text:
    RAILWAYS —NEGLIGENCE —RELEASE FROM LIABILITY FOR. INJURY.
    [Circuit Court of Lucas County.]
    The Lake Shore & Michigan Southern Railroad Company v. Frederick Ehlert.
    Decided, June 20, 1903.

      Railway Company Negligent — In Leaving Locomotive in Incompetent Hands — Which Eliminates the Fellow-Servant Question — Release from Liability for Injury — Should be Based Upon a Fair Understanding.

    1. Where a locomotive was left in charge of one whose knowledge of its workings was uncertain, and no effort seems to have been made by the company to ascertain directly what his knowledge was of the action of s-team and the operation of the engine, and an accident resulted which was due to his lack of such knowledge, the company will be held to have been negligent, and the fellow-servant question to be eliminated.
    2. A release from liability for injuries is not binding, where it does not appear that the person signing the release understood its nature and effect.
    Haynes, J.; Parker, J., and Hull, J., concur.
   In this case a petition in error was filed to reverse the judgment of the court of common pleas which the defendant in error, the plaintiff below, recovered against the railway company for alleged injuries sustained by him through the negligence of the servants of the company and of. the company. Ehlert had been employed by the railway company for several years; he was engaged at a certain co'al chute at Air Line Junction. A certain engine had arrived in the yard and been taken to a place near the water tank and was there left in the possession of a fireman, acting in the capacity of a hostler, by the name of Toner, who ran the engine up to the coal chute to a certain, number or to a platform, and the cflrnte was then lowered for the purpose of filling the tender with eo'al. After he had placed the engine at the platform, notice was given to him to back up the engine, that the chute did not feed; thereupon he reversed his engine, as he says, and loosened the brake, let go the air brake, and immediately the engine- started back. Ehlert, who was on this chute, seeing the engine starting back suddenly, as he says, thought he would be liable to be hurt or crushed; thereupon he dropped down between the coal chutes and the locomotive and received injuries, as he claims by reason of the negligence alleged.

Now two questions 'are presented, it seems to- us, in the case: Whether this man Toner, engineer -or hostler, was a competent person or not, and if not, whether the company had taken reasonable steps before allowing him to operate this engine, to ascertain whether he was or was not a -competent person; and, second, whether or not -a certain paper writing, which was signed by Ehlert, purporting to be a release of all claims against the company was binding upon him, or whether by reason of the facts which he states in his petition, the paper was mot binding.

Now Toner had been in the employ of the company -as a fireman for some time, and for about a year h'a-d been running -an engine with an engineer; amid it is claimed that he had, from time to time, exercised the duties of engineer in operating a locomotive, and had become familiar with the methods of operating locomotives, and that he was, at' the time he went upon this engine and took it up to the coal chutes, a competent person for that purpose, and -the defendant -offered the testimony of some of the persons with whom he has operated 'as engineer and some persons in -charge of the shops, in regard to his qualifications as an engineer, or as a hostler, for the purpose o-f managing a locomotive under the circumstances under which it was placed at the time of this -accident.

The jury found he was not a competent person, -and it is claimed that was against the weight of the evidence. Now we have carefully read the testimony and examined it, and we are -of the opinion that the jury was justified in coming t-o the conclusion that they did. It appears that this young man, from .his own examination— his answers to the questions put to him when he was upon the witness stand- — -did not have that knowledge of steam and its effects upon the steam chest that would make him a competent person to rum and nse an engine under the circumstances he was using this engine. It seems that when he reversed the engine and opened the air brake, there was some steam in the steam chest, sufficient to send .the locomotive back and move it, according to the testimony of some of. the witnesses, quite rapidly. It appears that' it is the custom, and it seems to be a proper custom, when am engine is stopped, for the stop cocks to be opened, so that the steam in the steam chest will pass out and off; that is, if they are left closed, so much steam as happens to be in the steam chest at the time the locomotive is stopped remains there; and its expansive force remains and may remain for some time, according to circumstances; and it seems to us from the testimony that he was not familiar with this fact, certainly not as familiar with this fact as he ought to have been to be left in charge of a locomotive, placed in the position he was placed, where, upon his handling would depend the safety of others. Nor do we think that the company had exercised sufficient care in ascertaining as to the qualifications of this man to handle this locomotive before pemnitt'imig him to do so. It does not seem that any steps had ever been taken directly to ascertain wh'at he did know in regard to the locomotive in order to operate it, or the effects of steam in the steam chest, if left there under the circumstances which he left it at the time. And we think the company was derelict in its duty in allowing this man to take possession and use this engine without further knowledge of his qualifications.

We therefore say that we are of the opinion that we may not disturb the verdict of the jury in respect to -these questions. We are inclined to the opinion their conclusions are correct.

Now after his injury, the party signed a release; no question but that if is a release in form. It appears that he went down there to go to work. He says he went and the foreman told him that before -he went to work, he must go into the office and see the person who had charge there. At any rate, he went'down and did go to the office. He found there the claim agent and the foreman, and perhaps another party; and he was asked to give a statement in regard to the manner in which the injury occurred. He was asked certain questions and he answered -them. We think there is no doubt about that, although he, in his testimony, is inclined to deny that he did. Although the plaintiff admits that the statement was signed by Mm, it was not offered in evidence; it was not among tbe papers in the case.

At the same time, another paper was shown t'o.him, which is a release, amid it was read to him. We think there is no doubt that it was read to him. The testimony of the claim agent, Brown, 'and of the foreman, also the testimony of another party, Shambo, indicates that it was read to him; Curtis and Brown did not seem to see Shambo there, but he testifies as to what took place there. And after it' was read it was signed by plaintiff 'at the request of the claim agent. He also signed a receipt for one dollar, which was laid down on the table, and which it seems he took away. At first he said he was going without the dollar, but they told him to take if.

Now he claims he did not understand the purport of that paper, its nature and its character; and that he did not understand that he was releasing the company of all claims he might have against it — of his right to maintain an action. As to the character of some of the statements in the nature of admissions, we think he, of course, understood it. He could talk English -pretty well, and it was in proof that he was an ordinarily intelligent man, and could understand enough about the facts to understand these matters.

The real point in our minds is whether he understood the nature of the term “release,” and that he was releasing all claim or any rights he might have against the company. And we are inclined to the opinion that the jury were justified in finding that he did not know that. We have read the testimony of Brown and Curtis, the testimony of Shambo;, as well as the t'estimonj of Ehlert himself, in regard to what took place at that time, what transpired there. While they read the release to him, wM-eh he signed, and perhaps the receipt, the nature of that which was transpiring, it seems to us, was not sufficiently explained to him. There seems to be a total want of any conversation, or any agreement between Cur7 tis, Brown and Ehlert, that he was negotiating with them; that they were negotiating with him for a release of all claims he had against the company for the injuries which he had received, or that he knew without''any explanation on their part’ what he was negotiating for. He says that they sat at a table and took down his statement and had him sign a paper,. and laid down a dollar. He says he asked them what the dollar was for; they said for him to take it out and spend it.

E. D. Pofter, for plaintiff in error.

D. H. Gommager, Ashion Goldham and Iiarvey Scribner, for defendant in error.

We do not think that is a proper manner in which to settle a ease of that kind, a ease of that importance in regard to any injury. The parties -with whom such dealings are had should be negotiated with, and the facts explained fully and perfectly — that they are buying him off, that they are purchasing from him a release from all damages or all claims he anight have, or be supposed to have4 -against them for the injuries that he has received at the time he was hurt.

For these reasons we are inclined to the opinion that the verdict of the jury is correct and 'ought to be sustained. We think that the negligence, if negligence there was, is attributable to the company; so the question of fellow-servant does not arise in the case; so we understand the charge of the court to the jury to be. The charge seems to be very full, and stated the law clearly to the jury; so they seem to have understood the issues fully.

For the reasons stated, the judgment of the court of common pleas will be affirmed without any penalty.


source: Caselaw Access Project

license: Public Domain

text:
    EFFECT OF DISMISSAL OF ONE OF TWO DEFENDANTS BEFORE A JUSTICE OF THE PEACE.
    [Circuit Court of Cuyahoga County.]
    Mrs. Jane Mulrooney v. Charles Lederer & Son.
    Decided, December 13, 1895.

      Appeal — Judgment Not Vacated By, When — Action Before Justice of the Peace Against More than One Defendant.

