text:
    EVIDENCE.
    [Lucas (6th) Circuit Court,
    November 20, 1909.]
    Parker, Wildman and Kinkade, JJ.
    V. M. Falardeau v. W. H. H. Smith Co.
    1. A Copy of Entries not Admissible when not Identified by Persons Keeping both Originals and Entries.
    An impression book in which are copied bills of lumber which were drawn off from a yard book is not competent evidence as a book of original entries when offered in evidence and identified only by the person keeping it but who took no part in keeping the yard book.
    2. Copy of Instrument, Original of Which is in Hands of Adverse Party not Admissible unlfss Notice Served to Produce Original.
    An impression copy of an instrument sent to the opposite party in a case is not competent evidence when no notice has been served upon such party to produce the original, and the fact that such party had turned such original over to a,third person connected with him in the transaction does not excuse the failure to serve such notice.
    [Syllabus approved by the court.]
    Error to Lucas common pleas court.
    Ralph Emery and Rhodes & Rhodes, for plaintiff in error:
    Cited and commented upon the following authorities: Kennedy v. Dodge, lO.Circ. Dee. 360 (19 R. 425); Breinig v. Meitzler, 23 Pa. St. 156; Swan v. Thurman, 112 Micb. 416 [70 N. W. Rep. 1023]; Welsh v. Barrett, 15 Mass. 380; Nicholls v. Webb, 21 U. S. (8 Wheat.) 326 [5 L. Ed. 628]; Livingston v. Tyler, 14 Conn. 493; Price v. Earl of Torrington, 1 Smith L. C. 344; Jachon v. Evans, 8 Mich. 476; Merrill v. Sullivan, 68 Fed. Rep. 509 [15 C. C- A. 553]; Paine v. Sherwood,, 21 Minn. 225; Baceter v. Leith, 28 Ohio St. 84; Heller v. Beal, 13-23 O. C. C. 540 (3 N. S. 268) ; Greenleaf, Evidence Sec. 560; Scioto Val. By. v. Cronin, 38 Ohio St. 122; Chotean v. Baiit, 20 Ohio 132.
    R. S. Holbrook, for defendant in error.
   WILDMAN, J.

The W. PI. H. Smith Company sued Falardeau in the court of common pleas upon an account for lumber said to have been sold and delivered to him. The case was tried and a verdict rendered in favor of the plaintiff for $949.24, and to reverse the judgment rendered upon that verdict the proceeding is instituted here by Falardeau.

It is not necessary to go into the details of the ease, except to a very limited extent for their bearing upon the two questions which have addressed themselves to the court as vital. It is claimed by the plaintiff in error that the court erred in the admission of prejudicial evidence against his objection. One item of this evidence was a certain book of original entry as described or claimed by the plaintiff below, but which the defendant insisted was not of the character of original entries, or was not so authenticated as to justify its admission. The court, however, took the view that it was competent and permitted it to be given in evidence to the jury. This book seems to have been made up from the evidence afforded by certain bills which themselves had been eopied from so-called yard books. The book offered in evidence is an impression book, — receiving copies by letter press impression — of the so-called bills, which one of the witnesses says were themselves eopied from the yard book. As nearly as we can understand the evidence, they were a sort of orders or lists of the lumber required by purchasers placed upon the books perhaps before the lumber was in fact delivered upon the orders, and then as fast as the lumber was delivered, the various items of it were checked off upon the so-called yard boobs, and it seems that these yard books themselves, so far as the evidence in this record discloses, might be the books of original entry. But whether or not that is so, we have arrived at the conclusion that there is not sufficient evidence to justify the admission of the book which was received, and we think that the court in its admission erred to the prejudice of the plaintiff in error. It does not appear that the person who kept the books had personal knowledge of the deliveries of the various items of lumber which were placed therein with the values of the same. It does not appear that he had knowledge of any part of the transaction, but it does appear that all the information that he had was derived from the entries that had been made in the other books to which I have referred, or the bills which were eopied therefrom. These bills as nearly as we can understand them may have contained the values which did not appear perhaps upon the yard books. We are somewhat in the dark as to just what was in the yard books themselves, they not having been offered in evidence and not appearing in the record. It is probable that the yard books show simply the amount of the lumber required, and then after the deliveries were checked off upon the yard books values were computed at the regular or agreed price, and the amounts were so as to put the entries somewhat in the form of an account which thereafter was copied by letter press in the book which comes to us as an exhibit and which was received in evidence. The persons who made the yard boobs, or the persons checking the deliveries of the lumber upon the yard books, did not testify so as to .authenticate the book which was prepared as the result of the information derived therefrom, and in this connection, without dwelling longer upon it,-1 will cite a paragraph from 17 Cyc. on page 394, which seems to have some pertinence. It was not one of the authorities, I believe, ■cited in argument, but in our examination of the question and discussion of it, we find the language, which seems to us to have .a legitimate bearing:

“Effect of co-operation in making entry, where one person makes .an entry from memoranda or information furnished by another, or two ■or more persons have otherwise co-operated in making an entry, the entry will be admissible in connection with the testimony of all the parties participating. Indeed it is held that where the clerk who makes the entries has no knowledge of their correctness, but makes them as the items furnished by another, as for instance where entries are made by a bookkeeper from reports made by a foreman, it is essential that in addition to the oath of the party making the entry, the party furnishing the items should testify to their correctness, or that satisfactory proof thereof — such as the transactions are reasonably susceptible of — from ■other sources should be produced. If the person furnishing the information or memoranda for the entries is dead or cannot be produced, the entries are admissible when supported by the testimony of the person making them, especially if supplemented by proof of the correctness of tlie memoranda.”

We think that the court erred in the admission of this book, and for this error the judgment should be reversed.

We think also that consideration should be given to the ruling of the court, admitting in evidence the impression copy of a statement ■sent, as alleged by the plaintiff below, to the defendant Falardeau in September of 1907, and other statements. I refer to this one because it seems of especial importance. It is found on page 50 of a book which is a sort of letter book, and contains the impressions of various communications from the plaintiff' below to the defendant. No notice had been served, as seems to be conceded, upon the defendant below to produce the original of this or the other statements, and yet the court permitted the book containing the copies to be given in evidence. The defendant in court testified that he had not considered these statements, although they bear his name, Falardeau, at the top, as intended to be charges against him, and that he had handed them over to the party whom he seems to deem the real debtor, the W.. H. H. Smith Company. He says that the statement at any rate was not in. his eustody at the time of the trial, and upon this fact it is urged that he not being able to produce the original, the copy became competent evidence. On page 534 of 17 Cyc., supra, we find this language::

“It makes no difference that the instrument is in the actual possession of some third person if it is still within the control of the adverse party, but under such circumstances the latter is held to his. obligation to produce the writing on notice, and upon his failure to-do so secondary evidence is admissible. And the same rule applies, where the document is in the eustody of another court from which it may be withdrawn, or is out of the jurisdiction. On the other hand, if the document is held by a third person and is not in the adverse-party’s control, the notice is inoperative, and the party’s failure to produce the document will not warrant the admission of secondary evidence, but the party seeking to introduce the evidence must summon the third person or show that with due diligence the document cannot be obtained.”

So far as we are apprised there was no effort to bring into court by subpoena duces tecum the party who had the actual possession of the originals of the statements copied into this letter book, and we think under this authority and also upon principle and in harmony with the rules which have been applied as to the admission of secondary evidence under some circumstances and its rejection under others, that the court should have rejected this book. The court erred in its. admission, and for this error the judgment should be reversed. We find no other prejudicial error in the record.

Parker and Kinkade, JJ., concur.


source: Caselaw Access Project

author: WILDMAN, J.

