text:
    INJURY TO EMPLOYE FROM EXPLOSION|OF;SPOUT CARRYING MOLTEN METAL.
    Circuit Court of Franklin County.
    William J. Stubbins v. The Buckeye Steel Castings Company.
    Decided, February 13, 1912.

      Negligence — Master and Servant — Communication of Orders Through Another Servant — Safe Place to Worlc — Rislc Due to Negligence oí Master — Exercise by Servant of Judgment in an Emergency^-Section

    1. A master is not relieved from responsibility for injury to a servant ■by reason of the fact that the order to do the .thing winch, resulted in the injury was not received by the servant direct from the foreman, out was communicated to him through another employe.
    2. Under the provisions of Section 6242, General Code, it is the duty of an employer to make safe tne appliances and the place where the work is carried on, and the responsibility for failure so to do can not be shifted to .the shoulders of employes.
    8. Where, in a sudden emergency requiring an exercise of judgment on the part of an employe, he decides to obey a special order of his foreman, the question whether the judgment so exercised was such as prudent and careful persons would be likely to exercise under similar circumstances, is one for submission to the jury.

      Thomas E. Poiuell, for plaintiff in error.

      Allen L. Thurman, for defendant in error.
    Allread, J.; Dustin, J., and Ferneding, J., concur.
   William J. Stubbins brought suit for personal injury and was non-suited at the close of his testimony.

The negligence charged against the defendant is the failure to have the fire clay spout and the mud joint, employed to convey molten metal from the furnace to the ladle, thoroughly dried before use.

The evidence shows that Stubbins was employed as second furnace helper and put to work under a foreman. It was the duty of Stubbins and the other helpers upon order from the foreman, to tap the furnace containing the molten iron, and then, after waiting until a portion of the ruetal was in the ladle and upon an order or signal from the foreman, to put in the stock of manganese and silicon. This process from the time the furnace was tapped until the .metal was all in the ladle usually occupied about two minutes.

The evidence tended to show that Stubbins belonged to the night shift, came on duty about 6 p. m., and was at once ordered to help tap the furnace, and then a little later to put in the stock of manganese and silicon. The spout was prepared by the day shift and put in place and connected by the mud joint. The workmen were delayed by the operators of the crane and the spout and mud joint were not completed until late in the afternoon and too late to be thoroughly dried out.

It does not appear that Stubbins knew of the defective condition at the time he went on duty. The testimony shows that the presence of dampness in the mud joint and spout will generate steam as the molten metal passes, causing explosion. Plaintiff testifies that he was experienced in the business and knew the dangers connected therewith.

Plaintiff testifies that when the furnace was'tapped and the molten iron first struck the mud joint, there was a puff of steam and flame and that this continued, throwing out sparks and particles of metal as the molten mass passed down the spout. He and a fellow helper, to-wit, Harry Kirby, testify that there was a great puff of steam and-flame that went up to the roof, but the plaintiff is not clear whether this occurred at the start or after he had gone down to put in the stock. The plaintiff also testifies that after the furnace was tapped he took his position some ten feet distant from the spout and in a place of safety. He awaited orders from the foreman. He saw the steam and flame when the metal first struck the spout. Plaintiff testifies that in a few seconds, or perhaps a minute, after the furnace was tapped, an order was received from the foreman to put in the stock, and that in pursuance of this order he went down and was in the act of putting in the stock when he was injured by the flame and flying particles of metal. Kirby, a fellow helper, testifies that the order was received from the foreman but subsequently qualifies this bj*’saying that the order was given to the helper on the other side of the spout and that the witness and Stubbins received the order from those workmen. He indicates, however, that the order was intended and regarded as an order to all the helpers. We do not think, therefore, that it makes any material difference whether the order was direct or received through the other workmen.

The fact that the fire clay lining of the spout and the mud joint connection was prepared by fellow-servants does not in our opinion relieve the master. Under Section 6242, General Code, the duty to make the place and appliances reasonably safe rested upon the master and could not be delegated.

Counsel for defendant in error insist that the apparent and obvious danger of complying with the second order of the foreman raises such an inference of contributory negligence as to bar recovery. Citing B. & O. R. R. Co. v. McClellan, 69 O. S., 142. They point particularly to the testimony of the plaintiff as to the indications of danger when the molten metal first came upon the mud joint and spout and insist that a reasonably prudent man would under those circumstances have refused to execute the order. In partial explanation of the plaintiff’s course, he testifies that there is often more or less steam and flame when the molten iron first strikes the mud joint and that this of itself did not necessarily indicate real danger. There is, however, no doubt from the actual situation appearing in evidence but that the apparent danger was of such a character as to constitute contributory negligence, except for the influence of the special order.

The principle governing in the case of a special order from a superior servant is laid down in the case of The Van Duzen Gas & Gasoline Engine Company v. Schelies, 61 O. S., 298, in the opinion as follows:

‘ ‘ There is much reason in the rule that allows a favorable construction to be placed on the act of the servant done in obedience to the order of his superior, though involving danger. Obedience to orders given by a master becomes a habit with the servant. He obeys without much questioning the prudence of the order. It is expected that he will do so, and without such obedience the business of the inasteu*eould not be successfully conducted. It is then both reasonable and proper that the master should be held to a reasonable responsibility for what he orders his servants to do; and the conduct of a servant in obeying an order, under such circumstances, should not be too closely criticised by courts 'in administering the law. Whilst the law will not excuse the servant, where the thing ordered is plainly and manifestly perilous, it will do so where a man of ordinary prudence and care would, under the circumstances, have obeyed the order, although involving danger. A servant has the right, and is expected, to rely somewhat on the superior knowledge and skill of one placed in authority over him.”

Counsel for defendant seek to differentiate the Van Duzen case from the one at bar by the fact that the servant there had at first objected to the danger, also by the fact that the servant had performed the work on former occasions with safety, and also that the danger there was less obvious and apparent than here. A careful reading of the syllabus and opinion in the case cited does not indicate that these facts are controlling. The whole question is one for the jury. This is clearly indicated by the first, second and third syllabi. In the case of Gas & Electric Co. v. Johnson, 76 O. S., 119, the Van Duzen ease is distinguished and held not to apply to the case of an experienced employe in respect to the ordinary risks of his employment, although the injury resulted by reason of .an insufficient crew. The risk incident to the insufficiency of the crew it was held was assumed by the plaintiff in accepting and continuing the employment.

The present case does not, however, fall within the limitation of the distinction, but is controlled in our opinion by the original case.

The servant here had no knowledge of the defective condition of the spout and mud joint. He had a right to presume that the master had done his duty and to act upon that presumption. Stubbins came on duty and was at once ordered to tap the furnace. This he did and awaited further orders. He was not bound to suspect and did not in fact suspect the danger. The risk was not incident to the ordinary and careful management of the business of the master but was due to a latent defect arising from the negligence of the master and was not therefore one assumed by the servant.

The first intimation or suspicion of danger upon the part of the plaintiff was the issuing of steam and flame when the metal first struck the mud joint and spout. In considering the circumstances, it must be noted that up to this point Stubbins was in nowise negligent and that the defect was due to the negligence of the defendant and was within the defendant’s knowledge. It was, therefore, a sudden emergency, and the plaintiff was called upon to exercise judgment. He chose to obey the special order of the foreman. The question whether the judgment so exercised was such as prudent and careful persons in the same situation are accustomed to exercise was one for the jury. Pennsylvania R. R. Co. v. Snyder, 55 O. S., 343.

We are of opinion, therefore, that the court erred in directing the non-suit.

Judgment reversed and cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    ACTION FOR. RECOVERY OF SOLDIERS’ BOUNTY.
    Circuit Court of Lake County.
    State of Ohio, ex rel Wm. Snyder, v. Horace Abbey et al; and State of Ohio, ex rel John C. Bellman, v. Horace Abbey et al.
    Decided, September Term, 1911.

      Military Affairs — Provision for Bounties for Re-enlisted Veteran Volunteers — Mandamus to Compel Payment of — Section 3107-1, Revised Statutes.

    1. Under favor of the proviso to Section 3107, Bates’ Statutes, no presumption of payment of the bounty for re-enlisted veteran volunteer soldiers provided for in that section is raised by lapse of time in making application for the same, nor does the delay of the party entitled to such bounty in making demand therefor make a case of stale equity.
    2. The statute of limitations does not apply.

      3. The interest on sucb bounty should be computed from the date of making the demand.

      Kelly & Ranch and Alvord <& Blakely, for relator.

