author: POLLOCK, J.

text:
    STREET RAILWAYS.
    [Mahoning (7th) Court of Appeals,
    October 6, 1917.]
    Mahoning Valley Ry. v. Minnie Gorz.
    Pollock, Metcalfe and Farr, JJ.
    1. Care Required of Street Railway as to One Assisting Passenger in Getting Child on Car.
    In the absence of a rule of the company or a custom permitting persons to enter its car, when it stops to-receive passengers, for the purpose of assisting passengers with children or baggage, a railway company, operating street cars by electricity over the streets of a city, is only required to exercise toward such persons ordinary care after it becomes- aware of their presence within the car.
    2. Street Railway Chargeable with Notice of Person on Car Assisting Child.
    Such railway company is chargeable with notice of the presence of such persons within its car, not only when those in charge of the car have actual notice, but when in the exercise of ordinary care they should have notice of their presence.
    3. Ordinary Care Charges Street Railway with Notice of Knowledge of Car Employes.
    Ordinary care charges such railway company with notice of what-' ever those in charge of the car should know in the proper discharge of their duties in the operation of such car.
    [Syllabus by the court.]

      Harrington, DeFord, Heins & Osborn, for plaintiff in error.

      Anderson, Lamb & Tetlotv, for defendant in error.
   POLLOCK, J.

This is an action in error and is brought to reverse a judgment obtained by Minnie Gorz against the Mahoning Valley By. in the eommon pleas court of this county.

Minnie Gorz, the plaintiff below, was a resident of the city of Youngstown, and on the afternoon of October 17th, 1915, her daughter, Mrs. Pritchard, with, her child two ' years old, was' • visiting her.

About nine o’clock on that evening the daughter-wishing to go home, Mrs.-Gorz took the child in her arms and in company with Mrs.- Pritchard walked down -Berlin" street to Federal street, upon which street the Mahoning Valley Ráilway Company, the defendant below, maintained its tracks and operated passenger cars over said trades by electricity. They signalled an approaching car which, when it reached the intersection of Berlin and Federal streets, stopped and four passengers alighted therefrom. This was a regular and usual stop for the discharge and receiving of passengers.

After these passengers alighted Mrs. Gorz set the child on the rear platform of the car, and just as she set the child down, and before she had released her hold on it, the car started and continued until it crossed Berlin street.

Mrs. Gorz claims that when the ear started it was started with a jerk, and she was thrown down on the steps of the ear with her feet hanging over the steps, and was dragged in that way across the street to where the car stopped. She did not intend to become a passenger on the car; she only intended placing the child on the platform and then withdrawing from the car and allowing the child’s mother, who intended to become a passenger, to take charge of the child.

This was a large car — possibly used in interurban traffic —with a partition across it, the front end being used as a smoking 'compartment and the rear end of the car occupied by ladies and other passengers.' This car had two steps leading down from the rear platform.

The conductor testifies that he was standing in the rear compartment, perhaps near the partition, looking through the windows watching the passengers leave the ear, and to see if anyone wished to become a passenger. He testifies that he did not see Mrs. Gorz.

The errors complained of are in the charge of the court, and also that the verdict is excessive. The first error which we will notice occurs in the charge.

. The court said to the jury that the word “dragged” as used by one or more of the witnesses, and also in the petition, would ordinarily mean that some portion of her body was dragged along the pavement, but he instructed the jury that they were not required to apply so narrow a construction, because under this pleading and under the evidence, whether her feet touched the pavement or not, if she was dragged along against her will forcibly by the car — whether she was lying on the car or had grasped hold of it after it had started — it would be within the meaning of the word ‘ ‘ dragged. ’ ’ No doubt this expression of the court was occasioned by reason of some remarks of counsel during the arguments of the ease, and the court couples what he says in regard to the petition with the language used by witnesses.

It is required of the court to explain the petition and construe the words or language used therein, but it should be left to the jury to determine the meaning of words used by the witnesses while testifying, and the court has no right to direct the jury to give to words used by the witnesses any other than their ordinary meaning, unless the words used had a technical meaning not known or understood ordinarily, and were so used by the witnesses. But the error complained of does not affect the substantial rights of the defendant below and for that reason was not prejudicial.

Again the court charged the jury in regard to the damages which the plaintiff below might recover that:

“If she is entitled to recover, she is entitled to recover that fair amount of damages that you say would be to her full compensation for that which you shall determine from the evidence you have before you she has suffered in the sense of damages to her person, as a result of what you have theretofore found was a negligent omission of duty on the part of defendant.”

It is urged that the court erred in using the expression “full compensation.” Mrs. Gorz was a married woman and there was testimony tending to show that she had received medical attention from two or three doctors; that she was unable to perform her household duties, such as washing, cooking, baking, etc., and the objection to this charge was that the jury would understand from the language that she had a right to recover for these things.

This objection would be well taken if there was no limitation or explanation in the charge of this language, but the court following this language limits the recovery to her pain and suffering and the disability inflicted upon her in the sense of affecting her ability to be up and about and to care for herself. The court by this part of the charge limits full compensation to her personal rights and the jury could not misunderstand the charge.

It is further urged that the court erred in the charge in regard to the care the railway company owed to Mrs. Gorz. After saying to the jury that this lady was not a passenger, but that the railway company owed a duty towards people who came for the purpose of assisting their friends, who had children or baggage, in getting on the car, and that that duty was not the high degree of care- owed to passengers but ordinary care, the court used the following language:

“In other words, while they did not know that she was there, yet the law assumes that knowing that she had a legal right to be there the same as their passengers had to be there, although in fact they did not know it, they were bound to exercise every such reasonable precaution for her protection in the situation such as an ordinarily prudent person or corporation ordinarily would, considering all of the situation and surroundings.”

Mrs. Gorz had a right to go out on the street with her daughter and child, who were intending to become passengers on ■this car. The street car company, and others using the street, ■must exercise ordinary care not to injure her. But, if she had remained on the street her injuries would not have occurred. It was only when she entered or placed her body within the car of the railway company that she received her injury. She did not enter this car to become a passenger, but to place therein this -child' who would become a passenger by reason of its mother being-a passenger.

The testimony does not disclose that there was any rule of the company or any custom permitting persons to enter the car, when stopped to receive passengers, for the purpose of assisting passengers who might have either children or baggage, or that it was necessary for Mrs. Gorz to assist her daughter to enter the car by placing this child upon the platform. What she did was only for her own or Mrs. Pritchard’s convenience.

When Mrs. Gorz entered this car as she did, and under these circumstances, the. railway company was not required tó exer.cise towards her the degree of care required of it towards its uassengers, but it owed her the duty of ordinary care after it was aware of her presence within the car. 3 Thompson, Negligence See. 2658; 2 Hutchinson, Carriers, Sec. 997.

The real question in this ease to be determined is the obligation resting upon the railway company to ascertain and know when a person not intending to become a passenger is within their car. There is no. testimony that the conductor or anyone in the railway company’s employ knew of Mrs. Gorz’s presence within the car, or that she was in such a position that the starting of the ear would injure her.

It was the conductor’s duty to stop the car a sufficient length of time to discharge and receive passengers; but in the absence of a practice acquiesced in by the railway company permitting persons who did not intend to become passengers to enter the car in order to give assistance to others who did, the railway company did not owe the duty of detaining its car to allow such persons to withdraw therefrom unless it knew of their presence therein. Neither was it required to know that all persons, other than passengers, had left the car before starting it. The obligation of the railway company to others than passengers who might be within the ear is not an absolute duty but a relative duty, and arises when those in charge of the car know of the presence of such person, or in the exercise of ordinary care should know of their presence. St. Louis & S. F. Ry. v. Lee, 46 L. R. A. (N. S.) 357; Hill v. Louisville & N. Ry. Co. 124 Ga. 243 [52 S. E. 651; 3 L. R. A. (N. S.) 432]; Morrow v. Railway, 134 N. C. 92 [44 S. E. 12]; Berry v. Railway, 22 Ky. Law Rep. 1410 [60 S. W. 699].

The conductor or those in charge of an electric street car are not required, when the car stops to discharge and receive passengers, to ascertain before starting if persons not intending to become passengers have entered the car, or have placed themselves on the steps of the car in such a position that they may be injured by the starting of the car, but they are chargebale with what they know and with whatever they should see and know in the proper discharge of their duties in operating the car. New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. 130].

The court in its charge in the case at bar said that:

“While they did not know that she was there, yet the law assumes that knowing that she had a legal right to be there the same as their passengers had to be there, although in fact they did not know it”—

they were bound to exercise ordinary care.

