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    Stoltz et al. v. Carroll, Admx., et al. Richards, Admr., v. Carroll, Admx., et al.

      Error — Incompetent evidence admitted in chancery hearing — Uniform transfer act — Sections 8673-1 to 8673-7, General Code — Apply to trustees, executors and fiduciaries, when — Stock certificate endorsed in blank —Presumption as to ownership— Where endorser receives dividends and votes stock — But certificate in possession of another.

    1. It is error for a court in the bearing of a chancery cause to admit incompetent evidence, especially where it bases its judgment in part upon such incompetent evidence.
    2. The provisions of Sections 8673-1 to 8673-7, inclusive, General Code, known as the uniform transfer act, apply to trustees, executors, administrators and other fiduciaries, where the validity of the transfer is not dependent upon the indorsement or assignment of such trustee, executor, administrator or other fiduciary.
    3. M. indorses -his certificate of stock in blank. Three years later it is found among the effects of P., recently deceased, who has never had it transferred to himself on the books of the company and who during all that time has knowingly permitted M. to vote the stock, draw the dividends and enjoy the privileges and benefits of an owner: Held, Such conduct on the part of P. is inconsistent with absolute ownership, and the presumption of ownership that otherwise would have arisen from such possession and indorsement is thereby overcome.
    (Nos. 16108 and 16110
    Decided April 2, 1919.)
    Error to the Court of Appeals of Crawford county.
    The Ohio Locomotive Crane Company was incorporated in 1909, with a capital stock of $15,000, divided into 150 shares of $100 each. There were five incorporators, of whom were Patriek J. Carroll and Maurice E. Carroll.

      The stock was all subscribed for by the incorporators in equal proportions and certificates for thirty shares issued to each.
    The five stockholders elected themselves directors. Patrick J. Carroll was elected president and served in that capacity and as director to the date of his death, which occurred on January 20, 1916. Maurice E. Carroll was elected treasurer and served in that capacity and as director to the date of his death, which occurred on February 22, 1916.
    On April 13, 1912, The Carroll Foundry & Machine Company, of which Patrick J. Carroll was a heavy stockholder, and Maurice E. Carroll a comparatively small stockholder, issued a check to Patrick J. Carroll for $4,000, which check was cashed in March 1913 by The Ohio Locomotive Crane Company.
    Upon the death of Patrick J. Carroll the certificate for 30 shares of locomotive crane stock, issued to and carried on the books of the company in the name of Maurice E. Carroll, was found in the safety deposit box of Patrick J. Carroll, in an envelope together with the stock of Patrick J. Carroll in said company, marked “Ohio Locomotive Crane,” said certificate being indorsed in blank by M. E. Carroll, the indorsement bearing the date of May 3, 1913.
    This certificate was afterwards delivered to Maurice E. Carroll by Robert Carroll, the minor son of Patrick J. Carroll, and passed from his possession to one C. Fred Vollmer, while Maurice E. Carroll was irrational and on his deathbed. After the death of Maurice E. Carroll the certificate passed from the possession of Vollmer to the widow of Maurice E. Carroll, and from her to A. J. Richards, administrator with the will annexed of the estate of Maurice E. Carroll, who sold it at its appraised value, as a part of the assets of the estate of Maurice E. Carroll, to Albert G. Stoltz, acting for himself, W. H. Picking and Charles Gallinger, the said administrator, Stoltz, Picking and Gallinger being wholly ignorant of the fact that the said stock had ever been in the possession of Patrick J. Carroll, or that the estate of Patrick J. Carroll claimed ownership or interest therein.
    After said sale, this action was instituted in the court of common pleas of Crawford county by Phoebe S. Carroll, as administratrix of the estate of Patrick J. Carroll, deceased, against The Ohio Locomotive Crane Company, Albert G. Stoltz, W. H. Picking, Charles Gallinger, and A. J. Richards, as administrator with the will annexed of the estate of Maurice E. Carroll, deceased, to enjoin said company from transferring said stock upon its books to said Stoltz, Picking and Gallinger, and from permitting said Stoltz, Picking and Gallinger from participation in the management and control of said company, and to require said company to transfer said stock to said administratrix, and to enjoin said administrator from disbursing the money received from said Stoltz in payment therefor. A judgment was recovered against the defendants.
    The case was appealed to the court of appeals of that county, where, judgment was again rendered against the defendants and a separate finding of facts made, which finding is as follows:
    “And the defendants having requested a finding of facts, the court find the same, from the evidence, to be as follows:
    “2. That the defendant, The Ohio Locomotive Crane Company, is a corporation organized under the laws of the state of Ohio, having been so incorporated and organized in 1909, with an authorized capital stock of $15,000.00 divided into 150 shares of $100.00 each.
    “3. That said capital stock was subscribed in the following manner, to-wit: each of the following named parties at the time of the organization of said company subscribed for 30 shares of the capital stock as appears by the corporation book of said corporation, to-wit: P. J. Carroll, M. E. Carroll, C. F. Michael, C. S. Rogers, F. A. Bell; that certificates for said numbers of shares were issued Oct. 14, 1911, in the name of each of said parties, signed by the president and secretary of said corporation. That thereafter, in the year 1913, the said F. A. Bell sold his thirty (30) shares therein to P. J. Carroll, C. F. Michaels and C. Fred Vollmer, each of said parties acquiring ten (10) shares. That all that was ever paid on the certificate for thirty (30) shares issued in the name of M. F. Carroll (otherwise known as Maurice E. Carroll) was paid by sáid P. J. Carroll and this certificate was entered upon the records of said corporation in the name of said M. E. Carroll, and he appeared on the books of said corporation as the owner thereof; that by an agreement between P. J. Carroll and M. E. Carroll, he, M. E. Carroll, was to be permitted to have the dividends on said 30 shares during the term of his natural life, and said certificate was to be issued in his name to qualify him as a member of the board of directors and for purposes of prestige, and if he was able to pay said P. 'J. Carroll therefor he was to have the title thereto, but in the meantime the title and ownership was to remain in P. J. Carroll; M. E. Carroll never paid for the same, or any part thereof, that on the third day of May, 1913, said Maurice E. Carroll, made an absolute transfer and assignment of said certificate for thirty (30) shares of said capital stock and signed his name on the back of said certificate in ink to a form which, with the exceptions of the date and names which were written in ink is in printed form and the whole reading as follows:
    “ ‘For value received........hereby sell, assign and transfer unto...........shares of the capital stock represented by the within certificate, and do hereby irrevocably constitute and appoint........ to transfer the said stock on the books of the within named corporation with full power of substitution in the premises. (signed) M. E. Carroll.
    “ ‘Dated May 3, 1913.
    “ ‘In presence of O. L. Bradley.’
    “That he, the said M. E. Carroll, delivered said certificate so assigned to the said P. J. Carroll.
    “That during the year 1913, and thereafter to the death of P. J. Carroll, and M. E. Carroll in the year 1916, the board of directors of said defendant corporation consisted of P. J. Carroll, M. E. Carroll, C. F. Michaels, C. S. Rogers, and C. Fred Vollmer. That P. J. Carroll was the president of said corporation from the date of its organization until his death, January 20, 1916, and during said time C. F. Michaels was the secretary thereof and M. E. Carroll was the treasurer thereof until his death, which occurred February 22, 1916; that on February 10, 1916, C. F. Michaels became president and C. Fred Vollmer became secretary of said corporation.

