author: Minshall, J.

text:
    Wyman v. Robbins.

      Promissory notes — Indorsees after due — Payees—Compensation— Cross-demands — Surety—Rights of.

    1. In a suit by an indorsee of a past-due promissory note against the maker, the latter may, under the provisions of section 5077, Revised Statutes, claim the note compensated by an indebtedness due him from an indorsee, intermediate between the plaintiff and the payee, to the extent that one claim equals the other, where such indebtedness existed during the period the note was held by such indorsee, and the note and the indebtedness were then past due. In such case the right is not limited by section 3173, Revised Statutes.
    2. Where such right exists in favor of the principal maker of a note, his surety may, when sued alone, avail himself of it.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Vinton county.
    The facts are statedUn the opinion.

      R. S. Swepston, for plaintiff in error.
    1. The sole question in this case, as shown by the record, is: Is the maker of a negotiable in- - strument entitled to set off a demand against the plaintiff’s indorser in an action by a second indorsee?
    It is manifest that this question comes under and is settled by either section 3173 or section .5077, Revised Statutes of Ohio.
    2. It is to be noticed that section 3173 is a much «older section than 5077.

      The statutes of the different states vary greatly on this question, and consequently the decisions differ. Randolph on Commercial Paper, vol. 3, Sec. 1881, states as a general proposition of law, that “a purchaser after maturity takes subject to set offs existing against the payee before the transfer of the paper, and cites: Sherwood v. Barton, 36 Barb., 284; (1862); Thompson v. McClelland, 29 Penn. St., 475; Lightly v. Brenner, 14 S. and R., 127; Sargent v. Southgate, 5 Pick., 312; Bowen v. Thrall, 28 Vt., 382; Norton v. Foster, 12 Kans., 44; Shirley v. Todd, 9 Me., 83; Burnham v. Tucker, 18 Ib. 79.
    3. An indorsement made after maturity subjects the indorsee to equitable defenses existing between the original parties to the bill, so far as they are available against his indorsee. Randolph on Commercial Paper, Vol. 2, Sec. 674. See also Byles 170, 265; Chitty 247; 1 Edwards, Sec. 377; Story on Prom. Notes, Sec. 178; Story on Bills, Sec. 220.
    4. It will certainty be conceded that a set-off arising’ out of a different transaction between the maker or acceptor and the payee, can not be used as a defense against a purchaser for value, after maturity. And if not between maker and payee much less can it be used between maker and indorsee. Randolph on Commercial Paper, Vol. 2, Sec. 679; 2 Daniel Neg. Inst., (3rd Ed.) Sec. 1435; 1 Chitty on Bills (13 Am. Ed.) (*220) 251; Story on Bills, Sec. 220; Story on Notes, Sec. 178; Byles on Bills, (Sherwood Ed.), (*353), 529; Edwards on Bills, 260; 2 Parsons, Notes and Bills, 603, 604; 1 Daniels, Sec. 725 et seq.; Byles 170; Burrough v. Moss, 10 B. and C., 558; Cumberland Bank v. Harr, 3 Kan., 222; Haley v. Congdon, 19 Cent. L. J., 137; Gullett v. Hoy, 15 Mo., 399; Wilkinson v. Jeffers, 30 Ga., 153; Haenssler v. Greene, 8 Mo. App., 451; Stedman v. Jillson, 10 Conn., 55; Arman v. Houch, 4 Gill., 325; Hughes v. Large, 2 Penn. St., 103; Way v. Lamb, 15 Iowa, 79; Chandler v. Drew, 6 N. H. 469; Trafford v. Hall, 7 R. I., 104; Elliott v. Deason, 64 Ga., 63; Stanner v. Stanner, 30 Iowa, 448.
    5. Special attention is called to the case of Lillie, Ex., v. Bates et al., 3 O. C. C. R., 97.
    6. It is an established rule in the construction of statutes, that a statute treating a subject in general terms, and not expressly contradicting the provisions of a prior act, shall not be considered as intended to affect the more particular and positive provisions of the prior act, unless it be absolutely necessary to do so in order to give any meaning*. Fosdick v. Perrysburg, 14 Ohio St., 472, and cases cited; Knox v. McComb, 19 Ohio St., 320, 346; Olds v. Franklin Co., 20 Ohio St., 421; Shrunk v. First National Bank, 22 Ohio St., 508, 515; State v. Newton, 26 Ohio St., 206; Allen v. Russell, 39 Ohio St., 336; Commissioners v. Board of Public Works, 39 Ohio St., 632; Sedgwick on Statutory Law, 123; Williams v. Pritchard, 4 D. and E., 2; Gregory’s Case, 6 Coke’s Rep., 19.

      J. M. McGillivray, for defendant in error.
    That the note in the hands of Joseph, and the claim of Levi, constituted cross-demands, is, to my mind, too plain for argument, and the statement of the proposition is all that would be made, but for the fact that the position of counsel for plaintiff in error seems to be supported by the ease of Lillie v. Bates, 3 O. C. C. Rep., 97.
    The claim of counsel for plaintiff that this cause is controlled by section 3173 cannot well be taken; his argument that it should control because of its being the older enactment, can have no weight. Section 5077 does not repeal section 3173, nor was it intended that it should; it is a subsequent enactment, intended to extend the rights of parties beyond what they were at common law, or under the statutes as existing at the date of the adoption of the code.
    While it may be true that under section 3173 defenses are limited to such as could be made against the original, payee, yet such are not the only defenses that can be made under our code. • Section 5071 provides that the defendant may set forth in his answer as.many grounds of defense, counterclaim and set-off as he has, whether they are such as have been heretofore denominated legal or equitable, or both. Under the code there is a clear distinction between a defense and a counter-claim or set-off.
    Section 3173 governs defenses only, while section 5077 includes not only such matters as were known at law as defenses, but also counter-claims and set-offs.
    The case of Lillie v. Bates, relied upon by plaintiff in error, is not good law, and the reasoning of the judge in rendering the opinion in the case, shows conclusively that the judgment was based on fallacious premises. To hold that section 5077 does not apply to promissory notes is to say that the term cross-demands. as used therein is of limited and narrow meaning, and restricted iñ its operation to matter not covered by section 3173.
    The legislature uses the broad and general term, “cross-demands ” — a term broad enoug'h to include any class of claims arising upon contract, whether evidenced by a promissory note or not; and in order to impress upon the jurisprudence of the state, that the language used in the code was not used in a restricted sense, but in a general and broad one, section 4948 provides for a liberal construction of the code, and all proceedings under it.
   Minshall, J.

The case below was brought into the court of common pleas on appeal from the judgment of a justice of the peace. The suit was upon a joint and several promissory- note for the sum of $50, made July 4, 1878, by Levi "Wyman and Harvey Robbins, payable one day after date, to D. B. Dyer or order, and bearing interest at eight per cent. The plaintiff averred ownership of the note and asked judgment for the amount with interest.

Service was made upon Harvey Robbins only, who answered, that he is liable merely as surety on the note for his co-maker, Levi Wyman; and that it has been paid and compensated in the following manner : That the plaintiff became the owner of the note by a transfer from her husband Joseph Wyman, who had become the owner of it after maturity by a transfer from the payees. That while her husband, Joseph Wyman, was the owner of it, he was indebted to Levi Wyman in a large sum, by the latter paying for him as his surety, a note to the "Vinton County Bank, for which he had never been indemnified, and that' this indebtedness of . Joseph Wyman to Levi Wyman existed before and during the entire time the note was held by the former. The plaintiff demurred to the answer as insufficient to constitute a defense; the demurrer was sustained, and, the defendant not desiring to plead further, judgment was entered for the plaintiff for the amount of the note with interest, less some small payment that had been made-. The defendant excepted and prosecuted error to the circuit court, where the judgment was reversed and the cause remanded for further proceedings.

