
    Lutton v. Mount Ida School, Inc.
    
      (Decided March 20, 1933.)
    
      Mr. W. B. Lutton and Mr. E. G. Theller, for plaintiff in error.
    
      Messrs. Gannon, Spieth, Taggart, Spring & Annat, for defendant in error.
   Levine, J.

Error proceedings are prosecuted to this court from the decision of the common pleas court, which rendered judgment against W. E. Lutton, plaintiff in error.

Defendant in error, Mount Ida School, a corporation organized under the laws of the state .of Massachusetts, filed suit against plaintiff in error for an alleged unpaid balance claimed to be due from him by reason of a contract for the admission of plaintiff in error’s daughter to the Mount Ida School.

Plaintiff in error filed in the common pleas court his answer and cross-petition. In the answer there is, in substance, a denial of the allegation that there is a balance due, and it is alleged that he was induced to sign a contract for the admission of his daughter to the school by the false representation of defendant in error’s agent. The cross-petition seeks damages in the sum of $550 from the defendant in error. The reply of the defendant in error, in substance, denies the allegations of plaintiff in error’s answer and cross-petition.

The case was tried to a jury, a verdict returned in favor of defendant in error, and judgment had thereon. Plaintiff in error filed a petition in error to this court wherein various assignments of error are alleged:

“4. The court erred in admitting evidence over the objections' of the plaintiff in error and to which he excepted at the time.”

An examination of the bill of exceptions discloses that a Mr. Frederick MacGill, principal of Mount Ida School, was permitted to testify, against objection, as to the law of Massachusetts found in a case claimed to be similar to the case at bar:

“Q. Now, Mr. MacGill, you are admitted, and are a practicing attorney in the state of Massachusetts? A. Yes.

“Q. You practiced and continue to practice law? A. I do not practice at all now; I used to do a great deal of probate but I do not practice now, I am in school.

“Q. Did you make examination of a case of this kind of a breach of contract where a course of instruction of a school was concerned? A. Yes.

“Q. Tell me what you find in the Massachusetts decisions?”

Plaintiff in error objected to the question. The jury was excused and argument was had by counsel. Thereupon the trial court overruled the objection, to which ruling exception was taken. The question was repeated:

“Q. Can you tell me what you find in the Massachusetts decisions? A. I find that in a case where schools have made contract for the whole year, that if the student drops out within a year or discontinues his or her course that, whoever signed the contract is bound to pay whatever remains due for the term contracted. ’ ’

Motion by counsel for defendant to strike the answer from the record.

Motion overruled; to which ruling of the court counsel for defendant then and there excepted,

“Q. Can you cite me decisions in support of your statement regarding the Massachusetts law? A. International Textbook Company v. Martin.

“Q. What report is that? A. Two hundred twenty-one, Massachusetts, page one.

“Q. What court of Massachusetts? A. Supreme Judicial Court.

“Q. Is that the court of last resort in Massachusetts? A. Yes.

“Mr. Lutton: I object and except to this whole line of questions and answers.”

“A. (Witness reading.) A contract in writing between the proprietor of a correspondence school and a subscriber to a scholarship therein contained provisions that the subscriber should pay for the scholarship a certain sum in sixteen installments of a certain amount each, ‘the first installment to be paid at the time of the signing of the subscription’ and the others ‘within each and every period of four weeks hereafter until said price is paid in full,’ and also that ‘the price’ to be paid for the scholarship included all charges for instruction in a certain subject until the subscriber was ‘qualified to receive a diploma or certificate of proficiency, provided’ he completed ‘said course within five years from the date ’ of the contract and that the subscription should ‘not be subject to cancellation’ and that the proprietor of the school should ‘not be required to refund any part of the money paid for said scholarship.’ Within five months from the date of the contract, the subscriber stopped studying and refused to make any further payments, and the proprietor of the school, after the date when the last installment was to have been paid, brought an action to recover the amount of all unpaid installments. Reid, that the agreement of the subscriber to pay the stipulated price for a scholarship was an independent promise and that therefore the proprietor of the school was entitled to recover the amount of all unpaid installments and was not limited to a recovery merely of the damages sustained by reason of the subscriber’s breach of the contract.”

