author: HULL, J.

text:
    RAILROADS — NEGLIGENCE.
    [Huron Circuit Court,
    1901.]
    Haynes, Hull and Mooney, JJ.
    (Mooney, J., sitting in place of Parker J.)

      Mary Crawford v. New York, Chicago & St. Louis Railroad Co.
    1. Voluntary Assumption op Risk by Conductor.
    Where the conductor of a freight train, in violation of a rule of the railway company voluntarily left the caboose while the train was in motion, and placed himself in a position of danger, by stepping out upon the platform of another car, to observe the station lights, which he might have seen from the caboose, such conductor must be held to have assumed the dangers of such position, and his representatives are not entitled to recover for his death, of which such conduct was the proximate cause.
    2. Delay in Changing Lights — Movements of Train.
    Where the rules of a railroad company provide that block lights at its stations shall show red at all times, against which trains cannot proceed unless furnished with clearance cards, except when the white signal is given, indicating that there are no orders for the train and allowing it to continue, the fact that a signal light remains red until an approaching train has nearly stopped, and then is changed to white, is not such a violation of the rules relating to the issuance of clearance cards as to constitute actionable negligence ; and a conductor, being required to know the rules and having an opportunity to observe the signals, and in fact seeing them, is charged with notice of and required to anticipate the movements of the train under such conditions; and knowing that it will stop or start as the engineer observes the light to be white or red, the absence of a rule requiring a signal by whistle or otherwise before stopping or starting the train under such circumstances is immatetial and cannot be regarded as a proximate cause of the injury of a conductor who is thrown off by such stopping or starting — the change in the color of the lights giving him full notice.

      8. Assumption op Risk in Use of Defective Car.
    While a caboose, remodeled from a freight box car without platforms or hand holds at the ends, and with nothing to save or prevent a man from falling off, is unsuitable and cannot be commended for such purposes, if it is in general use on the road, an employee (a conductor), having used such a car for more than a year without complaint and having knowledge of its defects, must be held to have assumed whatever risk there was in occupying the same.
    4 Jury not Permitted to Guess at Cause of Accident.
    Where an injury may have been caused by one of two things, one" of which might have happened through causes without negligence on the part of the defendant, the jury will not be permitted to guess that it happened on account of the other. So where it is in issue whether a conductor fell or was thrown from a car by a jar or sudden movement of the train, to recover it must be established by evidence that the jar caused the accident.
    6. Ballast Piled Along Railway, not Negligence.
    The fact that gravel, intended for ballast, had been deposited along a railroad track, and was permitted to remain there for several weeks, in piles a few inches high, does not constitute negligence which will authorize recovery for the death of a person thrown from the train, on the theory that such person might have been prevented, by the gravel, from escaping injury; and particularly where the circumstances indicate that his death could not be attributed to such a cause.
    Jesse Vickery and Horace Andrews, for plaintiff in error.
    C. P. & L. W. Wickham, for defendant in error,
    cited:
    The court is not bound to submit a case to the jury simply because the plaintiff alleges in a petition that some act or omission is negligent. There must be some proof to support it. In this case there was none. Mad River & R. E. R. R. Co. v. Barber, 5 Ohio St. 541 [67 Am. Dec. 312]; Rake Shore & M. S. Railroad Co. v. Knittal, 33 Ohio St. 468.
    Where there was evidence that the risk was one assumed by an en-gineman, and there is no conflict, it is the duty of the court to direct a verdict for the defendant. Southern Pac. R. R. Co. v. Johnson, 69 Fed. Rep. 559; Rake Shore & M. S. Ry. Co. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26]; Slater v. Jewett, 85 N. Y. 61 [39 Am. Rep. 627].
    It is a well settled general rule that the employe cannot recover for injuries caused by defects of which he has knowledge. 3 Elliott Railroads, Sec. 1311; Hesse v. Railroad Co., 58 Ohio St. 167 [50 N. E. Rep. 354]; Coal and Car Company v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857] ; Sec. 1312.

      Prima facie disobedience is always negligence, and it is only in clear cases that disobedience should be held to be excused. 3 Elliott Railroads, Sec. 1314.
    If the employee has suffered an injury brought about by a violation of the plain instructions of his principal, he cannot hold his principal liable therefor. Wolsey v. Railroad Co., 33 Ohio St. 227.
    Where a company adopts certain rules for the protection of its employes, and an employe disregards them and adopts rules of his own which fail, and by reason of that failure he is injured, such company is relieved from responsibility for such injury. Johnson v. Railroad Co., 5 Circ. Dec. 290 (11 R. 558). See also Pennsylvania Co. v. Rangdon, 1 Am. & Eng. R. R. Cas. 87.
    It is not necessary for a party to plead the rules or usages of a railroad company to entitle him to put the same in evidence. Henry v. Railway Co., 21 Am. & Eng. R. R. Cases, 644; Same, 647.
    Where it appeared that the plaintiff’s intestate, an engineer in de-endant’s employ, was killed by the derailment of his train, caused by a subsidence of the track, and that if he had not disregarded an order of the railroad company through its engineer to run slow — which the evidence showed eight or ten miles an hour — at the place in question, the accident would not have happened, or would not have had any serious results, the contributory negligence of the deceased precluded recovery. 8 Am. Neg. Rep. 335; 5 Am. Neg. Rep. 55; 3 Elliott Railroads, Sec. 1274; 3 Elliott Railroads, Sec. 1282; Pennsylvania Co. v. Whitcomb, 111 Ind. 212,219 [12 N. E. Rep. 380]; 3 Elliott Railroads, p. 2021, n. 2.

       For decision in common pleas, see 12 Dec. 17.

   HULL, J.

Plaintiff in error in this action was plaintiff below and judgment having been rendered against her in the court of common pleas, this proceeding in error is prosecuted to reverse that judgment.

She brought her action as administratrix of the estate of John M. Crawford, deceased, under the statute to recover for the death of Crawford, who was the husband of the plaintiff and whose death, it is claimed, was caused by the negligence of the railroad company.

The accident in which Crawford lost his life occurred in May, 1898. He was for a long time, prior to the accident, employed by the railroad company, and at the time of his death, was a freight conductor and had been for some time prior to his death. He was the conductor of the train in question, and operated the caboose from which he fell, for about a year prior to his death.

On the night of the accident, he left Bellevue with his train about 11 o’clock, or a little after, proceeding eastward. When they were near. the station at Kimball, which is a few miles east of Bellevue, Crawford was in the caboose, the train slackened its speed as they approached the station of Kimball, which is also a crossing of the Nickel Plate (the name by which defendant is called) with the Baltimore and Ohio railroad. The signal light at the station, as they approached, was red, which indicated, as long as it continued red, that the train was to stop at that station for orders, and pursuant to this signal, as the train approached the station, the engineer put on the brakes and slackened the speed of the train.

Without, at this time, going into the details of the accident, I will say that Crawford was sitting in the caboose as they approached the station, and before they reached the station or crossing, he stepped out of the caboose on to, or across on to, a gondola freight car which was just ahead of the caboose, and while there he attempted to look out to see how the light was. There was a brakeman there also by the name of Mahoney, and while at this place and in this position, the light was changed from red to white, the white light, meaning that the train might proceed. Crawford then started back to the caboose, and as he was going back, in some way he fell off the train and was run over, probably by the four wheels on the south side of the caboose, and when the . train stopped, it backed up a little so that the hind wheel of the hind truck ran over him again and he was instantly killed, or died within a few minutes after his body was taken from this position, between the wheels.

There are various acts of negligence alleged, and complained of against the railroad company, which it was claimed by the plaintiff was the cause of the death of Crawford.

