(143 N.E.) De and by permitting said machine to be in such condition as to start in motion and send said arm with said die thereon quickly downward, and to repeat such movement without starting said machine by using said foot treadle. fendant had knowledge of the said condition of said machine at the time, or if he did not have such knowledge he should have known of such conditions by employing ordinary care and using reasonable prudence." The amended petition contains the further allegation: "Defendant at the time violated the said laws and lawful requirements thereof by negligently and carelessly failing and omitting to warn said plaintiff of the dangers lurking in and about said machine when operated by him, and in not cautioning plaintiff in its operation." It further alleges that "At the time said foreman of said factory and of said defendant so ordered and directed him to work at and about said machine and to use and operate the same, the said plaintiff was inexperienced in the use and operation of said machine, its mechanism and construction, and had used and operated the same for only about one week prior to the time said plaintiff received said injuries, which want of experience on the part of plaintiff was well known to said foreman of said factory and said defendant." ing said machine and prior to said injury, what was such order?" To the interrogatories plaintiff replied that he had no knowledge of any such orders having been issued. After the reply was filed, defendant moved for judgment in his favor"on the pleadings and the interrogatories at-tached to defendant's answer, and the answers to said interrogatories by the plaintiff, for the reason that said pleadings, interrogatories, and answers show that the plaintiff is not entitled to the relief prayed for his petition and is not entitled to any relief whatsoever." This motion was sustained, and the plaintiff did not thereafter further amend the petition, nor the reply, and final judgment was entered against the plaintiff. Error was thereupon prosecuted to the Court of Appeals, which court reversed the court of common pleas and stated in its entry that the court erred in sustaining the motion for judgment, "for the reason that said interrogatories are too narrow to preclude proof of a general order made by the Industrial Commission addressed to employers generally, and which would apply to the defendant, Henry S. Winzeler, and to the character of machine upon which the plaintiff was employed," and remanded the cause to the court of common pleas for further proceedings. A. L. Gebhard, of Bryan, for plaintiff in error. Charles E. Scott, of Bryan, for defendant In many places in the amended petition the pleader charges the defendant with negligence and want of ordinary care. It makes the general allegation that the defendant "negligently and carelessly failed, neglected, and omitted to comply with the lawful re-in error. quirements of the law for the protection of the lives and safety of the employés of said defendant, and especially of this plaintiff, as required and set forth in sections 15 and 16 of an act of the General Assembly of the state of Ohio, creating the Industrial Commission of Ohio" (Gen. Code, §§ 871-15. 871-16), and also alleges defendant's further negligence and failure to comply with sections 25 and 29 of that act (Gen. Code, §§ 871-25, 871-29), and failure to comply with the orders of the Industrial Commission. MARSHALL, C. J. It will be observed that the amended petition alleged the existence of certain statutes and a general allegation of the failure to comply with them, and further alleged the existence of an Industrial Commission and the failure of defendant to comply with certain unnamed orders of such Commission, but the amended petition failed to point out any particular omissions of duty, and failed to specify any devices, safeguards, methods, or processes designed It is not necessary to notice the allegations to safeguard the operator of such a maof the answer, because the cause was sub-chine against injury, and failed to allege mitted upon a motion by defendant for judgment on the pleadings, which raises the legal issue whether the well-pleaded allegations of the petition state a cause of action. It is, however, proper to notice the interrogatories, three in number, attached to the answer, as follows: that there were any such safeguards, safety devices, methods, or processes known to persons owning and operating such dangerous machines, or that any guard or mechanism could have been attached to the machine in question to prevent injuries to the operator without materially impairing the efficiency of the machine. It is the duty of a pleader to avoid mere legal conclusions and to avoid mere reference to statutes creating a duty or obligation, and it is well settled that the pleader should state only the operative facts which bring the defendant within the rule of duty created by the statute or orders of the Industrial Commission. This rule applies with strictness to this plaintiff, because at 26 tention was particularly directed thereto by law duties of ordinary care, rather than the a lawful