author: POLLOCK. J.

text:
    CONTRACTS — WILL.S.
    [Carroll (7th) Court of Appeals,
    April 5, 1917.]
    Pollock, Metcalfe and Farr, JJ.
    Ralston v. McBurney.
    1. Promise to Devise Specific Property Based on Valuable Consideration May be Enforced.
    A promise, for a valuable consideration, to make a will, devising specific real estate to a certain person, is valid if evidenced as required by the statute of frauds, and upon failure to perform the promise, specific performance may be had against any one having the title thereto except an innocent purchaser for value.
    2. Devise Based on Valuable Consideration not Revocable in Subsequent Will.
    A will devising real estate, executed and delivered to the devisee in pursuance of a parol agreement by which the testator for a valuable consideration agreed to devise that real estate to the devisee, can not be revoked by a subsequent will so as to escape the obligation, but may be enforced as a contract.
    [Syllabus by the court.]
    Appeal.
    W. L. Handley and D C. DeFord, for plaintiff.

      Me Donald & Oglebee, contra.
   POLLOCK. J.

This case comes into this court on appeal from the eourt of edmmon pleas of this county, and was submitted to the eourt on the pleadings and the evidence.

The action was begun in the court of common pleas by plaintiff against Elizabeth McBurney and T. C. and Levi Blacklege to prevent the defendants from disposing of the real estate described in the petition, alleging that there was an agreement between Elizabeth McBurney and Levi Ralston by which, for a valuable consideration, she agreed to convey this propei-ty to Ralston by her will; that subsequently Miss McBurney, in pursuance of this agreement, made her will and delivered it to Ralston, devising to him this real estate; that after the making of this will, Miss McBurney conveyed the land described in the petition by deed of trust to her eodefendants, T. C. and Levi Blacklege, and made a second will devising this property to other pax-ties and revoking the prior will, and that Elizabeth McBurney so conveyed this property by deed of trust and made a second will for the purposes of fraudixlently avoiding hex* contract and defeating his right to the property under the agreement.

Before the trial of the action in the court below, Elizabeth McBurney died and her codefendants were appointed executors of the second will.

Plaintiff by amended petition then prayed that the property devised to him by the first will he decreed to him in accordance with the agreement made between him and Miss McBurney.

The answer of the defendants, so far as we are now concerned, is a denial of the material allegations of the petition.

Elizabeth McBurney’s deposition was taken prior to hex-death and admitted in evidence and plaintiff Ralston testified at the trial. There is a sharp conflict in the testimony in regard to the agreement for the purchase and conveyance of the property described in the petition. We will not set out or attempt to discuss the testimony, bxxt only the facts relating to the transaction as we have found from the testimony.

Elizabeth McBurney was a maiden lady without any near i>elatives. For some time prior to 1898 Miss McBurney had been taking care of a man and his wife by the name of Patterson. Mr. Patterson died in that year, and by his will he devised property to Elizabeth MeBxxrney of about the amount of $2,500. Near the time of the death of Patterson, Ralston commenced to look after the business affairs of Miss MeBurney. Mrs. Patterson was- an invalid requiring constant care and, after' the death of Mr. Patterson, Elizabeth MeBurney continued to take care of Mrs. Patterson until about 1899. After the death of Mr. Patterson, Thomas Donaldson had been appointed guardian .of Mrs. Patterson, and at the time above referred to trouble arose between the guardian and Miss MeBurney about the eare of Mrs. Patterson and her compensation therefor. A settlement was arrived at between the guardian and Miss MeBurney, Ralston, the plaintiff, representing Miss MeBurney. ■ In that settlement Miss MeBurney was paid, through Mr. Ralston, $.100 in money and a note given by the guardian for $443. After this settlement Miss MeBurney gave Ralston $500 out of the amount received in that settlement for the services he had then rendered her. Mrs. Patterson died in January, 1899. Soon after that, Mr. Donaldson, representing the heirs of Mrs. Patterson, offered the property described in the petition at public sale. Prior to the sale Elizabeth MeBurney and Ralston agreed between themselves to purchase this property jointly, if it could be done for not over $1,600. At this sale it was bid off by Ralston at $1,500.

After the time that this property was bid off by Ralston and before the deed was made, Ralston and Miss MeBurney entered into a further agreement in regard to the property, by which it was agreed that the property should he conveyed by the heirs of Mrs. Patterson to Miss MeBurney, and that Ralston was to apply the $500 already received from Miss MeBurney for services, to the payment of the purchase money, and that Miss MeBurney was to furnish $775, Ralston paying $25 more; that $200 should he borrowed by Ralston, and that Ralston was to care for the property during the lifetime of Miss MeBurney and to attend to any other business that she might desire, and after paying the $200 borrowed to complete the purchase money from the proceeds of the property, Miss MeBurney was then, to have the entire use of the property during her lifetime, and in consideration therefor Miss MeBurney agreed to make a will devising this property to Ralston at her death. 'About the ..first of April-of that, year Ralston, with the money .thus furnished, paid the purchase money and caused the property to be conveyed by the heirs of Mrs. Patterson to Elizabeth McBurney. In April, 1901, Miss McBurney made a will devising this property to Ralston in accordance with her agreement. After she had executed this will she handed it back to him with the remark, “It is of more interest to you than to me.” Some time after the making of this will Miss McBurney conveyed the property described in the petition to her codefendants in trust, and also executed a second will revoking the former will and devising the property described in the petition to others than Ralston. Ralston fully performed his agreement in so far as Miss McBurney would permit him to do so.

. From these facts Ralston is not entitled to have a judgment decreeing this property to him upon the verbal arrangement which was made between him and Miss McBurney, that the title should be placed in her name and then that she should will it back to him. This arrangement was not engrafting a trust upon this property in the hands of Miss McBurney, but it was making a verbal agreement for the conveyance of property to Ralston by the will of Miss McBurney. Such a verbal agreement can not be enforced in this state, although the plaintiff has fully performed his part of the agreement. Howard v. Brown, 37 Ohio St. 400; Crabill v. Marsh, 38 Ohio St. 331; Shahan v. Swan, 48 Ohio St. 25 [26 N. E. 222; 29 Am. St. 517].

It next remains to be determined whether the plaintiff is entitled to relief asked by reason of Miss McBurney having made a will devising this property to Ralston, in pursuance of their verbal contract, and delivering the will to Ralston, which was afterwards revoked by a subsequent will of Mss McBurney.

The provisions of the will which plaintiff claims carries into effect the contract that they made read as follows:

“I give and devise to Levi Ralston, of Mechanicstown, Ohio, the thirty-five acres of land, and appurtenances thereunto belonging and known as the William P. McClain land, and lying and being in the northeast corner of the southwest quarter of section twenty-nine' in Fox township, Carroll county, Ohio. Í give this to him absolutely as his own forever in consideration of his kind attention in looking after, taking care of and attending to my business affairs during my lifetime. ’ ’

While the paper writing executed by Miss McBurney as her will devising the property to Ralston in pursuance of their verbal agreement can not be probated as her last will, the question arises whether this provision of the will may be used in equity to specifically enforce the contract between the parties on the ground that it is written evidence of the agreement, which complies with the statute of frauds.

A verbal contract existed between these parties by which Miss McBurney agreed to devise this land to Ralston, but before a court of equity could enforce this contract, proof thereof is required by written memorandum signed by Miss McBurney. The writing is not the contract but the evidence by which it may be proven.

Wiliams, J., in the case of Heaton v. Eldridge et al. 56 Ohio St. 87, 101 [46 N. E. 638; 36 L. R. A. 817; 60 Am. St. 737]:

“The memorandum, which is merely the evidence of the contract, may be made and signed after the completion, of the agreement, and even a letter from the party to be charged, reciting the terms of the agreement, is sufficient to satisfy the requirements of the statute; but it can not be said that the letter constitutes the agreement; that was made when the minds of the parties met with respect to its terms, and the letter furnishes the necessary evidence to prove the agreement in an action for its enforcement. ”

The paper writing in this ease is in form a will, but it was made for a valuable consideration, in pursuance of their prior verbal agreement, signed by the party to be charged therewith and delivered to Ralston.

Our attention has been called to the case of Bolman v. Overall, 80 Ala. 451 [2 So. 624; 60 Am. Rep. 107], The syllabus of this case reads as follows:

“A will giving property to one in consideration of personal services, rendered and to be rendered to the testator, is valid and may be enforced as a contract after* the testator’s death.”

The facts as set out in the opinion in this case are very similar to the facts in the case that we are now considering. It seems to be a well considered ease and sustains the principle that where a party has entered into a verbal agreement that in consideration of services rendered or to be rendered a party agrees to make their will devising certain property to the other party to the contract, and when the verbal arrangement is completed by the making of a will, that it can not afterwards be revoked by the testator, but may be enforced as a contract.

In the case of Lowe v. Bryant, 30 Ga. 528 [76 Am. Dec. 673], where, by an ante-nuptial verbale agreement, the husband had agreed to afterwards make a will devising to his wife and her children all the property which he might receive from the wife. This became an executed and enforcible agreement, by the execution, after the marriage, of the will, and the husband was excluded from afterwards making a different disposition of this property.

