61 Ohio Law. Abs. 223 | Ohio Ct. App. | 1951
OPINION
This is an appeal on questions of law from a judgment of the Common Pleas Court in favor of the plaintiff for $1875.00 with costs. The action for wrongful death of plaintiff’s decedent was originally instituted against the defendant railway company and H. L. Young. Upon motion of the defendant, the plaintiff was required to elect, and elected to proceed against the defendant railway company.
The claim of the plaintiff was that on April 9, 1946, H. L. Young, an employee of the defendant corporation, acting within the scope of his employment, intentionally, maliciously and unlawful assaulted and shot plaintiff’s decedent resulting in his death. The answer of the defendant, with the exception of the admissions of the qualification of plaintiff’s administratrix, the corporate capacity of the defendant and that H. L. Young was employed by it as a railway detective, was a general denial.
The facts necessary to an appreciation of our question are that on the night of April 9, 1946, a passenger train of defendant company stopped at its “station in Fostoria, Ohio. While the train was standing, plaintiff’s decedent and a companion by the name of Baker knocked on the door of a Pullman car on the side opposite the station. They wore socks on their hands to serve, Baker says, the purpose of mittens.
At the conclusion of plaintiff’s case, defendant moved for a directed verdict which was overruled. Thereupon the cause was submitted to the jury upon the case as made by the plaintiff. Verdict was returned for the plaintiff and judgment entered upon the verdict, after the overruling of a motion for judgment notwithstanding the verdict. Motion for new trial was also filed and overruled.
Four errors are assigned:
(1) Error on the part of the Court in overruling defendant’s motion for a directed verdict.
(2) Error in overruling defendant’s motion for judgment notwithstanding the verdict.
(3) Error by the Court in refusing to give defendant’s special charge that the acts of Jackson and Baker on the train of the defendant company constituted a felony and error by the Court in charging that any offense committed by Jackson and Baker on the train was a misdemeanor only and that special officer Young had no legal right to arrest them without a warrant.
(4) The verdict was not sustained by sufficient evidence, contrary to the evidence and the law.
The third assignment of error is so related to the other assignments that we first consider the two parts thereof, (a), (b). It is urged that the Court erred in refusing to charge that the acts of the young men in the ladies’ room of the Pullman car of the defendant company in the handling of the lock on the door of the room constituted a felony as provided in §12560 GC. Appellee contends that this section has no application whatever, for two reasons, the first of which is that its subject matter does not apply to a lock on the inside door of a passenger coach. The second is that if it applies to such a lock, the young men committed no offense in what they did respecting the lock. If the statute is applicable the following language is pertinent:
“Whoever, without proper authority * * * disarranges or destroys a lock ***ona*** car, * * * or other property of such railroad, * * * shall be * * * imprisoned in the county jail not less than thirty days or in the penitentiary not more than ten years.”
The disposition which we make of the third assignment of error is largely determinative of the first and second assignments. Counsel both rely on the case of New York, Chicago & St. Louis Railroad Company v. Fieback, 87 Oh St 254, the appellant upon both syllabi and the appellee on the second syllabus particularly. We are of the opinion that the second syllabus affords support for the action of the trial judge in submitting the case to the jury upon the testimony on behalf of the plaintiff. It is insisted that the testimony of the plaintiff did not afford sufficient proof to carry the case to the jury upon the issue of the authority of officer Young from the company to make the arrest of Jackson. The special policeman, duly commissioned, had such powers to make an arrest as were delegated to him by the applicable provisions of the Code. The Fieback case holds that,
“A railroad company is not liable for the wrongful acts of such officer while acting by virtue of his office, unless such wrongful acts occurred in the performance of an act which was outside of the public duties of a policeman, and which was authorized or ratified by such company.”
The trial judge charged that the acts of the officer will be presumed to have been done as a public officer pursuant to authority derived from his appointment, until that presumption is overcome by sufficient evidence. The jury having-found, as it must have found, that the attempted arrest was made without a warrant for an offense which was a misdemeanor, the performance of that act was outside of the public duties of a policeman. There was then left the further question whether or not the arrest was authorized by the defendant company. This is the only question of substance in this record.
The first and second assignments of error are not well made.
The fourth assignment of error goes to the weight of the evidence as well as its sufficiency and upon this claim there is, in view of our holding, but one question left, viz., whether the evidence supported a money judgment in any sum or to the amount of the verdict. The testimony of the mother of plaintiff’s decedent was to the effect that he was employed as a janitor prior to the time that he went to Flint, Michigan, from where he was returning when he was shot; that every week he contributed to her support. The amount of his earnings or the amount of his contributions were not stated. In Minglewood Coal & Ice Co. v. Carson, 31 Oh Ap 237, it is held that,
“The law giving the right to recover damages for unlawful death, not providing any rule to determine the amount of damages recoverable, except that ‘the jury may give such damages as it may think proportioned to the pecuniary injury resulting from such death,’ the jury may use their own experience in the conduct of human affairs in arriving at the amount of their verdict based upon the facts established.”
In the recent case of Immel, Admr. v. Richards, 154 Oh St 52, an appeal from this Court, 56 Abs 132, the Supreme Court affirmed a judgment for the plaintiff for $5000.00 for the wrongful death of a nine months of age child. It was beyond the power of the plaintiff to show what, if any earning capacity the child would have or to what extent it would provide pecuniary assistance to its next of kin. In such cases, and in this case, there is nothing very definite upon which to predicate a verdict and a jury must draw upon its common experience of the probable money assistance which was taken from decedent’s next of kin by reason of his death in the light of all the facts presented. The jury in this case did not evaluate the pecuniary loss to plaintiff’s decedent’s
In a case such as this where the conduct of plaintiff’s decedent leading up to the attempted arrest was clearly wrongful and aggravating in the extreme, there might be a tendency to say that his next of kin should not be protected by reason of his demise. On the other hand, one unlawful act does not justify the commission of another.
Upon the conclusions which the jury had the right to draw from the facts in this case the shooting of plaintiff’s decedent was inexcusable, unlawful and willful. We find no error in the trial of the cause in any of the errors assigned which would require its reversal.' The judgment will be affirmed.