Hamilton Common Pleas. EVIDENCE-HABEAS CORPUS-WITNESSES. [Hamilton Common Pleas, October 24, 1905.] CORA DOW GOODE, IN RE. 1. WITNENSS NEED NOT ANSWER IRRELEVANT OR PRIVILEGED QUESTION BEFORE NOTARY. At the hearing of a writ of habeas corpus, testimony may be introduced by the petitioner showing that the question asked by the notary was either irrelevant or privileged, the latter under the Ohio rule not being competent to pass thereon 2. WITNESS NEED NOT ANSWER QUESTION OPERATING TO CONFER UNFAIR BUSINESS ADVANTAGE ON ADVERSE PARTY. If it appear that the answer to a question propounded to a witness would injure the plaintiff by affording the defendants an opportunity to commit certain acts forbidden by the Valentine Antitrust Law, technical rules of evidence will be disregarded and the witness not required to answer. APPLICATION for writ of habeas corpus. J. S. Graydon and Smith Hickenlooper, for petitioner: Testimony in habeas corpus proceedings. Church, Habeas Corpus (2 ed.) Secs. 170, 178 et seq.; Hurd, Habeas Corpus (2 ed.) 301, 302. Relevancy. Jennings, Ex parte, 60 Ohio St. 319 [54 N. E. Rep. 262; 71 Am. St. Rep. 720]; Robbins v. Railway, 180 Mass. 51 [61 N. E. Rep. 265]; Storm v. United States, 94 U. S. 76 [24 L. Ed. 42]; Gorham Mfg. Co. v. Dry-Goods Co. 92 Fed. Rep. 774. Privileged trade secrets. 3 Wigmore, Evidence 2212; Krieger, Ex parte, 7 Mo. App. 367; Jennings, Ex parte, 60 Ohio St. 319 [54 N. E. Rep. 262; 71 Am. St. Rep. 720]; Jenkins v. Putman, 106 N. Y. 272 [12 N. E. Rep. 613]; Gorham Mfg. Co. v Dry-Goods Co. 92 Fed. Rep. 774; Badische Ainlin & Soda Fabrik v. Levinstein, L. R. 24 Ch. Div. 156; Moore v. Craven, L. R. 7 Ch. App. 94; Saccharin Corporation v. Chemicals & Drugs Co. 2 Ch. Div. 557; Tetlow v. Savournin, 15 Phila. 170; Moxie Nerve-Food Co. v. Beach, 35 Fed. Rep. 465; Dobson v. Graham, 49 Fed. Rep. 17. F. H. Freericks and R. B. Smith, contra: Legality of the commitment. Church, Habeas Corpus Sec. 169; Miller, In re, 11 Dec. 69 (8 N. P. 142); Jennings, Ex parte, 60 Ohio St. 319 [54 N. E. Rep. 262; 71 Am. St. Rep. 720]. Relevancy and privilege. Jennings, Ex parte, 60 Ohio St. 319 [54 N. E. Rep. 262; 71 Am. St. Rep. 720]; Wigmore, Evidence Secs. 2210, 2212; Commonwealth v. Pratt, 126 Mass. 462; People v. Freshour, 55 Cal. 375; Coburn v. Odell, 30 N. H. 540; State v. Fay, 43 Iowa 651; State v. Nichols, 29 Minn. 357 [13 N. W. Rep. 153]; Samuel v. People, 164 Ill. 379 [45 N. E. Rep. 728]; Pollock v. Pollock, 1 Circ. Dec. 410 (2 R. 143); Chambers v. Frazier, 29 Ohio St. 362; Bush v. Critchfield, 5 Ohio Goode, In re. 109; Eddy, Combinations Sec. 1010, par. 2; Buss v. Horrocks, 1 Dec. Re. 376 (8 Jo. 419); Meader v. Root, 5 Circ. Dec. 61 (11 R. 81); Conner v. Mackey, 20 Tex. 747; Blackburn v. Morton, 18 Ark. 384; Glenn v. Brush, 3 Colo. 26; Packard v. Hill, 7 Cow. 489; Odivene v. Hills, 1 Wend. 18; Rauh, In re, 65 Ohio St. 128 [61 N. E. Rep. 701]. SPIEGEL, J. This is an application for a writ of habeas corpus for Mrs. Cora Dow Goode, retail druggist of this city, for restoration to liberty, she having been theoretically committed to jail by a notary for refusal to answer a question, the nature of which will be found further on. Before determining the merit of the question involved, it will be necessary to consider the question raised at the hearing of the writ, whether testimony can be introduced during such hearing. Counsel for respondent claims this cannot be done in the present case, there being only a question of law for determination. The record shows that, before the notary, the petitioner was asked of whom she bought certain goods, which she refused to answer, claiming her privilege upon the ground that the question was irrelevant and in the nature of a trade secret. The notary, thereupon, committed her to jail for refusal to answer. Upon the hearing before me, I permitted the petitioner to testify and introduce testimony. Whether the question asked contained a trade secret, was a matter of fact, which required elucidation. In that course I was justified both by general practice and the law of Ohio (see Church, Habeas Corpus Secs. 178 and 192, and Hurd, Habeas Corpus 302). In Ohio the law is stated by me in Miller, Ex parte, 11 Dec. 69 (8 N. P. 142), syllabus 2: "A notary has no power to determine whether a question which a witness has refused to answer is relevant or competent. His only recourse is to commit the witness to jail, leaving to a court of competent jurisdiction the determination of the question of relevancy upon application for release by habeas corpus." This being the