text:
    OBEDIENCE OF A SERVANT TO AN ORDER INVOLVING DANGER. _
    [Circuit Court of Hamilton County.]
    James W. Crockett v. John H. Michael.
    Decided, December 19, 1906.

      Master and Servant — Negligence—Servant Injured while Executing an Order Involving Danger — Liability of Master.

    Where a servant is injured while endeavoring to execute an order involving obvious danger to himself, the question whether or not he was justified in obeying the instructions given him by the master is one which should be left to the jury.
    ' The plaintiff while employed in the wagon factory of the defendant was directed by the defendant,, in person, to assist in taking the “taps” or burrs from the axles of a wagon and raise it to the second floor on the elevator. The taps were removed, and the wagon was then run onto the elevator which was raised by a rope running over pulleys. When five or six feet high one of the wheels, having no tap or burr to hold it on, came off and fell to the floor. Plaintiff was struck by it and his leg was broken. TIis suit was for damages, based on the alleged negligence of the master. The trial judge granted a motion to take the case from the jury.
    Swing, J.; Jelke, J., and Giffen, J., concur.
    This case should be reversed on the authority of The Venn Duzen Gas é Gasoline Go. v. SchcUes, 61 O. S., 298. At page 809, the court says:
    “The clear result of the best considered cases is that when an order is given a servant by his superior to do something within his employment, apparently dangerous, and in obeying*he is injured from the culpable fault of the master, he may recover, unless obedience- to the order involved such obvious danger that no man of ordinary prudence would obey it; .and this is a question of fact for the jury to determine under proper instructions, and not of law for the court.”
    It was certainly negligence of the master to order the taps taken off the axles before elevating the wagon as shown by the evidence. Whether the plaintiff was justified in executing the order of Michael, the master, with a knowledge of the obvious danger, was a fact which the court should have left to the jury.

      David Davis, for the plaintiff in error.

      Robertson & Buchwaller, contra.


source: Caselaw Access Project

license: Public Domain

text:
    CERTIFICATE OF BENEFICIAL INSURANCE.
    [Circuit Court of Ross County.]
    The Brotherhood of Railroad Trainmen v. Jane Taylor, Administratrix, et al.
    Decided, December 8, 1906.

      Beneficial Insurance — Certificates of. How Construed — Rules Governing Ordinary Life Insurance not Applicable — Classes to Whom Certificates Must be Paid — Certificates made Payable to Wife whcX Secures a Divorce — Does not Lapse or Revert — But is Payable to the Administrator — Mutual Benefit Societies — Sections 3631, et seq.

    On February 23, 1901, T became a member of a fraternal beneficiary association organized under Section 3631-11, Revised Statutes, and secured a certificate payable at his death to Alice B. Taylor, his wife, if living; if not, to his executors or administrators in trust for his heirs at law. Subsequently, in 1903, his wife secured an absolute divorce and was restored to her maiden name. On December 8, 1905, T died intestate, having paid all assessments up to his death and having failed to designate another beneficiary. T left surviving him the plaintiff, who was his mother and only heir at law. In a suit to recover death benefits wherein the divorced wife, the administratrix, and the association each claimed the same — Held:
    1. Certificates issued under Sections 3631-11 et seq., must be made payable to such of the classes named therein; any other designation is invalid.
    2. Having secured a divorce subsequent to the issuance of the certificate, that fact precluded her from recovering benefits as wife or beneficiary.
    "3. Under the laws of Ohio, beneficiary certificates are to be construed with reference to the status of the beneficiary at the time of payment. The words “Alice B. Taylor” in the certificate are descriptio personae and may be rejected as surplusage and the certificate is construed to mean that if there be no wife living, the benefits go to the administratrix in trust for his heirs.
    4. Under the laws of this state as well as by the construction made in prop. “3” hereof, said certificate neither lapses nor reverts to the association, but should be paid to the administratrix.
    Jones, J. (orally); Ciierrington, J., and Walters, J., concur.

      Heard on error to the Court of Common Pleas of Ross County.
    This case came into this court on error from the court of common pleas. In that court the issues were decided upon various demurrers to the pleadings. The facts in the ease were not in dispute but were all admitted by several demurrers. Briefly stated, the facts are these:
    On February 18, 1901, William Taylor became a member of the Brotherhood of Railroad Trainmen, a beneficial organization organized under the laws of this state. At that time he was married to Alice B. Taylor, and he obtained a benefit certificate payable at his death to Alice B. Taylor, his wife, if living, if not, then to his executors or administrators in trust for his heirs at law. Subsequently, in the year 1903, his wife secured an absolute divorce and was restored to her maiden name. Taylor, however, continued to pay his assessments and paid the same up until his death, which occurred on December 8, 1905. He left surviving him the plaintiff in this case, Jane Taylor, -who was his mother and his only heir at law. At no time did he make any other substitution or designation of the beneficiary other than the original one he designated wdien the certificate was issued to him.
    Three claimants to the fund appear, each of whom claims the death benefit. The petitioner, who is the administratrix, his mother, Jane Taylor, is one of the claimants who has filed her petition claiming the fund in trust for herself as the. sole heir at law. By the answer and cross-petition, Alice B. Taylor, the divorced wife, also claims the death benefit and by answer the association itself claims the death benefit by reason of the fact that the certificate is said to have lapsed or reverted to the association under one of the clauses of the constitution. The brotherhood and the plaintiff each demurred to the answer and cross-petition of Alice B. Taylor, and the plaintiff demurred to the answer of the brotherhood. The court of common pleas sustained each of these demurrers. The question before this court is whether the action of the court of common pleas is right in that regard. In so far as the determination of the questions in tliis ease are concerned, T will briefly give so much of the sections of the constitution of the order as are necessary to determine the questions at issue.
    ■Section 65 provides that all beneficial certificates are to be interpreted and construed in accordance with the laws of this state.
    Section 62 provides that all transfers of beneficiary certificates shall be made upon the' books of the grand lodge, under the direction of the grand secretary and treasurer, and any and all transfers made in any other manner shall be null and void. Any member desiring to transfer his beneficiary certificate, shall fill out the printed transfer on the certificate and sign his name thereto, and send the same to the grand secretary and treasurer, through the secretary of his lodge. It shall be the duty of the grand secretary and treasurer, immediately upon its receipt, to certify to such transfer in the form provided therefor in the certificate, and until so certified by the grand secretary and treasurer the transfer will not be complete.
    Section 63 provides that payment of death benefits shall only be made, or certificates transferred,'to the family, heirs, blood relations, affianced wife of, or to persons dependent upon the member, and in case the member makes an unlawful designation in violation of this section, the benefits of his certificate shall revert and belong to this brotherhood.
    Sections 66 and 67 provide that upon the death of a brother in good standing, the person or persons named in the beneficiary-certificate of the deceased brother, if living, shall be entitled to the benefits except as otherwise provided in Sections 62 and 63.
    In the determination of this case it may be said at the outset that the various rules of law applicable to ordinary life insurance eases do not apply in this case for the reason that under Section 3631-11 it is provided that such associations shall be exempted from provisions of the insurance laws of this state and no law hereafter passed shall apply to them unless they be expressly designated therein. It has been decided by two other authorities in the state of Ohio that the ordinary rules of construction find interpretation applying to ordinary ]ife insurance companies do not apply here. State v. P., C., & St. L. By., 68 O. S., 9; State v. Vorys, 69 O. S., 65, 68.
    In ordinary life insurance companies it is well known that policies issued in that class of companies confer upon the beneficiaries a vested interest and that a member can not transfer or interfere in any wise with that vested interest without the consent of the beneficiary, but the entire weight of authority is that in these beneficial associations, when the policy issues to the beneficiary, there is .no vested interest and that the member at any time may change his beneficiary or make a new substitution without the consent of the beneficiary named. So that in determining this question we think that the principle may be gathered from Section 3631-11 of the Revised Statutes. That section provides that payments of death benefits shall be to the families, heirs,. relatives by blood, affianced wife of, or to persons dependent upon the member. The certificate in question, as will be noticed, was made payable to Alice B. Taylor, his wife, if living, and if not living, it was to be paid to the administratrix in trust for the heirs of the member. The main question here is whether or not this certificate shall be construed according to its terms.at the date of issue or whether we shall construe this policy, and change in effect its character and meaning, by construing it as of the date of the payment of the benefits. For if it be construed as at the date of issue, Alice B. Taylor was then his wife and under the contract terms of the certificate should be paid. And if it should be construed to take effect at the date of payment and to take effect only to one of the persons named in this section of the statute, then it is very evident that Alice B. Taylor can not take, although the certificate in express terms provides that she may, and therein lies, we think, the great or seeming conflict of authority of the various cases that have been cited to us upon both sides of this question. It is our opinion that when the statutes of Ohio provided that payment of death benefits shall be to one of the class named, that this certificate should be construed as of the time of payment and payable only at that time to one of the classes named in the statute, if there be any such.- In Tyler v. Odd Fellows Mut: B. Asso., 145 Mass., 136, it was held that a wife, by obtaining a divorce, lost her rights under the designation and that the attempted designation in that ease to the sister w&s invalid and that the son was entitled to the fund. It does not seem from the reading of this case that the statutes of Massachusetts controlled in any wise the determination of this case, but it was based upon the Wording of one of the sections of the by-laws of the order. The judge in deciding the case, however, says:
    “Assuming then, but not deciding, that the validity of a designation is to be determined at the outset, with reference to the relation then existing between the member and his beneficiary, we think, to make it available after his death, there must then be a relation to the deceased such as is contemplated by the agreement of association and the by-laws relating to payment. ’ ’
    ' As I say, this was not based upon any constitutional requirement of payment, but upon the requirement of the by-laws of the association, that payment at death be paid under the provisions of its constitution. In the ease of Sc-honfield v. Turner, 75 Tex., 324, the second proposition of the syllabus is that a divorced wife is entitled to no share of the benefit fund which, by the rules of the association, goes to the member’s heirs, no beneficiary having been appointed by it. Judge Henry uses the following language in the opinion:
    “What the policy of the law forbids to be done must be treated by courts, when administering the law, as never having been done. * * *
    “Upon the death of the member the beneficial interest vested in his heirs. When the person designated to receive the insurance is held by the law incapable of taking it for his own use, on grounds of public policy, it will be entirely consistent with the manifest purposes of the order to make the same disposition of the money that would have been made if he had been dead. ’ ’
    One of the strongest cases in support of the conclusion which we have arrived at, probably is the case of Order of By. Conductors v. Koster, 55 Mo. App., 186, but I will read only from the syllabus in this case:

      “1. A benefit certificate differs from an ordinary policy of life insurance, in that it speaks with reference to the conditions existing at the death of the member whose life has been insured by it.

      “2. Accordingly, when the status of the beneficiary under such certificate is the mean, if not the sole, inducement to the insurance, * * as where the certificate is in favor of the wife of the,insured and she is designated mainly by that relationship * # # -j^e rights of such beneficiary lapse, if that status does not exist' at the time of the death of the insured.
    “3. And when the laws of the benefit society stipulate that the beneficiary must have an insurable interest in the life of the insured member that interest must exist at the death of such member. Accordingly, a divorced wife who remarried, and moreover, has no living issue by the insured member, is not, under such laws, entitled to the benefit.”
    Now, in this state especially, we think that these cases are applicable to the case that we have at hand but, if anything, Ohio has a more stringent law upon that subject. The majority of these cases are based simply upon the constitution of the various orders, whose evident policy is, in each ease, to give the death benefits of the deceased member to some member of the family or blood relative or other person who is dependent upon him, but here, in addition to the language employed in Section 63 of the constitution of this order, we have a provision of statute that payment of death benefits shall be to the families, heirs, blood relations, affianced wife of, or person dependent upon the member. That was the purpose of the organization of beneficial associations of this character. The persons who become members of the order are usually men of limited means who contribute from their earnings for the purpose of keeping up these certificates and who expect either, during life, payment for somé physical disability, or, in case they die, that the benefit of the fund to which they have contributed shall be paid to some person dependent upon them. That was the purpose for which this provision was placed in this statute. In some other states no provision is made for this, but are usually found, as we have stated, in the constitution of the order. To the same effect is 1 Bacon on Benefit Societies, Section 253; Lisiar v. Lisiar, 72 Mo. App., 99. Now, then, we have come to the conclusion that if a member of a beneficial organization of this character attempts to make any kind of a designation to any person other than to the class mentioned in Section 3631-11, that such designation would be invalid and he has no power to make it, for the reason that I have stated, that that section requires that payment shall be made to the class mentioned. Since this certificate was issued and this organization was formed this section has been changed to some extent, but that change has not touched the spirit of the section, and it now provides that payment shall be confined to this class, but it has added one other' subject to the class, viz.: those related by marriage or adoption. That is the only change made in the statute since this certificate was issued. In support of the proposition that it is impossible for a member to name any person as beneficiary except as provided in this statute: National Mutual Aid Assn. v. Gonser, 43 O. S., 1; State, ex reí Atty.-Gcñ., v. Peoples’ Mutual Benefit Assn., 42 0. S., 579.
    In the latter case the first proposition of the syllabus is as follows and is very pertinent to the case at bar.
    Associations organized under the provisions of the law embodied in the Revised Statutes, Section 3630, ‘ for the mutual protection and relief of its members, and for the payment of stipulated sums of money to the families or heirs of deceased members,’ are not authorized to issue certificates of membership payable to the named beneficiary or ‘assigns,’ nor payable in case of death to others than the family or heirs of the insured member. ’ ’
    It would seem that the policy and spirit of this statute relating to these associations would be perverted if the members would be allowed to make what would originally be a valid designation to his wife, and that she should thereafter change her status, and become a divorced wife, and it would be doing indirectly what the policy of the law prohibits. The law provides only for the status of the beneficiary at the time the death benefits should be paid and we do not think that any of the cases cited by counsel upon the other side are in conflict with that clause, unless it be possibly one or two, and those are based upon a state of facts which are not controlled by the laws of the states in which they were decided but rather by the constitution or by-law provisions of the order. The eases cited by the counsel who contends that Alice was entitled to this benefit fall within two classes.
    First, they are that class of ordinary life insurance cases where the rules of ordinary insurance companies, such as found in 63 O. S., 77, govern, because there is a vested interest there, and which do not apply in this case, and furthermore, they do not apply because of the language of Section 3631-11, which limits the time of payment. And so, also, is the case of Com. Mut. Life Insurance Co. v. Schaefer, 94’ U. S., page 457. That is also a case in which recovery is sought against an ordinary life insurance company.
    Second, all the other cases are in the class where it appears from the opinion, that no statute controls and where the contract or certificate itself provides that the payment to the beneficiary shall be construed to be as of the date of issue of the policy and not of the date of the death. Brówn v. Granid, Lodge A. O. V. W., 57 AH, 176.
    There it does not appear there was any statutory provisions controlling the case, but in the third proposition of the syllabus this is found:
    “The by-laws of a beneficial association provided that the beneficiary might be either a member of the family of the insured, or one related-to him by blood, or one dependent upon him, but did not require that such beneficiary, at the time of the death of the insured, should belong to one of such classes.”
    We think here, if the Ohio statute means anything, that it requires the status to be fixed at the time of the death; but, supra, the judge says:
    “It should be observed, and it is important to keep in view the fact, that the laws of this .association do not require the beneficiary to belong to one of the specified classes at the death of the member, when the rights of the beneficiary become vested. ’ ’
    To the same effect is the case of American Legion of Honor v. Smith, 45 N. J. Eq., 466. . There the divorce was a divorce
      a thcro et mensa. It was not an absolute divorce from matrimony, and the court there held that the divorced wife had a right to the benefit because her property rights were not destroyed. She had all the rights of a wife and therefore that case is not applicable.
    In the Colorado case of Overliiser v. Overliiser. 59 Pac., 75, it does not appear there that any statute governed but that the by-laws governed there at the time of issue. On page 78 of that case you will find this language of the judge delivering the opinion:
    “In some of these voluntary associations, similar in character to this, it is provided that, in case the beneficiary named in the certificate shall die or become incapacitated to take, then, in either event, the fund shall go to certain other parties or heirs. There is not claimed to be any such provision in the by-laws of this association. Again, -in some, it is provided that no benefits shall be paid to any person unless such person comes within one of certain classes. There is no such provision here. In others, the statute laws of the jurisdiction, under which they are organized or operate, regulate the distribution of the fund, or impose restrictions upon the society in respect thereto. This is not the case here. The only requirement in this-ease, and that by the laws of the association, is that no certificate shall issue unless the beneficiary be named, and that such beneficiary be within one of certain classes. It will be seen at a glance that there is a wide distinction between a requirement that a certificate shall issue to only one of a certain class of persons, and one that payment can be made only to one of a'certain class. ’ ’

