author: RICHARDS, J.

text:
    CRIMINAL LAW — HOMICIDE.
    [Erie (6th) Circuit Court,
    April 12, 1912.]
    Wildman, Kinkade and Richards, JJ.

      Dominic Selvaggio v. State of Ohio.
    1. Juror’s Attitude as to Insisting on Recommendation of Mercy in Capital Case if Verdict Based on Circumstantial Evidence Properly Ascertained by State in Examination Voir Dire.
    In an examination as to the qualification of jurors to sit in a trial for murder in the first degree, it is not error for the state to ascertain by proper questions whether a prospective juror would insist on a recommendation of mercy, in the event that the verdict were to be based on circumstantial evidence.
    2. Refusal to Require Election by State in First Degree Murder Between Count Charging Deliberate and Premeditated Malice and Another in Perpetration of Robbery, Held not Erroneous.
    Where the crime is charged in two counts — the first that the homicide was committed with deliberate and premeditated malice, and the second that it was committed in the perpetration or attempted perpetration of robbery — it is not error to overrule a motion to require the state to elect upon which count it will go to trial.
    3. Evidence Accounting for Certain Parties and Disappearance at Occasion of Murder Inextricably Interwoven With Crime, Held Proper.
    Evidence accounting for certain parties, and for their disappearance on the occasion of the murder charged in the indictment, is competent where so inextricably interwoven with the crime that without it a wrong suspicion might arise as to who was the perpetrator.
    [Syllabus by the court.]
    Error to common pleas court.

      George W. Bitter, for plaintiff in error.

      Henry Hart, Prosecuting Attorney, and George G. Beis, for defendant in error.

       Affirmed, no op., Selvaggio v. State, 86 O. S. 366.

   RICHARDS, J.

The plaintiff in error, Dominic Selvaggio, was jointly indicted with one Rocco Klawetch, alias Roeco Lavecchia, for murder in the first degree in killing one Antonio Viscario. The indictment contains two counts, tbe first count charging the homicide to have been committed purposely and of deliberate and premeditated malice, and the second count charging it to have been committed in the perpetration and attempt to perpetrate a robbery of the said Antonio Yiscario. The crime is •alleged to. have been committed upon September 19, 1911, on Kelley’s Island in this county.

Dominie Selvaggio, upon his trial in the court of common pleas, was found guilty by the jury of murder in the first degree under the second count of the indictment, without any recommendation to the mercy of the court, and has been sentenced by the court upon that verdict to death in the electric chair.

The bill of exceptions contains all the evidence and is very voluminous, consisting of some one thousand pages in addition to a very great many exhibits. The case has been argued both orally and in briefs with great ability by counsel, and we have spent much time in giving a thorough and painstaking examination to the entire record as was demanded by the importance of the case. The alleged errors which it will be necessary to examine, relate to the impaneling of the jury, the refusal of the court below to compel the state to elect on which count of the indictment it would proceed, the admission of evidence, the: ruling of the court upon a motion to direct a verdict in favor of the defendant, the weight of the evidence, and the charge of the court to the jury.

Many errors are claimed to have occurred in the impaneling of the jury, but nearly all of them relate to the ruling of the court upon questions propounded relative to the death penalty. A fair sample arises in the examination of Horace Ramsdell, who was qualified and served as a juror. During his. examination on his voir dire, he was asked this question by counsel for the state: “If you were satisfied that the defendant did commit the crime as he stands charged in the indictment beyond a reasonable doubt, would the fact that the state did not produce an eye-witness to the actual killing, influence your mind against the imposition of the death penalty?” Against the objection and exception of the defendant he answered: “I don't think it would; no, sir.”

The contention on behalf of the defendant seems to be that the matter of inflicting the death penalty, or recommending mercy upon the returning of a verdict of guilty of murder in the first degree, rests wholly within the province of the jury, and that it was therefore improper and prejudicial to make the above or similar inquiries.

While the statutes of Ohio leave it entirely with the jury to determine whether they will recommend mercy in the event of returning a verdict finding the defendant guilty of murder in the first degree, yet such recommendation ought to be based on reason and ought not to be the result of mere arbitrary whim or caprice. If a man, for instance, upon examination as to his qualifications as a juror in such a case, should state that if the jury reached a verdict finding the defendant guilty of murder in the first degree he would insist on a recommendation of mercy if the verdict were based on circumstantial evidence, such answer would indicate a condition of mind of which the state should be advised. - The state might desire to exercise peremptory challenges and it would then have an opportunity of taking such action as might be proper with knowledge of the existing conditions. We believe and hold the question to be entirely proper and this holding will apply to all similar questions asked of others who were examined on their voir dire.

Later, in continuing the examination of the same juror, Horace Ramsdell, it developed that he had an opinion as to the guilt or innocence of the defendant, based largely upon what he had read as to the officers having traced the defendant to Pittsburg, but upon examination by the court he expressed an ability to lay aside that opinion and base a verdict entirely upon the evidence as he should hear it in court and the charge of the judge. We think the court, having the juror before him and being able to judge not only from his statements but from his manner and appearance, did not abuse his discretion in holding that he was qualified to serve as juror. Lindsey v. State, 69 Ohio St. 215 [69 N. E. Rep. 126].

At the conclusion of the impaneling of the jury, the defendant was entitled to three additional peremptory challenges which he did not exercise, and the bill of exceptions recites: “There now being twelve men in the panel of jurors, and the state and defendant being both satisfied with the jurors, the jury was sworn.” We can not say that he was prejudiced by any action of the court in impaneling the jury. The record discloses that both court and counsel exercised the greatest care in protecting the rights of the defendant in procuring an impartial jury, and it appears from the record that a jury was obtained not subject to any legal objection.

At the opening of the case and also at the conclusion of the case made by the state, the defendant moved the court to require the state to elect upon which count of the indictment it would proceed, which motion was overruled and to which ruling the defendant excepted.

It is entirely clear from the record that there was but one transaction constituting the crime charged in the indictment, the first count charging the homicide to have been committed with deliberate and premeditated malice, and the second count charging it to have been in the perpetration or attempted perpetration of robbery. Under such circumstances, it has always been the rule that in order to avoid a failure of justice, the state may set forth the transaction in various counts, and it being but one transaction, may not be required to elect upon which count it will proceed. The action of the court in overruling the motion to require an election was clearly correct. State v. Bailey, 50 Ohio St. 636 [36 N. E. Rep. 233] ; Cotell v. State, 5 Circ. Dec. 472 (12 R. 467). The rule is concisely stated in 22 Cyc. 394, as follows: “The same act may be alleged to have been actuated by different intents.”

The only claimed error in the admission of evidence which appears to be entitled to consideration, relates to evidence of the death by violence of two men known as the Barlinia brothers, upon the same night and in the same locality as that in which. Antonio Viscario met his death. The record discloses that Viscario was killed upon the night of September 19, 1913, on Kelley’s Island, by having his throat cut almost from ear to ear, after which his body was thrown into the lake. He lived in the west half, known as No. 5, of a double house on that island, which portion of the house was also occupied by the defendant, Dominic Selvaggio, and by Eoeco Lavecchia, jointly indicted with him and by the two Barlinia brothers, all Italians. The Barlinia brothers were never seen alive after that night and their bodies were subsequently found in the lake, their throats being cut in the same manner as that of Antonio Viscario.