The answer of the defendant, the substance of which has been stated, constitutes, as we think, a defense to the action, and we, therefore, see no error in the judgment of the circuit court- reversing- that of the common pleas. The answer is based upon an application of the provisions of section 5077, Revised Statutes, to the facts as pleaded. The section reads as follows : “When cross-demands have existed between persons, under such circumstances that if one had brought an action against the other, a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by assignment by the other, or by his death, but the two demands must be deemed compensated, so far as they equal each other.”

Its application to the facts of the answer, is found in the fact, that, if Joseph Wyman had brought suit upon the note at any time during the period that he owned it, Levi Wyman, the principal, would have had the right to set off the indebtedness of Joseph to him, and' thereby compensate the claim against him; and, Robbins being a surety, would have had the same right; for whatever discharges the principal, discharges the surety. By the statute this defense cannot be defeated by an assignment, and the claim sued on must be regarcled-as compensated by the debt due the principal maker of the note; as by the averment, it more than equals the claim of the plaintiff.

It is claimed, however, that this section is not applicable to the case; that, the action being on a promissory note indorsed after maturity, only such defenses can, under section 3173, Revised Statutes, be made to it, as would have been available in a suit by the payee against the maker. This section, among other things, provides, that if a note be indorsed or delivered after the day on which it is made payable, and the indorsee institute an action upon it, “the defendant shall be allowed to set up any defense he might have made, had the action been instituted in the name and for the use of the person to whom the note * * * was originally made payable.” There is nothing in the language of this section that precludes the application of section 5077 to the transfer of a note or bill of ex-chang-e after its maturity. It is true, that the latter section applies' only to assignments, but while every assignment is not an indorsement in the legal sense, yet every indorsement is an assignment — a transfer of the title to a chose in action. In an indorsement the chose is assigned to the indorsee with a conditional liability on the ' part of the indorser to the indorsee, unless the indorsement is so restricted as to exclude this liability. Therefore section 5077 includes in its terms the assignment of a note by indorsement. But it is argued that section 3173 should be read as an exception to the more general rule of section 5077. We see no reason for supposing that such was the intention of the legislature. The latter is the newer section, was introduced by the code of civil procedure, is equitable and just in its nature, and, had the legislature intended that it should be limited so as not to apply to negotiable instruments after due, it is reasonable to suppose that an express limitation to that effect would have been made, and that it would not have been left as a mere matter of inference. It introduces no greater ■inconvenience than must always attend the taking of a note or other negotiable instrument after its maturity. This can only be done with safety by inquiring of the maker, whether he has any defense to it. It can make no difference how many intermediate holders there may have been of the paper, no inquiry is required of or concerning them. The maker, or party bound to pay, knows whether he has a cross-demand against the payee or any of the subsequent holders; and. unless he informs the party when inquired of, that he has, he would not afterwards be permitted to set up such a defense, whatever the fact might be.

Our attention is called to the case of Lillie v. Bates, 3 C. C. Rep. 94. That case was affirmed on error by this court, but not upon the ground it is placed by the learned judge who delivered the opinion in that court. There, to the defense setting up the existence of a cross-demand of the 'defendant,'Lillie, against Fhornhoff and McCabe, while the latter parties held the note sued on, a reply was filed denying its averments. This issue was submitted by the common pleas judge to the jury, under an instruction, that if they found the facts to be as stated, they should find for the defendant. So that under the construction we have placed on the statute, the plaintiff in error, defendant below, had no ground for an exception, and took none. If there was an error of fact, it could only be passed on by the lower courts. So that there being no error of law apparent on the record, this court could have done no more than it did— affirm the judg’ment. It can make no difference what reasons the circuit court may have given for its affirmance, if, upon the record,-the judgment was, as a matter of law, right.

Judgment affirmed.


source: Caselaw Access Project

author: Dickman, C. J.

license: Public Domain

text:
    Oyster & Fish Co. v. Bank.

      Liability of drawer on certified check.

    Where the drawer of a check, before delivering it to the payee, has it certified as good by the bank upon which it is drawn, and the payee presents it in due season for payment, and gives due notice to the drawer of its non-payment, and the bank had failed at the time of its presentment for payment, the drawer will not be discharged from liability on the check.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Hamilton county.
    The original action was commenced before a justice of the peace of Cincinnati township, Hamilton county. On appeal to the Court of Common Pleas, The National Lafayette Bank, now defendant in error, filed its petition against The Cincinnati Oyster & Fish Company, now plaintiff in error, to which a general demurrer having been sustained, an amended petition was filed. To the amended petition also a general demurrer was interposed, but overruled. Thereupon, The Cincinnati Oyster & Fish Company, defendant below, filed an answer, and the cause came on to be heard upon the pleading’s and evidence, and was, by request of parties, submitted to the court without a jury. Judgment was rendered in favor of the bank, to which the defendant below excepted. A bill of exceptions, containing’ the facts agreed to by counsel for the parties to the cause, was presented to the court and allowed; and the circuit court on petition in error affirmed the judgment of the court of common pleas. To reverse the judgment of the circuit court this proceeding in error is instituted' A further statement of facts necessary to a proper understanding of the question involved in the ease will he found in the opinion.

      W. W. Symmes, for plaintiff in error.
    The best authorities hold flatly that the drawer is not liable, and that by certification he is absolutely released. First National Bank v. Leach, 52 N. Y., 350; Thompson v. Bank, 82 N. Y., 1; Girard Bank v. Bank, 39 Pa. St., 92; Ballard v. Randall, 1 Gray, 605; Morse on Banks, 310, 311, et seq.; Mer. National Bank v. State Bank, 10 Wallace, 604 (see also notes, Book 19, Co-op. Pub. Co. ed., page 1008); Edwards on Bills and Promissory Notes, 2d ed., 1863, page 398; First National Bank v. Whitman, 4 Otto, 343.

      Frank V. Andrews and Healy & Brannan, for defendant in error.
    It seems clear, both on reason and authority, that the drawer is liable. In the first place, it is the general rule of the law that where one person gives his check to another for a claim existing against himself, it is a conditional payment only, unless there be a special agreement that it is received as an absolute payment, and where demand is duly made on the bank and notice of non-payment given to the drawer, he is liable as such. First National Bank of Jersey City v. Leach, 52 N. Y., 353; Brickford v. First National Bank, 42 Ill., 238; Rounds v. Smith, 42 Ill., 245, Brown v. Leckie, 43 Ill., 497; Born v. First National Bank, 123 Ind., 78; Morse on Banks and Banking, 3rd ed. Sec. 414, 415, and 416; Thompson v. Bank, 82 N. Y., 1; Andrews v. German National Bank, 9 Heiskell 211; First National Bank v. Whitman, 4 Otto.
   Dickman, C. J.

The plaintiff in error, The Cincinnati Oyster & Fish Company, is a corporation organized under the laws of Ohio; and the defendant in error, The National Lafayette Bank, is a corporation organized under the laws of the United States. In June, 1887, the Lafayette Bank received from a banking correspondent in Michigan, for collection, a sight draft for. fifty-four dollars, drawn upon the plaintiff in error. On the 20th day of June, 1887, the plaintiff in error, on receiving the draft from the Lafayette Bank, gave to that bank, in exchange, its check for fifty-four dollars, already, by the procurement of the plaintiff in error, certified by The Fidelity National Bank of Cincinnati, Ohio. • The following is a copy of the check and its certification:

“No. 344. Cincinnati, June 20, 1887.
“The Fidelity National Bank pay to the order of National Lafayette Bank, fifty-four dollars.
“The Cincinnati Oyster & Fish Company.
“$54.00. Stephen Chase, Superintendent.
(“ Certification.)
“Good for $54.00, when property indorsed.
“Fidelity National Bank,
Ammi Baldwin, Ccoshier.”

On the same day — the 20th of June — the amount of the check was at once credited by the Lafayette Bank to the account of its banking correspondent. The check was duty indorsed, and duty presented to the Fidelity National Bank on the 21st day of June, 1887, and payment was refused —the Fidelity Bank having failed and closed its doors. The check was duty protested on the same day for non-payment, and notice of such non-payment was served upon the plaintiff in error, at its place of business in Cincinnati.

Demand of payment of the check was made upon the plaintiff in error, and payment was by it refused.

