author: Shields, J.

text:
    LIABILITY FOR VALUABLES STOLEN FROM A TRUCK DURING TRANSIT.
    Court of Appeals for Wayne County.
    The Pennsylvania Company v. Amelia C. Quinby.

    Decided, September Term, 1916.

      Carriers—Loss of Baggage by Theft—Presumption of Negligence—Burden of Proof on the Initial Carrier—Charge of Court.

    Where a trunk is opened and valuables stolen therefrom during transit in a continuous journey over a number of connecting lines, a presumption arises of negligence in its transportation, and in an action against the initial carrier for the loss thus sustained the burden is on the said carrier to show, not only that the loss did not occur on its own line, hut that proper care was exercised to prevent the occurrence of such a loss.

      McCarty, McClmtocTc & Armstrong, for plaintiff in error.

      A. D. Metz, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 28, 1916.

   Shields, J.

This was an action brought by the defendant in error, plaintiff below, to recover of the plaintiff in error, defendant below, the value of certain furs and clothing, securely packed in a trunk, and delivered by the defendant in error to the plaintiff in error at Wooster, Ohio, on September 22, 1913, to be shipped to Dresden, Germany, via Philadelphia and North German Lloyd’s lines, as per bill of lading issued and delivered to the defendant in error by the plaintiff in error of said date, and for which the defendant in error paid to the plaintiff in error the sum of $1.13 as carriage hire. She alleges that said trunk was broken open and said furs were taken out or stolen therefrom in transit prior to said trunk reaching Dresden, Germany. She further says that she duly performed all the conditions of the contract on her part, but that the said company did not safely carry and deliver said furs as it agreed and bound itself to do, but negligently failed to do so, whereby said furs were wholly lost to the plaintiff, to her damage in the sum of $1,985.

Said company interposed three defenses; first, it admits that a crated trunk was delivered to it at Wooster, Ohio, on the day and consigned to the plaintiff at Dresden, Germany, as in said petition stated, and that it agreed to transport said trunk over its own lines which terminate at Pittsburgh, Pennsylvania, and with respect to which trunk it agreed to act only as agent with respect to the portion of the route beyond its own lines, and it denies generally the other allegations of the plaintiff’s petition; second, that the plaintiff knowingly and willfully billed and classified the contents of said trunk as linen, and neglected and refused to disclose to the defendant the true contents of said trunk, whereby the plaintiff obtained transportation for said trunk at less than the regular rates then established by said company, and thereby deprived the defendant of the right to be compensated in proportion to the value of said goods and the consequent risk assumed, in violation of the interstate commerce laws of the United States; third, that the terms and conditions of the contract for the carriage of said trunk are contained in the second section of said bill of lading, which is as follows:

“Section 2. In issuing this bill of lading this company agrees to transport only over its own line, and except as otherwise provided by law acts only as agent with respect to the portion of the route beyond its own line.

“No carrier shall be liable for loss, damage, or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law, but nothing contained in this bill of lading shall be deemed to exempt the initial carrier from any such liability so imposed.”

To the foregoing answer a general denial was filed by the plaintiff. The plaintiff recovered a verdict and judgment against said company for $1,602.06.

Several errors alleged to have occurred on the trial were argued as grounds for the reversal of said judgment, but the main ground relied upon and argued was that the court below erred in charging the jury that said company having received and undertaken to transport said trunk, as stated, the burden of proof was upon it to prove by a preponderance of the evidence that the loss of said trunk did not occur on its lines to relieve it from liability for such loss, and that it exercised due care. Also that said court erred in charging the jury as to the liability of the initial shipping company.

There appears to be little or no controversy between the parties hereto as to the facts in this case, the uneontradicted evidence showing that the defendant in error was at the time of their shipment the owner of said furs; that they were placed in a trunk and locked; that they were then in good condition; that said trunk was at the time stated delivered to the plaintiff in ''error, the Pennsylvania Company, at the city of Wooster, Ohio, for shipment to Dresden, Germany; that the charges thereon were duly paid; that a bill of lading was issued therefor by the agent of said company at said city of Wooster and delivered to the defendant in error, and that when said trunk was opened at Dresden said furs were missing and found to have been taken out of or stolen from said trunk in transit between the said cities of Wooster, Ohio, and Dresden, Germany, but where said furs were taken out of or stolen from said trunk is not disclosed in the evidence, although it does appear that the weight of said trunk at the city of Baltimore, Maryland, was some thirty-seven pounds less than it was when shipped from the said city of Wooster. Passing this but keeping in mind that said trunk was delivered to the plaintiff in error for shipment to the place of destination mentioned, under the conditions already described, and that said furs were found missing, at the place named, what duty, if any, at the time of the trial of said case devolved upon the plaintiff in error to show the degree of care exercised by it over said trunk on its lines of railroad, in view of the allegations contained in said petition and which the evidence at least tended to prove? Granting that a common carrier has the right by contract to limit its liability in the transportation of goods for hire over different routes, does this fact relieve the initial shipping company from the obligation of showing that the loss, if any, did not occur on the line of said company? The plaintiff -in error contends that the loss, if any, is presumed to have occurred while the last or delivering shipper had the custody of said furs, and that no presumption arises that the loss occurred over the lines of the plaintiff in error.

The contract for the shipping of said goods having been made with the plaintiff in error, and the loss having occurred between the time of their shipment and delivery to their destination, notwithstanding the exception made in said bill of lading, we are of the opinion that the trial court did not err in charging the jury that the burden of proof was upon the plaintiff in error to show that said loss did not occur upon its lines of railroad. The fact that said furs were lost or stolen somewhere along the lines of the different carriers transporting them is presumptive evidence of negligence, and to relieve the plaintiff in error from such presumption we think it was its duty not only to show that the loss did not occur on its lines, but also to show that proper care was exercised to prevent it, and the trial court in so instructing the jury, in our judgment, did not err. This view appears to be supported by decisions in several Ohio reported eases, among which are Graham & Co. v. Davis & Co., 4 O. S., 362; Union Express Co. v. Graham, 26 O. S., 596; Penna. Co. v. Yoder, 25 O. C. C., 32.

Other cases in other jurisdictions might be cited sustaining the same doctrine. It follows that the judgment of the court of common pleas will be affirmed.

Powell, J., and Houck, J., concur.


source: Caselaw Access Project

author: Pollock, J.

license: Public Domain

text:
    INSURANCE COMPANY ESTOPPED FROM DENYING LIABILITY.
    Court of Appeals for Portage County.
    National Insurance Company, of Cincinnati, v. J. R. Roberts & Sons.
    Decided, May 26, 1915.

      Fire Insurance—Knowledge of the Agent Who Wrote the Policy is Knowledge of the Company—Ms to the Manner in Which the Store Room Covered by the Policy is Lighted—Condition of the Policy with Reference to Lighting Held to Have Been Waived.

    When the agent of a fire insurance company, who is authorized to make contracts of insurance, collect the premium and deliver the policy, knew at the time he made the contract, received the premium and delivered policy, that the store room in which the stock of merchandise insured was kept was lighted by gas generated on the premises, the insurer is bound, in case of a loss which was covered by the policy, notwithstanding the policy contained a condition that “this entire policy (unless otherwise provided by agreement endorsed thereon or added thereto) shall be void * * * if illuminating gas or vapor be generated in the described building (or adjacent thereto) for use thereof,” and there was no agreement endorsed thereon, permitting the generation of gas on the premises for such purposes.

      J. L. Kohl and H. T. Loomis, for plaintiff in error.
    W. J. Becldey, contra.
   Pollock, J.

This is an action in error brought to reverse a judgment recovered in the court of common pleas of this county, in an action wherein the defendants in error were plaintiffs ,and the plaintiff in error was defendant.

In the action in the court below Roberts & Sons brought suit to recover on a policy of fire insurance issued on January 3, 1912, for one year, covering a stock of dry goods, groceries, etc., which on the 22d of February, 1912, was destroyed by fire.

They allege that they had performed all the conditions of said policy to be performed. To this petition the insurance company filed an answer containing several different defenses, but it is only necessary now to refer to what was denominated the sixth defense. In this defense it was alleged that the policy upon which suit was brought contained a condition that:

"This entire policy unless otherwise provided by agreement endorsed thereon or added thereto shall be void * * „ # if illuminating gas or vapor be generated in the described building (or adjacent thereto) for use thereof.”

It is further averred that Roberts & Sons maintained and operated on the premises a certain apparatus for generating illuminating gas from gasoline for use thereon, and so kept, used and allowed gasoline in said premises; that it was not otherwise provided by agreement endorsed on said policy or added thereto as provided in the conditions of this policy.

