« AnteriorContinuar »
Appeal from Circuit Court, Cook county; , to a license to be remarried. We have careJ. W. Mack, Judge.
fully considered all that is urged in the brief Petition by the people, on the relation of of counsel in support of this contention. The Henry Buenger and another, for writ of prohibition of remarriage within the specified mandamus commanding Peter B. Olsen, as time after the rendition of a decree of county clerk, to issue a marriage license to divorce is to be found in an additional secrelators. From a judgment awarding the tion, added to and as an amendment to the writ, defendant appeals. Reversed.
act entitled "an act to revise the law in Harry A. Lewis, William F. Struckmann, relation to divorces,” in force July 1, 1874, and Frank L. Shepard, for appellant. Elmer
and it is argued that the title to that act is E. Ledbetter, for appellees.
not broad enough to include legislation chan
ging the statute providing for and with BOGGS, J. On the 21st day of August, reference to the issuance of licenses to 1905, the relator appellees, Henry Buenger marry, and therefore cannot, within the and Eliza Grimes, applied to the appellant, constitutional intent, be held to apply to apthe county clerk of the county of Cook, for a plications for the issuance of such licenses. license to be joined in marriage. Eliza This contention overlooks the fact that at Grimes had been lawfully married to one the same session of 1905 of the General AsHerman Mischler, and on the 28th day of sembly an act was adopted amending the act June, 1905, a decree was entered in the cir- | to revise the law in relation to marriage, cuit court of Cook county dissolving such approved February 27, 1874, under which marriage relation at the application of said licenses to marry were authorized to be Eliza, on the ground that her said husband issued. Section 6 of the amendment of 1905 had been guilty of extreme and repeated to the marriage law, among other things, cruelty to her and had deserted and abandon made it the duty of the county clerk to ed her. The county clerk refused to issue | obtain an affidavit from at least one of the the marriage license, for the reason that the parties contemplating the marriage, "for the act of the General Assembly approved May purpose of ascertaining the age of the parties 15, 1905, in force July 1, 1905 (Laws 1905, p. and the legality of the contemplated mar194), declared that a person who had been riage." Section 13 of the said marriage act, formerly married and had been granted a ' prior to the amendment of 1905, made the divorce on the ground that his or her spouse clerk liable to the payment of a fine in the had been guilty of extreme and repeated event he issued a license for the marriage cruelty or desertion and abandonment should of persons under legal age without the connot marry again within one year from the sent of the parent or guardian of such minor. time the decree for divorce was granted, and By the amendment of 1905 to said section because sections 6 and 13 of the act "to re- 13 the county clerk is declared to be guilty vise the law in relation to marriages," ap of a misdemeanor and made subject to a fine proved February 27, 1874 (Hurd's Rev. St. of not less than $100 nor more than $500 if 1903, c. 89), as amended by the act of the he shall "knowingly issue a license for the Legislature approved May 13, 1905, in force marriage of persons who are legally inJuly 1, 1905 (Laws 1905, p. 317), prohibited capable of contracting a marriage." It will the county clerk, under penalties and punish- thus be seen that the amendment of 1905 to ments therein specified, from issuing a li- | the divorce act is not an amendment to the cense for the marriage of a person who was marriage statutes, and therefore it was not legally incapable of contracting a marriage. necessary to state in the title to the divorce The relators thereupon filed their petition in amendment anything with reference to marthe circuit court of Cook county for a writ riages. The statute relating to marriages, of mandamus commanding the said county as amended, does not, nor did it originally, clerk to issue such marriage license to them. purport to state all grounds which render A demurrer was interposed and overruled, persons incompetent to enter into the marand, the appellant having elected to abide riage relation. When application is made to his demurrer, the prayer of the petition was the county clerk to issue a license to persons granted and judgment entered awarding the to marry by virtue of the provisions of the writ. The record is before us for review. amendment to section 3, it becomes his dirty
It is conceded that in terms the legislation to inquire into everything affecting the comof 1905 declared a person incapable of con | petency of the persons applying for the litracting marriage within one year after such cense to enter into such relation. His duty person had been divorced, by decree of a under this section, prior to the amendment, court, from a former husband or wife on the only required him to inquire as to the age ground of extreme and repeated cruelty or of the parties. By the amendment it became desertion and abandonment, for the statutory his duty, in order to avoid liability to pay a period. Appellees, however, contend that fine, etc., to refer to the divorce act, and the decree divorcing the relator Eliza from determine whether such persons so applying, her former husband was entered June 28th who had been divorced, were competent and prior to the time when such legislation persons to marry. came into force, and that therefore the en The enactments are neither ex post facto actnients had no application to her right laws nor does the construction we give them
(73 Ohio St. 16) BALTIMORE & O. R. CO. V. CHAMBERS.
