text:
    CONSPIRACY TO BURN A BUILDING.
    [Circuit Court of Fulton County.]
    George Hutchinson v. The State of Ohio.
    Decided, January, 1906.

      Arson—Sufficiency of Indictment Therefor—Ownership of the Property —Procurers and Abetters of the Offense—Evidence of Official Stenographer—Presumption as to Accuracy of Stenographic Notes— Presumption that Trial Judge did not Err—Proof of a. Conspiracy— Conversations with Co-conspirators.

    1. An indictment for arson properly charges the ownership of the property when the owner named is the holder of the legal title.
    2. Where a building to which a wife held the legal title was set on fire and burned under circumstances indicating guilty complicity of the husband, and there is no evidence that she had any connection with the crime’ an indictment charging him with arson is proper, rather than one charging him with intent to defraud an .insurance company, although such may have been his intent.
    3. One who aids, abets, or procures the burning of a building may be prosecuted as a principal offender.
    4. Where an official stenographer testifies from her stenographic notes, the presumption, the absence of evidence to the contrary, is that the trial judge determined she was using them for a purpose legally competent.
    5. If the court permitted a stenographic report of testimony taken in a previous trial to be read in evidence, a transcript thereof should be deemed to be in evidence, with the privilege to the opposite party of examining it and cross-examining upon it.
    6. Inasmuch as an official stenographer is an officer of court and under oath accurately to report the testimony offered, query whether a presumption does not arise in the absence of evidence to the contrary, that the report so made is accurate.
    7. Where there is proof of a conspiracy between the defendant and S to burn a building, the testimony of P to the effect that in furtherance of the conspiracy he was employed by S to do the act, is competent as a part of the res gestae, even if it involves a statement of S to P implicating the defendant.
    S. The proof required to establish a conspiracy for such a purpose is not proof beyond a reasonable doubt, but such proof as fairly raises a presumption or inference of a conspiracy.

      Wildman, J.; Parker, J., and Haynes, J., concur.
    In the case of George Hutchinson against the State of Ohio, the plaintiff in error brings the case here for the purpose of a reversal, if his contentions are correct, of a judgment of conviction in tire court of common pleas of this county. He was tried and convicted upon an indictment charging him with arson, said to have been committed on the 10th day of August, 1896, in the burning of property of Rebecca Hutchinson who, it is agreed, was the wife of the plaintiff in error here, the defendant below.
    Several grounds are urge'd upon the court as reasons for setting aside the verdict below and reversing the judgment therein. In the limited time at our disposal we shall not be able to discuss at great length the various propositions made. Our attention has been especially invited in argument to the following claims:
    That the indictment does not correctly describe the offense which was disclosed by the evidence, if any offense at all was so shown.
    That the court erred in permitting the introduction of evidence upon the trial, and especially the testimony of John Page as to a certain conversation or certain conversations said by him to have been had between him and one Swisher, in the absence of the defendant below.
    That the ownership of the property was not correctly described in the indictment, it being therein alleged as owned by Rebecca Hutchinson, when, as contended, it should have been charged as being owned by a man named Ilolden, otherwise called Nicely, who, at the time of the destruction of the building, was its tenant.
    That the court erred in permitting the introduction of the testimony -of the witness Nellie Brown, an official stenographer1 of the court, it being claimed that she read from her stenographic notes of the testimony given upon a former trial, or a part thereof.
    That the court erred in permitting the evidence as to the amount of the insurance which had been taken out and was in force upon the building at the time of the fire.
    And generally, that the verdict is not sustained by the evidence.

      Some of these questions seem to us very substantial and important, and one or two others of almost equal difficulty, though based rather upon technical rights, perhaps, than really substantial ones.
    Without tarrying too long upon the form of the indictment, it is sufficient to say that we think the indictment properly charges the ownership of the property in Rebecca Hutchinson. The testimony discloses that the title was prima facie in her and that Holden, or Nicely, by whatever name you call him, Occupied the property simply as her tenant. Whether or not the indictment might have charged the ownership as in Nicely, we think that it was entirely proper to charge it as in the person who held the legal title.
    A more important question is that raised by the contention as to whether it was proper to charge the defendant with being guilty of arson in the destruction of the property of another, instead of charging him under another section of the statute for burning property with intent to defraud an insurance company. We think it very clear that the defendant could not properly be charged as burning his own property with intent to defraud an insurance company. Pie was not the owner of the property. Whether or not he might have been indicted and tried under the section of the statute referred to, Revised Statutes, Section 6832, upon the basis of the other statute that one who aids, abets or procures another to commit a crime may be prosecuted and punished as the principal offender, it is not necessary for us now to determine. There is no evidence that we have discovered in a very careful examination of the bill of exceptions that his wife, Rebecca Hutchinson, procured the defendant to set this building afire. So that without regard to the form of the indictment, it can hardly be contended that there would be sufficient justification under the evidence here for the claim that he aided and abetted his wife in the destruction of the property, or that she conspired with him or he with her for the setting fire to her building for the purpose of defrauding an insurance company. We think he was properly indicted under the statute which punishes the burning the property of another—Section 6831, Revised Statutes.

      The contention of the state as to the facts is that Hutchinson, the husband of the owner, for the purpose of defrauding an insurance company, because it is not disguised that that was his motive if he entered into this transaction, employed one Swisher to burn or cause to be burned the building in question; that Swisher employed John Page to do the same thing, and that Page, connecting with himself a man named English, did the direct act of destroying the building. It is not contended that Page himself set fire to the building, but he entered according to the claims into so close connection with the transaction that it may fairly be said that he was one of the two committing the overt act, that is to say, he carried English in his vehicle to the place where the building was destroyed, taking with him at the same time some coal oil; that he was present when shavings were prepared and placed against the building, and that, although he went away a short distance, he came back before the building was destroyed and then took English away with him. We think it may fairly be said that the destruction of the property was directly caused by these two men—Page and English. It does not appear that either Hutchinson or Swisher took any active part in the transaction itself. The testimony tends to show that Hutchinson and Swisher procured the two men who directly caused the fire, and the question then arises as to whether Hutchinson was properly indicted as a principal offender. It is contended with great earnestness that he should have been indicted for aiding and procuring another to do the act; that he should not have been charged with the burning of the building directly. And some cases have been cited in support of this proposition; among them the case oE Ghidesler v. Stale, 25 Ohio St., 433. In a case decided by this court in 1890, while Judges Scribner, Haynes and Bentley were upon the bench and were sitting in the case, this question was touched upon and to some extent discussed. The case is the somewhat famous one of Lydia Devere v. State of Ohio. Lydia Devere was convicted and sent to the penitentiary upon the charge of forging and uttering forged paper. And it is said that Lydia Devere is the same person who within the memory of all of us—at a very recent date— was tried and convicted for violation of law under the name of Cassie Chadwick. Without stopping to read the case, it is sufficient to say that she was indicted for forgery and, I believe, uttering forged paper. The case is reported in 5 Circuit Court Reports, 509. I read from the language of Judge Bentley' on page 531:
    “It is also said by counsel for defendant that she could not be convicted under the second count of the indictment for uttering this note, and Brown v. State, 18 O. S., 508; Ghidester v. State, 25 O. S., 438, and certain English reports, are cited in support of that position. At the time that the cases in the 18 O. S. and 25 O. S: were decided, the section of the statute bearing upon the subject was different in form from the provisions that existed at the time of the transaction in question here. Section 6804 now reads, as it did not then: ‘Whoever aids, abets, or procures another to commit any offense, may be prosecuted and punished as if he were the principal offender.’ Since the other decisions were made, the Supreme Court in Hanoff V. State, 37 O. S., 178, have construed this section, and have given particular emphasis to the word ‘prosecuted’ as appearing therein; so that it is now held, by the provisions of this section, that the indictment may charge an aider and abettor as if .he were the principal offender, the word ‘prosecute’ being broad enough-to have reference to the form of the indictment itself. So that whatever objection might have been taken in this line prior to the amendment of Section 6804 is no longer tenable.”
    Motion for leave to file petition in error to the Supreme Court was by that court overruled.
    The ease of Hanoff v. State, 37- Ohio St., 178, should be read in this connection. It is our view that the indictment was properly drawn under the section of the statute ’providing that aiders, abettors and procurers may be prosecuted as principal offenders.
    We come then to the questions raised during the trial of the case as to the admission of the evidence:
    The testimony of Nellie Brown, stenographer, contains certain references to the notes which she had taken upon the trial of Swisher, who was himself prosecuted for his complicity in this alleged crime. It is not said in the introduction of this testimony that she was giving the contents of any writing, that she was reading from her stenographic notes, or any transcript thereof; but she was asked the direct question as to what was testified to on the former trial, and her answer was given to that question. Objection was made to her reading from the notes. Nothing was said by the court below as to whether his observation led him to the judgment that she was reading from the notes, or whether she was testifying from her recollection of the testimony on the former trial, refreshing herself by an examination of her own notes. Later she was asked the question as to whether all that she had read was from her official notes taken on the former trial, and she answered in the affirmative. But it nowhere directly appears that the testimony which was first objected to was read from the notes, and in considering whether or not the court below erred, presumption must be permitted in favor of the record below. In other words, the court is not presumed to have erred; he saw the witness; he could determine for himself whether she was testifying from memory or from a reading of the notes which were in her hands, and we are not disposed to hold, under the circumstances, that error was committed by the court in this respect.
    There is another principle which may possibly apply to the consideration of this question. That is, the extent to which the rule of the Supreme Court in the case of Moots v. State, 21 Ohio St., 653, and Shriedley v. State, 23 Ohio St., 130, should apply. Those cases recognized the propriety of permitting in evidence in the one case a record, in the other certain check slips made by a witness for the purpose of preserving the information of some transaction where the memory of the witness would be likely to fail, and although in each of these cases the witness may have testified that he -had no recollection of the transactions the memory of which was so sought to be preserved, the writings were permitted as original evidence in lieu of the memory of the witness. In the case of The Pennsylvania Co. v. Trainer, Admr., 12 Circuit Court Reports, 66, the Circuit Court of the Seventh Circuit held:
    “Where it is claimed a witness Avho testified upon a former trial has changed his testimony, an official stenographer who took the testimony at the former trial, who produces his notes in short hand of the testimony of the witnesses, may read his notes to the jury as affecting the testimony of the witnesses, if he remembers that at the time the testimony was correctly taken, and that the notes contain all the testimony of such witness, although at the time he is called upon to testify he has no independent recollection of what the witness did testify. ’ ’
    That is the syllabus; whether it was prepared by the judges or by a reporter, I do not know. On page 69, Judge Frazier, announcing the opinion of the court, says:
    “Counsel for defendant in error cite a number of authorities in support of the proposition that the notes of a stenographer, like other writings made by the witness at the time of the occurrence, can only be used to refresh his memory.”
    And then certain quotations are made from one or two works and the judge adds:
    ‘ ‘ It has long been an established rule of evidence that a witness who has made entries in a book or reduced to writing facts which he is required to do in the regular order of his employment, on .the day they purport to have been made, though he has now no independent recollection of the facts mentioned in it, if he remembers that at the time, he knew the facts were correctly stated, may be permitted to use it to refresh and assist his memory; but the writing itself must be produced in court, in order that the other party may, by cross-examination, have the benefit of the witness refreshing his memory by every part. The American courts have carried the rule farther than it has been carried in England, by admitting the writing itself to go in evidence to the jury in all cases where it was made by the witness at the time it occurred, for the purpose of preserving the memory of it, if, at the time of testifying, he can recollect nothing further than that he had actually reduced the whole transaction to writing. 1 Greenleaf on Evidence, Section 437 and note 3 to 12th edition ; Wools v. The Slate, 21 Ohio fet., 653; Shriedley v. The Stale, 23 Ohio St., 130.
    “If entries or writings, made by a person in the performance of a private employment, are admitted in evidence' upon the testimony of the person who made them that they are correct, although he has no recollection of the facts, why on principle and reason should not the testimony of a witness taken in shorthand by an officer of the court appointed for that purpose, and whose sworn duty it is to correctly report the testimony, be admitted when it is competent to prove it, although the officer at the time of testifying has no independent recollection of what the witness testified.

