text:
    PAYMENT AS AN AFFIRMATIVE DEFENSE.
    [Circuit Court of Hamilton County.]
    Susan J. Lord et al v. Isaac Graveson et al.
    Decided, May 16, 1904.

      Action on an Account — General Denial — Payment as an Affirmative Defense — Burden of Proof — Charge of the Court — Pleading.
    1. While it is necessary to aver non-payment of a debt in order to show a breach of the contract, proof of non-payment not being required, proof of payment is not permissible unless specially pleaded.
    2. Where the plaintiff and defendant have been in the habit of exchanging accommodation notes, and there have been other transactions between them in which the plaintiff paid to the defendant, on account or on notes given in settlement of an account, out of the proceeds of such accommodation notes, such payment constitutes a final credit although the accommodation note is not paid when due.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   This was an action upon an account under Section 5086 of the Revised Statutes in which the plaintiffs in error filed a general denial. Two alleged errors may be considered together:

First. That the court erred in charging the jury that payment is an affirmative defense, and the burden of proof is on the defendants.

Second. That the court erred in refusing to allow the defendants to cross-examine the plaintiff upon the question of payment.

The argument is that the averment of a certain amount due upon an account, and that there are no credits thereon, includes the averment that the account is unpaid, and that, therefore, under a general denial, evidence of payment should be received.

In the case of Lent et al v. N. Y. & M. T. Company, 130 N. Y., the syllabus contains this proposition:

“In an action upon an alleged indebtedness an allegation in the complaint of non-payment is essential. This is not affected by the rule that payment must be pleaded as an affirmative defense, and can not be proved under the general issue, but the rule simply modifies the general rule of pleading so that the averment of payment is not put in issue by a general denial. ’ ’

In the case of Melone v. Ruffino, 62 Pacific, 93, the Supreme Court of California held:

“Where a plaintiff has proved the existence of the debt sued on the onus is on defendant to prove that it has been paid.”

Judge Swan, in his work on “Pleading and Precedents,” page 246, says:

“Under the general issue at common law, any facts tending to show that, when the action was brought, the plaintiff had no subsisting cause of action, might be introduced in evidence— such as payment, release, accord and satisfaction, etc.; whereas, under the code, the facts themselves, and all the facts alleged in the petition are controverted by the general denial; and if, notwithstanding the existence of those facts, something transpires afterwards which avoids or discharges the cause of action alleged in the petition, then a general denial is not only false, but such facts can not be given in evidence under it. ’ ’

On page 188 he says that an allegation that a specific sum on an account or note is due includes the allegation that the claim is a subsisting, existing debt, and is unpaid. It would seem, therefore, from these authorities that while it is necessary to aver non-payment of the debt in order to show a breach of the contract, yet proof of the same is not required, and that in order to prove payment it must be specially pleaded. At all events, the plaintiffs in error were not prejudiced for the reason that on January 23, 1901, they filed an additional answer in which they set up payment by their co-defendant John Car-lisle, and afterwards they had abundant opportunity and did cross-examine the plaintiff upon the subject of payment.

The giving of Charge No. 12, requested by the plaintiff and excepted to by the plaintiffs in error, is another ground of error, and is as follows:

“If the jury believe that some part of the plaintiff’s claim for work and labor was paid in cash by John Carlisle, but that at the time of such payments John Carlisle was indebted to the plaintiff for money or notes which said Carlisle had discounted in a sum as great or greater than the amount of such payments, and if the jury believe that said Carlisle received as much cash and notes from Graveson for the purpose of meeting his notes to Graveson given on account of the contract as he gave him cash and paid notes on account of the contract, or if the jury believe that Carlisle received from Graveson as much or more cash and notes between the date of his contract and the date of Carlisle’s agreement as. he gave Graveson during said time in cash or notes which were paid, and the jury is unable from the preponderance of the testimony to say how many and which of the notes and items of cash on either side are connected with the contract, then the defendants are not entitled to any credit on the account for work and labor sued for in this action.”

It is claimed by counsel that this charge contains three distinct propositions, neither of which is sound. But we think that a fair construction limits it to two. The first five lines assume that payments were made by John Carlisle, but that if he was indebted to plaintiff for money and notes in a sum as great or greater than the amount of such payments, the defendants would not be entitled to any credit on the account. Standing alone, this would be clearly erroneous. Payment itself implies a discharge of the debt, and it is immaterial that the defendant at the same time was owing the plaintiff an equal or greater amount upon other obligations. But the next four lines of the charge were intended to qualify this statement, by showing that Carlisle received as much cash and notes from Graveson for the purpose of meeting his notes to Graveson given on account of the contract as he gave him cash and paid notes on account of the contract. The defect in this qualification consists in not limiting it to the time of any particular payment and embracing all the transactions pertaining to the account. If, when a note given in settlement of the account became due and was renewed for a sum less than the original amount and the difference was paid by Carlisle out of his own funds, it constituted a payment to that extent, notwithstanding a subsequent renewal note was given for the original amount. For example, when the note for $1,800 became due — September 19, 1891 — it was renewed by giving two notes of $875 each, the difference of $50 being paid by John Carlisle. This was a final payment of that sum, although in renewing either of the $875 notes it may have been increased by that amount or more. There are many such transactions shown in the record, as Carlisle and Graveson were exchanging accommodation notes, not only during the life of this contract but for some time prior thereto. It was, therefore, prejudicial error in giving the first proposition contained in this charge, although no objection can be found to the last one.

A like error occurred in the general, charge at page 812 of the bill of exceptions, to-wit:

“Nor is the mere passing of the actual money by John Car-lisle to Graveson, and it credited on the account, absolute payment, if John Carlisle by some note or other paper got some money or the same amount and subsequently never paid such note or obligation except by renewal. If, however, when John Carlisle gave Graveson money or a note, and Graveson accepted the money or note as payment or satisfaction, or Graveson then gave his note or obligation as a separate or independent loan, looking solely to the note or obligation for payment, the same would be a payment and extinguishment of the debt. ’ ’

If money was.given by Carlisle to Graveson and credited on the account, the fact alone that Carlisle owed Graveson upon some other obligation did not destroy the credit as a final payment.

The record discloses that when notes were renewed by Carlisle, there was an exchange of notes — Graveson giving to Carlisle notes for the same amount. It is claimed that when this was done, that Carlisle was entitled to use the note received by him as he might see fit, unless at the time some restriction was imposed. An exchange of notes without any limitation upon the use of the same, vests the title to the respective notes in the holder, one being the consideration for the other, and when ■discounted the proceeds can be applied as the holder may direct. If Carlisle paid any of such proceeds to Graveson upon the account, or upon the notes given in settlement of the account, it constituted a final payment on account, although. Carlisle failed to pay his note when due.

John C. Healy, for plaintiff in error.

Stephens, Lincoln & Stephens, contra.

Counsel for defendants in error direct our attention to entries in Carlisle’s books, showing that certain notes were given expressly to take up or renew other notes given in settlement of the account, but there are many other entries which fail to show for what purpose the exchange of notes was made except for mutual accommodation. No error of law is predicated on this view of the case, but that the verdict is against the weight of the evidence.

At page 636 of the bill of exceptions, the plaintiff was asked:

“What was said between you and John Carlisle at any time, when you received a note from him, any of these notes that you have testified to?
“A. There was not anything said at all. If they were paid the understanding was we would credit him with the amount. No agreement about it.”

If, therefore, nothing was said at the time, and no understanding was otherwise had as to the use of the notes, then Carlisle could use the- proceeds as he wished, even in payment of notes given to Graveson.

