author: Sherick, J.

text:
    Willard, Appellee, v. Fast, Appellant.
    (No. 342
    Decided November 27, 1944.)

      Mr. G. W. Chorpening, for appellee.

      Mr. G. P. Gongwer, for appellant.
   Sherick, J.

This appeal on questions of law is from a judgment entered on a jury’s verdict in favor of plaintiff in an action for damages to person and property, growing out of an automobile collision at the intersection of two county highways over neither of which travelers had preferential rights as to travelers over the other.

Plaintiff’s cause of action is based on a single negligent act in that it is claimed the accident was caused by reason of the fact that defendant was operating his automobile at a “high and dangerous rate of speed, 50 to 60 miles per hour” in approaching the intersection. The defendant’s answer is a general denial.

Inasmuch as three of the claimed errors relate to the trial court’s refusal to direct a verdict in defendant’s favor at the conclusion of plaintiff’s case, and at the end of all the evidence, and to the court’s refusal to award judgment notwithstanding the verdict, a careful reading of the record became imperative, which developed the following operative facts, none of which are in dispute.

The intersecting county highways are straight, 'at right angles to each other, of gravel construction and forty feet in width at and approaching the intersection. Each had thereon a worn single track. Plaintiff stated that he was proceeding south at a speed of from 25 to 30 miles per hour; that from any point from 800 feet north of the intersection to the intersection, he could look to his right and see the east-and-west road from the intersection to the brow of an elevation 250 feet distant; that when he was from 100 to 125 feet from the intersection, he looked to his right and did not see the defendant’s car within the 250-foot space; that he then looked to his left and observed no one approaching; and that he proceeded on into the intersection and then saw the defendant for the first time. The collision followed immediately. The car of the defendant struck the middle section of plaintiff’s coupe. Plaintiff stated that he did not again look west until he had entered the intersection.

Defendant said that he was driving east; that he did not see the plaintiff until he appeared before him at the intersection; and that he was going at from 30 to 35 miles per hour. There was one disagreement in the testimony, irrespective of the positions of the vehicles after the accident, and that related to the distance between the intersection and the brow of the hill west on the east-and-west road. Defendant placed "it at 90 paces or 270 feet.

Both litigants were familiar with the intersection and both roads. There were no stop signs. It was a fall morning and the time eight o’clock. A heavy mist or light rain was falling. Both parties had their window wipers in'operation. No one other than the litigants saw the collision. It is evidenced that the front of defendant’s car was badly damaged and that plaintiff’s car was badly stoved in and was eventually sold as scrap metal. After the accident, defendant’s car was headed east and rested 9 to 10 feet east of the intersection, off the berm. Plaintiff’s car was south and east of defendant’s ear in an open field. Both cars were in an upright position. A deputy sheriff was permitted to testify under objection that in his opinion plaintiff’s car was hit with considerable force. There is no.direct evidence or any other evidence of defendant’s claimed negligent speed.

Defendant contends that there is no proof of negligence on his part, and that plaintiff’s evidence clearly established that plaintiff' was negligent in failing to look when such looking would have been effective, and in his failure to accord defendant the right of way in accordance with Section 6307-40, General Code. Defendant further urges that the mere happening of an accident can never presuppose negligence. He asks not only that the judgment be reversed, but that this court enter final judgment in his favor.

Upon the other hand, plaintiff insists that the judgment be affirmed. He maintains that when he looked to his right from a point 100 to 125 feet north of the intersection and did not see the defendant within the 250-foot section of the east-and-west road west of the intersection, he could safely assume that he could enter and cross the intersection before any one approaching from his right could reach and enter it; that he had a right to rely upon defendant’s approaching the intersection in a “lawful manner”; that the fact that he did so look and saw only an empty stretch of road is a proven fact from which the reasonable inference is deductible, as a mathematical computation, that defendant must have been traveling at a speed of from 50 to 60 miles per hour; and that this “inference” establishes that defendant was approaching the intersection in an unlawful manner which deprived him of his preferential rights and afforded plaintiff the right to proceed on uninterruptedly across the intersection.

Plaintiff also claims that the force testified to by the deputy sheriff, the damage to the respective cars and their position after colliding, lend support to the plaintiff’s claim of defendant’s unlawful speed. This court cannot see that the last noted claim adds anything to the inference of speed. If the cars at the point of impact were moving at speeds of 25 to 35 miles per hour, then it is to be expected that considerable damage would follow as a natural consequence. There was nothing in the evidence by way of testimony or exhibits which showed excessive speed on the part of the defendant.

It is well understood in this state that the mere happening of an accident does not presuppose actionable negligence on the part of either party. That is a fact which the party asserting must prove by direct evidence or logical inference predicated upon proven facts. Now what is the proven fact in this case? Plaintiff said that he looked to his right when he was 100 to 125 feet from the intersection and did n&t see the defendant approaching. Upon this fact alone the inference of unlawful speed is predicated. Is it a logical inference? Is it such proof as is sufficient to overcome the effect of the established rule that actionable negligence is never to be presumed from the mere happening of an accident?

If it be so sufficient, it is inescapable that negligence is proven from an inference which is nothing more than a presumption. The two terms are relatively closely akin when employed in the sense here encountered and are in fact synonymous. When they are interchanged, little violence is encountered either in a grammatical or legal sense.

If it is countenanced that negligence of excessive speed can be proved by a litigant’s testimony to the effect that he looked when he was 100 to 125 feet from an intersection, and did not see anyone approaching from his right and estimated by mathematical computation that he would arrive at an intersection before anyone on his right, travelling in a “lawful manner,” could, a dangerous precedent is approved. Pew men and fewer women are good judges of relative speeds and distances. Sight is far from being infallible as human experience teaches. Let us assume, as is here claimed, that the driver on the right, who would have the statutory preferential right if he were approaching in a lawful manner, is actually approaching in an unlawful manner. How is the unfavored motorist to learn that fact if he looks but once when he is 100 to 125 feet distant, but is thereafter concerned only with travel to his left, and proceeds serenely forward with undiminished speed into the intersection and the path of the oncoming' car? The answer is of course by sad experience rather than by the light of experience of the past.

The Legislature in enacting Sections 6307-2 and 6307-40, General Code, was attempting to make highway travel safe at intersections. It intended to and did depart from the rule of common law as to the exercise of clue care for one’s own safety (but not entirely so as will be hereinafter pointed out) and to substitute therefor statutory rules of conduct which gave to the traveller on the right the absolute preferential right to proceed onward uninterruptedly in a lawful manner. He loses this right, however, if he approaches in an unlawful manner.

Section G307-40, General Code, reads as follows:

“Excepting where otherwise provided the operator of a vehicle * * * shall yield the right-of-way at an intersection to a vehicle * * * approaching from the right. ’ ’

The court in Morris v. Bloomgren, 127 Ohio St., 147, 154, 155, 187 N. E., 2, 89 A. L. R, 831, considered Section 6310-28a, General Code, now Section 6307-40, and the contention of the unfavored driver, and had this to say:

‘ ‘ * * * that,, if the driver, who is required to yield the right of way, reaches the intersection first, he has a superior right to proceed, or at least a right to proceed equal to that of the vehicle approaching from his right. There is no such limitation or qualification found in the statute.”

It was pointed out that if this was the construed rule collisions would frequently result.

We point out that Sections 6307-2 and 6307-40, General Code, give the favored driver the right of way if he is approaching in a lawful manner, but that he shall lose his preference if he is driving unlawfully. It must be noted with equal force that the latter section does not say that the disadvantaged driver may proceed uninterruptedly if the one on his right is approaching unlawfully. To placidly ignore him is to court disaster.

It is perceived that Morris v. Bloomgren, supra, is a case wherein the favored driver was plaintiff, which is the converse of the present controversy. The principal question in that case was more concerned with the rights and duties of the favored motorist. Here we are perplexed with the rights and duties of the less favored driver. We have previously pointed out that ordinary care of the common law may still be a rule of conduct in some degree in cases like these. In the fifth paragraph of the syllabus of the Morris case the court declares as the law, that if a favored driver discovers that the other is not yielding the right of way, he must exercise ordinary care not to injure the other.

Clearly, the statutes being silent, when an unfavored driver discovers that the motorist on his right is not approaching an intersection in a lawful manner, and they both arrive at the intersection at or about the same time, it becomes the duty of the unfavored driver to not only refrain from injuring the other but. to also use ordinary care for his own safety.

Did plaintiff exercise ordinary care in this instance for his own safety? We not only think that he did not do so but that his own testimony clearly exhibits contributory negligence which should preclude his recovery, even if we are to grant plaintiff’s claim that his inference of negligence sufficiently proved defendant’s negligence of excessive speed.

