author: HULL, J. PARKER, J.,

text:
    INSURANCE — WAIVER.
    [Lucas (6th) Circuit Court,
    March 11, 1905.]
    Hull, Haynes and Parker, JJ.
    H. W. Billings v. National Insurance Co.
    1. Fire Insurance — Stipulation that Waiver op Condition of Policy, must be in Writing Strictly Construed — Filing of Proofs of Loss.
    A policy of fire insurance contained a stipulation that a written and sworn statement of the extent of the loss, etc., should he filed with the company insuring within sixty days after the loss occurred, and also that a change in, or a waiver of, any of the- terms of the policy could’ not be made Dy any officer, agent or other representative of the company unless such change or waiver be written on or attached to the policy itself. A loss under the policy occurred and the company sent its general agent, who had charge of all the local agents in the state, to examine the conditions of the loss with a view to adjustment. Acting on the words and conduct of this agent the insured delayed filing his proofs of loss- as required until more than sixty days had elapsed since the loss. In an action on the policy to recover for the loss in question it was held that the trial judge rightly directed the jury to return a verdict for the defendant at the close of the plaintiff’s testimony because it appeared that the proofs of loss had not been filed within the time stipulated and the stipulation of the policy for a written waiver was an essential part of the policy to which the insured assented by accepting the policy, and no agent could waive this condition of the policy as to filing proofs of loss, properly prepared, within the time specified, except in the manner stated in the policy. The doctrine of Travelers’ Ins. Co. v. Myers, 62 Ohio St. 529, applies equally as well to cases of fire insurance as to cases of employers’ liability insurance. — ■ Parker, J., dissents.
    2. That Waiver of Conditions in Policy of Fire Insurance must be in Writing Applies to what Occurs after the Loss.
    A provision in a policy of fire insurance that a waiver of any condition or stipulation thereof must be in writing applies as well to what occurs after a loss has been sustained, within the risk assumed by the policy, as to what may occur before the loss. — Parker, J., dissents.
    Error to Lucas common pleas court.
    Merrick & Jones, Doyle & Lewis and J. W. Schaufelberger, for plaintiff in error.
    J. L. Lincoln and O. B. Snider, for defendant in error.
   HULL, J.

This action was brought in the court of common pleas on two insurance policies, issued, one in 1902 and the other in 1903, on a certain store and its contents owned by Mr. Billings, and situated in the village of Whitehouse, this county. The amount of insurance was $400 on one policy and $1,000 on the other. The first occurred on July 1, 1903. The insurance company refused to pay the policies, on various'grounds, and among them on the ground that no written, sworn statement of the loss was filed with the company within sixty days after the fire, as required by the policies. There were other objections made by the insurance company; that an inventory had not been kept, as required' by the policies; that the “iron safe”- clause, as it is called, had been violated, etc., but it is not necessary to consider any question in this ease except the one of a failure to file a written and sworn statement of loss within sixty days. At the conclusion of plaintiff’s testimony, the court directed a verdict in favor of the insurance company, judgment was entered upon it and a petition in error was filed in this court to reverse that judgment.

As I have said, it is not necessary to consider the question as to the keeping of an inventory, or any other question but the one, as it seems to be conceded that there is some evidence in the record tending to show that these provisions of the policies were complied with.

It is claimed by the plaintiff in error that the provision in regard to the filing of a printed and sworn statement of loss within sixty days, was waived by the company through its agent and that, therefore, it ought not to prevent a recovery.

It appears from the testimony that immediately after the fire Mr. Billings notified a Mr. Meister, who was the local agent of the company at Swanton in this county; that Meister came to the scene of the fire the next day and saw what the loss was — the loss being well nigh total and exceeding the amount of insurance, and about $500 worth of property was saved. Mr. Meister, at the request of Mr. Billings, telegraphed to the company at their general office in Cincinnati, advising them of the fire on that same day or the next day, and he also, at Mr. Billings’ request, immediately notified the company by letter of the loss — the policies requiring an immediate written notice of the loss as well as a sworn statement sixty days later. Mr. Meister, hearing nothing from his communications, in a few days wrote again and received a letter from the company informing him that the matter had been left with a Mr. Meeks, who was the state adjuster of the company, and, according to the testimony, had general charge of the local agents in this state — he being a general agent.

About ten or fifteen days after the fire, the exact time is not stated, Mr. Meeks came to Whitehouse and met Mr. Billings and inquired about the fire. He inquired first as to whether Mr.,Billings had an inventory. Mr. Billings told him he had not, as he thought at that time it had been destroyed in the fire. He claims that this inventory was afterwards found. Mr. Billings testifies that Mr. Meeks thereupon threw up his hands: “He threw up his hands, of course,” he says, “when I told Mm this, ’ ’ and then says that he told him afterwards to get an invoice of his goods from the wholesale houses, as best he could. It is not claimed that there was enough here to constitute a denial of liability on the part of the company, that, under the authorities, would obviate the necessity of furnishing a sworn statement of loss afterwards.

Mr. Billings says that Mr. Meeks told him to get invoices from the wholesale houses and said to him, “that will take, probably about ten days.’- Mr. Billings says he understood from this that Mr. Meeks would return; and Mrs. Billings testifies that Mr. Meeks said to get these invoices for his inspection, and that he said that would take a week or ten days. They testify that they expected him to return; but he did not return. Meanwhile, Mr. Billings communicated with the local agent, Meister, at Swanton, in regard to the fire and had several talks with him and Meister wrote to the general office of the company, but received no answer to his communications. Billings got his invoices, so far as he could, from the wholesale houses and looked after the goods which were saved. I should say also, that when Meeks, the general agent, -was on the ground, he inquired about and examined the goods which had been saved from the fire and told Mr. Billings what to do with them, to preserve them, etc. And the time ran along until the time for the giving of written, sworn proof of loss had expired or was within one day of expiring. Thereupon Mr. Billings had such proofs prepared and transmitted them to the company.

The sworn statement did not reach the office of the company until . the,sixty-first or sixty-second day- — there is some dispute as to which it should be called — and was, therefore, out of rule according to the policy, that requiring the statement to be filed, as I have stated, within sixty days from the fire. I have undertaken to state the facts briefly as shown by the record. The company claims that under the faets, this policy is void; that the provision as to proofs has never been waived in the manner required by the policy and contract of insurance and that, therefore, it is not liable.

The policies contain this provision:

“This entire policy, unless otherwise provided by agreement endorsed thereon or added thereto, shall be void if the insured now has * • * -# or in case of loss, if sworn statement, in accordance with all the requirements of this policy, as hereinafter provided, shall not be rendered within sixty days after the fire. ’ ’
“If fire occurs the insured shall give, immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quality and cost of each article and the amount claimed thereon. * * * “And within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire. ’ ’

And then follow other provisions. And this is contained in the policy, at the end of these provisions:

“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall ■ any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

The policy, it is seen, provides in express terms, that no alteration shall be made in it unless made in‘writing, and none of its provisions shall be waived or held to have been waived by any agent or officer of the company unless such waiver is in writing indorsed upon the policy or attached thereto.

It is said that this provision requiring the waiver to be in writing, although stipulated for in the policy, may be waived by the general agent of the company, such as Mr. Meeks seems to have been, and that if so, it will be binding upon the company.

In the case of Stacy v. Insurance Co. 25 O. C. C. 67, we so held, under the circumstances of that case. ■ In that case, however, the agent whom we held had waived this condition, was appointed as a local- agent at Bowling Green, Ohio, but, under the circumstances, he being the only agent known to the insured in this country, the company being a foreign one, and the policy not having been delivered at the time of the fire, we held that he should be deemed to be and regarded as a general agent.

The principal office of the company was in England, and we held in that case, following some of the authorities, that a provision requiring a waiver to be written upon the policy, as this policy does, relates to the alterations or waivers that might be made during the life of the policy and before the loss occurred and that such provisions did not apply after the loss. That case went to the Supreme Court and that court reversed the ease, without report, so that we do not know the exact ground upon which it was reversed, but it is no longer authority in this court' or any other court.

The question here is, whether under the law, especially of this state, there was evidence tending to show that this provision as to a sworn statement of loss had been waived by the company, by a general agent such as Mr. Meeks was, in such a manner as to bind the company. There was no express waiver by Mr. Meeks; he did not say to Mr. Billings “you need not prepare your sworn statement” or “you need not file it;” but it is claimed that this conduct was such that Mr. Billings, as a reasonably prudent man, might consider it a waiver and had a right to assume that the company did not intend to insist upon this provision, the general agent having been sent to look after the affair — an adjuster of losses as he was — having been sent there by the company, and the evidence showing that Mr. Meeks was a state adjuster and general agent of the company having charge of all the local agents in the state. Mr. Billings appears to have acted entirely honestly and in good faith. Whether his attention had ever been called especially to this provision of the policies,. does not appear; but, having accepted the policies, he was, of course, bound by their conditions by accepting them and thereby beeoming a party to the contract.