At the time of the transaction between the parties to this cause, it was usual and customary for banks and bankers in Cincinnati to send notices to persons owing accounts at banks, that “checks on other banks are not received in payment for drafts after half-past one o’clock unless certified;” and for those receiving such notices, to take up and pay off drafts or other mercantile paper with certified cheeks. But while it was thus the general rule of banks and bankers to require checks offered in payment of drafts, notes, or other mercantile paper after half-past one o’clock, to be certified, that rule was not such that it might not be permitted to go unobserved, if the party receiving the check was satisfied that it was good, or that the party drawing it was responsible.

The record presents only one question that claims our consideration, and that is, can the drawer of a certified check be held liable for its payment, where it is certified by the bank at his own instance, request, or procurement, before he delivers it to the payee.

Among the numerous definitions of checks which the text writers give, that of Mr. Daniels, in his treatise on negotiable instruments, (§1566) has been very generally approved. A check is there defined as, “a draft or order upon a bank or banking house, purporting to be drawn upon a deposit of funds for the payment at all events of a certain sum of money, to a certain person therein named, or to him or his order, or to bearer, and payable instantly on demand.” It is an absolute transfer or appropriation of so much money in the hands of the drawee. If the payee or holder presents the check for payment before the close of banking hours on the next day after its date, and payment is refused, the drawer, if duly notified, will be liable. And the drawer will not be discharged from liability by the delay of the holder to make presentment and give notice of dishonor, unless he has suffered loss thereby; and if the bank remains solvent, and the fund upon which the check is drawn is unaffected by the delay, the liability of the drawer continues, ordinarily, in full force.

The certification of the check by the bank as “good,” procured by the drawer, on his own motion, before its delivery to the payee, will not relieve the latter from the necessity of making due presentment and giving due notice of its dishonor, if he would hold on to the liability of the drawer; nor, will such a certification discharge the drawer where the bank becomes insolvent, if the payee uses the proper diligence in presenting the check for payment, and giving notice of its dishonor. In other words, where the drawer of the check delivers it already certified, the relations of the payee or holder and the drawer are not affected by the circumstance that the check is certified; their duties and obligations toward each other remain the same as they would have been had the check not been certified.

Upon presentation of the check by the drawer to the bank for certification, it becomes manifest that it is designed to be negotiated, and that the drawer, to facilitate its negotiation, seeks to strengthen his own obligation by adding to it that of the bank. The certification becomes an acknowb edgment by the bank, that the drawer has funds on deposit, which the bank will pay over to the holder of the check upon its being presented. Assurance is thereby given to the payee that the cheek has not been drawn without provision to meet its payment. A check so certified, when offered in taking up drafts, notes, or other mercantile paper, if it is received too late to pass through the clearing house on the day when offered, may inspire confidence that when presented the next day for payment it will not be dishonored. But such an enlargement of the security is not to be construed into an absolute discharge of the drawer of the check. By simply receiving the cheek in the form in which it is presented, the holder does not make the drawee his sole debtor, as when, after becoming the owner, the holder procures the certification of the check — thus voluntarily making the bank upon which it is drawn his sole debtor, and releasing the drawer. Born v. Bank, 123 Ind. 78, 24 N. E. Rep. 173.

It is said, however, in behalf of the plaintiff in error, that the drawer of the check in dispute caused it to be certified by the requirement of the Lafayette Bank. The record does not lead us to that conclusion. It is not anywhere stated that the notice was sent to the plaintiff in error, that checks on other banks would not be received in payment for drafts after one and a half o’clock, unless certified. The bank notified the plaintiff in error that it held for collection the sight draft received from its banking correspondent in Michigan, but what else that notice contained does not appear, as the notice itself was not offered in evidence. As agreed to by counsel for the parties to the cause, the plaintiff in error received from the Lafayette* Bank the sight draft, “and, in exchange therefor, gave its check, already, by its procurement, certified by The Fidelity National Bank.” The fact that when the check was thus given it had already been certified by the procurement of the plaintiff in error, would in itself, preclude the idea that the bank had procured it to be certified. Moreover, the rule requiring cheeks offered after half-past one o’clock in payment of drafts to be certified, was not an invariable one, but its enforcement was dependent upon whether the party receiving a check was satisfied that it was good, or that the party drawing it was responsible.

If the cheek on The Fidelity National Bank had been uncertified, it would not be contended that it was taken in absolute and final discharge and satisfaction of the sight draft. It would rather be deemed to have been taken in payment on the condition that it should be paid when presented. An uncertified check, if given in the ordinary course of business, and unattended by special circumstances, is not presumed to be received as absolute payment, even if the drawer have funds in the bank. The holder is not bound by receiving it, but may treat it as a nullity if he derives no benefit from it, provided he has been guilty of no negligence which has caused an injury to the drawer. 2 Pars. Contr., 8 ed. 736. The .payee to whom the debt is owing may demand money in lieu of a check, in the absence of an express agreement. No implication arises from the mere fact that the drawer has procured the check to be certified, that it is accepted as money or currency. The rule has been laid down in New York, that by the act of certification the bank undertakes for only two facts, viz.: The genuineness of the drawer’s signature, and the sufficiency of his account to meet the demand of payment;. that it vouches for nothing further, either in the body of the check or indorsed upon it. Bank v. Bank, 59 N. Y. 67. While the act of certification may increase the negotiability of the check in the market, it cannot be regarded as evidence of the solvency of the bank, and,per se, gives rise to no presumption that a check is accepted in payment, as money. It was said in Born v. Bank, supra: “It neither represents nor touches the question of the solvency of the bank upon which it is drawn. There is, therefore, no just reason for concluding that the party who takes a .certified check, in the ordinary course of business, assumes the risk of the solvency of the bank chosen by the drawer of the check as his place of deposit. * * The certification of a check is not intended to convey to the person to whom it is offered an assurance that the bank upon which it is drawn is solvent, for there is nothing in the nature of the transaction, nor in the form of the contract, which authorizes the inference that any of the parties expected or intended that it should have that effect.”

The question of the drawer’s liability on a check, procured by him to be certified before delivering it to the payee, has received the consideration of the Supreme Court of Massachusetts, in the cases, Head v. Hornblower, and Minot v. Russ, 156 Mass. 458, 31 N. E. Rep. 489. In the opinion by Field, C. J., a marked distinction is drawn between checks presented for certification by the drawer, and those whose certification is procured by the payee or holder. It was there held that when the payee or holder of a check presents it for certification, the bank knows that it is done for the convenience or. security of the holder. The holder could, demand' payment, if he chose, and it is only because instead of payment the holder desires certification that the bank certifies the check instead of paying it. In the opinion it is said: ‘ ‘The weight of authority is that if the drawer, in his own behalf, or for his own benefit, gets his check certified, and then delivers it to the payee, the drawer is not discharged; but that if the payee or holder, in his own behalf, or for his own benefit, gets it certified instead of getting it paid, then the drawer is discharged. We are of the opinion that this view of the law rests on sound reasons. * * If persons receive checks uncertified, and then present them to the bank for certification instead of payment, the certification should be considered as discharging the drawer.”

A check being payable immediately on demand, the holder has no right to demand from the bank anything but payment of the check; and the bank has no right, as against the drawer, to do anything else but pay it. Dan. Neg. Ins., § 1601. Where, therefore, the holder, instead of demanding’ and receiving the money, has the check certified, and leaves the money in the bank subject to future draft, he enters into independent contractual relations with the bank not contemplated by the drawer, and to which the drawer is not a party. Instead of receiving payment, as he might and should have done, he chooses to accept in place of payment an express executory agreement by the bank to pay the check to the holder, when presented for payment at any time thereafter. Bank v. Jones, 137 Ill. 634, 27 N. E. Rep. 533. In contemplation and by operation of law, the holder is in the position of having’ actually drawn out the funds from the bank, and re-deposited them to his own credit, and caused a'certificate of deposit to be issued to him therefor. It is evident that the drawer is thereby made to stand in a different relation to the payee and holder from what he would were the check certified by his own procurement prior to its delivery to the payee.

