text:
    WOMAN STRUCKIBY AUTOMOBILE AS SHE WAS LEAVING STREET CAR.
    Circuit Court of Hamilton County.
    Samuel Klein v. Daniel Goldstein.

    Decided, March 9, 1912.

      Negligence — On the Part of Automobile Driver or Pedestrian — Woman Pmsing Around Rear End of Oar from Which She had Alighted — • Struclc by an Automobile Running on Left Side of Street — Charge of Court as to Degree of Care Required of Each.

    1. In an action for damages from being struck by an automobile, the use in the general charge of the phrase “in the place” in which the automobile was running will not be construed on review as implying that the-machine was unlawfully in that place, but as directing the attention of the jury to one of the conditions which go to indicate the degree of care which should have been used by the chauffeur on that particular occasion.
    2. It is not error in such a case to refuse to give a special charge to the ’ effect that the injured woman was bound to look to the south for automobiles which might pass to the left of the car from which she was alighting, as well as to the north for vehicles which under the rules of tlie road ordinarily pass on that side of a thoroughfare.

      Worthington & Strong and Frank Seinheimer, for the plaintiff in error.

      Henry Bentley and Horace A. Reeve, for Goldstein.

      Jones, J.; Smith, P. J., and Swing, J., concur.

      Affirming Goldstein v. Klein, 11 N.P.(N.S.), 1.

   The issue joined by the pleadings and submitted to- the jury w-as whether the negligence of the chauffeur or of Mrs. Goldstein caused her injuries. There is no allegation of contributory negligence in the answer. The verdict was not against the weight of the evidence; the question was one of fact.for the jury, and consequently there was no error in failing to instruct a verdict for defendant. Having so determined, three grounds urged by plaintiff in error remain for our consideration: Did the trial court err—

First. In refusing to give the eight special charges or any of them requested by defendant ?

Second. In the general charge ?

Third. In refusing to submit the interrogatories, requested by defendant, to the jury ?

. In our opinion the first special charge was properly refused, for the reason that there was no evidence to support the last statement, namely: “He was not violating any law or the city ordinance in so doing.”

We do not know whether there is any city ordinance forbidding his driving the automobile as he did. . No one testified that there was no such ordinance. For aught that appears in the evidence, there may be an ordinance requiring him to stay to the-fight of the center line of the street. The charge was objectionable, too, for the reason that plaintiff does not allege that the chauffeur was negligent i-n regard to the place where he was driving, but only as to his manner of driving. The question of the legality of the place where he drove was injected into the case by the effort of defendant to show that by ordinance he was required to drive where he did.

The second special charge in question was refused, and properly so. An ordinance of the city was introduced in evidence by defendant in an attempt to show, and from whieh he argued that i-n passing to the left of the street car the chauffeur was only complying with the requirements of said ordinance. We do not agree with such cpnstruction of the ordinance. In our opinion it does not mean that automobiles must pass street cars to their left, but only applies to such vehicles the drivers of which have a choice as to where to drive and whose driving can and should exercise said choice with a mutual and reciprocal regard for the safety and convenience of all and with a desire to carry out the spirit and letter of the regulation therein contained. Such a choice motormen do not have. All that can be asked of them in this respect is to keep their ears on the tracks. To give the second charge after -the ordinance had been read to the jury would have been in effect to charge that the.driver of the automobile did what he was positively required by law to do in turning to the left. In this view of the matter the second charge was erroneous, especially in the absence of any reference to the degree of care required of each party under all the circumstances. .

The third special charge would require the court to say to the jury that a pedestrian in crossing a street should look north and south, or rather, that in this particular case Mrs. Gold-stein should look south as well as north. The jury should always be left free to determine from their experience and judgment whether the person injured did what could reasonably be expected of a person of average prudence under similiar surroundings and conditions. It is more than probable that, exercising such judgment, the jury in this case thought Mrs. Goldstein did the natural and proper thing in first looking to the north.

The law applicable to this special charge is well stated in the case of L. S. & M. S. Ry. v. Fisher, 4 O.C. (N.S.), 593, affirmed in 51 O. S., 574. The court there said:

“We think it can not be said as an absolute rule of law that' the plaintiff must look ahead under all circumstances. It is his duty to be cautious or careful, but whether he must look ahead or behind or to one side or down or up depends upon the particular situation in which he may be placed at the time.”

In special charge No. 4 the court was asked to instruct the jury that ‘ ‘ she was bound to look south for vehicles approaching from that direction as well as to the north. ’ ’ She was required to exercise her senses in order to protect herself from injury, and it was not for the court to say that she was under the duty to look in one direction as well as another, and hence this charge is subject to the same objection as No. 3.

Special charges Nos. 5 and 6 are objectionable for the same reason, namely, that they place emphasis upon the duty of Mrs. Goldstein to look in a particular direction.

Special charge No. 7 is erroneous, as we think the question for determination was one of fact and not of law.

Special charge No. 8 was properly excluded, for the reasons assigned with reference to special charges Nos. 1 and 2.

We come now to the second question, namely, was there error in the general charge ? The main contention of plaintiff in error’s counsel in this respect is that the court erred in referring in his general charge to the "place” in which the defendant’s chauffeur was driving his machine'. There is nothing in the language used by the court throughout the trial which would indicate that the trial court entertained the opinion that the ordinance introduced in evidence did not authorize the chauffeur to drive his car to the left of the street ear. We think, therefore, that it is putting a forced construction -upon the language of the court to say a reference to "in the place” where the automobile was going implied that it was unlawfully in such place. We not only do not think the language will bear any such construction, but believe that an omission to use that or similar language would have been error. The degree of care required of a person is always controlled by and depends upon the place, circumstances, conditions and surroundings. -There is no arbitrary or fixed rule. But whether a person has exercised such care as ordinary prudence requires is always a question to be determined by the jury. We find no error in the insertion of this phrase in the general charge nor do we find any other error- therein.

As to the interrogatories submitted by counsel for the defendant below, we think the court exercised a proper discretion in refusing to propound them to the jury.

Interrogatory No. 2 is doubtless irrelevant and improper, because it is addressed to the doctrine of the "last clear chance.” There was no such issue in this case.

Interrogatories Nos. 3, 4 and 5 again display the manifest intent of defendant’s counsel to place too great an emphasis upon the duty of the plaintiff’s wife to look to the south. Any answers to these questions could not have in any manner affected tbe verdict rendered by the jury, and hence the refusal to submit such interrogatories could not have been prejudicial. It does not appear that the interrogatories were requested separately, and hence they must all stand or fall together.

We have not discovered, in an examination of the record, any error, and the judgment below will, therefore, be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    IMMUNITY IN THE SALE OF PLUMAGE OF THE WHITE HERON.
    Circuit Court of Cuyahoga County.
    The State of Ohio v. A. M. Solomon, and The State of Ohio v. The Bailey Company.
    Decided, January 12, 1912.

      Game Birds — Purpose of the Statute to Protect Native Birds and Migratory Birds Finding a Home in the State during Certain Seasons— ■ White Heron Not of Either CXasss.

    The white heron is not included within the protection of Section 1412, General Code, and a criminal prosecution does not lie against one offering the plumage of this bird for sale.

      T. 8. Hogan and Mor gam .<& Litzler, for plaintiff in error.

      Hidy, Klein c& Harris, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
    Error to the court of common pleas.
   These two cases are exactly alike so far as the law points are involved. Each of the defendants was prosecuted for having in possession and offering for sale the plume of a bird known as the white heron. Speaking in the singular, as though there was but one case, the facts are, that the defendant had the plume in possession and exposed for sale at the time charged. The prosecution was before a justice of the peace; the defendant was found guilty and sentenced. On error prosecuted in the common pleas court, this judgment was reversed and the defendant discharged.

We are called upon, by proper proceedings in error, to determine ¿whether or not there was error in this judgment of reversal.

Several grounds of errors on the part of the justice were claimed, any one of which justified the judgment of reversal. The offense, if there was an offense, was because of a violation of Section 1409 of the General Code. Among the grounds urged was that the prohibition contained in this section did not include the white heron; another was that if it did include the white heron, the act was unconstitutional, it being the taking of private property without due process of law. •

This last proposition we do not feel called upon to discuss, other than to say that we are not impressed with the views expressed by the court of common pleas in its opinion in the ease. However, as we view the ease, it is not necessary that this question be passed upon.