      “4. That after the third day of May, 1913, being the date that M. E. Carroll signed said transfer on the back of said certificate, P. J. Carroll, did not have the same transferred to himself upon the books of said company, but retained possession thereof and deposited the same with his personal effects in his safety deposit box at the First National Bank of Bucyrus, Ohio, where said certificate was held and retained by said P. J. Carroll, until his death.
    “That a few days following the death of said P. J. Carroll, said safety deposit box was unlocked by Charles J. Strawbridge, a brother-in-law of said P. J. Carroll together with Robert Carroll, his son, aged nineteen years, and C. Fred Vollmer, and an examination made of its contents for the purpose of ascertaining whether or not said P. J. Carroll had left a will therein; that at said time said certificate for thirty (30) shares of the capital stock of the Ohio Locomotive Crane Company was found in said box by said parties, together with other certificates of stock in various corporations, and other valuable papers, with a rubber around the same and enclosed in one parcel and marked thereon ‘property of P. J. Carroll.’ That in the same box at the same time were certain papers and stock certificates of M. E. Carroll, together with an insurance policy, real estate deeds, a deed executed to Pearl Carroll, a promissory note belonging to her, .and certain other papers of M. E. Carroll, all of which were in a separate package from the papers of P. J. Carroll, as herein described and said separate package had written thereon the words ‘property of M. E. Carroll.’
    “That said safety deposit box could only be unlocked by the use of two keys one of which was held by and controlled by P. J. Carroll at and before the date of his. death, and the master key thereto was held by said First National Bank.
    “5. That within a day or two thereafter said safety deposit box had been examined, for the purpose as stated, by the parties named, it and the contents thereof were again inspected by the same parties for the purpose of discovering whether or-not said P. J. Carroll, then deceased, .had any life insurance policies therein; that at the time of said inspection, said papers and said certificate of stock for 30 shares in the defendant Company, were found in the same condition as hereinbefore stated.
    “That about two weeks after the death of said P. J. Carroll, the said M. E. Carroll requested Robert Carroll, then nineteen years of age, to obtain the key and unlock the said safety box and obtain for him the certificate for the 30 shares in question, for the purpose of him, the said M. E. Carroll, examining the same. That thereupon said Robert Carroll, without the knowledge or consent of his mother, Phoebe S. Carroll, plaintiff in this action, obtained the same and delivered it to M. E. Carroll, who was his uncle, and who retained possession thereof for several days after which the certificate passed into the possession of C. Fred Vollmer who had the same at the time of the death of Maurice E. Carroll.
    “That on the twenty-second day of February, 1916, said M. E. Carroll died; and on or about March 1, 1916, said certificate was, placed by Pearl Carroll, widow of Maurice E. Carroll, who after the death of Maurice E. Carroll received the certificate from C. Fred Vollmer, as having been among the papers of M. E. Carroll, then deceased, among other papers of said M.- E. Carroll, in a safety deposit box in the Bucyrus City Bank, where the same remained until about March 8, 1916.
    “6. That on said March 8, 1916, the defendant, A. J. Richards, was appointed administrator of the estate of M. E. Carroll, and said certificate was delivered to said administrator with other papers and property belonging to M. E. Carroll, and the same was thereafter listed by said administrator among the assets of the estate of M. E. Carroll, and the same was appraised by the appraisers thereof in the sum of $9000.00.
    “7. That a few days after the death of M. E. Carroll, Robert Carroll informed his uncle Charles J. Strawbridge, a brother of the plaintiff herein, that he had taken said certificates for 30 shares from his father’s safety deposit box and had delivered the same over to his uncle, M. E. Carroll, and was told by said Strawbridge that he should not have done so as it belonged to his father, and immediately thereupon Robert Carroll called upon C. Fred Vollmer, who was the secretary of The Ohio Locomotive Crane Company, and at that time still had possession of said certificate, and informed him that the certificate belonged to the estate of his father and demanded the same of him but the same was not delivered to him by the s.aid C. Fred Vollmer.
    “8. That the said M. E. Carroll, died, leaving a last will naming Patrick J. Carroll as executor which was duly probated, and left surviving him his widow Pearl Carroll, but no child of said marriage; that by his will he bequeathed to his several sisters, $13,000.00 with remainder of his estate to his widow absolutely, and further provided in his will that his executor Patrick J. Carroll should sell' so much of his estate as was necessary to pay said legacies, and should be given such time within which to make sale as should be to the best interests of his estate; that Pearl Carroll, his widow, elected not to take under his will. That on March 14, 1916, an inventory and appraisement was made of his estate and the certificate for thirty shares of stock in question and a dividend check of $900 to M. E. Carroll was appraised as the property and assets of the estate of M. E. Carroll, and on March 20, said inventor)'’ was filed in the Probate Court and approved by it.

      “9. That Phoebe S. Carroll, the widow of P. J. Carroll, on January 25, 1916, was appointed administratrix of his estate, and on Febrüary 4, following, an inventory and appraisement of his estate was made, and forty shares of stock of said The Ohio Locomotive Crane Company was appraised as part of his estate, together with a dividend check of $1200.00 declared on said stock, and on Maixh 11, 1916, said inventory was filed in the Probate Court by the,plaintiff herein; that C. Fred Vollmer, while the secretary of The Ohio Locomotive Crane Company, was also one of the appraisers of each of said Carroll estates.
    ‘TO. That on the first day of July, 1916, the defendant, A. J. Richards, as administrator of the estate of M. E. Carroll, filed an application in the Probate Court of Crawford county, Ohio, wherein he had been appointed, and qualified as administrator for authority to sell said 30 shares of stock, as the property of M. E. Carroll, deceased, for cash, at not less than the appraised value thereof, to-wit, $9000.00 at private sale. That on the same date, the Probate Court made an order, of which the following is a part:
    “ ‘On due consideration thereof, the court finds from the evidence that it will be to the advantage and best interests of said estate to sell and transfer said stock at private sale for cash at not less than the full appraised value thereof, to-wit, $9,000.00; and the court finds from the evidence that the widow of said decedent, Pearl Carroll, who is entitled to the remainder of the estate of deceased, under his last will has consented to a s.ale of said stock by said administrator upon the terms aforesaid, and further finds tha.t said estate is perfectly solvent.

      “ Tt is therefore considered and ordered by the court that said administrator be and he hereby is authorized and directed to sell and transfer said shares of stock at not less than the full appraised value thereof, for cash, and that he retain the proceeds in his hands to abide the further order of the court, respecting the same.
    “ ‘(Signed.) Amos Keller, P. J.’
    “That on the said first day of July, 1916, the certificate for 30 shares of stock in question was attempted to be sold by said Richards, administrator, and delivered to the defendant, A. G. Stoltz, who acting for himself and the defendants Picking and Gallinger at the appraised value of $9,000.00 in cash, that said amount was paid by said A. G. Stoltz and the certificate representing said 30 shares was delivered to the said A. G. Stoltz. That it was not assigned on the back thereof by said Richards, administrator; that said attempted sale by said administrator was not reported to the Probate Court, nor was said attempted sale ever confirmed; that the name of the purchaser or purchasers were not inserted in the certificate; that that said sum of $9000.00 was at the time of the commencement of this action, to wit, oh the-day of July, 1916, and still is retained by the said A. J. Richards, administrator aforesaid.
    “11. That after the president and secretary of the defendant corporation, The Ohio Locomotive Crane Company, had notice of the claim of ownership and right of possession of the estate of P. J. Carroll, to the certificate for 30 shares aforesaid, the defendant, A. G. Stoltz, delivered the said certificate to the defendant C. F. Michaels president of the Ohio Locomotive Crane Company, who attempted to cancel the same across the face thereof, and issued at the direction of the defendant, A. G. Stoltz, three certificates for ten shares each, one to the defendant, A. G. Stoltz, one to the defendant, W. H. Picking, and one to the defendant, Charles Gallinger. That said Picking and Gallinger paid to said Stoltz for their respective certificates for ten shares each the sum of $3000.00; that said three 10-shares certificates were signed by the president of said defendant corporation, C. F. Michaels, but the secretary of said corporation, C. Fred Vollmer, defendant herein, refused to sign the same, and the same were not signed by him or by anyone in his place and stead, and said certificates for ten shares each were not delivered to the defendants until after notice of claim of ownership of estate of P. J. Carroll.

      “12. That said Stoltz, Picking and Gallinger at the time of the attempted purchase of said several certificates of stock, relied only on the order of sale made by the Probate Court of Crawford county, Ohio, given to A. J. Richards, administrator aforesaid, to sell said stock, and the inventory and appraisement of said estates and their conduct and attempted purchases were not influenced in any manner or degree by any of the acts or declarations of Patrick J. Carroll during his lifetime; and the court finds that all such acts and declarations of P. J. Carroll harmonize with the arrangement or understanding between P. J. and M. E. Carroll made and maintained the time they both were alive, as hereinbefore set forth.
    “13. That prior to the attempted purchase of said certificate for 30 shares from said A. J. Richards, administrator, said defendant, A. G. Stoltz, caused an investigation to be made of the records of the Probate Court of Crawford county, Ohio, by the defendant, Charles Gallinger, acting as his attorney; also an investigation was made by said attorney prior to said sale, of the corporate books of the defendant corporation. A report was made by Charles Gallinger to said Stoltz that said certificate had been regularly issued and in his opinion the title and possession was in M. E. Carroll and his estate, and that the proceedings in Probate Court were regular and correct.
    “14. That A. J. Richards, administrator at the time of attempting to make sale of said certificate had no notice or knowledge of the removal of said certificate from the safety deposit box of Carroll, nor did said Stoltz, Picking and Gallinger have any notice or knowledge of the removal of certificate from the safety box of said P. J. Carroll; that the sale so attempted to be made by said A. J. Richards, administrator was without any title thereto ;■ that no exceptions have been filed to the inventory and appraisement to either of said Carroll estates.
    “15. That the plaintiff as administratrix of the estate of P. J. Carroll, began this action immediately and without delay after obtaining information that the certificate for the 30 shares of said capital stock was claimed by any one to belong to M. E. Carroll, or his estate.”

      Mr. Charles Gallinger; Messrs. Hoyt, Dustin, Kelley, McKeehan & Andreivs and Mr. Frank Davis, Jr., for plaintiffs in error in Cause No. 16108.

      Mr. Charles F. Schaber; Mr. Smith W. Bennett and Mr. Edward J. Myers, for defendants in error in Cause No. 16108.

      Mr. Edward J. Myers, for plaintiff in error in Cause No. 16110.

      Mr. Charles F. Schaber; Mr. Smith W. Bennett and Mr. Charles Gallinger, for defendants in error in Cause No. 16110.
   Robinson, J.

The finding of facts by the court of appeals is challenged here as being unsupported by any evidence, and we have therefore carefully considered the whole record.

The record discloses no competent evidence tending to support the following, of finding 3, “that by an agreement between P. J. Carroll and M. E. Carroll, he, M. E. Carroll, was to be permitted to have the dividends on said 30 shares during the term of his natural life, and said certificate was. to be issued in his name to qualify him as a member of the board of directors and for purposes of prestige, and if he was able to pay said P. J. Carroll therefor he was to have the title thereto, but in the meantime the title and ownership was to remain in P. J. Carroll; * * * that on the third day of May, 1913, said Maurice E. Carroll, made an absolute transfer and assignment of said certificates for thirty (30) shares of said capital stock * * *. That he, the said M. E. Carroll, delivered said certificate so assigned to the said P. J. Carroll.”

The only evidence on the subject was by the witness C. Fred Vollmer, who is thoroughly discredited by his own conduct, inconsistent with his testimony. He expressed his mere opinion as to what occurred between Maurice E. Carroll and Patrick J. Carroll on this occasion, but upon being pressed by the court admitted that he was not present and that the only conversation he ever had with Maurice E. Carroll with reference to that transaction instead of being an admission supporting his conclusion was the direct opposite.