      James v. Supreme Council of the Royal Arcanum. 130 Fed., 1014, was a case in which one, though not a legal wife (the member had a legal wife living and had committed bigamy and married another), in good faith believed that she was his wife and had children by him who were supported by him. The member died and the court held that under the provisions of the statute that any person dependent upon the deceased member shall receive payment of death benefits, the plaintiff could recover as one of the persons dependent.
    In the case of Courtois et al v. Grand Lodge of A. O. U. W. of California et al, 67 Pae. Reporter, 970, from the reading of that case it does not appear that there were any state laws controlling the disposition of the fund or the payment of the fund at the death of the member. I read from the opinion of Judge Haynes:
    “The evident policy of the order is that the beneficiary named in the certificate when it issues shall be at that time of the class designated in said by-law, but beyond that it reserves no control, and makes no provision by which it may make or compel a new designation of a beneficiary, or by which it may itself appoint a beneficiary or cancel the certificate.”
    No statute controlling, the by-laws controlling only, in as far as it appears from the opinion, it was the policy to make the certificate control only at the time of issue. So that we have come to the conclusion that Alice, the divorced wife, has no right to the death benefits in question.
    The question then arises whether or not, under the provision of the constitution, Section 63, this certificate has lapsed or reverted to the society itself. That provision provides in case the member makes an unlawful designation in violation of this section the benefits shall revert and belong to the brotherhood.
    In the first place the member did not make an unlawful designation. When the designation was made it was .a lawful one. There was no act upon the part of the member making an unlawful designation. However, under our view of the case, even if -the member had made an unlawful designation and there were certain members of the family dependent upon him under Section 3631-11, then the proceeds would yet go to the one of the class therein named. It is said by some of the text-books, viz., Bacon on Benefit Societies and Life Insurance, Section 243a, that in cases of this character when there is a statute controlling and there is a lapse of the designation that the benefit generally will not revert to the society, but, as a matter of fact, a trust accrues in, favor of the classes named in the statute. This certificate provides as follows: “That at the death of the member the death benefits shall be paid to Alice B. Taylor, his wife, if living, if not, to the executors or administrators in trust for his heirs at law.” We think that in the construction of the contract here the words “Alice B. Taylor” should, be taken as descriptio personae, as designating merely her status at the time of issue and for the purpose of construing the contract should be treated as surplusage; if that be the case, this certificate would read that the death benefits should be paid to his wife, if living; if there was no living wife, then to the administrator in trust, and we are supported in this conclusion by the language of the judge in a 55 Mo. App. case, supra, when he says in the course of his opinion :
    “The rule of law of insurance, that, if one have an insurable interest at the date of the policy, the policy is not vitiated by termination of that interest, does not apply in a case like this. This act is testamentary in its character in the respect that it speaks at the death of the member. As long as. the lady who is now Mrs. Lally, filled the description given in the certificate, she was under its protection, but, when she ceased to fill that description, her interest in the certificate ceased. On the death of II. A. Koster, the certificate, speaking for the first time, called for his wife and there was none to answer.”
    And to the same effect, we think, is the text in Joyce on Insurance,' Section 818, where he says:
    “The effect of divorce seems to be to terminate -the. relation of ‘wife’ under a mutual benefit certificate, so that if a wife is designated and she obtains a divorce, she loses her right to claim any part of the fund. This rule rests on the ground that the status of the beneficiary, being the sole inducement for the insurance, the object of the benefit is and always remains in the person filling that particular status, and the name, when given, is a mere descriptive designation. And this rule has been supported where the payment is to the ‘heirs or members of his family.’ ”
    So that, in view of the authorities cited, and especially of the limitation placed upon these contracts by the statute of Ohio above referred to, we think that neither the divorced wife nor the association itself is entitled to the benefits arising from this certificate, but that they accrue to the administratrix in trust for the heirs at law.

      E. Jay Pinny, for plaintiff in error, the Brotherhood.

      W. D. Yaple, for defendant in error, Jane Taylor, Admx.

      W. W. Boitlger, for Alice B. Taylor.


text:
    QUESTIONS GROWING OUT OF A RAILWAY CROSSING ACCIDENT.
    [Circuit Court of Huron County.]
    Wheeling & Lake Erie Railway v. Parker, Administrator.
    Decided, 1906.

      Negligence — Accident at a Grade Grossing — View Obstructed by Oars— Evidence as to of Decedent on Former Occasions — Evidence as to Earning Capacity, Nature of Injuries, Speed of the Locomotive, Failure to Look and Listen — Conduct of Decedent after Getting upon the Track — Qualifications of Jurors — Allowance of Peremptory Challenges after Waiver of Right — Custom and Usage — Private Records — Experiments in Presence of Jury out of Court — Crossing Signals — Charge of Court — Words and Phrases.

      1. Mistaken ideas of a juror as to the effect of contributory negligence upon the liability of a defendant railway company, do not disqualify him from serving as a juror if he evinces an intention, when the true rule is stated to him, of regarding it in rendering his verdict.
    2. The temporary passing of the jury and waiver of the right to peremptory challenges by counsel for a plaintiff, does not deprive him of the right of exercising such challenges after challenge's for cause by the defendant, provided no injustice will result to the defendant.
    3. In an action for damages on account of the striking of the decedent by a locomotive at a grade crossing, testimony is competent as to the presence of a .side-track with cars standing upon it, which to some degree obstructed the view of the decedent as he approached the crossing; and records of the railroad company showing the presence of such cars is competent, although not produced by the party who .made the records.
    4. Evidence that the decedent was familiar with the crossing is competent, but evidence tending to show that he was guilty of negligence at the same crossing on previous occasions is incompetent.
    5. The fact that the home of the decedent was mortgaged is incompetent where offered in derogation of his earning capacity; the value of his business as a fire insurance agent is competent, as is also testimony by his wife as to his affability and other personal characteristics of assistance to him in securing business.
    6. Evidence by physicians as to the nature of the injuries inflicted is competent in so far as it may tend to show the speed of the locomotive, but is not competent for the purpose of exciting sympathy ■ or inflaming the minds of the jury.
    7. Whether running a locomotive at a given rate of speed across a street in a populous locality is negligence is a question for the jury under the evidence as to the circumstances surrounding the case; and so also the question of proper care in the matter of looking and listening on the part of one crossing a railway-track at grade.
    8. The statutory requirement as to signals- at a crossing is not exclusive, but failure to use ordinary care in the matter of warning signals renders the company liable, as does also failure on the part of the engineer and fireman to use ordinary care in kqeping a 'lookout,
    9. The refusal of the court to allow an experiment to be made outside of the court in the presence of the jury, but without the consent of both parties, is not error.

