author: Parker, J.

text:
    FAILURE TO FH.E PROOFS OF LOSS WITHIN STIPULATED TIME.
    [Circuit Court of Lucas County.]
    H. W. Billings v. The National Insurance Company of Cincinnati.

    Decided, March 11, 1905.

      Fire Insurance — Proofs of Loss — Failure to File Within Sixty Days— Waiver — Agent Without Authority to Grant — Except in Writing Endorsed on the Policy, When — Waiver as to What Occurs After Loss.

    1. A policy of fire insurance, containing a provision that proof of loss must he presented to th.e company within sixty days of the occurrence of a fire, is rendered void by faiiure to present the proofs within the time limit.
    2. No officer or agent of an insurance company has authority to waive any of the stipulations of a policy, except in the manner provided therein; and a provision requiring that, in case of- loss, the insured shall file a sworn statement thereof within sixty days, can not b’e waived verbally by an agent of the company, where the conditions of the policy require that the waiver be in writing endo:sed on the policy or attached thereto.
    Hull, J.; Haynes, J., 'concurs; Parker, J., dissents.

       Affirming Billings v. National Insurance Co., 2 N. P.—N. S., 21.

   This action was brought in the court of common pleas on two insurance policies, issued, one in 1902 and the other in 1903, on a certain store and its contents owned by Mr. Billings and situated in the village of Whitehouse, this county. The amount of insurance was $400 on one policy and $1,000 on the other. The fire occurred on July 1, 1903. The insurance company refused to pay the policies, on various grounds, and among them on the ground that no written, sworn statement of the loss was filed with the1 company within sixty days after the fire as required by the policies. There were other objections made by the insurance company: that an inventory had not been kept, as required by the policies; that the “iron safe” clause, as it is called, had been violated, etc.., but it is not necessary to consider any question in this case except the one of a failure to file a written and sworn statement of loss within sixty days.

At the conclusion of plaintiff’s testimony, the court directed a verdict in favor of the insurance company, judgment was entered upon it, and a petition in error was filed in this court to reverse that judgment. As I have said, it is not necessary to consider the question as to the keeping of an inventory, or any other question but the one, as it seems to be conceded that there is some evidence in the record tending to show that 'these provisions of the policies were complied with.

It is claimed by the plaintiff in error that the provision in regard to the filing of a printed and sworn statement of loss within sixly days, was waived by the company through its agent and that, therefore, it ought not to prevent a recovery. It appears from the testimony that 'immediately after the fire Mr. Billings notified a Mr. Meister, who was the local agent of the company at Swanton in this county; that Meister came to the scene of the fire the next day and saw what the loss was — the loss being well nigh total and exceeding the amount of insurance, and about $500 worth of property was saved. Mr. . Meister, at the request of Mr. Billings, telegraphed to the company at their general office in Cincinnati, advising them of the fire on that same day or the next day, and he also, at Mr. Billing’s request, immediately notified the company by letter of the loss— the policies requiring an immediate written notice of the loss as well as a sworn statement sixty days later. Mr. Meister, hearing nothing from his communications, in a few days wrote again and received a letter from the company informing him that the matter had been left with a Mr. Meeks, who was the state adjuster of the company, and, according to the testimony, had general charge of the local agents in this state — he being a general agent.

About ten or fifteen days after the fire — the exact time is not stated — Mr. Meeks came to Whitehouse and met Mr. Billings and inquired about the fire. lie inquired first as to whether Mr. Billings had an inventory. Mr. Billings told him he had not, as he thought at that time it had been destroyed in the fire. He claims that this inventory was afterwards found. Mr. Billings testifies that Mr. Meeks thereupon threw up his hands: “He threw up his hands, of course, ’ ’ he says, ‘ ‘ when I told him this, ’ ’ and then says that he told him afterwards to get an invoice of his goods from the wholesale houses, as best he could.

It is not claimed that there was enough here to constitute a denial of liability, on the part of the company, that, under the authorities, would obviate the necessity of furnishing a sworn statement of loss afterwards. Mr. Billings says that Mr. Meeks told him to get invoices from the wholesale houses and said to him, “That will take, probably, about ten days.” Mr. Billings says he understood from this that Mr. Meeks would return; and Mrs. Billings testifies that Mr. Meeks said to get these invoices for his inspection, and that he said that would take a week or ten days. They testify that they expected him to return. But he did not return. Meanwhile Mr. Billings communicated with the local agent, Meister, at Swanton, in regard to the fire and had several talks with him and Meister wrote to the general office of the company, but received no answer to his communications. Billings got his invoices, so far as he could, from the wholesale houses and looked after the goods which were saved. I should say also that when Meeks, the general agent, was on the ground, he inquired about and examined the goods which had been saved from the fire and told Mr. Billings what to do with them, to preserve them, etc. And the time ran along until the time for the giving of written, sworn proof of loss had expired, or was within one day of expiring. Thereupon Mr. Billings had such proofs prepared and transmitted them to the company. The sworn statement did not reach the office of the company until the sixty-first or sixty-second day — there is some dispute as to which it should be called — and was, therefore, out of rule according to the policy, that requiring the statement to be filed, as I have stated, within sixty days from the fire.

I have undertaken to state the |acts briefly as sh«wn by the record. The company claims that, under the facts, this policy is void; that the provision as to proofs has never been waived in the manner required by the policy and contract of insurance and that, therefore, it is not liable.

The policies contain this provision:

“This entire policy, unless otherwise provided by agreement endorsed thereon or added thereto, shall be void if the insured now has * * * or in case of loss, if sworn statement, in accordance with all the requirements of this policy, as hereinafter provided, shall not be rendered within sixty days after the fire.

“If fire occurs the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quality and cost of each article and the amount claimed thereon. * * * And within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and -origin of the fire. ’ ’

And then follow other provisions. And this is contained in the policy, at the end of these provisions:

“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or-permission affecting the insurance under this policy exist or be claimed by the insured unless so- written -or attached. ’ ’

The policy, it is seen, provides in express terms, that no alteration shall be- made in it unless made in writing, and none of its provisions shall be waived or held to have been waived by any agent or officer of the company unless such waiver is in writing indorsed upon the policy or attached thereto.

It is said that this provision requiring the waiver to be in writing, although stipulated for in the policy, may be waived by the general agent of the company, such as Mr. Meeks seems to have been, and that if so, it will be binding upon the company.

Tn the case of Stacy v. Insurance Co., in the 1 C. C.—N. S., 441, we so held, under the circumstances of that ease. In that case, however, the agent whom we held had waived this condition, was appointed as a local agent at Bowling Green, Ohio, but under the circumstances, he being the only agent known to the insured in this country, the eomipiany being a foreign one, and the policy not having been delivered at the time of the fire, we held that he should be deemed to be and regarded as a general agent. The- principal office of the company was in England, and we held in that case — following some of the authorities — that a provision requiring a waiver to be written upon the policy, as this policy does, relates to the alterations or waivers that might be made during the life of the policy and before the loss occurred and that such provisions did not apply after the loss. That ease went to the Supreme Court and that court reversed the case, without report, so that we do not know the exact ground upon which it was reversed, but it is no longer authority in this court or any other- court.

The question here is, whether under the law, especially of this state, there was evidence tending to show that this provision as to a sworn statement of loss had been waived by the company, by a general agent such as Mr. Meeks was, in such a manner as to bind the company. There was no express waiver by Mr. Meeks; he- did not say to Mr. Billings, “You need not prepare your sworn statement,” or “you need not file it”; but it is claimed that his conduct was such that Mr. Billings, as a reasonably prudent man, might consider it a waiver and had a right to assume that the company did not intend to insist upon this provision, the general agent having been sent to look after the affair — an adjuster of losses as he was — having been sent there by the company, and the evidence showing that Mr. Meeks was a state adjuster and general agent of the company having charge of all the local agents in the state. Mr. Billings appears to have acted entirely honestly and in good faith. Whether his attention had ever been called especially to this provision of the policies, does not appear; but, having accepted the policies, he- was, of course, bound by -their -conditions by accepting them and- thereby becoming a party to the -contract.

After examining the authorities which were cited by counsel on both sides in this case, and some others — and a great many were cited1 in the briefs on both sides — a majority of the court have reached the conclusion that, under the decisions of our Supreme Court, the action of the court below was correct— was in accordance with the decisions- of the Supreme Court. Whatever our own notions may have been in the ease; whatever our own judgment was as to what the law was or should be, we deem it our duty — as -of course- it is- — to follow the decisions of the Supreme Court of our state.