The record discloses no evidence tending to support the following, of finding 4, “but retained possession thereof and deposited the same with his personal effects in his safety deposit box at the First National Bank of Bucyrus, Ohio, where said certificate was held and retained by said P. J. Carroll, until his death,” except that the certificate, together with other personal effects of both Maurice E. Carroll and Patrick J. Carroll, was found after the death of Patrick J. Carroll in the safety deposit box of Patrick J. Carroll at said bank, to which Patrick J. Carroll carried the only key.

The record discloses no evidence tending to support the following, of finding 4, “that at said time said certificate for thirty (30) shares of the capital stock of the Ohio Locomotive Crane Company was found in said box by said parties, together, with other certificates of stock in various corporations, and other valuable papers, with a rubber around the same and enclosed in one parcel and marked thereon ‘property of P. J. Carroll,’ ” the evidence being that it was found in said box in an envelope marked “Ohio Locomotive Crane,” and in the same envelope with the certificates for 40 shares of locomotive crane admittedly belonging to Patrick J. Carroll; and the.evidence is in conflict as to the certificates for the stock of each in The Carroll Foundry & Machine Company being found in the same envelope.

The following of finding 5, “that at the time of said inspection, said papers and said certificate of stock for 30 shares in the defendant company, were found in the same condition as hereinbefore stated,” is equally unsupported.

We are unable to understand the reasoning of the court in finding 12, “that said Stoltz, Picking and Gallinger at the time of the attempted purchase of said several certificates of stock, relied only on the order of sale made by the Probate Court of'Crawford county, Ohio, given to A. J. Richards, administrator aforesaid, to sell said stock, and the inventory and appraisement of said estates and their conduct and attempted purchases were not influenced in any manner or'degree by any of the acts or declarations of Patrick J. Carroll during his lifetime; and the court finds that all such acts and declarations of P. J. Carroll harmonize with the arrangement or understanding between P. J. and M. E. Carroll made and maintained the time they both were alive, as hereinbefore set forth,” in view of the conclusive and uncontradieted evidence that Patrick J. Carroll had notoriously held Maurice E. Carroll out to the world as the owner of this stock, all of which had come to the knowledge of the plaintiffs in error.

The record discloses finding IS, “That the plaintiff as administratrix of the estate of P. J. Carroll, began this action immediately and without delay after obtaining information that the certificate for the 30 shares of said capital stock was claimed by anyone to belong to M. E. Carroll or his estate,” to be unsupported by any evidence and in contradiction of the evidence.

We are of opinion that many of the errors of fact appearing in the finding are due to the failure of the court to apply and enforce the ordinary rules of admission and rejection of evidence, upon the theory that the cause being tried to a court learned in the law it would not be prejudiced by the introduction of incompetent evidence and in the consideration thereof would be influenced by and would base its judgment only upon the evidence which after careful deliberation it found to be competent.

The finding of facts in this case, based in many instances upon incompetent evidence, proves the fallacy of the theory. There is. no sound logic,' nor any law, which authorizes a chancery court learned in the law to disregard the very rules of admission and rejection of evidence, for the disregard of which that same court would reverse the judgment of a justice of the peace, who errs not from inattention and inapplication but from lack of knowledge. The salutary rules of admissibility and nonadmissibility of evidence are just as potent in a chancery court as in a law court.

The supported facts reduced to essentials then are:

1. The certificates were issued to Maurice E. Carroll, and with the knowledge and consent of Patrick J. Carroll were so carried on the books of the company, and all rights and privileges thereunder were exercised and enjoyed by Maurice E. Carroll during his life.

2. The above situation was advertised to the world, including the plaintiffs in error, by Patrick J. Carroll.

3. The purchase price, $2,000, for said stock was paid to the company by Patrick J. Carroll.

4. Maurice E. Carroll never reimbursed Patrick J. Carroll therefor.

5. The certificate for the 30 shares of stock issued to Maurice E. Carroll was found, indorsed in blank, in the safety deposit box of Patrick J. Carroll at the time of Patrick’s death, the indorsement bearing date about three years prior thereto.

6. The certificate indorsed in blank was by mistake thereafter delivered to Maurice E. Carroll, whose administrator sold it for value to the plaintiffs in error who were purchasers in good faith without notice of any claim thereto of the estate of Patrick J. Carroll or of anyone else.

The uniform transfer act provides:

“Sec. 8673-1. § 1. Title to a certificate and to the shares represented thereby can be transferred only,

"(a) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby * * *.

"Sec. 8673-5. § 5. The delivery of a certificate to transfer title in accordance with the provisions of section 1 [G. C. § 8673-1], is effectual, except as provided in section 7 [G. C. §8673-7], though made by one having no right of possession and having no authority from the owner of the certificate or from the person purporting to transfer the title.

"Sec. 8673-6. § 6. The indorsement of a certificate by the person appearing by the certificate to be the owner of the shares represented thereby is effectual, except as provided in section 7 [G. C. § 8673-7], though the indorser or transferrer,

"(a) Was induced by fraud, duress or mistake, to make the indorsement or delivery, or

"(b) Has revoked the delivery of the certificate, or the authority given by the indorsement or delivery of the certificate, or

“(c) Has died or become legally incapacitated after the indorsement whether before or after the delivery of the certificate, or

“(d) Has received no consideration.

"Sec. 8673-7. § 7. If the indorsement or delivery of a certificate,

"(a) Was procured by fraud or duress, or

"(b) Was made under such mistake as to make the indorsement or delivery inequitable; or .

"If the delivery of a certificate was made. [,]

“(c) Without authority from the owner, or

“(d) After the owner’s death of legal incapacity, the possession of the certificate may be reclaimed and the transfer thereof rescinded, unless:

“(1) The certificate has been transferred to a purchaser for value in good faith without notice of any facts'making the transfer wrongful, or

“(2) The injured person has elected to waive the injury, or has been guilty of laches in endeavoring to enforce his rights.

“Any court of appropriate jurisdiction may enforce specifically such right to reclaim the possession of the certificate or to rescind the transfer thereof and, pending litigation, may enjoin the further transfer of the certificate or impound it.”

Applying the statute to the instant case, Maurice E. Carroll appeared by the certificate to be the owner of the shares represented thereby. He indorsed it in blank (Section 8673-1, General Code).

The possession and the right of possession were in the administratrix of the estate of Patrick J. Carroll, deceased, who, through her agent, delivered it to Maurice E. Carroll by mistake (Section 8673-5, General Code).

Maurice E. Carroll, having possession, but not the right of possession, died, and his administrator delivered the certificate to the plaintiffs in error (Section 8673-6, General Code).

The plaintiffs in error were purchasers for value in good faith without notice of any facts making the transfer wrongful (Section 8673-7, General Code).

It is, however, strenuously contended by the defendant in error Phoebe S. Carroll, as administratrix of the estate of Patrick J. Carroll, deceased, that the transfer of this stock is without the validifying effect of the provisions of the uniform transfer act, for the reasons (1) that Section 8673-2 expressly excludes, it, and (2) that the plaintiffs in error, being-advised that Maurice E. Carroll was dead at the time of the delivery of the certificate, did not come within the saving provision of (d) (1) of Section 8673-7, General Code.

Section 8673-2 reads as follows:

“Nothing in this act shall be construed as enlarging the powers of an infant or other persons lacking full legal capacity, or of a trustee, executor or administrator, or other fiduciary, to make a valid indorsement, assignment or power of attorney.”

It deals exclusively with the power of an executor, etc., to make a valid indorsement, assignment or power of attorney. Both the word “indorsement” and the word “assignment” as used in this statute contemplate a writing passing or attempting to pass title or an interest therein, and since the administrator attempted no such indorsement or assignment of title the section is without application to this case.

The fact that the plaintiffs in error had knowledge of the death of Maurice E. Carroll, and were thereby put upon notice, would only be such notice as would require them to inquire as to the right to sell as between the administrator and the legatees of the estate, and is met by their investigation of the proceedings in the probate court wherein the stock was appraised and returned as property of the estate, wherein an application for an order to sell at private sale was made, and wherein an order was issued directing the administrator to sell at private sale this specific property at the appraisement, and a sale made to them according to the terms of the order.

The fact that the sale was never confirmed is of interest to the purchasers, the legatees, and the administrator, but not to a stranger to that proceeding and to that estate.

It must, therefore, follow that plaintiffs in error, A. G. Stoltz, W. H. Picking, and Charles Gallinger, by virtue of the statutes hereinbefore referred to, took good and indefeasible title to said stock.

This leaves the equities in the fund to be determined between the estates of Patrick J. Carroll and Maurice E. Carroll, and since the court below based upon evidence found that Patrick J. Carroll had paid the purchase price -for said stock, to-wit, $2,000, for Maurice E. Carroll, and that Maurice E. Carroll had never reimbursed him therefor, and since that court found from the evidence that the certificate was in Patrick J. Carroll’s possession, indorsed in blank, and also found that Patrick J. Carroll for approximately three years immediately prior to his death had permitted Maurice E. Carroll to exercise and enjoy all the privileges and benefits of an owner, and since the record is silent as to a delivery of said certificate by Maurice E. Carroll to Patrick J. Carroll, the logical conclusion would be, not that Patrick J. Carroll was the absolute owner — else Patrick J. Carroll would have had said stock transferred to himself upon the books of the company and would have exercised and enjoyed the privileges of ownership, including the receiving of dividends and the voting of said stock — but that he had only, a special ownership therein and that that ownership did not extend to such ownership as would allow him to exercise and enjoy the privileges and benefits of ownership.