After examining the authorities which were cited by counsel on both sides in this case, and some others (and a great many were cited in the briefs on both sides), a majority of the court have reached the conclusion that under the decisions of our Supreme Court, the action of the court belo^ was correct — was in accordance with the decisions of the Supreme Court. Whatever our own notions may have been in the case; whatever our own judgment was as to what the law was or should be,” we deem it our duty, as of course it is, to follow the decisions of the Supreme Court of our state.

There are many decisions in other states that sustain the contention of the plaintiff in error — the contention that a provision of this kind requiring that a waiver be in writing, does not apply to what occurs after the loss. This is held by many courts' and laid down in some textbooks, especially May on Insurance, which was cited in Stacy v. Insurance Co., supra, but, on the other hand, there are decisions of other states which hold the contrary, and we think our own Supreme Court hold and intend it to be the law of this state that a provision of this kind is to be regarded as an essential part of the contract and that it continues in force after the loss as well as before. It is a provision which the insurance company has a right to make — that there shall be no alteration or any waiver by any agent of the company unless it is in writing and indorsed upon the policy or attached to it. The parties have a right to make such a contract as that, and the insurance company has the right to insist upon it so as to remove this whole question as far as possible from the uncertain realm of oral testimony, and if a man accepts a policy with this a part of the contract, he is bound by it as well as by all the valid provisions of that contract.

Travelers’ Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760], is in point. This was not a fire insurance case, but the “Employer’s Liability Co.” for insuring employers against loss or damage by reason of an employe being injured. The policy required immediate notice to the company in case of an injury to an employe; which should be construed, the Supreme Court say, to be notice within a reasonable time. The court say it is very important for the company in such cases to have immediate notice of an injury, that they may inquire into it and find out whether it is within the policy, etc. And a fire insurance company may regard it important that they have a sworn statement w-ithin sixty days, setting forth the origin of the fire, so that it may be inquired into by the company. It may not be of as great importance as it is in an employer’s liability case, but it is clear that it is of very considerable importance. In the third paragraph of the. syllabus, the court say

“When such policy contains a stipulation that ‘no agent has authority to waive or alter anything in this policy contained,’, and the same is accepted by the insured, it is both notice to and an agreement by, the insured that an agent has no authority to waive or alter anything contained in the policy. Union Cent. Life Ins. Co. v. Hook, 62 Ohio St. 256, approved and followed.
“ ‘Immediate written notice’ in such stipulation means written notice within a reasonable time under the circumstances of the case; and where the facts are not disputed, what is a reasonable time is a question of law.”

Turning back to Eureka F. & M. Ins. Co. v. Baldwin, 62 Ohio St. 868 [57 N. E. Rep. 57], we find this, in the third paragraph of the syllabus :

“The power of an agent to waive conditions in a policy of fire insurance is not different from the same power in life insurance. As to such power, Union Cent. Life Ins. Co. v. Hook, 62 Ohio St. 256, is followed and approved.”

That is another ease in this volume. I have no recollection that these eases were cited to us in Stacy v. Insurance Co. supra, at Bowling Green. They are not mentioned in the opinion. On page 541 of the opinion by Judge Davis (Travelers’ Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760]), this is said:

“It was further expressly stipulated in the policy that ‘no agent has authority to waive or alter anything in this policy contained.’ The policy is not unilateral. Since the insured have received, accepted and retained the policy, they are parties to it, although not signing it, and are presumed to know and accept all of its terms and conditions. * * * The insured, having agreed that the stipulation as to notice could not be waived or altered by an agent, cannot excuse themselves for nonperformance of the contract as to notice to the company, by showing that they acted on the suggestion of the soliciting agent that they should not perform the contract as they had made it. In this conclusion we are sustained by numerous decisions in other states. * * *
“We are aware that there are decisions to the effect that conditions in respect to notice and proofs of loss may be waived by an agent, notwithstanding a provision that no agent can change the same. Those decisions are put upon the ground that such limitations on the authority ®f agents apply only to provisions relating solely to the formation and continuance of the policy, and which are essential to the binding force of the contract while it is running, and do not apply to conditions which are to be performed after the loss has occurred, such as giving notice and proof of loss. While we prefer to put the decision of this case on the grounds, and in line with, the decisions already stated, we think that we have made it sufficiently clear that the stipulation as to notice in this policy, is of the very substance of the contract in insurance, of the kind here contracted for, and therefore could not be waived by any agent. ’ ’

Referring to some of the decisions cited at the bottom of pdge 541, we can gather from them the doetrine that seems to be approved by the Supreme Court. The first of these cases which we will notice is Smith v. Insurance Co. 60 Vt. 682 [15 Atl. Rep. 353; 1 L. R. A. 216; 6 Am. St. Rep. 144], where, in the sixth paragraph of the syllabus, this is said:

“But a local agent, who never had been held out by the company as possessing any authority except to receive proposals for insurance, fix rates of premium and issue policies, has no power to waive the condition of a policy requiring a statement of loss; and there was error in the charge when the jury were at liberty to find a waiver from the declarations of either the local or general agent.

Then follows the seventh paragraph:

"But the general agent cannot waive the statement of loss in a manner other than that provided for in the policy; thus, he cannot give an oral consent to a waiver, when by the terms of the contract the waiver must be indorsed on the policy. ’ ’

This was a fire insurance case. On page 691 of the opinion, this is said:

"Having held that Turner had authority to waive any condition of the policy, the question remains whether he could do so, save in the manner provided by the contract. One condition of the policy is that no officer, agent or representative of the company should be held to have waived any of the conditions of the policy unless such waiver was indorsed on the policy. This provision was a valid one, binding upon the parties, and effect should be given to it. While the defendant could give its oral consent to a waiver of the statement, no officer, agent or representative could consent unless the consent was indorsed on the policy.’ This point we think well taken.”

That is one of the cases cited with approval by Judge Davis in Travelers’ Ins. Co. v. Myers, supra, and approved by the court, as we understand it. According to that case, although Mr. Meeks was a general agent, yet, as such officer or agent, he could not waive this provision of the policy unless it was done in writing as required by the policy. In the case at bar it is not claimed that the waiver- was in writing, and the only claim is that Billings had the right to believe and did believe, from the conduct of Mr. Meeks, that this provision was waived.

Another case cited in this opinion is Kirkman v. Insurance Co. 90 Iowa 457 [57 N. W. Rep. 952; 48 Am. St. Rep. 454], There are other cases from Iowa, and there is one more recent than this, that seems to hold, perhaps, a different rule from this case, but we are only citing these cases that were approved by the Supreme Court. It is held in this ease that:

"Under a policy making it an express condition that none of its provisions could be waived, except in writing by the secretary, an adjuster cannot orally waive proof of loss required by the policy.”

There was some correspondence in this case with the president of the company, and the insured sent for a copy of the policy, which was sent to him. The court say, on page 458:

"The claim of waiver of proofs of loss is based upon the acts of the officers and agents of the company by which the plaintiff was induced to believe that no proofs of loss were required. There is nothing in the evidence by which any waiver could be inferred, founded upon the acts or declarations of the agent, Mullen. ’ ’

Another ease cited in this opinion is, Gould v. Insurance Co. 90 Mich. 302 [51 N. W. Rep. 455]. There the court say, in the syllabus:

“A failure to furnish proofs of loss within the time required by an insurance, policy bars an action thereon, unless waived, where the policy further provides that such failure shall work a forfeiture of such right of action. ’ ’
“A verbal waiver of such condition by an agent of the company will not prevent such forfeiture, where the policy plainly provides upon its face that no agent shall have power to waive any of its conditions except by writing endorsed on or attached to the policy.”

Walsh v. Insurance Co. 73 N. Y. 5, is also cited. The court there say, on page 10 of the opinion:

“The doctrine is established to prevent fraud, and proceeds also upon the ground that when one of two innocent persons must suffer from the act of a third person, he shall sustain the loss who has enabled the third persoft to do the injury. If, however, a person dealing with an agent knows that he is acting under a circumscribed and limited authority, and that his act is in excess of or an abuse of the authority actually conferred, then manifestly the principal is not bound, and it is immaterial whether the agent is a general or a special one. ’ ’

Referring to the power of the agent to waive unless in writing.

There are other cases cited, but I will not refer to them; they will be found in the opinion of Judge Davis. In that ease the court says there are cases which hold the other way; but that they prefer to follow these, and they are thus made practically a part of this opinion and are approved by the Supreme Court.

It seems like a hardship upon Mr. Billings to lose his insurance upon this account; but if the contract which was made was valid, if the failure on his part to comply with it works a forfeiture under the law of this state, this court is unable to help him. There is force in the contention that where a company has sent its general agent to adjust a loss and look into it, that it should be held to be a waiver of a written and sworn statement of loss; that would seem to be an equitable doctrine; but the cases decided by and approved of by the Supreme Court seem to hold that such a provision is an essential part of the contract; that it cannot be waived in any other way than that approved by the policy, so that there may be no question, no dispute, nothing to be proved by oral testimony, no alleged verbal statements to be met upon this question of waiver, which it is provided shall be shown only in writing. It is said that the time had only gone a day or two beyond the time provided for in the policy. That is true, but, if the condition is to apply at all, it must apply in the words of the policy — sixty days — and if sixty-one days might be approved, then seventy days might be and it would be difficult to draw the line.

