text:
    DISMISSAL FOR. FAILURE TO AMEND PLEADING.
    [Circuit Court of Huron County.]
    Michael Egan v. New York, Chicago & St. Louis Railway.
    Decided, October, 1904.

      Pleading — Refusal to Amend Petition — Ground for Dismissal — Averment. as to Proximate Cause Insufficient — Petition Demurrable for Want of Certain Averments, When — Final Order — Negligence —No Presumption of, from Mere Happening of the Accident.

    1. A refusal to amend a petition upon the order of court is ground for dismissal of the suit, which may be either for disobedience of the order, or for failure to prosecute the action. Such an order of dismissal is reviewable on error.
    2. An averment that a certain thing was the proximate cause of the injury is not sufficient. The pleading must disclose the facts which constitute the proximate cause. Where these relate to defective tools or appliances, the allegation as to the defects must be distinctly and definitely alleged; and where the fault was that of the master in directing or making it necessary for the employe to follow an unsafe or improper method of work, the respect in which it was unsafe must be alleged with clearness. A court can not infer that appliances were unsafe or that the master was at fault from the mere happening of the accident.
    3. Where a petition discloses that the. proximate cause of the injury was some fault in the immediate tools used or methods of work employed by plaintiff, but there is no express allegation to the effect that the defendant was at fault in furnishing tools that were improper or unsafe, or in directing plaintiff to proceed by a method that was improper or unsafe, or that plaintiff did not know of the defect, fault and dangers, or that being informed he was excused because of the promise of his employer to remedy the defects or cure the faults, it is in such case demurrable.
    Parker, J.; Hale, J., and Marvin, J., concur (Judges Hale and Marvin sitting in place of Judges Hull and Haynes).
    Heard on error.
   This is a proceeding in error brought to obtain a reversal of the judgment of the court of common pleas of this county.

Michael Egan brought his action against the railroad company to recover damages which he claims he sustained through the negligence of the company in furnishing him with improper and unsafe appliances with which to do his work.

An answer was filed to his petition, and a reply to the answer. A jury having been impanneled, the case proceeded to trial. Objection was made by the defendant to the introduction of any evidence under the petition upon the ground that it was fatally defective in not stating facts constituting a cause of action.

Counsel for plaintiff, when his attention was called to the alleged defect, seems to have conceded that the petition was defective in the particular pointed out, and he took leave to amend, and filed his amended petition.

To that amended petition the defendant filed a motion requiring that it be made definite and eértain in certain particulars. The .court sustained the motion, and by its order required the plaintiff to amend accordingly. The plaintiff declined to make any further amendment and stood upon the petition as it was, believing that it was sufficient and that the order of the court requiring the amendment was not well grounded, and upon plaintiff declining to make amendment, the court dismissed his action.

This action of the court, assuming that .the court was right in ordering the amendment, we think was entirely proper. We think the refusal of the plaintiff to amend, as required by the court, amounted to a neglect upon the part of the plaintiff to prosecute his action, and that the court thereafter might have dismissed the action of plaintiff under Section 5313, Revised Statutes. Also that it amounted to a disobedience by the plaintiff to the order concerning the proceedings, and that, therefore, the court was warranted in dismissing his action under the fifth clause of Section 5314, Revised Statutes.

It has been intimated that perhaps this action of the court may not be reviewable by a proceeding in error,- but we are of the opinion that this order dismissing the action and adjudging the costs against the plaintiff, although the action was dismissed without prejudice, was such a final order under the statute upon the subject of proceedings in error as is reviewable on> error.

The ease of Evans v. Iles, 7 Ohio St., 233, is a ease in point. I read from the third clause of the syllabus:

“An order of a court of common pleas that a case be stricken from its docket for want of service, and for the payment of costs, is not a final judgment from which an appeal lies to the district court (see Section 370, Code; Section 5310, Revised Statutes), but is a final order, for error in which a petition in error is the proper remedy” (see Section 512, Code; Section 6707, Revised Statutes).

I judge from some notations I find in Whittaker’s Annotated Civil Code that there are some holdings of the circuit courts in the state more directly in point. We feel entirely satisfied, however, that the action of the court may be reviewed by this form of proceeding, and therefore we come to the consideration of the question whether or' not the court erred in making this order requiring this' amendment.

The amended petition sets forth that the defendant is a railway corporation; that prior to and on July 23, 1901, the plaintiff was employed by the defendant in and about its yards, tracks, switches, and roundhouse in the village of Bellevue, as a servant of said defendant in the capacity of assistant to the hostler, and that one of the duties assigned plaintiff as such assistant to> the hostler was to operate certain drop-grates of the company’s engines. That engine No. Ill was one of such engines having a drop-grate. That to drop said drop-gate it was necessary to press down a lever or bar on the side of said engine and release it from a hook-fastening and then permit that end of the lever or bar held by the hook-fastening to move upward and forward. That said lever or bar was so made that 'it was intended to be pressed down and controlled by taking hold of said lever or bar by the hand of the operator, and that said hook-fastening was not a self-releasing hook when the lever was pressed down', but' had to be released by taking hold of it by one hand of the operator.

Plaintiff says that the construction of said hook-fastening, lever and bar, with its connecting parts to said drop-grate, and said drop-grate, and the fire-box within which the said drop-grate’ was placed, were negligently, faultily and improperly constructed long prior to said twenty-third day of July, 1901, in that said grate when covered with a large amount of ashes and cinders was difficult and dangerous to drop.

That said lever or bar with its connecting parts to said drop-grate and said drop-grate and the fire-box within which the said drop-grate was placed, were permitted to become and be out of repair for a long time prior to and on the said twenty-third day of July, 1901, so that said grate when covered with a large amount of ashes and cinders was difficult and dangerous to drop.

That because of said negligent, faulty and improper construction of said hook-fastening, lever or bar and its connecting parts to said drop-grate, and said drop-grate, and the firebox within which said drop-grate was placed; or, the permitting to become and be out of repair the hook-fastening, lever or bar, and its connecting parts to said drop-grate, and the drop-grate, and the fire-box within which the drop-grate was placed, or because of both the faulty construction and the lack of repair; or some one or more of the above named causes, said drop-grate when covered with a large amount of ashes and cinders was very difficult, hard and dangerous to drop; all of which was known to the defendant company long prior to July 23, 1901, at which time plaintiff received the injuries complained of.

Plaintiff says that- he has not the means of knowing and, does not know, more specifically than he has above stated, the reason why said drop-grate was so difficult, hard and dangerous ' to drop, and in what particular said construction was faulty, or in what particular said hook-fastening, lever or bar, with its connecting parts to said drop-grate, and said drop-grate was out of repair, and for lack of such knowledge can not more specifically state the reason or reasons for the conditions then existing relative to the lever or bar and its connecting parts to said drop-grate, and said drop-graté and the fire-box within which the drop-grate was placed.

