
    No. 761
    BRADY et v. STAFFORD, Rec.
    No. 19268.
    Supreme Court
    On motion to certify. Dock.
    July 16, 1925;
    3 Abs. 451.
    355. DAMAGES—Should ruling in another state be followed by decree of Court of Appeals without modification of present Ohio rule by Supreme Court?
    452. EMPLOYER AND EMPLOYE—Is knowledge of employe imputed to employer?
    Attorneys—Mitchell &MitcheR for Brady; H. I. N. Stafford and R. N. Wilkin for Stafford, Rec.; all of New Philadelphia.
   Benjamin Brady brought an action against Homer Stafford, Receiver of the A. W. Reiser & Company, in the Tuscarawas Common Pleas for wilfully, wrongfully and knowingly breaking into his coal lands and removing about 6000 tons of coal.

A verdict was rendered in Brady’s favor for $400 but the Court of Appeals reversed this judgment on the ground that the verdict was excessive. It was held by the Court of Appeals that there was no proof in the record that the coal mined was mined willfully and knowingly; but that the coal was taken inad-verdently, and by a Pennsylvania rule it reversed the case because Brady had not shown the value of the coal according to said rule. ■

The case was taken to the Supreme Court and is now pending there on a motion to certify. It is claimed that the Court of Appeals was in error when it held that no evidence was offered to show that the coal had been taken “willfully and wrongfully”. The witnesses used, it is urged had been in the employ of the Reiser Co. and their knowledge may be imputed to their employers.

It is contended that if the employers did not know they were over the line into Brady’s coal, in the exercise of ordinary care and diligence they should have known it, and the law charges them with knowledge of that which they should have known.

The rule in Ohio for ascertaining the amount of damages is claimed .to be: “That the value of the coal when severed, less the cost of severance would be the measure of dam. ages, in ease the defendant acted in good faith, because there is in substance no difference between the rule thus stated and a rule which would fix the measure of damages at the value of the coal in place, for the obvious reason that the value of the coal in place is just equal to its value when severed less the cost of severence.” Key et v. Coal Company, 58 OS. 277.

Referring to the willful taking of coal, “the damages is the value of the coal at place sold, without deduction for cost of severence and expenses.” The court in that qase held, “we are not disposed to question the wisdom of applying to cases of this character that severe rule of damages countenanced by the authorities where bad faith or a willful disregard of the rights of others is shown.”

It is claimed that if the Ohio rule were followed Brady would be entitled to $7500. It is further contended that the jury apparently applied this rule but found from the testimony that a lesser number of tons had been taken. It is contended that the Ohio rule •'in 58 OS. should be respected by the lower courts and if the Pennsylvania rule in assessing damages on an acreage basis, should be adopted, then the Supreme Court should be the first court to modify the present Ohio rule.  