author: ALLREAD, J.

text:
    INSURANCE — PRINCIPAL AND AGENT.
    [Franklin (2nd) Circuit Court,
    February 6, 1912.]
    Dustin, Allread and Ferneding, JJ.

      Bryson-Bedwell-Brubacher Co. v. J. J. Archer et al. (Three Cases.)
    Custom Among Fire Insurance Agencies to Control Information of Expirations not Binding on Strangers to Sale of Agency.
    The purchasers of a fire insurance agency, with a covenant that the vendors will not engage in a competitive business for a period of years, can not bind by a custom as to the control of information with reference to expiration of policies, and thereby restrict the rights of others who were not parties to the contract of purchase and sale.

      Huggins, Huggins & Hoover, for plaintiff in error:
    Cited and commented npon by the following authorities. Steamboat Albatross v. Wayne, 16 Ohio 513; Browne, Usag. & Oust. 12, 24, 54; Thomas v. Trust Co. 81 Ohio St. 432 [91 N. E. Rep. 183;- 26 L. R. A. (N. S.) 1210] ; Columbus & H. Coal Co. v. Tucker, 48 Ohio St. 41, 60 [26 N. E. Rep. 630; 12 L. R. A. 577; 29 Am. St. Rep. 528]; Baine v. Bickett, 13 Dee. Re. 476 (1 C. S. C. 161); White v. Brocaw, 14 Ohio St. 339; Beardsley v. Foot, 14 Ohio St. 414; Morgan v. Spangler, 14 Ohio St. 102; State v. Goshen Tp. (Tr.) 14 Ohio St. 569; Ramsey v. Jones, 41 Ohio St. 685; Bocock v. Pavey, 8 Ohio St. 270; Ensel v. Levy, 46 Ohio St. 255 [19 N. E. Rep. 597] ; Welty v. Vulgamore, 24 O. C. C. 553 (1 N. S. 533).

      J. W. Mooney and R. M. Edmonds, for defendants in error:
    Cited and commented upon by the following authorities: Merchants Ins. Co. v. Prince, 50 Minn. 53 [52 N. W. Rep. 131; 36 Am. St. Rep. 626] ; Dempsey v. Dobson, 184 Pa. St. 588 [39 Atl. Rep. 493; 40 L. R. A. 550; 63 Am. St. Rep. 809] ; Castle-man v. Insurance Co. 77 Ky, (14 Bush.) 197; National Fire Ins. Co. v. Sullard, 97 App. Div. 233 [89 N. Y. Supp. 934] ; Seifried v. May cox, 14 Dec. 536; Robb v. Green, 2 Q. B. Div. 1; 2 Story, Equity Sec. 5 952; Grand Union Tea Co. v. Dodds, 164 Mich. 50 [128 N. W. Rep. 1090; 31 L. R. A. (N. S.) 260n] ; Witkop v. Boyce, 112 N. Y. Supp. 874; Thomas v. Trust Co. 81 Ohio St. 432 [91 N. E. Rep. 183; 26 L. R. A. (N. S.) 1210] ; Inglebright v. Hammond, 19 Ohio 337 [53 Am. Dec. 430] ; Columbus <& H. Coal I. Co. v. Tucker, 48 Ohio St. 41 [26 N. E. Rep. 630; 12 L. R. A. 577; 29 Am. St. Rep. 528] ; Thompson v. Riggs, 72 U. S. (5 Wall.) 6-63 [18 L. Ed. 704]; Tilley v. Chicago, 103 U. S. 155 [26 L. Ed. 374] ; Savings Bank v. Ward, 100 U. S. 195 [25 L. Ed. 621]; Morgan v. Spangler, 14 Ohio St. 102; Kitzmiller v. Van Rensselaer, 10 Ohio St. 63; Weidemann v. Breweries Co. 78 Conn. 660 [63 Atl. Rep. 162] ; Stevens v. Ludlum, 46 Minn. 160 [48 N. W. Rep. 771; 13 L. R. A. 270; 24 Am. St. Rep. 210]; Danforth v. Adams, 29 Conn. 107; Walker v. Vaughn, 33 Conn. 577; Kinney v. Whiton, 44 Conn. 262 [26 Am. Rep. 462] ; 16 Cyc. 720; Woodruff v. Montgomery, 30 O. C. C. 426 (11 N. S. 72); State v. Goshen Tp. (Tr.) 14 Ohio St. 569; Ramsey v. J ones, 41 Ohio St. 685; White 'v. Brocaw, 14 Ohio St. 339; Meyer v. Dresser, 111 Eng. C. L. R. 646; Stoever v. Whitman, 6 Binn. (Pa.) 416.

      Affirmed, no op., Bryson-Bedwell-Brubacher Co. v. Archer, 89 O. S. 413.

   ALLREAD, J.

The plaintiffs in error, who were also plaintiffs below, are a local fire insurance agency, and allege that they purchased of the O’Kane-Beeson Agency of Columbus, Ohio, for a full and valuable consideration, its policy expirations, business, books and good will, with a covenant that the vendors would not engage in competitive business for a period of five years.

The plaintiffs allege that the defendant, Archer, in the first two cases, and Lewis in the third, have been appointed agents by the respective insurance companies, and are, by use of knowledge of existence and expiration of policies obtained from the books of the respective insurance companies, interfering with and attempting to secure renewals of policies in violation of the agreement in the transfer of the business of the O’Kane-Beeson Agency. Neither the insurance companies, nor Archer and Lewis, are parties to any contract with the plaintiff. They are, however, sough t to be bound by a custom by which local agencies in Columbus and elsewhere are permitted to own and control the information as to the expiration of policies and to hold the exclusive right to use such information and solicit renewals. It. is also asserted that the plaintiff in making the purchase relied upon this custom.

The court of common pleas sustained a demurrer to the amended petition stating the above facts and rendered final judgment for the defendants.

The questions presented by the petition in error are interesting and important. Counsel for the respective parties have very fully argued the questions involved and have cited and discussed many authorities.

¥e are clearly of opinion that exclusive of the averments as to custom and usage the amended petition does not state a good cause of action. "We concur fully in the opinion of the trial judge upon the demurrer to the original petition.

The most difficult question presented arises upon consideration of the effect of the added averments as to custom. Contracts as to good will incident to a sale of business, while subject to certain rigid tests, are, if those tests are fully met, sustainable under repeated decisions o'f the Supreme Court. The tests of legality of such contracts is defined by Judge Banney in the opinion in Lange v. Werk, 2 Ohio St. 520. There is no doubt, therefore, of the validity of the transfer of the good will of the local agency.

The question is whether the good will of the local agency can be augmented through custom so as to include a restriction against the principal from the use of books and information in the principal’s custody relating to the business of the principal. It has been repeatedly held that usage and custom can not be employed to take the place of contract nor to create property rights. This principle is laid down by Caldwell, J., in the opinion in Inglebright v. Hammond, 19 Ohio 344 [53 Am. Dec. 430], as follows:

‘‘ Evidence of custom may properly be given to explain and give the proper effect to the contracts and acts of parties; but it would be carrying the doctrine too far to permit a custom to change the title to property contrary to an established rule of law. ’ ’

The same principle is fully established in the cases of Columbus & H. Coal & I. Co. v. Tucker, 48 Ohio St. 41 [26 N. E. Rep. 630; 12 L. R. A. 577; 29 Am. St. Rep. 528], and Thomas v. Trust Co. 81 Ohio St. 432 [91 N. E. Rep. 183; 26 L. R. A. (N. S.) 1210]. In the syllabus in the last case the rule is stated as follows:

“Usage or custom cannot create a contract or liability where none otherwise exists. A usage or custom can only be used to explain or aid in the interpretation of, a contract or liability existing independently of it.”

The plaintiffs, having no contract relation with the insuranee companies, cannot by force of custom and usage assert a right to enforce a restriction upon the insurance companies in. the carrying on of their business and the use of information founded upon boobs and records in their possession.

It is urged that the usage and custom can be applied to-enlarge the agency contract between the insurance companies and the 0’Kane-Beeson Agency, thereby enabling the latter to-transfer the enlarged good will.

It must be kept in mind, however, that the 0’Kane-Beeson. Agency were agents, and that they cannot;, therefore, by usage and custom build up rights inconsistent with the principle of agency. The doctrine of agency and the respective rights of the parties are established by the general principles of the common law and made more effective as applied to insurance companies by statutory provision.

The custom and usage set forth in the amended petition is; in our opinion inconsistent with the common law and statutory principles of agency and unduly restrictive of the rights and franchise of the principals. Merchants Ins. Co. v. Prince, 50 Minn. 53 [52 N. W. Rep. 131; 36 Am. St. Rep. 626] ; Dempsey v. Dobson, 184 Pa. St. 588 [39 Atl. Rep. 493; 40 L. R. A. 550; 63 Am. St. Rep. 809] ; Castleman v. Insurance Co. 77 Ky. (14 Bush.) 197.

The learned counsel for plaintiffs in error do not deny the right of the principals to revoke the authority of the agent, but their contention would have the effect upon revocation of retaining substantial rights as against the principal, which, we think, is equally inconsistent with the common law and statutory principles of agency.

The alleged custom not being valid to restrict the principals in the use of their own boobs in obtaining business and being contrary to established principles of the law, the plaintiffs had no right to rely thereon and can claim nothing by way of estoppel.

The judgments of -the-court of common pleas will, therefore, be affirmed.

Dustin and Ferneding, JJ., concur.


source: Caselaw Access Project

author: GRANT, J.

license: Public Domain

text:
    INSURANCE.
    [Cuyahoga (8th) Court of Appeals,
    June 14, 1913.]
    Winch, Meals and Grant, JJ.
    Sovereign Camp of W. O. W. v. Bridget Gallagher.
    False Designation of Dependent as Beneficiary Voids Fraternal Policy and Blood Relatives Cannot Recover Thereon.
    Since the provisions of the constitution of a fraternal beneficiary organization are by force of Sec. 9469 G. C. imported into and become an integral part of contracts of insurance issued in accordance therewith, one of which mates of no effect a certificate of insurance based upon an application containing a false statement, the naming by the insured as his beneficiary of one falsely designated as a dependent renders the policy wholly void and of no effect ab initio; hence, an action by the mother of the insured, brought after his death on a policy so issued, can not be maintained, and all sums paid by the insured in procuring and maintaining such insurance are forfeited and lapse into the fund provided for such contingencies by the laws of the order.
    [Syllabus approved by the court.]
    Error to common pleas court.

