
    Alexander v. Pennsylvania Company.
    
      Laws of another state — Bow proven — Existence of question of fact for the jury — Duty of the court to construe — Master and servant — Contract of employment governed by laws of state where made — Negligence of fellow servant — No recovery for can be had in this state, when barred by laios of another.
    
    1. Where, on the trial of an issue respecting the law of another state, the decisions of the courts of that state are given in evidence to the jury, it is the province of the jury to determine whether or not such decisions have been made, but it is the duty of the court to construe, and deduce from them, the rules of law which they establish.
    .2. Where, in an action prosecuted in this stat» by'» servant against his master to recover for personal injury resulting to him from the negligence of another servant of the same master, it appears that the accident, causing the injury, occurred in the state of Pennsylvania, that the contract of employment was made in that state, and that all the stipulated services were to be performed therein, no recovery can be had, if by the laws of Pennsylvania*no right of action arose from the transaction ; though the laws of Ohio would give full relief had the transaction occurred within this state.
    (Decided December 8, 1891.)
    Ebbob to the Circuit Court of Mahoning county.
    This action was brought in the Court of Common Pleas of Mahoning county by the plaintiff in error, to recover against the defendant in error damages for injuries sustained by him while in its employment. He recovered a judgment in that court, which was reversed by the Circuit Court of Mahoning county, in proceedings instituted for that purpose by the defendant in error, whereupon this proceeding was brought to obtain a reversal of the judgment of the circuit court, and to affirm that of the court of common pleas.
    
      Jones, Anderson Terrell, for plaintiff in error.
    I. We first desire to inquire what, if any, place the holdings in Pennsylvania had in this case? We submit that, under the pleadings no issue was made which authorized an inquiry as to the law of that state. If a defense of this kind can be interposed, it must certainly be pleaded. Railway Co. v. Lewis, 33 Ohio St. 196. And in order to do so, it would seem to be the proper way to allege what the law of Pennsylvania is, and then allege the facts which brought the case within that law. Curtis v. Masten, 11 Paige, 17; Smith’s Com., sec. 831, and authorities there cited; Pearsel v. Dwight, 2 Mass. 87; Legg v. Legg, 8 Mass. 99; Ruggles v. Keeler, 3 Johns. 263; Holmes v. Broughton, 10 Wend. 77.
    II. Referring to the record, it will be seep that upon the request of defendant’s counsel, the court withdrew from the jury any determination or any right to find what was the law of Pennsylvania. And although plaintiff’s counsel insisted that if the question as to what was the law of Pennsylvania was in fhn .case, it was a question of fact for the determination of the jury, with the other facts; this the defendant’s counsel, equally stubborn, insisted should not be done, and further, that the court only should determine the law of Pennsylvania. We claim that the effect of this was to withdraw from the determination of the case all the evidence under the second defense.
    Of course this assumption is based upon the proposition that the law of a foreign state is a question of fact for the consideration of the jury, and not a question of law to be determined by the court, and therefore upon that question we ask the attention of the court. This question, we think well settled by the opinion of this court. - Ingraham v. Hart, 11 Ohio 225; Bank v. Baker, 15 Ohio St. 83; Williams v. Finlay, 40 Ohio St. 343.
    III. It is not claimed that Pennsylvania had any statute modifying or changing the common law governing the case at bar. The most that can be said is that certain decisions had(been made by the supreme court declaratory of the common law, and that said decisions are in conflict with the common law, as declared by this court.
    If we could assume that such a thing existed as the common law of Pennsylvania, then possibly they might be said to be .declaratory of such common law, in some very limited sense. But we do not understand that such a claim can be seriously made. 1 Kent, 534.
    If, then, the common law is the same in the whole country and alike in each state, it would follow that the same rule of law prevails in Pennsylvania as in Ohio.
    It may be, and often is the case, that courts in different states hold the opposite doctrine upon the same question. They do so in the same state, often.
    We do not understand that “books of reports,” which are made evidence under our statute, are limited to reports of cases decided in the supreme court. Revised Statutes, 5244.
    If, then, each side had presented an opinion from an inferior court, running in opposite directions, we would be bound to admit that both were the law, if the theory of our friends on the other side is correct. But are they correct? We think not. We agree that the decisions in Pennsylvania are some evidence of the common law of the United States ; but are they any higher evidence than the decisions of - Ohio ? Are they superior to the opinions of any other state, except as they are fortified by better reasons ? This question was early before the Supreme Court of the United States in Swift v. Tyson, 16 Peters 18.
    The question in the case at bar was squarely before the Supreme Court of the United States in the case of Hough v. Railway Co., 100 U. S. 213, 226.
    We ask the special attention of the court to the very fully considered case of Franklin v. Twogood, 25 Iowa 522.
    Decisions by courts are but evidence of the general law, and are entitled to whatever respect and consideration that reasons given for them will warrant.
    It is hardly necessary to say that to-day the great weight of authority sustains the doctrine first announced in this state in. the Stevens case, as since explained by the Heavy case — the Divinney case, 17 Ohio St. 209; Kumler case, 33 Ohio St. 153, and divers other cases, because no one is more familiar with that fact than the court.
    If the circuit court was right in its construction of the Pennsylvania decisions, that the right of authority to exercise supervision or oversight, “ if he wanted to,” by a superior officer, regardless of whether or not he chose to so exercise it, reduced the officer to the level of a co-laborer, with a shovel, then we say, it was equal to saying that a superior officer may devolve upon an inferior officer, absolute control and discretion, and thus absolve the master from all liability or duty in favor of a laborer. It is more, it is equal to saying that certainly the negligent acts of no officer below the president can make the corporation liable, and probably he could not, as he is but the executive officer of the board of directors.
    Carrying, then, the doctrine of the circuit court to its logical result, it would be, that in Pennsylvania a corporation could not be liable for negligent acts unless the board of directors in an officially called meeting, directed by resolution the doing of said acts, and we suppose, democratically speaking, it would be necessary that a quorum of the directors should be present and voting; and that, without counting those who were bodily present, but parliamentarily absent.
    Such holding would utterly relieve the master from all duties and responsibilities to his employee, and leave the laborer without any protection from the superior. Again, it would offer a premium for negligence and want of care.
    To assert such a conclusion, is to admit that the court did not read or understand the Pennsylvania decisions, for it is emphatically condemned by every case that speaks upon the subject: Lewis v. Seifert, 116 Pa. St. 628; Mullain v. Steamship Company, 78 Pa. St. 25; N. Y., L. E. & W. R. R. Co. v. Bell, 112 Pa. St. 400.
    