By this charge the court said to the jury that Mrs. Gorz had a legal right to enter this car, to set the child on the platform, and that the railway company was bound in law to know that she was there although they in fact did not know it. This would require an electric street car company to know that everyone who did not intend to become a passenger had withdrawn from their car before they could safely start it, and is placing a greater burden upon the company with regard to third persons than is required with regard to their passengers.

If the conductor knew, or in the exercise of ordinary care should have known, that Mrs. Gorz was within the car placing the child on the platform, he would be required to exercise ordinary care towards her, and in the exercise of that degree of care he should have delayed starting the ear until she could withdraw therefrom.

We think that the giving of this instruction was error which requires a reversal of the case. We find no other errors in the reeord.

Metcalfe and Farr, JJ., concur.


source: Caselaw Access Project

author: SHIELDS, J.

license: Public Domain

text:
    COMPENSATION AND SALARIES — OFFICE AND OFFICERS.
    [Muskingum (5th) Court of Appeals,
    May Term, 1917.]
    Powell, Houck and Shields, JJ.
    State ex rel. Harry C. Pugh v. Cecil W. Tanner, (City Aud.).
    New Man Serving Unexpired Term Entitled to Salary in Effect at Time He Was Named for Office.
    The salary of an appointee to a vacancy in a public office is controlled by the law in effect at the time his appointment was made, and not by the law in effect at the time his predecessor ■was elected for the term which he is to complete.
    [Syllabus by the court.]

      Harry C. Pugh, for plaintiff in error.

      J. E. Harlcness. for defendant in error.
   SHIELDS, J.

The relator instituted a proceeding in mandamus to compel the city auditor of the city of Zanesville, Ohio, to issue his warrant upon the treasurer of said city in favor of the relator for the sum of $40.62, in payment of what he claims to be his salary due him as a member for the municipal civil service commission of said city at the time of the commencement of said proceeding.

In an answer filed the defendant, as said city auditor, denies that the relator is entitled to said sum of $40.62 as salary as a member of said commission as in his said petition stated, and he denies that said relator is entitled to receive a salary in excess of: the sum of $25 per annum as said commissioner for the reasons therein stated.

The sufficiency of the above answer was challenged by a demurrer filed thereto by the relator, which demurrer was by the court below overruled and judgment was thereupon rendered in favor of the defendant. Error proceedings are prosecuted to this court to reverse said judgment of the court of common pleas.

It appears that the relator, on August 24,1916, was duly appointed by the mayor of said city as a member of said commission to fill a vacancy caused by the resignation of one James M. Bailey, who on November 19, 1915, had been appointed as a member of said commission for the term of six years; that the relator thereupon qualified and has since continued to act as a member of such commission; that the salary of the members of said commission was originally fixed by an ordinance of said city at $25 per annum, which said ordinance on the-day of July, 1916, was repealed and another ordinance of said city of that date Avas passed fixing the annual salary of the members of said commission at $150 per annum, which said latter ordinance took effect February 16, 1916.

The question raised by said demurrer is whether the salary of the relator is controlled by the provisions of said- city ordinance passed and which-became effective prior to his appointment and qualification as a member of said commission, or is such salary controlled by the provisions of said city ordinance in effect at the time of his predecessor’s appointment and resignation as a member of said commission.

Acting under constitutional authority, the legislature of this state enacted Sec. 4213 G-. C., Avhieh provides that:

“The salary of any officer, clerk or employee shall not bo increased or diminished during the term for which he was elected or appointed.”

In the investigation made we have failed to find that the question here made has been passed upon by the courts of this state, although it appears to have been the subject of judicial action by the courts in some other states, not, hoAA^ever, with unvarying unanimity of vieAv and decision, to Avhieh Ave.will refer later on.

At the outset we deem it unnecessary to say, in view of the constitutional provision that there shall be no change in “the salary of any officer during his existing term,” that the relator would not be entitled to any increase in salary under any legislation passed after his appointment nor during the term for which he was appointed, nor that his appointment made under favor of Sec. 486-19 was not for the unexpired term of said Bailey, as urged on behalf of the defendant in error. But as already stated, this is not the question made here. The question to be met here arises under a proper .interpretation to be given the terms employed in said sect-io» of the statute. It is unnecessary to remark that the-intent and meaning of a statute are to be ascertained by the language employed therein, and if such language is plain and unambiguous and such statute is within the constitutional authority of the law-making power, the plain duty of the courts is to enforce it according to its terms. All the authorities seem to agree that the constitutional and statutory inhibition against a change in the compensation of an officer during his incumbency of an office is founded upon considerations of public policy in guarding and protecting the public against a possible combination of office-holding interests and log-rolling legislatures in an effort to raise their salaries. With the limitation of power laid upon the law-making body as if to prevent such influences and abuses, it would seem that the legislature in framing this law had in mind the incumbent of the office rather than the office itself; for, among other things, the statute declares that “the salary of any officer * * * shall not be increased * * * during the term for which he was elected or appointed.” What does “during the term for which he was elected or appointed” refer to ? Does it refer to the full term of office for which a person is elected or appointed, or to the officer ? Does it refer to the time of the incumbency of the office, or to the incumbent of the office ? If to the former, in either instance, then “during the term” is to be treated as an unbroken and indivisible unit, without reference to an intervening vacancy in the office by death, disability, resignation or otherwise, and without reference to the number of incumbents of the official term. Is this the correct interpretation to be given the statute referred to? As stated, we have found no case directly in point decided by the courts of this state, except the reference made in State v. Raine, 49 Ohio St. 580 [31 N. E. 741], wherein the court say:

“A statute, whatever terms it may employ, the only effect of which is to increase the salary attached to a public office, contravenes Sec. 20 of Art. II of the Constitution of this state, in so far as it may affect the salary of an incumbent of the office during the term he was serving when the statute was enacted.”

But the same question involved in the case before us has been directly passed upon by courts in some other states, as before stated, and among them is the case of Board of Freeholders of Atlantic Co. v. Lee, 76 N. J. L. 327 [70 Atl. 925], which was an action in mandamus to compel the county clerk to pay over certain fees, etc.,- received by him for services rendered as such clerk. It appears that one Lee was appointed county clerk in December, 1907, to fill a vacancy in said office caused by the death of one Scott in November, 1907, who had been elected to said office in November, 1905, for the constitutional period of five years from that date. Notwithstanding Scott’s death, it was claimed by Lee that Scott’s term of office did not expire until December, 1910. Reed, Judge, speaking for the court in this case, says:

“The words ‘term of office’ may, in a sense, be used to indicate the statutory period for which an officer is elected. We speak of the term of office of the President of the United States; the term of office of the governor of the state, meaning that the first was four years and the latter three years; but the words ‘term of office’ may also mean a period much shorter than that for which the particular officer was elected. His term of office may be terminated before the expiration of the statutory period for which he was elected by impeachment, or resignation, or death of the particular officer. The happening of these contingencies are implied limitations upon the right of the elected officer to continue in office for the period for which he would otherwise be entitled to hold. "When such a contingency occurs the officer’s term expires; there is a vacancy, and upon the appointment or election to fill the vacant office, the term of another officer begins. # * * In view of the purpose of the legislation, there seems to be no question that the words ‘term of office’ was the term during which the then present clerk was entitled to receive compensation for his services. When Mr. Scott died it terminated his official life, and the period of his official life was his term of office. When Mr. Lee was appointed he began a new term, not as legatee of Mr. Scott, but by a distinct appointment to a vacant office. ’ ’

Again, in Gaines v. Horrigan, 72 Tenn. (4 Lea) 607, it is held that:

“The constitutional provision that the salaries of judicial óffieers shall not be diminished or increased during the time for which they were elected does not apply to their term of office, and where a judge is appointed to fill out the unexpired term of a deceased judge he is entitled to compensation fixed by law at the time he assumes the duties of the office. ’ ’

And in Barnum v. Gilman, 27 Minn. 466 [8 N. W. 375; 38 Am. Rep. 304], while a case in quo warranto involving the right and title to an office, Judge Cornell, speaking for the court in said.ease upon the subject of “term of office,” says:

“The clause may very properly be construed to mean ‘ during his term of office, ’ and this may be the full term dux-ing which the office may be held, or such shorter period as the incumbent may consent to hold it. The, term of every elective office, in the absence of any express enactment of law to the contrary, may be terminated at the pleasure of the incumbent by resignation, or by the acceptance of an incompatible office.”