rule, the court, in furtherance of justice, was compelled to hear testimony, the question being, not whether the notary was right in his ruling, but whether the prisoner was entitled to her liberty. This brings me to the consideration of the question, whether the petitioner was right in her refusal to answer the question. The petition in this case is filed under the antitrust law of Ohio (Lan. R. L. 7586; B. 4427-1, et seq.), prohibiting the creation or carrying out of restrictions in trade or commerce; to prevent competition in the sale or purchase of merchandise; to fix at any standard or figure any article of merchandise intended for sale in this state, whereby its price to the public or consumer shall be in any manner controlled or established; to make or carry out any agreement of any kind or description by which they Hamilton Common Pleas. shall bind themselves not to sell any article of merchandise, etc., below a common standard figure, or by which they shall in any manner establish the price of any article between themselves and others, so as directly or indirectly to preclude a free and unrestricted competition among themselves, or any purchasers or consumers in the sale or transportation of any such article. The petitioner alleges in her petition that, by reason of her refusal to join said unlawful combination (meaning the Ohio Valley Druggists' Association) or to maintain the prices fixed by the defendants (meaning the National Association of Wholesale Druggists, the Peruna Drug Manufacturing Company and the other defendants named), they have refused to sell commodities to her, and have induced others to refuse to sell to her, under threats of being cut off from supplies if they sell to her. In the hearing of the writ of habeas corpus she introduced testimony that dealers who had sold her were placed under the ban of these different combinations, who refused to sell to them unless they ceased selling to the petitioner. She further testified that if she revealed the names of those dealers who had supplied her with goods they would be placed on the black list, and her source of supply would entirely cease. She, therefore, claims the right to refuse to answer this question as being both irrelevant and in the nature of a trade secret. Petitioner files her suit under Sec. 11 of the antitrust, better known as the Valentine law, which provides that in addition to the criminal and civil penalties herein provided, any person who shall be injured in his business by any other person or corporation or association or partnership, by reason of anything forbidden or declared to be unlawful by this act, may sue therefor and recover twofold the damages sustained and the costs of the suit. She claims to have sustained damages, and the names of the parties from whom she bought goods, possibly at higher prices, may well become relevant, giving defendants the right to examination. But there is a wider inquiry involved. Would not an order compelling petitioner to answer this question destroy the very object which the antitrust law seeks to accomplish? She alleges in her petition, and submitted evidence in her examination, that a disclosure of these dealers would place them on the black list and deprive her of the opportunity of obtaining any of these goods. It is the duty of the courts where the state has made criminal certain rules of action in economic matters, to see that the purpose of these laws is carried out, and not nullify their very purpose by the enforcement of a technical rule of evidence. Whether the allegations of the petitioner are based on facts is a matter for the investigation of the trial court; but prior to that time, the court certainly ought not compel her to disclose matters which, while hardly trade secrets, would neverthe Goode, In re. less tend to injure her in her business and give the defendants the very opportunity to commit the acts which the state has made criminal. In saying this, I am not passing on the merits of the case, but I am using that wide discretion, which must always be vested in courts, to see that full and complete justice shall be done. The writ is granted, and the petitioner ordered released. MASTER AND SERVANT. [Superior Court of Cincinnati, November 20, 1905.] ADA GODDARD V. H. W. MCGREW ET AL. 1 SERVANT WILL ORDINARILY BE HELD TO HAVE ELECTED TO ASSUME RISK FROM DEFECTIVE MACHINE IF SHE CONTINUES TO OPERATE IT WITHOUT NOTICE TO MASTER OR PROMISE OF REPAIR. In the absence of allegations of inexperience or immaturity, a servant, seventeen years and eleven months old, will be held to have assumed the risk arising from the defective operation of a certain machine, where the evidence shows that she was cautioned as to the dangers arising in connection therewith, and that she continued to operate such machine after discovering the defect, without notice to the master or promise by him that it would be repaired. 