CAUSING WRONGFUL DEATH — EXCEPTIONS.

[Allen Circuit Court,

May Term, 1892.]

Moore, Seney and Day, JJ.

#### LIMA ELECTRIC LIGHT AND POWER CO. v. MATTIE DEUBLER, ADM’R’X.

1. Petition need not Allege that Party, if Living, could have Sued.

In an action under sec. 6134. Rev. Stat., for causing -wrongful death, it is not essential that it be averred in the petition, “that the act, neglect or default complained of was such that if death had not occurred the party injured would have- had a right to maintain an action and recover damages in respect thereof.” Such_ averment would be a conclusion. It is sufficient in such case, if the facts constituting the neglect, etc., causing the injury resulting in the death of the person, are such that if the party had lived he could have maintained an action therefor.

2. Surviving Husband or Wife is next of Kin. if no Issue be Left.

In an action by the personal representative under secs. 6134 and 6135, Rev. Stat., for causing by wrongful act and neglect, the death of a party who died intestate, leaving a wife, but no children, such wife is “next of kin” and entitled to have the amount of the judgment obtained. Under sec. 6135, such action is to be prosecuted for the benefit of the wife. This statute should be so construed that the wife, or the husband, or the wife and children, or the husband and children, or the next of kin, can maintain the action.

S. Bills of Exceptions must have Marginal References to important Points.

Exceptions relating to the admission of testimony contained in a voluminous bill of exceptions, will not be considered by the court unless marginal references are made, as provided for by rule one of the circuit court.

4. Exceptions to a Charge must Distinctly define the Parts Excepted to.

Exceptions to the charge of the court must .fix definitely the particular portions objected to, otherwise such exceptions shall be disregarded, as the court will not hunt through a voluminous bill of exceptions to the evidence.

*721Error to the Court of Common Pleas of Allen county.

.MOORE. J.

It is sought in this proceeding to reverse the judgment of the court of ■common pleas of this county, rendered in favor of Mattie Deubler, administratrix of the estate of Edward Deubler, against the Lima Electric Light and Power Co.

The action was brought in the court below under sec. 6134 of the Revised Statutes, for •causing the death of Edward Deubler, the petition alleging briefly and in substance, that the delendant below, the Lima Electric Light and Power Co., at the time of the death of the plaintiff’s intestate, owned and operated, in the city of Lima, a plant and power station for the furnishing of electric light for public and private use, and for such purposes ■owned and controlled dynamos, wires, poles and all appliances necessary to carry on such business.

That the deceased, Edward Deubler, on the first day of July, 1890, while engaged in ■his usual occupation as an employee of one A. Watson, a groceryman of this city, and without any knowledge or warning that danger was to be apprehended, came in contact with a ■wire that connected with a guy wire belonging to the defendant, which guy wire was heavily ■charged with electricity from defendant’s batteries. That by the contact with the wire I have mentioned, a heavy charge of electricity passed into the body of Deubler, causing his ■immediate death. That the defendant carelessly and negligently constructed and maintained the guy wire, and also the wire from the plant and power station to and about the pole at the northeast corner of Main and High streets, where the guy wire was attached to the pole. That the electric light wire at said place was not sufficiently covered so as to insulate the same, and had remained in such condition for several weeks prior to the death of Deubler. That the electric wire was permitted to come in contact with the guy wire, charging .it with electricity, and that it communicated with the hanging wire, which came in contact with Deubler, causing his death.

The petition also avers, that the defendant below did not, or had not, for several ■months prior to Deubler’s death, made ariy reasonable or proper inspection of its said wires at the intersection named, or elsewhere, and that by reason of such negligence — which is •much more fully averred than this brief summary puts it — Edward Deubler’s death was caused. The petition also avers that the deceased was 25 years of age — sober, industrious, ■etc. That the deceased died intestate, without issue, and leaving as his next of kin, Mattie Deubler, his widow. That a right of action has accrued in favor of the plaintiff, and she ■asks damages in the sum of ten thousand dollars.

To this petition a demurrer was interposed, overruled, and exceptions taken.

The defendant then answered the petition, and afterwards filed an amended answer.

