author: WiuuAMS, J.

text:
    Doan et al. v. Biteley.

      Executors and Administrators — Proceedings by, to sell lands .of decedent — Jurisdiction of probate court in — Practice in such cases.

    1. The proceeding of an executor or administrator to sell the real estate of the deceased, to pay the debts and costs of administering his estate, whether, prosecuted in the court of common pleas, or the probate court, is a civil action, in -which any person may Be made a defendant, who has or claims an interest in the land, or who is a necessary party to a complete determination of any question involved in the action.
    2. The probate court has jurisdiction to try any question of fact arising in such action therein prosecuted, or afford the parties a trial by jury when the nature of the issues entitle them to a jury trial, or render it appropriate.
    3. Proper practice, in such cases, requires that all persons claiming an interest in, or lien on the land, he brought before the court, and all questions affecting the title adjudicated and settled, in . order that purchasers may buy with safety, and the property bring its fair value.
    (Decided November 1, 1892.)
    ERROR to the Circuit Court of Lorain county.
    Walter S. Biteley, as administrator with'the will annexed, of the estate of John M. Pomeroy, deceased, on the 24th day of February, 1888, commenced an action in the probate court of Lorain county, by which he had been appointed administrator, for the sale of certain specifically described real estate, of which, as was alleged, Pomeroy died seized, to pay the debts of the estate, and a legacy of three hundred dollars bequeathed by his will to Nancy P. Biteley. The petition was in the usual form, containing all the allegations required by the statute providing for the sale by an administrator of the real property of his decedent, to pay debts. The heirs having the next estate; of inheritance, were made parties defendant; and so were Thomas C. Doan,'and his brothers and sisters, children and heirs at law of Rebecca Doan, deceased, who, it is alleged in the petition, claimed an interest in the land, adverse to that of the administrator. The petition averred, that in fact they had no interest in the premises, and asked that their -claim be determined. The heirs of Rebecca Doan answered jointly, that, at the time of her death, she was the owner,- in fee simple, of the land described in the petition; that she derived her title from a source independent of Pomeroy, and held adversely to him; and that they, as heirs of Rebecca Doan, were the owners, in fee simple, of the land. The answer also denied, that Pomeroy was ever seized of the land, and averred, that the probate court bad no jurisdiction to bear and determine the issues thus made. The administrator replied, admitting that Rebecca Doan, at one time was the owner of the premises in question, but, averring, that prior to her death she had conveyed the same- to one Hiram Abbott, who conveyed to Pomeroy. At the hearing in the probate court, the Doan heirs moved to dismiss the action, so far as it related to them, on the ground that the court was without jurisdiction to try the issues raised by their answer; which motion, the court overruled, and they excepted. They also objected to the introduction of any testimony upon the issues joined between them and the administrator, for the same reason. The court overruled their objections, admitted the evidence, found the issues for the administrator, and ordered the sale of the property. A motion for a new trial, based upon the ground that the court had no jurisdiction to try the cause, or render the judgment, was overruled, and exceptions taken. The court of common pleas of Eorain county, on error prosecuted there by the Doan heirs, reversed the judgment of the probate court, and dismissed the petition of the administrator, who thereupon prosecuted error to the circuit court, where the judgment of the common pleas was reversed, and that of the probate court affirmed. It is sought by the proceeding in error here, to obtain the reversal of the judgment of the curcuit court.

      Clayton W. Everett, for plaintiff in error.
    I. The petition of the administrator, in effect, contains, two causes of action. The first is to obtain authority to sell lands and is in the ordinary form for said purpose; the second is to determine the title of the defendants, Doans, and in substance is an action to quiet the title.
    II. An administrator has no authority to litigate the title of the decedent’s lands.
    By our statutes an administrator is authorized to litigate, certain questions pertaining to his decedent’s lands, as where lands have been fraudulently conveyed or he holds an interest by contract, as found in sections 6139 and 6136, of the Revised Statutes; but by no provision of statute is. the administrator authorized' to litigate generally the title of his decedent’s lands.
    III. The plaintiff must be in possession of lands before he can file a bill in equity to determine the adverse claim of a third party. See section 5779, of Revised Statutes.
    IV. The Probate Court in ordering lands sold by administrators to pay debts, acts as a court of special and limited jurisdiction. The sections of the statutes authorizing these proceedings are 6136 to 6145 inclusive. Gilliland v. Sellers, 2 Ohio St., 228; Spoors v. Coen, 44 Ohio St., 498; Davis v. Davis, 11 Ohio St., 386; Holtsr. Hemphill, 3 Ohio, 240; Hubbard v. Clark, 8 Ohio, 382.

      E. G. Johnson and W. A. Bedortha, for defendant in error,
    We claim that under the provisions of the Constitution the probate court is capable of receiving the jurisdiction it exercised in this case. Article 4, section 7, of the Constitution; Shoyer v. Richmond, 16 Ohio St., 455; Article 4, section 8, of the Constitution.
    We claim that the legislature has, by express statutory enactment, conferred the jurisdiction upon the probate court claimed for it in the case at bar. Sections 524, 525, 537, 4971, 6136, 6137, Revised Statutes; Morgan v. Spangler, 20 Ohio St., 55; Penn v. Heywood, 14 Ohio, St., 306; Chinn's;. Trustees, 32 Ohio St., 236.
    Section 7411 Revised Statutes expressly extends the provisions of law governing civil proceedings in the court of common pleas to proceedings of the probate court. Section 6141 prescribes what a petition shall contain.
    Section 6142, Revised Statutes, prescribes who shall be made parties. Section 5913 provides for ordering other parties to be brought in. Section 6139 provides that all other rights and interests in lands, tenements and heredita-ments, may be sold. Section 6145 provides that the probate court shall have full power to determine the equities between parties. Borntrceger v. Borntrceger, 3 Bulletin 891; 2 Yaple Code Practice 1284. Section 6143 provides that service in such action shall be made in the same manner as in any other civil action.
    Before the law had assumed its present shape, in Hallo-way v. Stuart, 19 Ohio St., 472, our supreme court held that the administration act of 1840, and the amendatory act of April 12,1858 (S. & C. 652), gave a full adversary character to the petition of the administrator for authority to sell lands for the payment of debts. It was no longer a proceeding in rem. Wood v. Butler, 23 Ohio St., 520.
    If it is necessary to go outside of Ohio for authority the court will find it, Gavin v. Gavin, 41 Ind., 559; Arnold v.. Donaldson, 46 Ohio St., 77; Section 6411 Revised Statutes.
    By numerous decisions the probate court has been recognized as a court of record competent to determine all questions that necessarily arise between the parties brought before it. Trimble v. Koch, 26 Ohio St., 434; 4 Ohio St., 408; Bustards. Dabney, 4 Ohio St., 68; Stone v. Strong, 42 Ohio St., 53; Spoors v. Coen, 44 Ohio St., 501,
    How then is the question of ownership of land by decedent to be settled? We have seen that a creditor cannot bring an action for that purpose. It is true the heir to-whom it would descend might test' the question, but the heir has no interest in common with creditors. It would be mere nonsense to claim that before a creditor of a decedent could have resort to decedent’s real estate to pay his debts he must wait until the heir should come into court and establish the fact that his ancestor was the owner of such land. Lindemann v. Ingham, 36 Ohio St., 12; Lawrence-Ry. Co. v. O'Hara, 26 Raw Bulletin, 25; Sheldon v. Newton,. 3 Ohio St., 494.
   WiuuAMS, J.

