text:
    SALES C. O. D. OF INTOXICATING LIQUORS IN DRY TERRITORY.
    Circuit Court of Harrison County.
    William Mullen v. The State of Ohio.
    Decided, December Term, 1907.

      Sales — Of Intoxicating Liquors O. 0. D. — -Sale Complete, When — Delivery to the Carrier Constitutes Actual Receipt Toy the Purchaser — • Agency of. the Carrier — Collection on Delivery Constitutes Retention only of Vendor’s Lien — Contracts, Complete and Executory —Criminal Law.

    When a purchaser living in a local option district orders, in writing by mail, from a person lawfully engaged in the liquor business outside of such district, a package of liquor to be sent to him for bis own use by express C. O. D. to a station within the prescribed district, and such purchaser received such package, pays the price for the.same and the charges for the return of the money to the express company for the seller, the sale is complete upon the delivery of the package to the express company by the seller and he does not violate the law in the prescribed district.
    Cook, J.; Burrows, J., and Laubie, J., concur.
   William Mullen was indicted, convicted and sentenced for selling intoxicating liquors in Green township, a local option township in this county, and error is prosecuted in this court. He was tried upon an agreed statement of facts which sets forth that he was lawfully engaged in the liquor business at Amsterdam in Jefferson county, this state. That a man by the name of Howard Dunn, residing in Green township, sent an order by mail to Mullen to send him a case of lager beer by express to Burton station, -which was in Green township, and on the line of the Cleveland & Alliance Railroad. The order set forth that when the beer arrived at Burton he would pay for it to the express company when delivered to him, and also pay the express-age on the beer and the charges- of the company for sending the money, the price of the beer, to Mullen. In a word, it was a clear C. O. D. order on the part of Dunn. The beer was shipped by Mullen in accordance with the order; Dunn received it, paying the express company the price of the beer and the charges for returning the money to Mullen, which was paid over to him by the express company. Mullen at the time of expressing the beer to Dunn knew that Green township was a local option township; but the beer was ordered by Dunn in good faith for his own private use; and there was no combination upon the part of Mullen and Dunn to violate the local option law of Green township, differing in that respect from the case of State v. O’Neil, 58 Vermont, 82 (56 American Reports, 557), reference to which is made in the case of O’Neil v. Vermont, 144 U. S., Reports, 323.

By the statement of facts the question is fairly and squarely made whether or not a person under such circumstances-, lawfully engaged in the liquor business, may send liquor upon an order received in writing at his place of business into a local option district by express G. O. D.

The answer necessarily turns upon the determination of the question as to where the sale was made. Was it at Amsterdam, Jefferson county, or in Green township, Harrison county ? Dunn having in his order designated the common carrier by which the beer was to be shipped, there could be no question but what-the liquor was his at the time of such delivery at Amsterdam, unless the fact that it was to be shipped C. 0. D. changes the rule.

Norris v. State, 25 O. S., 217. The third paragraph of the syllabus of that case is as follows:

“3. Where A, by false pretenses contained in a letter sent by mail, procures the owner of goods to deliver them to a designated common carrier in one county, consigned to the writer in another county, the offense of obtaining goods by false pretenses is complete in the former county, and the offense must be prose: euted therein. ’ ’

In Benjamin on Sales, Section 181, page 163, the author says:

“It is well settled that the delivery of goods to a common carrier, a fortiori to one specially designated by the purchaser, for conveyance to him or to a' place designated by him, cons-titutes an actual receipt by the purchaser.' In such cases the carrier is, in .contemplation of law, the bailee of the person to whom, not by whom, the goods are sent, the latter in employing the carrier being considered as an agent of the former for that purpose (a).”

It is difficult to see how the order of the purchaser that the goods should be sent C. O. D. would in any manner change the rule1. He had directed his agent to whom the goods should be delivered at the place of consignment and the mere fact that he had elected to send the purchase price back by that agent to the seller, when it had delivered the goods to him, would not seem to affect the general rule in any way.

It is said that the goods are not the goods of the purchaser until manually delivered to him. Not by any means. The goods are his upon delivery to the carrier. The seller simply has a technical claim upon the goods to insure the payment of the purchase price.

As held in Commonwealth v. Fleming, 130 Pennsylvania State, 139:

“4. An order from a seller to a carrier to collect on delivery is a mere provision for retention of the seller’s lien; if accepted it creates a contract between the seller and the carrier, on breach of which by the latter, the seller may recover the price from him; but it does not make'payment by the vendee a condition precedent to delivery, so that the seller may reclaim goods delivered by the carrier without payment.”

The carrier is the agent of the purchaser throughout. He had designated it as such; it was to receive the goods and deliver them to him; it was to receive the purchase price and carry the same back to the seller, for all of which services the purchaser was to pay the charges. There is nothing unlawful in this service, even if it should be held the carrier was the agent of both parties. It would in no sense be such a double agency as to make it improper. No such'diversity of interest whatever as to make it antagonistic.

That in such cases the sale is fully completed when the liquor is delivered to the common carrier, subject only to the .technical lien o£ the seller that it must not be delivered by the carrier to the purchaser until the purchase price is paid, is in accordance with the general tenor of the decisions in the different states.

In the I7th Volume of the American & English Encyclopedia of Law (2d Edition), page 300, it is said:

“3. [Where Goods Are Shipped G. O. Z>.] A somewhat different question is presented when the sales are made C. O. D. There is much diversity of opinion as to whether sales of this character are to be deemed absolute sales on the part of the vendor with a provision for withholding delivery until actual payment, so as to preserve the lien for the price, or only as ex-ecutory contracts of sale not completed until actual delivery into the hands of the buyer. In a number of decisions it has been held that for the purpose of determining whether the seller has violated the liquor laws in force where the buyer lives, a sale C. O. D. is not complete until delivery, acceptance, and payment of the price by the person ordering the liquors. At least so far as cases dealing with intoxicating liquors are concerned. However, the weight of authority is against the foregoing view, and it is generally held that where intoxicating liquors are ordered to be shipped C. O. D. the sale is completed when the liquor is delivered to the carrier.”

The text is fortified by decisions from a large number of states. See also Vol. 3 of Supplement, 762, where a large number of other authorities are referred to.

In Black on Intoxicating Liquors, 434, it is said:

“2. A licensed dealer who receives, at his place of business, an order for liquor from a place in which he has no license, and fills it by selecting the liquor from his stock and delivering it to an express company or other carrier to be carried to the purchaser, does not violate the license law, • although the carrier agrees to collect and return the price; for the sale is made at the place where the goods are separated from the general stock and delivered to the carrier, such delivery being delivery to- consignee. ’ ’

This author also refers to a large number of authorities in support of the text.

But is the question an open one in this state? The case of The Treasurer of Athens County v. Luchs, which went to the Supreme Court and which was decided without report, seems to be decisive of this ease.

B. E. Minteer, for plaintiff in error.

E. S. McNamee, for defendant in error.

In that case Luehs was engaged in the sale of intoxicating liquors at Marietta and shipped all kinds of liquors upon express orders C. 0. D. almost weekly, sometimes twice a week, to Broad-well, Lathrop and Amesville in Athens county. To such an extent were these shipments, that there could be no question, -from the record which we have examined, that he was keeping places for the sale of intoxicating liquors at these various express offices, if the sales were made in Athens county. The auditor of Athens county put Luehs upon the tax duplicate for the payment of the Dow tax; suit was instituted in the common pleas court by the treasurer of Athens county to recover the amount so placed on the tax duplicate. Luehs defended solely upon the ground that the sales were made at his place of business in Marietta, Washington county. The court of common pleas decided in favor of Luehs, and the ease was taken to the circuit court upon error, where the common pleas court was affirmed, and error was thereupon prosecuted in'the Supreme Court, where the circuit court was affirmed. Tie have examined the briefs in circuit and supreme courts and no other question was made but one; that although the orders were to send the liquor C. 0. D. yet the sales were made in Washington county. We do not see that any other defense could have been made, for if Luehs was engaged in the sale of intoxicating liquors in Athens county as we have said he was, if the liquors were sold in that county, then under Section 4369-9 he would be required to pay the tax in Athens county.

Judgment of common pleas court is reversed and the accused is discharged.


source: Caselaw Access Project

license: Public Domain

text:
    DECEPTION AS TO THE CHARACTER. OF A FIRE INSURANCE POLICY.
    Circuit Court of Stark County.
    Thomas F. Williams v. Receiver of Aetna Fire Association.
    Decided, 1907.

      Fire Insurance — Giving of a Mutual Policy the Appearance of a Standard Gash Policy — Fraudulently Inducing the Acceptance of a Mutual Policy — Insured not Estopped from Denying Liability for Assessments by Accepting Policy, When — Concealed. Contracts of Contingent Liability — Section 3653.

