text:
    The Ann Arbor Railroad Company v. Addison.

      Competent for railroad companies — In contracts facilitating movement of trains — To incur liabilities for injuries to employes— Contracts can not be extended beyond terms, when.

    While it is competent for railroad companies, in contracts to facilitate the movements of trains in the conditions which obtain at crowded terminals, to incur liabilities for injuries to the employes of other companies resulting from the negligence of their own employes, such contracts may not, by construction, be extended to movements of trains beyond the scope of their terms.
    (No. 11817
    Decided May 31, 1911.)
    Error to the Circuit Court of Lucas county.
    Addison brought suit in the court of common pleas against the Toledo Railway & Terminal Company, the Detroit & Toledo Shore Line Railroad Company and the Ann Arbor Railroad Company, to recover on account of personal injuries sustained by him while acting as baggageman on a train of the Pere Marquette Company. At the conclusion of the evidence counsel for' Addison voluntarily dismissed the action as to the Terminal Company, and the court directed a verdict in favor of the other two companies. A judgment in favor of the Ann Arbor Company on the verdict sc directed was reversed by the circuit court, and this is a proceeding in error by the Ann Arbor Company for the reversal of that judgment of the circuit court.
    The Pere Marquette Company is the successor of. the Monroe Company. The location of the tracks and the trackage relations of the several

      companies, as well as the place where Addison sustained his injury, will be made clear by attention to the accompanying diagram and explanation .

    The Terminal Company, as its name, indicates, serves to facilitate the entrance of the trains of other roads into, and their passage around, the city of Toledo. The site is where the tracks of the other roads named, as they approach Toledo from a northerly direction reach the track of the Terminal Company. By the side of the Ann Arbor track near the crossing of the Terminal tracks is a tower, from which a towerman controls an interlocking system, by which trains on the Pere Marquette may be shunted to the track of the Terminal Company, or to the track of the Ann Arbor Company. The train which Addison was working as a baggageman, when he received his injury, approached from the north, and was by the towerman admitted to the Ann Arbor track, and then shunted by the “Y” on to the track of the Terminal Company. As the train proceeded southwardly on the Terminal track, after it had crossed the Ottawa river, having passed entirely beyond the track of the Ann Arbor Company and at point “A,” it collided with a derelict caboose standing on the Terminal track and in the collision Addison was injured. Shortly before the approach of this train a freight train of the Shore Line Company passed northwardly on the Terminal track over the Ottawa river, and thence westerly over the Ann Arbor track, and while so passing it parted, leaving its caboose on the Terminal track at point “A.” The towerman failed — negligently it may be assumed — to observe the absence of the rear lights of the Shore Line train, which would have indicated a complete train, and thus thinking that the Terminal track was clear passed the Pere Marquette train upon it.
    Only the liability of the Ann Arbor Company is here in question, and the allegations of the petition respecting it are, in substance, that the Ann Arbor Company maintained and operated an interlocking system, including the tower occupied by the towerman who operated the system; that it was the duty of that company, and of the towerman to give signals to all the trains of the Pere Marquette Company passing over the tracks of the Ann Arbor Company and the Terminal Company at the point, and not to permit any train of the Pere Marquetté to enter upon the tracks of the Terminal Company over or from the tracks of the Ann Arbor Company while the tracks of the Terminal Company were occupied. That on November 4th, plaintiff being engaged in his duties as baggageman on the passenger train of the Pere Marquette road, which had left the tracks of the Pere Marquette Company and passed on to the tracks of the Ann Arbor Company and on to the tracks of the Terminal Company, the tracks of the Terminal Company ahead of the train were involved and obscured by darkness; that the towerman passed the train on to the Terminal Company’s track, although a short time before a Toledo Shore Line train passing over the Terminal track had parted, leaving the rear end of the train standing on the track of the Terminal Company, whence the collision occurred; that the absence of lights on the rear end of that part of the train which passed the tower was not noticed by the towerman; that all the train had not passed and it was, therefore, the duty of the towerman to refuse the Pere Marquette train entrance upon the Terminal track.
    The Ann Arbor Company in its answer admits that with its knowledge and consent the Pere Marquette Company was operating trains over the designated portion of its road, and that there was an interlocking system established and maintained at the intersection of its track with that of the Terminal Company, and that the towerman was employed there. It substantially denies all the other allegations of the petition.
    Upon the trial a contract between the Monroe Company and the Ann Arbor Company was introduced in evidence. It provided for the passage of Pere Marquette trains over the track of the Ann Arbor Company to the local Terminal station in the city of Toledo. It defined the terms upon which the Ann Arbor track for that purpose should be occupied by trains of the Pere Marquette Company and it defined, so far as it was deemed necessary, the relation of those two companies in such . operation of the trains of the Pere Marquette Company over the Ann Arbor Company’s tracks to the city of Toledo. It contained no stipulation whatever to the operation of. cars or trains over the track of the Terminal Company. By the entire evidence it was shown that the train upon which Addison was injured was not operating under this contract over the track of the Ann Arbor Company to the Cherry street station, but was passing over the track of the Terminal Company to its station in Toledo, and this was under an arrangement between the Terminal Company and the Pere Marquette Company, which, the record does not disclose. There is no evidence in the record showing any duty or obligation of the Ann Arbor Company with respect to the passage of the Pere Marquette Company’s trains over the track of the Terminal Company.

      Upon this state of the evidence, the plaintiff having voluntarily dismissed the Terminal Company from the action, the common pleas judge directed a verdict in favor of the Ann Arbor Company.

      Messrs. Smith & Beckwith, for plaintiff in error.
    If the proximate cause of the accident was the act of the towerman in passing the Pere Marquette train over on to the Terminal Company track, we submit that in so doing he was not acting in any sense for the Ann Arbor Company. The Ann Arbor Company had no right to the use of the Terminal track or the connecting “Y.” It had no right or authority to permit the Pere Marquette train to pass on or over the “Y” connection on to the Terminal track.
    The Ann Arbor Company owed no duty to the Pere Marquette Company under its contract to protect its trains against accident on the Terminal track, nor to see to it that such track was clear for the Pere Marquette train to operate on or over after leaving the Ann Arbor track. Whatever precautions were needed for this purpose must be provided by the two companies in interest, viz., the Terminal Company and the Pere Marquette Company.
    But if the court shall be of opinion that the towerman was in the matter complained of acting as the servant of the Ann Arbor Company so as to make that company responsible for his acts, still we say that company is not liable. For in such case under the contract between the Ann Arbor Company and the Pere Marquette Company the plaintiff and the towerman are surely fellow-servants.
    It will not be questioned that a towerman, as such, is ordinarily a fellow-servant of trainmen. He is only an “exalted switchman.” Such was the holding of this court in the case of Railway Co. v. Burtscher, 74 Ohio St., 523.
    Functionally, therefore, the towerman and trainman are fellow-servants.
    But does the fact that the towerman is also an employe of the Ann Arbor Company, paid by it for his services,, coupled with the right (assumed, be it always remembered, solely for the sake of this argument) on the part of the Pere Marquette Company under its contract to use the services of the towerman in getting its trains off the Ann Arbor track, a service in which the Pere Marquette was certainly chiefly if not solely interested, have the effect of making this towerman in the eye of the law as between these two companies the sole and exclusive employe of the Ann Arbor Company and not in any sense the servant of the Pere Marquette Company?
    We submit that such effect would hardly have been thought of except for the purpose of making the Ann Arbor Company liable in this action.
    The case is similar to those in which an employer lends his servant to another for some particular purposes, in which case while he remains the general servant of his employer he must be dealt with in respect of the special employment as the servant of the man to whom he is lent. In such case, if the original employer parts temporarily but completely with his power of control he would not be liable for injuries resulting from the negligence of the servant. Byrne v. Railroad Co., 61 Fed. Rep., 607; Powell v. Construction Co., 88 Tenn., 692.
    If the Ann Arbor Company was the employer of the towerman in reference to the matter in hand, surely the Pere Marquette Company was also such employer. Manufacturing Co. v. Rahn, 132 U. S., 518.
    In Bosworth v. Rogers, 82 Fed. Rep., 975, it is said that the power to discharge is a “sure test” of the relation of master and servant.
    In this contract the Pere Marquette Company stipulated for and got the right to use the services of a joint employe in doing its work, precisely as if for the time being he was its separate employe'. And it had the' same right to discharge him. It thus' retained control over the manner in which each such employe did his work.
    The towerman being a servant of the Pere Marquette Company is a fellow-servant of the plaintiff.

