text:
    MEASURE OF DAMAGES FOR. BREACH OF CONTRACT TO TAKE FIRE INSURANCE.
    Circuit Court of Cuyahoga County.
    C. H. Prescott, Jr., et al v. Harry Koblitz

    Decided, February 16, 1903.

      Evidence — Inspection Bureau Rate of Insurance Not Admissible to Prove Average Rate in Force on Certain Class of Property — Damages for Breach of Executory Contract is Present Talnue of the Contract.

    1. In an action by an insurance agent for damages resulting from the breach of a contract, in which it had been agreed that the agent should furnish the other party to the contract insurance at a rate not exceeding the average rate paid by other lumber firms of the same city for a like hazardous risk, evidence by the officers of an inspection bureau as to the rate which they placed upon the property upon which the plaintiff had tendered insurance, is not competent to prove that the tendered insurance was at the rate specified in the contract, even though the rates fixed by the bureau were sold to, and used by, a large percentage of the insurance agencies of the community.
    2. Where a contract between an insurance agent and a property owner provided that the property owner should take all his insurance from the agent and withhold 20 per cent, of the premiums as they became due and apply them as payment upon a certain piece of property which was to be conveyed to the agent at an agreed price, a breach having occurred , at the inception of the contract through the refusal of the property owner to take any insurance, the measure of damages is not the value of the property to be conveyed, but the value of the contract to the agent at the date of the breach, in estimating which the jury should consider the probability of the defendants going out of business, and what would have been necessary on the part of plaintiff had he performed his contract.

      Hessenmueller & Bemis, for plaintiffs in error.

      Ford, Snyder, Henry c§ McCfraw, contra.
    MjARvnsr, J.; Winch, J., and Hale, J., concur.

      Error to the court of common pleas.

       Affirmed without opinion, Koblitz v. Prescott et al, 71 Ohio State, 546.

   The defendant in error brought a suit against the plaintiff in error, to-wit, C. IT. Prescott, G. A. Prescott and C. IT. Prescott^ Jr., partners doing business under the firm name of the Saginaw Bay Company, and recovered a judgment, to reverse which the present proceeding is brought. The suit grew out of the following state of facts:

On the 19th day of September, 1899, a contract in writing was entered between the Saginaw Bay Company as party of the first part and ITarry Koblitz as party of the second part, which contract reads as follows:

This agreement made this 19th day of September, 1899, by and between the Saginaw BayoCo., party of the first part, and Harry Koblitz, party of the second part. Witnesseth:
“That whereas the party of the first part is now engaged in the lumber business in the city of Cleveland, and desirous of placing the fire insurance upon their lumber yards, etc., with the said party of the second part: therefore the conditions and considerations under which the said insurance is to be placed with the party of the second part are as folows:
“First. That the insurance shall be placed with first class and reliable insurance companies.
“Second. That the rate of insurance shall not exceed the average rate paid by other lumber firms in the city of Cleveland for a like hazardous risk.
“Third. That the party of the first part agrees to place all of their insurance with the party of the second part until the terms of this contract are fulfilled; the party of the first part agrees to sell to the party of the second part a certain piece of land situated in Bay City Mich., at the corner of Fifth and Johnson streets the same having a frontage of about 133 feet on Fifth and a. depth of about 100 feet on Johnson street the deed and abstract for this property showing the same to be free from all encumberance to be furnished at the time payment has been made as here specified. ' The party of the second part agrees to allow 25 per cent, on all premiums as they fall due to remain with the party of the first, part as payment on the above described property. Also the party of the second part agrees to allow 20 per cent, on all premiums to remain with the party of the first part on all premiums due for insurance if placed for C. H. Prescott & Sons, Tawas City, Mich-. It is also a part of this agreement that the party of the second part shall pay to the party of the first part interest at the rate of 6 per cent. on all deferred payments, said interest commencing November 1st, ’99. It is also understood that on and after November 1st, '99, the party of the second part shall collect all rents due on the above described property and shall pay the taxes as they mature, except the payment due in January, 1900, which shall be paid by the party of the first part. Also it is mutually understood that the party of the first part will accept payment for the property at any time the party of the second part may have an opportunity to dispose of same and the terms of this agreement will still continue until contract is fulfilled. The purchase price agreed upon for the above described property is $3,-000 which shall be paid in the manner above described until $1,-500 has been paid on the principal, leaving a balance of $1,500 still to be paid. After that time this contract shall be in force providing the said second party is able to place the insurance at equally as good rates for the party of the first part as other reliable agencies can place same, and in case second party is not willing so to do, the balance due on said property amounting to $1,500 shall be paid for in cash and this agreement shall be closed, although it is expected and desired that this arrangement may be so mutually satisfactory that the business relations may continue until full payment is made. It is also agreed that the . party of the second part shall do his utmost to secure a blanket '.rate on all of the property at the separate yards of the Saginaw Bay Co., and shall also aim to secure the best rates possible at all times, and that there may be no misunderstanding in regard to the rates to be paid, it is expressly agreed by the party of the second part that at no time shall the party of the first part pay a higher average rate than is paid by other lumber firms in the city of Cleveland for a like hazardous risk.
(Seal.) "Saginaw Bat Co.,
"Per C. IT. Prescott, Jr.
(Seal.) “Harry Koblitz.
"Witness:
"Katherine C. Keeley.”.

The petition avers that Koblitz has performed all the conditions of said contract on his part to be performed, and, as the policies of the defendants have from time to time expired, plaintiff has offered to place the insurance in accordance with the terms of said contract, but that defendants have refused and still refuse to place insurance with the plaintiff or place plaintiff in possession of the real estate aforesaid, and have wholly and utterly failed to carry out said contract or any part thereof, whereby he has been damaged in the sum of $3,000, and he prays for judgment for said sum, with interest from the 19th day of September, 1899.

For answer to the petition the defendants admit that they are a partnership doing business under the name of the Saginaw Bay Company, and that they entered into the contract with said Koblitz hereinbefore set out, and they deny every other allegation in the petition.

A bill of exceptions is filed in this court setting out all the evidence introduced in the court below, together with the charge of the court as given to the jury.

From this it appears that no insurance under this contract was ever placed upon the property of the Saginaw Bay Company, nor was the real estate described in the contract ever conveyed, dr the possession thereof delivered to the said Koblitz.

The claim on the part of the plaintiff below is that he was ready and able on his part to place such insurance, but that the defendant refused to accept it, whereas the claim on the part of the plaintiff in error is that Koblitz never offered to place any insurance for them at the rate named in the contract, and that the real reason why insurance from him was not accepted by them was that the rate charged by him was in excess of (to quote from the language of the contract) “the average rate paid by other lumber firms in the city of Cleveland for a like hazardous risk. ’ ’

The evidence shows that the first insurance which was needed by the plaintiff in error after the date of said contract was on the 27th day of September, 1899, being eight days after the date of the contract. On this date insurance to the amount of $43,000 on the lumber-yards of the plaintiff in error was to expire, and they notified Koblitz of that fact. He, together with his partner, Mr. Thomas, made an examination of the property to be insured, and it is claimed on the part of the plaintiff in error that Koblitz then fixed a rate which he said was the lowest rate at which he could place the insurance, and that such rate was, on the most hazardous risk, $1.60 per hundred, and on the least hazardous, $1.50.

An important question in the case, therefore, it will be seen, was “the average rate paid by other lumber firms in the city of Cleveland for a like hazardous risk.” As bearing upon this question, the plaintiff below placed upon the stand several witnesses. to show what rate had been fixed upon such risks by an organization called “The Ohio Inspection Bureau.” Among the witnesses placed upon the stand for this purpose was one Charles H. Patten, the superintendent of said ‘ ‘ Ohio Inspection Bureau.” This witness, in answer to the question, “What is the business of that company?” answered, “Well, it is an independent rating concern that operates similar to Dun’s or Bradstreet’s. We inspect all classes of insurable property in Cleveland and sell our rates to the agents.” From this and other evidence it appears that this Ohio Inspection Bureau employed experts to examine property, with a view to fixing rates at what they think property should be insured, and for a compensation they furnish these rates to insurance agents in the city of Cleveland. The evidence shows that this organization furnished their estimate of rates to a large per cent. — indeed to nearly all of the insurance agents in the city of Cleveland. These rates so fixed by the inspection bureau were given out on cards furnished to the several agents, and the witness, Patten, speaking of the rates fixed by this bureau in force at the time of the execution of the contract between the parties to this action, was asked by counsel for the plaintiff below this question: “Now, on the stock of lumber, shingles, posts, timber, piling sticks and foundations for lumber piles, its own or held in trust or in commission or sold, but not delivered, all while contained in its yard and sheds, bounded by Stone’s levee, Toronto, Ohio, and Chicago streets, Cleveland, Ohio. It is understood that this item covers like property while piled temporarily on said levee and streets. Other concurz-ent insurance permitted,” being the third item in this plaintiff’s Exhibit B, “what rate, if any, for the fall, particularly September, 1899, as fixed by you, was then in effect.” This was objected to, overruled, and the proper exception taken. The answer was, “The rate was $1.60.” Then, this question: “Now, on the other items of property owned by the Saginaw Bay Company in this city, what, if any, rate did you fix at that same time?” and over the objection and exception of the defendant below, the witness answered, “Well, there was a rate of $1.50 in effect prior to that.” Then, the question: “What was the rate in effect in September and October and November, 1899?” and over the objection and exception of the defendant below the witness answered, “$1.50.”

