author: Shauck, J.

text:
    Phillips et al. v. Herron et al., Trustees, et al.

      Entailment of real estate — Section 4%00, Rev. Stat. — Extent of inhibition.

    1. The act to restrict the entailment of real estate (Revised Statutes, section 4200), supersedes the rule of the common law upon the subject.
    2. It-inhibits only devises to persons who are in fact more remote than the immediate issue of persons in being at the death of the testator.
    3. Within the meaning of the act, a childinutero&iüie testator’s death is in being.
    (Decided December 15, 1896.)
    Error to the Superior Court of Cincinnati.
    This suit concerns real estate only, and involves the right and duty of the trustees under the will of Thomas Phillips, deceased, to carry out all of its terms, including the following:
    “3d. My said trustees shall, from time to time, pay over one-third of the net income arising from the said two-thirds of my estate to my son George during his natural life, and at his death to his children, or the survivors of them, in equal shares during the natural life of each of them. In the case of the death of either of the children of my son George without lawful issue, the share of such child shall go to his brothers and sisters during their lives, and to the issue, if any, in fee, of any that may be dead; and in case of the death of all of said children without lawful issue, then the said shares shall be held by said trustees in trust for the same purposes as hereinafter provided for the remaining two-thirds; but in the ease of the death, of either of the children of my son George, leaving issue, such issue shall receive, as owner, in fee, the share of said trust fund of which said children had the income.”
    The testator died in March, 1870. His son George died in March, 1873, leaving surviving him five children, the youngest of whom, Maurice Dudley Phillips, was born in September, 1870. A statement of other facts would only impose the duty of showing that they are immaterial.

      Thomas McDougal and Alfred O. Cassatt, for plaintiffs in error.
    1. The devise of the fee under the third clause above is void under the Ohio law relating to perpetuities.
    2. The fee should now vest in the children of George, thus terminating the trust as to them.
    Where there is a gift to .a class of persons some of whom are incapable of taking by the rule against perpetuities, the consequence is that the gift fails altogether. (Greenwood v. Roberts, 15 Beav., 92; section 4200 Rev. Stat.
    In this case the gift was of an “aggregate sum,” viz., the fee of one-third of the trust estate; “to a body of persons uncertain in number at the time of the gift,” viz.,'the grandchildren of the testator’s son George; “to be ascertained at a future • time,” viz., when all of the children of George had died; “in equal or some other definite proportions, the share of each being dependent for its amount upon the ultimate number of persons.”
    As George was living at the time of the testator’s death, and might have had children after that event, it was possible that some of his grandchildren, the class who were to take the fee, might not be the immediate issue or descendants of persons in being at the testator’s death. They would then be too remote under the statute.
    It thus appearing that the devise was made to a class some members of which might not be able to take, we are now ready to lay down the principle that such a devise is void as to the whole class. Leake v. Robinson, 2 Meriv., 363. Jee v. Audley, 1 Cox, 324; Pearks v. Mosely, 5 App. Cas., 714; Greenwood v. Roberts, 15 Beav., 92; Seaman v. Wood, 22 Beav., 591; Webster v. Boddington, 26 Beav., 128; Caldwell v. Willis, 57 Miss., 555.
    It is true that a child en ventre sa mere is to be considered as born when it will be for its benefit-to be considered. (Gray on Perp., section 220.) But in this case it will not be for the benefit of Maurice Dudley to be considered as born. If our contention in this brief is correct and the trust shall be determinated, Maurice Dudley will receive the fee of his share, while if it is continued, he only receives a life estate. Can he then be considered as born, for the purpose of continuing the trust?
    Regard is had to possible and not actual events; and the fact that the gift might have included objects too remote is fatal to its vitality irrespectively of the event. Lewis on Perpetuities, 171 et seq.; 1 Jarman on Wills, 266 (5th ed.); Routledge v. Dorril, 2 Vesey, Jr., 357; Wheeler v. Fellowes, 52 Conn., 244; Rand v. Butler, 48 Conn., 293.
    If any further authorities are needed to establish this point, the following American cases may be cited : Jocelyn v. Nott, 44 Conn., 55; Nightingale v. Burril, 15 Pick., 104; Brattle Sq. Church v. Grant, 3 Gray, 142; Sears v. Russell, 8 Gray, 86; Everitt v. Everitt, 29 Bar. 112; Fosdick v. Fosdick, 6 Alien, 41; Jackson, v. Billinger, 18 Johns. 367, 381; Donohue v. McNichol, 61 Penn. St., 73; Whelan v. Reilly, 3 W. Va., 597; Amory v. Lord, 5 Seld., 403; Hawley v. James, 16 Wend., 61; Sears v. Putnam, 102 Mass., 5; Loring v. Blake, 98 Mass., 253.
    It appears plain from the facts in the case, and from the authorities and reasons cited, that the gift of the fee to the grandchildren of George was a gift to a class some members of which might not be able to take.
    The Ohio statute is a command addressed to the giver or grantor of real estate. It makes certain conditions which he must comply with in making ,his gift, and at the time he makes the gift.
    Now, in the case at bar, the testator made a gift to the grandchildren of George as a class.
    It is evident, therefore, that the terms of the statute were not complied with, for it is imperative that the estate must be given to the immediate issue or descendants of persons in being. R. R. Co. v. Recory, 3 Ohio St., 201; Gray on Perpetuities section 200.
    It is clear that before the year 1811. the common law rule against perpetuities was in force in Ohio, as to realty. Turley v. Turley, 11 Ohio St., 180; Potter’s Dwarris on Statutes and Constitutions, 185.
    • This case recognizes the application of the common-law principles to the statute on perpetuities. Alfred v. Marks, 49 Conn., 473.
    The fee should now vest in the children of George, thus terminating the trust as to them-Now, in the construction of wills, it is a well set. tied rule, sanctioned alike by reason and authority, that the intention of the testator must govern so far as the law will permit. Gibson v. McNeely, 11 Ohio St., 131.

      W. G. Herron, for defendants in error.
    The first question in this case is whether the devise of the fee simple in the will in the case at bar is good, as to the real estate, under the rule against perpetuities at common law.
    The will of Thomas Phillips, after giving life estates to the children of George Phillips, grandchildren of the testator, contains three provisions, or better, provision for three contingencies. We invert the order of the contingencies somewhat, in order to bring them in their logical sequence.
    Contingency A. The death of any of the children of George Phillips, grandchildren of the testator, leaving issue. In that case such issue gets a fee in the share of their parent, a grandchild of the testator.
    Contingency B. The death of any of the children of George Phillips, grandchildren of the testator, without issue.
    In that case the share of the child so dying is to go in fee to his or her brothers or sisters during their lives, and to the issue, if any, in fee of any that may have died.
    Contingency C. The death of all of the children of George Phillips, grandchildren of the testator, without issue.
    In that case the fee is to be held by the trustees upon certain trusts.
    Contingency C. It is admitted that the devise of the fee simple is not good at common law under this contingency.

