author: Donahue, J.

text:
    The City of Cleveland, by etc., v. The Public Library Board of the City School District of the City of Cleveland et al.

      Municipal corporations — Public libraries — Donation or transfer of property — To trustees of library — Section 3711, General Code — Authority of trustees to accept site — Section 3713, General Code — Consideration —• Consolidation agreement between Cleveland and Ohio City — Transfer of resultant property— Not violative of trust agreement, when.

    1. A municipal corporation has no authority to donate real or personal property to the trustees of a public library of a school district within which such municipality is situated. (Wasson et al. v. Commissioners, 49 Ohio St., 622; Hubbard, Treas., v. Fitzsimmons, 57 Ohio St., 436, and The State, ex rel. The Clemmer & Johnson Co., v. Turner, Attorney General, 93 Ohio St., 379, approved and followed.)
    2. Under the provisions of Section 3711, General Code, a municipal corporation may transfer real or personal property, acquired or suitable for municipal purposes, to the trustees of any public library for the school district within which such municipality is situated, for an adequate consideration other than money, upon such lawful terms and conditions as are agreed to between the municipal corporation and the trustees.
    3. Section 3712, General Code, authorizes the board of trustees of a public library for a school district within which a municipal corporation is situated, to accept a transfer of real or personal property from such municipal corporation for library purposes, upon such lawful terms and conditions as are agreed to between the municipal corporation and the trustees, and to enter into any contract relating thereto.
    4. A transfer by the city of Cleveland of property acquired by it from investment of the trust fund created by article 6 of the consolidation agreement entered into in 1854 between the city of Cleveland and Ohio City, to the public library board of the city school district of the city of Cleveland, to be used exclusively for library purposes, the title to revert to the city when the property is no longer used for such purpose, is not a violation of the trust created by this contract.
    (No. 15109
    —Decided May 29, 1916.)

      Error to the Court of Appeals of Cuyahoga county.
    On the 13th day of July, 1914, the city council of the city of Cleveland adopted a resolution offering to convey by quitclaim deed to the Public Library Board of the City School District of the City of Cleveland a tract of land occupied by the city hall, which resolution was in part as follows:
    “1. For the erection by the Cleveland Public Library Board of a public library building to harmonize in size and architecture to the public buildings already erected, such library building to form a part of the Cleveland so-called group plan of public buildings.

      “2. For the reversion of title to the City of Cleveland in the event that the land so to be conveyed and the building to be erected thereupon shall cease to be used for public library purposes.

      “3. For the restriction upon the use of the 34 9-12 feet of property lying immediately east of the present city hall, known as the Gas Company property, now owned by the City of Cleveland, to the effect that such 34 9-12 feet shall be kept free from structures so long as the present city hall site shall be used for public library purposes. In the event that the City of Cleveland shall desire to use such 34 9-12 feet of property for street purposes, it shall be expressly stipulated in such deed that the public library board shall pay, as an abutting owner, its proportion of the cost and expense of the construction of such street and permanent improvements therein.”

      It was further provided in this resolution that it should be stipulated in the deed that the cost and expense of razing the so-called Gas Company building and improving as a public park the land upon which the Gas Company building stood, should be borne by the Cleveland Public Library Board, and the mayor of said city was authorized, upon acceptance in writing by the Cleveland Public Library Board of the terms and conditions above stipulated, to execute a quitclaim deed conveying the old city hall site to the Cleveland Public Library Board.
    On the 3d day of October, 1914, the Public Library Board adopted a resolution accepting the offer of the city of Cleveland and pledging the library board to proceed at once to plan and erect upon the land to be conveyed a public library building, at a cost not to exceed $2,000,000.
    On the second day of December, 1914, the city of Cleveland by its director of law, John N. Stockwell, filed a petition in the common pleas court against Newton D. Baker, as mayor of the city, the Public Library Board of the City School District of the City of Cleveland and the individual members of that board, asking that the mayor be restrained and enjoined from making this conveyance and that the Public Library Board be restrained and enjoined from accepting the conveyance of land as proposed in the resolution.
    To this petition the defendants filed a general demurrer.
    On the 28th day of April, 1915, the city of Cleveland filed an amendment to its petition, averring that the land in question is held in trust for the people living in the territory that comprised the original city of Cleveland, prior to its consolidation in 1854 with Ohio City, as set forth in Article 6 of the consolidation agreement, by the terms of which all railroad stock owned by the city of Cleveland should be and remain the exclusive property of that portion of the territory of such united city as at the time of consolidation constituted the city of Cleveland, and by the terms of which the avails of this stock should be applied to the extinguishment of the liabilities theretofore incurred by the then city of Cleveland by subscriptions to railroad stocks, and the issue of bonds or other liabilities of said city of Cleveland in payment of said subscription, any surplus to be appropriated to the especial benefit of the territory then comprising the city of Cleveland, either by the purchase of public parks therein or in such manner as the majority of the trustees representing such territory should direct.
    On the 12th day of May, 1915, Floyd E. Waite filed a cross-petition averring in substance that he is a resident and taxpayer of the city school district of the city of Cleveland; that the money with which the city hall site and adjoining property was purchased was derived from the surplus remaining after the application of the railroad stock mentioned in Article 6 of the consolidation agreement of 1854 between the city of Cleveland and Ohio City; that the city of Cleveland has adopted a group plan of public buildings and that the acceptance of the conveyance from the city by the Public Library Board of the City School District of the City of Cleveland would require it to erect a public library building on said land to harmonize in size and architecture with the public buildings already erected in the group plan of public buildings; that performance of these conditions by the library board is impossible with the funds available for the purpose; and that said library board cannot lawfully expend any public money in the erection of buildings on land other than land owned by it in fee simple and cannot lawfully expend money in the razing of the adjoining building and the improvement as a public park of the land on which that building now stands.
    He further avers that such a building would soon be totally inadequate to serve the needs of the community as a public library; that a change of location would certainly become a matter of necessity in the near future; that in such event the entire investment made by the Public Library Board of the City School District of the City of Cleveland would be forfeited; and that a prospective loss of $2,000,000 invested in the building will be a penalty preventing the Board of Library Trustees from acting in accord with their judgment of what is best for the library.
    To this cross-petition the original defendants filed a general demurrer. The common pleas court sustained the demurrer to the petition, to the amendment thereto, and to the cross-petition. Error was prosecuted in the court of appeals of Cuyahoga county, which court affirmed the judgment of the court of common pleas.

      This proceeding in error is brought to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming that judgment.

      Mr. W. S. FitzGerald, director of law, and Mr. John N. Stockwell, for plaintiff in error.

      Mr. Ben B. Wickham, for the Public Library Board, and Mr. A. A. Cartwright, for Newton D. Baker, mayor, defendants in error.

      Messrs. Chapman, Howland, Niman & Waite, for Floyd E. Waite, cross-petitioner in error.
   Donahue, J.

It is insisted by counsel for plaintiff in error, and by counsel for the cross-petitioner in error, that this is a gift by the municipal corporation to the Public Library Board of the City School District of the City of Cleveland.

While it is a fact that the city of Cleveland and the City School District of the City of Cleveland are substantially the same in population and territory, yet they are nevertheless separate and distinct political subdivisions. Therefore the city of Cleveland cannot make a gift to the City School District of the City of Cleveland, notwithstanding such a gift is for the-benefit of substantially the same public. Wasson et al. v. Commissioners, 49 Ohio St., 622, and Hubbard, Treas., v. Fitzsimmons, 57 Ohio St., 436.

If Section 3711, General Code, is to be construed as authorizing a municipal corporation to give property, real or personal, suitable for library purposes, to the trustees of any public library for the school district within which such municipal corporation is situated, then that section is unconstitutional, for the reasons stated in Wasson et al. v. Commissioners and Hubbard, Treas., v. Fitzsimmons, supra; but in view of the further provision in that section that such transfer shall be “upon such lawful terms and conditions as are agreed to between the municipal corporation and trustees,” no such construction can be given it.

On the other hand, if the trustees of the public library are compelled by the terms of this statute to pay the full value of the property in cash, regardless of the conditions agreed to between the municipal corporation and the trustees, then this section would confer no additional authority whatever, for under other statutes of this state a municipal corporation is authorized to sell property for which it no longer has any municipal use and trustees of a public library are authorized to purchase or lease grounds or buildings for library purposes.

The presumption obtains, however, that this statute is constitutional and that it was enacted to serve some public purpose. That purpose undoubtedly is to authorize a municipal corporation to accept in payment for this property valuable considerations other than money, when terms and-conditions agreed upon are lawful and of substantial value to the municipal corporation making the transfer, and reasonably adequate compensation for the property so transferred. The facts in this particular case would seem to demonstrate not only the purpose and intent of the law-making power but also the necessity for such legislation.

