author: Putnam, J.

text:
    Jones et al., Appellees, v. Keck, Appellant.
    (No. 667
    Decided April 9, 1946.)

      Mr. Charles 8. Leasure and Mr. Homer E. Walters, for appellees.

      Messrs. Graham & Graham, for appellant.
   Putnam, J.

This is an appeal on questions of law from a decree of the court below perpetually enjoining the defendant from removing a certain airplane hangar from premises under lease to the plaintiffs. It is alleged that the decree is contrary to the weight of the evidence and contrary to law.

The petition alleges that the plaintiffs are the lessees of certain real estate, known as the “old municipal airport,” consisting of 165 acres; that by the terms of the lease they have the exclusive right to the use and occupancy of the land and the buildings thereon including the hangar in question; and that the defendant threatens to enter upon the land, tear down the building and remove same, to their irreparable damage and for which they have no adequate remedy at law. • The-prayer is for a temporary restraining order which was grantéd.

The answer is a general denial with an averment that the defendant was the owner of the hangar.

The facts pertinent to the determination of this case, as shown by the record, are as follows:

In 1939, the city of Zanesville, being the then owner of the lands in question, which were being used for an airport and on which was located the hangar which was not the property of the city but of a third party,, attempted, through its service director, to lease the lands to a corporation known as Zanesville Flying-Service, Inc., o'f which defendant was an officer. The lease was signed, acknowledged by the service director, approved» by the city solicitor and recorded. It was not, however, executed after passage of an ordinance and advertisement for bids as required by Section 3699, General Code. By the terms of the lease it was for a period of three years, renewable for three-years upon giving notice. The lease provided for an annual rental of $1 per year, was made assignable upon consent of the city, and made provision for the removal by the lessees of any hangar placed thereon by them, within 90 days after termination of the lease.. It was stipulated that the lessees should construct a hangar giving specifications therefor. Although the lease.provided for the-exclusive use of the premises by lessees, it contained a stipulation that third parties who owned hangars on the premises should continue to have the right to use them for private flying and under the leases which they respectively had with the city or the United States Government. Defendant and his assignors purchased-a hangar located on the property from a third party and remodeled same at a total cost of $1,500. This lease was subsequently assigned to the defendant for a valuable consideration and the assignment was assented to by the service director of the city of Zanesville aiid recorded. Within the time limit notice was given the safety director of intention to renew the lease, three-years additional rental was paid to the service department and a receipt therefor was issued for years 1942, 1943 and 1944. This occurred on July 1, 1942. On June 20, 1942, one of the plaintiffs, Roland Jones, wrote a letter to and appeared before the city council and questioned, the legality of the lease and the advisability of renewing the same. No adverse action, however, toward the defendant was taken. Defendant continued in possession of the premises, if not under at least in accordance with the lease provisions, except for a period of uncertain duration after Pearl Harbor when the premises were closed by the United State Grovernment. In the meantime Jones and certain of his associates, at least' Louis Butler a plaintiff herein, were negotiating with defendant concerning the use of the premises for themselves. On July 6, 1943, the city passed an ordinance for the sale of the airport premises and advertised for bids. The Zanesville Chamber of Commerce was the highest bidder at $20,000, and on December 11, 1943, the city executed a deed tó the First National Bank of Zanesville as trustee for purchasers. On December 15,1943, such bank, as trustee, leased the premises with the buildings thereon to a partnership composed of plaintiffs herein. Shortly thereafter and prior to the institution of this suit, on February 7, 1944, defendant attempted to remove the hangar and this litigation resulted.

The record shows conclusively that the chamber of commerce, the First National Bank, trustee, and two of the members of the partnership, Jones and Butler,, had actual notice of the purported lease to the defendant and the terms thereof, prior to the sale on December 11, 1943, through conversations and arguments between their officers and trustees and the defendant. It is also clearly shown that the city of Zanesvillenever attempted to revoke any rights which the defendant might have had in such premises, except as would follow by the passage of the ordinance of sale on July 6, 1943, and subsequent proceedings.

It is conceded by all parties that the purported lease-agreement of September 30, 1939, is void as a lease by reason of the failure to comply with Section 3699,. General Code.

Plaintiffs contend that at most the defendant was a tenant at will, and that whatever rights he had were lost through laches. Defendant maintains that he is entitled to remove the hangar under the doctrine of unjust enrichment and relies chiefly on the case of Lee v. Board of Commrs., Monroe County, 114 F., 744.

The first question to be considered is what was the-status of the defendant under the above facts?

In spite of the concession of plaintiffs that at most defendant was a tenant at will, we do not think that his status could be at that level. A lease is a conveyance of an estate in real property for a limited term,, with conditions attached, in consideration of rent. Dean v. Brower, 119 Cal. App., 412, 6 P. (2d), 580. Anything which creates the relationship of landlord and tenant is a lease. A tenancy at will is an estate in real property and comes within the term lease. Nor would' such a determination be of any assistance to the plaintiffs, as a tenant at will is entitled to a notice to quit and a reasonable time thereafter to remove his-property.

Was defendant a trespasser? A trespasser on land' is one, who having no title to or right to possession of "the land, makes entry thereon without consent, permission or license.

A license in respect to real estate is an authority given by the owner to another to do a particular act -or series of acts upon the land without grant jto the licensee of any estate or interest in the land. .

Section 3939, General Code, gives a municipal corporation the right to acquire, construct, maintain and -operate airports and landing fields. Such airports and landing fields are of the character of public utilities and all laws applicable to municipally owned utilities are applicable to such airports and landing fields. State, ex rel. Chandler, v. Jackson, 121 Ohio St., 186, 167 N. E., 396.

Section 4326, General Code, places in the director of public service the management of public utilities of municipal corporations. Although the director of public service could not “lease” the premises by reason of ■Section 3699, General Code, certainly his power to manage and regulate under Section 4326, General' Code, included the power to issue licenses and permits which did not arise to the dignity of an estate therein. 'The entry of the defendant on the lands was with the ■consent and authority of the service director, and he could not be a trespasser. It is evident that he was ■a licensee. The terms of his license were such as were ■embodied in the written instrument and were applicable to a license and did not raise it to the level of •a lease. Provisions, however, such as those giving the right to exclusive possession of the premises, etc., •could not apply as they were characteristic of a lease.

Being a licensee, what were defendant’s rights?

There being no reservation in the deed from the city “to the bank, the sale revoked defendant’s license. 37 Corpus Juris, 298, Section 201.

However, the revocation of the license under which ■the article was annexed to the land does not of itself deprive the licensee of the right of removal, he being entitled to a reasonable time to remove the article. 26 Corpus Juris, 680, Section 43; 11 R. C. L., 1083, Section 26.

In 26 Corpus Juris, supra, it is stated: “The invalidity of the grant or deed on the faith of which the annexations are made does not exclude a claim that, having been made by permission, they are removable as personalty. But a grant of permission by one lacking in jural capacity is ineffective for this purpose, as has been decided in the case of such a grant by a married woman and by a minor child. ’ ’ Although the service director lacked jural capacity to execute a lease, he did have jural capacity to grant a license or permit.

It is to be remembered that the city’s grantee, the bank, as trustee, the Chamber of Commerce as cestui que trust, and the bank’s lessees the plaintiffs herein, all had actual knowledge of the. written instrument, the terms thereof and defendant’s use of the premises with the consent of the city through its service director.

In 26 Corpus Juris, 681, Section 46, it is stated: “The authorities are in unison to the effect that such an agreement will prevail as against a subsequent purchaser or mortgagee of the realty who has notice, actual or constructive, of the agreement.”

Under certain conditions, in Ohio, the rule is restricted to actual notice, but this requirement is met in the instant case. Holland Furnace Co. v. Trumbull Savings & Loan Co., 135 Ohio St., 48, 19 N. E. (2d), 273.

Although the premises were advertised for sale in July 1943, the sale was not consummated until December 11, 1943. The city might have rejected all bids and refused to sell. Consequently the license did not expire until December 11, 1943. Less than 60 days, intervened in winter until February 7, 1944, when •defendant was enjoined, and during that time negotiations were in progress. We do not think this was an unreasonable time under the circumstances for removal, and defendant was not guilty of laches.

