author: Price, J.

text:
    The Union Central Life Insurance Co. v. Hoyer.

      Contract of employment — May be discharged as to employer by assumption of third person — With knowledge and consent of employe — Consent may be by parol or implication — Duty of court in charging jury as to implied novation of contract — Law of contracts — Rules of court procedure.

    1. A written contract whereby one party employs another to render services for a fixed period and at a stated rate of compensation, may be discharged as to the employer by the assumption of its obligations to the emplbye by a third person with the knowledge, consent and to the acceptance of the employe, and such consent and acceptance may rest in parol.
    2. The consent to and acceptance of the terms of such contract of novation, need not be express, but the same may be implied from the facts and circumstances attending the transaction and the conduct of the parties thereafter.
    3. Where such facts, circumstances and course of conduct are in dispute between the parties, it was error for the court to refuse to charge the jury, that the consent to and acceptance of the terms of the contract of novation as to him, might be implied from the attending facts and circum-' stances and the conduct of the parties thereafter; and it was error to charge in its stead, that the new contract was not binding upon the employe unless he was a party to it, or agreed to accept under it.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Franklin county.
    Douglas F. Hoyer, defendant in error, by virtue of a written contract for that purpose, dated January 13, 1891, became the agent of the plaintiff in error to render services exclusively for it, in Holmes and Knox counties, the service to consist of canvassing for applications for insurance in said company and the collection and paying over premiums on such insurance when effected. The term of said service was fixed at five years, and according to the contract set out in the petition, the plaintiff below was to make monthly reports of his transactions for the company and remittances of moneys collected to W. E. Hoyer, who was its general agent.
    It was stipulated in the contract that if the plaintiff failed to comply with any of its conditions, duties and obligations; or, should the amount of new business secured by the agent, prove insufficient, or unremunerative, in the opinion of the officers of the company; or, if the agent failed to conduct his business in a satisfactory manner, the company could terminate the contract. The compensation for the agent was agreed to be a certain commission upon the premiums paid to the company on policies effected by him, and in addition to such commissions, the insurance company guaranteed to the plaintiff sixty dollars per month and his necessary traveling expenses when on business for the company, and in case the commissions exceeded the amount so guaranteed and expenses, at the end of the year, the excess should belong to the agent. The following is another clause of the contract: “This contract may be terminated upon the service of notice by the company upon said agent for good cause in accordance herewith; otherwise shall continue in force for the term of five years from January 1, 1891,” etc.
    The agent was paid for services rendered and expenses during the years 1891 and 1892, but he claims to have rendered services during the years 1893, 1894 and 1895, for which he has not been paid except a credit by commissions in the sum of $448.22, leaving'a balance due of $1,591.78, with interest.
    The foregoing is a summary of the petition filed by defendant in error in the common pleas against the plaintiff in error. It contained an . averment that the plaintiff had fully performed all things required of him by the contract, and prayed judgment for the amount due.
    The insurance company, by answer, denied that plaintiff had kept the contract on his part to be performed ; and, among other things, alleged that by the contract, this agent was to make monthly reports of business and remittances of collections, to the company which he had not done; that he had not operated in Holmes and Knox counties as required, and stated other particulars of default in duty of the plaintiff.
    In reference to the guaranty of compensation, the insurance company asserted in the answer, that in a contract made in February, 1891, between the insurance company and W. E. Hoyer, a brother of the plaintiff, it employed said W. E. as its general agent, and that as a part of the consideration for said contract, the said W. E. Hoyer assumed to pay the plaintiff, Douglas F. Hoyer, and perform towards him the written guaranty sued on, and that he would save said company harmless on account of the same; and that having knowledge of this contract of assumption, the plaintiff assented to the same and thereafter looked solely to W. E. Hoyer, and never called upon the company for any settlement or payment until shortly before this action was commenced, March 23, 1899. The reply of plaintiff denied all these averments of new matter. On these issues joined the jury found for the plaintiff and judgment was rendered on the verdict, which the circuit court affirmed.
    The plaintiff in error relies for reversal of the lower courts, on the grounds that the trial court erred in charging the jury and in refusing to charge as requested. The terms of the charge are stated in the opinion.

      Mr. T. E. Powell, for plaintiff in error.

      Mr. Lemuel D. Lilly, for defendant in error, cited and commented upon the following authorities:

      Ford v. Osborn, 45 Ohio St., 1; Shahan v. Swan, 48 Ohio St., 25; Sec. 5294, Rev. Stat.; Hoffman v. Gordon, 15 Ohio St., 211; Insurance Co. v. Bonnell, 35 Ohio St., 365; Bennicke v. Insurance Co., 105 U. S. 355; 1 Ency. Law (2 ed.), 1220; Smith v. White, 5 Dana (Ky.), 376; Robertson v. Clark, 47 Miss., 208; Sayre v. Wilson, 86 Ala., 151; Finley v. Whitely, 46 Ohio St., 524.
   Price, J.

Tt is quite apparent from an examination of the record, that the contentions of the parties in the trial court centered on the issue tendered by the answer, that when the insurance company employed W. E. Hoyer, a brother of plaintiff below, as its general agent at Columbus, it was a part of the contract of employment, that W. E. Hoyer assumed to discharge all the obligations of the company to Douglas F. Hoyer, and save it harmless frota the guaranty sued On, and that the latter, having full knowledge of the contract of assumption by W. E., consented to, and adopted the same, and thereafter reported to this general agent, and looked to him for payment for his services, and not to the insurance company. There was evidence before the jury which tended to support this issue, as tendered by the company.

The plaintiff below denied all knowledge of his brother’s agreement to assume the guaranty and to discharge its obligations to him, and likewise denied that he ever assented to the substitution of his brother in the contract, or that he accepted or adopted the same. This being the character and importance of the controversy, it was the duty of the trial court to so instruct the jury, that it would have no trouble in applying the l^aw to the evidence as to the effect of the facts, circumstances and the conduct of the plaintiff below, which were largely relied upon by the insurance company, to prove his knowledge and acceptance of the new contract so far as it related to him.

It is not doubted as a question of law, that if the plaintiff did have such knowledge and assented to the substitution of W. E. Hoyer as the guarantor in the place of the insurance company, and accepted him as paymaster for services thereafter to be rendered, there was thus established a novation of contract which would release the insurance company from all further liability to him for such services. This novation of contract might be brought about by the substitution of a new debtor in place of the old one with intent to release the latter. And it is not essential that the assent to and acceptance of the terms of novation be shown in express words to that effect, but the same may be established by sufficient attending facts, circumstances and subsequent' course of conduct. The plaintiff, by parol, could have released the insurance company from its written guaranty to him, and if the contract of novation between the company and W. E. Hoyer was made as alleged, it was competent for the plaintiff to accept by parol the provisions made therein for him.

Hence, the duty of the trial court to inform the jury of these elementary principles for their guidance, and it was a proper case in which to instruct the jury, not as to what weight they should attach to any fact or circumstances presented, but what fact, circumstances or course of conduct of the parties, as disclosed by the testimony, it was their duty to consider as bearing upon this part of the controversy. This duty, we believe, the court did not fully perform. On the prominent, if not the paramount issue we have been considering, the charge of the court is very scant. It has the virtue of brevity, but in this case, the brevity became a fault. The jury was told in the most general terms that the plaintiff held the affirmative to show that there was something due him from the defendant, and that if he satisfied them by a preponderance of the testimony that something was due him, they should so find, but if he failed to so satisfy them, the verdict should be for defendant. This was followed by a statement, that, if the plaintiff satisfied the jury of the validity of the contract (a matter not in the case), and that something w$s due him, the sum due with interest thereon should be the verdict. The jury was next told to look to the services performed under the contract between the plaintiff and the insurance company, and that for services rendered he was entitled to $60 per month, less any commissions on business done by him during that time. Further, the court said, that if this contract was in any way terminated by the plaintiff, he would not be entitled to recover for any services rendered after that time; and, if it was terminated by the defendant, by notifying the plaintiff of that fact, he could not recover for services rendered after such notice. The court then added: “But to terminate it by notice, the company would have to give that notice to the plaintiff, would, have to bring it tó his attention, so that he had knowledge of the fact. It would not be sufficient on the part of the defendant to terminate the contract by notifying some of the other agents; for instance, W. E. Hoyer, the general agent here. If that was not communicated to the plaintiff in this case, he would not be bound by it.”

This language is good law, so far as it goes, on one phase of the dispute between the parties, but it does not touch upon what seems to have been the vital question raised by the pleadings and the testimony, ¡namely, the plaintiff’s knowledge of the contract of novation, his acceptance of the terms of the same, and his conduct thereafter in performance of the services. This was a subject of serious dispute betAveen the plaintiff and defendant. No mention was made of the doctrine of mwation of contract.

At this stage of the charge counsel for the insurance company made the following request: “Mr. Powell: I would like to ask, the court to charge this: If they find from the evidence that W. E. Hoyer, the general agent, in February, 1891, assumed the guaranty named in the written contract, of $60 per month, and the plaintiff in this case learned of that fact, and accepted it, and acted upon it and waived his claim for commissions on that account, then he could not recover.”

This request invited the attention of the court to the question of novation, and it should have met with a suitable response. The court, however, said: “If there was a contract between the company and W. E. Hoyer, by which W. E. Hoyer assumed and agreed to pay the guaranty under the contract between D. F. Hoyer and the insurance company, and D. F. Hoyer was a party to that contract between W. E. Hoyer and the company of the assumption on the part of W. E. Hoyer; or, if the plaintiff agreed to that contract and agreed to accept W. E. Hoyer as guarantor under that contract, then he would have to look to W. E. Hoyer for it. But if the contract between W. E. Hoyer and the company of assumption on the part of W. E. Hoyer of the guaranty in the contract between D. F. Hoyer and the company was simply between W. E. Hoyer and the company without the knowledge or consent of D. F. Hoyer, then it would have no effect on him, and would simply be a contract between W. E. Hoyer and the insurance company, and would not bind the plaintiff in this case. In other words, it would not bind him unless he was a party to it, or agreed to accept under it.”