We find no error in the record that would justify a reversal of the judgment of the court below, and the judgment of the circuit court is therefore

Affi/rmed.


author: By the Court.

text:
    Board of Education v. Milligan.

      Boards of edtication — Remedy against defaulting treasurer.

    A board of education may sue its treasurer for money received and not accounted for.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Ashland county.
    Action in the common pleas on appeal from the judgment of a justice of the peace, by the board Of education of the above named district, against the defendant Milligan, who had been duly appointed, qualified and acted as treasurer of the board, and, his term having expired, failed on demand to pay over to his successor the balance of the money in his hands belonging to the board, amounting to the sum of $84.28, for which the plaintiff asked a judgment with interest.
    The defendant demurred to the petition on the ground that it did not state sufficient facts, and, also, on the ground that the plaintiff has not legal capacity to sue. The court sustained the demurrer and. dismissed the action, which judgment was affirmed on error in the circuit court. .

      Silas C. Parker, for plaintiff in error.

      Campbell & Grosscup, for defendant in error.
   By the Court.

We think this was error. The board of education is by statute made a legal entity, empowered to sue and be sued. The money detained belonged to it, and it had the right to recover the same. The remedy is not limited to an action on the bond, it may sue a defaulting treasurer for money had and received, as was done in this case.

Judgment reversed and cause remanded, with dw'ection to. override the demurrer, and for further proceedings.


text:
    Pugh v. State ex rel.

      Bills of exceptions— Rights and duties of trial judge — Extension of time for signing.

    1. The proviso of section 5302, Revised Statutes (89 Ohio Laws, 125), “that where exceptions are not allowed and signed during the progress of the trial, the party excepting shall submit the bill to opposite counsel for examination not less than ten days before the expiration of said fifty days,” is intended as a condition to the power of the trial judge to sign a bill of exceptions within the fifty days mentioned in sections 5298, 5301 and 5302, and where the condition is not complied with, it is the duty of such judge, unless consent of opposite counsel be given, to refuse to sign and allow the bill.
    2. The authority given by the second proviso of section 5302 to the trial judge to extend the time for signing not exceeding ten days beyond the expiration of the fifty, is for the convenience of the judge, to enable him to examine, sign and allow the bill, and is not intended to authorize such extension for the purpose of submitting the bill to opposite counsel.
    (Decided February 27, 1894.)

      Error to the Circuit Court of Franklin county.
    Action in mandamus was brought in the Circuit Court of Franklin county to compel' the plaintiff in. error, as judg-e of the court of common pleas, to sign a bill of exceptions in the case of Albert A. Hall, defendant in error, against one Marshall Fulton. At the trial of that case, at the September term, 1892, of the Franklin common pleas, a jury was called, and at the conclusion of the plaintiff’s testimony, on motion of defendant, the court took the case from the jury and rendered a judgment for the defendant. A motion for new trial was interposed, which was overruled on the 9th day of November. Divers exceptions were taken by counsel for Hall. He did not insist upon a bill of exceptions being signed at the time, but consented that his exceptions might subsequently be reduced to writing and allowed and signed.
    On December 29, following, being the fiftieth day after the overruling- of the motion for new trial, the attorney for Hall, without the knowledge or consent of opposite counsel, and without having theretofore submitted his bill of exceptions to them, or to the trial judge, applied to the latter for an extension of time for signing and allowing the bill. Thereupon the judge granted ten days for that purpose and endorsed such extension on the bill. Thereafter, and as soon as counsel for Hall could find opposing counsel, he submitted the bill. On January 3, following, the bill was again presented to the judge by counsel for Hall, and the signing- and allowance of the same requested. This was objected to by opposite counsel, and the judge refused to sign or allow the bill.
    The ground of refusal, was that the bill had not been presented to opposite counsel for examination not less than ten days before the expiration of fifty days from the date of the overruling of the •motion for a new trial; and was not submitted to the trial judge not less than five days before the expiration of said fifty days. It was not objected that the evidence given or the facts occurring at the trial were not correctly set out in the bill.
    The cause was submitted to the circuit court upon the pleadings, which embraced an agreed statement of facts, and a peremptory writ of mandamus awarded, with costs. To reverse this judgment this proceeding is prosecuted.
    Harrison, Olds & Henderson, for plaintiff in error.

      C. S. Cherrington, for defendant in error.
   By the Court.

Whether or not the trial judge was justified in refusing to sign and allow the bill of exceptions depends upon the construction to be given the act of March 22, 1892, (89 Ohio Laws, 125), amending sections 5298, 5301 and 5302, of the Revised Statutes, and especially the second proviso of the last section.

That section provides that: “If the exception be not true, then, after it is corrected, the trial judge, or a majority of the judges composing the trial court must allow and sign it before the case proceeds; or if the party excepting consents within fifty days after the overruling of the motion for a new trial, or the decision of the court when a motion for a new trial is not necessary. * * * Provided, that whefe exceptions are not allowed and signed during the progress of the trial, the party excepting shall submit the bill of ex-eeptions to the opposite counsel for examination not less than ten days before the expiration of said fifty days; and unless the trial judg’e or judges shall be absent from the district or circuit as provided in section 5301, the same shall be submitted to him or them for his or their signature, not less than five days before the expiration of said fifty days. Provided further, that the trial judge or judges may at his or their discretion extend the time for signing such bill of exceptions for a period not exceeding ten days beyond the expiration of said fifty days; which extension must be indorsed on the bill of exceptions by said trial judge or judges.”

It was the opinion of the circuit court that where, under the second proviso above quoted^ the trial judge grants an extension of time for signing the bill of exceptions, such extension is for every purpose that may be necessary to perfect the bill, including the purpose of submitting it to the opposite counsel as directed by the first proviso.

It seems to us that this conclusion defeats the purpose intended to be subserved by the incorporation into section 5302 of the two provisos.

The practice which prevailed under the statute before amendment, when the bill was required to be signed and allowed within thirty days from term, was attended with abuses. The right of opposite counsel to have a voice in settling the bill of exceptions, and the duty to present it to the judge so long' before the expiration of the thirty days as to admit of examination by him within the time, was recognized and acted upon. No one supposed that the exceptor could neglect presenting his bill until the last moment of the thirtieth day, and then demand that it be signed and allowed.' But the practice was attended with uncertainties. Often the time afforded the judg-e depended much upon the convenience of the exceptor’s counsel, and the opportunity for examination by opposing counsel much upon his courtesy. And, very often, both judge and counsel were put to serious inconvenience in the effort to preserve to the defeated party the opportunity to have his case reviewed in a higher court.

The adoption of the amendment of section 5302, incorporating the provisos, was intended to remedy this mischief; to remove the enforcement of the right of the successful party to examine the bill, and be heard before its approval, from the region of courtesy and discretion, and place it on the solid ground of positive mandatory rule, and at the same time relieve the judge of the embarrassments attending the former practice. This purpose is deducible from the plain import of the words used construed in the light of the evils referred to. The rule thus established is a plain one. It treats all alike, is easily understood by all, and, under ordinary conditions, will enforce itself. It tends to secure substantial justice in the correction of abuses of the former practice; and we do not feel that the salutary result thus apparently secured should be defeated or frittered away upon a point of doubtful construction.

It is objected that the construction indicated deprives the exceptor of a right directly given by section 5298, to-wit: fifty days in which to reduce his exception to writing. A sufficient answer to this objection is, we think, that, independent of the proviso, the exceptor could not take the full fifty days for writing out his bill. Whatever portion of that time might be necessary for examination by opposite counsel and by the judge, would, of necessity, come out of the fifty; while, if the conclusion that the second proviso gives the trial judge power to extend the time for every purpose is adopted, it presents a flat contradiction to the words fixing the limit in the same section that time may be given “not more than fifty days.”