Other questions of similar import were put to these and to other witnesses, for the purpose of ascertaining what rate of insurance was placed by this inspection bureau upon the property of the Saginaw Bay Company and other similarly hazardous risks, which was in effect in the fall of 1899. The ruling of the court in admitting this class of testimony was erroneous, and the testimony was calculated to prejudice the rights of the plaintiff in error. The contract required that the defendant in error should furnish the insurance at a rate not exceeding the average rate paid by other lumber firms in the city of Cleveland for a like hazardous risk. Surely, this could not be determined by ascertaining what this bureau, or any expert acting for this bureau, should say would be a proper rate for such insurance.

It, of course, became necessary for the court to charge the jury as to what would be the measure of damages in the event that there should be a recovery for the plaintiff below, and on that subject the court said to the jury:

“The measure of damages, if you find for the plaintiff under the instructions of the court, is the value of the house and lot plus the rentals after the payment of taxes, after deducting from said rental that part of the purchase price which plaintiff’s commission did not cover, and interest on the unpaid portion 'of the purchase price of the house and lot. The time for whieb such rental, taxes and interest should be taken into account is the period which the parties contemplated for the performance of the contract. ’ ’

It should be said, before discussing this proposition, that the evidence shows that the commissions which the plaintiff below would receive from the insurance companies upon the premiums paid for the insurance to be furnished, was 20 per cent., so that the amount which was to be kept out of the premium toward payment upon the real estate named in the contract was in excess of the commissions which Koblitz would receive from the insurance companies for his services to the extent of 5 per cent, of such commissions. This would be true as to all insurance written upon property in the city of Cleveland, and the evidence showed nothing as to insurance at Tawas City, Michigan, the other place named in the contract. Attention is called to this because of the language of the charge quoted: “deducting from said rental that part of the purchase price which plaintiff’s commission did not cover.” This charge as to the measure of damages was clearly erroneous and to the prejudice of the plaintiffs in error. If this rule were followed plaintiff would recover all that he could have recovered if everything to be done by him had been done and if the plaintiffs in error had neglected and refused to put him in possession of the real estate at the time specified in the contract and refused to convey it to him after it had been fully paid for. So that Koblitz would have received, without doing anything on his part except to tender, as he claims he did, on the 27th day of September, 1899, insurance to cover the $43,000 which was then about to expire; all that he would have received had he performed all - the work which, under the terms of the contract, he was required to perform. It assumes that nothing remained for him to do; that he would not have been required to make any inspection of the risks from time to time as policies were to be issued; that he would not have been required to ascertain at what rate other like hazardous risks were being taken by other good companies; that he would not have been required to secure companies to take the risks from time to time as they should have been needed by the Saginaw Bay Company — all of which he certainly would have been required to do had the contract been carried out on the part of both. It further assumes-that he would always have been prepared to furnish insurance such as his contract required, at the rates required by his contract; that the business of the company would have continued for so long a time as that his commissions would have amounted to $3,000.

The jury were not permitted to estimate what the probabilities were as to contingencies which might arise to prevent Koblitz from performing his part, or to make it unnecessary for the Saginaw Bay Company to have insurance. Surely, all of these things would have a bearing upon the damages which were sought by Koblitz, if he sought any by reason of the failure of the plaintiffs in error to perform their part of the contract. If by default of the plaintiffs in error Koblitz was prevented from carrying out his contract and receiving the benefits of it, and if he was ready on his part to perform, then the damages which he should recover would be what that contract was worth to him. It may be somewhat difficult to fix upon a practicable rule to determine such damages, but it seems certain that the rule fixed by the court in its charge was not the true rule.

The case of Rightmore v. Emil Hirner et al, 188 Pa. St., 325, is, in many respects not unlike the case under consideration. Rightmore entered into a contract with Hirner and others to sell certain machines manufactured by Hirner and his associates at a given commission for a period of five years. At the end of the second year from the making of the contract Right-more was dismissed from his employment and brought suit to recover damages for a breach of the contract. The trial court said to the jury upon the measure of damages:

‘ ‘ This contract had practically three years to run, and if they deprived him of that benefit they ought to pay what that contract was worth, and that is the profit which he would have gotten out of it.”

This instruction was held to be erroneous, and the court say that what should have been given to.the jury as the measure of damages, is:

‘1 If the plaintiff is entitled to any damages for breach of contract, the measure of the damage is the value of the contract at the time of breach, and in considering the value the jury must bear in mind that the defendants were not obliged to furnish any specified number of machines, or even continue their manufacture; the plaintiff’s right under his contract were subject to the contingencies of business, depression of trade, which might tend to reduce the sales, and in estimating the damages consequent upon the loss of the contract, the jury must take into consideration what the plaintiff probably could earn in some other employment or occupation during the period during which the contract ran.”

Applying the principle announced in this case, which seems to be the true principle, the measure of damages to which Koblitz was entitled, if he was entitled to damages, was the value of the contract to him at the time of the breach, and, in considering the value, the jury should bear in mind that the defendants were not obliged to furnish an specified amount of insurance in any year, nor was it obliged to continue in business for any fixed length of time. The plaintiff’s rights under his contract were subject to the contingencies of business, the probability of his being able to furnish the insurance for the whole length of time which it would take to pay for the real estate under the terms of the contract, and what would be the value of Koblitz’s service and time in doing what he would have been required to do to carry out the contract for the whole time which it was to run.

To make out the case of the plaintiff below it was necessary for him to show that he was prepared to perform on his part and that the defendant below prevented such performance.

It is certain that after the 27th of September, 1899, neither party did anything toward the carrying out of the contract. Just prior to that time interviews were held between them, and a letter was written by Koblitz to the company and an answer to that letter written to Koblitz. The parties are not at one as to what transpired at the interviews. Koblitz says that he fixed no rates at which the insurance which was needed on the 27th of September would be furnished, though he says that it is true that his partner, in his presence, marked the rate of $1.60 opposite to one of the risks as it was written out on a slip of paper. The defendants below, C. IT. Prescott, Jr., and G-. A. Prescott, testify that both Mr. Koblitz and his partner, Mr. Thomas, stated that the best rates they could make for the insurance then wanted was $1.60 on one risk and $1.50 on the other. Mr. Koblitz in rebuttal denies this. Mr. Thomas was not called in rebuttal.

It is not denied but what both by letter and in the last interview between the parties to this suit, which took place in Septeniber, 1899, the plaintiffs in error declined to have anything further to do with Koblitz under the contract, and unless they were justified in so refusing they should respond to him in damages, but we think the evidence fails to show that he offered to furnish insurance at such rates as would not be above the average rates paid by other lumber dealers on like hazardous risks at the time. We find nothing to indicate that he ever suggested that for the time being he would furnish insurance at less than the rates fixed by this inspection bureau, and we think it clear that this was above the average rate paid on like risks which were considerably below the board rates, the only rates at which Koblitz seems to have offered to furnish any insurance.

Counsel for defendant in error urge, both in oral argument and in brief furnished, that the answers made by the jury to interrogatories propounded to them are such that if any error was committed by the court, either in the rulings upon evidence or the charge to the jury as to the measure of damages, such errors were in no wise prejudicial to the plaintiff in error. It is perhaps doubtful whether these interrogatories with their answers are properly before us. They do not appear in the transcript nor in the bill of exceptions, beyond the fact that the court said to the jury, at the close of the charge:

"The plaintiff has submitted certain interrogatories, which interrogatories you will answer as you find the facts to be from the evidence, and have each interrogatory signed by your foreman. ’ ’

Then follows one interrogatory only. And the court said to the jury:

"You will answer these questions from the evidence, and your foreman will sign the answer after each one in the space for that purpose, and you will also answer the other questions submitted. They are numbered from 2 to 14. Number 1 is stricken out.”

AVe find among the files a paper with the number and name of the ease in typewriting upon the back of such paper, followed by the word “Interrogatories,” and then written with a pen are the words "Filed April 28, 1902.” There is nothing other than these words to indicate by whom they were filed or where they were filed; bnt treating them as properly before us, they do not relieve the errors which we find were committed from prejudice to the plaintiff in error. The first question which appears to have been answered by the jury reads: "Were not other lumber firms in this city then paying bn like hazardous risks the same rates as those offered by plaintiff to defendants?” This is answered, "Yes.” The fact that some other lumber firms were paying on like hazardous risks the rates at which the plaintiff below offered to furnish insurance to the plaintiffs in error would not be sufficient to show that he was offering to furnish insurance at the rates provided in his contract. The next question which was answered, reads: "What other lumber firm or firms in this city besides the defendants paid a less rate of the premium for fire insurance in September, 1899, on a risk or risks of equal hazard with the defendants.” The answer is "No, none.”' We think the evidence did not justify this answer. The next three questions are based upon the one just quoted. The next: "What was the value of the house and lot which defendants contracted to sell to plaintiff?” The answer is: "$3,000.” The fact that this answer was justified by the evidence does not relieve the charge as to the measure of damages from prejudice to the plaintiffs in error, if the views expressed in this opinion as to the true measure of damages are correct. The next three are answered in accordance with the views of this court as to the evidence, but do not affect what has already been said as to the introduction of evidence on the measure of damages. The answers to the next three are not inconsistent Avith the position taken here by the plaintiffs in error.

