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Morgan County Appeals.

of $74.28, for which amount he prays judgment against the plaintiff.

The plaintiff's reply admits that he sold and delivered the eggs to defendant at an agreed price which was paid ; that they were packed in cases but denies each, all and every other statement and allegation in the amended answer of defendant.

The plaintiff in error seeks to reverse the judgment below for two reasons :

1. He relies upon the provisions of Sec. 12760 G. C.
2. That the court erred in its charge to the jury.
Section 12760 G. C. is as follows:

Whoever sells, offers for sale or has in possession with intent to sell, diseased, corrupted, adulterated or unwholesome provisions without making the condition thereof known to the buyer, shall be fined not more than fifty dollars or imprisoned twenty days, or both."

Counsel for plaintiff in error contends, that by the provisions of the above penal statute, decayed and unwholesome eggs must not be placed upon the market; that they are not the legitimate subject of sale and traffic, unless their condition is made known to the buyer; that no express warranty is necessary, nor is any false representation or deceit requisite, nor is knowledge upon the part of the seller necessary to be alleged or proved by the defendant below.

The action at bar is a civil one and not of a criminal na. ture, and we think it is a well established principle in law that one who pursues a civil remedy can not claim favor under the provisions of a criminal or penal statute to make out his case. The criminal statute in question does not change in any way the well established rules of evidence, or the proof required in cases growing out of the sale and delivery of merchandise where damages are sought, nor does it change the rule of law governing express or implied warranties, as relates to the seller and buyer of merchandise.

Then we are led to inquire, what is the law governing the case at bar?

In the absence of any express affirmation or statement to

Kean v. Bachelor.

such effect, certain warranties are always implied in every contract, relating to the sale and purchase of merchandise.

There is an implied warranty that the seller is the owner of the goods which he offers for sale, and that he has the right to sell the same; that at the time and place of delivery the buyer shall have and enjoy quiet possession of the goods and that the same will be free from any charge or claim of any

third person.

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And we are of the opinion that from the usages of trade that where eggs were sold, as in this case, to a shipper when the opportunity for inspection is slight, if at all, that there is an implied warranty from the seller to the buyer, that the eggs are fit for the purpose for which they are sold, i. e., shipping purposes, and that they are merchantable and not spoiled or decayed at the time of their delivery to the purchaser.

We are now led to inquire—what was the condition of the eggs, involved in this case, at the time of their delivery to the plaintiff in error!

The record discloses that the eggs were purchased by Bachelor of farmers in his community, during the week prior to June 3, 1913, and they were packed in egg cases and delivered on that day to Kean, the purchaser; that the fillers were dry, but the cases a little wet; that Kean saw the damp cases but did not open any of thein or inspect any of the eggs but accepted them and shipped them the same day to Pittsburg; that four days later he was informed, by consignee in Pittsburg, that a large part of the eggs he purchased of Bachelor were spoiled and decayed.

Can it be inferred from these facts that the eggs were spoiled, decayed and unmerchantable, on June 3, when Bachelor delivered them to Kean, because four days later they were in that condition in Pittsburg?

The purchaser had an opportunity to examine the eggs when they were delivered to him, but he did not elect so to do; he saw that the cases were damp, but made no complaint to the seller; if the dampness of the cases would have a tendency to cause the eggs to decay or spoil more rapidly, by reason of that

Morgan County Appeals.

fact, the purchaser was placed upon inquiry and should have applied the test, or made an inspection of the eggs, and if he had done so and found them decayed or spoiled he would have been under no legal obligation to have accepted them.

Speaking from the record, the evidence does not show that at the time of the delivery of the eggs, on June 3, 1913, that they were spoiled, decayed or unmerchantable and we can not assume from the facts and circumstances, as disclosed by the evidence, that they were spoiled or decayed at said time.

All the law required of the seller in this case was that the eggs should be merchantable and not in an unwholesome condition, at the time of the delivery, and that there could be no im. plied warranty that they would be merchantable, or free from decay four days later and after the purchaser had shipped them to Pittsburg.