      “The violent changes effected in the modes of procedure by uhe courts in the last few years, the progress of science, the startling and violent inroads effected by the telegraph, the telephone, the phonograph, the application of electricity as motive power and to other purposes with the application of photography in evidence, and the employment of court stenographers, have placed the line of relevancy far beyond what would be recognized by the courts of even twenty years ago. * * *
    “A recent author says: ‘At the present time the custom of employing a court stenographer, whose duty it is to take down the testimony of the witnesses examined, is nearly universal. He is usually a sworn officer of the court, and his notes or transcripts of them possess an official character and authenticity which render them of great value in case of the subsequent death or absence of a witness. Where such records exist, their production on the subsequent trial should, it seems, be required under the rule requiring the production of the best evidence.’ Underhill on Evidence, page 171.
    “In Rice on Evidence, Yol. 1, p. 399, referring to stenographer’s report of the testimony taken upon a former trial by a witness since deceased, says: ‘ There is no substantial reason why the testimony taken in such trial should not be read. The party was on the stand, and could have been cross-examined, and the same opportunity for scrutiny and for contradiction existed as if the jury had agreed upon a verdict. ’ ’ ’
    Tarry but for a moment and consider this ease in which Judge Frazier renders the opinion. I may say that it should be remembered that we have a statute permitting the introduction of a stenographic report taken upon a former trial under certain circumstances, where a witness has died or has so departed from the jurisdiction of the court that his oral testimony is not at the time of the trial obtainable. Judge Frazier, after citing another authority in the case, Bennett v. Syndicate Ins. Go., 39 Minn., 251, and a text book, 2 Rice on Evidence, 658, says: ■
    “It is a rule of universal application that a party must produce the best evidence within his control, and though the notes of a stenographer may not be the best evidence in the sense that it excludes all others, experience teaches that it is more reliable than unassisted memory, and in practice is consulted with deference by counsel and judges in cases of controversy or doubt as to what a witness said. ’ ’

      Without going further with a consideration of this question or further quotations from this opinion of Judge Frazier, it is enough to say that we think the reasoning by Judge Frazier is worthy of most careful consideration and thought. We do not find it necessary to adopt the principle in this case that wherever an official stenographer presents in court a stenographic report of the testimony of a witness on a former trial whose testimony is sought to be impeached or the testimony of a party on a former trial where admissions of that party would be relevant, that such a stenographic report would be admissible in evidence. I say we are not forced to that conclusion because of the reason which I have already given that it does not affirmatively appear in this ease that the stenographer read to the jury the particular part of the testimony which was objected to. If the stenographer did read it to the jury, that was equivalent to offering it in evidence to the jury. If the court permitted it, the stenographic report or. transcript thereof would in that case be deemed to be in evidence so that the .opposite party had opportunity for examination of it and cross-examination upon it. We think that no error is apparent in the admission of the testimony of Nellie Brown, the official stenographer. Before leaving this branch of the case it might be properly added that the statute itself for the appointment of stenographers requires that they shall take an oath accurately to report the testimony, and we have a principle well recognized in the courts.that an officer will not be presumed to have failed in the performance of a duty. There is no presumption, in other words, that the report taken by an official stenographer, sworn to make an accurate report, .is inaccurate. On the contrary, it might, perhaps, properly be held that there is a presumption of accuracy, a presumption that the officer performed her duty, and that without other evidence or without her statement that she had correctly reported the testimony, the court in the absence of any evidence of inaccuracy might permit it to go to the jury. It is not, however, necessary for us in this case to go that length. I simply submit the matter as a query.
    Did the court err in the very important matter of admitting the testimony of John Page as to what had been said to him by Swisber, including the statement by Swisher, in substance, that he had been employed by Hutchinson to commit this crime?

      Clawson v. Slate, 14 Ohio St., 234, was cited by one of the counsel for plaintiff in error in support of the proposition that on the trial of a defendant charged with crime, evidence of the declarations of a conspirator for the commission of such crime, made in the absence of the accused, is not admissible to prove either the body of the crime or the existence of the conspiracy, unless they either so accompany the execution of the common criminal intent as to become a part of the res gestae or in themselves tend to further the execution of the common criminal intent.
    Assuming for the moment the existence of the conspiracy and dealing with the question as to how far the testimony of one conspirator may be used against another, it may be said in response to this contention of counsel for plaintiff in error and the citation’ of the case referred to, that if Swisher was a co-conspirator with Hutchinson, if Swisher had been employed by Hutchinson to destroy this building under such circumstances as would make it a crime, the whole conversation which'Swisher had with Page was surely in furtherance of the conspiracy, because he was simply causing by means of that conversation the destruction of the building; he was employing another to carry on the work, and in doing that he was telling that other the occasion for it, who was employing him to do it. We,are not quite disposed to go so far as to hold that the statement in that conversation by Swisher of what had been said to him by Hutchinson could be taken as affirmative evidence of the statements by Hutchinson; but we do hold that if there was sufficient proof to justify the introduction of the testimony as to the conversation at all, I mean if there was adequate proof of the conspiracy between Swisher and Hutchinson, that then this conversation was necessarily and properly shown as one of the links in the chain of causation, the ultimate result of which was the destruction of the building in violation of law. Without that there would be a missing link in the chain; the chain would be broken, and it could hardly be said that Hutchinson had caused the fire. This was a passing along by sequence of events the act of Hutchinson in first procuring, if lie did procure, Swisher to commit the crime. It was passing it on, and every transaction from Hutchinson to English would be competent in evidence as bearing upon the original cause of the ultimate effect.
    We think that that evidence was properly admitted. The effect of it, and the effect of every part of it, was a question for subsequent consideration, and no request appears to have - been given to the court for instruction to the jury that they could not consider the statement of Swisher to Page as evidence of what Hutchinson had said to Swisher. If the evidence was properly admitted, and if the use of it was to be restricted as simply having the effect of -passing along the act to furnish the link in this chain of causes, in other words, of employing Page to go on with the transaction and carry it to a conclusion, I say if it was to be so restricted, it would have been proper for counsel to ask the court for’ a specific instruction to that effect and for the court to have given it; but no such request seems to have been made; at least, our attention has been called to none, and no exception was taken to any action of the court in refusing.
    An effort was made by counsel to eliminate this evidence in its entirety from consideration by the jury, and we think that the request in that direction was by the court .properly refused. But was Swisher a conspirator with Hutchinson so that testimony was properly admissible as to the statements and acts of Swisher in furtherance thereof? Up to the time of the introduction of this testimony the evidence to support the charge of conspiracy was very slight, if there was any at all. The evidence upon this subject was introduced in substance, after the court had made its ruling permitting Page to testify to what Swisher had said to him. There is no arbitrary rule as to the order in which evidence shall be introduced upon the trial of a cause; this matter must rest largely in the discretion of the trial court. Ordinarily, it would unquestionably be better before the testimony as to statements of a claimed conspirator is admitted that adequate evidence should be given of the conspiracy; but we think that there was no abuse of discretion on the part of the court in permitting this evidence to come in, if it was finally made competent by sufficient evidence of a conspiracy.