Plaintiff says that about ninety days prior to said twenty-third day of July, 1901,- and again about twenty days prior to said twenty-third day of July, 1901, he informed one of defendant’s officers and servants, to-wit, Thomas F. Carberry, who was plaintiff’s superior, of the condition of said engine, as aforesaid, and said officer and servant, to-wit, Thomas F. Carberry, at the times aforesaid, when informed by plaintiff of the condition of said engine, promised plaintiff that said condition would be remedied -and said engine would be repaired, and, relying upon said promises, plaintiff continued in the employ of said defendant.

That on or about the twenty-third day of July, 1901, plaintiff in the regular course of employment by defendant, had the said drop-grate to drop on said engine No. Ill, which drop-grate at the time was covered with a large amount of ashes and cinders. And that because of the faulty condition of said drop-grate, by reason of its faulty construction; and by reason of its being out of repair as aforesaid; or because of its being both improperly constructed and out of repair, plaintiff could not press said lever or bar down to release it from its said hook-fastening by taking hold of it with his hand or hands.

That at one or more times prior to this time on July 23, 1901, when plaintiff could not drop said drop-grate by hand, the chief hostler, whose orders plaintiff was bound to obey, had shown and directed plaintiff to use an iron bar as a pry to pry down the said lever or bar on said engine No. Ill, to release it from the hook-fastening so that the drop-grate might be dropped, and that at least on two different times prior to this occasion on July 23, 1901, the aforesaid Thomas F. Car-berry was present and in conversation with plaintiff while he was attempting to drop said drop-grate of said engine No. Ill, by the use of an iron bar, using it as a pry to pry down the said lever or bar to release it from the hook-fastening, so that the drop-grate might be dropped, at which times the aforesaid Thomas F. Carberry did not make any objection or in any way question the method employed by plaintiff to press down the lever or bar and drop said grate, but did say to plaintiff that he would see to having the necessary repairs made — that he would have it fixed.

That plaintiff, following the direction given him by the chief hostler, found a small bar of iron and proceeded with all proper care and caution to use it as a pry by placing it across the said lever or bar with one end under a pin on the outside of the fire-box and holding the other end in his hand, and pressing down on it to release said lever or bar from said hook-fastening, and at the same time taking hold of said hook with his other hand that said lever or bar might be properly released, and while so employed in attempting to release said lever or bar from said hook-fastening, said bar of iron used as a pry as aforesaid, slipped off said pin, and said lever or bar flew back up to the top of the hook-fastening, and plaintiff’s third finger on his left hand was mashed and broken.

That defendant’s failure to repair and fix said engine as promised by the aforesaid Thomas F. Carberry, was the direct cause of plaintiff’s said injury and the consequent evils following it.

Then follows a recital of the physical consequences to the plaintiff showing how he was injured and the effects, and a prayer for damages.

The character of the motion is disclosed by the order made by the court, and the order made was as follows:

, “Motion to make amended petition more definite and certain was heard and submitted to the court. Motion sustained by the court and plaintiff ordered to make his amended petition more definite and certain by averring therein: First, what caused the bar used by plaintiff to press down the bar in question to slip from under the pin on the side of the firebox of the engine; second, how, and in what manner ‘the defendant’s failure to repair and fix said engine as promised by the aforesaid Thomas F. Carberry was the direct cause of the plaintiff’s said injury and the consequent evils following it?’ To the sustaining of said motion by the court requiring plaintiff to make his petition more definite and certain, the plaintiff then and there excepted.”

It will be observed, to state the matter very briefly, that the allegation is that the engine was so designed and constructed as that this operation of dumping .the ashes and cinders might and should be done by hand, by taking hold of a certain lever; that that was the proper way to do it, but that the engine was so faultily constructed and had become so badly out of repair, that that course was impracticable and that, therefore, in order to press down the bar to release the hook holding it, and then allow it to come up and forward, it became necessary to use some sort of a lever to make the necessary pressure upon the bar.

The particular defect arising out of faulty construction or lack of repairs whereby the use of such lever was made necessary, is not pointed out, and it seems to us, that as the petition stands that was not necessary; that it was sufficiently stated; that this is not the matter with respect to which plaintiff was required to amend; that this is not the matter of which the defendant desired to be more particularly informed by the pleadings.

What the defendant desired to know, and what the plaintiff was required to set forth, was the precise cause, of the bar slipping, assuming that it was necessary to use a bar because the machinery could not be handled by hand as designed.

“What caused the bar used by plaintiff to press down the bar in question to slip from under the pin on the side of the fire-box of the engine.” That was one thing to be definitely stated, and defendant also desired to have pointed out how it was or why it was that the failure to repair and fix the engine was the direct cause of the plaintiff’s injury.

It seems to us that it fairly appears from this petition, as it stands, that the alleged defect in the construction of the engine, or a defect growing out of its being out of repair, was not the proximate cause of his injury; that the petition itself discloses that the proximate cause was something connected with the immediate operation in the use of the hand lever that the plaintiff had selected to use to press down the other bar. The petition, we think, sufficiently sets forth, therefore, and discloses the occasion for the use of the hand lever or bar that was selected. The petition sets forth sufficiently a knowledge of the alleged defects upon the part of the defendant railroad company. We think the petition sets forth sufficiently a promise upon the part of the defendant, or plaintiff’s superior in the service, to repair these defects, to justify the plaintiff in remaining in the service, if such promise to repair was, under the circumstances, a matter of any consequence in the case; and as to that I shall make some further remark.

We think the petition sets forth sufficiently the directions upon the part of plaintiff’s superior if the chief hostler and this man who is named are the samé; but about that we are in some doubt. If they are the same person, it sets forth sufficiently the direction to proceed in this way to do the work; but if the chief hostler is not the same person, then it is doubtful whether there is enough in this petition to show that he was the superior of plaintiff and not a fellow-servant. But passing that, and assuming that there is enough averred in the petition with respect to the úse of this selected bar in the presence of the superior to justify the plaintiff in using it as he did, we come to the more particular consideration of the things complained of in this motion — the things against which the motion is directed. I have mentioned these things with respect to which the allegations in the petition appear to be sufficiently definite and certain because counsel for plaintiff in error seem to regard the motion as being directed against and sustained as to those allegations or some of them; but in this counsel are in error, as clearly appears from the order I have read.

It is not enough to aver that a certain thing is the proximate cause of an injury. The pleading must disclose the facts which show that it is so.

So far as appears by this petition, there was no harm to the plaintiff resulting from this machinery being improperly' constructed or being out of repair. So far as appears, it was as safe or safer to the plaintiff to proceed as he did by the use of this hand lever that he selected, than it would have been to handle the machinery -as it was designed to be handled.

It is not stated, and it is not pointed out that there was any fault in the method that he was obliged to pursue, or any inherent difficulty or danger in that method that would make the defect in the machinery the proximate cause of the injury, or that enables us to trace back to and fix upon such defect in the machinery as the proximate cause of the injury. For aught that appears, this was an entirely safe, proper and convenient way to proceed, and the trouble arose from something in tho manner of the use of this bar that he selected, or something inappropriate or defective about the appliance itself.