      Homer Harper, contra.
    Norris, J.;, Pollock, J., and Metcalf, J., concur.
   Tbe eases of The State of Ohio, on relation of William Snyder, against Horace Abbey et al, trustees of Leroy township, and the State of Ohio, on relation of John C. Bellman, against the same parties, were submitted together; the petitions in each of the cases are identical and the cases involve the same facts.

The relators, in their petitions, for their cause of action against the defendants say that in July, 1861, they duly enlisted in the 39th Regiment Ohio Volunteer Infantry for the term of three years; that on the 22d day of December, 1863, while in the field and at Prospect, Tennessee, they reinlisted, ¡and that they were credited on their reinlistmemfc to Leroy township, in this county; that by virtue of such reinlistment under the laws of Ohio they are each entitled, or were entitled, at that time, to a bounty of one hundred dollars from Leroy township, and they allege that they have never received that bounty, and that they have never received a bond in lieu thereof, which is said to be provided for by statute that the trustees might issue for the payment of the money, and they ask for a writ of mandamus requiring the trustees of this township to pay them the one hundred dollars or instead thereof issue a bond for that 'amount payable within one year.

The defendants for answer admit they are the trustees, and deny the other allegations of the petition, and further, by way of answer allege a payment of this hundred dollars, and set out the manner in which they claim it was paid; that is, that they paid $1,700 for seventeen men by the hand of William T. Shepherd, through the Adjutant General’s office of this state, and said Shepherd received a receipt now on file in the Adjutant General’s office for said $1,700, and that each of these relators got one hundred dollars of this money; and for a second defense they say the writ ought not to be allowed because the statute under wbieb the relators claim payment is in conflict witb the Constitution of the state of Ohio.

Testimony is offered by the relators which clearly sustains the allegations of their petitions, that they did enlist in the 39th Regiment of Ohio Volunteer Infantry in July, 1861, and served until 1863, and at Prospect, Tenn., they reinlisted in the 39th Ohio Veteran Volunteer Infantry and served until the close of the war, in July, 1865; and they each testify under oath that they never have received any bounty for reinlistment from Leroy township or from any other Section of the state.

A receipt is offered in evidence by the defendant coming from the Adjutant General’s office in connection with the seventeen men and a certificate showing the muster roll of these men, which is in words as follows:

“$1,700. Received of the trustees of Leroy township, Lake county, Eighteenth District, Ohio, per William D. Shepherd, the sum of seventeen hundred dollars ($1,700) as township bounty, to be equally divided amongst the above named veteran volunteers. ’ ’

And above, on this page, are the names of seventeen men, stating that they enlisted and reinlisted in 1863, and among these names are William Snyder and John C. Bellman; and it is claimed in connection with this receipt by the defendant that by virtue of the long lapse of time from 1863 to 1905 when the first demand was made by the relators for this bounty, that such a presumption should arise as to overcome the testimony of the relators that they were not paid, but the court ought to find that now, after the lapse of this length of time, that they ought not to have the relief prayed for.

Counsel for both sides cite a case in the 32d O. S., the case of Chinn v. Trustees, at page 236. The first proposition of the syllabus is that, ‘ ‘ The limitation of the code of civil procedure as to the time of commencing civil actions are applicable as a bar only to suits comprehended within the civil action of the code,” holding that there is no limitation in the statute as to mandamus. But they go on furthér and say that the court may in granting or refusing to grant the writ, consider the lapse of time before the commencement of the proceedings. And in discussing it, Judge Scott says that the court in determining the right of the relator to have such relief, should consider the lapse of time and whether any other intervening equities occurred, if the parties had so changed position that the granting of that particular relief at that time would be unjust.

And it is urged here that from this long lapse of time, that there is no equity in this application and that we ought to refuse the relief.

What the court might consider, if this case was governed by the ordinary rules of law, we have not determined, but this ease comes under an entirely different provision of law.

The statute referred to, Bates’ last statutes, 3107-1, providing for the payment of such bounties, contains in part the following provisions:

“The commissioners of the several counties, the trustees of the several townships, and the city council of the several cities of this state, are hereby authorized and required to issue to each re-enlisted veteran volunteer who has heretofore been credited as shown by the muster and descriptive rolls or otherwise, upon the quota of such county, township, or city, or any ward of such city, under any requisition of the president of the United States for volunteers during the late rebellion, and who has not received any local bounty upon said enlistment, a warrant for the sum of one hundred dollars, or a bond for a like sum bearing six per cent, interest, redeemable at the pleasure of such commissioners, trustees, city council, one year after the date thereof.”

And then goes on and provides in what manner they shall be credited; and further provides that if they have received any such sum or if they have received a part of it, that shall be credited on his one hundred dollars; but if they have not received any such bounty for such reinlistment, then they shall be entitled to it; and then contains in closing, this proviso;

‘ ‘ Provided that this act shall not be construed so as to allow any such reinlisted veteran volunteer who has already received the bounty provided for by the act to which this is amendatory, or who has received one hundred dollars bounty from the state or any county, township, or city under any prior act; nor shall lapse of time or state equities (and I think this court once beforé held that this is a misprint and should be ‘stale equities,’ which it should be) be set up as a defense to any claim made under this act, or of any act to which this is' amendatory, or any act relating to this subject, and where said trustees of townships, city council or county commissioners have not issued said bonds, certificate or promise in writing to such reinlisted veteran volunteer, they are hereby required to do so.”

Now what effect shall the court give to that statute except to give it the effect required by the reading thereof — that lapse of time shall have no effect upon cases of this kind, nor shall stale equities affect cases'of this kind; so that if we are to give this language effect, it matters not how long a soldier may have waited before applying for this bounty. The only question before the court is whether he comes under the provision of this act; the only question for the court to determine is whether or not he has received it; and in considering the evidence as to whether or not he has received it, under this act we are' required to treat that testimony as though there had been no long lapse of time, as though he had applied for it right after he was entitled to it.

To give this act any effect whatever, we must treat the testimony, we must treat the whole case as though there was no lapse of time or stale equities in the case. It was evidently the purpose of the Legislature, in this act, that soldiers applying for this bounty which they were entitled to in the war, shall have different consideration in the courts than in applying for other and different relief. I think that is the manifest intention of this act, and in considering that in connection with this testimony, we have no difficulty in arriving at a conclusion.

The only question of fact in the case is whether these relators have been paid this one hundred dollars bounty. It is to be borne in mind further, in considering this testimony, that these men lived in Cincinnati; they enlisted in Cincinnati, both of them; I think one of them resided perhaps not in Cincinnati but outside of that city. So far as the testimony shows they were never in this county, and they both testify that they did not know to what county they had been credited; and at least one of them, and I think both, say that while they knew they were entitled to government bounty, as they called it, it does not appear by the testimony that they knew that they were entitled to one hundred dollars from Leroy township. One of them, I think Mr. Snyder, testifies that he had his claim in the hands of a comrade, Mr. Burner, twenty-five years ago, who did perhaps make some effort to collect it without suit, but never succeeded until his death, and it finally went into the hands of other attorneys and this suit was brought. Mr. Bellman testifies positively that he did not know to what township he had been credited on his reinlistment. The testimony does not show in what way these seventeen men were credited to this township; they both lived there, and both testify, as I said before, that their recollection is clear that they never received this bounty.

There is nothing in the record indicating when this $1,700 was paid to Major Lathrop; there is nothing in the testimony showing any authority on his part to collect this money for these men —that he was their agent in any way, or that the law required him to receive this bounty, and we are unable to say whether he received it or how it overcomes the testimony of these relators who testify positively that they never have received it, considered in connection with this statute.

So' the order of the court will be that a writ issue to these defendants, requiring them to pay this money.

One other question before I am through. The constitutionality of this statute is attacked in the answer, upon what ground the court is' not advised; but these bounty statutes have been before the Supreme Court a number of times, commencing back in 1864, and perhaps the leading case is the case of Cass Township v. Dillox, 16 O. S., 38, where in its opinion the court reviews every possible objection that could be raised to- paying bounties for saving the nation in time of war; considered every phase of the objection to that class of payments made when they say the country was in danger. Anyway, we should not want to be the first court to declare this class of legislation in conflict with the Constitution of Ohio.

The question of interest is to be considered, and we do not think the trustees were required to hunt these men up and pay them, and we think the relators are conly entitled to interest after demand, and the decree of the court will be accordingly.


text:
    APPRAISEMENTS OF REALTY BY PROXY.
    Circuit Court of Franklin County.
    The State of Ohio, ex rel Manufacturers’ Appraisal Company, v. F. M. Sayre, as Auditor of Franklin County, Ohio.

    Decided, November, 1911.