(Supreme Court of Ohio. Oct. 31, 1905.) DEATHI-WRONGFUL ACT-RIGHT OF ACTION.
No action can be maintained in the courts of this state upon a cause of action for wrongful death occurring in another state, except where the person wrongfully killed was a citizen of the state of Ohio.
(Syllabus by the Court.)
make them operate retrospectively. Decrees granting divorces which were entered before July 1, 1905, the date at which the acts, respectively, became effective, remain in full force and virtue and wholly unaffected by the enactments. That which is forbidden and made the subject of the imposition of penalties and of criminal punishment are acts of the parties after the 1st day of July, 1905. Prior to that date a person who had, within a period of less than one year, been divorced might have lawfully applied for and received license to remarry, and the clerk might lawfully have issued such license within that period. But under the amendatory acts the remarriage of such divorced person within the prescribed period was prohibited, and that which is declared illegal and rendered punishable is the act subsequent to July 1, 1905, and is not any impairment of the decree of divorce. The right to remarry does not accrue from a decree of dirorce, but from the existing law regulating the issuance of licenses to marry. Prior to July 1, 1905, under the statute then in force, male persons over the age of 17 years and females over the age of 14 years were competent to enter the marriage relation. After the amendment of 1905 the age of competency to contract was raised and persons of those ages became no longer competent to be joined in marriage. The amendment, therefore, operated to render incompetent to marry after July 1, 1905, on the ground of nonage, persons who prior to that date could lawfully contract matrimony. As to persons who had been divorced after the passage of the amendatory act and before the 1st day of July, the amendatory legislation had the same effect, in that it so changed the existing law as to the right of persons to contract matrimony until the expiration of a specified time after the rendition of a decree of divorce.
No one will contend that it is not within the power of the Legislature to raise the age of competency to contract and be joined in marriage, though such enactment deprived persons of a privilege or right which they enjoyed under previous legislation; and it is equally clear that the fact that a party bad been divorced from a previous marriage may be legally declared to constitute a disqualification to the right to receive license and contract a second marriage within a reasonable time specifically stated in the statute. We think the statutes under consideration became operative and effective after July 1, 1905, infringed no constitutional right of the relators or either of them, and their provisions became obligatory upon the county clerk, and that he properly refused to issue a license to the relators to intermarry.
The judgment of the circuit court must therefore be reversed, and the cause will be remanded.
Reversed and remanded.
Error to Circuit Court, Mahoning County.
Action by Elizabeth M. Chambers against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.