      Mr. Harry Levis on, for defendant in. error.
    Plaintiff in error contends, as a second proposition of law, that the plaintiff below and towerman are fellow-servants. Of course this contention is absolutely inconsistent with and contradictory of the contention that the towerman'was acting as a Terminal employe. On this proposition, we confidently submit that the numerous authorities hold practically unanimously that they were not fellow-servants.
    Counsel argues that the towerman was the employe or servant of the Pere Marquette Company because the contract says. that the words “joint employes” whenever the same are used in this contract shall be construed to mean all laborers employed in the maintenance or care of the tracks or machinery used jointly. We súbmit that this contract does not make but simply calls him a joint employe and that the Ann Arbor and Pere Marquette companies can not fix an ethploye’s status or rights in law simply by agreeing between themselves to give him a certain name or by agreeing that he shall be placed in a certain class to which a certain term shall be applied. The status of a laborer as an employe or servant is fixed by the nature of his duties - and relations. The contract might just as well have provided that a Pere Marquette bookkeeper in Detroit should be construed to be a fellow-servant of an Ann Arbor bookkeeper in Toledo.
    The power of control is the test of liability and of the relation of master and servant. Brady v. Railway Co., 114 Fed. Rep., 100; Gravatt v. State, 25 Ohio St., 162.
    As to the rule of respondeat superior, see Clark v. Fry, 8 Ohio St., 358; Cotter v. Lindgren, 106 Cal., 602; 26 Cyc., 966; Grace & Hyde Co. v. Probst, 208 Ill., 147; Manufacturing Co. v. Rahn, 132 U. S., 518.
    It is true that the Pere Marquette Company did arrange a train schedule by conference, and ran its trains accordingly, and did make use of the services of the towerman furnished by the' Ann Arbor Company, and did have the right to ask the Ann Arbor Company to discharge him, but by none of these things did .it “control the manner of doing the work,” nor did these things give it supervision or direction over him, as all of the decided cases show.
    Servants of two different masters cannot be. made fellow-servants merely by agreement of the masters, especially where they are not aware of any such agreement. There is nothing in the entire record to show that the plaintiff had any knowledge of. the terms of the Ann Arbor-Pere Marquette agreement. Railway Co. v. Kelley, 4 Colo. App., 325; Railroad Co. v. State, 58 Md., 373; Chamberlain v. Pierson, 87 Fed. Rep., 420; Railroad Co. v. Martin, 113 Tenn., 266; Robertson v. Railroad Co., 160 Mass., 191; 26 Cyc., 1284, 1285, 1286; 12 Am. & Eng. Ency. Law (2 ed.), 993.
    A case exactly in point is Smith v. Railroad Co., 19 N. Y., 127; Bosworth v. Rogers, 82 Fed. Rep.; 975; Jennings v. Railway Co., 29 App. D. C., 219.
    The general rule in New York is stated in Hurl v. Railroad Co., 73 N. Y. Supp., 1042; Railroad Co. v. Vandenberg, 164 Ind., 470; Strader v. Railroad Co., 86 Hun, 613; Sawyer v. Railroad Co., 27 Vt., 370; Railway Co. v. Easton, 2 Tex. Civ. App., 378; Iron Co. v. Lea, 144 Ala., 169; Morgan v. Smith, 159 Mass., 570; Railroad Co. v. Conroy, 63 Miss., 563.
    One of the leading cases is Zeigler v. Railroad Co., 52 Conn., 543; the facts are peculiar and the relation of fellow-servants and of master and servant are clearly discussed. Erickson v. Railway Co., 171 Mo., 649; Baker v. Railway Co., 149 Fed. Rep., 882; Buchanan v. Railway Co., 75 Ia., 393; Railroad Co. v. Martin, 113 Tenn., 266; Railroad Co. v. Craft, 69 Fed. Rep., 124; Phillips v. Railway Co., 64 Wis., 475; Lockhart v. Railway Co., 40 Fed. Rep., 631; Railroad Co. v. Stoermer, 51 Fed. Rep., 518; Kastl v. Railroad Co., 114 Mich., 53; Swainson v. Railway Co., 3 Exch. Div., L. R., 341.
    The Ann Arbor Company controlled him; the entire contract gives this company control over all the employes who are classified under the term “joint emploj'-es.” All the provisions of the contract clearly show that there is no joint control.
    The Pere Marquette Company had the right to request the Ann Arbor Company to dismiss the towerman; but this did not control him. If the Ann Arbor Company complied with the request,' his services were dispensed with; but it was-first necessary for the Ann Arbor Company to comply with the request, and the dismissal or discharge came from the latter company. He .could be discharged only by his master or employer. Suppose the Ann Arbor Company refused or failed, for some reason, to comply with the request; could the Pere Marquette Company then dismiss, discharge or control him? It might have some other remedy or recourse, but it could not dismiss or control. Railway Co. v. Kelley, 4 Colo. App., 325.
    To constitute the relation of fellow-servants, the servants must be under the same master and the employment must be one having a common object. Hardy v. Railroad Co., 57 N. J. L., 505; Railroad Co. v. Hardy, 59 N. J. L., 35; Good v. Johnson, 8 L. R. A., N. S., 897; McKinney on Fellow-Servants, Sec. 18; Sprague v. Smith, 29 Vt., 421; Sul

      livan v. Railroad Co., 44 Hun, 304, 20 N. E. Rep., 569; Quinn v. Construction Co., 46 Fed. Rep., 506; McGatrick v. Wason, 4 Ohio St., 566; Railroad Co. v. Armstrong, 49 Pa. St., 186; Jones v. Railway Co., 125 Mo., 666.
   Shauck, J.

This case presents no material question of law with respect to - which counsel differ, or with respect to which it is, believed any lawyers would differ. The differences between counsel and between the courts below seem to concern only the proper statement of the case. Why the original plaintiff voluntarily dismissed from the case the Terminal Company, upon whose track the train was passing at the time he received his injury, is left to conjecture. The only question here is, whether the Ann Arbor Company is liable for that injury. There is in the record a contract under which the Pere Marquette Company might have run this train over the Ann Arbor Company’s track to another station in Toledo. If it had been so operated, the construction of the contract between the Ann Arbor Company and the Pere Marquette Company might become material. But in this instance the Pere Marquette Company was not exercising the right which that contract conferred upon it. In that contract are stipulations from which the liability of the Ann Arbor Com-’ pany might be inferred with respect to injuries sustained by trainmen of the Pere Marquette Company on the Ann Arbor Company’s track. It contains no stipulation whatever as to a train moving on the Terminal track, nor is there anything in the record, to show that Ann Arbor Company was a party to the arrangement by which the Pere Marquette Company’s train was passing over the track of the Terminal' Company. Not only is there an absence of 'such evidence, but it affirmatively appears from the evidence that the Ann Arbor Company had no relation whatever to that arrangement. When the trial judge directed a verdict in favor of the Ann Arbor Company, he obviously took account of the considerations that the train was not operated under the contract of the Ann Arbor Company for the passage of the train over its road, and that the contract of the Ann Arbor Company imposed upon it no duty whatever with respect to trains passing into* the city over the track of the Terminal Company. The “Y” by which the train passed from the track of the Ann Arbor Company to that of the Terminal Company was constructed but a short time before this accident, and in so passing and operating its trains, they were pursuing some arrangement between the Pere Marquette and the Terminal companies, which does not appear of record. It is sufficient to say that the record not only negatively, but affirmatively shows that the Ann Arbor Company was not a party to that arrangement. We assume that the view of the case which led the circuit .court- to reverse the judgment upon the verdict so directed was, as stated in the brief of counsel for the defendant in error, that the tower-man was the servant of the Ann Arbor Company. In a general sense he was, and it may be that he acted in that relation so as to charge the Ann Arbor- Company for injuries resulting from his negligence to employes on trains of the Pere Marquette Company passing over the Ann Arbor track under the contract referred to. But to that question we need give no consideration since the injury occurred to one upon a train moving upon another road, under another arrangement with another party.

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

Judgment reversed.

■ Spear, C. J., Davis, Price, and Johnson, JJ., concur.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    Dunlap v. McCloud et al.

      Testator devises all real estate to devisees in trust — By codicil devises part of same to another for life estate — Latter devise is withdrawn from former — Widow elects not to take under will — Dower set off may not disturb life estate devise, when— Residuary ■estate should compensate dower requirements — Rather than specific devise, when.

    1. Where a testator devises all of his real estate to certain individuals in trust and afterwards by codicils devises a part of the same real estate to another person for and during his natural life, such life estate is thereby, ex vi termini, withdrawn from the operation of the trust during the life of the life tenant.
    2. Where the widow in such case elects not to take under the will and demands assignment of her dower as of all the lands of which the testator died 'seized, and it appears that there is land enough to set off the dower without interfering with land specifically devised for life, it should be so done; and it is error to direct that the dower be set off in part in the lands . so specifically devised for life.
    3. While in such case the devisees who are prejudiced by the 'widow’s' election to be endowed of the lands of her husband, are equitably entitled to compensation out of the rejected provisions made for her in the will, yet where the rejected provisions do not fully compensate, the resulting uncompensated loss should fall upon the residuary estate in preference to the specific devises, unless a contrary intention appears from the will.
    (No. 11914
    Decided May 31, 1911.)
    Error to the Circuit Court of Pickaway county.
    The material facts are stated in the opinion.

      Messrs. Abernethy & Folsom and Mr. M. B. Earnhart, fox plaintiff in error.
    We submit that in the assignment of dower, under our statute, the general rule is that “Where the interests of alienees are not involved, and it is apparent to the court that an assignment of dower may be made by giving the widow one tract equal in value to her interest in the several tracts, and that such an assignment will be for the interest of all the parties, or at least will not be prejudicial to any, it is proper for the court to set aside to her a single tract, instead of scattering the assignments over all the tracts.” Sanders v. McMillan, 39 Am. St., 34; Milton v. Milton, 14 Fla., 369; Jones v. Brewer, 1 Pick., 314; Scott v. Scott, 1 Bay (S. Car.), 504; Montgomery v. Horn, 46 Ia., 285; Price v. Price, 41 Hun, 486; Schnebly v. Schnebly, 26 Ill., 116; French v. Peters, 33 Me., 396; Rowand v. Carroll, 81 Ill., 224.

