of credibility. You must consider whether the story is
probable or improbable; whether it is consistent with reason
and common sense as applied to the transaction; wliether it
appears that the testimony has been given frankly, openly and
squarely, or whether it has been given otherwise. You are to
consider all the things that appear in this case that ought to be
considered in determining the credibility of the testimony tliat
has been given. You do not have to believe what a witness
states just because he may have stated it, but you may disbe-
lieve it altogether if you consider that the witness is uinvortliy
of belief; or you may believe a part and disbelieve other parts.
You should consider the interest or motive, if there is any, wliidi
prompts a witness to testify, or you may consider the want of
interest; whether or not a witness is disinterested and has no
reason under all of the circumstances for telling anything but
the truth. The truth is the most sacred thing that courts of
justice have to deal with. There is not anything in a court of
justice that is more shocking tlian an untruth. Th.T,.fore. gen-
tlemen, while you are sitting in the jury l)ox and a.-ting under
the solemn obligation that you have taken, you have a sacred
2044 INSTRUCTIONS TO JURY.
duty to perform, and you know nothing but your conscience,
your oath and your duty.
The preponderance of the evidence which must be established
by the plaintiff in order to make out her case is not weighed in
mathematical scales; it does not consist of the greater number
of persons who testified. A case may be substantiated according
to the greater weight of the evidence if the jury so thinks by
even the testimony of one witness, or fwo ; there may be a dozen
witnesses testify on one side, and two on the other, and the jury,
considering all, may conclude that the weight of the e%idence
is on the side of the minority, or it may be on the side of the
majority of witnesses. It is all a matter of opinion and judg-
ment for the jury. So that the first important thing for you
to do is to sift the testimony and find out what the evidence is.
The evidence consists of the ultimate facts to which the law
attaches legal doctrines and consequences. These ultimate facts
are drawn from the testimony by the jury, and the court in-
structs the jury concerning any and all questions that may be
made by the parties. One side will make a claim on one line,
and another will make a different claim ; and an inference may
be drawn from the evidence by the jury, and the court may
perceive that inferences may arise, and therefore must instruct
you as to the law applicable to these various questions and in-
ferences, leaving the matter entirely to your judgment and dis-
cretion as to what you shall deem proper.
You are the sole judges of the facts and the court in whatever
it says in regard to the law does not undertake to express any
opinion whatever, leaving the matter entirely to your judgment.
3. Wife claiming stock on farm of husband must rebut pre-
sumption of oivnership by husband arising from possession and
apparent ownership — She must show that she has separate prop-
erty, or receipt of money during coverture. The claim is made
in evidence that the plaintiff furnished the money with which
the two hogs were purchased. The hogs were raised on the farm
which belonged to the husband of the plaintiff and which was
farmed by him. The fact of ownership being the sole question
REPLEVIN. 2045
for the jury to decide, the court will instruct you concerning
the phases of the claims of ownership of the property asserted
by the wife, so as to enable you to decide whether the plaintiff
was or was not the owner.
A wife living with her husband may have and hold property
separate and apart from him. But in a case like this where a
husband o^-ns a farm on which he is conducting the business of
farming, on which he has stock and is raising stock and other
chattel property, the wife can not inherently use and enjoy her
property, such as stock, if she has any, as fully and separately
after marriage, as before, so far as outward appearances go,
because she must enjoy it in a different way, in union, as it Mere,
with her husband. [Walker v. Beamy, 36 Pa. St. 410.]
A married woman may, however, own personal property as
her own as separately and independently as if unmarried. But
the nature of the possession and the conduct of the wife and
husband may be such as to operate against the wife so far as
may concern the creditors or persons dealing with the husband.
The rule of law in such case, therefore is, that so far as re-
gards creditors, all the money and personal property of the
family are presumed to belong to the hus])and until the con-
trary is shown. [Bhoads v. Gordon, 38 0. S. 277.]
So the rule is that where a married woman claims property
in opposition to her husband's creditors, which slie claims to
have been purchased by her since and during marriage, the
burden is upon her to establish by the greater weight of evi-
dence, that she either had other separate means or property
apart from her husband, or that she has received money or otlier
property by either will, descent, conveyance or otherwise and
that she invested it in the property claimed. [ Walker v. Rcannj,
36 0. S. 410; RJioads v. Gordon, 38 0. S. 277.]
The obligation, therefore, rests upon plaintiff not only to rebut
this presumption or prima fa<^ie ownership of the liogs, but to
establish the fact of her ownersliip of the sam.' by tin- greati-r
weight of tlie evidence.
The plaintiff and her husband have given cvich-ric.- eoneern-
ing the alleged receipt of money from her i'.ithcr aiwl fmin his
2046 INSTRUCTIONS TO JURY.
estate at different times. The jury will weigh and consider
this testimony, consider the time of its alleged receipt, the prob-
ability of its retention by plaintiff, or any part thereof, from the
time of its receipt until the tim^ the hogs were purchased ; you
should consider the credibility of the witnesses in this connec-
tion, their demeanor while on the witness stand, whether they
gave a satisfactory account of the alleged receipt of the money
and its retention and disposition. You should consider also
all their business dealings between plaintiff and her husband
concerning money transactions and the alleged borrowing of
money by her husband, or any other transactions relating to
money. You should also consider the manner in which the
husband dealt with the title to liis farm, his admitted object and
purpose in not keeping the title thereto in his own name, and
the knowledge of the wife of this fact. And, if on full con-
sideration of this question of alleged ownership of the two sows,
you conclude that the presumption of ownership in the husband
is not overcome and that the claim of ownership on the part of
the plaintiff is not established by the greater weight of the evi-
dence, then that will end your consideration of the case and your
verdict should be for the defendant.
5. Wife entitled to increase of her stock, though raised on hus-
band's farm — Not subject to levy by creditor of ]n(sband. But
if you find that plaintiff was the owner of the two hogs, then you
will proceed to the consideration of the remaining questions in
the case. If the plaintiff was the owner of the two hogs, then
the increase therefrom, the fourteen shoats, became in law a part
of her separate property, even though the same were kept on
her husband's farm, and though her husband may assist or take
part in the raising thereof.
If a wife owns personal property separate and apart from her
husband, a creditor has no right to levy execution thereon for
the debt of the husband. Even though a wife buys personal
property for the benefit of herself and her husband, and to
become part of the business of the conduct and management of
the farm, she may by her conduct in respect to the use and pos-
REPLEVIN. 2047
session of the same, become estopped from claiming: ownership
as against a person who may have been dealing with her husband
and in reliance upon the apparent possession of the same liy her
husband and his presumed ownership because of sncli apparent
possession and control.
6. Wife estopped hy conduct from claiming ou-nership as
against persons dealing itnth husband on faith of his apparent
ownership. If a husband, or the husband of plaintiff in the con-
duct and management of a farm has thereon stock purchased
by the wife which is in his possession and control, and which
is being raised and fed on his farm, in the absence of conduct
on the part of the wife in treating the same as part of her own
separate property ; or if she willingly allowed the hogs as her
separate property to become mixed and mingled with the stock
and other chattel property of her husband, or to lie and remain
in his apparent control and possession as if his own, so as to
warrant a person dealing with her husband in ])clieving ami
relying upon the possession of the hogs as his own. and if the
wife made declarations to the person dealing with her husband
that she did not own any of the property in her husband 's pos-
session, and such person, the creditor, that is S. in this case, did
rely upon such possession and did extend credit to liiin in reli-
ance upon such possession, in such case the wife would be
estopped from claiming ownership.