We are of the opinion that plaintiff, after looking to his right when he was 100 to 125 feet from the intersection, failed thereafter to exercise ordinary care for his own safety. He might thereafter have approached and entered the intersection but should not have entered the path of an approaching east-bound car without again looking to his right. Plaintiff contends that the law does not prescribe the distance within which one must look in order that' such looking may be termed effective. However, if this be true, we now hold in a situation of this kind that such looking ought to be within.such a distance that an unfavored driver may safely bring his vehicle to a stop before entering the path of an oncoming car approaching from his right. We believe that such a rule is consonant with the purpose of the statutory intersection rules and the servient driver’s own safety.

Again reverting to Morris v. Bloomgren, supra, 154, it is stated therein that:

“Ordinarily the operator of a vehicle is able to ascertain before he reaches the intersection whether another vehicle is approaching from his right; but, in any event, after entering the intersection he has a further leeway of some distance between the point of entering the intersection and its center for ascertaining such approach before he drives into the path of the vehicle possessing the right of way.”

That conclusion ought to be equally true, even if the unfavored driver then learns for the first time that the one on his right is approaching in an unlawful manner. To our notion any other rule would promote insecurity at intersections.

It follows, irrespective of defendant’s negligence or lack of proof thereof, that plaintiff, by his own testimony, failed to exercise due care, that is ordinary care, for his own safety, and that such negligence forbids him relief.

The judgment is reversed, the petition is dismissed and final judgment is entered for defendant. Finding as we do it becomes unnecessary to pass upon the further errors assigned.

Judgment reversed.

Montgomery, P. J., and Putnam, J., concur.


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Laymon, Appellee, v. Bennett et al., Appellants.
    (No. 889
    Decided December 22, 1944.)

      Mr. H. L. Bell and Mr. C. W. Elliott, for appellee.

      Mr. Clinton B. Boyd, for appellants.
   Matthews, J.

The trial court found in favor of the plaintiff on both causes of action stated in the petition and entered judgment on such finding. The defendants filed notice of appeal on questions of law and fact and gave an appeal bond. The first cause of action is clearly one at law, but the second cause of action is as clearly a chancery case. The appeal, therefore, vests this court with jurisdiction to hear this case de novo and imposes upon it the duty, if necessary, of hearing and weighing the evidence as to the second cause of action, uninfluenced by the decision of the issues by the trial court upon such of the evidence as was before that court.

The only relief sought on the first cause of action is the possession of certain described real estate and an accounting of the rents. The plaintiff predicated her right on the averment that the legal title was transmitted to her upon the death of Charlotte Zeidler, by reason of the fact that she was the only child and heir-at-law of Charlotte Zeidler and also by the terms of the will of Charlotte Zeidler. It is conceded that the plaintiff is the only child and heir-at-law of Charlotte Zeidler and that if Charlotte Zeidler owned any title to this real estate at the time of her death, it devolved upon the plaintiff both by reason of the relationship and the terms of Charlotte Zeidler’s will.

But while the plaintiff alleged in her first cause of action that she acquired the legal title as aforesaid and was entitled to the immediate possession, she also alleged a contract that Charlotte Zeidler entered into with the defendants Ferris E. Bennett and Mattie L. Bennett in relation to the real estate and a deed which she executed and delivered to them in her lifetime. ' In her first cause of action the plaintiff alleged as a conclusion of law that this contract provided only for a. transfer of an estate for the life of Charlotte Zeidler, that the deed conveyed only such a life estate, and that upon her death the title devolved upon the plaintiff for the reasons already stated. The defendants place a different construction upon the contract and deed. They contend that the contract provided for the conveyance of a fee simple title and that the deed conveyed a fee simple title. It is necessary to examine and construe these documents, as pleaded.

By the agreement, Charlotte Zeidler agreed “to execute a deed of general warranty excepting taxes,” conveying the premises in consideration of the agreement of the defendants, Ferris E. Bennett and Mattie L. Bennett, to pay $200 cash in hand, and also to pay $20 per month “so long as” Charlotte Zeidler “shall live” and the further agreement “to provide a home, furnish board and room and allow her to enjoy said premises as a home for the remainder of her life.” The agreement contained this further provision:

“The decease of said second party-without filing an action in Common Pleas Court of Butler county, Ohio, against said first parties on a claim growing out of this agreement, shall be deemed full satisfaction of this agreement by said party of the first part and full compliance therewith, and parties of the first part shall thereupon enjoy an absolute and unconditional title in fee simple to said premises.”

The deed was executed immediately thereafter. It is on the standard form of general warranty deeds with modification to conform to the special case. In the granting clause, the title was conveyed to Ferris E. Bennett and Mattie L. Bennett “their heirs and assigns.” The printed word “forever” was cancelled, and following the description we find the following: “So long as said grantees comply with the promises and provisions on their part contained in the agreement executed of even date, of which the following is a copy.” Then came an exact copy of the agreement in quotations and the sentence was ended with the words “and no longer.” The habendum clause was: “To have and to hold the same to the only proper use of the said Ferris E. Bennett and Mattie L. Bennett, their heirs and assigns so long as said grantees comply with the promises and provisions of said agreement on their part to be performed.” This was followed by covenants of general warranty, excepting tbe taxes and assessments.

The deed was duly recorded.

There was no allegation that the defendants failed to comply with their agreement in any respect.

That the grantor intended to convey some estate cannot be denied. And in view of Section 8510-1, General Code, she was not limited to any set phrase in expressing that intention. Whatever language she chose to use, would convey the title she had in the described real estate “unless it clearly appears by the deed, * * * that the grantor intended to convey * * * a less estate.” Section 8510-1, General Code.

In this case there is no doubt about the estate intended to be conveyed — the estate designated in the contract. Incorporating the entire contract into the deed, certainly carried that intent with it. Unless the contract is so vague on that subject as to be unenforceable, the deed has the effect of transferring the title for which the defendants contracted.

In 40 Ohio Jurisprudence, 977, it is said that unless the language of the contract indicates either expressly or impliedly the kind of title to be conveyed ‘ ‘ the vendor is obligated to convey a ‘marketable’ title * * * and the title is to be to an estate in fee simple in such property unless some other estate is expressly designated.” See, also, 27 Ruling Case Law, 485 et seq. Measured by this rule, the provision of the contract by which Charlotte Zeidler agreed to execute a “deed of general warranty * * * conveying the following described premises” was sufficient to bind her to convey her entire estate without any additional words indicating the intent of the parties. Indeed the modern rule is that such language would require the transfer of a marketable title in fee simple. Id.

But there are other words that leave no possible doubt as to tbe quantum of tbe estate that the defendants were to receive from Charlotte Zeidler. The part of the agreement quoted above ends — “And parties of the first part shall thereupon enjoy an absolute and unconditional title in fee simple to said premises.” In other words, if they performed their agreement they were to have an absolute fee simple title. We can think of no clearer language in which to express the intent of the parties. In the presence of such language, rules of construction serve no purpose. Charlotte Zeidler had agreed to execute the deed and it was executed to convey the estate contracted to be conveyed as required by law. It could have no other purpose.

We think this agreement not only does not clearly show an intent to convey less than Charlotte Zeidler’s entire title (which Section 8510-1, General Code, requires in order to so limit it) but clearly shows an intent to convey her entire estate. Only the existence of some iron rule requiring the use of some words of art, such as “heirs” which was abolished by Section 8510-1, General Code, would justify the court in disregarding this positive declaration of the intent.

We are not considering here the language of a testamentary gift or a gift by deed. This is contractual language creating contract rights inter vivos, enforceable by actions at law and suits in equity. After this contract was signed, neither had the right to withdraw. Charlotte Zeidler had no right in her lifetime by unilateral action to change the relation established by the contract. Rights had been created. If the defendants fully performed and Charlotte Zeidler refused to execute the deed when the time for doing so arrived, they could have compelled her to specifically perform, and the cause of action would have survived her death.

Our conclusion is that the facts pleaded in the first cause of action show the pleader’s legal conclusion that the plaintiff' was the owner and entitled to the immediate possession cannot be drawn from the pleaded facts. It is clear that so long as the deed, the terms of which are pleaded in the first cause of action, remains, it presents a complete bar to the action to recover possession. That conclusion brings us to a consideration of the appeal on questions of law and fact from the decree setting the contract and deed aside, based on the second cause of action.

The relief sought on the second cause of action beyond that sought on the first cause of action was a declaration that the contract and deed were null and void and conveyed no interest on the ground that Charlotte Zeidler “was incapable of executing the .same, that their execution was procured by undue influence, that their terms were unconscionable, and that it may cancel and rescind said instruments.”

To obtain a decree setting aside and holding for ■naught a formal written document, such as a deed, a higher degree of proof is required than a bare preponderance which would be sufficient in an action for the recovery of money. Whether the ground asserted for setting aside the formal written instrument be lack of

■ capacity, fraud or undue influence, the plaintiff cannot succeed unless she establishes either lack of mental capacity, fraud, or undue influence by clear and convincing evidence.