In order for the state to make a case against the defendant, the practical necessity rested upon it to account for the Barlinia brothers; and their disappearance upon the same occasion as that of Viscario and at the same place, was so inextricably interwoven with the crime charged in the indictment, that no error was committed by the trial court in allowing the evidence. In the absence of such evidence, the suspicion might well have arisen that the Barlinia brothers were themselves the guilty parties. The trial court in its charge to the jury, very carefully limited the purpose for which the evidence might be considered and it seems to us it was a proper link in the chain of circumstantial evidence bearing upon the guilt of the defendant. The evidence was admissible for the further reason that the defendant had made conflicting statements to account for the .absence of the Barlinia brothers.

In the charge of the court to the jury, the trial judge carefully defines, under the first count in the indictment, the crime of murder in the first degree and the various included offenses. In charging relative to the second count, the jury was told in substance that if they found the defendant guilty of an unlawful and purposed killing while in the commission of a robbery, there could be but one of two verdicts, namely, murder in the first degree without a recommendation of mercy, or murder in the first degree with a recommendation of mercy, and that under the charge in the second count of the indictment, there were no included offenses of lower grade. This language has given us some concern. The statement, together with all other propositions in the general charge, was excepted to by the defendant.

The court was perhaps not technically correct in the language there used, if it had remained alone and unexplained by other portions of the charge; but the fullest opportunity was given to the jury in other portions of the charge and in the forms of verdict which were submitted, to find upon every aspect of the case as to any offense charged in the indictment, or , any included offense therein, and certainly in view of the holding of our Supreme Court in Adams v. State, 29 Ohio St. 412, the defendant has no just cause of complaint.

The remaining alleged errors relate to the action of the court in overruling the motion to direct a verdict, and to the claim that the verdict and judgment are not sustained by the evidence. It would not be profitable to review the great mass of evidence which was introduced in the trial of this case, and it is sufficient to say upon a careful examination of all of it, we are unanimously of the opinion that the verdict of the jury was fully justified ‘and that the court did not err in overruling the defendant’s motion for an instructed verdict or for a new trial.

Finding no prejudicial error, the judgment of the court of common pleas will be affirmed.

Wildman and Kinkade, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    CRIMINAL LAW — RAILROADS.
    Cuyahoga (8th) Circuit Court,
    December, 1908.]
    Marvin, Winch and Henry, JJ.
    Sam Pisko v. State of Ohio.
    1. Statute Proscribing Removal of Railway Equipment Without Reference to Endangering Human Life not Repealed by Act 99 O. L. 464.
    Act. 99 O. L. 464 (Sec. 12561 G. C.), which provides for the punishment of those who, by removing certain enumerated articles from railway equipment, endanger human life does not, by implication, repeal Sec. 6861, R. S. (Sec. 12560 G. C.), which makes it unlawful to do the things therein enumerated without "Terence to the endangering of human life thereby.

      2. Indictment Charging Displacement of Railway Equipment Enumerated Sufficient.
    An indictment which, alleges that the accused unlawfully, wilfully and without proper authority removed and displaced certain attachments to a railroad car, to wit, three triple valves, describes an offense within the purview of Sec. 6861, R. S. (Sec. 12560 G. C.).
    [Syllabus by the court.]
    Error to common pleas court.

      William B. Woods, for plaintiff in error.

      William G. Geier, for defendant in error.
   MARVIN, J.

Pisko was indicted, tried, found guilty and sentenced upon an indictment which, charged that he unlawfully, willfully and without the proper authority did then and there remove and displace certain attachments to a railroad car, to wit, three triple valves of the value of three dollars each, which said railroad car and attachments were then and there employed and used in connection with the operation of a certain railroad of the Baltimore & Ohio Railroad Company, a corporation, and which said railroad car was then and there constructed and in operation in said county by said corporation, as aforesaid.

To this indictment a demurrer was filed and overruled, and the error complained of is the overruling of this demurrer. It is urged that if the indictment is under Sec. 6861 R. S. that the statute is not now in force, but was repealed by implication by the enactment of the statute found in 99 O. L. 464.

Section 6861 R. S. (Sec. 12560 G. C.) reads:

‘‘ That it shall be unlawful for any person or persons without proper authority, to place any obstruction' upon any railroad, or any street railway, or-any cable railway in this state, or displace, injure, or destroy anything appertaining thereto, or interfere with, remove, displace or disarrange any rail, cross-tie, switch, side track, locomotive, car or train of cars or other property appertaining to any such railroad, street railway or cable railway, or interfere with, remove, displace or disarrange any flag, lamp or other signal attached to or employed upon any railroad, street railway or cable railway, or upon any railroad car or train of cars, or upon any street railway ear or cable railway ear, locomotive switch or other property appertaining to any such railroad, street railway or cable railway or remove from, disarrange, or destroy any lock fastening, coupling or attachment on any track, car switch, stand, tool house, depot, or other property of any such railroad, street railway or cable railway. Any person violating any of the provisions of this section, shall, upon conviction thereof, be fined not more than five hundred, nor less than twenty-five dollars, and imprisonment in the penitentiary not more than ten years or in the county jail not less than thirty days.”

The statute passed May 9, 1908 (99 O. L. 484), which is claimed repeals the former statute, reads:

“That whoever without authority unlawfully removes from any railway track over which locomotives or cars are operated or from any locomotives, motor, or cars the bond wires, nuts, bolts, angle bars, spikes, attachments, fastenings, switch stands, locks, feed wires, trolley wires, or other appurtenances, or any part or attachment thereof, or any bonds, nuts, bolts, wires, fastenings, journal braces, journal packing or parts thereto attached or belonging in which are necessary in the use or operation of said railway tracks, locomotives, motors or cars, and the removal of which may endanger life, or whoever buys, receives, or unlawfully has in his possession any of the aforesaid articles, shall upon conviction thereof be imprisoned in the penitentiary not more than five years or less than one year, or not more than six months in the county jail or workhouse at the discretion of the court, which is hereby authorized to hear testimony in mitigation or aggravation of sentence.”

It will be noticed that the statute last quoted provides only for the ■ punishment of those who by removing the articles enumerated endanger human life, while Sec. 6861 R. S. makes it unlawful to do the things therein enumerated, without any reference to whether the doing of those things endanger human life or not, so that if the statute found in 99 O. L. 464, repeals the former statute by implication there would be left no penalty for doing those various things, except when the doing of them endangers human life. It is perfectly clear that the statute? last named was not intended to take the place of See. 6861 E. S., and, therefore, does not repeal the former act by implication.

But it is said that the indictment is bad under Sec. 6861 E. S. That statute, as is said in brief for the plaintiff in error, punishes first, him who places any obstruction upon any railroad or interferes with, removes, displaces, or disarranges any rail, cross-tie, switch, side track, locomotive, ear or train of cars, or other property appertaining to any such railroad; second, it punishes him who interferes with, removes, displaces or disarranges any flag, lamp or other signal, and third, it punishes-him who removes from, disarranges, or destroys any lock,, fastening, coupling or attachment on any track, ear, switch,, stand, tool house, depot, or other property of any such railroad..

Of course it is perfectly clear that the offense charged here' does not come within the second class named in the statute.

It is said that it does not come with the third class because there is no averment that the property interfered with was the property of any railroad, street railroad or cable railroad company. Conceding that this is true as to the third offense as named in the first clause of the section is clearly charged in this-indictment. Not a necessary allegation is omitted. The language of the indictment is that the defendant “did remove; and displace certain attachments to a railroad car, to wit, three' triple valves.” The language of the statute is that “it shall, be unlawful for any person, without proper authority, to interfere with, remove, displace, or disarrange any ear or other property appertaining to any such railroad.” .