      A mutual fire insurance company issuing a policy without the word “mutd'al” conspicuously printed therein, as provided by Section 3653, Revised Statutes, and inducing its acceptance by falsely and fraudulently representing that there would be no contingent liability thereon, acts unlawfully and commits a fraud upon persons induced thereby to enter into an agreement with the company. Hence when thé insured informed the agent that he would not accept a policy in a mutual company, or in a company where there was such contingent liability for future assessments, and there was sent him through said agent a paper writing, in form and appearance like unto a standard cash policy of insurance, which was received by him after paying the sum specified therein as the cash premium, and placed with other like papers without critical inspection, where it remained until he received notice to pay an assessment thereunder, several months later, lie did not enter into an undertaking to accept such policy, nor is he estopped from denying liability thereunder.
    Donai-iue, J.; McCarty, J., and Taggart, J., concur.
    Error to Stark County Common Pleas Court.
   This proceeding in error is prosecuted to reverse a judgment rendered against the plaintiff in error in the court of common pleas of this county. The case was submitted to the court, without the intervention of a jury, and after hearing the testimony, a judgment was rendered against plaintiff in error, which is now sought to be reversed .

The record discloses that the plaintiff in error was solicited by the agent of the defendant in error to take insurance in the defendant company. It is claimed on his behalf that he distinctly refused to take any insurance in any mutual association, or any company in which there was a contingent liability for future assessments. This agent then represented that the Aetna Fire Association Was a strictly cash company; that it issued a policy for a sum named therein as premium,, and that there was no contingent liability for future assessments.

The record further shows that the plaintiff in error informed the agent of the company that he would not accept a policy in a mutual company, or a company Avherein there was such contingent liability for future assessment. This, in substance, is the record of what transpired between the agent of the company and the plaintiff in error at the time he agreed that a policy of the kind that was represented to him might be issued, and that he would accept and pay for the same.

The record further shows that some time thereafter there was sent to him through said agent, a paper writing in form and appearance like unto a standard cash policy of ihs.urance, which was received by him, the sum specified therein as the cash premium was thereupon paid by him, and he placed the same with his other papers in the desk, without giving it a critical and minute examination.

The record further shows that within a year, upon a notice of assessment being sent to him, he appealed to the agent soliciting the insurance, and was informed that he, the agent, as well as the plaintiff in error, had been deceived in respect to. the character of the instrument or policy so delivered to him, and that he, the agent, had canceled said policy, and thereupon the plaintiff in error substituted other insurance for the insurance that was supposed to be covered by the policy in question.

It is now claimed by the plaintiff in error that the inducements, representations and statements of the agent of the company were false and fraudulent in respect to the kind and character of policy which the company issued.

It is further claimed that the company was not authorized, under its charter, to issue a policy such as was issued to the plaintiff in error herein; that by failing to comply with the statute, Revised Statute 3653, in having printed conspicuously upon the policy the word “mutual,” or'having the word “mutual” printed in the policy, the act of issuing such contracts of insurance and inducing their acceptance, was unlawful, and a fraud upon persons induced thereby to enter into an engagment with this company; that by omitting the word “mutual,” and by permitting these representations to be held out, persons were induced to accept contracts of insurance that they otherwise would not have accepted.

On the other hand, it is contended that the plaintiff in error accepted this instrument with an opportunity to investigate; retained the same for so long a time that he is now estopped from denying liability thereunder; and that is concluded by the recitals contained in the same.

With the conclusions of the trial court in this case we are not in accord. We think, first, that the plaintiff in error negotiated with the agent for a cash policy, and the record distinctly shows that he engaged to enter into a contract wherein he would become insured in a company issuing a policy, the premium on which was for a fixed sum, and under which there would be no contingent liability. So that he never entered into any engagement or undertaking to receive and accept a policy of the kind or character that was thereafter delivered to him.

. This brings us to the second consideration: Does the mere fact of accepting a policy or, instrument of this kind, and retaining it for the time indicated in this record, estop him now from denying that he was a member of said company, or that he had accepted and thereby impliedly was bound to pay such sums as might be assessed thereafter under and by virtue of its provisions ?

We think there is enough shown in this record, calculated and intended to mislead, that this company can not now say that the plaintiff in error was estopped.

It is conceded that the defendant here did not sign the constitution and by-laws of this company, but it is claimed, under authority of Richards v. Lipp Co., 69 Ohio St., 359, that having accepted the policy and held the same for a considerable length of time he can not avail himself of this defense, and that would be true if he accepted the policy with knowledge of its true character and the provisions contained therein, or accepted it-under such conditions that he would be required as a matter of law to know its contents; but if he was deceived by the representations of the agent as to the kind and character of the policy that was to be issued to him, and these false representations were followed by the delivery of the policy, which upon its .face is calculated to deceive and defraud the purchaser of insurance and induce bim to believe that it is to all intents and purposes the contract of insurance that he has agreed to purchase, then a very different question arises. Must he be required under any and all circumstances fully to advise himself of each and every covenant in the written contract presented to him, or may he be permitted to rely upon the representations of the agent of the company and those portions of the written policy made prominent and conspicuous therein in such a form as would be, and as we believe were in fact made, for the purpose of deceiving.

This policy purports on its face to insure the defendant’s property for one year from its date for a sum fixed and certain. True, it is recited, also, that the other conditions and covenants written therein shall obtain, but that is true of every standard policy written for cash premiums and without any contingent liability for further assessments, so that there was nothing extraordinary to call his attention to the fact that the policy was not the character of contract he had made with the agent. In fact, no more clever method could have been devised for misleading the average business man and preventing him from reading the entire policy than by the adoption of what is known as the standard policy, -with the sole exception of writing into it a contract of contingent liability, and to our minds it sufficiently excuses the defendant from searching through all the labyrinth of covenants to discover the contingent obligation hidden therein, and this ease, by no means, measures up with the doctrine of estoppel in Ohio, for the very first requisite of such estoppel is either actual knowledge on the part of the individual sought to be estopped, or such conduct and negligence on his part as would preclude him from claiming that he had nonsuch knowledge; and again it is true that such negligence must not be induced by the fraud or representations of the other contracting party, and if so, it will be of no avail.

True, it is contended that the rights of third persons have intervened. This record fails to disclose, as we take it, that there was anyone who became a member of this association, who incurred any rights, or who are entitled to recover in consequence of their reliance upon this plaintiff in error’s being a member of said association, or of holding this policy the length of time which he did hold it, and in consequence thereof became a creditor or obtained any rights against this company.

Neither does the record show, as we have examined it, that-anyr one became a member of this association after the date of the delivery of this policy to the plaintiff in error. If they became members of this association before, then they could not rely upon the plaintiff in error, nor could the rights of any third persons have intervened.

A¥e think that to hold the plaintiff in error herein,- must be upon the ground of estoppel — and the petition is based upon that ground — that the plaintiff in error received and accepted this policy of insurance and became bound by its terms; that there must have been rights which accrued in favor of persons in consequence of the conduct of the plaintiff in error, which we think this record does not show; that the plaintiff in error must', with knowledge, or with such facts as now in good faith preclude him from denying that he had knowledge of the contents of said instrument, have accepted the same, and thereafter retained the same for so long a time that he can not now be heard to say that he was deceived thereby. We do not think that the evidence in this case contains or has probative force enough to meet these conditions; and, as it appeals to us, we think the judgment of the court of common pleas was manifestly against the weight of the evidence, and was contrary to the evidence and to the law of the case.

Upon this ground it is the judgment of this court that a new trial should have been granted, and that there was error in the court in overruling the same. The judgment of the court of common pleas will be reversed on the ground indicated, and the cause remanded for further proceedings according to law. Exceptions will be noted on behalf of the defendant in error.

Webber & Turner, for plaintiff in error.

Shields Pomerene, contra.


author: By The Court.

text:
    APPEAL FROM APPOINTMENT OF A RECEIVER.
    [Circuit Court of Knox County.]
    Herbert F. Williams v. C. N. Wyant.
    Decided, October 12, 1906.

      Final Order — Appointment of a Receiver Does not Determine Ultimate Rights, When — Error May Lie when Appeal will not — Statutes Governing Appeals and Proceedings in Error — Sections 5226, 6707, 6709 and 572 — Jurisdiction—Costs.
    An order appointing a receiver, but going no further in the way of determining ultimate rights, is not such a final order as will give a court jurisdiction on appeal, even though regularly made and all the forms of law observed in perfecting the appeal.
   By The Court.

This case was submitted to us on a motion to dismiss the appeal herein. The ground of the motion is that the order of the court of common please appointing the receiver, and the order appealed from herein is not such an order as can be reviewed by appeal in the circuit court, and because this court has no jurisdiction of such proceedings on appeal. It is contended on behalf of the plaintiff that an appeal will not lie from an order appointing a receiver in an action pending in the court of common pleas, where no other or different order is made in the case; that an order appointing a receiver alone is not such a final order as will give the court jurisdiction by appeal even though regularly made, and all the forms of law are observed in perfecting that appeal. An examination of the statutes governing appeals and proceedings in error is therefore necessary, for while a party may be entitled to prosecute error from a final order affecting a substantial right of a party made in the case, yet an appeal may not be sustained even though error would lie. Section 5226, or so much thereof as is necessary for an understanding of this matter, is as follows:

“In addition to the cases and matters specifically provided for, an appeal may be taken to the circuit court by a party or other person directly affected from a judgment or final order in a civil action, rendered by the common’ pleas court. ” * * * Section 6709:
“A judgment rendered, or final order made by any court of common pleas or a judge thereof, may be reversed, vacated or modified by the circuit court. ” * * *

Section 6707:

“An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding ® * * is a final order which may be vacated, modified or reversed as provided in this title.”

