text:
    PLEADING WHERE NEGLIGENCE IS INVOLVED.
    [Circuit Court of Logan County.]
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. William P. Tehan, a Minor, Etc.
    Decided, February Term, 1904.

      Negligence — In Placing an Employe at New Work and Giving Him an Inexperienced Assistant — Pleading Establishing a Causal Connection with the Injury — Defective Averment Supplied by the EviNegative Propositions — Damages for Loss of an Eye. dence — Amendment Implied — Requests for Special Charges of

    1. Where the issue is not one of quantum of danger in the abstract, but is one of danger to the plaintiff, who in obedience to an order was injured while doing new work with the dangers of which he was not acquainted, the necessary causal connection is established in a petition embodying such facts in its allegations, and the petition is good against a general demurrer as a pleading of negligence.
    2. If the causal connection is established between the general negligence alleged and the injury, it is also established between the special acts of negligence alleged limiting the general allegation.
    3. The rule laid down in 49 O. S., 598, constitutes an exception to the general rule in this state that the duty to plead and the burden to prove contributory negligence is upon the defendant, and the exception should not be extended on mere suspicion to a case like the one at bar, which does not involve negligence in the matter of a defective appliance or an unsafe place to work.
    4. Every purpose of pleadings is accomplished, when it is apparent to the parties and the court at the time the trial begins, what the affirmative and negative averments are upon which the plaintiff relies for a recovery.
    5. Where a bill of exceptions showing all the evidence and proceedings at the trial is made by proper order a part of the record, and the evidence and proceedings sustain the recovery, an amendment to a defective pleading will be implied even on error; but if the evidence and proceedings do not sustain the recovery, the fact that an amendment was allowed and filed will not aid the verdict or judgment.
    6. A case is presented for the jury, where there is a conflict of evidence with testimony admitted without objection which supplies omitted material averments of the petition.

      1. Requests of the defendant for special charges to the jury, which set out a certain set of circumstances under which the plaintiff would not he entitled to recover, are satisfied hy clear and correct statements in the general charge of the material and necessary facts which must he established hy the plaintiff in order to recover.
    8. A verdict of $5,000 for the loss of an eye is not excessive where the one injured is a young man just entering upon a career as a mechanic.
    The original action was commenced in the court of common pleas by defendant in error as plaintiff against plaintiff in error as defendant. Said plaintiff stated in his petition in substance: That defendant, a railroad corporation, owns and operates extensive machine and repair shops in the city of Beliefontaihe; that on January 1, 1902, plaintiff was employed by defendant to work in said shops as a boilermaker’s helper, his duty being to help a boilermaker as an assistant, but not to perform a regular boilermaker’s work; on or about July 21, 1902, the foreman of said boilermakers’ shop ordered plaintiff to perform a regular boilermaker’s work; on July 22, 1902, while plaintiff was performing a boilermaker’s work under said orders, he was assisted by a young man, totally inexperienced in said work, as an assistant and helper; while plaintiff was so employed and with said inexperienced assistant, in cutting off the rivets of the connection of a boiler, plaintiff was holding a tool, called a side-set, on the head of a rivet and said assistant was striking said tool so as to remove the head of said rivet; said assistant struck said tool so carelessly and unskillfully that a piece of the head of said rivet struck plaintiff in the left eye, totally destroying the sight thereof" so that the said eye had to be removed.
    “Plaintiff avers that there was negligence on the part of defendant in the following particulars: 1. The plaintiff was young and inexperienced and did not know the danger he incurred by obeying the orders of said foreman in performing a regular boilermaker’s work, instead of continuing in his regular employment as a boilermaker’s helper and assistant. Defendant was guilty of negligence in ordering plaintiff, with his inexperience, to engage in and perform the duty of a regular boilermaker and in taking him from his position and work as a boilermaker’s assistant and helper. 2. Said defendant was also guilty of carelessness and negligence in placing said inexperienced young man to work with him- as an assistant. He avers that his injury and the loss of his left eye was caused solely by the carelessness and negligence of the defendant. He also avers that he, plaintiff, was not guilty of any carelessness or negligence and that he was without fault on his part. He prays judgment in the sum of $10,000.”
    To this petition defendant filed a general demurrer and the same was overruled. Defendant thereupon filed its answer, in the first defense of which it denied each and every allegation in the petition of unskillfulness and inexperience on the part of the plaintiff and said assistant at the time of the injury and all allegations of carelessness or negligence on the part of defendant. For a further defense said defendant avers that after plaintiff had been in the employment of defendant as a boilermaker’s helper and as an apprentice or learner for more than six months continuously at low wages, he represented and stated to defendant’s foreman that he, plaintiff, had acquired sufficient knowledge and skill in the business to entitle him to an advanced position and at advanced wages and that he had sufficient knowledge and skill to manage and conduct the cutting of rivets in which he was engaged at the time of the injury and in the manner in which he was so engaged. Defendant states that in fact said branch of the business is one of which sufficient knowledge and skill to conduct it safely can be acquired by any one and especially by one of plaintiff’s mechanical aptitude in a few days or even a few hours. That defendant’s foreman, upon diligent and careful inquiry, believing plaintiff’s said statements to be true, expressly employed plaintiff to do this work he was doing at the time of his injury, paying him therefor increased wages. Defendant denies plaintiff’s alleged want of skill and his alleged want of knowledge or information of the dangers and perils incident to and connected with his employment at the time of said injury. Defendant denies the want of knowledge, skill and experience on the part of the person who was helping plaintiff at the time of said injury and through whose alleged negligence plaintiff asserts the injury was caused in part. Defendant avers that said assistant was sufficiently skillful in that line of employment and was of sufficient experience in the use of sledge hammers and such like tools to be employed by defendant to perform the service in which he was engaged at the time of said injury and that before the employment of said assistant by defendant said defendant made diligent and careful inquiry as to said assistant’s knowledge* skill and experience in the use of said tools, and from the knowledge and information acquired by defendant on such inquiry defendant believed and had the right to believe that said assistant then possessed such sufficient skill, knowledge and experience. Defendant further avers that said assistant was, at and before the time of the injury, an acquaintance of and well known to plaintiff. It is further averred that plaintiff’s injury occurred “through one of those unavoidable accidents possible to occur in any mechanical trade or business, when conducted by the most skillful, which can neither be foreseen nor guarded against by any care or diligence. Plaintiff by reply denies each and every allegation of the second defense of the answer.
    Upon issues thus joined the trial was had to a jury, certain evidence referred to in the opinion was given by plaintiff without objection, the court charged the jury as is stated hereafter and a general verdict returned for plaintiff in the sum of $5,000. Defendant filed its motion for a new trial, one ground of which was that the verdict is against and not supported by sufficient evidence. Pending this motion and before judgment was entered on the verdict, plaintiff, against the'objection and over the exception of defendant, obtained leave to file an amended petition to conform his pleading to the facts' proved. An amended petition was accordingly filed and defendant, without waiving his objection to such filing, obtained leave to file and thereupon filed an amended answer. To this amended answer plaintiff filed a reply. Defendant’s motion for a new trial was thereafter overruled and judgment for plaintiff was entered on the verdict. The errors assigned are, in substance, in overruling defendant’s demurrer to the petition; in refusing requests to charge; in the charge as given to the jury; in permitting plaintiff to file his amended petition; that the verdict is not supported by sufficient evidence; that neither the petition, or the amended petition states facts sufficient to constitute a cause of action, and the judgment is therefore contrary to law.
    Mooney, J.; Day, J.. and Norris, J., concur.
   The asserted defects in the original petition are these: Failure to state that the work at which plaintiff was engaged at the time of the injury was dangerous and more dangerous than plaintiff, as alleged, was employed to perform; failure to state that the helper assisting in the work at said time was incompetent and that defendant knew it was negligent in not knowing it and that plaintiff did not know it; and failure to allege a causal connection between the alleged acts of negligence and the injury to plaintiff.

