author: Metcalfe, J.

text:
    Mitchell, Exr., v. The City of Bridgeport.

      Executors—Action to quiet title—Right to maintain — Parties — Heirs of testator.

    Where a will directs the executor to sell the real estate of the testator and empowers him tó make deeds therefor to purchaser, such executor may maintain an action to quiet the title to such real estate against a person claiming an adverse interest therein, and it is not necessary that the heirs of the testator be parties thereto.
    (Decided December 11, 1917.)
    Error : Court of Appeals for Belmont county.

      Mr. James C. Tallman and Mr. Gordon D. Kinder, for plaintiff in error.

      Mr. Fred Spriggs, for defendant in error.
   Metcalfe, J.

The question in this case is raised by the demurrer to the petition. It is averred in the petition that the plaintiff is the executor of the will of Josephine K. Mitchell; that by the terms of said will he was directed to sell the real estate of the testatrix and to make deeds for the same and convey the title thereto to the purchaser; that the real estate in question was a part of the estate of said testatrix; and that the defendant claims an adverse interest therein.

It is urged by the defendant in error that the direction in the will to the plaintiff as such executor to sell the real estate and convey the title thereto to the purchaser, does not give him the right to maintain an action to quiet title, but that to entitle him to maintain such action it is necessary to aver and prove both legal title and actual possession.

Under former legislation it is undoubtedly true that the plaintiff in an action to quiet title would have to aver and prove both legal title and actual possession. Thomas v. White, 2 Ohio St., 540; Douglass v. Scott, 5 Ohio, 194; Harvey v. Eaton, 1 Dis., 65, and Chamberlain v. Marshall, 8 Fed. Rep., 398.

The statute then in force (29 O. L., 81) provided that “Any person having the legal title and possession of land may file a petition against any other person setting up a claim thereto.”

In Hubbard v. Clark, 8 Ohio, 382, Judge Hitchcock, delivering the opinion of the court, says at page 385:

“By this section of law a complainant, in order to sustain his bill, must show that he is vested not only with a legal title, but With the actual possession of the land in controversy.”

This was the unquestioned law of the state until 1893 — at which time the section above quoted appeared in the Revised Statutes as Section 5779, in substantially the words of the original enactment. The legislature in 1893 (90 O. L., 226) amended Section 5779, Revised Statutes, as follows:

“An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest; or such action may be brought by a person out of possession, having or claiming to have an estate or interest in remainder or reversion in real property, against any person who claims to have an estate or interest therein, adverse to him, for the purpose of determining the interests of the parties therein.”

This is stibstantially identical with the language. of Section 11901, General Code.

Under the law as it now stands it is plain that an averment of legal title in the plaintiff is unnecessary. Is it also unnecessary in such an action by an executor, where he is directed by thé will to sell the land of the testator and convey the title thereto to the purchaser, to aver actual possession?

We are of the opinion that such an averment is unnecessary. In Dabney v. Manning, 3 Ohio, 321, it is held that power given to an executor by the will to sell the testator’s land and distribute the proceeds among the heirs is a power connected with a trust, and entitles the executor to the possession of the land. In Lessee of Williams v. Veach, 17 Ohio, 171, the question again came to the same court, and, on page 183, the court say:

“It seems to the court, that taking the whole will together, it furnishes a strong case, of a power conferred by will upon executors to sell real estate, and that this power is coupled with an interest. A much stronger case, in fact, than the case of Dabney v. Manning, 3 Ohio R. 321; and upon careful examination we are brought to the conclusion that the court did not err in instructing the jury, that by force of the will of John Kidd the premises in controversy were vested in fee simple in his executors, and did not descend to his heirs.”

In Elstner v. Fife, 32 Ohio St., 358, it is held that where a testator makes no other disposition of his property except to direct that it shall be sold by his executors and the proceeds paid to a trustee for the benefit of certain legatees, the right of possession passes with the will to the executors to enable them to effect the object of the testator. See also Roberts, Admr., v. St. Bernard, 8 C. C., N. S., 422, 29 C. C, 725; Lessee of Boyd v. Talbert, 12 Ohio, 212, and Barkman v. Hain, 5 N. P., 508. These decisions settle the question of the right of the executor to the possession of the land. Whether or not he must aver actual possession to enable him to maintain an action to quiet title has not been determined by the supreme court of Ohio.

But in Sears v. Scranton Trust Co., 77 Atl. Rep., 423 (228 Pa. St., 126), the exact question came before the supreme court of Pennsylvania, and. in that case the court held:

“The direction to an executor to sell the decedent’s property and pay the proceeds to the widow gives the executor full power over the realty, and the right to maintain any action necessary to carry out the directions and protect the interests charged, including the power to maintain a bill to remove a cloud on the title.”

On page 426 the court say:

“The direction to the executor to sell the decedent’s property and pay the proceeds to the widow worked a conversion, and gave the executor full power and authority over the real estate, with the right to maintain any action at law or in equity which might be necessary to carry out the direction and to protect the interests with which it was charged.”

And, again, on the same page:

“While it is true that ordinarily a personal representative has not the right to maintain a bill or an action concerning the real estate of his decedent, the case is different where an executor is given an interest in the real estate such as under the present will. In a case like this where the executor is practically constituted a trustee of the real estate, and is directed to sell in order to effect a conversion, if a cloud exists upon the title, it is his right and duty to do all in his power to have the cloud removed so that he may more advantageously carry out the direction to sell.”

In Lafferty v. Sexton & Son, 41 Ia., 435, it is held:

“Where the possession and control of real estate is given to the executors for the purpose of carrying out the provisions of the will, they are authorized to maintain an action to quiet the title thereto.”

See also Smith, Exr., v. Stiles, 68 Wash., 345, 123 Pac. Rep., 448; Pennie v. Hildredth, 81 Cal., 127, 22 Pac. Rep., 398; Quinton v. Neville, 152 Fed Rep., 879; Dundas’s Appeal, 64 Pa. St., 325, and McClure’s Appeal, 72 Pa. St., 414.

A consideration of these cases seems to indicate that where a testator has directed his executor to sell the lands for the purpose of carrying out the provisions of his will, such direction works a conversion of the property and carries with it the title and possession necessary to enable him to maintain any action which may be necessary to carry out the provisions of a will, including an action to quiet title.

Judgment reversed.

Pollock and Farr, JJ., concur.


source: Caselaw Access Project

author: Pollock, j.

license: Public Domain

text:
    Hess, Exr., v. Clutz.

      Domestic relations—Action by husband for compensation—For services rendered by wife — Waiver of separate rights—Evidence— Wife competent witness—Executor as defendant.

    1. Sections 7995 to 7999, inclusive, General Code, do not deprive the Husband of his common-law right to maintain an action for the services of his wife, where such services were performed in furtherance of her husband’s business and in connection with tier domestic duties, although a third party had agreed to compensate her therefor, when by her conduct she waives her right to the compensation for such services as her separate property.

      2. In such an action, Section 11495, General 'Code, does not prevent the husband, where the adverse party defends as an executor, from calling his wife as a witness and introducing her testimony as to facts which occurred prior to the death of the testator.
    Decided December 20, 1917.)
    Error: Court of Appeals for Jefferson county.

      Mr. John D. Gardner, for plaintiff in error.

      Messrs. Mansfield & Merryman, for defendant in error.
   Pollock, j.

Francis B. Clutz brought an action in the court of common pleas of Jefferson county against Charles H. Hess, as executor of the estate of John A. Cunningham, to recover on an account which he claims was due him from the estate. The case was tried in the court below, resulting in a verdict and judgment in favor of the plaintiff, and this action is prosecuted to reverse that judgment.

Clutz, the plaintiff below, is a married man, and the fourth item of the account reads:

“For wages due my wife, Crete Clutz, for services performed for John A. Cunningham at his special instance and request.”

All the errors complained of relate to this item of the account, and can be considered under two heads:

1. Could the plaintiff below maintain the action for the amount of the wages due for services performed by his wife ?

2. If he could, is she a competent witness in behalf of the plaintiff below ?

In the fall of 1911 John A. Cunningham and Francis B. Clutz entered into a partnership to conduct a dairy on the farm of Cunningham, who lived in the village of Amsterdam, Jefferson county, the farm being some distance from that village. Cunningham was engaged in the banking business in the village. Just what each of the partners was required to do in furtherance of the partnership business, and how the business was conducted, does not very distinctly appear from the record. Mrs. Clutz is the only witness who testifies in regard to the partnership agreement and the employment of herself, for which her husband is now claiming compensation. This partnership continued until the death of John Cunningham.

Mrs. Clutz testifies that in the fall of 1912 Cunningham was at the dairy, and she and he had a conversation, which she claims to have been as follows:

“We had about 45 cows we were milking at that time. It was more work than I could do; Mr. Cunningham spoke that way, it was more work than I could stand. That he would hire the girl if we would board her, which we agreed to do; if we boarded her, he would pay the wages.”

