author: SAYRE, J.

text:
    ADOPTION — CONTRACT.
    [Hocking (4th) Court of Appeals,
    February 25, 1916.]
    Sayre, Merriman and Walters, JJ.
    Della Snyder v. May Shuttleworth, et al.
    Contract to Adopt Child with Power to Inherit Enforceable.
    A written contract, entered into by the parent of an infant child with strangers, by the terms of which the latter agreed to adopt such child, perform the duties and obligations of parents to such child, and further agreed that such child should inherit from each all property which she would be entitled to inherit if she were their own child, will be specifically enforced, by requiring the person to whom the legal title has descended to convey the property in accordance with the terms of the contract, when such contract has been fully performed on the part of such child.
    [Syllabus by the court.]
    Error.
    John W. Dennis filed his petition in the court of common pleas, stating that on January 27, 1881, he married Margaret A. Hartley, who died October 17, 1906, seized of 73.6 acres, more or less, of land in Hocking county, Ohio. The prayer was for dower.
    By leave of court Della Snyder filed an answer and cross petition, and later an amended cross petition which, omitting ■the formal parts, reads as follows:
    “On or about the 15th day of June A. D. 1874, one James Lanning, the father of this answering defendant, duly entered into a written agreement with John J. Dennis and Eliza A. Dennis, his wife, wherein and whereby it was mutually agreed by and between the said parties, that said James Lanning, who was then a widower, should, and by the terms of said agreement did, give, grant and surrender unto the said John J. Dennis and Eliza A. Dennis his infant daughter, this answering defendant, then about the age of two years.
    “That such grant and surrender was made for the sole purpose of having his said infant daughter, Della Lanning, adopted by the said John J. Dennis and Eliza A. Dennis according to law.
    “And in consideration thereof the said John J. Dennis and Eliza A. Dennis promised, covenanted and agreed with the said James Lanning, that upon the execution of said contract to legally adopt said infant child Della Lanning, now Della Snyder, and would accept the rights and perform the duties and obligations of a parent to said child, and that said child should in all respects be to them and each of them as that of a child born in lawful wedlock.
    “That said child should inherit by law from each of them any and all property to which she would be entitled to inherit if she were the legitimaté child of the said John J. Dennis and Eliza A. Dennis, his wife, or either of them.
    “This defendant avers that said James Lanning, who is now deceased, and this defendant duly performed all the agreements and covenants of said contract on their part to be performed. That he duly surrendered his said infant child to said John J. Dennis and Eliza A. Dennis, who thereafter claimed, demanded and received all her services from said June 15, 1874, until December 24, 1891.
    “This defendant avers that upon her surrender by her father, James Lanning as aforesaid, that she was by the said John J. Dennis and Eliza A. Dennis taken to their home, where she remained continuously until December 24, 1891. when she was by and with the’ consent of said John J. Dennis and Eliza A. Dennis married and left their home.
    “That from said June 15, .1874, until December 24, 1891, she duly performed all the terms, conditions and covenants of the said agreement under their command, performing household and kitchen work, and for a large part of the time working in the fields on their farm, performing' the labor of a man. That for more than sixteen years she worked for the said John J. Dennis and Eliza A. Dennis under their orders and demands and by virtue of the- terms of said contract, and received no compensation therefor except her boarding and clothing.
    “This defendant further avers that said John J. Dennis and Eliza A. Dennis did not perform their part of said agreement in this, to wit: they did not cause said Della Lanning to be adopted as their child according to law; nor they or either of them, by will or otherwise, provided for said child so that she would, or could, inherit or receive in any other manner the property to which she would have been entitled to inherit if she were the legitimate child of said John J. Dennis and Eliza A. Dennis.
    “This defendant further says that on March 8th, 1902, said John J. Dennis died intestate, leaving the plaintiff, John W. Dennis, his only child and heir at law. That on December 30, 1903, the said Eliza A. Dennis died intestate, leaving Margaret A. Dennis, wife of said John "W. Dennis, her only child and heir at law. That on October 17th, 1906, the said Margaret A. Dennis died intestate, leaving the defendant,. May Shuttleworth, intermarried with the defendant, Hugh C. Shut-tleworth, her only child and heir at law.
    ‘ ‘ That said Eliza A. Dennis died seized in fee simple of the premises in the petition described, together with some other lands now disposed of. That said lands descended to her daughter, Margaret A. Dlennis, subject to the rights of this defendant therein.
    ‘ ‘ That said Margaret A. Dennis died seized of the premises in the petition described but subject to the rights and interest of this defendant therein. That subject thereto the said lands descended to the said defendant, May Shuttleworth.
    “That the defendant, May Shuttleworth, has ever since October 17, 1906, received all of the rents, issues and profits from the said lands.
    “That said contract has been lost or destroyed, and for that reason she can not attach a copy to this pleading. That she did not know the terms and conditions of said contract and her legal rights thereunder until within two years prior to the filing of her answer and cross petition herein * *
    A general demurrer to the amended cross petition was sustained.

      John C. Pettit and G W. McCleary, for plaintiff in error.

      Tom O. Crossin, for defendants in error.
   SAYRE, J.

There is presented for determination the question, whether a written contract, entered into by the parent of an infant child with strangers, by the terms of which the latter agreed to adopt such child, perform the duties and obligations of a parent to such child, and further agreed that such child should inherit from each all property which she would inherit if she were their own child, will be specifically enforced when fully performed on the part of such child.

This question is discussed, but left undecided, in Shahan v. Swan, 48 Ohio St. 25, 31, 32 [26 N. E. Rep. 222; 29 Am. St. Rep. 517]. The question was not presented in that case because the contract there under consideration was a parol contract.

The case of Schwartz v. Steel, 4 Circ. Dec. 321 (8 R. 154), which was reversed in Steel v. Swartz, 55 Ohio St. 685, on the authority of Shahan v. Swan, supra, was also founded upon an oral contract.

There was introduced in that case — Schwarts v. Steel — the record of a proceeding in the probate court, by which the parties who had agreed to adopt the child undertook to carry out that agreement when the latter was 21 years of age. But this record, which consisted of a petition signed by Carnahan and wife, “disclosing their intention to make Sarah Ann their heir,” and her consent thereto, and the journal entry of the adoption which had been placed upon the records of the probate court, would fail utterly to show that Carnahan and wife, when Sarah Ann was 2 years old, had proposed to adopt her as their own and make her their heir. In other words, this record wholly fails to show a written contract for adoption made with the Carna-hans when Sarah Ann was' a child, and the contract proven was an oral one, which brought the ease within the rule of Shahan v. Sufan.

S-o the question for our consideration has never been decided in Ohio so' far as shown by reported decisions.

In many jurisdictions an oral contract of this character, when fully performed on the part of the person for whose benefit the contract was made, will be specifically enforced. Written contracts were specifically enforced in the following eases: Chehak v. Battles, 133 Ia. 107 [110 N. W. Rep. 330; 8 L. R. A. (N. S.) 1130]; Sharkey v. McDermott, 91 Mo. 648 [4 S. W. Rep. 107]; Winne v. Winne, 166 N. Y. 263 [59 N. E. Rep. 832; 82 Am. St. Rep. 647; Burns v. Smith, 21 Mont. 251 [53 Pac. Rep. 742; [69 Am. St. Rep. 653]; Fiske v. Lawton, 124 Minn. 85 [144 N. W. Rep. 455]; Anderson v. Anderson, 75 Kan. 117 [88 Pac. Rep. 743; 9 L. R. A. (N. S.) 229]; Starnes v. Hatcher, 121 Tenn. 330 [117 S. W. Rep. 219], In these cases many objections raised to the power and right of a court of equity to decree specific performance have been considered, and it is unnecessary to repeat what is therein reported.

In Starnes v. Hatcher, supra, the opinion, p. 221, says this:

“Unquestionably, so far as the contract contemplated fixing a status for these complainants as heirs by statutory adoption, this now can not be done. By the death of Starnes, who failed during life to comply with his obligation to adopt these parties, it is made impossible for the courts to do what he should have done in this regard. But it does not follow from this that the complainants are to be cut off from all relief. As we have seen, his agreement was not only to adopt, but to leave these parties at his death his estate. Thus it covered two different duties, which he obligated himself to discharge. These were as distinct in character as if he had bound himself in a strictly legal manner, upon a valuable consideration, to convey two tracts of land to another. To a bill to enforce specific performance of such contract he would not be permitted to repel one seeking its enforcement upon the ground that, subsequent to the contraét, he had incapacitated himself from a performance of it in its entirety by selling to a third party one of the tracts covered by his covenant. In such case, upon the election of the complainant, relief would be granted, at least to the extent of the tract remaining unsold. Story Eq. Jurisp. Sec. 779 * #

So in the case under consideration John J. Dennis and Eliza A. Dennis having agreed to adopt Della Snyder (then Lan-ning), and having agreed that she should inherit any and all property to which she would be entitled if she were their child, there is no reason, since the contract can not be enforced as to the matter of adoption, why it should not be enforced as to the property.

