text:
    EXECUTION — JUSTICE OF THE PEACE.
    [Lucas (6th) Circuit Court,
    December 23, 1911.]
    Wildman, Kinkade and Richards, JJ.
    Frank Hopper v. Siren Gallier.
    Written Demand for Ten- Per Cent of Debtor’s Earnings not Pre-. requisite to Sufficiency of Affidavit in Proceedings in Aid of Execution.
    The preliminary demand in ■writing for excess above 90 per cent of the personal earnings of a debtor, made a prerequisite to attachment proceedings by Gen. Code 10272, has no application to proceedings in aid of execution before a justice of the peace under Gen. Code 10436; hence, failure to insert such demand does not render an affidavit, in the latter proceedings, insufficient.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Marion W. Bacome, for- plaintiff in error:
    Cited and commented .upon by the following authorities:— Ammon v. Delaney, 21 Dee. 251 (ll N. S. 574); Eouns ,v. Reiniger, 24 O. C. C. 116 (3 N. S. 664).

      Frank I. Isbell, for defendant in error.-
   RICHARDS, J.

The original action out of which this proceeding in error grows, was brought in justice’s court and was a proceeding in aid of execution. Upon motion filed by the defendant, the justice dismissed the proceedings in aid of execution. From this ruling, proceedings in error were prosecuted in court of common pleas where the judgment of the justice of the peace was affirmed. A bill of exceptions was taken before the justice but the bill does not purport to contain all of the evidence which was introduced.

The affidavit which was filed before the justice of the peace avers that upon July 26, 1910, the plaintiff in an action then pending before said-justice of the peace duly obtained a judgment against the aforesaid defendant in the sum of $30.27 and for costs therein taxed at $4, and that The Northwestern Ohio Bottle Company is liable to the judgment debtor in a sum of money which is now due to said judgment debtor and that said money is not exempt from execution or attachment.

The motion which was filed in the justice’s court by the defendant to release the money which is said to have been reached in the proceedings contains four grounds:

First, that the facts in the affidavit are false and that the affidavit is insufficient;' '

Second, that the defendant is a married man and the support of a family, resident in Ohio;

Third, that no demand was made upon the defendant for 10 per cent of his personal earnings; and

Fourth, that no summons or copy of the order issued by the justice has been served upon the defendant although a resident of Lucas county, Ohio.

By reason of the fact that the bill of exceptions does not purport to contain all of the evidence which was introduced before the justice of the peace, we are not advised as to the -basis of his decision except as recited in the docket entries made by him .which are before us.

It appears from the docket entries that the motion filed by the defendant was sustained upon the grounds that the affidavit was insufficient in law and that no demand had been made upon the defendant for 10 per cent of his wages. It does not appear at any place in -the record that the justice of the peace found that the' property sought to be reached by this proceeding was the personal earnings of the defendant nor that it was exempt from execution.

The contention made before .us relates to the question whether in the proceedings in aid of execution brought under Gen. Code 10436, a preliminary demand must be made and the fact of such demand inserted in the affidavit. It will be noted that the section to which reference has just been made is found in Chap. 11 of the General Code entitled 11 Proceedings in Aid of Execution.” The statute providing for the preliminary demand is Gen. Code 10272, and that section is found in Chap. 2 of the General.Code and under the subdivision headed “attachment.”

It is perfectly clear that the requirement that a. demand must be made in writing for an excess over and above 90 per cent of the personal earnings of a debtor has no application to a proceeding brought in aid of execution under Gen. Code 10436. The method of procedure contemplated in Chap. 11 is complete in and of itself, and no reason is apparent why the requirement for the preliminary demand which exists in certain cases where proceedings in attachment are brought, should have any application to the case at 'bar. The point has been so ruled by the court of common pleas of Columbiana county in Ammon v. Delaney, 21 Dec. 251 (11 N. S. 574).

It is clear from the facts contained in the case of Duffey v. Reardon, 70 Ohio St. 328 [71 N. E. Rep. 712], in which the Supreme Court affirmed the judgment of this court that an affidavit in all respects similar to the one in the case at bar was held to be sufficient. The affidavit contains every requirement set forth in Gen. Code 10436 and in our opinion is entirely sufficient. We do not, of .course, pass upon the question of whether the property reached is exempt from execution or attachment.

The judgments rendered by the common pleas court and the justice’s court will be reversed and the case remanded for further proceedings in accordance with this opinion.

Wildman and Kinkade, JJ., concur.


source: Caselaw Access Project

author: GIFFEN, P. J.

license: Public Domain

text:
    EVIDENCE.
    [Hamilton (1st) Circuit Court,
    January, 1911.]
    Giffen, Smith and Swing, JJ.
    Walter Canfield v. Southern Film Exchange.
    Expert Evidence Involving Issue on Trial Held Incompetent.
    Expert opinion evidence as to the origin of a fire by which certain films were destroyed is inadmissible in an action by a film exchange to recover for the films destroyed, since it involves the issue on trial, whether the destruction resulted from defendant’s negligence or not.
    Error to common pleas court.
    Plaintiff below sued on two causes of action, one for $47.59 on an account and the other for $93.90 for picture films which were destroyed by fire. The verdict below was for the full amount claimed with interest.

      Snyder & Dickerson, for plaintiff in error

      Wm. J. Bielly, for defendant in. error.
   GIFFEN, P. J.

There was no error in overruling the motion of .the defendant, the Auditorium Theater Company, to instruct the jury to return a verdict in its favor, as liability upon the first cause of action is now admitted, whereas the motion was addressed to both causes of action. The following question and answer appear at page 26 of the bill of exceptions:

“Q. Now you have examined that magazine. Will you please state to the jury as an expert in your experience in operating machines how that fire occurred ?
“(Objected to by counsel for defendant. Objection overruled and counsel for defendant excepted.)
“A. There is only one thing that can cause a fire, and that is by allowing the light from his lamp house to rest upon the film. If he allows the light to rest on the film eight or ten seconds it will, burn.”

And again at page 47:

“Q. From yonr experience as an operator and yonr examination of the condition of that box, what in yonr opinion was the origin of the fire?
“(Objected to by counsel for defendant. Objection overruled and counsel for defendant excepted.)
“A. The cause of the fire would be in not sliding his lamp house over in front of the machine. That would be the cause of the fire, and the cause of the real burning up would be from leaving this door open.”

These questions and answers involved the very issue to be 'determined by the jury, whether the destruction of the film was the result of defendant’s negligence, and were prejudiced because they constituted the only evidence upon which the jury could base a verdict for plaintiff under the second cause of action. The objection to the questions should have been sustained. Runyan v. Price, 15 Ohio St. 1 [86 Am. Dec. 459].

The testimony offered by the defendant, especially that of the operator in charge of the machine, tends strongly to 'prove that the machine hired was itself defective, and that such defect was the direct cause of the fire.

Unless the defendant in error will consent to a remittitur of all the amount recovered except the account stated in the first cause of action with interest, the judgment will be reversed because not sustained by sufficient evidence, also for error in admitting above testimony, and the cause remanded for a new trial.

Smith and Swing, JJ., concur.


author: HENRY, J.

text:
    HEALTH.
    [Cuyahoga (8th) Circuit Court,
    November 4, 1908.]
    Marvin and Henry, JJ.
    (Winch, X, not sitting.)

      Frederick H. Staas v. State of Ohio.
    Board of Health Regulation Requiring Retail of Milk in Sealed Glass Bottles not Unreasonable.
    A municipal board of health regulation enacted in conformity to R. S. 2118, 2119 (Gen. Code 4413, 4414), forbidding the sale of milk at retail except in' sealed glass bottles is neither unreasonable nor void as an' unwarranted delegation of legislative powers.
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Error to common pleas court.

      L. Z. Tawney, for .plaintiff in error.

      Sylvester V. McMahon, for defendant in error.

      Affirmed, no op., Staas v. State, 81 O. S. 497.

   HENRY, J.

Plaintiff in error was convicted under R. S. 2118 and 2119 (Gen. Code 4413, 4414), of violating a regulation of the board of health of the city of Cleveland forbidding the sale of milk at retail except in sealed glass bottles.

The grounds for reversal relied upon are, that the regulation is unreasonable and therefore void,- and secondly, that it exists only as the result of an unwarranted delegation by the general assembly of its legislative power, contrary to Art. II, Sec. 26, of the constitution of Ohio.

Upon the first point we are asked to infer from the evidence in the bill of exceptions that other means providing for the public health and welfare of the inhabitants of this city in the matter of the sale of milk at retail are better suited to that end than the regulation in question; that glazed paper bottles, destroyed when once used, are in vogue in other cities and are sanitary, whereas bottles used again and again are apt to disseminate impurity and disease. It is also argued from the evidence that it is useless) unduly expensive and merely arbitrary that bottles be required rather than any other convenient receptacle, that they be made of glass rather than of any other convenient material, and that they be sealed, even when delivery is made at a milk depot to the purchaser personally, in his own. receptacle and fop immediate use.

We recite the argument at length without deeming it necessary to refute it in detail further than to say that the regulation seems to us to be entirely reasonable. We cannot say but that bottles are, all things considered, the most convenient kind of a receptacle, and, for the sake of uniformity and the proper enforcement of the law, reasonably necessary. The transparency of the glass is a reason for requiring that material. Sealing aids in the prevention of the contamination of the milk by dirt or other impurities. Nor is it necessary that we should be convinced that the regulation is the best and wisest possible. It must be shown to be affirmatively unreasonable, not in extreme cases, but in its general operation, to warrant his in setting it aside.