It appears by the petition and cross-petition that the city of Cleveland has adopted a group plan of public buildings, all of which shall harmonize in size and architecture. The lot upon which the city hall now stands and the adjacent lot covered by what is known as the old gas company building are within the limits of the territory devoted to this group plan. It is therefore idle to talk of the commercial value of this land and the amount that could be realized from its sale, when it is apparent that, unless the group plan of public buildings is to be abandoned, it cannot be sold for any purpose other than a public building or park.

The erection of a public library building upon one of these lots and the improvement of the adjoining lot for park purposes will be not only of great value to the city in the furtherance of this group plan project, but will save the city a large sum of money in razing these buildings and improving the grounds and maintaining a public park thereon. It would therefore appear that this is not a gift by the city to the library board. On the contrary — in view of the necessity of limiting the use which is to be made of this property to one consistent with the group plan project and the further necessity of providing for the reversion of the title to the city when that use shall be abandoned, and also in view of the fact that the city cannot, without abandoning this group plan of public buildings in furtherance of which large sums of money have already been expended, sell this ground to a private purchaser for commercial purposes — it is evident that by this arrangement with the public library board the city is obtaining adequate value and that the transaction comes fairly within the provisions of Section 3711, General Code.

It is further averred in the petition and cross-petition that the Public Library Board of the City School District of the City of Cleveland is wholly without authority to accept this conveyance or to expend the public funds under its control in performing the terms and conditions proposed in the resolution of the city council.

Section 3712, General Code, authorizes the trustees of any public library for the school district within which the municipal corporation is situated to accept a transfer of property, real or personal, from a municipal corporation, upon such lawful terms and conditions as are agreed to between the municipal corporation and trustees. It follows, therefore, that unless the terms are unlawful or the conditions inconsistent with the. purpose for which the property is acquired, the trustees have authority under the provisions of Section 3712, General Code, to accept the same.

Section 7638, General Code, confers still broader authority upon the library board. It authorizes the board to purchase or lease grounds and buildings, and erect buildings for library purposes. This section is a direct answer to the contention that the library board has no authority to accept a deed for land upon which to erect a library building that contains conditions for the reversion of the title to the grantor when the property shall cease to be used for library purposes; for, if it may lease or purchase grounds for this purpose, it necessarily follows that it may acquire any estate in land upon which it proposes to erect a library building, from a leasehold to a fee simple title inclusive, and whatever title it acquires is acquired in the name of the library board as required by Section 7637, General Code.

Section 7638, General Code, also vests in the library board the discretion to determine the character of building necessary for its purposes, and this necessarily includes style and architecture. The courts cannot interfere with this discretion, unless it is averred and proven that the board is abusing its discretion or is guilty of fraud in the exercise of that discretion.

The library board should of course take into consideration not only the present but the future requirements of a public library to serve the needs of the public. The petition and cross-petition contain no averments whatever that would negative the presumption that the building to be erected upon this site at an expense of two million dollars will serve the future needs of the public equally as well as a building of that value erected now upon any other site in the city that might be leased or purchased by the library board for that purpose. While the prophecy of counsel in that respect may prove to be true, yet the presumption obtains that the library board has given due consideration to all of these questions.

The fact must not be overlooked that while the city is receiving adequate consideration for the transfer of this property, the library board is also effecting a large economy in securing this desirable site for a library building. Had the board in its discretion determined that it would not erect a building except upon land of which it held an unconditional title, it would perhaps have been compelled to pay a price that would have been practically prohibitive, while under the terms of this contract it will not be required to expend a single dollar in the performance of the conditions imposed that it would not have been required to expend in the erection of a building alone had it in fact purchased and paid in cash for an unconditional fee simple estate in the land upon which the building was to be erected; and, even had it done this, when the time arrived that the building erected would no longer serve the public needs for library purposes, necessarily the abandonment of such property would be attended with a loss probably commensurate with the loss that will be sustained should it become necessary to abandon this building on this site for library purposes, especially in view of'the fact that it is not now required to pay the commercial value of a fee simple estate in this land.

This library board, however, is authorized by the provisions of Sections 7637 and 7638, General Code, not only to erect a library building, but library buildings, branches, stations and reading rooms, and even if the prophecy of counsel were to weigh against the judgment and discretion of the library board there will probably never come a time in the history of the city school district of the city of Cleveland when this building cannot be utilized as one of the library buildings contemplated in Section 7638, General Code, or at least as a branch, station or reading room, either and all of which are contemplated in the term “library purposes.” This use of the building either as a library, branch, station or reading room would undoubtedly prevent the reversion of the title. These are matters however for the consideration of the library board.

The- statutes of this state clothe that board with full authority to lease or purchase a site and erect a library building thereon. This court has no authority to control its discretion in the determination of these questions and will not attempt to do so. State, ex rel. The Clemmer & Johnson Co., v. Turner, Attorney General, 93 Ohio St., 379.

The trust agreement pleaded in the amendment to the petition and in the cross-petition instead of operating to prevent the transfer of this property by the city to the library board would seem to emphasize the necessity of the city making just such an arrangement.

While it is true that the city parts with immediate .control of the property, yet it would do this if it executed a mere lease for a term of years, and certainly it is not only permitted but required to make some use of it consistent not only with the group plan of improvement but also with the terms and provisions of the original contract of consolidation between Ohio City and the city of Cleveland as it existed in 1854.

Part of this property is to be devoted to park purposes. That is clearly within the contemplation of Article 6 of this trust agreement. The erection of a substantial and handsome public library building upon the residue of this property is equally in furtherance of the trust purposes, for it brings within the very heart of the territory comprised in the city of Cleveland in 1854 not only a valuable public agency for the pleasure and education of its people but also a magnificent public building that will tend to the enhancement of the value of all property in that locality. Certainly this public library will be as advantageous to that territory as the city hall which was formerly located upon this ground. The city does riot in fact part with the control of this property. By the terms of its contract it directs and controls the use to which it shall be put, and when that use is abandoned the title reverts to the city.

If the city had conveyed an unconditional fee simple estate in these lands and imposed no limitation upon the uses to which it might be put, then there might be some force in the contention that it had transferred its trusteeship to an entirely different governmental agency having no interest in the trust and no authority to act as trustee. This trust at best is a vague and uncertain one, at least in so far as concerns the application of the trust property to the purposes of the trust. Undoubtedly the trustees are vested with some discretion to determine the manner in which this trust property shall be used in furtherance of the trust purposes, and we are unable to see that the arrangement contemplated will not serve the trust purposes as effectively as any other use to which the property might be devoted.

The judgment of the court of appeals must be affirmed.

Judgment affirmed.

Nichols, C. J.,' Johnson, Wanamaker and Newman, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The Stark Electric Railroad Co. v. Brooks, Guardian.

      Negligence — Operation of car causing sudden jerk — Contributory negligence — Passenger seated on platform or standing on step — Questions for jury, when — Answers by jury to special interrogatories— Constitute finding of absence of contributory negligence, when.

    (No. 15104
    —Decided May 29, 1916.)
    Certified by the Court of Appeals of Mahoning county.

      Messrs. Hart & Koehler, for plaintiff in error.

      Messrs. Metzger & Smith, for defendant in error.
   By the Court.

The court of appeals of Ma-honing county found its judgment in this case to be in conflict with the judgment of the court of appeals of Hamilton county in the case of The Cincinnati Traction Co. v. Mary Brogan, and certified the record thereof to this court.

This action was instituted in the court of common pléas of Mahoning county by Sarah J. Brooks as the guardian of Henry J. Brooks, an infant, and a recovery of damages sought against The Stark Electric Railroad Company on account of injuries sustained by Henry J. Brooks while a passenger on one of the defendant’s cars, it being claimed that the injuries were caused by the negligence of the railroad company. The charges of negligence contained in the petition are in substance as follows:

First, in permitting plaintiff’s ward to board said car arid accepting him as a passenger when said car was in the overcrowded condition that it was; second, in requiring plaintiff’s ward to ride on the steps of said car after accepting him as a passenger; third, in operating its car in a careless and negligent manner causing the same to jerk very hard and quickly, whereby plaintiff’s ward was thrown out from the car steps, and struck by a pole along said track; and, fourth, in maintaining said pole, at a point near its regular stop, in such close proximity to its tracks, when it knew, or in the exercise of proper care should have known, that passengers were apt to be thrown in contact with the same and thereby injured.

The answer of the defendant put in issue the charges of negligence made in the petition. As a further defense therein stated it is claimed that there were vacant seats in the car; that contrary to the rules of the company and the instructions and.request of the conductor plaintiff’s ward persisted in riding on the rear steps of said car, and that having voluntarily and unnecessarily chosen that location on the car he assumed the dangers and risks incident thereto.

It is further averred that plaintiff’s ward left his position on the step of said car and swung his body out beyond the steps while the car was in motion, thereby coming in contact with one of the trolley poles, which was at a safe and customary distance from the track, thus causing his injuries, and that in so doing he was negligent in a manner contributing directly and proximately to his alleged injuries.