If a wife permits her husband to have and possess lu^r separate
property as his own, if plaintiff permitted her husband to liave
possession of the hogs and raise them on his farm as if Ids own,
and to hold them out to the world as if he was the owner tluTcof,
she will be estopped to claim them against an execution cn'(lit.>r
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:<sTRucTioNs to jury.
even though he be insolvent and knows it and does not disclose
it. Fraud is never presumed, and the burden of proving its
existence is always upon him who alleges it.^
1 Wright, J., in King & Co., v. Hopkins, assignee, Hamilton Co. Com.
Pleas. Fraud. Talcott v. Henderson, 30 0. S. 162.
Sec. 2258. What language constitutes warranty in sales.
"If during the negotiation for the sale of the horse, the de-
fendant made an assertion of soundness, which assertion was
intended to cause the sale of the horse, and was operative or
effectual in causing such sale, then such assertion would consti-
tute a warranty. But a mere expression of an opinion is not
enough to constitute a warranty."^
(a) Implied warranty that goods arc fit for purpose sold.
The jury are instructed that where a person sells goods for
a specific purpose, with knowledge that the purchaser is getting
them for that special purpose, such purchaser has a right to
expect that they will answer that purpose, and when the vendor
so sells them, with full knowledge of what use the vendee expects
to make of them, the law is that the vendor impliedly under-
takes with and warrants to the purchaser that the goods are
fit for the use intended, and if it turns out that they are not fit
for such use, there is a breach of warranty.-
1 From Little v. Woodworth, 8 Neb. 283. The court held in this case
that no particular form or set of words are necessary to consti-
tute a warranty, but that any form of words will be sufBcient.
2Byers v. Chapin, 28 0. S. 300. See L. R. 2 Q. B. D. 162; Wilson v.
Lawrence, 139 Mass. 321. The particular purpose must be made
knowm by the vendee if he desires to place upon the seller the
responsibilities flowing from an implied warranty. Hight v. Bacon,
126 Mass. 13. If the buyer relies upon himself there is no war-
ranty. Mattoon v. Rice, 102 Mass. 236.
Sec. 2259. Buyer having opportunity to inspect — Caveat
emptor — Rule applies unless express or im-
plied warranty.
The jury are instructed as matter of law that in sales of
personal property, in the absence of an express warranty, where
SALES — WARRANTY. 2063
the buyer has an opportunity to inspect the goods or article,
and the seller is guilty of no fraud, and is not the manufacturer
or grower of the article he sells, the maxim of caveat impior
applies.^ By that we mean that the purchaser must take care
that there are no defects. The purchaser buys at his own risk.
This he does unless, as stated, there are present any of the facts
just stated, an express warranty, or unless the circumstances
of the case are such that the law will imply a warranty.^
An implied warranty is one which the law implies from the
circumstances of the case, and is really founded upon the pre-
sumed intention of the parties. The implication which the law
draws from what must obviously have been the intention of the
parties, with the object of giving efficacy to the transaction and
preventing a failure of consideration as can not have been
within the contemplation of either side.
If the jury finds from a preponderance of the evidence
that the defendants engaged, for a reasonable or valid consid-
eration, to build them three boilers to run the engines for their
rolling-mill, and agreed to build them, they, the defendants,
impliedly agreed that the boilers sliould be built of good ma-
terials and good workmanship; and should be free from iill
such defects of material and workmanship, whether such defects
are latent or otherwise, as would render them unfit for the usual
purposes of such boilers.^
1 Barnard v. Kellogg, 10 Wall. 388.
2 Story on Sales (3d ed.), sec. 348, 20 Johns, 196.
sRodgers v. Niles, 11 O. S. 48.
Sec. 2260. Recoupment of damages where vendee has used
property under warranty as to quality.
The jury are instructed that if you find that there was a
breach of warranty as to quality of the goods under the in-
structions given you on that point, the defendant may do on.-
of two things. lie may entirely rescind the contract of sale,
return the goods, or offer to return them, or reUiin the goods
without offering to return them, and in a suit for tlie 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<'tin<i: of
minds to form a contract if there has been a mistake. II Pet. 71;
20 Pick. 139. Xor is there a sale if there be a material misimd<'r-
standing as to the price. 40 Cal. 459; 62 Wis. r84; 44 Kaii. 277.
Sec. 2263. Whether delivery of wheat to mill a sale.
If the evidence shows that it was understood between W., the
plaintiff, and J., the miller, that the wheat in controversy was
put in the mill to be kept until such time as W. chose to ilemand
redelivery, and that J. agreed to redeliver it to W. upon such
demand, the transaction was not a sale of the wheat lo J., but
the w^heat remained the property of W.*
(a) Effect of mixing ivith other wheat upon transaction.
"And this character of the transaction is not lost eithrr, cviii
though the custom of the country in n rcrci lo which thi-
wheat was received warranted the mi.xing of il with the wheat
2066 INSTRUCTIONS TO JUBY.
of Others in the mill, or because it should appear that by the
consent of the plaintiff and the mijler the wheat was mixed with
other wheat in the mill belonging to the miller himself.
1. With understandi7ig that miller was to ship or use same
on his oivn account, etc. "U the jury find that the plaintiff
did deposit wheat with J. D. J., at his mill, yet if the jury find
that at the time J. received the wheat it was to be and was mixed
in a common mass with other wheat in the mill, and with the
knowledge or understanding that J. was to retain and use or ship
the same, for sale on his own account, at his pleasure, and on
demand of the plaintiff was either to pay the market price thereof
in money or redeliver the wheat, or other wheat in place of it
to the plaintiff, the title of the wheat passed to J., and the plain-
tiff can not recover in this action, "-
2. Mixed with consent of owner. That if the proof shows
that the plaintiff's wheat, either with or without his consent,
was mixed in a common mass with other wheat in the mill be-
longing to the miller (or to the miller and other persons who
had deposited wheat in the mill), the plaintiff acquired thereby
a property in the common mass of wheat equal in quantity to
that he had put in the mill."^
(&) Option to demand equal numher of bushels of common
mass.
"If the jury find that it was the understanding between
the miller and the plaintiff that the plaintiff had the option
to demand and receive the return of his own wheat or an equal
number of bushels of wheat out of the common stock in the mill
belonging to the miller and the depositors, including plaintiff's,
or to then elect to sell, then the miller, as to the plaintiff's wheat,
was a bailee, and was not the owner."
"If plaintiff delivered wheat at J.'s mill, and the same was
mingled with wheat of the miller or other depositors, he, the
plaintiff, did not thereby lose his property, but he retained a
property in so many bushels of the common mass in the mill
as he had put in, notwithstanding that it may have been under-
stood between the miller and the plaintiff that the plaintiff's
SALES WARRAN-re". 2067
wheat should be mingled with the miller's wheat and the wheat
of other depositors. ' '
"If the understanding between the miller and the plaintiff
provides that J. was to deliver to plaintiff out of the coimnon
mass in the mill the number of bushels which he i)ut in the
common mass in the mill, and his proportion was still in the
common mass, the plaintiff is entitled to a verdict."*
1 Chase v. Washburn, 1 0. S. 244.
2 This was given by request. Chase v. Washburn, 1 0. S. 244, 252- 117
Pa. St. 604; 75 la. 267.
3 James v. Plank, 48 0. S. 255. It was a bailment, so that the plaintiff
acquired, as in charge stated, property in common mass. Id.