The last question reads: "Did defendants’ failure to furnish plaintiff with the information mentioned in question No. 11 prevent plaintiff from tendering policies of insurance as required by his contract?” The answer is, "Yes.” If it is meant by this to say that this Avas the only thing which prevented the defendant in error from tendering the policies, it is not justified, we think, by the evidence.

For error upon the admission of evidence and in the charge of the court, and for the reason that the verdict is not sustained by the evidence, the judgment of the court of common pleas is reversed.


source: Caselaw Access Project

author: Jones (Oliver B.), J.

license: Public Domain

text:
    PLAINTIFF’S REMEDY IN A SUIT AT LAW RATHER THAN FOR SPECIFIC PERFORMANCE.
    Court of Appeals for Hamilton County.
    Fisher-Barkdull Farm Agency v. Harry M. Creager.
    Decided, November 8, 1915.

      Specific Performance — Denied After Conveyance to Another of the Land Claimed hy Plaintiff.

    Where it appears that prior to the bringing of an action for specific performance of a contract to exchange one tract of land' for another, the plaintiff had knowledge both actual and constructive that the defendant had already conveyed the land sought in exchange to a third party, the court will not retain the case for assessment of damages, but will relegate the plaintiff to an action at law.

      DeCamp & Sutphin and L. J. Brumleve, for plaintiff.

      H. J. Buntin, for defendant.
   Jones (Oliver B.), J.

This is an action to enforce the specific performance of a contract to exchange a tract of land in Cincinnati for a tract of land in Florida. The contract provided for an even exchange of the two properties.

Before this suit was filed the defendant had sold and conveyed to a tona fide purchaser all of the Cincinnati land which under said contract was to have been exchanged with plaintiff company for the Florida land. This sale was consummated and the deed of conveyance left for record with the recorder of Hamilton county, Ohio, three days before the filing of the suit, and constructive notice thereby given to plaintiff. The agent and attorney of plaintiff were both personally told by defendant that she had so sold her land, two days before the filing of this suit. Plaintiff therefore had both constructive and actual notice that it would be impossible for defendants to specifically perform their contract. The purchaser of the Cincinnati land is not made a party to the suit nor is any claim made that the sale was not made to him in good faith.

“Specific performance can not be decreed of an agreement to convey property which has no -existence or to which the defendant has no title; and if the want of title was known to the plaintiff at the time of beginning the suit the bill will not be retained for assessment of damages.” Kennedy v. Hazelton, 128 U. S., 667 (9 Sup. Ct. Rep., 202; 32 L. Ed., 576).

Plaintiff was fully advised before bringing this suit that defendants had conveyed aAvay their title and that the contract could not be specifically performed. Under these circumstances the case would not be retained byr the court for the assessment of damages, but must be dismissed, and plaintiff relegated to an action at law where its remedy is adequate. Jones v. Tunis, 99 Va., 220; Kerlin v. Knipp, 207 Pa. St., 649; Eastman v. Reid, 101 Ala., 320; Public Service Corporation v. Hackensack, 72 N. J. Eq., 285; Mack v. McIntosh, 181 Ill., 663; National Tube Co. v. Tube Co., 3 C.C.(N.S.), 459.

As the case, however, was heard on evidence and fully argued both orally and by brief, it might be stated that even if the land were still owned by defendants and subject to a decree for specific performance, that in the opinion of this court plaintiff corporation has failed to show that it would be entitled to such decree. And taking the land of plaintiff at its own valuation it would not appear that it has suffered any damage in failing to exchange it for that formerly owned by defendant.

Petition of plaintiff dismissed at its costs.

Jones (E. H.), J., and Gorman, J., concur.


author: Gorman, J. Jones (E. H), P. J.,

text:
    CONSTRUCTION OF A BOND OF INDEMNITY.
    Court of Appeals for Hamilton County.
    The Supreme Council of the Royal Arcanum v. Emma Sandau Folz et al.
    Decided, March 29, 1915.

      Pleading — Conditions of the Bond Sued on Discovered by Search of the Record at Hearing on Demurrer — Liability of Sureties on Bond of Indemnity Against a Claim in Litigation Together With Counsel Fees and Other Expenses.

    1. While in an action to enforce a bond it is not competent, on demurrer to the petition, to look to the' bond attached thereto for the purpose of determining whether liability has arisen thereunder, nevertheless a reviewing court, upon searching the record and ascertaining from a prior pleading the conditions of the bond claimed to have been breached and there set out in haec verba, may adjudge whether the default alleged is within the condition of the bond.
    2. Where the condition of a bond is that the obligee shall be held blameless on account of a certain claim in litigation, together with counsel fees and other expenses, the indemnity promised covers only the amount the obligee is compelled to pay by legal proceedings, and does not include counsel fees and other expenses incurred in defeating said claim.

      Edwin J. Howard, for plaintiff in error.

      Einkead & Rogers, for E. S. Folz.

      Adam A. Kramer, for Eleanora C. Alms and Williams Alms.
   Gorman, J.

Tbe action below was one to recover upon a bond executed by William Sandan as principal, and William H. Alms and Frederick H. Alms as sureties, in favor of the plaintiff in error.

Plaintiff in error, a fraternal benevolent association, had issued a certificate in the sum of $3,000 upon the life of Frederick H. Sandan. At his death the certificate was presented for payment and at that time the wife of Frederick H. Sandan, Lillian Sandau, made claim for the money payable under the certificate. It appeared that there had been a former certificate issued by defendant in error on the life of Frederick H. Sandau payable to Lillian Sandau, his wife. This certificate had not been taken up and canceled, but a new certificate was issued upon the life of Frederick H. Sandau, payable to his brother, William Sandau. This brother, William Sandau, paid the premiums during the lifetime of Frederick H. Sandau, and presented this certificate for payment upon his death. Thereupon, plaintiff in error stated that Lillian Sandau, the widow of Frederick il. Sandau, made claim to the fund. Plaintiff in error' finally agreed to pay the $3,000 to William H. Sandau upon condition that he execute a bond of indemnity to the plaintiff in error, which bond was accordingly executed, a copy of which is attached to the petition and made part thereof.

A demurrer was sustained to the petition, and thereupon an amended petition was filed setting out many facts, and attaching a copy of the bond to the amended petition, and making it a part thereof.

The defendant, Emma Sandau Folz, as executrix of the estate of William Sandau, deceased, demurred to the amended petition for the reason that same did not state facts sufficient to constitute a cause of action. Eleanora C. Alms, administratrix of the estate of Frederick PI. Alms, and Eleanora C. Alms individually also demurs to the amended petition, as did William IP. Alms. Their demurrers also were upon, the grounds that the amended petition did not state facts sufficient to constitute a cause of action. The demurrers to this amended petition were sustained, and the plaintiff not desiring to plead further or amend the amended petition, the defendants were all dismissed, with their costs.

Error is prosecuted to this judgment of the court below in sustaining the demurrers to the amended petition.

The copy of the bond attached to the amended petition is as follows:

“■Know all men by these presents.
“That we, William Sandau, as principal, and William H. Alms and Frederick H. Alms, as sureties, all of Cincinnati, Ohio, are held and firmly bound unto tbe Supreme Council of the Royal Arcanum, a corporation duly established under the laws of the Commonwealth of Massachusetts, in the sum of Three Thousand ($3,000.00) Dollars, to be paid to the said Supreme Council of the Royal Arcanum, its successors or assigns, for the payment whereof well and truly to be made, we jointly and severally bind ourselves, our heirs, executors and administrators firmly by these presents.
“Signed by us this 17th day of February, A. D., eighteen hundred and ninety-seven.
“The condition of the above obligation is such that whereas, the Supreme Council of the Royal Arcanum, on the 12th day of October, 1893, issued its benefit certificate No. 141,020, to Frederick IT. Sandau, a member of Hoboken Council No. 99, Royal Arcanum, located at Hoboken, N. J., payable upon the death of said Frederick PI. Sandau, to his brother William Sandau;
“And whereas, the said Frederick II. Sandau departed this life on June 30, 1896, and due proof of his death has been furnished to the said Supreme Council of the Royal Arcanum;
“And whereas, all of the assessments, dues and payments required under said certificates have been duly paid since the issuance thereof by the said William Sandau;
“And whereas the said Frederick PI. Sandau died without leaving any children, but leaving Lillian Sandau as his widow;
“And whereas the said Lillian Sandau claims some interest or ownership in said certificates, or the amount payable thereunder by reason of the existence of a prior certificate, and the said William Sandau claims to be the sole beneficiary under said certificate, and that the said widow has no right, title or interest in or to said certificate, and is desirous of collecting the amount payable thereunder, and the said Supreme Council of the Royal Arcanum is willing to pay the same to him, provided it is indemnified against any claim or interest to which the said Lillian Sandau is or may be entitled;
“And whereas, in consideration of the payment of the amount due under said first named certificate by the said corporation to the said William Sandau, the said William Sandau has agreed, and does hereby agree, in case the said corporation shall ever be called upon or required through any legal proceedings to pay to the said Lillian Sandau any sum of money whatever under said certificate or any prior certificate issued by said corporation to said Frederick H. Sandau or by reason of or under the membership of said Frederick PI. Sandau in said Hoboken Council No. 99, that he will on demand pay to said corporation, the said sum, together with such counsel, court' and witness fees and other expenses as it shall reasonably incur in connection with the claim of said Lillian Sandau or any person claiming by, through or under her and will fully reimburse the said corporation in any sum and all sums it shall be thus obliged to pay said Lillian Sandau and in all such fees and expenses as aforesaid.
“Now, therefore, if the said William Sandau shall fully keep and perform his said agreement; then this obligation shall be void; otherwise it shall be and remain in full force and effect.
“Wm. Sandau (Seal.)
“Fred H. Alms (Seal.)
“Wm. H. Alms (Seal.)
' ‘ Executed in our presence:
' ‘ John Fred. Theler,
“Wm. Stegner.
“State of Ohio, County of Hamilton, ss:
“Be it remembered that on the 17th day of February, 1897, personally appeared before me, the undersigned Notary Public in and for Hamilton County, Ohio, duly commissioned and qualir fied, William H, Alms and Frederick H. Alms, the parties mentioned in the foregoing instrument, and acknowledged the signing and sealing thereof to be their voluntary act for the uses and purposes therein mentioned.
“In testimony whereof, I have hereunto subscribed my name and affixed my Notarial seal at Cincinnati, Ohio, this 17th day of February, 1897.
“Jacob Kramer,
“Notary Public in and for Hamilton County, Ohio.”