The trial court reduced the verdict of the jury by the sum of $805.59, which counsel for defendants in error claim embraces four items, making in all $809.59. Upon the same theory that justifies the allowance of these items, we think the verdict should have been reduced by the items of one hundred dollars, sixty-seven dollars, two of fifty dollars each, one hundred and seventy dollars, and one hundred and thirty-six dollars. To this extent, the verdict was manifestly against the weight of the evidence, and the court erred in giving Special Instruction No. 12.

The judgment will therefore be reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: Burrows, J.

license: Public Domain

text:
    CONSTRUCTION OF WILL.
    [Circuit Court of Trumbull County.]
    C. W. Owsley v. Thomas Price et al.
    Decided, October Term, 1903.

      Wills — Election of Widow to Take Under the Will of Her Husband.

    Testator at the time of the execution of his will and at his death, was the owner of the undivided nineteen twenty-eighths of fifty-one and one-half acres of land, and his wife was the owner of the other undivided nine twenty-eighths thereof, they having obtained title by deed executed to them jointly, the property constituting their homestead. He was also the sole owner of two other small parcels of land. His will provided that his widow should have a life estate in all of his real property, and at her death it was to be sold and the proceeds divided as directed in the will. The widow elected in the probate court to take under the will. Held: That the widow did not, by such election, waive her right to the fee in the nine twenty-eighths of the fifty-one and one-half acres; that she had a legal right to devise the same and that such devise would be upheld. Hibbs v. Insurance Co., 40 O. S., 543, distinguished.
    Cook, J.; Laubie, J., concurs; Burrows, J.; dissents.
    Appeal from the Court of Common Pleas of Trumbull County.
   This is an action for partition of real estate and comes into this court on appeal.

The question involved is the construction of the will of Thomas Price and the effect of an election by Mary L. Price, his widow, in the probate court, to take under the will.

At the time of making the will, and also at the death of-Thomas Price, he and his wife were the joint owners of fifty-one and one-half (51 1-2) acres of land in Trumbull county, he being the owner of nineteen twenty-eighths, and she nine twenty-eighths. These premises were their homestead, and they had jointly occupied it as such for a number of years, it being an ordinary small farm. They obtained title through a joint deed executed to them. Thomas Price at the same time was also the sole owner of two small tracts of land, one containing one acre and the other one-fourth of an acre.

His will provided as follows:

“Item 3d. I give and devise all my real property which I do now .possess, or may possess at the time of my death, containing at the present time the homestead of fifty-one and one-half acres, more or less, recorded in Trumbull County Records, Vol. 105, page 36, and Vol. 139, pages 6 and 7; also as recorded in County Records, Vol. 142, page 26, containing one acre of land; also as recorded in County Records, Vol. 147, page 336, containing one-fourth of an acre of land, to my beloved wife, Mary Louise Price, during her natural life, not to be sold nor exchanged by her. Then after her death one year, it is my wish that my executor hereinafter named shall cause all of the said property, my real property as above mentioned, also any other that I may possess at the time of my death, to be sold as he may see fit and the proceeds to be by him, my executor, equally divided between the eight following named persons.”

The widow, Mary L. Price, on being cited to appear in the probate court, to elect whether or not she would take under the will, elected in court to take under the will.

The widow, Mary L. Price, after such election, made a will by which she devised her nine twenty-eighths interest, or undivided part, of said fifty-one and one-half acre tract to Mary Jane Owsley and her husband, C. H. Owsley, as she expressed it in the will, “as a reward for kindness and care that they have extended to me in years past, asking them that at my death they will see that I have suitable burial by the side of my deceased husband, Thomas Price.”

C. H. Owsley succeeded to all the rights of Mary Jane Owsley in said premises under such will, if she had any. The Owsleys were not included in the eight beneficiaries named by Thomas Price in his will.

It is claimed that this case is ruled by Hibbs v. Insurance Company, 40 O. S. R., 543. We do not think so. In that case the provision of the will was “I give and devise to my wife in lieu of dower the farm on which we now reside, containing about two hundred acres, during her natural life.” Also, the will gave her a large amount of stock on the farm, bank stock, etc., and the clause concluded with the words, “At the death of my said wife, the real estate aforesaid, I give, devise and bequeath to my grandson, William Miller.” Eighty acres af the two hundred had come to the wife by descent; was her sole property and had been so incorporated with the farm for many years as to entirely lose its identity as a separate tract. The widow elected to take under the will, and the court held by so doing she relinquished her fee in the eighty acres under the doctrine as stated in the case:

“That if a testator has effected to dispose of property which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him must make good the testator’s attempted disposition; but if, on the contrary, he chooses to enforce his proprietary rights against the testator’s disposition, equity will sequester the property given to him, for the purpose of making satisfaction out of it to the person whom he has disappointed by the assertion of those rights.”

And, again:

“It is a well settled principle of equity that where a will assumes to give to one of its beneficiaries property belonging to another person for whom provision is likewise made in the will, the latter is bound to elect whether he will claim the property so disposed of or take the provision made for him in the will, and that he can not have both. ’ ’

While there is no question but what this is the general doctrine as stated in the authorities; yet they all agree that the rule is a harsh one, and in Church v. Church, Executor, et al, 57 O. S. Rep., 561, it is said:

“But it is also well settled that the language of the will is expressive of the intent to give another’s property must be unequivocal. ’ ’

If the provision in question, taken in connection with the whole will, will reasonably admit a construction not involving a disposition of such property, that construction must prevail. In order .to create the necessity for an election, there must appear on the face of the will itself a clear, unmistakable intention on the part of the testator to dispose of property, which is in fact not his own. The language must be so clear as to leave no doubt as to the testator’s design, as in tbe Hibbs case where the testator gave to the wife in unequivocal words the whole farm, “the farm on which we now reside,” and which was at his death to go to the grandson. The necessity for an election can not arise from an uncertain or dubious interpretation of the will.

In Church v. Church, supra, the testator held a number of insurance policies upon his life. Two of them were payable to his wife upon his death, she being named as beneficiary, while several others were payable to him or his estate. The language of the will was: “I direct that my executor collect and realize on all my life insurance policies which I hold on my life and distribute the proceeds in accordance with the terms of my will and codicil.” The will and codicil provided that the wife was to receive during her life one hundred dollars per month, so long as her two daughters remained unmarried, and then seventy dollars per month, and also to have the use of residence free of taxes and assessments during her life, and in addition thereto one thousand dollars in cash upon his decease. The court held that, although all the policies of insurance were in the possession of the testator at the time he made his will and up to his death, yet it could not be said that he intended to bequeath the two policies in which his wife was named beneficiary, and although she elected to take under the will in the probate court, and persisted in her election, yet the proceeds of the two policies should go to her.

Spear, Judge, in the opinion, says:

“The subject-matter is his policies — my policies, is the phrase. The words following ‘which I hold’ would, in common parlance, signify manual possession, but the expression is subordinate to that which precedes, and, taken in connection with it, implies possession of that which was his. Nor is the result different if a technical legal meaning is given the word ‘hold.’ Indeed, it signifies tenure. But tenure can not exist in favor of one respecting that in which he has no property interest. If the question were as to a devise of land in this form: ‘All my land of which I have possession,’ would any intelligent mind assume that the will evinced a purpose to convey land of another which might at that time happen to be in tlie possession of the testator? Surely not. The canons of construction will not permit a provision clearly disposing only of property in the possession of the testator of which he is the owner to be held to include property in his possession which belongs to another.”