From the mere fact that an accident happened, we can not infer that there was any defect therein, or that the railway company was at fault. The defendant had a right to know the precise fault charged against it on account of which the plaintiff sought to recover. He said he was injured by this bar slipping off, and he asks for damages against the defendant on account of that; but he does not say that the defendant put him at the work and directed or caused him to pursue a plan or method of operations that would necessarily enhance the danger; neither does he say that the appliances furnished were at all defective — I mean the appliance he selected and used to move this hand bar of the engine.

He is asked to state how it came about that the lever slipped off the bolt. He should do that. The defendant has a right to know that. It has a right to know whether it is claimed that the bolt was too small for the purpose, or too smooth, or too much rounded or beveled, or whether the bar was too light or too heavy, or too slippery, or too rounded at the end where they undertook to attach it to the bolt, or whether the fulcrum was unsteady or insecure, or whether it is claimed the whole operation, with such appliances, was necessarily dangerous, or what was wrong with the appliances or the method pursued, and it is not informed by this petition as to any of these points, or of any particular ground of complaint.

We conclude, therefore, that the court was right in sustaining the motion. But we go somewhat beyond that. If the petition did not state a cause of action, as it stood, we would not reverse this order and judgment, even though it should appear to us that the court was in error as to the precise point upon which it acted or proceeded in making the order.

McKnight & Thomas, for plaintiff in error.

C. P. & L. W. Wickham, for defendant in error.

We think that because of failure to make it appear that defects in the machine whereby it could not be operated without the use of a lever — defects in construction — or defects, because of a lack of repair, constituted the proximate cause of the injury; that is, because the pleader has failed to point out that, being in that condition, it was necessary to pursue a method of operation that was inherently and necessarily dangerous, so that the proximate cause could be traced back to the original defects in the machine (but it appearing that the proximate cause of the injury must have been some fault in the immediate tools employed), and there being no allegation to the effect that plaintiff did not know of the defects or faults therein and the dangers incident to the use thereof, or that though he had such knowledge there was a promise to remedy such defects, or cure, such faults, the petition is demurrable under the ease of Coal & Car Co. v. Norman, 49 Ohio St., 598.

As the petition now stands, we can not find'the proximate cause further back than the immediate tools used or methods employed in the operation. But it is not averred with respect to these things that the defendant was at all at fault in furnishing tools that were improper or unsafe, or in directing the plaintiff to proceed by a method that was improper or unsafe. Nor is it averred that there was danger or defects in such appliances of which plaintiff was not informed, or that, being informed thereof, he was excused because of a promise made on the part of the employer to repair or correct the defects or faults. Therefore, upon the additional ground that the petition was demurrable, the court was justified in dismissing the case. The judgment of the court of common pleas will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    UNCERTAINTY IN WRITTEN CONTRACT.
    [Circuit Court of Hamilton County.]
    Henry Schmidt v. Leroy Turner.
    Decided, January 28, 1905.

      Evidence — Offered in Parol as to Price — Where Written Contract was Uncertain — “Usual" Price, “Market”' Price, and “Fair” Price.

    Where a fair price for a given piece of work can only be ascertained from the peculiar circumstances of the case, and the defense has 'offered evidence tending to show the market price by way of explaining an uncertainty as to price in the written contract, it it not reversible error to admit testimony in rebuttal offered for the purpose of showing what a fair price would be for that particular work.
    Swing, J.; Gippen, J., and Jelke, J., concur.
    . This case is in this court on error to the judgment of the court of common pleas. The only error complained of relates to the admission of certain evidence by the plaintiff below offered and received in rebuttal. The action was- on a written contract for digging a ditch. The only question in controversy is as to the price at which the work was to be done — whether it was thirty-five (35) cents per foot or thirty-five (35) cents per yard. The plaintiff claimed it was thirty-five (35) cents per lineal foot, while the defendant claimed it was thirty-five (35) cents per cubic yard.
   It is undisputed that two copies of the contract were written out. The one kept by plaintiff was signed by both parties and was for thirty-five (35) cents per foot; the one retained by defendant was signed by Turner. This one also was for thirty-five (35) cents per foot. On the back of this was an unsigned statement that it was to be thirty-five (35) cents per yard, which defendant claimed was the agreed price.

By way of defense, the defendant offered the evidence of three witnesses', who gave evidence tending to show that they were contractors of experience in such work in the locality of this work, and they were asked as to the fair market price for such work in that locality at that time, and over the objection of the plaintiff they were permitted to answer what the fair market price was.

It was claimed to come within the rule announced in 22 O. S., 138, and 41 O. S., 307. In the 22 O. S., the syllabus is as follows :

“In an action to recover the amount due on a contract for work, when the testimony is conflicting as to the price agreed upon for the work, it is competent to show the value of such work at, the time the contract was made, as tending to show what the agreed price was. ’ ’

On page 142, the court, in discussing the evidence of the case, say:

“But it was of some value as tending to show the improbability of the claim of the defendant, and to enable the jury to arrive at the truth upon the point at issue between the parties, and was therefore admissible for what it was worth in connection with the other evidence in the case.”

In the opinion the court cites two cases as sustaining its conclusions, and quote from Kidner v. Smith, 34 Vt., 294, as follows:

“Where the testimony is conflicting as to the price agreed upon in the'sale of personal property, it is competent to show the value of the property at the time of sale, as tending to show what the real contract was. * * * The parties were in dispute arid their evidence conflicting. Whether the defendant was to pay thirty-five or sixty dollars for the mare, and it became necessary to resort to circumstances and probabilities to determine which was right, as showing a probability in favor of the defendants version of the trade, we think it was competent for the defendant to prove the value of the mare to be even less than the sum he was to pay.”

The court also quote from Swain v. Cheney, 41 N. H., 232, as follows:

' “Evidence was admissible as bearing upon the probabilities of the case to show what was the usual and common price paid at that time and place for similar services.”

The conclusion of the court is evidently based on the Vermont ease rather than the New Hampshire case, as the two are not exactly the same in principle.

The case in 22 O. S. is followed in the case of Spenck v. Dean, 49 Neb., 66, the third proposition of the syllabus in the case being as follows:

“Where in an action to recover an amount alleged' to be due the plaintiff as wages for work and labor performed at an agreed price, there is a conflict in respect to the amount agreed upon,' evidence of the value at the time of the contract of the work performed is competent and admissible.”

In the case of Valley Lumber Company v. Smith et al, 71 Wis., 304, the first proposition of the syllabus is as follows:

“Where there is a direct conflict of testimony as to the price orally agreed to be paid for property, evidence of its real value at the time of the contract is admissible.”

In Krammen v. The Meridean Mill Company, 58 Wis., 399, the second proposition of the syllabus is as follows:

“In an action for the balance due on a parol contract for manufacturing laths, the complaint alleged that the agreed price was forty-five cents and the answer that it was twenty-six cents per thousand. It appeared that in pursuance of the contract the work had been done in the defendants’ mill and it had furnished the power, oils, files, and twine, and had done the filing and mill-wright work. Held: That evidence on the part of the plaintiff as to the usual price for sawing laths in mills generally was inadmissible.”

