text:
    CHATTEL MORTGAGES.
    [Cuyahoga (8th) Circuit Court,
    October 28, 1901.]
    Caldwell, Hale and Marvin, JJ.
    Meckel Bros. Co. v. Vincent F. De Witt.
    1. Whether Interested Person can Act, Quaere ?
    A party to a deed or mortgage cannot act as an officer to take the acknowledgment of such deed or mortgage. Whether a party who has an interest in the property mortgaged or in the debt secured by such mortgage, can act as an officer in the acknowledgment of such instrument, quaere ?
    2. Notice oe such Interest as Mortgagee may have.
    A chattel mortgage regular upon its lace and appearing to be properly executed, is, when recorded or filed, notice of the interest of the mortgagee therein, notwithstanding there may be a hidden delect or the mortgagee’s interest may not be as stated in the affidavit.
    Heard on Error.
    G. S. Addams, for plaintiff.
    Serman & Serman, for defendant.
   MARVIN, J.

The plaintiff in error obtained possession of a piano under a chattel mortgage which had been executed by one Williams to A. D. Coe. This mortgage was assigned by Coe to the plaintiff in error; it was good as against Williams but by reason of not having been properly refiled, had become inoperative as against subsequent purchasers and mortgagees in good faith.

Before the mortgaged property had been taken possession oí by plaintiff in error and while said mortgage was so inoperative except as between the parties to it, Williams executed another mortgage upon the same property to the defendant in error; this was given on April 28,1897, and, upon its lace, purports to secure the payment of two promissory notes of that date, one for $188, and one for $61.09. DeWitt, on April 29, 1897, made the affidavit required by law to be made in order that a chattel mortgage shall be good as against subsequent purchasers and mortgagees in good faith; and on the next day, the mortgage was duly filed with the proper officer. This verification was made before Charles Seeman, a notary public.

DeWitt brought an action in replevin against the Merkel Bros.’ Company before a justice of the peace, and, after trial, and judgment in that court, the case was appealed to the court of common pleas ; it was there tried to a jury, and resulted in a verdict and judgment in favor of DeWitt, to reverse which judgment this proceeding in - error is prosecuted.

There is filed in this court a bill of exceptions containing all the evidence. It is urged there was error in the trial of the case in the court of common pleas.

The amended petition upon which the case was tried, is an ordinary petition in replevin setting out that the plaintiff has a special ownership in the piano which is described, by reason of the chattel mortgage made to him as hereinbefore mentioned; that the mortgage was properly filed, and that the defendant detains the mortgaged property from the plaintiff.

To that the Merkel Brothers’ Company answered, setting up the mortgage executed to Coe; that the Merkel Brothers’ Company had become the owner of such mortgage, and that, in an action in replevin brought by the plaintiff in error against the mortgagor Williams, said company was adjudged to be the owner of the piano; and denies all the other allegations of the petition. The defendant in error replied to this answer by a general denial.

Upon the trial in the court of common pleas, the claim was made by the plaintiff in error that the note for $188 mentioned in the chattel mortgage under which DeWitt claimed, was, in fact, owned at- the time of the execution of that mortgage, by Charles Seeman before whom DeWitt made the verification of the mortgage. No contest was made but that the other note described in the mortgage, was owned by DeWitt. Evidence was introduced on the part of tbe Merkel Brothers’ Company, tending in some degree, to show that this claim wras well founded, and that Seeman was in fact the owner of the larger note.

It is possible that, under the evidence in the case, if this question had been submitted to the jury for a direct finding upon that issue, it would have so found. The question was not, however, submitted to the jury by itself, but the court charged the jury “that if at the time of the execution of this mortgage and if at the time of the commencement of this action, J. A. Williams was indebted to the plaintiff and this mortgage was given to secure that debt, executed in good faith for that purpose, we think the plaintiff in this action, and so instruct the jury, the plaintiff would be entitled to recover possession of this property.”

Again, the court said to the jury : “ But we think that to entitle the plaintiff to recover, it must appear that Williams was at that time indebted to the plaintiff in some sum and that this mortgage was executed in good faith to secure it, and that such indebtedness exisfed at the time of the commencement of this action, that entitled the plaintiff to bring his action in replevin.

“ If he had no valid claim, that is, if Williams was indebted to him in no sum, and this was given without any consideration, then the plaintiff would not be entitled to recover. Otherwise, he would be entitled to recover in this action, — would be entitled to a verdict at the hands of this jury finding the right of possession in the plaintiff, with nominal damages.”

The court was asked, on behalf of the Merkel Brothers’ Company, to charge the jury in these words:

“If the jury finds that Mr. Seeman at the time of the execution of the mortgage from Williams to plaintiff, had not sold his claim to plaintiff, and that the $138 represented by the note submitted in evidence, was not due to plaintiff but was due to Mr. Seeman, the affidavit of plaintiff to mortgage is not sufficient to maintain the validity of the 'mortgage as against mortgagees in good faith.” This request the court refused to give.

At the close of the charge given, the court was further requested, on behalf of the Merkel Brothers’ Company, to charge : “ That if the officer taking the verification, was interested in the mortgage, it is not a good affidavit.” ' And this the court declined to give.

It was agreed between the parties at the trial, that if the jury found for the plaintiff, he should have the piano, and that if the jury found for the defendant it should have the piano. So that theré was no question as to the amount of damages, submitted to the jury.

It will be seen that the question is distinctly made, whether if Seaman, before whom DeWitt’s verification of his mortgage was made, was at the time interested in any part of the debt secured by it, the mortgage was valid as against subsequent purchasers and mortgagees in good faith.

If the fact of interest or ownership by Seeman in the $138 note at the time of the verification of the mortgage would render the affidavit invalid, then the charge given by the court was erroneous, and the refusal of the requests hereinbefore quoted, was erroneous because, as has already been said, the evidence was such that the jury might have found that Seeman was the owner of that note.

In refusing to give the last request, the court gave as a reason for such refusal, that a verification was made later by DeWitt, for the purpose of refiling the mortgage, before an officer not disqualified by reason of interest or otherwise.

It is plain that the court overlooked the fact that this last verifica- ■ tion was made after the commencement of the action in replevin brought by DeWitt, so that that reverification can cut no figure in the determination of the case here.

The law is settled beyond dispute, that a party to a deed or mortgage cannot act as an officer to take the acknowledgment of such deed or mortgage. And it is held by many authorities that a party who has an interest in the property mortgaged or in the debt secured by such mortgage, cannot act as an officer in the acknowledgment of such instrument. The authorities, however, are not uniform upon this point.

In the argument it was assumed that the same rule which should govern as to the acknowledgment of an instrument, would govern as to the verification of a chattel mortgage, under the statutes of this state, and, for the purposes of this case, it is proper, perhaps, to make such assumption, though the question is not here determined.

On the part of the defendant in error it is urged that whether See-man was the owner of the $138 note or not, the verification made by DeWitt before him, would be good and make the mortgage, when properly filed, notice to all the world of whatever interest DeWitt had in the debt secured by such mortgage.

That taking the acknowledgment of a deed or mortgage is held in-Ohio to be purely ministerial and in no sense judicial, is settled by Truman v. Lore, 14 Ohio St. 144, where, on page 151, Judge Peck uses this language in his opinion:

“ The magistrate does not exercise judicial functions in taking such acknowledgment. * * * His act, though official, is purely ministerial and the adverse party is not thereby precluded from showing the grantor’s legal incapacity at the time.”

In Ford v. Osborne, 45 Ohio St., Judge Minshall, at page 4 in the opinion, uses this language:

“ To say that the taking of an acknowledgment of a deed is a ministerial, and not a judicial act, is simply to say that it may be attacked collaterally; it does not impair its value as a certificate made by one acting under authority of law, not only in the matter of taking the acknowledgment, but also in certifying the same.”

In Darst v. Gale, 83 Ill. 137, the fifth paragraph of the syllabus reads:

“ The acknowledgment of a deed of trust taken by one of the trustees is void as to such .trustee, but, if the execution of the deed is proved, this will cure the defect.”

And, in the opinion, at page 143, this language is used by the court:

The acknowledgment was taken by Grove, one of the parties named as trustees. This, unquestionably, rendered the deed void as to him, but we fail to comprehend how it affected the deed as to the other trustees. He .and they had no community of interest, and his becoming disqualified, had no tendency to disqualify them.”

In Dussaume v. Burnett, 5 Iowa, 95, it is said in the syllabus:

“ An individual owning an interest or share in a tract of land, is not so far interested in the entire land, as to prevent him, in his official character, from taking the acknowledgment of a deed conveying to a third party another and distinct interest or share in the same land.
“ The fact that the grantee in a deed, and the party before whom the deed was acknowledged, had an agreement or understanding that each should purchase distinct shares in the same land, with a view to a joint speculation, might be a circumstance tending to show fraud, or a fraudulent combination, to impose upon the grantors, but in itself would not be sufficient to vitiate the deed.”

