text:
    Clough v. Long et al.

      Alimony—Modification of decree after term — Award in gross sum—Real estate.
    1. While as a general rule the jurisdiction of a court in alimony proceedings is a continuing jurisdiction,' it does not necessarily follow that every decree in alimony may be open to change or modification, and that the court may not by its decree, or the parties by their agreement, when the same has been judicially sanctioned by a decree of the court, completely foreclose any right to a future revision or change thereof.
    2. When a gross sum is allowed as and for alimony, and full payment thereof has been made, such allowance is generally recognized as a final adjudication of the rights of the parties, and the court’s jurisdiction is .at an end.
    3. Real estate decreed in fee simple as an allowance in gross for alimony is final in so far as it relates to such property, and the court has no jurisdiction to modify or change such a decree at a subsequent term.
    (Decided January 21, 1918.)
    Error: Court of Appeals for Ross county.

      Mr. Elijah Cutrighi, Jr.; Mr. George B. Okey and Mr. C. A. Radcliffe, for plaintiff in error.

      Mr. John P. Phillips and Mr. Lyle S. Evans, for defendants in error.
   Middleton, J.

Plaintiff in error, George Clough, was the plaintiff below in an action which he instituted on April 6, 1916, to recover possession of and title to certain real estate. In his original petition he alleges, in substance, that by the consideration of the court of common pleas of Ross county, on the 12th day of December, 1897, Virginia Clough, then the wife of the plaintiff, obtained a decree of divorce and award of alimony against him; that said allowance in alimony was one in gross for the sum of $2,500 in money and the undivided one-third of a certain farm situate in said county and known as the Crookham Farm, containing 775 acres more or less; and that the terms of the decree provided that the said Virginia Clough should “have, own, possess and enjoy in fee simple, as and for alimony,” the equal undivided one-third part of said real estate. The petition further states that subsequent to this decree, and on or about the 23d day.of March, 1898, the plaintiff, never voluntarily consenting to said decree and award and never agreeing for a division of his property, but solely for the purpose of carrying said decree and award into effect, and for no other purpose and upon no other consideration whatsoever, executed a deed to said Virginia Clough for certain real estate then and theretofore the property of plaintiff. A full description of the lands so conveyed by said deed is set out in the petition, and it appears therefrom that they amounted to about 369 acres. It further appears from this deed, which is set forth in full in the petition, that, in addition to the alimony awarded Virginia Clough, the plaintiff received a further consideration of approximately $5,000 by Virginia Clough agreeing to discharge certain indebtedness of plaintiff amounting to that sum. While the petition does not state that the land so conveyed was the land awarded in the decree, it is to be assumed from certain references in the deed that it included the land so awarded, and, in addition, certain other lands which were conveyed .presumably for the additional consideration.

The plaintiff further recited in his petition that this property so conveyed was ancestral property, that the said Virginia Clough went into the possession of the same and had and enjoyed the rents and profits thereof until her death on the 27th day of November, 1910, and that on the 30th day of December, 1910, her last will and testament was filed for probate in Ross county, wherein the said Virginia Clough attempted to devise to the defendants in error the real estate described in said deed.

He further alleges in his petition that the purpose of said conveyance, in compliance with said order, decree and award, was for the support and maintenance of Virginia Clough during her lifetime, and, that, said real estate having been so used by her during her life, at her death her rights thereto terminated, and said real estate reverted, and was intended by the plaintiff and the order, decree and award of the court to revert, to him.

The prayer of the petition is that the title to said real estate be reinvested in the plaintiff, and that said award of alimony be modified so as to limit the title of said Virginia Clough to and in said real estate to a life estate.

A demurrer to this petition was filed in the court below, which was sustained, and the plaintiff not desiring to plead further judgment was rendered on the demurrer. Error is now prosecuted to reverse that judgment.

It seems to be conceded by counsel for both parties that the plaintiff in error’s right of action and the sufficiency of his petition depend upon the question whether or not the court of common pleas of this county has a continuing jurisdiction in the matter of the alimony awarded Virginia Clough, and upon whether the original action for said alimony continued to be and is now pending in said court. While we do not consider that this question may be wholly determinative of the issues presented by the petition, in view of other questions that might arise in respect to the deed subsequently executed by George Clough to Virginia Clough, it may be assumed for present purposes that the right to now modify this decree is decisive of the whole case.

It is contended in support of plaintiff’s right of action that the allowance of alimony rests wholly upon the marital obligation of maintenance and support, and to a great extent is limited to that purpose only; that the jurisdiction of the court in an alimony matter is a continuing jurisdiction; and that the court has full authority at any time subsequent' to any allowance of alimony to revise, change or modify the same.

We are not disposed to question seriously any of the propositions so urged, and especially the proposition that the jurisdiction of the court in alimony proceedings is ordinarily a continuing jurisdiction. That question seems to be definitely settled, in this jurisdiction at least, by the case of Olney v. Watts, 43 Ohio St., 499, and the very recent case of Smedley v. State, 95 Ohio St., 141, in which latter case it is said at page 143:

“It is well settled that the jurisdiction of a court in an alimony case is continuing.”

We are not, however, inclined to accept the rule so announced in this latter case as exclusive, especially in view of the character of the alimony involved in that case and of the award made therein. While, as we have observed, we admit as a general proposition that such jurisdiction is continuing, it does not necessarily follow that every decree in alimony may be open to change or modification, and that the court may not by its decree, or the parties by their acts and agreement, when the same have been judicially sanctioned by a decree of the court, completely foreclose any right to a future revision or' change thereof. Petersine v. Thomas, 28 Ohio St., 596; Law v. Law, 64 Ohio St. 369, and Hribal v. Hribal, 11 C. C., N. S., 404.

In the case of Petersine v. Thomas, the court, speaking through Judge Ashburn, say in respect to this question:

. “Once this discretionary power of the court, in allowing alimony, has been fully exercised in a case, it is ordinarily at an end — exhausted. So that, when once the court has allowed to the wife, what it considers just and equitable alimony in gross, and a divorce is at the same time granted, she will be deemed to have been allowed her just and equitable portion of her husband’s estate. The court may, however, in the exercise of a sound discretion, grant the divorce, and make the alimony allowed payable in installments, and by continuing the alimony branch of the case, hold the parties and subject-matter, by proper orders, so under its control, as to increase or diminish the allowance as equitable circumstances and justice shall require.’*

In Law v. Law, at page 375, it is held unequivocally that, “Where the terms of a decree as to alimony are fixed by the court pursuant to an agreement of the parties they are not subject to modification.”

When a gross sum is allowed, the courts generally recognize it as in full satisfaction of all claims, and regard the award so made as final, and the awarding court’s jurisdiction at an end, unless there is some statutory authority continuing its jurisdiction. Plaster v. Plaster, 47 Ill., 290; Stratton v. Stratton, 73 Me., 481; Mitchell v. Mitchell, 20 Kan., 665; Sammis v. Medbury, 14 R. I., 214; Kamp v. Kamp, 59 N. Y., 212, and Johnson v. Johnson, 65 How. Prac., 517.

In the case of Shaw v. Shaw, 59 Ill. App., 268, the court say:

“Where, in a decree for divorce, the wife is given a gross sum as her alimony, it is in full discharge and satisfaction of all claims for future support, and the court has no jurisdiction to modify it at a subsequent term.”

Among cases where a gross sum has been allowed and paid, and the decree of the court fully executed, we have found no case, nor has any been cited to us, which would authorize the court to deny such a decree the same finality with which other judgments are regarded. We think it may be deduced from the authorities on this question that whether the jurisdiction is continuing or not depends wholly on the character of the decree itself, and on whether it has been executed and full payment made thereunder, or not.

Referring now to our statutory provisions on this subject, it is thus provided in Section 11998, General Code:

“Upon satisfactory proof of any of the charges in the petition, the court shall * * * give judgment in favor of the wife for such alimony-out of her husband’s property as is equitable, which may be allowed to her in real or personal property, or both, or in money, payable either in gross or by installments.”

It is settled in Gallagher v. Fleury, 36 Ohio St., 590, and Herron v. Herron, 47 Ohio St., 544, that real estate may be decreed in fee simple as an allowance in gross for alimony. The decree in the instant case is. one of this character. It is one wholly unconditional. There is no reservation either express, or implied in any of the conditions of the court’s order and decree which would suggest that the court intended it to be subject to any future revision or modification. It was in every respect, therefore, a finality so far as the court could make it such. It was expressed in terms which left no doubt whatever that the court intended it to be a final adjudication of the rights and obligations of both parties.

There is nothing disclosed in the petition to justify the claim therein that this real estate was intended by “said order, decree and award to revert to the source from which it came,” and this allegation must be regarded as a mere conclusion of the pleader, without any support thereof to be found in any other statement in the petition.

In Herron v. Herron, supra, the court say at page 549:

“This transfer of title was not by any act of the husband, but by the fiat of the court. Hence it is to the purpose of the court we must look, and not the purpose of the husband. The decree is not difficult of construction. It explains itself.”

While the title in the instant case was conveyed by an act of the husband, yet the consideration for that act is the title conveyed by the decree of the court, and that title as so conveyed is the title which must control the jurisdiction of the court in respect to a modification thereof. It is not, therefore, to the purpose of the husband that we must look, in this case, but the purpose of the court in its original award, and, if the husband misconceived the latter’s purpose, and the scope and effect of its decree, he did so at his peril.