The same principle has been announced in the following eases: Anding v. Davis, 38 Miss. 574 [77 Am. Dec. 658]; Naylor v. Shelton, 102 Ark. 30 [143 S. W. 117-121; 1914 A. Ann. Cas. 394] ; Baker v. Syfritt, 147 Iowa 49 [125 N. W. 998]; Carmichael v. Carmichael, 72 Mich. 76 [40 N. W. 173; 1 L. R. A. 596; 16 Am. St. 528]; Maddox v. Rowe, 23 Ga. 431 [68 Am. Dec. 535]; Schouler on Wills, Section 542.

A person may for a valuable consideration bind himself by contract to make a particular disposition of their real estate by will. Johnson v. Hubbard, 10 N. J. Eq. (2 Stockt. Ch.) 332 [66 Am. Dec. 773].

If the contract is evidenced as required by the statute of frauds, equity will decree specific performance of the contract against the heirs or devisees of the contracting party.

The Supreme Court of this state in Emery v. Darling, 50 Ohio St. 160 [33 N. E. 715], held that specific performance should be decreed under a contract in writing, whereby one sister agreed to give and bequeath to another sister all her real estate and personal property of which she might die siezed or possessed in consideration that her sister should' stay with her as long as she might live.

In the case at bar the contract- to compensate Ralston by devising the property to him was verbal, but the contract was after-wards carried into effect so far as the parties could carry such a contract into effect by Miss McBurney making her will containing a devise as provided for in such verbal contract, and delivering the will to Ralston. This will can not now be probated as a will of Miss McBurney for the reason that it is not her last will and testament, bui we think it should be enforced as a contract made upon a valuable consideration. This is not enforcing a verbal agreement for the conveyance of this property, but it is treating this paper writing, purporting to be a will, as a written' contractual agreement between these parties. The devise refers to the fact that it is made “in-consideration for his (Ralston’s) kind attention in looking after and taking care of and attending to my business affairs throughout my lifetime. ’ ’

Minshall, J., in the opinion in Emery v. Darling, supra, says:

“But it is of the essence of a will that its dispositions should be in the nature of gifts. ' SchoUler on Wills, Sec. 451. When it is made to carry out or perform some obligation, made and entered into by the testator, it is not essentially a will, but in the nature of a contract, and its validity as an instrument will not in such case depend upon its conformity to the requirements of a will, but to those things which the law deems essential to the making of a valid contract.”

The devise in the paper writing executed by Miss McBurney was not made as a gift but to carry out an obligation previously entered into by her, and it conforms to all the legal requirements to make a valid contract for the conveyance of real estate.

“But in equity a will which is once formally made in conformity to some agreement may be upheld as originally executed on the strength of some valuable consideration therein interposed, the-effect of which might possibly be to make the-will practically irrevocable, unless some matter of form, some technical, arbitrary rule-spr ingin g-out of'the statute,--or the -necessary form or construction of the' will should defeat what the parties had mutually intended. There is nothing unlawful in such a compact, nothing contrary to good morals.. ’ ’ Schouler on Wills, Sec. '454; • . ■ . :

Xt can not be said, that enforcing in equity a contract con-tamed in this devise violates the provision of the statute of frauds. It is in writing, ..execu ted, and witnessed by the party to be charged, and delivered. When one party has fully performed a verbal agreement by which the other agreed to compensate him for the consideration received by executing a will devising property to the other and that agreement was carried into effect by the party making the will and delivering it, its provisions become irrevocable and enforeible against the devisees in a subsequent will or the heirs of the party.

Judgment in favor of the plaintiff: decreeing the property described in the petition to him.

Metcalfe and Farr, JJ., concur.


source: Caselaw Access Project

author: LIEGHLEY, J.

license: Public Domain

text:
    AUTOMOBILES — VEHICLES.
    [Cuyahoga (8th) Court of Appeals,
    July 2, 1917.]
    Margaret Henry v. Cleveland (City).
    Carpenter, Grant and Lieghley, JJ.
    L Ordinance Requiring Identification of Owner of Vehicle Colliding with Person or Property Valid.
    An ordinance requiring the driver of a vehicle, colliding with person or property in a street or public place of a municipality, to stop and upon request give the name and address of the owner thereof is enforceable as a means of identification in the proper exercise and control of traffic, notwithstanding by -the giving of such information the driver may become a witness against himself.
    2. Ordinance Requiring Owner of Vehicle after Collision to Render Reasonable Assistance Invalid for Indefiniteness.
    An ordinance providing that the driver of a vehicle, which has been in collision with person or property upon any street or public place within the municipal limits, shall stop and give such reasonable assistance as can be given and upon request give the name and address of the owner of the vehicle, is invalid where pains and penalties are provided -in case of -violation, and there is a failure to limit its application to drivers who have knewingly caused injury, or requirement is made that assistance be given without provision for compensation, or-there is a failure to-fix the standard as to what shall constitute reasonable assistance.
    [Syllabus approved by the court.]

      Error to the municipal court.

      Dawley, Ewing, Counts <& Terrell, for plaintiff in error.

      Jas. L. Lind, for defendant in error.
   LIEGHLEY, J.

For convenience the parties will be named in the order they stood below.

Margaret Henry, the defendant, was arrested upon an affidavit charging her with the violation of sub-section 27 of ordinance No. 1341 in the following language: ‘ ‘ That she did unlawfully fail to stop and render such reasonable assistance as could be given after her said automobile had knocked down one Arthur Zipser.” The defendant was found guilty as charged and sentenced, from which judgment error is prosecuted to this court to reverse the same.

The language of said ordinance is as follows:

‘ ‘ In case of accident to or collision with person or property upon any of the public streets, parks or parkways of the city of Cleveland, due to the driving or operating thereon of any vehicle, the person so driving or operating such vehicle shall stop and give such reasonable assistance as can be given, and shall, upon request of the person injured or any other person, give such person his name and address, and, if not the owner, the name and address of the owner together with the registered number of such vehicle in case such vehicle is motor-propelled. ’ ’

Many errors are assigned for review by defendant, but we shall confine our consideration to one only, the validity or invalidity of the ordinance under which this prosecution was had.

If the language of the ordinance required the driver of an automobile to do only such things or perform such acts as would tend to identification, we would have very little difficulty with this question. For identification is essential for the proper exercise and control of traffic. Statutes that require the driver of an automobile to stop when an accident occurs and give his name upon request, have been held constitutional. Commonwealth v. Horsfall, 213 Mass. 232 [100 N. E. 362; 1914A Ann. Cas. 682], A statute of the slate of California, the language of which was very similar to the language of this ordinance, was considered by the appellate court of that state in the case of People v. Diller, 142 Pac. 797. However, the question presented here was not considered directly by'the court. The inquiry there was whether the requirement that the driver give to the injured person his name, etc., was obnoxious to Art. 1, Sec. 13, of the constitution, which provides that no person shall be compelled in any criminal case to be a witness against himself.

Likewise other cases were cited which dealt with kindred subjects, but not the exact question here. Some of them were decided at a time when the automobile industry was in its ineipieney and proceeded upon the theory that the legislature had the power to deny entirely the right of the automobile upon the public highways. That therefore any restrictions placed upon their use were lawful. At the present date, in view of the universal use of the automobile, it will hardly be contended that the legislature has now that power. At least, if exercised, it would fall somew'hat short of popularity.

Attention is called, however, to the language of the ordinance, which reads, “shall stop and give such reasonable assistance as can be given.” What does that language mean? Does it mean aid the injured party to the curb stone ? Does it mean convey him to a hospital, hiring a nurse, securing a doctor, paying doctor’s bill? Does it mean render assistance at the point of accident or when taken away by the emergency ambulance at the hospital ? It is apparent that different minds would reach different conclusions in respect to the meaning of that phrase. It at least does mean that it requires the driver of the machine to give his time to the injured party, whatever the circumstances of the accident may have been. It will be noticed that no distinction is made between a driver who is blameless and one who may be solely at fault. It does not distinguish between one who knows or does not know that another has been injured. Some heedless individual may dash from a side street into the rear of a passing automobile and receive injuries entirely from his own carelessness and without the knowledge of the driver, yet if the driver does not stop and render such reasonable assistance as can be given, he is amenable to the provisions of this ordinance.

While the defendant was charged with a failure to stop and also with, a failure to render such reasonable assistance, etc., the proof ivas directed more particularly to the failure in the latter respect. The ordinance does not provide for nor was she charged with knowingly doing either. It is claimed that this-is error.

The law is well established that in cases such as violations of. the food laws, the sale of skimmed milk and the sale of intoxicating liquors, etc., knowledge is presumed, but it will be observed that in all such cases the subject-matter about which some act is done by the defendant, is peculiarly within, his knowledge and under his control, or the circumstances surrounding the transaction are such as he is bound to know. One who removes journal brasses from a railroad car is bound to know whether he has permission. If a public officer converts public funds in his hands as such officer to his own use, the act of taking sufficiently characterizes the intent. In this ease the driver unfortunately in a collision may or may not know. The impact of a human being striking the side of a large motor truck or struck by the rear fender of such a vehicle, is so slight as to thereby render knowledge thereof improbable.

