text:
    PROCEEDINGS FOR REDEMPTION OF REAL ESTATE.
    Court of Appeals for Wood County.
    Jessie M. Shank v. Darwin B. Beers et al.
    Decided, February 5, 1914.

      Appeal — Right of, in an Action to Redeem Property Sold Under Foreclosure■ — Nature of Such an Action.

    Where the primary relief sought is the setting aside of a decree and the cancellation of conveyances, and as an incident thereof, the recovery of real estate, the action is one which is appealable.

      A. G. Fuller, for plaintiff.

      Kelly & Kill, contra.
   Richards, J.

Heard on motion to dismiss appeal.

The action was brought in the court of common pleas for the purpose of procuring the cancellation of a mortgage and redeeming certain real estate which had been sold under foreclosure proceedings in the Common Pleas Court of Wood County. The trial in that court resulted in a finding and decree in favor of the defendants, from which the plaintiff appealed to this court.

It appears from the pleadings in the case that the plaintiff and her husband executed to Darwin B. Beers, in the year 1895, a note in the sum of nine hundred dollars, payable five years after date, with interest, and that to secure the same they executed a mortgage on the real estate in controversy in this action. It appears that Beers brought an action in foreclosure, and that in the case such proceedings were had that a decree was entered in his favor, and thereafter the property was sold and a deed executed by the sheriff to the purchaser, and that from this purchaser, by sundry mesne conveyances, the legal title has passed to and is now vested in the defendant, Libbie Henning, who is in possession of the premises.

In the petition in the present action Darwin B. Beers is named as a defendant, and a personal judgment is asked against him for the amount which the rents and profits exceed the amount which would be due on the promissory note already mentioned; but no summons was served on Beers, although repeated attempts were made to procure service, and he did not enter his appearance in the action, and no order or judgment was made in the common pleas court against him. So far as the other defendants are concerned, the plaintiff asks in her petition that the decree, and-all conveyances and mortgages under which the defendants hold possession may be adjudged to be of no effect as against plaintiff’s title, and that she may be restored to possession and enjoyment of the premises and her title quieted, and for such further relief as she may be entitled to in the matter.

We think the action is clearly one in which the plaintiff, on being defeated in the common pleas court, is entitled to appeal to this court. It is said in argument that the action is one for the recovery of real estate, or ejectment, and in which the parties would be entitled to a trial by jury, but to that argument we can not accede. The primary relief sought is to set aside the orders and decrees of the trial court in the original foreclosure action and the subsequent conveyances of the real estate based on such judgment and order of sale in that case.

Of course, if the plaintiff should prevail, it would probably result in her recovering the real estate, but that would be only an incident to the main relief sought. Clearly an action to recover real estate, or, as it was called under the old law, ejectment, would not lie, for such an action could not be maintained until the plaintiff had gotten rid of the muniments of title now held by the defendant, Libbie Henning.

The case is quite similar to the one under consideration by the Supreme Court in Tierce, Assignee, v. Stewart, 61 O. S., 422. I quote from the opinion of the court on page 424: {

“Before any money judgment can be rendered, the court must examine and weigh the equities of the case, and exercise its sound judicial discretion. * * * Tbe equitable considerations and exercise of sound judicial discretion are the body and substance of such action, and a judgment for money or other relief in any particular case, is only an incident flowing from tbe determination of the body of tbe case.”

I quote also from Willson Improvement Co. v. Malone, 78 O. S., 240:

“It does not,.however, extend tbe right of trial by jury to eases calling for any form of relief peculiar to courts of equity. When tbe action is for tbe recovery of money, and no equitable relief is sought, it is an action for money only. ’ ’

In Jones on Mortgages, Volume 2, Section 1093, tbe true rule applicable to such eases is very well stated in tbe following language :

‘ ‘ Tbe only remedy of the mortgagor for enforcing bis right to redeem, after a breach of tbe condition, is by a bill in equity. If tbe mortgagee is in possession be has tbe right to retain the possession until bis claim upon tbe property is paid. So long as tbe mortgage is in fact not discharged, and is apparently a subsisting security, tbe mortgagor can not obtain possession by ejectment. The rule is tbe same, although tbe mortgagor claims that tbe debt has been paid in full. So long as tbe mortgage is apparently unsatisfied, and the mortgagee claims any interest under it, tbe mortgagor must resort to a suit in equity to redeem; and although be may allege that the mortgage has been paid or was given for tbe accommodation of tbe mortgagee, and may pray that a decree be entered that it be discharged, yet be should at tbe same time pray that be be allowed to redeem, and should offer to do so, if anything be found due upon tbe mortgage. ’ ’

We think, therefore, that the motion to dismiss tbe appeal should be overruled, andi such will be tbe order.

Kinkade, J., and Chittenden, J., concur.


source: Caselaw Access Project

author: Gorman, J.

license: Public Domain

text:
    CHILD RUNS INTO A CAR. AND IS INJURED.
    Court of Appeals for Hamilton County.
    Harry Cohn, by His Next Friend, Samuel D. Cohn, v. The Cincinnati Traction Company.
    Decided, November 29, 1915.

      Negligence — Degree of Care Required of a Motorman Toward Children in the Street — Addressing of a Remarle to a Juror Not Misconduct, When.

    1. A reply by a young attorney, not connected with the case on trial, to a casual question by a juror as the jury were retiring for deliberation, does not constitute misconduct warranting a reversal of the judgment.
    2. It is not error to refuse to charge a jury, in an action against a traction company for injury to a child, that if the motorman had reason to believe the child might come upon the track or within the danger zone of the car, then he was bound to exercise more than the ordinary degree of care incumbent upon him.
    3. A traction company is not liable for injury to a child eight years of age, who became frightened and in attempting to cross the street ran into a rapidly moving car, colliding with the car just behind the forward vestibule.

      Moulinier, Bettman & Hunt, for plaintiff in error.

      Joseph Wilby and James G. Stewart, contra.
   Gorman, J.

The plantiff in error by his next friend sought to recover damages for personal injuries claimed to have' been received on account of the negligence of defendant in error, whereby he was struck by a street car on Woodburn avenue, Cincinnati, on the 20th of February, 1912.

The plaintiff in error was a child eight years of age on his way to school. The evidence shows that he together with two schoolmates were going south on Woodburn avenue to attend school. While walking along the street on the sidewalk they noticed an empty brick wagon going south on Woodburn avenue towards their sehoolhouse. The boys thereupon got behind the brick wagon, Harry Cohn taking hold of the clothing of one of his companions. Almost immediately after getting behind the wagon they noticed an automobile approaching behind them going towards the south, and becoming frightened the boys ran towards the sidewalk. Harry Cohn running towards the west sidewalk and then towards the east side of Woodburn avenue. The car of the defendant company was passing north at a rapid rate of speed, and the evidence shows that the boy ran into the car near the front part where the front vestibule curved. It was a large pay-as-you-enter car with a stove on the left hand' side, and the evidence of all of the witnesses who observed the accident was to the effect that the boy was either struck or ran into the car just about where the stove in the front vestibule was located, and not in view of the motorman. The boy did not get upon the northbound track on which the car was running. The car went on, and apparently the conductor and motorman failed to see the boy who after being struck was thrown unconscious in the street between the two tracks. No person who was on the car was called as a witness.

The jury found for the defendant, and it is now claimed that there was error in the case in two respects: first, that there was misconduct, not on the part of counsel for defendant, but on die part of a young attorney who at that time had his desk in the office of counsel for defendant but was in no way associated with counsel for defendant or interested in the cause. It is claimed that this young lawyer spoke to one of the jurors as the jury was retiring after being charged by the court, and the father of the boy claims that he understood this young man to say to this juror “A verdict for the defendant in this case, gentlemen, please.”

The lawyer makes an affidavit to the effect that he.knew the juror to whom he spoke, and that he and the juror had been witnessing the trial of a ease in another room from that in which the case at bar was being tried, and the juror asked the lawyer what the verdict was in the other case in the other room, and he said to him there was a verdict for the defendant. Counsel for plaintiff do not claim that there was any intentional wrong on the part of this yonng attorney, but claim that his statement might have been overheard by the jury, and what helsaid might be construed as a request that the jury return a verdict for the defendant in the case at bar.