"Where the identical goods delivered are to be restored in the same
or modified form (as where wheat is to be restored as flour),
the property in the goods is not changed; the transaction is a
bailment." 150 U. S. 312, 329; 7 K Y. 433; 8 Allen, 182.
4 Stillwell, J., in Geo. W. Hall v. John Watkins, S. C, No. 1707.
"Where grain is deposited with a warehouseman, with an understanding
that it will be mingled with other similar grain of other parties,
and that its equivalent from the common mass will be returne<l
in the same or an altered form, the depositor is a tenant in
common pro rata with all the other like depositors, and the ware-
houseman is their common bailee. This is merely the case of an
intermixture or confusion of goods with the consent of the owners,
and each remains the owner of his share. Benjamin on Sales,
5, 46 0. S. 244, 48 0. S. 255, 133 Mass. 154, 160, 117 Pa. St.
589, 603.
Sec. 2264. Action to recover purchase price on sale — When
article unsuitable for use — Must be rescission
and tender back.
If the jury find that the machine furnished would accomplish
what his contract called for, then he is entitled to recover tlu'
price of the machine together with interest as claimed in his
petition.
If, on the other hand, after a full and fair trial of llic ma-
chine, under the conditions that the contract called for, the
machine failed to cut in a suitable inanner viiieers up lo tiiree-
eighths of an inch in thickness, the defendants, or the parties
for whom the machine was purchased, had a riglit to teuder
2068 INSTRUCTIONS TO JUKY.
back the machine to the plaintiffs and to rescind the contract.
Or, if the plaintiffs refuse to receive back the machine, to place
the same in storage at their expense and risks. If you do not
find from the evidence that the machine as constructed was
capable of performing the work that the contract required of
it to perform, under the conditions laid do^vn by the court,
you will then look at the testimony as to how the defendants
dealt with the machine. If, after using all proper efforts to
make the same work, with the wood properly prepared for the
purpose, and the operator was of sufficient skill, the machine
failed to perform w'hat was required of it, the defendants had
a right to tender it back, if done promptly, and thereby rescind
the contract. But under such circumstances it was their duty
to act promptly, and if they failed to do so, and used the ma-
chine for a considerable period of time afterwards, they no
longer had a right to return it.
If you find from the testimony that tlie machine was not
capable of performing the work for which it was purchased
under the warranty, and that the defendants, after fully satis-
fying themselves of this fact, tendered back the machine to the
plaintiffs, the plaintiffs would have no right to recover; but if
you should find on the other hand that after the defendants
found that the machine would not comply with the terms of the
contract, they still continued to use it in their business for a
considerable period of time, unless you find that they had a
right to do so by permission of the plaintiffs, they would then
forfeit their right to return it, and their only recourse would
be, then, in a suit to recover the purchase money, to set up the
warranty and to show how much less valuable the machine was
than its contract price, and in such case the sum then shown by
the evidence to be the value of the machine to the defendant,
or to the 0. B. Co., is all the plaintiffs could recover, and with
interest from that time.
I will say that in case you should find that the machine did
not comply with the terms of the contract, and you should
further find that B. & Co., or the 0. B. Co., acted with due
promptness in tendering it back, that in such case if you should
SALiES — WARRANTY. 2069
find such a state of facts to exist from the testimony, B. & Co.
would be entitled to recover the amount of commission, or
amount that they would be entitled to receive on the machine
if it had been kept by the 0. B. Co., and also the amount of the
expense they Avere put to.^
iDwyer, J., in The Brownell & Co. v. William T. Towers. Dismissed in
supreme court.
Sec. 2265. Acceptance and continued use of thing sold after
knowledge that it will not work.
But if after the lapse of such reasonable time the defendant
had the knowledge that the machine could not perform the stipu-
lations of the contract, or reasonably ought to have had such
knowledge, though it may have given plaintiff notice to remove
the same, and that the defendant would not accept the same as
performance of the contract, yet if the defendant continued to
use and operate the same and treated the machine as its own,
it would be liable to plaintiff to pay therefor the actual value
of the machine in the condition it was when finally accepted
by the defendant, considering its capacity to perform or not to
perform the work stipulated for in the contract, not to exceed
the contract price for the machine.^
But if you find that the machine was not wortli iis inucli as
the cash payment and the note paid, then the defendant would
be entitled to recoup the difference between the amount of the
cash and note paid, and the value of the macliine so found by
you ; but this instruction must be understood as only applying
in case you find the machine to be less in value than tiie amount
of the moneys actually paid, that is, the cash payment and the
amount paid on the first note becoming due.-'
1 Should it not have been charfred tlial (lie value of llu- i)ro[)('rty ni* it
would have been if made up to tlic ^niaraiity 1»'«k the dilFiTOMcu'
of that value and what it was actually worth an it wuh? No,
because there was no evidence offered to cliar^'c that tlic contract
price was not the true value of tlie property f,'uaraiitrcd to be
delivered, which price is presumed to be tlie value of tbc jiroperty
in the abs<ence of allepations and jiroof to the contrary.
zVoris, J., in The Brownell Co. v. The J. C. McNeil Co., Summit Co.
Com. Pleas.
2070 INSTRUCTIONS TO JURY.
Sec. 2266. Fra.ud and deceit in sale of property — Parties
dealing on an equality.
Deceit or fraud in business transactions consists in fraudulent
representations of contrivances by which one person deceives
another who has a right to rely upon such representation, or has
no means of detecting such fraud. It is the law that fraud
vitiates every contract. There is no exception to this rule.
"When fraud is proven to have promoted the making of a con-
tract, it is void and can not be enforced. Fraud taints every
transaction which is the result of it. But fraudulent representa-
tions in the sale of property will not in themselves always con-
stitute deceit which will be the subject of an action for damages.
Where parties deal with each other on a footing of equality,
there must be some existing circumstances or some means used
calculated to prevent the detection of falsehood or fraud, and
impose upon a purchaser of ordinary intelligence, prudence, and
circumspection. If the purchaser has full opportunity to exam-
ine the property, and can easily and readily ascertain its quality
and value by inspection, and he neglects to do so, then any
injury which he may sustain by such negligence is the result
of his own folly, and he can have no relief at law, unless the
representation was of such a character as to mislead a prudent
person or put him off his guard. The law wisely and justly
presumes in such a case that a purchaser will take care of his
own interests, and that, when he distrusts himself, his own judg-
ment and shrewdness, he will protect himself from imposition.^
1 Pugh, J., in Spencer r. King, Franklin Co. Com. Pleas.
Sec. 2267. Same continued — Opportunity of inspection.
When the purchaser has a full opportunity to inspect the
property, but fails to do so, and the representations were not
such as should have misled him, he has no right to complain
if the property sold does not measure up to the representations
of the seller.^
1 Pugh, J., in Spencer v. King, Franklin Co. Com. Pleas.
SALES — WARRANTY. 2071
Sec. 2208. Same continued— What commendations may* be
made — Dealers talk.
It is well known that, in the course of trade, vendors will
speak in terms of high commendation of the property which
they are offering for sale. Such "dealing talk" is not deemed
in law as fraudulent, unless accompanied with some artifice
calculated to deceive the purchaser and throw him off his guard,
or some concealment of intrinsic defects not easily discoverable
by reasonable diligence and care.^
1 Pugh, J., in Spencer v. King, Franklin Co. Com. Pleas.
Sec. 2269. Expression of opinion by seller as to amount,
value and quality.
The opinion which the seller of property expresses concern-
ing the amount, value, and quality is frequently asked for and
given at sales, and is never ground for a law suit when it proves
to be untrue, if it was only an opinion and was honestly given.