      Contingency A. This .contingency is the death of any child of George Phillips leaving issue; in that ease the share of such child goes to its issue in fee. Now", if this were the only contingency in the will, there can, it is conceived, be no doubt that the devise of the fee simple to the is sue would be good at common law, as to the issue of those children who were born in the lifetime of the testator (though not good as to the issue of those children' of George who were not born in the lifetime of the testator), for the simple reason that the devises to such “born” children and to their issue are separable from the devises to other children not so “born” and their issue. The issue of “unborn” children and the issue of “born” children (to abbreviaté in this way) do not form a “class” to which the fee simple, as a whole, is devised (as is supposed by counsel for plaintiffs in error), but the share of the “born” child goes to its issue, without regard to the issue of “unborn” children, and without waiting for the death of such “unborn” children. The authorities upon this point are numerous and uniform. Cattlin v. Brown, 11 Hare, 372; Wilson v. Wilson, 28 Law Journal Chancery, 95; Knapping v. Tomlinson, 34 Law Journal Chancery, 3; Bentnick v. The Duke of Portland, 1 Ch. Division, 693; Pearks v. Moseley, 5 App. Cases, 714; In re Russell Dorrell v. Dorrell, 12 Rev. Rep., 23; Lowry v. Muldrow, 8 Rich. Eq., 241; Hills v. Simonds, 125 Mass., 536; Dorr v. Lovering, 147 Mass., 530.
    Contingency B. The same arguments and the same authorities apply to the devise of the fee under this contingency. Contingency B is the death of any of the children- of George Phillips, leaving no issue; in that case the fee simple of the share of the child so dying without issue is to go to the brothers and sisters of the one so dying-, and if any such brother or sister has died before that time, leaving issue, then to such issue. Now here, no more than under Contingency A, is the fee as a whole given to any “class” as a whole, nor is the vesting of the fee postponed until the death of some unborn child and the determination of its issue. Under Contingency B, the fee is to go either to the brothers and sisters of the life tenant, who are plainly the “immediate issue of persons in being ;” and if any such brother or sister be dead,’ then the fee goes to the issue of such brother or sister, who are plainly the “immediate descendants of persons in being.” Turley v. Turley, 11 Ohio St., 173.
    The argument up to this time has been based upon the assumption that the common-law rule against perpetuities exists in full force and effect in this state, and upon that assumption the contention has been that, even assuming this common-law doctrine to apply in this case, the main portion of the will of Thomas Phillips, i. e., both Contingencies A and B thereof, is valid and good. There exists, however, a statute in Ohio relating to this subject matter, and our contention is, therefore, having that statute in mind, that the rule against perpetuities is either (a) not law in Ohio at all, or (&) only to an extent which prevents its operation in this case. Section 4200, Revised Statutes of Ohio.
    The rule against perpetuities is not law in Ohio. This rule is a rule governing future interest, it is the only rule governing them, and it is complete. Gray on Perpetuities, section 4. It was judge made, and at the time this country was settled, and especially at the time the state of Ohio was settled, it was in an unformed condition. Gray, chap. 5, part 6, especially sections 169 and 200.
    Since the statute was passed, the rule has never been mentioned in statutes or decisions, but it has always been assumed that the subject was governed by the statute. Walker’s American Law, 296, 310, and 324.
    Under the statute, assuming that the statute governs this case, the bequest to the issue of the children of George Phillips is good.
    George Phillips being dead, can have no more children. All his children except the last, Maurice Dudley, were born in the lifetime of the testator. The last was conceived at the time of the death of the testator, and therefore, was “in being, ” according to the general meaning of these words.
    The children of George Phillips were,therefore, all in being at the time of the death of thq testator, and their issue, which will be the immediate issue of persons in being at the time of the death of the testator, are directly within the very language of the statute. McArthur v. Scott, 113 U. S., 362; Alfred v. Markes, 49 Conn., 473; Wheeler v. Fellowes, 52 Conn., 238.
    The only question arises as to the one of George Phillips’ 'children named Maurice Dudley. As appears from the statement of facts, Maurice Dudley was born on September 19, 1870, and Thomas Phillips died on March 8, 1870. Maurice Dudley was therefore, to use techanical language, en ventre sa mere, at the time of the death of Thomas Phillips. The question therefore is whether such a person isa “person in being” within the meaning of section 4200, Revised Statutes. That such a person is seems to be established by the language of the Supreme Court in Starling, Executor, v. Price et al., 16 Ohio St., 29.
    In conclusion it is submitted that the foregoing arguments establish:
    1. That under the common law the devise of the fee in the will of Thomas Phillips, either under Contingency B or under Contingency A, is good, being not to a “class,” but to separable lines.
    2. That under section 4200 of the Revised Statutes the devise of the fee simple, even though it may be bad at common law, is good as to all those persons who are either the immediate issue or the immediate descendants of persons in being at the time of the death of the testator.

