Superior Court of Cincinnati.

in the unlawful business of maintaining a pool room, sold his equipment and leased his premises to the defendant. The court of appeals says:

"We are all of opinion that there is no evidence from which the jury could find that the premises were rented to defendant for the purpose of using it as a pool room.

"Plaintiff did know that the premises had been and were used for that purpose. But there was no evidence that defendant was obliged to use it for that purpose. He could have used it for any other lawful purpose."

In the case at bar, the language of the defense shows that the covenants of the lease contain the usual stipulation against unlawful use; and even if a secret understanding to the contrary existed and could have been enforced between the parties, it is not charged that the plaintiff, the purchaser of the leased premises, had any knowledge of that fact when he acquired the property. Without such knowledge on his part the defense could not be maintained.

Demurrer sustained.

LIBEL AND SLANDER.

[Superior Court of Cincinnati, Special Term, July 1, 1905.]

JOHN G. HUDSON V. COMMERCIAL TRIBUNE Co.

LIBEL-PUNITIVE DAMAGES WHERE MALICE NOT SHOWN.

Where in an action for libel against a newspaper it is shown that the publication was made as alleged and that it was annoying and offensive and in some degree injurious to the plaintiff in his professional reputation, but that the newspaper gave both parties a fair hearing before the public and had reasonable grounds for believing the charge to be true, it cannot be said that the defendant acted wantonly or was actuated by malice and it is error to charge that punitive damages might be assessed.

MOTION for new trial.

L. C. Black and Prescott Smith, for plaintiff.

Province Pogue, for defendant.

HOFFHEIMER, J.

This was an action for libel. The petition sets forth a copy of the alleged libel. The plaintiff was an attorney at law practicing his profession at the place of publication, and he claimed the libel was maliciously made with intent to injure him in his good name, professional business and standing.

The answer of the defendant did not justify, but merely went to the good faith of the defendant in making said publication; in other words, it pleaded matters in mitigation only.

Hudson v. Tribune Co.

The article published was a lengthy one and charged that plaintiff and another attorney had instituted a suit for Mrs. Drott without authority and that she would file a motion asking that same be dismissed on that ground. The article further stated that disbarment was staring the plaintiff and the other attorney in the face if the charge should be sustained. The article had headlines "Declares She Did Not Sign Papers;" "Mrs. Drott Wants the Suit Filed in Her Name Dismissed by the Court;" "It May Cause Disbarment."

As the publication and its falsity was admitted, the court in its charge to the jury had nothing else to do but to instruct a verdict for plaintiff, and the jury was told that as plaintiff was a professional man and the libel was published in regard to his professional capacity he was entitled to compensatory damages, and compensatory damages were duly defined.

The jury was also instructed that if it should find the publications were maliciously made or made with wantonness or recklessness, it might if it saw fit also return punitive damages.

The verdict was for $6,000. Unquestionably the jury took the view that the case was one meriting punitive damages, but I was at the trial in more or less doubt as to whether the evidence justified my charging on the question of punitive damages, and on reflection I am inclined to hold that there was no actual malice in the publication. Since the trial of this case I have been handed the opinion of Judge Thompson, of the United States district court, on the motion for a new trial in the case of Baker v. Commercial Tribune Company, which was a case growing out of this same libel and the jury awarded $2,500 as damages. In the course of his opinion, Judge Thompson said:

"The publication was annoying and offensive and may have in some degree injured the plaintiff's reputation, and he was therefore entitled to some compensation, but manifestly the greater part of the amount allowed was in punishment of what the jury must have regarded as the wantonness of the publication. Before the publication was made both parties were given full opportunity to explain the transaction, and it cannot be said that the defendant was actuated by malice or that it acted wantonly. It presented to the public a charge that the suit had been brought without authority and took the risk of the falsity of the charge and its liability to compensate plaintiff for any injury to his reputation because of its falsity, but it gave both parties a hearing before the public and had reasonable grounds for believing the charge to be true, and in that there was neither malice or wantonness."

The testimony adduced in the trial of that case necessarily must have been of the same character as that presented to this court, and I am inclined to hold the view taken by the court referred to, on the question of malice, as correct.

Superior Court of Cincinnati.

I hold therefore that if plaintiff will consent to a reduction of the amount allowed by the jury to the sum of $1,250, the verdict may stand in the sum of $1,250; otherwise the verdict will be set aside and a new trial granted.

PLEADINGS-TRIAL.

[Superior Court of Cincinnati, Special Term, June 7, 1905.]

BEN JOHNSON V. CINCINNATI GAS & ELEC. Co.

MOTION FOR JUDGMENT ON PLEADINGS, TOO LATE WHEN FILED AFTER JURY TRIAL ON ISSUES JOINED.

A motion for judgment on the pleadings on the ground that plaintiff failed to reply to the answer alleging contributory negligence, will be overruled when filed after trial to a jury as on issue joined upon the allegation of the answer and the evidence supporting it.

F. T. Cahill, for plaintiff.

G. H. Warrington, for defendant.

HOSEA, J.

The motion for judgment on the pleadings under Lan. R. L. 8844 (R. S. 5328) of the code is not well taken. The point is that plaintiff failed to reply to the answer of defendant setting up contributory negligence.

The spirit and purpose of the code provisions is to require and enable parties to dispose of all purely technical questions before reaching the jury on the facts. Prescribed forms of procedure are intended to reach substantial justice and are not to be converted into traps for the unwary. There was a proper time in the progress in the case when the omission of a reply should have been taken advantage of, but that time had long passed when the case had been tried to a jury as though the issue had been taken upon the allegation of the answer and upon the evidence in support of it.