She testifies that following this conversation Audrey Mason was employed at $3 per week; that she continued in this employment for a number of months; and that when she left a sister of Mr. Clutz was employed at the same amount per week. She testifies as to this-employment as follows:

“They needed a hand and Mr. Cunningham was to pay the wages if we would board her. He said, Ts it satisfactory to you to do the cooking?’ I said, ‘Anything to help along with the work;’ I was willing to do my share.”

The testimony further shows that these two girls during their employment worked in this dairy, milking cows, attending to the milk and such other work as was required about the dairy, and that they did some of the work of the housekeeping at the Clutz home. Mrs. Clutz testified that she, during the time that these girls were employed, worked in the dairy doing the same kind of work as they did.

We refer to this testimony, and the work which these girls did, because of its reflection upon the employment of Mrs. Clutz. After the second girl left, Mrs. Clutz claims that then she was employed to do the work that the- girl had been doing at the dairy. She testifies as follows:

“When Miss Clutz left,- my sister-in-law, he wanted to get another girl. I said, ‘Mr. Cunningham,’—I called him John, if he was satisfied T will work for $3 a week and do her share of the work.’ He said he was willing for me to have the money if I could stand the work. It was satisfactory to Mr. Cunningham and his mother to have me do that. Of course, Mrs. Cunningham is dead now.”

This is the substance of the testimony in the record in regard to her employment. She testifies that after this arrangement, stated above, she continued until the dissolution of the partnership to do the work that she had been doing and also that which each of the girls had done prior to her employment.

The question now arises, Can the husband recover the wages due from this estate for the services performed under this agreement by his wife ? It is urged that she was working there with her husband, and doing such work as a woman ordinarily would do for her husband, under similar circumstances, in a dairy or on a farm, and we may concede that that is correct. But this was not the dairy of Clutz. The work was performed in the dairy of Cunningham and Clutz. These girls and Mrs. Clutz were employed because the dairy needed additional help apart from that of the husband, and the arrangement between the partners was that Cunningham was to pay the wages and Clutz to board the girls.

Under the common law the husband had the sole right to recover for the services of his wife, but that rule has been changed by the provisions of Sections 7995.to 7999, inclusive, General Code; and under the provisions of these sections the supreme court of this state in the case of Bechtol v. Ewing, Admr., 89 Ohio St., 53, recognized the right of the wife to recover for her services performed under a contract with a third person. It must be conceded that under the principle announced by the supreme court in above case, Mrs. Clutz could have recovered in an action in her own name for these services. The question remains whether she has the sole and only right to recover.

Under the provision of Section 7995, General Code, the husband and wife contract towards each other obligations of mutual respect, fidelity, and support.

The following section provides that the husband is the head of the. family; that he may choose any reasonable place or mode of living, and the wife must conform thereto.

Then by Section 7997 the husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able.

As noted in the opinion in the case of The Baltimore & Ohio Rd. Co. v. Glenn, 66 Ohio St., 395, there is thus far little change in the statute from the common-law rule of the relation of husband and wife.

Then follows Section 7998, which provides that neither husband nor wife has any interest in the property of the other, except as mentioned in the .next preceding section, etc. And the following section provides:

“A husband and wife may enter into any engagement or transaction * * * with any other person, which either might if unmarried.”

The supreme court in the case of The Baltimore & Ohio Rd. Co. v. Glenn, supra, held that the sections just referred to did not abridge or affect the right of the husband to recover against one who wrongfully or negligently injures his wife, for loss of her services and for her necessary medical and other expenses in healing her injuries.

Then the court said in the case of Bechtol v. Ewing, Admr., supra, that the wife could recover compensation for her services rendered outside of the home of her husband, when such services were not in the discharge of her household or domestic duties, and not in interference therewith.

Mrs. Clutz testified that the services she performed in the dairy did interfere with her domestic duties in the home; she says she neglected these duties in order to do the work in the dairy — at least to a certain extent. Prior to her contract with Cunningham Mrs. Clutz was performing, with some assistance from the girl employed, her domestic duties at home, and working the remainder of her time in the dairy with her husband. The only change that was made in the services which she rendered at the dairy after the contract with Cunningham was that in addition to the work which she had been doing previous to that time, she did the work which' the girl had been doing.

In the opinion in the case of Bechtol v. Ewing, Admr., supra, Newman, J., refers to the New York statute in regard to the rights and liabilities of married women as being similar to the Ohio statute.

The court of appeals of New York in the case of Birkbeck v. Ackroyd, 74 N. Y., 356, 30 Am. Rep., 304, in construing the statute, say:

“The provision of the act of 1860, (§2, chap. 90, Laws of 1860), ‘concerning the rights and liabilities of married women,’ which authorizes a married woman ‘to perform any labor or service on her sole and separate account/ does not wholly abrogate the rule of the common law entitling the husband to the services and earnings of the wife; she may still allow him to claim and appropriate the fruits of her labor, and in the absence of an election on her part to labor on her account, or of circumstances showing her intention to avail herself of the privilege conferred by the statute, the husband’s common law right is unaffected.
“Where, therefore, the husband and wife are living together and mutually engaged in providing for the support of themselves and their family, and there is nothing to indicate an intention on the part of the wife to separate her earnings, the husband may maintain an action in his own name to recover them.”

And on page 359 of the opinion it is said:

“The duty still rests upon the husband to maintain and support the wife and their children, and it is not necessary, in order to give the wife the protection intended by the statute to hold that, irrespective of her intention, her earnings, in all cases, belong to her and not to the husband, and the language of the act does not admit of this interpretation.”

.Again, in the case of Porter v. Dunn, 131 N. Y., 314, 30 N. E. Rep., 122, this court announces the same principle in construing this statute.

The mere fact that the wife performs some service under a contract with a third person, by which he was to pay therefor, does not necessarily imply that the compensation was her own separate property, but she can devote her time and services while so employed to her husband, and allow him to receive the benefit of her labor.

If the labor is performed in the furtherance of the business in which the husband is engaged, and they are mutually engaged in laboring for their common benefit, the statute does not deprive the husband of his common-law right to recover for the services of his wife, when she does not elect to avail herself of her right under the statute, but assists her husband in collecting the fruits of her services. If she acquiesces and assists her husband in his effort to recover the value of her services rendered in advancing the enterprise in which he is engaged, the debtor can not defend on the ground that the husband can not maintain the action.

Mrs. Clutz, both before and after this contract with Cunningham, was doing work in this dairy in connection with her household duties. She was working along with her husband and advancing the business in which he was engaged. There is no indication that she ever asserted or intended to assert any right to the benefit of these services as her separate property; the exact opposite appears from the record. She is here testifying in behalf of her husband, both to the contract and to the services rendered.

We think that, notwithstanding the work for which recovery is sought was performed under a contract made by Mrs. Clutz with Cunningham, the husband is not deprived by the statute of his common-law right to recover the compensation due for the services of his wife.

The remaining question is, Was the wife a competent witness on behalf of the plaintiff below? Section 11495, General Code, provides a party shall not testify where the adverse party is an executor, etc., except as to facts which occurred after the appointment of the executor.

Mrs. Clutz was not a party to this action, and does not come under the direct provisions of this section. If she is prohibited from testifying on behalf of her husband it is under the following provision contained in the section:

“When a case is plainly within the reason and spirit of the next three preceding sections, though not within the strict letter, their principles shall be applied.”

The only question is, Does she come within the reason and spirit of the section? If the husband could maintain this suit under his common-law right for the services of his wife, she was not a necessary party, and he would not claim through any assignment or transfer from her to him, but through his own legal right to maintain the action under the circumstances already stated.

As was announced in the opinion in the case of Ryan v. O’Connor, 41 Ohio St., 368, 372:

“He was, therefore, not a necessary party to the action, and the reason and spirit of the statute which excludes the testimony of a party when the adverse party claims or defends as heir of a deceased person, should not apply so as to exclude his testimony.1”

A somewhat similar question was passed upon by-our supreme court in the case of Shaub v. Smith et al., 50 Ohio St., 648. And the court of appeals of New York, in construing their statute in a like case, held in Porter v. Dunn, supra, that the wife was a competent witness.

Under these authorities we think the objection to the wife "of Clutz testifying was not tenable.

The judgment of the -court below is affirmed.

Judgment affirmed.

Metcalfe and Farr, JJ., concur.


author: Allread, J.

text:
    Nash, Exr., v. Hamilton et al.

      Wills—Demonstrative or specific legacies — Bonds of named corporation— Sold by testator before death — Bequest satisfied, how.

    1. A bequest of “$2,000.00 of the first mortgage bonds of The Gallipolis Gas & Electric Company” is a demonstrative and not a specific legacy.
    2. The bonds described having been converted by the testatrix, the legacy is not thereby adeemed, but may be satisfied from any property or fund of the estate not specifically devised or bequeathed.
    (Decided January 5, 1918.)
    Appeal : Court of Appeals for Franklin county.

      Messrs. Williams & Nash, for plaintiff.