A similar prosecution was instituted in Stark county, in 1908, against one Abt [9 N.P.(N.S.), 311]. The result in that case was a conviction before the justice of the peace, a reversal of that conviction by the court of common pleas; that judgment of reversal was affirmed by the circuit court, which last named judgment was affirmed by the Supreme Court. See 83 Ohio State, 451. No opinion is reported, so that it may have been for the reasons given by the court of common pleas or for those given in the circuit court, or both.

The opinion of the common pleas court reversing the judgment of the justice is reported in 9 N.P.(N.S.), at page 311. The opinion of Judge Harter, of the common pleas court, in this case is based upon the proposition that the white heron is or may be a game bird, and that there is no protection for such birds in the statute. This reason does not now exist, because of General Code, Section 1412, which gives an enumeration of birds, does not include the white heron, and the section closes with the words: "The birds named in this section shall be known and ’classed as game birds, in contradistinction to all other birds.”

However, there still remains the question .of whether the white heron is included within the prohibition of Section 1409.

In that section a large number of kinds of birds, forty-two in all, are enumerated as those whose plumage, etc., shall not be exposed for sale, and the enumeration ends with the words: “or any wild bird other than a game bird.” It being so settled by statute that the white heron is not a game bird (Section 1412), we have the question of whether.these words include the white heron.

The evidence shows in this case exactly as it showed’ in the ease against Abt and is expressed in the language of the opinion announced in the circuit court in the Abt case. The following is a quotation from that opinion:

“It also fully appears from the evidence in this case that the snowy heron is not a native bird of Ohio; that it is a habitant of southern waters, and is never seen in a wild state in Ohio except very rarely. So that if it is found in the state at all it is only as a vagrant individual of a species, and is not a native bird. We think these statutes are designed to protect the native .birds and migratory birds that find a home in this state during certain seasons of the year, as well as other migratory birds that cross the state at regular intervals of each year; and not merely a transient, or vagrant individual of a class whose habits are not to migrate either to this state or across it.”

I have refreshed my recollection in reference to this case by talking with- the clerk of the court of Stark county since this ease was heard, and I find, what on the hearing I thought to be true, that the circuit court was composed of Judges Donahue, Taggart and myself. Judge Donahue, as is well known, is now a judge of the Supreme Court of this state; Judge Taggart was recently chief justice of the circuit courts, both of whom are well known and were recognized; at the time this opinion was announced, as among the ablest judges in the state. This opinion was concurred in by all of us who sat in the case, and my recollection is (however, of this I am' not certain) that the opinion was prepared by Judge Donahue. No court,, so., far as... we know, in the state of Ohio, has dissented from the proposition announced in this opinion since it was delivered; and, following that opinion, and for the reasons stated in that part of it which is hereinbefore quoted, the judgment of the court of common pleas in this case is affirmed.


text:
    ENFORCEMENT OF UNDERLYING MINERAL RIGHTS BY INJUNCTION.
    Circuit Court of Perry County.
    Chartiers Oil Company v. Peter Curtiss et al.
    Decided, November Term, 1911.

      'Mines and Mining — Rights of Surface and Sub-surface Owners — Implied Right of-Ingress and Egress in Prospecting for or Removing Underlying Minerals — Maintenance of Derricks and Machinery in Drilling for Oil — Privilege of Storage — Damages to the Surface from Such Operations.

    1. The estates represented by ownership of the surface and of underlying mineral rights are mutually dominant, and servient, and in a conveyance of the surface there is an implied reservation of right of access to the estate below, and this right may be enforced by injunction.
    2. The owner of underlying oil and gas rights is entitled, to the use of the surface for ingress and egress in drilling a reasonable number of wells and may maintain thereon derricks and other necessary machinery; but storage rights will be limited to such as are incidental to the immediate production and marketing of the oil, and the question of damage to the surface from such operations will be left open for future determination.

      D. N. Postlewaite, G. A. Donahue and Leo A. Weil, for plaintiff.

      Booth, Keating, Peters & Pomerene, contra.
    Powell, J.; Voorheis, J., and Shields, J., concur.
   On and prior to the 25th ‘day of August, 1888, the Columbus & Hocking Iron and Coal Company was the owner in fee simple of a tract of land in this county, known and described as out-lot number one (1) in the village of New Straitsville, Ohio, and containing between four and five acres of land. On that date the said the Columbus & Hocking Iron and Coal Company executed its deed of conveyance to Thomas Curtiss, conveying to him the surface of said premises. The description of the property conveyed, as contained in the granting clause of said deed, is as follows : .

“All of the surface except the timber on the tract of land described as follows: out-lot No. one (1) of the village of New Straitsville, Ohio, as the sam.e is known and designated on the recorded plat of said • village, recorded in the recorder’s office of Perry county, Ohio.”

Afterwards the rights of Thomas Curtiss in said lands were conveyed by him to the defendant, Peter Curtiss, who was the owner thereof at the commencement of this action. A few days after the petition had been filed, the defendant, N. L. C. 'Kachelmacher, purchased the interest of the defendant, Peter Curtiss, in said lands and on his motion was made a party defendant to this action.

The plaintiff, Chartiers Oil Company, is the owner by proper conveyance from the Columbus & Hocking Coal and Iron Company, of the oil and gas underlying said tract, and brought this action for a mandatory injunction to compel the defendants to permit it to enter upon the surface of said out-lot No. 1 to explore for oil and gas that may exist under the surface, and to give it, the said plaintiff, the right to do whatever may be necessary to produce and market any oil and gas that may be found to underlie said lands:

It is the settled law of Ohio that different estates may exist in the same real 'estate. The surface may belong to one owner, and the minerals underlying it may belong to other and different owners. Burgner v. Humphrey, 41 O. S., 340; Gill v. Fletcher, 74 O. S., 295: 20 Am. & Eng. Ency. Law (2d Ed.), 771-3, and authorities there cited.

The question here' presented is whether or not the owner of the surface only can be required to permit access to such’ surface by the owner of a lower stratum, for the purpose of producing and marketing "the minerals that may be found in'such lower stratum. --

There is no reservation in the deed or grant to Thomas Curtiss of any right to enter upon the surface and explore for gas or oil, nor of access through the surface to any minerals that may lie below. In such circumstances, can the owner of the surface be compelled by a court of equity to permit the owner or owners of the underlying strata to penetrate or drill through the surface for the purpose of developing or mining the minerals that may be found to exist in .such underlying strata ?

It is settled in Ohio that the surface of lands lying above a stratum that can be mined out, is entitled to subjacent support. That is, the coal or other mineral underlying lands can not be mined out and removed without leaving sufficient support below to prevent the caving in or subsidence of the upper stratum. This right of support is a property right belonging to the surface and passes by a conveyance of such surface without an express grant to that effect. It is not an easement merely but a property right attaching to such surface, without either a grant or a reservation to that effect, and the same is a servitude on the lower estate, which can be enforced by the surface owner. This being true, does not the upper stratum or surface owe a reciprocal duty or servitude- of access to the lower strata ? The doctrine of mining rights would imply as much, and our own Supreme Court has granted similar relief to that sought in this action, where the subject -of the controversy was. gypsum or plaster instead of oil or gas, and where there was no reservation of a right of access except such as might be implied by a mining right. Gill v. Fletcher, 74 Ohio St., 295.

But it is said mining rights are peculiar and exist by reason of necessity. What greater necessity can exist in the case of a mine, than exists in a ease like this ? There is- no other way known by which the oil or gas under the earth’s surface can be reached and produced for use or market except by drilling directly down through ;the earth’s surface into the oil and gas bearing stratum. It is the opinion of the court that a right of access to the lower strata of the earth’s crust is a property right attaching to such strata and passes by a conveyance of the same without an express grant to that effect, and is reserved by implication in a conversance of the upper strata without an express reservation to that effect. It is not an easement merely but a property right in the estate itself, and is a reciprocal servitude to the right of support that attaches to the surface. It is analalagous in principle to the way by necessity.np.jjhe earth’s surface, and to the doctrine of mining rights above referred to. In fact oil and gas in place are held to be mineral, so that mining rights might well attach to them for the benefit of the owner of the same. These rights of necessity are, however, subject to such various modifications as may be necessary for the complete enjoyment of the different estates conveyed. The law implies a single way of necessity upon the earth’s surface, where such necessity exists, yet a right of access to underlying minerals would only be restricted in number to so many as would be necessary for a reasonable development of the territory where such right of access exists. The rule of necessity for a reasonable development of the oil and gas territory is the rule that would prevail;

‘ ‘ The owner of the surface can not bore where he pleases or. as often as he pleases. The right of designating the reasonable location of the one right of way by necessity, which the law recognizes, has always been held to be in the owner of the land. If he refuses to designate such way, then the owner of the right of way can designate it, or can apply to the court to have it located.” Chartiers Block Coal Co. v. Mellon, 152 Pa. St., 286.