Now the contract does not bind John J. Dennis and Eliza A. Dennis to leave their property so that Della would inherit anything from them. The contract only requires that she shall inherit such property as she would be entitled to inherit if she were their child. She was to be treated, so far as the property was concerned, as they would or might treat one of their own children. Eliza A. Dennis and her husband could have devised all their property, or conveyed it by deed, to some other person and Della would not have had any redress whatever. Pemberton v. Perrin, 94 Neb. 718 [144 N. W. Rep. 164]; Doppmann v. Doppmann, 114 N. Y. Supp. 620; 122 N. Y. Supp., 1126; Crawford v. Wilson, 139 Ga. 654 [78 S. E. Rep. 30]. If Eliza A. Dennis had devised or conveyed by deed all her property to Margaret A. Dennis, Della Snyder would have been like any other child who is disinherited, because a parent may dispose of Ms property by will or deed without regard to his children.

But the property was not conveyed by deed or devised. It was left to pass by law, and the legal title has descended to May Shuttleworth. If Della had been adopted, as agreed, she would now have been the owner of the undivided one-half of the premises described in the petition. Eliza A. Dennis and her husband have, therefore, failed to comply with their contract, although De'lla has fully complied with hers. Since the property has passed under the statute of descent Della is entitled to be treated, so far as this property is concerned, as if she were the child of Eliza A.. Dennis. Della Snyder did not inherit the property. She is not an heir of Eliza A. Dennis. Her rights in the premises are lodged in the written contract of 1874, fully performed by her.

In Emery v. Darling, 50 Ohio St. 160 [33 N. E. Rep. 715], the contract was that the property should pass by will, and it was held that at the death of the promissor the promissee was the equitable owner of the same.

In the instant case the property is to pass by means of adoption. In each case the person making the promise failed to comply with its terms. In each case the property passed by descent. If, after the property passed by descent in the one case, the person to whom the promise was made became the equitable owner thereof, no reason can be assigned why the person to whom the promise was made in the other did not become the equitable owner of the property in controversy.

The contract is in writing, and hence does not conflict with the statute of frauds. The title to an undivided one-half of the premises described in the petition descended to Margaret A. Dennis in trust for Della Snyder, and then on the death of Margaret A. it descended to May Shuttleworth in trust for Della Snyder. There is no obstacle to a specific performance, and it is only justice that, after her father released her to a stranger and gave up the society of his daughter, according to the contract of 1874, and after Della has fully completed the same, she should now be decreed what it was agreed she should have when the contract was made.

The demurrer to the amended cross petition should have been overruled. The judgment will be reversed and remanded for further proceedings.

Walters and Merriman, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    COURTS — PUBLIC UTILITIES — RAILWAYS.
    [Ross (4th) Court of Appeals,
    February 29, 1916.]
    Sayre, Merriman and Walters, JJ.
    Chillicothe Elec. Ry. L. & P. Co. v. Norfolk & Western Ry. et al.
    1. Jurisdiction of Public Utilities Commission to Order Railroad Crossing Gates.
    By the provisions of Sec. 688 the Public Utilities Commission has authority to order the erection of a gate where the tracks of a railroad cross a public street at grade, but such gate can only be lawfully ordered erected at such crossing.
    2. Presumption that Order of Public Utilities Commission Regard Railway Crossing Gates is Obeyed.
    Such commission, being an administrative body, is presumed to know whether its order has been obeyed, and in the absence of a suit by it to enforce such order the courts will presume that in the opinion of the commission its order has been obeyed.

      3. Neither Common Pleas nor Courts of Appeals have Jurisdiction to Enjoin Location of Crossing Gates to Enforce Order of Public Utilities Commission. -
    When the commission has ordered a gate placed at such crossing and it has taken ni> steps under the provisions of Sec. 614-67 (Sec. 70) to enforce such order the courts will conclude that in the opinion of the commission the gate has been located at the crossing and that such location of the gate is the order of the commission, and hence the provisions of Sec. 649 (Sec. 38) 103 O. L. 816, divest the court of common pleas and the court of appeals of jurisdiction to restrain the erection of such gate at such location on the ground that the gate was not located at the crossing.
    [Syllabus by the court.]
    Appeal.

      L. B. Yaple and John P. Phillips, for plaintiff.

      Henry Bamion and Lyle 8. Evans, for defendants.
   SAYRE, J.

The plaintiff brought suit in the court of common pleas, seeking an injunction, to restrain the defendants from erecting a gate on East Main street in the city of Chillieothe, Ohio, at the intersection of such street and the track of the defendant, Norfolk & Western Railway Company. The railway company was undertaking to carry out an order made by the Public Utilities Commission of Ohio, directing it to erect a gate at such crossing.

Main street in Chillieothe runs east and west. The railroad tracks crossing such street are so located that if each end of the gate was placed the same distance from the rail farthest west and parallel to it, the gate would extend in a northwesterly and southeasterly direction. The railway company, for supposed convenience and safety to teams and automobiles using Main street, located the end of the gate on the north side of the street about seven feet west of the west rail and the south end about seventy feet west of such rail so that the gate would stand on a north and south line or at right angles to the sides of Main street.

The plaintiff operates a street railroad in Chillieothe and its east bound cars on Main street are brought to a stop very near the railroad tracks, but do not cross the same. The railroad station used jointly by the Baltimore & Ohio Southwestern and Norfolk & Western Companies is southeast of the place where the tracks cross Main street, and if the gate in question was located parallel with the west rail of the tracks, as above described, the ears of- the plaintiff can approach so near the railroad tracks that passengers alighting at the station can see such cars; but if the gate was placed at right angles to the sides of Main street, as above described, the cars must stop farther west and can not be seen by passengers when alighting at the station; and it is claimed by the plaintiff that because passengers can not see its ears at that time they take other means of conveyance into the city of Chillieothe and thus the plaintiff loses a large amount of traffic.

The plaintiff brought this action for an injunction on the ground that the order of the Public Utilities Commission was not being obeyed, in that the gate was not being erected at the crossing. The order of the commission directs that the gate be placed at the crossing. The defendants claim that the gate was being erected at the crossing. Defendants claim they were obeying the' order of the commission. Plaintiff claims they were disobeying it.

Section 614-67 (Sec. 70) provides that:

“Whenever the commission shall be of the opinion that any public utility or railroad has failed, omitted or neglected to obey any order made with respect thereto, or is about to fail or neglect so to do, or is permitting anything, or about to permit anything contrary to, or in violation of law, or an order of the commission, duly authorized under the provisions of this act, the attorney-general, upon the request of the commission, shall commence and prosecute such action, actions, or proceedings in mandamus or by injunction in the name of the state, as may be directed by the commission, against such public utility or railroad, alleging the violation complained of and praying for proper relief, and in such case the court may make such order as may be proper in the premises. ’ ’

By the provisions of this section the commission has a complete remedy to enforce its orders, and we conclude that this is the exclusive remedy for enforcing the orders of the commission. No other person or persons can maintain a suit to enforce such order on the theory that an order of the commission has not been obeyed.

The commission being an administrative body, it is its business to know whether its order has been obeyed, and so long as the commission takes no steps to enforce its order the courts must conclude that in the opinion of the commission its order is being or has been obeyed.

Section 549 (Sec. 38) 103 O. L. 816, provides:

“No court other than the Supreme Court shall have power to review, suspend or delay any order made by the commission or enjoin, restrain or interfere with the commission or any member thereof in the performance of official duties # *

Plaintiff' contention is that it is not, by this suit, seeking to delay any order made by the commission or to enjoin, restrain or interfere with the commission in its official duties, but rather that it is aiding the commission in the performance of its duties by seeking to enjoin the disobedience of the order of the commission because it claims the defendants are not erecting the gate at the crossing where the commission ordered the gate to be erected.

But it is clear that if the gate is located where the commission intends it shall be located then such location is the order of the commission.

The court will presume under all circumstances, except in case the commission brings an action to enforce its order, that in the opinion of the commission the order is being obeyed and that where an order issued by the commission is being executed that such execution is in accordance with the order and direction of the commission.

The court therefore concludes that the location of the gate at right angles to the sides of Main street, as above described, is in accordance with the order of the commission and that such location is its order.

It is clear then, if we are free from error in the conclusion reached, that neither the court of common pleas nor the court of appeals has any power to entertain the present suit, and that each is wholly without jurisdiction in the premises.

The petition will therefore be dismissed.

Walters and Merriman, JJ., concur.


author: HENRY, J.

text:
    LANDLORD AND TENANT;
    [Summit (8th) Circuit Court,
    October 11, 1909.]
    Marvin, Winch and Henry, JJ.
    Sarah A. Dawson v. Frank A. Seiberling.
    Landlord not Liable to Tenant Injured Through Her Own Negligence.
    A tenant of part of a building can not recover damages against her landlord for personal injuries received by her from the falling over upon her of a heavy "radiator standing unfastened to anything in a common hallway of the building, where the evidence points more strongly to her own negligence than to any other cause of the accident.
    Error.

      Musser, Kimber & Huffman, for plaintiff in error.

      Slabaugh, Seiberling & Huber, for defendant in error.
   HENRY, J.