There are many decisions in other states that sustain the contention of the plaintiff in error: — the contention that -a provision of this kind requiring that a waiver be- in writing, does not apply to what occurs after the loss. This is held -by many courts and laid down in some text-books, especially May on Insurance, which was cited in the Stacy case; but, on the other hand, there are decisions -of other states which hold the contrary, and we think our own -Supreme Court hold and- intend- it to be the law of this state, that a provision of this kind is to be regarded as an essential part of the contract and that it continues in force after the loss as well as before. It is a provision which the insurance company has a right to miake — that there shall be no -alteration or any waiver by any agent of the company, unless it is- in writing and -endorsed upon the policy or attached to it. The parties have a right to make such a contract as that, and the insurance company has- the right to insist upon.it so as to remove this whole question as far as possible from the uncertain realm of oral testimony, and if -a man accepts a policy with this as a part of the contract, he- is bound by it as well as by all the valid provisions of that contract.

Travelers’ Ins. Co. v. Myers, 62 O. S., 529, is in p-oint. This was not a fire insurance case, but the “Employer’s Liability Co.” for insuring employers against loss or damage by reason of an employe being injured. The policy required immediate notice to the company in case of an injury to an employe; which should be construed, the Supreme Court say, to be notice within a reasonable time. The court say it is very important for the company in such eases to have immediate notice of an injury, that they may inquire into it and find out whether it is within the policy, etc. And a fire insurance company may regard it important that they have a sworn statement within sixty days, setting forth the origin of the fire, so that it may be inquired into by the company. It may not be of as great importance as it is in an employer’s liability ease, but it is clear that it is of very considerable importance. In the third paragraph of the syllabus, the court say:

“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. Union Central Life Ins. Co. v. Hook, 62 O. S., 256, approved and followed.

‘ ‘ ‘ Immediate written notice, ’ in such stipulation means written notice within a reasonable time under the circumstances of the case; and where the facts are not .disputed, what is a reasonable time is a question of law.”

Turning back to Eureka Fire & Marine Ins. Co. v. Baldwin, 62 O. S., 368, we find this, in the third paragraph of the syllabus:

“The power of an agent to waive conditions in a policy of fire insurance is not different from the same power in life insurance. As to such power, Union Central Life Ins. Co. v. Hook, 62 O. S., 256, is followed and approved.”

That is another case in this volume. I have no recollection that these cases were cited to us in the Stacy case at Bowling Green. They are not mentioned in the opinion. On page 541 of the opinion by Judge Davis (Travelers’ Ins. Co. v. Myers, 62 O. S., 529), this is said:

“It was further expressly stipulated in the policy that- ‘no agent has authority to waive or alter anything in this policy contained.’ The policy is not unilateral. Since the insured have received, accepted and retained the policy, they are parties to it although not signing it, and are presumed to know and accept all of its terms .and conditions. * * * The insured having agreed that the stipulation as to notice could not be waived or altered by an agent, can not excuse themselves for nion-performiance of the contract as to notice to the company by showing that they acted on the suggestion of the soliciting agent, that they should not perform the contract as they had miade it. In this conclusion we are sustained by numerous decisions in other states. * * *

“We are aware that there are decisions to the effect that conditions in respect to notice and proofs of loss may be waived by an agent, notwithstanding a provision that no agent can change the same. Those decisions are put upon the ground that such limitations on the authority of agents apply only to provisions relating solely to the formation and continuance of the policy, and which are essential to -the binding force of the contract. while it is running, and do not apply to conditions which are to be performed after the loss has occurred, such as giving notice and proof of loss. While we prefer to put the decision of this ease on the grounds, and in line with, the decisions already stated, we think that we have made it sufficiently clear that the stipulation as to notice in this policy, is of the very substance of the contract in insurance of the kind here contracted for, and therefore could not be waived by any agent. ’ ’

Referring to some of the decisions .cited at the bottom of page 541, we can gather from them the doctrine that seems to be approved by the Supreme Court. The first of these cases which we will notice is Smith v. Insurance Co., 60 Vt., 682, where, in' the sixth paragraph of the syllabus, this is said:

“But a local agent, who never had been held out by the company as possessing any authority except to receive proposals for insurance, fix rates of premium and issue policies, has no power to waive the condition of a policy requiring a statement of loss; and there was error in the charge when the jury were at liberty to find a waiver from the declarations of either the local or general agent.”

Then follows the seventh paragraph:

“But the general agent can not waive the statement of loss in a manner other than that provided for in the policy; thus, he can not give an oral consent to a waiver when by the terms of the contract the waiver must be indorsed on the policy.”

This was a fire insurance case. On page 691 of the opinion, this is said:

“Having held that Turner had authority to waive any condition of the policy, the question remains whether he could do so save in the manner provided by the contract. One condition of the policy is that no officer, agent or representative of the company should be held to have waived any of the conditions of the policy unless such waiver was indorsed on the policy. This provision was a valid one, binding upon the parties, and effect should be given to it. While the defendant could give its oral consent to a waiver of the statement, no officer, agent or representative could consent unless the consent was indorsed on the policy. This point we think well taken.”

That is one of the cases cited with approval by Judge Davis in Travelers’ Ins. Co. v. Myers, supra, and approved by the court as we understand it. According to that case, although Mr. Meéks was ¡a general agent, yet, as such officer or agent, he could not waive this provision of the policy unless it was done in writing as required by the policy. In the case ,a.t bar, it is not claimed •that the waiver was in -writing, rand the only claim is that Billings had the right to believe, and did believe, from the conduct of Mr. Meeks that this provision was waived.

Another case cited in this opinion is Kirkman v. Insurance Co., 90 Iowa, 457. There are other cases from Iowa, and there is one more recent than this, that seems to hold, perhaps, a different rule from this case, but we are'only citing these eases that were approved by the Supreme Court. It is held in this case that:

“Under a policy making it an express condition that none of its provisions could be waived, except in writing by the secretary, an adjuster can not orally waive proof of loss required by the policy.”

There was some correspondence in this case with the president of the company, and the insured sent for a copy of the policy, which was sent to him. The court say, on page 458:

“The claim of waiver of proofs of loss is based upon the acts of the officers and agents of the company by which the plaintiff was induced to believe that no proofs of loss were required. There is nothing in the evidence by which any waiver could be inferred, founded upon the acts or declarations of the agent, Mullen.”

Another ease cited in this opinion is Gould v. Ins. Co., 90 Mich., 302. There the court say, in the syllabus:

“A failure to furnish proofs of loss within the time required by an insurance policy bars an action thereon, unless waived, where the policy further provides that such failure shall work a forfeiture of such right of action.

“A verbal waiver of such condition by an agent of the company will not prevent such forfeiture, where the policy plainly provides upon its face that no agent shall have power to waive any of its conditions except by writing endorsed on or attached to the policy.”

Walsh v. Ins. Co., 73 N. Y., 5, is also cited. The court there say, on page 10 of the opinion:

“The doctrine is established to prevent fraud, and proceeds also upon the- ground that when one of two innocent persons must suffer from the act of a third person, he shall sustain the loss who has enabled the third person to do the injury. If, however, a person dealing with an agent knows that he is acting under a circumscribed and limited authority, and that his act is in excess of or an abuse of the authority actually conferred, then manifestly the principal is not bound, and it is immaterial whether the agent is a general or a special one.” (Referring to the power of the agent to waive unless in writing,)

There are other cases cited, but I will not refer to them; they will be found in the opinion of Judge Davis. In that case the court says there are eases which hold the other way; but that they prefer to follow these, and they are thus made practically a part of this opinion and are approved by the Supreme Court.

It seems like a hardship upon Mr. Billings to lose his insurance upon this account; but if the contract which was made was valid, if the failure on his part to comply with it works a forfeiture under the law of this state, this court is unable to help him. There is force in the contention that where a company has sent its general agent to adjust a loss and look into it, that it should be held to be a waiver of a written and sworn statement of loss. That would seem to be an equitable doctrine; but the cases deeided by and approved of by the Supreme Court seem to hold that such a provision is an essential part of the contract; that it can not be waived in any other way than that approved by the policy, so that there may be no question, no dispute, nothing to be proved by oral testimony, no alleged verbal statements to be met upon this question of waiver, which it is provided shall be shown only in writing. It is said that the time had only gone a day or two beyond the time provided for in the policy. That is true; but, if the condition is to apply at all, it must apply in the words of the policy — sixty days — and if sixty-one days might be approved, then seventy days might be and it would be difficult to draw the line.

Merrick & Jones, Doyle & Lewis and J. W. Schaufelberger, for plaintiff in error.