      Mr. Clarence Curtain, for defendants in error Flora E. Timmons and Scott W. Timmons.
    The difficulty in this case does not arise from any provision contained in the will of the testator nor by the refusal of the testator’s widow to elect to take under said will, but from the order of the circuit court in directing that a portion of the widow’s dower should be assigned in real estate specifically devised to Flora E. Timmons. Flora E. Timmons has therefore become a disappointed devisee solely by the action of the circuit court.
    This is a case, however, where, if the circuit court had properly applied the law of election in connection with that of compensation it would have arrived at a different conclusion and would have made a different order from what it did in this case. That doctrine is found in Page on Wills, 875; Re Estate of Vance, 12 L. R. A., 227; Jennings v. Jennings, 21 Ohio St., 56.
    The residuary estate must bear the whole loss caused to the beneficiary by the widow’s election to take against the will, and can not share it with specific legacies if there remains enough to pay the latter, unless there is a plain intention in the will that the residuary legatee is a preferred object of testator’s bounty. Estate of Vance, 12 L. R. A., 227.

      Messrs. McCloud & Lincoln, for defendants in error the trustees under the will of William Heath.
    Unassigned dower is an interest in and not a lien upon the land. An interest that cannot be affected by any act of the husband. His whole real estate is affected and testator has no right to locate the portion of his estate out of which dower shall be assigned. The whole matter is statutory and the' commissioners under the direction of' the court determine the location of the dower. The husband does not own and control it and cannot devise it by will. When he devises any part of the real estate, the dower in that real estate is not affected in any way. It is a legal estate of the widow in decedent’s lands. Jewett v. Feldheiser, 68 Ohio St., 523; Arnold v. Donaldson, 46 Ohio St., 73; Dwyer v. Garlough, 31 Ohio St., 158.
    All devises of the will under consideration are specific.
    A specific legacy or devise is a gift by will of a specific article or part of the testator’s estate, which is identified and distinguished from all other things of the same kind, and which may be satisfied only by the delivery of the particular thing. 18 Am. & Eng. Ency. Law (2 ed.), 714; Georgia Infirmary v. Jones, 37 Fed. Rep., 750; Harper v. Bibb, 47 Ala., 547; Apple’s Estate, 66 Cal., 432; Brainerd v. Cowdrey, 16 Conn., 1; Douglass v. Douglass, 13 App. D. C., 21; Smith v. Smith, 23 Ga., 21; Broadwell v. Broadwell, 4 Met. (Ky.), 290; Bradford v. Bradford, 20 Me., 105; Towle v. Swasey, 106 Mass., 100; Foote, Appellant, 22 Pick., 299; White v. Winchester, 6 Pick., 48; Metcalf v. Framingham Parish, 128 Mass., 370; Tifft v. Porter, 8 N. Y., 516; Crawford v. McCarthy, 159 N. Y., 514; Humphrey v. Robinson, 52 Hun, 200; Starbuck v. Starbuck, 93 N. Car., 183; Ludlam’s Estate, 1 Pars. Eq. Cas. (Pa.), 116; Balliet’s Appeal, 14 Pa. St., 451; Bailey v. Wagner, 2 Strob. Eq. (S. Car.), l; Morriss v. Garland, 78 Va., 215.
    A specific legacy is a particular and specified thing singled out of a particular fund.'
    Every devise of real estate, whether by specific description or by residuary devise is regarded as specific, if the property was owned at the time the will was made. Under the English law it is specific as to real estate after-acquired as well as that owned at the time of making the will, but in the United States it is not specific as to the after-acquired real estate. 18 Am. & Eng. Ency. Law (2 ed.), 720; Kelly v. Richardson, 100 Ala., 584; Blaney v. Blaney, 1 Cush., 107; Hays v. Jackson, 6 Mass., 149; Bridgen v. Cheever, 10 Mass., 450; Farnum v. Bascom, 122 Mass., 282; Humes v. Wood, 8 Pick., 478; Floyd v. Floyd, 29 S. Car., 102; Gallagher v. Redmond, 64 Tex., 622; Lake v. Copeland, 82 Tex., 464, 9 Tex. Civ. App., 39.
    Devises of land are specific. 2 Williams on Executors, *1170; Walker v. Parker, 13 Pet., 166; Healey v. Toppan, 45 N. H., 243; Wallace v. Wallace, 23 N. H., 154; Walton v. Walton, 11 Am. Dec., 469.
    Every gift of land, even as a general residuary devise, is specific. Wyman v. Brigden, 4 Mass., 154; Howe v. Dartmouth, 7 Ves. Jun., 147; Broome v. Monck, 10 Ves. Jun., 605; Milnes v. Slater, 8 Ves. Jun., 305; Nannock v. Horton, 7 Ves. Jun., 399.
    We need not go out of Ohio for the application of these principles. The court below applied the rule as laid down by this court in Jennings v. Jennings, 21 Ohio St., 56, and Wilson v. Hall, 6 C. C., 570, 53 Ohio St., 679.
   Davis, J.

William Heath, late of Madison county, died March 28, 1907, seized of about nine hundred and fifty acres of land situate in the counties of Madison and Pickaway, together with some real estate in the village of Mt. Sterling, in Madison county, Ohio. He also was possessed of personal property amounting to about $42,000. He left a will, which was executed August 11, 1904, by which after several minor bequests and directions, he bequeaths and devises all the residue of his property, real and personal, to certain persons in trust that they should manage and control the same, and out of the income thereof from time to time pay over to his wife Mary (now Mary E. Dunlap, the plaintiff in error) and his only child Flora E. Alkire (now Flora E. Timmons) and his grandson William A. Alkire during each of their natural lives and in the order named “a sufficient amount of money as their necessities require for each of them to live comfortable and have all the necessaries of life, but not to live extravagantly.” He also expressed it to be his intention in so doing to provide “as far as I am able against any contingency and from even their own weakness or improvidence.” He further directed that in case his wife should elect not to take under the will, the trust should continue for the benefit of his said daughter and grandson, and that his wife should not in any way participate in the trust property, but take only what she would be entitled to under the law.

He also directed that in case his wife did not take under the will the trust should terminate on the death of his daughter Flora and his grandson William A. Alkire, and “upon the final termination of this trust, I will and direct that all the trust property and estate shall go to and vest in fee simple in the children or their representatives of my grandson William A. Alkire, per stirpes, and in default of such children or their representatives, then the same is to go to and vest in the Defiance Christian College of Defiance, Ohio, and the Marion Christian College of Marion, Indiana, share and share alike.”

The testator’s scheme of devolution as thus declared was to provide a comfortable support for his wife, daughter and grandson and that at their death “all the trust property and estate” should go to the children of the grandson or their representatives and in default of such heirs to the charities named. This was the sole purpose and the whole extent of the trust.

This scheme was afterwards materially modified from time to time, through three codicils to the will. In the first codicil he bequeaths to his wife $5,000 and directs that she be permitted to reside upon any of the real estate of which he may die seized in addition to the provision for her in the will; and he bequeaths to his daughter Flora (now Flora Timmons) $5,000 and devises to her about two hundred and sixty-three acres of land for her natural life “the same to be in addition to” the support provided in the will. It is evident that the land devised to Flora for her life must be withdrawn from the trust by the codicil, because the enjoyment of the life estate is inconsistent with title in and management and control by, the trustees. The second codicil gives to Flora seventy-three acres more for her life and after her death to her husband for his life, “the same to be in addition” to what he had already given in the will and first codicil. ■ By the second codicil he devises to his wife all of his real estate in the village of Mt. Sterling for her life, the same to be in addition to what he had already given in the will and first codicil. In the third codicil the only change material in the present controversy is in the residuary clause, which is made to read as follows : “Upon the final termination of the trust I will and direct that all the trust property and estate shall go to and vest in fee simple in the children or the representatives of my grandson William A. Alkire, per stirpes, and in default of said children or their representatives, then and in that case one thousand dollars shall be paid to the Defiance Christian College of Defiance, Ohio, and the balance of the trust property and estate shall go to my legal heirs.”

It is apparent from the will and codicils thereto, as they stood at the testator’s death, that his intention was that after the payment of debts and legacies the personal property should remain in the hands of the trustee, to be administered according to the trusts declared in the will; and that all of the testator’s real estate, except the Mt. Sterling property, devised to his 'wife, and the lands devised to his daughter Flora, for her life, should vest, for the purpose of the trust only, in the trustees; and that upon the termination of the trust, namely, upon the death of the testator’s wife and daughter and his grandson William A. Alkire “all the trust property and estate shall go to and vest in fee simple in the children or their representatives of my grandson William A. Alkire,” etc. This seems to. us to be clear beyond reasonable dispute.

Now the widow declined to take under the will and elected to take under the law. There was no “disappointment” in that. She only declined to surrender what the law gave her for what the testator offered her, so that her life support, her life estate in the Mt. Sterling property and the $5,000 legacy remained in the hands of the trustees. She demanded the assignment of her dower in the lands of which her husband, the testator, died seized, and the court of common pleas directed that her dower be set off in that portion of the real estate of the testator not specifically devised to his daughter Flora and to her and her husband, Scott W. Timmons; and this was accordingly done. The trustees appealed from the decree of the common pleas court to the circuit court; and the latter court ordered “that the said plaintiff be endowed of one full equal one-third of the premises described in the petition, in the following manner: First, by giving to plaintiff all the real estate situate in the village of Mt. Sterling, Ohio, as described in the petition as part thereof and after deducting the value of said Mt. Sterling property that the balance of her full one-third part of said premises shall be proportioned between the lands held by the said defendant Flora E. Timmons and the defendants R. H. Schryver, T. E. Riddle, J. N. Waldo and Richard H. McCloud, as trustees under the will of William Heath, deceased.” The circuit court found as its conclusions of law as follows: “that the said Mary E. Fleath (now Dunlap), as the widow of said William Heath, having elected not to take the provisions of said will of William Heath, therein provided for her, the said property in Mt. Sterling, Ohio, became and is rejected property, and that under the proper construction of said will the same should be assigned and set off to her as part of her said dower, and that the residue of her dower should be assigned and set off to her, in the said lands devised to Flora E. Timmons, his daughter, 'and in the said lands devised to said trustees in trust, in equal proportions.”