To this answer the plaintiff below replied that at the time that said insurance was written the agent of the defendant company, who had authority in its behalf to write this insurance and deliver the policy, made examination of the premises and well knew the manner and way in which said premises and buildings were lighted and were to be continued to be lighted, and agreed that said provision was to be of no effect and force, and that no change was made in the condition of the premises in that regard from the time the insurance was written until the time of the fire.

The evidence on the trial of this case showed that there was no written application for this insurance made and signed by the plaintiffs below, but that the agent of defendant below who made the contract of insurance knew before and at the time he entered into the contract of insurance, that the building was lighted from a gasoline plant on the premises which generated gas or vapor; that this agent was furnished by the company with blank insurance policies executed by the proper officers of the company; that he was authorized to make contracts of insurance on behalf of the company, fill in the blank insurance policy, collect the premium and deliver the policy.

The court charged the jury that if, at the time of the issuing of this policy, the agent then knew that the building was then and had been lighted by the -use of gasoline turned into vapor—• as it is now conceded it was lighted—then the company in this case is estopped from setting up that defense, and that provision of the policy so broken would not defeat the plaintiffs in their right of recovery. Objection was made to the introduction of evidence showing the knowledge of the agent who insured the property of the manner the building was lighted, and also to the charge of the court in that regard. These objections were overruled and px'oper exceptions noted.

It is held with practical unanimity by the courts of the several states that—notwithstanding the provisions of the policy—an insurance company is estopped from defending on the ground that the policy is void, even if the manner in which the property was being used at the tihxe of the insurance was prohibited by the provisions of the policy, if no application stating the condition of the property has been made and signed by the insured, but the contract of insurance has been made by the agent from his own knowledge, and he at the time he was entering into the insurance had full knowledge of the true condition of the property which he was insuring, and the agent had been furnished with blank policies of insurance by the insurance company, authorized to make contracts of insurance, collect the premium and deliver the policy. First volume, Clement on Fire Insurance as a Valid Contract, page 416, Rule 12; and page 418, Rule 16; and cases cited under these rules; and Second volume of same, page 106, Rule 40; and page 350, Rule 33, and cases cited under these rules; First Joyce on Insurance, Section 282; Peoples Fire Insurance Association v. Goyne, 16 L. R. A. (N. S.), and note by author of this ease; Western National Insurance Co. v. Marsh, 125 Pacific, 1094; Hartley v. Pennsylvania Ins. Co., 98 N. W., 198; Bennett v. North British, etc., Ins. Co., 81 N. Y., 373; Farmers Ins. Co. v. Nixon, 2 Col. App., 265.

It is true, that the reasons given by the several courts for their decisions are not uniform. In some cases it is based on the ground of a waiver by the agent of this condition of the policy, and by others upon the ground that the company is estopped by the action of its agent from denying that the policy was void from its inception. But whatever the reason given, the principle underlying all the cases rests upon the legal principle, that the facts known to the agent at the time he entered into the contract, within his apparent authority, are the knowledge of the company; and that a fraud would be perpetrated if the insurer were permitted, after a loss had been incurred, to escape a liability on grounds which it knew, under the terms of the policy, rendered it void at its inception. When the agent knew, .at the time he was entering into the contract, that the store room containing the property insured was lighted in such a manner that, according to the conditions of the policy, the insurance was void, he was free to either refuse the insurance on the property or accept the risk in the condition that he knew the property to be in. He did the latter, and the company, after the loss, should not be permitted to deny that its policy had taken effect.

Roberts, the agent of the insurer, authorized to make contracts of insurance in its behalf, knew that the policy which he delivered as evidence of the contract was void and that the insured, by the terms of that policy, had received no consideration for the premium paid and was deceived in the belief that his property was insured when it was not. To prevent the perpetration of such a fraud the courts have very generally held that the insurer can not, after loss of the property covered by the contract of insurance, escape liability by taking advantage of conditions that it knew, through its agent, at the time it entered into the contract, rendered the policy void.

But it is urged that- the Supreme Court of this state has held otherwise in the ease of Insurance Company v. Titus, 82 Ohio St., page 161. In that case the policy contained' a provision in regard to incumbrance that rendered it void, similar to the provision in the policy in this action, which we are considering. The facts as stated by the court, so far as this condition of the .policy is concerned, are as follows: the original policy was for $600, and there was an additional insurance added to this policy of $200. At the time of the original insurance the property was incumbered with a mortgage of $2,500 which was noted in the policy. After the insurance this mortgage was released and a mortgage for $4,000 plaeed on the property. The insurance company, as a defense in that case, alleged that subsequent to the issuing of that policy and prior to any loss the insured, Avithout any agreement therefor being endorsed on or added to the policy of insurance, violated the terms and conditions of the policy, and that, at the time of the loss by fire, the policy Avas Avholly void. No place in the statement of fact or in the opinion is there any intimation that any insurance was placed on this property after it was mortgaged for $4,000, or that the agents had any knowledge of the increase of incumbrance at the time they made the additional insurance, except in a request to charge which states that the $200 additional insurance was added to the $600 policy after the agents who added the additional insurance had knowledge of the subsequent mortgage. The court, neither in the syllabus of the ease nor the opinion refers to the fact that the agent who entered into the contract of insurance had knowledge at the time the insurance was entered into of this additional incumbrance. All they say in regard to the knowledge of the agent in the syllabus is, “simply because its agent had notice or knowledge of the existence of a mortgage incumbrance and received premiums.”

We think that, if the Supreme Court of this state had intended to announce a principle that is contrary to what seems to us to be the great weight of authorities, they would have said so in terms that could not be mistaken. We do not overlook the fact that in the opinion in that ease the Supreme Court cites the case of Northern Assurance Company v. Grandview Building Association, 183 U. S., 308. This ease sustained the principle contended for by the insurance company. This case wa,s decided by a divided court, and the courts of last resort in a number of the states have, after referring to this case, refused to follow it, notwithstanding the great weight that is usually given to a decision of that court.

We feel that the principle announced by the great majority of the courts should control in this ease; that the delivery by the agent of the insurer of the policy in suit, with knowledge that the building in which the property insured was kept, was lighted with gas generated on the premises, estops the insurance company from denying liability on that ground in regard to his property which, under the terms of policy, would render the insurance void.

The judgment is affirmed. Exceptions noted.

Metcalfe, J., and Spence, J., concur.


author: Houck, J.

text:
    SUFFICIENCY OF AN AFFIDAVIT IN REPLEVIN.
    Court of Appeals for Muskingum County.
    A. B. Smith v. Lizzie Feasley.
    Decided, November 18, 1916.

      Replevin—Proceeding Properly Based on Affidavit—Verified by Attorney for the Plaintiff.

    An affidavit in replevin is not a pleading, and its verification is not governed by Section 11358, limiting the causes in which, the verification may be by an agent or attorney, but rather by Section 12052,. making an affidavit of an agent or attorney of the plaintiff sufficient.

      H. G. Wine, for plaintiff in error.

      A. A. George, contra.
   Houck, J.

Plaintiff in error contends that the common pleas court erred in sustaining a motion to the affidavit in replevin of the plaintiff below, the plaintiff in error, and also in dismissing the petition in the case. The affidavit in replevin was made by the attorney for the plaintiff, and the defendant below, the defendant in error, urges that it is not sufficient in law because it does not comply with the provisions of Section 11358 of the General Code of Ohio. Upon the other hand, the plaintiff in error contends that the verification of said affidavit in question was made under favor of Section 12052 of the General Code of Ohio, and that the same is in full compliance with law.

Upon an examination of these sections of the General Code, we are fully convinced that the claim of plaintiff in error is sound. An affidavit in replevin is not a pleading, and therefore Section 11358 of the General Code does not apply to the verification of, or as to who is authorized in a replevin case to make the affidavit, but Section 12052 governs. ■ The affidavit under consideration, as we view it, fully complies with all the provisions of Section 12052 of the General Code. Therefore, from our examination of the record in this case, we find error therein prejudicial to the rights of the plaintiff in error, and the judgment of the common pleas court is reversed and the cause remanded to that court with instructions to overrule the motion to the affidavit in replevin and the order dismissing the petition is set aside.

Cause remanded to the common pleas court with instructions to carry out the order of this court.

Shields, J., and Powell, J., concur.


text:
    MOTORCYCLIST INJURED BY BARRICADE ACROSS THE ROAD.
    Court of Appeals for Licking County.
    W. S. Gregg et al v. Albert B. Clapham et al.