      White, Johnson d? Cannon, for plaintiff in error.

      E. P. Strong and Carl P. Schuler, for defendant in error.
   GRANT, J.

The prayer of the petition in error in this cause is for a reversal of the judgment of the court of common pleas of this county in favor of the defendant in error, plaintiff below.

Although as to position the parties here are in the reverse order of that held by them in the trial court, we shall hereafter, for the sake of clearness, designate them as they were there in this respect.

For substance, the allegations of-error in the petition are included in the first, namely, that no evidence should have gone to the jury at all, and that upon the pleadings and admitted facts there should have been no recovery by the plaintiff.

Those facts, so far as they are material here, are as follows:

The defendant is a fraternal beneficiary organization, incorporated under the laws of Nebraska. It has no capital stock, and its activities are exerted wholly for the mutual benefit of its members and their families. It is a corporation not for profit, and it has a lodge system; it proceeds under certain ritualistic forms and its mode of government is representative. It has a fund out of which benefits may be paid to the beneficiaries of such of its deceased members as have complied with the conditions imposed by its constitution, rules, regulations .and laws.

In evidence of the right to participate in the benefits memtioned, the organization issues certificates entitling those beneficiaries who come within their provisions to recover their proper amounts. The application for the benefit insurance in each case, and also the constitution and laws of the order, become and are a part of the contract evidenced by the certificate.

The following parts of the constitution and laws referred to are essential to an understanding of this case:

“Section 3. The objects of the order shall be to combine white male persons of sound bodily health, exemplary habits and good moral character, between the ages of eighteen and fifty-two years, into a secret, fraternal, beneficiary and benevolent order; provide funds for their relief; comfort the sick and cheer the unfortunate by attentive ministrations in time of sorrow and distress; promote fraternal love and unity, create a fund from which, on reasonable and satisfactory proof of death of a beneficiary member, who has complied with all the requirements of the order, there shall be paid a sum not to exceed three thousand dollars ($3,000) to the person or persons named in his certificate as beneficiary or beneficiaries, which beneficiary or beneficiaries shall be his wife, children, adopted children, parents, brothers, sisters or other blood relations, or to persons dependent upon the member.
“The name or names of the beneficiary or beneficiaries shall be written in every beneficiary certificate issued. In case such benefits are payable to one of the relations named herein, who shall, at the time of the death of a member, be also deceased and new designation has been made as hereinafter provided during life, the benefits shall be due and payable to the mem- . ber’s next living relation in tbe order named in this, section; if there be no such relative surviving, then said benefits shall be forfeited to and remain in the beneficiary fund.”

Section 60 of the constitution provides:

“Section 60. The following conditions shall be made a part of every beneficiary certificate and shall be binding on both member and order:
“First. This certificate is issued in consideration of the representations, warranties and agreements made by the person named herein in his application to become a member, and in consideration of the payment made when introduced in prescribed form. * * *
“Fourth. * * * If any of the statements or declarations in the application for membership and upon the faith of ' which this certificate was issued, shall be found in any respect untrue, this certificate shall be null and void and of no effect, and all moneys which shall have been paid and all rights and benefits which have accrued on account of this certificate shall be absolutely forfeited without notice or service.”

Section 66 of the constitution provides among other things:

“If the statements or declarations in his application for membership shall be in any respect untrue, his certificate shall be null and void and of no effect, and all money which shall have been paid, and all rights and benefits which may have accrued on account of his certificate shall be absolutely forfeited without notice or service.”

Section 69 provides:

“No officer, employee, or agent of the sovereign camp, or of any camp, has the power, right or authority to waive any oí the conditions upon which beneficiary certificates are issued, or to change, vary or waive any of the provisions of this constitution or these laws. Each and every beneficiary certificate is issued only upon the conditions stated in and subject to the . constitution and laws, then in force or thereafter enacted.”

, The certificate sued upon in this action was issued to Patrick F. McGinty. The named beneficiary in it was- James F. Gaul. The relationship of the latter to the insurance sought to be affected is stated in MeGinty’s application, as follows:

“I hereby direct that the amount of the beneficiary fund, to which my beneficiaries may be entitled at my death, shall be paid to James F. Gaul, related to me as'Dependent. If said beneficiary should not survive me, same shall be paid to my nearest surviving relative in the order named in the constitution and laws of the order.”

The application also contained the following language:

“I hereby consent and agree that this application, consisting of two pages, to each of which I have attached my signature, the examining physician’s report and all the provisions of the constitution and laws of the order, now in force or that may hereafter be adopted, shall constitute the basis for and form a part of any beneficiary certificate that may be issued to me by the Sovereign Camp of the Woodmen of the World, whether printed or referred to therein or not.
“I hereby waive the attaching of copies thereof to said certificate; and I further waive the provisions of all statutory laws and court decisions in relation thereto. # * * I hereby certify, agree ana warrant that all the statements, representations and answers made by me in this application, consisting of two pages as aforesaid, are full, complete and true, whether written by my own hand or not; and I agree that any untrue statements or answers made by me in this application * * * intentional or otherwise * * # or if I fail to comply with the laws, rules and usages of the order, now in force or hereafter adopted, my beneficiary certificate shall become void and all rights of any person or persons thereunder, shall be forfeited.”

This application is signed by McGinty at the foot of each page.

The certificate issued on this application states:

‘ ‘ This certificate is issued and accepted subject to all of the conditions on the back hereof and subject to all of the laws, rules and regulations of this fraternity now in force or that may hereafter be enacted, and shall be null and void if said sovereign does not comply with all of the laws, rules and regulations of the Sovereign Camp of the Woodmen of the World, that are now in force or which may hereafter be enacted, and with the by-laws of the camp of which he is a member.”

To this certificate is attached this statement:

“I read the, above certificate No. 21056 of the Sovereign Camp of the Woodmen of the World, and the conditions therein, and hereby agree to and accept the same as a member of Camp No. 42, state of Ohio, this 22d day of October, 1906, and warrant that I am in good health at this time and that all the requirements of Section 58 of the constitution and laws of the order have been complied with.”

This is signed by Mr. McGinty, and witnessed by the Clerk of the Camp. On the back of this certificate is the following:

“Conditions Referred to and Made a Part of this Certificate.
“1st. This certificate is issued in consideration of the representations, agreements and warranties made by the person named herein, in his application to become a member; * * *
“The foregoing provisions are hereby made a part of the consideration for and are conditions preeedent'to the payment of benefits under this certificate. * * *
‘ ‘ If any of the statements or declarations in the application for membership and upon the faith of which this certificate was issued, shall be found in any respect untrue, this certificate shall be null and void and of no effect, and all moneys which shall have been paidj and all rights and benefits which have accrued on account of this certificate shall be absolutely forfeited without notice or service.”

Gaul, the person named in the application and also in the certificate issued upon it, was not a dependent and the statement to that effect was false. The plaintiff, Bridget Gallagher, is, literally, a stranger-in-law to the contract she sues on — her name appearing nowhere in it, either as a party to it or as a designated person to share in its benefits.

'The claim of the plaintiff is that notwithstanding this, she being the mother of McGinty may recover upon the certificate, McGinty being now dead.

On the contrary, the defendant contends that the false statement avoids the obligations of the certificate, defeats all right of recovery upon it, and causes the amount that would otherwise be coming to a proper beneficiary, and all sums paid in procuring and maintaining the insurance, to be forfeited and to lapse into the fund provided for such contingencies by the laws of the order.

The foregoing facts and the statement of the issue between •the parties are not disputed.

Over the objection of the defendant, testimony was permit? ted to be introduced and the case was submitted to the jury by the trial court. A verdict for the plaintiff was had for the full •amount of the benefit named in the certificate, with interest, and a motion for a new trial being overruled, judgment was entered accordingly.

The same issue that was before the court below is before us. If the contention of the defendant was right, there was no ease to go to the jury and it should not have been submitted to the jury at all.

With some reluctance, but in the fulfillment of our duty, we have concluded that the law of Ohio has1 been sufficiently declared to settle this question and that it does settle it, and that we may not in this case depart from the somewhat narrow and rigid path marked out for us.

This conclusion renders it unnecessary for'us to examine the formidable array of authorities so industriously marshalled from other states in the briefs, and so ably discussed at the bar.

Section 9467 G. C. provides:

“The payment of death benefits shall be confined to the family, heirs, relatives by . blood, marriage or legal adoption, affianced husband or affianced wife, or to a person or persons dependent on the member.”

Section 9469 G. C: says:

““Every certificate issued by the association * * * shall provide that the certificate, the charter or articles of assoeiaction, the constitution and laws of the association, and the application for membership, medical examination signed by' the: applicant, shall constitute the contract between the association and the member.” 1

We are not, therefore, left in any doubt as to the fact that' the application and those portions of the constitution which we have quoted, are by forcé of positive law imported into, and have become integral parts of the contract of insurance evidenced by the certificate sued on, to be construed and applied and given binding force, whenever they are applicable, as in. other contracts, unless their application is limited or modified by some other and controlling countervailing enactment. Germania Fire Ins. Co. v. Schild, 69 Ohio St. 136, 139 [68 N. E. Rep. 706; 100 Am. St. Rep. 663] ; West v. Insurance Co. 27 Ohio St. 1 [22 Am. Rep. 294] ; Travelers’ Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760].

It is to be remembered that this is not a case in which the order admits its obligation to pay the benefit to some one, and is a mere stakeholder or interpleader. Nor again, is it a case: where the certificate contains no self-executing provision, for-forfeiture, following upon a false statement, nor where the: statement amounts to no more than a direction or representation, not declared by the contract itself to be a warranty. Nor yet is it a ease where a valid designation, and therefor a valid contract, was made in the first place with a change later to an invalid designation. And it is not a case where the constitution and laws of the order do not become a part of the contract, either by force of the contract itself, or by the compulsion of a statute.