And Timlin, J., in a separate concurring opinion in the decision of the court in the case of State v. Frear, 138 Wis. 536-557 [120 N. W. 216; 16 Ann. Cas. 1019], in speaking of appointments to fill vacancies in public office, says:

“The provision of oiir constitution relating to increase or diminution of salary is not limited to judicial offices,' but includes' all public officers, and appears as a general limitation upon legislative power.' It restricts the power of the legislature with reference to different classes of persons; relates to the officer, not to the office, to his term, not to the term. It is as follows:
‘ ‘ ‘ Section 26. The legislature shall never grant any extra compensation to any public officer * * * nor shall the compensation of any public officer be increased or diminished during his term of office. ’ ]
“I construe this as wholly personal to each of the classes therein mentioned, including the ‘public officer,’ and the expression ‘during his term of office’ accords with this construction. Otherwise the framers of the constitution would have used the expression ‘public office’ instead of ‘public, officer,’ and ‘the term.’ instead of ‘his term.’ * * * I regard the provision as personal to the incumbent of the office. If he enters the office after the change of the salary has taken place he is entitled to, that salary, and as to him it can not be increased or diminished; but if the office is vacated by death or otherwise before the expiration of the term the succeeding incumbent takes, the .office with the salary fixed by the Legislature for that office .and in force at the time of the appointment or election of the succeeding incumbent, even though such appointment or election be for part of an unexpired term. I am strengthened in this view because this construction of the constitution was arrived at by Chief Justice Whiton and by Chief Justice Cole, both of whom took part in framing the constitution, and by Chief Justice Ryan and Justice Paine, and others, in drawing and accepting salaries pursuant to this interpretation. * * * I have no doubt and have had but little difficulty in arriving at the conclusion that the true interpretation of See. 26, Art. 4 of the state constitution is that he who comes into an office lawfully by election or appointment to fill a vacancy caused by the death, disability, resignation, or removal of a different prior incumbent is not under the restrictions as to increase or diminution of salary which bound the prior incumbent, but tabes under the law in force at the time of his appointment or election to fill the vacancy.”

It is said that an opinion is valuable only as it appears to be supported by reason and authority. The opinion last cited appears to rest on the interpretation of a constitutional provision forbidding a change in the salary of an officer during the time for which he was appointed, not unlike the constitutional provision in this state, and it appears to us as being logically sound in principle and in’accord with the letter and spirit of the fundamental law and statute of this state.

We are aware that the question made has been decided pro and con in different jurisdictions, and while the question is not altogether free from doubt, still we are of the opinion that the weight of authority sustains the contention made by the relator herein and the judgment of the court of common pleas is therefore reversed. It follows that the writ may issue as prayed for and it is accordingly so ordered.

Powell and Houck, JJ., concur.


author: HOUCK, J.

text:
    MUTUAL BENEFIT ASSOCIATIONS.
    [Muskingum (5th) Court of Appeals,
    July 7, 1917.]
    Powell, Houck and Shields, JJ.
    Zanesville Lodge, No. 867, L. O. M. v. Jennie Fluharty, Admx.
    Right of Appeal Provided,by Beneficial Order Must be First Exhausted before Courts Have Jurisdiction to Rehear Claim.
    In an action for recovery of sick or death benefits, technical defenses do not avail unless sound in fact and law; and where it appears that the claimant has exhausted the rights given him under the constitution and by-laws of the order without securing an allowance of his claim, he may have the matter reheard before the courts, notwithstanding the constitution and bylaws of the order specifically provide that the decisions of its tribunals shall be final and conclusive and no resort can be -had to the courts.
    [Syllabus by the court.]
    Error.

      U. W. Kuntz, for plaintiff in error.
    P. H. Twnnehill, for defendant in error.
   HOUCK, J.

The plaintiff in error in this court was the defendant in the common pleas court, and the defendant here was the plaintiff there.

The material facts necessary for a proper determination of this proceeding in error are as follows: On the 8th day of April, 1912, Thomas Fluharty, the plaintiff’s decedent, became a member of Zanesville Lodge, No. 867, Loyal Order of Moose; that his dues were fully paid to April 1, 1914, and he was in good standing in the lodge when he took sick, on February 2, 1914; that he died on December 13, 1914, and during his entire sickness he was unable to follow his usual or other avocation; that his sickness was not caused by intemperance, immoral or vicious conduct on his part; that on February 3, 1914, he duly notified said lodge of his sickness, as required by its laws, and that a few days thereafter the lodge physician, Dr. D. T. Matthews, as a member of the benefit board of said lodge, examined said Fluharty and made a report to it adverse to the allowance of sick benefits to him, and-that immediately Fluharty took an appeal to the lodge from the adverse report of said physician and said benefit board in refusing to allow him such sick benefits, and the lodge, upon such appeal, voted and approved the action of its physician and benefit board, and refused to pay Fluharty any sick benefits, and duly notified him that it would not do so.

From the date of the notification of the said Fluharty by the lodge that it would not pay him sick benefits he was not away from his house, but was confined there by reason of his said illness until his death. Shortly after the death of Fluharty his wife, Jennie Fluharty, was appointed administratrix of his estate, and on the 11th day of October, 1915, presented a claim of $117 for sick benefits and $100 for funeral benefits to said lodge, and the same was by its secretary referred to the benefit board of said lodge, and the said board refused to allow the claim, and an appeal was taken to the lodge, which approved the action of its benefit board and refused to pay the. claim or any part of it. Suit was brought by the administratrix against the lodge, before a justice of the peace, and a judgment was rendered in favor of the plaintiff for the full amount of the claim. The case was appealed to the court of common pleas, trial had to a jury,. and a verdict for the plaintiff for the full amount of the claim. Motion for a new trial ivas overruled and judgment entered on the verdict, and error is prosecuted to this court seeking a reversal of the judgment below.

The general constitution and laws of the Loyal Order of Moose provide as follows:

“Any beneficiary member, who is and.has been in good standing in a subordinate lodge for a period of six months, and who, through sickness or other disability, is unable to follow his usual or other vocation, shall, after the first week of said sickness; or disability, and during the continuance thereof, receive a sum not less than five dollars and not more than ten dollars per week; for not more than thirteen weeks, provided that such sickness or disability has not originated from the intemperance, immoral or vicious conduct of such a member.
“The benefit board shall receive and carefully consider all reports from the lodge physician or physicians.
“They shall have full power and authority over all matters pertaining to the payment of benefits as provided in the laws of the order.
“It shall be the duty of the benefit board to receive from the lodge physician reports on all sick and disabled members, and they shall determine who are and who are not entitled to such benefits and submit their reports to the lodge. The report shall state the amount to which they are entitled, and a recommendation that warrants be drawn for the payment of same, subject to the approval of the. lodge. If no objections are filed, the dictator shall direct that warrants be drawn for payment of the benefits recommended.
“When the benefit board shall report to the lodge that an applicant for benefits is not entitled thereto, their decision shall be final unless an appeal is taken to the lodge.
“At the next regular meeting after the death of a beneficiary member who is not in arrears for dues and who is otherwise in good standing, his lodge shall, declare and draw warrant for such sum as the by-laws of the lodge may provide, which in no ease shall be more than one hundred dollars ($100) and apply the same to the payment of funeral expenses.
“No member of the order shall apply to any civic authority in an- attempted redress for any alleged wrong or injury arising out of a matter pertaining to the order, until he shall first have exhausted all possible means of redress provided for by the laws of the order. ”

The by-laws of Zanesville Lodge, 867, Loyal Order of Moose, provide for the payment of nine dollars per week sick benefits, not- to exceed thirteen weeks, and $100 funeral benefits.

Counsel for plaintiff in error insists that the judgment below be reversed for the following reasons :

First, that the civil courts are without jurisdiction in the premises.

Second, that Thomas ■ Fluharty did not in his lifetime prosecute his appeal from the lodge’s refusal to pay his sick benefits through all of the tribunals of the Order, as required by its laws.

Third, if it be a fact that the claim, as presented by the administratrix of Thomas Fluharty, deceased, had been prosecuted through all the necessary tribunals of the Loyal Order of Moose, and the decision was adverse to her, it would be final, and she Avould have no right to appeal to the civil courts for redress.

The questions to be determined in this case are as to Avhether or not under the constitution and laws of the Loyal Order of Moose, as hereinbefore set out, and the conceded facts in this case, the alleged grounds of error are Avell taken.

The facts, as disclosed by the record, clearly show that the plaintiff’s claim has been prosecuted through all the tribunals of the order, as proAdded by its laws, rules and regulations, and that payment of the same had been refused. All of this proceeding was had before action to recover Avas brought in civil court.

