EICHELBURGER

v.

PITTSBURG, CINN. AND ST. L. R. W. Co.

(Advance Case, Ohio. 1882.)

A railroad company, the lines of which extended through Ohio and West Virginia owed one month's wages to a brakesman resident in Ohio. By the laws of Ohio one month's wages are exempt from attachment and execution. A creditor of the brakesman instituted attachment proceedings against him in West Virginia, attaching the wages due by the company. The brakesman had notice of the proceedings, but did not appear, and the company, under order of the West Virginia court, paid into court the amount in its hands as satisfaction of the debt. An assignor of the brakesman subsequently brought suit against the company, in Ohio, for the amount of the wages due. Held, that the exemption law of Ohio did not extend in this case to West Virginia; that there was no presumption that a similar law existed in such state; that even if the brakesman could have set up such exemption in the West Virginia court, it did not appear that the company defendant could have done sc; that the company did not appear to have neglected any duty incumbent upon it; that its payment of the amount of the wages due operated as a discharge, and that therefore plaintiff was not entitled to recover.

The statute law of another state is a fact which must be proved like any other fact. In the absence of anything to the contrary, the presumption is that the common law obtains, and not legislation, similar to that of the state wherein the question arises.

WALKER, J.-The appellant's assignor, a resident of this state, was in the employment of the appellee, as brakesman, on its line of road. At a time when the appellee was indebted to such employee for one month's wages for services, a suit was commenced in West Virginia by the assignee of a creditor of the appellant's assignor in attachment, and the appellee was served with a writ of garnishment to answer as to its indebtedness to such employee. Service was had on the appellee in that jurisdiction, its road extending into that state. The employee had notice of the pendency of such proceedings. Under our statute one month's wages of such employee are exempt from legal process. The employee did not appear to the action. The appellee was ordered by the court in West Va. to pay said money into court in satisfaction of the claim of the attaching creditor; and, in obedience to such order the appellee paid the sum into court, and now pleads such adjudication in defence to an action by the assignee of the claim (subsequently assigned) of its employee for the wages aforesaid. The court in special term held the defence good that the appellee could not be held to respond a second time for such debt. Was the ruling right is the only question presented here. Under the facts in this case, I think the judgment

onght to be sustained. The authorities do not go to the extent that a garnishee is liable a second time for such indebtedness, if the employee had notice and an opportunity to defend. The cases relied on in this appeal are Pierce v. Chicago and N. W. Ry. Co., in 36 Wis. 285, and the Chicago and Alton Ry. Co. v. Ragland, 84 Ill. 375. The latter case can have no application here, as the attachment proceedings in that case were begun and concluded within the state. The case in 36 Wis. would seem to support the view of the appellant, holding that in such case the garnishee should have claimed the exemption for the original debtor, or at least have give him notice and requested him to defend, and for that purpose the presumption was that other states had a like law on the subject. The reason for the rule that notice should be given to the employee, and an opportunity to defend seems to be given in Bushnell v. Allen, 48 Wis. 467.

Where the court says of the above language used in 36 Wis., that "these observations were made with reference to the former law, which did not require the garnishee summons to be served on the defendant in the main action." In such case it will be seen that the defendant in the attachment might not know that the debt due him was attempted to be appropriated by a creditor, and might not be able to defend except by the use of the name of the garnishee.

Under such circumstances it might well be considered the duty of the garnishee to notify the attachment defendant of the gar nishee proceedings, and thereby give him an opportunity to defend, and for failing to do so, and for failing to make an effort to prevent an unlawful appropriation of the debt due from such garnishee by an attaching creditor, such garnishee might be compelled to pay the debt a second time, without its being reasonably claimed to be a great hardship. But in this case the attachment defendant had notice of the pendency of the suit given him by the appellee as soon as it had notice, and had the opportunity to defend, and failing to do so the order was made for the payment by the garnishee.

Let it be considered the duty of the garnishee to use all legal means to prevent the appropriation of its debt in payment of the plaintiff's claim in attachment, and to make every defence there to which the attachment defendant could have done, and even claimed the exemption for him on his failing to do so, how does the case

stand?

Before the garnishee should be charged a second time with the debt ought it not be made to appear that such garnishee might have made a successful defence to the action against it, and in this case that the exemption could have been made available to defeat the order made. I think such requirements should be made before a second application of the same debt could be had.

If the Wisconsin case is deemed an authority against the view,

it may be said that the case has had the support of no authority, and it cites none that sustains its position; and if the conclusion reached by the court can only be supported by the reason given, it must fail as an authority in this state. It is decided on the theory and presumption that a sister state has the same law in relation to exemption as its own, announcing it as a rule that in the absence of any evidence to the contrary that the court will presume that a sister state has a statute the same in its terms, and giving the right and remedies that are conferred by its own legislation. No such rule prevails in this state. Under our decision we are not at liberty to presume that West Va. has a statute providing that a non-resident of that state may claim as exempt from legal process in its jurisdiction, a month's wages in all cases where such debt is due from a corporation to one of its employees. The rule here is that the statute law of a sister state is a fact that must be proved like any other fact. And that in the absence of anything to the contrary, that the common law prevails in a sister state, and not that kindred legislation exists. The last reported expression of our Supreme Court on that question is in the case of Robards v. Marley, 80 Ind. 185. See also Buckles v. Ellers, 72 Ind. 22, and cases cited in Robards v. Marley.

The Wisconsin case, as I have said, has been followed nowhere, so far as I have been able to ascertain, but has been expressly disapproved by some of the courts in the different states, and unfavorably criticised by text-writers, and its authority denied. Moore v. Chicago Ry. Co., 43 Iowa, 385. Freeman on Executions, sec. 209 and notes; Thompson on Homesteads and Exemptions, sec. 866, 2 Cent. Law. J. 374, 378, 447.