It will be observed that the definition of a final order under Section 5226 is different from a final order as defined by Sections 6707 and 6709. The latter by express provision of the statute being enlarged over the provisions of Section 5226. That this is the case, we beg to call attention to the case of Railroad Co. v. Varnum, 10 O. S., 622, the syllabus of which is as follows:

“An order appointing a receiver to receive the revenues, etc., of a railroad and bring the same into court, subject to its order, etc., and without any application of the funds except to certain costs accruing, is not a final order from which an appeal can be taken to the district court.”

We now call attention to the case of Railroad Company v. Sloane, 31 O. S., page 1:

“Proceedings in relation to the appointment and removal of receivers are special proceedings under Section 512 of the code, and an order affecting a substantial right made in such proceeding is a final order within the meaning of said section.”

And the court, on page 9, says:

“The claim of counsel for defendant in error that no order is final within the meaning of Section 572 of the code, and reviewable on error that is not appealable from the court of common pleas to the district court is without foundation. Hence the case cited of Railroad Company v. Varnum, 10 O. S., 622, is not relevant to the question under consideration. That case merely decides that an order appointing a receiver is not a final order from which an appeah can be taken to the district court.”

And on page 10:

“If the order,” in speaking about a final order which may be vacated, modified or reversed, “affects a substantial right and is made in a special proceeding, it is final within the meaning of the section and may be reviewed for errors of law appearing on the record. ’ ’

But this, as we take it, is to review by a proceeding in error, and this is the question the court was discussing as is seen by page 8, where they proceed to say that the question before the court is whether the order so made is reviewable or not on error.

Again, the right to appeal is governed by express statute, and unless the statute expressly authorizes the -appeal it will not lie. See 48 O. S., 38; 66 O. S., 57.

Our courts in defining a final order have used this language:

“It is said that if it be admitted that an order is not appeal-able unless it is in its nature final, still the decision in question is such a final order, as it determines and disposes of the whole merits of a branch of the case which is separate and distinct from me other parts of the case.”

And that is the definition given of a final order in Teaff v. Hewitt, 1 O. S., 511, at 520. In the case of Jay v. Squire, 7 N. P., 345, it is decided:

‘ ‘ The action of the court or judge in granting a receivership, does not determine the ultimate rights of the parties, or even affect them, except so far as it preserves and retains control of the property to answer to the rights of the parties as they may be finally determined.

Eerrlinger & Southworih and Frank V. Owen, for plaintiff in error. , . 1 i, •

Waiglvt & Moore, for defendant in error.

Our attention is called to the authority of Alderson on Receivers, at Section 90, but we think that this authority does not change the principle that underlies this matter, or is decisive of this motion.

Holding to these views, it is the judgment of this court that the motion of the plaintiff to dismiss this appeal should be granted. The motion is sustained and the appeal is dismissed, but as this holding of the court is to the effect that this court did not obtain jurisdiction in this matter by this appeal, no judgment for costs is rendered. Exceptions noted.


text:
    COVENANT TO RELEASE PART OF PROPERTY FROM MORTGAGE.
    Circuit Court of Cuyahoga County.
    M. M. Brown v. The Cleveland Trust Company.
    Decided, January, 1908.

      Mortgage — Covenant for Release of Part of Property — Not Available after Default — Limitations on Right to Release.

    A stipulation in a mortgage that the mortgagee will release part of the mortgaged premises from the lien of the mortgage, upon payment of an agreed sum, is not available to the mortgagor after proceedings have been begun to foreclose the mortgage.
    Winch, J.; Henry, J., and Marvin, J., concur.
    Error to the court of common pleas.
   The sole question presented by the agreed statement of facts in this ease, is whether a covenant in a mortgage that the mortgagee shall release a portion of the mortgaged premises from the lien of the mortgage at the request of the mortgagor, upon payment of a stipulated amount, is available to the mortgagor after his default and after foreclosure of the mortgage has been begun.

The adjudicated cases upon this subject seem to agree that such stipulations are inserted 'in mortgages for the purpose of facilitating the sale of the mortgaged premises in parcels, and that it would be inequitable to refuse the benefit of the provision to one who, relying thereon, had purchased before foreclosure was begun. But as to the mortgagor, it has been held that the covenants of the mortgage are mutual and that it would be inequitable to permit the mortgagor to redeem part of the mortgaged premises under the release agreement, while he was in default and unwilling or unable to keep his agreement as to the payment of the balance due on the mortgage and had compelled the mortgagee to institute foreclosure proceedings. Some of the eases emphazise this conclusion by showing that it would be a fraud upon the mortgagee to put the mortgagor in position to select the most valuable lots for release, while in default, thus reducing the mortgage security.

A majority of the court is of this opinion.

Attention is called to the following cases supporting these conclusions: Chrisman v. Hay, 43 Fed. Rep., 552 (Iowa); Reed v. Jones, 133 Mass., 116; Commercial Bank v. Hiller, 106 Mich., 118.

On the other hand, it is claimed that if the right to á release is to be denied after foreclosure, the mortgage should so state.

The contrary is held in the case of Vary v. Chalterton, 50 Mich., 541, and the cases cited in support of this contention are all distinguishable.

The case of Vawter v. Crafts, 41 Minn., 14, involved the rights of a purchaser before foreclosure.

The same is true of Clark v. Fontain, 135 Mass., 464, and 144 Mass., 287; these cases do not overrule the previous case of Reed v. Jones, 133 Mass., 116.

The same may be inferred as the fact in the case of Gammel v. Goode, 103 Iowa, 301, though the statement of the case does not make this point plain. However that may be, the Supreme Court of Iowa later made its views clear in the case of Baldwin v. Benedict, 111 Iowa, 741, where it held:

Carr, Stearns <& Chaniberlain, for plaintiff in error.

Henderson, Quad & Siddall, for defendant in error.

“A mortgagor, entitled to pay part of the mortgage debt and to demand a release of a proportionate amount of the land during the pendency of the mortgage, can not avail himself of such right after default and after action has been commenced.”

The case of Amercian Net & Twine Co. v. Githens, 57 N. J., Eq., 539, involved four independent owners who jointly mortgaged their lands. The facts are peculiar and are sufficiently distinguished in the opinion from the facts in the case of Reed v. Jones, supra.

However the law may be upon the general proposition discussed, we are all agreed that the provision in question in the mortgage now under consideration is so phrased as inferentially to limit the right of exercising the privilege thereby conferred “until the maturity of the bonds.”

We hold that the equities of the matter are with the trust company and the judgment is affirmed.


text:
    DISCREDITING A WITNESS ONCE CONVICTED OF CRIME.
    Circuit Court of Cuyahoga County.
    Lee August v. Catherine Finnerty, by Her Next Friend, etc.
    Decided, February 3, 1908.

      Damages — For Assault and Battery — Not Excessive, When — Contradic- ' tory Evidence — Effort to Discredit a Witness by Producing Record of Conviction — Objection to the Record Properly Sustainedr— Credibility not Affected by Offenses against City Ordinances.

    1. In an action for damages for assault and battery in throwing the plaintiff down a flight of stairs, the jury are warranted in assessing punitive as well as compensatory damages and in also including a reasonable attorney’s fee; and where the verdict was for $450, it will not be.set aside as excessive.
    2. It is only such a conviction as under the old law would have rendered a witness incompetent that can be introduced under the law as it is today to discredit him; and where for the purpose of discrediting a witness a record is offered of conviction of an offense which is not made a" crime or misdemeanor under any statute of the state, and was in violation of a city ordinance only, it is not error to sustain an objection to its admission in evidence.
    Marvin, J.; Winci-i, J., and Henry, J., concur.
    Error to the court of common pleas.
   The plaintiff in error was defendant below and the defendant in error plaintiff below; the terms plaintiff and defendant, as-used in this opinion, will refer to the parties as they were in the court below. The plaintiff, who was a minor, brought suit by her next friend, to recover damages from the defendant on account of an alleged assault and battery committed upon her, as the-petition avers, on the 22d day of January, 1906; the answer was a general denial. In this state of the pleadings the case went to trial and the plaintiff recovered a judgment for $450. The defendant moved for- a new trial, which -motion was overruled and the present proceeding is brought to reverse such judgment; a bill of execptions is filed here containing all of the proceedings in the trial court.

The defendant claims that there was error in the proceedings, because the verdict upon which the judgment was entered was not supported by sufficient evidence. The record shows that the plaintiff and two other witnesses testified to an assault and battery committed upon her by which she was thrown down a pair of stairs and severly injured. If their testimony is to be believed the assault was committed, and was an outrageous one for which there could be no justification or reasonable excuse. The defendant and two other witnesses testified to the transaction and say that no assault whatever was made upon the plaintiff. In this state of the evidence, it was properly a question for the jury to determine what witnesses were to be believed and how far each witness was to be believed. From their verdict it appears that they believed the testimony of the plaintiff and the witnesses produced by her. We can not say that they were not justified in so believing; hence, the case can not be reversed upon the weight of the evidence.

