author: MARVIN, J.

text:
    WILLS.
    [Cuyahoga (8th) Circuit Court,
    February 4, 1903.]
    Caldwell, Hale and Marvin, JJ.
    Amelia K. Rewell v. Josie R. Warden et al.
    t. Facts From Which Undue Influence Over Testator Cannot be Inferred.
    Where a testator in disposing of an estate of $32,000, bequeaths $18,500 to his son’s wife, $25 to his adopted daughter, and $13,500 to his widow, the bequest to the widow is not so far in excess of her natural rights as to raise any presumption of undue influence, especially where it is shown that testator feared that the son’s creditors would seize any bequest made to him direct, and that testator had loaned the’ husband of the adopted daughter $4,700, which had never been paid.
    2. Competency of Testator to Draw Wide.
    A person eighty-four years of age who without suggestion from anyone, is able to enumerate all of his property except a single item of small value, and in his instructions to the person drawing his will shows himself acquainted with its nature and disposition, and also that he remembers those who would natturally be the objects of his bounty, and who, up to the time of his last sickness, retains sole charge of considerable business interests and successfully conducts them, is of sufficient mental capacity to make a valid will.
    Error to the court of common pleas.
    Goulder, Holding & Masten, for plaintiff in error.
    E. J. Pinney, W. H. Boyd and Henderson & Quail, for defendants in error.
   MARVIN, J.

The action below was brought by Josie R. Warden, who is a daughter by adoption of Captain Cornelius Rewell, deceased, against Amelia K. Rewell, widow of said deceased; George M. Rewell, a son oi said deceased; Jessie M. Rewell, wife of said George, she being a beneficiary under the will of said deceased, and John Wilson and Homer O. Stafford, executors oí said will.

The only heirs at law of the deceased are the said Josie R. Warden and the said George M. Reweli.

Cornelius Rewell died March 22, 1899, at the age oi eighty-four years. His widow was his third wile. His second wife died June 18, 1895.

On February 16, 1899, he executed a written instrument purporting to be his last will and testament. This was properly witnessed as such will, and in this opinion is hereafter spoken of as a will.

This will was duly admitted to probate in this county and letters testamentary issued thereon to the defendants, Wilson and Stafford, who are named as executors in said will.

By the terms ot said will all of the property of the testator is disposed of.

His estate was worth about $32,000, of which he bequeathed to Mrs. Warden the sum of $25; to his widow, property worth about $13,500; to his daughter-in-law, Jessie M. Rewell, property of about the value of $18,500; this last bequest being his entire estate not disposed of to the other parties to whom bequests were made.

The petition sets out that the writing hereinbefore mentioned was not the will of said Cornelius Re,well; that at the time of its execution said decedent was not of sound mind and memory and did not have testamentary capacity, and that “he was persuaded, influenced, induced, deceived and coerced by the said Amelia K. Rewell and by others acting in her interest, and so was not free from restraint and undue influence.” The prayer of the petition is that said writing may be adjudged not to be the last will and testament of the deceased.

Proper issues being made in the case, it went to trial in the court of common pleas, to a jury, .who returned a verdict that the writing was not the will of the deceased.

Motion for new trial was made by Amelia K. Rewell, which was overruled and exception taken, and the case comes here for review on proceedings in error. A bill of exceptions is presented in this court containing all the evidence introduced,upon the trial, together with the charge oi the court given to the jury and the requests to charge made by the parties in the case.

On the part of the plaintiff in error it is urged that the verdict is not sustained by the evidence.

So far as the claim made by the plaintiff below, that the defendant, Amelia K. Rewell, or any’one in her interest unduly influenced the deceased is concerned, we find nothing to sustain it. The evidence is that Mrs. Rewell, who was the third wife of the deceased and who was married tc him on May 24, 1896, treated him with great kindness, anticipated his wants and aided him more or less in his affairs. To hold that such conduct on the part oi this wife was to unduly influence him in her behalf would be to ignore what we regard as the highest duty of a wile to her husband. When she married Captain Rewell she undertook and agreed to treat him with affection and kindness, to aid him, so far as she could, in whatever was to his interest, and surely the faithful carrying out of this obligation ought not to be charged up against her as being an effort on her part to unduly influence him in her favor. She wanted his affection or she would not have married him; she was entitled to his-affection, or he should not have married her; he needed her kindly offices and was entitled to receive them, and nothing in the evidence tends to show that her conduct toward him was other than in the highest degree commendable. Nor is there any evidence tending to show that any one in her behalf tried to influence him unduly in her favor. She seems to have been affectionate and kind to him and he to have appreciated and reciprocated that kindness and affection. In this the conduct of each was commendable. We find nothing in the will itself, when taken in connection with the undisputed évidence, to indicate that he was unduly influenced by anybody, or that the will, was one which, in the nature of things, should excite a suspicion of undue influence or of want of mental capacity.

Mrs. Warden, though she would have been an heir at law had he died intestate, was so only because she had been legally adopted by him as a daughter. The evidence clearly shows that he loved this daughter. He often spoke of her in the same affectionate manner which might be expected of a father speaking of his daughter. But there had been trouble between her husband and Captain R'ewell, growing out of a loan which had been made to Mr. Warden. This, loan amounted to about $4,700. Warden had not paid it, his claim being that it was money of Mrs. Rewell, the second wife of Captain Rewell and the adopting mother of Mrs. Warden. Captain Rewell claimed that the money was due to him. Without reference to which of the parties was right in the claim made as to this money, it may well explain why Captain Rewell should have a feeling against Mr. Warden and against giving any part of his property in such wise that it could benefit Warden. Whether Warden had really wronged him or not, Rewell believed that he had, and so believing,it is not extraordinary that a man of sound mind should have felt that no more of his property should go into the family of Mr. Warden.

As to his son George, it seems clear from statements made by Captain Rewell himself and from the evidence in the case that he felt that George and.his iamily would be much more benefited by having a bequest made to his wife than by having it made to him. George had not been fortunate in business, and it was evidently the fear of Captain. Rewell that property bequeathed to him might be seized by his creditors, and so his family be entirely deprived of the benefit of it, whereas, it it were given to Mrs. Jessie M. Rewell, George and his family would thereby be provided for.

The amount bequeathed to the widow of the deceased, as compared with his entire estate, is not so great as to raise a probability that he was unduly influenced, or that he was of unsound mind.

Coming now to the testimony of the witnesses as to the mental capacity of Captain Rewell:

We find, first, Captain George Stone, an old and intimate friend of the deceased. He noticed in the last years of Captain Rewell’s life that his memory was not as good as it had been earlier. He mentions the case of Rewell asking him in reference to a sister of the witness. Witness told him that she was alive. Rewell said it seemed to him that he had heard she was dead, and then this language is used by the witness: “And' then perhaps he would ask the same question right over again, in a little while the same.” It will be noticed that he does not specifically give an occasion when this occurred, as though he were following up one conversation, but as though he had noticed a general tendency on the part of Captain Rewell to forget what had been said to him on some subject and asked about the same subject again. He gives another instance of his asking several times where a Mrs. Simpson was, he having answered the first time the question was asked him that she was at Vermillion. He says that during one conversation he made inquiry about this woman at least three times.

Edward Keron, who lived in a house belonging to Captain Rewell and who saw him very often, says that he was somewhat forgetful; that he would ask the same question three or lour times within a short space of time. He mentions especially the fact that Captain Rewell gave him the details of a story of a trip he made on the lakes once in going to Buffalo, when they had a great storm. Witness says Rewell told him this twelve or fifteen times during the last year of his life.

If every man who repeats a good many times over to the same per. sons some extraordinary event of his life were to be held of unsound mind, it would include a very large percentage of those who have passed the age of sixty years, in short, there was evidence in this only of the fact that, like other old men, he was given to reminiscence and would be very likely to repeat the story of some remarkable incident in his life. Captain Rewell asked this man for rent at one time when the rent had been paid the day before. The captain seemed to have forgotten it. Witness says he was forgetful about making repairs on the house which he rented of him.

