text:
    DEFECT AS TO PARTY DEFENDANT IN REVIEWING COURT.
    Circuit Court of Lucas County.
    Samuel S. Ricard v. George F. Porter.
    Decided, January 23, 1909.

      Proceedings 'in Error■ — Essentially a New Action in the Court of Review — Name of- Real Defendant Omitted — -Court Without Jurisdiction to Cure the Defect.

    Failure to name as the defendant in error the executor of the deceased defendant below can.not be cured by amendment of the petition in error after time has run for the beginning of proceedings in error.
    ■ William, A. Gill, for plaintiff in error. •

      Potter ■& Potter., contra.
    Wildman, J.; Parker, J., and Kinkade, J., concur.
    Motion to dismiss petition in error.
   This case in the court below was begun by Samuel S. Ricard against George Porter, but, Porter having died pending the suit, .it was revived as against his executor, Henry E. Fletcher. Instead of bringing the proceeding- in error in this court against •the executor as defendant in error — the judgment having been in his favor in the court below upon his substitution for the original party who had died — a proceeding was instituted in this court bearing the same title that the ease had borne.in.-its inception in the court of common pleas, to-wit, Samuel S. Ricard against George F. Porter. Counsel seem, by some inadvertance, to have overlooked the fact that a proceeding in error is essentially a new case, requiring a petition and service of summons, or waiver thereof by the defendant; that it is not like an appeal case which goes into the appellate court bearing the same title that it had in the court below, and without the necessity of service of process of any kind upon the defendant.

The case, in some of its features, is very similar to one which we had in the Circuit Court of Huron County, where a proceeding in error was presented to us against a party who had died after the rendition of a judgment in the court below. The action to reverse was brought in the circuit court with the same title that the case below had, and the attorney who waived the issue or service of summons in error was not the attorney for the legal representative of the deceased. In the present case, the attorney who waived summons was in fact an attorney for the executor. We think, however, that the cases are not essentially different in principle. The waiver of service is of no more importance or effect than a service of summons on the attorney would have been, It is but a waiver of service, or waiver of issue and service, and the question is substantially as if a man who had been attorney in the court below for the executor were served with summons in a proceeding in which the executor was not named as a party. To cure this trouble, plaintiff in error asks leave to amend his petition by adding or substituting the name of the executor for the name of the decedent.-

We have not befor.e us the question as to what the court might do if the statute of limitations as to petitions in error had not run against the beginning of such ■ a proceeding. The statutory time having . elapsed since the judgment of the common pleas court. We have examined the authorities — which are somewhat meager — bearing upon the question, to determine whether we have jurisdiction upon which we can base any authority to permit the amendment of the petition — which we should be glad to do if we had the power to do it — but we are confronted with the ease of Kennard v. Kennard, 35 O. S., 660, where a situation arose not precisely the same, but so near it as to throw great light upon our duty. The syllabus is as follows:

“Proceedings in error can not be instituted in the name of a deceased party; if the heirs or legal representatives of such party seek to institute such proceedings, they must do so in their own names. ’ ’

The petition in error in that ease — a case which went up from Butler county to the Supreme Court — was filed on the 22d day of September, 1879, to reverse a judgment rendered by the- district court of' Butler county, April 21st, 1877, in favor, of George F. Kennard against George G. Kennard. At the time of the filing of the petition in error the nominal plaintiff in error was deceased he having died on the 8th of April, 1878. It will be noticed that he died before the rendition of the judgment in the court below— he died on the 8th of April and the judgment was not rendered until the 21st. Mary Ann Bartlow and others, his heirs at law, now moved the court to revive the proceedings in error in their names. The decision is per curiam. It is very short and I will read it:

‘ ‘ George G. Kennard, the alleged plaintiff in error, having died before the filing of the petition in error, the attempt to institute a proceeding in his name was ineffectual. To constitute a proceeding in error, there must be a plaintiff in error. If there is no plaintiff in error, the court acquires no jurisdiction of the cause. If the heirs or legal representatives of a deceased party seek to institute proceedings in error, they must do so in their own names and not in the name of the deceased. Motion overruled and cause stricken from the docket.”

This was a case where the nominal plaintiff in error was the person deceased. In. the case before us it is the nominal defendant in error, but the language of the Supreme Court and the reason for it manifestly are as pertinent to the one ease as to the other. It is as essential that there should be a defenckmt as that there should be a plaintiff, and if there is no defendant in error, then upon parity of reasoning, the court has no jurisdiction of the case. The court there refused the application of the legal representatives to reverse the proceeding in error in their names, and that is substantially the same as the attempt which is made here to amend the pleading by substituting the name of the executor for that of the decedent. We see no escape from this case, and indeed, before discovering it, we felt strongly impelled by our own reasoning to arrive at the same conclusion.

The case of Kennard v. Kennard, which I have just read, was approved, without report, in 62 O. S. at p. 633. The case of Smetters v. Rainey, 14 O. S., 287, is somewhat in point and it was approved in Burke v. Taylor, 45 O. S., 444, and should be read in connection with the case to which I have referred. The ease of Abairs v. Merchants National Bank, 3 Circuit Court Reports, 290, decided by the circuit court of this circuit, the opinion being pronounced by Judge Scribner, is also to some extent in point. I cite it without reading it.

Our judgment is that the motion for leave to amend the petition should be overruled and that the motion filed by the executor for a dismissal of the petition in error should be sustained.


source: Caselaw Access Project

license: Public Domain

text:
    AS TO VALIDITY OF ORDER. FOR. INSPECTION OF DOCUMENTS.
    Circuit Court of Lucas County.
    Channing W. Richards, as Receiver of Aetna Fire Association of Cincinnati, v. Herman Bunte.
    Decided, 1908.

      Inspection of Books of a Corporation — Limitations on Authority of Court to Require that Permission to Inspect he Given — Where the Inspection Should he Made — Recessary Findings Upon which to Base an Order for an Inspection — Sections 11552 and 11555.
    1. It is not competent for a court in making an order for inspection of books, papers and documents, to require that they be removed for that purpose to some place other than where they are ordinarily, properly and lawfully kept, and particularly to require that such books and papers be taken to some distant point for inspection.
    2. And further, an order requiring the production of books and documents in court at the hearing, raises no presumption of compliance with the statutory requirements (though the journal entry recites that the court “was fully advised in the premises” before making the order) where there is no declaration in the motion or finding by the court that said books and documents contain evidence pertinent to the issue; and in view of the extraordinary-character of the order made in the present case, and the fact that it would probably be oppressive, it will be reversed.

      V. L. Beall and Patterson A. Reece, for plaintiff in error.

      E. O. King, contra.
    Parker, J.; Wildman, J., and Kinkade, J., concur.
   It appears from the record presented here that the Aetna Fire Association of Cincinnati had become insolvent and that its affairs were being wound up in the Court of Common Pleas of Hamilton County, the residence or situs of the corporation; that in pursuance of these proceedings suit was- brought by the receiver against Herman Bunte, to recover certain premiums which it is alleged were due from him to the plaintiff on certain policies issued to him by the company. Herman Bunte answers, defending against this claim on a variety of grounds. . The case. has been in this court before, on error, the error complained of then being the sustaining of a demurrer to the petition and thereupon entering judgment for defendant. The court reversed that judgment of the court of common pleas, and now we have another question presented.

In the court of common pleas the defendant filed a motion for an order requiring the plaintiff to produce certain books and papers upon the trial. The motion started out, after the title, as follows: “Now comes the defendant and moves the- court for an order on the plaintiff in this cause requiring him to have and produce at the trial of this cause for the úse and benefit of the defendant the following books, paper writings and documents, to-wit:” and then is set forth, in six separate paragraphs, a description and enumeration of the boobs and papers desired, and it is said upon the hearing, and is not questioned — indeed we think it appears from an inspection of the motion itself — ■ that the books and papers required would be not only numerous and bulky, but that it would require the production of a large part, if not all of the records and papers of this association.