A member of a fraternal beneficial organization consisting of a supreme lodge and subordinate lodges which are governed by a constitution Avherein authority is given to the member to appeal from any decision made by an officer, committee or benefit board of said organization, Avherein the same affects the substantial rights of said member, must pursue the remedy prescribed by the society, and fully exhaust all his rights of appeal therein, as provided by the constitution and laAVS of the organization, before resorting to the civil courts for redress. No provision is made in the constitution and by-laws of the Loyal Order of Moose for an appeal from the decision of the lodge in its refusal to pay sick benefits to a member to any higher tribunal of the order. The decision of the benefit board is final, unless an appeal is taken to the lodge, which Avas done in the case before us, and the lodge affirmed the decision of the benefit board in its refusal to pay sick benefits. Thus it Avill be seen that all the rights of the decedent to obtain the benefits which ■hé claimed, so far as the laws of the order proAdded, had been fully complied Avith, and it was necessary to resort to the courts for such redress if any Avas to be obtained.

The law is well settled that where one becomes a member of a fraternal organization he is bound to exhaust the remedies provided by the laws of the order which are not in conflict with the state laws which provide for such remedies, and until the member has done so he can not seek relief in our courts.

This brings us to the discussion of the question raised by plaintiff in error as to whether or not it was prejudicial error for the trial judge to refuse to give to the jury before argument the following written request which was made by plaintiff in error, the defendant below:

“When a member of the Zanesville Lodge, Loyal Order of Moose, claims to be entitled to sick benefits, he must seek his remedy in the first instance in the lodge and the tribunals of the order, and a determination of the matter by such lodge and tribunals in substantial accordance with the laws of the order will be final and conclusive of the right to receive such benefits, and such member can not sue in the civil courts for the recovery of such benefits.”

If this request contains the correct rule of law, then the judgment in this case should be reversed. Is it the law that when a fraternal beneficial society determines that one of its members is not entitled to benefits that its decision is final and conclusive, and that such member can not thereafter resort to the civil courts for the recovery of the same? Most certainly this is not the law.

The request to charge was properly refused. It was too broad, because it attempted to take from the civil courts their jurisdiction to hear and determine the questions concerning the right of 'one to receive money in advance of the right to sue, by an alleged agreement not to resort to the courts to do so. The law in this respect is laid down by a long line of decisions in our own and other states, the rule being well settled in the case of Myers v. Jenkins, 63 Ohio St. 101, 120, where the learned judge speaking-for the court says:

“After a right has accrued or an obligation has been incurred a party may waive his rights or refuse and neglect to enforce them, or he may by contract bind himself to submit the matter to arbitration or other special remedy. But a party can not bind himself by contract in advance to renounce his right to appeal to the courts for the redress of wrongs. If this could be done an association might be formed in the state which would renounce our constitution and laws, and set up a different system of government for themselves, and in case of wrongs and oppression they would be debarred from resorting to our courts, and would be compelled to submit to the decisions of their own tribunals, and would most likely become dissatisfied and disorderly, resulting in riot and bloodshed. The whole state has an interest in all its inhabitants, and it is to its interest that the rights of all should be protected according to the course of jurisprudence it has provided; and for that reason its courts are always open for the redress of wrongs, and no person can by contract in advance deprive himself of the right to appeal to them. * * * Contracts may provide for ascertaining and •fixing certain matters in a particular manner, but the ultimate adjudication of the questions of law must remain in the courts, unless waived after the rights have accrued, or the obligations have been incurred. ’ ’

In the present case where the ultimate question is as to the right to recover an amount of money, certain facts may be ascertained and determined for the purpose of carrying out the terms and provisions of the constitution and by-laws of the order; but the final determination of the question as to whether or not the plaintiff is entitled to the benefits in dispute may be litigatéd in the courts, notwithstanding the constitution and by-laws thereof may specifically provide otherwise.

In the case before us plaintiff and her decedent having presented the claim now in suit to said Loyal Order of Moose, as provided by its constitution and by-laws, and the same having gone through the course required by its laws, and having been rejected, the plaintiff had a legal right to resort to the courts for the purpose of establishing her claim.

The real basis and in fact the underlying purpose of a ■fraternal beneficial organization such as the Loyal Order of Moose is not to indemnify or secure its members against financial loss, but to accumulate and maintain a fund obtained by dues received of its members for beneficial and protective purposes, and to be used by them for the purpose of aiding and relieving its members in the misfortune of sickness, injury or death. Thus, in the practical application of the beneficial objects of a fraternal society it must not lose sight of the fact that where one of its members has departed this life leaving loved ones behind who are the natural objects of his bounty as well as the fraternal subjects of the brotherly love and financial help of the society, as provided by its constitution and laws, it can not escape such duties resting upon it by mere technical defenses; they must be sound in fact and law. The undisputed facts in the case at bar show that the decedent and this plaintiff have fully and completely complied with all the requirements of the order necessary to entitle the plaintiff below, the defendant in error, to the relief prayed for in the petition in the common pleas court.

We have examined all the alleged errors, as set out in the petition in error, and we find none that would warrant a reviewing court in reversing the judgment in this case as entered in the court below. Therefore the judgment of the common pleas court is affirmed.

Powell and Shields, JJ., concur.


author: RICHARDS, J.

text:
    PRINCIPAL AND SURETY.
    [Lucas (6th) Court of Appeals,
    June 29, 1917.]
    Chittenden, Richards and Kinkade, JJ.
    Horatio N. Jex v. Jewel Tea Co.
    Employer Concealing Information of Embezzlement by Agent after Knowledge thereof Cannot Hold Liable Sureties on Continuing Guaranty of Faithful Performance.
    An employer who holds a continuing guaranty signed by sureties to secure the faithful performance of the duties of his agent and acquires knowledge that his agent is embezzling funds collected for the employer and conceals the information from the sureties, can not hold them liable on the guaranty for funds received and misappropriated by the agent after the employer had knowledge of his guilty conduct.
    [Syllabus by the court.]

      Error.

      L. M. Murphy and A. J. Croll, for plaintiffs in error.

      Smith, Baker, Effler & Allen, for defendant in error.
   RICHARDS, J.

The plaintiffs in error became sureties .in 1910 on a bond in the amount of $500 given to guaranty the faithful performance of the duties of one "Walter Frank Dieterle who was an employe of the Jewel Tea Co. Among the duties which devolved upon the employe was the collection of money from customers, aggregating $25. to $75 per day, and making a daily report of such collections and turning in the funds so. received by him.

The employe having converted to his own use and embezzled large sums of money aggregating more than $1600, an action was brought against the sureties on the bond to recover the amount thereof. On the trial of the ease in the court of common pleas a verdict was directed for the plaintiff, at the close of all the evidence, for the amount of the bond. Error is prosecuted to this court, the errors relied on being the introduction of incompetent evidence and the action of the court in directing the verdict.

One of the exhibits which was offered in evidence was manifestly not admissible, but no exception was taken to its admission and the action of the co.urt, therefore, can not be relied on as error in this eourt.

The important question for determination in this case is whether the trial court was authorized to direct a verdict in favor of the plaintiff. Evidence was offered tending to show that in 1910 or 1911 the agent Dieterle had received and appropriated to his owii use from $250 to $300 of his employer’s money. Captain Jex, one of the bondsmen, had no knowledge whatever of this condition of affairs but it was known to the employer. The amount of that defalcation was subsequently made good by the employe Dieterle. The evidence tends to show that in 1912 Dieterle again misappropriated funds of his employer, but on this occasion the facts were communicated to Captain Jex but were not known to the company. In- the years 1913 and 1915 the amounts embezzled increased very largely and late in the year 1915 the employer, becoming aware of the situation, caused the arrest of Dieterle and he was tried and convicted of embezzlement. They notified the two sureties of the defalcation in 1915 and subsequently brought this action on the bond.

It is urged by the sureties as a defense that the company fraudulently concealed the information which it had as to the defalcations of Dieterle and that by reason of such action of the employer the sureties are released from liability on the indemnifying bond. The evidence contained in the bill of exceptions is not very clear nor explicit as to precisely the time when these various defalcations occurred, nor as to the precise amounts thereof, except that it appears that the amount which he had misappropriated and which remained unpaid in November, 1915, was $1645.