The court continuing in Herron v. Herron say:

“The title received by the wife was as full and ample as though a conveyance from the husband had been made, and she took a title in fee simple. * * * She took as a purchaser.”

So in the instant case Virginia Clough, by virtue of this decree, took a title in fee simple to the lands included in said decree, as a purchaser, and a subsequent conveyance of said lands by her husband could not in any manner affect her title thereto, theretofore conveyed to her by the decree of the court.

We conclude that the decree for alimony involved in this controversy is one not subject to any change or modification, and that any subsequent change in the conditions or circumstances of either party to the original action may not be considered by the court of common pleas as affecting in any manner the finality of its former decree.

The judgment of the court of common pleas is affirmed.

Judgment affirmed.

Walters and Sayre, JJ., concur.


source: Caselaw Access Project

author: Jones, P. J.

license: Public Domain

text:
    Kraemer et al. v. The Board of Education of Cincinnati.

      Error—'Verdict —Evidence — Jury fees — Eminent domain—View by jury—Burden of proof — Appropriation of lands—Board of education—'Value of property taken, how established — Effect of receiving amount of judgment — Number of jurors necessary to return verdict.

    1. In a proceeding for the appropriation of lands brought by a board of education the view had by the jury necessarily cannot be limited to the property itself, but must include its immediate surroundings. The jury is entitled to, and must necessarily see, the land immediately surrounding that which is to be appropriated.
    2. There is no rule in such a proceeding as to the burden of proof, nor is the property owner required to prove the value of his property by any preponderance of the evidence.
    8. It is error in suoh a proceeding to refuse to permit the owner of the property to fix its value upon any plan most desirable to secure its sale at the best price available.
    4. There is no authority in such a proceeding for taxing against the owner of the property a charge for fees of the jury.
    5. The fact that the property owner receives the amount of a judgment paid into court in no way prevents his insistence upon any rights he may have or interferes with the prosecution of an error proceeding.
    6. There is no requirement in such a proceeding that all twelve jurors agree and sign the verdict.
    (Decided March 19, 1917.)
    Error : Court of Appeals for Hamilton county.

      Messrs. O’Connell & O’Connell, for plaintiffs in error.

      Mr. Charles A. Groom, city solicitor, and Mr. Dennis J. Ryan, assistant city solicitor, for defendant in error.
   Jones, P. J.

This action originated in the insolvency court as a proceeding brought by the board of education to appropriate lands of the defendants for use for school purposes.

Under the provisions of Section 7624, General Code (103 O. L., 466), such proceedings are had as provided for an appropriation of private property by municipal corporations. These provisions of the General Code are found in Part First, Title XII, Division III, Chapter 1.

As a matter of right, the owner of the property is entitled to an order from the court for a view of the premises by the jury, under Section 3684, General Code, and it is not a matter for the discretion of the court as in ordinary civil cases under Section 11448, General Code.

The court in ordering a view of the premises in this case properly stated:

“The object of sending the jury out to view the property is to get the lay of the land in your minds and the environment of it, so that when the evidence of the value of the land is produced by the witnesses you can apply the evidence to the conditions as you have viewed them.”

This view is for the purpose of seeing the real estate to be condemned; not for the purpose of fixing its value by the jury from its own opinion formed by such view, but for the purpose of properly considering the evidence of such value produced in court from the witness stand.

The view had by the jury necessarily cannot be limited to the property itself, but must include its immediate surroundings. That is, a jury cannot be taken to the property blindfolded, as it were, and see only the land included within its boundaries, but must as the trial court suggested “get the lay of the land” and see its immediate environment.

In ordering the view of the premises in this case it appears, on page 6 of the record, that counsel for the board of education said:

“As. I understand it, the jury is not to have their attention called to anything but the Kraemer property.
“The Court: That is' it, they are to have their attention called only to the property itself.”

To this ruling of the court a general exception .was taken by the defendants.

The court erred in so limiting the view of the jury. Counsel for defendants desired particularly to have the attention of the jury called to the property immediately across Kendall avenue upon which the property to be appropriated abutted. They had a right to have the jury see-that property, as it constituted part of the immediate surroundings of the land under consideration. The value of real estate depends largely upon its location and upon the improvements that are immediately adjacent to it. -While it would not be proper to have the jury conducted over any considerable part of the city for the purpose of viewing lands not immediately connected with that involved in the proceedings, still they are entitled to see, and must necessarily see, the lands immediately surrounding that which is to be appropriated; and -the property owner in this case was deprived of a statutory right in not being permitted to call the jury’s attention to the property immediately surrounding the land in question.

In its general charge to the jury the court used the following language:

“It is not the province of the court to tell you all the things to do or how to arrive at compensation, other than I have indicated, but in fixing the measure of compensation in this case, the rule is that the burden of proof, the amount of compensation, is. on the property owner. The property owner-must prove the value of the property by a preponderance of the evidence.”

The court committed an unfortunate error to the prejudice of the plaintiffs in error in this part of its charge. Appropriation proceedings are special in their nature. They are not necessarily adversary. There is no rule as to the burden of proof, nor is the property owner required to prove the value of his property by any preponderance of the evidence. It is the duty and privilege of the parties in the case to inform the jury by proper evidence of the fact to be determined. In this case it was a simple question of the value of the land to be taken. The owner of the property produced witnesses who were familiar with values of real estate in that locality, particularly the value of the land in question ; and the board of education also produced evidence of that character. In this case, as frequently occurs, the witnesses for the plaintiff fixed values in s.omewhat similar amounts much less than the values fixed by the owner of the property and the witnesses produced by him. The charge as given by the court might doubtless be construed by the jury as requiring the owner of the property to establish by a preponderance of the evidence the value as fixed by his witnesses, the burden of proof having been placed by the court upon him; and the owner failing so to do the. jury might feel that under this charge they would be authorized to reject the evidence offered by the property owner and confine themselves to that produced by the 'board of education. Such a result should not be permitted, nor should any warrant for such view be contained in the charge of the court. In this case such a result might more readily happen, from this erroneous charge, for the reason that the court very properly stated in another part of its charge that the jury would not be permitted merely to average the testimony given; and they were properly cautioned by the court not to take the values as testified to by the different witnesses and divide the same by the number of witnesses. Such a method is not permitted by the law, because it in effect puts every witness, good, bad and indifferent, on the same plane, no matter how well or illy qualified he may have shown himself to be to fix a proper value. But as stated above, we can well see that this part of the charge, taken in connection with the erroneous paragraph which we have cited above, might work to the great detriment of the property owner.

Counsel for plaintiffs in error also urge upon the court what are claimed to be errors regarding the admission of testimony — particularly in the refusal of the court to permit the consideration of front-foot values, as applied to the land appropriated. In the opinion of the court the record discloses a disposition on the part of the trial court to confine the testimony to a valuation by the acre rather than by the front foot. Undoubtedly the property owner was entitled to show the value of his land by either method, and to have the jury give full consideration to such evidence. On page 255 (record) the court in ruling upon an objection by counsel for plaintiff stated:

“When you sell property by the acre and you sell property by the foot, it is two different propositions. I will have to sustain that objection.”

There was no exception taken to this ruling. And again on page 39, where the property owner himself was on the stand and was testifying as to the value of part of the land by the front foot, under a plan of subdivision that he deemed available, and was fixing a value by frontage of one of such proposed lots into which he expected to divide the property, the court ruled:

“It is not property by feet. It is not a value of any particular thing. It is a value as an entirety they are condemning here. I cannot see where the pertinency of this comes in in examination in chief.”

An exception was reserved to this ruling, and we think the court erred in refusing to permit the owner of the property to fix its value upon any plan most desirable to secure its sale at the best price available. These rulings of the court could not but prejudice the property owner’s case before the jury.

In taxing the costs, it appears that a charge for fees of the jury amounting to $150.80 was taxed against the owner of the property. No authority for this in the statutes has been pointed out to us, Presumably it was done pursuant to Section 11089, General Code, but this section of the statutes does not appear in the chapter that controls this appropriation, but is in the chapter providing for the appropriation of private property by a public corporation. As to such corporations it has been upheld in Detroit Southern Rd. Co. v. Commissioners of Lawrence Co., 71 Ohio St., 454, and on page 458 of the opinion of the court it is conceded that such is not the rule with reference to municipal corporations ; and this appropriation by the board of education, as we have before stated, comes under the same chapter as that by municipal corporations. In our opinion it was error to tax jury fees in this case against the property owner, as part of the court costs.

It appears that the board of education has paid the amount of the judgment into court and taken possession of the property appropriated, that Albert O. Kraemer has withdrawn from his account the money so paid and receipted for the same to the clerk of the court, and that on an order of the court below bonds were given by the board of education and by Albert O. Kraemer, respectively, on the one part to pay any additional sum that might be awarded and on the other to pay back any excess that may be found to have been so paid if another trial should be had as a result of this error proceeding. It is now argued that because of the receipt by Albert O. Kraemer of the money so paid into court he must be deemed to have accepted the result of the trial below, notwithstanding this proceeding in error, which ’ thereby becomes a moot case and should be dismissed.