We have carefully considered this matter, and are of the opinion that there was no misconduct on the part of the young attorney, and nothing which would warrant the court in reversing the judgment on the ground of misconduct. Counsel for defendant in error are not responsible for what the young man may have said, nor is it shown that they were in any way chargeable with knowledge of .what he did or said. The trial court to whom the motion for new trial was directed had the whole situation before him, and he having refused to set aside the verdict because of misconduct, we feel that this court would not be in as good a position to determine the question of misconduct as the trial court.

The second ground of error complained of is that the court failed to charge the jury as to the proper degree of care which should be exercised by the motorman towards the plaintiff a child eight years of age.

The charge of the court upon this point we think was full and fair and laid down the correct rule as we conceive it. In defining negligence, the court in his charge uses the following language:

“Now this, gentlemen, brings us to the consideration of what were the relative rights and duties of the parties to this suit. Both parties * * * had an equal right in the streets, the traction company to operate its cars along the rails which are laid in the streets, and the plaintiff to walk in the street or to go across the street at a crossing, but each person, that is to say the plantiff and the defendant, owed a reciprocal duty one to the other, to avoid injuring each other. The traction company, in approaching a street crossing with its ear, must have its car under control, and must give warning of its approach. A pedestrian going across the street at a street crossing must use his faculties to look where he is going, to see that he himself does not run into danger, and both parties have a right to anticipate that neither oné will be guilty of negligence. The plaintiff Cohn had a right to expect, when he was crossing the street at a crossing, that the traction company would not be guilty of any negligence in operating its car, and the traction company had a right to expect that a person would not run in front of its ears, if that person had notice of the approach of the car.”

The court further charged as to the duty of the pedestrian and the defendant company:

“A man crossing the street must use his faculties and exercise his prudence, as the circumstances at the crossing demand, to avoid being injured by others who may be using the streets, and so those operating the cars must exercise ordinary care and prudence, as required by the situation, to avoid .injuries to anyone else who may be using the,streets.”

The court further charged the jury that the degree of care which was to be exercised by the motorman was “ordinary care under the circumstances. ’ ’

At the close of the charge, counsel for the plaintiff requested the court to charge as follows:

‘ ‘ I want to suggest that you charge the jury that if the motorman had reason to believe that the child might come upon the car track, or within the danger zone of the car, then he must exercise more than the ordinary degree of care.”

The court refused to give this charge, and it is complained that in so doing the court erred. At least it is claimed the court should have given some such charge as this, or should have charged that the defendant company owed a higher degree of care than ordinary care to the plantiff because of his tender years.

This court, in the case of Cincinnati Traction Co. v. Burlcharft, reported in the Court Index, September 15, 1915, held that it was improper for the court to charge the jury that a greater degree of care than ordinary care was necessary where a person who was about to board a car had a crippled' hand. To the same effect is the ruling in Morgenroth v. Traction Co., 18 C. C; (N. S.), 306, in which the court says, on page 30'6:

“In an action for damages against a traction company for injury sustained by a child run over while playing in the street, a request to charge the jury, ‘that a street railway company in the operation of its ears upon the public streets is required to exercise more care at those places where children congregate and play than is ordinarily required,’ should not be given, for ‘ordinary care’ is the standard, and not ‘more care than is ordinarily required.’ ”

We think the record in this case fails to show that the defendant company was guilty of such culpable negligence as would warrant the jury in returning a verdict in favor of the plaintiff. It appears that the verdict and the judgment were as they should have been, and therefore it is not material what errors may have been committed in the trial of the cause, because the same would not be prejudicial to the plantiff in error if upon the whole view of the case the plantiff failed to establish a case entitling him to recover

Judgment affirmed.

Jones (E. IT.), P. J., and Jones (Oliver B.), J., concur.


author: Richards, J.

text:
    DETERMINATION AS TO DOWER..
    Court of Appeals for Wood County
    Samuel H. Pelton v. Edwin Smith et al.
    Decided, October 24, 1912.

      Action to Fix Dower Appealable — Mortgages Existing Prior to Coverture Payable Before Dower is Determined.

    1. An action to determine whether plaintiff is entitled to dower in the entire proceeds from the sale, or only in the surplus after satisfying a mortgage lien, is appealable.
    2. Where a mortgage was placed on the premises prior to the marriage of the plaintiff to the mortgagor, the mortgagor at no time during coverture had more than an equity of redemption in the property, and the plaintiff is therefore dowable only out of the surplus after satisfaction of the mortgage.

      Benj. F. James, for plaintiff.

      R. D. Mooré, e'ontfa.
   Richards, J.

In the court of common pleas, Samuel IT. Pelton brought an action for the purpose of obtaining an assignment of dower claimed by him in a tract of land containing forty acres in this county. On the trial a decree was entered adjudging the plaintiff to be entitled to dower, but only in the surplus remaining after a certain mortgage was satisfied. From that decree the plaintiff prosecuted both error and appeal, claiming that he was entitled to dower in the entire proceeds of sale without abatement therefrom.

Under authority of Corry v. Lamb, 43 O. S., 390, we hold that the case is appealable, and therefore case No. 950 will be dismissed and the question determined in the appeal case, No. 952.

It appears from the record in the ease that the plaintiff intermarried with one Mary D. Smith about August 12th, 1908, and remained her husband until the date of her death, June 30th, 1912. At the time they were married a mortgage given by her was held by the Mutual Benefit Insurance Company of New Jersey, covering the premises in which plaintiff seeks dower. In. this case, by proper decree entered in the court of common pleas, the premises have been sold and the amount found due upon the mortgage determined, that amount being some $1,558. The purchase price of the land on sale made by the sheriff amounts to the sum of $4,000.

In view of the fact that, the mortg’age was on the premises at the time the plaintiff was united in marriage with the mortgagor, she had at no time during coverture more than an equity of redemption in the property, and he therefore could only be dowable out of the surplus after the satisfaction of the mortgage. The principle enunciated in Nichols v. French, Admr., 83 O. S., 162, is applicable and controlling in the case at bar, and decree may be entered finding the plaintiff entitled to dower in the surplus remaining after the satisfaction of the mortgage indebtedness.

Wildman, J., and Kinkade., J.-, eon'cur.


author: Richards, J. Kinkadb, J. Richards, J.

text:
    LINEMAN KILLED BY FALL FROM A POLE.
    Court of Appeals for Lucas County.
    Rilla Davidson, Administratrix of the Estate of John H. Davidson, Deceased, v. The Toledo Home Telephone Company.
    Decided, February 23, 1915.

      Negligence — Guy Wire of Telephone Pole Bréales, Causing Fall of Lineman — Custom or Habit of Linemen to Depend on Guy Wires for Support Competent — Where Known to the Company, in Determining Whether Ordinary Care Was Used.

    1. Where an employee making repairs at the top of a telephone pole and supporting himself in part by the aid of a guy wire, which was claimed to be defective, fell, by the breaking of the guy wire, and was killed, evidence of a custom, usage, habit or general practice of employees to use the guy wire as a support, known to the employer,' or which by the exercise of ordinary care should have been known by it, is competent.
    2. While neither custom nor usage can justify or excuse a negligent act, they may be competent evidence to aid a court in determining whether a given act was negligent, the ultimate question being whether under all the circumstances ordinary care was exercised.
    O. 8. Brumback, for plaintiff in error.

      Boyle, Lewis, Lewis & Emery, contra.
   Richards, J.

Error to the court of common pleas.

John H. Davidson, the decedent, "was an employee of the Toledo Home Telephone Company as a lineman, and lost his life as a result of an injury received on December 16, 1913, by falling from a pole of that company located near West Woodruff street in the city of Toledo. It is admitted that the company had in its employment a large number of workmen and had not paid info the state insurance fund the prémium provided for by the workmen’s compensation law. At the close of the evidence offered on behalf of the plaintiff, the court, on motion, directed a verdict for the defendant company and on that verdict judgment has been rendered.

The petition alleges that in the performance of the duty of the decedent as a lineman he had climbed a pole of the company- and, in connection with a fellow-workman, was making certain repairs. It is further averred that the decedent, to steady himself upon the pole in the way that had been customary, placed his leg against or upon a guy wire and the guy wire suddenly broke and he was precipitated to the ground, a distance of about thirty feet. It is averred that it was and had been customary for linemen in performing that duty to use the guy wire as he was doing, and that that custom or usage was well known to the company, and that this guy wire was old, rusty and defective.