      Harrison, Olds f Henderson, and J. B. Carey, for defendant in error.
    1. The circuit court is not, under section 6710 of the Revised Statutes, as amended May 4, 1885, (82 Ohio L. 230,) required, in a proceeding in error, to make a finding of facts, though the evidence is all set forth in a bill of exceptions. Senff v. Pyle, 46 Ohio St. 102; Woolen Mills Co. v. Titus, 35 Ohio St. 253; Railroad Co. v. Collett, 6 Ohio St. 182; McHugh v. State, 42 Ohio St. 154; Coil v. Miller, 18 Ohio 28; 4 Ohio St. 25; 13 Ohio 21; Baird v. Clark, 12 Ohio St. 90; Tod v. Wick, 36 Ohio St. 371; Lawrence v. State, 12 Ohio St. 1; Jack v. Hudnall, 25 Ohio St. 255.
    II. Counsel for plaintiff contend that the second defense is defectively pleaded. We maintain (1) that it is not, and (2) that if it were, it is too late to now make the objection for the first time. Swan’s Pleadings and Precedents, 133, 166; Railway Co. v. Lewis, 33 Ohio St. 196; Revised Statutes, section 5096; Railway Co. v. Iron Co., 46 Ohio St. 44; Williams v. Finley, 40 Ohio St. 342.
    If the second defense had been substantially defective, it is too late now to make that objection. Revised Statutes, section 5115; Hallam v. Jacks, 11 Ohio St. 692; Woodward v. Sloan, 27 Ohio St. 592; 2 Bates’ Pleadings, p. 591, and cases cited; and, also, Wood v. O’Farrell, 19 Ohio St. 427; Thomas v. Pendrick, 28 Ohio St. 55.
    III. We submit that the course pursued by the trial court was i'n accordance with the practice and the law applicable to such cases. When the evidence of a foreign law consists entirely of a judicial opinion, the question of its construction and effect is for the court; and if it is uncontradicted and will not support the action, the jury should be so instructed. Kline v. Baker, 99 Mass. 253, citing Church v. Hubbart, 2 Cranch 187; Ennis v. Smith, 14 How. 400; Owen v. Boyle, 15 Maine 147; State v. Jackson, 2 Dev. 563; People v. Lambert, 5 Mich. 349; Bremer v. Freeman, 10 Moore P. C. 306; Di Sora v. Phillips, 10 H. L. Cas. 624; Cooper v. Moore, 5 Jones L. (N. C.) 130; Cobb v. Griffith & Co., 87 Mo. 94; Thompson on Trials, sec. 1054; 1 Wharton on Evidence, sec. 303, citing in support thereof, among other cases, Kline v. Baker, 99 Mass. 253, and Ingraham v. Hart, 11 Ohio 255.
    It would seem to be foolish to submit ¿se a statute, and more especially a decision of the court, of another state, for construction, to persons unlearned in the law, who might not even understand the meaning of the language or law terms employed.
    There is nothing in the Ohio cases cited by opposing counsel, which militates in the least with the doctrines of the foregoing authorities. James v. Railroad Co., 2 Disney, 262.
    IY. The law of Pennsylvania, established and settled by the adjudications of the court of that state, is the law of this case. This proposition is well settled in Ohio, whatever rulings may have been made elsewhere. In Pennsylvania, it has been repeatedly and uniformly held and decided by the court of last resort of that state, that, “ in order that workmen should be fellow-servants within the meaning of the rule that a master is not responsible to a servant for an injury caused by his fellow-servant, it is not necessary that the workman causing and the workman sustaining the injury should both be engaged in the same particular work ; ” and “ it is sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purposes; and the rule is the same, although the one injured maybe an inferior in grade and subject to the control and direction of a superior whose act caused the injury, providing they "were both co-operating to effect the same common object.”
    This was ruled by the Supreme Court of Pennsylvania in the following cases, which were offered in evidence. Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432; Weger v. Pennsylvania Co., 55 Pa. St. 460; National Tube Works v. Bedell, 96 Pa. St. 175; Railroad Co. v. Bell, 112 Pa. St. 400; Lewis v. Seifert, 116 Pa. St. 628.
    V. If Ohio adjudications can settle the law of Ohio, then Pennsylvania adjudications can settle the law of Pennsylvania. These expositions of the law, as adopted, declared and administered in the state of Pennsylvania, were made by its highest judicial tribunal, have extended from a time far back, and were numerous and uniform.
    VI. Let us now look at the declarations and adjudications of the Supreme Court of Ohio in relation to the establishment in the jurisprudence of Ohio, by judicial decisions, of new rules of law and of exceptions to the common law of England, and especially in regard to the responsibility of a master to a subordinate servant for injuries caused by the negligence of a superior servant in the same employment. Railroad Co. v. Keary, 3 Ohio St. 202; Railroad Co. v. Devinney, 17 Ohio St. 197; Berea Stone Co. v. Kraft, 31 Ohio St. 292; Kumler v. Railroad Co., 33 Ohio St. 153; Railway Co. v. Lewis, 33 Ohio St. 199; Railway Co. v. Ranney, 37 Ohio St. 665; Railroad Co. v. Webb’s Admr’x, 12 Ohio St. 475; 2 Thompson on Negligence, 1032; Railroad v. Fitzpatrick, 42 Ohio St. 318.
    These adjudications of this court show that the rules of the unwritten or non-statutory law of Ohio do differ from that of other states, and in regard to the responsibility of a master to a subordinate servant for the negligence of a superior, differ from that of Pennsylvania, and that the .adjudications of our supreme court may declare and establish new rules of action, and firmly settle new principles of law in the jurisprudence of this state, and engraft exceptions upon or work modifications of general rules of the common law.
    They further show that the repeated adjudications of our supreme court have established in Ohio a rule, that the master is responsible to a subordinate servant for an injury from the negligence of the superior servant, to whose orders he is subject, and have firmly engrafted such rule in the jurisprudence of this state, as an exception to or modification of the general doctrine upon that subject. The Ohio doctrine is against the great weight of authority : Wharton on Negligence, sec. 229; Pierce on Railroads, 366, and cases there cited.
    VII. It is settled in Ohio that the established law of Pennsylvania must determine this case. Knowlton v. Erie Railway Co., 19 Ohio St. 260; Story’s Confl. of Laws, section 242; 2 Red. on Railways, section 15.
    VIII. We have found, since the oral argument, further very well considered cases, which decide that there is different common or unwritten law in different states, and that in other states, as well as Ohio, principles of law and rules of conduct can be established in their jurisprudence, as the law of such states, by the decision of their courts. Forepaugh v. The Del., etc. R. Co., 128 Pa. St. 217; Railway Co. v. Smith, 74 Ill. 197; Hale v. N. J. Nav. Co., 15 Conn. 539; Railway Co. v. Tanner, 68 Ga. 384; Bridger v. R. R. Co., 27 S. C. 456; Davis v. N. Y. & N. E. R. R. Co., 143 Mass. 301.
   Bradbury, J.

