author: JONES, (THOMAS A.) J.

text:
    GIFTS — PRINCIPAL AND AGENT.
    [Lawrence (4th) Court of Appeals,
    March 25, 1913.]
    Walters, Sayre and Jones, JJ.
    George W. Merchant and Catherine M. Merchant v. German Building & Loan Company, et al.
    Endorsement and Delivery of Certificate of Deposit to Donor's Brother in Presence of, and Declaring Same Gift to be Delivered to, Donor’s Parents, does not Effect Valid Complete Delivery, Donor Retains Dominion over Certificate Held by Brother as Agent.
    Dr. Merchant' was the owner of a certificate of deposit, issued to him on December 29, 1910. Soon thereafter, in the donees' presence, he endorsed and delivered the certificate to his brother, declaring it was a gift to the donees to be delivered to them. This donor informed donees.
    The brother did .not deliver the certificate to donees until after donor’s death on May 1, 19'12. In the meantime the donor had received three semi-annual interest checks, which he endorsed and returned to the B. & L. company, it affirmatively appearing he used the proceeds of the last check. Held:
    1. Prom' the facts stated, the brother is presumed to have been the agent of the donor and that donor retained dominion over the certificate.
    2. There was no valid, completed delivery.
    [Syllabus by the court.]
    Error to common pleas court.

      Á. J. Layne, for plaintiff in error.

      E. E. Stewart, for defendants in error:
    Burden of pro'of, Thornton, Gifts 189; 20 Cyc. 1219, 1223; Beaver v. Beaver, 137 N. Y. 59 [32 N. E. Rep. 998]; Flanders v. Blandy, 45 Ohio St. IOS [12 N. E. Rep. 321].
    Essentials of gift inter vivos, Flanders v. Blandy, 45 Ohio-St. 108 [12 N. E. Rep. 321] ; 20 Cyc. 1192.

      Delivery to third party, trustee of donees? or agent of donor? 8 Am. & Eng. Ene. Law (1 ed.) 1318; 20 Cye. 1213; Sessions v. Moseley, 58 Mass. (4 Cush.) 87; Wadd v. Hazelton, 137 N. Y. 215 [33 N. E. Rep. 143; 21 L. R. A. 693; 33 Am. St. Rep. 707] ; Seott v. Lauman, 104 Pa.- St. '593; 14 Am. & Eng. Ene. Law (2 ed.) 1025; Furencs v. Fide, 109 Iowa 511 [80 N. AY. Rep. 539] ; Worthington v. Bedkey, 86 Ohio St. 128 [99 N. E. Rep. 2Í1]; Telford v. Patton, 144 111. 611,-624 [33 N. E. Rep. 1119],
    A court of equity will not interfere to perfect a defective gift, nor will it enforce such a gift as a declaration of trust, 14 Am. & Eng. Enc. Law (2 ed.) 1017; Flanders v. Blandy, 45 Ohio St. 108 [12 N. E. Rep. 321] ; Smith, v. Dorsey, 38 Ind. 451 [10 Am. Rep. 118] ; Thornton, Gifts Secs. 256,, 410, 415, 416; Young v. Young, 80 N. Y. 422.
    Death revokes agency, aiso what constitutes agency, 20 Cyc. 1213; Thornton, Gifts Sec. 116, p. 94; Dickeschied v. Bank, 28 AY. Ya. 340; Smith v. Ferguson, 90 Ind. 229 [46 Am. Rep. 216],

      J. B. Bibbee, for defendants in error:
    Cited and commented upon by the following authorities: Polley v. Hides, 58 Ohio St. 218 [50 N. E. Rep. 809; 41 L. R. A. 858] ; Gano v. Fink, 43 Ohio St. 462 [3 N. E. Rep. 532; 54 Am Rep. 819] ; Basket v. Hassell, 107 U. S. 602 [2 Sup. Ct. Rep. 415; 27 L. Ed. 500] ; Hamor v. Moore, 8 Ohio St. 239; Starr v. Starr, 9 Ohio St. 74; Simmons v. Savings Society, 31 Ohio St. 457 [27 Am. Rep. 521]; Robison v. Railway, 13 Dec. 1; Rote v. Warner, 9 Circ. Dee. 540 (17 R. 350) ; Carter v. Buckingham, 12 Dee. Re. 202 (1 Han. 395) ; Flanders v. Blandy, 45 Ohio St. 108 [12 N. E. Rep. 321] ; Worthington v. Redkey, 86 Ohio St. 128 [99 N. E. Rep. 211]. '
   JONES, (THOMAS A.) J.

Dr. AYilliam M. Merchant had issued to him by the German B. & L. company a certificate of deposit dated December 29, 1910. Soon after its issue, he endorsed and delivered the same to his brother, George Hannan Merchant, with the statement that said delivery was to him as a gift of said certificate for bis father and mother, the plaintiffs, and that he was placing it in the name and possession of his brother for the plaintiffs, said certificate or fund to be delivered to them. At the time of such endorsement and delivery to his brother the donor informed the plaintiffs that he had placed said certificate with, his brother as a gift for them, which was to be delivered to them by said George H. Merchant.

After he had received said certificate the brother kept possession of the same until after the death of Dr. Merchant on 'May 1, 1912, and after said date he endorsed and delivered the same to plaintiffs.

The B. & h. company had no knowledge of the assignment, but issued three semi-annual checks, as interest thereon, and mailed them to Dr. Merchant; said cheeks were returned to the B. & L. company endorsed by Dr. Merchant, it affirmatively appearing from the agreed statement that the last of these checks issued April 1,1912, amounting to $20.43, was received by him and the proceeds used by him.

The contest arises between the plaintiffs, who claim as donees, and the administrator of the estate of Dr. Merchant. The widow is also resisting the claim of the plaintiffs.

The trjal court, on the pleadings and facts agreed upon, rendered judgment in favor of the administrator, and the plaintiffs are prosecuting error.

The only question to be determined is: Was there a valid gift of the certificate of deposit or of the fund by Dr. Merchant to the plaintiffs? The facts agreed upon do not contain the required essentials to make it a gift donatio causa mortis; and, if sustained at all, it must be sustained as a gift inter vivos. Nor can it be doubted that, whatever may have been the rule of early decisions, a certificate of deposit may now be the subject of gift with or without endorsement; but the same principles apply thereto as in the gift of ordinary chattels.

Was it a valid gift inter vivos? Some of the requirements necessary for its establishment have been fully proved. The capacity of the donor to make it, his intention to confer it upon the donees, are beyond dispute; and if there was a valid delivery, its acceptance would be presumed on the part of the donees, because of tbe undenied benefit accruing to them. It remains only to be determined whether there was sufficient proof of delivery of the certificate. There is no trouble as to the general rule applying to the requirements necessary to prove a gift of chattels inter vivos. The rule is plain, but its application, in some cases, difficult. Text-books are confusing, not in the statement of essentials, but in the attempted application of various jurisdictions as they grope in the twilight zone of fact constituting completed delivery.

Neither do the ordinary principles of trusteeship arise from the facts developed, except the incidental trust relationship that would arise in the event that the depositary should be found to be the agent of the donees. If the depositary was the agent of the donor, or if the donor had'the power of revocation before delivery, it is elementary that no completed gift was made. So if the gift is not to be delivered in praesenti. Smith v. Ferguson, 90 Ind. 229 [46 Am. Rep. 216].

It appears that the certificate was endorsed and handed to the depositary to be delivered to the donees as a gift, and they were advised of the fact at the time. If delivery had been made in the donor’s lifetime there would be no question of its completion, but it was not endorsed and manually delivered to the donees until after his death. If it were revocable during his lifetime, his death would revoke -it.

If the transaction is directly between the donor and the donee, and the chattel capable 'of manual delivery, such delivery is necessary; otherwise, where the subject is not capable of manual delivery, then proof of constructive or symbolical delivery is required. The same character of delivery should be required when it is made through the intermediary of a third person. In gifts inter vivos if the donor delivers a chattel capable of manual delivery to a depositary with instructions to give it to the donee, although he has avowed his intention to the donee, until the subject is actually delivered to the donee by the depositary, a locus penetentiae attaches to the proposed gift, wherein it may be revoked by the donor or by his death. In such cases the depositary is the agent of the donor, designated by the donor for the purpose of delivery only. Since the only authority of his agency is to deliver the chattel, until the authority is executed by delivery he who created the agency can also unmake it. In discussing the essentials of a gift inter ■vivos the supreme court of Massachusetts says:

1 ‘ When one, not in apprehension of death, delivers a thing to another, to be given by him to a third, * * * when the depositary shall see him, whether the donor live or die, the authority of the depositary to deliver the thing will be revoked by the death of the donor, unless it be previously delivered to the donee and accepted by him.” Sessions v. Moseley, 58 Mass. (4 Cush.) 87; Dickeschied v. Bank, 28 W. Va. 340.

This, then, is plainly the rule unless it is shown that, by the declaration of gift and by the conduct of the donor, the depositary was the agent or trustee of the donees. The latter claim the certificate in question by an effort to convert the depositary into an agent or trustee for themselves. As has been said, there was no express trust imposed upon George Plannan Merchant in favor of the donees; nor does there appear from the agreed statement an agency relation between him and- the donees by the creation of the latter. There is no proof that Dr. Merchant constituted his brother the agent of the donees, and in the absence of such proof he must be presumed to have acted as the agent of the donor. Clapper v. Fredrick, 199 Pa. 609 [49 Atl. Rep. 219], and authorities there cited.