It must he remembered that defendant is not seeking to exercise rights under a void contract, as was the case in Buchanan Bridge Co. v. Campbell et al., Commrs., 60 Ohio St., 406, 54 N. E., 372. He is not peeking to hold the exclusive possession of the premises under the terms of the lease. He seeks only to remove .a fixture lawfully placed upon the premises with permission for removal. The city had a right to grant such permission in the form of a license, written or oral, and if the purchaser took the property with actual knowledge thereof, which it did, and if the defendant is not estopped by laches, which he is not, his right to the building is clear and equity should and ■does so declare.

The decree is reversed and the cause remanded.

Decree reversed.

•Sherick, P. J., and Montgomery, J., concur.


source: Caselaw Access Project

author: Miller, J. By the Court.

license: Public Domain

text:
    The State, ex rel. Mastracci, v. Rose et al., Judges.
    (No. 3994
    Decided March 4, 1947.)

      Mr. Joseph M. Harter, for relator.

      Mr. Horace S. Kerr, for respondents.
   Miller, J.

This is an action for a writ of prohibition to enjoin two of the judges of the Court of Common Pleas of Franklin county from hearing a proceeding in contempt against the relator for the failure to pay temporary alimony in compliance with a previous court order. The instant action is based upon the contention that the pleadings in the action in which the alimony was awarded show that the parties to such action were living and cohabiting together at the time of the granting of the award; that under such circumstances Section 11994, General Code, does not authorize the granting of temporary alimony; and that the trial court exceeded its jurisdiction.

It is further contended that the relator has ho adequate remedy at law as the award was not a final order from which an appeal could be prosecuted, and that if the award was complied with and payments made, recovery could not be had after the prosecution of error from the final order and a reversal, as the beneficiary would have spent the money. The respondents have filed a demurrer to the petition.

It is well settled that a writ of prohibition lies only when the inferior court proposes to exceed its lawful jurisdiction as to the person or the subject matter, or in the enforcement of its rulings in a manner or by a means not entrusted to its judgment or discretion, and! the party seeking the writ is without other adequate-remedy. Prohibition is not an appropriate remedy for the correction of errors and does not lie to prevent, an erroneous decision in a case which the court is authorized to adjudicate. The issuance of the writ would not be justified by an insufficiency of the statement of' a cause of action or by insufficient proof to sustain a. cause of action. Such matters do not go to the jurisdiction of the inferior court, but are rather questions^ of law and fact to be determined in the action there-pending. On application for a writ of prohibition to stay an action of an inferior court, the sole question to be determined is the jurisdiction of that court, and the court in which the writ is sought will not consider any mere error or irregularity occuring in the progress of the case in the inferior court. 2 Spelling on Injunctions and Other Extraordinary Remedies (2: Ed.), 1472, Section 1716; High’s Extraordinary Legal-Remedies (2 Ed.), 603, Section 762; State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264, 112 N. E., 1029; State, ex rel. Garrison, v. Brough, 94 Ohio St., 115, 113 N. E., 683; Kelley, Judge, v. State, ex rel. Gellner, 94 Ohio St., 331, 114 N. E., 255.

Now, did the court have jurisdiction to make an award of temporary alimony under the state of facts 1 The respondents are two judges of the Court of Common Pleas, one of whom is assigned to the Division of Domestic Relations, under Section 1532, General Code. The Common Pleas Court is the court of general jurisdiction in Ohio. The Constitution itself confers no jurisdiction whatever upon the Common Pleas Court either in civil or criminal cases. It merely gives that court capacity to receive jurisdiction which shall be fixed by law. Section 4, Article IV, Constitution. Its jurisdiction is therefore statutory. In accordance with this constitutional authority the General Assembly has .conferred upon the Court of Common Pleas original jurisdiction in all civil cases where the sum or matter •in dispute exceeds the exclusive jurisdiction of the justice of the peace. Section 11215, General Code. The •Common Pleas Court being a court of general jurisdiction of all actions, legal and equitable, it has jurisdiction of all actions unless its jurisdiction is taken away ¡by statute. A writ will not be issued prohibiting the ■Court of Common Pleas from determining its own jurisdiction where jurisdiction of the subject matter ■of the action has been conferred upon that court by the laws of the state. 11 Ohio Jurisprudence, 832, Section 185, and cases cited thereunder.

In addition to the general powers granted to the Court of Common Pleas, Section 11994, General Code, .authorizes the award of temporary alimony by the .court in the following words:

“* * * the court, or a judge thereof, in vacation, may grant alimony to either of the parties for his or her sustenance and expenses during the suit * *

In the light of those provisions of the General Code, we are of the opinion the respondents were duly authorized to make the temporary alimony award, the correctness of which can only be determined by a reviewing court after the case is finally adjudicated.

The relator calls our attention to the case of State, ex rel. Nolan, v. ClenDening, supra, and relies upon it as authority for the granting of the writ. That case differs from the one at bar in that the writ there was directed against the liqnor licensing board of Ohio which had been granted the gwasi-judieial power of trying members of county liquor licensing boards for the violation of certain regulations. The jurisdiction of the state board was limited while in the case at bar the jurisdiction of respondents is general. The writ in the ClenDening case was granted for the reason that the defendant board was without jurisdiction to hear the case.

This court is of the opinion that the respondents were acting within their own jurisdiction in granting the temporary alimony, and that the demurrer should be sustained.

JDemurrer sustained.

Wiseman, P. J., and Hornbeck, J., concur.

(Decided March 31, 1947.)

On Application for rehearing.

By the Court.

This cause is submitted on application for a rehearing for the reason that the court’s attention had not been called to a recent decision by the Supreme Court of Ohio.

We have read the case referred to, which is In re Cattell, 146 Ohio St., 112, 64 N. E. (2d), 416, 164 A. L. R., 312, and we still adhere to our former ruling. That case involved an action for divorce in which a restraining order was granted whereby the husband was enjoined from interfering with the wife’s exclusive use and occupancy of the home. The bond was fixed at $25 and it was allowed to be given by cash deposit with the clerk of court. A violation of the restraining order was charged and the husband was found' guilty of contempt of court and sentenced to five days in prison. A petition for a writ of habeas corpus was filed and the court field that the trial court fiad no authority to prescribe or accept a deposit of money in lieu of the bond required by Section 11882, General Code, that no proper bond having been given the injunction never became operative and the Common Pleas Court acquired no jurisdiction to punish, for there could be no violation if the required bond was not given.

Now, in the instant case, under the same process of reasoning, if the temporary alimony award was a void ■order, the writ should be allowed, but we do not find .■such to be the fact. Section 11994, General Code, authorized the allowance of “alimony to either of the parties for his or her sustenance and expenses 'during the suit.” That provision of the Code vests in the ■court a discretion to allow temporary alimony and legal expenses to either party, even though the parties ;are living together in the same house, as- alleged in the petition.- There may be still a need on the part of the wife for sustenance money, such as food, clothing, medicine, etc. Shelter does not mean sustenance, but it is included in the term. We are of the' opinion the trial court had jurisdiction to make the award.

The application for a rehearing is denied.

Application denied.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.


author: Houck, J.

text:
    Zanesville Lodge, No. 867, Loyal Order of Moose, v. Fluharty, Admx.

      Mutual benefit societies—Disallowance of benefits—Jurisdiction of. courts — Denied by by-laws and constitution—Redress ties after appeal exhausted, when.

    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 tinder 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 by-laws 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.
    (Decided July 7, 1917.)
    Error: Court of Appeals for Muskingum county.

      Mr. H. W. Kunts, for plaintiff in error.

      Mr. P. H. Tannehill, for defendant in error.
   Houck, J.

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

The material facts necessary for a proper determination of this proceeding in error are as follows: That 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 the 13th day of December, 1914, and during his entire sickness 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 the 3d day of February, 1914, he duly notified said lodge of his sickness, as required by its laws; 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 Fluharty; that Fluharty immediately 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 that the lodge upon such appeal voted on 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, which claim was by its secretary referred to the benefit board of said lodge and by the said board refused. An appeal was then 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 rendered for the plaintiff for the full amount of the claim. Motion for a new trial was overruled and judgment entered on the verdict. Error is now 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 avocation, 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 a warrant for such sum as the by-laws of the lodge may provide, which in no case 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 the tribunals of the order, as required by its laws.

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

The questions to be determined here are as to whether 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 well taken.