The general question presented by the record, is whether the probate court had jurisdiction to try and determine the issues joined between the plaintiffs in error and the administrator of Pomeroy’s estate. The particular objections here urged to the jurisdiction of that court, by the plaintiffs in error, are (1), that they could not properly be made parties to the action of the administrator to-sell the lands of his decedent, it appearing that they claimed title to the land adversely to him; (2), that no power was conferred on that court to try the question of title raised by the pleadings; and (3), that upon the issues, they had the constitutional right of a trial by jury, which the probate court was without the legal capacity to accord them.

Was there any authority for making the plaintiffs in error parties to the action of the administrator, in the probate court? In support of the contention that there was not, it is urged, that the statute, (section 6142 of the Revised Statutes) which provides who shall be made parties to such actions, namely: “the widow of the deceased, and the heirs, devisees, or persons having the next estate of inheritance from the deceased, and all mortgagees and other lien-holders, whether by judgment or otherwise, of any of the lands sought to be sold, and all trustees holding the legal title thereto or to any part thereof,” was intended to confine the proceeding of the administrator, to an action against the persons designated, and exclude the right to make any others, parties defendant.

It is undoubtedly true that whatever powers administrators possess with respect to the sale of the decedent’s real property, are derived from statutory enactment; and the mode of procedure for their execution, is also regulated by statute. The object in requiring the persons specified in the section mentioned, to be made parties, no doubt was to have their rights adjudicated in the action, so that the property might be sold divested of their interest in, or lien upon it, and the administrator enabled to convey a good title to the purchaser. Such persons are nécessary parties, without whom the action could not properly proceed to judgment; but the section does not preclude the making of other persons parties, if other statutory provisions permit it to be done. Section 6137, of the Revised Statutes, makes it necessary, in order to obtain authority to sell the real estate of the deceased, that “the executor or administrator shall commence a civil action in the probate court or the court of common pleas,” of the proper county: and section 6143, provides that “Service, either actual or constructive, shall be made in the same manner as in other civil actions; * * * and all proceedings in the action in either court shall be the same as in other civil actions, except as otherwise herein provided.” So that, under present legislation, the proceeding of an executor or administrator to sell the lands of the deceased, to pay the debts and costs of administering his estate, whether prosecuted in the court of common pleas, or the probate court, is the civil action of the code, with all its incidents, one of which is, that “Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.” Revised Statutes, section 5006. This legislation was in force when the action below was commenced, and authorized the administrator to make the plaintiffs in error parties thereto; and the jurisdiction of the probate court over them, and the subject of the action, was as ample as could have been exercised by the court of common pleas, had the action been brought originally in that court. The policy of our legislation has long been opposed to the necessity of a resort to different jurisdictions and multiplicity of actions, in order to obtain the full and final relief to which parties may be entitled, and in favor of clothing tribunals once acquiring control of the subject-matter of a controversy, and of the parties, with jurisdiction, if capable of exercising it, to determine the ultimate rights of the parties, and administer to them their complete remedy. The policy is a commendable one, with which the statute making actions like that under consideration, civil actions, and giving the probate court co-ordinate jurisdiction with the court of common pleas, is in harmony.

Another objection urged tp the jurisdiction of the probate court, is that the statute has conferred ho authority upon it to try questions like those made by the pleadings of the parties in the action below. Jurisdiction is conferred, by the constitution, on the probate courts in probate and testamentary matters, and “for the sale of land by executors, administrators and guardians;” and they are made capable of receiving such other jurisdiction as may be provided by law. Constitution, section 8, article 4. The mode of exercising their jurisdiction is regulated by statute, whose provisions, it is conceded,' they are required to observe. The powers of the court include those expressly granted, and such as are necessary to carry them into effect. In Saylor v. Simpson, 45 Ohio St. 141, it was held, that a statute, which provides thaj: the probate court shall “order the payment of all incumbrances and' liens upon any of the property sold, ” by an assignee in insolvency, “ according to their priority, ” clothed the court with authority to decide upon the validity of the liens, and the order of priority in which they should be paid. The statute involved in the case of McLaughlin v. McLaughlin, 4 Ohio St. 508, (the Act of March 14, 1853) gave the probate court jurisdiction “to enforce the payment of the debts, and legacies of deceased persons, and the distribution of the estates of intestates.” Section 28 of the act provided that “all questions, except those arising in criminal actions and proceedings, unless otherwise provided by law, shall be determined by the probate judge, unless in his discretion he shall order the same to be tried by a jury, or referred as provided” in the code of civil procedure. This statute, it was held, authorized the probate court to determine every disputed question of fact which might be necessary in the ascertainment of the amount justly due from the administrator to the dis-tributees.

The statutes applicable to the question before us, provide that when an executor or administrator shall ascertain that the personal estate is insufficient to pay the debts of the deceased, and the allowance to tbe widow and children, and charges of administering the estate, he shall apply to the probate court or court of common pleas, for authority to sell the real estate of the deceased. The application is required to be by- petition, which must set forth the amount of the debts, and charges of administration as nearly as they can be ascertained, the value of the personal effects, and a description of the real estate. “If the court is satisfied that it is necessary to sell real estate of the deceased to pay bis debts, it shall order the real estate, or so much thereof as may be necessary for the payment of the debts, to be sold by the executor or administrator, upon deferred payments, not exceeding two years, with interest.” Section 6147, Revised Statutes. The court is given full power to determine the equities between the parties, and the priorities of liens of the several lien-holders, and to order the distribution of the money arising from the sale according to the equities and priorities as found by the court. Section 6145, Revised Statutes. And section 6400, of the Revised Statutes, is the same, in all respects, as section 28, of the act of March 14, 1853, which was before the court in the case of McLaughlin v. McLaughlin, supra. Our statutes are broad enough, we think, to authorize the probate court to determine all questions of fact and law arising in actions brought before it, by executors and administrators to sell real estate for the payment of the debts of the estate they represent. The power to order the real estate of the deceased to be sold, by necessar3>- implication includes the power to decide whether the land, the sale of which is sought in the action, was the property of the deceased. As was said by the Supreme Court of Indiana, in a case governed by statutory provisions not unlike our own, “the power to make the order, carries with it the power to determine the title.” Gavin v. Graydon, 41 Ind. 562. There was, therefore, no defect in the jurisdiction of the probate court, in the case we are considering, unless the constitution entitled the parties to a mode of .trial which that court was incapable of affording them.

The claim of the plaintiffs in error on that subject is, that the action of Pomeroy’s administrator against them, was one to recover the title to real property, to accomplish which, prior to the code of civil procedure, the action of ejectment was the appropriate remedy, in which, the right of trial by jury was secured at the time of the adoption of the present constitution, and consequently, is preserved in actions of that nature, by section 5, of article 1, of that instrument, which declares that “The right of trial by jury shall be inviolate.”