      A. Y. Andrews and W. R. Primer, for defendant in error:
    As to the duty of a railroad company to maintain a flagman or gates and a gateman at a crossing at grade in a populous locality. Glev., G., C. & I. Ry. v. Schneider, 45 Ohio St., 678; Pennsylvania, Ry. v. Matthews, 36 N. J Law, 531; New York, G. é St. L. Ry. v. Swartout, 14 C. C., 582.
    Not contributory negligence to approach a railway crossing in a city with a horse at a trot. Glev., C., G. <& I. Ry. v. Schneider, 45 Ohio St., 678; Cleveland, C. & I. Ry. v. Reiss, 13 O. C., 405; Balt. & O. Ry. v. Whitacre, 35 Ohio St., 627.
    Duty of one about to pass over a railroad crossing at grade to use his faculties for the purpose of avoiding danger. Glev., G. & G. Ry. v. Crawford, 24 Ohio St., 631; Clev., G., C. & I. Ry. v. Elliott, 28 Ohio St., 340; Pennsylvania Go. v. Rathgeb, 32 Ohio St., 66; Balt. & O. Ry. v. Whitacre, 35 Ohio St., 627; Cleve. Termu & Yal. Ry. v. Heiman, 16, C. C., 487; Lake Shore & M. S. Ry. v. Schada, 15 C. C., 424; New York, G. (& St. L. Ry. v. Swartout, 14 C. C., 582.
    Plaintiff in an action for damages sustained at a railway crossing need not show that he stopped, looked and listened, in order to free him from contributory negligence. Bali. & 0. Ry. v. Yan, Horn, 21 C. C., 327; Pennsylvania Go. v. Morel, 40 Ohio St., 338; Glev., G-, C. & I. Ry. v. Schneider, 45 Ohio St., 678; Schweinfurth v. Railway, 60 Ohio St., 215.