If these triple valves were attachments on a railroad ear, then they appertained to such described ear, and the fact that the word “appertaining” is used in describing the last of the three offenses named in the statute in nowise does away with the « fact that whatever attachment there is to a railway car “appertains” to such car.

We reach the conclusion, therefore, that the demurrer was properly overruled, and the judgment is affirmed.

Winch and Henry, JJ., concur. ‘


text:
    CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    January 11, 1909.]
    Marvin, Winch and Henry, JJ.
    Frank H. Ginn, Assignee, v. Cleveland Sanitarium Co.
    1. Refusal to Take Corporate Stock Subscribed no Relief Against Corporate Debts Subsequently Created.
    A subscriber for stock in a corporation can not be relieved of paying therefor simply by his declaration that he will not take the stock, even if made before any debts have been contracted by the corporation; but if all the stockholders consent to a cancellation of his subscription before any debts are contracted he is relieved therefrom.
    2. Consent of Other Stockholders to Cancellation of One’s Subscription by Unimpeached Acquiescence.
    The consent of all the other stockholders need not be express, if their acquiescence continues unimpeached, with full knowledge of the facts. ,
    [Syllabus by the court.]
    Error to common pleas court.

      Blondín, Rice & Ginn, for plaintiff in error.

      E. J. Foster, Scott & Parks, C. W. Dille and- White, for defendant in error.
   MARVIN, J.

The plaintiff here is the assignee, under the statutes of Ohio, for the benefit of the creditors of the Euclid Avenue Trust & Savings Company, a corporation. The suit is brought against the Cleveland Sanitarium Company, a corporation, and certain natural persons. Among the defendants is John W. Walton, and the only issue tried in this court is an issue between the plaintiff and said Walton, and that issue is upon the question of whether Walton is liable upon an unpaid subscription for stock of the sanitarium company. This company was incorporated on December 11, 1900. Walton was not one of the incorporators. Shortly after the incorporation books for subscriptions to the capital stock were opened and Walton subscribed for five shares of the stock. lie was elected a. director and then by the vote of the directors he was elected president of the corporation. Shortly after that and before any certificates of stock had been issued to anybody and before any debts had been incurred, Mr. Walton, at a meeting of the stockholders, of which all the stockholders had notice, but which was attended by only a part of them, stated in the open meeting that he had been induced to subscribe because of representations made to him by the promoter, which he claimed were not being carried out, and he stated he would refuse to take out any stock. However, after some conversation among the stockholders present at this meeting he agreed to take one share and one share only of such stock. Several of the stockholders present affirmatively stated that this action of Walton’s was acceptable to them, and no stockholder present made any objection in any wise to the position taken by Mr. Walton. Thereafter, Mr. Walton, so far as he was able to do, notified each stockholder whom he supposed might have been influenced to subscribe by the fact that he had subscribed for five shares, then , that he withdrew such subscription and was to take out but one share. This fact seems to have been known early to all of the stockholders. One share of stock was issued to Mr. Walton, for ■which he paid, and on which he has since paid 100 per cent as his statutory liability. At a meeting of the stockholders later Mr. Walton appeared and voted one share and one share only of the stock. The claim made here by the plaintiff is that Walton having originally subscribed for five shares of stock and having paid for but one is still liable for the remaining four shares, both upon his subscription and upon his statutory liability as a stockholder.

■ We recognize the law to be as claimed by the plaintiff that no subscriber for the stock of a corporation can be relieved of his liability by simply declaring that he will not take the stock, even though such declaration is made before any indebtedness is incurred by the corporation, but we understand the law further to be that so long as there are no debts of the corporation, the stockholders among themselves, may, if all agree to it, release one Avho has subscribed for stock. This is necessarily iso, because all the stockholders may agree among themselves that they will abandon the corporation and none of them pay anything. And the question remaining is only whether Walton by unanimous consent of the stockholders was released from his subscription. It is said that since the issuing of certificates ■of stock is not necessary in order to constitute one a stockholder ■of a corporation, the fact that a certificate for but one share was issued to Mr. Walton does not release him from his obligation as a subscriber to the stock or as a stockholder, and this is true. But the fact that the certificate for one share was issued to him, as shown by the records of the corporation, and that he thereafter appeared at a stockholder’s meeting and voted but one share, without any protest on the part of anybody, or claim that he was a stockholder in a larger amount, we think has a bearing upon the question of whether he was released by the unanimous consent of the stockholders.

In Cook, Corporations Sec. 169, it is said:

“A subscriber for stock in a corporation can not obtain a -cancellation of his subscription except by the unanimous consent of the other subscribers. By unanimous consent, however, ■of the stockholders, a subscription may be canceled and a subsequent creditor of the corporation can not complain. The ■consent of all other stockholders need not be express, if the means of notice are sufficient so as to raise a clear presumption of knowledge and acquiescence and if the arrangement is left unimpeached by any one for many years no objection can be made. ’ ’

In this case’ before us there was an acquiescence by all of the stockholders. There has never been any complaint by any ■of them nor was any complaint made by anybody until after the bringing of this action.

At the beginning of this action Walton was not made a party, but was brought in some time after the action was begun, and the'claim against him is for the benefit of creditors at the time that'Walton announced the withdrawal of his subscription, so that the creditors for whose benefit a recovery is sought here are creditors wbo became such after Walton’s withdrawal.

We think the fair conclusion to be drawn from the evidence here is that Walton announced his withdrawal of the subscription for the four shares of stock for which he has never paid; that it was acquiesced in by all of those interested in the corporation at the time, to wit, all of the other stockholders or subscribers for stock, and that therefore the plaintiff is not entitled to a recovery against Walton, and judgment will be entered in his favor.

Winch and Henry, JJ., concur.


text:
    PARENT AND CHILD.
    [Cuyahoga (8th) Circuit Court,
    January 11, 1909.]
    Marvin, Winch and Henry, JJ.
    Cleveland Christian Orphanage v. Charles L. Barcus.
    Abandonment of Child Not Shown by Failure to Pay for its Support.
    A father placed his minor child in an orphanage association, agreeing to pay a stipulated sum weekly for its support. He also agreed that if he failed to pay the weekly charge for three consecutive months after the same became due he would relinquish all his rights, interest and control of his child and vest the same in the association, so that it should have all the rights to and authority over the child which he had by reason of being its father. The association cared for and supported the child for over a year, until there was due it quite a sum which the father neglected to pay. He then began proceedings in habeas corpus to recover possession of his child, and the association answered that it was entitled to the child under the terms of the agreement. Held: The agreement was unilateral, not binding the association to care for and support the child and so unenforceable by it, and further, the fact that the father was in debt for the care of his child did not show that he had abandoned it.
    [Syllabus by the court.]
    Error to common pleas court.

      Alden & Hopple, for plaintiff in error.

      Kerruiah & Kerruish, for defendant in error.
   MARVIN, J.