Conceding this to be so, in order to make the objection complete, so as to defeat the jurisdiction of the probate court, it must appear that the parties could not have such a trial in the action prosecuted before it. The record does not disclose that any demand was made for a jury trial, but, if there were no means by which it could have been obtained, the failure to make the demand, would not affect the question. We are satisfied, however, that ample power is vested in the courts of probate to award the parties a trial by jury in such cases, when the nature of the issues demands it. This power may be found in section 6143 of the Revised Statutes, already referred to, by which it is required, that the “proceedings in the action shall be the same as in other civil actions, except as otherwise herein provided. ” Proper proceedings in a civil action comprehend a trial by jury, whenever the issues are of such a nature as to entitle the parties to it; and nothing is found in section 6143, or in the context, which otherwise provides. Sections 537, 539, 6400, and 6411, of the Revised Statutes, together, confer a like power on the probate court. Railroad Company v. O'Harra, 48 Ohio St., 343.

It is further contended, that whatever right Pomeroy had in the land in question, descended upon his death, to his heirs; and, that his administrator acquired no right to the land, nor had any interest in the action' to recover it; the heirs being, it is said, the real parties in interest, and alone entitled to maintain the action. While, upon the death of the ancestor, his real property passes to the heir at law, or to the devisee in accordance with the provisions of the will, it does so, charged with the payment of his debts, if it becomes necessary to resort to it for that purpose. The debts are a lien upon the land, and the heir takes cum onere. Faran Adm’r v. Robinson, 17 Ohio St., 242. The executor or administrator, who represents the creditors, is charged with the duty, as we have seen, when the personal assets prove inadequate for the payment of the debts, of enforcing the sale of the realty, so far as it is necessary to their payment. When there are no debts or obligations to be paid, he cannot maintain an action merely to recover lands for the benefit of the widow and heirs. Such a proceeding, it was said, in. Wood Adm’r v. Butler et al. 23 Ohio St., 520, would be an abuse of the statute. The case before - us is-not of that character. There were bona fide debts, and no personal effects with which to pay them; and the administrator, it appears, prosecuted his action in good faith, in the due execution of his trust. In such a case, it is desirable that all parties claiming an interest in, or lien on the land, be brought before the court, and all questions affecting the title adjudicated and settled, in order that purchasers may buy with safety, and the property bring its fair value. Otherwise, the sale must result in a sacrifice of' the land on account of the uncertainty of the title, or a loss to confiding purchasers, if it prove defective, and it may be both. We find no ground for reversing the judgment of the circuit court, and it is accordingly

Affirmed.


source: Caselaw Access Project

author: MiNSHarr, J.

license: Public Domain

text:
    Coal & Car Co. v. Norman.

      Negligence — Necessary averments by servant, in action against mas-terror damages for.

    In an action by a servant against his master for an injury resulting from the negligence of the latter in furnishing appliances, or in caring for the premises where the work is to be done, the plaintiff must aver want of knowledge on his part of the defects causing the injury; or that, having such knowledge, he informed the master, and continued in his employment upon a promise, express or implied, to remedy the defects; an averment that the injury occured without fault on his part is not sufficient.
    (Decided Nov. 1, 1892.)
    Error to the Circuit Court of Athens county.
    The plaintiff below, as administratrix of Henry Norman, deceased, brought suit against the defendant, The Chicago and Ohio Coal and Car Company, to recover damages for negligently causing the death of the deceased, while in its employment as a servant on the 8tb day of March, 1890. A demurrer to the petition having been overruled, the cause was tried to a jury upon issues of fact made by the answer of the defendant. The trial resulted -in a verdict for the plaintiff, on which judgment was entered in her favor, aftei the overruling of a motion of the defendant for a new trial. The judgment was affirmed on error in the circuit court. The object of this proceeding is to reverse the judgment of both the lower courts, on the ground that there was error in overruling the demurrer to the petition. The petition, omitting the style, reads as follows:

      " The plaintiff states that on the 22nd day of January, 1891, letters of administration on the estate of Henry Norman theretofore deceased, intestate, were, by the probate court of Athens county, Ohio, duly issued to the plaintiff, who thereupon duly qualified, and entered upon the duties of the same office, and that she is now acting in that capacity; that said defendant, The Chicago and Ohio Coal and Car Company, is a corporation duly created and organized under and by virtue of the laws of the state of Illinois and doing business in York township, in said Athens county, and that prior to and on the 8th day of March, 1890, said defendant was the owner of and operating a eoal mine at or near Glen Ebon', in said township. In operating said mine defendant maintained a main line railroad track for bank cars on an incline or slope from its coal hopper situated about 150 feet from the mouth or opening of the main entry of said mine on the outside thereof, to the interior of said mine, over which track, by means of bank cars, the coal from said main entry to said hopper, and said cars were drawn from within said main entry of said mine, up said incline on said track to said hopper by means of a rope attached to said cars and wound upon a drum or cylinder at said hopper by steam power controlled by an engineer. At or near the mouth or opening of said main entry of said mine, defendant maintained a railroad switch which connected said main line trackiwith a railroad side track for the use of its said cars, which extended from said switch into the main entry of said mine.

      “Said bank cars, when emptied of coal at said hopper,, were returned by their own gravity down said incline on said main line, across said switch onto said side track within said entry. Said entry, in which said side track was maintained, and from which the said coal had been mined and removed, was of unusual width between its natural supports on either side thereof along, said side track within said mine, but what the width of said entry was plaintiff cannot state with more certainty for want of information, and the roof of said entry, which consisted of slate, stone and other mineral substances, in consequence of said unusual width, was rendered unusually dangerous and liable to fall, and thereby kill or injure persons who were required to enter said entry and pass along the line of said side track within said mine in the discharge of their duties as servants of said defendant, in and about operating said mine, unless said roof' was supported by pillars and caps sufficient in number and securely and skillfully placed, or other safe mechanical appliances so as to furnish proper support to the same. Said roof in said entry along the line of said side track was also-unusually faulty and defective in not being firm, solid and strong, and the material composing the same not adhering well together, and for that reason was extraordinarily dangerous and liable to fall and kill or injure such persons, unless the same was supported in the manner and by the means above stated. Said empty bank cars in descending from said hopper into said entry at said switch, and along said side track frequently did and were always liable to leave or jump the track, and when off the track were liable tO' strike, jar or knock down any pillars or supports unskillfully and negligently placed and secured in said entry along or-near the line of said side track to support said roof, and thereby cause said roof or some part thereof to fall. All of the foregoing facts were well known to the defendant long prior to and on said 8th day of March, 1890, yet on said date, said roof in said entry, along said side track, was so carelessly, negligently and unskillfully supported by defendant by using posts or pillars too few in number for the safe support of said roof, and thereby rendered the same unusually dangerous, and liable to fall. And said defendant had prior to said date, so negligently, carelessly and unskillfully and improperly placed and secured said posts or pillars along and near said side track, and. so maintained them to said date that said empty cars, if they left or jumped the track, at said switch, or along said side track, were liable to strike, jar and knock down said pillars, and thereby cause said roof or some part thereof to fall. On said 8th day of March, 1890, said Henry Norman was employed by the defendant as a servant at said mine in the capacity of “rope rider,” and among other things it was his duty, in said employment, to descend from said hopper on said empty cars down said main line over said switch on to said side track, under said roof within said mine and to notify said defendant, if said cars left or jumped the track or if any substance intervened to prevent or interfere with said cars being hauled backward or forward over said main line or switch in the manner and by the means above stated. While thus engaged in the discharge of his said duties on said last named date, while in said entry, and without fault on his part, a part of said roof fell upon the said Henry Norman, and he was thereby killed.
    “The plaintiff says, said roof'fell upon said Norman either by reason of said careless, negligent and unskillful manner in supporting the same by the defendant, by pillars or posts too few in number, and improperly and unskillfully placed, or by said empty cars leaving or jumping the track at said switch or along said side track and striking said posts so carelessly, negligently, unskillfully and improperly placed and secured, as before stated, or from both of said causes combined, but for want of information plaintiff cannot state with more certainty which one of said causes or whether both combined in causing said roof to fall.
    “Said Henry Norman left Adelia Norman his widow, and Blanche Norman aged 9, Jessie Norman aged 8, James Norman,aged 6, and Minnie Norman aged 1, his children surviving him, who were dependent on him for support, who have been damaged by his 'wrongful death, caused by the carelessness and negligence of the defendant as above set forth, in the sum of $10,000 00, for which sum plaintiff asks a judgment against said defendant.
    “ ChARRES ToWNSRND,
    Wood & Wood,