The amended answer alleges:

> “That the defendant, the Lima Electric Light and Power Co., is a body corporate under the laws of Ohio, and owned and operated in the city of Lima, a plant and power station for the furnishing of electric light for lighting the streets, bridges and public places of said ■city; and also the business places of the citizens of said city, and at that time owned and controlled wires, poles, dynamos and other appliances to convey and furnish such electric ■light for the streets of said city, public places and business houses, and which it had the ■right to so erect and furnish.

> “That defendant admits that on the first day of July, A. D. 1880, Edward Deubler was ■engaged, as he had been for some time previous, as an employee of A. Watson, in the grocery of said A. Watson, situated in said city.

> “That said Edward Deubler left no children, and no estate, except household goods.

> “Defendant avers that all said company did in the way of furnishing^ lights, erecting poles and stringing wires, was done in the lawful prosecution of its said business of furnishing lights in the aforesaid manner.

> “That defendant admits the decease of the said Edward Deubler, but denies that it occurred in the way or from the cause or causes averred in the petition.

> “And for further answer, defendant denies each and every allegation in said petition contained. not herein admitted.

> “Second defense — Defendant says that said Edward Deubler would not, if his death had not occurred, been entitled to have maintained any action and recovered therein damages against this defendant; therefore defendant denies that plaintiff has any right, under the laws of Ohio, to maintain this action.”

The affirmative allegations of the answer were denied by the reply in this action.

Upon the issues just made a trial was had, resulting in a verdict and judgment for ■plaintiff.

A motion for a new trial was interposed, which was overruled, and exceptions taken.

*722A petition in'error is filed in this court, and the errors assigned are:

1. Said court erred in overruling motion of plaintiff in error to set aside the verdict therein ■ rendered, and for a new trial.

2. Because the petition of the -defendant in error does not state facts sufficient in law to -constitute a cause of action, and 'because the court erred in overruling plaintiff’s in error demurrer to said petition of the defendant in error in said -court.

3. That the co-urt erred in the admission of -certain evidence in- the trial of 's-aid cause, objected to- by plaintiff in- error at the time.

4. That the said court erred in overruling the motion of plain-tiff in error to take the said cause from the jury after the -defendant in er-r-or had rested her case.

5. That the court -erred in its charge to the jury.

6. That the court erred in entering judgment against said- plaintiff in error on said verdict.

7. That the court erred by -refusing to charge -the jury as requested by defendant.

8. And for other errors prejudicial -to plaintiff in error, manifest on the face of the record. •

The first question is, did the court below err in- overruling th-e demurrerr to th-e petition? The defendant makes two propositions.

First — That the averments of -the petition do not show that if Deubl-er had lived he would 'have had a right of action against the. defendant below, inasmuch as it is not averred “that the act, neglect or fault complained -of in the petition was such that if death had not occurred, the party injured w-ould have had a right to maintain an action and recover damages in respect thereof.” Suc-h is the language of the statute, and to have 'so plead would be more in 'the form -of a conclusion than a fact. If such facts are plead to make the negligence -of -the defendant the -cause -of death, and that by the infliction of physical or bodily injury, it is very difficult to see why, if -the deceased had survived such injury, he should not have a cause of action against the wrongdoer. W-e think just such facts are plead in this petition.

Th-e second proposition is, if w-e- understand counsel fully], that the wifé, or rather wi-d-ow, is not “next to kin” under -the provisions of -the statute so as to maintain the action.

The petition avers that Edward Deubler died leaving no children, and leaving surviving him, his only next to kin, his widow, Mattie Deubler. This claim is settled -by a fair construction of the statute. Section 6135 provides: “Ever}' such action shall be for the benefit of the wife or 'husband and parents and children, or if there be neither of them, then of the next of kin, of the person whose death shall be so caused, an-d it s-h-all be brought by and in the name of the personal representative of the person decease''1.”

We think no such narrow construction as is claimed for it can be given to this statute, and that it should be construed so tnat tire wife or the nu.->b .i.u, < r .ne wife and children, or the husband and -children, or th-e next of kin could maintain the action.

We find no such -difference between the statute as it exists now, and as it formerly existed, as is sought to be made in argument.

