author: HULL, J.

text:
    INSURANCE — LIFE.
    [Lucas (Gth) Circuit Court,
    June 13, 1903.]
    Minnie Swander v. Northern Central Life Insurance Co.
    1. Notice Necessary to Forfeiture of Policy, When.
    Where a life insurance policy contains no clause of forfeiture and no provision for forfeiture, failure to pay the premiums on or about the day when they become due will not immediately work a forfeiture, but will merely suspend the rights of the insured in the policy until the amount due is paid or until the lapse of such length of time as will indicate that he does not intend to pay and has practically withdrawn. But before such a policy can be forfeited there should be some declaration to that effect on the part of the company and notice thereof given to the insured.
    2. Facts Showing Waiver of Forfeiture by Insurer.
    Where, in an action upon a life insurance policy, the evidence shows that the company repeatedly collected the monthly premiums upon the policy after they were due, and, on January 14 collected the monthly premiums due November 1 preceding and again on January 25, attempted to collect the premiums due December 1 and January 1, but upon learning that the insured died on the preceding day refused to accept the premium and gave no notice to the insured of its intention to suspend or forfeit the policy, there is evidence tending to show that the company had waived its right to suspend or forfeit the policy for nonpayment, and it is error to direct a verdict for the company.
    3. Rule for Construction of Contract of Insurance.
    A policy of insurance, being drawn by the insurer, is to be construed most strongly against him.

      Eeror to the court of common pleas.
    A. T. Gourley, for plaintiff in error.
    R. W. Kirkley and E. W. Tolerton, for defendant in error.
   HULL, J.

This action was brought by the plaintiff in error, who was also the plaintiff belów, upon a certain life insurance policy, issued for her benefit upon the life of her sister, Hattie Cappell, the first day of April, 1901, the premiums to be paid monthly in advance, the amount being eighty-eight cents per month. The premium for some months, which was required by the policy to be paid on the first day of the month, was paid, bpt no premium falling due after November 1, 1901, was paid, and <on January 24, following, 1902, Mrs. Cappell, on whose life the policy was issued, died. On January 14 preceding that the premium due up to November 1, 1901, was paid to and accepted by the company, and ten days later Mrs. Cappell, as stated, died. Payment of the policy was refused by the company, on the ground that it had lapsed on account of default in payment of premium, and action was brought by the beneficiary, Mrs. Minnie Swander, the plaintiff.

At the conclusion of plaintiff’s testimony, upon motion of the defendant, the jury was directed to return a verdict in favor of the defendant, on the ground that the policy had been forfeited, and had lapsed' on account of the nonpayment of premiums as provided in the policy. Judgment was entered upon this verdict, and it was to reverse this judgment of the court of common pleas that a petition in error was filed here; and the question is, whether under the facts as shown by the record in this case and under the contract of insurance that existed between the parties, the evidence offered by the plaintiff showed as a matter of law that the policy had been forfeited or had lapsed.

The plaintiff in her petition sets up certain things which she claims constituted a waiver on the part of the company of the right to have the premiums paid on the first day of each and every month. It was shown in the evidence that, after the first two or three months, there were no premiums paid on the first day of the month, but that they were paid at subsequent dates, and that no notice was given to Mrs. Swander that the policy was forfeited or had lapsed, and the last premium was accepted by the company on January 14, ten days before the death of Mrs. Cappell. And a question further arises as to whether, under the terms of this policy, the insurance would become forfeited or lapsed by reason of the nonpayment of the premium on the first day of each month.

A few general principles may be stated at the outset. Where a policy of insurance contains a clause of forfeiture by reasoq of the nonpayment of premiums at a certain time, it is a valid part of the contract and the policy may be forfeited unless prohibited by statute. The general rule is, that clauses or provisions of forfeiture are to be construed strictly and are not encouraged by the courts. As was said by our Supreme Court in Union Cent. Life Ins. Co. v. Pottker, 33 Ohio St. 459, forfeitures are odious and must be strictly construed, and there are many other authorities to this effect.. This policy does not contain any clause of forfeiture; it contains no such clause as is ordinarily inserted in insurance policies. It provides: “This contract is made in consideration of the application which is made a part hereof, and of the payment in advance to the company or its authorized representative, of one month’s premium $.88 due on date of issue of this policy and a like amount to' be paid monthly thereafter during the continuance of this contract. * * * The company will not contest the payment of this policy except for fraud or nonpayment of premium, provided that should death occur while engaged in military or naval service in time of war, without a permit, the liability of the company shall be limited to the net reserve on this policy computed according to the legal standard of the state of Ohio.”

That clause of the policy seems to recognize the fact that the nonpayment of dues could be or might be a defense to the payment of the policy. It provides further along, that should this policy lapse after payments have been made for three full years, then certain conditions would follow — not necessary to quote, and I only refer to this to show that the policy does contemplate that it might lapse under certain circumstances. The question in the case, of course, is to be considered in the light of the policy which we have before us, a policy which contains no absolute clause of forfeiture.

Briefly as to the facts of the case. It appears from the testimony and as set down in the book which was given to the insured in which to have the payments of premiums recorded, that the first payment of eighty-eight cents, due April 1, was paid and all of the other payments were made to the duly authorized collectors of the company, and one payment at least was made to the superintendent of the' company. The second payment, due May 1, was paid on the date it became due. The third payment, due June 1, was not paid until June 15. The payment due July 1 was not paid until July 6; the next -payment, due August 1, was not paid until August 3; the next payment, due September 1, was not paid until November 33, and the next payment, due October 1, 1901, was not paid until January 14, 1903. The collectors called at the house at various times to collect these payments — not always calling on the first of the month and sometimes calling two or three times during the month. In the fall sometime, perhaps in November, one of the agents suggested to Mrs. Swander that she ought to pay up her premiums, or she might get no benefit out of the policy, but there was no statement made to her that the policy would be forfeited, nor did she understand that it would be forfeited on account of her being back in her payments. Her testimony on this subject is found on page eight of the record, where she says that Mr. Trailour told her that she would have to “catch it up” or it wouldn’t be of any benefit to her, and she told him that she would “catch it up” as quickly as she could. This is the only conversation or communication, according to the evidence, she had on this subject with any representative of the company.

The last payment was made on January 14, but the agent came to her house to collect the balance due on premiums on January 23. For some reason it was not paid then. I believe Mrs. Swander was not at home. She had the money to pay it, and he promised to come the next day. He did not come the next day, but came the following dajq the twenty-fifth, and meanwhile Mrs. Cappell had died. He came to the house on January 25, to collect the premiums then due, amounting to $1.7G, and the evidence shows that plaintiff was prepared to pay and had the money to pay, but upon being informed that Mi's. Cappell was dead the agent declined to receive the money.

So it appears that these premiums were received from time to time after the first day of the month, without objection and without any notice to Mrs. Swander that her policy would be forfeited or lapse on account of nonpayment on the exact day they became due, and collections were made, as stated, as far along as January -14, and.a visit to the house to collect on the day after Mrs. Cappell died, and no attempt was made to forfeit the policy or to declare a forfeiture until after the death of Mrs. Cappell. In the book furnished by the company in which the payments of the premiums were recorded there is a printed notice to the insured which is significant and which indicates that it was not contemplated by the insurance company that these premiums in all cases should be paid on the day they were due. This is under the heading — “Notice to Policy Holders.” It says:

“All premiums are due monthly in advance, and the company’s agent is instructed to call regularly to collect them, but his omission or neglect to do so will not be any excuse for nonpayment. In cases of such omission or neglect, the premiums must be sent to the home office, Toledo, Ohio, stating the number of your policy and the name of the collector.”

So that although this recites that the failure of the agent to call will not be any excuse for not paying, it does not inform the policy holder that it will cause the policy to lapse, but it notifies him that the premium is to be sent to the home office, and under such a notice the policy holder would be entitled to wait at least until the first day of the month had gone by before being required to send the money to the home office, and the notice provides for payment in case the agent neglects to call on the first da}' of the month. And the part of the book — which is a printed blank devoted to the recording of the premiums due the first day of the month — contains a heading providing for the recording of the payment of the premium when it is not paid on the first of the month. One of the headings is “Date when due,’’ and then under subheads are “Day of the month” and “Year.” And then another heading is “Date when paid” and under that again “Day of month” and “Year.” So that the book which was furnished to the collector and left with the insured had in it provisions for recording payments of premiums upon a date other than that on which'they were due, and it would hardly be presumed that it was intended to provide for payments of premiums before they were due, but it provides clearly for the entering of payments after they were due and to keep a record of the date when they were due and of the date when actually paid and accepted byffhe company.

Now, considering these facts, was it error for the court, on the conclusion of plaintiff’s evidence, to direct a verdict in favor of the defendant? We are of opinion that it was; that the evidence offered by the plaintiff did not show as a matter of law that this policy had been forfeited.