J. L. Lincoln and O. B. Snider, for defendant in error.

There is no statutory provision on this question, no provision that if the company has not been prejudiced by the failure of the insured to transmit a sworn statement of loss within the time that this shall not be a bar or forfeit the policy. A very full opinion was delivered by the trial judge (Judge Morris) in deciding this question, in which he has gathered many authorities —many more than we have cited — which opinion will be found in Nisi Prius Reports—N. S., Vol. 2, p. 21. We are unable to see how, under these decisions to which I have referred, he could have decided the question otherwise. As was said by Judge Morris, we sympathize with Mr. Billings in his loss, but it is our duty to follow the law as we understand it to be.

The judgment of the court of common pleas is affix'med.

Parker, J.

I find myself unable to bring my mind into agreement with the decision of a majority of this court in this case. I do not believe that the rule which has been laid down here by them will be conducive to the attainment of the ends of justice. Neither do I think that it is in harmony with the expressions of our Supreme Court upon the subject, unless, perhaps some of the language of Judge Davis in the opinion in Travelers’ Ins. Co. v. Myers, 62 O. S., 529, referred to by Judge Hull; and I am of the opinion that more weight is given by my colleagues to certain expressions of Judge Davis and to certain facts in that ease, and less weight to others, than should be given them.

If it were possible for this general agent, by his conduct, to waive the formal proofs of loss, then we are agreed that there was testimony tending to show such a waiver. Unless the whole matter is concluded by this provision of the policy, as to the proofs of loss so that no consideration may be given to such evidence, the case should have gone to the jury. In looking into the facts of the case we find that the evidence of waiver was not very strong; but there was some oral evidence — enough so that if it could be given any consideration the case should have gone to the jury. My associates have, very properly, met the question squarely; they have not undertaken to avoid it by laying any stress upon the fact that a strong case of waiver was not made out; for they appreciate, as we all must, that if this rule is to be laid down and followed, it must be applied where there is strong oral evidence of waiver as well as where such evidence of waiver is slight. I can not see how the' courts can avoid following it, if it is established as a rule of law, even where the conduct of the agent — which ordinarily would amount to an estoppel .in pais — is so pronounced as that to not apply the doctrine of estoppel would operate as a gross fraud upon the insured. For instance, a general agent may come upon the ground — even the president of the company, according to the claims of counsel for the insurance company here — and see the ashes of the fire, be satisfied that á fire has occurred; investigate the evidences of the loss, and be satisfied that the loss claimed has occurred, and that the loss is great enough so that the company is liable, if at all, for the whole amount of insurance; he may be satisfied that the loss is entirely honest so far as the insured is concerned,; that there is no valid reason on moral or legal grounds for resisting payment of the loss under tike policy; he may say so .to the insured; he may say so to him, ‘ ‘ It is not worth while to make out proofs of loss in this ease; it is perfectly clear that you are entitled to your money”; he might lull the insured into security by such conduct and declarations and keep it np until the very last hour of the sixty days, and then turn his back upon him and snap his fingers at him and say, “We will not pay you because you have not made formal proofs of loss.” Now that, as I view it, might result from establishing this rule; it could be used in that unfair way by an insurance company; and I think it is not out of place to say that the experience of business men is such as to justify the suspicion, at least, that there are some insurance companies doing business in the country that would be glad to take unfair advantage of such a rule; and therefore I say that I do not believe that ■the adoption of such a rule would be conducive to the attainment of the ends of justice.

I agree with my associates that under the authorities, even in Ohio, a denial of liability on other grounds than that of lack of proofs of loss, by the general agent of an insurance company, amounts to a waiver of proofs of loss. I understand that that is distinctly held in the case of The Enterprise Ins. Co. v. Parisot, 35 O. S., 35, and though we have found by experience that it is not safe to place imuidh! reliance upon unreported cases, or upon the deductions of counsel, or of publishers of unofficial reports thereof, as to what has been decided by the courts, yet it seems from the report of the case, Ohio Farmers’ Ins. Co. v. Danison, 1 O. S. C. D., 653 (38 Bulletin, 163,) a case not reported by authority of the Supreme Court, but reported by the Bulletin upon its own responsibility, that the same thing was held there, and held, as I understand it, because of the denial of liability on some other ground, before proofs of loss were due; the company through its general agent having said to the insured, in effect, “It would be idle and useless for you to make up \a proof of loss in this case; we will not pay the policy anyway.” But, if that is still the law, what becomes of the provision in the policy that the proofs of loss can not be waived exeept by agreement endorsed upon the policy? Such denial of liability of itself amounts to a waiver by conduct of proofs of loss. If there is to be any exception to or qualification of this provision of the policy, why not 'an exception in a case such as I have instanced, where the insured is given to understand up to the very last moment that the right to recover will not be questioned and then is disappointed when it is too late to correct the matter ?

The ease of Travelers’ Ins. Co. v. Myers, supra, is, it seems to me, very different from this, and does not amount to a precedent to be followed here; and for my part, in the establishment of such a rule as this, I am unwilling to go one step in advance of what the Supreme Court has distinctly held. The case last referred to was a ease of insurance by an employer against liability and loss on account of injuries which might be sustained by employes. lit appears that an accident happened to an employe and that no notice of the fact 'was conveyed to the comp'any for some nine months after the accident occurred, whereas the policy required that ‘ ‘ Immediate written notice shall be given this company of any accident and of all alleged injuries, together with copies of all statements made 'by employes, and all other information in possession or knowledge of the insured in any way relating to such accident or liability therefor.” And Judge Davis points out why it is material in a case of that kind that the insurance company should have this information at the earliest possible moment, so that it mia.y investigate the matter before it has faded from the miinds of the witnesses, before the aspect of the whole matter is chiamged, -while the insured is still suffering from his injury or accident, so that it may ascertain the extent of his injury, and especially so that it may ascertain whether or not there i-s a liability. Myers & Co. undertook to excuse themselves from furnishing this information on the ground that the local soliciting -agent had advised them against doing it; had advised them to keep silent; had said to them that if they stirred the matter up the injured man might 'conceive that he had a cause of action and bring a suit against them, and that he might not do so if they kept still and allowed the matter to blow over.

In the course of his opinion Judge Davis emphasizes the fact that the agent was merely the soliciting agent, and he emphasizes the fact that what he is saying is applicable to that particular form of insurance. It seems to me that he carefully seeks to avoid having such a conclusion drawn from his utterances as is .drawn, therefrom by my associates. He endeavors to confine what he says to the particular kind of insurance under consideration there. What he, or the court, may have said if this had been done by a general agent, we can only surmise. What the court may have said if some general officer of the company had been upon the ground, had seen -the accident, investigated all the facts, had become satisfied that there was a liability and had said so — had said, “You need not furnish the information, we are already fully informed,” we can only surmise. It can hardly be inferred that under circumstances like those the court would have said that the company might still insist upon the formal evidence required under the written terms of the policy. But that was not a fire insurance case to begin with. Much of what the learned judge says with reference to the materiality of these proofs, to put the insurance company in a fair position to protect itself, it seems to me, has no application to fire insurance generally, and has no application to* a, case where a fire insurance company had become fully satisfied as to the facts, arad has so declared, without the formal proofs being presented. It appears to me that the conclusions of my associates are in opposition to a rule that has been well established by the courts and recognized by the leading text-writers, i. that a provision like the one here relied upon shall not be applied to stipulations touching acts to be performed after loss. This rule, and the doctrine of estoppel in pais as applied to this subject, are found in the books running at times in parallel lines and at times converging, and I shall read some authorities applicable to both phases of the subject.

I will read first a few paragraphs from Bishop on Contracts. Taking up in this small book the whole subject of contracts, of course Mr. Bishop was obliged to treat these principles with great brevity, but, under the head of Waiver, at page 308, Sections 790 and 791, he has this to say, in part:

“Waiver, equally wlith its counterpart, election, pervades nearly or absolutely every department of the law and judicial practice, civil and criminal. * * *

‘ ‘ The doctrine rests on one, or another, or on all in comparison, of the following three principles, as the special facts and nature of the particular case indicates, namely the principle of contract by mutual consent of the wills, the principle of contract created by law, and the principle of estoppel.”