Suit was brought by Elizabeth M. Chambers in the court of common pleas of Mahoning county, Obio, against the Baltimore & Ohio Railroad Company, to recover damages from said company for negligently causing the death of her husband, Harry E. Chambers, who, she alleged, was killed on the 19th day of September, 1902, on the line of defendant's railroad in the state of Pennsylvania. Plaintiff in her petition pleads certain statutes of the state of Pennsylvania, and avers that under and by virtue of such statutes there accrued to her, because of the matters complained of in her petition, the right to maintain an action and recover damages in respect thereof against the defendant company in the state of Pennsylvania. She therefore claims the right to maintain such action in Ohio. At the trial of this cause in the court of common pleas of Mahoning county, at the May term, 1904, it was admitted by the plaintiff that at the time of the grievances complained of in her petition, and for a long time prior thereto, she and her said husband, Harry E. Chambers, were and had been citizens and residents of the state of Pennsylvania. On the trial of said cause the plaintiff, Elizabeth M. Chambers, to maintain the issues on her part, offered in evidence the deposition of J. J. Green. Thereupon, and before said deposition was read, the defendant objected to the introduction of any testimony in the case, assigning as reason therefor "that the averments of the petition do not constitute a cause of action against the defendant, and that, as the plaintiff and her husband were at the time of the occurrence of the grievances complained of citizens and residents of the state of Pennsylvania, and the negligence complained of and the injury inflicted occurred in the state of Pennsylvania, therefore no right of action accrued in this state.” The court overruled the objection, and the testimony offered by the plaintiff was introduced, to which the defendant at the time excepted. Further testimony was offered and received over the objection of the defendant company, and after the arguments of counsel and charge of the court the case was submitted to the jury, who returned a verdict in favor of the plaintiff, Elizabeth M. Chambers. The defendant, the railroad company, within three
days made and fled Its motion for new trial, ' "'Sec. 1. The persons entitled to recover which motion was overruled by the court | damages for any injury causing death, shall and judgment was entered on the verdict. be the husband, widow, children or parents Thereupon the railroad company prosecuted of the deceased, and no other relative, and error to the circuit court of Mahoning coun the sum recovered shall go to them in the ty, which court affirmed the judgment of the proportion they take his or her personal court of common pleas. The company now estate in case of intestacy, and that without brings error in this court.
liability to creditors. Arrel, McVey & Tayler, for plaintiff in
“Sec. 2. That the declaration shall state error. Murray & Koonce and W. S. Ander
who are the parties entitled to such action; son & Son, for defendant in error.
the action shall be brought within one year
after the death and not thereafter.' CREW, J. (after stating the facts). The
"Plaintiff further says that by section 21, record in this case presents the question wheth
art. 3, of the Constitution of the state of er the widow of a decedent, who at the time
Pennsylvania, of 1874, it is provided as folof his death was neither a citizen of nor resi.
lows, to wit: dent in the state of Obio, can maintain an ac
" 'Sec. 21. No act of the General Assembly tion in the courts of this state to recover dam
shall limit the amount to be recovered for ages for his wrongful death occurring in an
injuries resulting in death, or for injuries other state, where the statutes of the state in
to person or property, and in case of death which he was killed gives her the right to
from said injuries, the right of action shall maintain such action in that state. Or, differ
survive and the General Assembly shall preently stated, the question here to be deter
scribe for whose benefit such actions shall mined is, will the courts of this state take and
be prosecuted.'”. entertain jurisdiction of actions to recover
A comparison of the foregoing statutes damages for wrongful death under the statutes
with the wrongful death statutes of our of a sister state, where, as in this case, the
own state, independent of section 6134a decedent and his next of kin were, at the
(Bates' Ann. St.), which is hereinafter spe time of the injury and death for which a re
cially considered, will disclose the fact that, covery is sought, all citizens of, and residents
although they belong to the same general in, such sister state. As appears of record
class of legislation, they are nevertheless in iu this case, the cause of action relied upon
many of their provisions wholly unlike the and pleaded by plaintiff in her second amend.