It is not expressly alleged that the work was dangerous. It is stated that plaintiff in obeying orders and directions of the foreman at the time did not know the dangers that would attend his act of obedience, and that while performing such service he was injured without fault or negligence on his part. If these averments stood alone, no account being taken of any charge of negligence against defendant, we think the inference would arise from the facts stated, that the work was dangerous It is not stated that the work was more dangerous in the abstract than the work was that plaintiff alleges he was employed to perform. It is believed that the question is not one of quantum, of danger in the abstract, but is one of danger to the plaintiff. It is alleged in the petition that plaintiff had been employed as a helper continuously for more than six months. It is not alleged that the work of the helper is in any degree dangerous to the helper himself. Unless we infer that such work is dangerous to the helper himself, it follows that if the work plaintiff was doing at the time of the injury was dangerous it was also more dangerous than the work of the helper. Again, if plaintiff worked as helper for six months it must be assumed that he knew the dangers incident to his work as helper. He alleges that he did not know the dangers of the work he was directed to do and was doing at the time of the injury. It was more dangerous to him to do work with the dangers of which he was not acquainted than to do work with the dangers of which he was acquainted. Plence while not stated, it may be inferred that the work he was doing was more dangerous to him than the work he was employed to do and the ordinary risks of which he agreed to assume (Consolidated Coal Co. v. Hoenni, 146 Ill., 614; Cincinnati, etc., R. Co. v. Lang, 118 Ind., 579; Pittsburg, etc., R. Co. v. Adams, 105 Ind., 151; Chicago, etc., R. Co. v. Bayfield, 37 Mich., 210). It is not directly alleged that plaintiff was injured through or because of the particular acts of negligence of defendant charged in the petition. It is, however, alleged that plaintiff without fault on his part was injured through the negligence of defendant and that defendant was negligent in the following particulars: (Specifying them). It is also expressly stated that plaintiff having been employed to do certain work, was ordered to do other work with the dangers of which he was not acquainted and that while, in obedience to such order, he was doing the new work he was injured. We think this latter establishes the causal connection and besides was sufficient as against a general demurrer as a pleading of negligence (Davis v. Guarnieri, 45 O. S., 470), and besides we are also of opinion that while negligence is thus generally alleged, the general allegation would on demurer be limited by the particular specifications of negligence that are pleaded and those that are implied from them. In this view if the causal connection is established between the general negligence alleged and the injury it is also established so between the special acts of negligence alleged limiting the general allegation.

It is not expressly averred that the assistant, Ivory, was incompetent. It is averred that defendant was negligent in ordering plaintiff to do this work in connection with William H. Ivory, a totally inexperienced young man, as a helper. The allegation is in substance that defendant was negligent in ordering plaintiff to do the work under the circumstances disclosed and with an inexperienced assistant. Ivory may have been not incompetent to do the work but yet being without experience it may have been an act of negligence to send him to assist plaintiff under the circumstances then existing.

“The allegation in a pleading that the party complained against negligently committed the particular act which led to the injury whose redress is sought furnishes the predicate for the proof of all such incidental facts and circumstances both of omission and commission, as fairly tend to establish the negligence of the primary fact complained of” (Davis v. Guarnieri, 45 O. S., 470).

See particularly Golley & Finley Iron Works v. Collan, 9 C. C., 217—a case resembling this one on the facts. If it furnishes such predicate the general allegation is good against a general demurrer and at all events, in the absence of a motion to make definite and certain, is sufficient.

While it is very apparent that the petition is threadbare in spots still it is very doubtful whether the court below was not right in overruling the demurrer to that pleading. At the very least we think that every fact necessary to constitute a cause of action can be inferred from the facts expressly stated.

Certain other alleged defects in the petition are insisted to be fatal under the rule announced in the ease of Coal & Car Co. v. Norman, 49 O. S., 598. That case announces a rule which constitutes an exception to the general rule in this state that the duty to plead and the burden to prove contributory negligence is upon the defendant. The general rule in this state still being recognized, the exception should not be extended upon mere suspicion. This ease is not one of defective appliance or unsafe place and negligence charged in connection therewith and hence the case referred to does not apply. 'If it did, Ivory was employed by defendant two days before; defendant then had an opportunity and a duty to know what his qualifications were; plaintiff denies knowledge of the dangers and if those arose from the inexperience of the helper, then the denial goes to the effect of the inexperience of Ivory; defendant had conducted the shop for years and so is presumed to know what the fitness of Ivory was as well as the effect of his inexperience; so that from the facts stated, the facts required to appear by the rule laid down in the ease cited may be inferred.

We have thus far proceeded upon the theory that if the demurrer to the petition were improperly overruled the error should reverse the judgment. There are exceptions to this rule and we proceed to inquire whether the ease at bar is not within one or two of them.

The demurrer having been overruled defendant by leave filed its answer. Plaintiff had pleaded that his injury was due to defendant’s negligence and arose from a risk not assumed by him. The first defense of the answer denied the negligence and also denied that the risk was not assumed. Under this pleading of the first defense all the evidence given at the trial would have been proper. But defendant by its second defense alleged that the work was not dangerous; that all risk of injury therefrom was open and apparent to plaintiff as to defendant’s foreman or any other of its agents or servants; that plaintiff in a few days or even a few hours could acquire the knowledge and skill to perform said work safely and skillfully; that Ivory had sufficient knowledge, skill and experience to perform his part of the work properly, and before defendant employed said Ivory it made diligent inquiry and ascertained therefrom that he had such knowledge, skill and experience and defendant then believed and had good reason to believe such fact and that said Ivory was an acquaintance of and well known to plaintiff. It is further stated that the injury to plaintiff was due to an accident unavoidable in any mechanical trade, even when conducted by the most skillful. The plaintiff by reply denied these allegations.

It will not be contended that if the negative averments made up by the denial of these allegations of the second defense were inserted in the petition, the alleged defect would not exist. It is conceded by this second defense that the injury resulted from doing the work — hence the causal connection; that the injury or the possibility of it necessarily attends the work — hence it is dangerous; that defendant did inquire and know the fitness of Ivory to do the work and it is not alleged that plaintiff had made such inquiry or had such knowledge. Defendant denies acquaintance with Ivory and thus, taking the admission by the defendant and the denial by plaintiff together, it follows that the servant did not have equal means of knowing with the master. At all events taking all the pleadings together as they stood when the trial .commenced it was perfectly patent to the parties and the court what the affirmative and negative averments upon which the plaintiff relied for a recovery in the action were. Thus every .purpose of pleadings was accomplished.

‘ ‘ Where a material fact is omitted in a declaration the defect is cured if the subsequent pleadings put the omitted fact directly in issue.” Elliott v. Stuart, 15 Me., 190; Fiebelman v. Ins. Co., 108, Ala., 180; Gaines v. Summers, 39 Ark., 482; Worthley’s Admr. v. Hammond, 70 Ky., 510; L. & N. R. R. Co. v. Lawson, 88 Ky., 496; Ritchie v. Ege, 58 Minn., 291; Wagner v. Mo. Pac. Ry. Co., 97 Mo., 512; Allen v. Choteau, 102 Mo., 309; Hamilton v. St. Ry. Co., 17 Mont., 334; The Nancy v. Fitzpatrick, 3 Gaines (N. Y.), 38; Knowles v. Norfolk Southern Ry. Co., 102 N. C., 59; Cowel v. South Denver Real Estate Co. (Col.), 63 Pac., 991; Savings Bank v. Barrett (Cal.), 58 Pac., 914. In this case a demurrer to the complaint was improperly overruled, yet it was held that the express denial of the omitted fact by the answer supplied the defect. Fleuce v. Feru, 60 Pac., 434; Beebe v. Latimer (Neb.), 80 N. W., 904. Londerman v. Judy, 2 C. C., 351, reversed on other ground, 48 O. S., 562.

In Yocum v. Allen, 58 O. S., 280, it was held that where a demurrer was improperly overruled to a petition a judgment thereon for plaintiff should not be reversed if it appears from the whole record that the overruling of the demurrer was an error which was not prejudicial to the adverse party. In that case the court quotes and enforces the provisions of Section 5115, Revised Statutes.

“The court in every stage of an action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights. of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”

In harmony with this statute and upon the very reasoning of the case last cited it must be here held that the error, if any, in overruling the demurrer was not prejudicial to plaintiff in error.

Again:

“Where an averment which is necessary for the support of the pleadings is imperfectly stated, and the verdict on an issue involving that averment is found, if it appears to the court after verdict that the verdict could not have been found on this issue without proof of this averment, then after verdict the defective averment which might have been had on demurrer is cured by the verdict.” Heymann v. The Queen, 12 Cox C. C., 383. And see Gittings v. Baker, 2 O. S., 21; Howe v. Ry. Co., 18 C. C., 600; Davey v. Miller, 37 W. L. B., 203; Gould on Pleading, 5th Edition, 558.

For a stronger reason this should be the law if without objection at the trial evidence is admitted to prove the allegation omitted or defectively stated. It has been held repeatedly in this state that where in the absence of a denial the allegations of a pleading are at the trial treated as denied a verdict and judgment rendered on that theory will not be disturbed for want of such denial. If this rule obtains in the absence of the usual pleading why should it not obtain in the case of a defective pleading as well.