"The operation of exemption laws is restricted to the state in which they are enacted. They do not constitute a part of the contract between the debtor and creditor to the extent that the former may invoke them wherever he may choose to go." Freeman on Ex., sec. 209, and authorities there cited.

My conclusion is that the law of this state exempting the wages of the appellant's assignor from legal process has no extra territorial force, that as there is no evidence of the existence of such a law in West Va. there is no presumption that a like law exists there; that even if the appellee could claim the exemption for the employee, it does not in any way appear that it would have availed as a defence; that the law does not require greater effort on the part of the appellee to save the rights of its employee than it requires of him to save his own. And as it is not shown that any injury has been done by any neglect of a duty which the law enjoins on the appellee, the appropriation of the debt in West Va., by order of a court of competent jurisdiction, is a discharge of the claim of his assignee in this case, and must result in an affirmance of the judgment discharging the appellee from further liability. Judgment affirmed.

WILSON

v.

SOUTHERN PACIFIC R. R. Co.

(Advance Case, California. 1882.)

Where there is evidence to sustain a verdict in the court below, said verdict is conclusive and cannot be reviewed on appeal.

In an action against a warehouseman proof of demand and refusal to deliver property stored with him constitutes prima facie evidence of negligence. If it appears, however, that the property, when demanded, was consumed by fire, the burden of proof is on the bailor to show that the fire resulted from some negligence or want of care on the part of the warehouseman.

Direct and positive evidence of negligence as a fact is not in such case required, any circumstances which tend to prove it or from which it may be reasonably inferred are sufficient.

In an action for negligence it is error for the court to award a nonsuit unless there is no evidence at all of negligence or a mere scintilla, wholly insufficient for the consideration of the jury, or unless the facts are agreed upon or admitted, and in the judgment of the court are insufficient to constitute a

cause of action.

In an action against a railroad company to recover damages for the loss of certain bales of wool destroyed by fire while in the defendant's warehouse, plaintiff proved that in the evening the warehouse keeper took a lamp into a small wooden room adjoining the office, made his toilet, and afterwards took the lamp with him into the warehouse, blew it out and locked the place up. Soon after the fire in question took place originating near the spot where the lamp Held, that there was evidence to go to the jury that the fire had been occasioned by the careless or negligent use or extinguishment of the lamp.

had been left.

It was not error in the above case to refuse to strike out that clause of the complaint which alleged that defendant owned and operated a railroad. There was nothing in this to irritate or excite the prejudices of the jury against the defendant.

MCKEE, J.-The appeal in this case comes from a judgment and order denying the motion of appellant for a new trial in an action to recover damages for the destruction of certain property of the respondent, by a fire caused, as alleged, by the negligence of the appellant and its employees in conducting and managing its warehouse in which the property had been stored.

The case was tried by the court with a jury, and a verdict was rendered against the appellant. If there was any evidence to warrant the verdict we cannot review it on appeal. It is conclusive upon us, not only on the question of negligence, but upon all the allegations in the complaint material to recovery in the action. (Algier v. Steamer Maria, 14 Cal. 172; Brown v. Brown, 41 Id. 88; Trenor v. C. P. R. R. Co., 50 Id. 232.) It is, however, contended

9 A. & E. R. Cas.-11

that there was no evidence to sustain the verdict, and that the court below erred in denying a motion for a nonsuit.

It was proved on the trial that the respondent had stored in the appellant's warehouse sixty-four bales of wool of a certain value per pound, which on demand and tender of the storage due upon it, the appellant refused to deliver to the respondent, assigning as a reason, that the warehouse and all it contained, except about three bales, which were returned to him, had been consumed by fire.

A prima facie case of negligence is made out against a warehouseman, who refuses to deliver property stored with him, upon proof of demand and refusal. Upon such proof alone the burden is on him to account for the property; otherwise he shall be deemed to have converted it to his own use. But it appears that the property, when demanded, was consumed by fire, the burden of proof is then on the bailor to show that the fire was the result of the negligence of the warehouseman. (Harris v. Packwood, 3 Taumt. 264; Beardslee v. Richardson, 11 Wend. 26; Brown v. Johnson, 29 Tex. 43; Lamb v. Camden and Amboy R. R. Co., 46 N. Y. 271; Jackson v. Sac. Val. R. R. Co., 23 Cal. 269.)

The negligence of the appellant, as the proximate cause of the loss of the property by fire, thus became the essential fact to recovery; and the burden of proof was upon the plaintiff in the action. It was incumbent on him to prove that the defendant had by some act of omission, violated some duty, by reason of which the fire originated; or that some negligence or want of care, such as a prudent man would take under similar circumstances of his own property, caused or permitted, or contributed to cause or permit the fire by which the property was destroyed.

Direct and positive evidence of negligence as a fact is not required. Any circumstances which tend to prove it, or from which it may be reasonably inferred are sufficient. And when such evidence has been given on the trial of an action, it is not for the court to usurp the disposition of the fact by ordering a nonsuit. Such an order should not be made unless there is no evidence at all, or a mere scintilla of evidence wholly insufficient for the consideration of the jury, or unless the facts are agreed upon, or admitted, and in the judgment of the court, are insufficient to constitute a cause of action. Upon facts admitted, or proved and found, it is the duty of the court to say what the law applicable to them is. But where negligence, as the essential fact in the case, is disputed, and the evidence of it is conflicting, or consists of circumstances from which inferences may be drawn for or against it, it is the province of the jury to determine, under instructions by the court, whether the evidence establishes it as the proximate cause of the injury complained of.

Applying these principles to the record before us, we find there was no error in sending the case to the jury. For the evidence upon which the plaintiff rested went to show that the building, up to the