      'William Worthington, for Kate P. Leaman, defendant in error.
    ■ According to the terms of the will two-thirds of the residue of the estate, after satisfying sundry bequests, is given to trutees, in trust, as to one-third of the two-thirds, to pay its income to testator’s son, George, for life; remainder to his children for life; remainder as to the portion of the principal the income of which was paid to each child, to the issue of that child in fee, and in default of such issue surviving, to his or her brothers and sisters for life, and to the issue of predeceased brothers and sisters, by way of substitution for them, in fee.
    It cannot be doubted that the life estate given to George Phillips is valid. It cannot be doubted that the life estates in remainder given to his children upon his death are valid.
    But it is contended that the estates in fee, expectant on these remainders, are void because, though in fact George did not, yet he might have had children conceived after the death of his father ; and then it is urged that these estates in fee, clearly given to George’s grandchildren, and to them only, should he advanced one generation and vested in his children, though these children should he childless, to merge in, or rather to destroy, the life estates given to those children.
    That there is no warrant in the will for this conclusion is obvious; for there is nothing in it manifesting an intent under any circumstances to vest a fee in George’s children. On the contrary, the opposite intention is clearly and positively expressed.
    That the conclusion is contrary to the rule ordinarily applied is well settled. Gray on The Rule against Perpetuities, section 247; Lewis on Perpetuities, 657 ; 28 W. L. B., 330.
    Tne conclusion also is opposed to the other well established rule — that the rule against perpetuities is a command of law, and not a guide to construction ; and that where the meaning of the words used in the instrument is clear, it cannot be changed, affected, or in any degree altered by the rule against perpetuities and its effects. Pearks v. Moseley, 5 App. Cas., 714. Gray on The Rule against Perpetuities, sections 629-633; Marsden on Perpetuities, 262, 1 Jarman on Wills, *293.
    It is said, however, that a general intent to benefit the family of George Phillips is manifest in this will; and, although this general intent cannot be carried out in the particular way specified by the testator, because that way is contrary to the express rules of law, yet the courts will carry it out in some other way, will sacrifice the particular to the general intent, and, rejecting the former, effectuate the latter under what is known as the oy pres doctrine. But this doctrine i& never used to convert a life estate into a fee simple, but only into a fee tail.
    This doctrine is fuliy explained, and its limitations given, in Gray on the Rule against Perpetuities, sections 643-670; 1 Jarman on Wills, 297-302; Marsden on Perpetuities, 268-274; Theobald on Wills, 2d ed., 441-443.
    Among the limitations universally recognized are the following : That the doctrine has gone to the very verge of the law, and is not to be extended one step further; for in the effort to serve the general and particular intent, both are destroyed. Brudenell v. Elwes, 7 Ves. Jr. 382.
    That it does not apply to a bequest of personalty. Routledge v. Borril, 2 Ves. Jr. 357.
    Nor, consequently, of a mixed or blended fund, of both personalty and realty, given for one purpose. And that, as to unmixed real estate, it is never applied where the void limitation is one in fee simple, or so as to enlarge a life estate into a fee simple. Bristow v. Warde, 2 Ves. Jr. 336; Hale v. Pew, 25 Beav., 335; Wood v. Griffin, 46 N. H., 230.
    All of which are in effect summed up in one limitation, constantly announced, that “You cannot apply the rule where the effect of so doing will be to make the estate devolve in a line of succession different from that which the testator has expressly designated.” Hampton v. Holman, L. R., 5Ch. Div., 183.
   Shauck, J.

It is admitted by all concerned that the trustees are seeking to pursue strictly the terms of their trust as defined in the will of Thomas Phillips, if the foregoing provision of that will is valid in all respects. But the plaintiffs in error contend that, in so far as it attempts to devise an estate to the great grandchildren of the testator, it is void because in violation of the laws of the state to restrict the entaiiment of real estate, and that in consequence thereof the estate remains absolute in the issue of the first donee in tail. Our statute upon the subject, (Revised Statutes, section 4200), passed December 17, 1811, (S. & C., 550), is as follows:

“No estate in fee simple, fee tail, or any lesser estate in lands or tenements lying within this state, shall be given or granted by deed or will to any person or persons but such as are in being or to the immediate issue or descendents of such as are in being at the time of making such deed or will; and all estates given in tail shall be and remain an absolute estate in fee simple to the issue of the first donee in taii.”

While it is true that this is not an enabling act, it is a limitation upon the general authority to devise “at will and pleasure * * * all estates in lands, tenements, etc.,” conferred by the act of February 18, 1808,’Chase, St., 571, (Revised Statute, Sec. 5914). If the devise in question is not within the limitation, it is valid under the general authority. This supersedes inquiry as to the scope of the rule of the common law upon the subject. The statute does not contemplate mere possibilities. It forbids devises to persons who are in fact more remote than the immediate issue of persons in being at the time of the testator’s death. That further issue of the first donee in tail might come into being, is immaterial. In this view it is clear that the will contemplates no contingency in which the fee should vest in any one more remote than the immediate issue of a person in being at the time of the testator’s death, if the youngest son of George was then' in being.

Maurice Dudley, at the time of the testator's death, was en ventre sa mere. To say he was in being is only to give unrestricted significance to a term used in the statute without restricting qualifications. Petal existence in statutes upon this general subject is regarded as being. Gray on Perpetuities, Sec. 220; Starling's Ex'r. v. Price, 16 Ohio St., 29; Turley v. Turley, 11 Ohio St., 173; McArthur v. Scott, 113 U. S., 340.

Since all the great grandchildren of the testator may take according to the terms of the devise, it is not necessary to consider the proposition that they take as a class.

Judgment affirmed.


source: Caselaw Access Project

author: Bradbury, J.

license: Public Domain

text:
    Weaver v. The Columbus, Shawnee & Hocking Valley R’y Co.

      Trial of action — Case arrested and discharged by defendant's motion — Subject of motion for new trial — Bill of exceptions may be taken, when — Court procedure.

    1. Where on the trial of an action in a court of common pleas, the court, upon the motion of the defendant, arrests the evidence of plaintiff from the jury, discharges the jury and renders judgment for the defendant, the plaintiff may make such action of the court the subject of a motion for a new trial.
    2. If, in such case, the motion for a new trial should be overruled, the period of time within which a bill of exceptions may be taken should be computed from the day that the motion for a new trial was overruled.
    (Decided December 15, 1896.)
    Error to the Circuit Court of Franklin county.

      J. I. Hampton and L. G, Addison, for plaintiff in error.

      John Ferguson; W, 01. Henderson and JR, F. Guerin, for defendant in error.
    The facts will be stated in the opinion óf the court.
   Bradbury, J.

The plaintiff in error brought an action in the court of common pleas of Franklin county against the defendant in error to recover for injuries sustained byhiminhis person, and property on account of the negligence of the railway company in running one of its trains. The action was twice tried. The first trial resulted in a verdict and judgment for the plaintiff, which judgment was reversed by the circuit court on error, and a new trial of the cause awarded, one ground of the reversal being that the verdict was not sustained by sufficient evidence in this: That the evidence did not establish the negligence on the part of the railway company, but did establish that the injury was the result of the negligence of the plaintiff. The cause was remanded to the court of common pleas for further proceeding. Upon the second trial of the action in the latter court to a jury, the plaintiff introduced the same evidence that he had submitted to the former jury. Thereupon the defendant moved the court “to arrest the testimony from the jury and to render a judgment for the defendant, for the reason, that admitting all that the testimony and evidence in behalf of the plaintiff tends to prove, the testimony and evidence are not sufficient to entitle the plaintiff to a verdict.” * * *

•This motion was sustained; the evidence of the plaintiff withdrawn from the jury, the jury discharged and a final judgment entered for costs, .and dismissing the defendant without day. This was done on the second day of May, 1895. The .plaintiff in due time filed a motion for a new trial on the ground that the court had erred in withdrawing his evidence from the consideration of the jury and directing a verdict for the defendant. On July 1st, 1895, this motion was overruled, and exceptions noted. And on the 6th of August, following the plantiff’s bill of exceptions, setting forth this action of the court was duly allowed.

The plaintiff took the case to the circuit court on error, and the latter court upon motion of defendant struck the bill of exceptions from the files on the ground that it had not been allowed within the period of time prescribed by statute.

