author: Per Curiam.

text:
    THE AUTOMOBILE UNDER. THE EXEMPTION STATUTE.
    Court of Appeals for Hamilton County.
    The Johnson Electric Supply Company v. Walter Spence.
    Decided, 1917.

      Automobile Not Exempt Erom Execution — Is Not an Implement and Can Not be Claimed in Lieu of Homestead — Section 11725.
    1. An automobile as used in this case is not an “implement” within ithe meaning of the statute exempting certain articles from levy and execution.
    2. Nor can an automobile be claimed as exempt in lieu of a homestead where the owner and his wife were the owners' of a homestead and living therein at the time the levy was made, notwithstanding the property was mortgaged for more than it was worth and was conveyed to one of the mortgagees after the levy was made.

      3: J. Siebenthaler, for plaintiff, in error.

      Galvin & Bauer, contra.
   Per Curiam.

The question to be determined in this case is whether or not an automobile, of the type Hudson, 1911, is specifically exempt from execution in favor of the defendant in error, who was a married man at the head of a family and claimed he was not the owner of a homestead.

The judgment was rendered against the defendant in error in the sum of $114.68, and at the time the judgment was rendered he and his wife were living in a home consisting of a house and lot in the city of St. Bernard, which was encumbered by mortgages for more than its value. After the judgment was rendered and after the execution was levied upon the automobile in question, the defendant and his wife conveyed to one of the mortgagees the real estate in which they lived. Defendant thereupon claimed that the automobile was specifically exempt from execution under Section 11725, Subdivision 5 of the General Code. His calling was that of an electrician, and in an affidavit filed in the trial court, claiming the automobile as exempt from levy and execution, he set out that the automobile was necessary to enable him to carry on his trade or occupation, and that the value of the machine was not more than $100.

Subdivision 5 of Section 11725, General Code, provides that—

“Every person who has a family,” etc., “may hold * * *.
‘ ‘ 5. One sewing machine, one knitting machine, and the tools and implements of the debtor necessary for carrying on his or her trade or business, whether mechanical or agricultural, to 'be selected by him or her, not exceeding one hundred dollars in value.”

It is the claim of defendant in error that this automobile is an implement necessary for carrying on his trade or business.

We do not think that an automobile as used by this debtor partly for carrying him from place to place on business, at times carrying his tools and materials, and partly used for himself and family for pleasure comes within the contemplation of the statute as an implement, and therefore it is not exempt from levy and execution under Section 11725.

Under Section 11726, General Code, a person who is the head of a family and is engaged in agriculture, may hold exempt from execution:

‘ ‘ One horse, or one yoke of cattle with the necessary gearing therefor, and one wagon.”

But the defendant in this case is not a farmer, and these sections relating to exemptions must be strictly construed.

He can not claim this automobile is exempt in lieu of a homestead under Section 11738, General Code, because at the time that the judgment was rendered and the levy made on the automobile he and his wife were the owners of a homestead and living therein, although the same was encumbered by mortgages for more than its value. The status of the parties and their right to claim the property in lieu of a homestead are to be determined at the time of the judgment and levy. Nixon v. Vandyke, 2 C. C., 63. The defendant and his wife having conveyed their homestead after the levy was made on the automobile, they can not claim under this decision to hold it in lieu of a homestead, because the right to claim the property, was fixed as of the date of the levy, at which time they did own a homestead.

For the reasons stated we conclude that the judgment of the common pleas court should be reversed.


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    DETERMINATION OF THE EFFECT OF ELECTION BY A WIDOW NOT TO TAKE.
    Court of Appeals for Knox County.
    Clifford Blocher et al v. Ida Blocher Trick et al.
    Decided, October 25, 1917.

      Wills — Trust Created in Favor of Widow of Testator — Renunciation by Her of Provision for Her Benefit — Accelerates a Division of the Property Among the Devisees.

    Where a widow elects not to take under the will of her deceased husband, which creates a trust in her favor, her renunciation, in the absence of any other disposition of the property covered by the said trust, accelerates the enjoyment of the property by the remaindermen, sulbjeet to the dower interest of the widow therein ■but without terminating another independent trust created by said will.

      Harry W. Koons, for plaintiff.

      L. C. Stillwell, contra.
   Houck, J.

This is an action in partition which was originally commenced in the common pleas court of this county, and is here on appeal from the judgment of that court.

While the action is one in partition, yet the question for determination by this court is as to the true construction of items 2 and 3 of the last will and testament of John M. Bloeher, deceased. 'These items read:

“Item 2. I desire the home property, business building and flats located at corner of High and Sandusky streets, in Mt. Vernon, Ohio, to remain in my name, as a part of my estate, for a period of ten years, unless my wife should die sooner, and desire that the same shall be managed by my executors hereinafter named, and from the proceeds arising therefrom, should the same be sufficient, and if not then from any property that I may leave, I direct my said executors to pay to my said wife, Malinda Bloeher, the sum of three hundred dollars each and -every year during her natural life, the same to be paid monthly, the same to be in lieu of her dower interest and distributive share in my estate.
‘ ‘ Item 3. At the end of said ten years, or at the death of my said wife, should she die before that time, I direct that my said executors shall sell said real estate, and from the proceeds arising therefrom divide the same share and share alike among my living children, or those that are living now, namely, Harry C. Bloeher, Ida Bloeher Trick, Bird Dixon, Clifford Bloeher and Grace Rawlinson, and should any of said children die before the disposition of said property, then I desire that the children of any child so dying shall have the share of the child dying. However, it is my will, and I hereby direct that the share from the proceeds of said property going to my son Harry C. Bloeher shall be kept and managed by said executors, and the proceeds from the same be paid to my said son, and at the death of my said son Harry C. Bloeher then I direct that said executors shall pay the said amount so held in trust for Harry C. Bloeher to his two children share and share alike.”

So far as the fact’s in this case are concerned they were submitted on an agreed statement of facts entered into by and between the parties to the suit. We think it necessary to refer to but two of-them, because for a proper determination of this case it is not necessary to consider more than these two, namely, that Malinda Bloeher, the widow of John M. Bloeher, elected not to take under the last will and testament of her said husband, and, second, that all of the allegations in the petition of plaintiff are true.

The first question to be determined is with reference to the proper construction to ibe placed upon item 2 of said will, in view of the election of the widow of John M. Blocher not to take under the provisions of his will. We must determine whether or not the renunciation of the widow has the effect of accelerating the enjoyment of the remainder-men.

It was a legal right extended to Malinda Blocher, the widow of John M. Blocher, to refuse to take under the provisions of his will, .and in our judgment this renunciation on the part of the widow terminated the trust created in item 2 of the last will and testament of John M. Blocher, deceased, and such act on the part of the said widow accelerated the enjoyment of the devisees, because in the absence of any other disposition the property described in said item 2 passed intestate to the children of the testator, and said children -took the property devised to them in item 2 as intestate property, subject, however, to the dower interest of the surviving widow therein.

The next question that arises is as to whether or not the claim of counsel for Harry C. Blocher is well taken, namely, that by reason of the termination of the trust created in item 2, by the failure of the widow to take under the will, that thereby the trust created for Harry C. Blocher also becomes inoperative. 'To this doctrine and theory we can not subscribe. The trust estate created for the benefit of Harry C. Blocher was independent and separate from any other provision contained in the will of John M. Blocher, and, as a matter of law, we find the trust estate created therein is not terminated.

Thus it must follow, from what we have already said, that in our judgment the plaintiffs are entitled to the relief prayed for in their petition, and partition is hereby granted, and this cause is hereby remanded to the common pleas court for execution of the judgment herein entered, and for further proceedings as required by law.

Powell, J., and Shields, J., concur.


author: Gorman, J.

text:
    PROVISIONS OF SECTION 12001 OBSOLETE AS TO WIVES MARRIED SINCE 1887.
    Court of Appeals for Hamilton County.
    Frank A. Dillingham v. Viola Dillingham et al.
    Decided, December 3, 1917.

      Husband and Wife — Ho Authority for Appointment of a Receiver — To Preserve the Property of a Married Woman as Against Her Husband — Construction of the Married Woman’s Act — Jurisdiction of the Court of Domestic Relations.

    Section 12001, providing for an injunction against a husband upon petition of bis wife, restraining bim from wasting or squandering or converting to bis own use property beld by ber and bim in bis and ber own right, has no application to women married since the passage of the married woman’s act of 1887. As to such women said act is obsolete, and an order appointing a receiver to manage and control the separate property of a woman married since 1887 is without force or effect.

