text:
    PLEADING — INSURANCE, LIFE — ERROR—ESTOPPEL.
    [Wyandot (3rd) Circuit Court,
    January Term, 1904.]
    Day, Mooney and Norris, JJ.
    Northwestern Nat. Life Ins. Co. v. Jay H. Hare.
    1. Whest Answer Supplies Omitted Allegation op Petition Overruling op Demurrer not Error.
    When tlie answer supplies an omitted and necessary allegation of the petition, the error of the trial court in overruling a demurrer thereto ceases to he reversible error.
    2. Cause of Action for Damages Stated, When.
    A cause of action for damages in favor of plaintiff is stated when the petition, aided by the answer, sets forth broadly that defendant entered into a contract with plaintiff; that plaintiff fully performed-the contract on his part; that defendant renounced the obligation of an essential term thereof before its performance became due, and declared that it would not perform it when performance became due.
    S. Member op Life Association Ceases to be Member, When.
    When a life insurance association transfers all its assets and obligations to another company, which the latter assumes, a member of the retiring company, who ratifies such transfer of assets and assumption of obligations, thereby ceases to be a member of the retiring company.
    4. Insurer Cannot Appirm or Reject Policy in Part.
    A life insurance association company cannot affirm its policy of insurance In part and repudiate it in part, thereby confining the assured to one of the benefits therein provided for when he had paid for the right to elect between two benefits therein set forth Hence, when the obligation of the insurer was to pay $3,000 In event of death, or, at the election of assured, to pay in final settlement, at a certain date, an amount to assured in cash “equal to ten full annual premiums as paid by insured,” the company cannot, in such case, defend- against the election of assured to accept th'e latter option on the ground that such obligation was ultra vires the company, and at the same time insist that assured be held to and bound by the “whole life clause.”
    5. Premiums Paid Under Ultra Vires Policy May be Recovered — Damages.
    When an insurance association properly refuses to perform, before due, its contract of insurance on the ground that it is ultra vires the association, a cause of action quasi ex eontraotu immediately arises in favor of assured to recover all premiums paid. But if the contract is not ultra vires, and the disaffirmance is wrongful, the assured may treat the contract as discharged, and sue at once for damages for its breach; and the fact that recovery is asked of the premiums paid, instead of damages, is immaterial.
    6. Consolidated Company Assumes Valid Debts and Obligations of Constituent Companies.
    All the valid debts and liabilities of constituent life insurance companies are impliedly assumed by a new company formed by consolidation; the liability of the consolidated company being precisely the same as that of the respective constituent companies. Hence, premiums paid to a constituent company under an ultra vires policy of insurance, together with premiums paid to a predecessor of such constituent company (the latter having expressly assumed all the obligations of the original company, which assumption was ratified by assured), may be recovered from the consolidated company.
    7. Consolidated Company not Estopped fbom Plea dins Ultba Vibes Contbacts op Constituent Companies.
    An option contained in a life insurance policy was ultra vires the insurance company; the company closed its business, and was succeeded by another company which assumed its obligations, including the obligation under the option referred to; the transfer wat ratified by assured, and the payment of premiums continued by him to the successor company; the latter was afterwards absorbed by or consolidated with another company, which received, adopted and recognized the assured as one of its members: Held, the consolidated company was not estopped from pleading that the option was ultra vires the original and constituent companies, notwithstanding full performance on the part of the assured.
    8. Efbect op Failube to Mab.e Fubthee Payments op Premiums Under Ultra Vibes Policy.
    Failure of assured to make further payments of premiums under an ultra vires policy of insurance, cannot result in any forfeiture of his right to recover from the company the premiums already paid.
    Error to common pleas court of Wyandot county.
    In the orginal action commenced in the court of common pleas of this county, defendant in error was plaintiff and plaintiff in error was defendant.
    The petition states in substance that on May 5, 1891, the Omaha Eife Insurance Association of Omaha, Neb., entered into a contract of life insurance with plaintiff and then issued its policy of life insurance to him and thereby agreed in consideration of the payment by plaintiff to it of an annual premium of $42.36 payable in quarterly installments and due on the fifth day of each May, August, November and February during the continuance of said contract, that said association would pay, in the event of plaintiff’s death and timely and satisfactory proofs thereof, the sum of $3,000 to a named beneficiary. Said policy, among other things, also stipulated “ that at the expiration of ten years from the first day of January next ensuing the date of the incorporation and every year thereafter the managing board of directors shall declare a dividend from the reserve fund in excess of $100,000 and cause to be placed to the individual credit of each member who has maintained ten years un-unínterrupted membership in the association his equitable share thereof which sum thus issued is available and may be used by such member * * * (2) may be withdrawn and membership terminated.”
    The policy also provided that the sum which might be withdrawn “ shall be in amount not less than ten full annual payments as paid by the insured ” and if the reserve fund be found insufficient to meet this liability any deficiency therein shall be made good by transferring from the mortuary fund to the reserve fund such a sum as is required to make it good. If any member desired to so withdraw he was required to give .a certain notice of such desire and intention.
    The petition further states that after said policy was issued by said insurer and after it had been paid all premiums due to a certain time by plaintiff, said insurer transferred all its rights and interests in the said policy to .the Omaha Life Insurance Association of Minneapolis, Minn. Plaintiff paid all premiums to this succeeding association until a later date when the rights and the interests of the latter were in turn transferred by it to the National Mutual Life Insurance Association of Minneapolis, and after further payments by plaintiff the latter association transferred its interests in said policy to defendant. Plaintiff has paid the premiums falling due since the last transfer to defendant. It is alleged that all these associations were in fact one organization differing in name only, and that the stated transfers were made only because the said changes of the name rendered the same necessary. Plaintiff states that he gave due notice of his intention to withdraw his dividend under the quoted provisions of his policy; that defendant has not provided a fund to pay plaintiff, refuses to settle with him, has declared plaintiff’s policy forfeited and refuses to pay him the amount alleged to be due. Plaintiff prays to recover'that amount of ten full annual payments as made by him with interest from the date each payment was made. This action was commenced August 3, 1901.
    Defendant’s general demurrer to the petition was overruled. It then answered, (1) a general denial; (2) that the alleged assumption of said obligation of plaintiff’s policy is and was ultra vires defendant .and its immediate predecessor; (3) that no fund exists or has existed from which plaintiff can be paid and it is ultra vires defendant to create ■such fund; (4) that plaintiff failed to pay the quarterly premium on his policy due May 5, 1901, and that by reason thereof said policy under its terms became and at the commencement of this action was null and void.
    Plaintiff by reply denies all allegations of the answer and pleads an ■estoppel to the défense of ultra vires. ,
    Upon these issues the action was tried to a jury. Defendant at the trial objected to the introduction of any evidence by plaintiff for the assigned reason that the petition is fatally defective.
    This motion was overruled.
    At the close of plaintiff’s evidence defendant moved for a verdict. This motion was overruled. The motion was renewed at the close of all the evidence and was again overruled.
    The jury returned its verdict for plaintiff. Defendant’s motion for a new trial was overruled and judgment was entered for plaintiff upon the verdict. A bill of exceptions was duly taken embodying all the evidence and proceedings at the trial and defendant now prosecutes error here to reverse the judgment of the common pleas.
    The errors assigned embrace in general and in detail all the rulings made by the trial court adverse to defendant, and to all of which due exceptions were taken.
    Brown & Kerr and Carter & Goodrich, for plaintiff in error.
    Carey & Parker, for defendant in error.
   MOONEY, J.