And, having, recourse again to the finding of facts, since there is no evidence of any agreement between Patrick J. and Maurice E. Carroll, the only obligation which existed between them was the implied obligation of Maurice E. Carroll to reimburse Patrick J. Carroll for the $2,000 advanced by him to the company in payment of Maurice E. Carroll’s subscription for said stock: and since such reimbursement was never made the reasonable conclusion must be that these certificates were held by Patrick J. Carroll as a pledge for the payment of said sum; at any rate equity will be done by requiring such payment out of the fund.

The judgment of the court below will, therefore, be reversed, and A. J. Richards, as administrator de bonis non with the will annexed of the estate of Maurice E. Carroll, deceased, will be ordered to pay out of the $9,000 in his hands from the sale of said 30 shares of stock, the sum of $2,000 with interest from the 17th day of March, 1913, to Phoebe S. Carroll, as administratrix of the estate of Patrick J. Carroll, deceased.

Judgments reversed and judgments for plaintiffs in error.

Nichols. C. J., Jones, Matthias, Johnson, Donahue and Wanamaker, JJ., concur.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    The Baltimore & Ohio Southwestern Rd. Co. v. Bailey.

      Railroads — Interstate commerce — Relief departments — Not authorized by Federal Employersf Liability Act — But prohibited by Sections 9012, 9013 and 9014, General Code, when — Compulsory membership, withholding wages for dues, and waiver of right to damages — Constitutional law — Freedom of contract— Police power.

    1. In the Federal Employers’ Liability Act, congress covered the responsibility of interstate carriers by railroad to their employes injured in such commerce, and that act supersedes the statutes of the states on the subject; but congress has not in that act or otherwise given authority for the creation and operation of relief associations which employes of carriers engaged in interstate commerce are compelled to join, nor for such association to withhold any part of the wages of an employe against his consent to pay dues therein, nor to require either as a condition to securing employment or being employed.
    2. The freedom of contract guaranteed by the constitution- is not infringed by the provisions of Sections 9012, 9013 and 9014, General Code, which prohibit a corporation from compelling employes to join any association, from withholding any part of the wages or salary of employes for the payment of dues therein, from requiring either as a condition of securing employment or being employed, or from making an agreement with a person about to enter employment whereby he agrees to waive any right to -damages against a railroad company, thereafter arising for personal injury or death, or whereby he agrees to surrender or waive, in case he asserts such right, any other right. -
    3. The provisions of those sections do not conflict, and are not inconsistent, with the Federal Employers’ Liability Act, nor impair its full effect and operation.
    4. Sections 9012, 9013 and 9014, General Code, are valid enactments in the exercise of the police power, not in conflict with the state or federal constitution.
    (No. 15917
    Decided March 25, 1919.)

      Error to the Court of Appeals of Hamilton county.
    Joseph F. ¡Bailey sued the plaintiff in error company to recover the penalties imposed by Section 9014, General Code, on account of certain monthly deductions from his wages, which he alleged the defendant unlawfully, illegally and against the plaintiff’s wishes made for the payment of dues in the relief department maintained by the defendant.
    The petition contained thirteen causes of action to cover the deductions made in as many months. It alleged that the defendant required him as a condition of his employment to join said, relief department, and that said department by its rules and regulations required him to agree to surrender or waive a right of damages against the defendant for personal injuries and to surrender or waive his rights in said department or association in case he asserted his claim for damages against defendant for personal injuries. The petition alleged that defendant illegally and against plaintiff’s wishes deducted and withheld from plaintiff’s salary, as such employe, the sum of four dollars, for the payment of dues in said department, contrary to Section 9012, General Code.
    The answer of the defendant for a first defense set up the statute of limitations of one year as to the first and second causes of action. These two causes of action were subsequently withdrawn by the plaintiff.'

      In the second defense defendant admitted that the plaintiff was -employed by it as a switchman'. It denied that it required him, as a condition of his employment, to join the relief department, and, on the contrary, averred that the plaintiff voluntarily, and without coercion or pressure, and after public notice had been given that no employe of the defendant in the same situation as plaintiff would be required to become a member of said relief department, applied for membership therein. It admitted that at the request and by the authority of plaintiff it withheld from the salary of plaintiff during each of said months the sum of four dollars for the payment of dues in said department, and denied each and every other allegation in the petition contained.
    For a third defense, the defendant set up certain proceedings in quo zvarranto brought by the state of Ohio against The Baltimore & Ohio Railroad Company and decided by the circuit court of Holmes county, Ohio; alleging that in said proceeding The Baltimore & Ohio Railroad Company recovered a judgment against the plaintiff, which judgment was thereafter affirmed by the supreme court of Ohio; that in said suit the state of Ohio sued on behalf of the plaintiff and all other citizens of the state as well as on its own behalf; that by reason thereof this action is barred by said judgment, whereby, defendant avers, it was adjudicated that the relief department of the Baltimore & Ohio railroad was and is a valid and lawful organization; and that said relief department was the same relief department complained of in this cause.

      For a fourth defense the answer alleged that Section 9012, General Code, is in contravention of the 14th Amendment of the Constitution of the United States.
    For a fifth defense, defendant alleged that inasmuch as the supreme court of Ohio had held in the above-mentioned case from the circuit court of Holmes county, affirmed by the supreme court in 88 Ohio St., 539, that this relief department is a lawful organization, and that inasmuch as that company and this defendant have maintained the department on the faith of that decision, if the court were to hold that the plaintiff can recover the penalty sued for it would have the effect of making Sections 9012, 9013 and 9014, General Code, operate as a retroactive law in violation of the constitution of the United States, and would deprive the defendant of its property without due process of law, contrary to the 14th Amendment of the Constitution of the United States.
    The sixth defense was that the plaintiff having received benefits from the benefit department is estopped to claim it is unlawful.
    By an amendment to the answer defendant set up that the federal congress had legislated on the subject as respects interstate commerce by the act of April 22, 1908; that defendant was engaged in interstate commerce and plaintiff was employed by it therein; that the regulations established by congress are exclusive; and that therefore the provisions of the General Code above referred to no long'er have any effect.

      Plaintiff demurred to the third, fourth and fifth defenses and to the amendment to the answer. The demurrer was sustained. The cause was tried to a jury, which rendered a verdict in favor of the plaintiff. Judgment was rendered on this verdict, which was affirmed by the court of appeals, to which judgment error is prosecuted here,

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      Mr. Albert D. Alcorn and Mr. Robert L. Alcorn, for defendant in error.
   Johnson, J.

The assailants of this judgment assert the invalidity of Sections 9012, 9013 and 9014, General Code, for several reasons. Pertinent parts of those sections are as follows:

“Sec. 9012. No corporation directly or indirectly shall compel or require an employe to join any company or association whatsoever, or withhold any part of an employe’s wages or his salary for the payment of dues or assessments in any society or organization, or demand or require either as a condition precedent to securing employment or being employed,” etc.

Section 9013 in substance prohibits the making of any agreement by a railroad company with an employe by which he agrees to waive any right to damages thereafter arising for personal injury or death, or any other right, and Section 9014 provides that all rules, regulations, stipulations and agreements declared unlawful by the next three preceding sections are void. A corporation, association or person violating, or aiding or abetting the violation of either of such sections, for each offense shall forfeit and pay to the person thus wronged or deprived of his. rights not less than fifty nor more than five hundred dollars, to be recovered by a civil action.

Each of the causes of action set up by the plaintiff is predicated upon the allegation that the defendant illegally and against plaintiff’s wishes deducted and withheld from his pay the sum of four dollars for the payment of dues in the relief department.

The question whether the plaintiff was required by the defendant to join the relief association, as a condition of employment, or did so voluntarily, is unimportant in this proceeding, except in so far as it is connected with the question whether the defendant deducted the amount from plaintiff’s pay against his wishes. He joined more than one year before this suit was begun, and, therefore, any cause of action for penalty because of being compelled to join was barred at that time.

The defendant urges that this very relief department was held to be lawful in the case referred to in its answer, The State, ex rel., v. The Baltimore & Ohio Rd. Co., 88 Ohio St., 539. The judgment of the circuit court in that case was affirmed on the authority of P., C., C. & St. L. Ry. Co. v. Cox, 55 Ohio St., 497. In the case last referred to the facts of the case are stated in the syllabus as follows:

“An employe of a railroad company, voluntarily, and with full knowledge of the character and effect of the contract he was assuming, applied for admission to an association composed of the company and a portion of its employes, called the ‘Voluntary Relief Department,’ and being admitted, contracted that the company might deduct from his wages the sum of seventy-five cents per month for the purpose of forming, with other like contributions by other employe members, and contributions, which by the contract the company was obliged to make, a relief fund for the benefit of the employes in case of sickness, accident or death; and contracted, further, that in case of accident, the acceptance by him thereafter of relief from the relief fund so accumulated should have the effect to release the company from liability for damages:

“Held, 1. Such contract is not interdicted by the act of April 2, 1890, 87 O. L., 149, ‘for the prptection and relief of railroad employes,’ etc. 2. The contract is not contrary to public policy. 3. The contract does not lack mutuality. 4. It is based upon a valid consideration.”