      More than, compliance with statutory requirements may be necessary to avoid liability. Elliott, Railroads, Sections 1114, 1155, 1156, 1157, 1158, 1159; Clev., G., G. & I. By. v. Schneider, 45 Ohio St., 678; Baker v. Pendergast, 32 Ohio St., 494; Grand Trunk By. v. Ives, 144 U. S., 408 (12 Sup. Ct. Rep., 679; 38 L. Ed., 485).
    Speed of trains at crossings. Elliott, Railroads, Sections 1160, 1161; Glev., G., G. él. By. v. Schneider, 45 Ohio St., 678.
    Opinions of non-professionals as to the rate of speed of a train. Balt, é 0. By. v. Sioliz, 18 C. C., 93; Balt, é 0. By. v. Schultz, 43 Ohio St., 270; Shelby (Vil.) v. Glagell, 46 Ohio St., 549; Clev., G. é G. By. v. Crawford, 24 Ohio St., 631; Balt, é 0. By. v. Van Horn, 21 C. C., 337.
    Wiudman, J.; Haynes, J., and Parker, J., concur.
    Error to Huron Common Pleas Court.
    The case of the Wheeling & Lake Erie Railroad Company against George C. Parker, administrator of the estate of Samuel F. Newman, deceased, is one in which a most marked feature is the voluminous record. It is very apparent that this case was hotly contested by the company and zealously pressed by the plaintiff.
    There are a large number of exceptions, amounting in all to 265. We have gone over them and have examined everything in the record connected with them so as to satisfy ourselves as to what the result was or should have been, but I will touch only on some of the more important points.
    It appears that on October 2, 1903, Mr. Newman was struck by a passing locomotive belonging to the defendant below, the Wheeling & Lake Erie Railroad Company, now the plaintiff in error, and that he was so injured that he died a few hours later at his home.
    His administrator, claims that his death was caused by the negligence of the defendant company without fault on his part. Mr. Newman at the time of this tragic occurrence was seventy-six years old; a man, as the evidence discloses, of more (;hf!ii t]]o iisiia] fiof'ivitjy nnr] vigor of ms» of 84v«cf4 years, although he had become quite seriously impaired in his hearing.
    The claims of the plaintiff as to the negligence of the defendant are disputed by the defendant below, and it in turn asserts that the negligence, if there was any, was that of the decedent in attempting to cross the track of the defendant company when he knew, or, in the exercise of ordinary care, should have known of the approach of the locomotive which caused his death. There is no question made by counsel for the company that the accident, if we call it such, was the direct cause of the death, and indeed no question could justly be made upon the evidence in this record.
    There is conflicting evidence as to whether proper signals were given as the engine approached the crossing. The crossing is that of Benedict avenue in the city of Norwalk at a point where the track was to a considerable extent hidden by buildings, and, as claimed by the plaintiff below, by some cars or rolling stock stationed upon the switch immediately north of the track on which the locomotive which caused the death was approaching.
    The grounds of negligence asserted by the plaintiff below, which it is urged warranted the recovery of a verdict in favor of the administrator for $5,000 damage, are, that the engine which had previously gone in an easterly direction and was at the time backing westerly towards this crossing, the tender being in front of the locomotive, had no proper lookout upon 'or about the tender to reveal the close approach of any person to the track, or the fact -that any person was upon the track, in time to enable the employe in charge, the engineer, to check its course to avoid peril to the person crossing; that there were no closed gates at the time of the accident to stop persons traveling upon the highway from crossing the track; that there were no sufficient lights on the advancing part of the locomotive — that is, the end of the tender which was in advance— so as to make the approach of the locomotive plainly visible to persons about to cross the track; and also that the engine was running at an excessive rate of speed and that the engineer in charge of it Wfw not keeping it purler sufficient ppntjffij,, $ think that these are all of the claimed grounds of negligence as against the company.
    Numerous errors have been asserted by the defendant below, to have occurred during the progress of the trial, some of which follow.
    At the very outset of the trial, questions were raiséd upon the impanneling of the jury and certain challenges were made by the defendant below to persons called as jurors, which challenges were overruled by the court and exceptions were taken. It appears also that at one stage of this procedure the plaintiff below announced his intention of passing the jury so far as apparent peremptory challenges were concerned. He ■said that he simply waived the challenge for the time; but however that may be, the court subsequently permitted him to exercise the right to peremptory challenge after perhaps challenges for cause had been made by the defendant below.
    We have examined the record very carefully in this regard, and we find that the persons who were considered objectionable by the defendant below, and whom he asked to have excluded from the jury, possessed more than the average understanding of the required duties of jurors.
    It is true that some ignorance of what would be the proper rule as to liability was shown by one of them in his answers to questions put to him by counsel for defendant below. Without attempting to state the precise form in which these questions arose in the record, it is substantially this: --
    Mr. Young, counsel for defendant below, asked the juror whether, if he found that both parties Vrere negligent — both decedent and the defendant company — he would render a verdict for the defendant below, even if the negligence of both contributed to the injury, and the juror at first replied in substance that in such case he should think that the plaintiff ought to have something, but the amount that he should have, should be determined by the amount of the negligence of both; but upon being instructed by the court as to what would be the true rule, or rather when the hypothetical question was put to him by the court as to what would be his course, if he should be instructed, by the court as to the true rule in this state as to contributory negligence, the witness at once showed a disposition to abide by the rule of law which should be given by the court and no disposition in the slightest degree to assert his own notion as against the law. We think in this instance as in the other, that the juror showed intelligence and appreciation of his duties and the court properly admitted him. We think that there was nothing to justify the court in rejecting these jurors for anything that appears upon the record.
    The fact, that counsel for plaintiff, temporarily passing the jury, waived any right of .peremptory challenges for the time, we think did not deprive the court of the power to permit the exercise of peremptory challenges later, provided no -injustice were done -to the opposite party; and there is nothing in this ease to indicate to our minds that any injustice was done. We think there was no error or abuse of discretion in the impanneling of the jury.
    The defendant below claims that the court erred in permitting evidence offered on behalf of the plaintiff below, .especially as to the custom of the company in leaving cars upon the the switch to which I have referred — a switch next to and along the shed owned by the lumber company, between this shed and the track along which the locomotive passed upon the occasion in question. This evidence was not exactly in the form of a custom; it was rather evidence as to the nature of this track, what it was used for, and it was coupled with some other evidence indicating that upon the occasion in question, on October 2, 1903, there were cars which may have obstructed the view of .Mr. Newman in his approach to the track where he received his fatal injury.
    Our judgment is, that, coupled with the other evidence that was offered showing the probability that cars were placed upon the track on this occasion, it was entirely proper to show that that was a switch track, or a track for the placing of cars loaded with lumber which might be consigned to this lumber company, and placed there for the purpose of receiving lumber for shipment.
    Another question of claimed error is raised upon the admitting of evidence connected with this same point, the use of this track and the probability that it was occupied, as I have said, on the night in question. Certain records of the company were permitted to be used to show this fact, and it is claimed that this was error. The official of the company whose duty it was to keep these records, making the entries, was not called as a witness; the record was,shown by the person in whose custody they were, but not the person who had kept them, and it is claimed that this was error. This might be urged with much more force if the record had been offered in behalf of the company, if it had been claimed that it was an item of documentary or record evidence, which had been made by the company for the preservation of the history of a fact which could not otherwise conveniently be shown, just as a book of original entries may be offered by a tradesman in his own behalf, upon his showing that it was kept in a proper manner, and just as has been permitted to be shown in the two cases which counsel have in memory, Moots v. S'táte, '21 Ohio St., 653, and Shrieclley v. State, 23 Ohio St., 131. The difference, however, between those cases and this is involved in the fact this this evidence was offered, not in behalf of the company which caused the record to be kept, but in behalf of the opposite party as an admission of record by the defendant company, and it made very little difference as to who had kept it, if it was one of its records upon which it relied, and which it used in its business, and was in the custody of the official who produced it or whose attention was called to it in court. We think that it was properly admitted.
    The plaintiff in error complains that evidence was permitted of some of Mr. Newman’s characteristics — his good nature and affability and such matters as that — and especially that it involved the testimony of his wife along this line. We do not think, if the evidence is competent, that any proper objection can be taken to his wife’s testifying as to his habitual characteristics. She is just as competent upon such matters as is any other witness, while she would not be a competent witness to testify to transactions between herself and her husband when no other witnesses were present. But this is a trait of her husband which might be evinced 19 her,'not only in their communication with each other, but also and more especially in the form in which it was called for in the question here, in his dealings with other people; because that was the question substantially that was asked of her — what were his characteristics in his relation to other people, not in his relation to her; and Ave think the testimony Avas competent as drawn from other witnesses and also from her. Most of it is in its relation to the business in which he was engaged.
    He Avas an insurance agent and all business people know— all intelligent observers knoAv — that in the business of soliciting insurance, the possession of affability and good address are important characteristics, adding greatly to the earning capacity of the man so engaged. We find no error in the admission of this testimony.
    On the other hand, it is said that the court improperly excluded testimony tending to show that Mr. NeAvman was habitually negligent in approaching this crossing. The court did reject such testimony, and we think properly, although the attorney offering the evidence said he offered it for the purpose of showing Mr. NeAvman’s familiarity with the crossing.
    In the case of Balt. <& O'. Ry. v. Van Horn, 21 C. C., 337, decided' by the Licking circuit court, the judge announcing the opinion, says:
    “It is true that if it was offered to show that Yan Horn had repeatedly crossed the railway at that point, that would be competent to show his familiarity Avith the crossing. As is said in Brewing Go. v. Bauer, 50 Ohio St., 560, it is competent to shoAV his familiarity Avith the; crossing, and if that involved the idea of other acts of negligence on his part, it would be the duty of the trial judge1 to caution the jury that that evidence was competent only for the purpose of showing familiarity with the crossing, and not to show other acts of negligence. But the offer in this case Avas not for the purpose of showing his familiarity Avith the crossing- — the fact that he knew that there Avas a railroad crossing there, and knew the situation and surroundings; but it Avas offered for the purpose of shoAving that,, on some other occasion he had had a narrow escape before the train; in substance that Yan Horn was habitually negligent, or that at other times and at that place he had been guilty of negligence. We think that that evidence, offered for that purpose, is clearly incompetent. It brings before the jury an entirely collateral issue.”
    I shall not dwell longer upon the language of the judge in further elaboration of his opinion, which is unquestionably well founded and in accordance with the rule of law, that you can not prove one act of negligence by showing others; you can not show that Mr. Newman was negligent upon this occasion by proving negligence on other occasions. It may have been an especial cause for his exercising the very highest degree of care upon this occasion; in other words, it is the kind of a thing which might lead a man to be careful, that he had had narrow escapes at other times. However, if the court was in error in not permitting it — we do not think the court was— we think that no prejudice resulted, because there can be no question, under all the circumstances of this case of Mr. Newman’s familiarity with this crossing. It was not a disputed matter in the case. He lived upon this street, and he was accustomed to cross the railroad track at this point very frequently; he was accustomed to drive across it, and the jury could have come to no other conclusion than that he was altogether familiar with the crossing and with the dangers incident to passing over the track.
    The defendant below offered, among other items of evidence, to show that the property of Mr. Newman was mortgaged. This is upon the question of his ability to save or earn money and to provide for his family and accumulate an estate.
    We think the testimony was properly rejected by the court for the reason that it is not the best evidence of a man’s earning capacity. There is more direct evidence, and it is not an unfamiliar fact that many people permit mortgages to be and remain upon their property for the very purpose of. enabling them to accumulate an estate. Sometimes they believe they can earn more with the money which has been obtained by the 'placing of an incumbrance upon their property, than they lose by the payment of interest upon the debt. All of us have in mind manufacturing industries that do a large part of their business upon borrowed capital. Their annual income from the profits of sales may be very much enhanced by reason of the larger capital which they obtained by borrowing, and it may entirely justify the carrying of an indebtedness for many years with annual payment of interest upon it. But at any rate, even if this were not so, whatever Mr. Newman was able to earn, in so far as that the money would go to the extinguishing of a mortgage, or to the making of proviion for his wife and children, might naturally be inferred or be believed to go to the enhancing of their interest in his estate. If he could eventually have earned enough to extinguish an incumbrance upon the property, his estate would be enlarged to that extent. If the mortgage was to remain upon his property, what he could earn would go to make provision for the maintenance of the family. So we do not see that the existence of an incumbrance upon the property had any legitimate bearing upon the question as to what he was able each year to earn.
    It is urged by counsel for plaintiff in error that an improper element of evidence was admitted into the case in showing the value of his business as an insurance agent, instead of showing .his earning capacity. We think his earning capacity was shown. His business of fire insurance was not quite like the business of a life insurance agent, where there is some understanding between he agent and his company that he is to receive a part of the annual premium which may be collected by some other agent after he goes out of the employment of the company. It is not like that; but the value of the business here is simply his own good will — his personal good will; it is that, which he may be able to maintain if he lives and which is at once cut off if he dies, growing out of his affability, growing out of his capacity for business and his knowledge of insurance, and the clientage he has built up. It is a matter of good will, as I say, and it may properly be taken into consideration in estimating damages under the circumstances developed here.
    ■ The answer admits that the death was caused by the injury, and it is said in behalf of the plaintiff in error that the court permitted evidence of doctors tending to excite the imagination of jurors, and consequently their sympathies and possibly their prejudice, which testimony more specifically was that of doctors describing the extent of the injury directly caused by the striking of Mr. Newman by the locomotive.
    We think that the jury could hardly have been influenced in the direction suggested by this evidence. So much is involved in the knowledge that the death was caused by the violence of the collision and the extent of the injury, that scarcely anything could be added to that; I mean in the way of awakening sympathy- — sympathy with those who had suffered; with the wife and children; or sympathy because of any thought about his own pain, or prejudice against the company because of .any assumption that the injury was caused by the company’s, negligence. We hardly see how the jury could have been influenced in the particular direction claimed by counsel. The evidence did have a bearing in another direction, and was properly received by the court, although it may have had but a very slight bearing.
    Some question was raised as to the speed of the locomotive. It was one of the complaints of the plaintiff below that the locomotive was running at an excessive speed, and as bearing upon that, it was competent -to show the violence with which Mr.. Newman was struck, how far he was thrown and in what" direction, etc.; and in that immediate connection, the extent of the bruises or the mangling of the body or anything of that-sort, as bearing upon that question, of the speed of the locomotive. As I have said, it may have had a little bearing; but if it had any at all, it was proper to be received by the court. If Mr. Newman had been simply pushed down by the locomotive, running at the speed at which a man might walk, and had thereby been injured and had died, it would have presented an entirely different phase so far as this aspect of the controversy is concerned.
    Criticism is made of various special instructions given by the court and to some of them I will briefly refer. On page 775 of the record is recited the twenty-third instruction given at the request of the plaintiff below, which reads as follows:
    ■ “ Whether a given rate of speed in operating a locomotive across a street in a populous city is negligence, is not in such a ease as this a matter of law, but is a question of fact to be determined by you from the evidence, including all the circumstances and surroundings as shown by the evidence, but under the instructions of the court.”
    We are unable to see any error in this. The fifteenth request on page 774 reads as follows:
    “If you find from the evidence that the defendant on the occasion in question failed to give such signals by bell or whistle or both as ordinary care required in approaching Benedict avenue with its engine, such failure would be negligence.”
    I believe counsel argued orally that the company was held only to what the statute requires as to the giving of signals by bell and whistle. We think that the statutory rule may be not the only rule; that it does not destroy the general rule, that the company is held to the exercise of ordinary care.
    The plaintiff below asked the court to instruct the jury and the court did, over the objection of the defendant:
    “Unless he had knowledge to the contrary or in the exercise of ordinary care, would have had such knowledge, Samuel F. Newman had the right to assume that if an engine of the defendant was approaching said crossing at the time in question, it would be handled and operated with ordinary care, and would not be run at a negligently high rate of speed.”
    The criticism upon this made by counsel for defendant below is, that -the word “should” ought to have been used in the first part of the instruction rather than the word “would”; in other words, that it would have been correct to say that “unless he had knowledge to the contrary, or in the exercise of ordinary care ‘should have had’ such knowledge,” he might assume so and so.
    We think that in this particular instance the word “would” is just as proper as the word “should.” There are many cases where it is proper to say that, in the exercise of ordinary care, he would have had such knowledge; as much as to say that if he had exercised ordinary care, he would have had it. It is precisely the same as to say that he should have obtained it by the exercise of ordinary care.