The policy being drawn. by the insurer, is to be construed most strongly against the insurer. As was said in Brink v. Insurance Co. 49 Vt. 457:

“It is a fundamental rule in the law of insurance that'the policy shall be construed most strongly against the insurer and liberally in favor of the assured. The policy is written by the insurers. They use their own language and surround and barricade their liability under it with such defenses as they choose to adopt.”

In Yeaton v. Fry, 9 U. S. (5 Cranch) 335, 341, Chief Justice Marshall says:

“’The words are the words of the insurer, and not of the insured.”

And, on the question of forfeiture clauses, our own Supreme Court has expressed itself several times to’ the effect that they should be construed strictly.

In Blackwell v. Insurance Co. 48 Ohio St. 533, 540 [29 N. E. Rep. 278; 14 L. R. A. 431], the court say:

“In this case, on page ten, Johnson, J., refers with approval and in the following language to the views on the subject contained on page seventy-four of May on Insurance: ‘Exceptions in a policy should be strictly construed, and where there are two interpretations equally fair, that which gives the greater indemnity should prevail/ And on page thirteen (27 Ohio St.) the same learned jurist says: ‘Stipulations in a contract providing for disabilities or forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced/ ”

A.nd. in Webster v. Insurance Co. 53 Ohio St. 558 [42 N. E. Rep. 546], the Supreme Court say, in the syllabus:

“Provisions for forfeitures are to receive, where the intent is doubtful, a strict construction against' those for whose benefit they are introduced.
“If it be left in doubt, in view of the terms of the instrument and the relation of the contrdcting parties, whether given words were used in an enlarged or a restricted sense, other things being equal, that construction will be adopted which is most beneficial to the promisee.”

And in Union Central Life Ins. Co. v. Pottker, 33 Ohio St. 459, the Supreme Court say:

“Forfeitures are odious, and there must be no cast of management or trickery to entrap a party into a forfeiture.”

It must not be lost sight of that in this policy of insurance — a very unusual thing — there is no clause of forfeiture and no provision for forfeiture. We, however, are of opinion that under such a policy as this, if the premiums were not paid on or about the date when due, that this would work a suspension at least of the policy and take from the party his right under it until he had paid what was due, and whether the company would be required to accept payment at the time it was offered, might depend somewhat upon the circumstances. It would be unjust and inequitable to permit a party to go for a long time without paying his life insurance premium, even under such a policy as this, and, when he was in bad health, or on his death-bed, to permit him to pay up and revive his insurance policy. The contract of insurance is of such a character that the success of the whole scheme depends upon each .party, every policy holder paying his premiums and paying his dues. A company cannot do business unless the dues are paid substantially as they become due, for the ability of the company to pay the losses as they accrue depends upon the policy holders paying their dues with reasonable promptness.

The question of the character of the contract of insurance is discussed very fully in two decisions of the Supreme Court of the United States, in New York Life Ins. Co. v. Statham, 93 U. S. 24, and Miller v. Brass Co. 104 U. S. 350, 352. We think that under such a policy as this, where there is no clause of forfeiture, that a failure to pay would only work a suspension of the rights of the party under the policy until such a length of time had gone by as would show that the party did not intend to pay and had practically withdrawn, and it would, therefore, be inequitable and unjust to permit him to pay and thus revive the policy. But, where there is no clause of forfeiture in the policy, before the policy can be forfeited, in our judgment, there should be some declaration to that effect on the part of the company and notice given to the insured, so that the insured may not allow a month, or two or three months to go by without any knowledge that his' policy is to be forfeited and finally after his death the beneficiary be deprived of the benefits of the policy.

A case in point is found in Mutual Life Ins. Co. v. French, 30 Ohio St. 240, where a policy of insurance provided for a forfeiture for nonpayment of premium, and where a note was given for a portion of the premium and a check for the other part, the note containing the clause: "If not paid at maturity, said policy shall be null and void.” Neither note nor check were paid. It was held by the court, as stated in the first paragraph of the syllabus:

“The mere fact that the note was not paid at maturity, did not of itself avoid the policy. It gave the insurance company the option of declaring a forfeiture, but this option must be asserted by clear and unequiyocal acts. The clause of forfeiture, being inserted in the note for the benefit of the companj’, may be waived by failure to act, or other circumstances evincing an intention not to claim the benefit of the stipulation. Whether the company has exercised such option, or waived their rights, is a question of fact for the jury, under all the circumstances of the case.”

In this case the note which was given provided upon its face, or in the body of it, that if the note was not paid at maturity the policy was to be null and void; and where such language'as that was used the Supreme Court held that failure to pay the note when it became due would not of itself avoid the policy, but it gave to the company the option to declare it forfeited, if it saw fit, but it might waive that; and whether the company had exercised such an option, or waived the right, was a question of fact for the jury. The whole question is very fully discussed in the opinion. The court say on page 241:

“It cannot be successfully maintained that this clause makes the policy absolutely void upon nonpayment of the note. Under the authorities such a clause, being introduced for the benefit of the insurance company, means that the policy shall be void if the company insist upon it, but that it is their option to say whether this result shall follow or not.”

And they say, on page 251:

“As far as we are able to discover, therefore, there was nothing done to inform Mr. French that his policy was void, up to the sixth of July, 1868, when he went to arrange for the premium of that year, unless we take into account the statements of Simpson, which were left to the jury. We then cannot consider that the company exercised their option to forfeit, and their failure to do so was a waiver of such forfeiture.”

And on page 252, the court say:

“It appears to us that the disposition to prevent and guard against forfeitures of this kind is plainly evinced by the authorities. * * *
“In Georgia Masonic Mut. Life Ins. Co. v. Gibson, 52 Ga. 640, the case was this: Gibson had his life insured, but upon his death the company contended that he had not paid up his dues, and so the insurance had been forfeited. He died in 1870, but in the spring of that year he .had sent the company $35.25 in payment of all’ his dues. The company retained the money till after his death, without notifying him whether it was satisfactory or not. It was held that if the company received and retained the amount, this was a waiver of default. If the amount was not enough to pay past dues, it was the clear duty of the company to have promptly notified him. They should not have retained the money, and remained silent till after the death.”

And, quoting from Teutonia Life Ins. Co. v. Anderson, 77 Ill. 384, the court say:

“It is held that upon a nonpayment of premium at the proper time the company have the right to declare a forfeiture; but if it failed to do so, it would be presumed that it chose to carry the risk, upon the responsibility of the party who had agreed to guarantee the payment. This case also holds that when a company has acknowledged in the policy the receipt of premiums, it will not be allowed to dispute such acknowledgment.”

And on page 254, the court quote from Joliffe v. Insurance Co. 39 Wis. 111, 119, as follows:

“Forfeitures are not favored in the law, and will not be sustained upon mere inferences.”

In a North Carolina case (Woodfin v. Insurance Co. 6 Jones Law Cases 558), it was held that where there was no clause of forfeiture the policy could not be forfeited for nonpayment, but that it was an absolute contract and the company could not claim a forfeiture, but could only look to the personal responsibility of the party liable for the premium. This is the only case we have found where there was no clause of forfeiture in the policy. It was decided a great many years ago, by Chief Justice Pearson, when Judge Ruffin was upon the bench of that state and was one of the court.

In the syllabus, the court say:

“Where, by a policy of insurance, the life of a slave was insured for five years absolutely, without requiring the payment of the annual installment, as a condition of the defendant’s liability, it was held that the insurance money for a loss, was not forfeited by a failure to pay such installment.”

In the opinion, Chief Justice Pearson says:

“Upon the point that the policy was forfeited by reason of a failure' on the part of the plaintiff to pay the annual installment, this court is of opinion with the plaintiff, irrespective of the question of notice. The policy contains no condition, by which it is to be void, if such payment is not made, but insures the life of the slave for five years, absolutely, in this respect — leaving the annual payment of $12.24- to be enforced, not as a condition, but as a part of the consideration.”

Nor does this policy that is before us contain any condition that if the.payment of premium is not made when due that the policy is to become void and cease and determine. There are some expressions in this policy which, it has been urged, indicate that nonpayment of dues might be regarded as a forfeiture of the policy and that the policy might, under certain circumstances, lapse; but there is no express provision of forfeiture, and in view of the authorities holding that where there is a provision of absolute forfeiture it is to be construed strictly in favor of the insured, and may be waived by the insurance company by its conduct, it would seem as though a court ought not to import into an insurance policj" a clause of forfeiture which does not in fact there exist. But, as we have said, a contract of insurance is of such a peculiar character — -whether it is a mutual company or a stock company — it being always to some extent a mutual arrangement, each person in the company depending on all the others paying their dues, it would be unjust and inequitable to permit a person to make his first payment on an insurance policy which contains no clause of forfeiture and permit him to have the. benefit of an insurance contract for the remainder of his life without making any payments of premiums for the benefit of the company or for the benefit of the others who are insured; and we are of the opinion that, if a party under such a contract as this does not pay, on or about the date the premium is due, unless this is waived by the company the just and true rule would be that the rights of the party would be suspended and the policy would be suspended until the amount due was paid; we think it is necessary to protect the rights of all the parties that such should be the law, but not that the insured should forfeit all of his rights under the policy without any provision for it in the contract.

