text:
    FALSE ANSWERS IN AN APPLICATION FOR. INSURANCE.
    [Circuit Court of Lucas County.]
    North American Accident Insurance Co. v. Franklin D. Sickles.
    Decided, July 1, 1902.

      Insurance — Section 3625, Relating to False Answers in Application, Construed — What the Company Must Establish to Avoid the Policy —Authority Constituting a Solicitor an Agent.

    1. Under the saving provisions of Section 3625, an insurance company in order to avoid a policy, on the ground of false answers in the application, must establish clearly that the answers made by the insured were willfully false; that they were fraudulently made; that they were material; that they induced the company to issue the policy; that but for such answers the policy would not have been issued; and, that the agent of the company had no knowledge of the falsity or fraud of such answers.
    2. Where a sub-agent, appointed by a general agent whose territory covers several counties, and who has authority to appoint sub-agents, solicits insurance, and fills in the application for a policy in the presence of the applicant, after, a conversation with him disclosing all the facts bearing upon the statements to be made in the application, and the statements written in the application are the suggestion of said sub-agent, and there is reason to believe the facts were also all made known to the general agent, the knowledge of such sub-agent as to the extent the statements were false is the knowledge of the company.
    Parker, J.; Haynes, J., and Hull, J., concur.
    Heard on error.
   This suit was begun by Franklin D. Sickles against the North American Accident Insurance Company on a policy of insurance on account of an accident which he averred had happened to him resulting in an injury, for and on account of which he claimed something less than $300. His action was commenced in the city and justice court of this city. He obtained judgment there against the insurance company, and the company appealed the case to the court of common pleas, where it was tried to a jury, resulting in a verdict in favor of the plaintiff for $237.72. Motion for a new trial was filed ánd overruled, and judgment was entered upon the verdict, and the insurance company prosecutes error to this court to reverse that judgment.

It is averred in the petition that on June 27, 1900, the plaintiff was insured by this insurance company against accident and against bodily injury which the plaintiff might receive when caused solely by external, violent and accidental means; that the company agreed to pay him the sum of fifty dollars per week, not exceeding 104 weeks consecutively, where the injury which he might receive wholly and continuously disabled him from transacting any and every kind of business; that he paid the insurance premium required; that on September 6, 1901, while riding as a passenger upon a public conveyance, to-wit, a steamboat, on Lake Erie, he received bodily injuries, caused solely by external, violent and accidental means, in that he accidently fell in said boat and received such injuries as that immediately following the receipt thereof he was wholly and continuously disabled from transacting any and every kind of business up to and including October 5, 1900, to-wit, twenty-nine days, and was partially disabled from performing labor and transacting business from October 5 to October 9, to-wit, four days. The policy seems to have made provision for the payment of a smaller amount for the period that he was only partially disabled. The total amount of his claim was $221.34 and interest.

An answer was filed, and afterwards an amended answer, in which amended answer is averred that, “previous to effecting said insurance, viz., on or about the twenty-seventh day of June, 1900, the said Franklin D. Sickles stated in an application upon which said policy was issued and which was the basis of and a part of the contract between this defendant and the said Franklin D. Sickles, amongst other things, the following: ‘I am not carrying nor have I applied for any other accident insurance except the amount herein written.’ Also the following: ‘No accident insurance company or association ever rejected my application, canceled or requested the surrender of my certificate or policy, or declined to renew the same, except as herein written.’ And also the following: ‘I have never had paralysis, fits of any kind of brain disorder, diabetes, hernia, varicose veins or any bodily or mental infirmity, injuries or wounds, or suffered the loss of a limb or an eye, nor has any application for life insurance ever been rejected, postponed or not acted upon, except as herein written. ’ ’ ’ And the defendant says ‘ ‘ That said application contains no other statements concerning the aforesaid subjects therein by the said Franklin D. Sickles mentioned as aforesaid.” And that “the plaintiff had been afflicted with paralysis, vertigo and other serious bodily infirmities and injuries, caused bj a previous accident to him; that plaintiff was carrying other accident insurance and that he had been refused further insurance by other insurance companies to-wit, The United States Casualty Co. of New York city; that the aforesaid statements made by plaintiff in said application were willfully false and fraudulently made, were material to said risk, and induced said company to issue said policy, and that but for said statements said policy would not have been issued, and that neither said company nor its agents had knowledge of the falsity or fraud of said statements at or before the delivery of said policy. ’ ’

These averments were denied by a reply, and upon these issues the parties went to trial.

It appeared upon the trial that this insurance was solicited by a Miss Dittenhaver, who claimed that she was representing the company, and that she brought to the plaintiff below the blank application and sat down with him to fill it out, and that a part of the writing in the application, or the most of it — and especially the parts relied upon here as a defense — were written by her after some discussion of the questions and the proper answers which would be made to the statements appearing in the application. The application is in somewhat peculiar form, perhaps not unusual — it is not in the form of questions and answers, but is rather in the form of affirmative statements, with blanks and provisions for exceptional or explanatory statements, the design apparently being that if there are no exceptional or explanatory statements required, nothing shall be written except the signature of the applicant for insurance. But when these persons sat down to make it out, to these affirmative statements they have added, where perhaps it was not necessary, certain negative and affirmative answers, as if the statements were rather questions than affirmative statements.

Those that are especially relied upon and discussed here are statements Nos. 10 and 15 in this application. No. 10 is': “I am not carrying nor have I applied for any other accident insurance, except amount herein written.” That is printed in the application, and at-the end of it is written the word “No.” No. 15 reads: “I have never had paralysis, fits of any kind, or brain disorder, diabetes, hernia, varicose veins, or any bodily or mental infirmity, injuries or wounds, or suffered the loss of a limb or eye, nor has any application for life insurance ever been rejected, postponed or not acted upon, except as hereinafter written.” And written below that is the word “No.” The signature is that of the plaintiff, Franklin D. Sickles. It appears from the evidence that at the time this application was made out (about the twenty-fifth or twenty-seventh of June, it bears date the twenty-fifth) Dr. Sickles had a policy of like character in force with the United States Casualty Company, but that the policy would expire by limitaton upon the first day of July or the thirtieth day of June of that year. It appears that he stated this fact and that it was well understood by Miss Dittenhaver, who was assisting in the making out of this application, and who had solicited the insurance of the doctor. But it also appears that it was understood and contemplated between them that the new policy, that is to say the policy being applied for, would not take effect until after the expiration of the policy in the United States Casualty Company, and that this application was being made out in anticipation of the other policy expiring by limitation within a few days. Though this policy was in fact dated the same as the application, that was not according to the understanding or the contemplated action of the parties. The intention of the parties was to have one policy begin at the expiration of the other; the policy, however, was not delivered to the insured until the expiration of the policy in the United States Casualty Company. It also appears that during the period that the doctor was insured in the United States Casualty Company he received an injury through an accident, and that on account of this injury he received $137 by way of indemnity from the United States Casualty Company. This fact was not concealed from Miss Dittenhaver — she knew all about it — she and the doctor talked about it, and the character of the injury that the doctor sustained upon that occasion appears to have been fully explained by the doctor to Miss Dittenhaver. She so testifies, and the doctor so testifies, and that is not denied; and in this application this appears under item 14: .

“I have never at any time received indemnity for disability or other loss, except as herein written. ’ ’

And “No” is written at the end of that; and also this: “$137 in casualty.”

Now there was some evidence introduced on behalf of the insurance company to show that the injury which the doctor received in this accident while he was insured with the casualty company was of the character of paralysis; that he fell, and as a result of the fall his lower limbs were affected by numbness and loss of motion and with a loss of control over them temporarily, and some of the physicians who testified state that this was in their opinion temporary paralysis; but there is no testilike paralysis at the time he applied for this insurance in the mony tending to show that the doctor was afflicted with anything North American Accident Insurance Company, but the testimony that he had fully recovered from his former injury stands practically undisputed. As to whether the injury that he had received on this former occasion resulted in partial or temporary paralysis, there is some dispute and some doubt; some of the testimony tending to show that the result was simply a temporary numbness, not in that degree that could be fairly characterized as “paralysis.” Now it is contended by the insurance company that since the facts which I have said were stated to Miss Dittenhaver — all these facts of the fall which resulted in numbness and disability, etc., were not set forth in this written application — therefore the insurance policy was null and void ab initio, and that they have made out their defense. And that contention is based somewhat upon the provisions of this application and the policy with respect to the character of these statements and representations and the effect that they shall have upon the insurance. I read from the application:

“I hereby apply for insurance in the North American Accident Insurance Company, to be based upon the following, viz.: Classification of my occupation; the statement of facts herein, ■whether written or printed, in response to interrogatories or otherwise, all of which I warrant to be true and complete, ’ ’ etc.