In Wilson v. Traer & Co., 20 Iowa, 231, the syllabus reads :

“ An acknowledgment of an instrument taken and certified by a person interested in it as grantee, should not be admitted to record; and a record thereof would not operate as constructive notice to a subsequent purchaser. ”

In this case the mortgage was to T. W. Traer & Co.; the acknowledgment was before J. W. Traer, a notary public, who was also a member of the firm to which the mortgage was made. And the holding is distinctly to the effect that though it does not distinctly appear from the instrument itself, that the officer before whom the acknowledgment was made, was interested in the mortgage, yet when that fact does appear, the mortgage must be held to be void ; and a number of authorities are cited in support of the proposition.

In the case of Titus v. Johnson, 50 Texas, 224, the fourth paragraph of the syllabus reads:

“ The efFect of the record of an instrument concerning lands, on its face regularly acknowledged, or proved for record and duly recorded, cannot be attacked by showing (1) that the officer who took the acknowledgment or proof had an interest in the land.”

And in the opinion in this case, on page 240, this language is used:

“ But here we are asked to hold the record of a deed ineffectual for the purposes for which it was required by law to be made, though in all respects apparently correct and in strict accordance with law on parol evidence adduced by subsequent purchasers long after the deed was recorded, to impeach not the genuineness of the instrument or the verity of the facts stated in the certificate, but to prove matters wholly extraneous thereto, with the view of showing that the officer by whom the certificate was made did not possess the capacity to give the certificate, or was not acting within the sphere of his duty. * * * Certainly we do not feel inclined, in the absence of authority in its support, to give our sanction to a doctrine so detrimental, in our opinion, to public interest, and so well calculated to undermine and destroy the foundation upon which the holders of recorded titles now rest in security.”

In Benson v. Olaf T. Hove, 46 Minn. 40, the second paragraph of the syllabus reads:

“ A chattel mortgage is valid between the parties without acknowledgment. For the purposes of record, it must be acknowledged; but where it does not appear from the instrument that the officer taking the acknowledgment is legally disqualified by reason of his interest in the estate or property mortgaged, the instrument may properly be received for record and such record will be notice to subsequent creditors and mortgagees.”

The case of National Bank v. Conway, 1 Hughes, 37, is a case decided by the United States circuit court for the eastern district of Virginia. In the opinion, page 40, Judge Hughes uses this language:

“ The teaching of the cases cited at bar seems to me plainly to be that an interested person may take the acknowledgment of a deed when the act is merely ministerial though if the act be judicial, such as taking the acknowledgment after privy examination of a married woman, an interested party cannot take.it.”

In Stevens v. Hampton, 46 Mo. 408, this language is used in the opinion:

“ In view, then, of the acknowledgment as affecting the right of record and the- question of constructive notice, the following would seem to be a reasonable rule: That when the recorded instrument shows upon its face, that the acknowledgment was taken by a party, or party in interest, it is improperly recorded, and is no constructive notice; but when it is fair upon its face it is the duty of the register to receive and record it, and its record operates as notice notwithstanding there may be some hidden defect.”

In the case at bar the instrument, upon its face, appears to be, in all respects, properly executed and the affidavit taken before a proper officer. That snch officer, if interested, could not maintain an interest in the mortgage as against subsequent purchasers, seems to be well settled, but how his interest should affect the rights of the party making the affidavit, to the extent of his interest in the debt secured by the mortgage, we fail to see. No one is prejudiced by holding that the mortgage was notice of his rights in the property. And from the authorities cited, and many others, it is clear that many courts of high standing have so held. And we hold that whether Seeman owned the $188 note or not, it being conceded that DeWitt was the owner of the smaller note, the mortgage as to him, to the extent of such ownership, was notice to the world. The result is, that the judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    BANKRUPTCY.
    [Cuyahoga (8th) Circuit Court,
    November 6, 1901.]
    Caldwell, Hale and Marvin, JJ.
    Joshua K. Exline et al. v. Jas. T. Sargent et al.
    1. Rule as no Purpose oe Bankruptcy Act.
    It is not the purpose of the bankruptcy act to release a bankrupt from debts which are the result of his own willful and malicious wrongdoing.
    2. Claim eok Alienating Wire’s Aeeections Not Released.
    A judgment for damages for the alienation of a wife’s affections is within Sec. 17 of the bankruptcy act of 1898, relating to “ willful and malicious injuries to the person or property of another ” and is not released by a discharge in bankruptcy.
    Heard on Error.
    W. C. Ong, for plaintiffs in error,
    cited:
    The discharge in bankruptcy shall release a bankrupt from all of Ms provable debts, except such as (1) * * * (2) Are judgments in actions for fraud, or obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another. Bankruptcy Act (1898), Sec. 17.
    In order that the judgment shall not be released, the injury to the person or property must have been wilful and malicious. Whether the act was wilful and malicious must be determined by the record of the court in which the judgment was recovered. Fo velan d Bankruptcy, p. 624; Flannigan v. Pearson, 42 Texas, p. 1.
    Whoever by fraud, persuasion or violence entices or takes a man’s wife away from him is liable to the husband for the injury thereby done him. 1 Amer. Ency. Faw (2 ed.), 163.
    The ground of such an action is the infliction upon the husband of some one or more of the following injuries :

    First — Dishonor of the marriage bed.
    Second — Foss of the wife’s affections.
    Third — Foss of the comfort of the wife’s society.
    Fourth — Value of her services, either total loss or as diminished.
    Fifth — Mortification and sense of shame occasioned by domestic wrongs. Cooley on Torts, p. 224.
    Next to the sanctity of the person comes that of the personal relations constituting the family. Depriving the husband of the society of his wife * * * is not less a personal injury, though a less tangible one, than beating or imprisonment. Webb’s Pollock on Torts, p. 269.
    In an action for the alienation of a wife’s affections, the husband is entitled to recover for the wrong and injury done to his feelings and character. Hartpence v. Rodgers, 45 S. W. Rep. 650 [143 Mo. 623].
    Before marriage the man and woman are endowed with the same personal right * * * in this state, neither the husband or wife unconditionally surrenders their personal rights by consummating the contract of marriage. On the contrary, each acquires a personal as well as legal right to the conjugal society of the other, for the loss of which either may sue separately. Westlake v. Westlake, 34 Ohio St. 621, 634 [32 Am. Rep. 397].
    Where it is claimed that such discharge does not bar the collection of a judgment on the ground that it is a debt created by fraud, within the meaning of the bankrupt act, the court will look back of the judgment, to the root and origin of the cause of action on which it is founded, in order to determine whether the discharge is a bar to the collection of such judgment. Howland v, Carson, 28 Ohio St. 625,
    E. J. Blandin, and Ed. S. Meyer, for defendants in error.
   MARVIN, J.

This is a proceeding in error brought to reverse the judgment of the court of common pleas of this county in a case in which the plaintiffs in error were plaintiffs and the defendants in error were defendants.

The plaintiff Uxline recovered a judgment in’ the sum of six thousand dollars against the defendant Sargent in the court of common pleas on or about June 26, 1900, an undivided one-half of which judgment he assigned to the plaintiff Ong. Execution was issued upon such judgment, which was returned wholly unsatisfied; whereupon these plaintiffs brought their action against the defendant Sargent and numerous others, it being alleged in the petition that the other defendants had in their hands or under their control certain property of Sargent liable to be applied to the satisfaction of this judgment; the purpose of the proceed]'ng being to have such property subjected to the payment of the judgment.

To this petition the defendant Sargent answered and, among other defenses made in such answer, is the averment that by proceedings duly had in the United States district court for the northern district of Ohio, the defendant Sargent was discharged in bankruptcy on November 3, 1900. And then this allegation is made: “ That the claim of plaintiff in his petition filed in the cause in which said judgment was rendered and entered, was as follows : ‘ That while the said plaintiff and his wife were living happily together, all of which the defendant well knew, the defendant (James T. Sargent) wrongfully intended to injure plaintiff and deprive him of the society and services of his wife, and maliciously poisoned the mind of his said wife against this said plaintiff * * * defendant maliciously enticed her away from plaintiff and caused said wife to lose the affection and love which she once sustained to plaintiff. That he so alienated the affections of said wife for this plaintiff that this plaintiff's wife applied for legal separation and obtained it on October 10, 1898. * * * That by reason of the premises above set forth, he has been wrongfully deprived of the affections, society and services of his wife.’ ”

This allegation of the answer was not denied by the plaintiffs and upon motion by the defendants for judgment on the pleading, the court gave judgment in their favor.

On the part of the plaintiffs in error it is urged that the discharge in bankruptcy, pleaded, did not operate to relieve the bankrupt from liability upon the judgment upon which the claim in the present case is founded.