      Mr. G. E. Bibbee, for Darien C. Hamilton.
   Allread, J.

This cause involves a construction, of the following clause of the will of Mary Maxon Nash :

“To my sister Darien C. Hamilton, wife of F. W. Hamilton, I give and devise the following property: * * *
“(c) $2,000.00 of the first mortgage bonds of The Gallipolis Gas & Electric Company, said bonds being secured by mortgage upon both the gas and electric plants.”

At the time of the execution of said will the testatrix owned four first-mortgage bonds of the par value of $2,000, issued by The Gallipolis Gas & Coke Company, which operated a gas and electric' plant in said city, and which were evidently the bonds contemplated in the provision above quoted.

Subsequent to the making of the will the testatrix sold two of said bonds for the sum of $1,016.92. The other two bonds were, in the lifetime of said testatrix, liquidated, the testatrix receiving therefor the sum of $950.

At the time of the death of testatrix she held no bonds in said company.

Counsel for Darien C. Hamilton contends that the bequest under consideration is primarily one of $2,000, and that the bonds referred to merely designate the fund from which the beauest is to be raised.

On the other hand, counsel for the executor contend that the primary bequest is of the said bonds, and that the $2,000 is merely descriptive of the bonds.

If the latter contention prevails, then it would follow that the bequest was specific and that the sale of the bonds by the testatrix would have the effect of adeeming or revoking the legacy.

If the former contention is adopted, the bequest would become a demonstrative one, to be realized first from said bonds, and, in the absence of such bonds, then from other funds of the estate not specifically devised.

The respective contentions have been supported by counsel in able and exhaustive briefs in which all the leading authorities have been cited and reviewed.

In proceeding to a consideration of the construction of the clause above quoted we find that the authorities are practically unanimous that where the terms of a will are ambiguous or doubtful the courts are strongly inclined against a specific legacy and favor a construction which will make the same either general or demonstrative.

The reason for this is apparent when the nature of a specific devise is considered. The property which is made the subject of a specific devise is often disposed of in the lifetime of the testator, and, while the proceeds may remain in the testator’s estate, yet such proceeds cannot, for obvious reasons, be made liable to the specific devise. In many cases, therefore, the specific devise fails by operation of law, when the testator did not actually intend to adeem or revoke the legacy.

This rule of construction is thus stated by Wood, J., in Gilbreath v. Winter’s Exrs., 10 Ohio, on page 69:

“The distinction which marks the specific from the demonstrative legacy is frequently nice and difficult, but it is the oft-repeated language of the books that courts lean against the former, and it is with regret the chancellor declares he finds the intention .of the testator establishes a specific legacy.”

The same rule is thus stated in the case of Kenaday v. Sinnott, 179 U. S., 606:

“Certain familiar rules of construction of wills reiterated: (a) That the intention of the testator must prevail; * * * (c) that the courts in general are averse from construing legacies to be specific.”

Many other authorities are to the same effect. We therefore come to a careful examination of the language employed to determine whether the legacy was clearly intended to be specific.

The case of Rote v. Warner et al., 17 C. C,. 342, is cited. In this case the devise was of $10,000, payable out of certain shares of the capital stock of certain corporations, and this was held to be demonstrative.

The case of Ives v. Canby, 48 Fed. Rep., 718, is very similar to the case at bar and holds the devise to be demonstrative.

.Counsel for the executor insists that the preposition “of” is significant and is consistent only with the theory of a specific bequest of the bonds. While that construction is possible, yet we have no hesitancy in holding that such construction does not clearly follow.

Under what we consider to be the almost unanimous trend of authority we are bound to hold that the provision above quoted creates a. demonstrative legacy in favor of Darien C. Hamilton, and that, in the absence of the bonds referred to, the legatee is entitled to have the same satisfied out of other funds of the estate not specificalfy devised.

Decree accordingly.

Kunkle and Ferneding, JJ., concur.


author: Hughes, J.

text:
    Kutz, etc., v. The Acklin Stamping Co.

      Workmen’s compensation act—Minor is employe, when — Effect of employment under prohibited age.

    1. A minor who is legally permitted to work for hire under the laws of this state is an employe within the terms of the workmen’s compensation act, but not otherwise.
    2. Under the laws of this state, if an employer does not come within the terms of the workmen’s compensation act he is amenable to all of the other statutes of the state.
    3. An employer who employs a child under the age prohibited by statute must be prepared to show at all times that he is employed lawfully; and, when it appears that the minor is unlawfully employed, he is not an employe within the terms of the workmen’s compensation act, and such minor, if injured, has the benefit and protection of the other statutory provisions •passed for the benefit of labor.
    (Decided April 5, 1917.)
    Error: Court of Appeals for Lucas county.

      Mr. S'. S. Burtsfield, for plaintiff in error.

      Messrs. Marshall & Fraser, for defendant in error.
   Hughes, J.

The defendant owned and operated a factory or workshop in the city of Toledo, Ohio, with more than five employes engaged. The plaintiff, Walter Kutz, a minor between fifteen and sixteen years of age, was employed by the defendant during the latter part of May, to assist a stamper working on a stamping machine, by carrying to him what is known as yoke ends, or small pieces of steel, and placing them on a board near the machine. He was employed by the defendant to work during the night, from about six o’clock in the evening until five o’clock in the morning.

When the contract of employment was entered into there was no schooling certificate either produced by the plaintiff or procured by the defendant, nor was any reference or inquiry made regarding the same by either party.

It is contended on behalf of the defendant that the father of this boy represented to it that the boy was over sixteen years of age, but there is no claim and no evidence to support a claim that any inquiry was made of the boy or any assertion made by him regarding his age at or before the time he was employed.

On the night of June 28 a ventilating fan was installed by the defendant in an opening in one end of its building. This fan was four and a half feet in diameter, about four feet above the floor, with its steel blades projecting three and a half inches inside the line of the wall. The fan was installed on this day and put in operation before guards were placed about it. It is the claim of the defendant that it was started on this night for the purpose of testing, and that guards were to be placed about it later.

The plaintiff’s hand, as he claims, as he was reaching in a barrel for some of these yoke ends, came in contact with the steel blades of this revolving fan and was so injured that it became necessary to amputate it. Defendant asserts that plaintiff was throwing paper in the fan and thereby was injured.

The trial court directed the jury that it should disregard and give no heed whatsoever to the fact that the plaintiff was a minor; in effect charging that plaintiff came within the workmen’s compensation laws of this state, and, having elected to sue instead of asking for compensation out of the state insurance fund, became subject to all of the laws of this act, and that the defendant was entitled to the defenses of the common law, namely, contributory negligence and assumed risk.

There are numerous errors assigned, all of which have been examined into with care but will not be discussed separately for the reason that the general discussion following sufficiently disposes of them all.

If the plaintiff was an employe within the meaning of the workmen’s compensation act, the theory of the defendant and the trial court is correct.

An employer who has complied with the terms of this act is not liable for personal injuries to an employe in a civil action, but such employe must receive his compensation out of the state insurance fund. The exception to this is ■ found, however, in Section 1465-76, General Code, which reads as follows:

* * * And in case such injury has arisen from the wilful act of such employer or any of such employer’s officers or agents, or from the failure of such employer or any of such employer’s officers or agents to comply with any lawful requirement for the protection of the lives and safety of employes, then in such event, nothing in this act contained shall affect the civil liability of such employer, but such injured employe, * * * may, at his option, either claim compensation under this act or institute proceedings in the courts for his damage on account of such injury; * * * and in all actions authorized by this section, the defendant shall be entitled to plead the defense of contributory negligence and the defense of the fellow-servant rule; * * * ”

Another section of this act, Section 1465-93, General Code, reads as follows:

“A minor working at an age legally permitted under the laws of this state, shall be deemed sui juris for the purposes of this act, and no other person shall have any cause of action or right to compensation for an injury to such minor workman, but in the event of the award of a lump sum of compensation to such minor employe, such sum shall be paid only to the legally appointed guardian of such minor.”

The trial court no doubt assumed that the plaintiff in this case was within the terms of the act and therefore sui juris, and, having elected to sue in' the civil court, the defendant was entitled to plead the defense of contributory negligence and the fellow-servant rule.

The word “employee” as used in this act, is defined to be, in so far as a minor is concerned, “every person in the service of any person, * * * and also including minors who are legally permitted to work for hire under the laws of the state.” Section 1465-61, General Code.

It is here observed that a minor who is legally permitted to work for hire under the laws of this state is an employe within the terms of this act, but not otherwise.

There was no intention of the legislature to abridge the operation of the other statutes of our state. This act was passed for the purpose of creating a state insurance fund for the benefit of injured and the dependents of killed employes, and to provide for the administration of such fund. The purpose of the law is to compel the -industries of the state to bear the burden of accidents occurring in their operation, and the fund is created for this purpose. The right to participate in this fund is given to none other than employes or their dependents.