When the matter came on to be heard, the following order was made by the court of common pleas:

“This day the 24th day of April, 1907, this cause came on to be heard upon the motion of the defendant for an order requiring the plaintiff to produce certain books, paper writings and documents in his possession and described in said motion, and to have the same at the trial of this cause for the use and benefit of the plaintiff, and the court having been fully advised in the premises, and having heard the arguments of both parties by their counsel respectively for and against the- granting of said motion, find that said motion is well taken, and that said books, paper writings and documents should be subject to the inspection of the defendant and his attorneys in Toledo, Lucas county, Ohio, at least three days prior to the trial of this cause, and should'be produced by the plaintiff at the trial of this cause for such use by the defendant as may be proper at the time under the laws of the state of Ohio.
“It is therefore ordered by the court that the plaintiff, Channing W. Richards, as receiver of the Aetna Fire'Association of Cincinnati, Ohio, have and produce the books, paper writings and documents described in said motion at some proper and suitable place in- the city of Toledo, .Lúeas county, .Ohio, at least three days before the trial of this 'cause, for the examination and inspection of the defendant and his attorneys; but it is not ordered that the same shall pass out of the possession of said receiver or his attorneys.
“And it is further ordered that said plaintiff have and produce said books, paper writings and documents on the trial of this cause for such use therein by the defendant as at the time shall be proper under the laws of the state of Ohio. To each, every and all of said findings, and to each, every and all of said orders of said court, and the granting of said motion, plaintiff then and there duly excepted.
“Plaintiff further excepted to the hearing and granting of said motion, for the reason that notice in writing of the hearing of said motion was- not served on plaintiff until April 23d, 1907, and plaintiff was not prepared to argue said motion.”

It is said, in argument, that the notice of the motion was served upon local counsel here upon the 23d of May, and the matter was heard upon the 24th, and local counsel had no opportunity to communicate with the chief counsel, who was the only one prepared to represent this matter properly on behalf of the company, before the court. Complaining of this order and of the action of the court in taking the matter up so speedily after the'notice, the plaintiff in error made a motion to have this order set aside, and it appears from the journal under date of the 2d of May, 1907, that that motion was heard upon evidence, and some of the evidence educed is mentioned in the journal entry, but the court then adhered to its former ruling and overruled the motion to set aside.

Under date of the 17th of May, 1907, we have this entry:

“This day this cause came on regularly for trial, and in open court came the defendant and represented unto the court that there had been filed on the 4th day of May, 1907, by the plaintiff in this action a certain declination wherein he refuses to comply with the former orders of this court in regard to the production of certain books and paper writings at the trial of this cause, and that the plaintiff now refuses and wholly fails to produce said books and paper writings in compliance with said order, and the defendant thereupon moved the court to give judgment for the defendant dismissing this action according to the statutes for such cases made and provided. And the court having heard the argument's of counsel and having been fully advised in the premises find that said representations are true, and that said motion is well taken, and that the same ought to be and the same hereby is granted. ’ ’

Then followed the dismissal. It will be observed that in the first order of the court which I have read, the court went beyond the motion, or the request of the motion; it not only ordered the production of these books and papers at the trial, but it ordered that the plaintiff in error bring these books and papers to some suitable place in the city of Toledo, three days before the trial, and allow the defendant in error to there and then inspect them —.which was something not asked for in the motion.

We think it is not competent for the court in ordering an inspection under Section 5290, Revised Statutes, to require a party to remove his books, papers and documents from the place where they are ordinarily, properly and lawfully kept to some other place to permit the opposite party to there inspect them. It would not be competent for a court to require the plaintiff in error in this case to bring all the papers and books up from Cincinnati in order to make it convenient for the opposite party to inspect them here in the city ui Toledo. If the right to inspect them existed and were to be enforced, it would devolve upon the defendant in error to go to the place where the records of the company were properly kept and deposited and there make the inspection. But not much is claimed for that part of the order by the defendant in error. It is said that the other part of the order, to-wit, the requirement that the books and papers would be present here upon the hearing was properly made and should have been complied with, and that the court, under Section 5289, R. S., was authorized to do as it did in dismissing the ease because that part of the- order was not complied with. I have read part of the last journal entry, and what has been said about the declination and refusal that was put on file. Looking to that, we find that the plaintiff in error did not decline to furnish all books and papers required by this order, but that certain books which were in the hands of the receiver and’which the receiver had been ordered by the Court of Common Pleas of Hamilton County to keep there, in that c'oiinty,' subject' to the inspection of everybody interested in the' company, were the ones which the plaintiff in error declined to produce, giving as his reason that he could not do so; that he was subject to the orders of the Court of Common Pleas of Hamilton County, and that that court had required by its order that he should keep those books there, and what purports to be a copy of the order is set forth in the record here.

But we have no bill of exceptions here, disclosing what evidence was in fact produced upon the hearing of these various matters in the court of common pleas, and, therefore, we must disregard certain affidavits referred to here, and certain journal entries from the Court of Common Pleas of Hamilton County, and must look to that which is strictly a part of the record, without a bill of exceptions. We have, then, the motion, requiring the production of these books and papers, and the order of the court upon such motion. Now it is said in the order that the court was ‘‘ fully advised in the premises; ” it is said, therefore that it should be presumed in support of the order and judgment of the court in this matter, that the court was duly advised by evidence and that it was thereby advised of each and every fact essential to the validity of its order.

In view of the requirements of the statute as to the showing that must be made in order to justify the making of such an order, to-wit, that the writings contain evidence pertinent to the issue; in view of the fact that this motion does not declare that the writings contain evidence pertinent to the issue, and that the court does not find that the writings contain evidence pertinent to the issue, we are of the opinion that we should not go so far as is asked by the defendant in error in the way of indulging presumptions in support of this order. It seems to us like a most extraordinary order under the circumstances, and one likely to be very oppressive, and that we should hold, as we do, that in the absence of any declaration in the motion, in the absence of any showing in the record, in the absence of any finding on the part of the court, that these paper writings contained evidence pertinent to the issue, and in the absence of any clear declaration that the matter was heard upon evidence, or that the court was duly advised — otherwise than by the motion and the arguments of counsel specifically referred to — that this order can not be upheld. It will be reversed.

There are other sections of the statutes than those I have referred to that are in pari materia, especially those upon the subject of discovery, and under Section 5293 — or perhaps it is intended to be under all these sections, but following Section 5293 — in Whittaker's Annotated Civil Code, we find a number of decisions referred to, which we have examined and which throw considerable light upon the question as to the showing that must be made in order to justify such an order. They are: 13 Howard, 425; 1 Duer, 660; 25 Howard, 522; 9 Boswell, 595; 26 Howard, 177; 10 Abbott, 340; 7 Hun, 236; 7 Robertson, 77 (30 N. Y. Superior Ct. Rep.).

This section as to the production of documents was under consideration by this court in the ease of John Arbuckle et al v. The Woolson Spice Co. et al, reported in 21 C. C. Reports, at page 347. By looking at that case counsel will discover that this court was careful to find from the evidence that the documents and papers desired to be produced, or inspected, contained evidence pertinent to the issue; and in the New York Practice Reports to which I have referred, the courts are careful, very careful, upon-that point, in order that they may conserve the beneficial purposes for which this statute is intended, and that it may not be used without authority, or oppressively. I shall not take time to read from these authorities, except a paragraph or two. I read from 7 Hun., 236, Brooklyn Life Ins. Co. v. Nathaniel A. Pierce, where it is said;

“On a motion for an inspection of papers, the moving affidavit alleged the nature of the action; the fact that several letters had been written to the plaintiff; that they constituted the-agreement set up in the answer; that they were material and necessary to the defense, and contained evidence relating to the merits, and that without them defendant could not safely proceed to trial. Held, insufficient. Facts should be given which will enable the court to determine for itself whether the evidence is material.”

