text:
    Geis, Admr., v. The Order of United Commercial Travelers of America.

      Insurance — Fraternal beneñcial — Contract includes by-laws and constitution, when — Sections 9469 and 9481, General Code — ■ Non-payment of assessments — Delinquency and forfeiture — Effect of receipt of former assessments after due— Waiver and estoppel.

    The by-laws of a fraternal beneficial order provided among other things that any member who failed to pay fees or any assessment when the same became due became delinquent; both be and any one claiming under him forfeited all rights to indemnity and benefits. An assessment was called for and was not paid within the time fixed by the contract, nor was the same tendered prior to or after the death of the insured, which occurred five days after the time for payment had expired. Prior to this time the insured had paid four assessments after the dates they became due, but neither the supreme council nor any of its members knew that the assessments had been so paid to the secretary-treasurer of the subordinate council. Held:

    1. That under Sections 9469 and 9481, General Code, the constitution and by-laws became a part of the contract and bound- the members of the society to the express wording of the constitution and by-laws, and upon default of payment of the assessment all rights of the insured under his certificate were forfeited.
    2. That the insurer was not estopped to insist upon forfeiture by reason of having accepted the payment of the four prior assessments after the time limit.
    (Decided June 24, 1918.)
    Error: Court of Appeals for Hamilton county.

      Mr. Horace A. Reeve an'd Mr. Howard N. Rag-land, for plaintiff in error.

      Mr. John A. Millener and Mr. John C. Hermann, for defendant .in error.
   Hamilton, J.

Catherine Geyer, widow of Henry Clay Geyer, brought suit in the common pleas court of Hamilton county to recover on a policy of life insurance issued by the defendant company on the life of her husband, who died November 1, 1915. Catherine Geyer has since died, and the case was revived in the name of plaintiff in error, her administrator.

The case was submitted on an agreed statement of facts, and the court found in favor of the defendant company, from which judgment error is prosecuted to this court.

The defendant company is a fraternal beneficial order, operating on the benefit assessment plan and the payment of semi-annual membership dues.

It is agreed that Geyer had paid all semi-annual membership dues to January 1, 1916, and all assessments levied for insurance up to and including assessment No. 128, which was paid by Geyer August 23, 1915; that on September 24, 1915, insurance assessment No. 129 was called by the defendant, which was due and payable on or before October 25, 1915; and that this assessment of two dollars was not paid or tendered on or prior to October 25, 1915, nor prior to his death, which occurred November 1, 1915, in an automobile accident, nor has said sum been paid or tendered since his death. It is further agreed that Geyer paid four insurance assessments after the dates upon which the same became due, but that neither the supreme council nor any of its members had any knowledge of the fact that Geyer had paid any of his assessments to the secretary-treasurer of the subordinate council after the time had expired within which he should have paid the same; and that the constitution and by-laws had been duly and regularly adopted and were in full force and effect.

Proofs of death were made, and payment of the policy demanded, which was refused on the ground that failure to pay assessment No. 129 worked a forfeiture of all rights and 'benefits under the policy.

The question for determination is, Did the failure to pay assessment No. 129, as above set forth, preclude a recovery under the policy ?

It is urged by plaintiff in error that the law does not favor forfeitures and that by-laws providing therefor will be construed to avoid forfeitures if the language employed therein, considered in connection with the other by-laws, will admit of such construction.

As a general statement of the law, this is correct; but in applying this general rule to the instant case, will the language of the by-laws admit of such construction? •

Section 9469, General Code, provides:

“Every certificate issued by any such society shall specify the amount of benefit provided thereby, and shall provide that the certificate, the- charter or articles of incorporation, of [or], if a voluntary association, the articles of association, the constitution and laws of the society and the application for membership and medical examination, signed by 'the applicant, and. all amendments to each thereof, shall constitute the agreement between the society and the member, and copies of the same certified by the secretary of the society, or corresponding officer, shall be received in evidence of the terms and conditions thereof, and any changes, additions or amendments to such charter or articles of incorporation, or articles of association, if a voluntary association, constitution or laws duly made or enacted subsequent to the issuance of the benefit certificate shall bind the members and his beneficiaries, and shall govern and control the agreement in all respects the same as though such changes, additions or amendments had been made prior to and were in force at the time of the application for membership.”

Section 9481, General Code, provides:

“The constitution and laws of the society may provide that no subordinate body, nor any of its subordinate officers or members shall have the power or authority to waive any of the provisions of the laws and constitution of the society, and the same shall be binding on the society and each and every member thereof and on all beneficiaries of members.”

These sections clearly bind the members of the society, including Geyer, to the express wording of the constitution and by-laws.

Section 7 of the constitution and by-laws provides (page 56) :

“Any member who fails to pay fees, fines, costs, dues or any assessment charged • or levied against him, when and as the same become due and payable, shall immediately upon the happening of such default and by virtue thereof, become a delinquent member; and he and every person or persons claiming under him and by virtue of his membership and his certificate of insurance shall likewise at' the-time such default occurs and by virtue thereof, forfeit all right to indemnity and benefits of whatsoever character.”

This language is clear and unambiguous, and is •a part of the certificate of insurance.

Upon default of payment of assessment No. 129 ■on or before October 25, 1915, under section 7 of the constitution and by-laws", Geyer ipso facto became delinquent, and all rights under his certificate were forfeited. Under the terms of the bylaws a member thus delinquent may restore him'self to good standing by paying all sums due, before the next regular meeting of his subordinate council. On failure to make such payments the member shall be suspended. It will be noted that forfeiture of rights under the' certificate of insurance does not depend upon suspension, but' is dependent only upon delinquency. It is admitted that neither Geyer nor any one for him paid or tendered the sum assessed at any time after his becoming delinquent, and, under the by-laws, he was ° delinquent at the time of his death.

'Page 2 of the insurance certificate, under the head of■ “Delinquency,” stated:

“Should such delinquent member at any time regain his good standing as an insured member in the order, his restoration thereto shall in no wise operate to entitle him or any one claiming by, through or under him, or his membership, or his certificate of insurance to indemnity or benefits on account of any accident or injury received by him, while not in good standing, or on account of death resulting therefrom.”

In applying Section 9469, General Code, in the case of Pete v. Woodmen of the World, 5 C. C., N. S., 446, the court say, at page 453:

“These stipulations in the application and certificate, together with the provisions of the laws of the association quoted, constitute the essential terms of the contract between the insured and the association, necessary to be considered by us, and by which the beneficiary is bound. It is well settled by the authorities that all of these rules, these laws of the order, constitute a part of the contract, binding upon the insured. And it is well settled by the authorities that under circumstances like these shown in the record here, the insured is conclusively presumed to have known what these laws were and what they required of him.”

To this effect was also the holding in the case of The Chevaliers v. Shearer, 6 C. C., N. S., 587.

We are therefore of the opinion that the trial court was correct in holding that all rights under the certificate of insurance were forfeited, and in finding in favor of the defendant.

■Plaintiff in error makes the further point that the defendant by reason of accepting payment of some four prior assessments, after the time limit, was estopped to insist upon forfeiture; that they do not claim a waiver, but undertake to distinguish between waiver and the common-law doctrine of estoppel.

Since waiver is not claimed by plaintiff in error, we are unable to see how the doctrine of estoppel could be applied in this case. • .If the defendant is estopped to claim a forfeiture of rights under the certificate of insurance it must be on the ground that, by action or conduct, some of the provisions of .the constitution and 'by-laws, or some of the terms of the certificate of insurance, which provide for forfeiture, have been waived; since the provisions referred to are broad, comprehensive, clear and unambiguous.

In the case of the Order of United Commercial Travelers of America v. Young, 212 Fed. Rep., 132, the court clearly states the law on this question of waiver or estoppel. The first paragraph of the syllabus in that case is as follows:

“The secretary-treasurer of a local council of a fraternal insurance order has no authority to waive the constitution and by-laws of the order stipulating for payment to a beneficiary a specified sum on the death of a member in good standing, but that members shall be deemed in good standing so long only as they pay dues and assessments as they become due, and that any member failing to pay them at maturity shall, by virtue thereof, forfeit his good standing, and a practice between the local officer and a member thereof for the payment of dues and assessments after maturity is not binding on the order unless authorized or ratified.”

For the reasons above stated, and upon the authorities cited, the judgment will be affirmed.

Judgment affirmed'.

Jones, P. J., and Wilson, J., concur.


source: Caselaw Access Project

author: Lieghley, J.

license: Public Domain

text:
    Liston v. Statler et al.

      'Venue — Action for false arrest — Defendants residents of different counties — Suit to be brought in county of arrest — Charge to jury— Section 11271, General Code — Existence of conspiracy — Question for jury.

    'b. An action for conspiracy in causing false arrest which occurred in Medina county was brought in that county against defendants, some of whom were residents of Ashland and one a resident of Medina county. The court charged the jury in substance that unless the jury found the resident of Medina county liable, its verdict should be for the other defendants. Held: That this-was error as the cause of action-arose at the time and place when plaintiff was placed under arrest in Medina county and that such action was properly brought in such county under Section 11271, General Code.
    2. The existence of a conspiracy is a question for the jury and it is error for the court to withdraw the consideration thereof ■ from the jury, unless the court can say as a matter of law that there is no proof whatever tending to establish a conspiracy.
    (Decided October 24, 1917.)
    ■Error: Court of Appeals for Medina county.

      Mr. J. L. Mason, for plaintiff in error.