The plaintiff in undertaking to make out a case offered evidence for the purpose of proving the practice or custom of workmen engaged in the performance of the duties about which the decedent was employed, to use the guy wires for the purpose of supporting themselves while performing similar duties on poles of the defendant company. This evidence was rejected, and the plaintiff not being allowed to introduce evidence of the usage or custom of devoting the guy wires to this purpose, it resulted that the trial judge directed a verdict for the defendant. Much of the evidence which was offered on this branch of the case was incompetent and was rightly rejected, but a majority of the court are of opinion that some of it which was rejected was competent and should have been recived. The trial judge appears to have entertained the view that the existence of a custom or usage was not a matter of fact to which a witness should be permitted to testify. We hold, however, that a witness who is properly qualified should be allowed to testify as to the existence of a custom or usage of which it is shown he has knowledge, and that such testimony is not matter of opinion, but is as to the existence of a fact.

One Louis J. Higgins was called as a witness and it developed that he had been employed in line work for the Toledo Home Telephone Company from about February, 1912, to September, 1913, and was familiar with the methods in which such work was ordinarily performed by linement in the employment of that company. He was asked, this question: ‘ ‘ What, if any, use was customarily made of the guy wire upon the poles like the one from which Mr. Davidson fell, by the men at work on the pole to support themselves?” This question was objected to by counsel for the defendant, whereupon the plaintiff offered to prove by the answer of the witness that the men did the work customarily by leaning against the guy wire, or by putting their leg over it, as they might find it convenient, to help themselves in doing their work. The trial judge, iii sustaining the objection, stated that the objection was not only to the form of the question, but also as calling for a conclusion of the witness. We think the court erred to the prejudice of the plaintiff in sustaining the objection to this question and other questions of like character. The examination of the witness showed that he was testifying, or attempting to testify, to the manner in which linemen ordinarily supported themselves on poles in the performance of their duties at and before the date of the decedent’s fatal injury. If this evidence and other of like character had been admitted and had shown that the practice was uniform, extending over such a period prior to the injury as would authorize the jury to find that the company knew the guy wires on its poles were being used for that purpose, then a question of fact would have been raised as to the negligence of the defendant company. The evidence, if received, would have tended to show such practice, and we think it was prejudicial error to exclude the same. The primary purpoes of a guy wire is, of course, to be what its name indicates and thus furnish support and stability to the pole, we suppose it is competent to show by evidence, if it is a fact, that the guy wire is commonly used for an additional purpose, for instance, to furnish support and stability to workmen while on the pole; and if the evidence should show that the guy wires of this company were commonly devoted to that additional purpose, at and before the fatal injury to the decedent, and to the knowledge of the company, then the inquiry would properly be made whether the company was guilty of any want of ordinary care in maintaining the guy .wires, in view of such general use, and whether, in view of such evidence, the injury could reasonably be anticipated. We do not mean to intimate that the evidence was of such a character as would have justified the jury in finding the existence of such practice or custom, but only that the evidence tended to show the same and should have been received.

It is insisted in argument by counsel for the defendant in error that the result reached in the court of common pleas is required by the decision of the Supreme Court in Cincinnati Gas & Electric Co. v. Archdeacon, Admr., 80 O. S., 27. Much similarity exists between the two cases. In that case, however, the doctrine of contributory negligence was applicable and to that extent the remarks of the Supreme Court are not pertinent to the case at bar. It will also be noticed that no attempt was made in that case to show by evidence that the appliances on the pole were devoted to any other than their primary purpose. In the course of the opinion Shauck, Judge, speaking for the court, uses the following language:

,“In the exercise of such foresight would it have been foreseen that these conditions, inaccessible to persons not engaged in the dangerous occupation of maintaining the lines, might naturally lead to injury to those so engaged? The obvious and known purpose of guy wires is to give stability to the poles to which they are attached. The obvious and known purpose of the stirrups or steps with which this pole was supplied was to furnish the means of ascent and descent to those who were charged with maintaining the wires. * * * In view of the considerations actually presented, can it be said that the injury to the decedent was a consequence to be anticipated in the exercise of ordinary foresight?”

The court in that case very properly concluded that the injury could not reasonably be anticipated and therefore held the company was not liable; and tbe same result would doubtless be reached in the ease at bar, unless by the evidence it can be made to appear that it was common practice at and prior to the date of the fatal injury to the decedent, to use the guy wires in the manner claimed, and that the existence of such practice was known to the defendant company or should have been known by it in the exercise of ordinary care. It thus becomes -apparent that the existence of a general practice to use the guy wires in that manner was one of vital importance.

For the error in excluding evidence offered by the plaintiff on that subject, and for directing a verdict for the defendant, the judgment will be reversed and the cause remanded for a new trial.

Chittenden, J., concurs.

Kinkadb, J.

(dissenting).'

This judgment of reversal goes much further, of course, than deciding merely that the plaintiff had the right to introduce competent evidence along the lines stated in the foregoing opinion, The judgment entered here means that if on a re-trial the plaintiff produces competent evidence tending to show that the telephone company knew that its linemen were using the guy wires as the one described in this case was used, then the question whether the company did in fact know of such use, or by the exercise of ordinary care would have known of it, must be submitted to the jury; and in case the jury find, upon evidence sufficient to justify such finding, that the company is chargeable with knowledge of such user, then, as a matter of law, there arises out of that situation thus established a duty on the part of the telephone company to exercise ordinary care to construct and maintain all its guy wires so that they will be reasonably safe for use by linemen to sustain themselves while they are upon the pole, quite regardless of the fact that the guy wires were put there for a wholly different purpose.

To state the proposition as it will be applied to situations in general, I understand it to be this: that whenever an employer learns that his employees have abandoned the use of suitable and sufficient appliances furnished for their convenience in a given line of duty, and have voluntarily and wholly without suggestion or invitation so to do from the employer, adopted the practice of using other appliances and constructions found near at hand which were constructed by the employer for a wholly different purpose and with no thought or intention upon his part of making them suitable or sufficient for the other uses to which his employees have elected to subject them, then the employer, if he wishes to safeguard himself against claims for damages resulting from injuries occurring on account of the insufficiency in any particular of these appliances and constructions to sustain all the strains and demands of the new uses voluntarily put upon them by his employees, must positively forbid each of his employees to use the appliances for the purposes for which they were never intended, and stand ready at all times to establish in court, by a preponderance of evidence, that he did forbid such use, or he must pursue the only other course left, that is to say, he must forthwith undertake the task of making the appliances reasonably safe for the new uses to which his employees have elected to subject them; and if he fails to exercise the full measure of ordináry care in seeking to accomplish this, such failure will make him liable for all damages his employees may sustain by reason of injuries resulting from the insufficiency of such appliances to answer the necessities of the new uses imposed upon them.

Counsel for the plaintiff frankly and consistently contended in the trial below and in argument here, that he had the right to prove that it was the habit of linemen when upon the poles to use, for the purpose of sustaining themselves, anything found there, no matter' what, or for what primary purpose it had been placed there originally; that they might leave in the repair wagon the safety belts furnished by the company for use by the linemen in shchi cases and not use them at all, and that the same guaranty by the company of safety and sufficiency that would attend the use of the safety belts applied with equal force to every other appliance and construction found upon the poles or within the reach of the men when on the poles, when these latter were voluntarily substituted for the former by the employees.

Numerous illustrations might be put showing the impracticability, and, I might well say, the utter impossibility of keeping pace with any such varying and shifting duty, to say nothing of what seems to me to be the gross injustice in the claimed duty. The practical effect of the proposition, if sound, is to enable employees to say to their employer, in substances, about this:

“While it is true that when we entered your employ you had exercised ordinary care in every respect to make the place of our employment reasonably safe and the appliances with which we were expected to work reasonably safe for our use, nevertheless, we, of our own motion, and without any suggestion at all from you that.we should so do, elected to abandon the appliances which you furnished and substituted others not intended for like uses and we have been injured wholly by reason of this substitution and, therefore, you must respond to us in damages for those injuries because you knew of the substitution and you failed to make the appliances which we elected to use as substitutes for the ones you furnished equally as safe and sufficient as those you did furnish.”