Again, he says:

“The ease at bar is-dissimilar from Hibbs v. Insurance Company, 40 O. S., 543, relied upon in argument, in this important particular. There the description of the property of the wife was clearly defined, and it was clearly included in the devise; here it is only not clearly included, but is, as we think, clearly excluded by the terms of the codicil.”

In the case under consideration the property was an undivided interest in land. The husband’s possession would also be the wife’s possession. The provision of the will is:

“I give and bequeath all my real property which I do now possess or may possess at the time of my death to my beloved wife, Mary Louise Price, during her natural life, not to be sold nor exchanged by her; then after her death one year, it is my wish that my eyecutor hereinafter named shall cause all of the said property, my real property, as above mentioned, also any other that I may possess at the time of my death, to be sold as he may see fit, and the proceeds to be by him, my executor, equally divided betwen the eight following named persons.”

The testator, it seems to us, took special pains only to include his own property. The provision is “my real property which I possess or may possess at my death.” Then again his executor is ordered to sell all of the said property, my real property, not his wife’s real property, but Ms oivn real property, which he possessed of which he had the tenure.

In construing wills there is one rule applicable to all wills alike, and that is, that the meaning and intention of the testator is to be ascertained from the language of the' will itself, so that but little aid is given in one case by the construction adopted in another.

In order, therefore, to make this case on all fours with Hibbs v. Insurance Company, it would be necessary to exclude from consideration the words “my real property which I do now possess or may possess at the time of my death,” and to reject the inference connected therewith from the reference to the recorded deed of the farm in question, which shows that his real property consisted only of an undivided interest therein. Indeed, not a shadow of resemblance could be made between that case and this, were it not for the words “Containing at the present time the homestead of fifty-one and one-half acres, more or less.” These words, however, are themselves equivocal, and taken in connection with the other words of the sentence, “I give and devise all my real property which I do now possess,” they are made still more equivocal, and the only consistent interpretation that can be put upon them is that the testator meant and intended to say “contained in the homestead,” instead of “containing” the' homestead. At all events, it isimpossible to say that the testator clearly intended to devise to his wife her property — property he did not possess as his own — in using the words of description contained in this item. In one sense he was in possession of his wife’s share of the farm; that is, as tenant in common, but the words “which I do now possess or may possess at the time of my death,” does not, and can not, be held to refer to and include property thus held, because the testator himself limits their application to property owned solely by himself: “I give and devise all my real property which I do now possess;” and “my executor hereinafter named, shall cause all of the said property, my real property above mentioned,” to be sold.

This intent, so unequivocally expressed by these words, to include in the devise only that part of the real property which he himself owned, • should be the controlling factor in the interpretation of this will.

In the case of William Melick and wife v. Abram Darling, II Ohio Rep., 343, the syllabus of the case is:

“To create a case of election there must be a plurality of gifts or rights, with an intention expressed or implied, of the party who has a right to control one or both, that one should be a substitute for the other.”

Owsley & Gillmer, for plaintiff.

Arrel, McVey & Taylor, H. A. Zimmerman and Smiley & Weiss, for defendants.

It is true that at that time the syllabus was not necessarily the law of the case, but Wood, J., on page 350 of the opinion in the opening sentence, uses the same language.

That was a case in which the testator and the devisee were tenants in common. The language of the will was: “I also give to my grandson, Jeremiah Beatty, the . southwest quarter of section seven in township five and range ten.” In the same will provision was made for Abram Darling. The testator and Abram Darling were tenants in common of the southwest quarter of section seven in township ten devised to Jeremiah Beatty, the patent having been issued to both of them. The court held that it was not the intention of the testator to devise both interests, and that Abram Darling was not required to surrender his moiety in order to retain the property devised and bequeathed to him by the will.

In Rancliffe v. Parkyns, 6 Dow, 185, cited in note to Dillon v. Parker, 1 Swanston Rep., 394, Lord Eldon said that “It is difficult to apply the doctrine of election where the testator has some present interest in the estate disposed of, though not entirely his own.”

In French v. Davies, 2 Ver. Jr., 578, it is said:

“Before you can prevent the legal right, the intention must be perfectly clear. The intention must be so clear that a judge can say it is impossible the testator could mean the defendant to have both.”

Decree for plaintiff, ordering partition of premises as prayed for.

Burrows, J., dissents.

Burrows, J.

I am not able to concur in the conclusion reached by the majority of the court.

' If it clearly appears from the will that the testator, Thomas Price, intended and assumed, in the devise of the homestead, to dispose of the interest of his wife therein, then the petition of plaintiff should be dismissed.

It is not suggested that the election of Ms widow, Mary L. Price, to take under the will was not duly and understanding^ made or that the plaintiff stands on any higher or better ground than did Mary L. Price. Hence, the contention is necessarily limited to the question whether, by the terms of this will, Thomas Price made a disposition of the entire homestead, consisting of fifty-one and one-half acres.

It is held by the majority of the court that a doubt may be entertained as to the meaning of the language: “I give and devise all my real property which I do now possess or may possess at the time of my death, containing at the present time the homestead of fifty-one and one-half acres, more or less, recorded,” etc., and that this language is consistent with an intention to devise only a two-thirds undivided interest therein, although the testator was and for many years had been, presumably in possession of the whole as the family homestead.

It must be conceded that apt and unequivocal language is employed to designate and describe the entire homestead lot as included in the devise. Had the wife been sole owner of it instead of part owner, no question or doubt would exist as to the intention of the testator to make disposition of the lot and the whole of it.

It is said that the use of the words “my real property,” containing the homestead, etc., indicates an intention to dispose only of such interest as testator had in the fifty-one and one-half acres. It will be observed, however, that the same phrase is also applicable to the one-acre lot and the one-half acre lot of which he was sole owner, and which is also devised in the same item to his wife.

When we consider the evident object and purpose of the testator in making this will, all doubts as to the meaning of the alleged ambiguous words and phrases are dispelled. The testator gave his wife a life estate in all real property which he then had or which he might thereafter acquire including the fifty-one and one-half acres constituting the homestead, upon the express limitation that none of it was to be sold or exchanged by her during her life time and that then after her death one year, all of “said property” was to be sold by his executor and the proceeds equally divided between the persons who were the natural objects of their mutual bounty.

No language could have been used to express more clearly the purpose of the testator to keep all of said real estate, including the homestead, intact, and undisposed of during the life of his wife and upon her death to have it sold and the proceeds of the entire property equally divided between his children named in the will. The intention and attempt of the testator to make a complete and final disposition not only of his own interest in the real estate described, but of the interest of his wife in the homestead is, I think, clearly and unequivocally expressed. In this state the rule of decision applicable to the facts in such case is not open to dispute. The case of Hibbs v. Insurance Co., 40 O. S., 543, is substantially a duplicate of the ease at bar in all essential particulars; and the reasoning and citation of authorities in that case conclusively settle all controverted questions in this ease. It is said that the ease at bar may be distinguished from the Hibbs ease in respect to the character of the interest of the wives in the homesteads, and in the amount devised in lieu of such interests respectively. In the ease under consideration, the wife held a joint interest with her husband, while in the Hibbs ease she held separate title in fee to 80 acres of the tract constituting the homestead, and in both cases the whole tract must pass, if at all, under the general designation “the homestead.” In the Hibbs case some importance is attached to the circumstance that the land of the wife was so situated and occupied that a “careful survey” would be necessary to determine and mark the boundary between the lands of the husband and wife; and the inference is apparently drawn from this circumstance thát there could be no just inference of intention on the part of the testator to devise under such designation only a part of the whole tract that constituted the homestead. If an obliteration or removal of the lines of demarkation are important upon the question of intention, then surely the impossibility of making any lines of demarkation, as in the case at bar, must be equally important. As to the other alleged distinguishing particular between the cases under consideration little need be said. That more ample provision was made for the wife in lieu of. her interest in the homestead in the Hibbs case can not change the rule of decision; besides it is not apparent from the record that there was any disparity in this respect. In the ease at bar the testator gave his wife a life estate in two other lots, the value of the use of which may have far exceeded her interest as widow in the estate of her husband and the value of her interest in the homestead. In respect to these two particulars and these alone, attempt is made to distinguish the case at bar from the Hibbs case; and I am compelled to say that in my opinion the authority of the Hibbs case has been ignored rather than distinguished in the decision of this case.