    Where two persons are sued before a justice of the peace on a bill for merchandise, and one of them is dismissed, and judgment given against the other, there is not such a necessary connection between them that the one thus dismissed can be brought back into the case on appeal to the common pleas court.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
   This is a case in which suit was brought' by Lederer & Son before a justice of the peace of Cleveland township in this county against Jane Mulrooney and George A. Groot. Summons was issued for George A. Groot, at one time attorney of the other party defendant, and the case continued to a later date. The parties finally appeared before the justice on the 18th day of November, 1893. The case was then dismissed as to Jane Mulrooney and proceeded to trial. Judgment was rendered against George A. Groot. Groot appealed his case and gave bond, and brought the ease into the court of common pleas. A petition was then filed by Lederer & Son in that court against both Mulrooney and Groot. Thereupon Mrs. Mulrooney filed a motion to have the case dismissed as to Her on the ground that she was not properly in court, because the case had been dismissed as t'o her before the justice. That motion was overruled aud Mrs. Mulrooney filed an answer denying everything contained in the petition.

When the case came to trial she objected to any evidence being introduced as against her; but the court overruled her objection. The case was tried without a jury. Evidence was taken and the result was that in the court of common pleas judgment was had against Mrs. Mulrooney and in favor of Groot. Mrs. Mulrooney made a motion for a new trial, which was overruled. Exception was taken, and she filed her petition in error in this court t'o reverse the judgment of the court of common pleas.

The question really presented is whether she was a proper party in the court of common pleas.

As has already been said, the case was dismissed as against her by the justice of the peace; the record does not show upon what ground it was dismissed, but that would seem to be immaterial. It was dismissed as against her. She had no reason to complain of the action of the justice, and nothing to appeal from. She was entirely satisfied. Whether Lederer & Son were satisfied or not, they did not appeal the case. They acquiesced in that judgment. But Groot, against whom judgment was entered, being dissatisfied with the judgment, appealed and gave bond. Did that bring Mrs. Mulrooney into the court of common pleas so that she was bound to answer there? It would seem a strange thing that she, being entirely content with the action of the justice 'and the plaintiffs being so well content with that action that they did not' care to appeal, that she should he brought into the court of common pleas because the other defendant was dissatisfied and appealed.

E. L. Hessemnueller, for plaintiff in error.

Riley & McQuigg, for defendants in error.

The suit was upon a bill of particulars for goods and merchandise furnished originally to the defendant, Mulrooney; the bill was made to read that it was furnished to the defendants. We are not' without what seems to be applicable as authority in this case in the state of Ohio. In 20 Ohio Reports, page 503, Glass v. Great-house, the syllabus reads as follows:

“In a case in chancery where there are two .defendants, and the bill is dismissed as to one and a decree against the other, an appeal by the latter does not vacate the decree as to the former; more especially where there is not that necessary connection between the defendants but that the rights of one can be determined without affecting the rights of the other.”

So far as appears here there is no such connection between these two defendants, that the rights of one can not be determined without the presence of the other. Indeed both courts that tried the case found their rights to be distinct and separate, although one court found against one defendant and the other court' against the other. In the opinion in the case cited on page 513, this language is used:

“But in the case now before us there was a decree against but one of the two defendants, and he appealed. From what? Unquestionably from the decree against himself, not from the decree in favor of his co-defendant. There is no necessary connection between these defendants, so that' the right one can not be determined without deciding upon the rights of the other. We are of opinion that Thomas Greathouse is not before this court.”

It seems to us that that reason and that principle 'apply in this case. Groot appeals from what? Not from the judgment in favor of Mrs. Mulrooney, but simply from the judgment against himself. And that being the only thing that was appealed from what’ should have been tried in the court of common pleas was whether Groot was indebted to Lederer & Son.

Entertaining these views we reverse the action of the court of common pleas, and remand the case for further proceedings.


text:
    RIGHTS UNDER. A RESCINDED CONVEYANCE MADE IN FRAUD OF CREDITORS.
    [Circuit Court of Jefferson County].
    Parkinson v. Parkinson.
    Decided, November, 1902.

      Conveyance — In Fraud of Creditor — Settlement Made With Creditor — Conveyance Rescindea by Consent of Grantee — Grantor Remains in Possession — Suit in Ejectment by Heirs of Grantee.

    A deed of conveyance was executed and delivered for the purpose of defrauding a creditor. Subsequently the grantor compromised and settled the claim of the creditor, and thereafter it was agreed between the grantor and grantee that the conveyance should be canceled and the notes representing the purchase price and the deed surrendered and destroyed. The notes were produced and destroyed, but the deed could not be found, because fraudulently abstracted by a son of the grantee. The grantor remained in possession, and he and the grantee lived for some years thereafter in the belief that the deed had been lost and destroyed, and both died in that belief. Held: That in an action in ejectment, brought against the heirs of the grantor by the heirs of the grantee, in-eluding the son who had concealed the deed, that the petition should be dismissed and the title to the land quieted in the heirs of the grantor.
    Cook, J.; Laubie, J., and Burrows, J., concur.
   John Parkinson and Joseph Parkinson were brothers; there was less than two years difference in their ages; John was a bachelor up to 1885, when he married, being then nearly fifty; he died in 1898 leaving a widow and a son fifteen years of age. Joseph was married early in life, and died in 1900, leaving a widow and six children, sons and daughters. They were both over seventy years of age when they died.

From their earliest manhood they lived on adjoining farms, which were valuable, and contained nearly three hundred acres each. In 1881 John was sued by a woman by the-name of McKinney, a widow, for breach of contract of marriage, claiming $1,500 damages. The suit was compromised and settled just a 3rear afterwards by his paying her $700. The suit was settled with the knowledge and approval of Joseph. Five days after the commencement of the action of Mrs. McKinney, John made t'o Joseph >a deed for his farm and delivered the same t'o him; the consideration named in the deed was $16,000, about the actual value of the farm, and Joseph made and delivered) to John a promissory note or notes for the consideration named in the deed. The deed was never placed on record by Joseph or any one for him. Junius Parkinson, a young lawyer, son of Joseph, and nephew of John, was the attorney who attended to the business; he lived with his father, and he died a short time after the settlement of the action for breach of promise. The evidence shows that the deed was made for the purpose of hindering, delaying and defeating Mrs. McKinney in the collection of her claim or pretended claim, and that both John and Joseph so understood it at the time the deed was executed.

Soon after the action of Mrs. McKinney against John was setr tied, John and Joseph verbally agreed that they would cancel the sale of the farm, by Joseph delivering back to John the deed and John surrendering the note or notes for the $16,000 to Joseph, the deed and note or notes to be destroyed; and thereupon, in pursuance of said agreement, John did surrender the note or notes to Joseph and he destroyed the same. Joseph, for the purpose of carrying out his part of the agreement, looked diligently among his papers for the deed, but could not find it, and informed John he could not find it, and that it must have been in some manner destroyed. Some time after this statement to John by Joseph, possibly a year, John again cadled Joseph’s attention to the fact that he wanted the deed or that he must be assured of its destruction and seemed exercised about it. Joseph again looked for the deed and again told John that he could not find it, that Junius must have destroyed it before his death, as he had told him to do so, or that he had inadvertently destroyed it with some old papers that he had burned, and that John should not be troubled about it, as he knew it was destroyed. Joseph spoke to other parties about the deed, stating that he had a valuable paper that belonged to John and he could not find it; that John should have it and that he would give a good deal if he could find it and deliver it over to John. The fact was that John J. Parkinson, son of Joseph and one of the plaintiffs, some time after the deed was executed and before his father had searched for it, had abstracted the same from the papers of his father or from the trunk of his brother, Junius, without the father’s knowledge, and that that was the reason the same could not be found.

John and Joseph both lived and died under the full belief that the deed -had -been destroyed in accordance with the agreement, and that such destruction was sufficient to reinvest John with the complete title to the farm. As we have seen, John- married and a son was born to him after the agreement to cancel the sale, and John continued to reside upon the farm after the execution of the deed, the same as before and up to his death, paid the taxes, made ordinary improvements, Joseph never making any claim to the farm, or for any rent for the use of the same. After the death of Joseph, John J., his son, who had secretly abstracted the deed, placed the same on record, and he, with the other children of Joseph, brought this action in ejectment against the .widow of John Aseenith Parkinson, and the son, John S. Parkinson. The defendants filed an answer and cross-petition, denying that the plaintiffs had any interest in the farm, and setting forth that the conveyance was without consideration, and that the plaintiffs held the legal title to the farm in trust for the defendants, and asking that the deed be canceled and their title to the farm be quieted. To this answer and cross-petition plaintiffs replied that the deed was executed for the purpose of hindering, delaying and defeating Mrs McKinney in the collection of her claim for damages for breach of contract of marriage.

