author: Shields, J.

text:
    WOMAN INJURED BY PREMATURE STARTING OF CAR FROM WHICH SHE WAS ALIGHTING.
    Court of Appeals tor Stark County.
    Northern Ohio Traction & Light Co. v. Margaret Schrock.
    Decided, February Term, 1917.
    ■ Negligence—Duty of Conductor When Passengers Are Leaving Car— Circumstances Warranting Damages to Passenger Injured While Alighting—Charge of Court.

    1. The conductor of an electric car, discharging passengers at a regular stopping place, is bound to observe whether passengers alighting therefrom are safely discharged before putting the car in motion again.

      ¿. Where a woman was injured by being thrown from the steps of fhe car from which she was alighting, ground for a verdict in her favol is afforded by testimony to the effect that she had twice notified .the conductor of her destination, which was a regular stopping place, and the stop was called by him and the car came to a standstill at that place, but was started again as 'she was descending the steps.
    á. A special instruction which states specifically the duty which rests on a passenger to use ordinary care to protect himself from injury satisfies the requirements of the law, notwithstanding there was a failure to cover that ground in the general charge, i. A jury having determined the weight of the evidence and credibility of the witnesses in a personal injury case, the verdict will not be disturbed by a reviewing court where the plaintiff appears to have given a natural and reasonable narration of the events which lead to the accident.

      Welty & Burt, for plaintiff in error.

      Webber & Turner, contra..
   Shields, J.

This action was brought in the court of common pleas by-Margaret Schrock to recover damages from the Northern Ohio Traction & Light Co. for injuries claimed to have been sustained by her on December 27, 1915, through the alleged carelessness and negligence of said company in the operation of one of its local interurban passenger ears on which she had taken passage in the city of Canton at -the public square in said city to ride and to be discharged from said car at what is known as "Wendell Place'in said city, a regular stopping place, and of which she notified the conductor at the time of boarding said car, and again notified him before said car reached said Wendell Place, in this: that as she was in the act of alighting from said car at said Wendell Place after said car had stopped, and while exercising due care, said company through its agents’ and servants.’ carelessness and negligence caused said car to be started forward suddenly whereby she was thrown violently from the steps of the rear platform of said car to the brick-paved street at said place, thereby causing her permanent injuries, to her damage in the sum of $10,000.

The defendant company answered said petition, first, denying generally the negligence charged; secondly, that whatever injuries the plaintiff may have received were directly the resixlt of her own carelessness and negligence, in this, that the plaintiff carelessly and negligently and without exercising ordinary care alighted from said car while the same was in motion, and was further negligent in stepping and alighting from said ear backwardly, which careless and negligent conduct caused or directly contributed to her injuries.

A reply was filed by the plaintiff denying the negligence and contributory negligence charged.

The plaintiff recovered a verdict and judgment against said company for $2,250.

In the petition in error filed in this court for the reversal of said judgment are many grounds of error alleged, but we will notice only such as were brought to the attention of said court in argument and which include the principal questions saved upon the record.

. It was argued that the verdict of the jury in this case is against the manifest weight of the evidence. It will be conceded that if a reviewing court was clothed with the prerogative of a jury in passing upon the facts as they appear of record here, where the court has not the opportunity of seeing or hearing the witnesses as they testified upon the witness stand, and where the judgment of the court is based alone upon what the typewritten record contains, there might be some hesitancy in reaching a conclusion that the jury had done full justice to such evidence, under the instructions given by the trial court. In thus speaking we have special reference to the number of witnesses testifying to what they observed immediately before the defendant in error received her- injuries. But, as is well known, the number of witnesses to a fact, or to a given state of facts, does not necessarily control the action of juries or determine the rights of parties. Juries are not only the judges of the credibility of witnesses but of the weight to be given to the evidence as well. Applying this rule of law, how does the case stand ? The defendant in error here testifies that when she boarded the ear in question she notified the conductor that she desired to get off at Wendell Place; that when the conductor took her ticket she again notified him that she desired to get off at said place; that just before said car reached said place the conductor announced Wendell Place when she arose from her seat in said ear and walked back toward the rear door of said car and before reaching said door said ear stopped; that she continued her way out of said car on the rear platform to get off said car and taking hold of the hand-rail on the right, she attempted to descend the steps of said car -and while in the act of stepping on the second and last- step, said car suddenly started and threw her violently off said car and onto the hard brick-paved street, whereby she sustained severe if not permanent injuries. That she boarded said car, that she told the conductor where she desired to get off said car, that she rose in her seat and walked toward the rear door of said car upon the announcement made by the conductor that Wendell Place was about to be reached, that said car did stop at Wendell Place and that she attempted to alight from said car ■ at that place by descending the steps thereof and was seriously injured seems to be uncontradieted, the only question in controversy being' as to whether or not she descended, or attempted to descend, said car ■steps and alight from the car after the same started and when the same was in motion. As stated, she testified that the car was at a stand-still when she attempted to alight, while several witnesses for the defendant below testified otherwise. Before argument, the following written requests were submitted to the trial court to give in charge to the jury the following special instructions which were so given:

“If you find from the evidence that the sole cause of plaintiff receiving her injuries was her stepping from the car while in motion, if you so find, then I will say to you that this verdict should be for the defendant.

“If you find -from the evidence that the plaintiff and defendant were both negligent and the joint negligence of both directly caused plaintiff’s injuries, then the plaintiff can .not recover and this verdict should be for the defendant.

“Plaintiff can not recover herein if she was negligent in alighting from said car while the same was in motion, if you so find, and such negligence was the direct and approximate cause of her injuries.”

Under these instructions, with the right resting in the jury to pass upon the disputed facts of the case under .the evidence of witnesses testifying before them, was not the determination of such facts a finality? We are aware that the action of a jury may be clearly against the weight of the evidence as to require that such action be set aside, but it is always proper to inquire into the reasonableness of the history of the facts in question •and this should not be lost sight of in the final analysis of t'ne case on review where such error is alleged as a ground for reversal. While the plaintiff appears to háve given a natural and reasonable narration of the facts of this occurrence, and while we. in nowise wish to be understood as discrediting the testimony of other witnesses testifying in the case, we think the solution of the facts in the case properly rested with the jury. Sharing this view, the contention of the plaintiff in error under this specification of error can not be upheld.

It was also argued that the trial court erred in its charge •to the jury-and that because of such alleged error the verdict and judgment in this ease should be set aside. On the degree of «are due a passenger when aboard and riding on one of the defendant company’s cars, there seems to be no dispute between counsel- for the respective parties hereto, but the controversy seems to arise over the relative rights of such passenger and carrier in the manner such passenger may be let off and discharged from such car at one of the regular stops along the line of the carrier. 'This question has already been before and passed upon by the courts of this state. Wilson v. Railway, 9 O. L. R., 594; affirmed without opinion, Wilson v. Railway, 79 Ohio St., 435; Ohio Electric Ry. v. Vaughn, 24 C.C.(N.S.), 298; Stark Electric Ry. v. Fording, not reported.

Application was made in each of the last' two cases for an order requiring the court of appeals to certify, both of which were overruled by the Supreme Court. Again, the same doctrine enunciated in said case is laid down in Thompson, Negligence, Section 3520:

“The high degree of care which the law puts upon the carriers of passengers is not fulfilled in the ease of a street railway carrier, unless its servants before putting the car in motion see and know that all passengers in the act of alighting have succeeded in doing so in safety, and that no passenger is in such a situation as would be put in peril by the starting ear.

“It is the duty of the conductor before putting a car in motion to see and know that no passenger is alighting or otherwise in a position which would be rendered perilous by starting the car.

“It is not enough that a reasonable time was given to allow passengers to alight; the carrier has no right to put a vehicle in motion and imperil life and limb, although they may have taken an unreasonable time.”

As was said in the Vaughn case, supra -.