The plaintiff in error rented lodgings in the building of the defendant in error. She left her apartment and came out into the common hallway, the control or custody of which the defendant retained, and attempted to shut the front door in order to bar out a dog which annoyed her by barking and running in and out of her apartment. A radiator weighing about 200 pounds stood on the floor back of the open door; it was three or four feet high and one foot broad at its base; it was not fastened to the floor or wall. The door was sometimes held open by a brick. After the .accident it appeared that someone had tied it open by a cord attached to the knob and to the radiator, at least the broken parts of such cord were found after the accident, one part tied to the knob and the other part to the radiator. Somehow the radiator fell over while the plaintiff in error was trying to move the obstruction, whatever it was, and her ankle was caught and crushed thereunder. A verdict for the defendant below (defendant in error here) was directed at the close of plaintiff’s evidence. We think there was no error in this ruling. The plaintiff in error wishes us to take the view that the radiator was so dangerous a thing, when left standing upon its base unfastened, as to make the question of negligence in so leaving it a matter for the jury to decide, particularly in view of the possibility that the door knob might somehow engage with it in such a manner as to pull it oyer when the door was closed. We do not take this view. A radiator of this description is not in so unstable equilibrium as to fall over without some force being exerted to push or pull it over and the possibility of the knob of the door engaging with the radiator, or the door itself, when open, pushing it over against the wall in such manner that when the door was closed it would not merely recover its upright position, but balance over in the opposite direction, and so fall to the floor, is a speculation too remote to require submission to a jury. Moreover it is reasonably evident that the plaintiff in error, supposing that the door was obstructed by a brick on the floor, when in fact it was tied to the radiator, exerted such force in trying to shut the door as to pull the radiator over. This, at least, seems to us to be the most reasonable supposition from the evidence.

It does not appear that the defendant in error was in any way responsible for the door being thus tied, if it was tied. The judgment below is affirmed.

Marvin and Winch, JJ., concur.


author:
CARPENTER, J.
      GRANT, J.,

text:
    COURTS — MANDAMUS—OFFICE AND OFFICERS.
    [Cuyahoga (8th) Court of Appeals,
    October 11, 1915.]
    Heals, Grant and Carpenter, JJ.
    W. H. McGannon v. State ex rel W. H. Dennis.
    1. Proper Test as to Whether Official Duties are Discretionary or Ministerial.
    When an official duty does not belong inherently to the office itself, but may be devolved upon some other officer to perform, it is ministerial and its performance may be required by mandamus.

      2. Mandamus Lies to Compel Issuing of Warrants by Municipal Court Judge.
    The duty assigned by statute to a municipal court judge oí issuing warrants, where the complaint and affidavits are sufficient, is ministerial and one which may be controlled by judicial power, and mandamus lies to compel the issuing of such warrants.
    ERROR.

      J. N. Stockwell, for plaintiff in error.

      A. T. Holmes, for defendants in error.
   CARPENTER, J.

It is admitted in this ease that the complaint and affidavits required by law for the issuance of a warrant for the arrest of the person accused were sufficient in every respect, and that said chief justice, the plaintiff in error, refused and still refuses to issue or cause to be issued the necessary process or warrants for the arrest of the persons accused in said complaint and affidavits.

Whereupon the relators having demanded the prosecuting attorney to take the steps necessary to bring the person so complained of before the criminal branch of the municipal court of Cleveland for trial on said complaint, and said prosecuting attorney having refused said request, filed his petition in common pleas court for a writ of mandamus to issue compelling said chief justice to issue or cause to be issued warrants for the arrest of said accused persons. A demurrer to the petition was filed, and upon hearing was overruled, to which ruling plaintiff in error excepted, and now asks this court to reverse said ruling.

In the case of State v. Chaset 5 Ohio St., 529, the distinguished judge in his opinion at page 534 says:

‘ ‘ Under our system of government no officer is placed above the restraining authority of the law, which is truly said to be universal in its behests — all paying it homage, the least as feeling its care, and the greatest as not exempt from its power. And it is only where the law has authorized it, that the restraining power of one of these co-ordinate departments can be brought to operate as a check upon one of the others. The judicial power can not interpose and direct in regard to the performances of an official act which rests in the discretion of any officer, whether executive, legislative or judicial. It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined.

In the celebrated case of Marbury v. Madison, 5 U. S. (1 Cranch) 137, Justice Marshall says, p. 166:

“In eases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than their acts are only politically examinable. But where a specific duty is assigned by law and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. ’ ’

And on page 166:

“The acts of such an officer as an officer can never be examinable by the courts.- But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts, he is so far the officer of the law; is amenable to the laws for his conduct, and can not at his discretion sport away the vested rights of others. ’ ’

Again, in the case of State v. Chase, supra, the question was whether Chase, as governor, should be compelled by order of the court to issue his proclamation that a branch of the State Bank of Ohio was authorized to commence and carry on the banking business in Cincinnati. The statute required that if the secretary, upon the requisite examination, report a statement that the company has complied with the provisions of the law and is lawfully entitled to commence the business of banking, the same shall be certified to the governor, who shall, if he be satisfied that the law has in all respects been complied with, issue his proclamation. The governor having refused to act, suit in mandamus was instituted. The court held that such .duty was a ministerial act, for the reason that its performance was not a part of the inherent nature of the authority in regard to many of his duties as governor, but might have been devolved on another officer of the state.

And this is the true criterion in mandamus: Does the duty belong inherently to the office itself, so that it can not be relegated to some other officer to perform? By applying this test, we are able to discriminate between duties which are discretionary and those ministerial, and which lie at the very foundation and fix the distinction between duties of a peremptory or mandatory nature, and those which are discretionary in their character involving the exercise of some degree of judgment on the part of the officer against whom the mandamus is sought.

To constitute a ministerial act it does not follow that the officer may not exercise his judgment, but the duties must be so clear and specific that no element of discretion is left in their performance. Even so, an officer who refuses to act, for example. refuses to try a suit properly in his court, may be compelled to perform that duty and exercise his discretion, but not be controlled in its exercise. This is evident from the case of State v. Chase, supra, where he was compelled by the statute to investigate and examine until he should be satisfied, that the law has, in all respects, been complied with. It required the exercise of the governor’s judgment whether the statute had been complied with. It was a duty cast upon him outside of his inherent duties, and therefore could have been performed by any other officer.

Applying these principles to the facts of the case at bar, Judge MeGannon was elected by the people to perform those duties which inherently belong to the office of any judge of the court constituted for the trial of causes. It is clear that the duty assigned to him by the statute to issue warrants is not one of those which may, from the nature of his authority, give him a discretion which can not be controlled by judicial power. And it is not one that can not be devolved on any other proper officer of that court. Therefore it became and was a ministerial act which he was asked to perform, and his refusal to perform it warranted the institution of this suit to compel Mm to issue the processes asked for.

The demurrer was properly overruled, and the judgment of the common pleas court is affirmed.

GRANT, J.,

dissenting.

I concur in the judgment of affirmance in this case. I dissent from the reasoning upon which, as to its material consideration, that judgment purports to proceed.

In the opinion read as that of the court, if it is comprehended, the thing which the affirmed judgment complies the respondent to do, is the performance of a ministerial act, to-wit: the act of issuing the warrant asked far.

I do not so understand the law.

In my opinion, when the affidavit preliminary to a warrant is presented to the magistrate — in this ease the respondent — his function thereupon is to examine the paper, and if upon such inspection he finds that it alleges a crime, he is to issue the warrant, of course and in sequence.

The duty thus cast upon him, the duty of inspecting and considering the affidavit for the single purpose of determining whether it states an offense, is a judicial duty. It requires the exercise of discretion — this examination of a paper to see if on its face it charges a violation of the statute.

How the discretion shall be exercised as to finding the paper sufficient or insufficient in the respect named, is not a thing that a court can by mandamus compel. That is to say, the exercise of the discretion can not be coerced by mandamus in one way or another. And it can not be so compelled because it is a judicial and not a ministerial act.

The writ allowed below and there made peremptory by the judgment under review, and by us here affirmed, proceeded, not on the ground that the respondent had exercised the discretion lodged with him, wrongly, but upon the quite apparent fact that he had not exercised it at all. From the record it is too plain for dispute that the refusal to issue the warrant was not because the affidavit was insufficient on its face and did not charge a crime, but because the magistrate substituted for the affidavit his own independent and individual fiat that the writ should not issue at all. If in reaching that conclusion he re-j sorted to knowledge dehors the affidavit, his act in so doing falls! under the same condemnation. That is not exercising jurisdic-] tion; it is ignoring entirely the duty to exercise it. The iseu-ing of the writ at least is of course a mere clerical, and thére-fore a ministerial act. But discretion, in tbe way I have tried here to make plain, must precede it. While the effect to which judicial discretion shall be exercised can not be controlled by-mandamus, mandamus may compel it to be exercised. If the law confers jurisdiction upon a magistrate, he must take it when it is properly invoked. An examination of the affidavit in this case was the first step in the discretion of jurisdiction, and that step the respondent refused to take. Our affirmance of the judgment below says to him that he must take it, under the compulsion of a writ of mandamus. But, saying that does not say that we say it because the thing commanded is a ministerial act, as I think.