Neither can we agree that it is incompetent for the legislature to empower municipal health boards to make such regulations, the violation whereof is penalized by general statute. By Art. 13, Sec. 6, the general assembly is specially enjoined to provide for the organization of cities and incorporated villages; and it has been again and again adjudged that municipal ordinances and by-laws enacted or ordained, pursuant to general law, by councils or other constituted representatives of the inhabitants of such municipalities or other public corporations and quasi-corporations, whether elective or appointive, imply no unconstitutional delegation of the state’s legislative power. Markle v. Akron (Town Council), 14 Ohio 591; Perry Co. v. Railway, 43 Ohio St. 453 [2 N. E. Rep. 854] ; Zanesville v. Richards, 5 Ohio St. 589; Mays v. Cincinnati, 1 Ohio St. 273; State v. Toledo, 48 Ohio St. 132 [26 N. E. Rep. 1061; 11 L. R. A. 729].

The judgment is affirmed.

Marvin, J., concurs.


text:
    ALIMONY — CONTEMPT OF COURT.
    [Hamilton (1st) Circuit Court,
    December, 1910.]
    Giffen, Smith and Swing, JJ.
    George M. Galley v. Della Galley.
    Finding a Husband in Contempt for Failure to Pay Alimony Awarded Presumes His Failure to Establish Inability to Pay.
    A decree ordering a husband to pay alimony to his wife imports his ability to pay the amounts adjudged; hence, a complaint in contempt for default in payment need not allege his ability to pay the same, and in the absence of a bill of exceptions, containing the evidence on the hearing it will be presumed, on a finding of contempt, that defendant failed to establish his inability to pay.
    Error to common pleas court.

      G. S. Sparks, for plaintiff in error.

      Karl H. Caldwell, for defendant in error,
   GIFFEN, P. J.

The objection that the complaint is insufficient in law, because it contains no allegation that the defendant was able to pay alimony as decreed, is not sound, as the. decree imports a finding that he is able to pay the money. State v. Cook, 66 Ohio St. 566 [64 N. E. Rep. 567; 58 L. R. A. 625].

In the absence of a bill of exceptions containing the evidence, if any were offered, the presumption will be that the defendant failed to establish his inability to pay.

It is not essential, though preferable, to prosecute a proceeding in contempt in the name of the state. Hannberger, Ex parte, 10 Circ. Dec. 561 (19 R. 651).

Although the mittimus recites that the ease came on to be heard in the court of common pleas, it is apparent on the face of the paper that this was a clerical error in the use of a printed form, and that the commitment was in fact ordered by the court of insolvency after a hearing was had in such court.

Where a cause is submitted to the court, a finding made and judgment rendered, it will be presumed that evidence was offered in support of such finding, although the judgment entry contains no recital that the cause was heard upon evidence. Haskins v. Alcott, 13 Ohio St. 210.

We find no prejudicial error and the judgment will be affirmed.

It follows, also, that the defendant is lawfully imprisoned and that he be remanded to the custody of the sheriff.

Smith and Swing, JJ., concur.


author: ALLREAD, J. DUSTIN, J.,

text:
    ESTOPPEL — INTEREST—PRINCIPAL AND SURETY —STATE.
    [Franklin (2nd) Circuit Court,
    January 16, 1912.]
    Dustin, Allread and Ferneding, JJ.

       State of Ohio v. Herbert McKinnon et al.
    1. Interest on State Moneys Converted by State Treasurer Creates Liability Enforceable against His Bond.
    Where a treasurer of state loans and deposits the public funds in his custody and receives and converts interest thereon during his official term, a liability for the interest so received is thereby created, enforceable against the obligors upon the official bond, executed pursuant to R. S. 182 (Gen. Code 297).
    2. Notwithstanding Loans Made Violated Penal Statute.
    The liability so arising is within the purview of the official bond, although the loans and deposits from which the interest sprang were made in violation of a penal statute.
    3. Settlement and Receipt for Principal Funds do not Estop Recovery of Interest Converted.
    The settlement with the auditor of state by the treasurer or his legal representative of the amount of the principal fund (not, however, including interest) and the receipt thereof by virtue of said settlement by the successor in the office of treasurer o£ state do not estop nor prevent the state from recovering the amount of interest received as aforesaid. R. S. 198 (Gen. Code 317).
    [Syllabus by the court.]
    Error to common pleas court.

      Timothy 8. Hogan, Atty. Gen., H. J. Booth and R. 'W. McCoy, for plaintiff in error.

      Cyrus Huling, A. T. Seymour and J. E. Todd, for defendants in error.

       Affirmed, no op., McKinnon v. State, 87 O. S. 000; 57 Bull. 458.

   ALLREAD, J.

The state brought an action against the administrator of the estate of the late William S. McKinnon and the sureties upon his official bond as treasurer of state to recover interest upon loans and deposits of the public funds alleged to have been received by McKinnon during his official term.

Demurrers were presented in the court of common pleas to the amended petition and overruled.

The defendants, thereupon, answered.

Tbe first defense is in substance a denial of the making of loans and receipt of interest. The second defense séts forth, as a bar to the action, a statement in behalf of the treasurer, settlement by the auditor of state and acceptance thereof by his successor in the office of treasurer of state.

A demurrer was presented to the second defense. The court upon consideration of the demurrer searched the entire record, found the amended petition insufficient, sustained a demurrer thereto, and dismissed the action.

The state excepted and brings the cause to this court upon petition in error.

The amended petition in the court of common pleas presents the question of the liability of the state treasurer and the sureties upon his official bond for interest upon loans and •deposits received by him during his official term.

The question so presented has been fully and ably argued 'toy counsel and all the reported eases, both in the state and elsewhere, have been cited and discussed.

Upon full consideration, we are of opinion that the doctrine is settled in this state by the ease of Eshelby v. Cincinnati (Bd. of Ed.) 66 Ohio St. 71 [63 N. E. Rep. 586], that a public treasurer is a mere custodian of the public funds, has no other right or title thereto, and can confer no right or title to others.

The funds, therefore, when' loaned or deposited, were ,-still the public funds, the title and ownership of which was in -¡the state, and the interest accruing thereon followed the principal and became the property of the state by the same right as the principal itself.

This decision has never been departed from, criticised nor doubted by any adjudication in this state, and forms the basis of civil liability.

It has been applied and followed in the following cases:

Glenville v. Englehart, 10 Circ. Dec. 408 (19 R. 285); State v. Schott, 22 Dec. 320; State v. Bank, 19 Dec. 86 (7 N. S. 43); Nicholson v. Maile, 15 Dec. 682 (3 N. S. 201).

And also by Judges Evans and Bigger of the court of common pleas in the former rulings on demurrer to the petition in the ease at bar, State v. McKinnon, 20 Dec. 300 (9 N. S. 513) ; State v. McKinnon, 21 Dec. 346 (11 N. S. 165).

We have, therefore, no difficulty in reaching the conclusion that it became the duty of McKinnon and is now the duty of his administrator to account for and pay to the state the interest so received.

The chief contention of the learned counsel for defendants in this court is (1), that the liability for interest is not within the terms of the official bond, and (2), that the interest arising out of illegal acts is not contemplated by the general terms of the bond and the statutes prescribing its conditions.

It may be conceded that the sureties may stand upon the strict letter of the bond, and of the statutes made part thereof, by reference, and that their liability can not be extended beyond the terms and provisions so employed.

The conditions of the bond required the said William S. McKinnon to “faithfully discharge the duties imposed upon him by law, * * * and to turn over and deliver to his successor in office, or other person entitled thereto, all money and other property coming into his' custody as treasurer of state for the state of Ohio, as required by law.”

R. S. 182 (Gen. Code 297) provides that the bond shall be conditioned- ‘ ‘ for the faithful performance of the duties of his office as the same are prescribed by law.”

Among the duties so prescribed, the treasurer of state, upon expiration of his term, is required by K. S. 198 (Gen. Code 317 et seq.), to make full settlement “of all moneys, property and effects belonging to * * * the state treasury,” and is further required to “forthwith pay over to his successor or the person appointed to act as treasurer, the several sums of money so certified, and also deliver to Mm all the books, accounts, vouchers, official papers and correspondence, together with all other property, bonds, securities, claims, assets, and effects belonging to the treasury.”

By the statute as well as the express terms of the bond the state treasurer became so bound to turn over to his successor all money and other property belonging to the state.

The terms are comprehensive; the test is the ownership of the state. When the ownership of the state is established to funds in the possession of the state treasurer, he is bound to turn them over to his successor.

The receipt of jiublie funds by the state treasurer becomes official. The treasurer can not assert and maintain an individual possession of public funds against the state. lie can not with one hand collect the principal of the public funds as official custodiau and-with the other hand collect and hold the interest as his own. The title to both principal and interest being in the state, the failure of the treasurer to turn over the augmented fund falls within the express terms of the bond.

The illegality of the loan from which the interest sprang is relied upon as a reason for excluding interest from the purview of the bond. It is asserted that in contemplation of the statute, and, therefore, of the .bond, there can be no interest, and that the bond should be so read and construed.

The case of State v. Pierson. 83 Ohio St. 241 [93 N. E. Rep. 967], is cited. That was a criminal case and involved a construction of the statute making conversion of public moneys by the custodian embezzlement. The statute, it was held, did not contemplate interest, but only the original fund. The ease does not pretend to settle the civil liability. The case of Eshelby v. Cincinnati (Bd. of Ed.) supra, is cited, and its authority in civil cases is acknowledged.

Counsel for defendants cite Renfroe v. Colquitt, 74 Ga. 618, and Wilkes Barre v. Rockafellow, 171 Pa. St. 177 [33 Atl. Rep. 269; 30 L. R. A. 393; 50 Am. St. Rep. 795], and the classification of authorities found in State v. McFetridge, 84 Wis. 473 [54 N. W. Rep. 1, 998; 20 L. R. A. 223].

Both the Benfroe and Boekafellow cases are weakened as authority by dissents and the Boekafellow case is not parallel on.the facts. , ■

The McFetridge case merely acknowledges and classifies the Benfroe case without expressly approving its authority. and upon closely allied facts, holds the sureties liable.