“The view we entertain of the obligation of the defendant company, under the circumstances detailed in the testimony in the case before us, is that in discharging passengers from cars at regular stopping places, they should be allowed not only a reasonable time to alight therefrom, but the duty rests upon the conductor or other employee having charge of such cars to look to it that such passengers are safely discharged before starting the car in motion again, and if such passengers are in the act of -alighting and are exposed to danger, such duty becomes more apparent. ’ ’

Applying the rule laid down to the case at bar, does the evidence for the plaintiff in error as given on the trial meet the requirements of this rule ? Conceding that which is claimed for the evidence on behalf of the plaintiff in error, and without here stopping to rehearse it, we think that it fails to show that the conductor and motorman in charge of thé car in question, on the day and at the place named, exercised such a degree of care toward the defendant in error at the time she started to leave said car and alight therefrom as the law as hereinbefore indicated requires.

But aside from this, the plaintiff in error claims that the trial court erred in charging the jury, especially in that part of said charge wherein said court undertakes “to summarize,” as the same appears on page 502 of the record. If this was the only instruction as applied to the conduct of defendant in error when alighting or attemping to alight from said car, we would be disposed to agree with the contention of counsel, but by referring to page 500 of the record we find that said court did specially instruct the jury as to the degree of care to be exercised by the defendant in error when alighting or attempting to alight from said car in the language following:

“Plaintiff was under legal obligation to use ordinary care to preserve herself from bodily harm -and injury while a passenger on the defendant’s car and while alighting therefrom; if she was negligent in the performance of this duty and if such negligence of hers either directly and proximately of itself caused her fall and injuries, or in conjunction with defendant’s negligence, as hereafter explained, helped or contributed, directly and proximately, in causing her fall and injuries, then plaintiff is not entitled to recover and your verdict should be for defendant.”

True, as counsel contend, said court omitted to call the attention of the jury to the degree of care to be exercised by the defendant in error when she alighted or attempted to alight from said ear in the “summary” referred to, but said charge to the jury is to be considered as a whole. As ivas held in the case of Hollenden Hotel Co. v. Jackson, 22 C.C.(N.S.), 485, afterward affirmed by the Supreme Court without opinion:

“A charge to a jury is to be construed as a whole, and if, construing the whole charge, the law of the ease appear to have been correctly given to the jury, and in a way that will reasonably enable them to understand the rules of law which they are to apply to the evidence before them, the charge will not be held erroneous simply because every condition to a recovery or a deferse is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead.” See also Cincinnati Traction Co. v. Dannenfelser, 20 C.C.(N.S.), 553.

As already stated, while the part of said charge referred to by counsel for plaintiff in error might be subject to criticism when taken alone, the whole charge must be read together and when so considered said charge appears to contain a fair and correct statement of the law as applied to the facts of the case. The court therefore fails to find any error in said charge prejudicial to the plaintiff in error, or in giving to the jury certain special instructions in jhe several written requests made on behalf of the plaintiff below before argument, or in the refusal to give certain special instructions requested in writing to be given to the jury by the court on behalf of the defendant below before argument.

Other errors are alleged in said petition in error, all of which we have examined and on such examination we find no such error in the record prejudicial to the rights of the plaintiff in error as to require a reversal of the judgment below, and it therefore follows that the judgment of the court of common pleas will be affirmed and said cause will be remanded for execution.

Powell, J., and Houck, J., concur.


source: Caselaw Access Project

author: Sayre, J.

license: Public Domain

text:
    NO PRESUMPTION AS TO PARENTAGE IN THIS CASE.
    Court of Appeals for Pike County.
    William M. Vulgamore et al v. The Unknown Heirs of Solomon M. Vulgamore et al.
    Decided, June 7, 1916.

      Parent and Child—No Presumption as to Parentage, When—Partition ■—Descent of Property.

    A child, begotten while the mother was the wife of F. and when there was the possibility of access to her by him, was born seventeen days after the mother was married to V. and was recognized by V. as his offspring. Meld: No presumption could arise as to which was the father of the child.
    This action was brought by parties who are of the blood of Jesse M. Vulgamore, the ancestor, to partition about one hundred and sixty-three acres of land in Pike county, the same having been inherited by Jesse M. as his share of his father’s estate. By the last will and testament of Jesse M. Vulgamore he gave his widow one-third of his real estate during her life and at her death devised and bequeathed it, together with all the balance of his property, to “my beloved daughter, Tevany Frances W. Vulgamore,” except an unimportant legacy which need not be referred to. Terrena, as she was called, married Judge W. D. James in 1883, and died in 1898 seized of the one hundred and sixty-three acres without issue and intestate. After the death of 'Terrena, Judge James married Louisa F. Adams, and to them were born two children, Charlotte and David James, who are now minors and claim the land through descent from Judge James, who died October 12, 1913. Terrena’s mother was Evaline Shonwiler. She was married three times: first, she married Adams, by whom she had children; second, she married Jacob Farmer in 1854. She was divorced from him November 10, 1857, and married Jesse M. Vulgamore December 24, 1857, forty-four days after her divorce, and gave birth to Terrena January 10, 1858, seventeen days after she was married to Jesse M. Yulgamore.
    Evaline Farmer filed an affidavit in her divorce suit in which she says that:
    “The residence of the said Jacob Farmer is totally unknown to her; that he removed from this state on or about the 4th day of June, A. D. 1854, since which time petitioner has not heard of or from him; that she has used every effort to learn the residence of the said Jacob Farmer and that the same could not with reasonable diligence be ascertained by her.”

      David Davis and Franh W. Moulton, for appellants.

      John G. MLilner and Levi B. Moore, contra. •
   Sayre, J.

It is claimed on behalf of Charlotte and David James that Terrena was the daughter of Jacob Farmer, and that the property at the death of Terrena was non-ancestral and passed to her husband, Judge W. D. James, and at his death in 1913 to hi children. On the part of the Yulgamores it is claimed that Terrena was the child of J esse M., and that the property was ancestral and after the death of Judge James the title returned to the Yulgamore family.

The sole question in the ease is: Who was the father of Terrena?

Counsel for Charlotte and David James contend that since Terrena was begotten in lawful wedlock when her mother, Eva-line, was the wife of Jacob Fariñer, and as such husband and wife had access to each other in April, 1857, when Terrena was begotten, then by virtue of the rule in Powell v. State, 84 O. S., 165, she must be the daughter of Jacob Farmer, and not the daughter of Jesse M. Vulgamore.

Counsel for the Yulgamores contend that since Jesse M. married Evaline when she was big with child and afterward acknowledged the child as his own, she must be his daughter, and not the daughter of Jacob Farmer. Miller v. Anderson, 43 O. S., 473.

When it is admitted or shown that husband and wife have access to one another at the time a child is begotten in lawful wedlock one of the strongest presumptions of law arises that the child is the offspring of the husband. When it is shown that at the time of marriage the mother was big with child and the husband afterwards acknowledges the child as his own then an equally strong presumption of law arises that the child is the offspring of the husband. Each of these presumptions is often described as conclusive.

Counsel for each of the parties confidently rely upon one or the other of these presumptions for a decision of this case in their favor. But manifestly they can not both be indulged in at the same time if of equal force, for the effect would be a stand-off. They would not move the court toward a decision, but would rather cause it to standstill and forever prevent a final determination.