If any such agency appears here, it must be shown from the language and conduct of the donor alone.

The language used does not bear such constructions, and is not as strong in that regard as that used by the donor in Worthington v. Redkey, 86 Ohio St. 128 [99 N. E. Rep. 211]. And whether it be claimed that the depositary was agent or trustee, the same quantum of proof would be necessary. In order to establish either agency or trusteeship the burden of proof is upon the plaintiff donees; and, for obvious reasons, the law required proof that is clear and convincing, not merely a bare preponderance. This rule of evidence is not only sustained by the weight of authority elsewhere, 20 Cyc. 1223, but emphasized in the following Ohio cases: Gano v. Fisk, 43 Ohio St. 462, 473 [3 N. E. Rep. 532; 54 Am. Rep. 819]; Flanders v. Blandy, 45 Ohio St. 108, 113 [12 N. E. Rep. 321]; Worthington v. Redkey, supra.

Nor is the rule of proof relaxed except in some eases where a close relationship exists between donor and donee, or where unequivocal possession of the gift is shown in the donee.

The certificate was handed to George H. Merchant as a gift for the donor’s father and mother, “to be delivered to them.” Neither by language or conduct of the donor does it appear that an immediate delivery was to be made. Such delivery before revocation is an absolute essential. At the time of the endorsement and delivery to the depositary the donees were present, yet the certificate was not handed to them; it remained in the hands of the brother for a period of about fifteen months without demand therefor by the donees, so far as appears from the record. During this time the donor received the three semiannual interest check payments, which checks were returned to the company with the donor’s endorsement thereon, it appearing affirmatively that the proceeds of the last check were used by him. The time of delivery is uncertain. If it were the intention of the donor to retain dominion over the gift until his death, at which time it was to be delivered to the donees, it would not only be void as an uncompleted gift, but void as an attempt to make a testamentary disposition thereof.

That the donor endorsed the certificate to the depositary does not aid the requirement of a completed delivery. The donor could recall the endorsement as well as the agency before delivery.

“The endorsement of the donor’s name on the instrument is merely evidence of his intention to make a gift, which may be proven aside from such endorsement.” Polley v. Hicks, 58 Ohio St. 218, 223 [50 N. E. Rep. 809; 41 L. R. A. 858].

While a number of authorities have been cited by counsel on both sides in this ease, the great weight of authority supports the principles foregoing in this opinion, and their seeming variance is in the application of facts to the general rules. In this ease we find that there was no completed delivery of the certificate or the fund to the plaintiff donees.

The judgment of the common pleas court is affirmed and cause remanded for further proceedings.

Walters and Sayre, JJ., concur.


source: Caselaw Access Project

author: NORRIS, J.

license: Public Domain

text:
    COMPENSATION AND SALARIES — ELECTIONS.
    [Mahoning (7th) Court of Appeals,
    December 12, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    State ex rel. Jones v. I. M. Hogg, Co. Aud.
    Members of Board of Deputy State Supervisors of Elections Entitled to Compensation in Primary Elections and Two Dollars for Every Precinct. Regardless of Fact of Primary Held or Not.
    Provisions of Sec. 4990 G. C. are not inconsistent with Art. 5, Sec. 7, of the amendments of 1912 to the constitution, and by the provisions of that section of the statutes each mem'ber of the board o-f deputy state supervisors of elections is entitled to receive as compensation for his services in conducting a primary election provided for by Sec. 4963 G. C., to be held in September of odd numbered years, the sum of ■two dollars for each precinct in his county whether primary elections were actually held in all of the precincts of his county or not.
    [Syllabus by the court.]
    Mandamus.

      David G. Jenkins, for relator.

      A. M. Henderson, Pros. Atty., for defendant.
   NORRIS, J.

The relator in his petition alleges that oh August 2, 1912, he was duly appointed a member of the board of deputy state supervisors of elections for Mahoning county, for a term of two years; that on September 2, 1913, a primary election was held in Mahoning county, in accordance with law, and that the relator acted as member of such board of deputy state supervisors of elections in conducting said primary election; that on the day of such primary election there were 133 legally existing and constituted election precincts in said county, and that he was entitled, as compensation for his services in conducting such election, to the sum of $266, but that the defendant, I. M. Hogg, auditor of Mahoning county, refused to issue his warrant for such sum, claiming that relator was entitled to only $194 as the legal compensation; that relator has presented proper certificate and voucher and in all things complied with the requirements of the law, that there is money in the county treasurer’s hands to the credit of the proper fund to pay the full amount of relator’s claim for compensation.

It is nowhere alleged in the petition that primary elections were actually held in all of the 133 precincts of the county. To this petition a demurrer was filed by the respondent on the ground that the petition did not state facts sufficient to constitute a cause of action and the issue of writ of mandamus prayed for.

It is stated by counsel that while there are 133 election precincts in the county, 89 are in the city of Youngstown and 44 in townships outside of Youngstown, and it is said thát the auditor refused to issue the warrant because of the provisions of Art. 5, Sec. 7, of the amendments to the constitution adopted in September, 1912, which provides that:

“All nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law, and provision shall be made by law for a preferential vote for United States Senator, but direct primaries shall not be held for the nomination of township officers or for the officers of municipalities of less than two thousand population, unless petitioned Tor by a majority of the electors of such township or municipality. ’ ’

Is it necessary for the relator to allege in his petition that primary elections were actually held in all of the 133 precincts % Section 4990 G. C. provides as follows:

“For their services in conducting primary elections, members of boards of deputy state supervisors shall each receive for his services the sum of two dollars for each election precinct in his respective county.”

This simply seems to be the method of fixing the compensation of these officers. It is a means clearly to express the legislative intent. We see no reason for giving it any interpretation other than what the plain language implies, that is that each such deputy state supervisor shall receive two dollars for each precinct, and this without reference to whether elections were lield in all of the precincts or not.

The election for which compensation is asked in this case was a general primary election held under the provisions of Sec. 4963 G. C., which provides that:

“Primaries held to nominate candidates for township and municipal offices, justices of the peace and members of the board of education shall be held in each county at the usual polling places on the first Tuesday after the first Monday in September of odd numbered years.” ■

Now, the provisions of the section of the constitution we have quoted above, provided that in townships outside of municipalities such primary elections shall not be held unless petitioned for. Whether such primaries are petitioned for in this case does not appear, but is this Sec. 4990 G. C., at all inconsistent with that provision of the constitution which merely provides a method of determining compensation of the supervisors for holding such general primaries? The constitutional amendment may possibly reduce the amount of services to be rendered, but does that necessarily change the provisions of the statute as to the compensation? We think not.

The schedule adopted September, 1912, provides:

“The several amendments passed and submitted by this convention when adopted at the election shall take effect on the first day of January, 1913, except as otherwise specifically provided by the schedule attached to any of such amendments. All laws then in force, not inconsistent therewith, shall continue in force until amended or repealed.”

Without this constitutional amendment there could be no doubt as to the proper interpretation of this statute. How can it be said that this amendment amends the statute or gives it any different interpretation than it had before? As we have said, we think this statute is not inconsistent with the amendment and remains in full force and should receive the same interpretation as it had before the amendment was adopted. A' peremptory writ of mandamus will be awarded as prayed for.

Metcalfe and Pollock, JJ., concur.


author: PER CURIAM.

text:
    ESTOPPEL — INSURANCE—PLEADING.
    [Richland (5th) Court of Appeals,
    January 23, 1913.]
    Yoorhees, Shields and Powell, JJ.
    Prudential Ins. Co. v. Florence Shively.
    1. Failure of Life Insurance Company to Plead Conditions of Policy as Special Defense Entitles Plaintiff to Judgment on Pleadings, not Required to Prove Waiver Averred.
    In an action on a policy of life insurance, failure of the company to plead any of the conditions of the policy as a special defense, renders it doubtful whether the plaintiff would be required to offer any proof in support of an averment of waiver, but would rather be entitled to a judgment on the pleadings.
    2. Failure to Charge Specially in Absence of Request therefor in Record Shown not Erroneous.
    An assignment of error based upon failure of the court to charge* specifically upon any branch of the case, or upon any issue made by 'the pleadings, can not be considered where the record fails to disclose that any request was made of the court to so-charge.
    3. Mailing Policy to Agent for Delivery to Insured and Acceptance of Premium Constitute Delivery.
    A court is within the law in charging the jury that the act of the-company in mailing a policy to its agent, to be by him delivered, to the insured, constitutes delivery to the insured where the* first premium has been paid. The contract is consummated by acceptance of the application for insurance, executing the policy and the depositing of it in the mail directed to the agent for delivery to the applicant, and delivery in law becomes complete-without actual manual delivery being made.
    4. Agent's Collecting and Retaining Premium but Delaying Delivery of'Policy on Account of Insured’s Illness Renders Company Liable, if Insured Dies on Principie of Ratification and Estoppel.
    Where the agent of a life insurance company, having knowledge that a policy has been issued in an application made through, him, visits the insured and collects the first premium, but finding the insured complaining of being ill delays delivery of the-policy but retains the premium, and in the meantime typhoid, fever develops and the insured dies therefrom, the company is-liable on the policy on the principle of ratification and estoppel.
    [Syllabus by the court.]
    Error to common pleas court.