The conclusion reached by the majority of the court is avowedly placed upon the later case of Church v. Church, 57 O. S., 561. In that case the court found that it affirmatively appeared that the testator did not intend to dispose of the certificate made payable to his wife, and that under the circumstances the language of the will was only applicable to other certifieátes held by the testator. The learned judge in his opinion approves of the decision of the Hibbs case in respect to its conclusions of fact as well as law, and points out the dissimilarity between the cases.

The case of Melick v. Darling, 11 Ohio, 343, is also cited by plaintiff in support of his contention. The correctness of the decision in the Meliek case may be doubted since it was made by a divided court. Judge Wood, who gave the opinion, said “the ease is not so clear that he who runs may read.” But, if correctly decided, it is an authority for the defendant rather than the plaintiff. The decision is not placed on a want of clearness in the language by which the southwest quarter of section seven is devised to Jeremiah Beatty, nor on the fact that the testator held this quarter section as tenant in common with another, but solely on the ground that the “general design” of the testator as evinced by the whole will, was to make an equal distribution of his property to each class of heirs. The two grandsons, William and Jeremiah Beatty, each were given a quarter section of land; but to William he gave an undivided half, while to Jeremiah he gave a quarter section in which he also held an undivided half interest. To give one double what he gave the other was in conflict with the general scheme of the will; and therefore, a majority of the court was of the opinion that it was not clear that he intended to dispose of the interest of his co-tenant in the quarter section devised to Jeremiah.

In the ease at bar the general scheme and design of the will is in accord with the terms of the devise by which the entire homestead is disposed of, and is not consistent with any other interpretation. .

The suggestion of counsel in their brief in the Melicb case that the doctrine of election should not be applied where the testator has some interest in the property devised, was not noticed by the court in the decision of that case, and has no-support from any decision in this state.

Finally it is said that the doctrine of election in such eases is a harsh one. It would in my judgment be a more harsh and unjust doctrine to hold that a devisee to whom a gift has been made on condition that he surrenders certain of his own property to the disposition of the devisor should be allowed to receive the gift and repudiate the condition.


text:
    NEGLIGENCE IN NOT GIVING EMPLOYE A SAFE PLACE TO WORK.
    [Circuit Court of Huron County.]
    New York, Chicago & St. Louis Ry. Co. v. Robert Roe, Administrator.
    Decided, November 13, 1903.

      Master and, Servant — Place in Which Employe is at Work Rendered Unsafe Without Notice — Engineer and Yard Helper not Fellow Servants — Damages for Wrongful Death Should Be Based on Reasonable Expectancy — Charge of the Court — Jury May Consider Loss of Opportunity to Inherit Property.

    1. Under the rule that an employer is bound to use ordinary care to give his employes a reasonably safe place to work: and see that no injury is done them while working in a situation where they are unable to protect themselves, a railroad company is bound to use ordinary care to see that no cars are moved down upon a helper without notice, who, while cleaning up the yard, is working in an ash pit where he is so surrounded by cars and other obstructions that he is unable to see the track ahead.
    2. A helper in a railroad yard while cleaning an ash pit is not a fellow servant of an engineer having charge of a locomotive with a fireman under him within the meaning of Section 3365-22, Revised Statutes, and where an engineer drew his engine out upon the same track where the helper was working at the head of a sharp incline for the purpose of oiling it and allowed it to stand with brakes unset, and because of the brakes being unset, the engine moved down the track and pushed some cars against the helper, who is killed, the railroad company is responsible for the negligence of the engineer.
    3. In an action under Section 6135, Revised Statutes, for the recovery of damages for wrongfully causing the death of another, the measure of damages is the reasonable expectancy of what the family or next of kin might have received from the decedent and not the amount it is reasonably certain they would have received.

      4. Where a charge as a whole is full and fair a reviewing court will not reverse the case because of unnecessary statements of the court which do not prejudice the plaintiff in error. Thus, where, in an action for wrongfully causing the death of a helper in a yard, the court charges the jury regarding the skill, knowledge and qualifications of the men, which charge was uncalled for either by the evidence or pleadings, the reviewing court will not reverse if it does not prejudice the party seeking to take advantage of it.

      5. The loss to the children and the widow on account of being deprived of the possibility of inheriting property from the deceased which he might have accumulated during his life is one of the items that may he considered by the jury in arriving at the amount of a verdict in an action for death by wrongful act under Section 6135, Revised Statutes.
    Hull, J.; Parker, J., and Haynes, J., concur.
    Error to the Common Pleas Court of Huron County.
   This action was brought by Robert Roe, administrator of John Roe, deceased, against The New York, Chicago & St. Louis Railroad Company, plaintiff in error, to recover damages for the death of John Roe, which, it is claimed, was caused by the negligence of the railroad company, the defendant below. The trial resulted in a verdict of $2,200 in favor of the plaintiff, and judgment was entered upon this verdict, and proceedings in error are prosecuted in this court by the railroad company to reverse that judgment.

It is claimed by the plaintiff in error that the verdict is against the weight of evidence, and that there is not sufficient evidence to show any negligence on the part of the railroad company, and further, it is claimed that the evidence as disclosed by the record shows the deceased to have been guilty of contributory negligence, and various rulings of the court during the trial of the case are complained of by plaintiff in error as erroneous.

The facts upon which the case was finally submitted to the jury are, in substance, as follows:

The deceased, at the time of the accident, in October, 1900, was employed by the railroad company at Bellevue, Ohio, engaged in work by which he was known as a “helper” in and about the yards at Bellevue, among other things aiding in keeping them in order and in keeping them clean. In the yards there was what was known as a cinder pit track, which was perhaps altogether 280 feet long, running from the main or “going-out-track,” as it was called, off diagonally on a down grade until it finally ran into what is known as the pit, the bottom of which was practically level for a distance long enough to accommodate two cars. At the end of this track the pit was about three feet and a half deep and at the side of this pit was what was known as the ash pit. Locomotives were run over the ash pit and above it on tracks, and while coal was being put in from the coal house the cinders and ashes were raked out into the ash pit, and from time to time, as needed, open or gondola cars were run into the cinder pit, upon the track, and the ashes from the ash pit, immediately on the other side of the wall, were shoveled into those ears, which were pulled out and the ashes carried away.

On the day that the decedent was killed he got into the cinder pit, where the cinder pit track was between the end of a ear and a stone wall, or what was equivalent to a stone wall at the end of this pit where the cars stood. There were two cars in the pit at the time, for the purpose of being loaded with ashes and cinders. One car stood a few feet from the stone wall, the pit, as stated, being about three feet and a half deep. Roe got into this place apparently for the purpose of shoveling some coal or cinders and ashes that had fallen into the cinder pit into thé car that stood there. Another man on the other side of the wall was at the same time shoveling ashes and cinders into the car.