The first paragraph of the syllabus to Willis v. Baker, 75 Ohio St., 291, 79 N. E., 466, is:

“In an action by a wife, or a guardian in her be- :• half, to have declared null and void a conveyance of ■ her lands on the ground that she was induced to make such conveyance by undue influence, or on the ground that she was not conscious of her act in executing the same, and it appears from its face that it was duly executed and acknowledged in the manner and form prescribed by the statute, the burden is upon the plaintiff to establish one of said grounds by clear and convincing proof, and a mere preponderance of the evidence in its favor is not sufficient.”

In 17 Ohio Jurisprudence, 409, it is said:

“It is settled in Ohio, as indicated by repeated decisions of both the supreme and the lower courts, that written instruments, especially deeds executed in conformity with the provisions of the Deeds Act, shall not be rescinded or set aside except upon proper allegations which are supported by evidence of a clear and convincing character. A mere preponderance of evidence sufficient to determine verdicts in ordinary civil actions is not sufficient. The rule has been applied in an action to have a conveyance set aside on the ground of undue influence, or want of capacity,, or because the plaintiff was so intoxicated as to be deprived of the use of his faculties.”

A long list of Ohio cases in support of the text is cited. See, also, 22 Ohio Jurisprudence, 101.

Charlotte Zeidler was about 89 years old when she executed this contract and deed. Their terms show the purpose of executing them was to insure that she would have a home and the necessaries of life for the remainder of her life. The grantees would get nothing unless they furnished her with them. Their breach of the contract during her life would deprive them of the title to the property that had been conveyed to them, and they would lose whatever they had previously paid her. It was in no sense an improvident arrangement. There is nothing inherent in it to indicate lack of mental capacity, undue influence, or fraud.

There was no secrecy employed. The daughter was advised by the Bennetts in advance of her mother’s intention to enter into this arrangement with them and undoubtedly the Bennetts surrounded the execution of the instruments with many incidents to make it, or appear to make it, her deliberate and uninfluenced act. And the plaintiff now cites those precautions as evidence of lack of capacity and undue influence. Undoubtedly, they show a consciousness that the action might be challenged. On this record, we are unable to conclude that they show anything more. They were dealing with an old woman, but old age does not create a legal ostracism. It is not necessary to attribute unworthy motives in order to conclude that a person dealing with her would proceed with circumspection and make sure that what was done would be in her interest. In this case,' the terms of the contract were beneficial to her. It insured to her maintenance for the rest of her life without the sacrifice of title to any property except on that condition. We find nothing in the contract that would cause us to attach a sinister motive to the precautions taken.

We have read and weighed all the evidence in this case to discover whether the plaintiff: had sustained the burden of proving by clear and convincing evidence that undue influence or fraud had been practiced. Much of the effort to prove fraud and undue influence was directed to proving the conduct of various persons other than the defendants in their relation to Charlotte Zeidler. As to such persons, the evidence fails to convince us of fraud or undue influence — and the record is almost, if not quite, barren of evidence that such persons were acting in concert with the defendants. Without such evidence, their conduct could not be a basis for invalidating the contract between these parties.

In 19 Ohio jurisprudence, 469, Section 190, it is said:

“But there is no authority for the doctrine that an innocent party to a contract' supported by a consideration moving from himself shall Tbe deprived of its advantages because of the fraud of another with whom he is not in privity.” - ,

Upon the subject of mental capacity, many witnesses testified. Several gave it as their opinion that Charlotte Zeidler was of unsound mind. There was some evidence of what seemed to be eccentric action on her part to serve as a predicate for that opinion. The plaintiff, however, did not express a positive opinion. There was a greater number of witnesses with equal or greater opportunity to judge of her mental condition who testified that she was.of sound mind. And it is significant that during all this time she was transacting the day-by-day business transactions incident to conducting a home, and, in addition, made an arrangement for her burial, and made a will sometime after executing this deed, and this will was probated with the plaintiff’s consent. At the time, nor at any time during. Charlotte Zeidler’s life, did any one question her mental capacity. It was only after her death that the claim was made notwithstanding the plaintiff knew of all the facts and could have moved to prevent the consummation of the transaction by the appointment of a guardian. The most probative item of evidence in favor of the plaintiff is the age of Charlotte Zeidler at the time, but as against that there is abundant evidence that in spite of her age, she had ample capacity to contract.

As to the standard of capacity, we quote from 28 American Jurisprudence, 701:

Of course, not every substandard mentality or even every mental infirmity has -the effect of rendering the afflicted person disabled for the purpose of entering into contracts and making conveyances. The law does not presume to make a distinction between much and •little intellect, so far as contractual capacity is concerned, or to require a full appreciation, by a party thereto, of all the technical intricacies of a transaction, as a condition.requisite to the validity of the contract or deed executed therein, although it may take mental weakness into account in determining whether undue influence or fraud has been perpetrated.”

And upon the significance of old age, the same authority says at 702:

“Neither old age nor failing health constitutes in itself incapacity to execute a deed or enter into a valid contractual obligation. ’ ’

And, upon eccentricity, at page 703, it is stated:

“Mere eccentricity or abnormality in personality or conduct is of common occurrence and, while frequently confused with insanity or incompetency, does not affect the validity of a contract, or of a conveyance of real property. Even partial insanity will not render a contract voidable unless it exists in connection with or is referable to the subject matter of the contract. Similarly, a delusion, if unconnected with the transaction in question, is not sufficient to affect the validity of a contract consummated by the person thus affected. ’ ’

See, also, 9 Ohio Jurisprudence, 249.

Our conclusion is, that the plaintiff has failed to sustain the burden of proving by clear and convincing evidence that Charlotte Zeidler lacked the capacity to contract required by law.

For these reasons, the court finds generally on the issues joined in favor of the defendants and a decree may be presented in accordance with this finding.

Decree accordingly.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus and opinion.


author: Hildebrant, J. Ross, P. J.,

text:
    Braswell, Appellant, v. American Life & Accident Ins. Co. of Kentucky, Appellee.
    (No. 6443
    Decided February 5, 1945.)

      Messrs. Falk £ Paul, for appellant.
    Mr. Milton M. Bloom, for appellee.
   Hildebrant, J.

From a judgment denying recovery on two policies of industrial insurance, other than a return of premiums, appeal is had here on questions of law.

In 1934, the mother of the deceased assured made application for and obtained two policies of industrial insurance on his life, giving his name as Erasters Bras-well, and the date of his birth as March 18, 1919, an address on Foraker avenue, with herself, Elberta Bras-well, as beneficiary. It does not appear that the assured, during his lifetime, knew of the issuance of the above policies.

Some time after issuance of the above policies, the Braswell family moved from the Foraker avenue address to Lockland, Ohio, and the premium payments were collected by a different agent of the company.

In 1942, two additional applications. for industrial insurance, with his wife, the plaintiff here, as beneficiary, were made, and policies were issued with premium payment handled by the agent of the company serving the Walnut Hills arqa, within which the assured was then living. In the latter two applications and policies, the name of the assured was given as Ernest Braswell, and date of birth as March 18, 1918.

Following the accidental death of the assured, on proper application and proof, the proceeds from the two 1934 policies were paid to the mother.

On plaintiff’s application, payment was refused, other than a tender back of premiums paid, the refusal being based on the following provisions contained in the A and E policies respectively:

“No liability is assumed by the company prior to the date hereof, nor unless this policy has been manually delivered to the insured in person, and the first weekly premium paid while the applicant is alive and in sound health and free from the effects of any injury, and unless otherwise stated in the ‘ Space for Endorsements ’ .below in a waiver signed by the president or secretary of the company, this policy is void and the liability of the company shall be limited to the return of the premiums acutally received by it, if there is in force upon the life of the insured a policy previously issued by this company, and the company shall not be presumed or held to know of the existence of any previous policy, and the issuance of this policy shall not be deemed a waiver of this condition.”
“Unless otherwise stated in the ‘Space for Endorsements ’ below in a waiver signed by the president or secretary of the company, this policy is void if the insured has had within one. year before the date hereof any chronic disease or complaint, or if there is in force upon the life of the insured a policy previously issued by this company, and the company shall not be presumed or held to know of the existence of any previous policy and. the issuance of this policy shall not be deemed a waiver of this condition; and in either of the foregoing cases, the liability of the company shall be limited to the return of the premiums actually received by it under this policy.”

Following the accepted and customary practice, the company records were kept by policy number, not .by name, and the record discloses that the company had no actual knowledge of the duplication of policies on the same assured until the plaintiff made application following his death.

The sole question here is as to the validity of the conditions quoted from A and E policies above. ■

The substance of the plaintiff’s contention is that such provisions relied on by the defendant here are unreasonable and, therefore, invalid and unenforceable, that the company stands charged with the knowledge of the issuance of the prior policies by itself and by issuing the subsequent policies and collecting premiums has waived the conditions set forth above, and that it is, in effect, estopped to rely on the same.

The court has been unable to find Ohio authority dis-positive of the case, and there seems to have been a division of authority in other states, turning, however, largely on the particular facts.