But if the statement of the value was more than an opinion,
if it was an affirmation of a speeifie material fact, if it was
deliberately made by the seller who had superior knowledge in
regard to it, and if it was acted upon by the huycr, .iiid if it
was kno^vn to the seller to be false, it may be deemed fraudulent
and a sufficient basis for an action. The nde of law api)licable
to this matter is this: The property in questior^ was situated
in another state not accessible to the observation and judtriiirnt
of either party. If the defendant had knowledge of its value
superior to the other party, if he deliberately represented that
it was worth dollars per acre, and that was inor.' than
the general praise or puffing whieh sellei-s are liahh' to induigi'
in, if he knew it was false, and if the plaintiff, acting upon
such representations, purcha.sed Uw. property, it is eomi.etent
for you to infer that it was a fraiidiilrnt i-ei>ns<'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 <liily,
who are at the time observing ordinary car." and pnidenee for
their own safety, may not couw. in contact therewith and he
2112 INSTRUCTIONS TO JURY.
injured thereby. This duty rests upon the railway company
even though the poh^ cr poles were placed there by another com-
pany and was not part of the equipment of the railway company.
4. Alternative findings hy jury as to responsibility of railway
company.
If the jury find that the railway company used ordinary care
to furnish a safe place to work, and that it maintained a safe
place for plaintiff to work, and that it exercised ordinary care
so that its cars were not run in such close proximity to any pole
or poles which were located along the line of its track at the
place in question in this case, so that its servant, to-wit, the
plaintiff, as conductor in running and operating the car in
question here, himself observing ordinary care for his own
safety, could not come in contact with the pole in question,
then the railway company can not be held liable for any damages
which the plaintiff may have sustained by coming in contact
with the pole, and your verdict should be in favor of the railway
company in such case.
But if you find that the railway company did not exercise
such care, that it was guilty of negligence, and if you find that
such negligence was the proximate cause of the injury to the
plaintiff, and that the injury was not caused by the plaintiff's
sole negligence, and you further find that the plaintiff did not
voluntarily assume the risk from injury from the pole, ^\^th full
knowledge of its dangerous proximity to the track and passing
cars, and with competent means of obtaining such knowledge,
then the plaintiff is entitled to recover against the defendant,
the railway company, and a verdict at your hands.
5. Knowledge of danger — Assumption of risk hy plaintiff. If
the plaintiff knew of the dangerous proximity of the pole to
the track, or if by the exercise of ordinary care he could have
known of it, and if he continued to work for the defendant upon
the car as conductor with such knowledge, then he must be held
to have assumed the risk of injury by coming in contact with
the pole, and the plaintiff will not in such case be entitled to
recover against the defendant, the railway company.
STREET RAILWAYS. 2113
In determining the question of assumption of risk by the
plaintiff, the jury will consider whether the alleged danger was
an apparent or concealed one, the care required of him in cither
case being ordinary care, varying with the circumstances. Tlie
plaintiff must be charged with knowledge of dangei-s such as is
involved in this case only so far as he would ordinarily obtain
knowledge thereof in the performance of the duties re(iuired of
him in his employment.
6. Legal oUigation of telephone company. The legal obliga-
tion resting upon the defendant, the telephone company, was
to exercise ordinary care in locating and maintaining its j^olcs,
^nd the pole in question here, and not to place and maintain
them in such dangerous proximity to the track of the railway
company, and that the same shall not be set or placed and
allowed to remain in such close proximity to the track that the
same may come in contact with the servants or employes of the
railway company who are in the observance of ordinary care
for their own safety in the operation of tlieir cars along the line
of such railway track, and which pass such pole or poles.
7. Alternative findings by jury as to liability of telephone
company. If the jury should find that the injury resulted from
the plaintiff's coming in contact with a telephone pole, and you
should find that the telephone company was not guilty of negli-
gence according to the rules of law stated in these instructions,
that would relieve the railway company from the charge of
negligence, because the negligence claimed by plaintiff against
the railway company is the non-observance of ordinary care in
running its cars in such close proximity to the jxjles erected by
the telephone company as to endanger the safety of tlie servants
of the railway company, and this plaintiff, who are in tlie ob-
servance of ordinary care for their own protection; so tliat it
follows that if you find neither the telephone eonipanv nor \\\y>
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 rrn<lily under-
stand. Such a plea, that is the plea of coutrilMilory negligence,
when interposed by a defendant, proceeds ui)on the tacit adniis-
2118 INSTRUCTIONS TO JURY.
sion that the defendant itself was guilty of some negligence and
that the neglect of the plaintiff contributed as the direct and
proximate cause of the injury. I make this explanation because
of the claims of the parties in this case for the purpose of draw-
ing a comparison and illustrating the point clearly to the jury.
But understand, gentlemen, that no such plea of contributory
negligence is made by the defendant in this case. On the con-
trary, the plea of the defendant in this case is that it was not
guilty of any negligence, and it may substantiate that plea by
showing that not only it was not guilty of any negligence, but
that the plaintiff was guilty of negligence and that his own neg-
ligence was the cause of the injury. So that you can see the
difference between a plea of contributory negligence and a claim
that the plaintiff was guilty of negligence and tliat the defendant
was not guilty of any negligence.
3. Duty of driver of vehicle in exercise, of his correlative right.
In the exercise of his equal right in the street, that is the plain-
tiff's keeping in mind as he must do the fact of the nature
and manner of running street cars on the rails in the streets
of a city, the speed at which they are run when not excessive,
as compared with the speed of a heavily loaded wagon, as well
as the ability or inability 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 opportunity 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 tracks 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.
4. Driver of vehicle may assume that motorman will exercise
ordinary care. The driver of the vehicle, in attempting to cross
the track under such circumstances, and while observing ordi-
nary care, keeping in mind the considerations already mentioned.
STREET RAILWAYS. 2119
has the right to act upon the presumption that the motorman in
charge of the car will himself obsen-e ordinary care in tlie man-
agement and control of the ear, and that he will, that is, the
motorman will, observe the rights of the drivers of vehicl.-s
who are in the proper exercise of their reciprocal rights in tlie
streets.
5. Failure of driver to use oi'dinary care, or if he miscalculates.
If the driver fails to observe the ordinary care required of him,
and by reason of such neglect he miscalculates, or, if he fails to
observe the approach of the car and passes in front of the ap-
proaching car in such close proximity thereto as that the motor-
man by the exercise of ordinary care in observing a k)okout and
while running at a lawful rate of speed, and having the car under
reasonable control, can not stop his car in time to avoid the col-
lision and injury, using ordinary care to do so, and the car does
not run into the vehicle and injure the driver, the latter can not
in such case recover. Now, gentlemen, these are the general
doctrines and rules of law which the court gives yon as applie-
able to the facts and circumstances and tlie respective claims
of the parties in this case. The plaintiff may not recover com-
pensation for any damages which he might have avoided by the
use of ordinary care under the circumstances. If you find that
plaintiff did not observe ordinary care under the rules giv<'n
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 slioubl
in such case be for the defendant.
We come now to the charges of negligence against the <lefend-
ant.
6, Duty of railway company to drivers of vehicles. As al ready
stated, the railway company has equal riglits in the street.s with
the plaintiff, but the railway company in the operation of its <'ars,
owes a duty toward drivers of vehicles who may he crossing its
tracks at street intersections when it is in the act of approaching
2120 INSTRUCTIONS TO JURY.
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 car upon
approaching a street intersection, and the street in question
here, or crassing, to run at a lawful and reasonable rate of speed.