As it has been intimated already, we regard this judgment of the circuit court as both erroneous and inequitable; but an attempt is made to justify it, apparently on the ground of some supposed application of the doctrine of election and compensation to disappointed donees. The rule was clearly stated a long time ago in the often quoted note to Gretton v. Haward, 1 Swanston R., 441, 443, note a, as follows: “In the event of an election against the instrument, courts of equity assume-jurisdiction to sequester the benefit intended for the refractory donee, in order to secure compensation to those whom his election disappoints.” The same rule was recognized and applied in Jennings v. Jennings et al., 21 Ohio St., 56. The error of the circuit court was not in sequestering the property rejected,by the widow when she elected not to take under the will, but in not stopping with that. The court went beyond the rule and sequestered not only the rejected property, but also a portion of the specific devise of land to Flora Timmons for her life, thereby itself creating the only disappointment or prejudice, in law or equity, which has arisen in this estate, or which by any fair construction of- the will, as we conceive, could arise. There appears to be property enough remaining, after awarding to the widow her rights under the statutes to satisfy all of the remaining legacies and devises in the order of precedence and as directed in the will and codicils. Doubtless the amount of the residuum of the estate would be reduced by the election of the widow to take under the statute and the payment to her of her distributive share of the personalty; but that is where the uncompensated loss ultimately should fall, unless it is otherwise indicated in the will. Estate of James M. Vance, deceased, 141 Pa. St., 201; Trustees of Church Home v. Morris, 18 Ky. Law Rep., 384; Treasy v. Treasy, 18 Ky. Law Rep., 387; Chamberlain v. Berry’s Exr., 22 Ky. Law Rep., 44. But there is’no indication of such an intention here. The' testator has provided that the trust shall not terminate until the three persons who are the objects of his especial solicitude are all dead and that then all the trust property and all of his estate shall vest as provided in the residuary clause. Until that time residuary legatees and devisees have no claim on the property, but when that time shall come all the dower land of the wife, all the life estate of the daughter, and all the trust property, real and personal, will have become integral parts of the residuary estate which shall vest as the testator has directed.

Our view is that the dower of the plaintiff in error should, as near as practicable and as may seem to be consistent with the rights of all the parties interested, be set off to her in one body and without disturbing or interfering with any of the land devised to Flora E. Timmons for her life or for her life and that of her husband; and therefore the order and judgment of the circuit court is

Reversed.

Spear, C. J., Shauck, Price, Johnson and Donahue, JJ.,_ concur.


author: Spear, C. J.

text:
    Allen v. Smith.

      Jurisdiction of courts of common pleas — Fixed by statute under section four of article IV, of constitution — General Assembly may determine venue of civil actions — Validity of section 33 of act of May 11, 1908 — To regulate registration, etc., of automobiles — Actions resulting from negligence of owners — Summons may issue from resident county of party injured — To resident county of party defendant.

    1. The jurisdiction of the courts of common pleas of the state is, by force of section four of article IV of the constitution, fixed by statute.
    2. In the exercise of the power of the general assembly to confer jurisdiction on such courts, it is within the competency of that • body to fix and determine the venue of civil actions. And so long as, by the exercise of that power, no party is deprived of any constitutional right, the'courts will not interfere with the will of the general assembly as thus expressed.
    3. Section 33 of the act of May 11, 1908 (99 O. L., 538), entitled: “An act to provide for the registration, identification and regulation of motor vehicles,” which provides that actions for injury to person or property caused by the negligence of the owner of any automobile, may be brought by the party injured against such owner in the county where such injured party resides, and that summons may issue to the sheriff of any county within the state wherein the defendant resides, to be served as in other civil actions, is a constitutional and valid exercise of legislative power. -
    (No. 12706
    Decided May 31, 1911.)

      Error to the - Circuit Court of Fayette county.
    The plaintiff in error, Frank M. Allen, filed a petition, February 5, 1910, in the court of common pleas of Fayette county, against the defendant in error, T. T. Smith, to recover damages incurred by reason of the alleged negligence of the defendant in the driving of an automobile. It was averred in the petition in substance that on December 2, 1909, while the plaintiff was driving his horse and buggy in a public highway in said county, the defendant, who is a resident of ITighland county, Ohio, recklessly, wantonly, negligently and unlawfully drove his automobile on the said highway in the direction of plaintiffs horse and buggy and so near thereto as to frighten the horse and cause him to overturn the buggy, thereby inflicting serious injury upon the person of plaintiff.
    Thereupon summons in usual form was issued to the sheriff of Flighland county, which was duly returned by the sheriff of that county with the endorsement that he had personally served the same on the defendant.
    On March 3, following, the defendant, appearing for the purpose of his motion only, filed a motion to quash and set aside the summons and the service and return thereof for the reason that such part of section 33 of the act of May 11, 1908, Laws of Ohio, which authorizes the issuing of summons to the sheriff of any county other than that in which such action is brought, is unconstitutional.
    On hearing, the motion being found well taken was sustained, and the summons and service thereof ordered quashed and vacated. This order' and judgment was affirmed by the circuit court. Plaintiff, by this proceeding in error, seeks a reversal of the orders and judgments below.

      Mr. H. H. Sanderson and Mr. John Logan, for plaintiff in error.
    The jurisdiction of the court of common pleas is a matter of legislation. Stevens v. State, 3 Ohio St., 453; State, ex rel., v. Rabbitts, 46 Ohio St., 178; State v. Shaw, 43 Ohio St., 324.
    We think the question for review here is necessarily determined by the decision in Snell v. Railway Co., 60 Ohio St., 256.
    In order to test the validity of this act, in respect to 'the classification assailed, we ask consideration of a few decisions of this court. State v. Nelson, 52 Ohio St., 88; Marmet v. State, 45 Ohio St., 63; State, ex rel., v. Ellet, 47 Ohio St., 90; Adler v. Whitbeck, 44 Ohio St., 539; Senior v. Ratterman, 44 Ohio St., 661.
    A line of cases decided by this court must demonstrate that the objection is to the discrimination, rather than to the classification. Typical of the cases is State v. Hogan, 63 Ohio St., 20
    Section 1 of the “Automobile Law,” as amended March 9, 1909 (100 O. L., 72), and sections 14, 15 and 16 of said law (99 O. L., 541), are valid enactments.
    Statutes providing where an action may be brought, and how service may be obtained, are remedial, and to be construed so as to advance', the remedy provided therein.. Section 11277, General Code (sec. 5028, Revised Statutes); Osborn v. Lidy, 51 Ohio St., 90.
    It is not essential to the validity of remedial statutes that they include every person who by any possibility may fall within the class to be affected. Likewise of police regulations. Railway Co. v. Horstman, 72 Ohio St., 95; State v. Gravett, 65 Ohio St., 289; In re Bachtel, 11 C. C., N. S., 537.
    There is no public policy which warrants a judicial declaration of invalidity of a statute, unless it clearly violates 'some constitutional provision. Probasco v. Raine, 50 Ohio St., 378.

      Messrs. Wilson & McBride, for defendant in error.
    The legislature in the exercise of its police powers undoubtedly has the right, in a proper manner, “to provide for the registration, identification and regulation of motor vehicles,” in order to safeguard the citizens of the state as against any reckless or improper use thereof, but this statute does not cover any such conditions. Its object is to provide a different means for the enforcement of the payment of the debt of the owner of an automobile, and that too without regard to whether the negligence of the owner has any connection with his use or operation of such a vehicle or not. The only requirements in the statute to render one amenable thereto, are, that he owns an automobile and that he be negligent. In other words, it has nothing whatever to do with the regulation of the automobile, or the owner’s use thereof, but is simply an arbitrary classified mode of enforcing a civil liability against the owners of automobiles included within the act, a burden visited upon the person who may be the owner thereof, to which other citizens doing the same things are not subjected.
    All reasons' which apply for such legislation as to one class, apply equally to the other, and according to the general trend of the decisions of the Ohio courts on this and kindred subjects, classifies such, legislation as arbitrary, unreasonable and unjust, and in violation of the equality clauses contained in the constitution of our own state, and that of our Federal Constitution. Hoblit v. Gorman, 8 N. P., N. S., 273; Feasel v. State, 6 N. P., N. S., 323.
    So in the case at bar, we have on the one hand a burden and requirement imposed on' owners of certain motor vehicles to answer a summons in a foreign county, while on the other hand operators of the same vehicle and owners of other motor vehicles who are not required to do so.
    The statute in question was not enacted in the exercise of the police powers of the legislature, but for the enforcement of the payment of a civil liability or debt. The distinction between such statutes is clearly defined by the supreme court of the United States in a case where the validity of a statute was involved, which provided that in certain cases a railroad company was required to pay the attorney fee of the opposing litigant. Railway Co. v. Ellis, 165 U. S., 150.
    The syllabus in Yeazill v. State, 20 C. C., 646, is somewhat analogous to the case at bar and closely defines our contention. Coal Co. v. Rosser, 53 Ohio St., 23.
    The rule of proper classification is given in Williams v. Donough, 65 Ohio St., 499.
   Spear, C. J.

