author: HULL, J.

text:
    FIRE INSURANCE — AGENCY—ESTOPPEL—WAIVER.
    [Wood (6th) Circuit Court,
    April Term,
    April 25, 1903.]
    Ida Stacy v. Norwich Union Fire Insurance Society.
    Parker, Haynes and Hull, JJ.
    1. Conflicting Testimony of Witness Should be Submitted to Jury, When.
    Where the testimony of a witness is conflicting, especially where the witness is hostile, if some part of his testimony tends to support plaintiff’s claim, it raises a question that should be submitted to a jury.
    2. Denial of Liability by Insurance Company Waiver of Written Notice.
    A denial by an insurance company of any liability upon a policy is a waiver of the requirement of written notice of and proof of loss, if made within the time when such notice and proof are required by the policy to be made.
    3. Foreign Insurance Company Estopped to Deny Agent’s Authority, When.
    Where a foreign insurance company puts in the hands of an agent policies of insurance, signed and countersigned and ready for execution and delivery except filling in the name of the party and the description of-the property, and gives no notice that there is any other agent in this country, and the loss occurs before the policy is delivered and the insured has not seen the policy and knows of no other agent, the company is estopped to deny his authority to represent it in all matters necessary to the making of a contract of insurance and pertaining to the settlement of a loss, and such local agent may waive notice and proof of loss by notice to the insured that the company denies all liability upon the policy.
    Error to court of common pleas of Wood county.
    Baldwin & Harrington, for plaintiff in error.
    James O. Troup, for defendant in error.
   HULL, J.

(Orally.)

The parties in this case stand in this court the same as in the court below, the plaintiff in error having been the plaintiff below. The action was brought on a fire insurance policy to recover $572.30 for the loss by fire of a building which was insured by the defendant in error. The court below directed a verdict in favor of the defendant at the close of plaintiff’s evidence upon the ground that no written notice’of the loss had been given to the company as required by the policy, and no formal written proofs of-loss made to the company, as required, and that there was no evidence tending to show that the company had waived these requirements. Proceedings in error were commenced in this court to reverse, that judgment.

The policy was introduced in evidence upon cross-examination of a witness called by the plaintiff. It contains a condition requiring immediate written notice of the loss to be given to the company and formal written proofs of loss to be made to the company within sixty days after the date of the loss. It is not claimed that any written notice was given to the company or that any written proofs of loss were made; the case turns on the question as to whether these requirements were waived by the company. It is- claimed that the company, through its agent, denied any liability on the policy; denied, generally, any liability upon the policy after the fire, and within sixty days, not basing its denial and refusal to pay upon the failure to give notice and-present written proof of loss. The law is well settled that if this were true, that such a denial of liability were made, that would amount to a waiver of the requirement of written notice or proof of loss, if the denial was made within such time as the proof of loss is required to be made; the authorities are all one way on that question. It would be idle to make proof of loss after the company had notified the assured that it.would not pay; and it is claimed here that the company did deny liability, and that, therefore, this requirement was waived. The plaintiff claims that this denial of liability was communicated to him by the agent «of the company in Bowling Green, one E. A. Barton, he being the agent of the company and representing it there. The head office of the company and its headquarters are in Norwich, England. The evidence of the plaintiff tends to show that shortly after the fire, Barton told him that the company denied all liability on the policy, and in substance, that it would not pay. This, Barton, who was called by the plaintiff, denied, but the .evidence of the plaintiff is in the record.

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

The circumstances of the insurance and the fire and what occurred, as far as the contract is concerned, may be briefly stated. The insured acted entirely through her husband as her agent; he made application to Mr. Barton to insure the'property, and according to his testimony, Mr. Barton assured him he would endeavor to place the property in some of t-he companies he was representing, and stated to him that he represented the Norwich Union Company and others, and thought he could place it in the Norwich company, and Stacy requested him to do so if he could. After that, this policy was written by Mr. Barton. He had in his possession policies signed by the proper officers of the company, and it was only necessary for him to fill them in and countersign them. The policy was not delivered to Stacy. Stacy testified he was not certain what company Barton would insure the property in, but when the policy was written, it was to be turned over to him. The policy was written under date of February 9, 1901, and while it was still in the office of Mr. Barton, not having been delivered, on the evening of February 15, 1901, he (Barton) received a telegram from an authorized agent of the company at New York, signed “The Norwich-Union Fire Insurance Society,” to cancel the policy, the company reserving the right to cancel any policy issued by its agent upon his notifying them of the risk he has taken, though he has authority to’ issue the policy, and the company would be bound by it until it was in fact cancelled, and under the statute of this state it would continue in force five days after notice of cancellation was given to the insured. Barton received this notice about five o’clock in the afternoon of February 15 — some six days after the policy was written. He gave no notice to Mr. Stacy of the cancellation, and that night, about midnight, the property was destroyed. Barton saw Mr. Stacy the next day and notified him that the company had cancelled the policy and he had sent it to the company. The policy was never delivered to Mr. Stacy and he never saw it, or any part of it, and had no.actual notice, until after the lpss, of its contents or any of the conditions, restrictions or requirements contained therein. Barton tpld Stacy that he would notify the company of the loss. He had already sent in the policy and it was not necessary to telegraph the company, as the loss was a total one. Barton first talked with Stacy by telephone the morning after the fire, and asked, if there was some one he could interrogate in regard to the loss, and .Stacy recommended him to some reputable citizens in the village, and Barton did investigate the loss to some extent before he saw Stacy.

A few days or a week after that, Stacy called on Barton again and, according to Stacy’s testimony, Barton told him he was afraid there was going to be trouble; that the company denied all liability on the policy, and some few times after that Stacy saw Barton in regard to the matter, and nothing was ever paid upon the policy. Barton testified he had some communication with Mr. Sowards, the general agent, or general adjuster of the company at Cincinnati; he was unable to tell just when this was; but he said that Sowards had written him a letter or told him that the company would not pay; he said this was three or four weeks after the loss, and afterwards he said it might be by letter, and in some place in his testimony he said it was sixty days after, and finally it was shown that Barton was unable to state when Sowards had made this statement to him that the company would not pay.' After the sixty days had expired, within which time proofs of loss might be made, Barton received a letter from Sowards in which he said “No proof of loss having been received within the time allowed, there will, of course, be no possibility of our paying the loss unless it proves that you have, by your communications with Mr. Stacy or Mr. Sutton, so involved us as to make yourself liable to us for any claim which can be successfully prosecuted.”

The weight of authority, generally, seems to be that a local agent, with power to solicit insurance, collect premiums and issue policies, under a policy containing such restrictions and conditions as this one, has not the power to waive proof of loss unless the company has conferred upon the 'agent additional authority after the loss or has apparently conferred such authority upon him theretofore. I say the weight of authorities seems to sustain the proposition that, in the absence of anything of this kind, the local agent has no authority to waive such requirements. I will not undertake to review the authorities that were cited by counsel; there are many of them that sustain that proposition. There is no case directly in point in this state that is decisive on this very question. The tendency of the Supreme Court of this state has been to hold, perhaps, rather liberally to the doctrine that the agent who has power to issue policies as Barton had, has authority to represent the company. In the case of Newark Machine Co. v. Insurance Co. 50 Ohio St. 549 [35 N. E. Rep. 1060; 22 L. R. A. 768], Judge Williams, in discussing the'question of a local fire insurance agent, held that such an agent was a general agent of the company. The real question in that case, however, was whether the agent had power to extend time of-payment and receive payment for insurance other than cash; so the language of Judge Williams must probably .be regarded as dictum, as urged by counsel rather than an expression of the Supreme Court that such an agent is a general agent of the company with power to bind it in all matters after the loss, as well as before. In the fourth paragraph of the syllabus the Supreme Court say:

“An agent authorized to make contracts of fire insurance and issue policies, may waive payment in cash of the premiums, and give time for their payment, unless there are restrictions upon his authority of which the insured had notice; and such waiver may be express or implied.”