requirement. the allegations of the answer setting forth failure to observe that the machine was guarded as much as it This clearly appears in the italicized portions was possible to guard the same without in- of the quotations from the amended petition, terfering with its practical operation, and, contained in the foregoing statement. The after attention was called to that defect in common-law duty to warn an employé of the pleading, no attempt was made to supply the dangers of the employment has never been omission by a further amendment of the pe- made the subject-matter of a lawful retition, nor by definite specifications in the quirement. It could not reasonably be made so in the case of a punch press fed by hand, reply. The amended petition contains no reference whatever to section 1027, General because the dangers are so obvious that any Code, nor to subdivision 7 thereof, which person of ordinary intelligence should appreseem much more pertinent to his case than ciate the dangers without such warning. It those sections of the Industrial Act which cannot be said to be the violation of any were pleaded by reference. But plaintiff lawful requirement to permit a dangerous would clearly be entitled to the provisions machine "to become out of order and repair." of section 1027, General Code, without hav- Any machine, dangerous or otherwise, will ing pleaded the same, if the amended peti- necessarily become out of repair by use, and tion contained allegations of operative facts this cannot reasonably be charged to the emwhich were not mere legal conclusions that ployer, because it can never be known in adwould bring the case fairly within the op-vance when a machine will become out of oreration of subdivision 7 of section 1027. The der and repair. The person who always has amended petition is, however, as deficient on first knowledge of a machine being out of orthat point as it is in attempting to bring the der and repair is the operator, and manifestcase within sections 15, 16, 25, and 29 of the ly in any shop containing more than one maIndustrial Commission Act. chine the owner and employer cannot be A lawful requirement has received a defi-present at all machines at the same time in nition in the case of Ohio Automatic Sprink-order to be the first to know of the need of ler Co. v. Fender, 108 Ohio St. 149, 141 N. E. repairs. By the provisions of section 13 of 269, but that definition does not purport to the Industrial Commission Act, it is only be exclusive, and is merely made inclusive of necessary for the employer to provide such certain features therein discussed and decid-freedom from danger "as the nature of the ed. That term probably never will have its employment will reasonably permit," and it limitations definitely and exclusively defined, would manifestly be unreasonable, in addibeing in that respect like fraud, nuisance, and tion to the payment of premiums to the commany other legal terms. We do not hesitate pensation fund, to hold him responsible for to say that the stamping machine referred to damages resulting from the employé continuin the amended petition is a dangerous one, ing to use a machine which is out of repair. and that if there were known guards and devices designed to prevent injuries to the operator, which devices did not interfere with the efficient operation of the machine, and the employer had failed to install the same, resulting in injuries, there would be a liability. In the Fender Case, after referring to the duty to create such freedom from danger to the life, health, safety, or welfare of employés as the nature of the employment would reasonably permit, it was further stated, by way of application of that general statement, at page 171 of 108 Ohio St. (141 N. E. 276), that [1] Subdivision 7 of section 1027, General Code, provides: "They shall guard all saws, wood-cutting, wood-shaping, and all other dangerous machinery." The requirement of guarding dangerous machinery cannot be construed as a requirement to prevent a machine from becoming out of order and repair. It is inevitable that all machines require repairs from time to time, but not at any stated times, and it is not often that any warning is given prior to the actual condition of being out of order and repair. It is one thing to require the employer to keep informed of devices and safeguards which may be employed to prevent injuries without materially impairing the efficiency of machinery; but it is another and a very different thing to require the employer to be everywhere present, and to know immediately of the need of repairs on each and every item of machinery in a manufacturing plant, and to prevent each and every employé from conThe weakness of the present petition con- tinuing the use of such machines until such sists not alone in containing mere legal con- repairs are made, when common sense teachclusions. The situation is much worse for es that the employé and operator has better plaintiff by reason of it appearing through- opportunity for knowing such condition, out the petition that plaintiff's real com- and equal opportunity to know and appreciplaint is a failure to perform the