      Dickerson, Black & Dickerson and J. W. Peck, for plaintiff in error.

      Littleford, James, Ballard & Frost, contra.
   Gorman, J.

The defendant in error on April 25, 1917, commenced an action in the Common Pleas Court of Hamilton County against the plaintiff in error, Frank A. Dillingham, her husband, making the Market National Bank, Louis G. Pochat, the Security Savings Bank & Safe Deposit Company and Anna M. Maloney parties defendant. Her action was brought under Section 12001, General Code, under favor of which section she alleged in her petition that she and Frank A. Dillingham were married on November 10, 1908; that she is entited in her own right ,and is the owner of a part of and share in the business carried on in the name of Frank A. Dillingham in the city of Cincinnati, which business is that of the manufacture and sale of a proprietary medicine called “Plant Juice,” which is now .and has been widely and extensively sold in drug stores throughout the entire United States. She further says that her husband, from habitual intemperance and profligate habits is about to waste and squander the said property .and business and the profits thereof, to a part of and a share in which she is entitled in her own right; and that he is proceeding to and is about to proceed to fraudulently convert the entire business and profits therefrom to his own use for the purpose of placing them beyond her reach and depriving her of their benefit. She further averred in her petition that the other defendants, the Market National Bank and others, have in their possession and under their control certain moneys and property belonging to said business, to a part of which she is entitled in her own right. She prays in her petition that a temporary restraining order issue restraining the defendant from disposing of or otherwise interfering with the said business, its moneys or credits, choses in action or property, and restraining the defendant from in any way transferring, delivering or turning over to any person whomsoever any money property or security in their hands in the name of or being held for Frank A. Dillingham, or the .Dillingham business, or the Plant Juice business. She further prays for a restraining order against the other defendants from permitting Dillingham or any other person from having access to any safe deposit box in the name of Frank A. Dillingham or the Dillingham business or the Plant Juice business, until further order of court. And she prays for a further restraining order restraining Anna M. Maloney from permitting Frank A. Dillingham to in any wise interfere with or dispose of the said business or any of the property, moneys, credits and choses in action of the said business, and from paying over or delivering to said Dillingham any moneys or the equivalent thereof arising from the proceeds or profits of the above described business. And she further prays that upon a final hearing the temporary restraining order asked for may be made permanent. She further prays the court to appoint a receiver to manage and control'the above described business for the benefit of herself, and prays the court to make such other order in the premises as it deems just and proper.

Upon the filing of this petition the court made an order dispensing with the giving of notice to the defendant, as required by the rules of court upon the application for a restraining order, upon the grounds that the giving of the notice would defeat the purpose of the injunction. Defendant, Dillingham, was not in the jurisdiction of the court, and notice was published for him according to the law.

Upon the day of the filing of the petition a temporary restraining order was issued as prayed for in the petition, and the business carried, on in the name of Frank A. Dillingham was thus prevented from being sold, disposed of or carried on.

Two days after the filing of the petition, without the presence of the defendant and without any service being made upon him, the court of common pleas .appointed a receiver of the business described in the petition, and in the entry appointing the receiver it was recited that Messrs. ~W. W. Dickerson and Robert Black appeared in court as the attorneys of Frank A. Dillingham. The court fixed the amount of the receiver’s bond at $30,000 and ordered the entire business and assets of Dillingham to be placed in the hands of the receiver .and directed the receiver to carry on the business and employ the necessary help and purchase the necessary material therefor, and to do all things necessary to prosecute the business. Publication of constructive notice for Dillingham was then made, as required by law.

Counsel for Dillingham filed .a petition in error in the court of appeals, from the judgment appointing the receiver, said cause being numbered on the docket of this court No. 1101. Upon application for a stay of execution in this court an order was made staying the appointment of the receiver upon the defendant Dillingham giving bond in the sum of $50,000, and further proceedings in the common pleas court were thereupon stayed.

Thereafter in the common pleas court a hearing was had at great length. A great mass of evidence was adduced before the court, and on the 31st of July, 1917, the court reappointed Frank C. Zumstein receiver of all the business, property and assets of the Dillingham business and of Frank A. Dillingham, and the Plant Juice business. No other relief was asked in the petition except an injunction to restrain the defendant Dillingham from disposing of the property and restraining the other defendants from permitting any of the property in their hands belonging to Dillingham to be taken and disposed of; and the further prayer for the receiver.

In the first appointment by the court of common pleas the receiver was designated as a temporary receiver; the last appointment merely provides for the appointm.ent of a receiver without any limitation as to the time of the receivership, and without any reservation for any further order of court. The predicate upon which the court based this order for the appointment of the receiver was that Dillingham, plaintiff’s husband, had been wasting and squandering and was about to waste and squander the assets and profits of the said business, one-half of which belonged to the plaintiff, by reason of habitual intemperance and profligate habits, and was proceeding to and was about to proceed to fraudulently convert the half of the said business and profits aforesaid, belonging to the plaintiff as aforesaid, to his own use for the purpose of placing them beyond the reach of the plaintiff and depriving her of their benefit. And the court further found that all of the allegations of the plaintiff’s petition were true and that the plaintiff was entitled to the relief prayed for in her petition. The receiver was authorized and directed to carry on the business, employ all the necessary help, purchase all the necessary materials, and to do all things necessary to carry on and promote the business, and to take charge of all the property, and out of the profits thereof to pay one-half to the plaintiff Yiola Dillingham. And all persons having any property or choses in action in their possession belonging to said Frank A. Dillingham or to the business, were directed to turn over the same to the receiver. The order was quite a sweeping one, and dispossessed Dillingham entirely of any dominion or control over the property or business, and placed it in the hands of the receiver without limit as to time, and without limit as to authority to carry on the business.

Dillingham excepted to this order, and prosecutes error to this court in proceeding No. 1171 on the docket of this court.

We have, therefore, two error cases in this court growing out of the original litigation brought by the defendant in error.

It is unnecessary to state anything further with reference to the first ease, No. 1101, inasmuch as the purpose of that proceeding was merely to stay the execution of the judgment entered in the common pleas court appointing a receiver temporarily. That proceeding, having been stayed, all the matters necessary to be considered in this error proceeding will be considered in the last proceeding brought herein, No. 1171.

It appears from the record in the case that previous to the bringing of this action in the common pleas court for the appointment of a receiver and for an injunction to restrain Dillingham from disposing of the property, the defendant in error, Viola Dillingham, brought an action in the common pleas court, in the division of the court of domestic relations, pnaying for alimony, against the defendant Frank A. Dillingham. This suit was filed in the court of domestic relations September .16, 1916, more than seven months before the commencement of this action for the appointment of a receiver. In her petition in the common pleas court, division of domestic relations, plaintiff set out, infer alia: that the defendant had for many years been engaged in the manufacture in the city of Cincinnati of a proprietary medicine called “Plant Juice,” which is widely and extensively advertised and sold in drug stores throughout the entire United States. She averred that defendant was possessed also of large quantities of valuable stocks and bonds, and also of a very large number of extremely valuable diamonds and other personal property. She also set out in this petition for alimony that defendant had been guilty of wrongdoing in many places throughout the United States, and that he had 'been guilty of gross neglect of duty and that he had remained away from the plaintiff for a long time and refused to communicate with her. She further alleged that he had been guilty of habitual drunkenness for a number of years past. She averred that he had an interest in the business of the manufacture and sale of said proprietary medicine known as Plant Juice, and that he was about to dispose of and encumber same so as to defeat her from obtaining alimony. She prayed for temporary alimony during the hearing of the cause, and for her expenses during the prosecution of this suit; and that upon a final hearing a reasonable alimony be allowed out of the property of said Frank A. Dillingham. She further asked that an injunction issue restraining Dillingham from disposing of any property or of the business known as “Plant Juice.”

A temporary restraining order was issued by the judge of the court of domestic relations without bond.

In no place in the petition of the plaintiff for alimony did she aver that she had any interest in the business known as ‘ ‘ Plant Juice,” but if she does not state specifically that the business and property belonged to the husband, Frank A. Dillingham, the averments of the petition would lead one to infer that she claimed he was the owner of this business and that she had no interest therein except .as the wife of Frank A. Dillingham.