Afterwards a quo warranto proceeding was brought to oust the Pennsylvania Company from operating its relief department on the ground that the company was conducting an insurance business and that its contracts were against public policy. (The State, ex rel., v. The P., C., C. & St. L. Ry. Co., 68 Ohio St., 9.) The court sets, out that the association maintained a fund which was created and accumulated by the voluntary contributions from their wages by employes who had applied for membership and that the fund was used for the beneficial purposes stated. The court held that the acts of the company were within its implied powers and were not ultra, vires nor contrary to public policy. Subsequently the legislature passed what is now Section 9010, General Code, which prohibits any railwajr company from establishing or maintaining a relief society which requires its employes to become members thereof, or to enter into an agreement, directly or indirectly, whereby they stipulate to surrender or waive a right of damages against the company for personal injuries or death, or surrender any other right.

It must be said, therefore, with reference to the contention that it has been adjudicated that this relief association is a lawful one — and, therefore, that a judgment to the contrary now would be ex post facto and in violation of the constitution, and that an act of the general assembly under which this particular relief association will become unlawful is retroactive — that the extent to which the adjudications went was that where, as the law then was, the employe “voluntarily, and with full knowledge of the character and effect of the contract he was assuming,” became a member of the voluntary association, the contract was valid.

Now, in this case the petition contains the express averment that the deduction was made from plaintiff’s wages illegally and against the plaintiff’s wishes.

The second defense of the answer makes the direct issue that defendant withheld the amount named from the salary of plaintiff at the request and by the authority of plaintiff, and denies all the other allegations of the petition. This was the issue tried to the jury. Considerable documentary arid oral testimony was introduced in evidence touching this issue. It was resolved by the jury in favor of the plaintiff.

We are bound, therefore, to conclude that these deductions were not made from time to time by the consent, request and authority of the plaintiff, but were made against his consent, and were not voluntary contributions on his part. Therefore, the conduct and management of this relief, department, so far as this plaintiff is concerned, were not such as were approved and held to be legal by the adjudications of this court referred to.

The emphasis placed by the court in P., C., C. & St. L. Ry. Co. v. Cox, supra, upon the fact that the contract of the plaintiff employe in that case was made voluntarily, and with full knowledge of the character and effect of the contract he was assuming, raises a distinct implication that the conclusion announced was as far as the court felt that it was justified in going in the case then before it. There was not applied in the case at bar any retroactive or ex post facto law or adjudication.

Moreover, even if an involuntary relief association had been permitted to conduct its operations prior to the passage of these statutes, that would not justify their continuance thereafter, nor render the statutes invalid or inoperative as. to such association. Contracts and undertakings of the nature of those here in question, made by such associations, which fall within .the inhibition of statutes afterwards passed by the general assembly in the exercise of its police power, would thereby become ineffective. L. & N. Rd. Co. v. Mottley, 219 U. S., 467, and P., B. & W. Rd. Co. v. Schubert, 224 U. S., 603.

It is also contended that these statutes violate the 14th Amendment to the Constitution of the United States. It is sufficient as to this to say that a similar contract was under investigation by the supreme court of the United States in C., B. & Q. Rd. Co. v. McGuire, 219 U. S., 549. McGuire was an employe of the company and a member of its relief association. After his injuries he accepted benefits to the extent of $822. In reference to the Iowa statute concerning relief associations, which is similar to the Ohio statute, the federal supreme court held in the McGuire case that a state has power to prohibit contracts limiting liability for injuries, made in advance of the injuries received, and to provide that the subsequent acceptance of benefits under such contracts shall not constituid satisfaction of the claim for injuries received after the contract, and that such a statute does not impair the liberty of contract guaranteed by the 14th Amendment.

Statutes prescribing penalties for violation of regulatory laws are familiar and their validity established when found reasonable. C., S. & C. Rd. Co. v. Cook, 37 Ohio St., 265; Seaboard Air Line Ry. v. Seegers, 207 U. S., 73; Western Union Telegraph Co. v. James, 162 U. S., 650; L. S. & M. S. Ry. Co. v. Ohio, 173 U. S., 285.

Counsel for plaintiff in error earnestly insist that the federal congress has legislated on the subject as respects interstate commerce by the act of April 26, 1908, the Employers’ Liability Law, and that the regulations prescribed by that law are exclusive. By reason of which it is asserted that the provisions of Sections 9012, 9013, 9014, General Code, can no longer have any effect with relation to interstate commerce. The provisions of the Federal Employers’ Liability Law, which it is contended have this effect, are as follows:

“Sec. 5. 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 the person entitled thereto on account of the injury or death for which said action was brought.” (35 Stats, at Large, 66, c. 149.)

The position taken is that this legislation precludes any action by the states touching relief associations in the manner provided by the Ohio statutes here involved. It is said that the Ohio statute is inconsistent with the policy established by congress; that the federal act, after declaring void all contracts exempting carriers from liability thereby created, instead of giving employes the right to recover penalties on account of such contracts, provides for a set-off against their claims for injuries, etc., of any sums, the carrier has contributed or paid in relief, benefit or indemnity that may have been paid, to the injured employe.

It is elementary that in matters in which congress and the state legislatures have concurrent jurisdiction, the state may legislate until such time as congress acts upon the subject. When the power of congress is exercised that of the state is superseded; and it has been determined in a number of cases by the United States supreme court that the Federal Employers' Liability Act supersedes the common law and the statutes of the states relating to the liability of railroads for injuries to their employes while engaged in interstate commerce. (Mondou v. N. Y., N. H. & H. Rd. Co., 223 U. S., 1, and New York Central Rd. Co. v. Winfield, 244 U. S., 147.) But it is equally well settled that when power was conferred upon congress to regulate commerce between the states it was not intended to cut the states off from the exercise of their police power in prescribing regulations relating to the health, morals, safety and welfare of the citizens, although the regulations might indirectly affect the commerce of the country. Sherlock et al. v. Alling, Admr., 93 U. S., 99, 103.

In referring to the rules which should determine when a federal statute regulating commerce will be held to supersede state legislation in the exercise of police power, Mr. Justice Hughes, in Savage v. Jones, 225 U. S., 501, says at page 525: “When the local police regulation has real relation to the suitable protection of the people of the State, and is reasonable in its requirements, it is not invalid because it may incidentally affect interstate commerce, provided it does not conflict with legislation enacted by Congress pursuant to its constitutional authority.” (Citing many cases.) He further says, at page 533: “If the purpose of the act cannot otherwise be accomplished — if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect — the state law must yield to the regulation of Congress within the sphere of its delegated power.” (Citing cases.) And, further, on the same page: “But the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the State. This principle has had abundant illustration.” (Citing many cases.)

In Atlantic Coast Line Rd. Co. v. State of Georgia, 234 U. S., 280, it was held that congress did not by the passage of the federal safety, appliance act, dealing with the equipment of locomotives as well as of cars, and the act regulating commerce, preclude the states from legislating concerning locomotive headlights, as to which congress had not specifically acted.

In Savage v. Jones, supra, it was held that the passage by congress of the food and drug act of 1906, which prohibited misbranding, did not prohibit the states from regulating the sale and requiring to be affixed a statement of ingredients and minimum percentage of fats and proteins.

In M., K. & T. Ry. Co. v. Haber, 169 U. S., 613, it was held that the federal animal industry act, making it a misdemeanor for any person or corporation to transport cattle known to be affected with contagious disease, did not prevent a state from imposing a civil liability for damages sustained by owners of domestic cattle by reason of the importation of such diseased cattle. In that case it is declared in the syllabus that “The provision in the Kansas act imposing such civil liability is in aid of the obj’ects. which Congress had in view when it passed the Animal Industry Act, and it was passed in execution of a power with which the State did not part when entering the Union, namely, the power to protect the people in the enjoyment of their rights of property, and to provide for the redress of wrongs within its limits, and is not, within the meaning of the Constitution, nor in any just sense, a' regulation of commerce among the States.”

In M., K. & T. Ry. Co. v. Harris, 234 U. S., 412, a statute of a state was. upheld which gave the right to collect an attorney’s fee where small freight claims were not promptly paid by the railroad, although the claims arose out of interstate shipments, and although the Carmack Amendment makes provisions for damages to be recovered by shippers of interstate freight. The supreme court held that the two acts were not inconsistent and that the state statute did not interfere with interstate commerce, although affecting it. In the syllabus it is held:

“A state police regulation designed to promote the payment of small but well founded claims and to discourage litigation in respect thereto, and which only incidentally includes claims arising out of interstate commerce, does not constitute a direct burden on interstate commerce, and is not, in the absence of legislation by Congress on the subject, repugnant to the commerce clause or otherwise in conflict with Federal authority.

“While the Carmack Amendment supersedes state legislation on the subject of the carrier’s liability for loss of interstate shipments, it does not interfere with a state statute incidentally affecting the remedy for enforcing that liability, such as a moderate attorney fee in case of recoverable contested claims for damages.”

In P., C., C. & St. L. Ry. Co. v. Miller, 120 N. E. Rep., 706, decided by the supreme court of Indiana, which is here cited by the plaintiff in error, the plaintiff sued to recover wages earned by him in the employ of the company and retained by it as contributions to a voluntary relief fund. The answé’r of the company contained allegations, admitted by the demurrer of the plaintiff, that the employe voluntarily applied for membership and voluntarily permitted it to retain a portion of his wages each month as a contribution to the relief fund; and that the companies and the employes associated together as a voluntary relief association were engaged in interstate commerce. The court held that the federal statute (the same section as the one here relied on) “impliedly permits the existence of railroad employes’ relief associations, contributed to by both the railroad and employes, and invalidates only those provisions of an employe’s contract of membership therein which release the railroad company from liability.”

The “contribution” in that case was made by the employe voluntarily after voluntary application for membership made by him.