The correctness of this action of the circuit court depends upon the answer to be given to the question: From what act of the court of common pleas did the period of time begin to run? If from the day on which the court withdrew the evidence from the jury, then the bill of exceptions was not allowed within the statutory period of fifty days. If the computation should be made from the day a motion for a new trial was overruled, the fifty days had not elapsed when the bill of exceptions was allowed and filed. Section 5301 Rev. Stat., as amended March 22, 1892, 89 Ohio laws, 124, in force when the bill of exceptions, which is the subject of the present controversy, was taken, provides “Sec. 5301. When the decision is not entered on the record or the grounds of the objection do not sufficiently appear in the entry, or the exception is to a decision of the court on a motion to direct a non-suit, or to arrest the testimony from the jury, or for a new trial for misdirection by the court to the jury, or because the verdict, or if a jury is waived, the finding of the court is against the law and the evidence, or in the admission or rejection of evidence, the party excepting must reduce his exceptions to writing and present the same to the trial judge or judges for allowance within fifty days after overruling of the motion for a new trial, or the decision of the court where a motion for a new trial is not necessary. ” * * *

The difficulty encountered in determining the question before the court arises out of the language of section 5301, Rev. Stat. above quoted, and similar language in section 5298, which seems to require a bill of exceptions to be allowed within fifty days from the time a decision was made where a motion for a new trial is not necessary.

A consideration of these two sections alone would lead to that conclusion. There are, however, other statutory provisions that bear upon the question.

The statutes of the state do not expressly prescribe the conditions under which a motion for a new trial is or is not necessary to bring a particular question on the record. The question depends upon a judicial interpretation and construction of a number of statutory provisions, as well as of a consideration of common law principles. This court held in Earp, Supervisor, v. Railroad Co., 12 Ohio St., 621, that a motion for a new trial was not necessary where the exception was to a ruling' of the trial court upon the admission of evidence or to its charge to the jury. This court has also held that a motion for a new trial was necessary to enable the reviewing court to review the evidence where claim is made that the verdict or decision is against its weight. Westfall v. Bung an et al., 14 Ohio State, 276. Randall v. Turner 17 Ohio St., 262. In respect to a number of other grounds of error, this court has not yet determined whether or not a motion for a new trial is necessary to bring them into the record. Doubtless the inferences to be drawn from sections 5307, 5308 and 5309 Rev. Stats., as well as the nature of the grounds for a newtrialcontained in sub-divisions two, three and seven of section 5305 Rev. Stat., indicate clearly that a motion for a new trial is necessary in respect to each of them.

The sixth sub-division of section 5305, prescribes that a new trial may be had on the ground “that the. verdict, report or decision is not sustained by sufficient evidence, or is contrary to law.” The statutes of the state do not provide in express terms that a new trial may be had because a “verdict, report or decision” is contrary to or against, “the weight of the evidence.” A “verdict, report or decision, ” however, should be regarded as against the weight of the evidence whenever the evidence is not sufficient to sustain it. A reviewing court therefore, by force of the provision above noticed that a new trial may be granted where the verdict, report or decision is not sustained by sufficient evidence, may grant a new trial because the verdict etc., is “against or contrary to the weight of the evidence.” This sub-division (6) of section 5305, not only authorizes a new trial upon the ground that the verdict, etc., is not sustained by sufficient evidence, but in equally explicit terms authorizes a new trial whenever the “verdict, reporter decision” is contrary to law. This ground — that the “verdict, report or decision” is contrary to law is broad and comprehensive. It would seem to include any error of law committed by the trial court in the course of atrial prejudicial to the losing party. Section 5307 Rev. Stat. prescribes the time within which an application for a new trial must be made. Section 5708 prescribes that “the application must be made by motion, upon written grounds,” certain grounds, those specified in subdivision two, three and seven of section 5305, must be sustained by proof. This plainly implies that there are other grounds for a new trial mentioned in that section (5305) which may be embodied in the motion, without proof to support them. What are they? It is not practicable to select one or more of these grounds and affirm that they may be included in the written motion for a new trial, and that the others shall not. The fair construction of these sections of the code of civil procedure relating to new trials is that any ground of error comp rehended within the provisions of any one or all of the sub-divisions of section 5305 Rev. Stat., may be included in the written motion for a new trial.

It may be true that some of the rulings of the trial court do not require a motion for new trial to bring them into the record. If, as to them, none is made, the period within which a bill of exceptions must be filed begins to run from the ruling complained of. It is to this condition of those questions that this limitation applies. Where, however, the party excepting chooses to avail himself of the right granted by sections 5305, 5307 and '5308, Rev. Stats., to include the ground of error in a motion for a new trial, he re-submits the question, and the error should be regarded as arising out of the action of the court in overruling the motion for a new trial. This construction of the sections of the statute is necessary, or the party excepting in many instances will be debarred from the exercise of the valuable privilege by the provisions of sections 5305, 5307 and 5308, Rev. Stats., of a rehearing of the question in the trial court under circumstances more favorable to its deliberate consideration than attended the first investigation. This is the prime object to be obtained by a motion for new trial and we think this object should not be defeated by placing a strict construction on the section of the statute that relates primarily to the time and manner of taking bills of exceptions. .'

These views are in harmony with the conclusion reached in the case of the Cincinnatti Street Railway Co. v. Wright, supra.

Judgment reversed, and cause remanded to the circuit court for further proceedings.


author: Spear, J;

text:
    The P. C. C. & St. L. R’y. Co. v. Cox.

      Association of railroad company and employes — Relief fund for employes — Contract of membership — Company may deduct wages as contribution — Member may release company .from liability for damages— Validity of contract.