And it is bound to use ordinary care and prudence in the man-
agement and control of its cars, to keep the same under such
reasonable control as not to endanger the safety of a person driv-
ing a vehicle across the track, the latter using ordinary care
at the time. In other words, it is the duty of the railway com-
pany to approach the street intersection at such reasonable rate
of speed, and the motorman is required to be on the lookout for
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 lawfully and
prudently passing across the tracks. And if ordinary care
requires it under the circumstances, it should check the speed
or stop the car. Whether or not ordinary care requires a ear
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
within 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.
7. Motornian observing ordinary care may assume that driver
of vehicle will use same catre in crossing. If the motorman in
charge of the car of the defendant Avas traveling at a moderate
and reasonable rate of speed and was at the time observing
ordinary 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 to the street intersection for the purpose of crossing
the same, and he had the right in such case to assume or pre-
STREET RAILWAYS. 2121
sume that if anyone was approaching the crossing or was near-
ing and in plain sight of the approaching car, that he would
have his vehicle under proper control and would himself exer-
cise ordinary care to avoid collision. He would liave 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 a right to assume that the plaintiff would do these
things in this case in crossing the track. If, therefore, the
motorman was observing the above requirements as to speed
and control of the car, if he sounded his gong and warned plain-
tiff of the approach of the car, and if he acted mistakenly upon
such assumption as to what the driver sliould do, as the court
has explained to you, the motorman then in such case can not be
said to have acted negligently.
8. Alternative findings jury may make. If the defendant was
running the car at any excessively high rate of speed, and if
he did not have reasonable control of the car, and if he wiis
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 ap-
proaching 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 immoderate rate of speed, and if he did have r('as(>ii.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 detenti<m of guest at hotel supposed to be using room for
inimornl purposes, § 1768.
responsibility of hotel proprietor, § 1768.
claim of justification that wife of guest occupied room without
right, p. 1510.
Compensatory damages, p. 1511.
Exemplary damages, p. 1512.
Arrest and detention, p. 1508.
Where fact of imprisonment and discliarge conceded, § 1769.
burden of proof, p. 1515.
to prove justification, p. 1515.
when arrest may be made for misdemeanor, p. 1516.
INDEX. 2201
False representations —
(See Fraud.)
Fellow-servants —
Who are, when one placed in control of another, § 2020.
Rule for determining who co-employe or vice-principal, brakeman and
foreman, § 2021.
Conductor and brakeman, § 2023.
Engineer and train dispatcher, § 2024.
Acts done by request of a, liability of master, § 2025.
Warning of danger by, § 2027.
Financial condition —
As affecting damages, § 1955.
Fire —
Communication of, from locomotive, §§2221, 2222.
Flagman —
Right and duty and responsibility for railway, § 1499, par. 5.
Flight —
Instruction concerning, p. 1293, § 1744.
and change of name, p. 1445.
Flying switch —
Shunting cars across street crossing, § 2214,
Fraud —
Not presumed, burden of proving, § 1770.
Remedies for, rescission and restoration, § 1771.
Defined. § 1772.
proof of, § 1773.
Contract rescinded and tender made. § 1774.
election to rescind within reasonable time, § 1775.
Representation must be material, § 1770.
Misrepresentation by concealment. !i 1777.
False representations without knowledge of truth, § 1778.
Ingredients of actionable, intent to deceive. § 1779.
puffing and conimendatitm, § 1779.
must be misled, § 1779.
As to existing or j)ast fact, 8 1780.
Fraudulent jironiiso coui)Ied with intent not to fnltill, § 1781.
Fraudulent promise not to engage in business, § 1782.
2202
INDEX.
Fraud — Continued.
Representation as to value, § 1783.
Jury to find what representations made, must be relied upon, § 1784.
On old person, what constitutes, proof, § 1785.
Fraudulent purchase of goods, elements, knowledge of falsity, stating
belief without knowledge of truth, § 1786.
vendor may abide by or rescind, § 1787.
liability of corporation for fraud of agents, § 1788.
power of agtnt to make statement as to credit and financial con-
dition of principal, § 1790.
Purchase of goods with intent not to pay, insolvency concealed, § 1791.
circumstances may establish falsity, p. 1553.
representations must be material and relied upon, p. 1553,
In sale of stock in proposed company, § 1804.
burden of proof, p. 1555.
degree of evidence, p. 1555.
proof of intent and purpose, circumstantial evidence, p. 1556.
declarations, p. 1556.
failure of party to offer evidence or make explanation naturally
expected of him, p. 1557.
failure to call witness, p. 1557.
jury may reason from probabilities, p. 1557.
failure to recollect important facts, p. 1557.
fraud defined and explained, p. 1558.
must be relied upon, p. 1558.
materiality, p. 1558.
promises, when fraudulent and when not. p. 1559.
whether written contract or previous declaration relied upon, p.
1561.
In declaration of dividend by directors, § 1805.
burden, p. 1563.
wrongful conduct supplies intent, p. 1563.
knowledge of falsity, actual or imputable, p. 1564.
whether .statements made knowingly fraudulent or recklessly ao,
p. 1565.
duty of directors, p. 1566.
directors voting or asenting to dividend liable when, p. 1568.
materiality, p. 1571.
measure of damages, p. 1571.
Mercantile agency, liability for false reports, S 1791a.
Transfer of property by one in debt without consideration, § 1792.
In sale of horse whetlier vicious, § 1793.
purchaser injured while driving, § 1793.
vendor's knowledge of defects, duty as to notice, § 1794.
measure of damages, § 1795.
Representations assumed to be within one's knowledge, recklessly made,
§ 1796.
INDEX. 2203
Fraud — Continued.
Fraud preventing examination of land in sale, § 1797.
Fraudulent representations as to location of city lot, § 1798.
Whether son fraudulently pursuades parent to make beneficial dis-
position of property to him, § 1799.
Representations as to value of stock, opinions, § 1800.
In obtaining insurance policy, § 1801.
the statute, p. 1544.
degree of evidence, p. 1545.
Its definition and elements, p. 1546.
Measure of damages exchanging land for merchandise, § 1802.
Concerning merits, working and adaptibility of patented machine
§ 1803.
representation and warranty distinguished, p. 1549.
essentials, p, 1549.
purchaser to be diligent, p. 1550.
when facts peculiarly within knowledge of other party, p. 1550.
existing facts distinguished from opinion and dealers talk, p. 1550.
mfttters within knowledge of vendor, p. 1550.
Of vendee in purchasing property, § 2244.
Frightening horses —
In field by unnecessary blowing of whistle of traction engine, § 2139.
Frog —
Failure to block, § 2226.
G
Gambling contracts —
For sale of grain to be delivered in the future, § 1806.
intention of parties governs, p. 1573.
fact that one party acts as commission merchant does not change
relation, § 1807.
Money lost by person dependent for support on one losing money,
§ 1808.
Garage proprietor —
(See Bailment.)
Gift —
Inter vivos, § 1809.
What constitutes valid, § 1810.
Retaining dominion over, § 1811.
Of mortgage or money represented, § 1812.
2204 INDEX.
Grand jury —
Complete and concise charge to, § 1813.
Introductory, § 1814.
Origin of, § 1815.
To institute criminal proceedings as well as to guard against unjust
accusations, § 1816.
Oath and responsibility imposed thereby, § 1817.
Special charge as to bucket-shops, gambling in margins, § 1818.
Character of evidence to warrant indictment, § 1819.
Legal evidence only to be considered, § 1820.
Looking at guilt and innocence, § 1821.