And I read a part of the syllabus, only, in the case of Harriet Merguelle, Administratrix, etc., v. The Continental Bank Note Co. of the City of New York, 7 Robertson, p. 77:

‘ ‘ An affidavit on which a motion for a discovery of books and papers is made, which merely alleges that there are in the possession of the' defendants various letters, receipts and accounts, in the hand-writing of the moving party, ‘containing evidence in relation to the subjeet of the action,’ and ‘to the merits of the action’ is not sufficient to enable the court to pass upon the question whether the contents of such boobs and documents are at all material as evidence in regard to any issue in the action. The plaintiff is not entitled to the inspection of all such boobs, merely to obtain information how, or in reference to what matters to get other evidence.
‘ ‘ Nor is it sufficient that such boobs may possibly furnish such evidence. The documents must be set forth with sufficient precision to enable the court to determine for itself, whether they ought to be produced, as containing material evidence.”

As I have already pointed out, it is not even declared in the motion here that these papers and documents contain evidence pertaining to the issue, nor is there any such finding by the court, much less is there evidence of a showing that .they contain-evidence pertinent to the issue.

For the reasons stated, the judgment of the court of common pleas will be reversed and the cause remanded.


text:
    DEFENSES UNDER. A POLICY OF ACCIDENT INSURANCE.
    Circuit Court of Lucas County.
    Pacific Mutual Life Insurance Co. of California v. Charles W. Barnes.
    Decided, February 26, 1910.

      Insurance — Schedule of Warranties Equivalent to Answers to Interrogatories — insufficient Evidence as to the Furnishing of Proof of Loss — Reviewing Court Will Not Render Final Judgment Upon Reversal for Overruling Motion for an Instructed Verdict, When— Section 3625, Revised Statutes.

      1. A schedule of warranties attached to a policy of insurance, while no part of the contract of insurance, will nevertheless be regarded as counter agreements on the part of the insured made in consideration of ’the issuing of the policy; and such warranties are within the contemplation of Section 3625, R. S., providing that no answer to an application for insurance shall bar recovery, unless it appear that it was willfully false, and but for such answer the ■ policy would not have been issued.

      2. An allegation in the answer of an insurance com-pany that certain statements made by the insured were willfully false, with a denial thereof in the reply, imposes upon the defendant the burden of providing such falsity, and the matter becomes a question for the jury upon the evidence.
    3. Evidence that proofs of loss were placed in a sealed envelope, directed to the insurance company at its home office, and that the envelope was thereafter placed in the hands of the local agent of the company, with no proof that it was ever deposited in the mail, is not sufficient to meet the requirement of the policy that, within twenty days from the happening of the accident, proofs of loss must he filed with the company or furnished in due form at its home office, and in such a case a motion to arrest the case from the jury should be sustained.
    4. But inasmuch as discretion rests in a trial court to permit a technical lack of evidence to be supplemented by additional evidence, or in a case of this character by the filing of an amendment alleging waiver of proofs of loss, the order of the reviewing 'court will be the remanding of the case for a new trial, rather than a final judgment in favor of the defendant company.
    "Wildman, .J.; Parker, J., and Kinkade, J., concur.
   Charles W. Barnes sued the plaintiff in error in the court of common pleas upon an accident insurance policy, and obtained a verdict and judgment for $1,500 and some interest. To reverse this judgment a proceeding in error was instituted here. We have had before us at the present term another proceeding between these parties for a reversal of another judgment, and perhaps some of the principles announced in that case have application to the case at bar. It is urged, however-, that the cases are not in all respects upon the same footing, and that the judgment of the court in this case should be reversed upon some grounds not urged in the other.

The defendant company, for defense against the claim of the plaintiff, insists that he is not entitled to recover, first by reason of breaches of certain warranties alleged to be incorporated in the policy of insurance attached to the plaintiff’s petition and made part thereof; second, that the plaintiff has- offered no proof of one fact vital to his recovery, to-wit, that proofs of the accident, after preliminary notice to the company, were filed with the company or furnished to it at its proper office at Los Angeles, California, within twenty days from the time of the accident. It is claimed also that the plaintiff’s injuries were not caused by accidental means, but that they were voluntarily incurred by him, and further that it does not appear that the loss of the plaintiff’s arm, which was the serious injury sustained, arose solely from an accident. I have stated these claims in general terms and without any effort to express with fullness the assertions' of the defendant. The substantial errors claimed and relied on are that the court should have arrested the case from the jury upon the motion of the defendant, that the court should have granted a new trial when it was asked for, and that the court erred in rendering judgment for the plaintiff below upon the verdict.

As to the alleged breaches of warranties said to be incorporated in this policy, it is true that the policy, which is before me and which is made a part of the plaintiff’s petition in the court below, contains what the policy calls a “schedule of warranties.”

The caption, in those words, “Schedule of Warranties,” is followed by Article 7:

“It is agreed that the following statements, together with the payment of the stated premium, are the consideration for the issuance of this policy, and said statements are made by the insured and warrantied by him to be complete and accurate. ’ ’

Now it will be noted at the outset in the consideration of these statements, that they are not said to be a part of the contract; they are said to be warranties by the party insured, to be statements by him. In other words, they are the counter agreements on his part, not the contract of the insurance company. It seems to me that this distinction as to what is contracted by the insuranee company and what is agreed or promised by the insured is of consequence in considering whether or not the statute enacted by our Legislature, Section 3625, has any application. That statute is as follows:

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

In the case at bar there is no independent application for a policy. The statements are not in the form of answers to interrogatories.

In the case of North American Accident Insurance Company v. Franklin D. Sickles, 1 C.C.(N.S.), 477, when Judges Parker, Iiaynes and Hull constituted the members of this court, a case was before it in which there had been an application for a policy, but the statements made by the insured in that application were not in the form- of answers to interrogatories. There were no" interrogatories in the application, but the statements were declarations of certain alleged facts. Without discussing the case, it suffices to say that this court held upon elaborate reasoning and citation of authorities, that while there were no formal answers to interrogatories, the statements made by the insured were equivalent to such; they were the, considerations for the policy, they were statements upon which the policy was issued. They were made by the assured for the purpose of giving information to the company unquestionably sought by it as the basis for its determination whether or not it would issue the policy.

While perhaps extending the statute somewhat beyond its letter, but considering its manifest purpose and spirit, we think that the statements made by the insured in the policy before us, although not in the form of an application, but embodied in the policy itself, are nevertheless the statements of the insured such as the Legislature had in contemplation when this enactment was made. There is no principle which could apply to the formal written application as a reason for such legislation that would not apply to similar statements made by the insured and embodied in the policy of the insurance company which signs the policy; which says that they are the statements of the insured and that they are the consideration for the policy, but as they say, statements by the insured which they claim amount to warranties, but which we think the Legislature has said are not to be deemed warranties and are not to invalidate the policy unless they are falsely, fraudulently made, and the insurance company clearly shows such facts, and also that it relied upon sueli statements and would not have issued the policy but for them.