We read briefly from th-e case cited by counsel, the case of Steel v. Kurtz, 28 O. S., 191. The first paragraph of the syllabus reads:

> “In an action by the personal representative under the statute of 1851, to recover ■damages by causing by wrongful act and neglect the death of a woman, who died intestate leaving a husband, but no children or their legal representatives — Held: The surviving husband is, within the meaniup. of said art, the next of kin, and as such entitled to the fruits of any judgment obtained in the action.”

In the same case the court says: “The act of 1851 substantially provides: Whenever the death of a person is caused by the wrongful act, neglect or default of another person or *723corporation, a cause of action is given in every case where, if death had not ensued, the person killed would have been entitled to recover damages for the injury sustained in respect thereof. This action is to be brought by and in the name of the personal representatives of the deceased person, for the exclusive benefit of the widow and next of kin of such deceased person; the damages recovered are directed to be distributed to the widow and next of kin, in the proportions provided by law, in relation to the distribution of personal estates left by persons dying intestate. The jury may give such damages as they shall deem fair and just, not exceeding five thousand dollars, with reference to the pecuniary injury resulting from such death to the wife and next of kin to such deceased person.

“The words ‘wife and next of kin,’ used in this last clause, were no doubt intended to designate the same persons as ‘widow and next of kin’ in other parts of the same section of the statute.”

And again the court says: “It is urged that the phrase, ‘next of kin,’ in connection with the word ‘widow,’ as designating the beneficiaries, necessarily excludes widower and husband. This is too narrow a construction of the statute, and would in part defeat the manifest purpose of the legislature. If we expect to find all the statute laws perfe.ct and harmonious, free from all ambiguity, we shall be disappointed. It is the business of courts, where it can be done, to find and declare the meaning of legislative enactments. In this case, the language used is not ambiguous, but rather to be considered incomplete. Yet the policy of the statute and the language used give a clear indication to legislative meaning.”

The phrase “next of kin” is a comprehensive one. Bouvier, in defining it, •says, “The term is used to signify the relations of a party who had died intestate.”' “In general, no one comes within this term who is not included in the provisions; of the statutes of distribution,” etc. As used in the statute, it comprehends all those persons who are entitled to stand in the order of inheritance under the statute of distribution, in the case of personalty.” It is not necessary to read further. We are of the opinion that the court very properly overruled the demurrer to the petition.

It is next claimed that the court erred in overruling the motion for a new trial, on the ground that the verdict is not supported ‘by, the evidence.

The record is quite voluminous, and undoubtedly evidence, to quite an extent, although proper to be given, did not aid the jury very materially in determining the case.

I shall not undertake to go into detail or to rehash at any length the evidence offered— I will state, however, that the testimony shows, that the guy-wire was discovered to be charged with electricity some time before the accident. This is shown by the testimony of Will B. Craig, on page 19 of the bill of exceptions. He says he saw Will Knoup touch the post, and he jumped back. Then Craig touched the post and was shocked. This was a week or ten days before the death of Deubler. Will Knoup testifies to the same on page 62. It is shown by the testimony of Knoup that a wire hung down from the guy-wire, near to the ground — that it hung there three to four weeks prior to the accident. (Page 60).

Hugh Patton saw this hanging wire the night after Deubler’s death. He saw it hit with a board, and when they touched the wire the fire flew from it; page 147.

William Botkins saw Deubler at the time he came in contact with the wire, and at the same time saw a flash of light. (Page 86.)

The deceased was burnt where the wire came in contact with his arm.

He was killed. Physicians testify that Deubler’s death was caused by electricity.

From the testimony the jury might well conclude that the loose wire had been hanging upon the guy-wire for three to four weeks, and that the guy-wire had been charged with electricity for ten days.

The testimony shows the loop on the pole at the corner of High and Main streets was permitted to come in contact with the guy-wire, and that owing to a lack of proper insulation in the loop, which formed a part of the conducting wire, the guy-wire became charged with electricity.

This could have been avoided by so securing the loop at the time it was put up that it could not come in contact with the guy-wire. It could have been avoided by putting circuit breakers in the guy-wire. It could also have been avoided by making use of insulated wire for the' guy-wires.

There is testimony tending to show that the superintendent knew of the condition of things at the corner of High and Main streets before the accident occurred. This is shown in the deposition of Patrick Allen.