Apprehending that if we put our judgment on mistaken ground, and if hereafter it is undertaken to be drawn in precedent, it will tend to confusion and may operate mischievously, I deem myself guilty of no impropriety in here registering my dissent from the basic view of the opinion filed by my brethren.

That mandamus- will lie to compel discretion to be exercised, one way or another, is, I think, clearly held in State v. Smith, 69 Ohio St., 196 [68 N. E. Rep. 1044]. There the court say that “mandamus is allowed, not to control discretion, but to compel its exercise.”

Meals, J., concurs.


author:
GORMAN, J.
      Jones, E. H., J.,

text:
    ERROR-TRIAL.
    [Hamilton (1st) Court of Appeals,
    May 3, 1915.]
    Jones, Jones and Gorman, JJ.
    Cincinnati Car Co. v. Chris Snyder.
    1. Motion for Withdraws! of Juror and Continuance not Final Order.
    The withdrawal of a juror and granting of a motion to continue the cause, after a motion to instruct the jury to return a verdict for the defendant had been argued in part but before it had been submitted to the court or any intimation had been given as to what its decision would be, is not an order affecting a substantial right, and a proceeding in error based thereon does not lie.

      2. Right to Dismiss without Prejudice Exists up to Final Submission.
    The right to dismiss without prejudice exists up to final submission of the cause to the court or jury, and dismissal at the time it was granted in the present case was within the discretion of the court, and was not prejudicial to the rights of the defendant whose motion for an instructed verdict was as yet undetermined.
    Error.

      George H. Warrington and Robert S. Marx, for plaintiff in error.

      Littleford, James, Ballard & Frost, for defendant in error.
   GORMAN, J.

This was an action to recover damages for personal injuries claimed by defendant in error to have been sustained by reason of the negligent acts of Ms employer, the plaintiff in error. On the trial in the court of common pleas, at the' close of plaintiff’s evidence and when he had rested his case, the defendant moved the court to instruct the jury to return a verdict for defendant; and after the motion had been partly argued and before the court had announced any decision thereon, plaintiff moved that a juror be withdrawn and the cause be continued, which motion was granted, to which action of the court defendant excepted.

Thereupon an entry was made upon the journal ordering a juror to be withdrawn and the cause continued at the cost of the plaintiff. To all of which the defendant excepted. The jury was discharged from further consideration of the cause. The motion to instruct the jury to return a verdict for defendant was never disposed of. Within three days a motion was filed by the defendant to set aside this continuance and for a judgment on the pleadings and the evidence. This motion, so far as appears from the record, has never been passed upon.

A bill of exceptions was taken and filed, embodying all the evidence adduced; and it appears from statements in the bill of exceptions that all the jurors, the parties and their counsel, were present and able to proceed with the hearing of the cause when the court withdrew a juror and continued the case; •that defendant did not consent to this action of the court, but objected and excepted thereto, and insisted upon the court passing upon the motion to instruct the jury to return a verdict in its favor, and that it was ready, and willing, and anxious to proceed with the hearing of the cause if the motion should be overruled.

On April 3, 1914, four and one-half months after the date of the entry withdrawing a juror and continuing the case, plaintiff on his own motion and by leave of court voluntarily dismissed his action, without prejudice, at his own costs. To all of which the defendant excepted.

This is the last entry on the journal.

The bill of exceptions, original papers and a transcript of the docket and journal entries are filed in this court with a petition in error, and this court is now asked to reverse said judgment of dismissal without prejudice, and that a judgment dismissing plaintiff’s action be entered in this court.

Numerous grounds or error are set out in the petition in error, but the chief errors relied upon are: the failure of the trial court to grant defendant’s motion to instruct a verdict for defendant; the granting of plaintiff’s, motion to withdraw a juror and continue the ease; the refusal of the court to grant defendant’s motion to set aside the entry withdrawing a juror; and the granting of permission to plaintiff to dismiss his action without prejudice.

The error is prosecuted to the entry dismissing the action without prejudice. This, it is claimed, is a final order and error may be prosecuted thereto. Ordinarily plaintiff has the right, under favor of Sec. 11586 G. C., to dismiss his action without prejudice to a future action, provided he does so before its final submission to the jury or to the court when the trial is by the court. In such a case, although the entry of dismissal be considered a final order, no error lies to the dismissal because no prejudice results to the defendant from such a judgment, hut it is' only when the final order or judgment is prejudicial to the complaining party will a reviewing court reverse the judgment or' order however erroneous it may be.

The majority of the court are of the opinion that the entry of dismissal in this case is not a final order entitling the defendant below to prosecute error therefrom, for the reason that the dismissal of the cause without the court passing upon its motion to instruct the jury to return a verdict in its favor was not prejudicial to it.

A final order, as defined in Sec. 12258 G-. C., which may be vacated, modified or reversed, is:

“An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment,” etc.

This entry of dismissal undoubtedly determined this action below; and it is claimed by plaintiff in error that it prevented a judgment in its favor.

This contention of the plaintiff in error that the dismissal prevented a judgment in its favor, we think is an unwarranted assumption on its part; non constat but that the trial court would have overruled the motion of defendant for an instructed verdict, and on the final submission of the case to the jury a verdict might have been returned in favor of plaintiff and a judgment entered thereon. The record does not disclose how the trial court would have ruled. Beference is made to an opinion of the trial court announced some time after the case was dismissed by plaintiff without prejudice, and what purports to be a copy of this opinion is attached to a supplemental petition in error filed by plaintiff in error, but this opinion is no part of the record, nor is the language of the court found embodied any place in the record. We can not consider this opinion as a part of the record. It purports to be a decision on the motion to set aside the entry withdrawing a juror and for judgment in favor of defendant and granting leave to plaintiff to dismiss his action without prejudice. There are no journal entries as to any matters passed upon in this opinion except the entry of dismissal without prejudice. ■ We are not at liberty to presume or assume, in the absence of any record to that effect, that the defendant would have had an instructed verdict but for the withdrawal of. a juror and the dismissal of the cause without prejudice.

The only cause of complaint which plaintiff in error can fairly make, by reason of the court’s actions in withdrawing a juror, and later in allowing plaintiff to dismiss, without prejudice, is that it may be put to the additional cost, expense, trouble and time of defending another action brought by plaintiff; but this would be as probable if plaintiff had dismissed without prejudice at the close of his case before a motion had been made by defendant for an instructed verdict.

It is claimed that the court had no right to withdraw a juror and continue the case after the jury had been impaneled and the case had proceeded to trial, except by consent of parties, or because of sickness of a juror, or accident or calamity, or after the jurors have been kept together until it satisfactorily appears that there is no probability of their agreeing, and Secs. 11453 and 11454 G. C., and the case of Rau v. Risiden, 30 O. C. C. 689 (11 N. S. 255), are cited in support of this contention.

We are of-the opinion that Sec. 11453 does not embrace all the cases in which a continuance may be had after the commencement of a jury trial, nor does the code prohibit the practice of withdrawing' a juror and continuing a cause when in the opinion of the court justice requires this to be done. This practice has been resorted to from time immemorial, not only in this state but in many other states, and in the federal courts as well as in the courts of Great Britain and her colonies.

“Withdrawing a juror: A fiction to which the court may resort when it appears that owing to some accident or surprise, defect of proof, unexpected and difficult questions of law, or like reason, a trial can not proceed without injustice to a party. ’ ’ 40 Cyc. 2126.
“The withdrawal of a juror by direction or leave of court produces a mistrial and effects a continuance; and it is error when a party had been permitted to withdraw a juror, to enter judgment against him on the merits.” 38 Cyc. 1593; Planer v. Smith, 40 Wis. 31.
In the above case the court, after granting plaintiff’s motion to withdraw a juror, dismissed the plaintiff’s action and gave judgment for defendant, instead of continuing the case; and it was held that this was error, and that the only judgment which could have been properly entered was a nonsuit, which would not be a bar to another action for the same cause; in other words a dismissal without prejudice.
“A motion to withdraw a juror must be based on matters occurring at tbe trial; tbe granting of the motion being in tbe discretion of the court, which discretion is subject to review only in cases of abuse.” Abbott, Civil Jury Trials (3 ed.) pp. 487 to 494 inclusive; Schofield v. Settley, 31 Ill. 515; Huntington v. Railway, 175 Fed. Rep. 532 [99 C. C. A. 154]; Benson v. Railway, 228 Pa. St. 290 [77 Atl. Rep. 492]; Adler v. Lesser, 110 N. Y. Supp, 196; Morrison v. Hedenberg, 138 Ill. 22 [27 N. E Rep. 460], and many other eases that might be cited.

A juror may be withdrawn where it is necessary to prevent the defeat of justice. Wolcott v. Studebaker, 34 Fed. Rep. 8.

