author: HOUCK, J. '

text:
    CHARGE TO JURY»
    [Tuscarawas (5th) Court of Appeals,
    July 11, 1916.]
    ■ Shields, Powell and Houck, JJ.

      Tuscarawas Co. (Comrs.) et al. v. S. A. Swanson et al.
    Special Charges ^ before Argument not Subject to Comment by Trial Judge. ,.
    Special charges before argument should be either given or refused by the trial judge without change, modification or comment; and a statement addressed to the jury by him to the effect that the instruction so given was not conclusive or more than a tentative statement of the law which might be modified in his general charge constitutes error which, in the event of a verdict adverse to the party ashing that such instruction be given, must be regarded as prejudicial error.
    [Syllabus by the court.]
    Error.

      E. E. Lindsay, Pros. Atty., and Buchanan, Beed & Bussell, for plaintiffs in error.

      J. F. Greene, T>. A. Hollingsworth and Lynch, Hay, Fimple <& Lynch, for defendants in error. .

      Motion to certify record overruled, Tuscarawas Co. (Comrs.) v. Swanson, 61 Bull. 370.

   HOUCK, J. '

This is a proceeding in error and is prosecuted from the common pleas court of Tuscarawas county, Ohio, to this court, where it is sought to reverse the judgment of the said court of common pleas. The plaintiffs in error were the defendants in the lower court, and the defendants in error were the plaintiffs.

The petition of the plaintiffs below sets forth three causes of action, being in substance as follows:

First. That for many years prior to March, 1909, there was a bridge across the Tuscarawas river, in Warwick township, Tuscarawas county, Ohio, belonging to and maintained by said county; that the same had become dangerous for public travel, by reason of decay, etc.; that it was condemned for public travel by the county commissioners of said county; that said bridge was an important one and used much for public travel; that plans were ordered prepared by said county commissioners for a new concrete bridge at or not far from the point where the old bridge stood; that plans and specifications were prepared for a new bridge, bids advertised for, etc.; that plaintiffs bid on same, and being the lowest bidders were awarded the contract for said new bridge; bonds were sold as provided by law, and a written contract entered into with plaintiffs for the construction of said bridge for the sum- of $31,196.77; that plaintiffs executed.the proper bond; that the plans and specifications, contract and bond, each and all were approved by the prosecuting attorney of said county, and that everything in the premises required by law to be done was done by plaintiffs.

Thereupon the plaintiffs entered upon the execution thereof, and obtained a large quantity of materials which they used therein, and employed a large amount of labor in and about the work of building and constructing said bridge. That on October 27, 1909, the county engineer, Edward Stingle, the agent of the defendants, and who was authorized to inspect, approve and accept .said work, materials, etc., approved an estimate to the amount of $602.52; that same was done under the terms of said written contract; that defendants refused to pay same, and plaintiffs pray for judgment for said $602.52 at six per cent from October 2,7, 1909.

Second. Plaintiffs pray judgment for a second estimate of $776.10 at 6 per cent from December 10, 1909.

Third. That in addition to the estimates set out in the first and second causes of actions they expended the sum of $15,000 under said contract in and about the work and materials used and in the necessary preparation to carry on said work; that plaintiffs were ready and willing to carry out their part of the contract, but defendants refused to permit them to do so, and defendants have notified plaintiffs to cease work upon said contract and have compelled them to abandon their work, and no part of said materials furnished or work done by them has been paid for, and by reason whereof they pray for judgment for $13,618.38, with interest from December 10, 1909.

Wherefore, plaintiffs ask for a judgment in the sum of $15,000 with interest.

The answer admits certain allegations in the petition, but the defendants rely upon the following defenses:

1. That the new bridge was not being built at the particular point where the old bridge stood.

2. That the plaintiffs did not expend the money claimed by them to be expended, and that they had not furnished the materials and had not done the work claimed by them.

3. That the contract- was not approved as required by law, and the letting of same had not been properly advertised.

The reply filed by plaintiffs was in the nature of a general denial of all the allegations therein inconsistent with the allegations of the plaintiff’s petition.

Upon these pleadings and the evidence the cause was submitted to a jury, and a verdict rendered in favor of the plaintiffs in the sum of $10,663.84. A motion for a new trial was filed, heard and overruled, and a judgment entered on the verdict.

The plaintiffs in error seek a reversal of the judgment below upon numerous grounds, as set forth in their petition in. -error, but in oral argument their counsel seem to rely upon the following grounds:

1. That the trial judge erred in overruling the demurrer to the petition,

2. Because no handbills had been circulated, and the proper notice had not been given of the fact that a new bridge was to be constructed,

3. For the reason that the bridge was not constructed at the point or place of the old bridge.

4. That the court erred in giving" special written requests Nos. 2, 3 and 4, before argument, as requested by plaintiffs below.

5. That the court erred in refusing to give written request No. 2, before argument, as requested by defendants.

6. That the court erred in its- general charge to. the jury.

7. That the verdict of the jury was against the manifest weight of the evidence.

As to alleged errors 1, 2 and 3, we will say that this cause has heretofore been before this court on a demurrer to the petition -which involved the same questions, and the court having overruled the demurrer we do not think it necessary to discuss the same further than to say that we still adhere to our former holding and judgment in overruling said demurrer to the petition in this ease.

Fourth ground of alleged error, as to special written requests Nos. 2, 3 and 4, given before argument at .the request of the plaintiffs below, we find upon examination that each and all^ of them are correct propositions of law, and are clearly applicable to the facts in the present ease, and the court committed no error in giving them to the jury.

In passing, we will say that it is the duty of a trial judge, when requested to do so by either party before argument, to give to the jury special written requests as to the law applicable to the facts and the issues to be determined in the case, and if they are proper to be given they must be given without comment on the part of the court,

From an examination of the record in this case we find that the trial judge made comments upon these requests, and stated to the jury that they might be modified by what he might say in his general charge. The court said:

“But I will charge a part of the plaintiffs’ requests with, the distinct understanding that something I might say, and it might be considerable, in the general charge, that will be delivered to you after the argument, must be taken into consideration in connection with that which I am about to charge before argument. What I now say to you, in charging you before argument, I want you to distinctly understand is not conclusive; that I might say something more on these propositions, in addition thereto, that may considerably modify them and put them in a new light. ’ ’

After the court had given these special charges he continued as follows:

“Now, as I have said before, in what I might have to say in the general charge after some considerable modification of this, or possibly additions thereto, will necessarily creep in.”

We hold that it was the duty of the court to give or refuse these propositions of law as they were presented to it, without any change or modification, and without any reference to what the court might or might not do in its general charge with reference to modifying the same. It was error on the part of the court to comment upon these propositions of law, but as the error was against the prevailing party, it of course was not prejudicial.

Coming now to the fifth error complained .of: Did the court err in refusing to give special request No. 1, before argument, as requested by the defendant below ?

From an examination of this request, in our opinion the evidence sought by it to be excluded from the jury was irrelevant and wholly immaterial to a proper determination of the issues, raised by the pleadings. But how could the plaintiffs in error be prejudiced by the trial court permitting testimony to go to> the jury concerning an issue or issues that were not in the case?

Sixth ground of alleged error: Did the court err in its general charge to the jury? We have examined the general charge of the court with much care, and while we find some technical errors, yet upon the whole it fully covers the proposi-lions of law applicable to the facts as shown by the evidence, and we find no error therein prejudicial to the rights of the plaintiff in error.

Seventh ground of alleged error: Was the verdict of the jury against the manifest weight of the evidence, and did the court err prejudicially against the rights of the plaintiff in error in overruling the motion for a new trial and entering a judgment on the verdict?

The bill of exceptions in this case contains about six hundred pages of typewritten matter, and we have spared neither time nor labor in reading the testimony of the witnesses and in an examination of the exhibits attached thereto, and we have done this in- order to satisfy ourselves as to whether of not the judgment is supported by sufficient evidence, and we do not hesitate to say that we are fully satisfied that it is; and we therefore find that the judgment is not against the manifest weight of the evidence.

From an examination of the whole record we find therein no error prejudicial to the rights of the plaintiffs in error, and further finding that substantial justice has been done to all .parties to this suit, we hold that the judgment below should be affirmed.

Judgment affirmed.

Shields and Powell, JJ., concur.


source: Caselaw Access Project

author: GORMAN, J.

license: Public Domain

text:
    CONTRACTS — REFORMATION.
    [Hamilton (1st) Court of Appeals,
    July 19, 1915.]
    Jones, Jones and Gorman, JJ.

      Michael J. Gibbons v. J. H. Day Co.
    Reformation Denied when Contract is Fuil and Complete.
    Before a contract can be reformed the evidence establishing a, mistake must be clear and convincing and must show that the mistake was not that of one of the parties alone but was mutual; hence, when a contract in writing appears to be full and complete and no other plans or specifications are shown to have been intended to be made part thereof by reference or attachment, reformation will be denied.
    Appeal.