There is, however, in the answer of the defendant here an allegation that at the time of the making of these statements the assured knew them to be false; that is, that he made certain representations in these statements as to his not having made application for other insurance, and having been rejected, etc., and they say that he knew at that time, and they did not know, that these statements were not -correct and were untrue, thereby perhaps bringing their defense, so far as it is stated in the answer, within the terms of the statute. There is, however, such a denial in the reply as imposed upon the defendant the burden of proving this, and this matter became then upon the evidence a question for the jury.

The court, after overruling the motion of the defendant to arrest the case from the jury, charged the jury that there was but one issue in the case. I will invite attention later to the precise language of the charge in this respect. But in the meantime, and during the progress of the trial, the question had arisen as to whether proof of loss had been sent to the company at its office in Los Angeles, and received by it, within the period prescribed by the policy. There was evidence as to the prepartion of proofs of loss in due form, and the placing of them by the assured in the hands of one Lownsbury, a local agent for the company, and some further proof indicating an intention to forward them to the company’s office. The assured, the plaintiff below, offered evidence that these proofs were put into a sealed envelope and that that envelope was directed to the company at Los Angeles, California; but finally the documents were left in the hands of the agent, Lownsbury, and there is no positive proof that the paper was ever deposited in the mail to be sent-to Los Angeles. Without considering this evidence further, or saying anything more about it, it is enough to say that we think that the evidence to sustain plaintiff’s case was not sufficient in this respect to permit the case to go to the jury for the determination of the question as to whether it was or was not received by the company' in Los Angeles, and that the court should have sustained the motion of the defendant to arrest the case from the jury. In refusing to do this, we think that the court erred.

The verdict having been rendered in favor of the plaintiff, the defendant asked the court for a new trial. This should have been granted, but it was refused, and in this the court erred. For these errors of the court, which we have recited, the judgment will be reversed.

Now it is insisted by counsel for plaintiff in error that upon reversal for error of the court in overruling a motion for an instructed verdict, no discretion is allowed to the appellate court, but the mandatory duty is imposed of rendering the judgment which the court below should have rendered, to-wit, a final judgment for the defendant. This we are not inclined to do. We do not think that the statute and the various adjudications which have been cited, and which we have considered, quite bear out the contention of counsel. It is true that in the 77th Ohio State, page 522, in the case of Whittaker v. Insurance Co., there is some language of the judge announcing the opinion for the court, which would seem to sustain the contention of counsel, but it is but a ¿Malum, and we hardly think that it ought to have the conclusive force urged by counsel. Indeed, we think that the able judge using the'language would hardly in a case like the one at bar, and under the circumstances which have been disclosed to us, express the same view as a concluding decision of the case. In our judgment, to render a final judgment might result in greater prejudice and injustice to a party than to permit the case to go back to the court of common pleas for proper action there.

At the time when this motion was made, what was the error of the common pleas- court? It can hardly be contended that no discretion rested with the court of common pleas to permit a technical lack of evidence to be supplemented by additional evidence, qr if the matters contended for by the plaintiff could have been sustained by an amendment to his reply, so as to allege a waiver or a claim on the part of the defendant that the proofs of loss had not been furnished in time, it was still within the discretion of the court under the civil code, in furtherance of justice, to permit an amendment of the pleading. What would have been the proper course of the court in the exercise of such discretion we do not desire to intimate, nor indeed have we at the present time any opinion. We think, however, that the court of common pleas ought not in the protection of parties, to be entirely robbed of all power to exercise the discretion which might have been invoked, if the plaintiff had not been misled by the view which .the court took of the rights of the parties under the pleading and under the evidence. The court was holding in favor of the plaintiff that there was but one issue to be submitted, assuming that required notice to the company had been duly given, and the plaintiff was hardly called upon to ask the court for permission to interpose additional evidence upon that issue, or to ask the court for permission to amend his pleading, the court not having found that he could not avail himself of all his rights under the pleadings as they then were. Our final conclusion is that the judgment of the court below should be reversed, and that the cause should be remanded for further proceedings according to law.


text:
    ALLOWANCE TO WIFE OUT OF HUSBAND’S ESTATE.
    Circuit Court of Hamilton County.
    Margaret B. Mathers v. Warren Mathers.

    Decided, 1911.

      husband and Wife — Husband Secures Divorce on Wife’s Aggression— But Allowance is Made to Her Out of His Estate — Appeal—Section 11993.
    A wife may be granted a share of her husband’s estate notwithstanding in the same proceeding the husband has been granted- a divorce from her on her aggression.

      Gogan, Williams c& llagland, for plaintiff in error.

      Charles B.. Wilby and Mitchell Wilby, contra.
    In this case the wife sued for alimony in the common pleas court. The husband denied her allegations and by way of cross-petition asked for a divorce from her on the ground of gross neglect of duty and adultery. At the hearing the court- dismissed the petition of the wife and granted a decree of. divorce to the husband on the ground of gross neglect of duty. As to the charge of adultery the decree recited that “the court does not make any finding. ’ ’ The costs were assessed against the wife, and on a subsequent date the court made an entry finding “as a matter of law that it has no power to grant alimony in its discretion, where the divorce is granted for the aggression of the wife.” An appeal w.as taken from this holding to the circuit court. A motion by the husband to dismiss the appeal having been overruled, he filed an answer, alleging that he had no property except what he had inherited; that as a result of illness in his youth he had never been able to earn anything, and that the plaintiff had not in any way helped him to acquire anything and brought no property to the marriage. The case coming on for hearing in the circuit court, the husband offered to produce evidence tending to show that the plaintiff had been guilty of adultery, which evidence the court declined to hear. The case was argued, and on December 17 the court handed down the following opinion:
    “No. 5269. Margaret B. Mathers, Plaintiff, vs. Warren Mathers, Defendant; heard on appeal. .
    “Swing, J., Giffen, J., and Smith, J.
    “This is an action by the plaintiff for alimony. The defendant filed an answer and cross-petition for a divorce, and on the issues thus made,, the ease came on for hearing on June 18, 1910, at which time the court rendered judgment, granting a divorce to the defendant on his cross-petition, on the ground that the plaintiff was guilty of gross neglect of duty, and ordered the petition of the plaintiff, and her amended petition, to be dismissed. No appeal was presented from this judgment, dismissing plaintiff’s petition. On July 2, 1910, the court, on motion, made an entry modifying the decree of June 18, 1910. This decree, among other matters, contained the following:
    “ ‘And the court further finds that the plaintiff is not entitled to alimony as of right, the divorce being granted to the defendant for the plaintiff’s aggression, and as to any question of alimony, which it may be in the power of the court in its discretion to grant, and as to whether it is in the power of the court to grant alimony in the exercise of discretion, independent of the petition of plaintiff, this cause is continued.’
    “No appeal was taken from this decree, although an exception was taken.

      “On November 15, 1910, tbe court entered up the following judgment:
    ‘ ‘ ‘ The court taking up the matters left for further consideration, by the order of July 2, 1910, herein, and having duly considered the same, and being fully advised, finds, as a matter of law,- that it has no power to grant alimony in its discretion, when the divorce is granted for the aggression of the wife. ’
    “This last decision is in effect the same as that of July 2, but the court had, on June 18, dismissed the petition of the plaintiff asking for alimony. This petition was the foundation for whatever alimony the court could grant, and when it was dismissed, there was no longer in the court, the power to grant alimony. An appeal should have been taken from the judgment of June 18, 1910. It follows that there is nothing brought before this court on appeal from the judgment of November 15. But it would seem that plaintiff had really lost nothing by her failure to appeal from the judgment of June 18, dismissing her petition for alimony, for the reason that a divorce having been granted the husband, by reason of her aggression, she would not be entitled to .alimony. 68 O. S., 579.
    “Appeal dismissed.”