Under the pleadings and the facts as stated, what are the rights of the parties? No principle is better settled m this state than that where two or more persons are engaged in a fraudulent transaction to injure another, neither law nor equity will interfere to relieve either of those persons as against the other from the consequences of their own misconduct. The courts will leave them in precisely the condition in which they placed themselves by their fraudulent act. Therefore, under the averment of the reply of the plaintiffs and the facts of the ease, the petition of plaintiffs must necessarily be dismissed.

The defendants, the heirs of John Parkinson, claim further that under the facts of the ease they are entitled to affirmative relief and have the right to have the deed canceled and their title to the premises quieted. It is the settled principle of the law of the state that, while a conveyance made to defraud creditors is utterly void as to them, yet is good as between the parties, aed that the court's will not relieve them from the consequences of their own fraudulent act, and that 'a conveyance for the purpose of defeating a party from the collection of a claim in litigation, in case the judgment is adverse to him, is such fraudulent conveyance (Pride v. Andrew, 51 Ohio St., 405). Do the facts of this case bring it within the rule?

In a very early case (Swift v. Holdridge, 10 Ohio, 230, 231, 232), it is said by Lane, C. J.:

“An honest man will not take a fraudulent conveyance. If a man holds property fraudulently conveyed, as soon as he comes to a sense of his moral duty he will restore it t'o those to whom it belongs; he ought to give it back to him from whom he received it, that it may be applied to his debt if wanted, or to his benefit if not' necessary for this purpose. The law to discourage frauds does not compel him to restore it to the fraudulent grantor; yet no man will retain it for a moment who desires the reputation of honesty, or possesses the sense of justice.”

In the case of White v. Brocaw, 14 Ohio St., 339, 341, Ranney, J., says:

“In respect to the ground of relief stated in the bill, to which reference has been made, it is enough to say, that no principle is better settled than that a conveyance made to defraud creditors is good between the parties and no remedy is afforded the fraudulent grantor or his heirs to reclaim the property. But this rule has its foundation in the anxiety of the law to discourage frauds, and the moral obligation of the grantee to restore the property so held, is not only clear but' is fully recognized in the decided cases (Swift v. Holdridge, supra). If he does restore, the law discharges him from liability as a trustee for the creditors of his grantor, and undoubtedly any steps taken or acts done by him subsequent to the conveyance toward the discharge of his moral duty should receive the. favorable consideration, of a court of equity.”

In Pride v. Andrew, 51 Ohio St., 405, 414, Dickman, C. J., says:

“While such a -conveyance with intent to .defraud creditors is, as -against creditors, thus made absolutely void, the principle is well settled that such a conveyance is good between the parties, and no remedy is afforded the fraudulent grantor or his heirs to reclaim the property. While the fraudulent grantee, from a sense of his moral duty, ought to give back the property to him from whom he received it, yet the law, to discourage frauds, will not compel him to restore it to the fraudulent grantor.”

See also Langsdale v. Woollen, 99 Ind., 575, 582; Parker v. Tiffany, 52 Ill., 286; Matthews v. Buck, 43 Me., 265; Fargo v. Ladd, 6 Wis., 106.

If Joseph Parkinson had retransferred the property to his brother by a deed, however defective, there could be no doubt but what a court of equity would uphold it. How, then, can it be claimed that what' the brothers did, as shown by the facts of this case, should not be equally as effective. The action against John was compromised and settled with the knowledge of Joseph, and no doubt with his active approval. Soon afterwards the agreement was made to rescind the contract by which the property was conveyed and the note or notes were delivered up and destroyed which were given as the consideration for the farm and which would have been valid in the hands of an innocent purchaser for value. Joseph did his utmost to deliver back the deed to his brother, as he had agreed to do, and was only thwarted in his just intention by the almost criminal fraud of one of the plaintiffs to this action. Both died in the full belief that the deed was destroyed and that that was equivalent to a redelivery of it to John to be destroyed. It is a rule of equity that “that is done which ought to have been dáñe,” and it is certainly emphasized when the facts show not only what ought to have been done but what in good faith was supposed to have been done; therefore, in legal contemplation, the deed was redelivered by Joseph to John and by him destroyed. There could be no taking possession of the farm by John, as Joseph was never in possession and had no possession, legal or otherwise, to deliver.

The object and purpose of the cross-petition is not to require the heirs of Joseph to reconvey the farm, but it is to make effective the agreement made between the two brothers and to estop the plaintiffs from claiming under a deed of conveyance to which they are not entitled; to place t'he plaintiffs in such position as they would have been if the deed had been actually returned by their father to his brother and by -him destroyed, or had been destroyed by Joseph at his brother’s request, for the purpose of reinvesting the title to the farm in his brother, as he fully thought he had done and which, as said in White v. Brocaw, supra, was his moral obligation to do. In Washburn on Real Property, Section 1907, under the heading of “Destruction and Redelivery of Deeds,” the author says:

“It sometimes happens that parties to an executed conveyance wish, to place themselves m statu quo, and to effect' this the deed is returned to the grantor and destroyed. Although the redelivery of the deed was ineffectual to pass the title back, the transaction contains all the elements of an estoppel, and the grantee will not be allowed to claim under the deed which was destroyed with his consent with the intent to deprive 'him of his estate.”

The doctrine is more fully discussed by the same author in Section 2182 of his work. In Dukes v. Spangler, 35 Ohio St., 119, the principle enunciated by Mr. Washburn is recognized as applicable in certain cases, and on page 126, Okey, J., says:

“The general rule undoubtedly is that when the instrument conveying an estate has taken effect, its destruction by the parties will be ineffectual, even if they intended thereby to revest the estate in the grantor. * * * But it h'as been held, in a large number of cases, that a grantee who has thus voluntarily consented to the destruction of his deed, shall not have affirmative relief under it. * * * The ground of these decisions, at least the only tenable ground, is not that the estate revests, but that the grantee is estopped (Farrar v. Farrar, 4 N. H., 191; Trull v. Skinner, 17 Pick., 213). Under some circumstances, no doubt, we would feel called upon to give effect to such estoppel.”

In this case the plaintiffs are -asking for affirmative relief, they are seeking to 'obtain possession of the premises under the deed which their ancestor had surrendered to be destroyed, or done that which was equivalent to its surrender -and destruction for the purpose of canceling it and reinvesting the title t'o the property in its rightful owner. This is certainly one of the cases where the circumstances demand that the general rule requiring an actual re-conveyance by deed should! not apply, and that' the doctrine of, estoppel should be given effect. In the case of Langsdale v. Woollen, 99 Ind., 575, pages 582 and 583, it is held:

“An agreement between grantor and grantee after deed made as to the disposition of the land purges the original fraud and is valid though not in writing.”

From principle and authority, under the circumstances of this case, we think the plaintiffs are estopped from claiming any interest in the premises under the deed of John Parkinson to Joseph, his brother. No creditors are complaining; there are none to complain. It would be shocking to the conscience of the court to be required to -hold that the laudable acts of these two brothers, by which, in good faith, they supposed they had fully reinvested the title to the land in John, are of no avail.

It is therefore ordered 'and decreed that the petition of the plaintiffs be dismissed; that the deed from John Parkinson to Joseph Parkinson be canceled; that the title of defendants in the premises be quieted, and that plaintiffs pay the costs of this action.


text:
    ROADS AND THE POWER OF COUNTY COMMISSIONERS OVER THEM.
    James E. Law, L. O. Brown and Irving Kennedy, Commissioners of Medina County v. Peter Leighty and William Rebman.
    [Circuit Court of Medina County. ]
    Decided, October 15, 1903.

      Roads — Public, State, County and Township — Restricted Powers of County Commissioners — Sections 843 and 863.

    County commissioners are restricted to the exercise of powers expressly conferred upon them by statute, and they have no authority to bring an action to restrain persons from obstructing township roads under Sections 845 and 863, Revised Statutes, the former authorizing them to bring actions to prevent injury to “public, state and county roads,” and the latter to bring suits in certain cases for injuries to “bridges, roads and buildings.”

      Winch, J.; Hale, J., and Marvin, J., concur.
    Error to the Court of Common Pleas of Medina County.
   Plaintiffs in error, as Commissioners of Medina County, brought their action against the defendants in error to restrain the latter from obstructing and closing up a road in Guilford township in said county. The petition describes the road as a “public highway, public road and township road,” and states that it was dedicated by one John Long in 1836 and presented by him t'o said Guilford township for public use, and in 1837 was accepted by the trustees of said township as a “public road, public highway and township road.” It thus sufficiently 'appears from the petition that the road is a township road, as distinguished from a state road and a county road, if there is any such distinction.

The defendants filed a general demurrer to the petition raising the question whether the commissioners could maintain an action to enjoin the obstruction of such a road as is described in the petition. The demurrer was sustained by the court below, and plaintiffs not desiring to plead further, judgment was entered ‘against them dismissing their petition.