      Board of Assessors — Employment of Company Employing Experts and Using -Expert Methods Not Within Authority of Board — ■ Delegation of Power — Discretion—Benefits—Refusal of Auditor to Issue Warrant — -Mandamus—Sections 5545 and 5565.
    1. The employment by a board of real estate assessors of an appraisal company to make real estate appraisements by. employment of experts and the use of an expert system of real estate valuations, is a delegation by the board of a duty resting upon them exclusively as assessors, and is inconsistent with statutory provisions, notwithstanding some features of such a plan may be beneficial.
    2. A review by the board of assessors of valuations so made, and their ' formal adoption by the board as their own, probably establishes their validity against collateral attack, but does not validate the additional expense so created.
    3. The discretion reposed in a board of assessors is limited to acts by the board which are within the legal limits of such discretion and are performed without fraud or gross abuse, and does not prevent an auditor from refusing to issue a warrant for expenses not within the authority of the board to incur.

      Wilson & Rector, for relator.

      E. G. Turner, Prosecuting Attorney, for defendant.
    Allread, J.; Dustin, J. and Ferneding, J., concur.

       Affirmed by the Supreme Court without opinion.

   Tbe relator seeks by mandamus to compel tbe auditor of Franklin county to issue vouchers for $8,000 as provided for in two certain contracts made by relator with tbe board of assessors of the city of Columbus°to install and put in operation the so-called “Somers system of realty valuation.”

The contracts and claims for services thereunder are sought to be upheld by force of Section 5545, General Code, which provides :

“If a board of real estate assessors in a city deems it necessary to enable it within the time herein prescribed to complete the proper listing and valuation of the real property within such city, it may employ a chief clerk and appoint such expert assistants as it may deem necessary and fix their compensation.”

The term “assistants” used in the act of March 12, 1909, was by amendment of January 31, 1910, changed to “assistance.” The General Code which was then pending before the General Assembly and adopted on March 23, 1910, retained or rather employed the original word “assistants.”

This confusion or interchange of words is not of serious consequence, particularly in view of the fact that the first contract was executed before the amendment of January, 1910, and the other after the adoption of the General Code.

It may be noted, however, in a perusal of the statute that the use of the term “appoint” in the clause authorizing “expert assistants” and the pronoun “their” in the compensation clause may well raise a grave doubt whether the Legislature contemplated a “lump sum” contract without specifying persons or duration of employment.

Section 5545, General Code, must be read and construed with the other sections of the act. The scope of employment is intended to conform to the manifest scheme of the entire act. Section 5554, General Code, provides that:

“The assessor in all cases from actual view and from the best sources of information within his reach shall determine as near as practicable the true value of each separate tract and lot of real property in his district according to the rules prescribed by this chapter for valuing real property.”

Section 5560 provides that:

“Each separate parcel of real estate shall be valued at its true value in money.”

The commissioners and auditor are required to furnish certain abstracts, maps and plats describing each tract.

The owner may be required to furnish certain information.

The board of assessors may also act under Section 5545, General Code, and secure ‘ ‘ expert assistants. ’ ’

Section 5565, General Code, provides:

“An assessor who deems it necessary to enable him to complete within the time prescribed the listing and valuation of property, moneys and credits of his district, township or ward, may appoint a qualified citizen of his county as an assistant and assign him such portion of his district, township or ward as he thinks proper. An assistant so appointed after giving bond and taking oath as prescribed by law shall perform all the duties enjoined upon or imposed upon assessors by the provisions of the law.”

By Section 5567, General Code, assessors and assistants are made liable criminally for neglect or misfeasance in office.

Section 5543, General Code, provides that the words “assessor” and “assessor of real estate” wherever used in the chapter shall include the board of assessors in cities.

It is urged that Section 5545, General Code, conferring upon boards of assessors in cities authority to appoint “expert assistants” supersedes as to cities the authority conferred by Section 5565, General Code.. In our view, however, both sections are consistent and may be harmonized.

The General Assembly was, no doubt, of the opinion that the complex influence affecting values in the cities justified the employment of experts. These experts are to be assistants; not appraisers. The appraisement is finally to be made by the official assessors residing in the city acting under, bond, the influence of official oath, and the restraint of criminal responsibility. These are safeguards which the Legislature has seen fit to prescribe and can not be ignored in the execution of the law.

How, then, stands the relator’s contract and the services of its experts thereunder?

One general feature of the contract under consideration is that the relator, the Manufacturers’ Appraisal Company, furnish the necessary “expert appraisers” of realty and structures.

The duty and responsibility of appointing the "expert assistants” is placed by statute upon the board of assessors and to delegate that important function to a non-resident corporation is not justified by public policy and is contrary to the manifest spirit of Section 5545, General Code.

The contract designates the experts to be furnished by the relator as "appraisers,” and from the whole contract and the evidence, it is manifest that the term was correctly and advisedly used. Clearly there is no statutory sanction for the appointment even by the board of unofficial "expert appraisers” and, a fortiori, there is none for the delegation of that power to others.

The first and chief obligation assumed by the relator under the contracts was "to install and superintend in and for the city of Columbus, Ohio, the operation of what is known as the "Somers system of realty valuations.” The Somers system of ground valuations is based upon units or prime factors from which values of specific tracts are arrived at through certain rules and tables. The unit upon each block must be fixed as a basis and to fix the unit value of a block is an act of appraisement not capable of being delegated by the assessors. The fact that the board of assessors may have reviewed the valuations so made and adopted them may and most probably does establish their validity as against collateral attack, yet it does not validate any expenses illegally created.

Buildings and structures were valued under the Somers system upon information secured by employes of the board of appraisers by the card system. The cost of reproduction was estimated and a deduction made of a certain percentage of depreciation according to age. This system of structure valuation is a departure from that prescribed by statute.

The unit of valuation fixed by statute is the specific tract and the rule of valuation is actual value to be determined by actual view. The Somers valuation is an approximation to actual value by a scientific method adopted by Mr. Somers based upon experiences in the larger cities.

While we do not doubt that some features of this contract were beneficial to the legitimate performance of the board’s duties, yet we can' not escape the conclusion that the contracts, for most part, constituted a delegation of tbe functions of tbe board of assessors to the relator and the performance by its experts of duties resting exclusively upon the assessors and involved a plan inconsistent with the statute. That some features were beneficial to the board and were actually used in making the assessment does not validate the contract as a whole. The contract price is presumed to include the illegal as well as the legal features.'

It is urged by the relator that the discretion ponfided to the board of assessors can’not be reviewed, and that the auditor had no right to refuse the warrant.

That view is correct, no doubt, in eases where the officer having discretion acts within the legal limits of the discretion and without fraud or gross abuse. Here, however, the board exceeded the bounds of its discretion and made a contract partly, at least, illegal.

The defendant acting'as auditor was justified in refusing a warrant for the amount of the contracts and the writ of mandamus is, therefore, refused.


text:
    ERROR. IN THE EXCLUSION OF EVIDENCE.
    Circuit Court of Hamilton County.
    Agnes E. Tappehorn v. The G. Henshaw & Sons Company.
    Decided, July 20, 1912.

      Evidence — Competent as to Agreement Between Husband.and Wifer— Where Affecting the Validity of the Chattel Mortgage in Suit.

    It is error to exclude an agreement between husband and wife, whereby he transferred to his wife the chattel property upon which it is sought to foreclose the chattel mortgage in suit, which was executed by him after entering into said agreement.

      'William Shepard and H. G. Busch,. for plaintiff in error.

      E. B. Donohue and S. K. Henshaw, contra.

      Smith,.P. J.; Swing, J., and Jones, J., concur.
   It was error for the trial court to have excluded the agreement entered into between plaintiff in error and her husband, Frederick Tappehorn, relative to the settlement of their difficulties, and in which agreement the husband transferred to the plaintiff in error the furniture-claimed under the chattel mortgage set up in the case.

The evidence shows that the furniture in question was sold and charged on the books of the GK ITenshaw & Sons Company to Frederick Tappehorn in September, 1911, at which time no security was given for the purchase price thereof.

On December 1, 1911, $200 was paid on account of the purchase price.

On January 11, 1912, the agreement mentioned above was executed by Mr. and Mrs. Tappehorn; on January 16, 1912, five days after the execution of the above agreement, Mr. Tappehorn signed a mortgage covering the furniture in question, running to the defendant in error company; while this mortgage bears date of January 8th, yet it was not signed or delivered on that day, but upon the 16th of January.