Then going to Section 796:

“The principle on which, in various circumstances, a performance in time or manner differing from the stipulations, which are waived, is accorded the same effect as a literal performance, is evidently that of estoppel. A party who, standing by, has concurred in and accepted what the other did in fulfillment, is not in a position to deny that the contract has been fulfilled. To illustrate—

“A policy of insurance specifies the time and manner of notifying the insurer of a loss, and proving it. But if, after the loss, the proper officer of the insurance company, instead of standing upon his right to have such notification and proof, goes upon the ground and' agrees with the insured as to the valuation, the transaction constitutes a waiver, by the company, of the steps .set down in the policy. And so does anything else of a similar sort. If, where the insurer has thus waived the steps, leaving the insured to believe them not required, the former could insist on being released from payment because they were not taken, he would have misled the latter to his great detriment— exactly what the doctrine of equitable estoppel was introduced into the law to prevent. ’ ’

Now independently of any other consideration, and looking upon this simply as a question of estoppel, a ease where the law says “You shall be held to have waived, and shall not be heard to deny that you have waived, because of your conduct in the premises,” it seems to me that it would be against public policy, and that therefore it would not be competent or permissable, for an insurance company to provide in its policies that it will not be bound by the equitable' rules of estoppel to say, “We will not be affected by anything our general officers or general agents may do that might operate upon us as an estoppel in pais.” In any judgment stronger reasons may be adduced for holding such a provision void because opposed to public policy than those suppoi’ting the doctrine that a provision in .a contract of a common carrier that it shall not be liable for losses occurring through its own negligence, are invalid. While the company may stipulate that it will not be bound by any agreement unless it is reduced to writing, such stipulation ¡should be qualified to the extent required to give full effect to the equitable doctrine of estoppel in pais. Without opportunity to search the books for authority in support of this doctrine, enough has been found to show that it is not without support.

In 1 Joyce on Insurance, Section 579, we read:

“It is held that a condition in the policy which conflicts directly with a settled rule of law will not be allowed to bind the assured, although he accept the policy, unless it appears that his attention was specially called thereto.”

The reference of authority for this statement appears to be Norman Pitney v. Insurance Company, 61 Barb. (N. Y.), 335, and from the opinion in that case we extract the following:

“The defendant further resisted the pjaintiff’s right to recover, upon the ground that the preliminary proofs of loss were not as complete as the policy required. In the conditions of insurance it was provided that no act or omission of the company, or any of its officers or agents, should be deemed a waiver .of a full and strict compliance with the requirements made concerning such proofs, except it be by a waiver in express terms, in writing, signed by the president or secretary of the company. This provision is directly in conflict with the settled rules of law established for the government of this class of cases. And while there is no doubt but that a party may renounce the benefit of settled legal rules existing in his favor, yet before he should be held to have done so, something clearly evincing that to have been his purpose should be required to be affirmatively or positively shown. The acceptance of a policy of insurance containing a clause declaring that no act or omission of the insurers, their officers or agente, shall be deemed a waiver of compliance with requirements as to preliminary proofs of loss, unless it be by a waiver, in express terms, in writing, signed, etc., to which there is no evidence that the attention of the insured was ever in any manner directed, should never be permitted to produce such a result. The policy of the law stands directly in the way of allowing persons to be entrapped into the implied surrender of their well established legal rights by the success of any such ingenious device. If it should be allowed to prevail, the insurer would be secured a privilege which could be so used as to defeat all its undertakings, and legally protect a career of fraud never yet sanctioned by either law or good morals.

“But in this ease the insured, in the preliminary proofs furnished, expressly offered to supply ‘any other information that might be required,’ on call. Notwithstanding the provision that the waiver of diefects in the proofs must be in writing, it was still in the power of the company to waive that requirement. And by not responding to this offer while the defects could have been corrected and supplied, it should be held to have made that waiver. For good faith, as well as every consideration of fair dealing, required it to specify the defects in the proofs when they were.accompanied with this offer, if the company did not intend to wáive any further act in that respect, on the part of the insured (O’Neal v. Buffalo Fire Ins. Co., 3 N. Y., 122; Post v. Aetna Ins. Co., 43 Barb., 352). The objections to these proofs came too late, and were properly overruled at the trial. ’ ’

An insurance company would not be permitted to conduct themselves in such a way as to defraud the insured and then bring forward this provision in the policy to shield itself from the legitimate results.

■I read from May on Insurance, 3d Edition, Section 473a, published in 1891:

“A clause to the effect that no act of the company, except an express written declaration, shall waive the requirements in regard to proofs, will not prevent the company from estopping itself, by act in pais. So far as the clause is intended to have such effect it is void, for a man can not contract not to make an ■agreement that the law allows him to make with the covenantee. A provision in the policy that no condition shall be waived or annulled except by indorsement upon it, will not prevent the waiver of proofs of loss, if the insurer without objecting to their absence joins in proceedings for adjustment. In spite of such a condition the agent may have authority to orally waive proof of bss, and the question should go to the jury. Such a provision is held not to refer to stipulations to be performed after loss, such ■as giving notice and proof.”

I also read a pairt of Section 311, under the head, “Waiver; Stipulation against; Limitation <of Agent’s Authority”:

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

Now Judge Davis says, in the course of his opinion before mentioned, that there is a line of decisions to this effect. A great many decisions to this effect are cited under the sections that I have read from May on Insurance. Others are cited by counsel for plaintiff in error. I can not attempt to refer to or read from them without extending this opinion to too great length, but it seems to me that they lay down and establish a general rule, and that the few decisions cited from Vermont, Michigan and New York, that seem to adopt a different rule, are singular and out of line with the current of authorities; and while Judge Davis has expressed some satisfaction with these decisions, I do not understand that he attempted to adopt them on behalf of our Supreme Court to the full extent that they go. I understand that a fair way of considering what he said and the use he has made of them is to say that, in. so far as they are necessary to sustain Ms opinion in this ciase, he adopts them; and so far as they are necessary to sustain the opinion of the court in that case, we need not combat them, for that was a case of a mere soliciting agent, and of a different form of insurance and a different state of facts. In the case of Ohio Farmers’ Insurance Co. v. Wilson, 70 O. S., 362, Judge Davis lays down a rule for interpreting decisions that may well be applied to his opinion in Travelers’ Ins. Co. v. Myers, supra, when he says, in substance, that it is the syllabus alone for which the concurring judges are responsible, land the syllabus must be interpreted in the light of the particular facts and circumstances of the ease.

There is one authority containing language that seems to me to be very appropriate here. It is the case of McNally v. Insurance Co., 137 N. Y., 389. I will read from piage 398:

“In determining the liability of the defendant it is entitled to the benefit of its contract fairly construed and can stand upon all of its stipulations. But when its liability has become fixed by the capital fact of a loss, within the range of the responsibility assumed in the contract, courts are reluctant to deprive the insured of the benefit of that liability by any narrow or technical construction of the conditions and stipulations which prescribe the- formal requisites by means of which this accrued right is to be made available for his indemnification. Tf, in this ease, a right of action accrued to the plaintiff, by reason of the destruction of the property by fire on the 7th of June, 1885, a liberal and reasonable construction of the stipulations of the contract which prescribe the formal acts on the part of the insured necessary to the recovery of the loss, is sanctioned and required by the rules of law.”

And there are a large number of cases here cited. Obviously there is a great difference between the provisions in the contract which have reference to risks assumed by the insurer, which are put in for the protection of the insurer so that the risk may not be increased without its knowledge, so that it may know and be advised all along as to the extent of its undertaking, so {hat there may not be binding oral stipulations upon' that subject between the agents and the insured, and such provisions as apply to measures to be taken after the liability is fixed, after the fire has occurred. To the performance of these conditions subsequent, these things that are to be done in the way of furnishing the evidence of the loss, it seems to me that the authorities require that very different rules should be applied; and that the courts -have almost universally applied to these conditions subsequent rules that are calculated to preserve to the insured the right that has ripened into a just claim, to pecuniary indemnification, and that they miay continue to do so without doing any injustice to the insurer whose liability has become fixed by the occurrence of the loss.


source: Caselaw Access Project

license: Public Domain

text:
    CONSTRUCTION OF MUTUAL BENEFIT SOCIETY CERTIFICATE.
    [Circuit Court of Summit County.]
    The Chevaliers v. Marvin Shearer.
    Decided, May, 1905.

      Beneficial Associations — Certificate, Constitution, etc., Constitute Contract — Between Members ancl Association — Member not Entitled to Share in Benefit Fund for Permanent Loss of Hand, When— Trustees of Association may Adopt Rules Concerning Conduct of Business.

    1. The certificate, constitution, rules and regulations and the by-laws of a beneficial association constitute the contract between the association and its members.
    2. When a certificate, issued by a beneficial association to one of its members, provided that if the holder lose one of his hands by accident, he shall be paid one-fourth the face value of the policy from the benefit fund, and that “this certificate is issued subject to, and to be construed and controlled by.the constitution, laws, ' rules and regulations of the order,” the holder thereof is not entitled to recover for a permanent loss of one of his hands unless it be amputated at or above the wrist, where the constitution provides for payment only in such case, and this notwithstanding the holder had no actual knowledge of such latter provision.
    3. The first trustees of a beneficial association have power to adopt a provision which concerns the conduct of its business, such as providing that the members shall not be entitled to share in the benefit fund for the loss of a hand, unless amputation at or above the wrist follows the injury.
    Winch, J.; Marvin, J., and Henry, J., concur.
   Tlie defendant in error brought his action against the plaintiff! in error, which is a beneficial association incorporated under the laws of Ohio, to recover for the loss of a hand under a certificate issued to him by the association, plaintiff in error, of which he was a member, in which certificate it is provided:

“If the said Marvin Shearer, the holder hereof, by accident, lose one hand, * * * he shall be paid one-fourth of the face hereof, # * * said amount being paid from the benefit fund of the order.”