The question to be determined in this case turns upon the construction and application to the facts in this case of. Section 12001, General Code. That section reads as follows:

“A married woman may file a petition in the common pleas court, setting forth that from habitual intemperance, or other cause, her husband is about to waste and squander the property, legal or equitable, money, credits or choses in action, to which she is entitled in her own right, or a part thereof, or is proceeding, or about to proceed, fraudulently to convert them, or a part thereof, to his own use, for the purpose of placing them beyond her reach, and depriving her of their benefit, whereupon the court may enjoin him from disposing of, or otherwise interfering with, -such property, money, credits or choses in action, appoint >a receiver to manage and control them for the benefit of the wife, .and also make such other order in the premises as it deems just and proper. On filing the petition, a provisional injunction also may be allowed as in other cases, with or without bond at discretion. Such petition shall be'filed in the county where the petitioner resides, and the husband made a party dedendant, as in the case of a petition for a divorce.”

It is claimed by plaintiff in error that under this section the common pleas court has power and authority to- appoint a receiver not only for the property owned by the wife in her own right, but also for the property of the husband if the same is in any way joined with that owned by the wife.

At the outset we may say that a careful consideration of the evidence in this case satisfies us that it is not sufficient to establish the ownership of Viola Dillingham to any of the property claimed by her in the petition filed in the court of common pleas. We think the evidence is insufficient to establish her ownership and title to any of the property. The business was established by Dillingham many years ago. She claims that in 1912, at Houston, Texas, her husband orally told her that he would give her a half interest in the business. It is claimed that this statement of the husband was heard by a man by the name of Briscoe, who was acting in the capacity of a private secretary for Mrs. Dillingham. Briscoe on the witness stand testified that he heard this conversation; but the facts and circumstances of his employment and service with the Dillinghams would lead us to believe that he was not present at the time the wife says this conversation took plaee. Furthermore, it was shown on the trial of the case that Briscoe had been convicted twice, at least, in the courts; and upon being questioned as to his conviction he denied it. But the proof adduced by counsel for Dillingham established his conviction. Pending the hearing of the case after this proof was adduced Briscoe fled the state and has not since been heard from. More than a year after the time when the wife claims that Dillingham gave her a half interest in this property, she wrote him a letter while he was in San Francisco. This letter is dated March 17, 1913. In this letter, among other things, she says:

“This is another holiday, but holidays come and holidays go and I never know anything about them. It is getting to be rather a treadmill sort of thing, not that I mind “that in the least if I was getting anything out of it. I like to work and would not mind the daily grind, also evenings and Sundays, too, if I had any sort of share in it. Of course I do not know the workings of your brain, but it seems to me the many protestations of your love, etc., lack any convincing weight. I am giving every minute of my waking hours to the business; it seems only fair that I should share equally.”

The husband denied that he ever had such conversation with her as that testified to by her, and the evidence disclosed that she never drew any money from the business, except upon Dillingham’s order and Dillingham’s cheeks. She had nothing to do with establishing the business; none of her individual or private property or funds went into the business, and the conduct of Dillingham and the conduct of the business, the testimony of numerous witnesses, the letters that passed between the parties, and the conduct of Mrs. Dillingham herself appear to us to conclusively rebut the claim that she was given an interest in this business

But, assuming for the purposes of the case that the facts in the case do establish that she was given an interest in this business, then we are to consider whether or not under Section 12001 the court of common pleas was authorized and warranted in appointing a receiver for this entire business because the wife was an owner of one-half interest therein.

It will be interesting to trace the history of Section 12001, General Code. This section appears under the subdivision of Divorce and Alimony, Chapter 3, Division VII, Title IV, of the General Code of Ohio, and it has been placed in this chapter and subdivision since the codification in 1880. It appears to have been considered by the codifier, and also by the Legislature when it passed this enactment, as a proper proceeding under the chapter for divorce and alimony.

Under the Constitution in 1802 there was no provision made for divorce and alimony, and it was the practice during the early days 'of the Legislature for that body to pass a special act providing for the divorce of married people. The Supreme Court in the case of Bingham v. Millar, 17 Ohio, 445, finally called a halt on this practice by holding that the granting of divorce by the Legislature was a usurpation of judicial functions by that body.

On January 6, 1824 (22 O. L., 341), the General Assembly passed an act concerning divorce and alimony and vested in the Supreme Court of the state sole jurisdiction of granting divorces when .any cause existed for a divorce as mentioned in that act. There was also a provision made in the act for the custody and maintenance of children and the allowance of alimony in a proper ease. There was no provision for a suit for alimony independent of an action for divorce.

On March 6, 1840 (38 O. L.), the Legislature passed another act concerning divorce and alimony, and repealed the act of January 6, 1824. In this latter act of 1840 the 'Supreme Court was again given sole cognizance of granting divorces for the causes enumerated in the act; but there was no provision made for alimony independent of the action for divorce and alimony. In other words, alimony could be granted in a divorce proceeding but not in a separate proceeding

On March 2, 1846, the Legislature passed an act to amend the act concerning divorce and alimony, passed March 6, 1840 (44 O. L., 115). This act was the original progenitor of Section 12001, General Code. It reads as follows:

“Be it Enacted by the General Assembly of the State of Ohio, That any married woman, by her next friend, may file her bill in chancery in the Supreme Court, or court of common pleas, setting forth that her husband, from habitual intemperance, or any other cause, is about to waste and squander the property to which he is entitled in her right” (underscoring by court), “or any part thereof, or is proceeding fraudulently to convert the same to his own use, for the purpose of placing it beyond her reach, and depriving her of the benefit thereof; and the court, upon the hearing of the case, may enjoin the husband from disposing of, or otherwise interfering with such property, and may appoint a receiver, to manage and control the same, for the benefit of the wife; and may also make such other order in the premises as they may deem just and proper. ’ ’

Some slight changes have been made in the verbiage of this act in the codification of 1880, the most important change being that whereas in the original act the property mentioned is that ‘‘to which he is entitled in her right,” by the codification of 1880 that language is changed so as to read, “the property, legal or equitable, money, credits or ehoses in action, to which she is entitled in her own right.”

Manifestly the purpose of this act of 1846 was to protect a married woman in the enjoyment of her own separate property. The rule of the common law at that time prevailed in Ohio, that a woman upon her marriage lost her entire entity; her existence and her life were merged in that of her husband. lie was everything; she was nothing. She lost her name; all of the personal property which she had in her own right, and her own name became his except choses in action, and they became his whenever he saw fit to reduce them to his possession. She had no right to bring an action in her own name except as provided by statute. 'She could not enter into any contractual relations. She could not sell or dispose of her property without her husband’s consent and without him joining with her. Her personal earnings belonged to her husband and he could subject them to his possession.

But this had beeh the state of the law from time immemorial. Not only did her person belong to her husband, but all her property. She was as much a slave as though he had bought and paid for her and owned her absolutely, and all her belongings.

The Legislature from time to time, during these middle and dark ages of Ohio, was’ endeavoring to ameliorate to some degree the condition of the married woman; and it is evident that the purpose of this legislation was to give her some benefit and enjoyment of her separate estate — the property that came to her either by inheritance or gift, or by her own earnings when she was a femme sole — and to prevent an intemperate and wasteful husband of dissipating her property ,and depriving her and her children from the benefits thereof. She could not bring a suit in her own name at that time, as the act plainly shows, but it would have to be brought by her next friend; and it had to be brought in chancery, in the Supreme Court or the court of common pleas. No one will question the justice and equity of this humane provision of the Legislature for the protection of the married woman. This act continued to be the law down to the present time, with the exception that now she may bring an action in her own name and is not obliged to resort to her next friend.

In 1851, March 24 (49 O. L., 102), jurisdiction was conferred upon the courts of common pleas of the state to grant alimony independent of divorce, for the several grounds set out in the act, and it is provided therein that the proceedings in an action for alimony shall be conducted in all respects as in cases for divorce. This is the first time courts of common pleas were given jurisdiction to hear and determine actions for alimony independent ef actions for divorce.

On March 11, 1853 (51 O. L., 377), the Legislature passed an act concerning divorce and alimony, which act was to take the place of all the previous acts relating to divorce and alimony. In this act, under Section 14, is set out the provision of the act relating to a married woman bringing an action for the appointment of a receiver for her separate, property. The language of Section 14 is substantially the same as the language employed in the original act, passed March 2, 1846, with this exception: it relates to property, moneys and credits to which ¿he is entitled in her own right. The Legislature having changed the phraseology from the language employed in the original ace as being property to which he was entitled in her right, recognized evidently that it was her property to which she was entitled in her own right, and related to her separate property. This act repealed all previous acts touching divorce and alimony and also the act providing for an action for a receiver of the wife’s separate property; but the new act embraces not only all the matters covered by the previous legislation on the subject, but additional legislation also.