And further, after the answers and before the signature, is this:

“This application, with its statements, stipulations and warranties, together with the premium paid by me, shall be the basis of and a part of the contract between the company and myself. I understand the classification of risks, and agree that for any injury, fatal or otherwise, received in any occupation, risk or exposure classed in the company’s manual as more hazardous than the class named in the policy to be issued hereon, I, or my beneficiary shall be entitled to only such amount as the premium paid will purchase at the rate fixed for such increased hazard; I agree that the company shall not be bound by any knowledge of or statement made to or by any solicitor, unless written hereon; that I will notify the secretary should I hereafter procure additional accident insurance,” etc.

It is contended by the insurance company that Miss Dittenhaver was not the agent of the company, but that even if she were the agent of the company, by reason of this stipulation of warranty and by reason of the further stipulations and agreements that the company was not to be bound by any knowledge of or statements to or by any solicitor, unless written herein; that they are not bound or affected by the oral statements of the doctor to Miss Dittenhaver, which were not written in the application. The policy contains this stipulation or agreement:

“In consideration of the warranties, stipulations and agreements contained in the application for this policy, which application is made a material part hereof, and of the premium of six dollars, does hereby insure, ’ ’ etc.

So that it will be seen that the application is made part of the policy as fully as the parties by their contract could make it a part.

It is contended on behalf of the defendant in error, however, that Section 3625, Revised Statutes, has an effect upon this contract ; that the statute nullifies the stipulation that these answers shall be regarded as warranties and that the company is not to be bound by any knowledge of statements made to or by any solicitor unless written upon the application. Before this section was made a part of the law, the case of Insurance Co. v. Pyle, 44 Ohio St., 19, was considered and decided by our Supreme Court, and it was held as follows:

“The provisions of a life insurance policy are construed and applied like the terms of any other contract, and such provisions may render the policy void ab initio, by the terms of the same and the failure of warranty.
“When a life policy is issued and accepted upon the expressed condition that the answers and statements of the application are warranted true in all respects, and that if the policy be obtained by any untrue answers or statement, or by any fraud, misrepresentation, or concealment, ‘the policy shall be absolutely null and void;’ and, as to matters material to the risk, some of the answers and statements are untrue in fact, though made without actual fraud and under an innocent misapprehension of the purport of the questions and answers, no contract of insurance is thereby made, and the policy does not attach, but it is void ab initio.”

Subsequently this statute was passed, which provides as follows:

“No answer to any interrogatory made by an applicant, in his or her application for a policy, shall bar the right to recover upon any policy issued upon such application, or to be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer is willfully false and was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and moreover, that the agent or company had no knowledge of the falsity or fraud of such answer.”

It is contended, however, by the insurance company that this section does not apply where the parties expressly stipulate, as they have done in this case, that the answers are to be regarded as warranties and that the company shall not be bound by any knowledge of the statements made to or by the solicitors, unless written upon the application, but that it is intended to apply to cases where the contract is silent upon this subject.

In the case of John Hancock L. Ins. Co. v. Warren, 59 Ohio St., 45, it is held:

“Section 3625, Revised Statutes, is a valid constitutional enactment; and to constitute a defense to a policy of insurance by reason of false answers to questions in the application, it must be clearly proven that the answers to such questions were willfully false and were fraudulently made; that the same were material, and induced the company to issue the policy, and that but for such answers the policy would not have been issued; and that neither the company nor its agents had knowledge of the falsity or fraud of such answers at and before the delivery of the policy. ’ ’

"Which seems to amount to saying that it is a valid constitutional enactment, and means what it says, for this syllabus is practically a transcript of the statute. And we have this by the court, upon page 53:

“Section 3625 was in force at the time this policy of insurance was issued, and therefore the legal effect is the same as if the section was copied into and made a part of the policy.”

And the same may be said, therefore, of the ease at bar, to-wit: Section 3625 being in force at the time this application was written and at the time this policy was written and issued, it must be considered to have the same legal effect as if it was copied into and made a part of the policy. The court further says, on the same page:

“The case of Insurance Co. v. Pyle, 44 Ohio St., 19, was decided before this section was enacted, and therefore can not control' the matter. This section was passed for the purpose of abrogating the rule laid down in that case.”

Now it seems to us that the rule for which counsel for the insurance company is contending here is substantially and practically the rule laid down in the case of Insurance Co. v. Pyle, supra, and that it is a rule which the Supreme Court says has been abrogated, purposely, by Section 3625, Revised Statutes, and we think what was said by the Supreme Court in the case of Insurance Co. v. Leslie, 47 Ohio St., 409, 414, with respect to Section 3643, Revised Statutes, is applicable to life insurance companies and may be very properly said of this statute, viz.:

“The foregoing sections of the statute being in force when it [the policy] was issued, they entered into, and became part of the contract of insurance, fixing the measure of the obligation created by it, and controlling its construction and operation. ’ ’

And the following from page 417:

‘ ‘ The statute can not, we think, be treated as conferring upon the assured a mere personal privilege which may be waived or qualified by agreement. It has a broader scope. It moulds the obligation of the contract into conformity with its provisions, and establishes the rule and measure of the insurer’s liability. Terms and conditions embraced in the policy inconsistent with the provisions of the statute are subordinate to it and must give way.”

It is true, as pointed out by counsel, that in this case of Hancock L. Ins. Co. v. Warren, supra, it was said by the court that the insurance company failed to allege that the answers to the questions were material, and without such allegation the answer failed to state a ground of defense, and it matters not how false or how fraudulent such answers may be, if .they are not material, they furnish no ground for defense to the company issuing the policy. But, while this is said, the decision does not appear to be based upon that, and the law of the case, as we understand it, is what we find stated in the syllabus, which I have read. The court point out that they had not made a complete answer; that the answer perhaps is subject to demurrer — does not state a complete defense — yet the decision is not based upon that; and we can not see that if that matter had been stated in the answer it could in any way have affected or modified the statement of the law as given in the syllabus.

We hold, therefore, that it devolved upon the defendant to establish clearly that these answers made by the plaintiff were willfully false; that they were fraudulently made; that they were material; that they induced the company to issue the policy, and that but for such answers the policy would not have been issued, and, moreover, that the agent of the company had no knowledge of the falsity or fraud of such answers. We fail to find anything in this record that satisfies us, or that we think should satisfy any trier of the facts, that any of these answers or any of the omissions or statements by the way of explanation were fraudulently made or fraudulently omitted. The conduct of the insured in this transaction appears to us, from the record, to have been entirely fairminded so far as we can see, and therefore we think that under the statute the mere omission of statements or a mere error in statements could not affect the validity of the policy; that the charge of the court upon this subject was correct; that the court was right in refusing to charge the several requests numbered 3, 4, 5 and 6 submitted on behalf of the insurance company.

We think, too, from a careful reading of this record (and I shall not stop to discuss the testimony or read it), that the jury was warranted in finding that Miss Dittenhaver was an agent of the insurance company; that William L. Hoyt, the general agent residing here — the general agent for Ottawa, Fulton, Henry, Sandusky and Lucas counties, had authority to appoint sub-agents, and those sub-agents, acting under his direction and supervision in soliciting insurance, represented the insurance company, and that to that state of facts the law as laid down in Insurance Co. v. Williams, 39 Ohio St., 584, is applicable, to-wit:

“A soliciting agent, procuring for an insurance company risks and applications on which policies are issued, who fills up the application, is, in so doing, the agent of the company and not or the insured; and if the agent make a mistake in wrongly stating facts which were correctly given him by the insured in preparing the application, the company is bound by and responsible for such mistake. ’ ’

And we think that this last clause of Section 3625, Revised Statutes, to the effect that the mistakes, errors or even fraudulent statements in the application shall not vitiate the insurance if the agent or company had knowledge of the falsity or fraud, of such acts, is applicable. The charge of the court upon that subject appears at page 44 of the record, and has our approval. It is as follows:

“There has been some discussion as to whether the lady who obtained this application from the plaintiff was an agent of the company within the meaning of this statute. On that subject I have this to say to you: If Mr. Hoyt, the district manager of this company here in Toledo, authorized her to obtain applications for policies, and the applications so obtained by her were received by the manager and forwarded to the company, and policies were issued thereon by the company, then she was the agent of the company in taking such applications, and any knowledge on her part as to the falsity of the statements in the application, if there was such falsity, would be regarded as knowledge of the company. If either of these statements was false and fraudulently made, and it is not clearly proved that neither the company nor the agent knew that it was false or fraudulent, then the defense is not made out. But if each of the facts mentioned in the statute is clearly proved then the defense is made out, and the plaintiff is not entitled to recover.”

Chittenden & Chittenden, for plaintiff in error.

Orville 8. Brumbach, for defendant in error.

And we think the evidence in this case clearly establishes a state of facts which required the jury to give an affirmative answer to the proposition embodied in this charge, to-wit, that she had such authority and did exercise such function and was so recognized by Mr. Hoyt and the company as that she became the agent of the company.