      B. W. Stevenson, Cummings, McBride & Wolfe, for plaintiff in error:

      Cited and commented upon by tbe following authorities: Union Central L. Ins. Co. v. Hook, 62 Ohio St. 256 [56 N. E. Hep. 906] ; Life Ins. Co. v. Howie, 62 Ohio St. 204 [56 N. E. Hep. 908] ; 25 Cyc. 719; Union Central L. Ins. Co. v. Pauly, 8 Ind. App. 85 [35 N. E. Rep. 190] ; Smith v. Insurance Co. 65 Eed. Rep. 765 [13 C. C. A. 284] ; Brown v. Insurance Co. 59 N. H. 298 [47 Am. Rep. 205] ; St. Louis Mut. L. Ins. Co. v. Kennedy, 69 Ky. 450; McClave v. Insurance Co. 55 N. J. Law 187 [26 Atl. Rep. 78] ; Markey v. Insurance Co. 118 Mass. 178; Thompson v. Insurance Co. 104 U. S. 252 [26 L. Ed. 765] ; Iowa Life Ins. Co. v. Lewis, 187 U. S. 335 [23 Sup. Ct. Rep. 126; 47 L. Ed. 204] ; Langstaff v. Insurance Co. 69 N. J. Law 54 [54 Atl. Rep. 518]; Barker v. Insurance Co. 188 Mass. 542 [74 N. E. Rep. 945] ; Mallory v. Insurance Co. 97 Mich. 416 [56 N. W. Rep. 773] ; Crutchfield, v. Insurance Co. 113 Ky. 53 [67 S. W. Hep. 67] ; Mutual Life Ins. Co. v. Sinclair, 29 Ky. Law Rep. 1543 [71 S. W. Rep. 853]; Union Mut. Ins. Co. v. McMillen, 24 Ohio .'St. 67; Elliott, Insurance 36; Russell v. Insurance Co. 176 N. T. 178 [68 N. E. Rep. 252; 98 Am. St. Rep. 656] ; Lee v. Insurance Co. 203 Mass. 299 .[89 N. E. Rep. 529] ; Gallant v. Insurance Co. 167 Mass. 79 [44 N. E. Rep. 1073] ; McClave v. Life Assn. 55 N. J. Law 187 [26 Atl. Rep. 78] ; Catoir v. Insurance Go. 33 N. J. Law 487; Anders v. Clearing Co. 62 Neb. 585 [87 N. W. Rep. 331].
    W. M. Weldon, for defendant in error:
    Cited and commented upon by the following authorities: Metropolitan Life Ins. Co. v. Howie, 62 Ohio St. 204 [56 N. E. Rep. 908] ; New York Life Ins. Co. v. Babcock, 104 Ga. 67 [30 S. E. Rep. 273; 42 L. R. A. 88; 69 Am. St. Rep. 134] ; Newark Machine Co. v. Insurance Co. 50 Ohio St. 549 [35 N. E. Rep.' 1060; 22 L. R. A. 768] ; Hallock v. Insurance Co. 26 N. J. Law 268 [72 Am. Dee. 379] ; King v. Insurance Co. 58 Wis. 508 [17 N. W. Rep. 297] ; Preferred Accident Ins. Co. v. Stone, 61 Kan. 48 [58 Pac. Rep. 986] ; Mathers v. Accident Assn. 78 Wis. 588 [47 N. W. Rep. 1130; 11 L. R. A. 83] ; Beebe v. Insurance Co. 93 Mich. 514 [53 N. W. Rep. 818; 18 L. R. A. 481; 32 Am. St. Rep. 519]; Amazon Ins. Co. v. Wall, 31 Ohio St. 628 [27 Am. Rep. 533] ; Ellis v. Insurance Go. 50 N. Y. 402; First Baptist Church (Tr.) v. Insurance Co. 19 N. Y. 305; Putnam v. Insurance Co. 123 Mass. 324 [25 Am. Rep. 93]; Palm v. Insurance Co. 20 Ohio 529; Wood v. insurance Co. 149 N. Y. 382 [44 N. E. Rep. 80; 52 Am. St. Rep. 733]; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345 [15 Am. Rep. 612] ; Globe Mutual L. Ins. Co. v. Wolf, 95 U. S. 324 [24 L. Ed. 387] ; New York Life Ins. Co. v. Eggleston, 96 U. S. 572 [24 L. Ed. 841] ; Home Ins. Co. v. Curtis, 32 Mich. 402; Blanchard v. Waite, 28 Me. 51 [48 Am. Dee. 474].
   PER CURIAM.

This action below was brought by defendant in error, Florence Shively, against the Prudential Insurance Company, plaintiff in error, upon a policy of life insurance. The issues were made by the pleadings and the cause was tried to a jury, which returned its verdict for the plaintiff. Motion for a new trial was duly filed, the same overruled by the court, and judgment was entered upon the verdict.

To reverse this judgment error,is now prosecuted to this court, and the grounds of error complained of are set out in the petition in error and are:

First. Error of the court in overruling the motion for a new trial.

Second. The verdict and judgment are against the weight of the evidence.

Third. The verdict and judgment are contrary to law.

Fourth. Error of the court in its charge to the jury.

Fifth. Error of the court in refusing to charge the jury as requested by defendant (plaintiff in error).

Sixth. Error of the court in rejecting evidence offered by the plaintiff in error.

Seventh. Error of the court in admitting evidence objected to by plaintiff in error.

Eighth. Error of the court in refusing to take the case from the jury, made at the close of plaintiff’s evidence and renewed at the close of all the evidence.

The case below was tried upon the issues made by the first amended petition, to answer thereto, and the evidence. The amended petition alleges in part as follows:

That on or about August 4, 1909, John Shively, husband of the plaintiff, at the solicitation of Frank M. Peters, who was then acting as the agent and representative of defendant, made his application to defendant company for a certain policy of insurance, commonly known as a “twenty year endowment policy” on his life, for the sum of $1,Q00, to be paid to his wife, Florence Shively, the plaintiff herein, in the event of his death, and after due notice of his death had been given said defendant company, in consideration of the payment by him, the said John Shively, to said defendant company, of an annual premium of $45.09, with a further provision that said contract or policy of insurance should not take effect until it had been issued and delivered by said defendant company and the first prémium paid in full, while his, health was in the same condition as described in said application. Said John Shively was examined by a local physician or examiner of said company on August 5, 1909, and by said examiner found to be a good and proper risk for life insurance, and so reported, and said report, together with said application, was forthwith mailed to said defendant company at its home office in Newark, N. J., on or about August 6, 1909. Defendant company agreed with said John Shively by and through its agent and representative, that if said applicant was. found to be a desirable risk, it would forthwith issue and deliver to him a policy in the form prescribed by law and provided for in his said application, by the terms of which it would agree to pay to his wife, Florence Shively, the sum of $1,000, in the event of his death, provided the annual premium provided for in said policy had been paid, and the company had due notice and proof of his death.

Said application was duly received by defendant company, but in violation of said agreement was held in suspense and not. acted upon by defendant company until August 12, 1909, when defendant company did issue and deliver its certain policy, to. wit, policy No. 10887113, in the form provided for in said application, and forwarded it by mail to its local agent at Mansfield, Ohio.

On August 13, 1909, John Shively paid to the agent and representative of defendant the first premium on said policy, to wit, the sum of $45.09, upon the express representation and agreement of said agent that his application had been accepted and his policy issued, and that said policy would be delivered promptly to him as soon as it was received at Mansfield, Ohio.

It is further alleged that said policy of insurance was received at Mansfield, Ohio, on or about August 13, 1909, but it was not tendered or delivered to John Shively, or to this plaintiff, and said premium so paid by John Shively was not returned or tendered back to John Shively until September 9, 1909, in the afternoon of said day, and that said John Shively died about seven o’clock in the morning of September 9, 1909.

Plaintiff, says that when the said John Shively paid the premium on said policy of insurance, the agent of defendant, with full knowledge of said John Shively’s health and physical condition represented to him that the policy was no doubt issued and on the way to the agent, and that if he would pay the premium the policy would be delivered to him and the insurance would be effected.

Plaintiff says that said John Shively, relying on said representations, paid said premium, and the policy was received by the agent of defendant at Mansfield within a few hours of the time the premium was paid, and while said John Shively’s health and physical condition was the same as it was when the premium was paid and accepted by defendant’s agent; and the plaintiff says that the defendant waived the conditions with respect to the applicant’s health being in the same condition as described in the application, and waived all of the conditions to the delivery of the policy, and said John Shively was entitled to the immediate delivery of the policy by the agent of the defendant. Due notice of the death of John Shively was given to defendant company on or about September 13, 1909, and demand made on said defendant company for the sum of $1,000, as the proceeds, of said policy or contract of insurance abové set forth, on or about September 28, 1909, which defendant has wholly failed and refused to pay. It is further alleged that plaintiff and her late husband, John Shively, have done and performed all the conditions of said contract on their part to be performed. A copy of said policy of insurance which was contracted for as above alleged is hereto attached, marked exhibit “A,” and plaintiff prays for judgment for $1,000, with interest from September 9, 1909.