Now it will be seen from a perusal of this bond that William Sandau agreed in case the corporation should ever be called upon or required through any legal proceedings to pay the said Lillian Sanda.u any sum of money under said certificate or any prior certificate, or by reason of the membership of said F. H. Sandau in said corporation, he, William Sandau, would on demand pay to said corporation the said sum, together with such counsel, court and witness fees and other expenses as it shall reasonably incur in connection with the claim of said Lillian Sandau, and will fully reimburse the corporation in any sum and all sums it shall be thus obliged to pay to said Lillian Sandau and in all such fees and expenses as aforesaid.

The amended petition discloses that suit was brought by Lillian Sandau against the plaintiff corporation in the circuit court of Hudson county, N. J., to recover the $3,000 which she claimed under the certificate issued by plaintiff, or under a former certificate which was taken up and replaced by the one that was in existence at the time of the death of her husband, Frederick H. Sandau. This cause was pending for many years in the New Jersey court, and a judgment was finally rendered on December 13, 1911, in favor of the plaintiff in error, the Supreme Council of the Royal Arcanum, and the action of Lillian Sandau was dismissed and she recovered no sum whatsoever. Three thousand dollars was paid to "William Sandau upon the execution of the bond.

Plaintiff in error avers that it incurred expenses amounting to $142.76 for taking depositions and testimony in said case in New Jersey, which sum was paid by William Sandau in his lifetime, and it also incurred an expense of $496.33 as attorneys fees for defending said cause in New Jersey, said sum having been charged by one W. O. Apgar, and attorney, and that the same were reasonably worth the amount of his charges. Plaintiff in error therefore prays judgment against the defendants in error on said bond in the sum of $496.33.

The question submitted to the court below, and also to this court, is what is the construction to be placed upon this bond. It is contended by counsel for plaintiff in error that the principal, William Sandau, and the sureties on the bond were obligated to pay counsel fees, court costs and witness fees, and other expenses connected with the claim of Lillian Sandau, whether she recovered a judgment or not; while counsel for the sureties and Mrs. Folz, the widow of Sandau, claim that the condition of the bond is such that they were not required to pay except where there was a recovery against the plaintiff in error in favor of Lillian Sandau, in which event they were to pay under the bond the amount of recovery, together with the court costs, attorney fees, witness fees and other expenses.

It may be that it was the intention of the parties to draw a bond to indemnify the plaintiff in error against any loss or expenses which it might incur by reason of the claim of Lillian Sandau, whether her claim was successful or unsuccessful, but as we read this bond we are of the opinion that the condition of the bond is such that the principal and the sureties thereon were not obligated to pay to the plaintiff in error any sum whatsoever unless it was required to pay by legal proceedings.

Now the amended petition discloses that the plaintiff in error was not required to pay anything to Lillian Sandau in the court proceedings, and therefore plaintiff in error has no claim upon the principal and sureties upon this bond, because it was not called upon or required to pay Lillian Sandau, by legal proceedings or otherwise, and it was only in the event that the plaintiff in error was required to pay by legal proceedings that counsel fees, witness fees, court fees and other expenses were to be paid. The language of the bond is that he will on demand ‘ ‘ pay to said corporation the said sum, together with such counsel, court and witness fees, ’ ’ etc., as it shall reasonably incur in connection with the claim of said Lillian Sandau. Said sum refers to the money which the plaintiff in error may be called upon or required to pay to Lillian Sandau by legal proceedings, and it was only in the event that it was required to pay this sum that-the plaintiff in error could call upon the principal and the sureties on this bond to pay a sum other than counsel fees, witness fees and court costs. The position of plaintiff in error was that William Sandau, or Lillian F. Sandau, the widow of Frederick Sandau, was entitled to $3,000, and it was desirous of protecting itself against the payment of this sum twice. William Sandau was anxious to receive the $3,000, but if it should be adjudged in a legal proceeding that Lillian Sandau was entitled to the money, then he was to refund the $3,000 paid to him by the plaintiff in error.

We do not think that the principal and the sureties on this bond obligated themselves to pay court costs, witness fees, counsel fees and other expenses, if Lillian Sandau failed in her legal proceedings to recover from the plaintiff in error. We think that the plain language of the bond calls for no other construction, if we take into consideration the words “together with such counsel and witness fees” in connection with that which precedes the words. It will be manifest that it was only in the event that plaintiff in error was obliged to pay to Lillian F. Sandau, that William Sandau was to reimburse plaintiff in error for the amount which it was obliged to pay to Lillian F. Sandau, and then counsel fees, court costs, witness fees, etc., were also to be paid. This conclusion is further strengthened by the words “fully reimburse the corporation in any sum and all sums it shall be thus obliged to pay said Lillian F. Sandau and in all such fees and expenses as aforesaid.” The word “thus” refers to the obligation of the plaintiff in error to pay to Lillian F. Sandau by legal proceedings and not otherwise.

The amended petition having disclosed that the plaintiff m error was not required or called upon by legal proceedings to pay Lillian F. Sandau, but on the contrary was discharged by legal proceedings from any liability to her, plaintiff in error was not in a position to call upon the principal and sureties on this bond to' pay any counsel fees, court costs, witness fees or other expenses incurred in that litigation. The obligation to pay counsel fees — and that is all that is involved in this case— would only follow the recovery of a judgment in favor of Lillian Sandau against the plaintiff in error, or the requirement by some legal proceeding upon the part of the plaintiff in error to pay Lillian Sandau a sum of money.

The amended petition sets out that plaintiff declined to pay William Sandau, upon his demand, the $3,000 provided in said certificate, unless said William Sandau should indemnify it by giving it a good and sufficient bond to hold it harmless from loss or liability that it might be called upon or required to pay said Lillian Sandau under said certificate or under said prior certificate and from any loss by reason of the payment by it of any counsel fees, court fees, witness fees and other expenses incurred in connection with the claim of said Lillian Sandau, etc., and to reimburse plaintiff in any sum or sums it should be obliged to pay said Lillian Sandau and from any loss by reason of the payment of any counsel fees, court fees, witness fees and other expenses incurred as aforesaid in connection with the claim of said Lillian Sandau irrespective of ivhether or not any judgment was rendered in favor of said Lillian Sandau or against the sa/id Supreme Council of the Boyal Arcanum.

The above underscored words are not in the bond executed; nor does plaintiff aver that they are set out in the condition of the bond. All that is averred with reference to the condition of the bond is that plaintiff declined to pay the $3,000 unless William Sandau would execute a bond containing the conditions averred. It fails to state that such a bond was executed. It then avers, after the averments above set out, that William Sandau executed and delivered to plaintiff his certain bond in the sum of $3,000 signed by him as principal and William IT. Alms and Frederick H. Alms as sureties, a true copy of said bond being hereto attached and marked “Exhibit A” and made a part hereof. Plaintiff utterly fails to set out the conditions which the plaintiff demanded should be incorporated into the bond. This was not sufficient in our opinion; but it should either have averred that the conditions demanded to be incorporated into the bond, were made a part of the bond, or he should have set out the condition of the bond in haec verba, as it did in the original petition.

By its failure to do this we are of the opinion that its amended petition was fatally defective as against the demurrer.

This case was argued and briefed in this court by all the parties, on the theory that the copy of the bond attached to the amended petition is a part of the petition. We have doubts as to whether or not the copy of the bond is a part of the amended petition under the decisions construing Section 11333, General Code, but are inclined to the opinion that it can not be considered a part of the amended petition.

Unless the demurrer searches the record so as to enable us to look at the original petition, which does set out the condition of the bond in haec verba, we would not be warranted-in holding that the condition of the bond has not been broken or that the terms and conditions thereof are such as preclude a recovery by plaintiff under the averments of the amended petition. There are authorities which hold that on a demurrer to a pleading the court may search the record and look to a similar prior pleading filed by the same party to determine whether or not a judgment should be given against the party whose pleading is first defective in substance. Trott v. Sarchett et al, 10 O. S., 242; R. R. Co. v. Mowatt, 35 O. S., 284, 286; Johnson v. Pensacola R. R. Co., 16 Fla., 623.