      ’ Affirmed by the Supreme Court" without opinion, Mathers v. Mathers, 87 Ohio State. - ~ -- ' •"

   A few days later the opinion of the Supreme Court in the case of Fiesler v. Fiesler was published, and thereafter the circuit court reconsidered the present case, and subsequently filed the subjoined opinion:

(Filed December 26, 1911.)

“5269. Margaret B. Mathers vs. Warren Mathers; heard on appeal.

“Smith, P. J.; Swing, J., and Jones, J., concur.

“In accordance with our construction of the case of Fiesler v. Fiesler, 83 O. S., 200, heretofore announced, we are of opinion that plaintiff should be allowed a share of defendant’s property, and adjudge to her as just out .of his real estate such an amount thereof as will equal in value the sum of $2,500.” •

The husband also prosecuted error to the action of the common pleas court in allowing alimony pendente lite, etc., against him. In that proceeding the circuit court held:

(Filed June 5, 1911.)

“5215. Warren Mathers, plaintiff in error, vs. Margaret B. Mathers, defendant in error.

“Smith, P. J.; Swung, J., and Jones, J., concur.

“We think the order allowing alimony pendente lite entered July 14th, 1909, ordered the defendant to pay the sum of $60 immediately after the filing of that entry, and that upon the 25th day of that same month and the 25th day of each month thereafter,' the defendant was ordered to pay the sum of $60.
“From the language of this order we can place no other construction upon it different than that of the trial court.
‘ ‘ While it is true that on June 18, 1910, a divorce was granted to defendant by reason of the aggression of the plaintiff, nevertheless the question of alimony was on July 2, 1910, continued for further and final order by the court. This, therefore, we think left in operation the decree for alimony pendente lite entered by the court July 14, 1909.
“We can not see how we can assist defendant in allowing him a credit for thq amount of costs paid. These costs were ordered paid by the'plaintiff, but defendant voluntarily paid them; this liability he assumed but was not compelled to do so.
“The court below and this court having found the defendant liable for the installments of alimony, and that they should have been paid as ordered, interest upon the- same would, naturally attach.
“The judgment of the court below will be affirmed.”

Error was prosecuted by the husband to the Supreme Court, where the judgment below ivas affirmed without opinion on April 22, 1913, 87 Ohio State. One of the considerations urged upon the Supreme Court by counsel for the husband was that—

“Alimony is nourishment or maintenance, and wherever the word ‘alimony’ is used in the statutes, it is used with that meaning, and when the word was used in the entries in this case, it was used in its usual sense, which is .not synonomous with that share of the husband’s property which may be adjudged to the erring wife under Section 11993. Such share of the husband’s property is not nourishment or maintenance, which implies a periodical payment for that purpose. A share of the husband’s property, is a payment in a lump sum, often intended to reimburse the wife for what she may have brought to the marriage, or what she may have contributed to the property acquired by the husband after the marriage.”


text:
    INSTRUCTIONS TO JURY IN CASE OF INJURY TO A FOREMAN.
    Circuit Court of Stark County.
    The Massillon Iron & Steel Company v. John Wiegand.
    Decided, March, 1912.

      Master and Servant — Foreman Injured in Appliance Erected Under His Own Direction — Negligence—Charge of Court — Application of the Equipoise Doctrine — Verdict of $8,000 Not Excessive for Injuries, When — Evidence as to Changes Made After the Accident.

    1. It is not error to permit a witness to reply to a question as to whether changes were not made after the accident in the appliances in which plaintiff.was injured, where the court expressly admonishes the jury that the answer is to be considered only for the purpose of testing the accuracy and weight of the opinion given by the witness as to the safety of these appliances.
    2. Where the plaintiff had been delegated by his superior to act as foreman in setting up the appliance with which he was working when injured, it follows that he was himself at fault if it was set up in an improper or unsafe manner, and it would be error to charge the jury that the plaintiff was a fellow-servant with his co-laborers on said work.
    3. An employer is not bound to provide the most approved appliances ' and materials for the use of his workmen, but is only bound to exercise reasonable and ordinary care as to the safety of the place in which the work is performed and the character of the appliances and materials used in the work, having due regard for the hazards of the service.
    4. A verdict of $8,000 in favor of a molder by trade, who is crippled for life and suffers and must continue to suffer pain, and who was receiving $3.10 a day at the time of the accident and could earn only $1.10 at the time of the trial, is not so excessive as to appear to have been given under the influence of passion or prejudice.

      Welly & Albaugh, for plaintiff in error.

      Pomerene, Ambler ■& Pomerene, J. H. Taylor and George Bratsch, contra.
    Niman, J. (of the Eighth Circuit, sitting in place of Shields, J.) ; Voorhees, J., and Powell, J., concur.
    Error to the court of common pleas.
   The parties to this proceeding in error stand in the reverse order to that occupied by them in the court of common pleas, and when the terms “plaintiff” and “defendant” are used, reference is made to the parties as they stood in the court below.

The original action was brought by the plaintiff to recover damages for personal injuries- suffered by him while in the employ of the defendant on March 9, 1906, and resulted in a verdict in his favor for $8,000. The defendant’s motion for a new trial haying been overruled, and judgment entered on the verdict, it is sought in this proceeding to secure a reversal of the judgment of the court of common pleas.

Numerous errors are assigned in the petition in error, and among others it is urged by the plaintiff in error that the verdict is not sustained by sufficient evidence, and that the trial court erred in overruling the motion for a new trial. This contention requires a consideration of the facts constituting the plaintiff’s cause of action and the proof in support thereof, as well as the defense interposed by the defendant and the. evidence in support of such defense.

The plaintiff, in his amended petition, in substance alleges that he was in the employ of the defendant on or about the 9th day of March, 1906, in the defendant’s plant in the city of Massillon; that on said day he-was directed by a foreman of the defendant to go from a part of said plant where he was then working, and had been in the habit of working in the business of molding, to another part of said plant with which he was not familiar as a place to work, and there, with others, erect and construct a large and heavy cope and flask; that the cope weighed at least five tons and was used by the defendant for the purpose of casting iron flasks made by the defendant; that he was directed by said foreman to construct said cope upon four upright pillars called “reducers,” and to place upon said reducers iron rails, upon ..which he and other employes were instructed by said foreman to place said cope for the making of iron pipe; that the plaintiff, obeying and relying upon the instructions and orders of said foreman, proceeded to the point designated to carry out said instructions and orders, and was so engaged in the business of carrying out said instructions and orders, and in constructing and erecting said cope upon the reducers and rails as aforesaid, and doing the work in and about the same, and relying upon said foreman, and believing that the place wherein he was so directed to go and was so engaged in said work was a safe and secure place wherein he could, with safety, carry on said work, and that the said four upright pillars called reducers, and the said iron rails upon which the plaintiff was directed and instructed to place said cope, were reasonably safe materials and appliances for said places, proceeded to place said cope upon the iron rails and reducers aforesaid as furnished by said foreman, and proceeded to do the work in and about the same, and as directed by said foreman; that while he was so engaged, a large and heavy crane was being operated near thereto, and large and heavy flasks, weighing at least three and a half tons, belonging to said defendant and used by it in the operation of said plant, were, by order of the defendant, shaken out in the pit adjoining and near to the place where plaintiff was so engaged, and said flasks were being moved from place to place, and by reason of the shaking out of said heavy and ponderous flask containing iron pipe, and the same striking the ground at and near said pit, and said flasks being moved and let fall upon iron skids and other supports near thereto, and by reason thereof - causing a vibration and shaking of said ground, and by reason of said shaking out of said flasks and moving and letting same fall, and thereby causing a vibration and shaking of the ground near the place where the said cope was being constructed, and by reason of the fact that said reducers and said rails were unsafe and unfit for said purposes, the aforesaid cope upon which the plaintiff was then working under said direction of said foreman, was caused to slide from the iron rails and from the reducers as aforesaid, and was precipitated over upon and against the plaintiff.

