text:
    Fraser v. Lee et al.

      Vault—Burial lot—Title transferred, how—Disposal of the dead —Rights which stranger may acquire in burial lot.

      1. The disposal of the dead, from motives of sanitation and health, is a state function. The state, by legislative enactment, has given exclusive and complete control thereof to municipalities within the territorial limits of each.
    2. A document, in order to effectually pass title to a burial lot, need not take the form of a real estate deed.
    3. The law will not permit a stranger to acquire a certificate of title to a vault or burial lot and then found upon it the right to disturb the remains of the dead.
    4. A stranger who acquires a certificate of title to a vault or burial lot may dispose of whatever rights of burial there may be in vacant space therein, but such person by acquiring such certificate of title obtains no right to remove, disturb or in any manner interfere with the bodies and remains of the dead interred in such vault or burial lot. The dead placed in such vault or burial lot are entitled to remain there until their removal is sought by their next of kin, or until the authorities, in the exercise of their care for the public health, deem it advisable to remove them by virtue of a sale or abandonment of the cemetery.
    (Decided November 12, 1917.)
    Appeal: Court of Appeals for Cuyahoga county.

      Mr. A. R. Odell, for plaintiff.

      Messrs. Marvin & Marvin, for defendants.
   Lieghley, J.

The plaintiff, Mary Spargo Fraser, filed her petition in the court below in which she alleged that the city of Cleveland is the owner of the Monroe Street Cemetery; that one Henry Potter, in 1871, purchased Lot No. 42 in Section 4 in said cemetery from the city and received the usual certificate of title; that in 1891 he erected thereon a vault at a cost of about three thousand dollars ($3,000.00), suitable for the interment of eight bodies or more; that in September, 1891, said Henry Potter died intestate without issue, leaving surviving him his wife, Mary Ann Potter, and that he was interred in said vault where his body now is; that said Mary Ann Potter died in April, 1898, and left surviving her a sister, Emma Caley, who has since died, and the children of said Emma Caley, the plaintiff and William Caley, and some other nephews and nieces; that plaintiff is one of the next of kin and one of the nearest in kinship of said Henry and Mary Ann Potter, deceased; that said defendants, Lovisa Viola Lee and Isidore Steinman, claim to own said vault and lot, but they, or neither of them, have any right or title to or interest in said burial lot or vault; that neither of said defendants is related by blood or marriage to the persons whose bodies are now interred in said vault or to any of the persons for whom the said Henry Potter erected the same; that the said defendants, except the city, are trying to sell said lot and vault to strangers, or to anyone who will agree to purchase the same, in utter disregard of the wishes and feelings of the surviving friends and next of kin of the deceased; that the said city of Cleveland will issue a permit, unless réstrained, for the removal of said bodies; and that said plaintiff is in the possession of said easement of burial in said lot. Wherefore, the plaintiff prays that defendants be required to set up their claim or interest in said lot and vault and that the same be declared null and void by the court; that the said defendants be permanently enjoined from selling or mortgaging said lot or vault; that they be permanently enjoined from removing said bodies interred therein or any of them and from interfering in any way with said lot or vault or the bodies now interred therein and from defacing in any way said vault; and that said city be enjoined from issuing a permit for or consenting to the removal of said bodies or any one of them.

The defendants, excepting the city, admit the ownership of the cemetery by the city, the purchase of the lot by Henry Potter, as alleged, the erection of a vault thereon by him substantially as alleged, the death of Henry Potter in 1891, leaving surviving him his wife, Mary Ann Potter, without issue of his body, and his burial in said vault; that said Mary Ann Potter never remarried and that she died in April, 1898, leaving no children, and was interred in said vault. They deny the possession of said vault and lot by plaintiff and allege that she has no right, title or interest therein. And they deny each and every allegation, except as admitted, contained in the petition. Further answering, they allege that Henry Potter died seized in fee simple of the title to the said lot and vault and that his wife, Mary Ann Potter, upon his death, succeeded thereto as his sole heir at law; that in August, 1895, the said Mary Ann Potter transferred to Cassa A. Taylor, by a sufficient instrument of conveyance, for a valuable consideration, all her right, title and interést in and to said lot and vault; that said conveyance is recorded in the records of the Monroe Street Cemetery; that said Cassa A. Taylor died in 1907 seized in fee simple of said lot and vault and left as her sole heirs at law the defendants, Lovisa Viola Lee and Isidore Steinman, her daughters; and that as such heirs at law they are now the owners in fee simple of said lot and vault and actually have the possession thereof and have had the same since the death of their mother. Wherefore, they pray that the petition of plaintiff be dismissed and that the title of the defendants be quieted.

The proof showed the purchase of the lot, the relation of the parties, the burial of the bodies in said vault, substantially as alleged by plaintiff. The proof further showed the execution of a certificate of transfer to the mother of defendants substantially as alleged by them in their answer and cross-petition.

The first question to be determined is what interest the defendants, the daughters of Mrs. Taylor, now have in said lot and vault.

The title to and right of possession of the Monroe Street Cemetery is in the city by statute. Section 4160, General Code.

When this burial lot was sold to Potter in 1871 the usual deed was executed to him and recorded in the records of the cemetery. Whether that deed was in form absolute on its face, or otherwise, Potter acquired no greater right than that of burial, ornamentation and erection of monuments. When he died his wife succeeded to just such interest in the land as her husband had. When Mrs. Potter transferred by paper writing, duly recorded in the records of the cemetery, her title or interest in the lot and vault to Mrs. Taylor, Mrs. .Taylor received and acquired no greater interest than Potter obtained by deed, with the easement of burial limited to unoccupied space. When Mrs. Taylor died, her daughters acquired the same interest, which is an easement of burial, of ornamentation, of construction and maintenance of monuments, encumbered as above stated.

The disposal of the dead, from motives of sanitation and health, is a state function. The state, by legislative enactment, has given exclusive and complete control thereof to municipalities within the territorial limits of each. Sections 4154 to 4205, General Code.

It is clear from a careful reading of this chapter that the deed authorized to be given _ to a purchaser of a burial lot conveys only the right of burial therein, and constitutes only an easement of burial. The city is authorized to remove the bodies from the cemetery even beyond the territorial limits of the city, if, in the judgment of the authorities, from the standpoint of public health, such proceedings are deemed advisable.

The plaintiff claims that the paper writing given by Mrs. Potter to Mrs. Taylor was not sufficient in form to convey any interest in this lot to her, but that the necessary document should take the form of a real estate deed to effectually pass title. With this we do not agree. In view of the fact that the burial of the dead is a matter of state supervision and has been placed exclusively within the power and control of the city, and also the regulation of the cemetery and the sale of lots therein in manner and form prescribed, we are of the opinion that the paper writing transferred to Mrs. Taylor whatever interest Mrs. Potter at the time had in said vault and land in respect to the right of burial. Whether it be called an easement, a privilege or a license, under the circumstances a formal deed was not required to transfer whatever interest she had. 6 Cyc., 717.

We, therefore, conclude that the plaintiff is not entitled to an order restraining the defendants from selling or transferring whatever rights or interest they may have in and to said lot.

Plaintiff prays for the further relief of an order restraining the defendants from removing, interfering with, or in any manner disturbing, the bodies now interred in said vault and burial lot.

The disputed proof is to the effect that the defendants offered to sell said vault and lot for the sum of $400 with the bodies remaining in the vault, or $600 with the bodies removed. The undisputed proof is that an advertisement was inserted in one of the local papers offering said lot for sale; and that the vault is now almost filled with remains of the dead. The circumstantial fact is almost conclusive that any idea of sale of said vault and lot carries with it the necessity of removal of the bodies; for, with them in the vault, the same is of little or no value to a prospective purchaser other than the next of kin of those interred therein. We think the evidence tends to show that it is the intention of said defendants to sell said vault with the idea of removal of the bodies, unless restrained by this court from so doing. However, the defendants claim that by virtue of title in them they have a right so to do, and that the plaintiff has no standing in court to object thereto.

An examination of the statutes relating to cemeteries will disclose that in all that is said about supervision of cemeteries, the sale of lots, etc., nothing whatever is said of a right of disinterment, except on the part of the city, in the event of the sale of the cemetery or abandonment thereof.

In Section 3467, in the chapter relating to township cemeteries, will be found a provision to the effect that the authorities in charge of a cemetery may grant a permit to next of kin under certain conditions to disinter a body. Whether or not this section is a general statute or relates only to township cemeteries is immaterial to us, for the reason that it is the only right granted anywhere in the statute law of the state to any person to disinter a body, except the authorities in charge of the cemetery. Nowhere is the right given to a stranger to do so. From nowhere in the statutes can the claim be deduced that any idea of barter and sale was contemplated in the legislation relating to cemeteries and the proper disposal of the dead. We believe that an examination of the authorities will sustain us in the view that the right to disinter has always been reserved to the next of kin and the authorities in charge of a cemetery. Such we believe to be the policy of the law. 1 High on Injunctions (4 ed.), Sections 351 and 853, and authorities following therein.