      Messrs. Kean i& Adair; Mr. Frank Woods and Messrs. Semple & Sherrick, for defendants in ■error. .
   Lieghley, J.

The parties stood in the same order in the court below.

The events leading up to this action began by the execution of a mortgage upon certain chattel property by the plaintiff, then a resident of Ash-land county, to the defendant Statler,' then a resident of Wayne county. When the mortgage became due, foreclosure proceedings were begun in the common pleas court of Ashland county, which resulted in a decree of foreclosure for Statler and an order of sale. An appeal was taken to the court of appeals by plaintiff, Elmore Liston, which resulted in a judgment of affirmance, an appeal bond having been duly executed. Execution was issued on the order of sale made in the foreclosure proceeding,- which was returned by the sheriff unsatisfied. Suit was brought on the appeal bond, judgment rendered, and levy made upon the property of one of the bondsmen. A month or two after the execution in the foreclosure was returned, the plaintiff removed his chattels, or a part' thereof covered by the chattel mortgage, from Ashland county to Medina county. Subsequent thereto Statler •swore to an affidavit before defendant R. L. Adair, ■as notary, in Wayne county, charging plaintiff with unlawfully removing chattel property from the county of Ashland. Said affidavit was conveyed somehow to Ashland county and filed with defendant J. C. Sloan, a- justice of the peace in and for Montgomery township, Ashland county, Ohio. Said Sloan issued a warrant for plaintiff Liston, and delivered the same to defendant Robert Berry, whom he deputized as a special constable. Berry, armed with said warrant, proceeed to Medina to arrest plaintiff, where he employed the defendant E. T. Pierce to drive him to plaintiff’s home, at which place defendant Berry called said Pierce to his assistance to aid him in executing said warrant by arresting plaintiff. By them plaintiff was taken to Medina and from thence to Ashland by Berry, and placed in the Ashland county jail, then under the supervision and in the charge of the defendant R. A. Davis as sheriff, where plaintiff was confined during the night without commitment. The ■next day he'was taken before said justice of the peace, and after some hearing was released.

This action was begun in the common pleas court of Medina county by plaintiff against all the above-named defendants, charging them with unlawfully and maliciously conspiring together and unlawfully obtaining his arrest and confinement. He seeks damages for false imprisonment. Trial was had in the court below. At the close of plaintiff’s testimony the defendant Davis was discharged from the case by the court. The jury returned a verdict for the defendants, upon which verdict judgment was entered, from which error is prosecuted to this court.

Many errors are assigned by the plaintiff. Special attention is called herein to two of them.

In the charge to the jury the trial court withdrew from its consideration the question of whether or not a conspiracy was established by the proof. ■ The overt acts of each and all of the defendants were before the jury. . From these the plaintiff claimed the ultimate fact of a conspiracy between them was established. The defendants, and each of them, deny this. 'The charge of the court can only be justified upon the theory that there was no evidence establishing a conspiracy. It is the province of the court to look to the proof for some evidence of the conspiracy, as a basis for determining whether or not the declaration of one alleged co-conspirator made during the progress of and in furtherance of a common design and pur■pose shall he admitted to bind other co-conspirators. However, the ultimate fact of conspiracy is solely a question for the jury, unless the proof is such that the court can say, as a matter of law, that there is no proof whatever tending to establish a conspiracy. This rule was applied in the case of Davis et al. v. State of Ohio, 20 C. C., 430, opinion by Hale, J.

We are wholly unprepared to say that there is no proof óf a conspiracy between two or more of said defendants. We think that the overt acts established in the proof are such that the question of ‘conspiracy was fairly one for the jury to pass upon. Whether the conspiracy existed between any two or more is a jury question. Each and every one of the defendants need not necessarily be a party thereto. Who, if any, were parties thereto is the ultimate fact to be decided. Schenck et al. v. Knott, 13 C. C., N.S., 41.

We think the trial court erred in withdrawing the determination of the ultimate fact of a conspiracy from, the consideration of the jury.

The defendant Pierce was the only defendant who resided in Medina county. The other defendants resided either in Wayne or Ashland county. The cotirt charged the jury in substance that unless the jury found the defendant Pierce liable, its verdict should be for the defendants, upon the theory that the remaining defendants being nonresidents, the court had no jurisdiction of the persons. It is claimed this was error.

It is our opinion that the cause of action, if any, arose at the point of time and place when plaintiff was placed under arrest by the defendants Berry and Pierce, which was in Medina county. We agree with counsel for plaintiff that Section 11271, General Code, applies to this action. Therefore, the court had jurisdiction of the subject-matter under said section and summons may issue to other counties. If it be true, as claimed by plaintiff, that two or more of these defendants did wrongfully conspire together to the damage of plaintiff, it works no great hardship upon them to defend their action in the county where they caused the false arrest, for they thereby chose their own forum. We have examined the ■cases cited by counsel for defendants bearing upon this question, but neither one of them was an action of the character and kind that this one is. Neither one of those cases was brought under Section 11271, General Code, to which our attention has been called. We believe, and it is our opinion, that if the plaintiff has a cause of action upon the allegations contained in his petition it was properly brought in Medina county and that the court had jurisdiction of the subject-matter and the persons. .Therefore, we find that the court erred in charging the jury that in the event the plaintiff had failed to establish his case against the defendant Pierce its verdict should be. for all defendants.

We find no other prejudicial error in the record.

For the two errors above' referred to the cause is reversed and remanded.

Judgment reversed, and cause remanded.

' Grant and Carpenter, JJ., concur.


author: Jones, P. J.

text:
    The Hartford Fire Insurance Co. v. The Cincinnati Ice Manufacturing & Cold Storage Co.

      Insurance — Fire and lightning- — Proofs of loss — Misdescription of loss not false swearing, when — Valued-policy law- — -Sections 9383 and 9584, General Code — What constitutes "structure” — Policy covering ice-making plant — Evidence — Photographs of other casualties inadmissible, when —Refusal by company to name appraiser — Cause of collapse of building — Finding of jury sustained, when,

    1. When a policy of fire insurance, by attaching a so-called lightning clause thereto, had been extended to cover a direct loss occasioned by lightning, without otherwise stating or repeating contract stipulations for lightning as contained in the body of the policy in regard to fire, and during a storm the building so' insured collapsed and was damaged but no combustion occurred and it was a question whether the fall of the building was caused by a stroke of lightning or by the force of the wind, liability under the policy can not be avoided for fraud and false swearing merely because the affidavit for proof of loss im- ' properly termed the loss a “fire” loss, where there was no attempt to mislead or defraud the insurance company.
    2. The valued-policy rule, provided by Sections 9583' and 9584, General Code, is applicable, under a policy covering an ice-ma'king plant, to the cooling tower and the machinery contained therein, where the machinery and buildings are used as an entirety and come within the terms of the valued-policy act both as to the amount of damages and prorating of the loss.
    3. It is not error to exclude photographs of collapsed buildings which it is claimed were in the path of the storm prevailing at the time plaintiff’s building collapsed, where the buildings shown in such photographs were located many squares distant from plaintiff’s building and the record fails to show that they were in the path of the particular windstorm which the insurance company claims destroyed plaintiff’s building.
    4; An insurance company is not at liberty to refuse to name an appraiser in accordance with the provisions of the policy in suit, where the only reason for so doing is that work has been done in the way of restoring the damaged property.

      5. Where the evidence is conjectural as to whether the collapse of a building was due to the force of the wind or to a bolt of lightning, and an explanation is offered as to how a bolt of lightning might have damaged a wall and thus caused the collapse without combustion occurring, a finding by the jury to the effect that the fall of the building was due to lightning will not be disturbed by a reviewing court.
    (Decided April 15, 1918.)
    Error: Court of Appeals for Hamilton county.

      Messrs. Black, Swing & Black; Mr. J. W. Mooney and Mr. R. M. Edmonds, for plaintiff in error.

      Messrs. Harmon, Colston, Goldsmith & Hoadly; Mr. Oscar Stoehr; Messrs. Galvin & Galvin and Mr. J. L. Kohl, for defendant in error.
   Jones, P. J.

This is an action brought by defendant in error, The Cincinnati Ice Manufacturing & Cold Storage Company, as plaintiff below, against plaintiff in error, The Hartford Fire In- . surance Company, as defendant below, which parties will be hereinafter referred to, for convenience, as plaintiff and defendant, respectively, to recover upon four policies of insurance for a loss to the buildings and ice manufacturing machinery of the plaintiff, claimed to have been caused by lightning.

There is no question but that the cooling-tower situated upon the roof of the. highest building did fall down during a storm, resulting in serious damage and loss to plaintiff. No part of the property, however, was consumed by fire, nor, so far as the record shows, was combustion started as a result of the lightning. The main contention between the parties is whether the fall of the cooling-tower and the damage occasioned thereby resulted from lightning or was caused by the severe windstorm.

Upon trial to a jury a verdict was rendered in favor of the plaintiff, upon which judgment was entered. It is sought in this proceeding to secure a reversal of that judgment.

The first ground urged for a reversal by plaintiff in. error is that defendant in error was chargeable with fraud and false swearing in the proofs of loss made by it to the insurance company, and that the court refused to give the insurance company’s special charges 9 and 10 which sought to make void the policy because of such false swearing.

The clause of the policy under which this defense is made is as follows:

“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching- any matter relating to this 'insurance or the subject thereof, whether before or after loss.”