To reverse this judgment petition in error has been filed in this court, so that the only question in the case is whether or not, under the petition, any right of action exists in the county commissioners to enjoin obstructions to township roads.

A township road, while it is for the use of ail the people and not for the use of the people of the township alone, like a city road, which is for the use of all the people and not for the use of the inhabitants of the city alone, differs from a state road and from a county road, in many important respects, as does 'also a city street. No one would contend for -a moment that the county commissioners have jurisdiction over city streets. The control of city streets is by statute vested in the municipal authorities. . An examination of the statutes shows that the control of state and county roads is vested in the county commissioners and the control of township roads is vested in the township trustees. State and county roads are established, paid for, improved, altered and vacated by the county commissioners. See 'Chapter One (State Roads), Title VII, Division II, Part Second, Revised Statutes, and Chapter Two (County Roads), same title. Township roads are established, paid for, improved, .altered and vacated by the township trustees. Chapter III, same title.

The county commissioners have power to levy a tax to provide a fund for the improvement of state and county roads (Sections 2822-1, 2822-2, Revised Statutes). Township trustees have power to levy 'a tax to provide a fund for the improvement of township roads (Section 4686-21, Revised Statutes). The general statutes on the subject of roads above referred to seem to confer upon the county commissioners no -authority to maintain this action, and the Supreme Court has held:

“That boards of county commissioners- in Ohio- have such powers and such only as are conferred by statute, and may maintain such actions, and such only as are by statute authorized, is too well established to admit of controversy.” (Commissioners of Mahoning County v. Railway Co., 45 O. S., 401).

But' we are referred to Sections 845 and; 863, Revised Statutes, as specifically 'authorizing the bringing of this action. The latter section (863) does not apply, for it only authorizes the county commissioners to bring suits in certain cases for injuries to bridges, roads and buildings, and to recover money judgments therefor. It does not authorize the commissioners to institute equitable -actions to prevent such injuries.

Section 845, so far 'as it is material to the issues in this case, reads as follows:

“The board of commissioners shall be capable of suing and being sued, pleading -and being impleaded, in any court of judicature, and of bringing, maintaining and defending cdl suits, either in law or in equity, involving an injury to any public state or county road, bridge or ditch, drain or watercourse established by such board in their county, and for the prevention of injury to the same; and any such board of county commissioners shall be liable in their official capacity for any .damages received by reason of the negligence or carelessness of said commissioners in keeping any such road or bridge in proper repair; and to ask, demand and receive, by suit or otherwise, any real estate or interest therein, whether the same is legal -or equitable, belonging to their county, or any sum or sums of money -or other property due to such county.”

Licey & Licey, for plaintiffs in error.

Lee Elliott, for defendants in error.

The words italicized were added by amendment in 1894; the remainder of the statute is an old law.

It is claimed that' the words “public state or county road,” were intended, to cover township roads; that there should be a comma after the word public, which would make three kinds of ro'ads covered by the statute, public roads, state roads and county roads, and that such, was the purpose of the Legislature in amending the law; that “public roads” include township roads. The same argument would make “public roads” include city streets, and we are unable to come to any such conclusion. The real intention of the Legislature in amending the law was to give a right of action against the commissioners for injuries sustained by reason of their negligence in keeping roads and bridges under their control in good repair, and the amendment authorizes suits both by and against the commissioners involving roads and bridges “established by such board in their county

It would not be urged that the commissioners would be liable to respond in damages should a person be injured by- reason of the negligent construction -or insufficient repair -of a township read which must be kept in repair by -the township authorities. Conversely, they can maintain no action for obstruction or damage to the road.

There was no error in sustaining the demurrer and -the judgment is affirmed.


text:
    SIDEWALKS LAID BY CONSENT AND BY ORDINANCE AT DIFFERENT LEVELS.
    [Circuit Court of Cuyahoga County.]
    Peter F. McGuire v. The Village of East Cleveland and Edward Leslie, Street Commissioner of Said Village.
    Decided, July 24, 1903.

      Sidewalk — Grade Established by Ordinance — By, Consent — Reasonable ■Grade — Ingress and Egress from Abutting Lot — Easement in Street —Injunction.

    Along a street having a grade regularly established by ordinance, lot owners were tacitly permitted to lay a sidewalk considerably higher than the established grade, in order that they might preserve their shade trees and adapt the walk to their lawns and other permanent improvements. McG., a lot owner in this square, chose at a later date, however, to grade his lot down to conform with the established grade, and laid a sidewalk on that grade, which was a foot lower than the walk in front of the lots on either side, though the walks on one-half or more of the length of the square on the same side of the street had been laid in accordance with the established grade. The village ordered this walk taken up and relaid on the grade of the walk as laid on either side of the lot in question, and McG. sued to enjoin such action. Held:

    1. The plaintiff having laid his walk' as the ordinance required, the village can not remedy the resulting inconvenient and dangerous condition by interfering with this walk which corresponds to the established grade, but rather should require those on either side to lower their walks to the established grade. Akron v. Chamberlain, 34 O. S., 328, distinguished.
    2. Neither can the village be heard at this time to question whether the established grade is a reasonable and proper, grade, but is bound by its acts on that subject.
    3. The plaintiff having graded his lot to conform with the established grade of the street, the village can not now, by a change of grade, interfere with his ingress and egress, or with his easement in the street, which “is as much property as the land itself.” | !
    Marvin, J.; Laubie, J., and Winch, J., concur.
    Heard on appeal.
   The defendant', the Village of East 'Cleveland, is a municipal corporation of t'he state of Ohio; the other defendant is the officer of said village, having especial charge of its streets. The plaintiff is a citizen of said municipality.

One of the public highways of said municipality is Windemere street, extending southwardly from Euclid avenue, an east and west street, to another east 'and west street known as Terrace road.

The plaintiff owns two lots fronting on the west side of Windemere street. One of these lots has a frontage of 100 feet, and the other of 60 feet, on said last-named street. The grade of said street was established by ordinance prior to the time when the matter discussed in this opinion occurred, and the street has been graded, paved and curbed in accordance with said established grade.

Ordinance No. 107 of s'aid village was passed on the 7th day of September, 1900, and is in these words:

“Be it ordained by the Council'of the Village of East Cleveland that all sidewalks hereafter constructed-on any public street, or ■ highway within the Village of East Cleveland, shall be so laid that the top surface shall at all point's coincide with a line described as follows:
“ ‘Beginning at the curb line, within the established curb grade as determined by the Council, thence extending to the street line, at right angles to the curb line, with a rise of three-eighths of an inch to the foot.’ ”

Prior to 1903, property owners on the west side of Windemere street for one-half the distance or more from Terrace road to Euclid avenue had laid sidewalks in conformity with this ordinance, and in the fall of 1902, the plaintiff laid a sidewalk in front' of his 100-foot lot in accordance with this ordinance, and nothing further need be said about tins lot.

The grading of said Windemere street in accordance with the grade established by order of the council, was done in the summer of 1901. This grading northerly from a point about one-half the distance from Terrace road to Euclid avenue, necessitated a cut of from three or four inches to about twelve inches.

Prior to said grading and paving, many lots along this northerly half of the west side of Windemere street had been improved by the erection of good dwelling houses, the grading of lawns, the setting out of fine shade trees, and the laying of sidewalks — some of them ten or twelve inches higher than the elevation therefor provided in/ said ordinance No. 107, and nothing was done by the village authorities toward having any change made in these sidewalks; but, as averred in the answer filed by the village herein—

“The same was left in its former condition for the purpose of preserving the shade trees growing therein, thereby adding to the beauty of the street, the value of the property, and the enjoyment of the citizens of East Cleveland, particularly of the residents living on Windemere street.”

The 60-foot lot of this plaintiff is on this part of the street, where the sidewalks are much higher than is provided by said Ordinance No. 107. Up to the month of April, 1903, this lot of plaintiff had no sidewalk in front of it; mor had the surface along where the sidewalk should be been cut’ down for the purpose of laying such sidewalk, but such surface was about on a level with the sidewalks in front of the lots abutting upon this lot both on the north and south sides.