The facts, as disclosed by the record, clearly show that the plaintiff’s claim had been prosecuted through all the tribunals of the order, as provided 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 was brought in a civil court;

A member of a fraternal beneficial organization, consisting of a supreme lodge and subordinate lodges governed by a constitution wherein authority is given a member to appeal from any decision made by any officer, committee or benefit board of said organization, wherein 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, as provided by the constitution and laws 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 to any higher tribunal of the order from the decision of the lodge in its refusal to pay sick benefits to a member. The decision of the benefit board is final, unless an appeal is taken to the lodge, which was 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 will be seen that all the rights of the decedent to obtain the benefits which he claimed, so far as the laws of the order provided, were fully complied with, and it became necessary to resort to the courts for such redress, if any was 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' that 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 made by plaintiff in error:

“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 would take from the civil courts their right to hear and pass upon the issues raised and to be determined in the case. 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 et al. v. Jenkins, Admr., 63 Ohio St., 101, where the learned judge, speaking for the court, says, at page 120:

“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 litigated in the courts, notwithstanding the constitution and by-laws thereof may specifically provide otherwise.

In this case, plaintiff and her decedent having presented the claim now in suit to said Loyal Order of Moose, as provided by its constitution and bylaws, 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, to be used by it for the purpose of aiding and relieving its members in the misfortune of sickness, injury or death. Thus, in the practical application of • its beneficial objects, a fraternal society 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 the duties resting upon it by mere technical defenses. Defenses sound in fact and law must be offered. The undisputed facts in the case at bar show that the decedent and plaintiff below fully and completely complied with all the requirements of the order necessary to entitle the plaintiff below to the relief prayed for in the petition.

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.

Judgment affirmed.

Powell and Shields, JJ., concur.


author: Chittenden, J. Richards, J., Kinkade, J.

text:
    Moser v. Long.

      Public policy — Contract of marriage—-Entered into by a girl while a minor—Without consideration or parental consent — And immediately repudiated—Action for annulment lies, when.

    Where a young girl seventeen years of age, without the knowledge or consent of her parents or either of thém, has her mental poise disturbed and her will overcome by the persistent solicitation and urging of a strong and forceful man, with .whom she had previously had only ordinary friendly relations, and consents to a marriage authorized by a license obtained by the perjured evidence of the man, and where no cohabitation follows the marriage, and there is an immediate and continued separation thereafter, and there is no other act that would operate as a recognition of the marriage relation, and there is a prompt repudiation of the marriage contract, an action lies by her for a decree annulling the marriage contract.
    (Decided May 6, 1916.)
    Appeal: Court of Appeals for Wood county.

      Messrs. Harrington & Dunn, for plaintiff.
   Chittenden, J.

This is an action in equity to have declared null and void a marriage contract between the plaintiff, Lila Marie Moser, and the defendant, Ananias Long. The evidence shows that the plaintiff at the time of the solemnizing of the marriage was of the age of seventeen years. She resided with her parents on a farm near the village of Perrysburg. In February, 1915, the defendant, a young man about twenty-one years of age, came to the home of the plaintiff, seeking employment as a farm hand. He was a stranger in the vicinity, and stated that he had come from Virginia where his home was. He entered into the employment of the plaintiff’s father, John Moser, and continued in such employment until the following May, when he left the home of Moser and took employment with some neighbor. During all the time he lived with John Moser, and afterward, no evidence of any intimacy or unusual friendship or attachment between the plaintiff and the defendant was observed by either the father or the mother, or anyone else, so far as the testimony discloses. The evidence of the plaintiff does not disclose anything other than a relation of friendship existing between the plaintiff and the defendant.

On the 8th day of June, 1915, the plaintiff desired to go to the city of Toledo to do some shopping, and in pursuance of a conversation between the plaintiff and the defendant over the telephone, and at his suggestion, they met on that date at the interurban station in Toledo. The plaintiff’s purpose in meeting him at that place was to accompany him to a moving-picture show in Toledo. They did go to a show, and while together he began begging her to go with him to Monroe, Michigan, and be married. In this connection it is proper to state that the evidence shows that the plaintiff is a slight, delicate girl, and that the defendant is a large, vigorous man. As a result of his persistent urging the plaintiff did at last consent, and directly thereafter did go to Monroe with the defendant on an electric interurban car. The city of Monroe is about an hour’s ride by trolley car from Toledo. At Monroe, the defendant procured from the clerk of the court a marriage license. In order to obtain the license the defendant made affidavit that the plaintiff was eighteen years of age. They at once proceeded to a parsonage and were married by a minister of the gospel. Immediately after the marriage they boarded a trolley car and returned to the city of Toledo, and upon arriving in the city they at once separated, the plaintiff taking a Bowling Green car to her home and the defendant taking a Perrysburg belt car to the village of Perrysburg. The fact of the solemnizing of this marriage having been published in the newspapers, the parents of the plaintiff obtained knowledge of the marriage for the first time on the following day.

The evidence shows that the plaintiff, immediately after the marriage ceremony, repented her folly, and upon the fact of the marriage being made known to her parents expressed to them her regret and her desire and intention to repudiate the same. In explanation of her act she says that “He kept teasing me and pressing me and I simply lost my head, and as soon as I began to think it over I repented what I had done.”

Shortly thereafter she wrote a note to the defendant advising him that she did not want anything more to do with him, and she has at all times since declined to have anything to do with the defendant or to recognize him in any way as her husband. The evidence clearly discloses that the plaintiff and the defendant have never cohabited, or in any way sustained towards each other the relation of husband and wife.

From what has been said it will of course appear that the parents of the plaintiff at no time gave their consent to this marriage. Shortly after the marriage the defendant returned to Virginia, and has remained there ever since. He has entered his appearance in the case, but interposes no defense to this action.

The statute of Ohio, Section 11181, General Code, which differs in no essential respect from the statute of Michigan upon the subject of marriage, provides:

“Male persons of the age of eighteen years, and female persons of the age of sixteen years, * * * may be joined in marriage. Male persons under the age of twenty-one years, and female persons under the age of eighteen years must first obtain the consent of - their fathers, respectively, or in case .of the death or incapacity of their fathers, then of their mothers or guardians.”

It will thus be seen that the legislature of the state of Ohio has to a very great extent modified the common-law rules upon this subject. The steady trend of legislation has been to prevent the marriage of young and immature persons. The age at which marriage may take place has been raised from the common-law rule of twelve years for a female and fourteen for a male. But a further protection has been afforded them by requiring that if marriage be desired under the age of majority, eighteen years for the female, and twenty-one for the male, the consent of the father or other proper guardian shall first be obtained.

We are not called upon in this case to determine the exact limitations that are placed upon the entering into a marriage contract by the requiring of this consent between the ages named. In the case under consideration we have these essential and material facts — a young girl of the age of seventeen years, without the knowledge or consent of her parents or either of them, having her mental poise disturbed and her will overcome by the persistent solicitation and urging of a vigorous young man with whom she had previously had only ordinary friendly relations, consenting to a marriage authorized by a license obtained by the defendant upon perjured evidence given by him; no cohabitation, following the marriage, or 'any other act that would operate as a recognition of the marriage relation; a prompt repudiation of the marriage by the plaintiff as soon as she was away from the domination and control of the defendant; and a continued separation of the plaintiff and the defendant ever since, followed by an application to the court to have the contract annulled.

There have been various adjudications in which courts have held, under the facts disclosed in the cases under consideration, that marriage between parties under the age of consent were valid; but only one case that has been called to our attention presents facts essentially like those found in the case at bar. That is a case decided by the supreme court of Nevada, Fitzpatrick v. Fitzpatrick, 6 Nev., 63. The supreme court of Nevada in that case held that the marriage was binding, and refused to grant a decree annulling the same. We think it unnecessary to undertake a review.of other cases upon this subject, but content ourselves with a statement that the facts in those cases were so different from the facts in the case at bar that we do not consider them as controlling authority in this case.

A majority of the court are of the opinion that a decree should be entered in this case annulling the marriage contract. We are unable to find any grounds of public policy or public morals which require any different decree. The plaintiff would have the undoubted right to repudiate, upon the ground of her minority, any other contract that she might have undertaken to enter into, except for necessaries, and we see no reason why she should be precluded, under the facts shown in this record, from repudiating the most important contract that she could possibly have undertaken 'to enter into. To permit a young and inexperienced girl to be permanently bound by a contract entered into in a moment of weakness and folly, under the circumstances attending this case, it seems to us, would be to deprive her of thát parental protection that was intended to be vouchsafed her by the statute, and which she has, and should have, by every natural law. We think that to insist upon her being bound by this contract would not be to promote public morals, but, on the contrary, it would be a most potent influence in the opposite direction. In reaching this conclusion we are in no way indicating what our decision might be under a different state of facts.