Each of the policies sued upon insured plaintiff in stated sums “against all direct loss by fire, except as hereinafter provided,” on certain buildings and structures; also upon certain boilers, engines, ice machines, machinery, shaftings, belting, pulleys, pipes, etc., etc., therein situated, occupied and used in manufacturing ice and in refrigerating their cold-storage rooms.

It is stipulated in a printed form in the body of the policies “that the company shall not be liable" for loss caused directly or' indirectly by invasion,” ■etc..; “or (unless fire ensues, and, in that event for the damage by fire only) by explosion.of any kind, or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon. If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease.”

By a printed slip, however, attached to the policy and made part of it, designated as “Lightning Clause,” it is provided: “This policy shall cover any direct loss or damage caused by lightning ('meaning thereby the commonly accepted use of the term 'lightning/ and in no case to include loss or damage by cyclone, tornado or windstorm), not exceeding the sum insured, nor th.e interest of the insured in the property, and subject in all other respects to -the terms and .conditions of this policy.”

By these provisions it was undertaken to insure ’ the property against damage by lightning, whether ' or not fire ensued, and any direct loss or damage caused by lightning although not the result of actual combustion. Nowhere in the policy outside of the two above references is loss resulting from lightning mentioned or provided for except by classing it as a fire loss. The proofs of loss submitted by the insured to the company used the word “fire,” as it appears throughout the policy, to describe the loss, and while the insured specifically refers to each policy of insurance against loss or damage by fire according to the terms and conditions printed therein, an'd specifically states that a fire occurred by which the property described in said policy was destroyed or damaged, said fire originating “from stroke of lightning,” and otherwise refers to fire as the cause of damage, there is no direct statement in the affidavits that the building or any part of the property insured was con-' sumed by fire, or -that any combustion ensued, but merely that loss and destruction resulted.

The word “fire” is evidently used as a generic term to cover -all losses protected by the policy and 'can not be construed to refer to losses by combus^ tion alone. The record contains much interesting testimony given by 'expert scientists as to the nature and manifestations of lightning and electrical discharges from the clouds during thunder storms, but it is apparent that exact rules can not be adduced from the phenomena collated as to what results follow when a building is “struck by lightning.” Lightning is always accompanied by some flash of light caused by incandescence or burning of gas, so to that extent fire is a usual manifestation. The damage caused by lightning, however, by a shock knocking down a tree or building, is not necessarily followed by or the result of combustion, yet it would be a direct loss or damage caused by lightning within the terms of the “Lightning Clause” in these policies, and the contrast between the terms of the lightning clause and the provision in .the body of -the policy above referred to which exempts such damage unless fine ensues is a recognition of this difference. While that may not be material, it is shown by the record that the proofs of loss used in this instance were prepared on blank forms printed for the use of the insured in such .cases of loss, and conform to the language of printed policies used for fire losses which by the addition of the printed lightning clause stipulation have been adapted also to insure against lightning.

There is no question but that the. ordinary fire policy such as was used in this case would cover damage from water, or from smoke, or from the collapse of a building which was the result of fire, although actual combustion may not have entered into the particular loss itself, • and undoubtedly these policies, as enlarged by the addition of the lightning clause, cover damage by lightning where combustion is riot an element.

Placing this construction therefore upon the policy and proof of loss, and considering the testimony of Mr. Schell and Mr. Lippincott, called on behalf of the insurance company, and of the officer and employe of the insured, we can not find that there was any evidence of fraud or false swearing introduced which would require or justify the giving of special charges 9 and 10 — as they must be given or refused in the exact language in which they were presented — and the court therefore was not in error in refusing them. Undoubtedly a provision in a policy avoiding liability under it for fraud or false swearing occurring in the proofs of loss is upheld and constitutes a complete bar to any recovery under the policy (Capital Fire Ins. Co. v. Beverly, 14 C. C., 468), but it is a general rule that misstatements in a proof of loss, to forfeit the policy, must be not only false, but unlawfully false. A mere innocent mistake will not amount to fraud or false swearing within the provisions of the policy. (4 Cooley Briefs on the Law of Insurance, 3415.) We also find that the part of the general charge as given by the court in relation to this claim of false swearing was a proper charge and all that the defendant was reasonably entitled to.

The plaintiff in error next urges as a ground of error that the verdict and judgment are excessive, and that the charge of the court in fixing the amount of recovery is erroneous because the prorating clause in the policies in suit was disregarded, and because the other concurrent insurers were necessary parties to the action. It is particularly urged that even though the valued-policy rule provided by Sections 9583 and 9584, General Code, might be applied to the first paragraph of the description of the property improved, limited particularly to the buildings, it could not apply to the property constituting the cooling-tower and ice-mabing machinery, as detailed and described in the second clause of the property insured, for the reason that the latter must be deemed personal property or chattels, as distinguished from real estate.

A very lengthy and impressive discussion is furnished by counsel for plaintiff in error in numerous briefs to support this contention, but the correctness of their position defends upon a conclusion that the judgment of the supreme court in the case of The National Fire Ins. Co. v. Dennison; 93 Ohio St., 404, is not sound law and does not properly construe Sections 9583 and 9584. In our opinion the decision in that case is correct; but if counsel are right in this contention they must address their argument to the supreme court rather than to the court of appeals, as this court is conclusively bound by the decision of the supreme court and it is useless for counsel to undertake to have us disregard or refuse to follow it.

The case of Insurance Co. v. Luce, 11 C. C., 476, holds that property situated and used as is the ice-machine property in this case constitutes fixtures, and, whether technically a part of the real estate itself or not, the items enumerated in the second paragraph of the description of property in the policies all constitute “structures” within the terms of Section 9583. The testimony of Mr. Siegel giving the details of the items included in this property and the damage thereto, none of which testimony was challenged or disputed, shows that the building, fixtures and machinery were used as an entirety and came within the .terms of the valued-policy act and the - authorities above mentioned both as to the prorating and as to the amount of the damages. The court therefore did not err in refusing to give special instruction No. 11, or in its general charge instructing the jury that these items properly were “structures” within the contemplation of the law of the state of Ohio-.

It is also urged that the trial court erred in excluding photographs representing damage by wind to. other buildings in Cincinnati which were claimed to have been in the path of the storm in which plaintiff’s buildings were damaged.

The admission of such evidence was largely in the discretion of the -trial court. It appears that the two photographs offered represented collapsed buildings which were located many squares away from the property involved in this case, and the record fails to show definitely and conclusively that they were in the path of the particular windstorm which defendant contends caused plaintiff’s damage. We can not say that the court erred in refusing to admit this evidence.

Nor do we find that the court erred in allowing questions to be asked of Mr. Lippincott, the insurance adjuster, as to the extent of plaintiff’s loss, especially so as the witness failed to directly answer the question excepted to, in such a way as to fix any definite sum.

There is no question but that under Weil v. Connecticut Fire Ins. Co., 23 C. C., N. S., 281, and other cases cited, the insurance company was entitled, upon its disagreement with the insured as to the extent of the loss, to have an appraisement by virtue of the terms of the insurance policy; but when the insured named its appraiser and requested the insurance company to also name an appraiser, in accordance with the provisions of the policy, the insurance company could not refuse to do so merely because work had been done by the insured in the way of restoration of the property damaged.

As a part of its general charge, the court said:

“The first question you will determine when you retire for deliberation will be, what caused the loss and damage? If you find from all the evidence, facts and circumstances of this case that the loss and damage was caused by a stroke of lightning, then your verdict should be for the plaintiff.”

While it is true that this clause- taken alone would be erroneous, though positive in its form, it must be taken in connection with all the remaining parts of the general charge which set out and discuss the different defenses of the insurance company'and cover the entire case. We can not therefore say, considering the charge as a whole, that the use of the language quoted, taken with the remainder of the charge, served to mislead the jury, or was so prejudicial to the defendant as to require a reversal.

The main contention, however, is that the verdict was contrary to the manifest weight of the 'evidence.

The record discloses very interesting testimony in regard to the cause of the injury and the character of the storm. It is argued on behalf of the insurance company that the evidence conclusively shows that the collapse of the cooling-tower, and the consequent damage to the building, was caused by wind, and to support their contention they have produced the testimony of the United States Weather Reports, and the observer, as to the local record of the direction and velocity of the wind, amount of rain and general characteristics of the unusual storm which visited the locality at the time of the damage. They also argue that lightning would necessarily have shown some fusing or burning of the metals or wood, showing the track taken by the electric current, and that the lightning would have followed water pipes which extended higher and outside of the brick wall. On behalf of the plaintiff it is with equal force contended that the evidence submitted conclusively shows -that the time of the actual collapse of the-cooling-tower, and the consequent damage, coincided exactly with a stroke of lightning and severe thunder clap which was testified to by numerous railroad men and others who were in the immediate vicinity, and that it preceded by some distinct period of time the strong wind which followed. It is insisted that this was absolutely shown by -the fact that the dense ammonia fumes were blown from the collapsed building south and southeast under the Eighth street viaduct, and as far as Pearl street down Eggleston avenue upon which the railroad tracks were located and on which tracks and the adjoining switch tracks a number of ’witnesses were then engaged in shifting cars. It is ‘also insisted on behalf of plaintiff that the brine pipe offered the best -conductor for the electricity, so near the top -of the building that it would be preferred by the electric current to either the water pipe or the brick walls, and that the lightning might well have demolished enough of the brick wall to reach this brine pipe and follow it down to the earth, without showing other evidence than the broken wall at the top. which caused and was obliterated by the falling of the cooling-tower.