It is further urged that the damages awarded are excessive. We do not feel that we should be justified in reversing the case upon this ground. Believing the testimony of the plaintiff and her witnesses, as the jury did, it was a proper case for the recovery of damages; not only compensatory, but punitive as well; and it being a proper case for the recovery of punitive damages, the jury had a right to include in its verdict reasonable attorney’s fees. If the defendant committed the assault upon this plaintiff, who was a girl but sixteen years old at the time, he deserved punishment, and if the compensation should have been less than $450, certainly it should not have been so much less than that as to show that the jury gave too much for punitive damages.

There is, however, another question urged on the part of'the defendant which has received a large amount of attention by the court. The question arose in this way: When the plaintiff was upon the stand, she was asked if she had ever been arrested, and she answered, yes. She was then asked if she had ever been convicted in the police court of this city, to which she answered, no. She was then asked this question: Isn’t it a fact Katie, that you were charged with being a common prostitute? To which she answered: No, sir. Later she was again asked: Weren’t you convicted of the charge of being a common prostitute1? To which she answered, No, sir. The defendant, when he came to offer evidence in his own behalf, offered a record of the police court of this city. That record reads as follows:

“City Cases of the City of Cleveland.
“Thursday, July 18, 1907.
“City of Cleveland v. Kittie Finnerty. Common Prostitute.
“Affidavit filed. Warrant issued. Defendant in court and pleads not guilty. Hearing had. Found guilty, and she is sentenced to thirty days workhouse imprisonment and fine of $25 and costs. On further consideration sentence is suspended six months.” (Defendant’s Exhibit B.)

And the defendant offered to show that the Kittie Finnerty named in this record was the plaintiff in the action. To the admission of this evidence objection was made by the plaintiff, and that objection was sustained. It is urged that this was error, the argument being: First, that the plaintiff having testified that she never was thus convicted would be discredited by showing this record. That this question had no bearing upon the case on trial is conceded. It was purely a collateral matter. It being a collateral matter the party asking the question was bound by the answer, unless the case comes within some exception to .the general rule.

The fact that the witness sought to be discredited was a party to the suit in nowise affects the question of whether this record should have been admitted. If it was admissible at all, it was admissible without any question having been asked of the witness in cross-examination on this subject. Under the lav/ as it formerly was in England and America, one who had been convicted of any infamous crime was incompetent to be a witness. Under the law as it now is in Ohio, he who would have been incompetent under the law as it formerly was, is liable to be discredited by evidence showing conviction of such a crime as would have rendered him incompetent under the law as it was. It is only the conviction of such crimes as would formerly have rendered the witness incompetent which can now be used to discredit the witness. As already said, that crime, the eonvietion for which rendered the witness incompetent, must have been an infamous crime. The conviction here sought to be shown was for an offense made neither a crime nor a misdemeanor by any statute of the state of Ohio. The conviction must have been for the violation of some ordinance of the city of Cleveland, of which the court can not take judicial notice, and which in no event could be made what is denominated in law an infamous crime.

The fifth amendment to the Constitution of the United States provides:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.”

The 10th Section of Article I of the Constitution of the state of Ohio provides that:

“Except in cases of impeachment, and cases arising in the army and navy, or in the militia when in actual service in time of war or public danger, and in cases of petit larceny and other inferior offenses, no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury.”

The conviction here sought to be shown was a conviction in the police court of the city of Cleveland. It was then a conviction ■upon which there had been no presentment by a grand jury. The crime then was clearly not an infamous crime, if it was a crime which could be tried without presentment by grand jury. This view is sustained by Coble v. State, 31 Ohio St., 100, the language of the second clause of the syllabus reading:

“The credibility of a witness can not be affected by showing his former conviction of an offense under a city ordinance against ■ disorderly conduct. A conviction which may be shown to affect the credibility of a witness, under Section .139 of the criminal code (66 O. L., 308) is such only, as, independent of the section, would have rendered -the convict incompetent to testify.”

■ It is true that the case being considered was a criminal case, which this case is not, and that the section of the statute being considered was a section which provides for evidence in criminal cases, but the reasoning upon which the court reaches the conclusion which is reached, applies as well to civil as to criminal cases.

In Section 201 of Rapalje on the Law of Witnesses, this language is used:

“Formerly, when convicts were not admitted as witnesses, proof of conviction of crime was altogether fatal, not only to the credibility, but also to the giving of any testimony whatever by the witnesses. Since the almost universal abolition of incompetency by reason of infamy, however, the fact that a witness has been convicted of a crime which would have - excluded him at common law is allowed to be shown for the purpose of affecting his credit with the jury. ’ ’

In the case of Bakeman v. Rose, 18 Wend., 146, it is said in the dissenting opinion of Senator Tracy:

“It has been pressed upon us with earnestness and eloquence, that the condition of a public prostitute, being the most debased and demoralized state of human being that can be imagined, necessarily presupposes the absence of all moral principle, and especially that of regard for truth; and it is therefore contended that a common reputation of public prostitution, necessarily includes a common reputation for falsehood. In addition it is urged, that the laws of many countries exclude the testimony of females in some cases entirely, and in all cases where any stain is attached to their character; * * *. In respect to these suggestions it is sufficient to say, that it is not within the power of this court to subvert the established rules of evidence, and substitute new rules in their place, even were they persuaded, which I am not, that they would be preferable; and if they had this power, it might not be a very discreet exertion of it to attempt to -gauge crimes and gradúate a standard of vice and immoralities. Loathsome, deplorable, and even detestable as is a condition of public prostitution, it is not the only vice ‘of a great kindred’; theft, forgery, swindling, drunkenness, gambling, adultery, are also well allied; and if we undertake to determine that the reputation of one vice necessarily includes the reputation of another, it would be difficult to say when or where we covdd stop.”

J. H. Sampliner, for plaintiff in error.

Hart, Canfield <& Croke, for defendant in error.

This reasoning seems to us to be sound and to apply as' well to eases of conviction for prostitution as to cases where it is sought to impeach a witness by showing that she has the general reputation of being a prostitute.

We hold, therefore, that there was no error in the exclusion of this record, first, because it showed no conviction of any offense punishable by the laws of the state of Ohio; and, secondly, because it showed no conviction of an infamous crime, as that word is used in law; this, because there could be no prosecution under the Constitution of the United States or the state of Ohio for an infamous crime, except upon presentment of a grand jury.

Thirdly, only such conviction as could be shown under the old law as to render a witness incompetent can be shown under the law as it is now to discredit the witness.

The result is that we find no error in the record and the judgment of the court of common pleas is affirmed.


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    IRREGULARITIES IN STREET IMPROVEMENT ASSESSMENTS.
    Circuit Court of Lucas County.
    Fred W. Ridenour v. Thomas Biddle, Treasurer, et al.
    Decided, June 8, 1907.

      Streets — Reassessment for Improvement of — After Invalid Assessment has been Set Aside — Not Invalidated Because of Settlement as to Some of the Lots — Effect of Omission of Parcel from the Land Described — Presumption that Error was Prejudicial not Applicable to Street Improvement Proceedings — Informality must be Shown to be Prejudicial.

    ,1. Where a street improvement assessment has been set aside after settlement has been made as to part of the lots and lands affected, a reassessment of the lots with respect to which there has been no settlement is not invalid because the lot's 'covered by the settlement are omitted from the reassessment.

      2. The fact that a parcel of land described in a special improvement ordinance is not specially assessed does not affect the validity of the assessment, provided such parcel is not specially benefited by the improvement.
    3. The principle that in error proceedings when error is shown it is presumed to be prejudicial, does not apply to irregularities in apportioning improvement assessments; such cases are governed by the principle of liberal construction provided for in Revised Statutes, Section 2327 (1536-280).
    4. An informality in an improvement assessment is not a sufficient ground for setting aside the whole assessment, unless it is shown that prejudice has resulted to the plaintiff by reason of such informality.
    Parker, J.; Haynes, J., and Wildman, J., concur.
   On May 15, 1899, the common council of the city of Toledo adopted an ordinance providing for the improvement of a part of Navarre avenue from Woodville street to the easterly city boundary. Navarre avenue was subsequently improved in accordance with this ordinance by paving the central thirty feet thereof. The assessment upon the property' benefited was set aside by this court in accordance with the decision of the Supreme Court in Ayers v. Toledo, 72 Ohio St., 651, or, rather, the principles that seemed to be applied by the Supreme Court in the reversal, without report, of the decision of that case by this court, which decision is reported in 6 C. C. — N. S., 57. Thereupon the council took steps to have a reassessment upon certain of the property benefited, it appearing that as to a large part of the property the assessments had been paid, or settled or adjusted in such manner as that it was not necessary for the council to take any steps with reference to such parcels; in other words, there were some 114 parcels in all and but eight parcels remained unadjusted, and those are the eight represented by the plaintiff here. The council, on April 16, 1906, taking notice of this judgment setting aside the original assessment, and taking notice of the fact that the assessments as to all of these lots and parcels, excepting the eight, had been adjusted, ordered that there should be a reassessment of these eight parcels (quoting from the resolution) : “As near as may be according to benefits and in proportion that the benefits received by said lots and lands bear to the total benefits received by all the lots and lands bounding and abutting upon said improvement and as set forth in the resolution and ordinance providing for said improvement. ’

Assessors were appointed who made their report assessing a part of the cost of this improvement upon these eight parcels; and in their report they set forth, among other things, that they “find and report an estimated assessment upon the lots and lands set forth in said resolution adopted April 16, 1906; which estimated reassessment so reported herein is made on the lots or parcels of land to be charged therewith as nearly as may be, to the special benefits which result from said improvement to the said several lots or parcels of land so assessed, and is apportioned among the several lots or parcels of lands specially benefited by said improvement in the proportion that the special benefit to each lot or.parcel of land benefited bears to the whole special benefits conferred by said improvement.”