*724There is testimony fending to show that however perfect the insulation of the underwriter’s wire, which was in use for conducting wire, may have been when first put up, it became unsafe through the action of the elements, and for that reason would require careful inspection.

We cannot say that the jury might not conclude that the defendant knew or ought to have known by the exercise of such diligence as the use of a dangerous element required, that the wire at the comer of Main and High streets was in an unsafe condition, and being in contact with -the guy wire, rendered that wire ■dangerous to all who came near it.

This is sufficient to show that the averments of the petition are sustained, and sufficient to support the verdict of the jury.

The question is not whether we would have found as the jury did, but is the verdict manifestly against the weight of the evidence? We are not prepared to say that it is, and it is not our province, to disturb it for that reason.

Considerable argument is indulged in upon the proposition that if the neglect ■of the defendant in adjusting and maintaining the electric wire caused the injury, ■■it was the remote, and not the proximate cause. That is, if we comprehend the ¡position taken, that even though the defendant was negligent in permitting the ■main wire to come in contact with the guy-wire at the pole on the corner of 'Main and High streets, still there was another intervening act of negligence, for 'which the defendant was not responsible, and but for which the accident would not have happened. That is, in putting the loose wire over the guy wire, and which wire came in contact with the body of Deubler causing the death.

This is to be answered by merely stating that the evidence tended to prove that the loose wire had remained so long upon, the guy-wire that by reasonable care and prudence, the defendant should have known it. Also that by such care the defendant should have known the guy-wire was charged with electricity. So these facts being found, the negligence was the proximate, and not the remote cause of the injury.

Exceptions were taken to the introduction of evidence. These exceptions are to be found scattered through a record of some five hundred pages of typewritten matter, without a single marginal reference. I will call attention to Rule 1, of the circuit courts of the state.

“Bills of exceptions must be printed or written in a plain, legible hand, upon but one side of the paper. Each page must be numbered, and there must be marginal references to the important parts relied upon. Each bill of exceptions must contain a full index, must have a paste-board, or other substantial cover, and in no case shall it be folded or rolled, etc.”

Without a compliance with this rule it is almost impossible for the court to review exceptions to the admission of testimony, and with the accumulation , of business and the method adopted in preparing such voluminous bills of exceptions; — even to raise mere questions of law- — we are compelled to enforce the rule. The. rule was adopted to facilitate the transaction of the 'business of the court, and we find it a very necessary one.

Because of the failure to comply with this rule, we refuse to' consider questions raised upon the introduction .of testimony, and the entry will so show. I might add further, that this rule was adopted at the first meeting of, the judges of the circuit court in 1885, and it has been upon the journal of the circuit court ever since that time. The attention of counsel and of the bar has been called to it at almost every term of the circuit court, and while we were lenient for some time after the adoption of the rule until it could be fully understood, the vast amount of business and the extensive records furnished to us, compel us to enforce this rule, and we do it in this case; so, for that reason, as I have said, we refuse to examine this record and hunt through it page by page, to ascertain where an exception was taken to the introduction of testimony.

The defendant below asked certain charges to be given; some of which were undoubtedly correct, but upon an examination of the charge of the court, we are *725satisfied they were substantially incorporated in the charge, and the court was not required to repeat them.

Cable & Parmenter, for plaintiff in error.

J. L. Price, for defendant in error.

Exceptions were attempted to be taken to certain portions of the charge as given. We think these are not saved. They are attempted to be saved in this manner:

> “The defendant excepts to that part of the charge of the court where it stated that the defendant should make careful inspection so as to detect any defects in the insulation of its wires. Second — As to the statement of the court that the answer admits that the defendant furnishes motive power. Third — The charge in regard to the degree of care required of the defendant, and also as to the use of the word “highest.” Fourth — As to the rule laid down as to the failure of the defendant to see and remove loose wire from the guy wire.”

These various matters. exist and run through the charge, and we are not called upon to go through the charge and determine just what portion of it was excepted to, or intended to have been excepted to, by the party who sought to take, the exception. Exceptions to a charge must fix definitely what is"objected to, as has been repeatedly held and ruled upon by the circuit court of this county.

The judgment of the court below will be affirmed, with costs, but without penalty. Cause remanded to the court below for execution of the judgment below, and for costs.