The case was tried in the court of common pleas court to a jury, and at the conclusion of the testimony for the plaintiff, upon the motion of the defendant, the jury was instructed to return a verdict in favor of the defendant, which was accordingly done and judgment entered thereon. It is this judgment that is sought to be reversed in this proceeding in error.

The amended petition, after setting forth in detail the grievances of which the plaintiff complains, contains a brief summary of the alleged negligence of the defendant, which is as follows :

“ The plaintiff says that said Crawford was without fault or negligence upon his part and that the injury was caused by and on account of the negligent acts of the defendant in the following particulars, to-wit:
“ First: In indicating at said station of Kimball by said red light that there were orders there for said train when in fact there were no orders at said station for said train.
“Second: In leaving said gravel along the side of said track for the length of time described in this petition.
“ Third : In starting said train suddenly and without warning after having given a signal to stop said train for the purpose of receiving said orders.
“ Fourth: In said operator giving to said engineer the signal to proceed without first requiring him to come to a full stop and giving him the said clearance card in accordance with the rule described in this petition.
Fifth : In not providing and enforcing a rule requiring said engineer to give a signal by whistle or otherwise that he was about to increase the speed of said train suddenly after first having given a signal to stop for the purpose of receiving said orders.
“ Sixth : In using upon said railway'the caboose that was defective, in not having at each end a sufficient platform and a hand-rail upon occasion similar to the one described in this petition.
“Seventh: In not providing a step at the end of such caboose upon which the said J. M. Crawford could stand when about fo alight from said train for the purpose of receiving said orders; and
“Eighth: In not providing at the end of said caboose a guard or rail to which the said J. M. Crawford could cling when about to alight from said caboose for the purpose of receiving said orders.”

The error complained, which practically covers the whole case, is the action of the court in taking the case away from the jury.

' The question is whether, as the evidence stood at the conclusion of plaintiff’s testimony, there was any evidence which ought; under the rules of law, to have been submitted to the jury. If there was no evidence to show negligence on the part of the railroad company, or, if there was evidence which showed, as a matter of law, that the plaintiff’s decedent himself was guilty of contributory negligence, then, as a matter of law, the court properly instructed the jury to return a verdict in favor of the defendant.

It will be well to consider first just what the situation was at the time of the accident. As I have said, Crawford left Bellevue with his train about 11 o’clock that night. As the train approached Kimball, the station in question, which is a few miles east of Bellevue, he was sitting in the caboose looking out of the window from the side of the car, and from that point could observe the light as they approached the station, and as the train approached the station the engineer gave a long whistle, a signal to stop, and slackened the speed of the train, the signal light at the station being red. The rules of the company provided that the light should be kept red at all times except when a signal was given to the train that there were no orders for it and that it might proceed; that is to say, the proper color for the light to be at all times was red, and if there was no reason why the train should stop, if there were no orders for it, then the operator changed the color to white and the train might proceed.

Then the light being red, as the train approached, the engineer slackened and the conductor could have seen that the light was red. He knew that unless the light was changed, the train would stop for orders which it would be his duty to get.

The brakeman, Mahoney, was sitting on the gondola car just ahead of the caboose. The door in the end of the caboose was open, and as Crawford sat in his car checking up his bills near the window, instead, apparently, of taking particular pains to look at the light himself, he called to Mahoney and asked him how the light was, and Mahoney told him it was red, and then, apparently wishing to see for himself, he came out at the end door and stepped across on to the gondola car. There was no platform on the end of the car. It was a box freight car that had been made over into a caboose and there was nothing there except a narrow step over the draw-bar, probably about eighteen inches wide He stepped on to that and crossed over to the gondola car and sat down on the edge of the gondola and looked around the corner or end of the car to look ahead for himself and see what the color of the light was, the brakeman having said to him before, as the record shows, “ it is red now.”

Mahoney testifies that Crawford came out of the caboose and looked out, and as he looked out, Mahoney testifies, “ I says, all right, it is white.” Then he started back into the caboose. The train, from the time they first began to slacken speed, as they approached the station,— during all that time, the train was continuing to slacken, and we think the record shows very clearly that the train did not stop until after Crawford I ell off, although there may be a word here and there in Mahoney’s testimony which might indicate that it did, but he evidently did not mean to say that, as shown by his whole testimony. The train was continuing to slacken all the time, and Mr. Crawford knew that if the light remained red, that the train would come to, and was required to come to, a full stop, but if the light turned to white, it would proceed without stopping for orders.

The evidence clearly shows that it was the custom for this train to proceed without stopping if the light changed from red to white. We are not able to say, upon examination of the rules, that that would be a violation of the rules, if the light was changed from red to white, although the light had remained red until the train was nearly ready to stop.

Mahoney looked at the light after Crawford came out on the car and said, “ All right, it is white.” Crawford then knew that the train would go ahead. He knew that from the rules. He knew that from custom, and his conduct shows that he knew it, for he at once started back into the caboose upon this information from Mahoney, and he saw or could have seen the light himself.

As Crawford started back into the caboose, the engineer apparently was putting on the air and it caused the cars to run together Mahoney heard the noise and Crawford, being there, must have heard the same thing that Mahoney did, and Mahoney called out to Crawtord and said, “Look out, John. ” Just at that time, or just before that, John had started back toward the caboose. Mahoney says, “ I says, ‘look out, John,’ and with those words I braced myself and the next thing I heard was the rattling of his lamp and he says the caboose fell back on the rail. As the caboose went on to the rail, I hollered and asked him if he was hurt and the next place he was out on the ground.” He got off, and soon after he got off the train stopped and then started up again and he signalled to the train then to stop and they stopped and he found Crawford’s body, as I have already stated, between two wheels, the south wheels of the rear truck. The four wheels had passed over him, then the train had backed a little and the last wheel passed over him again.

There are, as I have said, several grounds of negligence alleged, one of the grounds being that there was no rule of the company requiring the engineer to give a signal when he was about to stop or start his train upon an occasion of this kind, but there was a rule, however, forbidding his starting unless the conductor gave him a signal, but there was no rule requiring him to give a signal when about to stop his train suddenly, and it is argued by the plaintiff in error that the question should have been left to the jury whether ordinary care required the railroad company to have such a rule. The evidence shows, the engineer was trying to stop the train when Crawford fell off, and it is claimed that the danger to trainmen in such stopping of the train is such that ordinary care requires that there be a rule requiring the engineer to give a signal, or at any rate that it was a proper question to leave to the jury.

There was a rule of the company which required the conductor of a freight train, while his train was in motion, to be in his caboose or on the top of the caboose. Rule No. 248 says that the proper place for the freight conductor while his train is in motion is in the cupola of his train, if it have one, so that he may have a full view of his train and enable him to see that his men perform their duty and know that his brakemen come out promptly when necessary, and he must keep a sharp lookout, etc.

Passing at this time to the other question, as to whether there should have been a rule requiring a signal to be given, and whether, the fact that there was not such a rule, contributed to Crawford’s injury. As has been suggested, when this train neared" the station, perhaps forty or fifty cars away, Crawford knew or by looking out of the window at the side of the car, might have known, that the light was red, and that that meant, if it continued red, that his train was to stop; but not caring to rely entirely upon his own observation, for some reason he asked Mahoney, and Mahoney told him that the light was red and he knew that the train, if the light continued red, -would stop. Then, to make observation for himself, or so'that he might be where he could get o3 easily, if the light turned to white, he came out and stepped over onto the gondola car, the light still being red and the train during all of this time slacking in speed and the engineer all this time evidently putting on the brakes for the purpose of stopping the train and finally putting them on with such force that the cars were bumped together, as Mahoney testifies, and finally Crawford is notified by Mahoney calling out to him to “ look out,” that the train was about to stop, that there might be danger. Crawford at that time being about to step from the gondola car to the caboose.