Under the facts here, the weight of authority seems to conclusively establish the validity of such provisions and conditions in the policy.

In 29 American Jurisprudence, 477, Section 587, it is 'stated:

“As to an industrial insurance policy, it has been held that a condition therein avoiding it unless endorsement is made thereon of the fact that other policies have been previously issued by the insurer is a reasonable one which the insurer may properly impose, and a defense based upon such a condition does not involve the issue of fraud.”

In the case of Golden v. National Life & Accident Ins. Co., 189 Ga., 79, 5 S. E. (2d), 198, 125 A. L. R., 838, and in the A. L. R. annotation beginning at page 846, the subject matter here is thoroughly discussed, the division in authority is pointed out and»cited, and the reasons for the division and the distinction between the cases are set forth, At page 847, the following appears :

“The question suggested by the present subject is one which admits of no categorical answer, and involves some definite conflict of authority, even though, for the most part, the cases are admittedly decided upon their own peculiar facts. The question practically always involves the construction and application of a provision or condition of the policy against recovery, or full recovery, in case prior insurance exists in the same company, without a proper indorsement on either prior or subsequent policies authorizing additional insurance therein. The result in a particular case must depend also upon various facts relied upon to show, a waiver of, or an estoppel to enforce, the condition. Among the important factors involved in the decisions are: the effect of the fact that the insurer keeps its records of insurance policies by number and, as in the case of numerous industrial policies, this is a reasonable and practical method; the question whether the provision in the policy relied upon by the insurer is in the nature of a forfeiture clause or a mere limitation of the amount of recovery, as for the premiums paid; the authority of the agent having knowledge of the other insurance; the good faith of the insured, or his ignorance of the other policy, as where it has been procured by another without his knowledge.
" There is probably no disagreement as to the proposition that a policy condition rendering it void in case of the existence of prior insurance in the same company may be waived by certain conduct on the part of the insurer, other than that prescribed by the condition, following the receipt of knowledge of the fact by the persons specifically authorized to grant permission for subsequent insurance with the company, or even by agents, clerks, or other representatives of the insurer under some circumstances. In such cases it may be said that the insurer possesses actual knowledge of the fact,'which is, of course, a sufficient predicate upon which to base an estoppel or waiver, by subsequent conduct, such as issuance of subsequent insurance, delay, failure to cancel, or the acceptance of premiums. The difficulty presented in the majority of the cases arises because of uncertainty as to what constitutes imputable knowledge, and as to whether or not it was acquired by a representative of the insurer whose position or authority was such that his knowledge became that of the insurer, or as would empower him to effect a waiver.”

Generally, the factual situation necessary to cases sustaining defense to or limitation of recovery are set forth at page 853, as follows:

“Although, as previously indicated, there is authority to the contrary, some cases have taken the view that failure to comply with a provision that the existence of prior insurance shall render subsequent insurance with the same insurer void or unenforceable if written permission for the latter be not secured from designated persons constitutes a defense to the enforcement of the subsequent insurance, or at least limits the liability of the insurer to the premiums paid therefor, especially where absolute forfeiture of paid premiums and extinction of all liability of the insurer is not a necessary consequence, and there is an absence of evidence establishing actual or imputable knowledge on the part of the insurer of the prior insurance, or of conduct with reference to the subsequent insurance amounting to a waiver of the provision, in view of such knowledge. The question of knowledge often involves particular notice of or an inquiry into the manner of the insurer’s record-keeping.”

Some trial courts have confused the law applicable to negotiations and applications for a policy of insurance with the law applicable to a condition in the policy itself. There is a difference between obtaining a contract through misrepresentation as to a fact and making the existence of that fact a condition upon which the contract, by its written terms, is dependent, as in the instant case. McAuliffe v. Met. Life Ins. Co., 93 N. J. L., 189, 107 A., 258; Chorney v. Met. Life Ins. Co., 54 R. I., 261, 172 A., 392.

That the defendant here had authority to limit its contract by imposing the conditions quoted cannot be questioned. The question here then is resolved to be: Where a policy of life insurance contains a condition precedent, can there be a recovery where the condition precedent has not been complied with?

Specifically, the method of keeping the accounts by policy number has been approved in Fisher v. Met. Life Ins. Co., 115 N. J. L., 582, 181 A., 31, 101 A. L. R., 1133; Taylor, Admx., v. Home Life Ins. Co. of America, 125 Pa. Super. Ct., 529, 189 A., 722, with facts almost identical with the instant case, and in numerous other cases appearing in the annotation in 125 A. L. R. This court cannot say that such method is unreasonable.

The instant case is strengthened by its facts which clearly show no actual knowledge, and by reason of the different agents in different localities collecting the premiums and the discrepancy in name and date of birth, a complete absence of any facts from which knowledge might be imputed to any officer in authority to issue the policy or waive any of its conditions.

The judgment is, therefore, affirmed.

Judgment affirmed.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus and opinion.

Ross, P. J.,

concurring. I concur in the judgment, for the reason that the name of insured and date of birth in the policies were not identical, and the insurer was, therefore, not put on notice of the earlier policies, covering the insured.


author: Carpenter, J.

text:
    The Erie County United Bank, Appellant, v. Bogart, Appellee.
    (No. 582
    Decided October 16, 1944.)

      Messrs. Young & Young, for appellant.

      Messrs. Flynn, Frohman, Buckingham, Py <£ Kruse and Mr. Thomas G. Williams, for appellee.
   Carpenter, J.

The plaintiff, The Erie County United Bank, sought herein to replevin from defendant, Howard C. Bogart, a Buick automobile. The judgment was for defendant and awarded $500 damages. The facts are practically undisputed.

On April 9, 1940, Ralph O. Nottke, a dealer in automobiles, presented to the bank what purported to be a combined note for $924 and a chattel mortgage on the automobile in question, on which instrument the signature, of the claimed purchaser of.the automobile, Wilson Seels, was forged. The next day Nottke, ostensibly acting under the statute governing titles to motor vehicles, Section 6290-2 et seq., General Code, presented to the clerk of courts of Erie, county, a power of attorney on which the signature of Wilson Seels was forged. A deputy clerk in that office, R. Bang, acting as a notary public, falsely certified that the power of attorney was sworn to before her by Seels. Exercising the power apparently contained in that instrument, Nottke, on'behalf of Seels, applied for a certificate of title, stating that the bank held a first lien for $924, and presented the forged chattel mortgage and a legal certificate of title of the manufacturer, duly assigned to Nottke. On those papers the clerk, by the, deputy, R. Bang, issued a certificate in the name of AVilson Seels, with a notation of the bank’s lien. On the same day the certificate, with the forged mortgage stamped by the clerk of courts, was delivered to the bank, which gave Nottke $825. AVilson Seels never had anything to do with the transaction nor did he know anything about it at the time.

On May 1, 1941, Nottke, who had not otherwise disposed of the legal title to the automobile which came to him by the valid certificate of the manufacturer, sold the automobile to defendant and in exchange took $40 and a proper title to a used Pontiac automobile, and defendant arranged for a loan from the bank for $448, the balance of the purchase price, to be secured by a mortgage on the Buick automobile. This transaction was never completed because of lack of title to the automobile.

Certainly the forged chattel mortgage was entirely void and could give the bank no interest in the automobile for any purpose. Section 8128, General Code. The application for the certificate of title and the certificate too, standing as they did upon the forged power of attorney, were likewise utterly void, and the fact that the lien of the forged and void chattel mortgage was endorsed thereon gave neither the title nor the lien any validity.

Although the bank had parted with its $825, the chain of false, forged and fictitious instruments could give it no interest in the title to the automobile against the defendant who had possession of it from its then lawful owner, and who had parted with $40 and the title to his used automobile. The judgment of the trial court on the issue in replevin was correct. As a result of that judgment defendant was entitled to damages for the loss sustained when the automobile was taken from him by this writ of replevin. The bank does not complain that the award of $500 was excessive.

Judgment affirmed.

Lloyd and Stuart, JJ., concur.


author: Jackson, J.

text:
    Shunk et al., d. b. a. Jay Que Co., Appellees, v. Shunk Mfg. Co., Appellant.
    (No. 1444
    Decided February 28, 1945.)

      Mr. Charles F. Bchaber, for appellees.

      Mr. C. Victor Vollrath, for appellant.
   Jackson, J.

This is an appeal on questions of law.' The defendant, appellant herein, assigns two grounds of error, the first being:

The Common Pleas Court erred to the prejudice of the rights of the defendant in hearing any evidence whatever controverting the allegations of defendant’s petition for removal and in determining the issues of fact thereon and denying to defendant the right of removal to the United States district court.

The removal of a suit of a civil nature, .either at law or in equity, from a state court to a federal court is governed by Sections 71, 72 and 80, Title 28, Ü. S. Code.