The act furnishes no excuse to the employer for violating any of the other statutory obligations regarding labor and minors. And under the laws of this state, if the employer does not come within the terms of the workmen’s compensation act, he is amenable to all of the other statutes of the state. He is prohibited by statute from employing minors under sixteen years of age before exácting from the minor the age and schooling certificate provided by law.

Section 12975 reads as follows:

“Whoever employs a minor under sixteen years of age before exacting from such minor the age and schooling certificate provided by law, or fails to keep such certificate on file, or who fails to return to the superintendent of schools or the person authorized by him such certificate within two days from such minor’s withdrawal or dismissal from his services as provided in section seventy-seven hundred and sixty or to permit a truant officer, upon request therefor, to examine such certificate, shall be fined not less than twenty-five dollars nor more than fifty dollars.”

And by virtue of Section 12994, an employer is not only prohibited from employing a minor in any of the occupations described in Section 12993, but is also prohibited from permitting a minor under sixteen years of age to work in connection with any of these vocations unless such employer has first procured from the proper authorities the age and schooling certificate provided by law. These two sections read as follows:

“Sec. 12993. No male child under fifteen years or female child under sixteen years of. age shall be employed, permitted or suffered to work in, about or in connection with any (1) mill, (2) factory, (3) workshop, (4) mercantile or mechanical establishments, (5) tenement-house, manufactory or workshop, (6) store, (7) office, (8) office building, (9) restaurant, (10) boarding-house, (11) bakery, (12) barber shop, (13) hotel, (14) apartment house, (15) bootblack stand or establishment, (16) public stable, (17) garage, (18) laundry, (19) place of amusement, (20) club, (21) or as a driver, (22) or in any brick or lumber yard (23) or in the construction or repair of buildings, (24) or in the distribution, transmission or sale of merchandise, (25) nor any boy under fifteen or female under twenty-one years in the transmission of messages.
“It shall be unlawful for any person, firm or corporation to employ, permit or suffer to work any child under fifteen years of age in any business whatever during any of the hours when the public schools of the district in which the child resides are in session.”
“Sec. 12994. No boy under sixteen years of age and no girl under eighteen years • of age shall be employed or permitted to work on or in connection with the establishments mentioned in section 12993 of the General Code, or in the distribution or transmission of merchandise or messages unless such employer first procures from the proper authority the age and schooling certificate provided by law.”

This certificate the employer is required to file in his office to be kept there subject to inspection upon request:

Section 12995 reads:

“Sec. 12995. The certificate mentioned in the section 12994 shall be filed in the office of such establishment and shall be produced for inspection upon request therefor by the chief or district inspector of workshops and factories or a truant officer and shall be returned forthwith to the superintendent of schools or other persons legally issuing it, by the person in charge or manager of such establishment upon the termination of the employment of such minor. Upon failure on the part of the employer so to return said certificate within two days, the child terminating his employment shall be entitled to recover from such employer in a civil action as damages an amount equal to the wages which he would have earned had he continued in said employment for the period between such termination thereof and the time when such certificate is so returned. If such child at any time fails to appear for work without explanation, the employment shall be deemed within the purposes of this section to have terminated upon the expiration of two days after his so failing to appear.”

And by Section 12996, regulating hours of employment, an employer is prohibited from permitting or suffering a boy under sixteen years of age to work in or about or in connection with any establishment or occupation named in the above-quoted Section 12993 before the hour of seven o’clock in the morning or after the hour of six o’clock in the evening. This section reads as follows :

“Sec. 12996. No boy under the age of sixteen and no girl under the age of eighteen years shall be employed, permitted or suffered to work in, about or in connection with any establishment or occupation named in section 12993 (1) for more than six days in any one week, (2) nor more than forty-eight hours in any week, (3) nor more than eight hours in any one day, (4) or before the hour of seven o’clock in the morning or after the hour of six o’clock in the evening. The presence of such child in any establishment during working hours shall be prima facie evidence of its employment therein. No boy under the age of eighteen years or girl under the age of twenty-one years shall be employed, permitted or suffered to work in, about or in connection with any establishment or occupation named in section 12993 (1) for more than six days in any one week, (2) nor more than fifty-four hours in any week, (3) nor more than ten hours in any one day, (4) or before the hour of six o’clock in the morning or after the hour of ten o’clock in the - evening. In estimating such periods, the time spent at different employments or under different employers shall be considered as a whole and not separately.”

These last five sections, above quoted, are found under the chapter of “Offenses against Minors,” and it will be observed by consulting 99 Ohio Laws, page 30, that it was the intention of the legislature to pass this act as an act to provide a complete system of certificates by which employers can determine the age of minor laborers; and also to make the minor-labor law conform with our compulsory-education law.

It cannot be argued with much force that in the face of this expressed intention an employer can ever excuse himself for thinking- a minor, under the prohibited age, old enough to enter his employment unless this certificate is produced at the time of employment.

The compulsory education laws provide that no child under sixteen years of age shall be employed or be in the employment of any person during the school term unless, the certificate is furnished.

Section 7765, General Code, as amended 103 Ohio Laws, 899, reads as follows:

“Sec. 7765. No boy under sixteen years of age and no girl under eighteen years of age shall be employed or be in the employment of any person, company or corporation unless such child presents to such person, company or corporation an age and school certificate herein provided for, as a condition of employment. Such employer shall keep the same on file in the establishment where such minor is employed for inspection by the truant officer or officers of the department of workshops and factories;”

Section 7766, General Code, as amended 104 Ohio Laws, 129, reads as follows:

“Sec. 7766. An age and schooling certificate shall be approved only by the superintendent of schools, or by a person authorized by him, or, in case of vacancy in the office of superintendent, by the clerk of the board of education, upon satisfactory proof that such child, if a male, is over fifteen years of age or, if a female, is over sixteen years of age and that such child has been examined and passed a satisfactory sixth-grade test, if a male, a seventh-grade test, if a female, in the studies enumerated in section seventy-seven hundred and sixty-two, provided, that residents of other states who work in Ohio must qualify as aforesaid with the proper school authority in the school district in which the establishment is located, as a condition of employment or service, and that the employment contemplated by the child is not prohibited by any law regulating the employment of such children. Every such age and schooling certificate shall be signed in the presence of the officer issuing the same by the child in whose name it is issued. * * *
“The age and schooling certificate must be formulated by the superintendent of public instruction, and furnished in blank by the clerk of the board of education. It shall show the date of its issue. A record giving all the facts contained on every certificate issued shall be kept on file in the office issuing the same, and also a record of the names and addresses of the children to whom certificates have been refused, together with the names of the schools which such children should attend and the reasons for refusal.
“The superintendent of schools or other persons authorized to issue employment certificates shall transmit between the first and tenth days of each month, to the office of the industrial. commission, upon blanks to be furnished by it, a list of the names of the children to whom certificates have been issued, returned or refused. Such lists shall give the name and address of the prospective employer arid the nature of the occupation the child intends to engage in.
“Any child between fifteen and sixteen years of age, who shall cease to work for any cause whatever, shall report the fact and cause at once to the superintendent of schools; or to a person authorized by him or, in case there is a vacancy in the office of superintendent, to' the clerk of the board of education; said child shall be required to return to school within two weeks, provided other employment is not secured within such time; provided that, should a child in the opinion of the superintendent or person acting in his stead, lose his employment by reason of persistent, wilful misconduct or continuous inconstancy, he may be placed in school until the close of the current school year.
“The superintendent of schools or the person authorized by him to issue age and schooling certificates, shall not issue such certificates until he has received, examined, approved and filed the following papers duly executed.
“ (1) The written pledge or promise of the person, partnership, or corporation to legally employ the child, also the written agreement to return to the superintendent of schools or to the person authorized by him to issue such certificates, the age and schooling certificate of the child within two days from the date of the child’s withdrawal or dismissal from the service of the person, partnership, or corporation, giving the reason for such withdrawal or dismissal.
“(2) The school record of such child, properly filled out and signed by the principal or other person in charge of the school which such child last attended, giving the name, age, address, standing in studies enumerated in section seven thousand seven hundred and sixty-two, and the number of weeks’ attendance in school during the school year previous to applying for such school record, and general conduct.
“(3) As evidence of age (a) a passport or duly attested transcript of a passport, filed with a registrar of passports or other officer charged with the duty of registering passports at the several ports of entry to the United States; or duly attested transcript of the certificate of birth or baptism or other religious record, showing the date and place of birth of such child; or (b) a duly attested transcript of the birth certificate filed according to law with a registrar of vital statistics, or other officer charged with the duty of recording births, shall be conclusive evidence of the age of the child, (c) In case none of the above proofs of age can be pro-, duced, other documentary evidence of age which shall appear to be satisfactory to the officer issuing the certificate, (aside from the school record of such child or the affidavit of parent, guardian or custodian), may be accepted in lieu thereof. In such case a school census or enumeration record, duly attested, may be used as proof of age in the discretion of the officer issuing the certificate, (d) In case no documentary proof of age of any kind can be procured, the officer issuing the cértificate may receive and file an application signed by the parent, guardian or custodian of the child for a physician’s certificate. Such application shall contain the name, alleged age, place and date of birth, and present residence of the child, together with such further facts as may be of assistance in determining the age of such child, and shall contain a statement certifying that the parent, guardian or custodian signing such application is unable to produce any of the documentary proofs of age specified in the preceding subdivisions of this section. If the superintendent or officer authorized by him to issue such certificate, is satisfied that a reasonable effort to procure such documentary proof has been made, the certificate of the school physician, or, if there be none, of a physician employed for the purpose by the board of education, that such physician has made a physical examination of such child and is satisfied that he is more than fifteen years of age, if a male or that she is more than sixteen years of age, if a female shall be accepted as sufficient proof of the age of such child for the purpose of this act:
“(4) A certificate from the school physician or if there should be none, of the board of health, and if there be no board of health, within the school district in question, from a licensed physician appointed by the board of education showing that the child is physically fit to be employed in any of the Occupations permitted by law for a child between ¡fifteen and sixteen years of age. Provided that if the records of the school physician show such child to have been previously sound in health, no further physician’s certificate need be required, but the officer authorized to issue such certificate may at his discretion require such physician’s certificate in any case, as a condition to the issuing of an age and schooling certificate.
“The superintendent or person authorized by him may issue special vacation certificates to boys under sixteen years of age and girls under eighteen years of age, which shall entitle the holders thereof to be employed during vacation in occupations not forbidden by law to such children even though such child may not have completed the sixth grade, but provided he has complied with all the other requirements for obtaining the certificate hereinbefore described.”