license: Public Domain

text:
    NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    December 4, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Hattie Krause v. Toledo Urban & Interurban Ry.
    An Intelligent Intervening Agency which Could not be Anticipated may Relieve Otherwise Negligent Conduct.
    A railroad company is not liable for an injury sustained by a person falling upon a trolley pole which had been left by servants of the company upon a grass plot near the sidewalk and was subsequently carried by children to an adjoining field and then returned to the street, and by a third person thrown upon the sidewalk where the injury complained of was sustained.
    [Syllabus approved by the court.]
    Error to Lucas common pleas court.
    .0. S. Brumback, for plaintiff in error:
    Cited and commented upon the following authorities: Elliott, Roads and Streets Secs. 645, 648; Nagle v. Brown, 37 Ohio St. 7; Murphy v. Leggett, 164 N. Y. 121 [58 N. E. Rep. 42]; Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507i]; Lynch v. Nurdin, 1 Q. B. 29; Clark v. Chambers, 3 Q. B. Div. 327; Lane v. Atlantic Works, 111 Mass. 136; Adams v. Young, 44 Ohio St. 80 [4 N. ÍJ. Rep. 599; 58 Am. Rep. 789]; Trent v. Railway, 59 111. 349; Cohen v. New York {Mayor), 113 N. Y. 532 [21 N. E. Rep. 700; 4 L. R. A. 406]; Sheridan v. Railway, 36 N. Y. 39 [93 Am. Dee. 490]; 21 Am. & Eng. Ene. Law pp. 485, 508, 509; Dussel v. Railway, 10 Dec. 631 (8 N. P. 622), affirmed Street Ry. v. Dussel, 52 Ohio St. 649; 1 Sherman & Red-field, Negligence Secs. 28, 29, 36; Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. Rep. 559; 60 Am. St. Rep. 700]; Pennsylvania Ry. v. Hope, 80 Pa. St. 373 [21 Am. Rep. 100]; Atchison, T. & S. F. Ry. v. Calhoun, 213 U. S. 1 [29 Sup. Ct. Rep. 321]; Milwaukee & St. P. Ry. v. Kellogg, 94 U. S. '469 [24 L. Ed. 256]; Griggs v. Fleckenstem, 14 Minn. 81; Maddox v. Cunningham, 68 Ga. 431 [45 Am. Rep. 500]; Pastene v. Adams, 49 Cal. 87; Carterville {Vil.) v. Cook, 129 111. 152 [22 N. E. Rep. 14; 4 L. R. A. 721; 16 Am. St. Rep. 248|]; Henry v. Dennis, 93 Ind. 452; Barrett v. Railway, 45 N. Y. 628; Ring v. Cohoes {City), 77 N. Y. 83 [33 Am. Rep. 574]; Kum v. Troy {City), 104 N. Y. 344 [10 N.' E. Rep. 442; 58 Am. Rep. 508]; Phillips v. Railway, 127 N. Y. 657 [27 N. E. Rep. 978]; Emporia {City) v. Schmidling, 33 Kan, 485 [6 Pae. Eep. 893]; Chacey v. Fargo {City), 5 N. Dak. 173 [64 N. W. Rep. 932]; Binford v. Johnston, 82 Ind. 426 [42 Am. Rep. 508],
    Harry W. Lloyd and King, Tracy, Chapman & Welles, for defendant in error:
    Cited and commented upon the following authorities: Cleveland. P. & E. Ry.'v. Nixon, 12 Circ. Dec. 79 (21 R. 736), affirmed. Nixon v. Railway, 68 Ohio St. 651; Kohler Brick Co. v. Gas. Co. 5 Circ. Dee. 379 (11 R. 379) ; Rowe v. Such, 134 Cal. 573 [66 Pac. Rep. 862; 67 Pac. Rep. 760]; Austin & N. W. Ry. v. Flannagan, 40 S. W. Rep. 1043 (Tex. Civ. App.); Chicago, B. & Q. Ry. v. Magee, 60 111. 529; 3 Bates, Plead. & Prac. p. 2278; Crawford v. Railway, 12 Dec. 17; Thompson, Negligence Sec. 7457, p. 498; Sec. 7471, p. 512; Wabash By. v. Billings, 212 111. 37 [72 N. E. Rep. 2], reversed, Wabash By. v. Billings, 105 111.. App_. Ill; Bond v. Bailway, 110 Mo. App. 131 [84 S. W. Rep. 124];; Moyer v. Stone Co. 119 Ga. 734 [46 S. E. Rep. 844]; Bichey v. Bail-way, 69 S. C. 387 [48 S. E-: Rep. 285] ; Nord v. Mining Go. 30 Mont. 48 [75 Pac. Rep. 681]; Luce v. Hassam, 76 Vt. 450 [58 Atl. Rep. 725]; Thompson, Negligence Sec. 7471, p. 994; Shrum v. Bailway, 10 Dee. 244 (8 N. P. 26) ; Baltimore & O. By. v. Lockwood, 72 Ohio St. 586 [74-N. E. Rep. 10711]; Drown v. Traction Go. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844] ; 29 Cye. 492, 493,. 494, 495, 496, 499, 500; Stephenson v. Gorder, 71 Kan. 475 [80 Pac. Rep. 938; 69 L. R. A. 246] ; Griffin v. Light & Power Co. 128 Mich. 653 [87' N. W. Rep. 888; 55 L. R. A. 318; 92 Am. St. Eep. 496i]; Cole v. Savings <& Loaoi Soc. 124 Fed. Rep. 113 [59 C. O. A. 113; 63 L. R. A. 416];. Kr&igh v. Westinghouse, G. E. <& Go. 152 Fed. Rep. 120 [11 L. R. A.. (N. S.) 684] ; Edgar v. Bailway, 32 Utah 330 [90 Pac. Rep. 745; 11 L. R. A. (N. S.) 738; 125 Am. St. Rep. 867] ; Glassey v. Bailway, 185-Mass. 315 [70 N. E. Rep. 199] ; McDonald v. Snelling, 96 Mass. (14 Allen) 290 [92 Am. Dec. 768]; Hobbs.v. Baüway, L. R. 10 Q. B. Ill;: Stone v. Bailway, 171 Mass. 536 [51 N. E. Rep. 1; 41 L. R. A. 794]; Lake Shore & M. S. By. v. Liidike, 69 Ohio St. 384 [69 N. E. Rep. 653] ; Minnear v. Holloway, 56 Ohio St. 148 [ 46 N. E. Rep. 636] ; Bhoadsv. Traction Go. 11 Dee. 597 (8 N. P. 638) ; Infant v. Huffman, 12 Dee.. 245.
   WILDMAN, J.

This is a proceeding to reverse the judgment of the court below in which Hattie Krause, now plaintiff in error, sued the defendant company upon a claim for damages for personal injury. She claims, that the defendant company was negligent in leaving a trolley pole-which came from one of its cars upon a grass plot near a sidewalk upon one of the streets of the city. The evidence discloses, or tends, to disclose at least, that the pole was lying there for some time, and children in playing with it took it out of the street into field, from which it was subsequently brought back, and finally, as testified to by one lady, a man driving an automobile struck it as it was projecting into the street, and th.en himself took it and threw it partly upon the sidewalk. Subsequently this lady, walking along the sidewalk, stumbled and fell over it, and received the injuries which make the-basis of her claim against the company.

We are unanimously of the opinion that the court below properly arrested the case from the jury at the close of the plaintiff’s evidence. There is no claim of error in the case relied upon, except that the court erred in this one respect. It is insisted that the evidence was such as to justify its submission to the jury as an issue of fact, and that the court usurped the province of the jury in directing a verdict. We think it bears little analogy to the ease of Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451: 4 Am. St. Rep. 507], where so dangerous a thing as a torpedo was left where children might play with it or others interfere with it, and where there was a certain element of danger which might be anticipated by the person leaving a thing of that kind to be meddled with and cause mischief. There is nothing peculiar about a trolley pole any more than the branch of a tree or anything which may fall upon a grass plot near a sidewalk which should induce the belief on the part of one leaving it in such a position that it may subsequently be thrown upon the sidewalk, and that persons traveling along the sidewalk may receive injuries therefrom. The court below, we are informed, arrested the case from the jury upon the ground that there was an intervening cause, the act of the children in removing the pole from the grass plot and carrying it into the adjacent held, and that the company after that would be relieved from responsibility in any event. We are inclined to think that the court was right in that view of it. It makes-no difference whether it is carried into an adjacent field or carried into China and brought back again. The remoteness of the place to-which it is carried by some intelligent agency is not of the slightest consequence. The principle is the same and is not affected by the extent of the distance which it travels. The other act to which I have already referred as testified to by one witness, the act of the chauffeur of the automobile .in placing it upon the sidewalk, recklessly and carelessly perhaps, is still another efficient intervening cause, the intervening act of an intelligent agency which could hardly be anticipated by the company when it left the pole in its first place. The trial judge-properly instructed the jury, and. the judgment of the court below is affirmed. We have examined the authorities cited by counsel for plaintiff in error and while some of them may have some tendency to sustain his contention, we think that they hardly bear it out in its fullness*, and we think that they should not be relied upon.

Parker and Kinkade, JJ., concur.


author: GIFFEN, J.

text:
    NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    January 15, 1909.]
    GIffen, Smith and Swing, JJ.

      Wm. Powell Co. v. Claude Gaskins.
    Fact of Injury by Explosion while Skimming Molten Brass Does ngt Raise Presumption of Negligence.
    No presumption of negligence on the part of an employer as a proximate cause of injury arises from the fact that plaintiff was injured by an explosion of gases while skimming the scum from molten brass in a crucible, consisting of brass ingots and oil brass turnings, in the absence of proof of sufficient strength of the scum to imprison gases and cause an explosion.
    Error to Hamilton common pleas court.
    T. M. Hinkle, Robertson & Buchwaiter and T. C. Jung, for plaintiff in error.
    Kinkead, Rogers & Ellis, for defendant in error.

      Reversing Gaskins v. Powell Co. 19 Dec. 717.

   GIFFEN, J.

The only ground of negligence relied upon i's stated in the petition as follows:

“That the defendant was guilty of carelessness and negligence in this, to wit: that it knew or should have known and was bound to know that the said brass turnings in said crucible were covered with oil and that therefore said vapors and gases were liable to form as aforesaid between the surface of said molten metal and the scum forming on the top thereof, and that an explosion was liable to happen if the plaintiff attempted to skim the surface of the same in the usual manner. That the plaintiff had no knowledge or information about these facts and that the defendant was guilty of carelessness and negligence in not advising the plaintiff thereof.”

It is self-evident that the oil on the brass turnings was consumed or passed off in the form of vapor long before the brass was melted and could not therefore have caused the explosion. There is no evidence tending to prove that ordinary brass, whether clippings or ingots, will in fusion form a scum sufficient to imprison vapors and gases between it and the molten metal.

The plaintiff has therefore failed to sustain the cause of action stated in the petition; but counsel contend that the evidence' makes a good cause of action and that the variance between the allegation and proof is immaterial. Evidence was offered tending to prove that brass sweepings gathered from the floor of the foundry contain nails, other particles of iron, sand and like impurities, and that when a shovelful of such sweepings is added to the ingots of brass in the crucible; a scum or slag during the process of melting forms upon the surface and holds the gases between it and the molten brass, and that some brass turnings contain iron and other impurities which would produce a like result, although it is admitted that brass turnings free from such impurities would not. At the conclusion of the evidence the court upon motion made by the defendant ruled out all the testimony pertaining to brass sweepings, so that the only material from which such scum could form are the brass turnings. The defendant knew that it was customary to add a shovelful of brass turnings to the other metal in the crucible, which practice was not ordinarily dangerous; but the evidence tending to prove that it knew or ought to have known that the brass turnings in this particular heat, as it is called, contained iron and other impurities that might cause the result claimed or be otherwise dangerous, is extremely meager, unless it be, as the trial court charged, the duty of the master to furnish reasonably safe appliances to the servant.

There are several cases- in the Ohio State Reports in which this duty is thus expressed, but the late case of the Cin. H. & D. Ry. v. Frye, 80 Ohio St. 289 [88 N. E. Rep. 642], the benefit of which the trial judge evidently did not have, places the limit of the master’s duty at ordinary care in providing a safe place and appliances. The great weight of the evidence is opposed to plaintiff’s theory of the ease either as presented by the pleadings or the evidence, and it is even more probable that the accident was caused by the use of a damp skimmer although by no means certain.

It is further claimed that the maxim “Bes ipsa loquitur” applies. A statement of this maxim by Shearman & Redfield on Negligence is cited with approval in the case of Cincinnati Trac. Co. v. Holzenkamp, 74 Ohio St. 379 [78 N. E. Rep. 529; 6 L. R. A. (N. S.) 800; 113 Am. St. Rep. 980]: ment of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. ’ ’

“Proof of an injury, occurring as the proximate result of an act of the defendant, which would not usually, if done with due care, have injured any one, is enough to make out a presumption of negligence. "When a thing which causes the injury is shown to be under the m-anage-

The act relied upon as a proximate cause of the injury both in the petition and the evidence is the use by the defendant in the crucible of oil brass turnings, and if the evidence shows that such use was the proximate cause, then, in the absence of explanation, the presumption might arise that defendant was negligent; but it is the failure of proof sufficient on this issue of which we complain.

Counsel for defendant in error say in their brier:

“Defendant introduced the testimony of several witnesses experienced from twenty-five or thirty years’ work, in mixing and handling metals, to the effect that there is a danger to explosion to be apprehended from- the melting of oil brass turnings with pure metal.”

If this were true, the defendant was required to explain why it permitted the use of brass turnings without giving due warning of the danger to plaintiff; but we think the record does not support the statement, nor does it show, by a preponderance of the evidence, from all sources, that the use of oil brass turnings with other brass metal, is liable to cause an explosion. Until some act of the defendant is shown to be the cause of the explosion it is premature to inquire whether negligence should be presumed or proved.