The language quoted applies with equal force to the owner of a lower stratum who has a right of access through the surface, with the additional right to have more than one way designated by the court where the same may be necessary for the reasonable development and production of the mineral owned.

These views are supported by numerous authorities, a few of •which are the following: Chartiers Block Coal Co. v. Mellon, 152 Pa. St., 286; Marvin v. Brewster Iron Min. Co., 55 N. Y., 538; Henry v. Lowe, 73 Mo., 96; Williams v. Gibson, 84 Ala., 228; Gill v. Fletcher, 74 O. S., 295; Kelly v. Ohio Oil Co., 57 O. S., 317.

The deed to Thomas Curtiss conveying' to him the surface of out-lot No. one (1), conveyed to him only so much of said land as cóuld be used for agricultural or residential purposes. Murray v. Allerd, 100 Tenn., 100; Stewart v. Chadwick, 8 Iowa, 463; 27 Cyc., 540; Lillibridge v. Coal Co., 143 Pa., 293; Williams v. South Penn. Oil Co., 52 W. Va., 121; Knight v. Ind. Coal & Iron Co., 47 Ind., 105.

.This conveyance was a severance of the title to said lands, the grantee, Thomas Curtiss, obtaining title to the surface or upper stratum, while the grantor, the Columbus & Hocking Coal and Iron Company, retained all the right, title and ownership of the residue of said tract, and being all of the underlying strata of the same. By other conveyances the plaintiff became and now is the owner of the underlying oil and gas. These various estates are mutually dominant and servient. The conveyance of the surface to Curtiss reserved to the grantor a right of access to the estate below by an implied reservation. A servitude of access to the lower estate passed with such grant. The conveyance by which plaintiff derived title to the oil .and gas carried with it by an implied grant, if not in express terms, a right of access to such oil and gas.

A servitude having been established to the lower estate, can the same be enforced by a mandatory injunction, as is sought to be done in this action? The Supreme Court has in several instances recognized the right and authority to enforce and regulate servitudes growing out of mining rights, to which the rights sought to be enforced in this action are analogous. Pomeroy v. Salt Co., 37 Ohio St., 520; Gill v. Fletcher, 74 Ohio St., 302. . :

It was said by Justice Williams of the Pennsylvania Supreme Court in a minority opinion, in a ease involving practically the same question sought to be determined in this action:

“We do not hesitate to enforce the servitude for support, whether subjacent or adjacent, or to regulate the extent and manner in which it shall be rendered and enjoyed. With equal propriety and with equal ease we may enforce the servitude for access and regulate the extent and manner in which it shall be rendered and enjoyed. The power of the chancellor would extend to all incidental subjects and enable him to impose terms as to the manner in which the owner of the lower estate should exercise his right of access, the precautions he' should employ, and the compensation he' should make for actual injury done.” Chartiers Block Coal Co. v. Mellon, 152 Pa. St., 286.

This seems to us to be a correct statement of the principle that is decisive of the question to be determined in this action. It follows that the plaintiff has the right to drill for oil and gas upon the lands of the defendants described in the petition, together with such right of ingress and egress upon the surface of said lands as may be necessary for that purpose, and that the court has power to enforce such right in the manner sought to be done in this action. It would also have the right to a reasonable use of the surface on which to place derricks and other ■necessary machinery for drilling its wells. It ought not, however, have a right of storage upon this tract, other than as may be incidental to the immediate production and marketing of oil, as it has other adjacent lands on which such right of storage exists. It ought also to be limited in the number of wells it should be allowed to drill on said lands. The evidence discloses that two wells are now being drilled in on the same, and it ought to be permitted to complete these wells, and if it should be necessary for the more complete development of said territory, it should have the right to drill still another well on said tract,' but not nearer than four hundred feet from the. north or west boundary lines of the same. The injunction allowed in the court of common pleas was properly allowed, and the motion to dissolve the same will be overruled, and such injunction will be continued in force subject to such modifications as we have indicated in this opinion. The question of damages to the surface will be left open for future determination or settlement. We think, however, that the plaintiff should pay the costs of this proceeding.

A decree may be drawn and entered in conformity with the views, expressed in this opinion.


text:
    ACCORD AND PROMISE TO PERFORM AS A DEFENSE.
    Circuit Court of Cuyahoga County.
    The Newburg Brick & Clay Company v. Joseph Chojnicki.

    Decided, July 14, 1909.

      Evidence — Competency of, as to Executory Agreement to Settle — Evidence as to Previous Occurrences of the Character for which Damages are Sought.

    1. It is not error to exclude evidence as to an oral éxecutory agreement of settlement theretofore entered into between the parties.
    2. In an action for damages for injuries to plaintiff from being struck, while standing on his own premises, by a stone thrown by a blast in a neighboring quarry, evidence of previous instances of stones being thrown upon the land of the plaintiff is competent, where admitted for the single purpose of showing whence the stone came that struck plaintiff and the distance it might be thrown in that way.
    Henry, J.; Marvin, J., and Winch, J, concur.
    Error to the court of common pleas.

       Affirmed without opinion, Newburg Brick & Clay Co. v. Chojnicki, 83 Ohio State, 458.

   The defendant in error recovered a verdict and judgment of $250 in the court of common pleas, for personal injuries received by him in consequence of being struck by a piece of stone flying upon his own premises by a blast in the quarry of the plaintiff in error.

The first error assigned is upon the exclusion of evidence of an oral executory .agreement of settlement between the parties. This ruling was made upon the authority of Frost v. Jotinson, 8 Ohio, 393, wherein the first' paragraph of the syllabus is as follows :

“An accord with mutual promises to perform is not a good defense if there be no performance before action brought. A part performance is not sufficient to bar the pre-existing demand. ’ ’

It is -urged here, however, that while this doctrine, was true at common law of a technical accord without satisfaction, it is now no longer, under the reformed procedure, if it ever was true of an executory contract, in which the consideration on either side is the mutuality- of promises between the contracting parties. Upon the hearing we were impressed with this view, but upon careful examination of Frost v. Johnson, and of the only other reported case in which it has since -been cited by any reviewing court in this state, namely, Conard v. Bare, 8 C.C.(N.S.), 118, we conclude that the trial court was right.

The second assignment of error is upon the admission of testimony of previous instances of stone thrown upon the land of plaintiff below by blasts from said quarry. The bill of exceptions discloses that one of the contentions made by the defendant below was, that stones could not be so thrown, and the evidence was admitted for the purpose of showing whence the stone came that struck the plaintiff, and how far such stones might be thrown. We hold that the evidence was admissible for these purposes merely.

The third and fourth assignments of error are respectively that the verdict is against the weight of the evidence and that it is excessive, but the evidence, as we have examined it, does not warrant us in interfering with the jury’s findings.

The judgment is therefore affirmed.


author: Dustin, J.

text:
    LIABILITY OF SURETIES ON BOND OF. STATE TREASURER..
    Circuit Court of Franklin County.
    The State of Ohio v. Herbert McKinnon et al.

    Decided, January 16, 1912.

      Sureties — Liability of, on the Bond of a State Treasurer — Where Public Funds were Unlawfully Loaned and Interest Accepted Thereon as a Gratuity — Illegality of Loans Immaterial■ — Interest Follows Principal and-Bond for Faithful Performance Covers Both — Defense of Settlement with State Auditor Not Sufficient.