    An employe of a railroad company, voluntarily, and with full knowledge of the character and effect of the contract he was assuming, applied for admission to an association composed of the company and a portion of its employes, called the “Voluntary Relief Department,” and being admitted, contracted that the company might deduct from his wages the sum of seventy-five cents per month for the purpose of forming, with other like contributions by other employe members, and contributions, which by the contract the company was obliged to make, a relief fund for the benefit of the employes in case of sickness, accident or death; and contracted, further, that in case of accident, the acceptance by him thereafter of relief from the relief fund so accumulated should have the effect to release the company from liability for damages :
    Held, 1. Such contract 'is not interdicted by the act of April 2, 1890, 87 O. L., 149, 1 ‘for the protection and relief of railroad employes,” etc. 2. The contract is not contrary to public policy. 3. The contract does not lack mutuality.' 4. It is based upon a valid consideration.
    (Decided December 15, 1896.)
    Error to the Circuit Court of Warren county.
    The action of the defendant in error against the company was to recover for injuries by reason of the alleged negligence of the company. By its first defense the company denied negligence on its part and alleged that the accident was caused by the negligence of a fellow servant for which the company was not liable. The second defense was as follows:
    2. For a second defense to the plaintiff’s petition, the defendant says that if it is chargeable with the negligent acts complained of therein (a fact which this defendant wholly denies), nevertheless the said plaintiff, ought not to maintain this, his action, for that, on or about the 16th day of April, 1889, the Pennsylvania Company, a railroad corporation of the state of Pennsylvania, owning and operating- railroads in and through the states of Pennsylvania, Ohio and Indiana; the Chicago, St., Louis & Pittsburg Railroad Company, a railroad corporation of the states of Indiana and Illinois, owning and operating a railroad in the said states of Indiana, Illinois, and also in the state of Ohio, and the Pittsburg, Cincinnati & St. Louis Railway Company, a railroad corporation of the state of Ohio, owning and operating certain railroads in the states of Pennsylvania, Ohio and in the state of West Virginia, having formed each respectively a relief department for the benefit of its service and employes, and in order to secure uniformity and economy in the managementthereof, on the 1st day of July, 1889, associated themselves together' for the purpose of a joint administration and regulation of the said respective relief departments under one common organization known as “The Voluntary Relief Department of the Pennsylvania Lines West of Pittsburg.”
    That on the 1st day of October, 1890, the said The Chicago, St. Louis & Pittsburg Railroad Company and the Pittsburg, Cincinnati and St. Louis Railway Company were consolidated under the corporate name of the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, which company succeeded to all of the rights and assumed all the liabilities of said constituent companies in said relief department.
    That the object of said voluntary relief department was, and is the establishment and management of a fund known as “The Relief Fund,” and which has been established in accordance therewith for the payment of definite sums to employes contributing to the fund, who, under the regulations of said relief department, shall be entitled thereto when they are disabled by accident or sickness, and in the event of their death to the relatives or other beneficiary specified in the application of such employe for the membership in said relief fund and department.
    • That said relief fund from which benefits are paid is formed by voluntary contributions from employes, and appropriations, when necessary, to make up any deficiency, by the several companies respectively, for the benefit of the employes of each who may be members thereof, and income or profit derived from investments of the moneys of the fund, and such gifts or legacies as may be made for the use of the fund.
    That those participating in the benefits of the relief fund must be employes in the service of at least one of said associated companies; are known as “Members of the Relief Fund,” and are classified according to the amount of their regular pay per month, the first class consisting of those employes who receive not more than forty dollars per month.
    Under the regulations of said, relief department no employe is required to become a member of said relief fund, and his membership therein is purely voluntary, and he may withdraw there-' from at pleasure upon giving notice, but when he does become a member thereof he authorizes his employer company to withhold from his monthly wages, contributions for said relief fund, and which in the first class thereof is seventy-five cents per month, and which contribution entitles him during membership to benefits for disablement by accident, sickness or death.
    That to entitle an employe to participate in the benefits of said relief fund he must not be over forty-five years of age, pass a satisfactory medical examination, and make an application in the form prescribed by the regulations of said department, addressed to the superintendent of the relief department, and containing, amongst other things, the following stipulations, to wit:
    “I also agree that the said company” (being his employer company) “by its proper agent and in the manner provided in said regulations, shall apply as a voluntary contribution from any wages earned by me under said employment, or from benefits that may hereafter become payable to me, at the rate of--per month, for the purpose of securing the benefits provided for in the regulations for a member of the relief fund of the class, and additional death benefit equal to--the death benefit of the first class. The death benefit shall be payable to — (here designate the beneficiary or beneficiaries).
    “And I agree that the acceptance of benefits from the said relief fund for injury or death shall operate as a release of all claims for damages against said company,” (being his employer company) “arising from such injury or death, which could be made by or through me and that I, or my legal representatives, will execute such further instrument as may be necessary formally to evidence such acquittance.
    “I also agree that this application, when approved by the superintendent of the relief department, shall make me a member of the relief fund and constitute a contract between myself and the said company,” (being his employer company) “or with any other company that is now, or may be hereafter associated with said company in the management of the relief department, in case of a transfer of my services to any such other company during membership in the relief fund.”
    That said applicant, if he passes the necessary medical examination and is approved by the superintendent of the relief department, becomes a member of said relief fund contributing as aforesaid and receiving benefits in the manner as aforesaid.
    That the said associated companies in addition to the guaranty as aforesaid, supply all necessary facilities for conducting the business of said relief department, at their own expense, pay all of the operating expenses thereof, take charge of the funds thereof, pay interest thereon, and are responsible for their safe keeping.
    That said relief department is managed by a superintendent subject to the control of the general manager of the said Pennsylvania lines west of Pittsburg; medical examiners and necessary clerical force.
    That in addition there is an advisory committee, consisting of said general manager as aforesaid, who is ex officio a member and chairman of said committee, and twelve members, one-half of whom are chosen by said companies and the other half by the employes of said companies who are members of said relief fund. • -
    That said advisory committee has general supervision of the operations of said relief department and hold stated meetings once in three months at such time and. place as they shall determine, and shall meet at other times at the call of the general manager as chairman.
    That if during the period prior to the 1st of July, 1892, or during any one of the successive periods of three years thereafter, the amount contributed by the members of the fund and received from other sources should not be sufficient to meet the liabilities incurred for such period, the proper company or companies in whose account the same occurs will pay the deficiency, and if at the end of any such period there should be a surplus after making due allowance for liabilities incurred and not paid, such surplus shall not be used to make up any deficiency in any other such period, but shall be used in the promotion of a fund for the benefit of superannuated members, or in some other manner for the sole benefit of the relief fund, as shall be determined by a vote of two-thirds of the advisory committee, and approved by the board of directors of the associated companies.
    That during the last five years immediately preceding the filing of this petition, this defendant, under its guaranty as aforesaid, has paid into said fund for the benefit of plaintiff and other employes of the defendant, the sum of twenty-one thousand dollars in addition to its share of operating expenses of said department and interest upon the fund.
    That on the 25th day of October, 1892, the said plaintiff, with full knowledge of all the foregoing, except that he may not have had actual knowledge of the payment of said $21,000, made his voluntary written application containing the stipulations as aforesaid, to the superintendent of said relief department for membership in the first class of said relief fund, agreeing in said application that the defendant should apply, as a voluntary contribution from his wages, seventy-five cents per month for the purpose of securing to him the benefits provided for in the regulations for a member of the relief fund of the first class, and further agreeing therein that the acceptance of benefits from said relief fund for injury or death should operate as a release of all claims for damages against said defendant arising from said injury or death, which could be made by or through him, and that he or his legal representatives would execute such further instrument as might be necessary formally to evidence such acquittance.
    That having passed the medical examiner’s examination, and said application having been approved by the superintendent of said relief department, the said plaintiff, on the 1st day of November, 1892, became a member of said relief fund, contributing as aforesaid, and entitled to the benefits provided by the regulations of said relief department for members of the first class.
    That after the injuries received by the said plaintiff, and for a period from the 6th day of May, 1893, to June 30, 1894, he received as a member of said relief fund, the benefits to which he was entitled for his injuries amounting to one hundred and ninety-six dollars and twenty-five cents ($196.25), with full knowledge upon his part that he was not bound to accept the same, but that in so doing he released the said defendant company from any claim for damages against it arising from the injuries received by him on or about the sixth day of May, 1893, and of which he complains in his petition in this action; that he has never been dismissed from said fund • although he has received no benefits since the 30th day of June, 1894, pursuant to a regulation of said department which provides that if the member injured, brings suit against his employer company to recover damages for the injuries on account of which benefits are paid, the said benefits cease until such time as said suit is discontinued by said injured member when payment of benefits will be resumed.
    Reply to the first defense was interposed, and a demurrer to the second. This was overruled by the common pleas, and, upon trial on the pleadings, issue was found for defendant and a judgment for it rendered. The circuit court reversed that judgment, for error in overruling the demurrer and the company now seeks a reversal of the latter judgment.