The record discloses that the plaintiff in error, a boy of about sixteen years of age, was in the service of the defendant as one of a gang of employees engaged in relaying the track of a branch of defendant’s railroad; that his work, mainly, consisted in carrying water for the other members of the gang; occasionally, however, he assisted in the work they were doing; that on the day he was injured a train of cars loaded with cinders, for ballasting the track, was waiting to be unloaded, and that as he was climbing on one of the cars, or perhaps had gotten on it, to help unload the cinders, the train was started forward, by reason of which he was thrown from the car, under its wheels, receiving, besides other lesser injuries, one necessitating the amputation of a leg between the ankle and knee. The foreman of the gang discharged and employed men, had immediate control of them while at work, and of the work being done. Undoubtedly, according to the law of this state, he- was such a representative of the company as would render it liable to one of the gang of men under his control, who should be injured by his negligence. At this point there is a conflict in the testimony respecting the conduct of the plaintiff in error and the foreman, and the immediate circumstances under which the plaintiff went upon the car and the train put in motion; but there is evidence from which the jury could find that the foreman ordered the plaintiff to assist in unloading the cinders; that in obedience to this order he attempted to climb upon a car; that he did so in a reasonably careful manner, and that the foreman carelessly, even recklessly, ordered the train to be moved forward before the plaintiff had secured himself a safe footing upon the car he was attempting to board, thereby throwing him from it and under its wheels, causing the injury of which he complains; thus giving to the plaintiff, according to the law of Ohio, a right of action against the railroad company.