Issue having been made by the reply, the case was tried and submitted to a jury and a verdict found for the plaintiff. Judgment was rendered thereon and affirmed by the court of appeals, which court certified the record to this court as heretofore stated.

It is contended by counsel for plaintiff in error that the trial court should have sustained their motion and directed the jury to return a verdict for the railroad company, defendant below, on the ground that the evidence fails to show negligence on the part of the company, and also for the reason that the record, does show such contributory negligence by the plaintiff’s ward as to preclude a recovery in this case.

Evidence adduced supporting the averments of the petition is in substance as follows: That when the railroad company accepted plaintiff’s ward as a passenger on its regular car and collected his fare, the car was so crowded that he was unable to get further than the upper step of the platform, where he seated himself; that as the car approached the station known as “Law’s Crossing” plaintiff’s ward, and also his companion seated on the step beside him, stood up to make room for some passengers to get off, after which he grasped the rear handhold with his left hand; and that the scheduled time of the car was thirty miles per hour and that it kept its speed until it got near the crossing when the motorman so applied and then released the air as to cause the car to stop suddenly and then violently lunge forward causing plaintiff’s ward to be thrown backward and around off the car, striking his head against a trolley pole near the track, which threw him to the ground, his head striking the rail of the track with such force as to cause serious injury.

The trial court submitted the case to the jury with the instruction that but one charge of negligence should.be considered, that being the manner of operation of the car, in causing a sudden, severe jerk and thereby throwing the plaintiff’s ward against the trolley pole and injuring him. Other charges of negligence were thus taken from the consideration of the jury.

The record discloses evidence tending to prove each material fact essential to support the charge of negligent operation of defendant’s car by its employes in the particular to which the inquiry was thus limited, and that issue was therefore one for the jury.

There was also evidence that plaintiff’s ward did not voluntarily remain upon the platform as did each of the passengers whose right to recover was at issue in the case of Cincinnati, Lawrenceburg & Aurora Elec. St. Rd. Co. v. Lohe, Admr., 68 Ohio St., 101, and other cases cited. In the case at bar there was evidence that the defendant’s car was crowded and the aisles full, and that it was not possible for plaintiff’s ward to get iAto the car further than the platform. „

The trial court was fully warranted in submitting the issue of contributory negligence to the jury. Counsel for defendant requested instructions before argument touching that issue, six of which were given and one refused. The instruction which the court refused to give the jury is as follows:

“If you find from the evidence, that plaintiff’s ward was seated in a place of safety on the step of defendant’s car and could have remained there until the car stopped, but instead took a standing position on the step of the car while it was in motion, then in such case he assumed the risk of such injury as might naturally or reasonably be expected to happen to him while the car was being operated on the track such as being jolted from the step, and if you find he was injured in this manner by reason of his standing upon the car step as aforesaid, the plaintiff cannot recover and your verdict must be for the defendant.”

Whether plaintiff’s ward was injured by reason of his standing upon the car step and also whether his action in arising when he did from the place where he had been sitting upon the car step constituted negligence, were likewise questions of fact for the jury, and were properly submitted by the trial court with the following instruction in its general charge:

“As I understand their claim — you will remember it — as I understand their claim it is that this boy while he was seated upon the step of the car was safe and that he arose from the place where he was sitting and stood up and therefore it was more dangerous and that in- doing that he did not exercise this ordinary care. Gentlemen, you will take into consideration the circumstances under which — if there is any proven — by which he arose from his seat and stood up. - Determine whether by doing that act, whether he exercised the care which an ordinarily prudent person would have exercised under the same or similar circumstances. If you shall find, gentlemen of the jury, that the defendant failed to exercise this high degree of care which I have called your attention to and find that the ward, Henry Brooks, did not exercise ordinary care, then that would defeat his right of recovery, no difference how negligent the defendant may have been.”

Upon the request of counsel for plaintiff in error, defendant below, two interrogatories were submitted to the jury, which with their answers are as follows:

“1. Could Henry Brooks have gotten into the car at the time he became a passenger if he had so desired? Answer. No:
“2. If Henry Brooks, plaintiff’s ward, had remained seated where he was on the step and not stood up as the car in question approached and until it reached Law’s Crossing, the place of the accident, would he have received the injury he claims to have received? Answer. Yes.”

The answer to the first interrogatory is a specific finding against the charge that plaintiff’s ward voluntarily and unnecessarily remained on the platform step. The second, while in a measure speculative, effectually disposes of the question presented by the only requested charge which the trial court refused to give, and also discloses the conclusion of the jury, from the evidence of witnesses before them, as to the extent and violence of the lurch of the car, which threw plaintiff’s ward from the step and caused his injury. Together they constitute a finding that there was no negligence on the part of plaintiff’s ward directly and proximately contributing to cause the injury sustained by him,

No error prejudicial to plaintiff in error is apparent in the record.

The judgment of the court of appeals, affirming the common pleas, is therefore affirmed.

Judgment affirmed.

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


author: Matthias, J.

text:
    Kelley, Judge, v. The State, ex rel. Gellner.

      Jurisdiction — Insolvency court of Hamilton county ■ — Divorce and alimony — Amended Section 1637, General Code (104 O. L., 180) —Authority to hear and determine pending cases — Section 26, General Code — Scope and purpose of writ of prohibition■ — Nonresidence of defendant in divorce proceeding.

      1. The amendment of Section 1637, General Code, passed February 6, 1914 (104 O. L., 179), withdrawing the jurisdiction of the court of insolvency of Hamilton county after December 31, 1914, in actions for divorce and alimony, being an act remedial in its nature must be read and construed as though Section 26, General Code, were a part thereof.
    2. The legislature having failed to incorporate in such amending and repealing act an express provision making it applicable to pending actions, those actions by virtue of the provisions of Section 26, General Code, are exempt from the operation of the amended statute. The insolvency court of Hamilton county, therefore, was authorized to hear and determine all actions in divorce and alimony which were pending in that court December 31, 1914.
    3. The proper function of the writ of prohibition is to restrain inferior courts and tribunals from exceeding their jurisdiction and to confine them to the exercise of those powers legally conferred. It is not an appropriate remedy for the correction of errors, and does not lie to prevent an erroneous decision in a case which the court is authorized to adjudicate.
    4. The issuance of the writ of prohibition is not warranted to restrain action by a trial court in a divorce proceeding upon the sole ground that the plaintiff had not been a resident of the state a year before filing the petition for divorce.
    (No. 15223
    —Decided June 23, 1916.)
    Error to the Court of Appeals of Hamilton county.
    This proceeding in prohibition was instituted by the relatrix in the court of appeals of Hamilton county to restrain Joseph B. Kelley, judge of the insolvency court of Hamilton county, from proceeding to hear and determine a suit for divorce brought in that court by John Gellner against Marie Gellner.
    It is disclosed by the pleadings that the petition in the divorce case was filed in the insolvency court on August 20, 1914, that summons was duly issued and served, that an amended petition was filed February 8, 1915, that issue was made by answer, and that the case came on for hearing September 15, 1915. After hearing the testimony of the parties and witnesses the court continued the case to January 15, 1916, apparently for the purpose of affording the parties an opportunity to become reconciled in accordance with the advice and admonition of the court. The relatrix states in her petition that she “has reasons and does believe and is in fear that the court will grant and enter a judgment of divorce against her on the day named by him, to-wit, January 16, 1916, unless prohibited from so doing by order of the court.”
    The grounds upon which relatrix based her action for a writ of prohibition, as stated in the petition, are as follows:
    “First. That the court has no jurisdiction or power to hear said action for the reason that said action for divorce was filed in the insolvency court after May 14, 1914.
    “Second. That the court is without jurisdiction of the subject of this action for reason that plaintiff in said action had not been a resident of the state of Ohio for one year next preceding the filing of his petition.

      “Third. Such action of the court deprives the defendant, Marie Gellner, of her legal and property rights and she will be without remedy at law, or otherwise,'to prevent or correct the wrong and injury done her by such action of said court if the same be permitted to be done.”
    The respondent by his answer asserted the unconstitutionality of Section 1637, General Code, as amended February 6, 1914, which section as amended provides that “the court of insolvency in Hamilton county shall not have jurisdiction in actions for divorce and alimony after December 31st, 1914.” Respondent urged that such provision is in conflict with Section 26 of Article II of the Constitution of Ohio “because and for the reason among other things that same was special legislation and did not have a uniform operation throughout the state and applied to Hamilton county, Ohio.”
    Respondent also averred that “on December 31, 1914, the said case of John Gellner and Marie Gellner the relator was on the docket of said Court of Insolvency undetermined as a pending case, and that when said cause was duly brought before the court for hearing and trial, your respondent in good faith and as a part of his duties under Section 26 of the General Code assumed jurisdiction of said cause among several hundred other divorce and alimony actions then pending in said court to hear, try and determine said cause.”
    The court of appeals found that by reason of the amendment of Section 1637, General Code, passed February 6, 1914 (104 O. L., 179, 180), the insolvency court of Hamilton county, after December 31, 1914, was without authority or jurisdiction to hear, decide or determine said divorce proceeding or any matter or matters in connection with or pertaining thereto, and issued a writ of prohibition restraining the respondent from hearing or proceeding to hear any matter or matters concerning or connected with said suit for divorce and from making any orders therein.
    Thereupon proceeding in error was instituted in this court.