A decree may be drawn declaring the marriage to be null and void.

Judgment for plaintiff.

Kinkade, J., concurs.

Richards, J.,

dissenting. I regret my inability to concur with the majority of the court, and were it not for the importance of the question involved I would be content with a simple statement of dissent; but I think the decision of the majority of the court is so contrary to all the authorities on the question involved that some further statement is required.

The section of the General Code cited makes females of the age of sixteen years competent to enter into a valid marriage. So far-as my investigation has gone, no authority holds that the absence of parental consent invalidates the marriage, and no authority so holding has been called to our attention by counsel for plaintiff. On the contrary, the universal holding on that subject is that the provision mentioned has to do simply with the punishment of officials who proceed without such consent. Such is the statement in 26 Cyc., 835, and authorities from many states are cited on the proposition. The authorities on the question are also collected in a note in 22 L. R. A., N. S., 1206. .

In Parton v. Hervey, 1 Gray (Mass.), 119, where the age of consent to enter into a valid marriage is twelve in females and fourteen in males, it is held that a marriage between two infants above those ages is valid without the consent of their parents or guardians, notwithstanding the statute which prohibits magistrates or ministers, under a penalty, from solemnizing the marriage without the consent of parent or guardian.

The case cited has been followed and approved not only in Massachusetts but in various other states; the only difference between the Massachusetts statute and the Ohio statute being in the ages named in the statute.

The case from Nevada cited in the majority, opinion discusses the question extensively and cites numerous authorities. In the course of the opinion of the court this is said at page 66:

“It is admitted by counsel for appellant that it is commonly held under similar statutes, that the lack of the consent of parent or guardian does not invalidate the marriage.”

The question is discussed also in The People v. Slack, 15 Mich., 193, and the same conclusion reached. See also Hunter v. Milam, 41 Pac. Rep., 332, syllabus 3, and Lacoste v. Guidroz, 47 La. Ann., 295, 16 So. Rep., 836, syllabus 4. In the latter case the parties separated at the altar without speaking to each other thereafter. In our own state something has been said on this question. The case of Shafher v. State of Ohio, 20 Ohio, 1, was a criminal case, and the question involved not precisely the same; yet in the opinion Ranney, J., gives the reasons for the validity of marriages consummated below the age of majority, but above the age of consent, and discusses the doctrine of public policy, commending the wisdom of the statute.

In the case of Holtz v. Dick, 42 Ohio St., 23, it was held that the absence of parental consent is unimportant so far as the validity of marriage is concerned.

The common pleas court in this case entered a decree for the defendant, based on the ground that the service was defective, and also on the ground that the facts stated in the petition did not entitle the plaintiff to the relief sought; and I think this decree was right, under the authorities.

It is a case where the sympathy of the court would naturally be, and is, with the plaintiff, and if it were possible for me to agree with the majority opinion I should be glad to do so; but in view of the holdings of the courts I am not able to bring my mind to the conclusion reached by the majority.

Kinkade, J.

In view of the statements in the dissenting opinion, and the authorities there cited, I desire to say, with respect to one ground that is mentioned as the ground of the decision of the court of common pleas, to-wit, a lack of sufficient service in the case, that, so far as this court is informed on that subject, it is to the effect that the court of common pleas considered this, in effect at least, an action for divorce, and that consequently the provisions of the statute with respect to service must be distinctly followed and that an entry of appearance was not a sufficient substitute therefor. It certainly needs no authority or discussion to establish the fact that in an action of this-character, to annul a contract, the defendant may enter his appearance in court in the way provided by statute, regardless of the nature of the contract.

It is said by some courts that the marriage of a female over sixteen and under eighteen is quite as valid without the consent of the parents as with it, and it is remarked in opinions following that line that the sole and only purpose of consent is to lay the foundation for the criminal prosecution of the person who issues the license or solemnizes the marriage of a female under eighteen without the parental consent provided for in the statute.

If that is true, it seems singular indeed that the legislature did not provide, in the same section requiring this consent, for the punishment of the officer. In fact, if the procuring of the consent had no purpose at all except to furnish the ground for a criminal prosecution, the provision might better have been in a section of the criminal code by itself, providing that one who issues a license for, or officiates in the solemnizing of, the marriage of a female under age, as stated, should be guilty and punished as therein stated.

It seems to me that this provision of the statute was intended for a very much more wholesome purpose than the one mentioned, although very useful along that line as well. I think the legislature distinctly intended by this provision to throw this additional safeguard around the young, and that in a case like the present, where the parties have never lived together as husband and wife, where there has been no cohabitation between them at any time shown, where they separated immediately after the ceremony was performed, and the contract, if it was a contract, was forthwith repudiated and renounced by the female, who desired not to go as wife with the other party to the contract, but to remain with her parents and act in accord with their desires, this express provision of the statute with respect to the necessity of having the consent of the parents is a provision of substance and importance to be kept in mind in passing upon the question of the right of the female to renounce the contract under the circumstances stated.

It is said that cohabitation on the part of a female past sixteen years of age is not necessary to complete the contract, of marriage. Even if this be conceded, the fact of cohabitation will be found in all cases, with a single exception, in which the subject is discussed, as having an important bearing upon the question of public policy in determining the rights of the parties. It would be very difficult indeed to state or to even imagine a case calling louder for relief than the case at bar.

The cases cited in the 20th Ohio and the 42d Ohio State are not decisive of the question here. It seems very easy to me to account for many of the decisions cited, by facts presented therein quite clearly distinguishable from the facts in the case at bar. As has been stated by my associates, the principle involved is one of great importance. No one will dispute for a moment that the plaintiff in this case, while under eighteen years of age, had she been possessed of a very large fortune, might have made a contract with the defendant, who was of full age, to transfer her entire property to him upon any stated sufficient consideration, and that that would have been a contract which the defendant could not repudiate, without the consent of the plaintiff, but which the plaintiff could promptly have repudiated upon arriving at her majority. In fact any contract, aside from necessaries and a marriage contract, that the plaintiff might have entered into at the age at which it is said she entered into this marriage contract, might have been repudiated by her when she arrived at the age of eighteen.

But it is said that there is something peculiar about the contract of marriage of an infant that makes the repudiation of it, upon arriving at majority, an act contrary to public policy, notwithstanding the fact that the parties to the contract have never cohabited and never recognized each other as husband and wife from the time the ceremony was performed; and that, therefore, although the contract be the most important contract known to humankind, and the most far-reaching in its consequences, and particularly so with respect to the female, it may not be repudiated on arriving at majority, although it has never been recognized or acted upon by the parties since the time it was entered into.

Confining what I have stated to the case at bar, and not intending what I have stated to apply to other cases presenting different facts, it seems entirely clear to me that if the decree were other than as directed in the opinion of Judge Chittenden it would not be in furtherance of public policy, but would be squarely in the face of, and against, public policy.

For the reasons stated, I concur in the decree annulling the marriage contract entered into between the parties.


author: Pollock, J.

text:
    Griffith, Admx., v. Phillips Sheet & Tin Plate Company.

      Actions—Wrongful death — Mob violence—Judgment against county — Subsequent action not barred, when.

    An action to recover damages for negligently causing the death of t a person, against the party guilty of the negligent acts, is not extinguished by a former recovery and payment of a judgment against the county, under the provisions of Sections 6278 to 6288, inclusive, General Code, for the death of the same person from injuries received from lynching by a mob, unless the county is with the party charged jointly guilty of the same negligent acts.
    (Decided December 15, 1916.)
    Error: Court of Appeals for Jefferson county.

      Mr. W. R. Alban, for plaintiff in error.

      Mr. P. P. Lezvis, for defendant in error.
   Pollock, J.

The plaintiff in error brought an action in the court of common pleas of this county against the defendant in error, alleging that during a strike at the defendant company’s tin mill in Steubenville a riot occurred on the streets, in which riot her intestate, George A. Griffith, was shot and killed by an employe of the defendant company, and that his death was caused by the negligence of the defendant company in arming this employe with the gun that caused the death of her intestate.

In that action the Phillips Sheet & Tin Plate Company, defendant, answered, and in its second defense alleged that the plaintiff prior to the bringing of this suit maintained an action against Jefferson county, Ohio, under the provisions of Sections 6278 to 6283, inclusive, General Code, to recover damages for the death of her intestate from injuries received from lynching by the mob, in which case she recovered a judgment that was afterwards paid by the county.