In a prosecution under a criminal statute for removal of a body from a grave without the consent of the deceased person obtained in his lifetime, or from his near relatives, after death, the court says:

“The offence does not consist merely in the removal of a dead body, but in its removal without the consent of such deceased person obtained in his or her lifetime, or of the near relatives of the deceased since his or her death.” Tate v. The State, 6 Blackf. (Ind.), 110, 112.

Quoting from Parker & Worthington on Public Health and Safety, Section 360:

“The grant of a right or license of interment is always impliedly restricted by the condition that whenever it shall become necessary, for the public health or welfare, that the grounds shall no longer be used for the purpose of interment, the right or license shall be deemed to be revoked or repealed; and, in such case, the only right of the grantee is to have the remains of the dead removed and properly deposited in a new place of sepulture. So, if a place of burial be taken for a public use, the next of kin of persons buried there are entitled to be indemnified for the expense of removing and suitably reinterring the remains of the dead.”

In the case of First Presbyterian Church v. Second Presbyterian Church, 2 Brewster (Pa.), 372, the syllabus reads as follows:

“The removal of the remains of persons interred in a burial ground, without the consent of their families, enjoined at the suit of such families as have the right to inter in said ground.”

The facts in above case disclose that one purchased the land upon which the burial ground was situated, and the court holds that equity will interfere to restrain him from removing the bodies therefrom notwithstanding his legal title if attempted to be done without the consent of those interested.

In the case of Wormley v. Wormley, 207 Ill., 411, land was set apart by the owner for cemetery uses and bodies were buried in the part uniformly dedicated to such uses. It was held that a court of equity will enjoin him and those claiming under him from defacing or meddling with the graves, and that anyone having friends or parties buried upon the ground may bring the action for such relief. To the same effect is Boyce et al. v. Kalbaugh et al., 47 Md., 334.

Quoting from 1 High on Injunctions (4 ed.), Section 703:

“Interference zvith burial ground. In conformity with the general principle that an act of trespass for which it is impossible to give an adequate remedy by damages at law may be enjoined in equity, it is held that where land has for many years been held and used by the owner as a family burial ground, defendants may be enjoined from encroaching thereon and from a threatened removal of the remains of persons interred therein. And in such case, the right to equitable relief is based upon the faot that there can be no standard by which to estimate the damages sustained, since the extent of the injury is dependent upon the feelings of the persons aggrieved, and upon their peculiar views of the sacredness of the ground in question. So the invasion or appropriation, without authority, of lands owned by the trustees of a religious organization and used by them for burial purposes, and the attempt to take such property from the owners without authority, and to devote it to another purpose, constitute an injury of such an irreparable nature as to justify the interposition of equity by injunction. And where land was dedicated by a former owner for use as a burial ground, and has been so used for many years, a subsequent owner of the premises may be enjoined from interfering with their use for burial purposes at the suit of the residents of the neighborhood having friends buried there, plaintiffs suing for themselves and for all others having a like interest. So where a father buried the remains of his deceased son in his own lot in a cemetery, with the full approval and consent of the widow of the deceased, the widow was enjoined from removing the remains to another place for burial.”

In the case of Beatty v. Kurtz, 2 Pet., 566, which involved the question of title, the court says at page 584:

“The property consecrated to their use by a perpetual servitude or easement, is to be taken from them; the sepulchres of. the dead are to be violated; the feelings of religion, and the sentiment of natural affection of the kindred and friends of the deceased are to be wounded, and the memorials erected by piety or love to the memory of the good, are to be removed, so as to leave no trace of the last home of their ancestry to those, who may visit the spot in future generations. It cannot be that such acts are to be redressed by the ordinary process of law. The remedy must be sought, if at all, in the protecting power of a court of chancery; operating by its injunction to preserve the repose of the ashes of the dead, and the religious sensibilities of the living.”

Also see Weld v. Walker, 130 Mass., 422; Smiley v. Bartlett, 6 C. C., 234, and Pansing v. Miamisburg, 11 C. C., N. S., 511.

It is to the interest of the public health that one who has been placed in his final resting place, under the supervision of the proper authorities, shall remain there. The policy of the law is that he shall remain there, with the exception of deference for the wishes of the next of kin. It was never contemplated or intended that a burial lot in a public cemetery should be made the subject-matter of barter and sale, nor can such claim be predicated upon the acquisition of a certificate of transfer of title to said lot. The idea of making the lot of land chosen by a man in his lifetime as a last resting place for himself and his family a subject for public auction is offensive to the sensibilities of mankind. It is contrary to the public policy of this state, as evidenced by its legislation, and contrary to the public policy of all other states to which our attention has been called, and the laws and statutes of which we have examined, that a stranger should be permitted to acquire a certificate of title to a burial lot and then found upon it the right to disturb the remains of the dead and thereafter commercialize the easement of burial so obtained. We doubt the right of the city so to do.

We conclude that no power rests in this court to restrain the defendants from disposing of whatever rights of burial, etc., in vacant space acquired by virtue of the transfer made by Mrs. Potter to Mrs. Taylor, but we do hold that, whatever interest was so acquired, the same is shorn of any right to remove, disturb or in any manner interfere with the bodies and remains of the dead interred in said vault or said burial lot. The dead placed in this vault, in part selected by them, are entitled to remain there until their removal is sought by their next of kin; or until the authorities, in the exercise of their care for the public health, deem it advisable to remove them by virtue of a sale or abandonment of the cemetery.

A decree may be drawn perpetually restraining the defendants Lovisa Viola Lee and Isidore Stein-man, their successors in title, and anyone claiming through or under them or to act for and in their behalf, from removing, disturbing or in any manner interfering with the bodies now interred in said vault and burial lot.

The costs are assessed against the defendants.

Injunction allowed.

Carpenter, J., concurs.

Grant, J., dissents.


source: Caselaw Access Project

author: Gorman, J.

license: Public Domain

text:
    The Cleveland & Western Coal Co. v. O’Brien, Treasurer.

      Taxation—Moneys—Credits—Bank deposits—Intangible property— Situs of credits—Powers of legislature—Moneys of Ohio corporation deposited in another state.

    1. Ordinarily money deposited in a bank to the credit of a corporation or individual and subject to check by the depositor creates the relation of debtor and creditor between the bank and the depositor, and moneys deposited in a bank subject to check are credits or intangible property.
    2. It is proper for the legislature to provide what things shall be money and what shall not be money for the purpose of taxation.
    3. Section 5326, General Code, does not provide that deposits in a bank subject to be withdrawn in money on demand by a depositor are tangible .property.
    4. All credits have their situs at the residence of the owner, and not at the place where the credit is carried on the books held ¡by the person entitled to hold the credits.
    5. Moneys of an Ohio corporation deposited in a bank in another state, and subject to be withdrawn upon demand, are to be considered for the purposes of taxation as money, but nevertheless are intangible property and have their situs for the purposes of taxation at the place of the principal office of the company in Ohio.
    6. Section 5406-3, General Code, has no application to property located outside the state of Ohio, and does not affect moneys and credits, held outside the state, but belonging to individuals or corporations in the state.
    (Decided July 2, 1917.)
    Appeal : Court of Appeals for Cuyahoga county.
    Error : Court of Appeals for Cuyahoga county

      Mr. C. F. Taplifij for the coal company.

      Mr. Samuel Doerfler, prosecuting attorney, and
      Mr. T. S. Dunlap, assistant prosecuting attorney, for O’Brien, county treasurer.
   Gorman, J.

Judgment was rendered in favor of the treasurer of Cuyahoga county in the court below. A demurrer to the petition was sustained in the court of common pleas, and the matter comes up both on error and appeal to this court.