Now, this is perhaps all that is necessary to be said to dispose of the questions raised here by the plaintiff in error, and yet we make this further remark upon the record: That we think from the evidence the jury was fairly justified in finding — whether they did so find or not, of course we can not tell, because there was no special verdict — but they were fairly justified in finding that these facts with respect to the policy existing at the time this application was made, and with respect to the injury which the doctor had received and the compensation he had received on account of that injury, and the effects of the injury, were made known to Mr. Hoyt before this policy was delivered. "We think if the ease were to rest upon that issue that it is fairly sustained by the insured, that the burden being upon the insurance company, it has failed to establish that these facts were not made known to Mr. Hoyt before the policy was delivered.

Upon the whole, it seems to us that this verdict was right and that no error occurred upon the trial of the case prejudicial to the plaintiff in error, and that the judgment should be affirmed, and it is, therefore, affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ALIMONY.
    [Circuit Court of Muskingum County.]
    William S. Lemert v. Amelia Lemert et al.
    Decided, October Term, 1903.

      Alimony — Judgment for — Not Barred by a Discharge in Bankruptcy-Does not Become Dormant from Failure to Cause Execution to Issue — Collection of, Can not be Defeated by Injunction.

    A judgment or lien for alimony is a continuing and subsisting claim against tbe husband; it does not become dormant, is not affected by proceedings in bankruptcy, and injunction will not lie to prevent its enforcement.
    McCarty, J.; Voorhees, J., and Donaiiue, J., concur.
   The case of William Lemert against Amelia Lemert et al is an action which came into this court on appeal from the court of common pleas. The action was commenced in that eourt for an injunction to prevent, by restraint or otherwise, the collection of a judgment for alimony granted some time ago by the Franklin County Common Pleas Court. In 1899, a suit was brought in Franklin county by Amelia Lemert against William S. Lemert for divorce and alimony. In that proceeding the divorce was granted, and alimony was allowed in the gross sum of one thousand dollars. Subsequently, and since the passage of what is called the bankruptcy law of 1898, an action was commenced by William S. Lemert in the federal district eourt, praying for a discharge in bankruptcy, and such proceedings were had in that court and under that petition and application for discharge, that he was, subsequently to that time, discharged in bankruptcy, and received a certificate in the ordinary form discharging him from all liability from debts. It will be remembered that the divorce and alimony proceedings was commenced and determined in the Cohrt of Common Pleas of Franklin County long before the proceeding for the discharge in bankruptcy took place. Two serious and important questions here arise, (1) as to whether that claim for alimony was provable in the bankruptcy proceeding, and (2) as to whether that claim for alimony did not become dormant by reason of the lapse of time from the time judgment was obtained until the proceedings were commenced for its enforcement and execution.

It is said that in the proceeding in bankruptcy a list of claims and debts was filed by Mr. Lemert, and when the time came for hearing and passing upon those claims and debts he was finally discharged, and was, therefore, relieved from the burden of paying them, or any part of them.

In 1898 this bankruptcy law was passed, since which time an adjudication has been had upon this identical question in the Supreme Court of the United States, and is reported in Auduban v. Shufeldt, 181 U. S., 575. The syllibi of the case and opinion delivered by Mr. Justice Gray are as follows:

“Neither alimony in arrear at the time of adjudication in bankruptcy nor alimony accruing subsequently thereto is a provable debt in the sense of the bankruptcy act of 1898, or barred by a discharge.”

On page 579 in the opinion, a case is cited with approval, decided in 1900, Barclay v. Barclay, 184 Ill., 375 [56 N. E. Rep. 636], and in that case “it was adjudged by the Supreme Court of Illinois that alimony could not be regarded as a debt owing from husband to wife which might be discharged by an order in bankruptcy, whether the alimony accrued before or after the proceedings in bankruptcy, and the court said:' ‘The liability to pay alimony is not founded upon a contract, but is a penalty imposed for a failure to perform a duty. It is not to be enforced by an action at law in the state where the decree is entered, but is to be enforced by such proceedings as the chancellor may determine and adopt for its enforcement. It may be enforced by imprisonment for contempt, without violating the constitutional provisions prohibiting imprisonment for debt. The decree for alimony may be changed from time to time by the chancellor, and there may be such circumstances as would authorize the chancellor to even change the amount to be paid by the husband, where he is in arrears in payments required under the decree. Hence such alimony can not be regarded as a debt owing from the husband to the wife, and, not being so, can not be discharged by an order in the bankruptcy court.’ ”

It is contended in argument here that the district court of the southern district of Ohio passed upon the jurisdiction and determined that this was a provable claim, from which the defendant was subsequently discharged by the certificate in bankruptcy. We think that the Supreme Court of the United States, having this identical question before it, determined that it was not a provable claim, and if it was not a provable claim the adjudication of the district court would be of no effect. The decision of the Supreme Court of the United States is, in substance, that the statute providing for bankruptcy proceedings, the filing of claims, and adjudication upon them, does not require, and does not allow, the proof of claims for alimony.

We are aware that some portions of the decision in the case of Conrad v. Everich, 50 Ohio St., 476, have been criticised by the Supreme Court of Ohio, but not the portion I here read:

“It is contended in argument that alimony is not a debt, and if not, that it is difficult to see how it is a lien unless expressly made so by the court. But, in Lockwood v. Krum, 34 Ohio St., 1, it is well said by Boyton, J., in delivering the opinion of the court: ‘The claim for alimony rests on the common law obligation of the husband to support his wife in a manner suitable to his condition and station in life during the existence of the marriage relation. And this obligation is as binding after the commission by the husband of a marital offense entitling the wife to divorce, as before. In respect to such obligations, she may well be held to be a creditor of the husband. ’ In Chase v. Chase, 105 Mass., 385, it was held that a judgment for alimony in the case of a divorce a vinculo, or from bed and board, creates a debt of record in favor of the wife, and that she is entitled, as a creditor, to impeach a conveyance made by him with intent to defraud her. It is said by the Supreme Court of the United States in Barber v. Barber, 62 U. S., 582, 595, that when the court having jurisdiction of her suit allows the wife from her husband’s means, by way of alimony, a suitable maintenance and support, ‘it becomes a judicial debt or record against the husband, and is as much a debt of record, until the decree has been recalled, as any other judgment for money is. ’ ”

And it is the duty of the husband to provide proper maintenance and support for his wife, before and after the decree of divorce.

A. J. Andrews, for plaintiff.

F. F. D. Albery, for defendant.

We think the authorities conclusively determine (1) That this was not a provable debt; (2) That the court did not have jurisdiction in the matter to determine that it was so, and thereby undertake to discharge the plaintiff in this action from that obligation.

As to whether or not the judgment became dormant. An adjudication of alimony by a court of common pleas is, in a sense, a judgment, to the enforcement of which the parties are entitled to execution and proceedings in aid thereof. A claim for alimony — while it is a judgment, the fixed amount of which is to be paid by the husband out of his property for the support of the wife, rests not only upon the adjudication of the court fixing that amount, but upon the higher obligation of the common law liability of a husband to support his wife, and the authorities go so far as to say that it is a continuing obligation which exists not only at the time of the judgment, but continues afterward.

We are of the opinion that this judgment or lien is a continuing, subsisting claim against the husband; that it has not become dormant, and is not affected by the proceedings in bankruptcy; and that this petition for injunction, the object and prayer of which was to restrain and prevent the enforcement of the claim for alimony, should be dismissed.


text:
    NEW MUNICIPAL CODE — POLICEMEN AND FIREMEN.
    [Montgomery County Circuit Court.]
    The State of Ohio, on the Relation of Charles A. Snyder, as Mayor of the City of Dayton, Ohio, v. Charles S. Hall and Edward G. Durst, as Directors of Public Safety, Constituting the Board of Public Safety of the City of Dayton, Ohio.
    Decided, January 2, 1904.

      Municipal Code — Provision Regarding Policemen and Firemen — Forbidding Removal or Reduction in Ranh or Pay — Was Providing for an Emergency — Not an Exercise of the Power of the Appointment —And Not in Contravention of the Constitution.