Roe, and perhaps others, on this morning were engaged in cleaning up the yards generally, and, in doing that, and as a part of that work, Roe had gotten down into this pit to clean it up, and was doing this with a long handled shovel which he had at the time. While Roe was in this pit, about fifteen minutes after seven that morning (the accident occurring about ten o'clock), a locomotive was run out of the roundhouse for the purpose of attaching it to a passenger train which would be due a short time thereafter. Thomas Peters got upon the locomotive as its engineer, having under him a fireman. Peters took charge of the locomotive, intending to go out on the train as soon as it came in. The train, however, was late, and did not arrive for about two hours and a half.

After Peters took charge of the locomotive, he remained on it with his fireman in the yards on this cinder pit track, the tender being about forty feet from the car in the pit nearest to the locomotive, and after he had been there about two hours, or about ten o’clock, Peters, the engineer, concluded to oil the locomotive. He did so, and ran his locomotive back seven or eight feet toward the pit and there stopped without setting his brakes, letting the locomotive stand on this track without the brakes being set, and this was the negligence complained of by the plaintiff below; and if the engineer was negligent, it is claimed the railroad company is liable under the “fellow servant” act for permitting the locomotive to stand upon this track which was laid at a grade down into the pit without the brakes being set; that, it is claimed, caused the injury complained of.

It appears by the record that shortly after Peters had run the locomotive back a few feet toward the ears, the brakes not being set, the locomotive started down this track, which was at quite a steep grade at this point, toward these two ears in the cinder pit, Roe still being at work at the farthest end of the farthest car, between that car and the stone wall, as before stated. The locomotive struck the car nearest it and pushed that back against the other, so that Roe was caught beneath the rear end of the furthermost car and the timber that lay there. His legs were first caught and he cried for help, crying out “Go ahead.” The cry was heard by various men in the vicinity, and the engineer got off his locomotive and went back to see what had happened, and undertook to pull the cars out of the pit up this grade, but was unable to start the two cars, or rather the record shows that he did not go back until he had made this attempt, and being unable to pull the ears out on a “straight pull,” he went back, and, seeing Roe’s situation, evidently thought it would be safe to back the locomotive slightly, so as to “take up the slack,” as it is called, between the locomotive and the ear and between the two ears. He thereupon went back to his locomotive, backed it up perhaps not more than six inches, but it was backed so much that it did in fact push the ears further back, and Roe was crushed between the end of the car and the wall and was killed instantly, or practically so. After backing up this short distance, the engineer started the locomotive ahead, and was then able to pull the cars out, and did so.

It does not appear that Peters, the engineer, knew that Roe was in the pit. Roe had taken no precaution himself to give any warning that he was there, or to have any notice given to the engineer. There is no positive evidence that Roe was ever in this pit before or that anybody else was ever in it, for the purpose of cleaning it out, as he was doing on this occasion. The evidence tends to show that after Peters discovered that the locomotive was moving down the grade, he apparently did all he could to stop the locomotive, but was unable to do so. His attention was first called to the fact that it was running down grade by his fireman, who shouted to him as a train was passing by that his locomotive was moving. Until then the engineer did not realize that it was moving.

It was claimed by the plaintiff below, the defendant in error, that it was negligence on the part of the railroad company, through its engineer, to permit this locomotive, without the brakes being set, to stand upon the track, which was laid at a steep grade at this point, with these two cars upon the track in the pit, and it appearing, that Roe’s injuries were due to the moving of the locomotive, that the railroad company was liable.

It is claimed on the part of the railroad company that, under this state of facts, no negligence is shown against the railroad company — no want- of ordinary care, but that the death of Roe was an accident for which the company is not liable; that all ordinary care was exercised by the railroad company.

It is urged that the company was under no duty at the time to protect Roe against such an accident as this. It is said that there is no evidence in the record that at any time prior to this Roe, or any one else, had got into this pit under these circumstances, with ears standing there, and that the railroad company had no reason to suppose or to anticipate, as an ordinary, prudent person, that any man would be in this pit subject to such a danger as this; and further, that it was negligence on the part of Roe, contributing directly to his injury, to be in the pit under these circumstances; that if he went in there, he took his own chances and assumed the risk.

It is well established by the authorities that no one is liable 'for a failure to protect a person to whom he does not owe a performance of any duty. It is also well established that an employer is bound to exercise ordinary care to give his employe a reasonably safe place to work and to furnish him reasonably safe appliances with which to do his work, and when such employe is engaged in the performance of his duties, is so situated that he can not protect himself, it is the duty of the employer to exercise ordinary care to see that no injury is done to him.

In the leading case of Lake Shore & M. S. Ry. Co. v. Lavalley, 36 Ohio St., 221, where a man was engaged at work under a ear, and while so engaged another car and locomotive ran against the car and the man was injured, it was held by the Supreme Court that the man so engaged was entitled to protection.

It is said that the railroad company had no knowledge, and that the enginer had no knowledge at the time that Roe was in this pit — no actual knowledge, and that is undoubtedly true.

There is no claim made, however, that Roe was not properly engaged in the performance of his duties upon the day he was killed. It was part of his work to clean or to help in the work of cleaning up this yard. In the yard, or a part of it, was this cinder pit which was used for the purposes stated, and being used in that way, ashes and cinders would naturally accumulate there, falling off the ears and between the cars and the ash pit. On the other side of the wall were the coal docks, where the locomotives were coaled, and in doing that work, coal would naturally and unavoidably fall into this pit in some amount, and to clean the yards, to put them in good condition and in good order, it was as necessary to clean out this cinder pit where the track was as any other part of the yard; and under general instructions and orders (there is no evidence that Roe had any special orders on that day), he had gotten down into this pit with a shovel to do this work. It seems to us that it can not be said that Roe was guilty of any contributory negligence in doing this, or that he was doing anything at this time that was out of the line of his duty, or anything improper. We are of the opinion that he had the right to presume that while he was engaged in the performance of this work, which it was necessary and proper for him to do, that he would be protected against such an injury as this. In a yard of this kind, with men working about it everywhere, here and there, at the ends of cars and on the tops of cars and under ears, on tracks level with the surface and on tracks in pits and in various ways, it was the duty of the railroad company, through its officers and employes, not to move cars as these cars were moved, without giving some warning or notice of the fact that cars were to be so moved.

After it was discovered that this locomotive was moving, no effort was made to give any notice or warning to any man or men who might be in the pit; no bell was sounded and no whistle was blown, no shouting or calling out, and it seems to us that it might have been presumed or supposed, at least, by the engineer that men might be in this pit at work at that time. There was a man working in the ash pit opposite this pit, in plain sight of the engineer, who had been on his engine for two hours and a half, and he knew these cars were run into the pit for the purpose of being loaded with ashes, and we can not say, as a matter of law, that he would be warranted in presuming that there was no one in this pit that could be injured by cars being run down into it.

Whether the engineer himself was guilty of negligence at this time in letting the engine stand without the brakes being set was a question that was submitted to the jury, and we think was a proper question for the jury to pass upon, and that the jury were warranted in finding that the engineer was guilty of negligence in so doing. The locomotive was standing only about forty feet from those ears — a heavy passenger locomotive standing upon the track laid at quite a steep grade at this point, and to oil the locomotive and run it back six or seven feet in tho direction of these cars, and then let it stand without setting the brakes, in view of all the circumstances here, it seems to us the jury were warranted in finding to be negligence. We think that it should have occurred to the engineer that a locomotive left in that way was liable to start any moment down this track, as it did so, and do the damage it did on this occasion, or similar damage to property or to life. Under the rules of negligence, it seems to us that the conduct of the engineer was not ordinary care. These cars were in plain sight and very near; men were working all about the< yards, and a man was liable to be in this pit beyond these ears as well as at any other place in the yards, and to let this locomotive stand without the brakes being set so that at any instant it might start, was not the exercise of ordinary care.