If this action be viewed as one to enforce any of the terms of the policy it seems to be very clear that the petition does not state facts sufficient to constitute a cause of action. The stipulation of the policy as pleaded is that on January 1, next after the expiration of ten years from the date of incorporation of said Omaha Life Insurance Association of Omaha, Neb., a dividend will be declared, etc., and upon due notice and after ten years’ uninterrupted membership plaintiff may withdraw. Unless said association were incorporated prior to January 1, 1901, the time at which the dividend was first to be declared under this stipulation had not arrived on May 5, 1901, and the defendant in the original action could not have been in default when the action was commenced. There is no allegation in the petition as to the date of incorporation of said association and hence no default is charged against defendant.

Again, the stipulation does not require any dividend to be declared in favor of any member until 'his membership has been of ten years’ uninterrupted duration. The first dividend is to be declared on January “ and each year thereafter.” The meaning is “ and on January 1, of each year thereafter.” Plaintiff had not been a member for ten years on January 1, 1901, and hence he was not entitled to have a dividend then declared in his favor and this action was commenced before January 1, 1902, the earliest date at which defendant could be in default to plaintiff for failure to declare a dividend in his favor.

It is here contended by defendant in error that the action is not one to'enforce the contract or any term of it but to recover damages on account of the renunciation of the contract by defendant below.

While the allegations of the petition are somewhat indefinite upon the point, we are of opinion that it fairly appears from the pleading that defendant upon demand of a settlement as claimed by plaintiff, refused to make such settlement not for the reason that the time for settlement had not arrived but because defendant denied its obligation to make such settlement at any time. The uncertainty of the petition on this point is aided by the answer in which defendant denies the obligation. for the reason, among others, that the term of the contract is ultra vires all said associations. In such state of the record even if the demurrer should have been sustained to the petition, the error in overruling it ceases to be reversible error when the answer filed supplies an omitted and necessary allegation of the petition. Yocum v. Allen, 58 Ohio St. 280 [50 N. E. Rep. 909].

So aided by the answer, the petition states broadly that defendant having entered into a contract with plaintiff, renounced the obligation of an essential term of that contract before performance became due and declared that it would not perform that term of the contract when the time for such performance should fall due; wherefore plaintiff asks to recover the consideration paid by him to defendant, as full performance of the contract upon his part. We are of opinion that these facts entitle plaintiff to recover some amount as damages from defendant and this whether the terms of the policy were ultra vires or not.

If the contract be ultra vires and the insurance association properly refuses to perform, an action quasi ex contractu springs up in favor of Hare to recover the premiums which he has paid. Phoenix Life Assn. Ins. Co. In re, 2 Johns. & Hem. 441; Andrews v. Insurance Co. 37 Me. 256, 257; Miller v. Insurance Co. 92 Pa. St. 167; and see Insurance Co. v. Tullidge, 39 Ohio St. 240; see also Branch v. Jesup, 106 U. S. 468 [1 Sup. Ct. Rep. 495; 27 L. Ed. 279]; Central Transp. Co. v. Car Co. 139 U. S. 24 [11 Sup. Ct. Rep. 478; 35 L. Ed. 55]; Morville v. Tract Soc. 123 Mass. 129 [25 Am. Rep. 40] ; Davis v. Old Colony Railroad, 131 Mass. 258, 275 [41 Am. Rep. 221]; 5 Thompson, Corporations Sec. 6004; 1 Clark & Marshall, Corporations Sec. 215.

If the contract be not ultra vires and the disaffirmance be wrongful, the case is simply one of renunciation of the obligation of an essential term of a contract by a party before performance upon his part becomes due. In such case the other party may treat the contract as discharged and sue at once for damages for its breach. Clark, Contracts p. 644 et seq., citing cases.

The fact that the recovery sought is alleged to be for premiums instead of damages or for performance instead of damages for nonperformance, is immaterial. James v. Allen Co. 44, Ohio St. 226 [6 N. E. Rep. 246; 58 Am. Rep. 821].

It follows that in any view of the case the demurrer to the petition and the motions to direct a verdict for insufficient pleadings were properly overruled. We, are of the opinion that there is error in this record in the admission of evidence and in the charge of the court to the prejudice of plaintiff in error and in the refusal to charge as requested by defendant below. In this state of the record the judgment of the common pleas must be reversed unless upon the admitted or undisputed facts the judgment is well founded in law.

The facts either admitted or undisputed are these: On May 5, 1891, the Omaha Life Insurance Association of Omaha, Neb., issued its certificate of membership and policy of life insurance to defendant in error for $3,000, payable in the event and upon satisfactory proofs of his death to a named beneficiary. The insurer was a Nebraska assessment life insurance corporation. Premiums were payable as stated in the petition. Hare paid all premiums maturing until May 15, 1895, to said insurer and at this date “all the liabilities or obligations of the Omaha Life Insurance Association of Omaha, Neb., under any and all policies or certificates of insurance or membership in said association ” were assumed by the Omaha Life Insurance Association of Minneapolis, Minn., a Minnesota assessment life insurance corporation. The former association retired from business and transferred its assets and business to the latter corporation. The latter issued its certificate to defendant in error and thereby undertook “to bind itself to perform the obligations of the insurer under his policy as fully as if the same were issued in the name of the Omaha Life Insurance Association of Minneapolis, Minn. Defendant in error ratified the arrangement entered into between these corporations and paid all premiums maturing between May 15, 1895, and December 5, 1898, to the last-named corporation.