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

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

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

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

■ It is, of course, true, that the company may confer any authority in the transaction of its business upon, any agent that it has, whether a local or general agent, and if it does confer such authority upon the agent, expressly or impliedly, the conduct of the agent would bind the company. I say this authority may be conferred expressly or by implication. If the company treats its agent in such a way after a fire as to hold him out as a person authorized to represent the company in all matters and things coming after the fire, it would not be permitted to say that he had authority to represent the company in some respects in regard to those matters occurring after the fire or necessary to be attended to after a fire, and did not have authority to represent it in other respects. It cannot be permitted for the company to confer authority upon its agent to represent it in certain things in regard to the loss after the fire, but, without notice to that effect, to claim he had no authority as to receiving notice or proofs of loss. It is a general principle, that where business is intrusted to an agent by> the principal to be performed, that in the absence of any notice to the contrary, he has implied authority to carry on the business to its completion and do all things necessary for the purpose. In this case, fhe agent represented the company, and was permitted to represent the company in a manner inconsistent with the claim that he had no authority to do so after the fire in the matter of the loss. That was a fact tending to show that he had authority to represent the company in the matter of receiving notice or proof of loss, or in the matter of denying liability on the part of the company. It should not be lost sight of that, according to this record, at the time this party was insured, and at the time this fire occurred, or at any time before the case was tried, plaintiff had no notice or knowledge of any agent of this company in the United States except Mr. Barton. Stacy had never seen the policy; the company had its headquarters on the other side of the Atlantic, in Norwich, England, and when this loss occurred there was no one that Stacy knew that he could go to, except the agent from whom he had procured this policy, and he went to him, and the agent made the statement to him that he would give notice of the loss to the company, and he did proceed to give notice of the loss to the company. The agent asked Stacy whom he could inquire of in regard to the loss, and he gave him the name of a Mr. Watts. Barton communicated with Watts and ascertained the facts— ascertained that the loss was total. Barton wrote to the company, and it wrote to him through Mr. Sowards, its agent, who was inclined to censure him, and the whole matter in relation to this loss was left by the company, so far as having anyone in charge on the ground, to Mr. Barton, j

It seems to us that there is evidence in the record tending to show that the company permitted Mr. Barton to represent them in this matter after the loss occurred, and if this were true, we think then he would have authority to do those things that it is claimed he did do, so as to bind the company in the way of waiving notice of loss and proofs of loss; and upon this proposition may be cited the case of Citizens Ins. Co. v. Stoddard, 64 N. E. Rep. 355 [197 Ill. 330], a decision of the supreme eourt of Illinois. The court say in the syllabus:

“In an action on a fire policy it was shown that an alleged agent of the company had' received the application and delivered the policy, and that, when he received notice of the losses and forwarded it to the insurer, the latter acknowledged its receipt to him, and asked him to investigate the case, but to do nothing by way of an adjustment.

Subsequently, not hearing from the adjuster, the insured called on the agent, and he wrote to the insurer, which replied again, asking that he look into the loss. Held, that the evidence showed that the alleged agent was the agent of the insurer in the matter of the loss, so that conduct on his part inconsistent with the provision of the policy as to proofs of loss, would be binding on the insurer.”

The only defense in this case was that proofs of loss had not been made within thirty days, but had been made in sixty days, the agent having told the insured that sixty days would be soon enough. The court held that in view of the conduct of the agent and what he did for the company after the fire, that he so far represented the company that they could not deny his authority to make this statement; the court say further, at the end, of the opinion, that it is unnecessary that such a waiver be written upon the policy. They say:

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

The court cites Firemen’s Fund Ins. Co. v. Refrigerating Co. 162 Ill. 322 [44 N. E. Rep. 746] and 16 Am. & Eng. Enc. Law (2 ed.) 952.

We are of the opinion in this case that there was evidence tending to show that the agent, Barton, represented the company and was authorized to do so in these matters after the loss, and that upon that 'feature of the case, it should have been submitted to the jury. If the company permitted him to represent it in the matter after the loss and gave him apparent authority to represent it, the company was estopped from denying that he did not have authority to waive proofs of loss, the furnishing of which is one of the steps provided b)' the policy in collecting the insurance.

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

We think, further, that there is evidence in this record tending to show that the company did, in fact, deny its liability. The weight of that testimony was for the jury. Mr. Barton testified in some part of the record that Sowards notified him within three or four weeks after the loss that the company would not pay, Sowards being the general adjuster. In other places, Barton says this was later; his testimony is contradictor}?; but where the testimony of a witness is conflicting, especially where the witness is hostile, if there is some part of his testimony tending to support plaintiff’s claim, it raises a question that the plaintiff has a right to have submitted to the jury. The fact that before this policy was* delivered, before the fire occurred, it wks cancelled by the company, so far as they could cancel it, was a circumstance that would be proper to be considered upon the question whether the company denied liability. A jury would have a right to consider that along with all the other circumstances in the case; and the letter from Mr. Sowards to Mr. Barton might perhaps be regarded as an admission on the part of the company that Barton had authority to speak for the company, for he says, “ * * * unless it proves that you by your communications with Mr. Stacy or Mr. Sutton so involved us as to make you-rself liable to us for any claim which can be successfully prosecuted.”

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

We are of the opinion, further, that under the circumstances disclosed by the record in the case, Mr. Barton would be held, as far as this company and the insured was concerned, to have the power and authority of a general agent. No1 notice was given to Stacy of any restriction of authority on the part of the agent. There is no express statement in the policy that he had no authority to receive notice of, and proofs of loss; and where a company, whose headquarters are in a foreign country, across the seas, puts in the hands of an agent policies of insurance, signed and countersigned, and ready for execution and delivery, except filling in the name of the party and a description of the property, and no notice is given that there is any other agent on this hemisphere, we think that he must be held, as a matter of law, and the company estopped from denying his ‘authority to represent the company in all matters necessary to the making of a contract of insurance and pertaining to a loss, in case a loss occurred, and the collection and paying of the insurance money. It is not the law that, under such circumstances as these, a man is obliged, when a loss occurs, to start out and hunt for an agent who would have authority to receive notice or proofs of loss. The agent with whom he contracted for his policy of insurance, to whom he was to pay the premium, and who conferred with him after the fire, was the only agent he knew of that represented this company in this country.

Whatever the rule is as to such a local insurance agent being a general agent of the company, in all matters pertaining to the policy, we think that, under these circumstances, the company is estopped from denying the authority and power of the agent to represent it in matters relating to the loss, and the act of the agent, Barton, was the act of the company, and binds it.

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


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS — STATUTES.
    [Cuyahoga (8th) Circuit Court,
    July 27, 1903.]
    Marvin, Winch and Laubie, JJ.
    William G. Pollock v. Charles W. Toland (City Clerk) et al.
    1. Error in Petition for Annexation Cured by Amendment.
    Section 1557 Rev. Stat. provides that a petition for the annexation of territory may be amended by leave of the county commissioners, and an objection to such a petition, based upon the omission of one of the courses in the boundary thereof, which, by permission of the commissioners, had been amended so as to correctly and exactly describe the territory to be annexed, without embracing additional territory therein, is not well taken; nor is notice of such amendment required.

      2» Corporation Counsel City's Agents in Annexation Proceedings.
    The corporation counsel of a city is its agent by law, and a petition in a proceeding instituted by a city for the annexation of territory, signed by the city’s corporation counsel as such, sufficiently names him as its agent, the provision of Sec. 1589 Rev. Stat. that a petition presented by freeholders residing in the territory to be annexed shall contain the name of some person authorized to act as agent of the petitioners being inapplicable.
    3. Section 155G Rev. Stat. in Part not Applicable to Territorial Annexation to City.
    Section 1556 Rev. Stat., regulating proceedings -for the organization of villages, is made part of the law establishing t*he procedure in case of the annexation of territory to a city only “as far as applicable;” and that part of such section which states that the petition shall be filed with the county auditor, simply provides for a safe and proper place for its deposit, and is not in the nature of notice, nor is it applicable to the case of the annexation of territory to á city, upon the application of the city.
    Status of Municipalities Unchanged Until After April Election of 1903.
    The status of municipal corporations and their governments were unchanged by the new municipal code (96 0. L. 20) until after the April election of 1903. , Hence, a proceeding for the annexation of part of a village to a city, begun by filing a petition with the county commissioners and concluded by filing the final transcript of the commissioners’ proceedings with the city clerk before the date of such election, is not invalid upon the alleged ground that the status of territory sought to be annexed was changed from village to city on December 15, 3902, by force of said enactment.
    ERROR to court of common pleas.
    Hoyt, Dustin & Kelly and C. A. Neff, for plaintiff in error:
    Liability of county commissioners in their quasi corporate capacity to individuals. Hamilton Co. (Comrs.) v. Mighels, 7 Ohio St. 109, 110, 116.
    County commissioners, as a tribunal of limited jurisdiction, when acting under a special power, must act strictly on conditions under which it is given. Queen v. Ellis, 6 Q. B. 501, 516; Striker v. Kelly, 7 Hill 9, 25; State v. Hancock Co. (Comrs.) Tl Ohio St. 183, 190State v. Ottawa Co. (Comrs.) 7 Dec. 34 (5 N. P. 260, 268) ; Miller v. Graham, 17 Ohio St. Hi, 8; Sessions v. Crunkilton, 20 Ohio St. 349 ; Ferris v. Bramble, 5 Ohio St. 109; Beck v. Medina Co. (Comrs.) 9 Re. 108 (11 Bull. 18) ; Anderson v. Hamilton Co. (Comrs.) 12 Ohio St. 635; Dyckmann v. New' York (Mayor), 5 N. Y. (1 Seld.) 434, 439; Embury v. Conner, 3 N. Y. (3 Comst.) 511, 523; Harrington v. People, 6 Barb. 607; Barrickman v. Hartford Co. (Comrs.) 11 Gill & Johns. (Md.) 50; Lamar v. Marshall Co. (Comrs.) 21 Ala. 772, 776.
    Power conferred upon municipal corporations to take private property for public use must be strictly followed. Harbeck v. Toledo, 11 Ohio St. 219; State v. Jersey City, 25 N. J. Law (1 Dutch.) 309, 310.
    Jurisdiction of court should affirmatively appear upon the record in courts of special and limited jurisdiction. Smith v. Pratt, 13 Ohio 548, 550; Harbeck v. Toledo (City), 11 Ohio St. 319, 234; Reed v. Harland, 3 Re. 553 (3 W. L. M. 632) ; 1 Bailey, Jurisdiction Sec. 174, p. 173, n. 1; Ferris v. Bramble, 5 Ohio St. 109, 112; Corry v. Gaynor, 32 Ohio St. 584, 593; Collwell v. Bank, 3 Ohio 229.
    Matters required to be inserted in a record must be-proved by it. Parker v. Miller, 9 Ohio 108, 109, 116; Kellogg v. McLaughlin, 8 Ohi® 114, 116; Fravert v. Finfrock, 43 Ohio St. 335 [I N. E. Rep. 875]; People v. Brighton, 20 Mich. 57, 71.
    Newton D. Baker, Estep, Payer, Carey & Adams and C. A. Judson, for defendant in error.
   WINCH, J.