While of course in the very nature of things a difficult question is raised as to just what caused an accident such as -this, the issue is one which it is peculiarly the province of the jury to decide. A-careful -consideration of all of the minute and interesting -evidence and careful arguments of counsel submitted in this case fails to convince the court that the verdict of -the jury can be held contrary to the manifest weight of the evidence; nor do we find in the'numerous points suggested any prejudicial error which would require a reversal of the' judgment, which therefore must be affirmed.

Judgment affirmed.

'Hamilton, J., concurs.


author: By the Court.

text:
    The Cincinnati & Columbus Traction Co. v. Tile Union Savings Bank & Trust Co. et al.

      Court of appeals — Jurisdiction on appeal — Action for unpaid stock subscriptions. ,-
    An action to collect unpaid subscriptions to the capital stock of a corporation is not a chancery case within the meaning of Section 6, Article IY of the Ohio Constitution, and is not appealable.
    (Decided April 22, 1918.)
    Appeal : Court of Appeals for Hamilton county;
    On Motion to dismiss appeal.

      Mr. D. W. Murphy and Mr. Thos. L. Michie, for appellant.

      Mr. Murray Seasongood and Mr. Robert P. Goldman, for appellees.

      Mr. J. Schroder, for A. G. Schwab, and Mr. John 'C. Healy, for Virginia R. Burch.
   By the Court.

The original proceeding in this case was an action for the appointment of a receiver, marshaling of liens and the foreclosure of a mortgage. A cross-petition was filed on behalf of Daniel W. Murphy, administrator of the estate of Otto Smith, -deceased, seating up a judgment obtained against The Cincinnati & Columbus Traction Company for wrongful death and seeking' to secure payment -of balances due on subscriptions for stock made by numerous stockholders of said traction company. An .order had been made in this case directing the receiver to proceed to the collection of any balances that might be due upon said stock subscriptions.

The court of common pleas sustained the demurrers to -the amended supplemental cross-petition of said Daniel W. Murphy, administrator, and, said cross-petitioner having -elected to stand on the averments of said amended supplemental cross-petition, and declining further to amend -or plead, a judgment was -entered dismissing such amended supplemental cross-petition at the cost of said cross-petitioner. To this judgment notice of appeal was given by said Murphy, administrator, and proceedings taken to perfect an appeal in this -court.

The case coming on to be heard in this court a motion to dismiss the appeal for want of' jurisdiction is filed.

' The jurisdiction in appeal, of the court of appeals, is fixed by Section 6,' Article IV of the amended Constitution, which gives the right 'of appeal -only in -chancery cases. The case of Wagner v. Armstrong et al., 93 Ohio St., 443, has discussed and defined this right.

An action to collect an unpaid subscription to capital stock of a corporation is a suit at law to recover a money judgment. (Smith, Recr., v. Johnson et al., 57 Ohio St., 486.)

“A court of equity has no jurisdiction, on the ground of avoiding a multiplicity of actions at law, of an action against a corporation which has been adjudicated a bankrupt, to enforce collection of unpaid subscriptions by stockholders of such corporation, as the liability of each stockholder presents a separate controversy unconnected with that of any other.” Kelley, Trustee, v. Gill, 62 L. Ed., 185 (245 U. S., 116). See also Hale v. Allinson, 188 U. S., 56.

The cross-petition upon which appeal is sought does not raise a chancery. question, and the court is therefore without jurisdiction.

The motion to dismiss the appeal is granted.

Motion to dismiss appeal granted.

Jones, P. J., and Hamilton,-J., concur.

Wilson, J., not participating.


author: Lawrence, J.

text:
    Enger v. King.

      Appeals — Justice of peace to common pleas court — ■Bond filed within time, when — Section 10216, General Code, applies, when.

    The provisions of Section 10216, General Code, fixing the manner of computing the time within which an act is required by law to be done, applies to practice in courts of justices of the peace, and an appeal bond perfected before a justice of the peace in accordance therewith is not open to attack on the ground that it was. not perfected within the timfe required by law.
    (Decided June 10, 1918.)
    Error : Court of Appeals for Cuyahoga county.

      Mr. A. L. Steuer, for plaintiff in error.

      Mr. A. J. Armbruster, for defendant in error.
   Lawrence, J.

This is a proceeding in error to reverse a judgment rendered by the court of common pleas in an action brought there on appeal from the court of a justice of the peace.

Enger, plaintiff in error, was defendant in both the lower courts.

In the court of common pleas a motion was made to dismiss the appeal for the reason that the appeal bond was not signed within the time required by law. This motion was sustained, and error is now prosecuted in this court to reverse the judgment of the court of common pleas.

From the transcript of the justice of the peace it appears that the judgment was rendered September 6, 1917, and the appeal bond was given and approved September 17, 1917, and the sole question now presented for our consideration and determination is, Was the appeal perfected within the time required by law?

The court takes judicial notice that the 16th day of September, 1917, fell on a Sunday. Section 10383, General Code, provides:

“Within ten days from the time a justice renders judgment, the party appealing therefrom must give a bond to the adverse party, though he need not sign it, with at least one sufficient surety to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs;” etc.

The General Code has been the law in Ohio since its approval by the governor in 1910.

Section 10216, General Code, provides:

“Unless otherwise specifically provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; except that the last shall be excluded if it be Sunday.”

One object of the legislature in creating the codifying commission, if not its chief purpose, was to do away with different statutes relating to the same condition.

Before the General Code became effective, Section 4951, Revised Statutes — now Section 10216, General Code — did not apply to practice in the justices’ courts.

Part Third of the General Code covers the remedial legislation of the state, and is divided into nine subdivisions or titles: Title I, “Preliminary,” contains general provisions applicable to all the courts, including therein Section 10216, quoted above; Title II contains “Procedure in Justice’s Court;” Title III, “Procedure in Probate Court;” followed by titles applicable to the common pleas and the court of appeals, respectively; clearly demonstrating to our minds that Section 10216 must be con-' strued as extending to acts in all the courts. We can see no reason why it should not so apply, and we hol’d that it does and that a bond given in accordance therewith is sufficient.

This ’being true, the judgment of the court of common pleas is reversed, and the case remanded to that court for further proceedings.

Judgment reversed, and cause remanded.

Grant and Dunlap, JJ., concur.


author: Chittenden, J.

text:
    Gifford, Admr., v. Ryan et al.

      Court of appeals — Appellate jurisdiction — Action to vacate judgment after term.

    An action under favor of Section 11631, General Code, and the succeeding sections, to vacate, after the term, a judgment, and to enjoin its collection, is not appealable.
    (Decided February 11, 1918.)
    Appeal: Court of Appeals for Lucas county.
    On Motion to dismiss appeal.

      Mr. Thomas L. Gifford, for plaintiff.

      Messrs. Southard, Southard '& Rowe, for defendants.
   Chittenden, J.

Three cases, only one of which is noted in the caption of this opinion, have been presented on motions to dismiss the appeal taken in each case. . Three judgments were taken in favor of the plaintiff against defendants upon cognovit notes executed by the defendants. At a subsequent term of the trial court the defendants filed in each of the actions in which judgment had been taken a petition, and thereafter an amended and a second amended petition, setting up, in substance, that judgment was taken against'them by virtue of the warrant of attorney contained in the notes, and that they had no knowledge of the filing of the petitions upon the notes or of the taking of the judgments thereon until after the expiration of the term of court at which the judgments were rendered. It is also alleged that before the judgments were taken the notes had been fully paid and satisfied and that the defendants were not indebted upon such notes in any sum whatsoever. They therefore prayed that the judgment in each case be vacated, canceled and wholly set aside, and, further, that the plaintiff be restrained and enjoined from 'having execution levied on the property of the defendants, and from endeavoring to collect the judgments in any manner or form, and for all other and further relief. Subsequent pleadings were filed by the parties and issues were made which were submitted to the court. The court, upon the trial of the causes, refused to vacate the judgments. Thereupon the cases were appealed to this court.

It is contended on behalf of the plaintiff that the pleadings conclusive^ show that the relief sought by the defendants is by virtue of Section 11631, General Code, which provides when the court of common pleas may vacate or modify its judgments after the term at which they were made, the succeeding sections which determine the method of procedure, and Section 11638, which makes provision. for an injunction in such cases.

It was held by the supreme court in Taylor, Assignee, v. Fitch et al., 12 Ohio St., 169, that a proceeding under original Section 11631, is not a civil action, but a special proceeding in an action after judgment, and subject to review only on error. The same 'conclusion was reached in Coates v. Chillicothe Branch State Bank, 23 Ohio St., 415. In the latter case it was held that an independent action in equity might be brought to enjoin the collection of a judgment obtained by fraud, and that such an action would be appealable. “The question,” says the court, at page 432, “then, resolves itself into this: Was the ease an original action, or a proceeding in an action? If it was the former, the case was appealable; if it was the latter, it was not.”

Darst v. Phillips, 41 Ohio St., 514, was an action to enjoin the collection of a judgment taken upon a cognovit note, which note was alleged to have been paid before the judgment was taken. In the course of the opinion in that case, on page 517, the court says:

“In the 'case at bar, therefore, the judgment defendant had an election to proceed under the statute to vacate and enjoin, or by original action for injunction.”