On December 5, 1898, said last-named corporation was succeeded by the National Mutual Life Association, a like Minnesota corporation, and by the provisions of a certain contract entered into between the companies the assets of the Omaha of Minneapolis were transferred to the National Mutual and the latter assumed “all the obligations or indebtedness on account of the policies ” of the former, and the Omaha, of Minneapolis) retired from business. Defendant in error ratified this arrangement and paid all premiums maturing thereafter until and including the one due February 5, 1901, to the National Mutual.

On February 21, 1901, the assets and business of the National Mutual were absorbed by plaintiff in error, and thereafter plaintiff in error treated with defendant in error as its member and policy holder, demanded the payment of further premiums, tendered an option other than the one stated in the policy in settlement, declared that the policy would become null and void in a certain contingency, stated on April 23, 1901, that “ the only liability which this company has now under your contract is the liability to pay your death loss should it occur,” all before the original action was commenced, and in the original action set up the defense of •ultra vires. In ratifying each of the assumption agreements defendant in error ceased to be a member of the retiring company in each instance. None of these companies had corporate power to contract to return premiums paid or to create a fund to be applied for that purpose. The policy issued by the original insurer to defendant in error, the obligation of which was assumed by the succeeding companies to and including the National Mutual, stipulated for the declaration of a dividend with options to the insured as stated in the petition.

The obligation of the original insurer under the policy was to pay $3,000 in the event of death or at the election of insured at a certain date to pay in final settlement an amount in cash “ equal to ten full annual premiums as paid by insured.” It is very evident that the insurer cannot •defend against the election and option on the ground of ultra vires and at the same time insist that defendant in error should be held to the " whole life ” clause of the contract. In consideration of his payment of premiums defendant in error under the contract was entitled to one stipulated benefit no less than the other at his election. The insurer ■could not affirm in part and.repudiate in part the terms of the contract and thus confine defendant in error to one benefit when he had stipulated and paid for the right to elect between two benefits. The insurer’s contract was and is void for want of power to make it, and the contracts of the succeeding companies, except plaintiff in error, were and are -each void for the same reason. In as much as the performance that still Temains due consists of the very ultra vires act itself, it is believed that if the insurer were a party here the doctrine of estoppel would not apply. The cases are in conflict upon the question, but without discussion we hold, we believe in accordance with the weight of authority that defendant below was not estopped to make the defense of want of power. 1 Clark & Marshall, Corporations Sec. 214b. Compare 1 Clark & Marshall, Corporations Sec. 214a.

If the contract of insurance is void on the ground of ultra vires and if defendant is not estopped to make the defense, and if the original insurer were that defendant, it is very clear that plaintiff below could recover from the insurer the premiums which it had received upon the contract.

“ The courts while refusing to maintain any action upon the unlawful (ultra vires but not immoral) contract have always striven to do justice between the parties.” Central Transp. Co. v. Car Co. 139 U. S. 24, 60 [11 Sup. Ct. Rep. 478; 35 L. Ed. 55].
“ If the contract is ultra vires and either party disaffirms it on the ground that it is ultra vires, and refuses further execution of it, then, while the other party cannot sue to recover damages or compensation in. respect of the unexecuted portion of the contract, yet the law will afford him remedies for procuring from the other party a restoration of what he has lost under it.” Thompson, Corporations Sec. 6004; Andrews v. Insurance Co. 37 Me. 256, 257; Miller v. Insurance Co. 92 Pa. St. 167.

Plaintiff below never paid any premiums to defendant below. The liability, if any, of defendant must therefore result from the contract whereby the National Mutual was absorbed, amalgamated, merged.in or' consolidated with said defendant and whereby plaintiff was received,, adopted and recognized as a member of defendant company.

In Langhorne v. Railway Co. 91 Va. 369, 374 [22 S. E. Rep. 159 161], it was held that:

“ The surviving corporation, when another or others are merged into it or consolidated with it, is ordinarily deemed the same as each of the corporations which formed it for the purpose of answering for the liabilities of the old corporation, and may be sued under * * * the name of the surviving company for their debts as if no change had been made in the name or in the organization of the original corporations.”

In Louisville, N. A. & C. Ry. Co. v. Boney, 117 Ind. 501 [20 N. E. Rep. 432, 433; 3 L. R. A. 435], it is said:

“ The act of consolidation involves an implied assumption by the new company of all the valid debts and liabilities of the' consolidating companies.”

In Berry v. Railway Co. 52 Kan. 774 [36 Pac. Rep. 724; 39 Am. St. Rep. 381], it is said:

“ The debts of the original companies follow as an incident of the consolidation, and become by implication in the absence of express provision, the obligations of the new company.”

In Day v. Railway Co. 151 Mass. 302, 308 [23 N. E. Rep. 824], it is said:

“ The new corporation is a new person, for the acquisition of new rights, or the making of new contracts, (but) the old corporations shall not be altogether ended, but shall continue under the new name, so far as to preserve all their existing obligations unchanged,”

We hold in line ¡with the$e cases that the liability of plaintiff in error is precisely the same as though it were the National Mutual. The determination of the amount for which the National Mutual would be liable if sued by plaintiff below is the remaining question in the case.

When the original insurer transferred its assets including its good will- to the Omaha of Minneapolis, the former was indebted to plaintiff below in an amount equal to the aggregate of the premiums paid to it by Hare on account of his policy. The solvency of the original insurer at that time must be presumed. The power of the Omaha of Minneapolis to acquire said assets and good will must also be presumed and its power to pay for that which it had the right to purchase cannot be denied.

A part of the purchase price which the purchasing company agreed to pay was the assumption of the claim which Hare then had against the original insurer. Hare consented to the arrangement, and thereby released the original insurer. Hence, at the beginning of its career the Omaha of Minneapolis, by virtue of its contract with its predecessor, became indebted to Hare in an amount equal to the premiums paid to the ■original insurer. The Omaha of Minneapolis, irthile in business increased this indebtedness by receiving further premiums from Hare. At the time of the transfer by the latter of the National Mutual, the succeeding company as part of the purchase price, assumed the indebtedness of its predecessor. That amount would be the aggregate of the premiums paid as we have seen. To this arrangement Hare again assented and released the Omaha of Minneapolis. All the remaining premiums were paid the National Mutual. Unless there are some circumstances in the case that require a different result it would seem clear that the amount of recovery to which, as against the National Mutual, plaintiff below would be entitled would be the aggregate of the premiums paid on the policy to all the companies. But one fact requires notice. At the time of the transfer by the Omaha of Minneapolis, to the National Mutual, of all its assets and good will the record shows that the Omaha had no funds “ of itself ” sufficient to pay its natural death claims alone. It must be assumed that the National Mutual at the time of the transfer to it was solvent.