Upon this question of suspension of the policy under these circumstances, ,1 cite May, Insurance (3 ed.) Secs. 343 and 344, where the author says:

“If, however, the policy contains no such proviso, though the charter and by-laws require the payment of annual premiums, the nonpayment of the annual premium when due does not work a forfeiture. Such a policy insures for the number of years stipulated absolutely, leaving the annual payment of the premium to be enforced, not as a condition, but as a part of the consideration agreed to be paid. So if the policy is merely suspended while a premium or installment remains unpaid, a payment, even though upon a judgment recovered in a suit therefor, will revive the policy. But a part payment will not remove this suspension. Where a policy is to be void by nonpayment of a premium, yet capable of revival by subsequent payment, the company is not liable for loss occurring after default and before revivor, nor does it earn premiums during the period of suspension.”

There are very few cases, upon such policies, because it is very unusual that a forfeiture clause is omitted, and the question seems to have seldom arisen. The question still remains whether the conduct of the insurance company wus such that it had waived a suspension of the policy or the rights and benefits under the policy on account of the premiums not being paid when due. That is a question of fact for the jury. Upon this subject of waiver Thompson v. Insurance Co. 52 Mo. 469, is in point.

“Though a contract of insurance requires prompt payment of the premium or the policy will be forfeited, yet the insurers may waive this condition by a habit of receiving" the premium after it is due.”

In this case, on pages 412, 413, the court say:

“In contracts of insurance, as in other contracts, the parties may make the time of the performance of any stipulation of the very essence of the contract. In such case, the contract -becomes utterly at an end, or void, as soon as the default is made. The stipulations in regard to the time of the payment of the premiums in this policy, I do not regard as of the essence of the contract. It was not so regarded by the parties themselves. By their acts and conduct the parties have construed this contract for themselves. It was not regarded by either party aá of the essence of this policy, that the premiums should be paid at the very day they became due.
“The memorandum at the foot of the policy did not give any additional force to the stipulation in the policy, if we may consider it as having any effect whatever. If it had any force it seemed to be looked upon by the parties as a license or invitation to the plaintiff to disregard the exact day of payment and to rely upon the courtesy of the company. The plaintiff pursued-this course, and instead of making his payments on the very day when due, let them lie over for a short time, and still they were received without objection. ,
“The plaintiff was thus induced to believe that a failure of strict payment on the day would not prejudice his rights. q
“The courts have become more liberal in their construction of those sort of stipulations in policies of insurance; formerly it was held, that when in a fire insurance policy it was required that additional insurance could not be taken without first obtaining the consent in writing of the company, to be indorsed upon the policy, it would become void if such consent was not in every case so indorsed. It was not sufficient to give notice of the additional insurance and rely upon the company’s verbal consent thereto.
“The old rule required the consent to be in writing and indorsed upon the policy, but it is now understood to be the settled law of this state, that if notice be given to the company of the additional insurance and no objection is made, the company will be estopped from insisting on a forfeiture of the policy, because their consent thereto was not indorsed as required by the literal stipulation therein.
“So in regard to the payment of premiums, it seems to be well settled that the practice of the company in accepting the same without objection after the day stipulated for the payment, must be treated as a waiver of the exact time as an essential ingredient of the contract.”

I cite also upon the general law of insurance and questions of waiver and claims of forfeiture, without quoting from them, the following cases: Massachusetts B. L. Assn. v. Robinson, 30 S. E. Rep. 918 [104 Ga. 256; 42 L. R. A. 261] ; Mutual Reserve Fund Life Assn. v. Taylor, 37 S. E. Rep. 854 [99 Va. 208] ; 18 Barb. 541; 26 Barb. 536; 65 Mo. 916; United States Life Ins. Co. v. Ross, 42 N. E. Rep. 859 [159 Ill. 476] ; New York Life Ins. Co. v. Statham, 93 U. S. 24; Miller v. Brass Co. 104 U. S. 350, 352.

It is laid down by the Supreme Court of the United States in the two cases last cited that the payment of premium is not a condition precedent, but is a condition subsequent; that the theory that the 'premium by the month or by the year pays for the insurance for that month or year, is not true; that the contract is an entirety, if it be a life insurance policy, to insure the party for his life or the period named in the policy, and the premium is payable in installments.

Under the facts in this case as disclosed by the record — no evidence being offered by the defense — it would seem as though a very strong showing had been made that the company had waived the payment of the premiums upon the first day of each and every month by receiving the payments, month after month, after they had become due; by receiving the payment due in November in the middle of January; in giving to the party a book with the blanks contained therein to which I have referred ; by notifying the party that if the agent did not come on the first day of the month, to bring the premium to the company; by reason of the fact that no notice had been given to the insured that her policy had been forfeited or suspended or had lapsed and no direct notice that it would be forfeited or suspended if she did not pay, and by making the collection on January 14 — ten days before death — and by promising to come at a following or subsequent day and collect the balance that was due, and by actually coming before the death of Mrs. Capped for the purpose of collecting it — on January 23 — and by coming again on January 25, after her death, for the purpose of collecting the premium then due. In all this we have a very strong showing made, that the company had in fact waived its right to suspend the policy for nonpayment' on the day the gamnium was due.

The policy of the law is against forfeitures. The equitable and just doctrine is that if a party gets all that is coming to him and all that is due to him, although it may be a short time after due, lie should not be permitted to forfeit all the rights of the other party, especially if by his conduct he may be deemed to have waived the right to declare such a forfeiture.

We think that the common pleas court erred in directing the jury to return a verdict in favor of the insurance company. All the evidence should have been heard, the defendant given an opportunity to make its defense, and the case submitted- to the jury, under proper instructions from the court. Therefore, the judgment of the court of common pleas will be reversed.


source: Caselaw Access Project

license: Public Domain

text:
    ASSAULT AND BATTERY — DAMAGES—PRACTICE.
    [Wood (6th) Circuit Court,
    April Term, 1903.]
    Parker,, Hull and Haynes, JJ.
    Michael Henning v. John J. Bartz.
    1. Failure to Incorporate Affidavits in Support of, Preludes Review of Motion for New Trial. »

    A reviewing court cannot consider the action of the trial court in overruling a motion for a new trial, where affidavits filed in support of such motion are not incorporated in a bill of exceptions as there is no certificate of the trial court that the affidavits on file contain all the evidence offered upon the motion.

      2. Competent Evidence of Self-Defense in Assault and Battery.
    Where the defense in an action for assault and battery, is self-defense, evidence of the quarrelsome character of the plaintiff and of his general reputation as a quarrelsome and dangerous man is competent where such facts were known to the defendant at the time of the assault.
    3. JUDGMENT MAY BE REVERSED FOR SMALLNESS OF VERDICT.
    Where a verdict in an action for assault and battery is so small as to be clearly contrary to the weight of the evidence as to the injury sustained, a judgment rendered thereon may be reversed.
    Error to the court of common pleas of Wood county.
    M. H. McMillen, S. P. Harrison and N. B. Harrington, for plaintiff.
    James O. Troup and Allen J. Seney, for defendant.
   HULL, J.

(Orally.)

This action was brought in the court of common pleas by Michael Henning, plaintiff in error, against John J. Bartz, to recover damages for an assault and battery, which he claims was made upon him by the defendant. The parties stand here the same as in the court below, plaintiff and defendant. The plaintiff asked for damages in his 'petition in the sum of $5,000.

The defendant in his answer set up that the plaintiff assaulted and struck him, and that what he did, he did in self-defense. The case was tried, an.d a verdict returned in favor of the plaintiff for the sum of one dollar, and the plaintiff prosecutes error to reverse the judgment which was entered upon that verdict, claiming", that although the verdict was in his favor, that it was in an amount so small as to be contrary to the weight of the evidence and contrary to law. One of the claims made by the plaintiff is that he was prejudiced by the absence of a witness -upon the trial of the case, and this was made one of the grounds for a new trial in the court of common pleas upon the motion, and affidavits were filed. It was stated in argument that this witness had been supcenaed and that he had promised to be present, and that the affidavits showed that his testimony was material. It was also stated that upon the trial of the case, counsel for the plaintiff stated to the trial judge that this witness had been subpoenaed and that plaintiff expected him to be present; he did not appear, but no application was made for a continuance of the case nor for a postponement at any time during the trial of the action on this account. It is stated that the testimony of the witness was important, and it is afgued that the court of common pleas should have granted a new trial for that reason. The bill of exceptions, however, does not disclose any of these facts as occurring, either upon the trial of the case or after the trial upon the motion for a new trial; the affidavits are not attached to the bill -of exceptions, and no bill of exceptions was made upon the action of the court in overruling the motion for a new trial upon this ground. A reviewing court cannot take notice of affidavits offered on a motion for a new trial, unless they are incorporated in a bill of exceptions. There is no certificate before us of the court below that these affidavits were the evidence offered upon the motion for a new trial; no certificate that this was all the evidence offered upon the motion; therefore, that question is not properly before us. It may be said, however, in passing, that it is conceded in argument that the testimony of this witness, Henry, would be cumulative only; this testimony being of a character similar to that of the plaintiff below, he claiming that Henry was present at the time of the alleged assault.