The federal statute declares void any contract or device whatsoever to exempt a carrier from any liability created by the Federal Employers’ Liability Act, but provides that in any action brought against such common carrier under the act it 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 employe.

The Ohio statute likewise prohibits the making of any contract to exempt the company from liability to the employe, and prevents the company from compelling employes, to join any association or from withholding any part of the employe’s wages for the payment of dues in any society or association.

In New York Central Rd. Co. v. Winfield, supra. the scope of the Federal Employers’ Liability Act was involved, and the court, referring to previous cases, says: “It is pointed out that the subject which the act covers is ‘the responsibility of interstate carriers by railroads to their employes injured in such commerce.’ ”

There is nothing whatever in that act, or any other to which our attention has been called, by which congress in any wise regulates relief departments, whether voluntary or involuntary. That is a subject wholly aside from that of giving rights of action for injuries while engaged in interstate commerce. But congress provided that if the railroad company has contributed to any insurance, relief benefit or indemnity, that may have been paid to the injured employe, it may set off that amount in the plaintiff’s action for damages on account of the injury. It is easy to understand that an employe may desire to and may actually join a voluntary relief association and may willingly arrange to contribute to it. And if the company has actually contributed toward the payment of insurance to an injured employe, it may set off the amount so paid in an action against it on account of the injury or death of the employe. The Ohio statute here in question does not abridge or affect in any way the rights of action secured by the federal act or the procedure under it. The provisions of Sections 9012 and 9014, General Code, on which this suit is predicated, simply prevent a company from compelling an employe to join any association or from withholding any part of his wages for payment of dues, and prescribe the penalty for violation thereof. They do not in any way conflict with the provisions of the federal act. As said by the federal supreme court in Savage v. Jones, supra: “There is no question here of conflicting

standards, or of opposition of state to Federal authority.” And to the same effect is Merchants’ Exchange v. Missouri, 248 U. S., 365, decided January 7, 1919.

In P., B. & W. Rd. Co. v. Schubert, 224 U. S., 603, there is included in the syllabus the following:

“Congress has power to enforce the regulations, validly prescribed by the Employers’ Liability Act of 1908, by the provisions of § 5 of the act providing that exemptions from liability shall be void, and that the acceptance of benefits under a relief contract shall not be a bar to recovery.

“In framing the Employers’ Liability Acts of 1906 and 1908 Congress well understood the practice of maintaining relief departments, and by the statute of 1908 Congress enlarged the scope of the clause defining contracts for immunity which should not prevail, and included stipulations which made acceptance of benefits from such relief departments a release from liability.”

Having in mind such relief departments congress “enlarged the scope of the clause defining contracts for immunity which should not prevail.”

It must be kept in mind that in this case the plaintiff is not suing to recover damages for injuries. He sues for a penalty fixed against the company for withholding part of his wages from him against his consent for the payment of dues in the association.

Congress has denounced all contracts of every kind to exempt a company from liability for injury, but allows a set-off of any amount contributed to insurance that has been paid to the injured employe.

We do not think that we would be justified in holding that congress has thereby impliedly permitted involuntary associations, which employes are required to join, and to which they are compelled to pay dues, and has prevented the state by implication from prohibiting such compulsion and such withholding by an exercise of its police power for the protection of its citizens.

Such an implication would not only be strained, but would be contrary to the obvious spirit of the federal statute in which the provisions are found.

Judgment affirmed.

Jones, Matthias, Donahue and Wanamaker, JJ., concur.

Robinson, J., not participating.


author: Wanamaker, J.

text:
    Long v. Long.

      Appropriation of property — Parties — Holder of inchoate right of dowe-r — Right to participate in fund — Inchoate rights construed.

    1. One having an inchoate right of dower is neither a proper or necessary party to an action in condemnation of real estate or any interest therein in the exercise of the power of eminent domain. (Weaver v. Gregg, 6 Ohio St., 547, approved and followed.)
    2. Neither has such person any right to participate in the fund arising from such condemnation proceedings, whether it be for land taken or for damages to the residue.
    3. The right of such person is inchoate, and, therefore, wholly dependent under the laws of Ohio upon survivorship as to any and all property, real or personal.
    (No. 16025
    Decided April 2, 1919.)

      Error to the Court of Appeals of Crawford county.
    Alexander Long and Rilla Long, husband and wife, lived in Polk township, Crawford county, Ohio, on a farm, the fee of which was in Alexander Long. The C, C., C. & St. L. Railway Company brought an action in the probate court of said county to appropriate a part of said land for railroad purposes. The wife, Rilla Long, was not a party to said action. Such proceedings were had that damages were awarded in the sum of $3,410 for lands appropriated, and in the sum of $2,540 for injury to the residue, the total award being $5,950. Shortly thereafter Rilla Long commenced an action in the court of common pleas of Crawford county, asserting that she was entitled to a share of the $5,950, as the fair and reasonable value of her inchoate right of dower, claiming her right of action under favor of Section 11038 et seq., General Code.
    Alexander Long, the defendant, demurred to said petition, which demurrer was overruled and exceptions noted. Upon answer duly made, and issues joined, the court of common pleas found the plaintiff entitled to an inchoate dower in both the compensation and damages in the total amount of $606. Upon appeal taken to the court of appeals this judgment was modified by reducing the sum to $585, for which amount final judgment was. rendered.
    Error is now prosecuted here to reverse that judgment.

      Mr. W. J. Geer, for plaintiff in error.

      Mr. R. V. Sears, for defendant in error.
   Wanamaker, J.

What property rights has the wife in the real property of the husband during the life of both, particularly while living together as husband and wife ?

It is conceded that her property interests in her husband’s real property are declared and defined by statute.

Section 8606, General Code, reads:

“A widow or widower who has not relinguished [relinquished] or been barred of it, shall be endowed of an estate for life in one-third of all the real property of which the deceased consort was seized as an estate of inheritance at any time during the marriage, in one-third of all the real property of which the deceased consort, at decease, held the fee simple in reversion or remainder, and in one-third of all the title or interest that the deceased consort had, at decease, in any real property held by article, bond, or other evidence of claim.”

Section 8607, General Code, reads:

“The widow or widower may remain in the mansion house of the deceased consort, free of charge, for one year, if dower is not sooner assigned. Dower shall not be assigned to a widow or widower in real property of which the deceased consort, at decease, held the fee simple in reversion or remainder, until the termination of the prior estate.”

The universal rule is that the right of either husband or wife in the real property of the other, of which said other died seized, is conditioned solely upon survivorship. If the one claiming such interest die before the one seized of the fee, such death wholly extinguishes such interest. During the life of such consort such interest in realty is usually spoken of as “inchoate right.” Inchoate right is defined by Bouvier — “that which is not yet completed or finished”— and the author states that: “During the husband’s life, a wife has an inchoate right of dower,” citing 2 Blackstone, 130.

It is, in short, merely the beginning of a right that does not ripen unless the one possessing such right in the property of another shall survive.

Now, was the wife a necessary party in the condemnation proceedings had in the probate court of Crawford county? If she was, then by not being made a party her right in the property still exists, and, therefore, she would have no right in the fund. Her right cannot attach to both at the same time.

This question has never been squarely before this court in a condemnation case. However, the property rights of the wife in the real estate of the husband have been before this court in a partition case involving substantially the same question, that of Weaver v. Gregg, 6 Ohio St., 547. That was a case in partition in which the husband of plaintiff was seized as tenant in common of the one undivided fourth of certain lands. The wife of such tenant in common had the “inchoate right of dower?’ The question was, the wife not being a party to the action, did her “inchoate right of dower” pass to the purchaser at partition sale? Did the purchaser take the entire estate free from the right of dower ?

The syllabus in that case reads as follows:

“A sale, under the act ‘to provide for the partition of real estate,’ of an estate held in common, divests the wife of a co-tenant in fee of the estate of her inchoate right of dower therein, and passes the entire estate to the purchaser.”

Judge Brinkerhoff in the opinion ill this case uses the following language:

“Dower is not the result of contract, but is the creature of positive law, founded on reasons of public policy, and subject, while it remains inchoate, to such modifications and qualifications as legislation, for like reasons of public policy, may see proper to impose. Eliza Moore v. The Mayor, Etc., of the City of New York, [8 N. Y.] 4 Selden, 110; in which it was held, that ‘where, in pursuance of an act of the legislature, lands are taken by a municipal corporation for public use, upon an appraisement and payment of their value to the holder of the fee, the corporation acquires an absolute title to them, divested of any inchoate right of dower existing in his wife.’ See also 3 Ohio, 24. * * *

“Now, in case of a sale as provided for in this statute, where the husband is the owner of the fee, and the wife has but a contingent right of dower, how, and to whom, is this distribution of the proceeds of the sale of the estate made? Always, in practice, so far as we know, it is made to the husband, and to him alone. And we think properly; for he is the sole representative of the estate. She has a contingent possibility of interest in it, which may be released, but no property, no actual interest in it which is the subject of grant or assignment. Miller’s Admr. v. Woodson, 14 Ohio, 518. Nor is the value of her possible and contingent interest capable of estimate with any degree of accuracy. Moore v. Mayor, Etc., of New York, ubi sup. And, on this point, we may consider the rule of distribution as settled by the universal and unvarying practice. * * *

“The fact that the wife was not a formal party to the proceeding in partition, does not, we think, at all alter the case. The terms of the statute do not require that she should be made a party, and we see no good reason why it should be required. * * *

“And when the law steps in and divests the husband of his seizin, and turns the realty into personalty, she is, by the act and policy of the law, remitted, in lieu of her inchoate right of dower in the realty, to her inchoate right to a distributive share of the personalty into which it has been transmuted.”