This act was again amended April 15, 1857 (54 O. L., 131). Section 14 of the original act — now Section 12001, General Code — was not changed or amended by this act.

From 1857 to 1880 there was no change made in the divorce •. and alimony statutes.

In 1880 the codifying commission collected all these previous provisions relating to divorce and alimony under Chapter 6, Title I, Division YII of the Revised Statutes, Sections 5689 to 5706 inclusive. In this chapter is found Section 5705, which was originally Section 14 of the act of March 11, 1853, and is Section 12001, General Code, as it now exists.

No change was made in this section from 1880 down to the present time, and the codifying commission of 1910, and the Legislature which adopted and ratified the acts of the commission, left it substantially as it was then in force.

In 1880 when the codifying commission collected all the laws relating to divorce and alimony, it was necessary to retain Section 12001 in the General Code, because at that time a married woman could not sue or be sued in her own name; she could not hold her own property in her own name, although the Legislature at that time had made quite an advance in emancipating woman from the enthrallment of her husband.

In 1887, an act was passed which practically emancipated a woman from the control of her husband. She has since that time a right to contract .and be contracted with as though unmarried; she has a right to hold in her own name and for her own use all her separate earnings acquired by her, or by inheritance, or by gift, or in any other legal manner, and is free from the rights of her husband and from his control and subjection as to all of her property. She has a right to enter into business as though unmarried, and in any manner to enter into any obligation she may desire, as though she were a femme sole; she can not by contract between herself and husband change the legal status of their married relations. See Sections 7996 to 8004, inclusive, General Code, Title VI, Chapter 1, Domestic Relations. The only interest he has in her property during her life is a contingent right of dower in her real estate.

The state of the law at the present time, therefore, is that the separate property of a married woman is not in possession or under control of the husband unless she sees fit to give it to him. We think the proper construction to place upon Section 12001, General Code, is that it was for the protection of married women at a time when they had no right to hold their own separate property and no right to bring an action in their own names, or to make contracts in their own names; but since the passage of the married woman’s act, in 1887, there is no occasion for the use of Section 12001, except for the purpose of preserving such property of a married woman as came to her husband by marriage prior to the passage of the married woman’s act of 1887. The codifying commission of 1880, and the commission of 1910, no doubt retained this section of the Revised Statutes in the General Code because they realized that there was at those times and there still may be oases in which a woman was married prior to 1887 and 'brought to her husband personal property and choses in action which was her separate property and which by marriage passed to his dominion and his possession and control; and in order to protect her in the enjoyment of her rights in those properties this section is retained in the statute laws of the state.

It has no application, in our opinion, to the cases of women who have married since the passage of the married woman’s act in 1887, because since that time no condition can arise whereby .an action could be brought in the court of common pleas under Section 12001, General Code, by a woman who has married since the passage of the act of 1887. So far as women who have been married since the passage of the married woman’s act in 1887 are concerned, this section is obsolete and can have no .application to them or their affairs. It would be unnecessary for such a woman to bring such action. In fact, she could not set out a state of facts which would confer upon the court jurisdiction to bring an action, because her property would not pass to her husband by her marriage, as it did before the passage of the married woman’s act of 1887.

In the ease before the court Mrs. Dillingham claims that she has separate property in a one-half interest in this business, and that this was acquired in 1912. It was not acquired by her prior to 1887, and therefore there appears to be no reason for the application of the rules laid down in Section 12001, General Code. If she has .an interest in this property she may bring an action against her husband to secure this interest without having a receiver appointed. If she were a partner she could come into court and ask for a dissolution of the partnership, a winding up of the business and the appointment of a receiver to take charge of the business and sell it for the benefit of the partnership. The record does not disclose .a state of facts which would warrant the court in the application of Section 12001, General Code.

"We hold that this section can apply only to eases of married women whose property passed into possession of their husbands prior to the passage of the married woman’s act in 1887, and whose husbands took -possession of their property by virtue of the rules of common law, before the wife was emancipated from the husband.

In any event the court of common pleas was not warranted in appointing a receiver for rank A. Dillingham’s property under Section 12001, General Code. There is no warrant or authority under this section for taking the husband’s property out of his hands and placing it in the hands of a receiver. The only warrant and authority under that section is for the appointment of a receiver for the wife’s property. Even if the court were authorized to appoint a receiver under Section 12001, it exceeded its authority in appointing a receiver for the entire property— the husband’s property as well as that claimed by the wife.

It appears from the record in this proceeding that while this. ease was pending in the court of common pleas, and before the judge of the court of common pleas who heard the matter took up the consideration thereof, counsel for Dillingham, plaintiff in error, made application and motion to the court to send the cause to the judge presiding in the court of domestic relations for the reason, as he claimed, that there was at that time pending an action for alimony, and that all the relief prayed for in this case could be granted by the judge of the court of domestic relations, in the alimony case. It appears from the record that the judge refused to send the cause to the judge presiding in the court of domestic relations; and it further appears from the record that the judge who presided in the court of domestic relations was of the opinion that he had no jurisdiction to hear and determine this action.

The view we take of this matter is that the judge of the court of common pleas presiding in the court of domestic relations should have taken this case and heard and determined it. This Section, 12001 General Code, is a part of the chapter relating to divorce and alimony, and in view of the fact that the judge of the court of common pleas who presides in the court of domestic relations has jurisdiction and special authority from the Legislature to hear and determine all matters relating to divorce and alimony, this case should have been sent to that particular judge.

We think it was error on the part of the common pleas court judge who heard this ease not to have sent the cause to the judge presiding in the court of domestic relations; but we are in doubt as to whether or not such error was so prejudicial as to warrant a reversal of the judgment, if there were no other errors in the record.

For the reasons .above stated the judgment of the court of common pleas will be reversed.

Jones, P. J., and Hamilton, J., concur.


text:
    SCHOOL PROPERTY CLAIMED TO HAVE BEEN ABANDONED.
    Court of Appeals for Knox County.
    Ira Wheaton et al, as Members of the Board of Education of Union Township, v. George H. Ferenbaugh.
    Decided, October 25, 1917.

      Abandonment — Relinquishment Must be Intentional — Not Shown by Mere Non-Use for a Period Less Than the Statute of Limitations.

    Suspension of school for a period of three years, in the school district in which the school property involved in the instant case is located, does not constitute abandonment on the ground of non-user.

      Charles L. Bermont, Prosecuting Attorney, for plaintiff.

      F. O. Levering and P. A. Berry, contra.
   Houck, J.

This is an appeal case and is prosecuted to this court from the common pleas court of this county. 'The basis of the action is one for injunction, and was submitted to this court upon an agreed statement of facts.

We do not deem it necessary in order to decide the real question involved in this ease to set out in this opinion the agreed .statement of facts, as we think it sufficient to say that .applying the propositions of law pertinent and applicable to the .facts agreed upon, it leaves but one question to be determined by the court, which is a question of fact, namely, as to whether or not said board of education has ceased to use said premises for school purposes.

An examination of the agreed statement of facts shows that the school in the school district in which said premises are located has been suspended for about three years by the board of education, and the question for solution is, does this fact constitute such a non-user as would be held to be an abandonment of said school property for school purposes which would warrant, justify and authorize the defendant to take possession of said premises ?

Abandonment, as we understand it, means an intentional relinquishment of .a known right, and to constitute abandonment there must be an intent and an actual failure to use. Non-user alone, at least short of the period of the statute of limitations, unless otherwise provided by contract, is not sufficient, as we deem it, to .prove an abandonment; but non-user, if continued for such a length of time, coupled with other acts of a character which would within themselves tend to show an intention on the part of the owner not to resume or repossess himself of the thing whose use is relinquished, may constitute an abandonment.

Applying these rules to the conceded facts in this ease, we are bound to find and do find that the claim of the defendant is not well taken, and therefore the plaintiff is entitled to the relief prayed for in his petition.

Judgment for plaintiff as prayed for in his petition. Injunction made perpetual. This ease is remanded to the common pleas court for execution as to costs.

Powell, J., and Shields, J., concur.


author: Chittenden, J.

text:
    RIGHTS OF INJURED RAILWAY EMPLOYEES WHO ARE MEMBERS OF A RELIEF DEPARTMENT.
    Court of Appeals for Franklin County.
    Before Judges Chittenden, Kinkade and Richards, of the Sixth District.
    Russell L. Blaney v. The Baltimore & Ohio Railroad Company.
    Decided, February 14, 1917.