At the time last mentioned the plaintiff graded his said lot and took away the earth along the front where the sidewalk should be, and laid a good sidewalk of flagging at the grade fixed by Ordinance 107. This is about ten inches lower than the adjoining sidewalk both on the north and to the south, thereby making it inconvenient and, perhaps, dangerous to walls along said west side of Windemere street on the sidewalk. The village has put up some barrier or guard at each end of the plaintiff’s walk, and' has directed the defendant, Leslie, as street’ commissioner, to take up said sidewalk and re-lay the same at the same grade as the walk immediately on the north and south, and this will be done unless the defendants shall be enjoined. The plaintiff prays for such injunction. •

On the 11th of August’, 1902, a resolution was introduced in the council of said village, and was voted for by a majority of the members of said council, which reads in part:

“Resolved, That a sidewalk on the westerly side of Windemere street, between Euclid avenue and Terrace road be laid with stone or cement to the full width of five feet, and in conformity with the grade line of the sidewalk heretofore laid on said westerly side of Windemere street.” * * *

This resolution was not read on three different days in the council, nor was the rule requiring such reading dispensed with by a vote of three-fourths of the members elected to such council, as is required by Revised Statutes, Section 1694, for all by-laws, resolutions and ordinances of a general mature.

That this was' a resolution of a general nature can hardly be doubted, and, indeed, is substantially admitted by defendant's counsel. See Thatcher v. City of Toledo et al, 19 C. C. R., 311; Campbell v. Cincinnati et al, 49 O. S., 463.

This resolution not having been legally adopted, can not affect the decision of the case under consideration.

On the part of the defendant it is urged, however, that the defendant village, under Revised Statutes, Section 2640, is, through its council, required to keep the sidewalks in repair amd free from nuisance, and because of the character of the sidewalk along this part of Windemere street, it is in a dangerous condition since the laying of plaintiff’s walk, such council may take such means as to it shall deem best to abate the nuisance, and the case of Wilhelm v. Defiance, 58 O. S., 56, is cited in support of this contention. The syllabus in that case reads:

“A municipal corporation, having in the proper mode provided for the construction of a sidewalk amid notified the owner of abutting land, may require' of him the construction of a sufficient walk in front of his premises, and upon his default may itself construct such walk and assess the cost thereof upon his land,” etc.

Nothing in the case tends to establish that the municipal authorities may remove a sidewalk laid in accordance with the provisions of law and the ordinances of the municipality, for the purpose of relieving those whose walks are not so laid, from the obligation of properly laying their walks.

The situation here is this: The plaintiff constructed his walk substantially as the village ordinance required. His neighbors had been tacitly permitted to construct their walks in violation of the ordinance. The result is, that the walk, as a whole, is in a dangerous, or, in any event, a very bad condition, The village proposes to remedy this condition by interfering with the walk laid in pursuance of law, rather than by interfering with the walks of those maintained in violation of law — a most extraordinary way of righting a wrong! It would seem to the ordinary man that the proper thing for the village to do would be to make or cause to be made such alterations, in the sidewalks in front of the premises of the neighbors of the plaintiff as to relieve the situation and make the •sidewalk as a whole safe and free from nuisance.

It is urged, however, that the plaintiff is not entitled to relief by way of injunction, because 'his hands are not clean; that he, for the purpose of laying his sidewalk, excavated within the street line in violation of an ordinance of the village. This ordinance, which is No. 117, prohibits the excavation and removal of earth upon the street without a permit from the municipal authorities. Plaintiff removed so -much earth along the line of his proposed sidewalk as was necessary for the laying of such walk in accordance with the provisions of Ordinance No. 107.

It is hardly to be supposed that said ordinance No. 117 was intended to prohibit' such removal. Doubtless, if he had removed .more than was reasonably necessary for this purpose, he would have violated the spirit of this ordinance, but to do only what was necessary to comply with Ordinance No. 107 should mot be held to be a violation of No. 117, unless a fair construction of No. 117 necessitates such holding, which does not seem to be the case here.

Much was said on the hearing, and evidence was offered upon the •question of what is a reasonable and proper grade for this sidewalk; but, so far as the village is concerned, this is not an open question. It is bound by its own acts upon this subject. It fixed the .grade of the street by ordinance, and fixed the relation which the surface of the sidewalk should sustain to the surface of the paved portion of the street by ordinance, and it can not question that the .grade so fixed by it is reasonable amd proper.

A further contention on the part of the plaintiff is, that as the property owners for a considerable distance on either side of plaintiff’s lot had been permitted to make improvements and lay their walks at the -higher -grade, a special grade was thus established for this portion of Windemere street. In support of this, the case of Akron v. The Chamberlain Co., 34 O. S., 328, is cited. The language of the court, relied upon here, is found in the opinion of •Judge MeIlvaine, on page 336, and is in these words: of an ordinance or other legislative action; bnt it may be shown, by the nature of the improvement on the surface of the street, under the direction or sanction of the proper authorities whether ion accordance with an ordained grade line or not,” etc.

“The establishment of a grade whereby lot owners are justified in assuming that no change will be made in the grade of a street, .and may, therefore, improve their lots with reference to its present condition, * * * does not necessarily require the passage

J. F.JlQrriclc, for plaintiff.

If red Clum, for defendant.

The question under consideration by Judge Mcllvaine was whether a municipal corporation would be bound by its acts showing that it recognized a certain grade of a street, where no grade had been established by ordinance, and the fair construction of the language quoted is only to the effect that it would be so bound, and not that it would not be bound by a grade established by ordinance, because it had permit-fed such use of the street as might indicate some other grade. Applied to the ease under consideration, if the court should hold that plaintiff was bound, in putting down his sidewalk, to take notice of the grade at which his neighbors had put' theirs down, he would have been bound to ignore an existing ordinance of -the village, which surely could not be required of him.

It is urged further that if plaintiff is entitled to any remedy he must seek it in damages, and not by way of injunction.

The -act which the village 'and the street' commissioner propose to do will result in permanent injury to the lot of the plaintiff, which has been graded to conform to the sidewalk as it is now laid. It will intefere with the ingress t'o and egress from said lot; it will interfere with that easement which the plaintiff has in that portion of the street, and that' easement our Supreme Court has said “is as much property as the land itself.”

If the sidewalk is raised, as the defendants propose to raise it, it will constitute a permanent obstruction to plaintiff’s access to bis lot from the street. This is surely a proper subject of injunction.

Upon a full consideration of tbe case, the result reached is that the plaintiff is entitled to an injunction restraining the defendants, and each of them, from making any change in -the sidewalk in front of plaintiff’s 60-foot let, and a decree will be entered accordingly.


text:
    WAIVER. OF PROOFS OF LOSS UNDER A POLICY OF FIRE INSURANCE.
    [Circuit Court of Wood County.]
    Ida Stacy v. The Norwich Union Fire Insurance Society.
    Decided, April 25, 1903.

      Fire Insurance — Authority of Local Agent — Statement by, that the Company Denied all Liability — Held to be a Waiver of Proofs of Loss — The Law of Agency — Testimony as to Waiver Should go to the Jury.

    1. The general principle that when a matter is entrusted to an agent he will be regarded as having authority, in the absence of notice to the contrary, to carry the business to its completion, applies to the agent of a fire insurance company, where policies signed in blank aré entrusted to him to be filled out and delivered and the premiums collected, and the policy holder has no notice or knowledge of the location or existence of any other agent of the company.
    2. Hence, where such an agent makes an investigation of a fire, and finds the loss is total and there are no suspicious circumstances, and some time thereafter informs the policy holder that he fears trouble as the company denies all liability, and the policy holder, influenced by this statement, submits no formal notice of the fire or proofs of loss, the company is estopped from claiming that the agent was without authority to act after the occurrence of the fire, or from denying that the statement of the agent was a waiver of written notice and proofs of loss.
    3. And further, under the general principles of agency, if the company denied liability, the agent had authority to communicate that fact to the policy holder.
    4. It is error, therefore, to direct a verdict under such circumstances in favor of the company, on the grouund that no formal notice or proofs of loss were submitted; but the evidence as to whether the company had waived these requirements should be submitted to the jury.
    Hull, J. (orally); Parker, J., and Haynes, J., concur.
    Error of Court of Common Pleas of Wood County, Ohio.
   The parties in this ease stand in this court the same as in the court below, the plaintiff in error having been t'he plaintiff below. The action was brought on a fire insurance policy to recover five hundred and seventy-two dollars and thirty cents ($572.30) for •the loss by fire of a building which was insured by the defendant in error.

The court below directed a verdict in favor of the defendant upon the ground that no written notice of the loss had been given to to the company as required by the policy, and no formal written proofs of loss made to the company as required, and that there was no' evidence tending to show that the company had waived these requirements, and at the close of the plaintiffs testimony, a verdict was directed in favor of the defendant, and judgment entered upon it'. Proceedings in error were commenced in this court to reverse that judgment.

The policy contains a condition requiring immediate written notice of the loss to be given to the company and formal written proofs of loss to be made to the company within sixty days after the date of the loss. It is not claimed that any written notice was given to the company or that any written proofs of loss were made; the case turns on the question as to whether these requirements were waived by the company.