      Mr. Charles W. Baker, for plaintiff in error.

      Mr. J. G. DeFosset, for defendant in error.

      Mr. John V. Campbell, prosecuting attorney, for Hamilton county.
   Matthias, J.

Section 1637, General Code, prior to its amendment February 6, 1914, conferred upon courts of insolvency jurisdiction concurrent with that vested in the court of common pleas in certain matters therein enumerated, which included actions in divorce and alimony. By the act of the legislature passed February 6, 1914, approved February 17, 1914, and filed in the office of the secretary of state February 19, 1914, Section 1637 was amended by adding to paragraph nine thereof the following: “except the court of insolvency in Hamilton county shall not have jurisdiction in actions for divorce and alimony after December 31st, 1914.”

The action for divorce here in question was. commenced in the court of insolvency of Hamilton county August 20, 1914, and was heard September 15, 1915, at which time the trial court admonished the parties to become reconciled and continued the case to January 15, 1916.

The application of the relatrix for a writ of prohibition challenges the jurisdiction of the insolvency court of Hamilton county to hear and determine any divorce or alimony case subsequent to December 31, 1914. Although counsel for the relatrix urges, as a further ground for asserting want of jurisdiction of the court of insolvency to hear the divorce case involved in this proceeding, the fact that the petition was filed subsequent to May 14, 1914, that date marking the expiration of the ninety-day referendum period, yet we think it must be conceded that whether the petition was filed before or after May 14, 1914, is entirely immaterial in the determination of the question of the court’s jurisdiction to act upon any such case subsequent to December 31, 1914.

The writ of prohibition is of ancient origin, though the procedure is new in this state, and the nature, purpose and office of such writ have been frequently defined by courts and text-writers. All are in substantial accord in defining it as an extraordinary judicial writ which may be issued out of a court of superior jurisdiction for the purpose of preventing an inferior court or tribunal from usurping a jurisdiction with which it is not legally vested, the object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their jurisdiction and to confine them strictly to the exercise of those powers with which they have been by law entrusted. It will be seen, therefore, that if the effect of the amendment to Section 1637, General Code, heretofore set forth, was to deprive the court of insolvency of Hamilton county of authority to hear and determine, subsequent to December 31, 1914, actions in divorce and alimony pending in said court on that date, the exercise of such power thereafter would be unauthorized and beyond the jurisdiction of such court, and therefore warrant the issua.nce of the writ of prohibition as prayed.

But counsel for respondent contends that Section 1637, General Code, as amended, is unconstitutional because it is a law of a general nature not of uniform operation, it applying only to Hamilton county. It was clearly determined, however, in State, ex rel. Atty. Genl., v. Bloch, 65 Ohio St., 370, which decision was followed and applied in the recent case of In re Hesse, 93 Ohio St., 230, that the provisions of Section 26 of Article II of the Constitution have no application to legislation enacted pursuant to the special grant of legislative power contained in Section 1 of Article IV of the Constitution, the evident purpose of such special grant of power being to enable the general assembly to meet the public needs for additional courts, as they might arise in various sections of the state. Having authority to create any such court in any section of the state, as in its opinion was necessary and proper, and define its jurisdiction, the power of the legislature to abolish such court or curtail its jurisdiction necessarily follows.

The amended law is constitutional and valid; but does it affect cases pending December 31, 1914? No provision having been made for the transfer of actions still pending and undisposed of on December 31, 1914, from the insolvency court to any other court, and Section 1637, as amended, containing no reference whatever to pending actions, it seems quite clear that the provisions of Section 26, General Code, apply and are determinative of the real question in this case. That section provides that “whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

Amended Section 1637 does not become operative until December 31, 1914. In view of this express provision neither the date of enactment nor the date of approval by the governor is material. It is certainly clear that the amended section is of no force or effect until the date therein specified. In the meantime the jurisdiction of the court of insolvency remains as theretofore conferred. Unquestionably it may hear and determine actions for divorce and alimony at any time prior to January 1, 1915, regardless of the time such actions were commenced. We think that is conceded. No provision is made for the disposition of such cases as then remain on the docket of that court, by transfer to another court or otherwise — no reference whatever to pending actions. The amended section must therefore be read as though Section 26, General Code, were appended to it as a saving clause. Bode, Admx., v. Welch, 29 Ohio St., 19, and Elder v. Shoffstall, 90 Ohio St., 265.

It has been urged that the intention of the legislature that the amended section should affect pending actions is disclosed by the fact that it provided what must have seemed to it a sufficient time for the disposition of pending cases before the withdrawal of jurisdiction in such matters, and also by the fact that on the same date Section 1639, General Code, was amended to provide for a division of domestic relations in the court of common pleas of Hamilton county, in which one of the judges should sit and to whom should be assigned all juvenile court work and all divorce and alimony cases. That section, however, contains no reference to the insolvency court nor any provision af•fecting its jurisdiction. Inferences cannot be substituted for the express provision required. The language of Section 26, General Code, is not that such repeal or amendment shall not affect pending actions, prosecutions or proceedings unless such inference may he gathered from the repealing statute, but it is that such repeal or amendment shall not affect pending actions, prosecutions or proceedings unless so expressed. When, therefore, the intention. of the legislature is to give to such repealing or amending act a retroactive effect such intention must not be left to inference or construction, but must be manifested by express provision in the repealing or amending act.

It is well urged by Minshall, J., in the case of State, ex rel. Construction Co., v. Rabbitts, 46 Ohio St., 178, that no generality of language can be accepted by the courts as a substitute for such express indication of legislative intent. A further suggestion, quite pertinent here, is that the provision of Section 26, General Code (which was formerly Section 79, Revised Statutes), has not merely the advantage of being a rule of certainty in construction but also of exciting the attention of the legislature and begetting an inquiry as to the propriety of applying a given amendment of a remedial nature to pending actions, prosecutions or proceedings.

Having failed to incorporate in the amending and repealing act an express provision that it should apply to pending actions, the force and effect of Section 26, General Code, are such as to give rise to a presumption that the intention of the legislature was that it should not affect' pending cases. The insolvency court, therefore, was authorized to hear and determine all actions for divorce and. alimony which were pending in that court on December 31, 1914. In our opinion the finding and judgment of the court of appeals to the contrary was erroneous, and the issuance of the writ of prohibition on the ground of a want of jurisdiction of the subject-matter was unwarranted.

The application of the relatrix for a writ of prohibition is based upon the further contention that the court had no jurisdiction of the action for the reason that it was disclosed by the evidence upon the hearing of the case that plaintiff in the divorce proceeding had not been a resident of the state a year at the time of filing his petition. The court of appeals correctly concluded that the writ could not issue upon that ground. It has been well settled that a writ of prohibition lies only when the inferior court proposes to exceed its lawful jurisdiction as to the person or the subject-matter, or in the enforcement of its rulings in a manner or by a means not entrusted to its judgment or discretion, and the party seeking the writ is without other adequate remedy. It is not an appropriate remedy for the correction of errors and does not lie to prevent an erroneous decision in a case which the court is authorized to adjudicate. The issuance of the writ would not be justified by an insufficiency of the statement of a cause of action or because of insufficient proof to sustain a cause of action. Questions of such nature do not go to the jurisdiction of the inferior court, but are rather questions of fact and law to be determined in the action there pending. On application for a writ of prohibition to stay the action of an inferior court the sole question to be determined is the jurisdiction of that court, and the court in which the relief is sought will not consider any mere error or irregularity occurring in the progress of the case in the inferior court. 2 Spelling on Injunctions- and Extraordinary Remedies (2 ed.), Section 1716; High on Extraordinary Legal Remedies (3 ed.), Section 767b; State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264, and State, ex rel. Garrison, v. Brough et al., ante, 115.

Whether or not the plaintiff in the divorce proceeding had been a resident of the state one year prior to the time of filing his petition for divorce was a question of fact about which there might be, and in this case apparently was, some dispute. In all cases where an inferior court has jurisdiction of the matter in controversy and keeps within the limits prescribed by law for its operation, the superior court should refuse to interfere by prohibition, for it should not consider whether the court below erred in the exercise, of its powers, since-it has nothing to do with the correctness of the rulings of the inferior court but only with its exercise of jurisdiction. High on Extraordinary Legal Remedies (3 ed.), Section 772.

It therefore seems clear that issuance of the writ of prohibition to restrain action by a trial court in a divorce proceeding would not be warranted upon the sole contention that plaintiff had not been a resident of the state a year before filing the petition for divorce. People, ex rel. James, v. Surrogate’s Court, 36 Hun (N. Y.), 218.