    Decided, March Term, 1917.

      Negligence—Fence Wire Stretched Across a County Road in Process of Improvement—Motorcycle Collides with the Wire and One of the Riders is Injured—Whether or Not the Road Wets Closed a Question for the Jury—Charge of Court.

    1. In an action for injuries resulting from a motorcycle colliding with an obstruction in the road, placed there by contractors as a barricade while the road was being improved, it is not error to charge the jury that if the machine “was being driven at a higher rate of speed than twenty miles an hour at the time of the accident, then the boys so riding and driving the machine were violating the laws of Ohio, and such act would be evidence of negligence on their part, and should be considered by you on the subject of contributory negligence.”
    2. Nor was it error to refuse to charge that “if you find from the evidence that the witness Beaver, in the management of the motorcycle, did not use ordinary care and that his want of ordinary care was the proximate cause of Leon Clapham’s injuries, then the said Leon Clapham is charged with the negligence of said Beaver, and there can be no recovery in this action.”
    3. Whether or not the barricade which had been placed across the road made it a closed road, was a question of fact for the jury, to be determined in the light of the surrounding circumstances and the law applicable to the case.

      Marshall & O’Neil and Fitzgibbon, Montgomery & Black, for plaintiffs in error.

      Phil. B. Smythe, contra.

      For previous opinion in the same case, see Brownfield v. Clapham, 25 C.C. (N.S), 443.

   Houck, J.

This is a proceeding in error seeking to reverse the judgment of the Common Pleas Court of Licking County, Ohio. The parties here stand in the reverse order to that in which they stood in the court below. The petition, in substance, averred that the plaintiff was the father of one Leon Clapham, who was under eighteen years of age and who lived with and was supported by the plaintiff, and the plaintiff was entitled to the services of the said Leon Clapham; that on the 13th day of July, 1913, the board of county commissioners of Licking county, Ohio, was engaged in repairing a certain public road running from Newark to Granville in said county, 'by covering the surface of said road with cement or concrete; that on said date the defendants, W. B. Gregg and H. D. Fletcher, were partners, and as such partners were engaged in performing the work of said repair under a contract with said board of county commissioners, whereby said board paid said Gregg and Fletcher a certain definite sum of money for furnishing the materials and the labor necessary for said repair; that on said 13th day of July, 1913, said road was open for travel and was on said date, and for a long time prior thereto, in general use by the traveling public with the knowledge and consent of said defendants; that on said day the defendants had stretched a wire across said road and about three feet above the surface thereof, and said wire was in such a position on said day, and that said wire was not marked or located by any signal or device to warn passengers on said road that the same was in such position, and said wire could not be seen by persons in vehicles on said road; that on said day, while said Leon Clapham was lawfully traveling on and over said road on a motorcycle, and without any fault or negligence on his part, he ran into and against said wire and was thrown with great violence to the surface of said concrete, suffering thereby a broken nose, a broken jaw and a fracture of his skull, and was otherwise bruised and injured; that by reason of said injuries the plaintiff was thereby deprived of the services of said Leon Clapham, to his damage in the sum of one thousand dollars.

The plaintiff further alleges in his petition that he had expended the sum of $367.25 in the necessary and proper care of the said Leon Clapham by reason of said injuries, and that said injuries were caused by the negligence and carelessness of the defendants in stretching said wire across said road and leaving the same unguarded, and in not providing some method of warning travelers of its presence in said location. That the injuries complained of were without fault on the part of said Leon 'Clapham and were caused by the negligence of the defendants, and prayed for judgment against said defendants in the sum of $1,367.25.

The answers filed by said defendants were in the nature of general denials to all of the material allegations contained in plaintiff’s petition, and further alleged that whatever injuries resulted to the said Leon Clapham were caused by his own fault and negligence and not by the fault of the defendants, or either of them.

The cause was submitted to a jury and a verdict returned in favor of the plaintiff in the sum of $300.75. The usual motion for a new trial was filed, heard and overruled, and a judgment entered on the verdict. A bill of exceptions was prepared, containing all of the testimony and evidence offered at the trial below, together with a petition in error, and was filed in this court for review.

Numerous grounds of alleged error are set forth in the petition in error, but we do not deem it necessary to discuss any of the alleged errors, save and except those urged by counsel for plaintiff in error in oral argument.

As one of the grounds for a reversal of the judgment below learned counsel for plaintiff in error insist that Leon Clapham was, at the time when he received the injuries complained of, a trespasser. We have examined the bill of exceptions with reference to this alleged claim and we are free to say that from the proven facts upon this question, and applying the law applicable thereto as to who is or who is not a trespasser, we are bound to and do reach the conclusion that this claim of alleged error is not well taken.

It is further urged that the trial judge refused to give a special request' offered by defendants below with reference to Leon Clap-ham being guilty of negligence per se which resulted in the injuries he received. We have examined the record, but have been unable to find any such written request so refused by the trial judge. On page 312 of the bill of exceptions, we find that counsel for defendants below requested the court before argument, in writing, to give to the jury the following instruction, which was given by the court:

“If you find from the evidence that the motorcycle was being driven at a higher rate of speed than twenty miles per hour at the time of the accident, then the boys so riding and driving said machine were violating the laws of Ohio, and such act would be evidence of negligence on their part and should be considered by you upon the question of contributory negligence. ’ ’

This charge as to the law was given at the request of the defendants below, and we do not see how they can now complain. We think as a proposition of law it is sound and applicable to the proven facts in the ease at bar.

Counsel for plaintiffs in error, as another ground for a reversal of the judgment in this case, insist that the trial judge was in error when he refused to charge upon the subject of imputed negligence, as contained in the special request found on page 316 of the bill of exceptions, which was requested to be given by the defendants below, and which the court refused to give. This special request reads as follows:

‘ ‘ If you find from the evidence that the witness Beaver, in the management pf the motorcycle, did not use ordinary care, and that his want of ordinary care was the proximate egnse of Leon Clapham's injuries, then the said Leon Clapham is charged with the negligence of said Beaver, and there can be no recovery in this action.”

We do not feel it necessary to discuss at length this proposition of law. We think, upon its face, it clearly shows, in the light of the established facts in this case, that if the court had' given this charge it would have been improper. We are free to say that in our opinion the court committed no error in refusing to give this request to the jury.

It is strenuously urged by the plaintiff in error that the road in question was not opened for public travel, but that it was so barricaded and protected by the defendants below that it was not an open road, but was, in fact and in law, a closed road. The question as to whether or not the road at the time of the injury complained of was or was not a closed road was a question of fact to be determined by the jury in the light of the evidence offered upon this subject and the law applicable thereto, as charged by the court. The jury having passed upon this fact, and found adversely to the defendants below, from our examination of the general charge and propositions of law submitted to the jury bearing upon this question we are bound to and do hold that there is no prejudicial error in this respect in the record. The general charge of the court covers every phase of the case at bar, and, as we view it, was a clear and concise statement of each and all of the propositions of law applicable and pertinent to the established facts, and covered each and all of the issues raised by the pleadings in the case.

Upon our examination of the record in this case we can reach but one conclusion, and that is that there is no error contained therein which is in any way prejudicial to the substantial rights of the plaintiffs in error, and, therefore, the judgment of the common pleas court is affirmed.

Powell, J., concurs.


author: Farr, J.

text:
    ANCESTRAL AND NON-ANCESTRAL PROPERTY DISTINGUISHED-
    Court of Appeals for Mahoning County.
    Albert J. Beight v. Mary C. Organ et al.
    Decided, February Term, 1917.

      Wills—Estates by Devise—Estates by Purchase—Ancestral and Eon-Ancestral Property.

    Where a testator in his last will and testament provides as follows, “I give, devise and bequeath to my daughter, A. Y., my farm In Poland Township, on which I now reside, consisting of one hundred acres of land, to be to her and her heirs and assigns forever, providing she pay to the executor or executors of my estate, the sum of four thousand dollars. * * * The money arising from the sale of my farm, as hereinbefore bequeathed to my daughter, A. Y., * * * shall than be divided share and share alike. * * * I do hereby nominate and appoint my son J. Y. without bond, executor of this my last will and testament, and give him full power to convey my farm to my daughter, A. Y.” creates and invests said daughter with an estate by “purchase” and not by “devise.”
   Farr, J.

