
    ACTIONS UNDER. THE FEDERAL EMPLOYERS’ LIABILITY LAW.
    Common Pleas Court of Cuyahoga County.
    Mike Huszty v. Erie Railroad Company.
    Decided, October 10, 1914.
    
      Jurisdiction — Of State Courts Where the Action is Under the Federal' Employers’ Liability Act — Verdict of Jury Must be Unanimous.
    
    Our state courts have jurisdiction to entertain actions brought under the federal employers’ liability act, but in such actions the ver- - diet of the jury must be unanimous.
   Stevens, J.

Opinion on demurrer on the ground of want, of jurisdiction.

The action is based upon the federal employer’s liability act. It has been decided, beyond question, that where the federal act applies, an action can be maintained only as based upon it,, and that all state statutes on the same subject are excluded by reason of the supremacy of the federal act.

The federal Constitution provides that, in suits at common law, the right of trial by jury shall he preserved; and it is held that Congress has no power to enact legislation which impairs that right. Trial by jury has been held to mean a jury of twelve men, and a verdict of a jury is the unanimous verdict of twelve men. Tt is claimed, then, that the courts of the state of Ohio have no jurisdiction to entertain an action brought under the ' provisions of the federal employer’s liability act, because, while the federal laws and Constitution provide for a jury trial as known to the common law, the Constitution and laws of the state of Ohio require, that in all civil actions the jury shall render a verdict upon the concurrence of thr.-efourths or more of their number, and that when three-fourths or more of the jury have arrived at a conclusion, the verdict is complete. It is claimed that this court is in a dilemma, because the cause of action in the case in question exists solely by an act of Congress, is within the guarantee of the seventh amendment to the United States Constitution, and yet the court is bound by the Constitution and laws. of the state of Ohio, which provide for a verdict of three-fourths of the jury. Counsel for the defendant urge that the court could not hear this case without violating either the law and Constitution of the United States, by permitting a three-fourths jury verdict, or violating the law and Constitution of the state of Ohio by requiring a unanimous verdict.

I think the escape from this dilemma is clear upon a consideration of Article I, Section 5 of the Constitution of Ohio, in connection with Sections 11455, 6 and 7 of the General Code. The section of the Constitution referred to provides, in its first clause, that the right of trial by jury shall be inviolate. That provision means, beyond question, trial by a jury of twelve men, as known to the common law, whose verdict must'be unanimous. But the Constitution further provides in that section as follows: “except that in civil eases laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.”

It is clear, therefore, from the constitutional provision, that in criminal matters it is entirely beyond the power of the Legislature to authorize trial by jury in any way other than that known to the common law. As to criminal matters, the right of trial by ¡jury is inviolate. This would remain true of civil actions if the Legislature had not exercised the power granted it under the Constitution and provided that in all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. .Unquestionably, the Constitution of Ohio did not attempt to authorize the Legislature to provide for a three-fourths verdict of the jury in any matters concerning which it did not have power to legislate. It is equally certain that the Legislature of Ohio has no power to legislate with reference to those matters in which the Constitution and .laws of the United States are paramount, and they have not attempted to do so.

‘‘When Congress has exerted its paramount legislative authority over a particular subject of interstate commerce, state laws upon the same subject are superseded.” Railway Company v. Harris, 234 U. S., 412, syllabus 3.

The provision of Section 11455 of the General Code means precisely the same as though the words following in parenthesis were contained in it, and might he read as follows:

“In all civil actions (concerning which the Legislature has any power to legislate) a jury shall render a verdict upon the concurrence of three-fourths or more of their number. (In all other actions the right of trial by jury remains inviolate.)”

These would be, of course, in a sense absurd provisions to insert, but they implicitly exist in that section of the General Code.

I conclude, therefore, that actions brought under the provisions of the federal employer’s liability act may be entertained by the, courts of Ohio, but that the unanimous verdict of the jury must be required. ' •  