This conclusion, we are aware, is not wholly consistent with the limit of fifty days for allowance and signing in the same section; but, as we understand, the purpose of a proviso is to incorporate an exception upon a general rule, making what precedes conditional upon what follows. Indeed, the question in controversy is hot as to the general effect of the proviso, but as to the particular scope and effect of it. Nor is there, as we think, weight in the suggestion that the construction here indicated implies that the judge might defeat the object of the statute by extending the time for the purpose of signing the bill only, and then refuse to allow the bill because the fifty days had expired. The practice upon the subject is quite too well established to admit of embarrassment upon that point. The signing implies that the bill is to be allowed, and upon a request, a journal entry directed for that purpose.

We are not. concerned to inquire whether the statute, as it now stands, means that the allowance of the fifty days must be made by the court, or whether, where the exceptor waives the right to have the bill signed before the case proceeds, the statute itself operates to give the fifty days, for the point is not insisted upon. Nor are we called upon to consider the effect of a reasonable, though fruitless, effort to duly submit the bill to opposite counsel, nor the effect of consent or waiver by such counsel of any right, by way of extension of time, for no claim of that kind is made.

Nor is it necessary to a decision of the ease before us to determine whether the trial judge may waive the requirement that the bill be presented to him not less than five days before the expiration of the fifty, where the bill -had been submitted to him within the fifty days, and had been theretofore submitted to opposite counsel within the proper time.

For the reasons stated, we are of opinion that the trial judge, as against the objection of the successful party, had not the power to sign the bill when presented, and that his refusal was proper.

The judgment of the Qwcuit Court will be reversed, and the petition ordered dismissed.


author: By the Court:

text:
    Mineral City v. Render.

      Incorporated villages — Rights and duties of marshal.

    Complaint being made by the marshal of a village against a person for the violation of an ordinance, and such person being arrested by the marshal under warrant issued upon such complaint, such marshal is not thereby disqualified from performing his duties as marshal, before and during the trial of such case.
    (Decided February 27, 1894.)
    Error to the Circuit Court of Tuscarawas county.

      E. S. Sowers, for plaintiff in error.

      P. S. Olmstead, for defendant in error.
   By the Court:

Upon complaint made by the marshal to the mayor of Mineral City, charging defendant in error with a violation of the prohibition ordinance of the villag’e, a warrant was issued to the marshal for the arrest of defendant in error, and the arrest was made by the marshal. The marshal assisted the mayor in drawing and selecting a jury, served the venire and subpoenas for witnesses, attended the trial as the attending officer of the mayor’s court, called talesman to fill vacancies in the jury, and acted as attending officer during the deliberations of the jury, to all of which defendant in error objected, and objection being overruled, duly excepted.

Held: That the marshal was not, by reason of the facts stated, disqualified from performing his duties as marshal in the trial of the case, and that the objections of the defendant in error were properly overruled.

' Judgment of the circuit court is reversed, and that of the common pleas and mayor is affirmed.


author: Spear, J.

text:
    State ex rel v. McCracken et al. State ex rel v. Commissioners.

      Cotmty clerk — Change of term of office — Legislative control over— When may qualify — Rights of incumbents.

    1. The act of March 2,1893, (90 O. D. 63), amending section 1240, of the Revised Statutes, by providing that “there shall be elected triennially, in each county, a clerk of the court of common pleas, who shall hold his office three years, begining on the first Monday of August next after his election,” is a valid exercise of the legislative power.
    2. The clerks elected thereunder were elected by the people for the term commencing as therein specified, and cannot sooner qualify and enter on the discharge of the duties of the office.
    3. By virtue of section 16 of article 4 of the constitution, present incumbents of the clerk’s office elected in pursuance of the statutes heretofore in force, are entitled to hold until their elected successors may qualify in pursuance of the law under which they were elected.
    (Decided March 6, 1894.)

      The first case above entitled is brought by the attorney general, in quo wa/rranto, in the interest of Berwick A. Barton, against James E. McCracken and David H. Lincoln, for the purpose of having determined the right to fill the office of clerk of the court of common pleas of Morrow county, for the period between February 9, 1894, and August 6, 1894. McCracken was duly elected to the. office of clerk at the November election, 1890, and entered upon the discharge of the duties February 9, 1891. Lincoln was duly elected clerk at the November election, 1893. On December 20, 1893, the commissioners of Morrow county, in anticipation of a supposed vacancy in the office, occasioned by the act of March 2, 1893, -appointed Barton to fill the same, who received a commission and gave bond to the satisfaction of the commissioners. McCracken tendered a bond to the commissioners, covering the period, and • continues to hold the office, claiming that he, in law, has a right to hold the same until August 6, 1894, and until his successor is qualified. The case was submitted on a demurrer to the petition.
    The second case is a motion for a writ of mandamus to compel the board of commissioners of Williams county to approve the bond of the relator, Justus E. Alvord, as clerk of the court of common pleas of said county. Alvord was duly elected clerk at the November election, 1893, and received a commission from the Governor in due form. On February 5, 1894, Alvord executed in due form an official bond, had the same duly approved by the prosecuting attorney, and presented it to the commissioners for their approval. The board refused to approve the bond for the reason that on January 6,'1894, by virtue of an order, and judgment of the Circuit Court of Williams county, they had approved the bond of one Hugh G. Monen, as clerk, for the period from February 9, 1894, to August'6, 1894, he, the said Monen, being then the incumbent of the office by virtue of an election to the same at the November election, 1890, and for the further reason that the bond purported to be for a term commencing on February 9, 1894, instead of August 6, 1894. ' No other objection to the bond existed.
    The main question being common to the two cases, and the two having been heard and submitted together, one report suffices for both.

      J. K. Richards, Attorney General, for the State.

      Mitchell & Bruce, and Olds & Olds, for Berwick A. Barton.

      Jabez Dickey, L. K. Powell, and J. M. McGillivray, for Jas. E. McCracken.

      C. E. Clark, E. N. Huggins, and D. K. Watson, for relator, Justus E. Alvord.

      Jno. M. Killits and Thomas Emery, for Commissioners of Williams county.
   Spear, J.

Two questions arise upon the records:

Is the act of March 2, 1893, amending section 1240, of the Revised Statutes, (90 O. L. 63), which provides that “there shall be elected tri-ennially, in each county, a clerk of the court of common pleas, who shall hold his office three years, beginning on the first Monday of August next after his election,” constitutional?

If it is, is there in consequence, a vacancy in the office of clerk of the court of common pleas ?

The term of office of the clerk of the court of common pleas is fixed by section 16, of article 4. of the constitution, in these words: “There shall be elected in each county, by the electors thereof, one clerk of the court of common pleas, who shall hold his office for the term of three years, and until his successor shall be elected and qualified. ”

Section 4, of the schedule to the constitution, provides that the first election for clerks of the courts of common pleas, shall be held on the second Tuesday of October, 1851, and the official term of such clerks, so elected, shall commence on the second Monday of February, 1852.

Section 27, of article 2, of the constitution, provides that the election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution, or the constitution of the United States, shall be made in such manner as may be directed by law.

Section 1, of article 2, of the constitution, provides that' “The legislative power of this state shall be vested in a general assembly, which shall consist of a senate, and house of representatives.”

From the foregoing we conclude:

1. That the term of the clerk, as fixed by the constitution, is three years, and until his successor is elected and qualified.

2. That the time- for the commencement of the terms of office of the clerks elected at the first election after the adoption of the constitution was the second Monday of February, 1852 (the 9th). But the placing of the provision in the schedule, a device of a temporary character, “designed simply to effect the transfer, without friction or disorder, of the administration of the powers of government from functionaries elected or appointed under the old, to those to be elected or appointed under the new constitution,” (The State ex rel. v. Taylor, 15 Ohio St. 142), instead of in the body of the constitution in which the permanent provisions have been incorporated, as well as the language of the clause itself, indicates a purpose not to fix the time for the commencement of the term of any of their successors. Hence:

3. There is no invariable period of the year fixed for the commencement of the terms of such clerks. The State ex rel. v. Niebling, 6 Ohio St. 40.