Ohio statutes. And, while in the present ed petition is not one arising in, or founded
case we entertain the opinion that this disupon any statute of, the state of Ohio; but
similarity in provision is not such as of said cause of action is one that accrued to
itself to defeat jurisdiction, yet the fact her in the state of Pennsylvania, and is
that such dissimilarity exists is at least, we founded upon certain statutes of that state
think, worthy of note. The following are set forth and pleaded by her in said amend
some of the points of difference: Under the ed petition as follows:
Pennsylvania statute the action for causing "That by reason of the premises a right
wrongful death must be brought by the of action accrued to plaintiff upon the death
widow, if there be one. Under the Ohio of her husband, the said Harry E. Chambers,
statute (section 6135, Rev. St. 1892) such in the manner aforesaid, by the means afore
action can only be brought by the personal said, under and by virtue of the act of the
representative of the deceased person. In General Assembly of the state of Pennsyl.
Pennsylvania the action must be brought vania approved April 15, 1851 (P. L. 669) within one year from decedent's death, and and the act of the General Assembly of said there is no limit to the amount of the restate, approved April 26, 1855 (P. L. 309). covery. In Ohio (section 6135, Rev. St. 1892) "Sections 18 and 19 (page 674), of the act
the action must be brought within two years of April 15, 1851, are as follows:
from the death of the decedent, and the “Sec. 18. No action bereafter brought to amount that may be recovered is expressly recover damages for injuries to the person
limited to a sum not exceeding $10,000. by negligence or default, shall abate by rea Plaintiff's action in the present case being son of the death of the plaintiff ; but the in its nature special and, one founded expersonal representatives of the deceased may clusively upon the statutes of the state of be substituted as plaintiff, and prosecute the Pennsylvania, and being for a cause of acsuit to final judgment and satisfaction.
tion arising wholly within that state for "Sec. 19. Whenever death shall be OC wrongfully causing the death of a citizen of casioned by unlawful violence or negligence, that state, even though such cause of action and no suit for damages be brought by the be held to be transitory in its nature, the party injured, during his or her life, the only principle upon which plaintiff may inwidow of any such deceased, or if there voke the jurisdiction of, or may maintain be no widow, the personal representatives, such action in, the courts of this state, in may maintain an action for and recover
the absence of express legislative permission damages for the death thus occasioned.' so to do, is that of comity, and, if her ac
“Sections 1 and 2 of the act of April 26, tion be not sustainable upon that ground, 1855, are as follows:
I she must be held to be without right to bring or maintain the same in the courts of Ohio, y or against the enforcement of a statute of a for it must be conceded that the statutes of | sister state in a given case, the courts must Pennsylvania cannot operate to confer upon obey its mandate. It is well understood that her any such right; they being without au at common law, in pursuance of the maxim thority or binding force beyond the territorial "Actio personalis moritur cum persona," no limits of that state.
right of action existed in favor of the heirs, Judge Story, in his treatise on the Conflict distributees, or personal representative of a of Laws, lays down, as the basis upon which deceased person for damages for his wrongful all reasonings on the law of comity must death. The right of action which the injured necessarily rest, the following maxims: person had abated with his death. This unFirst, "that every nation possesses an exclu satisfactory state of the common law, with sive sovereignty and jurisdiction within its respect to the right to recover for death due own territory"; secondly, “that no state or to negligence or wrongful act, led to the nation can by its laws directly affect or bind passage of statutes giving a right of recovery property out of its own territory, or bind in such cases. The earliest of these statutes persons not resident therein, whether they was the English act of 1846 (St. 9 & 10 Vict. are natural born subjects or others." The c. 93), commonly known as “Lord Campbell's learned judge then adds: “From these two Act," and this enactment has served as the maxims or propositions there follows a model for much of the subsequent legislation third, and that is that whatever force and on this subject, now to be found in most, i obligation the laws of one country have in not in all, of the states of the Union. 