author: GIFFEN, J.

text:
    SPECIFIC PERFORMANCE.
    [Hamilton (1st) Circuit Court,
    June 2, 1906.]
    Jelke, Swing and Giffen, JJ.
    Carey & Zimmerman v. Arthur P. Taylor.
    PURCHASER OF REAL ESTATE GOING INTO POSSESSION UNDER CONTRACT LIABLE EO* Interest on Purchase Money Withheld until Good Deed is Furnished.
    A purchaser of real estate, under a contract which calls for delivery of possession and- a good title on a certain day, who goes into possession on the day named, but does not receive a deed nor pay the purchase money, owing to a defect in the title,, until some months later, is liable to the vendor for interest on the purchase money from the date when he took possession until the time of payment.
    [Syllabus approved by the court.]
    W. M. Fridman, for plaintiffs.
    Malcolm McAvoy, for defendant.
   GIFFEN, J.

This is an action for the specific performance of a contract to purchase certain real estate, entered into January 20, 1905, by the terms of which plaintiff was to pay $1,000 cash on February 10, 1905, and the balance, partly by assuming a mortgage then on the property, and partly by a second mortgage for such sum as would bring the total up to $4,200.

The contract contained the clausé:

‘ ‘ The property to be conveyed to me by general warranty deed with release of dower, title of property to be good.”

An examination of the title disclosed a substantial defect, which was reported to plaintiffs, but on February 10, 1905, defendant took possession of the premises with the understanding that the defect would be cured, but without .any agreement to pay rent or interest on the purchase money in the meantime. The‘title was not perfected nor was the deed tendered until September 22, 1905, when interest was demanded upon the purchase money from February 10, 1905. The defendant denies the right of plaintiffs to such interest and avers that on February 10, 1905, and until September 22, 1905, he was ready and willing and anxious to perform his part of said agreement whenever plaintiffs would tender him a proper warranty deed and title to said premises.

The question presented is, whether a purchaser in possession of the premises is chargeable with interest on the purchase money during the period of time from the date when the contract was to be completed and the actual tender of the deed, the delay being occasioned by the failure of the vendor to perfect the title. When defendant avers that he was always ready and willing to perform his part of the contract, it does ■not appear that such fact was communicatéd to the plaintiffs, nor that he offered to perform. Plaintiffs were, therefore, not in default to the extent that defendant could have brought an action for specific performance. Raudabaugh v. Hart, 61 Ohio St. 73 [55 N. E. Rep. 214; 76 Am. St. Rep. 361].

When the defendant was put in possession of the premises, the plaintiffs did all they could at that time do in fulfillment of the contract, and it was evidently the intention of the parties to complete the contract when the defect in the title was cured. In the meantime, the defendant suffered loss, if at all, only in interest on the $1,000, but it does not appear from the pleadings that he even sustained this loss. The $1,000 may have been earning interest during the entire period, or, if not, it was his duty to deposit it in bank, and notify the plaintiffs that this money together with such interest as the bank might allow, would be subject to their order upon a tender of a good and sufficient deed. In the event that such deed could not be tendered, or the defect in the title could not be removed, and the defendant was, therefore, compelled to surrender possession of the premises, he would not be liable for rent during the time he occupied the same, as the relation of landlord and tenant did not exist.

In Pomeroy, Spec. Perf. of Contr. Secs. 429 and 430, are as follows:

“The general rule is well settled that, where the contract is not completed until after the time stipulated for that purpose, but the court nevertheless decrees a specific performance, it will adjust the equities of the parties by placing them as far as possible in the same position which they would have occupied had the agreement been completed at the prescribed day, and to that end it will allow to the purchaser the rents and profits, and to the vendor interest upon the purchase price from and after that date.
“In ordinary contracts, which contain no stipulation concerning the payment of interest, and do not specify any day for completion, the purchaser is generally liable to pay interest on the purchase money from the time when he takes the possession, especially if he has received the rents and profits.”

To the same effect is Dart, Vend. & Pur. p. 627, and following.

The reason of the rule seems to be, that a party to-tbe sale of real estate cannot have the rents and profits and also the use of the purchase money, the object being to place the parties in a position as near as possible to that which they would have occupied had the contract been completed at the date agreed on.

The demurrer to the answer will be sustained.

Jelke and Swing, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    LIFE INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    June 15, 1906.]
    Marvin, Winch and Henry, JJ.
    Frank Newmore v. Western & So. Life Ins. Co.
    Line INSURANCE — Brothers have no Insurable Interest in Each Other’s Lives jtrom Mere Relationship.
    One who takes out a policy of insurance on the life of his brother without the knowledge of the latter, and for the avowed purpose of providing for the funeral expenses of the insured, who is indigent but who is young and in good health, has no such insurable interest in the life of the insured as would enable him to maintain an action against the company to reform the contract of insurance, incorrectly made out by the company’s agent, and to recover from the company the amount of the policy, on the death of the insured.
    [Syllabus^ approved by the court.]
    Error to Cuyahoga common pleas court.
    W. 0. Mathews and J. H. Orgill, for plaintiff in error.
    C. L. Selzer, for defendant in error.
   MARVIN, J.

In this ease the court of common pleas sustained a general demurrer to the petition and, the plaintiff not desiring to plead further, judgment was entered that the petition be dismissed at the costs of tbe plaintiff. To this order and judgment error is prosecuted here, and we have then the question, whether the allegations of the petition are such, all being true, as to entitle tbe plaintiff to any relief. The material allegations of the petition read as follows:

“For his first cause of action against defendant, plaintiff says that on or about the eleventh day of October, 1904, at the city of Cleveland, in said state, one H. Stoner then and there being a duly authorized and acting agent of defendant, solicited plaintiff’s wife to take out a policy of insurance upon the life of Peter Newmore, a brother of plaintiff; that plaintiff’s said wife then and there acting for .and on behalf of plaintiff, and being authorized by plaintiff so to act in the premises, consented to take out a policy of insurance from defendant upon tbe life of said Peter Newmore, and tben and there gave to said Stoner the street address at which the said Peter Newmore «ould be found; that at the same time and place, said Stoner produced an application blank to plaintiff’s wife and pretended to fill out the same, pursuant to questions propounded to, and answered by, plaintiff’s said wife, but that said agent without the knowledge or consent of plaintiff or his said wife, erroneously named as beneficiary in said application one Kate Newcome, whose relationship is stated to be that of a daughter and whose age is stated to be ten years, whereas the directions ’given by plaintiff’s wife on said occasion, she then and there acting for and on behalf of plaintiff, and being duly authorized to act in the premises, were to name as beneficiary in said application the plaintiff herein, whose relationship was given as that of a brother and whose age was given as thirty-three years; that said Peter Newmore had no daughter nor was nor is there existing any such person as Kate Newcome, aged ten years as stated in said application.
“Plaintiff further says that said Stoner, having procured the foregoing information as to the beneficiary, agreed to seek out said Peter Newmore and make a personal examination of him and procure from him the remaining information made necessary by said application-that on or about the twenty-fourth day of October, 1904, the defendant delivered to plaintiff its policy No. 1,119,071 upon the life of said Peter Newmore, the premium upon said policy being $5.20 per year, payable weekly, the payment of such sum being the consideration upon which said policy was issued, and said sum having been paid by plaintiff regularly from and after the issuance of said policy, and such payment being made through his wife acting as his agent as hereinbefore stated.
“Plaintiff says that the ’errors appearing in said application were and are due to the mistake and fraudulent conduct of the company’s said agent; that at the time said application was made, the said Peter Newmore was indigent and plaintiff desired, solely by reason of his relationship to him, to provide for his proper interment in the event of his death, and that plaintiff had an insurable interest in the life of said Peter Newmore.
“Plaintiff further says that question eleven of said application required an answer as to the fact of said Peter Newmore’s being insured in the defendant company or in other companies together with the names, amounts, and numbers of the policies in said companies; that the answer to said question eleven, as it appears in said application, was, that said Peter Newmore was not insured in the defendant company or in any other company or companies, whereas there was upon the date of said application an existing policy upon the life of said Peter Newmore in the sum of $550 payable to the wife of the insured; that neither plaintiff nor his said wife acting as his agent, had any knowledge whatever,, of the existence of said policy, and plaintiff avers, that the said answer to question eleven in said application was, through tbe fault and negligence of said Stoner acting as agent for and on behalf of the said company, erroneously and incorrectly written in said application, and that defendant would have obtained the information required by the ninth paragraph of the condition of said policy were it not for the fault, neglect, and mistake of its own agent in procuring said policy; that if said agent had correctly written the answer to said question eleven, and had made proper inquiry and investigation as he undertook to do, plaintiff would have had the opportunity to procure upon said previous policy the indorsement required by said ninth paragraph of the conditions of said policy, and which plaintiff did not procure. ’ ’

It then goes on to aver that the premiums were paid by the wife of the plaintiff acting as his agent, and that Peter Newmore, the insured, died, and the plaintiffs seek a reformation of the contract, and that.he have judgment against the insurance company for the amount named in the policy.