The sureties on the indemnifying bond were entitled to the exercise of the utmost good faith on the part of the employer of Dieterle and if such good faith was not exercised we apprehend the true rule of law is that the sureties would be discharged. The law applicable to such cases is stated in 2 Brandt, Suretyship (2 Ed.), Sees. 423 and 424, to-be that where there is a continuing guaranty for the honesty of a servant, if a master discovers that the servant has been guilty of dishonesty in the course of the service and continues him in such service without the knowledge of the guarantor, the guarantor is released from the liability to make good any loss which may arise from the dishonesty of the servant during the subsequent service, and the employer is held to impliedly stipulate that he will not knowingly retain the employe in his service after a breach of the guaranty justifying his discharge and if he does do so, without the knowledge or consent of the surety, the surety will be exonerated. The learned author states in the first section cited that if the dishonesty had existed before the surety became bound and the master had concealed it the surety would not have been liable, and that the cases are the same in principle.

To the same effect is Estate of Michael Rapp v. Insurance Co. 113 Ill. 390 [55 Am. Rep. 427]; Delbridge v. Building & Loan Assn. 82 Ill. App. 388; Roberts v. Donovan, 70 Cal. 108 [9 Pac. 180; 11 Pac. 599].

The case of Watertown Fire Ins. Co. v. Simmons, 131 Mass. 85 [41 Am. Rep. 196], has been thought by some authoiv ities to lay down a different rule, but a careful examination of that ease will show that the court held that, however irregular or negligent the agent had been, he was not guilty of any defalcation or other dishonest or fraudulent conduct, and by reason thereof no duty rested on the creditor to use active diligence to protect the sureties, and that they were not discharged. A fair implication to be drawn from the opinion of the court in the ease just cited leads to the conclusion that the Massachusetts court would have held, if they had found that the agent was guilty of fraudulent or criminal conduct and that this fact was known to the employer and concealed from the sureties, that the sureties would have been discharged.

It has been held in Ohio in Dinsmore v. Tidball, 34 Ohio St. 411, that if an employer obtain security for the faithful performance of the duties of an agent, knowing at the time that such agent is a defaulter, and fail to disclose the fact to the surety, thereby inducing the surety to execute the bond of indemnity, then such employer can not recover of the surety.

See, also, Smith v. Josselyn, 40 Ohio St. 409. In this latter case the trial court had directed a verdict for the plaintiff against the sureties after there had been some evidence tending to show that the agent had been guilty of culpable carelessness while in the employment of the plaintiff and before the giving of the bond sued upon, and that the plaintiff had knowledge of this conduct and had failed to communicate the same to the sureties. The Supreme Court held under these circumstances that these were matters of fact which should have been left to the jury to be determined. While these Ohio cases arose where the fraudulent or criminal conduct occurred before the' giving of the bond, the case is the same in principle as if the fraudulent or criminal conduct occurred thereafter, providing the fact's were known to the employer and concealed from the surety.

In view of the fact that the judgment must be reversed and the case remanded for a retrial, we will follow our usual practice and not go into a review of the evidence but content ourselves with stating that sufficient evidence was introduced to require a submission of the case to the jury for its determination.

The judgment will be reversed and the case remanded for new trial.

Chittenden and Kinkade, JJ., concur.


author: CHITTENDEN, J.

text:
    DIVORCE AND ALIMONY.
    [Lucas (6th) Court of Appeals,
    April 21, 1916.]
    Kinkade, Chittenden and Richards, JJ.
    Mary A. Albert v. George W. Albert.
    1. Alimony Awarded to Husband on Petition for Divorce and Alimony Notwithstanding Divorce Refused.
    Where a husband flies a petition for divorce and alimony, and upon trial the court refuses to grant a divorce, alimony may he awarded to the husband.
    2. May Husband Sue for Alimony Alone, Quaere.
    Whether a husband can begin and maintain an action for alimony alone, — query.
    3. Husband may Compel Support by Wife Regardless of Right to Sue for Alimony Alone.
    Under Secs. 7995 and 7997 G. C., a husband, unable to support himself, may compel his support by the wife regardless of any right to maintain an action for alimony alone.
    [Syllabus by the court.]
    Error.

      Marshall & Fraser, for plaintiff in error.
    W. W. Campbell and B. F. James, for defendant in error.
   CHITTENDEN, J.

This is a proceeding in error from a decree of the common pleas court awarding alimony to the defendant in error. The case was tried upon, the amended petition and an amendment, and supplement to the amended petition of the plaintiff, George W. Albert, and the answer thereto of the defendant, Mary A. Albert. The prayer of the plaintiff was for divorce and alimony. The court found from the pleadings and evidence that certain property described in the journal entry was acquired by the parties during coverture and paid for from the earnings of the plaintiff, and that title was taken in the name of the defendant. The coui-t further found that the plaintiff was not entitled to a divorce and his prayer for that relief was denied. It was further found that the parties are living separate and apart; that the plaintiff is totally blind; and that the defendant has refused to live with or care for the plaintiff. The entry thereupon recites that the plaintiff is entitled to alimony from the said defendant and that the defendant should convey to the plaintiff as and for alimony, an undivided one-half of all the real estate. The decree further provides that the defendant shall execute a conveyance to the plaintiff for such undivided one-half interest and that upon her failure so to do the decree shall operate as such conveyance. To all of which findings and decree, the defendant excepted. No bill of exceptions is filed in this court, and the only question submitted for decision may be stated as follows:

Where a husband files a petition for divorce and alimony, and upon trial the court refuses to grant a divorce, can a decree for alimony be awarded to the husband ?

This requires an examination of the statutes relating to that subject. The decree is said to be based upon the provisions of Sec. 11992 G. C. which section reads as follows:

“When it appears to the court that the husband is the owner of little or no property and the wife is the owner of lands or personal estate, or both, the court may adjudge to the husband such share of her real or personal property, or both, or may decree to him such sum of money out of her estate, payable in gross or by installments, as it deems just, having due regard to all the circumstances of the parties.”

This section by its terms seems to be ample authority for the granting of the relief given in this ease, but plaintiff in error contends that it is not applicable to a situation such as is disclosed by the record. Attention is called to the fact that the section just cited was a part of Sec. 5699 R. S., which section, by the adoption of the General Code, was divided into three sections and numbered 11990, 11991 and 11992. That part of the section of the Revised Statutes now found in Sec. 11992 G. C. was an amendment to See. 5699 R. S., passed by the general assembly May 19, 1894, 91 O. L. 348. Prior to this amendment there was no provision for the granting of alimony to a husband when a divorce was granted to the wife upon the aggression of the husband.

Reliance is had upon the case of DeWitt v. DeWitt, 67 Ohio St. 340 [66 N. E. 136], and attention is called to the language of the court in the decision of that case, found on page 353, a portion of which we quote:

“The amendment, if taken unqualifiedly, is contradictory to the earlier part of the section, and if the defendant desired to avail himself of its provisions, he should have made a case justifying its application. The purpose of the amendment probably is to place the erring husband in a position respecting property akin to that given an erring wife by the succeeding section, irat the language is less general and noticeably more guarded.”

In that case a divorce had been granted to the plaintiff upon the aggression of the husband so that the exact question now under consideration was not before the court. It appears from an examination of that case that the husband was possessed of considerable means at the time of the decree, and we have no doubt that what the court meant by the language “and if the defendant desired to avail himself of its provisions, he should have made a case justifying its application,” was that he had not shown to the trial court that he was the owner of little or no property and that his wife was the owner of lands or personal estate. This ease is in no way decisive of the one at bar.

The origin of the doetidne of alimony, as stated in 14 Cyc. 743, is based upon the common law obligation of the husband to support his wife, which is not removed by divorce obtained by her for his misconduct. It is based upon a sound public policy. As stated by Judge Davis in Fickel v. Granger, 83 Ohio St. 101, 106 [93 N. E. 527; 32 L. R. A. (N. S.) 270; 21 Ann. Cas. 1347]:

“Alimony is an allowance for support, which is .made upon considerations of equity and public policy. * * '* It is based upon the-obligation growing out of the marriage relation, that the husband must support his wife, an obligation which continues even after a legal separation without her fault. ’ ’

Many other esses might be cited showing that the' courts have ever recognized that the doctrine of alimony rests upon cither the common law or the statutory obligation of the husband to support' the wife. It is unnecessary to review the history of the legislation of this state whereby the property rights of mai*rie’d women have been gradually enlarged until, for some years, they have been the same as those of a feme sole. After having established this status, it was further provided by an act of the general assembly, See. 7995 G. C., “Husband and wife contract toward each other obligations of mutual respect, fidelity and .support.” ' Sec. 7997 G. C. provides that, “The husband must support himself, his wife and his minor children out of his property or by his labor. If he is unable to do so the wife must assist him so far as she is able.” By the first of the above cited sections husband and wife mutually contract for each other’s support. By the latter section the duty of support is placed primarily upon the husband, hut with the obligation upon the wife to assume her contractual burden in case of his disability. In view of their legal status as thus stated, every reason exists why the right of the husband to the support of his wife, under the conditions named in the statute, should be enforced by legal proceedings. We - do not have before us the question as to whether or not a husband can begin and maintain an action for alimony alone, as no such ease is presented by the pleadings, for in this case the action, as has been stated, was for divorce and alimony.