There is no statutory provision on this question, no provision that if the company has not been prejudiced by the failure of the insured to transmit a sworn statement of loss within the time that this shall not be a bar or forfeit the policy. A very full opinion was delivered by the trial judge (Judge Morris), in deciding this question, in which he has gathered many authorities — many more than we have cited — which opinion will be found in Billings v. Insurance Co. 14 Dec. 387. We are unable to see how, under these decisions to which I have referred, he could have-decided the question otherwise. As was said by Judge Morris, we sympathize with Mr. Billings in his loss, but it is our duty to follow the law as we understand it to be.

The judgment of the court of common pleas is affirmed.

PARKER, J.,

dissenting.

I find myself unable to bring my mind into agreement with the decision of a majority of this court in this ease. I do not believe that the rule which has been laid down here by them will be conducive to the attainment of the ends of justice. Neither do I think that it is in harmony with the expressions of our Supreme Court upon the subject, unless, perhaps with some of the language of Judge Davis in the opinion in Travelers’ Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760], referred to by Judge Hull; and I am of the opinion that more weight is given by my colleagues to certain expressions of Judge Davis and to certain facts in that case, and less weight to others, than should be given to them.

If it were possible for this general agent, by his conduct, to waive the formal proofs of loss, then we are agreed that there was testimony tending to show such a waiver. Unless the whole matter is concluded by this provision of the policy, as to the proofs of loss, so that no consideration may be given to such evidence the case should have gone to the jury.

In looking into the facts of the case we find that the evidence of waiver was not very strong; but there was some oral evidence — enough my associates have, very properly, met the question squarely; they have not undertaken to avoid it by laying any stress upon the fact that a strong ease of waiver was not made out; for they ap* predate, as we all must, that if this rule is to be laid down and followed, it must be applied where there is strong oral evidence of waiver as well as where such evidence of waiver is slight.

I cannot see how the courts can avoid following it if it is established as a rule of law, even where the conduct of the agent, which ordinarily would amount to an estoppel in pais, is so pronounced as that to not apply the doctrine of estoppel would operate as a gross fraud upon the insured. For instance, a general agent may come upon the ground — ■ even the president of the company, according to the claims of counsel for the insurance company here — see the ashes of the fire and be satisfied that a fire has occurred; investigate the evidences of the loss and be satisfied that the loss claimed has occurred, and that the loss is great enough so that the company is liable, if at all, for the whole amount of insurance; he may be satisfied that the loss is entirely honest so far as the insured is concerned; that there is no valid reason on moral or legal grounds for resisting payment of the loss under the policy; he may say so to the insured; he may say to him, “It is not worth while to make out proofs of loss in this case, it is perfectly clear that you are entitled to your money;” he might lull the insured into security by such conduct and declarations and keep it up until the very last hour of the sixty days, and then turn his back upon him and snap his fingers at him and say, “we will not pay you because you have not made formal proofs of loss.” Now that, as I view it, might result from establishing this rule; it could be used in that unfair way by an insurance company; and I think it is not out of place to say that the experience of business men is such as to justify the suspicion, at least, that there are some insurance companies doing business in the country that would be glad to take unfair advantage of such a rule; and therefore I say that I do not believe that the adoption of such a rule would be conducive to the attainment of the ends of justice.

I agree with my associates that under the authorities, even in Ohio, a denial of liability on other grounds than that of lack of proofs of loss, by the general agent of an insurance company, amounts to a waiver of proofs of loss. I understand that that is distinctly held in the case of Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35 [35 Am. Rep. 589], and though we have found by experience that it is not safe to place much reliance upon unreported cases, or upon the deductions of counsel, or of publishers of unofficial reports thereof, as to what has been decided by the courts, yet it seems from the report of the case, Ohio Farmers’ Ins. Co. v. Danison, 1 O. S. C. D. 653 (38 Bull. 163), a case not reported by authority of the Supreme Court, but reported by the Bulletin upon its own responsibility, that the same thing was held there, and held, as I understand it, because of the denial of liability on some other ground, before proofs of loss were due; the company through its general agent, having said to the insured, in effect, “it would be idle and useless for you to make up a proof of loss in this case, we will not pay the policy in any event. ’ ’ But, if that is still the law, what becomes of the provision in the policy that the proofs of loss cannot be waived except by agreement indorsed upon the policy? Such denial of liability of itself amounts to a waiver by conduct of proofs of loss. If there is to be any exception to or qualification of this provision of the policy, why not an exception in a case such as I have instanced, where the insured is given to understand up to the very last moment that the right to recover will not be questioned and then is disappointed when it is too late to correct the matter?

The case of Travelers’ Ins. Co. v. Myers, supra, is, it seems to me, very different from this, and does not amount to a precedent to be followed here; and for my part, in the establishment of such a rule as that applied by my associates, I am unwilling to go one step in advance of what the Supreme Court has distinctly held.

The case last referred to was one of insurance by an employer against liability and loss on account of injuries which might be sustained by employes. It appears that an accident happened to an employe and that no notice of the fact was conveyed to the company for some nine months after the accident occurred, whereas the policy required that “Immediate written notice shall be given this company of any accident and of all alleged injuries, together with copies of all statements made by employes, and all other information in possession or knowledge of the insured in any way relating to such accident or liability therefor.” And Judge Davis points ont why it is material in a case of that kind that the insurance company should have this information at the earliest possible moment, so that it may investigate the matter before it has faded from the minds of the witnesses, before the aspect of the whole matter is changed, while the insured is still suffering from his injury or accident, so that it may ascertain the extent of his injury, and especially so that it may ascertain whether or not there is a liability. Myers & Co. undertook to excuse themselves from furnishing this information on the ground that the local soliciting agent had advised them against doing it; had advised them to keep silent; had said to them that if they stirred the matter up the injured man might conceive that he had a cause of action and bring a suit against them, and that he might not do so if they kept still and allowed the matter to blow over.

In the course of his opinion Judge Davis emphasizes the fact that the agent was merely the soliciting agent, and the fact that what he is saying is applicable to that particular form of insurance. It seems to me that he carefully seeks to avoid having such a conclusion drawn from his utterances as is drawn therefrom by my associates. He endeavors to confine what he says to the particular kind of insurance under consideration there. What he, or the court, may have said if this had been done by a general agent, we can only surmise. What the court may have said if some general officer of the company had been upon the ground, had seen the accident, investigated all the facts, become satisfied that there was a liability and had said so — had said: “You need not furnish the information, we are already fully informed,” we can only surmise. .

It can hardly be inferred that under circumstances like those the court would have said that the company might still insist upon the formal evidence required under the written terms of the policy. But, that was not a fire insurance case to begin with. Much of what the learned judge says with reference to the materiality of these proofs, to put the insurance company in a fair position to protect itself, it seems to me has no application to fire insurance generally, and has no applb cation to a ease where a fire insurance company has become fully satisfied as to the facts and has so declared, without the formal proofs being presented.

It appears to me that the conclusions of my associates are in opposition to a rule that has been well established by the courts and recognized by the leading text writers: i. e., that a provision like the one here relied upon shall not be applied to stipulations touching acts to be performed after loss. This rule, and the doctrine of estoppel in pais as applied to this subject, are found in the books running at times in parallel lines and at times converging, and I shall read some authorities applicable to both phases of the subject.

I will read first a few paragraphs from Bishop on Contracts. Taking up in this small book the whole subject of contracts, of course Mr. Bishop was obliged to treat these principles with great brevity, but, under the head of Waiver, at page 308, Secs. 790 and 791, he has this to say, in part ;

“Waiver, equally with its counterpart, election, pervades nearly or absolutely every department of the law and judicial practice, civil and criminal. # * #
“The doctrine rests on one, or another, or on all in combination, of the following three principles, as the special facts and nature of the particular ease indicates; namely the principle of contract by mutual consent of the wills, the principle of contract created by law, and the principle of estoppel.”

Then going to See. 796:

“The principle on which, in various circumstances, a performance in time or manner differing from the stipulations which are waived, is accorded the same effect as a literal performance, is evidently that of estoppel. A party who, standing by, has concurred in and accepted what the other did in fulfillment, is not in a position to deny that the contract has been fulfilled. To illustrate,—
“'A policy of insurance specifies the time and manner of notifying the insurer of a loss, and proving it. But if, after the loss, the proper officer of the insurance company, instead of standing upon his right to have such notification and proof, goes upon the ground and agrees with the insured as to the valuation, the transaction constitutes a waiver, by the company, of the steps set down in the policy. And so does anything else of a similar sort. If, where the insurer has thus waived the steps, leaving the insured to believe them not required, the former could insist on being released from payment because they were not taken, he would have misled the latter to his great detriment, — exactly what the doctrine of equitable estoppel was introduced into the law to prevent.”