Section 17 of the bankruptcy act provides, so far as it applies to this case, that “ A discharge in bankruptcy shall release a bankrupt from all bis provable debts except such as * * * (2) Are judgments in actions * * * for wilful and malicious injuries to the person or property of another.”

Unless the claim of the plaintiffs comes within the exception contained in the foregoing quotation from the statute, the discharge in bankruptcy operated to release Sargent from liability thereon.

Numerous authorities are cited in support of the proposition that a husband may have an action against him who seduces his wife from him, and it is urged that because of this, one is injured in his property when the wife is so enticed away.

It is not always true that one has property in that for injury to which an action may be maintained; that is to say, one may have aright of action for an infringement of his rights where no property is involved. If this were not true, the language of the bankrupt act itself, where it excepts from the debts of which the bankrupt is relieved by his discharge malicious injuries to the property and to the person of another, would be -tautological, because certainly one has a right of action against another for injuries to his person, and yet congress after using the word “ property ” adds the word “ person,” clearly showing that there might be injury to one’s person for which an action could be maintained which would not be an injury to his property.

On the other hand, it is urged, that property can never be separated from things; that strictly the word “ property ” means only the ownership in things and not the things themselves, but that, in its true sense, it includes no more than things; and it is, therefore, urged that there can be no property right invaded by the seduction of a wife.

An examination of the authorities, however, shows that many courts of last resort have held the word “ property ” to have a broader meaning.

In O’Hara v. Stack, 90 Pa. St. 477, it is held that the profession of a priest is property. This was in an action where a bishop of the Roman Catholic Church had, in violation of the laws of the church, prohibited a priest of the church from exercising his ministerial functions in the diocese.

In People v. Harry Cadman, 57 Cal. 562, it is held that the right to appeal to a higher court from the judgment of a lower court is property; and this was in a criminal action, in a case where Cadman was prosecuted, for having sent a letter to one Clune which contained a threat to expose him to disgrace if he did not withdraw an appeal which he had taken in a case which had been decided against him. The statute under which the prosecution was had, made it an offense to send a threatening letter “ with intent to extort any money or other property from another.” And the court held, as already said, that this offense was committed by the sending of such letter with intent to prevent the party from taking his appeal.

The language used in the opinion, at page 564, is :. “ Assuming, as we do, that the right to take and prosecute an appeal, is property within the meaning of the code, it follows that a threat made for the purpose of inducing an appellant to dismiss an appeal, is a threat made with intent to extort property from another.”

It is urged further on behalf of the defendant in error, that the judgment from the payment of which it is claimed that discharge in bankruptcy released Sargent, was not an injury to his person; and, strictly speaking, this is true; yet in Delamater v. Russell, 4 How. Pr. 284, it is held that an action for criminal conversation with the plaintiff’s wife was an injury to the person of the plaintiff. In the opinion, this language is used:

“ Section 179 authorizes the arrest of a defendant ‘ in an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of this state, or is about to remove therefrom, or where the action is for an injury to person or character,’ * * * I think the act complained of was an injury to the person of the plaintiff. It was an invasion of his personal rights. The action was brought for depriving the plaintiff of the comfort, society, fellowship, aid and assistance ’ of the wife. ”

Again, this language is used: <c It is not supposed that it was the intention of the legislature to excuse from imprisonment, judgment debtors in actions for crim. con., seduction of a daughter, or beating of a servant; and subject defendants to imprisonment in all other action for wrong; nor does the statute, in my opinion, demand any such construction. On the contrary, I think the language employed is used in its established legal signification, and though it might have been more explicit, covers the class of actions in question.”

In Tute v. James, 46 Ver. 60, 63, this language is used: “ The person consists of both soul and body.” It certainly may be well urged that one’s mind is subjected to great anguish and thereby injured by the seduction of his wife, and, if that which causes mental suffering, is an injury to the person, then this judgment was clearly for an injury to the person of the plaintiff.

In re Freche, 109 Fed. Rep. 620, decided in the district court of the United States for the district .of New Jersey on June 3, 1901, it was held that:

“ A judgment recovered in a court of New Jersey for seduction of the plaintiff’s minor'daughter, which must be based on loss of services but also includes damages for personal injuries to tbe plaintiff through being subjected to mental anguish, disgrace, etc., is one for a ‘ wilful and malicious injury to the person or property of another,’ within the meaning of the seventeenth section of the bankrupt act.”

See also the case of 4 Cush. 408.

It may be that it is a somewhat strained construction of words, to say that the judgment sought to be enforced in this action, was for a malicious injury to either the person or the property of the plaintiff, and yet it can hardly be supposed that it was the intention of congress to except from the operation of the discharge in bankruptcy those judgments obtained for a malicious assault upon one’s person or a "malicious destruction of one’s chattels, and not except such an injury as that for which this judgment was obtained. Doubtless, the real purpose of the exception was not to relieve the bankrupt from those debts which were the result of his own malicious and wilful wrongdoing; and the language used must have been intended for that purpose, and intended to include all such debts. If the claim made by the defendant in error is sound, then the bankrupt would be relieved from any judgment obtained against him for the killing of the plaintiff’s wife, for it could be urged in that case with as much plausibility as in this, that no injury had been done either to the person or the property of the husband.

We conclude, therefore, that the judgment sought to be enforced in this action, comes within the exception expressed in the words “ wilful and malicious injury to the person or property of another,” within the meaning of the bankrupt act; and the judgment of the court of common pleas is reversed.


author: VOORHEES, J.

text:
    ATTACHMENT-NONRESIDENTS.
    [Delaware (5th) Circuit Court,
    June Term, 1901.]
    Douglass, Voorhees and Donahue, JJ.
    George H. Thomson v. W. R. Ogden.
    1. When one Becomes a Non-Resident Under Sec. 5521, Rev. Stat.
    Where one voluntarily removes from one state to another for the purpose of discharging the duties of an office of indefinite duration, which requires his continuous presence there for an unlimited time, he becomes a non-resident of the former state for the purpose of attachment, although he may occasionally visit that state and entertain an intent to return and reside there at some uncertain time.
    2. Actuad Residence and not Domicile Determines.
    It is the actual residence of the debtor and not his domicile, which determines the status of the parties in attachment proceedings.

      3. Attachment Against Non-Resident Debtor Under Sec. 5521, Rev. Stat.
    A non-resident’s property, under Sec. 5521, Rev. Stat., is attachable when his residence is not such as to subject him personally to the jurisdiction of the court, and thus place him upon equality with the other residents of the state.
    Heard on Error.
    Hon. C. H. McElroy and W. A. Hall, for plaintiff in error,
    cited:
    The motion of the defendant, George H. Thomson, to discharge and dismiss the action, should be overruled.
    1. Because he has entered his appearance to the action, by calling in question the jurisdiction of court and asking the court to decide upon the sufficiency of the allegation upon which the action is founded. He thus questions the jurisdiction of the court over the subject matter and asks it to decide an issue upon the merits of the action. Notwithstanding the statement that he does not intend to enter his appearance, the courts of Ohio hold this to be an entry of appearance. Kinkead, p. 213, also p. 114; Elliott v. Lawhead, 43 Ohio St. 171 [1 N. E. Rep. 577], syllabus 5, pages 176 and 177. This decision is cited and approved in Railroad Co. v. Morey, 47 Ohio St. 207, 210 [24 N. E. Rep. 269], and other cases there named.
    The motion of defendant involves the merits of the case, by questioning the truth of the allegation of non-residence. The motion does not question the jurisdiction of the court because of any defect in service, but upon the subject matter. Handy v. Insurance Co., 37 Ohio St. 336, Syl. 2. Decision of Judge on pages 369-370-371. Also Railway Co. v. McLean, 1 Circ. Dec. 68; Evans v. lies, 7 Ohio St. 234, syllabus and decision; Maholm v. Marshall, 29 Ohio St. 611, 614; Smith v] Hoover, 39 Ohio St. 249, decision on page 257.
    2. The motion should be overruled because Thompson, the defendant, is a non-resident, within the purview of the attachment law of Ohio. He left Ohio with his family, located in Washington, D. C. and his place of abode with his family and his business has been there for many years, with no definite intention of returning. His temporary rights to Ohio, to exercise the right of citizenship by voting, does not make him a resident of Ohio within the meaning of the attachment statute. He voted with the intention of returning to his residence in Washington, D. C., and was not within reach of the ordinary process of court. Drake on Attachment, Secs. 65 and 67; 8 Am. & Eng. Enc. Law (1 ed.), page 291, Sec. 3; p. 292 and note 1 — p. 293, Sec. 3, and notes 1 and 2 ; page 295, Sec. 5 and note.
    The very object of the attachment statute against non-residents is to protect creditors against debtors who cannot be reached by the ordi-narv process of their local courts. The defendant is within this class and is amenable to this remedy. 16 Am. & Eng. Enc. Law (1 ed.), 720, Sec. 4 and note 2. The object of the attachment law should be considered. Horton v. Horner, 16 Ohio, 145,147 and 148; Carden v. Carden, 12 S. E. Rep. 197 [107 N. C. 214; 22 Am. St. Rep. 876, 877J, decision of court. The principle involved in this case is identical with the one hefore this court. McCann v. Randall, 17 N. E. Rep. 75 [147 Mass. 81 ; 9 Am. St. Rep. 666, 667].
    What is residence, within the meaning of the attachment laws ? Notes on Berry v. Wilcox, 62 N. W. Rep. 249 [44 Neb. 82; 48 Am. St. Rep. 706, 712, 713]; Munroe v. Williams, 16 S. E. Rep. 533, 535 [37 S. C. 81; 19 L- R. A. 665]; Carden v. Carden, sufra, is cited in this decision. Johnson v. May, 68 N. W. Rep. 1032, 1033 [49 Neb. 601]; 21 Am. & Eng. Enc. Law (1 ed.), 122 on “Resident.”
    Chas. W. Knight and Frank Marriott, for defendant in error.
   VOORHEES, J.