Witness Byers, who is a notary public and who deals somewhat in real estate and who sells coal, was well acquainted with Mr. Rewell, who frequently called at the office ol the witness and frequently asked of the witness if he were doing well in his business, and bow much he got for selling coal. He also asked whether he owned the property where he lived, even though he had answered him a good many times that he did own it. At one time Captain Rewell bought a load of coal of the witness and paid lor it, and next day he went into witness’s office and said, “I believe I owe you for a load of coal, don’t I,” seeming (to have overlooked the fact that he paid for the coal the day he bought it.

J. H. Reed was a tenant of Captain Rewell. On two occasions he paid the rent to Rewell and Rewell again asked him for payment. In each of these instances a receipt was given by Rewell to the witness when the mone5r was paid. The facts as to one of these instances seems to be that Rewell went into the place of business of the witness, the rent was paid to him and he signed a receipt, put the money in his pocket, and when he went home, being unable to find the money about his per* son, came back, thinking that it must be that, as he had remained and talked with the witness some time, he had given the -receipt without actually receiving the money. When he went back, however, on being assured that he had been paid, he made further investigation and found the money in his pocket. This would perhaps indicate that he was not as careful as he would have been once, but surely it is not a very remarkable thing and is lar from showing that one is without testamentary capacity. On the other occasion, several days intervened between the time of the payment and the call made by Rewell for the rent, which would indicate, certainly, that the memory of Captain Rewell was not first-rate, yet it can hardly be said that one who forgets that money has been paid to him is necessarily of unsound mind. This witness says that within the last year ot Captain Rewell’s life he told him of his property, telling- him of his real estate, his notes and his stocks. This witness borrowed money ol him and transacted business with him up to nearly the time of his last sickness.

Olive A. Allen tells of his having for a long time occupied a pew well to the front in the church which both he and she attended. After his marriage to his third wife he took a pew further back in the church which, she says, was in deference to the wishes of his wife. We see nothing in this to indicate either undue influence or unsoundness of mind. She tells of his being iorgetlul at the time of the last sickness of his second wile; that, after being told that she must be kept quiet,•he would seem to forget it to the extent that he would go and speak 'to his wife when she ought to have been let alone and when he had been told she ought to be let alone.

Dr. H. C. Byman, at present superintendent of the state hospital lor the insane at Massillon, and lormerly holding the same position in the hospital at Cleveland, an expert in menial diseases, was called in consultation with Dr. Bortz, the regular attending physician of Captain Rewell, a few days before his death. He found him then suffering from an acute outbreak of senile dementia. Dr. Bortz himself .testifies that in this last sickness he was suffering under delusions and was very considerably out ot his mind, and of this there can be no doubt.

Mrs. Jane Sinclair, of Clinton, Michigan, a sister of Captain Rewell, and Mrs. Mary Blanchard, a daughter of Mrs. Sinclair, each testified as to a visit made by him, in Michigan, during his widowerhood after the death of his second wife, in which he seemed very sad and depressed, and ol a visit made to them shortly after his marriage to her who is now his widow, and it is clear that at the time of this last visit he manifested great pride in his new wife and asked them frequently if they didn’t think he had just the right woman for a wife and if they thought by any possibility he could have done better, and the like.

The testimony of these and of all the witnesses shows that during the last years of his life Captain Rewell’s mental faculties were impaired; that his memory was not as strong as it had been; that he was suffering, to some degree at least, from what the medical men call senile dementia, a term which sounds more fearful than it really seems to be when we get the explanation of the physicians as to what is included in the term, because they say thetferm includes all those symptoms ot mental impairment which are incident to old age. Indeed, from what is said about it, it would seem that very few men who have passed the age of sixty years but what, in greater or less degree, are afflicted with senile dementia.

When the testimony of all the witnesses who testified that, in their judgment, Captain Rewell, at the time this instrument was executed was without testamentary capacity is weighed with that of the other witnesses, we think it clear that the jury reached a wrong conclusion in their verdict in this case.

The man who wrote the will, H. D. Messick, was a complete stranger to Captain Rewell. Rewell called upon him at the bank and asked him to draw his will. He was accompanied by his wife. Without any suggestion from anybody made at the time, he enumerated his property, omitting nothing except certain mining stock of very little value, which, upon his wife mentioning it, he disposed of in his will. That he then remembered in what his property consisted, practically all of it, seems clear from the testimony of this witness, and that he remembered, those who would naturally be the objects of his bounty is clear from the will itself. He did not forget Mrs. Warden, for he made a bequest to her; he did not forget his son George, for he made a large bequest to his wife; he did not forget his wife, f¿r he made so large-a bequest to her that for that reason it is sought to set aside this will.

' Mr. Keith, who was a witness to the will (Mr. Messick being the other witness), saw nothing about Captain Rewell to indicate want of mental capacity and memory. Witnesses who knew him during the years of his business life and up to the end of his life testified as to his mental faculties in such wise as to clearly indicate testamentary capacity. The tact is that up to the close of his life, or, in any event, up to the time of his last sickness, he took charge of his own business interests, which were considerable. It seems clear that he did not forget that he owned the several pieces of real estate which he did own, nor forget when the rent became due from the tenants occupying such real estate, nor did he forget the bills which he owed. It is true that in one or two instances he forgot that such bills had been paid, but he remembers that such bills had been contracted.

We are under the impression that the jury were influenced in coming to their verdict by a feeling that Captain Rewell had not done the fair thing by Mrs. Warden. We do not undertake to say that Mrs. Warden had rightly forfeited, by anything which she or her husband had done, the affection of her father. So far as appears, she seems to have been to him' what a daughter should have been, but it was not unnatural that Captain Rewell, though of perfectly sound mind, should have seen fit to cut her off with the little pittance which he did because of what he believed to be the bad treatment which he had received from her husband.

If Captain Rewell had testamentary capacity, it was his right to do what he would with his own. It is a mistaken notion that children have a right to dictate what the parent shall do with his own property, and surely, it is no part of the duty of a jury to determine that property shall not go as a testator desires that it should, simply because they think it would have been more equitable and just to have made a different disposition of the property.

The courts of the different states and of the United States have had occasion again and again to discuss this question of testamentary capacity-

In support of what has been said about undue influence, attention is called to the case of Mears v. Mears, 15 Ohio St. 90, where it is held that the fact that one who is benefited by the will, was so situated that he might have exercised great influence over the mind of the testator, raises no presumption that undue influence was exercised.

In Monroe v. Barclay, 17 Ohio St. 302 [93 Am. Dec. 620], it is said that undue influence or lraud, to invalidate a will, must appear to have had some effect on the very act of making the will, by imposing a restraint upon the independent wishes and judgment as to disposition of property.

In the case of Wise v. Foote, 81 Ky. 10, the filth clause ol the syllabus reads:

“Influence obtained by proper persuasion and argument, or by mere appeals to the affection is not undue influence in a legal sense. ’ ’

On the question of testamentary capacity, it is well settled that less mental strength is required for the execution of a valid will than is required for the making of contracts with parties whose interests are adverse to him whose mental capacity is being investigated.

In the case of Wilson v. Mitchell, 101 Pa. St. 495, there is an opinion by Mr. Justice Trunkey, who announces the law as we understand it to be. On page 502 and following of the opinion in that case, this language is used:

“A man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposition he desires to make of it, and of the persons and objects he desires shall be the recipients of his bounty. It is not necessary that he collect all these in one review. If he understands in detail all that he is about and chooses with understanding and reason between one disposition and another, it is sufficient for the making of a will. * * * If from any cause he is so enfeebled in mind as to be incapable of knowing the property he possesses; of appreciating the effect of any disposition made by him of it; and of understanding to whom he intends to bequeath it, he is without the requisite testamentary capacity. * * * ‘He must have memory. A man in whom this faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease. He may not be able at all times to recollect the names, the persons or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had belore been asked and answered; and yet.his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory, and vigor of intellect, to make, and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of; and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing; * * * The question is not so much what was the degree of memory possessed by the testator as this — Had he a disposing memory ? Was he capable of recollecting the property he was about to bequeath ; the manner oí distributing it and the objects of his bounty? To sum up the whole in the most simple and intelligent form — Were his mind and memory sufficiently sound to enable him to know, and to understand, the' business in which he was engaged at the time when he executed the will ?’ * * * Neither age, nor sickness, nor extreme distress or debility of body will affect the capacity to make a will, if sufficient intelligence remains. The failure oí memory is not sufficient to create the incapacity, unless it be total, or extend to his immediate family ot property. The want of recollection of names is one of the earliest symptoms of the decay of the memory; but this failure may exist to a very great degree, and yet ‘the solid power oi the understanding* remain.”