The plaintiff, in his amended petition, further avers that a part of the machinery in said shop consists of a heavy electric crane, which is used in the moving, among other things, of the heavy wooden and iron flasks and castings, and in shaking the same out; that said flasks and castings variously weighed from three to six tons or more; that in the usual operation of said crane in moving said flasks and castings-, the same necessarily swayed and vibrated, all of which was well known to the defendant company, its officers and servants superior to the plaintiff; that' the defendant, its officers and servants superior to the plaintiff, were negligent towards the plaintiff in that, while knowing said facts, they placed the said cope and track upon insecure supports as aforesaid, and within such close proximity to said traveling crane and the space within which it was necessary to operate the same, that the flask and castings, while being moved by said crane, were likely to and did come in contact with said cope, and while plaintiff was working in, upon and around and about said cope and track, and in the exercise of proper care on his part, and while said crane was being operated and was moving, a heavy flask, weighing about six tons, did so sway and vibrate as aforesaid, and one end thereof came in contact with a pillar, which turned said flask about, and the other end thereof came in contact with the cope upon which and near which plaintiff was then working as aforesaid, and threw the same down and upon the plaintiff; that the defendant, through its officers and servants superior to the plaintiff, negligently selected the place where the said plaintiff was working, and directed him to work there, well knowing that the same was insecure and unsafe because it was in too close proximity to said crane and the operation thereof, and the plaintiff says- that by reason thereof and the other acts of negligence complained of, he was injured in the manner and form as herein averred.

Other allegations are set forth in the amended petition at considerable length, for the purpose of showing the alleged negligence of the defendant and the plaintiff’s consequent injury. Reduced to its simplest form, the plaintiff’s case, in substance, rests upon the contention that the defendant failed to use ordinary care to furnish plaintiff with a reasonably safe place in which to do the work required of him, and reasonably safe appliances with which to do such work.

The defendant, in its answer to the plaintiff’s amended petition, in substance, denied all of the alleged acts of negligence on its part, and further averred that at the time of the plaintiff’s injury, and for more than five years prior thereto, the said plaintiff was in the employ of the said defendant as a molder, and was otherwise engaged by the defendant in its business; that he was thoroughly familiar with the works and machinery of said defendant, and with the construction of flasks and appliances of the said defendant; that part of the time during his said employment, he was the foreman in the construction of flasks and other appliances of said defendant, and that on or about the 9th day of March, 1906, the said plaintiff had in charge a gang of men, employes of the said defendant, who were under the orders and direction of the said plaintiff in and about the construction of certain flasks to be used by the said defendant in its said business; that the plans for the construction of said flasks were made by the said plaintiff, with the assistance of other persons who were under the said plaintiff’s charge, and under his orders and direction; that the plans for the pillars and the selection of said pillars, the cope and the track, and all other things necessary for the construction of said flasks, were formulated and made by said plaintiff and said employes under his orders and direction; that the foundation upon which said flask and the parts thereof were constructed and rested was made under the orders and direction of the said plaintiff, as well as the position which the parts of said flask occupied thereon at the time of said accident.

Further averments are made in said answer to the effect that it was the duty of the plaintiff himself to construct a proper foundation upon which said flask was placed and rested, as well as the selection of the pillars upon which said foundation was placed, and that it was his further duty to so place said foundation as to secure the safety of himself as well as other employes, and that whatever defects there were, if any, in the plans and construction of said flask, which produced the injury of said plaintiff, were the direct result of the plaintiff’s own carelessness and negligence, and not that of the defendant, and that if the appliances described in the amended petition were unsafe and unfit for the purpose for which they were intended, and that by reason thereof the plaintiff was injured as alleged, is due to his own carelessness.and negligence.

The affirmative allegations of this answer were contradicted by the plaintiff’s reply thereto, and to support their respective sides of the issues thus made up, the parties called numerous witnesses, and a large mass of testimony was taken.

Without entering into any extended review of the evidence, it is sufficient for us to say that a careful reading of all the testimony convinces us that this court would not be justified in saying that the verdict was manifestly and clearly against the weight of the evidence. Upon the issues presented by the pleadings, there was a conflict of the evidence, and the jury found for the plaintiff.

The rule which should control reviewing courts in interfering with a verdict because not sustained by sufficient evidence, is stated in a part of the syllabus of McGatrick v. Wason, 4 O. S., 566, in the following language:

“A mere difference of opinion between the court and the jury does not warrant the former in setting aside the finding of the latter; that would be, in effect, to abolish the institution of juries, and substitute the court to try all questions of fact. It must be clear that the jury has erred before a new trial will be granted on the ground that the verdict is against the weight of the evidence, ■ or unsupported by it; and if this is the rule, as it undoubtedly is, even in the court where a ease is tried and before whom the witnesses appear and testify, a fortiori ought to be the rule when another court decides'the motion for a new trial with no other knowledge of the facts than as derived from the imperfect medium of a written statement.”

We think that the trial court, therefore, did not err in refusing to grant a new trial on the ground that the verdict is not sustained by sufficient evidence.

Another assignment of error is based upon the fact that on the cross-examination of William Thee, one of the defendant’s witnesses, the plaintiff was permitted, against the objection of the defendant, to inquire of him, in substance, whether or not changes had been made immediately after the accident in the reducers and other appliances for doing the work in which the plaintiff was injured. The witness was t.he foreman of the defendant, and had in his testimony expressed the opinion that the reducers and rails were proper appliances to use for setting up a cope, if they were properly put down, and the court permitted the question objected to to be answered, but expressly limited its purpose in the following language addressed to the jury:

‘ ‘ I say now to the jury, that this testimony is considered only for the purpose of testing the accuracy and weight of the opinion given by the witness as to the safety of these appliances. ’ ’

j

Testimony of this character would not have been admissible for the purpose of proving the acts of negligence complained of by the plaintiff, nor for the purpose of raising an inference of an admission of such negligence, but as limited in its scope and purpose by the trial court, we think it was properly admitted, and that it falls within the spirit of the decision in Village of Ashtabula v. Bartram, 3 C. C., 640.

It is also contended that there was prejudicial error in the refusal of the trial court to give the seventh request of the defendant to charge before argument. This request is in the following language:

‘ ‘ If you find from the evidence that William Thee, the foreman of the molding room, assigned to the plaintiff, John Weigand, the duty of superintending and directing the several men in the work while working with him in the work he was doing at the tinue he was injured, and whilst so engaged in-said work he, plaintiff, is injured, as set forth in his petition, and because of either or any of the negligent acts of defendant, as set forth in his petition, I will say to you that, under such circumstances, the plaintiff would not be a fellow-servant with his co-laborers on said job of work, but would stand in the same relation to them as William Thee, the foreman, and he could not recover herein and your verdict should be for the defendant. ’ ’

It is claimed that the law embodied in this request is sustained by Wellston Coal Co. v. Smith, 65 O. S., 70; but as we interpret that decision, the real point established therein is that a foreman of an employer can not delegate his duties to one under his employ so as to relieve the employer from responsibility for negligence in the discharge of the duties of the foreman, whether such negligence arises from the acts or omissions of the foreman, or of some one under his employ and by him directed to perform the duties of such foreman, and that the foreman -is chargeable with whatever notice such a person so delegated by him has, or ought to have, while performing the duties of foreman himself. Moreover, we think the charge requested is not applicable to the facts and issues involved in this action. We do not understand that the fellow-servant doctrine is involved in this case, and if it were, the charge requested would not be applicable. We understand the claim to be that plaintiff had been delegated by his superior to act as foreman in setting up the appliances with which he was working when injured, and therefore, was himself guilty of negligence if they were placed or constructed in any improper or unsafe manner. In this view of the matter, the refusal of the trial court to give the request under consideration was proper.