4. There being no time for the commencement of the term fixed by the constitution, the authority to fix the time is, necessarily, vested in the general assembly, and such authority is plainly given by section 1, of article 2, lodging all legislative power in that body, and by section 27 of the same article, providing that where the election is not provided by the constitution, the same shall be made in such manner as may be directed by law.

5. The general assembly, therefore, had power to pass the act of March 2, 1893, providing that the term of office of clerks thereafter elected should begin on the first Monday of August next after their election, and such act is not unconstitutional.

In support of the claim of the relator, Alvord, it is contended that the act is invalid because it operates to extend the term of office of the incumbent clerk, and the legislature is, as was held in The State ex rel. v. Brewster, 44 Ohio St. 589, without authority to extend the term of an office which has been fixed and limited by the constitution.

The assumption, we think, is not warranted. The act in question does not purport to extend the term of. the incumbent, nor does it in effect do that. The result" of this legislation upon the incumbent depends wholly on the constitution. If, by virtue of section 16, of article 4, a vacancy is created, then the term of the incumbent is not extended ; if, under that section, no vacancy ensues, it is the force and effect of the constitution, and not the statute, which extends the term. This is easily tested by supposing that the constitutional provision in regard to clerks had been the same as that regarding county auditors. In such case no question of the effect of the act upon the right of the incumbent could possibly arise.

In support of the claim of Berwick A. Barton, it is contended that the effect of the statute of March 2, 1893, is to create a vacancy in the office of clerk, because such clerk is a county officer, and section 2, of article 10, of the constitution provides that ‘ ‘ county officers shall hold their office for such term, not exceeding three years, as may be provided by law.”

It is, we think, a sufficient answer to this proposition to say that the purpose of the framers of the constitution, by the adoption of section 16, of article 4, to take the office of clerk of the court out of the operation of the terms of section 2, of article 10, is so plain as to be practically beyond question. One is a general provision; the other a special one. In such case the latter controls. But it is further insisted that a proper construction of the language of section 16, of article 4, limits the right of the incumbent to hold over to some accidental contingency, such as illness, or inability, or neglect to qualify by the successor for a short time, but cannot be held to apply to a case where the interregnum extends over an unreasonable time, as for six months.

The effect of this construction would be to create vacancies in the present cases. The recognized policy of the state is to avoid, if practicable, the creation of a vacancy in an elective office, and where the right to hold over is given in language that is not limited, and the same is not otherwise qualified, a court would hardly be justified in seeking for an unnatural construction by which a limit would be placed upon the right. Here the words are: “And until his successor is elected and qualified,” and nothing is found in the context to restrict the natural import of the text as given in the section quoted.

In contemplation of law there can be no vacancy in an office so long as there is a person in possession of the office legally qualified to perform the duties. This conclusion is distinctly supported by the holding in The State ex rel. v. Howe, 25 Ohio St. 588: “That the framers of the constitution, in providing for filling vacancies in office, did -not regard an office as vacant, when an incumbent might lawfully hold over his definite term until a successor was elected or appointed and qualified, is manifest from other provisions in the instrument. By section 4 of article 10, the duration of the term of township officers is fixed at one year from the Monday next succeeding their election, and until their successors are qualified. It would hardly be contended that, under this provision, a township office becomes vacant at the end of the year, from the mere fact that no successor to the incumbent has qualified. ”

We think there is no vacancy in the office of clerk of the court of common pleas, but that the persons'duly elected, and holding on February 8,, 1894, are entitled to perform the duties until their successors, respectively, elected .at the November election, 1893, are qualified.

In the quo wa/rrcmto case the demurrer to the petition will be sustained, and the petition dismissed. In the other case the motion for writ of mandamus will be overruled.

Mustshall, J., dissents.-


author: Bradbury, J.

text:
    Railroad Company v. Margrat.

      Railroad. Companies — Employes—“ Separate branch or department ” — What is — Superior—Evidence of. ,
    1. An engineer in charge of a locomotive on one train of cars of a railroad company, is in a branch or department of its service separate from that of a brakeman on another train of the same company, within the meaning of the terms “ separate branch or department,” as those terms are employed in section 3, of the act of April 1, 1890, 87 Ohio Laws, 150.
    2. An engineer in charge of a locomotive, who has authority to direct or control a fireman serving on the same locomotive, is a “ superior” within the meaning of the above named section.
    3. Whether an engineer, or other employe, of a railroad company, has authority to direct or control other employes of the same company, is a question of fact to be determined in each case. This may be done, however, either by proof of express authority, or by showing the exercise of such authority to be customary, or according to the usual course of conducting the business of the particular company interested, or of railroad companies generally.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Lucas county.
    The defendant in error recovered a judgment against the plaintiff in error, in the Court of Common Pleas of Lucas county, on account of personal injury received by Mm while engaged in its service. This judgment was affirmed by the circuit court; whereupon the plaintiff in error instituted the present proceedings in this court to obtain a reversal of both judgments.
    Swayne, Swayne & Hayes, for plaintiff in error.
    There was nothing to show that there was time to blow the whistle and ring the bell between the the time Margrat went on the track and the time the engine struck him.
    There is nothing to show that the engineer, of engine 8 knew or ought to have known that Margrat was on the track, or that he knew or ought to have known it in time to stop the engine before striking him..
    There is nothing to show that the engineer knew or ought to have known that employes would be upon the track, and if he did, we submit that, as Margrat states in his petition that if he ran along the ties of the main track he was in danger of being run over by passing cars, the engineer of engine 8 had a right to assume that employes in the yard familiar with the continuously recurring movement of the cars would take reasonable precaution against their approach. Aerkfetz v. Humphreys, 145 U. S., 420.
    The omission to give the signals for the highway crossing does not render the company liable to a servant. Railroad Company v. Depew, 40 Ohio St., 126.
    We claim, therefore, that Margrat was clearly guily of contributory negligence. Railroad Company v. Depew, 40 Ohio St., 121; Aerkfetz v. Humphreys, 145 U. S., 418.
    Margrat, in his amended petition, sets forth “that the light engine was manned by an engineer and fireman, the fireman being under the orders and command of the engineer, and both working on different trains at different places and being in a separate department of the service of defendant from the plaintiff, and that the plaintiff had no power to direct or control on the freight train or in the branch or department of said company in which he worked.” These allegations proved, the plaintiff claimed the right of recovery under the Act of 1890, vol. 87, Ohio Laws, 150, Sec. 3.
    Under the act of 1890, Margrat was required to show:

      a. That the person who injured him was in charge or control of employes, and,

      b. In a separate branch or department of the company’s service.
    Tiie definition of “charge” is anything committed to another’s custody, concern or management, and of “control,” to direct,regulate, govern, dominate.
    The charge or control contemplated by the statute is, we submit, the dominion “which essentially pertains to the prerogatives of the owner; and in its exercise he stands in the place of the owner.” R. R. Co. v. Keary, 3 Ohio St., 201; Howard v. Denver & Rio Grande R. Co., 24 Am. & Eng. R. Cases, 454.
    The question was raised by both the motion to take the case from the jury and by the request to charge that the engineer was not the superior of the fireman.
    As we have said, prior to the statute of 1890, under the law as then established, the engineer of the light engine would have been held, without question, to be the fellow servant of the plaintiff. P. Ft. W. & C. Ry. Co. v. Devinney, 17 Ohio St. 209.