      Railways — Injured Employee May■ Sue — Notwithstanding His Membership in a Relief Department — Extent to Which Public Policy as Announced by the Supreme Court — Has Been Changed by Subsequent Legislation.

    A contract of a so-called relief department of a railroad company can not preclude an employee of such railroad company, who is a member of the relief department, from maintaining an action to recover damages for injuries sustained through the alleged negligence of the railroad company, but such a suit to recover damages, unless terminated as provided by the regulations of the relief department, will preclude a recovery under the relief department contract.

      F. S. Monnett, for plaintiff in error.

      Frazier & Frazier, contra.
   Chittenden, J.

Error to the court of common pleas.

This action was broug'ht to recover a sum claimed to be due as benefits by virtue of membership in the relief department of the defendant company. A demurrer was sustained to the petition, and thereafter an amended petition was filed, to which a demurrer was also sustained, and plaintiff was given leave to file a second amended petition on or before the 16th day of January, 1915. On April 5, 1915, no further leave of court having been ashed or obtained, a second amended petition was filed. 'The defendant moved to strike the second amended petition from the files for the" reason that it was filed without leave, and because it reiterates, as a first cause of action, the same averments, without addition thereto, which had theretofore been adjudged by the court as failing to state ,a cause of action; also, on the ground that the second cause of action attempted to be set up was not a proper or legitimate pleading in the alternative. The motion to strike the second amended petition from the files was sustained and the court proceeded to enter final judgment in the action, dismissing the petition of the plaintiff ,at his costs.

It is claimed here that the court erred in granting this motion, to strike from the files. ¥e find no abuse of discretion on the part of the trial court in granting this motion.

The case therefore presents itself in this court upon the question as to whether the court erred in sustaining the demurrer to the amended petition. This pleading, in substance, sets forth that on the 10th day of July, 1911, the plaintiff was employed as ,a yardmaster of the defendant company at or near Parkersburg, West Virginia. That at that time the defendant maintained .and operated a relief department and that the plaintiff was a member thereof. That he remained in the employ of the company from the 10th day of July, 1911, until the 6th day. of November, 1911, at which time he was injured through the alleged negligence of the defendant, which injuries resulted in the amputation of his right leg below the knee. That during the time of his employment the defendant had deducted from his wages, in accordance with the terms of the contract of employment and pursuant to the agreement of the membership in the relief department $5 per month as a premium. He .alleges that at the time of the injury hoth the plaintiff and defendant were engaged in interstate commerce. By reason of the contract between the plaintiff and the relief department the defendant was to pay benefits to the plaintiff for accidental injury, in the sum of $2.50 per day, not including Sundays and legal holidays, for the first fifty-two weeks, and after that time at the rate of $1.25 per day. It is further provided that the company shall furnish an artificial limb, the reasonable value of which the plaintiff alleges to be $100. Plaintiff says that the defendant has refused to pay'him any benefits or to furnish him with an artificial leg as agreed.

The petition further sets forth that he has performed all of the conditions of the contract upon his part to be performed, except that he did not strictly comply with the notice of injury to the defendant company, but he alleges that the defendant waived the condition of the rules and regulations of the relief department requiring formal proof of loss and injury, by tendering him one year’s benefit for his injury. He says, however, that the tender of benefits was conditioned upon his releasing the company from any liability under the contract that said company might be subjected to for the wrongful and negligent acts of the company in causing said injury, and also required the plaintiff to agree not to sue the company for the tort committed by the company, and to dismiss his cause of action then pending in the courts of "West "Virginia against the defendant company, for the reason that rule No. 53 of the regulations of the relief department precluded the plaintiff from recovering any benefits under his certificate of membership while suit was pending.

The amended petition contains the further allegation not contained in the original petition, that the suit brought by the plaintiff against the defendant in the courts of West Virginia to recover damages because of his injury, is now terminated against the plaintiff. He quotes from the regulations of the relief department provisions of Sections 52 and 53 as follows:

“In the event of disability or death from accidental injuries, the benefits herein promised shall not be payable or paid until there be first filed with the superintendent of the relief department releases satisfactory to him releasing the Baltimore & Ohio Railroad Company, and all other companies owning or operating its branches or. divisions, or company over whose railroad, right-of-way or property the said the Baltimore & Ohio Railroad Company, or any company owning or operating its branches or divisions, shall have the right to run, operate its engines or ears, or to send its employees in the performance of their duty, or any company whose employees are admitted to the privileges of this department, from all claims for damages by reason of such injury or death, signed by all persons who might bring suit for such damages, or those legally competent to release for them, and by the beneficiaries named in the respective applications.” (Section 52.)
‘1 Should suit be brought by a member, his beneficiary or legal representative, or for the use of his beneficiary alone or with others, against the Bkltimore & Ohio Railroad Company, or any company owning or operating its branches or divisions, or any company over whose railroad, right-of-way or property the Baltimore & Ohio Railroad Company or any company owning or operating its branches or divisions, shall have the right to run or operate its engines or ears or to send its employees in the performance of their duty, or any company whose employees are admitted to the privileges of this department, for damages on account of injury or death of such member, no benefits on account of such injury or death shall be paid, but all claims to such benefits under these regulations shall be forfeited, unless such suit be discontinued and all costs incurred by the defendant therein paid by the plaintiff before any hearing or trial on demurrer or otherwise. Should such a suit for damages on account of the death of a member be brought by any person claiming an interest other than those named above, the existence of such a suit shall prevent the payment of benefits on account of such death, and any payment by any of the companies above named of damages recovered in such suit, or determined by compromise, or of any costs incurred therein, shall operate as a release in full of- all claims against this department.” (Section 53.)

The plaintiff claims that the provisions of the above quoted rules are wholly void and against public policy so far as they purport to bar the plaintiff from his rights to the benefits claimed by him and as set forth in his amended petition.

A similar contract was construed by the Supreme Court of this state in P., C., C. & St L. Ry. Co. v. Cox, 55 O. S., 497. It was there held that such a contract was not prohibited by a statute of the state of Ohio enacted for the protection and relief of railroad employees. This act prohibited any railroad company from demanding, accepting or requiring any employee to enter into a contract with the company whereby such person stipulated or agreed to surrender or waive any right to damages against the railroad company arising from personal injuries, or whereby he agreed to surrender or waive, in case he asserted the same, any other right whatsoever. It was also held that the contract was not contrary to public policy. Tbe view tbe court took of tbe contract was -that it provided for optional remedies to the injured employee. That tbe effect of tbe contract was not to surrender or waive any right to damages against tbe railroad company, but only an agreement that be might either pursue bis remedy against tbe company for damages or accept bis stipulated benefits from the relief fund. Tbe court expressed tbe opinion that such contracts were not only not against public policy, but were in fact in accord with tbe wholesome public policy that favors tbe settlement of controversies and discourages litigation.

Tbe Supreme Court again bad tbe subject before it in tbe case of State of Ohio, ex rel, v. P., C., C. & St. L. Ry. Co., 68 O. S., 9. After a review of tbe authorities and a careful examination of tbe questions presented, tbe court cited tbe case of Railway Co. v. Cox, supra, and said: "We are still satisfied with that decision and believe it to be entirely sound.” Thus it will be seen that tbe Supreme Court of tbe state, after a careful review of tbe subject in two cases, definitely decided that relief department contracts of the character of the one under consideration are not opposed to the public policy of this state.

Therefore, it remains to determine whether tbe public policy thus announced has been changed by legislative enactment, and if so, to what extent. Tbe case at bar being one that arises out of interstate commerce, our attention is called to tbe federal enactments upon tbe subject.

Tbe plaintiff relies largely upon the provisions of Section 10 of tbe act of June 1, 1898, 4 Fed. Stat., 787. This section makes it a misdemeanor to require any employee to enter into a contract whereby such employee shall agree to contribute to a fund for beneficial purposes, and to release such employer from legal liability for any personal injury, by reason of any benefit received from such fund, beyond tbe proportion of the benefit arising from tbe employer’s contribution to such fund. This section of tbe United States statutes makes unlawful a contract undertaking to exempt tbe employer from legal liability for any personal injury, by reason of any benefits received under tbe terms of such contract.