For these reasons we have thought is not improper to express our views on the construction to be given to the bond and the condition thereof, and so considering this aspect of the case, we have expressed the opinion that there is no liability under this bond, under the pleadings filed in the ease.

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

Jones (Oliver B.), J., concurs.

Jones (E. H), P. J.,

dissenting.

The court can not look to the exhibit as a part of the amended petition (Crawford v. Morrison, 27 O. S., 421; Olney v. Watts, 43 O. S., 499). In the latter case the court said:

“If the exhibit could be looked to, as a part of the petition, perhaps it does appear, but the exhibit is no part of the pleading and does not help it out. We are therefore compelled to lay out of view what counsel on both sides seem to concede in argument that we should consider on this demurrer; that is, what appears in the exhibit attached to the petition but not made a part of it.”

The plaintiff in the case before us in its petition undertakes to make the exhibit a part of it, but that does not help the pleading. We must determine the sufficiency or insufficiency of a pleading from its “direct averments.” Olney v. Watts, supra.

Without reference to the bond sued upon and attached to the petition, the pleading states a cause of action, and the demurrer for that reason is not well taken.

But the majority of this court decides the case as if the bond is a part of the amended petition, and it was so argued by counsel. The bond is only evidence, and a copy is required by statute to be attached to the petition. If, upon trial, the evidence does not support the petition, plaintiff must fail; but we can not look to evidence, oral or doeumeiitary, in the consideration of a demurrer to the petition.

But since counsel, the lower court and the majority of the members of this court, have looked upon the demurrer as calling for a construction of the bond upon which the claim of plaintiff rests, I must express my disapproval and dissent from the judgment thereon.

The bond given by Sandau and his sureties provides that if the obligee is ever called upon through legal proceedings ,to pay to Lillian Sandau any sum of money under any certificate issued to Frederick PI. Sandau, they will pay to it on demand said sum together with such counsel, court and witness fees and other expenses as it shall reasonably incur in connection with send claim of said Lillian Sandau, and fully reimburses it in any and all sums it shall be thus obliged to pay her and in all such fees and expenses. At the time this bond was given, the plaintiff had been called upon by Lillian Sandau to pay to her the amount of the certificate, so that there were in fact two claimants for the fund. It was to protect the plaintiff company that the bond was given.

The interpretation placed upon this bond is unreasonable. The bond is self-explanatory and expresses the agreement between the parties in clear and unmistakable language. Admitting the genuineness of the bond and the allegations of the amended petition, the plaintiff has a right to recover in this action. To hold otherwise involves so many absurdities and inconsistencies as to cast aspersion upon the intelligence and even upon the sanity of the contracting parties. It means that they contracted that if the obligee who was to defend the suit made a weak defense and lost the case, it was to profit thereby, because in such a proceeding the costs and expenses would not be as great as in a case where capable counsel were employed and a determined effort made to succeed. In the event the case was lost, as a result of feeble and indifferent defense, the Supreme Council, under the terms of the bond, would on demand be paid the expenses incurred; but if by vigilance and industry it won the ease, it must pay all expenses. It must be admitted that by such a misconstruction, the bond' induces negligence, offers a reward for perfidy, and places a premium upon inaction and default.


author: (Shields, Powell and Houck, JJ.).

text:
    PAYMENTS VOLUNTARY AND OTHERWISE ON CLAIMS FOR NECESSARIES.
    Court of Appeals for Stark County.
    John Haas v. George Haas.
    Decided, February 8, 1916.

      Necessaries — Voluntary Payment on Written Demand Not a Bar to Garnishment by Another Creditor — Purpose of the Statute Relating to Personal Earnings.

    1. Voluntary payments made by a debtor from his personal earnings, on a claim against him for necessaries, do not preclude an attachment and the subjecting of ten per cent, of such earnings to the payment of the claim of another creditor for necessaries, notwithstanding demand had been made upon him in writing for such payment by the first creditor.
    2. Voluntary payments made after such demand relieve the debtor from the consequences of suit and costs, the provisions of the statutes applying where an action is brought to reach the personal earnings of the debtor, and not to cases where voluntary, payments are made without reference to prior or pending attachment proceedings.

      J. W. Burris, for plaintiff in error.

      Fisher & McGushey, contra.
   Per Curiam

(Shields, Powell and Houck, JJ.).

Proceedings in attachment were instituted before a justice of the peace to reach 10 per cent, of the personal earnings of the debtor for necessaries. It appears that at the time such proceedings were commenced, the debtor was making voluntary-payments of his personal earnings to another creditor for necessaries, who had threatened to sue and garnishee his wages upon written demand made therefor. Such attachment was discharged by the said justice of the peace, and on an appeal taken to the court of common pleas, said court reversed the judgment of the said justice of the peace discharging said judgment and ordered said case remanded to the said justice of the peace for further proceedings. Error proceedings are prosecuted to this court to reverse the judgment of said common pleas court.

By Section 10253, General Code, a remedy is afforded for the attachment of the personal earnings of a debtor when an affidavit is filed with a justice of the peace conforming to the requirements therein stated. This is the general provision provided by statute. Section 10271, General Code, as amended (103 O. L., 567), provides that:

“The personal earnings now exempted by law, in addition to the 10 per cent, for necessaries, shall be further liable to the plaintiff for the actual costs of any proceeding brought to recover a judgment for such necessaries, in any sum not to exceed two dollars and the necessary garnishee fee. Such garnishee may pay to such debtor an amount equal to ninety per ' cent, of such personal earnings, less the sum of two dollars and the necessary garnishee - fee of not to exceed fifty cents, if the same is demanded by the garnishee, for actual costs as herein provided, due at the time of the service of process or which may become due thereafter and before trial and be released from any further liability to such creditor, or to the court or any officers thereof, in such proceeding, or in any other proceeding, brought for the purpose of enforcing the payment of the balance of the costs due in said original action. Both the debtor and the creditor shall likewise be released from any further liability to the court or any officers thereof in such proceeding or in any other proceeding brought for the purpose of enforcing the payment of the balance of the costs due. in said original action. ’ ’

Section 10272, General Code, provides that:

“The person bringing an action for necessaries first must make a demand in writing for the excess over and above 90 per cent, of the personal earnings of the debtor, and such demand shall be made at least three days and not more than thirty days before such action is brought by delivering such demand to the debtor personally, or by leaving it at the debt- or’s usual place of residence. No cost or expense shall be chargeable to the defendant debtor in such action if upon such demand he tenders payment in money or duly accepted order, within three days after such demand, for the excess of his personal earnings above 90 per cent, thereof.

Section 10273, General Code, provides that:

"More than one such demand by the same creditor shall not be made at closer periods than thirty days. The amount demanded may be for the excess above 90 per cent, earned during the interval of thirty days. Any voluntary payment or payments made by the debtor during such interval shall be deducted from the amount which might be demanded had no payment or payments been made.”

Other statutory provisions follow with reference to the duties of the garnishee, but the foregoing sections will suffice for the purpose of this case. Related as they are to the same subject-matter, we may well assume that these several sections of the statutes are to be construed together to ascertain the object of- their enactment, and when so construed the legislative intent, in our judgment, will not be difficult of solution.

The foregoing legislation1 was obviously passed in the interest of creditors furnishing necessaries to persons whose personal earnings were theretofore protected by the exemption laws of the state, and while not saving to the debtor’s family the full benefit of his labor, a small proportion of it is exacted by the laws to be applied towards satisfying the claims of the grocer or other person who may supply necessaries for his table and household. Legislation of this character has gradually found place upon our statute books from time to time, until now it is provided by said Section 10271 that in addition to the per cent, of such earnings ■heretofore held liable for necessaries, such earnings shall be liable for costs in a sum not to exceed two dollars in an action brought by a creditor on a claim for necessaries.

The demand mentioned in said Section 10272, General Code, is held to be jurisdictional, hence unless such demand is made as therein required, if suit be brought, the attachment can not be maintained, for said section recites that "no cost or expense shall be chargeable to the defendant debtor in. such action, if upon such demand he tenders payment in money or duly accepted order, within three days after such demand, for the excess of his personal earnings above 90 per cent, thereof.” It would seem that this latter provision of said section was intended to relieve the defendant debtor from the consequences of a contested suit by the creditor. As will be seen said Section 10273 provides that not more than one demand by the same creditor shall be made at closer periods than thirty days. Grouping said sections together, then, we find that after written demand is made within the time stated, and in the absence of payment being made or tendered, or an accepted order given for the excess of the debtor’s personal earnings above 90 per cent, thereof, suit may be brought therefor and a recovery had, together with the further sum of two dollars as costs, provided that no more than one such-demand by the same creditor shall be made at closer periods than thirty days.

Here we have the question made whether one can make voluntary payments under a demand made for necessaries, in the absence of suit, and thus absolve himself from complying with compulsory process issued by another creditor upon a claim for necessaries furnished to the same defendant debtor while such voluntary payments are being made, at intervals of thirty days, or in other words, can such voluntary payments so made defeat a creditor from enforcing payment of his claim for necessaries furnished in an action commenced by the latter while such voluntary payments are being made? Construing Sections 10271 and 10.272 together it appears that the provisions of said sections were intended to apply to and become effective in eases where action is brought to reach the personal earnings of a debtor for necessaries furnished, and not to eases where voluntary payments are made. Voluntary payments may be made, but not so as to defeat the rights of an attaching creditor under the statute, for if it were otherwise the provisions of the statute and what seems to have been the purpose of this legislation would be rendered ineffective and nugatory.