Those sections prescribe the manner in which a suit of a civil nature may be removed from the state courts to the federal courts, and Section 72 stipulates -that “it shall then be the duty of the state court to accept said petition and bond and proceed no further in such suit. ’ ’

In the instant case, the procedure was followed with exactness and at the time prescribed. The Common Pleas Court had before it the petition for removal and a good and sufficient bond, when the hearing was had upon the petition for removal.

The court permitted evidence to be submitted tending to disprove the facts alleged in the petition for removal, and in consideration of such evidence, the court, by journal entry, “ordered and adjudged said petition for removal be and hereby is refused.”

Those sections of Title 28, U. S. Code,' have been variously interpreted according to the exigencies of particular cases. However, a review of the decisions will exemplify the correct interpretation in the instant case.

As late as November 30, 1938, in the case of Kniess v. Armour & Co., 134 Ohio St., 432, 17 N. E. (2d), 734, 119 A. L. R., 1348, the Supreme Court of Ohio attempted, by reason of a misjoinder of parties defendant and diversity of citizenship, to remand a civil action to the Common Pleas Court of original jurisdiction, with instructions to grant the petition to remove the cause to the District Court of the United States. The District Court of the United States refused to permit the removal to it and remanded the suit to the state court. The question of removal or non-removal of this particular case finally was heard by the Supreme Court of the United States. It was suggested to the Supreme Court of the United States that the federal district court had no power to consider the entire record and pass upon the question of separability of the parties defendant because that issue had been adjudicated by the Supreme Court of Ohio.

The United States Supreme Court, in its opinion, said that the District Court of the United States is the only court entrusted with the determination as to removability and once it has acted, even a review thereof is not permissible. Kloeb, Judge, v. Armour & Co., 311 U. S., 199, 85 L. Ed., 124, 61 S. Ct., 213.

Upon a proper petition and bond for removal being filed, it is the usual practice for the state court to enter a formal order approving the bond and directing the transfer of the cause to the proper federal district court. However, the removal-of-causes statutes and the federal constitutional provision, Section 2, Article 3 of the U. S. Constitution, to which the authority to enact such statutes is traceable, are entirely effectual to permit a removal of jurisdiction of a cause upon the proper steps being taken — that is, serving-notice on adverse parties, filing petition and bond, and obtaining and filing a copy of the record — -without any state legislation touching the matter, and without any order of the state court. Such steps having been taken, it is the duty of the state court, under Section 72, Title 28, U. S. Code, to accept the petition and bond and proceed no further in the suit. 35 Ohio Jurisprudence, 403, Section 32.

The first assignment of error is sustained.

The second ground of error is:

The Common Pleas Court erred to the prejudice of the rights of defendant in hearing evidence to determine who were members of a partnership sued in its business or firm name only, and in determining issues of fact and questions of citizenship, upon a petition for removal sufficient upon its face to entitle the petitioners to the removal.

What we have said with reference to the first assignment of error is equally applicable to the second.

The Supreme Court of the United States lays down this rule of procedure:

t £ * * * the petitioning party has a right to enter the suit in the Circuit Court [federal] notwithstanding the state court declines to stop proceedings, it is easy to see that, if both courts can try the issues of fact which may be made on the petition for removal, the records from the two courts brought here for review will not necessarily always be the same. The testimony produced before one court may be entirely different from that in the other, and the decisions of both courts may be right upon the facts as presented to them respectively. Such a state of things should be avoided if possible, and this can only be done by making one court the exclusive judge of the facts. Upon that question there ought not to be a divided jurisdiction. It must rest with one court alone, and that, in our opinion, is more properly the Circuit Court [federal].” Burlington, Cedar Rapids & Northern Ry. Co. v. Dunn, 122 U. S., 513, at 517, 30 L. Ed., 1159, 7 S. Ct., 1262. Stone v. South Carolina, 117 U. S., 430, 29 L. Ed., 962, 6 S. Ct., 799; George Weston, Ltd., v. New York Central Rd. Co., 115 N. J. Law, 564, 181 A., 18; Farmers’ Bank & Trust Co. of Hardinsburg v. Atchison, T. & S. F. Ry. Co., 25 F. (2d), 23; B. & O. Rd. Co. v. Koontz, 104 U. S., 5, 26 L. Ed., 643; Probst v. Cowen, 91 F., 929; Clarkhuff v. Wisconsin, I. & N. Rd. Co., 26 F., 465.

Since the mere filing in a state court of a sufficient petition and bond divests the jurisdiction of the state court and vests jurisdiction in the federal court, no hearing is necessary in, or no order necessary by, the state court. Comity, however, dictates both a request for and a grant of the latter. Hansford v. Stone-Ordean-Wells Co., 201 F., 185; North American Loan & Trust Co. v. Colonial & United States Mortgage Co., 3 S. D., 590, 54 N. W., 659.

The second assignment of error is sustained.

On February 5, 1945, the United States district court for the Northern District of Ohio, Eastern Division, entered an order remanding the instant case to the Common Pleas Court of Crawford county, Ohio. This action on the part of the United States district court in no wise sustains, or is an affirmance of, the denial of the petition for removal to the defendant. It is a refusal to entertain jurisdiction of the cause.

The order of the United States district court refusing the removal of the cause and remanding to the Court of Common Pleas renders moot the issues before this court in the present appeal, except as to the question of costs.

Error having intervened, as above indicated, the judgment of the Common Pleas Court is reversed and the cause remanded for further proceedings according to law. The costs of the instant appeal are assessed against the plaintiffs. Exceptions are saved.

Judgment reversed.

Middleton, P. J., and Guernsey, J., concur.


text:
    The Cincinnati & Suburban Bell Telephone Co., Appellant, v. Eadler, Appellee.
    (No. 6450
    Decided December 11, 1944.)

      Messrs. Frost & Jacobs, for appellant.

      Messrs. Nichols, Wood, Marx & Ginter and Mr. Harry K as fir, for appellee.
   Matthews, J.

The plaintiff in this action seeks to recover for damages to equipment which the city of Cincinnati had authorized it to install in Queen City avenue, one of its public streets, beneath the sidewalk, and which the defendant disturbed while excavating preparatory, to erecting a building on an abutting lot. The jury returned a verdict for the defendant, upon which judgment was rendered. This appeal is from that judgment.

The equipment consisted of telephone and fire alarm cables, protected by tile conduits. The sections of the conduit weighed about ninety pounds each and were located about five feet below the sidewalk. There was a manhole constructed to furnish access to the conduit, and counsel disagreed as to its exact location. It was claimed that the manhole wall extended about three inches beyond the street line into private property. An examination of the record discloses that the defendant did testify that after the excavation had been made and the soil on the side and underneath had been disturbed it did encroach about three inches onto the private property, but he did not assume to testify as to its location prior to the commission of the acts complained of in this case, and the survey showed and the testimony of all the other witnesses — both those called by the defendant as well as those called by the plaintiff — was that the manhole was entirely within the street lines prior to the acts of the defendant in removing the support. We find that there was no evidence — certainly, no substantial evidence — to the contrary. We shall, therefore, consider the case as one relating to property placed beneath the street surface within the street lines under permission of the municipality. The equipment being for the purpose of telephone and fire alarm communication furnished by a public utility, there can be no doubt that the purpose was public.

There is no evidence as to the terms of the original dedication. Whether the municipality owned the absolute fee or a conditional fee for street purposes can-' not be determined. AVe must presume that conditions existed which authorized the granting of the permit to the plaintiff to place its equipment in the street. The weight of authority is that even though the title to the street is for street purposes, such a use would be justified. 39 Ohio Jurisprudence, 76, Section 64.

The conduits and the cables enclosed thereby were the plaintiff’s property rightfully located in the public street, serving a public purpose. While the defendant exercising the rights of an abutter had certain rights, beyond those of the general public, such rights were subordinate to all the uses for which the street could be used by the public.

It is not contended otherwise in this case.

The fact, therefore, that the defendant stood in the position of the abutting owner gave him no right to use the sub-surface of the street to the exclusion of the plaintiff, standing in the right of the municipality.* If otherwise unjustified, that fact did not authorize it.

Furthermore, in determining the rights of these parties — the plaintiff is in the position'of a possessor of the cables, conduits, and manhole, with all the rights incident thereto. 1 Restatement of Torts, 551, Section 216. The law protects that possession and any invasion of it without just cause or excuse to its damage would create a liability in its favor without regard to whether the invasion was the result of an intentional act. 2 Restatement of Torts, 734, Section 281.

In Philadelphia Fire & Marine Ins. Co. v. Hirschfield Printing Co., 73 Ohio App., 27, 53 N. E. (2d), 827, this court quoted at page 29 from 38 American Jurisprudence, 656, that: “The law does impose upon every member of society the duty to refrain from conduct of a character likely to injure a person with whom he comes in contact, and to use his own property in such a manner as not to injure that of another. ’ ’

That rule is of universal application. Whenever and wherever one person comes into proximity to the person or property of another, a duty arises to refrain from conduct likely to cause injury or damage.