Now independently of any other consideration, and looking upon this simply as a question of estoppel, a ease where the law says, “You shall be held to have waived, and shall not be heard to deny that you have waived, because of your conduct in the premises,” it seems to me that it would be against public policy, and that therefore it would not be competent or permissible, for an insurance company to provide in its policies that it will not be bound by the equitable rules of estoppel; to say “We will not be affected by anything our general officers or general agents may do that might operate upon us as an estoppel in pais.” In my judgment stronger reasons may be adduced for holding such a provision void because opposed to public policy than those supporting the doctrine that a provision in a contract of a common carrier that it shall not be liable for lossess occurring through its own negligence, are invalid. While the company may stipulate that it will not be bound by any agreement unless it is reduced to writing, such stipulation should be qualified to the extent required to give full effect to the equitable doctrine of estoppel in pais. Without opportunity to search the books extensively for authority in support of this doctrine, enough has been found to show that it is not without support.

In 1 Joyce, Insurance Sec. 579, we read:

“It is held that a condition in the policy which conflicts directly with a settled rule of law will not be allowed to bind the assured, although he accept the policy, unless it appears that his attention was specially called thereto.”

The reference to authority for this statement appears to be Norman Pitney v. Insurance Co. 61 Barb. (N. Y.) 335, and from the opinion in that ease we extract the following:

“The defendant further resisted the plaintiff’s right to recover, upon the ground that the preliminary proofs of- loss were not as complete as the policy required. In the conditions of insurance it was provided that no act or omission of the company, or any of its officers or agents, should be deemed a waiver of a full and strict compliance with the requirements made concerning such proofs, except it be by a waiver in express terms, in writing, signed by the president or secretary of the company. This provision is directly in. conflict with the settled rules of law established for the government of this class of cases. And while there is no doubt but that a party may renounce the benefit of settled legal rules existing in his favor, yet before he should be held to have done so, something clearly evincing that to have been his purpose should be required to be affirmatively or positively shown. The acceptance of a policy of insurance containing a clause declaring that no act or omission of the insurers, their officers or agents, shall be deemed a waiver of compliance with requirements as to preliminary proofs of loss, unless it be by a waiver, in express terms, in writing, signed, etc., to which there is no evidence that the attention of the insured was ever in any manner directed, should never be permitted to produce such a result. The policy of the law stands directly in the way of allowing persons to be entrapped into the implied surrender of their well established legal rights by the success of any such ingenious device. If it should be allowed to prevail, the insurer would be secured a privilege which could be so used as to defeat all its undertakings, and legally .protect a career of fraud never yet sanctioned by either law or good morals.
“But in this case the insured, in the preliminary proofs furnished, expressly offered to supply ‘any other information that might be required,’ on call. Notwithstanding the'provision that the waiver of defects in the proofs must be in writing, it was still in the power of the company to waive that requirement. And by not responding to this offer while the defects could have been corrected and supplied, it should be held to have made that waiver. For, good faith, as well as every consideration of fair dealing, required it to specify the defects in the proofs when they were accompanied with this offer, if the company did not intend to waive any further act in that respect, on the part of the insured. (O’Niel v. Buffalo Fire Ins. Co. 3 N. Y. 122. Post v. Aetna Ins. Co. 43 Barb. 352.) The objections to these proofs came too late, and were properly overruled at the trial.”

I read from May, Insurance (3 ed.) Sec. 473d, published in 1891:

“A clause to the effect that no act of the company, except an express written declaration, shall waive the requirements in regard to proofs, will not prevent the company from estopping itself, by act in pais. So far as the clause is intended to have such effect it -is void, for a man cannot contract not to make an agreement that the law allows him to make with the covenantee. A provision in the policy that no condition shall be waived or annulled except by indorsement upon it, will not prevent the waiver of proofs of loss if the insurer without objecting to their absence joins in proceedings for adjustment. In spite of such a condition the agent may have authority to orally waive proof of loss, and the question should go to the jury. Such a provision is held not to refer to stipulations to be performed after loss, such as' giving notice and proof. ’ ’

I also read a part of Sec. 311 — under the head “Waiver; stipulation against, limitation of agent’s authority.”

“A clause in a policy of insurance that ‘nothing but a distinct specific agreement, clearly expressed and indorsed on the policy, shall operate as a waiver of any printed-or written condition, warranty, or restriction thereon,’ refers to those conditions and provisions of the policy which enter into and form a part of the contract of insurance, and are essential to make it a binding contract between the parties, and which are properly designated as conditions, and not to those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing preliminary proof of the loss.”

Now Judge Davis' says, in the course of his opinion before mentioned, that there is a line of decisions to this effect. A great many decisions to this effect are cited under the sections that I have read from May on Insurance. Others are cited by counsel for plaintiff in error. I cannot attempt to refer to or read from them without extending this opinion to too great length, but it seems to me that they lay down and establish a general rule, and that the few decisions cited from Vermont, Michigan and New York, that seem to adopt a different rule, are singular and out of line with the current of authorities; and while Judge Davis has expressed some satisfaction with these decisions, I do not understand that he attempted to adopt them on behalf of our Supreme Court to the full extent that they go. I understand that a fait way of considering what he said and the use he has made of them is to say that, insofar as they are necessary to sustain his opinion in this case, he adopts them; and so far as they are necessary to sustain the opinion of the court in that ease, we need not combat them, for that was a case of a mere soliciting agent, and of a different form of insurance and a different state of facts.

In the case of Ohio Farmers’ Ins. Co. v. Wilson, 70 Ohio St. 354, 362 [71 N. E. Rep. 715], Judge Davis lays down a rule for interpreting decisions that may well be applied to his opinion in Travelers’ Ins. Co. v. Myers, supra, when he says, in substance, that it is the syllabus alone for which the concurring judges are responsible, and that the syllabus must be interpreted in the light of the particular facts and circumstances of the case.

There is one authority containing language that seems to. me to be very appropriate here. It is the case of McNally v. Insurance Co. 137 N. Y. 389 [33 N. E. Rep. 475]. I will read from page 398:

“In determining the liability of the defendant it is entitled to the benefit of its contract fairly construed and can stand upon all of its stipulations. But when its liability has become fixed by the capital fact of a loss, within the range of the responsibility assumed in the contract, courts are reluctant to deprive the insured of the benefit of that liability by any narrow or technical construction of the conditions and stipulations which prescribe the formal requisites by means of which this accrued right is to be made available for his indemnification. If in this case, a right of action accrued to the plaintiff, by reason of the destruction of the property by fire on June 7, 1885, a liberal and reasonable construction of the stipulations of the contract which prescribe the formal acts on the part of the insured necessary to the recovery of the loss, is sanctioned and required by the rules of law.”

And there are a large number of eases here cited. Obviously there is a great difference between the provisions in the contract which have reference to risks assumed by the insurer, which are put in for the protection of the insurer so that the risk may not be increased without its knowledge, so that it may know and be advised all along as to the extent of its undertaking, so that there may not be binding oral stipulations upon that subject between the agents and the insured, and such provisions as apply to measures to be taken after the liability is fixed, after the fire has occurred. To the performance of these conditions subsequent, these things that are to be done in the way of furnishing the evidence of loss, it seems to me that the authorities require that very different rules shall be applied from those applicable to conditions of the other class, and that the courts have almost universally applied to these conditions subsequent rules that are calculated to preserve to the insured the right that has ripened into a just claim to pecuniary indemnification and that they may continue to do so without doing any injustice to the insurer whose liability has become fixed by the occurrence of the loss.


source: Caselaw Access Project

author: VOORHEES, J.

license: Public Domain

text:
    BLOODHOUNDS — CRIMINAL LAW.
    [Stark (5th) Circuit Court,
    February Term, 1904.]
    Voorhees, Donahue and McCarty, JJ.
    Harrison Baum v. State of Ohio.
    1. Evidence — Contradictory Statements may be Explained by Witness— Effect of Such Statements.
    It is not error to permit a witness, who has made statements out ol court at variance with his testimony given in the trial of a cause, to explain or give his reasons, if he has any, for making the contradictory statements; such conflict in statement goes only to affect his credit, and does not render him incompetent or necessarily render his testimony incredible.
    2. Same — Court Stenographer may Impeach Witness, when.
    Where it is claimed a witness, who testified before a grand jury, changed his testimony on the trial, an official court stenographer, who took his testimony before the grand jury, in shorthand, may, as impeaching such witness, read his notes in evidence to the jury, if he remembers and can testify that at the time it was correctly taken, and that the notes contain all the evidence of the witness on the question at variance, although at the time he is called to testify, he has no independent recollection of his testimony.
    3. Same — Testimony as to Trailing by Bloodhounds, when Competent.
    Testimony as to trailing an alleged criminal by a bloodhound may be permitted to go to the jury as tending to connect him with the crime when there is testimony of some person, who has knowledge, that the dog used has been trained to follow tracks of human beings by scent, and its power of so discriminating has been tested as to its accuracy in trailing on one or more occasions.
    4. Same — Same.
    Before evidence of the trailing of an alleged criminal is rendered competent it must be first shown that the dog was put on a trail at a point where the circumstances tend to show that the guilty person had been, or on a track which such circumstances indicate to have been made by him.
    5. Same — Same—Character of such Testimony and how to be Considered by Jury.
    Evidence of the acts of bloodhounds in following a trail under conditions stated may be received as cumulative or corroborative evidence against the person toward whom other circumstances point as being guilty of the commission of the crime charged, and when this class of evidence is hedged about with these safeguards of human and other testimony, bloodhound evidence is' no more dangerous than any other class of circumstantial evidence.
    6. Failure to Charge on a Point when not Requested is not Error.
    Court failing to charge oq a point on which counsel did not ask a charge is not error.
    7. Evidence — In Criminal Case, Effect to be Given Testimony of Good Character of Accused, wiiat. '
    In a criminal case for assault with intent to kill, where the defendant put in evidence of his previous good character, it is not error for the court to say to the jury, that, “The weight to be given to the good character of the defendant for peace and quiet must be such that the jury, under all the circumstances, think it should receive.”
    Error to Stark common pleas court.
    Shields & Pomerene, for plaintiff in error.
    R. H. Day, for defendant in error.
   VOORHEES, J.