      AYhat is sufficient evidence of a conspiracy? Evidence to satisfy the court beyond a reasonable doubt that a conspiracy exists is not required. It is sufficient if a conspiracy is established by prima facie evidence, evidence which makes a prima facie case, which fairly raises a presumption or inference of a conspiracy ; and in this case we are not disposed to differ with the court below that there was sufficient evidence to justify the inference that these men had formed a combination for the purpose of committing a crime, the crime charged in the indictment. It is true that a large part of the evidence comes in the form of the testimony of men who were themselves conniving at or taking part in this criminal offense. Their evidence should be received with caution; and the court properly instructed the jury as to the caution with which the testimony of an accomplice should be received. But after all, we think that there was such a combination of circumstances here, and there are so many witnesses testifying as to facts bearing in one way and another upon the claimed guilt of this defendant, that we are not disposed to hold that the court erred in the first place in permitting the testimony of Page as to his employment by Swisher to go to the jury.
    And along the same line, and upon the vital question as to whether the jury erred in finding this defendant guilty under the evidence which was submitted, we are not disposed to hold that the evidence would not justify a conviction. Twelve men saw the witnesses upon the stand; they heard them testify, and notwithstanding the fact that some of these witnesses were themselves violators of law, still, in view of all the circumstances, the appearance of the witnesses, the manner in which they testified, the many circumstances which are not' brought so clearly to our attention as to the attention of the trial judge and the trial jury, the latter found this man guilty of the crime defined in the indictment. Considering the case in its entirety, we have concluded that the judgment of the court below in overruling the . motion for a new trial ought not to be disturbed, and the judgment will, therefore, be affirmed.

      Files c§ Paxson, for plaintiff in error.

      Handy & Wolf, for State.

       Motion for leave to file petition in error in Supreme Court overruled on February 20, 1906.


source: Caselaw Access Project

license: Public Domain

text:
    RIGHTS OF MORTGAGEE UNDER. FIRE INSURANCE POLICY.
    [Circuit Court of Allen County.]
    Firemens’ Insurance Co. v. Catherine E. Boland and Clara E. Agner.

    Decided, 1904.

      Insurance—Mortgagor not the Agent of Mortgagee in Procuring—Fraud, of Mortgagor in Procuring—Not a Defense Against Claim of Mortgagee, When.

    1. A mortgagor is not in any sense the agent of the mortgagee in procuring insurance on the mortgaged premises for the benefit of the mortgagee as his interest may appear and in accordance with an agreement so to do.
    2. Where the mortgagee is not a party to the procuring of the insurance contract, and had no knowledge of fraud in the procuring of the insurance, an allegation of fraudulent representations and concealments on the part of the mortgagor in the procuring of the insurance does not constitute a defense to the claim of the mortgagee under the policy.
    Norris, J.; Mooney, J., and Day, J., concur.
    The defendant in error, Clara E. Agner, brought this action in the court of common pleas against the Firemens’ Insurance Company to recover on a policy of insurance for loss by fire, which loss she claims was covered by said insurance. To this action Catherine Boland was made a party defendant. She filed her amended answer and cross-petition in which she asserts with other averments that at the time the policy was issued which secured the loss from thence on, and at the time the property was destroyed by fire, she held a mortgage on the property, and the policy provided that the loss be paid to her as her mortgage interest may at the time of the loss appear, and that it was further stipulated by said policy that the insurance of her said mortgage interest as mortgagee in the property insuer should not be off-set or invalidated by any act or omission of the mortgagor to whom the policy was issued.
    The answer of the defendant company to this pleading of Catherine Boland is by its first defense a denial. By its second defense it asserts that it is stipulated in the policy that the policy should be void if the assured had at its issuance or after-wards in the life of the policy procured other insurance upon the same property, that by specific provision of the policy the samé issued subject to the foregoing prohibition which could not be and was not waived by any officer, agent or representative of defendant company; that the policy further provided that if with consent of the company an interest under the policy shall exist in favor of a mortgagee the aforesaid provision shall apply in manner expressed in such conditions as shall be written upon, attached or appended to the policy.
    The defendant says that this Catherine Boland, prior to the 25th of July, 1900, was the owner of the property described in the policy, and on that date conveyed the same by deed to Clara E. Agner, and that while Catherine Boland was the owner she procured and there was issued to her by the Washington Insurance Company of Cincinnati, 0., an insurance policy on said property insuring the same against loss, etc., by fire in the sum of $1,500, and when she sold and conveyed the property to Clara E. Agner she duly assigned and transferred said policy to Clara E. Agner. The policy was issued on the first of October, 1889, insured the property for three years from that date, and so continued for said time in force, which period covered the date of the fire. This policy in said Washington Insurance Company when it was assigned was made payable to Catherine Boland, mortgagee, as her interest may appear; that defendant’s policy here in suit was issued January 17, 1901, and while the Washington Insurance policy was in force. The mortgage clause in this defendant’s policy was thus made at the request of both Clara E. Agner and Catherine Boland. Defendant says that when it issued its policy neither the defendant nor any of its agents had knowledge or notice of the existence of the policy of the Washington company; that Chira E. Agner and Carthesrine Boland and each of them failed to inform defendant of said insurance in the Washington Insurance Company; and neglected to secure consent of defendant company to said insurance; that defendant did not waive the provision of its policy prohibiting other insurance, and did not consent that said provision of its policy be abrogated. Wherefore it says that Clara E. Agner and Catherine Boland each failed to comply with the terms of the policy, and that by reason of the foregoing the policy is void.
    The third defense disputes and denies the amount of the loss; pleads that by the terms of its policy it is not liable for a greater proportion of the loss than the amount of its insurance bears to the whole insurance on the property; that the property was insured by the Washington Insurance Company in the sum of $1,500. As a fourth defense the defendant company pleads a stipulation of the policy that the same shall be void if the insured fails to make known any fact material to the risk, or conceals or misrepresents in any planner any material fact or circumstance concerning the insurance of the subject thereof, and that all fraud or attempt at fraud by false swearing by the insured touching the insurance, or any matter relating to it, whether before or after the loss, shall forfeit all claims under the policy; that within thirty days after the loss the insured shall render an account under oath of the loss, the actual cash value of the property insured, the amount of loss and when and how the fire, originated.
    Defendant says that plaintiff did furnish such statement at the request of Catherine Boland in which plaintiff falsely swore concerning this matter, and that plaintiff and Catherine Boland knew that the statement was false, and the same was made by plaintiff to defraud the defendant company; that plaintiff falsely swore as to the amount of insurance on the property at the time the fire, and as to the origin of the fire and plaintiff’s knowledge of it.
    As a fifth defense the defendant says that the policy stipulated that in ease of disagreement concerning the loss the matters in dispute shall be left to appraisers or arbitrators; that the loss is not payable until sixty days after such estimate and satisfactory proof of loss is received by the company; that defendant at once notified plaintiff that said proof was unsatisfactory and that it did not waive any provision of the policy; that by the terms of the policy no action is sustainable until these provisions are complied with by the insured, and that plaintiff has not complied with these conditions.
    A general demurrer was filed to the second, third, fourth and fifth defenses of this answer. This demurrer was overruled as to the third defense and sustained as to the second, fourth and fifth defenses. To the first and third defenses of the answer of said defendant company to her cross-petition Catherine Boland filed a general denial.
    Upon thé issues thus tendered by the pleadings and the evidence the case was submitted to a jury, which rendered its separate verdicts each against the defendant insurance company, one in favor of Clara E. Agner and one in favor of defendant Catherine Boland. Upon motion in that behalf and for a new trial the court set aside the verdict in favor of Clara E. Agner, and the defendant company thereupon filed its motion to set aside the verdict in favor of said Catherine Boland and for a new trial upon the issues raised by its answer and cross-petition and the answer of defendant company thereto, and the reply of Catherine Boland to said last named answer. The court overruled said motion and entered its judgment on the verdict rendered by the jury against defendant insurance company and in favor of Catherine Boland.
    The defendant insurance company seeks to reverse this judgment and finding of the common pleas court assigning as its causes that—
    1. The court erred in overruling defendant’s motion for a new trial.
    2. That the court erred in sustaining the demurrer of Catherine Boland to the second, fourth and fifth defenses in the answer of the defendant to the amended cross-petition of Catherine Boland.
    3. Erred in the charge to jury.
    4. Erred in refusing to charge as requested.