Whatever the amount of its funds may be the Omaha succeeded in disposing of its business to a solvent purchaser upon a contract that the purchaser would pay all the Omaha’s obligations and indebtedness upon its policies. This may be true because of the value of the good will alone. 'The assumption of Hare’s claim by the National Mutual makes it quite unimportant in the case whether the funds on hand were sufficient to pay Hare or not at the time of the transfer. It follows we think that the National Mutual owes Hare the amount of the premiums paid by him on his policies before December 5, 1898, because the National Mutual in and by a contract which it had the right to make, and upon a consideration moving from the Omaha of Minneapolis, agreed to pay the claim and upon a further consideration moving from Hare, to wit, the release of the Omaha of Minneapolis, by Hare, further agreed to pay Hare. For the business it has received from Hare since December 5, 1898, the National Mutual is liable to him because it received the money upon an invalid contract and the Consideration for the payments by Hare has failed. The National Mutual would be liable to Hare for the full amount of all the premiums paid to all the insurance companies, and such was also the liability to him of the plaintiff in error.

If the contract of insurance was valid and its repudiation by defendant below was wrongful, the right to recover and the amount of recovery would be the same. Insurance Co. v. Tullidge, 39 Ohio St. 240.

It is manifest that the failure of plaintiff below to make further payments of insurance upon an insurance contract which was void from the beginning could in no view result in any forfeiture of his right to recover the premium already paid.

Upon the whole case this court, by a majority of the judges, holds that the judgment of the common pleas is the only judgment which under the law should be rendered in the case.

Judgment accordingly.

Norris, J., concurs.

Day, J., dissents, and for errors in the record, in the admission of evidence and in the charge would reverse the judgment.


source: Caselaw Access Project

author: JELKE, J.

license: Public Domain

text:
    BILLS AND NOTES — PLEADING—EVIDENCE.
    [Hamilton (1st) Circuit Court,
    February 24, 1902.]
    G-iffen, Jelke. and Swing, JJ.
    Augusta J. Bode v. Louis Werner.
    1. Detriment to Promisee oe Note a Sufficient Consideration.
    As detriment or loss to the promisee of a negotiable promissory note is a sufficient consideration to support the promise of the maker, want of consideration moving to the promisor is, alone, insufficient as a defense to an action on the note, as the possible fact of detriment or loss to the promisee is not thereby precluded.
    2. Delivery of Negotiable Instrument Presumed and Need not Be Pleaded.
    Delivery need not be specially pleaded in an action to recover on a negotiable instrument, as it is, as a general rule, presumed from the mere possession of the note; the word “promised” in the petition implies delivery, and, in such event, an answer alleging that defendant did not deliver the note to plaintiff does not set up new affirmative matter calling for a reply.
    i 3. Maker may Make Payment to Holder, When.
    Where a negotiable promissory note is not, at its maturity, in the hands of the payee whose indorsement appears thereon, the maker may proceed upon the assumption that it has been transferred, and make payment to the holder.

      4. Note in Evidence Makes Pbima Facie Case.
    A prima facie case in favor of plaintiff is made out by his offering in evidence a negotiable promissory note, and the burden of proof is then cast upon the defendant; and where the latter offered no evidence, the plaintiff is entitled to a verdict and judgment in his favor.
    Goebel & Bettinger, for plaintiff in error. ■
    W. A. Hicks and G. W. Hengst, for defendant in error.
   JELKE, J.

Louis "Werner, plaintiff below, sued Augusta J. Bode as endorser, by filing the usual short form petition on a promissory note, to which the following answer was made:

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

To this answer no reply was filed.

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

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

On the subject of consideration the answer is insufficient.

“An answer to a suit on a promissory note, averring that thert, was no consideration for it, moving to the promisor, is not sufficient as-a defense, as it does not preclude the possible fact that there was detriment or loss to the promisee, which constitutes a consideration for a '¡promise as well as a benefit to the promisor. Dalrymple v. Wyker, 60 Ohio St. 108 [53 N. E. Rep. 713].

It is likewise insufficient on the subject of delivery.

“Delivery need not be specially averred in the declaration upon a note or bill. Tbe word ‘promised’ or ‘made’ sufficiently implies delivery in pleading. Delivery, is in general, presumed from possession of the bill or note.” Randolph; Com. Pap. Sec. 217.
“If the maker of a negotiable promissory note does not find it in the hands of the payee, when it falls due, he should presume, as the law presumes, that it has been transferred, and pay it when and where he finds it. Poland, J.” Griswold v. Davis, 81 Vt. 390.

Also see last sentence of See. 3171o of the new negotiable instrument code:

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

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

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

Giffen and Swing, JUL, concur.


author: COOK, J.