We think under the state of facts in this case that the court erred in rendering judgment in favor of defendant in error, as when Tappehorn undertook to mortgage the furniture to said company he had no title to the same, but had transferred the goods to his wife. The antedating of the mortgage to the date of the agreement between the husband and wife, we think is quite significant.

Judgment reversed.


text:
    LIABILITY OF ADMINISTRATOR FOR LOSS THROUGH FAILURE OF TITLE.
    Circuit Court of Wayne County.
    Isaiah Fisher v. George Fisher et al.

    Decided, February Term, 1911.

      Title — ■Failure of, ®s to Land of a Decedent Bold by Ser Administrator— Caveat Emptor Not Applicable and Administrator Liable.

    Where an administrator sells at judicial sale land to wbicb his intestate had no title, and the purchaser is ignorant as to the facts regarding the title, an action by the purchaser will lie against the administrator in his individual capacity for the amount paid for the land, and in such a case the administrator can not, in his individual capacity, escape liability by virtue of the doctrine o'f caveat emptor.

      Kean & Adair, for plaintiff in error.

      L. B. Gritchfield, Sr., L. B. Gritchfield, Jr., and A. D. Metz, contra.
    Voorhees, P. J.; Shields, J., and Powell, J., concur.

       Affirmed by the Supreme Court without opinion.

   This action was brought by Isaiah Fisher against George A. Fisher, in his individual capacity. George A. Fisher was and is the administrator of Margaret Roekey, deceased, and the plaintiff’s cause of action grows out of a transaction in which George A. Fisher was acting as the administrator of the estate of said Margaret Roekey, deceased.

The peition sets out in detail the facts upon which the cause-of action is based. Briefly stated, it is a suit against George A. Fisher, in his individual capacity, for fraud and fraudulent acts committed by him in the sale of property, which was made by him as administrator of said estate of Margaret Roekey, deceased, when said decedent in fact had no title or interest in said property at the time of her death. It is conceded that the title to the lands involved in this case was not in Margaret Roekey, and therefore her administrator, the defendant herein, when he sold the property had no interest therein, and the deceased, Margaret Rockey, had no title thereto at the time of her death. A sale of the property was made by the defendant, as administrator of said Margaret Rockey, to the plaintiff, and the purchase price therefore to-wit, $1,350, was paid by the plaintiff to the defendant. The purchase price was distributed by the defendant, and later it was discovered that the deceased, Margaret Rockey, had no title or interest in said property. This action was brought against said George A. Fisher to recover from him, individually, said sum so paid by plaintiff as aforesaid.

The cause was tried in the court of common pleas to a jury. Upon the trial, a state of facts was disclosed, substantially as set forth in the petition. Whereupon the court directed a verdict for the defendant — the other defendants having made conveyances to said Isaiah Fisher whereby the action against them was dismissed, so we have no concern as to any parties excepting the plaintiff and the defendant named.

The plaintiff requested the court to charge the jury as follows:

‘ ‘ Gentlemen: I say to you, as a matter of law, that the suit instituted in the probate court by George A. Fisher, as administrator of the estate of Margaret Rockey, deceased, and the proceedings therein to sell said property described in the petition in this case, being null and void for the reason stated, said Margaret Rockey had no title or interest in said property at the time of her death, and the said George A. Fisher did not and could not- sell said real estate as such administrator, the said Margaret Rockey, not being seized in fee simple thereof, and if you find from the evidence that said George A. Fisher, as an individual, wrongfully converted and sold said real estate on the 13th day of March, 1907, to Isaiah Fisher and was paid by said Isaiah Fisher the sum of $1,350 therefor, and you further find that in a suit in partition instituted on the 12th day of November, 1900, by Julia A. Rockey, guardian of the Rockey children, minors named in said petition, praying for the partition of said real estate, that the court of common pleas found that said minors were seized in fee simple of the undivided one-fourth of said real estate, and that Julia A. Rockey had dower in said one-fourth; and you further find that said Isaiah Fisher was thus evicted by the order of said court of common pleas in said partition of said one-fourth of said real estate so sold to the said Isaiah Fisher by the said George A. Fisher, then I say to you that the plaintiff is entitled to recover in this action against the said George A. Fisher and you should find for the plaintiff, and find that there is dim the plaintiff from the defendant, George A. Fisher, the one-fourth of the said sum of $1,350, to-wit, the sum of $337.50, with interest at six per cent, per annum from the 13th day of March, 1897, to the first day of this term of court, the 7th day of February, 1910, and the further sum of $323.25, with interest at six per cent, per annum from the 1st day of July, 1901, to the first day of this term of court, being the sum said Isaiah Fisher expended and paid by order of the court in said partition case for costs.”

This request the court refused to give and marked the same refused, to-which refusal, to give (as requested by the plaintiff) the plaintiff then and there excepted.

This narrows the ease down to a single proposition, namely, whether the defendant, who was selling property as administrator to which his intestate had no title, and receiving the consideration, is liable individually for the consideration so paid on failure of title.

The contention on.behalf of the defendant in erro£ is that he is not liable, and that although it is conceded that the title to the property failed, it being a judicial sale, the purchaser is subject to the rule of caveat emptor and he must bear the loss. We think there is no question but that that should be true so far as the defendant, as administrator, and the estate he represents are concerned, but not so as to the liability of the defendant individually. The facts that are set forth in the petition are sustained by the evidence, and were embraced in the charge requested, thereby presenting the question, whether or not, under such circumstances, an administrator who sells property to which the deceased had no title or interest, can be held liable individually for the purchase price.

When he filed his petition to sell real estate he represented that his intestate died seized of the property described in the petition, and he necessarily made representations throughout the whole proceedings that the property was the property of Margaret Rockey, deceased. The plaintiff, not knowing anything to the contrary, purchased the property, paid the money over to the defendant, and the title absolutely fails. Is the defendant liable individually? We think he is. Where an administrator makes representations as to the title of his intestate to the property he is selling, which are untrue, he is responsible to the purchaser who is not cognizant of such facts.

The court is unanimous in its opinion in this case. From the facts as shown in the record the plaintiff is entitled to recover, and it was error in the court to refuse to charge the jury as requested and in directing a verdict for the defendant; and for these reasons the judgment is reversed and cause remanded.

The rule of caveai emptor does not apply in a case like this. We think the case of Mulvey v. King, 39th O. S., p. 491, sustains this holding.


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    INTEREST ON PUBLIC DEPOSITS.
    Circuit Court of Licking County.
    The City of Newark v. Peoples National Bank.
    Decided, October Term, 1912.

      Depositaries of Public Funds — Interest Recoverable on Deposits — Made . by a Municipal Treasurer — With Knowledge on the Part of the Banlc as to their Trust Character.

    1. An action brought by a municipality against a bank for recovery of interest received by said bank on funds belonging to the municipality and alleged to have been deposited without its knowledge or knowledge on the part of the bondsmen of the treasurer who made the deposit, but with knowledge on the part of the bank as to the ownership and trust character of said funds, is not open to demurrer, and an accounting of profits so received may be required of said bank.
    2. But a petition which omits, in such a case, the averment of knowledge on the part of the bank of the true ownership of the funds so deposited, is open to demurrer.

      Jones & Jones, for the city of Newark.

      Fulton & Fulton, for Peoples National Bank.

      Killer &■ Killer, for Franklin National Bank.

      Carl Norpell, for Newark Trust Co. and First National Bank.

      Fitzgillon cb Montgomery, for Licking County Bank & Trust Co.
    Powell, J.; Voorhees, P. J., and Shields, J., concur.
   This cause, with causes No. 1302 to No. 1306, inclusive, was submitted to the court upon the agreement that all of said cases should be heard as one case, involving the same question, and that the holding in one should govern the decisions of all the others.

The petition was filed by the city solicitor of the city of Newark to recover from the Peoples Bank interest, or any profits such bank may have received upon a deposit alleged to have been made in said bank by the city treasurer of said city, without the knowledge and consent of the city, and without the knowledge and consent of the bondsmen of such treasurer, and with the knowledge on the part of the bank that the funds were the funds of the city, and not the individual funds of the treasurer, which were mingled with the funds of the bank and loaned out at interest; which deposit was made in said bank on the 19th day of June, 1905. The amount of such deposit was sixty thousand dollars. Plaintiff prays judgment in the sum of eighteen hundred dollars, with interest from the 19th day of June, 1905; or if the amount of interest actually received by such bank upon said deposit can not.be ascertained, it further prays that the defendant be required to account to said plaintiff for all interest, profits and money received from the moneys received and deposited with defendant as alleged; and for any other relief which would be just and equitable.

A demurrer was filed to this petition. It was sustained by the court below, and judgment was rendered, dismissing the petition, and the case is brought to this court for review.