It will be noticed that no allegation is made that the insured ever knew of the issuance of this policy. It was taken out by the plaintiff, on his own application, the premiums were all paid by him, and the benefits, if the policy had been written as the petition says it should have been, were all to come to him. The relationship between the insured and the beneficiary was that of brothers. There was no dependence in any way of one upon the other. The amount for which the policy was taken was small, being but for $112, and it is alleged that the insured was indigent, and the plaintiff wished to provide funds in this way for the proper funeral expenses of the insured when he should die.

It is, however, further alleged that the insured already had a policy in this same company for $550, payable to his wife. True, it is said that this was unknown to the plaintiff and to his wife, who acted as his agent in all matters relating to this policy, but surely a very little effort on the part of the plaintiff or his agent woúld have obtained this information for them, and they would have been relieved of any anxiety about the funeral expenses.

There is nothing in the petition to indicate 'that the insured was likely to die before the plaintiff. He was but thirty-six years old and in good health when the policy was" issued.

There was nothing, then, to relieve this from the obnoxious features spoken of in the books as “a wagering contract” except the relationship between the parties.

In Ryan v. Rothweiler, 50 Ohio St. 595, 601 [35 N. E. Rep. 679], Judge. Burkett quotes with approval the following language from May, Insurance See. 75b.

“While a man may cause his own life to be insured for the benefit . of a stranger, and the want of insurable interest in the stranger will not invalidate the policy, a policy taken out by a man for his own benefit on the life of a stranger, would be void for want of insurable interest.”

This proposition is thoroughly settled, but the question still remains whether, in the sense in which the word “stranger” is used in this proposition, it includes a brother as such.

In Lewis v. Insurance Co. 39 Conn. 100, it is said in the syllabus, “That the mere relationship between the plaintiff (the beneficiary) and L (the insured) was not such an interest as would support the policy.” The relationship spoken of was that of brothers. In the same ease, at page 104 of the opinion, it is said:

“We think it a correct legal proposition that the mere'relationship of a brother is not such an interest as will support a policy of life insurance. ”

In Bliss, Life Insurance there is a very full discussion of what constitutes an insurable interest in the life of another, beginning with Sec. 20 and ending with Sec. 31. The heading of the last named section is ‘1 General Conclusions, ’ ’ and the following language is used:

“With reference to the insurable interest arising or implied from relationship, the correct view would seem to be, that an insurable interest will be held to exist where the relationship is such that the assured has a legal claim upon the insured for services, or for support, or where, though such legal claim does not exist, yet from the past personal relations of the two, and the treatment of the assured by the insured, or possibly his declared intentions, the assured has a reasonable right to expect some pecuniary advantage from the continuance of the life of the insured, or to fear loss from his death. On this principle a father would have an insurable interest in the life of his child, whether a' minor or of full age, and the child in the life of his father. So would a wife in the life of her husband, and a husband in the life of his wife. But a brother or a sister would not have such interest in each other, nor a nephew in an uncle, unless some facts outside of the mere relationship are shown, though those facts might be very slight.”

In Connecticut Mut. L. Ins. Co. v. Schaefer, 4 O. F. D. 408 [94 U. S. 457; 24 L. Ed. 251], the court, on page 461, cites these sections of Bliss as well as. of May, Insurance Secs. 102 to 111, which are to the same effect, and says that all the authorities of importance are collected and arranged in these works. See especially, May, Insurance Sec. 107s.

We find nothing in the petition in this case, as has already been ■said, tending to show any insurable interest in the plaintiff in the life ■of the insured other than the mere fact that they were brothers, and ■this is not sufficient. It follows that the demurrer to the petition was properly sustained, and the judgment is affirmed.

Winch and Henry, JJ., concur.


author: HENRY, J.

text:
    CONSTITUTIONAL LAW — TAXATION.
    [Cuyahoga (8th) Circuit Court,
    October 29, 1906.]
    Marvin, Winch and Henry, JJ.

      State ex rel. Frederick C. Beyer v. James P. Madigan, Treas.
    Revised Statutes 1365-25 (Lan. 2791), Providing that the Countv Commis-sionees in Certain Counties mat Extend Time for Payment oe Taxes, Is Constitutional.
    The last clause of Rev. Stat. 1365-25 (Lan. 2791), which provides that the county commissioners in counties containing a city of the second grade of the first class may, hy resolution, extend the time for the payment ef taxes, is not a law of a general nature, as the subject is not the general one of “Taxation,” hut, the subject being the regulation of the time and mode of paying taxes, it is a matter of regulative detail subject to reasonable local or special laws. This section is therefore constitutional.
    Mandamus.
    R. A. Wilber, for plaintiff.
    Blandin, Rice & Ginn, for defendant.,

      Reversed hy Supreme Court, without report, Madigan v. State, 51 Bull. 584; 75 Ohio St. 000.

   HENRY, J.

This mandamus proceeding involves but one question, viz., the constitutionality of the last clause of Rev. Stat. 1365-25 (Lan. 2791). This section was originally part of an act fixing the salaries of county officers in Cuyahoga county; and, so far as that subject-matter is concerned, it is confessedly unconstitutional, under recent rulings of the Supreme Court, particularly State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 570], as being an act of a general nature not of uniform operation, throughout the state.

The section here in controversy reads:

“It shall be the duty of the county commissioners to see that the ■provisions of this act are faithfully complied with and that the county commissioners shall also have power to extend at their discretion, for thirty days, the time for the payment of taxes.”

The petition here alleges that the . commissioners have passed a. resolution extending the time for the payment of the first half of the-taxes for the current year from December 20, 1906, to January 19, 1907; but that the defendant as county treasurer has publicly and officially declared that he will insist upon the payment of said taxes by the forñier date, and that he will not be governed by said resolution. The petition further alleges that the relator, as a taxpayer of said county, and all others in like case will incur a penalty should they erroneously rely upon the right of said county commissioners to direct and control the conduct of the treasurer in that respect. To- this petition the defendant has demurred.

' It is of course true that if the commissioners’ resolution and the statutory provision on which it is founded are invalid, the treasurer in pursuance of his duty to collect taxes due, may, after December 20, 1906, resort to distress or other summary remedy prescribed by law to collect taxes payable on that date together with a 5 per cent penalty thereon.

The sole contention made by the defendant here is, that the section-referred to is unconstitutional. In its present form Rev. Stat. 1365-25 (Lan. 2791) was enacted May 12, 1902 (95 O. L. 573), as “An act to amend section 1365-25 of the Revised Statutes of Ohio.” It was originally enacted, April 12, 1889 (86 O. L. 264), as part of “An act relating to the duties and compensation of certain county officers and their assistants, in counties containing a city of the "second grade of the first class. ’ ’

It is admitted that Cuyahoga county is embraced within these descriptive words and that the act applies to no other county. It is true also that the constitutionality of that part of the act which relates to the time of paying taxes in Cuyahoga county is not necessarily involved in the fate of that portion which relates to the subject of salaries of county officers in this county, and which was passed upon in a former decision of this court. Nor is the style and form of this act, as distinguished from its subject-matter, conclusive against it. State v. Bloch, 65 Ohio St. 370 [62 N. E. Rep. 441].