The case was tried upon an agreed statement of facts, from which it appears that by accident the plaintiff was injured about the middle of May, 1901; “that as a result of said injuries his right arm has been permanently disabled, the full use and service thereof having been practically destroyed, but neither said arm nor hand has been amputated. ’ ’

The certificate sued upon contains the following provision:

“This certificate is issued subject to, and to be construed and controlled by, the constitution, laws, rules and regulations of the order. ’ ’

Attached to the agreed statement of facts, and referred to in it as Exhibit A, is a pamphlet entitled: “Constitution, rules and regulations of the supreme council, The Chevaliers, Akron, Ohio, governing grand councils and subordinate councils” which the statement of facts says “is the constitution, by-laws, rules and regulations used by said order, enacted by the said association. ’ ’

Section 53 of said constitution reads as follows:

‘ ‘ In case the holder of a beneficial certificate shall by accident lose one hand by amputation at or above the wrist, or one foot at the ankle, and in ease of the permanent loss or total loss of sight of one eye, he shall receive from the benefit fund of the order one-fourth of the face of the certificate. ’ ’

Plaintiff raises, the question whether these rules and regulations were lawfully adopted by the order, which we shall consider later, first taking up the contention of defendant that because plaintiff did not “by accident lose one hand by amputation at or above the wrist,” as provided in Section 53, he is not entitled to recover.

That in a beneficial association the certificate, constitution, rules and regulations and by-laws of the order constitute the contract between the member and the association has been held frequently. In this, ease the express terms of the certificate make the constitution, laws, rules and regulations part of the contract. But thte certificate and the constitution, laws, rules • and regulations do not agree in the provisions relating to the loss of a hand. The certificate says, “by accident, lose one hand.” The constitution, laws, rules and regulations say: ‘‘By accident lose one 'hand by amputation at or above the wrist.” Manifestly plaintiff below has not been injured and is not entitled to recover as provided in the constitution, laws, rules and regulations. But which provision controls ? The certificate says it is issued subject to, and to be construed and controlled by, the constitution, laws, rules and regulations. We think that settles the question. Plaintiff must bring himself within the provisions of said Section 53, and having failed to do so is not entitled to recover.

But plaintiff claims that Section 53 was not lawfully adopted by the association and that he is not bound by it. We think the admission in the agreed statement of facts, that Exhibit A ‘‘is the constitution, by-laws, rules 'and regulations used by said order, enacted by the said association,” should preclude plaintiff below from raising this question, but we have examined into the facts stated regarding its enactment.

It appears that the first meeting for the purpose of effecting an organization was held at Akron, November 30, 1900; at that meeting a board of trustees was chosen and a resolution passed that articles of incorporation be filed in Columbus. This was pursuant to Section 3631-17, Revised Statutes, which further provides that the certificate filed as aforesaid shall set forth (e) the number of trustees, directors or similar officers and their names, who shall manage the concerns of the corporation for the first year, or until the ensuing annual meeting.

February 4, 1901, a meeting of the trustees was held, and they adopted the constitution, laws, rules and regulations referred to.

We take it that in Ohio a corporation not for profit is governed somewhat as a corporation for profit is; the fundamental law or constitution is adopted by the members, who elect trustees; the trustees adopt by-laws for their own government in the management of the business of the association. By the statute just quoted the trustees of fraternal beneficial associations like the defendant for the first year are entrusted with the management of the concerns of the corporation. Whether the trustees had a right to adopt a constituir u providing, for instance, how many trustees there should be — a fundamental law— is doubtful, but that they had a right to adopt Section 53, which concerns only the conduct of the business of the association, we have no doubt.

Dayton A. Doyle, for plaintiff in error.

Young & Wanamalcer, for defendant in error.

Plaintiff was a charter member of the defendant association; a manuscript copy of the said constitution, laws, rules and regulations was on file in the office of the'association from February 4, 1901; plaintiff’s application for a benefit certificate is dated January 11, 1901; and the certificate was delivered and issued to him February 7, 1901; he was injured on March 15, 1901; and although he never saw a copy of said by-laws until after April 7, 1901, we hold that he is bound by said Section 53 and that the same is a part of his contract for benefits.

The court of common pleas having come to a contrary conclusion, its judgment is reversed.


text:
    CONDUCTOR’S REPORTS AS EVIDENCE.
    [Circuit Court of Hamilton County.]
    In the Matter of the Application of J. H. Schoepf for Writ of Habeas Corpus, Ex Parte.

    Decided, July 1, 1905.

      Depositions — Witness Contumacious, When — Must Answer and Produce Papers — Questions as to Competency and Relevancy — Must Be Left for the Court — And are not a Basis for Refusal to Respond, Unless — Papers and Information Exclusively for the Defense — Habeas Corpus — Rotary Public.

    A witness called to give his deposition before a notary, public must respond to questions asked and produce papers or oooks called for, unless it clearly appear that by so doing he would be injured in his business or personally, or that the questions are frivolous, or that the information was procured or the papers called for were prepared exclusively for purposes of defense in an action by the party for whose benefit the deposition is being taken.

      Swing, J.; Jelke, J., and Giffen, J., concur.

       Affirming Ex Parte J. H. Schoepf, 3 N. P.—N. S., 93.

   Josephine Pace brought an action in the Court of Common Pleas of Hamilton.County against the Cincinnati Traction Company. While this action was pending she sought to take the deposition of J. H. Schoepf, an officer of said defendant company, before Charles E. Tenney, a notary public in and for said county. The witness appeared and was sworn, and was asked to give the name of the conductor in charge of the ear on which Mrs. Pace was injured. He ivas also asked whether he knew the name of the conductor of the same car; he was also asked whether there were any persons on the car other than the conductor and the motorman; he was also -asked whether there were any persons prsent at the time of the accident other than the conductor, the motorman, apd the plaintiff; he was also asked whether he had in his possession any books, letters, or other papers showing that there was present at the time of the accident, other than the plaintiff, the motorman, and the conductor, showing the names of the persons, if there were any such; he was also asked who was the superintendent of that portion of the line on which the accident occurred at the time of the accident.

All these .questions by direction of his counsel he refused to answer, and thereupon the notary ordered him to answer, and the witness refusing, the notary ordered him committed as for contempt.

This action was brought in the court of common pleas on habeas corpus for the discharge of Mr. Schoepf.

On the trial of the case in the court of common pleas, that court refused to discharge the prisoner and remanded him to the custody of the sheriff of Hamilton county until such lime as he shall answer the questions, who was the division superintendent in May, 1902, of the division to which the College Hill-Main street line belonged, and until he produced the reports which he had been asked to bring; to all of which the' prisoner excepted.

The first proposition of the syllabus in the case of DeCamp v. Archibald, 50 O. S., 618, is as follows:

“Where the question propounded involves no question of privilege on the part of the witness, it is his duty to answer, if ordered by the notary to do so. The question of its competency is a matter for the determination of the court on the trial of the action in which the evidence is taken; and if he refuses to do so, when ordered, he may be committed as a contumacious witness.”

The syllabus in the case of Ex Parte Malcolm, Jennings, 60 O. S., page 319, is as follows:

“A witness whose deposition is being taken before an officer may refuse to testify to facts not relevant to the issues in the case in which the deposition is to be read, if the disclosure of such irrelevant facts, would be injurious to the business of the witness ; and, if imprisoned by the officer for such refusal; he may be discharged on habeas corpus.”

The second proposition of the syllabus in Re Julian S. Rauh, 65 O. S., 128, is as follows:

“A subpoena issued by a notary public for a witness, to attend and testify in a deposition before the notary public may contain a clause directing the witness to bring with him any book, writing or other things under his control, which he may be compelled to produce as evidence, and for disobedience of such a subpoena the notary public has power to punish the witness for contempt, by imprisonment. ’ ’

It is not claimed in this case that the questions asked of the witness would tend in any way to injure him in his business or personally; neither is it claimed that the questions were frivolous. We think it was not clearly shown that the papers asked of the witness to be produced were made exclusively for the purpose of defense in the action against the company by Mrs. Pace. It probably is true that information received and papers prepared by a party or his agent in preparation for the suit should not be compelled to be given over to the opposite party, as it would seem that this would be an abuse of the power conferred by the statute to take depositions. Whether the questions are relevant or competent, can not be decided by the attorney or officer taking the deposition; such matters can only be passed upon by the court when the case is on trial; otherwise, the very purpose of the statute in authorizing the taking of depositions would be defeated.