In the case at bar the plaintiff's counsel asked leave to file an amended petition, which we think the court might and should have granted, but because of the objection of counsel for the defendant, the court held that he had no right to grant leave to file the amended petition. It was then that counsel for plaintiff asked and obtained leave to withdraw a juror and continue the ease, manifestly for the purpose of more fully preparing plaintiff's case and amending the pleadings. This we think the court had the discretion to permit. Miller v. Metzger, 16 Ill. 390; Messenger v. Bank, 6 Daly (N. Y.) 190.

We are of the opinion that, under the circumstances shown by the record in this ease, the court did not abuse its discretion in permitting a juror to be withdrawn and a continuance of the case.

The case of Rau v. Risiden, supra, which denied the right of the trial court to discharge the jury in a civil action during the trial, unless based on the finding of some necessity therefor, or upon consent of parties, was overruled by the Supreme Court without report, because the order was not a final one within the meaning of the statute. Rau v. Risiden, 81 Ohio St. 538.

In any event, the effect of withdrawing a juror operated merely as a continuance of the case; the order was not a final one; it rested in the sound discretion of the court, and no abuse of discretion is shown by the record; no judgment had then been pronounced in defendant’s favor; nor, as we view the record, can it be said that defendant was entitled to an instructed verdict; at least the trial court has never so declared. No prejudice resulted to plaintiff in error because of this action of the court.

As to the dismissal of plaintiff’s case without prejudice at the time it was done, we hold that the plaintiff had the right to do so up to the time the case was finally submitted either to the court or jury. A motion had been made to instruct the jury for defendant and this motion was partly argued; but while being argued, and before submission to the court, and before any intimation had been given by the court as to how he would rule thereon, and before any announcement was made of the court’s decision on this motion, the plaintiff dismissed his action without prejudice. In fact, the court, on the record, has not yet passed upon that motion to instruct. This is one of the grounds of complaint by plaintiff in error that the court has not yet granted its motion or given a judgment in its favor.

The cases of Turner v. Car Co. 79 Ohio St. 153 [86 N. E. Rep. 651], and Lake Shore Elec. Ry. v. Sharp, 37 O. C. C. 000 are distinguishable from the instant case in that, in both of these eases it was sought to dismiss the plaintiff’s action after a motion for an instructed verdict for defendant had been made, argued decided, and granted by the court. The request in each of these cases to dismiss without prejudice came too late — after the court had announced its opinion and after final submission to the court — whereas under the statute, See. 11586 G-. C., the right to dismiss without prejudice exists only up to the time of final submission. As was said by Judge Price in the case of Turner v. Car Co. supra, at pages 167, 168:

“We again say, that the finding and judgment of the court on the motion is the determining authority and the directed verdict is in compliance with the forms of practice.”

See also Bee Bldg. Co. v. Dalton, 68 Neb. 38 [93 N. W. Rep. 930]; Morrisey v. Railway, 80 Ia. 314 [45 N. W. Rep. 545],

There being no errors in the record prejudicial to plaintiff in error, the judgment of the court of common pleas dismissing the plaintiff’s action without prejudice is affirmed.

Jones O. B. J., concurs.

Jones, E. H., J.,

concurring.

Acting under authority of Sec. 11586 G. C., plaintiff below dismissed his action, “before its final submission to the jury.” There had been no decision upon the motion for an instructed verdict, nor had any opinion been formed or expressed by the trial judge. Under these conditions plaintiff had the right to dismiss “without prejudice,” and the authorities relied upon by counsel for plaintiff in error do not fit this case. There is no order or judgment of which he may complain in a court of review, and no showing by the record that a judgment in his favor was prevented or forestalled by the dismissal.

The petition herein contains the necessary jurisdictional averment in a proceeding such as this, to-wit:

“A final order was made by said court of common pleas determining said action and preventing a judgment therein.”

This must mean that <a judgment for plaintiff in error was prevented by the voluntary dismissal of the action by plaintiff below. There is nothing in the record to support this averment. Hence plaintiff in error was not hurt by the order complained of. It was not deprived of any right nor was it the victim of any wrong, and it can not be heard to complain in a court of error.

The petition in error should therefore be dismissed.


author: CROW, J.

text:
    COSTS — PRINCIPAL AND SURETY.
    [Logan (3rd) Court of Appeals,
    August 10, 1915.]
    Crow, Ansberry and Kinder, JJ.
    Wilson McAdams v. J. W. Dunson.
    L Notice of Payment or Demand Not Condition Precedent to Right of Recovery in Action for Contribution from Cosurety.
    A surety who has paid more than his ratable share of a debt, is entitled to contribution from a cosurety, without averring or proving notice, or demand of payment.
    2. Costs Recoverable in Action for Contribution from Cosurety.
    In an action for contribution where the only relief sought is a judgment for money, costs are recoverable by plaintiff, as of right, under Sec. 11624 G. C.

      ERROR.

      John P. Bower and James Kernan, for plaintiff in error.

      Howenstine & Huston, for defendant in error.
   CROW, J.

Plaintiff in error, who was plaintiff in the court of common pleas, sought recovery from defendant in error, who was defendant below, by way of contribution, because of payments made by plaintiff, of the entire amount of two promissory notes upon which defendánt and plaintiff were sureties.

The cause was tried to a jury, and at the close of plaintiff’s case, on motion of defendant, a directed verdict was returned for him. Judgment was accordingly entered in defendant’s favor.

The evidence tends to prove all the essential elements requisite to plaintiff’s right to recover, excepting (if such be an essential element) notice to defendant, of said two several payments, or demand on him for contribution, prior to commencement of plaintiff’s action.

The trial judge held such demand to be necessary, and for lack of evidence tending to prove same (and for no other reason), directed the verdict, as above stated.

The only question for determination in the present ease is, therefore, the correctness of that action.

There are but three reported cases in Ohio, which either directly or remotely bear on the point.

These will be taken up in their order.

In Williams v. Williams, 5 Ohio 444, the material facts were as follows:

E'dward Williams and Isaac Williams were makers of a joint and several bond, to one Heath. After its maturity, and more than six years prior to commencement off the suit, Edward Williams paid more than one-half the principal and interest then due, such payment being referred to in the opinion, as “a small sum. ’ ’

Several years thereafter the obligee, Heath, brought suit on the bond for the unpaid balance, against Edward Williams and Tsaac Williams, and recovered judgment against both. Soon after rendition of the judgment Isaac Williams died, and Edward Williams paid the whole of same.

For recovery of oné-half of said two payments with interest, Edward Williams’ administrators sued Isaac Williams’ administrators.

The defenses were non assumpsit, and non assumpsit withm six years.

The questions presented by the issues, so far as here pertin. ent, are: (1) applicability of the statute of limitations; (2) if applicable, the time from which it begins to run, whether from the date of each payment of a part, or from the time payment of the whole sum only, or from maturity of the original instrument of obligation upon which the parties were bound; and, (3) whether the action accrues until notice has been given, or demand has been made.

The court held: (1) that the transaction involved no element of trust, and that the statute of (six years) limitation applied; and (2) and (3) that in cases where the co-obligor has paid in small installments, he can not, without prior notice or demand, maintain a suit for each sum so paid.

It is worthy of notice, that no fact appears which would seem to call for any comment regarding “small installments,” as there were but .two payments the first of which was more than one-half the total amount then due on the obligation, and the other covering the whole of the remaining sum.

It should also be observed that at page 447, “other payments” are spoken of in obvious reference to the one payment of the judgment covering said remaining sum.

While the ease nowhere either in the statement of facts or the opinion, specifically discloses whether notice was given, or demand made, between the dates of payment of the judgment, and commencement of plaintiff’s suit, we are constrained to assume that the court considered and decided the ease on the theory of absence of such notice or demand in view of the discussion of point 4 on page 446 and the language of paragraphs three and four of the syllabus-.

Hence that case must be regarded as supporting the contention that no notice of payment need be given, nor demand made, before commencement of suit.

The case of Carpenter v. Kelly, 9 Ohio 106, is, however, a direct authority in complete opposition to the above contention, so far at least as relates to the matter of giving notice to a cosurety, of payment. The syllabus is thus restricted, and the learned judge who delivered the opinion, construed at page 108, the issue of lack of demand to be the equivalent of want of notice of payment.

No case is referred to, other than Williams v. Williams, supra, no reasoning employed, nor is there any language save the bare statement that the cosurety from whom contribution was undertaken, was not by his own act, a debtor of the surety who had paid, but became so by reason of such payment.

The case of Neilson v. Fry, 16 Ohio St. 553 [91 Am. Dec. 110], was a suit between cosureties, wherein one who had paid the full amount of a judgment upon which another was equally liable, brought suit against the latter for contribution.

The form of that action was equitable in that plaintiff was invoking the fiction of subrogation because plaintiff had paid the judgment, but he actually sought no equitable relief.

The court, disregarding the form so attempted to be impressed by the plaintiff on the transaction, held the latter to be in substance one for the recovery of money only.

The controlling question in the case, was that of applicability of the statute of limitation, and the court decided the action to have been barred by the lapse of six years, inasmuch as the ultimate (and only) relief sought was the recovery of money only.