In the case of Eshelby v. Cincinnati (Bd. of Ed.) supra, the treasurer of the board of education having authority to deposit funds, but no authority tc use, loan or invest them, deposited them upon interest, and was held liable for the interest. The manner of deposit as indicated by the opinioii was an investment prohibited and made criminal by statute. While the suit was against the treasurer alone, still his liability was measured by the conditions of the bond. The contention made here, that interest arising solely out of an unlawful and criminal act is not contemplated by the bond, could have been made with equal plausibility there. Had the funds in that case remained in the custody of the treasurer or been deposited as enjoined by law, no interest could have arisen. The'interest there, as here, sprang from illegal loans or investments. The decision, therefore, carries by necessary inference the conclusion.that interest upon the public funds, although the fruit of illegal loans, may be recovered as a breach of the official bond.

The case of the State v. Griffith, 74 Ohio St. 80 [77 N. E. Rep. 686; 6 Ann. Cas. 888], distinguishable. Griffith was clerk of the board of education, and by resolution of the board authorized to collect tuition dues. This he did and failed to account.' It was held that the sureties upon his official bond were not liable, because he was not charged by law with the receipt and custody of the funds, and that his duties, for which his bond was conditioned, could not be so enlarged by resolution or appointment of the board.

In the case under consideration McKinnon held and controlled the public funds under provision of law and in his official capacity as state treasurer. While in the exercise of the control and custody of the public fund the treasurer illegally loaned them, yet the fund was still in his custody and control by virtue of his office. See Drolesbaugh v. Hill, 64 Ohio St. 257 [60 N. E. Rep. 202].

It is too narrow a construction of an official bond to hold that it does not include liability for the consequences for illegal acts.

In the ease of Greenville v. Anderson, 58 Ohio St. 478 [51 N. E. Rep. 41], Williams, J., says:

“If the acts of an officer are to be regarded as unofficial whenever they are illegal, an official bond could serve no useful purpose, for there can be no breach so long as he performs Ms duties according to law. It is only when some duty has been omitted or disregarded or improperly or illegally performed that a liability can arise.”

The loan of the public moneys by the treasurer was itself a breach of the official bond and created a liability against the sureties, which could be discharged only by full restoration. There remained a duty upon the state treasurer to recover the state funds and restore them to rightful custody.

Had a successor been appointed, can his right and duty to recover the fund with outstanding interest be doubted.? In the recovery and restoration of' this fund by the' treasurer, who made the loan, is he to be considered less an agent of the state and acting in official capacity?

The cause of action does not, therefore, rest solely upon the illegal act of loaning the funds, but as well upon the duty of collecting and restoring them.

In the discharge of this official duty, it is illogical and unreasonable to say that he may restore part and retain part and claim fulfillment and the discharge of his bond.

The petition, therefore, which alleges that McKinnon loaned the public funds, received interest thereon during his term of office, and failed to account for and turn over the same to his successor, shows a breach of the official bond, and constitutes a cause of action against the estate of McKinnon, as well as the sureties upon his bond.

The second defense setting forth the settlement with the state auditor and his successor as state treasurer admits that no interest was included.

This defense is not sufficient. The treasurer by his own statement to the auditor and to his successor can not furnish justification for his own release as to item not included. For aught that appears neither the auditor nor McKinnon’s successor knew of the omitted items. In any event the settlement could furnish no defense as to items not accounted for. •

The judgment of the court of common pleas is, therefore, reversed and the cause remanded with instruction to overrule tlie demurrer to the petition and sustain the demurrer to the second defense.

FERNEDING, J., concurs.

DUSTIN, J.,

dissenting.

The opinion of the majority of the court is devoted chiefly to the proposition that the estate of William S. McKinnon is liable for the interest received by him on the funds of the state while he was treasurer.

In that I concur fully. Indeed, I think it is not seriously denied by anybody. It is a familiar principle that a trustee is liable for the profits made out of the trust fund in his hands.

If McKinnon had made a fortunate investment in stocks and realized a profit of a million dollars, I do not doubt that he or his personal representatives would be liable to the state for the whole of it.

But the situation is quite different as to his bondsmen. They are liable, of course, for any loss of the principal so invested; and, if the law had then permitted loaning as it does now, they would be liable for any interest obtained, up to the limit of their bond, because they would be presumed to know the law and that such a liability might be incurred. But they can not be presumed to incur a risk of being liable for an increase that was illegal, _ and, hence, presumably impossible, to obtain.

As the law stood at the time Mr. McKinnon’s bond was signed, the sureties were, in my opinion, liable for losses only,— not for profits. There could be no profits legitimately obtained. The funds referred to in the phraseology of the bonds were the funds already in the treasury and such as might legitimately be placed there. As the Supreme Court significantly remarks in State v. Pierson, supra “In contemplation of the lawmakers, there never could be any interest.” And in State v. Newton, 26 Ohio St. 265, 275, an indictment against a county auditor for the embezzlement of public money alleged to have come into his hands, the court says: “If it was there at all, it was there without legal authority,” and quashed the indictment.

The case of Eshelby v. Cincinnati (Bd. of Ed.) supra, is referred to as conclusive. But it does not strike me as anything more than a new application of the old principle referred to above, viz., that a trustee, even for the public, is liable for profits. The bondsmen were not sued nor are they referred to in the Eshelby case, and the question here presented was not made to nor considered by the court; nor is there any dictum in the opinion that could fairly be applied to their situation. The phrase "the increment follows the principal” refers to the only question in the case, viz., the liability of the official.

The bondsmen are entitled to stand on the conditions ot their bond, which, properly construed, it seems to me, cover losses only and not profits, which, in contemplation of law. aa it then stood, could never occur.


author: NORRIS, J.

text:
    DEEDS — TRUSTS.
    [Ashtabula (7th) Circuit Court,
    January Term, 1912.]
    Norris, Pollock and Metcalfe, JJ.

      W. H. Stockton v. J. S. Matson et al.
    Verbal Agreement to Purchase Property In Name of One Party and Reconvey to Second Party not Enforcible, no Trust Results.
    S made a verbal agreement with M and wife that the latter parties should purchase a certain piece Of real property with their own funds and take title in the name of the wife, and after such purchase and conveyance M and wife were to convey^ an undivided one-half interest in the property to S, he paying one-half the original purchase price. M and wife purchased the property with their own money — S paying no part of the purchase money — and took title in the name of the wife. On refusal of M and wife to convey to him, S brought suit to recover an undivided one-half interest in the property. Held, that no trust resulted from the transaction and that the verbal agreement could not be enforced.
    [Syllabus by the court.]
    Error to common pleas court.

      Hoyt. Munsell & Hall, for plaintiff in error.

      Perry & Hitchcock, for defendants in error:
    Cited and commented upon by the following authorities: 3 Pomeroy, Eq. Jurisp. Sec. 1006; Martin v. Martin, 94 N. W.
      Rep. 493 (Iowa); 10 Am. & Eng. Ene. Law, pp. 2, 4; Story, Eq. Jurisp. (12 ed.) Sec. 1201-a; Fleming v. Donahoe, 5 Ohio 255; Newton v. Taylor, 32 Ohio St. 399; Boughman v. Bough-man, 69 Ohio St. '281 [69 N. E. Rep. 430] ; Watson v. Frb, 33 Ohio St. 35; Lesealeet v. Riclcner, 9 Circ. Dec. 422 (16 R. 461) ; Coolidge v. Smith, 18 Dec. 151 (5 N. S. 481); Leibig v. Grosshop, 20 Dec. 38 (7 O. L. R. 267); Burden v. Sheridan, 36 Iowa 125 [14 Am. Rep. 505].
   NORRIS, J.

The case of/W. IT. Stockton against J. S. Matson, Grace Matson, his wife, and C. 'F. Gran, is a proceeding in error to reverse the judgment of the court of common pleas sustaining a demurrer to the amended 'petition of the plaintiff filed in that court.

The amended petition is a very long one, and it is not necessary to take the time to read at any length from it, to get a fair understanding of the ease.

The plaintiff alleges 'that the defendant, J. S. Matson, and Grace B. Matson, his wife, lived in Ashtabula, and that Gran is also a resident of that city. That prior to February, 1909, Gran had a land contract with one Edgar E. Scoville of Cleveland, for what is called the Gran plat in Ashtabula, describing the land, and that the plaintiff and the Matsons, being friends, talked about a purchase of that plat of land, and there are several' pages containing statements with reference .to various efforts and negotiations, with the purpose in view of acquiring this piece of land. That it could have been, bought at one time for $5100, and that this Gran owed some money on it to the plaintiff, and he used it in that way to purchase the property. But that fell through, and finally it developed, according to the history contained in the pleading, that it could be bought from Scoville for $3500.

The plaintiff at that time, it appears, had not sufficient means to purchase' the property, and he alleges in his petition that it was agreed between him and Mr. and Mrs. Matson that they, should purchase the property with their own funds, taking the title in the name of Mrs. Matson, and thereafter she should convey the one-half of it to the plaintiff. That thereupon, in pursuance of that arrangement, as stated in the pleadings, the Matsons did purchase this property from Seoville, or whoever held the legal title, and took the title in the name of Grace B. Matson. That thereafter the plaintiff, I think, built some sidewalks upon it, and spent money to the amount of some $38, perhaps, in that kind of improvements.

That thereafter he demanded of Mrs. Matson that she carry out this agreement, and make a contract with him to convey one-half of this property to him, he demanded such a conveyance, but he failed to make her do so. .

Then follows some pages of charges that they fraudulently conspired not to carry out this contract, and that they did not carry it out, although repeatedly requested so to do.

Then there are a number of questions in reference to some descriptions of the property that are not important to determine the issue in question, also the allegation on the part of the plaintiff that some lots have been sold, and he claims he has an interest in those sales by way of compensation. Plaintiff asks that said' Grace B. Matson be held to be a trustee in trust of said property, that he be decreed to be the owner of an undivided half interest therein, subject to the payment on his part of one-half the purchase price, and that a conveyance be made.

To this amended petition a demurrer was filed, on the ground that it does not state facts sufficient to constitute a cause of action, and that is the question we are to decide here.

We have spent a good deal of time considering this case, have looked over a good many authorities upon it, and spent some little time trying to harmonizp them, and find out what is the correct principle underlying this transaction.