      Attorneys for plaintiff.”

      L. M. Jewett, and Monk & Elliott, for plaintiff in error.
    I, Ignorance of danger on part of deceased, is an essential element of the cause of action which must be averred in petition, or facts stated which show an excuse for remaining in the service with knowledge of the risk. Hayden v, Sniithfield Manufacturing Co., 29 Conn., 548; Buzzel v. Laconia Ma7iufacturing Co„ 48 Me., 121; Gilbei'tv. Guild, 144 Mass., 601; Beach on Contributory Negligence, 350, 369; Wood on Master and Servant, §414; Thompson on Negligence, page 1050, sec. 47.
    II. The averment that the deceased was without fault, is not equivalent to an averment of want of knowledge on •his part, or of facts creating an exception to the general rule exempting a master from liability. Bevans on Negligence, secs. 336 and 337; Beach on Contributory Negligence, sec. 17; see also page 370; Bogenschultz v. Smith, 84 Ky., 330; Railroad Company v. Sanford, 117 Ind., 265 Brazil Block Coal Co. v. Young, 117 Ind., 520; Railroad Company v. Corps, 124 Ind., 427; Hayden v. Sndthñeld Manufacturing Co., 29 Conn., 548; Railroad Co. v. Doyle, 49 Tex., 190; Nason v. West, 79 Me., 253; Allen v. The Augtista Factory,82 Ga., 76; Norfolk & Western R. R. Co. v. Jackson, 85 Va., 489; Reardon v. Consolidated Coal Co., 5 Monthly E. Bui., 92; Abbott’s N. Y. Digest, vol. 10, title “Pleading,” sec. 937; 51 N. Y. Superior Court Rep., 134; Stephenson v. Duncombe, 73 Wis., 404; Williams v. Clough, 3 Hurls. & Nor. 258; Ch'ijfiths v. London and St. Catherine's Docks Company, E. R. 13 Q. B. D. 259; McGatrick v. Wason, 4 Ohio St., 566; R. R. Co. v. Barber, 5 Ohio St., 541; Street Railroad Company v. Nelthenius, 40 Ohio St., 376; Railroad Co. v. Shannon, 4 O. Circuit Court Rep.; 449; Manufacturing Co. v. Morrisey, 40 Ohio St., 148; 1 Bates’ Pleading- and Practice, 562; 2 Yaple, page 1177.

      III. The facts alleged raise ah implication of knowledge ■on the part of Norman, and hence the petition is fatally .defective in not showing an excuse for remaining in the .service after such knowledge was acquired.

      Wood & Wood and Chas. Townsend, for defendant in error.
    The several general propositions of law advanced by the plaintiff are not seriously controverted, and do not cast much light on the question involved, which comprehends a single proposition, with which, alone, this cause is concerned. It is, is the allegations contained in the original petition, under all the facts therein alleged, sufficient, which declares the plaintiff “was without fault on his part.” It will be seen by this petition that the fact, necessarily averred in the original petition, suggests the implication of negligence on the part- of the plaintiff. Street Railroad Co. v. Neltherdus, 40 Ohio St,, 376.
    The defendant below was charged with knowingly keeping the mine where the decedent, as' an employee, labored and lost his life, in an unusually dangerous and unsafe condition; and that in consequence thereof, the decedent was killed. In such an instance, to enable the plaintiff below to recover, she must show the decedent was not negligent. This could be done by showing that he was killed in ignorance of such dangerous condition; or knowing of the danger he continued to labor under a promise of the defendant below, to make the appliances safe in a reasonable time. Manufacturing Co. v,'Morrisey, 40 Ohio St., 148; Hough v. Railroad Co., 100 U-S. 218,
    The one question before us is: Is the averment contained in the original petition, alleging that the decedent was killed by the alleged negligence of the defendant below, without fault on the part' of the decedent, a sufficient allegation?
    The claim of the plaintiff, that knowledge, actual or constructive, on the part of the master, and ignorance on the part of the servant, must concur in order to fix the liability, is not the whole of the law, relating to the rights of the servant. The rights of the servant are. further qualified, as shown in the case last above cited, and bjl numerous cases cited in the record of the cases last aforesaid, to be enlarged by the promise of the principal to make safe the appliances.
    It is unquestioned that, in Ohio, where the plaintiff, in his petition, does not raise an implication of negligence on his part, the presumption of law is, he was not negligent.
    The burden of proving contributory negligence in such an instance, is on the defendant, while in Indiana, the burden, on the question of contributory negligence, is on the plaintiff. This rule may have influenced the Indiana court to a more burdensome and exacting rule of pleading, on the part of the plaintiff, in a case where the circumstances, in the case, suggest negligence on the part of the plaintiff, or one standing in his place. Several Indiana cases seem to sustain the claim advanced by the plaintiff in error. Railroad Company v. Sandford, 117 Ind., 265; Brazil Block Coal Co, v. Young, 117 Ind., 520; Railroad Company v. Corps, 124 Ind., 427,
    It seems that the Indiana court stands almost, or quite, alone, in the matter in question, although in Georgia there is some indication of a similar holding, Allen v, The Augusta Factory, 82 Ga., 76.
    In this case the court says nothing about the rule recognized in Ohio and elsewhere, as to the effect of a promise of the defendant to make safe running machinery. Street Railroad Co. v. Nelthenius, 40 Ohio St., 876.
    Few if any of the other cases mentioned by the plaintiff in error, cast any certain light on the issue,
    It has always been the practice, in Ohio, in the petition, to negative the inference of contributory negligence on the part of the plaintiff, by alleging “he was without fault on his part,” etc. 1 vol. Nash Pleading and Practice, 4 Ed. p. 478, 579, 501; Crater v. Metropolitan R. R. Co., U. R., 1 C. B, 300; Longmore v. G. IV. R. R. Co. 19 C. B. N. S. 183; Tony v. The Brighton R. R. Co., 3 C. B. N. S., 146; Swan’s Pleadings, under the code, 131; Yaple’s Code Practice and Pleadings, vol.. II, p, 1178; C. C. C. and I. R. .R Co. v. Felleat,^ Ohio St., 340; Street R, R. Co. v. Shiers, 18 Ohio-St., 255; The Mad River and Lake Erie R. R. Co. v. Barber, 5 Oliio St., 541.
   MiNSHarr, J.