It will be seen that the jury was not told what the effect on the case would be, if the plaintiff had had knowledge of the new contract and consented thereto, but it was made prominent throughout the not very lucid paragraph, that the contract between W. E. Hoyer and the insurance company would not bind the plaintiff unless he was a party to it, or, agreed to accept under it; and the jury might well understand the court to mean, that if the plaintiff was not a party to the novation contract, he was not bound by it unless by express words he agreed to accept under it.

There was no room left for the jury to imply such an agreement from all the attending facts and circumstanc.es, and the conduct of the plaintiff’s business thereafter.

The charge falls far short of what was asked by counsel for the insurance company, and the instruction solicited is not, in either form or substance, found in any part of the charge, and for this reason the case was not properly and fairly submitted to the jury.

For error in the charge and for not charging as requested, the judgments of the circuit and common pleas are reversed, and cause is remanded.

Judgment reversed.

Burket, Spear, Davis and Shauok, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Falconer et al. v. Martin et al., as Administrator, etc.

      Transcript, when to he filed — Section Gl¡09, Rev. Stat. — Transcript of entries of prohate court filed in common pleas to perfect appeal — May he amended under Section BllJf, Rev. Stat. — Omitted entries may he supplied, when.

    A transcript of the entries of the prohate court, which is required hy Sec. 6409, Revised Statutes, to be filed in the office of the ' clerk of the court of common pleas to perfect an appeal from the former court to the latter, if filed within the time-prescribed by that section, may, under favor of section 5114, Revised Statutes, be amended by supplying omitted entries at any time before final judgment in the court of common pleas. Johnson v. Johnson, 31 Ohio St., 131, approved and followed. Second National Bank of Bucyrus v. Moderwell, 59 Ohio St, 221, modified by limiting the syllabus to the point decided.
    (Decided June 10, 1902.)
    Error to the Circuit Court- of Franklin county.
    Between March, 1884, and April, 1894, the defendants in error filed in the probate court several accounts as administrators of the estate of M. Louise Deshler, deceased. To these accounts the plaintiffs in error filed exceptions, which were overruled by the probate court February 6, 1S97, and on that day the exceptors gave notice of their intention to appeal the cause to the court of common pleas, and the amount of the appeal bond was fixed by the probate court. On the 23d of February, 1897, an authenticated transcript of proceedings in the probate court, with original papers, was filed in the office of the clerk of the court of common pleas, the transcript so filed consisting of the single entry of the probate court relating to the overruling of the exceptions, the notice of appeal, and the fixing of the amount of the appeal bond by the probate court.
    On the 17th of February, 1898, the administrators filed in the court of common pleas, their motion to dismiss the appeal upon several grounds, that which is now material being that the appellants had not filed in the office of the clerk of the common pleas court an authenticated transcript of the journal entries of the probate court by the second day of the term of the court of common pleas next after the notice or bond had been given in the probate court. After that day, by leave of the court of common pleas, a further authenticated transcript, showing all the proceedings in the probate court with reference to the estate, was filed in the office of the clerk of the court of common pleas, and the motion to dismiss the appeal was thereupon overruled. On a hearing of the exceptions to the account in the court of common pleas, they were overruled by that court. A bill of exceptions was taken by the exceptors, the plaintiffs in error, and a petition in error was by them filed in the circuit court to reverse the rulings of the court of common pleas on the exceptions. Upon the hearing in the circuit court the following entry was made:
    “Said parties appeared by their attorneys and this cause came on to be heard upon the petition in error of the said Henry C. Falconer and others, plaintiffs in error herein, together with the bill of exceptions, and the duly certified transcript of the orders and judgment of the court of common pleas of Franklin county, Ohio, and original papers, and was argued by counsel; upon consideration thereof the court finds that the common pleas court was without jurisdiction to hear, entertain or determine the alleged exceptions of the plaintiffs in error herein to the said accounts of the defendants in error herein and that therefore this court is without jurisdiction in the premises, and that said appeal from the judgment of said probate court should have been dismissed by the common pleas court on motion of • the above named defendants in error. This court therefore now7 coming to render the judgment w7hich the said common pleas court should have rendered, it is here considered, ordered and adjudged by this court that attempted appeal from the said probate court to the common pleas court be, and the same is hereby dismissed, and this petition and proceeding in error herein are hereby dismissed at the costs of the plaintiffs in error; that a special mandate be sent to the court of common pleas to carry this judgment and order for costs into execution, to all of w7hich findings, orders, judgments and decrees the plaintiffs in error except.”

      A petition in error is filed here for tiie reversal of that judgment.

      Messrs. Taylor & Taylor and Mr. T. E. Powell, for plaintiffs in error.

      Messrs. Booth, Keating, Peters & Butler, for defendants in error.
   Shauck, J.

There appears to have been inadvertance in the preparation of the entry of judgment in the circuit court. If the court of common pleas enters a judgment or final order which .it is without jurisdiction to make, the circuit court has authority to reverse it, and that authority was substantially exercised in the present case when the circuit court ordered the dismissal of the appeal in the court of common pleas, notwithstanding the conclusion stated that it was without jurisdiction because the court of common pleas had been.

The material proposition advanced by counsel for the plaintiffs in error is, that the circuit court erred in the conclusion that the court of common pleas did not acquire jurisdiction to hear and determine the exceptions to the account of the administrators because of a fatal defect in the steps taken to perfect their appeal to that court from the probate court. In the opinion of the circuit court and the briefs of counsel supporting its judgment, that defect is said to be in the failure of the appellants to file with the clerk of the court of common pleas a complete transcript of the docket or journal entries of the probate court “on or before the second day of the term of said court next after an undertaking or notice is given,” that being the time fixed by section 6409 of the Revised Statutes, for such filing. This conclusion necessarily implies both that the authenticated transcript consisting of the entry from the journal of the probate court overruling the exceptions, which was filed before the day specified, was not a sufficient transcript, and that it was not subject to effective amendment after that time. Without so deciding we assume that the authenticated transcript filed within the time, but containing the single entry showing the action of the probate court upon the exceptions, was not sufficient to bring that subject within the appellate jurisdiction of the court of common pleas. The question then is, whether such partial transcript duly authenticated and filed within the time required by the statute, may be effectively amended by filing a duly authenticated transcript of the remaining entries after that time. An affirmative answer to this' question appears in every case where upon suggestion of the diminution of the record in an appellate court that court has ordered the filing of a complete transcript. Whether this incident of appellate jurisdiction is conferred or preserved by section 5114 of the Revised Statutes regulating amendments, its existence is made apparent by numerous constructions of that section and by familiar practice since its enactment. It was originally enacted as section 137 of the Code of Civil Procedure. It is not necessary to resort to inference from the variety of amendments which it has been held to authorize since in Johnson v. Johnson, Executor, 31 Ohio St., 131, it was held to authorize the amendment of proceedings for an appeal from the probate court to the court of common pleas on exceptions to the account of an executor.

The opinion of the circuit court in the present case shows that its conclusion was much influenced by the first section of the syllabus in Bank v. Moderwell, 59 Ohio St., 221. It is true that the subject of that section was a proceeding in error in this court and. particularly the requirement of section 6716 of the Kevised Statutes, that in lieu of a transcript of the final record there may be filed in this court with the petition in error “a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the. error complained of.” But the difference does not appear to be important with reference to the present question, since both sections require a transcript of the docket and journal entries. Furthermore, it is true alike of appeals and proceedings in error that, being statutory, they are to be taken substantially according to the statutes by which they are authorized. The similarity of the proceedings in this respect results, necessarily, from the provisions of the constitution, the fourth section of the fourth article giving to the court of common pleas only such jurisdiction as may be fixed by law, and the second and sixth sections of the same article making a like provision with respect to the appellate jurisdiction of this court and the circuit court. With respect to the question before us the proceedings by which resort is had to a court of superior jurisdiction are appellate whether by a petition in error for the reversal of the judgment of the inferior court for error appearing upon its record, or by appeal with a view7 to a trial de novo. But though such proceedings are statutory it does not follow7 that the statutes by which they are authorized should be construed in a spirit of hostility, for they are, in the most obvious sense, remedial. In the Bank v. Moderwell et al., there were two motions : One by the defendant in error to dismiss the petition in error for want of a sufficient transcript of the record to be reviewed; the other by the plaintiff in error for leave to amend the certificate of the clerk authenticating the transcript which had been filed within the time prescribed, the only defect in the transcript being in the certificate of authentication. Obviously the granting of the latter motion would supersede the consideration of the former, and the latter motion was granted. The only point, therefore, that was decided in the case was that under the provisions of section 5114 of the Revised Statutes, the transcript was subject to amendment with respect to the defective certificate. The correctness of that conclusion does not appear to be doubted, nor are we aware of any reason for doubt respecting it. Since the preparation and authentication of transcripts are duties imposed upon the probate judge and the clerk of the court of common pleas, no reason appears for applying different rules to different parts of the transcripts which they prepare in the discharge of their official duties, and the reasons assigned for the conclusion reached in the case might well be considered as applying to other portions of the transcript. The case did not require any limitation to the meaning of section 6731, Revised Statutes :

“Writs of error and certiorari to reverse, vacate, or modify judgments or final orders in civil cases are abolished; but courts shall have the same power to compel transcripts of the proceedings containing the judgment or final order sought to be reversed, to be furnished, completed, or perfected, as they heretofore had under writs of error and certiorari ”

Nor was it intended to disapprove the following cases, or any of them: Doty v. Rigour, 9 Ohio St., 519; Johnson v. Johnson, 31 Ohio St., 131; Godfred v. Godfred, 30 Ohio St., 53.