Is the contract complained of in this case within the inhibition of the statute above cited? Section 52 does indeed provide that the benefits provided for shall not be paid until there is first filed with the superintendent of the relief department a release of the Baltimore & Ohio Railroad Company from all claims for damages by reason of such injury or death. But Section 53, which constitutes a part of the contract between the relief department and the member, contemplates that suit may be brought notwithstanding the provisions of Section 52, and it is provided that if suit be brought by a member no benefits on account of such injury shall be paid, but .all claims to such benefits shall be forfeited unless the suit be discontinued and all costs incurred by the defendant therein be paid by the plaintiff before any hearing or trial on demurrer or otherwise. It will be seen that this contract does not by its terms undertake to release the employer from legal liability for personal injuries received by the employee. We are not confronted in this case by a release signed by the plaintiff upon his receiving benefits from the fund, for no such benefit has been paid and no such release has been executed. It is entirely clear from the decided cases that if such benefits had been received and a release executed it would not bar an action against the defendant to recover damages.

Another act of 'Congress bears directly upon the construction to be given to this relief department contract. It is Section 5 of the act of April 22, 1908, Fed. Stat. Supp., 1909, page 585, and known as the second employer’s liability act. It reads as follows:

“That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void; provided, that in any action brought against any such common carrier under or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or to the person entitled thereto on account of the injury or death for which said action was brought.”

It will be observed that the section just quoted does not undertake to invalidate all contracts providing for the payment of benefits from a relief fund, but only enacts that they shall be void to the extent that the common carrier undertakes to exempt itself from any liability created by that act, and then makes provision that when suit is brought against such common carrier under any of the provisions of the act, the common carrier may set off any sum that it may have contributed to the relief benefit fund, and that may have been paid to the injured employee or to any person entitled thereto on account of such injury.

The effect of accepting benefits from the relief department of a common carrier, and of a release executed in pursuane thereof, was considered by the Supreme Court of the United States in the case of C., B. & Q. R. R. Co. v. McQuire, 219 U. S., 549. The case arose in the state of Iowa where the Supreme Court of Iowa previously had held in accordance with the decision of the Supreme Court of the state of Ohio in Railway Co. v. Cox, supra, namely, that a relief department contract was not invalid because payment of benefits was conditioned on a release of the company from liability, and that the effect of the contract was only to give the injured person an election of remedies. That he' might either bring suit for damages, or accept benefits under the contract, and that the election to pursue one remedy operated as a waiver of the other. Thereafter the Legislature of the state of Iowa passed an act to the same effect as Section 5 of the. federal statute above quoted. The Supreme Court of the state of Iowa held that this was a legislative announcement of a public policy different from that which had been announced by the Supreme Court, and that it was within the power of the Legislature to enact such a statute. The Supreme Court of the United States in reviewing the judgment of the Supreme Court of Iowa approvingly quoted this language of the Supreme Court of Iowa in construíng that act:

“The Legislature does not in this act forbid or place any obstacle in the way of such insurance, nor does it forbid or prevent any settlement of the matter of damages with an injured employee fairly made after the injury is received. On the contrary, the right to make such settlement is expressly provided for in the amendment to Code, Section 2071. The one thing which that amendment was intended to prevent was the use of 'this insurance or relief for which the employee has himself paid in whole or in part, as a bar to the right which the statute nas given him to recover damages from the corporation.”

The Supreme Court of the United States affirmed the judgment of the Supreme Court of Iowa, holding that a release from liability signed by the injured party upon receipt of benefits did not operate as a bar to an action brought to recover damages because of such injuries.

To the same effect was the decision of the Circuit Court of Greene County in this state in the case of P., C., C. & St. L. Ry. Co. v. Sheets, 15 C.C.(N.S.), 305, affirmed by the Supreme Court without opinion. In the latter ease Judge Allread carefully reviewed the authorities, including the case of Railway Co. v. Cox, supra, and held that the latter case was not, in view of Section 5 of the federal act above quoted, decisive of the construction of the contract then before the court.

It must be said that the decision of the Supreme Court in Railway Co. v. Cox, upholding relief benefit contracts as not against public policy because such contracts only provide for an election of remedies, is no longer an authority in so far as that public policy has been affected by the federal enactments above cited. The effect of those statutes is to render void ,any release of a common carrier from liability for damages, upon receipt of benefits from a relief fund. It is not apparent that the federal statutes have gone further. No statute provides that the bringing of a suit to recover damages resulting from injuries sustained because of the negligence of the common carrier shall not act as a bar to the recovery of benefits from the relief fund, and it would seem that the courts would not be justified in announcing any new or different public policy in that respect. The decisions of the ’Supreme Court in Railway Co. v. Cox and State, ex rel, v. Railway Co., supra, have only been modified to the extent indicated, ,and we therefore find no reason for holding invalid that portion of the contract under consideration which provides that if suit is brought no benefits shall be paid, unless such suit be discontinued and all costs incurred by the defendant therein be paid by the plaintiff, before any hearing or trial on demurrer or otherwise. This .portion of the contract in no way .attempts to abridge the right of the plaintiff to secure redress in the courts of the state. If he had recovered a judgment against the defendant in his action in the courts of West Virginia, it would hardly be claimed that he would be entitled also to recover in this action. In Railway Co. v. Cox, Judge Spear mentions this phase of the ease in the following language:

“Perhaps the point would be clearer if the party had, without accepting benefits, recovered against the company and then sought to recover also the benefits against the fund. No one could possibly suppose, in such a case, that his right to recover was absolute, or could in any aspect have a legal existence, or become the subject of a waiver, if the party’s own contract is to be observed.”

The fact that the .pleading states that the suit was terminated .against him, in no sense affects the legal aspect of the case. He was permitted to and did endeavor to maintain his legal rights in court.

There is much force in what was said by Judge Rogers of the common pleas court in passing upon this demurrer. He said:

“Although the contract is void and unenforeible by the defendant, the plaintiff having the option to treat the contract, as valid, because it is not void as to him, must, in order to entitle him to a recovery, perform those terms which are imposed upon him by the contract. Plaintiff can not repudiate the contract in part and stand upon the contract at the same time. If it was against public policy for the defendant to require the plaintiff to enter into a contract for beneficial insurance and to make a condition of the contract that in case suit was brought for an injury the benefits for such injury were to be forfeited, plaintiff must treat both the contract for benefits and the condition of its payifient as valid, or repudiate the whole contract, and will not be permitted to. repudiate a part and rely upon another part.”

The contract provides that in order to secure benefits after a suit is brought, the suit must be discontinued and all costs incurred by the defendant therein paid by the plaintiff, before any hearing or trial on demurrer or otherwise. The allegations of the amended petition do not show that the plaintiff has complied with this condition of the contract.

We find that the amended petition does not state facts sufficient to constitute a cause of action against the defendant, and that the judgment of the common pleas court was correct, and its judgment will be affirmed.

Kinkade, J., and Richards, J., concur.


author: Hughes, J.

text:
    RIGHT OF A LABORER. TO A LIEN UNDER. A CONTRACT WHICH HAS BEEN SUB-LET.
    Court of Appeals for Hardin County.
    Ropp v. Board of County Commissioners of Hardin County, Ohio, et al.
    Decided, November 17, 1917.

      Mechanic Lien of Sub-Contractor on Fund When Bis Principal Contractor Discontinues Worlc.

    A laborer who contracts to do and does perform certain of the labor, required in the construction of an improvement under a sub-contract with the principal contractor, is entitled to a lien upon the building fund in the hands of the owner, notwithstanding the principal contractor has sub-let to a third party, without notice to said laborer who continues his labor, that portion of his contract including, such labor, or has suffered the owner to contract directly with said third party for such portion of the improvement, even though a portion of such labor is performed after such third party has begun the discharge of his contract, he having received the benefit of such labor.

      Price & Price, for plaintiff.

      Donald F. Melhorn and Stickle & Cessno, contra.
   Hughes, J.

The board of county commissioners entered into a contract with Anstine & Connor for • the improvement of the Reigel Free Turnpike in Jackson township, Hardin county, Ohio, In August, 1915, Anstine & Connor entered into a verbal contract with Albert Ropp, the plaintiff, to do certain hauling for this improvement at .an agreed price of $4 per day. Plaintiff, in the execution of this contract, hauled on dates running from the 10th of August, 1915, to the 1st of September, 1916, which by the terms of his contract amounted in value to $158.95. Thirty-two dollars and thirty-five cents of this amount is claimed to have.accrued on work done after an alleged sub-contract had been entered into between Anstine & Connor and Dalton Hord for the sub-contracting of this same improvement.