It follows that the judgment of the court of common pleas will be affirmed.


author: Gorman, J.

text:
    ANSWER. WRONGFULLY STRICKEN FROM FILES.
    Court of Appeals for Hamilton County.
    P. C. Bertram v. Theobald Munford Co.
    Decided, November 15, 1915.

      Judicial Discretion — Abuse of, in Strilcing Answer from the Files— Pleading.

    It is an abuse of discretion for a court to strike from tbe files an answer which was filed by leave, where no ground for so doing was shown except that at the time the answer was tendered and leave to file granted, a motion was pending for a default judgment and the answer set up only a general denial.

      Reece & Reece, for plaintiff in error.

      Gogan, Williams & Ragland, contra.
   Gorman, J.

The record in this case discloses that an action was commenced by defendant in error before a justice of the peace to recover for goods sold and delivered, that judgment was rendered in favor of defendant in error and an appeal from said judgment was taken by plaintiff in error and a transcript filed in the common pleas court on December 26, 1913. On February 4, 1914, the defendant in error being in default filed a petition on appeal. On June 27, 1914, the plaintiff in error being in default asked and obtained leave to file an answer which was a general denial. Two days later, on June 29, 1914, defendant in error filed a motion to strike the answer from the files and for judgment. No grounds are set out in the motion for this action. On July 2, three days after the filing of said motion, the court granted the same, and the entry recited that it appeared to the court that at the time defendant tendered his answer and asked leave to file the same, a motion was pending on behalf of plaintiff for a default judgment, and it appearing to tbe court that said answer is a general denial, the court finds said motion to be well taken.

The entry granting leave to file the answer was set aside, and the answer stricken from the files.

On the same day, by a separate journal entry, the court entered judgment by default against plaintiff in error, defendant below. Exceptions were taken by plaintiff in error to these proceedings, and the cause is here on error to said judgments.

We think the court of common pleas erred in striking the answer of plaintiff in error from the files.' No cause is shown for such a proceeding. The defendant below had secured leave of court to file his answer, a general denial, and no claim was made that there had been any impropriety or misconduct in securing leave to file the pleading. The record fails to show that there was a motion pending for a default judgment; but if there had been such a motion pending it was- within the sound discretion of the nisi prius court to grant leave to defendant below to file an answer. There was no claim made that the answer was false or frivolous or filed as a sham pleading for the purpose of hindering or delaying plaintiff in the collection of his claim. Even if the court of common pleas in the exercise of a sound discretion could have stricken the answer from the files, the facts in this case show that there was an abuse of its discretion.

Judgment reversed and cause remanded for such proceedings as are authorized by law.

Jones (Oliver B.), J., and Jones (E. H.), J., concur.


author: Shields, J.

text:
    JEOPARDY WHERE THERE HAS BEEN A PROSECUTION FOR. A LESSER OFFENSE.
    Court of Appeals for Fairfield County.
    Frank Crowley v. State of Ohio.

    Decided, September Term, 1915.

      Criminal Law — Same Action and Same Offense Distinguished — Prosecution for Assault Does Not Bar Prosecution for Assault ioith Intent to Commit Rape.

    The offense of assault and battery and of assault with, intent to commit rape are made by our statutes separate and distinct, and prosecution for the lesser and subsequently for the greater offense does not constitute a placing of the defendant in jeopardy twice for the same offense.

      M. A. Dmgherty and M. A. Daugherty, Jr., for plaintiff in error.

      Jas. A. Tobin, Prosecuting Attorney, and C. G. Gou/rtright, contra.

       Affirmed by the Supreme Court February 29, 1916, 93 Ohio State.

   Shields, J.

On the 5th day of November, 1914, an affidavit was filed by one Nellie Finley against the plaintiff in error before one C. M. Rowlee, mayor of the city of Lancaster, in Fairfield county, Ohio, charging the plaintiff in error with committing an assault and battery upon the said Nellie Finley on the 4th day of November, 1914, to which said charge the plaintiff in error entered a plea of guilty, whereupon the said mayor sentenced the plaintiff in error to imprisonment in the work-house at Zanesville, Ohio, for the period of 120 days, and to pay the costs of prosecution, and said plaintiff in error was so imprisoned.

Afterward and at the January (1915) term of the court of common pleas of said Fairfield county, the grand jurors of said county returned an indictment against the plaintiff in error charging that—

“Frank Crowley, on the 4th day of November, in the year of our Lord one thousand nine hundred and fourteen, at the county of Fairfield aforesaid, in and upon one Nellie Finley did unlawfully make an assault, and her, the said Nellie Finley, then and there unlawfully did strike and wound, with intent, her, the said Nellie Finley, violently, forcibly and against her will, then and there unlawfully to ravish and carnally to know.”

To this indictment a plea in bar was interposed by the plaintiff in error setting forth, in substance, that the state of Ohio ought not to prosecute said indictment against him because he says that the state of Ohio had theretofore procured and had judgment' of conviction and sentence pronounced upon and against him for the same act, the same assault, and the same offense mentioned, described and pleaded against him in the same indictment, upon a plea of guilty to said affidavit before said mayor who had full and final jurisdiction to pronounce said final judgment and sentence and to cause the same to be, fully carried out and executed, which was done; that the said Frank Crowley named in said affidavit is the same person named in said indictment, and that the said Nellie Finley upon whom the assault with intent to ravish and carnally to know was made as charged in said indictment is the same Nellie Finley upon whom the assault and battery is alleged to have been made as charged in said affidavit.

To said plea in bar, the state by its prosecuting attorney filed a demurrer, and upon a hearing had said court sustained the same. Thereupon a plea of not guilty was entered to said indictment and upon trial had the plaintiff in error was found guilty. A motion for a new trial being overruled, the plaintiff in error was sentenced according to law, to all of which proceedings of said court in sustaining said demurrer to said plea in bar and said judgment of conviction and sentence the plaintiff in error duly excepted, and by a petition in error filed in this court the plaintiff in error seeks a reversal of the judgment of said court of common pleas.

Several assignments of error are alleged in said petition in error as grounds for the reversal of said judgment, and while not waiving any of said grounds of error, the principal ground alleged and insisted upon in argument in behalf of the plaintiff in error was that his constitutional rights were invaded and violated by being twice put in jeopardy for the same offense. If the claim thus made finds support in the facts appearing in the record, it would seem that said judgment was unauthorized and that the same should be set aside, otherwise not.

Let us examine. The offense charged before the mayor of Lancaster was that of assault and battery based upon an affidavit of the injured party. Having complied with the order made and judgment entered by said mayor, it is contended by the plaintiff in error that this was a satisfaction of the judgment of the law and put an end to any further prosecution growing out of the same act and offense. That it was a satisfaction of a judgment duly rendered by competent authority upon the charge made admits of no doubt, but is the remaining question to be answered in the affirmative ?

Article I, Section 10, of the late Amended Constitution provides that "no person shall be twice put in jeopardy for the same offense.5 ’ The plea in bar raises the question, then, whether the indictment covers the same act and offense described in the affidavit filed with said mayor. If it does, it follows that the action of the court below in sustaining said demurrer to said plea in bar was prejudicially erroneous and that the judgment of said court should be reversed.

The statute, Section 12423 of the General Code, under which the affidavit was filed before the said mayor, reads as follows:

"Whoever unlawfully assaults or threatens another in a menacing manner, or unlawfully strikes or wounds another, sba.ll be fined not more than two hundred dollars or imprisoned not more than six months, or both,”

The statute, Section 12421 of the General Code, upon which said indictment was predicated, reads as follows:

“Whoever assaults another with intent to kill, or to commit robbery, or rape upon the person so assaulted, shall be imprisoned in the penitentiary not less than one year nor more than fifteen years.”

It is not too much to say that a reading of the foregoing sections ought to enable us to ascertain the purpose of the Legislature, which alone has the power to create and define offenses, whether it was intended to describe one or more offenses of a like or different kind. The presumption is that the Legislature had in min'd the purpose of describing different offenses. To convict under Section 12423 it is recognized that the employment of physical force only is generally necessary to be shown, while under Section 12421 an additional and higher degree of proof is required, involving, as it does, the question of criminal intent as one of the essential requisites for conviction of the offense therein described. One describes a misdemeanor and the other a felony. While each is a separate and complete offense in itself when made out by a certain degree of proof, a different degree of proof is necessary to sustain a conviction under the latter than under the former section, thus showing that the identity of the offenses described in said sections is not the same. We are therefore led to conclude, adopting the well established rule that the intention of the Legislature must govern in the interpretation of statutes, that it was the purpose of the Legislature to create two separate and distinct offenses in the enactment of these sections.

But it is argued on behalf of the plaintiff in error that it is held in certain jurisdictions that because of certain constituent elements being present in the two offenses that therefore the position assumed by the learned counsel for the plaintiff in error can not be successfully challenged. Our Supreme Court recently passed upon a case involving the question raised in the ease here, in State v. Rose, 89 O. S., 383, and held that:

“The provision of the Constitution relating to jeopardy is in the following words: ‘No person shall be twice put in jeopardy for the same offense. ’ The offense charged in the information is not the same offense and does not include the offense charged in the indictment, and hence the defense of jeopardy must fail.”