The consideration of the case did not lead to any doubt respecting the proposition of the syllabus in Doty v. Rigour, supra, “that amendments may-be made at any time before a suggestion of diminution of record would be too late; that is, at any time before final adjudication on error.”

In cause number 6396 on the docket of this court, Brigel v. Kittredge, 65 Ohio St., 576, a motion was made by the plaintiffs in error, after the time limited for the filing of a petition in error, for leave to amend the transcript filed here by supplying an additional entry from the record of the court below, and also filing here a motion for a new trial, which had been filed.there. The motion was resisted upon the authority of the Bank v. Moderwell, supra. It was, on the 26th of September, 1901, unanimously sustained by this court with respect to the additional entry, though overruled otherwise.

Being aware that the report of that case has occasioned embarrassment, not only in the case now under review, but in others, we have thought it advisable to repeat “our endeavor to state in the syllabus the points of law arising upon the facts of that case” by limiting it to the proposition decided: A petition in error with an authenticated transcript of the docket and journal entries having been filed in this court with a petition in error and with the necessary original papers within the time limited by statute, a material defect in the certificate of authentication may, under favor of section 5114 of the Revised Statutes, be corrected by amendment after that time.

Judgment of the circuit court reversed and cause remanded for the consideration of the errors assigned in the petition in that court.

Burket, Spear, Davis and Price, JJ., concur.


author: Davis, J.

text:
    Taylor v. The Standard Brick Company and The Akron Hydraulic Press Brick Company et al.

      Consolidation of actions — To avoid multiplicity of suits — Court may demand single action of several parties, when — Several actions against same defendant — Defendant may ask for consolidation of suits and for in ¡unction- — Order for such consolidation not a final order — 'ilefusal of temporary injunction, not prejudicial error, when--Court procedure.

    1. Under the Ohio code of civil procedure, as formerly in chancery, to avoid multiplicity of actions, the court may require that the rights of all parties interested in a transaction, or subject-matter, shall be determined in a single action; and in doing so the identity of parties is not considered, but rather a community of interest in the subject-matter of the litigation.
    2. Where several actions for the recovery of money are pending against the same defendant and he answers in all of them setting up equitable defenses and praying for equitable relief, and after the issues are all made up in these cases, the' defendant files his petition in the same court making defendants thereto all of the plaintiffs in said actions and all other persons whom he has reason to believe claim any interest in the subject matter of the controversy, and praying for the same relief as in his answers in such actions, and in case of recovery for marshalling of liens and other relief, and for a temporary injunction restraining the trial of said pending actions until the final hearing of his petition, it is not error to refuse the injunction and order that his actions for equitable relief shall be consolidated with the actions pending against him; nor is such order for consolidation a final order.

      3. In such, case the refusal to grant a temporary injunction as prayed is not prejudicial error, because the order consolidating all the cases practically effects the purpose sought to be accomplished by the injunction.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Cuyahoga county.
    This case was heard by one division of the Supreme Court.
    The defendant in error, The Standard Brick Company, filed a petition against the plaintiff in error in the court of common pleas of Cuyahoga county to recover upon a bond which the plaintiff in error had signed as surety for one Joseph Soss, who had contracted to construct a building and pay all claims for labor and material, the bond containing a clause that the same should be for the use and benefit of any laborer or material man, the same as for the owner of the building. Afterwards the Akron Hydraulic Press Brick Company commenced a similar action against the plaintiff in error and a number of other suits were also begun against him on this bond. The plaintiff in error answered in those cases, setting up as a first defense a general denial, and alleging mistake in the execution of the bond in that the clause for the benefit of the laborers and material men was inserted by the scrivener by mistake and alleging fraud and misrepresentation in obtaining the bond. Some time after the issues had been made up in these suits the plaintiff in error commenced his action in the same court against the Standard Brick Company and all the plaintiffs in these various suits on the bond, and making defendant also all persons whom he had reason to believe had claims against him on account of the bond, and setting up in his petition the same allegations of mistake in the execution of the bond and fraud and misrepresentation in obtaining it. He also alleges the pendency of these actions, that they are being pressed for trial and prays as follows: “Wherefore plaintiff invokes hereby the equitable jurisdiction of this court in the premises, and prays that a temporary injunction may be granted against said defendant, The Standard Brick Company, to enjoin and prevent the trial of said cause now pending upon the calendar, and ordering and requiring said defendant and the Akron Hydraulic Press Brick Company, The Portage Entry Quarries Company, The Malone Stone Company and Heintel & Kohl to dismiss their several pending actions at law against the plaintiff, and come into this cause where equitable jurisdiction may be had. That all of said defendants may be ordered to come into this cause and set out their several claims or be foréver barred from commencing or maintaining any action against plaintiff. That each and all of the defendants herein may be enjoined from further prosecution of any actions brought by them and from commencing any action against this plaintiff upon said bond until the final determination of this action,” etc. After the ‘filing of this petition plaintiff filed a motion for a temporary injunction pending said action, and during the hearing of that motion, on the suggestion of the court, counsel for the Standard Brick Company, defendant, filed a motion to consolidate the action with the action of the Hydraulic Press Brick Company against the plaintiff in error. And thereupon the court overruled the plaintiff’s motion for an injunction and ordered these actions consolidated with the case of the Hydraulic Press Brick Company, and this was assigned for error in the circuit court which affirmed the judgment of the common pleas, and that order and judgment is now complained of in this 'court.

      Mr. J. W. Taylor and Mr. T. H. Garry, for plaintiff in error, cited and commented upon the following authorities:
    Section 6707, Rev. Stat.; People v. Railway Co., 29 N. Y., 418p; Tidd’s Prac., 4th Am. ed., 614; 4 Ency. Pl. & Prac., 677; Sec. 5120, Rev. Stat.; Burkhardt v. Burkhardt, 36 Ohio St., 261; Goslin v. Campbell, 7 Re., 456; 3 Bull., 369; Sec. 817, Code of Civil Pro.; Mayor v. Coffin, 90 N. Y., 312; Grocery Co. v. Flint, 5 N. Y. App. Div. Sup. Court, 263; Wooster v. Case, 12 N. Y. Supp., 769 (34 N. Y., 577) ; Sec. 5707, Sandel & Hill’s Digest; Meehan v. Watson, 65 Ark., 216; Smith v. Smith, 22 Colo., 480; Ortman v. Railway Co., 32 Kan., 419; Code of Iowa, Sec., 2734; Harwick v. Weddington, 73 Ia., 300; Bank v. Ingerson, 105 Ia., 349; Sec. 2792, Revised Statutes of Wisconsin; Winninghoff v. Wittig, 64 Wis., 180; Livermore v. Bainbridge, 56 N. Y., 72; Bank v. Commonwealth Nat. Bank, 2 Hun, 287; Brown v. Kuhn, 40 Ohio St., 468; Story’s Eq. Jur. (13 ed.), Secs. 875, 885, 901, 904; Beach Modern Eq. Jur., Sec. 647; High on Injunctions, Sec. 63; Becker v. Church, 115 N. Y., 562 (Penn. v. Ingles, 82 Va., 65) ; Zeigler v. Beasley, 44 Ga., 56; Railroad Co., v. Mayor, 54 N. Y., 159; Railway Co. v. Ramsey, 45 N. Y., 637; Burke v. Railway Co., 45 Ohio St., 631; Railway Co. v. Hamilton, 2 Circ. Dec., 259; 3 C. C. R., 455; Watson v. Sullivan, 5 Ohio St., 43; Turpin v. Coates, 12 Neb., 321; Secs. 5071, 5074 and 5009, Rev. Stat.; Wilkins v. Bank, 31 Ohio St., 565; Railroad Co. v. Sloan, 31 Ohio St., 1.

      Messrs. Solders, Hogsett & Tilden and Messrs. Henderson & Quail, for defendants in error, cited and commented upon the following authorities:

      Missionary Society v. Ely, 56 Ohio St., 405; Watson v. Sullivan, 5 Ohio St., 43; Railroad Co. v. Sloan,
      31 Ohio St., 1; Railroad Co. v. Duckworth, 1 C. D., 618; 2 C. C. R., 518; Burke v. Railway Co., 45 Ohio St., 631; Burkhardt v. Burkhardt, 36 Ohio St., 261; Sec. 5120, Rev. Stat.; Massie v. Stradford, 17 Ohio St., 596; Buckner v. Mear, 26 Ohio St., 514; Sheeful v. Murty, 30 Ohio St., 50.
   Davis, J.

The plaintiff in error complains that there was error in the judgment of the circuit court affirming the judgment of the common pleas in making the order of consolidation, and in refusing a temporary injunction, on motion, as prayed for in his petition.