      Cha/rles Darlington, for plaintiff in error.
    The act “For the protection and relief of railroad employes,” etc., passed April 2, 1890, O. L., vol. 87, p. 149, in so far as it strikes down the voluntary right to contract, ‘ is unconstitutional and therefore void.
    The statute prohibits the citizen from acquiring, possessing and protecting his property, because the right to contract lies back of the right to acquire, possess and protect property, and is just as inalienable, for if he cannot make a contract he is without the power to acquire property.
    In other words, the right to make a contract, if it does not contravene public policy, is as much property, as any of the tangible things we call property. This subject is entirely new in this state and some light may be thrown upon it by a review of the decisions of other states in which the principle here contended for has been drawn in question and decided. Frorer v. People, decided March 26,1892, Supreme Court of Illinois; 31 N. E., 397; 286 S. E. Rep., vol. 10; 109 N. Y., 398; Butchers’ Union Co. v. Crescent City Co., 111 U. S., 755; Association v. Crescent City Co., 1 Abb. (U. S.), 398; 109 U. S., 23; Wally v. Kennedy, 2 Yerg., 554; Vick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064; Slaughter House cases, 16 Wall., 36; 4 Supt. Ct. Rep. 652; 6 Myer Fed. Dec. Par. 1000; In re Jacobs, 98 N. Y. 98; People v. Marx, 99 N. Y. 377, 2 N. E. Rep., 29; Ex parte Westerfield, 55 Cal. 550; Ragio v. State, 2 Pickle, 272; 6 S. W. Rep., 401; State v. Divine, 98 N. C., 778; 4 S. E. Rep., 477.
    The avocation of an employer, as well as that of his employe, is his property. Depriving the owner of property of one of its attributes is depriving him of his property, under the'provisions of the constitution. People v. Otis, 90 N. Y., 48.
    If the legislature, without any public necessity, has the power to prohibit or restrict the right of contract between private persons in respect to one lawful trade or business, then it -may prevent the prosecution of all trades, and regulate all contracts. Brown v. Maryland, 12 Wheat., 419; Godcharles et al. v. Wigeman, decided by the Supreme Court of Pennsylvania, Oct. 4, 1886; Commonwealth v. Perry, 28 N. E. 1126; 24 Pac. Rep., 737.
    The contract certainly is a fair one, bearing- lightly upon the employe, far more heavily upon the company, and in the absence of fraud or imposition as held by our Supreme Court in Judy v. Louderman, 48 Ohio St., 562, the law will not enter into an inquiry as to the adequacy of the consideration but will leave the parties to be the sole judges of the benefits to be derived from their contracts.
    It has been sought to sustain this and similar legislation upon the ground that it is the exercise of a police power inherent in the legislature. No term has been so frequently used of late and no term is - so little understood. To the ordinary mind it seems to mean a vague indefinite power to be used by the legislature without limit and without restraint. But not so in one respect, it is not above or superior to the constitution which with us must always be the fundamental organic law circumscribing the rights of the legislative body. 98 N. Y., 107; Const. Lim. 4 ed., 719; Potter’s Dwarris on Statutes, 458; Austin v. Murray, 16 Pick., 126; Commonwealth v. Alger, 7 Cush., 53; Coe v. Shultz, 47 Barb., 64; In the Matter of Cheesebrough, 78 N. Y., 232; People v. Gillson, 17 N. E., 343; Millet v. People, 7 N. E., 634; State v. Goodwill, 10 S. E., 287; Munn v. Illinois, 94 U. S., 113; Mugler v. Kansas, 123 U. S., 623; 32 Ohio St., 158; The Wheeling Bridge and Terminal Co. v. Gilmore, 8 C. C. L. Rep., 658.
    In determining whether the contract in question is against public policy, it is not sufficient that the statute should so declare it, but it must in fact be so. Bailey on Master’s Liability for Injuries to Servants, 480.
    The court has held that railroad companies cannot contract with their employes; that they shall not be liable for injuries caused by the carelessness of those placed in authority and control over the injured employe, for the reason that the liability of the company in such cases is founded upon considerations of public policy. Railway Company v. Spangler, 44 Ohio St., 471; Johnson v.
      R. R. Co., 29 Atl. Rep., 854; Fuller v. B. & O. Emyloyes Relief Association, Court of Appeals of Maryland, 10th Atlantic Rep. page 237. Owens v. R. R. Co., 35 Fed. Rep., 715; Shaver v. The Penn. Co., Weekly Law Bulletin, Vol. 35, No. 9, 106.
    While in the ease at bar the first circuit reversed the judgment of the common pleas yet another circuit has held just the reverse. B. & O. R. R. Co., v. Bryant, 9 Ohio, C. C. Rep., 332; Martin v. B. & O. R. R. Co., 41 Fed. Rep., 125.
    The following Pennsylvania decisions likewise sustain such a contract as the one in controversy. Graft v. B. & O. R. R. Co., 8th Atl. Rep., 206; Johnson v. P. & R. R. R. Co., 163 Pa. St., 127; Single v. P. & R. R. R. Co., 164 Pa. St., 529.
    In Indiana the Pennsylvania relief contracts have been upheld as not against public policy. Leas v. Penn. Co., 37 N. E. Rep., 423.
    In Iowa the C. B. & Q. R. R. relief contract, similiar to the one in controversy, has been sustained as not against public policy. C. B. & Q. R. R. Co. v. McDonald, 61 N. W. Rep., 971.
    The federal courts have in other instances sustained these contracts. Otis v. Penn. Co., 71 Fed. Rep., 136; Vickers v. O. B. & Q. R. Co., 71 Fed. Rep., 139.
    The whole ground seems to be covered by a decision of the Supreme Court of Nebraska in the case of C. B. & Q. R. R. Co. v. Bell, 44 Neb., 44.