One of,the chief claims of error is on the admission of certain testimony on the trial of the case bearing upon the character of the plaintiff and his disposition, and upon the knowledge that the defendant had of this at the time of the alleged assault; that is, bearing upon the character of the plaintiff as to being a fighting man or of a quarrelsome disposition. The record in the case shows that these men met upon the morning of the day in question, and engaged in a conflict, and each one claimed that the other struck the first blow;'the defendant claiming that the plaintiff struck first, and that what he did was in self-defense. The defendant claims that they met at or near a livery stable, had some words in regard to a small bill which the defendant had against him for work, the plaintiff refused to pay it and charged him' with stealing sand, and claims that thereupon after some words, the plaintiff struck him and attacked him, and that to protect himself, he being a shorter man than the plaintiff, he clinched him, and being unable to use his hands as he claimed, he butted him, and that they finally fell, the defendant falling on top of the plaintiff.

The testimony is somewhat conflicting as to what occurred after they fell; the plaintiff claiming defendant struck him several times after he fell, and the defendant being uncertain as to how many times he struck him; the defendant claiming all the time that what he did, he did in self-defense. He said he was afraid of the plaintiff, and was afraid that he would injure him, and then he was asked why he was afraid of him, and answered, because he had “licked so many men.” This testimony was objected to as incompetent — his statement that he was afraid'of the plaintiff because he had “licked so many men.” Prior to that a witness had been called and asked as to the reputation of the plaintiff for being a fighting, quarrelsome man; an objection to the question was sustained by the court, and an offer was made to prove that he was of a quarrelsome, fighting disposition. .After that a witness by name of Knoke was called, and testified, as shown by the record on page forty-one, that he saw plaintiff hit a man by the name of Slaughterback and also some other man. Objection was made to that, and the question was asked:

“What do you know of his fighting, if anything?”

Objection was made, overruled and exception taken, and he answered:

“I saw him hit Sam Slaughterback.”

Then he is asked another question: “Who else have you seen him hit, if anyone ?” and he gave the name of the other man.

No objection was made to that question and no exception taken. The testimony of the defendant and perhaps of the plaintiff tended to show that the defendant, Bartz, -had knowledge of the fact that Henning had fought, or struck or whipped Slaughterback. After the fight, it was testified, that Bartz said, “I’ll have you to understand that I am no Slaughterback,” and some other remarks showing he had knowledge of his having had trouble with Slaughterback, so that these objections raise the question as to whether in an action of this kind it is competent to show the character and disposition of the plaintiff — competent to show that-the plaintiff has assaulted and whipped other men, and that the defendant at the time of the fight or the assault had knowledge of this. It is claimed by the plaintiff in error that the general character of the parties, in a civil action, is not in issue, and that it is not competent to show what the character and reputation of the parties is, and in a case of assault and battery it is claimed that the character of the plaintiff for peaceableness is not in issue; and this is the general rule in civil actions, but there is in this case the element of self-defense, the defendant claiming that he acted in self-defense, and claiming that under the circumstances in view of the character of the plaintiff, and in view of his knowledge of his character, he had a right to do what he did; and had good reason to believe that he was, at the time, in danger. It is true that the plaintiff in this case denies that he assaulted the defendant, but if the testimony is competent upon the claim of the defendant that what he did, he did in self-defense, then it was properly admitted. There seems to be no doubt that in a criminal case testimony of this kind is competent, where the defense is self-defense; the state of mind of the defendant being one of the things to. be considered, and the question as to whether he believed, and had good reason to believe that he was in danger, and the Supreme Court has said in the case of Marts v. State, 26 Ohio St. 162:

“On the trial of an indictment for murder, the prisoner may, ■ for the purpose-of showing that the homicide was justifiable on the ground of self-defense, prove that the deceased was a person of violent, vicious and dangerous character, and that that character was known to the prisoner at the time of the rencontre between them. Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground J;o believe, that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger.”

This was an indictment for murder, but the same principle applies here. This question is discussed in the opinion in the case, and it is laid down there as the law that in a case where self-defense is claimed, the general character of an alleged assailant may be shown, and his general reputation, upon the theory that if he had the reputation of being a dan-í;c~ous man, it probably had come to the knowledge of the defendant. If you may show the general reputation and character of an alleged assailant, we think it is also competent and proper to show specific cases of assault — specific instances which have evinced the character of the part}' and which have come to the knowledge of the defendant; and the rule in a criminal case should, we think, be the rule in civil cases, and it has been held in Culley v. Walkeen, 45 N. W. Rep. 368 [80 Mich. 443], that in a civil case testimony of this kind is competent. In the syllabus the court says:

“The defendant testified that he- knew plaintiff to be a powerful and dangerous man, and that he was afraid of him, and that he had previously seen a fight between him and a policeman in which the plaintiff was the aggressor: Held, that the testimony of the policeman as to what occurred on that occasion was competent. * * * In an action for assault and battery, evidence as to the quarrelsome character of the plaintiff is inadmissible, unless such fact was known to the defendant before the assault.”

And in the opinion, the court say:

“The defendant gave testimony in his own behalf, and testified that he knew the plaintiff; that he was a powerful man and quarrelsome; that he had seen a fight between the plaintiff and a policeman and another man,, and he detailed what he saw when the policeman tried to arrest him, and that he stood in fear of him; that plaintiff was the aggressor, and what he did was simply in self-defense.”

This was ruled out by the trial court, and this the supreme court of Michigan held to be error; they say on page 369 :

“The court excluded the testimony. It should have been admitted for the purpose of showing to the jury the disposition and strength of the man. It would have some tendency to show whether his conduct on that occasion was calculated to inspire terror in the mind of the defendant, and to stand in fear of him as a dangerous man.”

Turner v. State, 3 Circ. Dec. 263 (5 R. 537) bears somewhat on this subject. The circuit court of Hamilton county held that evidence of a former assault .that came to the knowledge of the defendant in a criminal case was competent. They say in the.syllabus:

“The evidence was competent, and should have been received. If not strictly a part of the res gestae (which it probably was), it was admissible to show that the deceased had a knife shortly before his death, and also as tending to show the character of the deceased as a vicious and dangerous man, and that the defendant knew this.”

It seems to be clear from the authorities that testimony of this kind tending to show the character of the plaintiff in such a case, if it comes to th'e knowledge of the defendant, is competent, and it must be competent, for it will appear upon a moment’s consideration that if this man was assaulted as he claims he was, he would take into consideration the character of the man who assaulted him in considering whether he was in danger or not, and the amount and force he should use in defending himself; and there is evidence in this record tending to show that Bartz had knowledge of the character that he claimed the plaintiff had. He testified that he was afraid of him because he. had whipped so many men, and he had heard of it, and there was testimony tending to show that he had heard of this assault upon Slaughterback. We are not entirely clear that testimony as. to the character of the party in a civil action for assault, where it had not come to the knowledge of the defendant, is competent, but it is not necessary to decide that, in this case. The Supreme Court of 'the'United States, however, and this court following that court and others, held in a murder case, where threats of violence were made against the defendant by the deceased, and where the defense was self-defense,' that testimony, as to such threats, was competent, although the threats had not been communicated to the defendant, upon the ground, as put by the Supreme Court of the United States, that the defendant had a right to have the jury know the feeling which the deceased had towards him as bearing upon the question whether or not the deceased made the attack upon the defendant in the manner he claimed he did; this kind of testimony, the Supreme Court of the United States say, is admissible in a homicide case where the defense is self-defense.

We therefore hold, both upon principle and upon authority, that this testimony of the general reputation and character of the plaintiff as a fighting and quarrelsome man, as admitted on the trial of this case, was competent. The evidence as to whether Bartz knew of these specific former assaults, is not as clear as it might be, and yet there is testimony which strongly tends to show that he^ had heard of this assault upon Slaughterback and had heard of various assaults.

Objection is made to the charge of the court, or to the refusal to give certain charges requested. They were not asked to be given before argument, and we think the court covered the requests substantially in its general charge. The court charged upon the effect of the testimony just referred to, and we- think there was no error in what the court said upon that subject. The court limited the effect of that testimony very carefully, and we think strictly within the law, at least the plaintiff in error cannot complain.

One other question was objected to. Defendant was asked if he was afraid of plaintiff, and he said he was, and he was asked why, and that was objected to, and he said that he had heard of his “licking so many men.” That testimony is in line with the testimony already discussed, and we think it was admissible.