If we exami ne See. 5699 R S. as it is insisted we ’must do in order to correctly construe Sec. 11992 G. C. we find that the amendment begins with these.words, “But in any case” when it appears to the court that the husband is the owner of but little or no property, etc. It is significant that the amendment did not read, “But in any case when a divorce is granted.” We think it an entirely reasonable construction of the section of the Revised Statutes that it ivas intended by the legislature to empower the court, in any case, — that is, any case in which a divorce was sought, — to grant alimony to the husband if the facts and circumstances required it. We find that when it came to codifying the laws of Ohio this section was divided into three separate sections, and that the legislature adopted the code with these three sections standing as independent sections. We are of opinion that one of the purposes in doing this was to make the intent of the legislature with reference to the granting of alimony to a husband more clear and definite. The General Code is to be construed in the form in which it is now found. While if. is often, proper and perhaps necessary to trace the history of legislation and to examine the original form of a law to ascertain the true intent and meaning and to properly construe it, yet the form of the statute as it existed prior to the codification is not necessarily controlling. State v. Toney, 81 Ohio St. 130 [90 N. E. 142]. We quote from the language of Judge Spear, beginning on page 139, as follows:

“Nor is it accurate to treat the change in the statute as the work of the codifying commission. Their codification was submitted to, considered by, and adopted by the law making body of the state, the general assembly. It should not receive any less respect because the change may have been recommended by three commissioners learned in the law instead of being proposed in the first instance by some single member of the general assembly, and after all is said, the enactment receives its vigor and force as law by reason of its enactment by the general assembly, no matter from what source the inspiration came.”

We are unable to hold that the operation of Sec. 11992 G. G. is limited by Sec. 11990, and that a husband can not be awarded alimony unless a divorce is granted to the wife because of his aggression. If the legal duty devolves upon the wife to support the husband when she is able to do so, and he is disabled, and if that right can be enforced upon the granting to her of a decree for divorce, it would seem by every rule of logic and common sense that she should certainly be required- to furnish such support while the marriage is still in force.

"We are strengthened in our view of the plain intent of the legislature in providing for the granting of alimony to a husband, by Sec. 11,992 G. C. by a consideration of Sec. 11994, which provides, in substance, that the court may grant temporary alimony to either the husband or wife “during the pendency of the action for divorce, or alimony alone.”

An examination of the legislation to which attention has been called plainly shows that the legislature attempted to give a husband and a wife equal property rights, and to impose upon them mutual obligations, and to furnish means for the enforcing of these obligations, and we think that the court had the power to make the decree to which error is prosecuted.

Aside from all questions of the power of the court to- grant the relief that it did, as alimony and by virtue of the statutory enactments relating to that subject, a majority of the court are of opinion that, with the record as we find it, that is to say, npon an examination of the pleadings and the finding and decree of the court, there being no bill of exceptions presenting the evidence, the decree may be and should be sustained upon an additional ground. Secs. 7995 and 7997 quoted above impose the positive legal duty upon the wife to support or assist in the support of the husband when he is unable to support himself. The circuit court of Pike county, in Hickle v. Hickle, 3 Circ. Dec. 552 (6 R. 490), held that under these statutes a husband might compel his support by the wife regardless of any right to maintain an action for alimony alone. The court made' an exhaustive examination of the cases bearing upon the subject, and entered a decree in favor of the husband, requiring the wife to support him. The decree herein was evidently not based upon the sections quoted above, for the decree in this case is that the plaintiff is entitled to alimony and tbe defendant is ordered to convey to the plaintiff an undivided one-half interest as and for alimony. In view of the fact that the petition contained all of the allegations necessary to present a case to compel the wife to furnish support to her husband, we deem it immaterial that the trial court denominated the award as alimony. The character of the allowance is not changed by the fact that in the decree it is designated as, alimony. Kelso v. Lovejoy, 29 O. C. C. 597 (9 N. S. 539), affirmed, no op., Lovejoy v. Kelso, 76 Ohio St. 598; Webster v. Miller, 37 O. C. C. 682 (18 N. S. 272), affirmed, no op., Webster v. Miller, 83 Ohio St. 473.

The decree is in this court attended by every presumption of its regularity and correctness, and the burden is upon the plaintiff in error to show prejudicial error. This she has failed to, do.

The court, while not in entire accord on grounds for affirmance, is unanimous in its conclusion that the judgment should be affirmed.

The decree will be affirmed.

Richards and Kinkade, JJ., concur.


text:
    LIBEL AND SLANDER — TRIAL.
    [Lucas (6th) Court of Appeals,
    March 6, 1916.]
    Kinkade, Chittenden and Richards, JJ.
    Edson Ely v. Frederick J. Borck.
    1. Slander not Actionable Where Invited.
    The publication of a slanderous charge invited or procured by the plaintiff will not' sustain an action for defamation.
    2. Court Warranted in Confining Charge to Issues Made by the Pleadings, When.
    It is not error for the trial court to confine the charge to the issues made by the pleadings notwithstanding evidence on another issue was. introduced without objection, there being no application to amend and no request to charge.
    [Syllabus by the court.]
    Error.

      Hay & Cor dill, for plaintiff in error.

      Cornell Schreiber, for defendant in error.
   RICHARDS, J.

The action was brought in the common pleas court by Frederick J. Borek to recover damages for slander, and resulted in a verdict and judgment in favor of the plaintiff for $200. The slander charged in the petition involved an accusation of larceny, and evidence was offered on behalf of the plaintiff to substantiate that charge.

The defendant, in his answer, and on the witness stand, denied uttering the slanderous words, but the answer which he filed, said to have been prepared by himself, contained no allegations raising the question of privileged communication.

The testimony offered by the plaintiff tended to show the utterance of slanderous words at the home of the defendant, and in the presence only of the defendant and his wife and the plaintiff. Immediately after these words are claimed to have been so uttered, the plaintiff returned to his own home some seventy rods distant and at once came back to the premises of the defendant, bringing with him on this occasion his hired man. The plaintiff claims that on his arrival with his employee, the slanderous charge was repeated without anything having been said by him. The defendant Ely testifies that, when the plaintiff and his hired man came to his premises the second time, the plaintiff said, ‘ ‘ Tell us now what you said in the house; repeat what you said; accuse me of stealing chickens.” The charge upon which the action is founded is apparently based upon words claimed to have been uttered on this occasion by the defendant.

Because of the circumstances under which the plaintiff returned to the premises of the defendant, and because of the testimony above quoted, it is claimed that the words which were uttered on this occasion were invited or procured by the plaintiff, and that, therefore, an action for slander can not be based on them.

The law with relation to founding an action for slander upon words which have been invited or procured to be uttered by the person claiming to be slandered, does not seem to be in serious doubt. "While the cases are not uniform on that subject, the great preponderance of authority, as well as reason, is in favor of the proposition that an action of slander will not lie under such circumstances. Irish-American Bank v. Bader, 59 Minn. 329 [61 N. W. 328]; 17 R. C. L. 320; Nott v. Stoddard, 38 Vt. 25 [88 Am. Dec. 633]; Konkle v. Haven, 144 Mich. 667 [108 N. W. 98]; Shinglemeyer v. Wright, 124 Mich. 230 [82 N. W. 887; 50 L. R. A. 129], The court in this latter case say that the maxim volenti non fit injuria applies to alleged slanderous statements made under such circumstances. A contrary doctrine is announced in the case of Rudd v. Cameron, 26 Ont. L. Rep. 154 [26 Am. & Eng. Anno. Cases, 618], and the cases upon this subject are gathered in the note to the case, in the course of which it is said that the holding of the reported case is not in harmony with the authorities.

While we must, therefore, hold that the defense of privileged communication, or that the words uttered were invited or procured by the plaintiff, would be a sufficient defense, if pleaded and established by the evidence, it does not follow that the judgment rendered in this ease should be reversed.