      Now, when the court says that unless he had knowledge to the contrary, or in the exercise of ordinary care would have had such knowledge — that is to say, would have obtained it by the exercise of ordinary care — he is stating the proposition, we think, correctly. It would have been equally proper to use the language suggested by counsel. We think there was no error in giving the instruction as it was given.
    The eighteenth instruction objected to, is as follows:
    “If you find from the evidence that the engineer and fireman or either of them failed to maintain such a lookout toward the west as ordinary care required, while said engine was approaching said Benedict avenue at the time in question, and then managed and operated said engine without that caution and care which in the exercise of ordinary care should have been observed, and that Samuel F. Newman was injured because of said facts, you will be authorized to infer negligence on the part of the defendant as- one of the facts established in the ease.”
    It is said that the fireman had other duties; that he was not required at all times to' keep a lookout. That may be true and the court does not say otherwise; the court simply says, “If * * * the engineer and fireman * * * failed to maintain such a lookout * * * as ordinary care required.” It is not saying that ordinary care required them to keep a constant lookout.
    In the case before us, and under the undisputed circumstances, it would seem as if the court might perhaps properly have said that as they approached this crossing, where the view of the track was obstructed as it was obstructed, considering the rate of speed at which the engine was running, and in view of the fact that it was down grade so that the fireman would not be engaged at the time/ necessarily replenishing the furnace with fuel, there ivas no reason why he could not be keeping a lookout along the track. The instruction given does not say he was obliged to keep a lookout up Benedict avenue; it is not hinting at that; it is not saying that he should have seen Mr. Newman when he came under the electric light; the court is saying nothing of that kind; but the court is simply saying that if they omitted to keep that sort of a lookout, which ordinary care required in the discharge of their duties, then it would be an act of negligence on their part.
    On page 684, is a matter to which I perhaps should have ■ referred before going to the charge. The record discloses these facts; quoting:
    “Mr. Young — I will say to Mr. Andrews and to the court, as far as I can, I will have an engine arranged and the track arranged in the way Mr. Andrews claims, and then I will have it arranged the way I claim, that the jury may see the experiment.
    “Mr. Andrews — I object to it; I think the conditions that vary all through are of such a character that any view of that kind in my judgment would be more liable to mislead one way or the other than it would be to offer any assistance in this case. I don’t think that there can be any great difficulty in our arriving at correct results from the sworn testimony of witnesses.
    “Court — As I understand the rule of law, there is no doubt but that such an experiment, in the presence of the jury could only be had upon the agreement of counsel upon both sides, and in the absence of such an agreement I would not feel at liberty to order. I will say this, however, as I have heretofore said, that if any one juror makes a request of the court before the argument to have another view of the premises, I will order the jury conducted in charge of the sheriff to have a second view of the premises, and that will be, as I have said before, with the consent and approval of counsel on both sides of this case.
    “Mr. Young — I offer to have Mr. Laylin go out and measure distances and have an engine run at varying rates of speed; then I am willing to have these people who - have estimated speed say how fast it is running and we can tell to a mathematical certainty how fast it does run.
    “Court — Unless counsel agree on both sides to such an experiment, the court will overrule the request.
    “Mr. Andrews — I object to it.
    “Mr. Young — To the refusal of the court to permit the jury to go, under the circumstances in the evening, to witness an experiment of this kind, I desire to take exceptions.”
    Whether the trial judge had reference to a dictum in 60 Ohio State or not, I do not know. There is a dictum there which expresses the views of Judge Williams upon this point, and possibly the view of the supreme judges generally who have the ease under consideration. It is nothing but a dictum, however, and can be treated as the view 'only of the judge who uses the language. The case is that of Schweinfurlk v. Railway, 60 Ohio St., 215. The precise language to which reference is made is found on page 229, where the judge says:
    “True, the experiments in this case-were not made in court; it was impracticable to do so. Nor, without the consent of the parties, could they have been ordered to be made elsewhere. But they were made out of court at the request of the defendant, in pursuance of an order procured by it, and under conditions which, to its satisfaction, constituted'a sufficiently accurate representation of the occurrence that resulted in the death of the plaintiff’s intestate; and they were necessarily of the same probative character as if made in open court.”
    That was a matter which the court was considering; whether the experiments were to be received and considered as evidence or not, as has sometimes been held with regard to the view of premises, something to throw light upon the evidence as illustrating the case, and not to be deemed substantive evidence in itself.