It is claimed by the defendant in error that the fact that the verdict was so small cannot be a ground of error. We think it can be, although that is not one of the grounds mentioned in the new trial statute, but if the verdict is so small as to be clearly contrary to the weight of the evidence, considering the injury sustained, we think that a judgment might be reversed on that ground. If a man had lost an arm or a leg or suffered some great injury by a malicious assault, and a jury should return a verdict for a half a dollar or a dollar, we think such a verdict would be against the weight of the evidence and contrary to law, and should be set aside, and it is claimed that this verdict is against the weight of the evidence. If is not necessary to discuss the evidence any further. As to'who began the assault, the evidence is conflicting, and the question was properly submitted to the jury, and if, as the defendant claims, the plaintiff began the assault, then the plaintiff cannot complain if he received punishment by way of defense, and the law will not measure very nicely the defense a man makes against one who assaults him. In the struggle it seems that they fell, and according to the testimony of the plaintiff, Bartz struck Henning after he was down; struck him once at least after hostilities had ceased, and when apparently there was no reason for striking him, but it does not appear that any serious injury was received on account of that blow, and the jury returned a nominal sum for damages, as they had a right to.

There are some things in the testimony of the plaintiff that indicate that this was a fight rather than an assault. The plaintiff testifies that after the trouble had proceeded awhile he said to Bartz, “I have enough, and I want you to get off,” and he said Bartz stopped when he said that. Such an expression as that would tend to indicate that Henning did at the time regard it as a fight rather than anything else; that he was in a fight rather than being assaulted maliciously. He said he had enough and asked Bartz to get off, and the testimony shows that immediately after that, the battle ended.

We do not feel that we would be justified in reversing this judgment on the ground that the verdict was against the weight of the evidence. After the fight, or the trouble was over, the plaintiff met a witness who testified that he said to him “I would have whipped him if he had not fouled me,” which has a very strong tendency to show the view that Hen-ning took of the affair at the time. It does not appear that plaintiff received any very serious injury; he was bruised and cut some possibly, but was about town as usual, soon after. We have been shown a photograph, which is attached to the bill of exceptions, which shows plaintiff to be a strong, heavy man, with a facial expression that would indicate that if he was in a fight he would in all probability try to make his antagonist remember it and endeavor to avoid trouble with him in the future. The evidence tends to show that the plaintiff was a larger man than Barte, and considerably taller, and that was a thing that Bartz had a right to take into consideration. This is one of those cases peculiarly for a jury, and we find no error in the case prejudicial to the plaintiff. The judgment of the court of common pleas will therefore be affirmed.


text:
    CRIMINAL LAW — INDICTMENT.
    [Wood (6th) Circuit Court,
    April 25, 1903.]
    Parker, Hull and Haynes, JJ.
    Ezra H. Smith v. State of Ohio.
    Necessary Averments to Charge Crime Under Sec. 6830 Rev. Stat.
    In an indictment under Sec. 6830 Rev. Stat., for threatening to accuse another of a crime punishable by law, an averment that defendant threatened verbally and in writing to accuse another of burning his own building with intent to defraud, is not sufficient to charge a crime under the statute, but the indictment must show that the building was insured and that the defendant threatened to charge the. owner with burning it with intent to prejudice the insurer, and without such allegation the indictment is insufficient.
    Jas. O. Troup, attorney for plaintiff in error.
    E. G. McClelland, prosecuting attorney, and F. A. Baldwin, for state.
   HULL, J.

Two separate petitions in error were filed in these, cases [Smith v. State and Still v. State], but only one bill of exceptions, and the cases are, to all intents and purposes, one case. The plaintiffs in error were indicted and tried jointly in the court of common pleas on a charge of blackmail under Sec. 6830 Rev. Stat. They were both found guilty and each sentenced to a term in the penitentiary, and these proceedings in error were brought to reverse that judgment.

It is claimed that the court below erred in overruling a motion to quash the indictment, in overruling a demurrer to the indictment, and that the verdict and judgment are against the weight of the evidence.

First considering the question as to whether the court below should have sustained a demurrer to the indictment, it is claimed that the indictment is bad because it does not charge an offense against the laws of the state of Ohio. As stated, the indictment is founded upon Sec. C830 Rev. Stat., which provides that:

“Whoever, either verbally or by any letter or writing, or written or printed communication, sent or delivered by him, demands of any person, with menaces, any chattel, money or valuable security, or accuses, or. knowingly sends or delivers any letter or writing, or any written or printed communication, with or without a name, or with any letter, mark, or designation, accusing or threatening to accuse, any person of a crime punishable by law, or of any immoral conduct which, if true, would tend to degrade and disgrace such person, or to expose or publish any of his infirmities or failings, or in any wav to subject him to the ridicule or contempt of society, or to do an injury to the person or property of any person, with intent to extort or gain from such person any chattel, money, or valuable security, or any pecuniary advantage whatsoever, or with intent to compel the person threatened to do any act against his will, with the intent aforesaid, shall be imprisoned in the penitentiary not more than five years nor less than one year, and may be fined not more than $1,000.”

The indictment charges, that for the purpose of obtaining money, to wit: $260, the defendants charged one Cyrus W. Noble with the crime of arson. The indictment avers: “ * * * did threaten him, the said Cyrus W. Noble, to accuse him, the said Cyrus W. Noble, of having committed the crime of arson, and with having unlawfully set fire to and burned his own hotel building in Hoytsville, Wood county, Ohio, of the value of $1,000, with intent to defraud; which said act and crime is punishable, under the laws of Ohio, by imprisonment in the penitentiary, and which if true would tend to disgrace and degrade him, the said Cyrus W. Noble, by then and there wilfully and maliciously and knowingly did verbally say and state to him the said Cyrus W. Noble, the words following, to wit, T (meaning him the said Ezra Smith) understand that you (meaning Cyrus W. Noble) said that you would pay anyone that gave you any information about who burned your hotel (meaning the hotel of Cyrus W. Noble in Hoytsville, Wood county, Ohio). We (meaning him the said Ezra Smith and Link Still) think we know who done it. We thought we might make you (meaning him the said Cyrus W. Noble) a party to the burning of it (meaning said f\otel building belonging to said Cyrus W. Noble). If you do not give us (meaning the said Ezra Smith and Link Still) $250 we are going to make you (meaning said Cyrus W. Noble) trouble. I will see the other man (meaning said Link Still) about it.’

“And thereafter on the twenty-sixth day of April of the same year in pursuance of, and in furtherance of said unlawful confederacy and conspiracy of them, the said Ezra Smith and Link Still, and with the unlawful, wilful and malicious purpose to extort money from him, the said Cyrus W. Noble, they, the said Ezra Smith and Link Still, did then and there unlawfully, wilfully and maliciously send to him, the said Cyrus W. Noble, a certain writing without any name subscribed thereto, directed to C. W. Noble, he being the same person as the Cyrus W. Noble aforesaid, and containing a. wilful and malicious threat, with menaces, to injure him, the said Cyrus W. Noble, by therein accusing him of said crime of arson aforesaid, which said writing is in the words and figures following to wit:

“ ‘Hoytsville, O., 4-26, 1902.
“ ‘Mr. C. W. Noble: I understand that Ezra Smith (meaning the Ezra Smith heretofore named) our (meaning them the said Ezra Smith and Link Still) head man was to see you (meaning said Cyrus W. Noble) and you did not * * * it will take money (meaning the money of Cyrus W. Noble aforesaid) before the thirtieth to keep still. Call and see him (meaning said Ezra Smith) or we (meaning said Ezra Smith and Link Still) will get your man and you with him. Do not think this is a bluff.’ (Thereby meaning that unless the said Cyrus W. Noble would before the thirtieth of April, A. D. 1902, pay and deliver to them the said Ezra Smith and Link Still, said sum of $250 so by them demanded from the said Cyrus W. Noble on the twenty-fourth day of April, A. D. 1902, as aforesaid, they, the said Ezra Smith and Link Still, would cause and procure the arrest and prosecution of him, the said Cyrus W. Noble, for said crime of arson in having unlawfully burned his said hotel building in Hoytsville, Wood county, Ohio, with intent to defraud. With the intent and purpose then and there and thereby unlawfully, wilfully and knowingly, by means of said verbal and written communications aforesaid and with the menace aforesaid, to extort money of the amount and value of $250 from tue said Cyrus W. Noble.)”

The indictment sets forth fully the words claimed to have been used verbally by the defendants and the writing that it is claimed was sent by the defendants to Dr. Noble, and while the indictment avers that the defendants charged Noble with the crime of arson, it goes on further to ■date that they charged him with burning his own building; the language set forth in the indictment, and the averments in the indictment show that the defendants did not charge Noble with the crime of arson, and it was not intended in the indictment to charge that they did. The ,crime of arson is unlawfully burning the building of another, and not one’s own building, and is define,.! in Bouvier’s Law Dictionary and also in Sec. 6831 Rev. Stat. So that it is apparent it is not charged in this indictment that these defendants accused or intended to accuse Dr. Noble of the crime of arson, but that the indictment avers and intends to aver that they did accuse him and threatened to accuse him of setting fire to and burning his own building, to wit, “His own hotel building, with intent to defraud,” as is alleged in the indictment.