It is clear from a reading of these statutes providing for compulsory education and defining offenses against minors that it was the intention of the legislature to consider a minor under the age of sixteen years, who was unlawfully employed, to be a person not within the contemplation of the workmen’s compensation act.

These statutes, quoted above, compelling education and defining offenses against minors, were intended to prevent persons of immature judgment from engaging in hazardous occupations, to prevent employment and overwork of children during the period of their mental and physical development, and to prevent competition between weak and underpaid labor and mature men owing to society the duties of citizenship; and the compensation act in no way limits their operation.

An employer who employs a child under the prohibited age must be prepared to show at all times that he is employed lawfully. And when it appears that the minor is unlawfully employed, he is not an employe within the terms of the. compensation act, and such minor, if injured, has the benefit and protection of the other statutory provisions passed for the benefit of labor. Hillstad v. Industrial Commission, 80 Wash., 426, 141 Pac. Rep., 913.

Section 6245-2, General Code, relating to actions to recover from an employer for personal injuries caused by negligence, provides:

“Sec. 6245-2. That in all such actions where a minor employee has been employed or retained in employment contrary to any statute or law of the state or United States, such employee shall not be deemed or held to have been guilty of contributory negligence; nor to have assumed any of the risks of such employment; but the employer may show by way of defense any fraud or misrepresentation made by such employee.”

This being true, the trial court erred in taking away from the jury for its consideration the fact that plaintiff was a minor under the age of sixteen 'years.

Plaintiff not coming within the terms of the workmen’s compensation act was also entitled to the benefit of Section 1027, subdivision 7, of the General Code. See Variety Iron & Steel Co. v. Poak, 89 Ohio St., 297, and Jones v. American Caramel Co., 225 Pa. St., 644, 74 Atl. Rep., 613.

The judgment of the court of common pleas is reversed.

Judgment reversed.

Kinder and Crow, JJ., concur.

Judges of the Third Appellate District, sitting in place of Judges Chittenden, Kinkade and Richards of the Sixth Appellate District.


text:
    Bucilli et al. v. Hoffman et al.

      Justices of peace — Forcible entry and detainer—Jurisdiction confined to township, when.

      1. In actions of forcible entry and detainer the jurisdiction of the justice of the peace is coextensive with the county, but such jurisdiction must be exercised in the township in which he is elected.
    2. Where a justice of the peace issues summons in a case of forcible entry and detainer, returnable in a township of the county other than the one in which he is elected, and hears the case and renders judgment in such other township, the judgment is void.
    (Decided March 15, 1918.)
    Error: Court of Appeals for Mahoning county.

      Mr. J. M. Moderrelli, for plaintiff in error.

      Mr. David Steiner, for defendant in error.
   Metcalfe, J.

The plaintiffs in error seek to obtain an injunction against the defendants in error to prevent the enforcement of a judgment of eviction in a case of forcible entry and detainer, claiming that the judgment is void for want of jurisdiction in the justice of the peace to render the same.

The plaintiffs in error are the lessees of the property in question, which is situated in the township and city of Youngstown. Hoffman is the lessor. The action of forcible entry and detainer was brought by Hoffman in the court of the defendant Brown, a justice of the peace. Brown was elected to such office of justice of the peace in the township of Boardman, Mahoning county, but maintained an office in the city of Youngstown.

The summons in that case was issued by the justice returnable at his office in the city of Youngstown, and the case was tried and judgment rendered therein in the city of Youngstown, and not within the limits of the township of Boardman.

The only question we have here is: Did the justice of the peace, in an action in forcible entry and detainer, have the -right to hold court and render judgment in a township other than the one in which he was elected? In Steele v. Karb, Sheriff, 78 Ohio St., 376, it is held that in criminal cases the jurisdiction of the justice is coextensive with the county containing the township in which he was elected, and that he may hold such court anywhere within the county. His power is granted under Section 13422, General Code, which provides that he shall be a conservator of the peace, and that he may upon view or information cause the arrest of a person and issue a warrant commanding him to be brought before himself or before some other justice of the peace within the county.

We do not think, however, that such is the rule in any civil action. By Section 10223 it is provided : /

“Unless otherwise directed by law, the jurisdiction of justices of the peace in civil cases, is limited to the township wherein they were elected, and wherein they reside. No justice of the peace shall hold court outside of the limits of the township for which he was elected.”

This provision is perfectly clear and prohibits in all civil cases a justice from holding court outside of the limits of the township for which he was elected, unless otherwise directed by law.

It is claimed here that he is otherwise directed by Section 10224, General Code, paragraph 5, which confers upon the justices of the peace jurisdiction to try forcible entry and detainer cases throughout the county, that is to say, his jurisdiction to try that class of cases is coextensive with the county; but that does not confer upon him authority to go outside of his township, issue summons outside, returnable outside, and hold court and render judgment outside, in view of the explicit provisions of Section 10223 that no justice shall hold court outside of the township in which he is elected.

We think that such action is entirely unwarranted, and that the defendant Brown could not exercise the jurisdiction of a justice of the peace outside of the township in which he was elected; but plainly has the right to bring the defendant in such case into the township where he was elected.

Judgment for plaintiffs.

Pollock and Farr, JJ., concur.


author: Houck, J.

text:
    Keesey v. Glass, Admr.

      Contracts — Express and implied—Degree of proof — Services rendered decedent — Charge to jury.

    In an action for recovery on a contract for services, it is prejudicial error in charging the jury to speak of the contract as implied, without any explanation as to what proof is required to establish an implied contract, but leaving the jury to infer that an implied contract could be established by the same evidence as an express contract, where the evidence cleanly showed the kind of contract in suit.
    (Decided July 2, 1917.)
    Error : Court of Appeals for Coshocton county.

      Mr. Joseph L. McDowell and Mr. W. S. Merrell, for plaintiff in error.

      Mr. F. E. Pomerene and Mr. T. H. Wheeler, for defendant in error.
   Houck, J.

Error is here prosecuted to reverse the judgment of the common pleas court in this case.

The plaintiff brought suit to recover from the estate of Carrie L. Lahm, deceased, the sum of $4,255, which he claimed to be the reasonable value of certain work and services done and performed by him for the said Carrie L. Lahm prior to her death. The services for which he seeks to recover were performed between the 1st day of March, 1911, and the 21st day of January, 1915. The answer filed was in substance a general denial. The cause was submitted to a jury upon the pleadings and the evidence; the jury returned a verdict for the defendant; and, judgment having been entered on the verdict, error is here prosecuted praying for a reversal of said judgment.

We have given this case careful consideration, and have read the bill of exceptions, and were materially aided in our examination of the record and the bill of exceptions by the very able oral arguments of counsel, as well as by the written briefs filed in the case by them.

Plaintiff in error insists that the trial judge erred prejudicially to his rights in the premises in giving to the jury certain written charges before argument, as requested by the defendant. We think it necessary to discuss but two of these requests, namely, Nos. 2 and 3, which are as follows:

“No. 2. I charge you that this is a suit to recover from the estate of defendant’s decedent compensation for his services alleged to have been, rendered under an implied contract. Whether the contract is express or implied, the meeting of the minds of the parties.upon its terms is necessary to the making of the contract. If the minds of the parties did not meet on any terms of agreement, there is no contract.
“No. 3. If you find from the evidence that at the time plaintiff went to live in decedent’s home he did so under an agreement to render the services shown by the evidence to have been performed by him for decedent, and that he was to receive as compensation therefor his room and board, and with no provision for further or other compensation, then plaintiff can not recover in this action, and your verdict should be for the defendant.”