We are of opinion that for the reasons stated and upon the proceedings had at the trial hereafter referred to, the question of the defect, if any, in the original petition is not now available to plaintiff in error as a ground to reverse the judgment and so the error, if any, in permitting the amended petition to be filed after verdict rendered, is also immaterial. Where the record of a particular case consists solely and alone of the pleadings, rulings thereon, record of the fact of a trial, verdict and judgment, and the petition is wanting in a material averment, it may be necessary to show an amendment to the petition to support a judgment thereon. But where, as here, a bill of exceptions showing all the evidence and proceedings at the trial is made by proper order a part of the record such amendment will rarely, if ever, be necessary, for in such case if the evidence and proceedings sustains the recovery an amendment will be implied even on error; but if the evidence and proceedings do not sustain the recovery, the fact that an amendment was allowed and filed will not aid the verdict or judgment.

The bill of exceptions, a part of the record, shows that at the trial and without objection plaintiff below offered evidence tending to prove that on December 29th, 1900, plaintiff, then seventeen and one-half years old, entered the service of defendant at said shops as a rivet heater, his duties being to heat rivets, pass rivets and do other odd jobs around the shops, such as holding lights for boilermakers; he continued in this employment until about January 1, 1902, when he was advanced to the position of helper by the general foreman of the shop; the duty of a helper is to assist the boilermaker in whatever the latter has to do, but “he is not supposed to learn the trade at all.” Plaintiff continued in the position of helper until July 21, 1902, when he was ordered by defendant’s foreman to hold a side-set, which is a part of a regular boilermaker’s work. He had never before performed that kind of labor, had no knowledge of its danger and neither defendant or any of its agents or servants nor any one else gave him any instructions as to how the work should be done, and no one informed him as to the danger incident to that kind of work. The side-set is a tool used in cutting the heads off boiler rivets when it is desired to remove the rivets from a boiler. The side-set is something the shape of a long bitted hammer, one edge of which is beveled something like a cold chisel and the other end shaped like the poll of the ordinary hammer. The side-set is fitted with a wooden handle about two and one-half feet long. When in- use the cutting edge of the side-set is held against a rivet by the boilermaker and the helper with a sledge hammer strikes the poll of the side-set and then the head of the rivet is partly cut and partly broken off, when the rest of the rivet is driven through into the inside of the boiler and the rivet thus removed. The purpose of the side-set handle is to enable, the boilermaker to stand at a point where he will not be in danger of being struck by the helper’s sledge.

On July 21, 1902, plaintiff, with Ivory as. his helper, worked eight hours in removing rivets from a boiler, and in that time they removed all the rivets on one side of a boiler. On July 22, 1902, they continued the work on the other side of the boiler from the time of commencing work until 8 o ’clock in the morning. They were then ordered to and did perform some other work until nine o’clock, when they returned to the work of removing rivets. While removing the fourth rivet after their return, the injury of which plaintiff complains was sustained by him. At this time Ivory’s hands were sore and he was striking quite rapidly, and sometimes would hit the head of the side-set squarely, sometimes on the edges, and sometimes missed it altogether. The proper and safe manner, as plaintiff says he has since learned, for Ivory tO' strike was slowly and squarely on the head of the side-set. When the head of the fourth rivet was nearly off, a sliver of it flew off and struck plaintiff in the eye, destroying his sight and so injuring the organ that it had to be removed. Plaintiff never requested that he be put at this work. As a rivet heater plaintiff was paid eight cents per hour, as a helper fourteen and a half cents per hour until the middle of 'July, 1902, and after that plaintiff and all other helpers were paid fifteen cents per hour; boilermakers were then paid twenty-four to twenty-six cents per hour. The work of removing rivets in the manner above described is dangerous to the person holding the side-set. The danger consists in the fact that when the head of the rivet is being removed it or a part of it may fly in any direction and hit said person. To obviate this danger as far as possible skill is required on the part of the person wielding the sledge, to know with what force to strike when the head is nearly off; skill is also required on the part of the person holding the side-set to know the proper position — the angle at which the tool should be held. And with this skill on the part of both these persons the safety of the person holding the side-set requires that he hold a screen — a broom or cloth or some such article between him and the rivet to guard his person. Plaintiff when directed to do this work did not know and was not informed as to the position in which to hold the side-set, did not know and was not informed as to the necessity of a shield, and although while employed in the shop he had noticed persons using the side-set, he had never observed the same closely or more than casually. Ivory had never performed or assisted in this work before July* 21, 1902; he had no knowledge of its dangers; his ability to wield the sledge, so> far as skill is concerned, is such as he* derived from driving spikes in railroad ties in railway repairs or construction, and this fact defendant knew and plaintiff did not know. Said Ivory was for six years an employe of defendant as a section hand, but whether immediately before his employment in the shops does not appear from the evidence. The want of skill of plaintiff, of Ivory, and the absence of a shield may each and all have contributed to cause the injury. Assuming that there was a conflict of evidence upon all these points and assuming that the evidence admitted without objection supplied omitted material averments of the petition, we are of opinion that the case so made was and is one for the jury.

Defendant below presented eleven special requests to charge. These were all in terms refused. Most'of them set out a certain set of circumstances under which the plaintiff would not be entitled to recover. The court, and we think very wisely and properly, contended itself with a statement of the facts that if proved would authorize a recovery, and stated in effect that if these necessary facts were not proved the verdict should be for defendant. The charge is clear, concise and correct. The jury by reason of its clearness could understand it; of its conciseness could have remembered it, and of its correctness could not have been misled as to the law. The benefit of the special requests so far as they are correct was secured to defendant by the general direction of the court to find for defendant if the material and necessary facts upon which plaintiff’s right to recover depended were not each and all of them proven.

The point upon which we have had some hesitation was the amount of the damages. But we discover that this is not stated as a ground of the motion for a new trial nor specially assigned as error here. This young man has been deprived of one eye by a violent injury. It is common knowledge that the sight of the other may thereby be impaired or lost. He was entering upon a career as a mechanic for which he had some aptitude. He may be compelled to follow other lines, or, if he continue in the same line, will or may be less efficient and will run a double hazard of total loss of sight in its pursuit. We conclude that all these facts were as well known to the jury and the trial judge as to us and that, in fixing the damages under the circumstances of this case, they had assurance of arriving at a correct result equal in every respect to us, and so, particularly when not requested, we will not hold that the damages are excessive.

We find no reversible error in the record and so the judgment is affirmed at costs of plaintiff in error. Judgment for costs and execution awarded and cause remanded to the common pleas for execution.

West & West and Samuel H. West, for plaintiff in error.

John A. Price and Thos. M. Shea, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    PROMISSORY NOTE—CONSIDERATION-DELIVERY.
    [Circuit Court of Hamilton County.]
    Augusta J. Bode v. Louis Werner.
    Decided, February 24, 1904.

      Note — Consideration for Promise to Pay — Detriment to the Promisee May Constitute Consideration — Delivery—Pleading—Answer— Reply.

    1. An answer to a petition in the short form on a promissory note, which denies that “there is any sum due the plaintiff from her as endorser,” and that she did not deliver the note to the plaintiff or cause it to be delivered to him, does not set up new affirmative matter making a reply necessary.
    2. The putting of a promissory note in evidence makes a prima facie case, and casts the burden upon the defendant; and where -no testimony is offered by the defendant, a verdict and) judgment on the note must be affirmed.
    Jelke, J.; Giffen, P. J., and Swing, J., concur.
   Louis Werner, plaintiff below, sued Augusta J. Bode as endorser, by filing the usual short form petition on a promissory note, to which the following answer was made:

“And now comes the defendant and for answer to the plaintiff’s petition says that she denies that there is due the plaintiff from her as endorser the sum of $1,000 with interest, or any other sum.
“Defendant further says that she did not deliver said note to said plaintiff, and did not cause the same to be delivered to him, and that he did not pay to her any consideration for the same.
“Wherefore, she prays that said plaintiff be ordered to deliver said note to her and for all other and proper relief. ’ ’

To this answer no reply was filed.

On the trial plaintiff offered the note and counsel for Augusta J. Bode objected to the offering of any testimony on the ground that the issue was not closed by a reply. The objection was overruled, and exception noted, whereupon both sides rested and the court directed the jury to bring in a verdict for the plaintiff.

Goebel & Bettinger, for plaintiff in error.

W. A. Hicks, G. W. Hengst, contra.

We are of opinion that the above answer does not set up new affirmative matter, making a reply necessary.

On the subject of consideration the answer is insufficient.