    1. The provision of. Section 167 of the New Municipal Code (96 O. L., 20) that “no officer, secretary, clerk, sergeant, patrolman, fireman or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect, shall be removed or reduced in rank or pay except in accordance with the provision of this act,” is not in contravention of Section 27, Article II, of the Constitution inhibiting the exercise of the appointing power by the General Assembly.
    2. The New Municipal Code was enacted upon the assumption, based upon the decisions of the Supreme Court respecting special legislation, that the acts under which our municipalities were organized were invalid, and in order that as little hardship and inconvenience as possible might result from reorganization, the General Assembly provided that the officers and employes of the police and fire departments under the new code should be appointed from those serving in the departments at the time the new code took effect. It was providing for an emergency, not exercising the power of appointment.
    Summers, J.; Sullivan, J., and Wilson, J., concur.
   This is a proceeding in mandamus. The petition is as follows:

“Charles Snyder, relator herein, states that he is the legally elected, qualified and acting mayor of the city of Dayton, Montgomery county, Ohio, in which capacity he brings this suit in the name of the state. The defendants, Charles S. Hall and Edward G. Durst, were duly appointed directors of public safety on the--day of May, A. D. 1903, the city council of said city having fixed the number of directors for said city at two by ordinance duly enacted, and said defendants have entered upon their office as such directors, and now constitute an organized and acting board of public safety in said city, in which capacity they are made defendants. Said city contains over eighty thousand inhabitants.
“Prior to the enactment providing for the organization of cities and villages, passed October 22, 1902, the police force of the city of Dayton was organized and operated under the act of March 8, 1887, providing for the establishment of a nonpartisan police in the cities of the state of the second grade of the second class, and the subsequent amendments thereto. The city of Dayton was then, under the existing classification of cities, a city of the second grade, second class, and remained in such class as the only city of that class and grade until the passage of the law of October 22, 1902, which repealed all laws providing for the organization of such cities, including the law of March 8, 1887, and all the amendments thereto. By an amendment to said law of March 8, 1887, passed March 17, 1892, to provide for the more efficient government of cities of the second grade, second class, four police directors were put in control of the department of police instead of four police commissioners, in whom this control was put by the law of 1887. Such police directors were appointed by the tax commission provided for such cities by the act of March 17, 1892, and the office of police commissioner was abolished.
“The law of March 8, 1887, created an office called superintendent of police, who was to be appointed by the said board of police commissioners, as provided therein, and later by the board of police directors, as provided by the amendment of March 17, 1892. In both laws there was provision for the appointment, in a similar manner, of a captain of police, with other subordinates in the department.
“Under the provisions of the law of March 8, 1887, as amended, the board of police directors of the city appointed John C. Whitaker, Superintendent of Police on the 21st day of February, A. D. 1901, for the term of one year. At the expiration of said year, about the 26th day of February, 1902, the said board re-appointed said Whitaker to the same position, the term not being designated but left indefinite. Under such appointment the said Whitaker was duly qualified and entered into the said office and upon the performance of the duties and obligations annexed thereto, and continuously acted as such superintendent of police until the law of October 22, 1902, above referred to, took effect, when the said office was abolished, and all the laws providing for the government of cities of the second grade, second class, were repealed or superseded, including all the laws above referred to, except said law of October 22, 1902.
“After said law of October 22, 1902, went into effect, the city council of the city of Dayton, Ohio, to-wit, on the-day of May, 1903, duly passed an ordinance for the organization of a police force of the city of Dayton, in accordance with its provisions. In such ordinance there was provision for a chief of police at a salary of $2,500 a year, the previous salary of the superintendent of police having been the sum of $2,500 a year; and provision for one captain of police at a salary of $1,200 a year, and other subordinates, such as detectives, sergeants, patrolmen, etc. There was no provision in said ordinance, or any other ordinance, making the chief of police the successor in any way of the superintendent of police, nor vesting in him any of the powers of such superintendent, nor submitting him to any of his obligations, nor in any way defining the duties of such chief of police; and while the duties devolved upon the chief of police under the 'general provisions of the law of October 22, 1902, were and are, to some extent, similar to those imposed upon the superintendent of police by the former statute referred to, yet the powers and duties were not the same, and the offices were different offices, as an inspection of the statutes will show.
“Notwithstanding all of the above facts, the said Whitaker, after the law of October 22, 1902, went into effect, entered into and upon the office of chief of police, performing its duties, and assuming its obligations, and he has continuously acted as such chief, in said office up to the present time, with the exception of a brief period during which he did not so act, claiming to be such chief. He was not appointed to said position by the mayor of the city, the relator herein, nor by any authority in the city of Dayton. The said Whitaker has taken no steps to bring himself within the classified service of the said department of public safety, and has submitted to no examination.
“The relator avers, upon the advice of his counsel, that the law in force at the date of the appointment of Whitaker, as stated, was unconstitutional and void; that said police directors were not, in law, officers of the city of Dayton; that the law. creating the office of superintendent of police was not a valid law and did not establish such office, and that in right there was no such office or officer as superintendent of police at any time during his acting as such alleged officer.
“The relator avers further that on December 14, 1903, upon the advice of his counsel, he declared the said office of chief of police to be vacant, and immediately sent a formal notification of the fact of vacancy to the defendants as members of the board of public safety, requesting them to forward and submit to him the names of three persons qualified to receive and accept the appointment as such chief of police under the laws of the state, and the regulations of the board pursuant thereto. The said board held its regular meeting on the evening of December 14, 1903, to which was duly presented the request of the relator as mayor. At said meeting, it refused to recognize the existence of such vacancy, or to forward and submit any names to your relator from which to choose a chief of police; and such board will continue to refuse to submit any names out of which the relator, as mayor, may make a proper appointment, unless ordered by the court so to do, on the ground that no vacancy exists.
“Relator avers that it is a duty enjoined by law upon the defendants, as the board of public safety, to present to him the names of three persons from the classified service from which he shall select a chief of police; and in the ordinary course of law he lias no adequate remedy against them for such refusal.
“■Wherefore, the relator prays that the defendants, Charles S. Hall and Edward G. Durst, as directors of public safety, and members of the board of public safety, be compelled to transmit and submit to him, as mayor of the city of Dayton, Ohio, the names of three persons in the classified service of the said city, qualified to be chosen as chief of police; that an alternative writ of mandamus may first issue to them requiring them to show cause, by a day to be named therein, why they do not transmit and submit to him the names of three persons qualified to receive and accept said appointment as chief of police; and on the final hearing that a peremptory writ be issued to compel the defendants, as such board, to submit and transmit the names of such persons. And he prays for such other or further relief as the nature of the ease may require. ’ ’

Upon motion for allowance of an alternative writ it was suggested that the allowance and issuing of an alternative writ be waived, and that was done.

The answer is quite lengthy, and I do not think it necessary to read it verbatim. I have read the petition, because it is a succinct statement of the legislation that is necessarily under consideration in this case.

The answer admits many of the statements of fact set ont in the petition, and then denies each and every other allegation, and then sets up at some length acts of the mayor in recognizing Whitaker as the chief of police; and then comes this averment:

Defendants further say that said board of public safety within thirty days after the organization of such board, did classify all offices and .places of appointment and employment in the department of public safety in said city, in conformity with the ordinance of the council of said city determining the number of persons to be employed therein, and did immediately thereafter furnish to the mayor, the relator herein, a list of all said places of appointment and employment in any way connected with said department within the classified service, together with the names of the incumbents, their compensation and the nature of their duties; that said John C. Whitaker was named in such classification as chief of police and his salary as such chief of police was fixed at $2,500 per year, and he was to perform all of the duties incumbent upon him as the chief of police of said city; and said John C. Whitaker has ever since been addressed and designated and recognized and empowered to áct as such chief of police of said city in all official communications by said relator as such mayor, and by said board of public safety, and has performed the duties of said office under the direction of said relator as such mayor, and said board of public safety.

Defendants further answering say that said relator, as such mayor, has a full, complete and adequate remedy at law.

Defendants further allege that as there was no vacancy nor any prospect of a vacancy in the office of chief of police, no examination has been held of the applicants for said office, and that no register of candidates for the office of chief of police exists from which names could be certified even if there were a vacancy in such office; and defendants further allege that they have had under consideration the rules governing the police department but that they have not all yet been completed or formulated, and that thus far no rule or rules have been made providing for the promotion of members of the police force' from the classified service of the department of public safety of said city.

Wherefore, defendants ask to be dismissed with their costs.

To this answer a general demurrer was interposed and the case is submitted upon the general demurrer to this answer.

The principal contentions upon the part of counsel for the relator are that all laws relating to cities of the second grade of the second class, including that referred to, that is, the act of 1887, relating to the organization of the police department in the city of Dayton, under which "Whitaker was appointed superintendent of police, are unconstitutional, and that an unconstitutional law is void.

“An unconstitutional act is not.a law; it confers no rights; it imposes uo duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 118 U. S., 425-442.

That the law, being unconstitutional, there never was any such office as superintendent of police, and that, inasmuch as there must be a de jure office in order that there may be a de facto officer, Whitaker was not even a de facto officer at the time when the new code went into effect, and that therefore he was not entitled by virtue of that act to the office of chief of police — first, because he was not in office when the code took effect, and second, there being no such office, the code did not merely continue an office already in existence, or continue him in an office which was already in existence, but that it repealed the former law and created a new office, and attached new duties thereto, and that Section 167, in so far as it provides that persons in office or employment shall remain in, is unconstitutional in that it attempts to exercise the power of appointment, contrary to the express provision of Section 27 of Article II of the Constitution. That the classification of municipal corporations, under which Dayton was a city of the second grade of the second class, is unconstitutional is said to be put beyond question by the two cases in the 66 Ohio State, pages 453 and 491.

We do not think the Supreme Court has anywhere held that there can be no constitutional classification of cities by the Legislature, nor is it certain that the act in 84 Ohio Laws, page 52, being the act of 1887, providing for a police force in the cities of the second grade and second class, would be held unconstitutional. Similar acts, too numerous to mention, have been sustained; we need refer only to the case of Seifert et al v. Weidner et al, 55 Ohio State, 646, affirming 12 Ohio Circuit Court, page 1, and to the case there referred to.