Special instruction No. 5 requested by the defendant does not embrace actual knowledge as well as probable knowledge of the danger-complained of, hence it was not error to refuse it. The judgment will be reversed for error in overruling the motion for a new trial upon the jround that the verdict is not sustained by sufficient evidence, and cause-remanded for a new trial.

jmith and Swing, JJ., concur.


author: METCALFE, J.

text:
    COUNTIES — PARTIES.
    [Guernsey (7th) Circuit Court,
    April Term, 1909.]
    Laubie, Cook and Metcalfe, JJ.
    Samuel Black v. Guernsey Co. (Comrs.)
    County Commissioners Liable foe Injuries Sustained Through Theib Negligence in Repair of National Toll Road.
    A hoard of county commissioners under Sec. 845 Rev. Stat. (Gen. Code 2408) may be sued for damages for personal injuries resulting from negligence in the repair of a national road upon which they exact tolls and exercise control by virtue of Sec. 4931 Rev. Stat. (Gen. Code 7524) et seq.

    [Syllabus approved by the court.]
    Error to Guernsey common pleas court.
    J. S. Black, for plaintiff in error:
    Cited and commented upon the following- authorities: Yunk&r v. Sandusky Co. (Comrs.) 31 O. C. C. 552 (11 N. S. 527) ; Morgan Co. (Comrs.) v. Transfer & Storage Co. 75 Ohio St. 244 [79 N. E. Rep. 237]; Ebert v. Pickaway Co. (Comrs.) 75 Ohio St. 474 [80 N. E. Rep. 5]; Salt Creek Val. Tpk. Co. v. Parks, 50 Ohio St. 568 [35 N. E. Rep. 304; 28 L. R. A. 769i]; State v. Wood Co. (Treas.) 17 Ohio 184; 11 Enc. Law (2 ed.) 353, 354, 355, 356; Faucher v. Tutewiller, 76 111. 194; Palatka & I. Ry. v. State, 23 Fla. 546 [3 So. Rep. 158; 11 Am. St. Rep. 395}; 1 Story, Construction (3 ed.) See. 454; Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1 [8 L. Ed. 25] ; 16 Cyc. 561; Hardin Co. (Comrs.) v. Coffman, 60 Ohio St. 527 [54 N. E. Rep. 1054; 48 L. R. A. 455i]; Hardin Co. (Comrs.) v. Coffman, 10 Circ. Dec. 91 (18 R. 254) ; Alexander v. Brady, 61 Ohio St. 174 [55 N. E. Rep. 173]; Low v. Leichty, 25 O. C. C.. 240 (1 N. S. 431) ; Mahoning Co. (Comrs.) v. Railway, 45 Ohio St. 401 [15 N. E. Rep. 468]; Burnell v. Traction Co. 19 Dec. 112 (7 N. S. 136).
    C. S. Sheppard, for defendant in error.
   METCALFE, J.

This action was brought to recover damages for injuries claimed to have been received in consequence of the alleged negligence of the defendant, the board of county commissioners. An amended petition was filed to which a demurrer was sustained, and the plaintiff not desiring to amend permitted judgment to Be taken against him on the pleadings, and the only question here is whether the facts averred in the amended petition state a cause of action against the defendant under favor of See. 845 Rev. Stat. (Gen Code 2408).

The facts averred and admitted to be true are, in substance, that the national road is a public highway under the care and control of the defendant, the board of county commissioners of Guernsey county, and upon which said board collects toll; that a culvert crossing said road had been permitted by the defendant board to become so out of repair as to cause a hole or depression five or six feet deep .and four or five feet wide on one side of the road; that the plaintiff was driving along said road with a single horse and buggy; that the horse became frightened at an' automobile and was partially unmanageable, and in endeavoring to get control of the horse the wheels of his buggy went into the hole in the culvert and the buggy was overturned, causing the injuries of which the plaintiff complains.

By the provisions of Sec. 845 Rev. Stat. (Gen. Code 2408), it is provided that, “any such board of county commissioners shall be liable in its official capacity for any damages received by reason of its negligence or carelessness in keeping any such road or bridge in repair.” The roads and bridges referred to in this section are such as the board of commissioners is by law required to have in its charge and to keep in repair.

Section 4931 Rev. Stat. (Gen. Code 7524, 7525), provides that the commissioners of counties through which any part of the national road passes shall take under their care and control in behalf of their respective counties so much of said road as lies within the limits of their counties respectively, and to keep them in such repair as is contemplated by the acts of congress ceding to the state the jurisdiction and control of such part of the national road as lies within the limits of the state; and limits the amount of tax which the county commissioners may raise for the repair or preservation of the road to the amount provided in the general statutes for the repair and preservation of county and state roads. The same section also gives to the county commissioners the power to order the trustees of any township through which the road passes to take under’ their care the portion thereof lying in their respective townships.

Under See. 4932 Rev. Stat. (Gen. Code 7527-7528) the commissioners are authorized to erect toll gates within their respective counties, to collect tolls, appoint collectors and remove them at pleasure, and fix the compensation for their services. They are also required to pay the tolls collected into the treasury of their respective counties each month “and the commissioners shall apply such money to the keeping in repair of said road within their respective counties. ’ ’ By the provisions of these sections it will be seen that the county commissioners are given by law complete jurisdiction over the national road in their several Counties, and are required by law to keep said road in repair, and the national road is made a part of the highway system of the state, governed by the laws of the state, as completely as any state or county road.

We are unable to see any distinction in principle or in fact between a highway constructed by the national government and ceded by it to the state and placed completely under the control of the state, and any other highway under the control of the state. It is not the character of the road that renders the county commissioners liable for its negligence, but the fact that the board has jurisdiction over it, and that the duty is imposed upon it by law to keep it in repair. We do not think the case of Younker v. Sandusky Co. (Comrs.), 31 O. C. C. 552 (11 N. S. 527), and the other cases cited bear out the contention of the defendant that the provisions of Sec. 845 Rev. Stat. (Gen. Code 2408), do not apply in this ease. We agree with all that is said in the cases cited that the provision of See. 845 Rev. Stat. (Gen. Code 2408) which makes the commissioners liable for acts of negligence is in derogation of the common law, and that its terms cannot be extended beyond their plain meaning. But we think it would be placing too strict and narrow a construction upon the statute to hold that it applies only to a part of the highway system of the state when its plain meaning seems to be that the commissioners shall be liable for any dereliction of duty in failing to beep in repair all roads under their jurisdiction, and which the laws of the state require them to keep in repair.

The demurrer to the amended petition is overruled and the case is remanded.

Laubie and Cook, JJ., concur.


author: SMITH, J.

text:
    CHARGE TO JURY.
    [Hamilton (1st) Circuit Court,
    January 8, 1910.]
    Giffen, Smith, and Swing, JJ.
    Hanauer Automobile Co. v. Percy Evans.
    Entire Evidence Must be in Bill of Exceptions to Enable Reviewing Court to Point out Errors in Charge.
    The entire evidence not being set out in bill of exceptions, a reviewing court cannot say that the portions of the general charge to jury which are complained of were not properly given.
    Error to Hamilton common pleas court.
    Tie plaintiff below recovered a verdict for $250 against the automobile company on account of injuries from being struck by one of their autos.
    Paxton, Warrington & Seasongood, for plaintiff in error:
    Cited and commented upon the following authorities: Latham v. Railway & Light Go. 19 Dec. 333 (8 N. S. 185); Cincinnati Traction Co. v. Forrest, 73 Ohio St. 1 [75 N. E. Rep. 818] ; Cincinnati Traction Co. v. Kroger, 30 O. C. C. 654 (10 N. S. 64) ; Cincinnati Interurban Co. v. Haines, 28 O. C. C. 443 (8 N. S. 77) ; Drown v. Traction Go. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844],
    Mitchell Wilby and C. B. Wilby, for defendant in error:
    Cited and commented upon the following authorities: Cincinnati Traction Co. v. Forrest, 73 Ohio St. 1 [75 N. E. Rep. 818]; Cincinnati Traction Co. v. Stephens, 75 Ohio St. 171 [79 N. E. Rep. 235]; Frizzell v. Railway, 124 Fed. Rep. 176; Cincinnati Traction Co. v. Kroger, 36 O. C. C. 654 (10 N. S. 64) ; Cincinnati Interurban Co. v. Haines, 2Í O. C. C. 443 (8 N. S. 77) ; Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844],
   SMITH, J.

Upon the authority of the Supreme Court in the recent case of Duffy v. Box Co. 81 Ohio St. 525, reversing Queen City Box Co. v. Duffy, 30 O. C. C. 819 (11 N. S. 69), the judgment of the trial court will be affirmed.

For aught that appears, the entire evidence not being set out in the bill of exceptions, we cannot say but that there was evidence upon which the court might properly charge as it did in those portions of the general charge complained of by plaintiff in error.

We do not think the court charged or intended to do so upon the doctrine of “last chance,” but merely called the attention of the jury to the duty that was upon the defendant if he saw the automobile approaching.

Finding no error in the record, the judgment is affirmed.


text:
    DAMAGES — TRIAL—VERDICT.
    [Hamilton (1st) Circuit Court,
    February 5, 1910.]
    Giffen, Smith and Swing, JJ.
    Interurban Ry. & Term. Co. v. John Bierman.
    1. Verdict fob $3,500 Damage for Injuries to a Driver Excessive when he Returned to Work in six Weeks.
    A verdict for $3,500 damage for injuries to a driver sustained by a collision with a car is excessive where it appears that plaintiff was able to return to permanent employment six weeks after the injury.
    2. Effect of Improper Remarks Made in Argument may not be Cured by Direction of Court to be Influenced by Evidence only.
    The effect upon the jury of improper remarks made by counsel in argument may not be removed and cured by the direction of the court to the jury to be influenced by the evidence only, and a new trial may be granted on the ground of such misconduct.
    Error to Hamilton common pleas court.
    The plaintiff was thrown from his seat on a wagon to the street in a collision with an interurban ear. He complained of severe injury to his spine and nervous shock. The jury gave him $4,500, but the trial judge reduced the verdict to $3,500.
    F. F. Dinsmore, for plaintiff in error.
    Theodore Horstman, for defendant in error.
   SMITH, J.

The court has carefully read the record in the above case and has hrd it under consideration for some time. While we think a verdict if properly rendered for defendant in error might not be against the weight of the evidence, yet we are of the opinion that the amount of the judgment to which the trial court reduced the original verdict is far in excess of what the defendant in error was entitled.

The evidence discloses that the defendant in error after being thrown out of employment for about six weeks on account of his injuries, returned to work, and practically had steady employment thereafter, earning as high as $1.75 a day.

It is hard to understand how a jury could return the verdict it did, unless it was influenced by something extrinsic of the evidence.