From the averments of the petition it appears that a recovery is soúght on the ground that the death of Henry Norman was caused by the 'negligent manner in which the defendant maintained the roof of that portion of the mine in which he was employed at the time the roof fell; and, while it is averred that the accident occurred without fault on his part,- it is not averred that at that time and prior thereto, he was without knowledge of the condition of the roof, and that it was dangerous to continue in the employment of the company under it; or that, having such knowledge, he informed the company, and continued in its employment on its promise to remedy the defects. „

The rules which determine the liability of a master to his servant, injured in his employment, may be regarded as well settled. In the absence of a contract, the master is not, in any case, the insurer of the safety of his servant. It is, however, his duty to furnish the servant with reasonably safe appliances, and to protect him from such dangers in the performance of his work, as in the exercise of ordinary care and prudence, .can . be provided against. It necessarily results from this, and so the law is, that the servant, by the terms of his employment, is presumed to assume the risk of such injuries from accident as are incident to the nature and character of the employment, and against which the master could not, in the exercise of ordinary care, have protected him. And, as a further limitation upon the liability of the master for injuries received by the servant in the course of his employment, it is equally well settled, that no recovery can be had against'the master, where the cause of the injury, of whatever nature, was unknown to the master and could not have been known in the exercise of ordinary care. And,, furthermore, no recovery can be had where the source of danger is known to the servant, and he, without communicating his knowledge to the master, continues in his service; in such case he is presumed voluntarily-to assume the risk, and is without remedy, according- to the maxim volenti non fit injiiria; unless it is made to appear that be informed the master of the facts and continued in his service on the faith of a promise that he would remove the danger by remedying the defects. Whilst recent decisions have given a more liberal construction than formerly prevailed to the rights of a servant, remaining in the employment of the master after he has knowledge that there are defects in the appliances furnished, or in the conditions that surround him, making it hazardous to do so, they have not, as we believe, gone beyond the above statement of the law on the subject. Manufacturing Company v. Morrissy, 40 Ohio St., 148; Sherman & Redfield on Negligence, § 208 and notes.

We come then to the question, whether in view of the law of the case the petition states a cause of action against the company. The objection made on the demurrer is, that, whilst it is averred that the falling of the roof and the injury to the decedent, occurred without fault on his part, it is not averred that he was without knowledge of the unsafe condition of the roof at and prior to the accident; or that, having such knowledge, he informed the company and con-, tinued in its employment on its promise to remove the danger. On the other hand it is argued, that the averment that the roof, of the mine fell and caused the death of Henry Norman “without fault on his part” includes by implication ■that the character of the roof and the insufficiency of its supports, were unknown to the deceased.

After a careful consideration of the question we are of the opinion that, both upon principle and authority, the demurrer should have been sustained. The deceased may at the time have been without any fault contributing to his injury — may have been extremely careful — and yet fully aware of the danger to which he was exposed from the insecurity of the roof of the mine; and a failure to communicate such fact to the employer is' not a mere matter of defense that should be pleaded, but a defect in the ground on which his liability is asserted; that is to say, actionable negligence. Hence, to have constituted a cause of action, the petition should have averred, either that the deceased was without knowledge as to .the dangerous character of the roof of the mine, or that, having such knowledge, he had informed the company, and continued in its employment on its promise,, express or implied, to remedy the defect; and the averment that the accident occurred without fault of the deceased is not the equivalent of such averment. Beach, Contributory Negligence, § 16. In Wood on the law of Master and Servant, § 414, it is said: “The. servant, in order to recover for defects in the appliances ot the business, is called on to establish three propositions: 1. That the appliance was defective. 2. That the master had notice thereof, or knowledge, or ought to have had, 3. That the servant did not know of - the defect, and had not equal means of knowing with the master;” and it is elementary in the law of pleading that, whatever a party is required to prove in order to make out his claim must be averred.

The precise point presented in this case, as to the sufficiency of a petition in an action by a servant against his master for an injury caused by negligence, has not heretofore been determined by this court. But in other states, where it has arisen, it has generally been held, that want of knowledge of the efficient cause of the injury, or facts excusing such knowledge, must be averred in the complaint. The cases are cited in the brief of the plaintiff in error. All the approved precedents contain such an averment. 1. Bates’ Pleadings and Practice, 562, 2. Yaple, Code Practice and Precedents, 1177; Maxwell, Code Pleading, 241, 244.

Judgment reversed and cause remanded for fiirther proceedings.


author: DickMAN, J.

text:
    Ratterman, Treas. v. Express Company.

      Involuntary payment of illegal tax.

    A payment to the county treasurer, by an express company, of an illegal tax on its gross receipts from interstate business, under protest, and with notice of an intention to bring action to recover back the amount paid, is an involuntary payment when made to avoid the penalties imposed by section 2843, of the Revised Statutes, and an action may be maintained to recover back the amount so paid. Such payment of the illegal tax, under protest and with notice, becomes involuntary by reason of the danger of destruction to the defaulting company’s business, through the refusal of others to convey or carry packages, parcels, or merchandise, for the company, on account of the statutory penalties for conveying the same.
    (Decided November 1, 1892.)
    Error to the Superior Court of Cincinnati.
    The original petition was filed December 15,1887, by The American Express Company, the defendant in error, in the Superior Court of Cincinnati, and reads as follows:
    “The plaintiff is a joint stock association duly organized and existing under the laws of the state of New York. The defendant, Frank Ratterman, is, and at the times hereinafter mentioned, was treasurer of Hamilton county, Ohio. '
    “The principal office of the plaintiff is, and during the time hereinafter mentioned was, in the city of New York. During said time, it has been, and now is, engaged in the express business, and is an express company within the meaning of the Revised Statutes of Ohio, sec. 2777, with an office in the city of Cincinnati and other points in said county, and doing an express business between said offices in said county and other points in the state of Ohio and in other states.
    “Plaintiff’s horses, wagons, furniture and other property in the state have been and are taxed like other property in said state.