These last two- cases cite the case of Allison v. Horning, supra.

It will be seen that the foundation in which the rule rests is not very substantial, and that the value of the evidence is not considered very great. It is considered of some value and is admitted for what it is worth, is about the best that can be said of it.

We find no decision which goes to the extent of admitting evidence as to the “market price” in such cases, and it would seem from the case in 58 Wis., supra, where “usual price” was held inadmissible that “market price” would be equally inadmissible. Probably there-could be no such thing as a “market price” for digging a ditch — that the difference which must naturally exist in different ditches would require different prices, and, therefore, preclude the establishment of a market price.

Moulinier, Bettman <& Hunt, for plaintiff in error.

Geoffrey Goldsmith and Jas. B. Jordan, contra.

It is doubtful whether plaintiff in error had' properly saved an exception to the evidence offered by plaintiff in rebuttal. Evidence was offered by plaintiff in chief without objection on the part of the defendant as to the number of men and as to the time that they worked on this work, so that whether the objection of defendant to this kind of evidence when offered by plaintiff in rebuttal was well taken or not, would probably be immaterial for the reason that the evidence was already before the jury without objection.

But we are of the opinion that this evidence was proper by way of rebuttal to the evidence of the defendant as to market price.

The judgment will be affirmed.


text:
    REMOVAL OF GUARDIAN.
    [Circuit Court of Darke County.]
    A. A. North v. John A. Smith et al.
    Decided, November Term, 1904.

      Guardian — Removal of for Cause — Error to Court of Common Pleas Proceedings not Reviewatle.

    The circuit court is without jurisdiction to review on error an order of the court of common pleas removing a guardian for cause, made on appeal from the probate court.
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
    By a proceeding in the probate court, the plaintiff in error, a guardian, was by the order of that court removed for cause. An appeal was prosecuted to the court of common pleas under favor of Section 6407 of the Revised Statutes as amended (95 O. L., 406).
   That court also made an order of removal.

It is now sought to prosecute error proceedings in the circuit court to review the order of the court of common pleas.

A. A. North, W. T. Stubbs, for plaintiff in error.

Meeker & Gaskill, Anderson, Bowman & Anderson, for defendant in error.

Has the circuit court- jurisdiction ?

Before tbe amendment of Sections 6708 and 6407 (95 O. L., 391, 406j, Revised Statutes, neither error nor appeal could be prosecuted from an order of the probate court removing or refusing to remove a guardian. This was so for the reason, it was held, that such an order did not affect a substantial right. Had it been such order as is defined in Section 6707, Revised Statutes, error or appeal would lie under the general statutes without special provision made therefor. It was the policy of the law to confer upon the probate court exclusive jurisdiction over the matter. The amendment extends t-he jurisdiction in error and on appeal to the court of common pleas. It does not change the character of the order, as, though final, not affecting a substantial right. It does not enlarge the jurisdiction in error of the circuit court. Section 6709, which confers jurisdiction, is the same as before. The order that may be reviewed by virtue of its provisions'is such as is defined in Section 6707, and we have seen that the order in question is not of that character. It can not, therefore, be reviewed by the circuit court.

Society v. Ely, 56 O. S., 405, and Davis v. Kauffman, 55 O. S., 556, relied upon by the plaintiff in error, are not in conflict with this view. The orders there reviewed were held to affect a substantial right. Subsequently Munger v. Jeffries, 62 O. S., 149, holds that an order such as is involved here is not reviewable under the general provisions of the statute. Reading the order into Section 6708 enlarged the jurisdiction of the court of common pleas by that much more than is conferred by Section 6707. But it did not by that much enlarge the jurisdiction of the courts all along the line. Notwithstanding the amendment, it should be said that it is the policy of the law now, to make the jurisdiction of the court of common pleas final, as it was before the policy to make that of the probate court final. The reason for the policy still obtains, and the amendment should not be given scope beyond its letter.

The petition in error will be dismissed.


text:
    EMPLOYE GIVEN DANGEROUS PLACE TO WORK.
    [Circuit Court of Huron County.]
    Edward L. Green v. New York, Chicago & St. Louis Railway.
    Decided, October Term, 1904.

      Master and Servant — Latter Bound to Know the Dangers of the Place in Which He is at Worlc, When — Contributory Negligence — Burden of Proof as to — Presumption of Negligence Arises, When — Evidence — Charge of Court.

    1. Where the conditions are not complex, and the circumstances such as to be easily comprehended, an employe who know® the facts and conditions and circumstances, is bound and conclusively presumed to know the dangers arising therefrom.

      2. A presumption of negligence arises which it is the duty of the administrator to rebut, when it appears that the decedent might, by the exercise of ordinary care, have seen the train by which he was struck, or by listening would have heard it, in time to have stepped from his place of danger.
    3'. When a question and answer do not add anything to the facts of the case, a reviewing ooiurt will not reverse the judgment, notwithstanding the question was incompetent, and a motion to strike it and the answer from the record might well have been granted.
    Hale, J.; Parker, J., and. Marvin, J., concur (Judges Hale and Marvin sitting in place of Judges Hull and Haynes).
    Heard on error.
   Edward. Green, the decedent, on June 8, 1901, was employed by the defendant railroad company, as a section hand and had been so employed1 for about a year and a half. On the day named, he was at work repairing the track at Bellevue, or leveling up the roadbed which had been disturbed by the renewal of the track. While so at work, a train passing upon the track between the rails of which he stood, ran him down and killed him. This action is prosecuted by his son who' was appointed administrator, as authorized by statute, to obtain compensation from the railroad company for wrongfully causing the death of the decedent.

The negligence charged in substance is, that the company failed to provide 'any rule or regulation for the government of its employes to insure their safety while in the performance of their duties; that the engineer in charge of the engine that run Green down, failed to give any warning of the approach of the engine "either by bell or whistle; and that the company was further in fault by not providing some means by which he could have been warned of the approach of the train, either by his boss, or some other employe of the company. This last ground of negligence is not very distinctly stated in the petition, but we give the plaintiff the benefit of such allegation.

The issues were made upon these allegations of the petition, by a general denial, except the admission of certain formal averments, and charging contributory negligence on the part of the decedent such as should defeat a recovery.

Trial was had, a verdict rendered, under the charge of the court, in favor of the defendant, and, after the overruling of the motion for a new trial, judgment was rendered upon the verdict.

Several errors are assigned which we will briefly notice. First, it is said that the verdict was not sustained by sufficient evidence and therefore the motion for a new trial should have been granted instead of overruled.

Considering the nature of the employment of this decedent, his work upon the tracks of the railroad company — always dangerous- — -where many trains were passing back and forth, and knowing that no provision had been made by the company, either by rule or otherwise, to insure his safety, it was incumbent upon him to take all reasonable care himself to escape injury from passing trains. He had no ground whatever for relying upon being taken care of by the company other than what was done, except to expect the engineer upon the engine to give the accustomed signals. But without going into a discussion of the facts, we 'are satisfied that the verdict was the only one proper to have been rendered in the ease. However the facts of the case were such as to render it entirely proper that the issues should be submitted to the jury , and a verdict had, before tbe court should attempt to deal with the facts. If the case was not properly submitted to the jury under the correct rules of law, then the verdict should be set aside and the plaintiff given an opportunity to have the case passed upon by a jury under the proper rules of law; so we have to examine the errors of law that are claimed to have occurred at the trial.