“An answer to a suit on a proimssory note, averring that there was no consideration for it, moving to the promisor, is not sufficient as a defense, as it does not preclude the possible fact that there was detriment or loss to the promisee, which constitutes a consideration for a promise as well as a benefit to the promisor. Dalrymple, Administrator v. Wyker, Administrator, 60 O. S., 108.

It is likewise insufficient on the subject of delivery.

“Delivery need not be specially averred in the declaration upon a note or bill. The word ‘promised’ or ‘made’ sufficiently implies delivery in pleading. Delivery, is in general, presumed from possession of the bill or note.” Section 217 Randolph on Commercial Paper.
‘ ‘ If the maker of a negotiable promissory note does not find it in the hands of the payee, when it falls due, he should presume, as the law presumes, that it has been transferred, and pay it when and where he finds it. Poland, J.” Griswold v. Davis, 31 Vermont, 390.

Also see last sentence of Section 3171o of the New Negotiable Instrument Code:

“And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved,” which as a statute has no application to this ease but is a statement of the common law incorporated into the code.

Giving this answer its greatest merit it must be looked at as a general denial of the essential averments of the petition and as such not requiring a reply.

The note made out a prima facie case and put the burden on the defendant below, who offered no testimony, and hence the verdict and judgment upon the same were right and will be affirmed.


author: Per Curiam.

text:
    FIXTURES.
    [Circuit Court of Hamilton County.
    George W. C. Johnston v. Samuel Wooding.
    Decided, December 23, 1902.

      Fixtures — Uncertainty Regarding, to be Resolved in Favor of the Landlord, When.

    Doubt as to whether certain articles are fixtures is resolved in favor of the landlord, where the articles are not removed within the term of the tenancy or within a reasonable period thereafter.
    The plaintiff leased to R. M. Quigley & Co. certain real estate near the new Cincinnati water-works for a period of two years. Without plaintiff’s consent, Quigley & Co. constructed upon the premises a six-inch driven well, of the depth of 150 feet, fitted with casings, tubes, pipes and a force pump, which was operated by a vertical boiler resting upon stones which lay over the surface of the ground, all for the purpose of forcing water from the well through iron pipes diagonally across the premises, a distance of 1,200 feet. A building standing on posts and of small value, was erected over the boiler for protection. Quigley & Co. gave a chattel mortgage on all their property situated on the premises, which wás foreclosed, and the pump, boiler, casing, pipes, etc., were sold without notice to the lessor. Subsequently the lessor released the premises to a third party, and thereafter the defendant attempted to remove the pump, boiler, etc., when the present suit was brought to enjoin such removal. In the common pleas a perpetual injunction was granted.

      D. H Pottenger and A. C. Shattuck, for plaintiff.

      H. J. Appling, contra.
   Per Curiam.

"Whatever of doubt there may be as to the nature of things in dispute herein, whether or not they are fixtures, is resolved in favor of the landlord by reason of the fact that they were not removed during the term of tenancy or within a reasonable time thereafter.

Decree for plaintiff.


text:
    WILLS.
    [Circuit Court of Lucas County.]
    Amedius M. Coghlin et al v. John T. Coghlin et al.
    Decided, January 25, 1904.

      The Inhibition as to Joint Wills — Separate Wills of Husband and Wife — Devising Separate Property — Not Joint Because the Disposition Made of Property is Identical.

    1. Husband and wife may make the same testamentary disposition of tbeir property, so that their respective estates may take the same course and be distributed in the same way after death; and where each by separate will undertakes to create the same trust in their respective estates for a certain number of years, the validity of the trust so created by the husband is not affected by, nor will it be terminated by reason of the invalidity of the wife’s will, which is invalid on account of its defective execution, the wife dying before the husband and probate of her will being refused.
    2. A joint will is not created by the execution of separate and distinct wills at different times, and the making of separate and distinct codicils to such wills at the same time by husband and wife, wherein disposition is made of the separate property and estate of each (it not appearing that the wills were in the nature of a compact), notwithstanding the will of each refers to the will and to the property and estate of the other, and that the disposition in both is practically identical.
    Hull, J.; Haynes, J., and Parker, J., concur.
   This action was brought in the court of common pleas to set aside certain portions of the will of Dennis Coghlin, especially the part of the will creating a trust and putting all of his real estate in trust for a certain period of time, and to partition such real estate among his legal heirs. The action was brought by certain of the legal heirs of Dennis Coghlin, making all of the other heirs and their representatives defendants, and also The Ohio Savings Bank & Trust Company, defendant, as administrator with the will annexed, the bank acting as administrator with the executor, John T. Coghlin, who is named in the will as such executor. A demurrer to the petition was filed in the court below by the bank, the administrator with the will annexed, and that demurrer was sustained by the court of common pleas, and the plaintiffs, not desiring to plead further, judgment was entered in favor of the defendants dismissing the petition. Thereupon the case was appealed to this court and was argued here upon the demurrer to the petition.

The claim made by the plaintiffs, in substance, is: That about the same time that Mr. Coghlin made his will — about a year later — Mrs. Coghlin made a will, which is in effect a counterpart or duplicate of the will of Dennis Coghlin, for the disposition of her estate, and subsequently, in June, 1896, a codicil was added to each of these wills, these codicils being identical with each other except so far as it was necessary to change them to make them applicable to the wills and property of these two persons, and the claim is that the result is, in effect, a joint will — an attempt to dispose of the estates of Dennis Coghlin and of Ella Coghlin as one estate — as a joint fund and joint property, and that although they are written separately and executed separately, the effect is, it is claimed, the same as though they had been written upon the same paper and executed and attested together, and that they, therefore, fall within the inhibition of the law of this state as laid down by the Supreme Court against joint wills, and that this objection is especially applicable to the trust which is created for the disposition of the property named in these two wills, and was to continue before final distribution was made until the year 1910.

It is claimed by counsel for the demurrer that the two wills do not constitute a joint will, and that under the law of this state, as announced by the Supreme Court in the more recent decisions at least, there is no legal objection to these dispositions of this property and that, therefore, the demurrer to the petition should be sustained.

The petition. discloses that Mr. Coghlin’s will was made in the year 1893, and Mrs. Coghlin’s will was made in the following year, and in June, 1896/ a codicil to each will was made and executed. Mrs. Coghlin died May 6, 1900, three months before her husband’s death — which occurred August 6,1900 — he having survived her about three months. Upon her death (presumably immediately upon her death), as stated in the petition, her will was offered for probate; but probate was refused, on the ground that it had not been properly attested, so that the paper writing signed and executed by her never in fact took effect as a testamentary disposition of her property, and her property was disposed of according to the laws of descent and distribution, and when Dennis Coghlin died, on the 6th of August, 1900, there was no legal will of his wife in existence. The estate comprised both real and personal property, the estate of each being large, the personal estate of Mr. Coghlin amounting to about $300,000, and his real estate to something over $600,-000, making over $900,000 in all. The personal property of Mrs. Coghlin amounted to about $33,000 and her real estate to about $700,000. Mr. Coghlin in his will, after giving to his wife the household property about the homestead which belonged to her, disposed of all his property through the trust to which I have referred. It provided .that all of the property, real and personal, should be held in trust by his executors until the year 1910, if both he and his wife were dead at that time, and if either survived later than that then the trust was to continue until the survivor died. The will also provided that the executor should give to Mrs. Coghlin whatever was necessary to her support, if she needed anything in addition to her own estate during this period. At the expiration of the trust the property was to be divided among the children of Mr. and Mrs. Coghlin. per stirpes, the children of any child dead to receive the same share that the child would have received had it been living, and was thus to be divided among the children and grandchildren, if any of the children of Mr. and Mrs. Coghlin died.

In the codicil, to which reference has been made — which was executed on the 17th of June, 1896, the provisions as to the trust were altered in some respects. It was provided in the codicil that instead of a division being made by the executors, as provided under the will, that the division of the estate should be made at the expiration of the trust by three “friends,” as they were called, of Mr. Coghlin, John S. Kountz, Charles F. Adams and Lawrence Newman, if they should be living, and in case any one of them was dead the probate court should appoint a man to serve. They were to report their division of the estate and that should be binding upon the executors, who should make the division according to the report of these three persons. The codicil provided further that in the final distribution of his estate they should take into consideration the estate of his wife, Ella Coghlin, and the amount which each of the beneficiaries received from her estate, and the two estates were to be treated as one estate and the property divided so that the division would be equal among the various beneficiaries, taking into consideration the property which they got from the estate of their mother, Mrs. Coghlin. The codicil to the will of Mrs. Coghlin executed upon the same date, made the same provision as to her estate. In the will of Mrs. Coghlin there was the same provision in regard to a trust — after making certain special bequests and devisees — the same provisions as those contained in the will of Mr. Coghlin, providing that the property be retained in trust until 1910 and the codicil provided in terms identical with those made by her hsuband in his codicil, that what her children received from the estate of her husband was to be taken into consideration and the two estates' were to be treated as one estate. With these two wills thus made and executed and the codicils thereto, Mrs. Coghlin died three months before her husband, and her will, with the codicil, was tendered for probate and probate was refused, and it never went into effect and never'had any legal existence as a will.