In this regard the record discloses what took place before the jury in argument, and sets forth certain statements made therein by counsel for defendant in error. While the trial court cautioned counsel, and told the jury to be influenced only by the evidence and not by any personal reference to counsel for the plaintiff in error, yet the statements had been heard by the jury, and we do not think their effect was removed. In such cases the jury is apt to try and determine the case as made by statements of attorneys rather than to determine it upon the evidence and the law. If justice is to be done in the trial of any ease it should be upon the latter two elements; all other things should [be eliminated, otherwise a fair conclusion cannot be reached.

It seems unnecessary to say anything further upon this matter, as, taken in connection with the amount of the judgment, we think its effect was harmful.

We find no error in the charge of the court, and would not attempt to say under the evidence in this case what the amount of the verdict should be, except that the present judgment is excessive. We believe that the case for the above reasons should be reversed and again submitted to a jury.

Judgment reversed.

Giffen and Swing, JJ., concur.


author: VOORHEES, J.

text:
    CORPORATIONS — INSURANCE, LIFE.
    [Coshocton (6th) Circuit Court,
    May Term 1910.]
    Taggart, Donahue and Voorhees, JJ.
    Northwestern Mutual Life Ins. Co. et al. v. Coshocton Glass Co.
    1. Insuring Company only may Interpose Objection of Lack of Insurable Interest in Beneficiary.
    Only the company issuing a policy of life insurance can take advantage of the fact that the payee named in the policy is not within the class which hy the constitution of the company is entitled to take the benefit; and where a policy of life insurance was valid at its inception and was procured in good faith, the beneficiary or an assignee may hold or enforce-the policy as against the claims of the executor, notwithstanding neither of them had any interest in the life of the insured.
    2. Termination of Interest of Beneficiary in Life of Insured before Death of Latter Immaterial.
    The fact that the interest in the life of the insured of the beneficiary under a valid policy ceased before the death of the insured is immaterial, unless such he the necessary effect of the provisions of the policy itself.
    3. Insurable Interest Founded on Contractual Relation, or Blood or. Affinity.
    One having an interest in the continuance of a certain life and an expectation of benefit to arise therefrom, whether founded upon a contractual relation or upon blood or affinity, has an insurable interest in that life.
    4. Right of Corporation to Insure Life of Officer.
    The right of a corporation to insure the life of an officer or employe of the-corporation depends upon the conditions existing at the time the policy was issued and the good faith of the transaction.
    5. -Termination of Relation of Employe of Corporation does not Invalidate Policy on His Life in Which Corporation is Beneficiary.
    Where a corporation has a pecuniary interest in a continuance of the life of one of its officers or employes, due to the fact that he alone has a full knowledge of the business and is experienced in its conduct and is giving his whole time to its superintendence, and the corporation is obtaining credit hy reason of the fact that its management is in his hands, and an application is made by him for a policy of insurance upon his life-made payable to the company and the premiums upon which are to be paid by tbe company, an insurable interest is shown and the good faitu of the transaction must he upheld; and in such a case the fact that the insured left the service of the corporation some time before his death occurred, and his executor is contesting the claims of corporation to the proceeds of the policy, is not sufficient to defeat the title of the corporation thereto.
    [Syllabus hy the court.]
    Error to Coshocton common pleas court.

      In February, 1904, the Coshocton Glass Company was a corporation under the laws of Ohio, engaged in manufacturing glass bottles and wares, with its office at Coshocton, Ohio. Its capital stock was $60,000 of which $35,000 was common stock and $25,000 was preferred. The common stock was owned by said Thomas J. Gainor then living, and one E. K. Sober and E. G. VanHorn, they having a controlling interest in the corporation. .The preferred stock was sold to citizens of Coshocton county to obtain working capital. During the summer and fall of 1904, in addition to selling the preferred stock to provide funds for operating expenses the company was borrowing largely from banks in Coshocton. The managing officers of the company were: President, E. K. Sober, vice president and general manager, Thomas J. Gainor; E. G. VanHorn was secretary and treasurer. These three men with Dr. H. B. McCurdy and Louis Brendel constituted the board of directors. Thomas J. Gainor was the only one of these officers who had any practical knowledge of the glass bottle business. He was a man of wide experience in that regard. Stock was sold and credit extended to the company by reason of Gainor’s position as manager.
    Prior to August 26, 1904, at the request of some of the stockholders and creditors of the company, Sober, VanHorn and Gainor arranged and agreed to procure insurance on their own lives in the sum of $10,000, for the benefit of the corporation, the Coshocton Glass Company, for the policy sued on this case, naming the said the Coshocton tion to the defendant, the Northwestern Mutual Life Insurance Company for the policy sued on in this ease, naming the said the Coshocton Glass Company as the beneficiary therein. The policy was issued September 13, 1904, and was one of two policies, each for the sum of $5,000 taken in pursuance of said arrangement, and was delivered to said company, said company paying the first, as well as all subsequent premiums on the policy, during the lifetime of Thomas J. Gainor, he paying no part thereof.
    About January 12, 1906, said Gainor, Sober and VanHorn sold all their stock and interest in said company to Hyppolyt and Charles A. Liewer, and from that time ceased to have any financial interest is said company; but Gainor continued in the employ of the company as its vice-president ánd superintendent until about September 1, 1906, when on account of ill health he resigned and moved from Coshocton to Newark. From September 1, 1906, until his death which occurred April 11, 1908, he had no connection with said company. The policy was continued in full force by the payment of the premiums by the Glass Company. When Gainor, Sober and VanHorn in January, 1906, sold their stock and interest in the Glass Company to the Liewer Bros, the policy in this case was assigned to them-as collateral security for loans made by them to the plaintiff company. Said Thomas J. Gainor and his wife, Mary M. Gainor, joined in said assignment. Afterwards, and in November, 1906, said Glass Company having liquidated the loans for which said policy was assigned as collateral security, said Glass Company desiring to have said policy released, said Thomas J. Gainor and Mary M. Gainor, his wife, for a good and valuable consideration executed and delivered to said the Coshocton Glass Company the written instrument attached to the bill of exceptions in this case and made a part thereof, marked plaintiff’s exhibit No. 2.
    Gainor died testate; his will was probated in Licking county and plaintiffs in error were appointed as executors thereof.
    After Gainor’s death the Glass Company gave notice and proof of death to the Insurance Company, and demanded payment; the executors did the same. The Insurance Company refused payment because of the conflicting claimants.
    This suit was brought by the Glass Company to enforce payment; the Insurance Company filed its answer and cross petition admitting its liability on the policy, but alleging its ignorance of the respective rights of the claimants, and asked permission of the court to pay the full amount into court and to be discharged. The prayer of the Insurance Company was granted, and the amount, to wit, $5000 was paid into court, and the cause proceeded to trial upon the issue joined between the plaintiff company and the executors, to the court, without the intervention of a jury, and resulted in a finding and judgment in favor of the plaintiff, the Coshocton Glass Company.
    Error is prosecuted to this court and a petition in error was duly filed by the executors of the estate of Thomas J. Gainor, deceased, for the purpose of reversing the finding and judgment of the court of common pleas, assigning numerous errors therefor.
    Flory & Flory, for plaintiff in error:
    Cited and commented upon the following authorities: Ryan v. Rottweiler, 50 Ohio St. 595 [35 N. E. Rep. 679]; Manhattan Ins. Co. v. Smith, 44 Ohio St. 157 [5 N. E. Rep. 417; 58 Am. Rep. 806]; Fraternal Mut. Ins. Co. v. Applegate, 7 Ohio St. 292; Eckel v. Renner, 41 Ohio St. 232; Evans v. Moore, 28 O. C. C. 1 (7 N. S. 123) ; Schott & Sons Co. v. Insurance Co. 19 Dee. 249 (7 N. S. 548) ; Security Mut. Life Ins. Co.
      v. Schott, 30 O. C. C. 656 (11 N. S. 401) ; National Mut. Aid Assn. v„. Gonser, 43 Ohio St. 1 [1 N. E. Rep. 11]; Warnock v. Davis, 104 U. S. 775 [26 L. Ed. 924]; Crotty v. Insurance Go. 144 U. S. 621 [12 Sup. Ct. Rep. 749; 36 It. Ed. 5661]; Mutual Life Ins. Go. v. Bicharás, 99 Mo.. App. 88 [72 S. W. Rep. 487] ; Strode v. Drug Co. 101 Mo. App. 627 [74 S. W. Rep. 379]; Qtánn v. Supreme Council, 99 Tenn. 80 [41 S. W. Rep. 343]; Morris v. Savings <& Banking Co., 109 Ga. 12 [34 S. E. Rep. 378; 46 L. R. A. 506]; Boiler v. Moore, 86 Ya. 512 [10 S. E. Rep. 241; 6 L. R. A. 136]; Tate v. Building Assn., 97 Ya. 74 [33 S. E. Rep. 382; 45 L. R. A. 243; 75 Am. St. Rep. 770] ; Trinity College v. Insurance Co. 113 N. C. 244 [18 S. E. Rep. 175; 22 L. R. A. 291]; Widaman v. Hubbard, 88 Fed. Rep. 806; Cammack v. Lewis, 82 U. S. (15 Wall.) 643. [21 L. Ed. 244]; Cheeves v. Anders, 87 Tex. 287 [28 S. W. Rep. 274;: 47 Am. St. Rep. 107] ; Mayher v. Insurance Co. 87 Tex. 169 [27 S. W. Rep. 124]; Mutual Life Ins. Co. v. Blodgett, 8 Tex. Civ. App. 45 [27 S. W. Rep. 2861]; Weigelma/n v. Bronger, 96 Ky. 132 [28 S. W. Rep. 334] ; Beard v. Sharp, 100 Ky. 606 [38 S. W. Rep. 1057]; Biner v. Biner, 166 Pa. St. 617 [31 Atl. Rep. 347; 45 Am. St. Rep. 693]; Lanouette v. Laplante, 67 N. H. 118 [36 Atl. Rep. 981]; Exchange Bank v. Loh, 104 Ga. 446 [31 S. E. Rep. 459; 44 L. R. A. 372] ; Irons v. Insurance Co. 128 Ky. 640 [108 S. W. Rep. 904; 129 Am. St. Rep. 318]; Bendet v.'Ellis, 120 Tenn. 277 [111 S. W. Rep. 795; IS L. R. A. (N. S.) 114; 127 Am. St. Rep. 1000',]; Mutual Life Ins. Co. v. Lane, 151 Fed. Rep. 276; 1 Cooley, Insurance pp. 270, 274, 278, 298,, 300, 301, 302, 308, 309, 215; Wilton v. Insurance Co. 34 Tex. Civ. App. 156 [78 S. W. Rep. 403]; Bramblett v. Hargis, 123 Ky. 141 [94 S. W.. Rep. 20] ; Dugger v. Insurance Co., 81 S. W. Rep. 335.
    Pomerene & Pomerene, for defendant in error:
    An insurable interest is not necessary where one causes his own life to be insured for the benefit of a stranger. Byan v. Bothweiler, 50' Ohio St. 601 [35 N. W. Rep. 679]; May, Insurance Sec. 75b; Blooming-ton Mut. Ben. Assn. v. Blue, 120 111. 121' [11 N. E. Rep. 394; 60 Am Rep. 5581] ; Martin v. Stubbings, 126 111. 387 [18 N. E. Rep. 657; 9 Am St. Rep. 620]; Kerr, Insurance pp. 679, 680; Milner v. Bowman, 119 Ind. 448 [21 N. E. Rep. 1094]; Langford v. Freeman, 60 Ind. 46; Campbell v. Insurance Co. 98 Mass. 381; Scott v. Dixon, 108 Pa. St. 6 [56 Am. Rep. 192] ; ■ Hill v. Insurance Co. 154 Pa. St. 29 [25 Atl. Rep. 771; 35 Am. St. Rep. 807]'; Fairchild v. Life Assn., 51 Yt. 613,; AetnaLife Ins. Co. v. France, 84 U. S. 561 [24 L. Ed. 287]; Alien v„
      Insurance Co., 72 Conn. 693 [45 Atl. Rep. 9551]; Albert v. Insurance Co., 122 N. C. 92 [30 S. E. Rep. 327; 65 .Am. St. Rep. 693] ; Van-Cleave v. Surety Co., 82 Mo. App. 668; Ashford v. Insurance Co., 80 Mo. App. 638; Croswell v. Indemnity Assn., 51 S. C. 103 [28 S. E. Rep. 200]; Goodrich v. Treat, 3 Col. 408; Classey v. Insurance Co. 84 Hnn. 350 [32 N. Y. Snpp. 335]; Tucker v. Insurance Co., 50 Hnn. 50 [4 N. Y. Supp. 505] ; affirmed, no op., Bennett, In re, 12 N. Y. 718 [24 N. E. Rep. 1102]; Prudential Insurance Co. v. Eunn, 21 Ind. App. 525 [52 N. E. Rep. 772; 69 Am. St. Rep. 380]; Olmsted y. Keyes, 85 N. Y. 593; Eess v. Segenfelter, 32 Ky. 225 [105 S. W. Rep. 476]; Vance, Insurance Sec. 49'; Eeinlein y. Insurance Co., 101 Mich. 250 [59 N. W. Rep. 615; 25 L. R. A. 627; 45 Am. St. Rep. 4091] ; Morrell v. Insurance Co., 64 Mass. (10 Cush.) 282 [57 Am. Dee. 92]; Connecticut Mut. L. Ins. Co. v. Schaefer, 94 U. S. 457 [24 L. Ed. 251] ; May, Insurance See. 112; Blisson, Insurance See. 76; Bacon, Insurance Sec. 729; Beach, Insurance Sec. 861; Joyce, Insurance See. 729; Bloomington Mut. Ben. Assn. v. Blue, 120 111. 121 [11 N. E. Rep. 331; 60 Am. Rep. 558]; Union Fraternal League v. Walton, 109 Ga. 1 [34 S. E. Rep. 317; 46 L. R. A. 424; 77 Am. St. Rep. 3501]; Northwestern Masonic Aid Co. v. Jones, 154 Pa. St. 99 [26 Atl. Rep. 25.3; 35 Am. St. Rep. 810] ; Albert v. Insurance Co., 122 N. C. 92 [30 S. E. Rep. 327; 65 Am. St. Rep. 693].
    The Glass Company had an insurable interest in the life of Gainor at the time the policy was issued. Elliott, Insurance See. 57; Warnock y. Davis, 104 U. S. 775 [26 L. Ed. 924]; Bliss, Life Insurance Sec. 21; Trenton Mut. L. Ins. Co. v. Johnson, 24 N. J. Law 576, 586; State v. Willett, 171 Ind. 296 [86 N. E. Rep. 68; 26 L. R. A. (N. S.) 1971]. Corson, Appeal of, 113 Pa. St. 446 [6 Atl. Rep. 213; 57 Am. Rep. 479]; Connecticut Mut Life Ins. Go. v. Schafer, 94 Ü. S. 457 [24 L. Ed. 251]; Mechanics Nat. Bank v. Comins, 72 N. H. 12 [55 Atl. Rep. 191; 101 Am. St. Rep. 650],
    Did its interest therein lapse when the insurable interest ceased? Elliott, Insurance See. 19; 1 Joyce, Insurance Secs. 25, 26; Nye v. Grand Lodge, 9 Ind. App. 131 [36 N. E. Rep. 429] ; Mutual Life Ins. Co. v. Allen, 138 Mass. 24 [52 Am. Rep. 245]; Trenton Ins. Co. y. Johnson, 24 N. J. L. 576; Bawls v. Insurance Co., 27 N. Y. 282 [84 Am. Dec. 286]; Olmstead y. Keyes, 85 N. Y. 593; Scott v. Dixon, 108 Pa. St. 6 [56 Am. Rep. 192] ; Sides v. Insurance Co. 16 Fed. Rep. 650; 1 Cooley’s Briefs, p. 311; Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457 [24 L. Ed. 251]; Manhattan Life Ins. Co. v. Eennessy, 99 Fed. Rep. 64; Bitter v. Smith, 70 Md. 261 [16 Atl. Rep. 890] 2 L. R. A. 844]; Mutual Life Insurance Co. v. Allen, 138 Mass. 24 [52 Am. Rep. 245]; Rawles v. Insurance Co., 27 N. Y. 282 [84 Am. Dec. 280]; Wright v. Life Assn. 118 N. Y. 237 [23 N. B. Rep. 186; 6 L. R. A. 731; 1.6 Am. St. Rep. 749] ; Qrattan v. Insurance Co. 15 Hun. (N. Y.) 74; Scott v. Dickson, 108 Pa. St. 6 [56 Am. Rep. 192] ; Corson, Appeal of, 313 Pa. St. 438 [6 Atl. Rep. 213; 57 Am. Rep. 479] ; Mowrey v. Insurance Co., 9 R. I. 346; 25 Cyc. 711; Joyce, Insurance Sec. 902; Elliott, Insurance Sec. 60; Rawls v. Insurance Co., 36 Barb. (N. Y.) 357;

