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(27 Ohio App. 179)

(161 N.E.)

STOCKYARDS BANK v. SEAL. Court of Appeals of Ohio, Hamilton County. Oct. 3, 1927.

1. Action 27(5)-Action against bank for failure to pay checks held one for breach of contract and not one in tort; "credit."

Action against bank for failure to pay plaintiff's checks, petition alleging that plaintiff had with said bank deposits and credits, held an action for breach of contract and not one in tort, where it appeared that plaintiff did not have sufficient deposit within Gen. Code, § 710-117, to pay smallest of checks, and relied for their payment on an alleged contract for credit with bank; "credit" being among other things a debt due in consequence of a contract for borrowing money.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Credit.] 2. Appeal and error 1050 (2)-In action against bank, admission of evidence, to show malice, of controversy between plaintiff and bank's president as to foreign matters, held prejudicial error.

In action against bank for failure to pay plaintiff's checks, admission of evidence, on question of malice as against bank, of controversies between bank's president and plaintiff growing out of matters not connected with bank or shown to have been ratified or participated in by bank, held prejudicial error.

3. Damages 92-Punitive damages may be awarded only against one participating in an offense.

Punitive damages can only be awarded against one who has participated in an offense.

4. Principal and agent 159(1)-Principal is not liable for punitive damages for wanton or malicious conduct by agent.

Principal cannot be held liable for exemplary or punitive damages by reason of wanton or malicious conduct on part of agent.

5. Master and servant 300-Employer cannot be punished for personal guilt of servant unless authorized or participated in.

An employer cannot be punished for personal guilt of his servant or agent unless employer authorized, ratified, or participated in wrongdoing.

Action by Christ C. Seal, doing business as C. C. Seal & Co., against the Stockyards Bank. Judgment for plaintiff and defendant brings error. Reversed and remanded.--[By Editorial Staff.]

Roy Manogue, Wm. J. Rielly, and John C. Hermann, all of Cincinnati, for plaintiff in

error.

Walter K. Sibbald and Edward T. Dixon, both of Cincinnati, for defendant in error.

CUSHING, J. Christ C. Seal, in December, 1924, was engaged in the business of buying and selling live stock at the Cincinnati Union

Stockyards, under the name of C. C. Seal & Co. He had an account with the Stockyards Bank. In that month, a controversy arose between the bank and Seal with reference to his account. He subsequently brought an action against the bank, as he claims, for its refusal to pay five checks drawn by him.

December 18, 1924, the president of the bank and several of the directors, at an informal meeting, conferred with Seal as to the status of his account. He was advised that on account of numerous overdrafts his account was not satisfactory to the bank.

Seal, between December 17th and December 21st, drew and mailed a number of checks on his account. Monday, December 22d, Seal's account was credited with $289.93 cash. On December 20th, he drew and sent to the bank three drafts, one on Chicago, one on Wilmington, Del., and one on Philadelphia, aggregating $7,710.77. The bank claims that these drafts were entered in his passbook for collection, and he was so notified on arriving at his office, Monday morning, December 22d. His contention in this case is that at the conference on December 18th the bank agreed to give him credit for said drafts.

December 22d the bank returned five checks

drawn by Seal on his account, marked "Not sufficient funds."

This action was filed in January, 1925, against the bank. The petition stated that on December 20, 1924, he had on deposit in his account in the defendant bank, and available in the regular course of business of said bank, for the payment of such checks as plaintiff might draw against said deposit, a sum in excess of $7,800.

On the second day of the trial, plaintiff, by leave of court, filed an amended petition, stating that on the 20th day of December, 1924, he had deposits and credits with said bank in excess of $7,800, and that on Monday, December 22d, the bank willfully and maliciously failed, refused, and neglected to honor and pay out of said funds and credits, on deposit to plaintiff's credit in said bank, checks previously drawn by plaintiff and presented to said bank for payment in a sum amounting to about $6,900.

The answer admitted the presentation and the refusal to pay said checks, and states that the plaintiff at that time did not have to his credit in said bank account a sum sufficient to pay said checks, and denied generally all other allegations of the amended petition.