It would seem that the presumption in regard to a child begotten in lawful wedlock arises first, if at all, in point of time, because conception precedes birth. Now if this presumption must first be taken into account and is conclusive then no evidence could be received to overthrow it, and hence no conflicting presumption could arise to affect it. This would exclude from consideration the other presumption and would be the end of the case. But it is important to observe under what circumstances these two presumptions arise. When it is said that a child begotten in lawful wedlock is presumed to be the offspring of the husband of its mother the presumption arises in ordinary cases where the child is born after the death or divorce of the father and without the fact of a second marriage before birth of the child, and without the acknowledgment of the parentage of the child by the husband of the second marriage. When a man marries a woman big with child and acknowledges the offspring as his own and the. presumption arises that it is his child, it is in the ordinary case where the woman was unmarried at the time of conception. But in the case under consideration the facts are entirely different. While 'Terrena was begotten in lawful wedlock of Jacob Farmer and Evaline Farmer she was born after her mother was married to another man. A new

fact appears which is not found in the cases where the ordinary-presumption of legitimacy arises when a child is begotten in lawful wedlock. So, also, while it is true that Jesse M. Vulgamore married Evaline when big with child and acknowledged Terrena as his offspring, yet when Terrena was begotten her mother was not single, as in the usual case, but was married to another man. A new fact appears which is not found in the eases where the ordinary presumption of legitimacy arises when a man marries an unmarried woman big with child and acknowledges the offspring to be his own.

So the ease under consideration contains facts which are not found in the cases where the two presumptions above referred to are ordinarily indulged by the courts. Since these presumptions are only indulged under certain circumstances and the ease under consideration presents wholly different circumstances, it clearly becomes a question whether the court has a right to indulge either one in the consideration of this case.

We may find an answer to the question by inquiring for the reason of indulging these presumptions in eases where they properly arise. An examination of the books will disclose that the principal reasons for these presumptions are:

1. For the reason that all presumptions are made use of, to-wit: “When the fact can not itself be demonstrated, that which comes nearest to proof of it is proof of the circumstances necessarily or usually attending it.” 3 Bl. Com., 371.

2. For the benefit of the offspring—to avoid bastardizing the issue.

Now let us apply the reasons for these presumptions to the facts in the case under consideration and see the result. To restate the first proposition above referred to, it is as follows: When a child is begotten in lawful wedlock it is presumed to be the offspring of the husband of the mother because the offspring of a married woman is ordinarily the child of her husband. The father of Terrena is .the fact that can not be demonstrated. But when proof is admitted that Jacob Farmer was the husband of Evaline when Terrena was begotten, that is proof that he is the father of 'Terrena because the fact usually attending the birth of the child of married people is that the husband is the father. But when we consider the facts in this case we must consider all of them. While it is true that when a child is begotten in lawful wedlock it is presumed to be the offspring of the husband of the mother because this is the usual and ordinary fact, can it be said to be the usual and ordinary fact where the mother before the birth of the child marries another man, who had access to her when the child was begotten and marries her when big with child and acknowledges the child as his own? These facts are very unusual and extraordinary, and no one can say under these circumstances that the husband of the first marriage is ordinarily and usually the father. So, also, while it is true that when a man marries a woman big with child and acknowledges the child as his offspring the presumption arises that it is his because it ordinarily and usually is, can it be said to be the ordinary and usual fact when the same child was begotten at the time the mother was the wife of another man who had ac-. cess to her at the time of conception ? Certainly no one will pretend that it is the usual and ordinary fact.

Further, as stated above, these particular presumptions are made use of by the courts especially to avoid judgments declaring the offspring of married people bastards. But such a doctrine is wholly out of place in this case. We are told in Powell v. State, supra, that “the common law definition of a bastard is one that is begotten and born out of lawful matrimony,” but Terrena was both begotten and born in lawful matrimony. If she is not adjudged to be the legitimate child of Jacob Farmer she must be adjudged the legitimate child of Jesse M. Vulgamore. So it seems clear that neither of these presumptions arise in the case under consideration because the reasons for their being called into operation are absent, in view of the facts in the case. The court is then left to a determination of the fact in issue without the presence of either of these presumptions.

We have taken into consideration the affidavit of Evaline, filed in her divorce proceeding, and we find it of substantially no value in the ease. We are asked to consider it by the parties who hold to the theory that Terrena was a Vulgamore. Viewed from that, standpoint the divorce proceeding was a fraud. Eva-line Farmer represented to the court that she was a virtuous woman, and on the theory that Terrena was a Vulgamore she imposed on the court because she was an adulteress and at the time of the divorce trial was heavy with child by a man not her husband.

We have also considered the statement of the witness Adams to the effect that Evaline told him Terrena was the child of Farmer. But we do not attach any importance to that as it is not to be expected that a woman will make admissions which convict her of adultery.

There are a few outstanding facts, some of which are beyond dispute, which are decisive of this ease. Jesse M. Vulgamore had opportunity for sexual intercourse with Evaline Farmer in April, 1857, when Terrena was begotten. It is probable that while Jacob Farmer was in the neighborhood he and Evaline were living separate and apart. Jesse M. Vulgamore was Eva-line Farmer’s lover in April, 1857, and he frequently visited her about that time. He married her when she was big with child and acknowledged Terrena as his daughter. He believed she was his daughter. Terrena believed so during all her life. The next of kin of Jesse SI. Vulgamore believed so. There was some testimony that her parentage was disputed. Naturally, under the circumstances, it would be. The fact that it was disputed and yet when the property of John M..was distributed the family allowed Terrena to participate in- the distribution without a legal contest, is strong evidence of the fact that they believed she was a Vulgamore, for the court has no doubt they would have contested her right at law if they sincerely doubted that she was the child of Jesse M. Now since Jesse and his next of kin, who were in a position to know all the facts, believed Jesse was the father, and Terrena herself believed so all her life, we come, without hesitation, to the conclusion that Terrena was the daughter of Jesse M. Vulgamore, and that the property devised by him to her was ancestral, and that the defendants, Charlotte, and David James, have no interest therein.

Decree accordingly.

AVai/ters, J., and Merriman, J., concur.


author: Gorman, J.

text:
    NATURE OF THE TIME LIMITATION IN THE FEDERAL EMPLOYERS’ LIABILITY ACT.
    Court of Appeals for Hamilton County:
    Charles Omin v. The Baltimore & Ohio Southwestern Railroad Company.

    Decided, March 5, 1917.

      Master and Servant—Right to Sue Under the Federal Employers’ Liability Act—Lost by Disregard of the Time Limitation—Which is Not Tolled by Acceptance of an Offer by the Master of Temporary Employment of a Kind Suited to His Condition.

    The federal employers’ liability act confers upon an injured employee the right to bring suit for damages, to which right is attached the condition that the suit must be brought within two years. It is, therefore, not in the nature of a statute of limitations, but is a provision which limits a liability which did not otherwise exist, and the right to proceed thereunder is lost by lapse of the two year period.

      Betting er, Schmitt & Eréis, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, contra.

       Affirming Omin v. B. & O. S. W. Railway Co., 20 N.F. (N.S.), 33. Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 26, 1917,

   Gorman, J.

This proceeding in error is brought to reverse a judgment of the common pleas court wherein an instructed verdict was returned in favor of the defendant.

The action was one to recover damages for personal injuries said to have been received by the plaintiff February 17, 1912, while employed by the defendant company as a freight truck-man.

The defendant by answer denied generally all the allegations of negligence set out in the petition. In a second defense it alleged that at the time of the accident Omin was employed by it in commerce among the several states, and that the action was not brought within two years from the date on which it occurred—that being the time limit for the commencement of actions under the federal employers’ liability act.

By way of reply to this second defense plaintiff alleged that immediately after leaving the hospital where he was confined on account of his injuries, he threatened to institute suit to recover damages for his injuries, and that thereupon the defendant- promised and agreed that if he would not bring suit it would provide him with such employment as his physical condition would warrant and would take care of him as long as he was disabled; that pursuant thereto the defendant did employ him in the office of its depot master until July 17, 1914, but that ever since said date although the disability of the plaintiff on account of his injuries still existed the defendant refused to give him employment or to take care of him as it had agreed to do, and that by reason thereof defendant is estopped from pleading said statute.