The plaintiff, a corporation under the laws of Ohio, filed its petition in the common pleas court of Cuyahoga county, setting out that it is a corporation organized under the laws of Ohio and having its principal place of business in the city of Cleveland in said county, and that the defendant was the duly elected, qualified and acting treasurer of the county of Cuyahoga and state of Ohio. Plaintiff says that in its business of buying and selling coal it has acquired and operated a dock in the city of Milwaukee, county of Milwaukee and state of Wisconsin; that said dock is operated as a distinct department of the plaintiff’s business and that all dealings connected therewith are kept separate and distinct from the other business of the plaintiff; that all coal put upon said dock by the plaintiff is charged up to said dock as though it were a separate entity from the plaintiff and that its operating costs and all expenses in connection with its operation are kept separately, regular books being kept to cover all purchases and sales in connection therewith, said books being kept in the Milwaukee office; that all remittances to the plaintiff arising from the sale of dock coal are made to the Milwaukee office, endorsed by the manager of said office, and deposited to the credit of the plaintiff in the account carried in the First National Bank of the city of Milwaukee; and that said dock business has its own profit and loss account and in every way is operated as a distinct and separate business transacted by the plaintiff in the city of Milwaukee, Wisconsin. The plaintiff further says that it duly made and filed its tax return with the proper authorities of Cuyahoga county, Ohio, covering the property owned and held by it, on the day preceding the second Monday in April, 1916, which according to the statute it should list in Cuyahoga county; that the statement accompanying the tax return so filed by plaintiff showed that the plaintiff had on deposit in the First National Bank of Milwaukee, Wisconsin, on said tax-listing day the sum of $43,850.98; and that the auditor of Cuyahoga county, without the consent and over the protest of plaintiff has placed said sum of money on the duplicate as being taxable property of the plaintiff in Cuyahoga county, and the defendant herein, as treasurer of Cuyahoga county, has entered upon his books as due from plaintiff by way of tax on said sum of money the sum of $681.86, which sum he threatens to and will collect of this plaintiff unless he is enjoined from doing so. Plaintiff further says that under and by virtue of Sections 5404 and 5406-3, General Code of Ohio, the county auditor is without right or authority to list as the property of this plaintiff as taxable in Cuyahoga county said sum of $43,850.98 on deposit in Milwaukee on tax-listing day, and the county treasurer is without right or authority to assess or collect any tax thereon. The petition further avers that said officers maintain that said bank deposit is taxable under Section 5328, General- Code of Ohio, but plaintiff avers that said section of the code is not applicable to the Milwaukee deposit, and plaintiff says further, that, if said section should be held applicable, it is unconstitutional and void, being contrary to the provisions of the Ohio and Federal Constitutions and amendments thereto. Plaintiff further says that it has tendered to the defendant the sum of $723.39, being the amount of tax lawfully and admittedly due from this plaintiff on the property returned by it, and' upon which it is lawfully liable to be taxed, but that the defendant herein has refused to accept said sum, claiming that the plaintiff should pay said additional sum of $681.86, the tax assessed upon the Milwaukee bank deposit, which amount of tax plaintiff claims is assessed without right or legal authority. Plaintiff further says that it is now able, ready and willing and now offers to pay said amount of $723.39, or any other sum that may be claimed as the tax lawfully due on the property returned for taxation of the value of $46,520. It prays for a temporary restraining order enjoining the defendant as treasurer of the county of Cuyahoga, state of Ohio, from enforcing the collection from it of said tax on said Milwaukee bank deposit, and from adding any penalty thereto; and that upon a final hearing said order may be made permanent, and for such other and further relief as plaintiff is in equity entitled to.

As before stated, the demurrer to this petition was sustained by the common pleas court, and the plaintiff not desiring to plead further the plaintiff’s petition was dismissed, and it was “considered that the defendant go hence without day and recover of the plaintiff his costs,” to all of which the plaintiff excepted, and appealed the. case to this court.

It is immaterial whether the question raised be decided upon appeal or error proceedings, inasmuch as there are no facts stated in the record to be considered by the court except those pleaded in the petition.

The question to be determined is whether or not the money of the plaintiff company deposited at Milwaukee is subject to taxation in Cuyahoga county, Ohio. We are of the opinion that it is subject to taxation and that the court of common pleas did not err in sustaining the demurrer to the petition.

Ordinarily money deposited in a bank to the credit of a corporation or individual and subject to check by the depositor creates the relation of debtor and creditor between the bank and the depositor, and moneys deposited in a bank subject to check are credits of intangible property. By the provisions of Section 5326, General Code, the term “money” or “moneys,” for the purposes of taxation, “includes any surplus or undivided profits held by societies for savings or banks having no capital stock, gold and silver coin, bank notes of solvent banks, in actual possession, and every deposit which the person owning, holding in trust, or having the beneficial interest therein, is entitled to withdraw in money on demand.”

Now it is perfectly proper and legitimate for the legislature to provide by legislation what things shall be money and what shall not be money for the purpose of taxation, but it will be noted that this Section 5326 does not provide that deposits in a bank subject to be withdrawn in money on demand by a depositor are tangible property. It needs no citation of authorities to support the proposition that all intangible properties — credits — have their situs at the residence of the owner, and not at the place where the credit is carried on the books held by the person entitled to hold the credits.

Notwithstanding the fact that for the purposes of taxation these funds of the plaintiff at Milwaukee are to be considered as money, they nevertheless are intangible property, and have their situs in Cleveland, the. residence of the plaintiff company. Every corporation in Ohio for the purpose of taxation is as much a person as an individual person, and its residence is fixed by statute as the place where its principal office is located in the state.

Under the provisions of Section 5328, General Code, “All real or personal property in this state, belonging to individuals or corporations, and all moneys, credits, investments in bonds, stocks, or otherwise, of persons residing in this state, shall be subject to taxation, except only such property as may be expressly exempted therefrom. Such property, moneys, credits, and investments shall be entered on the list of taxable property as prescribed in this title.”

It is not claimed in this case that the moneys on deposit in Milwaukee are exempt by virtue of any law in Ohio which exempts them. The claim made by counsel for plaintiff is that under Section 5404, General Code, a corporation is required to-list for taxation moneys and credits of the corporation within the state at the true value in money. This Section 5404 is found in Chapter 4 of Title I, Part Second, relating to taxation, and it prescribes the method whereby the officers of a corporation shall make their returns for taxation to the proper officer of the county. In substance it provides:

“The president, secretary, and principal accounting officer of every incorporated company, except banking or other corporations whose taxation is specifically provided for, for whatever purpose they may have been created, whether incorporated by a law of this state or not, shall list for taxation, verified by the oath of the person so listing, all the personal property thereof, and all real estate necessary to the daily operations of the company, moneys and credits of such company or corporation within the state, at the true value in money/”

The construction to be placed on this section we think is that all real estate and all personal property, all moneys and all credits belonging to a corporation within the state of Ohio, shall be listed for taxation at their true money value. Of course tangible property located outside of the state of Ohio cannot be taxed in the state of Ohio; but intangible properties, such as credits and moneys on deposit in a bank located outside of the state and owned by individuals or corporations in this state, we hold have their situs in the state at the place of residence of the owner, and are to be there taxed.

It would be inequitable and unjust to hold in a case like this that a corporation which has money on deposit outside of the state will not be liable to list this money for taxation, whereas an individual similarly situated — in the state and having money on deposit outside the state — would be required to list this money for taxation. It is immaterial what this money may be called, whether it be designated money or a credit, it belongs to the plaintiff corporation and is subject to the order of the plaintiff corporation, and is intangible in its nature by reason of the fact that the moneys deposited in a bank are not kept separate and apart, in trust for the depositor, but these deposits constitute between the bank and its depositor the relation of debtor and creditor and make these deposits a credit, even though the legislature itself for the purpose of taxation classifies moneys in bank subject to be withdrawn as “money.”

It is urged that Section 5406-3, General Code (106 O. L., 249), throws some light upon the question under consideration. That section provides:

“In determining the location of property for the purpose of the two preceding sections [that is, for the purpose of listing the same for taxation] all moneys and credits used in or appertaining especially to a separate business transacted by an incorporated company at a particular place, shall be deemed to be located at such place where the business is transacted, and moneys and credits not used in or appertaining especially to such separate business transacted at any particular place shall be deemed to be located at the principal place of business of such company.”

This statute was enacted for the benefit of the state of Ohio, and the various counties, in order that the various towns, municipalities and other subdivisions of the state might have the benefit of receiving the taxes from property located in the subdivisions of the state. And this rule was made to apply to moneys and credits as well as to tangible property. But this section would have no application to property located outside of the state of Ohio, and was never intended to affect moneys and credits, held outside of the state of Ohio, but belonging to individuals or corporations in the state of Ohio, as will be apparent by a reference to the two preceding sections, 5406-1 and 5406-2, General Code.

For the reasons stated the demurrer will be sustained, and a decree may be entered in favor of the defendant.

The error proceedings will be dismissed.

Judgment for defendant.

Petition in error dismissed.

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

Judges of the First Appellate District, sitting in place of Judges Grant, Carpenter and Lieghley of the Eighth Appellate District.


author: Houck, J.

text:
    Loney, Exr., v. Walkey, Admr.

      Jurisdiction — Probate and common pleas courts—■ Estates—Settlement between executors.

    The common pleas court is without jurisdiction over an action 'brought by an executor against his coexecutor for an accounting. Such an issue must be presented to and finally determined by the probate court.
    (Decided October 25, 1917.)
    Error: Court of Appeals for Knox county.

      Mr. L. C. Stillwell; Mr. D. B. Rawlins; Mr. J. B. Graham and Mr. R. L. Carr, for plaintiff in error.

      Mr. F. 0. Levering and Mr. P. A. Berry, for defendant in error.
   Houck, J.

The parties here stand in the same relation to each other as in the court below. The errors complained of are:

First. The overruling of the demurrer to the answer of defendant.