But assuming that it would be so held, we are not willing even to conjecture as to the extent of the mischief that would follow if all that has been done under such legislation must be declared illegal. If this legislation is to be held void from the beginning, then the acts of all who acted under it were illegal, for there being no de jure office, they were not even de facto officers.

So far as contract rights are involved, the rule that should govern is, in our judgment, laid down in Douglas v. Pike Co., 101 U. S., 677. Reading from page 687, Mr. Chief Justice Waite says:

“The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative enactment; that is to say, make it prospective, but not retroactive. After a statute has been settled by a judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment.” See also Shoemaker v. Cincinnati, 68 O. S., 603.

How far that rule may be extended we do not undertake to determine.

The sections necessary to be considered are so numerous that that I do not know, in the absence of a memorandum and time to prepare one, that I can refer to them in the order in which they should be noticed, to make plain the conclusion we have reached, but referring to the code, I refer to it by section and number.

Section 146 provides that in every city there shall be a department of public safety, which shall be administered by two or four directors, as council shall by resolution or ordinance determine.

Section 147 provides that all powers and duties connected with and incident to the appointment, regulation and government of the police and fire departments of the city, together with the regulation and control of the fire alarm telegraph and telephone system, shall be vested in the mayor and the board of public safety, as hereinafter provided.

Section 149 provides:

“The police department of each city shall be composed of a chief of police and such inspectors, captains, lieutenants, sergeants, corporals, detectives, patrolmen, and other police court officers, station-house keepers, drivers, and substitutes, as shall have been provided by ordinance or resolution of council.”

Section 148 provides:

“That the chief shall be the executive head of the department, under the direction of the mayor; provided that the chief shall have exclusive control of the stationing and transfer of ail patrolmen and other officers and employes in the department, under such general rules and regulations as may be prescribed by the board of public safety.”

Section 152 provides:

‘ ‘ That the chief of police and chief of the fire department shall have exclusive right to suspend any of the deputies, officers or employes in their respective departments and under his management and control, for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given him by the proper authority, or for any other reasonable and just cause.”

I think we may assume that the office created by this act is a public office, and the chief of police a public officer. That would seem to follow from State, ex rel, v. Jennings, 57 O. S., 415.

Now we have found that the code provides for a police department, for its control by the board of public safety, that it specifies what the force shall consist of, and what the duties of the chief are. The next- question that would arise is: How is this police force to be constituted or appointed? It will be noticed that it says it shall be composed of the chief of police and such captains and lieutenants, etc., and patrolmen and other officers as shall have been provided by ordinance or resolution of council.

It appears from the facts admitted in the pleadings that the council of the city of Dayton, since the adoption of this code, has by ordinance provided for these officers and employes. Now, how are they to be appointed ? Section .153 provides:

“The directors of public safety shall classify the service in the police and fire departments in conformity with the ordinance of council determining the number of persons to be employed therein, and shall make all rules for the regulation and discipline of such departments and for the qualification and examination of all appointees thereunder, except as otherwise provided in this act. ’ ’

Section 158 provides:

“That the board of public safety shall, within thirty days after tlie organization of such board, classify all officers and places of appointment and employment in each city in the department of public safety with reference to the examinations hereinafter provided for. The offices, employment and places so classified by the said board of public safety shall constitute the classified service of the department of said city, and no appointments to such places shall be made except under and according to the rules hereinafter mentioned. ’ ’

The section further provides:

“Immediately upon the classification of such department, such board shall furnish to the mayor a list of all offices, employment and places in any way connected with such department within such classified service, with the names of the incumbents, their compensation and the nature of their duties; and said board shall from time to time promptly furnish to the said mayor, in writing, at his request, all other information desired by him for the proper fulfillment of his duties.”

Section 167 provides:

“No officer or employe in the department of public safety shall be removed or discharged except for cause; and the cause city of the state at the time this act goes into effect, shall be by the mayor to the board, and shall be filed by the said board in its office, and shall be open to public inspection.
“No officer, secretary, clerk, sergeant, patrolman, fireman, or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect shall be removed or reduced in rank or pay, except in accordance with the provisions of this act.”

It will be noticed that the petition avers that the council passed an ordinance creating the department and specifying of what it shall be composed. The answer admits that the - ordinance was passed, then avers that within thirty days after the appointment by the board of public safety the members of that board did classify the offices as provided by Section 158, and that immediately upon the classification of said department they furnished the mayor with a list of all the offices and places of appointment and employment in any way connected with the department, as provided for by ordinance, with the names of the incumbents, their compensation and the nature of their duties, and that Whitaker was named as chief of police, and his salary was stated, and that he entered upon the discharge of the duties of the office, and has ever since continued to perform the duties of that office.

The contention of counsel for the relator is that this provision, that is, the latter clause of Section 167, which I read, and which reads, “That no officer, secretary, clerk, sergeant, patrolman, fireman, or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect, shall be removed or reduced in rank or pay, except in accordance with the provisions of this act, ’ ’ was an appointment of the old members of the police force to positions in these new offices or places created by the code, and that the Legislature, under Section 27 of Article II of the Constitution being prohibited from exercising appointing power, it necessarily follows that this provision of the code is unconstitutional and void, and that therefore Whitaker is not entitled to claim that he' is an incumbent of or in the office of chief of police.

After considering all of the provisions of the code that relate to the creation of the police and fire departments, giving them the best construction of which we are capable, the conclusion which we have reached is that what was intended by the' code was not that under this clause that I have just read, every member of the police force or every member of the fire department in office when that code went into effect was entitled to remain a member of the police or fire department created by the ordinance, but that the intention of the Legislature was that the council should by ordinance provide a police and fire department, and determine the number of employes or places that there should be to fill — that number might be considerably less than the number that were in existence under the old law — and that when council had determined the number of places, that then the board of public safety was to classify those places and to fill those places by naming the persons who were then members of the old police and fire departments, who should fill the places in the new department created by the ordinance, and that that was in effect what they did when they complied with this provision of Section 158, “immediately upon the classification of such department, such board shall furnish to the mayor a list of all offices, employment and places in any way connected with such department within said classified service, with the names of the incumbents, their compensation and the nature of their duties.”

The effect of that was to vest in the board of public safety the power to appoint the chief of police and the officers and employes of the police department from those who were members of the police department at the time the code went into effect. If there were one- hundred and fifty patrolmen under the old law, and but a hundred places for patrolmen created by the ordinance passed by the council, the board of public safety would designate a hundred out of the hundred and fifty old patrolmen, and they would be the patrolmen under this new code, and under the ordinance providing for the police department. In other words, the effect of this was, as I said before, to vest in the board of public safety the power to make these appointments from the old force.

Now as to the provision for appointments in the future in case of vacancies in the force, how are the offices to be filled? The list is to be made up of persons who have taken the examination, and in eases of vacancies, the mayor notifies the board of public safety and they are required to certify three names to him, and from the names so certified, he is to make the appointment. But it is clear that this provision as to examination does not apply to the men who were in office at the time the new code went into effect.

Reference is also made to Section 213—

“All officers elected by the people or appointed by any authority, and all employes under any boards or officers in any municipal corporation, and all officers or employes in any educational, charitable, benevolent, penal or reformatory institution in any such corporation, now serving as such, shall remain in their respective offices and employments and continue to perform the several duties thereof under existing laws, and receive the compensation therefor until their successors are chosen or appointed and qualified, or until removed by the proper authority, in accordance with the provisions of this act.”

It is contended,. I believe, that under this provision, Whitaker’s term of office would have expired and there would be a vacancy. We do not think that section controls. The special sections to which I have already called attention are the ones that control in the police department. This is a general section which is to control generally where no specific or special provision is otherwise made, and has no application here.

The question then arises whether or not this is the exercise of the power of appointment by the General Assembly. The view we take is that clearly this legislation is not appointive. These men were not in by virtue of the provisions of the law, but the board of public safety was to designate who was to fill these places, and the question then would be whether or not this provision of the Constitution was violated by the Legislature, limiting the selection to those who were already officers or patrolmen or employes of the police' department in existence when the code went into effect; and it might be claimed that there being but’ one superintendent of police, one chief executive officer of the department, that the Legislature gave the board no discretion, no chance of selection, but required them to appoint Whitaker, and might as well have named Whitaker. This contention, however, we think is disposed of by Gleason v. Cleveland, 49 Ohio State, 431, where the General Assembly directed the governor to appoint eleven persons to act as a commission for the erection of a monument, I believe in Cleveland. There were only twelve persons, out of whom he was to select eleven. The contention was there made that that was the exercise of the appointing power by the General Assembly, that it was obnoxious to this same constitutional provision. But the court, in the opinion, page 437, say:

“The objection that the persons composing the commission created for the erection of the monument are officers virtually appointed by the Legislature, and that the act is therefore unconstitutional is, we think, untenable. If they are officers within the meaning of the Constitution, the direction for their appointment by the governor from ‘the present monumental committee of The Cuyahoga. County Soldiers’ a.nd Sailors’ Union,’ is impersonal, and does not require the appointment of specific persons; whoever, at the time the appointment is. made, compose that committee may be appointed by the governor, whether they were such members at the passage of the act or not.”