Barcus is the father of Theodrick M. Barcus, an infant about 5 years of age; the plaintiff in error is a corporation. On February 18, 1907, he (Bareus) having lost his wife and being unable to care for said child in his own home, “voluntarily and of his own free will placed said child, Theodrick M. Barcus, in the Cleveland Christian Orphanage of the Benevolent Association of the Christian Church for the purpose of having said child cared for, supported and maintained by said orphanage.” That for the purpose of securing the services in caring for, supporting and maintaining said child, said Charles L. Barcus voluntarily and of his own free will signed, executed and delivered to said orphanage the following agreement:

“Know all men by their presents, that I, Charles L. Barcus, of the county of Cuyahoga, and state of Ohio, being the father of a certain child named Theodrick M. Barcus, about three and one half years old, have placed the said child in the care and custody of the Cleveland Christian Orphanage of the Benevolent Association of' the Christian Church, city of St. Louis, Mo., to be cared for, supported and maintained,. and in consideration of said care, support and maintenance of said child, under the rules and regulations of said association, I hereby agree to pay said association $1.50 per week, weekly in advance. And should I fail.to pay the said weekly charge for three consecutive months after the same is due and payable, I hereby agree to relinquish and in that event, do hereby relinquish all my rights, interest and control of the said child, and vest the same in the said association, so that the said association shall, in that event, have all the said rights to and authority over the said child that I now have, by reason of being the father of said child as aforesaid.
“Witness my hand and seal, this the 18th day of Feb., 1907. “Witnesses, Mrs. C. B. Lamb. Charles L. Barcus. (Signed.)”

Said Charles L. Barcus paid nothing to said orphanage nor anything toward the amount he agreed to pay to cover any time since April 4, 1907.

Said orphanage cared for, supported and maintained said child continuously from February 18, 1908, until the said child was taken from it, under a writ of habeas corpus issued in the action, out of -which this proceeding in error arises, so that by the terms of said contract said Charles L. Barcus is indebted to said orphanage in the sum of $107.

' Said orphanage is a proper custodian of said child, and the home maintained by it in which said child was kept and cared for by it is a proper and suitable place for the'care and support of said child, and no fault is found in that regard with said orphanage.

While said child was an inmate of the home maintained by said orphanage, to wit, on August 10, 1908, the plaintiff commenced an action in the court of common pleas in habeas corpus, to secure the custody of said child as against said orphanage. Upon trial had in that case, the prayer of the plaintiff’s petition was granted and the custody of the child taken from the orphanage and given to the father.

To reverse this judgment the present action is prosecuted.

The facts as hereinbefore stated were agreed upon between the parties to this action, as appears by the bill of exceptions filed in this court.

Upon these facts was the court right in its judgment?

Whether a parent may, in Ohio, by contract, other than such contract as is provided by statute in the case of apprentices, transfer ail right to the custody and control of his minor child, need not here be decided, because the. writing entered into between the father and the orphanage in this case was not a contract which could thus transfer the custody and control of the child, whether a contract thus transferring the custody and control of the child could be made or not, and this is so for want of mutuality in the contract. It will be noticed that the orphanage made no promise to do anything on its part. The promise in the writing is wholly on the part of the father, and except to the extent that it has been executed, it would not bind either of the parties. Under the terms of this writing the orphanage was at liberty at any time to refuse' to further care for and support this child.

If the result of this litigation should be a reversal of the judgment of the court of common pleas,, and if this court, or that court should enter judgment in favor of the orphanage as to the custody of the child, the orphanage might immediately refuse to'care for and maintain the child and still violate no provision of the writing entered into between the parties. If the custody and maintenance of the child were left in the orphanage the father would be under obligation to pay $1.50 per week provided for in the writing, so long as the orphanage should continue to care for the child, and this might continue up to the date when the child should reach majority. On the part of the father, the obligations entered into constitute but a naked promise on his part, to be enforced only so far as the orphanage has executed on its part that for which the father promised to pay. It would seem then that there could be no doubt that under this writing the orphanage is not entitled to the custody of the child as against the father.

It may however, be urged that since a parent may forfeit his right to the custody of his child by abandonment that the facts here found such abandonment. This position is not sound. The father has shown by this writing that he made provision for the maintenance of his child, and the child during all of the time was properly provided for. True, the father failed to pay what he had agreed to pay for such maintenance, and he is in the situation so far as an abandonment is concerned that any parent would be imwho makes such arrangements for the board and support of his minor child at a fixed compensation and fails to pay, in short, runs into debt for the support of his child. The facts found in this case do not warrant the conclusion that the child has been abandoned by the father.

There is no evidence in this case as to the fitness of the father to have the custody of his child, but until the contrary is shown, the presumption is that the father is a suitable person to have the care and custody of his child, and surely this is not overcome by the showing that he has allowed himself to fall into debt to the amount of $107 for the purpose of the child. The situation, then, is this: that the father seeks to take the care and maintenance of his child upon himself, as by the laws of the state and the laws of nature it is his duty to do. So far as appears, he is an entirely suitable person to have such custody, except as this is rebutted by the fact that he has failed for some sixteen months to pay what he agreed to pay for the child’s support. The orphanage is under no obligation by contract or otherwise to care for and support this child for a day or an hour, although it furnishes an entirely suitable home for the child. Of course, no 'claim could be made here, or would he made here, that this writing is to be treated as a pledge of the child to the orphanage, as security for the payment of the debt which the father incurred for its support, as such claim would be against all our notions of the proper way to treat children.

The result is that we find the writing does not entitle the orphanage to hold the child as against the father, nor has there been any such abandonment of the child by the father as would entitle the orphanage, or anybody else, to hold the child as against the father.

Suppose that immediately before the commencement of the action in habeas corpus the orphanage had expelled this child from its home and it had been immediately taken into the home of some family prepared to give it a suitable home and maintenance and surround it with proper influences and the father had begun habeas corpus proceedings against sueh family. So far as abandonment is a defense here against such father, abandonment would be available as a defense against the father in the case supposed, and yet it is inconceivable that any court, in the case supposed, would hold against the father without a showing other than the showing made here that he had failed for sixteen months to pay for the child’s support at the place where he had arranged that the child should be supported.

The result is that the conclusion is reached by a majority in this court that the judgment of the court of common pleas ought to be, and such judgment is affirmed.

Winch and Henry, JJ., concur.


text:
    CONTRACTS — SALES.
    [Cuyahoga (8th) Circuit Court,
    January 11, 1909.]
    Marvin, Winch and Henry, JJ.
    Fishel & Marks v. J. A. C. Goldstein.
    Construction of Contract as to Quality of Rails Sold Same as Inspected.
    A provision in a contract for the sale of rails that they shall be “same as was inspected” means that all rails tendered or delivered shall be equally as good as those which had been inspected.
    [Syllabus by the court.]
    Error to common pleas.

      W. C. Ong, for plaintiff in error.

      Klein & Harris, for defendant in error.
   MARVIN, J.

The relation of the parties to each other is the reverse in this court of the relation they sustained to each other in the court below. The terms plaintiff and defendants as used in this opinion will refer to the parties as they were below.

The plaintiff brought suit for damages for an alleged violation of a contract. The result was a verdict and judgment in favor of the plaintiff, and this proceeding is brought for the purpose of reversing said judgment on account of errors which it is alleged were committed on the trial.