The trial court did not charge the jury on this subject, and was not asked so to do, and the issue was not made by the pleadings. Under such circumstances it is not reversible • error for the trial court to confine the charge to the issues as made by the ■pleadings. It is true that the evidence above quoted went in without objection, and the court would have been justified in charging the jury on the issue thus made, under authority of many decisions rendered by the Supreme Court of this state. But, in the absence of any request to amend the pleadings, and in the absence of any request to charge on the subject, the omission to so charge can not now be urged as a ground for reversal. I call attention to Mehurin & Son v. Stone, 37 Ohio St. 49, where the court said that if evidence was admitted without objection on a defense not pleaded, it is not error for the court to confine the jury, in their consideration of the ease, to the issue made by the pleadings. See also, Columbus Ry. Co. v. Ritter, 67 Ohio St. 53 [65 N. E. 613]; State v. McCoy, 88 Ohio St. 447 [103 N. E. 136].

The Supreme Court was announcing no new rule when it said in Palmer v. Humiston, 87 Ohio St. 401 [101 N. E. 283], that the issues of a case are defined by and confined to the pleadings; and this elementary rule of pleading ought not to be lost sight of. Certainly, if the court in the instant case had seen fit to charge the jury- on the subject of the alleged slanderous statements having been invited or procured, it would have been perfectly justified in so doing, as is stated in Rayland Coal Co. v. McFadden, Adm’r, 90 Ohio St. 183 [107 N. E. 330].

The evidence which was introduced by the plaintiff was amply sufficient to carry the ease to the jury, and the court would not have been justified in directing a verdict for the defendant.

We find no error to the prejudice of the plaintiff in error, justifying reversal, and the judgment will therefore be affirmed.

Chittenden and Kihkade, JJ., concur.


author: CARPENTER, J.

text:
    WILL CONTEST.
    [Cuyahoga (1st) Court of Appeals,
    February 21, 1916.]

      Nellie W. Morris v. Dollie Osborne et al.
    1. Presumption of Knowledge of Decedent as to Contents of WfH Executed.
    A presumption arises in a will contest that the will was drawn in accordance with instructions given by the testatrix and was read to her and explained and found by her to be expressive of the instructions so given.
    2. Uncontroverted Proof of Testatrix’s Capacity to Make Will and Repubiication with Codicils Sufficient to Sustain Will whether Read or not at Original Execution.
    Although no evidence is proffered as to whether a will contested was or was not read to the testatrix and explained to her at the time of its execution, it appears uncontroverted that her mental condition was such as to leave no doubt of her capacity to make an intelligent and discreet disposition of her property, and it is in evidence that when the will was republished by the addition of codicils it was read and explained to her Daraeranh by paragraph, it is not error to direct a verdict for the defendants.
    3. Proof of Codicil Referring to and, Attached to Will Establishes Both as Will.
    When a codicil is attached to a will, which clearly and unmistakably refers to the will, so as to preclude all doubt as to its identity, the will and codicil are to be taken and construed together as parts of one and the same instrument, and proof of the codicil will establish the will.
    [Syllabus approved by the court.]

      Error.

      White, Johnson, Gannon & Neff and E. S. Meyer, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendants in error.

       Motion to certify record overruled, Morris v. Osborne, 61 Bull. 152.

   CARPENTER, J.

This action was brought in the common pleas court to contest the will of Dorothy Morris, executed June 17, 1909. It was drawn by her attorney, H. J. Caldwell, who for many years was one of the judges of the circuit court of this district. He is remembered by the judges of this court as. an unusually painstaking, careful and able jurist. He was named in the will as executor.

Shortly after his death the testatrix executed a codicil to her will in which she appointed the Guardian Savings & Trust Co. as executor. Subsequently she executed in succession three additional codicils dated respectively November 16,1910, February 28, 391.1, March 25, 1913.

The language of the will is remarkable for its simplicity and clearness of expression throughout. Indeed, one can scarcely perceive how it could be improved in any respect. As an example of this we quote this clause:, “What remains of my estate after taking therefrom my just debts, the foregoing legacies and said notes not to be accounted for, which I hereafter call the residue of my estate, I give and divide as follows-.”

The testimony is quite voluminous, but from it all we may extract:

1. That all the witnesses testify that the testatrix was of sound mind:

2. That she knew full well and appreciated the nature and extent of her property, and had in memory even the names and birthdays of her children as well as her grandchildren.

3. That she was an unusually methodical woman in all-her financial dealings. She kept - records of all her receipts and disbursements, and was insistent upon having an explanation of any financial matter or business transaction in which she was interested;

4. And that she had sufficient mental capacity to understand tbe nature and legal effect of the provisions of her will and codicils if they were explained to her.

In fact, .the foregoing appears to be admitted by counsel L’or plaintiff, but they claim that the will was neither read to her nor explained. And it will be noted that there is no positive evidence in the record that the will was read or not read and explained to her before its execution, except that the witnesses- to the will testified that they were called in by Judge Caldwell to witness the will, which had been prepared by him; and that during the time they were so occupied the will was neither read nor explained.

At the conclusion of the evidence, the court granted the motion ef the defendants to withdraw the case from the jury and direct the jury to return a verdict in their favor. This was done, and a verdict returned as directed.

The contention of the plaintiff is expressed in counsel’s brief as follows-.

“We have said probably Dorothy Morris possessed testamentary capacity, but granting that she did possess testamentary capacity, we contend, upon ample authority, that in addition to the possession of testamentary capacity it was necessary that Dorothy Morris should know what the will contained and knowing what the will contained, should understand it. Otherwise plainly it is not her will. Otherwise plainly her mind did not accompany the testamentary act.” But counsel, having admitted testamentary capacity of the testatrix, has fallen into a pit from which he can not extricate himself, by his own citation, of' authority, whieli he quotes from the following cases of Tomkins v. Tomkins, 1 Bailey’s Law 92 (S. C.) [19 Am. 656-659], and Den v. Johnson, 5 N. J. L. (2 South.) 455 [8 Am. Dec. 610-13 and 14], respectively:
“A will is defined to be the declaration of a mind, as to the manner in which he would have his estate disposed of after his death. The usual and almost the only mode in which assent to a writing is manifested, is by subscribing it; and, in the absence- of any other proof, that would be sufficient evidence of assent to a will, as well as to any written contract. This constitutes, indeed, the highest evidence; but it is not con-elusive. According to the definition, a will. ought to express the mind of the testator; and. that can not be his mind, or will, of which he is ignorant. The case of Billinghurst v. Vickers, 1 Phillim, 187, furnishes some of the rules by which we are to be governed in the inquiry as to the assent of the testator. In that case Sir John Nicholl lays it down as a principle well established, that where capacity is in any degree doubtful at the time of the execution, there must be proof of instructions or reading over.” Tomkins v. Tomkins, supra.
“If, upon the whole, the jury should be of the opinion that the mental powers of the testatrix were so far enfeebled and broken as that she' could not make a discreet disposition of her affairs herself, and that the will in question urns devised by other persons, and only assented to by her on being asked, without the power of understanding it, then they ought to find for the plaintiff.
“Again it was stated (in the charge to the jury) that though they, should find that the testatrix did possess her mind, in such a degree that she might have made a rational disposition of her affairs, yet if they should' be of the opinion from the whole evidence, that the will was written without any consultation with, or direction from her, and that from her great weakness and debility she ivas unable to read the same .as the plaintiff had alleged, then it was incumbent upon the defendant to prove that it had been fully read' or fully explained to her, for without that, though it might be her will in form, it could not be so in truth and fact.’’ Dem v. Johnson, supra.
“Where a 'will is not read by or to the testator, and it has been prepared by another person from instructions given by the testator, and is then signed oh an assurance that it expresses what he desires, if the language inserted is not the language of the instructions, and if it does not make in legal effect the provisions which the testator apparently desired, it is not his will.” Waite v. Frisbie, 45 Minn. 361 [47 N. W. 1069].

■ It is manifest that the plaintiff has not brought herself within the law as announced in these excerpts. • There is not only no évidence that “the testatrix was so far enfeebled and broken as that she could not make a discreet disposition of her. affairs, ’ ’ but the evidence is positive to the contrary. Neither is any evidence introduced that her capacity is somewhat doubtful. The presumption is that the will was prepared from instructions given by the testatrix and that it was drawn expressive of those instructions and was read to her and explained. Every lawyer knows from his own experience in drawing wills that the will is written from instructions given him by the testator, and invariably is read carefully to him before it is signed.

In the case of Sheer v. Sheer, 159 Ill. 591 [43 N. E. 334], the court in its opinion says:

“The rule of law is, ‘where the testator is shown to have executed an instrument, as his will, being in his right mind, and there is nothing of fraud or imposition, it will be presumed that he was aware of its contents. The general rule is, that proof of the testator’s signature to the will is prima, facie evidence of his having understanding^ executed the same. ’ ’

The third clause of the syllabus in that case is as follows:

“A will prepared at the request of a testator’, even under general directions and afterwards executed in the manner provided by law, should not be set aside on the ground that he did not understand what it contained, except upon clear and satisfactory proof of that fact.”