      “ In the month of May, 1886, the plaintiff delivered to the auditor of said county a statement, as required by Rev. Stat. Ohio, sec. 2778, showing .the receipts of said plaintiff in said county for the year next preceding, in the carrying on of its said business, which said gross receipts amounted to the sum of $81,776.00, a large portion of which was for business done by the plaintiff between its offices in said county, and points outside of the state of Ohio. That is to say, said receipts were largely for business and transportation pertaining to commerce between the states, and not for business and transportation between different points within the state of Ohio. And thereupon, said auditor assessed a tax on said receipts for said year amounting to $805.84. And the defendant required the plaintiff to pay the same; and the plaintiff did make payment thereof, to-wit: one-half thereof, $402.92, on December 20, 1886, and a like amount on June .20, 1887.
    “At the time of making said payment, the plaintiff duly protested against paying said tax, on the ground that the same was unlawful and in violation of the Constitution of the United States. And said payment was made by the plaintiff to avoid the penalties, disabilities and punishments provided by Revised Statutes Ohio, section 2843, which the defendant would otherwise have enforced, to the interference, stoppage and destruction of the plaintiff’s business.
    "The plaintiff says that said taxes so assessed against it and paid by it under protest, were illegal and void and in violation of the Constitution of the United States; and it _jprays to recover from the defendant said sum of $805.84, with interest on one-half thereof from December 20, 1886, and on one-half thereof from June 20, 1887, and for its costs, and for all other Relief to which it may be entitled.”
    A demurrer to this petition having been overruled, the following answer was filed:
    “The defendant for answer to plaintiff’s petition says, he admits plaintiff is a joint stock association duly organized under the laws of the state of New York; he admits the principal office of the plaintiff is in the city of New York, and that plaintiff is an express company as set forth in the petition; he admits that in the month of May, 1886, the plaintiff delivered to the auditor of Hamilton county, Ohio, a statement as required by the 'Revised Statutes, section 2778, showing the receipts of said plaintiff, in the county of Hamilton, for the year next preceding, in the carrying on of its business.
    “He denies each and every allegation in said petition contained not herein admitted to be true.
    .“Defendant for a second defense says that at the time plaintiff made return of said gross receipts, of its business for taxation, it wholly failed to separate the state receipts from interstate receipts, and wholly failed to advise the auditor of said county, or this defendant, what amount of its gross receipts were from state commerce, and what amount from interstate commerce, and that it made said payments of taxes voluntarily; that the defendant, when said payments were made, had not made demand on plaintiff for any taxes, and -plaintiff’s property had • not been seized by defendant, and no process of any kind had been issued against the property of said plaintiff, and that said tax was not delinquent at the time said payments were made, and further, that prior to the bringing of this suit the entire amount of tax paid by plaintiff had been by defendant paid over and distributed to the various departments entitled by law to receive the same, and this defendant had fully accounted for and settled the .entire amount of said taxes.
    “Defendant further says at the time said taxes were paid said law under which the same had been levied and collected, had been held to be constitutional by the Supreme Court of Ohio. Wherefore, defendant asks to be hence dismissed with his costs.”
    The case was heard upon the pleadings, and the following agreed statement of facts:
    “Plaintiff and defendant agree upon the following facts, and submit the case thereon. The plaintiff is a joint stock association as set forth in the petition herein. In the month of May, 1886, the plaintiff delivered to the áuditor of Hamilton county a statement, as required by Revised Statutes, section 2778, on the blank theretofore handed by the auditor to the plaintiff for’that purpose, a true copy of which is hereto annexed, and marked Exhibit “A,” and made a part hereof. The amount of gross receipts set forth in said statement, to wit: $31,776.00, of the business of plaintiff, included the receipts from state business, and also from .interstate business, for the year next preceding the month of May, 1886, And this was the only return made to said auditor by plaintiff of its gross receipts for said year, and the same was placed on the tax duplicate by said auditor as provided by law, and the sum of $805.84 was assessed as taxes thereon for said year, as provided by law. Said sum of $31,776.00 was made up of the sum of $4,767.00 from state business, and the sum of $27,009,00 from interstate business. The amount of tax payable on state business was $120.87, and the amount of tax payable on interstate business was $684,97,
    “Plaintiff paid to the defendant, as treasurer of said count}', within one year jSrior to the commencement of this action, the sum of $402.92, before the 20th day of December, 1886, and a like sum of $402.92 before the 20th day of June, 1887; and at the time of making said payments which ■were made by check to the o'rder of said treasurer, accompanied said payments with a written protest, a copy of which is hereto annexed and marked Exhibit “B,” and made part hereof, and which wás a.protest against the entire tax on receipts, state and interstate, plaintiff making no separation thereof.
    “At the time plaintiff gave its check to the defendant, as treasurer, in payment of said taxes, said tax was not delinquent, and said defendant had -taken no action of any kind for the collection of said taxes, and made no demand on the plaintiff for the payment of the same. Defendant has paid over and distributed to the various departments entitled by law to receive the same, the amount of tax so collected' from plaintiff, and has fully accounted for and settled the entire amount of said taxes with the various departments for whose benefit it was levied.

      “Neither said auditor, nor said treasurer, had any knowledge of the amount received by plaintiff from state business, and the amount received from interstate business, but they knew that said receipts so taxed were largely from interstate business; but no separation was made thereof by plaintiff until after this action was brought.”
    Exhibit “A.”
    The. returns of the American Express Company, in compliance with section 2778, Revised Statutes of Ohio, of the gross earnings of said Company at all their agencies in the county of Hamilton, state of Ohio, for the year ending May, 1886.
    VIEEAGE OR CITY. GROSS EARNINGS.
    Cincinnati. .$31,436 00
    Harrison. . 191 00
    Rockland.. 85 00
    Sharon. . 25 00
    Carthage. 13 00
    Hartwell. 13'00
    Norwood. 8 00
    Hazelwood. . 5 00
    Exhibit “B.”
    AmeRicaN Express Company,'

      Superintendent’s Office, Ohio and Penn. Div.

    C. G. Kingsbury, Supt.

    Cincinnati, Ohio, May 31, 1887.
    Mr. Frank RATTERMAN, Treasurer Hamilton County, Cincinnati.

    Dear Sir: — The American Express Company hereby pay you $472.36, the amount of the enclosed tax bill. $402.92 of the said sum being all but the first item of said bill, is paid under protest, and in order to avoid the penalties and disabilities which would be incurred by refusal to pay; and you are hereby notified that said Express Company proposes to bring action to recover back said sum.of $402.92.
    Very truly,
    C. G. Kingsbury, Agent. (Signed.)

      The court found that there was due to the plaintiff from the defendant, Frank Ratterman, treasurer — now plaintiff in error — the sum of' $684.97, with interest, to wit: $786.00; and rendered judgment in favor of the plaintiff for the last named sumí with costs; to which finding and judgment the defendant excepted; and on petition in error by the defendant, the Superior Court, in General Term, affirmed said judgment; and this proceeding is instituted to reverse the judgments of the Superior Court.

      David K. Walson, Attorney General, Fred S. Spiegel, County Solicitor, and Thos. McDougall, for plantiff in error.
    Was such a payment voluntary or involuntary? It voluntary, then defendant in error was not entitled to recover, and the court below erred in rendering judgment in its favor. If involuntary,' *then the judgment below on that ground was properly rendered. Railroad Company v. The Commissiojiers, 98 U. S., 514, 545.
    The protest by defendant in error was a general one, and the statement that the company paid , the tax to save itself from the fines and penalties provided by the law for failure to pay, is simply a statement of what was in the mind of the defendant in error, and is not a statement of any act of the officer charged with the duty of collecting the tax. The treasurer had not even made demand for the tax; he had taken no steps to collect it; nothing had been done to enforce any fine or penalty against the company; the taxes were paid before they were delinquent, were not paid under duress or compulsion, and were collected on a duplicate made up by the auditor from a return voluntarily furnished him by the defendant in error; no information being communicated to the auditor as to what- part, if any, of the gross receipts was from interstate business. It -certainly can not be said that the duplicate thus made up and a tax thus paid was a tax, as far'as the taxpayer was concerned, paid under compulsion,
    We claim that the payment thus made by the defendant in error was a voluntary one; and that, being voluntary, ■even though the tax levied on interstate receipts was illegal, it cannot be recovered, and in support of this we ■cite the cases of Wilson v. Pellón, 40 Ohio St., 306; Conkling v. The City of Springfield, 24 N. W. Rep., 67; Bradford v. The City of Chicago, 25 Ill.,'415; Railroad Co. v. Commissioners, 98 U. S., 541; Deao v. Varnum, 80 Cal., 86; Omaha v. Kountz, 25 Neb., 60; Detroit's!. Martin, 34 Mich., 177; Railway Co. v. Dimviddie, 8 Sawyer, 312; Mays.v. The City ■of Cincinnati, 1 Ohio St., 268; Marietta v. Slocumb, 6 Ohio St., 471; Bakersr. The City of Cincinnati, 11 Ohio St. 534; Catoir v. Watterson, 38 Ohio St., 319; Meek v. McClure, 49 ■Cal., 628; Whitbeck v. Minch, 48 Ohio St., 210.