Plaintiff in error was indicted under Lan. R. L. 10420 (R. S. 6820), for shooting with intent to kill one Marion Fraze. He was tried and convicted under said indictment in the court of common pleas, and sentenced to the penitentiary for a term of twenty years. Error is prosecuted to this court, and among the errors assigned and especially urged as grounds for reversal are:

(1) That the court erred in the admission of evidence; (2) that the court erred in the exclusion of evidence; (3) that the court erred in its charge to the jury; and, (4) that the verdict is against the weight of the evidence.

1. As to the admission of evidence. It is contended that the court erred in permitting a witness for the state, Mrs. Fraze, to explain and give her reasons for making statements out of court at variance with her testimony given on the trial. It is competent and proper for a witness to explain his. or her conduct or testimony which tends to affect the credibility of the witness. Where a witness is shown to have made contradictory or even false statements, which from their nature might have been prompted by an innocent motive, or a sinister one, it is for the jury and not for the court to say, from all the circumstances, to which motive it should be attributed.

If it were made to appear in the trial of a cause, civil or criminal, that a witness out of court has stated something material to the issue that was untrue, and he knew it to be untrue, no matter what explanation he should make in justification for his untrue statement, it necessarily tends to weaken or detract from the credibility or weight to be given his testimony; bnt it is entirely with the jury to say how much, as it only affects his credit, and does not render him incompetent or necessarily render his testimony incredible. Brown v. State, 18 Ohio St. 496.

We think the court did not err in permitting Mrs. Fraze to give her reasons for making these contradictory statements.

2. Was it error to admit the evidence of the witness Fred Marpe?

Marpe was one of the official -stenographers of the court, and as such, was present with the grand jury and took notes in shorthand of the testimony of witnesses heard by the grand jury in the investigation of the crime for which defendant in error was indicted, tried and convicted.

The purpose of the testimony of Marpe was to show that certain witnesses for the defense on the trial in common pleas court, gave testimony at variance with what they had testified before the grand jury. Marpe, as the official stenographer, took the testimony of these witnesses in shorthand as given by them before the grand jury. It was contended by the state, that these witnesses on the final trial had changed their testimony in material parts, and to prove such variance, the stenographer was called and produced his notes, taken by him, of their testimony before the grand jury. The record shows that the witness had his notes before him; that he looked at them, evidently read them before he testified; he did not read the notes in evidence; but testified from memory, refreshed by the examination of the notes taken by him before the grand jury. The fact that this witness happened to be the official stenographer of the court has nothing to do with the admissibility of his evidence. Any person who had heard the witness testify might have been called and examined upon the particular question as was the witness Marpe. His evidence comes under the well-known rule of evidence for the contradiction of a witness by showing he has made statements out of court, or given evidence on a former trial or hearing, whether under oath or not under oath. But being the official stenographer, after testifying that he then knew that at the time of the former hearing he had taken accurate notes of the testimony sought to be provén, he might read the notes in evidence, although he was not able by refreshing his memory from the notes to testify from memory- or say he knew and remembered the evidence then given.

Where it is claimed a witness,' who testified upon a former trial, has changed his testimony, and the official stenographer, who took the testimony at the former trial, produces his motes in shorthand of the testimony of the witness, such stenographer may read his notes to the jury as affecting the testimony of the witness, if he remembers that at the time the testimony was given it was carefully taken and that the notes contained all the testimony of such witness, although at the time he is called to testify he has no independent recollection of what the witness did testify. Underhill, Evidence 171; 1 Rice, Evidence 399; Bennett v. Insurance Co. 39 Minn. 254 [39 N. W. Rep. 488]; 2 Rice, Evidence 658.

There was no error in admitting the evidence of the witness, Marpe.

3. The next error complained of is more difficult than the two just considered; that is, in the admission of evidence showing the conduct of bloodhounds that were used in tracking the supposed perpetrator of the crime. This raises a question of evidence that is practically unsettled in this state; and there is no authority of the court of last resort in Ohio upon the question. In the case of the State v. Houck, in Knox county (not reported), such evidence was received and came up to this court on error, but the court was not required to pass upon its competency as the judgment of the court below was affirmed proforma, without considering this particular question. We have carefully considered the able opinion of Judge Van Pelt in the case of State v. Hall, 4 Dec. 147 (3 N. P. 125), and we are inclined to adopt the reasons there given for the admission of such evidence, rather than that of Judge Sullivan against it, found in t]ie ease of Brott v. State, 97 N. W. Rep. 593 (Neb.). It must be conceded that there are some strong reasons given in the Nebraska case against the admission of such evidence. We do not hesitate in holding, however, that the receiving of such evidence violates no constitutional rights of an accused party.

The admissibility of the evidence depends upon the preliminary proof of persons familiar with the habits, instincts and faculties of these animals; what they have done, and can do in following a trail made by a human being up to the person, or abode, of the one making or leaving the trail and scent behind him. If it were shown that such animals can exhibit such instinct and have such faculty in this regard with any degree of accuracy, then its conduct in a given case may be admitted in evidence. Its effect and weight are to be left to the jury.

From a careful examination of the authorities to which we have had access, Hodge v. State, 98 Ala. 10 [13 So. Rep. 385; 39 Am. St. Rep. 17]; Pedigo v. Commonwealth, 103 Ky. 41 [44 S. W. Rep. 143; 42 L. R. A. 432; 82 Am. St. Rep. 566]; Simpson v. State, 111 Ala. 6 [20 So. Rep. 572]; State v. Moore, 129 N. C. 494 [39 S. E. Rep. 626; 55 L. R. A. 96], the rule for admitting this class of evidence may be summarized as follows:

First. The bloodhound in question must be shown to have been trained to follow human beings by their tracks and scent, and to have been tested as to its accuracy in trailing on one or more occasions.

Second. The evidence of the acts of bloodhounds in following a trial may be received merely as cumulative or corroberative evidence against the person toward whom other circumstances point as being guilty of the commission of the crime charged.

The admission of this class of evidence is therefore hedged about with abundant safeguards in the way of other, and human testimony, and as long as these rules are adhered to, bloodhound evidence is no more dangerous than any other class of circumstantial evidence.

There was no claim made by the state in this case that the evidence as to the actions of the bloodhounds in trailing the footprints appearing at the scene of the crime to the home of the defendant was conclusive, but as a circumstance to be taken by the jury in connection with the other facts and circumstances in the case.

Like ail other evidence in human affairs there is an infirmity about it. But if it must be excluded upon that ground, then it would be impossible to furnish any evidence except direct evidence in a trial of any cause; and even direct evidence would be open to the same objection because there is that infirmity of memory, bias and prejudice of witnesses, if not at times, actual dishonesty. So we think all the arguments urged' for the exclusion of this class of evidence might be offered against any evidence. We are again brought to the question whether or not it has any probative force, and taking the evidence in this record as to the breeding, the training, and the conduct of these dogs, we are of the opinion that the evidence was properly admitted and its weight left to the jury. We are hopeful that this question will soon be settled by our Supreme Court. We consider it of great importance in the administration of the criminal laws of the state. Our conclusion is, that the admission of this evidence was not prejudicial error.

4. The only question made or error complained of in excluding evidence, is the exclusion of the record of a case pending between Marion Fraze, the prosecuting witness, and one Thomas Beans. The questions in this case are of a character that it was proper for the defense to show that there were others, besides the accused, who were on unfriendly terms with Fraze; others who might have had motives, engendered by anger, hatred, or ill-will, to do him violence, and it was proper to show that he had been involved and was, at the time of the commission of this assault upon him, in litigation with others; but we do not consider that it would have been proper to introduce in evidence the record of these suits. It was sufficient to show that there were controversies between him and others. There was no error in excluding such records.

5. There are objections urged against the charge of the court, in this: That the charge did not cover or touch upon certain conditions in the evidence. The record does not show that there was any special ■request to charge touching these various points.