It is a case of ordinary contractual origin and relations in which the language of the contract is plain, clear and unambiguous, and not open to enlargement or diminution by construction, unless it is to be aided by some coercive consideration: to which we have not so far in this discussion referred. That' language, at the crucial point of contact, is this:

“I hereby certify, agree and warrant that all the statements, representations and answers made by me in this application, * * * are full, complete and true * * * and I agree that if any untrue statements or answers are made by me in this application, * * * my beneficiary certificate shall become void and all rights of any person or persons thereunder, shall be forfeited.”

By Sees. 60 and 66 of the constitution of the order — they being by agreement and by statute a part of the contract sued on here — a forfeiture in case of an untrue answer, is denounced in terms equally explicit.

By See. 3, also above quoted, in case of a failed designation, with no substituted allowable designation — and it would follow, we are bound to suppose, also upon an impossible designation — the declaration of a forfeiture is just as emphatic, with an added provision for the lapsing of benefits so forfeited into the general beneficiary fund of the order.

Prior to the enactment in Ohio of a statute presently to be mentioned, the law of the state in regard to how this question of the construction of statements in applications for insurance, in cases where the parties have by their contract agreed that they are to be deemed warranties, was, we think tolerably well settled. Its conclusion was that it would leave the parties where they had left themselves.

Without canvassing the decisions of our Supreme Court in this respect along the lines of development, it will be enough for present purposes to call attention to the"case of Connecticut Mut. L. Ins. Co. v. Pyle, 44 Ohio St. 19 [4 N. E. Rep. 465; 58 Am. Rep. 781]. In that case the question to be determined arose upon a paragraph in the application for a policy of life insurance, which was in these words:

“It is hereby declared and warranted that the above are fair and true answers to the foregoing questions; and it is acknowledged and agreed by the undersigned that this application shall form a part of the contract of insurance, and that if there be, in any of the answers herein made, any untrue or evasive statements, or any misrepresentations, or concealments of facts, then any policy granted upon this application shall be null and void; and all payments made thereon shall be forfeited to the company.”

The court when it came to deal with the case put the issue in this clear language: “Did the policy ever attach, or was it. ever valid?”

It was admitted in the opinion that the avoidance of the policy was sought on the ground of “untrue statements, innocently made” by the applicant.

The question thus propounded by itself to itself, the court answered as follows:

“In this case the (trial) court did not err in holding that the policy ‘is wholly void and of no effect whatever, and was so from the moment it was issued.’ ”

In its opinion in the case the court quotes with approval the following language from Jeffries v. Insurance Co. 89 U. S. (22 Wall.) 47 [22 L. Ed. 833].

“Any answer untrue in fact, and known by, the applicant for insurance to be so, avoids the policy, irrespective of the question of the materiality of the answer given to the risk.
* * &
“Nothing can be more simple. If he makes any statement in the application, it must be true. If he makes any declaration in the application, it must be true. A faithful performance of this agreement is made an express condition to the existence of a liability on the part of the company.”

And the following also, from Aetna Life Ins. Co. v. France, 91 U. S. 510 [23 L. Ed. 401] :

“The company was not liable if the statements made by the insured were not true. The agreement of the parties that the statements were absolutely true, and that their falsity in any respect should avoid the policy, removes the question of their materiality from the consideration of the court or jury.”

And this, from Co-Operative Life Assn. v. Leflore, 53 Miss. 1:

“A contract of insurance, like other contract, is avoided by an untrue statement by either party as to a matter vital to the agreement, though there be no intentional -fraud in the misrepresentation. ’ ’

And again, the following from Foot v. Insurance Co. 61 N. Y. 571:

“If a policy of insurance declare that the statements made in the application shall be part and parcel of the policy, such statements become warranties and must be true, whether material or not.”

And this also, from Clark v. Insurance Co. 2 Wood & M. 472:

“A warranty is generally a stipulation made and described in the policy itself, and must be complied with, whether material or not. * * * Where a material fact is suppressed in such representations, the insurance is avoided, and the policy does not attach, whether the suppression happens by neglect or fraud.”

■ And at last the court, after its approval of these and other authorities of like import, sums up and fixes the law of the case, in the syllabus, thus:

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

In the case at bar we conceive the untrue statement to be material. It consisted in the applicant undertaking to create by it the relation of dependent, a relation which if established would confer the right of recovery under the certificate on the named beneficiary, but if false no such right would accrue. The. truth or falsity of the statement, therefore, went to the heart of the transaction. The life of the benefit depended wholly upon its truth. But for it, and the assumption that it was true and not false, the certificate would not have been issued, and if it was false, the transaction, by the agreed terms of the contract, had no vitality.

If then the materiality of the statement is necessary to bring this case within the letter' of the syllabus in Connecticut Mut. L. Ins. Co. v. Pyle, supra, in our estimation the necessity is met, and there is no need of falling back to the cases cited, and apparently approved in that case, where these say that under a contract like the one we have in hand, the materiality of the untrue statement i's of no moment.

Such we conceive to be the law of Ohio in a case unaided and unaffected by any modifying statute. The application of the rule in its full rigor, however, in many insurance cases necessarily resulted in hardships in some instances — hardships often, no doubt, unmerited. The law is no respecter of persons —not even of worthy and unfortunate persons, and in its dealings with them is sometimes pitiless.

Accordingly, and without doubt feeling the force of this consideration in its bearing on the helpless, the widow and the stricken, the legislature passed an act which is now embodied in Sec. 9391, G. C., and which reads thus:

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

Passed, as it must have been, to relieve against the hardness in many cases of the principle announced in Pyle v. Insurance Co. supra, it is not to be doubted that if this statute can be applied in the case at bar, it will perhaps operate so as to give the plaintiff a considerable chance of success before a jury, for in that contingency the case would, we suppose, properly go before a jury for a verdict.

Can it be so applied? We think not.

For reasons which, doubtless, seemed to itself to be sufficient, and on grounds of salutary public policy, no doubt, the legislature has s'een fit to enact another statute, which is as follows :

“Section 9465. Except as herein provided, such association (including, clearly, the defendant) shall be governed by this chapter and be' exempt from all provisions of the insurance laws, not only in governmental relations with the state, but for every other purpose. No law hereafter passed shall apply to them, unless they are expressly designated therein.”

In no such subsequently enacted law is the defendant order expressly or by implication designated, it is believed, and the claimant here is left exposed to all the harshness of the rule in Connecticut Mut. L. Ins. Co. v. Pyle, supra, pushed to its necessary conclusion in this case.

We can not, as none of the cases from other states than Ohio, cited in the argument, do, regard the untrue answer given as a mere direction, or otherwise than as of the substance of the transaction, even if the parties had not by the express terms of their contract made it substantial, beyond the power of the courts, as we think, to make it otherwise.

Under the law of Ohio, as we are constrained to find it, we must hold that by reason of the untrue answer as to the relation of dependence of the assured to the beneficiary the certificate sued on never attached but was void from the beginning.

It follows that the issue in the case should not have been submitted to the jury at all, and that the court below erred in so submitting it and in the various steps consequent upon such •erroneous submission.

The judgment of the court of common pleas is therefore reversed., and judgment against the defendant in error for the •costs in this behalf made is allowed — that being the judgment which the court below should have rendered.

Winch and Meals, JJ., concur.


author: METCALFE, J.

text:
    ACTIONS — DAMAGES—NEGLIGENCE.
    [Belmont (7th) Court of Appeals,
    December 11, 1914.]
    Metcalfe, Pollock and Spence, JJ.
    Andrew H. Sloan, Admr. v. Lorain Coal & Dock Co.
    Bight to Recover for Negligence Survives Death but Recovery is Limited to Loss of Wages, Pain and Suffering.
    A cause of action in favor of a person injured by another’s negligence survives the death of the injured person by virtue of Sec. 11235 G. C. and may be maintained by the administrator for the benefit of the estate. The recovery in such case is limited to such loss of wages, pain and suffering, and the like, as the decedent himself could have recovered at the time of his death.
    [Syllabus by the court.]
    Error.

      J. M. Bees, for plaintiff in error.
    P. P. Lewis, for defendant in error.
   METCALFE, J.

This action is brought by the administrator of Everett Sloan deceased to recover damages for injuries to said Everett Sloan by reason of the alleged negligence of the defendant. The action is brought on behalf of the estate, and it is averred in the petition that said Everett Sloan did not leave surviving him any of the persons on whose behalf a recovery could be had under the wrongful death statute. A demurrer was sustained to the petition in the court of common pleas. The question here is, does such a cause of action survive the death of the injured person purely for the benefit of the estate by virtue of Sec. 11235 G. C.

In the case of Ohio & Penn. Coal Co. v. Smith, 53 Ohio St. 313 [41 N. E. Rep. 254], and Mahoning Val. Ry. v. Van Alstine, 77 Ohio St. 395 [83 N. E. Rep. 601; 14 L. R. A. (N. S.) 893], it is held that pending actions for such injuries survive the death of the plaintiff by virtue of Sec. 11397 G. C., but it is insisted that where the ‘action had not been begun the cause of action would not survive.

Section 11235 G. C. provides:

“In addition to the causes which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and the action may be brought notwithstanding the death of the person entitled or liable thereto.”

This section seems to us susceptible of but one construction. For injuries to the person the cause of action shall survive notwithstanding the death of the person entitled or liable thereto. The statute speaks of “causes of action” which survive, not of pending actions, and we think the reasoning in Mahoning Val. Ry. v. Van Alstine, supra, supports the contention in this case.

The judgment of the court of common pleas in sustaining the demurrer to the petition is reversed.

Pollock and Spence, JJ., concur.


author: PER CURIAM.

text:
    APPEAL — DIVORCE AND ALIMONY.
    [Lucas (6th) Court of Appeals,
    February 17, 1915.]
    Chittenden, Richards and Kinkade, JJ.
    Martha Page v. Stanley G. Page.
    Decree for Alimony not Appealable under Amended Constitution. A decree for alimony, under Art. 4, Sec. 6, of the constitution as amended, is not appealable.
    Motion to dismiss appeal.