Judgment was entered on the verdict in favor of Seal, and this action is prosecuted to reverse that judgment.

The questions of law are:

Did the amended petition state a cause of action for a breach of a contract, or an action in tort?

Did the court err in admitting evidence of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

a controversy between Dater and Seal over the sale of one hog, which sale was made by Dater to Seal in his business as a dealer in live stock, at the Cincinnati Union Stockyards, and in admitting evidence as against the bank of what Dater said as president or head of the Stockyards Exchange to the secretary of that exchange about having Seal "posted" as a member of said exchange?

Did the court err in its charge to the jury? [1] It is not important, except for the purpose of retrial, to determine whether the action as stated in the petition and amended petition was in contract or in tort.

The original petition stated that plaintiff had on deposit a sum in excess of $7,800, and that the bank willfully and maliciously failed, refused, and neglected to honor and pay out of said funds on deposit to plaintiff's credit in said bank checks previously drawn by plaintiff and presented for payment.

The only claim made was that he had a deposit with said bank. "Deposit," as used in section 710-117, General Code, means the bailment of money to be kept for the depositor, without reward, and returned when he shall require it.

The record is that Seal had only $289.93 on deposit at the time the checks in question were presented for payment.

There were no statements in the original petition, other than that the bank willfully and maliciously failed and refused to pay said checks, that would justify the claim that the bank was guilty of negligence. Hilsinger v. Trickett, 86 Ohio St. 286, 99 N. E. 305, Ann. Cas. 1913D, 421. The bank was charged with the duty, where a deposit had been made, of holding and paying on demand the deposit that plaintiff had with it.

The amended petition states that plaintiff had with said bank "deposits and credits." This was denied by the answer.

The plaintiff, not having a deposit sufficient to pay the smallest of the five checks in question, we must then look to the claim that he had credits with which to pay said checks.

A credit, among other things, is a debt due in consequence of a contract for borrowing

money.

The claim in this case is that the bank had agreed to cash the three drafts above referred to. That means that the plaintiff claims that the bank agreed to lend money on these drafts.

Section 710-136, General Code, authorizes banks to lend money on such instruments. The language of the statute is:

"Commercial banks may loan money upon

* drafts, bills of exchange, trade and bank acceptances, and other evidences of debt."

This brings us to the question of whether the action was for a breach of contract or an action in tort.

Many actions have been brought against

such actions have been in contract and some in tort. The question as to the nature of the action is discussed in Smith's Cash Store v. First Nat. Bank of San Francisco, 149 Cal. 32, 84 P. 663, 5 L. R. A. (N. S.) 870.

An action in tort may be filed when the depositor has in bank sufficient funds-cash -to meet the checks drawn by him. When such is the case, if he be a trader, he may sue in tort, as the refusal to pay the money that he has on deposit may, and undoubtedly would, affect his credit.

Another line of cases holds that, where a depositor in a bank relies on credits, and credit is not given, or is withdrawn, the bank may be liable for a breach of its contract.

The amended petition stated an action based on deposits and credits, but, as pointed out, the money on deposit was less than $300, and the smallest of the five checks drawn against his account was for $805.67.

It is clear that Seal relied for the payment of these checks on a credit with the bank. The contract for credit, if any, was made on December 18, but, as the court held that this was an action in tort, it did not define contract, nor submit the question as to whether there was a contract between the parties to the jury. But, if there was such a contract entered into, the bank would be liable only for a breach of it, unless the petition stated facts showing malice, or some breach of duty that the bank owed the plaintiff, or that it had some ulterior motive for refusing or withdrawing credit. In the absence of such statement, our conclusion is that the action was for a breach of contract, and not in tort. The court therefore erred in its charge to the jury.

[2-5] The court also erred in the admission of evidence on the question of malice, and in its charge to the jury on that subject.

Charles H. Dater, referred to above, occupied three positions. He was president of the defendant bank. He owned, or was the head of, a company at the Cincinnati Stockyards, engaged in dealing in live stock, and he was president of the Stockyards Exchange.

The court admitted evidence, as against the bank, of a controversy between Dater and Seal, growing out of the sale to Seal of one hog, by one of Dater's employees, and also admitted evidence of what Dater, as president of the Stockyards Exchange, said to the secretary of that organization about Seal, and about having him "posted" under its rules.