      American Employers Liability Co. v. Barr, 68 Fed. Rep. 873 [16 C. C. A. 51; 32 U. S. App. 444]; Langdon v. Insurance Co. 14 Fed. Rep. 272; Robinson v. Accident Association, 68 Fed. Rep. 825; Provident Life & Ins. Co. v. Baum, 29 Ind. 236; Pacific Mut. Life Ins. Co. v. Williams, 79 Tex. 633 [15 S. W. Rep. 478] ; Elliott, Insurance Secs. 60, 63; Joyce, Insurance Sec. 902.
    The executors of Gainor’s estate cannot raise the question of lack of insurable interest, if the insurance company does not. Chicago Title & Trust Co. v. Haxtun, 129 111. App. 626; Standard Life & Acc. Ins. Co. v. Catlin, 106 Mich. 138 [63 N. "W. Rep. 897] ; Johnson v. Van Epps, 110 111. 552; Eosmer v. Welch, 107 Mich. 470 [65 N. W. Rep. 280; 67 N. "W. Rep. 504] ; Groff v. Insurance Co. 92 111. App. 207; Lang-ford V. Freeman, 60 Ind. 46; Diffenbach v. Insurance Co., 61 Md. 370. (This policy or contract was not a wager.)
   VOORHEES, J.

There is practically no conflict in the testimony as to the facts in this case, and-the main contention of the plaintiffs in error is that the plaintiff below, the Glass Company, had no insurable interest in the life of Mr. Gainor at the time the policy was issued, and therefore the contract of insurance was a wagering one and was void in its inception, or if the company had an insurable interest in Mr. Gainor’s life when the policy was issued, the interest lapsed and was lost when he, Gainor, ceased to belong to the company or to be an employe thereof.

These contentions raise the important legal questions involved i n the case, and they may be summarized as follows:

1. Is an insurable interest necessary where one causes his own life to be insured for'the benefit of a stranger?

2. Did the Glass Company have an insurable interest in the life of Mr. Gainor at the time the policy was issued?

3. If the Glass Company had an insurable interest in Gainor*s ]ife at the time the policy was issued, did its interest lapse when that interest ceased ?

4. Can the executors of Gain or’s estate raise the question of lack of insurable interest if the Insurance Company does not?

Considering the questions in the order named: It may be stated at the threshold of the inquiry that; the undisputed facts are that Gainor personally conducted the negotiations with the Insurance Company for the policy, signed the application and designated and had named therein the Glass Company as the beneficiary, causing his own life to be insured for the benefit of the company. In such case it is immaterial whether the company had an insurable interest in his life or not. When one causes his own life to be insured for the benefit of a stranger, the want of an insurable interest in the stranger will not invalidate the policy. Ryan v. Rothweiler, 50 Ohio St. 595, 601 [35 N. E. Rep. 679]; May, Insurance See. 750.

When a person effects insurance on his own life, and designates another as payee in the policy, without any fraud being practiced upon the insurer, the person named may maintain an action upon the policy without showing an insurable interest in the life of the insured. No one except the insured can take advantage of the fact that the payee named in the policy is not within the class which by the constitution of insurer is entitled to take the benefit. Kerr, Insurance pp. 679, 680; Milner v. Bowman, 119 Ind. 448 [21 N. E. Rep. 1094; 5 L. R. A. 95].

The weight of authority is, or seems to be that—

In the absence of bad faith or fraud, the insured may have the policy made payable to any one.

When a person takes out a policy of insurance upon his own life, and the amount is made payable to another having no interest in the life, or where the insured assigns his policy to one having no such interest, the beneficiary, or the assignee may hold and enforce the policy, if it was valid in its inception, and was procured or the assignment made in good faith. Olmstead v. Keyes, 85 N. Y. 593, 595.

Had the Glass Company an insurable interest in the life of Thos. J. G'ainor at the time the policy was issued ?

This involves a question of fact as well as of law. The right of a corporation to insure the life of an officer of the corporation or an employe in its service, depends upon conditions and the good faith of the transaction on which the insurance was obtained.

The record in this case shows that the Glass Company was engaged in a business of established lines of skilled workmanship; a large .amount of capital was invested in the plant and its stock, and liabilities were outstanding for loans. Only one of its officers, namely, Thos. J. Gainor, had experience and specialized knowledge and skill in the business in which he was engaged. He was its vice president and general manager, and was devoting his time and energies to the building up, establishing and superintending the enterprise. To him, creditors and stockholders alike looked and' largely depended upon him for the success of the company’s business. Mr. Gainor’s life by reason of his skill and ability in the business was a valuable asset of the company, ¿nd his death would be correspondingly a loss to the company financially. For these reasons, at least, if no other the company was financially interested in the life and the continuance of the life of Mr. Gainor.