Speaking for the court and specially referring to the feature of the case contended for by counsel, Judge Wanamaker says:

“To be in jeopardy there must not only be a sufficient legal charge, but a sufficient jurisdiction to try the charge.
“The words ‘same offense’ mean same offense, not the same transaction, not the same acts, nor the same circumstances or same situation. There is but one offense that is the same offense as ‘rape’ and that is ‘rape.’
“It is not enough that some single element of the offense charged may have a single element of some other offense as to which the defendant had theretofore been in jeopardy, but the constitutional provision requires that it shall be the ‘same offense.’
“Some courts have greatly expanded the natural and ordinary meaning of the words ‘same offense’ to include all lesser degrees that may be fairly included within the major charge.
“In all offenses against the person there must be in the first instance an assault. To such lengths have some courts gone as to hold that if the defendant had been in jeopardy of a single assault upon another person and subsequently such assault proved to be fatal, by reason of which he was subsequently indicted charged with murder, the defendant might thereupon successfully plead a former jeopardy, because necessarily included within the charge of murder or manslaughter was the charge of assault or assault and battery, with which he has been previously charged and as to which he has previously been in jeopardy. This doctrine, however, has not found favor in decisions of the Supreme Court of this state.”

While we think the decision in the foregoing case is decisive of the question raised here, and of this case, the following might be mentioned as sustaining said authority; Gavieres v. U. S., 220 U. S., 338; Morgan v. Devine, 237 U. S., 632; Freeland v. People, 16 Ill., 380; State v. Littlefield; 70 Me., 452; Morey v. Commonwealth, 108 Mass., 433; 3 Greenleaf, Section 36; 1 Chitty’s Criminal Law, 452, 456; Bishop’s Criminal Law (8th Ed.), Section 1053; 132 Pa. St., 372.

Recognizing that the test of identity of offenses is whether the same evidence is required to. sustain them as laid down in the authorities cited, but one conclusion can be reached by this court concerning the action of the court below in sustaining the demurrer to the plea in bar filed by the plaintiff in error, and that is that such action was proper and affords no ground of error for which the judgment of said, court should be reversed.

The judgment of the court of common pleas will, therefore, be affirmed, and said cause will be remanded for execution. Exceptions noted.

Powell, J., and Merriman, J. (sitting in place of Houck, J.), concur.


text:
    EVIDENCE AS TO PEDIGREE.
    Court of Appeals for Hamilton County.
    Charles McCune et al v. Hannah Hartnett Larkin.
    Decided, February 7, 1916.

      Evidence — Where Relating to Pedigree the Rinding of the Jury Will Not be Disturbed, When — Hearsay Evidence Competent, When.

    A reviewing court will not disturb a finding as to pedigree, where the only objection comes from the heirs of a deceased wife claiming the estate of her husband under Section 8576, General Code, and it appears certain that the husband left heirs. Nor will the finding with reference to pedigree and the degree of relationship he disturbed because of the introduction of hearsay evidence.

      Marston Allen, James E. Robinson and Otto Pfieger, for plaintiffs in error.

      B. S. Murphy and Calvin & Calvin, contra.
   Jones (Oliver B.), J.

The real question to be determined in this case is to whom the real estate of William H. Seymour passed by descent. He died without issue, after the death of his wife. The brother of his wife by the full blood claimed to be the sole owner. The three half-sisters and the son of a deceased half-sister claimed to each be entitled to a share with this brother in this inheritance. All of said relatives of the deceased wife claim tinder the provisions of Section 8576, General Code, which casts the descent upon the heirs of the wife only on the entire failure of heirs of her husband under the three preceding sections of the General Code.

The court below found that the defendant in error was the grandchild of a sister of the mother of William H. Seymour, and was his only living heir at law, and next of kin. The record develops an interesting inquiry into the family history of William H. Seymour, and shows the descendants of his maternal grandparents, Jerry and Kate Murphy of Kilbruin Parish, county of Cork, Ireland. Plaintiff is clearly shown to- be the sole survivor of this branch of the Murphy family. As the entire Murphy family of County Cork must be eliminated before any of the parties to the suit, other than defendant in error, could establish an interest in this property, the improbability of their success. is manifest. In our opinion the findings of fact as made by the court are fully sustained by the evidence.

Numerous objections were made as to the admission of evidence. The rule as to the admission of hearsay evidence to establish pedigree is stated in 2 Jones, Evidence, .Section 312, in which is found the following language:

“The law resorts to hearsay evidence in cases of pedigree, upon the ground of the interest in the declarations of the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. The rule of admission is therefore restricted to the declarations of deceased persons who were related by blood of marriage to the person, and therefore interested in the succession in question. From necessity, in cases of pedigree hearsay evidence is admissible. But this rule is limited to the members of the family, who may be supposed to have known the relationship which existed in its different branches. The declarations of these individuals, they being dead, may be given in evidence to prove pedigree; and so is reputation, which is the hearsay of those who may be supposed to have known the fact, handed down from one to another, evidence. As evidence of this description must vary by the circumstances of each case, it is difficult, if not impracticable, to'deduce from the books any precise and definite rule on the subject. It is not every statement or tradition in the family that can be admitted in evidence. The tradition must be from persons having such a connection with the party to whom it relates that it is natural and likely, from their domestic habits and connections, that they are speaking the truth, and that they could not be mistaken.”

It is also well stated in the opinion of the court in Fulgerson v. Holmes, 117 U. S., 389, 397, as follows:

“The proof to show pedigree forms a well settled exception to the rule which excludes hearsay evidence. This exception has been recognized on the ground of necessity; for as in inquiries respecting relationship or descent, facts must often be proved which occurred many years before the trial, and were known to but few persons, it is obvious that strict enforcement in such cases of the rules against hearsay evidence would frequently occasion a failure of justice. # # * Traditional evidence is, therefore, admissible. The rule is that declarations of deceased persons who were de jure, related by blood or marriage to the family in question may-be given in evidence in matters of pedigree. A qualification of the rule is that before a declaration can be admitted in evidence, the relationship of the declarant with the family must be established by some proof independent of the declaration itself. But it is evident that but slight proof of the relationship will be required, since the relationship of the declarant with the family might be as difficult to prove, as the very fact in controversy.”

We fail to find any error prejudicial to plaintiffs in error regarding the admission of evidence.

It is also urged that the court erred in refusing the demand of plaintiff below for a jury trial.

It was practically conceded by the parties that the party having title to the land must be considered as in possession of it, a receiver having been appointed by the court to care for the property until the determination of the title. The action was in the nature of a proceeding in chancery. It was brought as an action for partition. Partition is a civil action not triable by a jury (McRoberts v. Lockwood, 49 Ohio St., 374; Swihart v. Swihart, 7 C. C., 338). The fact that the title of plaintiff was denied by the answer did not oust the court of jurisdiction (Perry v. Richardson, 27 Ohio St., 110). The answer and cross-petition of Hannah Hartnett Larkin was in the nature of an action to quiet title, which is a civil action under the code, in which the parties are not entitled to a jury. Under the pleadings, therefore, it was not error in the trial court to refuse the demand for a jury. Nor do we find any other errors to the prejudice of plaintiff in error.

Judgment affirmed.

Jones (E. H.), J., and Gorman, J., concur.


author: Grant, J.

text:
    VIOLATION OF CITY ORDINANCE IN PERMITTING SIDEWALK TO BECOME COVERED WITH ICE.
    Court of Appeals for Cuyahoga County.
    Agnes Fagins v. Bloch Realty Company.
    Decided, February 7, 1916.

      Negligence — Of Pedestrian in Walking over Sidewalk Known to be Covered with Ice — ■Abutting Property Oivner Not Deprived of the Defense of Contributory Negligence — By His Violation of a City Ordinance in Permitting the Ice to Accumulate.

    An inference of wantonness or willful negligence on the part of an abutting property owner, in permitting the sidewalk in front of his premises to become covered with ice in violation of a municipal ordinance, can not be imputed and his defense of contributory negligence be thereby cut off in an action brought by one who went upon the walk, knowing its dangerous condition, and fell and was injured in so doing. Failure to obey the ordinance and permitting the ice to accumulate were co-incident but not different things and do not introduce the rule of willfulness.

      A. H. Martin, for plaintiff in error.

      Ford, Snyder <& Tilden, contra.
   Grant, J.

In this proceeding we are asked to reverse tbe judgment of the court of common pleas, following a verdict directed by the court, upon the conclusion of the plaintiff’s testimony.

As being substantially correct, we adopt as our own the statement of the plaintiff’s brief as to the issues joined by the pleadings in the case as follows:

“Agnes Fagins, as plaintiff in the common pleas court, brought her action against the Bloch Realty Company, as defendant, and charged in her petition that the said defendant, being the owner and in possession of a certain tall brick building abutting on Walnut avenue, Cleveland, 0., on January 26, 1915, had constructed and maintained a certain down spout on said building which was inadequate to and which failed to properly conduct the water from the roof of said building to the sewer, but permitted the water accumulating on said roof to overflow and flow down the outside of said down spout and to be discharged on the surface of the sidewalk on Walnut avenue and to flow across the sidewalk eastwardly therefrom to the gutter, and so flowing to freeze and form an accumulation of ice in ridges on said sidewalk — causing the same to be dangerously obstructed, all in negligent, wanton disregard of the laws and ordinances of said city. That on said date she,, the plaintiff, while lawfully proceeding along said sidewalk as a pedestrian, in the exercise of due care, slipped and fell on said sidewalk, because of said icy obstruction and defect and suffered serious permanent injury to her right knee rendering her a permanent cripple. And charged that the defendant thereby had wantonly, negligently and in violation of the laws and ordinances of the city, inflicted said injuries upon her to her damage, and prayed judgment accordingly.”