As is well known, the recent decisions of the Supreme Court have revolutionized the principles of constitutional interpretation, as applied to the judicial construction of the. meaning and application of the-expressions “general laws,” “laws of a general nature” and “special acts” as contained in the constitution of this state. In State v. Spell mire, 67 Ohio St. 77 [65 N. E. Rep. 619], the rule is laid down in the first paragraph of the syllabus as follows:

“Whenever a law of a general nature having a uniform operation throughout the state, can be made fully to cover and provide for any? given subject-matter, the legislation, as to such subject-matter, must be-by general laws, and local or special laws cannot be constitutionally' enacted as to such subject-matter.”

In that case the'subject-matter of schools and school districts was” declared to be of a general nature. In a previous decision, that of ’ Hixson v. Burson, 54 Ohio St. 470 [43 N. E. Rep. 1000], roads and highways had been declared to be a subject-matter of a general nature.

Gentsch v. State, 71 Ohio St. 151 [72 N. E. Rep. 900], presents serious difficulties. There an act was held valid prescribing a time for keeping the polls open at elections in cities with a population of 300,-000, or more, different from that prescribed by the same act for other-parts of the state. It was held that the subject-matter of the act, to wit, elections, was of a general nature, but that the uniformity of its operation was not negatived by the special provision for cities above a certain size. The act was indeed in “operation throughout the state,’* and it was held to be “of uniform operation throughout the state.”'

It is argued that this decision, though correct as to the result., might better have been put on another basis. For mere regulative details with respect to the conduct of elections in different localities to meet special conditions, may well be considered a subject local in its nature, and hence a proper subject of local or special legislation, though the elective franchise and substantive laws governing its exercise are of a general nature and must, therefore, be of uniform operation throughout the state. Hence it is claimed that the provision of law under consideration in Gentsch v. State, supra, might well be deemed to be of a local nature and hence not required to be of uniform operation throughout the state.

And it is indeed upon a precisely similar distinction that the decision in Silberman v. Hay, 59 Ohio St. 582 [53 N. E. Rep. 258; 44 L. R. A. 264], is discriminated from that of McGill v. State, 34 Ohio St. 228. The one case held invalid the law prescribing restrictions upon, the right of jury trial in Cuyahoga county different from those obtaining elsewhere. The .other case upheld a law prescribing method of selecting persons for jury duty in this county different from that provided for other counties. Superficially the subject-matter of both acts? would seem to be the same, to wit, juries, — a subject manifestly of at general nature. Actually, however, there are two subjects, to wit, the right of jury trial and the selection of persons for jury duty. The former is clearly of a general nature; the latter a matter solely of administration, to be regulated according to local exigencies. And it was so' held. The second paragraph of the syllabus of McGill v. State, supra, is as follows:

“The act of May 7, 1877 (74 O. L. 218), regulating the selection of jurors for the county of Cuyahoga, is not a law of a general nature within the meaning of Sec. 26, Art. 2 of the constitution.”

In Silberman v. Hay, supra, it was said by Minshall, J., at page 589:

“The law here in question affects the right of trial by jury — a subject of general interest throughout the state; the law considered in McGill v. State, simply affects the mode of selecting electors for jury service; and, in this regard, local circumstances may in the interests of the integrity of the system require special legislation.”

In the case before us, if the subject-matter of this portion of the act be deemed to be taxation, it is of course of a general nature requiring uniform operation throughout the state. But if the subject-matter here be deemed to be the regulation of the mode and time of receiving payment of taxes it is not clearly of a general nature. May it not be true that the times and methods of selecting persons for jury service, and of receiving payment of taxes, are matters of regulative detail capable of being fixed and determined by reasonable local or special laws suited to the exigencies of each case and the real needs of each locality as the legislature shall determine? True, the case of State v. Gentsch, supra, is apparently put by the Supreme Court on a different footing; and the case of McGill v. State, supra, is severely criticized in State v. Spellmire, supra. But when Silberman v. Hay, supra, was decided, the Supreme Court had already announced the doctrine of Hixson v. Burson, supra, and there was a clear opportunity, nay a clear duty, to reverse McGill v. State, supra, if such reversal were ever contemplated.

It is evident, from the foregoing that the law now under consideration is far from being clearly an act of a general nature; and hence the want of universal operation territorially throughout the state is not manifestly fatal to its validity. The legislature may well have been actuated in passing this law by consideration of local conditions which require a longer time for the preparation of the duplicate and the receipt of taxes in a county containing a city of the magnitude of Cleveland. -Revised Statutes 2863 (Lan. 4322) also recognizing this situation, gives the auditor forty days more in this county for the delivery to the treasurer of his duplicate than is given in other counties. Revised Statutes 2864 (Lan. 4323), gives him a fortnight longer to prepare and publish his delinquent land list. The statutes abound in other like exceptions. Much and grievous harm might easily result not only to the local taxpayers and to this community generally, but even to the integrity of the taxation system in the state, if the courts were to declare as a matter of law that the legislature could and should have passed adequate general laws of uniform operation throughout the state on the subject of the time and manner of receiving payment of taxes in each and every county, great and small alike. No inconvenience can result to the public from a judicial recognition of the sound discretion of the legislature in thus interpreting its own constitutional duty in this behalf.

The rule of interpretation laid down for the courts is thus expressed by Spear, J., in Marmet v. State, 45 Ohio St. 63 [12 N. E. Rep. 463], at page 64:

“If the law, as to the provisions involved in this inquiry, is shown to be clearly, palpably in conflict with the constitution,' so that there is no doubt or hesitancy in the mind of the court, it should be so held. But if there be any doubt upon the subject, that should be solved in favor of the law, and the court should decline to interfere.”

Holding the views thus expressed we are of the opinion that the demurrer to the petition should be overruled, and it will be overruled, and a mandatory writ will be issued as prayed for, provided the plaintiff cares to avail himself of the right to amend his petition by inter-lineation so as to include an express allegation of the admitted fact that Cuyahoga county was a county containing a city of the first elassP second grade, at the time this law was made.

Winch and Henry, JJ., concur.


text:
    ADVERSE POSSESSION — EJECTMENT.
    Marvin, Winch and Henry, JJ.
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]

      Rebecca Heller v. David R. Hawley.
    1. Plaintiff in Ejectment may not Show Defective Title in Defendant, Arising from a Common Predecessor unless Defendant Claims Title from such Predecessor.
    In a suit in ejectment, where the defendant admits possession and asserts title hy adverse possession, she and her grantors having been in adverse possession for over thirty-five years and having claimed the premises, it is error to allow the plaintiff to introduce evidence tending to show that the same person from whom he claimed a record title is also the predecessor of the defendant hy mesne conveyances improperly containing in their descriptions the land in dispute. ■ He could show such failure of title in the defendant, subsequent to their common predecessor, only on a claim by the defendant of title coming originally from such common predecessor.
    2. Adverse Possession need not be “Undisputed.”
    It is error for the court to charge that adverse possession sufficient to establish title must he not only “open, notorious, continuous, and adverse,” but also “undisputed.”
    [Syllabus approved hy the court.]
    ERROR to Cuyahoga common pleas court.
    Arnold Green, for plaintiff in error.
    Solders & Solders, for defendant in error.

      Dismissed by plaintiff at his costs, Hawley v. Heller, 51 Bull. 240.

   MARVIN, J.

Suit was brought in the court of common pleas by Hawley to recover possession from Heller of certain real estate in the possession of Heller. The petition was in the usual form of a petition in ejectment, ■setting up that Hawley was the owner, and that Heller was in possession and unlawfully kept him out of such possession.

Heller answered, setting up three defenses:

First. She denied the ownership and right of possession of Hawley. She admitted that sh^ was in possession and averred that she was the -owner of the premises in fee simple.

Second. She averred that under a claim of title and by virtue of a warranty deed, she had been in open, notorious, continuous, adverse and undisputed possession of the premises for many years, and that L. E. Holden, from whom she purchased and who delivered the possession to her, had been in like manner since January 4, 1872, a period of about thirty years before the bringing of the action, in open, notorious, continuous, adverse and undisputed possession of the same premises, and that the persons from whom he derived title had been in like possession for many years, and that the right of the plaintiff: to maintain any action for the possession of the premises for the reason that she and those under whom she claimed her title had been in such adverse possession for at least thirty-five years.

Third. She repeats her averments of adverse possession; says that for over thirty-five .years she and her predecessors in title, by virtue of deeds duly acknowledged and recorded, have claimed the premises and have erected lasting and valuable improvements thereon, with the knowledge of, and without interference by, the plaintiff or his predecessors in title.