Now if she was not a necessary party, if she did not have such legal or equitable estate in the lands partitioned as to make her a necessary party to the partition suit, upon what principle may it be claimed that the wife was a necessary party to the condemnation suit? In both cases the entire interest of the husband was divested; as much in the condemnation suit as in the partition suit.

The whole interest of her husband is likewise divested under the Weaver case, supra, which case still stands as the law of this state. As. Judge Br inker hoff wisely observes: “And when the law steps in and divests the husband of his seizin, and turns the realty into personalty, she is, by the act and policy of the law, remitted, in lieu of her inchoate right of dower in the realty, to her inchoate right to a distributive share of the personalty into which it has been transmuted.”

Some confusion has arisen in failing to comprehend and apply the full significance of this language. As her interest in the realty was “inchoate,” that is, unavailable to her as a present vested or subsisting interest, so when this real estate was converted to personalty her right therein was still “inchoate,” that is, she did not have a present right to possess it, to seize it, and to use it, because it was still conditioned upon her survivor-ship, the same as her interest in any other personalty of the husband.

It should be noted that Section 11038 et seq., General Code, and the language of these statutes, particularly Section 11042, deal only with “all persons having or claiming an interest, legal or equitable, in the property.” It has long been the well-settled practice in partition suits to make all persons claiming an interest, legal or equitable, in the estate in question, parties to the action, so as to foreclose all interests and give a full and complete title to the premises, but the Weaver case clearly and convincingly declares that the wife has not such an interest, legal or equitable, which requires her to be a party. Her interest in the land in an action to condemn through eminent domain being the same as in action to partition, no good reason can be assigned why she is a necessary party to pass full title to the premises in one action and not in the other.

What are her interests in the fund? As Judge Brinkerhoif well said the right is “inchoate.” May she claim a present pecuniary interest therein? This fund is no different than other personal estate of the husband. No one would claim that she had a right during his lifetime to subject to present possession any part of his personal property to which she might be entitled upon her survivorship.

The soundness of this position is made doubly evident by this supposed case, which might happen any day. Suppose to-day she gets her share in the fund by order of this court. Tomorrow her husband dies. As his surviving widow.she would have her right to again share in the remaining fund, as she would in all other personal and real property. Such a doctrine would give her a double portion as against other interests in the same estate. This policy might prove not only most burdensome to the estate, but grossly unjust and unfair to the interests of the heirs.

Some reliance has been placed upon those cases in which creditors have subjected the estate of the husband to the satisfaction of judgments rendered against him, in which cases the “inchoate” right of dower of the wife was ascertained under the mortality tables and the same exempted from execution. Such judgments, however, clearly proceed out of the humanities of the law, out of a desire to save something for the wife out of property of the husband that has been wholly extinguished so far as the husband’s interest is concerned, from which he will receive no compensation such as arises from cases of eminent domain or a sale in partition. Equity does not call for an extension of the doctrine so far as to permit the wife to share twice in the proceeds from the sale of realty, either through partition or by reason of condemnation proceedings under eminent domain.

The judgment is reversed.

Judgment reversed.

Nichols, C. J., Jones, Matthias, Johnson, Donahue and Robinson, JJ., concur.


author: By the Court.

text:
    The Home Telephone Co. et al. v. Meyers, Admr.

      Wrongful death — Charge to jury — Failure of evidence — Hitching horse to telephone pole — Contact with charged electric light wire — Violation of municipal ordinance — Admissibility of evidence.

    (No. 16009
    Decided April 2, 1919.)
    Error to the Court of Appeals of Madison county.

      Messrs. Miller, Thompson & Dunbar and Mr. R. H. McCloud, for plaintiffs in error.

      Messrs. Badger & Ulrey and Mr. C. R. Horn-beck, for defendant in error.
   By the Court.

The Plain City Home Telephone Company and the village of Plain City jointly used a pole line on the west side of Chillicothe street in said village, the former for its. telephone wires and the latter for its high-tension electric light wires. One of these poles was in front of the home of the deceased, Lee Schoby, who was killed as a result of coming in contact with one of said telephone wires, which was charged with electricity from said high-tension electric wire.

Plaintiff averred that said telephone wire had theretofore broken and was permitted to remain hanging on one side of said pole to within five feet of the ground, and alleged negligence on the part of the company and the village in maintaining a defective and insecure telephone wire, and in permitting it to hang on and along said pole and failing to repair and restore it.

A demurrer to the petition having been overruled, issue was made by answer, which contained a general denial and a charge of negligence on the part of the decedent in that he himself hung said broken telephone wire on the side of the telephone pole and had subsequently come in contact therewith while attempting to hitch his horse to the pole, and further averred that an ordinance was then in force and effect in said village making unlawful the hitching of a horse to any telephone pole. The trial of the case resulted in a verdict for the plaintiff, and the judgment rendered thereon in the common pleas was affirmed by the court of appeals.

It is disclosed by the record that ten days prior to the morning on which he met his death by coming in contact with this telephone wire, which had .become charged with electric current, plaintiff’s decedent had observed such wire sagging down to within a foot or so of the ground, and that he and perhaps two others who were with him had rolled it up and hung it on the side of the telephone pole, the top of the coil being five or six and the bottom about three feet from the ground. It was the contention of the defendants that Schoby hung that wire in such manner as to bring it in contact with the electric light wire supported on the same pole. Evidence was introduced tending to show that because of the proximity of the telephone wire to the electric light wire Schoby knew it would be dangerous when the current was on, s.uch matter having been discussed by Schoby and the two or three others who were present at the time the wire was hung on the pole, at which time the electric lights were off.

This telephone pole was near Schoby’s residence, and evidence was introduced tending to show that on occasions theretofore he had used this pole for a hitching post for his horse. The record also discloses evidence tending to show that about five o’clock on the morning in question, the street lights still burning, Schoby had driven his horse to a point in front of his house near this pole; that after he had been felled by the electric current his horse was standing about two feet from the pole, with his head toward it, and the body of the decedent was on the ground near the pole, and on the side opposite the coil of telephone wire, and also that the hitching rope was under his body and in the right hand. The burns were on the left hand.

In view of this evidence the contention of the defendants, that language used by the trial court in the general charge was. erroneous and prejudicial, is well founded, for the court there stated to the jury that “the evidence failed entirely to show that at the time the deceased received the injury complained of he was hitching his horse to the telephone or telegraph pole.” This instruction was given in connection with the statement that the pleading of the defense as to a violation of the ordinance was immaterial and that the ordinance need not be considered by the jury because the evidence did not disclose that it had been violated. We find that it was not error to exclude the ordinance, yet the language used completely and effectually took from the consideration of the jury facts and circumstances disclosed by the record which tend to show that Schoby at the time he was injured was hitching his horse to the telephone pole. Such instruction was equivalent to saying to the jury that they should take it as an established and uncontradicted fact that Schoby was not hitching his horse to the pole whereon this wire had been previously hung. It must be borne in mind in this connection that Schoby had assisted in coiling the wire and hanging it on that pole. The evidence to which we have referred was clearly admissible. Indeed the trial court had recognized the competency thereof and the right of the defense to have it considered by the jury; not only by permitting it to be given, but by thereafter overruling a motion of the plaintiff to strike out the evidence of the principal witness for the defense on that subject. The weight and probative effect of such evidence, as well as the inference to be drawn therefrom, were for the jury. We find no other error prejudicial to the plaintiffs in error.

The answer did not aver nor did the evidence disclose a violation of the ordinance above referred to and for that reason there was no error in sustaining an objection to the introduction of the ordinance in evidence; nor was. there error in giving the special instruction before argument relative thereto.

For the reasons above stated the judgment of the court of appeals affirming the common pleas is- reversed, and the case is remanded to the court of common pleas for further proceeding.

Judgment reversed.

Nichols, C. J., Jones, Matthias and Wanamaker, JJ., concur.

Robinson, J., not participating.


author: Nichols, C. J.

text:
    The Employers’ Liability Assurance Corp. v. Roehm.

      Insurance — Indemnity — Construction of policy — Notice to insurer — Time of essence of contract, when — Trivial injury subsequently proves serious — Whether notice given within time — Question for jury — Accident insurance ■ — Loss of eyesight develops after slight injury.

    A provision in a policy of indemnity insurance, to the effect that written notice should be given the company within 30 days from the date of sustaining the injury, is of the essence of the contract, and like other contracts should be construed so as to give effect to the intention and express language of the parties. This rule of law is subject to the qualification, that if at the time of the accident, and within the period stipulated for the giving of notice, no reasonable ground existed warranting a belief that the injury was anything but trivial in its character, not justifying a claim for damages, and it subsequently develops that as a result of such accident serious consequences have ensued, and that immediately upon being advised of this fact the insured gives written notice to the insurer, the question whether the notice was given within time is not a matter of law, but is a question for the determination of a jury. (The last clause of the fourth proposition of the syllabus in the case of The Travelers’ Insurance Co. v. Myers & Co., 62 Ohio St., 529, is disapproved.)
    (No. 16123
    Decided April 2, 1919.)
    Error to the Court of Appeals of Montgomery county.
    The facts are stated in the opinion.

      Messrs. McMahon & McMahon, for plaintiff in error.

      Messrs. Breene, Dwyer & Finn, for defendant in error.
   Nichols, C. J.