This cause comes into this court on appeal from the court below. Adam Yarian, late of Poland township, this county, died testate August 31, 1910, and thereafter his last will and testament was duly admitted to probate in the probate court of this county. Said decedent was twice married; his first wife left one child surviving her, Rebecca Yarian Beight, who, at her decease, left the following named children: Albert J. Beight, Rolandus E. Beight and Mary C. Organ. By the second wife, whom testator survived, the following named children were born: John Yarian, Elizabeth Crum, Samantha Rummel, Anna Yarian and Jonas Yarian.

By the terms of said last will and testament it was provided, among other things, in Item II as follows:

“I give, devise and bequeath to my daughter, Anna Yarian, my farm in Poland township, on which I now reside, consisting of one hundred acres of land, to her and her heirs and assigns forever, providing she pay to the executor or executors of my estate the sum of four thousand dollars on or before three years from the date of my decease.”

And in the second paragraph of the same item the following language is used:

‘ ‘ The money arising from the sale of my farm, as hereinbefore bequeathed to my daughter, Anna Yarian, and all my personal property moveable property, household furniture and money and valuable papers, which I leave at my decease, shall be equally divided, share and share alike.”

And at the conclusion of said will it is provided as follows:

“I do hereby nominate and appoint my son, Jonas Yarian, without bond, executor of this, my last will and testament, and give him full power to convey my farm to my daughter, Anna Yarian, or if she should not elect to take the farm at the price mentioned, then my executor shall sell the farm to the purchaser or purchasers the same as I could have done.if I were living.”

Jonas Yarian qualified as executor of said will and the said Anna Yarian, having elected-to take said farm upon the conditions above named, paid to said executor the sum of four thousand dollars and received in turn from him a deed for said farm, dated April 3, 1911, which deed is now of record in this county. The said Anna Yarian died June 3, 1911, unmarried, intestate and without issue, and left surviving her the brothers and sisters above named of the full blood, her only heirs at law.

Jonas Yarian qualified as administrator and duly administered her estate. Said farm was sold and the proceeds distributed equally among her brothers and sisters above named.

Albert J. Beight, son of decedent Anna Yarian’s sister of the half blood, Rebecca Yarian Beight, filed a petition for partition in the court below on April 4, 1915, claiming to be a tenant in common of said Poland township farm; that it was an estate by devise, instead of by purchase, and therefore ancestral rather than non-aneestral property. To this petition general denials were filed by the brothers and sisters of Anna Yarian, deceased. Judgment was rendered for defendants in the court below and comes to this court on appeal.

The whole issue is whether the language of said will above quoted creates an estate by “devise” or “purchase”; if by devise it is ancestral property and Section 8573, G. C., applies; if by purchase then it is non-ancestral property, and Section 8574, G. C.,. applies.

Counsel for petitioner, in a well prepared brief and in oral argument cites and relies upon Paragraph 3 of above Section 8573, which provides that if an intestate leave no husband or wife, an ancestral estate shall pass to and vest in the brothers and sisters of the blood of the ancestor from whom the estate came or their legal representatives whether of the whole or half blood, and it is urged that the foregoing, taken in connection with the fore part of said Item II, as follows:

“I give, devise and bequeath to my daughter, Anna Yarian, my farm in Poland township,”

is sufficient to determine it to be ancestral property; that is, it is urged that in order that defendants prevail, it must be absolutely determined that said estate came to Anna Yarian, not by descent, devise or deed of gift, as provided in said Section 8574, G. C., or, in other words, counsel relies partly on the above wording, “I give, devise and bequeath” to determine the issue here.

The foregoing is and long has been the usual and customary language used as introductory to an item of a will, and might be determinative of the issue, if no other and different language were used; it must be observed, however, that to determine the meaning of a will it must be read and considered all together and the latter part, indifferent from that which precedes, must prevail.

Counsel for appellant cites Patterson v. Lamson, 45 O. S., 77, which does not seem in point with the case at bar, unless it is paragraph 4 of the syllabus, which holds that where a father purchased and paid for land for a wedding gift to his daughter, and the vendor conveyed directly to the daughter, and the daughter died intestate and without issue, that the title did not come to her by deed of gift from an ancestor. Nor is the case of Brower v. Hunt, 18 O. S., 311, believed to be in point. The 27 Ency. of L. (2d Ed.), 300 and 303, is cited to support the contention that the character of the estate is determined by the legal title, and numerous Ohio cases are quoted as sustaining that view, which is correct but does not determine the issue here; for while equities are inheritable, the course of descent is controlled by the legal ’title. Many other Ohio cases are cited, together with 1 Rockel’s Ohio Probate Practice, Sections 907 to 912, all of which discuss and properly define estates by ‘ ‘ devise, ’ ’ but do not clarify the mental atmosphere in the ease at bar because the term “devise” is defined only generally and abstractly, and by no means in a comparative sense with “purchase,” as it must be in the case at bar. The foregoing authorities therefore must be held to apply it in its generally accepted sense, which Mr. Bouvier defines in Volume 1, at page 861, as follows:

“Devise. A gift of real property by a last will and testament. ’ ’

In 3 “Words and Phrases,” p. 2017, it is defined:

“The term ‘devise’ is the proper term to be used in a will to denote a gift of real property”

and citing many cases in which it is so defined.

“A ‘devise’ is a gift of real property by a last will and testament.” In re Daily’s Estate, 89 N. Y. Suppl., 538; Hathaway v. Smith, 65 Atl., 1058; 2 Words & Phrases (2d Series), 29.

And so the authorities might be multiplied. Was the farm a gift to Anna Yarian or did the testator use the term “devise” in a broader sense or inadvertently?

Mr. Bouvier, in Volume 3, at page 2771, defines “purchase” as follows:

“Purchase. A term including every mode of acquisition of estate known to the law, except that by which an heir on the death of his ancestor becomes substituted in his place as owner by operation of law.” 2 Washb. on R. Prop., 5th Ed., 401; Hoyt v. Van Alstyne, 15 Barb. (N. Y.), 568; McCartee v. Orph. Asylum Assn., 18 Am. Dec., 516.

A title by purchase is one that is vested in a person by his own act or agreement. 2 Blk. Com., 241.

A title by devise is a title by purchase. Allen v. Bland, 134 Ind., 78; 33 N. E., 774.

In its more limited sense, purchase is applied only to such acquisitions of lands as are obtained by way of .bargain and sale for money or some other valuable consideration. Cruise, Big. title 30, Secs. 1-4; Hurst v. Hippo, 1 Dall. (U. S.), 2, I L. Ed., 19; 32 Cyc., 1264-1265; 64 S. W., 792; 32 Cyc., 1267; 8 Words & Phrases, p. 6983; Grant v. Bennett, 96 Ill., 535; 4 Words & Phrases (2d Series), 61.

In Carder v. Commrs, 16 O. S., at page 369, it is said:

“Every lawyer knows that title by purchase is title by any means except descent, and, of course, includes title by devise. ’ ’

The foregoing are partly common law definitions, but the common law is the basis of the Ohio statutes on the same subject, except the statutes limit or extend the provisions of the common law as the case may ,be, and the foregoing are principally for the purpose of comparison. The English common law has been so far modified in this state as to create the two classes by statute, ancestral and non-ancestral property, and so Mr. Walker defines it in his American Law (10th Ed.), at page 392, as follows:

“I am here speaking of the doctrines of the English law. In this country, or at least in this state, they have been so far altered, that ancestral property, as will be seen hereafter, includes all realty acquired from an ancestor, either by descent, devise or deed of gift, where blood is the only consideration; and purchased property includes realty acquired in any other way.”

And continuing the' author very pertinently, at page 418, observes as follows:

“By ancestral property, then, is meant that realty which came to the intestate from his ancestor, in consideration of blood, and without a pecuniary 'equivalent/ and which must have come either by descent or devise from a now dead ancestor, or by deed of actual gift from a living one.”

The foregoing is unmistakably to the effect that ancestral property is properly acquired where blood is the only consideration. And again the author observes as follows:

“And by non-aneestral property is meant all personalty, and that realty which came to the intestate in any other way, whether by purchase from his ancestor or from a stranger, for an equivalent paid, or by actual gift from a stranger, so that the consideration of blood is out of the question; for this makes the sole distinction.”

In the foregoing the author amplifies his definition, making his distinctions very clear. Therefore, “ancestral” property under the Ohio statute is property which comes from an ancestor, the only consideration for which is “'blood” or relationship, and without a pecumiary equivalent. “Non-ancestral” property comprehends all other kinds and there is no refuge from that conclusion. The foregoing is supported by the above author at pages 391, 410 and 411, and by 27 Eney. of L. (2d Ed.), p. 301, where it is said:

“New acquisitions and acquired estates. By new acquisition is meant an estate which the intestate acquired by his own exertion or industry, or by will or deed from a stranger to his blood. In other words, it is an estate obtained by any means other than by descent, gift, or gratuitous devises from an ancestor.”