Upon an examination of the authorities, we are of the opinion that the moneys described in the petition are trust moneys; that the treasurer of the city was simply their custodian, and had no title, other than as such custodian; that, as such custodian, he deposited the same with the defendant, with the knowledge on the part of the defendant that the same were public moneys of the city.

We think it is the law, in cases of this kind, that no title other than the title as trustee passes to the defendant; that as such trustee, it would be liable to return the principal sum and any profits which might accrue to such principal sum while it remained in the hands of the defendant; and that because of the defendant having knowledge that such funds were trust funds, no title would accrue to it to such moneys other than as trustee.

We are, therefore, of the opinion that the court erred in sustaining this demurrer. We think the petition states a good cause of action as far as requiring or asking that an accounting be made by the defendant for any profits arising from said fund while the sum was in its custody.

The judgment of the court of common pleas will be reversed, and the cause will be remanded for trial or other proceedings according to law.

Exceptions may be noted.

The ease of the city of Newark, Ohio, v. the Franklin Bank Co., being No. 1302, is different from the other eases which were heard at the same time with No. 1301, in this particular: the petition does not allege that the funds deposited with the bank were so deposited with the knowledge on the part of the bank that they were trust funds or the moneys of the city, and deposited' by the treasurer as their custodian.

We think, for this reason, one of the essential elements in stating a cause of action against the defendant is not alleged, and that the petition does not, therefore, state a good cause of ' action against the said defendant.

. The demurrer to the petition in No. 1302 was properly sustained, and the judgment of the court of common pleas in the case will be affirmed.

The same order may be entered in Numbers 1303, 1304, 1305 and 1306 as is ordered to be made in.No. 1301. The judgment in each of these cases will be reversed, and they will be remanded to the court of common pleas for trial or other proceedings according to law. Exceptions may be noted.


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    EXTENT OF SECOND WIFE’S RIGHT TO DOWER. IN MORTGAGED LANDS.
    Circuit Court of Pickaway County.
    George Kern, Administrator of Philip Kern, Deceased, v. Rilla J. Kern et al.

    Decided, 1911.

      Dower — Computation of, to Second Wife — In Lands Encumbered by Mortgages winch Were Overdue at the Time of Her Marriage.

    1. Where land is mortgaged hy the husband and the condition is broken before marriage and after marriage the husband dies, upon sale of the land by his administrator for payment of his debts, and the proceeds of the sale of the mortgaged land are large enough to pay the mortgage debt and leave a surplus sufficient to allow the widow dower in the entire proceeds: Held, that the widow is only dowable of the surplus proceeds after paying the mortgage debt and not out of the entire purchase money.
    2. The husband was not seized of an estate of inheritance during coverture in the land, and at the time of his death he owned hut an equity therein.
    3. The widow’s rignt to dower in the land of her deceased husband is to be measured by his interest therein, and can rise no higher.
    4. The condition in the mortgage having been broken before marriage, the legal title at that time was in the mortgagee.

      Charles Gearhart, for the administrator and heirs.

      Barton Walters, for the widow, Rilla J. Kern.
    Walters, J.; Jones, J., and Sayre, J., concur.

       Affirmed hy the Supreme Court without report, Kern v. Kern, Admr., 87 Ohio State, : — .

   Philip Kern, a resident of this county, died in 1910, intestate. ITe was twice married. Before his marriage to his second wife he had given two several mortgages. He intermarried with his second wife, now his widow, Rilla J. Kern, in 1909. There were no children of such marriage. At the time of his marriage the mortgages given upon the land in question were due and unpaid. After his death proceedings were instituted in the probate court to sell the land for the payment of debts; the widow was made a party by answer, and comes in and waives the setting off of her dower by metes and bounds, and elects to take the value of the same out of the proceeds of the sale. The widow claims she should be endowed as of the whole proceeds of the sale; the heirs claim that she should be endowed only out of the surplus that may remain after the payment of the mortgages.

The sole question presented to this court is, as to whether or not the widow’s dower should be calculated on the whole of the purchase money, or only upon the surplus that may be left after the payment of the mortgages.

This question has arisen in different ways and in different forms and phases, in the Supreme Court of the state, in different cases. It is claimed on behalf of the widow, in the first place, that the husband was seized of such an estate at the time of marriage and during the coverture, that she is entitled to dower in the whole premises. It seems to this court that a good deal of attention should be paid to the principles governing the assignment of dower, and the kind of an estate that the husband must have before the widow is entitled to dower, and it will shed a great deal of light upon the solution of this question. It has been already stated that at the time the widow married Philip Kern, that these mortgages were resting upon this land, and that they were due. The effect of that matter is to transfer the legal title in the premises from the mortgagor to the mortgagee and the mortgagee has a deed, not an absolute, but a conditional deed to the premises.

Philip and his first wife executed this conditional deed to convey absolute title to the mortgagees in this ease, conditioned, however, upon the fact that they pay the money as stipulated in the conditional clause, and in case they do not pay the debt as it is written in the mortgage deed, and in the conditional clause, that then the title to the premises shall become absolute. The effect of that deed of mortgage, and the condition in the deed is such that our Supreme Court has decided several times, and it is the law in Ohio, that when any condition in a mortgage is broken that the legal title to the mortgaged premises passes from the mortgagor to the mortgagee; in other words, the condition having been broken, the conditional clause in the mortgage or in that' absolute part of the deed then become operative, and the conditions not having been complied with, the deed passes the legal title over to the mortgagee. Now that is the condition of affairs at the time the widow here married Philip Kern. The mortgagees in this instance owned the fee simple title to the real estate; the legal title by the conditions having been broken passed to the mortgagees. Philip Kern then retained only an equity in these premises, viz., the right to redeem by paying the mortgages.'

The Supreme Court has decided that the legal title passes so effectively from the mortgagor to the mortgagee when the condition is broken, that the mortgagee may maintain an action in ejectment against the mortgagor and recover the possession of the premises; in order to maintain an action in ejectment the person seeking possession of the premises must have the legal title thereto. Therefore, at the time the widow here married Philip Kern, the condition of the mortgage having become broken, and the deed having become absolute, and the legal title having passed from Philip Kern to the mortgagee, the wife was endowed at the time of the marriage of an inchoate right in whatever interest Philip had in these premises, and he had, as I said before, at that time only an equitable interest, a right to redeem.

The statute in reference to dower is that the husband must have been seized during coverture of an estate of inheritance, or he must have been seized of an equitable estate at the time of his death. Philip Kern had no legal estate at the time of his death, nor was he seized of an estate of inheritance in this land at any time during coverture; he was only seized or had the title to or ownership in an equitable interest in this farm, a right to redeem. That being so, it would seem to appear from the very language of the statute, and from the very condition of the title to this land, that the wife could only take such interest in the husband’s property at the time of marriage or during coverture as lie had. Her rights could not rise any higher than his. He only having an equitable estate in the land at the time of marriage, and at the time of his death, his widow could only take such dower in such land as he had a benefical interest in. That is the measure. When' we come to look at the authorities, there does not seem to be any conflict in the authorities in Ohio on the subject. Possibly some judge in delivering an opinion has made a statement that would seem to be in conflict with some other cases decided by our Supreme Court, but when you apply the facts of the particular cases, to the statements made by the judge in the opinion, and look at the underlying principle that must be observed, we can not see that there is any particular conflict in the cases, 'especially since the Supreme Court has overruled the ease of Bank v. Hinton. The ease of Rand v. Kendall has never been overruled or modified in any particular. It was decided in 1846, and is reported in the 15 Ohio Reports, page 671. The syllabus is as follows:

“Where land is mortgaged by the husband and the condition is broken before the marriage, and the equity of redemption is released by the mortgagor during coverture, his widow is not entitled to dower, after his decease.
“To entitle the widow to dower, her husband must have been seized of a legal estate of inheritance during the coverture, or of an equitable interest at the time of his death.”

It is claimed that in the 2d Ohio, the Supreme Court said that rule only applied between mortgagor and mortgagee, but in this ease the court is of the opinion that it carries further, that is, to all parties, that the legal title is vested, in the mortgagee.

As late as 1881, the case in the 36 O. S., page 605, the ease of Abbot v. Bosworth, it was held in the second syllabus:

“To entitle a widow to dower in an equitable estate of her husband he must have owned said estate at the time of his decease. ’ ’

That is exactly like the syllabus in the Rand case which I just read a moment ago, and they approve it and follow it. In the Rand case, the mortgage had become absolute, and they decided therefore, that he did not in that case have an estate of inheritance at the time of marriage, and he did not die seized of an equitable estate, and in that case, therefore, she couldn’t have dower at all. In this case, Philip Kern died seized of an equity, a right to redeem.