    1. Where a treasurer of state loans and deposits the public funds in his custody and receives and converts interest thereon during his official term, a liability for the interest so ■ received is thereby created, enforceable against the obligors upon the official bond.
    2. The liability so arising is within the purview of the official bond, although the loans and deposits from which the' interest sprang were made in violation of a penal statute;

      3. The settlement with the auditor of state by the treasurer or his legal representative of the amount of the principal fund (not, however, including interest) and the receipt thereof by virtue of said settlement by the successor in the office of treasurer of state do not estop nor prevent the state from recovering the amount of interest received as aforesaid.
    • Timothy 8. Hogan, Attorney-General, H. J. Booth and B. W. McCoy, for the state.

      Cyrus Huling, A. T. Seymour and J. E. Todd, contra.
    Allread, J.; Ferneding, J., concurs; Dustin, J., dissents in a separate opinion.

       For opinions below see 9 N.P.(N.S.), 513, and 11 N.P.(N.S.), 165.

   The state brought an action against the administrator of the estate of the late William S. McKinnon and the sureties upon •his official bond as Treasurer of State to recover interest upon loans and deposits of the public funds alleged to have been received by McKinnon during his official term. Demurrers were presented- in the court of common pleas to the amended petition and overruled. The defendants, thereupon, answered.

The first -defense is in substance a denial of the making of loans and receipt of interest. The second defense sets forth as a bar to the action, a statement on behalf of the treasurer, settlement by the Auditor of State and acceptance thereof by his successor in the office of Treasurer of State.

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

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

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

The question so presented has been fully and ably argued by counsel.and all the reported cases, both in the state and- elsewhere, have been cited and discussed.

Upon full consideration, we are of opinion that the doctrine is settled' in this state by the ease of Eshelby v. Board of Education., 66 O. S., 71, that a public treasurer is a mere custodian of the public funds,- has no other right or title thereto, and can confer no right or title to others.

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

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

It has been applied and followed in the following eases:

Glenville v. Englehart, 19 C. C., 285; State, ex rel Rulison, v. Schott, 9 N. P. (N. S.), 522; State, ex rel, v. Banks, 7 N. P. (N. S.), 43; Nicholson v. Maile, 3 N. P. (N. S.), 513.

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

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

The chief contention of the learned counsel for defendants in this court is—

(1) That the liability for interest is not within the terms of the official bond; and

(2) That the interest arising out of illegal acts is not contemplated by the general terms of the bond and the statutes prescribing its conditions.

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

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

■ Section 182, Revised Statutes, provides that the bond shall be conditioned “for the faithful performance of the duties of his office as the same are prescribed by law.”

Among the duties so prescribed, the Treasurer of State, upon •expiration of his term, is required (Section 198, Revised Statutes) to make full settlement “of all moneys, property and effects belonging to * * * the state treasury, ’ ’ and is further required to “forthwith pay over to his successor or the person appointed to act as treasurer the several sums of money so certified, and also deliver to him allo the books, accounts, vouchers, official papers and correspondence, together with all other property, bonds, securities, claims, assets and effects belonging to the treasury.”

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

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

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

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

The case of State v. Pierson, 83 O. S., 241, is cited. That was a criminal ease and involved a construction of the statute making conversion of public moneys by the custodian embezzlement. The statute, it was held, did not contemplate interest, but only the original fund. The case does not pretend to settle the civil liability. The case of Eshelby v. Board of Education is cited, and its authority in civil cases is acknowledged.

Counsel for defendants cite Renfroe v. Colquitt, 74 Ga., 618, and Wilkesbarre v. Rockafeller, 171 Pa. St., 177, and the classification of authorities found in State v. McFetridge, 84 Wis., 473.

Both the Renfroe and Rockafeller cases are weakened as authority by dissents, and the Rockafeller ease is not parallel on the facts.

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

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

The case of State, ex rel, v. Griffith, 74 O. S., 80, is distinguishable. Griffith was clerk of the board of education, and by resolution of tbe board authorized to collect tuition dues. This be did and failed to account. It was held that tbe sureties upon bis official bond were not liable, because be was not charged by law with tbe receipt and custody of the funds, and that bis duties, for which bis bond w,as conditioned, could not be so enlarged by resolution or appointment of tbe board.

In the case under consideration McKinnon held and controlled tbe public funds under provision of law and in bis official capacity as state treasurer. While in tbe exercise of tbe control and custody of tbe public fund tbe treasurer illegally loaned them, yet tbe fund was still in bis custody and control by virtue of his office. See Drolesbaugh v. Hill, 64 O. S., 257.

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

In the case of City of Greenville v. Anderson, 58 O. S., 478, Williams, J., says:

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

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

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

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

In tbe discharge of this official duty, it is illogical and unreasonable to say that be may restore part and retain part, and claim fulfillment, and tbe discharge of bis bond.

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

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

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

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

Dustin, J.

(dissenting).

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

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

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

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

As the law stood .at the time Mr. McKinnon’s bond was signed, the sureties were, in my opinion, liable for losses only — not for profits. There could be no profits legitimately obtained. The funds referred to in the phraseology of the bond were the funds already in the treasury and such as might legitimately be placed there. As the Supreme Court significantly remarks in State v. Pierson, 83 O. S., 245, “In contemplation of the law-makers, there never could be any interest. ’ ’

And in State v. Newton, 26 O. S., 275, an indictment against a county auditor for the embezzlement of public money alleged to have come into his hands, the court says: “If it was there at all, it was there without legal authority,” and quashed the indictment.

The case of Eshlby v. Board of Education, 66 O. S., 71, is referred to as conclusive. But it does not strike me as anything more than a new application of the old principle referred to above, viz., that a trustee, even for the public, is liable for profits. The bondsmen were not sued nor are they referred to in the Eshelby case, and the question here presented was not made to nor considered by the court; nor is there any dictum in the opinion that could fairly be applied to their situation. The phrase “the increment follows the principal” refers to the only question in the case, viz., the liability of the official.

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


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    LIABILITY BETWEEN CONTRACTOR. AND SUB-CONTRACTOR FOR DEATH OF AN EMPLOYE.
    Circuit Court of Hamilton County.
    The James Griffith & Sons Company v. Floyd C. Williams, Administrator.
    Decided, March 23, 1912.

      Master and Servant — Employe Killed in Removing the "Wall of a Burned Building — Law of Independent Contractor.

    Where a principal contractor, who has been engaged to rebuild a structure destroyed by fire, relets to a sub-contractor the work of removing a portion of one of the walls left standing by the fire, and one of the men employed by said sub-contractor is knocked from the wall and killed by the fall of a derrick which had been insecurely placed by the sub-contractor, the principal contractor is not rendered liable for said death by reason of an exception to the law of independent contractor, there being no evidence to show that the wall was dangerous to the workmen as a result-of the fire or otherwise. ¡,

      E. S. Aston and Prescott Smith, for the Griffith Company.

      Littleford, James, Ballard, Frost <&■ Foster, for the administrator.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   The plaintiff in-error employed Isaac Bishop to remove a portion of a wall. The wall was left standing after a fire which destroyed the interior of the building.

Plaintiff in error is a firm doing a general contracting business and was under a general contract to re-build the structure. !

Defendant in error, as administrator of one Bauman, recovered a judgment below against plaintiff in error for damages; Bauman was employed by Bishop on said work and while engaged in tearing down the wall was killed by the collapse of the derrick, a portion of which in falling knocked him off the wall.

The derrick was the property of Bishop. Mr. Griffith testified that his firm retained no control over the manner in which the work was to be done. There was no effort made to contradict his evidence on this point. Defendant in. error contends not about the fact and conditions of the contract between Bishop and the Griffith Company, but about its legal effect. He claims that the work undertaken was necessarily dangerous and “intrinsically hazardous” and that, therefore, the Griffith Company could not shift or escape responsibility by employing Bishop to do it.

In other words, that this case by reason of the dangerous .nature of the work to be done furnishes one of the recognized exceptions of the law of “independent contractor.”

Upon this contention, plaintiff’s cause of action wholly rests and under our view of the case we have found it unnecessary to consider any other question.

The case of Covington & Cincinnati Bridge Co. v. Steinbrock. et al, 61 O. S., 215, is cited by defendant in error ,and relied upon as deciding that all fire walls are dangerous and that an owner or head-contractor can not escape liability for negligence in removing a fire wal-1 by contracting with another to do the work.