This action was one where defendant in error sought to obtain a lien by proceedings in attachment on certain real estate of the plaintiff in error, situated in the city of Delaware, county of Delaware, this state.

The ground for the attachment was, that the plaintiff in error, George H. Thomson, was a non-resident of the state of Ohio; and upon that ground alone, it was sought to obtain jurisdiction in the action, and secure a lien upon the real estate of plaintiff in error.

From the record it appears, that in October, 1883, the Cleveland Paper Company obtained three judgments before a justice of the peace against plaintiff in error; transcripts of the judgments were filed, and entered on the lien docket in the clerk’s office of Delaware county. In 1897, the judgments were sold and assigned to defendant in error, W. R. Ogden, November 27, 1899, one, Sarah Thomson, conveyed “The Delaware Gazette Block” to Henrj' C. Thomson and George H. Thomson. The judgments had become dormant, and on December 1, 1900, said W. R. Ogden, defendant in error, filed his petition in the court of common pleas of Delaware county, setting up, as his cause of action said judgments against said George H. Thomson, and at the same time filed an affidavit for attachment. The sole ground for the attachment was, that the defendant George H. Thomson was a non-resident of the state of Ohio. The order of attachment was levied on his one-half interest in said real estate. Service by publication was duly made in the action.

Defendant filed a motion to dismiss the attachment on the ground, that the allegation in the affidavit, that he was a non-resident of the state of Ohio, was not true; and by reason thereof the court had no jurisdiction over the subject matter of the action, or of the defendant.

The issue thus raised was submitted on affidavits and oral testimony to the court below, and the motion was overruled.

The record shows, that George H. Thomson was born in Delaware county, Ohio. In December, 1878, he was appointed to a clerkship in the United States treasury department at Washington D. C. He has been continuously so employed ever since.' He moved his family to Washington soon after his appointment. He kept house in that city, and his children were raised and educated there. He returned to said city and county of Delaware to vote at the state and national elections held in said state, and voted at such election in said city of Delaware.

The single question presented by the record is, whether, under the facts stated above, the court erred in overruling the motion to dismiss the attachment.

No controlling authority of our own state has been cited, or have we been able to find any authority in Ohio directly in point. Whether a person is a legal voter or not in the state, does not in our judgment determine the question here involved.

Under the attachment laws of this state, the real or personal property of a non-resident debtor is subject to attachment or garnishment by action in a court of competent jurisdiction, commenced in the county where the property is situate.

If residence, or non-residence, as used in the statute regulating attachment proceedings, are synonymous and convertible terms with domicile, as applied and used in general statutes in regard to questions of citizenship, voting, the disposition of property and the like, then the question we have here would not be difficult of solution. But we do not so understand the trend of decisions of our Supreme court. We, therefore, proceed with the inquiry, without any special reference to any statute, other than the one regulating attachments.

A general accepted definition of “residence,” when the term is used with reference to the qualification of voters, is synonymous with “domicile.” But when applied to attachment laws, “ domicile ” and “ residence” are not convertible terms, for domicile may be in one place and residence for the time being, in another. 1 Shinn on Attachment, Sec. 90, p. 148, says: “The term ‘non-resident’ in the attachment law, therefore, means one who has an abode in another state and again in Sec. 97, p. 153: “ Non-residence,” under attachment laws, ‘ is a fact and is to be determined by the ordinary and obvious indicia of residence. It cannot be determined by the place of the debtor’s political domicile. One may become a non-resident by living abroad, although by the fact of his intention to return, his political domicile will continue in the state.” Citing Keller v. Carr, 42 N. W. Rep. 292 [40 Minn. 428],

In Lawson v. Adlard, 48 N. W. Rep. 1019, 1020 [46 Minn. 243], syllabi, the court say: “ It is the actual residence of the debtor, and not his domicile, which determines the status of the parties in such proceedings” (attachments).

The facts in the case just cited were these: Adlard was a government employe; he owned a dwelling in the village of Brown Valley, Minn.; he was appointed government blacksmith at an Indian agency, in South Dakota; he took such furniture as was necessary to furnish the house occupied by himself and family at the agency; stored the rest in the upper story of his dwelling at Brown Valley, and rented the lower story for a time. At the end of fourteen months, he returned with his family to Brown Valley. In the meantime an attachment was procured against Adlard, on the ground of non-residence from the state of Minnesota. The district court vacated and set aside the attachment. The Supreme Court reversed the district court, and in the opinion, the court said: “It must not be determined by construing the word ‘ residence ’ as synonymous with the word ‘ domicile,’ for one absent from the state on business or pleasure, having the intent to return, may have a political domicile here, although his residence is elsewhere.”

In Carden v. Carden, 107 N. C. 214 [12 S. E. Rep. 197; 22 Am. St. Rep. 876] the Supreme Court held: “Where one voluntarily removes from one state to another for the purpose of discharging the duties of an office of indefinite duration, which required his continued presence there for an unlimited time, he becomes a non-resident of the former state for the purposes of attachment, although he may occasionally visit that state and entertain an intent to return and reside there at some uncertain time.

“ A non-resident’s property is attachable when his residence is not such as to subject him personally to the jurisdiction of the court, and thus place him upon equality with the other residents of the state.”

Returning again to the facts in this case. The plaintiff in error some twenty or more years ago received a government appointment in the treasury department at Washington, D. C., for an indefinite term of service; he moved with his family to that city, and has lived there ever since; he returned at election times to Ohio, and to the city of Delaware, and at such times voted in said city.

These facts bring his status within Judge Story’s definition of domicile ; which definition was adopted by our Supreme Court, in Sturgeon v. Korte, 34 Ohio St. 525, 535, viz: “ It is not, however, necessary that he should intend to remain there for all time. If he lives in a place, with the intention of remaining for an indefinite period of time, as a place of fixed present domicile, and not a place of temporary establishment, or for mere transient purposes, it is to all intents, and for all purposes, his residence.”

We are unable to distinguish any difference in rule or principle recognized by our Supreme Court in Sturgeon v. Korte, supra, from that in Wheeler v. Cobb, 75 N. C. 21. It is there said: “ That, without deciding, who, in law, is a non-resident in other respects, but confining the decision to the construction of the statute regulating attachment proceedings, the conclusion is, that where one voluntarily removes from this to another state, for the purpose of discharging the duties of an office of indefinite duration, which required his continued presence there, for an unlimited time, such a one is a non-resident of this state, for the purposes of an attachment, and that notwithstanding he may occasionally visit this state, and may have the intent to return at some uncertain future time.”

Non-residence, within the meaning of the attachment law, means the actual cessation to dwell within a state for an uncertain period, without definite intention as to a time for returning, although a general intention to return may exist.” Weitkamp v. Loehr, 53 N. Y. Sup. Ct. 83.

The determinal fact in such cases is, that the debtor must be a nonresident of this state, where the attachment is sued out, not that he must be a resident elsewhere; in other words, he must be so situated, that he has no abode or home, within the state, where. process can be served upon him. His property is attachable, if his residence is not such as to subject him personally to the jurisdiction of the court, and place him upon equality with other residents in this respect. Waples on Attachment 35.