It is claimed that the cases of Kling v. Ballentine, Mandel v. McClave, and a case in the 6th C.C. (N.S.), page 381, Hickey v. Conine, affords authority for the allowance of dower calculated upon the whole purchase money.

It might be observed that in the ease reported in the 40th O. S., page 391, Kling v. Ballentine, and the case of Mandel v. McClave, 46 O. S., 407, 'that these cases were cases where the wife and the husband joined in the mortgage, the husband owning the entire land or estate at the time the mortgage was given. The land was sold. Held in those cases that the wife’s dower should be calculated not only upon the surplus that may remain after the payment of the mortgages, but upon the entire purchase money, and that, upon the theory, and upon the principle that the husband during coverture was seized of an entire fee simple property, and that her right to dower must be measured by the amount and quantum of the estate that he owned during coverture, which was the entire estate; and that the wife in a ease of that kind is looked upon as a mere surety or security for the debt of her husband, and that she only so far forth gives her inchoate dower interest in her property when she signs the mortgage, as that it may be necessary to take her inchoate dower interest for the payment of her husband’s debt, but if sufficient remains of the husband’s alone, if his estate is sufficient to pay the debt, then she stands in the light of a surety, and his estate having been sold for enough to pay the debt leaving a surplus, that she, therefore, is entitled to dower in the whole proceeds of the land. That we consider equitable. So that "in the eases of Kling v. Ballentine, and Mandel v. McClave, those cases are distinguished from the case at bar.

The case of Culver v. Harper, 27 O. S., 464, is a case, we think, in line and harmony with with our ruling in the case at bar. The syllabus is as follows:

"Tbe dower of a purchase money mortgagor, mortgage given before marriage, and property sold by the executors to pay the mortgage debt, is not dowable of the whole proceeds, but only of the surplus remaining after satisfying the mortgage.”

The case in the 83d O. S., on page 162, is affirmed, and the-court makes the distinction in the opinion in this ease that we have already adverted to, that it is the quantum of the estate at the time of the marriage or during coverture that must determine the measure of the widow’s dower in his land; and if the husband at the time of marriage or during coverture owned the entire fee, then, if the mortgage was given as in the McClave ease, the widow is entitled, if she signs the mortgage, to have the husband’s estate first exhausted, as she stands in the light of a surety. But if at the time of marriage the husband owns only an equity of redemption her dower interest is measured by the beneficial interest he has. Tiers can rise no higher than his. These distinguishing points, as I have said, were pointed out by Judge Shauck, in the 83d Ohio State, in the opinion in the ease I have already read from, and the syllabus in the Culver case is one which they followed in that case.

In the case of Hickey v. Conine we are able to see that there is quite a distinctipn between that case and the case at bar. In that case the purchase money mortgage that existed upon the' premises was not due, and, therefore, the legal title had not passed from the mortgagor to the mortgagee, and the circuit court mentions that fact. In the opinion on page 326 it is said:

"As against the mortgagee and all the world the legal title to the mortgaged premises, until condition broken, remains in the mortgagor. It is only after the condition of the mortgage is broken that the legal title as between the mortgagor and mortgagee vests in the mortgagee. Nothing vests the title in the mortgagee but the breach of the condition of the mortgage. In the ease at bar the condition of the mortgages were not broken, and as against the mortgagee and all else the legal title remained in the mortgagor, and this whether the debt secured by it was for purchase money or otherwise. No action was pending or could be commenced to foreclose this mortgage or to recover possession in ejectment under it, and no proceedings could be taken or had to force the vendor’s lien for the purchase money, the debt to which the mortgage was incident. ’ ’

This ease was affirmed by the Supreme Court, and upon reason and logic it sustains the position taken by' counsel for plaintiff in error in this case, but in the facts that I pointed out it does not. The Supreme Court simply affirmed the case by a divided court, and we can hardly take it as an authority in overruling the principles laid down in the cases previously decided by our Supreme Court. In fact the elementary principles in regard to dower, inchoate or otherwise, of the widow in lands of her deceased husband, there has been some confusion in the authorities arising out of the fact that the cases are numerous where the controversy was in regard to purchase money mortgages, and the rule obtaining in Ohio, that the widow can not claim dower as against the purchase money mortgage, that the husband never has such seizure, when the land is conveyed to him by the vendor, and he executes a mortgage back to the vendor for the purchase money, that the vendee never has such seizure in law that the dower of the wife can attach. But this is limited and restricted to the purchase money mortgage alone. Take the purchase money mortgages out of the question and the legal title still remains in the vendee and is of such character that dower can attach.

It is well settled in Ohio as against purchase money mortgages that the husband has no such seizure as that dower can attach.

Upon the whole, we are satisfied that the courts below were right on principle and authority in denying to the widow here a calculation of her dower based upon the whole purchase money , of this land, but should be confined to the surplus after the payment of the mortgage.

The judgment of the lower court will be affirmed.


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    CONSTRUCTION OF THE STATUTORY DISQUALIFICATION OF NOTARIES.
    Circuit Court of Cuyahoga County.
    Rhinelander Paper Company v. The Pittsburgh Mining Company.
    Decided, December 2, 1912.

      Attachment — Validity of Affidavit — Qualification of Notarial Officer— Sections 11524 and 11532.
    An affidavit in attachment is not rendered invalid by reason of the fact that it was sworn to before a notary who was employed as a clerk in the office of the attorneys for the attaching creditor.

      Stearns, Chamberlain & Boy on, for plaintiff in error.

      M. B. & II. H. Johnson, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
    Error to the Court of Common Pleas.
   The sole question for review in this case is the sufficiency of an affidavit-in attachment which was sworn to before a clerk or employe in the office of the attorneys for the attaching creditor.

General Code, Section 11524, says that an affidavit may be made before any person authorized to take depositions, and General Code, 11532, provides:

‘ ‘ The officer before whom depositions are taken must not be a relative or attorney of either party or otherwise interested in the event of the action or proceeding.”

The notarial officer before whom this affidavit was sworn to was not a relative or attorney of either party, nor does the record show that he was ‘' otherwise interested in the event of the action or proceeding.” He was a young man working on a salary for a firm of attorneys in the case. He had no connection with the case beyond taking the affidavit. The interest in the event of the action or proceeding which disqualifies a notary public from acting in the taking of affidavits, we hold to be some legal, certain and immediate interest such as formerly disqualified a witnesses from testifying. See Smith v. The State, 18 Ohio, 89.

No such, interest appears here, and we find no occasion for extending the limitations of the statute beyond its words; while the attorney of a party may not act in taking a deposition or affidavit, the prohibition is not extended to the clerk of such attorney.

The trial court having come to the same conclusion, its judgment is affirmed.


author: By the Court

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    NECESSARY PARTIES IN ACTION FOR. PARTITION.
    Circuit Court of Licking County.
    Charles Richards v. George Richards, et al.

    Decided, October Term, 1912.

      Partition — Husbands and Wives of Tenants in Common — Necessary Parties in an Action to Apart the Lands — Division of the Pee Awarded to Counsel — Dower.
    The husband and wives of co-tenants have an inchoate contingent right of dower in the respective shares so held in common, and in an action to apart the lands it is necessary, in order to foreclose their rights, that such husbands and wives be made parties.

      Killer & Killer, for plaintiff in error.

      Fitzgillon k& Montgomery, contra.

       For contrary holding below, see Richards v. Richards, 13 N.P.(N.S.), 153.

   By the Court

(Voorhees, Shields and Powell, JJ.)

The plaintiff in error seeks to have the judgment of the court of common pleas, overruling a motion, reviewed.

The action was for the partition of real estate. The plaintiff in the court below did not make the husbands and wives of such co-tenants as were married parties to the proceeding. The defendant, Charles Richards, filed an answer in that proceeding, asking that the husbands and wives of such of the co-tenants as were married should be made parties to the proceeding, which was done, and all of said parties were brought into the case. Partition was had.

The plaintiff in error asked to have the partition fee allowed by law apportioned between the attorneys for the plaintiff and the attorneys filing the answer for him, upon the theory that the husbands and wives of each of said-co-tenants as were married were not only proper but necessary parties to the partition proceeding, in order to convey to the purchaser of the lands sold in such proceeding a good and perfect title.

The court of common pleas held that they were not such necessary parties, and that, for that reason, the services of the attorneys, in filing the answer and bringing in such parties, were not of any benefit to the co-tenants, and overruled their motion, Thereupon error was prosecuted to such action of the court.