Second. The sustaining of the demurrer to the reply filed by plaintiff to the answer of defendant.

Third. The sustaining by the court of a motion to dismiss plaintiff’s case and render judgment for defendant.

An inspection of the petition of the plaintiff in error, who was the plaintiff below, clearly shows that the basis of the action and the relief sought was an accounting between Julia A. Loney, as executrix of Reuben C. Loney, deceased, and Elva Loney, as coexecutor thereof.

To us this is a new procedure, and we are unable to find any authority in law for it. The probate court is by law created for the purpose of hearing and determining all questions with reference to accounts of administrators, executors, guardians, etc.; and, in the settlement of all estates, the rights of the parties therein as to the funds belonging to the estate, and in the administration thereof, must first be determined by that court.

The issues raised in the case now before us for review upon the petition, answer, and reply clearly show that the common pleas court, and this court as well, is and are wholly without jurisdiction in the premises, because the issues raised by the pleadings must first be passed upon and finally determined in the probate court.

It therefore follows from what we have already said that we find no prejudicial error in the record, and that the judgment of the common pleas court must be affirmed.

Judgment affirmed.

Powell and Shields, JJ., concur.


author: Kunkle, J.

text:
    Wilson v. Wilson et al.

      Wills—Challenge of right to contest—Procedure—Legitimacy— Child begotten before marriage—And bom after divorce of parents.

    1. The question of a plaintiff’s interest or right to maintain a suit to contest a will should be made by a special plea, and should be tried and determined before the trial on the issue as to the • validity of the will.
    2. Under the common law, a child begotten before the marriage of the parents is in legal existence and capable of inheriting as a legitimate child from the date of the marriage between the natural father and mother, irrespective of shortness of time of birth of the child after such marriage. Such child can not thereafter be bastardized or rendered illegitimate by a decree for divorce between the father and mother, even where the decree is entered before the birth of the child.
    (Decided November 28, 1917.)
    Error: Court of Appeals for Greene county.

      Mr. Marcus Shoup and Mr. W. L. Miller, for plaintiff in error.

      Mr. M. J. Hartley and Mr. C. L. Darlington, for defendants in error.
   Kunkle, J.

Plaintiff in error, Reamy A. Wilson, brought an action to contest the will of William M. Wilson, claiming to be the only child and heir at law of said William M. Wilson.

The legatees, devisees and the executor named in the said will were made parties defendant.

Defendants below filed an answer consisting of a general denial of all the facts contained in the petition except the death of William M. Wilson; the fact that he left surviving him his wife, De Etta Wilson; the fact that his will has been duly-proven; that the said De Etta Wilson is his executrix; and that the persons named in the petition are devisees and legatees under the will.

Subsequent to the filing of said answer, two of the defendants, Nellie Van Horn Moorehead and Mary Van Horn Smith Dare, filed a plea in abatement, in which they deny that plaintiff in error is a child or heir at law of William M. Wilson, deceased, and further state that the plaintiff in error is not related to said William M. Wilson and has no interest whatever in the subject-matter of the suit.

Thereupon the case came on for hearing upon the said plea in abatement, and was submitted to the court upon such plea and the evidence.

The trial court found that the plaintiff in error was not an heir at law of William M. Wilson, deceased, and had no interest in his estate and no right to maintain this action.

The plea in abatement was therefore sustained and the petition dismissed.

From such judgment, plaintiff in error prosecutes error to this court.

We have carefully read the record in this case and considered the various authorities cited in the briefs of counsel. We shall not, however, attempt to discuss either the evidence or the authorities in detail, but will merely announce the conclusion at which we have arrived after a careful examination of the record and authorities cited.

In brief, however, it appears from the record that the said William M. Wilson was married to Ida J. Dawes on January 10, 1876, at Logansport, Indiana; that at the time of said marriage the said Ida J. Dawes was pregnant, and that a child was born to her June 23, 1876, at Cincinnati, Ohio.

The testimony tends to show-that shortly prior to the marriage of the said William M. Wilson and Ida J. Dawes the said Wilson attempted to induce Ida J. Dawes to go to Dayton, Ohio, for the purpose of having an abortion committed, and that her refusal to do so angered the said Wilson; that he did induce her, however, to go to Cincinnati for the same purpose; and that she went to the hospital of Dr. Reamy at Cincinnati, where the said Wilson had arranged for her treatment. The record discloses that in the meantime the family of Ida J. Dawes became alarmed and sought out the said William M. Wilson and demanded that he disclose the whereabouts of the said Ida J. Dawes.

It appears that as a result of these efforts Ida J. Dawes was brought back to Logansport, Indiana, the home of herself and also of the said Wilson.

A family conference was held with the said Wilson, which resulted in his agreeing to marry the said Ida J. Dawes. The mother of Ida J. Dawes insisted upon the marriage for the purpose of giving the expected child a name. The following appears on page 5 of the record:

“He' [meaning the said Wilson] said he would marry her but he would not live with her. He wasn’t going to be disgraced and would not have this thing made public but he would marry her. And my mother said she simply asked for a name for the child. He was willing and brought his license and the minister — an Episcopal minister.”

The marriage ceremony was performed at the home of Ida J. Dawes, in the presence of members of her family and John C. Nelson, a friend of the said Wilson, the said Nelson, who testifies in this case, bqing invited by Mr. Wilson to accompany him.

Immediately after the marriage, the testator left his said wife and did not subsequently live with her.

Shortly after the marriage of the said parties, and before the birth of the child, the said parties were divorced by the circuit court of Cass county, Indiana. The wife secured the divorce and also an allowance for alimony.

In her complaint for divorce she asked for alimony for the support of herself and to pay the expenses of her expected sickness, and also asked for the custody of her unborn child.

The court found the facts stated in the complaint to be true; granted the divorce; and awarded her alimony and also the custody of the unborn child.

Among other things, it is urged by counsel for plaintiff in error that the trial court erred in hearing and considering the special plea in abatement, which was filed by two of the defendants after they had joined with the other defendants in filing an answer to the merits of the case.

Counsel for plaintiff in error concede that their client’s right to maintain an action to contest the will may be properly raised and determined on a motion in the nature of a plea in abatement, but they insist that such plea was waived in the case at bar by reason of the fact that all. of the defendants filed an answer to the merits of the case.

In a suit to contest a will the statute requires that an issue be made up and tried as to whether the paper writing in question is or is not the valid last will and testament of the testator. This,- therefore, is the only issue contemplated in the final submission of’the case to the jury.

The question of plaintiff’s interest or right to maintain the suit should therefore be made by a special plea, and should be tried and determined before trial on the issue as to the validity of the will. The answer which was filed in this case is in substance a general denial, and is therefore not inconsistent with a plea in abatement, for the reason that such plea also denies the allegations of the petition as to the heirship of plaintiff in error.

If the plaintiff in error is not an heir of the decedent, then he has no interest in the subject-matter and cannot maintain this action.

We think the trial court properly heard the case upon the plea in abatement.

Upon the question of the heirship of plaintiff in error, after a careful consideration of the record, and especially of the acts and the conduct of the said William M. Wilson, we are of opinion that the evidence establishes the fact that the said William M. Wilson was the father of plaintiff in error, and that the marriage in question, under the circumstances disclosed by the record, was an acknowledgment upon the part of William M. Wilson of the paternity of this child.

Upon the marriage of the said Wilson and Ida J. Dawes, the unborn child became legitimate and was capable of inheriting from the father under the common law.

In the case of Miller v. Anderson, 43 Ohio St., 473, the opinion of Judge Atherton contains a general discussion of the common-law rule in respect to the legitimacy of children.

We think this discussion applies to heirship and the right of inheritance, although the issue in that case was limited to proceedings under the bastardy statutes.

■ Among the authorities discussed by Judge Atherton in the decision above referred to is the case of Tioga County v. South Creek Township, 75 Pa. St., 433, in which the following language is used:

“That the parents should be permitted to bastardize the child, is a proposition which shocks our sense of right and decency, and hence the rule of law forbids it.”

Further mention is also made by Judge Atherton of the following rule:

“This doctrine is recognized in Parker v. Way, 15 N. H. Rep., 45; Davis v. Houston, 2 Yeates, 289; Page v. Dennison, 1 Grant’s Cases, 377; S. C., 29 Pa. St., 420, in which case the court in addition hold that: Whether the child is begotten in or out of wedlock, if marriage precedes the birth, the presumption of paternity is the same, and it can only be bastardized by proof of non-access.’ ”

There is also discussed in this decision the case of State v. Romaine, 58 Ia., 48, wherein the rule is announced that “if á woman be pregnant at the time of the marriage, and if pregnancy be known to the husband, he should be conclusively presumed to be the father.”