Kittredge & Wilby, for plaintiff in error.

O. S. Bryant and C. B. Wilby, contra.

The notary public was right in ordering the witness to answer the questions and produce the reports called for.


text:
    PROMISSORY NOTE AND ACTION THEREON.
    [Circuit Court of Huron County.]
    W. L. Minzey et al v. Marcy Manufacturing Co.
    Decided, 1903.

      Promissory Note — Agreement to Pay in Labor — Suit on Note not Premature, When — Charge of Court — Evidence on Issue not in Pleadings — Errors not Affirmatively Appearing — Burden of Proof ■ — Corporate Existence not Raised by Q-eneral Denial.

      1. ' The execution and delivery of a promissory note to a creditor, who as a part of the same transaction enters into a written contract to employ the maker until the note becomes due six months thereafter, and for a further period of six months if the note is not paid at maturity, the two papers will be construed as a contract whereby the maker is to be employed until enabled to pay the note with his wages, and that his wages shall be applied on the note, and not that he shall be permitted to draw his wages as they become due and pay the note at maturity.
    2. Where the maker of the note is discharged for justifiable cause, the payee is released from his obligation to receive payment in services, or to grant an extension of the note, and a suit on the note is not prematurely brought when begun within six months after maturity.
    3. Where an issue is overlooked during the delivery of the charge to the jury, which is concluded just before the noon recess, it is not giving special prominence to that issue for the court to instruct the jury regarding it upon reconvening after the recess and without repeating the whole charge.

      i. A reviewing court will not regard an objection to the hearing and submission of evidence to the jury on an issue not made in the pleadings, where the objection was first made in the petition in error; nor will it assume that there was error in the matter of the opening and close to the jury, where such error does not affirmatively appear from the record; nor a claim of error in the matte? of burden of proof, where it does not appear that the party objecting was prejudiced thereby.
    5. The fact that the defendant was examined on a matter not at issue is not ground for a reversal of the judgment, where his answers did not prejudice him before the jury; nor can he object to the range taken in cross-examining a witness on an immaterial matter, when the witness was first offered and examined on the same matter by the objecting party.
    6. A general denial does not put in issue the incorporation of a plaintiff corporation. The incorporation need not be established by proof under such a pleading, and the issue can only be raised by a special pleading.
    Parker, J.; Hull, J., and Haynes, J., concur.
    Error to the Court of Common P.’e s of lluro i County.
   The action in the court below was by the Marcy Manufacturing Company against W. L. Minzey and Nancy J. Minzey upon a promissory note. The note is dated July 17, 1899, and is for $241.05, payable seven months after díte, with interest from date at the rate of six per cent, per annum, payable annually. W. L. Minzey, by his ans.ve", admits th't he exe-uted and delivered to the plaintiff the promissory note described in the petition, but denies each and every other allegation in the petition not expressly admitted.

One of the averments in the petition on behalf of the plaintiff is that it is a corporation duly organized and existing under the laws of the state of Indiana.

Nancy Minzey, who is the mother of W. L. Minzey and who was surety for him upon this note, in her answer admits the execution of the promissory note described in the petition, but she denies each and every other allegation set forth in the petition not expressly admitted. It is said that she does not, therefore, admit the delivery of the note.

Each defendant in a separate answer then proceeds to aver facts relative'to another writing which they say was signed by the R. G-. Marcy Manufacturing Company, the plaintiff, at the time this note was given and which constituted a part of the same transaction and contract, and they attach to their answers a copy of that paper, which reads:

“Bellevue, 0., July 18, 3899.

“We do hereby agree to give W. L. Minzey work on the road and in our factory at two dollars per day and expenses until a note of $241.05, dated July 17, ’99, due in seven months, signed by himself and Mrs. Nancy J. Minzey, is paid, and we agree if this note is not paid when due to renew the balance for six months.

'The R. G-. Marcy Mfg. Co.,

“J. A. Ullman, Jr.”

They aver, with respect to the circumstances under which these papers were executed, that W. L. Minzey had been engaged in business at Bellevue as a dealer in pumps, tanks, windmills and windmill supplies generally, and that he had become embarrassed and involved financially so that he could not continue his business; that he had become indebted to the plaintiff and others, and that he turned over all of his property to his creditors about this time, turning over a part to the plaintiff upon his indebtedness to them; that he gave this note for the balance that was unsatisfied by the turning over of such property; that he was not willing to give a note, and especially that his mother was not willing to sign it as his surelty until the company had executed said paper in which they agreed to employ him upon the terms therein stated.

He avers, and his mother in her separate answer also avers, that the company employed him in pursuance of this- contract and kept him in their employ less than a month and then discharged him without legal cause. The company deny that they discharged -him without cause.

The cause was submitted to a jury, which returned a verdict in favor of the plaintiff below for the amount of the note and. interest, and W. L. Minzey and his mother, Nancy J. Minzey, prosecute error here. They aver and contend that there was error prejudical to them in the proceedings in the court below in the receiving and in the rejection of evidence, and in the charge of the court; and that the verdict is against the weight of the evidence.

The first matter occurring upon the trial of which they complain was with respect to the determination of where the burden of proof rested. It appears that after the case was stated to the jury, Mr. Vickery, attorney for the defendant below, said, “We admit the execution of the note and its delivery and we also claim that we have the burden of proof. ’ ’

“Court: The burden of proof is upon the plaintiff in this case.

“Mr. Vickery: We except to the íuling of the court in holding that the burden of the proof is on the plaintiff. ’ ’

That is all we find in the record upon the subject. The plaintiff then proceeded to introduce the note in evidence, also the certificate of incorporation of the company, and then put the general manager of the company upon the witness stand, who testified that the company was the owner of the note, and then it rested.

The complaint of the plaintiffs in error about this matter is that they were deprived of the opening and closing of the argument. • It is urged on behalf of the defendant in error that the decision of the court below as to where the burden of proof rested was correct. It is said that under the pleadings it did not devolve upon the plaintiff to introduce the note in evidence nor to prove the incorporation of the company. We hold that under a denial of that character (a general denial) the plaintiff below is not put upon its proof to establish its incorporation. It requires a special pleading to raise that question. It is not very apparent at least that the plaintiff below was called upon to go ahead and prove anything under these pleadings, but we are not required to go into that question very carefully, or at all, for the reason that it does not appear that it was prejudicial to the defendant below to have the plaintiff below go ahead and make its proof. The thing they complain of is, that the plaintiff below was permitted to go ahead in the argument, and was permitted to closé the argument; but that fact does not appear in this record.

• It does not appear that at the close of the evidence this matter was brought to the attention of the court in any way, or that counsel' for defendant desired to go ahead; nor does it appear (which is more essential, perhaps) that counsel for the defendant below did not go ahead in the making of the argument, and did not close the argument. All we have upon the subject is, after the testimony is all set out* “and this was all the evidence offered by either party in the cause and thereupon the case proceeded to argument, after which the court charged the jury as follows.”

The errors that may be taken advantage of are such as appear affirmatively upon the record, and we can not assume that the court committed the error of permitting counsel for the plaintiff below to open and close the argument. Furthermore, in looking at the motion for a new trial we find that there is nothing stated therein upon that subject.. Nearly all of the grounds for a new trial that are provided by law are set forth here, but the ground that would cover this is not set forth.

It is also contended that this action was brought before the note had matured, or before the cause of action had matured, because of the provision in the other contract (which the evidence shows was executed at tbe satíie time, as part of the same contract), that if the note was not paid in full when due it was to be renewed for six months. It is said that it was not paid in full when due and that therefore they became entitled to a renewal for six months, which would carry it over to August, 1902, whereas the action was commenced in March, 1902. But whether that objection is well taken depends upon the question whether the verdict, involving a finding by the jury, that the discharge of the defendant was justifiable, is to stand; for if the discharge was justifiable the conditions requiring an extension never arose, and it follows that the action was not brought prematurely. In other words, the issues became narrowed down to the single one of whether the plaintiff below was justified in discharging Minzey from their employment. If they were justified in discharging him from their employment, then manifestly they were released from any further obligation under this contract of July 18, to employ him or to receive payment in services as therein provided* or to grant an extension, as therein provided, and it might then insist upon compliance with the exact terms of the promissory note.

It is our conclusion that the verdict of the jury upon this issue is not against the weight of the evidence. .