8 another depend solely upon the laws and Am. & Eng. Ency. Law, 854, 858. By an act municipal regulation of the latter; that is of the General Assembly of the state of Ohio, to say, upon its own proper jurisprudence passed March 25, 1851 (Swan & C. Rev. St. and polity, and upon its own express or tacit p. 1139), Lord Campbell's act was adopted consent." Story on Conflict of Laws, $ 23. into, and became a part of the legislation of And Minor, in his very recent work (Conflict this state, and the right was thereby given for of Laws, p. 10, $ 6), in discussing the ex the first time in Ohio to recover for a death ceptions to the enforcement of a foreign law caused by wrongful act, neglect, or default. in the state of the forum, says: "Few gen. This statute, in the form in which it was eral principles of private international law originally enacted, was several times before are so well settled as the rule that no this court for review, and it was uniformly foreign law (even though, under ordinary held that the act gave no right of recovery in circumstances, it be the "proper law") will those cases where the wrongful act which be enforced in a sovereign state, if to enforce caused the death occurred outside of the state it will be to contravene the express statute of Ohio. This court so held in Woodard s. law or an established policy of the forum, Railroad Co., 10 Ohio St. 121; Hover, Adm'r, or is injurious to its interests." The doc v. Pennsylvania Co., 25 Ohio St. 667; Brooks, trine of the foregoing authorities and many Adm'r, v. Railway Co., 53 Ohio St. 655, 44 more might be cited to the same effect N. E. 1131, and Railroad Co. v. Fox, Adm'r, 64 leads to the conclusion that an action may Ohio St. 133, 59 N. E. 888; In Hover, Adm'r, only be brought and maintained in a juris V. Pennsylvania Co., supra, the court says: diction other than that in which the cause "The act of March 25, 1851 (Swan & C. Rev. St. of action arose, when the cause of action p. 1139), allowing an action by the represenis itself transitory, and its enforcement not tatives of a party whose death was caused by inconsistent with, or obnoxious to, the laws the wrongful act of another, does not extend or public policy of the jurisdiction in which to cases where the wrongful act which caused the suit is brought. In other words, the law the death was committed outside the state of of comity, so called, is not a law of absolute Ohio." In Railroad Co. v. Fox, Adm'r, supra, obligation, and its principles can never prop. Spear, J., at page 141 of 64 Ohio St., at erly be invoked in aid of the enforcement page 889 of 59 N. E., referring to section of a foreign statute, where the effect of the 6134, Rev. St. 1892, which section differs in no enforcement of such foreign statute would essential particular from the original act of be, or is, to set at naught the positive law March 23, 1851, says: “It is established law or public policy of the particular forum to in Ohio, however, that section 6134 does not which resort is bad.
extend to wrongful acts causing death outside Logically, then, the inquiry suggests itself of this state, and that prior to the passage of in the present case, is it in harmony and ac- section 6134a, Bates' Ann. St., no action by an cord with the laws and public policy of the administrator for such cause could be mainstate of Ohio to permit the enforcement in the tained in our courts.” This, then, was the courts of this state of a cause of action status of the law of Ohio up to and until the arising under the wrongful death statutes of enactment of original section 6134a, which the state of Pennsylvania in favor of the next was passed May 21, 1894 (91 Ohio Laws, p. of kin of one who at the time of his death was 408), and is as follows: “Whenever death neither a citizen of nor resident in the state has been or may be caused by a wrongful act, of Ohio. Primarily the Legislature must be neglect or default in another state, territory held to be the judge of questions of public or foreign country, for which a right to policy, and, if it has spoken plainly, either for maintain an action and recover damages in respect thereof is given by a statute of such, essential particulars the same. It seems to other state, territory or foreign country, such us clear that the laws of Indiana, while they right of action may be enforced in this state, permit the bringing of actions in the courts of in all cases where such other state, territory that state to recover for death occurring in or foreign country allows the enforcements in another state, require the determination of its courts of the statute of this state of a like the rights of the parties by the provisions of character; but in no case shall the damages their own laws, but do not enforce the laws of exceed the amount authorized to be recovered the state where the injury was committed." for a wrongful neglect or default in this state, On May 6, 1902 (95 Ohio Laws, p. 401), section causing death. Every action brought under 6134a, above quoted, was amended, and the this act where the death has already occur original section was repealed. This amended red shall be commenced within one year from section, which was in force at the time of the the passage of this act; and in all other trial of this case in the court of common cases, within the time prescribed for the com- pleas, provides as follows: "Whenever the mencement of such action by the statute of death of a citizen of this state has been or such other state, territory or foreign country.” may be caused by a wrongful act, neglect or