A demurrer was filed by the plaintiff to this defense in the answer and was overruled by the court below. The plaintiff not desiring to plead further the action was dismissed, and this proceeding in error is now prosecuted to reverse that judgment for error of the court in overruling the demurrer.

The claim is made by this defense, that, in as much as plaintiff had received from the county satisfaction for the damages that had been sustained by the death of her intestate, she could not maintain an action to recover damages from the defendant for its negligence which caused his death.

The principle is well established that satisfaction received by the person wronged from one of several joint tort-feasors, for damages caused by their joint wrongful act, is a bar to any recovery from the remaining wrongdoers. Ellis v. Bitzer, 2 Ohio, 89, and Turner v. Hitchcock, 20 Ia., 310, and authorities cited in the opinion.

This rule is based upon the principle that as each wrongdoer is personally engaged in the wrongful act he sanctions all that has been done, and is considered in law as having committed the entire tortious act; and, hence, there is but one injury and the party can have but one satisfaction for the single act.

The county and the Sheet & Tin' Plate Company are not joint tort-feasors. The county was not jointly negligent with the defendant in the commission of the negligent acts alleged to have been committed by it. For that reason the principle applied in the case of joint actors in the commission of a negligent act does not necessarily prevail in this case. The county’s liability is created only by statute. No such liability arose at common law. The legal representative of a person dying from injuries received from a mob, as that term is defined in the sections of the General Code referred to, can recover regardless of whether or not the county or any of its officers or agents were negligent.

Section 6282, General Code, so far as it refers to the right to recover, reads as follows:

“Sec. 6282. The legal representative of a person dying from injuries received from lynching by a mob, may recover of the county in which such injury occurred, a sum not to exceed five thousand dollars damages for such unlawful killing.”

The mere fact that death occurred from lynching by a mob allows the representative to recover damages. While the liability of the defendant company for damages resulting from the death is statutory, yet the statute extends only to the representative of the deceased the same right to recover which the person injured would have had at common law if he had survived the injuries.

The right to recover against the defendant company only exists if its negligent act proximately caused the injury. It is true that the amount of the recovery against both the countv and the defendant is based upon the amount of damages or loss that those entitled to recover have sustained from the death of the party, but the county is an entire stranger to the act which caused the liability of the defendant. It is not because there has been full satisfaction of the ultimate loss sustained that a recovery from one joint wrongdoer prevents a recovery from the others, but the remaining wrongdoers are released because there has been a satisfaction for the one wrongful act. Because the plaintiff has recovered from the county for the death of her intestate, which was caused by the wrongful acts of a mob, does not in any way compensate for the loss which she sustained by reason of the negligent act of the defendant company, if it were negligent.

Because some one, wholly disconnected with the wrongful act charged against the defendant company, may have compensated the person wronged for the loss sustained by the death, does not relieve the defendant company from responding in damages as compensation for the wrongful act which it committed. This principle is sustained in the case of Missouri, K. & T. Ry. Co. v. McWherter, 59 Kans., 345, 53 Pac. Rep., 135, as follows:

“1. The rule that a settlement by and discharge of one of two or more joint wrongdoers operates as a discharge of both has no application unless both are guilty of the wrongful act. A settlement with and discharge of one not in fact guilty will not affect the liability of the wrongdoer.” See also Iddings v. The Citizens State Bank, 3 Neb., 750, 92 N. W. Rep., 578; Thomas v. Central Rd. Co., 194 Pa. St., 511, 45 Atl. Rep., 344; Fox v. Mich. Cent. Rd. Co., 138 Mich., 433, 101 N. W. Rep., 624, 68 L. R. A., 336; Chapman v. Pittsburgh Rys. Co., 140 Fed. Rep., 784, affirmed 145 Fed. Rep., 886, 76 C. C. A., 418; Atlantic Dock Co. v. The Mayor, etc., 53 N. Y., 64.

In the syllabus of the last case the court said:

“The cause of action ex delicto is not extinguished by the recovery and satisfaction of a judgment against a stranger, in nowise joined in liability with defendant, for the full amount of damages claimed, nor is the plaintiff estopped thereby. The adjudication only acts as an estoppel between the parties thereto, or those in privity with them.”

A recovery of a judgment against the county, by virtue of Sections 6278 to 6283, inclusive, General Code, in favor of a legal representative, for damages for the unlawful killing of a person by a mob, and the payment of the judgment by the county, will not bar a recovery of damages by the same party against a second party who is guilty of negligence which proximately caused the death of the same person, where it is not shown that the county was guilty of the negligent act charged against the second party.

Judgment reversed.

Spence and Metcalfe, JJ., concur.


author: Gorman, J..

text:
    Morris v. The State of Ohio.

      Criminal law—Larceny — Evidence—Guilty knowledge—Receiving stolen goods—Proof of previous transactions.

    In cases involving fraud in receiving stolen goods, scienter is a necessary element to be established in order to fasten guilt upon the accused, and in such cases'.evidence of previous transactions which necessarily involve guilty knowledge by the defendant with reference to the transaction in question is admissible.
    (Decided May 21, 1917.)
    Error : Court of Appeals for Hamilton county.

      Messrs. Schmuck & Jacobs, for plaintiff in error.

      Mr. Simon Ross, Jr., assistant prosecuting attorney, for defendant in error.
   Gorman, J..

Plaintiff in error, Frank Morris, was jointly indicted with one Sam Cummins, and Julius Khourt, on two counts, one for grand larceny in which he was charged with having stolen and carried away forty-three pairs of shoes of' the value of $145.85, personal property of The Baltimore & Ohio Southwestern Railroad Company; and in the other he was charged with having received these shoes as stolen goods, knowing them to have been stolen.

Plaintiff in error elected to be tried separately, and upon being tried was found guilty of grand larceny in that the value of the goods stolen was assessed at more than thirty-five dollars. He was then given an indeterminate sentence in the Ohio penitentiary.

It is claimed that there was error in the trial of the cause below in this: first, that the evidence fails to establish that the shoes were stolen. An examination of the bill of exceptions and the evidence adduced at the trial fully satisfies us that the jury were warranted in finding the plaintiff in .error guilty as charged in the first count of the indictment. The verdict is not manifestly against the weight of the evidence, but, on the contrary, the accused having failed to take the stand and testify or explain how he came to be in possession of the goods that were shown to have been stolen, we think the jury had abundance of evidence • upon which to base the verdict.

Secondly, it is claimed that the court erred in permitting one of the accused, Sam Cummins, who was jointly indicted with Frank Morris, to testify as to transactions between himself and Morris relating to former thefts in which Morris had sold stolen goods to said Cummins. Under the count of the indictment charging Morris with having received stolen goods it was proper to show scienter or knowledge on the part of Morris that the goods he had in his possession were stolen. It is a well-known rule of law that in cases involving fraud in receiving stolen goods, scienter is a necessary element to be established in order to fasten guilt upon the accused. In the case of Coblentz v. State, 84 Ohio St., 235, this rule was laid down:

“On the trial under such an indictment evidence of previous transactions which necessarily involve guilty knowledge by the defendant with reference to the transaction in question is admissible, but as to transactions occurring subsequent to that on which the indictment is based evidence is not admissible.”

In the case of Tarbox v. State, 38 Ohio St., 581, the court said at page 584:

‘‘The decisions are uniform to the effect that, where scienter is an element of the crime charged, previous offenses, necessarily involving such guilty knowledge, are admissible.”

In State v. Reineke, 89 Ohio St., 390, the rule laid down in the cases above cited is approved and followed.

It appears, therefore, that the state was well within its rights when it undertook to show and did show prior transactions of Morris involving the sale of stolen goods and having in his possession stolen goods.

Upon a review of the whole case we find no error in the record prejudicial to the plaintiff in error, and the judgment of the court of common pleas is affirmed.

Judgment affirmed.

Jones, P. J., and Hamilton, J., concur.


author: Farr, J.

text:
    Davis, Admx., v. Board of Commissioners of Mahoning County et al.

      Mobs—Statutory remedy for violence — County not liable, when — Section 6283, General Code, construed.

    In an action to recover damages against a county under favor of Section 6283, General Code, for the death -or injury of a person by a mob, it must appear from the evidence that death or the injury was inflicted by the mob while attempting to lynch another person, and such person must at the time be the definite object of the mob’s violence. The phrase “another person” can not be construed to mean “no one in particular,” but a person certain and definite.
    (Decided September 28, 1917.)
    Error : Court of Appeals for Mahoning county.