The farm in question was not a gratuitous devise; it was, therefore, a “new acquisition.” West v. Williams, 15 Ark., 682; Frick Coke Co. v. Langhead, 302 Pa. St., 172; 52 Atl., 172; Brewster v. Benedict, 14 O., 368.

In the case of Martin et al v. Martin, 135 S. W., 348, it is held that land is considered a “new acquisition” if derived from any source other than by descent, devise or gift from any relative in the parental line, as by a son from father or mother for a valuable consideration. Frauenthal, J., in the opinion observes, as follows:

“If the estate is obtained by any means other than descent, gift or gratuitous devise, then it is a new acquisition.”

Other parts of said opinion are to the same effect. And the case of Brown v. Whaley et al, 58 O. S., 654, is cited, the syllabus of which reads as follows:

“A deed of real estate from a father and mother to their daughter, in consideration of our love and affection for our daughter, and in consideration of the dutiful obedience and faithful services to us of our daughter, aaid in further consideration of one dollar to us in hand paid by our said daughter, is not a deed or gift, and the title acquired under such deed came to the daughter not by deed of gift but by purchase.”

And at pages 665 and 666, Burket, J., in the opinion quotes, with manifest approval, the above paragraphs from Walker’s American Law, and further observes as follows:

“how then shall it be solved when the considerations are thus mixed. The title came either by deed of gift or by purchase. It could not come by both; and legally speaking, it could not come partly by deed of gift and partly by purchase. The law as above quoted from Walker solves the question. He says that to make ancestral property * * * there must be no other consideration than that of blood. Here there was other and additional consideration and therefore the title came not by deed of gift. As the title came not by deed of gift it came by purchase. * * •

“Moreover, the consideration of one dollar alone is sufficient to support the deed as between the parties, and to give it the character of being upon a valuable consideration, as contra-distinguished from a good consideration.”

It is true that the foregoing is merely dictum, but it clearly indicates by what process of reasoning a conclusion was reached, and is in point in the case at bar.

Adam Tarian provided that his daughter should pay to his executor or executors the sum of four thousand dollars and upon that condition, and no other, she should receive a deed from his executor; and for such deed he had a perfect right to make provision, and which was in full keeping with his own definitely expressed purpose as stated in the second paragraph of Item II:

“The money arising from the sale of my farm.”

Adam Yarian regarded it as a sale, for he expressly so stated, and very properly so, for by no process of reasoning could it be considered a gratuitous devise. No doubt the testator believed that his daughter Anna was getting her own share of his estate aside from the payment of said $4,000, but if so, it is not determinable or divisible here. All that said will carried as gratuitous to Anna was the option in her favor to purchase at the price fixed. 'She elected to take under said option, paid the price, received a deed and beyond question took the estate by purchase, making it non-ancestral property; but suppose it should be held to be ancestral property, the effect of such holding would be to divert $4,000 from the estate of Anua Yarian, deceased, from its proper channels of descent, to the estate of Adam Yarian, deceased, from which it must follow partly different lines of descent, thereby working injustice and injury to the heirs of Anna Yarian. Such is contrary to the spirit of the laws relating to such property in this state.

Judgment is therefore rendered for defendants and the petition dismissed.

Pollock, J., and Metcalfe, J., concur.


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

text:
    YOUNG WOMAN INJURED BY A COFFEE MILL.
    Court of Appeals for Hamilton County.
    The P. & C. Schneider Company v. Lulu Wagner.
    Decided, May 22, 1916.

      Negligence—Cleric StrucTc by the Revolving Handle of a Coffee Mill— Machine Not Inherently Dangerous and No Basis Presented for Recovery.

    There is nothing inherently dangerous about a coffee mill which is operated by hand and is equipped with a large balance-wheel in motion for a short time after the operator ceases to propel it, and there can be no recovery by a clerk in a grocery who passed such a mill before the handle ceased to revolve and was struck by it and injured.

      Cohen, Mach & Hurtig, for plaintiff in error. -

      Samuel L. Hagans and Blach, Swing & Blade, contra.
   Jones (E. IL), P. J.

The plaintiff below, Lulu Wagner, was employed by the defendant company as a clerk in its grocery. There was in this grocery a large coffee-mill operated by hand. Upon the side of this coffee-mill was a large fly-wheel, to the rim of which was attached a handle. Between the end of this handle and the wall or shelving there was a space of seventeen and one-half inches. Some employee who had used this mill had left the wheel in motion, and Miss Wagner while in the performance of her duties and while passing through the space above described was struck by the revolving handle and severely injured. She recovered a judgment below for $2,500. This proceeding is brought to reverse the judgment.

The petition charges the company with negligence in four particulars:

1st. Failure to guard said mill, alleging that it is a dangerous machine.

2d. Placing of the mill in a dangerous position, with a space of not more than two feet between it and the shelves.

3d. Allowing trash, boxes- and other material to accumulate in the aisle so that there was not sufficient space to allow one to pass in safety.

4th. Another clerk left said' mill revolving rapidly.

'The answer admits the employment of Miss Wagner, the business in which defendant was engaged, and denies everything else in the petition.

At the close of plaintiff’s evidence below, and again at the close of all the evidence, defendant moved for an instructed verdict upon the ground that no act on the part of defendant constituting negligence was shown. The overruling of these motions by the trial judge is principally relied upon for a reversal of the judgment. The question thus raised being fundamental is entitled to first consideration, and disposes of the case, in the view we take of it.

The evidence shows that the injury received by Miss Wagner was a serious one. But while most injuries from violence are the result of crime or of culpable negligence on the part of some one, it is not always so. Many personal injuries are received for which the law provides no remedy or recompense. Negligence, in its legal sense, is the failure to exercise ordinary care —not the highest degree of care. It was ordinary care that defendant in error owed to Miss Wagner. Wherein did he fail to exercise it? What act of negligence by him was the direct and proximate cause of her injury ? Should he in the exercise of ordinary care have foreseen the injury as the probable result of the coffee-mill or its revolving wheel? These are questions raised by the record and briefs in this ease, and must be answered. We can give but one answer, namely, that there is no evidence to support the judgment below. The result of that judgment is to exact from the one against whom it was rendered a very high and unreasonable degree of care.

There was nothing inherently dangerous about the coffee-mill. It can not be regarded as a dangerous machine. To leave the wheel in motion, with the power removed, in the place and under

the conditions described, can not be actionable negligence. The danger, if any, was as obvious to Miss Wagner as to any one else. If there was danger she should have avoided it by going another way, or by keeping away from the handle while passing through the aisle. There was a way by which she could have reached the part of the store to which she was going without passing the mill.

But in deciding this ease against her we do not act upon the theory that she was negligent, and for that reason can not recover. This reversal is upon our conviction that there is in the record no evidence of negligence on the part of the defendant.

The injury might have been avoided by the exercise of great care. Such care is not exacted by the law. In law’s domain this occurrence must be regarded as an accident, for which no one is answerable and for which no remedy is provided.

The judgment will be reversed, and the judgment which the lower court should have rendered will be entered here.

Judgment reversed.

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


author: Richards, J.

text:
    CONDITIONS PRECEDENT TO RECOVERY UNDER A BREACH OF GUARANTY.
    Court of Appeals for Williams County.
    Bell Brothers v. Robinson et al.
    Decided, November 10, 1916.

      Sales—Stallion—Breach of Guaranty—Return and Acceptance of An- ■ other—Conditions Precedent to Recovery of Damages, When.

    A contract for the sale of a stallion guaranteed that he should be a “satisfactory sure breeder,” provided he keeps in as sound and healthy condition as he now is and has proper care and exercise, and the contract further provided that in case of a breach the seller agreed to take the stallion back and the purchaser agreed to return him and accept. another of equal value, Held: That in the event of a breach the duty to return the stallion was a condition precedent to the right to recoup damages in an action brought to recover the purchase price.

      B. L. Starr, D. A. Webster and Boss W. Bunch, for plaintiffs in error.

      C. A. Bowersox and Edward Gmdern, contra.
   Richards, J.

On December 13, 1911, A. N. Robinson & Son purchased of Bell Brothers a Percheron stallion named Idem, and as a part of the contract a written guaranty was made and delivered, reading as follows:

‘ ‘ Guarantee.