The contract which is the foundation of the suit is in writing and was entered into originally between the defendants and one B. C. Scott, and such rights as the plaintiff has, resulted from a transfer by Scott of his interest in the contract to the plaintiff. The' contract is evidenced by two paper writings which read as follows:

Cleveland, 0., Apr. 10, ’06.
‘ ‘ Option.
“It is mutually agreed by Henry R. Fishel and Jos. D. Marks, a co-partnership doing business under the name of Fishel & Marks, and B. C. Scott, both of the city of Cleveland, Ohio, witnesseth:
“For a valuable consideration we the said Fishel & Marks hereinafter called the seller do hereby give the said B. C. Scott, .hereinafter known as the buyer an option until April 12th, ’06 inclusive, for 1250 tons of 56 and 60 T relaying rails, assort- > ment to be half and half of' each. Same as was inspected by B. C. Scott, at the seller’s yard 1940 and 50 Wilson avenue, in the said city. Price to be twenty-two ($22.40) dollars and forty cents per gross ton, also angle bars enough to fit the above mentioned lot of rails. If angle bars are odd sizes and do not fit the above mentioned rails, the seller hereby agrees to re-punch angle bars and guarantees the fit of all angle bars to the above mentioned rails. Any rails left over shall be returned to the above mentioned concern. Price of angle bars to be twenty-five dollars ($25) per gross ton f.o.b. cars to Cleveland, O., same to be shipped at once. Draft to be attached to B. L. Inspector of buyer to inspect rails wherever rails are, at seller’s expense.
‘‘ Signed in duplicate this 10th day of April, 1906.
“Fishel & Marks, per H. B. Fishel,
“B. C. Scott.
“Signed in the presence of Benson Mellrath.”
“‘Fishel & Marks,
“City.
‘ ‘ Gentlemen: I hereby accept your option given me on 1250 tons of 56 and 60 lbs. relaying rails also angle bars to fit same.
“Kindly confirm this by return mail, and oblige, “Bespeetfully yours,
B. C. Scott.”

The contract was never carried out and no property was ■ever delivered under it.

The plaintiff says that the reason for not carrying the contract out was the default of the defendants,' which the defendants deny and allege that the fault was wholly with the plaintiff. An examination of the record in the case leads us to the conclusion that there was some confusion as to the rights of the parties both growing out of the manner in which the case was tried. As we understand this contract, certain rails of the description named in the contract had already been inspected by Scott. The defendants were bound already to furnish to the plaintiff rails which would answer the description by being of the proper weight and by being T relaying rails, and all rails of the quality answering this description which had been inspected by Scott the plaintiff was bound to take, and the business of the inspector who was to be furnished under the terms of the contract by the plaintiff and paid by the defendants, was to determine only whether the rails offered by the defendants were T relaying rails of the proper weights and were either the rails which Scott had inspected or T relaying rails of the same weight and of equally good quality. The plaintiff insisted on an inspection of rails apparently not for the purpose of determining whether they were such as Scott had inspected, but whether they were such as were satisfactory to him as T relaying rails.

The evidence of Mr. George B. Schultz, who was the first inspector whom the plaintiff sent to inspect the rails, shows that when he went to the defendants’ yards to inspect rails Mr. Scott went with him and pointed out a pile of rails, and said they were the rails which he had inspected. The defendants claim that they being the rails which Scott had inspected were rails which the plaintiff must accept in fulfillment of the contract in so far as they would come under the description of T relaying rails of the right weight. They did not claim that broken or twisted rails would come under the description, but aside from that, these rails must be accepted because they were T relaying rails which Scott had inspected, and which by the terms of the contract were the kind of rails purchased.

Without stopping to quote extensively from the charge as given, it is sufficient to say that the court left to the jury the question of the quality of rails which were to be furnished under the contract, without instructing them that to the extent that the rails offered'were those which Scott had inspected, or were of as good quality as those which Scott had inspected, they were rails which the plaintiff was bound to take, and then we think the charge in this regard was misleading. A quotation from the charge will show in what "wise we think the charge was misleading; speaking of the words used in the contract “T relaying rails” the court says:

“The plaintiff claims that that term meant the relaying rails, uniform length, good ends, uniform and standard borings, straight and suitable for relaying or side track purposes. The defendants contend that, as used in the contract, the term meant the relaying rails used and suitable and capable of being used for relaying purposes.”

Again the court say:

“The plaintiff does not claim that he was ready and willing to receive and accept 56 and 60 ft. tee relaying rails that were merely suitable or capable of being used for relaying purposes, therefore, if you find that the term, ‘tee relaying rails’ meant 56 and 60 ft. tee relaying rails, capable of being used or suitable for relaying purposes, subject to the buyer’s inspection, a provision of the contract I will hereafter more particularly call your attention to, then your verdict will be for the defendant. If you find that this term, as used in the contract, was used to describe tee relaying rails of the character and grade as claimed by the plaintiff then you will consider •whether the plaintiff was ready and willing to perform his part of this contract.”

The court nowhere in the charge says (and this the defendants were entitled to have said, or in substance were entitled to have said) : “If you find that the defendants were ready and willing and offered to deliver to the plaintiff the proper amount of 56 and 60 ft. T relaying rails of the quality such as Mr. Scott inspected, then your verdict must be for the defendants, without reference to whether the rails came up to another and higher standard or not.”

The standard for determining whether the rails offered were such as the defendants contracted to furnish was fixed by the rails which would be properly described as 56 and 60 ft. T relaying rails and which were equal to those inspected by Scott.

Nowhere in the charge is it distinctly pointed out that the rails inspected by Scott fixed the standard which the defendants were to furnish, and because of this failure thus to distinctly point out to the jury the standard which was to govern in determining the quality of rails to be furnished we think the charge was misleading, and that the jury under the charge might well have reached a conclusion that the rails must be of a better quality than those inspected by Scott, and because of this and of different rulings on the matter of evidence that were based upon any theory other than that the standard was fixed by the character of the rails which were inspected by Scott the judgment is reversed and the cause remanded for-further proceedings.

Winch and Henry, JJ„, concur.


author: METCALFE, J.

text:
    EQUITY — PARTITION.
    [Harrison (7th) Circuit Court,
    1912.]
    Metcalfe, Norris and Pillius, JJ.
    *John C. Martin v. William M. Eaton.
    Partition of Personal Property Jointly Owned Maintainable In Equity.
    Partition may be maintained in equity by one of the joint owners of personal property against another joint owner who has taken .possession and refuses to make division thereof, and the. share of each set off to him in' severalty if such property be susceptible of division and such share be ascertainable.
    Appeal from common pleas court.
   METCALFE, J.

This case comes before us on demurrer to the second amended petition. This pleading avers, in substance, that the plaintiff and defendant are the joint owners of 122 bushels of wheat, and that each is entitled to an undivided half interest therein, that the defendant has taken possession of the wheat and refuses to make a division thereof, claiming that he is entitled to more than one-half; and that it is the plaintiff’s desire to have his share of the wheat set off to him in severalty, and he prays that partition be made of the joint property.

A demurrer is filed to this petition on the ground that the facts stated do not constitute a cause of action, and it is argued that under the law of Ohio no partition can be made of personal property, and that is the only question we have to decide on this demurrer.