On May 21, 1902, the city of Cleveland filed its application with the commissioners of Cuyahoga county for the annexation to said city of what is known as the second ward of the village of Glenville.

The commissioners granted the prayer of the petition and filed a transcript of their- proceedings with the city clerk, whereupon plaintiff filed his petition in thp common pleas court of Cuyahoga county, praying an injunction to restrain the city clerk from reporting to the city council and laying said transcript and other papers before it. The prayer for injunction was based upon allegations of errors and irregularities in the annexation proceedings had before the commissioners. No other reasons why an injunction should be allowed were assigned. The common pleas court found no error in said proceedings, and dismissed the petition for an injunction. The case is in this court on petition in error from the common pleas court and involves a re-examination of the ten errors complained of.

We take them up in their order:

“First, that the aforesaid application of the city of Cleveland does not correctly and exactly describe the territory so ordered by the board of county commissioners of Cuyahoga county to be annexed to the city of Cleveland, and that, therefore, said board of county commissioners was without jurisdiction to proceed in the premises.”

This objection is not well taken. It appears from the petition that there was an error in the description of the territory to be annexed, one course in the boundary thereof being omitted. This was apparent from inspection of the plat filed with the petition. The commissioners permitted the petition to be amended by the insertion of the omitted course. No new territory was embraced by the amendment. The amended peti-' tion correctly and exactly described the territory to be annexed. Section 1557 Rev. Stat. says:

“The petition may be amended by their (the commissioners’) leave.”
“Second, that the said petition as originally filed and as amended, did not contain the name of some person to act as agent for said petitioners, and that therefore the said commissioners were without jurisdiction to proceed in the premises.”

This objection is not well taken. The petition was in behalf of the city of Cleveland and was signed by its corporation counsel. He is by law the agent of the city in such matters, and as such is sufficiently named, in the petition. It is true that Sec. 1589 Rev. Stat. provides that a petition presented by freeholders residing in the territory to be annexed shall contain the name of some person who is authorized to act as the agent of the petitioners, but such provision is not applicable when the annexation of territory is sought on application of a corporation. In such case it is unnecessary.

“Third, that said board of county commissioners did not cause said petition tó be filed in the office of the county auditor of Cuyahoga county, and that therefore, the said board of county commissioners was without jurisdiction to proceed in the premises.” ,

It is admitted that the board did not cause the petition to be filed in the office of the county auditor. This objection to the regularity ,of ■.the proceedings is based upon the provisions of Sec. 1556 Rev. Stat.

; It is claimed that the filing with the auditor is in the nature of notice and jurisdictional.

Was it the intention of the legislature to make it such? The intention of the legislature, and the construction to be put upon the law in this case, is e,asily ascertainable from the context. We must read Secs. 1556 and 1557 Rev. Stat. together and give force to all the provisions of both sections. They provide as follows:

“Section 1556. The petition shall be presented to the board of commissioners at a regular session thereof, and when so presented the board shall cause it to be filed in the office of the county auditor, where it shall be subject to the inspection of any person interested; and the commissioners shall then fix the time and place for hearing the petition, and communicate ( the same to the agent of the petitioners, which time shall not be less than sjx_ty days after such filing; and thereupon the agent shall cause a notice, containing the substance of .the petition, and the time and place where the samJe will be heard, to be published in some newspaper printed and of ' meral cii'"cu^at'on in the county, for the period of six consecutive weeks, §\ ’ cause a' C°Py the notice to be posted in a conspicuous place within ana .^ts Qf .proposed corporation, not less than six weeks prior to thé the Ik _ed for suc¿ hearing., time
“Section 15.37'. The hearing shall be public, and may be .adjourned from time to time, and from place to place, according to the discretion of the commissioners, and any person interested may appear, in person or by attorney, and contest the granting of the prayer of the petition, and any affidavits presented in support of or against the prayer of the petition shall be considered by the commissioners, and the petition may be amended by their leave; but if any amendment is permitted, whereby territory not before embraced is added, the commissioners shall appoint another time for the hearing, of which notice shall be given, as specified in the last preceding section.’’

It appears that it is the duty of the commissioners to fi« the time and place for hearing the petition, and communicate the same to the agent of the petitioners, and thereupon the agent causes notice containing the substance of the petition and the time and place when the same will be heard to be both published in a newspaper and posted in a conspicuous place within the limits of the territory proposed to be annexed. The notice to all persons interested is thus provided for. The filing with the county auditor is not to provide additional notice. Any person interested calling at the office of the county auditor would gain no more information con cerning the proceedings than the published and posted notices would give him. Indeed, should he call at the office of the county auditor to inspect the petition lie would there receive no information as to where and when the case would be heard by the commissioners. The auditor could tell him nothing about the progress of the case, and he would be compelled to revert to the published or printed notices or inquire of the commissioners to find out when the hearing was to be. The petition on file with the auditor would give him absolutely no new information, for its substance is required to be stated in the notice. In this case both the published and posted notices set forth copies of the petition in full and stated that the petition and written requests of two-thirds of the voters inhabiting the territory were on file with the commissioners.

There is no provision that the requests of the voters should be filed with the auditor.

Should a person interested desire to investigate these requests he would not find them in the auditor’s office, but must go to the commissioners’ office for an inspection of all papers and filesj We therefore conclude that the law, in providing that the petition be filed in the office of the county auditor, simply provides for a proper and safe place for the deposit of the petition. The commissioners are not in daily session, and in many counties they have no separate office of their own, but hold their sessions in the offices of other county officers — usually the office of the county auditor. In this countjr the commissioners have offices of their own, which are open every day, a clerk being in daily attendance there, having charge of all papers, records and files belonging to the board. Neither the plaintiff in this action nor any other person interested in the proceedings for annexation was in any wise inconvenienced or injured by the failure of the commissioners to file the petition with the county auditor. They would have been much inconvenienced had it been so filed, for they would have found part of the files in one office and part in another.

It will be noticed,, further, that Sec. 1556 Rev. Stat. is found in the chapter governing the organization of villages, made a part of the law establishing the procedure in case of the annexation of territory to a city only “as far as applicable” (see Sec. 1615 and Sec. 1590 Rev. Stat.), and we 'hold that this requirement, i. e., that the petition be filed with the county auditor, is not applicable in an annexation case such as this.

•In the annexation case of Shugars v. Williams, 50 Ohio St. 297 [34 N. E. Rep. 248], Judge Spear, on page 304, calling attention to an objection to the regularity of the proceedings in that case, asks the question: “But is not this rather technical?” And further on, the learned judge says: “In the practical administration of justice mere technical objections, have to give way to substance.” And so in this case, the substance of the law has been complied with, and we find no merit in this objection.

“Fourth, that no notice of the time and place of the aforesaid hearings before the board of county commissioners was given as required by law, and that, therefore, the said board of county commissioners was without jurisdiction to proceed in the premises.”

The law (Sec. 1556 Rev. Stat., above quoted) provides that the agent of the petitioners shall cause notice to be published and posted. It sufficiently appears from the petition that the corporation counsel caused the notice to be given as provided by law, and we have above held that he was the agent of the petitioners.

“Fifth, that no notice was given of the aforesaid amendment of said petition, and that, therefore, the said board of county commissioners was without jurisdiction to proceed in the premises.”

No notice of the amendment was necessary, as no territory not before embraced was added by the amendment. See Sec. 1557 Rev. Stat.

Sixth. The sixth objection depends upon the fifth and fails with it.

Seventh. The seventh objection is not now urged.

“Eighth, that the city council of the city of Cleveland is without jurisdiction to accept or reject the aforesaid application for annexation of territory.”

This objection is based upon the judgment of ouster rendered by the Supreme Court against the former city government of Cleveland. We do not think that that judgment, suspended as it was by the Supreme Court, has anything to do with this case.