It is claimed that considering the two wills together, they must be regarded as a joint will and the will of Mr. Coghlin must be regarded as a part of the testamentary disposition of the property under a joint will, and that a trust so created is invalid.

It was held in 14 O. S., 157 (Walker v. Walker):

“A joint will is unknown to the testamentary law of this state, and is inconsistent with the policy of its legislation. And where a husband and wife, each being the separate owner of property, join in the execution of an instrument in the form of a will, and treating the separate property of each as a joint fund, bequeathed legacies and devised lands to divers persons, the same can not be admitted to probate as the joint will of both parties, nor as the separate will of either.
“Although some of the provisions contained in the body of such will may be, in form and effect, several, yet inasmuch as the provisions of such will partake of the nature of a compact, in which such provision is influenced by all the rest, all the provisions of the will must stand or fall together.”

The will of these two parties, Mr. Walker and his w'ife, was jointly executed and attested and undertook to make a joint disposition of their property, some of their property being joint property and some owned in severalty. The Supreme Court held that this could not be done. The court say, on page 166 of the opinion:

“And the case is one in which two parties, husband and wife, attempt to make a will, which is not joint in form merely, and capable only of a several operation and effect; but one which is joint in substance; ivhere the parties to it are severally owners of property in their individual right; where they attempt jointly to dispose of the property of each and to treat it as a joint fund, jointly devising the real property of the wife, and jointly bequeathing legacies out of the personalty of both, without designating the proportion in which the personalty of each or either shall contribute for their payment; and from which it is evident that the provisions of the instrument must have been a matter of negotiation between the parties, and in which the disposition which each of the parties would be willing to make of his or her property would, of course, be influenced and modified by the dispositions which would affect the property of the other. In short, if there can be such a thing as a joint will, this is a joint will.”

After Mrs. Walker’s death, Mr. Walker, disregarding this will, disposed of some of the property, thus indicating, so far as that property was concerned, his intention not to abide by this will. The great objection that is made to joint wills by the courts, so far as I can discover, is — especially where property held in severalty is undertaken to be disposed of by two or more —that such a will is irrevocable by either without the consent of the other, and this, the courts say, is foreign and contrary to the very essence of a testamentary disposition of property. It is said a will, to be valid, must always be the last will of the person, it is called his “last will and testament,” and that a testamentary disposition of property which so binds a man to stand irrevocably by it, takes away from him the power to revoke it or alter it in any respect and can not be upheld as a testamentary disposition of property; that the nature of a will, some of the authorities say, is always, and must be ambulatory-following the changing moods and likes and dislikes of the author of the will who becomes the testator at death. It is said changes may occur, children may die, or become unfilial, or a son may become crippled, as one case says, and the testator must be left free to change and alter a disposition that he has made of his property by will, and that a document which is of such a nature as to take unto itself the character of a compact, which is irrevocable by either party without the consent of the other, can not be sustained. That is the doctrine of this case and the doctrine of some other eases. The weight of authority, however, is that joint wills, if they are not changed or revoked during the life of either — each abiding by the will — will be sustained, although the will is executed and attested jointly in one paper, and in a case in 39 O. S., 639 (Betts v. Harper), the doctrine of Walker v. Walker, 14 O. S., 157, is somewhat limited. The Supreme Court say in this case, in the syllabus:

“Tenants in common of real estate who are also owners, severally, of personal property, may dispose of the same by will, by uniting in a single instrument, where the bequests are sever-able and the instrument is not in the nature of a compact, but is, in effect, the will of each, revokable by him, and subject to probate as such several will; and where the instrument is not offered for probate until the death of all executing it, the same may then be admitted to probate as the will of each and all such persons. Walker v. Walker, 14 O. S., 157, limited.”

This will which was sustained by the Supreme Court is in one short paragraph:

“We, Agnes Harper and Penrose Harper, of the county of Hocking and state of Ohio, do make and publish this our last, will and testament, in manner and form following, that is to say: First, it is our will that our funeral expenses and all our just debts be first fully paid; secondly, that all of our property, both real and personal, go to James Betts and John Drue Betts and their heirs forever; lastly, we hereby constitute and appoint James Betts to be executor of this our last will and testament, revoking and annulling all former wills by us made, and ratifying and confirming this, and no other, to be our last will and testament. ’ ’

The court say, on page 641 of the opinion, delivered by Judge Okey, referring to the Walker case:

“The case before us is unlike Walker v. Walker. Agnes Harper and Penrose Harper were each the owner of personal property, and they were owners, as tenants in common, of real estate. Each desired to bequeath her personal property to James Betts and John D. Betts, and each desired to devise to them her undivided share of the real estate. They could unquestionably have done this by two instruments, but they could do it as effectually by one. This instrument was, in effect, the separate will of each. Either could have revoked it, so far as it was her will. On the death of Agnes, in 1872, the instrument might have been admitted to probate as her will; and in 1874 it might have been admitted to probate as the will of Penrose; but in 1875 it was properly admitted to probate as the will of both. The authorities, it will be seen, are in some conflict, but the view we have stated is supported by reason and the manifest weight of authority.”

In the case in 14 O. S. the Supreme Court mention the fact that the singular number is used in the Wills act instead of the plural, arguing from this that it was not contemplated by the Legislature that more than one person should join in a will. The court in the 39 O. S. criticise this and say, on page 641 of the opinion:

“The provisions of the English statutes and the statutes of the various states upon the subject are precisely similar to our own; and the conclusion that they indicate a policy that two or more persons may not unite jn the same instrument in making their wills, whatever the form of the instrument may be, is only reached by a rigid, and as we think,, altogether unwarranted adherence to the mere letter of the statute. The provisions of the statute relating to the execution of deeds are similar, and yet nobody has ever doubted that any number of persons having an interest in property may join in an instrument conveying it.”

A case in 136 Pa. St., 628 (Estate of Mary Cawley, deceased), is a comparatively recent case, and the authorities are collected to some extent in the opinion and discussed. The court say in the syllabus, second paragraph:

“If two or more persons own property in common, there is no objection, on principle, to their joining in a testamentary disposition of it, and this might be called a joint will. Whether, after the death of one or more of the makers, the surviving maker may revoke such a will, as to his title or share of the property devised, not decided.
“Brother and sister joined in executing a paper in the following form: ‘I, B. C., should I be the first to die, and I, M. C., should I be the first to die, give, devise and bequeath, and to the survivor of either of us, all the estate of the decedent for life with remainder over. Throughout the paper, except in the clause appointing an executor, the operative words were in the singular number.
“This instrument was not a contract, in form or effect; nor, there being no joint property or joint devise, was it a joint will. It was properly a double will, and must be construed and treated as the separate will of each maker, as fully as though a separate copy had been executed by each. "Wherefore, after the death of one, it was revokable by the other as to his own property.”

The brother died, in this case, and after that the sister died. This joint or double will, made March 16, 1886, was offered for probate. Later, on the same day, a will was presented which had been executed by the sister after the making of the joint or double document, to-wit, on September 5, 1887. The register of deeds held that this last will could not be admitted to probate. The case was taken to the next court above the register— the name of the court does not appear in the report — and that court held that by the making of the subsequent and separate will she revoked her disposition of the property as made in this joint document. The opinion of the court is given in this volume and it is quite full upon that question, holding that she had the power to revoke the disposition of her property that she had made in the joint will; and the Supreme Court of Pennsylvania sustains this holding, and discusses the question on page 638 of the opinion, citing numerous authorities, among which is Walker v. Walker, 14 O. S., 157. They say:

“Another class of questions is presented, when two or more persons make reciprocal testamentary provisions in favor of each other whether they unite in one will, or each executes a separate one. Such wills may be described as mutual or reciprocal. Their validity does not seem to be doubted, after the death of the respective testators; but the extent of the power of revocation in the survivor, after the death of one or more of the testators, is a question still in controversy and upon which different conclusions have been reached. In Evans v. Smith, 28 Ga., 98, the will was signed by two, and presented by the survivor for probate. No revocation was attempted, and the only question really before the court was the validity of the paper as the will of the deceased signer. The court held it valid, characterizing it as a “double will.” In Lewis v. Schofield, 26 Conn., 452, a similar will was presented, and its validity upheld by the court. In Betts v. Harper, 39 O. S., 639, the testators were tenants in common. After the death of both it was probated as the separate will of each, and the earlier case of Walker v. Walker, 14 O. S., 157, which had denied the validity of such a will, was distinguished and qualified.”