The objection comes too late. Lovell v. Wentworth, 39 Ohio St. 614; Woodward v. Sloan, 27 Ohio St. 592; Hudson v. Voight, 9 Circ. Dec. 35 (15 R. 391).

In re Avon Beach & Southern Ry.

RAILROADS-STATUTES.

[Lorain Common Pleas, 1905.]

IN RE AVON BEACH & SOUTHERN RY.

1. STEAM RAILROADS DISTINGUISHED FROM ALL OTHERS-THE TERM "RAILROADS" MEANS STEAM RAILROADS.

In the statutes of Ohio, when the term "railroads" is used, steam railroads are meant, unless it clearly appears that some other meaning is intended. 2. CHARTER NOT CONCLUSIVE TO DETERMINE CHARACTER OF RAILROAD-WHAT IS EVIDENCE TO DETERMINE.

Whether or not a railroad is a steam railroad, within the meaning of the statutes of Ohio, may be determined, not only by the provisions of its charter, but evidence is admissible to show how it is constructed and operated and the character of the business it is engaged in, and the mode and manner of conducting such business; and if the road is not completed and in operation, evidence is admissible to show how it is to be constructed and operated and the character of the business it is to engage in, and the contemplated mode and manner of conducting such business.

3. GRADE CROSSING LAW APPLIES ONLY TO STEAM RAILROADS.

The law relating to the establishment of grade crossings, Lan. R. L. 5332 et seq. (97 O. L. 546), relates exclusively to steam railroads, and in the case of an application to the common pleas court under this act by a railroad for permission to lay its tracks at grade over street crossings, and to prescribe what gates, signals, etc., shall be maintained, if the court find from the testimony that such railroad is not a steam railroad, it is without jurisdiction in the premises.

4. COURT MAY GRANT PERMISSION TO Cross at GRADE CONDITIONAL ON AGREEMENT OR CONDEMNATION.

In the case of steam railroads, the court, under Lan. R. L. 5332 et seq. (97 O. L. 546), may grant permission to construct a grade crossing conditional upon the acquirement by the company, either by agreement with the municipal or other officers in charge of the road or street, or by condemnation, the right to do so. Such agreement or condemnation need not precede the permission granted by the court.

M. B. & H. H. Johnson, T. H. Hogsett, E. G. & H. C. Johnson and G. A. Resek, for applicant:

Macklin v. Telephone Co. 24 O. C. C. 446; Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. Rep. 781; 52 L. R. A. 150; 83 Am. St. Rep. 725]; Farmer v. Telephone Co. 72 Ohio St. 526.

W. L. Hughes, city solicitor, and Thompson, Glitsch & Cinninger, for the city of Lorain:

Appropriation of private property. Steubenville v. King, 23 Ohio St. 610; Scioto Valley Ry. v. Lawrence, 38 Ohio St. 41 [43 Am. Rep. 419]; Lan. R. L. 5240 (R. S. 3284); Youngstown v. Railway, 2 Circ. Dec. 121 (3 R. 214); State v. Railway, 37 O. S. 157; Cincinnati Northern Ry. v. Cincinnati, 8 Dec. Re. 554 (8 Bull. 334); Colby v. Toledo,

Lorain Common Pleas.

12 Circ. Dec. 347 (32 R. 732); Railway v. Defiance, 52 Ohio St. 262 [40 N. E. Rep. 89] Schaff v. Railway, 66 Ohio St. 215 [64 N. E. Rep. 145]; Lake Shore & M S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. Rep. 738].

WASHBURN, J,

This is an application on behalf of the Avon Beach & Southern Ry. Co., wherein it is sought to have this court grant said company permission to lay its tracks across certain streets in the city of Lorain, at grade, and to prescribe what gates, signals and other safeguards shall be maintained by said company at said crossings in addition to the signals and safeguards prescribed by statute.

This application is filed under the provisions of a law passed in April, 1904, and found in 97 O. L. 546 (Lan. R. L. 5332, et seq.), and which will be referred to hereafter in this opinion as a new law.

For convenience sake I shall designate the said company as plaintiff, and the municipal corporation of the city of Lorain as defendant.

Before plaintiff filed its petition, proper notice under said new law was given to the defendant, and the defendant has filed an answer and entered its appearance and participated in the trial of the case, without any future notice than that served upon it previous to the filing of the petition.

Before the hearing, and at the request of both parties, I viewed the premises in question. A part of the proposed line has been constructed, that is, that part from Grove avenue in the city of Lorain, where the plaintiff's line connects with the Lorain Street Railway Company, and thence east across all of the streets in question, except Thirteenth avenue. The line as far as it has been constructed is at grade with said streets, and except where it crosses said streets is upon a private right of way, and so far as the rails have been laid, poles have been erected and trolley wires strung, and it was the intention of the plaintiff to build on across Thirteenth avenue, crossing the same at its junction with the Globeville road, which is on the west bank of Black river.

It is conceded 'that the plaintiff received no grant, license or permission from the defendant, to lay its tracks across the streets as they are now laid, and after the rails were laid as far as they are now laid the defendant, through its mayor, stopped further construction of the road, and by agreement of the parties, nothing further has been done. After the work was stopped, the plaintiff company made application to the defendant for permission to lay its tracks across said streets, and the defendant on the advice of its city solicitor, declined to grant such permission, on the theory that it had no authority to grant such right to the plaintiff; it being claimed that the authority to grant such right was vested in the court, by virtue of said new law.