They then proceed to find the fair market value of these lots and set forth the amount of benefits. This report was confirmed by the council, and the assessments made in pursuance of this action — these reassessments by this committee — are attacked by the plaintiff here, and the attack is made upon several grounds, which I shall mention in their order.

The first ground is, that all of the 114 lots not having been reassessed, but only the eight lots of the plaintiff, the reassessments could not have been according to benefits, as required by original Section 2264, Revised Statutes, then in force — the statute under which the reassessments had been made.

We find no statute requiring that, upon a reassessment because of a former assessment having been set aside, such reassessment shall include the lots and lands with respect to which settlement has been made, and we can think' of no reason why that should be done. ' Counsel in his brief quotes from the case of Cornell v. Franklin County, 67 Ohio St., 335, 339, as follows:

“To any extent that one man is compelled to pay in order to relieve others of a public burden properly resting upon them, his property is taken for private purposes, as plainly and as palably as it would be if appropriated to the payment of the debts or the discharge of obligations which the persons thus relieved by his payments might owe to private parties.”

That is undoubtedly true; but here, as I read from the report of these assessors, they took into consideration not only the benefits resulting to these eight parcels; they not only found that such lots were specially benefited to the extent of the assessments returned, but they found that no assessment exceeded a fair and just proportion of special benefits conferred upon the lot assessed; and they further say distinctly, that they apportion the whole cost of the improvement — that is to say, the whole amount which was to be ‘assessed upon private property — “ among the several lots or parcels of land specially benefited by said improvement in the proportion that the special benefit to each lot or parcel of land benefited bears to the whole special benefits conferred by the improvement.”

In the absence of any showing that they did not do this, we must assume that their statement is correct; that they did proceed in this way,' and that they took into consideration the benefits to the other lots not reassessed, the amount that should be apportioned to them had they not paid their share of the assessments, precisely in the same way and with the same effect of relieving these eight lots from the burden of assessments as if they had actually returned a new assessment against the omitted ■ lots. We can not see how they could well have actually returned a new assessment against these other lots, in view of the fact that such lots had borne their shares and proportions of the expenses. We think that in this action the authorities complied with the requirements of the law.

It is pointed out as a second reason why this reassessment should be set aside, that a part of a certain tract of land, described in the improvement ordinance, was not assessed any part of the cost or expense of this improvement by either the original assessment or this reassessment,. and counsel presents the case upon the assumption that because this parcel of land was described in the original improvement ordinance it must necessarily, follow that it was one of the parcels of land benefited by the improvement, that it must share a portion of the burden of the improvement, and it not having done so that its share — some part of it at least — must have fallen upon the eight lots owned by the plaintiff. While the statute required that the ordinance should set forth specially the lots and lands to be assessed, we do not understand that such designation by the ordinance determines, necessarily, that every one of the lots so set forth shall be assessed. In other words, if the committee commissioned to make the assessments should discover that some one or more of the parcels of land described in the ordinance are not in fact benefited by the improvement, we do not understand that they are required to return that there is some benefit, or to make some assessment upon these lots simply because they have been described in the improvement ordinance. For aught that appears, this small.parcel of land to which our attention is called, which was omitted from the lands assessed, was not benefited by the improvement. It is a small parcel of land irregular in form, lying eighty rods distant from this paved street; and as we are shown, there are other streets intervening between this parcel and the improved street. It is doubtful if an assessment upon this parcel could be sustained had it been made.

There is a question discussed by counsel in this case respecting the presumption of prejudice, or no prejudice, resulting from error in proceedings of this character. I wish to defer what I have to say upon this subject until I have said something about the third ground of complaint, for that subject has to do with both the second and the third grounds — perhaps with all the grounds of complaint.

The third ground of complaint is, that no assessment was made to be paid by the city on account of the intersections.

In the ease of Burr v. Parker, post, decided by this court in February, 1907, we had occasion to discuss, briefly, the statute on that subject. We are not required in that case to pass upon the question whether a part of the costs of such improvements should be assessed against the city on account of the intersections, in pursuance of Section 2275, Revised Statutes (repealed, 96 O. L., 96), for the reason that the'parties had not, by their averments, put themselves in a position to fairly raise that question; but we called attention to the peculiar state of the law on the subject as apparently made applicable to the city of Toledo, and expressed our doubts as to whether it was really intended that Toledo should be subject at the same time to the provisions of Sections 2274 and 2275, Revised Statutes (repealed, 96 0. L., 96). It is now urged on behalf of the plaintiffs that if these two sections are not reconcilable, Section 2275, Revised Statutes (repealed, 96 0. L., 96), having been enacted or amended after Section 2274, Revised Statutes (repealed, 96 0. L., 96), 'the former should prevail over the latter, and that therefore, in the city of Toledo, at the time of this improvement, some share of the expense of the improvement should be assessed against the city on account of intersections; in other words, the intersections should be treated as abutting property.

It appears that in this case the whole cost of the intersections was paid by the city. If, proceeding under Section 2275, Revised Statutes (repealed, 96 0. L., 96), the city had directed the assessing committee to -assess the whole cost of the improvement including the costs of intersections upon all of the abutting property, including the intersections, it is not apparent that that would have lightened the burden of plaintiffs here; indeed it seems to be almost demonstrable that a heavier burden would have fallen upon the property owners than was laid upon them where the city proceeded, as it did, to deduct the whole cost of the intersections and pay it from the city fund. We still entertain doubts as to whether Section 2275, Revised Statutes (repealed, 96 0. L., 96), should be given effect; but, assuming that it should, it is not apparent that any prejudice resulted to the plaintiffs from the city’s proceeding as it did instead of proceeding as counsel for plaintiffs contends it should have proceeded.

Upon this subject, counsel for the plaintiffs in his brief cites the cases of State v. Aldridge, 66 Ohio St., 598, and especially 604; Cleveland Punch & Shear Wks. Co. v. Carton Co., 75 Ohio St., 153, and especially 170, to the effect that in error proceedings, where error is shown, prejudice is presumed. That, of course, is the general rule, in cases of that character. He also cites the language of the court in the course of the opinion in the ease of Stephan v. Daniel, 27 Ohio St., 527, the notation being at 536, to the effect that under Section 5848, Revised Statutes, a remedy is given by injunction to restrain the collection of assessments or taxes unlawfully levied, and that in the application the plaintiff need not aver or show, as required under ordinary rules in equity, that great or irreparable injury is about to be done for which he has no adequate remedy at law, but he need only show that the tax which is about to be assessed or collected is illegal. But we do not think that the authority just mentioned, or those upon the subject of proceedings in error, quite meet the question. The authorities that we regard as more nearly in point are cited by counsel for the city, and to some'of these I will call attention.

. In the first place, it is provided in Section 2327, Revised Statutes (1536-280) that—

“Proceedings with respect to improvements shall be liberally construed by the councils and courts, to secure a speedy completion of the work, at reasonable cost, and the speedy collection of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded; but the proceedings shall be strictly construed in favor of the owner of property assessed or injured, as to the limitations on assessment of private property, and compensation for damages sustained.”

Now we do not regard the question made here as one involving limitation on assessments; it is not one involving compensation for damages sustained, nor is it one that goes to the jurisdiction of the city officials; so that we think it is a case in which the doctrine of liberal construction should be applied to the proceedings of the city and its officials. Their actions should not be modified or set aside even if there should be informality therein, unless some prejudice to the party complaining should be made manifest or at least probable.

In Ayers v. Toledo, supra, we expressed-our views upon this subject, and we have done so in a number of cases, but our views are. challenged, and we- feel disposed to look further for authority than our own utterances. In the case of Burr v. Parker, supra, this was said:

“Now it may be, that, if it should be made to appear that some lots or lands that should have been assessed were omitted, that would render the assessment of the other lots and lands invalid so that the court would be required to enjoin the assessment and a new assessment would have to be made including those lots and-lands; but certainly, where one goes into a court of equity with a claim of that character, he should make it appear affirmatively that the lots and lands which he says should have been assessed derived some benefits from the improvement, so that they should have been assessed and so it should appear at least probable that upon a reassessment some assessment would be laid upon such lots and lands and probably thereby the assessment upon his lots and lands would be lessened.”