“We have this day sold the Percheron Stallion ‘Idem’ No. 78705 (82891) to A. N. Robinson & Son of Bryan, Ohio, in consideration of the sum of sixteen hundred dollars, and we guarantee the said stallion to be a satisfactory sure breeder, provided the said stallion keeps in as sound and healthy condition as he now is and has proper care and exercise.

"If the said stallion should fail to be a reasonably sure breeder with the above treatment, we agree to take the said stallion back, and the said A. N, Robinson & Son agrees , to accept another imported Percheron Stallion of equal value in his place, the- said stallion ‘Idem’ No. 78705 (82891) to be returned to us at Wooster, Ohio, in as sound and healthy condition as he now is by April 1st, 1913.

“Signed:- Bell Bros.

“Accepted: A. N. Robinson.

“Dated at Wooster, Ohio, this thirteenth day of December, 1911.”

At the same time the purchaser executed and delivered to Bell Brothers two cognovit notes, each in the sum of $800, in payment of the purchase price of the stallion. The notes not being paid, two several actions were brought on them and judgment on each entered pursuant to the authority contained in the instruments. Subsequently Robinson made due application to the court in which the judgments had been rendered to have the same suspended or vacated, setting up certain claimed defenses to the promissory notes, and such proceedings were had that these judgments were suspended or vacated and the defendant Robinson let in to make such defenses as he had. The two actions were consolidated and the defendant filed an answer, and, subsequently, an amended answer and cross-petition.

In this pleading he sets up the guaranty and avers its breach and ensuing damages, and further avers by way of counterclaim, that he maintained a suitable stable and kept and attended said stallion for breeding purposes, and that by reason of the failure of the stallion to comply with the terms of the guaranty he was damaged in the sum of $1,800. He further avers as a second counter-claim that the stallion was not a satisfactory sure breeder, nor a reasonably sure breeder, as guaranteed, and that had he been as warranted the defendant would have received for the services of the stallion the sum of $2,700 and more, and that by reason of the failure of the stallion to' comply with the terms of the guaranty he was damaged in the sum of $1,800. The defendant in his pleading further sets up that after the judgments were taken on the cognovit notes executions were issued thereon and levied upon a certain other stallion owned by him, and that by direction of the plaintiffs” the 'same was taken possession of by the sheriff and plaC'éd and-kept in a livery stable for a long period of time, and was thereupon sold to pay the expenses of his keeping. ITe avers that by reason of these facts he has been damaged in the sum of $1,100, for which he asks judgment.

The trial resulted in a verdict and judgment in favor of the' defendant, A. N. Robinson, the jury finding against the plaintiffs and further finding that the defendant Robinson was entitled to recover upon his amended answer and cross-petition • the sum of $843.83. This proceeding in error is brought to reverse this judgment, numerous errors being assigned.

The vital and controlling fact in this ease is the written contract of guaranty entered into between the parties, and their rights depend very largely upon the proper construction to be placed on that instrument. It is to be expected that much diversity in language will be found in the various guarantees which parties make in the sale of property, and because of this diversity of language various decisions have been rendered which at first sight may appear to be in conflict, but which on a closer examination are seen to turn upon the language of the particular instrument of writing under consideration by the court. The written instrument in this case guarantees that the stallion shall 'be a “ satisfactory sure breeder, provided the said stallion keeps in as sound and healthy condition as he now is and has proper care and exercise.” The contract of guaranty further provides that if the stallion should fail to be a reasonably sure breeder with the above treatment, “we agree to take the said stallion back, and the said A. N. Robinson & Son agrees to accept another imported Percheron Stallion of equal' value in his place, the said stallion ‘Idem’ * * * to be returned to us at Wooster, Ohio, in as sound and healthy condition as' he now is by April 1st, 1913.” This instrument must be supplemented by the fact that evidence was introduced tending to show a subsequent oral agreement between the defendant and Mr. Zogg, a representative of the plaintiffs, by which the guaranty was extended for another year or another season, and some evidence was offered tending to show that the horse was tendered back to Mr. Zogg. The plaintiffs deny that such agreement Was made and deny that Mr. Zogg had. any authority to make. any such agreement or to accept a tender of the horse. The evidence further discloses that the stallion was taken sick and died suddenly on or about July 8, 1914. It is not claimed that the stallion was ever returned by Robinson to Bell Brothers at Wooster, or at any other place. ■

The plaintiffs insist that, even if the evidence disclose a breach of the guaranty, the defendant can not recover any damages, because of the failure to return the stallion to Wooster and to accept another as provided by the terms of the contract. In the absence of a contract fixing the remedies of a purchaser of property for a breach of guaranty, the law itself provides the remedies to which the purchaser may resort for such breach. No doubt, however, can exist that the parties to a contract of sale, accompanied with a guaranty, have full power to prescribe what course shall be pursued in the event of a breach. The law gives to parties competent to contract as full authority to agree on the course to be pursued in the event of a breach of the same, as it does to make the contract of sale itself, and, if the contract provides conditions to be performed by the buyer in case of a breach, the buyer must comply with such conditions before he can claim damages' by reason of the breach. This would seem to be an elementary proposition of law and is sustained alike by reason and authority. Authorities which hold that the buyer has an option to pursue either the remedy named in the contract or other remedies allowed by law in the absence of contract, base their conclusions on contracts that are construed to grant an option to the purchaser. Certainly if the terms of the guaranty are such that the purchaser, in the event of a breach, is not required to return the property, but has an option so to do, then the return of the property would not be a prerequisite to the maintenance of his claim for damages. The principle is well stated in James v. Bekkedahl, 10 N. D., 120; 86 N. W. Rep., 226.

A good illustration of the rule may be found in the case of Oltmanns Bros. v. Poland, 142 S. W. Rep., 653. .That was-a ease involving a guaranty on the sale of a stallion that he should be-, a satisfactory and sure breeder, provided he had proper care and .'exercise, .and if he failed lto.be satisfactory .and- a. sure breeder with tbe above treatment, tbe seller agreed to take the stallion back and give to the purchaser another stallion of equal value, provided he was returned to the seller’s barns in as sound and healthy condition as at the time of sale. Unlike the case at bar, the contract did not specifically state that the purchaser ■agreed to accept another stallion, but nevertheless the court construed the course to be pursued, in the event of a breach, as exclusive, and denied relief to the purchaser without a return of the horse within the time specified. In view of the provisions of the guaranty in the instant ease, by which the sellers “agree to take the' said stallion back,” and Robinson “agrees to accept another,” there would seem to be no room for doubt as to the interpretation to be placed on the contract under review, in the event of a breach.

The principle is further illustrated by the case of Standing Stone Natl. Bank v. Walser et al, 162 N. C., 53; 77 S. E. Rep., 1006. Cases which hold the buyer has an election of remedies are easily reconcilable when careful attention is given to the language of the guaranty employed in such cases. For instance, the contract in the case of Love & Co. v. Ross et al, 89 Ia., 400, provided that in the event of a breach the purchaser “could” return the stallion. That language, of course, only gives the purchaser the option so to do and does not deprive him of any other remedy.

The contract in the case of Hefner v. Haynes, 89 Ia., 616; 57 N. W. Rep., 421, provided that if the horse did not give satisfaction it “may be exchanged for another,” and this, of • course, was held to give an option to the purchaser.

The contract in the case of Eyers v. Haddem, 70 Fed. Rep., 648, was construed by the court to give an option of remedies to the purchaser and it was held that the terms of the contract were such as not to make it obligatory upon the purchasers to return the horse. The court uses this, language in the course of the opinion (page 651) :

“It only says that upon his delivery to the sellers without cost, if as sound and in as good condition as when purchased, the sellers will replace him with another horse. It is only by construction that any obligation can be put upon the purchasers to return the horse.”

The difference between that case and the one at bar is apparent when it is remembered that Eobinson “agrees to accept another” stallion. See also Kemp v. Freeman, 42 Ill. App., 500, 501; Rowell v. Oleson, 32 Minn., 288, 290, and McCormick Harvesting Machine Co. v. Fields, 90 Minn., 161.

The difference between the case last cited and the one now under consideration is apparent when it is noticed that in the Minnesota case the provision was applicable only in the event that the machine did not work well, and, as stated by the court on page 164, the provision had no reference to the manner in which the machine was made or the material used or its durability, while in the case now under consideration the provision is specifically made as broad in terms as the language of the guaranty itself.

Many other eases might be cited, but- it is unnecessary. The cases are collected and reviewed and the distinctions indicated in a note to Wasatch Orchard Co. v. Morgan Canning Co., 12 L. R. A. (N.S.), 540.