The question to be determined here is not the condition of the eggs at Pittsburg, but what was the condition of the eggs on June 3, 1913, when Kean accepted them from Bachelor!

Answering this inquiry from the evidence as disclosed by the record, they were merchantable and not decayed or spoiled and that is all that the law requires of the defendant in error in the premises.

We have examined the charge of the court and we are of the opinion that it is a clear and concise statement of the law governing the facts in this case, and therefore we find no error in the charge of the court.

As we view this case, we find no error in the record, which is prejudicial to the rights of the plaintiff in error, and, therefore, we are of the opinion that the judgment below is right and should be affirmed. The judgment of the common pleas court is affirmed at the costs of the plaintiff in error.

Shields and Powell, JJ., concur.

Hawkins v. Railway.

1

MASTER AND SERVANT.

[Cuyaboga (8th) Circuit Court, February 21, 1905.)

Marvin. Winch and Henry, JJ.

* JENNIE HAWKINS, ADMR. v. LAKE SHORE & M. S. Ry.

Failure to Instruct Employe Engaged in Dangerous Work not Action. able Unless Failure Caused Accident. Evidence that an employer failed to , instruct an employe as to

hazard of employment, and that the latter was killed by an accident in the discharge of his duty, is not sufficient to go to a jury where there is no evidence that the failure to warn caused the accident.

ERROR.

C. W. Dille, E. J. Pinney and C. W. Noble, for plaintiff in error.

Brewer, Cook & McGowan, for defendant in error. WINCH, J.

Plaintiff in error was plaintiff below and brought her action against defendant to recover damages for the death of her son, which she alleges was caused by the negligence of defendant. The case has been twice tried by jury. The first trial resulted in a verdict for the plaintiff, which this court set aside on the ground that the verdict was not sustained by sufficient evidence and remanded the cause for a new trial. The opinion of the court at that time sufficiently set forth the facts of the case and the conclusions of the court, rendering extended comment upon the case at this time unnecessary.

Attention, however, is called to what was then said that:

The testimony fails utterly to show the manner of his (Hawkins') death.

The testimony fails to show that the accident was caused by peril of which it was the duty of the company to instruct the decedent, or that a failure to give such instructions was the proximate cause of his death."

The case was tried a second time in the common pleas court and at the close of plaintiff's testimony the trial judge directed

*Affirmed, no op., Hawkins v. Railway, 74 0. S. 424.

Cuyahoga County Circuit.

a verdict for the defendant, to review which ruling the cause is here a second time.

While some additional evidence was introduced at the second trial, it is all along the line of establishing a basis for the presumption that the deceased was upon the top of the car just before the accident occurred which caused his death. With all this additional evidence, after able and exhaustive arguments by skillful counsel and a careful consideration of the evidence, we are unable to come to any other conclusion than that quoted from the former opinion of this court.

The only facts established at the last hearing were: that George Hawkins was a brakeman of little experience; an accident happened; Hawkins was killed. There was also evidence tending to show that defendant failed to fully instruct decedent as to the perils of his occupation, but as to the cause of Hawkins' death and that it was due to failure of the company to instruct him of the peril which came upon him and killed him, there was no proof. The negligence complained of was this failure to properly instruct.

The trial court evidently followed the last ruling of this court and was justified in so doing. The mere fact of the accident did not raise a presumption of negligence on the part of the defendant. Huff v. Austin, 46 Ohio St. 386 [21 N. E. Rep. 864; 15 Am. St. Rep. 613).

There is no presumption that neglect to instruct as to hazards of the employment was the cause of the injury in the absence of proof as to the physical cause of the accident. The theory upon which the case was presented is that a car upon the top of which Hawkins was standing became uncoupled by reason of a defective coupler, collided with another car backed into it by the engineer and precipitated Hawkins between the two cars, because he was uninstructed as to what to do under the circumstances and for that reason did not know how to save himself.

Circumstances were shown in evidence from which it might be deduced that Hawkins was on top of the car just as the accident occurred, but they are not conclusive of that fact. A noise

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