The conclusions reached by this court, and above announced, render unnecessary' a discussion of other questions presented. In our opinion the issuance of a writ of prohibition by the court of- appeals was unwarranted. The judgment of the court of appeals is therefore reversed and the petition of relator dismissed.

Judgment reversed.

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


author: Newman, J.

text:
    Snyder v. The State Liability Board of Awards et al.

      Workmen’s compensation — Appeal from industrial commission — Confined to final action denying jurisdiction, when — Section 1465-90, General Code (103 O. L., 88) — Jurisdiction of commission continuing, when — Section 1465-86, General Code (103 O. L., 88) — Award by commission precludes appeal, when.

    1. The term “final action” as used in Section 1465-90, General Code (103 O. L., 88), has relation to the question whether or not the industrial commission has jurisdiction to allow compensation to a claimant out of the state insurance fund, and under the provisions of .that section, as a condition precedent to the right of claimant to file his appeal in the court of common pleas, there must he a denial of his right to participate at all in such fund, based upon one of the jurisdictional matters enumerated in the section.
    2. Where an award has been made to a claimant upon his application to the industrial commission its jurisdiction under the provisions of Section 1465-86, General Code (103 O. L., 88), is continuing and it may make such modification or change with respect to the award as in its opinion may be justified, and the provisions of Section 1465-90, General Code, providing for an appeal to the court of common pleas, are not applicable.
    (No. 15135 —
    Decided June 23, 1916.)
    Certified by the Court of Appeals of Allen county.

      On the 18th day of January, 1913, the plaintiff in error, Newton Snyder, was injured in the course of his employment while in the employ of The Lima Locomotive Corporation, an employer who had paid into the state insurance fund the premiums required by the act of May 31,1911 (102 Ohio Laws, 524). Plaintiff in error filed an application with the State Liability Board of Awards, for compensation out of the state insurance fund for his injuries, and on the 14th day of May, 1913, the board after due notice to him of the time and place for the hearing of the application awarded him compensation for fifteen and one-seventh weeks’ disability, beginning at the date of his injury exclusive of the first week, at the rate of $12 per week, amounting to $181.71, and also the sum of $18 for medical seryice. On May 26, 1913, the board made a further award in the sum of $19 for hospital service rendered to plaintiff in error. The amount awarded to plaintiff in error was paid to and accepted by him and the amounts awarded for medical and hospital services were paid as authorized and directed by him in his application. On August 20, 1913, a letter was written to the board by the attorney of plaintiff in error asking for information in reference to the claim, and on August 26, 1913, this attorney was notified by the board that it had acted in the matter on August 11, 1913, that it had considered that no further compensation was due and that the case was closed.
    Thereafter, plaintiff in error filed his appeal in the court of common pleas of Allen county. Within 30 days 'after the filing of his appeal he filed his petition, the sufficiency of which was challenged by demurrer. The demurrer was overruled. An answer and a reply thereto were then filed. The case was tried to a jury. At the close of the opening statement to the jury by the attorney for plaintiff in error, the attorneys for the Industrial Commission of Ohio, which had superseded the State Liability Board of Awards, made a motion in which they asked the court to direct the jury to return a verdict in favor of the defendant upon the ground that the court was without jurisdiction to hear the case. This motion was overruled as were similar motions made at the close of plaintiff’s evidence and at the close of all the evidence in the case. The jury returned a verdict in favor of plaintiff in error, finding and fixing the weekly indemnity and compensation at $10. A motion for a new trial was overruled, judgment was rendered on the verdict, and error prosecuted to the court of appeals by the industrial commission. -That court reversed the judgment of the court of common pleas, upon the ground that the court of common pleas did not have jurisdiction of the subject of the action, and further, finding their judgment in conflict with the judgment pronounced upon the same question by another court of appeals of this state, the judges certified the record of the case to this court for review and final determination.

      Mr. T. R. Hamilton, for plaintiff in error.

      Mr. Edward C. Turner, attorney general; Mr. John G. Price and Mr. Eugene Carlin, for defendants in error.
   Newman, J.

Plaintiff in error claims the right of appeal to the court of common pleas under the provisions of Section 36 of the act of May 31, 1911 (102 Ohio Laws, 531), now Section 1465-90, General Code. This section is as follows:

“The board shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in case the final action of such board denies the right of the claimant to participate at all in such fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right, then the claimant, within thirty (30) days after the notice of the final action of such board, may, by filing his appeal in the common pleas court of the county wherein the injury was inflicted, be entitled to a trial in the ordinary way, and be entitled to a jury if he demands it. In such a proceeding, the prosecuting attorney of the county, without additional compensation, shall represent the state liability board of awards, and he shall be notified by the clerk forthwith of the filing of such appeal.
“Within thirty days after filing his appeal, thé appellant shall file a petition in the ordinary form against such board as defendant, and further pleadings shall be had in said cause, according to the rules of civil procedure, and the court, or the jury, under the instructions of the court, if a jury is demanded, shall determine the right of the claimant; and if they determine the right in his favor, shall fix his compensation-within the limits under the rules prescribed in this act; and any final judgment so obtained shall be paid by the state liability board of awards out of the state insurance fund in the same manner as such awards are paid by such board.
“The cost of such proceeding, including a-reasonable attorney’s fee to the claimant’s attorney to be fixed by the trial judge, shall be taxed against the unsuccessful party.
“Either party shall have the right to prosecute erior as in the ordinary civil cases.”

It is averred in the petition filed in the court of common pleas that the state liability board of awards on or about the 26th day of August, 1913, absolutely rejected the claim of plaintiff without any right or authority so to do and refused to make payment in compliance with the provisions of the law. The language used in the statute above quoted is not adopted by the pleader, nor are any of the grounds enumerated in the proviso set out in the petition. But for the purposes of this case the language used in the petition may be construed to mean that plaintiff has been denied the right to participate at all in the state insurance fund and it may be assumed that facts sufficient to show jurisdiction in the court of common pleas are stated. But the question then arises whether the allegation to which we have referred was sustained by any evidence. It appears that the state liability board of awards did make an award to plaintiff in error in the sum of $181.71, which was paid to and accepted by him, and that there was also made an additional award for medical and hospital services. It is to be observed that the statute which confers the right of appeal does so upon condition that final action of the board denies the right of the claimant to participate at all in the fund, upon one of the grounds therein enumerated. This right of appeal proceeds upon the theory that there has been a finding by the board that it is without jurisdiction to act in the matter. If the board should find that the injury complained of was self-inflicted or that the injury did not arise in the course of employment, or that there was some other ground which went to the basis of claimant’s right, then the board, being without jurisdiction, must necessarily deny the right of claimant to participate. The claimant then under the proviso in the statute in question has his day in court, and it is expressly provided that after the appeal is perfected and the pleadings are filed the court or a jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate in the fund. That is the first question to be determined by the court or jury. If it is determined adversely to the claimant, that is the end of the matter. If there is a finding in his favor then the court or jury goes further and fixes the compensation within the limits and under the rules prescribed by law, and the judgment so obtained shall be paid out of the insurance fund. The court or jury, as we view it, would have rio authority under the provisions of this statute to deal with the amount of compensation unless the question of the right of the complainant to participate in the fund was in issue. In the case under consideration this right was not denied claimant by the state liability board of awards. The matter was unquestionably within its jurisdiction. The employer had contributed to the state insurance fund, the employe was injured in the course of his employment, there could be no denial of his right, and he was therefore permitted to participate in the fund.

But it is urged that when the board on August 11, 1913, held that no further compensation was due and the case was closed, that was the “final action” of the board within the meaning of the statute and was a denial of the right to participate. Counsel do not specify the ground upon which this so-called final action was based. It could not have been upon the first ground, viz., that the injury was self-inflicted; nor upon the second, that the accident did not arise in the course of employment; nor upon any ground which went to the basis of the claimant’s right — for instance, upon the ground that the complainant was not an employe of the employer at the time of the injury, or that he had brought an action for damages directly against the employer, and so on. It is true that so far as the record discloses the action taken by the board on August 11, 1913, was its latest action. But we do not think this can be said to be the “final action” of the board within the meaning of the statute. Counsel seem to have given no effect to the provisions of Section 33 of the act of May 13, 1911, now Section 1465-86, 'General Code, which reads:

“The power and jurisdiction of the board over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion, may be justified.”

The board in the instant case had jurisdiction of this matter and under the provision just quoted its jurisdiction was continuing, and we are of the opinion that the term “final action” as used in Section 1465-90, supra, has relation to the question whether or not the claimant has the right to participate at all in the insurance fund. When the board made a finding favorable to the applicant and allowed the sum of $181.71, that was its “final action.” True it subsequently found that no further compensation was due, but that did not prevent plaintiff in error from presenting an application for a rehearing of the matter, which so far as the record discloses has not been done.