The real questions in contention between the parties in this court arise out of the fact that the accident occurred in the state of Pennsylvania.

The defendant in error, also defendant in the court of common pleas, interposed in the last named court among other defenses the following:

“For a second defense, it says that said plaintiff entered into its employ within the state of Pennsylvania, and was employed to serve the defendant within the said state of Pennsylvania and with reference to the laws of said state of Pennsylvania. It says further, that under the laws of said state of Pennsylvania, within which said contract was made, and where said plaintiff was acting as an employee of the defendanfc, the plaintiff and all the other employees, including said gang boss named in plaintiff’s petition, engaged upon and about the train in the unloading of the same, are held to be fellow employees, and for the negligence of either resulting in injury to the other, the common master, to wit, the defendant, is held not to be liable to the other. Wherefore this defendant asks to be dismissed with its costs.”

The sufficiency of this defense is denied by counsel for plaintiff in error in a forcible and ingenious argument, in which they specially criticise the averment, “ are held to be fellow employees,” etc. It is true there is no direct averment that any of the courts of Pennsylvania so held, but the liberal rules applicable to' the construction of pleadings in this state, require us to infer that the pleader so intended. No objection, by-motion or otherwise, was made to the form of this defense in the court of common pleas, or so far as the record discloses, at any stage in the progress of the case, until made by counsel in their brief filed in this court. Under this defense a number of the decisions of the Supreme Court of Pennsylvania were introduced in evidence to establish the rule of law attempted to be set up by this answer. Whether upon motion, made at the proper time, the defense should have been made more certain and definite, we need not inquire ; for at this late stage in the proceedings, after a strongly contested trial, mainly had upon the issues made by this very defense, and the reply denying its truth, the defense should receive the most favorable construction its language will permit; and when the pleader has averred, as in this defense, that “ under the laws of the state of Pennsylvania .....the plaintiff and the ‘ gang boss ’.....are held to be fellow servants,” it is entirely reasonable to infer that the alleged holding was, by the courts, of that state having authority to declare and announce the rules of law, operative therein.