With all of these circumstances, with this notice to Crawford that the train was about to stop, with his knowledge of the rules that it was required to stop if the light was red, with his experience as a railroad man, as an old railroad man, knowing that the train was in the very act of stopping, it seems to us that a signal from the locomotive would not have given Crawford any further notice than he then had of the fact that the train was about to stop. There was every sign, every notice, every indication that could be given, that the train was stopping pursuant to the order that- was given by the red light, and the whistling or the ringing of the bell from the locomotive could have given him no additional information, — could have made no difference with his conduct upon that occasion. It is claimed by counsel for plaintiff in error that ordinary care might require the giving of such signal; and it is claimed the question should have been submitted to the jury as to whether ordinary-care on the part of the railroad company required a rule compelling such signal. But if the absence of such, a signal did not contribute in any way to the injury and death of Crawford, it was not, as the term is sometimes used, “legal negligence ” so far as this case is concerned, that is, negligence directly causing the injury and death complained of. And we find the absence of the signal here or the absence of the rule did not contribute in any way to the injury and death of Crawford.

If, on the other hand, the train had actually stopped on account of the red signal being given, Crawford had notice that the light had been changed from red to white, and he knew that the train would proceed immediately upon its journey and would start at once after the light was changed from red to white. The evidence shows clearly that that was the custom upon this train, although it might be argued that this was a ¡echuical violation of the rule. Still, upon an examination of that rule it is not clear that it would be, — the'rule is No. 522, page 98 of the book of rules: “ A fixed signal must be used at each train order office which shall display red at all times when there is an operator on duty, except when changed to white, to allow a train to pass after getting orders, or for which there are no orders. When red is displayed all trains must ■come to a full stop and not proceed as long as red is displayed, unless furnished with a clearance card on specified form, stating over the operator’s signature that he has no orders for that train.”

It is urged that there should have been a clearance card given. But the rule provides that trains shall not proceed so long as red is dis-. played unless furnished with a clearance card on a specified form. But red was no longer displayed when the light was changed from red to white. The rule proceeds: “The signal must be returned to red as soon as a train has passed. It must only be fastened at red when no operator is on duty.”

But aside from any close construction of this rule, it appears from the testimony that it was the custom of this train, when the light was. changed, for the train at once to proceed. It was their custom, as the uncontradicted testimony shows, to watch for this light, as the train approached, and if it was red, to watch to see whether it would change to white. The light, on the night in question, did not change to white until the locomotive was about opposite the signal station, opposite the light, or perhaps a little past the light. So that in either event, as we view it, whether the train was nearly stopped, or about to stop apparently, or w'hether it had actually stopped and started again, Crawford, with his,knowledge of this rule, and of the custom, was fully notified of exactly what he might expect the train to do, and that the absence of the signal did not contribute in any degree to his injury.

It is urged also that there was .negligence in the operator in displaying the red light as long as he did and not changing it to white; that he should have changed the light sooner, and that holding it red so long, indicated there were orders while there were none.

If this were true, it does not seem to us that that was the proximate cause of Crawford’s injury. Holding the light red did not cause this injury, nor was it caused by changing it to white. Crawford may have taken a position upon the outside of the car which he would not otherwise have taken if the light had turned to white sooner than it did. But we are unable to see that what was done with this light could be regarded as the proximate cause of his injury. As to his going out on the car, his proper place, under the rules, was in the caboose; still, under all the circumstances, it is not necessary to hold that he was guilty of contributory negligence in going outside of the car. Perhaps it would be the natural thing for him to do. Perhaps it was customary, but still if he went outside of the car, under those circumstances, or to the end of the car where there was no platform, on to a freight car, where the rules of the company did not require him to go, and where he was forbidden to go, it would seem as though he took his own chances as to an accident of this kind happening to him.

It appears from some of the testimony,— an answer or two that we find in the record, that it may have been the custom to go ahead over the train and get off somewhere near the middle of the train. Probably it was the custom to go ahead and get off and get orders without compelling the train to come to a full stop. There was no rule requiring this, but a strict reading of the rule would require the conductor to be in the caboose.

As to the caboose itself, it is urged that it was defectively constructed and it must be said that a box freight car remodeled as this one was can hardly be commended as a caboose for men to use in the performance of their duty upon the road. Still it was a car that was in general use upon the road. Crawford had used this very car for over a year and he was fully acquainted with the car and the defects complained of, if any, and that there was no platform at the end of the car; there were no handholds to take hold of and nothing to save a man, or prevent him from falling off, and it is true that there was nothing there but this narrow step to which I have referred ; it evidently was not the purpose or intention that the conductor and brakemen should stand there.

There was, however, at the side of the car, a door; a door and two windows on each side, and the door was provided with a step and with a hand-hold, as shown by one of the pictures attached to the bill of exceptions. The testimony shows that it was the intention that the men should get on and off at the side and not at the end, where it had no platform of any kind, or guard, and only this step about eight inches wide and perhaps eighteen inches long crosswise of the car. But having used this car for this long period of time without complaint and having full knowledge of the defects in the car, it seems to us that under- the well established rules of law, he assumed whatever risk thei'e ■ was in continuing to occupy and use this car. It was something of which he had full knowledge and had had, for more than a year.

But it does not appear, it is not established by the evidence that Crawford was thrown off the car by the reason of any jar. He fell off about that time, and he may have been thrown off by the jar, or he may have missed his footing as he stepped from one car to the other and may have fallen off. All that Mahoney knows is that shortly after he said ‘ ‘ look out, and heard the rattling of his lantern,” Crawford had fallen off the car. He may have been thrown off by the jar, it is true, but that he was thrown off by the jar is hardly established by the evidence.

The Supreme Court has said in a recent case that where an injury may have been caused by one of two things, if one of them might have happened through one of the causes without any negligence on the part of the defendant, the jury would not be permitted to guess that it happened on account of the other.

It was urged further that there was negligence in leaving gravel alongside the track for some two or three weeks before the accident, and that this contributed to the injury, and that if it had not been for the gravel, Crawford might not have been killed. Gravel had been thrown off from the cars in the ordinary course of business for the use of the railroad company and left for a distance of forty or fifty car lengths alongside the track, at the height of not more than a foot, and in some places lower. Where Crawford was killed, according to the testimony, it was four, five or six inches in depth. Gravel had been thrown off for ballast for the road. This track was not in the yards of the company; it was a railroad crossing simply, and we are of the opinion that it was not negligence on the part of the railroad company to leave this amount of gravel which had been put there for use, for two or three weeks, alongside the railroad track. It could not have been anticipated that a man would fall off at this point and fall onto the track between the rails in that way, and that this gravel would or might interfere with his getting out from under the wheels, nor does it appear to us that the gravel did in fact interfere or prevent Crawford from escaping injury.

When he was found, his head was resting outside the rail upon the gravel some five or six inches in height, while his legs and the lower part of his body were between the rails, and the car passed across the middle of his body, crushing him. His arms were thrown in such a way as perhaps might indicate that he had tried to ward off the wheels and to pull himself out from under them. But lying or falling in this position, with the train in motion, the greater part of his body between the rails, his head projecting for some distance over, upon the gravel, we are unable to see how this amount of gravel at that point contributed in any way to his injury or prevented him from escaping.

The injury happened in an instant of time. He fell immediately in front of the wheels of this caboose and they were on him in an instant, in the fraction of a second.

After a full review, of the record in this case, unfortunate as this accident was and terrible a calamity as it was, we are unable to see that there was any evidence tending to show negligence on the part of the railroad company at the time of the accident that contributed to Crawford’s injury or any negligence, or any risk in regard to the construction of the car that he did not himself waive and assume.

We find then, that the court did right, under the rules of law, in directing a verdict in favor of the defendant.