It is also claimed by the plaintiff in error that the court erred in certain portions of his charge, in not adhering to the principles of law laid down in Cincinnati, Hamilton & Dayton R. R. Co. v. Fry, 80 O. S., 289, where it was held that “in an action by a minor against his employer to recover damages for personal injuries, an instruction that the employer owed to his employe the duty to provide him a reasonably safe place in which to work, is erroneous, in that it imposes upon the employer a higher degree of care than the law requires or exacts of him, and that the limit of the employer’s obligation and duty is to exercise reasonable and ordinary care, having due regard to the hazards of the service, to provide his employe with a safe place in which to perform his work.” .

An examination of the charge, however, discloses that where the court used the language complained of by counsel for plaintiff in error, he was merely stating the alleged negligence set forth in the plaintiff’s petition, and was, in substance, following the language of the petition in stating the issues; but that in stating the law to the jury, the court exactly followed .the law as laid down in said case, using this language:

“The limit of defendant’s obligation and duty to plaintiff in that behalf was to exercise reasonable and ordinary care, having due regard to the hazards of the service in which plaintiff was then engaged, to provide him with a safe place in which to work, and reasonably safe appliances and materials with which to do said work. It was not bound to provide the best and the most improved appliances and materials, but only to exercise ordinary care to provide such as were reasonably fit for the purpose. ’ ’

There was, therefore, no error in this portion of the charge.

It is claimed by the plaintiff in error that it was prejudiced by the alleged failure of the court to properly charge what is termed "the equipoise doctrine,” and it is said that this error is shown by the following language of the court:

"But if you find that plaintiff has proven, by a preponderance of the evidence, that defendant was negligent in any or all of the respects heretofore stated to you as the specific' acts of negligence complained of, and that such negligence on the part* of defendant was the proximate cause of such injury,- and no inference of contributory negligence upon his part arises from the evidence introduced by him in support of his case, and such contributory negligence on his part is not proven by defendant by a preponderance of the evidence, as hereinafter stated, then you should return a verdict against the defendant for compensatory damages.”

It is argued that the defendant might not have made out its defense by a preponderance of the evidence, but yet that evidence, taken in connection with the evidence of the plaintiff, might have been sufficient to have placed the evidence in equipoise, and if so, the verdict should have been for the defendant, and that the defendant was deprived of this right by the language of the charge above quoted.

This contention overlooks another portion of the charge where the court, in defining the term ‘ ‘ preponderance of the evidence, ’ ’ used this language:

"By a preponderance of the evidence, I mean the weight of the evidence. Generally speaking, whoever affirms a fact must prove it, and whenever all the evidence upon a disputed fact is in equipoise, the party who affirms the fact has failed to prove it.”

Considering that part of the charge under consideration, to which objection is made, in connection with the court’s statement of the equipoise doctrine, we are of opinion that no error was committed by the court in the respect claimed.

Another alleged error in the charge of the trial court is based upon the contention that the court deprived the defendant of the doctrine laid down in Drown v. Northern Ohio Traction Co., 76 O. S., 234, where it was held:

"Where both the plaintiff and the defendant were negligent, and the negligence of both directly contributed to produce the injury, the plaintiff has no right to recover; and in such case, when the defendant asks the court to so instruct the jury in unambiguous terms, a refusal to so direct is error.”

While the court did not, in express terms, charge the law of the last above-mentioned case, he did very fully charge that if the plaintiff failed to prove by a preponderance of the evidence that the defendant was guilty of negligence in the respects complained of, or some one of them, and that such negligence was the proximate cause of the plaintiff’s injury, there could be no recovery; and that if the evidence introduced by the plaintiff raised a presumption of contributory negligence on his part, and he had failed to remove such presumption, or that the plaintiff’s injury was caused wholly by an accident without the fault of any one, or was caused by the plaintiff’s own negligence alone, and not by the negligence of the defendant, or that in the event the defendant had proved by a preponderance of the evidence that plaintiff was himself guilty of negligence which contributed directly as a proximate cause of his own injury, then the verdict should be for the defendant.

If the defendant had requested the court to charge that if both the plaintiff and the defendant were negligent, and the negligence of both directly contributed to produce the injury, the plaintiff would have no right to recover, it would have been the duty of the court to give such charge; but no such request was made, and we think the principle of Smith v. Railway Co., 23 O. S., 10, shotdd control in this matter. It was there held:

‘ ‘ If the charge as given be unexceptionable, it is no ground of error if the court failed to give other instructions which might properly have been given, unless such other instructions be specifically requested and refused.”

It is claimed by the plaintiff in error that the trial court erred in not applying to this ease the doctrine of McGill v. The Cleveland & South Western Traction Co., 79 O. S., 203, where it was held as follows:

"The rule that a direction of the master to continue the use of a defective instrument or tool, coupled with a promise to replace it with one not defective, relieves the- servant from the doctrine of assumed risk if injured during such continued use and because of the defect, does not apply to cases of ordinary labor with a tool of simple construction with which the servant is entirely familiar, and which he understands and comprehends as fully as the master.”

If this principle is applicable to the ease under consideration, the verdict would be contrary to law, and it is so contended by plaintiff in error. It is argued that the appliances in this case and the reducers and the rails were as simple in their construction and application as- the stepladder in the case last above referred to, and that the plaintiff could see and know as much about them and the manner of their use as could the defendant.

We think that the trial court was justified in not accepting this contention, in view of the allegations of the petition and the proof in support thereof concerning the traveling crane and the shaking outfit, the new place in which the work was being done, and all of the other circumstances surrounding the construction and use of the reducers, iron rails and other appliances. There would seem to be a wide difference between the means employed in doing the work in which the plaintiff, was engaged, in the surroundings and in the location shown by the evidence, and the defective instrument which caused the injury to the plaintiff in McGill v. Cleveland & South Western Ry. Co., supra, and we therefore hold that there was no error in the refusal of the trial court to apply the doctrine of that case to this one.

Another assignment of error is founded on the contention that the verdict is excessive.

It appears that at the time of his injuries, the plaintiff was a molder by trade and was receiving $3.10 a day; that at the time of the trial, and for some time before, he had been receiving only $1.10 a day; that according to the undisputed evidence, he has been crippled for life, and has suffered and will continue to suffer pain. While the verdict is- large, we are unable to say that it is so excessive as to appear to have been given under the influence of passion or prejudice.

Numerous cases have been cited us where parties apparently suffering no greater injuries than that sustained by the plaintiff, have obtained verdicts in excess of the verdict recovered by him, which have been sustained by reviewing courts.

The principle which we conceive should be adhered to in interfering with a verdict on the ground that it is excessive, is stated in L. S. & M. S. R. R. Co. v. Schultz, 19 C. C., 39, in the following language:

“A verdict should not be set aside simply because it is excessive in the mind of the court, but only when the excess is shocking to a sound judgment and a sense of fairness to the defendant. Where there is any margin for a reasonable difference of opinion in the matter, the view of the court should yield to the verdict of the jury rather than the contrary. ’ ’

Various other errors are assigned in the petition in error, but the ones herein considered are those relied upon by counsel for plaintiff in error in their argument and briefs for a reversal.