Ninth. The ninth objection raises the point that under the new municipal code law, the village of Glenville became a city December 15, 1902, and that as the statutes and the proceedings begun intended the annexation of a part of a village to a city, and there is no provision for the annexation of part of one city to another city, this proceeding is invalid because it was not completed until after December 15, 1902.

The record shows that the annexation petition was filed with the commissioners May 21, 1902, and the final transcript of the proceedings of the commissioners was filed with the city clerk February 23, 1903. On that day and until after the April election following, the status of both the city of Cleveland and of the village of Glenville and their governments, was unchanged by the municipal code law, and the ninth objection is not well taken.

“Tenth, that no petition for annexation and no map or plat was deposited with defendant, Chas. W. Toland, as clerk as aforesaid with said final transcript or at any other time, and that therefore said proceedings are void and of no effect.”

It appears from the bill of exceptions that the petition and plat or map referred to were deposited with the city clerk, February 5, 1903.

Finding no errors or irregularities in the proceedings, the judgment of the common pleas court is affirmed.


author: FRAZIER, J. BURROWS, J.

text:
    CRUELTY TO ANIMALS.
    [Lake (7th) Circuit Court,
    October Term, 1900.]
    Frazier, Burrows and Laubie, JJ.
    Antoinette Muhlhauser v. State of Ohio.
    1. Willful and Intentional Cruelty Essential to Conviction for Cruelty to Animals.
    Acts are not criminal unless the intention accompanies the act, either expressly or by necessary implication from the act itself. Hence, where the owner of animals places them in charge of persons selected with reasonable care and furnishes such persons with the means necessary for the care of such animals it is a sufficient defense to a charge of willful cruelty to animals, brought against him under Sec. 6951 Rev. Stat., to show that he did not know that they were not receiving proper care.
    2. Jurisdiction Acquired Upon Filing Proper Affidavit — Information not Necessary.
    A justice of the peace has jurisdiction, under Sec. 3719a Rev. Stat., to proceed ■with the trial of one accused of violating Sec. 6951 Rev. Stat., prohibiting cruelty to animals, upon the filing of the proper affidavit, and without the filing of an information.
    3. Necessary Allegations in Charging Offense of Cruelty to Animals.
    In a prosecution under Sec. 6951 Rev. Stat. the complaint should specify the acts done or omitted so as to describe and identify the transaction with reasonable certainty. In cases of torturing and tormenting animals the acts of commission or omission which constitute the -offense should be alleged •with the allegation that such acts caused unjustifiable pain or suffering to the animal, unless the acts themselves describing the offense necessarily make it evident that such pain or suffering was caused thereby. It is not sufficient to merely use the words, torture and torment. (Burrows, J.)
    4. Charging Several Offenses in Complaint.
    Several offenses may be charged in the same complaint, but they must be separately stated in such form as to provide a complete and separate setting forth of each offense. (Burrows, J.)
    Tuttle & Tuttle and E. L. Hessenmueller, for plaintiff in error.
    Bosworth 8c Hammer, for defendant in error. '
   FRAZIER, J.

The case of Antoinette Muhlhauser against the state of Ohio is a petition in error to reverse a judgment of the court of common pleas affirming a judgment of John C. Ward, justice of the peace of this township.

A bill of exceptions was taken, setting out all of the evidence, the requests to charge and the charge as given, and numerous exceptions that were taken in the progress of the trial.

The question around which they all cluster is, substantially, a question as to the construction of the -statute under which the prosecution was commenced.

The affidavit is this:

“Before me, John C. Ward, a justice of the peace in and for said county, personally came Sultan St. John, who being duly sworn, according to law, deposeth and saith, that on or before the sixth day of July{ A. D. 1897, at the county of Lake, one Antoinette Muhlhauser and one John Curtiss, whose real name is to affiant unknown, did unlawfully and willfully torture, torment and deprive of necessary food and sustenance certain animals, to wit, five calves, twenty-three sheep and one heifer and two horses, by confining said animals in a certain field there situate for the space of seven days, and did unlawfully and willfully fail to supply said animals while so as aforesaid then and there confined by them with a sufficient quantity of good and wholesome food and water, and by then and there failing and neglecting to shear said sheep, whereby unnecessary and unjustifiable suffering was caused to said sheep, and by then and there fastening about the bodies of certain of said sheep, to wit, two rams, certain cloths in such a manner as to cause urine and excretions from said animals to soak into the wool and skin of said animals and produce a rotten, decayed, maggoty and filthy condition, ancl to cause said rams great pain and suffering.”

This affidavit was filed under favor of Sec. 6951 Rev. Stat., which provides for the punishment of several distinct offenses. But no question of that kind has been made or suggested to us, and in the view we take of this case it will not be necessary for us to analyze and determine that question.

Section 6951 reads:

“Whoever overdrives, overloads, tortures, torments, deprives of necessary sustenance, or unnecessarily or cruelly beats, or needlessly mutilates or kills, any animal, or impounds or confines any animal in any place and fails to supply the same during such confinement with a sufficient quantity of good, wholesome food and water, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhuman manner, or who keeps cows or other animals in any enclosure without wholesome exercise and change of air, or feeds cows on food that produces impure or unwholesome milk, or abandons to die any maimed, sick, infirm, or ■diseased animal, or, being'a person or corporation engaged in transporting .live stock, detains such stock in railroad cars, or in compartments, for a longer continuous period than twenty-four hours after the same are so placed, either within or beyond this state, without supplying the same with necessary food, water, and attention, or permits such stock to be so crowded together as to overlie, crush, wound, or kill each, other, shall be fined not more than two hundred nor less than five dollars, or imprisoned not more than sixty days, or both.”

It is insisted that the justice had not jurisdiction to try and determine the case, and that it was error to proceed to trial upon the affidavit, without filing an information.

Jurisdiction is given the justice by the following sections of the revised statutes. Section 3718 reads :

“Such associations may appoint agents for the purpose of prosecuting any person guilty of any act or cruelty to persons or animals within this state, who shall have power to arrest any person found violating any of the provisions of this chapter, or any other law for the purpose of protecting persons or animals, or preventing any act of cruelty thereto; and, upon making such arrest, such agent shall convey the person so arrested before some court or magistrate having jurisdiction of the offense, within the municipal corporation or county wherein the offense was committed, and there forthwith make complaint, on oath or affirmation, of the offense; but all appointments by such associations under this section must have the approval of the mayor of the city or village in which the association exists, and if it exists outside of any city or village the appointment must be approved 'by the probate judge of the county.”

Section 3718a provides:

“An)'- justice of the peace within his county and city, and police judge or mayor of any city or village within his city or village, shall have jurisdiction in cases of violation of the laws to prevent adulteration of food and drink, the • adulteration and deception in sale of dairy products, and drugs and medicines, and any violation of the law for prevention of cruelty to animals, or under Sec. 6984 Rev. Stat. or Sec. 6984a thereof, as herein enacted.” (Section 6984a prohibits the employment of children in certain occupations.) “If such prosecutions be before a justice of the peace and a trial by jury be not waived,” — there is a provision made in this section for the impaneling of a jury for the trial of the defendant.

I do not desire to read all those sections bearing upon it, but shall merely refer to them.

Section 3719 Rev. Stat. provides that magistrates may authorize an examination of certain places for the purpose of detecting any violation of law in regard to animals.

Section 3719a Rev. Stat. provides that sheriffs, constables, marshals, police officers or any agent for any duly incorporated society for the prevention of cruelty to animals, when they have reason to believe certain facts enumerated, may arrest persons they have reason to believe are about to violate the provisions of Sec. 6952 Rev. Stat., and take them before a magistrate named in Sec. 7106 Rev. Stat., who, upon the proper affidavit being filed, shall hear the witnesses produced under oath, etc.

Section 3720 Rev. Stat. provides:

“An officer, agent or member of any such association may interfere to prevent the perpetration of any act of cruelty to animals in his presence.”

Section 3722 Rev. Stat. provides that:

“A member of any such association may require the sheriff of any county, the constable of any township, the marshal or policeman of any city or village, or the agent of any such association, to arrest any person found violating the laws in relation to cruelty to persons or animals, and to take possession of any animal cruelly treated, in their respective counties, cities, or villages, and deliver the same to the proper officers of such associations.” It then provides for compensation to such officers.

Section 3723 Rev. Stat. provides :

“A person guilty of cruelty to an animal, the property of another, shall be liable to the owner thereof in damages, in addition to the penalties prescribed by law.”

Section 3721 Rev. Stat. provides:

“The conviction oí an agent or employe shall not bar an action for cruelty to animals against an employer for allowing a state of facts to exist which will induce cruelty to animals on the part of such agent or employer.”