It has been very ably argued on the part of counsel for plaintiff, that an express trust arises from the facts in the case. That because of the agreement entered into between the plaintiff and the Matsons, that they should buy this property in trust for him, in part, and agreed to convey it to him, that an express trust exists that a court of equity should carry out.

What was this arrangement and what is the condition of it? So far as the petition is concerned, the plaintiff invested .no money in this land, he furnished no part of the consideration, the purchase price. So far as the allegations of the petition are concerned, Mrs. Matson, and the Matsons, carried out' exactly, and in express terms, the contract that was made between the parties up to the time of the taking of the deed of the property. The taking of the deed of the property in 'her name was in pursuance of the arrangement. There was no fraud in it — there was no wrongdoing. It was understood — it was a part of the arrangement that she should take the title in her name. Then wherein can it be said that the plaintiff had any interest in that land, and by virtue of what had he an interest in that land, or a right to have any portion of it conveyed to him? Was it anything more than by virtue of a verbal agreement between him and Matsons that she would, when she bought this property, convey a half interest in it to him? It seems to us that that is, in substance, this arrangement, and it is to be widely -distinguished from that class of cases where the party furnishes the purchase price and the title is taken in the name of the agent; or where an agreement between two parties is that one is to purchase it and take the title in the - name of the other, then the moment the title is taken the fraud is perpetrated because they failed to carry out their agreement, and a court of equity in that class of eases furnish relief. Perry, Trusts Sec. 133 says:

“The trust must result, if at all, at the instant the deed is taken and the legal title vests in the grantee. No oral agreements and no payments, before or after the title is taken, will create a resulting trust, unless the transaction is such at tlie moment the title passes that a trust will result from the transaction. ’ ’

But there was nothing in this ease that was wrong, or was done wrong, except after Mrs. Matson had acquired this title she refused to carry out a contract she had made with reference to the conveyance of the property, and, as we say, we think this case is to be distinguished, and the courts distinguish it from that' other class of cases where by reason of either constructive trusts or trusts ex maleficio, courts of equity afford relief and declare a trust.

The case that seems to us very close to this is the ease of Fickett v. Durham, 109 Mass. 419. We want to read just a word here from the opinion making this point, on page 422.

“The whole foundation of the trust is the payment of the money, and that must be clearly proved. If, therefore, the party who sets up a resulting trust made no payment, he cannot be permitted to show by parol proof that the purchase was made for his benefit or on his account” and so on.

They decide also this question, they hold in that ease very much like this, that the agreement could not be carried out because it was merely a failure to carry out an agreement to convey, without any of the elements of a trust.

To the same effect is Burden v. Sheridan, 36 Iowa 125 [14 Am. Rep. 505]. Just one paragraph from the syllabus. “A resulting trust cannot be sustained by parol evidence, where no part of the purchase money was paid, by the person claimed to be the cestui que trust.”

, Another case similar to this case is the case of Perry v. McHenry, 13 Ill. 227.

These cases from Massachusetts, Illinois, and Iowa have been cited with approval, and are, as it seems to us, substantially followed by our own Supreme Court, in the cases of Watson v. Erb, 33, Ohio St. 35, and Newton v. Taylor, 32 Ohio St. 399, and are decisive of the question before us.

We think the principle that we have attempted to announce is very clearly sustained by these authorities, and that the only question we have here is the question of a failure on the part of these parties to carry out a verbal agreement for the convejmnce of land, and that because of the fact that no part of this purchase price was paid, and there was no fraud in the taking of this deed on the part of Mrs. Matson, because it was in pursuance of the agreement, and there was no fraud anywhere in the case up until the time and after the entire transaction was carried out, except her failure to carry out her verbal agreement to convey this property, or an interest in it.

We think this petition does not state a cause of action in favor of the plaintiff and the judgment of the court below will be affirmed without penalty.

Pollock and Metcalfe, JJ., concur.


author: KINKADE, J.

text:
    EVIDENCE — NEGLIGENCE—TRIAL.
    [Lucas (6th) Circuit Court,
    November 20, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Tiedtke Brothers Co. v. Lucinda Williams.
    Evidence of Injuries Other Than Those Alleged in the Petition Prejudicial.
    It is prejudicial error to admit, over the objection of the defendant in an action for personal injuries, evidence as to injuries sustained by the plaintiff other than those alleged in the petition and further error intervenes where the court charges the jury with reference to such other injuries.
    Error to common pleas court.

      Frank E. Geer, for plaintiff in error:
    Cited and commented upon by the following authorities: Waldsmith v. Waldsmith, 2 Ohio 156; Eenkle v. McClure, 32 Ohio St. 202; Mahoney v. Libbey, 123 Mass. 20 [25 Am. Rep. 6] ; Toland v. Furniture Go. 175 Mass. 476 [56 N. E. Rep. 608] ; LaBlatt, Mas. & Ser. Secs. 119, 120; Mad River & L. E. Ry. v. Barber, 5 Ohio St. 541 [67 Am. Dee. 312]; Chicago & Ohio C. & C. Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857] ; Stewart v. Bridge Co. 8 Cffrc. Dec. 454 (15 R. 601); Findlay Brewing Co. v. Bauer,. 50 Ohio St. 560 [35 N. E. Rep. 55; 40 Am. St. Rep. 686] ; Wilkinson v. Faerrie, 1 Hurl. & Colt. 633; 1 Thompson, Negligence Secs. 968, 1019, 1020; Greenwell v. Market Co. 21 D. C. 298; Madigan v. Flaherty, 50 111. App. 393; Parker v. Publishing Co. 69 Me. 173 [31 Am. Rep. 262] ; Brugher v. Buchtenkirch, 167 N. Y. 153 [6Q N. E. Rep. 420] ; Eilsenbeck v. Guhring, 131 N. Y. 674 [30 N. E. Rep. 580] ; Piper v. Railway, 156 N. Y. 224 [50 N. E. Rep. 851; 41 L. R. A. 724; 66 Am. St. Rep. 559] ; Frassi v. McDonald, 122 Cal. 400 [55 Pac. Rep. 139, 772] ; Ainsworth v. Lakin, 180 Mass. 397 [62 N. E. Rep. 746; 57 L. R. A. 132; 91 Am. St. Rep. 314] ; McCabe v. Fastens, 63 N. Y. St. 180 [30 N. Y. Supp. 832] ; Eisenberg v. Railway, 33 Mo. App. 85; Ryder v. Kinsey, 62 Minn. 85 [64 N. W. Rep. 94; 34 L. R. A. 557; 54 Am. St.. Rep. 623] ; Ware v. Benevolent & Missionary Soc. 181 Mass. 285' [63 N. E. Rep. 885] ; Baddeley v. Shea, 114 Cal. 1 [45 Pac. Rep. 990; 33 L. R. A. 747; 55 Am. St. Rep. 56] ; Slicer v. Koch & Braumstein Co. 31 O. C. C. 235 (11 N. S. 551); Campbell v. Abbott,■176 Mass. 246 [57 N. E. Rep. 462] ; Dunn v. Kemp, 36 Wash. 183 [78 Pac. Rep. 782]; Larkin v. O’Neil, 119 N. Y. 221 [23 N. E. Rep. 563] ; Coiven v. Kirby, 180 Mass. 504 [62 N. E. Rep. 968]; Gaffney v. Brown, 150 Mass. 479 [23 N. E. Rep. 233] ; Hunnewell v. Haskell, 174 Mass. 557 [55 N. E. Rep. 320] ; .Johnson v. Bamberg, 49 Minn. 341 [51 N. W. Rep. 1043] ; Pierce v. Whitcomb, 48 Yt. 127 [21' Am. Rep. 120] ; Hansel v. Smys, 97 E. C. L. 731; Zoebisch v. Tarbell, 92 Mass. (10 Allen) 385; Sparks v. Siebrecht, 19 App. Div. 117 [45 N. Y. Supp.’ 993] ; 2 Sherman & Redfield, Negligence (5 ed.) See. 704; Strand v. Bailwayr 67 Mich. 380 [34 N. W. Rep. 712] ; Woods v. Tipton Co. (Comrs.) 128 Ind. 289 [27 N. E. Rep. 611] ; Chicago & N. W. By. v. Drake, 33 111. App. 114; Pyne v. Bail-way, 46 N. Y. St. 662 [19 N. Y. Snpp. 217] ; Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Rep. 725] ; Cleveland, C. C. & St. L. By. v. Gahan, 14 Circ. Dec. 277 (1 N. S. 205) ; Pittsburgh, Ft. W. & C. By. v. Krichbaum, 24 Ohio St. 119; Cain v. Traction Co. 13 Dec. 591; Murphy v. Dayton, 8 Dec, 354 (7 N. P. 227); Lake Shore & M. S. By. v. Callahan, 15 Circ. Dec. 115 (2 N. S. 326) ; Alexander v. Manderville, 33 111, App. 589; Searles v. Bailway, 101 N. Y. 661 [5 N. E. Rep. 66].

      A. H. Coldham, for defendant'in error
   KINKADE, J.

This was an action in the court of common pleas to recover damages for injuries sustained by the negligence alleged of the plaintiff in error here, the defendant below, in the constructing and maintaining of a toilet room in their store, and negligence arising by reason of their having no light in the passageway leading to this toilet room. Plaintiff claimed to have gone in without negligence on her part, and by reason of the darkness was unable to discover what she alleges to be a defect in construction, to wit, a step leading into the toilet room at the end of the hall farthest from the door through which she first entered, and by reason of there being no light, she fell and injured herself seriously as set up in the petition. She describes in the petition what her injuries are. The defendant answered, denying all negligence and setting up contributory negligence, and alleging particularly that the plaintiff was in such a state of intoxication that she was not in shape to take care of herself and that her injury resulted from a fall that was caused by her own condition and want of care.