Other cases are referred to on this page of the opinion. The court say, on page 640, referring to this will:

“Both adopted the same written expression of that desire, and executed it. The will so made must be regarded, therefore, as the separate will of each testator, as fully as though the will of each had been separately drawn up and signed. There was no joint property or joint devise. It is not, therefore, a joint will. It is not a contract between the makers in form or in effect. No consideration passed from one to the other, and none is suggested, except the affectionate interest which this aged brother and sister felt for each other.”

It seems to us that these two papers — Dennis Coghlin’s will and the will of his wife — do not constitute a joint will, as to bring this will within the prohibition of any authority that has been called to our attention. The property disposed of in the two wills is separate property. Mr. Coghlin had his estate, amounting to nearly a million dollars, and Mrs. Coghlin had her estate, amounting to something more than seven hundred thousand dollars. Both desired, apparently, that their property be held in trust until the year 1910, or longer if either survived longer; the trust was to continue until the death of the survivor, and both desired that their property should then be divided among their children, share and .share alike, and each provided for the same manner of division and each desired that their children in the final disposition of their estates should have the same amount of property in value, considering the estate of both and the share that each child got from the estate of the other. The wills were executed and attested at different times and disposed of different property — separate property and separate estates. They do not seem to have taken the form of a compact or an agreement, which is regarded as objectionable by some of the authorities, but they are separate and distinct testamentary dispositions of property, although the disposition in each is practically identical with that of any other. There is nothing that prohibits a husband and wife from disposing of their property by will in the same manner, and so that their estates shall take the same course and be distributed in the same way after their death, or shall be distributed at the same time after their death among their children, looking to the welfare of the children and desiring that each shall have the same share considering the estates of both. This form of a disposition of their property could not have been brought about, of course, without discussion between them; that is clear — the matter must have been talked over and each must have known the manner of will that the other made, but that would not invalidate the disposition, so far as we are able to discover, or make it objectionable on the ground that it was a joint will. But, in any event, in this case it appears that there never was in fact but one legal will; there never was in fact but one will. While Mrs. Coghlin had undertaken to make a will, her will was invalid, null and void, and so held when offered for probate, and this was done before the death of Mr. Coghlin, for, according to the petition, she died three months before his death, and the petition alleges that upon her death her will was offered for probate and probate refused. So that at the time of his death, with this will standing unrevoked and unaltered, his wife’s will having been held null and void, there being no allegation to the contrary, it would be presumed that Dennis Coghlin knew this to be the fact. At least there is no allegation in the petition that he did not know it, and with no will of his wife in existence at the time of his death, his will is left as the testamentary disposition of his property. But, regardless of that, if his wife’s will had been admitted to probate, or if he had died first leaving her with her will to be afterwards admitted to probate, in our judgment these two documents, taken together,' are not within any rule of law prohibiting such a testamentary disposition of property. We think that while they refer to each other and each refers to his or her estate and to the estate of the other, they are in reality and in fact separate and disinct dispositions of property and separate wills under the authorities, some of which I have referred to, and we think that either had the power to revoke his or her will if he or she saw fit to do so. But neither of them attempted to revoke the will so made.

The ultimate object of this action, or its real object, is a partition of the real estate described in the petition; to set aside the trust and partition the real estate among the legal heirs of Dennis Coghlin. It is said that with Mrs. Coghlin’s will declared null and void, this estate can not be divided as provided for in this will. Whether this is true or not, we do not think it necessary to decide at this time; that question will come up properly when the time comes for a distribution of the estate, at the expiration of the trust, January, 1910. That does not affect the trust itself, that does not affect the provision of Mr. Coghlin’s will that his estate should be held in trust until January, 1910, the heirs until that time to receive only the income of the estate. What effect the invalidity of the will of Mrs. Coghlin may have upon the distribution, if any, at that time, we shall not now discuss or decide. The main object and purpose of this will evidently was that the property should be held in trust, the heirs not to receive the property or to have any power to dispose of it in any manner until the expiration of the trust, they receiving during that time only the income of the estate. This was the main feature of this testamentary disposition of this property. That is not affected in any way by the death of Mrs. Coghlin or by the fact that her will was not admitted to probate, or the fact that she had made a will of similar character, so far as the trust was concerned, and it is'the trust provision of the will, so far as it relates to the real estate, that is sought to be set aside here in order that it may be partitioned among the heirs of the estate. It is not asked that the trust, so far as the personal property is concerned, shall be set aside or altered in any way. The demurrer to the petition will be sustained, and the petition dismissed.

Smith & Beckwith and Cole, Whitlock & Milroy, for plaintiffs.

Hamilton & Kirby, for defendants.


text:
    ACTION FOR NEGLIGENTLY CAUSING DEATH IN A FOREIGN STATE.
    [Circuit Court of Mahoning County.]
    Alvida Schell et al v. The Youngstown Iron & Sheet Co.
    Decided, March Term, 1904.

      Section 6134a, Ohio Revised Statutes, Construed — Jurisdiction of Ohio Courts — To Enforce Statute of Another State — For Negligence in Causing Death of Citizen of that State.

    A statute of state of Pennsylvania will be enforced in Ohio for negligently causing death to citizen of that state. The courts of this state have jurisdiction in actions to recover damages under the statute of the state of Pennsylvania for negligently causing the death of a person in that state, although such person and his next of kin were all citizens of such state at the time of the injury.
    Cook, J.; Laubie, J., and Burrows, J., concur.
   The action below was by the widow and children of Daniel Schell for negligently causing the death of the husband and father of plaintiffs in error. The petition averred that Schell at the time of his death was a resident of the state of Pennsylvania as were also the wife and children; that the widow and children are still such residents, and that the negligence which caused his death took place in the state of Pennsylvania; if, therefore, plaintiffs have a cause of action it must be under a statute of Pennsylvania.

• The petition further avers that the state of Pennsylvania has such statute by which the wife and children have a right of action for negligently causing the death of the husband and father, and that the' wife and children are the proper parties plaintiff under such statute for such wrong.

The petition sets forth the statute of Pennsylvania, which is very much like the statute of this state, except that under the statute and Constitution of that state the amount of recovery is unlimited, subject alone to the determination of the court or jury.

The petition further sets forth that the courts of Pennsylvania enforce our statute upon the same subject, in the same manner and to the same effect as our courts, except only as to the amount of recovery and as to who shall be parties plaintiff, and avers that the negligence complained of in the petition constitutes a cause of action in that state as it does in this state.

To this petition there was a general demurrer interposed in the court below, which was sustained and final judgment rendered, dismissing the petition at plaintiff’s costs.

The claim of defendant’s counsel made in the court below and also in this court is: That the demurrer was properly sustained for the reason that the law, as it now is in this state, prohibits an action in the courts of this state for damages for negligently causing death in another state, except where the deceased was a citizen of our own state, and in support of that claim Section 6134a of the Revised Statutes is invoked. That Section provides as follows:

“(Right by statute of other state, territory or country enforced.) Whenever the death of a citizen of this state has been or may be caused by a wrongful act, neglect or default in another state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory or foreign country, such right of action may be enforced in this state within the time prescribed for the commencement of such action by the statute of such other territory or foreign country.” 91 V., 408; 95 V., 401.

For the purpose of ascertaining the intention of the General Assembly in enacting this statute and what is its proper construction, it is important to ascertain what was the law upon this subject previous to its passage. It is insisted upon the part of demurrant that, without this provision, no action could be maintained, and that its purpose is only to give such right of action when the deceased was a citizen of this state. It must be conceded that we have no authoritative enunciation of our Supreme Court upon this question. In the case of Woodward, Administratrix, v. Michigan Southern & Northern Indiana R. R. Company, 10 O. S., 121, the only question decided was that an action could not be maintained for negligently causing the death in the state of Illinois by an administrator appointed in this state, as such administrator would be a trustee subject to the laws of this state, and must distribute the fund in accordance with our laws, which was entirely different from the manner prescribed by the statute of Illinois, but in the opinion it is said:

“We do not undertake to decide whether an administrator appointed under the law of Illinois, might or might not maintain such an action, for the purpose of recovering the fund to be distributed under the law of Illinois. That case would present very different considerations from the present.”