Under Section 3695, General Code, there is distinct authority given to the board of education upon the entry of a judgment to pay in the money and take possession of the land. While no express authority is set out in the statute for the withdrawal of the money by the property owner, it is clear that it was paid into court for his benefit as an equivalent for his land which is at once taken for public use. No provision is made for payment of any interest upon the money or its investment for his benefit. As he has lost his land, he at once becomes entitled to the money paid a§ its equivalent. If it should ultimately be determined not to be the proper amount, security given by each of the parties insures the proper final adjustment. The fact that he has received the money so paid in no way prevents his insistence upon any rights he may have or interferes with the prosecution of this error proceeding. The reasons, as discussed at length in the opinions of the court in Meily v. Zurmehly, 23 Ohio St., 627, and Wagner v. Railroad Co., 38 Ohio St., 32, are conclusive, although these cases involve appropriations by corporations under the other chapter.

It is also urged that the law requires all twelve jurors to agree and sign' the verdict, and that only ten signed the return iri this case. A decision of the probate court of Pike county is cited to support this claim. (N. & W. Ry. Co. v. Foster, 19 N. P., N. S., 267.) To the contrary is The Ohio Light & Power Co. v. Gutridge, 12 O. L. R., 211, at page 214. An appropriation proceeding by a corporation is by Section 11075, General Code, declared to be a civil action. Sections 3683 and 3695, General Code, also classify an appropriation by a municipality as a civil action, the former section providing that “the jury shall be drawn and the trial proceed as in other civil actions.” Section 11455, as amended 103 Ohio Laws, 11, by virtue of authority given in Section 5, Article I of the Constitution (as amended September 3, 1912), provides that “In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number.” This clearly applies to the instant case, and the charge of the, trial court in that respect was correct.

For the reasons stated, the judgment of the court below must be reversed and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

Gorman and Hamilton, JJ., concur.


author: Allread, J.

text:
    Local Branch No. 248 et al. v. Solt.

      Union labor—Contract for exclusive employment—Breach by building owner—Legality of threatened withdrawal—Discharge of nonunion employe — Liability of labor union.

    1. Where the owner agrees to the exclusive employment of union labor in the construction of a proposed building, and union workmen acting and relying thereon have accepted employment, the subsequent employment of a nonunion workman for the execution of a branch of the work is a violation of the owner’s agreement, and a mere threatened withdrawal by the union workmen or by the union in their behalf, in the event that the nonunion workman is not discharged, is not illegal.
    2. Where a nonunion workman is employed for the execution of a branch of the work, under plans and specifications requiring the exclusive employment of union labor, and is discharged by the owner in consequence of a threat of the union labor employed upon the building to strike if the nonunion workman is not discharged, the nonunion workman has no cause of action against the labor union where no malice is charged and where no violence or other unlawful means is threatened.
    (Decided March 16, 1918.)
    Error: Court of Appeals for Eranklin county.

      Mr. F. S. Monnett; Mr. H. H. Felsman and Mr. Robert J. Beatty, for plaintiffs in error.

      Mr. N. B. Collins, for defendant in error.
   Allread, J.

Benjamin C. Solt, a master painter, obtained a contract from the Photo Play and Amusement Company, the owner and builder of the Majestic Theater, for the finishing and painting of me woodwork of the lobby and canopy, or marquise, for the sum of $270.

The building was constructed by different contractors under plans and specifications adopted by the owner. These plans and specifications included a notice to bidders,'containing the following clause:

“Union Labor: Each and every contract entered into under these specifications and accompanying plans shall be executed in every detail by union labor.”

Solt personally undertook to do most of the work embraced in his contract. Later he was assisted by a union painter procured by the superintendent of construction.

Solt admits that he had not for several years held a union card; nor had he signed the union scale of wages.

It appears that at the time Solt obtained his contract the work upon the building was nearing completion, and the time had been fixed and published for the opening of the theater. Work upon other contracts was being executed wholly by union labor. Complaint having been made to Local No. 248 of the National Decorators’ and Painters’ Association, one of the plaintiffs in error, an investigation was had and resulted in the appointment of a committee who called upon the representatives of the owner and notified them that unless Solt was withdrawn the unions would declare the owner unfair and call off all union labor then at work upon the building.

Neither in the petition nor in the evidence does it appear that there was any threat of violence, of boycotting, or of preventing the employment of other workmen to complete the büilding. The sum and substance of the demand and threat was merely the withdrawal of'union labor from the work.

This case presents a somewhat unusual feature.

Modern statutes and modern decisions, we think, recognize the rightful place of labor unions as organizations in the advancement of the interest of the laboring classes, and their rights and limitations have been frequently considered. The weight of authority'upholds the right of a labor union, in the absence of an inconsistent contract, to advise and procure the withdrawal of union labor from a given work, either singly or in combination, where no violence or other unlawful means are employed and where the object of the strike is not unlawful. The Fulworth Garment Co. v. The International Ladies' Garments Workers' Union, 15 N. P., N. S., 353; Kemp v. Division No. 241, 255 Ill., 213; Iron Molders' Union v. Allis-Chalmers Co., 166 Fed. Rep., 45; I. F. Parkinson Co. v. Building Trades Council, 154 Cal., 581, and 16 Ruling Case Law, 444-460.

A strike is defined as “The act of a party of workmen employed by the same master, in stopping work all together at a prearranged time, and refusing to continue until higher wages, or shorter time, or some other concession is granted to them by the employer.” (Black’s Law Dictionary.)

Bouvier defines a strike as “A combined effort by workmen to obtain higher wages or other concessions from their employers, by stopping work at a preconcerted time.”

In Kemp v. Division No. 241, supra, it is said at page 222: “The threat made by the committee that the members of the union would call a strike of the employees of the Railways Company unless their demands were complied with, meant no more than that the union employees would.be notified to quit in a body at a definite time if the non-union employees were retained in the service.”

So here the threat of the committee of the Locals to call a strike meant no more than that they would call off the union workmen from the building if their demands were not met by the employer.

This brings us to the legality of the purpose of the proposed strike.

The owner had voluntarily agreed to the exclusive employment of union labor in the execution of every detail. The consideration for this agreement is based upon the presumed advantage arising out of the employment of union labor. The contract was for the benefit of union labor. After the contract had been recognized and acted upon by union workmen, the agreement became a valid obligation. The employer had obtained the benefit of the provision throughout the work of construction and up almost to the time of completion of the building.

The recent cases sustain the validity of contracts made by the employer for the exclusive employment of union labor, particularly where the supply of union labor is adequate or where provision is made for the unionizing of workmen in case of shortage. Natl. Fireproofing Co. v. Mason Builders’ Assn., 169 Fed. Rep., 260; Jacobs v. Cohen, 183 N. Y., 207; Mills v. U. S. Printing Co., 99 App. Div. (N. Y.), 605; Hoban v. Dempsey, 217 Mass., 166, and 16 Ruling Case Law, 426.

To the contrary are Curran v. Galen, 152 N. Y., 33, and Berry v. Donovan, 188 Mass., 353.

We are not required to express an opinion as fo the natural and constitutional right of labor unions to interfere between employer and nonunion employes. In this case the employer agreed to employ union labor exclusively. There was no duress or unfair means employed to secure the contract. The contract was voluntary, and was by implication a recognition of the right of the Locals to act on behalf of and in the interests of union labor. The condition in the contract for the exclusive employment of union labor entered into and became a condition of employment in all branches of the building contract, and the union workmen had the legal right to withdraw from the work at any time the condition was violated.

This was the situation as between the union labor employed on the building and the employer, and we think it clear that the Locals and the committee acting on their behalf had the right, when the condition of employment was violated, to order the withdrawal of union labor from the work.

There is a question raised as to whether Solt’s obtaining the contract and working upon the job was itself a violation of the employer’s contract with union labor.

Solt undertook personally to do most of the work contracted for, although he admits that he was not affiliated with any labor organization and had signed no union wage scale. He was of the opinion that his taking the contract was not a violation of the contract for the employment of union labor, and the owner and its agents were of the same opinion, and acted in good faith, although, we believe, mistakenly.

Whatever might have been Solt’s right as contractor, and as overseer or superintendent of the work, we think under a fair construction of the agreement as to union labor there was a violation of the contract when he undertook to do the work himself. The owner in contracting with union labor clearly contemplated that the work in every detail should be performed by union labor. This contract could not, in our judgment, be fulfilled by letting the work to one or more nonunion contractors to personally perform the labor.

Solt testifies that he examined the portion of the specifications relating to painting, before he took the contract. The specifications as to painting referred to the notice to bidders which contained the provision as to the exclusive employment of union labor.

While Solt testified that nothing was said in his verbal contract as to the employment of union labor, yet we think it sufficiently appears from his own testimony that he knew that union labor was required to be employed upon all features of the building.

Solt’s rights are, therefore, under all the evidence, clearly subject to the condition as to the exclusive employment of union labor, and his right would, therefore, rise no higher than that of his employer.

But even if Solt took his contract in ignorance of the condition expressed in the owner’s contract, as to union labor, then his right of action, if any, would be against the owner and not against the labor organization.

The plaintiffs in error having, therefore, acted within their legal rights, the threatened strike was not illegal and- the discharge of Solt so far as the plaintiffs in error were concerned is damnum absque injuria. 16 Ruling Case Law, 460.

The fact that certain members of the Locals obtained employment after the discharge of Solt does not change the legal status. There is no charge of malice; and it was a natural and anticipated result that some of the union would be benefited by the performance of the union-labor contract.

Plaintiffs in error moved at the close of the plaintiff’s evidence and also at the close of all the evidence for an instructed verdict in their favor. The court overruled the motions and submitted the case to the jury, which returned a verdict for $500. A judgment was rendered upon the verdict, and error is prosecuted to this court.