The record of the proceedings in the circuit court is ambiguous. One of the assignments of error made in that court, by the defendant in error here, was that the court of common pleas erred in overruling its motion for a new trial, and one of the grounds for a new trial stated is that the motion was that the verdict was contrary to the weight of the evidence, so that the circuit court had before it for decision that question; and had it reversed the judgment of the court, of common pleas on that ground, this court would not have reversed its action, and the same result would have followed from a general judgment of reversal — that is, one specifying no particular ground for the action of the court — for in that case, as the court might have reversed the judgment on the ground that it was contrary to the evidence, this court cannot say that was not the ground of its action. Titus v. Lewis, 33 Ohio St. 304.

In the case at bar, however, there is an attempt to. state in the journal entry of the circuit court the grounds of its action, in reversing the judgment of the court of common pleas, as follows:

First — The court finds from examination of record and bill of exceptions, that it was not controverted in the trial in the court below but that there were officers of the Pennsylvania company superior in authority to Frank Kennan, who had the right and authority to contract and supervise his action in conducting the work, and controlling the men during the work in which the plaintiff below was engaged at the time he received the injury.
Second — The court holds as conclusion of law, that the determination of this case must be governed by the law in the state of Pennsylvania.
Third — The court further finds as a conclusion of law, from the reports of the decisions of the Supreme Court of Pennsylvania, contained in the record, that said Frank Kennan was a fellow-servant and co-employee with said Alexander at the time he received his injury, and therefore that plaintiff in error is not liable for the alleged negligent acts of said Kennan which caused the injury to defendant in error, to all of which holdings defendant in error excepted.”

This is not, in the correct and legal sense of the term, a finding of the facts in the case and a statement of them separately from the conclusions of law arrived at by the court, although it closely resembles it in form; for it is not within the province of the circuit court in a proceeding in error before it to find from the evidence contained in the bill of exceptions the facts and state them separately from its conclusions of law. Senff v. Pyle, 46 Ohio St. 102; Young, Treasurer, v. The Pennsylvania Company, Ib. 558. Neither does it give as the ground of the reversal any one of the errors assigned in that court.

What it really does disclose is that the circuit court, being of opinion that the law of Pennsylvania should govern the case, the verdict of the jury was- against the weight of the evidence, because from a consideration of the whole evidence, it appeared that the plaintiff in error was a fellow servant of the “ gang boss ” by whose negligence he was injured, and that in such case the law of Pennsylvania would not permit a recovery to be had' against the railroad company, in whose service both were at the time engaged. It may be considered, therefore, as fairly shown by the record, that the circuit court would not have reversed the judgment of the court of common pleas if it had not held the case to be governed by the law of that state. It therefore becomes material to inquire if the circuit court was right in this respect.

The first branch of the inquiry concerns the method by which the law of Pennsylvania is to be determined. Is it to be found as matter of fact by the jury from the evidence, or judicially declared by the court? That it is a fact to be determined by the jury, is, we think, a well established principle of law. Ingraham v. Hart, 11 Ohio 255; Bank v. Baker el al., 15 Ohio St. 68; Williams v. Finlay, 40 Ohio St. 342.

It does not follow from this, however, that where, as in the case at bar, numerous decisions of the several courts of a state are introduced in evidence to a jury as proof of the law of such state, that the jury should be required to search through them, elucidate and announce the doctrine they establish; this is often a most difficult and delicate dutjr for courts and judges of the greatest skill, learning and experience to undertake. To submit its performance to a body of men inexperienced in the examination and construction of judicial decisions, and not familiar with the general doctrines pertaining to the subject, would be to submit the rights of parties involved in the controversy to be determined by a method little, if any, more certain than the cast of a die.