      Albert ZZenderson and W. F. Eltzroth, for defendant in error.
    There are three questions involved.

      First — -The constitutionality of the act of April 2d, 1890. O. L., vol 87, 149.
    It is the duty of courts to construe statutes liberally in order to save them from constitutional infirmities. Before the legislation shall be declared void on that account, there shall be no reasonable doubt.
    It must be clearly and manifestly forbidden by the constitution. Gilpin v. Williams, 25 Ohio St., 294; Western U. Tel. Co. v. Mayer, 28 Ohio St., 540; Cooleys Const. Lim. 1st Ed., 182-3.
    The circumstances grave, and full bench should sit. Cooley Const. Lim. 1st Ed. 161-2.
    Courts will not declare acts void because against the spirit of the constitution. Must be against its letter and language. The State, etc., v. Smith, 44 Ohio St., 348, 374; People v. Fisher, 24 Wend, 220; 20 Wend., 381-383; People v. Gallagher, 4 Mich. 244; Mayor, etc., of Albany, 24 Barb., 252; Grant v. Courter, 24 Barb., 232 et seq; Wynehamer v. People, 13 N. Y., 391, Ibid. 453, Selden J; Cooleys Const. Lim., 1st Ed., 171.
    The legislative act in question relates to railroads and their employes. Railway v. Railway, 30 Ohio St., 614.
    The legislative act is a valid exercise of the police power of the state; a power defined to be inherent and plenary, enabling it to prohibit all things hurtful to the comfort, safety, and welfare of society.
    When applied to railroads, owing to the dangers incident to their operation, this right of police regulation should be full and adequate; and it is the province and right of legislature's to judge what shall be prohibited and what required. Cooley’s Const. Lim., 1st Ed. 574; Palmer v. State, 39 Ohio St., 238; R. R. Co. v. Spangler, 44 Ohio St., 471.
    The legislature has the right within constitutional requirements to decide for itself what is for the public good. Cooley’s Const. Lim., 1st Ed. 129; 46 Ohio St., 452.
   Spear, J;

The ruling of the common pleas on the demurrer is assailed on the ground that the contract set up is invalid because: 1., It is prohibited by the act of April 2, 1890, 87 Ohio Laws, 149, “for the protection and relief of railroad employes,” etc; 2. Because it is against public policy; 3. For want of mutality;and 4. For want of consideration moving from the company to Cox for the agreement to release claims for damages.

In support, of the second defense, it is insisted that the act of April 2, 1890, as to the clauses referred to, is uneoustitutional because it strikes down the voluntary right to contract; that the contract is not in fact against public policy, whether declared so by the statute or not, and that the mutual beneficial stipulations and averments of fact abundantly show both mutuality and consideration.

1. It would be a needless waste of effort to discuss the constitutional question propounded, unless, upon an examination of the contract and the statute, it shall be found that such a contract is among those forbidden. First, therefore, we give attention to that inquiry.

The part of the statute to which attention is directed is the following:

“And no railroad company, insurance society or association or other person, shall demand, accept, require or enter into any contract, agreement, stipulation with any person about to enter, or in the employ of any railroad company whereby such person stipulates or agrees to surrender or waive any right to damages against any railroad company, thereafter arising for personal injury or death, or whereby he agrees to surrender or waive in ease he asserts the same, any other right whatsoever. ”

To what sort of a contract does this language apply ? It is to be assumed that the legislature intended to confine its action in forbidding the making of contracts upon sabjects in themselves lawful, by persons sui juris, to such contracts as are inimical to the state, that is, against public policy, for the right to contract is one not given by legislation, but inherent, necessarily involved in the ownership of property and as a primary prerogative of freedom, (2 Wharton on Contracts, section 1061), and we should not construe the words of an act so as to restrain this right, where the conflict with public policy is not clear, unless the language will bear no other construction. As to the first clause perhaps it is sufficient to say that it clearly appears the contract does not come within the terms of the inhibition, for the reason that the employe does not therein agree to waive a right to damages thereafter arising for personal injury or death. He agrees simply that he will elect after the injury is incurred, which form of recompense he will demand.

In what essential does the second clause differ from the first? It is the same in effect as though it should be worded: “or .whereby, in case he asserts his right to sue the company for personal injury or death, he agrees to surrender or waive any other right whatsoever.” He may not stipulate that, in case' he sues the company for damages for personal injury, he will surrender any other right. What here is meant by the term “right?” Does it mean any fanciful claim which an ingenious person may invent, or does it mean a tangible legal right, one resting on contract or in tort, which would be recognized and enforced by law? Common sense would say, it seems to us, that it means the latter. This leads to an inquiry as to the character of the right which is secured to an employe who becomes a member of the “voluntary relief department,” and entitled to the benefits of the “relief fund.” If the contract be valid it gives to the member a right, in case of disability on account of hurt or sickness, to receive certain payments from the relief fund so long as the disability continues ; but, as a condition of the exercise of this right, and as a modification of it, the member must disclaim any right to pursue the company in whose employ he is for • damages arising from the injury. That is, the right to the benefits is not, by the terms of the contract, an absolute right. It is, at best, a contingent right; and, if this be so, then it is not, unless the stipulation is to be overthrown as against public policy, a legal right after the party has elected to sue the company, which the law recognizes and will enforce, for the law will not enforce as an ultimate right, a claim which rests upon a condition which is repudiated by the party making the claim. Perhaps the point would be clearer if the party had, without accepting benefits, recovered • against the company and then sought to recover also the benefits against the fund. No one could possibly suppose, in such case, that his right to recover was absolute, or could in any aspect have a legal existence, or become the subject of a waiver, if the party’s own contract is to ' be observed. This for the reason that he has no other right to surrender or waive, because the moment he asserts the right to sue the company, the other which is hut aright inchoate, by the very terms of the contract which gave it existence, disappears.

And if the rig’ht is not an absolute one in the one case how can it be in the other. Putting the con’ elusion in a sentence, the "second inhibition is not essentially different from the first; it is but an extension of it. That applies only to waiver of a right to damages arising from personal injuries or death; this extends to all rights whatsoever. But, in any case, the law contemplates a legal right.

Taking the statute as a whole; the contract inhibited is a contract which, by its terms, waives the right of action on the part of the employe, while the contract in question does not seek to waive the right of action, but expressly reserves it, and only gives to his election of remedies made after the injury, the effect of a waiver of the other remedy. To deny such a right would be to deny the right to settle controversies. The law favors the exercise of this right; it does not disapprove it.