common- ate the necessity for such repairs. The Leg "It is incumbent upon the plaintiff to show that some guard could have been attached to this punch press which would have prevented repeating without materially impairing the efficiency of the machine. If no guard had been discovered nor invented at the time of the injury, this employer couuld not be held responsible for the omission." (143 N.E.) islature has not yet stated that the lack of liberally construed in favor of the pleader repairs is the failure to observe a lawful re- in order that a cause of action be stated, quirement. rather than defeated, it may be answered as to the first of these propositions that all the allegations of a pleading should be construed together in determining the effect of any of them, and that it has been so held by this court in Reiff v. Mullholland, 65 Ohio St. 178, 62 N. E. 124. As to the second proposition, it should be answered that liberal construction of a .pleading applies to the words, phrases, and clauses in pleadings which are ambiguous, or of doubtful meaning, for the purpose of giving them force in stating a cause of action or defense, and for the purpose of aiding the introduction of evidence. But, on the other hand, the rule of liberal construction does not apply to statements in It is the spirit of the decision in the Fender Case that statutory lawful requirements need not be stated definitely and in detail. This is not upon the theory that the employer is not entitled to be advised as to his duty, but rather in full recognition of his right to be so advised, and upon the theory that he already knows better than the Legislature the things that may reasonably be done for the safety of employés. All statutory requirements stated in general terms are subject to the qualification that they must be such "as the nature of the employment will reasonably permit"; in other words, that any requirement stated in general terms will be regarded as definite if the knowledge of de-a petition which adversely characterize the tails necessary to make it definite and certain may fairly be imputed to the employer, but no one would contend that that principle could be extended to the matter of a machine becoming out of order and repair, since that condition can only be known at the time of the occurrence, or afterwards. action, or which amount to admissions which would defeat a recovery, or allege the existence or nonexistence of a material fact which would defeat a recovery; that as to such matters a petition should be construed most strongly against the pleader and should weigh adversely to the pleader in the same manner as if such matter were contained in evidence introduced in the case. Reading the petition in this case in its entirety, and construing it from its four corners, this action is clearly characterized as one of ordinary negligence, and based upon claims of want of due care. Attention should be given to that allegation of the amended petition relating to the inexperience of this plaintiff in the use and operation of the machine, and to the employer's knowledge of such inexperience. This again clearly relates to common-law duties and liabilities, and the Legislature has never declared inexperience of the operator and the employer's knowledge of such fact to be in the nature of a lawful requirement imposed upon the employer. It is the duty of the court to declare the law as it exists, without regard to social and economic considerations which might reflect upon the wisdom of legislation, and the court has no latitude beyond the power to interpret statutory language which is obscure and ambiguous. It was suggested in the Fender Case that if it is desired to safeguard the employer against liability at the suit of employés, notwithstanding full compliance with the provisions of the Workmen's Compensation Act, the Legislature can easily provide such safeguard, and it should now be suggested, in the instant case, that if it is desired to make the employer further liable for failure to warn employés of the dangers incident to the operation of machinery, and further liable as practical insurers of inexperienced operators, and further liable for injuries caused by machines which have been properly installed, but have become out of order and repair, the Legislature should be appealed to to create such additional duties and obligations that the courts may not properly re-insurance against injuries for which the spond to such appeals. If it is said that some of the allegations of this petition, standing alone, tend to state a cause of action, and if it is further said, in support thereof, that a pleading should be [3, 4] Notwithstanding the great diversity of opinion among the members of this court for the past several years upon the subject of lawful requirements, they are without exception universally agreed upon the proposition that a lawful requirement is something separate and apart from the common-law duty to exercise ordinary care. That a distinction exists is recognized in all the cases which have been decided by this court upon the subject of lawful requirements. If such a distinction has any