We have examined the exceptions that were taken during the trial of the case, and while some of the testimony to which objection was sustained might have been admitted, we think, as to the custom of stopping at this point without putting in evidence the written rule, still, in the end, that testimony substantially was admitted and the rules themselves were put in evidence so that the plaintiff had the opportunity to present his case fully, and no claim is made here that the plaintiff was prevented by the court from presenting the evidence and all the facts that he cared to present in order to make out his case.

We find no error prejudicial to the plaintiff in any ruling of the. court upon the trial, and the judgment, of the court of common pleas will be affirmed.

       See L. S. & M. S. Ry. Co. v. Andrews, 58 Ohio St. 426; see also Cleveland T. & V. Ry. Co. v. Marsh, 63 Ohio St. 236. — Editor.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    WILLS.
    [Cuyahoga (8th) Circuit Court,
    November 18, 1901.]
    Caldwell, Hale and Marvin, JJ.
    James Silk, Admr., v. John S. Merry et al.
    1. Bequest — Conveyance—Eee Simple and Uiee^Estate.
    A bequest “ I give and devise to my beloved husband * * ® my real property ” (describing it) “ out of which I direct that no debt, legacy or other charge herein provided for shall be paid or taken and the rest and residue of my real property to have and to hold during the term of his natural life ” conveys an estate in fee simple in the property first mentioned and a life estate in the balance.
    2. Words Used Indicate “Distinction — Section 5970, Rev. Stat.
    The words, in such will, “ out of which I direct that no debt, legacy or other charge herein provided for shall be paid or taken ” clearly indicate a distinction between the devises; and, under Sec. 5970, Rev. Stat,, providing that all the estate which testator possesses shall pass unless it clearly appears that he intended to convey a less estate, it can not be said that testatrix in this case clearly intended to convey less than a fee simple.
    3. Word “ and ” not Equivalent to “ and Also.”
    The word “ and” as used in the devise above.'quoted, is not equivalent to “ and also.”

      4. Presumption as to Intention oe Testatrix.
    It may also be presumed, in construing the will in question, that testatrix intended to bequeath to her husband something of substantial value and the fact that a life estate in the property first bequeathed, would have been unprofitable and valueless to him, should be considered.
    5. General Legacies — Paid Out of Personal Property.
    All general legacies are to be satisfied out of personal property before a resort can be had to real estate unless otherwise directed by the will.
    6. Use and Consumption of Personal Property.
    A bequest “ I give and bequeath to my beloved husband so much of my personal property as he may desire to use absolutely in addition to the provision made for him,” etc., conveys the use of all personal property after payment of debts, costs, expenses and legacies, i. e., the right not only to the income but so much of the principal as may be necessary for reasonable comfort and support.
    Appeal.
    Gus Schmidt and J. S. Grannis, for plaintiff.
    Johnson & Hackney, for defendants.
   MARVIN, J.

This cause comes into this court by appeal from an order of the court of common pleas.

The petition was filed under favor of Sec. 6202, Rev. Stat., and was apparently tried in the court of common pleas without any question being raised, either by the court or counsel, as to the jurisdiction of the court to determine the questions sought to be determined in the action, and, except as suggested by the court, no question has been made in this court as to such jurisdiction.

. As all the parties interested in the matter are in court and no question is made as to the jurisdiction, we proceed to dispose of the case upon the assumption that we have such jurisdiction, though the question is by no means free from doubt.

Sarah Silk, who was a resident of this county, died testate on January 6, 1899. Her will which consisted of an original will and codicil, was duly admitted to probate, and James Silk, who is the surviving husband of the testatrix, was duly appointed and qualified as administrator, with the will annexed, of the estate of the decedent, and files his petition in that capacity. A copy of the will including the codicil, is annexed to the petition, and the prayer is that the court determine the true intent and meaning of such will and the proper construction thereof.

The date of the original will is uncertain; the language of the will as to the date, is, “ In witness whereof I hereunto set my hand and seal this first day of July, 1898, A. D. 1892.” And such date is left uncertain by the codicil. The codicil, however, is dated April 27, 1898. It is immaterial, however, whether the original will was executed in 1892 or 1893.

The will and codicil read as follows :

“I, Sarah Silk, of the village of West Cleveland, Cuyahoga county, state of Ohio, being of sound mind and memory, do make and publish this my last will and testament hereby revoking all other wills by me heretofore made.
“Iteml. I direct all my just and lawful debts and funeral and testamentary expenses to be paid out of my estate.
“ Item 2. I give and devise to my beloved husband, James Silk, my real property fronting on Detroit street in the village aforesaid, out of which I direct that no debt, legacy or other charge herein provided for shall be paid or taken and the rest and residue of my real property to have and to hold during the term of his natural life.
“Item 3. I give and bequeath to John S. Merry, of 67 Hackman street, Cleveland, Ohio, son of my deceased sister Eliza, two thousand dollars to be paid out of the residue of my estate.
“Item 4. I give, bequeath and devise the rest and residue of my estate, to the heirs of my deceased husband, William Sheppard, the children of such of his said heirs as may die prior to my decease to take their parents’ share.
“ Item 5. If under any circumstances the property conveyed to my husband, James Silk, aforesaid, by his mother, Maria Silk, by deed dated April 1, 1879, and recorded Vol. 300, page 268 of the record of deeds of said Cuyahoga county, should become my property by descent, then and in that case I give and devise the same to the heirs of said Maria Silk.
“ In witness whereof I hereunto set my hand and seal this first day of July, 1893, A. D. 1892.
“Sarah Silk, [seal.]
Subscribed by testatrix in our presence who acknowledged to us the foregoing instrument to be her last will and testament and by us subscribed as witnesses in her presence at her requést and in the presence of each other the day and date last above written.
“ 10 Johnson street, West Cleveland.
“ Mary A. Willows,
“Julia Wiles,
“ 22 Courtland street, Cleveland, Ohio.
“ Whereas, I, Sarah Silk, have made my, foregoing will dated the first day of July, 1893, A. D. 1892 I make this my codicil to the same.
“ Item first. I give and bequeath to my beloved husband so much of my personal property as he may desire to us absolutely in addition to the provision made for him in item second of my said will.
“ Item second. I reduce the amount of the legacy given in item third of my said will to John S. Merry from two thousand to one thousand dollars.
“ Item third. I give and devise to the West Madison Avenue Church of Christ in the city of Cleveland, Cuyahoga county, Ohio, sublot No. 13 in my subdivision on Sheppard (Shepherd) street now in said city.
“ In witness whereof I hereunto subscribe my name this twenty-seventh day of April, A. D. 1898.
“ Sarah Silk.
Subscribed by testatrix in our presence, who acknowledged to us the foregoing instrument to be her codicil to her last will and testament, and by us subscribed as witnesses in her presence at her request, and in the presence of each other, the day and date last above written.
“ Hugh Thow,
“ Edward Merry,
“ Cleveland Ohio.”

The facts are, that the estate left by the testatrix, consisted of both real and personal property ; that there remains of the personal property, after the payment of all debts and expenses of administration, something more than two thousand dollars in money; that the real estate consists of the property spoken of in the second item of the will as fronting on Detroit street, in the village of West Cleveland, and several vacant lots in the same village. This village has now been annexed to the city of Cleveland. The Detroit street property consists of a modest dwelling-house and a lot, the net income of which in its present condition is practically nothing; that is, the taxes, assessments, repairs and insurance would very nearly, if not quite, equal all the income which could be obtained from it in its present condition, and this is substantially true as to the balance of the real estate.

At the time of the execution of the original will, whether in 1892 or 1893, the health of James Silk, the husband of the testatrix, was good; he was then about sixty-two or sixty-three years of age, and was able to earn a comfortable support for himself. Before the execution of the codicil, Mr. Silk had met with an accident which has ever since rendered him unable to do any laborious work and practically unable to earn anything toward his support. Aside from the property bequeathed to him by the testatrix, he has very little, if any, means.