We do not think the case has this sweeping effect. The court on page 221 of the opinion thus describes the wall in that case:

“It was from the time of the fire a mere ruin, bulged out toward the east and manifestly dangerous to the public.”

The court decided that the owner was liable for damages to third persons from the falling of such wall through the negligence of the contractor and his employes.

If the injury had resulted in the case at bar from the falling of the wall, then only wbuld the condition of the wall have been a controlling consideration. It is only where the wall is a “mere ruin” .and “manifestly dangerous” that the owner can not shift responsibility for its falling from lack of ordinary care on the part of the contractor. This is what the Steinbrock case, supra, decides and is as far as it can be extended.

There is no evidence in this ease that the wall was “bulged” in or out, or was “manifestly dangerous.” On the contrary it was shown to be plumb. With the exception of a few feet on the top of the wall upon which Bauman was at work, it was to remain and to be used again. .The top had been ordered removed owing to the greater heat to which it had been exposed upon the theory that in the future disintegration might take place.

But we think these considerations have nothing to do with the question before us, and they are mentioned here only because counsel for defendant in error has so strongly urged his contention as to the applicability of the Steinbrock ease.

Even if the evidence had shown this wall to have been out of “plumb” and “manifestly dangerous,” we are of the opinion that the principal contractor would only be liable for damage directly resulting from the defective condition of the wall. The evidence shows that the injury to Bauman which caused his death was caused by the falling of the derrick which was placed on the work, owned and operated by Bishop. This derrick was not carefully or firmly secured. It was used for the purpose of hoisting the stones and removing them from this wall. Bauman was not killed because he was on the wall, but because, unfortunately, he happened to be in the course of the falling derrick. This derrick was merely an instrument used in removing the wall and it seems to the court that, if its collapse, through negligence of Bishop, could be charged to the owner of the property or head-contractor, an injury done by one of Bishop’s wagons engaged in hauling the stone away from the premises could be held, with as much reason and consistency, to be the act of the Griffith Company.

The ease of Jacobs v. Fuller & Hutsinpiller, 67 O. S., 70, cited by defendant in error, does not support his contention. It is distinguished by the fact that there the dangerous machine was the property of the owner, while in the case now under consideration the derrick was not.

The answer of defendant does not set up the defense that Bishop was an independent contractor. We are inclined to think that the defense is available under a general denial, but if there is doubt on that point, we think the question immaterial. It was' not raised in the argument of the ease. No objection was made to the evidence showing the contract to be an independent one. In fact, this evidence was brought out by plaintiff below in the examination of Mr. Griffith. The case was tried by plaintiff upon tbe theory, as now urged, that the “fire-wall” element in the contract determined its legal effect and the relation of the parties, notwithstanding its other terms, may have been such as would under other circumstances have created an independent contract.

We are of the opinion that the verdict below was not sustained by the evidence and was against the law, and that the motion at the close of the evidence by defendant for a verdict should have been sustained.

Judgment reversed and judgment in this court for plaintiff in error.


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    TRUSTS.
    Circuit Court of Ashtabula County.
    W. H. Stockton v. J. S. Matson et al.
    Decided, January Term, 1912.

      Express and Resulting Trusts — Agreement with Reference to the Purchase of Land and the Subsequent Conveyance of am Interest Therein — Agreement Disregarded by the Party Taking Title — Different Classes of Agreements with Reference to the Acquirement of Title Distinguished.

    S made a verbal agreement with M and wife that the latter parties should purchase a certain piece of real property with their own funds and take title in the name of the wife, and after such purchase and conveyance M and wife were to convey an undivided one-half interest in the property to S, he paying one-half the original purchase price. M and wife purchased the property with their own money — S paying no part of the purchase money — and took title in the name of the wife. On refusal of M and wife to convey to him, S brought suit to recover an undivided one-half interest in the property.

      Held: That no trust resulted from the transaction and that the verbal agreement could not be enforced.

      Hoyt, Munsell & Hall, for plaintiff in error.

      Perry & Hitchcock, contra.

      Norris, J.; Pollock, J., and Metcalfe, J., concur.
    Error to Ashtabula Common Pleas Court.
   The case of W. H. Stockton v. J. S. Matson, Grace Matson, his wife, and C. F. Gran, is a proceeding in error to reverse the judgment of the court of common pleas sustaining a demurrer to the amended petition of the plaintiff filed in that court.

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

The plaintiff alleges that the defendant, J. S. Matson, and Grace B. Matson, his wife, lived in Ashtabula, and that Gran is also a resident of that city; that prior to February, 1909, Gran had a land contract with one Edgar E. Scoville, of Cleveland, for what is called the Gran plat in Ashtabula, describing the land, and that the plaintiff and the Matsons, being friends, talked about a purchase of that plat of land, and there are severa,] pages containing statements with reference to various efforts and negotiations, with the purpose in view of acquiring this piece of land; that it could have been bought at one time for $5,100, and that this Gran owed some money on it to the plaintiff, and he used it in that way to purchase the property. But that fell through, and finally it developed, according to the history contained in the pleading, that it could be bought from Scoville for $3,500. ,

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

That thereaftér he demanded of Mrs. Masten that she carryout this "agreement, and make a contr act with him to convey one-half of this property to him; he demanded such a conveyance, but he failed to make her do so.

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

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

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

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

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

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

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

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

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

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

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

To the same effect is Burden v. Sheridan, 36 Iowa, 125. Just one paragraph from the syllabus:

“A resulting trust can not be sustained by parol evidence, where no part of the purchase monej’’ was paid by the person claimed to be the cestui que trust.”

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

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

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

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


text:
    LIABILITY FOR WRONGFUL DEATH UNDER THE MINERS’ CODE.
    Circuit Court of Jefferson County.
    Elizabeth Rankine, Administratrix of Henry Rankine, v. Pennsylvania & Ohio Coal Company.
    Decided, December Term, 1911.

      Mines and Mining — Construction of the Miners’ Code — With Reference to Actions for Wrongful Death of Employes — Sections 972 and 10770, et seq.

    Where the death of a person employed in a mine is occasioned by acts of negligence on the part of his employer which are not “willful,” hut are such as would have entitled the injured person to recover if he had lived, an action to recover damages for such wrongful death may be maintained by the administratrix under the provisions of Section 10770, et seq., General Code, as amended 101 O. L., 198.
    Metcalfe, J.; Norris, J., and Pollock, J., concur.
   This action was brought by Elizabeth Rankine, as administratrix of Henry Rankine, deceased, for the benefit of his widow and children to recover damages for the death of said Henry Rankine from injuries received in the defendant’s mine. Plaintiff recovered a judgment in the common pleas court. A motion for new trial was overruled and thereupon the defendant filed a motion in arrest of judgment and for judgment notwithstanding the verdict. These motions were both sustained and judgment entered for the defendant, and it is to reverse that judgment that error is prosecuted in this court.

The action having been brought by the administratrix for the benefit of the widow and children of the decedent the common pleas court rendered the judgment non otstante veredicto upon the theory that under the provision of Section 972, General Code, as amended 101 O. L., 52-86, the action could only be maintained by the widow and lineal heirs, and not' by the administratrix, and that for injuries occurring in a mine resulting in death to an employe said Section 972 is exclusive and furnishes the only remedy.. The petition in this case does not state any act of willful negligence, but does allege several negligent acts which would entitle the plaintiff to recover unless the right of the plaintiff to recover is limited by Section 972, General Code, to acts of willful negligence.

By the act of April 5, 1910, known as the “mining code,” Sections 878-898, General Code, inclusive, were amended and their provisions very much enlarged. Section 972 provides:

“In case of an injury to a person or property occasioned by a violation of any of the provisions of this act, or any willful failure to comply with any provision of this act by any owner, lessee dr agent of a mine, a right of action shall accrue to the person injured for any direct damage he may have sustained thereby. In case of loss of life by reason of such willful neglect or failure a right of action shall accrue to the widow and lineal heirs of.the person whose life hás been lost for like recovery of damages.”