When written requests of propositions of law are asked to be given to a jury before argument the trial judge must give the same if they are sound propositions of law pertaining to the issue or issues raised by the pleadings and applicable to the proven facts in the case. Although a request may be sound, as an abstract proposition of law, yet the trial court will not commit error by refusing to submit it to the jury unless it is clearly applicable to the issues to be determined and the facts in the case as established by the evidence.

The question then for our consideration and judgment is: Did or did not the trial judge err prejudicially to the rights of plaintiff in error in submitting to the jury such requests? We must answer this inquiry in the affirmative. Having done so it is our duty to assign our reasons for so doing, which, briefly stated, are as follows:

We think request No. 2 is clearly misleading and prejudicial to the rights of plaintiff in error. In clear language it states that the services alleged to have been rendered by the plaintiff for the defendant were by reason of an implied contract. It then states, “Whether the contract is express or implied, the meeting of the minds of the parties upon its terms is necessary to the making of the contract. If the minds of the parties did not meet on any terms of agreement, there is no contract.”

If the contract was an implied one then it had no connection with an express contract. Then why should any reference be made to an express contract, if the plaintiff did not rely upon such to recover? The evidence necessary to establish an implied contract is very different from that required to prove an express contract. In an express contract all the terms and conditions are expressed between the parties, and they arrive at their agreement by words either oral or written, while in an implied contract some of the terms and conditions are implied by law from the conduct of the parties. Thus, where one performs for another, with his knowledge, consent and acquiescence, some useful or valuable service, however small it may be, that is commonly charged for, and the same is accepted, a promise to pay what the same is reasonably worth is implied. It will be observed that in the request now under consideration there is no explanation as to what proof is necessary to establish an implied contract, but in effect, at least, the language used would imply that the same proof would be necessary to establish an implied contract as is required in an express contract.

As to request No. 3, we will say that the real force and effect of the language used — if we are able to properly analyze and interpret same— charges that the contract was an express one. Both of these requests are vague, uncertain and indefinite, and we think are very misleading and highly prejudicial to the substantial rights of the plaintiff in error.

If we apply the rule of law as herein laid down as a test to the above requests we can reach but one conclusion, and that is that the common pleas court was in error in submitting them to the jury.

Finding error in the record prejudicial to the rights of the plaintiff in error, the judgment of the common pleas court is reversed and the cause remanded to that court for a new trial.

Judgment reversed and cause remanded.

Powell and Shields, JJ., concur.


author: Lieghley, J.

text:
    Modern Brotherhood of America v. Nyiry.

      Court of appeals—Jurisdiction — Second reversal on weight of evidence—■Constitutional law.

    A court of appeals has jurisdiction to reverse the same case a second time on the weight of the evidence against the same party. Section 11577, General Code, is a part of the chapter relating to the trial court, and, in the absence of express words or of words creating the inference, said section has no application to courts of appeals. . Moreover, the right of reversal granted to the court of appeals by the constitution, is jurisdictional and not procedural, and if said section may be said to apply to the court of appeals, it is, to that extent, in conflict with the constitution.
    (Decided July 2, 1917.)
    Error : Court of Appeals for Cuyahoga county.

      Mr. C. W. Collister and Mr. Jas. T. Walsh, for plaintiff in error.

      Mr. T. S. Dunlap, for defendant in error.
   Lieghley, J.

The parties stood in reverse order in the court below, and for convenience will be mentioned herein as they were below.

The plaintiff brought suit in the common pleas court upon a benefit certificate of the defendant company for the sum of $1,000, which covered the life of her husband, John Nyiry. Trial was had in the court of common pleas, which resulted in a judgment for plaintiff, from which judgment error was prosecuted to the court of appeals, and upon due consideration thereof the court of appeals reversed the judgment on the weight of the evidence and entered final judgment. Error was prosecuted to the supreme court of Ohio, which resulted in an affirmance of that part of the judgment of the court of appeals reversing the case on the weight of the evidence, and a reversal of that part in which it undertook to render final judgment. The case was remanded to the court of common pleas for further proceedings. The cause again-came on-for trial in the common pleas, and resulted in a verdict for plaintiff, upon which judgment was entered, from which judgment error is prosecuted to this court to reverse the same.

It appears from the record that the deceased was examined in August, 1910, by Dr. Evans, who found him suffering from enlarged spleen and liver, and again examined in March, 1911, at which time the doctor found him afflicted in the same manner, but with the disease somewhat progressed. The deceased took sick about January 26, 1911, afflicted with cirrhosis of the liver and a general dropsical condition. He was taken to the hospital and there examined by other doctors, who made the same diagnosis of his condition. The doctor who examined him in January declared that he was in the tertiary stage; that the disease is divided into three stages, primary, secondary and tertiary; and that the disease had progressed to the most advanced stage. The doctors agree that considerable time is required for the development of this disease to the stage in which they found him upon examination. In the early part of March he was in Lakeside Hospital and was examined by the house physicians. These doctors were called, and testified as to the advanced stage of his disease, and that the deceased had told them that he had been suffering for over eight months therefrom. The proof is overwhelming, when the testimony of the doctors and those who are presumed to know is considered, that the deceased in December, 1910, and theretofore, was afflicted with the disease of which he died about May 29, 1911.

. In the early part of December, 1910, the deceased was an applicant to membership in the society of defendant. The application is a part of the policy, and contains questions propounded to the applicant and his answers thereto recorded, which are made warranties of the truthfulness thereof by the terms of the contract.

In the answer filed by defendant it is claimed that said application contains the following question: “When and by what physician were you last attended and for what complaint?” That the answer recorded thereto is “No.” And the defendant claims that the answer to this question was false and untrue, and, being a warranty, defeats plaintiff’s right of recovery.

A reply was filed thereto by the plaintiff in which facts are plead to the effect that said question was never propounded to the applicant and the answer not given. Facts are plead in the reply which it is claimed constitute an estoppel.

Plaintiff sought to verify her position and more solidly establish her right to recover by calling a large number of witnesses to testify as to the physical appearance and condition of the applicant at or about the time the certificate was issued. However, these witnesses could only testify as to appearances at that time, and were not such as were thoroughly qualified to pass upon the fact of whether or not the applicant was diseased in the manner overwhelmingly established by the medical proof in the case and the circumstances and facts developed by the proof.

The state of the evidence has not been changed in any respect from what it was when the case was formerly here for review; with this exception, that the jury was requested by interrogatory to answer the following question: “Did the examining physician for the defendant when he prepared the application of John Nyiry, ask of him the following question: When and by what physician were you last attended and for what complaint ?’ ” To which question the jury answered: “John Nyiry was not asked the following question: When and by what physician were you last attended and for wh&t complaint ?’ ”

The force of this interrogatory and answer thereto is rendered negligible by the state of the proof. The physician who examined him as an applicant testified that he did not ask that exact question; that he used the word “doctor” for “physician,” and the word “sickness” for “complaint,” in order that he might the better reach the understanding of the applicant. He gave the exact substance of the question, but not the exact words. In short, the request for special finding submitted to the jury was not based upon the state of the proof in the case, and the jury truthfully could only answer “No,” for the defendant was not claiming that the question in the exact words was submitted; but it claimed at all times, and proved, that the whole substance and the exact meaning of the question was put to the applicant. So that the special finding of the jury after all presents a new fact, but one of little or no probative value.

We have therefore reached the conclusion that the state of the evidence is the same now as it was when the case was here before for review, and that the judgment of the court below should be reversed on the weight of the evidence, unless the established law of the state precludes us from a judgment of reversal.

Section 11577, General Code, reads sis follows:

“The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.”

This section was formerly Section 5306, Revised Statutes, and received judicial interpretation in the case of The Columbus St. Ry. Co. v. Pace, 68 Ohio St., 200, the syllabus of which reads as follows:

“The provision in Section 5306, Revised Statutes, that: ‘The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case;’ has special and exclusive application to trial courts, and such provision does not operate as a limitation upon the power of the circuit court, as a court of error, to reverse a case any number of times, on the ground that the verdict of the jury in the trial court was against the weight of the evidence.”

In the opinion, Crew, J., at page 209, says as follows:

“It was doubtless the design and purpose of the legislature by the enactment of Section 5306, Revised Statutes, to thereby restrain the unlimited discretion of trial courts over verdicts of juries, whose peculiar province it is under our system of jurisprudence, to determine the facts. But in the absence of any such expressed intention, or irrestible implication arising from the language employed in the statute itself, we think it could not have been intended by the legislature by this act to limit, or take away the jurisdiction, or to restrict and limit the power of the circuit court to but a single reversal, on the ground that the verdict of the jury in the court below was against the weight of the evidence. To give this act a construction that would thus restrict the power of the circuit court, would, we think, be far more calculated to injure than to preserve, the usefulness of the trial by jury:”

Section 11577, General Code, will be found in the chapter relating to the jurisdiction and procedure of trial courts. Presumably the legislature had in mind only and was dealing solely with the subject about which it was legislating. Neither by express words nor by words that will reasonably bear the implication is this section made referable to any other court than the trial court. In the absence of such, the presumption is strong that the application of the section is limited to the subject-matter being dealt with.