In our view, it is not in law vital to the plaintiff’s action to prove that its equipment was rightfully in the street. If its right were challenged by the municipality, a different question would be presented.

The defendant made a contract with the abutter to construct a building on his lot including the necessary excavating. He sublet the excavating to an independent contractor who, in turn, sublet the work to another. This sub-subcontractor removed the earth on the lot up to the street line to a depth of more than ten feet. No shoring was done and evidently some of the earth from the street fell into the excavation. It is admitted that the manhole structure and the conduits were exposed to view from the excavation. It was then discovered that the soil would not furnish a secure footing unless the base was made larger than the width of the proposed wall. It was concluded to make a concrete footing five feet wide upon which to set the wall. To do so the earth was removed for a distance of twenty-five inches into the subsoil of the street under the conduits and manhole structure. While that condition existed, a rather heavy rain fell and, as a result, more soil was washed from under the manhole and conduits, the sidewalk cracked and moved, the manhole walls cracked, and the conduits were left suspended on the cables without supporting foundation, producing a condition that made it necessary for the municipal authorities to immediately exclude the public from the use of that portion of the street by barricading it. And all this excavating was done without notice to the municipality or the plaintiff and without giving either an opportunity to adopt protective measures. It was for the cost of restoring the status quo ante that this action was brought.

Certain municipal ordinances were pleaded and either admitted or proven. These required all excavations to be guarded and protected to prevent them from becoming dangerous, and to be sheet piled, braced or shored where necessary to prevent the adjoining earth from caving and, when the excavation extended within one foot of the angle of repose of the soil under any footing or foundation, protection by underpinning against settlement was required. Another ordinance required the replacement of any lateral support at the expense of the person who removed or disturbed the lateral support.

It is clear, we think, that the removal of the supporting soil was a violation of the right of the municipality to have the street supported by the adjoining soil, even though there had been no invasion of the subsoil. Such an unguarded excavation immediately adjoining a public street is a public nuisance both at common law and under the ordinances, and creates liability for injury and damage directly resulting therefrom. 25 American Jurisprudence, 573 et seq., Section 280; 2 Restatement of Torts, 987, Section 364. And entering the street and removing the subsoil resulting in the injury to the street so as to make it unfit and dangerous for use by the public constituted a more direct invasion of the public right. 28 Ohio Jurisprudence, 625, Section 396.

The person thus violating the public right and actively creating a dangerous condition in the street would clearly be liable to the municipality and the traveling public for all damage directly resulting from such condition. We are equally clear that liability is created in favor of a public utility company that has placed its equipment on or under the street by permission of the municipality.

It serves no purpose to debate whether the act of the defendant causing the damage should be considered intentional or negligent. • The removal of the lateral support and the subsoil was intentional and the recoverable damage is limited to such as directly resulted. A person is presumed to intend the natural consequences of his acts. Taking adequate measures to avoid the natural consequences would not have destroyed the intentional nature of the acts, but would have prevented the damage. Any less than adequate measures to prevent the damage would have been immaterial — or, if it is preferred, negligence.

In Taylor v. City of Cincinnati, 143 Ohio St., 426, at 432, 55 N. E. (2d), 724, the court said:

“To properly consider and determine tortious liability in accordance with legal principles, it is necessary to differentiate and classify the several types of tortious conduct. In general, they may be designated as follows: (1) Culpable and intentional acts resulting in harm; (2) acts involving culpable and unlawful eon-'duct causing unintentional harm; (3) nonculpable acts or conduct resulting in accidental harm for which, because of the hazards involved, the law imposes strict or absolute liability notwithstanding the absence of fault; and (4). culpable acts of inadvertence involving unreasonable risks of harm.
‘ ‘ Strict or absolute liability is always applied where one does anything, or permits anything under his control or direction, to be done, without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his legal rights. In such case the actor commits an intentional act involving a culpable wrong. Where the harm and resulting damage are the necessary consequences of just what the defendant is doing, or is incident to the activity itself or the manner in which it is conducted, the law of negligence has no application and the rule of absolute liability applies.”

And, at page 434:

“Furthermore, if harm is caused to another by reason of any unlawful act on the part of the defendant, the latter is liable without reference to the care exercised in the commission of such act. A person who does an act unlawful per se becomes, in respect to it, an insurer and is liable for loss resulting from harm which may happen in consequence of it to persons exercising ordinary care, irrespective of the degree of skill and diligence exercised by himself, his agents or servants to prevent such injury. Gas Fuel Co. v. Andrews, 50 Ohio St., 695, 35 N. E., 1059, 29 L. R. A., 337 (gas explosion, statute creating liability for failure to control gas); Higginbotham v. Kearse, 111 W. Va., 264, 161 S. E., 37, 77 A. L. R., 1110 (outward-swinging screen door opening over sidewalk, injuring pedestrian). The rule applies especially to the creation or maintenance of a public nuisance by a private person, which always involves an unlawful act.
“For instance, a private individual has no right to interfere with a highway or street without first obtaining permission from the proper authority, and to do so without such permission constitutes an absolute wrong and renders the wrongdoer liable as an insurer. It matters not whether he is prudent or careful, as he is bound to keep the highway safe at his peril.”

Many authorities are cited in support of the court’s statement of the law. Further citation here is unnecessary.

In addition to the claim that the manhole structure encroached upon the abutting land and was a circumstance tending to prove contributory negligence, it was also claimed that the manhole cover had become covered and concealed by dirt and other substances and that that furnished a basis for submitting to the jury the issue of contributory negligence. It should be mentioned here that it was the act of the property owner and not the plaintiff that caused the manhole to be concealed, but disregarding that, we fail to see how either or both of these facts could have any tendency to prove a defense to this action, whether such defense be given the name of contributory negligence or otherwise. The defendant became aware of the presence of the manhole and the conduits while excavating and had full opportunity to safeguard them from the natural consequences of his acts, and he chose to continue without taking any protective measures.

We hold that the evidence presented no defense based on the negligence or other fault of the plaintiff.

In the pleadings and the trial of this case, the parties and court employed the nomenclature strictly appropriate only to tort actions based on negligence. Perhaps most frequently this language is used in treating cases in this category, and the phrase “negligence per se” is employed to denote absolute liability. Ordinarily, no harm results, but in this case we think it misled the court, and, as a result, error resulted in the statement of the issues and the law.

As already stated there was no issue of contributory negligence. And inasmuch as the defendant admitted that he employed the person who removed the support, there could be no issue 'of fact as to that unless the evidence tended to show that the person employed was an independent contractor over whom he did not in fact exercise any control as to the mode and manner of doing the work, and unless the law would exculpate him if such were the fact. As to the evidence, we find that conflicting inferences can be drawn, but as to the law, it is our conclusion that the defendant could not avoid liability by employing an independent contractor to do this work.

The defendant had no right under any circumstances to disturb the surface of the street by removing the subsoil. • His right to remove the lateral support was conditioned upon being properly guarded and prevented from becoming dangerous by being sheet piled, braced or shored. In the absence of performance of the condition, the removal of the lateral support was unlawful. Whoever actively participates in such violation of public and private right, whether as owner, contractor, or subcontractor, becomes liable for the damage naturally resulting therefrom.

The law and ordinances on this subject were enacted for the protection of public and private rights because the danger from such work was necessarily present. There is. no conflict in the authorities. We refer only to a few to indicate what we have in mind. Richman Bros. v. Miller, 131 Ohio St., 424, 3 N. E. (2d), 360; Covington & Cincinnati Bridge Co. v. Steinbrock & Patrick, 61 Ohio St., 215, 55 N. E., 618; Scheller v. Silbermintz, 98 N. Y. Supp., 230, 50 Misc. Rep., 175; Weber v. Buffalo Ry. Co., 47 N. Y. Supp., 7, 20 App. Div., 292, and the very. instructive case of Reuben v. Swigart, 15 C. C., 565, 7 C. D., 638. .

The plaintiff requested the court to instruct the jury that:

“I charge you that the performance of the duty of using ordinary care to ascertain in advance whether or not there were telephone cables, conduits and a manhole located in Queen City avenue in such close proximity to the Longo property as probably to be affected by the proposed excavation and the duty of giving notice to the Cincinnati and Suburban Bell Telephone Company of his intention to excavate if he knew or had reasonable cause to know of the existence and approximate location of its cables, conduits and manhole, rested primarily upon defendant Eadler and were absolute and nondelegable duties from which he could not be relieved by any contract with a third party. ’ ’

While this charge does not state the rule of liability as strongly as the law justifies, that defect was not prejudicial to defendant, and it does state the correct rule as to nondelegable nature of defendant’s duty. This rule of law was not stated in any other special charge. It was error to refuse to give it.