On page 504, in the same case, this language is used, speaking oí the testator:

‘‘The general character may be learned from one of the most intelligent (of the witnesses) — Mr. Dunlap; he knew Dougal (the testator) in 1815, studied surveying with him in 1835, was an intimate lriend, was very frequently with him in the line ol their business, and when Dougal ceased surveying he turned his business over to the witness. He testifies that Dougal was a strong-minded man, wrote rapidly and well, and was very tenacious of his opinions; a tender and feeling man, always glad to meet his old acquaintances ot childhood; that in the last years of his life his mind was not so vigorous; that in 1880 his memory appeared to be right on transactions in the prime oí his life, on these he conversed as well as ever; did not talk about recent transactions, but he asked about witness’ wife; asked the same question over several times, as if he had forgotten he had asked it before; saw nothing like insanity about him, and never heard an irrational or insane expression by him, and observed no hallucination or delusion, and the witness thinks that under solicitation and well-wishers, Dougal would have readily changed his mind, and doubts if he had capacity to make a will. Surely this testimony does not show want of testamentary capacity.”

In this case the testator was over one hundred years old at the time the will was made; he was blind and partly deaf; his mind was treacherous as to recent events; he would repeat the same things several times, and slept almost constantly.' In his prime his mental and physical vigor had been remarkable and he had been observant oí the proprieties ol lile, while in old age his vigor abated and he became extremely filthy in his habits. It was held that there was not evidence to show want ol testamentary capacity.

A large number of authorities, cited and quoted from in the brief oi the plaintiff in error, are to the same effect as those hereinbefore quoted. Crolius v. Stark, 64 Barb. 112; Yoe v. McCord, 74 Ill. 33; Montague v. Allan, 78 Va. 592 [49 Am. Rep. 384].

The questions raised upon the admission and rejection of evidence are numerous and have been carefully examined.

We are not prepared to say that there was not error in the ruling of the court upon some of the questions of evidence, and, if the case is retried, we suggest that the better way to ask as to the opinion of non-experts in reference to the mental condition of the testator would be to base the opinion upon the facts testified to by the non-expert witnesses.

The hypothetical question put to the physicians is very long and complicated, and, we think, can be greatly improved upon when the case is again tried. We are not prepared, however, to say that the plaintiff in error was prejudiced by the ruling upon this question of evidence.

The charge of the court, on the whole, seems to us a fair statement ol the propositions of law discussed, but, under the evidence, we think there was no occasion to say anything to the jury on the question of what constitutes undue influence, for, as has already been said, we find no evidence tending to show that any influence which in any proper sense can be said to have been undue was exercised by anybody upon the testator, and hence, what was said in that regard should have been omitted.

It is possible that we should not feel justified in reversing the case on account of what was-said in the charge upon that subject, because it is the law as we understand it to be, but it should have been omitted for the reasons already given.

The judgment of the court below is reversed! for error in overruling the motion lor a new trial and because the verdict is not sustained by the evidence.


source: Caselaw Access Project

author: SUMMERS, J.

license: Public Domain

text:
    APPEAL.
    [Franklin (2nd) Circuit Court,
    January Term, 1903.]
    Wilson, Sullivan and Summers, JJ.

       Hays v. Olentangy Park Company.
    Appeal is Continuation oe Suit Below and Governed by Law in Force When Action was Begun Below.
    An appeal from the common pleas to the circuit court is a continuation of the suit, and not a new proceeding, as is a proceeding in error, and the manner of taking an appeal is controlled by the statute in force when the suit is commenced, unless the act amending or repealing such statute is expressly made applicable. The suit is a pending action within the meaning of the provision of Sec. 79 Rev. Stat. that “ When the repeal or amendment relates to the remedy, it shall not effect ['affect] pending actions, prosecutions or proceedings, unless so expressed.”
    On Motion to Dismiss Appeal.
    G. H. Stewart, for plaintiff.
    T. J. Keating and Dusenbury & Dusenbury, for the defendant.

       Opinion of common pleas on merits, see S. C., 13 Dec. 67,

   SUMMERS, J.

This action was pending in the court of common pleas on March 25, 1902, when Sec. 5227 Rev. Stat., 95 O. L. 66, was amended to read:

“Section 5227. A party desiring to appeal his cause to the circuit court shall, within three days alter the judgment or order is entered on his docket by the trial judge, file a written notice (1) of such intention, and, within thirty days after the entering of such judgment or order by the trial judge, (2) give an undertaking, with sufficient surety, to be approved by the clerk (3) of the court or a judge thereof, as hereinafter provided.”

Subsequently on August 2, 1902, a decree against the defendant was entered, and on August 5, 1902, written notice of appeal signed by the attorneys, but not by the defendant, was filed. This notice has not been entered upon the journal, but the fact and date of filing were noted upon the appearance docket.

The plaintiff moves to dismiss the appeal on the ground that notice of intention to appeal was not entered on the journal within three days, the contention of his attorney being that the section as it read prior to the amendment controlled, and that if the amended section controlled then the notices are not good, because not signed by the party appealing, but by his attorney.

Counsel for the defendant contends that the notice is good under either the unamended or amended section.

The question to be determined is whether the defendant has prolonged the life of this action by a compliance with the provisions of the statute upon which it is conditioned.

Section 79 Rev. Stat. reads as follows:

“Whenever a statute is repealed cr amended, such repeal or amendment shall in no manner effect \affect\ pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not effect [affect] pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment effect \affeci\ causes of such action, prosecutions, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

Repeals and amendments, because of their eflect on existing rights and remedies, invited abuse akin to that arising from retrospective legislation. In Travelers Ins. Co. v. Myers, 59 Ohio St. 332, 333 [52 N. E. Rep. 831], Minshall, J., says;

“This section of the statutes was adopted for the reason, that, though the legislature is denied by the constitution the power to pass retroactive laws, it has been held, that this did not include laws relating to the remedy; and so to prevent abuses, of which there were many and somewhat discreditable instances, it was provided that where laws relating to the remedy were adopted they should not affect pending actions, prosecutions, or proceedings, * * * unless otherwise expressly made so, in the amending or repealing act.”

It is apparent from the original section and its several amendments that the legislature intended thereby to make all amendments and repeals of statutes prospective in their operation upon rights and wrongs and the remedies for their enforcement and redress unless otherwise expressly provided in the amending or repealing act.

The first act was passed in 1856 (53 O. L. 153; 1 S. & C. 60), and provided:

“That whenever a statute is repealed, such repeal shall in no manner affect pending actions founded thereon, nor causes of action not in suit that occurred prior to any such repeal, except as may be provided in such repealing statute.”

This was amended in 1866 [63 O. L. 22] to read:

“That whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal; nor causes of such action, prosecutions or proceedings, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act. ”

This was again amended in 1880 and carried into the revision of the statutes as Sec. 79 Rev. Stat. above quoted.

The course of legislation was as follows: First it was provided that repeals should not act retrospectively, then that repeals and amendments should not so act in either civil or criminal matters, and finally in 1880, the courts having held (Westerman v. Westerman, 25 Ohio St. 500; Rouse v. Chappell, 26 Ohio St. 306; Warner v. Railway Co., 31 Ohio St. 265) that a change in the statute, aflecting merely the remedy, did not affect the pending action, prosecution, or proceeding, within the meaning of the statute, and that an amended statute, of that character applied as well to cases pending and causes of action existing at the date of its taking effect as to future cases and causes of action, it was provided: “When the repeal or amendment relates to the remedy it shall not affect pending actions, prosecutions or proceedings unless so expressed. ”

This section, so amended, was interpreted by the Supreme Court in the same year, the court saying in Cincinnati, S. & C. Ry. Co. v. Belt, 35 Ohio St. 479, 481:

“In every case the inquiry is as to the intention of the law-making power; and that' the legislature intended the rule prescribed in Sec. 79 Rev. Stat. should be applied to the statutes mentioned in and repealed by Sec. 7437 of the revision, and hence that the intention was to save matters of every sort pending when the Revised Statutes took effect, we entertain no doubt.”