The ultimate question presented by the record relates to the jurisdiction of the court of common pleas of Fayette county over the person of the defendant Smith. This question is raised by the motion of defendant to quash the summons and service thereof, which, if properly sustained, determined effectually the question of jurisdiction and ended the case. The ground of that motion is that the act of May 11, 1908, which assumes to authorize the bringing of such action in Fayette county and the issuing of summons to Highland county, and its service by the sheriff of that county is unconstitutional.

Section 33 of the act provides: “All actions for injury to the person or property caused by the negligence of the owner of any automobile included within the provisions of this act, may be brought by the party injured against the owner of such automobile in the county wherein such injured party resides. In case such action is begun, a summons against any defendant or defendants shall be issued to the sheriff of any county within the state of Ohio, wherein such defendant or defendants reside, to be served upon such defendant or defendants, as in other civil actions, any law to the contrary providing for the service of summons in civil actions notwithstanding.”

The first section of the act defines what vehicles are included within the scope of section 33 of the act, and practically confines its effect to the vehicles popularly known as automobiles. The fifth section includes as owner any person renting a motor vehicle for a period greater than thirty days.

The main attack upon this act, made by counsel for defendant in error, when reduced to its last analysis, is based upon the proposition that a party defendant to a suit in a county of the state has a constitutional right to be sued, if sued at all, in the county of his residence. This has not been understood to be the law. The fact that some provisions of statute aim to secure this result by no means establishes that it is based upon a constitutional right. On the contrary, beginning with the first practice acts and continuing down through the code of civil procedure, and followed by the numerous amendments, revisions and codifications to this date, the general assembly has assumed the power of legislating respecting the venue of actions and prescribing the county' or counties in which certain actions may be brought, and the county or counties in which certain other actions may be brought, many of which provisions permit the bringing of actions in counties other than those of the residence of the defendant or defendants, and this legislation has been so generally acquiesced in, and so constantly recognized by the courts as valid, that it. is necessary to refer only to the sections of the Revised Statutes, from 5019 to 5031, providing “Where actions to be brought,” and the decisions there cited, to make plain that a provision of statute ■which permits a party plaintiff to maintain an action against his adversary in a county other than the one in which such defendant resides has not been regarded as an invasion of any constitutional right. The power to thus legislate is unquestionably lodged with the general assembly. As held in Handy v. Insurance Co., 37 Ohio St., 366: “The county in which actions are to be brought, as well as the mode of acquiring jurisdiction by notice to defendants, is regulated by statute.” Whether or not this power is always wisely exercised; whether it always brings perfectly fair' results, and whether such legislation is entirely reasonable, it is not important for us to inquire: once the power to legislate on the subject and determine the venue of actions is found to exist in the general assembly, the wisdom of its exercise is not a judicial question. Of course, if in the method of its exercise, that body enacts a statute which is plainly, manifestly; and beyond a reasonable doubt, obnoxious to the charge of depriving a party of any constitutional right, then the statute is to be ignored, but a mere difference of judgment between the body and the courts relating to the wisdom of its action affords no ground for interference with the enforcement of its legislative acts.

The statute does not invade section 16 of the Bill of Rights, cited by counsel, which provides that all courts shall be open, and every person, for an injury done him in his land, goods, person,, or reputation, shall have remedy by due course of law, because full and adequate jurisdiction over the subject-matter is given by general legislation to all of the courts of common pleas of the state, and thus adequate remedy by due course of law is afforded. Nor, for the same reason, does the statute deprive any person of property without due process of law or deny to him the equal protection of the laws. A fair trial in a court of competent jurisdiction is accorded to all alike who are in the same category and having a like cause of action or defense. Hence the act does not lack uniformity of operation throughout the state. As a general rule the statutes require that actions against individuals must be brought in the county where the defendant resides or may be personally served with process, but it does not follow that the general assembly is without power to make exceptions. This phase of the contention seems to be entirely covered by the decision of this court in Snell v. The Cincinnati Street Railway Co., 60 Ohio St., 256, which involved the validity of section 5033, Revised Statutes, which section provides for a change of venue “when a corporation having more than fifty stockholders is a party in an action pending in any county in which the corporation keeps its principal office,” etc., etc. The act in r'eview in that case was, as is the act in review in this case, assailed on the ground of unconstitutionality because it applies an exceptional rule, a rule different from that applicable to parties in other actions, and one not equally applicable to both parties in the same action, and thus denies to such corporation the equal benefit and protection of the law, and remedy by due course of law. The court’s answer to this proposition was, as is our answer to the like proposition in the case at bar: “It has never been regarded as essential to the validity of remedial procedure that it should be applicable in all of its provisions to all persons or parties, alike. Different situations and conditions often render appropriate and necessary different provisions, the necessity' or propriety of which rests largely in the legislative discretion. * * * Distinctions of this nature have not been infrequent since the adoption of the present constitution. * * .* Of a like nature are regulations for changes of venue. They are designed to secure to parties a fair and impartial trial of their causes, which is the ultimate and highest purpose of judicial proceedings; and the extent to which such regulations may go, for the accomplishment of that purpose, is addressed to a sound legislative discretion, in view of the nature of the case to be provided for, and the probable conditions likely to arise. * * * This statute imposes no penalty or burden upon one suitor or class of suitors from which others similarly situated are exempt, as did the statute held invalid in Coal Co. v. Rosser, 53 Ohio St., 12; nor does it affect any'right of property of some owners differently from others in the same situation, • as did the act declared unconstitutional in State v. Ferris, Ibid, 314. In the first of those cases the act was held invalid because it exacted an attorney fee from a class of defendants to which parties in no other class of actions were subject; and in the other case the law failed because it laid a burden in the nature of a tax, unequally upon property.”

It is specially urged that tne classification made by the act is unjust and unreasonable, and that this renders the act invalid. This objection, at first blush, seems plausible, but we think it is not sound. Always to be borne in mind is the fact that the discriminations of the law are made up of distinctions, oftentimes slight, sometimes nice, and yet possessed of substance. Next to an act declared by statute to be unlawful will be found one having many points of resemblance, and yet not precisely like the other which is excluded; or an offense may be classified into grades and offenders receive different punishments, but such discriminations do not render either statute unreasonable, or for any reason invalid. A familiar instance is the statute respecting larceny. If a thief steals property of the value of one cent less than thirty-five dollars he may be imprisoned in the jail or workhouse; if the property be of the value of thirty-five dollars, or over, he may be incarcerated in the penitentiary. The two acts equally involve moral turpitude, but one is a felony while the other is but a misdemeanor. Such classes are arbitrarily formed by the general assembly, and necessarily so. “If' the legislature has erred in not including what has been excepted from the law, it is simply an error of judgment in the exercise of its authority, and can not be reviewed by the courts.” The State v. Nelson, 52 Ohio St., 88. The books are full of illustrations of this principle. See authorities cited by counsel.

The act in question partakes of a two-fold nature. Some of its provisions come purely within the domain of the police power; others within the general legislative power, while others partake of both characteristics. It is a remedial act, intended, in the first instance, to regulate the use of automobiles, and to provide for the safety of others who are lawfully using the public highways. Why should they not be regulated, and why should not the old-fashioned user of the highway be protected by the law? Doesn’t everybody know that the automobile is a new machine of travel; its use a new use of the highway; that it is dangerous to other travelers; that its power, its capacity for speed, the temptation it affords the reckless driver to operate it at a dangerous rate and in a careless manner, all distinguish the automobile from all other vehicles. Surely it cannot be necessary to further elaborate this fact so patent to every observing and reading person. The automobile is, therefore, a class by itself, the users of such machines a class by themselves, and legislation in recognition of this condition is based upon a solid, easily recognized distinction. The objection that,because section 33 (which section prescribes the venue in the present case), permits the action to run only against the owner of the automobile, it is therefore invalid, seems to be wholly without force. The act might well have included in its operation more persons using automobiles than the owner or persons renting for more than thirty days, but failure to extend the class no more invalidates the provisions which take in the owner and the thirty-day renter than did the failure of the act in review in The State v. Nelson, supra, to protect drivers of horse cars and gripmen on cable cars, render the provision protecting other motormen invalid.

Nor is there, any injustice inflicted on the defendant by the provision as to venue. It is not, intrinsically, more unfair to permit a suit of the character here involved to- be tried in the county where the victim of the alleged wrong resides than in the county where the alleged wrong-doer resides. The plaintiff would have just as clear a natural right to ask that the law permit a trial in his county as the defendant could have to demand that the trial shall be in his county. That the demand as to venue of the defendant is not based upon natural right is illustrated by the fact that had the plaintiff procured personal service of summons on the defendant in Fayette county the venue of the action would have been fixed in that county; this by'reason of a statute whose validity has never been questioned. How clear is it, therefore, that the whole question- is one of legislative, discretion, and how idle is it to insist that the authorization of summons to go ‡0 Highland county is an invasion of any natural or constitutional right of defendant. The act, in other sections, provides that violation of certain of its requirements shall be deemed a misdemeanor, punishable by fine or imprisonment. Had the defendant been charged in a criminal complaint with a violation of any of these provisions at the time and place of the alleged accident he would have had to answer to a court outside of his own county; this by mandate of the constitution. Thus does the constitution itsel'f deny that there is any inherent right in a violator of law to be tried in the county of his residence.

As hereinbefore indicated we are not called upon to inquire into the reasons which actuated the general assembly in enacting section 33 of the act in question. In our judgment abundant reasons existed, and do still exist. As applied to the present case, the common law afforded a right of action; the statute provides where that right may be pursued and where the remedy may be enforced. The constitution clothes the court of common pleas with capacity to receive jurisdiction; the statute provides what that jurisdiction shall be, and how, and where exercised. We are of opinion that the provision is not unconstitutional, nor unreasonable, and that it works no injustice.