It is claimed that the company through its agent denied any liability on the policy; denied generally any liability upon the policy after the fire, not basing its denial and refusal to pay upon the failure to give notice and present written proofs of loss. The law is well settled that if this were true, that such a denial of liability were made, that would amount to a waiver of the requirement of written notice or proof of loss¿ if the denial of liability was made within such time as the proof of loss was required to be made; the authorities are all one way on that question. It would be idle to make proof of loss after the company had notified the assured that it would not pay; and it is claimed here that the company did deny liability and that therefore this requirement was waived. The plaintiff claims that this denial of liability was communicated.to him by E. A. Barton, the agent of the company in Bowling Green, this county, he being the agent of the company at the time and representing it here. The head office -of the company and its headquarters are in Norwich, England. The evidence of the plaintiff fends to show that shortly after the fire, Barton told him that the company denied 'ail liability on the policy, and, in substance, that it would not pay. This, Barton, who was called by the plaintiff, denied, but the evidence of the' plaintiff is in the record.

• It is contended by the defendant in error that a local agent such as Barton was has no authority to make such a declaration on behalf of the company; that his authority is limited to the issuing of a policy, the insuring of the property, collecting the premiums and giving notice of his acts in that respect to the company, but that after a loss occurs his authority is terminated and ceases, and that the matters that follow then are in the hands of, and under the authority of, other persons and other agents, 'and therefore it is claimed that a denial of liability made by the agent would not bind the company, and would not amount tcf 'a waiver of notice and proofs of loss.

The circumstances .of the insurance and the fire, and what occurred as far 'as the contract is concerned, may be briefly stated. The insured’ acted entirely through her husband as her agent; he made application to Mr. Barton to .insure the property, aaxd according to his testimony, Mr. Bárton assured him he would endeavor to place the property in some of the companies he was representing, and stated to him that he represented the Norwich Union Company and others, and thought he could place -it with the Norwich company, and Stacy requested him to do so if he could. After that, this policy was written by Mr. Barton. He had in his possession policies signed by the proper officers of the company and it was only necessary for him to fill them in .and countersign them. The policy was not delivered to Stacy. Stacy testified he was not certain what company Barton would insure the property in, 'but when the policy was written, it was to be turned over to him. The policy was written under date of February 9, 1901, and while it was still in the office of Mr. Barton, not having been .delivered, on the evening of February 15, 1901, he (Barton) received 'a -telegram from an authorized agent of the company at New York, signed “The Norwich Union Fire Insurance Society,” to cancel this policy, the company reserving the right to cancel any policy issued by its agent upon his notifying them of the risk he has taken, though he has authority to issue the policy, and the company would be bound by it until it was in fact canceled, and under the statute of this state it would continue in force five days after notice of cancellation was given to the insured.

Barton received this notice about five o’clock in the afternoon of February 15, some six days after the policy was written; he gave no cuotice to Mr. Stacy of the cancellation, and that night, about midnight, the property was destroyed. Barton saw Mr. Stacy the next day and notified him that the company had canceled the policy and he had returned it to the company. The policy was never delivered to Mr. Stacy and he never saw it, or any part of it, and had no actual notice until after the loss of its contents or any of the conditions, restrictions or requirement's contained therein. Barton told Stacy that he would notify the company of the loss. He had already sent in the policy and it was not necessary to telegraph the company as the loss was a total one.. Barton first talked with Stacy by telephone the morning after the fire, and Barton asked if there was some one he could interrogate in regard to the loss, and Stacy recommended him to some reputable citizen in the village, and Barton did investigate the loss to some extent before he saw Stacy. A few days or a week after that, Stacy called on Barton again, and according to Stacy’s testimony, Barton told him he was afraid there was going to be trouble, that the company denied all liability on the policy, 'and some few times after that, Stacy saw Barton in regard to the matter and nothing was ever paid upon the policy. Barton testified he had some communication with Mr. Sowards, the general agent or general adjuster of the company, at Cincinnati; he was unable to tell just when this was, but he said that Sowards had written him a letter or told him that the company would not pay; he said this was three or four weeks after the loss, and afterwards he said it might be by letter, and at some place in his testimony he said it was sixty days after, and finally it was shown that Barton was unable to state when Sowards had made this statement to him that' the company would not pay. After the sixty days had expired, within which time proofs of loss might be made, Barton received a letter from Sowards in which he said:

“No proof of loss having been received within the time allowed there will, of course, be no possibility of our paying the loss unless it proves that you have by your communications with Mr. Stacy or Mr. Sutton so involved us as to make yourself liable to us for any claim which can be successfully prosecuted.”

The weight of authority generally seems to be that a local agent with power to solicit insurance, collect premiums and issue policies, under a policy containing such restrictions -and conditions as this one, has not the power to waive proof of loss unless the company has conferred upon the agent additional authority after the loss, or has apparently conferred such authority upon him. I say the weight of authority seems to sustain the proposition that in the absence of -anything of this kind, the local 'agent has no authority to waive such requirements.

There is no case in this state that is- decisive on this very question. The tendency of the Supreme Court of -this state has been to hold perhaps rather liberally to the doctrine that the agent who has .power to issue policies as Barton had, has full authority to represent the company.

In the case of Machine Co. v. Insurance Company, in 50 Ohio St., page 549, Judge Williams, in discussing-the q-uestiemi'-of- a -local fire insurance agent, held that such an agent was a general agent of the company. The real question in that case, however, was whether the agent had power to extend time of payment and receive payment for insurance other than -cash, so the language of Judge Williams must probably -be regarded as -dictum, rather than an expression of the Supreme Court that such an agent is a general -agent' of the company with power to bind it in all matters after the loss, as well -as before. In the fourth paragraph of the syllabus'the Supreme Court say:

“An agent authorized t'o make contracts of fire insurance and issue policies, may waive payment in cash of the premiums, and give time for their payment, unless there are restrictions upon -his authority of which the insured had notice; and such waiver may be express or implied.”

On page 558 of the opinion delivered by Judge Williams this is stated:

“The only other ground upon which it is -claimed the defendant is not liable is, that the premium was not paid until after the loss Occurred. Murphy was the duly commissioned agent of the defendant, authorized to make contracts of insurance, collect' premiums, and issue and renew policies; and to that end, was furnished by the defendant with printed forms' -of policies, signed in blank by tbe president and secretary of tbe company to enable him without conference with them to countersign and issue the policies in behalf of the company. It is well settled that such an agent is the general agent of the company, and may, in his dealings with those he insures, waive payment in cash of premiums, and, indeed, any of the conditions of the policy, except when a restriction upon his authority is in seme way brought to the knowledge of the insured.”

Although this may be dictum, it is sound doctrine in my judgment, 'and good law. This statement of Judge Williams would go to the extent of holding that such an agent was the general agent of the company in any matter relating to the policy unless there was an express restriction upon his authority in that respect brought to the knowledge of the insured. If it was contained in the policy, the insured would, of course, be bound to know it'. The restriction in this policy was in these words:

“And no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, or agent, or representative shall have such power, -or be deemed or held to have waived such provisions- or conditions unless such waiver, if any, shall be written upon or attached hereto.”

It is, of course, true that the company may confer any authority in the transaction of it's business upon any 'agent that it has, whether a local or general agent, and if it does confer such authority upon the agent, expressly or impliedly, the conduct of the agent would bind the company. If the company treats its agent in such a way -after -a fire as to hold him out as a person authorized to represent the company in all matters and things coming after the fire-, it would not be permitted to s-ay that he had authority to represent the company in some respects in regard to those matters occurring after the fire or necessary to be -attended to 'after a fire, and did not have authority to represent it in other respects. It can mot be permitted -for the company to confer authority upon its agent to represent it in certain things in regard to the loss after the fire, but, without notice to that effect to claim he had no authority as to receiving notice or proofs of loss. I take it to be a general rule of law that where the transaction of business is intrusted to an agent by a principal, that in the absence of any notice to the contrary, he has the authority, so far as third parties are concerned, to carry on the business to its completion and do all things' necessary for that purpose. In this ease, the agent represented the company,. and was permitted to represent the company in a manner inconsistent with the claim that he had no authority to do so after the fire in the matter of the loss. That was a fact tending to show that he had authority to represent the company in the matter of receiving notice or proof of loss, or in the matter of denying liability on the part of the company.