The same interpretation is applicable now, for the section is not limited to the statutes mentioned in and repealed by Sec. 7437 Rev. Stat., but is of continuing operation.

However, the intention of the legislature seems to have been in a measure deleated by the language used to give it expression. Instead of using general terms, particular terms were used, and in Westerman v. Westerman, supra, p. 507, Welch, J., says:

“By the word ‘proceeding’ in the last named act, is meant, not the steps taken or form of proceeding in an action, but a certain description of suit which is not properly denominated an action.”

In Lafferty v. Shinn, 38 Ohio St. 46, Okey, C. J., says, that the remedy by error is a proceeding, and that the right to file a petition to reverse a judgment is a cause of proceeding, and it is there ruled that an amendment reducing the period within which a proceeding in error may be commenced irom three to two years does not apply to judgments rendered prior to the time the amendment took effect, because Sec. 79 saved a cause of proceeding.

And in Travelers Ins. Co. v. Myers, supra, it is ruled that the amendment of Sec. 6710 Rev. Stat. limiting the jurisdiction on error of the Supreme Court tocases in. which the judgment was not less than §800, did not apply to pending proceedings in error, nor to existing causes ol such proceeding, although expressly made applicable to all causes of action existing and to actions pending in all courts inferior to the Supreme Court, because by the terms of Sec. 79 Rev. Stat. pending proceedings and existing causes of proceedings were saved.

True, the court ruled that a right to prosecute error to the Supreme Court to a judgment rendered in the circuit court subsequently to the adoption of the amendment was not atlected by the amendment, presumably on the ground that the proceeding in error in the circuit court was a pending proceeding, and overlooking the fact that the proceeding in error subsequently commenced in the Supreme Court was not the same proceeding that was pending in the circuit court, lor it overruled Curry v. Homer, 40 Bull. 303 [suppressed by Supreme Court and not included in Supreme Court Reports — Ed.], and vacated the order oi dismissal. In that case a judgment had been rendered ior less than ?300, and a proceeding in error was pending in the circuit court at the time the amendment was adopted; a judgment of affirmance was subsequently rendered by the circuit court and a proceeding in error commenced in the Supreme Court, where a motion to dismiss was sustained on the ground that the amendment applied to actions pending in the circuit court.

It is apparent from the course of decisions in the Supreme Court that the dismissal was correct, though for a wrong reason. The proceeding in error, subsequently commenced in the Supreme Court was not a pending proceeding, but a proceeding commenced after the amendment went into eflect and based upon a cause of proceeding, to-wit, the judgment of the circuit court, arising after the amendment took effect, and, consequently, subject to it, because Sec. 79 Rev. Stat. does not save future proceedings or causes oi proceeding, and the amendment applied to such proceedings and causes of proceeding without any provision expressly declaring it applicable.

This is more clearly demonstrated in the opinion by Smith, J., in McAlpin v. Clark, 2 Dec. 160 (1 N. P. 195).

The act amending Sec. 5227 Rev. Stat. does not provide that it shall apply to pending actions, and the question now arises whether the steps necessary to an appeal are proceedings in a pending action and within the saving clause of Sec. 79 Rev. Stat., or is the pending action terminated by decree, and must the appeal be efiected in accordance with the law in force when the decree is entered.

The code has abolished actions at law and suits in equity and substituted a civil action, but it has not, as has been done in many states, provided a common iorm of appellate proceeding, but has, in a measure, preserved the distinction that formerly existed between them so that errors of law are brought up by petition in error, while an appeal, generally speaking, brings up the whole case for a trial in the higher court upon the facts as well as the law. In Macklin v. Allenberg, 13 S. W. Rep. 350 [100 Mo. 337], Black, J., says, that in that state the distinction between appeals and writs of error is still preserved, and that an appeal is a continuation of the suit, while a writ of error is a new action. The same reasons apply here. An appeal must be effected at once, notice be given within three days, while at one time error might have been prosecuted within three years. The time is now four months, and summons in error must be served or appearance be entered.

The distinction seems to be conceded in Taylor v. Boyd, 3 Ohio 337, 354 [17 Am. Dec. 603], and in Ludlow v. Kidd, 3 Ohio 541, 547, Sherman, J., says:

“Appeals, in chancery proceedings, from an inferior to a superior tribunal, have been long established in our system of jurisprudence, and one ol familiar and daily occurrence in our practice, and it has never been supposed that the appeal was anything other than a proceeding in the original cause. * * * The appeal has the effect of continuing the cause and suspending or vacating the decree oí the interior tribunal until the cause is heard in the appellate court.’’

The ruling in Thompson v. Building Assn., 7 Circ. Dec. 68 (13 R. 250), lollowed in Blymyer v. Meader, 9 Circ. Dec. 173 (18 R. 892), and in Heberger v. Sabbert, 48 Bull. 12, are to the same effect. And in Bode v. Welch, 29 Ohio St. 19, 22, decided in 1875, before the amendment of 1880, Welsh, C. J., says:

“Whether such right oí appeal is to be regarded as a subsisting ‘cause’ of action or proceeding, or whether the case in which it exists is to be regarded as a pending ‘action’ or ‘proceeding’ within the purview of the act of 1856, matters not. In whichever character it is to be regarded, we think it comes fairly within the saving clauses of the act.’’

It follows that Sec. 5227 Rev. Stat., as it read prior to the amendment, applies, and the remaining question is whether the defendant has complied with its provision.

That section, previous to amendment, provided that the party desiring to appeal should within three days alter the judgment or order was entered enter on the record notice of such intent.

The written notice that was filed was styled and endorsed simply notice. Had it been styled and endorsed entry ot notice of appeal, there would be apparently little room to question that it was a proper notice of appeal to be entered on the journal, or that it would be the duty of the clerk to enter it. The clerk did not so enter it, but merely noted on the appearance docket: “1902. Aug. 5, Defts. notice of appeal to circuit court filed.”

Conceding that the right ot appeal is wholly statutory, and that compliance with the provision of the statute is jurisdictional, and that in this respect the statute is to be strictly construed (Browne v. Wallace, 66 Ohio St. 57 [63 N. E. Rep. 588]), still we areot the opinion that the written notice that was filed was an entry of notice of an appeal and that it was the duty of the clerk to enter it upon the journal. This being so, we think it must be, so far as the right of appeal is involved, considered as entered. In Miller v. Albright, 5 Circ. Dec. 585 (12 R. 533), it is held that notice of appeal is, in law, for all purposes of appeal, entered upon the record at the time it is given to the clerk to be entered.

This has been the practice. Moreover, the statute requires only that the notice be entered within three days after the judgment or order is entered. We know that many orders are not entered until long alter the day they are filed. And yet they are entered on the journal as of the day they are filed, and in practice they are treated as entered on the day they are filed, and the time within which the notice of appeal must be given is computed from that day, and it it were otherwise and the entry must be not only filed, but actually entered, then there would be no ceitainty, but many contentions as to when the clerk actually entered the order and notice, and the appeal might be lost by the failure of the clerk to perform his duty.