The proposition discussed at considerable length by the attorney for the plaintiff, would be adopted by this court without discussion, and that is, “It is the duty of a railway company to provide a reasonably safe place for its employes, in the performance of their duties, or at least to exercise reasonable care to that end.”

Adopting that rule which is as broad as claimed by the plaintiff’s attorney, we need not refer to the various cases to which reference has been made.

It is said that the court erred on the trial of the case, in giving to the jury certain requests that were made by the defendant. We refer to request numbered 4 which reads:

“If the jury find that there was no rule of the defendant requiring the section boss to give a notice to the men under his direction of the approach of the train while they were upon the track, and also find that the decedent knew that there was no such rule, and continued in the service of the defendant as section man without complaint or objection, he assumed the risk incident to such failure to provide such rule and the plaintiff can not recover in this case on the ground of the failure to provide,such rule.”

The objection made to this request is that it does not embody in it the element that the plaintiff not only knew that there was no rule of the kind referred to, but also knew of the dangers incident to the lack of such rule. It is claimed •that the request is faulty in that it alleges only the knowledge of the plaintiff of the fact that there was no rule, without alleging the knowledge of the plaintiff that the absence of such rule created a danger.

As we understand the rule to be in this state, where the facts are simple and the conditions not complex, and the circumstances such as to be easily comprehended, one who knows the conditions, and the facts and circumstances, is bound and conclusively presumed to know the dangers resulting from such fact.

In the Eighth Circuit a case arose in which a party was injured upon a covering to a side-walk, or cross-walk. The party injured knew the exact condition of that covering; it had become worn so that it was slippery — it had been raining, and at the' time of the accident this covering was quite slippery. The plaintiff sought to recover on the ground that, although he knew the exact conditions, he did not know of its danger, did not know it was dangerous, and the two lower courts sustained him in that theory.

The Supreme Court reversed the judgment of the lower courts and held that if the plaintiff knew all about the condition of the walk, he was bound to take cognizance of its dangers, if there were any. The Supreme Court has also held that an employe, experienced in his business and the duties incident to his work, is chargeable with the dangers resulting from those defects of which he has knowledge. The case of Pennsylvania Co. v. McCurdy, 66 Ohio St., 118, supports that proposition.

The criticism then of this request is not just. There was no error on the part of the court in giving this request to the jury. Just what view the jury took of the situation and what their findings were, under this request and the charge of the court, can not be definitely ascertained, under the general verdict which was rendered. There was no special finding as to the effect of this rule.

Again, it is said that the court erred in giving to the jury request No. 7, made by the defendant on the trial of the case. The effect of that request has been a matter of much discussion since the ease was submitted to the court, among the members of the court. That request reads:

“That if the jury find that on the morning in question the decedent was at work on the track of the defendant at a point about 275 feet south of the crossing of the track of the Lake Shore & Michigan Southern Railway Company and the defendant company; that the morning was a fine, bright, quiet day; that the train which struck decedent was coming up a grade and making a rumbling and puffing noise; that the decedent was standing up-when he was struck by the train; and if the jury find that said decedent, in the exercise of ordinary care by looking, would have seen the approaching train, or by listening would have heard the noise of the approaching train, a presumption of negligence on his part would arise; and before the plaintiff can recover, the burden rests upon him to remove such presumption and show that he was exercising ordinary care, by a preponderance of the evidence; and such evidence must be exculpatory; it must show some reason; it must sustain some excuse; it must appear from the evidence that while this seems to be negligence, and that it seems that Edward Green was negligent, yet under -the peculiar circumstances, that result does not follow.”

That request, as we think, was aimed at the burden of proof upon the issue of contributory negligence of plaintiff. In the charge of the court to the jury, the court said:

■ “In the transaction under investigation, the circumstances required the exercise of ordinary care on the part of Green to avoid injury. If the evidence offered by the plaintiff does not disclose any want of such care, on his part, the burden is . on the defendant to show that he did contribute directly to his death, and the burden in such ease must be sustained, and the facts shown by a preponderance of the evidence, as before defined.
“If, however, the plaintiff’s evidence in support of his cause of action raises the presumption of such contributory negligence on the part of Green, the burden rests upon the plaintiff to remove that presumption by a like preponderance of the evidence.”

It is quite clear that if, on the trial of the issues in this ease, the plaintiff had produced evidence establishing the fact recited in this request, it would have raised a presumption of negligence of decedent, and the burden of removing that presumption would have rested on plaintiff, and a failure to remove it would have defeated his recovery.

The exact meaning of this request is, that if the jury found the facts enumerated in the request and if, in the exercise of ordinary care, by looking, decedent would have seen the approaeh of the train, or by listening, would have heard it, a presumption of negligence would arise on his part which it was his duty to rebut. This was right. There was no error in giving to the jury this request.

Request No. 8, which I will not stop to read, upon the subject of the care required of the plaintiff, we think was not misleading as claimed, but was properly given to the jury. We think the criticisms made of the general charge of the court are without merit and the charge as a whole, in connection with the request, fairly embody the law applicable to the facts in the case.

Complaint is made of the rulings of the court in excluding evidence that was offered on the part of the plaintiff on the trial, and one class of questions which were excluded, tended to establish the fact of the exact position of the decedent some ten or fifteen minutes prior to the time he was killed.

Ordinarily, when it becomes important to show the exact situation at the time of the happening of a certain event, testimony upon either side as to existing conditions would be competent; but the nature of this man’s work upon that track was such as to require an almost constant change of position, and the fact that he was in a certain position with his back in the direction toward which the train approached ten or fifteen minutes before the happening of this accident, would not necessarily mean that he was in the same position at the time the train struck him. The trial judge might have permitted that testimony to go to the jury without-error; but taking the nature of the work, the circumstances surrounding decedent at the time, it is clear that he could not have got himself into any position where, in the exercise of ordinary care, it was not his duty to have observed the approach of that train; and hence the exclusion of this question was not such error as requires the reversal of this judgment.

Again, it is said that the defendant was permitted to show that others heard the approach of the train and got off the track, and that this was for the purpose of raising the presumption that the decedent also heard the train and might have left ■the track.

The connection in which that is stated, is this: A witness, a co-employe, was on the witness-stand and he was asked: “You heard the train coming and got off the track, did you?” “Yes, sir.” And that without objection. “Where was it when you first noticed it?” “It was going across the Lake Shore tracks.” “That is where it was when you got off?” “Yes, sir.” “The other section men were there — how many of them?” “I don’t know just how many there were, but in the neighborhood of eight or ten of them.” “All the rest of you heard the train ■and got off?” “Yes, sir.”

Counsel for plaintiff then objected and the court said, “The answer may stand; the objection is pretty late”; and an exception was taken.