Reference is also made therein to the case of State v. Herman, 13 Ired., 502, wherein the supreme court of North Carolina holds :

“A child born in wedlock, though born within a month or a day after marriage, is legitimate by presumption of law, and where the mother was visibly pregnant at the marriage, it is a presumption juris et de jure that the child was the offspring of the husband.”

Without further citing authorities, we think the rules above announced are well established.

Under the common law, the child was considered as being in legal existence and capable of inheriting as a legitimate child from the date of the marriage between the natural father and mother, irrespective of shortness of time of birth of the child after such marriage.

If the unborn child is legitimatized by the act of marriage, then in our opinion the child cannot thereafter be bastardized or rendered illegitimate by any subsequent -act of either of its parents.

It is in effect conceded by counsel for defendants in error that if the decree for divorce between the father and mother of this child had been withheld until after the birth of the child, the child would then be legitimate, as it would have been born during actual wedlock.

Under the statutes of our state, as well as under common law, we are of opinion that a decree for divorce between the parties does not affect the status of children, and we think this rule would include children en ventre as well as those actually born.

It appears from the record that the decree for the divorce in question does not undertake to bastardize the unborn child, but recognizes it as a feature of the marriage and fixes its custody.

The law favors the legitimacy of children, and it would be a harsh rule which would permit a decree for divorce between the parents to so operate as to bastardize an unborn child that would have been considered legitimate had the entry of divorce been withheld a day, a week, or for any period of time after the birth of the child.

We think a holding to the effect that a decree for divorce can operate to change the status of an unborn child is contrary to the humane policy of the law.

We have considered this case as one arising under the Ohio law, for the reason that the law of Indiana, to which reference is made, is. not plead nor proven, and the presumption is that the law of the forum controls the rights of the parties. Erie Rd. Co. v. Welsh, 89 Ohio St., 81; Coffinberry v. Blakeslee, 22 C. C., N. S., 34, and Wettstein v. Bankers’ Natl. Bank, 20 C. C., N. S., 204.

Upon a careful consideration of the entire record and the authorities cited, we are forced to the conclusion that the judgment of the trial court is contrary to the evidence. Such judgment will therefore be reversed and the cause remanded for further proceedings.

Judgment reversed.

Allread and Ferneding, JJ., concur.


text:
    Petrie v. The Garfield Savings Bank Co. et al.

      Check — Acceptance — Payment—Banks and banking—Deposit in branch bank, effect of—Acceptance and payment of check by bank, what constitutes — Passing to credit of depositor amount of check deposited, effect of.

    1. A deposit of a check in one of the branch banks of the banking company upon which it is drawn is the equivalent of depositing it in such company’s main bank. This is true without regard to what the practice may be with reference to putting through the clearing house checks deposited in the branch banks.
    2. Where a person in whose favor a check is drawn deposits such check in the bank upon which it is drawn, and the bank passes to the credit of such person in his checking account the amount of the check, such action on the part of the bank amounts not only to an acceptance but also to a payment of the check.
    (Decided July 2, 1917.)
    Error: Court of Appeals for Cuyahoga county.

      Mr. Walter J. Hamilton and Mr. H. H. Henry, for plaintiff in error.

      Messrs. Ford, Snyder & Tilden, for defendants in error.
   Gorman, J.

The plaintiff in error, John R. Petrie, commenced this action against defendants in error in the common pleas court of Cuyahoga county. After filing a petition and amended petition, he filed by leave of court a second amended petition, in which he sets out that defendant is a corporation organized under the banking laws of the state of Ohio, and engaged in the general banking business in the city of Cleveland; that on the 17th day of November, 1915, one James Lawson executed and delivered to plaintiff his check drawn upon the defendant bank for the sum of $208, on account of services for work and labor performed by the plaintiff as a plumber; that at the time said Lawson executed and delivered to plaintiff said bank check, which was dated November 16, 1915, said Lawson had on deposit in one of the branch banks of the defendant company the sum of $700. Plaintiff further avers that on the 18th of November, 1915, he deposited said check for $208 in the defendant bank, at the Superior avenue and East 105th street branch, to the credit of his checking account, and at the time of such deposit said bank had to the credit of said Lawson in his checking account and subject to payment of plaintiff’s check an amount more than sufficient to pay said check in full. Plaintiff further avers that on the 19th day of November, 1915, at 1:25 p. m., said James Lawson filed a voluntary petition in bankruptcy in the district court of the United States for the northern district of Ohio, eastern division, and was immediately thereafter declared a bankrupt under the bankruptcy act of the United States; that upon learning of the filing of said petition in bankruptcy said defendant bank refused payment of said check, charged plaintiff’s account with the same, and returned it to the plaintiff unpaid, and now refuses to pay the same, though payment has been demanded by plaintiff.

Plaintiff set out other matters in his petition to the effect that said Lawson had received said sum of $700 from the owner of the building which said Lawson was constructing, and had agreed and promised to deposit said money in the defendant bank for the purpose of paying the plaintiff and other workmen and materialmen who performed labor and furnished material on said building. He further averred that said fund was a trust fund and that he had an equitable interest in said $700 to the extent of the amount of the check given him by said Lawson. Plaintiff further averred in his petition that the only claim which the defendant bank had upon said fund so deposited-by Lawson, to-wit, said sum of $700, arose from a note of $400 made by said Lawson and his wife to said bank; but that the same was not due when the petition in bankruptcy was filed or when said fund was deposited.

Plaintiff prays that he may be found to have such equitable lien upon the balance in said bank to the credit of said Lawson at the time of the filing of the petition in bankruptcy as may be necessary to satisfy his said check, and that the bank may be ordered to pay such amount, to-wit $208, to plaintiff, and for all other relief that he may be equitably entitled to.

To this second amended petition the defendant demurred, and the court below sustained the demurrer and entered judgment in favor of the defendant, and ordered that the defendant go hence without day and recover its costs; to all of which the plaintiff excepted.

The principal question presented by the second amended petition and the demurrer thereto, which was not really argued by counsel in their briefs, but which was suggested by the court at the time of the oral argument, was this: Does the petition show, first, that the plaintiff was entitled to have the check credited to him as the bank credited it?

The averments of the petition show that the check given by Lawson to Petrie was not only accepted by the bank, but was paid, when the bank passed to the credit of Petrie’s checking account the face value of the check, $208. This can be construed in no other light than as an acceptance and payment, in view of the fact that the check was drawn on the defendant bank itself. If it had been drawn on another bank it might be claimed that the check was taken for collection. The mere fact that the check was deposited in one of the branch banks of the defendant company makes it no less a check drawn on the defendant bank, and, whatever the practice may have been or may be with reference to putting through the clearing house checks deposited in the branch banks, we hold as a matter of law that the deposit of this check in one of the branch banks of the defendant company was the equivalent of depositing it in defendant’s main bank, and that it was a payment by it of said check when it credited Petrie’s checking account with the amount of this check.

The negotiable instruments act, Section 8290, General Code, defines a check as “a bill of exchange drawn on a bank payable on demand.” And Section 8293 reads as follows: “When the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon.”

Section 8290, General Code, further provides:

“Except as herein otherwise provided, the provisions of this division applicable to a bill of exchange payable on demand apply to a check.”

Section 8237, General Code, provides:

“The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer.”

We think there can be no question in this case but that when the branch bank of the defendant company passed to the credit of Petrie in his checking account the amount of this check, $208, drawn by Lawson, it thereby not only accepted but paid the same. This transaction was the equivalent of paying over the counter to Petrie $208, and Petrie immediately depositing the $208 of currency to his credit in this branch bank.

The bank was not justified, the day following, in sur-charging Petrie’s account with the $208 which it had credited him on receiving the check the day before. Its only claim for doing this, under the averments of the second amended petition, arose from the fact that Lawson, the drawer of the check, had executed and delivered to the bank a note for $400, which note was not yet due. If the note had been due or past due, and the bank had not accepted and paid the check, it would have had a right to offset the amount of its indebtedness of $400 against the balance due Lawson in his checking account in the bank. But the bank in this instance was not entitled to set off the $400 against Petrie’s check, nor did it attempt to do so until the day after it had accepted the check and paid the same to Petrie. If Lawson had brought an action to recover the $700 in the bank due him, the bank could not at that time by cross-petition have set off its $400 note, because there was no set-off or claim due it at that time. The note had not yet matured, and it could only have a set-off in an action brought against it on a claim which hád matured.

We think the principles here enunciated will be found fully discussed and approved in the following cases: C., H. & D. Rd. Co. v. Metropolitan Natl. Bank, 54 Ohio St., 60; Metropolitan Natl. Bank v. Lloyd, 90 N. Y., 530; Oddie v. Natl. City Bank, 45 N. Y., 735, 741; Covert v. Rhodes, 48 Ohio St., 66; Bank v. Brewing Co., 50 Ohio St., 151, and Blake v. Hamilton Dime Sav. Bank Co., 79 Ohio St., 189.