.Section 3725 Rev. Stat. provides that:

“Whenever it may be necessary, in order to protect any animal from neglect, any person may take possession of the same; and whenever an animal is impounded, yarded or confined, and continues without necessary food, water, or proper attention for more than fifteen successive hours, any person ma}*, from time to time, and as often as it may be necessary, enter into and upon any place in which such animal is so impounded, yarded, or confined, and supply it with necessary food or water and attention, so long as it there remains, or may, if necessary or convenient, remove such animal, and shall not be liable to any action for such entry; in all cases the owner or custodian of such animal, if known, shall be immediately notified of such action, by the person taking possession of such aniihal; if the owner or custodian be unknown, and cannot be ascertained with reasonable effort, such animal shall be held to be an astray, and shall be dealt with as such.”

I have referred to sections following Sec. 3718a under the rule that in interpreting a statute we may look not only to the words of the section, but to all the provisions of the statute upon the subject.

It is urged that the justice before whom 'the action was tried erred, first, in holding that he had jurisdiction under the affidavit without there being filed an information. The statute provides only for the filing of an affidavit, and no information other than the affidavit is necessary to put the defendant upon trial.

It is claimed the justice erred in the rejection of evidence, and in the charge as given, and in the refusal to charge.

I might consume time by referring to authorities, but I shall content myself with referring to but a few, and without stopping to read them.

The affidavit charges the act as being willful. It was claimed, however, in argument before us and also as the trial proceeded before the justice, that it was neither necessary for the prosecution to show willfulness, nor was it any defense for her tó show that she did not know of the acts complained of; that it was no defense to her to show that she had employed a person who was recommended to her as being kind to animals; that she had provided sufficient food for the animals; that she had no knowledge of their being destitute of the proper food and water, or that she had no knowledge of the circumstances or conditions complained of.

It appears from the evidence that her codefendant, or the person jointly charged with her in the affidavit, had been employed by her as the foreman upon her farm. That relation continued up to the time of the arrest. The testimony shows that immediately after the arrest he left her employ. Mrs. Muhlhauser was alone put upon trial and her late fore^ man and manager was called as a witness for the prosecution.

The testimony shows her farm contained' from one hundred and seventy-five to two hundred acres; but a comparative small portion was that year being cultivated in growing crops. That the animals mentioned in the affidavit were being kept in a small field, in a remote part of the farm; that by reason of drought the water in the field, which ordinarily afforded a sufficient supply, failed; and that for the same reason and because of the number of animals confined in the field the pasture failed; and thereby were deprived of a sufficient supply of food; that on "portions of the farm there was a sufficient quantity of good wholesome pasture and water of a suitable kind for their support.

The testimony shows Mrs. Muhlhauser is a widow lady, who, when the city schools were in session lived in Cleveland, where her children attended school; that during vacations she was upon the farm in Lake county. She testifies that in the latter part of June she was sick in Cleveland, not being able to dress herself; and not upon the farm, except on Saturday before the Fourth of July she had her driver take her to the farm where she sta)red over Sabbath; that she did not go out on Sabbath day and did not see the animals on that occasion; that she had not seen them since about the first of June; that she believed her foreman was looking after them, and would properly care for them.

There are some discrepancies between the testimony of Curtiss and that of Mrs. Muhlhauser. He evidently is willing she should be convicted. He testified that he was in charge of the farm, had its management and the care of the live stock on it, including the animals in question; that he spoke to her about the shearing of the sheep, and she was not willing to pay the price that would have to be given, but wanted the men on the farm to shear them. Fie claimed to be a farmer; was raised on a farm; had shorn sheep on his father’s farm; and he did afterward shear some of these sheep. Yet with five hands employed on this farm, four beside himself, he wanted other help to shear the sheep. She insisted she would rather the men on the farm would shear them and not hire outside help, and they did finally shear them.

He testified that on a Sabbath when defendant was at the house, he drove her in a carriage over the farm, and past the field where the animals were; but does not fix the time. He testifies that at the time the animals were turned in the field there was a sufficient quantity of good wholesome water and pasture of a suitable kind and quantity for their suitable food and support, and that he did not at any time know they were in the field without a sufficient supply of water and food of a suitable kind for their support.

The case was tried by the complainants and the justice’on the theory that if the defendant was the owner of the animals and they had not a sufficient supply of food and water or suffered from other acts of neglect or other acts of cruelty, she should be found guilty. The justice refused to admit evidence offered by defendant to show want of knowledge by her of the matters complained of.

The charge is misleading and not applicable to the facts. It might have been applicable and relevant if the animals had been impounded or confined by her and she had failed or neglected to furnish them with food and water.

The justice, as requested by the prosecution, charged the jury that they “should find the defendant guilty provided they found she was the owner or had control and management of said animals,” and also charged, “It is no excuse that she did not know they were without sufficient food and water; it was her duty to inform herself of their wants, and a failure to do so would result in cruelty to animals, for which you should find her guilty.”

Counsel for defendant requested the justice to charge, “If it be shown by the evidence that the defendant employed help to take charge of her said animals, and in making such employment she exercised ordinary prudence, skill and judgment * * * she is not required by the law of the land to personally inspect or visit them * * * provided she left or placed within their control the means necessary for the proper care of said animals;” which requests the justice refused to give, and did not give either as requested or in substance.

The affidavit charges the acts as done willfully; to be willful, they must have been knowingly and purposely done. The presumption is in favor of innocence. We know of no case where an act is held criminal, unless the intention accompanies the act, either expressly or is necessarily inferred from the act itself. “Ignorantia facti doth excuse, for such ignorance, many times, makes the act itself morally involuntary.” 1 Hales P. C. 42. (Such ignorance must be of fact, not of law.)

To warrant a conviction there must have been both will and act entering into the transaction. The fact that she was wholly ignorant of the matters complained of; that she was free from all knowledge or intention of violating the statute, would constitute a valid defense to the charge. '■

The act made criminal by the statute must be knowingly done. In support of the foregoing propositions I cite, without stopping to read from them: Anderson v. State, 7 Ohio (pt. 2) 250; Birney v. State, 8 Ohio 230; Miller v. State, 3 Ohio St. 475; Farrell v. State, 32 Ohio St. 456.

It is insisted the holdings below are warranted by the decisions under the act to provide against the adulteration of food and drugs. Shauck, J., in State v. Kelly, 54 Ohio St. 166, 178 [43 N. E. Rep. 163], says of that act:

“The act is not a provision for the punishment of those who sell adulterated food or drugs, because of any supposed turpitude prompting such sales or indicated by them. Its purpose is indicated by its title. It is 'an act to provide against the adulteration of food and drugs.’ It is a plan devised by the general assembly to protect the public against the hurtful consequences of the sales of adulterated food and drugs, those consequences being in no degree increased by the vendor’s knowledge, or diminished by his ignorance, of the adulteration of the articles 'which he offers for sale.”

The judgment of the court of'common pleas and the judgment and sentence of the justice is reversed and the cause remanded to the justice for the reasons that the justice erred in rejecting evidence offered by defendant, and in the charge as given- and in refusing to charge as requested, and that the evidence does not support the verdict.

BURROWS, J.

Upon the argument of this, case, our laws for the prevention of cruelty to animals received a large measure of criticism from counsel; not, however, as to the policy or propriety of such laws, but it was charged that these laws had been so carelessly and bunglingly framed as to render their meaning uncertain and their enforcement difficult. Upon a pretty careful examination of our statutes upon this subject we are inclined to think that such criticism is unjust and that these laws were framed with reasonable certainty and can be enforced without any serious difficulty.

To accomplish the end had in view by the legislature, the repression of the brutality of man in his treatment of dumb animals — the use of such general words as “torture” and “torment” were not only proper, but unavoidable. And their meaning as used in these statutes is specifically defined in Sec. 3721 Rev¡ Stat. which provides :

“The words 'torture,’ 'torment,’ and ‘cruelty,’ shall be held to include every act. omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief.”

Section 6951 Rev. Stat. makes the commission and omission of various specific acts criminal, and then, in addition to these specific acts, makes it an offense “to torture or torment”, any animal. Overdriving, overloading, depriving of necessary sustenance, unnecessarily or cruelly beating, needlessly mutilating or killing, keeping in an enclosure without wholesome exercise and change of air, etc., etc., are all separate offenses, and the complaint for such offenses should specify the acts done or omitted so as to describe and identify the transaction with reasonable certainty; while the prosecutions for torturing or tormenting animals should not only use one or both of these words, but should give the acts of omission or commission which constitute the torture or torment of the animal, with the allegation that such acts caused unnecessary or unjustifiable pain or suffering to such animal, unless the acts themselves describing the offense necessarily make it evident that such pain or suffering was caused thereby.

While several of these separate offenses may undoubtedly be charged in the same complaint, they must, however, be separately stated so that there shall be a complete and separate statement of each separate offense.

For an illustration, let us take the complaint in this case and examine it for the purpose of determining, if we can, what offense or offenses, if any, are properly charged therein. It alleges that on July G, 1897, Antoinette Muhlhauser “did unlawfully and willfully torture, torment and deprive of necessary food and sustenance certain animals, to wit, five calves, twenty-three sheep and one heifer and two horses, by confining said animals in a certain field there situated for the space of seven days, and did unlawfully and willfully fail to supply said animals, while so as aforesaid then and there confined by her, with a sufficient quantity of good and wholesome food and water.”