      Jones v. Stale, 51 Ohio St., 331, was a homicide ease in which we find that certain experiments were made out of the' view of the court. The Supreme Court held that they were authorized by the defendant, and that although the permitting them was alleged to be prejudicial error, it was not so in view of the consent of the defendant. The court substantially held that it was a matter which he might waive — I mean his right to object to such experiments.
    In 2 Jones, Evidence, See. 410, we find this language, after discussing the question as to the viewing of premises and also as to experiments: ■ .
    “And in general it is held to be error to allow the admission of statements or the performance of experiments during the view, unless such experiments or evidence are performed or given with 'the consent of both parties. ’ ’
    This is stated as a general rule, but whether the trial judge in this ease relied upon that, or whether he was relying upon the dictum to which reference was made in Schweinfurlk v.
      Bail-way, supra, I know not. In Jones, Evidence, Sec. 413, this is said:
    “They have no right to gain knowledge [speaking of the jurors] concerning the cause by such methods as making experiments out of court or by taking views, except under the supervision of the court. But if the knowledge gained in this way could not have affected the verdict rendered, it is not such error as to warrant setting aside the verdict.”
    This refers to the situation where the jury go and make experiments of 'their own volition. But a part of this offer as to experiments was, that the engineer might make measurements. There surely would have been no objection to his making measurements and testifying in regard to that; but that was not precisely what was sought here. It was to make measurements, and after they had been obtained, to have an engine run at varying rates of speed, and have the witnesses who made estimates in court make them over again upon such subsequent transaction.
    Our view is, without discussing the matter more fully, that this would have been improper. At the most we are very clear that the court, if it had the power to grant the permission at all against the objection of a party, would have a discretion in the matter to refuse it, if in his judgment it would not throw proper light upon the controversy. Taking that view of it, it can hardly be said there was here an abuse of discretion.
    Returning to the charge on page 773 we find request No. 8 ef the plaintiff below, and the instruction given in accordance with the request. It reads as follows:
    “It is for the jury to say from the evidence and the instructions of the court, whether a person approaching said crossing under the circumstances disclosed by the evidence should, in the exercise of ordinary care, look for an approaching engine, and what looking and listening, ordinary care, under the circumstances disclosed by the evidence, required.”
    This instruction is not, to our minds, very artistically framed. It is a little obscure at first reading, but the intent of it is clear enough after careful scrutiny, and possibly the court might have been at fault in refusing it. This is not saying that it was not the duty of a person approaching the track to exercise his faculties of sight and hearing at a suitable point or at the point where, if he had exercised his faculties, it would have disclosed the approaching engine; it is not 'negativing any such proposition as that and taking that to be the law — ■ that a man should make efficient observation, if possible, and at the proper point for making it — it still becomes a question of fact for the jury, as to just what that efficient point is, as to just where, if he had looked, he would have seen, or just where, if he had listened, he would have heard. This is a matter of fact for the jury to determine, and not for the court.
    After the argument was concluded, a request was made to the court as shown on page 797; this was also after the general charge of the court to the jury. It is recorded as follows:
    “Gentlemen of the Jury: I am asked by counsel for plaintiff to give you this further request which I do:
    “ ‘If you find from the evidence that when Mr. Newman’s' horse was upon the track, he discovered the engine and then urged his horse forward, this fact would not be an act of negligence on the part of Samuel F. Newman, if he acted with ordinary care under the circumstances.’ ”
    We are unable to see why this is not.the law. If he had lingered on the track after discovering the approaching engine; if he ha dmade no effort to escape; if he had stopped upon the track, or if he had permitted his horse to go so slowly as to increase his peril, it might well be urged that that would have been negligence on his part. The court says that it would not be negligent for him to urge his horse forward provided he acted with ordinary care under the circumstances. We see no reason why the court might not have given it if asked by counsel without that last qualification. We think it might be said as matter of law that if a man has reached the track and his horse is upon it, if he sees a locomotive so •so close to him that he is in great peril, it is his duty to urge his horse forward and get off the track just as soon as possible. The court would be just as much justified in giving that in behalf of the plaintiff as in giving the proposition that before going upon the track, ordinary care required that a man must exercise his faculties to discover whether there is a sign of danger.
    There are numerous other questions raised in this record, numerous exceptions taken, but I do not deem it profitable to examine further, or to say anything about them beyond the statement that in our judgment the ease was fairly tried by the court, and with a great deal of care. It would be strange indeed if, in the raising of questions and the taking of exceptions to the number of 265 which I find upon this record, the court did not get sometimes pretty close to the line. The case was fairly tried, ably prosecuted and ably defended, and no just criticism can be made upon the conduct of the court as to any points which have been called to our attention, either in oral argument or in briefs. The judgment of the court is, that the verdict should stand, and that the judgment o£ the court below should be affirmed.

      S. M. Young, for plaintiff in error.

      A. V. Andrews and W. B. Bruner, for defendant in error.


author: Per Curiam.

text:
    DEFENSES AGAINST UNION MUTUAL FIRE INSURANCE COMPANY ASSESSMENTS.
    [Circuit Court of Huron County.]
    James B. Swing, Trustee of the Union Mutual Fire Insurance Company of Cincinnati, Ohio, v. The Ohio Cultivator Company.
    Decided, November, 1906.

      Fire Insurance — Policy Holders in the Union Mutual Fire Insurance Company — May Interpose Defenses under the Supreme Court Decree — Statute of Limitations — Assessments—Judgments.
    1. The decree of the Ohio Supreme Court, entered in June, 1901, against the policy holders of the Union Mutual Fire Insurance Company, • of Cincinnati, does not find that any one policy holder may not assert legitimate defenses in a suit instituted against him as a policy holder in accordance with said decree.
    2. The defense that an action on such an assessment is harred by reason of the lapse of six years from and after the making of a prior assessment and notice thereof served upon the defendant with demand for payment, is conclusive against a trustee seeking to enforce such subsequent assessment.
   Per Curiam.

The facts in this ease, briefly stated, are as follows: Suit was instituted in the Court of Common Pleas of Huron county by the present plaintiff in error against the Ohio Cultivator Company, based upon assessments ordered by the Supreme Court in June, 1901, against the policy holders of the Union Mutual Fire Insurance Company of Cincinnati, a corporation which, about the year 1890, was dissolved by order of the Supreme Court, and for which the plaintiff, Swing, had been by the Supreme Court appointed trustee. The defendant asserted in the court of common pleas that the plaintiff’s action was barred by the lapse of six years from and after the making of a prior assessment and notice thereof with demand for payment served upon the defendant. This defense was successfully maintained in the court of common pleas, which rendered judgment for defendant. To reverse this judgment the proceeding’s in the circuit court were instituted.

Our judgment is that the court below was right in its conclusions as to the claim of the statute of limitations asserted by defendant below, the Ohio Cultivator Company. While the findings and decree of the Supreme Court classifying the claims of creditors against the dissolved insurance company and ordering assessments against policy holders classified according to the terms that such policies were in force can not be collaterally impeached, this conclusion leaves as an open question the construction of such findings and decree. Our view is, that the Supreme Court did not intend -to fix the liabilities of each policy holder or determine his specific defenses or claims. True the finding of the court determines the rate of assessment which is to be made against the policy holders of the class to which the defendant belongs, but it does not find that any one policy holder of such class may not assert legitimate defenses in a suit instituted against such policy holder. If the court had contemplated the conclusive determination of the liabilities of each policy holder, there would have been no necessity for ordering suits by the receiver to collect assessments. A computation of the amount due upon each policy with an order for an execution to collect the same in case of default in payment upon notice of the assessment, would have sufficed.

The ease at bar differs from that of Mills, Spellmire & Co. v. Whitmore, Trustee, 22 C. C., 467, decided by the Hamilton Circuit Court, in the fact that in that case the order of the Supreme Court after fixing the classes of policy holders subject to assessment and fixing the assessment upon each class, concluded with the words, “Subject to any defense which any individual member may have to show that he is not liable,” while no such qualification is found in the decree of the Supreme Court, which is made the basis of this action. Notwithstanding the omission of such qualifying clause, we think that it should be read into the decree as a fair construction of the spirit and purpose thereof.

In this connection and in support of the position which we have taken, reference may be made to the case of Great Western Telegraph Company v. Purdy, 162 U. S., 329, and especially to the language found in the opinion of the court announced by Mr. Justice Gray, on page 337, as follows:

“But the order was not, and did not purport to be, a judgment against any one. It did not undertake to determine the question whether any particular stockholder was or was not liable in any amount. It did not merge a cause of action of the company against any stockholder on his contract of subscription nor deprive him of the right, when sued for an assessment, to rely on any defense which he might have to an action upon this contract. ‘
“Im this action, therefore, brought by the receiver, in the name of the company, as authorized by the order of assessment, to recover the sum supposed to be due from the defendant, he had the right to plead the release, or payment, or the statute of limitations, or any other defense, going to show that he was not liable upon his contract of subscription. ’ ’

We are not apprised by the pleadings or the evidence as to the scope of the inquiry reported upon by the referee to the Supreme Court. It is unlikely that opportunity was given for the presentation before him of claims of specific defense’ such as that asserted before us. The pleadings and evidence do disclose the essential fact that in the year 1891, more than six years prior to the institution of this action, and again in 1897, a like assessment was. made, not for precisely the same amount, but to cover the same losses, against the defendant. The statute of limitations applicable to liabilities of this character bars suit upon them after the lapse of six years.