The language of the contract relating to a return of the stallion in the event of a breach of the warranty is imperative, and, in the absence of a compliance by the purchaser with the provision for a return of the stallion within the time limited, he can not avail himself of the breach when an action is brought to recover the purchase price. The rule as thus announced is clearly enunciated in 35 Cyc., 437, 438.

It is not important to determine the extent of authority invested in Zogg as a representative of plaintiffs, for, if he had full authority, and if the contract for an extension of time was made as claimed by the defendant, still the horse was not returned within the time as thus extended.

On the trial of the case the defendant assumed the burden of proof, and having introduced his evidence and rested, the plaintiffs introduced their evidence and rested. Thereupon the plaintiffs moved the court to instruct the jury to bring in a verdict for the plaintiffs, which motion the court, on consideration, overruled. This motion could not properly have been granted unless on all the issues involved the plaintiffs were entitled to a directed verdict. For the reasons already given the plaintiffs would have been entitled to a directed verdict in so far as the claims set forth in the petitions and the first and second counterclaims of the defendant are concerned, but it could not be said, as a matter of law, that the defendant was not entitled to any damages on account of the issuance and levy of executions on the other stallion and his sale to pay the cost of his keeping while so held under levy. The court, therefore, committed no error in overruling the motion for a directed verdict. This issue, however, seems to have been given but little attention during the trial of the case. Evidence was offered tending to show that much of the long delay which ensued after the levies and before the sale was at the instance and request of the defendant Robinson, and of course he would not be entitled to damages resulting from any delay which he himself brought about. Whether there was any delay and ensuing damage for which the plaintiffs are liable should be left to the jury under appropriate instructions from the court. On a retrial of the case the only issue for submission to the jury would be the issue arising on this branch of the case.

For the reasons indicated, the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

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


text:
    PROSECUTION FOR FAILURE TO PROVIDE FOR. MINOR. CHILDREN.
    Court of Appeals for Licking County.
    Ralph Baker v. State of Ohio.

    Decided, March Term, 1917.

      Parent and Child—Indictment Charging Failure to Support Two or More Children—Not Open to Attach Because the Charge as to Both or All of the Children is Contained in One Count, When.

    I't is not error, under an indictment charging the defendant with failure to support his two minor children under sixteen years of age, to adjudge him guilty with respect to one of said children and not guilty with respect to the other, and to impose sentence in the one case, in default of bond conditioned upon his providing said neglected child with a proper home, food and clothing in the future, where no objection was made to the form of the indictment in the trial court.

      Kibler & Kibler for plaintiff in error.

      Chas. L. Flory, Prosecuting Attorney, contra.

       Affirming State v. Baker, 19 N.P. (N.S.), 463.

   Houck, J.

Error is here prosecuted in which it is sought to reverse a judgment of conviction of the common pleas court wherein the plaintiff in error, the defendant below, was convicted upon an indictment found by the grand jury of Licking county, in which he was charged with failing to support his two minor children. The indictment contained but one count, and no motion or demurrer was filed to the indictment by the accused. The defendant entered a plea of not guilty to the charge contained in the indictment, and in open court waived his right to a jury trial, and the cause was submitted to the trial judge, to be heard and determined by him upon the evidence and the law. Trial was had, and the defendant was acquitted as to the charge made against him in the indictment of failing to provide for his minor son, John Baker, but he was found guilty, as charged in the indictment, of failing to provide for Russell Baker. The trial judge made a finding of facts and conclusions of law, which are as follows:

“This day came the parties and this cause came on for trial upon the indictment and the plea of not guilty made by the defendant herein, and by consent of the parties a jury was waived and this cause submitted to the court upon the indictment, plea and the evidence. And the court being fully advised in the premises on the request of the defendant that its conclusions of fact be stated separately from its conclusions of law, find, as its conclusion of fact that:

‘ ‘ From the first day of May, 1915, until the date of the finding of the indictment herein, the said defendant was the father of John Baker, of the age of fifteen years, Russell Baber, of the age of five years, both being under the age of sixteen years, and that said children were residents of Licking .county, Ohio; that the defendant did not fail, neglect or refuse to provide the Said John Baker with a necessary and proper home, care, food and clothing during the time named in said indictment, and that the said defendant was able, by reason of his personal labor.and earnings to provide said John Baker with the necessary and proper home, care, food and clothing; that the said defendant did fail, neglect and refuse to provide Russell Baker named in said indictment with the necessary and proper home, care, food and clothing during said period.

‘ ‘ And as its conclusions of law upon the facts found, the couft find that the said defendant is not guilty as charged in said indictment of failing, neglecting and refusing to provide John Baker with necessary and proper food, home, care and clothing, and that the said defendant is guilty of failing, neglecting and refusing to provide the said Russell Baker with the necessary and proper home, care, food and clothing during said time as charged in said indictment. To whieh finding of the court, as to the said Russell Baker, the defendant excepts.

“ It is therefore adjudged by the court that the said' defendant is not guilty as charged in said indictment of failing, neglecting and refusing to provide the said John Baker with necessary and proper home, care, food and clothing as charged in said indictment.

“And it is further adjudged by the court that the said defendant is guilty of failing, neglecting and refusing to provide the said Russell Baker with the necessary and proper home,- care, food and clothing as charged in said indictment. To which judgment of the court, finding the said defendant guilty as to said Russell Baker, the defendant excepts.

“It is therefore ordered and adjudged by the court that unless the said defendant forthwith appear before this court and enter into a bond to the state of Ohio in the sum of five hundred ($500) dollars, with sureties approved by this court, conditioned that the defendant will furnish the said Russell Baker with necessary and proper home, care, food and clothing, it is ordered and adjudged by the court that the said defendant be imprisoned in the jail of said county at hard labor for not less than six months and to pay the costs of prosecution. To which judgment of the court said defendant excepts.

“Thereupon came the defendant and filed a motion'to set aside judgment, finding and decree of the court, and grant a new trial herein for the reasons stated in said motion, which motion is overruled by the court. To whieh the defendant' excepts, and on motion of the defendant, the usual statutory-time is allowed for preparing and having allowed a bill of his exceptions herein.

And on motion of the defendant, it is ordered that execution of above sentence be suspended until the first day of January, 1917, to enable the said defendant to file a petition in error herein.”

It is contended by counsel for the plaintiff in error that the trial judge was without authority to find the defendant guilty of failing to support one of his minor children, and not guilty of failing to support the other, for the reason that there is but one count in the indictment; and that therefore he must be found guilty as to both children or not guilty, and that there can be no separation in the finding as to the innocence or guilt of the accused with reference to the two children. In other words, it is urged that there was but one thing for the trial judge to do under the form of this indictment, and that was to either find the defendant guilty of failing to support both of his minor children, or acquit him of the charge made against him of his failure to support both of them.

We do not think the claim of learned counsel in this respect sound. While we feel that it would have been in better form to have made two counts in the indictment, yet when the accused did not take advantage of this by motion or demurrer, and went to trial upon the indictment as returned, we do not think that he was in any way prejudiced when he was found guilty of failing to support one of the children and discharged as to the other. We do not see how it could seriously be contended that if the case had been submitted to a jury under proper instructions from a trial judge, in which the trial judge would of necessity, under the law, have instructed the jury that if they found from the evidence that the defendant had failed to support both of his children, then they should return a verdict in accordance with such finding; but if they found, under the evidence, that he was guilty of failing to support one, and not the other, then they should so find in their verdict. This case was submitted to the trial judge without the intervention of a jury, and by so doing, the court was clothed with power and authority to determine the facts and apply the law applicable to the state of facts so found by him, and in the instant case we are unable to find wherein the plaintiff in error has been in any way prejudiced by tbe finding of facts and tbe application of tbe law to those facts, as contained in the conclusions of law found by tbe court.

Finding no prejudicial error in tbe record, tbe judgment of tbe common pleas court is affirmed.

Shields, J\, and Powell, J., concur.


text:
    RIGHT OF AN INDEMNITY COMPANY TO RESERVE THE PRIVILEGE OF SETTLING CLAIMS.
    Court of Appeals for Stark County.
    Melton Coal & Lime Co. v. General Accident, Life & Fire Assurance Corporation, Limited.
    Decided, January Term, 1916.

      Inherent Right of an Indemnity Company to Settle Claims Against an Assured—Failure to Show Waiver of Conditions of Policy hy Written Endorsement.