A recent decision of the Supreme Court is cited by counsel for plaintiff in error as in point in this case—the case of Erie Ry. Co. v. McCormick, 69 Ohio St., 45. The first paragraph of the syllabus reads:

“Omission of duty is not the foundation of an action unless it results in injury to one for whose protection the duty is imposed. ’ ’

We think in this case there was a duty imposed upon the company to protect Roe while he was in the performance of his work.

In this case decided by the Supreme Court, a trackman who had been in the employ of the company for many years was walking across a bridge where there was no place to walk except on the track, and a train approached him from behind. The engineer did not see him on account of a storm. The track being slippery, he was unable to get to the end of the bridge before the train overtook him, and he was killed. It was claimed that the railroad company should have made some provision for a man to walk across the bridge, or should have furnished some place for him to have stepped aside; but the Supreme Court held the company owed no such duty to him, and further found that he had been in its employ for many years as trackman and had full knowledge of the condition of the bridge, and that there could be no recovery for his death.

It does not seem to us that this case is applicable to the facts of the case at bar. Roe was engaged at the time in the performance of his duty, and to perform his duty he was required to go to a place where he could not see the engine, and while in the performance of his duty in such a place as that, doing his work there, the company owed to him a duty not to run cars or a locomotive down into the pit and crush him. We hold that the verdict was sustained by the evidence. If the negligence of the company were a doubtful question, still it would be a proper question to submit to the jury. If it were a question upon which the minds of reasonable men might differ, it would be a question that a jury should properly pass upon, and under the evidence in this case, their finding will not be disturbed by the court. In Lake Shore & M. S. Ry. Co. v. Murphy, 50 Ohio St., 135, the Supreme Court say in the last paragraph of the syllabus:

“It is the duty of a railway company to afford reasonable protection to its employes against dangers incident to their work (Railway Co. v. Lavalley, 36 Ohio St., 221, approved and followed). And if, under the circumstances of this case, a rule providing for warning was necessary, and by the exercise of reasonable care on the part of the company, that necessity could have been foreseen, it was the duty of the company to prescribe such rule. Whether it ought to have so provided or not, was a question for the jury.”

The court say further:

“The evidence as to contributory negligence on the part of deceased made a case which, at least, was doubtful, and about which different minds might differ as to the proper inference to be drawn. Such a question can not properly be determined by the court as matter of law, and should be submitted to the jury.”

On page 143 of the opinion, delivered by Judge Spear, the court say:

“Negligence is always an inference from facts put in evidence, as contrasted with a fact which is the subject of direct proof. The proof disclosed facts calling for logical, as distinct from legal, deduction. Where that is the ease, the question is for the jury, and not for the court.”

It is claimed, however, that the engineer and'Roe did not sustain such relations toward each other as to entitle Roe to bring an action aaginst the railroad company for the negligence of the engineer; in other words, that Roe was not within Section 3365-22, Revised Statutes, or the “fellow servant” act, as it is called, for the reason that Roe and the engineer were fellow servants, —that they were in the same branch of the service. We are of the opinion, however, and hold that they were not fellow servants, and that Roe came within the provisions of this section. The engineer had under him another employe (the fireman) subject to his control. Roe had no one under him or under his control. The engineers’ duties were entirely different from those of Roe; he was in the motor department of the company, engaged as engineer on the locomotive, entirely separate and distinct from Roe’s work. Roe was engaged as one of a gang of men in cleaning the yards. We think they were engaged in different branches of the service, and that therefore the negligence of the engineer, under this statute, was the negligence of the company, and the company is liable therefor. ,

We have discussed this general question in a case in this county —the case of Hill v. Railway Co., 22 C. C., 291. The opinion was delivered by Judge Parker.

It is claimed that the court erred in its charge to the jury on the question of damages and in refusing to charge as requested by counsel for the railroad company. The court was asked in request number five to give an instruction to the jury upon the degree of proof with which the damages to the next of kin of the deceased must be sustained or must be established to warrant the jury in returning a verdict for the different elements that enter into damages of this kind. The court was asked to charge as follows:

“If, under the instructions now and which shall hereafter be given you by the court, you find for the plaintiff, and so come to determining the amount of the damages which should be awarded him, the court says to you that amount must be strictly limited to the amount of pecuniary damage, that is, to the amount of money which it is reasonably certain from the testimony in this case that the widow of John Roe, deceased, and his children would have received from him had he not been killed. In arriving at this amount, you should consider his age at the time he died; how long he would have been reasonably certain to have been able to have continued to earn money as a laborer, and from this time should be subtracted the time, if any, which he was reasonably certain to have lost from sickness or increasing age. From the amount of money which you find he would have thus been reasonably certain to have earned had he not been killed, must be subtracted the amount of money which he would have required for his own clothing, board and other personal expenses, in sickness and in health had he lived, and you should consider such other facts as appear in the evidence bearing upon the amount of money which the widow and children were reasonably certain to have received from John Roe had he not been killed. "When you have thus arrived at the amount of money which the widow and children of John Roe would have been reasonably certain to have received from him had he lived, in the form which the court shall direct, you should determine what the present worth of that amount is, for the reason that if anything is paid as the result of this trial, it will be paid in a single lump sum, and as of the first day of the present term of court, whereas, if John Roe had lived, the money which the widow and children would have received from him, would have been earned and have come to them as time passed, through such a number of years as you shall find under the instructions given you, he would have been able to have worked and earned money at his occupation, which appears from the evidence in this case to have been that of a common laborer.”

This was asked to be given before argument, and was refused. The 'court, in its general charge to the jury after argument gave an instruction which was similar to this in many respects, but differed in one particular, and if the defendant below was entitled to this instruction, it was entitled to have it given before argument, as requested.

The court, in its general charge to the jury, gave this instruction substantially as requested except that it changed the phrase “reasonably certain” to “reasonable expectation,” or “might reasonably expect.” The substance of it was that instead of saying to the jury they could only allow the plaintiff the damages which were reasonably certain would ensue to the next of kin on account of the death of Roe, they might allow such damages as might be reasonably expected to follow from his death. It is urged that the instruction as requested was correct and that it was error to refuse it, and a decision of the Supreme Court is cited to sustain this contention-the case of Pennsylvania Co. v. Files, 65 Ohio St., 403, where the Supreme Court say in the second paragraph of the syllabus:

“Where prospective damages from an injury are claimed, they should be limited by the court in its charge to such as may be reasonably certain to result from the injury. ’ ’

This was an action for personal injuries where death did not ensue, and the court held that for the prospective damages to plaintiff in the way of pain, or otherwise, the trial court should have said to the jury that plaintiff could only recover for that which it might be reasonably certain would result from the injury.

In our judgment, this is not the rule when applied to a death case, under the statute. This action is brought under Section 6135, Revised Statutes, and were it not for this statute, no action could be maintained for the death of a person. The action is unknown at common law; it is purely a statutory action, and the personal representative of the deceased is entitled to recover for the benefit of the next of kin, just as the statute says he is entitled to recover, and in an amount which the statute warrants. Section 6135, Revised Statutes, provides:

“Every such action shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury may give such damages, not exceeding in any case ten thousand dollars, as they may think proportioned to the pecuniary injury resulting from such death, to the persons respectively for whose benefit such action shall be brought.”