We have reached the conclusion that the motions of the plaintiffs in error for a directed verdict should have been sustained.

The judgment of the court of common pleas is therefore reversed; and final judgment in favor of plaintiffs in error will be ordered.

Judgment reversed, and judgment for plaintiffs in error.

Kunkle and Ferneding, JJ., concur.


text:
    Lockwood et al. v. The Aetna Life Insurance Co.

      Master and servant — Illegal employment—.Employers’ liability insurance— Knowledge of non-age of employe — Liability of -insurance company to insured employer.

    While it is true that it would be necessary to show that .an employer had knowledge of the non-age of an employe, in order to render him guilty of a misdemeanor in such employment, and subject to the fine and imprisonment provided by law, yet such knowledge is not necessary in order to make the employment illegal for the purpose of a suit for personal injuries or under the terms of an indemnity policy referring to illegal employment.
    (Decided July 3, 1917.)
    Error : Court of Appeals for Hamilton county.

      Messrs. Robertson, Buchwalter & Oppenheimer, for plaintiffs in error.

      Messrs. Paxton, Warrington & Seasongood, for defendants in error.
   Jones, P. J.

This is an action brought by plaintiffs in error, Edwin F. and Harry Lockwood, partners, as plaintiffs, against defendant in error, as defendant, under a policy of manufacturers’ employers-liability insurance, in which plaintiffs seek to recover the amount of the judgment and costs obtained against them for damages on account of bodily injuries accidentally suffered by a child employed in their factory, by reason of the operation by him of a stamping-press machine used in stamping tinware.

The injured boy, Arthur J. Ruschell, by his guardian, brought an action for his damages by reason of personal injuries suffered during the operation of said stamp press; and George Ruschell, the father of said boy, also brought an action on his own behalf for loss of services of his infant son by reason of said injury.

Upon the happening of said accident the insurance company was notified by the employers, and upon the filing of the suits copies of the summons in said cases were sent to defendant in accordance with the requirements of their indemnity insurance policy. Thereupon the agents for the insurance company advised plaintiffs of the possible illegal employment of Ruschell,. whereupon the plaintiffs answered they were advised that the age was not the important feature of the case, and stated further, “However, we feel we can prove his age.” It appears, however, that the boy was fourteen years and four months of age at the date of the happening of the accident, and the defendant was unable to prove to the contrary, although it had been reported to it at the time of the employment that he was fully sixteen years of age.

The defendant claims to have accepted the case and taken charge of its defense, through its attorneys, with the understanding, that, if it appeared at the trial that the statute was violated in the employment of Arthur Ruschell, it would not be responsible for the expenses incurred or for any judgment taken. There is a dispute between the parties as to whether or not these conditions were accepted. At any rate, counsel for the defendant company filed an answer in each case. One case went to trial and was partly heard, when, because of misconduct of one of the jurors, the jury was discharged and the case continued. Afterwards other counsel employed by plaintiffs were associated with those of the insurance company, and it appearing to the insured that the insurance company would take the position ultimately that the accident and injury were not covered by its policy, an agreement was made, in the form of a stipulation, and filed in the Ruschell suit, as follows :•

“Whereas, The Aetna Life Insurance Company of Hartford, Connecticut, by their policy No. E. 20952 (Accident and Liability Department) did thereby insure the defendants in the above entitled cause from the 15th of August, 1905, to the 15th of August, 1906, against loss or expense arising or resulting from claims upon them for damages on account of bodily injuries accidentally suffered by reason of the operation of the trade or business described in said policy; and
“Whereas, the trial and defense of the above entitled cause is now being conducted by the said Aetna Life Insurance Company on behalf of the defendants, in pursuance of the terms of said policy, but that nevertheless, the said The Aetna Life Insurance Company does contend that the injury to the plaintiff in the said suit was not covered by their said policy, and that said company is not subject to protect any recovery in the case, while the defendants claim that it was covered by the policy and the said insurance company is liable for any recovery.
“Now Therefore, it is agreed and stipulated by and between The Aetna Life Insurance Company and the- defendants in the above suit, that they do hereby consent to a verdict being returned by the jury assessing the plaintiff’s damages at the sum of $1200.00; and that a judgment may be entered thereon for that amount, from which no appeal or proceedings in error shall be taken; and all of which, together with the payment and satisfaction of said judgment, by either party shall be without prejudice to the question, whether said accident and loss was covered by said policy of insurance, and the rights and liability of the parties to said insurance contract.
“Cincinnati, Ohio, this 3rd day of June, 1909
“The Aetna Life Insurance Company
“By T. B. Paxton; Jr.,
“The Lockwood Manufacturing Company
“By C. D. Robertson, its Atty.
“The same agreement, terms and conditions apply to the suit of the father against the defendants, where the consent verdict is for $300.00.
“The Lockwood Mfg. Co.,
“By C. D. Robertson, Atty."

At the same time this stipulation was agreed upon a settlement was effected by the attorney for the Lockwoods, and they afterwards paid the judgments in both of these cases together with costs, and, as stated above, this suit is. to collect same from the insurance company.

When the accident occurred to Ruschell the act of April 8, 1890 (87 O. L., 161; Section 6986-1, Revised Statutes), was in force, and was as follows:

“No child under the age of sixteen years, shall he employed by any person, firm, or corporation in this state, at employment whereby its life or limb is endangered, or its health is likely to be injured, or its morals may be depraved by such employment.”

The record clearly shows that Arthur Ruschell had not reached the age of sixteen years at the time of the accident. Regardless of the belief of the employers and the representations made by the minor to them, his employment was contrary to this statute, and was not covered by the policy of indemnity. While, as argued by plaintiffs, it is true it would be necessary to show that the employers had knowledge of the non-age of the employe, in order to render them guilty of a misdemeanor in such employment, and subject to the fine and imprisonment provided by Section 6986-2, Revised Statutes, yet such knowledge is not necessary in order to make the employment illegal for the purpose of the suit for personal injuries or under the terms of the indemnity policy in question. Breckenridge v. Reagan, 22 C. C., 71; Braasch v. Mich. Stove Co., 153 Mich., 652; American Car & Fdy. Co. v. Armentraut, 214 Ill., 509; Krutlies v. Bulls Head Coal Co., 249 Pa. St., 162 (L. R. A., 1915F., 1082); DeSoto Coal M. & D. Co. v. Hill, 179 Ala., 186; Inland Steel Co. v. Yedinak, 172 Ind., 423, 87 N. E. Rep., 229; Holland Laundry v. Travelers’ Ins. Co., 152 N. Y. Supp., 92, and Buffalo Steel Co. v. Aetna L. Ins. Co., 136 N. Y. Supp., 977.

A case almost similar in its facts and the questions involved is the case of Aetna Life Ins. Co. v. Tyler Box & Lumber Mfg. Co., 149 S. W. Rep. (Tex. Civ.), 283.

The record in this case fails to show that the plaintiffs were in any way misled to their injury by the conduct of the defendant company in assuming the defense of the Ruschell cases. It shows further that the settlement of those cases was made not by counsel for the insurance company, but by their own counsel; and, regardless of whether or not they had fully understood and agreed to the original conditions under which the insurance company undertook the defense, that the judgments were entered with full understanding is shown by the stipulation agreed upon that the insurance company was at liberty to contest its liability.

Objection is made to rulings of the trial court upon the admission of evidence. It appears that the testimony of Arthur J. and George Ruschell was read from a transcript of their testimony given at the former trial of the case, without any reason for so doing being stated to the court. While the testimony shows that at the time it was given the witnesses were beyond the jurisdiction of the court, six years had intervened, and, in the absence of any statement in proof of nonresidence, we cannot assume its continuance for that length of time. We think, therefore, that it was error in the court to permit the reading of that testimony without proper showing first' made. But there is nothing in this testimony, under the facts as shown and the law as we view it, that would make this admission of such substantial prejudice to the plaintiff in error as to require a reversal.

Upon the record as made this court is of the opinion that it was the duty of the trial court to direct a verdict in favor of the defendants; and, finding no errors to the substantial prejudice of plaintiffs in error, the judgment is therefore affirmed.

Judgment affirmed.

Gorman and Hamilton, JJ., concur.


author: By the Court.

text:
    The State, ex rel. Hogan, Atty. Gen., v. The Hocking Valley Ry. Co. et al.

      Railroad companies■—Tonnage arrangements — Intrastate traffic — Jurisdiction of state courts ■—• Optional exchange of transportation facilities-—Combination and conspiracy in restraint of trade — Ownership of stock in coal company, and in competing and non-competing railroad companies.

    1. Where one railway company is a feeder rather than a competitor of another, there is no legal impediment to the right of the latter to hold the stock of the former.
    2. An agreement providing for the joint control of a railway company by two other railway companies, it being a competitor of one of such companies, and further providing for a tonnage arrangement with reference to shipments arising thereon and for the optional exchange of transportation facilities, is inconsistent with the complete divorcement of competing systems of transportation and is therefore illegal.
    3. Despite the fact that stocks in coal companies and in a competing railway company have been disposed of by a railway company under the supervision of a United States court and pursuant to a decree of suoh court, the state is entitled to have such dissolution made permanent as to intrastate traffic and to have a supervision over the future conduct of the defendants in respect thereto, the judgment of the United States court not assuming to control intrastate traffic.
    (Decided August 22, 1917.)

      In Quo Warranto : Court of Appeals for Franklin county.