'Courts of chancery never claimed to exercise any supervisory power over the courts of law or their proceedings. Judgments were not reversed or vacated in equity. Equity always acted on the person, not the proceeding, and, while it would enjoin the enforcement of a judgment in proper cases, it would not interfere with the judgment itself. 1 Black on Judgments (2 ed.), Section 357.

From the -authorities cited it is clear that if this were an original action in. equity for an injunction to restrain, the 'collection of a void judgment -it would be appealable, but if it is an action under Section 11631 it is a spedal proceeding and is not appealable now; nor would it have been appealable before the recent amendment to the constitution. The defendants, as suggested in their briefs, had the election to proceed either way, and it is entirely clear to the -court that they elected to proceed under the provisions of Section 11631. Such being the case, the proceeding is not appealable and the motion to dismiss the appeal will be granted.

Motion granted.

Richards and Kinkade, JJ.-, concur.


text:
    The First National Bank of Dillonvale v. Young, Executrix.

      Executors and administrators — Limitation of action against- — • Section 10746, General Code — Cause of action accrues, when — Default of interest on bonds guaranteed by decedent.

    Y sold bonds of a coal company and guaranteed the payment of the interest and principal when they became clue. He died in 1909 and an executrix of his estate was appointed the same year. March 1, 1912, the company defaulted in payment of interest and its property was sold the same year, but the sum realized was insufficient to pay the principal and interest of said bonds. Claim under the guaranty was made upon the executrix January 7, 1913. Held:

    That the cause of action accrued March 1, 1912, and that as the claim was not presented within six months from such date it was barred by Section 107*46, General Code.
    (Decided October 15, 1917.)
    Error : Court of Appeals for Cuyahoga county.

      Messrs. Smith, Taft & Arter, for plaintiff in error.

      Messrs. Cushing & Lamb and Mr. I. T. Siddall, for defendant in error.
   Lieghley, J.

The parties stood in the same order below. In May, 1906, T. E. Young sold three (3) one thousand dollar ($1,000) bonds of the Wabash Coal Company to plaintiff. As alleged in the amended petition, said T. E. Young guaranteed the payment of said bonds and interest, by letter, in the following language:

“I will guarantee the payment of the interest, and also the principal when they become due.”

Said bonds were secured by mortgage on the property of the Wabash Coal Company. Said T. E. Young died on September 2, 1909, and on September 8, 1909, his will was offered for probate in Cuyahoga county and Maud S. Young was named executrix, who qualified as such. On March 1, 1912, said coal company defaulted in payment of interest. Some time in 1912- the receiver for said coal company instituted foreclosure proceedings, and on November 11, 1912, sold the property of said coal company for fifty-two thousand dollars ($52,000) which sum was insufficient to pay the principal and interest of the first mortgage bonds.

It is claimed by plaintiff that the liability of defendant is contingent, and did not accrue, and the amount thereof was not ascertainable, until the property was sold. The estate of said T. E. Young not having been fully administered, a claim, founded upon said guaranty, was presented to the executrix on January 7, 1913. It is further claimed by plaintiff that said claim was allowed by the executrix, but has never been paid.

It is claimed by the defendant that the cause of action did not accrue until more than eighteen (18) months after said executrix qualified, and, although the estate at that time was not fully administered, said plaintiff failed to present its claim to said executrix until about ten (10) months after the accruing thereof.

It is claimed by defendant that said cause of action accrued March 1, 1912, and that the provisions of Section 10746, General Code (102 O. L., 203), are controlling in this case.

This cause came to trial in the court below upon the amended petition of the plaintiff, the amended answer of defendant, and the reply of plaintiff thereto. In the amended answer it is alleged that by the provisions of said bonds, as well as the mortgage or deed of trust securing the same, the principal of each of said bonds became due on the, ' default of payment, of any coupon.

It is further alleged that the property of the coal company was placed in the hands of the receiver in December, 1911, and that there was default in the payment of the interest coupon on March 1, 1912, following, and that, therefore, all the bonds and interest became due under the provision above quoted, on March 1, 1912.

The reply of plaintiff denies that the bonds became due at the time alleged by defendant, which is a conclusion. Said reply fails to deny - that Said bonds and mortgage contain the provision for default alleged by defendant in her answer.

It is our opinion that the guaranty, couched in the language that • it was and is, constitutes a guaranty of payment; that the bonds and interest all became due March 1, 1912. Castle v. Rickly, 44 Ohio St., 490, 496.

The pleadings, and briefs of counsel for plaintiff concede that no claim was presented to the executrix until January 7, 1913, more than six (6) months after the accruing of action on said guaranty. In view of the fact that it is our opinion that Section 10746, General Code, is controlling in this case, we hold that said cause of action was barred by said statute.

The judgment is, therefore, affirmed at the costs of plaintiff in error.

Judgment affirmed.

Grant and Carpenter, JJ., concur.


text:
    Fox v. The Bronx Amusement Co.

      Negligence — Res ipsa loquitur— Theatre seat breaks —Error to dismiss action after statement of counsel, when.

    Where a woman after purchasing a ticket enters a motion picture theatre during a performance and takes one of the seats provided for patrons, and during the performance the seat upon which she is sitting gives way, causing her to fall upon the floor and to suffer a miscarriage, the doctrine of res ipsa loquitur applies; and in an action for damages resulting it is error, after counsel for plaintiff has stated the case to the jury, to grant a motion to dismiss on the ground that the said statement did not embody. a cause of action against the defendant.
    (Decided June 17, 1918.)
    Error : Court of. Appeals for Cuyahoga county.

      Messrs. Henderson, Wickham & Maiden, for plaintiff in error.

      Messrs. Kerruish, Kerruish, Hartshorn & Spooner, for defendant in error.
   Lawrence, J.

This case is here on error to the court of common pleas, and is an action brought by plaintiff in error, plaintiff below, Elizabeth Fox, to recover damages for injuries which she claims were sustained by her by reason of the negligence of defendant.

The plaintiff in her petition alleged that on the 28th day of October, 1916, the defendant company owned and operated a theatre, known as the Jewel theatre, located on St. Clair avenue, Cleveland, Ohio, in which theatre public exhibitions were had and admission charged therefor; that on that day she purchased a ticket and entered said theatre; that she was shown to or took a seat that defendant had provided, among others, for the use and occupancy of its patrons; that shortly after she had occupied said seat the bottom part of if broke, throwing her to the floor and injuring her in certain specified particulars. Plaintiff further alleged that said accident was solely and proximately caused by the defendant’s negligence, and specified the particulars.

The defendant by answer denied all the allegations of the petition except that it is an Ohio corporation, that on the day of the alleged accident it operated the Jewel theatre and charged admission, that plaintiff was a patron of said theatre and had entered it for the purpose of viewing the pictures exhibited, and that it provided all of the seats that were in said theatre at said time.

After the impaneling of the jury and the statement of plaintiff’s case, the defendant made a motion to dismiss the petition for the reason that plaintiff did not state a cause of action against the defendant. This motion was sustained, plaintiff’s petition dismissed, and exception noted by - the plaintiff. Motion for new trial was overruled, and error is now prosecuted in this court to reverse the judgment of the court of common pleas. ■

The opening statement of the case to the jury is as follows:

“If your Honor please, and Gentlemen of the Jury, the facts in this case are brief so far as a statement of them is concerned.
“Along about the latter part of October, possibly along about the 27th or 28th, Mrs. Fox, the plaintiff, with her husband, who are living in Cleveland, and were at that time living in Cleveland near the Jewel theatre on St. Clair Street, near 118th Street, went to see the pictures in the theatre on that night; bought tickets, paid their admission, whatever it was, five cents possibly, and took seats in the theatre. Mrs. Fox at that time was pregnant with child, probably three months, and during the performance, and not very long after they had taken seats, the bottom of the seat fell almost completely out, letting her fall to the floor and upon her knee, which was partly under the seat. One side of the bottom of the seat broke away from the fastenings ;• 'the other side was held up partially by an iron or steel brace, so that the bottom of the seat did not fall completely down, one end was stuck up, but she fell clear down to the floor on her knee. She stayed there until almost completely recovered, and then she was. taken out by Mr. Fox. On the way out they spoke to one, who appeared to be in charge there of the theatre, whom we will prove to be Mr. Kalafat. She was taken home, and in two or three days after ■that began to feel the effects so far as her ■pregnancy was concerned, having pains in her back and began menstruating, and was taken care of as well as her husband could take care of her.

She had relatives in Youngstown, and was taken there, and was attended by a doctor in Youngstown, who is here amd will tell you the exact extent of her injuries. She lost the child, with which she was pregnant at the time she fell; and she has now, in her left leg, what is known to the medical profession as Phlebitis of the blood vessels, that is, a clot that is formed there, and she now has to wear a rubber bandage, and ■ is under almost constant pain,. especially when she waiks, and it is, as the doctor will testify, a permanent injury.

“We claim that under her contract of admission to the theatre it was the duty of this defendant company to furnish her with a proper seat to see the exhibition which she paid to see; and that these injuries are directly and only caused by their failure to furnish her a proper seat; and that her injuries, through that, will go with her as long as she lives; and in addition the loss of the child, to which in all probability she would have given birth.
“Upon these facts, if we prove them, we will ask damages at your hand in an amount which will fairly compensate her for the injuries she sustained by reason of the negligence of this company in that respect.”

It will be seen that the sole question presented for our determination is, Does the foregoing statement to the jury state a cause of action against the defendant?