This case was certified to this court upon the ground that the judgment was in conflict with that pronounced in the case of Sam Police v. The State Industrial Commission of Ohio, 23 C. C., N. S., 433. The facts in that case were wholly different. In the Police case application was made for compensation for an injury received in the course of employment, viz., double hernia. The state liability board of awards found affirmatively that the hernia from which claimant was suffering and for which he made claim for compensation did not result from an injury received in the course of his employment, the effect of which finding was that the board was without jurisdiction to make an allowance as asked for and therefore there was a denial of the right to participate in the fund upon the second ground enumerated in the proviso in Section 1465-90. In the Police case a nominal award was made by the board for something that was not asked for by the applicant. The court of appeals found as a fact that the board denied the right of the claimant to participate at all in the fund on the ground that the accident did not arise in the course of employment, and held that an award of something of which applicant was at no time or in any manner a claimant could not defeat his right to appeal, dependent only upon the denial of the claim made.

As we view the present case, plaintiff in error, in invoking the jurisdiction of the court of common pleas, sought to have that court review the amount allowed to him by the state liability board of awards. His right to participate in the fund, as we have seen, had not been denied, and a denial of this right upon one or more of the grounds set out in the statute being a condition precedent to his right to appeal to the court of common pleas, that court was therefore without jurisdiction to act in the matter, and the court of appeals was correct in so finding.

Judgment affirmed.

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


author: .Donahue, J.

text:
    Dick, Exrx., v. Hyer.

      Negotiable instruments — Joinder of causes of action — Pleading note and original consideration — Evidence —Privileged communications — Husband and wife■ — Alteration of note by maker — Holder in due cottrse may enforce payment, when.

    1. A cause of action upon a promissory note and a cause of action to recover on the original consideration of the same nóte, when it does not appear that the note was given in payment of the debt, are separate, distinct and consistent causes of action growing out of the same transaction. Neither is. a fictitious' cause of action, although the plaintiff can have but one recovery. (Gartner v. Corwine, 57 Ohio St., 246, and P., C. & St. L. Ry. Co. v. Hedges, 41 Ohio St., 233, approved and followed.)
    2. A husband or wife cannot testify as to the contents of a written paper, handed by one to the other and examined and signed in the presence of each other during coverture, unless it is done in the known presence or hearing of a third person competent to be a witness.
    3. Where a note has been materially altered by one of the makers, before its delivery to a holder in due course, not a party to the alteration and having no knowledge that it has been so altered after signature of the makers, the holder in due course may enforce payment thereof according to its original tenor.
    (No. 15040 —
    Decided June 23, 1916.)
    Error to the Court of Appeals of Pickaway county.
    On the 24th day of May, 1911, Milton T. Dick, then in full life but now deceased, filed a petition in the common pleas court of Pickaway county against Thomas Dick and Maud B. Dick to recover-the amount due on a promissory note signed by defendants and dated the 4th day of January, A. D. 1908.

      To this note was attached a warrant of attorney to confess judgment, and judgment was rendered by confession against both of the defendants for the amount due on the note including interest.
    At the same term of the common pleas court this judgment was vacated upon the motion of the defendant Maud B. Dick, who since the commencement of the action had been divorced from her co-defendant, Thomas Dick, and remarried. Her present name is Maud B. Hyer.
    Thereupon the defendant Maud B. Dick filed an answer denying that she made, executed or delivered the note set out in the petition.
    The issue joined by these pleadings came on for trial at the April term of the common pleas court of that county, but by reason of the sickness of one of the jurors the jury was discharged and the case continued.
    It appearing upon this partial trial of this case that it was the claim of the defendant Maud B. Dick that the note she had signed had been altered in its date from January 5, 1908, to January 4,1908, and in its date of maturity from January 5, 1909, to January 4, 1909, without her knowledge and consent, and that for this reason she was not liable upon the note attached to plaintiff’s petition, the plaintiff on the 12th day of April, 1913, filed an amendment to his petition, in which for a second cause of action he pleaded the original indebtedness for which this note was given. The defendant Maud B. Dick filed a motion to strike out certain portions of this amendment, which motion was sustained by the court, and the plaintiff on the 6th day of September, 1913, filed a second amendment to his petition, which amendment for a second cause of action also pleaded the original indebtedness of the defendants to plaintiff, to evidence which the note sued upon was given.
    To this second amended petition, the defendant Maud B. Dick, then Maud B. .Hyer, filed her separate answer, in which she denied that she was indebted to the plaintiff at the time of the execution of the alleged note.
    Upon the trial of the issue so joined by the pleadings Maud B. Hyer moved the court to require the plaintiff to elect on which cause of action he would proceed to trial. This motion was sustained by the court. The plaintiff then elected to proceed to trial upon his first cause of action.
    At this trial the jury disagreed and the cause was again tried at the October term of the court and a verdict returned in favor of the defendant Maud B. Hyer and against the defendant Thomas Dick for the amount due upon the note.
    Motion for a new trial was overruled, and judgment entered upon the verdict.
    The court of appeals affirmed this judgment. Pending the proceedings in error in the court of appeals Milton T. Dick died, and Elizabeth M. Dick, executrix of the last will and testament of Milton T. Dick, was substituted as plaintiff in error, and this proceeding in error is brought in this court by this executrix to reverse the judgment of the common pleas court and that of the court of appeals affirming the same.

      Mr. I. N. Abernethy and Mr. Milt Morris, for plaintiff in error.

      Mr. Charles Dresbach and Mr. Humphrey Jones, for defendant in error.
   .Donahue, J.

The first question presented by this record is whether the plaintiff may unite in his petition a cause of action upon a promissory note and a cause of action upon the antecedent debt which was the consideration for the note pleaded in the.first cause of action.

It is undoubtedly the law of this state that where the plaintiff has but one cause of action the facts cannot be subdivided so as to present fictitiously two or more causes of action. Sturges et al. v. Burton et al., 8 Ohio St., 215, and Ferguson v. Gilbert & Rush et al., 16 Ohio St., 88.

Notwithstanding but one recovery is sought in this case, yet these are separate and distinct causes of action. Neither of them is a fictitious cause of action in any sense of the words. If they are not inconsistent, the plaintiff is entitled to plead these causes of action in the alternative.

This question is practically settled by this court in the case of Gartner v. Corwine, 57 Ohio St., 246, wherein it was held that a plaintiff might aver in his petition a breach of contract of warranty and' also a false warranty, and recover upon either, but not upon both. In that case the court said in its opinion by Williams, J., at page 255:

“It is competent, we think, for a plaintiff to state in his pleading all the facts of the transaction which enter into his right to recover, as he believes them to be, though they present different grounds of recovery.”

And again on the same page: “If there are two [causes of action], one for breach of the warranty, and the other for fraud, they grew out of the same transaction, and may be properly joined in the same petition.” ,

The first proposition of the syllabus in that case sustains these statements in the opinion.

To the same.effect is the case of The P., C. & St. L. Ry. Co. v. Hedges, 41 Ohio St., 233, sustaining a. petition that counted upon two distinct wrongful acts as causes of the killing of plaintiff’s horses: (1) Neglect to keep in repair a fence as required by a contract, and (2) negligence in running the train. A motion to require the plaintiff to elect was overruled by the trial court, and this court affirmed that judgment.

The principle is well stated in the case of The Citizens’ Bank v. Closson, 29 Ohio St., 78, in which it is held that “The code contains no limitation upon the provision that the defendant may set forth as many grounds of defense as he may have, except the implied limitation contained in the requirement that pleadings shall be verified by oath.”

The same doctrine is announced in the case of Witte v. Lockwood, 39 Ohio St., 141.

The provision of the code permitting the plaintiff to unite several causes of action in the same petition is just as comprehensive as the provision authorizing the defendant to set forth in his answer as many grounds of defense as he may have, except that the several causes of action united in a petition must be included in one of the classes of cases designated in Section 11306, General Code, and when these causes of action come within any of these classes the plaintiff may unite them in one petition regardless of the fact that he can have but one recovery. The P., C. & St. L. Ry. Co. v. Hedges, supra.

This doctrine applies only to separate and distinct causes of action. If there is in fact but one cause of action then of course under the provision of the code it must be stated in clear and concise language as one cause of action, and not as two; but this rule as to separate causes of action for separate recoveries must not be confused with the right to a single recovery upon alternative' causes of action.

In the case of Sturges et al. v. Burton et al., supra, the plaintiffs sought to recover from the defendants, personally, being directors of a bank, a penalty under the third section of the charter of the bank, for the unlawful issue of certain bills of the bank held by the plaintiffs. The plaintiffs’ sole right to recover rested upon the construction of this section of the bank’s charter. The facts were fully stated in the first cause of action, and what purported to be a second cause of action averred the same facts, with the further averment that' “Said sum of five thousand dollars constituted a part of the excess of said indebtedness, over and above the amount of stock.” This, the court held, was framed to meet a different construction of the charter than contemplated in the first cause of action, but either construction would not change the facts constituting the cause of action and the court very properly required the plaintiffs to elect.

