Summit County Circuit. "The Court: It may stand. Defendant excepts.' It was perfectly competent for this witness to say that since the accident her mother had done no ironing, washing or sweeping, but she should not have been permitted to give her opinion as to why her mother didn't do this work. It was also competent for the daughter to testify as to her mother's apparent physical condition and ability to work, but to permit her to give her opinion that her mother couldn't work because she was too nervous was clearly error. Medical experts might possibly be called upon to express an opinion of this kind but only after full statement of the facts upon which they based it. In this case the rules laid down by the Supreme Court in the case of Balt. & O. Ry. v. Schultz, 43 Ohio St., 270, 282 [1 N. E. 324; 54 Am. Rep. 805], regarding the admissibility of the opinions of witnesses, were clearly violated. The evidence thus admitted was extremely prejudicial to the rights of the defendant below. For error in ruling on evidence the judgment is reversed and the cause remanded for a new trial. Marvin and Henry, JJ., concur. CONTRACTS-DAMAGES. [Cuyahoga (8th) Circuit Court, December 28, 1908.] Marvin, Winch and Henry, JJ. BETH HAMIBRASH HAGADOL BETH ISRAEL CONGREGATION V. JACOB ETTINGER. 1. In Breach of Contract of Employment, Plaintiff's Neglect of Duty not Required to be Wilful. In an action of damages for breach of contract of employment where defendant pleads that plaintiff neglected his duty, it is error to charge the jury that plaintiff's neglect of duty, to warrant a discharge, must be wilful. Any neglect of duty, wilful or otherwise, is sufficient, if it tends to prejudice the employer's interests. 2. Condonation of Breach of Employment Question for Jury. Whether failure to discharge plaintiff after he has been guilty of neglect of duty, amounts to a condonation of his failure, is for the jury to say, under all the circumstances of the case. Congregation v. Ettinger. 3. Measure of Damage for Breach of Employment Contract. The measure of damages for wrongful discharge is the balance due under the contract less the amount the plaintiff earned, or might have earned, upon reasonable efforts to secure other employment, during the remainder of the term. The plaintiff can not remain idle without making any effort to reduce the damages. It is for the jury to say whether, in fact, the plaintiff did make reasonable efforts to obtain other employment. [Syllabus by the court.] ERROR. F. P. Strong and Wm. E. Gunn, for plaintiff in error. WINCH, J. This dispute between a religious congregation and its cantor was aired at too great length in the courts. It is to be hoped that the parties have now worn themselves out and that bitterness and feeling have expended themselves, so that peace and harmony may again prevail. The trial judge is not entirely to blame for the protracted contest which involved the introduction of much irrelevant testimony and too profuse a charge; counsel for both parties are to blame for this result, not only in permitting evidence of collateral matters to be introduced which had no bearing upon the real issue in the case, but also in the requests to charge, which were not sufficiently condemned to meet the simple requirements of the case. The cantor was discharged before his term of employment was ended. Was there good cause for his discharge, and if not, what was the measure of his damages? These were the only matters for consideration, supplemented by the rebuttal claim of the plaintiff that the congregation had condoned some of the failures to completely perform his contract. The bias or prejudice of Bialowski or others of the congregation, or improper motive in the discharge, if any, had no place in the case. We can not reverse the judgment, however, because of the introduction of such evidence, because the record shows that plaintiff in error not only permitted that kind of evidence to be introduced without objection, but went into the matter itself. Cuyahoga County Circuit. We find prejudicial error in the charge, however, in several respects. Throughout the charge the court reiterated the statement that the plaintiff's neglect of duty, to warrant a discharge, must be wilful. We do not so understand the law. Any neglect of duty, wilful or otherwise, is sufficient, if it tends to prejudice the employer's interest. Beckman v. Garrett, 66 Ohio St. 136 [64 N. E. 62]. Again the charge as to condonation is unfortunate, because obscure. Having properly charged on the subject the trial judge undertook to explain his meaning and seems to say that the mere continuance of the employment, after knowledge of the plaintiff's neglect, would amount to a waiver, and that the defendant would then have to prove that it did not intend condonation. Of course it was for the jury to say what the facts amounted to, and no greater burden was upon the defendant than to explain the delay, if it could. The charge as to measure of damages was erroneous. The court charged that if the jury found for the plaintiff it should award him the balance due under the contract less such sum as it might find he had earned during the term. This should have been qualified so as to authorize the jury to deduct not only that which the plaintiff had earned, but what he might have earned upon reasonable efforts to secure other employment. The plaintiff can not remain idle without making any effort to reduce the damages to the defendant. Whether or not he did use reasonable diligence to secure other work should have been left to the jury, under proper instructions. For error in the charge in the respects stated, the judgment is reversed. Marvin and Henry, JJ., concur. Bolton v. State. WORK AND LABOR. [Cuyahoga (8th) Circuit Court, January 11, 1909.] Marvin, Winch and Henry, JJ. J. W. BOLTON V. STATE. Act Regulating Hours of Labor of Girls Constitutional. The act of February 28, 1908 (99 O. L., 30), making it unlawful to permit a girl under eighteen years of age to work in a factory more than eight hours in one day, is constitutional. [Syllabus by the court.] ERROR. Hoyt, Dustin & Kelley, for plaintiff in error. WINCH, J. · Plaintiff in error was convicted of employing a girl under eighteen years of age and permitting her to work more than eight hours in one day, in the factory of which he was superin tendent, contrary to the provisions of the act of February 28, 1908 (99 O. L., 30). In this court it is claimed that the provision of the law referred to, under which plaintiff in error was convicted, is unconstitutional. We find nothing upon which to base this claim. The state has plenary power to legislate regarding minors, as wards of the state; they have only such right to contract as the state awards them. That the provision of the law referred to is a reasonable exercise of the police power of the state is apparent, if it be viewed in its bearing upon the health of immature girls who are to be the future mothers of our citizens. The judgment of the Legislature in this matter is not to be set aside by the courts. Judgment affirmed. Marvin and Henry, JJ., concur. Cuyahoga County Circuit. LIBEL AND SLANDER, [Cuyahoga (8th) Circuit Court, January 11, 1909.] Intentional Fraud Necessary to be Shown in Libel Based on Words Used in Disbarment Proceedings. In an action for libel based on words used in papers filed in disbarment proceedings, the petition is demurrable if it fails to allege that the defendant was guilty of intentional falsehood, or that he took advantage of legal proceedings to utter false, malicious and slanderous words. [Syllabus by the court.] Herman Preusser, for plaintiff in error. WINCH, J. It can not be denied that the libelous articles complained of bear internal evidence that they were filed in court by the de-. fendant in disbarment proceedings as charges of unprofessional conduct against the plaintiff. Whether all statements made by parties and witnesses in court are absolutely privileged, is a question that does not appear to have been squarely decided by the Supreme Court of this state. It was found unnecessary to decide this question in the cases of Lanning v. Christy, 30 Ohio St., 115 [27 Am. Rep. 431], and Liles v. Gaster, 42 Ohio St., 631. There is an obiter in the case of Post Publishing Co. v. Maloney, 50 Ohio St., 71 [33 N. E. 921], 84 to the effect that: "In such cases the privilege constitutes an absolute bar to the action." In this case the petition, to which a demurrer was sustained, contains no allegation that the defendant was guilty of intentional falsehood, or that he took advantage of legal proceedings to utter false, malicious and slanderous words. Such being the case, the inference or presumption of malice that would arise, if the words were not used in a judicial proceeding, is rebutted by that fact. Liles v. Gaster, supra. Judgment affirmed. Marvin, and Henry, JJ., concur. |