On the question of the right of the bank, the defendant in this case, to set off its claim against the amount credited to Lawson in its bank at the time he filed a petition in voluntary bankruptcy, see Fuller v. Steiglitz, Assignee, 27 Ohio St., 355.

For the reasons stated, we are of the opinion that the court of common pleas erred in sustaining the demurrer to the second amended petition; and we do not deem it necessary to consider the question raised by the second amended petition, that the $700 deposit by Lawson was a trust fund, as there is nothing in the pleadings to indicate that the bank had any knowledge that the money was deposited as a trust fund.

Judgment of the common pleas court reversed.

Judgment reversed.

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

Judges of the First Appellate District sitting in place of Judges Grant, Carpenter and Lieghley, of the Eighth Appellate District.


author: Liegi-iley, J.

text:
    Keifer v. The Cleveland Railway Co.

      Negligence—Proximate cause — Concurrent causes—Directed verdict— Passenger, who is—Injury by interveiung object.

    1. There may be more than one proximate' cause of an injury.
    2. Where concurrent causes are the immediate and efficient cause of an injury, it is not competent to take one of them away from the other, and say that it and not the other was the proximate cause of the accident.
    3. Where two men are standing near a street car track, in a space used by passengers waiting to board cars, and the end of a •street car being operated on a curve at a prohibited rate of speed strikes one of the men and hurls him against the other, injuring the latter, 'it is error in an action for damages by the •injured man against the street car company, to direct a verdict for defendant at the close of plaintiff’s evidence disclosing such facts, the case being one that should have been submitted to the jury.
    (Decided October 22, 1917.)
    Error: Court of Appeals for Cuyahoga county.

      Mr. T. S. Dunlap and Mr. F. F. Klingman, for plaintiff in error.

      Messrs. Squire, Sanders & Dempsey and Mr. William L. Day, for defendant in error.
   Liegi-iley, J.

The parties stood in the same order below.

It is a matter of common knowledge that the Public Square in Cleveland, Ohio, is divided into four sections by intersecting streets; that cars of the defendant serving the west and southwest parts of the city loop around the northwest section of the Public Square; that on the westerly side of the northwest section of the square there are two southbound tracks with a devil strip between them of approximately ten feet in width;'that passengers or prospective passengers take position on this devil strip waiting to board cars that use the easterly southbound track; and that at or near Superior avenue these two southbound tracks converge and lead into and upon Superior avenue and said cars proceed westerly on the northmost track on Superior avenue. For the most part, and so far as necessary, the facts above stated are disclosed by the proof in this case.

As was his practice, the plaintiff, Jacob Keifer, on the 18th day of August, 1914, boarded a St. Clair avenue car near his home in the east end, purchased a transfer to a West 14th street car, and proceeded to the Public Square where he alighted and walked over to the said devil strip on the west side of the northwest section of the square above described. He took position on said devil strip with the purpose in mind of boarding a West 14th street car, then using this loop by reason of the damaged condition of the Central Viaduct. While he was so standing there an Italian approached him and excitedly inquired about a car, repeating his inquiry and gesticulating for some little time. While the two were so standing there, a city street car passed by them, which'was followed by an interurban car operated at the time and place in question by the defendant. The rear end of said interurban car extending far over the rail in making the curve, and proceeding at the rate of ten miles per hour around the curve into and upon Superior avenue, struck the said Italian, hurling him against plaintiff, who was then and there severely injured by being hurled to the pavement by the force of the said Italian striking him.

It is disclosed by the proof that the said street car was operated in violation of a traffic ordinance of the city which provides that street cars shall travel at no greater rate of speed than four miles per hour in turning a corner of a street, and it is urged that this is negligence per se on the part of defendant, upon the authority of Schell v. DuBois, Admr., 94 Ohio St., 93.

It is further urged by the plaintiff that, by reason of the fact that the body of an interurban car extends farther beyond the rear trucks than does the body of the ordinary street car, the sweep of the rear end of an interurban car in making a curve is much greater than that of a city car; that the motorman saw or should have seen the perilous position of the Italian, whose name is unknown, as he approached and passed the place where the plaintiff and the Italian were standing; and that the motorman should have known that the rear end of this car, in making the curve, would strike the Italian.

The plaintiff rested his case in the court below upon the testimony of the plaintiff himself and the ordinance above referred to admitted in the proof.

The court directed a verdict for the defendant, and from this judgment error is prosecuted to this court to reverse.

The testimony of the plaintiff tends to establish contributory negligence of the Italian in facing eastward with his back to the westerly southbound track and not using his senses for his own safety at the time.

Undisputed testimony of the plaintiff establishes the negligence of the defendant in operating its car in violation of said traffic ordinance.

The question presented to us for decision, under the claimed admitted facts in this case, is, What was the proximate cause of the injuries which the plaintiff sustained, or, should this question have been submitted to the jury for answer ?

Apparently it was the judgment of the court below that the negligence of the Italian proximately caused the injury, and, assuming the facts to be admitted, a decision of this question was for the court, under authority of L. S. & M. S. Ry. Co. v. Liidtke, 69 Ohio St., 384.

It is claimed by the plaintiff that at the time he was injured he was a passenger and that the defendant owed to him the duty of exercising more than ordinary care for his safety. We do not feel that in a decision of the principal question before us it is absolutely necessary to determine whether or not the plaintiff was then a passenger. However, at the time plaintiff was injured he was standing in a place of safety on the devil strip and at a place where the company is accustomed to take on passengers. And it is evident that he would not have been injured if the rear end of the interurban car had not struck the Italian, hurling him against the body of the plaintiff, or if the Italian had not negligently placed himself in the path of the rapidly turning street car. At the time, the plaintiff was in the process of transferring from the St. Clair car to the Fourteenth street car, and had in his possession a transfer. The greater weight of authority is to the effect that the plaintiff was then, in fact, a passenger. Cincinnati Traction Co. v. Holzenkamp, 3 N. P., N. S., 537, 540; affirmed, 74 Ohio St., 379, and 1 Nellis on Street Railways (2 ed.), Section 254.

Something was said in argument to the effect that the cases in which the intervening object caused the injury was inanimate are to be distinguished from the case at bar for the reason that in this case the intervening object was a rational human being. If there be any distinction, it seems to us that to negligently injure a human being, thereby resulting in injury to another, without fault on his part, would be more culpable than to injure in the first instance an ' inanimate or irrational object. We do not think that the authorities are in accord with this suggestion.

Attention is called to the case of McCormack, Admx., v. Nassau Elec. Rd. Co., 16 App. Div., 24, (44 N. Y. Supp., 684), in the syllabus of which the facts are sufficiently stated, in conjunction with the law of the case. The syllabus reads as follows:

“The act of a mo tor man in starting up an electric car at a time when the driver of an ice wagon, which is distant from the car about 133 feet, and is in plain sight of the motorman, is beginning to turn his wagon preparatory to crossing the street, and in so operating the car that it collides with the wagon, inflicting injuries upon a person employed thereon as a helper, who has jumped upon the rear step of the wagon as it was turning, constitutes negligence on the part of the railway corporation.
“A refusal by the court to charge the jury, in such a case, that if they find that the accident was occasioned in part by the negligence of the defendant, and in part by the negligence of the driver of the ice wagon, the plaintiff (the helper) cannot recover, does not constitute an error requiring the reversal of a judgment in favor of the plaintiff, where the defendant, although it bases such request upon a claim that the driver of the wagon and his helper were engaged in a joint venture of their own in the ice business, makes no request to have the question of the existence-of such a joint venture between the parties submitted to the jury.”

See also Pullman Palace Car Co. v. Laack, 143 Ill., 242, 261, and authorities hereinafter cited.

If it be claimed that a showing to the effect that the Italian was negligent and that his negligence directly-contributed to cause the injury of the plaintiff, to such an extent that the Italian could not recover from the railway company for his injuries, precludes the plaintiff from recovering from the defendant, we are unable to concur in that claim. We are unable to concur for the reason that there may be more than one proximate cause of an injury.

Quoting from the syllabus in the case of Geary v. Metropolitan St. Ry. Co., 82 N. Y. Supp., 1016, (84 App Div., 514; affirmed 177 N. Y., 535): than one proximate cause of an accident.” See also Phillips v. N. Y. C. & H. R. Rd. Co., 127 N. Y., 657.

“A requested instruction in'an action for death of a fireman occasioned by collision of the fire truck on which he was riding and a street car, that, if the proximate cause of the collision was the negligence of the driver of the truck, and the collision would not have occurred had he exercised reasonable care, plaintiff could not recover, is bad — any contributory negligence of the driver not being imputable to deceased — because there may be more

In the case at bar, was it the negligence of the Italian alone that caused the injury to plaintiff? Or, was it the negligence of the defendant alone that caused it? Or, was it the combined and concurrent negligence of both that caused the injury?