      Beard <& Beard, for plaintiff.

      C. W. Meek, for defendant.
   PER CURIAM.

A motion lias been made by tbe defendant to dismiss the appeal in this case. The case is one pending in this court solely for the purpose of procuring an allowance of alimony. 'Under the new constitution, Art. 4, Sec. 6, the case is not appealable and the motion to dismiss the appeal will be granted. See Deeds v. Snyder, 59 Bull. 481; 91 Ohio St. 000; Dewitt v. Dewitt, 67 Ohio St. 340 [66 N. E. Rep. 136] ; Price v. Price, 10 Ohio St. 316; Reed v. Reed, 17 Ohio St. 564.

A similar conclusion has been reached by the court of appeals in Franklin county in the unreported case of Dodd v. Dodd, decided February 2, 1915, and in eases in the court of-appeals in Cuyahoga county and in other appellate districts of the state.

Appeal dismissed.


author: CROW, J.

text:
    BASTARDS.
    [Crawford (3rd) Court of Appeals,
    March 19, 1915.]
    Crow, Kinder and Ansberry, JJ.
    State ex rel. Jennie Rarick v. William Bauman and Chris Bauman.
    Bastardy Bond Inures to County, Township, or Municipal Corporation,, not Mother of Child.
    A bond given in bastardy proceedings, pursuant to Sec. 12114 G. C., creates no right in favor of the mother of the bastard child, but inures solely to the benefit of the several counties, townships and municipal corporations within the state, to the end that they shall be saved harmless from all charges for the-maintenance of such child. (Hazard v. State, 6 Dec. Re. 1081,. distinguished.)
    [Syllabus approved by the court.]
    Error to common pleas court.

      Edward J. Myers and L. G. Feighner, for plaintiff in error.,

      Finley & Gallinger, for defendants in error.
   CROW, J.

The relator, Jennie Rarick, commenced an action in the-court of common pleas of Crawford county, Ohio, by filing a. petition against William Bauman and Chris Bauman, containing the following material averments:

That on and prior to June 9, 1908, she was an unmarried-woman, and on said date filed a written complaint before a justice of the peace in and for one of the townships within said, county, against the defendant William Bauman, wherein she. charged him with being the father of a bastard child of which, she had theretofore been delivered; that such proceedings were duly had by and before the said justice of the peace, that on June 10, 1908, said defendant William Bauman was arrested upon a warrant issued under said complaint, and that he was brought before said justice of the peace; whereupon said cause was regularly and duly compromised by and between said relator and said defendant William Bauman, before said justice of the peace who duly approved said compromise and entered the same upon his docket in said cause; that in said proceeding, and pursuant to the statute in such case made and provided, defendant William Bauman, together with defendant Chris Bauman and Mrs. Chris Bauman, as sureties, entered into a bond dated June 10, 1908, in the penal sum of $50® payable unto the state of Ohio, which said bond was duly approved by said justice of the peace, whereupon defendant William Bauman was released; that the condition of said bond is as follows:
“The condition of the above obligation is such, that whereas, the above bound William Bauman has been arrested upon a warrant issued by Edward J. Myers, a justice of the peace in and for said county, on the complaint of Jennie Rarick. an unmarried woman, for being the father of a bastard child, of which the said Jennie Rarick has been delivered; and the said William Bauman hath compromised with and satisfied the said Jennie Rarick in the premises, in pursuance of the law. Now, if the said William Bauman shall save every county, township, and municipal corporation within the state free from all charges toward the maintenance of said bastard child, then this obligation to be void; otherwise to remain in full force.”

A true copy of such bond is attached to the petition and made a part thereof, the same being in the words and figures:

“Know all men by these presents, that we, William Bauman, Christ Bauman and Mrs. Christ Bauman are held and bound unto the State of Ohio, in the sum of five hundred dollars, for the payment of which we jointly and severally bind ourselves.
“Dated this 10th day of June, 1908.
“The condition of the foregoing obligation is such, that, whereas, the above bound William Bauman has been arrested upon a warrant issued by Edward J. Myers, a justice of the peace in and for said county, on the complaint of Jennie Rarick, an unmarried woman, for being the father of a bastard child, of which the said Jennie Rarick has been delivered; and the said William Bauman hath compromised with and satisfied the said Jennie Rarick in the premises, in pursuance of the law.
“Now, if the said William Bauman shall save every county, township, and municipal corporation within the state free from all charges toward the maintenance of said bastard child, then this obligation to be void; otherwise to remain in full force. Wm. Bauman, Christ Bauman, Mrs. Christ Bauman.
“This bond approved by me this 10th day of June, 1908. Edward J. Myers, J. P.”

That since the execution of said bond said Mrs. Christ Bauman has died leaving no estate; that ever since the execution of said bond defendant William Bauman has wholly refused, failed and neglected to furnish or contribute to the support, maintenance, care and keeping of said bastard child to whom during the whole of the time subsequent to the execution of said bond, the plaintiff has furnished and supplied necessary food, clothing, shelter and maintenance, the value of which amounts to the sum of $500 and more; that the neglect and refusal of defendant William Bauman as aforesaid has violated and broken the terms and conditions of said bond which has become absolute; that defendant Christ Bauman, surety as aforesaid, has by reason of said neglect and failure on the part of defendant William Bauman, become and is now liable to the relator on said bond for the damages which relator has sustained by reason of said neglect and refusal of defendant William Bauman to furnish or provide maintenance for said bastard child who is now living.

Defendant William Bauman was not served with summons or by publication, nor did he appear in the action.

Defendant Christ Bauman demurred to the petition on the grounds:

First, that plaintiff has not capacity to maintain the action; second, that the petition does not state facts sufficient to constitute a cause of action.

The court of common pleas sustained the demurrer, dismissed the petition, and rendered judgment against relator.

By this proceeding in error relator seeks reversal of that judgment.

What are the rights of the complainant in a ease in which she has agreed to receive an amount of money or property “in full satisfaction,” during the pendency of the case before the justice of the peace, and such agreement shall have been made or acknowledged by both the complainant and the accused in the presence of the justice of the peace who shall have entered a memorandum thereof upon his docket?

Answer must, of course, be found solely in the statutory provisions governing the subject of bastardy. These clearly disclose that all rights of complainant in such proceeding, and the entirety of obligation and consequent liability of the signers of the bond requisite to be given when there has been a compromise effected between her and the accused, and payment or securing of payment of the amount of money or transfer of the property which complainant agrees to receive from the accused in full satisfaction, has been made, were defined and controlled at the time of execution of the bond in issue herein, by Sec. 5617 R. S., which is now, with slight changes in phraseology, Sec. 12114 G. C.

The only liability on the bond thus provided for, rests upon the one condition of saving any county, township or municipal corporation within the state free from all charges for the maintenance of such bastard child, and whenever a bond has been thus given, it must be construed in the light of the attributes defined and limited by said section, whatever may be the form of the bond.

The other statutory proceedings- in bastardy have to do with obligation and liability by way of recognizance for appearance of accused, and hence are unimportant in the disposal -of the question in the present case.

’ Indeed, our legislation on the subject of bastardy is founded upon the public concern, although in the proceedings so provided, certain rights are created for the benefit of, and vouchsafed to, the complainant.

The proceeding is neither a civil action nor á criminal proceeding, but in some features appears to possess certain attributes belonging to both classes of cases.

One of the privileges of the mother of a bastard child, preserved to her by a proceeding in bastardy initiated by her, is to compromise and to receive under such compromise such sum of money or such property as she may agree to accept, or to permit the cause to proceed to trial in the court of common pleas, and receive such recovery as may result to her therefrom.

In the latter event, no bond for the saving of any county, township or municipal corporation free from all charges for the maintenance of the child is provided for, but another undertaking is contemplated, namely the one mentioned in Sec. 12123 G. C.

It is urged by counsel for the relator that the case of Hazzard v. State, 6 Dec. Re. 1081 (10 Am. L. Rec. 308), affirmed, no op., Hazzard v. State, 11 Bull. 252, is authority for the maintenance of an action by the complainant, upon such a bond as the one in issue herein.

The diligence of counsel for demurrant, who has furnished us a copy of the printed record in that case, enables us to say with certainty that the controversy there determined is wholly dissimilar from the question before us.

The following is a copy of the relator’s pleading in the Hazard case.

“The plaintiff states, that on August, 23, A. D,. 1878, in a certain proceeding in bastardy, then pending before E. Gilligan, Esq., a justice of the peace within and for said county of Hamilton, wherein the said Anna Dickson was plaintiff and the said Charles Hazzard was defendant, an order was entered of record by said justice of the peace, that the said Charles Hazzard enter into a recognizance in the sum of $500 for the appearance at the term of this court then nest ensuing for said county of Hamilton, to answer to the complaint of said Anna Dickson, in said proceeding, and to abide the order of the court therein; that afterwards, to wit, on August 29, A. D. 1878, in pursuance of and in compliance with the said order, so as aforesaid entered of record by the justice of the peace, the said defendants appeared before said justice of the peace, and jointly and severally acknowledged themselves to owe and be indebted to the state of Ohio, for the use and benefit of the township of Cincinnati, in the county aforesaid, in the sum of $500; but said acknowledgment and recognizance was on the condition, that if the said Charles Hazzard should be and appear before this court on the first day of the term thereof next to be holden within and for said county of Hamilton, continue from day to day, and then and there answer to said complaint of said Anna Dickson against him in said proceeding, and abide the order of this court thereof, then th’e said recognizance should be void, otherwise to be and remain in full force. Said recognizance was duly entered of record by said justice of the peace, and signed and sealed by said defendants, the said Charles Hazzard signing the same by the name of Charles E. Hazzard.

Afterwards, to wit, on September 11, A. D. 1878, a duly certified transcript of the record made by said justice of the peace of said proceeding, including said recognizance, was filed in the office of the clerk of the court, and at the November term, A. D. 1878, of this court, said cause and proceeding was, by order of the court, continued.