The defendant in error, John Roehm, while engaged in a game of basket ball, on ......day of June, 1914, in the city of Dayton, Ohio, was accidentally struck a hard blow in the left eye. Although immediately seeking medical treatment, neither he nor his physician apprehended any serious injury from the blow. For about ten months thereafter he attended to his ordinary business, wholly without appreciation that his sight was other than normal. Consulting another physician in April, 1915, he learned for the first time that as a direct result of such accidental blow he had lost the greater part of the vision of the injured eye. He thereupon submitted to treatment, in endeavor to save his sight; all, however, without relief, the final outcome of the affair being the entire loss of the sight of both eyes. Immediately after becoming aware of the fact that serious injury had been occasioned by the blow, due notice was given the insurance company.

At the time the defendant in error met with the accident he was the holder of a policy in The Employers’ Liability Assurance Corporation, Ltd., which insured him “against bodily injuries during the term of the policy.” This policy contained the following provision on the subject of notice: “No claim shall be valid on account of any injuries, fatal or otherwise, unless written notice is given to the company within thirty days from the date of sustaining any injuries, fatal or otherwise (unless such notice may be shown not to have been reasonably possible), for which claim is to be made.”

In August, 1917, within a month of the time that full knowledge was available as to the ultimate extent of the injury, action was entered in the common pleas court of Montgomery county to recover on the policy.

The insurance company demurred to the petition, its position being that since the petition showed that notice was not given of the happening of the accident, within the time stipulated by the policy, namely thirty days, the plaintiff was without remedy.

From the time the blow on the eye was received until the serving of the notice, a period of quite ten months elapsed, so unless circumstances are disclosed constituting a legal .excuse for failure to serve notice sooner, and within the period of thirty days, the demurrer to the petition was properly sustained by the court of common pleas of Montgomery county.

The only excuse recognized by the company for failure to serve notice is that the service of such notice was not reasonably possible. It is claimed by the company that this excusing clause has no relation to the injury itself, or its nature and extent, but relates wholly to some condition that the insured might have found himself in at the time — for instance, continued delirium, or some state of mind that would have rendered him practically unaccountable in law for his conduct. It refuses to recognize that any uncertainty as to the extent of the injury, or even the belief on the part of the insured that the injury was so insignificant that he did not want to dignify it by presenting a claim therefor, constitutes any excuse under this clause for failure to give notice.

The position of the defendant in error is that his conduct was entirely consistent with the attitude of a reasonable and prudent man; that, so long as he was unaware that any consequence of a serious nature was to be apprehended, he had decided to refrain from presenting a claim, and therefore notice was unnecessary; and that it was only when the truth had forced itself on his. attention, that the very serious effect soon thereafter realized to the fullest, was likely to follow, that he felt he had a valid claim under the policy, and that then he immediately gave the required notice.

The question for determination is: Do the facts alleged in the petition justify the holding that as a matter of law the plaintiff is to be denied recovery, or are they such as to require the submission of the cause to a jury for its solution?

We are of opinion that the failure of the plaintiff to notify the company of the fact that he had suffered a blow over the eye, within the thirty-day period, will not necessarily operate to defeat a recovery. His conduct between the day that the blow was inflicted and the day that the terrible possibility fell on him like a thunderbolt was highly commendable, if not exceptional. It showed a high regard for the rights of the insurance company, for, all too often, very slight injuries are made the basis of a claim for indemnity. It would seem a poor reward for virtue, if conduct of this character were to be made the groundwork for a successful defense against recovery for a grievous loss. It would penalize a decent regard for the rights of others and put a premium on that sort of conduct that carries insurance for profit rather than protection.

It would seem quite clear that the entire lack of knowledge, or even apprehension, on Roehm’s part, that any serious result was to follow from the accidental blow, creates a condition fairly within the terms of the policy excusing notice. At no time within the period of ten months would it have been possible for him to give notice of a state of facts entirely unknown to and unsuspected by himself.

It is recognized in every jurisdiction that provisions as .to notice must be reasonably construed; indeed, the authorities generally hold that such provisions should be liberally construed in favor of the insured. Much the greater weight of authority outside of Ohio supports the doctrine that notice given immediately after the extent of the injury is brought to the knowledge of the insured is a compliance with the requirement that notice must be given within a time reasonably possible after the happening of the accident.

In the case of Maryland Casualty Co. v. Ohle, 120 Md., 371, 87 Atl. Rep., 763, the court held in effect that under a clause in an accident insurance policy, which required notice of injury to be given as soon as might be reasonably possible, a notice given by a physician of loss of sight, due to infection during an operation, five months after the injury was received, but as soon as he learned that his sight was destroyed, was sufficient.

Practically the same doctrine was announced by the supreme court of Pennsylvania in the case of People's Mutual Accident Co. v. Smith, 126 Pa. St., 317. Similar views were evidently held by the supreme court of Nebraska, as announced in the case of Midland Glass & Paint Co. v. Ocean Accident & Guarantee Corp., 102 Neb., 349.

In the case at bar there is no charge of fraud or claim of bad faith, nor can there be any pretense that the delay in giving notice was prejudicial to the insurer. Neither can it be urged that there are not circumstances tending to justify the delay.

In these vital respects this case is to be distinguished from the case of Travelers' Ins. Co. v. Myers & Co., 62 Ohio St., 529, upon which authority the plaintiff in error chiefly relies.

Notwithstanding this difference in fact we are of opinion that the conclusion we have reached in the case at bar will necessitate the overruling of the fourth proposition advanced in the syllabus of the Myers case, supra. Our disagreement is not, of course, with the first paragraph of the proposition in question, for we are now holding that the question of compliance with terms of the notice may depend upon the circumstances of the case. We are, however, out of harmony with the view, that, in a case of the character under investigation, with its attendant circumstances, where the facts are not disputed, what is a sufficient compliance with the policy requirements as to notice is a question of law. On the contrary, we feel that the insured has a right to have a jury pass on the question and determine whether the circumstances of this particular case did not justify and excuse his conduct in failing to give the notice called for by the policy until he actually became aware that- his eyesight was seriously affected.

We find authority supporting our conclusion herein in the second proposition of the syllabus of the case of Hickman v. The Ohio State Life Ins. Co., 92 Ohio St., 87. That case, like the one at bar, was one involving the right to recover on an accident insurance policy. The policy provided that in the event the insured exposed himself to obvious risk of injury, or obvious danger, the company’s liability should be but one-fifth the face of the policy. The litigation was centered around the question whether the insured had so exposed himself. The court of appeals of Cuyahoga county held that since the facts in the matter were substantially undisputed it became the duty of the court to determine the issue as a matter of law, and denied the right of a jury to pass on the question of fact. This court reversed the court of appeals, holding, in the second proposition of the syllabus : “When, in such an action, an issue of fact is made by the pleadings, as to whether the injury to the insured resulted while he was exposing himself to a risk or danger which was obvious to him at the time, and there is no substantial conflict in the testimony of the witnesses on the trial, but the unconflicting testimony discloses a. variety of circumstances from which different minds might réasonably arrive at different conclusions as to that issue, it is the duty of the court to submit the determination of it to the jury.”

So, in the instant case, the question as to whether it was reasonably possible for Roehm to notify the company as to the injuries sustained, at a period of time earlier than that employed by him, and within the thirty days mentioned in the policy, is one about which different minds might reasonably arrive at different conclusions.

The judgment of the court of appeals is, therefore, affirmed, and the cause is remanded to the court of common pleas of Montgomery county, with instructions to overrule the demurrer of the insurance company, and for further proceedings according to law.

Judgment affirmed and cause remanded.

Jones, Matthias, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.


text:
    The American Casualty Co. v. Roehm.

      Insurance — Accident — Notice to insurer — Not given within time stipulated — Insured unaware of extent of injuries — Conduct of insured a question for jury.

    (No. 16133
    Decided April 2, 1919.)
    Error to the Court of Appeals of Montgomery county.

      Mr. W. S. Rhotehamel, for plaintiff in error.

      Messrs, fereene, Dzuyer & Finn, for defendant in error.
   Nichols, C. J.

The facts in the case at bar are substantially the same as fully stated m the case of The Employers’ Liability Assurance Corporation, Ltd., v. John Roehm, reported ante, 343. The only essential difference is to be found in the language of the policies as to notice.

In the one case the stipulated notice was to be given within thirty days, and in the other within ten days.

In Employers’ Liability Assurance Corporation case, supra, the notice clause contained a provision to the effect that notice must be given “unless such notice may be shown not to have been reasonably possible.” Such exception is not written in the notice clause in the case at bar.

The failure to specifically include the exception mentioned is of little or no importance, for manifestly such exception must be read into any provision of this character. The law does not require, in circumstances of this kind, that a party do the impossible thing; or, to put it in another way, in the case at bar the insured must be held to have the same right to justify and explain his failure to give the notice within ten days, as we have held that he had in the case where the excusing clause was actually written in the policy.

The judgment in this case must be affirmed, for the reason that John Roehm did not have, within ten days from the time of the accident, any knowledge whatever that he had suffered an injury of the character he afterwards discovered, nor any injury at all for that matter, upon which a claim for damages could be based. Situated as he was during the passage of the period stipulated for notice, unaware that any harm had befallen him, the giving of notice then must have appeared to John Roehm, as it would have appeared to any other reasonable and prudent man under like circumstances, as a foolish and futile thing. At any rate, he is entitled to the judgment of a jury as to the reasonableness of his conduct under the circumstances.

The judgment of the court of appeals is therefore affirmed, and the cause is remanded to the court of common pleas of Montgomery county with instructions to overrule the demurrer of the insurance company, and for further proceedings according to law.

Judgment affirmed and cause remanded.

Jones, Matthias, Johnson, Donahue, Wanamaker and Robinson, JJ., concur.