The right to recover for a wrongful death is statutory. Did the Legislature intend by this section to limit the right to recover for the wrongful death of a person employed in a mine to cases where the negligence complained of was willful, and to limit the right to recover to the widow and lineal heirs in all cases? By Sections 10770, et seq., General Code, where the death of a person is caused by a wrongful act a recovery may be had in the name of the administrator for the benefit of the widow and children, or if there be no widow and.children then the father and mother, brothers and sisters, or the next of kin. This statute is general, and applies to all cases of wrongful death, and will apply to the case of a miner unless the language of 972 is so restricted as to limit all recoveries.for wrongful death in mines to the widow and lineal heirs, and to eases where the negligent acts causing death a.re willful.

The “miners code,” of which Section 972 is a part, is very comprehensive in its terms and deals not only with the rights, duties and liabilities of the mine owners and operators, and their employes toward each other, but it deals also with the obligations and duties of the owners of mines towards private citizens whose rights may be affected by the operation of mines, and with the rights and duties existing between the mine owners and the public generally. Any person injured in person or property by a violation of the provisions of the act, or by any willful failure to comply with any of its provisions, may recover damages. It is perfectly clear that the right of an injured person to recove'r is not limited to a willful failure to comply with the provisions of the act, but he may recover for any violation thereof by which he is injured. It hardly seems consistent with a just and reasonable interpretation of this act to hold that an employe in a mine may recover for an injury if he lives, if the injury be the re. suit of negligence which is not “willful” but such as would entitle him to recover under the common law, but if he loses his life no recovery can be had unless the negligent act which resulted in his death is “willful.” Can we say that the Legislature intended to take away from a class of persons coming under the' provisions of the miner’s code rights which are granted and secured to all other persons, and to make the right to recover in their case for wrongful death depend purely upon the ground of willfulness, and deprive them of the right to recover for all other acts of negligence for which all other classes of persons may recover. This certainly would be a discrimination against a class which we do not think the Legislature intended to make, and we ban not put such an interpretation upon the law unless its provisions plainly require it. That the mining code was intended to cover .all cases which might arise between miners and their employes, and to fix the basis of recovery where such employes were injured, whether death results from the injury or not, we do not doubt. Having been specifically enacted as a code of laws relating exclusively to the operation of mines, and defining as it does the rights, duties, and obligations, of the mine owners and employes toward each other, makes it clear enough that so far as it does specifically define those duties and obligations, and provides specific remedies for violation thereof the remedies provided must be followed.

Where death is caused by a willful failure to comply with the provisions of the act, it would seem that the right to recover is exclusive in the widow and lineal heirs. The provision is “ a right ■of action shall accrue to the widow and lineal heirs of the person whose life h'as been lost.” If the right of action “accrues” to the widow and lineal heirs, then it follows that the action must be in the name of the party in interest, that is, the widow and lineal heirs. A determination of this question is not necessary to a decision of the question before us, and speaking for myself alone I think it may be doubtful, in view of the provisions of the “Norris Act,” whether the willful clause is exclusive, but whether it is or not it does not follow that the widow and lineal heirs are the proper parties to sue and recover in case the negligent act or acts causing death are not willful but are such acts as would have entitled the party injured to recover if he had lived. Section 972, General Code, must be construed in connection with Section 10770, et seq., as amended, 101 Ohio Laws, 198. Section 972 contains no provision relative to the amount which may be recovered for a wrongful death in any case. This must be determined by the general provisions of Section 10772. The “Norris Act,” so-called, was passed at the same session of the General Assembly as the mining code, and Sections 10770, et seq., as amended are a part of that act. That act relates to all classes of employes, and by its express terms it included all actions for wrongful death. The provisions relating to superior servants, fellow-servants, assumed risk, contributory negligence, etc., apply as well to miners as to any other class of employes. Original Section 10770, which created a remedy in case of wrongful death, was repealed and re-enacted as part of the Norris act without change except that the words “in every such case’’ were omitted. The omitted words served no purpose in the statute unless it was to encumber it' with superfluous language, and their omission does not change the meaning of the section in the least. The reenactment of Section 10770 as part of the Norris act is significant, and would seem to indicate an. intention on the part of the Legislature that every action for wrongful death should be governed by its provisions. Certainly all such actions are governed by its provisions unless they are clearly excepted from its operation by some other law, and the provisions of that section would govern in this case unless they are excepted therefrom by the provision of Section 972.

We have not concerned ourselves with the meaning of the word “willful” as used in Section 972. We see no occasion for extending its application to all cases of omission to perform a duty, but take it in its ordinary meaning as indicating a purposeful omission to • comply with some provision of the statute. When such is the case and death results the right of action accrues to the widow and lineal heirs. We think, however, that this is not the case where death results from an act of negligence which is not willful. In such case the action should be maintained by the administrator under the provisions of Section 10770, et seq., as in other cases.


text:
    COMPARATIVE NEGLIGENCE UNDER. THE RECENT OHIO ACT.
    Circuit Court of Lucas County.
    Standard Steel Tube Co. v. Walter Prusakicueicz.
    Decided, November 25, 1911.

      Master and Servant — Construction of 101 O. L., 197 — Relating to Comparative Negligence Between Employers and Employes — Recovery Not Defeated by Contributory Negligence of Employe where Slight as Compared with Negligence of Employer.

    1. By tbe provisions of Section 6245-1, General Code, as enacted in 101 O. L., 197, tbe doctrine of comparative negligence is introduced into tbe law of Obio in actions between employe and employer.
    2. Tbe effect of that section is to enlarge tbe right of action by an employe so as to include cases where be may have been guilty of contributory negligence, provided his contributory negligence is slight as compared with that of tbe employer.

      Ralph S. Holbrook and C. R. Banker, for plaintiff in error.

      Stephen Brophy, contra.
    Bíchards, J.; Wildman, J., and Kinkade, J., concur.
   In this action Walter Prusakicueicz, commonly called for the sake of euphony perhaps, Walter Brasa, recovered a verdict and judgment in the court of common pleas in the sum of $2,900 for personal injuries claimed to have been received through negligence of the Standard Steel Tube Company. The injury occurred upon July 23, 1910, while the plaintiff was in the employment of said company and engaged in the operation of a certain punch press. This press was connected with power and was operated by an employe by placing his foot on the treadle which causes the plunger to descend and punch holes in or cut out pieces of sheet méta1.

It was contended by the plaintiff that this machine was out of order and so defective that the plunger would drop without the treadle being .pressed and as a result of such dropping the plaintiff whose left hand was inserted for the purpose of removing a piece of sheet metal, was caught by the plunger and the fingers of that hand were cut off by the plunger descending.

The plaintiff claims that he was inexperienced in this kind of machinery and had only been employed upon the machine for a few hours and that the defendant failed to give him any instructions or warn him of the dangers. It appears from the evidence that the plaintiff had reported the fact to the foreman that the machine was out of order and was not working properly and that the foreman had attempted to repair the same and reported to plaintiff that it had been repaired. The defendant in its answer dpnies all negligence upon its part and asserts that the plaintiff himself was guilty of negligence contributing directly to his own injury. These allegations are denied by the reply. The proceeding was brought into this court by a petition in error and a bill of exceptions which contains all of the evidence.

Numerous errors are assigned but all of them which appear to be of importance involve the application to this case of the statute found in 101 O. L., 195, and following, and especially of General Code, 6245-1, as amended in said act and found on page 197 of said volume. The contention as made by counsel for the defendant company would deprive that section of any value to the employe .in cases of this kind. The manifest purpose of the General Assembly in passing this act was to enlarge the right of recovery by an employe against an employer in an action for personal injury caused by negligence and to introduce into the law of Ohio to a limited extent and in a qualified way the doctrine of comparative negligence. ' It is an attempt to remedy, in so far as employes and employers are concerned, the condition not infrequently experienced by courts in the trial 'of personal injury cases where the plaintiff fails because of his own negligence directly or proximately contributing to his injury, although the evidence may show the defendant to have been guilty of a far greater degree of negligence.

This case casts upon the court the duty of construing General Codé, 6245-1, already cited and that duty must be undertaken in the light of the legislative purpose just mentioned. So far as this court is aware, no reported decision has placed a construction upon that section. The section, so far as necessary to be quoted, reads as follows:

‘ ‘ That in all such actions hereafter brought, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence is slight and the negligence of the employer is gross in comparison. But the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe.”