A large amount of testimony was taken on the issues presented by the pleadings, and the plaintiff recovered a judgment for the sum of $2,000. At the close of the plaintiff’s testimony, a motion was made by the defendant for a verdict, and a like motion was made at the close of all the testimony, and following the verdict, a motion made for a judgment notwithstanding the verdict. All of these motions were overruled, and as we think from an examination of the record, correctly overruled.

The testimony is in very great conflict as to one matter, and that is, as to whether the place that was complained of was lighted or not. There are a large number of witnesses for the defendant below, testifying that the light was there, and that the light was burning. There are witnesses testifying to the contrary in behalf of the plaintiff, that no light was there. The witnesses who testified on behalf of the defendant also testified that the party complaining, Mrs. Williams, was in an intoxicated condition.

As I have said, the testimony is in great conflict in this regard, and we think it was very properly submitted to the jury. The plaintiff in the action below, Mrs. Williams, met the testimony relative to her intoxicated condition with testimony tending to show that that was not only not her condition at that time, but that it was a trait or propensity that she did not have at all; that she was not in the habit of getting intoxicated, had never been intoxicated, etc. Therefore if the witnesses who testified as to her condition were mistaken in that regard by reason of its being some other party, if they were mistaken in the identity of the party, then they might have been mistaken as to the day they were talking about, and the volume of testimony which they offer relative to the light being there may have related to a different time. We think upon the whole that the jury, was justified in returning the verdict it did and the court was entirely right in not directing a verdict at either time it was requested, as I have stated.

We find prejudicial error in this record in one regard only, and that is with respect to the injuries that were produced. Evidence was admitted in the case over the objection of the defendant that the plaintiff had sustained injuries other than those set forth in the petition, and injuries of a serious character — injuries such as testified to by physicians in the case, as might have resulted from the intoxication, if that were true. It is not necessary to cite authorities upon the proposition that the plaintiff should be required to state the injuries of which she complains, and that the action should be tried on the issues made in the pleadings.

A very important case has recently been before this court, the case of the Lake Shore Elec. Ry. v. Hobart, 32 O. C. C. 154 (13 N. S. 592), in which it was held that the judgment of the court of common pleas must be reversed because the court permitted proof of an injury substantial in character, other than those alleged in the petition. Counsel are or can become familiar with that case. It is in line with many other decisions of the same character. This testimony was not only admitted over the objection of the defendant,, but when the court came to charge the jury in this case, the court charged the jury that the plaintiff had claimed these additional injuries about which the testimony was received, when the fact is that they are not mentioned in the petition. The charge of the court is in accordance with the. evidence, but we think neither the charge of the court nor the evidence is in accord with the petition, and for the two errors, to wit, admitting the evidence of other injuries over the objection of the defendant and the charge of the court submitting these matters to the jury, this case will have to be reversed. The judgment of the court of common pleas will therefore be reversed.

Parker and Wildman, JJ., concur.


author: KINKADE, J. WILDMAN, J.,

text:
    EVIDENCE — EXECUTORS AND ADMINISTRATORS.
    [Lucas (6th) Circuit Court,
    December 4, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Mary W. Tolerton, Excrx. v. Clementine B. Robinson.
    Letter Answering Letter' Written by Decedent Not in Evidence Held Incompetent in Action Against Decedent’s Estate.
    It is not competent for a plaintiff, who is disqualified from testifying in the case by reason of the decease of the defendant, to offer in .evidence the answer to a letter written by the decedent concerning the subject-matter of the suit, where the original letter is not in court and the answer contains a self-serving declaration and would, if received in evidence, be in effect permitting the plaintiff to testify.
    Error from common pleas court.

      Marshall & Fraser, for plaintiff in error.
    O. 8. Brumback, for defendant in error:
    Cited and commented upon the following authorities:. 3 Wigmore, Evidence Sec. 2094, 2120; Keel v. Insurance Go. 20 Okl. 195 [94 Pac. Rep. 177]-; 1 Am. & Enc. Law 523; Mayes v. State, 64 Miss. 329 [1 So. Rep. 733; 60 Am. Rep. 58] ; Lake Shore & M. S. By. v. Herrick, 49 Ohio St. 25 [29 N. E. Rep. 1052] ; Gheeseman v. Kyle,-15 Ohio St. 15; Mimms v. State, 16 Ohio St. 221; New England Marine Ins. Go. v. De Wolf, 25 Mass. (8 Pick.) 56; Aiken v. Kenwison, 58 Vt. 665 [5 Atl. Rep. 757]; Scovill v. Glasner, 79 Mo. 449; Dole v. Young, 41 Mass. (24 Pick.) 250; Wohlfarth v. Chamberlcdn, 14 Daly (N. Y.) 178; Morris v. Vanderen, 1 U. S. 64 [1 L. Ed. 64] ; Wilkes v. Dinsman, 48 U. S. (7 How.) 87 [12 L. Ed. 618] ; Hinton v. McNeil, 5 Ohio 509 [24 Am. Dec. 315] ; Siites v. McKibben, 2 Ohio St. 588.
   KINKADE, J.

This is an action below against the estate of E. W. Tolerton to recover a sum of money said to have been retained by Mr. Tolerton belonging to the plaintiff: The plaintiff below recovered a judgment for $674.16, and Mrs. Tolerton, as executrix, is here to reverse that judgment of the court of common pleas.

Numerous errors are assigned, but only two are relied upon in the arguments of counsel, and those are, the error of the court arising by reason of having admitted two letters, one exhibit No. 7 and the other exhibit No. 10. Exhibit No. 7 is a copy of a letter written by Mrs. Robinson to Mr. Tolerton in his lifetime, and exhibit No. 10 is a letter written by Mr. Brumbaek, counsel for Mrs. Robinson, to Mr. Tolerton. Demand was made upon the executrix of the estate to produce the original letter that Mrs. Robinson is said to have written, and they replied that they had no such letter, and on the trial the plaintiff first offered in evidence an answer to that letter, which was a denial of all that was contained in it, and then made the proof that demand had been made for the original letter sent and inability to procure the original, and offered the copy, and the copy was objected to on the ground that it was permitting the plaintiff through her own letter to put into the case a self-serving declaration, and thereby in effect testify in the case, although she was herself disqualified from testifying because the action was against an administrator. It is contended here that because she had a reply to the letter, it is competent, and that the form of. the reply is of no moment; that the reply shows that Mr. Tolerton got some form of letter from her, and no matter whether he said he admitted the statements in the letter or whether he denied the statements in the letter, that the letter is competent because it is a part and parcel of the correspondence. Mrs. Robinson, as I say, introduced the- reply of Mr. Tolerton herself as the basis of making her own letter that she proves by a copy to be competent, and then she put before the jury a full statement of her claims in that case, stating in the letter what Mr. Tolerton said to her and so on, although it is flatly and squarely denied by Mr. Tolerton in his reply.

We think upon a full consideration of the ease that it would be a most dangerous rule to adopt that a party might put into the case a letter that they had written where the contents of the letter were clearly denied by the answer, or where he had no answer at all. If that may be done, it seems to us that it would open up a very dangerous bar through which unscrupulous parties might reach the assets of an estate, to the great detriment of the estate. It is not intended by anything said here to intimate that Mrs. Robinson is an unscrupulous person, or is seeking to do anything of that kind. There is nothing in the record that would justify such statement, and we wish it distinctly understood that we are not intimating anything of the kind. But the rule laid down must be applicable to everybody as well as Mrs. Robinson, and her contention broadly is, that if she writes a letter and is able to prove that she wrote a letter of a given tenor, that it was mailed bearing the usual postage, and probably received, that she has the right to prove that letter in a trial against the estate where she herself _is incompetent to testify, no matter to what extent it is a self-serving declaration in her behalf; and I think her counsel goes to the length of claiming that she might do this even though she has no reply. In this case we think she stands no better than she would stand had she no reply, because the reply is a flat denial of the claims made in the letter. The court below admitted both letters. Mr. Brumback’s letter was one addressed to Mr. Tolerton, making some claims against him, setting out certain figures of the state of the bank account, etc. They were both admitted in evidence. We think that the court erred in admitting each of them. The majority of the court is of this opinion, and for that reason the judgment of the court of common pleas will be reversed.

PARKER, J., concurs.

WILDMAN, J.,

dissenting.

I do not deem it proper to enter into any discussion in the case in which the opinion has just been announced by Judge Kinkade, but I will content myself by saying I do not concur in the judgment of the majority of the court.


author: SWING, J.

text:
    CONTRACTS — EXECUTORS AND ADMINISTRATORS.
    [Hamilton (1st) Circuit Court,
    November, 1910.]
    Giflien, Smith and Swing, JJ.
    Julia Thompson v. Louisa B. Jones.
    ]. Family Relation Gratuitous Service not Implied In Case of Brother with Means, Uninvited, Living with Married Sister and not Contributing to Support of Her Family.
    The “family relation” upon which no obligation to pay for services rendered to a member of a family can be implied is based' on that borne to the family as a. whole; mere blood relationship such as brother and sister — in this case a brother in poor health, abundantly able to pay for his board and care, going without invitation to live with a married sister not having any means of her own, and contributing in no way to the maintenance of his sister’s family by work or money — does not compel the inference of gratuitous service'exempting the estate of the brother from payment for services rendered him by his sister. Hinfcle v. Sage, 67 Ohio St. 256, distinguished.
    2. Technical Failure to Give Instructions Before Argument- not Sufficient to Reverse Judgment Where Evidence Permits no Other. Conclusion Than Reached by Jury.
    While it is the duty of the court to give the jury proper instructions which counsel have requested the court to give before argument, and a refusal to give instructions is error, a judg ment will not be reversed because of such refusal where the technical reason for a reversal is the only reason that can be suggested, and the uncontradicted evidence admits of but one conclusion as to the facts and that is the conclusion at which the jury has arrived.
    Error, to common pleas court.

      Fulton & Woost, for the plaintiff in error.

      Darby & Benedict, for defendant in error.
   SWING, J.