In the absence of such special request, it was not error not to charge further in relation to them than was given in the general charge. The only consideration we might give to these contentions would be in reviewing the record as to the weight of the evidence. It might become important in determining whether or not the questions of fact were disposed of under a fair and proper charge, a charge full enough to enable the jury to grasp the issues and controversies in the case, and we have so considered these objections, and find no error in the court in omitting to charge further in the absence of special request so to do.

6. It is contended that the court erred in its charge, in reference to evidence offered by the defendant of his good character. On page 754 of the record the court states:

‘ ‘ The weight to be given to the good character of the defendant for peace and quiet must be such that the jury under all the 'circumstances think it should receive.”

The charge is supported and in line with the holding in Harrington v. State, 19 Ohio St. 264. Judge White, on page 269, quotes with approval the following rule:

“That the testimony is to go to the jury, and be considered by them in connection with all the other facts and circumstances-; and if. they believe the accused to be guilty, they must so find, notwithstanding his good character.”

Taking the charge as a whole, the defendant’s rights were guarded and protected in every paragraph, and the care and caution the jury were directed to exercise were fully impressed upon the mind of the jury, as well as the certainty required as to the defendant’s guilt before they could find him guilty. We find no error in the charge.

7. Coming now to the consideration of the weight of the evidence. At the threshold we are confronted with the well-settled rule of law, that it is not the province of a reviewing court to disturb the verdict of the jury simply because the court might not have found as did the jury upon the issue of facts. Looking through this whole record we cannot say that the verdict is against the manifest weight of the evidence. Aside from the question of the trailing of the dogs, there is an abundance of testimony tending to prove the guilt of the defendant. If the evidence were true, it certainly justified the verdict of guilty.

Much of the evidence in this case is circumstantial. It may be said in' some instances, that such evidence is not so satisfactory as direct proof. On the other hand sometimes circumstances are more convincing than direct evidence, for the reason that the bias, prejudice and untruthfulness of witnesses may leave more doubt in the mind of the jury as to its reliability than would positive circumstances inconsistent with any other theory, than the theory of the defendant’s guilt.

As in this case, the circumstances of the tracks of a person approaching the window of the prosecuting witness’s house, through which the shot was fired, are -significant; as they approach the window, as shown by the footprints, they were ordinary strides of a person walking and the same identical tracks leaving the window were strides made by a person running, as shown by the length and depth in the soft earth. These are strong circumstances tending to establish the fact that the person making these tracks was the guilty party. A number of witnesses testified that these footprints coincided with the “gum” boots of the -defendant and were identical with tracks made by these boots. The peculiar characteristic, such as the “heel tap” on the defendant’s boots, appeared and was shown by the tracks approaching and leaving the house' as before stated. There was also evidence showing that the defendant, on occasions other than the occasion when the shooting was done, had been seen in the night season prowling about the Fraze house and committing depredations and menacing the peace and quiet of that home. All of which tended to show that he had a fixed purpose of committing some violence upon Fraze’s person. Thi^ evidence of course was disputed by the defendant, yet the jury had the right to believe it and no doubt did believe it to be true.

The shotgun in evidence furnished some additional circumstances that the crime was committed with a similar weapon. Witnesses familiar with guns examined the gun in question shortly after the shooting and testified that one barrel had recently been discharged. The father, of the defendant testified that the last time the gun, a double barreled shotgun, had been fired was two or three days before the alleged shooting of Fraze, and then only one barrel was used. If he was correct in this, the gun barrel so used would have been dry and would have shown no indication of having been recently discharged, as did the barrel examined by the witnesses the morning after the shooting of Fraze the night before.

The conduct of the defendant when the officers came to his home the night the crime was committed is significant. A person who was present said that Marion Fraze had been shot; defendant answered, “That is what you want me for.” No one had up to this time accused him. That he should accuse himself, if innocent, is a circumstance against him. It has frequently been remarked, and is the experience of mankind, that a person, who is' the depository of a fatal secret, which he is anxious to conceal, is likely to give expression by word or act of something touching the secret; as if the mind were anxious to unburden itself by giving out its workings as far as it could with safety. True, if he had said this after some one had spoken about Marion Fraze having been shot and that he was suspected or charged with it, the remark, “That is what you want me for,” would have much less force, as a circumstance pointing to him as the guilty party; but that he made-the statement at all has significance, and, taken with other circumstances, was a very strong incriminating statement against him.

Without further reference in detail to the evidence, but taking the whole record, we cannot say that the verdict of the jury is manifestly against the weight of the evidence. We do not think it is, and, therefore, the judgment of the court is affirmed at costs of plaintiff in error and the cause remanded for execution.

Judgment affirmed.

Donahue and McCarty, JJ„ concur.


author: HAYNES, J.

text:
    RAILROADS — PLEADINGS—NEGLIGENCE.
    [Huron (6th) Circuit Court,
    1905.]
    Haynes and Parker, JJ.
    Lake Shore & M. S. Ry. v. C. W. Anderson.
    1. Petition against Railroad Company for Causing Fire Sufficient under Lan, R. L. 5395, 5396 (B. 3365-5, 3365-6), when.
    A petition, filed in an action against a railroad company to recover for a loss by fire, which, avers that the fire and sparks were emitted from one of the defendant’s locomotives thereby causing a fire on its right of way and plaintiff’s land lying adjacent thereto, followed by the averment that plaintiff does not know, or have the means of knowing whether the fire originated on the right of way or his own land, states fact sufficient to constitute a cause of action under Lan. R. L. 5395, 5396 (B. 3365-5, 3365-6), and the averment made is also a sufficient averment that the fire communicated directly from the locomotive and not from any other source or land.
    2. Jury Warranted in Finding that Fire Originated from Locomotive, when.
    The jury is warranted in finding that a fire upon plaintiff’s' land which lies adjacent to a railroad company’s right of way, originated from fire and sparks emitted from one of the company’s locomotives when the evidence shows that it originated very quickly after two locomotives had passed along, that the day was windy with the wind blowing in the direction of plaintiff’s land and of sufficient force to carry sparks thereon, and that there were no other fires in the particular neighborhood at the time.
    3. Railroad may Show Want of Negligence as Defense under Lan. R. L. 5395 (B. 3365-5) et seq., when.
    A railroad company sued for damages caused by a fire which started from fire and sparks emitted from one of its locomotives, and which originated upon the land of plaintiff lying adjacent to its right of way, may show in defense that it was not guilty of negligence in the premises.
    4. Defense of Want of Negligence under Lan. R. L. 5395 (B. 3365-5) et seq. not Made out, when.
    A defense interposed by a railroad company in an action in which it is sued to recover damages caused by a fire, that it was not guilty of negligence in the premises in that its locomotives were fully equipped with spark arresters which were in good condition at the time, and were being carefully managed, is not sustained where the evidence shows that the spark arresters would not have emitted fire and sparks sufficient to cause the fire had they been in good order and condition.
    Error to Huron common oleas court.
    C. P. & L. W. Wicknam, for plaintiff: in error.
    McKnight & Thomas, for defendant in error.
   HAYNES, J.

C. -W. Anderson commenced suit in the court of common pleas to recover damages against the railway company for a certain loss suffered by him to his property by reason of the locomotives of the company emitting sparks and causing'fire which resulted in his damage.

The case was tried to a jury and a verdict was rendered in favor of the plaintiff below and the defendant below brings action in this court to reverse the judgment of the court of common pleas and gives a variety of reasons why the judgment should be reversed.

The action was brought below under Lan. R. L. 5395, 5396 (B. 3365-5, 3365-6). The first matter to which our attention is called is the matter in the pleadings and around that there has been been quite a lively contention by the parties.

It is claimed on behalf of the railroad company that the amended petition fails to state facts sufficient to show that the fire originated from the company’s locomotives, or perhaps more accurately speaking, it has failed to show that the fire originated on the land of either the railroad company, or the land of the plaintiff below. The allegations are these:

In the first cause of action, plaintiff below says that one of defend- - ant’s engines in charge of its engineer, pulling a train of cars, was, on March 21, 1902, running along and upon defendant’s railway adjacent, to plaintiff’s land in Townsend township, Huron county, Ohio, and while passing plaintiff’s land and adjacent thereto, said engine emitted fire and sparks, thereby causing a fire on defendant’s right of way and land and on plaintiff’s land adjacent thereto, burning over about six acres, of plaintiff’s meadow land and burning and destroying between forty and fifty rods of plaintiff’s fence, to plaintiff’s damage in the sum of $50. That plaintiff does not know and has not the means of knowing whether said fire started on defendant’s right of way and land, or on-plaintiff’s land. The second cause of action, so far as these allegations-are concerned, are like the first.

Turning now to the statute (Lan. R. L. 5395, 5396; B. 3365-5, 3365-6) in order to see how the question is raised, I cite the statute in 91 O. L. 187, being the same act:

“Every railroad company operating a railroad or any portion'of a railroad wholly or partially within the state of Ohio, shall be liable for all loss or damage by fire originating upon the land belonging to such, railroad company caused by operating such railroad. Such railroad company shall be further liable for all loss or damage by fires originating on lands adjacent to such railroad company’s land caused in whole- or in part by sparks from an engine passing over the line of such railroad,” etc.