In the case of Ferguson v. Gilbert & Rush et al., supra, the first count specially narrated in detail the facts upon which the plaintiff’s ownership of the debt represented by the order in writing was predicated, and alleged that the drawee of the order refused payment on account of some claim made by the administrator of the estate of her father, and the second count alleged generally, without showing how the plaintiff became the owner of the order; but each cause of action was predicated solely upon the acceptance of the order by the drawee.

The court held in the above case that there was nothing inconsistent between the general averments of the second count and the particular or special statements of the first; that the second cause of action added nothing whatever to the allegations of the first, and was therefore useless; that it would have been the duty of the court, on motion of defendant, to have ordered the second count stricken out, or to have required the plaintiff to elect upon which count she would proceed and strike out the other, but that no such motion having been made the purported second cause of action might be treated as mere surplusage.

In 2 Bates’ Pleading, page 1073, the rule is stated in the following language: “An amendment to recover on the original consideration of the note sued on, is not deemed a change of cause of action, and hence is permissible.” And again on the same page: “Where a note has proved void by reason of an alteration which is not dishonest, such amendment is allowable.”

In the case under consideration the necessity and the reason for the 'rule permitting plaintiff to join separate causes of action in one petition are very apparent.

The defendant Maud B. Hyer claims that the note described in the first cause of action was altered after she had signed it by changing the date from January -5, 1908, to January 4, 1908. The plaintiff testified that the note was not altered after it came into his possession. It would be manifestly unjust to compel this plaintiff to elect at his peril upon which cause of action he would proceed to trial, for if this note was in fact altered before delivery to him he would have no means of knowing whether it had been altered after or before it was signed by the defendant Maud B. Hyer. Even had it been altered by him after he received it, without any fraudulent purpose, and under an honest mistake of right, he would nevertheless be entitled to recover upon the original indebtedness. Merrick v. Boury & Sons, 4 Ohio St., 60.

It is further contended by the plaintiff in error that the trial court erred in permitting Maud B. Hyer to testify as to acts done by her and her husband in the presence of each other without the presence of any third person competent to be a witness.

Clearly the testimony of the wife in reference to her husband requesting her to sign this paper, and that she did sign it at his request and in his presence, was not admissible.

The fact that she admitted that her signature is genuine could not make her testimony competent. On the contrary, even though she were a competent'witness, this admission eliminated that issue and dispensed with the necessity of introducing any evidence in reference to it.

It had a prejudicial effect in that it brought into the evidence the entire transaction from, which her knowledge as to the date of the note was derived. If it were conceded that she might testify as to the knowledge she obtained when she examined this note in the presence of her husband only, still she certainly could not testify as to what was then done or said by either of them, and thereby enhance the value of her testimony in that regard by relating in detail what occurred between her husband and herself at the time the note was signed. It appears however that this was but one transaction between husband and wife, when no third person competent to be a witness was present, and that the whole transaction comes fairly within the provisions of paragraph 3 of Section 11494, General Code. The husband presented the note to the wife and requested her to sign it; she took the paper, examined its contents, signed it and handed it back to him. Her examination of this note was as much an act done in the presence of her husband as the signing of her name to' it, and she cannot separate this transaction into parts so as to permit her to testify as to one part as the basis of her knowledge regarding the date of the note. She might just as well be permitted to testify as to the demeanor of her husband, or the expression of his countenance when he requested her to sign this note, as to testify to the examination of the note then made by her and the knowledge she obtained from that examination.

The evident purpose of this provision of the statute is to keep sacred and secret the confidential relations of husband and wife. If a husband or wife is permitted to testify as to the examination of a paper writing, made by either of them in the presence of the other, in the absence of a third party competent to be a witness, the purpose of the statute fails and the confidential relation of husband and wife is imperiled or destroyed. If a wife may testify as to the contents of this paper shown to her by her husband under such circumstances, she might also testify as to the contents of a letter or any other private paper shown to her in the confidence of the marriage relation. The mere fact that this paper happened to be a note which he requested her to sign and she did sign in his. presence, cannot take it out of the operation of the statute any more than if it were a private paper shown by one to the other in confidence with no intention or expectation that the contents of that paper should be made public.

The law wisely prevents all inquiry as to the nature or the character of the disclosure made by one to the other, either by spoken or written word, and will not undertake to discover the nature of the writing in order to determine whether it was or was not of a confidential nature. In other words, when no person competent to be a witness is present the presumption is conclusive that the statement or communication made in any form or in any manner is a confidential communication. On the other hand, if any third person is present, competent to be a witness, then the presumption is equally conclusive that the communication is not of a confidential nature. The line drawn by the statute is clear, positive and certain. If it comes within the class of communications between husband and wife that are regarded as confidential the law throws a veil of secrecy over it forever. If it is of that class of communications not recognized as confidential, that is to say when a third person competent to be a witness is present, then the courts will inquire into the transaction just the same as if no confidential relation existed between husband and wife.

It is the purpose of the law to encourage rather than to discourage confidences between husband and wife, so that each may freely make disclosures to the other and they may advise and consult with one another as to any matter or thing, secret or otherwise, that may affect the well-being or the happiness of either or both, and that result cannot be accomplished if either husband or wife is compelled or permitted to testify as to the contents of a paper shown by one to the other, regardless of the nature of the writing.

It is further insisted upon the part of the plaintiff in error that under the provisions of Section 8229, General Code, where a note has been altered by one of the makers, after signature of the other makers and without their knowledge, and has been delivered to a holder in due course, who is not a party to the alteration, the holder may enforce payment thereof according to its original tenor.

Counsel for defendant in error do not question this construction of the statute, but insist that under the evidence it has no application to this case. Attention is called to the evidence of Thomas Dick, who testified upon the third trial of the case that he had altered the date of the note before his wife signed it, but who testified in the first and second trials that the note had not been changed by anybody before the defendant Maud B. Hyer signed it, and it is urged that therefore the jury could very well disbelieve the statement of Thomas Dick on the third trial.

This argument however overlooks the fact that the plaintiff, Milton T. Dick, testified (Record 66) that he had no knowledge of any change or alteration in the note and that it had not been altered after he received it through the mail.

While the jury may or may not have believed the evidence of either of these witnesses in this respect the plaintiff was nevertheless entitled to have the jury instructed that if it found Milton T. Dick to be the holder in due course and not a party to the alteration he might recover upon the note according to its original tenor.

The • plaintiff presented no request to the court to so charge the jury. The fifth instruction requested was evidently intended to cover that phase of the case, but unfortunately it does not clearly appear in the closing language of that request that the plaintiff would be entitled to recover on the note according to its original .tenor, or upon the note as altered, with interest thereon from the date it now bears. In the general charge, however, the court instructed the jury that if the note was altered without the consent of Maud B. Dick, after she had signed it, the plaintiff could not recover in the action.

If the jury had found that Milton T. Dick was the holder of this note in due course and not a party to the alteration, nevertheless under this instruction it could not have returned a verdict in favor of Milton T. Dick according to the original tenor of the note.

This charge entirely overlooked the provisions of Section 8229, General Code, and deprived Milton T. Dick of the benefits of that section, regardless of what the jury might have found the facts to be.

The exclusion of the evidence offered by plaintiff, tending to prove the consideration of the note, was the natural consequence of requiring the plaintiff to elect. Under the issues then joined by the pleadings this evidence was incompetent. But if the plaintiff had been permitted to go to trial on both his first and second causes of action this evidence would have been competent to sustain the allegations of the second cause of action.

For the reasons hereinbefore stated the judgment of the common pleas court and the judgment of the court of appeals affirming the same are reversed, and this cause is remanded to the common pleas court for a new trial and further proceedings according to law. .

Judgment reversed.

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


author: Wanamaker, J.

text:
    The State of Ohio v. Maranda.

      Criminal law — Corpus delicti defined — Sufficiency and weight of evidence — Confession or extraneous evidence.

    1. By the corpus delicti of a crime is meant the body or substance of the crime, included in which are usually two elements:
    1. The act. 2. The criminal agency of the act.
    2. It has long been established as a general rule in Ohio that there must be some evidence outside of a confession, tending to establish the corpus delicti, before such confession is admissible. The quantum or weight of such outside or extraneous evidence is not of itself to be equal to proof beyond a reasonable doubt, rior even enough to make it a prima facie case. It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged.
    (No. 15137
    —Decided May 23, 1916.)
    Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Summit county.
    Facts are stated in opinion.

      Mr. Charles P. Kennedy, prosecuting attorney; Mr. Dow Harter and Mr. Coburn Musser, assistant prosecuting attorneys, and Mr. Emerson L. Taylor, for the exceptions.

      Mr. T. W. Kimber and Mr. C. H. Stahl, against the exceptions.
   Wanamaker, J.

The defendant, Elizabeth Mar anda, was indicted by the grand jury of Summit county, Ohio, on the charge of arson, in two counts, one the burning of a dwelling house and the other the burning of certain personal property then and there within said dwelling house. Defendant entered a plea of not guilty to the indictment, the jury was impaneled and sworn, and trial commenced.