The question of notice of payment as a condition precedent to the right to maintain the action, was raised and discussed in the ease, but was not necessarily material to the decision, because of the bar of the statute of limitation.

In discussing the question of notice, the language of the court is conflicting. At one place (page 556) it is said that, if the action was to be regarded merely as the old action of as-sumpsit, to recover money equitably due, the defense of wan* of notice, would have been a good bar to the action, whilst at, page 558, it is stated that if recovery of the money be sought by simple action, or by the aid of the fiction of substitution, costs could not be recovered without previous notice of the payment.

It should also be noticed that paragraph three of the syllabus not only covers the question of the statute of limitation, but the necessity for notice of payment, is restrained to the question of costs.

The decision was by a divided court, three judges concurring, and two dissenting, as to the third proposition of the syllabus.

Turning from the inharmonious expressions in the above mentioned cases, to the decisions of the courts of final resort in other states, no dissention can be found. All agree upon the proposition that neither notice, nor demand of, payment need be given a cosurety, before commencement of an action against him, for contribution. The following are among the leading eases: Chaffee v. Jones, 36 Mass. (19 Pick.) 260; Taylor v. Reynolds, 53 Cal. 686; Wood v. Perry, 9 Iowa 479; Wyckoff v. Gardner, 5 Atl. Rep. 801 (N. J. Chanc.); Sherrod v. Woodward, 15 N. C. (4 Dev.) 360 [25 Am. Dec. 714]; Foster v. Johnson, 5 Vt. 60; Cage v. Foster, 13 Tenn. (5 Yerg.) 261 [26 Am. Dec. 265]; Mason v. Pierron, 69 Wis. 585 [34 N. W. Rep. 921].

To the like effect are these authoritive text-boobs: Childs, Surety. & Guar. 329; Stearns, Suretyship 523; Spencer, Suretyship Sec. 149, 154; Pingrey, Surety. & Guar. Sec. 196; Brandt, Surety. & Guar. Sec. 319.

In harmony therewith, is also the modern and most excellent and dependable work, 6 Ruling Case Law 1045.

The judgment will therefore be reversed, and the cause remanded for a new trial.

With respect to the taxing of costs, it is sufficient to say that where the action in which contribution is sought does not involve equitable relief, the matter is now governed by Sec. 11624 G. C., which requires them, in a case like the one at bar, to be adjudged against defendant.

Kinder and Ansberry, JJ., concur.


author: CHITTENDEN, J.

text:
    GIFTS — RELIGIOUS SOCIETIES.
    [Hamilton (1st) Court of Appeals,
    March 8, 1915.]
    Mark A. Crawford, Admr. v. Foreign Christian Missionary Society. Mark A. Crawford, Admr. v. American Christian Missionary Society.
    Donations to Missionary Society Evidenced by Annuity Bonds, Held Executed Gifts in Which Administrator has no Interest.
    Donations made by a decedent to a missionary society, receipted for by papers denominated annuity bonds and which recite that such donations are executed gifts to the society and are to belong to such society from the date thereof without any account or liability therefor, and which contain an agreement to pay an annuity to the donor during his lifetime, and such annuities being paid to the time of the donor’s death, are in fact executed gifts in which the administrator of the donor has no interest.
    [Syllabus by the court.]
    Error.

      W. C. Lambert and Guy W. Mallon, for plaintiffs in error.

      Galvin & Galvin and H. A. Bayless, for defendants in error.
   CHITTENDEN, J.

Plaintiff below, Mark A. Crawford, as administrator of the estate of John F. Davis, deceased, began suit in each case to recover an amount of money which it was alleged the defendant had received for the benefit of the deceased or his estate. The defendants are religious organizations formed for the purpose of promoting the Christian religion.

It appears that at various times from 1897 to 1909, Mr. Davis had given various sums to these organizations, amounting in the aggregate to more than $30,000. Upon receipt of a given amount the societies issued to him a paper denominated an annuity bond. These bonds, in substance, recite that Mr. Davis had donated to and paid into the treasury of the society a specified amount of money, and recite that such sum so donated by him is to be considered as an executed gift to said society and to belong to said society from this date, without any account or liability therefor. It is further provided in the bonds that the society should pay an annuity of a given amount, in semiannual payments, such payments to cease upon the death of the donor. These annuities ranged from 4 to 6 per cent on the amount of the donation.

"Without undertaking to discuss in detail the interesting arguments of counsel, we will state that it is our conclusion that the transaction constituted an executed gift, and that the paper issued by the society and denominated an annuity bond is a complete and specific declaration that it is a completed and executed gift. Such paper not only constitutes a declaration on the part of the society that it is receiving the money as a gift, but it is likewise a declaration upon the part of the donor whc accepted these bonds and retained them during his lifetime. Whether the agreement upon the part o-f the society to pay the pmuities could have been enforced by the donor, need not her^ be considered, because the societies did in fact pay to the donoi such annuities until the time of his death.

Entertaining the views above announced, it follows that the judgments should be, and the same are hereby affirmed.

Richards and Kinkade, 33., concur.


author: IONES, J.

text:
    INSURANCE.
    [Highland (4th) Court of Appeals,
    December 30, 1914.]
    Sayre, Jones and Walters, JJ.
    Abraham Weil, et al. v. Connecticut Fire Ins. Co.
    1. Plaintiff Suing for Insurance Required to Plead in First Instance Legal Excuse for Noncompliance with Policy.
    A plaintiff who intends, in an action on a policy of Are insurance, to rely on a legal excuse for nonperformance of a condition of the policy, should plead such excuse in the first instance.
    2. Insurance Company not First Required to Bona Fide Ascertain Amount of Loss and Submit Same to Insured.
    Where an insurance company by letter informs a policy holder who has suffered loss by fire that it disagrees with him as to the amount of goods destroyed and also as to the value of the goods which were destroyed, there is a sufficient disagreement to require the plaintiff to comply with the contractual provision in the policy regarding appraisal; and it is not the law of Ohio that the company must first make a bona fide investigation of the loss sustained and make a definite ascertainment of the amount and submit the same to the insured.
    3. Telephone Conversation in which Insured Proposes Plan of Arbitration without Reply by Adjuster not Estoppel or Waiver of Appraisal Condition of Policy.
    A telephone conversation between the insured and an adjuster for the company, in which the insured told the adjuster they would each pick a man “and the two pick a third, or settle the matter in any way at all,” to which proposition the adjuster made no reply, does not constitute an estoppel against the company or a waiver of its right to insist upon the provisions of the contract with reference to an appraisal.
    ERROR.

      J. L. Kohl and D. Q. Morrow, for plaintiffs in error.

      J. W. Mooney, B. M. Edwards and Smith & Morrow, for defendant in error.
   IONES, J.

In the lower court the plaintiffs in error filed a petition, seeking damages for the loss by fire upon an insurance policy. The policy was one of the standard forms, and was attached to the petition.

The petition contained an allegation,

“That said plaintiffs have duly performed all the conditions on their part to be performed,” etc.

The insurance company filed its answer, containing five defenses.

It is not necessary to allude to these various defenses, except to say that the first defense, with the exception of some admissions therein contained, was in effect a general denial of the allegations in the petition.

The real question involved in this ease arises upon the allegations of the third defense. That defense contains a number of the provisions contained in the policy of insurance sued on, among which are the following;

“In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and tbe two so ebosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire.”

The following provision was also contained in the third defense :

“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements. ’ ’

A reply was filed. Upon the pleadings the cause went to the court and jury. At the conclusion of the entire evidence the defendant moved the court for a directed verdict, which, upon due consideration, the trial court sustained and directed the jury to return a verdict for the defendant.

I. The error relied upon in this court is: that the court below erred in directing the jury to return a verdict for the defendant.

It is conceded by counsel in argument and it is also evident from the record, that the .action of the trial court was based upon the fact that the evidence adduced upon the trial failed to show a compliance upon the part of the plaintiffs below with the provisions relating to the procurement of an appraisement of the property, as set forth in the third defense of defendant’s answer.

It appears from the record that on September 5, 1912, nearly two months after the loss by fire occurred, the insurer wrote a letter to plaintiffs in error, acknowledging the receipt of the proofs of loss. That letter contained the following statement:

“Beg to advise that we can not accept the above mentioned document as a satisfactory proof of loss for the reason that the terms and conditions of the policy have not been complied with by yourself.
“That we disagree with you as to the amount of wool alleged to have been destroyed, in pounds and value per pound and as a whole, and as to the amount of loss claimed thereon.
“Therefore, we advise you that for the reason set forth above and others not herein set forth, we reject said document as not satisfactory proof of loss to this company. ’ ’ * * *

It has been held by the courts of this state that the provisions thus contained in the third defense of defendant’s answer constitute a' condition precedent, imposing an obligation upon the insured, in the event of disagreement as to the amount of loss, to procure an award or ascertainment by appraisement, or to show legal excuse therefor, before he can maintain an action upon the policy. Graham v. Insurance Co. 75 Ohio St. 375 [79 N. E. Rep. 930; 15 L. R. A. (N. S.) 1055; 9 Ann. Cas. 79]; Phoenix v. Ins. Co. v. Carnahan, 63 Ohio St. 258 [58 N. E. Rep. 805].