      Mr. Franklin B. Powers, for plaintiff in error.

      Mr. J. P. Pluxley, prosecuting attorney, and Mr. H. H. Hull, assistant prosecuting attorney, for defendants in error.
   Farr, J.

This is an error proceeding prosecuted in this court to reverse a judgment of the court of common pleas of this county. The parties sustain the same relation here as in the court below.

On the 18th day of January, 1916, the plaintiff in error, Irene Davis, as administratrix, began an action in the lower court seeking to recover against the county of Mahoning for the death on or about the 7th day of January, 1916, of her decedent, Robert Davis, which it is claimed resulted from a bullet wound or injury received on said date while decedent was in the employ of The Pittsburgh & Lake Erie Railroad Company, and while walking along its tracks adjacent to Broad street in the municipality of East Youngstown, said county.

The petition among other things avers that at and immediately prior to the hour of midnight on said date there was a collection of people upon and near to said Broad street, in and near to the business district of said village, assembled for an unlawful purpose and intending to do damage and serious injury to divers persons, and pretending to exercise correctional power over divers persons by violence and without authority of law, and that said assemblage of people was intending to and did cause damage to buildings and the contents thereof, within the business district of said village, and intending to do violence to the owners of said buildings and also to the police officers and divers good citizens of said village, and to do or cause • damage to the buildings, properties and bridge of The Youngstown Sheet & Tube Company, and to exercise correctional power over the servants, agents and employes of said company, and was acting with reckless and lawless disregard for the safety and lawful rights of any and all persons; that her decedent while about the performance of his duties as a car repairer and while walking along the tracks of said railroad company, adjacent said Broad street, as aforesaid, suffered a bullet wound by the act or acts of such collection of persons, acting as aforesaid, from which he soon thereafter died and by reason of which plaintiff claims damages against said county of Mahoning in the sum of five thousand dollars.

■ To said petition an answer was filed admitting the immaterial allegations thereof and denying each and every other averment, and charging that decedent’s death was brought about as the direct and proximate result of his own wilful, negligent and criminal conduct, and that decedent took an active part in the criminal and riotous conduct of said collection or assemblage of people, and that while so engaged he was shot and his life thereby taken, and, if not so taken, that it was taken at the hands of those who were lawfully attempting to quell said riot and to bring to order and justice the persons so collected for riotous and criminal purposes.

Trial was had in the court below and a verdict directed for defendants, upon which judgment was entered, and from which error is prosecuted in this court. The action below was brought under favor of Sections 6278 to 6289, inclusive, General Code.

The record discloses that in the evening of said 7th day of January, 1916, a collection of people had assembled in Broad street of said village of East Youngstown and were rioting by looting and burning buildings and discharging firearms promiscuously; there was also rioting and lawlessness in other parts of said village, which continued at intervals throughout the night. At about midnight an armed party of some fifteen persons approached Broad street from- a westerly direction and they were also discharging firearms somewhat promiscuously. At or near that time 'the fire by the rioters or mob at Broad street became more rapid, then lessened somewhat. It was about this time that the decedent, Davis, was walking along said railroad tracks adjacent said Broad street. Three persons, Mike C'ushner, Joseph Danko and Joseph Cramer, were likewise walking along said tracks, and about ten feet behind Davis, when he suddenly fell to the ground, and when they approached and raised him up he said that he was shot. They then placed him aboard an engine which conveyed him to the hospital, where he died later. The record does not disclose who fired said shot, nor from what direction it came; nor does it disclose that at the time the wound was received the said mob, or the persons approaching from the west, who were also discharging firearms, had any particular person or persons in view, or as the object of their lawlessness. The record does disclose, however, by the testimony of Mr, Woltz, that near five o’clock in the evening rioters were shooting at the bridge of said Youngstown Sheet & Tube Company and that men employed by said company were on said bridge at the time. This is practically the only testimony as to any definite object of the mob’s violence.

It is urged, however, that liability attached as against said county by provision of above Sections 6278 to 6289, General Code, and especially Section 6281, which provides that a person assaulted and lynched by a mob may recover from the county in which such assault is made, etc., and it is conceded that the action below rests largely within the authority vouchsafed by Section 6283, which reads as follows:

“Sec. 6283. A person suffering death or injury from a mob attempting to lynch another person shall come within the provisions of this chapter. He or his legal representatives shall have a like right of action as one purposely injured or killed by such mob.”

And it is further urged that in construing the above section it is necessary to read in connection therewith Section 6278, which provides as follows:

. “Sec. 6278. A collection of people assembled for an unlawful purpose and intending to do damage or injury to any one, or pretending to exercise correctional power over other persons by violence and without authority of law, shall be deemed a ‘mob’ for the purpose of this chapter. An act of violence by a mob upon the body of any person shall constitute a ‘lynching’ within the meaning of this chapter.”

The issue raised here is, therefore, Can recovery for the death of Davis be had against the county, by virtue of the foregoing sections, when, at the moment the fatal wound was received, the firing by the mob at Broad street, as well as by the party approaching from a westerly direction, was desultory and without any definite aim or object, so far as the record discloses, and in the absence of any positive testimony as to the source of the shot or the direction from whence it came? Two words are defined in the above Section 6278, namely, “mob” and “lynching,” and it was evidently not the legislative intent to permit the common-law definitions to control. There is, therefore, no question in the instant case but that a “mob” had assembled, But was there a “lynching?” Was Davis lynched? That is the real issue. Lynching is defined in said Section 6278 as follows: “An act of violence by a mob upon the body of any person shall constitute a ‘lynching’ within the meaning of this chapter.”

Three things are therefore necessary to constitute such lynching, a mob, a person, and an act of violence upon the body of that person by such mob; and, whenever the act of violence is visited upon the body of any person, then it must be said that such mob has a definite fixed purpose as to such person; that is, it purposes to do the violent act, and the person upon whom it is visited is the objective of the act.. Such is clearly the legislative intent, and is further indicated in Section 6283, as follows:

“A person suffering death or injury from a mob attempting to lynch another person shall come within the provisions of this chapter.”

An “attempt” is the effort or endeavor to carry into execution a previously conceived plan or purpose; therefore the phrase “another person” can not mean “no one in particular,” or “everybody in general,” but must be the subject of the plan, the object of the purpose. And such was the legislative intent. Said act, though liberal in its terms, was never intended to provide compensation for the indiscriminate, lawless, predatory acts of a riotous mob, generally, but not definitely, on mischief bent, but to provide a remedy for damages suffered from definite, specific acts; and such is the reasonable import of the language used, easily deducible therefrom, and it is the ordinary and reasonable meaning of the language used which must control in the act’s construction. Conrad v. Davies, Auditor, 14 C. C., N. S., 475, 477; Dorgan v. Columbus et al., 12 Dec., 121, 128, and Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St., 383.

Attention is called to the case of Caldwell v. Commissioners of Cuyahoga County, 62 Ohio St., 318, which it is urged is helpful in the instant case; but which is found not well in point, as it determines principally a constitutional question. A very well-considered case, however, and one regarded as worthy of notice here, is that of Gray v. Gibson et al., 12 N. P., N. S., 673, the first section of the syllabus of which reads as follows:

“The statutory provision for recovery of damages by persons who have suffered at the hands of a mob is limited to injuries, whether fatal or otherwise, suffered from a mob attempting to lynch another, and does not embrace injuries resulting from violence by a mob having no intent or purpose to lynch.”

The foregoing is well in point and involves the construction of some of the sections of the General Code under consideration here.

In the case at bar there is no definite proof of the source from which the fatal shot came, or that at the time Davis fell mortally wounded the mob had any object or aim other than to burn, pillage and shoot aimlessly in its drunken frenzy, and for this reason the olaintiff failed to maintain the action.

Therefore, in view of all the foregoing, it must be held that the court below properly arrested the case from the consideration of the jury, and the judgment will be affirmed.

Judgment affirmed.

Pollock and Metcalfe, JJ., concur.


author: Ferneding, J.

text:
    Harshman v. The Board of Commissioners of Greene County.

      Ditches—Living streams—Division into two separate channels— Remedy of landowner where commissioners are without jurisdiction.