It is claimed by counsel for the state that this is a sufficient allegation under the blackmailing statute to charge the offense; that it is not necessary to go into the crime in detail, but that'it is sufficient to charge it generally, and that this language is sufficient to come within the language of the blackmail statute which I have read, Sec. 6830 Rev. Stat., which makes it a crime to make certain threats, either verbal or in writing, to another or to threaten to accuse another of certain things, and among them is the commission of a crime punishable by law, with intent to extort, etc. If the language of the indictment brings the offense charged within the statute, then it is sufficient to sustain it upon demurrer.

The burning of one’s own building is not a crime under the laws of this state, unless that building is insured, for there is no statute in this state making it a crime to bum one’s own building unless the building is insured and is burned with the intent to prejudice the insurer. This crime is covered by Sec. G832 Rev. Stat., which is as follows:

“Whoever maliciously burns or sets fire to any dwelling house, kitchen, smokehouse, shop, office, barn, stable, storehouse, warehouse, still-house, mill, pottery or any other building, of'the value of fifty dollars, or any goods, wares, merchandise, or other chattels of the value of fifty dollars, the same being his own property, and insured against loss or damage by fire, with intent to prejudice the insurer, shall be imprisoned in the penitentiary not more than twenty years.”

It is clear that this indictment was intended to charge that these defendants accused and threatened to accuse Doctor Noble with the violation of this section of the statute.

The crime threatened to be charged against Doctor Noble is set forth in the indictment, and the question is whether the language of the indictment does aver and charge that the defendants accused or threatened to accuse Doctor Noble with the commission of a crime; if the language used by the defendants did not accuse Doctor Noble with the commission of a crime, then it was not a crime or an' offense tending to degrade or disgrace him for them to say what they did to Doctor Noble. The statute does not make it a crime to make any threats against another person or to accuse another person of anything, but the statute sets forth what the was not a common law offense like arson, but was made a crime by statute, was formerly called in the statute an attempt to rob. The offense of burning one’s own building, with the attempt to prejudice the insurer, was not a common law offense like arson, but was made a crime by statute. The blackmail statute, like all other criminal statutes, is to be strictly construed, and its language is not to be extended beyond its fair interpretation to the prejudice of the accused. The indictment, to be good against demurrer, it is not necessary to say, must charge a crime against the defendants. It is not sufficient that the language of the indictment may possibly advise the defendants of the general nature of the charge that the state makes against them. No man can be put on trial for a felony under the constitution and law of this state, until an indictment has been found against him, charging him with some crime.

This indictment sets forth, first, that the defendants accused Dr. Noble of arson, but that cannot be considered in deciding- this question, because it appears from the indictment that it was not arson that; they threatened to accuse him of. The averment in the indictment was that they threatened to accuse him of burning his own hotel- unless he gave them this money. That is the sum and substance of the charge in the indictment. Is this language sufficient to charge that the defendants threatened Noble — threatened to accuse him of the commission of a crime? The indictment does not aver that this property was insured in any sum; it does not aver that the defendants threatened to accuse Noble with burning his property with the intent to prejudice the insurers. It is not a crime under the statute, under Sec. 6832 Rev. Stat. or any other statute of this state, for a man to burn his own building, unless it is insured There may be reasons why a man might wish to get a building out of the way. Many reasons may be suggested; the burning of it might be the most inexpensive and expeditious way of removing it. There is no law in the state, either of statute or case law, to prohibit a man thus disposing of his own property. There is nothing sacred about a house or building that prevents one from burning- his own so long as he does not endanger the property of others.

It is averred in the indictment that the defendants threatened to accuse him of burning this building with intent to defraud. There is not, however, any statute in this state making it a crime to burn a building with intent to defraud. A building may be burned with intent to defraud a mortgagee, or it might be burned with the intent to deprive a woman of her dower; but there is no statute on the subject. It might be málicious destruction of property, but no such charge as that is made.

It is settled in this state, by a decision of the Supreme Court, that an indictment under the blackmailing statute must charge that the defendant accused another of a crime or threatened to accuse him of a crime, and the allegation in the indictment must be sufficient to show that a crime was charged. A case was cited by counsel for the state, Elliott v. State, 36 Ohio St. 318, to the effect that it was not necessary to set forth the amount of the insurance. That is undoubtedly true. The first paragraph of the syllabus is:

“An indictment under Sec. 22 Chap. 3, Title 1, of the penal code of 1877, as amended (76 O. L. 167, 168), which specifically charges that A, B and C, with the intent to extort and gain a certain amount of money, of the value of $500, and certain valuable securities of the value of $300, the property of W, did wilfully and feloniously accuse W of the crime of burning his barn, which was insured, and was of the value of $350, with intent thereby to prejudice the insurer, is not defective for want of any of the following averments:
“1. For want of averment that the accusation against W was false. The truth or falsity of the accusation made by defendant is not an essential element of the crime.
“2. Nor because it does not state the name of the insurer of the amount of the policy.”

But the indictment did charge that the building that the person was accused of burning was insured, and that he was accused of burning it with intent to prejudice the insurer. The case of Mann v. State, 47 Ohio St. 556 [26 N. E. Rep. 226; 11 L. R. A. 656], is directly in point. The first paragraph of the syllabus is:

“In an indictment under Sec. 6830 Rev. Stat., for verbally accusing another of a crime punishable by law, to wit, administering poison to and thereby killing two colts, the property of the defendant,' with the intent to extort and gain from the accused certain chattel property and pecuniary advantage, the words ‘punishable by law’ are not a sufficient averment of the crime, but the act of which the party was accused must be alleged as having been done maliciously, and with intent to injure and destroy the animals, and without such allegation the indictment is insufficient.”

The court, 'through Judge Dickman, say in the opinion on page 560:

“To accuse one of administering poison to and killing a colt or other domestic animal, the property of another, -without further imputation of criminal intent, is not to accuse one of a crime under the statute. The poison may have been administered accidentally, or thrpugh a mistake. B)- Sec. 6852 Rev. Stat., it is a crime punishable by fine or imprisonment to maliciously administer poison, of any sort whatever, to any foal, filly, or other domestic animal therein referred to, the property of another, with intent to injure or destroy the same. And Sec. 6851 Rev. Stat. also subjects to fine or imprisonment any person who maliciously kills any such animal, the property of another. Such administration of poison and thereby killing, must be attended with the element of malice to constitute the statutory crime. It is charged in the indictment, that the defendant, with the intent to extort and gain from William Brigham and Almyra Brigham, his wife, certain chattel property and a pecuniary advantage, unlawfully and knowingly did verbally threaten and accuse them of having committed the crime of administering poison to and. killing the two colts, but not having done so maliciously, unlawfully, or knowingly. There is, indeed, no allegation in the indictment, that the defendant accused them of a crime of which they could be legally convicted and punished. It is the ancient rule of our law, often reiterated, that penal statutes are to be construed strictly, and cannot be extended by implication to cases not falling within their terms.” And the court hold that this indictment was bad. They say further in the opinion, page 561:
“It is urged in argument, that in alleging the offense in the indictment, it is safe to use the words of the statute; but, as said in Hagar v. State, 35 Ohio St. 268, while in charging an offense in an indictment it is not good practice to omit the words of the statute, it is not to be inferred that an indictment which simply pursues the language of the statute is sufficient, for in many cases something more is required. If in the case at bar, the defendant had been charged only with having made accusation of a crime with intent to extort, without specifying the crime, the indictment would manifestly have been insufficient. It was requisite, therefore, to supplement the words of the statute with a description of the crime’, as it may have been intended to do in the indictment, but in which the crime in fact is insufficiently alleged.”

So it is held in this case that it is necessary in such an indictment as this to describe the crime, by sufficient allegations, which it was threatened to accuse the person of. The indictment here does not show, and it is not alleged, taking the indictment all together, that these defendants accused or threatened to accuse Dr. Noble of the commission of any crime known to the laws of the state of Ohio. It may have been intended, and probably was intended, as the Supreme Court say in Mann v. State, supra, to describe the crime that it was claimed the defendants threatened to accuse Dr. Noble of, but the language in the indictment is not sufficient to do so; thereis no allegation that the property was insured and no allegation that Noble was threatened with being accused or was accused of burning-property with intent to prejudice the insurer. For these reasons it seems do us very clear that the demurrer to the indictment should have been sustained, and that the court therefore erred in overruling the demurrer.