At the close of the plaintiff’s testimony the trial court, as above stated, instructed the jury to return a verdict for the defendant, among other reasons, because the plaintiff had failed to bring his action within two years from the time his injuries occurred.

Several errors are complained of by plaintiff in error, but we deem it unnecessary to pass upon any other question than that of whether or not the action was brought in time.

Under the federal employers’ liability act, Section 6, U. S. Comp. St., 1913 (Section 8662), passed April 22, 1908, it is provided that—

“no action shall be maintained under the statute unless commenced within two years from the day the cause of action accrued. ’ ’

The plaintiff seeks to avoid the effect of this statute by pleading the conduct of the° defendant in giving him employment upon the condition that he forebore to bring suit. But it has been held in several well-considered cases that the statute just cited confers a right to which is attached a condition that it be enforced within the stated period—two years. The act creates -a liability where none existed theretofore, and it takes away defenses which were formerly available. Coupled with the enlargement of the liability of carriers is the limitation that no action shall be maintained under the act unless commenced within two years from the time the cause of action accrued. 'This condition in the statute is not an ordinary statute of limitations. It affects the right and not the remedy. If it were merely a statute of limitations we have no doubt that the defendant would be estopped from setting up the failure of the plaintiff to bring his action within two years by reason of its agreement with him to give him employment upon the condition that he forebore to bring an action to recover damages. The time within which the suit must be brought operates as a limitation of the liability and not of the remedy alone. It is a condition attached to the right to sue at all. Time has apparently been made of the essence of the right, and the right is lost if the time is disregarded. The liability (which did not exist apart from the statute) and,the remedy are created by the same statute and the limitations upon the plaintiff’s right to maintain the action are to be treated as limitations of the right and not limitations upon the remedy.

This question was squarely presented to the Supreme Court of Michigan in Bement v. Grand Rapids & I. Ry. Co., 160 N. W. Rep., 424; to the same effect are the decisions in Morrison v. B. & O. R. Co., 40 App. Cas. D. C., 391; and Partee v. St. Louis & S. F. R. Co., 204 Fed., 970.

It is admitted in this case that the right of the plaintiff to recover, if he had a right, arose under the federal employers’ liability act in that he was engaged while employed by the defendant in interstate commerce. It has been a universal rule, adopted by all the states, that the construction of the federal statutes by the federal courts should be followed by the state-courts in construing the same statutes! .It v/ould appear to us that the application of this rule laid down in the cases cited operates to bar the plaintiff’s right to recover, for the reason that his right was lost by the lapse of time, and not because he failed to invoke the remedy within the two years.

We deem it unnecessary to pass upon the other alleged questions of error in the case. For the reasons stated the judgment of the court below will be affirmed.

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


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

text:
    ANNULMENT OF THE THOUGHTLESS MARRIAGE OF A GIRL OF SEVENTEEN.
    Court of Appeals for Wood County.
    Lila Marie Moser v. Ananias Long.
    Decided, May 6, 1916.

      Public Policy—'With Reference to a Contract of Marriage—Entered, into by a Girl while a Minor—Without Consideration or Parental Consent—And Immediately Repudiated—Action for Annulment of the Contract Lies.

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

      Harrington & Dunn, for plaintiff.
   Chittenden, J.

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

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

The evidence shows that the plaintiff, immediately after the marriage ceremony, • repented her folly, and upon the fact of the-marriage being made known to her parents, expressed to them her regret and her desire and intention to repudiate the same. In explanation of her act she says that ‘1 He kept teasing me and pressing me and I simply lost my 'head, and as soon as I began to think it over I repented what I had done.”

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

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

The statute of Ohio, which differs in no essential respect from the statute of Michigan upon the subject of marriage, provides, Section 11181, G-. C.,-that:

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

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

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

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

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

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

Kinkade, J., concurs.

Richards, J.,

dissenting.

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

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

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

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

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

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

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

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

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

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

Kinkade, J.

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

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

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

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

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

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

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

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

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


author: Kunkle, J.

text:
    RAILWAYS AND THE FRANCHISE TAX.
    Court of Appeals for Franklin County.
    State of Ohio v. The Little Miami Railroad Company.

    Decided, April 11, 1917.

      Taxation—Construction of the Franchise Tax Law With Reference to Its Application of Lessor Railway Companies.

    The Langdon act (101 O. L., 399-425) must be construed, in so far as it ■ ' defines the corporations which are subject to the franchise tax, as a revision of the Willis act (95 O. L., 124-128), and its scope as so amended is not changed by the subsequent ITollinger act (102 0. L., 224) with respect to corporations which are subject to the franchise tax; from which it follows that a railway company which has leased its line to an operating company is exempt from payment of the franchise tax, where the operating company is required to and does report and pay the excise tax.

      Joseph McGhee, Attorney-General, and Clarence Laylin, for plaintiff in error.

      W. 0. Henderson and Lawrence Maxwell, contra.

       Affirming State v. Little Miami R. R. Co., 19 N.P.(N.S.), 234.

   Kunkle, J.

This case was submitted to the lower court upon a general demurrer to the answer of defendant in error. The lower court held that the answer stated a good defense and overruled the demurrer. Plaintiff in error did not desire to plead further and final judgment was rendered in favor of defendant in error. Error is prosecuted to this court from such judgment.

It appears from the answer that defendant in error is an Ohio railroad corporation owning a certain railroad, and in 1869 leased its said line of railroad for ninety-nine years, renewable forever, to the P., C., 0. & St. L. Railway Company. Since said date the last named company has maintained and operated the defendant’s line of railroad under said lease. It further appears from the answer that during the period for which plaintiff in error seeks to hold the defendant in error for the payment of a franchise tax, that the said lessee of said line of railroaff has paid the excise tax as a railroad corporation under the Hollinger act.

This action seeks to charge the lessor company, namely, the defendant in error, with the payment of a franchise tax under the Willis act as amended. .

We have carefully considered the very helpful briefs which have been filed by counsel. We have also examined with care the written decision of Judge Bigger of the court .of common pleas, which has been filed and presented to this court. -.

We shall not undertake to discuss in detail the authorities cited by counsel; but will merely announce the conclusion at which we have arrived after a careful examination of such authorities. ' ' ■ .

We are in accord with the conclusion reached by Judge Bigger and in the main with the . reasoning contained in his written decision.

We think the Langdon act, in so far as it defines the corporations which are subject to the franchise tax., should be construed as a revision of the Willis act. We are also of. opinion that the Hollinger act does not change the scope of the Willis act as amended by the Langdon act,.in respect to the corporations which are subject to a franchise tax.

In view of our conclusion as to the scope of the Langdon and Hollinger acts, we think the decision of the Court of-Appeals of Cuyahoga County in the case of Cleveland & Pittsburgh R. R. Co. v. State of Ohio, 20 C.C.(N.S.), 2 Appellate Court Reports, page 228, approved by the Supreme Court March 24, 1914, is decisive of the ease at bar.

The judgment of the lower court will be affirmed. ,

Allread, J., and Ferneding, J., concur.


author: Carpenter, J.

text:
    ENLISTMENT OF MINORS IN THE NATIONAL GUARD.
    Court of Appeals for Cuyahoga County.
    In the Matter of the Application of Oliver Bugbee for a Writ of Habeas Corpus.

    Decided, November 13, 1916.

      Military Matters■—Writ of Habeas Corpus—Does Not Lie for Release of Member of the National Guard,—On the Ground, That Enlistment Was Without Consent of Parents.

    A state court Is without jurisdiction of an application for release by habeas corpus of a member of the National Guard whose enlistment, when between sixteen and eighteen years of age, was without the consent of his parents.

      Alfred L. Steuer, for complainant.

      Turney, Olds & Sipe, contra.

      Motion for an order directing the Court of Appeals to certify its record in ..ais case overruled by the Supreme Court July 3, 1917.