      Mr. Timothy S. Hogan and Mr. Joseph McGhee, attorneys general; Mr. Frank Davis, Jr.; Mr. E. C. Morton; Mr. M. A. Daugherty; Messrs. Webber, McCoy & Jones and Mr. R. J. O’Dell, for relator.

      Mr. Lawrence Maxwell; Mr. A. C. Rarick; Messrs. Wilson & Rector and Messrs. Doyle, Lewis, Lewis & Emery, for defendants.
   By the Court.

The state charges the defendants with a combination and conspiracy in restraint of trade in respect to intrastate traffic.

The alleged combination attacked by the state in the present action originated in the Morgan plan of reorganization of The Hocking Valley Railway Company, which plan contemplated, and subsequently embraced, control of the Toledo & Ohio Central, the Kanawha & Michigan, and the Zanesville & Western railway companies. These companies were largely engaged in the transportation of bituminous coal from the Ohio and West Virginia coal fields to the cities and markets of Ohio and to the Great Lakes.

In the process of financial development of this combination there was acquired a controlling stock interest in certain coal mining companies operating the Ohio and West Virginia districts, and the stock of the Hocking Valley Company (which was then the holding company) fell into the hands of what is called the Trunk Line Syndicate, composed of the five trunk lines controlling the transportation of coal from the entire Appalachian mining district into the markets of the middle west.

At this juncture, the state filed a petition in quo warranto in the circuit court of Franklin county, which resulted in a judgment, entered January 18, 1910 (12 C. C, N. S., 49 and 145), ordering a dissolution of the Morgan combination between the Hocking Valley, on the one hand, and the Toledo & Ohio Central, the Kanawha & Michigan, and the Zanesville & Western, on the other; and also ordering a dissolution of the stock-holding connection between The Hocking Valley Railway Company and the various coal mining companies controlling mines along the line of said railway in the Hocking Valley district in the state of Ohio.

Following the final judgment of the circuit court of Franklin county, there was executed what is known as the March 1910 agreement between the Lake Shore and Michigan Southern and the Chesapeake & Ohio railway companies, and acquiesced in by the other railroads forming the Trunk Line Syndicate.

Without going into unnecessary detail, this contract provided for the acquisition by the Lake Shore and Chesapeake & Ohio companies of the stock held by' the five companies composing the Trunk Line Syndicate. It also provided for the transfer of the Hocking Valley stock exclusively to the Chesapeake & Ohio company, and of the Toledo and Ohio Central stock exclusively to the Lake Shore company. The contract further provided for the transfer of a portion of the stock of the Kanawha & Michigan to the Chesapeake & Ohio, and for the trusteeing of the majority of the controlling interest in the Kanawha & Michigan for the joint benefit of the Lake Shore and Chesapeake & Ohio companies.

By this plan the Hocking Valley company was, through stock ownership, practically acquired by the Chesapeake & Ohio company, and by similar means the Lake Shore company practically acquired the Toledo & Ohio Central and the Zanesville & Western companies; while the Kanawha & Michigan, which paralleled the Chesapeake & Ohio in West Virginia and the Hocking Valley in Ohio, and connected with both the Toledo & Ohio Central and the Hocking Valley, was made subject to joint control by the Chesapeake & Ohio and the Lake Shore companies. This contract provided for the disposition and trusteeing of the stocks in the coal companies, which The Hocking Valley Railway Company had been ordered to dispose of by the decree of the Franklin county circuit court.

The contract contained a provision for the joint use of the western division of the Toledo & Ohio Central, and of the Hocking Valley main line, for the transportation of coal cars at the option of either company.

There was a further provision for an arrangement for the distribution of the business of the coal companies, whose bonds had been guaranteed by the Toledo & Ohio Central and the Hocking Valley railway companies, to protect the railway companies upon such guaranty. There was evidently an arrangement for an equal division between the Hocking Valley and the T. & O. C. of the tonnage originating on the K. & M.

Following the March 1910 agreement and the reorganization and operation of the railway and coal companies thereunder, this action was brought.

Subsequently to the bringing of this action, the United States government brought an action in the United States court at Cincinnati to enjoin the various railway companies from carrying out the March 1910 agreement, upon the ground that it and the operation of the railroad companies thereunder was in violation of the federal antitrust act. That action was finally decided in favor of the government, and the defendants were ordered to dispose of their interests in the said coal companies, and the Chesapeake & Ohio was ordered to dispose of its interest in The Kanawha & Michigan Railway Company. This order has been carried out to the approval of the United States court.

At the instance of the attorney general of Ohio, who appeared as amicus curiae, the United States court reserved the question of the corporate power of certain of the railroad companies to hold stock in the other railroad corporations.

The railroad now owned and operated as the Zanesville & Western was probably intended by the original promoters to be an independent competing company for the transportation of bituminous coal. But as now existing, its railroad extends only from Thurston, a small village on the Toledo & Ohio Central, into the coal mining district, and does not reach the coal markets either directly or by any connections independent of the Toledo & Ohio Central.

We have reached the conclusion that the Zanesville & Western is a feeder rather than a competítor of the Toledo & Ohio Central, and, therefore, that there is no legal impediment to the right of the Toledo & Ohio Central or the Lake Shore & Michigan Southern to hold the capital stock of the Zanesville & Western.

The New York Central Railroad Company, the successor, by consolidation, of the Lake Shore Company, was brought in by a supplemental petition, charging among other things that the New York Central company was a competitor of The Toledo & Ohio Central Railway Company.

The question of the right of one railroad company to acquire and hold the stock of another railroad company, under Sections 8683 and 8684, General Code, is now settled by the recent decision of our supreme court in the case of Pollitz et al. v. The Public Utilities Commission of Ohio, 96 Ohio St., 49.

The only condition, therefore, affecting the right of the holding company to acquire the stock of other railroad companies, is that the two companies be kindred and not competing.

We think the evidence shows that the Lake Shore company and the Toledo & Ohio Central company were connected so as to permit the passage of trains from one railroad to the other. The Chesapeake & Ohio was not physically connected with the Hocking Valley at the time this action was brought, or the case tried, but we think that makes no difference in view of the decision in the Pollitz case. We find, as a fact, that The Hocking Valley Railway Company and The Chesapeake & Ohio Railway Company were not competitors for intrastate business. The United States court held, by necessary inference if not directly, that those companies were not competitors for interstate business, and the action of the United States court is the last word upon the subject of interstate business. We therefore follow the action of the United States court in respect to interstate commerce, and find no legal impediment to the Chesapeake & Ohio company holding the stock of the Hocking Valley company, nor do we find that the acquisition and holding of the stock of The Toledo & Ohio Central Railway Company by the Lake Shore & Michigan Southern Railway Company was illegal.

The state contends, and we think correctly, that the March 1910 agreement, and the operation of the railroad companies thereunder, down to the time when the relief granted by the United States district court was put into effect, was not a compliance with the order of the circuit court of Franklin county, but amounted to a continuance of the unlawful combination previously existing.

The March 1910 agreement and the operation of the railroad companies thereunder did not terminate railroad ownership of the stock in the coal mining companies; nor the guaranty of the bonds of such companies and the consequent control over the business of such companies. The provision of the March 1910 agreement for the joint control of The Kanawha & Michigan Railway Company, which was a competing company with both the Chesapeake & Ohio and the Hocking Valley, and the tonnage arrangement with reference to shipments arising thereon, together with the optional exchange of transportation facilities between the Hocking Valley company and the Toledo & Ohio Central company, as to its western division, were inconsistent with the complete divorcement of the Chesapeake & Ohio and the Hocking Valley, and of the Toledo & Ohio Central and the Kanawha & Michigan, as competing systems of transportation.

It would therefore follow that the combination following the March 1910 agreement, and in existence at the time the present action in quo warranto was brought, was illegal and inconsistent with the decree of the Franklin County circuit court.

It is contended, however, that since rendition of judgment by the United States district court, and disposition of the coal company and railway stocks under the approval of said court, this case becomes a moot case and no order can be made or relief granted. In this connection the case of United States v. Hamburg-American Co., 239 U. S., 466, is cited.

We think, upon a consideration of the authorities, that the rule that a court should not decide a moot question does not apply to the present case:

First. Because the question is not entirely moot. This court finding it proper to grant additional relief.

Second. Because the subject of the present action involves intrastate traffic which was not involved in the federal action.

Third. Because the state should be entitled to the benefit of the judgment as to intrastate traffic over which it has exclusive control.

The judgment of the United States district court does not assume to control intrastate traffic, and whether or not the defendants would observe the regulations of the United States district court as to intrastate traffic depends upon their volition and not upon the force and effect of the order of the United States court. See opinion of Donahue, J., in State v. Cox, 87 Ohio St., 313, 335.

It is true that the stocks in the coal companies and The Kanawha & Michigan Railway Company have been actually disposed of under the supervision of the United States district court, but the state is entitled to have the dissolution made permanent as to intrastate traffic and to have a supervision over the future conduct of the defendants in respect thereto.

While some reference was made in the majority opinion of the judges of the United States district court to the optional exchange of facilities between the Hocking Valley and the Toledo & Ohio Central as to its western division, no relief was granted in that court.

We think it is important that the two competing systems, the Chesapeake & Ohio and the Hocking Valley, on the one hand, and the Toledo & Ohio Central and the Kanawha & Michigan, on the other, be completely divorced, and that such optional exchange of facilities is inconsistent, especially in view of their prior relationship and the tendency of these competing companies towards trade restriction.