The answer, which controverts but few of the averments of the petition, made the following admissions and denials:

Admits that on or about August 4, 1909, John Shively was the husband of plaintiff; that on or about said date John Shively made application for a policy of insurance, commonly known as an endowment policy, on his life in the sum of $1,000, to be paid to the plaintiff in the event of the death of said John Shively; that said application was made to defendant company; that the annual premium on said policy was to be the sum of $45.09; that there was a provision that said contract of insurance should not take effect until it had been issued and delivered by said defendant company and the first premium paid in full while his health was in the same condition as described in said application. Admits that said John Shively was examined by the local physician of the defendant company on August 5, 1909, and found to be a proper risk for life insurance. Admits that said report of said physician, together with the said application, was forwarded to the defendant company at its office in the city of Newark, N. J.; also further admits that it issued its certain policy No. 10887113 and mailed the same to its agent at Mansfield, Ohio; admits that it tendered the premium to John Shively on September 9, 1909, admits that defendant company received notice of the death of John Shively on or about September 13, 1909, and that demand was made on defendant company for the sum of $1,000, on or about September 28, 1909. Defendant further answering denies each and every other allegation in said petition contained not herein specifically admitted.

From these pleadings it will be observed that there were few controverted questions of fact; practically the only material allegation of the petition put in issue by the answer, under the denials pleaded, is the averment of the petition pleading a waiver of one of the conditions of the policy as contained in the application, which application is made a part of the policy.

It will be observed that the defendant below did not plead any of the conditions of the policy as a separate defense, which under the rule would be necessary in order to avail itself of the special provisions of the policy as a special defense.

The plaintiff after pleading a special condition of the application that “said contract or policy of insurance should not take effect until it had been issued and delivered by said defendant company, and the first premium paid in full, while his (Shively’s) health was in the same condition as described in said application,” and then averring that.the defendant company waived the condition with respect to the applicant’s health being in the same condition as described in the application, averred that “plaintiff and her husband, John Shively, have done and performed all the conditions of said contract on their part to be performed.”

It is held in Ohio Farmers’ Ins. Co. v. Titus, 82 Ohio St. 161, 173 [92 N. E. Rep. 161], that:

“The defendant, in order to raise the issue and put the plaintiff to his proof as to the performance of this condition, should have denied performance of all the conditions and should have pleaded specifically this provision of the policy.”

The averment that “plaintiff and her husband, John Shively, have done and performed all the conditions of said contract on their part to be performed, ’ ’ is not put in issue by a general denial; but to make that an issue and.to place upon the insured the burden of proving a waiver of those facts, they should be pleaded by the insurer. Ohio Farmers’ Ins. Co. v. Titus, supra.

Under this state of the pleadings it is doubtful whether the plainitff below was required to offer any proof in support of the averment of a waiver, and if not the plaintiff below would have been entitled to a judgment upon the pleadings; but without deciding this question, how does the case stand upon the issues as tried as it comes to this court upon the record?

After the jury was sworn and before any evidence was offered, the defendant below moved the court for a judgment upon the pleadings, and the court overruled the motion, and defendant excepted.

In this we think the court was clearly right and committed no error in so holding.

During the progress of the trial the defendant offered numerous objections to the introduction of testimony on the part of the plaintiff, and the court overruled the objections, and defendant noted its exceptions.

We have carefully read the entire bill of exceptions, and carefully considered all objections to the testimony, and are entirely satisfied that the court committed no prejudicial error in the admission of the testimony complained of.

One of the grounds of error complained of in the petition in error was the refusal of the court to charge the jury as requested by plaintiff in error.

The record failing to show that the plaintiff in error asked the court to charge specially upon any branch of the case, or as to any issue made by the pleadings, and made no request whatever of the court to charge the jury, this alleged error need not be considered. There is nothing before the court to review as to that claimed error.

At the close of all the testimony the defendant below renewed its motion for a judgment and moved the court to arrest the case from the jury, and instructed the jury to return its verdict for the defendant. The court overruled the motion and the defendant excepted. In so ruling we think the court committed no error.

The court then charged the jury generally upon the issues made by the pleadings. The defendant excepted to the charge-as a whole and to each and every part thereof.

We have carefully reviewed and considered the charge as given by the trial judge to the jury, and have reached the conclusion that the same fairly submitted to the jury the issues made by the pleadings; that it was a plain, fair statement of the issues for the determination of the jury. It certainly was not prejudicial to the plaintiff in error.

Upon the law we think the court correctly instructed the-jury that “as a general proposition it may be said to you, I think, as a matter of law applicable to this case, that when an insurance company places a policy in the hands of one of its agents for delivery, it impliedly authorizes him to act in all things necessary in order to consummate the delivery in a particular manner. ’ ’

The court might have well gone farther and instructed the jury that the act of the company in mailing the policy to the agent, to be by him delivered to the insured, would in law constitute delivery to the insured; that when an applicant for insurance pays the first premium to the agent, the contract is consummated when the company accepts the application, executes a policy, and deposits it in the mail, directed to its agent, for delivery to the applicant, and delivery in law is complete without the actual manual delivery to the insured. Kilborn v. Insurance Co. 99 Minn. 176 [108 N. W. Rep. 861]; 28 Cent. Dig. “Insurance” Secs. 198, 223.

The agent of the company was for the purpose of delivery the agent of the assured as well. Hartford, L. & A. Ins. Co. v. Eastman, 54 Neb. 90 [74 N. W. Rep. 394]; Protection Life Ins. Co. v. Foote, 79 Ill. 361; Currier v. Insurance Co. 53 N. H. 538.

We find no prejudicial error in the court’s charge as a whole.

Was the verdict and judgment contrary to law? The determination of this question involves a consideration of the terms .and conditions of the contract of insurance as expressed in the policy and application, construed in the light of the acts and conduct of the parties as disclosed in the record. The policy, with a copy of the application, is filed with the petition as an ■exhibit. No provision of the policy, as a condition precedent to the plaintiff’s right to recover, is pleaded by the defendant company as a defense. It is not averred in the answer or claimed by the company that the policy is void by reason of the violation of any of the provisions thereof, either by the assured or by the defendant in error, beneficiary. It is admitted that the application was accepted and the policy issued. But the whole defense is based upon the claim that the policy was not delivered by the company and the first premium paid while the insured was in the same condition of health as described in the application.

It is not denied that the premium was paid and received by the agent, Peters, who had authority to receive the same. It is not denied but that the agent deposited the money in the bank to the credit and in the name of the company, but it is claimed at the time the agent received the premium, to wit, August 13, the insured was not “in the same condition of health as described in the application”; that the policy, though issued on August 12, had not reached the agent, and that when it did reach the agent to whom it was mailed to be delivered to the assured, the applicant was sick of typhoid fever, and for that reason delivery was withheld.

It is admitted that at the time the assured paid the premium to the agent, he was informed and knew that Shively was “not feeling well,” was indisposed, and that with full knowledge of that fact he received the money, reported it to the company, and deposited same to the credit of the company, and the company has ever since retained it, never having tendered it back or offered to return the same, until after the death of the assured.

Frank M. Peters was district agent of the company, was superintendent of agencies, with assistant superintendents and agents. There were nine counties embraced in his district. He was a vice-principal, with power and authority to represent the company in all matters and things necessary in furtherance of the company’s business, except to pass upon applications and to grant policies; he had no authority to change or waive any of the conditions of a policy after it had been issued, without the consent of the company. He was authorized to collect premiums, and to do all things usual and necessary in the collection thereof. He had full discretion in the premises, except he could not extend the time of payment.

The application upon whffeh the policy in suit was based was made August 4, 1909. The applicant was examined by the company’s local medical examiner at Mansfield, on August 5, 1909, and the applicant was found to be a good risk for life insurance. Shively was at the time forty-one years of age.

The application and medical examiner’s report were forwarded to the home office at Newark, New Jersey, where they were received August 9. The physician’s report was acted upon by the medical staff of the company, approved, and policy recommended August 12. On the same day, August 12, the policy in controversy was issued by the company, and was thereafter mailed to its superintendent, Frank M. Peters, to be by him delivered to the assured, upon the payment of the first premium.

The record does not disclose the actual date the policy was mailed from the home office, or the date it was received by the agent at Mansfield. The answer to the interrogatory attached to the petition was signed by the agent Peters, and this fixes the date of mailing as August 16, but in his evidence given upon the trial he states he does not know the date the policy was .mailed, nor the date it was received; that he was absent on a vacation after the thirteenth, and when he returned in the latter part of the month he found the policy in his office; that it had not reached him on the thirteenth, the day he collected the premium.

It is- evident from the record that the company did not mail the policy until it had received the report of the payment of the premium from its agent Peters, and the date of payment of the premium being August 13, it is quite probable that the policy was mailed on or about the sixteenth.

This fact is important as fixing the date when the.contract was consummated, showing with reasonable certainty that the company had notice and knowledge that the premium had been paid, evidencing a ratification of the act of the agent in the collection of the premium at the time, and knew of the agreements made by the agent with Shively.