Counsel for the defendant in error thereupon offered in evidence volume 221, Massachusetts Reports, page 1, as Plaintiff’s Exhibit 6. Plaintiff in error objected. After discussion was had, counsel for plaintiff withdrew his offer of said volume. Counsel for plaintiff in error then asked the court to instruct the jury to disregard what was read by the witness as to the law of Massachusetts, which motion was overruled, and an exception duly taken.

We deem the consideration of the question as to the admissibility of the evidence offered in behalf of defendant in error as to what is the law of Massachusetts, and also the manner in which it was introduced, as the important question before us.

An examination of the pleadings discloses that nowhere, either in the petition, in the answer and cross-petition, or in the reply, was there any allegation made as to the law of Massachusetts applicable to this case. There is no dearth of law on the subject. In Erie Railroad Co. v. Welsh, 89 Ohio St., 81, 105 N. E., 189, the court held:

“1. In the courts of this state the presumption obtains that the law of the forum controls the rights of the parties to the litigation.

“2. Where it is claimed by either party that the law of another state or of the United States applies to the exclusion of the law of the forum, the facts upon which such claim is based must be pleaded.

“3. Our state courts will take judicial notice of all federal laws. Therefore, it is not necessary that these laws should be pleaded, but only the facts that bring the ease within their operation. If it be claimed that the law of another state controls, then the law of that state must be pleaded.

“4. The determination of the existence of such facts when denied by answer or reply is a question for the jury, and when no such issue is joined in the pleadings evidence will not be received either to prove or disprove the same, but the presumption will obtain that the law of the forum applies.”

In Williams v. Finlay, 40 Ohio St., 342, the court held:

“The laws of another state, where they come in question in the courts of this state, must be pleaded and proven as matters of fact.”

In the case of Louisville & Nashville Rd. Co. v. Greene, Admx., 113 Ohio St., 546, 550, 149 N. E., 876, we quote from the opinion:

“It has been held by repeated decisions of this court that the Ohio courts may not take judicial notice of the statutes of a foreign or sister state, but that the latter must be pleaded and proven if recovery is based thereon.”

In Mendelson v. Mendelson, 123 Ohio St., 11, 173 N. E., 615, in syllabus 1 the court held:

“In the absence of pleading and proof to the contrary the presumption obtains that the law of the place where a contract was executed is the same as the law where enforcement thereof is sought.”

In Yeazel v. Louisville & Nashville Ry. Co., 13 Ohio App., 499, it was held:

“The law of a foreign jurisdiction is a matter of fact and should be pleaded and proved.”

As a general rule, the laws of another country, as well as of another state, are unknown to the courts of the state in which the action is brought, and, where such statutes are material to the controversy, and are relied on as a basis of a right of action, or as a defense, they must be set forth by the pleader that the court may judge of their effect. Where such foreign laws are not pleaded or proven, the presumption obtains that they are the same as the laws of the forum. And it is also a rule that the existence and terms of the statutes of other states cannot be proven unless pleaded. 21 Ruling Case Law, 438, 439.

In view of the settled law above cited, and considering the state of the pleadings in the case at bar, which show conclusively that no allegation whatsoever was made of the law of the state of Massachusetts, the presumption obtains that, the law of Ohio controls the rights of the parties to this litigation. No issue was joined in the pleadings upon that question and it follows that evidence cannot be received either to prove or disprove the same, as the presumption obtains that the law of the forum applies.