It was urged by counsel for plaintiff in error that the court erred in not sustaining the motion to quash the indictment for the reason that two offenses are stated in the indictment instead of one, to wit, the offense of threatening to accuse verbally on April 24, and the offense of threatening to accuse in writing on April 26. In view of our opinion on the sufficiency of the indictment, it will not be necessary to discuss this question, at any length. We are of the opinion, however, that the indictment is not bad for duplicity; that it does, in fact, only charge one offense. The gist, the gravamen, of the offense charged here is the attempt to extort money. It was formerly called an attempt to rob, as I have already stated. What, according- to the indictment, the defendants were intending and attempting to do was to extort money from Dr. Noble by means of threats, as one might be charged in robbery, that by means of force and violence he robbed “A,” and in such a case it is not necessary to set forth the force and violence, nor the threats he used. The verbal threats occurred on April 24. They refer to a future meeting. The letter on the twenty-sixth refers to what had already been done, and it seems to us that it was a continuous transaction — that it was one transaction. If one of these parties, or both of them, had met Dr. Noble on one day and had used the language set forth in the indictment verbally and said they would see him again shortly, and had met him within a short time after and had used the language set forth in the letter, it seems to us it would be one transaction. The fact that two days intervened does not vary the principle. It was one attempt to extort money from Dr. Noble by the use of threats. We hold, therefore, the indictment was not bad for duplicity.

We find some authorities holding that it is not necessary to set forth the language used, in the indictment. On the other hand, Wharton lays down the principle that it is necessary when the threats are in writing. It is not necessary for us to pass upon this in deciding this case, in view of our holding upon the sufficiency of the indictment, as heretofore stated. But we may say that so far as we have discovered, there is no authority holding that where the threats are verbal, it is necessary to set them forth in the indictment, but the authorities that we have examined hold that it is not necessary to set forth the language of verbal threats, but that their substance is sufficient.

It is not necessary for us to discuss the weight of the evidence. We hold that the indictment does not charge a crime. The court erred in overruling the demurrer, and there being no legal indictment, the judgment of the court of common pleas must be reversed, and the defendants discharged.

There is another matter about which I should say a word. The indictment, after charging the alleged offense, contains this, “which said act and crime is punishable under the laws of Ohio by imprisonment in the penitentiary, and which if true would tend to disgrace and degrade him, the said Cyrus W.' Noble;” these allegations are mere conclusions of the pleader upon the facts stated in the indictment. The language alleged to have been used by defendants does not show that the offense charged was one punishable by imprisonment in the penitentiary, and does not show that, if true, it would tend to degrade or disgrace Dr. Noble. It would not tend to disgrace or degrade a man to charge that he burned his own building, unless the charge contained the,elements of a crime, or some other element which it would be necessary to plead, showing the transaction was of such a character that the charge would have a natural tendency to degrade and disgrace a man.

Nothing of that kind is alleged in the indictment. The charge that Dr. Noble burned the building with intent to defraud, or the threat to accuse him of that, is not sufficient; no facts are set forth showing that the burning of the building would defraud anyone, and the mere charge that he burned the building “with intent to defraud,” without stating how, or whom, is not sufficient.

The judgment is reversed and the defendants discharged.


author: PARKER, J.

text:
    JUSTICE OF THE PEACE.
    [Lucas (6th) Circuit Court,
    July 3, 1903.]
    Elwood B. Squire v. Wheeling & Lake Erie Ry. Co.
    1. Jurisdiction of Justices of Peace in Actions Against Railway Companies.
    The jurisdiction of justices of the peace in actions against railway companies is defined and limited by Sec. 6478 Rev. Stat., which provides that such an action may be brought before a justice of the peace in the township in which the president of the company may reside or in any township into or through which the road owned or leased by such company may be located. Section 384 Rev. Stat., which provides that where a summons, issued by a justice of the peace, against a householder, or freeholder resident of the county, is accompanied with an order to attach property, the jurisdiction, of which is coextensive with the county, does not include railway companies. Hence, a justice of the peace has no jurisdiction of an action against a railway company whose road does not enter the township and whose president is not a resident therein, although the summons in the actions is accompanied by an order of attachment.

      2. Filing Motion not an Appearance.
    The filing of a motion for an interpleader after judgment does not amount to an appearance.
    Error to the court of common pleas.
    William J. Gill, for plaintiff in error.
    C. A. Seiders, for defendant in error.
   PARKER, J.

Squire brought an action against the Wheeling & Lake Erie Railway Company upon a claim for wages of an employe, which he said had been assigned to him, before a justice of the peace of Washington township in this county. Under the provisions of Sec. 584 Rev. Stat., as amended April 19, 1898 (93 O. L. 146), he filed an affidavit that the claim was for labor, and caused a writ of attachment to issue against the defendant railroad company, and proceeded to judgment in that jurisdiction, upon the [theory that he might do so by virtue of said section, although said railroad company had no line of railroad passing through or entering into Washington township and had no principal or other office there, and had no officer residing there.

In the case of Kelly v. Flanagan, 11 Circ. Dec. 111 (20 R. 391), we held (because we felt obliged to so hold, and not because we wanted to by any means) that a natural person might be proceeded against in that way. After judgment against the railroad company, it filed before the justice a motion for an interpleader with t'he necessary affidavit, setting forth that another person, to wit, the employe, claimed to be entitled to this money, but that was disregarded by the justice. It will be observed that it came a little late (after judgment) but on the same day. Thereupon the railroad company filed its petition in error in the court of common pleas to reverse said judgment, on the ground that the justice had no jurisdiction over it, and in the petition in error, which was verified, set forth the facts that I. have mentioned — that its line of railroad did not enter into Washington township; that it had no officer and no office there, and the judgment was reversed by the common pleas court.

Squire prosecutes error to this court and asks that the judgment of the court of common pleas be reversed and that of the justice affirmed.

Section 6478 Rev. Stat. provides where á railroad company may be sued before a justice of the peace and how it may be served with process; and the provision as to where suit may be instituted is that it “may be brought before a justice of the peace * * * in the township in which the president of the compan)' may reside, or in any township into or through which the road owned or leased by said company may be located, whether such company be foreign or created under the laws of this state, and whether the charter thereof prescribes the.place where sitit must be brought against it, or the manner or place of service of process thereon;” and that is the only place where a railroad company may be sued, unless it voluntarily submits to the exercise of jurisdiction elsewhere or unless Sec. 584 Rev. Stat. is applicable to a railroad company. But Sec. 584 provides:

“No householder or freeholder resident of the county shall be held to answer a summons issued against him by a justice in a civil matter in any township of such county other than the one where he resides, except as otherwise provided by Sec. 583,” and in the cases following:

Among the cases in the fourth paragraph of this section is this:

“Where the summons is accompanied with an order to attach property the jurisdiction is coextensive with the county.” Except in certain counties.

Now, that transposed, 'would make it read so as to amount to this: That where the summons is accompanied with an order 'to attach property the jurisdiction of the justice shall be coextensive with the county against a householder or a freeholder resident of the county. But it is quite ap--parent that a householder or a freeholder is a nátural person, and that this does not apply to .a railroad company, which is an artificial person. A railroad company certainly is not a householder nor a freeholder, and that is all that neéd to be said 'on this point.

It is urged that by the filing of the motion for an interpleader, the railroad company entered its appearance and cannot now question the jurisdiction of the justice; but we are' of the opinion that that was not the result of the filing of this paper. If it had been any paper that might properly have been filed at that time before the justice in the case — if it had invoked any action that it would have been proper for the justice to take after judgment in the case, then we would hold otherwise; as, for instance, where a person within the statutory period gives notice of an appeal, or enters into bond for the stay of execution, he cannot thereafter question the jurisdiction of the magistrate. We think such action as was taken here after judgment does not amount to an appearance.

We are of opinion that the judgment of the court of common pleas was right, and it will be affirmed.


text:
    CARRIERS — TRIAL.
    [Lucas (6th) Circuit Court,
    July 3, 1903.]
    Haynes, Parker and Hull, JJ.
    Pennsylvania Company v. Christian C. Yoder and James H. Sullivan.
    1. Bill of Lading, Ohio Contract, When.
    A' bill of lading which provides for the delivery of goods or chattels at a point within this state is an Ohio contract and subject to the rules applicable to such coiitracts laid down by the courts of Ohio.
    2. Admission of Evidence of Defenses not Pleaded Without Objection— Effect.
    In order that a common carrier may avail himself of the stipulations of a bill of lading as a modification of his common law liability for injuries to the goods of another while in his charge, such stipulations should be pleaded, but where the bill of lading is introduced in evidence without objection and these questions presented and considered without objection the court will consider them without regard to'the fact that the terms of the contract may not be sufficiently pleaded.
    3. Burden on Common Carrier, When.
    Where a common carrier ■ relies upon the stipulations of the bill of lading to secure immunity from liability for the loss of goods intrusted to his care, the burden is on him to prove that the loss was occasioned without his fault.

      4. Contracts Exempting from Negligence, Void.
    Common carriers cannot, by contract, exempt themselves from liability for full damages for a loss occasioned by their own negligence, or that of their servants, nor can they legally stipulate for a partial exemption from liability caused by like negligence. Hence, a provision in a bill of lading, that the liability of the carrier for the loss of horses shall not exceed $100 for each horse, will not exempt the carrier from liability for the full value of horses lost through his negligence or that of his servants.
    Eeroe to court of common pleas of Lucas county.
    R. W. Kirkley and E. W. Tolerton, for plaintiff in error.
    S. H. Kelley and John M. Carr, for defendants in error.
   PARKER, J.