It is true there is no statute authorizing this proceeding, at least our attention has been called to none, and so far we have been unable to find one. But in the absence of such statute does it necessarily follow that such an action can hot be maintained ? It is the province of equity to deal with the rights of parties upon principles of natural justice, and when the right ought to be enforced, is clearly just and contravenes no statute or principle of law, surely the absence of a statute specifically defining such right, or establishing some particular method of procedure in obtaining it, or the want of a precedent, should not prevent the court from doing what seems to be equal and exact justice between the parties. When two parties own personal property in common, and it is easily susceptible of division, and the share of each is ascertainable, what more appropriate method can be conceived of disposing of a controversy about it than to divide it between them,-and what sound principle can be urged against it? On principle we think the. right to partition is clear, and we are not entirely without light’ from the authorities. 21 Am. & Eng. Enc. Law (2 ed.) 1160; Weeks v. Weeks, 5 Ired. Eq. (N. C.) 111 [47 Am. Dec. 358] ; Pell v. Ball, Cheves Ch. (S. C.) 99; Robinson v. Dickey, 143 Ind. 205 [42 N. E. Rep. 679; 52 Am. St. Rep. 417] ; Pickering v. Moore, 67 N. H. 533 [32 Atl. Rep. 828; 31 L. R. A. 698; 68 Am. St. Rep. 695] ; Wetmore v. Zabriskie, 29 N. J. Eq. 62; Terry v. Smith, 42 N, J. Eq. 504 [8 Atl. Rep. 886].

The demurrer is overruled.

Fillius, J., concurs.

Norris, J., not sitting.

Note — Upon the trial of this case on the merits, at a subsequent term before Norris, Pollock and Metcalfe, JJ., the same conclusion was reached as to the right to partition as announced in the above opinion, and partition of the property was ordered.


author: JONES, THOMAS A., J.

text:
    APPEALS — BONDS.
    [Meigs (4th) Court of Appeals,
    December 12, 1914.]
    Walters, Sayre and Jones, JJ.
    Henry Shires v. Lydia and Robert Fesler.
    Appeal Bond, Regular Except Signed by Party and not Surety Amended or Renewed.
    Where steps have been taken by a party to give an appeal bond which is in proper form in every respect except that the same is signed by a party and not by a surety, and where such bond has been approved by the clerk, the court has authority to permit its amendment or renewal.
    [Syllabus by the court.]
    Appeal from common pleas court.
    Plaintiff filed his motion to dismiss the appeal upon the ground that the defendants filed no appeal bond, as required by law.
    The defendant, Lydia Fesler, also files her motion in this court for leave to amend the appeal, bond filed in this action, or for permission to give a new one to be approved by the clerk, and in connection with her motion makes profert of an appeal bond, in proper form and with sureties approved by the clerk.

      The first bond was in proper form and was signed by Lydia Fesler, one of the defendants, but was not signed by any surety. It was, however, approved by the clerk.

      B. J. Mauck and Ervin & Crow, for plaintiff.

      J. H. Hunt and A. D. Bussell, for defendant.
   JONES, THOMAS A., J.

The sole question is: whether this bond can form a basis for a new or amended bond; or whether this court has jurisdiction to permit an amendment or to require a new appeal bond.

Section 12226, G. C., provides that the appellant, “shall give an undertaking, with sufficient surety, to be approved by the clerk of the court,” etc.

Section 12232, G. C., as amended (103 O. L., 429) provides that, “When a surety in an appeal bond has removed from the state, or is not sufficient, or in form or amount the bond is insufficient, on motion, the court of appeals may order its change or renewal or that a new one be given, to be approved by the court or its clerk.”

Inasmuch as strict compliance was not had with this section, by the failure to have a surety sign the bond, it is claimed that the foregoing section having dealt particularly with the subject, we are confined to this section in the determination of our jurisdiction to allow the change or renewal of the bond.

In view of the decisions of our courts, we do not agree with that insistence.

It has been repeatedly decided that steps taken in giving an appeal bond constitute a “proceeding,” and that as such it is amendable to Sec. 11363, G. C., permitting its amendment. Negley v. Jeffers, 28 Ohio St. 90; Johnson v. Johnson, 31 Ohio St. 131; Irwin v. Bank, 6 Ohio St. 81; Ireland v. Ireland, 5 Circ. Dec. 277 (11 R. 565).

Section 11363, G. C., provides that, in furtherance of justice, before or after judgment, the court may amend any “proceeding” by adding or striking out the name of any party or by correcting a mistake in the name of a party or a “mistake in any other respect.”

It is not the appeal bond, but ‘ ‘ the steps' taken by filing an appeal bond” that constitute the proceeding. Irwin v. Bank, supra.

The mistake occurring in the steps so taken may therefore be subject to amendment.

Our courts have exercised great liberality in construing these remedial statutes, and especially in permitting amendments of appeal bonds, in furtherance of justice.

In the case of Shamokin Bank v. Street, 16 Ohio St. 1, there was not even an attempt to give an appeal bond. Here the bond was perfect in every respect, except a party signed it instead of a surety. The party attempted to file a proper bond and it was approved by the clerk as an undertaking. It has all the earmarks of an undertaking.

Applying the dicta of Welsh, J., in Shamokin Bank v. Street, supra, to such a state of facts the court would have undoubtedly held that, where a bona fide attempt had been made to give an undertaking, valid in every respect except as to the absence of a surety, there was such a proceeding that could be amended.

The motion to dismiss will be overruled, and the new bond tendered will be permitted to be filed.

Walters and Sayre, JJ., concur.


text:
    EXPLOSIVES — NEGLIGENCE—TRIAL.
    [Cuyahoga (8th) Circuit Court,
    January 25, 1909.]
    Marvin, Winch and Henry, JJ.

      Martin J. Mayer v. Isaac Brudno.
    Danger to Persons Outside From Explosion in Torpedo Factory, Question tor Jury. ,
    A torpedo factory exploded, blowing out a window in a neighboring building and Injuring the plaintiff. In an action against the lessor of the building in whch the torpedoes were being manufactured, Held: It was for the jury to say whether the business of manufacturing torpedoes was dangerous and such that an explosion might reasonably be anticipated, and whether the defendant had such knowledge of the nature of the business carried on that reasonable prudence on his part would have anticipated that an explosion might occur.
    [Syllabus by the court.]
    Error to common pleas court.

      Walter D. Meals, for plaintiff in error.

      Ezra Brudno, for defendant in error.

       Affirmed, no op., Brudno v. Mayer, 82 O. S. 436.

   MARVIN, J.

The parties here stand related to each other as they did in the court below. The suit was brought to recover damages for personal injuries said to have been received by Mamo S. Mayer, an infant, by reason of a broken piece of glass striking and cutting into her eye, which glass was a part of a window in the house in which she was, and which was caused to be broken by an explosion occurring in the building owned by the defendant.

This injury was received by Mame May 2, 1903.

That the injury was received is clearly shown and not denied; that the cause of the injury was the explosion of something in the building named is. clearly shown; that the property was at the time owned by the defendant is clearly shown, and that it was under lease at the time to a firm, the name of which ■was the Thor Manufacturing Company, and that the business of such firm was the manufacture of various devices; used largely by children on holiday occasions, and especially on the-Fourth of July, is also shown; that a part of these devices are what is known as torpedoes, which were made for the purpose of and which will explode, when being brought with force against stone or other like hard substance, and the ingredients of which were mixed for the purpose of producing a compound which would thus explode are likewise shown in the evidence, and are not shown to be explosive except when combined in such wise as to produce these torpedoes.