An act making it a crime to remove journal brasses or any attachments from the rolling stock of a railroad was judicially interpreted by the Supreme Court in the case of Kilbourne v. State, 84 Ohio St. 247 [95 N. E. 824; 35 L. R. A. (N. S.) 766]. Section 12561 G. C. made the removal a crime, and in the latter part of the section it was provided that whoever buys, receives or unlawfully has in his possession any of said articles shall be punished. Knowledge was not made an element of the crime of receiving. It was a case where the purchaser may or may not know that the goods were stolen or removed from railroad property. Likewise in this case, the driver may or may not know that another was injured, for the acts charged to be criminal are subsequent to the point of time of inquiry. The fact of being in a collision is not made a crime, but the parties therein are left to solve their relative rights in a-civil action. By this ordinance, however, the. acts of a driver are made criminal without any reference to his responsibility in the matter. ‘ ‘ Knowingly, ’ ’ or words of equivalent meaning, are necessary- words in this ordinance.

Next, the driver is required to perform service regardless of his culpability or non-culpability and regardless of the culpability or non-culpability of the injured.

In the case of the State v. Boone, 84 Ohio St. 346, 347 [95 N. E. 924; 39 L. R. A. (N. S.) 1015], an enactment requiring a physician or midwife in attendance upon a ease of confinement to inquire and acquire certain statistics relating to the age and color or race, legitimacy or illegitimacy of the child, etc., and report the same, was held invalid and an unnecessary, unreasonable and . arbitrary exercise of the police power. Quoting from the opinion at page 359, the court says:

“Wo have thus briefly indicated the reasons for our belief, that the Great Charter of the Northwest Territory is still under, and above, and before, all laws or constitutions which have yet been made in the states which are parts of that territory; and that under its guaranties the state has not the right to draft a ■ citizen into particular service without substantial compensation. At least, it is clear to us that the provisions of this statute which require a professional man to search out non-professional information and certify it to state authorities, is unnecessary, unreasonable and arbitrary, and is not, therefore, a valid exercise of police power, ’ ’

An act making railroad companies liable for all expenses of the coroner and his inquest, and the burial of all persons who may die on its cars or who may be killed by collision or other accident, was held unconstitutional and void in so far as the act attempted to make said companies liable in cases where they have violated no law or have been guilty of no negligence on their part. In the case of Ohio & Miss. Ry. v. Lackey, 78 Ill. 55 [20 Am. Rep. 259], quoting from the opinion on page 57:

“It may, very pertinently, be asked, why this distinction? On what principle is it that railroad corporations, wdthout any fault on their part, shall be compelled to pay charges which, in other cases, are borne by the property of the deceased, or, in default thereof, by the county in which the accident occurred?
“An examination of the section will show that no default or negligence of any kind need be established against the railroad company, but they are mulcted in heavy charges if, notwithstanding all their care and caution, a death should occur on one of their cars, no matter bow caused, even if by the party’s own hand.”

In this ease the time required to do the things exacted by the ordinance is property. The service required, whatever that may be, is property. Any expense incurred made necessary by the ordinance, whatever that may be, is property. We will all agree that if a driver, who knows of: a party being injured, stops and returns and renders assistance, he is performing a very commendable humanitarian act, but we are not called upon to pass upon that question. What constitutes a crime and whether or not the charge here meets the inhibition of the constitution concerns us. .

Further, it will be noticed, repeating, that the language of the ordinance is “give such reasonable assistance as can be given,” and that the ordinance sets no standard of what is reasonable assistance.

“Reasonableness” has been considered by courts in other states, but mostly in civil proceedings. In Chicago, B. & Q. Ry. v. People, 77 Ill. 443, and Chicago, B. & Q. Ry. v. Jones, 149 Ill. 361 [37 N. E. 247; 24 L. R. A. 141; 41 Am. St. 278], what constitutes a reasonable rate was discussed. The same of Burlington, C. R. & N. Ry. v. Dey, 82 Ia. 312 [48 N. W. 98; 12 L. R. A. 436; 31 Am. St. 477]. The statute or the railroad commission of the state for the most part fixed the standard, however. See Louisville & N. Ry. v. Commonwealth, 33 L. R. A. 209 [35 S. W. 129; 99 Ky. 132; 59 Am. St. 457], and note.

The Supreme Court of Ohio considered in two eases a statute empowering a railroad to fix a reasonable rate for a haul less than thirty miles. It was held the question of reasonableness was a question of fact for the jury. Both were civil eases, and in neither was the constitutionality of the act made a subject of inquiry Smith v. Railway, 23 Ohio St. 10; Peters, Ricker & Co. v. Ry. Co. 42 Ohio St. 275 [51 Am Rep. 814].

The fact that it is a jury question, whereby one jury would declare a given set of facts reasonable, and another jury find the same set of facts a violation as unreasonable or falling short of reasonable, leaves the ordinance without a standard. The individual does not know, and can not know, what in fact constitutes the crime — not until the verdict of the jury is read.

In the further discussion of this subject we shall take the liberty to paraphrase the language of the court in the ease of Louisville & N. Ry. v. Commonwealth, supra. In this ease the court had under consideration a statute which provided that if any railroad corporation shall charge, collect or receive more Iban a just apd reasonable rate of toll, etc., it shall be guilty of extortion. In a discussion of the legal effect of this phrase •‘reasonable rate” this court adopts, in substance, the following language:

“That this statute leaves uncertain what shall be deemed a reasonable rate can not be denied, and that different juries might reach different conclusions on the same testimony as to whether or not an offense has been committed, must also be conceded. The criminality of the driver’s act, therefore, depends on the jury’s view of the reasonableness of the assistance given; and this latter depends on many uncertain and complicated elements. Under this statute it is still a crime, though it can not be known to be such until after an investigation by a jury, and then only in that particular ease, as another jury may take a different view, and, holding the assistance reasonable, find the same act not to constitute an offense. There is no standard whatever fixed by the statute or attempted to be fixed by which the driver may regulate his conduct; and it seems clear to us to be utterly repugnant to our system of laws to punish a person for an act, the criminality of which depends, not on any standard erected by the law which may be known in advance, but on ,one erected by a jury. And especially so as that standard must be as variable and uncertain as the views of different juries may suggest, and as to which nothing can be known until after the commission of the crime.
“If the infliction of the penalties prescribed by this ordinance would not be the taking of property without due process of law and in violation of both state and federal constitutions, we are not able to comprehend the force of our organic laws.”

Many authorities are cited by the court in this opinion in support of the absolute necessity of the ordinance fixing the standard of reasonableness, and establishes as settled law that in criminal proceedings it is an indispensable essential. This' case is cited- in Leading Case Law, and is controlling on the subject.

We therefore have reached the conclusion that this ordinance is invalid for three reasons: First, that by reason of the acts aimed to be punished, it fails to use the word “knowingly,” or words of similar import. Second." That-it drafts the time and services and perhaps money of a citizen without substantial compensation, whether he is to blame or blameless for the injury. Third. That the ordinance fixes no standard of what constitutes reasonable assistance — an indispensable requisite in criminal law.

The judgment of the court below is therefore reversed as being contrary to law, and the defendant is discharged.

Grant and Carpenter, JJ., concur.


author: HOUCK, J.

text:
    SCHOOLS.
    [Fairfield (5th) Court of Appeals,
    April 28, 1917.]
    Powell, Houck and Shields, JJ.

      Dillon Fisher v. J. W. Whittus et al.
    Jusisdiction of County Boards of Education to Dissolve and Consolidate Village School Districts.
    A county board of education has authority to dissolve two village school districts and consolidate them into one, in the absence of procedure on the part of said districts under Secs. 4688 and 4688-1, which would exempt them from such action.
    [Syllabus by the court.]
    Error.
    M. A. Daugherty and B. E. Shell, for plaintiff in error.

      James M. Butler and J. H. Fultz, Pros. Atty., for defendant in error.

       Motion to certify record overruled, Fisher v. Whittus, 62 Bull. 444

   HOUCK, J.

The plaintiff is an elector and tax-payer and the father of children of school age, who reside with him, in the Basil village school district of Fairfield county, Ohio.

The defendants are the members of the board of education of the Liberty union village school district of said county, the county board of education of Fairfield county, Ohio, and C. C. Miller, as elerk of said county board of education.

The amended petition of the plaintiff seeks to enjoin the defendants from taking any steps or doing any act towards the abolishment of two village school districts known as the Basil village school district and the Baltimore village school district, and from selling certain bonds and doing certain other things in the way of creating these two districts into a new one to be known as .the Liberty union village school district.

These villages and school districts adjoin each other.

In February, 1916, the county board of education of Fair-field county united these two village sehool districts into one new district, appointed a provisional board of education for same, and authorized the issuance of $60,000 of bonds to purchase a site and to erect a new school building thereon.

The petition seeks to restrain the issuance of these bonds, the purchase of the school site, the erection of the building and to prevent the consolidation of these two village districts into a new one.

A general demurrer was filed to the amended petition in the court below and was sustained, and error is here prosecuted seeking a reversal of the judgment of the common pleas court.

Plaintiff in error relies upon the claim that the county board of education was wholly without authority or power, statutory or otherwise, to create a new school district out of the two village districts. In other words, learned counsel for the plaintiff in error contend that a county board of education has no jurisdiction to dissolve village districts and create a new district therefrom.