All the property of which the testatrix died seized, came to her under the will of a former husband, William Shepherd.

The items which the court is especially asked to construe, are first, the second item of the original will, which reads :

“ Item 2. I give and devise to nay beloved husband James Silk my real property fronting on Detroit street in the village aforesaid out of which I direct that no debt legacy or other charge herein provided for shall be paid or taken and the rest and residue of my real property to have and to hold during the term of his natural life.”

• The copy of the will attached to the petition is without any mark of punctuation after the period following the figure 2 until the end of the item, where there is a period. It is said that the original will is in the same condition, and it is urged on the part of the plaintiff that by this item the surviving husband takes a fee simple title to the Detroit street property and a life estate in the balance; while, on the part of the defendants, it is urged that the qualifying words “ to have and to hold during the term of his natural life,” apply as well to the Detroit street property as to the balance of the real estate.

Section 5970, Rev. Stat., reads:

“ Every devise of lands, tenements, or hereditaments, in any will hereafter made, shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.”

We are of opinion and so hold, that it does not clearly appear by this item of the will that the testatrix intended to convey to the devisee less than the fee-simple.

The words immediately following the devise of the Detroit street property, to-wit, “out of which I direct that no debt legacy or other charge herein provided for shall be paid or taken,” indicate clearly a distinction to be made between the devise of the Detroit street property and the balance of the real estate. Except for such, there seems to be no reason why the Detroit street property should have been specifically mentioned at all, because if he was to take a life estate and a life estate only, in the Detroit street property, as well as in the balance of the real estate, then a devise of “ all my real estate to my beloved husband James Silk to have and to hold during the term of his natural life,” would have expressed exactly the meaning of the testatrix.

It is said, however, that these words, above quoted, following the devise of the Detroit street 'property, indicate exactly the distinction that was to be made between the two ; but without these words the life estate could not have been subjected to the payment of any of the debts ■or legacies until the personal property had all been exhausted and the remainder in the real estate after the determination of the life estate had also been exhausted.

It will be observed that the language is stronger than simply that no debts or legacies are to be paid, because after the word “paid ” follow the words “ or taken ? ” It will further be observed that the two clauses of Item 8, to-wit: the clause by which the Detroit street property is devised, and the clause by which the balance of the real estate is devised, are connected by the word “ and ” alone.

In Noble v. Ayers, 61 Ohio St. 491 [56 N. E. Rep. 199], it is held that where certain described real estate is devised to one, followed by the words “ and also,” another described parcel of real estate to the same devisee and that followed by the words “for and during her natural lifetime,” created an estate in the devisee for life only in each parcel so devised. An examination of the opinion, however, shows that stress is laid upon the use of the words “ and also,” saying that these words are equivalent to “ in like manner.” ’

To the same effect is Morgan v. Morgan, 41 N. J. Eq. 235, and numerous other authorities which are found in 2 Am. & Eng. Enc. Raw 2 ed.), 177.

We are cited to one authority, and one only, — nor have we found any other after a somewhat diligent search, — where in a will the word “and” is construed as being equivalent to the words “ and also.” This is Spirt v. Bence, 4 Croke, 368. The case is an old one, adjudged in the reign of Charles I, and, so far as we have been able to ascertain, has never been followed on this point.

Our construction is strengthened by the fact that it is to be presumed that this testatrix intended to give to her husband something which should be of substantial value to him, which the devise of the Detroit street property for life only would not have been, or, if it would have been of any value, it would have been very little. The nature of the property is such that the natural thing to do with it is something other than one would do who has but a life estate in it.

The other items which need to be considered are the third item of the original will, and the first and second items of the codicil.

By the first item of the original will, a bequest is made to John S. Merry of two thousand dollars.

The first item of the codicil reads : “I give and bequeath to my beloved husband so much of .my personal property as he may desire to use absolutely in addition to the provision made for him in item 2nd of my said will.”

The second item of the codicil reads : “ I reduce the amount of the legacy given in item 3rd of my said will to John S. Merry from two thousand to one thousand dollars.”

This second item of the codicil has the effect of making the bequest to John S. Merry the same as though the third item of the original will gave to him one thousand dollars, and the will is to be taken as a whole as though the third item so read. This being true, the rights of John S. Merry are to be treated as though the sum to which he is entitled were fixed in the third item of the original will at one thousand dollars. It follows that this sum of one thousand dollars is to be paid as any other bequest would be paid, which is, out of the personal property.

All general legacies are to be satisfied out of personal property before a resort can be had to real estate, unless otherwise directed by the will.

It will not be contended that the surviving husband is entitled either to the entire personal property or to the use of the entire personal property, in preference to thé payment of the debts, so that resort should be had to the real estate for the payment of such debts; and the rule as to legacies is the same as the rule as to the payment of debts and expenses; that is, that unless some other property is designated as that out of which debts and legacies are to be paid, they must be paid from the personal property. See Raff’s Guide (6 ed.), page 153.

Suppose this administrator were to file a petition either in the probate court or the court of common pleas for the sale of real estate to pay the legacy to Merry, and it should appear from such petition that there was abundance of personal property with which to pay such legacy, it could hardly be contended that the court would be authorized to order a sale of the real estate.

It will be the order of the court, therefore, that this legacy be paid by the administrator out of the money remaining in his hands.

We think it clear as to the first item of the codicil, that it was the intention of the testatrix that her surviving husband should have the use of all her personal property after the payment of the debts, costs and expenses and the legacy to John S. Merry, during the period of his natural life, and that he should have the right, not only to the income of this personal property, but to consume of the principal so much as should be necessary for his reasonable and comfortable support, considering his circumstances and condition in life, and the order will be made accordingly.


author: HAYNES, J. PARKER, J.,

text:
    ACCIDENT INSURANCE.
    [Lucas (6th) Circuit Court,
    October 26, 1901.]
    Haynes, Parker and Hull, JJ.
    Charles A. Herbert v. Standard Life and Accident Ins. Co.
    1. Accident — Failure to Meet Premiums.
    An accident policy, issued to a railway engineer March. 28,1900, upon a stipulated premium per year, to be paid in four equal installments, for which he executes an assignment of part of his wages for April, May, June and July, conditional that the payments are premiums for consecutive periods of two, three and five months, and each shall apply only to its corresponding insurance period, is in effect a policy for a year if all the payments are made. The first installment pays to May 28, the second to July 28, the third to October 28, and the four for the balance of the year. Therefore, the first payment only having been made, no recovery can be had by the insured for an injury happening May 29, where it appears that he quit his work May 17 and collected his salary in full for that month, notwithstanding the May installment, if left with the railway company, would not have been paid until June 16, the company paying on the 15th for the preceding month.
    2. Agent’s Knowledge op Other Insurance.
    Where an agent soliciting accident insurance, and drawing the application for a policy, has full knowledge and in his own writing states that the applicant has other insurance, and issues the policy to the applicant, the fact of other insurance will not be permitted to defeat a claim thereon.
    Marshall & Fraser, for plaintiff in error.
    Smith & Baker, for defendant in ‘error.
   HAYNES, J.

This suit was brought upon a policy of insurance issued by the defendant company to Charles A. Herbert, and the case was tried and submitted to a jury in the court of common pleas, and a verdict was rendered for the defendant. Thereupon the plaintiff prosecutes this proceeding in error.