      LitUejord,- James, Ballard, & Frost and Van Deman & Vorys, for plaintiff.

      Clore é Clayton, for defendant.

      Motion to certify record overruled, Gibbons v. Day Co. 61 Bull. 168.

   GORMAN, J.

The action below set out .in the petition consisted of . three causes. The first was to reform the contract for "the heating of the defendant company’s plant on Harrison avenue in this city, which contract was entered into between the plaintiff and the'defendant.

The contract is in writing, signed on behalf of plaintiff by M. W. Ward, superintendent, and on behalf of the defendant company by J. IT. Day as president. At the time of the trial of the case below Mr. Day was dead and Mr. Ward was non compos, so that the testimony of neither was available. It is claimed by the plaintiff that there was a mutual mistake in the execution of the contract in that there was omitted therefrom a reference to the plans and specifications, and that the same were to be made a part of the contract.

We have examined the record and considered the briefs of the parties in this case, and we are rumble to find that there was a mutual mistake made by the parties. The contract for the heating of defendant company’s plant appears to be full and' complete, and there is no evidence before us which tends to show that the parties had before them any plans and specifications, or intended to make them a part of the contract either by reference or by attachment to the contract. It is elementary law that in order to warrant a court in reforming a contract, the evidence to establish a mistake must be clear and convincing, and that the mistake was not that of one of the parties alone but was mutual.

We are unable to find from the evidence in this case that there was a mistake made by the parties hereto, and we therefore deny the prayer of the petition as to the first cause of action, which cause of action will be dismissed at the cost of the plaintiff.

The issues made upon the second and third causes of action set out in the petition are not before us, and the case will be remanded to the court of common pleas for further proceedings according to law.

Jones (E. H.) and Jones (O. B.), JJ., concur


author: HOUCK, J.

text:
    REPLEVIN.
    [Muskingum (5th) Court of Appeals,
    November 18, 1916.]
    Shields, Powell and Houck, JJ.
    A. B. Smith v. Lizzie Feasley.
    Affidavit in Repleyin not Pleading and May be Verified by Attorney.
    An affidavit in replevin is not a pleading, and its verification Is not governed by Sec. 11358, limiting the causes in which the verification may he by an agent or attorney, but rather by Sec. 12052, making an affidavit of an agent or attorney of the plaintiff sufficient.
    [Syllabus by the court.]
    ERROR.

      C. Wine', for plaintiff in error.

      A. A. George, for defendant in error.
   HOUCK, J.

Plaintiff in error contends that the common pleas court erred in sustaining a motion to the affidavit in i*eplevin of the plaintiff below, the plaintiff in error, and also in dismissing the petition in the case. The affidavit in replevin was made by the attorney for the plaintiff, and the defendant below, the defendant in error, urges that it is not sufficient in law because it does not comply with the provisions of Sec. 13358, G. C. Upon the other hand, the plaintiff in error contends that the verification of said affidavit in question was made under favor of Sec. 12052 G. C. and that it is in full compliance with law.

Upon an examination of these sections of the General Code, we are fully convinced that the claim of plaintiff in error is sound. An affidavit in replevin is not a pleading, and therefore Sec. 11,358 G. C. does not apply to the verification of, or as to who is authorized in a replevin case to make the affidavit, but See. 12052 governs. The affidavit under consideration, as we view it, fully complies with all the provisions of Sec. 12052 G. C. Therefore, from our examination of the record in this case, we find error therein prejudicial to the rights of the plaintiff in error, and the judgment of the common pleas court is reversed and the cause is remanded to that court with instructions to overrule the motion to the affidavit in replevin and the order dismissing the petition is set aside.

Cause remanded to the common pleas court with instructions to carry out the order of this court.

Shields and Powell, JJ., concur.


author: JONES, (O. B.), J.

text:
    RECEIVERS.
    [Hamilton (1st) Court of Appeals,
    May 24, 1913.]
    Swing, Jones and Jones, JJ.
    George Wiedemann Brew. Co. v. Otto Herman et al.
    Receiver not Authorized on Simple Contract Claim to Exclude . Levy of Judgment Creditor.
    .Appointment of a receiver for the property of a debtor, where the plaintiff is the owner of a simple contract claim, and the appointment would exclude a judgment creditor from his right to levy upon the said property for the satisfaction of his judgment is not authorized by See. 11894 G. C.
    ERROR.

      Dolle, Taylor &• O’Donnell, for plaintiff in error.

      James M. Stone anid August Bruch, for defendant in error.
   JONES, (O. B.), J.

The only question involved in this ease is the jurisdiction of the insolvency court in an action to appoint a receiver to take charge of all the property of a corporation on the petition of a creditor whose claim is on an account for merchandise sold, and has not been‘reduced to judgment, where the sole object of the receivership is to conserve the property of the defendant and prevent the levy of an execution or executions thereon and sale thereunder.

The corporation known as “the Spotlesstown Club,” whose property is thus protected, is a corporation not for profit and is operated for the “physical and social benefit” of its members. The property consists of a club house with its furniture and fixtures on the Little Miami river near Milford Park, and its only other assets are the uncollected accounts owing to it by its members. .

It appears that the next day after the George Wiedemann Brewing Company had received a judgment in the court of common pleas for more than $1,400 against the Spotlesstown Club, plaintiff below, who claims less than $45, filed his petition in the insolvency court praying for a receiver, in which he sets out the fact that the brewing company had obtained its judgment and threatened to levy execution thereunder, and that other creditors were also threatening suits, and that a sale by the sheriff upon execution would be at a sacrifice. The defendant club appeared contemporaneously with the filing of the petition and filed its answer consenting to the appointment of a receiver as prayed for, and the appointment was made. The brewing company had no notice and was not a party to the suit as originally filed. On its own application within three days after the filing of the petition the brewing company was made a party defendant and filed an application to vacate and set aside the appointment of the receiver. This application was denied and the brewing company brought these proceedings in error to reverse the action of the court thereon.

The action in the insolvency court was exclusively one for the appointment of a receiver. No other relief was sought that the court had jurisdiction to grant. The sole purpose of the proceeding as shown by the petition itself was to prevent creditors from pursuing the remedies allowed them by law for the recovery and enforcement of their judgments. The only relief the plaintiff’s claim primarily entitled him to was a money judgment for the amount of his claim, and the insolvency court has no jurisdiction to enter such judgment in favor of plaintiffs.

It is contended that Clause 1 of the General Code, 11894, authorizes the appointment of a Receiver in an action “by a creditor to subject property or a fund‘to his claim.” But this is only in a proper cause pending in such court. It does not authorize the court on behalf of the owner of a simple contract elaim through the medium of a receiver to take possession of the property of a debtor to the exclusion of the right of a judgment creditor to levy an execution thereon for the eollee.tion of his judgment.

As was said by the court in Cincinnati, H. & D. Ry. v. Duckworth, 1 Circ. Dec. 618 (2 R. 518), affirmed by the Supreme Court, 21 Bull. 36:

“The appointment of a receiver is merely a provisional .remedy, ancillary and auxiliary to the main action, and can only be made in an action brought to obtain some other equitable relief which the court has the right to grant, and where it appears to be necessary to make such appointment in order to preserve the property during the litigation, so that the relief awarded by the final judgment, if any, may be effective. ’ ’

The appointment of a receiver can not be the ultimate relief sought. It is exercised by the court in a proper action to preserve the property upon which its subsequent judgment may operate. It is in the nature of an attachment or execution before judgment. Callahan v. Ice Co. 7 Circ. Dec. 349 (13 R. 479).

As said by Judge Spear in Cheney v. Cycle Co. 64 Ohio St. at 214 [60 N. E. 207] :

“His appointment is an equitable remedy, bearing the same relation to courts of equity that proceedings in attachment bear to courts of law, the appointment being treated as an equitable execution. The purpose is to secure the means for satisfying the final order and judgment of the court in the action, and the effect of the seizure is to place the property seized in the custody of the court,” and citing Cincinnati, S. & C. Ry. v. Sloan, 31 Ohio St. 1.

And the rule is thus stated in 34 Cyc. 29:

“It is well settled as a general rule that the appointment of receivers is an ancillary remedy in aid of the primary object of a litigation between the parties, and such relief must be germane to the principal suit; and a suit can not be maintained under this general rule where the appointment of a receiver is the sole primary object of the suit and no cause of action or ground for equitable relief otherwise is stated.”

The appointment of receivers for failing corporations made upon their own applications or that of some obliging creditor has been justly reprobated in numerous cases. Moss Nat. Bank v. Lakeside Co. 10 Circ. Dec. 542 (19 R. 365); Delacroix v. Steel Co. 19 Dec. 767 (8 N. S. 484); Gott v. Schultze Co. 21 Dec. 604 (12 N. S. 206); North Fairmount Bldg. & Sav. Co. v. Rehn, 8 Dec. 594 (6 N. P. 185).