      •And so the law continued until the passage of Section 3 of the Statute of 1890.
    From section 3 it appears that a further exception has been engrafted upon the law of non-liability of the master for the negligence of a fellow servant, and that is: When an employe of a railroad company, having charge or control of employes in any branch or department, by his negligence causes an injury to an employe in a separate branch or department, the negligence shall be considered that of the superior and not a fellow servant of the injured employe.
    The theory of the statute is apparently that of respondeat superior, which is, of course, that a master is liable to a stranger for the negligence of his servants. Then the branches or departments are considered as so many distinct enterprises, to all of which, except his own, the injured servant is a stranger. He, therefore, is not a “fellow servant” nor in a “common employment” with the employe of the common master in a separate branch or department, whose negligence has caused an injury to him. Brodeur v. Valley Falls Co. 17 Atl. Rep., 55; Farwell Case, 4 Metcalf, 49; Howard v. Denver & Rio Grande R. R. Co., 24 Am. & Eng. R. Cases, 452.
    We claim that the word “department” should be given a broad sense. In the Whaalan case, 8 Ohio St., 249, where a car repairer was injured by the foreman of a passing engine, who threw a stick of wood from a train which struck and injured the plaintiff, the department principle was passed upon by the court, which held that, while there may be departments of duty in the business of a common employer so distinct from each other as to require an exception to be made to the application of the general rule of non-liability of master for the negligence of one servant to another, that the Whaalan case did not create such an exception. Manville v. Railroad Company, 11 Ohio St., 417; Railroad Company v. Baugh, 149 U. S., 389; Ryan v. Chicago, etc. R. Co., 60 Ill., 174; Randall v. B. & O. R. R. Co., 109 U. S., 478; Railroad Co. v. Shultz, 43 Ohio St., 270.

      Harvey Scribner, for defendant in error.
    If the engineer had used reasonable care he might have seen Margrat in time to take the necessary precautions to save him, and admitting Margrat to have been negligent, in going upon the track, the company is still liable if the negligence of the engineer occasioned the injury after he discovered, or by the use of reasonable care might have discovered his (Margrat’s) peril. Scoville v. R. R., 22 Am. & Eng. R. R. Cases, 534; Patterson, 53; St. Ry. v. Steem, 19 Am. & Eng. R. R. Cases, 30; 42 Arkansas, 321; Austin v. Steamboat Company, 43 N. Y., 75; Thompson on Negligence, Vol. 2, page 1157; Kerwhacker v. Railroad, 3 Ohio St., 189; Romick, Admr. v. R. R., 15 Am. & Eng. R. R. Cases, 288; R. R. v. Kassen, 49 Ohio St., 230.
    The case comes within section 3 of the act passed April 2, 1890, O. L. Vol. 87, p. 150.
    The relations between the engineer of No. 8 and his fireman were those usually existing between an engineer and fireman on a locomotive. R. R. v. Maranda, Admx., 17 Am. & Eng. R. R. Cases, 108, 111, 576; R. R. v. Morganstern, 12 Am. & Eng. R. R. Cases, 228; Cooper v. Mull, 30 Ga., 150; R. R. v. Carrol, Admr., 6 Tenn., 347.
    Manifestly the legislature intended by the adoption of this statute to impart into, or incorporate with, it, the law in such states as hold that there may be different departments in the same service; and that where a person engaged in one department is injured by a person engaged in another department, provided that person has employes under him, that the company shall be held liable — treating the person whose fault caused the injury as a sort of vice-principal.
    As to what constitutes different departments within the meaning of this statute, a number of eases are collected in Kinney on Fellow Servants, under section 75, many of which hold, under the rule where that doctrine is applied, that the plaintiff in this case was engaged in a different department from that in which the engineer was engaged. 77 Ill., 391; Dick v. R. R. Co., 38 Ohio St., 389.

      Frank H. Hurd, also, for defendant in error.
    The only question of law, I apprehend, which is presented by the record in this ease, is involved in the construction to be given to section 3 of the act of April 2, 1890.
    The enactment of this section was no doubt a result of a well understood doctrine of the general law, that the master was not liable for a personal injury inflicted upon a servant by the carelessness or negligence of a fellow servant in the course of the common employment. The object of the enactment was plainly to modify that doctrine, so as to make the master liable for acts of a servant, for which he would not have been responsible before the passage of the act.
    In the second place, .the statute recognizes the Ohio doctrine, as it is called, and incorporates the law as it has been laid down by our courts for the first time, into a legislative enactment. Berea Stone Company v. Kraft, 31 Ohio St., 287, 292.
    The new rule as to servants in a common employment established in this section is to be found in the last paragraph, beginning’ with the word “also.”
    This provided that the relation of fellow servants shall not exist between two employes of. the same master. These employes are classified as follows: (1). A person in the employ of the company. (2). Having charge or control of employes. (3). In any separate branch, or, (4) department.
    (1) . As to the element of employment nothing need be said. The section plainly provides that the person to whom its provisions relate shall be servants of the railroad company.
    (2) . The second element is employment in different branches or departments of the company. These words are used in their ordinary and accepted meaning. They are not words of equivalent signification.
    (3) . The third element in defining the superior is that the person shall have charge or control of employes in his separate branch or department. This seems clear and requires no construction. The person referred to is any one who has charge or control of employes in a branch or department.
    (4) . That provides that the person first described shall be regarded as the person superior to employes in any other branch or department who have no power to direct or control in the branch or department in which they are employed.
   Bradbury, J.

Upon the trial of the case in the court of common pleas, the defendant in error, having introduced his evidence and rested, the plaintiff in error moved that court to direct the jury to return a verdict in its favor; which motion being overruled, it entered an exception. It is upon this exception that the questions arise which we deem material to a decision of- the ease.

That Margrat, while in the service of the plaintiff in error, received the injuries of which he complained, was not disputed; but plaintiff in error contends that the evidence introduced by Margrat disclosed: 1st. That those injuries resulted from his own negligence; 2d, That his evidence did not show negligence on its part; and 3d, That if negligence of its servants was shown, the negligence was that of one who was a fellow servant of Margrat, for which it was not liable.

Margrat was in the service of the plaintiff in error, as brakeman; a part of his duties being to help switch ears in its yards at Deshler in this state, and while there engaged in switching, received the injuries of which he complained, from a locomotive, which, manned by an engineer and fireman, came up from behind and ran over him. Counsel for plaintiff in error, contend that he should have either kept off the track altogether, or maintained a lookout for locomotives and ears. The accident occurred about midday; and if it appeared, simply, that Margrat was on the main track of the company’s roadway, and without looking or listening,- permitted a locomotive to run him down, the presumption that he was negligent would, perhaps be irresistible. Other facts however appeared.

The evidence tended to show that two cars standing in the yard were to be coupled to the train, of which Margrat formed a part of the crew; that he was directed to assist in making the coupling, and being then near the front of the train had to pass to its rear to perform this duty; that his train stood on a side track, which for, probably, four hundred to six hundred feet from its connection with the main track, ran northward close to and parallel with the main track; that the space between the two tracks was icy, causing its use to be difficult and somewhat dangerous as a way for passing to the rear of the train at the speed Margrat’s duties required him to move; that his train began to move backward towards the cars to be coupled, just as he started towards them; that it was quite difficult, if not wholly impracticable, for him to pass along on the outside of the side track over which his train had begun to back. The only choice of a practicable way then, open to him by which to pass to the rear of the backing train to make the coupling, was to go along the main track, or along the space between the main track and the side track. If he chose the latter it threw him close to his moving train, and the ground being slippery and uneven, he might be in danger of falling’ under the cars of which it was composed.

Under these circumstances we think it was the duty of the court of common pleas to submit to the .jury the question whether Margrat was or was not negligent in choosing the main track, rather than the space between the two tracks, to pass to the rear of his train to make the coupling in question.

It is further contended that if it was not negligent for Margrat to go upon the track as he did, yet, having gone upon it, he was negligent in permitting’ the locomotive to overtake and run him down; that being on the track he should have looked and listened, and if he had done so it would have been impossible for the locomotive to take him, unaware, as it did.