The plaintiff filed proper notices and perfected a lien within the statutory time from the date of the'last hauling, but it is contended by the defendant Hord that this perfected a lien only for the $32.35 upon the theory that labor in the value of this amount was done while Hord was executing his contract, and that the balance was done under an independent contract between Anstine & Connor and the plaintiff Ropp.

This theory of Hord is presented as an issue by the averments of his answer, which are denied by the plaintiff.

Whether Hord be considered as a sub-contractor, undertaking to complete the work covered by the original contract between the commissioners and Anstine & Connor, or whether he be considered as an independent contractor with the commissioners, it maybe said that in any event what he undertook to do was to complete the work that was originally contracted to be done by Anstine & Connor.

It is clear that the plaintiff began the execution of his contract for hauling, and from all that appears in the evidence, he had no reason to believe that when he began his work in the spring of 1916 he was but completing the undertaking that he had originally contracted to do, no evidence being offered tending to show that he had any reason to believe that the work which he had already done in the execution of this contract should he considered as a past transaction, nor that the work he was finishing was to be paid for in any other manner than for the work which he had already done.

As was said by Judge Spear in the case of Vernon v. Harper, 79 O. S., 181:

‘£ The policy of the state with respect to the claims of laborers and material-men to be compensated for their work and material out of the structure to which their work and material have contributed is indicated by the statute as to liens and has been clearly defined in a number of decisions in this and other courts. The statute should be liberally construed in order to carry out the purpose of the General Assembly in its enactment, the legislation being highly remedial in character.”

Fallowing the thought expressed by this same jurist, at page 188, it may well be said that Hord finished the work that was to have been done by Anstine & Connor with the aid of this plaintiff who finished his labor, acting in good faith in compliance with his contract originally entered into with the principal contractor, and his contribution to the work thus accepted by Hord enabled him to complete the work contemplated by the original agreement.

To deny plaintiff the advantage of his outlay would be to permit the mere letter override and defeat the plain spirit and purpose of the statute.

Entertaining these views, we hold that the plaintiff is entitled to a lien on the fund for the full amount of his claim. A decree may be drawn accordingly.

Kinder, J., and Crow, J., concur.


author: Richards, J.

text:
    SHIPPER. LIABLE FOR. BALANCE WHERE LESS THAN AUTHORIZED RATE WAS CHARGED.
    Court of Appeals for Lucas County.
    The New York Central Railroad Company v. Frederick O. Peak.
    Decided, June 25, 1917.

      Railway Tariffs — Carrier May Recover Balance — Where Less than Legal Rate Was Charged — Review on Weight of the Evidence of Final Judgments hy Justices of the Peace.

    1. The ■ Interstate Commerce act having been adopted to prevent unjust discrimination in freight rates, the rate of the carrier duly filed pursuant to that act is the only lawful charge and is binding alike on the shipper and carrier.
    2. The shipper is charged with notice of the regular fixed tariff freight rate duly filed, and a misquotation of the rate by the carrier’s agent will not relieve the shipper from paying the tariff rate although he has made the shipment and paid the quoted rate therefor. ! ^
    3. By virtue of the provisions of Section 10361, General Code, final judgments rendered before .a justice of the peace, whether tried with or without a jury, may he reviewed on the weight of the evidence by proceedings in error.

      Doyle, Lewis, Lewis & Emery and Paul W. Alexander, for plaintiff in error.

      E. H. Ray, contra.
   Richards, J.

Error to the court of common pleas.

This action was commenced by the New York Central Railroad Company as successor of the Lake Shore & Müchigan Southern Railway Company, before a justice of the peace, to recover an amount claimed to be due it from the defendant by reason of an undercharge of freight made by it in a shipment of fifteen horses from Boswell, Indiana, to Sylvania, Ohio. At the conclusion of the trial before the justice of the peace, a motion was made by the plaintiff for a directed verdict in its favor, which was overruled and an exception taken. The jury returned a verdict for the defendant and judgment was rendered thereon. A bill of exceptions was taken setting forth all of the evidence, ,and error was prosecuted to the court of common pleas, which court affirmed the judgment rendered in favor of the defendant.

On the trial of the case the plaintiff introduced in evidence the printed tariff of freight charges from Boswell, Indiana, to Sylvania, Ohio, showing the rate to be thirty-two cents per hundredweight when the shipment was made via Sandusky over the L. E. & W. Railway, and thence to Sylvania over the L. S. & M. S. Railway. It also appears that shipment could be made, and in this case in fact was made, via Fostoria over the L. E. & W. Railway, and thence to Toledo over the T. & O. C. Railway, and to Sylvania over the L. S. & M. S. Railway. On this latter route the joint rate was thirty-two cents per hundredweight to Toledo, and then there was an additional rate from Toledo to Sylvania of seven and one-half cents per hundredweight. ■ The defendant desired to ship via Fostoria and Toledo and was informed by the companies’ agent that the rate was thirty-two cents the same as if the shipment had been made via Sandusky. But the agent was plainly in error in giving this rate, as it omitted the regular tariff rate, as shown by the, schedule on file with the Interstate Commerce Commission, of seven and one-half cents per hundredweight from 'Toledo to Sylvania. This action is to recover this latter charge of seven and one-half cents per hundredweight.

Some contention was made that the railroad official, identifying the schedule on file with the Interstate Commerce Commission, was not able to say that the rate sheets introduced in evidence embraced all of the rates in force at that time for shipments over the lines of railroad mentioned, but it is entirely clear that they did embrace all the tariff rates on those roads between Boswell, Indiana, and Sylvania, Ohio.

There can be no doubt that the official rate duly fixed and filed with the Interstate Commerce Commission is binding alike on carrier and shipper. The direct question was decided by the Supreme Court of the United States in Louisville & Nashville Railroad Co. v. Maxwell, 237 U. S., 94. In that case Mr. Maxwell desired two railroad tickets by certain routes which he named, and by oversight the railroad agent quoted him a lower rate than that fixed in the published rates on file with the Interstate Commerce Commission. -Mr. Maxwell, as was said in the opinion, was in no way at fault in the matter. He did no more than tell the agent the points to which he wished to go, and the agent fixed the routing in the tickets .and named the fare, which Mlaxwell paid without question. In the case at bar Mr. Peak was without fault in the matter. The error was solely that of the agent. But, under the. decision in the case just cited, this error does not relieve the defendant from the duty to pay the regular fixed tariff. I quote from the opinion of Mr. Justice Hughes on page 97 the following:

“Under the interstate commerce .act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it, unless it is found by the commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some eases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination.”

It is perfectly manifest that the object of the interstate commerce .act was to have but one rate and from which there could be no departure. Erie R. R. Co. v. Steinberg, 94 O. S., 189.

This court had a similar question in a case arising in Erie county based on an intrastate shipment, under the Ohio statute, General Code, Section 510, and reached a like conclusion. I refer to the unreported case of Lake Erie & Western R. R. Co. v. Kelley Island Lime & Transport Co., decided June 12, 1914.

It is contended, however, that there was no authority for the common pleas court or this court to review the judgment of the justice of the peace on the weight of the evidence, and that the motion for a new trial filed before the justice of the peace was not in accordance with the statute. That motion had as one ground that the judgment was against the weight of the evidence. The statutes of Ohio at one time did not authorize a review of a judgment of a justice of the peace on the weight of the evidence, but such is not the law at the present time. The language of General Code, Section 10361, authorizes such review, and the authority there given is not restricted by the language of General Code, Section 10352. See Koch v. State, 73 O. S., 131, 138. It is true that the ease just cited was a criminal action, but the Supreme Court there held that the rule contained in Section 10361 is applicable alike to criminal and civil actions.

This court carefully reviewed the sections authorizing the review on error of judgments entered before justices of the peace, and reached a similar conclusion in the unreported case of Brand v. Murray et al, a Lucas county case, decided on June 7, 1916.

Counsel are not in accord as to whether the request that the justice of the peace should direct the jury to return a verdict in favor of the plaintiff was made before or after the argument. We do not regard the time of the making of that application or request to direct ,a verdict as important. It was clearly made before the jury had retired and should have been granted.

For the error in refusing to direct a verdict for the plaintiff the judgments rendered will be reversed and final judgment entered here for the plaintiff in error.

Chittenden, J., and Kinkade, J., concur.


author: Pollock, J.

text:
    RIGHT OF HUSBAND TO RECOVER. FOR SERVICES RENDERED BY HIS WIFE.
    Court of Appeals for Jefferson County.
    Francis B. Clutz v. Charles H. Hess, Executor of Estate of John A. Cunningham.
    Decided, December 20, 1917.