The vigilance of a creditor is poorly rewarded if as soon as be has obtained bis judgment be is prevented from collecting it by execution because some friendly creditor fearing 1-bat the debtor’s property may not yield the full value at judicial sale succeeds in inducing a court of equity to prevent such sale by a receivership. The case at bar is certainly unusual because it can hardly be expected that the receiver could make a profit out of the operation of a social club, or that it would yield more if sold as a going concern.

Nor will the fact that the order authorized the receiver to collect club dues in arrears in addition to conserving the club house and furnishings give to the court the power of appointments which we have found to be otherwise lacking.

The court below had no power to appoint a receiver and ' its order should be set aside and vacated. Cause remanded.

Swing and Jones, (E. H.), JJ., concur.


author: RICHARD'S, J.

text:
    INSURANCE.
    [Cuyahoga (8th) Court of Appeals,
    April 21, 1917.]
    Chittenden, Kinkade and Richards, JJ., of the Sixth District, sitting by designation.

      Cleveland Wire Spring Co. v. General Acc., Fire & Life Assurance Corporation, Limited.
    1. Good Faith in Settlement of Actions Required of Company Indemnifying Assured for Accidental Injuries to Employes.
    An indemnity insurance company issuing policies to indemnify the assured in a fixed maximum sum against loss by reason of liability which may be imposed by law on the assured if any of its employes should accidentally suffer injuries within the provisions of the policy, owes to the assured the duty of exercising good faith under its contract of indemnity and in negotiations for the settlement of legal proceedings brought by injured employes.
    2. Rule Applied.
    Where a policy for $5,000 contains a provision that no action shall lie against the indemnity company for any loss under the policy Unless brought by the assured for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue, and the petition in an action by the assured against the indemnity company avers that the assured had been sued for a sum much greater than the face of the policy by an employe injured in its service; that while the action was pending, the assured and the indemnity company made every effort to settle with the injured employe and his attorney for a reasonable amount, but that $7,500 was the best proposition that could be obtained; that the assured offered to pay $2,500 of this amount but that the indemnity company refused to pay more than $3,500 although stating that the conditions were such that a verdict of $10,000 or more would be rendered in all probability against the assured, which facts the petition alleged constituted bad faith, and the petition further alleged that the ease was not settled but proceeded to trial and resulted in a verdict and judgment in favor of the employe for $20,000 which was paid by the assured, the averments of fact do not show bad faith on the part of the indemnity company nor state facts which render it liable for the difference between the amount paid in satisfaction of the judgment, and the amount for which the action could have been settled.
    [Syllabus by the court.]
    ERROR.

      T. J. Ttoss and Molding, Hasten, Duncan & Decide, for plaintiff in error.

      Hoyt, D'ustin, Kelley, McKeehan & Andrews and. Mr. Horne, for defendant in error.

       Motion to certify record overruled, Cleveland Wire Spring Co. v. Assurance Corporation, 62 Bull. 315.

   RICHARD'S, J.

Tbe defendant issued to the plaintiff a policy to indemnify it to the extent of five thousand dollars, against loss by reason of liability which might be imposed by law upon plaintiff if any of its employes'should accidentally suffer bodily injuries while employed in plaintiff’s factory, and within the provisions of the policy. During the term of the policy one of plaintiff’s employes, named Joe Fogach, was injured, which injuries were accidentally suffered and were alleged to have been suffered through the negligence of the plaintiff herein while Fogach was such employe in plaintiff’s factory. The policy of indemnity provides as follows:

* ‘ G-. Except as herein elsewhere provided for, the assured shall not voluntarily assume any liability, settle any claim, or incur any expense except at his own costs, or interfere in any negotiation for settlement or legal proceeding Avithout the consent of the corporation previously given in writing.”
“I. No action shall lie against the corporation to recover for any loss under this policy unless it shall be brought by the assured for loss actually sustained and paid by him in money in satisfaction of a judgment after trial of the issue.”

An action was brought by Fogach against the company to recover for the injury suffered by him, and while it was pending negotiations for settlement occurred. The ease was not settled but proceeded to trial and resulted in a verdict and judgment in favor of Fogach in the sum of $20,000, which amount was paid by the Cleveland Wire Spring Co., the plaintiff in this case.

The petition in the present action contains three causes of action, the first cause being based on the policy to recover the amount thereof, to-wit, $5,000. The second cause of action is based upon, a clause in the policy rendering the indemnity company liable for immediate and imperative medical and surgical relief and is for $49.75. These two causes of action have been adjudicated in favor of the plaintiff in this case and are not involved in the controversy now pending between the parties.

The third cause of action was met by a demurrer filed by the defendant, which demurrer ivas sustained and final judgment rendered on that cause of action against the plaintiff.

It is averred, in substance, in the third cause of action in this ease that after the original action to recover damages for personal injury was brought, the indemnity company undertook to and did defend the same in the name of this plaintiff and advised plaintiff that it had made every effort to settle with Joe Fogach for a,reasonable amount but was unsuccessful, and that the least amount that the indemnity company was able to settle for was far in excess of the amount of the policy limit, and that if the case proceeded to trial there was a strong probability of a verdict being rendered in excess of the amount of five thousand dollars, and advised the Wire Spring Company to consult its own private counsel as to the best manner of handling the case.

The petition further avers that this plaintiff did employ counsel and negotiated with said Joe Fogach and his attorneys for the purpose of settling the claim, and as a result of such negotiations obtained a proposition of settlement in tbe sum of $7,500, and that it communicated tbe offer of settlement to tbe indemnity company and agreed to pay, in order to effect the settlement, an amount equal to tbe difference between $7,500 and tbe amount of tbe maximum liability of $5,000 stipulated in the policy to be paid by tbe indemnity company.

Tbe petition further avers that tbe indemnity company thereupon stated to plaintiff that it would not pay in settlement any sum of money in excess of $3,500.00, and that if settlement ivas to be made this plaintiff must pay tbe difference between said amount of $3,500.00 and the amount of tbe proposed settlement, $7,500.00. The plaintiff avers that the indemnity company represented to it that there was urgent necessity of settling the case as the conditions were such that a verdict of $10,000 or more would in all probability be rendered against the Wire Spring Co. as defendant in the suit brought by Joe Fogach; and the plaintiff avers that these facts constitute a breach.of good faith on the part of the indemnity company in the performance of its contract. Plaintiff demands judgment on this third cause of action in tire sum of $12,500, being the difference between the amount paid by it in satisfaction of the judgment, and the amount for which the case could have been settled.

The theory of the plaintiff in this action is that the indemnity company impliedly agreed to exercise good faith in its conduct under the contract of indemnity, and that having, as plaintiff claims, failed so to do, it is liable in tort for the damages proximately resulting therefrom. We are quite in accord with the plaintiff’s contention that the duty rested upon the indemnity company to exercise good faith under the contract relations existing between the parties, and it will become necessary to recur to the averments of the third cause of, action to ascertain whether it does set forth such facts as may amount to a charge of bad' faith.

The contract of indemnity only rendered the company liable for loss actually suffered and paid by the assured in satisfaction of a judgment after trial of the issue. It, of course, can not be contended that liability arose, by virtue of the provisions of the policy, in excess of the maximum amount of $5,000 specified therein, and for immediate imperative medical and surgical relief; and no liability for any amount arose under the contract of indemnity until after judgment had been rendered against the assured and the same had been satisfied by it. The pleading avers that the indemnity company stated that there was a “strong probability of a verdict being rendered in excess of the policy limits,” and that “a verdict of $10,000 or more would in all probability be rendered against this plaintiff as defendant in the suit of Joe Fogach.” It will be noticed that the averments do not show that the indemnity company was admitting its liability to pay the full amount of its policy by reason of the injury to Fogach, but only that there was a strong probability of a large verdict and that a verdict of $10,000 or more -would in all probability be rendered. The pleading nowhere shows the extent of the injuries to Fogach, nor the manner in which they were received. It is a fair inference from the averments, that the prosecution of the ease was attended with the uncertainty usually met with in actions by employes to recover for personal injury, the strong probabilities being, as averred in the petition, in favor of the recovery of a large sum in this case.

The indemnity company, however, had the right to estimate and value that probability. It might well take the position that while the verdict would probably be in excess of the amount of its policy, it might not be so, and it had the right, ■under the terms of the policy, to require that the action should be litigated in order to definitely settle and determine the amount of the liability, if any. Evidently, under the aver-ments of the third cause of action, it valued this right at $1,500, and in so valuing it and in declining to pay an amount in excess of $3,500 by way of settlement, the petition contains no averments of fact showing bad faith. Looking at the result which finally occurred it would have exercised better judgment by offering to pay a larger sum than $3,500, but this is far from saying that in what it did do it was in any wise guilty of bad faith. It is perfectly clear, under the language of the policy, that the indemnity company might have stood on its contractual rights and declined to offer tbe payment of any sum by way of settlement in advance of the trial.

The precise question under consideration does not appear-to have been determined in very many reported cases but the-principles determining liability in such cases have been announced in some very respectable authorities.