   Carpenter, J.

On the 28th day of June, 1916, Mrs. Elizabeth Bugbee filed with the clerk of the Common Pleas Court of Cuyahoga County the following petition, upon which an alternative writ was issued and due return of service of process made:

“Your petitioner, Mrs. Elizabeth Bugbee, mother and next friend of Oliver Bugbee, a minor, respectfully represents that said Oliver Bugbee is unlawfully restrained of his liberty by one Captain Oatman of Company ‘C’ Engineers, Fifth Regiment; that said Oliver Bugbee is but seventeen (17) years of age, and that his parents have never consented to his enlistment in said Company ‘C.’ Wherefore your petitioner asks that a writ of habeas corpus may be granted and he may be discharged from such unlawful imprisonment.”

The return of Captain Harry C. Oatman admits that he is holding the said Oliver Bugbee as a soldier of Company “C” Corps of Engineers, National Guard of the United States of America, and as a soldier of the United States and not otherwise, and also avers that he is such soldier and in that capacity has been ordered by the President of the United States into service and is now serving in obedience to the said order, and as such has received allowance and equipment from the United States; and having produced the body of said Oliver Bugbee, claims that the state courts of Ohio are without jurisdiction in the premises.

The following statement of facts were agreed upon and filed as a part of the record:

“(1) That soldier is over 16 and under 18.

“(2) 'That President’s call was June 18th.

“(3) Bugbee properly enlisted June 21, except as stated m (5)-

“ (4) That he has been on United States pay-roll since June 21st, and has been serving since said day and has received the equipment and allowances of a soldier.

“ (5) That mother’s signature on enlistment paper was not written by her, which fact was unknown to enlisting officer who supposed she had signed same.

"(6) That neither father nor mother has since consented to his enlistment.

“ (7) That he is detained by Capt. Harry C. Oatman as commanding officer Company C Corps of Engineers, as a soldier, and under charge of fraudulent enlistment.

-“(8) That the soldier signed the new form of enlistment oath. ’ ’

Upon hearing, the court of common pleas found that said Oliver Bugbee was being unlawfully detained and granted the writ, ordering that he be remanded to his parents. From this judgment error is prosecuted to this court.

The real question presented may be stated thus: Whether any judicial officer of a state has jurisdiction to issue a writ of habeas corpus or to continue proceedings under the writ when issued for the discharge of a person held under the authority or claim and color of authority of the United States by an officer of that Government. Under S'ection 8, Article I of the Constitution, Congress has power to provide for organizing, arming and disciplining the militia, and for governing such part of- them as may be employed in- the service of the United States.

In Section 2, Article II of the Constitution, the President shall be commander-in-chief of the army and navy of the United States when called into actual service of the United States.

It is conceded that the President under his constitutional authority did on the 18th day of June, 1916, three days before Bugbee’s enlistment, call into service of the United States the National Guard of the State of Ohio. That Bugbee has been on the pay-roll since.June 21st and has been serving since said day and has received the equipment and allowance of a soldier. In other words, he became on June 21st, 1916, and has since continued, not only de facto but de jure, a soldier, subject to the laws and regulations governing the Regular Army, as provided ■in Section 101 of the amended federal militia law. This was Bugbee’s status when his mother filed her petition. Notwithstanding he was under the statutory age when he enlisted, yet he could not avail himself of a writ of habeas corpus, for his contract is binding upon him as under a common law contract, and was not voidable.

“■It is established law that a minor enlisted over 16 without his parent’s consent can not himself repudiate the contract and obtain his release from service on his own petition.”

See Wagner’s case, 24 Fed., 135; Davison’s case, 21 Fed., 618; Hearn’s case, 32 Fed., 141; Spencer’s case, 40 Fed., 149; Solomon v. Davenport, 87 Fed., 318, 301 C. C. A., 664.

It is contended by the petitioner that 'inasmuch as Bugbee, being under the statutory age of. 18 and having enlisted in the service without the consent of his mother or father, his enlistment was not such as is contemplated by Section 1117 of the Revised Statutes of the United States, as amended June 3, 1916. Said statute is'as follows: '

■ -'“No '.person under‘the 'age of 18 years’ shall be .'enlisted or mustered into the military service of the United States without the written consent of his parents or guardians; provided, that such minor has such parents or guardians entitled to his custody and control.”

And it is also contended that the mere publication of the Presidents call was not effective until a time had been fixed when the National Guard should respond. Even so, but the time was fixed and the call was made to become effective forthwith as evidenced by the President’s proclamation issued June 18th, 1916, in these words, as written in the latter portion of the proclamation : •

“I am, in consequence, instructed by the President to call into the service of the United States forthwith through you the following units of the organized militia and the National Guard. ’ ’

Returning, now, to the effectiveness of Section 1117 as it relates to the claim of the petition, that “the enlistment of Bug-bee was not such as contemplated by this statute.” It is true that this statute was passed for the benefit of the parents or guardians. It means simply that the government will not disturb the control of parent or guardian over his consent to invoke the aid of the court and secure the restoration of a minor to his or her control, but it gives no privilege to the minor. It evidently has reference to the national military forces raised and maintained by Congress under its power to raise and support armies and to the National Guard called as such by the President into the service of the United States for constitutional service. Section 101 of the federal militia law provides that—

“The National Guard when called as such into the service of the United States shall, from the time they are required by the terms of the call to respond thereto, be subject to the laws and regulations governing the regular army, so far as such laws and regulations are applicable .to officers and enlisted men whose permanent retention in the military service, either on thé active list or on the retired .list, is not contemplated by existing law.”

It will be observed that there is no provision in Section 1117, nor in any of the sections of this chapter, where authority is

given to a state court to exercise jurisdiction in habeas corpus over this class of eases. Instituting such a suit is equivalen! to suing the Government of the United States, which every tyro in the law knows can not be done without the government’s consent, and it must be manifest to any one that if the courts of the several states in the Union could exercise jurisdiction it would greatly impair the power of the national government in the formation, organization and efficiency of its armies, even to the point of destruction. That a state court does not have jurisdiction is manifest from the following excerpt in Tarbler’s case, 80 U. S., 397. Section 2 of the syllabus is as follows:

“A state judge has no jurisdiction to issue a writ of habeas corpus, or to continue proceeding under the writ when issued for the discharge of a person held under the authority of claim and color of the authority of the United States by an officer of that government. If, upon the application for the writ, it appears that a party alleged to be illegally restrained of his liberty is held under the authority or claim and color of the authority of the United States by an officer of that government, the writ should be refused. If this fact does not thus appear the state judge had the right to inquire into- the cause of imprisonment, and ascertain by what authority the person is held within the limit of the state; and it is the duty of the marshal or other officer having the custody of the prisoner to give, by a proper return, information in this respect. But after he has been fully apprised by the return that the party is held by an officer of the United States by the authority or claim and color of authority of the United States, he can proceed no further.” Ex parte Winfield, 236 Fed., 552.

A majority of this court is of the opinion that it is without jurisdiction in the- premises, and the-petition in error is dismissed. The judgment of the common pleas is reversed and remanded for further proceedings.

Meals, J., concurs; Grant, J., dissents.


text:
    AS TO WHETHER. THE WILL IN CONTEST WAS TESTATRIX’S TESTAMENTARY ACT.
    Court of Appeals for Cuyahoga County.
    Nellie W. Morris v. Dollie Osborne et al.

    Decided, February 21, 1916.

      Wills—Presumption of Knoivledge of the Decedent as to Contents of the Will Executed—Evidence of Such Knowledge Afforded by Republication—Sufficient Warrant for Direction to Jury to Return a Verdict Sustaining the Will.