I. It is a familiar principle of equity practice, which we conceive is not abrogated by the code, that in order to avoid multiplicity of actions the court may require the determination of the rights of all parties interested in a transaction or subject-matter, in a single action, wherever the purpose of justice may seem to demand it; and in doing so the identity of parties is not considered, but rather a community of interest in the subject-matter in litigation. Pomeroy Eq. Jur. (2nd ed.), Secs. 268, 269; 4 Enc. Pl. and Prac. 690, 692; 2 Daniel’s Ch. Prac. (6th ed.), 1120, note a. The authors of our code, who used the New York code of civil procedure as a model, seem to have deliberately rejected the provision in the latter code that “where two or more actions in favor of the same plaintiff against the same defendant, for causes of action which may be joined, are pending in the same court, the court may, in its discretion, by order, consolidate any or all of them into one action.” Our statute, Revised Statutes, Sec. 5120, is mandatory that on motion of a defendant the several actions shall be consolidated, if it appear that the actions, not causes of action, could have been joined and ought to be joined. The power of consolidation is not limited to identity of parties and to causes of action which might be joined in the same petition under the rules of pleading; but it seems to have been purposely broadened so as to authorize the consolidation of all actions which might be joined, either at law or in equity, for. convenience of trial, for preventing multiplicity of actions or for the purpose of saving costs. This plaintiff in error was defendant in a number of actions upon his bond, and in all of them he answered, as one defensé, that the scrivener had made a mistake in drafting the bond, and as another defense, that the bond was obtained by fraud and misrepresentation. Some time after the issues were made up in these cases, the plaintiff in error filed his petition in this case, making as defendants thereto all of the plaintiffs in these actions on the bond, as well as all other persons whom he had reason to believe, asserted claims against him on the bond. He sets forth in his petition the same allegations of mistake and fraud which he had made in his answers. He invokes the equitable jurisdiction of the court in the premises, prays that a temporary injunction may be granted against the Standard Brick Company to prevent the trial of its cause against him, and requiring the Standard Brick Company, the Akron Hydraulic Press Brick Company, and others, to dismiss their several actions at law, pending against the plaintiff, and to come into this cause where equitable jurisdiction may be had, etc. Thus the plaintiff himself sought to bring all the pending actions, and all the parties concerned, into one action ; and he cannot be allowed to complain when the defendants, by a motion to consolidate, concur with him. We find no error in the order of consolidation; and even if it were erroneous, it is not reviewabl 3 now,.because it did not determine any of the actions or prevent a judgment therein. Section 6707, Rev. Stat.

It is suggested in argument by plaintiff in error that the order of consolidation made no provision as the pleadings that have been filed, and that the order of proceeding in the trial of the consolidated action may prejudice the plaintiff in error. We see no difficulty in this. The issues are not changed by the consolidation. The equity questions raised by the plaintiff in error in his petition and cross-petitions below will be first disposed of, and next the other issues, if they remain after the determination of the equity issues. Massie v. Stradford, 17 Ohio St., 596; Dodsworth v. Hopple, 33 Ohio St., 16; and see also, Reiff v. Mulholland, 65 Ohio St., 178.

II. It is also maintained by the plaintiff in error that the order refusing a temporary injunction was an order adversely affecting his substantial rights, that it is an order made in a special proceeding, and that it is therefore a final order which may be reviewed on error, and which ought to be reversed. For the purposes of this case it may be conceded that the order refusing the injunction is a final order; for it seems to be clear that it is not prejudicial to the plaintiff in error, and therefore it does not authorize a reversal, even if it were technically erroneous. It appears from the plaintiff’s petition that the purpose which was sought to be accomplished by the temporary injunction, was to stay the trial of the several pending actions until this action had been heard and determined. The consolidation of all of these actions with this one, effectuated this purpose, because judgments on the bond cannot be rendered against the plaintiff in error until the equitable issues are determined.

The judgment of the circuit court is therefore

Affirmed.

Burket, Shauck and Price, JJ., concur.


author: Spear, J.

text:
    The Farmers’ Bank et al. v. The Diebold Safe & Lock Co. et al.

      Certificate of stock not a negotiable instrument, when — Certificate issued to secretary of company — By him assigned and delivered to bona fide holder — But not transferred on books of company — Fraudulently reobtained and delivered to third party — First assignee held the real owner.

    1. A certificate of stock of a corporation expressed on its face to be transferable only on the books of the company at its office, personally, or by attorney, on surrender of this certificate, and transferred in blank upon its back, is not a negotiable instrument.
    2. Where such a certificate of stock is issued to the secretary of the company, the stock standing in his name upon the books, and such holder assigns the same to a bona fide taker thereof, by executing an assignment on the back blank as to the name of the assignee, and delivers the certificate so assigned to such assignee, and then afterwards fraudulently obtains possession of such certificate by abstracting . it from the president’s drawer in the safe of the company, where it had been placed by the president, and pledges it to another for his own debt, and the creditor accepts such pledge without inquiry, or attempt to have the stock transferred to him on the books, such first assignee will, in the absence of culpable negligence on his part proximately contributing to the deceit, be held to be the real owner of the certificate, although such second pledgee has acted in good faith and on the belief that his debtor was the real owner of the stock.
    (Decided June 10, 1902.)

      Error to the Circuit Court of Stark county.
    The present action is to reverse the judgment of the circuit court of Stark, where the cause was tried on appeal from the common pleas of that county. The record is voluminous and somewhat involved, but the statement following will be found sufficient to an understanding of the points considered:
    The controversy in this court concerns the ownership of certificate of stock No. 61, of the defendant in error, The Diebold Safe & Lock Company, an Ohio corporation with its principal office and place of business at the city of Canton, and of which William W. Clark was president and Dominick Tyler, secretary and treasurer. From the finding of facts made by the circuit court it is shown that on the 30th of April, 1881, the Company issued and delivered to Tyler its certificate of stock of the above number, signed by Clark as president and Tyler as secretary, and having the seal of the corporation legally affixed thereto, calling for fifty shares of stock therein, of one hundred dollars per share, which certificate at the time of its issue was legal, valid and regular in all respects. Tyler had been secretary and treasurer of the Company since 1876, and Clark had been its president during that time. The certificate was in words and figures as follows:
    “State of Ohio. Diebold Safe & Lock Co., No. 61, 50 shares. This is to certify that Dominick Tyler is entitled to fifty shares of the capital stock of the Die-bold Safe & Lock Company, of Canton, Ohio, transferable only on the books of said company at their offices at Canton, Ohio, personally, or by attorney, on the surrender of this certificate. In witness whereof, said company has caused this certificate to be signed by its president and secretary, and sealed with its corporate seal. Canton, O., April 30th, 1881.
    “W. W. Clark, President.
    “B. Tyler, Secretary. (Seal.)”
    Between the years 1882 and 1884, Tyler became-indebted to the Company by reason of overdrafts, and on August 20, 1884, on demand of Clark, for the purpose of securing the corporation on the indebtedness, which amounted to about $4,000, signed the following' endorsement on the back of the certificate and delivered it to the corporation for the purpose of securing the debt then owing:
    “For value received * * * do hereby sell and assign this certificate to * * * and authorize the stock represented therein to be transferred on the books of this company.
    “B. Tyler.”
    The certificate was then handed to Clark as president, who placed it in an unsealed envelope in an unlocked drawer in the safe of the Company which was situated in the office occupied by Clark as president and Tyler as secretary and treasurer, and which safe was used by them every day for the purpose of keeping papers of the corporation, and was accessible to Clark and Tyler, the drawer being used by Clark as president in which to keep the papers of the Company over which he as such president had individual and personal control, and in which Tyler as secretary each month put a check for the salary of said Clark. At this time there was marked on the stub of certificate No. 61, of the stock book, the following language: “8-20-’84. Left with the Company as collateral security.”

      On June 1, 1891, Tyler not having paid his indebtedness to the corporation for which the stock had been pledged as security, Olark agreed to purchase certificate No. 61 from Tyler, and after all arrangements had been made between them for the purchase, Clark went to the drawer of the safe to get the certificate, but did not find it, whereupon he made inquiries concerning its whereabouts of Tyler and of others, but they all disclaimed having seen the certificate, and not finding it in the safe, a new certificate No. 140, was, on June 1, 1891, issued therefor and delivered to Tyler and by him assigned to Clark, whereupon Tyler paid all his indebtedness to the Company from the money received from Clark on said purchase. And Clark kept certificate No. 140 until the 23rd day of June, 1892, without having the same transferred on the books of the Company, at which last date Clark surrendered certificate No. 140 and had certificate No. 151, for fifty shares of stock, issued directly to him; and Clark made no search or inquiry for certificate No. 61 after the issuance of certificate No. 140 until September 29, 1896.
    On June 1, 1891, when certificate No. 140 was issued, there was marked, in red ink, on the stub of the stock book from which certificate No. 61 had been issued the words: “Certificate lost and duplicate issued under No. 140, June 1, 1891.” But certificate No. 61 never had anything written upon it which would indicate that the same had been surrendered or canceled, although on June 1, 1891, it was intended and thought by the corporation and by Clark that certificate No. 61 had been canceled and surrendered, and it was then treated and considered by the Company and Tyler as canceled and surrendered. It has been and was the custom of the Company and of Clark, when any certificate of stock of the Company was canceled or surrendered, to attach such canceled or surrendered certificate to the stub of the stock certificate book from which it had been taken.
    It is distinctly found as matter of fact, by the circuit court, that certificate No. 61 was lost or mislaid without any fault or negligence on the part of Clark or of the Company, and it is further found that Clark became, by his purchase of said stock, and always thereafter continued to be, the actual owner thereof.
    From one to two years after June 1, 1891, Tyler, who was still the acting secretary of the Company, found said certificate No. 61 in an old envelope in the said drawer of the safe under other papers,- where it had been placed by Clark, and after so finding it, Tyler, without the knowledge or consent of Clark or of the Company, on April 29,1895, took the certificate and delivered it in the same condition as it was at the time of its delivery to Clark, as president, to the Farmers’ Bank, which having no knowledge as to how Tyler obtained the same, accepted it as collateral security for the sum of $2,500 then loaned by the bank to Tyler, personally, in which transaction neither the Company nor Clark had any interest, nor had either any knowledge concerning the same. Tyler was not the agent of the Company or of Clark in anything respecting said loan to him by the bank or respecting his possession of the certificate, or of his hypothecation of the same as security. Afterward Tyler pledged the same certificate to Adam C. McDowell, one of the plaintiffs in error, under like circumstances, for a debt due from Tyler to him.