text:
    DEATH — NEGLIGENCE—COMITY OF LAWS.
    [Mahoning (7th) Circuit Court,
    March Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    Alvida Schell et al. v. Youngstown Iron Sheet & Tube Co.
    Section 6134a Rev. Stat., Construed — Statute oe State of Pennsylvania Will be Enforced in Ohio for Negligently Causing Death to Citizen of that State.
    The courts of this state have jurisdiction in actions to recover damages under the statute of the state of Pennsylvania for negligently causing the death of a person in that state, although such person and his next of kin were all citizens of such state at the time of the injury.
    Error to Mahoning common pleas court.
    Anderson and Murray & Koonce, for plaintiff in error:
    The words “whenever the death of a citizen of this state” in Sec. bl34a Rev. Stat. are merely cumulative to the right existing at the common law for the enforcement of a cause of action by plaintiff in any jurisdiction where the defendant may be found, the effect of said statute "being only declaratory of the right of citizens of this state, wherein the provision was enacted, and does not in any manner affect the rights of citizens of other states from attempting the enforcement of their rights in the forums of the state. Stewart v. Railway Co. 168 U. S. 445 [18 Sup. Ct. Rep. 105; 42 L. Ed. 537] ; Huntington v. Attrill, 146 U. S. 657, 670 [13 Sup. Ct. Rep. 224; 36 L. Ed. 1123] ; Dennick v. Railway Co. 103 U. S. 11 [26 L. Ed. 439] ; Texas & Pac. Ry. Co. v. Cox, 145 IT. S. 593 [12 Sup. Ct. Rep.'905; 36 L. Ed. 829]; Herrick v. Railway Co. 31 Minn. 11 [16 N. W. Rep. 413; 47 Am. Rep. 771] ; Higgins v. Railway ■Co. 155 Mass. 176 [29 N. E. Rep. 534; 31 Am. St. Rep. 544] ; Chicago, St. L. & N. P.'Ry. Co. v. Doyle, 60 Miss. 977; Morris v. Railway Co. 65 Iowa 727 [23 N. W. Rep. 143; 54 Am. Rep. 39] ; Chicago & E. I. Ry. Co. v. Rouse, 178 Ill. 132 [52 N. E. Rep. 951; 44 L. R. A. 410] ; Dicey, Conflict of Laws 667, 669, Par. 1; Walsh v. Railway Co. 160 Mass. 571 [36 N. E. Rep. 584; 39 Am. St. Rep. 514] ; Burns v. Railway Co. 113 Ind. 169 [15 N. E. Rep. 230]; Leonard v. Navigation Co. 84 N. Y. 48; East Tennessee, Y. &.G. Ry. Co. v. Lewis, 89 Tenn. 235 [14 S. W. Rep. 603] ; McLeod v. Railway Co. 58 Yt. 727 [6 Atl. Rep. 648] ; Cofrode v. Gartner, 79 Mich.. 332 [44 N. W. Rep. 632; 7 L. R. A. 511, 514]; Jeffersonville, M. & I. Ry. Co. v. Hendricks, 41 Ind. 48, 70, 71. The cases of Woodard v. .Railway Co. 10 Ohio St. 121; Hover v. Pennsylvania Co. 25 Ohio St, 667, and Wabash By. Co. v. Fox, 64 Ohio St. 133 [59 N. E. Bep. 888; 83'. Am. St. Bep. 739], distinguished.
    , The test whether an action for loss occasioned by a negligent killing can be maintained in another jurisdiction than that where the accident occurred, depends upon whether the action is contrary to the public policy of the state whose jurisdiction is invoked, or inconsistent with its law; if not, the action lies. 1 Joyce, Damages 591; Law v. Bailway Co. 91 Fed. Bep. 817; Yan Doren v. Bailway Co. 93 Fed. Bep., 260 [35 C« C. A 282]; Davidow v. Bailway Co. 85 Fed. Bep. 943; Nelson v. Bailway Co. 88 Ya. 971 [14 S. E. Bep. 838; 15 L. B. A. 583].
    The right given by the statute of Pennsylvania to bring an action for wrongful death can be enforced in this state; such right is not only not against the public policy of this state, but in exact accordance with it, as shown by Sec. 6134 Bev. Stat. It is by See. 6134, and not Sec. 6134a Bev. Stat. that the policy of our state with reference to the general right to maintain ah action for wrongful death is announced.
    When a statute purports to modify or abrogate a well-established rule of common law, it should not, if reasonable effect can be otherwise given to the words used, be extended beyond their plain import. There should be a strict construction of statutes changing the common law. Felix v. Griffiths, 56 Ohio St. 39 [45 N. E. Bep. 1092]; Fitzgerald v. Quann, 109 N. Y. 441 [17 N. E. Bep. 354] ; Shaw v. Bank, 101 U. S. 557 [25 L. Ed. 892].
    A construction of Sec. 6134a Bev. Stat. which limits the right given thereby to citizens of Ohio only, and in barring all other persons from enforcing rights arising under similar circumstances when they come into the courts of Ohio, would be in contravention of Sec. 16, Art. 1 of the Ohio constitution and Sec. 2, Art. 4 of the U. S. constitution. Den-nick v. Bailway Co. 103 U. S. 11, 17 [26 L. Ed. 439]; Story, Conflict ■of Laws Secs. 29, 33; Ward v. Maryland, 79 U. S. (12 Wall.) 418, 430 [20 L. Ed. 449] ; Corfield v. Coryell, 4 Wash. C. C. 371, 380 [6 Fed. Cas, 546] ; Cole v. Cunningham, 133 U. S. 107,113,117 [10 Sup. Ct. Bep. 169; 33 L. Ed. 538] ; Blake v. McClung, 172 Ü. S. 239 252 [19 Sup. Ct. Bep 165; 43 L. Ed. 432] ; Paul v. Virginia, 75 U. S. (8 Wall.) 168, 180 [19 L, Ed. 357]; Slaughterhouse cases, 83 U. S. (16 Wall.) 36, 77 [21 L. Ed 394] ; Maynard v. Provident Assn. 92 Fed. Bep. 435 [34 C. C. A. 438]; but such a construction need not and should not be given it, as no construction should be given a statute which will bring it in conflict with the constitution, if any other construction can be given it.
    Hiñe & Kennedy, for defendants in error.
   COOK, J.

The action below was by the widow and children of Daniel Schell for negligently causing the death of the husband and father of plaintiffs in error. The petition averred that Schell at the time of his death was a resident of the state of Pennsylvania as were also the wife and children ; that the widow and children are still such residents, and that the negligence which caused his death took place in the state of Pennsylvania. If, therefore, plaintiffs have a cause of action it must be under a statute of Pennsylvania.

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

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

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

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

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

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

For the purpose of ascertaining the intention of the general assembly in enacting this statute and what is its proper construction, it.is important to ascertain what was the law upon this subject previous to its passage. It is insisted upon the part of demurrant that, without this provision no action could be maintained, and that its purpose is only to give such right of action when the deceased was a citizen of this state. It must be conceded that we have no authoritative enunciation of our Supreme Court upon this question. In the case of Woodward v. Railway Co. 10 Ohio St. 121, the only question decided was that an action could not be maintained for negligently causing death in the state of Illinois by an administrator appointed in this state, as such administrator would be a trustee subject to the laws of this state and must distribute the fund in accordance with our law, which was entirely different from the manner prescribed by the statute of Illinois, but in the opinion it is said, page 124:

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

In the ease of Hover v. Pennsylvania Co. 25 Ohio St. 667, it was determined that an action could not be prosecuted in this state under our statute for negligently causing death in another state, and that was all that was determined in that case. The case of Brooks v. Railway Co. 53 Ohio St. 655 [44 N. E. Rep. 1131], and unreported we take it, is to the same effect, as it was decided on the authority of the last two cases. In the case of Wabash Ry. Co. v. Fox, 64 Ohio St. 133 [59 N. E. Rep. 888; 83 Am. St. Rep. 739], Sec. 6134a Rev. Stat. as it existed previous to the amendment of 1902, was- under consideration, but all the court decided was that, our courts would not entertain an action under the law of the state of Indiana for the reason that that state did not enforce our statute in the manner required by Sec. 6134a Rev. Stat.

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

"Why should not such action be maintained in our courts? Nearly if not all the estates of the union have statutory provisions substantially the same as Lord Campbell’s act. Buswell, Pers. Inj. Sec. 22.