In such case it becomes the duty of the court, as in the case of any other documentary evidence, requiring construction, to construe the decisions, the rulings of the trial court in this respect being subject to review by other courts having jurisdiction in error, thus securing as much certainty in ascertaining the law of another state or country as the nature of the subject will admit. Di Sora v. Phillipps et al., 10 H. L. Cases, 624; Bremer v. Freeman et al., 10 Moora, 306; State v. Jackson, 2 Dev. Law, 563; Cobb v. The Griffith & Adams etc. Co., 87 Mo. 90; Kline v. Baker, 99 Mass. 253; Thompson on Trials, section 1054.

The record discloses that the contract by which the plaintiff in error was employed, was made in the state of Pennsylvania ; that his services were to be rendered wholly within that state, and that he was injured therein.

If the right of a servant to recover damages from his master on account of an injury received through the negligence of a superior servant of the same master arises out of contract, then the case of Knowlton v. Erie Railway Co., 19 Ohio St. 260, is decisive of the case at bar.. The syllabus of that case reads: The defendant is a common carrier of passengers, incorporated by the laws of New York, and was sued as such common carrier on account of injuries received by the plaintiff whilst being carried as a passenger from one point to another on defendant’s road, and wholly within said state. The injury was charged to have been occasioned by defen dant’s negligence. The pleadings show that the plaintiff was being carried gratuitously at the time of the accident, under a contract by which the plaintiff assumed all risks of accident and injury arising from negligence, etc., and that such contract is valid by the laws of New York. Held: That the validity of the stipulation exempting the defendant from liability for negligence must be determined by the laws of New York, within whose jurisdiction the contract was made and to be executed; and as the plaintiff, under his contract, could have no right of action in the courts of New York, so his action cannot be maintained in this state.”

In Railway Company v. Ranney, 37 Ohio St. 665, McIl-VAINE, J., said, (page 669) : “ The principles of law in relation to the liability of a master for an injury to his servant while engaged in the performance of duties under his employment, have been so frequently considered and declared by this court, and upon such varied statements of fact, that one might be justified in assuming that the law upon this subject, in all its bearings, has been fully settled. The respective rights and duties of employer and employee, sound in contract. The employer implicitly engages to use reasonable care and diligence to secure the safety of the employee, and among other things, to exercise reasonable care in the selection of prudent fellow-servants. He also engages that every one placed in authority over the servant, with power to control and direct him in the performance of his duties, will exercise reasonable care in providing for his safety, whether such superior be a fellow-servant or not, in the ordinary sense.”

There is strong ground to contend that Judge McIlvaine states the rule correctly. But, however that may be, and whether the action of the plaintiff in error sounds in contract or tort, in either case we think it is to be governed by the law of Pennsylvania. If the acts of the parties impose no obligations on the one hand and confer no rights upon the other, where they occur, no good reason is apparent why they should spring into active existence the moment the parties pass into another jurisdiction, where, if they had occurred therein, such relative rights and obligations would have resulted. An act should be judged by the law of the jurisdiction where it was committed; the party acting or omitting to act must be presumed to have been • guided by the law in force at the time and place, and to which he owed obedience ; if his conduct according to that law violated no right of another, no cause of action arose, for actions at law are provided to redress violated rights. Nor is it material that the rules of Pennsylvania law that deny relief to plaintiff in error result from the adjudications of the courts of that state, instead of being legislative enactments. The rules of law established by judicial decisions, are as binding as legislative enactments, until modified, or overturned by other decisions or legislative enactments binding within that jurisdiction.

In theory it may be true, that there is no common law of Ohio, or of Pennsylvania; that the common law is one and the same in every state acknowledging its obligations, and that the decisions of one state are but evidence of it, not binding upon the courts of any other state ; but as matter of fact we know that in the application of the rules off the common law to the affairs of men, there is, unfortunately, in the several states a wide divergence; and that it necessarily follows that acts and transactions, sufficient in one state to create a cause of action, will not produce that result in another, and in the administration of justice mere theory must be made to yield to the truth as established by facts and experience.

Other questions were urged upon our consideration by counsel in argument, some, or all of which may be material upon the re-trial of the action, but they are not presented by the record in such manner as to authorize their consideration at this time, and will not be noticed.

Judgment affirmed.  