Schmidt & Sons Brew. Co. v. Travelers’ Insurance Co. 244 Pa. St. 286 [90 Atl. 653], was a case in which under an indemnity policy of five thousand dollars settlement could have been effected for six thousand dollars, the assured offering to contribute one thousand dollars to the amount and requesting the indemnity company to make settlement, which was refused. The trial resulted in a verdict and judgment for $9,200. It is true that the report of this case does not show that bad faith was specifically charged against the indemnity company as is claimed to be charged in the petition in the instant ease; but the petition in the case cited did set forth the facts already stated, and the only difference of importance between that case and the case now under consideration is that the defendant company admitted there was strong probability that a verdict would be rendered for a sum largely in excess of the face of the policy. In the opinion of this court these averments do not distinguish the case from the authority just cited.

Brown & McCabe v. Guaranty & Accident Co. 232 Fed. 298, is another case shedding much light on the question under consideration. In that case the report shows that the indemnity company recognized its liability, and this fact distinguishes that case from one in which the averment is only that there is strong probability of a verdict being rendered in excess of the amount of the policy. The court, in the ease last cited, uses this language in the course of the opinion: v

“It has been held that, under a policy like the one -in question, the insurance company has a right to settle with an injured employe or not, as it deems advisable, and if it neglects or refuses to do so, and litigates a matter in good faith, and judgment is recovered for more than the face of the policy, it. is not liable for the excess.”

While announcing the rule as above stated, it held that. the case was not within its terms because it appeared to be an attempted hold-up of the assured. The averments in the ease at bar do not show that the indemnity company undertook to hold up the assured, nor that it exercised bad faith, but rather that the parties were all negotiating in an. attempt to make such a settlement as would be advantageous to all parties concerned.

An authority on which much reliance is placed Toy the-plaintiff is Wisconsin Zinc Co. v. Fidelity & Deposit Co. 162. Wis. 39 [155 N. W. 1081], In that ease the court -held that no duty to exercise ordinary care was enjoined upon the indemnity company by the terms of the policy and determined that the first and second causes of action were insufficient. The third cause of action was held to set forth a good cause of action because the court, as it construed the averments thereof, reached the conclusion that it did in fact charge the indemnity company with failing to exercise good faith. We are entirely in accord with the holding in that ease.. The indemnity company had the right, as wras there said, to consult what it deemed to be its own interest in making settlement, but it did not have the right to abuse the power vested in it and recklessly and contumaciously refuse to settle. It can not be said that the aver-ments in the third cause of action in the case at bar show reckless or contumacious conduct on the part of the indemnity company. It went no farther than to concede strong probability of a large verdict, perhaps bearing in mind that judgments were not always rendered on verdicts which had been returned, and, if rendered, were sometimes for- smaller amounts than named in the verdicts, and perhaps relying also on the possibility of obtaining a reversal of any judgment that might be rendered. The indemnity company in determining how much it would pay by way of settlement had the right to take into consideration all the possibilities that were or might be presented to relieve it from ultimate liability under the terms of its policy, including the possible insolvency of the assured. It is evident from the fact that it offered seventy per cent of the face of the policy by way of settlement, that, it must have realized there was a strong probability of recovery in a large sum. However, in view of the fact that its maximum liability under the policy was $5,000, it falls very far short of being an admission on its part of a liability for the amount of $5,000, for it to suggest the probability of a recovery of an amount that would constitute such a liability, — much less does it tend to show any bad faith on its part.

We find nothing in the case of Brassil v. Casualty Co. 210 N. Y. 235 [104 N. E. 622], inconsistent with the views expressed in this opinion.

The judgment will be affirmed.

Chittenden and Kinkade, JJ., concur.


author: KUNKLE, J.

text:
    CONTRACTS — PLEADING—TOWNSHIPS.
    [Clark (2nd) Court of Appeals,
    May 19, 1916.]
    Perneding, Allread and Kunkle, JJ.

      Mad River (Tp.) v. Austin-Western Road Mach. Co.
    1. Petition to Recover from Township for Road Building Machinery Demurrable in Absence of Averment of Compliance with Burns Law-
    A petition which attempts to state a cause of action based upon an alleged indebtedness incurred by township trustees for the purchase of road-building machinery, is subject to demurrer, in the absence of an averment that the provisions of Sec. 5660 G. C., requiring certificate of funds available, have been complied with.
    2. Requirement of Certificate that Money is in the Treasury and Unappropriated, Controls purchase by Township of Road Machinery.
    The provisions of Sec. 5660 G. C., apply to road-building machin- • ery purchased by township trustees, under authority of Sec. 3275 G. C.
    Error.

      Zimmerman & Zimmerman, for plaintiff in error.

      Keifer & Keifer, for defendant in error.

      Motion to certify record overruled by the Supreme Court, October 13, 1916, Austin-Western Road Mach. Co. v. Mad River (Tp.) 61 Bull. 338.

   KUNKLE, J.

Defendant in error, the Austin-Western Road Machinery Co., brought suit in the court of common pleas to recover judg-irient against plaintiff in error, Mad River township, Clark county, in the sum of $2,400, with interest, upon a contract for the purchase of a road roller.

Such contract was entered into August 1, 1913, and is evidenced by two promissory notes of $1,200 each, one payable Mardh 1, 1914, and the other March 1, 1915, both bearing interest.

The notes were signed A. PI. Smith, trustee;.J. H. Linder-muth, trustee, and S. E. Dunevant, trustee.

The petition, among other things, contains the following averments, viz.:

“The said trustees who, for said township, so purchased said road roller and executed the so-called notes as aforesaid, and also their successors, have for said township, retained and used and have continuously since said purchase, held and enjoyed and still hold and enjoy the possession of the same; and they have, continuously since, neglected and refused, on demand, to pay for said road roller the said $2,400, with interest as aforesaid, or any part thereof, though there has been ample money in the treasury of said township belonging to it and to the credit of its several funds, not otherwise appropriated, applicable to the payment thereof; and said trustees have neglected and refused, on demand, to apply the same, or any part of it, to pay said indebtedness.
‘ ‘ Prior to the 1st day of August, 1913, there had been taxes levied by the trustees of said township in and for the year' 1913 which were thereafter collected, and there was, also, on said last-named date and since, in process of collection, moneys, arising from taxes and from other sources, belonging to said' township then in or thereafter came into said treasury to the credit of its several funds, not otherwise appropriated, and sufficient to pay plaintiff for said road roller, purchased as aforesaid, and, on demand the said trustees of said township have refused and neglected, and will still refuse and neglect to apply the same to pay, in whole or in part, the said indebtedness to plaintiff.
“The plaintiff further says that since August 1, 1913. the trustees of said township have contracted other indebtedness on its behalf and they have appropriated money and caused ■ the same to be paid, from time to time, from funds belonging to and in the treasury of said township, applicable as aforesaid and sufficient to pay the said indebtedness to plaintiff in full: and taxes were levied and collected for the year 1913, for the express purpose of paying for said road roller, and the same, thus levied and collected, was paid into the treasury of said, township as follows: $791.49, February —, 1914, and $790.62, September —, 1914, an aggregate sum of $1,582.11, all of which has been and is now withheld by said trustees from being applied toward paying plaintiff for said road roller. The said aggregate sum so levied and collected is still in said township treasury unappropriated, subject to be used to pay the said indebtedness to plaintiff unless the same, or part thereof, has been diverted by said trustees to other uses.”

To the petition, defendant below filed a general demurrer, which was overruled by the trial court.

Defendant thereupon filed an answer in which it admitted that it was a political subdivision of the county and state, as .averred in the petition; that A. H. Smith, J. H. Lindermuth .and S. E. Dunevant were trustees of said township in 1912 and 1913; and that said Smith, Lindermuth and Dunevant signed ¡an alleged contract as averred in the petition and gave the notes as set forth in the petition. The answer also contained the following averments: 1

“Defendant admits that prior to August 1, 1913, there had been levied by the trustees of the said township in and for the year 1913, certain taxes to be collected in said years 1913 and 1914, to be used for the payment of said notes, and that there was collected thereon the sum of $1,582.11, and that the same is now on deposit, unappropriated, subject to be used by the trustees of the said township.
“Defendant further says that at the time of making .the alleged contract, as set forth in the plaintiff’s petition, the said trustees were not in session and that no resolution had been passed authorizing said alleged contract to be made; and that the said alleged contract was signed by the several persons named at their respective homes, they not having been authorized so to do at any regular meeting of said board of trustees of said township.
“Defendant says further that at the time of entering into said alleged contract there was only twenty-nine dollars and thirty-eight cents in the hands <ff the treasurer of said township, unappropriated, and that in order to pay for said roller under said alleged contract, the said A. H. Smith, J. H. Lin-dermuth and S. E. Dunevant, gave the two notes as set forth in plaintiff’s petition at the dates named on said notes, and! said notes were accepted by said Austin-Western Co., Limited, as full payment of said account of twenty-four hundred dollars, as claimed by it against said Mad River township; that in order to pay said notes said trustees levied a special assessment known as the road repairing machinery fund, and that if said contract vas legal or said trustees had the legal right to execute said notes, that amount might be applied to the payment thereof.
. “Defendant says that said road roller was used for a period of about thirty days in the fall of the year 1913, but that the same, since said date, has been stored in the township house of said township, and not used by the defendant or any other person or persons, and that said road roller is now and has been since 1913, there subject to the order of the said plaintiff.
' “Defendant further says that there has not been sufficient money in the hands of the township treasurer, unappropriated, which could be used for the purpose of paying said notes, given for said road roller, at any time since said notes were given.
“Defendant further says that at the time of entering into said alleged contract between the plaintiff and the defendant, the clerk of said township did not first certify that the money required for the payment of such obligation or appropriated was in the treasury to the credit of the fund from which it was to be drawn, or had been levied or placed on the duplicate, and in process of collection and not appropriated for any other purpose.
“Defendant denies each and every other allegation in said petition contained and not herein specifically admitted to be true.”