It therefore follows that there should be a decree ousting the original defendants from the right to own or control the stocks of coal mining companies or to continue the guaranty of bonds of such companies; that the defendants should also be ousted from the right to continue the exchange of facilities between the Hocking Valley and the Toledo & Ohio Central as stipulated in the March 1910 agreement; and that the Chesapeake & Ohio should be ousted from the right to own, control or have an interest in the capital stock of The Kanawha & Michigan Railway Company.

The New York Central Railroad Company was properly made a party and the decree should operate against it as the successor of The Lake Shore & Michigan Southern Railway Company.

The averment of the supplemental petition against The New York Central Railroad Company, to the effect that that company is a competitor with the Toledo & Ohio Central, is in the nature of an original cause of action against the New York Central company.

The chief contention upon this issue is that the Lake Erie, Alliance & Wheeling, operating in mining district No. 8, and now controlled by the New York Central company, is a competitor of the Toledo & Ohio Central company. It is true that the Lake Erie, Alliance & Wheeling company was one of the transportation lines involved in the Morgan plan, and if the original Morgan plan was still in operation, or should be revived, the situation as to the Lake Erie, Alliance & Wheeling might be important; but in view of the relatively small amount of competition possible between the Lake Erie, Alliance & Wheeling and the Toledo & Ohio Central companies, and also in view of the fact that the New York Central did not stipulate as to the evidence brought into the record from the United States court, we think so much of the supplemental petition as is involved under the averments as to competition between the New York Central company and the Toledo & Ohio Central company should be dismissed without prejudice.

Decree of ouster accordingly.

Kunkle, Allread and Ferneding, JJ., concur.


author: Hamilton, J.

text:
    Industrial Commission of Ohio v. Ware.

      Workmen’s compensation —Appeal from industrial commission — Injury inflicted in another state.

    Under the provisions of the Workmen’s Compensation Law the only right of appeal from the decision of the industrial commission is that conferred by the statute, which provides that the appeal must be filed in the common pleas court of the county wherein the injury was inflicted. Where the injury is inflicted in another state, no appeal is provided and the decision of the industrial commission is final.
    (Decided June 18, 1917.)
    Error: Court of Appeals for Hamilton county.

      Mr. J. Ia. Campbell, prosecuting attorney, and Mr. Henry G. Hauck, assistant prosecuting attorney, for plaintiff in error.

      Messrs. Fulford, Shook & Wilby, for defendant in error.
   Hamilton, J.

This case comes into this court on petition in error to the common pleas court of Hamilton county, Ohio.

It had its origin in an application filed with the Industrial Commission of Ohio for compensation under what is known as the Workmen’s Compensation Law, because of the death of one Sam Ware, defendant in error’s husband, an employe of the firm of Platt & Dickinson, who were contributors to the compensation fund.

Ware met his death in the course of his employment, July 30, 1915, in the city of Covington, Kentucky, his employers being brick-work contractors of Cincinnati, Ohio. Lena Ware, wife of the decedent Sam Ware, made claim as the wife and dependent of the said Sam Ware.

Among other facts, it appeared that the decedent Sam Ware and the wife Lena Ware had not lived together for about four and one-half years. The industrial commission denied the right of the said Lena Ware to participate in the compensation fund, and she thereupon, as such claimant, appealed to the common pleas court of Hamilton county, Ohio, where her appeal was tried to the court, a jury having been waived, resulting in a judgment in her favor.

Several questions of error are urged by plaintiffs in error as grounds for reversal, but the controlling question is, Did the common pleas court have jurisdiction to entertain the appeal and hear the cause, it being admitted that the place of the injury was in the state of Kentucky ?

Section 1465-90, General Code (103 O. L., 88), provides as follows:

“The board shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in case the final action of such board denies the right of the claimant to participate at all in s.uch fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right, then the claimant, within thirty (30) days after the notice of the final action of such board, may, by filing his appeal in the common pleas court of the county wherein the injury was inflicted, be entitled to a trial in the ordinary way, and be entitled to a jury if he demands it. In such a proceeding, the prosecuting attorney of the county, without additional compensation, shall represent the state liability board of awards, and he shall be notified by the clerk forthwith of the filing of such appeal. * * * ” •

The only right of appeal from the decision of the industrial commission is contained in this statute, and it can be conferred only by statutory provision. The plain wording of the statute is to the effect that the appeal must be filed “in the common pleas court- of the county wherein the injury was inflicted,” and it being admitted and shown to be the fact that the injury in this case was inflicted in the state of Kentucky it becomes at once apparent that the decision of the board was final.

There being no appeal provided for such a case as the one at bar, the common pleas court erred in entertaining the appeal and rendering a judgment therein; it was without jurisdiction and its proceedings are null and void. It follows that the judgment of the common pleas court must therefore be reversed, and its judgment and proceedings held for naught.

Judgment reversed.

Jones, P. J., and Gorman, J., concur.


author: Shields, J.

text:
    Jones v. State.

      Criminal law — Homicide — Indictment for manslaughter — Assault and battery verdict — Negligent operation of automobile — Charge to jury.

    The isolated fact of death resulting from a collision of automobiles does not determine the verdict upon an indictment charging manslaughter, but the court properly may instruct the jury that conviction may be had for assault and battery as a lesser degree of the offense; especially when the proximate cause of death was not the collision, but, rather, excessive speed and negligent and reckless operation of accused’s automobile caused the collision and injury charged. (State v. Vancak, 90 Ohio St., 211, and State v. Schaeffer 96 Ohio St., 215, distinguished.)
    (Decided October 11, 1917.)
    Error: Court of Appeals for Stark county.

      Messrs. Webber & Turner and Mr. Wendell Herbruck, for plaintiff in error.

      Mr. Frank N. Szveitzer, prosecuting attorney, and Mr. Thos. H. Leahy, assistant prosecuting attorney, for defendant in error.
   Shields, J.

At the September (1916) term of the court of common pleas of Stark county, Ohio, the plaintiff in error was indicted by the grand jury of said county for the crime of manslaughter, and upon trial had the jury returned a verdict of not guilty of manslaughter but guilty of assault and battery. Thereupon a motion was filed to discharge the defendant below from further custody, on the ground that a verdict and judgment of assault and battery did not lie under said indictment, under the evidence in the case, which said motion was by the court overruled, and thereupon the said defendant was sentenced according to law.

It appears that after a petition in error was filed in this court a motion was filed by the defendant in error to strike the same from the files, for the reason that no motion for a new trial, or motion in arrest of judgment, was filed in the court of common pleas after said verdict, and for other reasons therein stated, which said motion was by this court overruled. No cross-petition having been filed on behalf of the defendant in error, the sole question presented on the record for consideration is, therefore, the question made by the motion of the plaintiff in error to discharge him after verdict, as stated.

We do not feel called upon to review all the evidence in this case, nor is it necessary for a solution of the question presented, except to bear in mind such portions of it as have been referred to and regarded as material by counsel; for the contention made involves mainly, if not wholly, a question of law.

It appears that on August 29, 1916, the plaintiff in error, Joseph W. Jones, owned what is termed a seven-passenger Buick automobile, and that in the afternoon of said day while driving said automobile on the streets of the city of Canton he invited two girls, Gladys Crawford and Fay Carnes, one of whom he had met before that time and the other of whom was unknown to him, to take a ride, which invitation was accepted by them. That in returning from Massillon to Canton in said automobile on the Canton-Massillon road, going eastwardly, said automobile was driven by the said Gladys Crawford and the plaintiff in error, who was riding in the front seat of said automobile by the side of the said Gladys Crawford; that at the same time on said day one B. L. Thomas, was driving westwardly on said road a Dodge automobile, with his wife and son and one Thomas Ellis, his father-in-law, therein; that at a point near to what is called Calvary Cemetery on said road said two automobiles traveling in opposite directions collided when the plaintiff in error was assisting the said Gladys Crawford in operating his said automobile; that at the time of said collision the said Thomas was driving his car at the rate of about fifteen miles per hour and the plaintiff in error was driving his said automobile greatly in excess of said rate of speed, and in violation of Sections 12603 and 12604, General Code, and that as a result of said collision the wife and son of said Thomas, and the said Thomas Ellis, were seriously injured, and that as a result of said collision and the injuries received by him through the alleged negligence, carelessness, and recklessness of the plaintiff in error the said Thomas Ellis on said day died.