We are not unaware of the fact that said Section 5306, Revised Statutes (now Section 11577, General Code), was amended by the legislature in 1908 by the addition thereto of the following words:

“Nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.”

. Reference to this amendment was omitted from the original opinion for the reason that, in our judgment, the section as amended does not in any degree change the principle which controls the situation in the present case. Nor does the amendment, in view of the fact that the jurisdiction of this court is exclusively' obtained from the present constitution, render less forcible the language of the supreme court in the case last above cited, nor change the rule governing this case. Reference thereto was omitted for the reason that, if the section expressly mentioned the court of appeals, as we view it, the situation would not be altered. The jurisdiction of the court of appeals is obtained solely from, and is defined by, the 'constitution. The legislature has no authority to say what subject-matters are cognizable by courts of appeals. Thompson v. Redington et al., 92 Ohio St., 101; Bayes v. The Midland Casualty Co., Id., 303, and Cincinnati Polyclinic v. Balch, Id., 415.

In the opinion in the Polyclinic case, the court, at page 418, says:

“Section 6, Article IV, as amended, confers upon the courts of appeals jurisdiction to review, affirm, modify, or reverse all judgments of the courts of common pleas. There is no authority on the part of the legislature to limit the jurisdiction of the courts of appeals to any particular class of judgments. It cannot add to or take from the appellate jurisdiction of the courts of appeals now conferred by the constitution.”

However, it is urged that the right of a second reversal is governed by Section 11577, General Code, as amended, upon the ground that the same is procedural. This might perhaps have been claimed at a time when the jurisdiction of this court was prescribed by statute. But not so, after the jurisdiction of this court was fixed by a vote of the people of Ohio in 1912, in the form of an amendment of Article IV, Section 6 of the Constitution. It is to be presumed that in so changing the jurisdiction of this court from a statutory to a constitutional source, a real change was intended. An intended change from the amended statute of 1908 may be conjectured.

The language of the constitution now is:

“The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law.”

It will be noticed that the language is “the judgments.” Is the judgment following a second trial of a cause any less a judgment than the one following the first trial of a cause? If the legislature may declare that the jurisdiction of this court is diminished to the extent of denial of the right to review a second judgment on the weight of the evidence, on the ground that it is procedural, then are we not obliged to look to the statutes as well as to the constitution for our jurisdiction? May the legislature make two classes of judgments, those following a first trial and those following a second trial, and then say, you may reverse the first class but not the second? If so, then it may deny the right to reverse a second time for error in the exclusion of evidence. Or, it may deny the right to reverse a case a second time for error in the charge. The supreme court of Ohio has denied to the legislature this authority in the language above quoted.

When a petition in error shall be filed, when a bill of exceptions shall be presented and filed, what bond shall be given, what steps shall be taken to transfer a cause for review, are procedural matters. But when once transferred in compliance with prescribed rules, the right to entertain and consider the subject-matter is jurisdictional. If no method for prosecuting error from the judgments of the court of common pleas was provided, another question would be presented. But one is provided, and in the case at bar all necessary steps were taken to obtain a review, and a judgment of the court of common pleas is before us. The constitution says you may review the judgment of the court of common pleas. The supreme court of Ohio said, in the language above quoted, you may review all judgments. In face of this authority, it is urged that power yet resides in the legislature ; and that a legislative enactment may be invoked to dispute our authority to review and reverse this kind of judgment — that this kind of judgment is in a class by itself.

We are not unmindful of the case of The Mahoning Valley Ry. Co. v. Santoro, Admr., 93 Ohio St., 53. If the syllabus states the law of the case, it is silent upon the subject of the right- of a court of appeals to reverse a case a second time upon the weight of the evidence. However, the opinion by a majority of the court deals with the subject. So far as the language of this case is concerned, the case of Columbus St. Ry. Co. v. Pace, supra, was not considered, referred to, or disapproved. The dissenting opinion by Judges Newman and Jones held that Section 11577, General Code, has no reference to courts of appeals; that the right of reversal is jurisdictional and not procedural; that the court of appeals now obtains its jurisdiction from the constitution, where formerly it was granted by statute; and that, so far as said section may be claimed to be applicable to the courts of appeals, it is in conflict with the constitution.

So we hold that this court has jurisdiction 1o reverse the same case a second time on the weight of the evidence against the same party, for the following reasons:

1. Said section is a part of the chapter relating to the trial court, and, in the absence of express words or of words creating the inference, said section has no application to courts of appeals.

2. That the right of reversal is granted to the court of appeals by the constitution, is jurisdictional and not procedural, and if said sections may be said to apply to this court it is to that extent in conflict with the constitution.

We are supported in this opinion and derive our authority for it from the case of Columbus St. Ry. Co. v. Pace, supra, in which judgment all members of the court concurred; and also from Cincinnati Polyclinic v. Balch, supra, and the dissenting opinions of Judges Newman and Jones in the case of Mahoning Valley Ry. Co. v. Santoro, supra.

Our opinion in this matter is opposed by the majority opinion in the case of Railway Co. v. Santoro, supra, in which case, however, the syllabus is silent in respect to the subject-matter under consideration.

In this unsettled state of the law as to what our jurisdiction is and what our right is in respect to reversing the same case a second time upon the weight of the evidence, we adhere to the opinion that we have jurisdiction to do so, and the judgment of the lower court is reversed and the cause remanded at the costs of the defendant in error.

Judgment reversed.

Grant and Carpenter, JJ., concur.


text:
    Young et al. v. Thedieck.

      Real property—Overhanging cornice—Implied easement — Party •wall—Remedies — Mandatory injunction.

    1. The construction and maintenance, by a lot owner, of a cornice extending beyond the party wall, and over the lot of an adjoining proprietor, without his acquiescence or consent, is a violation of the latter’s property rights.
    2. The establishment of a party wall does not by implication give one proprietor the right to extend his structure over the adjoining lot.
    3. The fact that the overhanging cornice is constructed above the present building on the adjoining lot and does not affect the present use thereof is no defense.
    4. Mandatory injunction, is an appropriate remedy to enforce the property rights so violated.
    (Decided February 13, 1918.)
    Appeal : Court of Appeals for Shelby county.

      Mr. D. F. Mills, for plaintiffs.

      Messrs. Hess & Hess, for defendant.
   Allread, J.

This action was brought to obtain a mandatory injunction to compel the removal of an overhanging cornice.

The pleadings and agreed statement of facts show that in the construction of a1 four-story building the defendant extended the cornice some two or three feet over the premises of the plaintiffs. It appears that the cornice is above the plaintiffs’ building and does not interfere with the present use of the plaintiffs’ property.

There is a party wall between the buildings of the respective parties, which has been extended upward to accommodate and form part of the defendant’s structure.

The question involved is as to the defendant’s right to maintain the overhanging cornice.

We are of opinion that the defendant’s easement in the party wall does not extend beyond the wall itself, and that the construction and maintenance of the cornice extending over plaintiffs’ premises is a violation of their property rights. Harrington v. McCarthy, 169 Mass., 492; Nash v. Kemp, 49 How. Pr., 522, 12 Hun, 592, and Marion v. Johnson, 23 La. Ann., 597.

We have examined the cases cited by counsel for defendant, involving windows, chimneys and upward extensions of party walls. In none of those cases do we find any overhanging structures extending beyond the partition wall. We think all these cases may be distinguished upon that ground.

We are also of the opinion that the fact that the cornice does not now interfere with plaintiffs’ use of their property does not affect the question. The plaintiffs’ property rights extend upward indefinitely and those rights may be enforced against invasion to the same extent as surface rights.

A mandatory injunction will therefore be issued requiring the defendant to remove the cornice and overhanging structure within six months, and defendant will be required to pay costs.

Decree accordingly.

Kunkle and Ferneding, JJ., concur.


author: Metcalfe, ].,

text:
    The Croxton Mining Co. v. Hubbard, Admr.

      Statute of limitations—Claim against estate—Defenses—Failure ' of administrator—To give notice of appointment.

    Section 10757, General Code, requires notice to be given of the appointment of a new administrator, and where there is a failure to give such notice the limitation provided by Section 10722, General Code, will not avail as a defense to an. action brought more than six months after the rejection of the claim.
    (Decided March 15, 1918.)
    Error: ' Court of Appeals for Lake county."

      Messrs. Squire, Sanders & Dempsey and Mr. Harry E. Hammar, for plaintiff in error.

      Messrs. Holden, Hasten, Duncan & Leckie, for defendant in error.
   Metcalfe, ].,

This case was certified to this court from Lake county. Plaintiff in error here was plaintiff below and sought to recover from the defendant, as administrator, etc., upon two promissory notes aggregating about $18,000. These notes were executed by the firm of Drake, Bartow & Company to the plaintiff, The Croxton Mining Company.