      Messrs. McCarty, Craine & McDmoell and Mr. A. A. Thayer, for plaintiffs in error, cited and commented upon the following authorities:

      Railway Co. v. Bank, 56 Ohio St., 351; Knox v. Eden Musee American Co., 148 N. Y., 441; Jarvis v. Manhattan Beach Co., 148 N. Y., 652; Bank v. Railway Co., 21 Ohio St., 221; Cook on Stockholders, Secs. 415, 416; Railroad Co. v. Schuyler, 34 N. Y., 30; Titus v. Turnpike Co., 61 N. Y., 237; Bank v. Railroad Co., 137 N. Y., 231; Tome v. Railroad Co., 39 Md., 36.

      Messrs. Clark, Ambler & Clark, for defendants in error, cited and commented upon the following authorities :

      Eaton v. Davidson, 46 Ohio St., 355; Grever & Sons v. Taylor, 53 Ohio St., 631; Bank v. Wallace, 45 Ohio St., 152; Brownell v. Harsh, 29 Ohio St., 631; Holzworth v. Koch, 26 Ohio St., 33; Robinson v. Boyd, 60 Ohio St., 57; Dalrymple v. Wyker, 60 Ohio St., 108; Sec. 3255, Rev. Stat.; Railway Co. v. Bank, 56 Ohio St., 351; Knox v. Eden Musee American Co., 148 N. Y., 441; Moores v. Bank, 111 U. S., 156; Farrington v. Railroad Co., 150 Mass., 406; Insurance Co. v. Railroad Co., 139 N. Y., 146; Tome v. Railroad Co., 39 Md., 36; Hill v. Publishing Co., 154 Mass., 172; 1 Cook on Corp. (4 ed.), 359; Barstow v. Mining Co., 64 Cal., 388; Anderson v. Nicholas, 28 N. Y., 600; Land Co. v. Dennis, 85 Ala., 565; Swim v. Wilson, 90 Cal., 126; O’Herron v. Gray, 168 Mass., 573; Board of Education v. Sinton, 41 Ohio St., 504; Kimball v. Billings, 55 Me., 147; Hildyard v. South Sea Co., 2 P. Wms, 76; Simm v. Telegraph Co., 5 Q. B. D., 188; 2 Beach Modern Law of Contracts, Sec. 1952; 1 Cook on Corp., Sec. 293; Jarvis v. Manhattan Beach Co., 148 N. Y., 652.
   Spear, J.

The demand of the plaintiffs in error is, in substance, that the Company and Clark be held not to have title in certificate No. 61, and that title in the same he declared to be in them, and for full equitable relief.

It is manifest that if this relief be granted, the claims of the Company and of Clark must be denied them on the ground either—

1. On the doctrine of implied agency; or,

2. On the application of the principles of estoppel.

But Tyler, although secretary and treasurer of the Company, was not its agent to represent to one with whom he might be dealing on his own account, and away from its office, the fact as to who owned the stock of the corporation, or in whose name the stock stood on its books. Such representations were no part of his real or apparent authority. The transaction with the bank was one which did not concern his official duty in any respect, but was wholly for his own personal profit. The Company had no actual or apparent connection with it, nor did Tyler pretend to represent or act for the Company. Indeed it was apparent from the face of the certificate, that Tyler had exercised his authority as secretary for his own advantage. In other words, the case stands as to the question of agency, precisely as though the transfer had been made by one who had no relation whatever with the management of the Company, for it is of no materiality that Tyler was the agent of the Company for some purposes.so long as he was not its agent for the purpose of negotiating its certificates of stock as security for his individual debts, and so long as he did not pretend to have such authority, nor to act for the Company in any way.

True, the statute gives authority to the president and secretary, on demand, to execute and deliver to a stockholder a certificate showing the amount of stock owned by him, but it does not follow from this provision that the secretary could have authority, express or implied, to take possession of a certificate once owned by him, but which had been legally and formally transferred and manually delivered to the Company, and thus passed wholly out of his own possession, and later sold outright to a third party, and issue it anew. His act in abstracting the certificate from the safe, and uttering it as valid, had no relation to the authority with which he was actually clothed, nor in fact with any semblance of authority. It was, in fact, a criminal act, perpetrated for private gain and not connected with any official authority, real or apparent. At all times, after the transfer to the Company, the certificate was in the legal as well as manual possession of the Company until the purchase by Clark, and then and thereafter it was in his legal possession, and in his actual possession until abstracted by Tyler. Tyler’s access to the drawer where the certificate had been placed by Clark, and opportunity to possess himself of any of its contents was not, therefore by reason of any authority. His opportunity was that of a mere servant. The doctrine of implied agency would not seem to be applicable to the facts of this case.

Is the Company, or is Clark, estopped to make defense and set up title to the stock?

The ground urged by the plaintiff in error is that of culpable negligence. The finding of the trial court that certificate No. 61 was lost or mislaid without any fault or negligence on the part of Clark or of the Company, answers this claim of estoppel unless the law is that one may not leave his property where it may be found by a servant except at the peril of losing his title thereto if the servant steals and disposes of it to another. We know of no principle of law, nor of -any decision, which goes to this length. The facts do not make a case where the owner of property has put it in the possession of another with indicia of ownership so as to invoke the rule that where two innocent persons must suffer by the act of a third, he who has enabled the former to occasion the loss must sustain it. The Company, when it became the equitable owner of the stock, placed the certificate in the drawer of its president; it did not place it in the possession, real or constructive, of Tyler. Nor was there any reason existing for suspecting the integrity of Tyler. He had been an officer of the Company, trusted, and apparently deserving trust, since the year 1876. Nothing had occurred during all this time to cause the Company, or his fellow officers, to doubt his honesty and faithfulness, and so far as appears, the abstracting and using this surrendered cer-' tificate was his first act of malversation during his employment. If the Company had had reason to suspect the honesty of Tyler, a different question would be presented. It is not negligence, but ordinary care and prudence, to deal with one who has proven himself worthy of confidence in the belief that he remains honest, and trust him accordingly, even though it should turn out that he afterwards, yielding to temptation, has betrayed his trust. As remarked by Williams, J., in Ex parte Swan, 7 C. B. (N. S.), 447; “It is one thing to say that a man shall be answerable for such immediate consequences of his acts as a reasonable man might foresee and dread, and therefore shun. But it is another and very different proposition to maintain, that a man shall forfeit his property because he has done an act which will not be perilous unless others are guilty of misconduct which that act does not cause.” The injury to the Bank and to MeDowell was not the natural consequence of the leaving of the certificate in the president’s drawer, or one which might have been reasonably anticipated. The rule, and we believe the true rule, is stated by Blackburn, J., in Swan v. N. B. A. Co., 2 H. & C., 182, thus: “The neglect must be in the transaction itself, and be the proximate cause of leading the party into the mistake; and also, as I think, that it must be the neglect of some duty that is owing to the person led into that belief, or, what comes to the same thing, to the general public, of. whom the person' is one, and not merely neglect of what would be prudent in respect to the party himself, or even of some duty owing to third persons, with whom those seeking to set up the estoppel are not privy.”

It is urged that the Company ought, before issuing a new certificate to Clark, to have required a bond of indemnity from Tyler. But No. 61 was not a lost or destroyed certificate within the meaning of the statute ; nor was it outstanding. It was in the possession and custody of the Company; for the time mislaid, but still in its control. Tyler had already done respecting it all that he was to do, or could then have been required to do.

It is further insisted that, on the authority of Bank v. Railway Co., 21 Ohio St., 221, Clark having but an equitable title to the stock, cannot prevail against the Bank’s legal title. But this proposition assumes the very point in controversy, and the trouble with it is that the Bank got no title. It took its pledge from one who did not own the property; in other words, from a thief.

A review of the authorities we regard as unnecessary and content ourselves Avith the citation of the following cases: Moores v. Bank, 111 U. S. 156; Far rington v. Railroad Co., 150 Mass., 406; Insurance Co. v. Railroad Co., 139 N. Y., 146; Hill v. Jewett Pub. Co., 154 Mass., 172; Knox v. Eden Musee Co., 148 N. Y;, 441; 1 Cook on Corp., Sec. 359; Barstow v. Savage Mining Co., 64 Cal., 388; Birmingham Land Co. v. Dennis, 85 Ala., 565; Swim v. Wilson, 90 Cal., 126; O’Herron v. Gray, 168 Mass., 573; Shaw v. Spencer, 100 Mass., 382.

Much stress is laid by counsel for plaintiffs in error upon the case of Railway Co. v. Bank, 56 Ohio St., 351, and it is insisted that the case at bar is ruled in their favor by that case. We think not. That was a case of over.issue by an officer having apparent authority to issue. This is a case of a stolen certificate. The substance of the holding in the case cited is, as expressed in the third paragraph of the syllabus, that the company is charged with the duty of observing care in the issue of stock, and of supervising their agents charged with the performance of the duty, and the want of care found against the corporation was that it negligently permitted its secretary to have possession of certificates of stock, signed by its president and having thereon the corporate seal, in excess of its authorized capital, and thus afforded that officer the opportunity of fraudulently issuing certificates of stock. It is apparent that this case presents a radical distinction when placed in contrast with the case at bar. There the negligence of the company was an essential feature; here it is distinctly found that the Company was not negligent. Whether the language of the opinion and syllabus, in all particulars, is or not of too broad a character we need not discuss. Suffice to say that the law of the case is the judgment of the court upon the facts found, and that, and that alone, is what is binding as a precedent. The essential facts being different, the case does not apply.

The case at bar may be summed up in a paragraph. The secretary of the corporation was a holder of its stock represented by a valid certificate. He pledged the stock to the Company as security for a debt owing to it, and assigned the certificate in blank and delivered it so assigned to the Company. It was then placed by the president in his drawer in the Company’s safe. Later the secretary, by private agreement with the president, sold the certificate to him outright. Without fault of the Company, or of the president, the certificate had become mislaid. Some time after, the secretary found and fraudulently abstracted the certificate from the drawer and pledged it for a private debt to an innocent taker who accepted the security without inquiry. This pledgee took no title.