It dops not follow that Whitaker would necessarily be the appointee. If Whitaker' had died prior to the taking effect of the code and his successor had been appointed, then it would have been his successor who would have been the chief, or whoever was in office at that time. Counsel criticizes the case, and we are not disposed to take exception to their criticism. It is said that it is not in point for the reason that this case is based on the ground that these persons were not officers. But it is apparent from what I have read that that can not be so. The decision is upon the assumption that they were officers.

I refer to the case of Fosdick v. The Village of Perrysburg, in the 14th Ohio State, reading from page 482. I do not know that it has any bearing, but it is interesting in view of the fact that there the action of the General Assembly in undertaking to create or classify municipal corporations under the provisions of the Constitution when it came into effect, was under consideration, and the court says, or the judge delivering the opinion, Judge Brinckerhoff, I believe:

“The corporate life of the village of Perrysburg was a continuation of the life of the town of Perrysburg. It was a continuation; not an annihilation and a re-creation. Even the official designations of the officers respectively of incorporated villages organized under the general act were the same as under the special acts organizing them as ‘towns’; they were still a mayor, recorder, and trustees, which, together, constituted a council (Section 47). And the officers in office at the time of the taking effect of the general act, were, under its provisions, continued in office until the first Monday of April following and until their successors should be elected and qualified. ’ ’

McMahon & McMahon, for plaintiffs.

Edwin P. Matthews, City Solicitor, Philo G. Burnham,, Assistant City Solicitor, Conrad Mattern and S. A. Dickson, for defendants.

The old laws relating to municipal corporations were repealed. The law went into effect on the 15th day of May, 1852,1 believe, and by force of this act of the General Assembly all the old city officers were continued in their places until the following April, nearly a year. That is attempted to be done under the provisions of the act under consideration here.

At the time the application was made for leave to file a petition, or for the allowance of an alternative writ, the court intimated a doubt as to the right to proceed in mandamus. That question we have not examined, for the reason that upon examination of the whole case we are clearly of the opinion that the effect of the legislation is as I have indicated; that is, to> vest in the board of public safety, in the first instance, the power to make the appointments from the existing police force, or from the persons in office at the time of the passage of the code; and whether they were de jure officers or de facto officers we think is wholly immaterial. It was in the power of the General Assembly to provide for their appointment in the way it was done, and for these reasons the demurrer to the answer will be overruled.


text:
    LIEN OF JUDGMENT CREDITOR.
    [Circuit Court of Lucas County.]
    Albert V. Bauman et al v. Edwin D. Goulet et al.
    Decided, October 31, 1903.

      Lien — Of Judgment Creditor — Saved from Becoming Dormant — By Answer and Cross-Petition in Foreclosure Suit — Filed Within Five Years of the Date of the Judgment — The Buie in Dempsey v. Bush — Execution.
    Where one owning a living judgment, which is a lien on lands, is made a party defendant and enters his appearance in an action to foreclose a mortgage which is an inferior lien upon said lands, the petition in which case contains the averment that such defendant claims some interest in or lien upon said lands, and contains a prayer that he may be required to answer and set up whatever interest or lien he may have or be forever debarred from asserting the same; and also for a marshalling of liens, a foreclosure of plaintiff’s mortgage, a sale thereunder, etc., the priority of the lien of such judgment is preserved in the proceeds of a sale made in said action, if an answer apd cross-petition setting the same up and asking appropriate relief touching the same is filed in the case within rule, though it may not be filed until more than five years from the date of such judgment, and no execution has been issued thereon during such period.
    Parker, J.; Haynes, J., and Hull, 'J., concur. .
   This case comes into this court by appeal, and the question we have to dispose of arises upon a demurrer to the answer and cross-petition of Willard F. Robison. The action of the plaintiffs is to foreclose a mortgage upon certain premises. Willard F. Robison, it appears, recovered a judgment against Henry T-T Cushing, who at one time was the owner of these premises, the judgment having been recovered November 15, 1897. Afterward Edwin D. Goulet became the owner of the premises and mortgaged them to the plaintiff. Within five years of the date of the judgment recovered by Robison the petition in foreclosure was filed by the plaintiff. Robison was made a party defendant, and it-was averred in the petition with respect to him that he had or claimed a lien upon the premises, to-wit:

“Plaintiffs further say that the defendants, Willard F. Robison, A. Y. Bauman and E. B. Smith, trustees of the Imperial Savings Co., and J. H. Krause claim some interest or liens on the real estate described herein, of the exact nature of which these plaintiffs are not advised, but which they say are inferior to the liens of plaintiffs herein; that they, therefore, pray that they may be required to answer and set up whatever interest or liens they may severally have in or to the real estate described herein, or be forever barred from asserting the same.”

There is a general prayer for the marshaling of the liens, the foreclosure of the mortgage, sale of the premises, distribution of the proceeds, etc. As I say, Robison was made a party defendant within five years of the date of the recovery of his judgment against Cushing and he entered his appearance to the suit, from which it should be assumed, and is assumed by counsel in argument, and will be assumed by us as one of the facts in the case, that he became a party and came into the case to all intents and purposes upon the date that the petition was filed, which was October 20, 1902. He filed his answer and cross-petition upon his judgment upon December 17, 1902, which was something over five years from the date that he obtained his judgment. A demurrer to his cross-petition is filed by the plaintiff. The contention is that not having had any execution issued upon his judgment within five years from the time of its recovery, which is one of the conceded facts in the case, and not having filed his cross-petition upon his judgment within five years from its recovery, the lien of the judgment is lost. The statutes bearing upon this subject are as follows: Section 5375 provides that a judgment shall be a lien upon the lands of the judgment debtor in the county where the judgment is recovered, from the first day of the term at which the judgment is recovered — that is, a judgment of an ordinary character and of the character of the judgment recovered by Robison in this case. Section 5380 provides:

‘1 If execution on a judgment rendered in any court of record in this state, or a transcript of which has been filed as provided in Section 5367 be not sued out within five years from the date of the judgment, or if five years intervene between the date of the last execution issued on such judgment and the time of suing out another execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.”

It is upon the terms of this statute that the plaintiff demurring relies. An important exception has been, as we may say, engrafted upon the statute by a decision of the Supreme Court in the ease of Dempsey v. Bush, reported in 18 O. S., page 376, and the whole matter is stated in the second proposition in the syllabus:

“ In an action to subject mortgaged land to sale, and to ascertain and marshal the liens thereon, a judgment creditor,1 who was properly made a party while his judgment was alive, will not lose his right to share in the distribution of the money arising from the sale, by the fact that his judgment became dormant pending the action.”

Now it is conceded by the plaintiff that the rule as broadly stated in that syllabus, if applied to this case would require the overruling of this demurrer; but he insists that that proposition of the syllabus shall be read in the light of the facts in that case and that the rule is too broadly stated; and the particular fact in the case which he insists modifies or qualifies the rule is that in that case a cross-petition upon the judgment lien was filed within five years of the date of the recovery of the judgment, and counsel call attention to certain utterances of the Supreme Court which seem to give some color to the argument that some of the court at least have regarded the rule as being stated too broadly in this ease of Dempsey v. Bush and have regarded the filing of the cross-petition (where a defendant seeks to preserve or enforce his lien) and within five years from date of judgment or execution as an important element necessary to preserve the lien of his judgment. In the case of Fort, Sadler & Bailey v. Casper Litmer, reported in the 31st O. S., 215, Judge Gilmore, in delivering the opinion, says with reference to this proposition in Dempsey v. Bush:

“The second proposition of the syllabus in this case is cited by the plaintiffs in error in support of the motion. Although the language used in this proposition is somewhat broader than was necessary for the decision of the case then before the court, still it is not broad enough to cover the claim of the plaintiff in this ease, by any fair construction.”

In Fort v. Litmer, 31 O. S., 215, the rule in Dempsey v. Bush is stated with the qualification that the party shall file his cross-petition before the expiration of the five years, and it is stated as if that were one of the elements of the rule, whereas it is not so stated in the case of Dempsey v. Bush. Quoting from Fort v. Litmer:

“In such a case it has been held that a defendant holding a judgment lien, which becomes dormant after the filing of his answer setting it up, will be protected, ’ ’ etc.

That, of course, is consistent with what is held in the case of Dempsey v. Bush and consistent with the facts in that case, though it suggests a qualification of the rule as stated in that case. Reading from the opinion of Judge White in Dempsey v. Bush:

“The land sought to be subjected to sale was, at the commencement of the suit, subject to two mortgages and a large number of judgments liens. By the records, the judgment in favor of Ross’ executors was prior to plaintiff’s mortgage; but, by agreement between the parties, the mortgage was to be first paid. In this state of the title, a sale upon execution would not have been an adequate remedy. This could only be afforded in equity, in a suit to which all the lienholders were parties, and where the various liens could be ascertained and marshaled, the property sold discharged of such liens, and the proceeds properly distributed.”