Counsel for the defendant have insisted with much ability that even though the object of the Legislature may have been to accomplish the' purpose indicated by the court, that the language used in the section quoted will not permit that construction. It is urged that the section does not say that in all cases contributory negligence shall not be a bar, and that it only provides that contributory negligence of the employe is slight and the negligence of the employer gross in comparison. Counsel argue therefore that in all other cases contributory negligence shall be a bar. Counsel further contend that by the language found in the act, the negligence of the plaintiff is not placed in comparison with that of the defendant. The construction contended for is reached by a too literal and too rigid interpretation of the words used and by overriding the manifest legislative purpose. If this be the interpretation of the section, then it has added nothing to the right of an employe in a personal injury case. Under the law as it has heretofore existed, if a plaintiff’s only delinquency is that he is guilty of slight negligence, he is not deprived thereby of the right to recover. Such has always been the law of Ohio 'and the principle is well enunciated in the case of Schweinfurth v. Railway, 60 Ohio St., 215, 220, and in Wellston Coal Co. v. Smith, 65 Ohio St., 70, 80. As we construe this statute the negligence, of the plaintiff and the negligence of the defendant are to be compared each with the other, and upon such comparison, if it shall appear that the negligence of the plaintiff is slight as compared with that of the defendant, and that the negligence of the defendant is gross as compared with that of the plaintiff, then the plaintiff is entitled to recovery if the other elements entitling him so to do, are present. The words “slight” and “gross” are used aS relative expressions. No fixed absolute degree of care is mentioned in tbe statute. Tbe provision is to be construed as if it read, “The fact that the employe may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence is slight and the negligence of the employer is gross in comparison each with the other. ’ ’

We think it perfectly clear that the General Assembly in this enactment used the words “contributory negligence” as meaning precisely the same as a failure to exercise ordinary care. It will be noted that no comma is found in the act after the word “slight” and this fact confirms the view which we have adopted. Again, if the construction contended for by counsel for .the defendant company should be adopted, it would- result that the statute enacted for the purpose of enlarging the right of recovery of an employe woiiLd actually operate to his prejudice, for it would not allow a recovery in any case where the employe was barred under the former law, and then in cases where he did recover, the amount of his recovery would by the language of the act, be diminished in proportion to the negligence attributable to him.

Counsel for the defendant company places much reliance upon numerous decisions of the courts of Illinois. We have examined those cases with care and many of them bear out the contention of counsel that a plaintiff can never recover in a case of this kind unless he has himself 'been in the exercise of ordinary care. The courts in that state for many years undertook to apply the requirement to the plaintiff that in order to recover he must have been exercising ordinary care, in connection with the doctrine of comparative negligence, but the later oases in Illinois repudiated the whole doctrine as construed and applied by their courts. We are not able to obtain much light in the interpretation and construction of this statute from the decisions of that state.

We have already stated that we are not aware of any reported case construing the section involved in this ease, but a parallel statute may be found in General Code, 9018. The material parts of that section provide that the fact that the employe was guilty of contributory negligence shall not bar a recovery when such negligence was slight and that of the employer' “greater” in comparison.

In all material respects, so far as the question now under consideration is concerned, the two acts are entirely similar. This last section has been construed by the Circuit Court of Appeals of the Sixth Circuit, Erie Ry. v. White, 187 Fed. Rep., 556. In the course of the opinion, the court say:

‘ ‘ No reason is assigned, and we observe none, why this statute does not in the cases to which it refers abolish entirely the defense of assumption of risk, and abolish also the defense of contributory negligence as an absolute and invariable defense in bar substituting therefor the rule of comparative negligence. ’ ’

It remains to apply this principle to the determination of the legal question raised in the case at bar. The defendant company asked the court to give to the jury in charge various instructions, all of which raise substantially the same question. I will quote No. 5 as asked to be given which will answer as a sample of the others:

‘ ‘ If the jury find from the evidence that the plaintiff .and defendant were both negligent, and that the negligence of both directly contributed to cause the injury complained of in plaintiff’s petition, then your verdict should be for the defendant. ’ ’

Manifestly the charge requested is at variance with the provisions of the statute under consideration; and the same applies to the other, requests asked for by the defendant to be given to the jury. The instruction quoted could not be given to the jury in a case of this kind without being in some way qualified so as to indicate in accordance with the language of the statute, that the rule was not applicable if the jury should find that the negli.gence of the employe was slight and the negligence of the employer gross in comparison with each other.

We find no error in the case to the prejudice of the plaintiff in error except that the plaintiff below was allowed to. recover for certain wages which he lost during his minority by reason'of this injury, he being slightly under twenty-one years of age at the time <3f his injury. We find, however, that his counsel offered to remit from the judgment the amount of such wages, and the judgment of the court of common pleas will be modified to that extent and as so modified will be affirmed.


author: Per Curiam

text:
    IMMUNITY¿IN^S ALE OF PLUMAGE OF THE WHITE HERON.
    Circuit Court of Stark County.
    State of Ohio v. Leo Abt.

    Decided, February Term, 1910.

      Game Birds — White Heron Not Protected, hy the Ohio Statutes — Sale of its Plumage Not Unlawful — Section 141%, General Code.

    The white or snowy heron is a vagrant species of “water fowl,” and as such is.a game bird not within the protection of the Ohio statutes, and the sale of its plumage within the state is not unlawful.

      Warren Thomas, for plaintiff in error.

      Shield & Pomerene and Oscar M. Abt, contra.

       Affirming Abt v. State, 9 N.P.(N.S.), 311; Circuit Court affirmed by the Supreme Court without opinion, 83 Ohio State, 451.
      This opinion is cited in State of Ohio v. Solomon, 14 C.C.(N.S.), 590, as an opinion unreported at that date, and the holding herein is followed.

   Per Curiam

(Donahue,, Taggart and Marvin, JJ.).

The state of Ohio .prosecuted the defendant in error, Leo Abt, before Hon. L. M. Barrick, a justice of the peace of Canton township, on an affidavit charging him with having in his possession for sale the plumage of a snowy heron, a wild bird being other than a game bird, contrary to the provisions of the statute in ,sueh case made and provided.

The defendant was convicted before the justice and prosecuted error in common pleas court of this county to reverse that judgment and conviction; and the common pleas court on a proceeding in error did reverse the judgment of the justice, State v. Abt, 9 N.P.(N.S.), 311, and the state how prosecutes error to reverse that judgment of reversal.

There were quite a number of .errors assigned in common pleas court, but we think that the principal one and the o,ne controlling in this case, involves a construction of Sections 22 and 25 of act 99 O. L., 369 (General Code, 1409, 1412). Section 22 provides that no person shall catch or kill, injure, pursue, or have in his possession, dead or alive, etc., a large number of birds, specifying themPy name, and adds: “Or any wild bird other than a game bird; no part of the plumage, skin or body of such bird shall be sold or had in possession for sale.” The snowy heron is not enumerated in Section 22 of this act; so that if it is included within that section, it must appear from the evidence that it is not a game bird.

We are clearly of the opinion that the evidence in this case does not show beyond reasonable doubt that the snowy heron is not a game bird, and for that reason alone the reversal was proper.

Section 25 provides, among other things, that no person shall catch, kill, injure or pursue a wild duck or water fowl on Sunday or Monday of any week, or catch, kill, injure or pursue such water fowl before sunrise or after sunset. This section also enumerates a great many other birds, and concludes as follows : ‘ ‘ The birds named in this section shall be known and classed as game birds in contradistinction to all other birds.”

The evidence in this case conclusively shows that the snowy heron is a water fowl,-so that undoubtedly it comes within the provisions of Section 25; and for that reason also, the judgment of reversal was right.

It also fully appears from the evidence in this case that the snowy heron is not a native bird of Ohio; that it is a habitant of southern waters, and is never seen in a wild state in Ohio except very rarely. So that if it is found in the state at all it is only as a vagrant individual of a species, and is not a native bird. We ■rtñnk these statutes .are designed to protect the native birds and migratory birds that find a home in this state during certain seasons of the year, as well as .other migratory birds that cross the state at regular intervals of each year; and not merely a transient or vagrant individual of a class whose habits are not to migrate either to this state or across it.

The judgment of the common pleas court is affirmed with costs.


text:
    MUNICIPAL APPOINTMENTS AND THE MERIT SYSTEM.
    Circuit Court of Cuyahoga County.
    Andrew B. Lea, as Director of Public Service, v. The State of Ohio, ex rel Newton D. Baker.