On the day the explosion occurred which caused the plaintiff’s injury, there was a large quantity of these torpedoes stored in the building, and in some manner there was an explosion which destroyed the building and injured many buildings for a considerable distance from the one in which the explosion occurred. The lessees of this building were in the occupancy of it, for the same purpose, for a considerable time before it was purchased by the defendant, and an agreement was made between the lessees and the defendant that the lessees might continue in such occupancy up to and after the Fourth of July. At the close of the evidence on the part of the plaintiff the court directed the jury to return a verdict for the defendant, and this is complained of. It is urged that the evidence .does not show that the defendant, could know that such explosive matter was kept in quantities which could produce a great explosion, nor indeed that a great explosion would result from keeping it in any quantities, even though there should be an accident which would cause one or more of the torpedoes to explode. We think that the evidence of Martin J. Mayer tends to show that the defendant knew what was being manufactured m this building. Testimony of John Trottner shows that Mr. Brudno was in the factory a considerable number of times while the manufacture of these torpedoes was going on; that he was shown about the premises by Mr. Cole, one of the lessees, which tends, we think, to show that he saw and appreciated what the manufactured product was. He says that he saw Mr. Cole, in Brudno’s presence, explode some of these torpedoes. From this evidence the jury might come to the conclusion that Brudno was aware that torpedoes were being manufactured in this building, and that these torpedoes were explosive; that they were small and' a' single torpedo produced but little, sound, though it was sufficient to -be heard for quite a distance and that the disturbance of the atmosphere about it would not -be great, though it would amount to something, so that it would seem that an inference might be drawn from the fact that if a torpedo of the size of that ordinary filber would produce the sound that it is shown this did produce (which sound, of course, is produced by the displacement of the air about it), that the explosion of a great quantity of them would produce a proportionately greater disturbance, and that since each was explosive the explosion of one would be likely to produce the explosion of another coming in contact, with it, and so when a great quantity of them would produce a proportionately greater disturbance, and that since each was explosive, the explosion of one would be likely to produce- the explosion of -another coming in contact with it, and so when a great quantity of them were placed in contact with each other, in a box, and then a great number of these boxes piled together, that a sudden jar or the bringing of a hard substance in contact with one or more of these torpedoes might produce a dangerous explosion. That being so, we think that the court should have submitted to the jury the question whether the facts which were shown to be within the knowledge of the defendant, were such as to charge him with knowledge of - the dangerous character of the business carried on in his building.- We think the reasoning in Bradford Glycerine Co. v. Manufacturing Co. 60 Ohio St. 560 [ 54 N. E. Rep. 528; 45 L. R. A. 658; 71 Am. St. Rep. 740], supports this view, but it is also supported by Tiffin v. McCormack, 34 Ohio St. 638 [32 Am. Rep. 408] ; Gas Fuel Co. v. Andrews, 50 Ohio St. 695 [35 N. E. Rep. 1059 ; 29 L. R. A. 337], and Defiance Water Co. v. Olinger, 54 Ohio St. 532 [44 N. E. Rep. 238; 32 L. R. A. 736].

As said in the case of Bradford Glycerine Co. v. Manufac turing Co. supra, the leading case on the question of how far the owner of property is responsible for injuries resulting to others from the use of his property in a legitimate way, but in a way which is dangerous, is the case of Fletcher v. Rylands, L. R. 1 Exch. 265. That was a case where the defendant had 'constructed the reservoir for holding a large amount of water. Under the. reservoir there had been mining, s.o that there were excavations in the earth, but these had long been covered, though not filled. The fact of their existence was unknown to the defendant, and unknown, apparently, to everybody who had anything to do with the premises. On a parcel of land adjoining the land on which the reservoir was constructed there had also been mining. The plaintiff had a parcel of land not adjoining the premises on which- the reservoir was situated, but adjoining the parcel of land which itself joined the reservoir tract. Mining was carried on by the plaintiff on his premises, and under lease from the owner of the intervening premises, who also conducted mining, and the mining so carried on in the intervening premises reached up to the excavations which had before that existed in this intervening tract. The reservoir being partly filled with water gave way, because of the excavations under it, of which the owner had no knowledge; the result was the plaintiff’s mine was flooded by the water passing from this reservoir through the excavations which had been made in mining between the reservoir property and the plaintiff’s property, and the court held that the defendant was liable, and this was affirmed on appeal to the House of Lords.

It is not necessary, however, to go as far in the case before us in order to hold the defendant liable as in the Rylands case. We think if the case had be.en submitted to the jury the question to be answered by the jury would have been, was the business carried on in these premises dangerous and such that a dangerous explosion might reasonably have been anticipated, and did the defendant have such knowledge of that business as that a man of reasonable prudence would have recognized the liability of having such an explosion as the one which occurred ?

We reach the conclusion, therefore, that the court erred in directing a verdict for the defendant; the cause should have been submitted to the jury with proper instructions.

Judgment is therefore reversed and the cause remanded.

Winch and Henry, JJ., concur.


text:
    INSURANCE.
    [Portage (7th) Court of Appeals,
    October 1, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    American National Ins. Co. v. Frances A. Euce.
    1. Limitation of Time for Filing Proofs of Loss May be Waived by Insurer.
    The requirement of a clause in a policy of insurance that proofs of loss shall be filed within sixty days after such loss occurred “unless such time is extended in writing by the company” may be waived by the company.
    2. Waiver in Writing not Required, Implied from Acts and Conduct of Insurer.
    ' Such waiver need not be in writing but may arise from such acts and conduct on the part of the company after the sixty days have passed as show an intention on the part of the company to relinquish its right to enforce such requirement.
    3. Waiver of Proofs of Loss, Question of Fact for Jury.
    Whether or not such acts amount to a waiver of such condition is a question of fact for the jury.
    [Syllabus by the court.]
    Error to common pleas court.

      W. J. Mooney, for plaintiff in error.

      Smart, Marvin <& Ford, for defendant in error.
   METCALFE, J.

This action was brought by Frances A. Euee, defendant in error, against the plaintiff in error to recover upon an insurance policy. Mrs. Euce recovered judgment in the common pleas court and the case is here on error. The petition sets out the policy which is in the standard form. The answer states a number of defenses, none of which are necessary to be considered' except the one setting out a clause in the policy requiring proofs of loss to be made within sixty days after loss unless the time is extended in writing by the company, and claiming a failure to comply with that clause.

The sole question in this case arises under this defense. It is conceded that the proofs of loss were not filed within the time required by the policy. The defendant claims a waiver of that condition by the company. We agree with what was said in argument by the learned and experienced counsel for plaintiff respecting the right of an agent to waive this condition in the policy. Neither the agent who procured the policy nor the adjuster as such had any right to waive any of the terms of the policy. Such waiver could only be made by the company itself. But whether the company intended.to waive any of its rights must be determined by the acts and conduct of the persons representing the company who had the business in hand!, .and who were giving their time to the investigation and adjustment of the loss. The company could act only through its duly authorized agents and servants, and we must look to their acts to determine that intention. The clause in the policy relating to the proofs of loss reads as follows:

“--and within sixty days after the fire unless such time is extended in writing by this company, shall render a statement to this .company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire-”

Could there be a waiver of the terms of this policy unless such waiver is made in writing by the company? The requirements of the proofs of loss is not for the benefit of the insured. It is something that must be done after the loss occurs. It is for the benefit of the insurer to enable him to act intelligently in regard to the loss. That is the object of requiring the proofs to be filed within a limited time. This requirement being for the benefit of the company it seems clear that the company has a right to waive it. A waiver means nothing more than that the company will not insist upon the letter of the contract, and if the insured fails to file the proofs of loss within the required time but the company still continues to act with relation to the loss as though the proofs had been filed, would not this amount to a waiver of the condition, or at least would' it not be evidence the jury would have a right to consider in determining whether there had been a waiver of the condition.