Plaintiff below filed a general demurrer to tbe answer,, which demurrer was sustained by the trial court.

Defendant below declining to plead further, the case was. submitted to the court upon the petition and its exhibits, and judgment was rendered in favor of the plaintiff in the sum of $2,708, being the contract price for the sale of the said road roller, together with interest thereon. From such judgment plaintiff in error prosecutes error to this court.

The principal question presented both by the demurrer to the petition and the demurrer to the answer relates to the applicability of See. 5660 G. C. to contracts of this nature.

Sec. 5660 G-. C. is as follows:

‘ ‘ The commissioners of a county, the trustees of a township and the board of education of a school district, shall not enter into any contract, agreement or obligation involving the expenditure of money, or pass any resolution or order for the-appropriation or expenditure of money, unless the auditor or clerk thereof, respectively, first certifies that the money required for the payment of such obligation or appropriation is in the-treasury to the credit of the fund from which it is to be drawn, or has been levied and placed on the duplicate,' and in process of collection and not appropriated for any other purpose; money to be derived from lawfully authorized bonds sold and in process of delivery shall, for the purpose of this section, be deemed in the treasury and in the appropriate fund. Such certificate sháll be filed and forthwith recorded, and the sums so certified shall not thereafter be considered unappropriated until the county, township or board of education, is fully discharged from the contract, agreement or obligation, or as long as the order or resolution is in force.”

Plaintiff in error contends that the provisions of Sec. 5660 apply to the contract in question, and that the absence of an averment in the petition that the certificate provided for in such section has been made, renders the petition subject to demurrer.

This question is also raised by an express averment in the answer admitted by the demurrer thereto, to the effect that nc vueh certificate was made.

Defendant in error claims that such certificate is not necessary for the following reasons:

1. Because See. 3275 ,G. C. supersedes See. 5660 G-. C., and authorizes the contract in question.

2. Because the contract in question has been executed by the delivery, retention and use of the said road roller.

Sec. 3275 G. C. reads as follows-.

“The trustees may purchase such number of plows and scrapers and any other road building or road repairing machinery they deem necessary, for the use of the township, which shall be used exclusively for that purpose. The cost and expenses thereof shall be paid on the order of the trustees, from moneys in the township treasury not otherwise appropriated. They shall take possession of such plows, scrapers or machinery, or may authorize an employee of the township or other person, to take charge thereof who shall take care of and preserve them when not in use. ’ ’

The questions raised by the demurrer to the petition and the demurrer to the answer are both interesting and important.

In arriving at a conclusion we have been greatly aided by the exhaustive briefs which have been filed by counsel.

We shall not attempt to review or distinguish all of the authorities so cited, but will merely refer briefly to a few of the Ohio decisions bearing upon the questions involved.

Sec. 5660 G. C. is the outgrowth of what is eommonly known as the Burns law, which law was originally applicable only to municipal corporations.

The legislature in adopting Sec. 5660 G. C., evidently intended to apply the general provisions of the Burns law to the commissioners of counties, the trustees of townships and the boards of education of school districts, and this section would, therefore, be subject to the same general rules of construction as.have been applied to the Burns law, which, as above stated, applied only to municipal corporations.

The Burns law 'has been held to be remedial legislation, intended to restrict expenditures to funds actually available at the time a contract is made, for the purpose of preventing the-creation of floating indebtedness.

It was found by experience that the purpose of the Burns law could be best subserved by a strict enforcement thereof. • ■

Judge Burket in the case of Wellston v. Morgan, 65 Ohio St. 219, 229 [62 N. E. 127], says:

“A strict adherence to the provisions of the restrictive statutes of the state will be for the general good; and it devolves upon those who deal with public officers to see for themselves that the statutés have been complied with.”

Paragraphs three and four of the syllabus in the above case are as follows:

“á. To state a good cause of action against a municipality in matters ex contractu the petition must declare upon a contract, agreement, obligation or appropriation made and entered into according to statute. A petition on an account merely, or- quantum meruit, in such eases, is not sufficient.
“4. Persons dealing with officers of municipalities must ascertain for themselves and at their own peril that the provisions of the statutes applicable to the making of the contract, agreement, obligation or appropriation have been complied with. ’ ’

See also reasoning of Judge Burket in the case of Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406 [54 N. E. 372], at page 425.

Judge Bradbury in discussing such remedial statutes in the case of Lancaster v. Miller, 58 Ohio St. 558 [51 N. E. 52], says at page 575:

“The evils against which these restrictive statutes are directed are municipal extravagance and the negligence and indifference of municipal officers. They were designed for the protection of municipal taxpayers generally, as well as to guard against excessive special assessments against property to pay for local improvements. The mischief arising from municipal prodigality and the growth of municipal debts that attended thereon, called loudly for an efficient remedy. These restrictive statutes are the answer to that call. They embody that principle of sound public policy which seeks to enforce economy in the administration of public affairs. The judicial tribunals of the state should administer these laws so as to advance the purpose' thus sought to be accomplished. Contracts made in violation of these statutes should be held to impose no corporate liability. Persons who deal with municipal bodies for their own profit should be required at their peril to take notice of limitations upon the powers of those bodies' which these statutes impose.
‘ ‘ The corporation should not be estopped by the acts of its officers to set up these statutes in defense to contracts made in disregard of them. It would be idle to enact those statutes, and afterwards permit their practical abrogation by neglect or other misconduct of the officers of the municipality. If such effect should be given to such acts of municipal officers it would defeat the operation of the statutes. The strict enforcement of these provisions may occasionally cause instances of injustice; it is possible that municipal bodies may secure benefits under a contract thus declared void and refuse to make satisfaction. ’ ’

As stated above, we think the general rules of construction which have been applied to what is known as the Burns law should be applied in construing Sec. 5660.

See. 5660 G. G. is general in its terms and therefore applies to all contracts made by township trustees, unless such contracts are expressly or by fair inference excepted therefrom by some other statutory provision.

In the case of Comstock v. Nelsonville, 61 Ohio St. 288 [56 N. E. 15], the first paragraph of the syllabus is as follows:

“Unless a valid exception is made by some provision of statute, See. 2702 R. S., is applicable to so much of the cost and expense of a street improvement as is to be paid by the municipality out of funds arising from a levy on the general tax list.”

Does See. 3275 G. C. exempt the contract in question from the provisions of Sec. 5660 G. C. ?

If Sec. 3275 G. G. is construed as an enabling statute authorizing the township trustees to purchase road machinery and pay for the same out of moneys in the township treasury not otherwise appropriated, it is then clearlv not inconsistent with the restrictions'of See. 5660 G. C.

It is claimed, however, by defendant in error, that the' provisions of Sec. 3275, to the effect that the trustees may purchase such machinery and pay for the same from moneys in the township treasury not otherwise appropriated, are inconsistent with the provisions of Sec. 5660, and therefore evidence -an inten-non upon the part of the legislature to exempt contracts such as the one in question from the provisions of Sec. 5660 G-. C.

Sec. 5660 affects the validity of all contracts, and was intended to prevent the official bodies therein enumerated from contracting indebtedness in excess of the i'und^ then, on hand or in process of collection.

The mere power conferred in general terms to contract should not, we think, be construed as an exemption from the provisions of Sec. 5660 Gr. C., but should be construed in harmony with such section.

Various municipal statutes confer power, in general terms, upon different municipal officers to make contracts, but such statutes have not been held to be inconsistent with the limitations of the fhirns law, and we think the same construction should be placed upon Sec. 5660 Gr. C.

Tf there is any inconsistency between See. 3275 and Sec. 5660 Gr. C., then we think the provisions of Sec. 5660 should govern, as they represent the latest expression of the legislature upon the subject.

Section 5660 was re-enacted by the legislature as late as 3910, "whereas the section which now constitutes 3275 G-. C., was enacted in 1906.

While we have not thoroughly examined the statutes for exemptions from the provisions of Sec. 5660, yet we recall that Secs. 2-133, 2435-1 and 2436 expressly exempt certain contracts of the commissioners from the provisions of See. 5660'.