      5. That the court erred in rendering judgment in favor of Catherine Boland against defendant insurance company, and in not rendering judgment in favor of said defendant insurance company and against said Catherine Boland.
    6. And for other errors appearing upon the face of the record.
    The motion for a new trial urges that in addition to the specific charges in the petition in error:
    1. That thé verdict is against the weight of the evidence.
    2. That the verdict is excessive.
    3. Error in overruling the defendant’s motion to direct the verdict for defendant against Catherine Boland.
    4. Error in refusing to submit to the jury certain interrogations requested by defendant.
    5. Error in the admission of evidence over defendant’s objection and in requesting evidence offered by defendant.
    Addressing these various complaints to the case submitted to the jury (on the issues tendered by the pleadings) after action of the court upon the demurrer of Catherine Boland to the answer of defendant to her cross-petition, the record exhibits no error which warrants a reversal of the judgment. This being true, the assignment left for consideration goes to the demurrer and the judgment of the court sustaining the same as to the second, fourth -and fifth defenses. The second defense is a direct attack u-pon the validity of the policy, claiming that no contract of insurance was effected between the defendant Clara E. Agner, the owner of the property, and the mortgagor in the mortgage of Catherine Boland, and that because of this the mortgage.elau.se in the policy for the benefit of Catherine Boland’s mortgage interest in the property was without foundation and never caused a valid obligation of the defendant insurance company. The mortgagee intended to be insured. It was her contract with the mortgagor that her mortgaged interest should be insured, not by a void insurance policy, but by a valid insurance policy, by a valid contract of insurance. The defendant company intended to insure the mortgagee, not by mere pretense, but validly; not by an agreement that merely seemed upon its fact to afford protection to the mortgagee, but by a contract which in good faith and in fact did protect and was an insurance of her mortgage interest. This was in all respects the intention of all parties, and all this defendant might and does concede to be true, and that such insurance between plaintiff and defendant; and were it not fur-issued its policy of insurance there was other insurance on the property protecting the mortgagee as well as the plaintiff, and which fact prevented the conclusion of a valid contract of insurance between plaintiff and defendant, and were it not further for the false representations and concealments concerning this last named policy and the existence of it, by the plaintiff, the mortgagor, who obtained this influence in controversy, and the further fraudulent and false representations and concealments of plaintiff concerning the value of the property, the amount of loss, the 'cause of the fire, and other matter vital to the obligation of defendant to the plaintiff on the policy, and these are pleaded in defense to the claim of the mortgagee.
    These facts of the plaintiff who obtained the policy and to whom the policy was issued and these failures and defaults of the plaintiff to act, as the policy stipulated she should, act, in order that the contract be a valid contract between the plaintiff and the defendant company, are interposed in excuse of the obligation of the defendant company to the mortgagee. These defenses as against a general demurrer of the mortgagee the court hold not to be available, and that the vice pleaded which rendered the contract as between the assured, the mortgagor and the defendant company to be fraudulently concealed and void, is not fatal to the claim of the mortgagee under the contract of insurance with said company.
    It is written in this policy “that if with the consent of this company an interest in this policy shall exist in favor of the mortgagee or in favor of an interest other than the interest of the assured, the "condition. hereinbefore contained shall apply, in manner expressed in said provision of insurance relating to such interest, as shall be written upon, attached or appended hereto:”
    So it would seem that the conditions and provisions relating to the insurance and protection of the mortgagee’s interest, if .in conflict with the provisions and conditions “hereinbefore written” concerning the interest of the assured, then the provisions and conditions of the policy which are applicable to the contract as between the assured and defendant comp any, must give way and must be applied to the contract and cut such figure in it as are expressed in the provision- relating to such interest as shall be written upon, attached or appended to the policy.
    So that whether the contract of insurance concerning the interest of the mortgagee be conceived with the policy and concurrent with it, and written upon it, or whether it be a contract made after the -policy issued, and attached or appended to the policy, the provisions of said contract relating to such interest, which is not the interest of the assured described in the policy, shall control, and when the general conditions and provisions of the policy are applied to the contract of insurance which insures the interest that is not the interest of the assured. Wherefore it would seem that by the very terms of the policy'the contract insuring the interest of the mortgagee is recognized and treated and made as a contract of insurance between the insurance company and the mortgagee separate, distinct and apart from the contract which insures the interest of the assured, and such has been the interpretation of the courts in -eases to be found in the very excellent briefs of counsel on both sides of this case.
    ■ By the terms of the contract of insurance between the mortgagee and the defendant company it is stipulated “that terms of policy as to the interest of the mortgagee shall not be affected or invalidated by any act or neglect of the mortgagor, the applicant for insurance.”
    It is claimed by the defendant company that this stipulation refers only to acts and omissions of the assured after a policy has issued which in its inception afforded valid protection to the interest of the mortgagor, the assured, and that if the policy was void at its inception as to the mortgagor and her interest, then that the vice did not destroy a contract that was once efficient, but prevented any valid obligation because of the policy, not only as between the mortgagor and the defendant company, but also as between the mortgagee and the defendant company, and that no contractual relations arose from the policy oy were evidenced by it, or by any of its stipulations or by any stipulation that might be written on it, or attached or appended concerning any interest in the property described in the policy which was not the interest of the mortgagor, the assured, and all this because the acts of the assured, or the omission of the assured to act in matters leading to the contract relating to her and her interests, make it not a valid obligation at any time in her behalf.
    It is not 'claimed in the answer that Catherine Boland was an applicant in plaintiff’s behalf for insurance upon the interest applicant for this policy _or in any way concerned herself as an of the mortgagor. She made no representation which induced such insurance, and concealed no fact that, from her relation to the mortgagor and the defendant company concerning the interest of the mortgagor, the assured, she was called upon or under obligation to reveal.
    There was no act which the mortgagor, the applicant, was called upon to perform and which she, the applicant, omitted or neglected to perform concerning her, the applicant’s, interest which it was the duty of Catherine Boland to perform. There was no fact connected with the interest of the applicant, the assured, in the property described in the policy and material to the applicant’s risk which she, the mortgagee, in her relation as mortgagee was required to make known to the defendant company, and there is no allegation here in this behalf. So that no act on her part and no duty'unperformed by her made void, or tended to make void the contract of insurance between the plaintiff, Clara E. Agner, the mortgagor, and the defendant company; and any attack which the company might or could make upon the policy as it related to the mortgagor, could not by commission or omission forfeit the rights of the mortgagee, who held no right in the insurable interest of the mortgagor or concerning it.
    The defendant company contemplated the possibility of concealment and fraud by the applicant, the mortgagor, in obtaining her insurance and of concealment and falsehood concerning the property, the fire, the loss and otherwise, and discounted all this by proper provisions in its policy as to its liability in such event to the mortgagor under the policy, and it stipulated with the mortgagee that it would receive the premium from the mortgagor, applying the condition of the policy in which it provided against all these acts and omissions and concealments of the mortgagor, so as not to affect or make invalid its obligations to the mortgagee; and to make itself safe on its liability thus assumed in ease of loss, it stepped into the shoes of the mortgagee, and by its contract became and was subrogated to all the rights, liens, claims, security and indemnity of whatever character that the mortgagee had or could have eoneerning her interest in the property described in the policy, which so far as appears to the contrary would include the indemnity, if any, afforded by the policy of the Washington Insurance Company of Cincinnati, as well as all else by which her mortgage interest was in anyways protected.
    It would not appear that Clara E. Agner, the applicant for the policy, the person to whom it was issued, in whose favor it purported to insure an interest to which Catherine Boland was a stranger, could either make or destroy the contract between defendant company and the mortgagee', any more than could the mortgagee by her act or omission make or destroy the contract between defendant company and the mortgagor.
    That the contract of insurance between defendant company and mortgagee was male at the request of the mortgagor, we consider of no importance here. It was not a request that defendant company perform some duty or act, or create or assume some obligation which the mortgagee owed to any one. It was requested that the defendant perform a duty and comply with and carry out an obligation which the mortgagor, the applicant for the policy, owed to the mortgagee, Catherine Boland, so that the relation of principal and agent, as between the mortgagor and mortgagee could in no aspect of this controversy arise.
    We are of the opinion that the common pleas did not err in sustaining the demurrer to the second, fourth and fifth defenses of the answer of defendant company to the cross-petition of Catherine Boland, and finding no error in the record to the prejudice of plaintiff in error, we must affirm tlie judgment. The costs are adjudged against the plaintiff in error. Execution is awarded and the case is remanded for execution.

      J. W. Mooney, for plaintiff in error.

      Joseph P. Hanley, for defendants in error.

       Affirming Agner v. Firemen’s Insurance Co. et al, 2 N. P.—N. S., 254; affirmed by the Supreme Court, without report, 73 O. S., —.


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    INJURY FROM THE ESCAPE OF AN ELECTRIC CURRENT.
    [Circuit Court of Lucas County.]
    The Toledo Railways & Light Company v. Clara Rippon, Administratrix.
    Decided, June 23, 1906.

      Electric Wires^-Negligence in Permitting Current to Escape—Proximate Cause of Injury from Fugitive Current—Presumption of Ordinary Care—Burden of Proof—Charge of Court.

    1. A negligent act or omission to act becomes direct and proximate in its relation to a claimed event, when the event is the.natural and probable result of such negligent act or omission, and one which in the light of the circumstances should have been foreseen as likely to occur.
    2. To make negligence a proximate cause of an injury, it is not necessary that the precise result which occurred should have been anticipated. If in the light of the circumstances results of that general character should have been anticipated by ordinary foresight as likely to occur, that would, so far as that question is concerned, be sufficient.
    3. If, in the exercise of ordinary foresight, and the light of the circumstances, the negligent escape of a powerful current of electricity from the wires of a power company to those of a telegraph company should have been anticipated by the former as likely to occur, such negligence will be deemed the proximate cause of the death or injury of an employe of the telegraph company occasioned by his contact, while in the performance of his duties, with his employer’s wires so charged.
    4. A party is not held to the anticipation of extraordinary events; but storms deranging to some extent the wires of electrical companies are not extraordinary events, so unusual or unprecedented as to relieve such companies from the legal necessity of reasonable precautions to protect others from dangers caused thereby.