We think, under the proof as shown in this record, the plaintiff in error comes within the rule recognized by the authorities above cited; and that he had such residence in the city of Washington, as to subject his real estate in the city of Delaware to attachment, under Sec. 552 L, Rev. Stat. of Ohio, and the court of common pleas did not err in overruling the motion to dismiss. The attachment and the judgment is affirmed.


text:
    MARINE INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    December 16, 1901.]
    Caldwell, Hale and Marvin, JJ.
    Marine Insurance Co. v. Walsh-Upstill Coal Co.
    1. Construction or Policy or Marine Insurance.
    A contract for insurance upon a printed form prepared and issued by an insurance company in which, following the address in the policy, it is stated: “ Insurance is wanted by The Walsh- Upstill Coal Company covering all shipments of the following description of articles, viz: sundry coal cargoes, belonging to them and as agents, at risk, and reported as herein stipulated,” etc., (the Roman being printed words and italics typewritten therein and the punctuation as given,) insures all cargoes which are at risk whether they are the property of insured as principal or as agent. The words “ at risk ” refer
    ‘ to the property and not to the parties or the agent.
    2. Party may Insure as Agent.
    While it is a rule of law that an insurable interest in the party who takes out insurance is necessary to the validity of the policy and that such interest must be a direct one, yet a party may take out a policy upon property held as agent, and such policies are binding in favor of the actual owner, though his name is not disclosed.
    3. Not Necessary to Disclose Principal, When.
    Where an application for or a policy of insurance speaks of the property as belonging to assured “ as agent,” this is sufficient to notify the insurance company that assured has a principal and that the insurance is for the benefit of such principal; and where the insurance company makes no inquiry as to who is the principal, it cannot be heard to complain that the principal was not disclosed.
    4. Agents may Sue Under Sec. 4995, Rev. Stat.
    Under the policy above referred to a suit by the agents in their own name is authorized by Sec. 4995, Rev. Stat., authorizing an executor, administrator or guardian, a trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, etc., to sue.
    Heard on Error.
    Goulder, Holding & Masten, for plaintiff in error.
    Roger M. Lee, for defendant in error,
    cited:
    Measure of recovery- 2 Phillips Insurance, Sec. 1226; Richards Insurance, Sec. 112.
    Action in name of real party in interest. Section 8993, Rev. Stat. and 4995, Rev. Stat.; Davis v. Harness, 38 Ohio St.' 397; Protection Ins. Co. v. Wilson, 6 Ohio St. 553, 563.
    A policy made in the name of a particular person “ for whom it may concern,” or with any other equivalent clause, will be applied to the interest of the party or parties for whom it is intended by the person effecting the insurance if such party has authorized its being made beforehand or subsequently adopts it; and parol evidence is admissible to show to whose benefit the insurance was intended. 1 Phillips Insurance, Sec. 363; .Richards Insurance, Secs. 131, 132; Protection Ins. Co. v. Wilson, 6 Ohio St. 553; Story Agency, Sec. 161; Rider v. Insurance Co., 20 Pick. 259.
    The language “ all shipments belonging to them, or as agents ” is equivalent to “ for whom it may concern.” Hooper v. Robinson, 98 U. S. 528; 1 Phillips Insurance, Sec. 409; Turner v. Burrows, 8 Wend. 144; Burrows v. Turner, 24 Wend. 276; Sunderland Marine Ins. Co. v. Kearney, 16 Adol. & El. 925; Shaumat Refining Co. v. Insurance Co., 12 Gray, 540 ; Farrow v. Insurance Co., 18 Pick. 53; Davis v. Bo'ard-man, 12 Mass. 80, 83; Waring v. Indemnity Fire Ins. Co., 45 N. Y. 606 [6 Am. Rep. 146]; Daniels v. Insurance Co., 5 Fed. Rep. 425.
    It is of no consequence that the Walsh-Upstill Company did not inform Hutchinson & Company that this insurance was for the benefit of the consignee. Mechem Agency, Sec. 796; Huntington v. Knox, 7 Cush. 371, 375; Davis v. Boardman, 12 Mass. 80, 83; Daniels v. Insurance Co., 5 Fed. Rep. 425.
    The Walsh-Upstill Company’s failure to inform Hutchinson & Company for whom this insurance was obtained did not amount to a concealment. 1 Phillips Insurance, Secs. 568, 571, 585; Nicoll v. American Ins. Co., 3 Woodb. & M. (C. C.) 529.
    It is not necessary, under such a policy, that the holder of the policy notify the insurer whether it is insuring as principal or as agent. This is a matter for the insurer to make inquiry concerning, if he desires to be informed, and if he fails to inquire, the holder of the policy is not required to give information upon the subject, nor is it guilty of concealment because it fails to do so. Hooper v. Robinson, 98 U. S. 528, 539 ; Davis v. Boardman, 12 Mass. 80, 83; Hale v. Burr, 12 Mass. 86, 88.
    Papers to be taken by the jury. Railroad Co. v. McCamey, 5 Circ. Dec. 631 (12 R. 543).
    Interrogatories for the jury. Ohio Rev. Stat., Secs. 52, 101; Sun Oil Co. v. Insurance Co., 8 Circ. Dec. 145 (15 R. 355); Union, etc., Ins. Co. v. McMillen, 24 Ohio St. 67; Manhattan Ins. Co. v. Filis, 32 Ohio St. 388.
   MARVIN, J.

Each of the parties to this action is a corporation. The defendant in error was plaintiff in the original action, and the plaintiff in error was defendant. The terms “ plaintiff” and “ defendant,” used in this opinion, refer to the parties respectively as they stood in the original action.

The defendant is a fire and marine insurance company organized under the laws of the United Kingdoms of Great Britain and Ireland, and is, in conformity with the laws of Ohio, authorized to do business as such in this state.

Suit was brought by the plaintiff for the use of the R. E. Elmore Company. The plaintiff was engaged in the city of Cleveland in selling, shipping and handling coal to be conveyed on shipboard to various points on the upper lakes. On April 26,1897, the defendant issued to the plaintiff a certain policy of insurance, a copy of which is annexed to the petition. This policy was issued, as stated therein, “as per contract dated April 1, 1897.” Such contract reads as follows :

“ Contract Proposition.” To the Marine Insurance Co., L’td, of London, England: Insurance is wanted by The Walsh-Upstill Coal Company covering all shipments of the following description of articles, viz.: sundry coal cargoes, belonging to them and as agents, at risk, and reported as herein stipulated, from the first day of April, 1897, until the first day of December, 1897, at and from lake ports, by the following routes, modes of conveyance and rates of premium, viz.:
“ From Lake Erie to Detroit and St. Clair river, and to Lakes Huron, Ontario, Michigan and Superior, 15 cents per $100.00 on standard sail and steam vessels not classing below A2J.
“ Bl vessels, 22J cents per $100.00.
“ Bl^ vessels, 30 cents per $100.00 to September 1st.
“ BlJ vessels, 40 cents per $100.00 to October 1st.
“ Bl-J vessels, 60 cents per $100.00 to November 1st.
“ Bl£ vessels, 75 cents per $100.00 to November 30th.
Subject to the conditions of Cargo Policy No.-of-Insurance Co., L’td, of-
“All shipments attaching under said Policy shall be valued at invoice cost with ten (10%) per cent, added unless otherwise agreed upon prior to shipment; each shipment to be reported to the agent of the said Insurance Co., at Cleveland, Ohio, as soon as receiving advices.
“ Shipments on any one vessel limited to $--. Premiums payable monthly.
“ Dated Cleveland, Ohio, April 1,1897.
“ Accepted-189--.
The Warsh-Upstirr Coar Co.
“ J. P. Warsh, Applicant,
“ General Manager.
“Hutchinson & Co., Agents.
“This contract is not binding until approved by C. A. Macdonald & Co., Gen’l Agents.”

That this contract was so approved, is evidenced by the policy issued thereunder which was signed by C. A. Macdonald & Co., and.in which this contract proposition is directly referred to.

On November 28,1897, the plaintiff shipped a cargo of coal from Cleveland, consigned to the R. P. Elmore Company at Milwaukee, Wisconsin, on the steam propeller “Egyptian,” On the same day the plaintiff reported such shipment to the agents of the defendant at Cleveland and such agents endorsed such shipment and the insurance thereof in the sum of $8,990.72, at a premium of $5.99, in the endorsement book used in connection with said policy of .insurance. The cargo thus shipped consisted of. 1,836 tons and 900 pounds of coal, of which 1-713 tons and 600 pounds had been sold by the plaintiff to said Elmore Company and 223 tons and 100 pounds had been sold by the Evan Morris Coal Company to the said Elmore Company; both sales to be delivered at Cleveland on board ship by the seller.

On the night of December 1, 1897, while making the voyage with said cargo of coalto Milwaukee, said steamer “Egyptian” caught fire and burned to the water’s edge and said cargo was totally lost. Proper notice and pi oofs of such loss were served upon the defendant, and the prayer of the petition is for judgment for the amount of the indemnity in the report entered upon the endorsement book as hereinbefore mentioned.

The trial resulted in a judgment for the plaintiff for $4,633, being the amount of such indemnity together with interest. A bill of exceptions, with all the evidence adduced at the trial, is filed with the petition in error in this court.