The judgment of the circuit court will be

Affirmed.

Williams, C. J., Burket, Davis, Shauok and Price, JJ., concur.


author: Burket, J.

text:
    The City of Dayton et al. v. Bauman.

      Power of assessment "by cities — Section 6 of Article IS of constitution — Limitation of same by Section 19 of Article 1— Inviolability of private property — Compensation for land appropriated for public use.

    1. The limitation of Section 19 of Article 1 of the constitution on Section 6 of Article 13 as to assessments, goes to the full extent of prohibiting the raising of money directly or indirectly by assessment to pay compensation, damages or costs for lands appropriated by the public for public use. Railway Co v. Cincinnati, 62 Ohio St., 465, approved and followed.
    2. Said limitation does not affect or prohibit the raising of money by assessment to pay for surface improvement of streets, sewers, etc., so long as the assessment does not exceed the special benefits conferred. "Walsh v. Barron, 61 Ohio St., 15, approved and followed.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Montgomery county.
    The city of Dayton appropriated by proper legal proceedings certain lands for the extension of two streets, Monroe and Long, and haying paid the compensation, damages and costs, made an assessment upon the abutting, adjacent and contiguous lots for the purpose of raising money to reimburse its treasury for the money so paid out, or else to raise money to pay the bonds issued by the city by means of which it pledged the public faith and credit of the city and thereby raised money with which it paid said compensation, damages and costs. Which method was pursued does not clearly appear, but that the assessment was for the purpose of paying in some form said compensation, damages and costs is conceded.
    None of the lots or lands of Mr. Bauman were appropriated, but an assessment was made on his lots for the payment of compensation, damages and costs awarded to others whose lots had been appropriated for the extension of said streets.
    He enjoined the city and proper officers from enforcing the assessments, and the circuit court having decided the case in his favor, the city came here on error, seeking to reverse the judgment below.

      Mr. Edwin P. Matthews, city solicitor, Mr. Charles J. Hunt and Mr. Albert II. Morrill, corporation counsel, for plaintiff in error.
    The presumptions are in favor of the assessments and it is to, be presumed that all jurisdictional and other steps were taken, unless alleged in the petition to be otherwise. Bolton v. Cleveland, 35 Ohio St., 319; Spangler v. Cleveland, 43 Ohio St., 526.
    It is provided that the city may specially assess the cost of opening streets. Sections 2263 and 2264, Rev. Stat.
    Section 2264, Rev. Stat., as it existed at the time this assessment was made, authorized the council to determine in how many installments and at what time the assessments should be payable. 83 Ohio Laws, 171.
    In the cases provided for in Sec. 2263, Rev. Stat., of which this is one, it is the duty of the clerk to certify assessments to the auditor to be placed upon the tax duplicate and collected as other taxes. Section 2265, Rev. Stat.
    In all such .cases, the city must do as it did in this case, viz., pay at least the one fiftieth of the cost. Section 2263, Rev. Stat.
    . Special assessments shall be payable by the owners of the property assessed, personally, by the time stip^ ulated in the ordinance, and shall be a lien from the date of the assessment upon the respective lots and lands assessed. Sections 2285 and 2297, Eev. Stat.
    The city elected to place these assessments upon the tax duplicate for collection. After this is done, an action cannot then he brought for the collection of the assessment, but collection must be made by the treasurer. Fremont v. Hayes, 7 Dec., 263; 4 N. P., 379.
    The amended petition does' not allege that the plaintiff below was prejudiced by the action of the city clerk and does not allege facts to show that he was, and it is to be presumed that he was not. Slavin v. Greene, 4 Dec., 99; 2 N. P., 39.
    The irregularity upon the part of the clerk, being merely in a formal matter, should be disregarded. Section 2327, Rev. Stat.
    The assessing ordinances were passed on one reading. This was sufficient for they were neither of a permanent nor of a general nature. Section 1694, Rev. Stat. Upington v. Oviatt, 24 Ohio St., 232; Cincinnati v. Bickett, 26 Ohio St., 49; Guernsey Co. (Commrs.) v. Cambridge, 3 Circ. Dec., 669; 7 C. C. R., 72.
    The general assembly is required to restrict the power of municipalities as to taxation and assessments. Constitution, Art. 13, Sec. 6.
    Both these powers are thus recognized.
    In a general sense a tax is an assessment, and an assessment is a tax, but there is a well recognized distinction between them, an assessment being confined to local impositions upon property for the payment of the cost of public improvements in their immediate vicinity, and levied with reference to special benefits to the property assessed. Lima v. Cemetery Assn., 42 Ohio St., 128.

      The power to make assessments had been in constant use before the adoption of the constitution of 1851, and is now sanctioned by that instrument. Raymond v. Cleveland, 42 Ohio St., 522.
    As the legislature is required to restrict the power of assessment, it follows that the power exists and that the legislature may provide for its exercise. Hill v. Higdon, 5 Ohio St., 243.
    Municipalities may appropriate lands for streets. Section 2232, Rev. Stat.
    When the corporation appropriates land for the purpose of opening and extending a street, the cost may be assessed upon the general tax list. Sections 2263, 2264, 2270, 2273, 2277, 2278, 2279 and 2280, Rev. Stat.
    It is not alleged that the lots and lands benefited and to be assessed were not specifically designated before the improvements were made, nor that any requirement of the statute was omitted, and the presumption is that all of the provisions of the law were complied with. Ward v. Barrows, 2 Ohio St., 241; Coombs v. Lane, 4 Ohio St., 112; Reynolds v. Schweinefus, 27 Ohio St., 311.
    It has been repeatedly held in the Supreme Court of this state that special assessments may be made to pay the cost of land taken for street purposes. Raymond v. Cleveland, 42 Ohio St., 522; Chamberlain v. Cleveland, 34 Ohio St., 551; Krumberg v. Cincinnati, 29 Ohio St., 69; Meissner v. Toledo, 31 Ohio St., 387.
    No part of the Bauman property having been taken, the question in the Norwood-Baker case and in the Cincinnati case in 62 Ohio State, does not arise here. In the Norwood-Baker case, the court says: “Undoubtedly, abutting owners may be subjected to special assessments to meet the expenses of opening public highways in front of their property. Such assessments, according to well established principles, resting upon the ground that special burdens may be imposed for special or peculiar benefits accruing from public improvements.” Norwood v. Baker, 12 O. F. D., 228; 172 U. S., 269.
    In Railway Company v. Cincinnati, 62 Ohio St., 465, all that was considered was the application of Sec. 19, Art. 1 of the Ohio Constitution, to the state of facts therein presented.
    Why these statements were necessary to the decision in that case is not apparent, and they do not contain what has always been regarded as the law in this state, and for that matter in the whole country. Cooley on Taxation, pp. 611, 612, 633.
    Under Sections 2704 and 2705, of the Revised Statutes, municipalities may borrow money and issue bonds, in anticipation of the collection of special assessments, to pay for improvements, and this is what is universally done, not only in the matter of opening streets, but where street paving, sewer, and other public improvements are made, which are specially assessed.
    The long line of decisions in this state upon which special assessments of the kind in question have been based, and which are in harmony with the decisions of other states and of the United States, should be upheld on the principal of stare decisis and ought n„ot to be lightly overruled. Schroder v. Overman, 61 Ohio St., 1.
    In the case at bar, the assessments were made according to benefits and no claim is made that Bau man’s property was not benefited to the extent of the assessments, by the opening of the streets, but the plain inference from the amended petition is that it was. No property or money was taken, or attempted to he taken, without due process of law. The provisions of the statutes were complied with, and it has been held by this court and by the Supreme Court of the United States that assessments made under such statutes as ours, when coupled with the right of the property owner to question in court such assessments as he claims are illegal, are made by due process cf law. Caldwell v. Carthage, 49 Ohio St., 334; Turnpike Co. v. Parks, 50 Ohio St., 568; French v. Paving Co., 181 U. S., 324; 45 Bull., 401; Wight v. Davidson, 181 U. S., 371; 45 Bull., 428; Detroit v. Parker, 181 U. S., 399; 45 Bull., 431.
    A special taxing district, viz., of the property benefited, was made by the city under the provisions of the statute, and the assessment was laid according to benefits. This, the Supreme Court of the United States hold is constitutional and can be done. Webster v. Fargo, 181 U. S., 394; 46 Bull., 77.
    Under the doctrine of the case in 62 Ohio State, the land for the pumping station, having been taken by the city, would have to be paid for by the city, and the cost could not be included in the amount assessed for the sewers. We do not believe this is the law — and the case might easily occur. In Dayton we have a pumping station in connection with the sanitary sewers, and if the city had not happened to own the land upon which it is located, we would have had to acquire same either by purchase or by condemnation, and the cost would most certainly have been included in the cost of the sewers, and would have been assessed.
    The decision of the circuit court in this case is not in accord. with the decisions of the Supreme and circuit courts in the following cases: Krumberg v. Cincinnati, 29 Ohio St., 69; Norwood v. Ogden, 8 Circ. Dec., 383; 18 C. C. R., 869.
    This case involves the constitutionality of Sec. 2264, Rev. Stat., and of other sections authorizing special assessments, and involves the construction of Sec. 19, Art. 1, and of Sec. 6, Art. 13 of »the constitution of Ohio.
    The present case does not come within the rule recently laid down by this court, that Sec. 19, Art. 1, of the constitution of Ohio, prohibits the benefits, resulting to a piece of property by reason of the opening of a street contiguous thereto, being considered in making an assessment to pay for such opening. For that rule was applied to a case in which part of a piece of property had been condemned and compensation awarded to the owner thereof, and the cost of such condemnation, including the amount awarded to the owner, assessed against the remaining property. In the present case no part of the property assessed has been taken, and hence the city of Dayton is not, by making such assessment, asking Bauman to pay back to it the amount which he has already received.
    This principle, that the finding of the city council as to benefits conferred by a certain improvement is conclusive on all parties concerned, was laid down by this court in the case of Chamberlain v. Cleveland, 34 Ohio St., 551.
    The same principle is laid down by Cooley in his work on Taxation, 2nd ed., at page 661; Elliott on Roads and Streets (2 ed.), at Sec. 556.
    In the present case the land of the defendant in error was not distant, but contiguous to and abutting on the improvement for which it was- assessed.