This legislation is supplementary in charac default in another state, territory or foreign ter, and presupposes and is in effect a legisla country, for which a right to maintain an tive declaration that without it no action action and recover damages in respect thereof could be maintained in Ohio to recover dam- is given by a statute of such other state, terages for wrongful death occurring in another ritory, or foreign country, such right of action state, territory, or foreign country; for, if may be enforced in this state within the time such right already existed under favor of the prescribed for the commencement of such provisions of section 6134, Rev. St., then sec | action by the statute of such other state, tertion 6134a, Bates' Ann. St., was a vain and ritory or foreign country.” useless enactment. We think, therefore, it It is important to note that this amended must be conceded that this statute created, section changes the former law in two esand was intended to create and give, a new sential particulars: (1) It dispenses with the right of action which theretofore did not exist. condition that the state in which the wrong. But it will be observed that the right or ful death occurs shall enforce in its courts authority thereby given to enforce such new the statute of this state of like character. right of action in this state for a death oc (2) It in terms limits the right therein given, curring in another state is a qualified and con to maintain an action in this state for wrongditional right, and is, by express provision, ful death occurring in another state, to acsubject to the limitation that the courts of the tions for causing the death of citizens of state in which the death occurred shall en Ohio. Whereas original section 6134a gave force the statute of this state of like charac such right without limitation or restriction ter. In Railroad Co. v. Fox, Adm'r, supra, as to citizenship. If, as contended by counthis court, as we have seen, recognized, and sel for defendant in error in their brief heredeclared the fact to be, that section 6134a in, it was not the purpose or intent of the created and gave a new right of action, and, Legislature by this amendment to limit and furthermore, the court in that case decided restrict the right to recover in the courts of that the right of action so given could only be this state, for wrongful death occurring in anenforced in this state under the limitations other state, to those cases where the person and upon the condition prescribed in the killed was a citizen of Ohio, and if, as they statute. In the opinion in that case it is said contend, "the prime object of this statute at pages 144 and 145 of 64 Ohio St., at page (amended section 6134a] was to permit the ac890 of 59 N. E.: “Nor is there ground for tions embraced within its terms to be brought saying that our statute, section 6134a, is in the courts of the state of Ohio, whether satisfied by the mere entertaining by the or not our statute would be enforced in the courts of another state of a cause of action foreign state and to give a statutory sanction for death occurring in our state. Such is not to such actions, instead of allowing the same the language of the law. It is not the en- | to remain subject to the law of comity," then tertaining of the suit that is stipulated for, indeed was the Legislature most unfortunate but enforcement of our statute of like charac in the method employed and in the language ter. This means that it is the law of Ohio | used to accomplish this result. If such only which the sister state will enforce, not neces | had been the legislative purpose, that pursarily the law of that state, for where there is | pose could have been much more easily and an essential difference, as has already been effectively accomplished by merely omitting pointed out, it cannot be said by enforcing from original section 6134a the clause "in all their own law the court of the other state is cases where such other state, territory or enforcing our statute. Our statute rests foreign country allows the enforcement in its upon the ground of reciprocity which is based courts of the statute of this state of a like upon the idea of comity, and the very essence character," and we think it but fair to preof reciprocity implies that each state, as to sume that had such been the sole object the subject-matter, shall have and enforce sought to be accomplished by the Legislature identical laws, not simply provisions which that this amendment would have taken some may be in many respects similar, but in all such form. Having regard, then, to the scope