During the trial the state had offered evidence tending to show that three fires had occurred at the house during the afternoon and night of September 3, 1915; the first at about 3:30 o’clock in the afternoon, the second at about 9:53 o’clock that same night, and the third about midnight. The 9:53 fire was the particular one upon which the defendant was then being tried.

The state offered evidence tending to show that the defendant, Mrs. Maranda, occupied the house in question as a boarding house; that on the afternoon in question the defendant requested her boarders to leave the house, saying that she was going to dress and go down town; that said boarders left the house, walked to the postoffice some blocks away, and then returned to the house to find it closed and full of smoke; that upon entering, one of the boarders found the gas jets in one of the downstairs rooms turned on and gas escaping; that at this time Mrs. Maranda appeared from some place on the outside of the building; that upon going upstairs the boarders found some rags burning on the floor of the closet off of one of the bedrooms ; that this fire wasextinguished without calling the fire department; that about seven o’clock in the evening defendant was seen a short distance from the house, 491 South Main street, and at that time stated to a neighbor that she was going to her Wheeler street home, telling her neighbor that in the afternoon of that day she had received a letter from some person, with whom she had previously had some trouble, threatening her with personal harm, and that by reason of that letter she was going to be compelled to give up the house that was burned in the afternoon and that she had dosed the house for the night; that on the day preceding the fires the neighbors had seen numerous articles of household goods removed from the house; that about 9:20 p. m., this September 3d, Mrs. Maranda, her two daughters and two young men were joined by one George Sewell, one of the boarders, and walked away from the house in question east toward Wheeler street; that about a block away from the burning dwelling, the defendant, Mrs. Maranda, said to the others of the party that she had forgotten to lock the door of the house and started back toward the house ostensibly for that purpose; that she was seen going to the house by some of her neighbors and that the house at that time was dark; that this was about a half an hour before the first alarm was turned in, which was 9:53 p. m. ; that the neighbors also saw Mrs. Maranda leave the house several minutes after entering the same; that the firemen upon arriving at the Maranda house shortly after 9:53, the time of the alarm, found there were two fires in different parts of the house, one burning in a closet downstairs on the north side of the house and the other in a closet upstairs off of a room on the south side of the house, the upstairs closet being the same one in which the fire had been located in the afternoon; that the chandelier in one of the front rooms was broken off at the ceiling, allowing the gas to escape; and that'the defendant carried insurance in the amount of $1500 on the contents of the house.

The state also offered evidence tending to show the location of these several fires in the house, the surroundings, the presence of Mrs. Maranda, her peculiar conduct, to say the least, and thereafter offered in evidence statements and declarations made by the defendant to Charles Miller and Thomas B. Williams of the state fire marshal’s office, which statements were in the nature of confessions, made on September 6, 1915. This evidence was admitted by the court. Later the state tendered a written statement signed by the defendant, Maranda, and purporting to be a voluntary confession of all the facts and circumstances connected with the several firings of the boarding house in question on September 3, 1915. This written statement gave in detail the circumstances leading up to each fire, contained an acknowledgment of writing the letter, which Mrs. Maranda • discussed with a neighbor, formerly referred to in the state’s evidence, and assigned as the reason for writing the letter an attempt upon her part to divert suspicion from herself.

Upon the offering of the written confession, the defendant by her counsel objected to the admission thereof, upon the ground that the corpus delicti had not been sufficiently proved. Upon considering this objection, the court ordered an exclusion from the consideration of the jury of the oral testimony of the witnesses, Miller and Williams, and then sustained the defendant’s objection to the introduction of the written confession.

Further, the court arrested all the testimony from the jury and directed a verdict for the defendant, saying, in that connection, as the reason for such directed verdict: “The court cannot allow the jury to speculate whether the state has proved the corpus delicti, and I will sustain the motion.”

The only question, therefore, for the consideration of this court is as to whether or not under the evidence of the case the corpus delicti had been sufficiently proven to warrant the introduction of any claimed confession against the defendant, whether that confession was oral or written.

There are three leading cases in Ohio dealing with the question of corpus delicti in connection with what is known as extrajudicial confessions.

The first leading case is Blackburn v. State of Ohio, 23 Ohio St., 146, decided in 1872. The third paragraph of the syllabus reads as follows:

“Although extrajudicial confessions alone are not sufficient to prove the body of the crime in cases of homicide, they may be taken and used for that purpose in connection with other evidence.^

The second case is the State of Ohio v. Leuth, 5 C. C., 94, decided in 1890, in which case a motion for leave to file a petition in error was denied by the supreme court of Ohio. The third paragraph of the syllabus reads as follows:

“This confession before the coroner was not a judicial confession, and it was necessary that there should be other proof of the corpus delicti; but it is not necessary that the agency of the accused should be proved by other evidence which alone would prove the guilt of the accused beyond a reasonable doubt.”

The third case is State of Ohio v. Knapp, 70 Ohio St., 380, decided in 1904. The third paragraph of the syllabus reads as follows:

“If the facts extrinsically proved by the state corroborate the confession, then full, direct and positive evidence of the corpus delicti is not indispensable to admit the confession in evidence; and if such extrinsic corroborative facts, when considered with the confession, persuade the jury beyond a reasonable doubt of the prisoner’s guilt as charged, such evidence will support a verdict of guilty. Blackburn v. State, 23 Ohio St., 146, approved and followed.”

From the foregoing Ohio cases it seems to be conclusively settled:

1. That an extrajudicial confession is not sufficient in and of itself to sustain a conviction of a crime.

2. That some corroborating circumstances tending to prove criminal agency should be offered by the" state before such extrajudicial confession is competent.

This doctrine touching corpus delicti is of ancient origin and was born out of great caution by the courts, in consideration of certain cases of homicide wherein it had turned out that by reason of a failure of the government to prove the death of the person charged as having been murdered it so happened that such person sometimes survived the person accused as his murderer. Therefore, the rule that there must be some evidence tending to prove the fact that death had actually ensued; which was later followed by an additional requirement of some evidence that that death was brought about by some criminal agency.

Now, in this case there was no doubt about there having been a fire, two or three of them, that afternoon and night, in the house in question. Secondly, the state’s evidence set out the whereabouts and conduct of the defendant covering the period in question, the location of the fires, facts and circumstances tending to show that the fires could not have been accidental, the letter that defendant, Maranda,-had told her neighbor that she had received, the broken chandelier allowing the gas to escape so as to facilitate the burning of the building, and other facts and circumstances tending to prove either guilty knowledge or guilty participation, or both, upon the part of the defendant.

It will be noted from the Ohio cases cited, as well as from the text of approved authorities on criminal law and procedure, that no court has yet undertaken to declare a fixed and fast rule as to the quantum of additional or outside evidence necessary to supplement or corroborate a confession before such confession shall be admissible. They do agree, however, that the outside evidence need not be proof beyond a reasonable doubt, of even a prima facie case of guilt against the defendant, but that there must be some proof, not necessarily direct and positive, usually but circumstantial, tending to prove the fact that a crime was committed. If such additional or outside circumstances are offered tending to prove the guilt of the accused as charged, and are corroborative of an extrajudicial confession, such confession, if otherwise voluntary and competent, should be admitted. It would be error to exclude such confession, or withdraw the same from the consideration of the jury.

The commission of arson is as common nowadays as the convictions for arson are uncommon. It is a crime difficult to prove at best. The more complete the burning, the less the evidence surviving.

If the defendant, Maranda, had come into open court and entered a plea of guilty to the charges made in the indictment, the court would have proceeded to impose sentence and judgment upon her, and that without any proof of the corpus delicti. The judicial confession by her plea of guilty would have been sufficient in itself. But this being an extrajudicial confession, one made outside of court, corroborating circumstances tending to prove the criminal burning are necessary as a prerequisite to the admission of the confession, and, notwithstanding the confession is offered in evidence, the court still must charge the jury that the defendant is presumed in fact and in law to be innocent and that before they can return a verdict of guilty they must find from all the evidence of the case that the defendant wilfully and maliciously burned the building, as charged in the indictment.

This would seem to afford ample protection for innocence, and yet not make conviction so difficult as to well-nigh make it impossible. The rule as to corroborating evidence should be substantially the same as it is in the case of an accomplice. It has become the settled practice of our courts to advise juries not to convict upon the uncorroborated evidence of an accomplice, but no court will undertake to define with precision and exactness how much corroboration shall be necessary, or how many elements of the offense charged the corroborating evidence shall tend to prove. It is enough if it tends to prove some material element of the offense. It would be an insuperable handicap to the state if the court were to charge that the corroborating evidence must prove guilt beyond a reasonable doubt, beyond a probability, or even establish a prima facie case. It is enough if under all the evidence, when considered and weighed by the jury, every essential element of the offense has been proven against the defendant beyond a reasonable doubt.

The exceptions, and each of them, are sustained.

Exceptions sustained.

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