In this case, had the company omitted to supply the linemen with safety belts, this omission would have been the first ground of negligence charged in the plaintiff’s petition, and one of the first things plaintiff’s counsel would have attempted to prove on the opening of the trial would have been the negligence of the company in not furnishing safety belts, and he would have sought to sustain this by proving that it was the custom of all other like companies to -equip their men with safety belts, so that when the men reached the top of a pole, or any point on the pole, where they had work to do, they could easily make their' positions there entirely safe by passing their safety belts around the pole, which would enable them to freely use both hands in doing their work instead of being obliged to hold on to the steps, the pole or the cross-arms with their hands.

A safety belt not furnished would have been described over and over again as a thing of the greatest importance, and the omission to furnish it would have been dwelt upon as complete proof of the heartless indifference and gross negligence of the company.

A safety belt that is furnished is quite a different affair. In fact, it is of little or no use and may be left in the repair wagon standing near the pole, particularly if, as in this case, it is the foreman’s safety belt that is so left in the wagon. Why is this? Manifestly, it is for the very simple, plain reason that the safety belt was furnished in this case; and had it been used for the purpose for which it was specially intended and was suitable, this accident would never have happened. The company not having been negligent in failing to furnish a good and sufficient safety belt, and the belt, though in the repair wagon and near at hand, not having been used, it became necessary to find some other act or omission of the company which constitutéd negligence, and hence the development of the theory manifest in this record. I can not think that the proposition of law presented by counsel for the plaintiff in error is sound. I see no ground upon which the plaintiff can recover in this action, even though the facts when established are found to be as favorable to the plaintiff as claimed in argument by plaintiff’s counsel. For the reasons stated, I think the judgment entered below in favor of the defendant in error should be affirmed.

On Application por Rehearing.

(June 7, 1915.)

Richards, J.

The original opinion in this case, announced on February 23, 1915, having been by a divided court, and the application for rehearing having been thoroughly argued in briefs filed by counsel, we have given a re-examination to the questions involved. Such re-examination has not resulted in any different conclusion than that which was heretofore announced.

A majority of the court are of opinion that evidence of a custom, usage, habit or practice of using the guy wire as an additional support to workmen, generally followed and known to the defendant, or practiced for such length of time that it should by ordinary care have been known to it before the fatal injury, is competent evidence in this case. We understand that there is a material difference between custom and usage, habit or practice. Usage, as has been, well said, does not imply immemorial existence or general prevalence as does custom. In the consideration of this case we have not used the words usage or habit or practice as meaning the same thing as custom. General custom may itself come to have the force and effect of law. In many eases evidence of usage or habit or practice may be admissible to show whether the defendant has been guilty of negligence or the plaintiff guilty of contributory negligence. A good illustration of this is found in a decision by the circuit court in Lucas county, entitled The L. S. & M. S. Ry. Co. v. Botefuhr, Administrator, 10 C.C.(N.S.), 281; 20 C. D., 67. That decision was concurred in by all the judges sitting, namely, Haynes, Parker and Taggart, JJ., and was affirmed by the Supreme Court, without report, 78 O. S., 413. The syllabus and the opinion in the case, considered together, show the varying uses of the words custom and habit. It was held in that case that evidence of the habit or custom of -the conductor representing the company was admissible not only upon the question of whether the company was in the exercise of ordinary care, but also upon the question of whether the deceased, being aware of the custom and of the habit of the conductor, was guilty of contributory negligence or exercised ordinary care. Parker, J., in the course of the opinion, uses this language-.

“The evidence in the case, we should say, is hardly sufficient to establish a custom having the force of law, and perhaps not one having the force of an established and promulgated rule binding upon all employees of the company, at all times and places. But we think it is quite sufficient to show this habit in the performance of the work upon the part of this conductor and this trainman when working together in the making up of that train.” * * *

The court say this on page 71:

“As to the admissibility of evidence of this character we think there can be no question. ’ ’

And the court cite the following earlier decisions of this court establishing that doctrine; Care v. Pierce, 10 C. D., 711, affirmed without report, 61 O. S., 578, Pennsylvania Co. v. Mahoney, 12 C. D., 366.

It is said in 12 Cyc., 1079, that, “What is negligence and what is due care may depend, upon the customs and habits of people in the same place and under similar circumstances.” We suppose it to be well established law that custom or usage can not excuse or justify a negligent act, but may be evidence on the question whether the act was negligent; or, to put the same thing in other phraseology, what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not. Of course, the ultimate question in this case was as to whether, under the issues made in the pleadings, the defendant was guilty of negligence, and the existence or non-existence of the claimed custom or practice was only material in so far as it bore on the question of whether it had or had not failed to exercise ordinary care.

In view of the failure to comply with the workmen’s compensation law, the question of the contributory negligence of the deceased may not be important, but the principle applies equally to the claimed negligence of the defendant company.

A majority of the court are of opinion that the application for a rehearing must be denied.

Chittenden, J., concurs.


author: Jones (Oliver B.), J.

text:
    LIABILITY OF A MUNICIPALITY FOR AN INJURY DUE TO ICE ON THE SIDEWALK.
    Court of Appeals for Hamilton County.
    Matilda Steinbeck v. The John Hauck Brewing Company.

    Decided, April 3, 1916.

      Municipal Corporations — Ordinance Providing Penalties for Failure on the Part of Abutting Owner to Remove Snow and Other Obstructions from Sidewalk — Can Not be Made the Basis of an Action Against an Abutting Owner — For Injury from Falling on a Sidewalk Covered with Ice.

    Allegations that the plaintiff fell and was injured on a sidewalk which was covered with ice and had a “steep descent” toward the next •street, do not state a cause of action against the owner of the abutting property, notwithstanding the existence of an .ordinance •providing that “whenever the sidewalk, or any part thereof, adjoining any building or lot of land or any street, shall be encumbered with ice, it shall be the duty of the owner or owners, occupant or occupants, or any person having the care of such building of lot, to cause such sidewalk to be made safe and convenient by removing the ice therefrom, or by covering the same with sand or some other suitable substance, and in case such owner or owners or other person shall neglect so to do, for the space of two hours during the day time [he or they] shall be liable to the penalty named in the following section.”

      Closs & Luebbert and Michael G. Heintz, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, contra..

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, October 10, 1916.

   Jones (Oliver B.), J.

Plaintiff seeks to recover damages for personal injuries received by her in a fall upon an icy sidewalk. The action is brought against the owner of the lot of land along which the sidewalk extends.

The material allegations of the amended petition under which defendant is sought to be held are as follows:

‘ ‘ That along the north side of said brick building and extending along East Twelfth street is a cement sidewalk, and that said sidewalk slopes eastwardly with a steep descent to said alley to the rear of the premises of the defendant, * # * #
‘ ‘ That prior to February 8, 1913, the city of Cincinnati by its board of council had duly passed an ordinance of the said city, providing for the removal of ice from the sidewalks by the owner of the building or lot of land adjoining such sidewalk, and that said ordinance was in force and binding on the date aforesaid. That said ordinance is as follows:
“ ‘Whenever the sidewalk, or any part thereof, adjoining any building or lot of land, or any street, shall be incumbered with ice, it shall be the duty of the owner or owners, occupant or occupants, or any person having the care of such building or lot, to cause such sidewalk to be made safe and convenient by removing the ice therefrom, or by covering the same with sand or some other suitable substance, and in case such owner or owners, or other person shall neglect so to do, for the space of two hours during the day time, shall be liable to the penalty named in the following section.’
“That the defendant company through its agents had been notified by the police authorities of the city of Cincinnati of the condition of said sidewalk, and had been notified to remove the ice therefrom, or to make the said sidewalk safe by covering the same with sand or with some other suitable substance, but that defendant company failed and refused to remove or cover said ice, but permitted said sidewalk to remain in the dangerous condition as aforesaid.
“That said sidewalk by reason of its being constructed with said steep descent and negligently and carelessly allowed by defendant to remain covered with ice and snow for a period of several days, was a dangerous nuisance and menace to persons using the same, and was the direct cause of the injuries inflicted upon this plaintiff as hereinafter set out.”

A demurrer to this amended petition was sustained, and judgment was entered for defendant.

This proceeding in error is brought seeking the reversal of that judgment.