The contract in question in Railway Co. v. Spangler, 44 Ohio St., 471, is of a. class prohibited bv this statute. In that case is was held that: “The liabilities of railroad companies for injuries caused to their servants by the carelessness of other employes who are placed in authority and control over them, is founded upon considerations of public policy, and it is not competent for a railroad company to stipulate with its employes at the time, and as a part of their contract of employment, that such liability shall not attach to it.”

We think the contract set up in the answer is not fairly within the inhibitory terms of the act, when reasonably construed, and this conclusion makes it unnecessary to consider the question of the unconstitutionality of the statute.

2. Is the contract itself against public policy? To be so, it must, in some manner, contravene public right or the public welfare. It must be shown to have a mischievous tendency, as regards the public. And this should clearly appear. The ground urged is that it tends to make the company' less careful in the operation of its road; in other words, it encourages negligence. And if it be of that character, then it would contravene public policy and be void, in that it would have a tendency to induce the employment of men less prudent and careful, which would tend to endanger the property, and the lives of travelers, as well as of its employes. But this claim arises, we think, from a misconception of the contract; in assuming that, by the contract, the employe releases some future right of action against the company. On a previous page we have undertaken to show that such is not the case; that there is no waiver of any cause of action which the employe may become entitled to, and that it is not the signing of the contract, but the acceptance of benefits after the accident, that constitutes the release. When that occurs he is not stipulating for the future; he is but settling for the past. He accepts compensation for injury already received. A controlling distinction between Railway Co. v. Spangler, supra, and this ease is that in that ease the party bargained away his right to an action in advance, while in this case he retains whatever right of action he may have until after knowledge of all the facts. Then he elects between the relief fund and the treasury of the company; between a relief sure, immediate and continuous, and one depending upon the hazards of litigation and certain to be delayed. If he is injured and the company is not liable, (a condition which follows in much the larger proportion of the accidents to employes on railroads) he* may accept the benefits; if the company is liable, he may decline benefits and sue. How can this injuriously affect the public? Is it not, on the other hand, a wise and humane provision for many of a class whom, without it, when sicjr or injured, would be compelled to look to public charity for aid? And does it not hold out an incentive to faithful, efficient service by encouraging expectation of benefits when the member becomes suxDerannuated, and encourage economy and thrift by laying up something against a time of need?

We fail to see how the contract, taken as a whole, encourages the employment of careless men. Those who apply for membership in this relief fund must not be over forty-five years of age, and they must pass a satisfactory medical examination. Thus, feeble men, and those made infirm by old age, are likely to be excluded, and a class of active, healthy men selected for the control of those operations of the road that require skill and care, all of which manifestly have a tendency to secure, in the interest of the public, competent service. and watchful vigilance. It cannot . be said that the beneficial feature of the contract tends to make the employe less careful, and, therefore, is inimical to the public, for to do so would be to condemn the whole theory of insurance, and especially that relating to fire and accident. Nor' is the contract a compulsory one. It is entered into voluntarily. If the employe conceives it to be for his interest to enter the relief class, he applies for the privilege; if not, he, with like exercise of his own judgment, stays out.

The liberty of contract, being one of those rights secured by our constitution, is not to be restrained upon any insufficient or mere fanciful conceit of what may possibly happen. The citizen who is sui juris has a right to make a contract beneficial to himself when neither immoral, fraudulent nor illegal, and he should not be restrained in the exercise of such, right unless the public welfare clearly compels it. Nor should the employment of corporate capital, where its use is for beneficial purposes, be interfered with unless the public welfare clearly demands such interference. If the laborer, having in mind the future, and desiring to provide against a condition of sickness or accident, joins a beneficial association having insurance features, and devotes a portion of his monthly earnings to that purpose; and if on the other hand, the corporation, actuated by a desire to advance its material prosperity by attaching its employes the more firmly to its interests, and by the humane purpose of contributing from its earnings, to their personal welfare, or acting from any other motive, good or bad, becomes a party to such contract, and renders, in effort and money, valuable assistance in effecting its beneficial purposes, why should the law assume, unreasonably and arbitrarily, to deny the exercise of these rights? We think it should not, and we fail to perceive how the contract in question contravenes any interest of the public. .Contracts similiar in every essential particular have been sustained by the courts of Pennsylvania, Maryland, Indiana, Iowa and Nebraska. Graft v. R. R. Co., 8 At. Rep., 206; Johnson v. R'd Co., 163 Pa, St., 127; Ringle v. Penna. R. R., 164 Pa. St., 529; Fuller v. B. & O. Employes' Relief Assn., 67 Md., 433; Leas v. Penna. Co., 37 N. E. Rep., 423; Donald v. Ry Co., 61 N. W. Rep., 971; C., B. & Q. Rd Co. v. Bell, 44 Neb. 44. See also Owens v. B. & O. R. R. Co., (C. C., S. D, of Ohio), opinion by Sage, J., 35 Fed. Rep., 715; Martin v. B. & O. R. R. Co., ( C. C., D. of West Virginia), 41 Fed. Rep. 125; Otis v. Penna. Co. (C. C. D. of Indiana) 71 Fed. Rep., 136; Shaver v. Penna. Co., (C. C., N. D. of Ohio) opinion by Ricks, J., 35. W. L. B., 106 ; Bailey’s Master’s Liability for Injuries to Servants, 480; B. & O. R. R. Co. v. Bryant, 9 Ohio C. C., 332; and Griffith v. The Earl of Dudley, 9 L. R. Q. B., 357; 3 Elliott on Railroads, 2156, 2158.

3. Nor is the contract void for want of mutuality, nor for lack of consideration. Moved thereto by the stipulations of the employe members, the company assumes the obligation to take charge in part of the administration of the association, to pay all its operating expenses,to take care of its funds, pay interest thereon, and be responsible for their safe keeping, and to make appropriations to supply any deficiencies. The promises are concurrent and obligatory upon both ; both promise and both pay in consideration of promises and payment by the other, and the fact that third persons are interested does not impair the force of the obligation. If these stipulations do not supply consideration it would be difficult to frame such as would; and there being express assent to the terms of the contract by both parties, the element of mutuality is not wanting. The law upon this subject in Ohio is too well established to need elaboration. Judy v. Louderman, 48 Ohio St., 562. See also Leas v. Penna. Co., supra, and Otis v. Penna. Co., supra.

Our conclusion is that the contract set up is not interdicted by the statute, and that it is neither against public policy, nor void for want of mutuality or consideration.

Judgment of the circuit court reversed and that of the common pleas affirmed.