As we view this record the evidence presented no issue of contributory fault on plaintiff’s part and none on defendant’s part. It showed fault as a matter of law by defendant and none by the plaintiff. The only issue of fact was the extent of the damage resulting from the tortious conduct of the defendant. Within the ambit of the issue of the measure of damage is the subordinate one of whether, or to what extent, the plaintiff’s damage resulted from an unprecedented rain.

We believe what we have said covers all the assignments of error. Specifically, the judgment is reversed for error in submitting the issues of contributory negligence and the defendant’s fault, and for refusal to give the special charge upon the subject of the effect of the employment of an independent contractor.

The cause is remanded for further proceedings according to law.

Judgment reversed.

Ross, P. J., Hildebrant and Mattheavs, JJ., concur in the syllabus and opinion.


author: Montgomery, J. Montgomery, J., Hornbeck, J.,

text:
    McAlpin, Exrx., Appellee, v. Obenour et al., Appellants.
    (No. 3747
    Decided October 16, 1944.)

      Mr. Joseph W. Horner, for appellee.

      Messrs. Price é Price, for appellants.
   Montgomery, J.

The appeal to this court is from a judgment of the Probate Court of Franklin county, Ohio, authorizing the sale of real estate of which the decedent died seized, to pay the debts of her estate and costs of administration. The record is clear and it is undisputed that if item-three of the will of the decedent is effective to transfer to Stella F. McAlpin all the personal property left by. the decedent, the real estate must be sold to pay debts. If, however, that item does not convey certain choses in action, and the same are part of the residuary estate, then it will not be necessary to sell the real estate.

Item three of the will of the decedent is in the following language:

“I also give to my daughter, Stella F. McAlpin, all my personal property located in the room now occupied by me.”

There is no question about the furniture, of course. The question is raised as to three items, to wit, a demand certificate of deposit in The First National Bank of Kenton for $335, a time certificate of deposit in The' First National Bank of Kenton for $701.75, and a check on The Home Savings & Loan Company of Kenton for $505, a total of $1,541.75. Such snm is approximately twice the amount of the debts of the estate.

The question is simply: Do those securities pass under the quoted item of the will to Stella F. McAlpin, or do they pass under the residuary clause of the will?

It is a fair inference that those evidences of indebtedness, or those securities, term them whatever we will, were in the room of the decedent at the time the will was made and at the time of her death, as well as at the time of the inventory, and this proposition causes us no trouble. The question is the interpretation of the language of item three, conceding that the securities were in the room.

"With reluctance we come to the conclusion that the judgment of the Probate Court must be reversed. It may well be that it was the intention of the testatrix to give the securities to her daughter, but there is no evidence to that effect. Counsel for the testatrix, who drew the will, attempted to testify as to what the testatrix said to him about those securities. That evidence was properly sricken from the record, and without it there is nothing to indicate any intention on the part of the testatrix. The judgment of the Probate Court is against the great weight of authority, although there is a divergence of views, and there are authorities which might seem to sustain the contention of the appellee in the instant case.

If it should seem that we are doing an injustice and going contrary to the intention of the testatrix, the answer is that such intention is not adequately expressed by words. On the face of things there would seem to be no injustice or inequity done by having the clioses in action applied to the payment of debts, rather than that the farm be sold, in view of the fact that under the residuary clause the daughter gets two-thirds and the son only one-third of all that remains after the payment of the debts, if the item claimed to bequeath the choses in action does not in fact do so.

There is a dearth of authority in Ohio of any aid in the determination of this case. The leading case, and it is not directly in point, is that of Creamer, Exr., v. Harris, 90 Ohio St., 160, 106 N. E., 967, L. R. A. 1915C, 653, Ann. Cas. 1916C, 1137, in the opinion of. which, Chief Justice Nichols referred to the fact that “no direct authority can be found in Ohio which will aid the court in its interpretation of the dispute * * *.” The general discussion in that case, however, is of value and reliance seems to have been placed upon the case of Webster et al., Exrs., v. Wiers, 51 Conn., 569, the syllabus of which is:

“A testatrix made the following bequest: I give to M all my household effects, books and papers of value, and everything the house contains; the same to be taken by him without inventory or appraisal. ’ Held not to include a promissory note of $100, and a savings bank book with deposits of $2,500 represented by it, which belonged to the testatrix and were found among her papers in her dwelling house immediately after her death. ’ ’

In the instant case we direct attention, as Judge Nichols did in the Creamer case, to page 576 of the opinion in the Webster case, where Park, C. J., referring to the items referred to in the above-quoted syllabus, said: “It is hardly credible that a particular allusion to them should not have been made if she had intended to embrace them in the bequest.”

We have devoted a great deal of time to an investigation of authorities outside of Ohio, and we call attention to 9 Words & Phrases (Perm. Ed.), 75; L. E. A.. 1915C, 653 et seq.; 120 A. L. E., 1210. Likewise we direct attention to 41 Ohio Jurisprudence, 659, Section 538.

The cases most directly in point which we have found, in addition to the Webster case, supra, are two New York cases, to which we direct attention.

The first is that of Ball v. Dickson, 31 N. Y. Supp., 990, the syllabus of which is as follows:

“Testator devised and bequeathed to W. his farm, ‘together with all personal property upon said farm, including all the personal property in the house and in the other buildings on said premises.’ Held, that the bequest of personalty did not include promissory notes, certificates of deposit, and bank pass books which were at the time of the execution of the will in a safe in the dwelling house on the farm, the value of which amounted to about one-third of testator’s estate, where no reason appeared for favoring W. to that extent, while allowing the notes, etc., to pass under the residuary clause of the will would effect an equal distribution among testator’s next of kin.”

The other is In re Delaney’s Will, 117 N. Y. Supp., 838, the syllabus of which is:

‘ ‘ Testatrix, when she executed her will, owned three houses and lots, certain personal property, and two saving deposits. She devised one of these houses to each of her three nieces, and by the second clause of her will bequeathed to her niece Q. all of her household furniture and ‘personal property of whatsoever kind’ in her W. street house. The will disposed of all testatrix’s property, and contained no residuary clause. Thereafter she sold one of the houses, and deposited the proceeds with other money to the credit of her savings bank deposits. The pass books for these deposits, together with certain other money and jewelry, were in testatrix’s possession at her W. street residence when she died. Held, that the proceeds of the property sold did not pass to the devisee of testatrix’s residence under the description ‘personal property of whatsoever kind, ’ but that as to this testatrix died intestate. ’ ’
In 120 A. L. R., 1215, appears a reference to an English case, In re Robson (1891), 2 Ch. (Eng.), 559, which case we have not seen. But the reference states that the court in that case makes a distinction between the rule as to choses in action as a part of the contents of a house and as part of the contents of a desk or receptacle, and it quotes Judge Chitty as saying: “There is a distinction between a gift of chattels in a house and a gift of the contents of a desk; a desk being the kind of thing in which men do usually keep valuable things. ’ ’

3 Page on Wills (Lifetime Ed.), 54, Section 970, says:

“Choses in action have no locality, although the ecclesiastical courts had held that their presence gave jurisdiction for administration. They are only evidences of obligations. For these reasons, it has been held that a gift which is, by its terms, broad enough to include choses in action, and which describe the property as located in a certain place, does not pass choses, although the written evidence thereof is situated in such place. A gift of ‘securities’ in a certain vault does not pass a bank account, although the bank book was kept in such vault.”

In Old Colony Trust Co. et al., Exrs., v. Hale, 302 Mass., 68, 18 N. E. (2d), 432, 120 A. L. R., 1207, the court stated, at page 70 of the opinion, that “choses in action will not pass under a bequest of the contents of a house,” and fortified the statement with reference to a number of decisions.

The judgment of the Probate Court is reversed.

Judgment reversed.

Geiger, J., concurs.

Montgomery, J.,

of the Fifth Appellate District, sitting by designation in the Second Appellate District.

Hornbeck, J.,

concurring. I concur in the judgment in this case and recognize that the majority has a strong opinion. To avoid any misapprehension, in the future, of the basis of my conclusion, I desire to briefly touch upon the principles involved in some of the cases cited in the majority opinion.

The item of the will under consideration does not in my judgment, in its construction, permit the application of the doctrine of ejusdem generis. There is no mention of any property other than that included by the term “all my personal property located in the room now occupied by me.” See Quick, Exr., v. Owens, Exr., 198 S. C., 29, 15 S. E. (2d), 837, 137 A. L. R., 201. The Ohio case cited, Creamer, Exr., v. Harris, 90 Ohio St., 160, 106 N. E., 967, L. R. A. 1915C, 653, Ann. Cas. 1916C, 1137, illustrates the principle. If the will were construed on the language of item three only, I would be inclined to hold that it transferred the certificates of deposit and the check to the daughter. If the securities had been mentioned by name, they would have included the money in the bank and the choses in possession, the title to which they evidenced.