Said Sections 12603 and 12604, General Code, were enacted by the legislature in the interest of public safety on public highways, and it requires no close analysis of the evidence in this record to show that the automobile of the plaintiff in error at the time of said accident was being operated in violation of the provisions of said sections. It appears that the speed said automobile was traveling at said time was not only unreasonable and unlawful but that said automobile was being recklessly driven, hence it is laid down as a wholesome and sound proposition of law that “one who is engaged in the performance of an unlawful act must take the criminal consequences of whatever happens to third persons as a result of that act.” The necessity for the application and enforcement of this rule for the protection of life and limb is apparent when applied to the modern mode of travel upon the public highways and elsewhere. Automobiles may be employed as a means of travel, and they have become recognized as the popular means of travel upon the public highways and elsewhere, but like all other agencies thus employed, proper care and discretion should be exercised in their use. It requires no sophistry to persuade us that these high-powered machines were never intended to render life and limb secure upon the public highways, when under the control of an inexperienced 'novice, nor that the safety of others, perhaps traveling upon the same highway in an opposite direction, is rendered any more secure thereby. Regard for the safety of human life requires that automobiles when traveling upon the public highway, where people have the right to travel in their own way, should be under the control of persons capable of managing them and that they should be held to the observance of speed not in excess of that prescribed by the sections referred to. Commenting upon the need and propriety of legislation to be found in these two sections of our statutes, and of the urgent necessity of proper protection being afforded to life and limb against the indiscriminate and reckless operation of automobiles in the public highways and elsewhere, Judge Wanamaker, speaking for the court, in the case of State v. Schaeffer, 96 Ohio St., 215, says at page 233:

“The first year for which official statistics are available as to the number of automobiles, operated on the public highways of this state is 1908, when 18,000 were in operation. To-day the total number is over 300,000. If there were need for some such statute in 1908, there is more than ten times the need of it to-day.
“Statisticians have calculated that when you vest average men with large power, you make either a tyrant or fool out of ten' per cent, of them. The estimate is very conservative. Indeed, if it err at all, it is upon the ground that it is too low, and it may well be doubted if the ratio is appreciably reduced in the case of putting 300,000 automobiles, with their tremendous speed, power and impact, under the direction and control, or lack thereof, of the usual drivers. Ten per cent, of the 300,000 would make 30,000 that are in the hands of tyrants, fools, incompetents, speed-maniacs, that are a constant menace and danger to the safe and conservative 90 per cent, of automobile drivers, to other vehicle drivers, and to the millions of foot passengers.
“ ‘Safety First/ must not be sacrificed for ‘speed first/
“The daily press is full of hairbreadth escapes and casualties, from slight injuries on the one hand to instant death on the other. It may well be said, ‘that the railroad locomotive has killed its hundreds, but the automobile is killing its thousands/
“The day has long been here when the authorities should exercise every power under every law of the state to protect the safety of the public, its life, its limb; and in order to meet every possible situation of danger, some such general comprehensive and elastic statute as Section 12603 is absolutely necessary.
“The careful, conservative driver need have no fear of it. The reckless, wanton speed-maniac needs to be kept in fear of it. The life of the humblest citizen must be placed above the gratification of the motor-maniac who would turn the public highways into a race course. Mere civil liabilities are not sufficient to protect the public. Five dollars fine and costs is a joke in most cases.
“Some statutes have undertaken to fix a rate of speed which would be prima facie dangerous, but a rate of speed dangerous in one situation would be quite safe in another situation, and if the rate of speed were definitely fixed, naturally it would have to be the minimum speed at which cars might be safely driven, because that speed would have to be a safeguard against every possible situation which would be perilous, even at a speed of six or eight miles an hour.
“There is no place in all the public grounds and parks where a situation is not constantly changing from comparatively no traffic to a most congested traffic; from no foot travelers to a throng of them; from open and clear intersections, private drives and street crossings, to those that are crowded; from free and unobstructed streets to streets filled with crowds of foot travelers and others getting off and on street cars and other vehicles. In order to meet these varying situations and impose upon the automobilist the duty of anticipating them and guarding against the dangers that arise out of them, this statute was evidently passed in the interests of the public safety in a public highway.”

Here, as claimed by the state, and as. we think the evidence shows, the plaintiff in error was engaged in an unlawful act, prohibited by the statute law of Ohio, at the time of said collision, when Thomas Ellis was injured, from the effects of which he died. His unlawful act was the violation of said sections. He was afterwards indicted for manslaughter, and found guilty of assault and battery only, and sentenced therefor. It is contended in his behalf that the trial court erred in instructing the jury that they were authorized to return a verdict of assault and battery, if the facts warranted such verdict, and, further, in overruling the motion for his discharge from further custody after said verdict, and that the judgment and sentence upon said verdict of the jury for assault and battery is therefore a nullity. Error is prosecuted to reverse said judgment.

Under our statutes criminal homicide consists of different degrees, and murder in either the first or second degree may be reduced to manslaughter, or even to an assault and battery or an assault, in a proper case, upon the theory that the lesser is included in the greater of the crimes charged. This theory at an early day foúnd its way into the criminal jurisprudence of this country, and has since been generally if not universally recognized and adopted as a sound and safe principle to apply in the administration of the criminal law. Citation of authorities is not necessary to show that in this state it has been so recognized and repeatedly dedared by the courts. While admitting that the principle is sound as applied to cases generally,' it is urged on the part of counsel for the plaintiff in error that under the evidence in this case the crime here committed, if any was committed, was manslaughter, and that only, and that the element of assault and battery was entirely foreign to the case. It appears that no objection was made or special exception taken to the charge of the trial court at the time said charge was given to the jury, except a general one, including an exception to the refusal of the court to give certain special requests submitted on behalf of the defendant below before argument. In passing, and by way of referring to the contention of counsel, it may be said that if the deliberation of the jury had been controlled by the logic of the evidence and the charge of the court, another and different verdict might have been returned by the jury, but we are admonished by the repeated holdings of our supreme court that the jury are the sole judges of the facts, when a case is presented to them, under proper instructions by the court. Not that it necessarily follows that the jury are always right and that their action may not be reviewed and corrected by the court in a proper case, but it goes unchallenged that their latitude of inquiry and judgment upon the facts, under the issues raised, is not circumscribed by the limitations of any rule. True, the issue raised should be kept in mind and not lost sight of by the jury when considering the evidence, and a verdict unsupported by any evidence should not be allowed to stand; but in a case “where the evidence justifies it,” with the jury acting under express instructions of the trial court, will it be said that the action of the jury in returning a verdict of guilty of assault and battery in a manslaughter case should be disregarded and ignored ? Scarcely, in view of past precedents resting upon adjudications crystallized into recognized law since the organization of courts. There may be cases where courts have refused to disturb verdicts because the character of the case forbade the submission of a lesser degree than that charged in an indictment, but not so, under the investigation we have made, when without objection a lesser degree, is expressly and properly authorized by the charge of the trial court.

Section 13692 provides that “When the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree thereof.”

As if acting under the authority conferred by this statute, the trial court, among other things, charged the jury as follows:

“So that, if you fail to find from the evidence beyond the existence of a reasonable doubt that the defendant is guilt of the crime of manslaughter, you may then go forward and find whether or not the'evidence satisfies you beyond the existence of a reasonable doubt that defendant is guilty of the offense of assault and battery, or of assault. Therefore, if you find beyond the existence of a reasonable doubt that the defendant, Joseph W. Jones, at the county of Stark and in the state of Ohio, on or about the 29th day of August, 1916, unlawfully committed an assault and battery upon Thomas Ellis, then and there being, then you should return a verdict of guilty of the offense of an assault and battery. If the evidence fails .to so show, then you should return a verdict for defendant, to-wit, not guilty of an assault and battery. If the evidence fails to show beyond a reasonable doubt that defendant on or about the date named in the indictment committed unlawfully an assault upon Thomas Ellis, then and there being, then you should return a verdict of guilty of assault. If you fail to so find, your verdict should be not guilty of assault. If the evidence fails to satisfy you beyond the existence of a reasonable doubt of the offense of manslaughter, assault and battery, or assault, your verdict should be for the defendant, to-wit, not guilty. * * *
“The indictment for manslaughter includes within its terms the lesser offense of assault and battery, and under Sec. 13692 G. C. of Ohio, the jury may find a defendant guilty of such inferior and lesser offense, if the evidence warrants, and only warrants such conviction. But notwithstanding such right of the jury, it is the duty of the jury to receive the law as given to it by the court, and if the facts proved are such as to make the offense manslaughter as hereinbefore defined and explained to you and warrants a conviction thereof under these instructions, it is the sworn duty of the jury to make such finding, without reference to their power to find a lesser offense to which they might be influenced, by something extraneous to the real facts as found by them. The law does not include these lesser offenses of assault and battery and assault in order to relieve the jury from the performance of what might otherwise be a disagreeable or unpleasant duty, or to reach a compromise verdict and enable them to evade their sworn duty by finding a lesser offense simply because they may, but it is held proper so that there may not be .a failure of justice if the evidence did not sustain the offense charged in the indictment, but would support a finding of guilty of a lesser offense than the one charged in the indictment.”

Here the jury was duly cautioned against losing sight of the material issue in the case and of their obligations as sworn jurors to fearlessly meet and discharge duty. That the admonition thus given was both direct and pertinent admits of no question, but how the facts in the case were regarded and treated by the jury in the jury room we do not know, except as shown by the verdict. It cannot be said that the jury acted contrary to the instructions of the court, if in their judgment a verdict of assault and battery was warranted by the facts, because the court expressly so instructed them. But counsel on behalf of the plaintiff in error argue that the death of Ellis, was caused by the collision, and therefore the crime was manslaughter, if anything, relying in support of their contention on the cases of State v. Vancak, 90 Ohio St., 211, and State v. Schaeffer, 96 Ohio St., 215. It appears that the first case mentioned involved the defense of self-defense. Logically and legally the defendant in that case was either guilty of the crime charged— manslaughter—or not guilty of any other crime. There was no pretense of any claim made but that death resulted from the blow struck, and indeed the killing was admitted by the defendant. The rule of law announced in that case is far from being applicable to the facts in the case before us for review, in our judgment. In that case there was no issue raised as to the cause of death. In the Schaeffer case, too, there the killing of the child was admitted, but the defendant contended that he was not criminally liable because he was not violating the speed ordinance at the time; unlike the case before us, where the plaintiff in error claims that the death of Ellis was caused by the unlawful conduct of Thomas in not observing the rules of the road, which was denied by the state. While the plaintiff in error denied that his car was being driven recklessly or in excess of a lawful rate of speed at the time of the collision, the state contends that it was so driven. So here was an issue and here was a conflict of evidence on the question as to how the collision occurred and who was responsible for it—a question of fact to be determined by the jury. In the cases cited the killing and the facts ■ and circumstances leading up to the death were admitted, but not so here. While the fact that death was the result of the collision is admitted, the facts causing the collision are disputed. The isolated fact of death resulting from the collision does not answer or satisfy the question at issue, but the question remains, who and what caused the collision? Leaving out the evidence that after the collision Ellis’ body was placed on the side of the highway and there suffered to remain until it was placed in an automobile, and later transferred to an ambulance to be conveyed to the Massillon Hospital several miles distant, and that death resulted en route, leaving out these circumstances, which were before the jury and the effect of which was for the determination of the j’ury, it would seem that the finding of the jury was referable to the manner of driving the automobile of the plaintiff in error, and its speed at the time of said collision.