This conclusion calls for a reversal of the judgments below. The cause will be remanded to the court of common pleas of Fayette county with direction to overrule the motion, and for further proceedings according to law.

Reversed.

Price, Johnson and-Donai-iue, JJ;, concur.


author: Donahue, J.

text:
    Shinew v. The First National Bank.

      Forged instrument not merely voidable — But absolutely void — Estoppel to deny signature — May apply to one whose name is forged, when.

      A forged instrument is not merely voidable, but absolutely void, and there can be no ratification of a forgery that will make the instrument valid.
    2. One may by conduct, statements, or silence estop himself from claiming that his signature is a forgery, but before he can be estopped by mere silence, facts must be alleged and proven showing a duty and opportunity to speak, that he knew or had reason to believe, that the holder of the forged instrument would rely on his silence, and that the holder in fact did rely on his silence and was in fact injured thereby.
    (No. 11926
    Decided June 13, 1911.)
    Error to the Circuit Court of Wood county.
    The First National Bank of Bowling Green, Ohio, commenced an action in the common pleas court of Wood county to recover from Annette J. Snyder, J. C. Snyder and George M. Shinew the sum of four hundred dollars and interest thereon, upon a promissory note dated March 5, 1906, and purporting to be signed by the above named persons. A cognovit judgment was taken which was later opened up and George M. Shinew was permitted to file his separate answer in - which he denied that he signed, or authorized any person to sign for him, the promissory note copied in plaintiff’s petition; denied that he executed the note, or authorized any person so to do, and denied that there is anything due from him to the plaintiff. It appears from the record that about the 5th day of March, 1906, Dr. J. C. Snyder, desiring to borrow four hundred dollars from the First National Bank of Bowling Green, Ohio, called upon George M. Shinew and asked him to sign the same. as surety. The testimony of Dr. Snyder offered on the trial of the cause on behalf of the bank is to the effect that Shinew was in the field plowing; that he asked him to sign the note as surety, and Shinew agreed to do so, but not having any pen and ink at hand, he directed the doctor to go to the house .and tell Mrs. Shinew to sign his name for him; that he did as directed by Mr. Shinew, and that Mrs. Shinew did sign the name of George M. Shinew to this note upon his representation to her that her husband desired her to do this. George M. Shinew, in his testimony, denies that he wag -willing to sign this note as surety; denies that he told Dr. Snyder to go to the house and have Mrs. Shinew sign his name thereto,' but on the contrary says that he told Dr. Snyder he would not sign the note, that he had signed as surety once before and lost money thereby, and would not sign again as surety for anyone; that he did not know that his name had been signed by his wife until that night when he was through work, and had gone to his house, at which time his wife told him that the doctor had represented to her that he desired, her to- sign his name to this note. It is also claimed on the part of the bank that George M. Shinew had full knowledge that his name had been signed to said note by his wife before any money was paid upon it; that Shinew recognized the- same and ratified the signing of his name by his wife, affirmed his liability on said promissory note to plaintiff and promised to pay plaintiff the same; that he knew that said note was to he presented to the bank and did not make any attempt to prevent the payment by the bank of the sum named in the note to Snyder, but remained silent and allowed the bank to accept the note and pay the money thereon about four days after the making of the same, and after he had full time, occasion and opportunity in which to notify the bank not to pay any money before it was in fact paid to Snyder and claims that he is now estopped from denying his signature or denying that the same was placed upon said note without his authority.
    Upon the trial of the cause in the common pleas court, the jury returned a general verdict against all of the defendants, including Shinew for the full face of the note with interest, and also answered certain interrogatories as follows:
    “1st. Do you find from the evidence that'the defendant, George Shinew, signed his name to the note sued on in this action? Answer: No.
    “2nd. Do you find from the evidence that the defendant George Shinew authorized any other person to sign his name to the note sued on in this action? Answer: No.”
    George M. Shinew then filed a motion for judgment in his favor on the special findings of the jury, which motion the court overruled. He then filed a motion for a new trial, which the common pleas court also overruled and rendered judgment on the general verdict. Error was prosecuted in the circuit court, and that court affirmed the judgment of the common pleas court, and this proceeding in error is brought to reverse the judgment of the common pleas court and the judgment of the circuit court affirming the .same.

      Mr. N. R. Harrington, for plaintiff in error.
    The only question to be presented to the jury was whether the name of the defendant, George M. Shinew, was signed by his authority so that the same was in law his signature. If Mrs. Shinew signed her husband’s name upon the representation made by Doctor Snyder that Mr. Shinew sent word by him directing her to sign his name to the same, and such representation was false, then the signature of George M. Shinew to the note would be as much a forgery as if Doctor Snyder had without authority written the signature himself. Gregory v. State, 26 Ohio St., 510.
    The question of ratification should not have been submitted to the jury. The act was incapable of ratification. There can be no ratification of a forgery. Workman v. Wright, 33 Ohio St., 405; Hood v. Nichols, 1 W. L. B., 186, 7 Dec. R., 157, 1 W. L. B., 227, 7 Dec. R., 174; Insurance Co. v. Hull, 51 Ohio St., 271; Owsley v. Philips, 78 Ky., 517, 39 Am. Rep., 258; Barry v. Kirkland, 6 Ariz., 1, 40 L. R. A., 471; Henry v. Heeb, 114 Ind., 275, 5 Am. St., 613; Shisler v. Vandike, 92 Pa. St., 447, 37 Am. Rep., 702; B. & L. Assn. v. Walton, 181 Pa. St., 201, 59 Am. St., 636; McHugh v. County, 67 Pa. St., 391.
    It would appear that the bank had some suspicion that there was something wrong about it. In any event it was for the bank to make the inquiry before accepting the note and paying the money. There was no duty resting upon Shinew to speak until such inquiry had been made, when if at all, the doctrine of estoppel would arise. Silence in such case would estop the defendant from denying the signature, not because by his silence he ratified the act of a forger, but because through his silence when he was called upon to speak a third person was permitted to suffer. This condition did not exist in this case, hence the court correctly held and so charged the jury that the doctrine of estoppel did not apply. Woodruff v. Montgomery, 30 C. C., 426; McGovern v. Knox, 21 Ohio St., 547; Osborn v. McClelland, 43 Ohio St., 284; Board of Education v. Sinton, 41 Ohio St., 504; McKinzie v. Steele, 18 Ohio St., 38.
    ■ The mere failure of the surety to repudiate his signature and notify the holder did not constitute a ratification. Joyce on Defenses to Comm. Paper, Sec. 74, p. 92; Bank v. Sayre, 85 Cal., 102, 24 Pac. Rep., 713; Corser v. Paul, 41 N. H., 24, 77 Am. Dec., 753.
    Upon the question of Mrs. Shinew’s authority to sign her husband’s name we contend the ratification of one unauthorized act is not the ratification of another separate and distinct act. Hoffmaster v. Black, 78 Ohio St., 1.

      Messrs. James & Kelly, for defendant in error.
    . Now, .it may be the law of Ohio that a man may sit idly by and allow his wife to sign his name to a note, knowing that the signing of that signature would secure from a bank the money thereon, and knowing that the fraud was perpetrated, if it be a fraud, before the money was paid, that such a man under such conditions and knowing such facts would have no duty to perform other than to do nothing and to allow the fraud to be so perpetrated, but we do not believe that this is the law of the state of Ohio. Johnson v. Way, 27 Ohio St., 374.
    In this case, as in every other, it is the duty of every person to use ordinary care and prudence in his transactions to prevent their operating to the prejudice of others. McKesson v. Stanberry, 3 Ohio St., 156.
    And we claim that it was the duty of Shinew, under all the circumstances, knowing as he did that Snyder was a crook, and that a fraud had been perpetrated and that the bank would likely suffer from such fraud, to at once or in a reasonable time at least, notify the bank.
    A party who has acquiesced in a fraud as Shinew acquiesced in this fraud cannot set such fraud up as a defense to this note. Harlan v. Read, 3 Ohio, 285; Bank v. Buffinton, 97 Mass., 498; State v. Abramson, 57 Ark., 142; Bank v. Keene, 53 Me., 104; Hefner v. Dawson, 63 Ill., 403; Rudd v. Matthews, 79 Ky., 479; Woodruff v. Munroe, 33 Md., 158; Bank v. Bank, 50 N. Y., 575.
    The bank had no knowledge of any fraudulent transaction between Mrs. Shinew and Dr. Snyder, and if Shinew possessed this knowledge and said nothing he acquiesced and ratified the transaction whereby Snyder secured the money of the bank upon this nóte. Johnson v. Bank, 1 Dayt., 197.

      The quietude of Shinew made a consideration for a promise to pay because it became a detriment to the promisee. Workman v. Wright, 33 Ohio St., 405.
    As to ratification see Story on Agency, 253; Livings v. Wiler, 32 Ill., 387; Forbes v. Espy, 21 Ohio St., 474; Sackett v. Kellar, 22 Ohio St., 554; Henry v. Heeb, 114 Ind., 275, 5 Am. St., 613; Williams v. Boyd, 75 Ind., 286.
    We claim that Shinew’s silence, knowing the facts as he did, would be such a ratification and endorsement of the acts that it would bind him. Buckingham v. Smith, 10 Ohio, 288; Castalia Trout Co. v. Sporting Club, 8 O. C. D., 693, 8 C. C., 194, 56 Ohio St., 749; State v. Conser, 24 C. C., 270; Bates v. Binninger, 2 Cin., 568; Quinlan v. Myers, 29 Ohio St., 500; State v. Gibson, 11 Dec., 90, 8 N. P., 367.
   Donahue, J.