      The same principle is laid down in the following cases: Cruger, In matter of, 84 N. Y., 619; State v. District Court, Ramsey Co., 29 Minn., 62; King v. Portland, 2 Ore., 146.
    Even the text writers and courts which hold that' the state has no power to assess arbitrarily the cost of the improvement upon the abutting property, concur in declaring that they have the power to assess an amount equal to the benefits derived from the improvement, and that the exercise of such power in this manner is just and equitable. Dillon Municipal Corporations, at Secs. 752 and 761; Cooley on Taxation, 639; Elliott on Roads and Streets (2 ed.), Sec. 543; Mr. Hare on American Constitutional Law7, pages 305 to 315.
    By a review7 of the decisions we find that the courts in every jurisdiction have upheld this theory of assessments, and sustained those levied in accordance w7ith it. So uniform and so decisive are the authorities on this subject, that it is scarcely necessary to do more than comment on a few7 of the leading decisions.
    Their purpose of adhering to this doctrine w7as clearly expressed in the case of Spencer v. Merchant, 125 U. S., 345; and also in Parsons v. District of Columbia, 170 U. S., 45.
    The intention of the Supreme Court to stand by its early decisions on assessments levied according to benefits has lately been expressed in the case of Norwood v. Baker, 12 O. F. D., 228; 172 U. S., 269.
    This intention is still further showm by the recent case of French v. Paving Co., 181 U. S., 324.
    The highest tribunal of every state in the Union has, in the absence of constitutional prohibitions^ followed this theory adhered to by the Supreme Court of the United States.
    Further, it has been repeatedly held by this court that the cost of street improvements, whether such improvements consisted in acquiring land for street purposes, or of grading, curbing and paving them after their acquisition, could be assessed against such adjacent, contiguous or abutting property as was peculiarly benefited by the improvement in a degree different from the benefits received by the public at large. Meissner v. Toledo, 31 Ohio St., 387; Walsh v. Barron, 61 Ohio St., 15.
    The only case' in which any court has apparently made a distinction is in the decision rendered by this court in the case of the Railway Co. v. Cincinnati, 62 Ohio St., 465.

      Messrs. Dwyer & Roehm and Messrs. Young & Young, for defendants in error.
    It appears from the petition that the assessments sought to be enjoined are both to pay compensation and expenses connected with the opening of two public streets in the city of Dayton. The provisions of the statute seem to justify the city in assessing these amounts according to the benefits upon the abutting adjacent and contiguous property.
    But the question now is is such procedure and are such statutes constitutional under the constitution of Ohio?
    The constitution contains the following provision, namely, Sec. 19 of Art. 1, concerning the inviolability of private property; Sec. 6 of Art. 13 -concerning the the organization of cities and Sec. 2 of Art. 12 concerning taxation by uniform rule.

      The provision as to the inviolability of private property clearly prohibits the taking of private property for private use without the consent of the owner. Reeves v. Wood Co., 8 Ohio St., 333.
    Nor could private property be taken for private use even were there no constitutional provisions on the subject. Shaver v. Starrett, 4 Ohio St., 494.
    The power of eminent domain is a general incident to sovereignty and is conferred on the general assembly by the general grant of legislative power. Section 7 of Art. 2; Giesy v. Railroad Co., 4 Ohio St., 308.
    Section 19 of Art. 1, is an express limitation in the power.
    It appears from the petition that the assessment enjoined was sought to be made to pay the compensation and expenses in connection with the taking of private property to open public streets. A public street in a city is a road open to the public without charge. Such a road may be opened by proceedings in condemnation where the public welfare requires it. The taking of private property for such public purpose is therefore unquestionably in itself within the power of a municipal corporation. It can only be taken by the public and for the public and it must be aid for by the taker and the taker is the public.
    After the property has been taken upon the theory that it is taken by the general public for the general public, how is it competent for this general public (in this instance'the municipal corporation), after this theory of public use has served its temporary purpose, to then turn around and take the position that the use, benefit and advantage of the improvement is limited in reality, to a few individuals, owners of private property, in the vicinity, who are asked to pay the entire expense, and to seek to compel them to do so by assessment against their will.
    If it be true, as contended, that the land taken for a public street must be paid for by the public, then it must be paid for out of the general revenue, and general revenue, under Art. 12a, Sec. 2, can only be raised by taxation; that is, by a tax levied by a uniform rule, not by an assessment. Hill v. Higdon, 5 Ohio St., 243; Schroder v. Overman, 61 Ohio St., 1.
    The principles laid down in the above cases are certainly directly in point and are decisive of the present case. It follows from them that the assessments sought to be enjoined are unconstitutional, invalid, and were properly enjoined, and the judgment of the circuit court should be affirmed. Along the same line we refer the court to the following: Hammett v. Philadelphia, 65 Pa. St., 146; Washington Avenue, 69 Pa. St., 352; State v. Elizabeth, 37 N. J. L., 330; State v. Mayor, 37 N. J., 415; Tide Water Co. v. Carter, 18 N. J. Eq., 518; Macon v. Patty, 57 Mass., 378; Hall v. Kenosha, 29 Wis., 205; Jones v. Water Commissioners, 34 Mich., 273; Chicago v. Baer, 41 Ill., 306; Lee v. Ruggles, 62 Ill., 427; Burr v. Carbondale, 76 Ill., 455; Crawford v. People, 82 Ill., 557.
    Whether private property taken for street purposes is paid for out of the treasury by general revenue direct or out of the proceeds of bonds sold in anticipation of general revenue, in either event the city has no right to reimburse itself by assessment against the property of a few adjacent landowners.
    These principles are clearly laid down in the opinion in the case of Railway Co. v. Cincinnati, 62 Ohio St., 465, in which, among other things, Burket, J., delivering the opinion of the court, says: “In Zanes

      ville v. Richards, 5 Ohio St., 589, this court held that Sec. 2 of Art. 12 of the constitution is a limitation upon the power of taxation which the general assembly can grant to a municipality under this section, and that general revenue is required to be raised by uniform levy on all taxable property, alike without exemption.”
   Burket, J.

Some technical errors are alleged in the petition, but the question as to the power of the city to make the assessment, is the only one regarded as of sufficient importance to warrant a report of the case.

It was determined in the case of Railway Company v. Cincinnati, 62 Ohio St., 465, that Sec. 19 of Art. 1 of the constitution is a limitation on Sec. 6, Art. 13, as to the power of assessment, and with that holding we are still fully satisfied. In that case there was one dollar awarded to the railway company as compensation for lands appropriated, and over five hundred dollars assessed upon the remaining lands for compensation, damages and costs paid for lands taken in the same appropriation proceedings. It therefore seemed clear in that case that the assessment of over five hundred dollars was «not an assessment back onto the remaining lands, to raise money to pay the one dollar and costs, but was in part at least an assessment to pay for compensation awarded to others; and as the whole assessment was held unconstitutional, the holding was in. effect that no assessment could be made to raise money to pay compensation for lands taken by appropriation. We so understood that case, and what was said in the opinion was with reference to that understanding, and was not obiter, but argument to show that money could not be constitutionally raised by assessment to pay compensation, damages and costs for lands appropriated by the public for public use.

The limitation of said section 19 of the constitution on said section 6 as to assessments, goes, not only to the extent of preventing the assessment of the compensation, damages and costs back onto thé lands of the owner remaining after the taking, but to the full extent of prohibiting the assessment of compensation, damages and costs for land so appropriated, upon any real estate whatever. In short, money cannot be raised by assessment to pay such compensation, damages and costs, but such money must be raised by taxation. Were it otherwise, said section 19 of the constitution could be evaded and that done by indirection which cannot be done directly.

The public appropriates the land for public use, and the public must pay for the land it so takes. Nothing less than the public can appropriate lands by legal process for public use. If an assessment district should be formed and a petition filed by such district to appropriate private property for the use of such district, or the public, a demurrer to such petition would be sustained on the ground that the constitution gives no power of appropriation of private property to such assessment district, such district not being the public, and the power of appropriation being given by said section 19 to the public only.

The power of appropriation being given to the public only, and only for public use, it follows that the public, the taker, must pay for what it takes, because he who takes from another should himself make restitution, and not compel others to pay for what they have not taken. To permit the public to take private property for public use, and then compel private persons to pay for such property against their will, upon the theory that their lots and lands are benefited, would lead to extravagance and often to oppression, while to compel the public, which takes the property for public use, to pay therefor, leads to economy and prudence in taking private property for public use, and therefore said section 19 was made a limitation on said section 6, and the power of raising money by assessment to pay for private property taken for public use, is thereby prohibited.

It is urged that in this case no property of the defendant in error was taken, and no assessment made back on the property remaining after such taking, and that therefore the principle in Railway v. Cincinnati, supra, does not apply. ’ The answer is that the principle of that case is that said section 19 is a limitation on said section 6 to the extent of a total prohibition of raising money by assessment to pay for private property taken by the public for public use. The principle is not that those only whose property has been taken are free from assessment, but that no assessment can be made to raise money to pay for property taken by the public for public use.

To exempt those from whom some property has been taken, and assess others, would often lead to inevitable injustice. As the constitution was adopted to promote our common welfare, and for the equal protection and benefit of all, and as that instrument is consistent throughout, a construction which necessarily leads to injustice cannot be a true one, and should not be adopted, and therefore the construction of section 19 is and must be that private property taken by the public for public use, must be paid for by the taker by taxation on the general list, and not by assessment on a comparatively small district.