      Raip-sey, Maxwell & Ramsey, for defendant in error.
    I.The act, Revised Statutes, sec. 2843, imposed severe penalties for failure to pay the tax. Telegraph Co. ~v. Mayer, 28 Ohio St., 521; Rattermanv. Telegraph Co., 127 U. S. 411; Telegraph Co. v. Miller, 21 Bull., 135.
    II.It is well settled at common law that a tax illegally •assessed cannot be recovered back, unless payment has been made to relieve the person or property from detention, •or to prevent their seizure by ah officer having apparent authority to seize without resorting to an action at law. And so it was decided by this court in 1853. Mays v. Cincinnati, 1 Ohio St., 268. But why should counsel cite that case and numerous other cases under the common law in support of their defence in this action? The rule of common law is not disputed. But after Mays v. Cincinnati, had been decided, the legislature of Ohio, on April 10, 1856, passed the act (53 O. E., 179). Stephen v. Daniels, 27 Ohio St., 527; Catoir v. Watterson, 38 Ohio St., 319.
    III.But the tax in this case could be recovered even at common law without the aid of the remedial statute of Ohio. The defendant in error had a right, under the Constitution of the United States, to carry on its business in the state of Ohio, but the Ohio Statutes (Revised Statutes, 2843) imposed the most severe penalties, amounting to an exclusion from the state and a prohibition of its business for failure to pay the tax. It made every man, woman and child, who undertook to serve the company, if it refused to pay the tax, a criminal, subject to fine and imprisonment in the county jail, to be “fed on bread and water only.” It made every railroad company which “directly or indirectly” conveyed or carried any package for the defaulting company, liable for each offence to forfeit and'pay “a sum equal to the amount of such tax due and unpaid, with interest and penalty.” Robinson v. Frank Brothers Co., 132 U. S., 17; Baker v. City of Cincinnati, 11 Ohio St., 534.
    IV. There is no force in the suggestion that the defendant’s returns, as made to the county auditor, were not itemized so as to show the receipts derived from state commerce, and those derived from interstate commerce. Such an itemization would have been wholly useless. The auditor had no authority or discretion, under the statute, to place one class upon the duplicate and to omit the other. He made no request for a separation although he knew, as the statement of facts recites, that the receipts'were largely from interstate business. Ratterman v. Western Union Telegraph Co., 127 U. S., 411; State v. Commissioners of Perry County, 5 Ohio St., 497, 506; State v. Hipp, 38 Ohio St., 199, 230; Western Union Telegraph Co. v. Texas, 62 Texas, 630, Telegraph Co. v. Texas, 105 U. S., 460. ■
   DickMAN, J.

In May, 1886, the defendant in error — The American Express Company, returned its gross receipts for taxation to the auditor of Hamilton county. Thé return was made in accordance with the provisions of section 2778, of the Revised Statutes, which provides that, “Each agent of any express company, or telegraph company, having its principal office in any other state or country, and doing business in this state, shall, annually, in the month of May, make and deliver to the auditor of the proper county in which such agent has his place of business, a statement, verified by the oath of such agent, showing the entire receipts of such agent for the year then next preceding for and on account of such company, including its proportion of gross receipts for business done by such company in connection with lines of other companies outside of the limits of this state; provided, that the amount which any express company actually pays to the railroads within this state, for the transportation of their freight within this state, may he deducted from the gross receipts of such company as above ascertained, and the balance thus found as to the express ■companies, and the gross receipts as above ascertained for the telegraph companies, shall be by said auditor entered upon the duplicate of his county, against said company.”

The return of the express company showed the entire gross earnings for the year next preceding, without a separate itemization and statement of the receipts from the state business, as distinct from those from interstate business for the year mentioned. The aiiditor assessed a single tax on the aggregate receipts, and required the company to pay the same, The company made pajunent under protest, on the ground that the tax was unlawful, and in violation of the Constitution of the United States, and to avoid the penalties, disabilities and punishment imposed by section 2843 of the Revised Statutes.

That section provides as follows: “If the taxes assessed against any express company, telegraph company, telephone company, or insurance company, in any county in this state, shall remain due and unpaid to the treasurer of such county, for the period of twenty days after the time provided by law for the payment thereof, it shall be unlawful for any person or persons, or corporation, to act as agents, or do or transact any business for such company so in default to such county, until said tax, and interest, and penalty is fully paid; any person or agent, manager or clerk of any corporation, who shall, after such default, directly or indirectly act •as agent of, or do or transact any business whatever on account of or for the benefit of such company so in default, other than the payment of said tax, shall be held to be guilty of a misdemeanor, and on conviction thereof, shall be fined in any sum not less than one hundred nor more than five hundred dollars, or punished by imprisonment in the county jail, and fed on bread and water only, not exceeding thirty daj^s, or'both, at the discretion of the court; after such default, made as aforesaid, any railroad company which shall, directly or indirectly, convey or carry for said, defaulting express, telegraph, telephone company or insurance company, any package of money, merchandise, or other articles, or transmit any telegraphic message, after having notice of such default, shall, for every such offense, forfeit and pay a sum equal to the amount of such tax due and ^unpaid, with the interest and penalty thereon, to be recovered by an action in the name of the state, in the county where such tax is assessed, with costs of suit. ”

At the time of the payment of the tax by the company, its legality might have been deemed settled by adjudication’ of this court and of the Supreme Court of the United States. In Western Union Telegraph Company v. Mayer, 28 Ohio St. 521, it was held, under the provisions of “an act for the assessment and taxation of express and telegraph companies “ (S. & S. 769-771,) that, a state taxon the gross receipts of such company for the year next preceding the assessment return is not a tax on commerce between the several states, within the meaning of article 1, section 8, of the Constitution of the United States, although they arose chiefly from messages pertaining to such commerce, or from messages originating or terminating outside of the state, or were earned on. the lines of such companies outside of the state.

And in the case of State Tax on Railway Gross Receipts, 15 Wall, 284, the same principle was recognized, and it was there held that, a statute of a state imposing a tax upon the gross receipts of railro'ad companies is not repugnant to the Constitution of the United States, though the • gross receipts áre made up in part from freights received for transportation of merchandise from the state to another state, or into the state from another, and that such a tax is not a regulation of interstate commerce. “We-think,” says STRONG, J., “it may safely be laid down that the gross-receipts of railroad or canal companies, after they have reached the treasury of the carriers, though they may have • been derived in part from transportation of freight between, states, have become subject to legitimate taxation.”