Afterwards, at the January Term, A. D. 1879, of this court, the said Charles Hazzard being duly called, came not, but made default, and the said Edward Hazzard, being duly called to produce in court the body of said Charles Hazzard, came not, but made default, whereupon said recognizance was duly forfeited.

And a jury being duly impaneled and sworn, to try the matter put in question in said proceeding, found said Charles Hazzard guilty, whereupon he was duly adjudged the reputed father of the child mentioned in said proceeding, and charged with the maintenance thereof in the sum of $800, and to pay the costs of said proceeding, which he has refused and still refuses to do.

Therefore the plaintiff demands'judgment against said defendants, in the sum of $500.”

It is readily manifest that there had been no compromise of the ease, but on the contrary the accused had been ordered to enter into a recognizance for his appearance at the court of «common pleas.

One of the conditions of the recognizance is averred to have been to answer the accusation and abide the order of the court as required by See. 5618 R. S., now See. 12115 G-. C. And, as pleaded, one of the orders of the court was that the .accused stand “charged with the maintenance” of the child in the sum of $300.”

We therefore hold that the mother of a bastard child has no right to recover on the bond provided for by Sec. 5617 R. S., now Sec. 12114 G. C.

It follows that there was no error in sustaining the demurrer, and that the' judgment must be affirmed.

With the foregoing conclusion, the dictum of Day, J., in State v. Van Vorhis, 4 Circ. Dec. 30 (9 R. 239), will be found .to harmonize.

Kinder and Ansberry, JJ., concur.


text:
    INSURANCE — MASTER AND SERVANT.
    [Cuyahoga (8th) Court of Appeals,
    May 24, 1914.]
    Winch, Meals and Grant, JJ.
    Joseph Bomgardner v. William Zilch, by His Next Friend.
    1. Application for Compensation to State Liability Board Precludes Employe from Maintaining Action Against Employer.
    Where an injured employee of an employer who has paid into the state insurance fund makes application to the state liability board of awards “for payment to him of money out of the state insurance fund,” and this is done on a blank sent to him for that purpose by the state board, styled “First Notice of Injury and Preliminary Application,” he will be held in so doing to have chosen his forum, and he can not thereafter maintain an action against his employer for compensation on ac- , .count of the same injury.

      2. State Liability Board May Determine Rights of Applicant Notwithstanding Failure to Pursue Claim.
    Failure to further prosecute the claim before the state board' after having thus elected to pursue that remedy is not a harto an allowance to him by the state board, inasmuch as that board is not bound by technical rules but has full authority to make an investigation in such manner as is in their judgment best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the act.
    [Syllabus by the court.]
    Error.

      F. M. Secrest, for plaintiff in error.

      A. L. McGannon and A. E. Powell, for defendant in error..
   GRANT, J.

This is a petition in error which asks for the reversal of a judgment of the court of common pleas.

The parties here stand in the reverse order of their position in the court below, but they will in this opinion be designated as they were there.

The plaintiff, a minor, was in the employ of the defendant,, and while so at work was injured by the operation of a circular saw.

The defendant had theretofore paid the premium required, by the State Liability Board of Awards into the state insurance" fund, and was then entitled to the protection designed by the-statute to be given to-employers under such circumstances, an'di the plaintiff in like manner had a right to share in the correlative benefits in that behalf.

Section 1465-61 G. C. provides that where a personal injury is suffered by an employee, and such employer has paid! into the state insurance fund, and in case such injury has arisen: from the failure of such employer, or any of such employer’s: officers or agents, to comply with any municipal ordinance or lawful order of any duly authorized officer, or any statute for the protection of the life or safety of employees, “then in such, event, nothing in this act contained shall affect the civil liability of such employer, but such injured employee may at his: option, either claim compensation under this act or institute:, proceedings in court for his damages on account of such injury.”

The second paragraph of the above section reads:

“Every employee, who makes application for an award from the State Liability Board of Awards, waives his right to exercise his option to institute proceedings in any court.”

The claim of the plaintiff was that he came to his injuries because the saw in question was left without a guard, contrary to statute. His case therefore was brought within the purview of the insurance fund law, just quoted.

He accordingly undertook to exercise the option thus given to him by making out, signing and sending to the State Liability Board of Awards, on the day of his injury, a paper, the caption which was as follows: “In the Matter of the claim of William Zilch for payment to Him of Money Out of the State Insurance Fund.” Opposite to this caption, on the same page of the paper, are the. following words and figures: “No. 5940. First Notice of Injury and Preliminary Application.”

Immediately below these, on the paper in question, are the following words:

“I hereby make application to the Industrial Commission of Ohio for the payment of money out of the state insurance fund on account of the injury to me hereinafter described, and ■hereby request that all forms and blanks necessary for the proper proof of my claim be furnished to me, free of charge. ’ ’

The data of the injury then appeared further down the paper, covering, it is believed, everything requisite to his participation in the benefits afforded by the statute, except the rate of wages he had been getting, but in any event stating enough to require the state board to investigate his case, under the law.

The blanks thus requested were duly furnished to the plaintiff, bub he failed to prosecute his claim to further effect, and the state board, having waited for the time limited by its rules for additional proceedings, found that he had waived his right to compensation and adjudged accordingly.

The plaintiff thereafter commenced this action.

The foregoing facts were alleged in the defendant’s answer.

When the case was pnt upon its trial to a jury the substance of the matters thus stated was admitted by counsel for the plaintiff. Whereupon the defendant, claiming that the plaintiff had thereby elected to proceed for compensation under the statute already quoted, and was for that reason barred of his action in court, asked that the'cause be withdrawn from the jury, and demanded judgment accordingly. The request was refused.

When the plaintiff had taken all his testimony, the same motion was made. It was again denied, as it also was when, at the end of the evidence on both sides, it was made for the third time.

There was a verdict, upon which judgment was entered for the plaintiff, after a motion for a new trial had been overruled.

The question with which we are concerned is this: Did the plaintiff make an “application for an award from the state liability board?” If he did, then by the express words of the statute he is barred of his action in court.

To avoid an affirmative answer to this inquiry the plaintiff relies on the rules of the board.

The statute which creates the board and defines their procedure, permits them to make rules. This power is conferred by Sec. 1465-44 G. C., as follows:

“The board shall adopt reasonable and proper rules to govern and provide for the kind and character of notices, and the service thereof, in cases of accident and injury to employees, the nature and extent of the proofs and evidence, and the method of taking and furnishing the same, to establish the right to benefits of compensation from the state insurance fund, hereinafter provided for, the forms of application of those claiming to be entitled to benefits or compensation therefrom, the method of making investigations, physical examinations, and inspections, and prescribe the time within which adjudications and awards shall be.made.”

Acting on the authority thus granted, the board has formulated a set of rules which are printed on the back of the paper sent forward by the plaintiff, as already stated. A copy, of this paper is attached as an exhibit to the answer in this case, so ' that we. have the whole question before us on the record, as it was also before the trial court when the motion to arrest the case from the jury was made and denied.

It is difficult from a mere inspection of these rules to say whether they contemplate, at least in some cases, two applications — one preliminary and the other final — or not. The first paper to be sent forward is not called an application, but a notice (see rule 4). It is required — so the rule says — from an injured employee “who contemplates filing an application for an award.” It is contended for the plaintiff that rule 7 is the one which was operative in his ease. It is as follows: “Applications for awards in all cases of injury not resulting in death must be made by the party injured not less than two weeks nor more than three months after the injury is received.” * * * This application it is said never was made, and — such is the argument — the plaintiff merely exercised the option reserved to him by the statute of waging his rights in court rather than before the board.

It certainly is true that in some cases an award may be made without the application required by rule 7. This is so where the claim is for medical services and does not involve compensation for injuries. Rule 8 specifically so says. So that, without regard to rule 7, the board may, and does assume jurisdiction upon what rule 4 designates a “notice.”

That the board considers itself as entertaining jurisdiction under what it calls the preliminary notice provided for by rule 4, is clear also from rule 9, which requires the one filing the notice to be reminded of that fact in case he has neglected to proceed further, and thereupon to find that he has waived his right to compensation by his default.

The statute does not itself require or contemplate two applications, and whenever the board acquires jurisdiction it may, and should, pursue it to the effect which the act by its adoption was designed to reach.

It is quite true that rule 4 does not speak of an application but a notice, and while it is also true that the blank upon which the plaintiff sent forward the paper referred to styles it ‘ ‘ First Notice of Injury and Preliminary Application,” neither of these designations is the language of the plaintiff. Both are the work of the printers — directed, no doubt, by the board — but by neither does the plaintiff say that he is sending a notice and not an application, or that if the paper is to be considered as an application at all, it is to be regarded as tentative and preliminary only, and not final. When he does speak in the paper, his language is direct and unequivocal; it is not open to change by construction — so plain and unambiguous is it. It says: “I hereby make application to the Industrial Commission of Ohio for the payment of money out of the state insurance fund, on account of the injury to me hereinafter described.” He then requests the necessary blanks and forms to perfect his evidence. The latter was all he was called upon to do by the terms of rule 4, and his preceding explicit application for compensation was wholly redundant, unless it operated to confer jurisdiction on the board to proceed and adjudicate his case. If language goes for anything at all, this language started the machinery of the board, and the applicant could have compelled action clear through to the end of his case — subject of course to such requisitions of the board as might be proper to bring any lacking data or proof before them. It is perhaps unfortunate that there should be any ambiguity in the rules as the board has seen fit to promulgate them, or that there should be a repugnancy between the caption to a blank and the material and substantial thing absolutely stated below the caption. In such case the substance must prevail over form, and in any case the clear purpose of the statute must be carried out, which purpose manifestly is not to let a litigant change his forum after he has once effectually chosen one.

The statute could confer on the board the power to make all needful rules. It could not give the board power to say by a rule that an application is not an application but a notice. The statute itself requires an application, and it is not to be supposed that the legislative intent was to allow a plain clear application to be construed as something that is not an application at all, but something very different.