On August 13, and before the policy had reached Mansfield, but after the company had approved the application and issued the policy, the agent, who had evidently received information of the granting of the policy, went to the home of the assured to collect the premium. He found Shively in his room, somewhat indisposed; when upon inquiry as to his health the record shows the following conversation was had between the agent, Peters, and Mr. Shively, in the presence of Mrs. Shively, defendant in error:

‘‘ Q. What did Mr. Peters say when he went into Mr. Shively’s room? A. Pie said ‘Hello, old boy, you are not looking as well as when I saw you last.’
“Q. And what did Mr. Shively say in reply to that? A. I am not feeling as well.
“Q. Do you know how much money was turned over at that time? A. There was something less than $100. (This $100 refers to a loan of $100 which the company was making to Shively.)
“Q. When you handed this from Mr. Peters to Mr. Shively, what did Mr. Shively say? A. Pie said: ‘How about this, Mr. Peters, will I get my policy if I pay this premium. ’
“Q. And what further did Mr. Shively say? A. Pie said he ivas sick and nobody knew what he had, or whether he would get out again, Mr. Shively said to Mr. Peters; and Mr. Peters said: ‘Sure you will, your application is in and your policy probably coming this way.’
‘ ‘ Q. Did Mr. Peters say anything about what -Dr. Bushnell had reported to him? A. Pie said ‘you are sound as a dollar. ’ That is what Peters said the doctor said. ’ ’

At this time Peters payments of the first annual premium $45.09, and gave a receipt therefor reading as follows:

“Aug. 13, 1909.
“Received from John Shively (applicant) the sum of forty-five and 09-100 dollars, being a payment on account of the first annual premium on a policy applied for in the Prudential Insurance Company of America.
“It is understood that this payment is in no way binding upon the said company, except that said company agrees to return the amount mentioned hereon in case the company declines to grant a policy on the life of said applicant.
“Frank M. Peters, Supt.”

Across the end of said receipt is the following:

“Ordinary department. Receipt for advance payment on account of premium.” “This receipt must be completed, detaehed and given to the applicant by the agent in exchange for the advance payment.”

It will be noted that this receipt bound the company to return the annual premium in case the company declined to grant the policy. We will speak of this farther in discussing the rights and obligations of the parties under it.

This instrument, while denominated a receipt, is both a receipt and a contract. It is dual in its character. In so far as it is a receipt for money paid it is subject to the rule of explanation by extraneous evidence. ■ It was competent, therefore, for the plaintiff to offer the testimony of Mrs. Shively to say what was said and done at the time the money was paid, for which the receipt was given, as evidencing the conditions upon which it was given, and there was no error in the admission of that testimony.

The application signed by Shively, besides containing the usual questions and answers, contains the following declaration:

“I hereby declare that all the statements and answers to the above questions are complete and true to the best of my knowledge and belief, and I agree that the foregoing, together with this declaration, shall constitute the application and become a part of the contract of insurance hereby applied for, and it is further agreed that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application.
‘ ‘ The applicant will please read answers written after each of above questions before signing.
“Frank M. Peters.
Signature of person whose life is to be insured:
“John Shively.
“Witness to signature:
“Dated at Mansfield, Ohio, this 4th day of August, 1909.”

It is shown by the record (page 26) that from the date of the application, August 4, to 13, Shively was in his usual health, at least not consciously aware of any sickness or that, he was threatened with any. He was engaged in his usual work up until the thirteenth, and worked the day preceding the thirteenth, when he is shown to have remained at home. It was not known until August 16 that he had typhoid fever. He died on September 9, in the early morning, and his physician in his report of the death to the company states that the duration of his sickness was twenty-five days; so going back would show that it began on August 16.

Garey C. Lewis, a witness for plaintiff below, testified that on the last of August he went to the office of the agent, Peters, at the request of the plaintiff, and “told Mr. Peters that Mrs. Shively sent him there for a policy of insurance”; that Peters said “How is Mr. Shively.” I told him Shively was sick, but he thought on the mend; that Peters said, “he has typhoid fever, hasn’t he,” and I told him he had; and he said “under the circumstances I can’t deliver.the policy.” That on Labor day, September 6, he again went to the office of the agent and told him that Mrs. Shively had sent him down to demand the policy, and he said he wouldn’t deliver it; and I told him he surely would have to deliver the policy or the premium, if the insurance was not in force she could use the money, and he refused to pay me either; he said if Mr. Shively gets well he would^ give me the policy; if not the premium would be returned. I demanded either the premium or the policy, and he said he wouldn’t deliver it. At this time Lewis saw and examined the policy in the office of the agent.

Peters denies that he stated to the witness that if Shively got well he would deliver the policy, but if he died he would return the premium; but he admits the demand and that he refused either to surrender the policy or return the premium.

We think the jury were entirely warranted in accepting the testimony of Mrs. Shively and witness Lewis as against that of Peters. Iiis manner and conduct as a witness, his apparent want of frankness, his seeming effort to evade a disclosure oP facts of which he must have had knowledge, his refusal to produce correspondence and other written evidence, his equivocation when appealed to disclose the manner of keeping the com-party’s bank account — all these things do not favorably recommend him or his evidence to the court.

The plaintiff in error in argument seeks to invoke a provision of the policy which provides that no condition, provision or privilege of this policy can be waived or modified in any case except by an indorsement hereon signed by' the president, or one of the vice-presidents, the secretary, one of the assistant secretaries, the actuary or the assistant actuaries. That no agent has power in behalf of the company to make or niodify this or other contract of insurance, to extend the time for paying a premium, to waive any forfeiture, or bind the company by making or receiving any representation or information.

Under the issues as made by the pleadings we hold that the plaintiff in error can not now avail itself of this condition or provision of the policy.

If the company wished to defend against the enforcement of the policy, it was its duty to have affirmatively pleaded this condition of the policy as a defense. The general rule is that Avhere an insurance company relies upon the breach of a condition as a defense in an action on the policy, such breach can not be shown under a general denial, but the insurer must set up in an answer each and every condition upon which it relies for a defense, and aver the breach thereof. Such defenses are affirmative and must be specially pleaded. Selby v. Insurance Co. 67 Fed. Rep. 490; Helvetia, Swiss Fire Ins. Co. v. Allis Co. 11 Colo. App. 264 [53 Pac. Rep. 242]; Farmers’ & Merchants’ Ins. Co. v. Wiard, 59 Neb. 451 [81 N. W. Rep. 312]; Pickett v. Fidelity Co. 60 S. C. 477 [38 S. E. Rep. 160].

It has been held by our OAvn Supreme Court that all conditions of the policy not covered by the plaintiff’s averment of performance, that is, all clauses, stipulations or conditions, whose operation is to defeat, suspend or limit the liability, whether by the doing, omitting or happening of an event, should be specially pleaded by the defendant in its answer. That conditions precedent, performance of which the plaintiff is required to plead in an action on said policy, include only those affirmative acts which are necessary in order to perfect his right of action on the policy, such as giving notice and making proof of loss, furnishing the certificate of. the magistrate when required by the policy, and it may be other acts of like nature. Conditions which provide that the policy shall become void or inoperative, or the insurer relieved wholly or partially from liability, upon the happening of some event, the doing or omitting to do some act, are matters of defense and to be available must be pleaded and their breach alleged. Moody v. Insurance Co. 52 Ohio St. 12, 18 [38 N. E. Rep. 1011; 26 L. R. A. 313; 49 Am. St. Rep. 699].

The court bases its conclusions that the policy was in force at the time of the death of Shively, not so much upon the question of a waiver by the company of a condition of the policy, as upon the principle of ratification and the principle of estoppel.

Under the issues made by the pleadings, and from the foregoing facts as disclosed in the record, we hold:

(1) That the* payment of the premium by Shively to the agent, Peters, was a payment to the company; (2) that the company in receiving the premium is held to have notice and knowledge of the conditions under which it was paid to its agent; (3) that it had knowledge of the terms of the receipt given by the agent at the time the premium was paid; (4) that it was bound thereby; (5) that it was the duty of the company, when it had notice and knowledge that at the time the premium was paid Shively was not in the same condition of health as at the time of making the application, if it intended to disclaim the agent’s acts, it should have done so immediately or within a reasonable time, and returned the premium or tendered its return; (6) that by retaining the money and refusing to return the same upon demand, it is estopped under •every principle of law from defending upon the ground that at the time the premium was paid Shively was not in the same condition of health that he was in at the time the application was made; (7) that it could not retain both the money and the policy until after the loss, and then relieve itself frbm liability by tendering or offering to return the money; (8) that receiving and retaining the premium, with knowledge of the conditions and agreements under which it was paid, was a ratification of the agent’s acts, and the company would be estopped after loss to disclaim his (the agent’s) acts.

The company dealt with Shively through Peters, its agent. He was not only its representative to receive and forward applications, but was also its representative expressly authorized to complete the negotiations, collect the premium, and deliver the policy. He was the only medium through whom the business was carried on. Within the scope of that employment his hand was the hand of the insurance company, his voice was the company’s voice, and his promises and assurances were the promises and assurances of the company, if made within the scope of his authority, notwithstanding any undisclosed restriction or limitation existing in his contract of employment. The applicant would only be put upon notice and bound by such, restrictions and limitations upon the power of the agent as were disclosed or of which he had notice.

Any other rule would place in the hands of insurance companies the power to escape liability by repudiating the acts of its agent done and performed in the regular course of its business, and contracts of insurance would have no more strength or stability than a rope of sand.

Peters was authorized and empowered to communicate to the applicant the company’s action upon his application, and was authorized to collect and receipt for premiums, either before or after the delivery of a policy. Under elementary rules his representations and statements, within the line of that duty, would be binding upon the principal.

This authority qualified the agent to impart information with respect to things which had already been done as to the insurance, as well as to impart information as to things to be done by the applicant. How else could a contract be consummated? The insurance company could only speak through its agent, until a written contract was effected based upon representations and negotiations preceding and preliminary to the consummated contract. The company having intrusted to its agent, Peters, the responsibility of closing the contract with Shively by collecting the premium on the policy, which only remained to be delivered to become effective, it would not be permitted to repudiate the agent’s representations' in respect thereto after a loss had occurred.