      Husband and, Wife — Interest of the Former in a Claim by the Latter for Bernices Rendered — Competency of Evidence by the Wife— Where the Claim is Against the Estate of a Decedent.

    1. Sections 7995 to 7999 inclusive of the General Code, do not deprive the husband of his common law right to maintain an action for the services of his wife, where such services were performed in furtherance of her husband’s business and in connection with her domestic duties, although a third party had agreed to compensate ■her therefor, when by her conduct she waives her right to the compensation for such services as her separate property.
    2. In such an action, Section 11495 of the General Code, does not prevent the husband, where the adverse party defends as an executor, from calling his wife as a witness and introducing her testimony as to facts which occurred prior to the death of the testator.

      John D. Gardner, for the plaintiff in error.

      Mansfield & Merryman, contra.
   Pollock, J.

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

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

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

All the errors complained of relate to this item, of the account, and can be considered under two heads. First, could the plaintiff below maintain the action for the amount of the wages due for services performed by his wife? And, second, if he ■could, is she a competent witness in behalf of the plaintiff below ?

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

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

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

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

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

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

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

“When Miss Clutz left, my sister-in-law, he wanted to get another girl. I said, ‘Mr. Cunningham,’ — I called him John, if he was satisfied ‘I will work for $3 a week and do her share of the work. ’ He said he was willing for me to have the money if I could stand the work. It was satisfactory to Mr. Cunningham and his mother to have me do that. Of course, Mrs. Cunningham is dead now.”

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

The question now arises, can the husband recover the wages due from this estate for the services performed under this agreement by his wife 1 It is urged that she was working there with her husband, and doing such work as a woman ordinarily would do for her husband, under similar circumstances in a dairy or on a farm, and we may concede that that is correct. But this was not the dairy of Clutz, but the work was performed in the dairy of Cunningham and Clutz. These girls and-Mrs. Clutz were employed because the dairy needed additional help aside from that of the husband, and the arrangement between the partners' was that Cunningham was to p.ay the wages and Clutz to board the girls.

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

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

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

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

As noted in the opinion in the case of B. & O. R. R. Co. v. Glenn, 66 Ohio St., 395, there is little change from the common law rule of the relation of husband and wife so far in the statute.

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

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

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

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

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

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

The Court of Appeals of New York in the case of Birbeck v. Ackroyd, 74 N. Y., 356 (30 Am. Rep., 304), in construing their statute, say:

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

And in the opinion on page 359:

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

Again this court, in the case of Porter v. Dunn, 30 N. E., 120, announces the same principle in construing this statute.

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

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

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

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

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

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

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

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

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

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

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

Under these (authorities we think the objection to the wife of Clutz testifying was not tenable. The judgment of the court below is affirmed.

Metcalfe, J., and Farr, J., concur.


text:
    DUTY OF MOTORMAN TOWARD ONE ON THE TRACK BEFORE HIM.
    Court of Appeals for Lucas County.
    Detroit, Monroe & Toledo Short Line Railway v. David Landesman et al.
    Decided, February 5, 1917.

      Negligence — Ordinary Care Required of a Motorman — Toward One Rightfully on the Track in Front of His Advancing Gar — Doctrine of Last Ghance.

    A motorman is bound to use ordinary care to prevent injury to one who is rightfully on the track of the railway company, and in a position of peril, when he discovers or in the exercise of ordinary care would discover such person so exposed to danger.
    On application for rehearing.

      Tracy, Chapman & Welles, for plaintiff in error.

      Sala & Carabin, for defendant in error, Landesman.

      H. E. King, for defendant in error, the Toledo Railways & Light Company.
   Chittenden, J.

Error to the court of common pleas.

The defendant in error fell upon the railway track on one of the streets of the city of Toledo in the night season and was injured by a car of the plaintiff in error. A verdict and judgment were rendered in favor of the defendant in error, and the judgment was affirmed by this court.

We have made a careful examination of the reasons iadvaneed by the plaintiff in error for a rehearing of this ease. Upon consideration thereof, each member of the court adheres to the views entertained at the time the ease was decided, and as expressed in the written opinions then filed.

It is urged that the effect of the decision jannounced by the majority of the court is to permit the jury to guess and speculate in arriving at their verdict. The court is entirely familiar with the cases cited upon this feature of the case, and has many times applied the doctrine announced in those eases. A majority of the court are of opinion that the effect of their decision is not as claimed by counsel for plaintiff in error, and we do not care to add anything to what was stated in the opinion heretofore rendered.

Counsel for plaintiff in error have made a very careful review of cases decided by the Supreme Court, circuit courts and courts of appeals of this state upon the doctrine of the last clear chance. We have read the brief upon this subject with great interest and have given very careful consideration to this important subject. We will not undertake to enter into any discussion or analysis of the many cases commented upon, but will only state that we think that the correct rule is announced in the ease of Drown v. Traction Co., 76 O. S., 234, in which the court, on page 248, say:

“According to the better view with reference to injuries to travelers at highway crossings — as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no legal right to be — the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them.”

We think that this principle is recognized and announced in the later case of Traction Co. v. Brandon, 87 O. S., 187. The distinction to be drawn between cases where liability depends upon actual knowledge and those where liability rests upon a failure to exercise ordinary care in ascertaining the dangerous situation of the plaintiff is found stated in those cases; namely, actual knowledge may be necessary when the injured person is a trespasser upon tracks, or a mere licensee; whereas the defendant is bound to exercise ordinary care to ascertain the presence in a dangerous situation of one rightfully on the track and likely to be injured.

This court has recognized this distinction in a number of cases. We call attention to the case of Cleveland, Painesville & Eastern Railroad Co. v. Stevenson, Adm’r of the Estate of John S. Frischkorn, decided in Cuyahoga county on January 11, 1915 (unreported). In speaking of the duty of a motorman upon an interurban car approaching a highway crossing in the open country, we said:

“It is his duty to keep a vigilant lookout in front of his advancing car that he may discover persons exposed to danger on highway crossings, and when he does discover, or in the exercise of ordinary care would discover, that persons will not refrain from going upon the crossing, it is his duty to exercise ordinary care to check or stop his ear in order to avoid injuring them.”

To the same effect is the case of Ohio Electric Railway Co. v. Sarah Leininger, Adm’x, decided January 10, 1916 (not reported) .

The rule above announced took cognizance of the fact that one upon a highway crossing was not a trespasser upon the tracks of the defendant company. So, in the streets of a city a pedestrian is not a trespasser upon the tracks of the company in attempting to cross such tracks, although not at a street intersection.

Especial attention has been called to the case of Cincinnati Traction Co. v. Edwards, 22 C.C.(N.S.), 539. It is claimed that this case is in conflict with the decision announced in the case now under review upon the question of last ■ chance. Counsel say that certified copies of the .pleadings and other papers are submitted with the brief, but we do not find them. In view of what Judge Gorman said concerning the pleadings and the evidence, we did not think it necessary to call on counsel to produce such copies, it being plainly manifest that the case was not one of last chance.

We strongly feel that the decision of the Supreme Court in the case of Railway Co. v. McCormick, 69 O. S., 45, while no doubt correct, in view of the state of the pleadings and the facts in that case, ought not to be extended to cases of the char-, actor of the one at bar.

Many illustrations readily occur to one to show that to strictly apply the rule contended for by counsel for plaintiff in error, namely, that the driver of an engine or ear must have actual knowledge of one not a trespasser, being in a perilous position, before the so-called doctrine of last clear chance can be applied, would in many instances accomplish injustice instead of justice. If a pedestrian were crossing a street railway track in a munieipalty and should be stricken with paralysis, by reason of which he fell in a helpless condition upon the track, and a street car was approaching at a sufficient distance that it might easily be stopped and prevent injury by the exercise of ordinary care upon the part of the motorman, it would be anything but a just or humane law that would permit the railway company to escape liability by simply proving that the motorman did not see the man upon the track in his helpless condition, when, if the motorman had been exercising ordinary care in keeping a lookout ahead, he could and would have seen him in time to prevent the accident. Without multiplying illustrations, and without any further comment, we are unanimously of opinion that the contentions of counsel for plaintiff in error to the effect that the doctrine of last chance can only apply in cases where the motorman has actual knowledge of the perilous position of the party in time to avert the accident, and does not apply to eases where the motorman in the exercise of ordinary care would have had such knowledge and can not be sustained.

The application for rehearing will be denied.

Richards, J., and Kinkade, J., concur.