It will be observed that there is no allegation of any structural defect in the sidewalk or that defendant in any way caused or contributed to the_ bringing of the ice or snow upon it. True, something is said of a steep slope, but it is not alleged that the construction is in any way improper or out of conformity with that of the street, or that the defendant was at all responsible for such slope or descent, which is determined by the city.

If the action had been brought against the owner of adjoining property, it would be substantially the same as Chase v. City of Cleveland, 44 O. S., 505, where a demurrer to the petition was sustained. The same question was.again considered in Norwalk v. Tuttle, 73 O. S., 242, where it was also held that there was no cause of action and a demurrer to the petition should have been sustained. There would be no liability to plaintiff here on the part of the city, on whom is cast the duty of keeping the street and sidewalk in repair and free from nuisance (G. C., 3714). And as no such duty rests upon the property owner in favor of a passer-by, there is all the more reason why he would not be liable.

It is contended, however, that because of the city ordinance, it became the duty of the property- owner either, to remove the snow and ice or to cover same with sand, and that when such duty is not performed, á liability would arise in favor of one who might be injured.

The early case of Van Dyke v. City of Cincinnati, 1 Disney, 532, fully discusses and disposes of this contention. This is a decision of the superior court in special term, but the opinion of Judge Spencer is so clear and convincing that it has been widely cited and approved as an authority. '

The ordinance quoted and relied upon by plaintiff, if not identical, is entirely similar to that relied upon in the Van Dyke case, having been continued on the books under the different codifications of ordinances. No question was raised as to the validity of the ordinance.

Counsel for plaintiff undertake to avoid the force of the decision in the Van Dyke ease by suggesting that the 'council had not legislative authority at that time for the enactment of the ordinance under consideration in. the Van Dyke case, while now express authority for the ordinance in its present form is found in Section 3853, General Code:

‘ ‘ The councils of municipal corporations may provide by ordinance for the construction and repair of necessary sidewalks, curbing, or gutters, or parts thereof, within the limits of the corporation, and may require by imposition of suitable penalties or otherwise, the owners and occupants of abutting lots and lands to keep the sidewalks, curbing and gutters in repair, free from snow or any nuisance.”

It might be noticed' that, if it is necessary to be technical as to the authority conferred, the word “ice” does not appear in the section; but we do not regard this of importance, as there is no question of the power of council to enact the ordinance in its present form. This ordinance provides a penalty for noncompliance, and does not in any way undertake to fix any further liability upon the property owner. There is no doubt that a compliance with the ordinance can be required by enforcing the penalty provided, but no provision is made or attempted to create a liability for any damages that might possibly be occasioned because of such non-enforcement.

It has been held in Wilhelm v. City of Defiance, 58 O. S., 56, where a judgment had been recovered against the city by reason of a defective sidewalk,' that the owner of property can not be required to indemnify the city for damages even though he had been notified by it to repair such sidewalk and had failed to do so. The city had the power construct the walk and collect the cost from the. property owner.

The law is well settled that the abutting owner is only liable where he has by some act of commission created the nuisance which caused the injury. Morris v. Woodburn, 57 O. S., 330; Rochester v. Campbell, 123 N. Y., 405.

In 4 Dillon on Municipal Corporations, Section 1697, the duty of a city in regard to ice and snow in the streets and on the sidewalks is stated, and numerous cases are cited:

“* * * the mere slipperiness of a sidewalk occasioned by ice or snow not being accumulated so as to constitute an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby.
‘ ‘ The owner or occupant of the building is not liable, in such eases, to the person injured on the sidewalk in front thereof from natural accumulations of snow or ice.”

Among the cases supporting this doctrine may be cited: Kirby v. Boylston Market Assn., 80 Mass., 240; Fuchs v. Schmidt, 8 Daly (N. Y.), 317; Connolly v. Bursch, 134 N. Y. Supp., 141; Dahlin v. Walsh, 192 Mass., 163; City of Hartford v. Talcott, 48 Conn., 525; City of St. Louis v. Conn. Mut. L. I. Co., 107 Mo., 92; Flynn v. Canton Co., 40 Md., 312; Taylor v. Ky. Co., 45 Mich., 74; Bloom v. Toledo, 2 C.C.(N.S-), 108.

Counsel for plaintiff in error contend, however, that two recent eases in the Supreme Court of Ohio, Variety Iron & Steel Co. v. Poak, 89 O. S., 297, and Schell v. Dubois, Admr., decided February 29, 1916, have in some way changed the rules heretofore announced. In these cases negligence per se was found to exist by the court. In the first case a machine was used with a set screw protruding in such a way as to cause the injury, being directly contrary to the statute. In the last ease, the excessive speed at which the automobile was driven past the car discharging passengers, in direct violation of the ordinance, was the immediate and proximate cause of the injury. These were, in both cases, acts of commission, where the injury was the direct result of plaintiff’s positive act.

In the instant case defendant, to quote the language of the court in Heeney v. Sprague, 11 R. I., 456, at 461, “has not done anything injurious to others which-it was forbidden to do; it has simply left undone something beneficial to others which it was required to do under a penalty in ease of default. The thing required was not obligatory upon it at common law. It was a duty, newly created by ordinance, it might have omitted with entire impunity.”

The case of Griswold v. Camp, 149 Wis., 399, is almost identical with the instant case, the ordinance provision being practieally the same, and in that case counsel relied upon the doctrine that: “failure to obey a statute designed to conserve human safety, is negligence per se. That is not of universal application. It depends upon the presumed legislative intent. In all cases where the doctrine has been applied there was a manifest purpose to create the liability or make a rule of evidence as to an existing duty. There the ordinance dealt with a situation, where, by statute, the municipality was in duty bound to keep the sidewalks in a reasonably safe condition for public travel, and persons doing work contemplated on premises adjacent to the street, were in duty bound to conduct their operations with ordinary care for the safety of persons lawfully using the walk. The ordinance required the party responsible for the work on adjacent property to aid the city in performing its duty and to do the particular thing as essential to ordinary care on his part. The ordinance did not create any liability; that existed independently of any legislation. All the ordinance did was to regulate the performance of an existing duty. Courts have not gone so far as to construe any such ordinance as that in question as creating a liability such as the one claimed.”

We find nothing in the Poak or Schell cases that would in any way require or authorize a change in the law in Ohio as to icy sidewalks as heretofore announced.

The petition in this case fails to state a cause of action.

Judgment affirmed.

Jones (E. H.), P. J., and Gorman, J., concur.


author: Ansberry, J.

text:
    AS TO WHETHER AN ATTEMPTED CHANGE OF BENEFICIARY WAS EFFECTUAL.
    Court of Appeals for Wyandot County.
    Martha Kerr v. Margaret Bowers et al.

    Decided, March 23, 1915.

      Interpleader — Life Insurance Contracts — Change of Beneficiary— Waiver.

    1. Section 11265, General Code, is auxiliary to and not destructive of, the equitable remedy of interpleader. Hence, the custodian of a fund who claims -no interest therein, not knowing to which of two or more persons, making claim thereto, under different titles he should pay the same, may file a petition in the nature of a bill of interpleader making such persons' parties thereto, pay the money into court and have adjudicated the rights of said claimants thereto.
    2. Where, in a policy of insurance the right to change the beneficiary is reserved to the insured, the beneficiary named therein has no vested interest in such policy until the death of the insured and such insured may, during his lifetime, designate another beneficiary at will. Hence, where such insured has, in the form and manner prescribed by such policy, executed and forwarded, together with the policy, to the company’s home office, the instrument required to effect such change, but dies before such instrument reaches said company, and thereafter the company files a bill of interpleader and, making the rival claimants parties thereto, pays the money into court, such change of beneficiary is effectual, even though the company did not endorse the change of beneficiary upon the policy as provided therein, such provision being for the benefit of the company, is thereby waived.

      Finley & Gallinger, for plaintiff in error.

      D. G. Parker and W. B. Hare contra.

      Motion for an order directing the Court of Appeals to certify its record in this case overruled, May 18, 1915,

   Ansberry, J.

This ease was commenced by the New York Life Insurance Company filing a bill of interpleader in the Court of Common Pleas of Wyandot County, Ohio, in which Martha Kerr and Margaret Bowers were named as defendants, which, set forth in substance that said company, on the 26th day of February, 1901, entered into a contract of insurance with Robert E. Kerr, under, the terms of which said company undertook and did insure the life of said Robert E. Kerr by the issuance of policy No. 3,124,789, and thereby agreed to pay $2,000 to Martha Kerr, wife of said insured, “or to such other beneficiary as may have been duly designated, on receipt of satisfactory proofs of the death of said Robert E. Kerr.”