We are conscious of the difficulty of defining with absolute precision what will in all cases constitute an insurable interest in the life of a person, so as to take a contract of insurance out of the class of wager policies. But we believe the test to be that where there is a reasonable ground, founded upon the relations of the parties to each other contractual, or by blood or affinity, whereby any pecuniary interest arises in the continuance of the life or expected benefit, or advantage from the continuance of the life of such person, there is an insurable interest in his or her life.

Elliott, Insurance Sec. 57 and Warnock v. Davis, 104 U. S. 775 [26 L. Ed. 924], seem to favor and support this principle.

Bliss, Life Insurance Sec. 21, says:

“The tendency of the American decisions, especially the' more recent ones, is to hold that wherever there is any well founded expectation of or claim to any advantage to be derived from the continuance of a life, there is an insurable interest in that life, though there may be no claim that can be recognized in law or equity.”

The interest required néed npt be such as to constitute the basis of any direct claim in favor of the plaintiff, the Glass Company, upon the life of the insured Gainor; it is sufficient if an indirect advantage may result to the plaintiff from the continuance of his life.

This principle is recognized and sustained by authority. Trenton Mut. L. Ins. Co. v. Johnson, 24 N. J. Law 576, 586; State v. Willett, 171 Ind. 296 [86 N. E. Rep. 68; 26 L. R. A. (N. S.) 197]; Corson, Appeal of, 113 Pa. St. 446 [6 Atl. Rep. 213; 57 Am. Rep. 479].

Did the Glass Company’s interest terminate or lapse when Gainor ceased to be an officer or employee of the company?

It is contended by plaintiff in error, that Gainor having left the services of the Glass Company on September 1, 1906, the company could not suffer any loss by hi's death in April, 1908, and therefore it could claim nothing under the policy. We do not agree with this contention, but on the contrary believe the rule to be that if a policy is valid at its inception because based on either an adequate insurable interest, or the policy was taken out by Gainor on his own life, the existence of such an interest at the maturity of the policy is immaterial. This doctrine is recognized and held to be law, by the great weight of authority in the United States, as will appear by 1 Cooley’s Briefs p. 311, wherein the author cites many authorities, among them Connecticut Mutual Life Ins. Co. v. Schaefer, 94 U. S. 457 [24 L. Ed. 251],

The fact that such interest ceased before the death of the assured is immaterial on the question of plaintiff’s right to recover, unless such be the necessary effect of the provisions of the policy itself. Joyce, Insurance Sec. 902; Elliott, Insurance Sec. 60.

If the Insurance Company does not raise the question as to want •of insurable interest of the Glass Company in the life of Gainor at the time the policy was issued, can the executors of his estate do so?

The Insurance Company recognized its liability on the policy and paid the full amount into court to be distributed under its order. The insurance company does not question the right of the Glass Company to recover for want of an insurable interest in the life of Gainor, but recognized the contract as a valid one and enforceable. Under these conditions, can be executors of Gainor’s estate defend against the claim •of the Glass Company, when the Insurance Company waived it?

No one'hut the insurer is entitled to interpose a defense of lack of insurable interest in the beneficiary named in the policy. We. think the weight of authority in this county is to this effect, as shown by the following cases: Chicago Title & Trust Co. v. Haxtun, 129 Ill. App. 626; Standard Life & Acc. Ins. Co. v. Catlin, 106 Mich. 138 [63 N. W. Rep. 897]; Johnson v. Van Epps, 110 Ill. 552; Hosmer v. Welch, 107 Mich. 470 [65 N. W. Rep. 280; 67 N. W. Rep. 504]; Graff v. Insurance Co., 92 Ill. App. 207; Langford v. Freeman, 60 Ind. 46, 55; Diffenback v. Insurance Co., 61 Md. 370; and Mechanics Nat. Bank v. Comins, 72 N. H. 12 [55 Atl. Rep. 191; 101 Am. St. Rep. 650].

It is not contended that the policy was void in its inception, or when taken out by Mr. Gainor on his own life, and the record does not show ■or tend to establish any bad faith on the part of the Glass Company in ac-cepting this policy, or in consenting to be named as the beneficiary therein. In short, the policy was applied for by Mr. Gainor on his own life in good faith and not for the purpose of speculating upon his life. The Insurance Company in issuing the policy also acted in good faith and raised no question as to the bona jides of the transaction, when the policy became payable upon the death of Mr. Gainor. These facts all appearing in the record show that no gambling element entered into' the contract of insurance.

“Public policy is that principle of law which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good. ’ ’

It may be true as an abstract proposition of law that a corporation has no insurable interest in the lives of members of its board of directors who are not indebted to it, but very different is the situation in this-case: Mr. Gainor, it appears from the record, possessed practical skill and knowledge of the business in which the corporation was engaged, he was its general manager, on whose life and the continuance of his life-at the time the policy w'as taken out by him depended the success of the enterprise, a situation very different from that of an ordinary director who usually serves without compensation.

Suppose we are wrong as to our third proposition of law, namely,, that the Glass Company’s interest in the policy did not lapse when Gainor’s interest in, and employment with the company ceased. Yet. if the policy taken out by.Gainor on his own life was in good faith, and there is nothing shown to the contrary, he could dispose of the policy by sale or transfer in the absence of prohibitory legislature or contract, stipulation. Eckel v. Renner, 41 Ohio St. 232.

The sale and transfer made by Gainor and his wife of the policy in. this case, as evidenced by plaintiff’s exhibit No. 2 attached to the bill of exceptions, divest both he and his wife of all interest in the policy. Under these conditions neither Gainor, at the time of his death, nor his executors or his wife have any interest in the policy or the fund which the Insurance Company, has paid into court.

Without pursuing the discussion further, we are unanimously of the opinion that there is no error in the record of this case and the judgment is affirmed with costs, without penalty, costs to be paid out of the fund arising on the policy; exceptions are noted and the cause is remanded.' to the common pleas court for execution.

Taggart and Donahue, JJ., concur


author: VOQRHEES, J.