We are of the opinion, upon the authorities cited, that the husbands and wives of co-tenants have an inchoate, contingent light of dower’ in the respective shares of such co-tenants; that, in order to shut off or foreclose their right in the premises, they ought to be made parties to a partition proceeding to apart the lands belonging to such co-tenants; and that because such husbands and wives were made parties upon the application of the plaintiff in error, such attorneys as were employed by him rendered services which were of benefit to all of such co-tenants.

We think the court erred in holding otherwise. If such services were for the benefit of all of such parties, the attorneys rendering them should be awarded a part of the fee allowed in such partition suit, according to the benefits of the services rendered.

This was so held by the first circuit in the Appendix to Volume 19 C. C. Rep., at page 654, in the third subdivision of the opinion by the court.

We also cite, in support of this holding, the ease of Young et al v. Stone et at, in the 55 Ohio State, at page 125, and especially at page 134.

The judgment of the court of common pleas will, therefore, be reversed; and the court coming now to render such judgment as the court below should have rendered, it is ordered and adjudged that a fee of $75, out of counsel fees taxed as heretofore ordered, be allowed to Kibler & Kibler as attorneys for the said plaintiff in error; that the costs of this proceeding in error be paid out of the residue of such sum in the hands of the sheriff, and that the balance be paid to the attorneys for the defendants in error. Exceptions are noted.


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    LIABILITY FOR. INJURY TO A RAILWAY EMPLOYE THROUGH NEGLIGENCE OF ANOTHER. EMPLOYE.
    Circuit Court of Lawrence County.
    Benjamin S. Warren et al, Receivers of The Detroit, Toledo & Ironton Railway Company, v. Arthur J. Hannon.
    Decided, November Term, 1912.

      Neglige,nee — Where Resulting in Injury to a Railway Employe — Application of the State and Federal Statutes for Protection of Persons Engaged in Interstate and Intrastate Commerce — Section 9017.
    1. The Act of the General Assembly of Ohio passed February 28, 1908 (99 O. L., 25), in so far as it undertakes to impose a liability on common carriers by railroad while engaged in interstate commerce is void, but in so far as it undertakes to impose the same liability on such carriers while engaged in intrastate commerce is a valid enactment.
    2. The language of the act which divides railroads into those which are in whole, and those which are in part, within the state does not distinguish between common carriers by railroad, when engaged in interstate commerce and when engaged in intrastate commerce and in that form, in the absence of federal regulation, would apply to all commerce; but there is nothing in the act to warrant the presumption that the Legislature would not have passed it were it to be superseded, as it was, by the act of Congress of April 22, 1908, in so far as it applied to interstate commerce.
    3. The act of Congress passed April 22, 1908, and said statute of Ohio, impose upon common carriers by railroad a liability for injury to any of their employes resulting from the negligence of any other of their employes, and thus eliminate the defense founded upon the negligence of a fellow-servant. These two acts, the one applying to interstate commerce and the other to intrastate commerce, furnish an universal rule applying to all actions, for personal injuries, to an employe of common carriers by railroad, caused by the negligence of any other employe.
    4. Hence, in an action for personal injuries brought by a locomotive engineer, when injured in the discharge of his duties on one train, in a collision caused by the negligence of the conductor of another train, an instruction given to the jury, substantially in the language of the second paragraph of Section 1 of the act of February 28, 1908, there being no averment in the pleadings nor evidence in the case as to whether, at the time he was injured, he was engaged, in interstate or intrastate commerce, is a proper instruction.

      E. H. Willis and Cooper & Bussell, for plaintiffs in error.

      A. B. Jolvnson, contra.
    Sayre, J.; Walters, J., and Jones, J., concur.
   On the 13th day of December, 1910, the plaintiffs in error, as receivers of the Detroit, Toledo & Ironton Railway Company, were operating a railroad extending from Detroit in the state of Michigan, to Ironton in the state of Ohio, and the defendant in error was employed by them as a locomotive engineer; and on said day he was ordered by them to take a freight train, made up of thirteen freight cars and a caboose, from Ironton to Lisman Junction, a station on said railroad about eleven miles north of Ironton in Lawrence county. When about two and a half miles north of Ironton the train, on which defendant in error was engineer, collided with another train, coming south, and he then and there received the injuries on account of which he brought this action in the court of common pleas of said county. In that court he recovered a judgment for $19,000, and the object of this proceeding in error is to reverse that judgment.

In his petition filed in the court of common pleas, Hannon stated that his injuries “were caused by reason of the carelessness, negligence and unskillful management of the defendants, their agents and employes, in the discharge of their duties. ’ ’

The answer of the defendants.admitted the collision and the injury to plaintiff and denied that the injury was caused by reason of any carelessness, negligence, or unskilful management of the defendants in the discharge of their duties, but averred that if the injury was caused by careless and negligent acts then those acts were the acts of fellow-servants of plaintiff who were employed in conjunction with said plaintiff in the performance of a common business, and that neither of said fellow-servants, the engineer and conductor upon said south bound freight train, nor said plaintiff, while engaged in said business, had any control or authority over each other.

The jury found, in response to a special interrogatory, that . the proximate cause of the injury was the failure of the conductor of the south bound train to procure an order .or clearance card at Lisman Junction. Before argument at the request of counsel for plaintiff, and oyer objection of defendants, the court gave the following instruction:

“If you find from a preponderance of the evidence that defendants were operating a railroad, a part of which was in the state of Ohio, and that plaintiff was an employe of defendants as an engineer upon one of its railroad trains and operating one of the railroad engines, the accident by which plaintiff was injured occurred by a head-on collision in Lawrence county, Ohio, and that plaintiff was in the discharge of his duties as an engineer upon said engine, as an employe of the defendants at said time of said collision, and the receiving of the injuries complained of by plaintiff, and that said collision was caused by the carelessness and negligence of any other employe or agent of defendants while in the discharge of or failure to discharge his duty or duties as such employe of defendants, then in that event said defendants would be liable to plaintiff for any and all injuries plaintiff received by reason of said collision.”

The claim of the defendants is that the act of Congress approved April 22, 1908, is exclusive and supersedes the acts of the Legislature of the state of Ohio on the same subject; that the statute, 99 O. L., 25, is invalid and that as the plaintiff does not show he was injured while he was engaged in interstate commerce he can not recover.

It is not stated in the pleadings, nor shown in the proof, whether defendant in error, when injured, was engaged in interstate or intrastate commence. The special charge given by the trial court permits a recovery irrespective of the character of the business in which plaintiff was engaged when injured.

The act of Congress approved April 22, 1908 (35 Stat. at L., 65; Chap. 149, U. S. Comp. Stat. Supp., 1909, p. 1171, reads in part as follows:

“That every common carrier by railroad, while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * # * resulting in whole or in part from the negligence of any of the officers, agents or employes of said carrier,” * * *

The act of February 28, 1908 (99 O. L., 25, Section 9017, G. C.), reads in part as follows:

“Every railroad company operating any railroad which is in whole or in part within this state shall be liable for all damages sustained by any of its employes by reason of personal injury.
“2. While any such employe is engaged in operating, running, riding upon or switching passenger, freight or other trains, engines or cars and while engaged in the performance of his duties as such employe, and when such injury shall have been caused by the carelessness or negligence of any other employe, officér or agent of such company in the discharge of or for failure to discharge his duties as such. ’ ’

It is evident that this statute imposes upon all common carriers by railroad the same liability for injuries to their employes, whether they are engaged in interstate commerce or otherwise.

That the federal statute passed April 22, 1908, imposing a liability on common carriers by railroad for injuries to their employes superseded the act of the Ohio Legislature (99 O. L., 25) in so far as the latter act undertakes to fix such liability while said carriers are engaged in interstate commerce, and in actions to recover damages for injuries received while the plaintiff was engaged in such commerce, to eliminate the defense that the negligence which caused the injury was the negligence of a fellow-servant, is shown by the cases of Mondou v. Railroad Co., 223 U. S., 1; Northern Pacific Railroad Co. v. State of Washington, 222 U. S., 369; State v. Chicago, M. & St. P. Ry. Co., 117 N. W., 686.

The power of Congress to regulate or limit the liability of common carriers to their employes while engaged in interstate commerce, and to provide what shall and what shall not be a defense in a judicial tribunal in a case arising from any injury received while the person injured was engaged in such commerce, is paramount.

Within the field where by the Constitution Congress can act, its power is supreme.