Then in See. 2 it provides:

“In all actions against any person or incorporated company for the recovery of damages on account of any injury to any property, whether real or personal, occasioned by fire communicated by any locomotive engine, while upon or passing along any railroad in this state, the fact that such fire was so communicated, shall be taken as prima facie evidence to charge with negligence the corporation, or person or persons who shall, at the time of such injury by fire, be in the use and occupation of such railroad, ’ ’ etc.

Now, the pleader, instead of using the language of the statute, saying that the fire originated upon the lands of the railroad 'company, says that the fire and sparks were emitted from an engine belonging to the defendant, thereby causing a fire on defendant’s right of way. The pleader then proceeds to say that he does not know, nor has he the means of knowing whether the fire started on the defendant’s right of way and land, or on the plaintiff’s land.

After reading the statute, we are inclined to think that that petition is good against demurrer, as against objection to the admission of evidence. It says that sparks were emitted, causing a fire on the plaintiff’s land, and on the land of the railway company. If it caused the fire there, it seems to us that the ordinary understanding of this phrase would be, that the fire originated there. The pleader says he doesn’t know whether it originated or was caused first upon the land of the railway company, or upon the land of the plaintiff below. Section 2 of the statute reads, ‘ ‘ If the fire was communicated. ’ ’

Now, pleadings are not to be subject to every intent. The code says the facts constituting the cause of action shall be stated in ordinary and concise language and that is all that is required. It does not appear that there were any other lands that were on fire, or any other fire in that particular neighborhood; but the pleading does allege that the sparks caused the fire on this plaintiff’s land, and that seems to us, as I have said, quite sufficient averment of the fact. He further says that he does not know whether the fire started upon the railway company’s land or upon the land of the plaintiff below, but he does aver that it started upon the land of either the plaintiff below, or of the railway company. I should add too, that we are of the opinion that the allégation- of the petition is a sufficient allegation that the fire communicated directly from the engine and not from any other source, or any other land.

As I have said, there was no fire in the vicinity — no other fields on fire. There is no claim of that kind made. Of course, counsel for the railway company say very properly, that in passing upon the pleadings themselves and what the evidence may afterwards show, does not help out the original objection to the introduction of any evidence that it made. They claim and very properly claim that if the fire originated in any way except as provided in the' statute, the plaintiff below, in order to recover, would have to make a case of negligence against the railway company and prove it.

Now, having passed that point, witnesses were called to testify in regard to the fire. It appears here sufficiently that the fire originated , soon after two locomotives of the company had passed along the road. It seems from the evidence that the fire originated from the locomotive attached to a particular train called a local train and that the fire originated very quickly after this train passed. The day was a windy day in March and the wind was from the northeast and the effect of that vwould be to carry sparks toward the land of the plaintiff which was on the south side of the railroad, and of course it would carry it with force a considerable distance if there were sparks. The testimony of the witnesses in regard to the appearance of the fire when they first got there, would seem to indicate that the fire originated upon the land of the railroad company — the first fire — and passed from that on to the land of the plaintiff. However, there was the testimony of other witnesses that was offered in rebuttal of that proposition; so that we take it that in the discussion of the proof — in discussing the fire, under these pleadings —we should treat the case as a case within the second class of cases, to wit, as a case in which the fire originated upon the land of the plaintiff. We think that the testimony is clear and have no doubt in our own minds that the fire was communicated from this locomotive, by sparks emitted from this locomotive, flying over upon the land of the plaintiff. There seems to be no other reasonable cause for the fire, and that is a reasonable cause for the fire.

The defendant has a right — because the statute only makes a fire prima facie evidence of negligence — to show that it was not guilty of any negligence. That is the defense that is open to it, consequently it has set up and was permitted to offer evidence tending to prove that the locomotive was fully equipped with spark arresters, that they were in good condition at the time of the fire, that the engine was carefully managed and that the fire did not or could not originate from the locomotive of the defendant below, or that if by any possibility, sparks were emitted so as to create a fire, that the defendant below was not guilty of any negligence in regard to that.

Now, tbe evidence on tbe part of tbe defendant’s witnesses — tbe version of tbe experts appearing bere, and several of them testified in this case — was, that if these spark arresters or if this spark arrester was a good one, in good order, in good condition, tbe sparks would not fly, could not fly so as to ignite and cause a fire on tbe premises of tbe plaintiff below, and that is repeated by several of tbe witnesses.

Now, if that proposition is true, and tbe fire did originate by sparks from tbe locomotive of tbe defendant below, it is pretty conclusive proof that tbe spark arresters were not in perfect condition. Tbe testimony of tbe witnesses in regard to tbe inspection of this engine and the spark arrester, is not very satisfactory — not such as to require tbe court to reverse tbe judgment of tbe court below in this ease.

Tbe testimony is different upon these points. We therefore conclude, after a careful perusal of this evidence that the defendant has not made out. by sufficient proof, a case which requires us to disturb this judgment; in other words, we think the jury was authorized in coming to the conclusion that the fire originated from the .engine of tbe defendant below and that tbe engine was not in good repair at tbe time, that tbe burden of proof as to negligence being upon tbe defendant below, it has not fully sustained that defense, and tbe judgment of tbe court of common pleas will therefore be affirmed, but without any penalty.

Parker, J., concurs.


author: HENRY, J. WINCH, J.,

text:
    BILLS AND NOTES — CRIMINAL LAW — VARIANCE.
    [Summit (8th) Circuit Court,
    April Term, 1905.]
    Marvin, Winch and Henry, JJ.
    Charles A. Semler v. State of Ohio.
    1. Teems “Check” and “Draft” Compared.
    A draft upon a hank, payable on demand, is indistinguishable from a check, and either, considered alone, imports a representation that the drawer has funds to meet it.
    2. False Pretenses, Variance between Crime Charged and Crime Proved.
    Where an indictment for obtaining money by false pretenses charges a representation that the drawer of a draft has funds with the drawee wherewith to meet it, upon which the bank to which it was presented for payment relied, and the evidence discloses that a draft was- drawn and presented and was cashed on the assurance of a statement by tha drawer that he had “arranged for” it, which statement was, in fact, untrue, this is a variance between the offense charged and the. offense proved, and a judgment rendered on a conviction under such an indictment and proof is contrary to law.

      Error to Summit common pleas court.
    Rogers, Rowley, Bradley & Rockwell, for plaintiff in error.
    ' H. M. Hagelbarger, prosecuting attorney, and W. E. Slabaugh, for defendant in error.
   HENRY, J.

This is a proceeding in error prosecuted by Charles A. Semler to reverse a verdict and -judgment of conviction rendered against him at the October, 1904, term of the.court of common pleas of Summit county in the trial of an indictment for obtaining money by false pretenses. .

The indictment charges that on January 23, 1902, Semler presented to Lorenzo D. Brown, as assistant cashier of the Second National Bank of Akron, a certain draft, reading as follows:

“$5,000 Akron, Ohio, Jan. 23, 1902.
“On demand pay to the order of the Second National Bank, of Akron, five thousand dollars.
“To First Nat. Bank, Sharon, Pa.
“Chas. A. Semler.”

The indictment further charges that he falsely represented to Brown that he then had on deposit in the First National Bank, of Sharon, Pennsylvania, a large amount of money, to wit, five thousand dollars, which he had a right to draw out' by draft in the ordinary mode, and that Brown, believing said .representation to’ be true, cashed the draft at Semler’s request on the faith thereof.

Semler’s motion for a new trial was overruled, a bill of exceptions was duly perfected exhibiting all the evidence, and petition in error filed in this court. The error complained of is, that the evidence fails to show that he made the false pretense charged in the indictment.

An examination of the testimony discloses that Semler was a note broker; that he had formerly been employed by the First National Bank, of Akron; that both during and after his employment he had been in the habit of making drafts for large amounts and having them cashed or placed to his credit at this bank, and that he thus, acted in the transaction of his business as a note broker. On January 23,1902, the Second National Bank, of Akron, held for collection a note in the sum of five thousand dollars made by the Cleveland Window Glass Company, and Semler called at the bank to take it up. He told Brown, the assistant cashier, that he had “another note to take up of the same amount at another bank” He procured the blank drafts from Brown and filled them out for five thousand dollars each in the form already described, remarking that he had “arranged for the notes in another place.” He gave Brown both drafts, one to cover the note which was there held for collection, and the other to be cashed for the purpose of taking up the other note at the other bank. He told Brown that the draft had been “arranged for,” and, at his request, Brown gave him five thousand dollars in currency and the note which they held for collection, and with the money Semler absconded, both drafts being afterwards returned unpaid.

Brown testifies that he cannot tell whether or not he would have let Semler have the money if no verbal representations had been made; he. had frequently cashed Semler’s drafts before; but this time Semler said they had been ‘ ‘ arranged for, ’ ’ and he relied on that statement. If he had known that Semler had no money in the Sharon bank he says he would not have cashed the draft.