The motion is overruled.


author: HULL, J.

text:
    CONSTITUTIONAL LAW — FELLOW SERVANTS.
    [Lucas (6th) Circuit Court,
    February 23, 1903.]
    Haynes, Parker and Hull, JJ.
    Ignatius Froelich v. Toledo & Ohio Central Railway Co.
    1. Section 3365-22 Rev. Stat., the Railway Fellow Servant Law, Constitutional.
    Section 3365-22 Rev. Stat., which provides that any employe of a railway company having power to direct or control another is not the fellow-servant of an employe having no such power, where they are in different branches or departments, is not in conflict with the Ohio constitution, as granting special privileges or not having a uniform operation throughout the state, or with the United States constitution as denying to any person the equal protection of the laws.
    2. Statute Operating Reasonably and Uniformly Upon all Railroads of the State, Constitutional.
    A statute which applies to railway companies and not to other corporations is constitutional and has a uniform operation throughout the state where such statute has a uniform operation upon all the railways within the state and reasonable grounds exist for making such a provision with respect to railway companies which do not exist as to other corporations.
    3. Same — Reasonable Application to Particular Class oe Employes.
    A statute which applies only to a particular class of railway employes is not. in violation of Sec. 2, Art. I of the Ohio constitution, or Sec. I of the fourteenth amendment to the United States constitution, where the classification of employes for which it provides, although somewhat arbitrary, is reasonable and made with a reasonable and proper purpose.
    4. Engineer and Hooker oe Coaling Machine are in Same Department.
    The engineer of a “coal tipple” who controls the machinery which dumps cars loaded with coal into buckets standing upon cars beside such machine, and also moves such cars upon their track, is in the same “ department” with a “hooker,” whose duty it is to hook and unhook the hoisting tackle by means of which such buckets are raised from the cars and dumped into boats, within the meaning of Sec. 3365-22 Rev. Stat., and such engineer having no authority or control over such “ hpoker ” they are fellow-servants.
    Heard on Error.
    D. L. Beale and Charles A. Thatcher, for plaintiff in error.
    Doyle & Lewis and J. W. Shauffelberger, for defendant in error.
   HULL, J.

The plaintiff in error was the plaintiff below, and brought his action to recover damages against the Toledo & Ohio Central Railway Company for injuries which he claims he sustained on account of the negligence of the railway company through an employe superior to the plaintiff» Froelich, claiming that he was an employe without any power to control or direct any other employe; that the employe through whose negligence he was injured, to-wit, an engineer, was in control of and had charge over another employe and was in another branch or department of the service from Froelich, and that, therefore, the railway company was liable under the last clause of Sec. 3365-22 Rev. Stat. (87 O. L. 149), which statute reads as follows :

“ That in all actions against the railroad company for personal injury to, or death resulting from personal injury, of any person, while in the employ of such company, arising from the negligence of such company or any of its officers or employes, it shall be held in addition to the liaability now existing by law, that every person in the employ of such company, actually having power or authority to direct or control any other employe of such company, is not the fellow-servant, but superior of such other employe, also that every person in the employ of such company having charge or control of employes in any separate branch or department, shall be held to be the superior and not fellow-servant of employes in any other branch or department who have no power to direct or control in the branch or department in which they are employed.’.

The plaintiff claims to be within the last clause: “Also that every person in the employ of such company having charge or control of employes in any separate branch or department,” etc.

The plaintiff and the engineer, with other men, were engaged in operating a “Brown hoisting” apparatus, in unloading coal from cars into a vessel. After the testimony of both plaintiff and defendant had been heard at the trial in the court below,* the court, upon motion of defendant, instructed the jury to return a verdict in favor of the defeudant, upon the sole ground, as- shown by the opinion of the court (13 Dec. 110), that the clause of this section under which the plaintiff claimed .is unconstitutional — in violation of the constitution of the United States and of the state of Ohio, the court holding that, but for this, the plaintiff would have been entitled to have his case go to the jury, holding that there was evidence tending to show negligence on the part of the defendant, and that whether the plaintiff was guilty of contributory negligence was a disputed question of fact, and holding that Froelich was in a separate branch or department of service from the engineer, on account of whose negligence he claimed to have been injured. The constitutional questions were argued at length and ably in this court, and the first question for consideration is, whether this clause of the statute is in conflict with any of the provisions of the constitution of this state or of the United States.

It is claimed by defendant in error that it is in conflict with Sec. 1 of the fourteenth amendment of the constitution of the United States and in conflict with Sec. 2, Art. 1, of the constitution of Ohio, being a portion of the bill of rights, and with Sec. 26, Art. 2, of the constitution of this state. The claim, in substance, is that this is class legislation— special legislation, made applicable without sufficient reason, to a particular class — to railroad companies alone — and to a particular class of railroad employes.

The last clause of Sec. 1, of the fourteenth amendment to the constitution of the United States, is as follows:

“Nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdicion the equal protection of the laws.”

Section 2, Art. 1, of the state constitution provides: “All political power is inherent in the people. Government is instituted for their equal protection ánd benefit,” etc. And Sec. 26, Art. 2, provides: “All laws, of a general nature, shall have a uniform operation throughout the state,” etc. These provisions and the claims under them made by counsel, may be considered somewhat together.

It is claimed that this whole statute, applying as it does to railroad companies alone, is in conflict with the provisions of Sec. 26, Art. 2, of the state constitution, which provides that: “All laws of a general nature, shall have a uniform operation throughout the state; ” that inasmuch as this statute operates upon railroad companies, and upon railroad companies only, it violates this provision of the constitution.

The statute, however, operates upon all of the railroads of the state, operating uniformly on all corporations of that kind, and if there are reasonable grounds for making a provision of this kind with respect to railroad companies that does not exist with respect to other companies or corporations, then, as we understand the law, this statute would not be- in conflict with this provision of the constitution, although it applies to railroads alone, and would be held to have, in the language of the constitution, “ a uniform operation.” It is not necessary to say, it goes without saying, that- there are many things in the operation of a railroad that are not found in the operation of other companies or corporations, or in the operations of private individuals engaged in other business. A railroad company operates its property, not only for its own profit, but for the benefit and advantage of the public — for all who desire to travel over its roads. By their charters railroads are given certain advantages and privileges that are not given to other corporations in the state. They have the power, among others of eminent domain — the power to appropriate property for their uses and purposes. The public is interested in the proper and safe conduct of their affairs; interested in the care, diligence and prudence with which their men perform their duties, as the public is interested in being carried safely and in having their goods and wares carried safely over the railroads, and it has been expressly held by a United States court that this statute as a whole is not inimical to this provision of the constitution of the state. In Peirce v. Van Dusen, 9 O. F. D. 419 [78 Fed.Rep. 693; 24 C. C. A. 280; 47 U. S. App. 339], this statute came before the circuit court of appeals of the United States. The opinion was delivered by Justice Harlan. The third paragraph of the syllabus reads as follows:

“The act of April 2, 1890 (87 O. L. 149), providing for the protection and relief of railroad employes, etc., is not repugnant to the provisions of the constitution of Ohio declaring that ‘ all laws of a general nature shall have uniform operation throughout the state, but applies to all railroad corporations operating railroads within the state, and is within the meaning of the state constitution, general in its nature, and as it applies to all of a given class of railroad employes, it operates uniformly throughout the state, and is therefore constitutional and valid.”

Justice Harlan says, in delivering the opinion of the court, on page 432, after discussing the question very fully:

“ We do not deem it necessary to pursue this subject further. We think it clear that the Ohio statute is not obnoxious to the constitutional provision requiring all laws of a general nature to have a uniform operation throughout the state. As it applies to all railroad corporations operating railroads within the state, it is, within the meaning of the state constitution, general in its nature; and, as it applies to all of a given class of railroad employes, it operates uniformly throughout the state.”

The facts in this case, however, were such that the case came within the provision of the first part of the statute, and the constitutionality of the last clause was not involved.

There is no decision of the Supreme Court of this state in conflict with the doctrine here announced — in fact the question as to constitutionality of this statute has never been raised in the Supreme Court of Ohio.

In Missouri Pac. Ry. Co. v. Mackey, 127 U. S. 205 [8 S. Ct. Rep.1161], a Kansas statute came before the court. This Kansas statute practically abrogated the doctrine of fellow-servants so far as it applies to railroad companies. The Supreme Court of the United States held, as laid down in the syllabus:

“ The statute of Kansas of 1874, Chap. 93, Sec. 1, p. 143, Comp. Laws Kansas, 1881, p. 784, which provides that ‘ Every railroad company organized or doing business in this state shall be liable for all damages done to any employe of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employes, to any person sustaining such damage,’ does not deprive a railroad company of its property without due process of law ; and does not deny to it the equal protection of the laws; and is not in conflict with the fourteenth amendment to the constitution of the United States in either of these respects.”