    1. In a will contest a presumption arises that the will was drawn in accordance with instructions given by the testatrix and was read to her and explained and found by her to be expressive of the instructions so given.
    2. Where no evidence was proffered as to whether the will was or was not read to the testatrix and explained to her at the time of its execution, but it appears that her mental condition was such as to leave no doubt of her capacity to make an intelligent and discreet disposition of her property, and it is in evidence that when the will was republished by the addition of codicils it was read and explained to her paragraph by paragraph, it is not error to direct a verdict for the defendants.
    3. Where a codicil is attached to a will, which clearly and unmistakably refers to the will, so as to preelule all doubt as to its identity, the will and codicil are to be taken and construed together as parts of one and the same instrument, and proof of the codicil will establish the will.

      White, Johnson, Gannon & Neff and E. S. Meyer, for plaintiff in error.

      Squire, Sanders & Dempsey, contra.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, April 25, 1916

   Carpenter, J.

This action was brought in the common pleas court to contest the will of Dorothy Morris, executed on the 17th day of June, 1909. It was drawn by her attorney, H. J. Caldwell, who for many years was one of the judges of the circuit court of this .'•district. He is remembered by the judges of this court as an unusually painstaking, careful and able jurist. He was named in the will as executor.

Shortly after his death the testatrix executed a codicil to her will in which she appointed the Guardian Savings & Trust Company as executor. Subsequently she executed in succession three additional codicils dated respectively November 16, 1910, February 28,1911, March 25, 1911.

'The language of the will is remarkable for its simplicity and clearness of expression throughout. Indeed, one can scarcely perceive how it could be improved in any respect. As'an example óf this we quote this clause: “What remains of my estate after taking therefrom my just debts, the foregoing legacies and said notes not to be accounted for, which I hereafter call the residue of my estate, I give and divide as follows:”

The testimony is quite voluminous, but from it all we may extract:

1st. That all the witnesses testify that the testatrix was of sound mind;

2d. That she knew full well and appreciated the nature and extent of her property, and had in memory even the names and birthdays of her children as well as her grandchildren.

3d. That she was an unusually methodical woman in all her financial dealings. She kept records of all her receipts and disbursements, and was insistent upon having an explanation of any financial matter or business transaction in which she was interested;

4th. And that she had sufficient mental capacity to understand the nature and legal effect of the provisions of her will and codicils if they were explained to her.

In fact, the foregoing appears to be admitted by counsel for ■plaintiff, but they claim that the will was neither read to her nor explained. And it will be noted that there is no positive evidence in the record that the will was read or not read and explained to her before its execution, except that'the WitheSse's to the will testified that they were called in by Judge ■Caldwell to witness the will, which had been prepared by him;'and thqt during the time they were so occupied the will was neither read nor explained.

At the conclusion of the evidence, the court granted the motion of the defendants to withdraw the case from the jury and direct the jury to return a verdict in their favor. 'This was done, and a verdict returned as directed.

The contention of the plaintiff is expressed in counsel’s brief as follows:

“We have said probably Dorothy Morris possessed testamentary capacity, but granting that she did possess testamentary capacity, we contend, upon ample authority, that in addition to the possession of testamentary capacity it was necessary that Dorothy Morris should know what the will contained and knowing what the will contained, should understand it. Otherwise plainly it is not her will. Otherwise plainly her mind did not accompany the testamentary act. ’ ’ But counsel, having admitted testamentary capacity of the testatrix, has fallen into a pit from which he can not extricate himself, by his own citation of authority, which he quotes from the following eases of Tomkins v. Tomkins, 19 Am., 656-659, and Den v. Johnson, 8 A.m. Dec., 610-13 and 14, respectively:

“A will is defined to be the declaration of a mind, as to the manner in which he would have his estate disposed of after his death. The usual and almost the only mode in which assent to a writing is manifested, is by subscribing it; and, in the absence of any other proof, that would be sufficient evidence of assent to a will, as well as to any written contract. ’ This constitutes, indeed, the highest evidence; but it is not conclusive. According to the definition, a will ought to express the min'd of the testator; and that can not be his mind, or will, of. Which he is ignorant. The case of Billinghurst v. Tickers, 1 Phillim, 187, furnishes some of the rules by which we are to be governed in the inquiry as to the assent of the testator. In that case Sir John Nieholl lays it down as a principle well established, that ' Where -capacity is in any degree doubtful at the timé of- the execution, there must be proof of instructions or reading over. Tomkins v. Tomkins, 19 Am. Dec., 656, 659.

“If, upon the whole, the jury should be of the opinion that the mental powers of the testatrix were so far enfeebled and broken as that she could not make a discreet disposition of her affairs herself, and that the will in question was devised by other persons, and only assented to by her on being asked, without the power of understanding it, then they ought to find for the plaintiff.

“Again it was stated (in the charge to the jury) that though they should find that the testatrix did possess her mind, in such a degree that she might have made a rational disposition of her affairs, yet if they should be of the opinion from the whole evidence, that the will was written without any consultation with, or direction from her, and that from her great weakness and debility she was unable to read the same as the plaintiff had alleged, then it was incumbent upon the defendant to prove that it had been fully read or fully explained to her, for without that, though it might be her will in form, it could not be so in truth and fact.” Dem v. Johnson, 8 Am. Decision, 610, 611.

“Where a will is not read by or to the testator, and it has been prepared by another person from instructions given by the testator, and is then signed on an assurance that it expresses what he desires, if the language inserted is not the language of the instructions, and if it does not make in legal effect the provisions which the testator apparently desired, it is not his will.” Waite v. Frisbie, 45. Minn., 361.

It is manifest that the plaintiff has not brought herself within the law as announced in these excerpts. There is not only no evidence that “the testatrix was so far enfeebled and broken as that she could not make a discreet disposition of her affairs,” but the evidence is positive to the contrary. Neither is any evidence introduced that her capacity is somewhat doubtful: The presumption is that the will was prepared from instructions . given by the testatrix and that it was drawn expressive of those instructions and was read to her and explained. Every lawyer knows from his own experience in drawing wills that the will . is written from instructions given him by the testator, and invariably is read carefully to him before it is signed.

' In the-case of Sheer v. Sheer, 159 111., 591, the court in.'its opinion says:

“The rule of law is, ‘where the testator is shown to have executed an instrument as his will, being in his right mind, and there is nothing of fraud or imposition, it will be presumed that he was aware of its contents. The general rule is, that proof of the testator’s signature to the will is prima facie evidence of his having understandingly executed the same.”

'The third clause of the syllabus in that case is as follows:

“A will prepared at the request of a testator, even under general directions and afterwards executed in the manner provided by law, should not be set aside on the ground that he did not understand what it contained, except upon clear and satisfactory proof of that fact.”

Section 12083 of the General Code provides that “on the trial of such issue the order of probate shall be prima facie evidence of the due attestation, execution and validity of the will or codicil.” The burden of proof is thereby cast upon the contestant.

We are convinced that the plaintiff has utterly failed in producing even a scintilla of evidence tending to prove her case as the law requires. Such being the case, we are also clearly of the opinion that the court did not err in withdrawing the ease from the jury and instructing the jury to return a verdict for the defendants. It is so provided in Wagner v. Wagner, 44 O. S., 59, the second clause of the syllabus of which is as follows:

“In the trial of the contest of a will, where the testimony introduced does not tend to prove the issue on the part of the plaintiffs showing incapacity of the decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of the plaintiff’s testimony, to direct the jury to find a verdict sustaining the will.”

Even though we are in error in so holding, yet we must remember there were four codicils to this will, and that Mrs. Osborne testified that a few months after her mother executed the will she read it to her mother, and they talked together about its provisions. When she came to the provision regarding Aunt Hannah Nicholas, her mother said: “Dollie, I am very glad you think that I can give that to Aunt Hannah, because I always feel that she needed the money. She has worked hard.” And when she came to her nieces, Dollie and Mollie Price, her mother said: “ 1 always tried to do all I could for my sister’s children. ’ ’

George F. Hart, who drew up the second codicil, testifies that he “read the will twice to the testatrix, item by item, and explained to her the items as I went through,” and that she seemed to comprehend the purport of the document.