To this the plaintiff replied, denying that defendant was owner in fee simple, and all allegations of the answer which deny the absolute -ownership in the plaintiff and deny the adverse title and possession in the defendant and her predecessors.

With the pleadings in this situation, the ease went to trial to the -court and Jury, resulting in a verdict and judgment for Hawley. By proper proceedings "in error the case is here for review.

A bill of exceptions is filed here containing all the proceedings •on the trial, including the evidence, the rulings of the court on the admission of evidence, and the charge of the court to the jury.

It will lie seen that the plaintiff was put to the proof of his title, •as he must recover, if at all, upon the strength of his title and not upon •the weakness of the title of her who was in possession.

To prove his title, the plaintiff introduced records of deeds, showing that at one time one D. W. Babcock had a deed of certain real estate, including the lands here in dispute and other lands which the plaintiff now owns immediately adjoining the same on the east, and also lands immediately to the west of the disputed land, which last-named land is now owned by Heller, the land in dispute being a strip five feet in width fronting on Harrison street, now in the city of Cleveland, and extend'ng back seventy-two and one-half feet from said street, so that Hawley is the undisputed owner of the land bounding on the east and Heller is the undisputed owner of the land bounding on the west of the ■disputed land. Hawley thus having shown such deed in Babcock, ■showed by proper record that Babcock conveyed by warranty deed a tract including the disputed tract and the lands on the east thereof in ' 1864, and that through various mesne conveyances the record title which Babcock had is now in Hawley. The plaintiff then offered in evidence record of deeds, beginning with a deed from Babcock in 1866 and showing by this and by mesne conveyances that the record title which L. E. Holden, from whom Heller says in her answer she received her deed and who put her into possession, did not include the land in dispute, but only the land immediately on the west of it, and then the deed from Holden to Heller, executed less than twenty-one years before Hawley brought suit to recover possession, the deed from Holden including the disputed tract. All of this evidence tending to trace the title of Heller back to Babcock was objected to by Heller, but was admitted over such objection. Proper exception was taken by Heller, and it is now urged by plaintiff in error that there was error in the introduction of such evidence.

The defendant in error insists that it was properly admitted and that by it he was relieved in making proof of his own title from tracing the title back of Babcock.. It is not contended by counsel for Hawley but that he must, to make his case, trace title under which he claims back to the government or to one in possession from whom he or one of his predecessors obtained title, or to one under whom both parties claim title. This rule is well stated in Middleton v. Westerney, 4 Circ. Dec. 650 (7 R. 393), the second clause of the syllabus of which reads:

“Where the title of the plaintiff is denied by the answer of the defendant, and possession of the land claimed is, by force of the statute, thereby admitted by the defendant, to entitle the plaintiff to recover, he must show a better title to the land in controversy than that of the defendant. A prima facie case is made by his showing a conveyance to him or one of his grantors in his chain of title, by one then in the possession and occupancy of the land in question. If this is not done,, he must run his title by deed or other necessary proof, to some one-shown or admitted to be the common source of title, to him and the defendant and in default of there being such common source of title, back to the government. And on his failure to offer evidence tending to do either, it is not error in the trial court to withdraw the evidence from the jury and render a judgment for the defendant.”

See, also, the opinion of Judge Ranney in Blake v. Davis, 20 Ohio 231, 239, in which this language is used, speaking of the plaintiff in an ejectment case:

“Neither he nor those under whom he claims ever having had possession of this land, it was incumbent upon him to show a connected paper title from the government to sustain the action of ejectment.”

That it is sufficient in Ohio that the plaintiff in ejectment show a better title than the defendant from one vendor whom both claim, is well settled. In Hart v. Johnson, 6 Ohio 87, it is said:

“Where both parties’ claim to title is based on a common origin, neither can go behind the person from whom they hold or show that his claim is not good.”

In Newell, Ejectment 585, note 4, it is said:

“Where both parties claim title from the same grantor it is sufficient to establish a prima facie case to prove derivation of title from the common grantor without proving his title.”

In Doe v. Dugan, 8 Ohio 87 [31 Am. Dec. 432], it is said:

“Where the source of title is common to both parties, in ejectment, neither is at liberty to contest it.”

If, then, in this case, both parties were claiming title through or under Babcock, the plaintiff was relieved from the necessity of going back of Babcock.

The claim of Hawley is, that by her answer Heller set up title under deed from H'olden, and that, therefore, she must defend on Holden’s title.

It is true she pleads a deed from Holden and that she took possession under him, and that this possession of him under whom Holden claimed, and the possession of Holden and her own possession constitute a continuous adverse possession against the plaintiff for more than thirty-five years, Hut she nowhere asserts that either Holden or any predecessor of his had a good title, but only that they claimed title. All title passed out of Babcock to the lands now owned by either thA plaintiff or defendant more than thirty-five years ago. Heller does not in her answer assert a good title in anyone but herself, and she says that this title is founded upon adverse possession.

The evidence under discussion sought to force upon her a claim of title coming originally from Babcock.

The evidence properly admissible under these pleadings is exactly what it would have been if Heller had simply denied the plaintiff’s title. See Kyser v. Cannon, 29 Ohio St. 359; Rhodes v. Gunn, 35 Ohio St. 387. From what has been said, it follows that there was error in the admission of the records showing title by mesne conveyances from Babcock to Heller.

Complaint is made of the charge of the court in the use of the following language:

“By the claim of adverse possession the defendant and her predecessors must have been in open, notorious, continuous, adverse and undisputed possession of the land for twenty-one years in order that she may have the right thereto. ’ ’

We hold that the word “undisputed” should not have been used. The fact that the plaintiff or any,other owner “disputed” the defendant’s right to occupy would not of itself interfere with the running of the statute of limitations.. The requisites of adverse possession are, that it be, as stated by Judge Follett, in the opinion in Dietrick v. Noel, 42 Ohio St. 18, 21 [51 Am. Rep. 788], “actual, open, continuous, hostile and exclusive.”

See, also, McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. Rep. 715], and 1 Cyc. of Law & Procedure 981, where it is said that the possession must be “actual, visible, exclusive, hostile and continued during the time necessary to create a bar under a statute of limitations. ’ ’

The court further charged:

“The burden is upon her to prove the facts necessary to sustain such plea” — of adverse possession — “and to be available must be clearly proved by the greater weight of the evidence and not left to mere conjecture. ”

Again, the court, after saying what constituted adverse possession, says:

“If the defendant has clearly proven this by the greater weight of the evidence, then your finding should be in her favor.”

We think the word “clearly,” as used in these two paragraphs, was calculated to , mislead the jury as to the amount of evidence required of the defendant.

There was no question, under the evidence, that the defendant occupied, possessed and claimed to own a building, a part of which was upon land which she unquestionably owned and which extended over upon and.covered the disputed tract; that the possession, as it now is, of the defendant is such that if this building stands now where it has stood for more than twenty-one years, covering just the same land and no more than it has covered during all that period, then the defense of adverse possession is sustained, and, so far as the length of time that the building has occupied its present position, it was sufficient that the defendant establish it by a preponderancé of the- evidence. We are not prepared to say that the court so far erred in the use of the word “clearly” as would justify a reversal on that account, though the charge would have been better without it.

It follows from what has been said relative to the admission of evidence, that there was error in the charge of the court, that if plaintiff and defendant held from a common source of title, “then the defendant would be estopped from denying title thus derived from a common source,” because, with the evidence excluded which we hold should be excluded, there was no evidence to which this part of the charge could apply.;

It follows, too, that the court should have charged in substance ■as he was asked to do by the defendant in her third request, that,

“If the plaintiff has not derived his chain of title to the land in dispute by a chain of conveyances from the government, or from a grantor proved to have been in possession of the land in dispute when he executed the conveyance therefor, your v„erdiet should be for the •defendant. ’ ’

We find no errors in the record justifying a reversal of the judgment, except such as are pointed out in this opinion, and for the errors so pointed out and for no other, the judgment is reversed and the case remanded to the court of common pleas.

Winch and Henry, JJ„ concur.


text:
    STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    October 29, 1906.]
    Marvin, Winch and Henry, JJ.

