Hunt v. State. probate judge in adjudging the plaintiff insane and for acts of violence and other forms of mistreatment claimed to have been inflicted upon her by the officers and employees of a state hospital where she was committed, does not state a cause of action. NIMAN, J. On May 17, 1911, the legislature passed an act, entitled, "An act for leave to sue the state of Ohio, to adjudicate a claim of Miss Ellen Hunt," and which was in the following language: "Whereas, one Ellen Hunt, of Cleveland, Ohio, was hereinbefore, to-wit, on the 2d day of September, 1897, adjudged insane and committed to the Cleveland State Hospital for the insane; and "Whereas, said Ellen Hunt claims said adjudication and said commitment were illegal; and "Whereas, said Ellen Hunt claims to have suffered great damage, thereby; now therefore, "Be it Enacted by the General Assembly of the State of Ohio: "Section 1. That the said Ellen Hunt be and she is hereby permitted and empowered to commence an action in the court of common pleas of Cuyahoga county against the state of Ohio, that the said claim as hereinbefore set forth may be properly determined; service of process shall be made upon the attorneygeneral who shall represent the state in this action. Should the said Ellen Hunt recover judgment in said action, then in that event the auditor of state is authorized and directed to issue a warrant for the amount of such recovery and costs in favor of said Ellen Hunt." After this act was passed, Ellen Hunt brought suit in the court of common pleas against the state of Ohio, and in her amended petition sought to recover damages for the alleged wrongful act of the probate judge of Cuyahoga county in adjudging her insane, and for acts of violence and other forms of mistreatment claimed to have been inflicted upon her by the officers and employes of the Cleveland State Hospital where she was committed. A demurrer to the amended petition was filed by the state on the ground that it did not state facts sufficient to constitute a cause of action against the defendant in favor of the plaintiff. The demurrer was sustained, and the plaintiff not desiring Cuyahoga County Circuit. to amend or further plead, judgment was entered thereon against her. This proceeding in error is prosecuted to reverse the said judgment. The act in question attempted to create no cause of action. Reference to the preamble shows that the legislature merely recognized that the plaintiff in error claimed to have been illegally adjudged insane and committed to the state hospital for the insane, and to have suffered great damage thereby. The bar that stood in the way of her suing the state was removed, in order that her claim might be determined. The validity of her claim was in no way recognized or approved. This was left to be dealt with by the courts, and determined by reference to established legal principles. The principle of law that the state is not answerable in damages to an individual for an injury resulting from misconduct or unauthorized exercise of power by its officers and agents in governmental matters, is universally established. The rule and the reason therefor are stated by Story, Agency (9th ed.), Sec. 319, in this language: "It is plain that the government itself is not responsible for the misfeasance, or wrongs, or negligences, or ommissions of duty of the subordinate officers or agents employed in the public service, for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs; since that would involve it in all its operations, in endless embarrassments and difficulties, and losses, which would be subversive of the public interests.' See also, Lewis v. State, 96 N. Y. 71 [48 Am. Rep. 607]; Bain v. State, 86 N. C. 49; Western College v. Cleveland, 12 Ohio St. 375; Cincinnati v. Cameron, 33 Ohio St. 336; Robinson v. Greenville, 42 Ohio St. 625 [51 Am. Rep. 857]. Under this principle of law, the amended petition of the plaintiff in the court below stated no cause of action against the defendant, the state of Ohio, and the demurrer was properly sustained. Winch and Marvin, JJ., concur. Woodbury v. Bollmeyer. BILLS AND NOTES JUDGMENTS. [Wood (6th) Circuit Court, May 3, 1912.] Wildman, Richards and Kinkade, JJ. HUBBARD S. WOODBURY V. FRED J. BOLLMEYER & Co. et al. 1. Competency of Testimony of Widow of One of Makers of Promissory Note. In an action on a promissory note, where one of the makers is denying that he executed the note or that there was consideration therefor, it is not error to permit the widow of the other maker to testify as to certain matters which arose between herself and her husband when no other person competent to be a witness was present. 