Section 12083 G-. C. provides that “on the trial of such issue the order of probate shall be prima fade evidence of the due attestation, execution and validity of the will or codicil.” The burden of proof is thereby east upon the contestant.

We are convinced that the plaintiff has utterly failed in producing even a scintilla of evidence tending to prove her case as the law requires. Such being the case, we are also clearly of the opinion that the court did not err in withdrawing the ease from the jury and instructing the jury to return a verdict for the defendants. It is so provided in Wagner v. Ziegler, 44 Ohio St. 59 [4 N. E. 705], the second clause of the syllabus of which is as follows:

“In the trial of the contest of a will, where the testimony introduced does not tend to prove the issue on the part of the plaintiffs showing incapacity of the decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of the plaintiff’s testimony, to direct the jury to find a verdict sustaining the will. ’ ’

Even though we are in error in so holding, yet we must remember there were four codicils to this will, and that Mrs, Osborne testified that a few months after her mother executed the will she read it to her mother, and they talked together about its provisions. When she came to the provision regarding Aunt Hannah Nicholas, her mother said: “Do!lie, I am very glad you think that I can give that to Aunt Hannah, because I always feel that she needed the money. She has worked hard.” And when she came to her nieces, Dollie and Mollie Price, her mother said: “I always tried to do all I could for my sister’s children.”

George F. Hart, who drew up the second codicil, testifies that he “read the will twice to the testatrix, item by item, and explained to her the items as I went through,” and that she seemed to comprehend the purport of the document.

John Fish, who was a witness to the last codicil, testified that he read the will and the codicil to the testatrix, and she asked him some questions on the will, and more particularly on the last codicil. She asked me the effect on the will and the previous codicil to which it referred.

It is the law of this state that a will and codicil are to bo taken and construed together as parts of one and the same instrument, and the intent of the testator gathered from the whole. Mack v. Bonner, 3 Ohio St. 366, 369; Black v. Webb, 20 Ohio St. 311.

It is also a general rule of the law that a properly executed codicil, which is attached to a will or which refers to it specifically acts as a republication of the will as of the date of the codicil, and the effect of republication is to make the will in legal effect a valid will as executed at the time of such republication and speaking as of such time. Page, Wills, Sees. 307 and 308.

“Also, when a codicil is written on the same piece of paper or a separate one, and clearly and unmistakably refers to the will so as to preclude all doubt as to its ideníéty, pttof of the codicil will establish the will.” Frye v. Morrison, 159 Ill. 244 [42 N. E. 774].

Inasmuch, therefore, as the will and the codicils became in legal effect, by republication, one instrument and one will dating from the time of the execution of the last codicil, plaintiff would Scarcely be allowed to claim, in face of the admitted evidence, that the testatrix did not understand the provisions of the will because they were not explained to her.

The decision of the court of common pleas is therefore affirmed.


author: VOORHEES, J.

text:
    RAILWAYS.
    [Holmes (5th) Circuit Court,
    April Term, 1911.]
    Voorhees, Shields and Powell, JJ.

      State ex rel. Simpson, Pros. Atty. v. Pennsylvania Co. et al.
    Statute Prohibiting Voluntary Relief Associations Construed to Apply Only to Intrastate Railways.
    Section 9010 G. C. prohibiting ’railway companies from maintaining relief associations for the benefit of employees wherein ., it is stipulated that those, who become members waive all right against the railway company to damages on account of personal injuries or death, should be so construed as to bring it . into harmony with both the state and federal constitutions, and so construed it applies only to such lines of road as are not engaged in ihterstate commerce.
    [Syllabus by the court.]

      D. T. Simpson and Frank S. Monneit, for plaintiff.

      George TV Sharp and Judge George F. Arrel, for defendant.

       Affirmed, no op., by the Supreme Court, State v. Pennsylvania Co. 88 Ohio State, 540.

   VOORHEES, J.

This ease is submitted on a general demurrer to each defense contained in the separate answer of the Pennsylvania Co. and the' Cleveland, A. & C. By. to the amended petition.

At a former term, this court held that the amended -petition was sufficient to resist a demurrer, in that it averred'that the defendants were maintaining a certain relief association, the rules and by-laws of which shall require of aiiy person or employee becoming a member thereof to enter into a contract, agreement or stipulation, directly or indirectly, whereby such person or employee shall stipulate to surrender or waive any right or claim, etc., contrary to the provisions of Sec. 3270 R. S., as amended by act 99 O. L. 71 (Sec. 9010 G. C.).

The first defense of the Pennsylvania Co. to this amended petition, while it admits that it is assisting in maintaining a voluntary relief association, contains a general denial of all the averments and allegations of the amended petition in respect to the character of the relief association it is maintaining and assisting in maintaining. So that the demurrer to this defense must be overruled.

The second defense sets forth in detail, the incorporation of the defendant, the Pennsylvania Co., under and by virtue of the laws of the state of Pennsylvania; that it is operating railroads as a common carrier through the states of Pennsylvania, Ohio, Indiana, and other states; also, that the Pennsylvania Lines west of Pittsburgh consist of certain companies who have become associated and are engaged as common carriers since-the year 1885, operating lines of railroads of the constituent companies; that it maintains and .has assisted in maintaining a voluntary relief association made up of employees of the constituent companies, and sets forth in terms the rules and regulations of the voluntary relief department with respect to waiving any right of damage in the event of injury, or death, ■

It then further avers that all its employees, including all members of the relief association so maintained by it, are employed with reference to conducting and forwarding interstate commerce and business and traffic, and such members are residents of the several states of Pennsylvania, Ohio, Indiana, Illinois, West Virginia and Kentucky. And that the amendment to Sec. 3270 R. S. (Sec. 9010 G.- C.), is in violation of Art. I, Sec. 8, of the U. S. constitution.

It will be seen by this averment of -the answer of the defendant which is admitted by the demurrer, that the employees and members of the relief association so maintained by it were and are engaged in hauling trains and cars in interstate commerce on the associate railroads constituting the constituent Companies of the Pennsylvania Lines west of Pittsburgh and their employees are engaged in interstate commerce business.

The congress of the United States, under the authority of the constitution to regulate commerce between the states, has undertaken to legislate in respect to this identical matter, and by See. 5 of the act of Congress of April 22, 1908, has defined the rights and liabilities of common carriers by railroads to certain of their employees as follows:

“Section Five. That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void; provided, that in any action brought against any such common carrier under, or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any, insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.”

In the case of Howard v. Railroad Co. 207 U. S. 463 [28 S. Ct. 141]. the court, in speaking of another act then under review, uses the following language:

“The act, then, being addressed to all common carriers engaged in interstate commerce, and imposing a liability upon them in favor of any of their employees, without qualification or restriction as to the business in which the carriers or their employees may be engaged at the time of the injury, of necessity includes subjects wholly outside of the power of Congress to regulate commerce.”

Now the amendment to See. 3270 R. S., as passed April 7, 1908 (Sec. 9010 Gr. C.), is general in its terms:

“No railroad company now existing, or hereafter created, under and by virtue of the laws of this state, or of any other state or country, a*A having ant! operating a line of railway in this state, may establish or maintain or assist in establishing or maintaining any relief association or society,” etc.

The presumption obtains that the legislature of the state in the enactment of this amendment intended to enact a law which was not in violation either of the constitution of the United States or of the state of Ohio.

If a statute is capable of such construction as will be constitutional, then it is the duty of the court to give it such construction in preference to a construction that would bring it within the prohibition of the Constitution. Construing then, this amendment, passed April 7, 1908, as being constitutional it would include only such lines of railroad as were not engaged in interstate commerce, and this answer averring that the defendant companies, and each of them, were and are engaged in interstate commerce, and that their employees and members of the voluntary relief association which they are .maintaining and assisting in maintaining are engaged in interstate commerce and traffic, the averments contained in the second defense of the defendant’s answer constitute a good defense to the amended petition. And, therefore, we hold that the demurrer to this second defense must be overruled.

The demurrer to the third defense of the answer of the Pennsylvania Co. is sustained.

What has been said in respect to the several defenses of the Pennsylvania Co. need not be repeated in respect to the answer of the Cleveland, A. & C. Ry. The demurrer to the. first defense is overruled. The demurrer to the-second defense is overruled. The demurrer to the third defense is sustained.' Exceptions on behalf of both parties herein may be entered and the plaintiff may be given sixty days to plead further herein if desired.

Shields and Powell, JJ., concur.