In the case of Zeihr v. The Maumee Paper Co., 7 C. C., N. S., 144, the facts are briefly as follows:

Zeihr was employed by the defendant to operate a certain “beater” machine, which machine was used for the purpose of beating paper soaked with water preparatory to remanufacture of the same. In the construction of said machine there were two cogwheels exposed and unguarded on the outside of the machine. Water was spilled from various machines that were on the floor, so that the floor was at all times slippery. The plaintiff slipped on the floor, fell forward, and his hand was caught in the cogwheels and injured. He filed a petition in the common pleas court, charging the defendant with negligence in permitting said machine to become defective, in that it could not at the time be thrown out of gear, and in not guarding the same. The trial court directed a verdict on the ground that it was the slipping of the plaintiff on the floor that was the proximate cause of his injury and not the alleged negligence of the defendant. This judgment was reversed.

The second paragraph of the syllabus reads as follows:

“Where concurrent causes, as in this case, are the immediate and efficient cause of an injury, it is not competent to take one of them away from the other, and say that it and not the other was the proximate cause of the accident.”

Quoting from the opinion at page 148, the court says:

“Now it seems to us that the true rule is, as we gather it from the authorities, that where, in case of master and servant, like this case, the negligence of the master is one of the causes of the servant’s injury, is one of the causes without which he could not have been injured as he was, that the fact that the negligence of a third person is also a cause of his injury, or the fact that some inevitable or unavoidable accident occurring at the same time was the cause of his injury, or some inanimate object, that, nevertheless, if the master’s negligence may be said to be one of the proximate causes of the man’s injury, that the master is not excused, because the negligence of some one else has contributed, as well as his own negligence, or because some accident, some unavoidable accident, ^happening has also contributed to the servant’s injury, if it appears that without the negligence of the master the accident could not have happened. Now it seems to us that this rule laid down in many of the authorities is a just and reasonable rule. Many accidents are caused by two or more concurrent causes.”

In the opinion will be found many authorities supporting this language of the court.

Quoting from the syllabus in the case of John R. Gray et ux. v. Washington Water Power Co., 27 Wash., 713:

“Where plaintiff was injured as a result of her horse running away and dashing the wheels of her buggy against the projecting rails of a street railway, the action of the court in setting aside a verdict in her favor and granting a new trial, on the ground that the running away of the horse and the loss of its control was the proximate cause of the accident, was erroneous.”

The question is: Was the negligence of the Italian, the street car company, or both, the proximate cause of the injuries which plaintiff sustained? Under the circumstances of this case, we are not at all certain that reasonably prudent persons would answer this question in the same way. This being true, we conclude that this case should have been submitted to the jury.

It may be claimed that the same result would have obtained if the street car had been propelled at a legal rate. Of course, if the same result would have followed the operation of the car at four miles per hour as did result by operating it at ten miles per hour, then speed did not have anything to do with the results and the negligence of the railway company could not be the proximate cause of the injury; but, in the determination of this question, we are of the opinion that reasonably prudent minds may reach different conclusions, and, therefore, that it is a question for the jury.

See cases above cited; also C., C. & C. Rd. Co. v. Crawford, Admr., 24 Ohio St., 631; M. & C. Rd. Co. v. Picksley, Id., 654, and Steubenville & Wheeling Traction Co. v. Brandon, 87 Ohio St., 187, 194.

For error in directing a verdict for defendant at the close of the plaintiff’s evidence, the judgment of the court below is reversed and the cause remanded, with costs assessed against the defendant in error.

Judgment reversed, and cause remanded.

Grant and Carpenter, JJ., concur.


author: Jones, P. J.

text:
    DuBrul v. DuBrul et al.

      Wills—Executors—Trustees—Right to advancements—Interest in estate, what constitutes.

    Where under the terms of a will general authority is given to the trustees of the estate to make such advancements to any of the sons of testator as may seem wise 'to said, trustees, and one of the five sons is given no interest in the estate of his father and is not entitled to share in its distribution, such son cannot compel the executors to give him a statement of the advancements made to him and to his brothers by his father or permit an examination of decedent’s books to obtain such statement.
    (Decided July 9, 1917.)
    Error : Court of Appeals for Hamilton county.

      Mr. Charles F. Dolle, for plaintiff in error.

      Mr. Anthony B. Dunlap, for defendants in error.
   Jones, P. J.

The will of Napoleon DuBrul appoints his widow and his son Ernest as executors, and directs the payment of his debts as soon as convenient after his decease. All the rest and residue of the estate is given to his wife and four of his sons in trust, to manage and control during the lifetime of his wife, and out of same to provide for her support.

The third item is as follows:

“Item III. I authorize and empower my said Trustees to make such advancements to my sons, or any of them, as may seem to said Trustees to be wise, and as the condition of my estate shall justify; and I hereby direct my Trustees to charge each of such sons with the amounts so advanced as part of their several distributive shares of my estate.”

The fourth item directs the trustees upon the death of his wife to divide his estate into five equal parts, four of which parts are devised and bequeathed to his four sons, Ernest, Davilla, Clarence and Telford, one part to each, “subject however to such advancements as may have been made to them by my trustees as herein provided, or by me.” It also makes provision for the care of the widow or of the issue of any of said four sons, in the event of the death of a son before the death of testator’s wife. It then recites:

“I have made advancements, and may in the future make advancements to some of my sons. The amounts so advanced will be found charged to such sons in my private books, to which they have been transferred from private papers or memoranda, and from the books of The Miller, DuBrul & Peters Mfg. Company, and of the Summerside Poultry Farm.
“I direct and will that my Trustees, at the time of the distribution of my estate, as herein provided, shall charge such son or sons in computing his or their distributive shares, with such sum or sums as may respectively be shown by my books, papers, etc., to be due from each, and deduct the same from the share or shares such son or sons would otherwise receive, so that my bounty to each may be exactly equal.”

Then after reciting certain charges and credits as to his son Orville, he provides as follows:

“As I consider that Orville has proved himself so lacking in business judgment as to be incapable of properly handling or caring for any share of my estate that might be coming to him on final distribution, I direct and will that my Trustees shall retain in their hands the one-fifth part remaining after distributing the four-fifths as above provided in trust however for the following purposes: to manage, control, and look after said part; to use the income, if any, and the principal, if in their judgment that be proper, to provide suitable support for Nan McDaniels DuBrul, wife of my son, Orville, and their children Napoleon and Marguerite DuBrul, as well as education for said children ; and to pay said one-fifth part, less all deductions for advances heretofore made, or hereafter to be made, or as much as may then remain, in equal parts to my said grandchildren Napoleon and Marguerite DuBrul, when the one latest to arrive at legal age shall have reached that- age.”

Orville N. DuBrul, now as plaintiff in error, seeks to reverse the judgments of the common pleas and probate courts refusing to require the executors to give to him a statement of the advancements made to him and to his brothers by his father and entered by him in his private books, or to permit an examination of decedent’s books to obtain such statement.

Plaintiff in error claims that, regardless of his ultimate interest in his father’s estate, the trustees are authorized in their discretion to make advancements to him under the provisions of Item III, and for that reason he is entitled to see or be furnished a statement from the books of decedent. The application was made to the executors, not to the trustees. It is therefore premature at least, as it appears that the estate has not yet been settled by the executors and turned over to the trustees, with whom plaintiff in error would deal if his claim were valid.

But in the opinion of this court the probate court was right in deciding that Orville N. DuBrul has no interest in the estate of his father Napoleon DuBrul by the terms of his will, and for that reason he is not entitled as a matter of right to be furnished such a statement or to examine such books. Although the language of Item III is sufficiently broad to apply to any of the five sons including Orville, the trustees would not under its terms be justified in making any advancement to him because they would be required to charge the amount so advanced to his distributive share of the estate. Orville has no such distributive share, and they have no authority to make any such charge against that of his wife and children who take the one-fifth part which might otherwise have gone to him.

Plaintiff in error has no interest in the estate of Napoleon DuBrul, and the judgment is therefore affirmed.

Judgment affirmed.

Gorman and Hamilton, JJ., concur.


text:
    The State, ex rel. Turner, Atty. Gen., v. The Union Casualty Insurance Co., of Philadelphia.

      Insurance—Deposit with state superintendent—Section 9510, General Code — Administration and distribution of fund — Rights of Ohio policy holders therein.

    1. A fund deposited with the superintendent of insurance of the state of Ohio, as required by Section 9519, General Code, should be administered by the superintendent and distributed directly to the policy holders entitled to share therein.
    2. The fact that such fund is claimed by an assignee, or other representative of an insolvent corporation, does not supersede the jurisdiction of the court to order the distribution made 'by the superintendent of insurance directly to the policy holders.
    3. Such deposit is required to be held for the primary benefit of Ohio policy holders.
    (Decided November 30, 1917.)
    Appeal : Court of Appeals for Franklin county.

      Messrs. Vorys, Safer, Seymour & Pease, for appellant.