And one clause of the syllabus in Ayers v. Toledo, supra, is:

“No presumption that an assessment is inequitable arises from the mere failure of the municipal council to make a record, of the valuation of property charged therewith.”

To be sure, as already said, this decision was reversed, but we do not understand that the doctrine stated in that clause of the syllabus was necessarily disapproved; and I shall undertake to show that it is the doctrine of the Supreme Court as set forth in a number of cases.

In the case of Steese v. Oviatt, 24 Ohio St., 248, it is said, page 253:

“Proceeding under the statute, the party complaining is not required to show a case of threatened irreparable injury, or the absence of a remedy by ordinary legal proceedings; but he must exhibit á case in which, upon the merits, he is entitled to the equitable relief demanded.
“In these cases, notwithstanding the irregularities complained of, the plaintiff’s property was, under the statute, clearly subject to be charged to pay the expense of the respective improvements. The assessments were made by competent authority, and although irregularly made, it does not appear that any injustice was done.”

In Cincinnati v. Shoemaker, 1 C. C. — N. S., 11, which was affirmed by the Supreme Court in Cincinnati v. Shoemaker, 68 Ohio St., 733, this language occurs, page 13:

“If the benefits conferred are equal to the assessment, there is nothing to move a court of equity to intervene by injunction. ’ ’

In Ridenour v. Saffin, 1 Handy, 464, reading from page 245, the court say:

“We know it is said, that for aught that appears, the heaviest and most costly part of the work might have been done on that part of the road which was not required to be improved; but that would be to reverse the rule of presumption, which holds, in matters of public duty, that the acts of the public officer are rightly done. Where it is not shown by proof, either way, how the matter stands, it ought to be presumed that the lawmaking power has acted in the spirit of equality and justice.”

In Benham v. Cincinnati, 4 C. C. — N. S., 36:

“Where, however, the assessing board has made a finding of benefits and has made the assessment on that basis, such finding and assessment are prima facie correct, and should not lightly be disturbed or inquired into in the absence of allegations of some of the grounds usually invoking equitable intervention. ’ ’

In Block v. Godfrey, 5 C. C. — N. S., 318, quoting from page 319: '

“We are of the opinion, therefore, that there having been no objection made by Mr. ITayes at the time this apportionment was made, but he having acquiesced in it, he is bound by it, and that the fact that some part of the assessment was not levied upon these other lots, in the absence of any evidence that there was any injustice therein, this apportionment of the whole cost of the improvement to lots 1 to 29, does not present any legal ground for invalidating the assessment or enjoining the levy.” Affirmed, Block v. Parker, 71 Ohio St., 533.

Chicago, R. I. & P. Ry. v. Chicago, 139 Ill., 573, 580: In order to be entitled to relief plaintiff must show that his assessment would have been reduced by showing “that the street railway was specially benefited, and the extent of its benefits; but there can be no presumption in that respect in the absence of evidence. ’ ’

In Walters v. Lake, 129 Ill., 23, 29, it was claimed that part of the cost of the improvement should be assessed against the city by reason of intersections; but it was said that—

“The commissioners have decided that there has been no public benefit to the town. The only course left for the objectors was to show upon the hearing that their lots were benefited less than the amount assessed against them.”

B. A. Hayes, for plaintiffs.

C. S. Northup and O. W. Nelson, contra.

Davies v. Saginaw, 87 Mich., 439, 451:

“The confirmation of that roll by the council, determined that the proportion of the aggregate benefit received by each parcel was equal to the burden imposed, and in the absence of fraud, oppression, or manifest mistake, such determinations are conclusive. ’ ’

White v. Tacoma, 109 Fed. Rep., 32, 36:

“If it appears that an assessment has been levied by competent authority, and that it is fair, and not in excess of the benefits to accrue by reason of the improvements to be paid for, it will be sustained by the courts.”

See, also, Muchmore v. Miller, 11 Bull., 160.

We are of the opinion that the plaintiffs have failed to show that they have been prejudiced by any informality that may have crept in here; they have failed to show that there is any equity or real merit in their complaint. On the other hand, it seems to us to be very apparent that the council has proceeded with care in the matter of this reassessment. The burden laid upon these lots is somewhat lighter than it was under the original assessment and no property seems to have been omitted that was really benefited, and, therefore, we think we should not set this assessment aside. The petition of the plaintiffs will be dismissed at their costs.


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    CONTRIBUTORY NEGLIGENCE.
    Circuit Court of Hamilton. County.
    The C., L. & N. Railway Company et al v. Anthony J. Bokenkotter, Administrator.
    Decided, June 29, 1907.

      Negligence — In Crossing a Railway Trade without Looleing — Rrror in not Directing a Verdict.

    Where one who is familiar with the location of railway tracks attempts to cross without looking for an approaching train, which might have been seen two thousand feet away, and is struck by it, he is guilty of contributory negligence, and it is error to refuse to direct the jury to return a verdict for the company.

      Wm. W. Ramsey, for the railroad company.

      E. M. Ballcurd, contra.
    Smith, J.; Swing, P. J., and Giffen, J., concur.
   There is error in the record of the trial below in that the court overruled" the motions of the plaintiffs in error at the close of the testimony offered by the defendant in error to direct the jury to return a verdict in their behalf.

The testimony clearly shows the deceased to have been guilty of contributory negligence. He was employed as station agent at Hopkins avenue station. He crossed the south-bound track to tho north-bound track, and in attempting to return did not look to see or pay any attention as to whether a train was approaching ; and yet the track was straight for two thousand feet in the direction from which the train approached, and it could have been easily discerned. .

Judgment reversed.


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    PLEADING UNDER. AN INDEMNITY INSURANCE POLICY.
    Circuit Court of Lucas County.
    Isaac Kandar v. Aetna Indemnity Co.
    Decided, June 15, 1907.

      Insurance Against Burglary or Theft — Action on Policy — Construction by Agent of Rules of the Company to Suit the Circumstances— Pleading — Defenses—Waiver of Part Performance — Knowledge of Agent as to the Facts — Incorrect Statement of Facts by the Agent in the Application — Estoppel against the Company — Section 3644.

    1. Where the plaintiff, in an action on an insurance policy, has been released from performance of any of the conditions of the contract, he should aver such facts in his petition; but matters of a merely defensive nature need not be met earlier than at the filing of the reply.
    2. Where the agent of the company, in filling out the application for a policy of insurance against loss by burglary or larceny, construes a certain question asked of the applicant to suit the circumstances of the particular case, he acts for the company, and the company can not escape liability on the policy on the ground of the incorrectness of a statement in the application, based on a contrary construction.
    The authorities cited for the defendant in error were: Travelers Ins. Co. v. Myers, 62 Ohio St., 529; Union Central Life Ins. Co. v. Hook, 62 Ohio St., 256; Eureka Fire & M. Ins. Co. v. Baldwin, 62 Ohio St., 368; Northern Assur. Co. v. Building Assn., 183 U. S., 308; Gould v. Insurance Co., 90 Mich., 302; Quinlan v. Insurance Co., 133 N. Y., 356; Pete v. Woodmen of the World, 5 C. C. — N. S., 446; Hollis v. Insurance Co., 65 Iowa, 454; Barre v. Insurance Co., 76 Iowa, 609; Wadhams v. Insurance Co., 117 Mich., 514; Kirkman v. Insurance Co., 90 Iowa, 457; Carey v. Insurance Co., 84 Wis., 80; Walsh v. Insurance Co., 73 N. Y., 5; Insurance Co. v. Pyle, 44 Ohio St., 19.
    Materiality or representations: Deming Invest. Co. v. Insurance Co., 16 Okla., 1.

      Wildman, J.; Haynes, J., and Parker, J., concur.
    Error to Lucas Common Pleas Court.
   This is a proceeding in error- to reverse the action of the court of common pleas in sustaining a demurrer to the amended reply of the plaintiff and rendering judgment for the defendant on the pleadings. The case below was one instituted by the plaintiff in error, Kandar, upon a policy of insurance issued by the defendant company to indemnify Kandar against loss by reason of burglary, theft or larceny of property of certain classes described in the policy. Among the claims asserted in the answer is one embodied in what is called the second defense. It is properly the first defense, because the matters treated of in the so-called first defense are merely admissions and denials of the averments in the petition. This so-called second defense asserts, in substance, that a certain misrepresentation was made by the insured in the application for the policy, or, what is equivalent thereto, perhaps, in a certain “schedule” containing a number of statements, not signed by the insured but attached to the policy itself. The policy purports to be issued in consideration of $12.50 premium “and of the statements in the schedule hereinafter contained, which statements the assured makes on the acceptance of this policy and warrants to be true.”- The particular statement embodied in the schedule and referred to as No. 6, reads:

“The assured has never suffered loss by burglary, theft or larceny either at the premises above described or elsewhere, nor received indemnity therefor except as herein stated. ’ ’

There is a clause, No. 16, not in the schedule, but in the body of the policy, reading as follows:

“No agent has authority to change this policy or to waive any o'f its provisions, nor shall any notice to the agent or knowledge of his or any other person be held to effect a waiver or change in this contract or in any part of it.”