2. Judgment on Cognovit Note Vacated and Burden of Proof. Where judgment taken on a cognovit note is vacated and a new trial awarded with the assent of counsel, and one of the defendants is denying consideration, the case stands as though no judgment had ever been entered, and the burden of proof follows the rule laid down in Ginn v. Dolan, 81 Ohio St. 121. ERROR. L. H. Morgan and Ladd & James, for plaintiff in error. KINKADE, J. This is a proceeding in error to reverse a judgment of the court of common pleas entered in favor of the defendant in error, J. H. Sherwood, in an action based upon a promissory note. At the May term, 1908, of the court of common pleas of Wood county, Ohio, plaintiff in error, Hubbard S. Woodbury, took judgment upon a cognovit note against all of the defendants in this action. At the same term, in July, 1908, J. H. Sherwood sought to have this judgment vacated as against him, setting up that he had a valid defense thereto, to-wit: that he had never executed the note, and that the same was without consideration. A hearing was had at that term and a finding made in favor of Sherwood upon that application. The journal entry covering the action of the court at that time appears to have Wood County Circuit. been prepared by Handy & Wolf, counsel for Sherwood, and to have been approved by Lewis W. Morgan, attorney for Hubbard S. Woodbury. Instead of following the usual practice of suspending the judgment pending hearing of the question as to the validity of the defense presented by Sherwood, the journal entry approved by counsel for both sides as stated, goes much further than is usual and vacates the judgment and grants Sherwood a new trial. After reciting that the court has had presented evidence tending to show that a defense existed in behalf of Sherwood, to-wit, that he never executed the note, that his signature thereto was a forgery, and that he should be given an opportunity to defend, the entry says: "It is therefore adjudged that said judgment be and the same is hereby opened up and vacated and a new trial is granted to the said J. H. Sherwood." Then follows a statement preserving liens, etc., pending the trial, usually found in entries of this character. No exception was taken to this action of the court. Following the vacating of the judgment, the case was continued for nine terms. The amended answer of Sherwood was filed in February, 1911, setting up the fact that he had never executed the note, that his signature thereto was a forgery and that the note was without consideration. The case coming for trial at the May term, 1911, was submitted to a jury on June 8, and a verdict was rendered in favor of the defendant Sherwood. A motion for a new trial was overruled and judgment entered on the verdict. Two grounds are assigned here why this judgment should be reversed. First, it is said that the court admitted incompetent evidence in this: that it permitted the wife of Bollmeyer, who was the daughter of one of the makers of the note, to testify in the case, and also permitted Sherwood to testify, and it is said in view of the fact that Fred J. Bollmeyer was at the time of the trial dead, and in view of the further fact that Mrs. Bollmeyer was testifying to certain matters which arose between herself and her husband when no other person competent to be a witness was present, that the evidence of both of these witnesses was incompetent. It is not contended that Woodbury v. Bollmeyer. Woodbury is the assignee of the deceased maker, Bollmeyer, but it is said that the relation of the parties is such that he falls within the spirit of the law prohibiting parties thus related from testifying. We are unable to sustain the contention of counsel for plaintiff in error as to either point. We think the testimony of both witnesses was competent. The other ground upon which it is sought to have the judgment reversed is that the court committed an error in saying to the jury in the charge, that the burden was upon the plaintiff to maintain his cause of action against Sherwood by a preponderance of the evidence. Counsel for plaintiff in error contends that a different rule applies in a case of this kind where a judgment is opened up and a defense thereto let in, than would apply if it were an action upon the note by Woodbury against Sherwood, and insists that in this action the burden is upon Sherwood to maintain by a preponderance of evidence the defense to the judgment which he claims, and counsel intimate in argument that perhaps the defendant should be required to establish a defense other than a mere denial of the plaintiff's elaim. We are unable to agree with this position. It is our opinion that when the judgment is suspended and particularly in this case where, with the assent of counsel, the judgment is vacated in the journal entry and a new trial granted, that the case stands between the plaintiff and Sherwood precisely as though no judgment had ever been entered and that the plaintiff has the burden of proof to sustain his cause of action by a preponderance under the rule stated in Ginn v. Dolan, 81 Ohio St. 121 [90 N. E. 141; 135 Am. St. 761; 18 Ann. Cas. 204]. We think the court of common pleas stated the rule correctly as to the burden of proof in the charge to the jury, and finding no error in the case prejudicial to the plaintiff in error, the judgment of the court of common pleas will be affirmed. Wildman and Richards, JJ., concur. |