These acts of Dater's were not admissible against the bank to show malice, or to charge it with punitive damages, unless they were done by authority of the bank, or were ratified by it.

Punitive damages can only be awarded against one who has participated in an offense. A principal is liable only for injuries

(161 N.E.)

but cannot be held liable for exemplary or punitive damages by reason of wanton, oppressive, or malicious conduct or intent on the part of the agent. An employer cannot be punished for the personal guilt of his servant or agent, unless the employer authorized, ratified, or participated in the wrongdoing. Tracy v. Athens & Pomeroy Coal & Land Co., 115 Ohio St. 298, 152 N. E. 641. The record is that certain of the directors of the bank, at an informal meeting on December 18th, discussed with Seal the unsatisfactory condition of his account, the condition precedent to its giving credit on any drafts.

Dater's action in his private business, and as president of the Stockyards Exchange, cannot be charged to the bank, unless, as pointed out, the bank either authorized, ratified, or participated in the wrongdoing. In the absence of evidence tending to connect the bank with these matters, it was prejudicial error for the court to admit the evidence and charge the jury as it did in these matters.

For the reasons stated, the judgment of the trial court will be reversed, and the cause remanded for proceedings according to law. Judgment reversed, and cause remanded.

HAMILTON, P. J. (concurring). I concur in the judgment of reversal, for the reason that the court erred in its general charge on the question of damages growing out of the issues made by the pleadings and the evidence.

The original petition in the case made a tort action. The amended petition, which the court permitted to be filed at the trial, and which was objected to, added matter sounding in contract. The defendant, plaintiff in error here, objected to the amendment, for the reason, as it claimed, that the amendment changed the cause of action from one in tort to one in contract.

The amended petition contains allegations ex contractu and ex delicto. The amended petition therefore did not change the cause of action, but added an allegation sounding in contract.

The General Code provides (section 11306) that causes of action may be united in the same petition when they include, first, the same transaction; and second, transactions connected with the same subject of action. Therefore the amended petition was within the law of pleading authorized by the Code. Sturges v. Burton, 8 Ohio St. 215, 72 Am. Dec. 582.

The amended petition presents an action both ex contractu and ex delicto. The court, in its general charge, did not charge or explain to the jury that exemplary damages, growing out of malice, would not apply to damages resulting from a breach of contract. Punitive or exemplary damages are not recoverable in an action for breach of contract.

Ketcham v. Miller, 104 Ohio St. 372, 136 N.
E. 145.

Since the petition and the evidence present an issue of damages for breach of contract, as well as damages in tort, the court should have explained to the jury that, if they found that growing out of the transaction there was a breach of contract, no punitive damages could be awarded as to that phase of the case. Its failure to so charge was prejudicial error. The large verdict rendered in the case would indicate that the question of punitive damages entered largely into the case, and its prejudicial character is apparent.

The evidence of private dealings between Seal and Dater, and the feeling that existed between them, was only admissible under proper limitations, and not generally admissible.

(27 Ohio App. 272) GREGER v. STATE.

Court of Appeals of Ohio. Clermont County.
April 15, 1927.

1. Homicide 250-Reasonable doubt of de-
fendant's guilt of manslaughter held manifest
under evidence.

In prosecution for murder in the first degree where defendant claimed to have killed in defense of his father, reasonable doubt of his guilt of manslaughter held manifest under evidence. 2. Criminal law 801-Court was not bound to give requested charges before argument.

In murder prosecution court was not required to give defendant's requested charges before argument.

3. Criminal law 829(1)—Refusal of defendant's special charges was not error, where court charged law applicable to case.

In murder prosecution, refusal of defendant's requested special charges was not error, where general charge contained law applicable to case.

4. Homicide 195-Evidence of time defendant's father was treated for injuries was competent to corroborate defendant's testimony as to viciousness of attack on him.

Where, in murder prosecution, defendant claimed that he killed deceased in defense of his father whom deceased was attacking, evidence as to length of time the father was under medical treatment for injuries and time he was confined to his bed was competent to corroborate defendant as to viciousness of attack on his father.