Said policy further provided:

‘ ‘ The insured may, at any time during the continuance of this policy, provided the policy is not then assigned, change the beneficiary or beneficiaries by written notice to the company, at its home office, accompanied by this policy; such change shall take effect on the endorsement of the same upon the policy by the company.”

The company further alleges that on the 16th day of April, 1912, said Robert E. Kerr died. Satisfactory proofs of death were furnished, and by reason thereof said company became bound to pay the sum of $2,081.23, the amount due on said policy, but that said company was prevented from paying said sum for the reason that on the 18th day of April, 1912, said company received at its home office an instrument in writing in the words and figures following:

“Kerr Brothers. Midlers and Dealers in Flour,
“Corn Meal, Mill Feed, etc.
“Upper Sandusky, Ohio, April 15, 1912.
“New York Life Insurance Company,
“346 Broadway, New York, N. Y.
‘ ‘ Gentlemen:
“I herewith assign New York Life Insurance policy No. 3,124,-789, issued to me March 4, 1901, to Mrs. H. W. Bowers, Upper Sandusky, Ohio, my sister, as beneficiary of said policy instead of Martha Kerr.
“Policy for $2,000 enclosed herewith for change.
‘ ‘ Witness: “ Yours, very truly,
‘ ‘ Jane Kerr. (his)
“Thos. C. Kerr. Robert X E. Kerr.
“G. W. Sampson. (mark.)
“J. H. Kerr.”

On the 27th day of April, 1912, Margaret Bowers notified said company that by reason of said instrument she claimed the said sum of $2,081.23, and demanded payment therefor. That said Miartha Kerr, wife of said Robert E. Kerr, disputes said claim and demands payment of said sum to her as beneficiary named in said policy.

The other formal allegations are such as are required in a bill of this character, and made, on behalf of the company, a case entitling the company to the relief asked, which was that said company be permitted to pay the money into court for its determination as to who should receive said sum.

That thereafter Martha Kerr and Margaret Bowers filed their respective cross-petitions in this action, and from the pleadings, the evidence and the admission of parties, the facts are found, briefly stated, to be that Robert E. Kerr separated from his wife, Martha Kerr, in April, 1906, and thereafter made his home at the family homestead with his mother, an aged lady, several brothers, and his sister, Margaret Bowers, cross-petitioner herein. That said Margaret Bowers had charge of the household; that said Robert E. Kerr, for a long period of time before his death, was afflicted with varicose veins and required a great deal of nursing and attention; that this attention was given to him by his sister, Margaret Bowers, and that a few days before his death'he advised his relatives that it was his intention to compensate his said sister for her sacrifices and the services she had rendered him by assigning to her his policy of insurance in the New York Life Insurance Company. And that after-wards, to-wit, on the 15th day of April, 1912,. he requested one of his brothers to go to his office safe and bring therefrom the said policy of insurance; and when it was brought to him, he gave the same to Margaret Bowers, and then executed the written instrument hereinbefore referred to and set forth, and caused the same, together with the policy, to be deposited in the mail, addressed to the Newr York Life Insurance Company, at its home office in New York City. Said Robert E. Kerr died the following day, to-wit, June 16th, 1912, and before the policy and written instrument making change of beneficiary reached said company. The company did not endorse this change of beneficiary upon the policy.

The court below found for and rendered judgment for Margaret Bowers.

Within three days thereafter, Martha Kerr filed her motion for new trial, which was overruled.

Thereafter she filed her petition in error in this court, averring a number of errors of the trial court, and praying a reversal of its judgment, and that this court render a judgment in favor of said plaintiff in error, Martha Kerr.

The question in this case is, whether or not the change of beneficiary atfempted on the 15th day of April, 1912, through the instrumentality chosen by said Robert E. Kerr, was effective. However, before reaching this pivotal question in the case, several other points raised by counsel must be disposed of.

At the outset, objection was made by counsel on behalf of Martha Kerr to the introduction of any evidence in the case, which objection was overruled, and to which the defendant thereupon excepted.

Mrs. Bowers was required to elect whether she made claim for the amount of the policy by virtue of a gift and as a beneficiary thereunder, or by virtue of an assignment to her for a valuable consideration. She elected to claim under the assignment.

The objection to the introduction of any testimony, as it after-wards transpired, was on the ground that the filing of the bill of interpleader .herein was without authority of law.

We think that no error was committed in overruling this objection for the reason that even though Section 11265 of the General Code does not furnish authority for this action, we are of the opinion that equity would take cognizance of such a proceeding. And we are supported in this contention by the case of Mill Company v. Accident and Guaranty Company, 11 C.C. (N.S.), 443, which holds that interpleader was recognized in courts of equity prior to the amendment of the statute. And the case of Bank v. Beebe, 62 O. S., 41, which holds that this section was intended as an auxiliary to the practice in chancery respecting interpleader.

Pomeroy’s Equity Jurisprudence, Sections 1320 to 1329, in? elusive, describes the general equitable jurisdiction to grant the remedy of interpleader independent of statute.

Counsel on behalf of Martha Kerr also raise the question of estoppel and argue it at some length both orally and in their brief, claiming that Mrs. Bowers is estopped from prosecuting this action for the reason that heretofore she presented a claim to the administrator of the estate of Robert E. Kerr for services for nursing and earing for him. Said claim having been rejected, she brought suit in the Court of Common Pleas of Wyandot County against said administrator, which suit is pending; and that her claim for services in nursing and caring for decedent, sued for in said action, is the identical one which she says was discharged and satisfied by the assignment of the policy of insurance,- the subject-matter of this controversy.

We fail to see wherein M!artha Kerr was adversely affected thereby, and hence hold that Margaret Bowers is not estopped, because of said action, from prosecuting her rights under this policy.

Coming, then, to the determining question in this controversy, we find a sharp conflict of the authorities and text-writers on this question, or, rather, on some phases of this question.

It is universally agreed by the text-writers and courts that the insured, under a contract of insurance with an old-line company, may change the beneficiary at will, where such right is reserved in the contract and not prohibited by statute.

In Elliott on Contracts, Section 4355, we find this text:

‘ ‘ The contract may reserve to the insured the right to change the beneficiary at will, and when this is done the original beneficiary acquires no vested interest in the policy or its proceeds, and until after the death of the insured he has a mere expectancy. This right to change the beneficiary may be reserved in the policy. * * *
“In ordinary life policies the beneficiary takes a vested interest the moment the policy is issued, and the insured can not change the beneficiary unless the express power to do so is reserved. It is equally well settled that when the right to change the beneficiary is reserved * * * the beneficiary named acquires no vested interest until the death of the insured, and prior to that time the insured may change the beneficiary at win.”

In the policy, the subject-matter of this suit,- the insured expressly reserved the right to change the beneficiary, and did all in his power to effect this change when he executed and delivered the so-called assignment above referred to and set forth.

The case of John Hancock Mutual Life Insurance Company v. White el al, decided by the Supreme Court of Rhode Island and reported in the 40 Atlantic Reporter, page 5, holds:

“First. The provisions of a life insurance policy which permits a change of beneficiaries only with consent of the company is.for the benefit of such company; and where it waives such condition, or is estopped from pleading it, and the assured did everything in her power to make a change before her death, although the company did not consent thereto, the substituted beneficiary is entitled to the amount of the policy.”
‘ ‘ Second. Where the insurance company files a bill of inter-pleader offering to pay the amount of the life insurance policy into court, it will be considered to have waived its right to object to a change of beneficiaries on the ground that it did not consent thereto.”

It is contended on behalf of Martha Kerr that this attempted change of beneficiary was ineffectual for the reason that the policy contained the further proviso, ,

“That such change was to take effect on the endorsement of the same upon the policy by the company.”