These statutes are not penal in their nature but remedial; they simply preserve to the next of kin, ordinarily the decedent’s family, that; to which the decedent would have been entitled had death not ensued-The only reason that the action could not tye maintained at common law" was one of the old fictions with which it abounds that such a right of action died with the party. In Stewart v. Railway Co. 168 U. S. 445, 448 [18 Sup. Ct. Rep. 105; 42 L. Ed. 537], Mr. justice Brewer, speaking of this character of action, says:

“Notwithstanding the.ability with which the arguments in support of this conclusion are presented in the opinion of the court of appeals, we are unable to concur therein. A negligent act causing death is in itself a. tort, and, were it not for the rule founded on the maxim actio per-sonalis moritur cum persona, damages therefor could have been recovered in an action at common law. The case differs in this important feature from those in which a penalty is imposed for an act in itself not wrongful, in which a purely statutory delict is created. The purpose of the several statutes passed in the states, in more or less conformity to what is known as Lord Campbell’s act, is to provide the means for recovering the damages caused by that which is essentially and in its nature a tort. Such statutes are not penal, but remedial for the benefit of the persons injured by the death. An action to recover damages for a tort is not local but transitory, -and can as a general rule be maintained wherever the wrongdoer can be found. Denniek v. Railway Co. 103 U. S. 11 [26 L. Ed. 439]. It may well be that where a purely statutory right is created the special remedy provided by the statute for the enforcement of that right must be pursued, but where the statute simply takes away a common law obstacle to a recovery for an admitted tort, it would seem not -unreasonable to hold' that an action for that tort cant be maintained in any state in which that common law obstacle has' been removed. At least it has been held in this court in repeated cases that an action for such tort can be maintained ‘where the statute of the state in which the cause of action arose is not in substance inconsistent with the statutes or' public policy of the state in which the right of action is sought to be enforced.’ Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 605 [36 L. Ed. 829] ; see also Dennick v. Railway Co. 103 U. S. 11 [26 L. Ed. 439]; Huntington v. Attrill, 146 U. S. 657 [36 L. Ed. 1123] ; Northern Pacific Ry. Co. v. Babcock, 154 U. S. 190 [14 Sup. Ct. Rep. 978; 38 L. Ed. 958].”

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

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

In support of this theory we refer to but a few cases. In Higgins v. Railway Co. 155 Mass. 176, 180 [29 N. E. Rep. 534, 535; 31 Am. St. Rep. 544], it is said:

“Assuming that the cause of action is one not existing at the common law, but created by the statute of another state, we have seen that it is transitory, and that it survives and passes from the deceased to his administrator. When an action is brought upon .it here, the plaintiff is not met by any difficulty upon these points. Whether our courts will entertain it depends upon the general principles which are to be applied in determining the question whether actions founded upon the laws of other states shall be heard here. They require that, in cases of other than penal actions, the foreign law, if not contrary to our public policy or to abstract justice or pure morals, or calculated to injure the state pr its citizens, shall be recognized and enforced here, if we have jurisdiction of all necessary parties, and if we see that, consistently with our own forms of procedure and law of trials, we can do substantial justice between the parties. If the foreign law is a penal statute, or if it offends our own policy, or is repugnant to justice or to good morals, or is calculated to injure this state or its citizens; of if we have not jurisdiction of parties who must be brought in to enable us to give a satisfactory remedy; or if, under our forms of procedure, an action bere cannot give a substantial remedy, we are at liberty to decline jurisdiction. Blanchard v. Russell, 13 Mass. 1, 6; Prentiss v. Savage, 13 Mass. 20, 24; Ingraham v. Geyer, 13 Mass. 146; Tappan v. Poor, 15 Mass. 419; Zipcey v. Thompson, 67 Mass. (1 Gray) 243, 245; Erickson v. Nesmith, 81 Mass. (15 Gray) 221, and 86 Mass. (4 Allen) 233, 236; Halsey v. McLean, 94 Mass. (12 Allen) 438, 443; New Haven Horse Nail Co. v. Spring Co. 142 Mass. 349, 353 [7 N. E. Rep. 773] ; Bank of North America v. Rindge, 154 Mass. 203 [27 N. E. Rep. 1015].”

In Wooden v. Railway Co. 126 N. Y. 10, 14 [26 N. E. Rep. 1050; 13 L. R. A. 458; 22 Am. St. Rep. 803], Finch, J., says:

“Certain propositions essential to the inquiry before us have been explicitly determined in McDonald v. Mallory, 77 N. Y. 546, and need no other citation for their support. That case held that the liability of a person for his acts, whether wrongful or negligent, depends in general upon the law of the place in which the acts were committed; that actions for injuries to the person in another state are sustained here without. proof of the lex loci, because they are permitted by the common law which is presumed to exist in the foreign state; that such presumption does not arise where the right of action depends upon a statute which confers it; and that in such case the action can only be maintained here by proof that the statutes of the state in which the injury occurred give the right of action, and are similar to our own. Upon the question of similarity we have also held that the two' statutes need not be identical in their terms, or precisely alike, but it is enough' if they are of similar import and character, founded upon the same principle, and possessing the same general attributes. Leonard v. Navigation Co. 84 N. Y. 48, 53. It is quite evident that the two statues are of similar import. They are founded upon the same principle, are aimed at the same evil, construct the same sort or kind of action, and give it for the same class of' individuals. In both the utter failure of redress at common law where the injury ended in death was the injustice for which a remedy was enacted;. and in both the new action was given for the benefit of those who had suffered an injury as the consequence of the wrong. This fundamental agreement in the main and substantial characteristics of the two statutes is not affected by the differences of detail which the demurrer points out.”

In Dennick v. Railway Co. 103, U. S. 11, 17, 18 [26 L. Ed. 439] Mr. Justice Miller says:

“It is difficult to understand how the nature of the remedy or the jurisdiction of the courts to enforce it' is in any manner dependent on. the question whether if is a statutory right or a common-law right.'
“Wherever, by either the common law or the statute.law of a state,, a right .of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which h^s jurisdiction of such matters and can obtain jurisdiction of the parties.
‘ ‘ The action in the present ease. is in the nature of trespass to the' person, always held to be transitory, and the venue immaterial, and the local court in New York, and the circuit court of the United States for the northern district, were competent to try such a case when the parties' were properly before it. See Mostyn v. Fabrigas, 1 Cowp. 161; Rafael v. Verelst, 2 Wm. Black. 983, 1055; McKenna v. Fisk, 42 U. S. (1 How.) 241. We do not see how the fact that it was a statutory right can vary the principle. If the defendant was legally liable in New Jersey he could not escape that liability by going to New York. If the liability to pay money was fixed by the law of the state where the transaction Occurred, is it to be said it can be enforced nowhere else because it depended upon statute law and not upon common law? It would be a very dangerous doctrine to establish, and in all eases where the several states have substituted the statute for the common law,' the liability can be enforced in no other state but that where the statute was enacted and the transaction occurred. The common law never prevailed in Louisiana, and the rights and remedies of her citizens depend upon her civil code. Can these rights be enforced or the wrongs of her citizens be redressed in/no other state of the Union? The contrary has been held in many cases. See Van Riper, Ex parte, 20 Wend. (N. Y.) 614; Lowry v. Inman, 46 N. Y. 119; Pickering v. Fisk, 6 Vt. 102; Nashville & C. Ry. Co. v. Sprayberry, 67 Tenn. (8 Bax.) 341; Great Western Ry. Co. v. Miller, 19 Mich. 305. ’ ’ Stewart v. Railway Co. supra.