    Decided, November 9, 1910.

      Givil Service — Application of, to Vacancy Occurring Before Merit System was in Full Operation — Temporary Appointments — Sections 4480 and 4488, P. & A. Anno. General Code.

    An action lies to compel a director of public service to certify a vacancy to the civil service commission, notwithstanding at the time of the occurrence of the vacancy the civil service commission had not prepared rules and regulations adapted to carry out the purpose of the civil service act with reference to examinations and promotions.

      Mathews & Orgill, for plaintiff in error.

      Newton B. Baker, City Solicitor, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.
    Error to the court of common pleas.

       Affirmed without opinion, Lea v. State, ex rel, 83 Ohio State, 518.

   The parties to this proceeding in error stand here in the relation opposite to that in which they stood in the court of common pleas. The action there was brought by the city solicitor to compel the director of public service of the city of Cleveland to certify a vacancy in the postion of inspector of street lighting to the civil .service commission, to the end that said commission might certify back to him the names of three qualified persons, from among whom to choose in filling said vacancy, pursuant to the provisions of “An act to amend and supplement certain sections of the municipal code of. 1902,” etc. (99 Ohio Laws, 562).

Among the new provisions of law in this act are those of Sections 157 to 165 inclusive of the municipal code (General Code, Sections 4479-4488) extending the merit system of appointment to all but certain excepted positions in the municipal service. These sections became effective January 2, 1910.

Section 129 of the. municipal code (General Code, Section 4247) was amended by the same act (99 Ohio Laws, 562), and this part of the act became effective August 1, 1909. It provides among other things that “the directors and officers provided for in this act shall have the exclusive right, subject to the limitation herein prescribed, to appoint all officers, clerks and' employes in their several respective departments or offices, and shall likewise, subject to the limitations herein prescribed, have sole power to remove or suspend any such officers, clerks or employes. ’ ’

The present inspector of street lighting was appointed January 29, 1910, after the civil service commission was appointed, but before it had prepared rules and regulations adapted to carry out the purposes of said act as provided by Section 159 thereof (General Code, Section 4480).

The theory of the petition below is that he was appointed pursuant to Section 165 of said act (General Code, Section 4488) which reads as follows:

‘ ‘ To prevent stoppage of public business or to meet extraordinary exigencies, as provided in this act, the mayor may make temporary appointments.”

The contention of the defendant below is that the present inspector of public lighting was appointed pursuant to the general appointive power vested by Section 129 in “the directors and officers” of the city for “their several respective departments. ’ ’ He argues that the fact that rules and regulations had not yet been prepared by the civil service commission to put the merit system into actual operation can not be deemed to have suspended the general appointive power of heads of departments and to have restricted the exercise of the appointive power to the making of emergency appointments by the mayor.

It seems clear, however, that no such dilemma was created by the circumstances which then obtained. It was not necessary that the civil service commission should complete preparation of rules and regulations and other preliminaries to the full operation of the merit system, in order to respond to a notification that the occurrence of a vacancy required the certification of three persons eligible to fill it. The provisions of Section 160 of the act (General Code, Section 4481) are plain and imperative :

“Appointments shall be made as follows: the appointing board or officer shall notify the commission of any vacancy to be filled. The commission shall thereupon certify to such board or officer the three candidates graded highest in the respective lists as shown by the result of such examination. Such board or officer shall thereupon appoint one of the three so certified. ’ ’

If delay ensued in 'following out of this procedure, so as to threaten “the stoppage of public business,” the mayor might “make temporary appointments” until the commission could act.

But it does’not appear on this record that any effort was made to have the commission act. When the vacancy occurred it was filled without certifying the fact of vacancy to the commission at all. The commission might well have been able to expedite their action if occasion had arisen calling upon them to act.

The action below was decided on the pleadings, a demurrer to the answer having been sustained and judgment rendered. We discern no error in this record, and the judgment is affirmed.'


text:
    ALLEGED LIBEL IN A COURT PROCEEDING.
    Circuit Court of Cuyahoga County.
    Fritz Rudin v. Lou Fauver and Lee Stroup.

    Decided, December 28, 1909.

      Libel — Materiality and Revelancy of Allegations Constituting the Alleged Libel — Degree of Privilege Attaching to Statements Made in Court.

    Statements made in court by attorneys and others, in relation to matters in litigation therein, are subject to an absolute privilege and can not be made the basis for an action for libel.
    Henry, J.; Marvin, J., and Winci-i, J., concur.
    Error to the court of common pleas. ■

       Affirmed without opinion, Rudin v. Fauver et al, 83 Ohio State, 468.

   This proceeding in error is brought to reverse a judgment rendered by the court below upon sustaining a demurrer to the petition in an action of libel, and the parties, therefore, stand as they stood below. The alleged libel consists of allegations of fraud and corruption on the part of the plaintiff in error contained in a petition filed by the defendants in error as attorneys in a preceding case in the court of common pleas. It is charged that these allegations were maliciously and gratuitously made, without any necessity, arising in the nature of the relief prayed for, to make the plaintiff in error a party or to allege anything about him, and that the allegations in question were wholly false.

It is unnecessary to go into the question of materiality of the allegations, constituting the alleged libel; to the cause wherein they were made, further than to say that they have no such obvious irrelevancy or utter want of relation to the action as to put them entirely out of the pale of privilege. The real question that we have is whether all statements made by attorneys and others in court, in relation to matters'in litigation therein, are the subject of an absolute or only qualified privilege. This question seems never to have been directly decided by the Supreme Court of Ohio. It was found unnecessary to decide it in the ease of Lanning v. Christy, 30 Ohio State, 115, and Liles v. Gaster, 42 Ohio State, 631. There is an obiter dictum in the ease of The Post Publishing Company v. Maloney, 50 Ohio State, 71, 84, that:. "In such cases the privilege constitutes an absolute bar to the action. ’ ’

Assuming that such is the law in this state, the demurrer below was properly sustained. We are unable to say that this was error, and the judgment is therefore affirmed.


text:
    INVALID PROVISION IN A WILL.
    Circuit Court of Jefferson County.
    Joshua Moores, Executor of Sarah Viers Croskey, v. Olive Holmes Gwynne et al.
    Decided, December Term, 1911.

      Wills — Husband and Wife — Legacy Rendered Invalid by Conditioning it Upon the Securing of a Divorce.

    A provision in a will making the receipt of a legacy dependent on a separation of husband and wife is contrary to public policy and void, and the legatee takes the legacy absolutely.

      Mansfield Merrymam,, for plaintiff.

      Metcalfe, J.; Norris, J., and Pollock, J., concur.
   The plaintiff, as executor and trustee of the will of Sarah Viers Croskey, seeks a construction of a clause in said mil.

The fourth item in the will gives one-half of the residue of the testator’s property to her brother, James M. Viers,'during his life. Then follows this provision:

‘ ‘ The remaining half of the residuum of my property shall be invested in a fund, the income of which shall accumulate from year to year and be added to the principal thereto for and during the natural life óf Lenore Boyer Viers, or so long as she remains the wife of my brother, Basil W. Viers; then at her death, if my brother Basil W. Viers be living, or at her legal separation from my brother Basil W. Viers, if such occurs, my brother, the said Basil W. Viers, shall receive the accumulated income of this one-half of the residue of my estate absolutely, and thereafter shall receive the income of this said fund for and during his natural life.”

By the provisions of this clause Basil W. Viers can only receive the legacy therein given upon the happening of one of two events, that is to say, at the death of his wife or his separation from her. She must either die or he must get a divorce. He is offered a pecuniary inducement to separate from her. A condition in a will designed to effect the separation of husband and wife is contrary to public policy and is absolutely void. The authorities are practically unanimous in so holding. 33 Mich., 78; 45 N. W. R., 422; 30 Neb., 149; 27 Am. St., 391; 3 Johns. Ch., 521; 5 Johns. Ch., 459; 38 Am. Dec., 152; 2 Jarman, Wills, 524; 29 Am. & Eng. Ency. of Law, 1st Ed., 445.

We, therefore, hold that the provision in item four of the will making the legacy to Basil W. Viers dependent upon his separation from his wife is void and he takes the legacy absolutely.