Had the defendant in error pleaded the law of the state of Massachusetts as a basis of recovery in this case, an opportunity would have been afforded to plaintiff in error to deny either the existence or applicability of such law. The admission of such evidence against repeated objections and exceptions, in view of the state of the pleadings, constitutes, in our opinion, reversible error. It will be seen from an examination of the charge of the court that the question of the existence of the law of Massachusetts relating to the subject-matter in controversy was not submitted to the jury as a question of fact. Had issue been joined upon that point in the pleadings, the court would have been duty bound to submit this question of the existence of the law of Massachusetts as a question of fact to be decided by the jury. Had issue been joined upon this question of fact, the failure of the trial court to submit it to the jury as a question of fact would in itself have constituted reversible error. The trial court was undoubtedly correct in not submitting the question of the existence of the. law of Massachusetts to the jury as a question of fact, because no issue had arisen upon that point one way or the other in the pleadings, as neither party made any reference to the law of Massachusetts. It becomes quite apparent, since no issue arises on this question, upon a perusal of the pleadings, that the court committed error in permitting the introduction of evidence as to the law of Massachusetts.

We hold that the court was in error in admitting such evidence.

Was the erroneous admission of this evidence prejudicial? It must be observed that the testimony of the witness, MacGrill, consisted in the main of reading of the decision of the Supreme Court of Massachusetts in the case entitled International Textbook Company v. Martin. The recital of facts given in the decision of the court shows that it dealt with a dispute arising between the proprietor of a correspondence school and a subscriber, under a contract in writing entered into between the parties. The concluding statement of the Massachusetts case reads:

“H'eld, that the agreement of the subscriber to pay the stipulated price for a scholarship was an independent promise and that therefore the proprietor of the school was entitled to recover the amount of all unpaid installments and was not limited to a recovery merely of the damages sustained by reason of the subscriber’s breach of the contract.”

To an untutored jury, composed of men and women who are not lawyers, the decision of the Supreme Court of the state of Massachusetts, in a dispute similar to the dispute in the case at bar, which arose between the proprietor of a correspondence school and a subscriber, under a contract in writing between the parties, assumes rather august importance. The probability is very strong that the decision of the Supreme Court of Massachusetts, read to them and admitted in evidence by the court, had, under the circumstances, a very material influence upon their verdict.

We have thus far dealt with the question of the admissibility of foreign law when the same was not alleged in the pleadings. Assuming for the sake of argument that the evidence was admissible, we gravely question the qualifications of Mr. MacGill, who, while admitted to the bar, had not been engaged in the practice of the law for quite a long time preceding the appearance on the witness stand. A fair interpretation of his testimony leads to but one conclusion, that he depends entirely upon the opinion of the Supreme Court of Massachusetts in the case of International Textbook Company v. Martin. He read from 221 Massachusetts, page 1, and recited the language used by the court in its decision. He had no basis for his opinion other than the opinion of the Supreme Court of Massachusetts which he read to the jury.

Under Section 11499, General Code, it would have been proper to offer in evidence the volume of the law in which the opinion is contained. In this case the offer to introduce the volume itself was withdrawn, but the court nevertheless permitted the statement read from it to remain in evidence. Section 11499, General Code, provides that the common or unwritten law of a foreign state “may be proved as facts by parol evidence.” Boohs of reported cases adjudicated in its courts also may be admitted as presumptive evidence of such law. Had the trial court permitted the introduction of the volume containing the Massachusetts decision, and had the same not been withdrawn from the evidence, such action would have been quite proper under the provisions of Section 11499, General Code.

It seems to us very doubtful, in view of the fact that the volume containing the Massachusetts decision had been withdrawn from the evidence, whether the court should have permitted the matter read from said volume to remain in evidence. While questioning the ruling of the court which permitted the matter read from the Massachusetts volume to remain in evidence, when the volume itself was withdrawn, we are, however, not basing our judgment of reversal upon that point, but, instead, we place reliance upon the proposition that evidence of foreign law is inadmissible when the pleadings do not contain an allegation bearing upon that point.

Judgment reversed and cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Lieghley, P. J., and McGill, J., concur.  