The answer of the jury to the second interrogatory submitted to it disposes of the disputed question of fact as to whether or not George M. Shinew directed Dr. Snyder to tell Mrs. Shinew to sign his name to this note. On this question there is a direct conflict of evidence, and therefore, this finding of the jury must be accepted by this court as conclusive of that fact for the purposes of this case as it is now presented. If George M. Shinew did not authorize his wife -to sign this note, then the placing of his name upon the note was a forgery, for it clearly appears that Mrs. Shinew did not place her husband’s name upon the note through any implied authority, or by reason of the fact that she had on previous occasions assumed to sign his name’ to other papers. She was not acting or pretending to act upon any assumption of authority on her part to sign his name because of former transactions, but solely upon the representation made to her by Dr. Snyder that her husband had specifically directed and authorized her to sign this particular paper, and if her husband did not do so, then the signing of his name was a forgery. True, she would not be guilty of forgery because from all that here appears she was acting in good faith aiid relying upon the information imparted to her by Dr. Snyder, but if his representations to her were false then he would be guilty of forgery just the same as if he had used his own hand to write the signature of George M. Shinew. The fact that he procured her to attach the signature of George M. Shinew would make no difference, she was no- more than the instrument by which he accomplished the act of signing George M. Shinew’s name to this note.

This court in the case of Workman v. Wright, 33 Ohio St., 405, held that, “The principle of agency, by which a principal may ratify the unauthorized act of- his agent, does not apply to the alleged ratification of a forged note; the act of the agent being voidable, may be ratified; the act of the forger is void, and can not be ratified.” In that case this court also held that although Wright had promised to pay the note, that the mere promise to pay a forged note without any new consideration,' and' without circumstances creating an estoppel against- the promisor does not become a binding contract creating a liability to pay such note.

In this case the common pleas court charged the jury as follows: “If you find by a preponderance of the evidence that Mrs. Shinew while assuming to act as the agent of Mr. Shinew signed his name to this note, and you find that after the defendant learned that his name had been signed to said note, he ratified the signing of his name by his wife, then the defendant is ■ bound even though he did not authorize the. signing of his name. In order that there may have been a ratification, the defendant at the time of the ratifying the act of his wife, must have known of the facts, relating to the execution of said note and his liability thereon.” This charge is in- direct conflict with the law announced in the case of Workman v. Wright, supra. As already stated there is no foundation for the claim of agency in this case. Mrs. Shinew did not pretend to have any authority to sign her husband’s name as his agent, or to bind him by her; acts as his agent, except the communication made to her by Doctor Snyder that her husband desired her to sign his name to this note, nor1 is it seriously claimed by the plaintiff below that she undertook independent» of this communication to act as her husband’s agent, or to bind him by her contract as his agent; so that the validity of his signature depends entirely on whether Mr. Shinew directed the doctor to tell her to sign his name to this note. If the doctor’s testimony be true, then the transaction was just the same as if the husband had been present and asked the wife to sign his name for him. In such case her act would be his act, and the signature so attached to this note would be his signature and would be valid and binding upon him; therefore, the first question for the jury was whether Shinew did or did not authorize Doctor Snyder to tell his wife to sign his name to this note. If he did not then the signature was a forgery. Forgery being a crime, there could be no ratification of that crime that could operate to change its character. The crime being completed it would forever remain a criminal act, and George M. Shinew could not by any subsequent conduct or admission on his part, ratify a crime that would give validity to an instrument that was absolutely, void at the time of its execution. It is true, however, that, while he might not by any act or conduct on his part ratify a forgery of his name so as to make the instrument a valid instrument, yet he might by his conduct or even by mere silence, estop himself from defending against the payment of the same on the ground that his signature was a forgery, but before he can be estopped by mere silence facts must be alleged and proven showing a duty and opportunity to speak, that the party to be estopped knew, or had reason to believe, that the holder of the note would rely on his silence and that he did rely on -his silence and was injured thereby. Viele v. Judson, 82 N. Y., 32; Wiser v. Lawler, 189 U. S., 260.

' In the third paragraph of the amendment, and supplement- to the petition an attempt is made to' plead an estoppel. It is averred that Shinew had full time, occasion and opportunity in which to-notify the plaintiff not to pay any money thereon. If there were any proof showing that Shinew had “occasion” when it became his duty to speak, when he knew or ought to have known that if he did not speak the bank would rely upon his silence and would be injured thereby, and that it in fact did rely upon his silence and was injured, then this pleading might be held sufficient to have submitted this question of estoppel to the jury, but the proofs do not show any such occasion.

From the evidence it does appear that he had time in which he might have notified the bank of the forgery before the money was paid, but the record does not disclose any opportunity except that there was sufficient time for him to seek such opportunity by voluntarily traveling to the bank, or in some other way communicating with it. The evidence wholly fails to show an occasion to speak, for by “occasion” is meant not only time and opportunity but such conditions and circumstances as required him to-speak, or otherwise be forever estopped from denying his signature. -It is true that a decent regard for the rights of-others ought to induce every man to make such disclosure immediately upon the fact coming to his knowledge." The fact that Shinew did not' immediately communicate with the bank is a. circumstance tending strongly to corroborate the evidence of Dr. Snyder that he had authorized him to tell his wife to sign the note, for the natural and usual" thing for an honest man to do would be to communicate immediately to those most interested, or most likely to be injured thereby, the fraud sought to be perpetrated upon them and this even though it calls for some inconvenience upon his part, and his failure to do so might well reflect upon the credibility of his evidence arid induce a jury to disregard it altogether, or to find against him upon any disputed question of fact. But he is under no legal oblig-ation to do so, unless the circumstances are such that the holder of the forged instrument would have a right to rely upon his silence, and relying thereon would be prejudiced thereby, and the fact that he did not immediately communicate with the bank while it might reflect upon the credibility of his evidence has no further legal significance.

Therefore it was not error for the trial court to instruct the jury not to consider the question of estoppel. This question being entirely out of the case and the jury having found that Shinew did not authorize his signature to this paper, it must have found that he ratified the same, for there could be no other theory upon which a verdict against .Shinew was returned except the theory óf ratification. The trial court should not have submitted this question to. the jury, but should have instructed it that if it found Shinew did not authorize his signature to be placed upon this note that the placing of it there was a forgery and could not be ratified, and for the same reason the motion of the defendant, George M. 'Shinew, for judgment on the special verdict should have been sustained bv the common pleas court, and the circuit court erred in affirming the judgment of the common pleas. For these reasons the judgment of the common pleas court and of the circuit court affirming the same are reversed, and the motion of George M. Shinew for judgment on the special verdict is sustained; plaintiff’s petition is dismissed as to George M. Shinew with costs, and it is ordered that the said George M. Shinew recover from the defendant in error, the First National Bank of Bowling Green, Ohio, his costs expended in the common pleas, circuit court and supreme court taxed at $......, for all of which execution is awarded.

Judgment reversed and judgment for plaintiff in error.

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


author: Johnson, J.

text:
    The Cincinnati Northern Traction Company v. Rosnagle, an Infant.

      Expulsion of infant passenger — By conductor from railway train— For alleged failure to pay fare — Company liable for error of judgment by conductor — Question of legal nature of coin tendered — Redemption of coin by government — Fright and terror proper elements of damage, when.

    1. The power of a railway company to expel from its cars persons who refuse to pay the legal fare is vested in the conductor in charge of such cars. But if the conductor wrongfully expels • one who is entitled to the rights of a passenger, the company is liable to such person in damages, even though such expulsion is doné through an error of judgment on the part of the conductor in charge.
    2. A coin issued by authority of law to circulate as money is not deprived of its legal tender^ quality, merely by being worn in the process of circulation nor when bruised or cracked, so long as it is not appreciably diminished in weight and retains the evidence of its being genuine coinage. And when a passenger . on a car of a common carrier tenders such a coin in payment of his fare which is refused, and the passenger ejected, he may maintain an action for damages against the company, even though the conductor in good faith believed the coin not to be legal tender. In such case the passenger is not required fo tender other money in payment of his fare.
    3. The rules of the United States Treasury Department in regard to the redemption of coins authorized by statute relate simply to redemption and do not affect the question of legal tender.
    .4. In an action by an infant of tender years for wrongful ejectment from a railway car or train, which wrongful ejectment was wilful and intentional, fright and terror are proper elements of damage if such ejectment was under circumstances which would naturally cause fright and terror to the infant.
    (No. 11937
    Decided June 13, 1911.)
    Error to the Circuit Court of Warren county.

      ■ This was a proceeding brought in the common pleas court of Warren county by Howard F. Ros■nagle, an infant, by his next friend, against the .Cincinnati Northern Traction Company. On May 21, 1907, the infant resided at Franklin in Warren county, and was about ten years old. On that day he went to the city of Middletown in Butler county on an errand, and in the evening boarded one of the defendant’s cars at Middletown to go to his home. When the car was near the outskirts of the city the conductor asked him for his fare and he tendered him a nickel. The conductor refused to accept the nickel and requested him to leave the car, which'he did.
    The petition sets forth these facts together with the further allegation that the night was dark and that he became greatly frightened' and went to the home of a nearby resident, who gave him care and assistance and it alleges that he was damaged in the sum of one thousand dollars.
    The answer of the defendant admits the tender of the nickel and -all the. other facts, except as to damages, and further answering says that said Howard F. Rosnagle got upon the car of said defendant at 'or near Third street in the city of Middletown, Ohio, and rode upon said ’ car to the east corporation line of said city; that when the conductor of said car demanded of him his fare he tendered to said conductor the coin commonly termed a nickel; that said coin had been mutilated, defaced and was cracked; that the conductor of said car informed said Howard F. Rosnagle that he could not take said nickel owing to the condition that the same was in and said Rosnagle informed the conductor that said nickel was all the money he had, and thereupon said conductor informed said Rosnagle that he would have to pay his fare or get off the car; that said Rosnagle thereupon voluntarily left the car at said point.
    Plaintiff filed a^ reply in which he denies that he voluntarily left said car of the defendant. On the trial a verdict was returned in favor of the plaintiff upon which judgment was entered. This judgment was affirmed by the circuit court and error is now prosecuted here to reverse the judgments below.
    The nickel that was tendered by plaintiff to the conductor is in evidence and it is conceded that five cents was the regular and legal fare between the points named. The error alleged and relied on by the plaintiff in error is, that the court of common pleas charged as a matter of law that the particular nickel tendered and introduced in evidence was legal money of the United States, and a legal tender for five cents. It is claimed that there are other errors in the charge which will be noticed in the opinion.