Relying upon these, provisions in the policy, the defendant in the so-called second.defense, alleges that it was not true that the plaintiff had never before had any property ‘stolen from him, but, on the contrary, that some time in the year 1901, he had suffered loss by burglary, theft and larceny at his warehouse at the corner of Short and Huron streets, in the city of Toledo, Ohio, “at which time persons unknown to defendant broke into and entered the said warehouse of plaintiff, and then and there did steal, ’ ’ certain property mentioned. The property claimed by the plaintiff to have been stolen, and for the loss of which he sought this indemnity on the policy, was a certain diamond ring of the value, as claimed by the petition, of $450, which was stolen from some room in the residence of the plaintiff in the city of Toledo. The amended reply of the plaintiff, to which demurrer was interposed and sustained, is, so far as relates to this inquiry, as follows:

“For reply to the second defense in defendant’s answer, plaintiff states that he did not read the questions contained in the application for policy of insurance mentioned in the petition, but that the questions were asked him by the agent of the defendant and that said agent inquired of plaintiff only as to any previous burglary, theft or larceny that plaintiff may have had in his residence, and said agent assured said plaintiff that it was only necessary for defendant to know as to whether or not any burglary, theft or larceny had been suffered by plaintiff in his residence, and plaintiff denies each and every allegation contained in said second defense conflicting with the foregoing allegation. ’ ’

The defendant contends that this is no reply; that it does not legally meet the defense asserted; and it is suggested to the court also, by counsel for defendant in error, that this claim in the reply amounts to a waiver of the conditions of the policy, and that it should have been asserted, if proper at all, in the petition rather than in the reply. With this latter claim we are not in accord. It is not a waiver of some condition to be performed; not a waiver of some requirement on the part of the plaintiff, but it is a matter rather of claimed estoppel to assert the defense which is alleged in the answer. The answer asserts that the plaintiff is not entitled to the relief which he seeks, because of the incorrectness of a representation made to the company .upon which.it based its action in issuing this policy; and^ the plaintiff attempts to meet this claim by saying that the defendant company had knowledge of these facts; that it did not need to rely upon any representations made by the plaintiff to it or to its agent; in other words, that the company had this knowledge, and the agent of the company having placed a construction upon what may possibly be an equivocal or ambiguous clause in its schedule attached to the policy, is estopped now to dispute that construction.

We think it altogether true that when a plaintiff is suing upon a policy, and is seeking to avoid the performing of some condition precedent, or subsequent, obligatory on him, he should assert the facts in his petition which release him from the performance of such obligation. As, for instance, concerning the requirements as to proofs of loss and payment of premium, if for any reason he has been released from such requirements, he should aver such fact in his petition, and he could not meet-the obligation resting upon him so to plead by asserting that he had performed all the conditions precedent. A waiver of performance is not the same thing as performance. But he was not bound to anticipate here the assertion of this defense. The claim asserted by the defendant is purely defensive, and for that reason the plaintiff was not compelled to meet it at any earlier stage of the proceedings than the filing of his reply.

Section 3644, Revised Statutes, having reference to insurance companies other than life, provides that:

“A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party, company or association thereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding.”

In the policy before us there is no provision that the solicitor for the insurance shall not be deemed the agent of the company, or that he shall be deemed the agent of the insured; but it is perhaps not necessary to invoke the aid of the statute in behalf of the plaintiff here, in view of the facts that this question arises upon a demurrer which concedes the truth of the allegations properly made in the reply, and the reply nowhere says that the person placing this construction upon the schedule was merely a soliciting agent, but the language is, that the questions were asked him by the agent of the defendant “and that said agent inquired of plaintiff only as to any previous burglary, theft or larceny that plaintiff may have had in his residence, and said agent assured said plaintiff that it was only necessary for defendant to know as to whether or not any burglary, theft or larceny had been suffered by- the plaintiff in his residence;” and he further avers that “at the time of writing said application and policy of insurance defendant had full knowledge that plaintiff had suffered loss by theft and larceny at his place of business.” We must then take it for granted that these statements were made by the agent of the company; that he had knowledge of the fact of a previous larceny of the plaintiff’s property, and, possibly of the further fact that the company itself had such knowledge, as averred in the reply, treating all of these allegations as conceded by the demurrer to be true. But in view of the probability that in the drafting of this pleading, counsel meant no more than this, that the company had constructive knowledge, or that knowledge which they were bound to have by reason of the communication of facts to their agent, or knowledge possessed by the agent, it is well enough to consider what is the law applicable to such condition.

Reliance is placed by counsel for defendant upon two cases, Union Cent. Life Ins. Co. v. Hook, 62 Ohio St., 256, and Travelers’ Ins. Co. v. Myers, 62 Ohio St., 529. One of these is a life insurance case, and the other an insurance against liability to employes who sustain bodily injury while on the pay roll of the insured. In the case of Union Cent. Life Ins. Co. v. Hook, supra, page 256 of this report, it was held, as stated in the first syllabus:

“In an action to recover on a written contract for life insurance and upon an alleged subsequent verbal modification of the same, statements and representations made by the agent who solicited the policy prior to, and contemporaneous with, the issue of the policy, are inadmissible to vary, in any respect, the terms of the written policy. In the absence of proof of fraud or mistake, such statements and representations are merged in the written contract.”

The verbal representation which was relied upon in the ITook case was one which it was claimed extended the policy one year and waived the payment of an annual premium. These' were changes which, under the terms of the policy, could not properly be made by an agent of the company, nor could they be proven by parol; but Judge Davis, who rendered the opinion in the case, says, on page 265:

"We do not decide that there might not be an estoppel by conduct, notwithstanding such an agreement. But that ease does not arise here.”

The other case, Travelers’ Ins. Co. v. Myers, supra, provides, as we read in the third syllabus:

"When such policy contains a stipulation that ‘no agent has authority to waive or ’alter anything in this policy contained,’ and the same is accepted by the insured, it is both notice to, and an agreement by, the insured that an agent has no authority to waive or alter anything contained in the policy.”

We take this to mean that the agent has no authority to change the contract, but that is not inconsistent with the view that the company may, under certain circumstances, be estopped by its own conduct, from asserting some matters of defense. The question is, whether the matter which we have.here is one which might be covered by that principle. Counsel for the plaintiff in error urge as a proper construction of the policy that the term "elsewhere” as found in the schedule, is to be construed as meaning other premises on which the insured has resided, or something equivalent to that, and considerable support is found for this contention in some of the cases, notably State v. Clark, 52 N. J. Law, 291.

It is insisted that the case falls within the principle wherein the courts have held, that when certain articles or certain places are enumerated -and then some general word is used following the conjunction "or,” this general term is to be treated as ejusdem generis; that is to say, of the same kind or class, as the articles, or places just mentioned. Here the statement is, in substance, that the assured has not suffered loss by burglary, theft or larceny either at the premises above described or “elsewhere”; and it is very earnestly urged that the word “elsewhere” does not mean anything more than some other premises in their general nature like those already described. Perhaps in the construction of this phrase, however, we should consider the purpose of this stipulation. What was the object of the insurance company in asking for such information? We think it altogether likely that the company designed to ascertain whether the person seeking insurance was careless as to the protection of his property. — one who would be likely to leave it unguarded, or put it in such place or places that it might tempt others to larceny or burglary — and perhaps with that thought,' it might not make very much difference whether the prior theft was one from the residence or whether it was one from the warehouse.

It may safely be said that the most that can be claimed by either of the parties to the controversy is, that the phrase is somewhat ambiguous; that it is not free from doubt as to its, construction. Now, if that be so, a second inquiry becomes altogether pertinent: What is the effect of the phrase or, rather, the construction put upon it by the agent of the company at the time when the question is asked and the answer given ? And the further question as a corollary to that: If the agent of the company placed a construction upon it, making the answer given an honest one, is the company bound by it so as to be thereafter estopped from .asserting as a defense to an action on the policy that a false representation had been made in this regard ? We are not without authorities upon questions somewhat analogous. We have found reference to a mass of litigation along the same lines in Clemans v. Supreme Assembly, 131 N. Y., 485 (30 N. E. Rep., 496) et seq. On page 35 is a reference to a case, Texas Mut. L. Ins. Co. v. Davidge, 51 Tex., 244:

“The knowledge of the agent of the misrepresentations upon which the insurance was procured must be pleaded in reply, if ■it is intended to rely thereon to defeat the defense based on such misrepresentations. ’ ’

That is precisely the course that was taken by the plaintiff in error here.

“If the insurer’s agent after being informed fully as to the facts, incorrectly states them in the application, the insurer is estopped to take advantage of the error to avoid liability on the policy.” North American Fire Ins. Co. v. Throop, 22 Mich., 146.