It should not be lost sight of that according to this record, at the time this property was insured, and at the time this fire occurred, or at any time before the loss occurred, plaintiff had no notice or knowledge of any agent of this company in the United States, except Mr. Barton. Stacy had never seen the policy; the company had its headquarters on the other side of the Atlantic, at Norwich, England, and when this loss occurred there- was no one on earth that Stacy knew that he could go to, except the agent from whom he had procured this policy, 'and he went to him, and the agent made the .statement to him- that he would give notice of the loss to the company, -and he did proceed to give notice of the loss to the company.. The agent asked Stacy whom he could inquire of in regard to the loss, and he gave him the name of a Mr. Watts. Barton communicated with Watts and ascertained the facts, ascertained that the loss was total. Barton wrote to the company and it wrote to him through Mr. Sowards, their agent, who was inclined to censure him, and the whole matter in relation to this loss was left by the company, so far as having anyone in charge on the ground was concerned, to Mr. Barton.

It seems to us that there is evidence in the record strongly tending to show that the company permitted Mr. Barton to represent them in this matter after the loss occurred, and if this were true, we think then he must be held in law to have had authority to do those things that it is claimed he -did do, so as to bind the company in the way of waiving notice of loss and -proofs of loss; and upon this proposition may be cited the case of Citizens Ins. Co. v. Stoddard, 64 N. E. Reptr., page 355, a decision of the 'Supreme Court of Illinois. The court say in the syllabus:

“In- an action-on a fire policy it was shown'that an alleged agent of the company had received the application and delivered the policy, and -that, when he received notice of the loss and forwarded it to the insurer, the latter acknowledged its- receipt to him, and asked him to investigate the case, but to do nothing by way of an adjustment. Subsequently not hearing from the adjuster, the insured called on the agent, -and he wrote to the insurer, who replied again, asking that he look into t'he loss. Held: That the evidence showed that the alleged agent was the 'agent of the insurer in the matter of the loss, so that conduct on his part inconsistent with the provision of the policy as to proofs of loss, would be binding on the insurer.”

The only defense in this case was that proofs of loss had mot been made within thirty days, but had been made in sixty daj^s, the agent having told the insured that sixty days would be soon enough. The court held that in view of the conduct -of the -agent and what he did for the company after the fire, that he so far represented the company that the3r could mot deny his authority to make this statement. The court say further, -at the end of the opinion, that it is unnecessary that such a waiver be written upon the policy. They say:

“The policy provided in substance that no officer, agent or other representative of the company should- have power to waive any of the conditions or provisions of the policy, except such waiver should be in writing indorsed upon or -attached to the policy. There is nothing in this stipulation which takes it -out of the general rule that the provision in -a policy of insurance that no waiver shall arise, except out of an agreement endorsed in writing, has reference only to the conditions entering into and forming a part of the contract' of insurance, and has no application to those conditions which are to be performed after -a loss h'as occurred.”

The court cites 162 Ill., 322; 44 N. E., 746, amid 16 Am. & Eng. Enc. Law (2d Ed.), p. 952.

We are of the opinion in this case that there was evidence tending to show that the agent Barton represented the company and was authorized to do so in these matters after -the loss, and that upon t-hait feature of the case, it should have been submitted to the jury. If the company permitted him to represent it in, the matter -after the loss and gave him -apparent authority to represent' it, the company is estopped from claiming that -he did not have -authority to waive proofs of loss, the furnishing of which is one of the steps provided by the policy in collecting the insurance. If B'arton, the agent, was given this authority; if he knew the loss was total, as he says he did; if he investigated it and had 'authority to do so, .and found that there were no suspicious circumstances in connection with the fire, he might waive proofs of loss; and if he was .given authority by the company to represent them after the loss in matters pertaining to it, and he said to the insured that the company denied all -liability, and the insured relied upon that and made no proof of loss and gave no written notice, the company would be estopped from claiming that he had no authority to make such statement. This company, like all others, acts, and must act through agents, and it -can make no statement except through an -agent. The insured, when his. property was destroyed, must find a representative of the company somewhere. The policy provided that he must make and give an immediate written notice of the loss to the company; that -did not -mean that he should sit down and write a letter and send it to Norwich, England; if he had done that, it would have been held perhaps to be a violation of the terms •of the policy, because there was an agent on the ground 'and it was required of him to give immediate notice to the company. He knew of no agent except this one; he knew of no other officer of this company, so far 'as the testimony shows, except the agent in Bowling Green.

We think further that there is evidence in this record tending to show that the company did in fact deny it's liability. The weight •of that testimony was for the jury. Mr. BaHon testified in some part of the record that Sowards notified him within three or four weeks after the loss that the company would not pay, Sowards being the general adjuster. In other places B'arton says this was later. His testimony is contradictory; but where the testimony of a witness is conflicting, especially where the witness is hostile, if there is some part of his testimony tending to support plaintiff's ■claim, if raises a question that the plaintiff has a right to have submitted to the jury. The-fact that before this policy was delivered, before the fire occurred, it was canceled by the company, so far as they could cainicel it, was a circumstance that would be proper to be considered upon the question whether the company denied liability. A jury would have a right to consider that -along with, all the other circumstances in the case, and the letter from Mr. Sowards to Mr. Barton might' perhaps be regarded as an admission on the part of the company that Barton had authority to speak for the company, for he says:

“Unless it proves that .you by your communications with Mr. Stacy or Mr. Sutton so involved us as to make yourself liable to us for any claim which can be successfully prosecuted.”

We hold further that if the company in fact denied liability, the agent had authority to communicate that to the insured, and if he did communicate it to the insured, that that would amount to a denial of liability on the part of the company and work a waiver of written notice and proofs of loss. We find no case upon that point, but it seems to us under the general principle of the law of agency, it must be held that such an agent as this, has power to communicate that to the insured and the insured has the right to act upon it.

We are of the opinion further that under the circumstances disclosed by the record in the case, Mr. Barton would be-held as far as this company and the insured were concerned, to have the power and the authority of a general agent. No notice was given to Stacy of any restriction of authority on the part' of the agent. There is no express statement in the policy that he had no authority to receive notice of and proofs of loss; and where a company whose headquarters are in a foreign country — across the seas — puts in the hands of an agent policies of insurance, signed and countersigned, and ready for execution and delivery, except filling in the name of the party and a description of the property, and no notice is given that there is any other agent on this hemisphere, we think that it must be held as a matter of law, that the company is estopped from denying his authority to represent the company in all matters necessary to the making of a contract of insurance and pertaining to a 1-oss, in ease a loss occurred, including the collection and paying of the insurance money. It is not the law that under such circumstances as these, a man is obliged when a loss occurs to start out and hunt for an agent who would have authority to receive notice or proofs of loss. The -agent with whom he contracted for his policy of insurance, to whom he was to pay the premium, and who conferred with him after the fire, was the 'only agent he knew of that, represented this company in this country.

Baldwin & Harrington, for plaintiff in error.

James O. Troup, for defendant in error.

Whatever the general rule may be as to such a local insurance agent not being a general agent of the 'company, in all matters pertaining to the policy, we think that under these circumstances the company is estopped from denying the 'authority and power of the agent to represent it in all matters relating to the loss, and the act of the agent Barton was the act of the company and binds it.

It was error for the court to direct a verdict in favor of the defendant, and for that reason, the judgment of the court of common pleas will be reversed, the verdict set 'aside and the case remanded for a new trial.


text:
    RIGHTS OF THE SURETIES OF A GUARDIAN AS AGAINST A FRAUDULENT TRANSFER.
    [Circuit Court of Medina County.]
    Lorinda Boies and Lura M. Penney, Executrix of The Last Will and Testament of J. C. Boies, Deceased, v. James C. Johnson and John C. Lance.
    Decided, October 15, 1903.

      Suretyship — Guardian’s Bond — Fraudulent Transfer — Statute of Limitations — Discovery of the Fraud — When Bight of Action Accrues.

    1. An indebtedness paid by reason of suretyship on tbe bond of a guardian relates back to tbe date of tbe bond.
    2. Where a guardian fraudulently transferred bis property, and bis sureties were subsequently compelled to make good a deficit under •the bond, their right of action as to the fraudulent transfer accrued at the time the transfer was made, or at the time of their discovery of the fraud, and the bar of the statute runs from the date of the transfer or of the discovery of the fraud, and not from the date of the payment made under the bond.