The facts necessary to an understanding of the question before us are substantially as follows: The plaintiff is. a mining company operating in Minnesota. The firm of Drake, Bartow & Company, dealers in iron ore, as a firm executed the notes in question to The Croxton Mining Company some time in the year 1910. In 1912 Mr. Drake died, by his death the firm was dissolved, and soon afterward an action was brought by the plaintiff upon these two- notes against John H. Bartow, as one of the members of the firm of Drake, Bartow & Company. Before the case was tried Mr. Bar-tow died, and the action against him was dismissed. After the death of Mr. Bartow, Pauline L. Bar-tow was appointed executrix of his will. The plaintiff’s claim was then presented to Pauline Bartow, as such executrix, but, before she had acted thereon, she died, and the defendant, Sterling W. Hubbard, was appointed administrator with the will annexed; and on the 4th day of December, 1913, he rejected the claim. After Mr. Hubbard’s appointment as such administrator with the will annexed he failed to give notice of his appointment, and has never given such notice. Before the expiration of six months following the rejection of the claim a petition was filed against Hubbard, as administrator, and summons issued, which was returned not served, the defendant not being found in the county. No alias summons was issued until about seven months after the rejection of the claim, when such summons was issued and served upon the defendant.

It is claimed that, by reason of the fact that more than six months passed from the date of the rejection of the claim until summons was served 'upon the defendant, the action was barred by the statute of limitations. That is the only question we have > to determine, and such determination depends entirely upon the construction to be given to the language of Section 10757, General Code.

Section 10722, General Code, provides:

“If a claim against the estate of a deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or rejected by him, and has not been referred within six months after such dispute or rejection, if the debt, or any part of it be then due, or within six months after some part becomes due, the claimant must commence a suit for the recovery thereof, or be forever barred from maintaining an action thereunder. No action shall be maintained thereon after such period, by a person deriving title thereto, from such claimant.”

It would seem to be an indisputable proposition that under the provisions of this section the plaintiff is barred, unless there is some saving clause in the statute which would relieve him from the necessity of beginning his action within six months from the date of the rejection of the claim.

It is claimed that such saving clause is found in the following provision of Section 10757:

“The new administrator shall give notice of his appointment in the manner prescribed with respect to an original administrator. If he fails so to do, he shall have no benefit of the limitations herein provided.'”

Mr. Hubbard did not give notice of his appointment as new administrator of Mr. Bartow’s estate, nor was such notice given by the probate judge.

The language of this section is plain and unequivocal, “If he fails so to do, he shall have no benefit of the limitations herein provided.” This does not merely grant to the plaintiff a right, but it is an absolute prohibition to the administrator and takes away his right to plead the limitations “herein provided.” As before stated, such notice was not given; but it is claimed that under the present provisions of the law such notice is not now required. As the law formerly stood (Section 6088, Revised Statutes) the administrator himself was required to publish notice of his appointment.

That section of the Revised Statutes has been amended, and as it now stands in the General Code, as Section 10712, provides that within one month after bond has been given by the executor for the discharge of his trust, “the probate judge shall cause notice of the appointment to be published in some newspaper of general circulation in the county, in which the letters were issued, for three consecutive weeks.”

Section 10757, however, remains unchanged; but it is urged that the requirement of- that section that the “new administrator” give notice of his appointment is of no effect because the original administrator himself is not now required to give notice, the duty to give such notice resting upon the probate judge.

What is the object of requiring notice to be given of the appointment of an executor or administrator? It is not for the benefit of the administrator. Plainly it is for the benefit of the creditors alone, that they may know within what time their claims must be presented. The object of the statute is not to require some particular person to give such notice, but to make sure that such notice shall be given. The fact that when the legislature saw fit to amend Section 10712, it did not amend Section 10757, could not affect the manifest purpose of the statute. The reason for the requirement that notice be given upon the appointment of a new administrator is just as apparent as the reason for giving notice of the appointment of the original administrator. The creditors have a right to presume that after the death or removal, as the case may be, of the original administrator, matters regarding the estate will remain in statu quo until notice is given of the appointment of the new administrator. The language of the statute is clear, plain and unequivocal, and to hold that upon the appointment of a new administrator no notice is required to be given is to ignore its provisions.

The limitations “herein provided,” we think, plainly refer to the limitations upon the bringing of suits provided for in Part Third, Title III, Chapter 3, General Code; and the language of Section 10757 is controlling as to all such limitations.

In Pollock v. Pollock, 2 C. C., 140, it is held that it is error for the court to render judgment on a claim against the estate of a deceased person where the claim had been rejected more than six months before the action is commenced, and the failure of the executor to plead the statute did not give a right to a judgment. This decision only relates to the effect of the six months’ limitation where the fact, which under Section 10757 suspends the operation of Section 10722, does not exist.

In the case of Miller v. Ewing, Admr., 68 Ohio St., 176, ,the only question in the case, so far ks it bears upon this case, is whether an unequivocal statement made by an administrator to a claimant that the claim was rejected and he would get nothing on it unless at the end of a lawsuit was such a rejection of the claim as would set the six months’ limitation to running. The court held that it was, but no question of the suspension of the limitation was raised. Likewise in the case of Harris v. O'Connell, Admr., 85 Ohio St., 136, there is no question raised as to the suspension of the statute by the failure to give notice.

In the case of In re Estate of Mary Ward, 21 C. C., 753, the question is raised as to the right of the administrator himself to take advantage of the failure to give notice of the appointment in the prosecution of " claim in his own favor. The court say at page 762:

“Now, if he fails to give notice — he being the executor himself — if he fails to perform this duty which the statute imposes upon him, we are of the opinion that he cannot take advantage of his own wrong. * * * He cannot take advantage of his own neglect to publish notice.”

In Ardrey et al., Exrs., v. Shell, 77 Ohio St., 218, the holding is to the effect that the proof of publication of the notice of the appointment of the executor or administrator forms no part of the notice to creditors, and is not for the benefit of creditors; and that where the notice is given by publication, as required by law, but the proof of such publication is not filed for more than a year after giving bond, the two years’ limitation provided by Section 6113, Revised Statutes (Section 10746, General Code), will begin to run from the date of the giving of the bond. No other question appears to have been raised in the case and we do not see how it has any application here. Plainly, to us, none of these cases sustain the contention of the defendant in error.

We are unable to find that the question here involved has been passed upon in Ohio. We do, however, find some enlightening decisions from other states. In Whiggins v. Admr. of Lovering, 9 Mo., 262, the first paragraph of the syllabus reads:

“The limitation of three years, does not apply to demands against an estate, unless the executor or administrator give notice of the grant of letters of administration as required by law.”

And in the opinion, at page 266, the court say:

“But although an executor or an administrator cannot waive this bar or destroy its effect, yet he may by his negligence in giving notice of his appointment prevent its accruing, and in such case if either of the other parties suffer a loss, it must be the heirs or devisees, and not the creditors.”

In Emerson v. Thompson, 16 Mass., 429, the court say on page 431:

“If either of the other parties suffers a loss, it must be the heir or devisee, and not the creditor. It is contrary to the plain words of the statute, to bar the creditors, unless the notice is given, as there prescribed.”

In 1 Rockel’s Ohio Probate Practice (2 ed.) it is stated in Section 160 that: “It is the duty of an administrator de bonis non to give notice of his appointment, the same as a general administrator,” and in 2 Woerner’s American Law of Administration (2 ed.), *841, that “The failure of the administrator to publish notice to the creditors of his appointment, as required by statute, is generally fatal to the interposition of this plea [statute of limitations].”

It is held in the syllabus of Hardy v. Ames, 47 Barb., 431, that:

“An executor or administrator can not avail himself of the six months’ statute of limitations, unless he has strictly complied with the statute requiring him to obtain an order of the surrogate for the publication of a notice to creditors to present their claims, and has published the proper notice.” See also Elliot v. Cronk’s Admrs., 13 Wend., 35; Whitmore v. Foose, 1 Denio, 159; Bryan v. Mundy’s Admr., 17 Mo., 557; Gardner v. Estate of Callaghan, 61 Wis., 91; Sewall v. Valentine, 23 Mass. (6 Pick.), 276, and Corliss Steam Engine Co. v. Schumacher, 109 Mass., 417.

We think these authorities clearly show that the purpose of the statute requiring the giving of notice is to advise creditors of the fact that an administrator has been appointed, and that if any negligence exists in the failure to give such notice, the loss occasioned thereby, if any, must fall upon the heirs and not upon the creditors; that the creditors have the right to rely upon the plain provisions of the statutes, and that the failure to give the notice prevents the administrator, or a new administrator, as the case may be, from setting up the bar of the statute of limitations “herein provided.”

It is the fact of the failure to give notice that suspends the bar to the statute.

Judgment reversed.

Pollock and Farr, JJ., concur.