      Messrs. White, Johnson, Cannon & Neff; Mr. W. L. Parmenter; Messrs. Gordon, Morrill & Gin-ter; Messrs. Morton, Irvine, Turner & Blanchard; Messrs. Half hill, Quail & Kirk; Mr. Aaron A. Perris and Mr. L. H. Shipman, for appellees.
   Kunkle, J.

The Attorney General of the State of Ohio brings this action under Section 641, General Code, for the purpose of determining the rights of the policy holders of The Union Casualty Insurance Company of Philadelphia in and to a certain deposit of $50,000 made by said company with the Superintendent of Insurance of the State of Ohio, as required by Section 9510, General Code.

It is conceded that the said insurance company is insolvent, and the controversy arises between the receiver appointed in the state of Pennsylvania, the domicile of said company, and also a certain policy holder of Pennsylvania, upon the one hand, and, upon the other hand, by various policy holders of said insurance company, residents of the state of Ohio, who claim the said fund by virtue of contracts made within the state of Ohio.

We have carefully considered the very helpful briefs which have been filed by counsel. We shall not undertake to discuss in detail the authorities and statutes cited therein, but will merely announce the conclusion at which we have arrived, after an examination of such authorities and statutes.

In brief, the questions presented for determination are:

1. Has the Insurance Commissioner of Pennsylvania, acting as receiver of said company in the state of its domicile, any right to the fund in question?

2. Should the funds realized from said deposit of $50,000 be applied primarily to the payment of the liability in favor of the Ohio policy holders, or should it be applied to the payment of the liability of all policy holders, irrespective of where they may reside ?

The deposit in question is required by Section 9510, General Code. The provisions of said section, in so far as they are pertinent to the question in issue, are as follows;

“A company may be organized or admitted under this chapter to * * * guarantee the performance of contracts other than insurance policies, and execute and guarantee bonds and undertakings required or permitted in all actions or proceedings, or by law allowed; make insurance to indemnify employers against loss or damage for personal injury or death resulting from accidents to employes or persons other than employes and to indemnify persons and corporations other than employers against loss or damage for personal injury or death resulting from accidents to other persons or corporations. But a company of another state; territory, district or county admitted to transact the business of indemnifying employers and others, in addition to any other deposit required by other laws of this state, shall deposit with the superintendent of insurance for the benefit and security of all its policy holders, fifty thousand dollars in bonds of the United States or of the state of Ohio, or of a county, township, city or other municipality in this state, which shall not be received by the superintendent at a rate above their par value. The securities so deposited may be exchanged from time to time for other securities. So long as such company continues solvent and complies with the laws of this state it shall be permitted by the superintendent to collect the interest on such deposits.”

Sections 641, 642 and 643, General Code, define the procedure which shall be had in case of insolvency of the company making the deposit. These sections are as follows:

“Sec. 641. If any company, corporation, or association required by law to make a deposit with the superintendent of insurance, or other state officer, to secure the contracts of such company, corporation, or association, or for any other purpose, fails to pay any of its liabilities upon such contracts, or other obligations, according to the terms thereof after the liability thereon has been determined, or if such company, corporation, or association, having ceased to do business within this state, leaves unpaid any such liability or has become insolvent, the attorney general of the state, on behalf of the superintendent of insurance, or such other officer, and upon the application of any person entitled to participate in such deposit, or the proceeds arising therefrom, shall commence a civil action in the court of common pleas of Franklin County, making the company, corporation, or association, a party defendant, to determine the rights of all parties claiming any interest in such deposit, to subject the deposit to the payment or satisfaction of all liabilities and to distribute such fund among the persons entitled thereto.
“Sec. 642. Upon the filing of the petition in such case, the superintendent of insurance, or other officer, shall cause to be published for six consecutive weeks in three papers of general circulation within the state, one of which shall be published at the seat of government, a notice containing a succinct statement of the object and prayer of the petition in such action, and the time within which persons claiming to have an interest in such fund shall be required to answer.
“Sec. 643. The. clerk of such court shall forward a copy of such notice to the last known address of such company, corporation or association. The code of civil procedure shall govern such proceedings in so far as it is applicable, and upon the hearing of the cause, such order, judgment or decree shall be entered by the court as is deemed just and equitable.”

Section 656, General Code, reads as follows:

“Sec. 656. When any insurance company or corporation other than life, which has made a deposit with the superintendent of insurance, intends to discontinue its business in this state, the superintendent, upon application of such company or corporation, shall give notice at its expense of such intention at least once a week for six weeks in three newspapers of general circulation in the state. After such publication, the superintendent shall deliver to such company or association its securities held by him, if he is satisfied by the affidavits of the principal officers of the company and on an examination made by him or by some competent, disinterested person or persons appointed by him, if he deems it necessary that all debts and liabilities which are due, or may become due, upon any contract or agreement made with any citizen or resident of the state of Ohio, are paid and extinguished.”

From a consideration of the said statutes and the authorities, we think the law of this state is that the said fund so deposited should be administered by the superintendent of insurance of this state, under the direction of the court, and should be distributed directly to the policy holders entitled to share therein.

The fact that the fund is claimed by an assignee, or other representative of an insolvent corporation, does not supersede the jurisdiction of the court to order the distribution made by the superintendent of insurance directly to the policy holders.

In the case of State, ex rel., v. Matthews, 64 Ohio St., 419, the syllabus is as follows:

“1. Where securities have been deposited with the Superintendent of Insurance, by an insurance company, to be held by such superintendent in trust for the benefit and protection of, and as security for, the policy holders of such company, the assignee of such company, under our insolvent laws, cannot recover such securities from such superintendent without first showing that such company is no longer liable to any of its policy holders.
“2. It is the official duty of such superintendent, in the event that such company becomes insolvent, to act, and perform his trust, by distributing the funds so deposited with him, pro rata among the several policy holders, and when their just claims shall all be satisfied, to pay the balance, if any, to the company, or its assignee or other successor.'”

See also Falkenbach v. Patterson, Recr., 43 Ohio St., 359.

In view of the above decisions we are clearly of the opinion, as previously stated, that the fund in question should be administered in the present proceedings, and should be distributed directly to the policy holders entitled thereto, and that the same should not be paid to the representative of the insurance company appointed in the state of Pennsylvania.

In regard to the claim of James L. Stuart, the policy holder residing in the state of Pennsylvania, we are of opinion that his failure to file his claim within the time fixed by the public notice of the superintendent of insurance does not bar a consideration of the merits of his claim.

We think the provision fixing the time for filing claims merely fixes a “Rule Day,” which under the rules of civil procedure is subject to being opened up in a proper case, at the discretion of the court having jurisdiction of the case. We do not think this provision was intended as a statute of limitation, but that it merely fixed a time when the court might proceed to the consideration of the claims and the distribution of the fund.

This brings us to the question whether the foreign policy holder is entitled to participate in the distribution of the said fund so deposited.

This court formerly had before it for consideration, in the case of Hogan, Atty. Gen., v. The Empire State Surety Co., ante, 172, the question now presented. In that case this court stated:

“It is evident, however, that the deposit provided for in Section 9510, General Code, was intended to be held for the benefit of the policy holders whose rights grow out of contracts made and business transacted in the state of Ohio.”

We have carefully considered Sections 95.10, 641, 642, 643 and 656, General Code, as they existed at the time the rights of the Ohio claimants to this fund accrued, and have also examined other sections of the statutes in pari materia with the sections above quoted, and after such consideration we cannot escape the conclusion that the said sections of our code, when read together, reflect an intention upon the part of the legislature to require said deposit to be held for the primary benefit of Ohio policy holders. Where the legislature provides for a deposit as a condition precedent to the right of a foreign corporation to do business within the state, we think the primary inference is that such deposit was required for the purpose of protecting the policy holders whose policies were issued within the state, and, in order to extend the benefit of such deposit to the general policy holders of the company, we think the statute should clearly express such intention.

It is urged that the amendment to Section 9510, General Code, of date April 25, 1904, striking out the provision as to the policy holders residing in this state and inserting the provision “for the benefit of all its policy holders,” clearly shows an intention upon the part of the legislature to extend the protection of the deposit to all the policy holders of the company, irrespective of the state wherein such policies may have been issued.

If Section 9510, General Code, was the only section to be considered, then there would be much force in this contention; but when all the statutes relating to such deposit, its distribution, and discontinuance of business, are considered, then we think it does not appear that the legislature intended to extend the benefit of such deposit to policy holders generally.

Counsel for appellant call attention to the recommendations of certain administrative officers of the state in favor of the amendments to the various statutes under consideration. We are of opinion that such recommendations are not conclusive, but that the real intention of the legislature must be deduced from the various acts of the legislature relating to the deposit under consideration.

Entertaining these views, the demurrers should be sustained.

Demurrers sustained.

Allread and Ferneding, JJ., concur.