Section 4684 GL C. clearly defines what constitutes a county school district:

“Each county, exclusive of the territory embraced in any school district and the territory in any village school district exempted from the supervision of the county board of education by the provisions of Sections 4688 and 4688-1, and territory detached for school purposes, and including the territory attached to it for school purposes, shall constitute a county school district. In each case where any village or rural school district is situated in more than one county such district shall become a part of the county school district in which the greatest part of the territory or such village or rural district is situated.”

We find no allegation in the amended petition that would warrant us in holding that the two village districts in question are within the exceptions found in the above statute, but we do find that they are not within the exceptions.

Therefore, if they are not exempted from the provisions of Sec. 4684 as provided in Secs. 4688 and 4688-1, then they are under the jurisdiction and authority of the county board of education as contemplated in and provided by Sec. 4684, and the county board of education has full and complete power and authority to create a new district from the territory embraced in them.

No claim is made in the amended petition that advantage was taken by the electors of the new school district of the provisions of Sec. 4736, “which said arrangement shall be carried into effect as proposed unless, within thirty days after the filing of such notice with the board or boards of education, a majority of the qualified electors of the territory affected by such order of the county board file a written remonstrance with the county board against the arrangement of school districts so proposed.”

From a careful examination of Sec. 4736 Gr. C., which further provides, “The county board of education is hereby authorized to create a school district from one or more school districts or parts thereof,” we are fully convinced that the county board of education has full power and authority ever village districts and may create a new district by consolidating two village districts.

This language is clear, plain and explicit and certainly gives to the county board full and complete power in the premises, unless the village district or districts are exempted from the jurisdiction of the county board of education as provided in Sees. 4688 and 4688-1 G. C., which does not appear in the immediate ease.

Section 4679, G. C., reads as follows:

‘ ‘ The school districts of the state shall be styled, respectively, city school districts, village school districts, rural school districts and county school districts. ’ ’

Thus it will be seen that we have four kinds of school districts: city, village, rural and county.

The statute, Sec. 4684, specifically exempts city districts from the jurisdiction of a county board of education, but gives it complete authority over rural and village districts, unless village districts take advantage of the provisions of Secs. 4688 and 4688-1 G. C., and thereby become exempt from such jurisdiction.

We think that a fair interpretation of the provisions of the new school code and the legislative intent, which must be ascertained from the language used therein, can lead to but one conclusion as to the jurisdiction of a county board of education over village districts, and that is, that it has such jurisdiction unless they become exempt therefrom in the way provided by said law.

In passing upon the question raised by the demurrer to the amended petition, we have put aside any technical questions that might be urged for it and looked wholly, and entirely to the real question involved and the one urged and relied upon by counsel for plaintiff in error, namely: Has a county board of education jurisdiction to dissolve two village districts, which have not become exempt as provided by Sees. 4688 and 4688-1, G. C., and create a new district from the territory embraced therein?

We must and do answer this inquiry in the affirmative.

Thus holding, we find that the common pleas court was not in error when it sustained the demurrer to the amended petition in this case; and finding no prejudicial error in the record the judgment of the common pleas court must be affirmed.

Judgment affirmed.

Powell and Shields, JJ., concur.


text:
    STREET RAILWAYS.
    [Licking (5th) Court of Appeals,
    October Term, 1916.]
    Shields, Powell and Houck, JJ.
    The Ohio Electric Ry. v. Isaac Burkham.
    1. Instruction before Argument Authorizing Verdict against Interurban Railway if Motorman by Proper Care Could have Avoided Collision.
    In an action for injuries from being struck by an electric car which it is alleged was being operated over a crossing at an excessive and dangeroüs rate of speed, it is not error to give a special charge to the jury before argument, to the effect jury find that the motorman might and by the exercises of ordinary care would have avoided striking him, a verdict should be returned in his favor, unless the jury also find that the plaintiff was himself guilty of negligence contributing to his injury.
    2. Failure of Plaintiff to Support Some Material Facts not Ground for Reversal.
    The fact that some of the testimony of the plaintiff relating to material facts is unsupported is not sufficient ground of itself to warrant a reviewing court in setting the judgment aside on the ground of weight of the evidence.
    [Syllabus by the court.]
    Error.

      Fitzgibbon, Montgomery é Black, for plaintiff in error.
    J. W. Horner and Kibler & Eibler, for defendant in error.
   HOUCK, J.

The plaintiff in error seeks a reversal of the judgment of the common pleas court in this case. The plaintiff in error was the defendant below, and the defendant in error was the plaintiff below. The suit below was one for personal injuries alleged to have been received by said Burkham while attempting to drive over the tracks of said railway company in a one-horse buggy at a point about four miles east of tbe city of Newark, Ohio, known as McClellan’s crossing; that said injuries complained, of were caused by one of the interurban cars of the defendant company which was being run at a reckless and dangerous .rate of speed, at about sixty miles an hour, by the servants of the company, and that said injuries received by Burkham were in no way caused by any fault of his or negligence on his part, and that he in no way contributed to the same.

The cause was submitted to a jury and a verdict returned in favor of Burkham in the sum of $500. A- motion for new trial was filed, heard and overruled, and a judgment was entered on the verdict.

Plaintiff in error seeks a reversal of this judgment for two reasons:

1. That the court erred in giving to the jury before argument a certain written request which was given at the instance of the plaintiff below.

2. That the verdict is against the manifest .weight of the evidence.

When written requests are presented by counsel to be given before argument, it is the duty of the court to give same, if they, or any of them, are sound propositions of law and applicable to the facts established by the evidence, and are pertinent to the issue or issues raised by the pleadings, but if they or any of such, requests are not, then, of course, the trial judge must not submit same to the jury.

The request complained of is as follows:

“If you find from the evidence that the motorman of the defendant, in the exercise of ordinary care on his part, in the running of the car, could or should have seen the plaintiff about to use said crossing, both vehicle and car going in the same direction, in time to have slackened the speed of his car, or in time to have stopped the car and thus avoided the accident to the plaintiff, and that because of the failure of said motorman to see the said plaintiff in that position, or that he was guilty of a want of ordinary care in not seeing the plaintiff in said position, your verdict should be for the plaintiff, unless you find from the evidence that the plaintiff was guilty of negligence contributing to his injuries. ’ ’

It is urged by counsel for plaintiff in error that the court below erred in giving the above to the jury for the reason that it is based upon the doctrine of last chance and that the petition is silent as to any such claim.

We have examined this request with much care and from our examination of it, and in the light of the authorities upon this question, we are free to say that we can not agree with the claim of counsel for plaintiff in error.

The law as embraced in this request is certainly sound as a general proposition of law and was peculiarly applicable to the facts as shown by the evidence in this case and the court committed no error in submitting it to the jury.

The next question to be determined by this court is: Was the verdict against the manifest weight of the evidence? We have read the testimony of the witnesses as contained in the bill of exceptions and while the testimony of the plaintiff below stands alone as to some of the material facts necessary to be established in order for him to recover, yet we are not able to say, as a reviewing court, that the jury was not warranted in giving the weight to his testimony which it certainly did give to same, as indicated by the verdiet it returned.

A reviewing court will not and should not set aside and hold for naught a verdiet of a jury for the alleged reason that it is against the weight of the evidence, unless, upon an examination of the whole record, it is fully satisfied that the verdict is manifestly and clearly against the weight of the evidence, and in the present case we are not so satisfied, and therefore, will not disturb the verdict of the jury on the alleged ground that it is not supported by the evidence.

We therefore hold, from an examination of the entire record in this case, that there is no prejudicial error therein that would warrant this court in reversing the judgment of the common pleas court. We therefore hold that the judgment of the lower court should be affirmed.

Judgment affirmed.

Shields and Powell, JJ., concur.


author: SMITH, J.

text:
    STREET RAILWAYS.
    [Hamilton (1st) Circuit,
    February 8, 1913.
    Smith, Swing and Jones, JJ.
    Cincinnati Traction Company v. Mary Brogan.
    “Jerks” Not Due to Defects in Track or Careless Operation Not Chargeable to Company.
    Evidence of a “jerk” in the movement of an electric car does not establish negligence where not shown to have been due to a defect in the track or careless handling of the car, even though a witness described the jerk complained of as “terrible.”

      Miller Outcalt, for plaintiff in error.

      Kramer & Bettman, for defendant in error.
   SMITH, J.

We are of the opinion that the evidence in the above action does not establish negligence upon the part of plaintiff in error in the operation of its car at the time the accident complained of occurred.

“The mere fact that a car gives a sudden movement when starting or stopping, is entirely consistent with the supposition that it was managed in a careful and prudent manner and does not raise a presumption of negligence. Booth on Street Railways, See. 250.

“The possibility of an electric car giving a jerk is an incident of travel which every passenger must expect. To make out a case of negligence on the part of a defendant railway company in such a case the plaintiff must go further and introduce evidence that the jerk in question was due to a defect in the track or to the negligence in the operation of the ear.” McGann v. Boston Elevated Ry. 199 Mass. 446 [85 N. E. 570; 18 L. R. A. (N. S.) 506; 127 Am. St. 509]; Cleveland City Ry. v. Osborn, 66 Ohio St. 45 [63 N. E. 604]; Craig v. Boston Elevated Ry. 207 Mass. 548 [93 N. E. 575].