In the case of Hover, Admr. v. The Pennsylvania Company, 25 O. S., 667, it was determined that an action could not be prosecuted in this state under our statute for negligently causing death in another state, and that was all that was determined in that case. The case of Brooks, Admr. v. Railway Company, 53 O. S., 655, and unreported, we take it, is to the same effect, as it was decided on' the authority of the last two cases. The case of Railway Company v. Fox, 64 O. S., 133, Section 6134a, as it existed previous to the amendment of 1902, was under consideration, but all the court decided was that our courts would not entertain an action under the law of the state of Indiana for the reason that that state did not enforce our statute in the manner required by Section 6134a.

These cases in no sense sustain the contention that the courts of this state will not entertain an action when properly brought under the statute of a sister state, when such state enforces our statute of like character, under the rule of comity between the states, and therefore the question as to whether or not our courts would entertain an action upon the statute of a sister state for negligently causing death where the injury and death took place in such state independent of Section 6134a, is still an open one, it not having been determined by our Supreme Court.

Why should, not such action be maintained in our courts? Nearly all if not all the states of the Union have, statutory provisions substantially the same as Lord Campbell’s Act. Buswell on Law of Personal Injuries, Section 22.

These statutes are not penal in their nature, but remedial. They simply preserve to the next of kin, ordinarily the decedent’s family, that to which the decedent would have been entitled had death not ensued. The only reason that the action could not be maintained at common law was one of the old fictions with which it abounds that such a right of action died with the party. In Stewart v. Railroad Company, 168 U. S., 448, Mr. Justice Brewer, in speaking of this character of action, says:

“Notwithstanding the ability with which the arguments in support of this conclusion are presented in the opinion of the court of appeals, we are unable to concur therein. A negligent act causing death is in itself a tort, and, were it not for the rule founded on the maxim actio personalis moritur cum persona, damages therefore could have been recovered in an action at common law. The case differs in this important feature from those in which a penalty is imposed for an act in itself not wrongful, in which a purely statutory delict is created. The purpose of the several statutes passed in the states, in more or less conformity to what is known as Lord Campbell’s Act, is to provide the means for recovering the damages caused by that which is essentially and in its nature a tort. Such statutes are not penal, but remedial, for the benefit of the persons injured by the death. An action to recover damages for a tort is not local, but transitory, and can as a general rule be maintained wherever the wrongdoer can be found (Dennick v. Railroad Company, 103 U. S., 11).- It may well be that where a purely statutory right is created, the special remedy provided by the statute for thé enforcement of that right must be pursued, but where the statute simply takes away a common law obstacle to a recovery for an admitted tort, it would seem not unreasonable to hold that an action for that tort can be maintained in any state in which that common law obstacle has been removed. At least it has been held in this court in repeated cases that an action for such tort can be maintained ‘where the statute of the state in which the cause of action arose is not in substance inconsistent with the statutes or public policy of the state in which the right of action is sought to be enforced.’ Texas & Pacific Railway v. Cox, 145 U. S., 593, 605; see also Dennick v. Railroad Company, 103 U. S., 11; Huntington v. Attrill, 146 U. S., 657; Northern Pacific Railroad v. Babcock, 154 U. S., 190.”

As we have already said, nearly if not all the states of the Union have made provisions by statute for correcting this so-called maxim of the common law and .furnishes a right of action to persons dependent upon the party whose death is caused by a wrongful or negligent act, for the damages sustained in consequence of such death.

It becomes important here to consider the fact that in nearly all the states — there being but three or four exceptions — these statutes are enforced in the different states (Dicy on Conflict of Laws, American Notes, 667, et seq.). And why should it not be so? Of what more force and effect should the common law have in the states than the generally recognized law of the states, that a party shall be responsible for negligently causing the death of another? It leads to an absolute absurdity to say that a settled legal policy as shown by the statutes of nearly all the states shall not be effective in each state, for the reason that it is against some fiction or maxim of the common law, and especially when that policy is in accord with all our conceptions of what is right and just.

In support of this theory we refer to but a few cases. In Higgins v. Central New England Railroad, 155 Mass., 180, it is said:

“Assuming that the cause of action is one not existing at the common law, but created by the statute of another state, we have seen that it is transitory, and that it survives and passes from the deceased to his administrator. When an action is brought upon it here, the plaintiff is not met by any difficulty upon these points. Whether our courts will entertain it depends upon the general principles which are to be applied in determining the question whether actions founded upon the law's of other states shall be heard here. These principles require that, in cases of other than penal actions, the foreign law, if not contrary to the public policy, or to abstract justice or pure morals, or calculated to injure the state or its citizens, shall be recognized and enforced here, if we have jurisdiction of all necessary parties, and if we can see that, consistently with our own forms of procedure and law of trials, we can do substantial justice between the parties. If the foreign law is a penal statute, or if it offends our own policy, or is repugnant to justice or to good morals, or is calculated to injure this state or its citizens, or if we have not jurisdiction of parties who must be brought in to enable us to give a satisfactory remedy, or if under our forms of procedure an action here can not give a substantial remedy, we are at liberty to decline jurisdiction. Blanchard v. Russell, 13 Mass., 1, 6; Prentiss v. Savage, 13 Mass., 20, 24; Ingraham v. Geyer, 13 Mass., 146; Tappan v. Poor, 15 Mass., 419; Zipcey v. Thompson, 1 Gray, 243, 245; Erickson v. Nesmith, 15 Gray, 221, and 4 Allen, 233, 236; Halsey v. McLean, 12 Allen, 438, 443; New Haven Horse Nail Company v. Linden Spring Co., 142 Mass., 349, 353; Bank of North America v. Rindge, 154 Mass., 203.”

In Wooden v. Western New York & Pennsylvania Railroad Company, 126 N. Y., 14, Finch, J., says:

“Certain propositions essential to the inquiry before us have been explicitly determined in McDonald v. Mallory, 77 N. Y., 546, and need no other citation for their support. That case held that the liability of a person for his acts, whether wrongful or negligent, depends in general upon the law of the place in which the acts were committed; that actions for injuries to the person in another state are sustained here without proof of the leoc loci because they are permitted by the common law which is presumed to exist in the foreign state; that such presumption does not arise where the right of action depends upon a statute which confers it; and that in such case the action can only be maintained here by proof that the statutes of the state in which- the injury occurred give the right of action and are similar to our own.
“Upon the question of similarity we have also held that the two statutes need not be identical in their terms or precisely alike, but it is enough if they are of similar import and character, founded upon the same principle and possessing the same general attributes (Leonard v. Columbus Steam Nav. Co., 84 N. Y., 53). It is quite evident that the two statutes are of similar import. They are founded upon the same principle, are aimed at the same evil, construct the same sort or kind of action, and give it for the same class of individuals. In both the utter failure of redress at common law where the injury ended in death was the injustice for which a remedy was enacted ; and in both the new action was given for the benefit of those who had suffered an injury as the consequence of the wrong. This fundamental agreement in the main and substantial characteristics of the two statutes is not affected by the difference of detail which the demurrer points out.”

In Dennick v. Railroad Company, 103 U. S., pages 17 and 18, Mr. Justice Miller says:

“It is difficult to understand how the nature of the remedy, or the jurisdiction of the courts to enforce it, is in any manner dependent on the question whether it is a statutory right or a common law right.
“Wherever, by either the common law or the statute law of a state, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties.
“The action in the present case is.in the nature of trespass to the person, always held to be transitory, and the venue immaterial. The local court in New York and the Circuit Court of the United States for the Northern District were competent to try such a case when the parties were properly before it (Mostyn v. Fabrigas, 1 Cowp., 161; Rafael v. Verelst, 2 W. Bl., 983, 1055; McKenna v. Fish, 1 How., 241). We do not see how the fact that it was a statutory right can vary the principle. A party legally liable in New Jersey can not escape that liability by going to New York.' If the liability to pay money was fixed by the law of the state where the transaction occurred, is it to be said it can be enforced nowhere else because it depended upon statute law, and not upon common law? It would be a very dangerous doctrine to establish, that in all cases where the several states have substituted the statute for the common law, the liability can be enforced in no other state but that where the statute was enacted and the transaction occurred. The common law never prevailed in Louisiana, and the rights and remedies of her citizens depend upon her civil code. Can these rights be enforced or the wrongs of her citizens be redressed in no other state of the Union? The contrary has been held in many cases. See Ex parte Van Riper, 20 Wend. (N. Y.), 614; Lowry v. Inman, 46 N. Y., 119; Pickering v. Fisk, 6 Vt., 102; Railroad v. Sprayberry, 8 Bax. (Tenn.), 341; Great Western Railway Co. v. Miller, 19 Mich., 305; Stewart v. Railroad, supra.”