If Congress has exercised that power and passed a law, regulating the particular subjects mentioned, the state Legislature then is without power to legislate on the same subject, and all of its acts on that subject, immediately upon the passage of the federal legislation, become absolutely void.

But the Ohio statute of February 28, 1908, not only undertakes to legislate as to the liability of railroads engaged in interstate commerce, but as to the liability of those engaged in state or domestic commerce. It will be conceded that the Legislature has power to legislate concerning the persons and instrumentalities engaged in such state or domestic commerce, so that, if the invalid provisions of this statute can be separated from the valid, the act may yet remain effective in so far as it deals with the subject of state commerce.

Is the state statute separable? Can the part of the statute which applies to interstate commerce be separated from the part which applies to state commerce? The language of the first sentence of the act is: “Every railroad company operating any railroad which is in whole or in part within the state shall be liable.” * * * It has been held that if this statute related solely to railroads wholly within the state, it would then only apply to state commerce. But is this reasoning sound ? Because a railroad lies wholly within a state it is not for that reason beyond the reach of federal regulation. If it is engaged in interstate commerce it is within the control of federal power precisely as if its line extended from one state into another or through several states. -Railroads lying wholly within a state may, and generally are, engaged in interstate commerce by reason of their connections with other carriers. The line which divides the state and federal power to legislate concerning the liability of railroads to their employes, is not defined by the location of the railroads but by the business in which they are engaged. Hence, a law which divides railroads into those which are in whole and those which are in part, within the state does not distinguish at all between those engaged in interstate commerce, and those engaged in state or domestic commerce. The act operates upon all railroads alike which lie either in whole or in part within the boundaries of the state.

Since the enactment by Congress of the statute of April 22, 1908, may not the act of February 28, 1908 (99 O. L., 25), be construed so as to apply only to the liability of common carriers by railroad while engaged in state commerce? In the case of Howard v. Illinois Central Railroad Company, 207 U. S., 463, in which ease the Supreme Court of the United States held invalid the first employer’s liability act, it was decided that that act, which attempted to regulate both state and interstate commerce, could not be construed to apply to a regulation of interstate commerce alone because — •

(a) It would require the court to read into the act the words “when engaged in interstate commerce” which would restrict and limit the act when applied to the District of Columbia and the territories, to interstate commerce when the Congress in those political divisions has full power to regulate both state and interstate commerce, and would thus destroy the act in an important particular. “To write into the act the qualifying words therefore would be to add to its provisions in order to save it in one respect and thereby to destroy it in another; that is, to destroy in order to save, and to save in order to destroy.” And because

(b) The court held that it was unable to say that the statute would have been enacted hacl its provisions been limited to the regulation of interstate commerce alone.

In the case of State v. Chicago, M. & St. P. Ry. Co., 117 N. W., 686 (Supreme Court of Wisconsin), it was held that the state statute prohibiting any railroad company from requiring any telegraph or telephone operator to remain on duty for more than one period of eight consecutive hours, when the federal statute made it unlawful to remain on duty for a longer period than nine hours in any twenty-four hour period, could not be separated so as to construe it as applicable to state commerce alone, because the court held that it was not certain that the act would have been passed if the Legislature had known that it would be construed to apply only to domestic commerce.

“The impracticability if not impossibility of limiting hours of work devoted to domestic commerce is so obvious as to preclude belief in any such legislative purpose.”

• It is evident that a telegraph operator would be engaged in interstate and domestic commerce at the same time, and it would be impracticable if not impossible to separate his work in that respect, so that it would be impossible to enfo'rce an eight-honr day as to domestic commerce and a nine-honr day as to interstate commerce. It is easy to perceive why .the court would arrive at the conclusion in construing that kind of a statute, that no such separation of its provisions could be made.

But is the state statute under consideration here beset with any such difficulties as those above mentioned ? Both eases above referred to uphold the position that .a valid provision of a statute may be separated from the invalid, if the same can be done; and it is reasonable to suppose that the Legislature would have enacted it if it had been known that the act would have been construed to apply only to domestic commerce.

There would be no difficulty about enforcing the Ohio and federal statutes at the same time, as all that would be required would be to prove whether the person injured was engaged in one or the other kind of commerce, which certainly is not a difficult undertaking to say nothing of an impracticable or impossible one.

In our state it has been held that “where the provisions of an act are so inseparably connected in subject matter and so relate to each other as to give arise to a presumption that a part would not have been enacted without the whole, the entire act is void.” Railroad v. Commissioners, 30 O. S., 338-344.

And again:

“One part of a section of a statute may be void for want of conformity to the Constitution, without affecting the validity of the remainder, unless the objectionable and unobjectionable portions are essentially and inseparably connected in substance or are so interdependent that the General Assembly would not have enacted the one without the other.” Treasurer v. Bank, 47 O. S., 503.

Assuming, for the purpose of this discussion, that the presumption would arise that the statute under consideration would not have been passed if the members of the Legislature had known that the courts would finally construe it to apply only to domestic commerce, or if they had known that an act of Congress would supersede the state statute as to interstate commerce, may not consideration be had of the probable attitude of the members of the Legislature toward the subject. if they had known that the federal act would impose upon common carriers by railroad the same liability which the state act imposed, and if they had known that the defense founded on the negligence of a fellow-servant would thus be eliminated by the superseding act?

If the courts may speculate with the- possible or probable state of mind of the persons, composing the Legislature, toward an act which has been held invalid in part, may not they also speculate as to the state of mind of the legislators, as to what they might have done, if a part of their enactment which is rendered nugatory, would be immediately superseded by an act of Congress containing the same terms, imposing the same liability, and eliminating the same objectionable defense? What person, if he would vote for the legislation at all, could or would refuse to vote for the statute here construed, with knowledge that it would be superseded by an act of Congress that would in effect re-enact the same provisions that were thereby rendered void?

We are here presented with a new and curious situation. The cases which we have above referred to (Mondou v. Railroad Co., and State v. Chicago, etc.), concern statutes which were held invalid in part, and because the objectionable and unobjectionable portions were so connected that it might be presumed that a part would not have been enacted without the whole, all the provisions of the acts were held invalid. But in those cases the part that was swept away because unconstitutional was not replaced or superseded by a like provision in the federal law.

In our case when the state statute was superseded by the federal, the later supplied completely and fully the provisions applicable to interstate commerce which had been swept away.

But another line of reasoning may be suggested. These employer’s liability laws are enacted to protect as far as may be, the employes of common carriers from injuries and death while engaged in the work for which they are employed. Can it be fairly contended that the Legislature would refuse to enact legislation protecting them while engaged in domestic commerce simply because they were unable to protect them while engaged in all commerce? Would the Legislature because it knew Congress might exercise its power and the state law be superseded by a federal one on the same subject, refuse to afford the protection which alone could be afforded by state legislation? It seems to us there is but one answer to this question.

In the act to compel common carriers by railroad to equip their ears with automatic couplers, the Ohio Legislature (98 O. L., 25) limited the application of the act to domestic commerce, and the purpose of that act was the same as the employer’s liability act, namely, to promote the safety of employes of common carriers.

An authority precisely in point is the case of Phila., etc., Railway Co. v. Penn., 82 U. S., 282 (21 Law Ed., 146), as construed in Supervisors Albany Co. v. Stanley, 105 U. S., 305 (26 Law Ed., 1050).

The court is firmly of the opinion that the Legislature would have passed the act of February 28, 1908, were it to be superseded by the act of April 22, 1908, applying to interstate commerce.

There are then in operation in Ohio, side by side, two laws, one federal, the other state; the one relating to the liability of common carriers to their employes while engaged in interstate commerce, and the other relating to the liability of common carriers to their employes while engaged in state commerce. A locomotive engineer, while engaged in operating a locomotive drawing cars on a railroad, must be engaged in either state or interstate commerce. There are no other classes of commerce, known to these laws, limiting such liability. Both laws provide that in case of injury to an employe engaged in the performance of his duties he may recover damages, for such injury, when such injury was caused by the negligence of any other employe, and the defense founded on the negligence of a fellow-servant can not therefore be made.

Therefore these two provisions, the one or the other applying to each and every case, furnish an universal rule governing all actions for personal injuries to an employe of a common carrier by railroad caused by any other employe.

The validity of paragraph two of section one of the act of February 28, 1908, would seem to have been established by the Circuit Court of the First Circuit in Railway Co. v. Francis, 13 C.C.(N.S.), 167, inasmuch as that judgment was affirmed by the Supreme Court in 83 O. S., 520, without report.

The special instruction given by the trial court was therefore a correct and proper instruction.

This conclusion determines all the other questions in the case, and the judgment of the court of common pleas will be affirmed.