Doren v. Fleming.

one at his or her pleasure upon their own volition might leave and ramble anywhere and everywhere without the needed care and supervision of anyone.

When Joseph left the institution July 27, 1902, it was without any order from those instrumental in placing him there and it was the duty of the superintendent to have him returned to the institution, as much so as it would be his duty to return a youth of tender years. The rules must be uniform; otherwise the efficiency of the institution would be destroyed. We are therefore of the opinion that the superintendent acted within the scope of his authority and the return of Fleming was not a legal wrong. Courts will not and do not assume the authority to prescribe rules for the government of institutions of this character. Their authority to interfere arises only when it is shown that a rule or rules are unreasonable and subversive of the purposes for which such institutions are established and maintained by the state.

We are of the opinion that the rule observed by the authorities of the institution and enforced against Joseph when returned to the institution upon August 10, 1902, is not an unreasonable one. Joseph's own testimony, is we think, entitled to but little credit. In support of this view we regard it necessary only to call attention to his testimony respecting his statement to Powell relative to a contract with the Press Post, and his denial of such contract, and that he simply told the falsehood to get clear of his inquisitor. He admitted the falsehood he told the party who accosted him one evening after dark within the enclosure of the grounds of the institution, that he had been trusted to the care of the conductor when he came from Minneapolis here, and immediately after, admitted he was placed in the care of an uncle from Minneapolis to Chicago and from there to Columbus in the care of a cousin of his mother's. In face of the testimony of the nurse, Frank Goehlhart, not denied by Fleming, Fleming's statement of the treatment he received whilst kept on the third floor, we think is not correct. He is contradicted not only by witnesses of the defendant's, as to the time he was kept in the room on the third floor, but also by George Hill, his own' witness, who testifies he was there but two weeks, corroborating defendant's witnesses upon this point.

Upon the whole record we think that the verdict in this case is not only against the weight of the evidence, but that there is no evidence to support it and the judgment therefore will be reversed and the cause remanded at the costs of defendant in error.

Dustin and Wilson, JJ., concur.

Miami County.

TRADE-MARKS.

[Miami (2nd) Circuit Court, April 10, 1905.]

Wilson, Sullivan and Dustin, JJ.

CHARLES F. RANNELLS v. NOAH H. ALBAUGH ET AL.

TRADE-MARK FOR CERTAIN FRUIT TREES DOES NOT EXTEND TO REPRODUCTIONS

THEREOF.

The protection of a trade-mark cannot be obtained for an organic article which, by the law of its nature, is reproductive and derives its chief value from its innate vital powers, independent of the care or ingenuity of man; hence a trade-mark designed to cover a certain kind of nurserygrown peach tree, will not in the absence of a restrictive contract extend to the reproductions thereof after sale, so as to render the general dealing therein by vendees unlawful.

ERROR to Miami common pleas court.

Sometime in 1889, Mr. N. H. Albaugh, of Tadmor, Ohio, president of the Albaugh Nursery Company, found a peach tree of an unknown variety, purchased it, named it the "Diamond Cling," and had the name and an appropriate label recorded by the United States government as a trade-mark of said Nursery Company. Trees that were grown from the buds of the "Diamond Cling" were put upon the market in 1890, and large numbers of them sold to private customers and other nurserymen. The latter put them on the market. The plaintiff, being a dealer in trees, sold a large number of this variety to customers in other states. It is claimed by plaintiff that the defendant and the Albaugh Nursery Company, through their agents, informed the customers of plaintiff that the defendants, by virtue of the trademark aforesaid, had the exclusive right to sell the trees, and that if the said customers took the trees from plaintiff they would be sued by the defendants, and were purchasing a lawsuit. The customers declined to take the trees, and Rannells thereby lost the result of his sales. He brought suit against N. H. Albaugh and the Albaugh Nursery Company, and claimed that the product of a tree or anything else that reproduces itself is not protected by a trade-mark. The common pleas court held otherwise, and a verdict was returned for the defendants. Error was thereupon prosecuted to the circuit court.

J. A. Kerr and G. T. Thomas, for plaintiff in error:

Sale of a nursery stock or other natural product which reproduces itself, in the absence of a special contract which prohibits it, carries with it the right to reproduce and sell the product under the original

Rannells v. Albaugh.

name. Higgins v. Keuffel, 140 U. S. 428 [11 Sup. Ct. Rep. 731; 35 L. Ed. 470]; Hoyt v. Lovett, 71 Fed. Rep. 173 [17 C. C. A. 652; 39 U. S. App. 1].

Long & Kyle and W. S. Kessler, for defendants in error.

DUSTIN, J.

This cause was submitted by counsel upon the sole question as to whether defendant's trade-mark, "The Diamond," as described in exhibit "B," and meant to cover a certain kind of nursery-grown peach tree, would, in the absence of a restrictive contract, extend to the reproductions thereof, after sale, and render the general dealing therein by said vendees unlawful.

We are of the opinion that the principle announced in Hoyt v. Lovett, 71 Fed. Rep. 173 [17 C. C. A. 652; 39 U. S. App. 1], is sound, and that, "The protection of a trade-mark cannot be obtained for an organic article which, by the law of its nature, is reproductive and derives its chief value from its innate vital powers independent of the care or ingenuity of man.

We think that the court erred in directing the jury to return a verdict for defendant, and in not sustaining the motion for a new trial. The judgment, therefore, of the common pleas court will be reversed, and the cause remanded for a new trial. Wilson and Sullivan, JJ., concur.

OFFICE AND OFFICERS.

[Hamilton (1st) Circuit Court, April, 1905.]