We are not disposed to ignore or doubt the rule, that under ordinary circumstances, one who goes upon a railroad track should be held to the duty of using his senses of sight and hearing, and, if injured by reason of failing to do so, must abide the consequences; but this rule is not to be extended so as to deny, in all cases, relief to one who may be injured on account of such failure. Conditions may exist which will excuse it. Did they exist in the case under consideration? The evidence tends to show that Margrat, when the time arrived to do the switching in question was sitting on the locomotive of, his train; that he then looked up and down the track, and although his view extended a great distance in both directions, he saw nothing at all on the main track, but did see the engine that afterwards run him down, standing on a side track, about fifteen hundred feet away; that he stepped from the locomotive, with his back towards the distant engine, and proceeded, as we have before seen, along just outside the main track, towards the cars to be coupled. This led him away from and kept his back towards the distant engine. That as the cars to be coupled were to be added to the train that Margrat was connected with, this train began to back towards them as Margrat stepped from the locomotive on which he had been sitting’. It was his duty to pass along this train to its rear, as we have seen, so as to be ready to make the coupling when the ears to be coupled were reached. This required some quickness„of movement on the part of Margrat, depending upon the length of his train and the rate of speed at which it was moving, neither of which is very clearly shown. But whatever that length, or rate of speed, or the quickness of Margrat’s movements may have been, he was overtaken and run down by this distant engine before he reached the point where the coupling was to be made. No doubt, if he had kept a lookout behind him, the accident would not have occurred. But we do not think the omission to do so, necessarily constitutes negligence, when considered in connection with the other circumstances that the jury were authorized to find from the evidence just noticed. They could have found that he looked in both directions just before stepping on the track; that no object was in sight from which danger could be apprehended, except this locomotive, then standing fifteen hundred feet distant on a side track; that he knew, if the locomotive should come upon the main track and follow after him that he would not thereby be endangered, unless the crew in charge of it should be grossly negligent; for he would be in plain view of them, at a place where switching was not uncommon, and men, therefore, might be expected to be on the tracks; all of which made their duty to maintain a constant outlook, - clear and urgent; that he would only remain on the track a few minutes and was in the performance of a duty requiring his attention. We think the question whether, under these circumstances, his failure to anticipate such gross negligence, by omitting to look behind him for this locomotive, was or was not negligent, fell within the province of the jury, and was therefore rightfully submitted to them for determination.

As to the negligence of the plaintiff in error. The evidence tended, as already shown, to prove that Margrat was in plain view from the locomotive which injured him, from the moment it started, fifteen hundred feet away; until it struck him. If the engineer had looked ahead, he would have discovered Margrat moving along the track in the discharge of his duties. If the bell had been rung, or the whistle sounded, Margrat would, probably, have heard one or the other; or even if steam had been turned on, as the engine drew near, the noise its escaping would have made might have given warning. The evidence, however, tended, to prove that hone of these precautions were taken by the engineer, although he was running his engine at quite a high rate of speed through the company’s yards, where brakemen, or other employes of the company might, as we have seen, rightfully be found in the discharge of their duties. Surely, from such evidence, the negligence of the engineer might be inferred.

Was the engineer in charge of this locomotive a fellow servant of Margrat, for the consequences of whose negligence the company was not liable to the latter ? Margrat and the engineer in charge of the locomotive that struck him, were in the employment of the same master. The former was a brakeman on one train, while the latter was an engineer on another train of the same company. Neither had been clothed with authority over the other, therefore the relation of superior and subordinate between them had no existence in fact. In the absence of such relation, their common employer would not be liable to either for injuries received through the negligence of the other, unless the rules of law upon the subject heretofore announced by this court have been abrogated. Whaalan v. Railroad Co., 8 Ohio St., 249; Railway Co. v. Devinney, 17 Ohio St., 197; Railroad Co. v. Webb, 12 Ohio St., 475; Railroad Co. v. Fitzpatrick, 42 Ohio St., 318. It is claimed that this has been done by the legislature in the third section of an act passed April 2, 1890, 87 Ohio Laws, 150, which reads as follows:

“Section 3. That in all actions against the railroad company for personal injury to, or death resulting from personal injury of, anj^ person, while in the employ of such company, arising from the negligence of such company, or any of its officers or employes, it shall be held in addition to the liability now existing by law, that every person in the employ of such company, actually having power or authority to direct or control any other employe of such company, is not the fellow servant, but superior of such other employe; also, that every person in the employ of such company having-charge or control of employes in any separate branch or department, shall be held to be the superior, and not fellow servant, of employes in any other branch or department, who have no power to direct or control in the branch or department in which they are employed. ”

This section explicitly declares an intent to preserve the existing liability of railroad companies for the negligence of its employes towards each other, as well as to add to it. The liability that existed before and at the time this section was enacted into a law is, perhaps, as clearly set forth by the eases of Railroad Co. v. Keary, 3 Ohio St., 201, and Railroad Co. v. Lewis, 33 Ohio St., 196, as in any of the cases bearing upon the subject to be found in our reports. In the sixth and ninth clauses of the syllabus in the first of the above named cases this court declared that:

“6. A principal is not liable to one servant in his employ for injuries resulting from the carelessness of another servant, when both are engaged in a common service* and no power or control is given to the one over the other. They stand as equals to each other, and are alone liable for the.injuries they may occasion.”
“9. The ag’ent or officer intrusted with power and control over the subordinates and the operations of the business,'is not engaged in a common service with them, admitting of joint participation; nor is he, in any just sense, their fellow servant; but their employments are separate and distinct, although both are necessary to a successful result in the business. ”

While, in the second and third clauses of the syllabus of the latter of the two cases, it states, that:

“2. Where, however, a master places, one servant in a position of subordination- to another servant, and the subordinate servant, without fault, is injured through the negligence of the superior servant, while both are acting in the common service, the master is liable therefor. ’ ’
“3. Whether or not one servant is placed by a common master under the control of another servant, thereby creating the relation of superior and subordinate between them, must be determined from the evidence in each particular case. ”

Now, if the express rules of a railway company, or its recognized custom, gives to an engineer in charge of a locomotive authority to direct or control a fireman in the discharge of his duties on the same locomotive, then the relation of superior and subordinate is created between the two; and it would seem that the principles announced in the foregoing syllabi would render the company liable to the latter for an injury resulting to him through the negligence of the former, while both were acting in the common service. The remedy was so complete, where the relation of superior and subordinate actually existed, that the statute, here, could have little or no operation. Still, it may be said that the statute makes the rule of liability of certain and universal application, denying any exception to its operation, wherever the relation of subordinate and superior exists, and the subordinate is injured by the negligence of the superior, while engaged in the common service.

The relation of superior and subordinate, however, did not actually exist between Margrat and the engineer by whose negligence he was injured; for, as we have seen, they belonged to different trains and the latter therefore had no authority to. command or direct the former in discharging his duties. But the statute, we think, declares that relation to exist, as a matter of law, for the purpose of charging the company, if the engineer was the superior of — that is, was authorized to command or direct — any co-employe whatever, and Margrat was without such authority. They must have been in “separate” branches or departments of the company’s service, for the section so declares. The section, however, makes no attempt to define the terms, “department,” and “branches;” but these terms should not be limited so as to embrace, merely, those larg’e divisions, created for convenience in administering the affairs of the company. On the contrary, it is more reasonable to suppose that they relate to those minute ones which concern the daily duties of the employes. Those terms are general and comprehensive; but as the legislature discloses no purpose, in this connection, to regulate the internal affairs of a railway company, it. should not be presumed to refer to divisions of its business made for its own ends; and if not to such divisions, what divisions could it mean but those which divide up the employes while in actual service. The section expressly declares a purpose to enlarge the remedy of the employes for accidents occurring in the course of their employment. This declaration emphasizes the presumption that the terms under consideration should be construed as referring to conditions affecting them, ■ rather than to those which are established by the company for its own purposes.

Without pursuing the matter further, we hold that, under the section of the statue under consideration, an engineer on one train is in a separate branch of the company’s service from that of a brakeman of another train belonging to the same company.

That Margrat was a subordinate — that is, no co-employe was subject to his control or direction — ■ seems to have been conceded. It is contended, however, that no competent evidence was introduced by Margrat tending to prove that a fireman on a locomotive is subordinate to the engineer, and therefore the jury were not authorized to find that the engineer was a superior, for whose negligence the company was liable, if he was in a separate branch of ‘its service from that in which Margrat labored. If it should be conceded that the jury was not authorized to use their common knowledge on the subject, yet, if there was evidence which tended to show that according to the usual course of things, relating to the running of railroad trains, a fireman is subject to the direction and control of the engineer • on the same locomotive, it would be sufficient, and the jury had before it some evidence of this character.

Judgment affirmed.