      Taylor Emerson v. Forest City Ry.
    City may Consent to Granting or Street Railway Franchise as Owner of Abutting Property.
    An injunction prayed for against an exercise of its franchise along a certain street by a street railway company will not be' granted on the ground that the necessary consents of the owners of a majority of the abutting frontage have not been obtained, the precise ground being, that the city, as owner of a large portion of the frontage in question, may not exercise its privilege as owner of the abutting land and also act as the grantor of the franchise, and that without the city’s consent as landowner, a majority of the frontage has not been obtained. Revised Statutes 3439 (Lan. 5521), as well as Rev. Stat. 1536-185 (Lan. 3764) plainly give the right to consent, to the abutting owners, and the exercise of such a dual capacity by the city is not sufficiently contrary to public policy to warrant the courts in overriding the plain letter of the law.
    [Syllabus approved by the court.]
    Appeal from Cuyahoga common pleas court.
    Squire, Saunders & Dempsey, for plaintiff.
    Garfield, Howe & Westenhaver, for defendant.

       Affirming Emerson v. Railway, 17 Dec. 157.

   HENRY, J.

This is an appeal from the judgment of the common pleas court, denying a permanent injunction against the exercise by the defendar i; of its alleged street railway franchise on East Fourteenth street for want of the necessary majority of abutting owners’ consents. It is admitted that the production of sufficient consents is jurisdictional and. that without them the council is without power to grant a franchise. If the Fourteenth street frontage of the Erie street cemetery property owned by the city is to be included in estimating the total frontage, and if the city’s consent given pursuant to ordinance of its council can be counted to make a majority, then the injunction should be denied.

The sole issue is thus one of law depending upon the construction, of Rev. Stat. 1536-185, 3439 (Lan. 3764, 5521), the latter of which reads,, in part, as follows:

“No such grant shall be made until there is produced to council, or the commissioners, as the case may be, the written consent of the owners-of more than one-half of the feet front of the lots and lands abutting on the street or public way, along which it is proposed to construct such, railway or extension thereof; ’ ’ etc.

And in part of the other section referred to is substantially the same provision. •

The literal reading of these sections is against plaintiff’s contention. But it is urged that since the privilege of abutters to give or withhold their consents is a personal right given to them for their protection, against the granting of the right to operate a street railway in front, of their premises contrary to their desire and interest, it is against, public policy for the city, in its adversary and dual capacity as both landowner and grantor of the franchise, to confer upon itself jurisdiction to act in derogation of their rights.

There is of course a suggestion of anomaly in this situation. Various analogies of action by public officers in dual capacities have been, instanced, but we have found none which precisely meets this situation. It is not easy .to see why the city as landowner should be deprived of the privilege enjoyed by' landowners generally of favoring the establishment of a street railway by giving consent where a street railway is1deemed to be beneficial to the abutting property. And it is apparent that the denial of that privilege might hinder or prevent the establishment of a street railway along a street bordered largely or wholly by property belonging to the city,- and that, too, when ease of access to suck property by the public is peculiarly desirable, as in the. case of city parks.

It is, indeed, conceivably true that the interest of the city as a whole may be favorable to the construction of a street railway along a street where its own and other abutting lands would be depreciated thereby, and that it may thus force the establishment of a street railway against the interests of the owners of abutting private property. But the same argument, in some degree, would lie against the right of any other public corporation, owning abutting city lands, to give or withhold consent to the construction of a city street railway in front of its, property. Yet the right of the federal or state government, or of a county, or school district, in this behalf is, we believe, unchallenged. This privilege being personal to the owners of abutting lands, may be exercised even ■to the manifest detriment of the land itself, if they so please. Can it be doubted that a street railway company may, as owner of abutting lands, yield the decisive consent to the grant of a franchise to itself? It having been decided that consents may be purchased, can it be seriously ■claimed that any abutting owner who refuses to yield his consent can invoke high considerations of public policy against the contrary exercise of the same privilege by any owner, though it be the city itself, upon the ground of biased judgment, impure motive, conflicting duties, or cross interests ? Can supposed public policy of so doubtful a nature operate, to vary the plain letter of the law ? We think not.

Viewing the question from another standpoint and considering the history of this legislation, the rule of majority consents was formerly founded on assessed valuations of abutting property, so that owners of property exempt from taxation had no power to further a street railway project by their consents. When the legislature changed this basis to that of foot frontage, it obviously had this fact in view. It could hardly have escaped attention that the change thus made would affect property owned by the city. Yet the legislature made no exception of city property. If it had expressly conferred upon municipalities the privilege of giving consent in respect of their property abutting on proposed street railway routes, it can hardly be claimed that considerations of public policy would defeat such provision. And the same conclusion results from the reasonable presumption that the legislature must have had in contemplation the plain application and natural meaning in this behalf of the language it did employ.

If abuses arise from the literal interpretation of the law, it is much better that the legislature should amend the law than that the courts by judicial legislation should attempt to do so.

The injunction will be denied, as upon final hearing, and the petition dismissed at the plaintiff’s costs.

Marvin and Winch, JJ., concur.


text:
    DESCENT AND DISTRIBUTION — TRUSTS.
    [Hamilton (1st) Circuit Court,
    February 10, 1906.]
    Swing and Giffen, JJ.
    Charles Bernhardt v. Charles Bernhardt, Admr.
    1. Husband Furnishing Funds bob Purchase of Property Held in Wife’s Name does,' not Create Wife Trustee for Husband and His Heirs.
    Where the title to real estate is in a wife, evidence that the funds for its purchase and improvement were furnished by the husband does not afford ground for declaring that she holds in trust for him and his heirs.
    2. Husband not Relative of Wife within Rev. Stat. 5971 (Lan. R. L. 9510).
    A husband is not a relative of a wife within the meaning of Rev. Stat. 5971 (Lan. R. <L. 9510), and property devised by her to him does not, in the event of his prior death, pass to his children by a former marriage, but goes to the relatives of the wife by blood.
    J. C. Healy and Powell & Smiley, for plaintiff.
    Jacob Shroder and E. C. Reemelin, for defendant.
   GIFFEN, J.

This is an action in partition in which the plaintiff and the defendants, Pbillip Bernhardt, Barbara Ruehlmann, the brothers and sister, and the minor defendants, the children of a deceased brother of Catherine Schaefer, deceased, claim title to certain real estate as her heirs at law; the other defendants, Louis Schaefer and Lizzie Berberich, claim title as children of Ludwig Schaefer, the deceased hnsband of Catherine Schaefer.

Their claim is based: First, npon tbe allegation that the land in question was purchased with funds belonging to Ludwig Schaefer, and the title being vested in Catherine Schaefer, the wife, a resulting trust •was engrafted on the deed absolute; and if this be not found, that the-improvements npon the land were made with funds belonging to Ludwig Schaefer, and that a trust. resulted to the extent of such improvements; second, that Catherine Schaefer, having devised the real estate to her husband, who died prior to the death of the testatrix, they claim as the issue of such devisee, under Rev. Stat. 5971 (Lan. 9510).

While we are of the opinion that by a preponderance of the evidence it is shown that Catherine Schaefer furnished the purchase money for the land, and her hnsband, Ludwig Schaefer, the funds with which, the improvements were made, it may be conceded that all the funds were furnished by tbe hnsband and yet find that the title was in Catherine Schaefer. Counsel seems to assume that having shown that all the money was being furnished by tbe husband, tbe title was necessarily held in trust by the wife.

In the case of Creed v. Bank, 1 Ohio St. 1, the second proposition of the syllabus is as follows:

“When a person purchases property with his own funds, and places the title in the name of a stranger, the legal presumption is, that he made such purchase for his own use, and that the property is held in trust for him.
“But where such purchase and conveyance is made by a man to a member of his own family, the presumption is, that the property is intended as a gift or advancement.”

AVe think the evidence in this ease shows not only that Ludwig Schaefer knew that the conveyance had been made to his wife, but that he intended the title absolute to remain in her.

Revised Statutes 5971 (Lan. 9510), upon which the other claim is based, provides as follows:

“When a devise of real or personal estate is made to any child or other relative of the testator, if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testator, in either ease such issue shall take the estate devised in the same manner as the devisee would have done, if he had survived the testator.”