      5. The high degree of care to which a company may be held with reference to the control of a dangerous electric current, is only ordinary care in view of the danger to be apprehended, and the burden of proving that such care was not exercised is upon the one complaining of injury from the escape of the current.
    6. An intimation in the charge to a jury, that a presumption exists and remains throughout the case that the plaintiff was not guilty of contributory negligence, but exercise ordinary care, is not prejuthat negligence of the plaintiff need be shown by a preponderance of the evidence only.
    Wildman, J.; Haynes, J., and Parker, J., concur.
    This is a proceeding in error to reverse the judgment of the court below in favor of the administratrix of the estate of Robert Rippon, deceased, and against the Railways & Light Company, based upon the verdict of a jury for $4,000.
    Robert Rippon was an employe of the Western Union Telegraph Company, and while in the discharge of his duties, he was killed by coming in contact with an electric wire of that company which had been charged with a powerful and fatal current of ’electricity escaping from the wires of the Railways & Light Company.
    The case is not complicated by any particular dispute as to the negligence of the defendant company. By Section 3471-3 of the Revised Statutes of Ohio, the Railways & Light Company is charged with a certain duty of protection of its wires, so as to prevent the escape of a dangerous current of electricity therefrom. After providing that a company organized for -the purpose of supplying electricity for power purposes and for lighting streets and buildings of municipalities may have certain privileges and franchises essential to the carrying on of their work, the statute provides further that—
    “All wires erected and operated under the provisions of this act shall be covered with a waterproof insulation, and said poles, piers, abutments and wires shall be so located and arranged as not to interfere with the successful operation of existing telegraph and telephone wires.”
    The mischief here was caused, as the petition claims and the evidence, we think, sufficiently discloses, by the placing of one of the power wires carrying a large voltage of electricity in too close proximity to one of the wires of the telegraph company which had theretofore been conducted into the building and to a clock moved by the power of an electric current. The defendant power company, some two years or so after the telegraph wire had been so carried into the building and connected with the clock, placed one of its wires for the conduct of the larger and dangerous current within the same porcelain duct in the wall of the building, so that the two wires were brought almost in contact, and although at the start, perhaps, sufficiently insulated, the insulation was liable to become frayed and rubbed away by the friction of the wires against each other, by reason, of action caused by winds or storms or otherwise; and it is said that snow was liable to collect within the porcelain duct between the wires or against them, so as to afford further means for the passage of the current by induction from the one wire to the other.
    Just, previous to the fatal occurrence which is made the basis of this action, a severe storm had deranged the Avires of at least the telegraph company, and it had become necessary to do some repairing or remedying of the difficulty. It is unnecessary that I should go into the details. It is sufficient to say that while Mr. Rippon was engaged in restoring the wires to their proper state of usefulness and rendering them safe, by reason of the crossing of one wire with another he received the current of electricity in his body which caused his death. ¥e think there can be no question that the jury was justified in finding the defendant company negligent in the manner in which I have indicated. Not only did the evidence tend to show negligence in the placing of these two wires in juxtaposition or in dangerously close proximity to each other, but we think that the jury was abundantly warranted in finding such evidence sufficient.
    It is urged that the defendant power company owed no duty to an employe of the telegraph company. Probably it did owe no special duty to such employe; no duty other than that which might arise from the knowledge of the power company that the escape of a dangerous current of electricity from its wires might cause death or injury to any person, whether employed by the telegraph company, or who by reason of any other fact should come in contact with a wire of the telegraph company which, under other circumstances, would not be attended with danger. This question as to what duty was owed by the power company to any person who might be placed in peril by reason of its negligent act, is closely connected with the question of proximate or remote cause. This court has had occasion to examine with considerable care a case in which almost precisely the same question arose, wherein the firm of Marsh et al, of Norwalk, was one of the parties plaintiff associated with certain insurance companies, and Andrew E. Lang, receiver of the Lake Shore Electric Railway, and several other companies, were made parties defendant. The case is reported in 7 C. C.—■ N. S., page 405. This case affirmed the judgment rendered in the court below, and in Yol. 3, Ohio Laiv Reporter, beginning on page 635, will be found the entire charge of the trial judge, who, as it happens, was myself, in the court of common pleas. The questions involved in that case were so interesting, and, in some respects novel, that they called for a pretty careful examination of numerous adjudications under the comparatively new conditions which have arisen with the rapid progress of applied electrical science. In the charge, which was approved by the circuit court, I said to the jury:

      “A negligent act or omission to act becomes direct and proximate in its relation to a claimed event when the event is the natural and probable result of such negligent act or omission, and one which in the light of the circumstances should have been foreseen as likely to occur.”
    Now, the attorney for the plaintiff in error here urges that this event in the ease at bar, can not deemed proximate unless the defendant company could have foreseen the particular event as likely to occur. He does not so say in words, but that is the substance of one portion of his argument; in other words, that unless in the exercise of ordinary foresight the power company could have foreseen that an employe of the telegraph company, in repairing wires which had been somewhat demoralized by a storm would be placed in such a position of danger that the negligence of the power company might cause his injury or death by permitting a heavy crirrent of electricity to reach the wire of the telegraph company, such negligence would not render the company liable. But this question was met in the Marsh case, to which I have referred, in another part of the charge which I gave. Having charged with considerable detail and with some elaboration along the line of this question of proximate and remote cause, I said to the jury in qualification this:
    “In this connection it is proper that I say to you as I do, that to make negligence a proximate cause of an injury it is not necessary that the precise result which occurred should have been anticipated. If in'the light of the circumstances, results of that general character should have been anticipated by ordinary foresight as likely to occur, that would, so far as that question is concerned, be sufficient.”
    So here, if in the exercise of ordinary foresight the power company should have realized that the negligent escape of a powerful current of electricity from its wires might cause injury to a person however employed, however situated, and in whatever part of the city where the network of wires of these companies extends, then the negligence, if it resulted in injury or death to a person in any part of the city and however circumstanced, might be deemed the proximate cause of such injury or death.
    The compány, of course, was not held to the anticipation of extraordinary events. But surely a storm which deranges to some extent the wires of electric companies is not an extraordinary event; we have those occurrences a number of times in one season, perhaps. We know that the employes of the companies are required to go out immediately after storms to adjust the defects and troubles which have occurred by reason of the storms. These are not events which are unprecedented or unusual, so that the companies are not held to guard against them.
    I have, perhaps, dwelt too long upon the negligence of the defendant company and its relation to the death of Rippon, but it has seemed to me well enough to suggest these general principles, applicable to cases of this character, which are not unlikely to come with greater and greater frequency as the companies employing agencies of this kind multiply in number.