text:
    ASSIGNMENTS — INSURANCE.
    [Coshocton (6th) Circuit Court,
    May Term, 1910.]
    Taggart, Donahue and Voorhees, JJ.
    Coshocton Glass Co. v. Northwestern Mutual Life Ins. Co. et al.
    Assignment of Life Policy to Corporation Having Interest in Life of Insured may be Predicated Upon Intention of Insurance Company to Deliver to Corporation.
    G having decided to accept a policy issued upon- his life with his wife named as beneficiary, it was thereafter agreed that on account of the interest which the corporation of which G was an officer had in a continuance of his life, that the policy in question should be delivered to the corporation, which should pay the premiums coming due thereunder and should become the payee thereof: Held, That the corporation had an insurable interest in the life of G, and that the intention of the insurance company to deliver the policy to the corporation and of the corporation to accept it operated under the circumstances as an assignment of the policy to the corporation without the formality of a written contract of assignment.
    [Syllabus by the court.]
    Appeal from Coshocton common pleas conrt.
    ■This case was tried in the court of common pleas upon the issues made in the pleadings and evidence, resulting in a finding and judgment in favor of the plaintiff, the Coshocton Glass Company. Appeal was taken to this court, and was submitted to the court upon the pleadings and evidence. By the agreement of the parties, the testimony, evidence and exhibits that were introduced in the court below by the plaintiff and defendants respectively, were introduced and used by the parties respectively as evidence, being all the evidence that was offered or submitted to the court on the trial of this case.in the. circuit court:
    Thereupon, the court upon request of the parties separately stated its finding of facts and' conclusions of law as follows, to-wit:
    1. That the Coshocton Glass Co. is a corporation under the laws of Ohio, having been incorporated in March, 1904, for the purpose of manufacturing, selling and dealing in glass bottles, glass jars and all other forms and kinds of glass ware, and of doing all other acts and things incidental to or connected with said business.
    2. That said the Coshocton Glass Company was organized by said decedent, Thomas J. Gainor, E. E. Sober and E. C. VanHorn, that said three men were the principal stockholders of said company, owning and holding all of the common stock from the time of its organization until about January 12, 1906, and at the time of the application for and issuance of the policy sued on in the petition, said three men owning all of the common stock, and were executive officers of the company, that is, B. K. Sober was the president, Thomas J. Gainor the vice-president and general manager, and E. O. VanHorn the secretary and treasurer; and further, that during all of said time from the organization of-the company to January 12, 1906, the said Thomas J. Gainor was the vice-president and general manager of said company.
    3. That at the time of the organization of said company and at the time of the application for an issuance of the policy set forth in the petition, the said Thos. J. Gainor was a man of wide experience in the practical management and conduct of the glass manufacturing and bottle blowing business; that he was devoting his entire time to promoting said company and building up its business; that his life was of great importance and financial value to said company, and that he was the only man in the executive force of said company who had experience in business of the nature for which this company was organized; and that said Gainor continued in such position and relation to said company until about September 1, 1906.
    4. That prior to August 26, 1904, said Thomas J. Gainor, E. K. Sober and E. G. VanHorn entered into an arrangement wherein each was to take out insurance upon his own life in the sum of ten thousand dollars ($10,000) for the benefit of the Coshocton Glass Company; and that in pursuance of said arrangement, said three men, to-wit: Thos. J. Gainor, E. K. Sober and E. G. VanHorn each did procure and take out insurance on his own life in the sum of ten thousand dollars ($10,000) for the benefit of said the Coshocton Glass Company.
    5. That the policy sued on in this action, being number 592,236, was one of two policies, each of the sum of five thousand dollars ($5,000) taken in pursuance of that arrangement, in the Northwestern Mutual Life Insurance Company; that on or about August 26, 1904, said Gainor applied to said Insurance Company for a five thousand dollar ($5,000) policy naming his wife, Mary M. Gainor, as beneficiary thereof; that at the request of the agent of the Insurance Company soliciting said insurance, the said Insurance Company issued two policies on that application, each for the sum of $5,000; that said agent sought to deliver both of said policies to said Gainor in an effort to have said Gainor take out $10,000 of insurance for the benefit of his said wife; that said Gainor accepted only one of said policies and refused to accept or pay for the other, the one refused being the same ipoliey sued on in this action; that later on, and about September 13, 1904, the said Gainor in pursuance of the arrangements entered into by said three men, to-wit: Thomas J. Gainor, E. K. Sober and E. G. VanHorn, made application to the insurance company for a five thousand dollar ($5,000) policy with the Coshocton Glass Company as beneficiary, and at the same time directed the. agent to deliver both of said policies, to-wit: that numbered 592,236 and 595,029, to the plaintiff as a part of said arrangement with said Thomas J. Gainor and ■said Insurance Company for taking out $10,000 of insurance on his own life for the benefit of the Coshocton Glass Company; that said policy number 592,236 was delivered to and accepted by said plaintiff with the understanding and arrangement that the.beneficiary named therein was to be changed, and the plaintiff to be named as and to become the real beneficiary; and that said policy was never delivered either to the assured Gainor, or to the beneficiary named therein, to-wit: Mary M. Gainor, his wife, but was delivered to the Coshocton Glass Company as a part of the arrangement above set forth.
    6. That said policy and another policy for like amount, the latter being number 595,029, and being the same policy sued on in the case of the Coshocton Glass Company v. Northwestern Mutual Life Insurance Co. and William T. Giffen and Jasper M. Keckley as executors of the estate of Thomas J. Gainor, deceased, being case No¿ 4256 in the court of common pleas of Coshocton county, Ohio, were together delivered to the Coshocton Glass Company by the Northwestern Mutual Life Insurance Company on pr about September 13, 1904, and that said Glass Company paid the first premium of $233.41 on each of said policies and continued to pay an annual premium thereon of like amount, on September 13, for the years 1905, 1906 and 1907; that neither said Thomas J. Gainor nor said defendant, Mary M. Gainor, paid any part of said premium, but all premiums on said policy falling due in the lifetime of said Thomas J. Gainor were paid by this plaintiff.
    7. That said Gainor represented to creditors of said Glass Company and to banks, from which he was seeking to procure and did procure loans of money for said the Coshocton Glass Company, and to persons whom he sought to induce and did induce to become purchasers of stock in said Glass Company, that said two policies of insurance on his life belonged to and were assets of said Glass Company.
    8. That on or about January 12, 1906, said Gainor, Sober and VanHorn sold and transferred to Hyppolyt Liewer and Charles A. Liewer all of the stock and all of the interest they had in and to said the Coshocton Glass Company, and from that time ceased to have any pecuniary interest therein, but said Gainor continued in the employ of said Glass Company as vice-president and superintendent of its business in the manufacturing of glass bottles, until September 1, 1906, at which time on account of ill health he resigned his position, which resignation was accepted by said company and thereafter said Gainor ceased to have any connection with said Glass Company as servant, employe or otherwise; that at the time said Gainor sold his said stock in the Coshocton Glass Company to said Hyppolyt Liewer and Charles A. Liewer he represented to said purchasers that said two policies of insurance on his life belonged to and were assets of the Coshocton Glass Company.
    9. That after said Gainor, Sober and VanHorn had transferred all of their interest in said Glass Company to said Liewers, said Glass Company permitted the policies upon the lives of Sober and VanHorn to lapse, but the two policies hereinbefore mentioned on the life of said Gainor, who by September, 1906, had become in ill health, were kept in full force by the payment of the premiums thereon by said the Coshocton Glass Company.
    10. That on delivery of said policies, being numbers 592,236 and 595,029, said two policies together Avith the policies on the lives of Sober and VanHorn were placed in the safe of said Glass Company, and there remained in the possession of said Glass Company until surrendered to said Insurance Company Avhen the proceeds thereof AA'ere paid into court. Said Glass Company understood that said Policy number 592,236 had been assigned to it as beneficiary at the time same was delivered, to-wit, on September 13, 1904; that on or about January 20, 1906, said policy of insurance was assigned to Hyppolyt LieAver and Charles A. Liewer as collateral security for indebtedness OAAdng to said Hyppolyt Liewer and Charles A. Liewer by said Glass Company, said assignment being executed by both Thomas J. Gainor and Mary M. Gainor; that thereafter and about November, 1906, said policies were taken to the attorney of said Glass Company for the purpose of securing a release of said policy from said Liewers to said Glass Company, at which time the discovery was made by the attorney of said Glass Company that said policy had never been assigned and transferred to the Glass Company in accordance with the arrangement and understanding had on or about September 13, 1906, when said policy was delivered to and accepted by said Glass Company; that thereupon for the purpose of carrying out the arrangements aforesaid, said assignment of November 16, 1906, for the considerations therein mentioned (a copy of Avhieh is attached to the petition and marked exhibit 1 and here referred to and made a part hereof) was executed and delivered to said Glass Company by said Thomas J. Gainor and Mary M. Gainor and the said Hyppolyt Liewer and Charles A. Liewer; that no money or other consideration of value other than, as set forth in said assignment of November 16, 1906, was paid to Mrs. Gainor at the time of executing said assignment.
    11. That at the time said Mary M. Gainor executed the assignment of November 16, 1906, there were no false or fraudulent representations made to said defendant Mary M. Gainor by either Hyppolyt Liewer, Charles A. Liewer or the plaintiff, or by any one representing them or either of them, and that in executing said assignment said defendant Mary M. Gainor did not rely upon any false or fraudulent representations made either by said Liewers or said plaintiff, or any one representing them, or either of them.
    12. That said Thomas J. Gainor died intestate on April 11, 1908, leaving the defendant Mary M. Gainor his widow, and his last will and testament which has been duly admitted to probate and record in the probate court of Licking county, Ohio, and that Jasper M. Keckley and William T. Giffen have been duly appointed and qualified by said probate court as executors of said last will and testament.
    13. That on or about April 18, 1908, said plaintiff gave to the defendant, the Northwestern Mutual Life Insurance Company, due notice and proof of the death of said Thomas J. Gainor in conformity with the requirements of said policy and demanded payment thereof; that on or about April--, 1908, said defendant Mary M. Gainor gave like notice to said Insurance Company and demanded payment of said policy, and thereafter and on or about November 23, 1908, said defendant, the Insurance Company, acknowledged its liability on said policy and paid the proceeds of said policy into court of common pleas of Coshocton county, Ohio, where the same is now being held awaiting final disposition by the court.
    14. That no relation of debtor and creditor existed between said decedent Gainor and said the Coshocton Glass Company, and said policy was not issued as collateral security for a debt.
    Conclusions of Law.
    1. That said contract of insurance was taken out by said decedent Thomas J. Gainor on his own life in favor of said the Coshocton Glass Company'in good faith, and that said contract was in no sense a speculative or wagering one; that no gambling element enters into said contract of insurance, and that the payment of the premiums thereon was not a speculative investment.

      2. That under the facts disclosed by the evidence and found as hereinbefore set forth, said Thomas J. Gainor had full right to make application for and to take out said policy of life insurance on his own life for the benefit of said the Coshocton Glass Company, and it is immaterial whether or not the Glass Company had an insurable interest in the life of said Gainor at the time of issuing of said policies, or that said insurable interest continued until the time of his death; and that the interest of said Glass Company in and to said policy did not lapse and said policy did not become void at the time said Thomas J. Gainor left the employ of said Glass Company. ,
    3. That under the facts disclosed by the evidence and found as hereinbefore set forth, said defendant Mary M. Gainor never acquired or had any interest in said policy as beneficiary or otherwise; that the right as beneficiary under this policy passed to and vested in this plaintiff, the Coshocton Glass Company, upon the delivery of said policy to said Glass Company by said Insurance Company on September 13, 1904, that having been done under the arrangement of said decedent Gainor, Sober and VanTIorn and the assent thereto and acceptance of said policy by said Glass Company.
    4. That under the facts as disclosed by the evidence and fonnd as hereinbefore set forth, neither said decedent, his estate, nor said defendant Mary M. Gainor had any interest, legal or equitable, in said policy at the time of the death of Thomas J. Gainor, and further, at the time of said death of said Thomas J. Gainor, said plaintiff company was, and still is the absolute owner of said policy and the proceeds thereof.
    . ■ 5. That the full amount of the money due on said policy and * which has heretofore been paid into court of common pleas of Coshocton county, Ohio, by said the Northwestern Mutual Life Insurance Company, and is now held subject to the order of this court, except thereof so much as is necessary to pay the costs of this action, belongs to said plaintiff, the Coshocton Glass Company, and it is entitled to receive the full amount of said’ policy, except the amount of the costs herein and that said defendant Mary M. Gainor is entitled to receive no part of said amount.
    Pomerene & Pomerene, for plaintiff:
    In addition to the authorities cited in the Northwestern Mutual Life Insurance Company v. Coshocton Glass Company, 31 O. C. C., counsel cited: Crittenden v. Insurance Co. 41 Mich. 442 [2 N. W. Eep. 657]; Travelers’ Ins. Co. v. Grant, 54 N. J. Eq. 208 [33 Atl. Eep. 1060]; Lord v. Insurance Co. 95 Tex. 216 [66 S. W. Rep. 290; 56 L. R. A. 596; 93 Am. St. Rep. 827].
    Policies of life insurance may be assigned by parol. Barron v. Williams, 58 S. C. 280 [36 S. E. Rep. 561; 79 Am. St. Rep. 840]; State v. Tomlinson, 16 Ind. App. 662 [45 N. E. Rep. 1116; 59 Am. St. Rep. 335]; Kelso v. Kelso, 16 Ind. App. 616 [44 N. E. Rep. 1013]; Kami v. Insurance Co. 197 Pa. St. 276 [47 Atl. Rep. 200; 80 Am. St. Rep. 819].
    An insurable interest is not necessary in the assignee of a valid life policy. Curtiss v. Insurance Co. 90 Cal. 245 [27 Pac. Rep. 211; 25 Am. St. Rep. 114]; Sheets v. Sheets, 4 Colo. App. 450 (36 Pac. Rep. 310) ; Union Fraternal League v. Walton, 109 Ga. 1 (34 S. E. Rep. 317; 46 L. R. A. 424; 77 Am. St. Rep. 350) ; State v. Tomlinson, 16 Ind. App. 662 (45 N. E. Rep. 1116; 59 Am. St. Rep. 335); Souder v. Friendly Society, 72 Md. 511 (20 Atl. Rep. 137); Thomas v. Cochran, 89 Md. 390 (43 Atl. Rep. 795; 46 L. R. A. 160); Mutual Life Ins. Co. v. Allen, 138 Mass. 24 (52 Am. Rep. 245);. Murphy v. Bed, 64 Miss. 614 (1 So. Rep. 761; 60 Am. Rep. 68); Olmsted v. Keyes, 85 N. Y. 593; Valton v. Assurance Co. 20 N. Y. 32; Bawls v. Insurance Co. 27 Barb. (N. Y.) 282 (84 Am. Dec. 280); Satin v. Phinney, 134 N. Y. 423 (31 N. E. Rep. 1087; 30 Am. St. Rep. 681); Clark v. Allen, 11 R. I. 439 (23 Am. Rep. 496) ; Cronin v. Insurance Co. 20 R. I. 570 (40 Atl. Rep. 497); Fairchild v. Life Assn., 51 Vt. 613; Strike v. Insurance Co., 95 Wis. 583 (70 N. W. Rep. 819); Bursinger v. Bank of Water-town, 67 Wis. 75 (30 N. W. Rep. 290; 58 Am. Rep. 848); Kurd v. Doty, 86 Wis. 1 (56 N. W. Rep. 371; 21 L. R. A. 746); Crosswel v. Indemnity Assn., 51 S. C. 103 (28 S. E. Rep. 200) ; Eckel v. Benner, 41 Ohio St. 232; Si. John v. Insurance Co., 13 N. Y. 31 [64 Am. Dec. 529],
    If a policy of insurance on the life of another is issued to a person having an insurable interest in such life, an assignment of such policy to a person having no insurable interest does not render the assignment void. Mutual Life Ins. Co. v. Allen, 138 Mass. 24 [52 Am. Rep. 245].
    Assignment of policy and principles controlling. Steintack v. Diepentrock, 1 App. Div. 417 [37 N. Y. Sup. 279]; St. John v. Insurance Co., 13 N. Y. 31 [64 Am. Dee. 529]; Valton v. Assurance Co., 20 N. Y. 32; Olmstead v. Keyes, 85 N. Y. 593; Kogle v. Insurance Co., 29 N. Y. 567; Palmer v. Merrill, 6 Cush. (Mass.) 282; Mutual Life Ins. Co. v. Allen, 138 Mass. 24 [52 Am. Rep. 245]; Tateum v. Boss, 150 Mass. 440 [23 N. E. Rep. 230]; Dixon v. Insurance Co., 168 Mass. 48 [46 N. E. Rep. 430]; Brown v. Life Assn., 172 Mass. 498 [53 N. E. Rep. 129]; King v. Cram, 185 Mass. 103 [69 N. E. Rep. 1049]; Bittler v. Smith, 70 Md. 261 [16 Atl. Rep. 890; 2 L. R. A. 844]; Souder v.
      Friendly Society, 72 Md. 511 [20 Atl. Rep. 137]; Robinson v. Hurst, 78 Md. 59 [26 Atl. Rep. 956; 20 L. R. A. 761; 44 Am. St. Rep. 266]; Clogg v. McDaniel, 89 Md. 416 [43 Atl. Rep. 795]; Bursinger v. Bank of 'Watertown, 67 Wis. 75 [30 N. W. Rep. 290; 58 Am. Rep. 848]; Foster v. Gile, 50 Wis. 603 [7 N. W. Rep. 555; 8 N. W. Rep. 217]; Amick v. Butler, 111 Ind. 578 [12 N. E. Rep. 518; 60 Am. Rep. 722] ; Milner v. Bowman, 119 Ind. 448 [21 N. E. Rep. 1094; 5 L. R. A. 95]; Fitzgerald v. Insurance Co., 56 Conn. 116 [13 Atl. Rep. 673; 17 Atl. Rep. 411; 7 Am. St. Rep. 288]; Bowen v. Life Assn., 63 Conn. 460 [27 Atl. 1069]; Martin v. Stubbings, 126 111. 387 [18 N. E. Rep. 657; 9 Am. St. Rep. 620]; Farmers’ & Traders’ Bank v. Johnson, 118. Iowa 262 [91 N. W. Rep. 1074]; Chamberlin v. Butler, 61 Neb. 730 [86 N. W. Rep. 481; 87 Am St. Rep. 478]; Union Fraternal League v. Walton, 109 Ga. 1 [34 S. W. Rep. 317; 46 L. R. A. 424; 77 Am. St. Rep. 350]; Mechanics Nat. Bank v. Comins, 72 N. H. 12 [55 Atl. Rep. 191; 101 Am. St. Rep. 650]; Harrison v. Insurance Co., 78 Vt. 473 [63 Atl. Rep. 321; 112 Am. St. Rep. 932]; Clark v. Allen, 11 R. I. 439 [23 Am. Rep. 496]; Bowen v. Life Assn., 63 Conn. 460 [27 Atl. Rep. 1059]; Dixon v. Insurance Co., 168 Mass. 48 [46 N. E. Rep. 430]; Murphy v. Reed, 64 Miss. 614 [1 So. Rep. 761; 60 Am. Rep. 68] ; Rylander v. Allen, 125 Ga. 206 [53 S. E. Rep. 1032; 6 L. R. A. (N. S.) 128] ; New York Mut. L. Ins. Co. v. Armstrong, 117 U. S. 591 [6 Sup. Ct. Rep. 877; 29 L. Ed. 997]; Warnock v. Davis, 104 U. S. 775 [26 L. Ed. 924] ; Gordon v. Bank, 132 Fed. Rep. 444 [65 C. C. A. 580; 67 L. R. A. 550] ; McNevins v. Insurance Co., 57 Misc. 608 [108 N. T. Sup. 745].
    Flory & Flory, for defendant.
   VOQRHEES, J.