The damages that are allowed to be recovered in a case of this kind are, to be sure, more or less speculative. They must be. How long Roe might have lived if he had not met with this accident, we can not tell, or how much he might have earned in the future can not be told with certainty; or how much he might have given to his wife or children, the jury could not tell absolutely, with certainty. They can only judge from what he has done in the past, from what he has earned in the past, from his health and his prospects of life, as shown by the evidence. But the statute provides that the jury (after taking, all these things into consideration) shall allow such sum, not exceeding ten thousand dollars, as they may think proportioned to the pecuniary injury resulting from such death. The statute does not provide that they shall, give such sum as they are reasonably certain will result, but such sum as they may think under the evidence is proportionate to the pecuniary injury resulting from such death, and it seems to us that this is to be established by a preponderance of the'evidence like any other question in the case; that it would be going beyond the statute to say that the jury could only return such damages as they were reasonably certain the next of kin or children, or parent, as the case might be, would sustain.

This question, we think, has been settled by the Supreme Court, in Grotenkemper v. Harris, 25 Ohio St., 510. The Supreme Court say:

“Under the act requiring ‘compensation for causing death by wrongful act, neglect, or default, ’ etc., persons who had no legal claim for support upon the deceased may, as next of kin, have an action maintained for their benefit, to recover the compensation allowed by the statute.
“In such eases, in determining the pecuniary injury resulting from the death, the reasonable expectation of what the next of kin might have received.from the deceased had he lived, is a proper subject for the consideration of the jury. ’ ’

On page 512 of the opinion the court say:

“The reasonable expectation of such pecuniary benefit to the next of kin is what the jury are to ascertain and allow; and that expectation may consist of what a person may give his next of kin while living as well as what they may inherit from him at his death.”

The court of common pleas, it seems to us, was clearly within the law as laid down by the Supreme Court, in refusing to give this request and in giving the instruction that was given to the jury in the general charge. The request, however, is faulty on another ground, in that it does not include any element of loss which may have resulted to the children and wife of the deceased on account of their being deprived of inheriting after acquired property from the deceased, at his death. That is an element of damage that may be considered by the jury, as well as the loss of benefit from the deceased during his lifetime. A case can readily be conceived of, if a man was engaged in large business enterprises and amassing large profits from year to year, where this expectation of inheritance would be a large element of probable damage to his wife and children.

C. P. & L. W. Wickham and John H. Clarke, for plaintiff in error.

Jesse Vickery, for defendant in error.

We hold, therefore, that there was no error in the court refusing this instruction.

Another portion of the charge is criticised and objected to as erroneous. The court said to the jury:

“In determining whether such ordinary care was exercised by' the defendant company, you should consider the nature of the work and the appliances therefor and what, if any, apprehension of danger the defendant had, or, in the exercise of ordinary care, should have had.”

Then follows this, which was objected to and claimed to be erroneous:

“You may consider also what knowledge, if any, the company possessed as to the experience, qualifications and fitness of the men whom it employed to do the work, including John Roe.”

It is probably true that the issues in this case did not call for any instruction to the jury upon this question of experience or of fitness of the men engaged in this work, including John Roe. But it is very common practice where a question of contributory negligence is involved to instruct the jury that they may consider all the facts and circumstances, including the man’s experience in the work, etc.; but there was, in fact, no claim made here that John Roe was inexperienced, or that the engineer was inexperienced. It was perhaps an inadvertence on the part of the court, in giving an instruction often given. But we are of the opinion, taking the whole charge together, that there was nothing in this to the prejudice of the plaintiff in error. It is not of sufficient consequence to warrant a reversal of the case. In our judgment the jury were not misled by this remark of the court, reading it in the light of the whole charge which, as a whole, was full and very fair. After a careful review of the record, we find no error to the prejudice of the plaintiff in error, and the judgment of the court of common pleas will therefore be affirmed.


text:
    DIVORCE AND ALIMONY.
    [Circuit Court of Cuyahoga County.]
    John T. Nauman v. Catherine Nauman.
    Decided, June 10, 1897.

      Divorce — Decree for, is Operative from the Date of Its Rendition— Can not he Reopened Upon Motion Filed Two Days Later — Where One of the Parties has Married in the Meantime — Journal Entry not Necessary to Give Validity to Decree — Temporary Alimony— Motion for, Will he Denied, When.

    1. Failure to enter a decree of divorce upon the journal does not deprive it of validity, but where the granting of the decree has been noted on the appearance docket it will be regarded as operative between the parties from its rendition.
    2. 'A court is not authorized to reopen a divorce case upon a motion filed two days after the decree was rendered, where it appears that on the day the motion was filed one of the parties without knowledge of the filing remarried.
    3. A proceeding for divorce is terminated by an order of court that the petition be dismissed, and the fact that no reference is made in such order as to the defendant’s cross-petition does not give to the defendant the right to thereafter move for an allowance of temporary alimony.
    Marvin, J.; Hale, J., and Caldwell, J., concur.
   This case comes into this court upon a petition in error, the purpose of the suit being the reversal of the judgment of the court of common pleas of this county granting to Catherine Nauman alimony to be paid by John Nauman pending the suit. The facts are substantially these: Some time in 1895, John Nauman filed a complaint in the court of common pleas praying for a divorce from his wife, Catherine Nauman. Thereafter she filed an answer or cross-petition in the case. On March 14, 1896, that case was heard and a decree of divorce was made by the court in favor of the plaintiff.

On March 17, 1896, John Nauman remarried, and on that same day a motion was filed by Catherine Nauman in this case for a new trial. On March 21, 1896, the motion was sustained; the court heard evidence and ordered the petition of the plaintiff dismissed at his costs, and said nothing as to the cross-petition of Catherine Neuman, and no entry or order was made concerning the ease. Later on, some time in January, 1897, Catherine Nauman filed a motion entitled in the case of which I have already been speaking, asking that alimony be decreed pending the hearing of her cross-petition in that ease. Before the motion was filed, however, Catherine Nauman had filed a separate petition in another ease in the court of common pleas, praying for alimony against John Nauman. The question, then, is whether the court of common pleas had any jurisdiction to make the order it did make, that John Nauman should pay alimony pending the hearing of this cross-petition in that original ease.

No entry was made upon the journal prior to the hearing of the motion for a new trial. The first journal entry made in the case was the entry dismissing the petition of John Nauman. An entry was, however, made on the appearance docket showing that these things took place on March 14th, to-wit, a decree of the court granting Nauman a divorce, and on March 17, motion for a new trial. It was urged upon the hearing that because no entry had been made upon the journal of the court, therefore there was no divorce. That counsel making that claim are mistaken, is settled in numerous cases, and settled in Ohio beyond any question, and in this court, in the case of State v. Meacham, 6 C. C., 31, in which the opinion was delivered by Judge Upson. He said in the first paragraph of the syllabus:

“The clerk of the court of common pleas must, under the statute, enter on the journal all orders and acts of the judge of the court during the term. All changes should be subsequently entered by the clerk without omission of any former entry. ’ ’

In the fourth paragraph of the syllabus he said:

“In an appealable ease, after notice of appeal and bond has been given, the case is eo instanti in the circuit court, although the clerk has journalized neither the decree nor the notice of appeal; and the rule that a judgment in a case is within the control of the court during the term at which it is rendered, and that the. case does not go beyond the power of the court until the close of the term, has no application to such ease. ’ ’

In the opinion Judge Upson says, page 337:

“In the nature of things, a judgment must be rendered before it can be entered; and not only that, but though the judgment be not entered at all, still it is none the less a judgment. The omission to enter it does not destroy it, nor does its validity remain in abeyance until it is put on the record.”