The argument is, that the husband is a relative of the wife within the meaning of this section, and that the issue of such husband, although not the issue of the testator, take the estate devised in the same manner as the devisee would have done.

It has frequently been held in other states where a like statute exists, that the word “relation” includes only those related by consanguinity. In the case of Cleaver v. Cleaver, 39 Wis. 96, the first, proposition of the syllabus is as follows:

“In Sec. 29, Chap. 97, Rev. Stat. (which provides that ‘when a. devise or legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given’), the word ‘relation’ includes only relations by consanguinity.
“2. The testator’s wife having died before him, a bequest made to her by the will lapsed, although she left issue which survived him. ’ ’
And at page 102 it is said:
“The words of the statute are, ‘child or other relation.’ Nosciiur a sociis. Child or other relation must signify child, or other relation of like character as a child; that is, other relation of the testator’s blood!”

A like construction of similar statutes will be found in Esty v. Clark, 101 Mass. 36 [3 Am. Rep. 320]; Renton, In re, 10 Wash. 533 [39 Pac. 145]; Keniston v. Adams, 80 Me. 290 [14 Atl. Rep. 203].

The statute in this state was construed in the ease of Phillips v. McConica, 59 Ohio St. 1 [51 N. E. Rep. 445; 1 Am. St. Rep. 753], the third proposition of the syllabus being:

“When a legatee dies before the testator, the legacy lapses unless such legatee was a child or other relative of the testator, and left issue surviving the testator as provided in Sec. 5971 [Lan. 9510] Rev. Stat. An adopted child is not such issue. ’ ’

At page 8 the court say:

“The word ‘issue’ in this section means child of the body, or heir of the body, of the deceased relative of the testator, and does not include a child adopted by such decedent. The issue in such case must be of the blood of the testator and of the deceased child or other relative by birth.”

Applying this construction of defendants, Louis Schaefer and Lizzie Berberieh, they are not of the blood of the testator, although the issue of the devisee by a former wife.

It must be admitted, however, that this construction is in conflict with the unreported case of White v. Agnew, 1 O. S. C. D. 644 (38 Bull. 47). But the express construction of a statute which is determinative of the issue in a case is of higher authority than that which is inferred only from the affirmance of a judgment without report.

We are of opinion, therefore, that the defendants, Louis Schaefer and Lizzie Berberich, have failed to show any title to the land, and a decree may be entered accordingly.

Swing, J., concurs.


author: SWING, J.

text:
    INSURANCE.
    [Hamilton (1st) Circuit Court,
    July 15, 1905.]
    Jelke, Swing and Giffen, JJ.
    Michigan Mut. L. Ins. Co. v. Abner L. Whittaker, Admr.
    Concealment of Condition of Health by Applicant fob Insurance, as Disclosed by Consultation with Three Physicians, Fraudulent.
    The concealment by an applicant for life insurance, of the condition of his health, it appearing from the testimony that three physicians had informed him of the serious nature of his malady, one refusing to pass him for insurance, another telling him that he had an organic lesion of the heart, and the third discovering and disclosing to him an enlargement of the spleen, will sustain the defense of fraud in an action on his policy, even though the physician examining him on behalf of the company failed to discover anything .abnormal in the condition of his health.

      Ekrok. to Hamilton common pleas court.
    Robert Ramsey, for plaintiff in error.
    C. W. Baker, for defendant in error.
   SWING, J.

This was an action on two policies of insurance issued by the defendant on the life of John C. Dexter. One policy was for the sum of $5,000 issued July 1, 1901, on an application signed June 20, 1901, and was for a five year term with privilege of renewal without medical examination for another five year 'term.

The other policy was a ten year policy with certain optional bene- . fits as to change of time, and was for $2,000, issued September 10, 1901, on an application signed the same day.

The answer of the defendant admitted the issuing of the policies, and for a defense alleged that the policies were procured by the fraud •of Dexter in misrepresenting to the defendant the state of his health and that he had given untrue answers as to his having made application for insurance and been refused.

The case was tried before a jury and a verdict rendered for the full amount claimed in both policies. Error is prosecuted to this court and the main ground urged is, that the verdict and judgment is not sus-fained by sufficient evidence.

At the time the policies were issued, Dexter was living in Columbia,' Tennessee. He was a lawyer by profession; unmarried, í vid living with his mother. He left Columbia the latter part of October, 1901, and ■came to Cincinnati, and got employment with the Cincinnati Cordage & Paper Company. He died at Cincinnati, April 10, 1902. Dexter died ,very suddenly, and a post-mortem examination by Dr. Haerr disclosed that Dexter’s spleen was of abnormal size. It was about thirteen inches long, and weighed ábout thirteen pounds;. normally it should weigh about seven ounces, and be from six to six and one-half inches long. It was therefore about twenty-six times as large as it should have been. Upon observing the spleen, no further examination of the body was made and death was ascribed to this cause. 1

Some time prior to December 27, 1901, Dexter, who was a member of the fraternal order of B. P. O. E., made application to be admitted to the chapter at Cincinnati. Before admission, he was compelled to submit to an examination by the physician of the order. This physician happened to be the same Dr. Haerr who made the postmortem examination. Dr. Haerr testified that he found in this ex-animation a dullness on one side of his chest; he thought first it was his lung. It seemed to be solid, and was somewhat distended, but which he attributed to an enlargement of the spleen. Dr. Haerr then said to Dexter that he could not pass him as a well man. Dexter said he would not become a charge upon the lodge. The doctor reported to the lodge the result of his examination and statement, of Dexter as to not becoming a charge upon the lodge, and under these circumstances he was admitted to the Cincinnati chapter or lodge on December 27, 1901, ■which he regularly visited up to the time of his death.

Some seven members of this lodge who became acquainted with Dexter after he came to Cincinnati, and who met him mostly at the meetings of the lodge, gave evidence as to • his appearance. Michael Meehan, tyler of the Elks ’ lodge, said he saw him at lodge meetings; was a small man in stature; seemed to .be a delicate looking man; never noticed anything wrong with him, never heard him cough or spit.

William Bodemer testified; was presiding officer of Elks; did not notice anything out of the way with him; never heard him cough.

Burton H. Foster testified that he worked in the cordage company with Dexter, and knew him; said he heard of no illness of Dexter, and never heard him cough.

Several other persons who met him for the first time after he came to Cincinnati, testified in a similar manner. All of this evidence was clearly of no value; if it proved anything, it was, that there was nothing the matter with Dexter during the time that they knew him, whereas the truth of the matter is, without the slightest question, that Dexter died from the effects of diseased condition of his spleen and that his spleen was badly diseased at the time that Dr. Haerr examined him in December, 1901, and evidently had been for a long time prior to that date, as Dr. Haerr found it pressing hard against his lungs, and yet during this time these witnesses testified that they did not see anything out of the way with him. That there was something the matter with him, and of such a serious nature as to cause his death in a short time, is shown. The .only effect of this evidence is to show at the most, that while Dexter was hastening to his death with this deadly disease, his condition was not suggested to his friends in his personal appearance. This evidence could have no value to the plaintiff, but might be against her in this,- that it showed that only those who made careful examination of Dexter were able to discover that he was suffering with a deadly disease.

There was a large amount of evidence introduced on the trial of the-case in the form of depositions taken in Tennessee, where Dexter had resided for a number of years previous to his coming to Cincinnati, and which included some four physicians, besides quite a number of persons who had known Dexter intimately while he lived in Columbia, Tennessee. The testimony of three physicians, Doctors Briggs, Porter and Pillow, was taken by the defense, and the testimony of Dr. Williamson, the examining physician who made the examination upon which the policies of insurance were issued, was taken by the plaintiff.

The testimony of Dr. Briggs, of Nashville, Tennessee, was to the effect that he made a physical examination of Dexter in the spring or early summer of 1901, and found organic disease of the heart; thought him in a very bad condition, and liable to die in a short time; did not tell Dexter the result of his examination, but he did tell his mother. “I told him he had heart disease, and he seemed to be pretty well aware of it. Said he was going to Cincinnati; said he had been examined by Dr. Pillow, and came to me for confirmation. He said that Pillow had told him the same thing.”