      Marvin, J.; Hale, J., and Winch, J., concur.
    Error to the court of common pleas.
   Suit was brought in the court of common pleas by the plaintiffs in error against the defendants in error, the amended petition setting out, in substance, that oo the 15th day of December, 1890, J. C. Boies was appointed by the Probate Court of Medina County as guardian of Elmer E. Garman and Sylvia A. Garman, both minors; that he immediately qualified and acted as such guardian up to the time of his death, which occurred on the 29th day of November, 1894; that the plaintiffs below (hereinafter spoken of as plaintiffs) were sureties upon the bond of said J. C. Boies as such guardian; that said guardian received of money belonging to his said wards some $3,800.00; that' at his death he was indebted to his said wards in about that sum; that he died insolvent. Thereafter the said Dura M. Penney was duly appointed and qualified as executrix of his will; that said Elmer E. Garman is now of full age, and that Frank Heath is the duly appointed and qualified guardian of said Sylvia A. Garman; that at the April Term, 1897, of the Court of Common Pleas of Medina County, the said Elmer E. Garman in his own right, and Frank Heath, as guardian -of said Sylvia, recovered a judgment against the said Dura M. Penney, as executrix aforesaid, and the said plaintiffs, om. account of the mo'ney belonging to said wards which was in the hands of the said J. G. B.oies at the time of his death, in the sum of $4,003.97, and for costs of suit, $15.85; that on the 23d day of October, 1897, plaintiffs paid upon said judgment the sum of $1,363.60, and on the 17th day of January, 1898, the further sum of $793.50; that said judgment, except to the extent' of such payments, is still in full force; that on the 5th day of June, 1893,while said guardian was indebted to his said wards in the sum of something more than $3,800, he conveyed to one Thomas A. McCoy certain real estate which he then owned, for the nominal consideration of $5,000, but in fact without any valuable consideration whatever; that on the same day the said J. C. Boies conveyed to said Dura M. Penney all the remainder of his property both real and personal, of any value whatever, wholly without consideration and by way of gift to her, the said Dura M. Penney; that on the 5th day of June, 1894, the said McCoy, at the instance 'and request of said J. C. Boies, and •without any valuable consideration whatever, -conveyed to the said Lorinda Boies the real estate-which had been conveyed to him by the-said J. C. Boies as aforesaid; that the said Lorinda Boies was the wife and is now the widow of the s'aid J. C. Boies, and that the said Lura M. Penney is his daughter and only heir 'at law; that said conveyances -amd transfers of -property were made by the said L C. Boies with intent to hinder, -delay and defraud the creditors of -him, the said J. C. Boies, and to prevent said creditors from collecting- their just claims from him. The.prayer of the petition is that said conveyances of real estate to McCoy and from McCoy to Lorinda Boise.be set aside -and.held for naught, and that the said executrix may be ordered to have the same appraised, advertised -and sold as a part of the estate of the said J. C. Boies, deceased.

A supplemental petition- was filed setting -out that the plaintiffs, since the beginning of the action, have paid the balance of the judgment against them and the- said Lura M. Penney, as set out in -the amended petition.

For answer to this the plaintiffs in error (hereinafter spoken of as the defendants) admit the conveyance from Boies to McCoy and from. McCoy to Lorinda, -as set out in the petition. They aver the fact to be that the only consideration for such conveyance was love and affection of -the said J. C. Boies for the said Lorinda, and that the conveyance from McCoy to Lorinda was a part of the same transaction as the conveyance from J. C. Boies to McCoy ; that it was all done for the purpose of transferring the title to this property from J. C. Boies to his said wife. They admit the guardianship as set out in the petition, but deny. that the amount owing by Boies to his wards was as much as is averred in the petition, but say that in fact, at the time of the conveyance made by Boies to McCoy, he was indebted to his. wards in only about-the sum of $1,500. They aver that during -all the time that said McCoy held the title to said real, estate he ..held-the same in trust for the said Lorinda. They further aver that the said J. C. Boies o-wed no other debts than said sum of about $1,500 which -he o-wed to his said wards, and that he, after such conveyance, -w-as still the owner of much more -than sufficient property to pay his indebtedness, setting out what such property consisted of. The answer also contains the following clause: “And these defendants further say that the cause of action set forth in the petition herein, if any ever existed in favor of the plaintiffs, accrued more than four years before the filing of the petition herein and the commencement of this action;” and they deny that any conveyances were made by Boies for the purpose qf hindering, delaying or defrauding his creditors.

To this answer the plaintiffs filed a general demurrer. This demurrer was sustained, and the defendants, not desiring to plead further, the court proceeded to enter judgment upon the pleadings against the defendants, setting aside the conveyance from Boies to McCoy and from McCoy to Loriada. The present proceeding is brought to reverse this judgment of the court of common pleas.

The .question then presented is, whether this demurrer should have been sustained. ' We are of opinion that it should not. We agree with counsel for the plaintiffs, that the indebtedness which they have paid by reason of their suretyship upon the bond of Boies as guardian relates back to the date of such bond. There was an implied undertaking on the part of Boies at the time the bond was executed that these sureties should be indemnified against all loss on account of the signing of the bond, hence they are entitled to be.treated as creditors whose claim subsisted at the time the conveyances sought to be set aside were made (24 A. & E. Ency. of Law, 774, and the authorities there cited).

If, however, Boies, at the time of these conveyances, retained sufficient property to amply provide-for all his debts, the plaintiffs would not be entitled to have the conveyances set aside (Crumbaugh v. Kugler, 2 O. S., 374.)

The averments of the answer seem to be sufficient to meet this requirement, whatever the facts might turn out to be upon the trial.

A more serious question raised by the 'answer is as to whether the action is barred by the statute of limitations.

Section 4982 provides that an action for relief, on the ground of fraud, must be brought within four years after the cause of action accrued. “But the cause of action in such case shall not be . deemed to have accrued until the discovery of the fraud.”

In the ease of Combs v. Watson, 32 O. S., 228, this language is used in the syllabus:

“Where the petition in such action shows on its fáce that the conveyance was .made more than four years before the action was brought, it must contain an averment that the fraud was not discovered until within that period, otherwise the defendant may demur to that petition on the ground that it does not state facte sufficient to constitute a cause of action.”

In this case there is no averment in any pleading that whatever fraud was perpetrated was not known to the plaintiffs at the time of the fraudulent acts complained of. The fraudulent acts complained of in this case began on the 5th day of June, 1893, when the conveyance was made by Boies to McCoy, and the last act by which the fraud — if there was a fraud — was completed was on the 1st day of June, 1894, when the deed was made from McCoy to Lorinda Boies. This action was 'begun in the court of common pleas on the 8th day of November, 1898. It , old seem to follow that the action was barred by the statute.

It is urged, however, that since the action was brought within four years after the plaintiffs had a cause of action against Boies or his estate, on account of the money which they were required to pay, they are not barred by this statute. The contention seems to be based upon the proposition that no right of action on account of these conveyances could accrue until a right of action had accrued for the payment to them of the money which became due t'o them by reason of their payments of the liability of Boies upon the bond. We do not understand that the sureties upon a guardian’s bond sustain any different relation to the principal than the sureties upon an ordinary commercial obligation-sustain to the principal upon such obligation. In the case of Combs v. Watson, supra,> the facts, ‘as appear on page 229 of the report, show that the conveyance made -by Watson, who was -the maker of a promissory note, was made before the maturity of the note, so that at the time such conveyance was made Combs, the payee of the note, had no right of action against Watson for the money which would be owing upon the note at its maturity;'and yet, as already shown by the quotation from the syllabus, the court said that the statute of limitations began to run when the conveyance was made, and on page 223 of the opinion, this language is used:

“And since hé (Combs) .was a creditor of the alleged fraudulent grantor (Watson) at the date of the conveyance, it follows that his. right to maintain such action existed from that time.”

Section 6344, R. S., as it read when the acts complained of in this proceeding took place, provides that:

“All transfers, conveyances or assignments made by a debtor, or procured by him to he made with intent to hinder, delay or defraud, creditors, shall be declared void at the suit of any creditor,” etc.

In Bump’s Fraudulent Conveyances, Section 503, this language-is used:

“The character of the claim, if it is just and lawful, is 'immaterial. It need-not be due, for although the holder can not maintain an action until it is due, he nevertheless has an interest in the property -as a fund out of which the demand ought to be paid. * * * A contingent claim is as fully protected -as one that is. absolute. * * * T'he statute embraces all pecuniary damages incurred by reason of the obligation, of a contract, whether of an ascertained amount or only sounding in damages, and whether actually asserted or only deman-dable.”

From the 'authorities cited, and others, we hold that, within the meaning of t'he statute, the plaintiffs were' creditors of Boies at the time the fraudulent transfers, if they were fraudulent, were made. Being such creditors, their right of action to set aside the conveyances accrued at the time the conveyances were made, there- being no averment' that the fact of the making of the conveyances and of consequent fraud upon them was not known when such conveyances were made; that more than four years -having elapsed since the making of such conveyances, the action- is - barred by the statute.

The judgment of the court of common pleas is therefore reversed, and the case remanded.