2. MASTER IS NOT BOUND TO FURNISH GUARD FOR MACHINE ADEQUATE TO PROTECT SERVANT AGAINST DEFECT DISCOVERED BY HIM BUT NOT REPORTED. A master's duty toward a servant is discharged if he furnishes a guard for dangerous machinery which is sufficient to protect the servant in the exercise of ordinary care, against the known and usual dangers ordinarily incident to the proper operation of the machine; and ho is not required to furnish a guard sufficient to protect the servant against injury from a defect discovered by him, or against the unusual and extraordinary operation caused by such a defect, where the servant, after the discovery of the same, elected to continue at work without notice to the master. [Syllabus approved by the court.] MOTION for new trial. Theodore Horstman, for plaintiff. W. J. Davidson and Otis Fisk, for defendants. HOFFHEIMER, J. The action was for negligence. Briefly, it was claimed that the machine at which the plaintiff was engaged to work was defective: First. Because instead of operating uniformly, it jerked, and that plaintiff had no knowledge of said defect. Secondly. That a sufficient guard had not been provided. At the conclusion of plaintiff's testimony, there was a motion by defendants for a directed verdict, which, upon consideration, the court granted. The matter is now heard on motion for a new trial. The evidence disclosed that the plaintiff, an intelligent girl, lacking Superior Court of Cincinnati. one month of being eighteen years of age, had worked at the mangle two weeks before she was hurt. The machine had been equipped with a guard, and it also appeared that the machine "jerked" as set out in the petition. It also appeared that plaintiff discovered and knew of the existence of this defect before the injury occurred, and nevertheless, remained at the work without communicating her discovery to the master, and without any promise on his part to repair. When plaintiff was put upon the work, the evidence further shows that she was fully. instructed as to the manner in which she must work. The instruction was given by Mollie English and also by Mrs. Errit, and she was "told to be careful;" in other words, she was cautioned. She also testified that she was experienced in the work and knew how to operate the mangle. Counsel for plaintiff now contend that even though plaintiff knew of the defect before the injury occurred (her petition alleges she did not know of its existence), she did not know it was dangerous. I do not think that this is tenable; a mangle is a highly dangerous machine, and the risks are obvious and glaring. Immaturity and inexperience were not pleaded, and although the evidence shows that plaintiff was but seventeen years and eleven months old, that is no reason why she should not be held to assume obvious risks, and this is especially true where it affirmatively appears she had been instructed and cautioned. In Groth v. Thomann, 110 Wis. 488 [86 N. W. Rep. 178]; it was held that duty to instruct does not exist as to dangers which are so obvious that the servant must be held, as a matter of law, to be as familiar with as the master. This case was a "mangle" case. The plaintiff was a girl fifteen and a half years old. The case had been submitted to a jury and afterwards reversed, and judgment ordered for the defendants, although the jury found that there had been no warning and that the plaintiff was in the exercise of ordinary care; but the record also disclosed that the mangle jerked before the injury, and that she knew of it. O'Hare v. Keeler, 22 App. Div. 191 [48 N. Y. Supp. 376], was also "mangle case." The opinion was by Parker, P. J. The plaintiff was a girl seventeen years old, and the injury, as in the instant case, a lamentable one, the girl's hand being severely crippled. The court said at page 193: "The real question presented by this appeal, is whether the defect was one of negligence in not sufficiently warning the plaintiff of the dangerous features of the machine and instructing her as to its use at the time she was set to work upon it. The clothes to be ironed were spread out upon a shelf or table which extended under this rod, and as they were slipped along the table, and under the rod, they were caught |