5. Criminal law 463-Question to witness to state what kind of implement caused injury called for opinion, and answer thereto was properly excluded.

In murder prosecution where defendant claimed to have killed his victim in defense of his father whom victim was attacking, question to witness, from impression witness found on back to state what kind of implement it was

For cther cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

caused by, called for witness' opinion, and answer thereto was properly excluded.

Robert Greger was convicted of manslaughter, and he brings error. Reversed and remanded for new trial.-[By Editorial Staff.] Davis & Ely and Nichols, Speidel & Nichols, all of Batavia, for plaintiff in error.

Carl Z. Garland, of Milford, and Harry Britton, of Williamsburg, for the State.

PER CURIAM. Robert Greger, the plaintiff in error here, was indicted at the April term of the court of common pleas of Clarmont county, Ohio, for the crime of murder in the first degree. He was tried to a jury, and convicted of manslaughter. Motion for a new trial was overruled, and Greger was sentenced to the penitentiary.

Four specifications of error are presented: 1. That the verdict of the jury is manifestly against the weight of the evidence, and contrary to law.

2. That the court erred in refusing to give special charges Nos. 8, 10, and 15, requested by defendant below.

3. Error in the general charge.

saying anything about where he was going. He went down to the creek and saw the decedent and his son. The father of defendant says that Fred. Wood, the prosecuting witness, was tearing stone from the bank of the creek, and that the decedent Ed. Wood, was doing something with an ax. The prosecuting witness says he was fixing the road. In any event, the elder Greger went down and across the creek to where the prosecuting witness and his father were. An altercation arose. The prosecuting witness claims that the elder Greger struck his father. The elder Greger contends that the first blow was struck by the prosecuting witness, with a stalk or corn knife.

Shortly after the elder Greger left the tobacco barn, the defendant, his son, came out, and, not seeing his father, went back and closed the barn door. He spoke to a lady in a passing vehicle, and, hearing a noise, stated to the lady that he guessed there was trouble. He went down to the creek, in which the water was somewhat deep. He states that while going down he saw the prosecuting witness, the younger Wood, waving the corn knife around his father's head, and then saw

4. Error in the rejection of evidence, of him strike his father over the head with the fered on behalf of the defendant below.

[1] The indictment and conviction were for the killing of Ed. Wood. The assignments of error will be considered in the order in which they appear above.

Wood, the deceased, was a man about 52 years of age, weighing about 160 pounds. His son, Fred. Wood, the prosecuting witness, was a young man 27 years of age, and weighed about 147 pounds. Both were in good health and active.

The defendant, Robert Greger, was a man about 44 years of age, and prior to the events here narrated had been in poor health. He resided all his life with his father and mother on a farm, adjoining the farm of Ed. Wood, the decedent. Henry Greger, the father of the defendant, Robert Greger, in whose defense the defendant killed Ed. Wood, was a small man past 70 years of age.

It appears that there was bad feeling between the two families, growing out of the question of the trespassing of stock, and perhaps from some other disagreements. It appears that a practically abandoned public road ran along and near the division line, along a creek, and at the place in question, was all located on the Greger land. The defendant, Robert Greger, had purchased a revolver through a mail order house, and frequently carried the revolver when on his farm.

On the day of the killing, the defendant Greger and his father had gone to their tobacco barn, near the place described, to strip tobacco. The father, hearing a noise down along the creek, on this abandoned public

corn knife, felling him to the ground; that his father got up and was again stricken to the ground with the corn knife, and upon arising was stricken down a third time; that he got in the creek going toward the scene of the conflict, and saw his father on the ground, and, as he testifies, saw the decedent, Ed. Wood, the father of the prosecuting witness, striking his father with an ax, and he thereupon began shooting at the Woods; that thereupon the prosecuting witness, the younger Wood, climbed in the wagon and started to drive away, the deceased, Ed. Wood, walking along behind the wagon. Wood went some distance around a curve and fell dead, having been shot through the chest.