This cause and case No. 189, heard on error at this term, in many respects are similar as to the facts, yet the issues as made up by the pleadings are quite different. Mary M. Gainor in her amended answer and cross petition alleges that the plaintiff, the Glass Company, had no insurable interest in the life of Mr. Gainor, her husband, at the time the insurance policy sued on in this ease was issued; but that the alleged assignment of the policy on November 16, 1906, to plaintiff company was procured through the false statements and representations made to her by Hyppolyt and Charles A. Liewer and the plaintiff, said the Coshocton Glass Company. The plaintiff by reply denies these charges of fraud and false representation. There is a failure of proof of these averments of fraud or false representations contained in the amended answer and cross petition of Mary M. Gainor. By her testimony it is conclusively shown that no representations of any kind were made to her by either of the Liewers or any one acting for them or for the plaintiff company.

The questions of law in this ease are substantially the same as those in the error case No. 189 of the Coshocton Glass Co. v. Northwestern Mutual Life Insurance Co. and the executors of Thomas J. Gainor, deceased, decided at this term; and it will not be necessary to repeat what was said by the court in its decision on the questions of law that are common in these two cases. Proceeding to consider the •questions not raised or involved in case No. 189, and which are pertinent to the issues of law and fact in this case, the additional questions presented are—

1. What interest, if any, did the defendant, Mary M. Gainor, acquire or have in policy number 592,236, sued on in this case?

2. Did the defendant, Mary M. Gainor, assign her interest in said policy to the plaintiff company? If so, what is the effect of the assignment?

3. Is an insurable interest in the life of the insured in favor o£ the assignee of a valid life policy necessary to enable the assignee to recover the amount of the policy upon the death of the insured ?

The evidence shows that policy number 592,236 was issued by the Insurance Company at the request of the agent McConnell, at a time when Mr. Gainor was getting insurance for the benefit of his wife, Mary M. Gainor, and shortly before he took out policy number 595,229 ■.on his own life for the benefit of the plaintiff, the Coshocton Glass ■Company. McConnell testifies he asked his company to send him two -$5,000 policies instead of one, believing that he could get Mr. Gainor to take out $10,000 of insurance for the benefit of his wife.

When the two policies were received by McConnell, the agent, he •offered them to Mr. Gainor, who declined to accept the second policy, ■and the policy was returned to the home office of the company and was never delivered to or accepted by Mr. Gainor. At the time Mr. Gainor was getting the insurance for the benefit of his wife, he — Gainor— Sober and YanHorn were considering a proposition to take out insurance on their lives respectively, each in the sum of $10,000 for the benefit of the plaintiff company. Mr. Gainor conducted the negotiations for the contemplated policies and in connection therewith asked the agent McConnell if they could not use the said policy which had not been delivered to him, Gainor, being p'aid policy number 592,236, which had Mary M. Gainor’s name therein as beneficiary, by assigning ■it to the Glass Company, plaintiff herein. Mr. McConnell advised him that could be done, and thereupon, on Gainor’s application, two policies, namely, number 592,236, the one sued on in this action, and number 595,029, the policy mentioned in error case No. 189 in this court, were delivered to the plaintiff company, with the understanding that policy number 592,236 was to be assigned to the said plaintiff company. Those facts appear in the testimony of Mr. McConnell and are not disputed.

Upon the delivery of these policies to the plaintiff company, it paid the initial or first premiums on both. This is a circumstance tending to corroborate the testimony of Mr. McConnell in his statement that policy number 592,236 was to be issued in favor of the plaintiff' company. These two policies together with the policies taken on the lives of Sober and VanHorn were placed in the safe of the plaintiff' company, and there remained until Mr. Gainor sold his interest in the company, when they were taken out for the purpose of assigning and transferring them to the Liewer brothers as collateral security for a. loan they had made to the plaintiff company; an assignment was made, Mr. Gainor and his wife, Mary M. Gainor, both joining in the assignment. It was then, about November, 1906, discovered that this policy, number 592,236 had not been transferred to the company but contained the name of Mary M. Gainor as beneficiary. Thereupon, on November 16, 1906, for a good and, valuable consideration said Thomas-J. Gainor and Mary M. Gainor executed and delivered to the Coshocton Glass Company the instrument in writing which was offered and received in evidence in this ease; being plaintiff’s exhibit No. 1 as shown in the transcript of the evidence given in the trial of this case.

As we have found from the testimony, there was no delivery of this policy number 592,236, to Thomas J. Gainor, or to the defendant, Mary M. Gainor, and neither he nor she had any interest therein at the time of the death of Thomas J. Gainor. At the time of his death, both the legal and equitable title to said policy was in the ülaintiff, the Coshocton Glass Company.

We find from the testimony it was the intention of the Insurance Company to deliver this policy to the plaintiff company, and of the plaintiff company to accept the same. Therefore, we hold that a delivery of the policy under such circumstances operates as an assignment without the formality of a written contract. Crittenden v. Insurance Co., 41 Mich. 442 [2 N. W. Rep. 657]; Travelers’ Ins. Co. v. Grant, 54 N. J. Eq. 208 [33 Atl. Rep. 1060]; Lord v. Insurance Co., 95 Tex. 216 [66 S. W. Rep. 290; 56 L. R. A. 596; 93 Am. St. Rep. 827],

The contention of the-defendant, Mary M. Gainor, that the plaintiff company had no insurable interest in the life of the assured, Thomas J. Gainor, when the policy was issued, and therefore this policy is void is not a correct statement of the law; and the decided weight of the modern adjudicated cases in this country show to the •contrary. Many of the cases which hold that an assignment without interest is void, will, upon examination, be found to rest on the fact that the transaction in question was merely colorable and an attempt to •obtain speculative insurance. Eckel v. Renner, 41 Ohio St. 232. As we find policy number 592, 236, sued on in this case, was a policy issued in good faith in the lifetime of Thomas J. Gainor; he and said Mary M. Gainor for a good and valuable consideration, on November 16, 1906, sold, assigned and transferred absolutely said policy to the said the Coshocton Glass Company, and at the time of the death of said Thomas J. Gainor neither he nor said Mary M. Gainor had any interest, legal or equitable, in said policy. And further, at the time of said Thomas J. Gainor’s death, said plaintiff company was, and still is, the absolute owner of said policy and the proceeds thereof,, and entitled to recover the same.

It is, therefore, ordered, adjudged and decreed that said plaintiff recover the amount of said policy and interest as prayed for in said petition; and it is further ordered that the costs of this action be paid out of said proceeds arising on said policy; and the alleged claims of said Mary M. Gainor to said policy or its proceeds, are adjudged to be invalid, null and void.

Motion for a new trial is overruled; exceptions; twenty days for finding of fact and statutory time for bill of exceptions.

Taggart and Donahue, JJ., concur.