Scope of inquiry, § 1822.
Secrecy must be observed, § 1823.
H
Haxboring females —
House of ill fame defined, of good repute. 5 1824.
harboring defined, § 1824.
good repute for chastity defined, § 1825.
Homicide — Murder — Manslaughter —
Preliminary instruction as to duty of jurors, § 1826.
The indictment, § 1827.
Plea, — not guilty — insanity, § 1828.
Burden of proof, § 1829.
of insanity, § 1830.
degree of evidence to prove insanitj', § 1831.
Insanity, § 1831a.
Presumption of innocence, § 1832.
Reasonable doubt, § 1833.
Circumstantial evidence, § 1834.
Jurors must reason together, § 1835.
Credibility of witnesses, § 1836.
Reputation of defendant for peace and quiet. § 1837.
Essential elements to be proven, § 1838.
First degree murder includes lesser degree, S 1839.
Law of, murder in first and second degree, and manslaughter defined,
§ 1840.
Intent, § 1841.
Malice, § 1842.
Deliberation and premeditation, § 1843.
Murder in second degree distinguished from murder in first degree,
§ 1844.
Manslaughter, § 1845.
provocation sufficient to reduce to manslaughter, § 1846.
INDEX. 2205
Homicide, etc. — Continued.
As to form of verdict, p. 1617.
adequate or reasonable provocation, § 1847.
reasonable suspicion of infidelity of wife not sufficient, § 1848.
Assault and battery and assault defined, S 1849.
What is essential to conviction in the first degree, § 1850.
An act feloniously done, § 1851.
Inflicting mortal wound with deadly weapon, inference from, § 1852.
Person intends natural consequences of his act, § 1853.
If not found guilty of murder in first degree, may be of second, § 1854.
May find guilty of manslaughter when, § 1855.
May find guilty of assault and battery, § 1855.
Defendant as an aider and abettor, § 1857.
defendant, though guilty of no overt act, entered into conspiracy,
aider and abettor, § 1858.
Intent to kill in murder in second degree, use of deadly weapon, § 1859.
Malice, character of weapon used to be considered, § 1860.
Manslaughter, no malice in, — provocation, to reduce. § 1861.
provocation, all surrounding circumstances to be considered, cool-
ing time, § 1862.
Malice in m\n-der, another form, § 1863.
another different form, § 1864.
Deliberation and premeditation, another form, § 1865.
"Purposely," '"unlawful," '"feloniously," § 1866.
Proof of purpose to kill, malice, deliberation and premeditation, § 1867.
Person assumes reasonable consequences of his own act, § 1868.
Manslaughter, what is, § 1869.
person present doing no overt act not aider, § 1870.
Self-defense, see Self-defexse.
Previous character and reoutation, § 1880.
Hotel keeper —
Duty and liability, p. 1510.
Husband and wife —
Claims of wife to stock on farm against creditor of luisband. p. 2044.
must rebut presumption of ownership by husl)and, p. 2044.
must show separate property, or receii>t 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 <if property recently stolen, § 21W)
Possession —
Of property recently stolen, § 2166.
Premeditation —
(See Homicide.)
2216 INDEX.
Preponderance of evidence —
Not weighed in mathematical scales, p. 2044.
Presumption —
That every person exercise care for his own safety, § 2215.
burden on defendant to prove decedent did not look and listen,
§ 2215.
Presumption of innocence —
Full instruction, in bribery, p. 1288.
Promise —
When fraudulent, p. 1559.
Promissory notes —
Burden of proof wlien consideration attacked, § 1561.
Genuineness of signature, § 15G2.
Purchase before maturity witliout notice of illegal consideratiob,
§ 1563.
Consideration, delivery, denial of execution, alteration, expert testi-
mony as to signature, § 1564.
Transfer of, after maturity, § 1565.
Endorsement in blank, transfer before maturity, § 1566.
Liability of surety on, how reviewed, efifect of subsequent promise,
§ 1567.
Extension of note, consideration, payment of interest in advance,
§ 1568.
Alteration, adding words, etc., § 1569.
by adding name of third person, § 1570.
by inserting words "to be paid annually," § 1571.
Demand and notice essential to hold endorser, § 1572.
Endorsement of, notice, § 1573.
When maker of, entitled to demand, § 1574.
Forgery as a defense, estoppel to set up, § 1575.
Province of court and jury —
Relation of court, jury and attorney, zeal of counsel. § 1456.
Introductory in criminal case — jury and court — attorney.s, § 1457.
Appropriate remarks in opening of charge, § 1458.
anotlver form of opening statement, § 1459,
Preliminary admonitions because of importance of case — bribery case,
p. 1263.
Jury cautioned not to draw inferences from rejected testimony, p.
1264.
INDEX. 2217
Provocation —
(See Homicide, Manslaughtek. )
Proximate cause —
Defined and explained, §§2106, 2107.
Contributory negligence must be. §2110.
In auto negligence, § 1537.
Diflferentiated from concurrent negligence, p. 1828.
Puffing —
(See Fraud.)
R
Railroads —
Joint occupancy of sidetrack by two companies, § 2045.
relation of servants of each, § 2045.
injury to servant by failure to inspect track, § 2045.
Duty to persons habitually permitted to travel over tracks, § 2217.
common use of tracks as public passageway, §2218.
Injury to one walking on tracks, company bound to give warning
after discovery, § 2219.
Duty to trespassers on track after discovery, § 2220.
Required to guard against fire from locomotive, § 2221,
negligent communication of fire, § 2222.
Injury to stock on tracks, § 2223.
Misplacement of switch, § 2225.
Failure to block frog, § 2226.
Omission to adjust block switch, § 2227.
Injury to person on depot platform from mail pouch, § 2228.
Injury to person on right of way long used by public by lump of coal
falling from car, producing unconscious condition, being
struck by yard engine, § 2229.
no duty except to refrain from willfully or negligently injuring
(licensee) after discovery, §2229.
Railroads, as carriers of passengers —
Relation of carrier and passenger, § 2167.
As carrier, to exercise high degree of caro, §2168.
Passenger must observe care for his safety, § 2169.
Not bound to carry passengers on freight trains, §2170.
Duty to furnish safe passage to and from trains, §2171.
When failure to carry passenger safely shown burden cast on carrier,
§2172.
Ticket agent's duty and authority, reliance upon by passenger, § 2173.
Duty as to putting ofT passenger at destination not stopping placo
for train, §2174.
authority of local ticket agent to bind companv, §2174.
2218 INDEX.
Railroads, etc. — Continued.
Right to eject persons for failure to pay fare, §§ 2175, 2176.
when unnecessary force used, § 2176.
drunken or boisterous passenger, § 2176.
wrongful ejection through error of judgment, § 2177.
measure of damages, §2178.
Duty to provide safe platform,. § 2179.
Duty to passenger boarding train, § 2180.
Protection of passenger from violence, § 2181.
assault not committed in master's business, § 2182.
Stopping trains at stations for passengers to get oflF, §§ 2183, 2185.
Duty of passenger falling from train, §2184.
Contributory negligence of passenger, §§ 2186, 2187.
Right of passenger to remain in waiting room, § 2188.
Negligence of sleeping-car employee, § 2189.
Injury to conductor riding on train other than his own, § 2190.
Liability for injury to passenger assisting sick passenger, §2191.
Railroad company —
(See Mastik and Servant, Railroads, Railroad Crossings.)
May make rules for employees, § 2041.
liability when violated, § 2042.
Railroad crossing —
Duty of driver of auto at, § 1540.