That is not only the law in Ohio, but, so far as I have been able to examine the text books, it is the law everywhere.

I call attention to the case of Cook, Estate of, 77 Cal., 220 (19 Pac. Rep., 431), in the second paragraph of the syllabus:

“A judgment of divorce becomes operative between the parties at its rendition, notwithstanding it be not entered by the clerk until a subsequent date.”

The fourth paragraph of the syllabus reads:

“After the rendition of a judgment it is the duty of the clerk to enter it; and the fact that the entry was made at the request of a person not a party is immaterial.”

The sixth paragraph of the syllabus reads:

“A judgment of divorce rendered in favor of a party during her lifetime may be entered after her death. ’ ’

In this case it was the matter of the settlement of the estate of a deceased woman. The question of who was entitled to distribution of the estate was affceted by the question, whether when she died she was the wife of Cook or of somebody else to whom she was thereafter married. The examination of the record shows that it was quite a number of years; the divorce was granted in 1880 and the death occurred quite a number of years thereafter, and yet the court in this case ordered the decree to be entered as of the date when the judgment was announced. In the case of Clink v. Thurston, 47 Cal., 29, in the opinion this language is used:

“It was objected that the judgment was not signed either on the roll or elsewhere by the judge or clerk of the court. It is not required that a judgment should be signed by the judge or clerk, and as the judgment roll was an original record of the court in which it was offered, it required no exemplification.”

In this case before the court, the entry had been made upon the minutes, and we hold that the fact that nothing had been entered upon the journal is wholly immaterial. But it is provided by our statutes that a motion for a new trial may be filed in a case within three days after the rendition of a judgment, and the court may hear such motion; and it is urged that as a motion is here filed within three days, and the court subsequently heard that motion and granted it, and thereafter heard the case upon the petition and dismissed the petition, that these parties were not divorced. Without undertaking to say what the court would hold if the fact were not in this case that Nauman was remarried before that motion was heard, and probably before it was filed, though the record does not show whether he was married before it was, filed or not — he was married on the same day it was filed — the question here is, whether that being true, there is any question of public policy requiring this case to be treated differently from a decree in another kind of a case.

We are cited by counsel for the defendant in error here to numerous cases to show that judgments in divorce should be treated as judgments in other cases. The case is cited to us in 104 Mass., 297. In the opinion it reads:

“Aside from a well justified reluctance to nullify decrees in eases where second marriages have been contracted, the tribunals of this country have, with few exceptions, treated final decress in divorce precisely as final judgments in ordinary civil actions. ’ ’

That is true in the case of State v. Railway Co., 38 Minn., 246, 252 (36 N. W. Rep., 870), where the court goes so far as to say that the judgment is to be treated as any other judgment may be treated in eases after decree being entered. The same is true of all eases cited except, perhaps, two in New Hampshire, in which I find nothing which seems to us in any way to bear upon the question now under consideration. As strong a case as is cited to us on the proposition that a judgment for divorce may be reopened, as any other judgment, is Wisdom v. Wisdom, 24 Neb., 551 (39 N. W. Rep., 594).

That case cited a ease in Ohio which is relied upon by the plaintiff in error here (Parish v. Parish, 9 Ohio St., 534), and expressly holds that that is not the law in Nebraska. It is urged here that Parish v. Parish, supra, is at variance with the policy of the law of Ohio, and is not in any event authoritative in this ease.

The case of Parish v. Parish, supra, was one in which it was sought to open a judgment for divorce at a subsequent term. The reasoning of the court in that case was based upon -public policy, which requires that the domestic relations of parties, especially that growing out of the marriage contract, is of such interest that the case is not to be treated as a judgment in other cases; but instead of that not being now the law in Ohio, a case was decided upon October 8, 1895, by the Supreme Court of this state, only reported in brief, but found in John v. John, 1 O. S. C. D., 356. That was a case like Parish v. Parish, supra, Where if the allegations of the petition were true, a gross fraud had been perpetrated on the court. We can not well conceive a case where a greater fraud was perpetrated, according, to the petition than that case of Parish v. Parish, supra, and the court said in passing upon it that it was to be hoped for the honor of human nature that the allegations were not true; and the demurrer was sustained in that case; a fraud upon the court as to jurisdiction, as was also true in the case of John v. John, supra. So there is no question but that the ground laid down in Parish v. Parish, supra, is still the law of Ohio. But does that apply to the present case? It is not exactly such a case as this, and, as I have already said, without undertaking to say what this court would do if a new marriage had not been made, we think that must be considered, whether this court might grant a new trial and rehear the case.

In Lewis v. Lewis, 15 Kan., 181, an opinion was delivered by Justice Brewer, and he cites in that case the case of Bascom v. Bascom, 7 Ohio (pt. 2), 125. Justice Brewer, in commenting upon the case, said:

“In Bascom v. Bascom, supra, the court decided that a decree of divorce was not subject to review in the Supreme Court. It was conceded that the statute provided that divorce cases should be governed by the rules respecting proceedings in chancery, and that in chancery cases the right of review existed; but there was this difference: in divorce eases the testimony wus oral; in chancery, by depositions. Upon this difference the court concluded there was no right of. review of decree of divorce. Manifestly a controlling consideration was the danger of intermediate marriage. It used this' language in the opinion: “When a divorce is granted upon which one of the parties contracts new relations, and a third party acquires rights," it can not be that a process could be had to reverse a decree, the consequence of which would be a severance of all those new relations. Such anomalous mischief can not be engrafted on the practice of our courts, except by clear and explicit legislative enactment. That, we feel confident, can never take place. All the reasons that render a decision upon facts by a jury conclusive between the parties, unite in requiring that the decision of a court, upon facts, bn the hearing of a petition for divorce, should be final, and stand beyond the reach of judicial re-, vision.’ ” . •

An examination of the case of Bascom v. Bascom, supra, will show that Justice Brewer has correctly stated the position of the court.

I call attention to that case to show the opinion of Justice Brewer as to intermediate marriage. In the case of Bingham v. Miller, 17 Ohio, 445, the court held that—

“Divorces are the subject of judicial, not legislative, action, and the Constitution confers upon the Legislature no power to grant them, but to avoid the consequences which would result from declaring all those void which have been granted, by the Legislature during the existence of the state, rendering illegitimate the issue of second marriages, the court will pronounce them valid.”

We think that in view of the fact that remarriage had taken place in this case, the court was not authorized to reopen the case, that the case was ended; but in any event, we hold that there was no ease pending in the court of common pleas at the time this motion for alimony was filed, even though we should be wrong in what had already been announced. The last decree of the court, the one of March 21, was an order that the petition of the plaintiff be dismissed; and there being no continuance, and nothing said as to the cross-petition then filed, the case, if it were not already ended, then the effect of what was then done was to end the case.

E. C. Schwam, for plaintiff in error.

Allen T. Brinsmade, for defendant in error.

The case found in Petersine v. Thomas, 28 Ohio St., 596, I cite as establishing that whatever was then pending in this ease was ended when that judgment was made. The first clause of the syllabus reads:

“When a matter is finally determined in an action between the same parties by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might have litigated in the case.”

Now the whole matter was pending in that court — petition and cross-petition; if we were wrong in what we have already said, the case was ended by the first decree. The court should not have interfered with the first decree. That ended the case, if it was not at that time ended; but our holding is that that case was ended by the decree of the fourteenth, and with these views, we reverse the judgment of the court of common pleas.