      The questions which have called for the larger discussion in this ease, grow out of the claims o.f the assumed hazard and contributory negligence of the decedent. Here the burden rested upon the defendant. It is claimed by the power company that there was sufficient evidence to show beyond dispute that this man ought not to have received the injury even if the defendant company was negligent; but we think that it was a fair question for the jury. It is urged with much earnestness by counsel for plaintiff in error, that the decedent was charged with the duty of inspection of the appliances of the telegraph company, and that in the exercise of his duties he should have discovered the dangerous condition of the wires at the point of entry into the building. We have examined the record. It appears to us that his duties called upon him to examine the electrical clocks of the telegraph company, but we are not convinced, as counsel seem to think we should be, that he must have known—that as a matter of law he should have known— that the power company had placed one of its highly charged wires in close proximity to a wire of the telegraph company. We think that the jury were justified in attaching some force to the fact that for a long time the wire of the telegraph company had remained in a reasonably safe condition, passing through this porcelain duct without being brought into the neighborhood of a dangerous wire. We think it not clear that in the examination of the clocks to see whether they were working rightly, his attention wordd necessarily be called.to the condition of the wires where they entered the building. Especially do we think that his attention would not necessarily be called to the fact that a change had been at some time made in the condition of the wires, from that which had existed for a long time before, when possibly he may have noticed them. Much more might be said upon this subject, but I think it enough to say that it was a question of fact, properly left to the jury for its consideration, and that the verdict is not so clearly against the weight of the evidence in this regard that either the court below or this court would be justified in disturbing it.
    It is said that the- court erred in some instructions in the general charge, and also in its refusal to give an instruction asked by plaintiff in error. One instruction to which reference has been made in argument, embodied in the charge of the court, is substantially that a presumption existed in the ease, and remained throughout, that the plaintiff was not guilty of contributory negligence, ■ or that he exercised ordinary care. I will not attempt to repeat the precise words and I will not stop to examine the record for a more exact ({notation, but I have stated the substance of the instruction with regard to which complaint is made. It may or may not be true that such a presumption of law exists. Persons in official positions are presumed to discharge their duties. Individuals, whether in official positions or not, are presumed to be innocent of wrongdoing. Possibly the same presumption may arise—we do not say that it does—that persons exercise that care which is ordinary exercised by persons of ordinary prudence. But at any rate, whether there be such presumption recognized by the adjudications of the courts or not, the instruction to the' jury that the decedent was presumed to have exercised ordinary care called for no other action on their part or consideration of the evidence, than that which the court finally gave to them; and that is, that the negligence, the lack of ordinary care, must be shown by a preponderance of the evidence. The court did not say, nor is the inference to be drawn from what was said, that the jury were required to do something more by reason of the suggested presumption, than to find negligence by a preponderance of the evidence. So, even if the court were technically wrong in saying this to the jury, no prejudice resulted from it.
    It- is said that the court erred in not giving after the general charge, an instruction which was asked by the plaintiff in error. I will not stop to read it. It is enough to say that the court had sufficiently covered the point in the general charge, and especially in a sort of a conversation which arose between the judge and counsel who is now criticizing the action of the court in' refusing to give the instruction finally asked. We think that the court did not err in refusing it.
    Some suggestion was made in the argument, in the discussion of the claimed negligence of the defendant power company as to the rule which will apply when a dangerous current of electricity is permitted to escape-from the wire of the company which should control it. The courts of the different states are not altogether in harmony upon this question. In one or more the rule has been adopted that a conclusive presumption of negligence arises in such a case. In other words, that it is negligence •per se to permit the current to escape. In other jurisdictions it has been held that while no such conclusive presumption arises, the burden shifts and that it becomes encumbent upon the company which permits the escape of the electric current to show that it was not negligent. In the Marsh case, to which I have referred, this question was fully considered. The authorities had been marshaled and examined, and in the consideration which I gave to the case in the court below, I concluded that the general rule should not be departed from and an exception introduced into our jurisprudence, and, therefore, I held that the burden- still rested upon the plaintiff to show the negligence of the defendant; that while the defendant under such circumstances may be held to a high degree of care, that it is still but ordinary care under the circumstances commensurate to the dangers to be apprehended, and the burden does not shift. The circuit court, as I have said, affirmed the conclusion of the trial court in this as in other respects, and that point was especially discussed by Judge Winch, who sat in the circuit court in my stead and delivered the opinion.
    No complaint is made as to the amount of the verdict in this case, and a search of the record fails to disclose any other matter in which the plaintiff in error has been prejudiced by any claimed errors. We think that the judgment of the court below should be affirmed.

      Smith & Baker and W. II. McLcllan, for plaintiff in error.

      G. A. Thatcher, for defendant in error.


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    LIABILITY FOR. DEATH OF LINEMAN FROM ELECTRIC SHOCK.
    [Circuit Court of Hamilton County.]
    The City & Suburban Telegraph Association v. Nellie Kelly, Administratrix.
    Decided, July 7, 1906.

      Electric Wires—Negligence of Company Using Uninsulated Wires—Contributory Negligence of Lineman—Pleading—Evidence.

    1. In an action against an electrical company for damages on account of the death of a lineman from a shock received while stringing an uninsulated wire, which came in contact with a highly charged and uninsulated wire of another company, the defendant is not entitled to a directed verdict in its favor on the ground that an employe of ordinary prudence would not have undertaken to do the work which the decedent was ordered to perform, and should have known that the wire of the second company was charged with a dangerous current and the' wire he was handling might come in contact with it.
    2. But in such a case it is error to admit testimony regarding the use of rubber gloves as a means of avoiding danger while stringing wires, where there is no specific allegation that the defendant was negligent in failing to provide the intestate with rubber gloves, and there is no general allegation opening the door to such evidence.
    Giffen, J.; Jelke, J., and Swing, J., concur.
    The plaintiff in her amended petition avers that Patrick Kelly, deceased, was in the employment of the defendant company in the capacity of lineman; that while thus employed he was assisting in stringing wires in the city of Cincinnati under instructions of the defendant company, and without fault on his part was instantly killed by an electric shock which passed through a wire which he was in the act of stringing upon the company’s poles. .The negligence, as finally averred, is as follows:
    “Said defendant company was guilty of gross negligence, in that it knowingly undertook to, and did string said wire which was not insulated, in close proximity to the wires of the Miami & Erie Canal Trolley Company, which were -uninsulated and dangerous, being heavily charged with electricity, all of which was known by the defendant company, its officers and managers and not known to plaintiff’s intestate.”
    The defendant by answer admits that plaintiff’s intestate was in its employ in the capacity of a lineman; that he met his death from an electrical shock while in the performance of his duty, but denies that he was unaware of the dangerous character of the work which he was employed to perform, and avers that the injuries causing his death were sustained without negligence on the part of the defendant company, and were the result of the negligence and want of care of plaintiff’s intestate or of his fellow-servant engaged in the work with him; and that the risk of ¿11 such injuries was assumed by said intestate; and denies each and every other allegation in plaintiff’s amended petition.
    On trial, the jury returned a verdict in favor of the plaintiff.
    The first alleged error is the overruling of the motion of the defendant at the conclusion of plaintiff’s evidence to instruct the jury to return a verdict for the defendant. While the plaintiff offered in chief no direct evidence 'of the knowledge of the defendant that the Miami & Erie wires were charged with electricity and therefore dangerous, yet the circumstances were such that by the exercise of ordinary care, it might and would have known of such condition and danger. It is claimed, however, that the danger was obvious to the intestate and that he therefore assumed the risk.
    We think the case is governed by the principle announced in the casé of The Van Duzen Gas <& Gasoline Engine Company v. Schelies, 61 O. S., 298, the syllabus being as follows:
    “1. A servant assumes only such risks incident to his employment as will happen in the ordinarily careful management of the business of the master ■ such as arise from the fault of the master are not assumed, and the servant may recover for injuries therefrom, unless his own fault contributed to the accident.
    ‘ ‘ 2. One who, as a servant, does that in his employment which he is ordered to do by his master, and is injured by the culpable negligence of the latter, is not deprived of a right to recover for the injury by the fact that it was apparently dangerous, if a person of .ordinary prudence 'would, under the circumstances, have obeyed the order, provided he used ordinary care in obeying it.
    “3. In such case the question is one of fact for the jury under proper instructions from the court.”
    Although it was apparent that the M. & E. wires were erected for the purpose of conveying electricity, it was not apparent to the linemen engaged in the work that such wires were at that time heavily charged with electricity, nor was it apparent that the wire being strung would come in contact with the M. & E. wire. It seems, therefore, that a person of ordinary prudence would, under the circumstances, have obeyed the order to perform the work as directed. The motion was properly overruled.
    The objection to the charge of the court upon the subject of assumed risk is not well founded, as the charge was even more favorable to the defendant than would seem to be warranted by the case above cited.
    Another alleged error is the admission of testimony concerning the use of rubber gloves as a means of avoiding danger in stringing wires. There .is no specific allegation in the amended petition that the defendant was negligent in failing to provide the intestate with rubber gloves, nor is there any general allegation which would warrant the admission of evidence of this character. It will be observed that the allegation of the amended petition is not that the act complained of was done in a negligent and careless manner, but that the act done as averred in the petition constituted negligence. There is no averment that the act was done without providing adequate means to protect the intestate, but that there was a failure to insulate the Wire being strung. Upon the trial, the evidence should be confined to the acts of negligence so specifically and definitely averred in the petition, and we think the court erred in receiving the testimony complained of, for which the judgment will be reversed, and cause remanded for a new trial.

      Oulcali & Foraher, for plaintiff in error.

      D. D. Woodmansee, contra.


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    LIABILITY FOR. LOSS OF HOGS NOT DRENCHED IN TRANSIT.
    [Circuit Court of Wood County.]
    The Lake Shore & Michigan Southern Railway Company v. James Gibson.
    Decided, January 12, 1906.

      Railioays—Liability of, for Negligence—Can not be Limited by Custom ' or Contract—Evidence—As to Overcrowding of Gar—Loaded with Iiogs and Sheep—Failure to Cool Hogs in Transit by Sprinkling.