Failure to provide gates, § 1678.
or to give warning, p. 1402.
failure of driver and occupants of wagon to look and listen for
ajiproaching train, p. 1405.
occupant of wagon having right to direct or control one whose
negligence contributes to injury, husband and wife, p.
1406.
if husband or wife saw or could have seen train, p. 1407.
misled by absence of flagman, p. 1407.
failure to ring bell or sound whistle, p. 1407.
vision obstructed by buildings, p. 1408.
Assault and battery by flagman at, § 1409.
Relative riglits and duties of jjcdcstrians and company, § 1499, par. 4.
Duty of flagman at. § 1499, par. 5.
Relative rights and duties of company and public at, §§ 2192, 2197.
both must use faculties to discover danger, § 2192o.
duty to use senses on a))proaching. § 219:i.
signals when approaching, §§2194, 2195.
omission to ring bell and sound whistle. §2196.
may drive on when train standing still, § 2197.
failure to look and listen, § 2198.
INDEX. 2219
Railroad crossing — Continued.
Relative riglits and duties, etc. — Continued,
duty to give warning, § 2198.
must use senses, slacken speed or stop, p. 1992.
duty to provide safeguards when structures render dangerous,
§2199.
negligence of pedistrian, § 2199.
flagman and gateman, p. 1994n.
duty of driver approaching when view unobstructed or obstructed,
§ 2200.
duty when flagman gives signals, § 2200.
injury to pedestrian at, § 2201.
duty when there is temporary obstruction, § 2201.
duty of one driving across, §§ 2202, 2203
train has right of way, § 2202.
duty of engineer in approaching, § 2204.
Concurrent miscalculation of engineer and driver, § 2205.
Duty of gateman in lowering gates, § 2206.
Duty of driver oi automobile at, § 2207.
when vision obscured, § 2207.
may rely on gateman giving notice, § 2208.
when placed in sudden peril, § 2209.
imputing negligence of driver to occupant, § 2210.
Injury caused by backing train on vehicle at, §2211.
Injury to child climbing over train stopping at, § 2212.
contributory negligence of child, §2213.
Shunting cars while making flying switch across, § 2214.
Liability though statutory signals given, when other acts charged,
§ 2216.
Rape —
Defined, § 2230.
Consent of female, § 2231.
Carnal knowledge complete, when, § 2232.
Capacity, burden when under fourteen, § 2233.
Evidence as to character of woman, § 2234.
Resistance, evidence, § 2235.
Assault with intent to commit, § 2236.
force, consent, § 2237.
declarations of prosecuting witness, §2238.
Ratification —
Of agency, sec Agency.
Real estate commission —
(See Broker.)
2220 INDEX.
Reasonable doubt —
Defined, ratlier full explanation in bribery case, p. 1265.
another form, p. 1289.
in burglary, p. 1328.
in murder, § 1833.
in abortion, as to intent, § 1466.
Release —
(See Compromise and Release.)
Replevin —
Short general instruction, § 2239.
Of property of wife seized on execution against husband, § 2240.
ownership, p. 2034.
value of property, p. 2034.
damages, p. 2035.
Conclusion of charge, § 2241.
Of annual products of the earth, § 2242.
Of growing fruit, § 2243.
Chattel mortgagee may prosecute, when mortgage fraudulent, §§ 2245,
2246.
Of hogs by wife from purchaser on execution against husband, § 2246as
(See Husband and Wife.)
Reputation —
Of defendant, in bribery, for honesty and integrity, p. 1269.
What constitutes, § 1731.
must be general in community, p. 1474.
in community where i)arty temporarily resides, p. 1475.
Of defendant in homicide for peace and quiet, § 1837.
Of accusing witness, § 1583.
Rescuing —
One from danger, injury while attempting to, contributory negligence,
§2126.
Res ipsa loquitur —
Injury to passenger by derailment, §2123.
Burden of proof when injury caused by, § 2124.
Respondeat superior —
Effect of disregard of orders of superior servant, § 2022.
Conductor and brakeman, ^ 2023.
Engineer and train dispatcher, § 2024.
Acts done by order of sui)erior servant, danger obvious, § 2026.
Not applicable when there is independent contract, §2134.
INDEX. 2221
Robbery —
Full charge in, § 2247.
Taking property in presence or under the immediate control of
another, § 2248.
Conspiracy to commit, §§ 2249, 2250.
character of evidence to prove, § 2251,
independent conspiracy, § 2252.
Assault with intent to commit, § 2253.
violence concomitant with taking, § 2253.
s
Sale —
When complete, § 2254.
What constitutes valid, § 2255.
Fraudulent contract of, § 2255.
On credit, § 2256.
statement aud conduct of buyer, p. 20G0.
if vendor misled or takes his chances, p. 2060.
Representation of financial condition invalidating, § 2257.
insolvency of buyer — intention, p. 2061.
What language constitutes warranty in, § 2258.
Buyer having opportunity to inspect, caveat emptor, § 2259.
Recoupment of damages where vendee used property under warranty
as to quality, § 2260.
Notice of rescission, when necessary, § 2261.
Through mistake rescinded in action for purchase price, § 2262.
Whether delivery of wheat to mill a, § 2263.
mixing with other, p. 2065.
Action to recover purchase price on, when article unsuitable, rescis-
sion, tender, § 2264.
acceptance and continued use, § 2265.
Fraud and deceit in, § 2266.
opportunity of inspection, § 2267, p. 2073.
commendations — dealer's talk, § 2268.
opinion as to amount, value, quality, § 2269,
Breach of warranty in, of liorse, § 2270.
Scienter —
Proof of, § 1494.
Self-defense —
Assault and battery committed in, § 1500.
Plea of, in assault with intent to kill, § 1507, par. ;.
burden of proof, degree of evidence, § 1507, par. ;.
2222 INDEX.
Self-defense — Continued.
\\hether defendant believed he was about to be robbed — burden on
him to prove, § 1871.
In protection against riotous strikers attempting to stop defendant
from working, § 1872.
Burden of proving, by preponderance, p. 1640.
In ejecting one from saloon, § 1873.
What constitutes, another form, § 1874.
When one may take life of an assailant in (Giddings case), § 1875.
Right to repel assault, § 1876.
Son may defend parent, § 1877.
Justifiable homicide, § 1878.
Common defense from attack, § 1879.
Services —
(See Contract foe Personal Services.)
Settlement —
Of cause, see Compromise and Relb:ase.
Sidewalk —
And cross-walks to be kept open and reasonably safe, § 2052.
municipality not an insurer, § 2052.
In defective condition so long that city presumed to know it, § 2056.
City not liable for mere slipperiness from snow or ice, § 2057.
otherwise, when, § 2058.
City to keep, in reasonably safe condition. § 2060.
Actual or constructive notice to be shown, §§2061, 2062.
To be kept in reasonable repair, § 2062.
Latent defect in. actual notice to be shown, § 2063.
Obstruction of, when building. § 2086.
city may permit reasonable part to be iised, § 2086.
right and duty of traveler to use, § 2086.
city not liable unless has notice and knowledge, p. 1889.
Solicitation —
Of bribe, see Bribery.
Speed —
Excessive, by auto approaching crossing. § 1532.
Precautionary instruction as to description of, by witnesses. § 1542,
par. 14.
duties of auto drivers as to, statutes explained, pp. 1204-1206.
opinion of witnesses as to, of street car, p. 2141.
Statutes of limitations —
Revival of del)t by promise, § 2070rt.
new promise to be in writing. §2271.