    1. The authority of county commissioners does not comprehend the power to divide the waters of a living stream into two separate channels. When an alteration in the channel of a living stream is made under Section 6443, General Code, provision should be made for tributaries and laterals emptying into the new channel at a convenient point near the place or places where such tributaries or laterals empty into the original stream.
    2. Where the board of county commissioners is without jurisdiction and the want of jurisdiction does not appear upon the face of the ditch proceedings, the remedy of the landowner affected is by way of an original action in equity for injunction.
    (Decided November 5, 1917.)
    Error : Court of Appeals for Greene county.

      Messrs. Hagan & Hagan; Mr. Charles S. Darlington and Mr. Marcus Shoup, for plaintiff in error.

      Mr. W. L. Miller and Mr. H. D. Smith, for defendant in error.
   Ferneding, J.

Plaintiff, John F. Harshman, is the owner of certain farm lands in Beaver Creek township, Greene county, through which Beaver Creek, a living stream, flows in a southeastwardly direction. Another living stream called Gray’s Run also enters plaintiff’s land, and flows into Beaver Creek near the northern end of plaintiff’s land.

It appears that, in the year 1913, upon petition of certain landowners, the board of county commissioners of Greene county ordered the improvement of Beaver Creek by straightening, widening, deepening and changing the same through and for several miles above and below plaintiff’s lands. The plaintiff was assessed a large amount for said improvement, which has been constructed upon the line of the original channel of Beaver Creek through plaintiff’s lands, but the same has not been fully completed below plaintiff’s farm. Subsequently, on November 11, 1916, upon petition of landowners above plaintiff’s lands, the commissioners ordered the construction of an improvement by an alteration to be made in the channel of Beaver Creek. This contemplated a new channel, beginning a short distance above the outlet of Gray’s Run in plaintiff’s land, running thence roughly parallel to the old channel of Beaver Creek, and at no point more than 250 feet distant therefrom. The stream was to extend through plaintiff’s lands, on the south side thereof, thence over the land of George M. Shank, and finally to rejoin said former channel at a point about one-half mile from the beginning of said new or altered channel. It also appears that the board of county commissioners in the construction of said improvement intend to fill up the old channel immediately above Gray’s Run in plaintiff’s land and thereby divert the upper waters of Beaver Creek into the new channel. This would leave the waters from Gray’s Run to continue in the old channel through plaintiff’s land. The result would be to perpetuate two separate and distinct channels in close proximity to each other for more than 1,000 feet over plaintiff’s land, and thus impose a substantially new burden upon him.

It is contended upon behalf of plaintiff that the county commissioners have no jurisdiction under the statute to provide for the proposed alteration of Beaver Creek by the establishment of said additional channel.

We have reached the conclusion, after a careful consideration of the statute and the decisions, that the authority of the county commissioners does not comprehend the power to divide the waters of a living stream like Beaver Creek into two separate channels. When an alteration in the channel of a living stream is made, under Section 6443, General Code, provision should be made for tributaries and laterals emptying into the new channel at a convenient point near the place or places where such tributaries or laterals empty into the original stream.

We are of the opinion that the statute does not justify the carrying of the tributaries in a separate channel as contemplated in the present improvement. The principle announced in the case of Commissioners of Greene County v. Harbine, 74 Ohio St., 318, justifies us in applying a strict construction of Section 6443, General Code, as applied to living streams.

The defendant county commissioners in their answer allege that the plaintiff in the original ditch proceedings appealed to the probate court upon the question of compensation and damages; also upon the question of the location of the proposed alteration and the practicability of the route; and that the sum of $1625 was allowed the plaintiff for compensation and damages. The other questions were decided in favor of the commissioners. The commissioners further allege that no appeal or error was prosecuted from said judgment of the probate court, and that in consequence thereof the plaintiff has had his remedy and is estopped from the present proceedings.

We think this is the most serious question in the case. We have reached the conclusion that were the board of county commissioners without jurisdiction, and the want of jurisdiction not appearing upon the face of the ditch proceedings, the remedy of the landowner affected is by way of an original action in equity for injunction. We are therefore of the opinion that the plaintiff was entitled to an injunction against the construction of said alteration or new channel of Beaver Creek over and across his said lands.

Decree accordingly.

Kunkle and Allread, JJ., concur.


author: Hughes, J.

text:
    Ropp v. Board of County Commissioners of Hardin County et al.

      Mechanic’s lien — Subcontractor on fund—Principal contractor discontinues work.

    A laborer who contracts to do and does perform certain of the labor required in the construction of an improvement under a subcontract with the principal contractor is entitled to a lien upon 'the building fund in the hands of the owner notwithstanding the principal contractor without notice to said laborer, who continues his labor, has sublet to> a third party that portion of his contract including such labor, or has suffered the owner' to contract directly with said third party for such portion of the improvement, even though a portion of such labor is performed' after such third party has begun the discharge of his contract, he having received, the benefit of such labor.
    (Decided November 17, 1917.)
    Error: Court of Appeals for Hardin county.

      Messrs. Price & Price, for plaintiff in error.

      Mr. Donald F. Melhorn and Messrs. Stickle & Cessna, for defendant in error.
   Hughes, J.

The board of county commissioners entered into a contract with Anstine & Connor for the improvement of the Reigel Free Turnpike in Jackson township, Hardin county, Ohio. In August, 1915, Anstine & Connor entered into a verbal contract with Albert Ropp, the plaintiff, to do certain hauling for this improvement at an agreed price of four dollars per day. Plaintiff in the execution of this contract hauled on dates running from August 10, 1915, to September 1, 1916, to an extent which by the terms of his contract amounted in value to $158.95. Of this amount $32.35 is claimed to have accrued on work done after an alleged subcontract had been entered into between Anstine & Connor and Dalton Hord for the carrying on of this same improvement.

The plaintiff filed proper notices, and perfected a lien within the statutory time from the date of the last hauling, but it is contended by the defendant Hord that this perfected a lien only for the $32.35, upon the theory that labor in value to this amount was done while Hord was executing his contract, and the balance was done under an independent contract between Anstine & Connor and the plaintiff Ropp.

This theory of Hord is presented as an issue by the averments of his answer, which are denied by the plaintiff.

Whether Hord be considered as a subcontractor undertaking to complete the work covered by the original contract between the commissioners and Anstine & Connor, or as an independent contractor with the commissioners, it may be said that in either event what he undertook to do was to complete the work that was originally contracted to be done by Anstine & Connor.

It is clear that the plaintiff began the execution of his contract for hauling, and from all that appears in the evidence he had no reason to believe when he began his work in the spring of 1916 that he was but completing the undertaking that he had originally contracted to do, no evidence being offered tending to show that he had any reason to believe that the work which he had already done in the execution of this contract should be considered as a past transaction, or that the work he was finishing was to be paid for in any other manner than the work which he had already done.

As was said by Judge Spear in the case of Vernon, Admr., v. Harper et al., 79 Ohio St., 181, 187: “The policy of the state with respect to the claims of laborers and material men to be compensated for their work and material out of the structure to which their work and material have contributed is indicated by the statute as to liens and has been clearly defined in a number of decisions in this and other courts. The statute should be liberally construed in order to carry out the purpose of the general assembly in its enactment, the legislation being highly remedial in character.” .

Following the thought expressed by this same jurist, at page 188, it may well be said that Hord finished the work, that was to have been done by Anstine & Connor, through the aid of this plaintiff, who furnished his labor, acting in good faith, in compliance with his contract originally entered into with the principal contractor, and his contribution to the work thus accepted by Hord enabled Hord to complete the work contemplated by the original agreement.

To deny plaintiff the advantage of his outlay would be to permit the mere letter to override and defeat the plain spirit and purpose of the statute.

Entertaining these views, we hold that the plaintiff is entitled to a lien on the fund for the full amount of his claim. A decree may be drawn accordingly.

Judgment reversed and judgment for plaintiff in error.

Kinder and Crow, JJ., concur.


author: Gorman, J.

text:
    The State, ex rel. Campbell, Pros. Atty., v. Ballard.

      Statute of limitations—Bureau of Inspection and Supervision of Public Offices—Cause of action founded on report—Statute of limitations begins to run, when.

    The special provisions of Section 286-3, General Code, that no cause of action on any matter set forth in any report made under authority and direction of Section 286, General Code, shall be deemed to have accrued until such report is filed with the officer or legal counsel whose duty it is to institute civil actions for the enforcement thereof, and that all statutes of limitations otherwise applicable thereto shall not begin to run until the date of such filing, apply in a case founded upon a report filed after the taking effect of such provisions. This is true despite the fact that the illegal payments of public moneys were made before the enactment of Section 286-3. The legislature by the enactment of Sections 286, 286-1, 286-2 and 286-3, General Code, not only created a new right, but also provided therein a new remedy for this new right, and that the statute of limitations against this cause of action to recover an illegal or unauthorized payment of public moneys should not begin to run until the filing of the report by the state officials.
    (Decided May 28, 1917.)
    Error: Court of Appeals for Hamilton county.