The use of the adjectives, “terrible,” etc., as descriptive of the kind of jerk were but conclusions of the witness.

The trail court therefore erred in not granting the motions of plaintiff in error to direct a verdict in its behalf.

Judgment reversed and judgment for plaintiff in error will be entered in this court.

Swing and- Jones, JJ,, concur.


author: RICHARDS, J.

text:
    CRIMINAL LAW — ERROR.
    [Wood (6th) Court of Appeals,
    May 7, 1917.]
    Chittenden, Richards and Kinkade, JJ.
    Philip Moorey v. State of Ohio.
    1. Leave of Court of Appeals Obtained Essential to Review Affirmance , by Common Pleas of Conviction by Mayor.
    By virtue of the requirements of Sec. 13246 G. O., one who has been convicted before a mayor for a violation of the law prohibiting the sale of intoxicating liquors in a city, which judgment has been affirmed by - the common pleas court, must, before filing a petition in error in the court of appeals obtain leave of that court after good cause shown therefor and within the time limited in said section.
    2. Court of Appeals not “In Session” When Term is Formally Held Open.
    In computing the time within which the same must be filed, the language of the statute “When a reviewing court is not in session” means, not in session in the county in which, the litigation is pending, unless the court has fixed some other county of the appellate district for the hearing of such cases, and the court of appeals is not to be deemed in session in the county in which the litigation is pending simply because the term of court therein has been formally held open.
    3. Leave to File Petition to Review Lower Courts Refused when Record Discloses Lower Courts Correct.
    If an examination of the entire record of a case coming within that statute clearly discloses that the judgments of the lower courts are right, leave to file a petition in error will be refused.
    Error.

      Edward Beverstock and A. B. Campbell, for plaintiff in error.

      William B. James, city solicitor, for defendant in error.
   RICHARDS, J.

Philip Moorey was convicted before S. W. Bowman, mayor of the city of Bowling Green, on a charge of selling and furnishing intoxicating liquor to one John Goodman, in violation of . Sec. 13232 G. 0., known as the Beal local option law, and sentenced to pay a fine of two hundred dollars. He prosecuted error to the court of common pleas where the judgment of conviction was affirmed on December 27,1916.

On- the day the judgment was affirmed he filed a petition m error in the court of appeals to secure a reversal thereof, but this petition in error was filed without leave being granted therefor, as required by See. 13246 G. C. On April 23, 1917, the plaintiff in error, through his counsel, notified the defendant in error that he would apply to the court of appeals at the court house in the city of Bowling Green on Monday, April 30, 1917, at nine o’clock A. M., or as soon-thereafter as counsel could be ñeard, for leave to refile the petition in error for the reason that the same had been filed without leave of court.

The state strenuously resists the application for leave to file a petition in error, or to refile the one which has already been filed, basing the objection on the ground that the right to file the same is barred by the terms of the statute last cited, and on the further ground that, even if the application is within time, the conviction and the affirmance thereof were required by the evidence and, therefore, that no good cause has been shown for granting the application.

The court, when these matters came on for hearing, informed counsel that it would hear the application for leave to file or refile the petition in error and at the same time would hear arguments upon the merits of the case and determine the whole controversy at one time.

By reason of the provisions of Sec. 13246 G. C. no authority existed for filing a petition in error until the court of appeals, after good cause shown therefor, had granted leave to file the same. We will, however, treat the application as one for leave to file a petition in error. The statute cited provides that such petition in error must be filed on or before thirty days after the judgment complained of, and that when the reviewing court is not in session within the time provided for, the motion for leave to file a petition in error and the petition in error may be filed with and heard by such reviewing court within ten days after it is in session. It is under this latter clause that plaintiff in error claims he is in time with this application.

The court of appeals began its regular session in Wood county on Monday, October 16, 1916, continuing in session in ¿he city of Bowling Green throughout that week, and was not in session in Wood county from that time until April 30,1917. The October term of court was, however, kept open for the transaclion of such further business as might properly come before the court, such business being transacted, by consent of counsel, in Lucas county where the court of appeals during the greater portion of that time was in session.

The language of the statute, "When a reviewing court is not in session, ’ ’ means not in session in the county in which the litigation is pending, unless the court has fixed some other county of the appellate district for the hearing of such eases, and the court is not in session, within the meaning of the statute, simply because the term of court has been formally held open for the purposes already stated. This view is confirmed by the fact that the statute uses the expression "thirty court days,” and certainly days when the court was engaged in the transaction of official business in Lucas county or elsewhere could not be counted as court days in Wood county, the court not having fixed any county other than Wood for the hearing of cases pending therein. The next term of the court of appeals in Wood county began on April 30, 1917, and the plaintiff in error makes this application on the first day of the term and is within the limitation prescribed by statute in so doing.

The case having been argued not only upon the application for leave to file a petition in error, but upon the merits, we have read the entire record with a view to ascertaining whether the conviction was justified by the evidence. The bill of exceptions contains at least the usual conflict found in eases of this character. It would be of no advantage to review this evidence. Suffice it to say that, after a careful examination, we are clearly of opinion that there was sufficient evidence to justify the mayor in .finding the defendant guilty. Having reached this conclusion, it would be futile to permit the filing of the petition in error and then immediately enter a judgment of affirmance, and for these reasons we have determined that no good cause has been shown for granting leave to file the petition in error, and the application for . such leave will therefore be refused.

Chittenden and Kinkade, JJ., concur.'


author: GRANT, J.

text:
    ACTIONS—ALIENS.
    [Summit (8th) Court of Appeals,
    1917.]
    Carpenter, Grant and Lieghley, JJ.
    John Nyitray v. John A. McAlonan et al.
    Alien Domiciled in United States at Beginning of Hostilities not Denied Right to Bring Action for Damages.
    An alien, subject of a nation at war with the United States, domiciled in this country at the beginning of hostilities and not adhering to the enemy, has the status of an alien amy and is not denied his day in court or the right to institute and prosecute an action for damages resulting from the actionable fault of defendant. This right is one of international law as distinguished from municipal law, is allowed by precedent, proclaimed by the Hague Convention, recognized by wholesome public policy and is in accord with the “spirit of 1917.” The right of the government to despoil an alien resident when hostilities begin is not accorded to citizens thereof.
    [Syllabus by the court.]
    Error.

      Smoyer & Clinedinst, Musser, Kirnber & Huffman and R. C. Nesbitt, for plaintiff in error.

      Rockwell & Grant, for defendant in error.
   GRANT, J.

In the court below the plaintiff declared in damages, sustained by him, as he said, through the actionable fault of the defendants.

When the cause was put to trial to a jury, the evidence disclosed the fact that the plaintiff was born a subject of the dual monarchy of Austria-Hungary, never having been naturalized as a citizen of the United States, although he had resided in this country for several years and in Summit county for more than three years. It appeared further that he had duly executed his preliminary declaration of intention to become such citizen prior to the time of trial below, but after the present war on the European continent had become flagrant on the part of his sovereignty of origin.

When this state of things was disclosed, the trial eourt sustainted, in terms, certain motions made by tbe defendants that tbe cause be arrested from the jury and dismissed the action.

This judgment is challenged,by the petition-in-error as being in derogation of a substantial legal right of the plaintiff to wage his law in the courts of his present domicile.

The whole contention made by the defendants as to why the judgment under review should be upheld is aptly stated in their brief as follows :

First: That there is nothing before this court to hear, as plaintiff’s petition in the court below was dismissed without prejudice at his own request; and

Second: That the action of the court in sustaining the motion of defendants was correct, for the reason that plaintiff is an alien enemy and not entitled to prosecute an action in our courts until the termination of the war.

In regard to the first of these propositions no more need be said than that it is untrue in point of fact. As the trial judge was proceeding on the theory that the plaintiff, being an alien enemy, could have no standing in the courts of this country and was denying him the right of being a litigant at all, his Macedonian cry to be dismissed from a forum where he right-, fully was not, could hardly have been heeded to the effect of cutting him off from his remedy of a review.

Besides, it is quite apparent that whatever weight may have been given to the plaintiff’s request to have his action for the time abated, by way of inducement to the judgment shown by the record, the judicial deliverance at last was upon tho court’s sole responsibility. The journal in this respect says:

“Upon consideration whereof the court finds that said motions and each of them should be and they are hereby sustained, to which judgment, ruling and order the plaintiff here and now excepts, and thereupon the said court dismissed plaintiff’s amended petition herein without prejudice, at his costs, to which order and judgment of the court the plaintiff here and now excepts. ”

We assume'at the outset that at the time of the trial below Austria-Hungary was at war with the United States. We think that in this respect the case comes within the rule of In surance Co. v. Swinnerton, 37 N. Y. 174, which we regard as an authority upon this branch of the inquiry.

Addressing, therefore, our consideration to the remaining position taken in the brief and approaching directly the simple question in dispute, it may be said that war, “the terrible litigation of nations, ’ ’ is itself so abnormal, so completely at variance with all commonly received notions of justice and neighborliness in the human family, that extremely diverse views of the consequences remotely flowing from its existence have been held in different ages and by different men in dealing with them. It would serve no useful purpose to examine in any detail tho mass of curious learning that has been heaped up and wasted on the subject, generally or in particular. It may be said, however, that conclusions have ordinarily been deduced to promote the selfish interests of the respective international litigants, by each, in his own favor, in logical outcome of the fact that all warring powers are national Ishmaelites. And the softening influences of what used to be called civilization or Christianity have scarcely operated on the subject to the betterment of innocent victims of this “repeal of every principle of virtue,’' otherwise called war.