    1. In casting upon a railway company the burden of a common carrier the law prescribes what it shall do, and the responsibility thereby assumed by the company can not be limited by any custom which it may itself establish or even by special contract, where the claim made against it is based on negligence.
    2. It therefore follows, in an action for recovery for the loss of hogs in transit, the allegation being that the hogs died from the heat by reason of failure to drench them properly, that the railway company can not absolve itself from liability by showing it was not its practice to throw water on hogs in the night time or at all unless so ordered by the shipper.
    Haynes, J. (orally) ; Parker, J., and Wildman, J., concur.
    James Gibson brought in the court of common pleas an action against the Lake Shore & Michigan Southern Railway Company to recover for the loss of certain hogs shipped from Luckey, this county, to Buffalo, N. Y. The shipment took place on the 4th of August, 1900, and it is claimed on behalf of the plaintiff that the hogs died by reason of the railroad company failing to properly drench the hogs, as it is termed; that is to say, from time to time during the day to spray them with water to keep them cool; and the allegations in the petition are that the defendant failed in that respect and it is, therefore, liable for the loss of the hogs.
    The defendant denies the allegation of the petition in that respect and sets up by way of defense that there was a special contract, but upon the trial of the case the testimony was that the special contract had never been delivered or accepted by Gibson, and the court ruled it out, so that it is not before us. The case was tried upon the issue made in the pleadings in regard to the matter of spraying or drenching. The hogs, it appears, were loaded in the afternoon into a car at Luckey and were sent to Toledo over the Ohio Central railroad, arriving there in the evening, and were picked up about eight o’clock, or such a matter, by the Lake Shore railroad and taken to Buffalo, where they arrived twelve or fourteen hours later.
    It is claimed, and evidence is offered tending to show, that the hogs when they were placed in the car by the plaintiff below, were overcrowded, that is, the cars were overloaded when the hogs were put in, and that was largely the cause of the death of the hogs; the hogs becoming overheated and scrambling, pushing and crowding each other in the car in their efforts to get air and rest. And it is urged that that is a matter of contributory negligence for which the plaintiff below should be responsible, and should exonerate the company.
    Perhaps it is well enough at this point to cite a case decided by the Supreme Court of Ohio, the ease of The Union Express Company v. Graham, 26 Ohio St., 595. There, there had been a shipment from Cleveland to Ravenna of a certain article of furniture that had been done up, not in a very careful manner, in fact done up in wrapping paper when it should have been boxed, and the court found that it could have still have been carried by the express company, if they had used extraordinary care and diligence. Judge White on page 598 said:
    “It is settled by a series of decisions in this state that a common carrier can not, by stipulation with his employer, exempt himself from liability for loss or damage occasioned by his own negligence or that of his servants.”
    That general rule does not apply here because there was no special contract as alleged, for it is ruled out. In the case cited, when the article of furniture came to the express office it was found it was not properly packed, and the express company refused to receive it except at “owner’s risk,” and it is Claimed that was agreed to. The court in the opinion say:
    “The present case is sought to be withdrawn from the operation of these rules by the fact that the property in question was not properly packed when delivered to the carrier; and it is claimed that, under the circumstances, the carrier is to be regarded as a mere bailee for hire. We do not assent to this view. The plaintiff in error, while engaged in the business of a common carrier, could not by agreement divest itself of that character. The only effect of the agreement was to relieve it from the ■ liabilities imposed by the common law on public carriers where there was no fault or neglect on the part of the carrier.
    “The carrier may well refuse to receive property; unless it is properly packed. But if he receives it the duty attaches of exercising due care for its safe carriage. If, notwithstanding such care, the property should be damaged through the defective packing of the owner, the carrier would be relieved from liability. But where, as in this case, the carrier takes charge of the property for the purpose of carriage, the duty rests on him to show that the injury is attributable to the defective packing and not to any fault or neglect on his part. This the plaintiff in error failed to show. ’ ’
    There is no special agreement in this case. The bill of lading is here, and it is a general bill of lading. In the trial of the case, testimony was offered on the part of the plaintiff as to the condition of the hogs, and the condition of the weather, and especially the condition of the hogs late in the day that they were taken. The testimony shows at the time the hogs were taken, two of them appeared to be affected by the heat. Nevertheless, the railroad company received these hogs and forwarded them. There is testimony tending to show that the railroad company has made provision for the drenching or spraying of stock at different points along the line of the road Toy means of a hose attached to water pipes at places where they take water, that the water is turned into the cars and thus drenches the hogs. The' plaintiff proceeded to show this fact, and further showed that it was the custom of the railroad company to sprinkle the stock; that they were sprinkled at different points along the railroad.
    The railroad company, when it came to its side of the case, offered testimony tending to show that the hogs were overpacke I or overcrowded in the loading; that is, that certain hogs were put in a car with a number- of sheep, and this packed the hogs too closely together and subjected them to injury by heat. There is testimony on the part of the plaintiff in rebuttal, tending to show that they were not improperly packed. The defendant desired to show that it was the custom and practice of the railroad company not to sprinkle hogs during the night season, and also testimony regarding their habit during the day not to sprinkle them unless it was ordered by the shipper, and some of that testimony was refused by the court.
    Some testimony was allowed to be given, however, in regard to the effect of sprinkling sheep, and in regard to the effect of sprinkling when hogs were packed in with sheep; it being claimed it was dangerous to sheep to sprinkle them with water when on the road because they would catch cold and become less marketable.
    These are called customs, and to the extent that they are in the course of business, the testimony offered by the plaintiff, we think, was admissible, brit we are unable to see that the court erred in refusing the testimony of the defendant. The effect of the testimony would be to limit the liability of the railroad company by its own customs. It could not do that. The law casts upon the railroad company the burden of common carriers and says what it shall do and it can not limit it by any custom they may undertake to establish themselves. They can not do it even by special contract if it is caused by negligence.
    We understand the rule of the Supreme Court is that when they received those hogs they were bound to use due care in the transportation of the hogs in protecting them from injury although they were overpaeked in the cars. Testimony was offered tending to show by some witnesses that they were over-packed, and that the packing resulted in the death of some of these hogs. Testimony was also offered tending to show that the air moving through the cars, when they were in motion, 'would be sufficient to cool the hogs. All of that testimony the court admitted, and so far as we can observe, the court also excluded the class of testimony which would tend to show a custom that would absolve the railroad company from liability and which, as I have stated, they are not permitted to do.
    We think that the court made a fair statement of the ease and a fair charge to the jury of the law of the case. We think that there was not sufficient care on the part of the agents of the railroad company during the day in regard to the sprinkling of these hogs; we think that it might have been done with a little care, without injury to the sheep. We are, therefore, dispose'] to allow the verdict of the jury to stand in the court of common pleas and the judgment will be affirmed without penalty.

      E. D. Potter and James 0. Troup, for plaintiff in error.

      Eel. B ever stock, for defendant in error.


text:
    PARTIES TO AN ACTION ON A GAMBLING DEBT.
    [Circuit Court of Cuyahoga County.]
    Ella M. Pentz v. George H. Burrows, as Assignee, etc.
    Decided, January 19, 1906.

      Gambling—Action to Recov.er Money Lost—Proper Parties—Joinder of Property Owner, Principal and Assignee of Principal—Primary Right, Remedial Right and Remedy—Statutes Relating to ' Gambling, Parties and Causes'of Action—Pleading.

    In an action for recovery of money lost in gambling, the principal to whom the money was lost, the assignee of the principal, and the owner of the property may be properly joined.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to the court of common pleas.
    The parties here are as they were below. Suit was brought by the plaintiff against Frederick J. Johnson and others, as partners under the firm name of Johnson, Walther & Co., George B. Burrows, as assignee of said firm, and Levi T. Schofield.
    The petition alleges that Johnson, Walther & Co. carried on a gambling business in rooms owned and leased to them by said Schofield, and that said business was so carried on with the full knowledge of said Schofield, who took no steps to recover the premises from said firm; that the plaintiff lost in gambling at said gambling rooms and paid to said firm on account of such loss in gambling the sum of $482.50; that after said loss and payment by her said Johnson, Walther & Co. made an- assignment for the benefit of their creditors to said Burrows; that she presented a claim for the money by her lost as aforesaid to said assignee for allowance, and such claim was rejected by him. She prays for judgment against all the defendants for said sum of $482.50, and that the defendant Burrows be ordered as assignee as aforesaid to allow her claim as valid.
    To this petition Burrows filed a demurrer, which was sustained, and -the plaintiff, not desiring to amend or plead further against him, final judgment was rendered in his favor. The grounds of demurrer are stated in these words:
    “First. There is a misjoinder of parties defendant.
    “Second. That separate causes of action against several defendants are improperly joined.
    “Third. That the petition does not state facts sufficient to constitute a cause of action against this defendant and in favor of this plaintiff.”
    Recovery is sought against Johnson, Walther & Co. under provisions of Section 4270, Revised Statutes, which reads:
    “If any person, by playing at any game, or by means of any bet or wager, loses to any other person any sum of money or other thing of value, and pays or delivers the same, or any part thereof, to the winner, the person who so loses and pays, or delivers may, at any time within six months next after such loss and payment or delivery, sue for and recover the money or thing of value so lost and paid or delivered, or any part thereof, from the winner thereof, with costs of suit, by civil action founded on this chapter, before any court of competent jurisdiction.”
    Recovery is sought against Schofield under provision of Section 4276, Revised Statutes, which reads:
    “Whenever premises are occupied for gaming or lottery purposes, the lease or agreement under which they are so occupied shall be absolutely void at the instance of the lessor, who may at any time obtain possession by civil action, or by action of forcible detainer before a justice of the peace; and if any person lease premises for gaming or lottery purposes, or knowingly permits them to be used and occupied for such purposes, and fail immediately to prosecute, in good faith, an action for the recovery of the premises, such lessor shall be considered in all cases, civil and criminal, as a principal in carrying on the business of gaming, or a lottery, in such building.’ ’
    The order for allowance of the claim by Burrows is sought under the provisions of Section 6352, Revised Statutes, allowing suit to be brought on claim' rejected by assignee, within thirty days of such rejection, the judgment, when claim is found upon trial to be valid, to be that the same be allowed by the assignee
    It is not urged' here, and could not successfully be urged, that this petition does not state sufficient facts to entitle the plaintiff to a judgment against the assignee.
    Was there, then, a misjoinder of causes, or a misjoinder of defendants ?
    Section 5058, Revised Statutes, provides that, “the plaintiff may unite several causes of action in the same petition * * *
    when the same are the same transaction or are transactions connected with the same subject of action.”
    By Section 5059, Revised Statutes, it is provided that “the causes of action so united * # * must affect all the parties to the action.”
    By Mr. Justice Ingraham, in the case of Robinson v. Flint, 16 Howard’s'Practice, 243, this language is used:
    “By transaction I understand the whole proceedings, commencing with the negotiation and ending with the performance of the contract, where the matter in controversy arises out of a contract, and I see no difficulty in carrying out under the present system of pleading, what is the fair meaning of the words used in the 167th Section. The answer is only to be a statement of facts showing that upon each count the plaintiff has no right to recover. The judgment, if on both claims, would only be for so much money, and 'there is no difficulty now in entering up judgment as formerly, even if the causes are in tort and contract. The only point upon which there would be doubt as to the proper proceeding, might be as to the execution. In one case (tort) it might be against the person, in the other against the property. The answer to this is, if the plaintiff thus unites claims, he loses his right to proceed against the body, and must be content with the other execution.” See, also, Howe v. Pechham. 10 Barber, 656, and Badger v. Benedict, 4 Abbott’s Practice, 176.
    The wrong for which plaintiff: in this action seeks a remedy is the loss by her, in gambling, and payment of the money so lost, to Johnson, Walther & Co. Everything depends on this and the liability of each defendant is connected with this subject of action. Failure to establish this transaction on her part will prevent a recovery against any one of the defendants. If she recovers against all, she .will have a joint judgment against Johnson, Walther & Co. and Schofield, because if the allegations of her petition are true, Schofield is, by Section 4276, Revised Statutes, made a principal with Johnson, Walther & Co. Her judgment against Burrows will be of a different character, but it arises out of the same transaction, viz., the gambling loss to Johnson, Walther & Co.
    The right against Burrows is different from that against the others, but the cause is the same. In Pomeroy’s Code Remedies, Sec. 454 (4th Ed.), it is said:
    ‘ ‘ The cause of action thus defined is plainly different from the remedial right, and from the remedy or relief itself. The remedial right is the consequence, the secondary right, which springs into being from the breach of the plaintiff’s primary right by the defendant’s wrong, while the remedy is the consummation or satisfaction of this remedial right. From one cause of action, that is, from one primary right and one delict being a breach thereof, it is possible, and not at all uncommon, that two or more remedial rights may arise, and therefore two or more different kinds of relief answering to the separate remedial rights. ’ ’
    See, also, Section 455.
    Do the causes of action affect all the parties defendant as required by Section 5059, Revised Statutes? Certainly, all arc affected by the transaction out of which all the rights of the plaintiff arise. All are not affected in the same manner, but this is not necessary. See Pomeroy’s Code Remedies, Section 480, old Section 374.
    The Ohio authorities cited by counsel have not been here discussed for want of time and because they are familiar to counsel in the case. It is believed that none of them conflict, when carefully considered, with the views herein expressed.
    Our conclusion is that the court erred in sustaining the demurrer of Burrows and rendering judgment in his favor, and the same is reversed and the case remanded to the court of common pleas.