After the issuance and mailing of the policy to Peters to be delivered to the assured, nothing remained to be done on the part of the company. Shively had paid the premium in advance of the delivery, and therefore nothing remained to be done on his part to fully consummate the contract. The delivery of the policy to Peters to be by him delivered to the assured, was a delivery to Shively, the premium having been paid. ’ Peters was merely the medium through whom the company delivered the policy to Shively. The contract was complete; nothing on the part of either of the contracting parties remained to be done.

If Peters, as agent of the company, had no power on behalf of the company to make, modify, alter or change a contract, he clearly could have no power to annul a contract which the company had made. To say that the withholding of delivery of the policy could in any manner affect the rights of the parties under it, would be to hold that Peters had power not only to “modify” a contract “on behalf of the company,” but to alter, change, recall or cancel a contract already made by the company.

"We think the mailing of the policy by the company to' Peters, to be delivered to the assured, effected a delivery to Shively, as fully as if the policy had been mailed direct to Mr. Shively (he having paid the premium), and that all copditions precedent to the taking effect of the policy had been performed, and the policy was in full force at the death of the assured.

The general rule of law imputing to a principal notice given to or possessed by his agent, applies to insurance not less than to other principals. While principals in this business have taken 'greater pains than those in any other to exempt themselves from the operation of this rule, they have been generally, if not universally, unsuccessful. Policies usually contain many conditions and restrictions inserted for the purpose of relieving the insurer from liability for all acts done by and all notice giveix to, and all knowledge acquired by their agents.

Nevertheless, irrespective of the stipulations contained in, the policy, if it can be said that in doing any act. one was in fact the agent of the insurer and acting as such, his principal, though without the actual knowledge possessed by the agent, must be deemed to have acted with such knowledge and held to be bound or estopped to the same extent as if the agent had actually imparted to his principal knowledge of all the material facts known to him when acting for his principal.

Generally, the breach of a condition in a policy of insurance does not forfeit it absolutely. The condition was inserted for the benefit of the insurer, who may avail himself of it or not, as he may choose, after receiving information of the facts. We think the better rule is that he must act with at least reasonable diligence in asserting his right of forfeiture, and can not leave the assured under the delusion that his policy remains in force, and then inform him to the contrary after he has suffered the. loss, against which he sought to indemnify himself by the insurance.

Conceding that the knowledge of the cause of forfeiture is brought home to the insurer, he must within reasonable time act upon it, and failing to notify the assured of any action imperiling his rights, the forfeiture must be deemed, waived. The usual mode of notification to an insured is by the cancellation of his policy. Hence, a failure to cancel when the insurer has notice of the cause of forfeiture is generally deemed an election that the contract may remain in force, and estops the insurer from subsequently insisting on a cause of forfeiture.

This rule would apply with great force in the case at bar to estop the company from insisting on the forfeiture while it held the premium and refused to return it upon demand. The retaining of the money with knowledge that Shively was not in as good health when the money was paid as when the application was made, would be deemed an election on the part of the company that the policy remain in force, and would estop the company from subsequently, and especially after the loss had occurred, insisting on a forfeiture.

Here the company was speculating on the life of Shively— gambling on the chance of his getting well or dying. If he recovered the company would deliver the policy; if he died it would return the premium. That is, the company would hold his insurance and receive the benefit of the premium if Shively recovered; if he died it would return the premium. This action of the company was manifestly unfair and was in violation of its plain duty. '

It was the duty of the agent to either deliver the policy or return the premium upon demand. Refusing to do either operated as a fraud upon the insured. When the company refused to deliver the policy it was bound, under every condition under which it accepted payment, to return the premium, and this duty was all the more incumbent on the company when it had knowledge, as it did at the time of the demand, that Shively was not then in as good health as when the application was made. Failing to do so may well be held to estop the company to defend against the policy after loss.

We have examined many of the authorities cited by able counsel for plaintiff in error in support of their contention, and we have concluded that they are not in conflict with the conclusions we have reached.

The court finds no reversible error in the record, and the judgment of the court of common pleas is affirmed with costs, but without penalty.


text:
    DIVORCE AND ALIMONY.
    [Hamilton (1st) Court of Appeals,
    January 10, 1914.]
    Lucile Lawson Baker v. Thorne Baker.
    1. In Appellate Court All Issues of Fact Reopened to Determine Proper Alimony.
    On appeal .from a decree granting alimony, notwithstanding a divorce is also granted and cannot be disturbed, all the issues of fact upon which the rights of parties with respect to alimony depend, are reopened for determination of the question of proper alimony.

      2. Alimony in Gross Rather than Continuous Allowance Preferable in Case Lives of Parties Diverge.
    A gross' sum of alimony, rather than an allowance in the form of a continuing order, payable monthly, is to be preferred in a case where the lives of the parties divorced, there being no children, will diverge, especially since under Sec. 11991, the wife cannot be divested of her inchoate right of dower in property owned by her husband during coverture.
    Appeal from common pleas court.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff.

      John C. Healy, for defendant.
   PER CURIAM.

Under the rule laid down in Cox v. Cox, 19 Ohio St. 502 [2 Am. Dec. 415], on an appeal from a decree for alimony to this court all the issues of fact upon which the rights of the parties depend with respect to alimony are reopened for trial, notwithstanding a divorce was granted in the court below. This divorce is unaffected by the appeal, and this court has no power to review or disturb that part of the decree which relates to the divorce, although the correctness of the decree made by the lower court may well be doubted from a review of the evidence before us. That decree is now a finality and so fixes the status of the parties as they now appear before us that it becomes an element of consideration in determining the question of alimony.

The court has carefully considered all of the evidence submitted to us, which comprises all of the evidence taken in the court below and some further evidence submitted in relation to the property of the respective parties. After full consideration the conclusion is reached that plaintiff is entitled to a judgment against defendant, for permanent alimony in the sum of $7,500, this sum to be made payable, without interest, in installments, extending over a period not to exceed four years — the time and amount of such installments to be agreed upon by the parties before the entry of decree, and upon failure of such agreement to be fixed by the court.

In a ease of this kind, there being no children, and the probabilities being that the lives of the parties will hereafter diverge, we see no reason for making an allowance of alimony in the form of a continuing order payable in monthly installments, and believe that the payment of a fixed amount within a short time is more in compliance with the provisions of law and will better serve the welfare of both parties. And in fixing the amount named we have in mind that under the provisions of Sec. 11991 G. C. as construed by the Supreme Court in DeWitt v. DeWitt, 67 Ohio St. 340 [66 N. E. Rep. 136], the court is without power in this case to divest the wife of her inchoate dower in the real estate owned by the husband during the coverture. A counsel fee of $500 was allowed plaintiff in the court below, and if this amount has not been paid by the defendant, the decree in this court. should provide for its, payment.


author: JONES, O. B., J.

text:
    EVIDENCE — WITNESSES.
    [Clermont (1st) Court of Appeals,
    May, 1913.]
    Swing, Jones and Jones, JJ.
    Cincinnati, Milford & Loveland Trac. Co. v. Vena Hatfield.
    Adverse Witness may be Contradicted or Impeached.
    An adverse witness may, on proper foundation being laid, be contradicted or impeached by proof of his statements or acts inconsistent with his testimony on the trial.
    Error to common pleas court.

      Thorne Balter and Eli K. Spiedel, for plaintiff in error.

      C. O. Kearns, Louis Kicks and Griffiths <& Nichols, for defendant in error.
   JONES, O. B., J.

This is a proceeding to reversé the judgment obtained against the plaintiff in error by Vena Hatfield, defendant in error, for an injury claimed to have been received in attempting to board one of its traction cars as a passenger, at Conover’s stop, in Clermont county, Ohio, in February, 1908. The car had stopped at that station for the purpose of taking on passengers. Her father and brother had preceded her in boarding the ear, and she was in the act of getting on the car with one foot on the step and her left hand holding to one of the handle bars, when the car was started and she was thrown from the step, and her hand and wrist slipped through the handle bar between it and the end of the car in such a way that she could not withdraw it, and she was dragged for some little distance— about seventy-five or a hundred yards — before the car was again ■stopped and she was released and taken on the car. As a result of said injuries her arm became stiff and she-lost the entire use of the elbow joint. It is apparent that the injury was not given the prompt attention which it deserved, as no regular physician was called to treat it until she went to the hospital about four months after the accident.

There is considerable conflict in the evidence, the traction ■company denying that the accident occurred at all upon its car, and the case has been tried before a jury three different times resulting each time in a verdict for the plaintiff. The present verdict of $4,000 was reduced by consent of plaintiff, at the suggestion of the trial judge, by remittitur of $1,400.

A number of errors are urged and fully argued by counsel for plaintiff in error, but a careful examination of the entire record fails to show us any prejudicial error as against plaintiff in error, or any reason why the verdict of the jury should be •disturbed by a reviewing court.