On account, § 2272.
INDEX. 2223
Stock —
Injury to, on railroad tracks, §§ 2223, 2224.
Storage —
(See Bailment.)
Street —
Dedication of property to, § 2048.
Interest of abutting owner in, § 2049,
Establislmient of, by general use, § 2050.
May be improved to meet needs within reasonable discretion, §2051.
Pedestrians to use care in passing along, § 2053.
may assume city discharged its duty, § 2053,
Defective, becomes nuisance when, § 2054.
When city liable for defects in, constructive notice, § 2055.
Liability of city for injury to traveler from stone in street, § 2059.
Actual or constructive notice to be shown, §§ 2061, 2062.
To be kept in reasonable repair, § 2062.
Damages to property owner by construction of street, § 2084,
Excavation in, negligence in making, signals or lights, § 2085.
right to travel subject to temporary obstructions, etc., § 2085.
duty to guard excavation, p. 1887.
Street crossing- —
Equality of driver of auto, and pedestrian at, § 1523, par. 5, § 1533,
■ § 1539, pp. 1179-1180, 1184r^.
Street railways —
High degree of care required, § 2273.
utmost or highest degree to passengers, § 2274.
as to cars and appliances, § 2275.
bound not to expose passenger to hazards, § 2270.
incidental hazards assumed, § 2276.
Relation of passenger on acceptance of fare, § 2277.
Bound for acts of employees, § 2278.
Acceptance of person as passenger, S 2279.
relation ceases on alighting, § 2280.
Starting before passenger seated, § 2281.
Injury while boarding, §2282.
duty of passenger, p. 2080.
Boarding while in motion, §§ 2283, 2284.
between streets, S 2285.
contributory negligence boarding moving car, § 2286.
when car moving slowly, § 2286.
Duty to stop at usual stopping places, §2287.
Passenger on signaling attempting to board before it stops, § 2287.
Duty to sto]) long enough t») afford passenger reasonable opjmrl unity
to aliglit. S'22HS.
Dutv to assist passenger in alighting, S 2289.
2224 INDEX.
Street railways — Continued.
Passenger injured leaving car being thrown from car, § 2290.
duty of carrier and passenger, p. 2094.
Duty to stop car when desired stop communicated to cooductor on
boarding car, §2291.
Injury while alighting from car, § 2292.
car not coming to clear stop, then starting suddenly, § 2292.
whose negligence proximate cause, p. 2097.
burden of proving contributory negligence in such case, p. 2098.
Stopping car for passenger to alight, duty of conductor, § 2293.
knowledge of conductor of intention to alight, p. 2100.
Injury while alighting, by catching clothing on car, § 2294.
Ejection of passenger for refusal to pay fare, § 2295.
Damages for wrongful ejection of passenger, § 2296.
Duty to travelers in street, § 2297.
Duty to use ordinary care to pedestrian, § 2298.
Motorman may assume that pedestrian will get out of danger, § 2299.
Pedestrian may assume motorman will use due care, § 2300.
Ordinary care required of person about to cross track at street cross-
ing, § 2301.
Injury to person on track, § 2302.
motorman may presume pedestrian will be prudent, § 2302.
plaintiff may presume com])any will not be negligent, § 2302.
Relative rights and duties of pedestrian and, in streets, § 2303.
Duty when car crossing street intersections where car on opposite
track discharging passengers, § 2304.
Duty in avoiding injury to children apparently intending to cross
street, § 2305.
Duty of parents in permitting children to go in streets, § 2306.
Injury to conductor by being struck by telephone pole while walking
along running-board, § 2307.
negligence defined, p. 2111.
knowledge of danger, assumption of risks, p. 2112.
legal obligation of telephone company, p. 2113.
alternative findings as to two companies, p. 2113.
Injury to passenger while assisting driver of street car, § 2308.
Bound by acts of conductor and motorman, § 2309.
Reciprocal rights of vehicles and street cars, § 2310.
Duty of driver of vehicle to look before crossing, §2311.
Duty of driver to stop vehicle before crossing track when car ap-
proaching, § 2312.
Collision between vehicle and street car at street crossing, §2313.
relative rights of driver of vehicle and. at street crossing, p. 2117.
specific questions of negligence involved, p. 2117.
duty of driver of vehicle in exercise of correlative right, p. 2118.
driver may assume motorman will exercise care, p. 2118.
failure of driver to use care, or if he miscalculates, p. 2119.
duty of company to driver of vehicle, p. 2119.
INDEX. 2225
Street railways — Continued.
Collision — Continued.
motorman may assume driver will exercise care, p. 2120.
alternative findings, p. 2121.
Injury to driver of vehicle at street crossing, another form, § 2314.
relative duties of each, p. 2122.
when driver may undertake to cross track, p. 2123.
conclusions by jury as to conduct of plaintiff, p. 2124.
duty of company to persons crossing street and track, p. 2124.
whether car should be stopped, p. 2125.
conclusion of jury as to conduct of defendant, p. 2125.
concurrent negligence of both, p. 2126.
directions as to verdict, p. 2127.
traffic ordinance, p. 2127.
Injury to passenger in hired automobile from collision with street
car, § 2128.
neither liable for negligence of other, p. 2129.
duty of motorman and driver of, p. 2130.
reciprocal duties of each, p. 2131.
duty as to discovery of intent of driver to cross, p. 2131.
directions as to verdict, p. 2132.
duty of driver of auto to its passenger in crossing track, p. 2133.
negligence of auto driver not imputable to plaintiff, p. 2133.
ordinance as to operation of cars, and autos, p. 2134.
statute as to speed of auto, p. 2135.
direction as to verdict, p. 2135.
damages, p. 2136.
Car of, colliding with auto stalled on track on dark night, § 2316.
duty of railway company, p. 2137.
duty on discovery of auto, p. 2138.
duty of person in charge of auto, p. 2139.
if auto driver negligent, railway must be guilty of new act of
negligence, p. 2140.
speed of car, opinion, p. 2140.
Duty of motorman on meeting horse coming in opposite direction
becoming frightened, p. 2142.
Duty of driver of wagon in crossing track at street crossing, §§ 2318,
2319.
Driver of vehicle arriving in advance of street car, has prior right to
cross, §2320.
Relative rights of street car and driver of vehicle at street crossing,
§2321.
Duty of motorman to discover vehicle about to cross track and avoid
injury, § 2322.
Contributory negligence of children at crossings, § 2323.
Presumption of negligence from collision, § 2.324.
prima facie evidence from collision, § 2325.
Wlien person to be treated as passenger, § 2320.
2226 INDEX.
Substantial performance —
(See Building Coxteact.)
Sudden peril —
Conduct of person placed in, § 2125.
Rescuing person from, § 2126.
Sureties —
Liability of, on bond of agent, who has previously defaulted, §2327.
Contract strictly construed, § 2328.
Creditor accepting, bound to inform them as to business of suretyship,
§ 2328.
For pre-existing debt, § 2328.
Surgeon —
Liability f<5r performing operation without consent of patient, § 1999.
Switch —
Misplacement of, of railroad, § 2225.
Omission to adjust, fill or block switch, § 2225.
Testimony —
And evidence distinguished, § 1542, par. 3, p. 2043.
credibility to be first determined, p. 2043.
Rejected, jury cautioned not to draw inferences from, pp. 1264, 1290.
Negative, p. 1291.
Jury not at liberty to indulge in capricious disbelief of. § 1733.
Traction engine —
Frightening horses in field by unnecessary blowing whistle of, § 2l>
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.
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