    1. The right of an indemnity company to insert a provision in an employer’s liability policy issued to a contractor, reserving the privilege of settling “any claim or suit,” is inherent whether the claim be meritorious or not, and the defense that the injury for which claim was made and a settlement effected was not caused by any negligence on the part of the insured, does not lie in an action to recover from the insured a stipulated sum of money expressly conditioned to be paid before recourse could be had upon the insurer for indemnity.

      2. The insured is precluded from asserting that if the claim in question was paid or settled the responsibility and loss would be on the insurer, where the answer fails to show a written waiver of the conditions of the policy with reference to the right of the insurer to make such settlement.

      Amerman & Mills, for plaintiff in error.

      Garrett Stevens, contra.
   Shields, J.

Error is prosecuted to tbe action of tbe court below in sustaining a motion for judgment upon tbe pleadings herein, and tbe plaintiff in error not desiring to plead further, judgment was entered on said motion in favor of the defendant in error, and by a petition in error filed herein the plaintiff in error seeks to reverse said judgment.

In the court below a petition was filed by the plaintiff corporation, defendant in error herein, to recover of the defendant below, plaintiff in error herein, the sum of two hundred and fifty dollars under the terms of a certain policy of insurance known as “contractors’ employers’ liability policy,” issued by the plaintiff to the defendant indemnifying the defendant against loss “by reason of the liability imposed by law upon the assured for damages on account of bodily injuries including death at any time resulting therefrom, accidentally suffered or alleged to have-been suffered through the assured’s negligence and while this policy is in force, by any employee or employees of the assured while at or about the places designated in said declarations, or elsewhere, by reason of the prosecution of the work described in said declarations.” It was further alleged—

“That there was attached to and made a part of said policy of insurance when the same was issued an indorsement providing that in view of a reduced premium rate for the limitation of plaintiff’s liability, providing that before recourse could be had against the plaintiff under the policy as issued for reimbursement or indemnification for liability for loss, the policy holder, the defendant, must have expended an amount in excess of two hundred and fifty dollars in effecting the settlement of any claim.

“That on February 1, 1913, said policy of insurance (a copy of which is attached to said petition) was issued by the plaintiff to the defendant upon the payment of a certain advance estimated premium, the balance of said premium or consideration for said contract, to be subject to adjustment as 'based upon the actual pay-roll of the defendant company, during the life of said policy.

“That said defendant company was at said time and afterward engaged in the manufacture of gray lime, and the mining of clay and coal, and had in its employ a number of employees, among them one James Lewis, who on March 15, 1913, was injured. That exercising its option contained in said policy of insurance, plaintiff made a settlement of the claim of said Lewis against the defendant company by paying him therefor the sum of three hundred dollars and took a full and complete release of all claims against the defendant company. Acting under the terms of said policy of insurance, the plaintiff thereupon forwarded said release to the defendant company and requested payment of the sum of two hundred and fifty dollars in accordance with the terms of said policy, which was refused, and judgment is prayed for said sum with interest.”

In its 'amended answer, for a first defense, the defendant admits that said policy of insurance was issued to it upon the payment of certain premiums specified therein, and that said policy was indorsed thereon as set forth in said petition.

It admits that about March 15, 1913, the said James Lewis was injured and that the plaintiff made a settlement with Mm by paying him the sum of three hundred dollars and secured from Mm a full release of all claims against the defendant, but it avers that said injury was not due to any fault or negligence of the defendant, but was due solely to the negligence of said Lewis, and therefore there was no liability on the part of the defendant to said Lewis for said injury, all of which was known to the plaintiff when it adjusted said claim. That the defendant so notified said plaintiff and demanded that plaintiff defend against said claim, and, further, that said claim was groundless, and that if the plaintiff settled the same the defendant would not pay any part of said settlement—that said policy was issued to the defendant to cover only such liability imposed by law upon the defendant occasioned by its negligence, and it denies each and every allegation not expressly admitted in said ground of defense.

For a second defense it says that if by the terms of said policy the defendant was obliged to pay any part of the settlement of said claim, which it denies, it was expressly agreed between the plaintiff 'and the defendant that whatever settlement of said claim was made by the plaintiff it would be made entirely on the plaintiff’s own responsibility, and that the defendant would not be required to pay any part of the same, and with this agreement so made said claim was settled by the plaintiff, and the defendant asked that the plaintiff’s petition be dismissed.

■ Upon these. pleadings, the plaintiff company below claimed it was entitled to a judgment, and upon a motion submitted for this purpose, said motion was sustained, as already indicated. This action on the part of the trial court is assigned as error.

The claim originally made by the defendant in error rests in a contract in writing between it and the plaintiff in error, a copy of which is attached to and made a part of the plaintiff’s petition, and the legal rights of the parties hereto are fixed by the terms of said contract.

The execution and delivery of the policy of insurance by the defendant in error, together with the indorsement thereon of a reduced premium rate, being stipulated for the limitation of the liability of the defendant in error, the payment of premiums thereunder, and that said Lewis, an employee of the plaintiff in error, was injured, and that the defendant in error made settlement with him and procured from him a release of all claims for damages against the plaintiff in error, are admitted; but the plaintiff in error makes the claim, that it ought not to be called upon to respond to the payment of the sum of $250, provided for in the policy,?first, because said employee was not injured by any act of negligence of the plaintiff in error, which fact was made known to the defendant in error before said settlement was made with said employee; secondly, that it was expressly agreed between -said parties that if a settlement was made with said Lewis it should 'be entirely on the defendant in error’s responsibility and that the plaintiff in error would not be required to pay any part of said settlement.

1. Looking to the contract, what do we find? Is there anything appearing therein admitting of two constructions, or any doubt or ambiguity arising out of the language employed therein, affecting the rights of the insured, requiring a construction ? In the case of The Germania Fire Insurance Co. v. Schield, 69 Ohio St., 136, it is held that:

“Policies of insurance, like all other contracts, should be reasonably construed, so as to give effect to the express words of the parties, and not to defeat their intention.”

'The policy of insurance here sued upon in reciting the conditions Apon whi'ch it was issu'ed, and which is made a part o'f said contract of insurance, under condition B therein provides, among other things, that—

“The corporation reserves'the right to settle any claim or suit.”

The language here employed admits of but one interpretation. There is no room for construction, nor is there any limitation of power placed upon the defendant in error as to what claims or suits shall or shall not be settled by it. The defendant in error by the power thus given becomes the sole judge of what shall be done in the premises relating to the settlement of claims or suits, and whatever the nature of the claim, whether meritorious or otherwise, the exercise of the right of settlement inheres in the defendant in error under the terms of said policy. True it may seem that said policy by its terms is a harsh contract, but the presumption is that the plaintiff in error read and understood its provisions before signing it. Indeed, there is no claim made that the provisions of the policy were not understood at the time said contract was entered into. It can not be overlooked either that in contracts of this character the power of deciding whether or not claims shall be adjusted must rest somewhere, otherwise the insurer might be subjected to expensive -and vexatious litigation at the arbitrary will of the insured. It would seem, therefore, that the provision referred to in said contract of insurance was inserted therein to avoid and prevent such litigation. So, then, applying the rule laid down in the ease cited, “giving effect to the express words of the parties,” the duty of the court seems plain, and we hold that said clause under said condition B means just what the language therein plainly and unmistakably indicates; and hence the claim of the plaintiff in error that the injury received was not caused by any act of negligence on its part can not avail as against the exercise of the option to settle said claim by the defendant in error under the provisions of the policy. Had the plaintiff in error elected to surrender and have said policy canceled, which it had the right to do under condition D therein, it could then have had full control of said claim, but this It failed to do j at l’e’ást did not do'.

2. But it is contended by tbe plaintiff in error that after the defendant in error was made acquainted with the circumstances under which said injury occurred and that it was not due to any neglect on the part of the plaintiff in error, the defendant in error agreed with the plaintiff in error that if a settlement was made with said Lewis 'by the defendant in error, that the latter should bear all responsibility and loss for such settlement. The defendant company having accepted and acted under said policy, it was bound by its terms and provisions. Condition L in said policy provides that—

“No condition or provision of this policy shall be waived or limited except by written indorsement attached hereto, signed by the United States Managers, or the Assistant United States Manager, nor shall knowledge possessed by any agent or by any other person be held to effect a waiver or a change in any part of this contract.”

An examination of said second defense in said amended answer fails to show thait any waiver of the conditions of said policy was indorsed thereon signed by the United States managers or the assistant United States manager, and as against this express provision no alleged agreement of whatever bind would avail to render said provision ineffective.

The judgment of the court of common pleas will therefore be affirmed.

Powell, J., and Houck, J., concur.