The defendant, Robert Greger, helped his father up, carried him across the creek, assisted him up the road, and stopped at a neighbor's house where he telephoned for a doctor. The father was then assisted to his house, and put to bed. The doctor arrived and treated the elder Greger, found that the corn knife had cut through a heavy straw hat, and had cut through the scalp; that the bridge of his nose was badly cut; that he had a cut on his elbow and on his finger; and that there was a wound on his back, caused by a blow with some blunt instrument, which had broken the rib over the kidney loose from the back bone.

The prosecuting witness, Fred. Wood, claims that the elder Greger struck his father first, as above stated, thus beginning the affray; that he thereupon did strike the elder Greger with the corn knife three times, knocking him down; that the elder Greger

(161 N.E.)

the ground. He claims that the elder Greger was on top of him, and that the decedent must have struck the elder Greger with something on the back, because Greger thereupon released him. But he does not know with what the decedent struck Greger.

From the record there is no question that the defendant knew nothing as to how the affray started, or who was the aggressor. The first thing he saw was the waving of the corn knife around the head of his father, and saw his father stricken down with it. And he says that while his father was on the ground, the decedent struck his father with the ax. He was not near enough at hand to render assistance.

It would seem from these facts that the defendant might fairly and reasonably suppose that his father was not only in danger of great bodily harm, but in danger of his life. He had no part in the beginning of the affray, and there is no evidence whatever that he had any knowledge of the circumstances prior to the time that he saw the younger Wood striking his father with the corn knife. These are the salient facts, and we are of opinion that there was reasonable doubt of the guilt of the defendant. It manifestly appears so from the evidence.

The jury may have been influenced in its verdict by evidence admitted to the effect that the defendant, Robert Greger, had previously made threats against the Woods, and carried a revolver, and by the further fact that Greger expressed no regret after the killing except to say with an oath that he was sorry it had not been the younger Wood instead of the old man. But the threats preceding the affray, and statements subsequent thereto, cannot change the facts occurring at the time. If we consider alone the admissions of the prosecuting witness that he struck the elder Greger down three times with the corn knife, and that his father struck him on the back with something, which all took place in the view of the defendant, the son, we still think there was reasonable doubt of the guilt of the defend

ant.

[2] With reference to the second specification of error, the refusal of the court to give special charges Nos. 8, 10, and 15, it is sufficient to say that the court was not bound to give the charges before argument; that if the general charge contained the law there could be no error predicated on the refusal to give these special charges.

[3] We have examined with care the general charge of the court. It is the law that par

ent and child, husband and wife, master and servant, will be excused should they even kill an assailant in the necessary defense of each other. Under the rule, the trial court clearly and carefully gave to the jury the law applicable to the case.

We find no error in the refusal to give the special charges; nor do we find error in the general charge.

[4] The specification of error with reference to the rejection of evidence concerned evidence as to the length of time the elder Greger was under treatment for his injuries, and the length of time he was confined to his bed. This evidence was competent as tending to corroborate the defendant as to the viciousness of the attack made upon his father by the prosecuting witness and the decedent, and would bear upon the question as to whether or not the defendant was justified in resorting to the shooting in defense of his father.

[5] The other evidence rejected was an answer to the following question:

"Q. From the impression you found on the back, that you have described, I'll ask you to state what kind of an implement, in your opinion, it was caused by."

The answer to this question was properly excluded, for the reason that it calls simply for an opinion. The doctor could, as he did, describe the impressions and the injuries found upon the back, their character and their shape. It was then for the jury to determine the kind of an instrument used, causing the injury. Or, in other words, the jury might infer from the description of the injury, and the impression found on the back, that it was caused by an ax, which would corroborate the defendant's claim that the decedent struck the elder Greger on the back with an ax. This evidence was properly rejected.

For the reason that the immediate circumstances surrounding the affray, whether viewed from the evidence of the state, or from the evidence of the defendant, in the opinion of this court raise a reasonable doubt as to the guilt of the defendant, the judgment of conviction will be set aside and held for naught, and the cause will be remanded to the court of common pleas of Clermont county, Ohio, for a new trial, and for further proceedings according to law.

Judgment reversed, and cause remanded.

HAMILTON, P. J., and CUSHING and BUCHWALTER, JJ., concur.

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