Jelke, Swing and Giffen, JJ.

STATE EX REL. WINN V. W. E. WICHGAR, AUD.

MEMBER OF MUNICIPAL BOARD OF HEALTH NOT ELIGIBLE TO OFFICE OF DISTRICT PHYSICIAN.

A member of a municipal board of health is an officer of the municipality, and as such ineligible to the office of district physician during his term and for one year thereafter, and he cannot therefore recover for services rendered in such capacity.

W. R. Collins, for plaintiff :

Construction of Lan. R. L. 10668 (R. S. 6976); Ash v. Ash, 9 Ohio St. 383; Tyler v. Winslow, 15 Ohio St. 364; Hamilton v. Steamboat Hamilton, 16 Ohio St. 428; Stannard v. Case, 40 Ohio St. 211; State v.

Hamilton County.

Shelby Co. (Comrs.) 36 Ohio St. 326; Allen v. Russell, 39 Ohio St. 336; State v. Darke Co. (Aud.) 43 O. S. 311 [1 N. E. Rep. 209]; State v. Stockley, 45 Ohio St. 304 [13 N. E. Rep. 279]; State ex rel. Fleim, as Mayor of Cumminsville, Peck's Code, p. 31; State v. Funk, 8 Circ. Dec. 782 (16 R. 155); Findlay v. Parker, 9 Circ. Dec. 710 (17 R. 294); State v. Jennings, 57 Ohio St. 415 [49 N. E. Rep. 404; 63 Am. St. Rep. 793]; State v. Anderson, 57 Ohio St. 429 [49 N. E. Rep. 406].

An ordinance or resolution of a general or permanent nature is defined in the following cases: Campbell v. Cincinnati, 49 Ohio St. 463 [31 N. E. Rep. 606]; Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335]; Coppock's Code, p. 80; Thatcher v. Toledo, 10 Circ. Dec. 272 (19 R. 311); Upington v. Oviatt, 24 Ohio St. 232; Cincinnati v. Bickett, 26 Ohio St. 49; Guernsey Co. (Comrs.) v. Cambridge, 3 Circ. Dec. 669 (7 R. 72); Kerlin Bros. Co. v. Toledo, 11 Circ. Dec. 56 (20 R. 603).

O. G. Bailey, for defendant.

PER CURIAM.

A member of the board of health of a municipal corporation is an officer of such corporation, and under Lan. R. L. 10668 (R. S. 6976), to the appointment of district physician by such board during the term for which he was appointed or for one year thereafter, and although rendering services as such physician cannot recover compensation therefor.

Judgment affirmed.

Knife & Shear Co. v. Hathaway."

NEGLIGENCE-DEATH-TRIAL-EVIDENCE-VERDICT.

[Sandusky (6th) Circuit Court, May 16, 1903.]

Parker, Hull and Haynes, JJ.

*JACKSON KNIFE & SHEAR Co. v. FRED C. HATHAWAY, Admr

1. IN ACTION FOR WRONGFUL DEATH PETITION NEED NOT ALLEGE PECUNIARY DAMAGE. In an action brought under Lan. R. L. 9673 and 9675 (R. S. 6134 and 6135) for causing the death of plaintiff's decedent by neglect or wrongful act, the petition need not allege that the next of kin of the deceased have sustained pecuniary damage by his death.

2. BURDEN OF PROVING CONTRIBUTORY NEGLIGENCE RESTS ON Defendant. Proof of the absence of contributory negligence on the part of deceased is not essential to the right to recover for wrongful death. Contributory negligence in such a case is an affirmative defense and the burden of proving it rests on the defendant.

3. DUTY OF MASTER TO INSTRUCT SERVANT CONCERNING DANGEROUS WORK, when. In an action for wrongful death, where the alleged neglect consisted in a failure by the defendant, an employer, to acquaint the deceased, an employe, with the dangers incident to the work in which he was engaged, a charge requested to be given before argument, that "the duty to give instructions existed only when there were dangers of which defendant had or ought to have had knowledge, and which defendant had reason to believe the deceased did not know and would not have discovered in time to protect himself" is erroneous and misleading for not stating that defendant was bound to instruct where dangers existed of which defendant ought "by the exercise of ordinary care to have had knowledge and which defendant had reason to believe the deceased might not have discovered nor been apprised "by the exercise of ordinary care."

4. WHETHER DANGER SO OPEN AND APPARENT AS TO REQUIRE NO INSTRUCTION A QUESTION FOR JURY, WHEN.

Where, in an action for wrongful death, the undisputed facts are, that the deceased, a boy of seventeen years, was killed while attempting to put a belt on a rapidly revolving wheel, the belt flying off and wrapping itself about his person; that the deceased had been employed in defendant's shop only about three weeks; that when he entered the shop he had had no experience in the kind of work upon which he was engaged; that he was asked to do the work which resulted in his death without any instruction or warning being given to him by the foreman or anyone in authority at the shop, though once on a former occasion, he had done something of this kind for another person but without receiving any instruction or warning at that time concerning the danger, it is for the jury to say whether the danger was so open and apparent that instructions concerning it were not necessary and whether the deceased was guilty of contributory negligence.

5. Verdict of $2,950 for DEATH OF BOY NOT EXCESSIVE, WHEN.

Where deceased was at the time of his death about seventeen years of age, unusually bright, had attended high school to within one year of graduation, when he left school to aid in the support of his family and, though earning but about fifty cents a day, was contributing to the support of *Affirmed, no report, Jackson K. & S. Co. v. Hathaway, 50 Bull. 121; 72 Ohio St. 623.