It is contended by the defendant in error that Mr. Minzey was unskillful, careless and unsatisfactory as an employe; that his work was not well done; that it was not as well done as he might have done it had he tried, and that his course as an employe was unsatisfactory and a damage to them; therefore they discharged him. And they also insist that in keeping an account of his expenses which they were to pay and which they did pay, he put in bills for expenses that he did not incur (in one case especially, the sum of $7.50), and that they were justified in discharging him on account of his bad work and on account of his dishonesty.

That he was dishonest in presenting bills for his expenses is not charged in the pleadings filed on behalf of defendant in error, . That is not set forth as a ground for his discharge. If it had been insisted upon'on his behalf, perhaps that could not have been proven upon the trial or submitted to the jury without an amendment to the pleadings.

But no objection was made to the introduction of evidence on this point (except upon the examination of Mr. Minzey, which will be noticed presently), and no objection was made to the submission of this issue to the jury (except as to the manner and time of such submission, also to be noticed presently) , and it’ is now too late to make such objection or to complain for the first time.

Some objection was made when inquiry was made of Mr. Minzey himself, whether he had not put in his bill for expenses that he had not incurred, but he answered, and his answer, in our opinion, was not prejudicial to him, consequently the inquiry could not have been prejudicial. He answered that he put in his bills for all his expenses and for no more than the expenses that he had incurred. The inquiry was pursued, but the answers of Mr. Minzey in each instance were of a character that could not have prejudiced him before the jury. On the other hand, when inquiry was made of the witness who charged him with falsifying the amount of his account, no objection was made to Ms testifying; and when the court came to submit this issue to the jury, objection was not made to it on the ground that it was not an issue presented in the case, but objection was made solely upon the- ground that it was submitted a.t a time and in a manner which gave it undue prominence. The charge of the court having been completed and the jury having been excused for dinner and having come back from dinner, the court’s attention having been called to it, the court stated to the jury that he had overlooked a matter, and then proceeded to charge them upon this point. It can not be maintained that what the court said was improper or erroneous. But it is said that undue prominence was given to it. AYe do not see how the court could well have done otherwise, upon being apprised of this oversight, than to correct it in the way it did, and it seems to us that it was not necessary for the court to repeat the whole charge in order that this might be injected somewhere in such a way as to avoid directing the special attention of the jury to it; and we can not see that the jury, after retiring, must have given undue prominence or consideration to this subject. It was a prominent matter in the case; the real issue in the ease was as to the method in which the defendant, Minzey, had done his work, the way he had served his employer, both in the matter of work and in the matter of rendering his account; so it would be quite proper for the jury to give it much prominence and careful consideration.

It is said that on the trial the court erred in allowing the use, by the plaintiff below, of the property statement that had been made some time before the transaction in which 'these papers were executed, by the defendant, Minzey, to the plaintiff below. It is not apparent to us that that property statement was competent evidence. AYe think that its use amounted to the introduction of evidence upon an immaterial matter, and probably a matter prejudicial to the defendants below'. But when we come to consider the way it was brought in, we think the defendants in error ean not complain; we think they are responsible for the presentation of this immaterial issue. AYhen Mr. Minzey was upon the witness stand in his own behalf, he was inquired of by his counsel, Mr. Vickery, as to his condition in life at the time he entered into this contract.

“Q. At the time this note was given were you a married man? A. I was; yes, sir.

“Q. And how many members were there of your family?”

Mr. McKnight, on behalf of the plaintiff, objected to the question.

“Court: What do you claim for that?

“Mr. Vickery: It is a circumstance to go to this jury in determining the question whether the defendant, or rather the plaintiff here, has been put in any more serious position by the surrender of this property or by the failure to collect on this note, than they would have been if they had not received this property. ’ ’

The court said:

“Perhaps as to how many he had in his family is not important, but I think, under your view, that it may be competent to show that he was at that time the head of a family and that he had no homestead. If you wish to show those facts at the time of the making of this contract, you may do so, providing you couple with it some testimony that that fact was known-to the opposite party.”

Then the examination proceeds:

“What is the fact at the time of making this contract — were you a resident of Ohio? A. Yes, sir.

‘ ‘ Q. And were you a married man at the head of - a family ? A. Yes, sir.

“Q. You may tell the jury at that time whether or not you owned a homestead ? A. I did not; no, sir.

“Q. Where were you living at that time? A. I was living in Bellevue.

“Q. Whereabouts in Bellevue were you living? A. On Greenwood street or Greenland street — I forget the name.

“Q. Was your wife the owner of a homestead at that time? A. She was not; at the time this note was delivered, you say?

“Q. Yes, sir, at that time? A. She was not to the best of my recollection.

“Q. Do you know whether or not Mr. Ullman knew of your property, or what property you had, or' what property you didn’t have — your financial condition? A. ’I don’t know\”

The court below seemed to think that that would throw7 some light upon the issue, though we can not discover how it could; but the court admitted it on condition that the defendants below should establish that the plaintiff knew of these conditions. Thus far they had failed to show that the plaintiff knew anything about it. Thereupon the cross-examination of Minzey proceeds:

“At the time you entered into the original contract with the representative of the Marey Manufacturing Company, you owned a homestead then, didn’t you? A. May I inquire what you mean by ‘original contract’?

“Q. Yes, sir, this contract right here; just look at that and see if you didn’t sign that? (Witness shown paper). Look at the back of it there and see if you didn’t make a property statement there? A. At the time this paper was signed, I owned property, yes, sir.

“Q. That is your signature there at the bottom, isn’t it? A. Yes, sir.

“Q. And that is yoúr wife’s signature, isn’t it? A. To the best óf my knowledge it is, yes, sir.

“Mr. Vickery; I object to the introduction of this for the reason that it has nothing to do. with this contract.

‘ ‘ Court : It does not quite seem to me that the circumstances you are seeking to elicit throw any light upon the contract. I don’t quite see that it helps to show whether these two papers were one transaction, or whether they were separate. I think this is irrelevant. I do not think this would help the issues.

“Mr. McKnight: I now ask the court to permit the reading of this contract to the jury for the purpose of cross-examination of the witness on the stand upon it.

‘ ‘ Court : The request will be overruled for the present.

Mr. McKnight : I also ,ask the count to permit me to read the statement on the back o.f this contract to the jury for the purpose of cross-examining the witness so that I may intelligently cross-examine the witness on the stand in regard to it.

“Court: You may cross-examine him as to that. You may ask him whether he did not make such a statement. You may submit it to him and see. I will permit you to use that statement.

“Mr. Vickery: Wc except to thie ruling of the court in permitting the introduction of the property statement made in January of 1899.”

Jesse Vickery, for plaintiff in error.

C. A. Wilt and McKnight & Thomas, for defendant in error.

It is urged that because of this property statement having gone to the jury prejudice resulted to Minzey. As I said before, it seems to us that this whole, matter of the financial condition of Minzey was immaterial; but it was introduced in the first instance by him or on his behalf, and having presented that kind of immaterial matter, he can not complain now that he was cr.ossi-examined upon it, and that the 'Cross-examination took the range that it did.

It is said that there was .some error in the charge, in the construction the court put upon- this contract, but in looking at ■that, our view of the matter is that if the court erred at all (and we are not quite prepared to agree with the court in its construction of the contract), the error was not prejudicial to the plaintiff in error. We have very serious doubt whether the court was right in holding that Minzey had a right to draw his wages from time to time while remaining in the employment of the plaintiff below, and that he might also insist upon paying the note as it fell due according to its terms. We are- rather inclined to think that the two papers, when read together, amount to a contract that he was to be employed a sufficient length of time, at least, to enable him to discharge this indebtedness with his wages, and that his wages as earned should have been so applied. But the company did' not insist upon their being so applied. ITis wages that he earned were paid over to him, and we can see nothing in the view taken by the court that was at all prejudicial to Minzey, and we feel very confident in our own minds that the result reached was correct and just, and the judgment of the court of common’pleas will be affirmed.


text:
    KNOWLEDGE OF A DANGER. WHICH COULD HAVE BEEN AVOIDED.
    [Circuit Court of Summit County.]
    The City of Akron v. David Keister.
    Decided, April, 1905.

      Negligence — Unsafe Street Grossing — Of which Plaintiff Iliad Knowledge — And Gould have Avoided.

    Where a jury return special findings to the effect that the street crossing where the plaintiff was injured, while not manifestly unsafe, was nevertheless not safe, and the plaintiff knew of its condition, and could have avoided it but not easily, and the testimony supported these findings, a judgment in favor of the plaintiff will be reversed.
    Henry, J.; Marvin J., and Winch, J., concur.
    Error to the Court of Common Pleas of Summit County.
   This is a proceeding in error prosecuted by the City of Akron to reverse a .judgment for one thousand dollars recovered by David Keister, of Mogadore, at the October Term, 1904, of the Court of Common Pleas of Summit County, for injuries by him received on or about August 29th, 1900, in consequence of being Ihrown from his wagon while attempting to turn from East Market street into Adams street in the city of Akron.