Naturally enough, we of America look to the country of our political lineage for information and precedents to guide us to just judgments. But the latter are of little value, after all; the lex talioms runs through' them and moulds them, for the most part.

The subject is discussed at length by Sir Robert Sawyer, attorney-general, in his argument for the crown in the great case of monopolies, East Indian Co. v. Sandys, 10 Cobbett’s State Trials 371, decided in the time of Charles the Second.

Reviewing the common law as it gave status to aliens, in England, he observes: “That as the king may at common law prohibit any of his subjects to go beyond sea, so, that he may license them to go for trade or otherwise, is unquestionable. * * * Alien enemies are prohibited by the common law to eome within the realm; yet the king may license them to come by his safe-conduct, as appears by the statutes made for the observation of safe-conducts. No subject could seize his goods or injure Ins person, but he was punishable for it, both at the suit of the king and of the party * * * and that such an alien enemy may bring his personal action for debt, or any injury, appears by the case of John Douglas, a Scotchman, 20 E. 4, vol. 6, Pt. 6, and Moore, 431 * * * .

The authority of 7 E. 4 is good law, but misapplied in not observing the difference between the times of the enemy or his goods, coming into the realm.

After open war proclaimed, whereby all the subjects have notice whom the king hath declared his enemies, and against whom they are to join in defence of themselves and the kingdom, if the persons or goods of such enemies come into the kingdom, any subject may seize them and gain a property in the goods, as a prize taken in open war, according to the authority of 7 Edw. 4 * * *. But when the person or goods of aliens are in, or come into England under safe-conduct, and the safe-conduct be not determined by the king, * * * no 'person can seize the person or goods of such alien enemies.

Upon this difference the law was settled, 36 H. S. by the judges. Bro. Property 38, in the abridgment of the case, 7 Edw. 4.

That when a Frenchman inhabited in England, and a war was afterwards proclaimed, no subject could seize his goods, because they were here before. But if he came after the war, any man may seize his person and goods, and shall have a property in them, and in such case the King shall not have them. And so was it put in practice, saith the book, between English and the Scots. * * *

I before showed that an alien enemy which came over by the king’s safe-conduct, was as much under the protection of tho laws as any alien amy (friend) whatsoever; and no subject could seize or molest his person or goods. And the determining the safe-conduct by the king left the alien enemy in the same condition as other alien enemies, after war proclaimed, who were here before under the general safe-conduct of the laws. In which ease the subject had no liberty to seize either the persons or goods of alien enemies; but that power was reserved by law expressly to the king.

Which, besides the authorities I have produced, expressly appears by Magna Charta, chap. 30, which provides:

‘ ‘ That if the merchant-strangers be of the land which makes a war against us, and be found in our realm at the beginning of the war, they shall be attached, without harm of body or goods, until it be known to us or to our chief justice how our merchants be intreated there. ’ ’

This view of the common law of England in the time of the Stuarts seems not to have been controverted in the ease named. It amounts to this: That an alien in England, when war with another power becomes flagrant, shall be secure in his person and his goods and be sheltered by the English courts against the aggressions of English subjects, — a security, however, which did not extend to aggressions on the part of the king. In other words, the foreigner coming into England in time of peace might continue there with that status of an alien friend, as against the rule of universal outlawry and spoliation to which the public enemy was of right subjected, which public enemy he would be if he delayed his coming in till after war declared between his own sovereign and that of his domicile. But this immunity the king was himself not bound to observe. He might turn over the sojourner to public vengeance or despoil him of bis goods at will, whether he entered the realm before or after the breaking out of hostilities; as to him the sole criterion was the existence of overt war between himself and the stranger’s prince.

And Sir Robert Sawyer sums up the rule thus:

“So that the disposal of their persons and goods was wholly in the king. And the liberty the subjects had to inter-meddle with foreign enemies extended only to such who came here after a war proclaimed.” And if the particular inter-meddling took the form of running down the merchant-stranger with an automobile, the latter should still have his remedy in the courts, provided only that he came in before the war.

Now, in the case at bar, the king has not exerted his prerogative of visiting the vengeance which according to this exposition of the common law resides wholly in him, on the plaintiff, but, on the contrary, he has by proclamation exhorted to extreme tenderness to the misguided subjects of those perverted men bearing rule in the enemy countries, upon whom he has fixed the responsibility for the present unhappy state of war in which we find ourselves.

This admonition to charity, this exhibition of-“the spirit of 1917, ’ ’ is strangely at variance with the spirit of the judgment we are here called upon to review, — looking at the latter as a purely legal proposition pushed to its- ultimate possibilities. The plaintiff is turned out of court and is denied redress for injury to his person, which injury might have been stripes wantonly administered, or deprivation of his goods, so far as the legal consequences of the denial are concerned. It is a thing which in the reign of the meanest family of tyrants which ever occupied the throne of England was by law disallowed to the subject and properly reserved to the mean king, but which in this ease the king, — ^a better king, — wholly disavows and repels.

In legal quality and effect, the judgment under review may be assimilated to the cry of “hors de la loi” in the national assembly of the French revolution, the echo of which sent the one against whom it was denounced to the judgment of the knitting women who turned a new seam as his head fell into the basket.

Sir Robert Sawyer’s statement of the common law of England is not damaged by the fact that his -argument from it was to a far different purpose. He was- arguing for the reserved right of the king to grant monopolies to- trade with countries east of the Cape of Good Hope, because Lord Coke .had pronounced an infidel “perpetus inimious,” and infidels the Hindoos were esteemed to be. As such, the crown could plunder them at will— as also it could the Jews, for were they not too “unbelievers” and so “perpetual enemies?” — but the subject must not-; he could not “intermeddle.”

In fairness I feel bound to say that this construction of the common law of England has not been followed by the English courts when occasion has arisen. But that the letter of the law so stood in 1685 — upon whatever ground of reasoning — I see no ground for doubting.

It would b¿ tedious as. -well as unprofitable for me here .to trace the subject through the intervening years, or to discuss the cases in which it has been in many forms invoked. I shall, instead, come directly to our own time and address my inquiry to what the courts more recently have said. The question has been several times before them, both in England and America, since the outbreak of the present war, but only a few of the cases can be noted.

In Robinson & Co. v. Insurance Co. 31 T. L. R. 20, King’s Bench Division, the defendant, to defeat a recovery on a policy issued by it, pleaded that it was an alien enemy corporation and therefore could not be sued while the war should remain flagrant, and demanded that the action be suspended pending its cessation. • — which is said to be the theory of the judgment now under review, although, of course, it does not, nor can it, take that form. The plea was disallowed, on the ground that it favored an alien enemy to the injury of a British subject. The question was the converse of the one presented by the record at bar. This was in 1914. Later, it came up before the same court, in its positive form, in Porter v. Freundenberg, 31 T. L. R. 162, decided in 1915. The suit was for rent owing by a Prussian domiciled before the war in London and then having a resident agent there, it will be seen that the concrete question really was that of the capacity of an enemy to be sued, — as in the other case, — but the entire question was dealt with, and the court undertook to decide it all — its holding material to our discussion being as1 follows:

“An alien enemy has no right to sue in an English court during the war, unless with special license or authorization of the crown.”

This conclusion purports to state the common law of England at the present time and an imposing array of cases are marshalled in its support. One of these, Antoine v. Morehead, 6 Taunt 237, puts the judgment on the very simple ground that “a party having become an alien enemy could not enforce his personal rights, because he had none. ’ ’

The attention of the court in the Freundenberg ease was called to the fact that the rule of the common law had been abrogated by Art. 23 of the Hague Convention, to which both Great Britain and the United States were assenting parties. The material part of that article is as follows:

“In addition to the prohibitions provided by special conventions, it is particularly forbidden (h) to declare abolished, suspended or inadmissibel the right of the subjects of the hostile party to institute legal proceedings. ’ ’

It should seem that if the English language can be mads to signify anything at all, this means exactly what it says, and that it is not to be enlarged or aided by judicial construction. But the attorney-general said no, — and the court agreed with him. His contention was that the clause should be read in connection with the context, which had to do with prohibitions on the use in warfare of incendiary missiles, poisoned weapons or water-sources, killing enemies while under the safeguard of flags of truce, forcing enemy prisoners into the ranks of the captor, and the like. From it all was deduced the conclusion that the inhibition quoted merely forbids the military commander of a belligerent force in occupation of the enemy’s territory to make any declaration preventing the inhabitants from resorting to their own courts in asserting their rights. Mr. Attorney-General admitted that this is a narrow and grudging view of the question and from which the French and German jurists have at all times dissented, — they contending for the wide and natural construction which the words themselves clearly import. But he said, with truth, that the English and American opinion is to the contrary. He also said that the British foreign office notified the German government to that effect, seasonably, and while the two powers were still at peace, and that the rule of the English common law must remain wholly unaffected in respect of the status of alien enemies. His conclusion was that as the German government then made no protest, it must be held to have fully appreciated the claim that the right of alien-enemies to be suitors in British courts was not admitted, notwithstanding the deliverance of the Hague Convention. And this interpretation has been supported by American text-writers. See American Journal of Int. Law, Vol. 2, p. 70 (1908). The highly Anglicanized fifth edition of Wheaton’s International Law, — the man who in the preface calls himself the coauthor, being an Englishman, — supports the same view, broadly. He says that “by the existing English law the outbreak of war operates ipso facto to suspend an alien enemy’s right of action. ’ ’ And judging by the English cases, at least since Lord Ellenborough’s and Lora Thurlow’s time, this seems to be the fact. His position is that the question is not one of international law at all, but of municipal law, the inquiry being as to the locus standi of the enemy suitor.