In respect to the contention of defendant in error that the contract in question has been executed, the doctrine is well settled in this state that such execution even if admitted is no protection where the suit is brought upon the contract itself. In the case of Comstock v. Nelsonville, supra, the third paragraph of the syllabus is as follows:

“"Whether the certificate required by said Sec. 2702 has been filed and recorded or not, must be ascertained by each contractor for himself at his peril. In the absence of such certificate, when required, no liability arises against the municipality, even though the contractor has fully performed his contract.”

The same principle is announced in Buchanan Bridge Co. v. Campbell, supra.

In view of the rule so announced it does not become important to consider the averment of the answer to the effect that the road roller in question is,now and has been sinee-1913 subject to the order of defendant in error.

The answer avers that at the time of entering into the contract there ivas only $29.38 in the hands of the treasurer of said township unappropriated, and'that taxes had been levied and were in process Of collection to the amount of $1,582.11.

The contract called for $2,400, with interest.

If See. 3275 G. C. is construed as a limitation, it would follow that the amount of the contract price was neither in the treasury unappropriated nor in process of collection, and the answer would, therefore, be good against a general demurrer.

The petition does not aver that the entire amount required to meet this contract was either in the treasury or in process of collection when the contract was entered into.

Commencing at the last paragraph of page 2 of the petition there is this averment:

“Prior to the 1st day of August, 1913, there had been taxes levied by the trustees of said township in and for the year .1913 which were thereafter collected, and there was, also, on said last-named date and since, in process of collection, moneys arising from taxes and from other sources, belonging to said township then in or thereafter came into said treasury to the credit of its several funds, not otherwise appropriated, and sufficient to pay plaintiff for said road roller.”

This averment of the petition not only refers to taxes levied prior to August 1, 1913, but also includes these since levied, and the averment must, therefore, be read as of the date of the filing of the petition, namely, May, 1915, and not as of the date August, 1913, when the contract was entered into.

We think the absence of a certificate of the clerk is fatal to the cause of action of the plaintiff below and that the demurrer to the petition should have been sustained.

We think the decision of the Supreme Court in the ease of State v. Frontier, 77 Ohio St. 7 [82 N. E. 518], which case defendant in error relies upon to some extent, is not in conflict, but in harmony, with the conclusions herein reached.

On page 18 the court clearly reaffirms the invalidity of a contract made in disregard of the statutes and merely holds that the court will leave the parties where it found them. In that case the prosecuting attorney attempted to recover the contract price from the bridge company. The court refused to grant any relief. In the present case defendant in error relies upon the contract, and upon the failure to show that the con- ■ tract was a valid one the court would be required to leave the parties where it finds them. 1

In view of the conclusions reached as to the necessity of the clerk’s certificate, we have not found it necessary to consider whether a contract made separately by the trustees, instead of at a meeting of the trustees, would be valid.

The judgment of the lower court both in sustaining the demurrer to the answer and in overruling the demurrer to the petition will be reversed-

Unless plaintiff below can amend its petition, it would follow that this court should render the judgment which the lower court ought to have rendered, namely, that the petition of plaintiff below be dismissed.

Judgment reversed.

Ferneding and Allread, JJ., concur.


text:
    INSURANCE — MUTUAL BENEFIT ASSOCIATIONS.
    [Muskingum (5th) Court of Appeals,
    November Term, 1916.]
    Shields, Powell and Houck, JJ.
    Mary A. Sherry v. Locomotive Engineers’ Mut. L. & Acc. Assn. et al.
    Proceeds of Mutual Benefit Policy Designating Wife as Beneficiary, Payable to Second Wife and not to Children of First Wife.
    Where insurance is taken in a benevolent organization, payable to the wife of the insured or his lawful heirs, and subsequent to the death of the said wife 'and the remarriage of the insured the said policy was taken up and two new policies issued in its •stead without any change with reference to the beneficiary, the proceeds of said policies become, at the death of the insured, the property of the second wife, and no part thereof is payable to the children of the first wife.
    [Syllabus by the court.]
    Error.

      E. F. O’Neal, for plaintiff in error.

      H. C. Pugh, for defendant in error.
   HOUCK, J.

This is a proceeding in error to reverse the judgment of the common pleas court of Muskingum county, Ohio. The parties hereto occupy the same position to each other as in the court below. The plaintiff, Mary A. Sherry, brought suit in the court below to recover on two insurance policies on the life of her husband, Patrick Sherry., The admitted facts in this case are as follows:

That on or about the first day of March, 1869, Patrick Sherry became a member of the defendant association; that at said time and by right of said membership there was issued to him a policy of life insurance in said defendant association in the sum of $3,000: that afterwards, on July 20, 1894, the said association took up the said certificate of membership and the said policy of life insurance theretofore issued to the said Patrick Sherry, and in its stead issued to the said Patrick Sherry two certificates of membership, or policies of insurance in their said association, each for the stun of $1,500. It is further agreed that Patrick Sherry died on or about October 24, 1914, and that at the time of his death all of the assessments due from him to said association by reason of said certificates of insurance and policies had been fully paid, and, further, that at the time of the death of the said Patrick Sherry he was in good standing in said association, and said policies of insurance were in full force. It is further agreed that at the time Patrick Sherry took out his policy in said association (in 1869) Mary McNally Sherry was the wife of the said Patrick Sherry, and continued to be. his wife until the date of her death on February 21, 1886. Thereafter, and before July 20, 1893, being the date that said original policy of insurance was taken up and the two new policies issued in place thereof, as above stated, Patrick Sherry married the plaintiff, Mary A. Sherry, who continued to be his wife until the date of his death. It is further agreed that six children were bora from the marriage between Patrick Sherry and his first wife, Mary McNally Sherry, and that no children were bora from the second marriage.

The defendant association filed an answer in the nature of an interpleader, in which it avers that it is ready to pay said sum to the lawful distributee or distributees under said policies, and will do so upon the order of the court. With reference to the beneficiaries thereunder each policy contains the following provision:

“All payments or benefits that may accrue or become due to the.heirs of the person insured, by virtue of this policy, will be payable to Mrs. Patrick Sherry, wife, or his lawful heirs.”

It will at once be observed that this clause is the governing factor to determine to whom the insurance money in question is to be paid, and this is to be determined from the plain meaning of the language used in said clause. It is urged by counsel for plaintiff in error that by reason of the death of Mary McNally Sherry, the first wife of Patrick Sherry, and the suDsequent marriage of Patrick Sherry and Mary A. Sherry, the plaintiff herein, and the issuing of ¡the policies in question to Patrick Sherry subsequent to the marriage between Patrick and the plaintiff, and the fact that the plaintiff was his wife' at the time of his death, she is entitled to all of the benefits aris- • ing under said policy of insurance, and that she is.the sole and : only beneficiary, and is lihe Mrs. Patrick Sherry, wife of the said Patrick Sherry, deceased, and is entitled as such to said insurance money in question.

It is contended by counsel for the sis children that the said Mary A. Sherry is entitled only, to her legal share therein as the surviving widow of the said Patrick Sherry, deceased, and that they are entitled to the residue thereof. '

In determining the rights of these parties we must rely wholly and entirely upon the language used in the. clause of the policies hereinbefore referred to. At the time of the death-of Patrick Sherry he had but one wife living, to-wit, the plaintiff in this ease. At the time of the execution^ and delivery of the policies in question he had but one wife living, the plaintiff herein. If he had intended to make any other person than his then wife, Mary A. Sherry, the sole beneficiary of said insurance policies, he certainly would have done so. It seems to us that in the light of all these facts, and being governed in the distribution of the fund in question, by the surroundings of the parties, which taken in connection with the plain meaning of the beneficiary clause in the policies, it seems to us there can be but one conclusion reached, and that is that Mary A. Sherry is entitled to all of the fund, and is the sole beneficiary of the two policies in question.

It is contended by counsel for defendants that at the time the policy was taken out, in 3869, being the original policy, Patrick Sherry by his choice made provision for and designated the,, beneficiary thereunder, and must naturally, if not necessarily, have had in mind the person who was then his wife. If this line of reasoning be the correct one, then why is it not proper to claim that when the two policies .in question were-issued, and the plaintiff in this ease was the wife of Patrick Sherry, it was his choice and intention, and of necessity he had in mind the person who was then his wife? It seems to us if we apply to the two policies in question this same reasoning - that is applied by counsel for defendants to tbe original policy we can arrive at but one conclusion, and that ,is that the plaintiff is entitled to the proceeds of the policies in question.

Judgment reversed, and judgment for plaintiff in error, the costs to be paid out of the fund and the residue to be paid to the plaintiff in error. Cause remanded to the Common pleas, court for execution.

Shields and Powell, JJ., concur.


author: CHITTENDEN, J.

text:
    ERROR — JURY—STREET RAILWAYS.
    [Lucas (6th) Court of Appeals,
    December 6, 1915.]
    Kinkade, Chittenden and Richards, JJ.
    Maumee Valley Rys. & L. Co. v. Kenneth Hanaway, etc.