We find no error prejudicial to the plaintiff in error in any of the matters complained of, and it therefore follows that the judgment of the court of common pleas must be affirmed.


text:
    INSUFFICIENCIES UNDER A POLICY OF FIRE INSURANCE.
    Circuit Court of Richland County.
    Gump v. National Union Fire Insurance Co.

    Decided, 1912.

      Fire Insurance — Proofs of Loss May he Made Out hy Attorney for a Non-Resident Policy Holder — Failure to Operate Factory at Some Time Other than lohen Fire Occurred Does Not Void the Policy on the Ground the Property Was Vacant — Nor is Policy Voided hy Keeping Gasoline in a Pint Bottle Near Gasoline Engine.

    1. Proof of loss by fire may be made out and verified by an attorney for a non-resident client for whom he had negotiated the policy in question.
    2. Where the condition of manufacturing property as to occupation and operation was the same at the time of loss by fire as when the policy was written and delivered, recovery thereon can not be defeated by a showing that during the intervening period there had been times when the property was not operated at certain periods of the day or night.
    3. The keeping of gasoline in a pint bottle on a shelf near a gasoline engine to be used in starting the engine, the bottle being filled when necessary from a gallon can kept in a separate building, is a keeping of a small quantity for incidental use and not in violation of a policy inhibition against keeping gasoline on the premises, and in view of the fact that it was fully understood when the policy was written that it was used for manufacturing purposes and operated by a gasoline engine the keeping of gasoline in such quantity in the engine room must have been in contemplation.

      Jesse E. La Dow and W. 8. Kerr, for plaintiff in error.

      Brucker & Voegele, contra.
    Taggart, J.; Powell, J., and Voorhebs, J., concur.

       Affirmed without opinion, National Union Fire Insurance Co. v. Gump, 86 Ohio State, 325.

   The plaintiff in error was the plaintiff in the court of common pleas and the defendant in error was the defendant therein. The plaintiff, in her petition and amendment thereto, sought to recover upon a policy of insurance which had theretofore been issued to her by the defendant, National Union Fire Insurance Co.

The answer which was interposed by the insurance company contained several defenses, the first, in substance, being a general denial; and the second being a provision of the policy which, among other things, provided: “or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises, benzine, benzole, dynamite, ether, fireworks, gasoline,” that the policy should be void.

We do not quote the entire provision set out-but so much thereof as is necessary to indicate our view of the case. The defendant further says that the fire was caused by the use of gasoline in the engine room, and' that there was no consent to the use of or the keeping of gasoline in said building thereby increasing the hazard.

The third defense set forth another condition of the policy to the effect that, in ease the property insured was a manufacturing establishment and was not operated at certain periods of the day or night, the policy became void; and then it is averred that this condition was violated.

The defendant for a fourth defense avers that there had been no proper proofs of loss furnished agreeably to certain other provisions of the policy.

Upon the averments in the answer being denied in the reply the case proceeded to trial, and, at the close of all the evidence in the case, upon motion of the defendant, the court directed the jury to return a verdict for the defendant. Error is now prosecuted to this court to reverse the judgment of the court of common pleas.

It is claimed that no proper proofs of loss were furnished in this case; that the proofs furnished were sworn to by W. S. Kerr, attorney in fact for the plaintiff, and it is contended that this .can not be done. But it appears from this record that the plaintiff was a non-resident of the state and had been such for some time previous to the fire;, that she had no personal knowledge of the facts in the case, in fact the record discloses that the policy was taken out by some one authorized to do so by her, that the fire occurred subsequent thereto and under circumstances that she -could have no knowledge or information concerning the same. It does further appear from the record that the person making the proof of loss was duly authorized as attorney in fact to transact the business for the plaintiff. Now, if the proofs of loss could not be made out and verified as the proofs in this case were made out and verified, we think that it would be substantially impossible to make proofs of loss in this character of cases,, or where the facts are similar to the facts in this case. If the plaintiff’s attorney in fact could not make these proofs of loss, it does- not appear that she had any other person, in the state of Ohio who could make these proofs of loss as agent or otherwise, and, as we have indicated, the plaintiff herself could not reasonably be expected to make these proofs of loss and verify the same, when she had no knowledge of the transaction. So that, so far as the contention is made that the proofs of loss are not sufficient, under the defense set out in the answer, Ave think the record fully sustains the claim of the plaintiff in error that proper proofs of loss were made out and submitted.

As to the next contention that the property became vacant, under another defense set out in the answer of the defendant, we think that this contention can not obtain, under the state of this record. It appears from the proof in this ease that the condition of this property that was covered by the insurance was substantially the same as when the policy was written and delivered. We do not think it falls within the clause of the provision of the policy that this manufacturing establishment ceased to be operated for more than ten consecutive days. It was not operated nor had it become vacant after the issuance and delivery of the policy. Its condition remained substantially the same as when the risk was assumed by the defendant company.

But one other question then remains in this case; was this policy rendered void, under the provisions in the policy prohibiting gasoline to be kept, used, or allowed in the above described premises? The only proof that we can discover in this record is found on page 48, wherein the engineer testifies that they used to start the engine with gasoline, and the gasoline was kept outside of the building in a'building by itself, brought in there in a pint bottle and set on a shelf. The pint bottle was kept near the engine on the shelf probably five or six feet from the engine. And on cross-examination on pages 50, 51, he says that the gasoline was kept in a pint bottle. He does not say how much there was of this gasoline and when asked if he had not, before this time, testified that there was about half a pint, his answer is that he does not remember; and when asked if he had not theretofore testified that the gasoline had nothing to do with the fire, his memory seems to be somewhat at fault in respect to that matter.

Another witness, on page 41, testified that they used a little bit, “I don’t know how much, probably half an ounce, to cause the first explosion in starting the engine, that was all the gasoline used.” He further testifies that the gasoline was. kept in the oil house and they used to have a can to bring it into the engine house, and that the can was a gallon can, but he does not know what disposition was made of this gallon can, but gives his opinion that it must have been kept in the engine house. When asked to give his best judgment in the matter, he hasn’t any best judgment, he answers.

So that, as far as the evidence in this case is concerned, it is exceedingly meager and not of that persuasive character that we think would authorize the court in directing a verdict and saying, as a matter of law, that the provisions of this policy had been violated, according to its intent or letter. The record is wholly silent as to any knowledge by the insured as to the use of any gasoline in or about the premises, or the giving of any authority to any one in the occupation of said premises for the keeping, using or allowing the use of gasoline therein.

■ It does appear in this record that the agent of the company knew that the premises were occupied for certain manufacturing purposes and that the power was derived from the engine in the adjoining building.

Now we think the principle laid down in the note to the case, Boyer v. Insurance Co., 124 Mich., 455, is controlling in this case, ‘‘ The use by an assured of naphtha, or benzine, on the insured premises, when the use or keeping of such articles is stipulated against in the policy, voids the contract of insurance, unless such use is incidental to the business, or is in small quantities for a special and not dangerous purpose, ’ ’ and this is fully sustained in the following cases: Arnold v. Insurance Co., 148 Cal., 660; Smith v. Insurance Co., 107 Mich., 270; Springfield Fire & M. Ins. Co. v. Wade, 95 Tex., 598; American Cent. Ins. Co. v. Green, 16 Tex. Civ. App., 531.

We think that this record discloses clearly that the gasoline that was on these premises was for such use as was incidental to the business, and in such small quantity, “for a special and not dangerous purpose” as must have been in contemplation of the parties when the insurance was written, and was not a “keeping or using or allowing to be kept or used gasoline,” within the provisions of the policy; and we think the court was in error in directing a verdict for the defendant.

For the error of the court in directing a verdict,- the judgment of the court of common pleas is reversed and remanded for further proceedings according to law. Exceptions may be noted.