It will be noticed that at the time of the loss no part of this coal was owned by the plaintiff, all of it having become the property of the Elmore Company when delivered on shipboard at Cleveland. The claim of the plaintiff is, that though it had no ownership in the coal at the time of the loss, it was the agent of the Elmore Company in securing the insurance and shipping the coal, and that by the terms of its contract under which the policy was issued, such policy covered as well coal shipped by it as agent, as that shipped by it as owner, and that the words of the contract, “ covering all shipments of the following description of articles, viz: sundry coal cargoes, belonging to them and as agents, at risk, and reported as herein stipulated,” etc., is, in effect, a contract to insure such cargoes of coal as should be shipped by it as owner, and also such as should be shipped by it as agent.

This contract is upon a printed form of the insurance company, and it is a part of the sheet of paper on which is the printed policy itself. After the address in the policy, to the insurance company, these words are in print, “ Insurance is wanted by;” then follow in typewriting, the words, “ The Walsh-Upstill Coal Company then follow, in print, tire words, “ covering all shipments of the following description of articles, viz.;” then follows these words in typewriting, “ sundry coal cargoes;” then, in print, the words “ belonging to;” then, in typewriting, “ them and as agents;” then in print, “ at risk, and reported as herein stipulated,” etc. All of this typewritten matter is written in blank spaces left for that purposes in the printed form.

Stress is laid by the defendant upon the fact that after the words “ at risk ” is a comma; and it is said the period which follows the typewritten words “ them and as agents,” should not be construed as separating from the printed words “ at risk,” and that, therefore, the true meaning is that the insurance provided for is upon cargoes which belong-to the plaintiff as owner, or such as such plaintiff has a risk in as agent ; that except upon cargoes owned by the plaintiff, there is no insurance provided for unless the plaintiff has a risk in the property as agent of the owner: While on the part of the plaintiff, it is contended that the printed words “ at risk,” refer not to the agent but to the property, and that, therefore, the true interpretation of the contract is that the insurance is upon all cargoes which are at risk from some of the perils insured against, whether such cargoes are owned by the plaintiff or they be cargoes owned by those for whom the plaintiff is agent.

It is said that this construction is strenthened by the fact that there is a blank left in the printed form, between the printed words “ belonging to” and the printed words “at risk” with the comma following the word “risk,” and that on the part of the insurance company who prepared this blank it must have been understood that something would be written in., this blank other than the name of the party with whom the insurance company contracted ; otherwise, the words “ the assured,” or equivalent words would have been printed in this blank space; that the insurance company must have understood that the name of somebody other than the assured, -was to be written in this blank space, and that the words “ at risk ” clearly refer to the cargoes or other property which should be named in the blank space where the words “sundry coal cargoes ” are now typewritten.

This seems to us the true construction of this contract. If the contract is at all ambiguous on this point, it seems a much less strained construction' to saj^ that the words “ at risk ’’ in the printed form, refer to the property to be insured rather than to the parties for whose benefit the insurance should be taken out.

Defendant calls attention to a large number of authorities in port of the proposition that an insurable interest in the party who takes out the insurance, is necessary to the validity of a policy of insurance, and that such interest must be a direct one. Among other authorities, 1 May on Insurance, Sec. 74, is cited, which reads:

“ When there is no interest at all to be protected, a policy of insurance will be invalid as counter to the spirit and purpose of the contract as well as against public policy.”

. As a general proposition, this is not disputed by the plaintiff, and indeed, is so thoroughly supported by the authorities that it cannot be disputed. Notwithstanding this, it is held by numerous authorities, many of which are cited and quoted from in the brief of the plaintiff, that policies ot insurance issued to the agents of the owners of the property insured, are binding upon the insurance company in favor of the actual owner.-

. In Protection Insurance Co. v. Wilson & Co., 6 Ohio St. 554, the first clause of the syllabus reads :

“Insurance brokers,- holding an open policy of insurance for themselves and whom it may concern, may, in case of damage to property covered by their policy, maintain in their names an action for the use of the owners, although the latter are not named in the policy, if it sufficiently appear that the insurance was procured for their benefit.”

In this case, Wilson & Company had received from the insurance company an open policy to “themselves or whom it may concern,” which became operative by the endorsement of Samuel K. Mack, the agent of the company, to the extent named by him. The property insured was owned by various parties for whose benefit the suit was brought by Wilson & Company. In the opinion, on page 559, Judge Bowen uses this language:

“Wilson & Co., in perfecting this insurance, were the agents oi the several owners of the cargo. They acquired and held an interest ior them to the amount covered by the insurance. They stood in the light of the mutual agents of the insurers as well as of the insured. Shaw & Co. (who were forwarding merchants), were interested only in shipping the goods to their owners, and in procuring for them the insurance which was desired. They acquired no insurable interest themselves, nor any right to sue. But Wilson & Co. occupy quite a different relation to the consignees. They procured and held, in their own names, but lor those whom it might concern, the policy and its indorsement. An interest covered by the insurance, was thus created, which it is'proper for them to enforce, and which i's of such a nature as authorized the suit to be brought and carried on in their names- for the use of those who have sustained the -loss/’

In Hooper v. Robinson, 98 U. S. 528, the first clause of the syllabus reads :

“ A policy upon a cargo in the name of A, ‘on account of whom it may concern,’ or with other equivalent terms, will inure to the interest of the party for whom it was intended by A., provided he at the time of effecting the insurance, had the requisite authority from such party, or the latter subsequently adopted it.”

Story on Agency, Sec. 161, uses this language :

“So if an agent should procure a policy of insurance in his own name for the benefit of his principal, the agent as well as the principal may sue thereon.”

In Davis v. Boardman, 12 Mass. 80, a policy of insurance was issued,’ containing these words:

“ ‘ Mr. Samuel Davis, or as agent, doth make insurance and cause to be insured, lost or not lost, the sum of three thousand dollars on the hull and appurtenances of the brig Eliza and one thousand dollars on her cargo from Bath to Cork.’ ”

On page 85 of the opinion, this language is used:

“A policy written in the old form, viz.: ‘as well ,as in the plaintiff’s own name, as for and in the name and names of all and every other person or persons, to whom the same may appertain,’ etc., would have better expressed the intent of the parties. But that form has been disused in this state for twenty years past; and probably was not familiar to the broker, nor to any of the parties concerned. When the defendant agreed to insure for the plaintiff as agent, either he was informed that Richardson was the principal, or he waived all information on the subject. In either case the policy is equally valid and effectual.”

In Waring v. Insurance. Co., 45 N. Y. 606 [ 6 Am. Rep. 146], this language is used in the syllabus :

“A person may insure in his own name the property of another for the benefit of the owner without his previous authority, and such insurance will inure to the party intended to be protected if adopted by him, even after loss has occurred. It must be shown that insurance of the owner was the intention of the person effecting the insurance, when the contract was made.”

In Daniels v. Insurance Co., 5 Fed. Rep. 425, this language is used by Judge Gresham in the opinion at page 429 :

“If a policy runs to A B, for whom it may concern, or A B, as agent or in some trust capacity, an action at law may be brought in case of loss, in the name of A B, disclosing the name of the real party in interest, or by the real owner of the property.”

From these and numerous other authorities, it seems clear that the plaintiff here might take out a policy upon property not owned by it, though simply acting as agents for the owner, the policy running to it as agent and the company be bound by such policy. The language of this contract as already quoted, speaks of the property as belonging to the plaintiff a?id as agents. Surely the words “as agents” were sufficient to notify the defendant that the plaintiff had a principal for whom it was agent, or might act in taking out insurance, and that so acting for such principal, the insurance was for the benefit of such principal, and so long as the defendant made no inquiry as to who was such principal, it cannot complain that the principal was not disclosed to it.

It is complained on the part of the defendant that the court erred in its charge to the jury. The court said, among other things :

“ If you find that the coal mentioned in the petition was the property of the R. E- Elmore Company from and after the time it was placed upon the steamer ‘ Egyptianthat prior to or at the time of such shipment the said The R. E. Elmore Company requested the plaintiff, as its agent, to insure said coal for the benefit of said The R. E. Elmore Company ; that plaintiff reported said shipment to the defendant’s Cleveland agents on November 29, 1897, and that defendant’s said agents, upon receiving such report, signed their firm name opposite the entry of such report, in the plaintiff’s policy book in which insurance under said policy was regularly entered and endorsed; then I charge you that said cargo was regularly and properly insured by the defendant in iavor of, and in the name of the plaintiff as agent of the R. E. Elmore Company, and, in that event, if you find the other facts set forth' in the petition in favor of the plaintiff, then the plaintiff is entitled to recover in this action as agent for the R. E. Elmore Company the value of this coal, that is, its value on board the vessel at Cleveland, November 29, 1897.”

In other parts of the charge, the court uses language to the effect that the words of this contract are as binding upon the company as though the name of the owner had been disclosed in the contract. All of this is complained of. What has already been said, indicates what we hold on this point, and that there was no error in the charge of the court.