The action below was begun September 7th, 1901, and three trials have been had. The first trial resulted in a disagreement of the jury. On the second trial plaintiff recovered a verdict and judgment for $1,500, which was reversed by this court, and the cause remanded for retrial. The third trial resulted in a verdict for plaintiff of $1,000, with answers by the jury to special interrogatories. Motions by the defendant below for judgment on these findings and for a new trial were -successively overruled. A bill of exceptions exhibiting all the evidence was perfected and a petition in error filed in - this court.

The street intersection where the accident occurred was in a torn up condition; the pavement had been taken up on that-side of East Market street and a row of ties laid down side by-side from tbe Adams street side to a point within the double tracks of the street railway which there occupies the middle of East Market street. These ties were intended and used foi> teams and vehicles to pass from either street to the other, across the unpaved portion of East Market street, until the repairs should be completed. It is claimed, however, that this row of ties was too narrow a passageway and that the city was negligent in maintaining the cross-over in an unsafe condition, whereby the wheels of vehicles driven there were liable to, and one of the hind wheels of plaintiff’s wagon did, in fact, drop down off the -ends of the ties to the ground below.

Plaintiff was a man about seventy years old, who had been used to driving since he was a boy. He and his grandson, ten years old, had twice driven over the ties on the day of the accidént, and were about to drive over them again when the accident occurred. On the first occasion they had a load of lumber, and, when about to turn from East Market into Adams street, they swung around toward the farther curb, in order to complete their turn before striking the row of ties. Proceeding thence up Adams street they unloaded their lumber, save two or three planks, which they left on the wagon as a bed, and returned the way they came. Later they again approached the ties with a heavy chest of tools across the plank. The plaintiff below sat on the chest and drove; his grandson was behind. The horse was steady; but as plaintiff below drove upon the ties, the wagon gave a sudden lurch and he was thrown off and badly injured. Neither the chest nor the boy fell off. It is not' perfectly clear from the evidence how the lurch was caused. The wagon was geared unusually 'long and the bed was, of course, less firm than when the entire load of lumber was upon it. The row of ties moreover was not quite level, there being a depression of the cross-over between the street railway and Adams street, and then a rise or up-grade into Adams street. It is suggested that the wagon in this condition lurched forward off the rails of the street car tracks, or entered this depression, or both, in a more sudden manner than it had before when the wagon was loaded, and that this either directly caused the accident or else caused a little shorter turn so that one of the hind wheels dropped to the ground.

In the view we take of the matter it is immaterial in what precise way the accident occurred, for certain of the jury’s findings are clear and decisive and sufficiently supported by ■the evidence. The first three questions, and answers thereto, by the jury, are as follows:

“1. Was the crossing formed by placing ties on Market street at Adams street, manifestly unsafe for driving over with vehicles ?

“Answer. No, but not safe.

“2. Was the condition of said crossing known to the plaintiff at the time when he attempted to cross and sustained the injuries of which he complains?

“Answer. Yes.

“3. Could the plaintiff easily have avoided this crossing?

‘ ‘ Answer. Could have avoided, _but not easily. ’ ’

The remaining findings are that plaintiff below was not negligent and that he did not assume the risk. The last is a pure conclusion of law and should not have been submitted to the jury. It can not in any degree neutralize the force of the second finding, which is to the effect that plaintiff knew the condition of the crossing when he attempted to pass over. It is immaterial whether its dangers were or were not manifest generally, if its condition was known to him. He had other means, though less easy of reaching his destination, but he chose rather, to drive. over this crossing, knowing its condition This is clearly the voluntary assumption of a known risk, such as would defeat a recovery under the circumstances of this case. In The Village of Conneaut v. Naef, 54 O. S., 529, it was held that one who goes voluntarily upon an accumulation of ice on a walk of a village can not maintain an action against such village for a personal injury resulting tO' him, if the source of danger is plainly visible. To the same effect are Schaefler v. The City of Sandusky, 33 O. S., 246; Cleveland v. Stofer, 33 Bull., 227. It is clearly implied, in Farmer v. Findlay Street Railway, 60 O. S., 36, that the same rule applies to the driving of teams and vehicles into dangerous places in the public streets of a municipality,

Clyde F. Berry and Scott D. Kenfield, for plaintiff in error.

I. H. Phelps and N. D. Tiihals, for defendant in error

An examination of the testimony shows that the jury could not properly have found otherwise than as they did as to the defendant in error’s knowledge of the condition of the crossing.

We hold, therefore, that this judgment is against the weight of the evidence and is contrary to law, and that the court erred in refusing to render judgment on the special findings for the defendant below. The judgment for the plaintiff below is accordingly reversed.

We can conceive of no useful purpose to be served by remanding this cause for a fourth trial, and, therefore, proceeding to render the judgment which the court of common pleas should have rendered, we enter judgment for the plaintiff in error.


text:
    VALUE OF SERVICES IN EFFECTING A LEASE.
    [Circuit Court of Hamilton County.]
    The Duhme Jewelry Company v. Levi P. Hazen.
    Decided, July 8, 1905.

      Agency — Value of Services — Rendered in Effecting a Lease — Tim& Consumed Only One Element of Value — Evidence—Incompetent Question — Rendered Harmless by an Answer Stating Facts — i Charge of Court.

    1. In fixing tlie value of services rendered, the time consumed in the performance of the service is only one of the elements to be considered.
    2. The opinion of the party performing the services is competent in a suit for recovery of their value, and where the defendant causes such opinion to be excluded, he can not afterward say that no evidence as to value has been submitted to the jury.
    3. Moreover, testimony as to the facts touching the character and extent of the services is. evidence of their value, independent of the opinion of the witnesses.
    4. A question which was incompetent for the reason that it called for a conclusion, is rendered harmless where the answer put the jury in possession of the facts upon which the witness based his opinion.
    5. A special charge, to the effect that the jury are not to consider the statement of plaintiff’s claim in his petition as evidence in the case, might have well have been given, but its mission coul'd not have misled the jury or prejudiced the rights of the defendant.
    Giffen, J.; Jelke, P. J., and Swing, J., concur.
   The original action was commenced to recover for services rendered in effecting a lease which involved a definite rental of $33,500, with a privilege of renewal, embracing a rental to the amount of $16,250.

Neither the pleadings nor the evidence warrant the conclusion that the plaintiff relied upon a promise to pay him the value of his time alone, but, on the contrary, he relied upon the promise to pay him the reasonable value of his services, time being only one of the elements of value of such services.

After proving the facts pertaining to the character and extent of the services which the plaintiff rendered, he offered his opinion of their value, but upon objection of counsel for the defendant, the court excluded it'and thereupon counsel for defendant requested the court to instruct the jury that if they find for the plaintiff, the verdict for the plaintiff shall be one cent, which charge the court refused to give, and defendant by its counsel then and there excepted.

We think the opinion as to the value -¿>f the services was competent, but that the defendant having caused the same to be rejected should not afterwards be permitted to say that no evidence of value was before the jury, and besides, independent of the opinion of witnesses, the facts touching the character and extent of the services were themselves evidence of their value and would require the jury to return a verdict for the plaintiff for substantial damages.

The following question in the deposition of Jacob A. Kohner was objected to by the defendant; the objection overruled, to which counsel for defendants excepted:

“In your opinion, as president of the McAlpin Company, and as the officer of that company who negotiated the leasing of these premises and who executed the lease from the Duhme Jewelry Company, is it your opinion that the leasing of the aforesaid premises was brought about by the efforts of Mr. ITazen and entirely through his efforts?”

Jones & James, for plaintiff in error.

O’Hara & Jordan, for defendant in error.

This called for a mere conclusion of the witness from the facts within his knowledge which were or ought to have been offered in evidence, and was therefore incompetent. But in view of the answer given: “Yes, fully through him, from the fact there was nobody else to negotiate with until the final drawing up of the lease at the attorney’s office,” it was not prejudicial for the reason that the jury was put in possession of the sole fact upon which the witness based his opinion.

The special charge that the jury are not to consider the statement of plaintiff’s claim in his petition as evidence in the case might well have been given, although we fail to see how its omission could mislead the jury or prejudice the rights of the defendant. The reason for its refusal assigned by counsel for defendant in error is unsound; it was not requested to be given before argument to the jury nor in writing, and hence Subdivision 5 of 5190, Revised Statutes, has no application.

The damages assessed appear to be not excessive and the judgment will be affirmed.