While the purpose of this statute is highly remedial and it is for that reason to be liberally interpreted, this consideration does not permit a construction of it that amounts to a contradiction of its own terms or a manifest perversion of its language.

In giving this conclusive effect to the plaintiff’s own act in choosing his own remedy, we are far from attaching the importance to our conclusion that was intimated at the argument. The plaintiff is by no means stripped of the remedy which he himself elected in the first place to pursue. The statute, Sec. 1465-76, says:

“Such board shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than as herein provided; but may make the investigation in such manner as in their judgment, is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of this act. ’ ’

Under the plenary power thus conferred and wholly in consonance with the evident policy of the law, the board, by rule 11, has spoken, as follows:

“The provisions of rules 4, 5, 7 and 8 will not be relaxed, unless, in the judgment of the board, the failure to observe their provisions was occasioned by want of knowledge of their ex-' istence, and unless their strict enforcement will result in hardship and injustice. In such instances the commission will, upon application, extend the time for filing.”

Bearing in mind that it was under rule 8, which may in a case of hardship be relaxed, that the board made its finding that the plaintiff had waived the prosecution of his claim, then by the mandate of the section of the statute last quoted the spirit of the act should be enforced by the allowance of further proceedings towards that remedy which the plaintiff elected to invoke, as we have found, and from the due and effectual prosecution of which he was for some reason induced, or chose to abstain.

It is equally the spirit and the purpose of the act to forbid the sampling of forums for the redress of their grievances by in jured parties. The election of one, once made, precludes the pursuit of another. The plaintiff in this ease having made his choice must be held to it.

It follows that the trial judge should have allowed the motion of the defendant to take the case from the jury in the first instance — the facts then appearing which left him no standing in court. Cornell v. Morrison, 87 Ohio St. 215 [100 N. E. Rep. 817].

This conclusion makes unnecessary any discussion of the other assignments of error made in the brief.

For the error found, the judgment complained of is reversed, and final judgment for the plaintiff in error is now rendered — such being what should have been done by the trial court.

Winch and Meals, JJ., concur.


author: KINKADE, J.

text:
    MASTER AND SERVANT.
    [Lucas (6th) Circuit Court,
    June 12, 1909.]
    Parker, Wildman and Kinkade, JJ.

      Clarence S. Doyle v. Toledo Furnace Co.
    Peremptory Order from Master to do Act of Simple Character not Ground for Damages for Personal Injuries.
    A peremptory order from a master to a servant to do a certain thing does not of itself render the master liable for injuries received by the servant while obeying the command so given, where the thing ordered done is of a simple every day character and one which any adult would understand as fully as the master.
    Error to common pleas court.

      Stephen Brophy, for plaintiff in error:
    Assumption of risk, Hitrits v. Brown, 180 Fed. Rep. 1019; West v. Railway, 179 Fed. Rep. 801 [103 C. C. A. 293] ; KlunJc

      v. Railway, 74 Ohio St. 125 [77 N. E. Rep. 752]; Insurance Go. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571] ; Perry v. O’Neil, 78 Ohio St. 200 [85 N. E. Rep. 41] ; Labatt; Mast. & Serv. See. 433; Van Dusen Gas & Gasoline Eng. Go. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998] ; Larimore v. Wells, 29 Ohio St. 12; Pennsylvania Co. v. McCurdy, 66 Ohio St. 119 [63 "N. E. Rep. 585] ; Cincinnati Gas & Elec. Co.- v. Johnston, 76 Ohio St. 119 [81 N. E. Rep. 155].
    Doctrine of direct command, Golley & Finley Iron Wks. v. Callan, 4 Circ. Dec. 233 (9 R. 217); Cleveland, C. C. & St. L. Ry. v. Tehen, 26 O. 0. 0. 457 (4 N. S. 145) ; affirmed, no op., Cleveland, C. C. & St. L. Ry. v. Tehan, 72 Ohio St. 689; Crockett v. Michael, 29 O. 0. C. 41 (9 N. S. 15); 2 Cooley, Torts (new ed.) 1136, 1137, 3138; Thompson, Negligence (2 ed.) Sec. 3809; Miller v. Railway, 12 Fed. Rep. 600; Northern Pac. Ry. v. Egeland, 163 0. S. 93 [16 Sup. Ct. Rep. 975; 41 L. Ed. 82]; Southern Pac. Ry. v. Yeargin, 3.09 Fed. Rep. 436 [48 C. C. A. 497] ; National Steel Co. v. Hore, 155 Fed. Rep. 62 [83 C. C. A. 578] ; Felton v. Girardy, 104 Fed. Rep. 127 [43 C. C. A. 439]; Pennsylvania Ry. Go. v. Garcia, 3.52 Fed. Rep. 104 [81 C. C. A. 322] ; Choctaw 0. & G. Ry. v. Jones, 77 Ark. 367 [92 S. W. Rep. 244; 4 L. R. A. 837; 7 Ann. Cas. 430}; Southern Cotton Oil Co. v. Spotts, 77 Ark. 458 [92 S. W. Rep. 249]; Mullin v. Horseshoe Co. .105 Cal. 77 [38 Pac. Rep. 535] ; Cincinnati I. St. L. & C. Ry. v. Lang, 118 Ind. 579 [21 N. E. Rep. 317] ; Oolitic Stone Co. v. Ridge, 174 Ind. 558 [91 N. E. Rep. 944]; Madden Son & Co. v. Wilcox, 174 Ind. 657 [91 N. E. Rep. 933]; Consolidated Coal Co. v. Haenni, 146 111. 614 [35 N. E. Rep. 362]; Illinois Steel Co. v. Schymanowski, 162 111. 447 [44 N. E. Rep. 876]; Kapacsynski v. Wells Co. 110 111. App. 477; Pressed Steel Car Co. v. Herath, 110 111. App. 596; Barnett & Record Co. v. Schlapka, 208 111. 426 [70 N. E. Rep. 343]; Henrietta Coal Co. v. Campbell, 211 111. 216 [71 N. E. Rep. 863j; Greenleaf v. Railway, 29 Iowa 14 [4 Am. Rep. 181]; Illinois Cent. Ry. v. Keebler, 27 Ky. Law Rep. 305 [84 S. W. Rep. 1167]; Lord v. Wakefield, 185 Mass. 214 [70 N. E. Rep. 123; McKee v. Tourtellotte, 167 Mass. 69 [44 N. E. Rep. 3.071; 48 L. R. A. 542] ; Igo v. Railway, 204 Mass. 197 [90 N. B. Rep. 575]; Chicago & N. W. By. v. Bay-field, 37 Mich. 205; Shorlell v. City of St. Joseph, 104 Mo. 114 [16 S. W. Rep. 397; 24 Am. St. Rep. 317] ; Chicago B. I. & P. By. v. McCarty, 49 Neb. 475 [68 N. W. Rep. 633] ; Bering Mfg. Co. v. Femelat, 35 Tex. Civ. App. 36 [79 S. W'. Rep. 869] ; Norfolk & W. By. v. Ward, 90 Ya. 687 [19 S. B. Rep. 849; 24 L. R. A. 717; 44 Am. St. Rep. 945] ; 26 Cyc. L. & P. 1163, 1164; Lake Shore & M. S. By. v. Corcoran, 6 Gire. Dec. 773 (14 R. 377); Lake Shore & M. S. By. v. Lavalley, 36 Ohio St. 221; Lake Shore & M. S. By. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Hennessy v. Boston, 161 Mass. 502 [37 N. E. Rep. 668] ; Cincinnati H. <& H. By. v. Frye, 80-Ohio St. 289 [88 N. É. Rep. 642; 131 Am. St. Rep. 709] ; Tibbs v. Manufacturing Co. 182 Fed. Rep. 448 [104 G. G. A. 488] ; Texas c& Pac. By. v. Archibald, 170 U. S. 665 [18 Sup. Gt. Rep. 771; 42 L. Ed. 1188] ; Missouri Pac. By. v. Lehmberg, 75 Tex. 61 [12 S. W. Rep. 838j ; Hough v. liailway, 100 U. S. 223 [25 L. Ed. 612] ; Union Pac. By. v. Fort, 84 Li. S. (17 Wall.) 553 [21 L. Ed. 739] ; Ford v. Bailway, 110 Mass. 240 [14 Am. Rep. 598] ; Labatt, Mast. & Serv. Secs. 2, 6, 28; Thompson, Negligence (2 ed.) Sec. 4614; Benzing v. Steinway, 101 N. Y. 547 [5 N. E. Rep. 449] ; Bichards v. Hayes, 17 App. Div. 422 [45 N. Y. Supp. 234]; Bowen v. Bailway, 95 Mo. 268 [8 S. W. Rep. 230] ; Lauter v. Duckworth, 19 Ind. App. 535 [48 N. E. Rep. 864] ; 1 White, Pers. Inj. See. 384 (1909 ed.); Littlefield v. Allis Co. 177 Mass. 151 [58 N. E. Rep. 692] ; Mannion v. Hagan, 9 App. Div. 98 [41 N. Y. Supp. 86]; Bepublic Iron & Steel Co. v. Ohler, 161 Ind. 393 [68 N. E. Rep. 901] ; Orr v. Telephone Co. 130 N. C. 627 [41 S. E. Rep. 880],
    Distinction between assumption of risk and contributory negligence, Labatt, Mast. & Serv. Secs. 305, 309; Thompson. Negligence (2 ed.) Sec. 4611; Cole v. Transit Co. 183 Mo. 81 [81 S. W. Rep. 1138] ; Pauck v. Provision Co. 159 Mo. 467 [61 S. W. Rep. 806] ; Curtis v. McNair, 173 Mo. 270 [73 S. W. Rep. 167] ; Parks v. Bailway, 178 Mo. 108 [77 S. W. Rep. 70; 101 Am. St. Rep. 425] ; Cleveland, C. & C. By. v. Terry, 8 Ohio St. 570; Lake Shore & M. S. By. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Fisher v. Railway, 22 Ore. 425 [30 Pac. Rep. 425] ; Washington & G. Ry. v. McDade, 135 TJ. S. 554 [10 Sup. Ct. Rep. 1044; 34 L. Ed. 235].
    Competency of evidence of usage, custom and practice and expert testimony, Wigmore, Evidence Sec. 461; Bailey, Pers. Inj. (1897 ed.) Sec. 1744; Elliott, Evidence Sec. 2505; Rice, Evidence (1892 ed.) Sec. 440-b; Thompson, Negligence (2 ed.) Secs. 7776, 7777; Baird v. Reilly, 92 Fed. Rep. 884 [35 C. C. A. 78] ; Hennesey v. Bingham, 125 Cal. 627 [58 Pac. Rep. 200]’; New England Glass Co. v. Lovell, 61 Mass. (7 Cush.) 319; Punkowski v. Leather Co. 4 Pen. 544 (Del.) [57 Atl. Rep. 559] ; Indiana I. & 1. Ry. v. Bundy, 152 Ind. 590 [53 N. E. Rep. 175]; Taylor v. Coal Co. 110 Iowa 40 [81 N. W. Rep. 249] ; Myers v. Iron Co. 150 Mass. 130 [22 N. E. Rep. 631] ; Lang v. Terry, 163 Mass. 138 [39 N. E. Rep. 802] ; McCarthy v. Duck Co. 165 Mass. 165 [42 N. E. Rep. 568] ; O’Brien v. Look, 171 Mass. 36 [50 N. E. Rep. 458] ; Sisson v. Railway, 14 Mich. 489 [90 Am. Dec. 252] ; Bettys v. Denver Twp. 115 Mich. 228 [73 N. W. Rep. 138] ; Flanders v. Railivay, 51 Minn. 193 [53 N. W. Rep. 544] ; Kolsti v. Railway, 32 Minn. 133 [19 N. W. Rep. 655] ; Filer v. Railway, 49 N. Y. 42; Harnett v. Garvey, 66 N. Y. 641; Richmond Locomotive Wks. v. Ford, 94 Va. 627 [27 S. E. Rep. 509] ; Steamboat Clipper v. Logan, 18 Ohio 375; Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. 452 [59 Am. Dec. 684] ; Baltimore & O. Ry. v. Schultz, 43 Ohio St. 270 [1 N. E. Rep. 324> 54 Am. Rep. 805] ; Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. Rep. 457; 76 Am. St. Rep. 437] ; Memphis & C. Packet Co. V. Britton, 25 O. C. C. 253 (1 N. S. 33); Toomey v. Stamping Co. 11 Circ. Dec. 216 (20 R. 183); Lake Shore & M. S. Ry. v, Whidden, 13-23 O. C. C. 85 (2 N. S. 544).
    What certainty of proof is required as to how servant was injured, Davis v. Guamieri, 45 Ohio St. 470 [15 N. E. 350; 4 Am. St. Rep. 548]; Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26] ; Cincinnati H. & D. Ry. v. Frye, 80 Ohio St. 289 [88 N. E. Rep. 642; 131 Am. St. Rep. 709] ; Rowe v. Baber, 93 Ala. 422 [8 So. Rep. 865] ; Supreme Conclave Knights of Damon v. Wood, 320 Ga. 328 [47 S. E. Rep. 940];
      National Steel Co. v. More, 155 Fed. Rep. 62 [83 C. C. A. 578] ; Igo v. Railway, 204 Mass. 197 [90 N. E. Rep. 574] ; Gagnon v. Machine Co. 174 Fed. Rep. 477.