And in support of this contention cited the case of Fruend et al v. Fruend, reported in the 75 N. E., page 925, by the Supreme Court of Illinois, which court holds:

“A New York statute (Laws 1892, p. 2015, c690, Section 211) requiring the consent of the insurance company to a change of beneficiary by insured becomes a part of a New York policy issued while such statute is in force, and is controlling on the subject covered thereby although the policy is silent concerning the same.
‘ ‘ Where an insurance policy provides that no change in beneficiary shall take effect until endorsed on the policy by the company at its home office, a change in the beneficiary can not be accomplished until the prescribed conditions are fulfilled.”
‘ ‘ The rights of a beneficiary in a life insurance policy become fixed at the death of insured and are not affected by a contemplated change of beneficiary which insured had intended to make, but which had not been effected in accordance with the statute .and terms of the policy at the time of his death.
“An insurance company can not, after the death of insured and the consequent vesting of the rights of the beneficiary, waive, as against the beneficiary, provisions of the policy relative to change, of beneficiary.
“The act of an insurance company in filing a bill of inter-pleader and paying the proceeds of the policy into court, can hot be urged by either of the claimants as against the other as a waiver by the company of non-compliance by insured with provisions of the policy for changing the beneficiary.”

The facts in this case are very similar to the facts in the case at bar. Judge Magruder, in deciding it, pointed out that the laws of New York under which, as he said, the contract of insurance was made, were introduced in evidence. Particularly Section 211, which reads as follows:

“Membership in any such corporation, association or society shall give to any member thereof the right at any time, with the consent of such corporation, association or society, to make a change in his payee or payees, or beneficiary or beneficiaries, without requiring the consent of such payee or beneficiaries.”
“This provision of the New York statute, which is admitted to have been in force in New York when the policy here in question was issued, became a part of the contract embodied in the policy by implication, with the same effect as if it had been embodied in the policy itself.”

It is further said:

“All stipulations of the policy must yield to the statute, and in view of the fact that the provisions of the New York statute thus quoted is, by implication, a part of the policy or contract, this policy is to be regarded as one which requires the consent of the company to the change, the same as though the provisions of the statute were written into the policy itself.”

In the case at bar the statute of the state of New York was neither pleaded nor offered in evidence and, of course, under the authorities this court could not consider the statutes of a sister state unless they were both pleaded and proven. If this statute was a determining factor in the n^ind of the judge rendering the opinion in the Fruend case, to that extent it would be weakened as an authority in this case.

In the Rhode Island ease, the insured sought to have the beneficiary changed in his policy, and through some inadvertance on the part of the company, or one of its agents, the beneficiary slip executed by the insured was mislaid, and before it had been found and the company had time to act upon it, the insured died, and the administrator of his estate, to whom the policy was first made payable, and Mrs. Dyer, in whose favor the beneficiary slip was executed, both claimed to be entitled to the insurance fund.

In that case the court said:

“We think Mrs. Dyer is entitled to the fund. The insured had done everything that was necessary on her part to change the beneficiary of the policy. The provision for the consent of the company to the change was solely for its protection, and, therefore, one on which it alone can insist. By filing its bill that the respondents interplead, and thereby offering to pay .the fund as the court shall determine, it has waived its right to say that it did not consent, and no one else can urge the lack of its consent in its name.”

This doctrine of waiver has been applied to contracts simila.r to the one under consideration in proceedings of this character by our Supreme Court in the ease of Keckley v. Glass Company, reported in Volume 86 O. S., page 213, for, in its third syllabus, it says:

“Where a life insurance company makes no defense and pays the amount of its policy into court to abide the judgment of the court as between conflicting claimants, parties claiming an interest in the fund will not be allowed to object to the beneficiary named in the policy had no insurable interest. ’ ’

It may be argued that the question of lack of insurable interest presents a different principle than the question of change of beneficiary, still there is no doubt that the court in the Glass Company case took the same view of the action of the insurance company in filing a bill of interpleader as was taken by the Supreme Court of Rhode Island in the case referred to.

The doctrine announced by the Supreme Court of Rhode Island in the Dyer case, and by the Supreme Court of Illinois in the Fruend case, cited by counsel for Martha Kerr, are diametrically opposed to one another, but we are of the opinion that the sounder doctrine is announced.in the Rhode Island decision. The trend of authority in the older states of the Union, where insurance and insurance law had their inception in this country, is in support of this doctrine.

Counsel for Mrs. Bowers cite the case of Anna Herold v. Pacific Mutual Life Insurance Company, reported in the 17 C.C. (N. S.), page 20.

In that case the insurance company filed a bill of interpleader so that the lawful beneficiary of a life insurance policy might be determined by the court as between two rival claimants. The amount due on the policy was paid into the court, as in this ease.

The facts, briefly stated, were that ITerold had a policy of insurance on his life and Anna ITerold, his wife, was named as beneficiary. ITe sought to substitute his mother as beneficiary as trustee for his children in place of his wife. To consummate this change, in accordance with the provisions of the policy, an endorsement thereon by the company was necessary. The insured died pending the correspondence between himself and the insurance company with respect to this change, and the endorsement was never made. A judgment was obtained in favor of the mother as trustee in the trial court. Error was prosecuted to the circuit court. The circuit court held that the beneficiary did all that was within his power to do to change the beneficiary, and affirmed the judgment of the lower court.

We reach the same conclusion with reference to this ease as did the court in the case just referred to, but on the grounds set forth in the case of John Hancock Mutual Life Insurance Company v. White et al, 40 Atlantic, page 5, and the ease of Keckley et al v. Glass Company, 86 O. S., page 213.

It follows that the judgment of the court of common pleas must be affirmed.

Crow, J., and Kinder, J., concur.


author: 'Jones (E. H.), P. J.

text:
    ISSUE AS TO WHETHER. INJURED BOY WAS A TRESPASSER.
    Court of Appeals for Hamilton County.
    The Cincinnati Union Bethel v. John Edward Bryson Schy, a Minor Thirteen Years of Age, et al.
    Decided, December 6, 1915.

      Fire Escape Falls and Injures Boy — Defense by Occupant of the Property that the Boy Was Meddling — Accuracy of Statement Required in Instructing a Jury Where the Issues Are Close and the Testimony Nearly Equally Balanced.

    1. While in some instances irrelevant matter may be incorporated into a charge to the jury without prejudice, such is not the case where the evidence is close and the issues such that the parties are entitled to have the law applicable thereto stated without ambiguity or confusion with extraneous matter.
    2. A charge which limits the jury to consideration of the evidence offered by one side only as to a certain issue, is erroneous. and clearly prejudicial, as is also the statement that “if you find from a preponderance of the defendant’s evidence” that the plaintiff did so and so, “then he can not recover.”

      Fulton & Woost, for plaintiff in error.

      George J. Slaline and Matthews & Matthews,'contra.
   'Jones (E. H.), P. J.

This action was brought in the court below by Bryson Schy, a minor, against the Cincinnati Union Bethel, for damages caused by the falling of a portion of the fire escape on a building known as the Anna Louise Inn, which building was occupied by and under the control, at the time of the accident, of the Cincinnati Union Bethel, the plantiff in error in this court. There was a verdict for $1,500 in favor of the plaintiff, and upon a motion for new trial this was held to be excessive by the trial judge and was reduced to $1,200, for which sum the judgment was entered.

This proceeding in error is for the reversal of this judgment, and we find upon an examination of the record and the charge of the court, that the judgment should be reversed for error in the charge. In order to understand our action it will be necessary to point out briefly the issue in the case.

The fire escape was constructed- alongside of and attached to the building, and extended over the sidewalk. The lower section of the fire escape was held in a horizontal position by means of a wire rope to which was attached a weight. This portion of the fire escape was attached to the main fire escape by a joint, or hinge, at one end, and it was so balanced by said weight and wire rope that when occasion would arise to use the fire escape, those using the same, by stepping upon said suspended portion, would cause the same to gradually lower until the detached or unfastened end thereof would strike the sidewalk, thus permitting the person or persons using the same to reach the ground.

It is claimed that while passing along the sidewalk in company with two other boys, without any fault on their part this rope broke and thereby caused the fire escape, or said portion thereof so suspended, to fall and strike said Bryson Schy upon the head, inflicting a painful and serious injury.