This was holding counsel to a strict rule. Counsel for plaintiff said, “I object to the question and answer and ask that the answer be stricken out.” We think, if we had had the ruling of the trial court to make, we should have permitted that answer to go out. The question and answer, we think, were clearly incompetent. But the answer did not add anything to the conceded facts in the case. This witness had testified he heard the train coming and got off the track. There were eight or ten others there and incidentally they say all the others got off the track. It was conceded that no one else was hurt. We do not think it a sufficient reason for reversing the judgment because this testimony was admitted although the motion to strike out might well have been granted.

The conclusion that we reach is, that there was no prejudicial error in any of the rulings upon the admission or exclusion of the testimony for which this case should be reversed. There is nothing that leads us to the conclusion that the plaintiff did not have a fair trial. The only trouble with this case was that it was weak.

It is said that this ease should be governed by the case of Railway v. Murphy, 50 Ohio St., 135. It is a little dangerous to say that one case should govern another case on its facts. Two cases might be cited in whch the one should rule the other, but all this case of Railway Company v. Murphy holds is, that it was proper in that case to have submitted to the jury the question of contributory negligence of the plaintiff, Murphy. In the third clause of the syllabus the court say:

Jesse Vickery, for plaintiff in error.

C. P. & L. W. Wickham- and John- H. Clark, for defendant in error.

“The evidence as to contributory negligence on the part of deceased made a case which, at least, was doubtful, and about which different minds differ as to the proper inference to be drawn. Such a question can not properly'be determined by the court as matter of law, and should be submitted to the jury. The request was properly refused.”

That request was this, page 137:

“ ‘Upon the undisputed facts in this case it appears that the defendant railway company was not guilty of actionable negligence, and that the deceased was. guilty of contributory negligence which brought about his death, and the verdict of the jury should be for the defendant.’ ”

This was properly refused, the court holding that the question of fact should have been submitted to the jury. It was submitted to the jury; the jury found in favor of the plaintiff and the court sustained the verdict.

In this case, the court did not undertake to say as matter of law, that the plaintiff, under the facts in the case, was guilty of contributory negligence, but left the facts to be found by the jury, stating what would amount to contributory negligence, if the jury found such facts. The jury found in favor of the' defendant in this case, and with that finding the court is entirely satisfied. This discussion might be extended still further, but on the whole, we have reached the conclusion that there is no error apparent upon the record for which this judgment should be reversed and the judgment of the court of common pleas is affirmed.


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    ESTABLISHMENT OF A COUNTY ROAD.
    [Circuit Court of Wood County.]
    The Cincinnati, Hamilton & Dayton Railway Company v. George J. Brossia et al.
    Decided, April 25, 1903.

      Roads — Establishment of, by County — Report of Reviewers — Commissioners not Required to Proceed De Novo Thereafter — Order as to Damages and Costs Complied with, When — How Payment Should be Made.

    1. Where a favorable report is made by road reviewers appointed by a board of county commissioners, and is in agreement with the report of the viewers, the commissioners are not required to proceed de novo by reading the report of the reviewers upon two different days of the same session, but may resume the proceedings at the point where they were discontinued at the time of the filing of the petition for review.
    2. Where the board of county commissioners orders the payment of the costs and damages forthwith as a condition precedent to the estabishment of a county road, it must affirmatively appear that they were not paid forthwith, in order to constitute error for which the proceedings should be reversed; and it would be a substantial conformity with such an 'order, if the costs and damages were paid immediately prior to the time the order was made for the establishment and opening of the road.
    3. The costs and damages arising from the establishment of a county road should be paid into the county treasury, and not directly to the claimants.
    Parker, J. (orally); Haynes, J., and Hull, J., concur.
    A proceeding was instituted before tbe county commissioners of. this county by George Brossia and other petitioners for a county road under the chapter upon that subject, beginning with Section 4337. The road was established by the county commissioners, and the plaintiff, the railroad company, being dissatisfied and being interested, appealed to the probate court as it might do under the statute. The evidence adduced upon the hearing before the probate court was simply and only the record of the proceedings before the county commissioners, and upon that evidence the probate court entered up judgment in accordance with the order of the county commissioners, i. e., confirming their action. Error was thereupon prosecuted to the court of common pleas and the judgment of the probate court was affirmed; and now the railroad company- prosecutes error to this court to obtain an order of reversal and the setting aside' of the order of the county commissioners and the judgments of the probate court and the court of common pleas.
   It appears from the record that after the report of the viewers had been brought in, a petition was filed for a review, and an order to review was made, and a report of the reviewers was brought in, and that report, as well as the report of the original viewers, was in favor of the establishment of the road. The county commissioners, however, were of the opinion that the road was not of sufficient importance to the public to justify the payment from the county treasury of the costs and damages that had been awarded, and, therefore, proceeding under Section 4651 of the Revised Statutes, the county commissioners ordered that the road should be established upon the petitioners paying these costs and damages, or a certain proportion of them, which further order is authorized by Section 4651. This order was that as a condition of the opening of the road, these costs and expenses should be paid.

It appears from the record that within a few months the costs and damages were paid by the petitioners, and that thereupon the county commissioners ordered the opening of the road.

The complaint of the plaintiff in error is that, after the report of the reviewers was brought in, upon its being read but one time, the county commissioners proceeded to make this order for the establishment and opening of the road. The section upon that subject is 4653, which reads as follows:

“If the report of the viewers be in favor of the road, the same shall be established, recorded, and opened agreeably to the provisions of this chapter, and the persons bound for the same shall pay into the county treasury the amount of the costs of such review.”

Section 4658 is relied upon by the county commissioners. It provides that if the report of the viewers be in favor of the road, and “if, on receiving such report, there is no legal objection thereto, and the commissioners of all the counties interested are of the opinion that such road, if opened, would be of public utility, they shall order the same to be opened in the manner pointed out by this chapter. ’ ’

It is insisted by plaintiff in error that the meaning of that provision is that the county commissioners shall proceed substantially de novo, as if this were the original report of the original viewers, and that, therefore, in pursuance of Section 4650 (which it is said should be read with this), the report should be read on two different days of the same session, and if no application be made to them for a review of the road, or any part thereof, if the same be capable of division, will be of public utility, and the report’ of the viewers is favorable thereto, and no damages have been claimed or assessed, shall on the third day of the session cause the report, survey and plat to be recorded. Now these provisions apply to the original report of the viewers; it is insisted, however, that because of the phrase which I have read from Section 4643, they apply as well to the report of the reviewers, and that their report should be read on two different days before action is taken upon it.

We are of the opinion that the true construction of this section is given in Giauque’s Road and Bridge Laws at page 42, paragraph 155, reading—

“When the reason for discontinuing the proceedings provided for before paragraph 123 above, is the filing of a petition for review, and the reviewers accordingly appointed also report in favor of the road or otherwise in agreement with the report of the viewers, these proceedings should be resumed where left off, and the orders as to establishing and opening the road should be made and recorded, with such modifications only as the proceedings on the petition for review have made necessary.”