And yet the Admiralty Division of the British High Court departed from this conclusion in the case of the Moewe. in October, 1914.

The president judge observed: “The practice (i. e. in that court) should conform to sound ideas of what is fair and just A merchant who is a citizen of an enemy country would not' unnaturally expect that when the state to which he belongs, and other states with which it may unhappily be at war, have bound themselves by formal and solemn conventions dealing with a state of war, like those formulated at the Hague in 1907, he should have the benefit of such international compacts. He might equally naturally expect that he would be heard in cases where his property or interests were affected as to the effect and results of such compacts upon his individual position * * *. From the considerations to which I have adverted, I deem it fitting, pursuant to powers which I think the court possesses, to direct that the practice of the court shall be that, whenever an alien enemy conceives that he is entitled to any protection, privilege or relief under any of the Hague Conventions of 1907, he shall be entitled to appear as a claimant, and to argue his claim before this court. ’ ’

So it is not quite true in point of fact that the matter is wholly within the cognizance of the municipal law qf one of Hie belligerents, but that a litigant is entitled to seek the shield of what most people would think the obvious and fair interpretation of Article 23.

The plaintiff at bar did not have that privilege accorded to him by the judgment he is here assailing, although the sovereignty which denies it to him agreed to be bound by the article.

Freundenberg v. Porter, supra, McVeigh v. United States, 78 U. S. (11 Wall.) 259 [20 L. Ed. 80], is cited in support of the doctrine upheld by the court. It is the only authority quoted from our national supreme court. It does not do what is claimed for it. What it decides, — and all that it decides touching this contention, — is that McVeigh — who was an enemy sub modo, being a Confederate, — could be sued in the courts of the sovereign from which he had revolted. Whether he could sue in those courts or not was a question distinctly declined. In regard to it, however, reference was made — apparently with approval — to two cases, which I purpose briefly to consider.

The first is Russell v. Skipwith, 6 Binn. 241. It was decided in 1814, when we were at war with Great Britain. The plaintiff was a British subject. The court held that the plea of alien enemy is bad, unless it state that the plaintiff is himself an enemy or is adhering to the enemy, or its • equivalent. In the opinion by the chief justice, it is said:

“In order to disable the plaintiff, you must go further and say that he himself is an enemy or is adhering to the enemy.” And he adds:
“But there is another circumstance to be attended to. Although the plaintiff be an enemy, yet if he resides in the country where the suit is brought, under the protection of the government, he may support an action.”

I ask whether the fine protestations of our executive in promotion of “the spirit of 1917,” do not constitute this condition of upholding an action by a beneficiary of them. The chief justice cites the English case of Openheimer v. Levy, 2 Stra. 1082. The plea in that case was that the plaintiff was an alien, born at- Vienna, under the dominion of the king of the Romans; etc. It was disallowed because, as the court said, an alien friend may maintain an action, and it was not said that the plaintiff was an alien enemy. The opinion concludes in the following significant words:

“I trust that the courts of Pennsylvania will always be forward in administering justice to aliens on the most liberal principles recognized by the most civilized nations.”

Recurring to “the spirit of 1917,” breathing through the proclamations cited in the argument at the bar, here was the voice of one crying in the wilderness: ‘ ‘ Prepare ye the way of the Lord; make his paths straight. ’ ’

The other case to which our attention is directed in McVeigh v. United States, supra, is the one largely relied on by the plaintiff here to work a reversal of the judgment of outlawry against him. It is Clark v. Morey, 10 Johns 69.

The action was assumpsit on a note of hand. The second plea tendered was to the effect that the plaintiff was a born subject of the king of Great Britain, a power then at war with us; that he had not cast off his allegiance of origin, by naturalization or otherwise; that he had come into the United States and still remained there, without any letters of safe-conduct from the president or any license to so reside, whatsoever, and that he was therefore incapable to sue in our courts. There was a demurrer to the plea.

Chief Justice Kent spoke for the court, holding the plea Lad. He remarked, — among much else:

“In the ease before us we are to take it for granted (for the suit was commenced before the present war) that the plaintiff came to reside here before the war, and no letters of safe-conduct were, therefore, requisite, nor any license from the president. The license is implied by law and the usage of nations; if he came here since the war, a license is also implied; and the protection continues until the executive shall think proper to order the plaintiff out of the United States; but no such order is stated or averred. * * * Until such order the law grants permission to the alien to remain, though his sovereign be at war with us. A lawful residence-implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than-to justice and humanity.
“The right to sue in such a case, rests on still broader ground than that of a mere municipal provision, for it has been frequently held that the law of nations is part of' the common law. By the law of nations, - an alien who comes to reside in a foreign country is.entitled, so long as he conducts himself peaceably, to continue to reside -there, under the public protection; and it requires the express will of the sovereign power* to order him away. The rigor of the old rules of war no longer exists * * #.
“It has now become the sense and practice of nations, and may be regarded as the public law of Europe * * * that the subjects of the enemy, (without confining the rule to merchants) , so long as they are permitted to remain in the country, are to be protected in their persons and property, and to be allowed to sue as well as be sued. ’ ’

After citing a beadroll of adjudicated cases and referring to many treaties and writers on international law and commenting luminously on all of them, America’s greatest chancellor concludes thus:

“The case before us does not raise the question, nor do we give any opinion in favor of the right of action by aliens who resided in the enemy’s country when war was declared, and when the action was commenced. The cases appear to be against such right. But, as to aliens who were residents with us when the war broke out, or who have since come to reside here, by a pi'esumed permission, the authorities seem to be decisive. And whether we consider this case in reference to the decisions of the English courts, to the act of congress” (i. e., the alien act of John Adams’ time) “or to the sense of European nations, and by their writers on public law, the plea must be overruled; an d the plaintiff is entitled to judgment upon his demurrer. ’ ’

The time has been when courts, — including Ohio courts,— would follow, — gladly and even proudly, — a precedent so sound in principle, so well fortified by authority and so consonant with justice and the common sense of civilized mankind, coming from one of the most eminent and loved jurists our country has produced. And the war spirit at large now cannot yet have wholly exorcised the human considerations which underlie and permeate his opinion.

The case at bar has more than a theoretical importance. The stranger within our gates; is so numerous, so much bound up in our present prosperity and our coming welfare or thq want of it, that its right solution signifies as much to us as to him; and it comes home to him with peculiar and far-flung significance. In the evil days that are upon us he has met with many a surprise as he comes to our shores. Some things from which he imagined he was fleeing when he cast his lot among us, he finds waiting for him here. Among these it surely is to be hoped his capacity to be run down by automobiles and be denied redress for his injuries in the courts of his land of refuge is not; for we may be certain that if this thing may be done to that effect; if the raucous and insistent driver finds that he has a duly legalized' letter of marque to rove the high streets at his sole will and pleasure, as against the very many alien people when customarily traverse them, without the righteous fear of a damage suit before his eyes, — if this, we say, has the sanction of the courts, we may be sure the privilege will not pass unimproved, either in the silent watches of the night or “in the morning by the bright light.” The .already eustomary battleground of our roads and streets will be littered with still more corpses in the legalized slaughter of those guilty of the offense of walking in them. And the fact will be another opportunity of the many of the “City of Opportunity,” and will be called (o duty to invite more confiding strangers hither; it will not exactly be welcoming them “with bloody hands to hospitable graves” but it will be something like that.

The importance of the question to our common 'well-being and to our repute in the world, alone can justify so much as has been said Iierer That so much has been said precludes the saying of. much more that might be said, aptly and instructively. It also prevents the citation of other cases and the examination, particularly, of many that have been marshalled so industriously in the briefs.

It was suggested in the argument at the bar that some of our whilom solemn treaties call loudly for a reversal of this judgment. The answer was, and is, of course, that the war of itself has abrogated those treaties; they have become — if, indeed, they were not always so — “mere scraps of paper.” "We have already seen how the courts have handled the handiwork of the Hague Convention. We are reminded of the Roman maxim — - verified too often by experience — “7'titer arma leges silent.” But there is also the maxim that “Liberty follows the sword.”

And, along with treaties and conventions, we can safely sweep down the cobwebs of the so-called law of nations. When the civil- war broke out our' great Ohio cabinet member complained that some policies of the administration were infractive of the constitution in tendency. To which Mr. Lincoln is said to have replied: “Chase: I reckon the constitution is going to have a rather rough time of it for a few years to come” — as it did. It is so with international law. Its very countenance has already been so battered out of shape as to be unrecognizable by its best friends. Its elaborate frame-work has fallen amid the dash of arms. No man is so poor as to do it reverence or to lift a voice in its defence. All are clutching for its spoils. The Prince of Peace has obtained a munition contract, for aught that men know to the contrary; or else has been elected town clei-k at Ephesus and is making speeches to the silversmiths there assembled.