      1. Street Railway Required to Exercise Greater Care towards Child of Immature Years Threatened With Danger.
    Where a child of immature years and incapable of realizing and appreciating the proximity of danger is threatened with injury by an electric car, the electric railway company, in order to discharge its duty of exercising ordinary care, , is required to use greater care than in a case where an adult is so threatened.
    2. “Near the Track”, Understood by Jury to Mean Close Proximity to the Track, not Indefinite.
    A charge of the court is to be read with reference to the facts in the case on trial, and the words “near the track” are not •indefinite where the jury could not have understood them to mean other than close proximity to the track.
    3. No Inference that Child of Tender Years Will Run in Front or Awhy from Car.
    With a child of very tender years there is no inference that it. will either run in front of a car or away from it, and a motorman should operate his car with knowledge that a child of that age .may do either, and it is his duty to use ordinary care to avoid injuring it.
    4. Special Findings Signed by Nine Jurors Received on Verdict Signed by Twelve.
    WHiére a general verdict is signed by twelve jurors, special findings of fact signed by nine jurors are properly received by the trial court.

      5. Misconduct Occurring During Trial Brought on Record by Bill of Exceptions not by Affidavits.
    Alleged misconduct occurring during the trial in the presence of the court should be brought upon the record by. bill of exceptions certified by the trial judge, and may not be shown by affidavit.
    fSyllabus by the court.]
    ERROR.

      Tracy, Chapman & Welles, for plaintiff in error.

      8. 8 Burtsfield and John L. Zimmerman, for defendant in. error.
   CHITTENDEN, J.

The plaintiff, in the common pleas court, recovered a verdict and judgment against the defendant in the sum of $10,000 because of personal injuries sustained by the plaintiff. The plaintiff, who sued by his next friend, was at the time of the accident a minor slightly under three years of age.

On or about June 16, 1914, he, with some other children,, was playing near the corner of Utah and Fassett streets in the city of Toledo. The defendant was operating an electric car upon the tracks of the Toledo Railways & L. Co. on Fassett street. At the time in question the ear stopped on Fassett street just west of the intersection of Utah street, for the purpose of taking on a passenger. After the car started, and at about the time it crossed the easterly side of Utah street, it is claimed that the plaintiff was struck by the ear and after being carried or dragged some distance the wheels ran over his left leg at about the ankle, so crushing the ankle and foot as to necessitate an amputation at about the shoe top.

It is claimed by the plaintiff that while the car was standing at the point where it stopped to take on a passenger the plaintiff, with some other children, started to go across Fassett street from the north side to the sputh side thereof, and that they were in plain view of the motorman and conductor, and that when the plaintiff was about sixty feet in front of the ear the motorman and conductor, without any notice or warning to the plaintiff who ivas then crossing Fassett street and about to cross-the railway tracks, carelessly and negligently started the car forward and that while the plaintiff was on the tracks of the railway company in front of the car and in plain view of the motorman and conductor operating the same, the car was so negligently and carelessly operated as to run over the plaintiff’s left foot and leg although there was ample time to stop the car before it struck the plaintiff. Evidence was introduced on the part of the plaintiff tending to prove these allegations.

Several claims of error are made in this court. It is claimed that the court erred in its charge to the jury upon the subject of the amount of care required of the defendant company and complaint is especially made as to the following language:

“A street railway company in the operation of its cars is required to exercise a much higher degree of care toward a child who, owing to its immature years, is incapable of realizing and appreciating the proximity of danger and the necessity of care and caution to avoid injury, than is required toward an adult whose age, knowledge and experience better enable him to look out for himself. A motorman operating a car on a street where he has reason to expect the presence of children must exercise a high degree of watchfulness and if he sees, or by the exercise of ordinary care could see a child of tender years on or near the track, he is not entitled to act on the assumption that such child will get off or stay off the track, but must at once use ordinary care to avoid injuring him, and if by the exercise of ordinary care he might have discovered the child in time to have avoided injuring him and fails to do so, the company is liable for the resulting injuries. ’ ’

Just previous to using the language above quoted the court had charged the jury that the plaintiff could only recover in case he proved by a preponderance of the evidence the negligence charged in the petition, and the court carefully defined the legal meaning of the term negligence. He had also defined .ordinary care at considerable length and with accuracy. Pie had charged the jury, in substance, that the amount of care that was to be exercised to comply with the definition of ordinary care varied according to the circumstances of particular cases. He had made use of the following language: “The court instructs you that if the necessity of using ordinary care is called into existence under circumstances of particular peril a greater amount of care is required than when the circumstances are less perilous.” Following immediately upon the discussion of this subject he used the language first above quoted. Construing the language first above referred to, in connection with what preceded it in the charge, it is evident that what the judge intended to charge the jury was that where a child of immature years and incapable of realizing and appreciating the proximity of danger was threatened with injury by an electric railway company, in such event the railway company, in order to discharge its duty of exercising ordinary care, was required to use greater care than in a case where an adult was so threatened. The language of the court in saying that an electric railway company “is required to exercise a much higher degree of care toward a child” was not an accurate statement. He should have said that an electric railway company, in the exercise of ordinary care under such circumstances, was required to use more care with reference to a child than toward an- adult. The charge, however, could not have misled the jury in view of all that had been said by the court upon the subject of the degree of care required of the defendant. We think that the charge states the law substantially as required under the authority of Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St. 238 [20 N. E. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596]. The court, on page 291, makes use of the following language:

“The almost universally accepted doctrine is, that the care to be observed to avoid injuries to children, is greater than that in respect to adults. That course of conduct, which would be ordinary care when applied to persons of mature judgment and discretion, might be gross, and even criminal negligence, toward children of tender years. The saíne discernment and foresight, in discovering defects and dangers, can not be reasonably expected of them, that older and experienced persons habitually employ; and therefore the greater precaution should be taken, where children are exposed to them. ’ ’

It is also claimed that the court erred in charging the jury that a motorman' operating a ear on a street where he has reason to expect the presence of children must exercise a high degree of watchfulness and if he sees or by the exercise of ordinary •care could see a child of tender years on or near the track,Jie is not entitled to act on the assumption that such chilsd will get off or stay off the track,-but must at once use ordinary care to avoid injuring him, and if by the exercise of ordinary care he might have discovered the child in time to avoid injuring him and fails to do so, the company is liable for the resulting injuries.” It is claimed that the words “near the track” are so indefinite as not to indicate any definite situation to the jury, and that the child might be said to be near the track if he were at any point in the street. Every charge must be read with reference to the facts in the case under consideration. It is evident that the jury could not have understood this term to mean anything other than that if the child was in close proximity to the track, and we think that the phrase was sufficiently definite in that respect.

This portion of the charge is said to be in conflict with a special instruction given before argument at the request of the defendant, being request number six, in which the jury were instructed that those engaged in the operation of the street ear were not required to assume that children on the streets would run suddenly into the path of such car and they were not required to so operate their ears as to be able to stop them instantly if a child should do so. We are unable to find that the general charge contradicts or modifies the special instruction. The special instruction was an abstract proposition of law and was certainly as-favorable to the defendant as it could have been made. The word children used therein covers a considerable rangp in age, and it is certainly true that the railway company is not required to stop its cars instantly if a child should suddenly and without warning run in front of the ear. With a child of the age of the plaintiff we think that the motorman is not to infer either that the child will run in front of the ear or run away from the ear. At such an age a child is likely to do either one of these things and a motorman should operate his car with the knowledge that children of that age are not appreciative of the dangers that are threatening them and that they are as likely to act ill-advisedly under such circumstances as otherwise. The jury were instructed that it was the duty of the motorman in ease of a child of such tender years being on or near tbe track, — that is, in close proximity to the track, — to at once use ordinary care to avoid injuring it. We think that the charge in this respect was a correct statement of the law.

There are some other criticisms made upon the general charge but what we have stated we think sufficiently covers the other objections presented.

The general verdict was signed by twelve jurors. The defendant requested a special finding of fact and the same was submitted to the jury and was answered by them, the answer being signed by nine only of the twelve jurors. The special finding of fact- was as follows:

“Did Kenneth Hanaway get on the street ear track in front of the car and in plain view of the motorman operating said car and so far ahead of the ear that the motorman, in the exercise of ordinary care, had time to stop the car before it ■struck him?” Answer: “Yes.”