It is specially contended by counsel for plaintiff in error that the testimony of the witnesses Cherry and Johnson as found in the present record is the same as the testimony of the same witnesses in the last previous trial, which was found by the Supreme Court in Cincinnati, M. & L. Trac. Co. v. Hatfield, 86 Ohio St., 356, to have been hearsay. Counsel are not accurate in this contention, as the testimony of the witness Johnson is not found at all in the present record, and the only testimony given by the witness Cherry is the statement which directly contradicts the testimony of the witness Jap Slone, the foundation for such contradiction having first been laid by asking the ■same question of Slone. The testimony given by both the witnesses Cherry and Johnson, in the previous trial, contains ■objectionable hearsay outside of that testimony of the witness Cherry which is reported in this record and to which exceptions, had been reserved, and the ruling of the Supreme Court in basing the reversal in part upon the improper admission of that hearsay testimony was undoubtedly correct. The court did not-point out the particular question and answer in the testimony of the witness Cherry which alone appear in this record, as being-embraced in such objectionable hearsay, and no doubt referred to the other objectionable testimony. Because we think that. Cherry’s testimony in this case is competent as coming within the rule laid down in Abbott Trial Brief (Civ. Jury Trial), 176, and Attorney-General v. Hitchcock, 1 Exch. 99; Kent v. State, 42 Ohio St. 426; as this testimony involves a question vital to the-case, being whether the injury was caused by the traction company, or by a fall on the ice, or by scuffling, and the testimony of Cherry was properly introduced as proving that the witness. Slone had made a statement to him contradicting other parts, of his testimony in which he denied any knowledge of an injury to her by the traction company.

The admission of so much of Cherry’s testimony as is contained in this record is not therefore; in the opinion of this-, court, prejudicial error or in conflict with the ruling of the-Supreme Court.

Judgment affirmed.

Jones, E. H., concurs.

Swing, P. J., not sitting.


author: JONES, E. H., J.

text:
    BANKS AND BANKING — EVIDENCE.
    [Hamilton (1st) Court, of Appeals,
    July 12, 1913.]
    Swing, Jones and Jones, JJ.

      In re Metropolitan Bank & Tr. Co.
    Minutes of Bank Directors’ .Meeting and Parol Evidence Competent in Action against Bank Showing for Whose Benefit Promissory Note Was Made.
    A bank having borrowed money on a promissory note signed by some of its officers and others signing individually, to which the defense is set up in an action thereon by the state bank examiner, who has been called upon to liquidate the bank, that the claim should not be charged against the bank for the reason that the name of the bank does not appear on the note, the minutes of the directors’ meeting which authorized the loan, and parol testimony as to the identity of ■ one signing “cashier” after his name, constitute competent evidence as to the purpose of its execution and' the object for which it was used.
    Appeal from common pleas court.

      Peck, Shaffer & Peck, for intervenor.

      Robert A. Black, for defendant.

      Affirmed, no op., Metropolitan Bk. & Tr. Co. In re, 90 O. S. 000; 59 Bull. 377.

   JONES, E. H., J.

This cause comes to this court on appeal from a judgment entered in favor of the Second National Bank of Cincinnati, Ohio, on its intervening petition. Said intervening petition states that said bank is the owner and holder of a certain promissory note, setting out a copy thereof, signed as follows:

“Chas Herbert Jones, Leslie Webb, John A. Ringgold, H. H. Friend, cashier, T. F. McClure, trustee, T. F. McClure, C. W. Bruns, John J. Bruce.”

There are twelve endorsements showing interest paid upon said note, which interest the evidence shows was paid by the Metropolitan Bank. The intervening petition then proceeds as follows:

“This intervenor says that on or about the 29th day of August, 1908, the Metropolitan Bank & Trust Company desired to borrow from the Second National Bank of Cincinnati, the sum of $20,000 and presented to said Second National Bank the note above set,forth as its note. That this applicant received said note as the note of the said Metropolitan Bank & Trust Company, and paid to said company said sum of $20,000. That said company has paid the interest on said note at the times shown by the endorsements thereon.”

The petition then states that said Metropolitan Bank is now in liquidationthat upon a certain date the applicant presented to the superintendent of banks a duly authenticated and verified statement of said,claim, and asked that said claim be allowed as a valid claim against the Metropolitan Bank & Trust Company; and that the same was rejected. The petitioner then prays that the court “may adjudge said claim to be a valid claim against the Metropolitan Bank & Trust Company, and order said Frank E. Baxter as such superintendent of banks in charge of the assets of said company to allow the same as a valid claim, entitled to dividends from the assets of said company, and for all other relief proper in the premises.”

By agreement the cause was submitted to this court upon a transcript made of the testimony given in the court of common pleas. Objection is made to the admission of all the evidence contained in said transcript which tended to explain the official character of the signers of said note and their relation to 'the Metropolitan Bank & Trust Company, as well as to the minutes of the meetings of the directors of said bank showing authority for the borrowing of the $20,000 represented by the note in controversy. Counsel for the state banking department in resisting the allowance of this note, and in support of his objection to said evidence argued with great force and ability that the note speaks for itself; that under our negotiable instrument laws no one can be held liable upon a note as maker whose name does'not appear thereon. For this reason he claims ail extraneous evidence to be inadmissible and irrelevant, and argues that inasmuch as the name of the Metropolitan Bank does not appear upon said note, it can not be held liable.

We are not inclined to think that the court would be justified in excluding the evidence objected to. The intervening petition alleges and the notes show that one of the signatures thereon was that of “H. H. Friend, Cashier”; another signature is that of “T. F. McClure, Trustee”; the remaining signatures seemed to be individual signatures. We are of opinion that the signature of Mr. Friend as cashier may be explained by parol evidence; and that the minutes of the directors’ meetings may be offered for that purpose. Upon that ground, therefore, a great deal of the evidence objected to becomes admissible.

Again, this is not an action at law. There is no prayer for a money judgment and the case it not one triable by jury. If it were, there would be no right to appeal. Under the allegation of the petition that the Metropolitan Bank desired to borrow from the Second National Bank this sum of money, and that said bank did borrow- said sum and paid the interest thereon, and that the Second National Bank took said note as the note of said Metropolitan- Bank & Trust Company, and the same being proper averments, we are of the opinion that the evidence was properly received below, and should be considered here. Having so ruled, there is but one conclusion to be reached from this evidence, and that is the conclusion reached by the court below when passing upon it; the evidence shows clearly that the proper officers of the Metropolitan Bank authorized the borrowing of this sum of money from the Second National Bank; that the note given the latter bank was intended as an obligation of the Metropolitan Bank; and that -whether it was so intended or not the money, as the petition avers, was received from the Second National Bank by the Metropolitan Bank, placed with its fund and used by it. The defense interposed to the allowance of this claim is therefore a purely technical one. The obligation was recognized over and over again by the payment of the twelve installments of interest.

Upon the evidence therefore we think the claim must be allowed, and the prayer of the intervenor -will be granted. ■

Swing and Jones, JJ., concur.


author: JONES, J.

text:
    CRIMINAL LAW — NEW TRIAL.
    [Hamilton (1st) Circuit Court,
    December 14, 1912.]
    Smith, Swing and Jones, JJ.
    Ernest Armstrong v. State of Ohio.
    •Accused Can Not Demand that He be Present at the Hearing of Motion for New Trial as Constitutional Right.
    The hearing of a motion for a new trial is not a part of the trial; hence the presence at the hearing of such motion of one convicted of a crime is mot necessary and it is error for the trial judge to refuse to hear and determine same on account of accused’s absence.
    Error to common pleas court.

      Rulison <& Rose, for plaintiff in error:
    Cited and commented upon by the' following authorities: Lee v. State, 32 Ohio St. 113; Ammon v. Johnson, 2 Circ. Dec. 149 (3 R. 263) ; Bassett v. United States, 76 U. S. (9 Wall.) 39 [19 L. Ed. 548] ; Lange, Ex parte, 85 U. S. (18 Wall.) 163 [21 L. Ed. 872] ; 12 Cyc. 783; Wharton, Crim. Proe. (9 ed.) Sec. 913; Millikin v. State, 21 Ohio St. 637; 29 Cyc. 727; United States v. Malane, 9 Fed Rep. 897; Holmes, Ex parte, 21 Neb. 324 [32 N. W. Rep. 69] ; Hogue v. State, 13-23 O. C. C. 567 (3 N. S. 315) ; Lisberger v. State, 29 O. C. C. 394 (10 N. S. 66) ; Davis v. State, 19 Ohio St. 270; Palmer v. Slate, 42 Ohio St. 596; Jones v. State, 26 Ohio St. 208; 1 Bishop, Crim. Proc. '(3 ed.) See. 276; 6 Am. & Eng. Ene. Law (2 ed.) 997; State v. Hoffman, 78 Mo. 256; State v. Lewis, 80 Mo. 110; Sweat v. State, 4 Tex. App. 617; Berkley v. State, 4 Tex. App. 122; Gibson v. State, 3 Tex. App. 437; Hooker v. Commonwealth, 54 Ya. (13 Gratt) 763; Bolls v, State, 52 Miss. 391.

      Thos. L. Pogue, Pros. Atty., and Simon Ross, Asst. Pros. Atty., for defendant in error.
   JONES, J.

We are of the opinion that the court erred in refusing to hear and determine the motion for a new trial on its merits, and, until such hearing by the trial court, this court is without jurisdiction to pass upon alleged errors occurring at the trial.

The plaintiff in error has a statutory right to have his motion determined in the court below. But we hold that he has no constitutional right to be present at the hearing, as same is no part of the trial.

The court below is, therefore, directed to hear and pass upon the motion for a new trial upon the grounds therein stated.