John Fish, who was a witness to the last codicil, testified that he read the will and the codicil to the testatrix, and she asked him some questions on the will, and more particularly on the last codicil. She asked me the effect on the will and the previous codicil to which it referred.

It is the law of this state that a will and codicil are to be taken and construed together as parts of one and the same instrument, and the intent of the testator gathered from the whole. Mack v. Bonner, 3 O. S., 369; Black v. Webb, 20 O. S., 311.

It is also a general rule of the law that a properly executed codicil, which is attached to a will or which refers to it specifically acts as a republication of the will as of the date of the codicil, and the effect of republication is to make the will in legal effect a valid will as executed at the time of such republication and speaking as of such time. Page on Wills, Sections 307 and 308.

“Also, when a codicil is written on the same piece of paper or a separate one, and clearly and unmistakably refers to the will so as to preclude all doubt as to its identity, proof of the codicil will establish the will.” Frye v. Morrison, 159 Ill., 244.

Inasmuch, therefore, as the will and the codicils became in legal effect, by republication, one instrument and one will dating from the time of the execution of the last codicil, plaintiff would scarcely be allowed to claim, in face of the admitted evidence, that the testatrix did not understand the provisions of the will because they were not explained to her.

The decision of the court of common pleas is therefore affirmed.


author: Houck, J.

text:
    SPECIAL CHARGES NOT SUBJECT TO COMMENT BY TRIAL JUDGE.
    Court of Appeals for Tuscarawas County.
    Tuscarawas County Commissioners et al v. Swanson et al.

    Decided, July 11, 1916.

      Charge of Court—Duty of Trial Judge With Respect to Special Written Requests for Instruction of Jury—Evidence Immaterial or Irrelevant.

    Special charges before argument should be either given or refused by the trial judge without change, modification or comment; and a statement addressed to the jury by him to the effect that the instruction so given was not conclusive or more than a tentative statement of the law which might be modified in his general charge constitutes error which, in the event of a verdict adverse to the party asking that such instruction be given, must be regarded as prejudicial error.

      E. E. Lindsay, Prosecuting Attorney, and Buchanan, Beed & Bussell, for plaintiffs in error.

      J. E. Greene, D. A. Hollingsworth and Lynch, Day, Eirwple & Lynch, contra.

      Motion to direct the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 21, 1916.

   Houck, J.

This is a proceeding -in error and is prosecuted from the Common Pleas Court of Tuscarawas County, Ohio, to this court, where it is sought to reverse the judgment of the said court of common pleas. The plaintiffs in error were the defendants in the lower court, and the defendants in error were the plaintiffs.

The petition of the plaintiffs below sets forth three causes of action, being in substance as follows:

First. That for many years prior to March, 1909, there was a bridge across the Tuscarawas river, in Warwick township, Tuscarawas county, Ohio, belonging to and maintained by said county; that the same had become dangerous for public travel, by reason of decay, etc.; that it was condemned for public travel by the county commissioners of said county; that said bridge was an important one and used much for public travel; that plans were ordered prepared by said county commissioners for a new concrete bridge at or not far from the point where the old bridge stood; that plans and specifications were prepared for a new bridge, bids advertised for, etc.; that plaintiffs bid on same, and being the lowest bidders were awarded the contract for said new bridge; bonds were sold as provided by law, and a written contract entered into with plaintiffs for the construction of 'said bridge for the sum of $31,196.77; that plaintiffs executed the proper bond; that the plans and specifications, contract and bond, each and all were approved by the prosecuting attorney of said county, and that everything in the premises required by law to be done was done by plaintiffs.

Thereupon the plaintiffs entered upon the execution thereof, and obtained a large quantity of materials which they used therein, and employed a large amount of labor in and about the work of building and constructing said bridge. That on October 27th, 1909, the county engineer, Edward Stingle, the agent of the defendants, and who was authorized to inspect, approve and accept said work, materials, etc., approved an estimate to the amount of $602.52; that same was done under the terms of said written contract; that defendants refused to pay same, and plaintiffs pray for judgment for said $602.52 at six per cent, from October 27th, 1909.

Second. Plaintiffs pray judgment for a second estimate of $776.10 at six per cent, from December 10th, 1909.

Third. That in addition to the estimates set out in the first and second causes of action they expended the sum of $15,000 under said contract in and about the work and materials used and in the necessary preparation to carry on said work; that plaintiffs were ready and willing to carry out their part of the contract, bnt defendants refused to permit them to do so, and defendants have notified plaintiffs to cease work upon said contract and have compelled them to abandon their work, and no part of said materials furnished or work done by them has been paid for, and by reason whereof they pray for judgment for $13,618.38, with interest from December 10th, 1909.

Wherefore, plaintiffs ask for a judgment in the sum of $15,-000 with interest.

The answer admits certain allegations in the petition, but the defendants rely upon the following defenses:

1. That the new bridge was not being built at the particular point where the" old bridge stood.

2. That the plaintiffs did not expend the money claimed by them to be expended, and that they had not furnished the. materials and had not done the work claimed by them.

3. That the contract was not approved as required by law, and the letting of same had not been properly advertised.

The reply filed by plaintiffs was in the nature of a general denial of all the allegations therein inconsistent with the allegations of the plaintiffs’ petition.

Upon these pleadings and the evidence the cause was submitted to a jury, and a verdict rendered in favor of the plaintiffs in the sum of $10,663.84. A motion for a new trial was filed, heard and overruled, and a judgment entered on the verdict.

The plaintiffs in error seek a reversal of the judgment below upon numerous grounds, as set forth in their petition in error, but in oral argument their counsel seem to rely upon the following grounds:

1. That the trial judge erred in overruling the demurrer to the petition.

2. Because no handbills had been circulated, and the proper notice had not been given of the fact that a new bridge was to be constructed.

3. For the reason that the bridge was not constructed at the point or place of the old bridge.

4. That the court erred iu giving special written requests Nos. 2, 3 and 4, before argument, as requested by plaintiffs below.

5. 'That the court erred in refusing to give written request No. 1, before argument, as requested by defendants.

6. That the court erred in its general charge to the jury.

7. That the verdict of the jury was against the manifest weight of the evidence.

As to alleged errors 1, 2 and 3, we will say that this cause has heretofore been before this court on a demurrer to the petition which involved the same questions, and the court having overruled the demurrer we do not think it necessary to discuss the same further than to say that we still adhere to our former holding and judgment in overruling said demurrer to the petition in this case.

Fourth ground of alleged error, as to special written requests Nos. 2, 3 and 4, given before argument at the request of the plaintiffs below, we find upon examination that each and all of them are correct propositious of law, and are clearly applicable to the facts in the present case, and the court committed no error in giving them to the jury.

In passing, we will say that it is the duty of a trial judge, when requested to do so by either party before argument, to give to the jury special written requests as to the law applicable to the facts and the issues to be determined in the ease, and if they are proper to be given they must be given without comment on the part of the court.

From an examination of the record in this case we find that the trial judge made comments upon these requests, and stated to the jury that they might be modified by what he might say in his general charge. The court said:

“But I will charge a part of the plaintiffs’ requests with the distinct understanding that something that I might say, and it might be considerable, in the general charge, that will be delivered to you after the argument, must be taken into consideration in connection with that which I am about to charge before argument. What I now say to you, in charging you before argument, I want you to distinctly understand is not conclusive; that I might say something more on these propositions, in addition thereto, that may considerably modify them and put them in a new light.”

After the court had given these special charges he continued as follows:

í£Now, as I have said before, in what I might have to say in the general charge after argument, some considerable modification of this, or possibly additions thereto, will necessarily creep in.”