      Mr. W. C. Shepherd, for plaintiff in error.
    It would seem by Sections 3505, 3529, 3585, 3586 and 3587, Revised Statutes of the United States, that so long as the genuine silver coin or one of the genuine minor coins is worn only by natural abrasion, is not appreciably diminished in weight and retains the appearance of a coin duly issued from the mint, it is legal tender for its original value. This doctrine is laid down in the eases of United States v. Lissner, 12 Fed. Rep., 840; Railroad Co. v. Morgan, 52 N. J. L., 60; Railway Co. v. Watters, 135 Ala., 227.

    We do not understand that fright and terror are elements which the jury can consider in awarding compensation. The only element that enters into this case is that of mental suffering.
    The supreme court of this state in Smith v. Railway Co., 23 Ohio St., 10, held that the injury to the feelings caused by a public expulsion from the car is a proper subject for the consideration of the jury in awarding damages. That is as far as the court has gone in this 'state.
    In Miller v. Railroad Co., 78 Ohio St., 309, the court holds that ño liability exists in an action for negligence caused from mere fright or shock.
    It seems to' us that the fright and terror this boy was put in, by his expulsion from the car, and there was no physical injury, would have come under the ruling of the court in the case of Miller v. Railroad Co., supra.

    In a case of this kind where a passenger is expelled from a car and seeks to recover for fright as an element of damages, the ground of the recovery is based upon the contractual relation of the parents. Railway Co. v. Gott, 20 Tex. Civ. App., 335; Railway Co. v. Hayter, 77 Am. St. Rep., 866.

      Mr. P. H. Rue, for defendant in error.
    The nickel in question was as clearly subject to redemption or exchange as if it had become imperfect or worn by natural abrasion, and coins of this description, so long as their genuineness can be determined, are held to be a legal tender for car fare. Ruth v. Transit Co., 71 S. W. Rep., 1055; Traction Co. v. McClevey, 126 Ill. App., 21.
    We contend that it is well settled that where a right of action for damages arises by reason of the defendant’s tortuous act, independent of the fright or other distress of mind then the plaintiff is, as a part of damages to be recovered 'for such wrongful act, entitled to have his mental suffering or distress of mind, which was the natural or proximate result of such act, taken into consideration in fixing- his damages, even though there may have been no physical injury. Smith v. Railway Co., 23 Ohio St., 10; Railway Co. v. Ebert, 19 C. C., 725; 6 Cyc., 566; Gorman v. So. Pac. Co., 97 Cal., 1; Sloane v. Railway Co., 111 Cal., 668; Railway Co. v. Flagg, 43 Ill., 364; Railway Co. v. Holdridge, 118 Ind., 281; Curtis v. Railway Co., 87 Ia., 622; Railway Co. v. Rice, 38 Kans., 398; Willson v. Railroad Co., 5 Wash., 621.
   Johnson, J.

There is no claim that the five cent piece which was tendered by plaintiff was not originally a genuine coin issued by the United States.

The testimony and an inspection of the coin disclose such genuine character. It has the appearance of being somewhat bruised and there is a slight crack from the rim toward the center.

The minor coins of the United States are provided for. by Section 3515, Revised Statutes of the United States, in which the alloy and weight are prescribed. Section 3587, Revised Statutes of the United States, provides that the minor coins shall be legal tender at their nominal value for any amount not exceeding 25 cents in any one payment.

It is not doubted that a railway company may expel from its cars persons who refuse to pay the legal fare. Necessarily that inherent power is vested in the conductor employed by the company and placed by it in charge of the train or car. But if the company wrongfully expels one who is entitled to the rights of a passenger, it is liable in damages to such person, and this is so even if such expulsion is done through an error of judgment on the part of the conductor or agent in charge.

And where a passenger tenders to the conductor a genuine coin of the United .States, not so worn, defaced or mutilated, but -that its ’mint marks are plainly discernible and not appreciably diminished in weight, and such tender is refused and the passenger ejected on refusal to pay in other money, he may have an action of damages against the company. And this is so even if the conductor in good faith believed the coin to be counterfeit or not a sufficient coin.

In such case the passenger is not required to tender other money if the first coin tendered was sufficient. Chicago Union Traction Co. v. McClevey, 126 Ill. App., 21; Jersey City & Bergen Rd. Co. v. Morgan, 52 N. J. L., 60; Mobile St. Ry. Co. v. Watters, 135 Ala., 227; Atlanta Con. St. Ry. Co. v. Keeny, 99 Ga., 266.

In Jersey City & Bergen Rd. Co. v. Morgan, 52 N. J. L., 60, the court in the opinion say: “It seems by these statutes (U. S. Statutes) that so long as a genuine silver coin is worn only by natural abrasion, is not appreciably diminished in weight and retains the appearance of a coin duly issued from the mint, it is a legal tender for its original value. The coin in question in this case was shown to the court and jury, but does not appear in the evidence to have been so worn that it was light in weight or not distinguishable as a genuine dime. ■ If' no limitation is put upon its circulation by the government it would seem none was intended so long as it was not defaced, cut or mutilated, and was only made smooth by constant and long continued handling and by being circulated as a part of the national currency.”

■ The question as to what treatment, usage or acts amount to mutilation of coins was before the court in United States v. Lissner, 12 Fed. Rep., 840, and the court in that case hold: “Where a coin which had been regularly coined at the mint was afterwards punched and mutilated and an appreciable amount of silver removed from it, and the- whole plugged up with base metal, or any substance other than silver, it is an act of counterfeiting; but it is otherwise where the hole was punched with a sharp instrument, leaving all the silver in the coin, through crowding it into a different shape.”

Now in this case as to the five cent piece or nickel, the bruise and the crack may have been caused by a blow from a hammer or other heavy instrument, but it retains all of its material and all of the evidences of genuine coinage, though the material is very slightly “crowded into different shape.”

There is not such mutilation, defacing, punching or cutting as to deprive it of its legal tender character within any of the rules laid down in the authorities or the statute. The law does not require that minor coins tendered in payment of debt or for service which the person making the tender has the right to demand, shall be absolutely perfect.

It is contended by defendant in error that so long as a coin is in such condition that it would be redeemed by the United States Government, it does not lose its legal tender character.

The trial court appears to have adopted this as a reasonable test by which to determine the question. The United States Statutes provide that the treasury department may prescribe rules by which coin and paper money which may become unfit for circulation may be redeemed or exchanged, and such rules have been so prescribed. One of the provisions is that “pieces that are stamped, bent or twisted out of shape or otherwise imperfect, but showing no material loss of metal will be redeemed.”

We do not think that the existence of this rule, even though adopted under sanction of the statute, would justify the tender to a railway company or other creditor of a coin which “had become unfit for circulation,” and thus impose on the payee the burden of applying to the treasury department for a coin fit for circulation nor to impose on him the risk of failing to obtain it.

This view in a case where a piece had been torn from a one dollar bill, was adopted by the court in North Hudson Ry. Co. v. Anderson, 61 N. J. L., 248.

In this case we think the evidence shows the coin was not so affected in any manner as to be deprived of its legal tender character and therefore the court did not err in its charge to the jury in that regard.

Plaintiff in error also urges that the court erred in its charge as to the measure of damages. The court charged that “if by the wrongful act of defendant, plaintiff was put off the car under circumstances which would naturally result in great fright and terror to the boy, he is entitled to have proper compensation for that injury.” It is contended that fright and terror are not elements that can- be taken into consideration in awarding compensation, and the case of Miller v. Ry. Co., 78 Ohio St., 309, is relied on in support of this contention. That case was an action for negligence. The court, Crew, J., points out that there was no claim that the negligence of the defendant was wilful or wanton. There was no intentional wrong. In the opinion many cases are examined and discussed, all of which are negligence cases and the conclusion of the court was that no liability exists for acts of negligence causing mere fright or shock where the negligent acts complained of are neither wilful nor malicious.

Such a rule is salutary and necessary in negligence cases. But the reasons for the rule do not apply in cases where the act complained of is not only wrongful but intentional and wilful. In such a case mental suffering and fright and terror where they would naturally ensue as in case of an infant ten years old wilfully expelled from a car at night may be taken into account. 6 Cyc., 566; Curtis v. Ry. Co., 87 Ia., 622; Smith v. P., Ft. W. & C. Ry. Co., 23 Ohio St., 10; C., St. L. & P. Rd. Co. v. Holdridge, 118 Ind., 281; Sloane v. Ry. Co., 111 Cal., 668.

- We find no error in the record and the judgments of the courts below will be affirmed.

Judgment affirmed.

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