The cashier of the Sharon bank testifies that Semler had no money in their bank at that time, neither had he made any “arrangements” with them in regard to these drafts.

Sender's counsel contend, first, that the evidence shows that Brown did not rely upon any representations made by Semler, but that he cashed his draft merely because he reposed trust and confidence in him from a long course of similar dealings. Without stopping to discuss this contention at length, we are content to say that our examination of the evidence leads us to believe that a jury might well conclude the contrary from the facts and testimony as above described.

A second contention by plaintiff in error is, that the draft, as such, could not of itself amount to a representation that Semler had money on deposit wherewith to meet it; that a check imports such a representation, but a draft does not, and that the characteristics which distinguish this instrument as a draft are its form, in that it was made payable expressly on demand; its being drawn on a bank in another state and not on a bank in this state and Sender's being known to reside and to keep his commercial account here and not there, and, finally, the instrument’s being considered and called a draft by the parties themselves and by bankers generally. We think, however, in view of the definitions of these terms, “draft” and “cheek,” in the negotiable instruments law, 95 O. L. 187 (Lan. R. L. 5023 et seq.; R. S. 3175q et seq.), declaratory as it is in the main of the common law upon that subject, and especially in view of the discussion of the terms, “cheek” and “draft,” in the case of Oyster & Fish Co. v. Bank, 51 Ohio St. 106 [36 N. E. Rep. 833; 46 Am. St. Rep. 560], that a draft upon a bank, payable on demand, is indistinguishable from a cheek, and that either, considered alone, imports a representation that the drawer has funds to meet it.

A third contention made on behalf of the plaintiff in error presents to our minds a far more serious question, namely, that the verbal representation made by Semler so far qualified the representation which his draft alone would imply as to render the latter incapable of amounting to a representation that he actually had five thousand dollars of money on deposit in the Sharon bank wherewith to meet it. The latter is the false representation which the indictment charges him with making. The representation which he, in fact, made consists of, whatever the draft itself implied when considered in connection with his statement that it had been “arranged for,” and in view of all the circumstances surrounding it.

Let us suppose, for example, that Semler had really called up the Sharon bank and obtained its promise to take and carry the Cleveland Window Glass Company’s paper to the amount of five or ten thousand dollars, and to honor his drafts for the face of such paper when so placed with them. No deposit of money in Sharon would on this supposition be either necessary or contemplated. But would it not in such case be strictly true that the drafts had been arranged for, and is it not altogether likely that some such arrangement was the idea really conveyed by Semler’s words and conduct to Brown’s mind, instead of the notion of an actual cash deposit by Semler in the Sharon bank?

It is perfectly true that Sender's representation, even as thus interpreted, was, under the evidence in this case, just as much a false pretense as the one with which the indictment in fact charges him, but is the false pretense that is proved here the same false pretense as the. one that is charged, or is it a 'distinct and different one ?

The cashier of the Sharon bank illustrates this distinction clearly when he testifies in one place that on January 23, 1902, Semler had no funds in his (the cashier’s) bank; and in another place testifies further to the fact that “there was no ‘arrangement’ made with our bank.”

If the indictment had charged that Semler falsely represented that he had “arranged” with the Sharon bank to honor the draft, there would be no difficulty; nor, the indictment being as it is, would any embarrassment arise if the import of the draft itself had not been qualified by Semler’s oral statement. Was that import contradicted, or was it merely weakened by the oral statement, or was it merely an alternative representation that he had the money to meet the draft on deposit, or else that he had arranged with the drawee to honor it anyway?

We are all of the opinion that the evidence in this case clearly shows that the offense of obtaining money by false pretenses was committed by Semler, and that, too, under peculiarly aggravated circumstances, which, so far from commending him to the leniency of the court, must invoke rather the law’s unmitigated penalty upon him; but a majority of the court find themselves unable to take any other view of the facts in evidence and the law applicable to this case than that the offense proved is not the one charged; and we, therefore, hold that the judgment of the court below, being contrary to law, must be and it is reversed for error in refusing the motion for a new trial, and the cause is remanded to the court of common pleas for further proceedings according to law.

Marvin, J., concurs.

WINCH, J.,

dissenting.

. I dissent in this case for the reason that J believe that the pretense really made by the accused when he said he had arranged for the drafts was a matter to be determined by the jury from the circumstances connected with the uttering of the words, the conduct of the accused, his past relations with the bank, and all the pertinent facts of the ease. The jury having found that he in fact meant he had money on deposit at Sharon it would seem that it is not for us to say that he might have meant something else.

It is to-be regretted that the prosecutor, having asked a competent witness the meaning among bankers of the words “arranged for” when used as in this case, subsequently withdrew the question and it remained unanswered. Had this question been answered there would have been no trouble or uncertainty in arriving at a conclusion one way or the other in this case*


author: HENRY, J.

text:
    BANKRUPTCY — PAYMENT.
    [Summit (8th) Circuit Court,
    April Term, 1905.]
    Winch, Henry and Parker, JJ.
    (Judge Parker of the Sixth Circuit sitting in place of Judge Marvin.)
    American Sur. Co. of New York v. Akron Sav. Bank Co.
    Payment by Surety of Depositary to Trustees in Bankruptcy is not Paymeni to the Government.
    Where a surety on the bond of a depositary for the trustees in bankruptcy of an insolvent company, on the depositary becoming insolvent, makes payment to the trustees on the penalty of the bond, such payment is not made “to the government” so as to entitle the surety to a preference over the other creditors of the insolvent depositary within the meaning of Sec. 3468 U. S. Rev. Stat.
    Error to Summit common pleas court.
    D. A. Doyle, for plaintiff in error.
    Grant & Sieber, for defendant in error.
   HENRY, J.

The Akron Savings Bank Company was appointed by the United States district court, for the northern district of Ohio, as one of the depositaries for the funds of Aultman, Miller & Company in bankruptcy. It was required to give a bond to the United States of America in the sum of $220,000, which it did, with the American Surety Company of New York as its surety, to secure such deposits as the trustees might from time to time make in said bank.

At the time of the failure of the Akron Savings Bank, the trustees in bankruptcy of Aultman, Miller & Company, had on deposit in said bank, of the funds of said bankrupt, the sum of $18,543.11. The receivers have paid to the trustees a first dividend amounting to 10 per cent of. this amount, to wit, $1,854.31, leaving a balance of $16,688.80 still due to the trustees. The trustees made demand on the Surety Company for this balance and the demand was complied with. The claim of the American Surety Company, is for said sum of $16,688.80, with interest from August 3, 1904. It furthermore prays that it may have a preference for the full amount thereof and that said claim may be discharged before payment to any other creditor of the Akron Savings Bank.

. Section 3466 U. S. Rev. Stat. provides for the priority of payment of all claims due to the United States. Section 3468 U. S. Rev. Stat. extends the same priority to sureties on bonds given to the United States. Said section reads as follows:

“Whenever the principal in any bond given to the United States is insolvent, or whenever, such principal being deceased, his estate and effects which come to the hands of his executor, administrator, or assignee, are insufficient for the payment of his debts, and, in either of such cases, any surety on the bond, or the executor, administrator, or assignee of such surety pays to the United States the money due upon such bond, such surety, his executor, administrator, or assignee, shall have the like priority for the recovery and receipt of the moneys out of the estate and effects of such insolvent or deceased principal as is secured to the United States; and may bring and maintain a suit upon the bond, in law or equity, in his own name, for the recovery of all moneys paid thereon. ’ ’

There is no doubt that the same right of priority, which belongs to the government, attaches to the claim of an individual, who, as surety, has paid money to the government. And the same is perhaps true where a surety pays money, as it were, for the government of the United States, in a case where the latter is under a merely moral obligation to restore to persons who have suffered loss through the malfeasance of a federal officer or employe such sums as may be recovered or recoverable by it in that behalf. See United States v. National Surety Co., decided by the United States district court of Nebraska, a memorandum opinion wherein has been submitted to us.

It is claimed here that a trustee in bankruptcy, who is designated in the bankruptcy act (30 U. S. Stat. at L. 544) as an “officer,” falls within the same rule. It is said that inasmuch as he is required by law to deposit all moneys of the bankrupt’s estate coming into his possession in depositaries designated by the federal court having jurisdiction, he, as well as such depositaries, must be deemed to be acting for the United States and as an arm of the government in the administration of such funds for the uses and purposes provided by the bankruptcy act.

We think the analogy thus invoked is pressed too far. The sureties in such a case as this have the option to act or not to act in that capacity. They have the same means of judging the insolvency of the depositary as the ordinary rank and file of individual depositors. To give such sureties a preference would be a manifest injustice which we think the law does not contemplate. The United States has provided by law for suretyship of this character in order to preserve the integrity of bankrupt’s estates, but it is not nor has it assumed to become the protector of such sureties by giving them the benefit of the preference which in other cases it claims for itself. We hold that the payment made by the surety in this case, was not made to the United States, either directly or indirectly, within the meaning of the act above quoted.

The judgment or order below is affirmed.

Winch and Parker, JJ., concur.