Dr. Porter, age 35, lived at Columbia, Tennessee; had known Dexter for fifteen years; belonged to the same lodge of Knights of Pythias; was examining physician for that order in 1901 and up to the present time; testified that Dexter made application to him as examining physician of that order; examined him, in a measure; saw him three times; the first time found his pulse over ninety; his heart with what is called a “stormy” heart, beating unduly, laboring under-difficulties; heart beats rapid between ninety and one hundred; temperature one hundred and one-half, the first time, about the first of May. Told him to come back again. He came back in three or four days. Had the same examination, found an unduly enlarged abdomen. Did not investigate it further, but that was sufficient to stop the investigation.

He had fever on both occasions. About a week afterward, made another examination, but only to take his pulse and temperature. Found two and a half degrees of fever; and pulse accelerated and irritable. I made no further examination, as I knew he would not be accepted. I told him his temperature was elevated, and his heat unduly rapid. I told him it was not worth while for him to come back again. His shoulders were somewhat bent forward; flat chest; and general appearance was that of a man failing in health. A part of the examination was reduced to- writing, and I told him it was hardly worth while to return, that I could not pass him. I never sent his application in.

There is absolutely no evidence in this case that tends to throw any discredit upon the truthfulness of these witnesses’ testimony, unless it be found in the evidence of the plaintiff, or in the fact that Dr. Williamson, who made an examination some months afterwards, found none of these conditions to exist, but when taken in connection with ihe subsequent death of Dexter in less than a year from the time that Dr. Porter made the examination, and the further fact that within less than six months after that time Dr. Haerr, of Cincinnati, found the enlarged abdomen, which was caused by the enlarged spleen from which cause Dexter died, we are forced to the conclusion that this evidence <of Dr. Porter was true, and that there is no evidence to be found in the. record that has any weight which tends to disprove that the result of that examination was that Dexter was not in good health; on the contrary was suffering from an incurable disease; and that Dexter was so informed by Dr. Porter. Therefore, Dexter knew, or at least had evidence that would lead him to believe that he was not in good health. The fact is clearly shown that the result of this examination by Dr. Porter, and the facts communicated to him by Dr. Porter and Dr. Briggs, and the examination of Dr. Pillow, were not communicated to the insurance company at the time he was called upon to make disclosures to it.

Dr. Pillow, age forty-nine, practicing physician twenty-seven years, lived at Columbia all his life; graduated from the University of Pennsylvania; examining physician for the New York Life; Mutual Life; Mutual Benefit of New Jersey; Northwestern, Equitable, and others; was the family physician of Dexter and his mother; testified that he knew Dexter for many years; saw him frequently in 1901, during which time he made an examination of John before he went to the springs. He testified that Dexter had a harrassing cough; that he made a. thorough examination of him, and detected an organic lesion of the heart. Dexter told me he wanted my honest opinion. I told him beyond question he had organic heart lesion, and said-it was sometimes caused by a crowded stomach. That he had been looking bad, and that there was anxiety about his health for some time before I examined him. His mother requested me to examine him. His. general appearance was of one in bad health; not as vigorous as he usually had been.

We see nothing in this evidence to indicate that what Dr. Pillow testified to was not the truth.

There is a great mass of evidence in this case; by friends and associates of Dexter who lived in Columbia, among them being Mr. Hatcher, a lawyer, in whose office Dexter worked for several years. It is not necessary to go over in detail and point out the exact testimony of Mr. Hatcher. Everything indicated that it bears upon its face the marks of honesty and truthfulness, and we fail to discern from the record any reason why Mr. Hatcher should, have testified to anything other than the truth. He had been a friend of Dexter, and evidently Dexter had been a friend of his. He regarded him very highly; aided him in his life; gave him employment and had advanced his interest,, and we see no reason why he should give evidence in this case for any' purpose other than to tell the truth.

. The sum and substance of the fact of the evidence is, that Dexter, in the spring of 1901, was failing; that he looked bad and had all the appearance of one in bad health; that his appearance, to Mr. Hatcher, was just what one would expect it to be from the examination made by Drs. Briggs, Porter and Pillow.

It probably is unnecessary to take up the evidence of other residents and friends of Dexter who lived in Columbia, Tennessee, and review them carefully. It is sufficient to say that they all correspond, and all were of the same effect as tjiat of Mr. Hatcher. From this evidence we take it that these witnesses are among the' leading citizens of Columbia, Tennessee, and there is nothing in the record to show that they were not of men of the highest standing and integrity and truthfulness. Furthermore, there is nothing in the evidence to show that they had any interest in the litigation or that there was any reason why they should not tell the truth. It is true that these witnesses were not before this court, and we had no opportunity of forming any judgment of them from personal observation. But neither were they before the jury, and we have the same right to draw the conclusion from their evidence that the jury had. From a careful reading of the evidence,, we come unhesitatingly to the conclusion that at the time these policies: were written, and before, John Dexter was not in good health and that he was well aware of it. As against this evidence, we have the testimony of his mother, who was the real party in interest in this case.. We do not desire to cast any reflections upon her evidence other tham say that we think from her own evidence it is shown that at this period! she was very much concerned about John’s health. As against this evidence there stands out prominently the testimony of Dr. Williamson, the examining physician who made the examination upon which the policies were issued. His testimony is to the effect that he found nothing wrong with Dexter,; that he found his pulse, temperature, hearty and stomach in a normal condition, or nearly so, at least his condition, was such that he passed him as a fit subject for insurance.

In considering Dr. Williamson’s testimony, it is proper to consider that he hardly stands in the light of a disinterested 'witness, as the correctness of his examination is certainly brought in question by the undisputed fact that Dr. Haerr, within less than three months after that examination, discovered enlarged abdomen and a pressure against the lungs which was caused by the disease that Dexter, within a week, died of.

Dr. Porter testified that he had found that condition to exist before Dr. Williamson made his examination. We are therefore compelled, from the evidence, to find that Dexter was not a sound man at the time these policies were written, that he had every reason to know it, and that he did know it, and that the jury, when they found differently, rendered a verdict which is not sustained by the evidence. The judgment therefore must be reversed, and remanded for further proceedings.

Jelke and Giffen, JJ., concur.


author: WILSON, J.

text:
    DAM AGES — EVIDENCE.
    [Franklin (2nd) Circuit Court,
    January 29, 1906.]
    Wilson, Sullivan and Dustin, JJ.
    Pittsburgh, C. C. & St. L. Ry. v. George M. Boswell.
    Plaintiff Claiming New Injury may not Show that Injury was in Fact an Aggravation of an Old Injury.
    Where, in an action for an injury sustained, plaintiff alleges that the damage resulted from a hernia caused by the accident, and maintains throughout the proof that he did not have hernia before the accident, such pleading of fact is descriptive and must be literally proven, and he may not recover for an aggravation of a hernia shown to have existed prior to the accident, which aggravation was due to the accident complained of. Nor may he, after thus pleading, and claiming that there was no variance between pleading and proof, avail himself of the curative provisions of Rev. Stat. 5294 (Lan. 8806).
    Error to Franklin common pleas court.
    Henderson, Livesay & Burr, for plaintiff in error.
    J. V. Lee and E. M. Murphy, for defendant in error.
   WILSON, J.

The plaintiff below, George M. Boswell, sued to recover damagés as for .the breach of a contract with the Voluntary Relief Department to pay benefits for injury incurred in tbe service of tbe defendant company, plaintiff in error bere.

He averred, “That on the seventh day of May, 1896, be was engaged in raising and jacking up a heavy oak timber in order to fasten it underneath the body of a passenger coach of the defendant, which was placed on trestles, when the jack accidentally gave way and the said timber fell upon plaintiff, knocking him down and spraining .his back, and causing hernia or rupture. ’ ’

By the answer this averment is specifically denied.

Upon the trial of the case there was evidence introduced by the ■defendant that the plaintiff had rupture before the accident, and also evidence that the hernia, when examined after the accident was what is known as complete hernia, while when examined before the accident it had been incomplete.

The contention of the plaintiff, however, throughout the case, both in the pleadings and the evidence, was, that he did not have hernia before the accident.

There is also a conflict of evidence as to whether the character of the accident was such as would cause or aggravate the hernia.