Numerous other cases are cited in a somewhat extensive paragraph, which include some cases in New York. On the same page is this:

“If the statements in the application relied upon as breaches of warranty are inserted by the agent of the insurer, without collusion or fraud on the part of the insured, the insurer is estopped to set up their error or falsity.” Baker v. Insurance Co., 64 N. Y., 648, and other cases.

I invite attention to these merely because of their treatment of this sort of a claim as a claim of estoppel, which is recognized by' Judge Davis as already quoted in Union Cent. Life Ins. Co. v. Hook, supra, as not inconsistent with the conclusion arrived at in that case.

On page 37 is cited the case of Key v. Insurance Co., 77 Iowa, 174:

“An insurance company whose agent himself prepared an application with knowledge of the fact that the insured had only a title bond for his land, which was not paid for, can not defeat an action on the policy on the ground that the application improperly states that the insured was the sole and undisputed owner of the property, and that it was unincumbered, where this was signed by the insured after making a full statement of facts, in accordance with the agent’s theory of his title.”

There was a case where the agent seems to have put a construction upon the facts which was adopted by both the agent and the insured, and the insured made the application and signed it. And again, on page 38, citation is made of the case of Equitable Life Ins. Co. v. Hazlewood, 75 Tex., 338 (12 S. W. Rep., 621) :

“A former rejection of the insured on his application to a legion of honor is not a breach of a warranty that he had never applied for insurance in any other company, when the agent told him that a legion of honor was not an insurance company.”

Just as here, where he claims the agent told him that this clause “elsewhere” had reference only to other residences occupied by him, and not to a warehouse. The case of Continental Life Ins. Co. v. Chamberlain, 132 U. S., 304, is also mentioned. I have the case before me, but I will not stop to read from it. The annotation in Clemans v. Supreme Assembly, supra, page 38, is as follows:

“Where the agent writes in the application that the applicant has no other insurance, although the applicant told him that he had certificates of membership in co-operative companies, which the agent said were not considered insurance by him, is bound by the agent’s interpretation, and estopped from asserting the contrary.”

That case seems to be pretty close to the case at bar, and, being a decision of the Supreme Court of the United States, is, of course, entitled to the highest respect. It was the unanimous expression of that court.

In our own state we have, among other cases, that of Insurance Co. v. Williams, 39 Ohio St., 584. This was not a life insurance case, so as to be affected by the express provisions of the section in our statutes as to life insurance companies, but it was embraced in a class of insurance other than life insurance. The syllabus of the ease is as follows:

“A soliciting agent, procuring for an insurance company risks 'and applications on which policies are issued, who fills up the application, is in so doing the agent of the company, and not of the insured; and if the agent make a mistake in wrongly stating facts which were correctly given him by the insured in preparing the application, the company is bound by, and responsible for, such mistake.”

Judge Follett quotes, on page 588 of his opinion, from the ease of Combs v. Insurance Co., 43 Mo., 148, 149, which is the language of the Supreme Court of that state:

“The authority of the soliciting agent of an insurance company to take applications for insurance carries with it the legal implication of authority to fill up the application, and do all those things which may be needful in perfecting it.”

And then Judge Follett adds:

“That was a case sought to be defeated on the ground of false' representations and warranties in the application. Here the agent wrote the application, and was given a correct description and told to write it in the application, and by mistake did not do it.”

He refers also to the case of Rowley v. Insurance Co., 36 N. Y., 550, in which that court say, page 589:

“An agent, authorized to take applications for insurance, should be deemed to be acting within the scope of his authority, where he fills up the blank .application of insurance; and if, by his fault or negligence, it contains a material mis-statement not authorized by the instructions of the party who signs it, the wrong should be imputed to the company, and not to the insured. ’ ’

Numerous other authorities are cited from the state of New York showing that the result of the adjudications in that state is not «inconsistent with the conclusion of the court in Insurance Co. v. Williams, supra, and the application of the principle of estoppel.

Judge Follett also cites Union Mut. Life Ins. Co. v. Wilkinson, 13 Wall., 223, where the Supreme Court say:

“Hence, when these agents in soliciting insurance, undertake to prepare the application of the insured, * * * they will be regarded, in doing so, as the agents of the insurance companies, and not of the insured.”

Other eases are cited, including the case of Massachusetts Life Ins. Co. v. Eshelman, 30 Ohio St., 647, in which our own Supreme Court Commission held:

“A sub-agent of a life insurance company appointed to represent it in a particular branch of its business, becomes", in reference thereto, the direct representative of the company, and notice of a fact to him will operate as notice to the company, and it will be bound by acts done by him in respect to that branch of its business intrusted to him. ’ ’

Then Judge Follett concludes with this paragraph: " .

“As showing this to be the policy of our law, we now have a statute going much beyond this case, passed March 5, 1879, and is now Section 3644, Revised Statutes, reading: ‘A person who solicits insurance and procures the application therefor, shall held to be the agent of the party hereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding.’ ”

That section, as cited by Judge Follett, has undergone slight changes in arriving at the condition in which we find it embodied in our present revision. The changes . are immaterial so far as this answer is concerned. As suggested by my associate, Judge Parker, the Supreme Court in this case of Insurance Co. v. Williams, supra, is basing its conclusion not upon Section 3644, Revised Statutes, which was passed after the rights of the parties had accrued, but Judge Follett cites the section merely as showing the tendency of our legislation. In reference to this section of the statute, it is manifest that the Legislature had some purpose in enacting that the soliciting agent should be deemed, under such circumstances, the agent of the company, although so far as the terms of the legislation go there is nothing further. The purpose of the section is its application as fixing the rights and liabilities of the insured and the insurer. It must be, that the Legislature in enacting that the soliciting agent under certain circumstances, shall be deemed the agent of the company, intends that he shall have power to bind the company as its agent to some extent, and' we think that the statute was passed in recognition of the general practice of agents of receiving the statements of claimed facts from persons whom they were seeking to insure and embodying them in applications for insurance or in such schedules perhaps as we find here, attached to this policy. ■:

I find that our own court has had occasion to look somewhat into this question and to pass upon the principle in the case of Phoenix Mut. Fire Ins. Co. v. Bowersox, 6 C. C., 1. I read the fifth paragraph of the syllabus:

“Where the agent of an insurance company, in taking an application for insurance against loss by fire, himself writes out the answers of the applicant to interrogatories propounded in behalf of the company, he acts in that regard as the agent of the company; and if any mistake occurs in writing out such answers, such as an excessive estimate of value, based on the truthful statements of the assured, without fault on the part of the assured, the latter is not prejudiced thereby.”

The members of the court at the time this decision was rendered, in 1901, were Judges ITaynes, Bentley and Scribner, and the opinion is per curiam, all of the judges indorsing not only the judgment which was rendered, but the entire phraseology of the opinion. I will not stop to read from this opinion, but will say only that it fully sustains the proposition in the syllabus which I have already read. It is suggested to me, and before leaving the discussion of the subject I will say that the provision in our present revision, Section 3644, Revised Statutes, has application to all insurance companies other than life. When originally enacted as a part of the Holland law it had reference to fire insurance companies only, but it is now embodied in the chapter pertaining to insurance companies other than life, and in another part of the same chapter we find provision for insurance companies of the class represented by the defendant in this suit; that is, insurance against losses by crimes such as burglary, theft, larceny, etc. The ease of Phoenix Fire Ins. Co. v. Bowersox, supra, received consideration by another court higher than the circuit court; it was carried to the Supreme Court and the entry on the docket of the Supreme Court shows that it was dismissed March 21, 1893, so that the last judicial determination of the matter, so far as that case is concerned, is embodied in the decision as quoted. There is an earlier ease in, Ohio to which reference might be made: Hartford Protec. Ins. Co. v. Harmer, 2 Ohio St., 452, in which it was held, in the sixth paragraph of the syllabus:

“If a representation is. untrue as to incumbrances, but not fraudulently made, and the agent of the company knows the true state of facts, and writes the statement as made from his own knowledge, and fails to state it truly, such misrepresentation will not avoid the policy, and this is true, although the statement is signed by the agent of the insured. ’ ’

Chittenden & Chittenden, for plaintiff in error.

Sotithard & Southard, for defendant in error.

In the so-called second defense in this answer there is perhaps a substantial averment of fraud on the part of the plaintiff; that is, an allegation that he knew the statements to be false; but that part of the answer is denied by the reply. The plaintiff does not mention it specifically, but he denies all matters antagonistic to, or inconsistent with, the statements made in the reply including the statement that the defendant’s agent and the defendant had full knowledge of all the facts. We think that there is enough in the reply, to carry to the mind of any reader an understanding that the plaintiff is asserting that the defendant company was not misled by any language in this schedule negativing a previous larceny in his residence or elsewhere, and that plaintiff made the statement in good faith.

Our judgment is, that the demurrer should have been overruled, and that the court, in sustaining it, committed error; that the court also erred in dismissing plaintiff’s case upon the pleadings. For these errors the judgment of the court will be reversed and the cause remanded, with instructions to overrule the demurrer, and for such further proceedings as may be required.