Nor do I hold that the term “personal property” may not included choses in action such as are found in this case. 7 Words and Phrases (Perm. Ed.), 144 et seq. However, construing this will from its four corners and the item under consideration especially in connection with the residuary clause, it requires the construction adopted in the majority opinion. The residuary clause refers to property, real, personal and mixed, and if the securities passed by item three of the will, there would be no personal property upon which the residuary clause could operate.


author: Hildebrant, J.

text:
    Bayer, Appellee, v. Becker, d. b. a. Atlas Welding & Cutting Co., Appellant; Hunsicker, Clerk, Appellee.
    (No. 6438
    Decided January 8, 1945.)

      Messrs. Bates, Skirvin é Varnau, for appellee George W. Bayer.

      Mr. Fred L. Hoffman, Jr., for appellant.

      Mr. Nathan Bolinger, for appellee Elmer F. Hun-sicker.
   Hildebrant, J.

Twenty-one jurors, comprising the list for the term, appeared in the Municipal Court of Cincinnati on May 18, 1944, in response to an order to do so to serve in this specified case alone.

An entry of dismissal at defendant Becker’s costs was presented to the clerk on May 17, 1944, who informed defendant Becker’s attorney that the fees of six jurors would be included as costs. The entry of dismissal was signed by the judge on May 18,1944, and no jurors were impanelled or sworn, nor was there any way to determine the individuals whose jury fees were taxed as part of the costs. A motion to retax the costs was overruled, and an appeal from the order including the fees as costs is here on questions of law.

Decision of this case requires construction of Section 1558-16, General Code, which reads as follows: “In all criminal and civil actions and proceedings in the Municipal Court each juror shall receive a fee of three dollars for each day of actual service which fee shall be taxed as part of the costs. When a jury is demanded in a civil action or proceeding, the party making such demand must make an advance deposit of twelve dollars for a jury of six and twenty-four dollars for a jury of twelve.”

Specifically, the question here is: What do the words “actual service” include, import or mean?

Is it enough that a juror report for jury service at the specified time and place, without ever actually being pressed into service by being impanelled and sworn? This court thinks not.

Prior to August 20, 1943, the effective date of Section 1558-16, General Code, quoted above, the section read as follows:

“In all civil actions and proceedings in the Municipal Court the cost of summoning jurors and the fees of jurors shall be taxed as part of the costs, and such costs must be secured in advance by the party demanding the jury; and each juror shall receive two ($2) dollars for each day of actual service.”

The impression received from the change in language is that the Legislature intended to clarify the section so as to make it plain that jurors were to be paid only when they actually served in that capacity, in which event their fees were to be taxed as costs. A mere reporting for duty would not then seem to amount to actual service, for which the statute fixes a fee, but would seem to be a duty of citizenship owed by jurors to the public and to each other, correlative to the many benefits received by reason thereof.

Further strengthening this view by analogy, in criminal cases it is provided in Section 13451-18, General Code, as follows:

“In all sentences in criminal cases, including violations of ordinances, the judge or magistrate shall include therein, and render a judgment against the defendant for the costs of prosecution, and if a jury has been sworn at the trial of a case, the fees of the jurors shall be included in the costs, which when collected, shall be paid to the public treasury from which the jurors were paid.”

Only if the jury be sworn are the fees included in the costs.

The court, therefore, finds that, no jury having been impanelled and sworn and hence no jurors having been put to actual service, it was error to tax the fees of six jurors as part of the costs, and the judgment as to costs will be modified accordingly.

Judgment accordingly.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus and opinion.


author: Ross, P. J.

text:
    Long, Appellant, v. The Equitable Life Assurance Society of the United States, Appellee.
    (No. 891
    Decided January 12, 1945.)

      Mr. G. W. Elliott, for appellant.

      Messrs. Graydon, Head & Ritchey and Messrs. Millikw, Shotts S Reister, for appellee.
   Ross, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Butler county. That court overruled a demurrer to the third defense of the answer and the plaintiff not desiring to plead further, judgment was rendered for defendant.

The plaintiff is the widow of an employee who had been insured by virtue of a group policy issued to his employer. She is also the beneficiary named in the certificate of participation of such employee issued by the employer. The policy covered the life of the employee and provided for payment of insurance if such employee “became wholly and presumably permanently disabled.” The employee, according to the allegations of the petition, became so disabled on the 7th day of June 1924, and died on April 3, 1927. Proof of such disability is alleged to have been furnished the defendant insurer on the 26th of June 1938. The defendant filed an answer containing several defenses, the third defense containing the following language:

“If said James Long at any time became wholly and presumably permanently disabled within the provisions of the group policy then in effect, which defendant denies, the said James Long and Lennie Long, the plaintiff herein, failed and neglected to give defendant notice or submit proof thereof until June 26, 1938, a period of fourteen years and nineteen days after the alleged commencement of said alleged disability,- that said delay was unreasonable and that by reason thereof defendant has no liability under said master policy and certificate to the plaintiff herein.”

To this third defense the plaintiff filed a demurrer on the ground that it did not state facts sufficient to constitute a defense.

By stipulation, it was agreed that the demurrer was to be considered as applying only to the language quoted supra, and as though the other language contained in the third defense were not incorporated therein.

Snch demurrer, although a general demurrer to the third defense, is not a general demurrer to the entire answer.

The rule is that a general demurrer to the answer will search the record for the first defective pleading. 31 Ohio Jurisprudence, 670, Section 108. There appears no sound reason why a general demurrer to an affirmative defense should not also search the record and direct inquiry toward the petition. Especially is this true here, where the language of the defense taken alone would give little conception of the problem presented. It was the evident intention of the parties to present to the trial court two questions: (a) Where no specific time is mentioned in a policy within which proofs of loss must be filed, was it the intention of the parties to agree that such proofs of loss must be filed within a reasonable time? (b) May the court determine this question as a matter of law or is it always a question of fact, to be determined under all the circumstances of the case?

“If the contract of insurance does not specify the time within which notice or proofs of loss must be given or made, time is not of the essence of the contract, and a reasonable time is allowed * * *.” 22 Ohio Jurisprudence, 731, Section 631.
“In the absence of any provision in the policy relating to the time for presenting to the company the proofs of loss, the law requires that such proofs must be made within a reasonable time, and compliance within such time is sufficient.” 29 American Jurisprudence, 827, Section 1101.

What constitutes a reasonable time will depend upon all the circumstances of the case. 22 Ohio Jurisprudence, 731, Section 631.

Whether such facts show that proof has been made in a reasonable time is usually an issue of fact. 39 Ohio Jurisprudence, 766, Section 160; 76 A. L. R., 61.

Even, where the facts are undisputed, but reasonable minds may draw different inferences from such facts, the question still is one of fact to be submitted to the trier of the facts. Employers’ Liability Assurance Corp. v. Roehm, 99 Ohio St., 343, 124 N. E., 223, 7 A. L. R., 182 (disapproving the last clause in paragraph four of the syllabus in the case of Travelers’ Ins. Co. v. Myers & Co., 62 Ohio St., 529, 57 N. E., 458, 49 L. R. A., 760).

However, where the facts are not in dispute, and reasonable minds could not draw conflicting inferences, and where no suggestion is made excusing a long delay in presenting proofs of loss, the question becomes merely a question of law. Or, stating it another way, under such circumstances the fact of the lapse of an unreasonable time in presenting proof becomes indisputably and conclusively apparent. 76 A. L. R., 61, 63; 39 Ohio Jitrisprudence, 768, Section 160.

There are probably few cases in which such a situation would arise. In most cases, some factual issue would be presented, or divergent inferences appear. The instant case presents an exception to the usual situation. The time between the beginning of the disability and the proof of loss was more than fourteen years and within a few months of the statutory period for bringing this action. Not the slightest suggestion is made why this delay occurred. The plaintiff relies boldly upon the bare proposition that only the statutory limitation applies, and that she does not need to make a claim until she sees fit. This cannot be the law. The situation here is manifestly different from that appearing in the Boehm case, supra. What inference or even a suggestion could arise from the facts here presented, that the fourteen years delay was due to any cause which might be termed reasonable?

A reasonable time means a period which is created by some justifiable cause. No such reason is suggested in the petition which, because of the absence of the allegation of any such reason or excuse, was itself demurrable, it being therein alleged that “if proof be furnished the society that any employee insured under said policies and certificates and before having attained the age of sixty became wholly disabled by bodily injuries or disease and would be wholly and presumably permanently prevented thereby for life from pursuing any and all gainful occupation, the defendant would pay six months after the receipt of such proof-----the full amount of insurance ***.’’'

In the face of such allegation, the plaintiff alleged proof more than fourteen years after the disability and more than eleven years after the death of employee, without any allegation indicating the slightest reason for delay.

Since a demurrer to the petition could have been sustained, no error prejudicial to plaintiff occurred in the overruling of plaintiff’s demurrer to the third defense, and the judgment for the defendant will, therefore, be affirmed.

Judgment affirmed.

Ross, P. J., Hildebrant and Matthews, JJ., concur in the syllabus and the opinion.