The plaintiff 'in error contends that it was entitled to have this interrogatory answered by the unanimous vote of the jury, and that the court erred in accepting an answer signed by only nine of the twelve jurors. The plaintiff in error claims that an interrogatory of this character can only be answered by the unanimous action of the jury. Section 11455 G-. C. passed in pursuance of the constitutional amendment permitting such legislation, provides that in all civil actions a jury shall render a verdict upon the concurrence of three-fourths of their number. The answering of special interrogatories by the jury is covered by Sec. 11463. (x. C. which provides as follows: “When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon.” The verdict-and finding must be entered on the journal and filed with the clerk. The latter section does not by its terms require any given number of jurors to determine the question of fact, nor does it require the answering of the interrogatory unless the jury shall render a general verdict. The provision is that if a general verdict is rendered then the jury shall make a written finding upon the interrogatories. Thus, it will be seen that the general verdict and the interroga- ■ lories were placed upon tbe same basis and tbat only wben tbe 'general verdict was agreed upon were tbe special interrogatories to be determined. Wben the constitution and statute required the'unanimous vote of tbe jury to render a general verdict it was no doubt tbe law that the special interrogatories could only, be answered by unanimous Amte of tbe jury. It required tbe same number to answer the special interrogatories that was re- : quired to render tbe general verdict. Wben the constitution and statutes Avere so amended as to permit a verdict by tbe concurrence of three-fourths of tbe jury, it would seem to folloAv from a fair interpretation of Sec. 11463, that tbe special interrogatories which were to be answered in case a general verdict AAras returned might be answered by three-fourths of the jury. Clearly if the jury are entitled under the constitution and laws, as they are, to determine by a three-fourths vote, in a general verdict, all the issues involved, it must follow that they are entitled to determine by a three-fourths vote every particular ultimate fact submitted by .an interrogatory.

The answer to this question could not be prejudicial in any event because the interrogatory submitted, if not answered or if answered in the negative, would not necessarily require any different judgment. We think that the pleadings and the evidence did not make it necessary that the jury find that the plaintiff was on the street car track and in front of the car in order to establish a liability upon the part of the defendant.

Numerous exceptions were taken to the reception of evidence. Evidence vras admitted over the objection and exception of the defendant to the effect that after the plaintiff Avas taken to the hospital he Avas afflicted with, lockjaw. It is claimed that this was erroneous because the petition contained no allegation of such disease. The plaintiff in error contends that in the absence of pleading such a condition as a result of the injury, it could only be made competent by proof that it was a necessary or usual result of such an injury, or that it was a condition naturally to be- expected to follow from such injuries as he received. No damages are claimed by the plaintiff because of his suffering from lockjaw as a disease independent from the injuries received by him. It is alleged that the plaintiff was confined in the bospital for something like three months and suffered great pain. We think that it is competent under such an allegation to show all the facts and circumstances surrounding the treatment of the plaintiff, and his physical and mental condition resulting from the injury. It is not necessary to allege in the pleading the various symptoms and conditions obtaining during the time of his confinement as a result of the injury. Furthermore, we think that the evidence shows that tetanus is likely to result from an injury received in the manner that the plaintiff received this one. One of the physicians testified that tetanus is produced by a germ which is picked up usually from the dirt in the street that may come in contact with a raw wound and be absorbed. We find no error in receiving this evidence.

Testimony as to the distance within which a street car such as the one by which the plaintiff was injured could be stopped vas given by one whom the plaintiff in error claims was not qualified to testify on that subject. We find that this evidence, even if erroneously admitted, would not be prejudicial to the plaintiff in error.

The defendant sought to introduce the opinion of one of the physicians and a nurse as to whether, judging from the appearance of the plaintiff and his clothing just after the accident, the plaintiff had been dragged along the pavement. This evidence was excluded. We think this was not a subject for opinion evidence. The witnesses were permitted to testify to the appearance of the clothing and of the person of the plaintiff. The question as to whether or not the plaintiff was dragged or rolled along the pavement was an issue of some importance in the case and was properly left to the jury to be determined by them in view of all the evidence including that of the physicians and nurse and those who claimed to have seen the accident.

One witness for the plaintiff, it appears, had given the railway company a signed statement as to what she knew about the accident and upon cross-examination of this witness she identified the statement and counsel for the defendant sought to read the statement to the jury. A portion of the statement detailed a conversation said to have been had with a brother of the plaintiff on the day after the accident. Counsel for the plaintiff objected to this portion of the statement and the objection was sustained. Thereupon counsel for plaintiff withdrew the objection and the defendant was permitted to read the entire statement without objection. After it had been entirely read counsel for the plaintiff then moved that the portion consisting of hearsay evidence be ruled out and this motion was sustained and that portion of the statement was excluded. We disapprove of this practice. When counsel, with knovdedge of what the evidence will be, withdraws his objection and consents to have the evidence admitted, we think that he should, in the interest of proper practice, be then precluded from thereafter making an objection. We do not mean to say that where by an inadvertence or an apparent misunderstanding evidence is permitted to go to the jury that counsel should be precluded from thereafter objecting, but certainly when counsel, knowdng what the evidence will be when introduced, makes a formal objection and then withdraws the objection and permits the evidence to be introduced, he should not thereafter be permitted to recall his waiver. To hold otherwise would be to introduce confusion in the trial. We are unable to see, however, how the ruling of the ■court in this instance could prejudice the rights of the plaintiff in error. The excluded portion was the statement claimed to Dave been made to the witness by a brother of the plaintiff, the brother at the time being only four years old, to the effect that he had hold of his brother’s hand and was running across the street, and his brother slipped and fell under the car and that he ran home and told his mother. The motorman who was operating the car testified that he saw the plaintiff when he was about eighteen feet from the ear, running toward the car, and that he, the motorman, attempted immediately to stop the car. He testified that he was riot looking back but was looking ahead and that he saw no other children except the plaintiff. Therefore, the • evidence excluded contradicted the' testimony of the- motorman that he saw the plaintiff alone running toward the ear, and tended to corroborate the testimony of the witnesses D’avis and Webster who say that the motorman was not looking ahead but had his face turned toward his right shoulder looking backward into tbe ear, lor tbe reason that bad he been looking ahead be must have seen the older boy in front of tbe car as be ran across tbe street as was stated in tbe evidence excluded if that- be taken as true.

Misconduct upon tbe part of the plaintiff is charged, and it is claimed that such misconduct consisted in either tbe next friend of the plaintiff or his attorneys permitting tbe plaintiff to be upon the floor, immediately in front of tbe jury, during the argument of counsel for the plaintiff, walking upon one foot and one knee or upon both knees, and that such conduct.upon the part of the plaintiff, so acquiesced in by the next friend of the plaintiff and his counsel, unduly aroused the sympathies of the jury. This alleged misconduct is not made manifest by the oill of exceptions but was sought to be shown by affidavits of two jurors presented to the trial court upon the hearing of the motion for new trial, which affidavits are attached to the bill of exceptions and constitute all the evidence upon the subject presented to the trial judge. The affidavits contain nothing more than a recital of the fact that they saw the plaintiff move around as .above indicated. They do not undertake to state what, if any, effect such action upon the part of the plaintiff had upon them or the jury generally. It is, of course, apparent that affidavits •of jurors can not be received for the purpose of impeaching or explaining their own verdict. It does not appear in the record of the trial that there was such conduct as is set forth in these affidavits, and we hold that under the authority of State v. Young, 77 Ohio St. 529 [83 N. E. 898], the question here sought to be raised can not be properly brought into the record by affidavits as was attempted in this case.

Finally, it is claimed that the verdict is excessive and is not sustained by sufficient evidence. We are not prepared to say that the verdict is excessive in view of the suffering endured by the plaintiff and the fact that he will be deprived of his left foot during his entire lifetime. At the plaintiff’s age, three years, his expectancy of life, according to the Carlisle tables of mortality, was substantially fifty years. At no age is the expectancy of life materially greater than at the age of three years. This is almost the maximum period of expectancy.-

The plaintiff presented three witnesses who claimed to have seen the accident. Two of these were employes of the Big Four Jty., one being an engineer and the other his fireman. They were men of experience and appeared to be intelligent and fair witnesses and their evidence is wholly unimpeaehéd. Both testify that when approximately, two hundred feet in front of this car they saw it strike the child and that they immediately ran toward the car, one of them swinging his cap to indicate as a railroad man wrould, a stop signal, and both yelling to attract the attention of the motorman, and both testify that the motorman was looking back toward the rear of the car and not forward, and that they were unable to attract his attention until they were nearly to the car; that during this time the child was under the fender, either holding on or being dragged by reason of having its clothing caught, and that it was screaming and struggling apparently to escape from its position; that when they had almost reached the car the child had been released from its position and the wheels of the forward truck ran over its left foot. Another witness, a girl about seventeen years of age, in many respects corroborates the testimony of these two witnesses. The only witness on behalf of the railway company who was in position to know much about the facts was the motorman himself whose evidence is contradictory to that of the three witnesses just mentioned- Tt is evident that the jury gave little credit to the testimony of the motorman.

We think that the case was fairly tried and that the rights of the plaintiff in error were at all times fully protected. The charge of the court, both before and after argument, was certainly as -favorable to 'the company as it had the right to expect. A careful examination of the record discloses that there was no error committed during the trial sufficiently prejudicial to justify a reversal of the judgment, and that the judgment accomplished substantial justice.

Judgment affirmed.

Richards and Kinkade, JJ., concur.