The opinion of the court was delivered by Mr. Justice Field, and on page 209, the court say:

“ The objection that the law of 1874 deprives the railroad companies of the equal protection of the laws is even less tenable than the one considered. It seems to rest upon the theory that legislation which is special in its character is necessarily within the constitutional inhibition ; but nothing can be further from the fact. The greater part of all legislation is special, either in the objects sought to be attained by it, or in the extent of its application. Laws for the improvement of municipalities, the opening and widening of particular streets, the introduction of water and gas, and other arrangements for the safety and convenience of their inhabitants, and laws for the irrigation and drainage of particular lands, for the construction of levees and the bridging of navigable rivers, are instances of this kind. Such legislation does not infringe upon the clause of the fourteenth amendment requiring equal protection of the laws, because it is special in its character; if in conflict at all. with that clause, it must be on other grounds. And when legislation applies to particular bodies or associations, imposing upon them additional liabilities, it is not open to the objection that it denies to them the equal protection of the laws, if all persons brought under its influence are treated alike under the same conditions. A law giving to mechanics a lien on buildings constructed or repaired by them, for the amount of their work, and a law requiring railroad corporations to erect and maintain fences along their roads, separating them from land of adjoining proprietors so as to keep cattle off their tracks, are instances of this kind. Such legislation is not obnoxious to the last clause of the fourteenth amendment if all persons subject to it are treated alike under similar circumstances and conditions in respect both of the privileges conferred and the liabilities imposed.”

It is contended, however, that the last clause of this statute is in violation of Sec. 1 of the fourteenth amendment of the constitution of the United States, and of Sec. 2, Art. 1, of the constitution of this state, which I have read, for the reason that it applies only to a portion of the employes of a railroad company; that it does not give to all of them the same right to begin an action for negligence that it does to those that are mentioned in this section. It is said that while the legislature may have the right to abrogate entirely the fellow-servant rule so far as it applies to railroad companies, that, if it does this it must abrogate it entirely; it must confer the right to begin an action for negligence of a fellow-servant of a railroad company upon all, and not upon a particular' class, as is done by Sec. 3365-22 Rev. Stat. The last clause of this statute provides as follows: 11 that every person in the employ of such company, having charge or control of employes in any separate branch or department, shall be held, to be the superior and not fellow-servant of employes in any other branch or department who kaite no power to direct or control in the branch or department in which they are employed. ” So that under this provision an employe in one department who has no control over any other employe and no power to direct any other employe, may bring an action for the negligence of an employe in another branch or department who has some employe under him, or under his charge or control, while an employe who is working in the same branch or department with the one who has the right to bring the action but who has under his charge or control some other employe, cannot bring an action for the negligence of an employe in another branch or department although such employe may be a superior in the other branch or department — that is, may have some one under his charge or control — and so it is urged and argued that this classification of employes is arbitrary and unreasonable; that there is no just or reasonable ground for giving the one employe the right to bring his action for negligence and withholding it from the other; that such discrimination and classification is arbitrary and unreasonable and inimical to and in violation of these constitutional provisions; that if it is reasonable to confer this right upon the subordinate employe who has no one under him, it should also be conferred upon an employe who works by his side who may have some other employe under him. And the example is given of trains coming into collision, and the rights and privileges of the employes upon the same train who may be injured by the negligence of an employe upon the other train are contrasted, the brakeman upon one train having the right to maintain an action for an injury, while the engineer, who has a fireman under him, would not have a right to maintain an action for the negligence of the engineer or conductor of the other train. This classification, it is said, does not give to all of the employes the equal protection of the laws guaranteed to them by the fourteenth amendment to the federal constitution and is hostile and inimical to the principle laid down in the state bill of rights, that government is instituted for the equal protection of the people.

Classification, within certain limits, has been sustained by both the federal and the state courts. The rule seems to be that where the classification is reasonable — has some reasonable ground to sustain it — it will be upheld; but, if arbitrary and without reason, it will not be sustained by the courts, as for instance, a classification that depended upon the color of the suitor — the conferring of a right on a white man and not upon a black man, would not be sustained; or a classification, in some cases, depending upon the age of a person, and many other arbitrary classifications might be mentioned. But classifications, within certain limitations and having some reasonable ground to support them, are held valid and constitutional by the courts. The general rule is laid down in Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150 [17 S. Ct. Rep. 255], where, in the opinion of the court, delivered by Mr. Justice Brewer, on page 155, the court say :

“ But it is said that it is not within the scope of the fourteenth amendment to withhold from states the power of classification, and that if the law deals alike with all of a certain class it is not obnoxious to the charge of a denial of equal protection. While, as a general proposition, this is undeniably true (citing authorities), yet it is equally true that such classification cannot be made arbitrarily. The state may not say that all white men shall be subjected to the payment of the attorney’s fees of parties successfully suing them and all black men not. It may not say that all men beyond a certain age shall be alone thus subjected, or all men possessed of a certain wealth. These are distinctions which do not furnish any proper basis for the'attempted classification. That must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.”

Classification has been sustained in some cases in this state. In State v. Nelson, 52 Ohio St. 88 [39 N. E. Rep. 22; 26 L. R. A. 317], which refers to a statute relating exclusively to electric cars, the Supreme Court, in the syllabus, say :

“ The act of the general assembly, entitled * An act requiring persons, associations and corporations, owning or operating street cars, to provide for the well-being of employes ’ (90 O. L. 220), is not in conflict with Sec. 26, Art. 2, of the constitution of this state, which provides that ‘ All laws of a general nature shall have a uniform operation throughout the state.’ Neither is it in conflict with Sec. 1 of the fourteenth amendment to the constitution of the United States.”

The court say, on page 99 :

“ Very few statutes apply equally to every person in the state. Some apply Only to males, some to females, some to minors, some to persons of unsound mind, some to office holders and some to criminals. As pointed out by Minshall, J., in Adler v. Whitbeck, 44 Ohio St. 539, such classes are arbitrarily formed by the general assembly, and if the legislature has erred in not including what has been excepted from the operation of the law, it is simply an error of judgment in the exercise of its authority, and cannot be reviewed by the courts.”

And on page 102 this is said:

“ The appliances and construction of cars, and in fact all kinds of machinery, are continually changing, and it is within the exclusive authority of the general assembly, in the exercise of its police power, to determine, by general laws, what, if any, regulations are required for the protection of the health, safety and comfort of the operatives.”

And that statute was sustained upon the ground that this was a reasonable classification, that there were reasons, which appeared sufficient to the legislature, to require screens to be put on this kind of cars which did not apply to other kinds of cars.

In State v. Gardner, 58 Ohio St. 599 [51 N. E. Rep. 136; 41 L. R. A. 689; 65 Am. St. Rep. 785], ,the Supreme Court considered the “ Plumber’s statute,” so called, which required plumbers to procure licenses before transacting business, but exempted members of a firm if one member of the firm procured a license, and the statute was held to be unconstitutional. The court say, on page 610, through Judge Spear delivering the opinion:

“ Our bill of rights prohibits the granting of privileges to one which are denied to others of the same class, and the imposition of restrictions or burdens upon certain citizens from which others of the same class are exempt, and Sec. 26, Art. 2, of the constitution requires that all laws of a general nature shall have a uniform operation throughout the state. A statute, therefore, which imposes special restrictions or burdens, or grants special privileges to persons engaged in the same business under the same circumstances, cannot be sustained, because it is in contravention of the equal right which all are entitled to in the enforcement of laws and in the enjoyment of liberty, and in the enjoyment of an equal right in the acquisition and possession of property, and so is not of uniform operation.”

It will be observed that the Supreme Court say that a statute which imposes special restrictions and burdens, or grants special privileges to persons engaged in the same business, under the same circumstances, can not be sustained, there being no good or valid reason for any discrimination or classification between individuals who are engaged in the same business under the same circumstances. Other decisions of the Supreme Court of the United States which bear upon this question are found in Barbier v. Connolly, 113 U. S. 27 [5 S. Ct. Rep. 357] ; Missouri Pac. Ry. Co. v. Humes, 115 U. S. 512 [6 S. Ct. Rep. 110]; and Pacific Express Co. v. Seibert, 142 U. S. 339 [12 S. Ct. Rep. 250].