But in Ratterman v. Western Union Telegraph Company, 127 U. S. 411, decided in 1888, it was held that, a single tax, assessed under the Revised Statutes of Ohio, upon receipts of a telegraph company which were partly derived from interstate commerce and partly from commerce within the state, and which were capable of separation but were returned and assessed in gross and without separation or apportionment, is invalid in proportion to the extent that such receipts were derived from interstate commerce, but is otherwise valid. The same rule would govern as to the invalidity of a tax, assessed under section 2778 of the Revised Statutes, upon receipts of an express company derived in part from interstate business, and partly from business within the state.

But, conceding the tax on receipts from interstate business to be invalid, while that on receipts from business within the state is valid, we do not think that the statute, under which the entire tax was assessed in gross and without separation or apportionment, is so indivisible in its operation that if one portion of the tax is illegal the collection of the other cannot be enforced. In the case before us, no difficulty can arise in determining what part of the tax is legal, and what part is illegal. The parties, in their agreed statement of facts, have made the separation, and it there appears that the amount of gross receipts set forth in the return of the express company, towit: $31,776.00 was made up of the sum of $4,767.00 from state business, and the sum of $27,009.00 from interstate business — that the amount of tax payable on state business was $120.87, and the amount of tax payable on interstate business was $684.97. The statute contemplates the taxation of the gross receipts of the express company, but, we do not conceive that the legislative intent is contravened, if the taxable gross receipts can be readily separated from those that are not taxable, and the .company is thereby relieved from an illegal assessment. See Treasurer v. Bank, 47 Ohio St. 603.

The tax, both legal and illegal, on its gross receipts for the year next preceding the month of May, 1886, having been paid in full by the express company, the question is presented, can the company recover back that portion of the tax which is invalid by reason of its having been assessed on receipts from business between the states?

It is contended in behalf of the plaintiff in error that the payment was voluntary, and if so, that no right of action accrued to the express company, notwithstanding the invalidity of the tax. The principle is an ancient one in the common law, and is of general application, that a tax voluntarily paid cannot be recovered back, and it is immaterial that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional. Under section 5848 of the Revised Statutes, courts of common pleas and superior courts have jurisdiction to enjoin the illegal levy of taxes and assessments, or the collection of either, and of actions to recover back such taxes or assessments as have been collected, without regard to the amount thereof. But the statute is not to be construed as authorizing the recovery back of taxes and assessments illegally levied, unless they have been paid involutarily. In Whitbeck v. Minch, 48 Ohio St. 210, it is said that, a party who pays an illegal assessment upon his property, cannot recover it back in a suit against the treasurer, unless the payment was an involuntary one.

It is difficult to lay down a rule by which to determine in the numerous cases 'that may arise, whether a payment has been made voluntarily or under compulsion. It has been repeatedly held, however, that a mere protest against the validity of a tax or assessment, with notice to the treasurer that the party intends to bring suit to recover it back, is not alone sufficient to relieve the payment of its presumed voluntary character. If in such case litigation is intended, it should, to be of avail, precede payment, whereby the party would have a plain remedy by injunction, provided by section 5848 of the Revised Statutes. Whitbeck v. Minch, supra.

In the case of Mays v. Cincinnati, 1 Ohio St. 268, it is stated as a general rule, that, to make the payment of an illegal demand involuntary, it must be made to appear that it was made to release the person or property of the party from detention, or to prevent a seizure of either by the other party having apparent authority to do so without resorting to an action at law. In keeping with the rule thus announced was the decision in Stephan v. Daniels, 27 Ohio St. 527, where, the property was returned delinquent for both taxes and assessment, and the real estate advertised to be sold at delinquent tax sale to pay the same. The plaintiffs, in order to release the land from custody and prevent its being sold at such sale, and to save the penalties incident to such sale, paid the taxes and illegal assessment then due, under protest.

But the rule, as stated in Mays v. Cincinnati, does not preclude all other duress or coercion that would render the payment of an illegal tax or assessment involuntary or compulsory. Indeed, in Baker v. Cincinnati, 11 Ohio St. 534, the court say, in reference to that rule: “ After an examination of the authorities, we think that the statement •which has been cited from Mays v. Cincinnati, should be qualified.” In Baker v. Cincinnati, it was accordingly held that, a payment may be, under circumstances, involuntary, and an action brought to recover back the money, when the position or interests of the party are such as to require from another the performance of a duty enjoined by law, and he is illegally compelled to pay the money to induce such performance. In that case, a party seeking to give a theatrical exhibition could not give it until after the payment Of the license fee, which was a condition precedent to the performance.

And in Catoir v. Waterson, 38 Ohio St. 319, it was held that, a person engaged in the traffic in intoxicating liquors who, under protest, paid into the county treasury the sum required of a dealer in liquors, by the terms of the act of April 5, 1882, known as “ The Pond Taw,” might mantain an action to recover back the sum so paid. The payment was regarded as a condition to doing business, as. made under an unconstitutional law, with protest, and Baker v. Cincinnati was followed as direct authority that the action to recover back the sum paid might be maintained.

In the path of the foregoing adjudications, the decision in Western Union Telegraph Company v. Mayer, supra, naturally followed, and in view of the illegality of the tax laid upon receipts from interstate business, we deem it conclusive of the case at bar. It was there held that, where a corporation is assessed on its gross receipts, under the provisions of “an act for the assessment and taxation of express and -telegraph companies," (S. & S. 769-771. R. S., § 277.7-2778-2779), and pays such assessment to avoid the penalties and disabilities incurred by a refusal to pay, but under' protest, and after notifying the treasurer that an action would be brought to recover back; such payment is not voluntary, and an action may be maintained to recover back the amount so paid, if the tax is illegal.

A payment under protest, on the ground of illegality of the tax assessed against the express company, to avoid the penalties and disabilities imposed by section 2848 of the Revised Statutes, cannot, in our judgment, be regarded as a voluntary payment. It matters not that the tax was paid before default day, when the inevitable and severe statutory penalties in case of delinquency are taken into consideration. A failure to comply with the requirement of the statute as to the payment of the tax, would have imperiled the existence of the company’s business; and to save its business in this state and to a large extent in the United States from destruction, it was necessary to avoid the statutory penalties and disabilities. The statute made it a crime punishable by imprisonment in the county jail, and to be fed on bread and water only, for any person, or agent, manager or clerk of any corporation, to do or transact any business whatever for such company in default of payment of the tax; and any railroad company was prohibited, under penalty of forfeiting a sum equal to the tax and penalty, from carrying' any package of money, merchandise, or other articles, for such defaulting express company. With the obvious danger in view that employees, and others independent of and beyond the control of the express company would be deterred by the penalties, and refuse to carry for it packages, parcels, or merchandise in the line of its business, a payment of the tax by the company might well be deemed to have been made under duress or coercion, and without waiver by the company of its day in court. If the payment of an illegal tax under protest as a condition precedent to the privilege of carrying on one’s business, is to be treated as involuntary, so, the payment of such a tax under protest is none the less involuntary, when made to save from destruction a business already established.

Other questions in the case besides the aforegoing have received our consideration, but finding no error in the record, the judgment will be

Affirvied.