The action below was by Louisa B. Jones against the administrator of her brother’s estate for board and services rendered her brother, Peter Edward Fritsch. The only evidence offered on the trial of the ease was offered by the plaintiff and it is all contained in the bill of exceptions. The jury returned a verdict for the plaintiff, and also answered two interrogatories. The first was as follows:

“Did the deceased, Peter Edward Fritseh, shortly after going to the home of the plaintiff, Mrs. Jones, promise to pay her for his board, care and attention to him while he was there, and did she thereafter in consideration of such promise furnish to him such board, care and attention? Answer, yes.”

Before argument to the jury counsel for defendant asked the court to charge the jury that before the plaintiff could recover in the action the contract must be established by clear and unequivocal proof, relying on the law as laid down in the case of Hinkle v. Sage, 67 Ohio St. 256 [65 N. E. Rep. 999]. This was requested in three different' charges, each of which the court refused to give.

It is the duty of the court to give to the jury a proper instruction which counsel has requested the court to give before the argument, and the refusal to give such instruction is error. It can not be questioned but what the law as laid down in Hinkle v. Sage, supra, is the law of the state as to like eases. So that the only question is as to whether this ease is one falling under that holding. It is very doubtful whether this case comes within the rule of Hinkle v. Sage. The “family relation” spoken of in that ease and similar cases does not rest wholly on the blood relationship of the parties, but rather the relation that is borne to the family as a whole. There is no reason why a brother boarding with a sister should not pay for his board the same as a stranger if he does not in turn render to his sister some more recompense than a stranger. A sister is more likely -to give to a brother than to a stranger, but where the circumstances show there is no reason to'make a gift, none should be inferred simply because of the relationship.

In the present case the only fact' which tends to show any family relationship is the fact that Louisa B. Jones was a sister of Peter Edward Fritseh. He went to her house uninvited. She was living with her husband on his farm. It does not appear that the sister had any means of her own. It does appear that Peter Edward Fritseh had stocks and bonds and was abundantly able to pay for his board. It further appears that Peter Edward Fritseh was in poor health while at his sister’s and part of the time was very sick, requiring constant attention with considerable expense for medicine and washing, and it further appears that, during this time he did not in any way contribute ,to the maintenance of the family. He performed no work and paid no money which aided in its support. The evidence is clear and positive and uncontradieted that he promised to pay for his board and the expenses incurred by his sister in his behalf, and we think it must clearly be inferred from the evidence that his sister rendered the services, relying on his promise to pay for them. This seems to be the only rational conclusion to be drawn from the evidence and this was the conclusion reached by the .jury in their general verdict and in their special findings. To reverse this judgment under these circumstances for the reason that the court should have given the instruction before argument, as requested by counsel for the defendant, would seem to be purely technical and not substantial. When the evidence is all before the court and the uncontradieted evidence admits of but one conclusion and that conclusion is the one which the jury has arrived at, any errors of law found in the charge of the court would appear to be unprejudicial and should be disregarded.

Giffen and Smith, JJ., concur.


text:
    NEGLIGENCE — PLEADING.
    [Lucas (6th) Circuit Court,
    December 4, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Marine Boiler Works Co. v. Harry W. Shuck.
    Allegation That Cogwheels Exposed “Were Not Covered” Held Insufficient.
    A petition for damages on account of injuries alleged to be due to exposed cogwheels under R. S. 4364-89c (Gen. Code 1027). does not state facts sufficient to constitute a cause of action where the petition merely avers that the wheels complained of “were not covered,” and does not allege that no railing had been placed around them.

      Error to common pleas court.

      F. H. Geer, for plaintiff in error.

      Schaufelberger & Willard, for defendant in error.
   KINKADE, J.

This was an action in the court of common pleas to recover damages for a personal injury by reason of falling upon some unprotected cogwheels that were a part of a gang drill at which the plaintiff, Harry W. Shuck, was working. The plaintiff set out in his petition that the cogwheels what caused the injury were unprotected; were . uneovéred, to use the language Of the petition. The defendant moved the court to require the petition to be made more definite and certain, then filed a demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action; then filed a motion for judgment on the pleadings; then filed an answer denying all negligence and alleging and setting up contributory negligence. The ease went to trial and after the evidence of the plaintiff was in, the defendant then moved for a directed verdict in behalf of defendant, which was overruled, and exception taken, and the jury returned a verdict in favor of the plaintiff for $2000, and this is a proceeding in error to reverse that judgment.

A number of errors are assigned for our consideration, all of which have been examined, and I will say with respect to all of them except one that we do not think it is necessary to pass upon them. It is the opinion of the majority of the court ' that the error involved in stating the measure of damages that the plaintiff was entitled to recover, if entitled to recover anything, is sufficient to justify a reversal of this case. That was the opinion of the majority of the court, and as I have said, there are a number of other errors of more or less importance that we have given attention to; but we think it is not necessary to pass upon them in view of the conclusion that v7e have reached.

As I have said, the defendant filed a demurrer to the plaintiff’s petition, and our attention was directed in argument here to one particular thing about this petition, and that is, as to whether it makes such allegations as bring the case within the statute. The allegation in the petition — I read but a single paragraph — is as follows:

“The defendant on the day aforesaid was negligent in failing to have said gearing or cogwheels covered so as to prevent the clothing and hand or other part of one operating said drill from being cut and mangled therein. The defendant was also negligent in not providing the operator of said machine with a reasonably safe place 'to work, and in failing to make provision to keep the place where he was required to stand from becoming slippery and dangerous.”

It is said that this does not fall within the statute under which this action was prosecuted, for the reason that the statute does not require cogwheels to be covered, and our attention is called particularly to the language of the statute in this regard. It is said on behalf of the petition that this court in the case of Zier v. Paper Co. (not reported) had held that exposed cogs should be covered or protected, and that the court had practically held the same thing with reference to band wheels in the case of Gruzinski v. Brush & Broom Co. (not reported). We have examined those cases and think the contention of counsel for the plaintiff below, the defendant in error here, is well taken. We think the court did substantially make that statement, but there was nothing in either case, as far as we can find, calling the attention of the court to the particular language of the statute, as to whether cogwheels fell within the class that is to be boxed or covered. The point is made in this case for the first time in this court, and we have read this statute with much care, and commend it to the careful reading of counsel.

It-will be observed that R. S. 4364-89e (Gen. Code 1027) groups a number of different kinds of machinery, and provides' what shall be done with respect to these particular groups. Speaking for myself alone, I have endeavored vigorously to read unboxed cogwheels into one of these groups, and I found myself unable to read it in. It seemed to all of us that the legislature, or the draughtsman of this bill at least, was perhaps intending to require that cogwheels, exposed cogwheels, should be covered or boxed. But that is not what the statute says, and no rule of construction that we know anything about will justify reading into this statute that which is "not there. I call attention particularly now t'o the language of the statute, and I read the classification preceding the one that is called in question here. The section says:

“and such ordinary care and such suitable provision shall include the casing or boxing of all shafting when operating horizontally near floors, or when in perpendicular or other positions operating between, .from, or through floors, or traversing near floors, or when operating near passageway, or directly over the heads of employees.”

It will be noticed that in that class of machinery the shafting operating in those particular relations shall be cased or boxed. The next group of machinery referred to is the cogwheels, and it reads as follows:

“the enclosure of all exposed cogwheels, fly wheels, band wheels, all main belts transmitting power from engine to dynamo, or other kind of machinery, and all openings through floors, through or in which such wheels or belts may operate, with substantial railing.”

The words “with substantial railing,” referred to, embrace “exposed cogwheels, fly wheels, band wheels, and all main belts transmitting power,” etc. The next group following this is the “railing in of all unused elevator openings,” etc. I need not read that. It is a long paragraph, but it is 'a group by itself, and following that is another group, and that group begins, “The guarding of all saws and other woodcutting and wood-shaping machinery, providing shifters for shifting belts,” etc.

It will be observed, as I have said, on a careful reading of this statute that there is nothing in the section which provides that exposed cogwheels shall be boxed or covered. The statute distinctly and plainly states that exposed cogwheels shall be enclosed with a substantial railing. It is perfectly apparent to anybody that a railing in front of cogwheels, if a man is obliged to have his hand near the cogwheels, might be sufficient to protect his body from getting into contact with the cogwheels, and at the same time havfe no effect in preventing his hand from coming in contact with the cogwheels and being ground off. Of course it is not the business of the court to legislate; it is our business to find out what the statute says and declare it, and after the fullest consideration we have unanimously arrived at the conclusion that this statute, insufficient though it may appear, in that form, provides only for a substantial railing to protect one operating near exposed cogwheels.

This petition does not allege at all that there was no' railing around these cogwheels. The allegation is, and it is the only allegation, the whole substance of the petition in that regard, “the defendant on the day aforesaid was negligent in failing to have said gearing or cogwheels covered so as to prevent the clothing, hands, or other parts of one operating said drill from being cut and mangled therein.”

It only alleges that the wheels were not covered. It does not allege at all that there was no railing, and that being true, we are very clearly of the opinion that the petition was demurrable, and that the general demurrer on the ground that it did not state facts sufficient to constitute a cause of action should have been sustained, and the judgment will be entered here which the court of common pleas should have entered, sustaining the demurrer and dismissing the petition for the reason that it does not state a cause of action.

Parker and Wildman, JJ., concur.


text:
    MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    December 3, 1910.]
    GifCen, Smith and Swing, JJ.

       Cincinnati (City) v. Anna M. Renner.
    Consequential Damages From the Escape of Water From Municipal Mains not Recoverable in Absence of Negligence.
    A municipal corporation is not controlled by the principle th;.t one who collects and keeps anything likely to do mischief if it escapes, dpes so at his peril, where it is acting under legislative authority and without any showing of negligence; hence where a break in a water pipe in the street is immediately repaired, municipality is not answerable to a pedestrian who fell on a sheet of ice which formed on the sidewalk from, water which had escaped from the broken pipe.
    Error to common pleas court.

      Walter M. Schoenle, assistant city solicitor, for plaintiff in error.