      King, Tracy, Chapman & Welles, for defendant in error:
    Assumption of risk, McGill v. Traction Co. 79 Ohio St. 203 [86 N. E. Rep. 989; 19 L. R. A. (N. S.) 793; 128 Am. St. Rep. 705] ; Labatt, Mast. & Serv. 1233.
    Direct command, Cincinnati Gas Elec. Co. v. Johnston, 76 Ohio St. 119 [81 N. E. Rep. 155] ; Vanderpool v. Partridge, 79 Neb. 165 [112 N. W. Rep. 318; 13 L. R. A. (N. S.) 668]; Martin v. Manufacturing Co. 128 N. C. 264 [38 S. W. Rep. 876; 83 Am. St. Rep. 671] ; H. S. Hopkins, Bridge Co. v. Burnett, 85 Tex. 16 [19 S. W. Rep. 886]; Koschman v. Ash, 98 Minn. 312 [108-N. W. Rep. 514; 116 Am. St. Rep. 373] ; Stork v. Cooperage Co. 127 Wis. 318 [106 N. W. Rep. 841; 7 Ann. Cas. 339]; Langhorn v. Wiley, 28 Ky. Law Rep. 1186 [91 S. W. Rep. 255] ; Meyer v. Ladewig, 130 Wis. 566 [110 N. W. Rep. 419; 13 L. R. A. (N. S.) 684j ; Lynn v. Sugar Co. 128 Iowa 501 [104 N. W. Rep. 577]; Mulligan v. Crimmins, 75 Hun. 578 [27 N. Y. Supp. 819],

      Affirmed, no op.,- Doyle v. Furnace Co. 85 O. S. 463.

   KINKADE, J.

The common pleas court directed a verdict for the defendant on the authority of Nusbaum v. Railway, 35 O. C. C. 121. It is said that the trial judge made a serious error in failing to discover the fact that this case belongs in a different class than cases like the Nusbaum case, for the reason that in this case there was a peremptory order by the master to do what was done by the servant, and hence none of the principles involved in the Nusbaum case apply here. We are advised that this case belongs to that elass of eases best described by our own Supreme Court in Van Duzen v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998], and all that is necessary is to assign this ease to its proper place, and all difficulties will at once disappear. From the number of times that this Van Duzen case is cited as a controlling authority in personal injury cases, one might conclude that it is a specific for all ills and injuries arising from torts of every kind. Just why it should be so regarded, when the case makes no such pretensions and the Supreme Court has several times stated its proper scope, we do not pretend to understand.

' We have devoted-a good deal of time to an examination of the record in this case and have examined with care the brief of counsel for plaintiff in error. This brief is very exhaustive, very well prepared for ready reference with the least practicable confusion and delay in finding what is wanted on any of the points discussed, and it may be said that it fairly covers about all the important cases to be found on the different subjects treated. It is said that when the situation is properly considered from the right view point, harmony and only harmony can be seen in all the well considered cases on questions involved. This may be so, but as we read the cases there is a good deal of conflict. We cari not take the time to review all the cases cited by counsel," and we will only state the conclusions we have reached in this case.

Even considering that there was a peremptory command from the master to the servant in this case to do the thing that was done, we are of the opinion that no recovery can be had in this case for the reason that the order was to an adult and was to do a thing in no sense out of the ordinary course of human affairs, a simple thing that any adult can know all about as easily as can the employer. If the doctrine contended for by the plaintiff in this case is correct, then before any employer can safely ask a servant to chop wood, the master must first learn whether the servant knows that in chopping wood chips may fly, or else he may be liable for an injury caused by flying chips. It is even said that in all cases where a peremptory order is given, the burden is upon the master to show that the servant not only knew what was likely to happen, but that he fully appreciated the situation in all its respects. We say that it is no hardship to hold then an adult who understands the intricacies of the Australian ballot should be presumed to know the powerful simplicity of the ax, the hammer, the spade and the pick. We need not multiply illustrations. Many will readily suggest themselves to anyone who considers the subject in all its scope.

Our conclusion is that tbe principles contended for, while proper enough in cases to which they may apply, have no application to the commonplace every day affairs of men that are perfectly simple and easily comprehended by any adult person. We are aware that eases like the one at bar in many respects have been sustained by courts, and our conclusions have not been arrived at without a full consideration of the reasoning in those eases, but after full reflection, we feel compelled to decline to follow those decisions. If any such rule is to be adopted in Ohio, we have no ambition to be the first in announcing it We prefer to respectfully wait until we hear from our own Supreme Court on this subject. We find no prejudicial errors in the record and the judgment of the court of common pleas will be affirmed.

Parker and Wildman, JJ., concur.


author: SWING, J.

text:
    ACTIONS — ACCOUNTING—PARTNERSHIP.
    [Hamilton (1st) Court of Appeals,
    July 14, 1913.]
    Swing, Jones and Jones, JJ.
    Morris L. Buchwalter, Admr. v. Byron M. ClenDening and Snow-Church Co.
    1. Estoppel to Bring Second Action not Avoided by Changing the Form.
    A plaintiff against whom judgment has been rendered is estopped from prosecuting a second action against the same defendant for the same subject-matter by merely changing the form of the suit.
    2. Distribution of Fees in Law Partnership.
    Business brought into a law firm by one member, though in the name of the other member, becomes, under a partnership agreement that all matters brought into the “concern” by the former member shall remain in his care as his own business, all other matters to remain the business of the concern, and neither partner to have a claim on pending business at the termination of the agreement, the business of the former, especially since the business was all done after the death of the latter and the fees properly belong to the former.
    [Syllabus approved by the court.]

      Appeal from common pleas court.

      Robertson & Buchwalter, for plaintiff.

      Ellis G. Kinkead, for defendants.
   SWING, J.

This case is here on appeal and is an action for an accounting growing out of a partnership. We are of the opinion that on the law and the facts plaintiff has not made out a case and that his petition should be dismissed.

The evidence seems clear and conclusive to the effect that Mr. Woodward, acting for the Inter-terminal Company, employed Mr. ClenDening to transact the necessary legal business connected with the project in hand; that Mr. ClenDening entered upon the work in the early part of the year 1902; and that he continued in this work under a verbal contract until June 16, of that year, when Mr. Campbell came to Cincinnati, when he advised that the contract should be reduced to writing and this was done. The contract, by mutual consent, and for good reasons as it seemed to both ClenDening and Campbell, was taken in the name of Mr. Campbell, but it was not intended to make the contract made by Mr. ClenDening the individual contract of Mr. Campbell Very little of the total work done under this contract was done till after the death of Mr. Campbell.