Much is said in the defendant’s brief, about what constitutes an open policy. It is unimportant under what designation the contract here sued upon comes; if the words are equivalent to those used in many policies, “for whomuit may concern,” then the insurance was binding upon the company for the benefit of the owners and the suit was properly brought by the plaintiff under Sec. 4995, Rev. Stat., which reads:

“ An executor, administrator, or guardian, a trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted; and officers may sue and be sued in such name as is authorized by law.”

The first and second requests to charge, made by the defendant, were properly refused. The reason for such refusal is justified by what has already been said in this opinion.

The refusal to give the. third request was not prejudicial to the defendant in view of what was said in the charge.

Without going further into a discussion of the case except to say that the evidence clearly shows that the plaintiff was the agent of the Elmore Company, authorized to effect insurance upon this cargo, we find no error in the record justifying a reversal, and the judgment of the court of common pleas is affirmed.


author: COOK, J.

text:
    RAILROADS — NEGLIGENCE.
    [Lake (7th) Circuit Court,
    October Term, 1901.]
    Burrows, Bauble and Cook, JJ.
    Lake Shore and Michigan Southern Railway Co. v. A. G. Reynolds, Admr.
    1. Watchmen and Appliances at Railroad Crossings, Unnecessary, When.
    Where a highway crosses a railroad outside of a municipality, the only tracks being the two main tracks for use of regular trains, and there is an unobstructed view both ways of approaching trains for a distance of six or seven hundred feet when within forty feet of the tracks upon the highway, the railroad company is under no obligation to have a watchman or maintain appliances not required by the statute, to warn travelers of approaching trains. The B. S. & M. S. Ry. Co. v. Gaffney, 6 Circ. Dec. 94 (9 R. 33), approved and followed. i
    2. Necessity to Book and Bisten in Such Case.
    In such case, when there is nothing to divert the attention of the traveler on the highway as he spproaches the track, it is error to instruct the jury “ that ordinary prudence requires that a person in full possession of his faculties of seeing and hearing, when approaching a known railroad crossing, use his faculties for the purpose of discerning and avoiding danger from approaching trains and his failure to do so without reasonable excuse therefor is negligence.” The jury should have been instructed unqualifiedly that it was his duty to use his senses and look and listen for approaching trains.

      3. Negligence oe Engineer in not Seeing Traveler.
    In suck case it is error to charge the jury that if the engineer in charge of the locomotive, as a reasonable and ordinarily prudent person, by the exercise of ordinary care could or should have seen and known of the perilous position of the traveler upon the highway, and afterwards by the exercise of , ordinary care should have checked-or stopped the train and thereby prevented the injury the company would be liable, notwithstanding the negligence of the traveler; the true rule being that the engineer must have seen and known of the perilous position of the traveler and not might have seen and known by the exercise of ordinary care. Railway Co. v.' Kassen, 49 Ohio St. 230. distinguished, and Railway Co. v. Schade, 8 Circ. Dec. 316 (15 R. 424) and Railway Co. v. Rhlert, 10 Circ. Dec. 443 (19 R. 177), disapproved.
    Heard ON Error.
    Theo. Hall, for plaintiff in error.
    A. G. Reynolds, Bosworth &] Hannan and C. W. Osborne, for defendant in error.
   COOK, J.

Edward C. Corlett, plaintiff’s intestate, was killed on the afternoon of September 15,1897 while attempting to cross with a horse and buggy the tracks of the Lake Shore and Michigan Southern Railway Company at what is known as “ Casement Crossing ” about a mile from Paines-ville in this county. The crossing is a diagonal one and the highway for a short distance is close to the tracks bub not sufficiently near to make it in that respect especially dangerous. Corlett was traveling in a southwesterly direction, the tracks running east and west at that point. The easterly view of the railway from the highway at some points as you approach the crossing is obscured for two or three thousand feet by houses, trees, undergrowth and particularly by a cut and curve; the evidence however conclusively shows, that a traveler on the highway, sitting in a buggy as Corlett was at the time he was killed, has a full and unobstructed view eastward of approaching trains for a distance of six to seven hundred feet anywhere from a point forty feet on the .highway to the north rail of the north track. No one was in the buggy with Corlett; his horse was not unmanageable; no other train was approaching; no one else was on the highway; the view was not obstructed westward, and he was traveling at a slow rate of speed.

With these conceded facts in the case, two objections are made to the judgment of the court of common pleas: First. That the court erred in its charge to the jury and, second, that the verdict is against the evidence.

The first objection made to the charge is respecting the necessity of having some appliance at the crossing for the protection of travelers upon the highway. The clause of the charge objected to is as follows:

“ There is no rule of law in Ohio requiring a railway company to keep a flagman or watchman at a railroad crossing outside of a municipality and the absence of one is not of itself negligence. But it was the duty of defendant, if it should appear that this particular crossing was exceptionally dangerous, to adopt such measures as common prudence, and a reasonable and just regard for the public safety should dictate to secure to the plaintiff’s decedent a reasonable degree of safety in his proper and legitimate use of the crossing. The court cannot say whether or not the crossing in question did require on the part of the defendant any particular appliances to safeguard the public or require any other measures than those taken by the defendant, but it is for you to determine from the evidence under all the circumstances of the case whether or not the defendant did take such measures at that crossing as common prudence demanded should be taken to secure the plaintiff’s intestate when using said highway at the crossing in a reasonable degree of safety in his right to use the crossing, and in determining that question you have a right to take into consideration, the condition of the crossing; its dangers; whether or not a flagman was stationed there; what obstructions there were, if any, to the view; whether or not signals were given, and all the facts and circumstances, surrounding the crossing at the time; and if you find by a preponderance of the evidence that the defendant did not use such ordinary care in protecting the decedent at said crossing as common prudence dictated, such want of care on the part of the defendant would be a circumstance which you should consider in determining whether or not the defendant was guilty of negligence, and if you should find that it was the proximate cause of the death of plaintiff’s intestate it would authorize you to return a verdict in favor of the plaintiff.”

By this clause of the charge the court instructed the jury that if they should find that the crossing was an exceptionally dangerous one, then it was the duty of the company to keep a flagman at the crossing or have some appliance to safeguard the public in the use of the crossing.

As we have stated, this crossing was outside the city. The travel upon the highway was no greater than what is usual upon a country road. It was not within yard limits where there was a network of tracks, there being only the two main tracks ; the railway company had done nothing to make this crossing exceptionally dangerous; it had placed no obstructions within the danger line interfering with the vision, and the trains were the ordinary through trains of the company. Under such circumstances we think the company was under no obligation to take further precautions than those prescribed by statute.

This case differs entirely from Cleveland, C. C. & I. Railway Co. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321]. In that case the crossing was over a street in the city of Cincinnati; the street was in a populous part of the city and was generally traveled; there were a number of trains which were used for switching which added greatly to the danger of using the crossing. Of such character also was the crossing in the case of Grand Trunk Rd. Co. v. Ives, 144 U. S. 408 [12 S. Ct. Rep. 679], referred to by counsel. We are of the opinion therefore in this case that the court erred in charging the jury that they might determine whether or not the company should have kept a watchman at the crossing or used some appliance to safeguard travelers at this crossing. Such was the holding of this court in Lake Shore and Michigan Southern Ry. Co. v. Gaffney, 6 Circ. Dec. 94 (9 R. 33, 45), a case involvingjthis same crossing and which we are still inclined to follow.

Furthermore the charge was very indefinite and uncertain respecting the subject of appliances. What were the appliances that should have been used to protect travelers ? This question was left entirely to the jury. Each juror was left to determine what appliance should have been used. One would think this, and another that, until the conclusion is reached, that at least some appliance should have been adopted by the company. It is a matter of legislation usually when and what appliances should be used to safeguard travelers at a crossing, and to leave to the determination of jurors what appliances should be used would be very dangerous.

The next objection to the charge of the court is to that part of it where the jury is instructed as to the duty of Corlett to use his senses before attempting to cross over the track — the court said to the jury : “Now as to the question whether or not Edward C. Corlett was guilty of contributory negligence. You are instructed that ordinary prudence requires that a'person in the full possession of his faculties of seeing and hearing when approaching a known railroad crossing use his faculties for the purpose of discovering and avoiding danger from approaching trains, and his failure to do so without reasonable excuse therefor is negligence. It is his duty to use ordinary care under all the circumstances, and if his view was obstructed, that would increase rather than diminish the care which he should use; and as the decedent, Edward C. Corlett, when approaching said railroad crossing, was bound to usé his senses, it was his duty to look and listen. ”

That is to say — it was the duty of Corlett to look and listen without there was a reasonable excuse for his not doing so. The ’ instruction is practically the same as the first paragraph of the syllabus of the case of Cleveland, C. & C. Rd. Co. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633], It was proper in that case because the facts made it applicable, but in this case there was no evidence whatever that there was any excuse for not looking and listening for an approaching train before attempting to cross the tracks. As we have stated, for forty feet at least he had a plain view of the tracks and the approaching train for six or seven hundred feet. At the speed the train was running and he was traveling, had he looked at any time while he traveled that forty feet, he necessarily must have seen the approaching train. There was nothing to divert his attention. No other train approaching; nothing to the west ; no one in his buggy; his horse going quietly along at a slow gait; no other traveler on the road, nothing whatever to excite him, or to cause him not to use his senses for his own protection. Why then say to the jury he should look and listen without there was a reasonable excuse for his not doing so ? The charge simply suggested to the jurors to conjure up an excuse, to ransack their brains for an excuse, to imagine an excuse.