It is also urged that if said section 19 is a limitation upon said section 6 so- as to prevent the raising of money by assessment to pay for private property taken for public use, that the same limitation prevents the raising of money by assessment to pay for sewers, surface improvement of streets, etc. This does not follow, for the reason that in sewers, surface improvement of streets, etc., there is • no taking of private property by the public for public use; but on the contrary the public confers a special benefit upon the property and then enforces an assessment not exceeding the benefit so conferred. If the assessment should exceed the special benefit, it would be unconstitutional as to such excess, by reason of the limitation of said section 19 on the power of assessment. It was so held in Chamberlain v. Cleveland, 34 Ohio St., 551, and Walsh v. Barron, 61 Ohio St., 15.

While a séwer or surface improvement of a street may, to some extent, be used by the public, and therefore be in part for public use, the power of assessment exists only to the extent that the improvement is for the special benefit of the lots and lands to be assessed over and above the general benefit to the public. Said section 19 is a limitation upon the power of assessment for the use of the public, because to assess private property beyond the special benefits conferred thereon by an improvement, to pay for such improvement for the use of the public, would be taking private property for public use without first making compensation therefor; while to take back by way of assessment a part or all of the special benefit conferred by the improvement, is not a taking of private property for public .use, and such assessments are not prohibited by said section 19 of the constitution.

It is urged that to affirm the judgment in the case at bar involves the overruling of Meissner v. Toledo, 31 Ohio St., 387; Chamberlain v. Cleveland, 34 Ohio St., 551; Raymond v. Cleveland, 42 Ohio St., 522, and Krumberg v. Cincinnati, 29 Ohio St., 69. This last case was reviewed in Railway v. Cincinnati, 62 Ohio St., 465, 482, and needs nothing further here. Meissner v. Toledo, 31 Ohio St., 387, construed the statutes then in force, and did not pass upon their constitutionality, but assumed them to be constitutional. The question of their constitutionality was not raised or decided. The case of Chamberlain v. Cleveland, 34 Ohio St., 551, was decided in the light of Cleveland v. Wick, 18 Ohio St., 303, and the question as to whether money could be raised by assessment to pay for private property taken for public use was not raised, and was not argued or decided, but was conceded by counsel and assumed by the court. In the subsequent case of Raymond v. Cleveland, 42 Ohio St., 522, the judge delivering the opinion, in speaking of that case on page 525, says: “It is sufficient to say that the validity of the statutes upon the subject was not questioned, nor was the power to make an assessment for the improvement doubted.” The same is true of Raymond v. Cleveland, 42 Ohio St., 522. The validity of the statute and the power to make the assessment were both admitted in that case, and the only question argued, considered or decided was as to the proper construction of the statute, assuming the same to be constitutional. The question now before this court in the case at bar, was not raised in any of those cases, but was regarded as decided by Cleveland v. Wick, supra, and this last case having been overruled, the superstructure so far as founded thereon must fall. As to the questions passed upon in those cases in the construction of said statutes, and not their constitutionality, we regard the cases sound, and not in conflict with the conclusion reached by the court in this case.

Judgment affirmed.

Spear, Davis and Shauck, JJ., concur.


author: By the Court :

text:
    The Baltimore & Ohio Railroad Co. v. Glenn.

      Husband has right of action, at common Jaw, against one who wrongfully injures his wife — Right not abridged by Sections 8108 to 311~, Rev. Stat.

    At common law, a husband has a right of action against one who wrongfully, or through negligence injures his wife, to recover for the resulting loss of her services, and Tor his necessary medical, surgical and other expenses in healing her injuries; and this right of action is not abridged or affected by the legislation embraced in Sections 3108 to 3117 inclusive of the Revised Statutes.
    (Decided June 10, 1902.)
    Error to the Circuit Court of Licking county.
    This case was heard and submitted with No. 7196, The Baltimore & Ohio Railroad Company v. Melissa Glenn. In that case Mrs. Glenn recovered a judgment in the lower court against the plaintiff in error, for damages sustained through the alleged negligence of the servants of the railroad company in so operating and running an engine in its yards over a public street in the city of Newark, as to strike , her and crush her left foot in such a manner as to require amputation above the ankle. The injuries alleged in her case were the loss of the foot as a permanent injury, and the pain and suffering incident thereto. This court has recently affirmed the judgment in her favor in that case.
    The defendant in error m this case, James P, Glenn, is the husband o.f Melissa Glenn, and he brought his action against the railroad company, charging in his petition the same acts of negligence on the part of the company, and the same injuries to the wife which were contained in her petition. The recovery sought by the husband in this case, is for the loss of the services of the wife which resulted from her injuries, and also for money expended by him in her surgical and medical treatment in the endeavor to cure and heal them.
    The railroad company filed a general demurrer to the petition of the husband in this cáse which was overruled by the trial court. An answer filed denied all allegations of negligence made against it, and charged contributory negligence upon the wife, Melissa. This chárge was denied by a reply.
    On the issues joined, the jury found for the plaintiff and assessed his damages. Thereupon the company moved the court for judgment on the pleadings notwithstanding the verdict. This motion was overruled, and also a motion for a new trial, and judgment was entered on the verdict. The circuit court affirmed this judgment, and error is prosecuted in this court to reverse both judgments.
    The same grounds of error assigned for the reversal of the judgment of the wife, Melissa Glenn, are assigned in this case, with the additional claim that since the passage of the law found in Secs. 3108 to 3117, inclusive of the Revised Statutes, the husband has no right of action for the loss of the services of his wife occasioned by the negligence of another, nor, for her necessary surgical and medical attention; and this question is preserved in the record by the demurrer to the petition, the motion for judgment on the pleadings and by exceptions to the charge of the court

      Mr. J. H. Collins and Messrs. Kibler & Kibler, for plaintiff in error.
    Of course, it is conceded that at common law the plaintiff below would have a cause of action for the injury to his wife.
    But our contention is that under Secs. 3108-3117 of the Revised Statutes of Ohio, the common law rule upon this subject is entirely changed. The two elements of damages which the plaintiff sought to recover were for loss of the services of his wife and for money expended for medical attention. Under the sections of the statute referred to the defendant in error was not the owner of his wife’s services. They belong to her exclusively, and if any recovery was had therefor, she was entitled to it in her suit against the company, and the same may be said of the medical expenses. That was her debt for which her husband was not liable, and if he paid it, he has no more right to recover than would a stranger. He was not liable for her debts, nor she for his. It is therefore respectfully submitted that the defendant in error was not entitled to recover any judgment against the railroad company.

      Mr. B. C. Smythe and Mr. S. M. Hunter, for defendant in error.
    No law has yet been passed depriving the husband of the services of his wife. In this case, he is not suing for the wages of her separate labor, nor for the violation of her rights. He is simply suing for the loss of what was his own. The law still casts upon him the duty of caring for her, and the expense of her cure. And whoever deprives him of those wifely services, or makes those expenses necessary, must compensate him. Pomeroy’s Remedies, Sec. 242; Porter v. Dunn, 131 N. Y., 314; Brooks v. Schwerin, 54 N. Y., 343; Reynolds v. Robinson, 64 N. Y., 589; Coleman v. Burr, 93 N. Y., 17; Shanahan v. Madison, 57 Wis., 276.
   By the Court :

In the case of the plaintiff in error against Melissa Glenn, recently affirmed, this court has decided all the questions of error which are common to both cases, and they will not be further considered in this opinion. Here, however, it is asserted by the plaintiff in error, that the wife, Melissa, having recovered for the injuries she sustained through the negligence of the railroad company, the husband, defendant in error, is without a right of action for his loss of her services while disabled by such injuries, or for expenses necessarily incurred by him in caring for her and healing her of the same. This assertion is connected with the proposition that if there once existed at common law in this state a right of action in the husband to recover on such grounds, it has been superseded or taken away by statute. It is not seriously questioned by counsel, that at common law, the husband is entitled to the society and services of his wife, and that for the invasion of such right to his damage, he could maintain an action. And this right of the husband is not affected by the fact that the wife has sued and recovered for the damages she has sustained.

It is not averred in the answer in this case, nor claimed in argument, that Mrs. Glenn, in her petition against the railroad company, made any demand for the expenses of her care, or medical or surgical treatment; and of course the loss of her services to the husband, while she was disabled by reason of her injuries, could have formed no part or element of her suit. Hence, it is still the law, that for such expenses and loss of services, the husband has a right of action against one whose negligence or wrong inflicted the injuries, unless the right is taken away by legislation. It is said this change has occurred by reason of Revised Statutes, Secs. 3108 to 3117, inclusive. These sections are found under the title “Husband and wife,” and they make some brief provisions regarding the marriage relation, some of which are not new to, or an improvement upon the common law: For example, Sec. 3108 states that “husband and wife contract toward each other obligations of mutual respect, fidelity and support;” and Sec. 3110 makes it the duty of the husband to support himself, wife and minor children. If he is unable to do so, the wife must assist him so far as she is able. There is nothing new or novel in this statement of duty. The only other section which makes any approach to our subject is 3111, which provides that “neither husband nor wife has any interest in the property of the other, except” dower in real estate. This section does not abridge the common law right of the husband in this case. He is not asking for any interest in the property of the wife. She never had any interest in his cause of action. For her personal injuries and suffering incident thereto, she has exercised her separate right of action, but she has not and could not assert in her action the grounds for recovery which exist only in the husband.

In brief, there is nothing in these sections, or any of them, which abridges the right of the husband to recover as he has done in this case. The holdings of the lower court being in harmony with these views, its judgment is affirmed.

Judgment affirmed.

Burket, Speak, Davis, Shatjck and Price, JJ., concur.