The contract of partnership between Campbell and Clen-Dening contained this provision:

“In the event of a termination of this agreement, all matters brought into this concern by Mr. ClenDening shall remain in his care as his own business, all other matters to remain the business of Snow-Church Co. or Mr. Campbell. Neither party to have a claim against the other for work done on pending business at the time of termination hereof.”

The evidence seems clear that the business connected with the Inter-terminal Company was brought into the “concern” by Mr. ClenDening and all work done under it was done by Mr. ClenDening except the drafting of the contract; and by the express terms of the contract, as well as the justice of the ease, Mr. ClenDening should be entitled to the fees earned under the contract.

There seems to us still another reason why the plaintiff should not recover in this action. ■ Some years ago the plaintiff, seeking to recover under this contract brought a suit to which Mr. ClenDening was a party, claiming that' under the contract he was entitled to the whole amount which was due from the Inter-terminal Company. This suit was decided against the plaintiff in the court of common pleas, and affirmed by the circuit court, and on error to the Supreme Court the judgment of the circuit court was affirmed. In that case the only controversy litigated was whether Campbell or ClenDening was entitled to the fee. The litigation was carried on wholly by the parties to this action. The parties in this action who are interested áre the same and the subject of the controversy is the same; the only difference is in the form of the action. Plaintiff having elected to bring this action in the manner he did, and it having been decided against him, should be estopped from prosecuting another action for the same subject-matter in another form.

As to the books and office furniture, that does not appeal to us as being of much moment or serious controversy and should be adjusted by the parties on a fair basis.

Jones and Jones, JJ., concur.


text:
    DRAINS AND DITCHES — PRINCIPAL AND SURETY.
    [Darke (2nd) Court of Appeals,
    May 23, 1913.]
    Allread, Ferneding and Kunkle, JT.
    Stoltz et al. v. State, ex rel. Krickenberger.
    Bond of Petitioners for County Ditch, Authorized by Commissioners, but Enjoined by Landowners, not Liable for Costs and Expenses.
    The obligors upon the bond of petitioners for a county ditch are not liable for costs and expenses, where the commissioners upon the hearing find in favor of and grant the prayer of the petition, although subsequently the proceedings are, upon the petition of landowners, enjoined for want of jurisdiction and the commissioners acting in conformity to such injunction dismiss the ditch proceedings at the costs of the county.
    ¡[Syllabus by the court.]
    Error.

      T). W. Bowman, M. B. Trainor and W. T. Stubbs, for plaintiffs in error.

      O. B. Kriclcenberger, for defendant in error.
   ALLREAD, J.

The action in the court below was brought in the name of the state by a taxpayer for the use of Darke county against A. D. Shell and others, petitioners upon the Greenville and Mud Creek ditch improvement, and the sureties upon the bond for costs incurred upon the ditch petition.

Shell and Bryson were petitioners upon the original petition for the deepening, widening and extension of the Green-ville and Mud Creek ditch improvement and executed bond in the sum of $500, together with Cashman and Rhoads as sureties, conditioned for the payment by said petitioners of all costs, “if the prayer of the petition be not granted or if for any other cause the same should be dismissed.” Schake, Triebold and Stoltz were petitioners for an extension up Green-ville creek. The original petition was filed on December 21, 190S. The petition for the extension was filed January 18, 1909.

On January 30, 1909, the board of county commissioners, upon a hearing of the petitions, found that the improvement was necessary for the drainage of the lands and conducive to the public health, convenience and welfare, and granted the prayer of both the original and supplemental petitions. Thereafter, upon injunction proceedings brought by landowners whose property was about to be taken, the commissioners were ■enjoined upon the ground that the order of the commissioners in locating the extended portion of the ditch and in changing the channel was void for want of jurisdiction. In pursuance to this decree and order of the court the commissioners on June ,2, 1910, ordered “that the said cause be and is hereby dismissed at the costs of the county to conform with the decision of the said circuit court.”

The costs of the ditch proceedings upon the original and supplemental petitions amount to $932.03, and this action is brought to recover this amount against the original and supplemental petitioners and against the sureties to the extent of the amount of the bond.

A general demurrer was sustained in the court of common pleas on the ground that no cause of action was stated. Upon petition in error to the circuit court this ruling was reversed and the cause remanded for further proceedings. Issues were joined upon the petition and the causes tried upon'; the evidence, resulting in a judgment against all the defendants; as prayed for.

Counsel have reargued many of the questions involved ini the demurrer, and we have reconsidered these questions so fair as pertinent to the case in its present form.

Objection is urged to the right of the taxpayer to bring the suit.

Section 2921 G. C. among other provisions, authorizes the prosecuting attorney, when satisfied “that money is due the county” to bring suit “to recover such money.”

Section 2922 G. C. provides that “if the prosecuting attorney fails, upon written request of a taxpayer of a county, to make the application or institute the civil action contemplated in the preceding section, such taxpayer may make such application or institute such civil action in the name of the state. ’ ’

There are other provisions in Sec. 2922 which we think are cumulative. The statute quoted, however, is broad enough, in our opinion to sustain the taxpayer’s right.

The present action involves at least two different grounds of liability. One relates to the petitioners for the extension who signed, no bond or other obligation and whose liability rests solely upon their being petitioners. The other relates to the petitioners and their sureties who are sought to be made liable by virtue of the bond.

' The liability of the petitioners for the extension rests upon Sec. 6453 G. C. Which provides, among other things, that “If the county commissioners find against the improvement, they shall dismiss the petition and proceedings at the costs of the petitioners:”

This is the only statute attempting to fix direct liability on the petitioners. It is not self-executing but requires an order of the commissioners to fix the liability. No such order has ever been made, and the liability is, therefore, not complete. It is urged that there is a common-law liability for the petitioners’ own costs. Whatever might be the rule as to the parities entitled to the costs created by order or direction of the petitioners, we think the rule of common-law liability does not prevail here in favor of the county. The absence, therefore, of a- contract obligation and of an order for costs against the petitioners is fatal to the cause of action against the petitioners as such.

The liability of the petitioners who signed the original bond, and of their sureties, stands upon a somewhat different principle and involves a construction of Sec. 6447 G. C. providing for the petition and bond, and Sec. 6453 in relation to the dismissal of the petition, together with other sections of the ditch chapter.

General power is granted the board of county commissioners by Sec. 6443 to construct necessary ditches and drains when conducive to the public health, convenience or welfare. This jurisdiction can not be exercised sua sponte. It is essential to support jurisdiction of the commissioners that a petition and bond be filed as provided for in Sec. 6447. When such petition and bond are filed with the county auditor, he is required to fix a day of hearing and furnish notices to be served upon the interested parties. Upon the hearing the county commissioners, if they find that the proposed improvement is necessary for drainage and conducive to the public health, convenience and welfare, are authorized to grant the prayer of the petition,- but if they find against the improvement they are required to dismiss the petition at the costs of the petitioners.

In granting the prayer of the petition the - commissioners are not confined to the route, proposed- by the petitioners but may in their discretion extend the ditch beyond the termini and change the line of the ditch proposed. There is a wide latitude of discretion vested in the county commissioners over the ditch after it has been once decided that the construction of the improvement prayed for is conducive to the public interest and necessary for drainage.

After the ditch has been established, its subsequent control is entirely in the hands of the board of commissioners and out of the influence and control of the original petitioners. It is then a public ditch under the control of the duly constituted public tribunal.

Upon appeal the statute expressly provides that the commissioners, as well as the petitioners, shall be parties to the appeal, and that if the appellants prevail the costs shall be adjudged against the commissioners and the petitioners, to be adjusted according to the discretion of the probate court.

At any time before the final hearing any party may file exceptions, under Sec. 6468 G. C., to the finding by the county commissioners of the necessity of the ditch, and if the exceptions are sustained the costs of the hearing shall be paid out of the county treasury.

The condition of the petitioners’ bond is “for the payment of all costs, if the prayer of the petition is not granted or is dismissed for any cause.” It is contended that the subsequent dismissal of the ditch proceedings in pursuance to the injunction of the court is a breach of the bond, and that the obligors thereof are liable. We think that Sees. 6447 and 6453 should be read and construed together, and in order to make out a liability there should be both a dismissal of the proceedings and an order against the petitioners for the payment of costs. It is urged, however, in respect to this that the judgment for costs is mandatory and follows as an incident, and that the mere dismissal of the petition creates the liability under the bond.

It will be observed that the finding of the commissioners as to the public nature of this ditch has never been set aside. So far as the commissioners are concerned the obligation of this bond was fully met when the prayer of the petition was granted. We do-not express an opinion upon a case as to where the commissioners subsequently vacate this order and dismiss the petition at the costs of the petitioners. We confine our decision to the facts exemplified in the present record. Subsequent to the granting.of the petition, it appears that by reason of the injunction, made perpetual in the circuit court, the commissioners were prevented from establishing a new channel and appropriating the lands involved by reason of which it became impracticable to undertake any part of the improvement. It was deemed advisable, therefore, to dismiss the proceedings, which they did at the costs of the county.

We have reached the conclusion that at this stage the ditch proceedings were so far in the control of the county commissioners as to give them a latitude of discretionary power over the dismissal, and that having made the dismissal at the costs of the county, we think there is no liability against the petitioners and their sureties.

It is urged that the liability of the petitioners and the sureties was intended as an absolute liability and a check upon the extravagance and corruption of the board of county commissioners. There is 'no charge whatever in the pleadings and no attempt to prove any fraud, corruption or bad faith on the part of the petitioners or the commissioners in the present case. We are called upon to construe statutory intention as deduced from statutory enactment, and we can not assume prima facie that the statutes contemplate official dereliction on the part of the county commissioners. If conspiracy, fraud or corruption is relied upon, it must be brought into the case by averment and proof.

We, therefore, hold that the petitioners for the Greenville Creek extension are not liable and that the judgment against them should be reversed and final judgment rendered in their favor. The judgment against the obligors upon the bond is reversed and the cause as to them will be remanded for further proceedings in ease the plaintiff below desires to amend his petition. Otherwise, the final judgment in this court may be rendered upon the pleadings and admitted facts.

Judgment accordingly.

Ferneding and Kunkle, JJ., concur.