      11. M. Bull and W. G. Rogers, for plaintiff in error.

      Geo. II. Burrows, for defendant in error,


text:
    FAILURE OF FIREMAN TO SIGNAL AT GRADE CROSSING.
    [Circuit Court of Hamilton County.]
    The Cincinnati, Hamilton & Dayton Railway Company v. Lipman Levy, Administrator De Bonis Non of the Estate of Florence S. Taylor, Deceased.
    Decided, January 13, 1906.

      negligence—At a Railway Crossing at' Oracle—Looking and Listening without Stopping—Failure of Flagman to Signal Banger—Questions for the Jury—Expectation of Life of Man and Wife.

    1. A traveler is never wholly absolved from using bis faculties to avoid danger, and in an action growing out of an accident at a grade crossing, a charge to the jury is erroneous which makes the railroad company liable on account of the negligence of the watchman in failing to signal danger, independent of the fact that the decedent and her- husband, who was riding with her, depended on the watchman more than on their own faculties to discover whether a train was coming.
    2. In such a case the extent to which the decedent and her husband used their senses to discover whether a train was approaching, or the degree of negligence, if any, of Which they were guilty, are Questions for the jury.
    3. While it is true that the burden of proving contributory-negligence is on the defendant, an exception arises to the rule where the plaintiff’s own testimony raises a presumption of contributory negligence.
    G-ifpen, J.; Jelke, P. J., and Swing, J., concur.
    This action arose from an accident that occurred at a railroad crossing where a flagman was maintained. Dr. Taylor, the husband of the deceased, testified that he had frequently observed a flagman seated in his box when no train was approaching the crossing; that on the occasion of the accident, he saw no flagman on the track; that-the door of the flagman’s box faced the east; that he approached the track from the west, his horse moving on a slow trot; that his view of the track in the direction from which the train was running was obstructed.

      The jury returned a verdict in favor of the plaintiff for the sum of $3,500, which the court reduced to the sum of $3,000, and rendered judgment therefor.
    It is claimed that the court erred in overruling the motion to arrest the case from the jury at the conclusion of plaintiff’s testimony. In the case of The Cincinnati, Hamilton c& Dayton Railway Company v. Walter F. Taylor, growing out of the same accident, this court held upon a- like motion that the court properly overruled a similar motion. The evidence in this case is substantially the same, and a like ruling will be made in this case.
    It is further claimed that the court erred in giving the following instruction in its general charge:
    “If the flagman was absent from his place of duty, or was not giving any signal or warning when she attempted to pass over the crossing, it is not contributory negligence on her part to drive through without stopping to look or listen, though the view is obstructed, in order that the cars' could have been seen a few feet away. ’ ’
    It will be observed that the decedent was not relieved by this charge of the duty of looking and listening only of the duty of stopping for that purpose. It is not entirely clear what is meant by “the absence of the flagman from his place of duty,” but inasmuch as the testimony discloses that the flagman was in the box at the side of 'the crossing, it must be inferred that the court intended to state only if the flagman was not on the crossing or not visible, so that any signal given by him could be seen by the decedent or her husband. Applying the charge to the evidence in the case, there is no error in giving it. See the case of Railroad v. Schneider, 45 O. S., 678.
    The following paragraph in the general charge is also claimed to be erroneous:
    “If you find from a preponderance of the evidence that the decedent knew there was a flagman at this crossing, that he was absent from his place of duty upon this occasion, or failed to give the signal of danger, and she had no other knowledge of the danger, the railroad company would be liable providing you find from the evidence the collision was the proximate cause of her death. ’ ’

      This charge makes the railroad company liable for the negligence of the flagman provided the decedent knew that a flagman was maintained at this crossing, and had no other knowledge of the danger, independent of whether she or her husband looked or listened for an approaching train. In the former case we said:
    “A traveler is never wholly absolved from using his faculties to avoid danger, and what would or would not amount to the exercise'of ordinary care depends upon the circumstances of each case, and is properly one 'of fact to be determined by the jury.”
    In the case of Tyler v. Old Colony Railroad, 157 Mass., 336, the last proposition of the syllabus is as follows:
    “If it is customary for a railroad corporation to have a flagman at a crossing at grade of a highway by the railroad, and he is absent, this does not excuse a traveler on the highway from looking to see if a train is coming before he attempts to cross the railroad tracks, where there is no obstacle to prevent his seeing.”
    And on page 340, the court say:
    “If it is customary to have one (flagman) at a crossing, and he ¡is absent, a traveler has a right to rely to some extent on this fact; but this does not excuse his not looking at all to see if a train is coming, Avhen there are no obstacles to prevent his seeing if he looks.”
    In the case of Cadwallader v. The Louisville, New Albany & Chicago Railway Company, 128 Ind., 518, the syllabus is as follows :
    “One Avho approaches a railroad crossing with which he is familiar, and attempts to cross without looking and listening for approaching trains, where it is possible to do so, is guilty of such contributory negligence as precludes him from a recovery if he is injured, although the crossing Avas supplied Avith a flagman, and the flagman did not give notice of the approach of danger. A person attempting to cross should not have the right to assume, from that circumstance, that no danger existed, and enter upon the railroad track Avithout looking. Had the flagman done anything to induce the appellant to attempt the crossing at the time she Avas hurt, or anything to throw her off her guard, then the question of her negligence would have been a question for the jury.”
    It does not appear from the testimony that the doctor or his wife wholly failed to use their senses to ascertain whether a train was approaching. The extent to which they did use them, or the degree of negligence, if any, in not using them, were questions for the jury which were excluded by that part of the general charge last quoted. It seems, therefore, that the charge was clearly erroneous and'prejudicial.
    The court also charged that the burden of proving contributory negligence is on the defendant. While this is true ordinarily, it is not so when the plaintiff’s own testimony raises the presumption of contributory negligence. We think in this ease the court should have qualified the charge in this respect. The evidence was sufficient to show that death resulted from the accident.
    It is also claimed that the testimony of the actuary pertained to the expectation of Doctor Taylor’s life alone, whereas the joint expectation of the doctor and his wife must control. It appears, however, from the bill of exceptions, at page 51, that the actuary did give the expectation of,the joint lives of a woman 45 years old and a man 84 years old. We think the doctor was qualified to testify as to the value of his wife’s services, although we may not agree with him in the amount fixed, nor were the jury bound by it.
    We are not disposed to disturb the judgment upon the ground that the damages are excessive, although it is not free from doubt.
    Judgment reversed, and cause remanded for a new trial.

      Biorison B. Waite, for plaintiff in error.

      Johnson & Levy, for defendant in error.