Plaintiff had alleged in her petition specific grounds of negligence. However, such were not included in the statement to the jury. In the view we take of the case it was unnecessary to either allege or state the specific ground's of negligence causing ’the injury. This theatre was- under the management of the defendant, and in the ordinary course of things such accidents do not happen if proper care is used. The plaintiff was lawfully in this theatre, had an implied invitation not only to enter the theatre but occupy a seat provided by the management thereof, and she had a right to rely upon the safe condition of the seat provided for her, and the 'breaking of the seat itself affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.

Without further comment, this court is unanimous in the view that the doctrine or principle of res ipsa loquitur should apply to the case under consideration.

For error ifi dismissing plaintiff’s petition, the judgment of the court of common pleas is reversed and the case remanded for further proceedings.

Judgment reversed, and cause remanded.

Grant and Dunlap, JJ., concur.


author: Walters, J.

text:
    Jones et al. v. The Ironton Garage Co.

      Lien — Attachment — Materialman — Effect of levying attachment.

    One having a lien upon property for labor and materials expended on it does not lose the lien by levying an attachment upon the property.
    (Decided March 21, 1918.)
    Error : Court of Appeals for Lawrence county.

      Mr. W. L. Elkins and Mr. Jed. B. Bibbee, for plaintiffs in error

      Messrs. Andrews & Irish, for defendant in error.
   Walters, J.

This was an action below in replevin, but the property was not taken possession of by the garage company, because no bond was given, and the action proceeded as one for damages.

The chief principle involved, and the only one argued before this court, is 'that of a waiver of a lien for labor and materials. The waiver was not pleaded, though the want of such pleading has not been argued or presented to us.

One Deffner owned an automobile and placed it with the garage company for repairs. Labor and materials were expended upon it to the amount of $41.70. The plaintiff in error Wilbur Jones attached the automobile in the hands of the garage company for’ a debt due Jones from Deffner, the owner. The garage company then attached the automobile for its debt. George McKee, as constable, levied -on the automobile for Jones and for' the garage company, leaving the ‘automobile all the while in the possession of the garage company. The garage company claimed that it retained possession of the machine at all times until the constable broke the lock and took it by force. The testimony on this point was conflicting, but the jury by their verdict found that the g'arage company had possession under the charge of the court, and we could not say that their verdict in that respect is manifestly against the weight of the evidence. We proceed, therefore, on the fact, so found by the jury, that the possession was at all times in the garage company and that its common-law lien for labor and materials was preserved to it.

Did the garage company waive its lien by procuring an attachment on the automobile? There is a conflict in the authorities. None has been found in Ohio by counsel on either side, or by ourselves. The nearest case is that of Green v. Bass et al., 83 Ohio St., 378. The syllabus is as follows:

“The owner of a senior chattel mortgage does no't, by recovering a judgment on the note which it secures and causing execution to be levied on the chattels mortgaged, waive the priority of his lien.”

Judge Shauck, at page 384, makes use of the following expression:

“Why should not that which Was a security before the recovery of a judgment be, a security after it ? - The plaintiff did not, in any way, change his position in consequence of the recovery of that judgment, nor was he, in'any way, affected by it. No reason appears' why the case should not.be governed by the general rule that a security continues until the discharge of the obligation.”

I’t is only by reasoning by analogy that this case throws any light on the subject.

Lambert v. Nicklass, 44 L. R. A., 561 (45 W. Va., 527), is directly in point. The syllabus is as follows:

“1. One who keeps a horse or other live stock for compensation has a lien thereon for such compensation by Code 1891, chap. 100, sec. 15.
“2. An innkeeper or keeper of live stock who has a lien on the property does not lose the lien by levying 'an attachment upon the property.”

At page 564, Justice Brannon says:

"But it is said that Lambert waived or forfeited his lien by bringing action for the same demand before a justice, and levying an attachment upon the property. First, it is argued that judgment in this action merged and destroyed the lien. Judgment does not merge the cause of action, so that it cannot be sued on again; but I understand that in law the debt is one thing and its lien on given property another thing, and that judgment does not destroy the lien. The creditor may enforce both, and his election of one does not exclude the other as a remedy.
“ ‘Though the debt is merged in the judgment its nature is not destroyed or affected; and, if the debt was one, for which a lien was given at common law or by statute, the- lien continues after judgment/ 1 Jones, Liens, Sec. 1032a. * * *
"As to the 'clause from Jones, that ‘the attachment is in effect an assertion that the property attached belongs to the defendant/ I will say that there is no force in it, .because by claiming a lien the plaintiff asserts that it belongs to the defendant as much as by attaching it. He asserts the same thing by both lien and attachment, and no estoppel can, therefore, be based upon any contradiction between the two. * * *
“In Arendale v. Morgan, 5 Sneed, 703, the question is considered, and the court refused to follow that doctrine, and held that where one bas property in pledge for debt, and parts with possession with intent to abandon the lien, as if he agrees that it be attached at the suit of a third person, it is gone; but not so where he attaches for his own debt. This is the true proposition.
“To sustain this loss of lien we must place it on one or the other of two ideas, — intentional waiver, or from loss of possession. As to the first, authority is abundant to show that one will not be held to waive a lien unless the intent be express or very plain and clear. The presumption is valways against it. Merely taking. a new security does not, * * *
“An innkeeper having a lien has no right to sell the property without a judicial proceeding. If he does, he is liable to an action of trover for .its unlawful conversion, besides losing his lien. His only remedy is to hold it till payment. Unreasonable this is; but, where no statute can be found providing for a sale, it is so, by much- authority * * * In fact, on the mere strength of lien, he can sue neither at law nor in equity, if there is no statute to allow it. It is different from a pledge or pawn.”

In 50 L. R. A., 720 (note to Whitaker v. Sumner, 20 Pick., 399), these observations are made:

“This qualification of the general doctrine seems to make the question as to the waiver or non-waiver of -the lien dependent upon the facts of the case with reference to the lienor’s intention and character of the levy, and has the direct support of Danforth v. Denny, 25 N. H., 155, where it was held that a pledgee of goods did not waive the lien of his pledge by attaching the goods, as further security for the debt pledged, without any intention of abandoning such lien, it appearing that the attachment was levied and the property sold, subject to the lien, and that the officer never took possession, but only got such right as could be taken while the pledgee kept possession.”

In Townsend v. Newell, 14 Pick. (31 Mass.), 332, is found the following:

“Where goods in the possession of a party who had a lien on them, were attached, and he receipted for them to the officer, under an agreement that he should continue to retain for his lien; and after-wards they were attached at his own suit, and he receipted for them, still asserting his lien, it was held that the lien was not discharged:”

In West v. Flemming, 68 Am. Dec., 539 (18 Ill., 248), the syllabus reads:

“A creditor may proceed against the debtor by attachment, and by enforcing mechanic’s lien, as concurrent remedies; and he does not waive his lien by so doing.”

In-the opinion, the court say:

“The only questions important for determination are, whether Flemming, by his attachment waived his lien under the mechanic’s lien law, or was precluded thereby from proceeding under that law; and whether the court erred in decreeing a sale by the commissioner, without giving the statutory right of redemption.
• “The proceeding under the statute is additional, or cumulative of such other remedies for enforcement of the contract out of which the lien arises as the party may have, either against person or property.
“He may, therefore, at the same time pursue several remedies for satisfaction of one debt, which are not substantially the same in their nature and effect; as, a proceeding against property, and an action against the person, or two proceedings against different properties or things; but can have one satisfaction only.”

To the same effect is Angier v. Bay State Distilling Co., 178 Mass., 163, 170.

In Salt Lake Litho. Co. v. Ibex Mine Co., 49 Pac. Rep., 768 (15 Utah, 440), it was held that a lien for lumber used ,in a structure was not waived “by the levy of an attachment, afterwards dismissed, on the same property, to secure the same demand.”

Also Martin v. Becker, 146 Pac. Rep., 665 (169 Cal., 301):

“The right to enforce a mechanic’s lien is not lost by the fact that the lienor, by levying an attachment upon other property, thereby obtains additional security.”

In Townsend v. Newell, supra, the court laid great stress on the intention of the lienor — whether or not he intended to release his lien by suing out the attachment. This was the point emphasized also in Lambert v. Nicklass in declaring “that his attachment itself speaks the negative.”

The jury have found that the possession was at all times in the garage company, thus manifesting an intention on its part to assert its common-law lien.

There is no provision by statute for the foreclosing of a common-law materialman’s lien, and all the lienor can do is to hold the property until the owner comes for it and retain possession until payment is made, for if he sells it he is liable as for conversion. By issuing the attachment he could furnish a vehicle by means of which the property could be sold, and he could realize his money. Blackburn v. Peoples, 8 Ohio App., 165.

In most of the cases cited by plaintiffs in error a materialman’s lien is a creature of statute, while in Ohio it exists by virtue of the common law. In other states there is a statutory remedy to enforce a statutory right; in Ohio there is none. The remedy by attachment is merely cumulative. City of Zanesville v. Fannan, 53 Ohio St., 605, and Darling v. Peck, 15 Ohio, 65.

There are some authorities that hold to the contrary, but the weight of authority and reasoning is that the levy of an attachment upon the same property does not waive the lien of the material-man.

Besides, Section 10286, General Code, ■ provides:

“When property is attached in the hands of a consignee, or other person having a prior lien, 'his liens thereon shall not be affected by the attachment.”