Smith and Swing, JJ., concur.


text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Mahoning (7th) Court of Appeals,
    December 8, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    Barnhart Gerthung v. Stambaugh-Thompson Co.
    Abrogation of Defense of Contributory Negligence and Fellow Servant Doctrine does not Enlarge Basis of Recovery Beyond Ordinary Care.
    The Workman’s Compensation act, Sec. 1465-60 G. C. (102 O. L. 529, Sec. 21-1) which provides that an employer of five ■ or more workmen, who has not paid the premiums prescribed by said act, shall be liable in damages to any employe for injury caused by “the wrongful act, neglect or default” of such employer, his officers, agents or other employes, takes away the defenses of the fellow servant rule, contributory negligence and assumption of risk, but does not enlarge the basis for recovery on the grounds of negligence beyond what it existed at common law, and the employer is only required to exercise ordinary care under all the circumstances of the case. The only test of liability under such sections is whether the employer exercised the degree of care that ordinarily prudent persons are accustomed to exercise under the same or similar circumstances.
    [Syllabus by the court.]
    Error to common pleas court.

      W. R. Stewart, for plaintiff in error.

      Arrel, Wilson, Harrington A; DeFord, for defendant in error.
   NORRIS, J.

Plaintiff in error was plaintiff below and brought suit against the defendant in error for personal injuries which he claims to have sustained while in the employ of the defendant in error, by reason of its negligence in not furnishing a proper horse for him to drive. The petition further states that at the time of receiving the injuries the defendant had not availed itself of the compensation act or paid into the insurance fund of the state any premium or money, as- provided . by statute, although defendant employed regularly more than five workmen in and about its establishment. '

The answer admitted the employment of the plaintiff and set up other defenses, and further denied that it was one of the employers contemplated under the compensation act and denied that it was in any way controlled by said act, or that in so far as the defendant is concerned it has any force, value or application.

The ease was tried to a jury and evidence offered tending to support the allegations' of the petition, and that the defendant did at that time employ more than five men in and about its establishment. At the close of the evidence the plaintiff requested the court to charge the jury before argument certain propositions of law separately. The first which was given was as follows:

“The court instructs you, as a jury, if you find from a preponderance of the weight of the evidence that the defendant, at the time of the incurrence of the injury to the plaintiff, had in its employ five or more workmen regularly in the same business, or in- and about the same establishment, and further that the defendant, at that time had not paid any premium into the state insurance fund of Ohio, then, as a matter of law, the defendant is liable to the plaintiff for any injury sustained by him in the course of his employment by the defendant, or any of the defendant’s officers, agents or employes.”

The plaintiff also asked that the following instruction be given to the jury, which was refused and exception noted:

“The court says to you in this action, if you find that the defendant has not availed itself of the Workman’s Compensation act, the test of liability is not whether the employer exercised ordinary care in the situation complained of, but whether said employer, the defendant, was guilty of any wrongful act, neglect or default which caused plaintiff’s injuries.”

The refusal of the court to give this last request is the only error assigned in the record. It is claimed on the part of the plaintiff in error that by virtue of Sec. 1465-60 G. C., known as part of the Workman’s Compensation act, that a different and higher degree of care is required of employers who are within the province of that act and do not pay into the state insurance fund the premium provided for by said act.

That section reads as follows:

“All employers who employ five or more workmen or operatives regularly in the same business, or in and about the same establishment, who shall not pay into the state insurance fund the premiums provided by this act, shall be liable' to their employes for damages suffered by reason of personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer, or any of the employer’s officers, agents or employes, and also to the personal representatives of such employes, where death results from such injuries, and in such action the defendant shall not avail himself or itself of the following common law defenses: The defense of the fellow servant rule, the defense of the assumption of risk or the defense of contributory negligence.”

The expressed purpose of that section seems to be to take away from employers who do not avail themselves of the act, the common law defenses of the fellow servant rule, the defense of the assumption of risk, and the defense of contributory negligence.

Does the act in addition to that require a higher degree of care than was required at common law ? Or, in other words, is. the employer, failing to pay the premium required by the act, required to exercise more than ordinary care under the circumstances of the particular case ? It will be noticed that this clause making the employer liable for personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer, is taken substantially from the wrongful death statute wkich is Sec. 10770 G. C., which, reads in part:

“When the death of a person is caused by wrongful act, neglect or. default, such as 'would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, ’ ’ etc., a recovery may be had.

It has always been held under that statute that the want of ordinary care under the circumstances was the test of liability when a question of negligence was involved in the case. It nowhere appears in the compensation act that the legislature intended, in using those words, that they should have any different meaning than that which has heretofore been given them by the courts of the state. Indeed, we do not think the courts .of Ohio have given any sanction to the attempted fine distinction between the degrees of negligence which are sometimes named as grounds as slight, gross or ordinary.

Commencing in the case of Cleveland, C & C. Ry. v. Terry, 8 Ohio St. 570, reading from page 581 from the opinion of the court, it is said:

•“It is obvious from this definition that the ordinary care required by the rule, has not only an absolute, but also a relative signification. It is to be such care as prudent persons are -accustomed to exercise, under the peculiar' circumstances of •each case. If called into exercise under circumstances of peculiar peril, a greater amount of care is required than where the •circumstances are less perilous; because prudent and careful persons, having in view the object to be obtained, and the just Tights of others, are in such eases, accustomed to exercise more -care than in cases less perilous. The amount of care is indeed increased, but the standard is still the same. It is still nothing añore than ordinary care under the circumstances of that particular case. The circumstances, then, are to be regarded in -determining whether ordinary care has been exercised.”

To the same effect is Weiser v. Railway, 6 Circ. Dec. 215 (10 R. 14), in which the court quotes from Cleveland, C. & C. Ry. v. Terry, supra. Again, in the case of Cleveland, C. C. & I. Ry. v. Elliott, 28 Ohio St. 340, reading from the opinion of the court on page 357, it is said:

“A large amount of learning is developed in the boobs, apon the subject of the' various degrees of care and their corresponding phases of negligence. It may perhaps be doubted' whether the elaborate attempts to define the exact distinctions-between the adjectives slight, ordinary and gross does not tend,, not only to mislead juries, but sometim.es to result even in' judicial confusion. ’ ’

And further the court says:

“There is pertinency in the remark of Baron Rolfe, Wilson v. Britt, 11 M. & W. 113, and Willis in L. R., 1 C. P. 640, that gross negligence is merely negligence with the addition of a vituperative epithet. When it is said that a person must exercise ordinary care, the statement is so plain in its language and so simple in the idea to be conveyed, that if the proposition is not comprehended in this form, mere words will probably occasion less intelligence. ’ ’

Again, to the same effect is Telegraph Co. v. Griswold, 37 Ohio St. 301 [41 Am. Rep. 500], in which the Supreme Court-quoted from Lord Denman:

“When we find gross negligence made the criterion to determine the liability of a common carrier who has given the-usual notice, it might perhaps have been reasonably expected that something like a definite meaning should have been given to the expression. .It is believed, however, that in none of the-numerous cases on this subject is any such attempt made, and it may well be doubted whether between gross negligence and. negligence merely, any intelligible distinction exists.”

To the same effect is Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507], and Columbus & X. Ry. v. Webb, 12 Ohio St. 475, 496.

The doctrine of the Ohio cases cited is supported by the. Supreme Court of the United States in the ease of Milwaukee & St. Paul Ry. v. Arms, 91 U. S. 489, 494 [23 L. Ed. 374].

From these authorities we are led to the conclusion that the rule which has prevailed in Ohio as to the amount of care-required, may be different in and under conditions, but that, the degree required is that of ordinary care under all circumstances. As said in one of the cases, the degree of care where a person operates a railroad train going through the country at a high rate of speed is greater in amount than that of a. person who runs a stage coach, but in both instances it is the •degree of care that ordinarily prudent persons are ordinarily ■accustomed to exercise under the same or similar circumstances, but we find this question is settled by our own Supreme Court in the case of State v. Creamer, 85 Ohio St. 349 [97 N. E. Rep. 602; 39 L. R. A. (N. S.) 694], reading from the opinion on page 386, it is said in construing this statute:

“Employers of five or more who.do not pay premiums into the fund are deprived in actions against them of the common law defenses of the fellow servant rule, the assumption of risk and of contributory negligence.”

It is not intimated that they are also held to a higher degree of care. Again, on page 392:

“All employers who shall not pay into the insurance fund, -it # shall be liable to their employes for damages, * * * ■caused by the wrongful act, neglect or default of the employer, his agents, etc., and in such cases the defenses of assumption ■of risk, fellow servant and contributory negligence are not ■available. So that an employer who elects not to come into the plan of insurance may still escape liability if he is not guilty of wrongful act, neglect or default. His liability is not absolute ;as in the case of the New York statute hereinafter referred to. .And it cannot be said that the withdrawal of the defenses of ¡assumption of risk, fellow servant and contributory negligence, ■as against an employer who does not. go into the plan, is coer■cive, for,such withdrawal is in harmony with the legislative policy of the state for a number of years past. ’ ’

Now, if this act also held the .employer to a higher degree ■of care .because of his failure to go into the plan of insurance, it seems to us that the Supreme Court would have referred to -that fact, and such finding might have led them to a different decision as to the constitutionality of the act.

Again, on page 393:

“As to the employe, if the parties do not elect to operate under the act, he has his remedy for the neglect, wrongful act or default of his employer and agents as before the law was passed, and is not subject to the defenses named.”

Our attention has been called to the ease of Schaefer v. Tool Co. 24 Dec. 266, where the superior court of Cincinnati reached a different construction of that section. We think the decision in that ease is in conflict with the authorities we have cited and many others that might be noted, and that the section in question if the employer does not pay the premium required in the insurance act, is only held to the exercise of ordinary care under the circumstances as heretofore-defined in Ohio.

The judgment will be affirmed.

Metcalf and Pollock, JJ., concur.