We can see no reason for requiring the reading and re-reading of the report of the reviewers upon different dates, neither do we think that the statute requires that.

There are circumstances under which the county commissioners are required to go back to the petition and begin de novo; for instance, in Section 4651a, where the report of the viewers comes in ancl it is found there is a substantial irregularity in the proceedings; in a case of that kind it is provided that the proceedings shall re-eommence at the point provided for by Section 4642, and shall proceed as before; and turning back to that section and observing what is required from that point, we find it leaves nothing substantially but the petition on file as a basis for a proceeding for the establishment of the road. That is a reasonable provision, and in view of the fact that there is this specific provision with respect to this kind of a case, we think it adds force to the construction that Giauque in his work has given to the statute. The county commissioners made an order substantially for the suspension of the proceedings until a report of the reviewers came in. Upon the report of the reviewers coming in, it being confirmatory of the reviewers’ report, they took the proceedings up at the point where they had suspended them and proceeded to the end, i. e., the establishing of the road.

It is said there is error in this record, because of the fact that the county commissioners ordered the payment of the costs and damages forthwith as a condition precedent to the establishment of the road, and that it does not appear that they were paid forthwith. Indeed, it does not appear that they were not paid forthwith, and if there was any error in .that, if it would be an error to proceed unless they were paid forthwith, that should affirmatively appear as a ground for reversing the proceedings. But we think that even if the costs and damages were not paid until immediately prior to the time that the order was made for the establishment and opening of the road, that that would be a substantial conformity to the order that they should be paid. At all events, the authority providing this condition might waive it, or modify it, and by afterwards permitting the payment to be made and ratifying it, all possible defects in that respect would be cured. It is said, too, that the payments should have been made directly to the claimants. Payments were made, it appears, to the county, i. e., the money was paid into the county treasury, ¿nd we think that was proper. We think it would lead to confusion and difficulty to undertake to work it out in any other manner, especially in the'manner suggested. We think this is not only a substantial compliance with the statute, but the other course should not be encouraged, and perhaps would not be proper at all. At ány rate, we find there is no error in this proceeding.

R. D. Marshall, F. A. Baldwin, for plaintiff in error.

E. G. McClelland, for defendant in error.

As to this being a conditional order, I have already stated that Section 4651 provides for just such an order. What the statute provided on this subject at the time of the decision by the Supreme Court, cited to us, to the effect that an order of this character may not be conditional, we have not examined. We are satisfied that the order in this ease was in substantial conformity to the statute, and that the proceedings all through are so; that there is no material error, and therefore the' judgment of the court of common pleas will be affirmed.


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    OWNERSHIP OF PROPERTY COVERED BY INSURANCE.
    [Circuit Court of Medina County.]
    Farmers’ Mutual Fire & Lightning Insurance Co. of Medina County, Ohio, v. Emily J. Ward and Hiram Hart, Partners.
    Decided, June 3, 1902.

      Fire Insurance• — Policy Indicating Joint Ownership — Not Void Because the Property is Owned in Severalty, When — Parties—Joinder— Section 5005.
    1. A policy of fire insurance is not rendered void by reason of tbe fact tbat tbe application for tbe insurance, which was signed by an agent of the owners, indicated a joint ownership, instead of ■ownership in severalty, when it. appears that the nature of the ownership was fully understood by tbe agent of tbe company at tbe time the application was signed, and that it was procured by him.
    2. Where several parties are protected from loss by one and the same instrument, and their loss occurs at the same time, and the rights of each one can be fully protected without prejudice to the defendant, they may jointly maintain an action under tbe provisions of Section 5005.

      Marvin, J.; Caldwell, J., and Hale, ‘J., concur.
    Error to court of common pleas.
   This is a proceeding in error brought to reverse a judgment of the court of common pleas in an action wherein the defendants in error were plaintiffs and the plaintiff in error was defendant. The result in the court of common pleas was a judgment in favor of each of the defendants in error. The terms, plaintiffs and defendant, used in this opinion, refer to the parties as they stood in the court below.

The petition upon which the case below was tried was an amended petition and was filed by the plaintiffs jointly. The ■action was founded upon a policy of insurance issued by the defendant on June 28, 1894. The defendant is a mutual insurance association organized under the statutes of the state, for 'the purpose of insuring its members against loss or damage to property by fire or lightning.

The policy sued upon, though dated as hereinbefore stated, purported to insure from April 12, 1894, at noon, until April 12,- 1899, at noon. This policy was issued to E. J. Ward & Company.

By a provision of the constitution of the defendant, any person insuring in the association and complying with its rules, becomes thereby a member of the association. Before insurance was issued, it was required that the party wishing to insure should file' an application for such insurance, and, before any policy should issue, the applicant must subscribe to the constitution and by-laws of the association in compliance with Section 3690, Revised Statutes.

The application upon which the policy sued upon was based was dated April 12, 1894, and the signature thereon appears in these words “E. J. Ward & Co., by Agt.,” and the subscription to the constitution -is in the same words and dated at the same time. This signature to both the application and the constitution and by-laws was actually written by R. D. Ward, who was the husband of the plaintiff, Emily J. Ward. At the time of the making of this signature both to the application and the constitution and by-laws each was signed by J. S. Hatch in these words: “J. S. Hatch, Manager.”

The property purporting to be insured was a bam valued, in the application, at $700, and certain personal property. The application sets out that the property to be insured was owned by E. J. Ward & Co., and, as has already been said, the policy was issued to E. J. Ward & Co. As a matter of fact, the bam was owned exclusively by the plaintiff, Hiram Hart, and the personal property exclusively by the plaintiff, Emily J. Ward. The Wards, husband and wife, were occupying a farm owned' by Hart, on which the bam was situated. There was an arrangement between the Wards and Hart by which Mrs. Ward might become, upon certain conditions, the owner of the farm, but she never did become such owner. And the trial court instructed the jury (properly under the evidence) that Hart had no interest in the personal property, and that Mrs. Ward had no interest in the barn.

On February 14, 1899, said barn was entirely destroyed by fire, and at the same time a considerable part of the personal property was also destroyed in the same way, to recover for the loss of which the suit was brought.

Numerous errors are charged in the petition in error, one of which is that neither of the plaintiffs was ever a member of the association because neither had ever made application for membership or subscribed to the constitution and by-laws.

The evidence shows that J. S. Hatch, whose name, as has already been said, is signed on the application as manager, was, as such manager, the authorized agent of the defendant. The evidence tends to show that at the time the application was signed “E. J. Ward & Co., by Agt.,” Hatch was informed of the real facts as to the ownership of property, and that R. D. Ward was acting as the agent of both Hart and Emily J. Ward in signing the application and the constitution and bylaws, and that it was at the suggestion of Hatch that the signature to each was made as it was made. It is true that the signature would indicate that the property was owned by a co-partnership, or, at least, was jointly owned by several persons; but with the knowledge on the part of the representative of the defendant that the property was owned in severalty, a part by one and a part by another person, and that the signature was made at the suggestion of the agent of the defendant, we think the association can not be exonerated from liability because of the fact that on its face it would appear from the application and the signatures that the property was owned jointly by several parties.