      Mr. John V. Campbell, prosecuting attorney, and Mr. Smith Hickenlooper, Mr. Henry G. Hauck and Mr. Louis Capelle, assistant prosecuting attorneys, for plaintiff in error.

      Messrs. Little ford, James, Ballard & Frost, for defendant in error.
   Gorman, J.

In the coilrt of common pleas a demurrer was filed to the petition of relator, on the grounds that the relator had no legal capacity to sue; that there was a defect in parties plaintiff; that the action was not brought within the time limited for the commencement of such actions; and that the petition did not state facts sufficient to constitute a cause of action. The demurrer to the petition was sustained on the ground that the action was barred by the statute of limitations — the six-year statute — and the relator not desiring to plead further judgment was rendered in favor of defendant for costs.

The relator is in this court asking for a reversal of this judgment.

In his petition the relator sets out that the action was brought by the state of Ohio for the use and benefit of Hamilton county, in substance setting out that from January 1, 1908, to January 1, 1910, the defendant was the solicitor of the city of Cincinnati, and that during said period John M. Thomas, Jr., was one of the assistant city solicitors and was designated to act and was acting during said period as the prosecuting attorney of the police court of the city of Cincinnati; that the board of commissioners of Hamilton county appropriated each year during the said two years eight hundred dollars for the purpose of paying the salary of the police court prosecutor, without designating the name of the person to whom said money was to be paid; that the defendant Edward M. Ballard collected from Hamilton county on account of said appropriation the sum of $1,399.94, in monthly installments, between May 7, 1908, and January 15, 1910, inclusive; that after the termination of the services of said Thomas he presented a claim to the commissioners of Hamilton county for the sum of $1,400, with interest, on account of his services as prosecuting attorney of the police court, and claimed said sum as compensation for said services; that the claim was rejected, and upon the final hearing of the case in the supreme court of Ohio on January 20, 1914, said Thomas was awarded the full amount of the claim made by him, with interest. The petition further avers that on April 8, 1915, after said cause had been decided, the Bureau of Inspection and Supervision of Public Offices of the State of Ohio made a finding for the recovery of said moneys paid to said Ballard, and in such finding it was held that said Ballard should return to the treasury of Hamilton county said sum of $1,399.94, with interest; that said Ballard refused to make a refunder of said sum or any part thereof; and that thereupon this action was brought to recover said sum.

The prosecuting attorney instituted this action by-virtue of Section 2921 of the General Code, and Sections 286, 286-1, 286-2 and 286-3, General Code (103 Ohio Laws, 506, 507, 508 and 509).

Section 286, as amended May 3, 1913 (103 O. L., 507), provides that the report of the examination (made by the Bureau of Inspection .and Supervision of Public Offices) shall set forth in such detail as may be deemed proper by the bureau, the result of the examination as to any public moneys which have been illegally drawn from the public treasury, or illegally expended, and shall be filed with the prosecutor of the proper county.

Section 286-1 provides that the civil action provided for in Section 286 may be heard and determined in any court having jurisdiction of the amount involved, and having jurisdiction to afford the remedy prayed for.

Section 286-3 provides that no cause of action on any matter set forth in any report made under authority and direction of Section 286,. General Code, shall be deemed to have accrued until such report is filed with the officer or legal counsel whose duty it is to institute civil actions for -the enforcement thereof, and that all statutes of limitation otherwise applicable thereto shall not begin to run until the date of such filing.

By the provisions of Section 2921, General Code, it is made the duty of the prosecuting attorney to bring an action to recover any public moneys illegally drawn from the public treasury; and by the provisions of the sections just cited (286, 286-1, 286-2, and 286-3), it is also made his duty to commence an action for the recovery of moneys illegally withdrawn from the public treasury.

It would appear from the averments of the petition that such • payment made to the defendant herein was on January IS, 1910, and if Sections 11222 and 11236, General Code, apply, then it would appear that the action was barred on January 15, 1916. This action was not commenced until April 27, 1916.

We are of the opinion, however, that the special provisions of the code, Section 286-3, being applicable to claims of this character, would apply to this case, rather than Sections 11222 and 11236, above cited. It appears to us that the legislature not only created a new right by Sections 286, 286-1, 286-2 and 286-3, but also provided therein that all statutes of limitations otherwise applicable thereto shall not begin to run until the date of the filing of the report by the Bureau of Inspection and Supervision of Public Offices. In other words, they provided a new remedy for this new right, and also that the statute of limitations against this cause of action to recover the illegal or unauthorized payment of public moneys should not begin to run until the filing of the report by the state officials. This report having been filed on April 8,-1915, if we are correct in our conclusion, there would be no bar to the action until the 8th of April, 1921.

There is no vested right to a remedy in favor of anybody. The legislature may, if it sees fit, amend, repeal or alter any section of the General Code relating to the remedy, but this they cannot do so as to affect pending actions unless it is specifically so provided. Section 26, General Code, prohibits the legislature from passing any act or amending any statute which affects the remedy so as to make it applicable to pending actions, unless the act specifically provides that it shall apply to pending actions. But at the time Sections 286, 286-1, 286-2 and 286-3 were enacted by the legisláture this suit was not pending, and therefore the inhibition of Section 26, General Code, cannot apply.

There is no doubt that statutes limiting the time within which actions may be brought are statutes of repose, and relate to the remedy only. It is unnecessary to recite authorities in support of this plain proposition. And it was held in Elder v. Shoffstall, 90 Ohio St., 265, quoting from the language of the court on page 274:

“In view of the plain and positive provisions of the law, it follows that causes of actión, prosecutions or proceedings existing at the time of the amendment or repeal of statutes relating to the remedy are not exempt from the operation of such amendment or repeal.”

So that if we treat Sections 286, 286-1, 286-2 and 286-3 as amendments to Sections 11222 and 11236, these amendments, nevertheless, being applicable only to the remedy and not affecting the cause of action, cannot be invoked to bar an action which was not commenced at the time these sections were passed. . The cause of action existed, but the cause of action was not affected by these amendments, and under the provisions of Section 26, General Code, there is no reason why the statutes may not be amended or repealed so long as they do not affect pending actions, and do not affect causes of action, unless particularly specified.

But Sections 286, 286-1, 286-2 and 286-3 are not to be considered as amendments to Sections 11222 and 11236, but are really new legislation, and, under the decision of W. & L. E. Rd. Co. v. Toledo Ry. & Term. Co., 72 Ohio St., 368, it has been held that Section 26, General Code, does not apply to new legislation.

It is claimed by counsel for defendant in error that the statute of limitations which governs this action is one which was in force at the time the cause of action accrued, to-wit, January IS, 1910. But as we have stated, this cause of action, which is a new one in favor of the state, did not accrue until the state officials had filed their report with the prosecuting attorney.

Numerous authorities are cited by counsel for defendant in error in support of his contention that ..Section 11236, General Code, applies to this action. But an examination of the history of this legislation will disclose that this section was originally Section 4974, Revised Statutes, and was repealed when the legislature passed the General Code, February 14, 1910. Section 11236 was then substituted for Section 4974, Revised Statutes. Section 4974, Revised Statutes, contains the provision that the statute of limitations in force when the action accrued shall be applicable to such cases according to the subject of the action and without regard to the form. The legislature in repealing Section 4974, Revised Statutes, and substituting therefor Section 11236, General Code, omitted this provision entirely from the code. So that the decisions cited by counsel for defendant in error, in support of his contention that Section 4974, Revised Statutes, applies to this action, were all rendered at the time when Section 4974, Revised Statutes, was in full force and effect. We are unable to see anything in the provisions of Section 4974, Revised Statutes, as amended, Section 11236, General Code, or in Section 26, General Code, which would preclude the legislature from providing separate legislation for the creation of the new right and new remedy in favor of the public against any person who received any money illegally from the public treasury.

Such being the conclusion of the court, we hold that the common pleas court erred in sustaining the demurrer to the petition, and the judgment is therefore reversed.

Judgment reversed.

Jones, P. J., and Hamilton, J., concur.