What is said in reference to the state of facts in that case— the result of a sale on execution, and the propriety of marshaling liens, etc. — is applicable to the case at bar. Then he proceeds :

‘ ‘ Such is the character of this suit, instituted by the plaintiff as mortgagee to foreclose his mortgage, and to which the judgment creditors are parties; and its prosecution having resulted in a sale of the land, it has, in equity, performed the same office as respects the judgments, which would have been performed by sale on execution had that form of process been available and resorted to.
“The object of the suit from its commencement, was to subject the land to sale for the benefit of the parties; and it would be exacting a vain thing of a judgment creditor to require him, pending the suit, to make an ineffectual attempt, by execution, to accomplish the object for which the suit was being prosecuted. ’ ’

And it is conceded by counsel for plaintiff here that it would be a vain thing to have execution issued; but still it is urged that a party insisting upon and attempting to preserve the lien of his judgment, should do something on his own behalf, should take some active measure, should at least file his cross-petition within the five years which would be an act done by him and which would have the same effect under the rule laid down in Dempsey v. Bush as having execution issue; that he should not action taken in his behalf, action which, it is urged, is in an action taken in his behalf, action which, it is urged, is in some degree adversary to him; that he should undertake to enforce his own claim, and that if he finds that an execution is impracticable, or would be idle and vain, if an action is begun to marshal liens upon the property, he should within the five years file his answer and cross-bill on his own behalf for relief. But Judge White says in this case, reading further:

“The action is a proceeding in equity to enforce the payment of the judgments and mortgages from the land; and in distributing the money resulting from its prosecution, it seems to us no good reason exists in equity why a judgment creditor, who was properly made a party while his judgment was alive, should lose his right to share in the distribution by the omission to issue execution, which, under the state of the title, could not have resulted in the sale of the land.
“The nature and object of the suit was the execution and enforcement of the liens of all the parties; and, when properly and successfully resorted to, it may well be held to supercede the necessity of other modes of execution.”

The court considers the action of marshaling the liens as an action on behalf of all parties interested in the land, superseding and obviating the necessity for an execution on behalf of any who are to be made parties to the suit — that it is in effect a sort of an equitable execution, taking possession of the property and bringing it to sale for the benefit and in favor of all parties interested; and we think that this is a proper view of the matter, and that is the real kernel in this case. Although as a matter of fact in this case of Dempsey v. Bush a cross-petition was filed before the five years had expired, whereas in the ease at bar it was not filed until after, we think the fact that the cross-petition was not filed herein until afterwards makes no difference. What the situation of the defendant, Robison, might be if the plaintiff had dismissed the action before Robison had filed his answer and cross-petition, we need not stop to inquire, because that case has not arisen. It might put him in a very embarrassing situation, but the plaintiff has not done that. The plaintiff is prosecuting his action, and Robison has a right to be heard in the action and to have his lien taken care of.

TT. T. S. O’Hara, for plaintiffs.

Hamilton & Kirby, W. T. S. O’Hara, T. L. Gifford, for defendants.

Entertaining these views, the demurrer to the cross-petition is overruled.


text:
    NEGLIGENCE AS BETWEEN A FIRE DEPARTMENT TRUCK AND AN ELECTRIC CAR. IN COLLISION.
    [Circuit Court of Lucas County.]
    The Toledo Railways & Light Company v. Elizabeth J. Ward, Administratrix of the Estate of John D. Ward, Deceased.
    Decided, October 31, 1903.

      Negligence — At a Grossing of Streets — Electric Gar Running Twenty-five Miles an Hour Collides with Ladder Truck — Captain of Truck Killed — Verdict of $3,000 Sustained — Challenge of Jurors — Irregular Calling of Bystander by Order of the Judge — Judicial Discretion — Evidence of Custom in Slackening Speed of Cars at Crossings — Rules of Company Properly Put in Evidence — Eire Department Not Subject to Ordinance Limiting Speed of Driving Through the Streets.

    1 A bystander was called by tbe clerk at tbe direction of tbe court to fill a jury panel, at a time wben tbe regular jury were in tbe consideration of a ease. After be bad been examined, but before being sworn, the regular jury came into the room,, and at the suggestion of counsel for plaintiff the bystander was asked to step aside, and one of the regular jury was called in his place. Held: That this could not be regarded as in effect a granting to the plaintiff of an additional challenge, but was within the discretion of the court, especially where the place of one called in an irregular way. was filled by a member of the regularly impanneled jury.
    2. Evidence of a custom of slackening the speed of electric cars in approaching a particular street crossing is admissible in a trial involving a collision at that crossing, as. bearing upon the question of contributory negligence on the part of the one injured.
    S. And, likewise), where the one injured is a fire captain, a rule of the street railway company, requiring that the right of way be given to an engine or truck of the fire department, is admissible in evidence), as is also a rule requiring all ears to slacken their speed at prominent crossings.

      4 Cross-examination of a witness tending to show his feelings toward the parties to the suit is proper as reflecting upon his credibility.
    5. A fire department is not subject to an ordinance prohibiting driving or riding upon the streets at a rate of more than six miles an hour.
    <5. It is not prejudicial in a charge to the jury, relating to the damages which may be recovered on account of the wrongful death of a husband or father, to use the word “bereaved” in the sense ot “deprived.”
    7. An electric car traveling at the rate of twenty-five miles an hour collided, at a street crossing at 1 a. m., with a ladder truck, which was being driven at the rate of eight miles an hour. The captain of the truck, fifty-two years of age and earning $900'a year, was killed, and a jury returned a verdict of $3,000 in favor of his estate. He left a widow and grown-up children. Held: That in the absence of evidence the • law will presume that the decedent supported his wife; that the question of his contributory negligence was a proper one for the jury; and that the verdict was not excessive.
    Hull, J.; Haynes, J., and Parker, J., concur.
   This action was brought by defendant in error, who was plaintiff below, as administratrix, to recover for the death of John B. Ward, who was her husband. A verdict was returned in her favor for $3,000. Judgment was entered upon that, and this proceeding in error was brought to reverse that judgment. Ward was a captain in the fire department of the city of Toledo, ■ being a captain of a hook and ladder truck with three men under him — two truckmen and a driver. About one o’clock in the morning of December 24, 1901, an alarm of fire was sounded in the western part of the city, at the corner of Nebraska avenue and Hawley street; the truck of which Ward was captain responded and left No. 7 engine house at a few minutes before one o’clock, and some few squares from Dorr street reached Collingwood avenue and turned into it, going toward the fire. At the intersection of Collingwood avenue and Dorr street the truck was struck by a street ear of the defendant company, running westward on Dorr street. The truck was partially demolished and Captain Ward so injured that he died in a few hours, and this action was brought against the railway company to recover damages for his death, on the ground that it was caused by the negligence of the employes of the railway company who were running the ear.

The ease was tried to the court and jury and the first error complained of was in the selection of the jury. When the ease was called for trial, the regular jury, or the most of them, were at that time engaged in the consideration of another case. The court began the impanneling of the jury, and in order to fill the panel directed the clerk, there not being enough regular jurors present, to call one M. Loenshal into the box, N.e being a bystander, and when he took his seat in the jury-box he was ex*amined by counsel on both sides, and was interrogated as to hit) relations with the railway company and its employes and or, other subjects, and the record recites that after this examination no challenge to him for cause was made, but that shortly after the examination the regular jurors, who had been deliberating upon another case, agreed upon a verdict and came into the court room and were discharged from that case. Thereupon Judge Commager, who was one of counsel for the plaintiff below, made this statement to the court: “I will ask Your Honor to call the regular jurors instead of talesmen, if we have a regular jury here.” Thereupon the court directed Mr. Loenshal, who had been thus called into the box, to step aside, and to this action of the court the defendant railway company objected and excepted. Then the court directed the clerk to call the regular jurors, and Andrew Baker was called into the jury-box, presumably upon a call of the roll, as that would be the regular and proper way to call jurors. Then the plaintiff peremptorily challenged a juror, to which the defendant railway company objected and excepted, claiming that the court had no right after the juror, Loenshal, had been examined and no challenge for cause had been made, to direct him to step out of the jury box on the ground that the regular jury had come into the room, counsel for the defendant urging that he had become to all intents and purposes a regular juror and that they were entitled to have him remain in the jury-box ; that the fact that the regular jury had come into the room did not affect the situation, and claimed that it was, in fact, giving to the plaintiff an additional peremptory challenge upon no ground stated in the statute. The record discloses that no challenge for cause was made to Loenshal, but after the regular.jurors came into the court room the suggestion of 'Judge Commager was made to the court, as stated, and the court directed the clerk to call the regular jury.