In the case of Webster v. Insurance Co., 53 Ohio St., 558, the court held that although the application for insurance represented that the property was owned jointly by Julia L. Webster and her husband, James E-. Webster, while, in fact, the real estate was the sole property of the wife, Julia, and the personal property was owned solely by the husband, James, yet the facts being known to the company at the time the application was made and the policy issued, the company was not relieved from liability on that ground. Judge Spear, in the opinion in the case, at page 565, uses language which would seem to be equally applicable to the present case, as follows:

“ * * * These plaintiffs were not lawyers; the property was in the country, and they were,' without doubt, plain country folk. Who would suspect them of intending to be understood that their ownership was that of joint tenants, or of tenants in common, within legal definitions? Rather it is natural to presume that they used the word in the popular sense, implying that they owned the property together, and that no other person was interested in it.”

There was no error on the part of the court of common pleas in holding that the application and the signatures to the constitution and by-laws, under the facts, disclosed to the agent at the time the application was made, were not sufficient to defeat recovery.

It is further claimed that, under the facts as disclosed by the evidence, the action could not be maintained by the plaintiffs jointly, because their interests were not joint; whatever interest each had was wholly separate and distinct from the inerest of the other. This claim is, in part, answered by the case of Webster v. Insurance Co., supra. It is true that, in that ease, no claim was made for the loss of personal property which was owned by the husband, and some stress is laid upon the fact that under the law and the relation subsisting between the husband and the wife, the husband had, in a sense, an interest in the real estate; so that the case is not, in that regard, parallel to this.

On the part of the insurance association, we are cited to the case of Masters v. Freeman, 17 Ohio St., 323. The first clause of the syllabus in that case reads:

“In an action brought by two plaintiffs for the recovery of a personal judgment, on an alleged indebtedness of the defendant to the plaintiffs jointly, the fact that the cause of action is not joint but several in its character, constitutes a good defense. ’ ’

The claim in that case was based upon an alleged misappropriation of certain funds belonging to the plaintiffs and the defendant jointly. The defendant answered that whatever indebtedness existed against him in favor of the plaintiffs, or either of them, was an indebtedness to each of them severally and not jointly, and the court, on motion, ordered such allegations of the answer as ■ undertook to show this state of facts to be stricken out and this is held by the Supreme Court to be erroneous.

The case of Bartges v. O’Neil, 13 Ohio St., 72, is also cited to us on the part of the insurance association. This was a suit brought originally by Owen O’Niel and Bridget, his wife, setting out that the O’Neils had been induced, by false representations of Bartges, to pay $1,300 for certain real estate which was really practically valueless. The court held in that ease that the plaintiffs had no joint interest in the claims, and, on page 77, this language is used:

“The petition, it is true, states the purchase of the Illinois lands to have been made by the plaintiffs; and the representations as to the situation, quality and value of the lands are stated to have been made by Bartges to them, the plaintiffs; yet, when taken all together, it appears from the petition that the purchase of the lands was made by Owen O’Neil, and that he paid the entire consideration; and that Bridget O’Neil was in no way interested, except to receive a conveyance of the title of the' land so purchased by Owen. But the action is brought to recover.for a cheat practiced by the defendant; and if the alleged cheat was proved, the party cheated would be legally entitled to recover the damages thereby sustained.”

And then the court go on to show that in no event was Bridget O’Neil injured by any representation made by Bartges; that she parted with nothing, and that, whatever injury was sustained by anybody, was sustained by Owen O’Neil and by him alone, and for that reason they could not maintain an action jointly for the fraud.

The present case differs from each of these cited, in that the plaintiffs claim under a contract issued to them jointly,, although the facts show that their interests are separate.

Section 5005, Revised Statutes, reads:

“All persons having an interest in the subject of the action,, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided.”

In commenting upon this section, as found in the codes of the several states, Mr. Bliss, on Code Pleading (3d Ed.), Section 73, page 116, uses this language:

“There is a distinction between the rule requiring persons united in- interest to be joined and the one just given (the section of the code above quoted), as the latter does not contemplate a joint interest, nor is the union made imperative. In the cases where it has been sanctioned, the interest is called a common one — that is, certain persons are interested in that-concerning which the wrong has been done, and will all be benefited by the relief which is sought; they have a common interest, and may join in seeking the relief. * * '* In either case, they may unite in an action, notwithstanding the technical common law rule confining the union to those having a joint interest. ’ ’

Again, in Section 74, the same writer says:

“It shocks the prejudices of common law pleaders to speak of a union of plaintiffs where there is not a joint interest; and, such is the effect of legal education and long habits of thinking, that, what seems so natural in - a proceeding to prevent a common injury, or to set aside a sale for the benefit of common creditors, or to subject to their respective claims the assets of an estate, seems almost impossible, in ease a sum of money is sought to be recovered in which sundry persons have a several, and perhaps unequal, interest. But it has come to be generally conceded that the rule is universal in its application, as it is in its terms; and if two or more are interested in the subject of the action, and in the relief sought, they may unite as plaintiffs for the recovery of money, or of specific real or personal property.”

This subject is further discussed in the subsequent sections of Bliss, and also in Pomeroy on Code Remedies, Sections 41, 62, 63. The purport of the discussion by each of these writers is, that, under the system introduced by the code of civil procedure, the rules which were in force under the common law system are so relaxed as to conform iti large measure to the rules in equity pleadings, and to authorize, though not necessarily to require, all who have an interest in the subject of the action, to unite in bringing suit.

In this ease both plaintiffs were interested in the subject of the action; they were protected from loss, if at all, by one and the same instrument; their loss occurred at one and the same time; and, in this action, all the rights of each could be fully protected without any prejudice to the defendant.

There was no error on the part of the court in holding that the action might be maintained by the plaintiffs joining in the •petition. By direction of the court the jury answered certain questions propounded to them, as follows:

“1. Who were intended by the name E. J. Ward & Co., as used in said application and policy? Answer: Emily J. Ward and Hiram Hart.
”2. Plow much, if any, of your verdict do you find as due to Emily J. Ward? Answer: $200.76.
“3. How much, if any, of your verdict do you find is due to Pliram Hart? Answer: $815.”

Under the evidence the jury might properly have answered each of these questions as it did. In conformity with these answers, the court entered judgment in favor of each of the plaintiffs for the amount found due to them severally, as shown by the foregoing answers.

Frank Heath and N. H. McClure, for plaintiff in error.

J. W. Seymour, for defendants in error.

The questions discussed in the opinion so far were properly raised by a motion filed for a new trial, and, so far as those questions are concerned, what has already been said in the case indicates that there was no error on the part of the court in overruling such motion.

Other questions are raised on the record — some as to the ruling of the court upon questions of evidence, as to the authority shown in R. D. Ward as the agent of the plaintiffs in making the application and effecting the insurance. Each of these has been carefully considered, and, without going into detail, we hold that there was no error in the ruling of the court as to any one of them which would justify a reversal of the judgment.

The judgment of the court of common pleas is affirmed.