The defendant in its brief says that the plaintiff’s statement of the facts which the testimony offered at the trial tended to prove, is also correct in substance; wherefore we adopt that also as ours, as follows:

“On January 26, 1915, at about 11:30 a. m., Agnes Fagins, plaintiff in error, a woman in her 57th year of age, was walking westward on the sidewalk on the north side of Walnut avenue, Cleveland, Ohio, ‘as carefully as she could’ in the business of collecting washings — she being a washerwoman — on her way to 1he Hanna Flats. Water accumulating on the roof of the Hanna Flats had backed up, the down spout being clogged and overflowed and instead of being conducted down the inner side of the down spout to the sewer, ran down the outside of the easterly down spout and was discharged upon the surface of the sidewalk and ran across the sidewalk to the street. In so doing it froze on the down spout and upon the sidewalk from time to time and caused an accumulation of ice, forming in ridges and unevenly across the sidewalk, being almost a foot thick or high at the side of the building at the end of the down spout and ranging from that thickness to three or four inches thick at the curb and extending entirely across the sidewalk from the building to the curb, and extending of the same width, eastwardly toward E. Twelfth street, from the down spout about eight or twelve feet. The sidewalk from the building and down spout to the curb is about ten feet wide. A pedestrian, in order to avoid the ice, passing along said sidewalk going to said Hanna Flats would have to leave the sidewalk at a certain drive about twelve feet east of the down spout on the southeastwardly end of said flats and pass into the street outside of the curb and travel about eighteen feet before returning to the sidewalk to enter the building. This accumulation of ice which made the sidewalk unsafe and dangerous was permitted to remain for about five days after the attention of the defendant’s manager was called to it and before plaintiff was injured 'by falling thereon.
“The attention of the defendant’s manager was called to this accumulation of ice which made the sidewalk unsafe and dangerous about five days immediately prior to the day of the plaintiff’s injury, but nothing was done to remedy said condition.
“When within a very short distance — ‘four or five steps’— or about ‘three feet’ of the Hanna Flats, the plaintiff slipped and fell on the accumulation of ice. She had gathered washings from the ‘Hanna’ for several years. She had passed over this sidewalk on the day before (Monday) several times. At the time of her injury observing the icy, uneven, rough, slippery condition of the sidewalk, she walked as best she could, being compelled to go after her work and being unable to stop. On Tuesday, the day of her fall, it was a little warmer than it had been, causing some thawing and a larger flow of water than on the preceding days. There was no other equally direct and convenient way to her destination open to plaintiff. She sustained, as a result of the fall, a very painful injury to her right knee and foot, rendering her prostrate, helpless and unable to walk. Also a painful, persistent swelling and inflammation and a fluid effusion in the bursa about the knee joint. A severe sprain and a tearing of the ligaments about the knee joint, a displacement of the two eartileges of the knee and a latent, quiescent, congenital, syphilitic taint in the blood was revived and rendered active and a necrosis of the head of the tibia ensued — rendering said plaintiff a helpless cripple, permanently incapacitated from using her right leg and from following her usual vocation.
“The defendant, the Block Realty Company, owned and was in possession and control of the building, the Hanna Flats, and maintained the down spout from which the water came, which frozen caused the said icy condition on the sidewalk on which plaintiff fell.
"Sections 670 and 241 of the building code of Cleveland, make it a misdemeanor, punishable by a fine and imprisonment to, in any case, permit the discharge of water from the roof of a building upon and across the sidewalk. ’ ’

The judgment complained of was entered after a motion by the plaintiff for a new trial had been made and overruled.

A single question, therefore, arises upon this record for our determination — having a proper regard for all that the testimony relevantly tends to prove, when brought to bear upon the issue-joined, and allowing for all proper inferences to be deduced from it, still was there anything fit to go to the jury in support of a verdict for the plaintiff? Whatever the trial judge may have remarked as to the controlling state of the law in Ohio upon which he took the case from the jury, the justification for doing so is to be found, if at all, in the admitted facts that the plaintiff came to her injuries from going into a place of danger plainly visible to her at the moment and which she might without difficulty have avoided. And this is no more than saying that her hurts were brought upon herself as the result of her own negligence causing or materially contributing to them.

And, if such is the rule, we think she fairly brought herself within its application, concretely, to her case. She testified that the icy condition of the sidewalk was plainly to be seen when she went upon it and was injured, and that it was so to her knowledge the day before, when also she had occasion to pass that way several times.

Such being the admitted fact, the case seems to be governed by Schaefler v. Sandusky, 33 Ohio St., 246, of which the syllabus is as follows:

"A person who voluntarily attempts to pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it, which he might easily avoid, can not be regarded as exercising ordinary prudence, and, therefore, can not maintain an action against the city to recover for injuries sustained by falling upon the ice, even if the city would otherwise have been liable.”

There is nothing more in the facts in the case at bar that should have sent it to the jury than there was in the one just cited. In that case the controlling facts were disclosed by the answers of the jury to certain special interrogatories sent to them, as follows:

“Q. Did plaintiff see and know the nature and character of this obstruction before and at the time of passing over it? And did he, knowing this, voluntarily pass over it ? A. He did.
‘ ‘ Q. Could he have easily avoided it, either on the same walk, in the street, or on the opposite side, or on any other sidewalk, and reach his destination? A. He could have avoided it.”

On these findings the court in that case rendered judgment for the defendant, although the general verdict was for the plaintiff. And the Supreme Court upheld the judgment.

Here, the same facts were established by the admissions of the plaintiff, a result certainly not less satisfactory than the findings of a jury.

The rule stated has been followed by the Supreme Court in Conneaut v. Naef, 54 Ohio St., 529, and in Norwalk v. Tuttle, 73 Ohio St., 242, as well as in numerous affirmed circuit court cases. It must, therefore, be regarded as the settled law of'the state in this respect, conclusive in the case before us, and properly applied by the trial court.

In the case at bar the negligence of the plaintiff, eontribuing to her injury, was so far the efficient cause of that injury that but for it she would not have been injured, and by the exercise of ordinary care for her own safety she could have avoided the injurious consequences of the initial negligence of the defendant company. See remarks of Williams, J., in Schweinfurth v. Railway, 60 Ohio St., 215, at p. 222, quoting with approval Thompson on Negligence to the effect we have just stated.

It is, however, claimed by the plaintiff that the doctrine has no application whore the circumstances are such that a jury might find from them that the conduct of the defendant in permitting the sidewalk to become covered with ice contrary to law should raise an inference of wantonness or wilfulness and bring that as a dominating issue of fact into the controversy. The contention at this point is that the unlawful negligence of the defendant amounted to a reckless disregard of the plaintiff’s right to a safe passage over the sidewalk, which made wilfulness the controlling ingredient of legal wrong and took the ordinary doctrine of contributory negligence as a decisive factor out of the case. Such is the argument, which is fortified by extensive citations of authorities.

This doctrine is shortly bnt completely stated in 7 Am. & Eng. Enc. Law, 443 (2d Ed.), thus:

“The doctrine of contributory negligence has no application in cases where the injury is inflicted by the wilful act or omission of the defendant; in such cases contributory negligence is not a defense and, in its legal sense, can not exist.
“Wilfulness and negligence are the opposites of each other, the one signifying the presence of intention or purpose, the other its absence.”

And in 1 Sherman & Redfield, Negligence, 64, it is said:

“It is universally conceded that the greatest contributory fault, including a wilful trespass, is no defense in an action for wilful injury.”

And it is contended that when the efficient cause of the injury —in this case an ice covered sidewalk — is brought about by the disobedience of an ordinance on the part of the defendant, wilfulness is thence to be imputed to it as a matter of law, conclusively, to the effect of cutting off the defense it might otherwise have of contributory negligence on the plaintiff’s part. At least, it is said, it was a question for the jury. An examination of the authorities brought forward to support this contention, leads us to the conclusion that the doctrine, applied to the ease in hand, is unsound. The rule seems to be limited to cases where the initial fault of placing himself in a place of peril was that of the plaintiff, and where the resulting injury arose from the defendant’s reckless and wanton act or omission— amounting in law to wilfulness — then first coming into the situation and bringing about the hurts complained of. Here, the failure to obey the ordinance did not come into the case as the direct cause of the injury, as an intervening agency primarily responsible for it; it was there in the first instance as a usual and ordinary manifestation of negligence, and the fact that it at the same time was a violation of an ordinance was a coindence and not an independent basis of recovery. Because the omission to obey the ordinance and the permitting of ice to accumulate in the first place were coincident but not different things, does not, as we think, introduce the rule of wilfulness in the case. The line of distinction seems nebulous at first glance, but it exists and is perceivable from an analysis of the cases cited in the briefs.

Upon the plaintiff’s testimony we think there was nothing to go to the jury and that the verdict was properly directed.

N'o error having intervened, the judgment complained of is affirmed.

Meals, J., and Carpenter, J., concur.