The policy is a peculiar one, and was issued on the installment plan. The leading facts ®f the case are that Herbert was an engineer on a railroad in the state of Minnesota, and on March 28,1900, he met an agent of that company whom he had met before, at a hotel, and the agent renewed the subject of accident insurance and the issuing of a policy of accident insurance to him, and it was finally agreed that Herbert would take one. Thereupon the plaintif wrote out the application, which was signed by the assured, and the agent then filled out the policy of insurance and delivered it to the assured on that same day. That policy was to commence on March 28, 1900, at noon. An assignment was made-of the wages of the assured upon the railroad company, for four months, being $14.40 a month, which would pay the amount of the premiums, $57.60, under the terms of the policy, to which I will refer later.- • ■

The plaintiff continued in the employ of the company during the balance of March, the month of April, and until May 17, at which time he drew the money that was due him for the month of May, the money that was due the’insurance company for the month of April, having been paid to it by the railway company. On May 17, he drew the whole of his money, left the employ of the company, came to Toledo, Ohio, where he'remained for some time, and on May 29 he was injured by a fall, breaking his leg. He then brought suit against the insurance company for the amount of certain monthly payments that he claims are due him under the terms of the policy.

The defense is, that under the peculiar terms of the policy and the action of the plaintiff, the policy had terminated on May 28, and was not in force at the time the plaintiff was injured on May 29.

That brings us to the terms of the policy. It is said to be a policy upon the installment plan; that is to say, it has been conceived and gotten up for the purpose of insuring persons who have no present means of paying the premiums, and who make arrangements to have the payment made irom their wages. The policy starts out:

“ In consideration of the warranties in the application for this policy, and of - an order which is to be considered an assignment of moneys therein specified on the paymaster of the C. St. P. M. & O. Ry., hereby insures Charles A. Herbert, of St. James, locomotive engineer by occupation, for the period or periods hereinafter specified, beginning at 12 o’clock noon, standard time, of the day this policy is dated, against bodily injuries sustained, through external, violent, and accidental means, and will pay to him, if surviving, or to Mrs. Anna Herbert, his wife, or, in event of her prior death, to the executors, administrators or assigns of the insured, the indemnity provided in the schedule hereinafter contained, styled, death and indemnity.”

In the application for the policy of insurance, after stating many other things, it is stated:

“Accident premium, $57.60. The premium to be paid by four equal monthly installments as follows: $14.40 from my wages for the month of April, 1900; $14.40 from my wages for the month of May, 1900; $14.40 from my wages for the month of June, 1900; $14.40 from my wages for the month of July, 1900; which shall apply to the respective insurance periods, and that the policy shall be considered binding only for such insurance period as is covered by an installment of premium actually paid, except as to the time fixed for payment of the first installment.”

Here is the peculiarity of the installment plan: “ the payments made in the order of assignment are premiums for separate consecutive periods of two, three, and five months; and each is to apply only to its corresponding insurance period. All claims for injuries received during any period for which the respective premium shall not have been actually paid shall be forfeited to the company. Except, that in case of a just claim before the first premium is due, if the sum due the insured be less than the sum of all the payments called for by the order or assignment, the amount of the claim shall be credited thereon; if greater, the order or assignment shall be receipted in full and the balance paid to the insured. In making settlement for any claim for injuries received during any insurance period for which the premium has been paid, the amount of the premium for later unpaid periods may be deducted from the amount found due.”

It is further provided that “ in case the insured shall fail to leave in the hands of the paymaster any installment of premium as it shall fall due, as agreed in said order or assignment, this policy shall be void.”

Then there is attached to it the written assignment:

“ For value received, I hereby assign to the Standard Fife and Accident Insurance Company, of Detroit, Michigan, or its authorized agent, four premiums, for separate insurance contracts, as follows :
“ First premium, $14.40, to be paid and deducted from my wages, for the month of April, 1900.
“Second premium, $14.40, to be paid and deducted from my wages, for the month of May, 1900.
“ Third premium, 14.40, to be paid and deducted from my wages, for the month of June, 1900:
“ Fourth premium, $14.40, to be paid and deducted from my wages, for the month of July, 1900.
“Express Agreement. — The payments named in this assignment are premiums for separate and independent contracts for consecutive periods of two, two, three and five months; and each shall apply only to its corresponding insurance period. All claims • for injuries received during any period, for which its respective premium shall not have been actually paid, shall be forfeited to the company. Except that, in case of a just claim, before the first premium shall be due, if the sum due the insured be less than the sum of all the payments called for, by this assignment, it shall be credited thereon; if greater, the assignment shall be receipted in full and the balance paid to the insured.”

The effect of that policy was to insure him for a year, if the payments were made. The first covered two months, and the next the two months following, and the next three months, and the next five. Under the terms of payment, the policy being issued on March 28, the amount taken out of the earnings of the month of April— $14.40 — paid two months, to-wit: to May 28 ; then the payments taken out of the May earnings would pay two months more, to-wit: to July 28, and the June payment would pay to October 28, and the July payment would pay for the balance of the year, five months.. That is the written contract. As a matter of fact, the railway company, in the course of its business only made their payments monthly, on the fifteenth day of the following month ; that is to say, the earnings for the month of April were paid to the plaintiff on May 15, and so on for each of the succeeding consecutive months.

The first payment of $14.40 in this case was paid on May 15, and on .the seventeenth day he left the employ of the company, and took the whole of his May wages, leaving nothing whatever in the hands of the company, and on May 29 he was injured, and the claim is made now on the part of the assured that his policy was still in force at the time he was injured, and that he has a right to recover. The company, on the contrary, claims that inasmuch as he had drawn his money out of the hands of the railway company, and had left nothing there for the payment of the amount due, under the terms of the policy, the policy had ceased to exist and be in force on May 28.

We have examined the case very fully, but we have not been able to agree entirely upon the rights' of the parties, and the opinion that is now delivered will be the opinion of a majority of the court.

It will be observed that nothing whatever is said in the policy or application in regard to any extension of time when the payment of these sums assigned will or may be made. It is only shown by extraneous evidence that as a matter of custom the railroad company did not make its payments until the fifteenth day of the following month for any month’s wages, and the testimony shows that this was under-, stood by the insurer, because this was not the only policy it held upon employes of this railroad company similar to the one in controversy. It seems to have been the custom of the insurance company to send a list, prior to the middle of the following month, of the policies that had been issued and the amounts that were due, to the railway company, and the company had been accustomed to leave in the hands of the paymaster money to a sufficient amount to pay the insurance premiums, and, as we understand, pay it to the insurance company. It amounted in one month that is shown here to something like $460 for - that month.

The question here is whether this policy of insurance was in force on May 29. The majority of the court are of the opinion that it was not. In the first place, the assignment of the payments was an absolute assignment: “I hereby assign to the Standard Fife and Accident Insurance Co., of Detroit, Mich., or its authorized agent, four premiums for separate insurance contracts as follows.” It appears incidentally in the evidence that the assignment was recognized by the railway company. It consented to the separating of plaintiff’s wages, and paid a part to him and a part to the insurance company; so that at least so far as he was able, he had vested in the insurance company those respective sums. It was provided in the tenth clause—

“ In case the insured shall fail to leave in the hands of the paymaster any installment of premium as it shall fall due, as agreed in said order or assignment, this policy shall be void.”