More than one offense is attempted to be described in what I have read, and two more offenses follow in the same sentence which I have not read. So many' different offenses are confused and conglomerated in this one charge that it would be impossible to make any distinct offense out of the entire complaint, except by picking out and putting together phrases here and there, and holding the rest to be surplusage. It is charged that she deprived certain animals of necessary food and sustenance for the space of seven days, which constitutes under this statute an offense; but this charge is qualified by the statement that such animals were deprived of food and sustenance by confining them in a certain field and then failing, while they were so confined, to supply them with a sufficient quantity of good and wholesome food and water. Confining or impounding animals and then failing to supply them with sufficient quantity of food and water, and depriving them of necessary food and sustenance when not confined or impounded, are distinct offenses. In this case the charge of depriving them of necessary food and sustenance is merged, perhaps, in the charge of failing to provide them with sufficient quantity of good and wholesome food and water when they were impounded or confined.

The charge of confining or impounding was not sustained by the proof, and it is doubtful whether'it was well charged by the allegation that the}' were “confined in a certain field.”

There is an attempt to charge cruelty in failing to shear the sheep, and the further charge is attempted to be made that two rams were tortured, but neither of these offenses can be held to be properly charged except by expunging all that precedes these separate charges and connecting each of them with the opening phrase “did unlawfully and willfully torture.”

There was no difficulty in making these four separate charges, to wit: That the accused unlawfully deprived certain animals of necessary food and sustenance; that she impounded and confined certain animals, describing them, for a certain time and then failed to supply them with a sufficient quantity of wholesome food and water; that she unlawfully tortured and tormented certain sheep by leaving them unshorn; and that she tortured and tormented two certain rams in the manner described in the complaint.

I make these suggestions not for the purpose of criticising the complaint in this case, or because it is necessary that anything should be said to supplement the comprehensive opinion of Judge Frazier, but solely for the purpose of promoting, if possible, the proper enforcement of these just and humane laws.


author: PARKER, J.

text:
    BILL OF EXCEPTIONS — MECHANIC’S LIEN.
    [Lucas (6th) Circuit Court,
    July 3, 1903.]
    George F. C. Kloeppinger v. Joseph Grasser.
    1. Presumption Where Bill of Exceptions is Signed and Filed the Same Day.
    Where the record does not show which of two events first transpired it will be. presumed that they occurred in such order as will secure the legality and regularity of the proceedings. Hence, where a bill of exceptions was signed and filed on the same day, in the absence of evidence to the contrary, it will be presumed to have been filed with the clerk before bing signed by the trial judge, as required by Sec. 5301 Rev. Stat.
    2. Section 5301 Rev. Stat. Construed.
    That clause of Sec. 5301 Rev. Stat., which provides that “the clerk of the court, at a time nor less than twelve nor more than fifteen days, from the overruling of a motion for a new trial shall transmit to the trial judge or judges, the bill together with all objections and amendments if any, filed thereto,” is not, so far as the earlier limitation of fifty-two days is concerned, a jurisdictional matter, but is one which the court allowing the bill of ex-, ceptions may insist upon or uót at his pleasure. Hence, a trial judge in his discretion, all parties to a bill of exceptions being satisfied with it, may sign it before the expiration of the fifty-second day after the overruling of a motion for a new trial and the entry of judgment.
    3. Fact or Signing and Allowance Must Appear from Bill Itself.
    Under Sec. 5302 Rev. Stat., as amended 90 O. L. 17, which provides that it shall not be necessary to make a journal entry of the settling allowance and signing of a bill of exceptions, a journal entry is not evidence of such facts, but they must appear upon the bill itself.
    4. Date of Debt and Filing Lien of Subcontractor Fix the Time of the Operation of Mechanics' Lien Statutes.
    Where the indebtedness of the owner to the bread contractor and the statement filed by the subcontractor with the owner in order to secure his lien upon money due the head contractor are of later date than April 18, 1902, notwithstanding the contract between the owner and the head contractor is of earlier' date, the form of the subcontractor’s statement is determined by the act of April 18, 1902, 95 O. L. 210, which repealed Sec. 3193 Rev. Stat, and such statement is not required to be under oath. Nor does such an application of this act give it a retroactive effect so as to render it unconstitutional.
    5. Section 3197 Rev. Stat. Saves Subcontractor's Remedy.
    The right of the subcontractor to enforce, against the owner, his lien upon mqney due the head contractor is saved to him by Sec. 3197 Rev. Stat, although Sec. 3201, providing a specific remedy, was repealed by 95 O. L. 219.
    6. Not Necessary to Aver Other Claims in Petition.
    The petition in an action by a subcontractor against the owner, to enforce . his lien upon money due the head contractor, is not defective in that'it fails to aver that there are no other claims on the fund; such fact may be interposed as a defense or by requiring an interpleader to bring in all parties having an interest in the fund.
    7. Head Contractor, not a Necessary Party, When.
    Where the head contractor has assigned to a subcontractor all his rights against the owner, he is not a necessary party to an action against the owner by the subcontractor.
    ERROR to Lucas common pleas.
    Wertman & Dickey, for plaintiff in error:
    The question relating to the signing of the bill of exceptions by the trial judge before the fifty-two days from the overruling of the motion for a new trial had elapsed, is not a jurisdictional question.
    The statute of April 18, 1902, 95 O. L. 209 et seq., is not retroactive in the constitutional sense. A retroactive statute is one that disturbs and invades vested rights. But in the case at bar, no vested right is disturbed.' The plaintiff below furnished the material and performed the iron and tin work on the building, and Grasser, the owner, had the benefit of it. This is alleged in the' petition and also that Arnsman, the principal contractor, was insolvent, as Grasser then well knew, so that at the ’time when the notice was served upon Grasser, every principle of equity and fair dealing-required him to guard and protect the rights of Kloeppinger, and this he had no right to ignore. He was bound in equity and good conscience to perform this duty. The statute cast no extra burden upon Grasser, and he had no moral right to pay to Arnsman and defraud Kloeppinger out of his money. Lewis v. McElvain, 16 Ohio 341; Johnson v. Bentley, 16 Ohio 97; Baugher v. Nelson, 9 Gill (Md.) 299; Cooley, Const. Lim. 358; Lawrence Ry. Co. v..Mahoning Co. (Comrs.) 35 Ohio St. 1.
    As to the remedy under the act of April 18, 1902, 95 O. L. 209 et seq. McCullom v. Richardson, 12 Re. 440 (2 Handy 274) ; Copeland v. Man-ton, 22 Ohio St. 398, 403; Bullock v. Horn, 44 Ohio St. 420, 424, and 425 [7 N. E. Rep. 737],
    Seney & Johnson, for defendant in error.
   PARKER, J.

This is a proceeding brought to obtain the reversal o.f a judgment of the court of common pleas of this county. The parties stood upon the record in the court below as they do here. A petition was filed, in which Kloeppinger undertook to recover a judgment against Grasser on account of certain transactions, under favor of the provisions of the mechanics’ lien law of Ohio. To this petition an answer was filed, making up certain issues. A jury was impaneled and a witness sworn on behalf of the plaintiff, and then objection was made to the introduction of any evidence on the ground that a cause of action was not stated in the petition, and the objection was sustained, the trial judge taking that view of the matter. Thereupon the court instructed the jury to return a verdict in favor of defendant;'which was done, and upon that verdict a judgment was entered, a motion for a new trial having been overruled."

The first question presented is as to the validity of the bill of exceptions, it being apparent that a bill of exceptions is necessary to bring up the questions which the plaintiff in error seeks to present.

The motion for a new trial was overruled on March 12, 1903, and judgment was entered upon the same day, so that it is apparent that the cause, as to the bill of exceptions, comes under the provisions of the statute found in 96 O. L. 16. That statute, passed October 22, 1902, amends Sec. 5301 Rev. Stat., adds Sec. 5301a, 5301b Rev. Stat., and also amends Sec. 5302 Rev. Stat., repeals former Secs. 5301 and 5302 Rev. Stat., and contains a provision that after January 1, 1903, it shall apply to pending cases.

The bill of exceptions was signed upon March 23, 1903, which was eleven days after the overruling of the motion for a new trial and the entering of judgment. It is contended by counsel for defendant in error that the bill of exceptions should be stricken from the files and not regarded.

First. Because it was not filed with the clerk before it was signed by the judge, as required by this act of October 22, 1902.

Second. Because it was signed by the judge before the time had arrived within which he might sign it; that is to say, that it was signed prematurely.

Tt is alleged that the judge was without jurisdiction in the premises until the arrival of a certain period provided by the statute; that he was as clearly without jurisdiction as he would have been had he undertaken to act after the expiration of the period.

Now as to the first point, that it was not filed before it was presented to the trial judge. Without passing upon whether that is important or essential, we observe that the bill of exceptions was signed on March 23, 1903, and was filed upon March 23, 1903, and we have no evidence in the record or otherwise as to which event first transpired, but the presumption in favor of the legality and regularity of the proceedings would, therefore, save the bill of exceptions against that objection. It would require us 'to assume that it was first filed, if it were necessary to indulge any presumption upon this question.