To the same effect are generally the decisions in both the federal and state courts of nearly all the states. YThy, then, should it be said, as it is by some of the best text-writers, that Ohio is otherwise? We have no decision in this state justifying the claim, and we think if the question had been presented to our Supreme Court, its holding would have been the same as is generally held by the courts of other states.

We now come to the question as to whether or not the act of 1902, Section 6134a, deprives our courts of - jurisdiction in such actions, except in eases where the death of a citizen of our own state is caused by the negligence or wrongful act eomplained of. The claim is that original Section 6134a, enacted in 1890, having given a right of action to all persons, whether citizens of the state or not, in our courts to enforce a claim under the statute of another state, and that section .being repealed and a citizen of our own state being only specified in the amendment, that that presupposes that no such right previously existed and was only conferred by the statute of 1890, and that statute being amended and repealed, that it was the intention of the General Assembly to confine the right exclusively to persons who were citizens of Ohio when death ensued from such negligence in the foreign state.

The section as it was originally enacted is as follows:

“(Right by statute of other state, territory or country enforced.) Whenever death has been or may be caused by a wrongful act, neglect or default in another state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory or foreign country, such right of action may be enforced in this state in all cases where such other state, territory or foreign country allows the enforcement in its courts of the statute of this state of a like character; but in no case Khali the damages exceed the amount authorized - to be recovered for a wrongful neglect or default in this state, causing death. Every action brought under this act where the death has already occurred shall be commenced within one year from the passage of this act; and in all other cases, within the time prescribed for the commencement of such action by the statute of such other state, territory or foreign country (91 V. 408).”

It will be observed that this section as it originally stood restricted the right to bring an action to a very narrow compass apparent from its reading, and the construction placed upon it in Railroad Company v. Fox, Admr., supra, makes the “fit exceedingly tight.” On pages 144 and 145, Spear, J., says:

.“Nor is there ground for saying that our statute, Section 6134a, is satisfied by the mere entertaining by the courts of another state of a cause of action for death occurring in our state. Such is not the language of the law. It is not the entertaining of the suit that is stipulated for, but enforcement of our statute of like character. This means that it is the law of Ohio which the sister state will enforce; not necessarily the law of that state, for where there is an essential difference, as has already been pointed out, it can not be said by enforcing their own law the court of the other state is enforcing our statute. Our statute rests upon the ground of reciprocity which is based upon the idea of comity, and the very essence of reciprocity implies that each state, as to the subject matter, shall have and enforce identical laws; not simply provisions which may be in many respects similar, but in all essential particulars the same. It seems to us clear that the laws of Indiana, while they permit the bringing of actions in the courts of that state to recover for death occurring in another state, require the determination of the rights of the parties by the provisions of their own laws, but do not enforce the laws of the state where the injury was committed.”

Nearly all the statutes in the different states differ from each other; none of them are identical. In some of them the amount to be recovered is unlimited; in others the amount is specified; in some instances a small amount; in others a large amount; some provide the action shall be by an administrator for the benefit of a specified class; others provide that the suit shall be by the next of kin directly; in some of the statutes the beneficiaries are quite limited, being restricted to the immediate family; others extend to all the next of kin. In some states they provide how the negligent acts shall be proven, and what shall constitute negligence; in others it is left to the general rules of law upon the subject. If the statutes must be identical as was required by Section 6134a, as it originally was, then it would be almost impossible to maintain an action in this state under the statute of a foreign state. The decision was rendered in the case of Railroad Company v. Fox, Admr. (February 5, 1901), and at the next meeting of the General Assembly on May 6th, 1902, Section 6134a was amended as we now have it, and the original section repealed, which left the subject matter as it was previous to its enactment in 1890, subject only to the provision as it now exists.

The fact that so soon after this decision was made the section was amended would seem to be significant, and we are fully persuaded that the intention of the General Assembly was that the question should be left as it was before the statute was passed, all that was required being that the statutes of the different states should be substantially alike, and that if the foreign state substantially enforced our statute in accordance with the remedial provisions, that was all that was necessary, and in cases where the death of the citizen of our own state was caused by negligence or wrongful act, even that should not be required, but the next of kin might maintain an action in our courts under the statute of the foreign state independent of the question whether such foreign state enforced our statute or not.

There are many reasons why we feel constrained to place this construction upon Section 6134a as amended. The section does not provide directly, but, if at all, only by implication that in no other case but in that of the death of a citizen of our own state can such action be maintained, and it is a well settled rule of law that, “In giving construction to a provision of a statute which attempts to abrogate or modify a well established rule of the common law, the scope of the provision should not be extended beyond the plain import of the words used if reasonable effect can otherwise be given to it” (Felix v. Griffiths, 56 O. S., 39). If this rule would apply to a provision of the common law, much more would it apply in cases of this character where the right is so generally and specifically recognized in the different states.

Furthermore, such a construction would make the section directly inimical to Section 2 of Article IV of the Constitution of the United States which provides that “The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” Just what the words “privileges and immunities” signify it is difficult to tell under all circumstances, but their significance and import must be determined under the circumstances of each particular case; at the same time there are well established rules which are recognized and given effect in all cases, and among these, it is well settled, is the right to the usual remedies for the collection of debts and the enforcement of other personal rights in the courts of all the states. Cooley’s Constitutional Limitations, page 490 and cases cited in the notes.

True, the state may make reasonable restrictions so that its own citizens and courts will not be abused or imposed upon. It may provide that process in attachment and garnishment may be issued against a citizen of a foreign state, although not against a citizen of its own state; also that a citizen of a foreign state shall be required to give security for costs; these are reasonable provisions, but it can not close the doors of its courts absolutely to one class and give it to another, simply on the ground of citizenship of a different state. Such provision would be subversive of the entire theory of the union of the states, Cases cited in the notes in Cooley’s Limitations, supra.

The construction contended for by defendant in error does not meet the question directly, but it is indeed more comprehensive and objectionable. If the death of a citizen of Pennsylvania is negligently caused, as in this case, in that state, his beneficiaries have no standing whatever in our courts, but if a citizen of Ohio is killed by the negligent act of another in that state, his beneficiaries may have complete redress in our courts without regard to their citizenship, whether they be citizens of a foreign state or of a foreign land. Certainly the General Assembly did not so intend, and we think such á construction is not required.

In addition to its evident unconstitutionality, such a construction would be shocking to courts in the administration of justice. A person might cause the death of another by the utmost recklessness in the state of Pennsylvania and have a large amount of property in Ohio; yet if the party killed was not a citizen of Ohio, the party guilty of the negligence could make this state his asylum, freed from all liability for his act, for the reason that our courts are closed against the, injured parties.

There is another rule of law that should not be lost sight of, and that is a statute will not be held to be unconstitutional except the text of the statute absolutely demands it, “And where one of the two constructions renders a (statute constitutional and the other renders it unconstitutional, the former, if reasonable, should be adopted.” Bobelya v. Friday, Opinion, Burgett, J., 68 O. S., pages 386 and 387.

Anderson & Murray, for plaintiff in error.

Hine & Kennedy, for defendant in error.

We see no necessity of so construing this section of the statute; as we have already said, it evidently means and the General Assembly must have so intended: That in eases wherein the death of a citizen of Ohio is caused by negligence or wrongful act in another state, that his next of kin shall have a right of action in the courts of our state under the statute of the foreign state, independent of the question whether such foreign state enforces our statute of a kindred nature or not; and as respects all other cases, the law is left as it was before the passage of the original act of 1890. That is, under the generally accepted rules of comity, where such state substantially enforces our statute, its statute will be enforced in this state. We see no substantial difference between the statute of Pennsylvania as pleaded and our own. It is true the parties entitled to recover are somewhat different and the amount to be recovered is unlimited. The action is instituted by the widow and children of the intestate who are the beneficiaries and the proper parties plaintiff under the statute of that state, and as they have invoked the laws of this state, they will be restricted to the amount that can be recovered in this state, and such is the prayer of the petition.

These distinctions are not important. Dennick v. Railroad Company; Stewart v. Baltimore & Ohio Railroad Company; Wooden v. Western New York & Pennsylvania Railroad Company; Higgins v. Central New England Railroad Company, supra.

Judgment is reversed and cause remanded with instructions to overrule the demurrer.