practical value, it would be difficult to conceive a pleading better designed to illustrate it than the petition in the instant case. When one allegation in a petition alleges generally the failure to guard a dangerous machine, and in a subsequent allegation it is stated that the failure to guard consists in not preventing the operator from putting his fingers in that portion of the machine which it is absolutely necessary that his fingers should enter in order to properly place the materials upon which the machine is to operate, it must be concluded that the pleader seeks to establish an absolute liability against the employer and to place upon him the obligation of absolute operator may be entirely to blame. [2] All members of this court agree that under no circumstances are employers held to an absolute liability, nor are they made insurers against injuries to employés. We quote, as the latest expression of this court | dustrial Commission Act must also be held on that subject, from the opinion in Auto- to constitute a mere legal conclusion. This matic Sprinkler Co. v. Fender, supra, at page position must be admitted to be sound, unless 170 (141 N. E. 276): those sections constitute the employer an absolute insurer of the safety of employés, and, as before stated, no member of this court contends for such a doctrine. "These provisions do not constitute an absolute liability, nor make the employer an insurer against injuries to employés. The general requirement of 'suitable provisions to prevent injury' and the specific requirement that 'they shall guard' must be construed in the light of the definitions of 'safe' and 'safety' in section 871-13, General Code, and should be so administered as only to require 'such freedom from danger to the life, health, safety or welfare of employés or frequenters as the nature of the employment will reasonably permit.' "Applying this general statement to the instant case, it is incumbent upon the plaintiff to show that some guard could have been attached to this punch press which would have prevented repeating without materially impairing the efficiency of the machine. If no guard had been discovered nor invented at the time of the injury, this employer could not be held responsi-sumed that those specific acts of dereliction ble for the omission." In connection with the discussion of this feature of the case, it seems necessary to further consider the force and effect of the general allegations of the petition that the employer failed to comply with sections 15, 16, 25, and 29 of the Industrial Commission Act. An examination of section 29 shows that it contains no requirements whatever relating to employers, but relates solely to procedure. It cannot therefore aid the petition. Section 25 is equally impotent, because it provides in substance that orders made by the Industrial Commission shall be deemed to be prima facie reasonable and lawful, and it appears by the answers to the interrogatories that plaintiff had no knowledge of any such orders having been issued. That section, therefore, cannot aid the petition. We are therefore left only to a consideration of sections 15 and 16, and it is universally con Iceded that those sections must be construed in pari materia with section 13. In an ordinary action for negligence, a petition containing only a general allegation of negligence, without any specification of acts or conduct which would advise the defendant of what he would have to meet at the trial, would undoubtedly be demurrable. And by the same token a general allegation in a petition of a failure to comply with the provisions of sections 15 and 16 of the In In an ordinary action for negligence, if the petition contains a general allegation of negligence, and further proceeds to specify particular acts and conduct amounting to negligence, the court will only regard those specific allegations, and would not permit the pleader to prove other acts of negligence under the general allegation of negligence. Applying the same rule to the petition in the instant case, since it appears that the petition contains general allegations of noncompliance with sections 15 and 16, and proceeds further to allege certain dereliction of duty on the part of the employer, it will be pre are the ones relied upon by the pleader as being a violation of sections 15 and 16, and and that therefore it will be the duty of the court at the trial to limit the introduction of evidence to matter pleaded in the specific allegations. In this view of the case, the general allegation of noncompliance with sections 15 and 16 must, under the general rules of the construction of pleadings, be wholly disregarded. In view of the fact that the Court of Appeals based its judgment of reversal upon the ground that the interrogatories interposed were not broad enough to justify a final judgment, and rêmanded the case for a new trial, we feel that this judgment should be affirmed and the plaintiff below given such further opportunity as he may be able to avail himself of to further prosecute his cause. Said judgment of the Court of Appeals is therefore affirmed, and the cause remanded to the