The action in the court below was by Yoder and Sullivan against the Pennsylvania Company to recover on account of the loss of two horses, which had become injured in being conveyed over the road of the defendant company, by the defendant as a common carrier, so that upon the arrival of the horses at their destination one of them had to be killed by order of the humane officer, and the other was so injured that it died in the course of eight or ten days. These horses, with several others, were shipped from Indianapolis, Indiana, to Toledo, Ohio, over the Pennsylvania road, and were brought around by the way of Mansfield, Ohio. The bill of lading provides for their transportation over this route and their delivery at this city, and because of the provision that they were to be delivered here and that that part of the contract was to be performed in Ohio it became an Ohio contract and subject to the rules applicable to such contracts laid down by the courts of Ohio.

The plaintiffs in their petition not only aver the facts showing that these horses were received by the defendant company as a common carrier (which devolved upon the company the duty of bringing the horses through in safety) but they aver that the injury to the horses was due to the negligence of the company, and this averment, if sustained, would have an influence upon the measure of damages.

The recovery in the court below was for $275 for the two horses, though the bill of lading contains a provision that the liability of the carrier for loss of horses shall not exceed $100 for each horse. That provision of the bill of lading not only fixes a valuation in case the horses were injured or destroyed without the company being at fault, but even in case it were negligent; and that provision, and the insistence of the company that that was a valid limitation, presents one question for the consideration of this court.

The answer of the defendant denies the negligence charged and avers that the horses were loaded into the car by the plaintiffs and were in charge of said plaintiffs while in transit, and that “said horses were loaded by the plaintiff in said car in a negligent and careless manner, in that said horses were placed loose in said car and were not tied or fastened in any manner while they were therein, and that any damage which ■ said horses may have sustained in shipment was caused by said negligent and careless loading by the plaintiffs and without the fault or negligence of defendant.” And the rule laid down by the trial judge as to the burden of proof upon these charges of negligence and contributory negligence, presents another question for the consideration of this cou'rt in this case.

The answer does not set forth the terms of the bill of lading which are relied upon here as a modification of the common law liability of the railroad company. We are of opinion that the rules of pleading require that, in order that advantage may be taken of those special stipulations, they should be pleaded; but the bill of lading having been introduced in evidence, without objection, and these questions apparently presented and considered without objection, and it having been argued here as if they were presented in due form by the record, we have considered them without regard to the fact that the terms of the contract may not be sufficiently pleaded.

One of these specifications I have already adverted to — that is, that the liability of the shipper was to be limited to $100 for each horse, even though the company were guilty of negligence in conveying the horses.

Another provision that was discussed by counsel is this:

“That the said shipper is, at his own sole risk and expense, to load and take care of, and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same, and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same.”

Also:

“That the said shipper is to inspect the body of the car or cars in which said stock is to be transported, and satisfy himself that they are sufficient and safe, and in proper order and condition, and said carrier or any connecting carrier shall not be liable, on account of any loss of or injury to said stock happening by reason of any alleged insufficiency in or defective condition of the body of said car or cars.”

There are other provisions in the contract that seem to contemplate and provide for some degree of care of the stock and some degree of assumption of risk upon the part of the shipper and for relieving the carrier to some extent from liability that it would have assumed had it undertaken to bring the stock through safely and to take care of jt in all respects. Now it seems that the car was loaded at Indianapolis by the shippers. In this car were placed at least twelve horses. Two partitions were put into the car; one end was partitioned' off for a certain team of horses and that team was put into that end. They were not injured. The other end of the car was partitioned off by the shippers, and in that end was placed this animal which the humane officer required to be killed upon its arrival here. In the space between these partitions were placed nine horses; and it is said that sufficient room was left so that they could be properly loaded,, that is to say, put in so closely that they could stand at ease, but could not move about so as to get down or turn around or trample upon or injure each other. The horses which were in the end of the car were tied. The horses in the middle space were not tied. It seems to be fairly shown by the preponderance of the evidence that these horses were properly loaded into the car, and that proper provision was; made by the shippers for their safety. Witnesses say that these partitions; so put in by the shippers were built strongly, of oak plank, studding and other material. ■ . ¡

It seems that upon the arrival of the car here the partitions were down; one of.them entirely, and the other perhaps only partially down, and that the partitions being down allowed the horses to move about— that they were not kept confined but left in a position where'they might injure one another. There is testimony tending to show that the knocking down of one of these partitions was due to the rough handling of the car by the railroad company between Mansfield and Toledo. One of the partitions seems to have been down upon the arrival of the car at Mansfield. It would seem as if proper care for these horses upon the part of the persons' who accompanied them would have required, upon their discovering, as they did, that one of these partitions was down at Mansfield, that they should have seen to its re-erection before the car was allowed to proceed further, but it is not apparent from the record that they had an opportunity to do this or that they had sufficient time or that they had the facilities, while the car was being transferred from the main line at'Mansfield onto this branda line to Toledo to be brought through. On the way from Mansfield to Toledo the car was put into a train of coal cars, and it seems it was pretty roughly handled. The horses appear to have received no injury up to the time the train arrived within thirty or forty miles of Toledo. They were then seen by the shipper accompanying them and he 'discovered nothing wrong with them. The car arrived here quite early in the morning of the day following their shipment from Indianapolis. Later in the morning the shipper and his assistants went to unload the car and found the horses injured as I have described.

Upon this state of facts the court charged and held that the burden of proof rested upon the railroad company to show that the injury was not due to its negligence in the premises, and we think that in this holding the court followed the rule laid down by the Supreme Court of this state in the case of Union Express Co. v. Graham, 26 Ohio St. 595, where it is said that:

“When a common carrier claims immunity for the loss of goods with which he had been intrusted, on the ground that such immunity is secured by a special agreement, the burden is on him to prove that the loss was occasioned without his fault.”

I also refer to the case of United States Express Co. v. Backman, 28 Ohio St. 144, where it is said:

p, “In an action on the ground of negligence against a common carrier «pon a bill of lading containing an exemption from liability from loss by fire, the burden of proof is on the carrier to show that the loss occurred within the terms of the exemption, and that the loss occurred without fault on his part.” ■

Other cases are referred to in the opinion in the case last cited.

The trial court also held that this limitation upon the amount that might be recovered In case of loss was not valid and was not binding if the loss 'were due to the negligence of the railroad company; and therein we think the court followed the law as laid down by the Supreme Court of this state. Upon that subject I cite again the cases of United States Express Co. v. Backman, supra, and Railway Co. v. Sheppard, 56 Ohio St. 68 [46 N. E. Rep. 61]. I say, as laid down by the Supreme Court of this state, for the reason that the rule of this state is not the rule generally prevailing in the United States and is not the rule that has been laid down by the Supreme Court of the United States, but it seems to be adhered to by our own Supreme Court, and, of course, fpr us, is the law of this case. -The views of the Supreme Court of the United States upon the subject are very fully expressed and a very full line of authorities cited in Hart v. Pennsylvania Co. 112 U. S. 331.

In the case of Cleveland, C. C. & St. L. Ry. Co. v. Simon, 8 Circ. Dec. 540 (15 R. 123), decided by the circuit court of Darke county, opinion by Judge Summers, there is a distinction based upon the knowledge of the carrier of the value of the stock or property being shipped, which might, perhaps, be applicable to this case, and the court held there that:

“A contract of carriage, fairly made and signed by a shipper, agreeing upon the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, will, even in case of loss through negligence, be upheld, and the shipper limited to the agreed valuation.”

Notwithstanding the very able discussion of the cases and efforts at distinguishing the cases, it does not seem to us to be quite in harmony with the decisions of our Supreme Court upon the subject and we feel impelled to follow the rule as laid down by the Supreme Court in the cases cited. True this case is noted in Simon v. Railway Co. 63 Ohio St. 598 [60 N. E. Rep. 1134], as affirmed on the ground that the judgment of the circuit court involved the weight of the evidence. How that could be when the decision was upon demurrer to the answer, we cannot comprehend. It is probably true that error was prosecuted in the Supreme Court to a subsequent judgment of the. circuit court in the same case. At all events the point here involved does not appear to bave received the attention of the Supreme Court in that case. I will read a paragraph or two from the case of United States Express Co. v. Backman, 28 Ohio St. 144, 155 :

“The Ohio cases hereinbefore cited make it clear that common carriers cannot, by contract, exempt themselves from liability for full damages for a loss occasioned by their own negligence or that of their servants. No more can they legally stipulate for a partial exemption from liability caused by like negligence. The public policy tfiat avoids a contract for total exemption, will hold a contract void that provides for partial exemption in such case. The fact that by reason of such contract the carrier undertook the transportation of the goods for a diminished reward will avail him nothing.”'

And more to the same effect. In this case there is some evidence of negligence — enough so that the burden to disprove negligence rests upon the carrier, and we think it cannot be said that the verdict is against the weight of evidence, and finding that the rules of law laid down by the court in its charge are correct, the judgment of the court below will be affirmed.