      J. It. Jordan and Frank M. Goppock, for defendant in error.

       Affirmed, no op., Renner v Cincinnati, 86 O. S. 000; 57 Buil. 220.

   SWING, J.

This was an action in the court of common pleas by Anna M. Renner against the city of Cincinnati for damages for an injury to said plaintiff. The gist of the action is thus set forth in the petition:

“That on the third day of February, 1905, the defendant had wrongfully permitted the water.from one of its pipes of its water works system to run out and over the sidewalk * * * and to become frozen on said sidewalk so as to make a coating of ice on said sidewalk, and to make said sidewalk dangerous to persons lawfully using the same, and of which dangerous condition of said sidewalk the defendant had due notice * * * and while ' plaintiff was lawfully passing along said sidewalk, not knowing its dangerous condition, she slipped upon the ice on said sidewalk.” # # *

There is really no conflict in the evidence. In brief it is as follows: One of the water pipes of the city, in Hamilton avenue, burst, by reason of which the water from said pipes overflowed the immediate sidewalk and became frozen on said sidewalk, and the plaintiff walking on the same slipped and fell and broke her leg.

Within an hour or so after the pipe burst the city had a gang of men repairing the pipe in the street, but took no means to remove the water that had flowed onto the sidewalk; nor did the city use any means to notify persons using said sidewalk that the same was dangerous. There was no defect in the sidewalk. There was no evidence to show that the city had notice of the ice on the sidewalk and the ice did mot form until a few hours before the accident. The jury found that the city shut off the water in a reasonable time and that the break in the water main was not caused by any negligence of the city. The water was caused to flow on the sidewalk by the bursting of the pipe. •

It follows, therefore, that if the plaintiff can recover on the ground of negligence on' the part of the city, that it must be from the negligence of the city, if any, in permitting the water to remain on the sidewalk and become frozen. ' The evidence does not show that the city had actual notice of the icy condition of the sidewalk, or that it was dangerous to foot travel; nor do we think that under the circumstances of this ease that the city was bound to know of its condition. From these conclusions it'follows that no recovery can be had against the city on the ground of negligence.

In argument in this court counsel for Mrs. Renner said that they based their ground for recovery on the principles -announced in the case of Fletcher v. Rylands, 3 Eng. & Ir. App. 330. In referring to this case Bradbury, Judge, in Defiance Water Co. v. Olinger, 54 Ohio St. 539 [44 N. E. Rep. 238; 32 L. R. A. 736], quotes with approval from Blackburn, J., the following, as showing the true principle on which that decision rests :

“We think the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. ’ ’

We are not aware that this principle has been applied to a case of this kind. No decision has been cited to us and we have not been able to find any in which a municipal corporation has been held answerable in damages except on the ground of negligence.

The Supreme Court of Ohio has quoted with approval.the following from Wharton, Negligence Sec. 869:

“When the legislature has sanctioned and authorized the use of a particular thing and it is used for the purpose for which it was authorized and every precaution has been observed to prevent injury, the sanction of the legislature carries with it this consequence, that if damage results from the use of such thing independently of negligence, the party using it is not responsible.”

Mr. Wharton quotes the above language from the opinion of Lord Cockburn in the case of Vaughan v. Railway, 5 H. & N. 685. No further authority need be quoted by us t'o sustain- this ■ proposition. If it were not the law we may assume that it would not have been so stated by Mr. Wharton.

The legislature authorized the]city of Cincinnati to construct and maintain water pipes in the streets of the city, and it can only be answerable in damages for their construction and maintenance by reason of some negligent act committed or omitted. No negligence having been shown, the court should have directed a verdict for the city at the conclusion of the evidence.

Judgment reversed and judgment for the city.

Giffen and Smith, JJ., concur.


author: SMITH, P. J.

text:
    .MUNICIPAL CORPORATIONS — RAILROADS.
    [Hamilton (1st) Circuit Court,
    July, 1911.]
    Smith, Swing and Jones, JJ.

       Cincinnati Gas, Coke, Coal & Min. Co. v. Baltimore & O. S. W. Ry.
    Placing Two Railway Tracks in Narrow Street Not an Exclusive Occupation Thereof.
    ' The placing of a second railway track in a street from thirty-six to forty feet in width between the curbs does not amount to a destruction of or an exclusive occupancy of the street; injunction against" such use of the street will not lie upon the petition of abutting property owners, especially since an action by one railway company to condemn their rights in the street is pending. To effect the purpose of the two railroads the track formerly in the center of the street may be moved from the center to one side of the street in order that the new track may be laid on the other side.
    Appeal from common pleas court.
    The trustees of the Cincinnati Southern Railway acting under See. 3 of supplemental act 70 O. L. 139, resolved, in 1903, to lay a track on Front street in Cincinnati for the purpose of connecting its line with its freight depot at Vine street, and received the assent of the board of the proper officials so to do. In 1910 it passed a resolution condemning the rights of the abutting property owners on said street, for the purpose of laying said track, and to that end to move a track of the Baltimore & Ohio Southwestern Railroad, which was already in the street, six feet to the southward, so that when the construction should be finished there would be two tracks in the street. The street is sixty feet wide in some places and sixty-six feet wide in others, and the roadway, from curb to curb, is thirty-six feet wide in places and forty feet wide in other places. The Baltimore & Ohio Southwestern Railroad entered into an agreement with the trustees of the Southern Railway, consenting to the making of this alteration in the location of its track. The trustees then began a suit in the court of insolvency to condemn the rights of the abutting property owners along the street for the purposes aforesaid. The design of the trustees to change the location of the Baltimore & Ohio track appeared upon the face of the application to assess compensation. The abutting property owners then began this suit in the court of common pleas to enjoin the trustees from laying the track in Front street and from removing or altering the location of the Baltimore & Ohio Southwestern Railroad track.
    The abutters contended that the placing of two tracks in the street would amount to a destruction of the street and that this was beyond the power of the trustees, and that it was also beyond the power of the trustees to change the location of the Baltimore & Ohio Southwestern track, whatever might be the rights of the trustees with regard to the Southern Railway track. The court of common pleas found- that although the trustees, under the act in question, would have a right to take the whole street, its proposed use did not constitute such a taking but that the trustees did not have a right to alter the location of the existing Baltimore & Ohio Southwestern Railroad track in the street, and granted an injunction against doing so, from which the trustees of the Cincinnati Southern Railway took an-appeal to the circuit court.

      Pogue é Pogue, Strieker & Johnson, Albert Bettinger, Kramer <& Bettman, Healy, Ferris & McAvoy, Wm. C. McLean and Miller Out&dlt, for plaintiff.

      Edward Colston, for the Baltimore & Ohio Southwestern Railroad Company.

      John W. Peck, for the Trustees of the Cincinnati Southern Railway.

      Affirmed no op., Cincinnati, G. C. C. & M. Co. v. Railway, 86 O. S. 343.

   SMITH, P. J.

The court feels that there is no need of further consideration of this cause. We are unanimous that 'no injunction should be granted and that the petition should be dismissed. We are of the opinion, in the first place, that the question presented here could and should be presented in the insolvency court. If that is not so, we think there is no exclusive' occupancy of Front street proposed, and that the trustees have full power to proceed as they are proceeding. As to carrying out the contract between the trustees and the Baltimore & Ohio Southwestern Railroad Company, we believe that the power of the trustees is ample; that in occupying Front street by the track of the Southern Railway, the trustees have ample power to move the Baltimore & Ohio track, and further, upon the evidence, the usage proposed is not an interference with the public use of the street as would destroy such use.

Swing and Jones, JJ., concur.


author: WINCH, J.

text:
    DEATH — RAILWAYS.
    [Lorain (8th) Circuit Court,
    April 19, 1912.]
    ■Marvin, Winch and Niman, JJ.
    Margaret Waring v. Baltimore & Ohio Ry.
    Action for Death Occurring in Another State of Nonresident Employe of Railway Engaged in Interstate Commerce is Maintainable in this State under Federal Employers’ Liability Act.
    The general rule that no action can be maintained in the courts of this state upon a cause of action for wrongful death occurring in another state, except where the person wrongfully killed was a citizen of Ohio, is so modified by the Federal Employers’ Liability act, of April 22, 1908, regulating the liability of interstate railway carriers for the death or injury of their employes while engaged in interstate commerce, as to' permit the maintenance of such action by the proper representative of a deceased employe of an interstate railway carrier, though said employe was not a citizen of Ohio and was killed in some other state.
    [Syllabus by the court.]
    Error to common pleas court.'

      C. W. Dille, Joseph L. Stern and F. M. Stevens, for plaintiff in error.

      J. M. Lessick, Charles Lessick and E. C. Johnson, for defendant in error.
   WINCH, J.

The plaintiff is a citizen of Pennsylvania, where she was duly appointed administratrix of the estate of her deceased husband, J. S. Waring, who at the time of his death was also a citizen of that state.

In her representative capacity, she brought suit in Lorain county, Ohio, for the benefit of herself, as widow, and the child of the deceased, against the railroad ' company, upon, which due service was made, to recover for the alleged wrongful! death of her husband.

She alleged in her petition that the defendant was a common carrier by railroad, engaged in commerce between the states of Pennsylvania and West Virginia; that the deceased at the time of his death, in- January, 1910, was employed as a locomotive fireman on a passenger train then running between the cities of Pittsburg, Pennsylvania, and Wheeling, West Virginia, and while so employed was killed in the state of Pennsylvania by the negligent acts of the officers, agents and employes of said carrier, for which wrongful death she prayed damages. Her petition showed a right to; recover under an act of congress relating to the liability of common carriers by railroad to their employes in certain eases, approved April 22, 1908, if that act is controlling in the case.

If the state law regulating such actions, then known as R. S. 6134a, is controlling, she was not entitled to maintain her action, for her decedent was not a. citizen of Ohio at the time of his death, • and the Supreme Court of this state, construing said section of the Eevised Statutes in the case of Baltimore & O. Ry. v. Chambers, 73 Ohio St. 16 [76 N. E. Rep. 91; 11 L. R. A. (N. S.) 1012], has said:

“No action can be'maintained in the courts of this state upon a cause of action for wrongful death occurring in another state, except where the person wrongfully killed was a citizen of the state of Ohio.”