We hold that it was the duty of the court to give or refuse these propositions of law as they were presented to it, without any change or modification, and without any reference to what the court might or might not do in its general charge with reference to modifying the same. It was error on the part of the court to comment upon these propositions of law, but as the error was against the prevailing party, it of course was not prejudicial.

Coming now to the fifth error complained of: Did the court err in refusing to give special request No. 1, before argument, as requested by the defendants below?

From an examination of this request, in our opinion the evidence sought by it to be excluded from the jury was irrelevant and wholly immaterial to a proper determination of the issues raised by the pleadings. But how could the plaintiff in error be prejudiced by the trial court permitting testimony to go to the jury concerning an issue or issues that were not in the case V

Sixth ground of alleged error: Did the court err in its general charge to the jury? We have examined the general charge of the court with much care, and while we find some technical errors, yet upon the whole it fully covers the propositions of law applicable to the facts as shown by the evidence, and we find no error therein prejudicial to the rights of the plaintiff in error.

Seventh ground of alleged error: Was the verdict of the jury against the manifest weight of the evidence, and did the court err prejudicially against the rights of the plaintiffs in error in overruling the motion for a new trial and entering a judgment on the verdict?

The bill of exceptions in this ease contains about six hundred pages of typewritten matter, and we have spared neither time nor labor in reading the testimony of the witnesses and in an examination of the exhibits attached thereto, and we have done this in order to satisfy ourselves as to whether or not the judgment is supported by sufficient evidence, and we do not hesitate to say that we are fully satisfied that it is; and we therefore find that the judgment is not against the manifest weight of the evidence.

From an examination of the whole record we find therein no error prejudicial to the rights of the plaintiffs in error, and further finding that substantial justice has been done to all parties to this suit, we hold that the judgment below should be affirmed.

Judgment affirmed.

Shields, J., and Powell, J., concur.


author: Voorhees, J.

text:
    CONSTRUCTION OF THE OHIO STATUTE HAVING REFERENCE TO RAILWAY RELIEF ASSOCIATIONS.
    Circuit Court of Holmes County.
    The State of Ohio, on Relation of D. T. Simpson, Prosecuting Attorney in and por Holmes County, Ohio, v. The Pennsylvania Company and The Cleveland, Akron & Columbus Railway Company.

    Decided, April Term, 1911.

      Railways—Voluntary Relief Associations Under Control of the State Statute Only on Roads Doing an Intrastate Business—Section 9010, General Code.

    Section 9010, General Code, prohibiting railway companies from maintaining relief associations for the benefit of employees wherein it is stipulated that those who become members waive all right against the railway company to damages on account of personal injuries or death, should be so construed as to bring it into harmony with both the state and federal constitutions, and so construed it applies only to such lines of road as are not engaged in interstate commerce.

      D. T. Simpson and Franh S. Monneti, for plaintiff.

      George W. Sharp and Judge George F. Arrel, contra.

       Affirmed by the Supreme Court without opinion, State, ex rel Simpson, v. Pennsylvania Co. et al, 88 Ohio State, 540.

   Voorhees, J.

This case is submitted on a general demurrer to each defense contained in the separate answer of the Pennsylvania Company and the Cleveland, Akron & Columbus Railway Company to the amended ■ petition.

At a former term, this court held that the amended petition .was sufficient to resist a demurrer, in that it averred that the defendants were' maintaining a certain relief association, the rules and by-laws of which shall require of any person or employee becoming a member thereof to enter into a contract, agreement or stipulation, directly or indirectly, whereby such person or employee shall stipulate to surrender or waive any right or claim, etc:, contrary to the provisions of 'Section 3270, Revised Statutes, as amended, Volume 99 Ohio Laws, pages 71 and 72 (General Code, Section 9010).

The first defense of the Pennsylvania Company to this amended petition, while it admits that it is assisting in maintaining a voluntary relief association, contains a general denial of all the 'averments and allegations of the amended petition in respect to the character of the relief association it is maintaining and assisting in maintaining. So that the demurrer to this defense ‘must be overruled.

The second defense sets forth in detail the incorporation of the defendant, the Pennsylvania Company, under and by virtue of the laws of the state of Pennsylvania; that it is operating railroads as a common carrier through the states of Pennsylvania, Ohio, Indiana, and other states; also, that the Pennsylvania Lines west of Pittsburgh consist of certain companies who have become associated and are engaged as common carriers since the year 1885, operating lines of railroads of the constituent companies; that it maintains and has assisted in maintaining a voluntary relief association made up of employees of the constituent companies, and sets forth in terms the rules and regulations of the voluntary relief department with' respect to waiving any right of damage in the event of injury or death.

It then further avers that all its employees, including all members of the relief association so maintained by it, are employed with reference to conducting and forwarding interstate commerce and business and traffic, and such members are residents of the several states of Pennsylvania, Ohio, Indiana, Illinois, West Virginia and Kentucky. And that the amendment to Section 3270, Revised Statutes (Section 9010, General Code), is in violation of Article I, Section 8, of the Constitution of the United States.

It will be seen by this averment of the answer of the defendant which is admitted by the demurrer, that the employees and members of the relief association so maintained by it were and are engaged in hauling trains and cars in interstate commerce on the associate railroads constituting the constituent companies of the Pennsylvania Lines west of Pittsburgh and their employees are engaged in interstate commerce business.

The Congress of the United States, under the authority of the Constitution to regulate commerce between the states, has undertaken to legislate in respect to this identical matter, and by Section 5 of the act of Congress of April 22, 1908, has defined the rights and liabilities of common carriers by railroads to certain of their employees as follows:

‘ ‘ Section Five. That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void; provided, that in any action brought against any such common carrier under, or by virtue of any of the provisions of this act, such common carrier may set oft; therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person' entitled thereto on account of the injury or death for which said action was brought.”

In the case of Howard v. Railroad Company, 207 U. S., 463, tbe court, in speaking of another act then under review, uses the following language:

“The act, then, being addressed to all common carriers engaged in interstate commerce, and imposing a liability upon them in favor of any of their employees, without qualification or restriction as to the business in which the carriers or their employees may be engaged at the time of the injury, of necessity includes subjects wholly outside ®f the power of Congress to regulate commerce.”

Now the amendment to Section 3270, as passed April 7th, 1908 (Section 9010, General Code), is general in its terms:

“No railroad company now existing, or hereafter created, urn -der and by virtue of the laws of this state, or of any other state or country, and having and operating a line of railway in this state, may establish or maintain or assist in establishing or maintaining any relief association or society,” etc.

'The presumption obtains that the Legislature of the state in the enactment of this amendment intended to enact a law which was not in violation either of the Constitution of the United States or of the state of Ohio.

If a statute is capable of such construction as will be constitutional, then it is the duty of the court to give it such construction in preference to a construction that would bring it within the prohibition of the Constitution. Construing then, this amendment, passed April 7th, 1908, as being constitutional, it would include only such lines of railroad as were not engaged in interstate commerce, and this answer averring that the defendant companies, and each of them, were and are engaged in interstate commerce, and that their employees and members of the voluntary relief association which they are maintaining and assisting in maintaining are engaged in interstate commerce and traffic, the averments contained in the second defense of the defendant’s answer constitute a good defense to the amended petition. And, therefore, we hold that the demurrer to this second defense must be overruled.

The demurrer to. the third defense of the answer of the Pennsylvania Company is sustained.

What has been said in respect to the several defenses of the Pennsylvania Company need not be repeated in respect to the answer of the Cleveland, Akron & Columbus Railway Company. The demurrer to the first defense is overruled. The demurrer to the second defense is overruled. The demurrer to the third defense is sustained. Exceptions on behalf of both parties herein may be entered and the plaintiff may be given sixty days to plead further herein if desired.

Shields, J., and Powell, J., concur.