In our judgment, there was no error in this proceeding of the court. Mr. Loenshal had not been sworn; he was not challenged “for cause,” it is true, but he had been subjected to an examination, by counsel for plaintiff, and in the course of that examination it is apparent that counsel concluded he would be an undesirable juror to sit in the ease and that they did not desire to have him sit, and therefore suggested to the court that as regular jurors were present, one of them be called. There are three ways of challenging a juror under our statutes — he may be challenged peremptorily, he may be challenged for cause, and there is a challenge to the favor, which is a kind of a challenge for cause, under Section 5177, which provides:

“Any petit juror may be challenged also on suspicion of prejudice against, or partiality for, either party, or for want of a competent knowledge of the English language, or for any other cause that may render him at the time an unsuitable juror, and the validity of such challenge shall be determined by the court; and either party may peremptorily challenge two jurors. ’ ’

It may have occurred to the court — we do not know — after hearing this examination of the juror and learning what was elicited by that examination, that he was an unsuitable juror to sit in the case, and, upon reflection, the court may have concluded that in its discretion it would excuse him; that would be within the discretion of the court.

It may be remarked in passing that this juror was not called into the box in the regular way, as we read the statute. Where talesmen are called the statute makes it the duty of the sheriff to call them. If either party requests a special venire, the court may order it and give the names to the clerk, but the statute provides, Section 5173:

“But no person known to be in or about the court house shall be selected without the consent of both parties.”

Mr. Loenshal, at the time he was selected was in the court room. There is no provision of the statute, to our knowledge, authorizing the court to direct the clerk to call a man in this manner into the jury-box, though it may be done, of course, by consent; but unless a special venire is asked for, the statute makes it the duty of the sheriff, or his deputy (the court constable may also act for him), to fill the panel. So that there was an irregularity in the calling of this juror into the box. We do not speak of this in the way of criticism, there being no objection made upon that ground, but we speak of it as a fact in the ease, it being claimed that the court erred in directing Loenshal to step aside. In the first place he was not regularly in the jury-box, and that may have occurred to the court. But, beyond all that, we are of the opinion and hold that the court had a perfect right to direct a bystander or talesman who had been called into the box, to step aside before being sworn if regular jurors came into the room, having been detained in the jury-room until that time. It is the business of the regular jurors to sit in the trial of cases; they are summoned for that purpose and their names having been drawn in the regular way out of the jury-box, if they are present, parties and counsel have the right to have their cases tried to the regular jurors who have been drawn and summoned. Talesmen and bystanders are called and special venires issued to fill vacancies which are occasioned by the absence or challenge of the regular jurors. It is not the policy of the law or the theory of these statutes that talesmen and bystanders shall sit on the jury when regular jurors are sitting idle in the court room. They are paid their per diem for performing this service, and their pay goes on usually whether they are actually sitting in a case or not, and it is in the interest of economy and good business policy for the court of common pleas to see that they are kept busy in the jury-box and not to call talesmen or bystanders when not needed. This man had not been sworn; he was not yet a juror, and whether he would sit or not was still within the discretion of the court.

A case in 63 Michigan was cited by counsel for plaintiff in error, but in that case a regular juror was excused by the court without any cause or reason, and the Supreme Court held that the judge had no right arbitrarily to direct a regular juror to step out of the box. That is not this ease.

The truck was going at a rate of seven and a half to eight miles an hour along Collingwood avenue, an asphalt paved street; the car was going, according to the undisputed evidence in the case, from twenty-five to thirty miles an hour. It is claimed that Ward was guilty of contributory negligence in the manner in which this crossing was approached; that the horses were going at an excessive rate of speed and in violation of the ordinances of the city; it is claimed that the motorman of the car was ringing the bell so that it might have been heard if ordinary care had been exercised by Ward and the others upon the truck. One of the men on the truck, the driver who was driving the horses was not called as a witness, and a witness — Beck—was called and testified as to this driver’s condition — to explain why he was not called as a witness. Beck’s testimony upon that question was objected to, but was admitted and exception taken. He was permitted to state that he talked with the driver and the driver could not remember what had occurred; that he was injured about the head, and that the driver told him he could not remember. Without discussing this in detail, we are of the opinion that there was no error in admitting that. The testimony did not relate to any facts in the case, but it was proper to explain to the jury why this witness was not called and the explanation sought to be given was that, on account of his injuries, he had no recollection of the accident. Beck gave his opinion from seeing him and talking with him. That want of recollection may have been feigned by the driver, but it was a question to go to the jury. The driver might have been subpoenaed by the defendant and examined before the jury. In our judgment there was no error in admitting this testimony.

It is claimed that there was error in admitting the evidence of a custom of slacking the cars at this crossing. There was evidence offered and admitted tending to show that it was the custom in approaching this crossing for the cars to slacken their speed, and several witnesses testified to that, and the evidence showed that Ward had often crossed this crossing. He had been in the fire department for twenty-five years, and the presumption is that he had some knowledge of this custom, if it existed. Upon the question of contributory negligence and what he had a right to take into consideration at the time, we think it was proper to admit the evidence of such a custom, and it was for the jury to say whether that was a proper thing for him to consider and whether he probably knew of it.

Rules of the company were admitted over the objection and exception by defendant. A rule required the street ears to give the fire department the right of way at all crossings, and, if necessary, to stop and allow the truck or engine of the fire department to go by. We think that was properly admitted. The men on the truck had a right to take that into consideration as they approached this railroad crossing, and the violation of the rule would be evidence of negligence.

Another rule required the cars to slacken their speed at all prominent crossings. This was offered and admitted over the objection and exception and we think properly admitted.

On cross-examination, an employe of the railroad company, called by defendant, was asked by counsel for plaintiff if he had not been interviewed by counsel for plaintiff and refused tc answer, stating that it was the rule to say nothing; and he was asked as to statements of his after the accident. This was objected to and exception taken. We think it was proper, on cross-examination, to show the feeling of the witness towards the company and his feelings towards Ward as reflecting upon his credibility as a witness.

The defense offered to put in evidence the ordinances of the city prohibiting riding or driving on the streets of the city faster than six miles an hour. This was excluded by the court and that is claimed to have been error on the ground that the violation of a city ordinance is some evidence of negligence, and that it should have gone to the jury. The fire department is not subject to such an ordinance. It is the duty of the men in the fire department to get to a fire as quickly as possible after an alarm of fire is sounded; property and often human life are at stake, and an ordinance prohibiting firemen from going to a fire faster than six miles an hour would be unreasonable and would not be enforced by a court. It has been held by the Court of Appeals of New York and by the Supreme Court of Kansas that such ordinances do not apply to the fire department. The question is discussed in a case in American Negligence Cases, Vol. 1, p. 341 (152 N. Y., 222, Farley v. The Mayor, etc.) I read from the syllabus:

“Section 1932 of the consolidation act, regulating the speed of horses in the streets, has no application to fire engines on the way to fires.”

And this is discussed in the opinion along the lines that I have suggested. And again in the American Negligence Cases, Vol. 1, p. 67 (60 Kan., 481, Kansas City v. McDonald), the Supreme Court of Kansas, in the first paragraph of the syllabus, say:

“An ordinance making it a misdemeanor for any person intentionally to ride or drive any horse, mule, or other beast faster than an ordinary traveling gait in any of the streets of the city is unreasonable when sought to be applied to the fire department when driving to a fire, and for that reason will not be enforced.”

There was no error in the court’s refusing to admit the ordinance.

The charge of the court is complained of. After an examination of the charge as a whole, we are of the opinion that there was no error in the instructions given to the jury by the court prejudicial to the defendant below; that the instructions upon the question .of concurrent negligence and subsequent negligence were fairly within the authorities. It is complained that the court used this language:

Smith & Baker, for plaintiff in error.

D. H. Commager, Harry S. Commager and Harvey Scribner, for defendant in error.

“It is purely a question of how much money will fairly compensate this wife and these children for what they have actually lost by reason of being deprived, or bereaved, if you please,of the support and maintenance which this husband would have rendered them.”

Objection is made to the word “bereaved”, on the ground that bereavement is not to be considered; but it is evident that the court used the word only'with the meaning of “deprived” of the services, and the jury could not have been misled. There is no error in the rule for the measure of damages as given by the court, and the verdict of $3,000 is not excessive. It is said there was no evidence offered to show that Captain Ward supported his wife. That would be the presumption. He was a man fifty-two years of age and had been in the fire department twenty-five years. He was tall and weighed nearly two hundred pounds; earning $900 a year. He had a wife and three grown children who, although of age, are to be considered in some respects in the matter of damages, and we think $3,000 was not an excessive verdict.

Nor do we think that the verdict was against the weight of the evidence. The proof is that the ear was going twenty-five to thirty miles an hour; this is not denied by any witness. There were three or four men in the ear, employes of the railway company, and none of them denied that the car was going at that rate of speed, and none, except the motorman in charge of the car, seemed to know how fast the car was going. Whether the bell was rung or the gong sounded is a disputed question. The truck was going seven or eight miles an hour. Whether Ward was guilty of contributory negligence, and whether the company was guilty of negligence, were fair questions to submit,to the jury, and with their finding we have no complaint to make. The judgment will therefore be affirmed.