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

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

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

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

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

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

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

There are many reasons why we feel constrained to place this construction upon Sec. 6134a Rev. Stat. as amended. The section does not provide directly, but, if at all, only by implication that in no other case but in that of the death of a citizen of our own state can such action be .maintained, and it is a well-settled rule of law, that:

“In giving construction to a provision of a statute, or a contract, which attempts to abrogate, or modify, a well-established rule of the eom-mon law, the scope of the provision should not be extended beyond the plain import of the words used if reasonable effect can otherwise be given to it. ’ ’ Felix v. Griffiths, 56 Ohio St. 39 [45 N. E. Rep. 1092].

If this rule would apply to a provision of the common law, much more would it apply in case of this character where the right is so generally and specifically recognized in the different states.

Furthermore such a construction would make the section directly inimical to Sec. 2, Art. 4 of the U. S. constitution which provides that, “The citizens of each state shall' be entitled to all the privileges and immunities of citizens in the several states.” Just what the words “privileges and immunities” signify it is difficult to tell under all circumstances, but their significance and import must be determined under the circumstances of each particular case; at the same time there are well-established rules which are recognized and given effect in all cases and among these, it is well settled, is the right to the usual remedies for the collection of debts and the enforcement of other personal rights in the courts of all the states. Cooley, Const. Lim. 490, and cases cited in the notes.

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

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

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

There is another rule of law that should not be lost sight of and that is a statute will not be held to be unconstitutional except the text of the statute absolutely demands it, “And where one of two constructions renders a statute constitutional, and the other renders it unconstitutional, the former, if reasonable, should be adopted.” Bobilya v. Priddy, 68 Ohio St. 373, 387.

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

These distinctions are not important. Dennick v. Railway Co. Stewart v. Railway Co.; Wooden v. Railway Co.; Higgins v. Railway Co., supra.

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

Laubie and -Burrows, JJ., concur.


author: PARKER, J.

text:
    FOOD LAWS.
    [Lucas (6th) Circuit Court,
    January 25, 1904.]
    Parker, Hull and Haynes, JJ.
    Albert S. Guilder v. State of Ohio.
    1. Police' Regulations not Interpreted as are Revenue Laws.
    Police regulations are not to be interpreted as are revenue laws, wbicb admit of favored classes, but must be applied with the purpose of preventing all persons from doing the thing prohibited.
    45. Word “Dealer” as Used in Sec. 4200-11 Rev. Stat. Includes One Who Sells Milk From His Own Cows.
    The word “dealer,” therefore, as used in Sec. 4200-11 Rev. Stat., relating to the sale of skimmed milk, includes one who sells milk obtained from his own cows, as well as one who buys and sells milk.
    Error to Lucas common pleas court.
    B. F. Ritchie, for plaintiff in error:
    Defendant was not a dealer in milk witbin the meaning of Sec. 4200-11 Rev. Stat. 5 Am. & Eng. Enc. Law (1 ed.) 122, 123; Norris y. Commonwealth, 27 Pa. St. 494; Commonwealth v. Campbell, 33 Pa. St. 380, 385; Barton v. Morris, 10 Phila. (Pa.) 360; Herbert, Ex parte, 2 Yes. & Bea. 399; Overall v. Bezeau, 37 Mich. 506.
    The word “dealer” having acquired fixed legal meaning, the legal presumption is, “that the legislature meant to use them in this legal •sense. This rule is undoubted.” Turney v. Yeoman, 14 Ohio 207, 218; Grogan v. Garrison, 27 Ohio St. 50, 63; Bulkley v. Stephens, 29 Ohio St. «20, 622.
    W. G. Ullery, prosecuting attorney, for defendant in error.
   PARKER, J.

This is proceeding in error brought to obtain a. reversal of a judgment of conviction of the plaintiff in error in the police court of the city, because of the violation of a certain provision of the dairy and food laws of the state. The judgment of the police court was; afterwards .affirmed by the court of common pleas. The plaintiff in error seeks to reverse both judgments.

The section under which the plaintiff in error was prosecuted is ‘Sec. 42Ó0-11 Rev. Stat., being Sec. 3 of an act found in 86 O. L. 229. It reads: ,

“No dealer in milk, and no servant or agent of such dealer, shall sell, exchange, or deliver, or have in his custody or possession, with intent to sell, exchange or deliver, milk from which the cream or part thereof has been removed, unless in a conspicuous place, above the center, upon the outside of every vessel, can or package, from which or in which such milk is sold, the words ‘skimmed milk’ are distinctly marked in uncon-densed gothic letters not less than one inch in length. Whoever violates the provisions of this section shall be punished by the penalties provided in Sec. 1.”

The penalty provided in Sec. 1 is, for the first offense a fine of not less than $50 nor more than $200. This appears to have been the first offense charged against the plaintiff in error.