It was incumbent upon the plaintiffs in this case, under the allegations of their petition, to show affirmatively that they had performed this condition contained in the policy. If they had intended to rely upon a legal excuse for its nonperformance they should have pleaded such excuse in the petition in the first instance. This they did not do. At the close of the trial, when the court was asked to direct a verdict for the defendant, the plaintiffs asked permission to 'amend their reply, which permission the court granted. This amendment to the reply, made at the close of the case, contained an allegation that:

“Said plaintiffs offered to bring about and made every effort on their part to secure an appraisement, adjustment, award and ascertainment of said loss as provided for by said policy, but said defendant refused to confer with said plaintiffs as to said appraisement, adjustment, award or ascertainment, and by their refusal prevented, any appraisement, adjustment, award or ascertainment of said loss. ’ ’

It is urged by counsel for plaintiffs in error that there was no disagreement as to the amount of loss shown by this record which would become a predicate for the demand for appraisal and award.

This disagreement is evidenced by plaintiff’s exhibit No. 12 and is contained in the letter of September 5, 1912, above referred to.

It is urged by counsel for plaintiffs in error that good faith required that the insurer, itself, should have made an investigation, and upon tbe facts thus revealed it should have ascertained a fixed or definite sum upon which a disagreement could arise.

The letter of September 5, 1912, shows that the insurer disagreed with the insured “as to the amount of wool alleged to have been destroyed, in pounds and value per pound and as a whole, and as to the amount of loss claimed thereon.” Prior to this letter the insured had submitted to the insurer their proof of loss.

We are of the opinion that this was a sufficient disagreement upon the part of the insurer as to require the .plaintiffs in error to comply with the contractual provision in their policy relating to the appraisal.

While there are some authorities holding otherwise and which would seem to require the insurer, itself, to make a tona fide investigation of the loss and a definite ascertainment of the amount and submit such to the insured, we are of the opinion that this is not the law of Ohio. Upon this point we think that the following cases are decisive: Everett Co. v. Insurance Co. 20 Dec. 171 (9 N. S. 241); Phoenix Ins. Co. v. Carnahan, supra.

In neither of these cases does it appear that a definite ascertainment of any sort was made by the insurer and submitted to the insured.

The case of Everett Co. v. Insurance Co. supra, which was later affirmed by the Supreme Court of Ohio without report, upon this subject is very similar to the case at bar. In that case the disagreement arose over the amount claimed in the proofs of loss, and it does not appear that any other sum was submitted to the insurance company to the insured as a basis for agreement.

In view of these authorities, therefore, we conclude that there was such a disagreement as to the amount of loss which required the insured to act under the provisions of the policy relating to appraisal, which was a condition precedent to their bringing a suit for the loss sustained.

II. The most serious question involved in this ease, however, arises on the allegations of the amended reply and the evidence disclosed in the record in relation thereto.

In this connection the contention of the plaintiffs below iff, that upon the pleadings, as amended, the insured had shown a legal excuse for noneompliance with the provisions relating to appraisal.

Some question was made by counsel 'for defendant in error as to the right of the court to permit the amended reply to be filed at the close of the case. But in view of the fact that the parties, upon the trial, tried the issue that was raised by the amended reply, and in view of the further fact that the record does not disclose that the defendant below was taken by surprise, we think that there was no abuse of discretion upon the part of the trial court, under the statute permitting amendments to be made at any stage of an action, in permitting the amended reply to be filed at that time. We, however, think that the matters contained in the amended reply should have been properly included in tire petition, as they tended to show a legal excuse for noneompliance with one of the provisions of the policy, and the burden of showing the allegation therein contained remained throughout the entire case upon the plaintiffs below.

The evidence, if any, tending to justify the action of the insured in not complying with the provisions of the policy is contained on pages 26, 27 of the record. Abram Weil, one of the plaintiffs, after testifying with relation to a nonwaiver which had become the subject of dispute between the parties, testified' that he went to the Chittenden Hotel, at Columbus, and called up Mr. Parsons, the adjuster of the insurance company, and found that he was at home sick. The only portion of Mr. Weil’s testimony relating to this question of the adjustment and ascertainment of the loss is found in the following questions and answer :

“Q. What did you say to him about arbitration of it by anyone, or ascertainment of loss?
“ (Objected to.)
‘ ‘ Q. I asked you as to what you said ? A. I told Mr. Parsons over the phone if he had anybody in Columbus, he could pick a man and we pick one, and the two pick a third, or settle the thing any way at all.”

The record does not disclose affirmatively that Mr.-Parsons made any answer to the statement of the witness, and does not disclose affirmatively that any reply whatever was made, and it only inferentially appears that Mr. Parsons may have heard the statement of Mr. Weil.

It was incumbent on the plaintiffs below to show that they had complied with the condition precedent in the policy above referred to, or to furnish some legal excuse, under the authority cited, as to why they had not complied with the same. In order to recover on this theory it was necessary to show that the defendant had, by its conduct or otherwise, done something whieh was tantamount to a waiver of this contractual provision in the policy.

The statement of Mr. Weil, above referred to, only shows that he stated to the adjuster over the phone that he could pick a man and the insured would pick one, and the two pick a third, and that they would settle it any way at all. There was no reply upon the part of Mr. Parsons. So far as this evidence discloses, his silence may have been an acquiescence in the proposition of Mr. Weil; in which event it would be necessary for Mr. Weil to proceed under the provisions of the policy and demand an appraisal and name an appraiser. There was nothing said or done by Mr. Parsons which is equivalent either to an estoppel or a waiver.

As was said by Davis, J., in List v. Chase, 80 Ohio St. 49 [17 Ann. Cas. 61].

“A waiver is a voluntary relinquishment of a known right. It may be made by express words or by conduct which renders impossible a performance by the other party, or which seems to dispense with complete performance at a time when the obligor might fully perform. Mere silence will not amount to waiver where one is not bound to speak. ’ ’

And in Phoenix Co. v. Carnahan, supra, the same judge says:

‘1 The insured can not rest upon the silence of the insurer as to arbitration, when a difference arise» as to the amount of the loss. It was therefore incumbent on the insured, not the insurer, to perform this condition as a condition precedent to his right of recovery, whenever a difference should arise, as to the amount of the loss whether a demand was made by the insurer or not. ” * * *

Applying these rules in this case we see nothing done or said upon the part of the insurance company, or its adjuster, that wotild preclude its right from relying upon the provisions of its contract. Mere silence will not constitute such an estoppel or waiver as would deny it the right to insist upon its compliance.

If Mr. Weil made the statement he claims to have made over the telephone to Mr. Parsons and Mr. Parsons made no reply thereto, Mr. Weil could have as well taken his silence to mean his acquiescence with the statement that he would procure an appraiser, and thus rely upon carrying out the stipulations of the contract between them.

We are, therefore, inclined to the opinion that, in view of the facts disclosed by this record, the plaintiff below did not furnish sufficient proof to obviate the necessity of complying with the provisions of the policy and that the court did not err 'in directing a verdict for the defendant below.

The judgment of the lower court is affirmed.

Sayre and Walters, JJ., concur.


author: JONES, O. B., J.

text:
    ELEVATORS.
    [Hamilton (1st) Court of Appeals,
    February 2, 1915.]
    Jones, Jones and Gorman, JJ.

      Victor Bittner, a Minor v. Dolly Varden Chocolate Co.
    Boy’s Foot Crushed between Elevator Platform and SMI of Unscreened Window not Injury within Machinery Guarding Statute.
    Failure to screen a window lighting an elevator shaft does not render the proprietor under Sec. 1027 G. C. liable to a hoy whose foot, when projected over the open side of a freight elevator, was caught and crushed between the base of the elevator and the window sill.
    Error.

      Cowell & Lamping, for plaintiff in error.

      Waite & Schindel, for defendant in error.

      Affirmed, no op., Bittner v. Chocolate Co. 93 O. S. 000; 60 Bull. 471.

   JONES, O. B., J.

The action below was for personal injury to a boy sixteen years of age, caused by his foot being caught between an elevator platform and the side of the shaft at the top of a window which admitted light and air to said shaft.

The only negligence relied upon is that defendant had failed to comply with the provisions of Par. 4, Sec. 1027, G. C., which is as follows:

‘ ‘ The owners and operators of shops and factories shall make suitable provisions to prevent injuries to persons who use or come in contact with machinery therein or any part thereof, as follows: # * *
“4. They shall case in all unused openings of elevator shafts and place automatic gates or floor doors on each floor where entrance to the elevator carriage is obtained. They shall keep such gates or doors in good repair and examine frequently and keep in sound condition the ropes, gearing and other parts of elevators. ’ ’

The evidence shows that the elevator in question was a freight elevator operating in a five-story building. It was open, in tbe back and front for the purpose of admitting freight, and was closed at the sides, and operated in a shaft which was entirely enclosed, having doors on an alley and into the storeroom on the first floor and a door on each of the upper floors, these door openings being provided with automatic gates and firedoors at each floor. In each story was an ordinary glass window opening into the shaft to admit light and air.