This provision, it seems to us, would preserve the prior lien of a materialman in all events. In suing out the attachment the remedy by attachment was merely cumulative; and, since the jury has found that the garage company had possession all of the time, its lien, was reserved to it by the express provisions of the statute above quoted.

The judgment below will, therefore, be affirmed

Judgment affirmed.

Middleton and Sayre, JJ., concur.


author: Richards, J.

text:
    The Toledo Terminal Railroad Co. v. Mauk et al.

      Railroads — Liability for fires — Section 8970, General Code — Subrogation of insurance companies — Joinder of plaintiffs — Evidence— Sparks from locomotives■ — Similar occurrences■ — ■ Expert testimony — Experiments- — ■ Noninfiammability of materials.

    1. Section 8970, General Code, creating .an absolute liability against a railway company for loss of property by fire, on evidence showing that the fire originated from sparks from an engine passing over its tracks, inures both to the owner of the property destroyed and, by way of subrogation, to insurance companies making payment to the owner for loss under policies of insurance issued by them, and the owner and insurance companies may join as parties plaintiff in an action to recover losses so originating.
    2. Under the rule allowing the owner of property destroyed by fire from sparks from passing locomotives considerable latitude in showing the particular circumstances existing from which the fire is caused, evidence that more .than one locomotive of the defendant company emitted sparks on various occasions is not prejudicial in an action under Section 8970, General Code, to recover for fire loss from sparks emitted by a lbcomotive sufficiently identified as being in fault on the occasion in issue.

      3. In an action for fire loss from sparks from a locomotive, evidence of experiments made by expert witnesses, called by a defendant railway, to establish that certain substances placed along its right of way would not take fire from sparks, when not under conditions similar to those existing at the time of the fire complained of, is properly excluded.
    (Decided June 24, 1918.)
    Error : . Court of Appeals for Lucas county.

      Messrs. Potter & Carroll, for plaintiff in error.

      Mr. Elmer E. Davis; Mr. J. W. Mooney and Mr. G. E. Bibbce, for defendants in error.
   Richards, J.

Clinton A. Mauk was the owner of a large quantity of lumber, and the operator of a lumber yard, all situated in the northerly part of the city of Toledo, most of the lumber being in two large sheds owned by the Ann Arbor Railroad Company, and a portion being in another shed owned by Mr. Mauk. These sheds were located near various switching tracks of The Toledo Terminal Railroad Company and other switching tracks of the Ann Arbor Railroad Company. The property was destroyed by fire on the night of October 15, 1916, the fire resulting in nearly a total loss. The property owned by Mr. Mauk was insured in several insurance companies to the amount of $38,000, and this amount was paid by these companies to him. Thereupon Mr. Mauk and the nine insurance companies united as plaintiffs in an action against The Toledo Terminal Railroad Company to recover the value of the property destroyed by fire, the insurance companies •claiming to be subrogated to the rights of Mr. Mauk .to the extent of the sums paid by them severally. The petition was met by a motion to separately state and number the causes of action and to make more certain and definite, which motion was overruled by the co.ur-t. Thereupon the defendant filed a demurrer to the petition on the grounds of a misjoinder of parties plaintiff, and for the reason that several causes of action were improperly joined, and for want of facts. This demurrer was overruled and an answer filed by the defendant. A trial of the case resulted in a. verdict and judgment being rendered in favor of the plaintiffs in the amount of $70,000. We are asked to reverse this judgment for various reasons, but chiefly because it is claimed that the court erred in overruling the motion and demurrer, because the judgment is not sustained by sufficient evidence, and because the court erred in the admission and exclusion of evidence and in the charge to the. jury.

We have no difficulty in reaching the conclusion that the petition sets forth but one cause of a'ction and that the same is set out with sufficient certainty. There was but one fire pleaded, and that -is averred to have been caused by sparks emitted from an engine of the railroad company. The cause of action was based on a single wrongful act. The owner of the property was, of course, the primary sufferer by reason of -the fire, and no doubt can exist but that the insurance companies upon making payment under, the policies issued by them became subrogated to the rights of the assured to the extent of the payments so made. The averments of the petition show that the loss largely exceeded the amount of the insurance, and' it is therefore clear that not only the owner but the insurance companies were interested in maintaining a suit against the defendant.

While there are some differences in detail between this case an'd the case -of The L. E. & W. Rd. Co. v. Falk and The Phoenix Insurance Company, 62 Ohio St., 297, and while there has been some change in the statute since the announcement of that decision, yet the principles therein set forth indicate very clearly the rules «which should govern in the case at bar. It is claimed that under the statute, as it now reads, Section 8970, General Code, the railroad company is liable to the owner of the property absolutely, but that the liability to the insurance company arises only on averments and proof of negligence on the part of thé railroad company. It is true that the statute cited provides that- the company shall be liable for all loss or damage by fires originating on adjacent lands, caused in whole or in part by sparks from an engine passing over such railroad, and the exercise by such company, or receiver of' such company, of due care in equipping and operating such engine shall not exempt sufch company, or receiver of such company, from liability. This statute does create as against the railroad company an absolute liability, on evidence showing that the fire originated from sparks from an engine passing over its railroad; but when an insurance company, having a policy upon property destroyed by fire from sparks coming from an engine passing over a railroad adjoining the property, has made payment under its policy, it is by general principles of equity subrogated to the rights of the assured and that subrogation is to all the rights of the assured as against the railroad company to the extent of the amount paid by the insurance company. It would seem clear, therefore, that the statute inures to the benefit of the insurance company so making-payment as well as to the assured.

, Manifestly all thq rights given by the statute could be secured by the owner bringing- an action against the railroad company, which is claimed to have caused the fire, in which action, whether he had received the amount of the insurance on the property or not, he would be entitled, if the proof showed liability, to recover the full value of the property destroyed, and this would raise an equity in favor of the insurance companies against the assured in the fund received by him from the railroad company. Furthermore, a person whose property is insured, who suffers loss by reason of a fire, has a right to assign his cause of action, and the assignee would be entitled to all -the benefits conferred by the section of the General Code above cited; and, clearly, whatever rights could be acquired and enforced indirectly may be enforced directly in an action by the assured and the companies which have made payment under their policies. In truth, the action at bar is an action by the owner of the property to recover the full amount of the loss from the railroad company; and the fact that the insurance companies are united with him as coplaintiffs can in no manner prejudice the rights of the railroad company, but enables the court to adjust the equities of the plaintiffs among themselves.

The rule is stated in 1 Clement on Fire Insurance, 369, as follows:

“When a statute or code of practice authorizes suit in name of real party in interest, and a number of insurance companies are subrogated as equitable assignees to rights of insured as against a railroad company, they may properly be joined as plaintiffs in an action against the latter to recover the loss or damage. If the insured has any interest or his whole loss was not paid by the insurance companies, he should be also joined as a party to the action, either as a plaintiff by his consent or as defendant if he refuses.”

We hold, in view of reason and authority, that the owner and the insurance companies which have made payment may unite in an action against the railroad company, where the total loss suffered exceeds the amount of the insurance on the property. It follows that the court committed no error in overruling the motion directed to the petition, nor in overruling the demurrer thereto.

A lárge mass of evidence was taken in this case bearing upon the manner in which the fire originated which caused the destruction of the property. The evidence shows that the fire originated in or near what is known as shed No. 1, one end of which was located within twenty-five or thirty feet of the tracks of the Terminal Railroad Company, and that the fire spread from this shed to the other two, resulting in the destruction of all of them. These sheds were constructed of lumber, and shed No. 1 had an open unboarded space about nine feet from the ground extending the entire distance around it.

The fire started about midnight on the night of October 15.. It is in evidence that there had been no fires in these sheds during that fall, and, although there was a stove in one of them, that no fire had been built therein since the preceding spring. Shortly before twelve o’clock on the night in question a switching engine belonging to the Terminal Railroad company passed back and forth by this property several times, part of 'the time hauling a train of cars and part of the time without any load The engine was observed by a watchman, located in the vicinity, who testifies that when loaded the engine continually threw sparks; that he observed it on that night and 'had on numerous occasions prior to that time; and that the terminal engines all threw sparks when “working heavy and exhausting.”

The evidence shows beyond question that the wind on that night was blowing ¡at- the rate of fourteen to fifteen miles per hour and in the general direction from the terminal tracks toward these lumber sheds. The evidence disclos'es that the Ann Arbor Railroad Company had no engine in operation during that day or night in this neighborhood except a passenger engine which traveled along the main track, many hundreds of feet distant from the shed in which the fire originated, which engine passed some hours before the fire was seen. There is no evidence in the record showing any fires in that neighborhood during the day or night of the 15th of October except the sparks flying from the engine of the Terminal Railroad company. It also appears that an employe visited the yards at four o’clock on the afternoon before the fire and found the buildings locked. We have no hesitancy in reaching the conclusion that the jury was entirely justified in finding that the fire originated from sparks coming from this engine. Indeed, we do not see how they could have reached any other result from the evidence contained in the record.

In the case of L. S. & M. S. Ry. Co. v. Anderson, 17 C. D., 577, the circuit court held that a jury is warranted in finding that a fire originating on land adjacent to the railroad company’s right of way was started by sparks emitted from 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 from the railroad toward 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. All of the requirements mentioned by the court uTthat case exist in the •case at bar, and we are not, therefore, able to say that the verdict is not sustained by sufficient evidence.