The answer alleges that—

""Whatever injuries the plaintiff received, and of which he complains in this action,were received while trespassing upon the said fire escape and under and about the same, and directly in consequence of his illegal acts and trespasses in and upon the said building, and the illegal acts and trespasses of other boys then and there trespassing upon the said building, in which acts and trespasses the said Bryson Schy was then and there participating, and without any knowledge thereof on 1he part of the said defendant, and its officers, agents, or employes, and were wholly caused by said plaintiff thereby.1 ’

The iron fire escape had fallen, by reason of a defect in the rope, or some defect in its construction, or through the carelessness or mischievous conduct of "the plaintiff and his associates in playing upon said fire escape, or in pulling down the same. The evidence upon this issue is conflicting. The plaintiff and one of his companions testify that they were doing nothing at the time except walking along the street, and that the fall of the fire escape was sudden and wholly unexpected. They attempt to explain this rather unaccountable fall by showing that a strong wind was blowing at the time. The third boy testified that he attended the same school as the other two boys, and that he on the night of the accident was going with them to the Bethel; that they found a stick in the alley east of the Anna Louise Inn; that the boys had it in their hands and stuck it up against the fire escape; it was about six feet long and had a nail or hook on the end of it. He said, “both of them got hold of it when they pulled it down.” Mrs. Ethel King testified that she had seen the boys with a long stick near the scene of the accident.

We will not quote further from the evidence, but we are free to say from an examination of the entire evidence that we have great doubt that the verdict of the jury is supported by sufficient evidence, and are strongly inclined to the opinion that the jury’s verdict was against the wreight of the evidence. But we prefer to place the reversal of the judgment below upon the ground that the court erred in its charge to the jury, as before stated.

On page 148 of the bill of exceptions, the court charged the jury as follows:

“The plaintiff, Bryson Schy, as have all other citizens, had a perfect right to-walk along the sidewalk at that place, and he would have a right to march along with a stick on his shoulder, provided he injured no person with it, or did not pull down such fire escape upon him.”

Now there was really no question raised by the pleadings or the evidence in the case as to the right of Bryson Schy, or other citizens, to walk along the street “with a stick on his shoulder.” The only complaint against Schy is that he and his companions were trespassing upon the property (fire escape) of the defendant and while so trespassing they carried a long stick; neither was there any charge that he had injured any person with the stick. The court cannot see the purpose of this language in the charge; it evidently had no function to fulfill. True it is that irrelevant matter may be inserted harmlessly in a charge, but in a olese case upon the facts such as this was, the parties are entitled to have a clear and unambiguous charge stating the law applicable to the issues, the evidence and the facts to be determined by the jury. The inference to be drawn from this language of the court is that there was some issue as to the right of these -boys to carry a stick along the street, which was not the case.

But we think this paragraph above quoted is followed immediately on the same page by language exceedingly prejudicial to the defendant, and more clearly erronéuos. We quote:

“If you find by a preponderance of the defendant’s evidence that Bryson used a stick and pulled this fire escape down, and that was the proximate cause of his injuries, he cannot recover. But, on the other hand, if you find from that evidence that while Bryson was walking along the street with his companions, this fire escape fell and he was injured, he can recover, and it will be your duty to return a verdict for the plantiff.”

In determining whether or not a stick was used the jury were not limited to the evidence of the defendant, as stated by the court in this portion of the charge. Furthermore, the plaintiff was required to make out his case by a preponderance of the evidence, and it wás not incumbent upon the defendant to . furnish a preponderance of the evidence that the stick was used. It may well be that some of the evidence offered on behalf of the plaintiff would be taken by the jury in determining that fact, or the plantiffs evidence may have raised some presumption of negligence on his own part. In any event, limitation in this portion of the charge to the defendant’s evidence, and especially the requirement that the defendant furnish a preponderance of evidence to support its defense, was erroneous and clearly prejudicial to the rights of the defendant in the case. It will be noted that the trial judge carries that same error into the next sentence when he says:

“But, on the other hand, if you find from that evidence” (which means defendant’s evidence) “that while Bryson was walking along the street with his companions, this fire escape fell and he was injured, he can recover,” etc.

This last sentence is prejudicial in two reespeets: first, as already indicated, in the use of the words ‘ ‘ that evidence ’ ’ thus placing the burden upon the defendant and excluding any benefit that might be derived from the plaintiff’s evidence; second, the language used is a statement of the doctrine of res ipsa loquitur, which no doubt applies in this case, but as in ail eases this language should have been qualified by a charge to the effect that if the defect which caused the fire escape to fall was undiscoverable in the exercise of ordinary care or was one which a reasonably prudent person would not have seen or observed, then the plantiff should not recover. We think the act of the trial judge in stopping with this strong statement in favor of the plantiff without the necessary modification above referred to was clearly erroneous and prejudicial. .

It is true that counsel for defendant, after the charge was concluded, requested an instruction from the court covering the above criticism, and the court said:

“I will say to you, gentlemen of the jury, that where a corporation or a person builds a fire escape over the sidewalk, and if in the exercise of that care which prudent persons under those circumstances, where the public are continually passing underneath it, by the use of ordinary care in the examination of it would not discover any latent defect in it, and there was such latent defect, which they could not discover- by the use of ordinary care, which caused it to break and caused the injury, then of course the plaintiff cannot recover.”

What the court here says should have followed, in more concise language, the paragraph before quoted. At the time this was given to the jury the general charge had been completed, and counsel for the defense made the request for this instruction when asked by the court for suggestions.

In view of the conflicting evidence in this case and the doubt as to which side has the weight thereof, we hold that the error of the court in stating to the jury that if while B-ryson was walking along the street the fire escape fell and he was injured he can recover, without any explanation of conditions immediately given or stated in the same connection, was prejudieial and influenced the jury in arriving at the verdict in this case.

Judgment below will therefore be reversed for errors in the charge, as above pointed out.

Jones (Oliver B.), J., and Gorman, J., concur.


author: Jones (E. H.), P. J.

text:
    ERROR. IN ALLOWING A FEE FOR AN ACTION NOT YET BROUGHT.
    Court of Appeals for Hamilton County.
    William Bahmann and E. J. Harth v. Charles S. Druggan, Receiver of the Ohio Auto Accessory Company; two cases.

    Decided, June 19, 1916.

      Corporations — Action for Unpaid Subscriptions for Stoolc — Allowance to Counsel for Services in a Future Action.

    A court is without power to include in a judgment finding the liability of stockholders an estimated fee for attorneys in a future action to enforce stockholders' liability or collect unpaid subscriptions to the capital stock.

      Oscar ~W. Kuhn and Ireton & Schoenle, for plaintiff in error.

      8. A. Headley, C. 8. Druggan and J. F. Atwood, contra.

      Motion to require the Court of Appeals to certify its record iu this case PlSHfe by the Supreme Court, October 24, 1916. allowed

   Jones (E. H.), P. J.

Much of the brief of counsel for plaintiffs in error is devoted to an attempt to show that these proceedings, brought to collect •unpaid subscriptions to the capital stock of a corporation, are barred by Section 8688, General Code, which provides:

“An action upon the liability of stockholders under the two next preceding sections can only be brought within eighteen months after the debt or obligation shall become enforcible against stockholders. ’ ’

As pointed ont in the brief of defendant in error, this question has been decided very recently by our Supreme Court in the ease of Bauman v. Kiskadden, Trustee, 94 Ohio State, — . The syllabus of the case is so directly in point as to leave nothing for this court to consider upon the question here presented, and we must hold that these actions were brought within time and are not barred.

The Common Pleas Court of Franklin County allowed the receiver $350 for compensation and expenses including attorney’s fees. The assets of the defunct corporation coming into the receiver’s hands amounted to only $75. The court must have considered the costs and expenses of these proceedings, not at the time commenced, in fixing the fees. The cost and expenses of bringing the $75 into court was a proper charge against the delinquent stockholders. But we doubt the power of the court to include in the judgment, finding the liability of the stockholders, an estimated fee for attorneys in a future action to enforce the stockholders’ liability or collect unpaid subscriptions. The allowance made was nearly five times the amount of the assets in the hands of the receiver, so that it is evident that the court considered the services of the attorneys in this proceeding when fixing the allowance.

For a discussion of this question, see Buist v. Williams, 81 S. C., 495, at page 499.

But this is aside from the record before us. We have no power to interfere with the judgment of the Franklin county court in the receivership case and for that obvious reason are not asked to do so by the pleadings.

We find no, error in the proceedings under review, and the judgments are affirmed.

Jones (Oliver B.), J., and Gorman, J., concur.