The doctrine of Missouri Pac. Ry. Co. v. Mackey, supra, was reaffirmed by the Supreme Court in an opinion delivered by Chief Justice Fuller in Chicago, K. & W. Ry. Co. v. Pontius, 157 U. S. 209 [15 S. Ct. Rep. 585]. The classification of railroad employes to some extent, the division of them into departments and branches, has been recognized by the courts of many of the states. A discussion of this question is found in 12 Am. & Eng. Enc. Law (2 ed.), 971. In the chapter on fellow-servants the author says :

“ In addition to the liability for the negligence of a servant charged with the performance of the master’s positive duties to his servants, there has been laid upon the master, by some courts, a further liability for the negligence of a servant engaged in a department of the same general business which is separate and distinct from the department in which the injured servant is employed.
“ This rule may be stated as follows: Where a servant is employed in a department of the general service which is separate and distinct from that of the servant or servants whose negligence caused the injury, the fellow-servant rule has no application, and the master is liable.”

To support this, a large number of cases are cited in a foot note. This classification differs from the classification under this statute in this, that it makes no distinction upon the ground that the servant has or has not other employes under him, as this clause of our statute does. The author says, on page 972:

“ The different department limitation, or the doctrine of consociation, seems to be founded entirely upon the fact that servants in different departments of a large industrial enterprise are unable to exercise any influence upon each other in the encouragement of caution, and, the supposed reason for the rule failing, the courts refuse to apply the fellow-servant rule.”

On page 978 is this:

“The constitutionality of statutes abrogating the fellow-servant rule with respect to railroad companies has been frequently contested on the ground that such statutes constitute special or class legislation. But these acts have been invariably upheld. It is authoritatively settled that such legislation is not obnoxious to the fourteenth amendment to the United States constitution as depriving railroads of property without due process of law, or as denying to them the equal protection of the laws.”

In a very recent case decided by the Supreme Court of the United States, the question of classification as applied to inheritance taxes was discussed in Billings v. Illinois, 23 S. Ct. Rep. 272, 273. The decision was rendered on January 19, 1903. The syllabus says:

“ The equal protection of the laws is not denied by the Illinois inheritance tax law because,’ under that statute, as interpreted and enforced by the state courts, certain life estates may be taxed when the remainder is to lineal descendants of the decedent, but not when the remainder is to collateral heirs or strangers in blood.”

In the opinion, delivered by Mr. Justice McKeuna, there is quite a full discussion of the doctrine of classification. The court say:

“We said (Wagoun v. Illinois Tr. & Sav. Bk., 170 U. S. 283 [18 S. Ct. Rep. 594]) it was established by cases that classification must be based on some reasonable ground. It could not be a 1 mere arbitrary selection.’ But what is the test of an -arbitrary selection? It is diffi-. cult to exhibit it precisely in a general rule. Classification is essentially the same in law as it is in other departments of knowledge or practice. It is the grouping of things in speculation or practice because they ‘ agree with one another in certain particulars and differ from other things in those same particulars.’ Things may have very diverse qualities, and yet be united in a class. They may have very similar qualities, and yet be cast in different classes. Cattle and horses may be considered in a class for some purposes. Their differences are certainly pronounced. Salt and sugar may be associated in a grocer’s stock for a grocer’s purposes. To confound them its use would be very disappointing. Human beings are essentially alike, yet some individuals may have attributes or relations not possessed by others, which may constitute them a class. But their classification — indeed, all classification — must primarily depend upon purpose — the problem presented. Science will have one purpose, business another, and legislation still another. The latter, of course, on account of the restraints upon the legislature, may not be legal — may not be within the power of the legislature: To dispute that power, however, is not the same thing as to dispute a classification, and yet that there may be dependence — more freedom of classification in some instances — has been indicated by the cases. A state cannot regulate interstate commerce, however accurate its classification of objects may be. On the other hand, the taxing power of a state is one of its most extensive powers. It cannot be exercised upon persons grouped according to their complexions. It can be exercised if they are grouped according to their occupations. A state may regulate or suppress combinations to restrict the sale of products. The power cannot be exercised to forbid combinations among those who buy products, and permit combinations among those who raise or grow products. * * * And yet, exercising its taxing power, it has been decided, that a state may make that discrimination. * * * Other illustrations may be taken' from the cases which tend to the same end. If the purpose is within the legal powers of the legislature, and the classification made has relation to that purpose (excludes no persons or objects that are affected by the purpose, includes all that are), logically speaking, it will be appro-' priate ; legally speaking, a law based upon it will have equality of operation. And, excluding our right to consider policies or assume legislation, we have many times said that a state in its purposes and in the execution of them must be allowed a wide range of discretion, and that this court will not make itself a harbor in which can be found ‘ a refuge from ill-advised, unequal and oppressive’legislation.”

It appears from these authorities, and others that might be cited, that, if the classification is reasonable, if it is in line with a reasonable and proper purpose, that such legislation will not be disturbed by the courts, although the classification may be somewhat arbitrary. There are many laws which appear to work an arbitrary classification. For example, the mechanics’ lien law, as suggested by the Supreme Court, which permits a mechanic to have a lien for his labor which it does not give to others; the laws relating to an appeal of cases from one court to another, depending upon the amount involved, and it would be hard to give a reason why a case involving $2,000 ought to be removed to a federal court when a similar case involving $1,999 ca'nnot be removed. A former statute of this state restricted the right to take a case to the Supreme Court on error (except in certain cases) which did not involve $300 or more, but it would be difficult to give a reason why a case which involved $300 should be allowed to go to • the Supreme Court and one that involved $295 should not go. But the legislature thought at that time that it was wise to make this difference and to draw the line somewhere, and it fixed the amount at $300, and the constitutionality of the statute was never questioned.

In the statute under consideration the legislature did not see fit to abrogate entirely the fellow-servant rule. The old common law rule that the master was not liable to a servant for the negligence of a fellow-servant, had been modified by the Supreme Court of this state by making the master liable for the negligence of those who were immediately superior to the employe who was injured. The legislature has modified the fellow-servant rule still further by giving to the common laborer who has no power over or control of other employes, a right to maintain an action against a railroad company where he is injured by the negligence of a superior servant, or one who has charge or control in another department or branch of the service although such superior servant may not have any control over him.

In considering the reasons for making the master liable for the negligence of a superior servant, to one under him, which has long been the rule in Ohio, we think some reason máy be found for this discrimination or classification which the legislature made in this statute. It is not necessary that the court should agree with the legislature as to the reason for the rule, but there is a difference between the situation of an employe who is a common laborer and who has no authority or control over another employe, between him and an employe who is to some extent the superior and who has charge of or control over other employes; that there is a difference between their situation and condition, it seems to us self-evident — one has some authority delegated to him by the master; stands to some extent in the place of the master, and it is best for the servant, best for the other employes and best for the public that in the conduct of railroads, that in the selection of such employes, care should be exercised by the master, and added liability will increase the degree of care exercised. The common laborer has no one under him, has no authority over or control of others; it is his duty to do simply as he is told — to obey orders, and by this modification of the fellow-servant rale, brought about by this statute, the right is conferred upon such common laborer who has no power to direct or control, to bring this action, and it is not conferred upon the servant who stands to some extent for the master in a place of authority.

It does not seem to us that this classification is more arbitrary than some others that have been made by legislatures and sustained by the courts, both state and federal. While the constitutionality of this statute has not been raised in the Supreme Court of this state, still judgments based upon this statute have been brought before that court (Railway Co. v. Margrat, 51 Ohio St. 130 [37 N. E. Rep. 11], and Railway Co. v. Erick, 51 Ohio St. 146 [37 N. E. Rep. 128] ), and both of those judgments affirmed by the Supreme Court, and the constitutionality of the statute was not questioned. And while, as I have said, the constitutional question was not raised, yet the fact that the Supreme Court affirmed the judgments that would have had no validity but for the statute, and in Railway Co. v. Margrat, supra, but for the last clause of the statute now under discussion, and it did not occur to the court that any part of the statute was unconstitutional, is significant and is entitled to consideration. I cite also Hill v. Railway Co., 12 Circ. Dec. 241 (22 R. 291), decided by this court. The opinion was delivered by Judge Parker, and contains a full discussion of this statute and the reasons for it and a citation of numerous authorities from this and other states. The constitutionality of the act was not questioned or discussed in this case.