court of common pleas for further proceedings according to law. Judgment affirmed. DAY and ALLEN, JJ., concur. WANAMAKER, J., concurs in propositions 1, 3, and 4 of the syllabus and in the judgment. ROBINSON, JONES, and MATTHIAS, JJ., concur in propositions 2, 3, and 4 of the syllabus, but dissent from proposition 1 and from the judgment. STATE v. SCHWAB. (No. 18099.) (Supreme Court of Ohio. March 11, 1924.) (Syllabus by the Court.) state, which, if believed, will support the The Court of Appeals reversed the judgment of the court of common pleas solely upon the question of alleged error in the charge, but it is urged by counsel for the ac1. Grand jury 31-Court of common pleas cused that the judgment of the Court of Aphas authority to recess grand jury for fur-peals was wrong in refusing to reverse on ther business arising during term. Subject to express statutory limitations the grand jury in each county is under the control and direction of the court of common pleas, and that court has authority after the disposition of matters pending at the beginning of the term to recess the grand jury for such further business as may arise during the term. 2. Rape 59(19)-Instruction as to resistance in prosecution for assault with intent to commit rape held not erroneous. Upon trial of an indictment for assault with intent to commit rape under favor of Section 12421, General Code, an instruction that, "If you further find from the evidence beyond a reasonable doubt that defendant committed the assault upon the said Miss MacMurray with the intent to have sexual intercourse with her against her will and intended to use such force as might be necessary to accomplish his purpose and would have done so but for her resistance thereto, then and in that event you will return a verdict finding the defendant guilty of the crime of assault with intent to rape as he stands charged in the indictment," is not erroneous. Error to County. Court of Appeals, Hancock William Schwab was convicted of assault with intent to commit rape. The conviction was reversed by the Court of Appeals, and the State brings error. Reversed, and judgment of court of common pleas affirmed. -[By Editorial Staff.] The facts are stated in the opinion. MARSHALL, C. J. In this case error is prosecuted by the state of Ohio from the Court of Appeals because the Court of Appeals reversed the judgment of the court of common pleas, wherein the defendant William Schwab under an indictment charging him with assault with intent to commit rape was found guilty under Section 12421, General Code. It is not necessary to refer in any way to the evidence introduced at the trial, because the legal questions argued in this court arise (1) upon the legality of the grand jury by which the indictment was returned, and (2) upon alleged error in the charge. Upon this latter question it is sufficient to say that having examined the record we find abundant evidence introduced by the the ground of, the alleged illegality of the even The admitted facts on the first question are that the grand jury was called at the beginning of the term of court at which the indictment was found and that it heard and disposed of the cases presented at that time and made a report thereof to the court.Thereupon the grand jury by order of the court was retained for further service, according to the usual custom prevailing in that county of retaining the grand jury during the period of the entire term of court, to be discharged only at the end of such term. In accordance with this practice, when the defendant Schwab was bound over to the common pleas court of Hancock county by a magistrate the grand jury was notified to again convene, the vacancies caused by death and absence were filled, and the grand jury was again charged with reference to this particular case and thereupon returned the indictment. [1] It is insisted by counsel for the accused that when the grand jury was charged at the beginning of the term, and disposed of the business then pending, and made a report, the court had no power to recess the grand jury or longer retain it in office, and This theory assumes that all subsequent proceedings were therefore null and void. that the court has no control or supervision over the grand jury after the first charge is delivered, and that the grand jury may thereafter proceed in its own way; that it may disregard the instructions of the court; that it may adjourn at will; and that it may even refuse to hear and decide any of the cases presented to it. This theory, which almost entirely divorces the grand jury from any supervision or control on the part of the trial court, does violence to all theories and traditions relating to the status and the functions of juries. A grand jury is an arm of the trial court, quite as much as the petit jury. It is true that section 10 of the Ohio Bill of Rights makes it obligatory in trials for crime to first have the presentment or indictment of a grand jury. The Legislature could not therefore omit to make provision for a grand jury in the Code of Criminal Procedure, but it does, nevertheless, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |