author: Summers, J.

text:
    Rodijkeit v. Andrews.

      Assignment of wages is ■ valid, when.

    An assignment of wages to be earned in tbe future under an existing employment is valid.
    (No. 9776
    Decided April 3, 1906.)
    Error to the Circuit Court of Lucas county.
    The plaintiff in error assigned his wages to the defendant in error. A copy of the assignment is as follows:
    “$75.00 Toledo, Ohio, April 22, 1904.

      To the Paymaster, L. 8. & M. 8. R. R. :

    Dear Sir: For value received, I hereby assign seventy-five 00-100 dollars from the amount now due me, or which may hereafter become due me for services rendered the L. S. & M. S. R. R. or any other railway, firm or person wherever I may be employed as switchman and you are hereby authorized to pay the above amount to P. L. Andrews, or his order, and deduct the same in settlement with me.
    No.--. ' (Signed) T. Rodijkeit.”
    In February, 1905, Rodijkeit sued the railroad company before a justice of peace for $51.20 for wages. The railroad company filed an affidavit for interpleader, asking that the defendant and one Ida E. Chandler be made parties, which was allowed and it paid the sum sued for into court.
    The justice ordered the fund to be distributed as follows: (1) The costs; (2) $45.60 to Andrews, and the remainder to be held subject to the justice’s order in the case of Chandler against said Rodijkeit. Ida E. Chandler appealed the case.
    In the court of common pleas Andrews in his answer averred that “on the twenty-second day of April, 1904, the said plaintiff was in the employ of said defendant, The Lake Shore & Michigan Southern Railroad Company, and so remained in the employ of said defendant continually up to the twenty-fifth day of January, 1905; that on the twenty-second day of April, 1904, said plaintiff, for a valuable consideration, assigned to defendant, P. L. Andrews, out of the wages then due or to become due him from said defendant company, the sum of $75.00, and that there is now due this answering déféndant on said assignment, a copy of which is hereto attached and marked Exhibit A and made a part hereof, the sum of forty-five and 60-100 dollars.”
    ■ A general demurrer to this answer, after it had been amended by setting forth in full the assignment, was sustained and the answer dismissed at the cost of Andrews.
    In the circuit court the judgment was reversed and the case remanded with instructions to overrule the demurrér and for further proceedings according to law.
    Error is prosecuted to this court to reverse the judgment of the circuit court and to affirm that of the court of common pleas.

      Mr. James H. Boyd, for plaintiff in error.
    The questions here presented aré whether an assignment of wages to be earned in the future in the absence of a contract of employment, will fee enforced:
    1. As between the assignor and assignee;
    2. As between the assignee and an attaching creditor.
    The plaintiff in error’s grounds for claiming that the aforesaid assignment is void and inoperative are based on the fact that there are no decisions of this Supreme Court bearing on the question at bar and that the brief below gives the • development of the law in those states where the questions, here presented to the court, have been settled by their respective supreme courts and in the courts of England.
    1. The definition of what property and rights may be assigned.
    The definition of what may be assigned is one given by Justice Story and is the foundation of the law in Ohio. Grant v. Ludlow, 8 Ohio St., 38.
    2. Test of assignability.
    It is now necessary to determine what is the meaning of the phrase “Possibilities coupled with an interest. ’ ’

      (a) The test of the assignability of a claim is whether it survives or not. Causes of action which survive to the personal representative are assignable, and those which do not are not assignable. Pomeroy on Remedial Rights, 147; Hepburn’s Case on Code Pleading, 420 et seq.

    As illustrations of those, arising out of contract, which are assignable, are the following: A contract of guaranty, Small v. Sloan, 1 Bosw., 352; Bank of

      Ashland v. Jones, 16 Ohio St., 145; a contract to pave streets, Ernst v. Kunkle, 5 Ohio St., 521; right of a borrower to recover back excessive interest upon a usurious loan, Wheelock v. Lee, 64 N. Y., 242; a contract for the hire of the service of state prison convicts, Horner v. Wood, 23 N. Y., 350. Those which are not assignable are, a vendor’s right of lien, Edwards v. Edwards, 24 Ohio St., 402; Baum v. Grigsby, 21 Cal., 172; nor a wife’s inchoate right of dower, Moore v. New York, 8 N. Y., 110; Grogan v. Garrison, 27 Ohio St., 50; a tenancy at will, Say v. Stoddard, 27 Ohio St., 478; nor a.right of way, Boatman v. Lasley, 23 Ohio St. 614; Whitaker’s Annotated Code, 59.

      (b) Potential existence.
    2 Kent’s Commentaries (12 ed.), side page 468, and foot note (g).

    Of the thing sold. The thing sold must have an actual or potential existence, (g) and be specific or identified, and capable of delivery, otherwise it is not strictly a contract of sale, but a special or executory agreement.
    Mr. Bell, in his principles of the Law of Scotland, 30, states that the hope of succession may be the subject of sale; but in the case from Merivale, Lord Eldon held that such an expectancy could not be the subject of assignment or contract. Reversionary interest and expectancies, founded on settlements and entailments, are the subject of sale, as, see Post, 475-; but a mere hope, where there is no existing right sustaining the expectation, as where the ancestor is seized in fee simple, with a power of alienation and devise, is not the subject of a valid sale.

      (c) 4 Kent’s Commentaries, side page 263; 12th ed., by O. W. Holmes, page 262, note (a).

      Story, J., in Comegys v. Vasse, 1 Peters, 193. The plaintiff in error contends that the decree of the circuit court of Lucas county, Ohio, should be reversed and that the demurrer, sustained in the-common pleas court to the answer of Andrews,, should be sustained and the judgments of the common pleas court confirmed by this Supreme Court,, on the following grounds:
    1. That the assignment executed by Rodijkeit on the twenty-second day of April, 1904, to the said Andrews, defendant in error, is void as against public policy. Chippendall v. Tomlison, 4 Doug., 318; Williams v. Chambers,10 Q. B., 337; Railway v. Woodring, 116 Pa. St., 513; Rose v. Hyndman Steel-Roofing Co., 41 W. L. B., 21.
    2. That the assignment was inoperative to reach any wages of said Rodijkeit beyond those already earned at the time the assignment was executed— Rodijkeit, the assignor, not being under a contract of employment, and it was not so alleged by Andrews in his answer in the court below. Lightbody v. Smith et al., 125 Mass., 51; Low v. Pew, 108 Mass., 347; Twiss v. Cheever, 2 All., 40; Mulhall v. Quinn, 1 Gray, 105; Brackett v. Blake, 7 Metc., 335; Wade v. Bessey, 76 Me., 414; Farnsworth v. Jackson, 32 Me., 419; Steinbach v. Brant, 79 Minn., 383.
    3. That the assignment is inoperative as against an attaching creditor (Ida E. Chandler, in this case), since it had not been accepted by the Lake Shore & Michigan Southern Railway Company. Mandeville v. Welch, 5 Wheat., 279; Gibson v. Cooke, 20 Pick., 15; The Am. Ins. Co. v. Insley, 7 Barr, 223.
    4. That the assignment of a part of a chose in action is inoperative on the ground that to sustain. such an assignment would subject debtors to a multiplicity of suits. Getchell v. Maney, 69 Me., 443.
    An assignment of wages to be earned in the future in absence of a contract of employment is inoperative to convey such wages, and is void, being against public policy.
    In this connection it is to be remembered that an employment at will, no matter how continuous, is not a contract, for—
    A contract, as such, must be enforcible at law, and in case there be a breach an action will lie for damages, and in equity an action will lie for specific performance. 7 Am. & Eng. Ency. Law, 150; Bispham’s Principles (5 ed.), sec. 363; Rose v. Roofing Co., 41 W. L. B., 21.
    To the same effect we cite the leading case from New York. Cooper v. Douglass, 44 Barb., 409.
    The following leading case in Pennsylvania is cited to show that the assignment in question is void as against public policy, that you cannot assign a part of a chose in action, and on equitable grounds. Fairgrieves v. Lehigh Navigation Co. 2 Phila., 182; Railway Co. v. Woodring, 116 Pa. St., 513; Jermyn v. Moffitt, 75 Pa. St., 400; Belden v. Read, 3 Hurl, and Colt., 961; Railway Co. v. Woodring, 116 Pa. St., 513; 2 Story Eq. Jur., sec. 1040.
    The assignment in question is inoperative, there being nothing upon which for it to operate. Tolman v. Steel Roofing Co., 9 Dec., 501; 6 N. P., 467.
    It was on this principle, and these authorities, that the demurrer was sustained. Brooks v. Tolman, 27 O. C. C., 321; Kane v. Clough, 36 Mich., 436; State v. Hastings, 15 Wis., 75; Hawley v. Bristol, 39 Conn., 26; Metcalf v. Kincaid, 87 Ia., 443; Boylen v. Leonard, 84 Mass., 407.

      In all of these cases just cited there was a contract of employment existing at the time of the assignment, excepting the Iowa and Michigan cases, and the court' said that this case should not be distinguished from' the cases involving a contract of employment.
    The rule that the assignment of wages to be earned in the future, in the absence of a contract of employment, is inoperative to convey such wages, is sustained by the following English cases: Belding v. Read, 3 Hurl, and Colt., 961; Lunn v. Thornton, 1 C. B., 379; Gale v. Bunnell, 7 Q. B., 8508; Chippendall v. Tomlinson, 4 Doug., 318; Williams v. Chambers, 10 Q. B., 337.
    The Massachusetts rule is laid down by a well-known case of Lightbody v. Smith et al., 125 Mass., 51. This case is still law in Massachusetts. Low v. Pew, 108 Mass., 347; Twiss v. Cheever, 2 All., 40; Mulhall v. Quinn, 1 Gray, 105; Brackett v. Blake, 7 Metc., 335.
    The seller must have a present interest in the property, of which the thing sold is the product, growth or increase.
    If a person executes an assignment of his wages, due or to become due, while under a contract of employment, such an assignment is ineffectual to reach wages beyond the scope of time covered by the contract of employment in which the assignment was executed, even though the assignor continues in the employment of the same party, under contract covering consecutive periods of time. Twiss v. Cheever, 84 Mass. 40; Brackett v. Blake, 7 Metc., 335.
    A city officer who is chosen for a year, subject to be removed from office at any time, at the will of the mayor and aldermen, and whose salary is payable quarterly, may legally make an assignment of a quarter’s salary before the quarter expires. Mulhall v. Quinn, 67 Mass., 105; Crocker v. Whitney, 10 Mass., 316. The following eases in Massachusetts have been overruled by Lightbody v. Smith: Taylor v. Lynch, 5 Gray, 49; Hartley v. Tapley, 2 Gray, 565; Emery v. Lawrence et al., 8 Cush., 151; Weed v. Jewett, 2 Metc., 698.
    The Central Law Journal, Yol. 52, p. 1, shows that our test of assignability has been affirmed.
    The defendant in error, Andrews, by his counsel, lays great stress on the finding of the court in Mallin v. Wenham, 209 Ill. Rep., 252, to sustain his contention that the assignment in question is valid. The plaintiff in error contends that Mallin v. Wen-ham is not a well considered case and to sustain his contention we call the court’s attention to the cases cited by the court from Massachusetts. Brackett v. Blake, 7 Metc., 355. This case instead of sustaining the contention of the defendant in error sustains the contention of the plaintiff in error. Weed v. Jewett, 2 Metc., 608. But the latter case is overruled by Lightbody v. Smith, 125 Mass., 51, as is also the last case cited from the court in Massachusetts, Emery v. Lawrence, 8 Cush., 151; an assignment of wages for a specified time on account of necessaries furnished.
    The rule laid down in Maine by the following cases is of great importance, since they define not only what wages to be earned in the future can not be assigned, but also what can. Wade v. Bessey, 76 Me., 414; Farnsworth v. Jackson, 32 Me., 419.
    The rule in Minnesota as laid down that there must be a contract of employment to sustain an assignment of wages to be earned in the future. Steinbach v. Brant, 79 Minn., 384.

      An assignment which, professes to transfer a debt to arise for wages not yet earned against any person by whom the assignor may therefor be employed, .although followed by a subsequent notice of assignment to such an employment, is insufficient without acceptances to make a valid transfer of the debt •against the employer. Jermyn v. Moffitt, 55 Pa. St., 399.
    Without the assent- of the debtor both upon principle and authority that a creditor cannot assign part of a debt or chose in action so as to give even an equitable interest in said assigned fraction of it or create any lien upon it. Farnham v. Virgin, 52 Me., 577; Robbins v. Bacon, 3 Me., 346; Cutts v. Perkins, 12 Mass., 210.
    But without such assent of the debtor it is clear, both upon principle and authority, that a creditor cannot assign part of a debt or chose in action, so ;as to give even an equitable interest in said assigned fraction of it or create any lien upon it. Mandeville v. Welch, 5 Wheat., 287; Gibson v. Cooke, 20 Pick., 15; Tripp v. Brownell, 12 Cush., 381; Bullard v. Randall, 1 Gray, 605; Drake on Attachments (3 ed.), sec. 611.

      Mr. Myer Geleerd, for defendant in error.
    An examination of the reported cases will show that this is not a new question, for in 1836 it was held that a sailor under contract to ship upon a whaling ■expedition, whose compensation was to be a percentage of the oil obtained, could make a valid sale of his prospective interest. Gardner v. Hoeg, 18 Pick., 168.
    The question involved, as to assignments, has been passed upon by the courts of the different states, and of England; and the courts, without exception, have upheld such contracts. ' ’
    An examination of the published decisions' will show the following rule to be well established:' A person may make a valid sale, or assignment, of his unearned wages, if he is employed at the time he makes the sale or assignment, or had a bona fide contract to enter the employ of some person within a reasonable time, and this is true even if he is working by the day, without any stipulation as to how long his employment will continue, or if he is paid by the piece. Kane v. Clough, 36 Mich., 436; Manly v. Bitzer, 91 Ky., 596; Brewer v. Greisheimer, 104 Ill. App., 323; Mallin v. Wenham, 209 Ill., 252; Auger v. N. Y. Belting Co., 39 Conn., 536; Railway v. Smeeton, 2 Col. App., 126; Darling v. Andrews, 91 Kas., 106; Ouimet v. Sirois, 124 Mass., 162; Wade v. Bessey, 76 Me., 413; Knevals v. Blauvelt, 82 Me., 458; Edwards v. Peterson, 80 Me., 367; Bates v. Richards Lumber Co., 56 Minn., 14; Schilling v. Mullen, 55 Minn., 122; Morrill v. Noyes, 56 Me., 458; Hax v. Plaster Co., 82 Mo. App., 447; Bell v. Mulholland, 90 Mo. App., 612; Garland v. Harrington, 51 N. H., 409; Cooper v. Douglass, 44 Barb., 409; Perkins v. Butler Co., 44 Neb., 110; Metcalf v. Kincaid, 87 Ia., 443; Godcharles v. Wigeman, 113 Pa., 431; Dolan v. Hughes, 20 R. I., 513; Thayer v. Kelley, 28 Vt., 19; Porter v. Dunlap, 17 Ohio St., 591; Johnson v. Donohue, 83 S. W. Rep., 360; Tolman v. Roofing Co., 9 Dec., 501; 6 N. P., 467; Mulhall v. Quinn, 1 Gray, 105; Jermyn v. Moffitt, 75 Pa. St., 399; Railway Co. v. Woodring, 116 Pa., 513; Twiss v. Chever, 2 All., 40; Cooper v. Douglas, 44 Barb., 409; Boyland v. Leonard, 84 Mass., 407; Hackett v. Zundell, 3 O. L. R., 47; In re Karnes, Bankrupt, 3 O. L. R., 505; Brooks Co. v. Tol

      man, 27 O. C. C., 321; 6 C. C. (N. S.), 137; 2 Am. & Eng. Ency. Law (1 ed.), 1031; 4 Cyc. of Law and Proced., 17, 18.
    The record shows that at the time Rodijkeit executed the assignment to Andrews he was in the employ of the Lake Shore & Michigan Southern Railway Company, and remained continuously in its employ, and that the railroad company had due notice of this assignment. Consequently the subject matter of the thing assigned had a potential existence.
    The assignment in question is not against public policy. Mallin v. Wenham, supra, 209 Ill., 253; Edwards v. Peterson, supra, 80 Me., 367; Smith v. Atkins, 18 Vt., 461; Greenhood on Public Policy, 116, 117; Frorer v. People, 141 Ill., 171; Carroll v. E. St. Louis, 67 Ill., 568.
    We concede that an assignment by. a public officer of unearned compensation, as such, is void as against public policy. And the reasons for so holding are clearly stated in the recent case of Burch v. Harte, Clerk, 1 N. P. (N. S.), 477; 4 Cyc., 19.
    It may be suggested that the assignment is irregular in form. There are a few words in the assignment that might be omitted, but this does not invalidate the assignment. There can be no dispute but that Rodijkeit intended to assign to defendant in error out of his wages to be earned, the sum of $75.00 for a valuable consideration at the time the assignment was executed, and this instrument clearly indicates upon its face that it is an assignment. As to the other contract of employment, see Brewer v. Griesheimer, 104 Ill. App., 323.
    When notice of the assignment was given to the Lake Shore & Michigan Southern Railway Company by filing with it the assignment, the rights of all the parties became fixed, and nothing that either Rodijkeit or the Lake Shore & Michigan Southern Railway Company could do (except pay the amount) could affect the rights of the defendant in error. So long as the Lake Shore & Michigan Southern Railway Company received no notice of the assignment while Rodijkeit was in its employ, no relation or liability existed on the assignment as between the parties. Schilling v. Mullen, 55 Minn., 112.
    The assignment was presented, became effective and attached to the wages earned under the contract of employment contemplated by the assignor and assignee. ' It was presented to the railway company in whose employ the assignor was at the time the assignment was executed, and to whom it was addressed, and it was presented to the railway company in sufficient time to enable it to preserve the rights of the defendant in error to protect itself.
    It is suggested in the plaintiff in error’s brief that an assignment of a part of a chose in action is inoperative, on the ground that it would subject the debtor Lake Shore & Michigan Southern Railway Company to a multiplicity of suits.- We concede this. The railroad company has paid the money into court, and is, therefore, not a party to this proceeding.
   Summers, J.

Two of the questions argued by plaintiff in error, namely, that the assignment, not having been accepted by the debtor, was not effective against the attaching creditor, Ida E. Chandler; and that the assignment, being of a part only of a chose in action, is not enforcible against the debtor, are not presented by the record. The first because Ida E. Chandler is hot a party to the proceeding in error and the’second because the railroad company did not refuse payment.

The question presented is the right of a person in the employ of another, in the absence of a contract for a definite time of employment, to assign future earnings from such employment.

It is well settled that a mere expectancy or possibility is not assignable at law, consequently wages to be earned in the future, not under an existing engagement but qnder engagements subsequently to be made, are not assignable. If there is an existing employment, under which it may reasonably be expected that the wages assigned will he earned then the possibility is coupled with an interest and the wages may be assigned. Mallin v. Wenham, 209 Ill., 252; Metcalf v. Kincaid, 87 Ia., 443; Peterson v. Ball, 121 Ia., 544; Bell v. Mulholland, 90 Mo. App., 612; Manly v. Bitzer, 91 Ky., 596; Schilling v. Mullen, 55 Minn., 122; Augur v. N. Y. B. & P. Co., 39 Conn., 536; Garland v. Harrington, 51 N. H., 409; Mulhall v. Quinn, 1 Gray, 105; Hartley v. Tapley, 2 Cray, 565; Brackett v. Blake, 7 Metc., 335; Low v. Pew, 108 Mass., 347; Lightbody v. Smith, 125 Mass., 51; O’Keefe v. Allen, 20 R. I., 414; Dolan v. Hughes, 20 R. I., 513; Thayer v. Kelley, 28 Vt., 19.

' Some of the early cases were to the effect that the engagement must be for a time covering the wages assigned. Mulhall v. Quinn, 1 Cray, 105; Hartley v. Tapley, 2 Cray, 565; Taylor v. Lynch, 5 Cray, 49; Lannan v. Smith, 7 Cray, 150. And later cases held that the assignment was valid although the engagement was subject to be terminated at any time.

But in Kane v. Clough, 36 Mich., 436, Cooley, C. J., states that he is unable to distinguish a case of existing employment merely, where there is no contract for a definite time, bnt only an employment, and an expectation of continuous work, from a case of an existing contract for a fixed time but subject to the right to discharge at will, and, accordingly, it is there ruled that an assignment of wages to be earned in the future under an existing employment is valid.

“An assigmnent of wages to be earned in the future under an existing employment, even though the employment is for an indefinite time, is not against public policy and is valid if made for a valuable consideration and untainted with fraud.” Mallin v. Wenham, 209 Ill., 252. ‘ ‘ An assignment of wages yet to be earned is good as against the claims of attaching creditors, if accepted, and if, at the time it is made, there is an existing engagement or employment by virtue of which wages are being, and in the future may reasonably be expected to be earned, even though there is no contract or fixed time of employment.” Metcalf v. Kincaid, 87 Ia., 443. ‘ ‘An assignment of wages to be' earned, made in good faith and for a valuable consideration, is valid. And it makes no difference that the work is being done without a special contract as to it, but only upon an understanding that the employe should continue in the service of the employer ,,as before, at the usuaL wages and in the ordinary course of employment.” Augur v. N. Y. B. & P. Co., 39 Conn., 536. “The fact that a contract of employment is silent ás to the time of its termination does not affect the right of the employe to assign his wages arising under the contract. If the hiring be by the day it is not necessarily for a single day but is a .continuous hiring by the day so long as the contract continues.” Dolan v. Hughes, 20 R. I., 513. “A person in the actual employment of another from whom he is receiving wages at a stipulated rate, may make a valid assignment of his future earnings; although the employment is for no definite period, and may be terminated at any time by either party.” Thayer v. Kelley, 28 Vt., 19. “An assignment of prospective wages, to be earned under an existing employment of either certain or uncertain duration, if made in good faith for a valuable consideration, is upheld by the courts, whether intended as a security for present or future advances, or as an outright sale. But if the assignor has no employment at the date of the assignment, which is executed in contemplation of the possible future employment it may attach to, the contract is invalid.” Bell v. Mulholland, 90 Mo. App., 612. “Future wages to be earned under a present contract imparting to them a potential existence, may be assigned although the contract may be indefinite as io time and amount, unless affected by the statute requiring registration.” Wade v. Bessey, 76 Me., 413. “When a party has entered into a contract or .arrangement, by the ordinary and legitimate and natural operation of which he will acquire property, his existing right thereunder is not a mere naked hope; it is a possibility of acquiring property coupled with a legal interest in the contract. The cargo to be obtained or the freight to be earned by a ship on a voyage already contracted for, the wages to be earned under an existing employment, the payment to become due under an existing building contract, are familiar examples. ’ ’ Pomeroy Equity Jurisprudence, sec. 1286.

“An assignment of his wages.by a laborer, executed when he is' not engaged in, and not under contract for, the employment in which the wages are to be earned is too vagne and uncertain to be sustained as a valid assignment and transfer of property.” Lehigh V. R. Co. v. Woodring, 116 Pa. St., 513. But “an assignment of wages expected to be earned in the future in a specified employment, though not under an existing employment or contract is valid in equity.” Edwards v. Peterson, 80 Me., 367. The reason such an assignment is not good at law but may be in. equity is tersely stated thus: “To make a grant or assignment valid at law, the thing which is the subject of it must have an existence, actual or potential, at the time of such grant or assignment. But courts of equity support assignments not only of choses in action, but of contingent interests and. expectations, and also of things which have no present actual or potential existence, but rest in mere possibility only.” Smithhurst v. Edmunds, 1 McCart., 416. .'“The invalidity of a grant at law of a mere expectancy imports no more than that it is ineffectual to pass the legal title. Equity construes the instrument as imposing a lien upon the res when produced or acquired, leaving the legal title still in the grantor, who may by some act ratify the same, as by delivery of the property, and then the legal title is complete in the vendee.” Everman v. Robb, 52 Miss., 653. “The reason that it may be different in equity is .not that a man conveys in presentí what does not exist, but that what is in form a conveyance operates in equity by way of present contract merely, to take effect and attach to the things assigned as soon as they come in esse; to be regarded before that time only as an agreement to convey, and after that time as a conveyance.” Peters, J., in Emerson v. E. & N. Ry. Co., 67 Me., 387, 391.

The case of Lehigh V. R. Co. v. Woodring, 116 Pa. St., 513, supra, is principally relied upon by plaintiff in error. But that case is not an authority against the conclusion reached in the present case but rather supports it, for it impliedly admits that an assignment of future wages under an existing employment is valid, which is the fact in the case under consideration, and it then holds that an assignment of wages to be earned in the future and not under an existing contract is invalid, with which question we are not at present concerned.

It is true that the judge of the lower court in that case in his opinion says that all such assignments should be declared void as being against public policy and further “Should the law be declared to be that such an assignment is valid, it is not difficult to see that it would open the door to improvidence and profusion on the part of the assignor, and in the end to utter and hopeless poverty. Take the case of any wage earner, or salary earner, or any one who is compelled to work for a living, for in either case the principle is the same. He conceives himself to be in want of money, whether for necessaries or luxuries makes no difference. He finds that he can raise the coveted money by assigning his future earnings to become due from any and every source. No purchaser offers for his wages in any existing employment, for he may quit that employment at any time and thus render worthless his assignee’s security. He therefore, under the pressure of his supposed wants, pledges his whole money-earning power for a price. Presently the money or provisions, or what not, thus acquired are all gone. They may have been recklessly squandered; they may have been doled out only for the very necessaries of life, during a period of sickness or other misfortune; it’s all the same. He is not only penniless, hut he has incurred a debt which it may require months and even years to work off. Turn where he will, g*o where he will, his creditors may follow him and sweep away every dollar of his earnings until his debt is paid. In the meantime his children are clamoring for bread.”

These reasons are very like those which are said by Denman, J., in Hale v. Hollon, 90 Tex., 427-430, to' have led the courts of equity to refuse to enforce a sale of a mere expectancy of inheritance unless it was shown that the transaction was free from fraud.. But the judge in the Pennsylvania case, supra, even in what is said respecting public policy liad reference to an assignment of all wages past and future so long* as the assignee’s claim remained unpaid, which is not the present, case. But it is said that in 1905, the year following the decision in Mallin v. Wenham, supra, the legislature of Illinois passed an act in relation to the assignment of wages, the fourth section of which provided that “every assignment of wages to be earned in whole or in part more than six months from and after the making of such assignment shall be absolutely void.” This, however, does not tend to discredit the correctness of'the conclusion reached but only to show that in the opinion of the legislature there was need of legislation.

In Smith v. Atkins, 18 Vt., 461, it is held that “a lease of land, reserving rent, and which provides that all the crops raised on the land during the term are to be the property of the lessor until rent is paid, is valid.” And in the opinion Redfield, J., says: “It is argued, that such contracts are so much, against public policy, that they ought not to be supported. But we think, they are rather beneficial, and enable the poor man to obtain credit and the use of land, when he could not otherwise do it, and that without detriment to the creditors. And we do not perceive how this will enable him to deceive any one, as the nature of his property may be as well ascertained in such case, as in any other. So far as there is any principle of policy involved in questions of property, it is supposed to have reference to the security of property and credit to those who most stand in need of such protection, who are not generally of the same class of persons. The rule here adopted, we think, secures both far better than the opposite rule could.”

The case immediately preceding was cited with approval on the question of public policy in the case of Edwards v. Peterson, 80 Me., 367. In Manly v. Bitzer, 91 Ky., 596, 598, Chief Justice Holt says: “Looking at the question from the standpoint of public policy, there are two views presented, which, perhaps, balance each other. If the wage-earner in a case like this one be permitted to sell and transfer his unearned wages, the honest creditor may sometimes be defrauded; but, upon the other hand, it may often be necessary to the subsistence of the laborer and his family, as is claimed was true in this instance. ’ ’

In Godcharles & Co. v. Wigeman, 113 Pa. St., 431, the court had under consideration an.act (1881 P. L., 147) requiring persons and companies engaged in any kind of manufacturing to “settle with their employes at least once in each month and pay them the amounts due them for their work or services in lawful money of the United States or by the cash order as described and required in section 3 of this act; provided that nothing herein contained shall affect the right of an employe to assign the whole or any part of his claim against his employer. ’ ’ And it is said “The orders given by the defendants and received by the plaintiff constituted a proper set-off. The first, second, third and fourth sections of the act of June 29, 1881, are utterly unconstitutional and void, inasmuch as by them an attempt has been made by the legislature to do what, in this country, cannot be done; that is, prevent persons who are sui juris from making their own contracts. The act is an infringement alike of the right of the employer and the employe; more than this, it is .an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States.

“He may sell his labor for what he thinks best, whether money or goods, just as his employer may sell his iron or coal, and any and every law that proposes to prevent him from so doing is an infringement of his constitutional privileges, and consequently vicious and void.”

Whether or not an act precluding an assignment of wages would be constitutional we are not called upon to determine, but it is worthy, of note, on the question of public policy, that in the act just referred to the legislature thought it proper to safeguard the right of the employe to assign his wages.

In The Brooks Co. v. Tolman, 6 O. C. C. (N. S.), 137, it was held that “an assignment of wages or salary to be earned under an existing employment, made in good faith and for a valuable consideration, is valid where the relation between the employe and his employer is such that the employe may reasonably be expected to earn the wages covered by the contract, and against such a contract and claim even homestead exemption cannot prevail.” That case was affirmed 74 Ohio St., 427.

The question there presented is the same as that raised here. In each case the wages earned were earned under an engagement existing at the time the assignment was made.

The assignment in each case is not limited to the wages to be earned under the existing employment but in express terms includes those to be earned in any other employment, but the question whether the assignment would be effective as to wages earned under engagements other than the one existing is not raised and is not considered. Brewer v. Greisheimer, 104 Ill. App., 323.

In Porter v. Dunlap, 17 Ohio St., 591, a teacher engaged in teaching assigned a specific amount of his wages earned and unearned and it was ruled that the assignment was good in equity. The question whether it was good at law does not seem to have been presented and was not considered.

Affirmed.

Shauck, C. J., Price, Crew and Davis, JJ., concur.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    Klunk v. The Hocking Valley Railway Company.

      Action against railway company by. locomotive fireman — For personal injury from defect in water gauge glass of locomotive — Burden of proof upon the plaintiff — To create presumption of negligence — Section 8865-21, Revised Statutes —Law of negligence — Law of evidence. •

    1. On the trial of an action against a railroad company brought by á locomotive fireman for a personal injury received by him in consequence of a defect in the water gauge- glass attached to the locomotive upon which he was employed, an instruction, that to overcome the effect of the prima facie evidence of negligence arising from proof of such defect, “the defendant company is required to satisfy the jury by a preponderance of the evidence that it was not negligent,” is erroneous.
    2. In such action the burden of proving, by a preponderance of the evidence, the particular negligence alleged, is at all times upon the plaintiff, and while proof of facts sufficient under the statute, (section 3365-21), to create a prima facie presumption of negligence against the defendant casts upon it the burden of producing evidence of equal weight or countervailing force, in order to control or destroy such presumption, yet proof of such facts does not impose upon the defendant the burden of establishing affirmatively, by a preponderance of the evidence, that it was not negligent.
    3. The rule is that he who affirms must prove, and when the whole of the evidence upon the issue involved leaves the case in equipoise, the party affirming must fail.
    (No. 9645
    Decided April 3, 1906.)
    Error to the Circuit Court of Franklin county.
    Suit was brought by the plaintiff in error, William H. Klunk, in the court of common pleas of Franklin county, Ohio, against the defendant in error, The Hocking Valley Railway Company, to recover damages for an alleged personal injury sustained by him while in the performance of his duties as an employe of said railway company, in the capacity of locomotive fireman. In his petition, as and for his cause of action, plaintiff alleged that:
    “On the thirteenth day of January, 1902, the plaintiff was in the defendant’s employ in the capacity of a locomotive fireman, and then and there performing the duties incident to such employment upon engine No. 222 on a southbound siding just north of Marion, Ohio. That said engine was then and there the property and machinery of the defendant company; that said defendant then and there disregarded its duty to furnish a safe and secure engine, and conducted itself so carelessly and negligently and unsldllfully in this behalf that it provided an unsafe, defective and insecure appliance to said engine and boiler, to-wit, a worn and defective water glass or water glass gauge; that said gauge had become worn with age until the same was unfit and unsuited for said purposes as the defendant well knew, or by the use of reasonable caution and care should have known, but of which the plaintiff did not know and had not the means of knowing.
    In consequence of said negligence of said defendant, then and there, while plaintiff in said capacity of fireman, was performing the duties of said fireman upon said engine, then and there in the defendant’s service, and wholly without any fault or neglect of said plaintiff, the- said water glass, by reason of said unsafeness, defectiveness and insecurity, burst and broke into many pieces, and one of the fragments, thereof was then and there hurled into the eyeball of the plaintiff’s left eye, by reason thereof plaintiff became sick, ill and unable to do any work for five weeks and incurred an expense of — in medical and other attendance in attempting to be cured, and completely lost the sight of his said left eye and is permanently injured thereby and therein to his damages in the sum of $10,000, for which he asks judgment. ’ ’
    The defendant railway company in answer to said petition, among other defenses, pleaded the general denial, assumption of risk, and contributory negligence on the part of plaintiff. The trial in the court of common pleas resulted in a verdict and judgment for the plaintiff. On error, this judgment was reversed by the circuit court, on the sole ground that the trial court erred in its instructions to the jury. To obtain a reversal of this judgment of the circuit court, the present proceeding in error is prosecuted in this court.

      Mr. F. 8. Monnett and Messrs. Pugh '£ Pugh, for plaintiff in error,
    cited and commented upon the following authorities :

      Railway Co. v. Erick, 51 Ohio St., 146; 20 Century Digest, 204; Railroad Co. v. Burris, 14 O. F. D., 182; 111 Fed. Rep., 828; Brandon v. Cabiness, 10 Ala., 155; National Bank v. Baldenwick, 45 Ill., 375; Insurance Co. v. Paver, 16 Ohio, 324; Hanson v. Stephenson, 32 Ia., 129; Broughton v. Smart, 59 Ill., 440; 1 Elliott on Evidence, sec. 129; Thayer’s Preliminary Treatise on Evidence, 378; 4 Wigmore on Evidence, secs. 2483 to 2498, 2509; Jones v. Stevens, 5 Metc., 373; Allen v. Hawks, 11 Pick., 359; 1 Wharton on Evidence, sec. 357; Amos v. Hughes, 1 Mac. & Rob., 464; Story on Promissory Notes, sec. 181; McKenzie et al. v. Oregon Imp. Co., 31 Pac. Rep., 748; Hesse, Admx., v. Railroad Co., 58 Ohio St., 167; Railroad Co. v. Hesse, 62 Ohio St., 655; Railway Co. v. Hornsby, 202 Ill., 138; 66 N. E. Rep., 1052; Mineral Railway

      Co. v. Harris, 98 Ala., 326; 13 So. Rep., 377; Railway Co. v. Malone, 109 Ala., 509; 20 So. Rep., 33.

      Mr. C. O. Hunter, for defendant in error,
    cited and commented upon the following authorities:
    1 Greenleaf (15 ed.), chap. 3, sec. 74 (note); Scott v. Wood, 81 Cal., 400; Davis v. Bartlett et al., 12 Ohio St., 534; Sanns v. Neal, 52 Ohio St., 56; Burnham v. Allen, 1 Gray, 500; Blanchard v. Young, 11 Cush., 345; Spalding v. Hood, 8 Cush., 605; Eaton v. Alger, 47 N. Y., 351; Caldwell v. Navigation Co., 47 N. Y., 290; Willett v. Rich, 142 Mass., 356; Cass v. Railroad Co., 14 All., 448; Heinemann v. Heard, 62 N. Y., 455; 22 Am. & Eng. Ency. Law (2 ed.), 1177; Bain v. State, 74 Ala., 39; North Chicago Str. Co. v. Louis, 138 Ill., 10; French v. Day, 89 Me., 441; Strand v. Railway Co., 67 Mich., 381; Altschuler v. Coburn, 38 Neb., 890; McKenzie v. Oregon Imp. Co., 5 Wash., 414; Thomas v. Paul, 87 Wis., 613; Railway Co. v. Erick, 51 Ohio St., 146; Hesse, Admr. v. Railway Co., 58 Ohio St., 170; Coal & Car Co. v. Norman, 49 Ohio St., 598; Troy v. Evans, 97 U. S., 3; Kelly v. Jackson, 6 Pet., 622; Birney v. State, 8 Ohio, 230; Miller v. State, 3 Ohio St., 475; Crabtree v. State, 30 Ohio St., 382; Walters v. State, 39 Ohio St., 215; Lyon v. Fleahmann, 34 Ohio St., 156; Ferguson v. Guilbert, 16 Ohio St., 88; Shinn v. Tucker, 37 Ark., 588; Keener v. State, 24 S. E. Rep., 29; Moriarty v. Moriarty, 108 Mich., 249; State v. School District, 55 Neb., 321; Knopke v. Insurance Co., 99 Wis., 296; Lovejoy v. State, 62 Ark., 480; Pease v. Cole, 53 Conn., 53; Brown v. Mitchell, 102 N. C., 371; Jester v. Steiner, 86 Tex., 415; Best on Evidence (Am. ed. by Chamberlayne, 1883), sec. 256 (note); 1 Taylor on Evidence (9 ed.), 276; (Am. notes); Thayer’s cases on Evidence, 44; Lamb v. Railway Co., 46 N. Y., 271; Powers v. Russell, 13 Pick., 76; Baxter v. Abbott, 7 Gray, 71; Com. v. Heath, 11 Gray, 303; Railway Co. v. Brazzil, 72 Tex., 233; Long v. Long, 44 Mo. App., 141; Livery Co. v. McKelvy, 55 Mo. App., 240; 4 Thompson, 66; Insurance Co. v. La Boiteaux, 5 Dec. Re., 242; 4 Am. L. Rec., 1; Crane v. Morris, 6 Pet., 598; Railway v. O’Doherty, 6 State Tr. (N. S.), 831; Bridge Corporation v. Butler, 2 Gray, 132; Broomfield v. Smith, 1 M. & W., 542; Tennessee Coal, etc., Co. v. Hamilton, 100 Ala., 252; People v. Bushton, 80 Cal., 160; Southworth v. Hoag, 42 Ill., 446; Oaks v. Harrison, 24 Ia., 179; Tarbox v. Eastern Steamboat Co., 50 Me., 345; State v. Flye, 26 Me., 312; Small v. Clewley, 62 Me., 157; Woodcock v. Calais, 68 Me., 244; Tourtellot v. Rosebrook, 11 Metc., 460; Morrison v. Clark, 7 Cush., 213; Sperry v. Wilcox, 1 Metc., 270; Wright v. Wright, 139 Mass., 177; Manistee Nat. Bank v. Seymour, 64 Mich., 72; Aulls v. Young, 98 Mich., 231; Seavy v. Dearborn, 19 N. H., 351; Shepardson v. Perkins, 60 N. H., 77; Blodgett v. Cummings, 60 N. H., 116; Blunt v. Barrett, 124 N. Y., 117; Goldschmidt v. Life Ins. Co., 102 N. Y., 486; Bell v. Skillicorn, 6 N. M., 399; Pusey v. Wright, 31 Pa. St., 387; Atlas Bank v. Doyle, 9 R. I., 78; Clark v. Hills, 67 Tex., 141; Tucker v. Sandidge, 85 Va., 546; Atkinson v. Goodrich Transp. Co., 69 Wis., 13; Moffat v. United States, 112 U. S., 24; United States v. Iron Silver Mine Co., 128 U. S., 673; Untermeyer v. Freund, 37 Fed. Rep., 342; State v. Lee, 37 Atl. Rep., 75; Railway Co. v. Powell, 89 Ga., 61; Kitner v. Whitlock, 88 Ill., 513; Smith v. Sac County, 11 Wall., 139; Combs v. Hodge, 21 How., 397; Collins v. Gilbert, 94 U. S., 753; Stewart v. Lansing, 104 U. S., 505; White v. McGarry,
      2 Flip., 572; Matter of White, 6 Dem. 375; Pickup v. Insurance Co., L. R., 3 Q. B. Div., 594; Simpson v. Davis, 119 Mass., 269; Crowinshield v. Crowinshield, 2 Gray, 524; Scott v. Insurance Co., 1 Dill, 105; United States v. Shapleigh, 12 U. S. App., 26; N. Y. Acc. Ins. Co. v. Clayton, 19 U. S. App., 304; Yarbrough v. Arnold, 20 Ark., 598; Munson v. Atwood, 30 Conn., 102; Mead v. Husted, 52 Conn., 56; 52 Am. Rep., 554; Taylor v. Pegram, 151 Ill., 118; Robinson v. Randall, 82 Ill., 521; Bissell v. West, 35 Ind., 54; Welch v. Jugenheimer, 56 Ia., 11; Knowles v. Scribner, 57 Me., 495; Ellis v. Buzzell, 60 Me., 209; Schmidt v. Fire Ins. Co., 1 Gray, 529; Gordon v. Parmelee, 15 Gray, 413; Burr v. Willson, 22 Minn., 206; Thoreson v. Insurance Co., 29 Minn., 107; Rothschild v. Insurance Co., 62 Mo. App., 45; Union Stock Yards Co. v. Conoyer, 41 Neb., 629; Folsom v. Brawn, 25 N. H., 114; Seybolt v. Railway Co., 95 N. Y., 562; Jones v. Greaves, 26 Ohio St., 2; 20 Am. Rep., 752; Perley v. Perley, 144 Mass., 104; Burnham v. Allen, 1 Gray, 496; Simpson v. Davis, 119 Mass., 269; Delano v. Bartlett, 6 Cush., 364; Spaulding v. Hood, 8 Cush., 605; Kitner v. Whitlock, 88 Ill., 513; Stevenson v. Marony, 29 Ill., 532; McClure v. Pursell, 6 Ind., 330; Benoit v. R. C. Co., 154 N. Y., 223; King v. Hopkins, 57 N. H., 334; Wigmore on Evidence, sec. 2494; Bailey’s Onus Probandi, 5; 1 Taylor on Evidence, sec. 376; Best on Evidence, sec. 273; Stevens Digest, art. 95, p. 106; State v. Lee, 37 Atl. Rep., 79; Boulden v. McIntire, 119 Ind., 574; Manning v. Thompson, 17 U. C. C. P., 606.
   Crew, J.

On the trial of this cause in the court of common pleas, at the request of counsel for the plaintiff, William H. Hunk, the court gave to the jury the following special instruction:

“If you should find from the preponderance of the evidence that the plaintiff was injured as stated in his petition and that he received the injury by reason of any defect in the water gauge or glass attached to the locomotive while he was acting as an employe of the defendant company, then the defendant is deemed to have knowledge of such defect and the fact of such defect is prima facie evidence of negligence on the part of the defendant company. This means that in the absence of any other evidence in the case bearing on the knowledge of the defendant company it would require you to presume that the defendant was negligent. If such presumption arose in the case to overcome the effect of the knowledge so presumed by the statute, the defendant company would have to show that in fact it did not have such knowledge and could not have had it by the exercise of reasonable care, and that it used due diligence to ascertain and remedy the defect, or to put it another way, the burden of overcoming the presumption or inference of negligence rested upon the defendant company and it was required to satisfy you by a preponderance of the evidence that it was not negligent”

In the general charge the court further instructed the jury as follows:

“If you find from the evidence that said water glass was then and there defective, and that plaintiff received said injuries in consequence thereof, then such is prima facie evidence of negligence on the part of the defendant. This, however, does not preclude the defendant from rebutting such prima facie evidence of negligence by showing that it had not in fact knowledge of the defect, and that it was not guilty of negligence.
“In order to overcome such presumption the defendant must show, by a preponderance of the evidence, that it did not at the time of the bursting and breaking of said water glass have such knowledge, and that it could not have obtained such knowledge by the use of ordinary care, skill and diligence. ’ ’

Each of the above instructions was held and adjudged by the circuit court to be erroneous in that, each imposed upon the railway company the obligation of producing a preponderance of evidence in order to meet and rebut the prima facie presumption of negligence raised against it by the statute, upon proof of certain facts by the plaintiff. The correctness of this judgment of the circuit court is the sole question presented by the record in this case, for determination by this court. It is claimed by counsel for plaintiff in error in support of the instructions given, that the same were fully authorized and warranted in the present case by section 3365-21, Revised Statutes. This section applies to railroad corporations only, and is as follows: “It shall be unlawful for any such corporation to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any manner defective. If the employe of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachments thereto belonging, owned and operated, or being run and operated by such corporation, such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is so sustained, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state, brought by such employe, or his legal representatives, against any railroad corporation for damages, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation. Undoubtedly the effect of this statute is to create a prima facie presumption of negligence against the railroad corporation whenever, in an action brought by an employe against such corporation for damages on account of an injury received, it shall be made to appear that the injury complained of, resulted from and was occasioned by some defect in a car or locomotive or the machinery or attachments thereto belonging, owned, run or operated by said corporation at the time of such injury. But while the effect of this statute, — in the cases to which its provisions apply,— is to so modify the rules of evidence as to make the proof of such defect prima facie evidence of negligence on the part of the corporation, yet this statute neither changes nor affects the rule as to the quantum or degree of evidence sufficient or necessary to rebut and control the prima facie case thus raised; The general rule would seem to be well established by an almost unbroken line of authority, — that to rebut and destroy a mere prima facie case, the party upon whom rests the burden of repelling its effect, need only produce such amount or degree of proof as will countervail the presumption arising therefrom. In other words, it is sufficient if the evidence offered for that purpose, counterbalance the evidence by which the prima facie case is made out or established, it need not overbalance or outweigh it. Chief Justice Deemer in Gibbs v. Bank, 123 Ia., 742, states the rule thus: “When a prima facie case is made out by presumption or otherwise, in order to destroy its effect and shift the burden of producing further evidence the party denying it must produce evidence tending to negative the claim asserted to a point where, if no more testimony is given, his adversary cannot win by a preponderance of the evidence. Smith v. Sac County, 11 Wall., 139 (20 L. Ed., 102); Stewart v. Lansing, 104 U. S., 505 (26 L. Ed., 866); Foster v. Hall, 12 Pick., 89 (22 Am. Dec., 400); M. P. R. R. v. Brazzil, 72 Tex., 233 (10 S. W. Rep., 403). It is clearly a misnomer of terms to say that the burden of proof swings like a pendulum from one side to the other during the progress of a trial. All that is meant is that the duty of introducing evidence to meet a prima facie case shifts back and forth. Pease v. Cole, 53 Conn., 53 (22 Atl. Rep., 681; 55 Am. Rep., 53). The burden of proof at all times rests upon him who affirms. 1 Taylor on Evidence (9 ed.), 276; Am. Notes, 12; Willett v. Rich, 142 Mass., 360 (7 N. E. Rep., 776; 56 Am. Rep., 684); Heinemann v. Heard, 62 N. Y., 488.” In Scott v. Wood, 81 Cal., 398, Hayne, C., commenting upon an instruction given by the trial court in that case, touching the quantum of evidence necessary to rebut a prima facie case, says: '“We think that the court erred in telling the jury that the defendant was required to have a preponderance of testimony upon the question mentioned. The term ‘burden of proof’ is used in different senses. Sometimes it is used to signify the burden of making or meeting a prima facie case, and sometimes the burden of producing a preponderance of evidence. These burdens are often on the same party. But this is not necessarily or always the case. And it is by no means safe to infer that because a party has the burden of meeting a prima facie case, therefore he must have a preponderance of evidence. It may be sufficient for him to produce just enough evidence to counterbalance the evidence adduced against him.” Perhaps one of the best statements to be found of the rule now under consideration, is that given by Chief Justice Shaw in Powers v. Russell, 13 Pick., 76, as follows: “It may be useful to say a word upon the subject of the burden of proof. It was stated here that the plaintiff had made out a prima facie case, and, therefore, the burden of proof was shifted and placed upon the defendant. In a certain sense this is true. Where the party having the burden of proof establishes a prima facie case, ■and no proof to the contrary is offered, he will prevail. Therefore, the other party, if he would avoid the effect of such prima facie case, must produce evidence, of equal or greater weight, to balance and control it, or he will fail. Still the proof upon both sides applies to the affirmative or negative of one and the same issue, or proposition of fact; and the party whose case requires the proof of that fact, has all along the burden of proof. It does not shift, though the weight in either scale may at times preponderate.” The rule as announced in the authorities above cited finds additional support in the following cases: Lamb v. Camden & Amboy R. R. & T. Co., 46 N. Y., 271; Atkinson v. The Goodrich Transportation Co., 69 Wis., 5; Heinemann v. Heard et al., 62 N. Y., 448; Willett v. Rich, 142 Mass., 356; Cass v. Boston & Lowell Railroad Co., 14 All, 44.8; Polstein v. Blanner, 86 N. Y. Supp., 794; Central Bridge Corporation v. Butler, 2 Gray, 130. In the present ease the cause of action pleaded and relied upon by plaintiff, is grounded solely upon the alleged negligence of the defendant railway company. The general denial in the answer of the railway company pnt in issue every allegation of fact in the petition, necessary to establish in the plaintiff a right to recover, and the allegation of negligence being the allegation of a material and affirmative fact, the burden, at all times, was upon the plaintiff to establish such fact by a preponderance of the evidence. “During the progress of a trial it often happens that a party gives evidence tending to establish his allegation, sufficient it may be to establish it prima facie, and it is sometimes said that the burden of proof is then shifted. All that is meant by this is, that there is a necessity of evidence to answer the prima facie case or it will prevail, but the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and this burden remains throughout the trial.” Heinemann v. Heard, supra. Whether, in the case at bar, the defendant railway company was guilty of such negligence as would create a liability against it depended upon the whole of the evidence, as well that, which by force of the statute constituted a prima facie case against the defendant, as all the other evidence produced by plaintiff tending to corroborate, and by the railway company tending to rebut, the charge of negligence made against it. And if upon the whole case defendant’s negligence was not established by a preponderance of the evidence, or if upon all the evidence adduced upon that issue, the case was left in equipoise, the defendant was entitled to a verdict, and the jury should have been so charged. Instead, the jury was instructed by the trial judge, that to overcome the presumption or inference of negligence raised against it by the statute, the defendant company “was required, to satisfy you by a preponderance of the evidence that it was not negligent.” This, we think, for the reasons above stated, was clearly misleading and erroneous.

The case of Railway Company v. Erick, 51 Ohio St., 146, is not in conflict with the authorities above cited, nor inconsistent with the views herein expressed. In that case, as stated in the opinion, all the requests to charge, were based on the law as it stood prior to the enactment of section 3365-21, Revised Statutes. And while the court there determined, that the effect of this enactment was, — certain facts being made to appear, — to raise a prima facie presumption of negligence against the company, and to impose upon it the burden of answering and rebutting by proof, the presumption, or prima facie case so created. Yet, the question of the degree of evidence necessary to be produced by the defendant company, in order to meet and overcome the presumption, or prima facie case so raised, was neither discussed nor determined. We find no error in the record and judgment of the circuit court, and its judgment is therefore

Affirmed.

Shatjck, C. J., Price, Summers, Spear and Davis, JJ., concur.


author: Price, J.

text:
    Hydell v. The Toledo & Ohio Central Railway Company.

      One railway company crossing tracks and right of way of another railway company — Competent for companies to agree, when —Interlocking system — Section 2!¡1e, Revised Statutes — One railway company to maintain signal man — Through his neglect fireman of crossing company injured — Liability of first company for damages — Law of negligence — Contracts,
    1. When, one railway company desires to cross the tracks and right of way of another railway company at a common grade, it is competent for such companies to agree, as between themselves, upon the terms of crossing, including the compensation for the right to so cross, the payment of the expense of constructing and maintaining the crossing, the installing and maintaining of an interlocking system, as well as to which of the two companies shall employ, control and pay the necessary flag man or tower man to operate the interlocking system. Such a contract is not prohibited by section 247e, Revised Statutes.
    2. The T railway company, desiring to cross the tracks and right of way of the P company at a common grade, entered into a written agreement with the latter company, whereby the right to’ so cx;oss was obtained for an agreed consideration and the performance by the T company of certain covenants contained in the written agreement; — one to the effect that it would furnish the materials for and construct and put in all crossing frogs and other fixtures necessary to make the crossing with the existing tracks, and forever maintain the same at its own cost and expense; and, of the further covenant that it would “immediately upon the execution of this agreement, erect and thereafter maintain and operate at its own expense, at the place of said crossing, an interlocking system, which shall be satisfactory to the signal engineer of the first party (the P company), and under the operation of which trains of either party may be permitted, under the laws of the state, to pass over said crossing without coming to a stop * * * .” In compliance with these provisions, the T company constructed the crossing, established and thereafter maintained at the place of crossing an interlocking system, which included a tower from which to operate the signals for trains on both, roads, and also a derailing device. It employed, paid and controlled the tower man to operate said interlocking system, having the sole right to command and discharge him. While the said system was being so operated, a freight train on the road of the P company was approaching said crossing, and the crew in charge of the train received through the tower man, signals that the crossing was clear and that said train was entitled to cross without stopping, and said signals were continued until the train was so near the crossing that it could not be ■stopped before reaching the same, when the tower man suddenly changed the signals and opened the derail, thereby derailing and wrecking the engine and a number of cars composing said train, in which wreck the fireman on said ■engine was severely injured. Held: That on such facts the T company is liable in damages to the fireman for the injuries sustained by reason of the negligent acts of the tower man. Railway v. Schneider, 45 Ohio St., 678, distinguished.'
    (No. 9083
    Decided April 3, 1906.)
    Ebbok to the Circuit Court of Franklin county.
    The plaintiff in error filed, in the court of common pleas of Franklin county, his petition against the defendant in error, of which petition the following, in part, is a copy:
    “Plaintiff says that the defendant is, and was at the time hereinafter mentioned, a corporation duly organized and incorporated under the laws of the state of Ohio, and that it owned and operated a railroad known as The Toledo So Ohio Central Railway, and is now, and was at the times hereinafter mentioned, engaged in operating its said railway, and running and operating its railroad trains over the same between the city of Columbus, Ohio, and the city of Toledo, Ohio.
    “Plaintiff further says that in 1893, long prior to the grievances hereinafter complained of, the defendant, The Toledo & Ohio Central Railway Company, desiring to construct its said road across the right of way and tracks of the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, at grade, entered into a contract with the said Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, whereby said Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, in consideration of one dollar ($1.00), and of the covenants and agreements to be kept and performed on the part of the defendant contained in said agreement, granted to the defendant, The Toledo & Ohio Central Railway Company, the right to construct, maintain and operate a single or double track railroad over and across the right of way and track of said Pittsburg, Cincinnati, Chicago & St. Louis Railway Company at or near mile post No. 6, and about one mile west of Mound Station in the township of Norwich in said Franklin county, Ohio.
    “The said defendant further agreed in said contract that it would furnish the materials for, and construct and put in all the crossing frogs and other fixtures necessary to make said crossing in accordance with plans and specifications to be prescribed by the chief engineer of said Pittsburg, Cincinnati, Chicago &• St. Louis Railway Company and at its own cost and charge; forever' maintain and keep in good repair and renew from time to time when necessary all the crossing frogs and other fixtures provided in said agreement.
    “The defendant further agreed in said contract' immediately upon the execution thereof, to erect and thereafter maintain and operate at its own cost and expense at the place of said crossing, an interlocking-system which should be satisfactory to the signal engineer of the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, under the operation of which trains of either party should be permitted and should be able under the laws of the state to pass over said crossing without coming to a stop, and would extend said interlocking system so as to cover any future tracks which either party might construct over the tracks of the other party at said crossing, and would also maintain and operate said system when so extended.
    “A copy of said contract is hereto attached, marked Exhibit ‘A.’
    “Thereafter, and prior to the grievances hereinafter complained of, the defendant erected, and from that time to the happening of the grievances hereinafter complained of, maintained and operated at its own expense, for the joint use and benefit of both said Toledo & Ohio Central Railway Company and the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, at said crossing, the interlocking system as in said contract provided.
    “The said interlocking system was a device and an arrangement of the rails at and near the said crossing for the prevention of collisions thereat, by which when the rails of the track of one road were so placed and connected as to permit a car or train on that track to pass over said crossing, the rails of the tracks of the other road were disconnected so that a car or train approaching upon the track of the latter road would be derailed or thrown off the track before reaching said crossing, thereby making it impossible for a car or train on such latter track to enter upon said crossing while the tracks remained in such position, and making a collision at said crossing impossible.

      “As a part of said device, signals were placed along each of said roads at different distances from the said crossing and each side of the same, which signals, together with the movable rails above referred to, were operated by certain levers placed in a tower adjacent to the said crossing, which levers were operated in said tower by an employe of the defendant, commonly called a lever man or tower man. The point of derailment for disconnecting said tracks as heretofore described, was about three hundred feet distant from said crossing. One of the signals above described, called the ‘home signal,’ was about three hundred and fifty feet from said crossing, and about fifty feet from the said point of derailment. Another of said signals, called the ‘distant signal,’ was about fifteen hundred and fifty feet from said crossing.
    “Upon the approach of a train upon one of said roads it was part of the business or duty of said lever man or tower man to so operate the said levers that both the distant and the home signals would indicate to the engineer of the approaching train whether on the one hand said interlocking device was set for the approaching train — that is, whether the crossing was clear and the rails connected for the safe passage of such train over the said crossing without stopping, or on the other hand, whether the said device was set against said approaching train, the crossing thereby obstructed and the rails disconnected, making it impossible for said train to cross. By observing the said signals, the engineer of the approaching train was notified in the one case that he could safely proceed with his train over said crossing without stopping, or on the other hand was warned to bring his train to a stop before reaching the said crossing or the said point of derailment.
    “Plaintiff further says that on the fourth day of January, 1901, about six o’clock p. m., the defendant had control of, and operated said interlocking system at said crossing of said defendant railway with the Pittsburg, Cincinnati, Chicago & St. Louis Railway, as aforesaid. The said employe of the said defendant.company, who was then employed as lever man or tower man in said signal tower, and whose business and duty it was under his said employment to operate and manage the said levers, and thereby display the said signals, and open and close the said derailing or interlocking device for the safe passage of trains of both said companies over the said crossing, had charge of and was operating said levers and signals.
    “Plaintiff further says that on said fourth day of January, 1901, about six o’clock p. m., a freight train consisting of an engine and thirty-five loaded freight cars, owned by the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, and on the track of said company, approached the said crossing from the west, in a careful and a prudent manner, at a usual speed, upon which said train the plaintiff was then employed by the owner thereof, and was then acting in the discharge of his duties as a fireman, and the said defendant, by its said lever man or tower man displayed for said train the signal indicating that the said interlocking device was set in the manner hereinbefore set forth for the passage of said train over said crossing, without stopping; that said crossing was unobstructed and the rails of said track on which said train was approaching, properly connected therefor, and gave said train the right of way to pass over said crossing, without stopping, and directed said train to pass •over said crossing at its usual rate of speed. Thereupon, the engineer of said train continued to advance with his said train at the usual speed towards the said crossing, and when about one hundred feet from said ‘home signal,’ and one hundred and fifty feet from said point of derailment, the said defendant, by its said tower man, suddenly and without warning, and when too late to allow the engineer to check the speed of said train, and without any negligence ■on the part of the plaintiff, and while the plaintiff was in the exercise of due care in the discharge of his duties, carelessly and negligently changed said levers, and thereby opened said derailing device, and "thereby caused said train instantly to be thrown from the track upon which it was running immediately west of said crossing, and caused the same to be then and there wrecked, and the engine upon which the said plaintiff was riding in the discharge and performance of his duties, as aforesaid, was hurled and precipitated many feet into the ditch below, and the plaintiff was caught between the tender of the engine upon which he was riding and the box car which was piled upon said engine in said wreck, with his legs pinioned by a beam on said car to the tender of said engine, thereby impaling him on said beam, and holding him between said car and •engine for a period of about four hours, mashing .and lacerating his limbs, ’ ’ etc.
    Here follows a detailed account of the serious nature and extent of his injuries.
    “Plaintiff further says that he has expended $186.00 in procuring medicine and medical and surgical attendance rendered necessary by said injuries, to his damage in all in the snm of fifteen thousand dollars ($15,000.00), for which he asks judgment against the defendant. ’ ’
    ■ The railway company demurred to the petition on two grounds — (1) there is a defect of parties defendant,, in that The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company is a necessary party defendant, and that the defendant company should not be required to answer in the case; (2) that the petition does not state facts sufficient to constitute a cause of action against the defendant.
    The court overruled the demurrers, and the railway company excepted, and afterwards filed an amended answer, and subsequently an amendment to the same. The first defense, after an admission of corporate capacity and that it operates the railroad as alleged, denies each and every allegation in the petition.
    The second defense sets out at length, the organization -and operation of a relief department by the Pennsylvania Company for the use and benefit of the différent lines of railroad under its control, including The Pittsburg, Cincinnati, Chicago & St. Louis Railway, which department is known as “The Voluntary Relief Department;” also the rules of admission to said department by an employe of such railway company are plead- at some length;— also the application of the plaintiff for admission and his admission to said department and the terms thereof, and that after the injuries described in the petition, the plaintiff accepted sums of money from said department as a member thereof on account of such injuries, whereby he relinquished all right to sue said Pittsburg, Cincinnati, Chicago & St. Louis Railway Company for damages arising out of the derailing of the engine and train mentioned in the petition, and that having so relinquished his claim against the last-named company, his employer, he has no right of action against the defendant company. *
    The amendment to the amended answer states that the accident referred to in the petition, and the derailing of the train on the road of The Pitts-burg, Cincinnati, Chicago & St. Louis Railway Company, was occasioned by the carelessness and negligence of the last-named'company, in failing to employ and place a tower man in the tower at the crossing, to operate said interlocking system, so as to secure the safe passage of its trains over said crossing, etc.
    Issue was taken on the amended answer, and amendment thereto, by replies. The case was tried to a jury. At the close of the evidence, the defendant asked the court to direct a verdict in its favor, which was refused, and a substantial verdict rendered for the plaintiff.
    A motion for new trial was overruled and judgment rendered on the verdict. The case was taken on error to the circuit court, where the judgment of the court of common pleas was reversed, and the cause remanded to that court to be proceeded with according to law and the rights of the parties.
    Error is prosecuted in this court to reverse the judgment of the circuit court.

      Messrs. Nash, Lentz, Addison & Fritter, for plaintiff in error,
    cited and commented upon the following authorities:
    3 Elliott on Railroads, secs. 1113, 1117; Appeal of Cornwall, 125 Pa. St., 232; Railroad Co. v. Railroad,
      116 Ind., 60; Buchanan v. Railroad Co., 175 Ia., 393; Brady v. Railroad Co., 114 Fed. Rep., 100; Railroad Co. v. Needham, 63 Fed., 107; Railroad Co. v. Mase’s Admx., 63 Fed., 114; Lockhart v. Railroad Co., 40 Fed., 631; McMarshall v. Railroad Co., 80 Ia., 757; Smith v. Railroad Co., 19 N. Y., 127; Strader v. Railroad Co., 86 Hun, 613; Merrill v. Railroad Co., 54 Vt., 200; Hurlbut v. Railroad Co., 130 Mo., 657; Brown v. Railroad Co., 157 Mass., 399; Railway Co. v. Schneider, 45 Ohio St., 678; Railroad Co. v. Harrington, 192 Ill., 9; Swainson v. Railway Co., 3 Exq. Div., 341; Hardy v. Sheldon Co., 37 L. R. A., 33; Blake v. Ferris, 5 N. Y., 48; Colvin v. Peabody, 155 Mass., 104; 1 Thompson on Negligence, sec. 579; Railway Co. v. State, 58 Md., 372; Railroad Co. v. Craft, 69 Fed., 124; Railroad Co. v. Stoerner, 51 Fed., 518; Kastl v. Railroad Co., 114 Mich., 53; Phillips v. Railway Co., 64 Wis., 475; Sawyer v. Railroad Co., 27 Vt., 370; Zeigler v. Railroad Co., 52 Conn., 543; Railroad Co. v. Armstrong, 49 Pa., 186; Railroad Co. v. Barron, 5 Wall., 104; McElroy v. Railroad Cor., 4 Cush., 400; Central Trust Co. v. Railroad Co., 97 Fed., 239; Murray v. Railroad Co., 34 Atl. Rep., 506; Clark v. Railroad Co., 91 Ill., 43; Byrne v. Railroad Co., 61 Fed., 605; Miller v. Railway Co., 76 Ia., 655; Hilsdorf v. City of St. Louis, 45 Mo., 94; sec. 247e, Rev. Stat.

      Messrs. Boyle & Lewis and Mr. B. L. Bar gar, for defendant in error,
    cited and commented upon the following authorities:

      Railway Co. v. Schneider, 45 Ohio St., 678; Kimball v. Cushman, 103 Mass., 194; Wood v. Cobb, 13 All., 58; Taylor v. Railway Co., 45 Cal., 323; Rail

      way Co. v. Walker, 45 Ohio St., 577; Murray v. Currie, 6 Law. Rep., 22; Powell v. Construction Co., 88 Tenn. Rep., 692; Rourke v. Colliery Co., 2 Law. Rep., 208; Railway Co. v. Jones, 12 S. W. Rep., 972; Johnson v. Boston, 118 Mass., 114; Vary v. Railroad Co., 42 Ia., 246; Ewart v. Lippincott, 47 N. J., 192; Railway Co. v. Peyton, 106 Ill., 534; Byrne v. Railway Co., 61 Fed. Rep., 605; Clark v. Geer, 86 Fed., 447; Taylor v. Railroad Co., 45 Cal., 324; Manville v. Railroad Co., 11 Ohio St., 417; Railway Co. v. Cox, 55 Ohio St., 497; Seither v. Traction Co., 4 Law. Rep. (Ann.), 54.
   Price, J.

We have set ont at length in our statement of the case the important allegations of the petition filed in the court of common pleas — the allegations necessary to be considered here, because all material questions raised before and during the trial seem to turn on their sufficiency to constitute a cause of action. If the petition is good, there was evidence introduced tending to support its averments, and if this is true, the plaintiff in error should not complain of the charge of the court, for it instructed the jury to some extent as the railway company requested, and in other respects, we think the charge contains nothing to its prejudice. The grounds of the judgment of reversal by the circuit court, as shown by the judgment entry, are — (1) The said court of common pleas erred in overruling the demurrer to the petition of the plaintiff when said demurrer should have been sustained. (2) The court of common pleas erred in overruling the motion of the defendant below to direct a verdict for the defendant at the close of plaintiff’s evidence. (3) That there was error in the charge of the court to the jury. The court further found that no other errors appear in the record.

The railroad of the defendant company crosses the tracks and road bed of the Pittsburg, Cincinnati, Chicago & St. Louis Railway at grade a few miles west of the city of Columbus. The latter road had been in existence and operation many years, and. on the twenty-fourth day of July, 1893, the defendant being desirous of building its road across the road and tracks of the other company entered into negotiations with the latter, which resulted in. the execution of a written contract, under the terms of which the defendant obtained the right to so eross, without resorting to an appropriation under .the statute. The provisions of said contract which are. now material are the following: “This agreement, made this twenty-fourth day of July, 1893, between the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, as first party, and The Toledo- & Ohio Central Railway Company as second- party, witnesseth: that the first party for and .in- consideration of the sum of one dollar ($1.00) to it paid, receipt whereof is hereby acknowledged, and in further consideration of the covenants and agreements of the second party herein contained, has granted, and by these presents, does grant to the second 'party the right to construct, maintain and operate a single or double track over and across the right of way and track of the first party where the road of the second party is surveyed and located at or near mile post No. 6, about one mile west of Mound Station, etc. * * *.

. “The first party shall have the right at any and all times hereafter to lay down, maintain and,operate over the track or tracks of the second -party, herein authorized to be laid down; and when it shall so elect to lay down any such track, or tracks, the second party will, upon notice of such election, provide the materials for and properly construct all the crossings with such additional track or tracks according to the plans or specifications which the first party may prescribe, etc.

“The second party agrees that it will furnish the materials for and construct and put in all crossing-frogs and other fixtures necessary to make the crossing with the existing track of the first party at the place aforesaid, strictly in accordance with such plans and specifications as shall be prescribed by the chief engineer of the first party.

“ The second party agrees, immediately upon the execution of this agreement, to erect and thereafter maintain and operate at its own expense, at the place of said crossing an interlocking system which shall be satisfactory to the signal engineer of the first party, and under the operation of which trains of either party may be permitted, under the laws of the state, to pass over said crossing without coming to a stop, and shall extend said interlocking system so as to cover any future tracks which either party may construct over the tracks of the other party at said crossing, and shall also maintain and operate said system when so extended.

“The second party further agrees that it will, at its own expense, employ competent watchmen to guard the crossing during the entire period said interlocking system is in process of construction.

' “In the passage of the respective trains of the parties hereto over said crossing, trains of the first party, both passenger and freight, approaching the crossing in either direction, shall have precedence over the trains of the other party. In testimony, etc.

“The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company,
'“By James McCrea, Vice President. “Attest: S. B. Ligget, Secretary.
“The Toledo & Ohio Central Railway Company,
“By Stevenson Burke, President. “Attest: L. D. Kelley, Secretary.”

Under the terms of this contract the parties thereto proceeded, and the defendant company performed its part of the obligations, furnished the necessary materials and made the crossing, including all crossing-frogs in a manner apparently satisfactory to the other company, and likewise at its own expense, erected and thereafter maintained and operated at the place of crossing a satisfactory interlocking system, under the operation of which trains of either party were permitted to pass over without coming to a stop. As a part of this interlocking system, a tower was erected in which levers were established by which certain rails of each road were manipulated and from- which tower various signals on each road were controlled as the approach of trains on either road required.

It is not in dispute that the defendant company, in pursuance of the terms of the above contract, furnished the entire’ system, including the tower house, and employed the tower man or operators in the tower, one for the day season and another for the night season. Nor is it disputed that the defendant company paid these men for their services, and had full and entire control over them, subject to the right of inspection of the signals and the signal appliances, and perhaps, also, the right of inspection of other parts of the interlocking-system.

The contract was not unreasonable, but it constituted an amicable arrangement whereby the new road could cross the old one at a common grade without resort to appropriation by law, and it is a legal contract, in that it is permitted by the statute-section 247e, Revised' Statutes. A part of the section reads: “In case where the tracks of two or more railroads, or the tracks of a railroad and an electric railroad, cross each other at common grade in this state, any company owning any one of such tracks, whose managers may desire to unite with others in protecting such crossing with interlocking or other safety devices, and shall be unable to agree with-such others on the matter, may file with said commissioner (of railroads) a petition stating the facts of the situation and asking said commissioner to order such crossing to he protected by interlocking- or other safety devices * *

. The section provides for notice and a hearing on the petition, the making and recording of an order prescribing the kind of device to he used and the proportion of the cost of constructing of such plant and the expense of maintaining and operating the same, which each of the companies shall pay.

We think it was competent for the two companies, parties to the contract before us, to agree upon what might he compelled by the commissioner of railroads under the above section, and having agreed upon the terms and mode of crossing, they were also competent to. agree that the new road —defendant company — should bear all the expense of putting in the crossing and employ and pay the necessary servants or agents to operate the interlocking system. The contract is therefore legal and binding as between the contracting parties, however it may or may not affect the public in general.

It is no answer to this proposition to say, as has been said by counsel for' the defendant company, that neither the statute nor common law allows either of the companies to shift to the other its responsibility for its negligence; that each is still liable to the public for its negligence causing an injury. This may be true. But we are not called upon to decide that question in this case. But we are quite confident that as between the parties to the contract involved, it was competent for them to' agree that the new road, seeking the crossing, of the older at common grade, should furnish the interlocking system — employ and pay its servants to operate the same for the benefit and convenience of both. Such is the purport of the written agreement, and it has been so understood and acted upon by both parties, at least up to the time of the injuries sustained by the plaintiff below.

It is presented in argument for the defendant company, that it should be presumed that the other company, — (The Pittsburg, Cincinnati, Chicago & St. Louis) on an estimate of its share of the costs of the construction and maintenance of the interlocking system, gave the Toledo & Ohio Central Railway Company the right to cross at grade in consideration, in part at least, that the latter company, at its own cost and expense, would install the interlocking system and always maintain it, and if that is so, then the older company, in effect, is still paying a share of the expense of the crossing, including the tower man.

It is attempted to establish by the above course of reasoning, the premises for the legal claim that the tower man was in the joint employment of the two companies; — that he was acting for both, and at the time of the injuries he was handling the device for the Pittsburg, Cincinnati, Chicago & St. Louis Company. Then the further claim follows on such premises, that the injured fireman of the latter company was a fellow servant of the tower man and therefore cannot recover of either company.

But there is no foundation for any alleged presumption, or any such assumed premises, and hence the legal deductions therefrom must fall.

As to the expense of putting in and keeping up the crossing and the maintenance of the interlocking system, the two companies committed their negotiations agreed upon to writing. Bearing upon this subject the contract reads: “That the first party for and in consideration of the sum of one dollar to it paid * * * an(i in further consideration of the covenants and agreements of the second party herein contained, has granted and by these presents does grant to the second party the right to construct, maintain and operate a single or double track over and across the right of way and track of the first party *

One of the covenants mentioned in the contract is that “the second party agrees immediately upon the execution of this agreement, to erect, and thereafter maintain and operate at its own expense, at the place of said crossing, an interlocking system, which shall be satisfactory to the signal engineer of the first party * *

The theory of joint employment so- adroitly advanced must be excluded because of the clear terms of the contract. This view disposes of the entire second defense set up in the amended answer. It is there set out that the plaintiff below, — the injured fireman on the freight train which was derailed by the negligent act of the tower man — was a member of “The Voluntary Relief Department” of the Pennsylvania Company, at the time he was injured, and that he accepted the benefits of membership in the way of considerable sums of money in aid of his recovery, upon the condition stipulated in the terms of membership, that he thereby relinquished all claims for damages against The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, and therefore has no right of action against The Toledo & Ohio Central Railway Company.

The only way to make that defense available here, is to assume that the tower man was in the joint employment of the two companies, and that if the fireman was injured by the negligence of the tower man, the two companies were joint tort feasors, and accepting payments or benefits from and thereby releasing from damages one tort feasor — The Pitts-burg, Cincinnati, Chicago & St. Louis Railway Company, he released the other tort feasor, The Toledo & Ohio Central Company. Having found there was no joint employment, the whole theory of the second defense fails.

The' defendant company relies on Railway Company v. Schneider, 45 Ohio St., 678, which it claims rules the present case, and it has .been said by counsel that it influenced the judgment of the circuit court.

We therefore examine'the facts of that case. The action in the common pleas was against The Cleveland, Columbus, Cincinnati & Indianapolis Railway Company for causing the death of the husband of the administratrix, plaintiff in the action, at Freeman street, Cincinnati. The questions which are said to be similar to those before us now, arose out of the charge of the trial court, and its refusal to charge as requested by the defendant. The defendant obtained from The Cincinnati, Hamilton & Dayton Railway Company the right to use the tracks of the latter company under the seventh section of a contract executed by the two companies, which is: The business of the said two lines of railroad shall be conducted so as to preserve the existing relations of each with eastern and western connecting roads, and to develop to the fullest extent'the business resources of each line; all passenger trains shall be run from the Cincinnati depot, party of the first part, and for the use of the same, with the tracks, side tracks thereto, and yards for passenger ears west of Millcreek, and for the cost of switching, the. party of the first part shall be allowed and paid by the party of the second part, in excess of the amount to which each shall be entitled out of the joint earnings, annually, the sum of five thousand dollars, payable monthly.” No other part of the contract appeared in the record of the case. The court found, as appears on page 692 of the opinion : “ That there was evidence tending to show that the gate at the Freeman street crossing was put up by the former company, (Cincinnati, Hamilton & Dayton) and that the gateman was employed by that company, bnt tbe engines and trains of tbe latter company were rnn and controlled by its own servants and employes, and that the engine which collided with the wagon of the deceased when he was killed, was so run and controlled; and as the negligence charged against the defendant by the plaintiff in her petition consisted in carelessly running the locomotive and managing the crossing, it became a material question whether the defendant could be made responsible for any negligence of the gateman while it was using and operating the railroad. The whole of the agreement between the two companies is not produced, and it was impossible for the court from the fragment that was introduced in evidence to construe it, or properly determine its effect on the relation really existing between the companies. From that part of the contract contained in the record, it appears that each company had the right to the equal and joint use of the tracks and depot, and the defendant was to pay the other company for the use of the same, with the side tracks and yard, and for the cost of switching, five thousand dollars per year in excess of the amount to which it should be entitled out of the joint earnings. What the arrangement was in regard to the servants or employes of the two companies is not shown. Whether they were to be paid out of the joint earnings, and be under the joint control of the two companies, or otherwise, does not appear from that part of the agreement in the record, and the .evidence on the subject consisted of the usage and conduct of the companies.”

The court then approved of the charge of the trial court, leaving it to the jury to determine as a question of fact, whether the defendant in that case was using the tracks of the other company under an agreement with, it, and whether the gatekeeper and other employes of that company were, by reason of the agreement, aiding to run the locomotive of the defendant which caused the injury. And the court further added:' “The fact that the gateman was an employe of the Cincinnati, Hamilton & Dayton Railroad Company, and was under its control, and so operated the gates while the defendant’s trains were passing, does not exclude the idea that by virtue of the agreement between the two companies, he may also have been equally under the control of the defendant.”

We have quoted thus freely from the above case to show that it did not involve the question we have here, and it seems that the opinion was carefully worded to exclude it. There is nothing in the decision that tends to a condemnation of agreements like the one before us. It must also be remembered, that that was a case between the offending company and a third party — a member of the general public, while we are considering whether the contract is good between the companies executing it so as to be respected and relied upon by the employes of each.

That case is so unlike this in all important respects, that it does not rule our judgment.

The defendant cites also B. & O. Ry. Co. v. Walker, 45 Ohio St., 577, and its learned counsel say our exact question was passed on in that case. We cannot concur in that conclusion. The answer of the defendant company in that case set- up an agreement with the suing company, the terms of which placed the responsibility for the crossing expenses on the plaintiff. The reply took issue on the answer. The answer being affirmative in character and challenged by reply, the burden was upon the defendant company to establish the contract alleged. On page 584, in the opinion, it is stated, that no evidence of the agreement was offered, and the case was submitted on the pleadings, the answer availing nothing. As there said by the court: “Practically, therefore, the case was submitted to the court as upon default or demurrer to the petition. ’ ’

Indeed, all reasonable inferences to be drawn from the doctrine of that case are against the defendant in error in the case at bar. We have not space to answer in detail other authorities cited for the defendant in error. Our conclusions are fully supported by many cases cited in the brief for plaintiff in error.

We have no doubt the petition states a good cause of action and a demurrer thereto was properly overruled. The trial court was right in refusing to direct a verdict for defendant at the close of the plaintiff’s evidence.

The evidence tends to prove that as the freight train of The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, on which Hydell was fireman, was approaching the crossing from the west, the tower man displayed signals indicating that the crossing was clear for it to pass over, and they remained so until the engine was about two hundred feet from the crossing, when, through bewilderment or from some other cause, he threw the derail so that the engine and several cars went from the track into the ditch and the fireman was severely injured.

There was evidence introduced tending to prove all the material allegations of the petition.

There are some inconsistencies of statement in the charge of the court, but they were not detrimental to the cause of the defendant, and whatever else of error that appears in the charge was invited by its counsel.

The judgment of the circuit court is reversed and' that of the common pleas affirmed.

Shauck, C. J., Spear and Davis, JJ., concur.

Summers, J., not sitting.