Herbert’s wages for the month of May would not, in the course of the business, be paid to him until the middle of June, but it was the right of the company to expect, under this assignment, that so much of that amount that was earned during the month of May would be left in the hands of the railway company to meet the amount of this premium of $14.40. He had assigned it to the insurance company absolutely, on the face of the assignment, and it provided that he should leave this amount with the railway company, or his policy would be void. In this particular month he had earned more than sufficient to pay the $14.4,0, for at the time he left he drew out about $60.00 in,money, that being all that was due him, and left no sum whatever in the hands of the company with which to meet this assignment that was outstanding. His contention is that he had a credit, by the course of their business, to the middle of the next month to make the payment for that period, and if at the time the money became due, on the fifteenth of the month, he should place that amount with the railroad company, or perhaps tender it to the insurance company in some other form, that then his policy would be good, and would be continued. But it is'the opinion of the majority of the court that he had no credit to that time, save and except as he left for the insurance company the amount of money that was earned during the month, to cover the premium for the two months after March 28. Had he left that amount of his earnings in the hands of the railway company, for that month, the majority of the court have no doubt that then the insurance would have continued ; that is to say, by the course of dealing of the insurance company, when the money was left with the railroad company, the insurance company was willing to wait until the middle of the month to receive it. But they had expressly agreed that unless the money was left there, the policy would be void. The plaintiff chose not to leave it, thus violating his assignment and his agreement, and his policy became void. The money being earned, it was a payment in advance. And that was anticipated by the insurance company, because there is a special agreement in regard to this month, that is to say, the month of April, the wages for which were unearned at the time the policy was issued, and he was permitted to have his insurance, although the payment was not to be made until.later on.

The question is made as to whether a certain statement was made by the assured in regard to having other insurance, which would avoid his policy, there being a provision in the application that he had no other insurance. The testimony of the plaintiff that he told the agent at the time of filling the application (which was done by the agent himself, in his own handwriting) that he had another policy of $1,000 in a casualty insurance company in Detroit, and the agent went on and drew the application, had him sign it, wrote the policy and delivered it to him, with full knowledge of that fact. We think under the policy of the law and the decisions, that that should not avoid the policy.

Other questions were made in the case, but inasmuch as the majority of the court are of the opinion that the policy of insurance was not in force at the time the accident occurred, it is unnecessary to discuss those.

The judgment of the court of common pleas will be affirmed.

PARKER, J.,

dissenting.

I find myself unable to concur in the conclusions of my associates in this case, and I will undertake to state the grounds of my dissent.

This insurance, like all other insurance of which I have ever had any knowledge, appears to me to have been written in consideration of certain premiums to be paid at certain times, and not in consideration of money to be earned in a certain way or at certain times, or to be kept on deposit in a certain place. It seems to me, therefore, that the crucial question, the whole question here is, did the insured fail to pay his premiums or any installment of the premiums at the time agreed upon, whereby the policy lapsed or lost its force ?

It will be observed, as already stated, that this policy, and this application and the so-called assignment, provide that the payments are premiums for separate and independent consecutive periods of two, two, three and five months, and further, that each installment shall apply only to its corresponding insurance period. The sum of these periods is one year, and the sum of these installments of premium is $57.60.

The first period of two months began on March 28, and expired May 28. The premium for this period, $14.40, was paid on May 14 from the April wages of the insured. It appears that that was the time agreed upon as the time for the payment of this premium, though another time is expressly stated in the contract. I arrive at this from the circumstances surrounding the transaction. There is no controversy about that; the insured was to receive his April wages from the company on May 14, and he could not receive them before, and the insurance company could not receive those wages before that time upon this so-called assignment. So that the insurance company had agreed to give to the insured a credit of seventeen days for the payment of this first installment of premium. I shall undertake to point out that there was no special arrangement about this particular payment, but that all these payments stand upon precisely the same footing.

The second period began on May 28 and expired on July 28. The premium for that period was $14.40, to be paid from his May wages, which would become due and payable on June 14; and therefore he was to have a credit of seventeen days for that premium. In other words, his policy was to be in force for a period of seventeen days of that second period without previous payment of anything on account thereof.

The third period began July 28, and expired October 28. The premium for that period was $14.40, to be paid from his June wages, that is, on July 14th. So that on account of this period the company extended him no credit, but required him to pay this installment of premium fourteen days in advance of the beginning thereof. The fourth period began on October 28, 1900, and expired on March 28, 1901. The premium for that period was $14.40, to be paid from his July wages, that is, upon August 14, when his July wages would become due and payable, and would be available to him or to the company. So that the company did not agree to extend to him.any credit or time for the payment of the premium on account of that period, but on the other hand, they, required him to pay for that period seventy-two days in advance of the beginning thereof.

In order to keep the policy alive as to the third and fourth periods, the payments on account thereof must be made in the one case fourteen days before it began, and in the other case seventy-two days before it began. And that seems to me to be important in view of certain provisions in the policy, the assignment and the application upon the construction whereof we differ. The so-called assignment after providing that the assured assigns to the Standard Fife and Accident Insurance Company or its authorized agent, four premiums for separate insurance contracts, and stating the amounts and the wages from which these installments are to be deducted, this occurs:

“ Express Agreement. — The payments made in this assignment are premiums for separate and independent contracts for consecutive periods of two, two, three and five months; and each shall apply only to its corresponding insurance period.”

Then comes this sentence:

“All claims for injuries received during any period, for which its respective premium shall not have been actually paid, shall be forfeited to the company.”

That is followed by this:

“ Except that, in case of a just claim, before the first premium shall be due, if the sum due the insured be less than the-sum of all the payments called for by this assignment, it shall be credited thereon ; if greater, the assignment shall be receipted in full and the balance paid to the insured.”

I have divided this clause to make my meaning more clear. The construction that is put upon this entire clause beginning with the words “ express agreement,” by counsel for the insurance company and by my associates, is .this: that all claims for injuries received during any period except the first period, for which its respective premium shall not have been actually paid, shall be forfeited to the company ; but as to the first period, if there shall be a just claim before the premium therefor falls due, the sum due the assured shall be paid to him. I do not put that construction upon this paragraph. It seems to me that the exception set forth here has no application whatever to the sentence and provision reading as follows: “All claims for injuries received during any period, for which its respective premium shall not have been actually paid, shall be forfeited to the company,” but that the exception applies to the sentence immediately preceding that, and that this sentence which I have just read stands alone and independent of the others, and is general in its terms, applying to any injury and to any premium. I will read the clause, omitting that sentence, so that the application may be seen:

“ The payments named in this assignment are premiums for separate and independent contracts for consecutive periods of two, two, three and five months; and each shall apply only to its corresponding insurance period. Except that, in case of a just claim, before the first premium shall be due, if the sum due the insured be less than the sum of all the payments called for by this assignment, it shall be credited thereon ; if greater, the assignment shall be receipted in full and the balance paid to the insured.”

In other words, if a loss occurs before May 14, the premium for the whole year, that is, $57.60, may be set off by the company against the amount of such loss; if a loss shall occur after May 14, no more shall be set off by the company than the premium for the period within which the loss occurred. And this stipulation for the set-off for periods subsequent to the first period could apply to the second period only, and shows that it was contemplated that a loss might occur before the premium for the second period had been paid. I say it could apply to the second period only, since with respect to the third and fourth periods it is expressly provided that, in the one case the premium shall be paid fourteen days before the period begins, and in the other case seventy-two days before the period begins: This exception, therefore, as to the first period, in favor of the company, is to the effect that in consideration of their giving this credit of a month and seventeen days, at the expiration of which time the first premium is to be paid, it is provided that in the event of an injury to the insured, or anything happening upon which he would have a claim against the company, as against such claim occurring during that period, the company shall have a right to set off the whole premium of $57.60; or, in other words, the premium for the whole year. So that the provision that “All claims for injuries received during any period, for which its respective premium shall not have been actually paid, shall be forfeited to the company,” stands there, in my opinion, entirely unaffected by the provisions of this exception, which do not seem to have any pertinency, or any possible application, to that provision. This so-called exception is a provision simply as to the amount of set-off that the company shall have as against[claims for losses occurring during the different periods.