The other question arises upon the ‘provisions of Sec. 5301 Rev. Stat., see 96 O. L. 16. After providing that the party excepting must reduce his exceptions to writing and file the same within forty days after the overruling of the motion for a new'trial, or(the decision of the court where a motion for a new trial is not filed, it provides that “thereupon the clerk shall forthwith notify the adverse party, or his attorney, of the filing of such bill.” And it then proceeds:

“Within ten days, after such forty days, any other such party may file in the cause any objection or amendment he may propose to the bill. The clerk of said court, at a time not less than twelve, nor more than fifteen days, after forty days from the overruling of the motion for a new trial, shall transmit to the trial judge or judges, the bill, together' with all objections and amendments, if any, filed thereto.”

And that, counsel insists, means that not less than fifty-two days after the overruling of the motion for a new trial, nor more than fifty-five days after that time, the bill of exceptions must be transmitted by the clerk of the court to the trial judge.

And then Sec. 5301a Rev. Stat., see 96 O. L. 16, provides‘that the trial judge, upon receipt of the bill, shall endorse thereon when it was received by him, “and within five days after the receipt of the bill, and the objections or amendments thereto, if any, to correct the bill if necessary and allow and sign the bill and immediately transmit or cause the same to be transmitted to the office of the clerk of the court.” And there are certain other special provisions in the event of the absence of the judge.

I find in a journal entry of the date of the allowance and signing of the bill, to wit, March 23, 1903, the following:

"This day came the plaintiff and presented to the court his bill of exceptions herein, and it being shown to the court that the same has been’ presented to counsel for the defendant within the time limited by law and that the same has been approved by defendant’s counsel, and the court being satisfied that the same' is in all respects true and correct, allowed, signed and sealed the same, and orders that it be made a part of the record herein, but not to be spread at large thereon.”

But, with respect to that, counsel for defendant in error urge that, no such journal entry being necessary (it not being provided for by the statute) we cannot consider it as evidence of the facts recited. therein. The statute upon that subject is very different now from what it was before the act of October 22, 1902. Formerly it was necessary to have the allowance of the exceptions appear upon the journal. Whereas now, by Sec. 5302 Rev. Stat., 96 O. L. 16, it is provided:

“It shall not be necessary to cause an entry to be made upon the journal of the court of the settling, allowance and signing of any bill of exceptions; but the signature of the trial judge, or other judge mentioned in Sec. 5301a, allowing, settling and signing such bill, shall be sufficient evidence of such fact.”

And we are inclined to think that thé objection to' the consideration of this> journal entry as evidence of the facts stated in it, is well taken; that the evidence of what was done about filing it, presenting it to counsel and to the court and about allowing it, etc., should now appear upon the bill of exceptions itself. But, upon this bill of exceptions we find this endorsement, which, it is conceded by counsel for defendant in error, was placed there by them upon the date there stated: “Approved, March 23, 1903. Sene)' & Johnson, attorneys for defendant.”

Still it is urged that that does not meet the objection here; that though counsel may have waived a limitation of time provided for in the statute for their examination of the bill of exceptions, they could not make any waiver that would be binding upon the court, and they could not make any indorsement that would confer jurisdiction upon the court, and they insist that it is a jurisdictional question, and that the court could not act upon the matter until after fifty-two days after the overruling of the motion for a new trial.

Lately we had a like question before us in Wood county, under Sec. 6565 Rev. Stat., as it appears in 93 O. L. 104, which is a statute providing for the taking of a bill of exceptions before justices of the peace. It reads as follows:

“In all cases before a justice of the peace, whether tried by jury or by the justice, either party shall have the right to except to the decisions of the justice upon any matter of law arising in the case. The party objecting to the decision must except at the time the decision is made, and if requested by the party objecting, time shall be given to reduce the exceptions to writing, but not more than ten days, nor less than five, beyond the date, or overruling of the motion for a new trial, or from the date on which the decision of the justice is rendered.”

In the case presented to us the bill of exceptions was prepared and approved by opposing counsel and allowed by the justice before the expiration of five days; it was not done between the fifth and the tenth day, and it was insisted that that was premature; that the justice was without jurisdiction; that he must wait until the expiration of five days, since it is provided that the time fixed shall be not more than ten nor less than five days after certain action by the justice. We overruled that objection, being of the opinion that it was a limitation that the court allowing the bill of exceptions might insist upc or might not, at his pleasure; that it was not a jurisdictional matter at all. And we entertain the same view of the statute here under consideration, that the trial judge in his discretion, all the parties to the bill of exceptions being satisfied with it, may sign it before the expiration of the fifty-second day after the overruling of the motion for a new trial and the entry of judgment, and his action in the premises will be valid. The case is pot like one of the expiration of the limitation of time, for instance, after the expiration of the fifty-fifth day, which by the rulings under the former law, left the court without jurisdiction.

So we overrule the motion to strike the bill of exceptions from the files.

This brings us to the consideration of the main question presented, i. e., whether the court erred in refusing to allow plaintiffs to submit evidence in support of the cause of action which they have undertaken to state in their petition.

In order that the question may be understood it will be necessary to read the petition.

“Plaintiff alleges that on or about the seventeenth day of February, 1902, the defendant, Joseph Grasser, entered into a written contract with one John V. Arnsman, as principal contractor, for the furnishing of material and the construction by said Arnsman of the building known as the Bellview Park Pavilion, in the city of Toledo, Ohio, for which the 'said defendant was to pay the sum of $13,541.

“And in addition thereto, afterwards, at the request of the said defendant, said Arnsman did extra work and furnished extra material of the value of about $400.

“That on or about the first day of March, 1902, said John V. Arns-man, as such principal contractor, entered into a written contract with this plaintiff, by the terms of which this plaintiff agreed to furnish the material and to do the tin and galvanized' iron .work on said building; and foi which said Arnsman agreed to pay this plaintiff the sum of $1,400, as soon as said work was completed, or in progress.

“That inis plaintiff did, within a reasonable time thereafter, perform said contract upon his part in a good and workmanlike manner and to the' full satisfaction of the architect of said building; that during the progress of said work, some time in the month of May, 1902, this plaintiff demanded of said Arnsman an estimate of the work done b}^ him and the money due therefor; that said Arnsman, in pursuance of such demand, secured from the architect of said building an estimate of the material furnished and labor performed by this plaintiff, to the amount of about $1,000, and on said estimate the money was paid by said defendant to said Arnsman for this plaintiff, but no part of it was paid to this plaintiff. Thereupon about the twelfth day of June, 1902, this plaintiff notified the defendant in writing of all the facts above stated relating to the .contract of this plaintiff with Arnsman, the demand made by the plaintiff, the estimate, the payment of the money to said Arnsman and the fact that this plaintiff had received no part of it; and then in the same writing notified said defendant to withhold from the money remaining unpaid upon his said contract with said Arnsman, the contract price for this plaintiffs labor and material on said building, the sum of $1,400, the same being for the tin and galvanized iron work.

' “That said Arnsman, the principal contractor, did not within ten days thereafter, nor at any other time, in writing or otherwise, notify this defendant that he intended to dispute the claim of this plaintiff, but upon the other hand acquiesced in and consented to the correctness of the same; that said Arnsman was then wholly insolvent, as the said defendant well knew; that said defendant had at the time of receiving said notice remaining in his hands unpaid on said contract the sum of $3,500; that the work on the contract of this plaintiff was completed on June 25,1902; and that on June 19, 1902, there was paid to this plaintiff on said contract, by virtue of said notice, the sum of $500, and that no other or further sum has been paid thereon.

“That there remains due to this plaintiff thereon the sum of $900, together with interest thereon from June 25, 1902.

“That on the twenty-third day of October, 1902, said Arnsman gave to this plaintiff a written order on said defendant for the sum of $900, to be paid out of the money due on the contract .price of said building; that the same was then duly presented by this plaintiff to said defendant for payment and payment thereof was refused by said defendant, although said contract with said Arnsman was fully performed and more than enough money remained in defendant’s hands, due on said contract, to pay plaintiff’s claim.

“Wherefore said plaintiff prays judgment against said defendant for said sum of $900 with interest thereon from June 25, 1902, and for costs of suit, and for such other and different relief as is just and equitable.”

Now it will be observed that the action is by a subcontractor who undertakes to recover from the owner of the building a part of the money due to the head contractor, a proceeding under the mechanics’ lien law of the nature of a garnishee process.