If the assessments of 1897 and 1901 were on account of a further liability arising out of the fact that the assessment of 1891 was not sufficient in amount if collected to cover the liabilities to which defendant in error was bound to contribute, then the fact that the assessment of 1891 was barred by the statute of limitations might not result in such subsequent assessments, or the entire amounts thereof, also being barred by the statute. But it appears to us from the evidence that the assessment of 1891 was designed to discharge, and if collected probably would have discharged, all liabilities to the discharge of which defendant in error was bound to contribute, and therefore it was an assertion against him of the full and entire amount of his liability, and the subsequent assessments were merely reassessments to cover the same liability, and the purpose of making such re-assessments may have been to give the claim against the defendant in error new life so that the bar thereof by the statute of limitations might be avoided; but this, we think, could not be done effectively.

We think then, that the defendant below has presented and maintained a sufficient defense to the claim asserted by the trustee. Entertaining these views, the judgment of the court below will be affirmed.


text:
    JURY DISTRICTS AND TRIAL DISTRICTS SHOULD COINCIDE.
    [Circuit Court of Franklin County.]
    Clara Fendrick v. State of Ohio.

    Decided, October 8, 1906.

      Criminal Law — -Affidavits Charging Misdemeanors — Jurors—Districts from Which They Must he Summoned to Meet Constitutional Requirements.

    1. A motion to quash an affidavit for the reason that the affidavit does not conclude with the words, “contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio,” will not lie where the affidavit charges a misdemeanor and makes clear the nature of the crime charged.
    2. In all cases where crime is charged the jury district, to meet constitutional requirements, should be co-extensive with the trial district; and it follows that one charged with an offense committed beyond municipal limits, but within police court jurisdiction as fixed by 97 O. L., 7, can not be legally tried by a jury drawn from residents of the municipality only.
    C. D. Saviers, for plaintiff in error:
    An affidavit for prosecution of misdemeanor is not required to conclude with “contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Ohio.” Olendorf v. State, 64 Ohio St., 118.
    An impartial jury of the district in which an offense is committed is necessary to conviction in the police court where its jurisdiction extends beyond corporate limits. Section 10 of the Bill of Rights of 1851; Anonymous, 36 Bull., 301; State v. Voris, 8 N. P., 16; Lloyd v. Dollisin, 3 C. C. — N. S., 328; Cooley, Const. Lim., Sec. 320; Cooper v. State, 16 Ohio St., 328; State v. Peters, 67 Ohio St., 494; Ilanaghan v. State, 51 Ohio St., 24; Carper v. State, 27 Ohio St., 572; Davis v. State, 19 Ohio St., 270; Hogue v. Stale, 3 C. C. — N. S., 315; Smith v. State, 12 C. C., 458; Geiger v. State, 5 C. C., 283; Pope v. Cincinnati, 3 C. U., 497; Frank v. Cincinnati, 7 N. P., 146; Ladd v. State, 5 C. O., 276;
      Hartnell v. Skate, 42 Ohio St., 568; Palmer v. State, 42 Ohio St., 596; Heed v. Slate, 15 Ohio, 217.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.
    Error to Franklin common pleas court.
    Plaintiff in error was prosecuted in the police court of the city of Columbus for “keeping a house! of ill fame,” it appearing from the affidavit that the house was located some two hundred feet outside the corporate limits of the city.
    The claim of jurisdiction was based upon 97 O. L., 7, giving said court jurisdiction in minor offenses over the city, and the adjoining territory within four miles of the corporation line.
    Upon trial a jury was summoned from the city, pursuant to ordinance No. 14401, which provides for the selection of jurymen from the city only.
    Plaintiff in error demurred to the affidavit because it did not close with the words ‘1 contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Ohio.” The demurrer was overruled. She also challenged the jury because selected from the city, and not from the county or district in which the offense is alleged to have been committed, pursuant to Section 10, Article I of the Constitution, The challenge was not sustained.
    Exception was also taken to the admission of evidence as to the reputation of the place, and of the women who were found there. There was a verdict of guilty and sentence.
    On error to the common pleas court, the proceedings were affirmed; and error is now prosecuted to this court to reverse the judgments of the courts below for the reasons above stated, and because the verdict was against tire weight of the evidence.
    We are of the opinion that there was no error in overruling the demurrer to the affidavit. Section 20, Article IV of the Constitution provides that all indictments shall conclude with the words “against the peace and dignity of the state of Ohio.” There is no such requirement as to affidavits upon which prosecutions for minor offenses are founded, Nor is it necessary. If the.affidavit describes 1h? crime, the court will take judicial notion that it is contrary to the statutes) aud it’ contrary to the ci imimt] statutes, it is against the peace and dignity of the state of Ohio.
    The next question is more serious. It would be easy of solution but for the provision of the ordinance with reference to the drawing of the jury. The mere fact that all members of’the jury happened to be citizens of Columbus was a matter of no consequence. If .their names were drawn from a box containing names of citizens of the outside townships, the rights of the accused would have been fully preserved. But, the ordinance referred to required'that the jury be selected from citizens of Columbus. Residents of other parts of the county were excluded. As Judge Earnhart aptly remarks in State v. Voris, 8 N. P., 16, the citizens of the outside territory “could appear only as- culprits. ” They had no part in the administration of the law; even with reference to offenses committed within their own bailiwick. Although living in a district defined in the statute, and much larger in area than the city of Columbus, they are subject to be dragged to the smaller district, and tried before what is to them an alien court, although in their residence district there is an organized judicial system. We think that is not within the letter or the spirit of the Constitution.
    The question has not been passed upon in Ohio, except by Judge Earnhart, in State v. Voris, supra, and by Judge Slough, of Fairfield County Common Pleas Court, in Friend v. Holliday, 48 Bull., 107. In the report of Friend v. Holliday no authorities are cited. But Judge Earnhart’s opinion is supported by pertinent citations.
    In Olive v. State, 11 Neb., 1, it is held in a very full opinion, that—
    “While the Legislature doubtless may, in their discretion, by general law, create trial districts larger than a single county, yet, to be effective, such law must be accompanied by one under which jurors can be called from the whole, and not from merely a portion of such district. In other words, the trial district and the jury district must be the same.”
    To the same effect is Armstrong y. State, 41 Tema. (1 Goldw.), 338.

      As holding to the contrary, two citations are noted: Slate v. Stewart, 60 Wis:, 587 (50 Am. Rep., 388), and State v. Robinson, 14 Minn., 447, and upon these the decision of the court below was founded. Both of these cases were with reference to proceedings under a statute giving a county court jurisdiction over crimes committed within the territorial limits of the county “and one hundred rods beyond the boundary line.” In the first case the accused was charged with obtaining property under false pretenses, and it appeared that the alleged false pretenses were made in one county and the property (a horse) obtained in another. The accused was arraigned in the county where the false pretenses were made, and the point was suggested that the crime was not complete without obtaining the property, and that the law giving the court jurisdiction beyond the county was unconstitutional for the reasons urged in this case.
    The court held the law constitutional, but its opinion was founded upon eases holding that where a crime was committed partly in one county and partly in another, the accused was triable in either. The court, however, went further and held that the law was constitutional as applied to any crime; but expressly refused to decide “whether a juryman residing outside of the county, but within one hundred rods of the county line, and hence within the district; would for that reason be incompetent, or a subject of peremptory challenge,” such a question not being before the court.
    In State v. Robinson, supra, the court was inclined to sustain a law of long standing, which served a useful purpose in avoiding embarrassing questions and technical difficulties in prosecutions for crimes committed near county lines ,- and also because there was “an entire absence of adverse authority.”
    With due respect to the high character of these authorities, we think the holding in the Nebraska and Tennessee cases above cited, and by Judge Earnhart is more logical and consistent. In all criminal cases, we think the jury district should be co-extensive with the trial district, in order to meet the requirements of the Constitution.
    We find no other error in th§ proceedings,

      The judgments of the common pleas and police courts will be reversed, and remanded to the police court for a new trial before a competent jury.

      C. D. Saviers, for plaintiff in error.

      J. M. Butler, Q. 8. Marshall, C. E. Carter and J. G. Westwaler, for defendant in error.

       Reversing the second syllatyu&f of Fendrick v. Ohio, 4 O. L. R., 350.