The jury was not instructed to examine the evidence to ascertain if there was an excuse and could not be so instructed for there was no evidence. In this case the jury should have been told directly that it was the duty of Corlett to look and listen for an approaching train before attempting to drive over the tracks, and if the jury should find that by reason of his failure to do so he drove upon the track and was killed, then the plaintiff could not recover.

Abstract propositions of law should not be given to a jury when there is no evidence to make them applicable; the tendency is to mislead. The charge should be applicable to the facts so that the verdict will be responsive to the facts and the law. The facts in Railroad Co. v. Crawford, supra, were entirely different. In that case the train was hidden in a cut for a distance of two hundred feet until it got within a few feet of the crossing. Had the deceased looked he could not have seen the train upon entering the danger line. There were children in the carriage demanding his attention and other circumstances which might justify the jury in finding that there was a reasonable excuse for his not looking and listening.

In this case there was no excuse shown at all and therefore the question of excuse had no application. The court was asked in the seventh instruction requested by defendant’s counsel to say to the jury, “It was the duty of Edward C. Corlett in approaching the tracks there to use his senses of seeing and hearing, and if he failed to do so, and such failure caused or contributed proximately to his injury, plaintiff cannot recover.” This request was refused. It should have been given, or the jury charged to the same effect.

The next question made is that the court erred in its charge respecting the duty of the engineer in ascertaining the perilous position of the deceased and preventing the injury. In the charge the court practically told the jury that if the engineer by the exercise of ordinary care could have seen the deceased and known of his perilous position, and thereafter by the exercise of ordinary car could have stopped the train, or so far checked the speed thereof as to have^-revented the injury, and such failure was the proximate cause of the injury, then they should find for the plaintiff. In other words, if the engineer by the exercise of ordinary care could have or should have known of the perilous position of plaintiff’s intestate, and thereafter by the exercise of ordinary care could have prevented the inj ury, then the company would be liable notwithstanding his own negligence.

Two objections are made to this portion of the charge: First, that there is no evidence whatever upon which to base it; and, second, that as an abstract proposition it is wrong. We are of opinion that both objections are well taken.

Plaintiff below called the engineer as a witness in his own behalf, and he testified that the first he saw of the decedent he was about fifteen feet from the track driving toward the same, giving no attention whatever to the approaching train ; that his train was running at a speed of about fifty miles an hour; that he immediately sounded the danger signal, but before he could apply the air to the brakes, he struck the horse and buggy of the decedent. There was no contradiction of this evidence and therefore there was nothing to justify this portion of the charge of the court.

It is well settled that for the court to instruct the jury that they shall pass upon a fact that is material in the case as this was when there is no evidence at all to support it, is misleading and such error as will require a reversal of the judgment. Independent of this fact can this portion of the charge be held to be good upon any theory? It is true that th;s portion of the charge is supported by the holding in Lake Shore & M. S. Ry. Co. v. Schade, 8 Circ. Dec. 316 (15 R. 424), nevertheless we must hold it to be erroneous. The proposition simply amounts to this, that if a traveler on the highway negligently drives upon the track, and the servants of the railway company by the exercise of ordinary care could or should have known of his perilous position in time to save him by the exercise of ordinary care, then the company is liable. We cannot subscribe to this doctrine.

It is well settled that if the employe did know of the perilous position of the traveler, then he must exercise ordinary care in checking or stopping the train. Both the dictates of humanity and the law would require that. Indeed, he should do more; he should make every possible effort to check or stop the train, and if he did not do so it would be wilful negligence. But to say, if the engineer did not know but might have known, in other words if the engineer did not look and plaintiff's intestate did not look, both guilty of negligence, then plaintiff could recover, would be a paradox in law. It cannot be claimed that the negligence of one is any more the proximate cause than the other; the negligence of each is in not looking, when if he had done so, he might have ascertained the danger. If the train had been derailed and injury followed, would the company have had a right of action against the estate of the deceased as the estate had a right of action against the company ? It is said that the case of Cincinnati, H. & D. Rd. Co. v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674], sustains the contention of plaintiff in error. We do not think so. The facts of that case show that the company through its servants had actual knowledge that Kassen was upon the track as he had fallen from one of the trains of the company about two hours before his death, while the train was in rapid motion, and was killed by being run over by another train, the crew of the first train doing nothing whatever to ascertain the result of his fall or to inform the crew of the other train of the accident.

In the third paragraph of the syllabus of that case, the court says: “ The rule that the negligence of the injured party which proximately contributes to the injury, precludes him from recovering, has no application where the more proximate cause of the injury is the omission of the other party after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.”

It is said, however, that the case of Railway Co. v. Schade, supra, was affirmed by the Supreme Court. So it was, but without report, 57 Ohio St. 650. Upon what grounds we are not informed. It may have been for some reason distinct from the one under consideration. If we were sure that the fourth proposition of the syllabus of that case was approved by the Supreme Court we would be bound by it and would follow it, but we cannot bring ourselves to the conclusion that such is the fact in the light of another case subsequently decided by the Supreme Court with report. In Lake Shore & M. S. Ry. Co. v. Ehlert, 10 Circ. Dec. 443 (19 R. 177), this same question again came before the circuit court of the eighth circuit and the same holding was made, the first, second, third and fourth paragraphs of the syllabus being as follows:

“ 1. It is negligent for a person having approached a railway crossing where the gates have been lowered, to stand, while waiting for a train to pass on one track, in such close proximity to another track, on which trains are known to be operated, as to be within reach of a passing train, or to attempt to walk across the tracks after the gates are lowered.
“ 2. Although a person may have been guilty of negligence in placing himself in a dangerous position, in which he was liable to be injured by passing trains, yet if the employes of the railway company in charge of an approaching train knew of his danger, or might have known by the exercise of ordinary care, in time to protect or save the life of such person, the negligence of the railway is the proximate cause of the injury and a recovery may be had.
“3. In an action for wrongful death, where the evidence clearly shows that deceased, having approached a railway crossing, after the gates were lowered, took a position so near another track as to be within reach of a passing train, and that he remained in that position until he was killed, and the evidence also shows that the employees of the railway company in charge of the train saw him, or could by the exercise of ordinary care have seen him for a distance of 150 feet from where he was killed, the rule stated in the preceding paragraph may be applied > and the question in such case, whether the railway company was negligent in failing to sound the whistle in time to warn deceased of his danger and save his life, was properly submitted to the jury, although deceased was guilty of negligence in getting near or on the track.
“ 4. The rule that a recovery may be had where defendant’s negligence was the proximate cause of the injury, notwithstanding contributory negligence upon the part of plain tiff's decedent, should be given with great caution; in many cases, where the time for action is short, and the principle is so vague and uncertain, it would be misleading, but under the facts stated in the preceding paragraph it was properly given.”

In this last case the court justifies its holding on the authority of Lake Shore & Michigan Southern Railway Co. v. Schade, supra. This last case also went to the Supreme Court, Lake Shore & Michigan Southern Railway Co. v. Ehlert, 63 Ohio St. 320 [58 N. E. Rep. 812]. and the circuit court was reversed, so that we are at least in doubt as to what is the holding of the Supreme Court upon the question, and being in doubt, we cannot subscribe to the rule laid down in Railway Co. v. Schade, Admr., and Lake Shore & Michigan Southern Railway Co. v. Ehlert, supra.

The last question made is; that the verdict was manifestly against the evidence. As we have before stated, the unquestioned facts are that plaintiff’s intestate could have seen the approaching train while he was forty feet from the tracks of the railway company and while the train was at a distance of nearly eight hundred feet, that he could have seen the train all the time while he traveled that forty feet, at the rate of speed the train was going and he was traveling. The train therefore was in full view for a considerable space of time, an abundance of time for him to have stopped his horse. There was nothing to divert his attention in either direction. All the evidence we have shows that he did not look at all and that with the curtains down he drove deliberately upon the tracks of the company.

How can it be said under these circumstances that he exercised due care and that the verdict of the jury is justified by the evidence ? The judgment of the court below must be reversed upon that ground also. For these reasons the judgment of the common pleas court is reversed and the cause remanded for a new trial.