It has no influence upon the question as to when the premium is to fall due and be payable. I find in these different instruments which make up the contract between the insured and the company, no provision that a failure to earn the premium at a certain time, or in a certain way, or to keep it on deposit in a certain place, shall nullify the policy or shall work its forfeiture, or shall cause it to lapse; or that the doing of any of these things is required as a condition precedent to the taking effect of the policy for any period. There is no especial or peculiar value or virtue in the money earned by the insured as wages in working for the railroad company. Any other money is precisely as good to the insurance company. It seems to me that they so regarded it; that all they required was, that the premiums should be paid when they fell due.

As I have said, it seems to me that a fair construction of the contract, in the light of all the circumstances, is, that the premiums were to fall due at the respective periods or times when the wages for the months of April, May, June and July were to fall due, and that therefore this provision in the assignment that all claims for injuries received during any period for which these respective premiums shall not be actually paid shall be forfeited to the company, must be considered in the light of all the surroundings and the evident, intent of the parties; and read in the light of these things, it seems to me that it must be read as follows: That all claims for injuries received during any period for which the premium shall not be actually paid after it becomes due and payable, shall be forfeited to the company, otherwise, this agreement would be a delusion and a snare to the insured. He promised to pay for and supposed he was to be insured during the month and seventeen days intervening between March 28 and May 14, when the first payment is to be made to the company. But he is to pay nothing actually, before May 14. And it seems to me that it would not lie in the mouth of the company to say that the construction to be put upon this provision is that if he suffered a loss during that period, — an injury on account of which he supposed he would have a claim against the company, — he could not recover, because the premium for the period had not been actually paid.

The same should be true as to the second period after he had paid the premium for the first period upon May 14. That payment wouid carry the insurance up to May 28. The next installment of premium would be payable upon June 14. The time intervening between May 28 and June 14 would be seventeen days. The insured was injured during those seventeen days, to-wit: upon May 29. And thereupon he is confronted with the proposition that since the premium had not been actually paid for the period beginning upon May 28, and expiring upon June 14, he can recover nothing. In my judgment, the policy was in full force. Credit for those seventeen days had been extended to him ; and if upon June 14, he met the requirements — that is to say, paid any premium then due to the company — he would have a right to recover upon his policy.

But stress is laid upon the tenth clause in the certificate which reads as follows:

“ In case the insured shall fail to leave in the hands of the paymaster any installment of premium as it shall fall due, as agreed in said order or assignment, this policy shall be void.”

It seems to me that in the light of all the surrounding circumstances that is to be read, in connection with the clause in the assignment to which I have referred requiring actual payment, is as follows : “In case the insured shall fail to leave in the hands of the paymaster any installment as it shall fall due, at the time it shall become due and payable to the company, so that the company may avail itself of it; or if he shall fail to pay that amount to the company at the time it shall become due and payable, then this policy shall be void.” That he was not required to pay his premiums from this particular source, and was not required to earn the money in this particular way, or leave it on deposit in this manner, in order to keep tbe policy alive, is, I believe, entirely clear, and is conceded by counsel for the company. Apparently it was so understood, for a notice upon the back of the envelope which was delivered to him, in which his certificate was contained, and which formed a part of the agreement between the parties, reads as follows:

Notice to Policy Holders: — “ If your policy is to be paid in installments by orders on a paymaster, it is your duty to make sure that each installment is deducted by the paymaster when due, and to notify him if it is not, that he may make the deductions at once. Should you leave the service of the company in which you were employed when insured, you should, for your own protection, send the unpaid installments to the office as soon as they become due."

That is all the insured was required to do to keep his policy alive; he was not required absolutely to earn the money at the hands of the railroad company, nor was he required absolutely to leave it on deposit; he was given the option to do that, or failing to do that, to pay the premium to the insurance company when it fell due.

As I say, it seems to me that the sole question here is, when did this premium for this particular period beginning upon May 28, fall due ? Did the insured make default in the payment of that premium ? There is no provision, as I construe this contract, that if he shall pay this premium from his wages in the way arranged by this assignment and not otherwise, he shall have until June 14, in which to pay it; that in that event it shall be due and payable upon June 14; but if he does not pay it in this way from this fund, then it shall fall due earlier, that it shall fall due upon May 28. As I understand it, that is the ground upon which a majority of the court arrive at their conclusion that the insured was in default; that is to say, if he had left this particular money on deposit, so that the insurance company might draw it on the 14th day of June, then he would have until June 14, in which to pay it, but failing to do that, he must pay it at the beginning of that period, i. <?., on May 28. I find in these writings which make up the contract no provision that any part of the premium shall in any instance be paid at the beginning of the period, or that it shall then fall due. Let us apply that construction and that course of reasoning to the third and fourth installments. What then would be the effect ? The third installment is payable from the June wages, and on July 14, when the June wages would be payable. It seems to me, as the result of that reasoning, if he failed to leave his June wages on deposit so that they might be drawn by the company on July 14, his obligation would be to pay the $14.40 on account of the third period at the beginning of the third period, which would be on July 28, fourteen days later. In other words, by withdrawing the money from the hands of the railroad company, he has the time extended for fourteen days in which to pay the premium for the third period and keep the policy alive. Apply it to the fourth period: he withdraws his July wages ; the railroad company is without funds to pay for that period upon August 14, and the effect is that it gives him until the beginning of that period, to-wit: October 28, in which to pay the premium for that period and keep the policy alive, postponing the payment to the insurance company forty-four days. I do not think that the insured has any such right. I think that the agreement is plain, that he is to pay for each of the periods at the time fixed for the payment of his wages for the months so to be devoted to the payments for the periods respectively; in other words, the assignment, besides being an assignment, is an agreement that the premiums for the respective periods shall be due and payable at the times that his wages for the respective months become due and payable, and that whether the insured pays the premiums from these wages or from some other source is all the same to the insurance company.

Counsel insist that there is some security to the insurance company through this assignment of wages, but it is quite apparent from the whole record that there is not. The assignment is not recognized by the railroad company unless acquiesced in by the employee at the period when the wages become due and payable. The wages are then on hand, and the insured may or may not permit them to be drawn by the insurance company. They are entirely under the control of the insured during the whole period, as much so as if he had the money in his own pocket. It is simply a convenient arrangement whereby the insured may obtain a certain credit for part of the time, and the insurance com* pany may have its pay far in advance of the insurance period for part of the time, and the insured is not to be troubled with hunting up the insurance company to pay his premium, and the insurance company is not to be troubled hunting up the insured to collect. It is a convenient arrangement for the transfer of this money that shall be due and on hand at the time it shall become due from the railroad to the insured and from him to the insurance company. But if he has other money which he pays to the insurance company it is certainly as valuable to them, and ought to be as effective for the preservation of the life of his policy. They might as well, so far as the assignment went, as a matter of securtiy, have provided that the money which he derived from some certain occupation for a certain period he should keep in his left hand trousers pocket until it became due and payable to the companjq and if he kept it in his left hand trousers pocket during that period, his policy should be kept alive, but if he failed to do it, the policy would lapse. The important thing is, that when the money becomes due and payable to the company, it shall be paid to the company.

Long before June 14, the insured had received his injury, and his claim against the company, it is conceded, if the policy were alive, amounted to more than the premium then due. Therefore he was not then called upon to pay anything to 1he company. The company did not undertake to defeat his claim upon the ground that the premium had become due on May 28, and that he had failed to pay it; the company do not assert the claim that the premium became due at an earlier period in consequence of his having failed to leave his wages with the railroad company, but they assert here the claim that because he did not leave this money in the hands of the railroad company until June 14, which was the time to draw it, his policy had lapsed, notwithstanding the fact that they had no right to draw it, and had no claim upon it, or any part of it for any of this period between May 28, and June 14, even if he had left it there, because he had sufféred this injury and had a claim against the insurance company which amounted to more than the premium for this period. I do not believe that is a just, or fair or reasonable conclusion, and therefore I dissent.