In his behalf counsel for plaintiff in error also refer to the case of Marts v. State, 26 Ohio St., 162. In this cáse the defense was self-defense, and it appears that the defendant requested the trial court to instruct the jury that they might return a verdict of assault and battery, if the facts warranted it, which request was refused; but the supreme court says, at page 168, “that the court should have instructed the jury, as requested, that it was competent for them, if, in their opinion, the evidence justified it, to find.the defendant guilty of assault and battery only, and that the refusal of the court to give such an instruction was error to the prejudice of the defendant.”

While juries sometimes differ in their judgments, and reach different conclusions upon the same state of facts, as do courts, nevertheless, whatever the judgment of this court of the merits of this case and of the verdict of the jury, we are not unmindful that facts are the exclusive property of the jury to deal with and that the constitutional right of trial by jury is still “the great safeguard of life, liberty and property.” Discussing the institution of trial by jury, Judge Ranney fittingly refers to it as “the glory of the English law,” and as an important and integral part of our system of jurisprudence. In Gibbs v. Girard, 88 Ohio St., 34, 47, Judge Wanamaker also says:

“So long as the trial by jury is a part of our system of jurisprudence its constitutional integrity and importance should be jealously safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our constitutions,”

For the reasons stated, we think the trial court was authorized to submit to the jury the question whether or not the defendant below was guilty of manslaughter or assault and battery, under the evidence in the case, and in so instructing the jury said court did not err, nor did said court err in overruling the motion to discharge the said Jones from further custody after said verdict of assault and battery was rendered.

While the requests made before argument to the jury were not argued to this court, nor even referred to, it is sufficient to say that we have examined all the grounds, of error assigned, and, keeping in mind the uniform rule of the courts in this state that judgments of conviction are not to be set aside except “in cases where the grounds of error are clear and the error manifestly prejudicial,” we find no such prejudicial error in the record as to require a reversal of the judgment of the court of common pleas, and said judgment of said court will therefore be affirmed and said cause remanded to said court for execution.

Judgment affirmed.

Powell and Houck, JJ., concur.


author: Conn, J.

text:
    Canaday, Appellant, v. Hayden, Appellee. Mills, Appellant, v. Hayden, Appellee.
    (Nos. 4175 and 4176
    — Decided February 10, 1947.)

      Messrs. Reslip & Gibson, for appellants.

      Mr. Wm. A. Finn, for appellee. -
   Conn, J.

These cases come to this court on appeal by plaintiffs on questions of law from judgments entered by the Court of Common Pleas. The first action sought to recover damages for bodily injury and injury to property growing out of a collision between the motor vehicle of plaintiff Canaday, at the time operated by him, and the motor vehicle of the defendant; and the second, to recover damages alleged to have been sustained by plaintiff Mills, who was a passenger riding • in Canaday’s automobile. The collision occurred on the night of March 10, 1943, on route 20, a highway in Lucas county, Ohio.

. The petitions were each filed on May 8, 1945, and summons thereon issued the same day pursuant to Section 6308-1 et seq., General Code, directed, to the Secretary of State.

It further appears from the praecipe that defendant is a nonresident and that the last known address of defendant was “1421 W. Front street, Monroe, Mich.” The petitions were each subsequently amended by interlineation by adding the following allegation, to wit: 4 4 Since the time hereinafter mentioned defendant has been out of the state of Ohio.”

The defendant interposed demurrers to the petitions on the ground that it appears on the face of each petition that the causes of action set forth therein did not accrue within two years next prior to the commencement of the actions. The demurrers were sustained and the petitions dismissed, it not appearing that any application was made by plaintiff to plead further.

'The petitions did not contain an allegation, that the defendant was a nonresident of the state at the time of the collision, but service of summons was obtained pursuant to statutory authority in cases of this character, wherein it appeared defendant was a nonresident, and the cases were presented here as if the petitions contained appropriate allegations of non-residence.

The question presented centers on the construction and application of certain related sections of the General Code as follows:

Service upon nonresidents:

Section 6308-1. “Any nonresident of this state, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle, or of having the same operated, within the state of Ohio, or any resident of this state, being the licensed operator or owner of any motor vehicle under the laws of this state, who shall subsequently become a nonresident or shall conceal his whereabouts, shall, by such acceptance or licensure, as the case may be, and by the operation of such motor vehicle within the state of Ohio, make and. constitute the Secretary of State of the state of Ohio his, her, or their agent for the service of -process in any civil suit or proceeding instituted in the courts of the state of Ohio against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within the state in which such motor vehicle is involved.”

Limitation of Actions:

Section 11224-1. “An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.”

Section 11228. “When a cause of action accrues against a person, if he is out of the state, or has absconded, or conceals himself, the period of limitation for the commencement of the action as provided in this chapter, shall not begin to run until he comes into the state or while he is so absconded or' concealed. After the cause of action accrues if he departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought. ’ ’

It is contended by the plaintiffs in the respective actions that Section 6308-1 et seq., General Code, providing for service on nonresident defendants, are remedial and should be liberally construed and if. the Legislature had intended that a cause of action against a nonresident- defendant in an. action of this character should be brought within a specific period of time, it would have so provided.

It is further contended that if the action must be brought within the time limited by the provisions of the Code on “limitation of actions,” then'such provisions of limitation are tolled by the saving clause in Section 11228, General Code.

It is a fundamental rule of statutory construction that statutes which relate to the same subject matter or the same object-or purpose to be accomplished are in pari materia and are construed together1. 37 Ohio Jurisprudence, 599, 602, Sections 332, 333. i

However, this doctrine of statutory construction is subject to the intention of the Legislature and the express provisions of the statutes under consideration:

Section 6308-1, General Code, and related sections, providing for substituted service on nonresidents, are found in the Motor Vehicle Act of Ohio. These provisions of the General Code have a limited field of operation and apply to nonresident operators or owners of motor vehicles while operating same within the state of Ohio. The concept of nonresidence of defendant is a central fact aronnd which the statute is operative.

Oases within the provision of Section 11228, General Code, known as the saving clause, are suspended from the operation of the statutes of limitation. The terms of this statute imply residence of the party defendant against whom a claim is asserted. The language of this statute — such as “if he is out of the state,” “has absconded,” “while he is so absconded,” “if he departs from the state, ’ ’ etc., when or after the cause of action accrues — implies residence of the party against whom the action is brought. Here the concept of residence of the defendant is the central fact and residence of defendant within the state is coincidental with his absence from the state.

In the absence of express provision extending the terms of Section 11228, General Code, to include the limited factual situation defined in Section 6308-1, General Code, it would have no application. In other words, the rule in pari materia is not applicable where the terms of the statute are clear and the intention of the Legislature is manifest. 37 Ohio Jurisprudence, 010, Section 336.

It appears that a majority of the states adhere to the rule that general statutes of limitation are not tolled by reason of the nonresidence of defendant or his absence from the state as such, and that the statute continues to run during such nonresidence or absence. 94 A. L. R., 485; 119 A. L. R., 859, and cases cited.

The leading cases holding the contrary or minority view appear to be: Bode v. Flynn, 213 Wis., 509, 252 N. W., 284, 94 A. L. R., 480; Maguire v. Yellow Taxicab Corp., 253 App. Div., 249, 1 N. Y. Supp. (2d), 749; Gotheiner v. Lenihan, 20 N. J. Misc., 119, 25 A. (2d), 430.

We observe that the provisions of the respective saving clauses staying the statute of limitations in the states of Wisconsin, New York and New Jersey do not parallel the Ohio statute in one or more particulars.. Section 330.30, Wisconsin Statutes; Section 19, Civil Practice Act of New York; Section 2:24-7, Revised Statutes of New Jersey.

The difference in the language of the statutes in-those states as compared with the Ohio statute may account in part for the conclusions reached by the-courts.

By virtue of the statute providing for substituted: service, plaintiffs had the right to bring their actions, at any time within two years. Absence from the state-would not in any manner prejudice this right and such absence should not suspend the running of the statute.

The object and purpose of the statutes of limitation» are to encourage diligence in the enforcement of demands and the speedy adjudication of the rights of parties. They are statutes of repose and are enacted to prevent the assertion of stale claims.

We reach the conclusion that in these cases Section 11228, General Code, does not toll the limitation provided for in Section 11224-1, General Code. This conclusion appears to be consistent with the recognized purpose of the statutes of limitation and the rights of the parties.

Judgments affirmed.

Stuart and Carpenter, JJ., concur.