In the case of the Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35 [35 Am. Rep. 589], we find the following in the first paragraph of the syllabus:

“A policy required immediate notice, and proofs of loss within thirty days. The notice was given, and a protest made ■out on the day the loss occurred, which was afterward handed to the insurance adjuster when he came to investigate the loss, who made the objection that it did not state the cause of loss, but went on and made a full investigation, after which he told the insured that he did not think the insurer would pay, as he had shown no cause of loss, and that it must have been from unseaworthiness of the boat or negligence; but promised after he made his* report he would write and inform him whether the insurer would pay; and he reported all the facts, whereupon the insurer decided that it was not liable, and so informed the agents through whom the insurance was effected, without stating the ground of the decision, and the adjuster did not write to the insured as he promised. Held, that whether there had been a waiver of proof of loss by the insurer, was properly left to the jury, under appropriate instructions.”

So in the case of Mutual Life Ins. Co. v. French, 30 Ohio St. 240 [27 Am. Rep. 443] :

“A policy of life insurance contained the usual clause of forfeiture for nonpayment of premiums. Departing from the strict rules of the company, a duly authorized agent had allowed The cash part of the premium to be paid one-half cash, the other half by a short note. Upon the sixth of July, 1867, the day the premium was due, the agent received the check of the assured for the half cash due, and a six months ’ note, giving the renewal receipt for a year. The note contained the clause ‘if not paid at maturity said policy is to be null and void.’ Neither the ,eheek or note was paid. Held, the mere fact that the note was not paid at maturity, did not of itself avoid the policy. It gave the insurance company the option of declaring a forfeiture, but this option must be asserted by clear and unequivocal acts. The clause of the forfeiture being inserted in the note for the benefit of the company, may be waived by failure to act, or other circumstances evincing an intention no.t to claim the benefit of the stipulation. Whether the company has exercised, or waived their rights, is a question of fact for the jury under all of' the circumstances of the case.”

I quote also from May, Insurance Sec. 311:

A clause in the policy of insurance, that nothing but a distinct specific agreement, clearly expressed and indorsed on the policy shall operate as a waiver of any printed or written condition, warranty or restriction thereon, refers to those conditions and provisions of the policy which enter into- and form a part of the contract of insurance, and are essential to make it a binding contract between the parties, and which are properly designated as conditions, and not to those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing preliminary proof of loss. ’ ’

In Billings v. Insurance Co. 27 O. C. C. 552 (6 N. S. 567), a majority of the court held that a failure to file proofs o'f loss within the time required-by the conditions of the policy avoided the policy, and that the conditions requiring proofs to be filed within a definite time could only be vraived by the company in the express manner provided for in the policy. We are prepared to assent to the doctrine announced by the majority of the court in that case so far as it holds that no agent could waive the condition of the policy as to the filing of proofs of loss except in the manner therein, provided. We think, however, it is a different question whether or not the company itself has waived the condition of the policy by its acts and conduct after the time for filing the proofs of loss had expired.

It is sufficient for us to say further in regard to this case that the majority of this court are in accord with the views expressed by Judge Parker in the dissenting opinion and regard it as the true expression of the law.

From the cases cited it seems to us reasonably clear that the company may waive a provision in the policy made for its own benefit, and generally whether or not. there had been such waiver will be a question for the jury to determine. So in this case we are of the opinion that whether or not there was a waiver by the company of the condition requiring proofs of loss to be filed within sixty days was a question of fact for the jury, or the jury being waived a question of fact for the trial judge. In this case a jury was waived and the case submitted to the trial judge, but the rule is the same whether the case was tried to a jury or to a judge. This court has no right to disturb the werdict unless it is manifestly against the weight of the evidence.

After the fire Mrs. Euce put her case in the hands of Smart, Marvin & Ford, attorneys in Cleveland. Mr. Marvin, one of her attorneys, called up by telephone Mr. F. C. Carroll, a well-known insurance adjuster at his office in Cleveland and inquired if he had anything to do with the ease, and Mr. Carroll informed him that he had, and also informed him that there were some suspicious circumstances regarding the fire, and that he was making an investigation. Mr. Carroll also said that the company believed that Euce set fire to the building and that there wras other insurance, and he did not believe the company would pay; but he and another adjuster were looking the matter up and when they got sufficient information they would let him know. Possibly this telephone conversation was incompetent, as Mr. Marvin was not acquainted with Carroll and did not know his voice. In any event it would only serve as an introduction to what followed. Some .time afterward, however, Marvin again called up Mr. Carroll and had another talk with him and Carroll said they were still making an investigation, the fire marshal had been at Kent, also that there was another adjuster employed by another company looking into the matter and when he heard from them he would let him know the result. Marvin says this was about the first of March and would be more than sixty days after the loss occurred. Two or three telephone conversations followed between Marvin and Carroll relative to the adjustment of the matter without litigation, Mr. Marvin insisting upon a settlement of the loss and Mr. Carroll saying they could not or would not settle while the investigation ■ ■was on. That condition continued until the following November, when Mr. Carroll informed Marvin that the company would not pay the loss and gave as a reason for refusing to- do so that the grand jury of Portage county had indicted Mr. Euce for setting fire to the property. In none of these conversations was anything said regarding the failure to file the proofs of loss, within the sixty days required by the policy, and when Mr. Carroll finally informed Mr. Marvin that the company would not pay the loss it was put upon an entirely different ground than that of the failure to file the required proof. This was several months after the time for filing the proofs of loss had expired.

What is necessary to constitute a waiver? The company-had an undoubted right to require that the proofs of loss should be filed within the time and in the manner required by the. policy. A waiver is an intentional relinquishment of a known right. Bennecke v. Insurance Co. 105 U. S. 360 [26 L. Ed. 990]; Hoxie v. Insurance Co. 32 Conn. 21 [85 Am. Dec. 240] ; or such conduct as warrants an inference of the relinquishment of such right. Burnham v. Casualty Co. 117 Mich. 142 [75 N. W. Rep. 445]; United Fireman’s Ins. Co. v. Thomas, 82 Fed. Rep. 407 [27 C. C. A. 42; 53 U. S. App. 517; 47 L. R. A. 450].

It happens where one in possession of a right conferred either by law or by contract does something inconsistent with the existence of the right or his intention to rely upon it. Bishop, Contracts Sec. 792.

At the expiration of sixty days after the loss the company could have planted itself squarely upon the failure of the insured to file such proofs and no question could have arisen of its relinquishment of such right. The company, however, did not see fit to do that. The matter was left open- for a period of several months after the time had expiréd and no question was made by tbe company with regard to the proofs of loss, and finally when the intention of the company not to pay was announced its decision was put upon an entirely different ground than that of the failure to file the proofs of loss.' All of these acts of the company were evidence for the jury to consider in determining the question whether or not the company had waived its right to stand upon the failure of the plaintiff to file the proofs in time. "We are clear that the finding of the lower court cannot be reversed upon this question.

Let it be understood we do not hold that the acts of the company as shown by the evidence as matter of law constitute a waiver of the conditions of the policy. "We do hold that they are evidence tending to show such waiver, and that the finding of the trial court upon that question is conclusive, and not manifestly against the weight of the evidence.

The judgment is affirmed.

Norris, J., concurs.

Pollock, J., dissents.