We hold that this statute is not in conflict with any constitutional provision, either state or national; that the passage of it was within the constitutional power of the legislature, and it is, therefore, a valid statute. I have referred to some of the reasons that may have operated upon the legislative mind in the enactment of this statute; but it does not devolve upon this court, in passing upon the statute, to determine what moved the legislature to pass it or to give the exact reasons that may have led to its passage. The legislature is the law-making body of the state, and if a statute is not clearly in conflict with some provision of the constitution, it cannot be set aside by courts, although they may differ from the legislature as to the policy of the law and although it may seem arbitrary in some of its provisions.

Holding, as we do, that the statute is constitutional, there still remains the question as to whether the court, under the facts, was justified in directing a verdict for defendant. In view of our conclusion as hereafter stated, upon this question, we might have decided the case without passing upon the constitutionality of the statute, but as we were informed by counsel that other cases involving the same question were pending in this county, in the common pleas court, we thought best to announce our conclusion. The question had been decided both ways in different common pleas courts of the state, the trial court in this case (Froelich v. Railway Co., 13 Dec. 107, 110) and the common pleas of Ashtabula county (Maltby v. Railway Co., 13 Dec. 280) holding the act unconstitutional, while the common pleas court of Huron county (Roe v. Railway Co., 13 Dec. 260) held it constitutional.

The court below held that Froelich and the engineer, Stewart, through whose negligence he claims to have been injured, were in different branches or departments of service, and that, therefore, Froelich came within the terms of the statute. Froelich was employed by.the railroad company upon a coal dock in the city of Toledo, and with others operated a “ Brown hoisting ” machine in the loading of coal from cars into boats. There was an upper tipple-house in which there was an engineer working, who controlled the machinery by means of levers; and there was another tipple-house or apartment, below, where there was stationed an engineer or fireman — witnesses differed as to what he should be called. The cars loaded with coal were tipped over and emptied into large buckets by means of the machinery. The buckets were on cars or carriages, of which there were three, connected together by irons, the carriages being about twelve feet apart. There were six buckets to each car, each one holding several tons of coal, the buckets extending entirely across the cars, which were flat cars. The machinery which moved the cars on which the buckets stood was operated by the engineer above and the cars or carriages were moved up or down the river as it became necessary in loading the vessel. The plaintiff, Froelich, was one of the “hookers,” whose duty it was to hook and unhook the large hooks which were fastened into these buckets for the purpose of lifting them off the cars and unloading them in.to the hold of the vessel. This was done by power furnished by another engine. On the occasion of' the injury, which occurred early in the morning, about daylight, plaintiff had hooked the hooks onto the buckets, the carriage having been unloaded, and it was necessary in the performance of his duty for him to go to the other side of the tipple-house. Instead of walking around, he attempted to jump onto the platform of the car just in front of the buckets, aud as he was about to get onto the carriage, he claims that the engineer in the tipple-house negligently threw on the power and started the carriage in motion and he was thrown off and crushed between the bucket and the lower part of the tipple-house and quite seriously injured. "

It is claimed that Froelich and this engineer were in separate departments of the service, and, therefore, that this case is withiu the statute. There was over all the men a superintendent, a Mr. Dewey, and over each gang a foreman. The foreman over this gang was a man named Roe, and in charge of the machinery and the engines and the derricks on the docks, to see that they were kept in repair, was a chief engineer by the name of Whistler. The question is, whether Froelich, under these circumstances, was in a separate department or branch of the service from the engineer.

In the case of Railway Co. v. Margrat, 51 Ohio St. 130 [37 N. E. Rep. 11], the Supreme Court has construed, to some extent, this statute. The court say, through Judge Bradbury delivering the opinion, on pages 144 and 145:

“ The section, however, makes no attempt to define the terms, ‘ department,’ and ‘ branches; ’ but these terms should not be limited so as to embrace, merely, those large divisions, created for convenience in administering the affairs of the company. On the contrary, it is more reasonable to suppose that they relate to those minute ones which concern the daily duties of the employes. Those terms are general and comprehensive ; but as the legislature discloses no purpose, in this connection to regulate the internal affairs of a railway company, it should not be presumed to refer to divisions of its business made for its own ends; and if not to such divisions, what divisions could it mean but those which divide up the employes while in actual service. The section expressly declares a purpose to enlarge the remedy of the employes for accidents occurring in the course of their employment. This declaration emphasizes the presumption that the terms under consideration should be construed as referring to conditions affecting them, rather than to those which are established by the company for its own purposes.
Without pursuing the matter further, we hold that, under the section of the statute under consideration, an engineer on one train is in a separate branch of the company’s service from that of a brakeman of another train belonging to the same company.”

It was held by this court, in the Huron county case, heretofore cited, Hill v. Railway Co., 12 Circ. Dec. 241 (22 R. 291), that a brakeman and an engineer, upon the same train, are within the same branch or department of service; as was said in the syllabus:

“ An engineer and a brakeman being upon the same train in the promotion of a single object, such as the moving of the train, and associated together in such a way in that enterprise that they would naturally be careful of the train and therefore careful of one another, are in a single department, and not in separate departments, within the meaning of Sec. 3365-22 Rev. Stat. (97 O. L. 149), providing that every person in the employ of a railroad company ‘ having charge or control of employes in any separate branch or department, shall be held to be the superior and not the fellow-servant of employes in any other branch or department.’ ” * * *

Were Froelich and this engineer situated any differently, so far as this statute is concerned, from a brakeman and an engineer on the same train ? One of the reasons for the granting of this right to sue under this statute is that employes in different branches of the service are so situated they are not working together for the same common purpose and are not so situated that they can exercise care towards each other. But where they are engaged in the same branch of service, although in different capacities, this reason does not exist. In this case, there was an engineer and a man under him, in the lower part of a tipple-house, and men who assisted in the dumping of the cars and other men engaged in unloading the coal into the boats, and men in other capacities about the machine, all engaged in one common service — the employment of unloading coal into boats at the dock, by means of the machinery. The labor of Froelich was necessary in the carrying on of this work; the labor of the engineer in the upper tipple-house, where he was manipulating the machinery by means of levers, was necessary also in the carrying on of the work. At the time Froelich was injured he was riding on a car moved by the machinery under the control of the engineer, and it was by his negligence in starting the car before the plaintiff had time to get firmly on that, it was claimed, he was injured, but the duties of Froelich and of the engineer, Stewart, were not such — as was said by the Supreme Court in Railway Co. v. Margrat, supra — as divided or separated them from each other in their employment, but they were both, along with the other men, employed about this hoisting machine, engaged in one common service, as it seems to us, the same as a brakeman and an engineer employed upon the same railroad train; both performing duties in relation to the train and its movements and control, but not engaged in such a service or operation as divides them or separate them into different departments or branches!

This being our view of the case, it seems to us that the engineer, Stewart, whose negligence is complained of, and Froelich, were not in separate branches or departments at the time of Froelich’s injury, and that, therefore, his case does not come within the statute under consideration. It devolves upon the plaintiff who brings an action under this statute to show by the evidence that he is within the provisions of the statute. This statute is a modification of the fellow-servant rule, which prevailed before its passage, and, in order to entitle him to recover, he must show by the evidence that he is within the provisions of the act. We think the evidence fails to do this; but, on the contrary, shows that plaintiff and the engineer were in the same branch or department of the service. Therefore, while we disagree with the court below as to the grounds upon which its action was based in taking the case from the jury, we hold that the action of the court in that respect was right, for the reasons stated, and therefore, that there was no error in directing a verdict for the defendant.

Holding as we do, that Froelich and the engineer, Stewart, were not in different branches or departments, it is not necessary for us to discuss the questions of negligence which were argued before us. The judgment of the court of common pleas will be affirmed.