To this petition an answer was filed, denying liability, upon various grounds. This answ.er need not be noticed, because of the form in which the question is presented. The ruling of the court below proceeded upon the theory that an affidavit to the statement furnished by the subcontractor was required by the statute upon the subject; that Sec. 3193 Rev. Stat., as amended April 13, 1894, or as it stood prior to that day, required a sworn itemized statement, and applied to the plaintiff’s case. It will be observed that the petition does not aver that the statement furnished was sworn to. The statute in force did not require a sworn statement. The statute in force was passed on April 18, 1902, and is found in 95 O. L. 210, 211. But the theory of the court and of counsel for defendant seems to have been that since the contracts between Grasser and the principal contractor and between the plaintiff and the principal contractor were of earlier date than April 18,1902, therefore the act of April 18,1902, did not apply. They seem to have proceeded upon the theory that if it were made to apply it would be given a retroactive effect that would not be admissible and would make it unconstitutional. Though the contracts were of earlier date than April 18, 1902, the notice was of later date; the indebtedness of the owner to the head contractor was of later date, and so this statute of April 18, 1902, would not act upon the contract if given the effect asked for by the plaintiff. It acts upon the state of facts at the time existing. In. effect it is not retroactive. Giving to it that effect does not make it obnoxious to the constitutional provision on the subject of retroactive laws. As I have said, the statute provides for a remedy in the nature of a garnishee process — finding A indebted to B and B indebted to C, it enables C to reach a fund due to B in the hands of A. That is the result of the process of garnishment, and it is the effect of these provisions of the mechanics’ lien law with respect to the remedies of subcontractors. But even assuming that the giving of the statute effect and making it applicable to this case would make it in some respects retroactive in its operation, it would not necessarily be unconstitutional for that reason, and it would not necessarily be wrong to give it that operation. In Cuyahoga Falls Real Est. Assn. (Tr.) v. McCaughy, 2 Ohio St. 153, it is said:

“Retrospective laws that violated no principle of natural justice, but that, on the contrary, were in furtherance of equity and good morals, were not forbidden by the constitution of 1802.”

And the same, of course, may be stated of the constitution of 1852. In support of this is cited Lewis v. McElvain, 16 Ohio 347 and Johnson v. Bentley, 16 Ohio 97, Acheson v. Miller, 2 Ohio St. 203. Another case which has been referred to on this subject is Baugher v. Nelson, 9 Gill (Md.) 299, where it is said, amongst other things:

“But the vested rights thus guarded are those only to which a party may adhere, and upon which he must insist without violating any principle of sound morality; there can be no vested right to do a wrong, or violate a moral duty, or resist the performance of a moral obligation.”

Cooley, Const. Lim. 358, contains some discussion upon this subject, and the case of Lawrence Ry. Co. v. Mahoning Co. (Comrs.) 35 Ohio St. 1, lays down this rule:

“The legislature cannot create a liability for acts' as to which there was no liability when they were committed; but where a remedy exists, the legislature may change it, as well as to acts theretofore as those thereafter done.
“The act of March 7, 1873, which provided a new remedy against those who placed obstructions in public highways, applied as well to sxisting obstructions as to those subsequently placed therein.”

And the case itself presents a very good illustration of the 'doctrine. I read from the opinion on pages seven and eight:

“The legislature, it has been said, cannot create a liability for acts as to which there was no liability when they were committed. . * * * But ‘A party has no vested right in a defense based upon an informality not affecting his substantial rights.’ Cooley, Const. Lim. (4 ed.) 461. At least, it is perfectly clear that if a liability exists, the form of the remedy may be changed, or the existing provisions supplemented by other legislative enactments. Such an obstruction as that created in this case is, by the act of 1857 (54 O. L. 130), reenacted in 1877 (74 O. IJ. 240), declared to be a nuisance, and the person erecting or maintaining it is liable to indictment, chargeable with the expense of removing it, and moreover liable to the suit of any person injured by such nuisance in his health, comfort, property or the enjoyment of his estate. * * *
“It is clear, therefore, that for this obstruction there was, at the time it was created, a remedy provided by law; ánd we think the general assembly might well provide, as it did by the amendment of 1873, this new and additional remedy, and that the amended act applied to obstructions already created. Nor can the statute of limitations apply to such a case as this, for the reason's stated in the opinion in Little Miami Ry. Co. v. Greene Co. (Comrs.).”

Now, as I have pointed out, the old act contained substantially, the same remedy for the subcontractor, but it required that the itemized account should be sworn to. The new act differs from that only in omitting the requirement that the statement shall be sworn to. But even if this were an entirely new remedy given to the subcontractor, we cannot see how this principle underlying the constitutional provision on the subject of retroactive laws can be invoked. The defendant cannot insist that he had a constitutional right to pay his money to the head contractor after it had been earned, rather than to the subcontractor to whom the head contractor had become indebted, even though the subcontractor pursued the methods provided by law for reaching the fund. The law requiring payment to the subcontractor lays no new obligation upon the head contractor and it imposes no new burden iipon him. He is not required to pay any more or to pay in a more burdensome way — he is only required to pay the same amount in such a way as to work out a natural equity in favor of the subcontractor to whom the money is due. We do not regard this provision of the statute as remedial in the sense in which the word is used in Sec. 79 Rev. Stat., and, therefore, it may very well apply to the state of facts which then existed', although arising upon contracts theretofore entered into.

But it is said under this new act the plaintiff has no such remedy as he invokes. The law, as it stood before, contained this provision, in- Sec. 3201 Rev. Stat.:.

“If a head contractor or subcontractor neglect or refuse to pay, within five days after his assent to or adjustment of any claim, the amount thereof, and costs incurred, to the subcontractor or material man, laborer, mechanic, or person furnishing materials the owner, board, officer or clerk or agent thereof, shall pay when due, the whole, or a pro rata amount thereof as the case may be as above provided out of subsequent payments, and on his failure so to do, within ten days thereafter, the subcontractor or material man, laborer, mechanic or person furnishing material may recover against the owner, in an action for money had or received, when due, the whole or a pro rata amount, as the case may be, of his claim or estimate, not exceeding in any case the balance due to the principal contractor.”

3Mow that gives a specific remedy, by an action at law to recover the amount, in very clear and exact language; but, by the act of April 18, 1902, which modifies a great many of the provisions of the mechanics’ lien law, Sec. 3201 is repealed, and there is no corresponding section in the new law, that is to say — there is no section having that number, and there is no provision in the new law in the same language; but we do find in the new law various provisions upon the subject of the remedy of the subcontractor. We find in Sec. 3184 Rev. Stat., see 95 O. L. 209, this provision:

jv “The owner, part owner, or lessee shall not be liable to the subcontractor, or material man, or laborer for any greater amount than he contracted to pay the original contractor, but the risk of all payments made to the original contractor, after such owner, part owner, or lessees shall have received the notice before mentioned, shall be upon such owner, part owner, or lessee, and no payments made to any contractor after receiving-said aforesaid notice shall defeat any lien of any subcontractor, material man, or laborers.”

And in Sec. 3194 Rev. Stat., see 95 O. L. 211, is this provision as to the effect of the notice and the failure to dispute the claim:

“And thereupon subsequent payments under the contract shall be applied by such owner, his agent or attorney, pro rata among the lien-holders, and all such payments made by the owner, agent or attorney, shall be considered as part payment on said contract between the owner or contractor.”

Then Sec. 3195 Rev. Stat., provides specifically for a subcontractor’s lien upon the premises. It is urged that these provisions which I have read all pertain to the lien that a subcontractor may obtain, and they are? open to that construction, but, in Sec. 3197 Rev. Stat., 95 O. L. 212, we have a provision which we think is not open to that construction, and one that indicates, as we think, the purpose of the legislature to save to the subcontractor the remedy of an action at law, which was given to him under the old W ?

“The owner of property on which a lien has been taken under the foregoing sections may notify in writing the owner of a lien or his agent, or attorney to commence suit thereon; and if he fails to commence the suit within sixty days after receiving such a written notice, the lien shall be null and void; but nothing herein contained shall prevent the claim from being collected as other claims are collected by law.”

And we think that has the effect of saving to the subcontractor his remedy by an action at law against the head contractor. Entertaining that view of the matter, we hold that the court of common pleas erred in not allowing the plaintiff to introduce his evidence in support of his clainj.

It is said that the petition is defective in that it fails to aver that there are no other claims on the fund; but we think that if there are other claims, the defendant might interpose that by way of defense, or by requiring an interpleader to bring in all parties having an interest in the fund.

It is said that the head contractor should have been made a party. The petition avers that the head contractor has surrendered all right to this fund; that he has made an assignment of it to the subcontractor, so that his presence does not appear to be necessary; but, if the defendant still entertains the opinion that the head contractor should be brought in, he can have him brought in by interpleader.

It is said, too, that it appears by the petition that the claim of the plaintiff has been paid because of the payment of the $500 to him and the payment of $1,000 by defendant to Arnsman for the plaintiff. But we do not think the petition is fairly open to that construction. It is quite evident that the pleader does not mean to aver that the $1,000 was paid to one authorised to receive payment for plaintiff. He is simply reciting the fact that the $1,000 should have been paid to plaintiff, but never came into his hands, and that there is still enough money in the hands of Arns-man to discharge his claim. We think the petition states a good cause of action, and on account of the error which we find in the record, the judgment of the court of common pleas will be reversed and the cause remanded.