Still, having brushed away both treaties and international liypocrisy imbedded in forms of law, I have endeavored to show that the principle of the common law of England, even as expounded when that noble thing was being made to pimp for a low-down family of sovereigns, then contained within itself the germs of the right of the stranger within our gates — come to make and be one of us — to wage his law in our courts, and that in times when a free bath is given to the vilest hobo, the fountain of justice is closed to one sojourning with us — decently, so far as we know — and who, even if at home, our chief magistrate says'is' not our enemy and with whom, as a man and brother, i-either we nor he have any quarrel or cause or occasion thereof; and, shall a right which the president disclaims be thrust by the judiciary upon an automobile driver?

I have tried to show also that this ancient application of the common law has, in some American courts at least, survived to our own time,' which should, in judicial charitableness and love of fairness and freedom, be a better time for men, — alien men as well as our men. We. affeNoudly professing as much. I have at least shown, asl think, that even treading in the narrow path of precedent, the line of authorities seeming to support the judgment under review is not, as was said at the bar, substantially unbroken; it certainly has been at times interrupted— notably in the two monumental commonwealths of our country.

But, casting out all argument deduced from the law courts and without stoppoing to balance accounts as to the number of decisions on either side, there remains a consideration which is after all the court of last appeal in a land of free institutions under law, — a consideration which both underlies and tops all human laws, when its abiding place and its function can be disclosed. It is the overruling power of a sound and healthful public policy. It is to be conceived, we think, that the embodiment of it at this time and in this war is “the spirit of 1917.”

And this, too, may be done by precedent. We have been kindly and disinterestedly directed to the latest case of all on the subject within our knowledge by one not by any means bound to furnish us with this most useful, and what we regard as decisive, information. It is the ease of Posselt v. D’Espard, 101 Atl. 178, and it was decided in the court of chancery of New Jersey, April 21, 1917. An objection to the prosecution of the cause was made, in limine, on the sole ground that the complainants were alien enemies.

They were Germans and actually residing in Germany. They had, however, or one of them had, made declaration of his intention to become a citizen of this country in due form,— in other words, had taken out his first naturalization papers. They were majority stockholders and the substantial owners of a. New Jersey corporation. The defendants, following the true instinct of New Jersey, went about to wreck the company and seize upon the salvage. The complainants sought to have them enjoined from doing so. The plea was, for substance, that of the white man in- Plurabeuistah, when he was caught killing,— or robbing, — (we forget which) the Indian. The line of the poem which sums up the defense tendered — and, also in the case at bar — is this: “He’s no business — business none — to be an Injun. ”

The vice chancellor says: ■

“A preliminary objection is made to the prosecution of the cause upon the ground that the eomplainánts are alien enemies. The facts are conceded. The individual complainant is a subjeet of Germany, resident in this country, and has taken out his first xjapers. The corporation complainant is a subject of., and resident in, Germany. The bill is for the preservation of the rights of the complainants as stockholders in a New Jersey corporation and also in the interest of the New Jersey corporation for the protection of its rights against the action of the defendants. The German corporation is a majority stockholder, practically the owner, of the New Jersey corporation. The charge is that the defendants have deliberately set about to wreck the New Jersey corporation. No money decree is prayed for. If I should deny relief upon the ground stated by the defendants, then the property of alien enemies within this country, acquired in time of peace, may be ruthlessly taken away from them, not by the government, but by individuals, subject only to the restraint of criminal law. I am familiar of course with the very many learned opinions of publicists of other days, and also with the opinions of the Supreme Court of the United States, but I think that at this time to attempt to consider them in detail would unduly extend this opinion, and in the view that I take of the present situation would be wholly unwarranted. The right of government to confiscate property of alien enemies and close the doors of its courts to them, whether resident here or elsewhere, may be conceded. Whether that right is to be exercised is a matter of policy. The modem trend is to discourage interference with property rights, whether of friends or enemies, in time of war, except so far as may be necessary to effectively accomplish the objects of the war. Tho solution of the problem now before me, I think, is found in the president’s message to congress, which in view of the nature of its reception by congress and the action of congress under it has become the voice of the country; and the president’s proclamation declaring a state of war and defining rights of residents, an official act under authority of congress. German residents who comply with needful regulations and who properly conduct themselves are assured that they will be undisturbed in the peaceful pursuit of their lives and occupations and be accorded the consideration due to all peaceful and law-abiding persons, except sc far as restrictions may be necessary for their own protection and for the safety of the United States. To shut the door of the • court in the face of an alien enemy resident here would be a distinct violation of not only the spirit but the letter of this ] reclamation.
“With respect to the alien enemy resident in Germany the . situation is somewhat different, but I think not essentially so. The president has very carefully distinguished between the German government and the German people, and the sins of that government ought not to be visited up on-the people except so far as the legitimate interests of the United States require. I am convinced that there is no interest of the United States which requires the court, in advance of a definite command by the constituted authorities, to refuse to protect, at their instance, the rights of alien enemies resident abroad in property in this country. If it be said that this is in conflict with certain prior decisions the answer is that the solution of the question depends upon public policy, and while it is not the function of the court to establish a public policy, it is the function and the duty of the court to determine as a matter of fact what the policy actually is, and it is the policy of the present day, not that of some years ago, that must be determined. Toleranee is the keynote of the president’s proclamation, and by that T am bound. Tf the contention is made that to permit alien enemies resident, ^abroad to sue in our courts would be to lend aid and comfort to the enemy, I think the answer is that either the court or the •government may so act as to prevent any property coming into 1he possession of the enemy. I am unwilling to concede that either the government or the courts are powerless to prevent aid and comfort being given to the enemy without exercising the drastic power of refusing absolutely at the instance of an alien enemy to protect property rights within this country. I think the doors of the court are still open to all persons who properly behave themselves.
“The result is that the motion to stay the prosecution of this cause on the ground of alien enemy will be denied.”

But it may be said that this is* Jersey law and, that, like “Jersey lightning,” it may be very harmful. Very well; let us then assimilate Ohio law to it, or it to Ohio law.

We have, in the recent case of Pittsburgh, C., C. & St. L. Ry. v. Kinney ,95 Ohio St. 64; 62 Bull. Supp. 75, a deliverance made by a jurist who has at least one thing in common with Saul of Tarsus, in that he is — or was — “a citizen of no mean city,” and which tells us all about what public policy is, to wit:

“Public policy is the community common sense and common conscience extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like; it is that general and well-settled public opinion relating to man’s plain, palpable duty to his fellow men having due regard to all the circumstances of each particular relation and situation. ’ ’

Measured by this definition, the public policy of Ohio, I think stands manfully by the poor Hun in the case at bar and reads him and his lawsuit into the reason and the word of the New Jersey decision. He is under the protecting aegis of that law which is the foundation and the ultimate of all law fitting his case, as to him the law of the land, — expressed in terms of a wholesome and controlling public course of conduct, to be observed within their sphere by courts as well as individuals. We are easily constrained to follow it as a precedent. “Qui haeret in litter a, haeret in cortice,” — he who sticks in the letter sticks in the bark, — was the natural and accepted legal maxim of our rude Anglo-Saxon ancestor, who .went to field with a yew tree bow strapped to his back, We shall not let the letter of -the law kill its spirit — the spirit of 1917 — incarnate in the president’s proclamation, sanctioned by congress, followed by the New Jersey courts. “The letter killeth, but the spirit maketh alive, ’ ’ says St. Paul.

The plaintiff has still one more weapon in his armory of resource. When the late Cassius M. Clay began an abolition speech, in the blue-grass region, his custom was to lay on the desk a Bible, the Declaration of Independence and a Colt revolver. He called them his three arguments and used them in the order named. I am reversing that order.

The great Hebrew lawgiver said to his followers: “Love ye therefore the stranger; for ye were strangers in the land of Egypt.” May we not in like manner appeal to this just reminder of gratitude due and owing to the stranger within our gates?

I can remember when in the evil days of our own great war, when we were “strangers in the land of Egypt;” our bonds went begging in Lombard street. They were bought generously at Frankfort-on-the-Main. At the head of the lonely grave scraped out on the banks of the Shenandoah river, we made the inscription in the last words of the private soldier as the fragment of a shell sent him to his passionless slumber — “I fights mit Sigel. ’ ’

To our enemies we should be at least just, within law. And the oracles of the law cannot be offended thereat.

It is said that the inferior federal courts in Ohio are holding to the contrary view. We think it likely, — the vice chancellor took notice of a like fact also.

Never mind. We prefer — they not being set in authority over us — to follow the admonition of humanity sanctioned by at least two of the three branches., of this co-ordinate government of ours, adopted by several courts of last resort, justified by the words of the Hague Convention, obedient to the voice of humanity and by all these imbedded in the high law of public policy, at least until, if mistaken in conclusion, we shall be set right by our judicial superiors.

We have concluded to de-Prussianize the judgment at bar. It is contrary to law.

For that reason it is reversed, and the cause is remanded to the court from whence it came for such proceedings as should be had.

Carpenter and Lieghley, JJ., eoneur.