The defendant requested the court to cliarge the jury as follows:

“Plaintiff sues for an alleged injury on account of a sprained back and a left inguinal hernia, which he alleges resulted from an accident occurring to him on May 7, 1896, while in the employ of the defendant •company, and for which accident he claims to be entitled to benefits as a member of the relief department of said company.
“If you find therefore that on the twenty-ninth day of March, 1895, plaintiff was examined for admission to the relief department of the defendant company, and the examining physician then and there found that plaintiff had a left inguinal hernia, and that the hernia was ■and is the same as that complained of by plaintiff as a result of the alleged injury on May 7; 1896, and that said hernia was not the result •of said alleged injury, then I charge you the plaintiff is not entitled to .any damages by reason of the hernia, as aforesaid.”

This charge the court refused to give, charging the jury instead .as follows.

“If you find the fact to be, that plaintiff had a hernia prior to the time of the accident complained of, and ¿hat the hernia which he had prior to-the accident was and is the same hernia of which he claims in his petition, and that such hernia was not the result of an injury received by him as alleged, then the plaintiff is not entitled to any damages by reason of the hernia. But if he had an incomplete hernia before the accident which did not disable him, and the accident caused a worse- or complete hernia which did disable him, then he is entitled to recover damages for such disability, unless he is precluded from recovery upon other grounds.”

It is claimed this is error for which the judgment, which was-for the plaintiff below, should be reversed.

“There are two sorts of allegations:

“The one, of matter of substance, which must be substantially proved; the other, of description, which must be literally proved.” Purcell v. Macnamara, 9 East 160:
“The libel in a cause of collusion pleaded that the default took place in a particúlar manner: Held, that such defaults must be-proved in the manner in which it is alleged in the pleading. It is not enough to establish by evidence that the default was committed in another manner, although the result would be the same on the merits,, as the court will confine its judgment to the issue raised on the pleadings.” Malcomson v. Clayton, 13 Moore P. C. C. 198.

In the opinion in this case just cited Lord Chelmsford states the reason for the rule in the following language:

“Now it is a rule, and a most important rule to be observed in all courts, that a party complaining of an injury and suing for redress must recover only secundum allegata et probata. There is no-hardship or injustice in adhering strictly to the rule against the complainant, for he knows the nature of the wrong for which he seeks a remedy, and can easily state it with precision and accuracy. But great inconvenience could follow to the opposite party unless the strictness was required, because he might constantly be exposed to the disadvantage of having prepared himself to meet one state of facts, and finding' himself suddenly and unexpectedly confronted by a totally different one. ’ ’

The character of the injury for which benefits are claimed under-the contract in this case is matter essentially descriptive, and must be strictly proven. It is alleged to be hernia or rupture. Under such allegations the plaintiff is- not entitled to prove and recover as for-an aggravation of hernia which theretofore existed. The two injuries, may be proved or disproved by a different state of facts and caused by different agencies. The aggravation might result from lapse of time-merely; the hernia could not. Wilkinson v. Steel & Spring Works, 73 Mich. 405 [41 N. W. Rep. 490].

Consequences flowing from the act must be alleged if they do not naturally result therefrom. Stevenson v. Morris, 37 Ohio St. 10, 18.

The charge was prejudicial.

The plaintiff' claiming throughout the proof, that he did not have-rupture before the accident, and that there was no variance between the allegations of-the petition and the proofs, was not entitled under the charge of the court to avail himself of the curative • provisions of Rev. Stat. 5294 (Lan. 8806); Thatcher v. Heisey, 21 Ohio St. 668; Hill v. Road Dist. No. 6 (Supvr.) 10 Ohio St. 621.

It follows, there is error in the refusal to charge as requested, and error in the charge as given. Also that the verdict and judgment are against the weight of the evidence. It is fairly proven that the hernia existed before the accident.

We find no other error in the record.

The judgment will be reversed and cause remanded for new trial.

Sullivan and Dustin, JJ., concur.


text:
    TAXATION.
    [Cuyahoga (8th) Circuit Court,
    December 1, 1905.]
    Marvin, Winch and Henry, JJ.
    State ex rel. J. A. Smith, Tr. v. Robert Wright, Aud.
    Taxation — Ownek of Destroyed Building may Compel Auditor to Remove same-from Duplicate.
    An owner of a building which he himself has torn down is entitled, under Rev. Stat. 1038a (Lan. 2379), to have the county auditor deduct from-the tax duplicate the value of such building at any time between the-second day of April and the first day of October as provided in the statute. This statute does not violate the provisions of Sec. 2, Art. 12 Const., as to uniformity of rates of taxation.
    [Syllabus approved by the court.]
    MANDAMUS.
    Smith, Taft & Arter, for plaintiff.
    C. W. Stage, Z. T. Armstrong and J. L. Cannon, for defendant.
   MARVIN, J.

(Orally.)

This is a proceeding in mandamus brought by Smith, praying that a writ issue from this court commanding and directing the auditor to deduct from a certain tax list a. valuation of a certain building which was destroyed after April 2, 1905.

The petition sets out all the facts necessary to entitle the plaintiff to this reduction of the tax duplicate as provided in Rev. Stat. 1038a (Lan. 2379), if that statute is to govern. The statute, is,

“The county auditor shall, whenever a-fter the second Monday in April, and before the first day of October in any year, it is made to appear by the oath of the owner, or one of the owners of any building or structure, and by the affidavit of two disinterested persons, resident of the city or township in which such building or structure is, or was, situate, that such building or structure has been injured or destroyed by fire, flood, tornado or otherwise, since the second Monday in April of the current year, deduct from the tax list and duplicate, the value of such buildings or structures, or such part of the value thereof as shall correspond to the extent of such injury.”

Here the destruction was done by the relator. He tore down and destroyed a building on certain premises between the second Monday in April and the first day in October. The taxes on such building amounted to $135.68. It is said that the statute hereinbefore quoted is in violation of Sec. 2, Art. 12 of the constitution of Ohio, which provides that,

“Laws shall be passed, taxing by a. uniform rule, all * * * real and personal property according to its true value in money.”

It is urged that to permit one to have a deduction by reason of the destruction of the property and covering • this period of time from the second Monday in April to the first day of October is to grant a special privilege to one who, during that entire six months, may have had the benefit and the income from such building, and it is said that the fixing of the dates is arbitrary, but Rev. Stat. 2838 (Lan. 4298) fixes the date of the lien for taxes as the second Monday in April.

Revised Statutes 1042 (Lan. 2383) fixes the time for the delivering of the tax duplicates by the auditor to th^ treasurer as the first day of October, so that the dates fixed in this statute are fixed evidently because of the time when the lien attaches and the time when the duplicate is co be delivered to the treasurer.

Similar provisions are made as to the deduction by the board of equalization of destroyed personal property, by Rev. Stat. 2807 (Lan. 4214).

Notwithstanding this provision of the constitution and the provision of the statute, Rev. Stat. 2731 (Lan. 4034) that, “All property whether real or personal in this state, and whether belonging to individuals or corporations; and'all moneys, credits, investments in bonds, stocks, or otherwise,” etc., “shall be entered on the list of taxable property as-prescribed in this title,” and provides for the taxation of such property except that which may be specifically exempted, ■exemption laws in reference to taxation have been recognized in ■Ohio ever since the adoption of the present constitution, and long before, and yet the provision of the constitution is that,

“Laws shall be passed taxing by a uniform rule, all * * * real .and personal property according to its true value in money.”

It is manifest that the policy of this state has been to allow certain property to be exempted.

In the ease of Chisholm v. Shields, 67 Ohio St. 374 [66 N. E. Rep. 93], it was held that a provision by which the widow of Chisholm was to have a large income during the period of her life from the time of his death (a provision by will) that there could be no taxing of that income notwithstanding that it was a very valuable thing.

Cooley, Taxation 1378, under the head “Abatement of Taxes,” speaks of the fact that certain property is exempt from taxation without violating the spirit of .the constitution, which provides that all property shall be taxed.

Is this statute unreasonable? It would sometimes relieve one from paying taxes on property from which he has had an income during a part of the year; though notwithstanding that, it is not to us so unreasonable as would justify us, in the absence of the holding of any higher court, or any court as far as we know, that the statute is either unreasonable or ambiguous. ¥e do not find it is either. We hold, therefore, that the prayer of the petition should be granted. Judgment will be entered accordingly.

Winch and Henry, JJ., concur.