It is said, however, that the verdict against the railroad company was produced because the court permitted the plaintiffs to introduce certain incompetent evidence and excluded from the jury certain competent evidence offered on behalf of the company. The evidence which the court allowed to be introduced, and ag'ainst which objection is especially made, related to the engines of the Terminal Railroad company throwing sparks on other occasions within two or three weeks prior to the time of this fire. In view of the fact that the particular engine which passed along this track on that night was identified, we see no necessity for the plaintiff to introduce evidence that was ¡broad enough to include any other engine than that one; but the evidence which was introduced did, in fact, include engine number seven, which was the one that passed the sheds on the occasion, and we can see no prejudice resulting to the railroad company by the inclusion of evidence showing that other engines of the company also emitted sparks.

The courts have frequently indicated that in an action brought by a landowner to recover for" destruction of his property by fire claimed to have been caused by sparks from passing engines considerable latitude should be allowed because of the usual inability of the plaintiff to specifically show the particular circumstances existing which caused the fire. This principle is stated in The Lakeside & Marblehead Rd. Co. v. Kelly, 6 C. D., 555, and was recognized by this court in The Hocking Valley Ry. Co. v. James, Trustee, 1 Ohio App., 335. The case of The Hanover Insurance Co. et al. v. • C., H. & D. Ry. Co., 2 Ohio App., 136, decided by this court, contains nothing inconsistent with what has just been stated: In that case, as in this, we recognize that there should be either direct proof of facts establishing the plaintiff’s case, or proof of 'facts from which liability may be reasonably presumed, and that there can be no guessing by either court or jury.

The trial court excluded evidence of the results of certain experiments made by expert witnesses, called by the railroad company, to establish that' certain substances placed along the right of way would not take fire from sparks emitted from passing engines. An examination of the evidence and offers to prove contained in the bill of exceptions shows that the experiments sought to be proven were not made under conditions sufficiently similar to those existing at the location of this fire and at the time of its occurrence to render the results of the experiments competent evidence. The inherent difficulty of reproducing conditions similar to those existing at the time and place of the fire made it practically impossible to render experiments of value to the jury in ascertaining whether the property of Mr. Mauk was set on fire by sparks from the railroad company’s engine. It is said in 3 Jones on Evidence (1913 eel.), Section 410, that testimony ought not to be received as to experiments unless it shows they were made under such conditions as to fairly illustrate the point in issue; and that from the nature of the case the decision of this question must rest largely in the discretion of the trial judge. We find no prejudicial error in excluding evidence of the results of experiments made by these witnesses.

The railroad company sought to offer evidence that the lumber yards of Mr. Mauk had been, before the occasion of the fire, frequented by tramps and loafers and that fires 'had been seen in the yards on various occasions. This evidence was excluded by the trial, court and is assigned as error. It must he noted that the trial judge did not exclude evidence as to whether any person had been in or about the yards or buildings on the day or night when the property was destroyed by fire. On the contrary, the trial judge allowed evidence concerning some unknown man passing along a path through the Mauk lumber yards at about the hour of eleven o’clock on the night of October 15. The evidence which was excluded related to times prior to the day of the fire, and no offer was made to show the existence of any fire in or adjacent to the yards on October 15, or of tramps or other persons being in or about the same on that day. Furthermore, the railroad company did not offer to show the character or extent of any fire which had been theretofore seen in the lumber yards, nor that the same was caused by any improper person; for aught that appears in the questions and offers to prove, the fires which were seen may have been started by Mr. Mauk himself, or his employes, in cleaning up the lumber yards, and may have been, and doubtless were, entirely under control. If all the evidence which was offered by the railroad company on this branch of the case had been received, it would only have shown that on prior occasions tramps and loafers had been seen in the lumber yards and that fires had been seen there prior to the 15th of October, and from this evidence the jury could only have been asked to guess that the fire which destroyed the property might have originated from tramps or loafers starting fires on the premises. We think such evidence would not tend to show that the fire which originated on the night of October 15 was caused in that manner. A test of the admissibility of such evidence may be made by applying the rule to the plaintiffs in the trial court, by assuming that plaintiffs were able to show only that engines of the railroad company were accustomed to emit sparks when hauling loads through these yards and on these switch tracks without ¡being able to show that any engine had passed along the track near these yards on that day or evening. In such event the plaintiffs manifestly would have fallen far short of making a case, and the jury could have only rendered a verdict in favor of the plaintiffs on such a showing by guessing as to the origin of the fire. For all these reasons we find that the trial court committed no error in excluding the '.class of evidence mentioned.

The defendant railroad company introduced evidence showing that the engine crew of the railroad •company, after observing the fire, rode on the engine to the vicinity of the fire, and the court ■permitted them to describe the conditions that they found existing at the time of their arrival, but •excluded evidence of the purpose for which they had come. The offer made shows that the company desired to prove that they had come to the fire 'with apparatus attached to their engine for the purpose of aiding in extinguishing the fire, but were unable to use the same because the fire was then in the end of the shed most distant from the railroad tracks. The trial court committed no prejudicial error in excluding the purpose which the engine crew had in mind in going to the fire, for that purpose could not.aid the jury in ascertaining the liability or nonliability of the railroad company. The particular location of the fire was permitted to be shown by all witnesses who had knowledge of the same. It is not controverted that the shed in or near which the fire originated was . three hundred and fifty feet in length, and if the fire was, as claimed 'by the railroad company, in the farther end of the shed,, it, of course, could not have been reached by the- hose attached to the locomotive engine; and the purpose of the engine crew was immaterial.

Finding no prejudicial error, the judgment will be affirmed.

Judgment affirmed.

Chittenden and Kinicade, JJ., concur.


author: Houck, J.

text:
    Siber et al. v. The State, ex rel. Hershey et al.

      Schools — Transportation of pupils — Mairdamus to compel — Section 7731, General Code (107 O. L., 625) —Necessary parties — Evidence to maintain action — Proof of default of duty.

    1. Section 77-31, General Code (107 O. L., 625'), makes the county-board of education the real party defendant in an action to compel the conveyánce of pupils of school age residing within a school district to some other school within the rural school district, and failure to make said county board a party defendant leaves the petition open to- demurrer.
    2. Furthermore, the absence of any evidence of notice to the county board, or of knowledge on its part, of refusal by the township board to convey the pupils in question to some school in said district, is fatal to an action in mandamus to compel provision of such service, under the rule that in a proceeding to compel an officer to do an act, which it is claimed the law enjoins upon him, the existence must be shown of all. facts necessary to put him in default.
    (Decided June 26, 1918.)
    Error: Court of Appeals for Tuscarawas county.

      Mr. E. E. Lindsay, prosecuting attorney, and Mr. E. C. Seikel, for plaintiffs in error.

      Mr. C. L. Cronebaugh, for defendants in error.
   Houck, J.

The original suit was one in mandamus, in which it was sought to compel the defendants below, the plaintiffs in error here, as members of the board, of education of Dover township rural school district' of Tuscarawas county, Ohio, to re-establish what was formerly known as -“Sub-district School No. 12” or to convey the pupils of school age residing therein to some other school within said rural school district.

A demurrer was filed to the petition, stating four grounds:

1. That the facts stated in the petition were insufficient in law.
2. Defect of parties plaintiff.
3. Defect of parties defendant.
. 4. That plaintiffs had no legal authority to bring suit.

The trial judge overruled said demurrer, and exceptions were taken to same. Answer was filed, which in substance was a- general denial.

Trial was had and the petition was dismissed as to the question of re-establishing such- reputed Sub-district School No. 12, but judgment was entered for plaintiffs, allowing a peremptory writ of mandamus against the members -of the board of education of the Dover township rural school district, ordering and directing said board of education to convey said pupils of school age to the nearest school in said Dover township rural school district.

We have carefully read the testimony in the case, as contained in the bill of exceptions, and have made an examination of the record here presented, for . the purpose of determining whether or not there is such error prejudicial to the rights of plaintiffs in error as would authorize a reversal of the judgment.

In our opinion the judgment of the common pleas court should be reversed for two reasons:

There is a misjoinder of parties defendant. The real party defendant should be the county board of education of Tuscarawas county, Ohio. We reach this conclusion because of the provisions of Section 7731, General Code, as found in 107 Ohio Laws, 625, which reads:
“When local boards of education neglect or refuse to provide transportation for pupils, the county board of education shall provide such transportation and the cost thereof shall be charged against the local -school district. When the county board of education certifies to the county auditor the amount paid for such transportation the county auditor shall transfer such amount from the funds due the said board of education to the county board of education fund.”

The undisputed evidence is that a demand was made upon the board of education of Dover township rural school district, but none was made upon the county board of education, and there is an entire -absence of proof, -showing or tending to show, that the county board of education had any knowledge whatever of the failure or refusal of said board of education of Dover township rural school district to convey the pupils in question to some school in said district. Applying the statutory law just quoted to these facts we feel the conclusion above reached is sound.

We hold the rule to be well established that in a proceeding by mandamus to compel an officer to do an act which'it is claimed the law enjoins upon him, the existence of all the facts necessary to put 'him in default must be shown.

Testing the evidence in this case by the rule of law thus laid down, we find that it does not meet requirements, and, therefore, the trial judge was in error in entering the judgment in the present case.- The errors referred to being prejudicial to the rights of the plaintiffs in error, the judgment of the common pleas court must be revérsed.

Judgment reversed and cause remanded for further proceedings according to law.

Powell and Shields, JJ., concur.