The common pleas court followed the Ohio legislative act and decision referred to, and sustained a demurrer to the petition. Its ruling in that respect is here for review, with the added light thrown on the subject by the decision of the Supreme Court of the United States in the case of Mondou v. Railway, 223 U. S. 1 [32 Sup. Ct. Rep. 169], decided by that court January 15, 1912, some ten days after the decision in the case under discussion. Unfortunately, each side in this controversy cites the Mondou case as in'his favor, Paragraphs 7 and 8 of the syllabus of that case are as follows:

“The enforcement of rights under the employers’ liability act of April 22, 1908, regulating the liability of interstate railway carriers for the death or injury of their employes while engaged in interstate commerce, cannot be regarded as impliedly restricted to the federal courts, in view of the concurrent jurisdiction provision of the judiciary act of August-13, 1888 (25 Stat'. at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 508), See. 1, and of the amendment made by the act of April 5, 1910 (36 Stat. at L. 291, chap. 143), to the original employers’ liability act, which instead of granting jurisdiction to the state courts, presupposes that they already possess it.
“Jurisdiction of an action to enforce the rights arising under the employers’ liability act of April 22, 1908, regulating the liability of interstate railway carriers for the death or injury of their employes while engaged in interstate commerce, may not be declined by the courts of a state whose ordinary jurisdiction as prescribed by local laws is adequate to the occasion, on the theory that such statute is not in harmony with the policy of the state, or that the exercise of such jurisdiction -will be attended by inconvenience and confusion because of the -different standards of right established by the congressional .act and those recognized by the laws of the state. ’ ’

Difficulty in the application of the law thus stated grows nut of the use of the expression: “courts of a state whose ordinary jurisdiction as prescribed by local laws is adequate to the occasion.”

For plaintiff it is urged that this means courts of general jurisdiction in which transitory' civil actions, such as this one is, are cognizable, and that the common pleas court of Ohio is such a court.

Defendant claims that the common pleas court of Ohio is limited by local laws in its jurisdiction over actions for wrongful death occurring in another state, to those eases where the person wrongfully killed was 'a citizen of Ohio, and,* therefore, that the jurisdiction of said court is not adequate to this occasion.

Some support for this view is claimed in the following quotations from the opinion in the case, which was delivered by Mr. Justice Van Devanter:

“We come next to consider whether rights arising under the congressional act may be enforced, as of right, in the courts of the states when their jurisdiction, as prescribed by local laws, is- adequate to the occasion. The first of the cases now before us (the Mondou case) was begun in one of the superior courts of the state of Connecticut, and, in that ease, the supreme court of errors of the state answered the question in the negative. That, however, was not because the ordinary jurisdiction of the superior .courts, as defined by the constitution and laws of the state, was deemed inadequate or not adapted to the adjudication of such a case, but 'because the supreme court of errors was of opinion (Í) that the congressional act impliedly restricts the enforcement of the rights which it creates to the federal courts, and (2) that, if this be not so, the superior courts are at liberty to decline cognizance of actions to enforce rights arising under that act, because (a) the policy manifested by it is not in accord with the policy of the state respecting the liability of employers to employes for injuries received by the latter while in the service of the former, and (b) it would be inconvenient and confusing for the same court, in dealing with eases of the same general class, to apply in some the standards of right established by the congressional act, and in others the different standards recognized by the laws of the state.”
“Because of some general observations in the opinion of the supreme court of errors, and to the end that the remaining ground of decision advanced therein may be more accurately understood, we deem it well to observe that there is not here involved any attempt by congress to enlarge or regulate the jurisdiction of state courts, or to control or affect their modes of procedure, but only a question of the duty of such a court, when its ordinary jurisdiction,, as prescribed by local laws, is appropriate to the occasion, and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under the act of congress, and susceptible of adjudication according to the- prevailing rules of procedure. We say ‘when its ordinary jurisdiction, as prescribed by local laws, is appropriate to the occasion, ’ because we are advised by the decisions of the supreme court of errors that the superior courts of the state (Connecticut) are courts of general jurisdiction, are empowered to take cognizance of actions to recover for personal injuries and for death, and are accustomed to exercise that jurisdiction, not only in' cases where the right of action arose under the laws of that state, but also in cases where it arose in another state, under its laws, and in circumstances in which the laws of Connecticut give no. right of recovery, as where the causal negligence was that of a fellow servant.”

The trouble with the application here sought to be made of the paragraphs quoted is that it fails to distinguish between laws conferring jurisdiction on courts, or the power and authority to administer remedies, and laws creating rights and remedies.

The constitution of Ohio, Art. 4, Sec.- 4, provides that:

“The jurisdiction of the courts of common pleas, and of the fudges thereof, shall be fixed by law;” and Gen. Code 11215 provides that:
“The court of common pleas shall have original jurisdiction in all civil cases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace, ’ ’ etc.

Here is adequate jurisdiction to hear and determine plaintiff’s case, if she has any right of action. Of course, if she has no right of action in Ohio, then we say that the courts of Ohio have no jurisdiction to entertain her complaint, and thus we use the word ‘‘jurisdiction” in two senses. But the matter is made clear by further quotations from the opinion of Mr. Justice Yan Devanter :

‘ ‘ The suggestion that the act of congress is not in harmony with the policy of the state, and therefore that the courts of the state are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. When congress, in the exertion of the power confided to it by the constitution, adopted that act, it spoke for all the people and all the states, and thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly ,in the courts of the state. As was said by this court in Claflin v. Houseman, 93 U. S. 130, 136, 137 [23 L. Ed. 833, 839]:
“ ‘The laws of the. United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty as regards the several states, but is a concurrent, and within its jurisdiction, paramount, sovereignty. * * * If an act of congress gives a penalty (meaning civil and remedial) to a party aggrieved, without specifying a remedy for its enforcement, there is .no reason why it should not be enforced, if not provided otherwise by some act of congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief; because it is subject also to the laws, of the United States, and is just as much bound to recognize these as operative within the state as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. * * * It is true, the sovereignties are distinct, and neither can interfere with the proper jurisdiction of the other, as was so clearly shown by the Chief Justice Taney, in the ease of Ableman v. Booth, 62 U. S. (21 How.) 506 [16 L. Ed. 169]; and hence the state courts have no power to revise the action of the federal courts, nor the federal, the state, except where the federal constitution or laws are involved. But this is no reason why the state eourts should not be open for the prosecution of rights growing out of the laws of the United States, to which their jurisdiction is competent, and not denied.’ ”

How then stands the law in Ohio to-day? When the Chambers case was affirmed by a divided court in the Supreme Court of the United States, Mr. Justice Moody said, in Chambers v. Railway, 16 O. F. D. 123, 124 [207 U. S. 142]:

“There was no other statutory provision on the subject. The Supreme Court held that the action authorized by this statute for a death occurring in another state was only when the death was that of a citizen of Ohio; that the common law the state forbade such action; and that, as the person for whose death damages were demanded in this case was not a citizen of Ohio, the action would not lie.”

It is quite evident, from a perusal of the several opinions in the Chambers ease, that the courts did not doubt the adequacy of the jurisdiction of the eourts of Ohio, but held that there was nothing in that case, no cause of action, for that jurisdiction to operate upon.

But now, in this ease, we have another statutory provision on the subject, an act of congress, which we are bound to recognize as operative within the state.

Quoting further from the Mondou case:

“True, prior to the present act, the laws of the several states were regarded as determinative of the liability of employers engaged in interstate commerce for injuries received by their employes while engaged in such commerce. But that was because congress, although empowered to regulate that subject, had not acted thereon, and because the subject is one which- falls within the police power of the states in the absence of action by congress. Sherlock v. Alling, 93 U. S. 99 [23 L. Ed. 819]; Smith v. Alabama, 124 U. S. 465 [8 Sup. Ct. Rep. 564; 31 L. Ed. 508]; Nashville, C. & St. L. Ry. v. Alabama, 128 U. S. 96 [9 Sup. Ct. Rep. 28; 32 L. Ed. 352, 353]; Reid v. Colorado, 187 U. S. 137 [23 Sup. Ct. Rep. 92; 47 L. Ed. 108], The inaction of congress, however, in no wise affected its power over the subject. Rodd v. Heartt, 88 U. S. (21 Wall.) 558 [22 L. Ed. 654] ; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 [5 Sup. Ct. Rep. 826; 29 L. Ed. 158], And now that congress has acted, the laws of the states, in so far as they cover'the same field, are superseded, for necessarily that which is not supreme must yield to that which is. Gulf, C. & S. F. Ry. v. Hefley, 158 U. S. 98 [15 Sup. Ct. Rep. 802; 39 L. Ed. 910]; Southern Ry. v. Reid, 222 U. S. 443 [32 Sup. Ct. Rep. 140; 56 L. Ed. 263]; Northern Pac. Ry. v. Washington, 222 U. S. 369 [32 Sup. Ct. Rep. 160; 56 L. Ed. 237].”

Yielding, therefore, to the highest law of the land, we hold that R. S. 6134a, now Gen. Code 10771, and the ease of Baltimore & O. Ry. v. Chambers, supra, no longer apply to an action for wrongful death of an employe occasioned by the negligence of a common carrier by railroad while engaged in interstate commerce. They are superseded by the paramount act of congress.

As the legislature of Ohio could amend R. S. 6134a and thereby change the rule laid down by the Supreme Court in the Chambers case, so the congress of the United States, under the commerce clause of the federal constitution, can render inapplicable both the legislative act and the decision of the state court to such cases as come within the terms of the federal act, as this one does.

The judgment of the common pleas court is reversed, and the cause remanded, with instructions to overrule the demurrer to the petition, and for further proceedings according to law.

Marvin and Niman, JJ., concur.