Plaintiff’s testimony was to the effect that these glass windows were each set in a recess about one inch back from the face of the wall, while defendant, being called for cross-examination by plaintiff, testified that the tops of these windows were flush with the wall, but that they were recessed about one inch at the bottom.

The accident occurred by plaintiff extending his foot beyond the elevator platform in such way that his heel was caught between this platform and the top of the window at the front of the shaft on the second floor. Plaintiff charges an omission of duty, contrary to the provisions of Sec. 1027 G. C., in the defendant failing to case or screen in such window. This section is an amendment of an act passed March 20, 1900, found in 94 O. L. 42, which required owners and operators of factories and workshops to make suitable provisions to prevent injury to persons who may come in contact with machinery, and such

“provisions shall include * * * the railing in all unused elevator openings, the placing of automatic gates or floor doors and the keeping of same in good condition, on each floor from which and where on each side or sides, or elevator openings, entrance to the elevator carriage is obtained, the frequent examination and keeping in sound condition of ropes, gearing and other parts of elevators. ’ ’ ■

From reference to this law it will be seen that the windows in question in this ease were not such “unused openings” as are referred to in the statute. There is no charge made in the petition of any negligence on the part of defendant, either in the construction or the operation of the elevator. Such an accident might occur in any well constructed freight elevator by a passenger carelessly and negligently extending a hand or foot beyond tbe line of the platform in such way as- to be pinched! against the side of the shaft, or at a floor or window. For similar eases, see: Connell v. Manufacturing Co. 10 Dec. Re. 129 (29 Bull. 22); Malaverneri v. Construction Co. 141 App. Div. 360 [126 N. Y. Supp. 303]; Hoehmann v. Engineering Co. 4 Misc. 160 [23 N. Y. Supp. 787]; McDonald v. Dutton, 190 Mass. 391 [76 N. E. Rep. 1055]; Roberts v. Food Co. 142 Mich. 589 [106 N. W. Rep. 68].

In the opinion of the court it was not error in the trial court to direct a verdict for defendant, as was done, and the judgment is therefore affirmed.

Jones, E. H. and Gorman, JJ., concur.


text:
    INSURANCE.
    [Hamilton (1st) Court of Appeals,
    January 31, 1916.]
    Jones, Jones and Gorman, JJ.
    Henrietta D. Schuermann, Exrx. v. Henrietta Twachtman et al.
    Beneficiaries Who Satisfied Debt for Which Insurance Policy Was Pledged Entitled to Indemnity.
    Beneficiaries under a policy of life insurance, who have been compelled to pay a loan which the insured by pledging the policy obtained for his own use and benefit, are entitled to judgment against the estate of the insured for the amount of the debt so satisfied.
    Error.

      L. D. Oliver, for plaintiff in error.

      Long & Paxson, for defendants in error.
   JONES, O. B., J.

This cause was decided in the court below upon a general demurrer to the petition. Defendant there not desiring to further plead, on the overruling of this demurrer judgment was entered for plaintiffs.

The petition states that in each cause'of action money was borrowed by defendant’s intestate Christian F. Schuermann for his sole use and benefit, from the Mutual Life Insurance Company, under an agreement to repay same signed not only by himself but also by his children, W. H. Schuermann and Elizabeth Schuermann Twaehtman, neither of whom received any part of said consideration and who were then the only beneficiaries of the insurance policy which was by the terms of said agreement then assigned to the company as collateral security for the payment of said loan; that Elizabeth Schuermann Twaehtman died January 26, 1908, leaving surviving her the following named children: George Twaehtman, Henrietta Twaehtman, Elizabeth Twaehtman and Willie Twaehtman, and Christian F. Schuermann died November 15, 1933; that by reason of the failure of Christian F. Schuermann to repay said loan according to the terms of said agreement, plaintiffs Henrietta Twaehtman, Elizabeth Twaehtman and Willie Twacht-man, George Twaehtman and William H. Schuermann were compelled upon the death of Christian F. Schuermann to pay out of the proceeds of said policy of insurance in the first cause of action the sum of $1,658-, and in the second cause of action the sum of $1,436, to the Mutual Life Insurance Company; that the said George Twaehtman duly assigned his claim therein to the plaintiff; and that by reason of said facts plaintiffs have been damaged to the extent or $829 and $718 respectively— making' together the sum of $1,547, for which judgment was prayed.

It was alleged in the petition that William H. Schuermann had an equal interest with plaintiffs, and had on request refused to join with them as plaintiffs and had therefore been made a defendant. Plaintiffs claim as representing the half interest of their mother, who with her brother became surety for the debt of their father, the insured, to have paid such debt and ask to be reimbursed for such payment out of • the estate of the principal debtor.

It is well settled that where property is mortgaged or pledged by its owner, to secure the debt of another, such property occupies the position of a surety or guarantor, and if such property is taken to satisfy the debt the owner may recover indemnity from the principal debtor. 1 Brandt, Surety & Guar. (3 ed.) Séc. 43.

The demurrer admitting that the debt to the insurance company was the debt of Christian F. Schuermann and that it was in part paid by plaintiffs, it follows that they were entitled to recover from his estate so much of the debt as they were compelled to pay, and the judgment was properly rendered for plaintiffs.

Plaintiff in error, however, contends that the proceeds of the insurance policy should have been paid entirely to William H. Schuermann and not one-half to him and one-half to the children of Elizabeth Schuermann Twachtman. In other words, it is contended that the words of the policy under which the company upon the death of the insured agrees to pay the amount named therein to Henrietta-Schuermann as the “assured for her sole use, if living, in conformity with the statute, and, if not living, to her children or their guardian, for their use,” must be construed so as to confine such payment strictly to the “children” of said Henrietta, and can not be construed as including “grandchildren” to let in the children of her daughter Elizabeth Schuermann Twachtman.

The conclusion .contended for would make William H. Schuermann the sole beneficiary of the policies, and thus a question might have been raised between him and plaintiffs below as to who was entitled to the proceeds of the policies. But it seems he has made no such claim, and it would hardly be in the power of plaintiff in error to assert such a claim for him. If she might have raised such a question in this case, it must have necessarily been done by answer, and in our view she has failed to do so by demurrer to the petition as filed herein.

The question as to whether the grandchildren would' have been entitled to participate in the proceeds of the policies, if such right had been challenged by their uncle; is not entirely free from doubt. Each of these policies is an Ohio contract and would be governed by the laws of Ohio. Plaut v. Insurance Co. 26 O. O. C. 499 (4 N. S. 94).

Counsel for plaintiff in error rely upon Ryan v. Rottweiler, 50 Ohio St. 595 [35 N. E. Rep. 679], We can not regard it as an authority for the reason that there the wife and only child, and the only child of that child, all died before the husband and father who was the insured, and the policy was held to enure to the benefit of the estate of the insured under the principle covered by Sec. 9399 G. C.

Reliance is also placed upon the two unreported cases of Frank v. Baumann, 54 Ohio St. 621, and Dovel v. Dovel, 69 Ohio St. 576. Each of these cases is stated in the report to have been decided on the authority of Ryan v. Rottweiler, supra. Notes in regard to the first of these cases are found in Frank v. Bauman 1 O. S. U. 407 (35 Bull. 59), and copies of the printed record and briefs used in the Supreme Court in the Dovel case are submitted here. An inspection of these would indicate that the question whether a grandchild would be included under the word “children” as a beneficiary under such a policy in right of its deceased parent, was involved in each of these eases. But as the Supreme Court failed to report either of these two cases, we feel compelled to follow their repeated declarations as to unreported cases and refuse to consider them- as authorities binding upon this court.

The authorities outside of Ohio áre not in accord upon this question. A leading case in favor of admitting the child of a deceased child to an interest in the policy is found in Continental Life Ins. Co. v. Palmer, 42 Conn. 60 [19 Am. Rep. 530]. The same rule has been followed in Connecticut Mut. Life Ins. Co. v. Fish, 59 N. H. 126; Glenn v. Burns, 100 Tenn. 295 [45 S. W. Rep. 784]; Michigan Mut. Life Ins. Co. v. Basler, 140 Mich 233 [103 N. W. Rep. 596]; Diehm v. Insurance Co. 129 Mo. App. 256 [108 S. W. Rep. 139],

A contrary rule has been announced in Waist v. Insurance Co. 133 N. Y. 408 [31 N. E. Rep. 228; 28 Am. St. Rep. 651]; Martin v. Modern Woodmen, 253 Ill. 400 [97 N. E. Rep. 693].

If it were necessary to construe the language of the policy, in the absence of reported decisions in Ohio we should be inclined to follow the rule laid down in the Connecticut case and the other cases first noted above, as carrying out the natural intention of the parties and being more in accord with the law of descent and distribution, the provisions for insurance being somewhat analogous to testamentary provisions. The condition of the record in this case, however, as we have above stated, does not require a decision upon this question, but does require an affirmance of the judgment.

Judgment affirmed.

Jones, E. H. and Gorman, JJ., concur.