It appeared upon the trial of the case in the police court that the' plaintiff in error was the owner of a dairy, and that all the milk which he had was the product of his own dairy; that no part of the milk which he was engaged in selling had been obtained, by purchase or otherwise,, from others, and it was there contended on behalf of Guilder, and is contended here, that he does not come within the class of persons who are prohibited from carrying milk for sale unless they have the packages marked as prescribed by this section, that is to say, that he was not a “dealer” in milk, because he was not engaged in buying and selling milk — he was selling the product of his own dairy. Counsel for plaintiff in error has furnished us with a brief in which he cites a mfmber of cases where the word “dealer” is defined, and in all those cases the “dealer” is described and defined as one who makes a business of buying and selling, as a middle man between the producer and consumer of the article. We are cited 5 Am. & Eng. Enc. Law (1 ed.) 122,123, where in the text it is said, under the heading of “deal” and ‘ ‘ dealer, ’ ’ that it is “ to trade; to buy and sell for the purpose of gain; to traffic; to have to do with.” “A dealer is therefore one who makes a business of buying and selling; he is the middle man between the producer and consumer of a commodity.” A large number-of cases are there cited in support of this definition. Most of them are cited in the brief of counsel for the plaintiff in error. Among the eases cited, are Norris v. Commonwealth, 27 Pa. St. 494; Commonwealth v. Campbell, 33 Pa. St. 380, 385; and in the case of Barton v. Morris, 10 Phila. (Pa.) 360, it is said:

“A farmer who sells the product of his farm, and occasionally that of his neighbors, at a market stand in a city, is not a dealer. He does not buy, but only sells.” '

Herbert, Ex Parte, 2 Ves. & Bea. 399, is also cited, and Overall v. Bezeau, 37 Mich. 506.

It is urged by counsel for plaintiff in error that the word “dealer” is, therefore, a word that has a fixed legal meaning, and that it must be presumed that the legislature, in the enactment of’this statute, used the word in the sense defined in these cases, and that since the plaintiff in error does not come within the class described in the statute, the conviction was wrong and should be set aside. Attention is called to the fact that in the statutes generally, respecting the adulteration of foods, and in other sections of the same statute, the word used to designate the persons who shall be amenable to the penalty and who are subject to the prohibition,, is general; “whoever” does this or that, not the “person” who does this or that is prohibited, while in this particular section there is a class described, to wit, “dealers.”

On behalf of the prosecution we are not furnished with any authorities, and, indeed, no one has appeared before us to present the case; and, not having made a very thorough search for authorities ourselves, we are unable to say what may or may not be produced in the way of authority in opposition to the cases cited. The cases cited, however, in the brief of counsel for the plaintiff in error, and all that we have examined, are cases where the revenue laws of the state were under consideration — laws taxing dealers, or laws requiring them to procure a license before trafficking in certain products and the holdings are in harmony with the general governmental policy (apparently a well-settled policy, manifested in many statutes as well as in the decisions of courts) to exempt farmers and other producers selling their own products, or the raw material, and sometimes even exempting a manufacturer selling his products where the manufacture is from the raw material, and especially that raised or produced by the manufacturer. A great many examples of this policy may be found in the statutes of our own state. I call attention to Sec. 1653 (1536-894, 4 ed.) Rev. Stat. This section confers certain powers upon hamlets, and paragraph fourteen provides that they shall have power to regulate peddlers. Section 2672-19 Rev. Stat. provides for the licensing of peddlers in certain cities (I believe the section applies to Cincinnati) and contains this provision:

“Provided that,any person selling agricultural produce of his own raising shall not be liable for license for selling, hawking or peddling the same in any mode or manner in the markets, public streets or alleys of said city.”

Section 2669 Rev. Stat. which grants power to councils of municipalities generally to grant licenses, contains this provision:

“ * * * but nothing in this section shall be construed to authorize any municipal corporation to require of the owner of any product of his own raising, or the manufacturer of any article manufactured by him, license to vend or sell in any way, by himself or agent, any such article or product. ”,

Section 4401 Rev. Stat., which is in the chapter respecting dealers and peddlers and prescribing what shall be done to grant licenses to them, provides for the licenses and for penalties for selling without license, and also provides that:

“If any person vend or sell in this state, as a peddler or a traveling merchant, any goods, wares, or merchandise, except such goods, wares, and merchandise as are manufactured within this state by himself or employer, without having first obtained a peddler’s license so to do, he shall forfeit and pay” * * *.

Another instance of this is found in the Dow law, beginning with Sec. 4364-9 Rey. Stat., and running through and including Sec. 4364-23 Rev. Stat. This law lays a tax on the business of trafficking in intoxicating liquors, but defines the phrase “trafficking in intoxicating liquor” to mean the “buying or procuring and selling,” and to not include the manufacture of such intoxicating liquors from the raw material and the sale thereof at the manufactory by the, manufacturer of the same in quantities of one gallon or more at any one time.” It is somewhat significant that the legislature deemed it necessary to limit the word “trafficking” so that it should not include certain sales by the manufacturer, but by the plainest implication has made it include even sales by manufacturers unless the liquor shall be manufactured from a certain class of material and the sales shall be made at a certain place and sold in certain quantities.

In the act respecting skimmed milk, involved' here, the noun “dealer” of which the cognate verb is “deal” and the participle form is “dealing” (a word set down by lexicographers as synonymous with “trafficking” when applied to transactions like that under consideration) , there is no such limitation of its scope. In other words in the use of the synonym “trafficking” the legislature deemed it necessary to expressly exclude what it seems to have thought it would otherwise cover, to wit, certain dealing or trafficking that' would not have been included at all, if the theory of counsel for plaintiff in error here is correct, i. e., it uses the word “trafficking” as including sales by one who does not buy, unless such sales áre of goods manufactured from raw materials and are made at a certain place and in certain quantities.

But, in looking to the mischief to be remedied by this statute governing the selling of skimmed milk, the evident ^ purpose was to prevent frauds upon purchasers and consumers of milk — a staple article of diet, a food that is in universal use, and in respect' to which frauds by adulteration and by dilution or subtraction, are very easily practiced and are insiduous and oftentimes dangerous in their results; and bearing in mind that many, if not most persons who make a business of selling milk sell from their own dairies — obtain their supplies from the milk of their own cows — we cannot believe that it was the purpose of the legislature to permit the sale of skimmed milk with impunity by this class while imposing a heavy penalty for the same act upon those who might buy their milk for sale. The fraud is as flagrant and the mischief as great in the one ease as in the other. The moral turpitude is as great in the one case as in the other. We can think of no valid reason for exempting from the prohibition and penalties of the act in one case and including the' other, and therefore we cannot suppose that the legislature intended to make such a distinction. In the cases cited (and the only cases we have examined) no such police regulation, designed to save the health and lives of people and to prevent the perpetration of such frauds, was under consideration, but quite a different class of laws, where, as I have said, the purpose seemed to have been to prefer and favor the producer — to not bring him within the purview of acts imposing penalties for making sales of pure articles. In other words, the purpose of the act was to raise a revenue, and the policy of the law seems to have been not to require the contribution of revenue from those who were selling their own products or the raw material.

We therefore hold that the word “dealer” in Sec. 4200-11 Rev. Stat. includes one who sells milk obtained from his own cows as well as one who buys and sells milk, and therefore the judgments of the lower courts will be affirmed.

Hull and Haynes, JJ., concur.