text:
    CONSTRUCTION OF REPUDIATED AGREEMENT TO PURCHASE STOCK.
    Circuit Court of Cuyahoga County.
    J. L. Wadsworth v. F. H. Edwards.
    Decided, October 29, 1906.

      Sale ancl Option to Ptirchase Distinguished.

    Where the owner of shares of stock enters into an agreement with another wherein that party agrees to take over the stock at a certain price on or before a certain date and the owner agrees that he will transfer the stock at any time before the date mentioned upon the tender of the amount specified, the transaction is an option to purchase and not a sale and the owner can not, upon the failure of the other to pay for and take the stock, maintain an action for the purchase price.

      (farr. Stearns <b Vhamberluvn, for plaintiff in error.

      C. ('. Wise, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand related as they stood below. The case originated in a .justice court and was appealed to the common pleas, where a jury trial was waived and judgment rendered for the plaintiff, but only in a nominal sum. This he alleges'was error, for his action being on a contract of sale, repudiated by the buyer, and for the purchase price of the goods sold, he. urges that he should have recovered all or nothing. We think he should have recovered nothing.

The contract was as follows:

“Cleveland, Ohio, Nov. 15, ’04.
“Agreement between F. II. Edwards of Cleveland, Ohio, as party of the first part, and J. L. Wadsworth, of the same place, party of the second part.
“Now by this agreement witnesseth, that party-of the first part hereby agrees to take over on or before the expiration of six months from date above mentioned, from the party of second part, a certain two shares of stock, known as certificate No. 23, same being for two shares of stock in the company known as the American Metallic Packing & Supply Co., of Cleveland, Ohio. The consideration for the same to be one hundred dollars each or a total of two hundred dollars.
1 ‘ It is also agreed that at any time prior to the time mentioned that if the party of first part shall tender the party of second part the sum mentioned ($200) that the two shares of stock shall be immediately transferred, and shall become the property of first party.
"Witness our signatures.
"Cleveland, Ohio, Nov. 15, 1904.
“F. H. Edwards.
"J. L. Wadsworth.”

The facts are embodied in an agreed statement which is set forth in the bill of exceptions as follows:

"In addition to the admission of the execution of the instrument set forth in plaintiff’s petition, the parties hereto admit that on the 15th day of May, 1905, being six months from date of the contract, the plaintiff called upon defendant and stated to the defendant that he had with him a certain certificate of stock No. 23, the same being the certificate named in the agreement set forth in plaintiff’s petition of the American Metallic Packing & Supply Company, and that he was willing and ready to perform all the conditions required by him in said agreement to be performed, and defendant refused to perform or do anything further with the contract.
"Defendant also admits that a short time previous to May 15, 1905, in conversation with the plaintiff he told him, the plaintiff, that he did not consider himself bound by the terms of this contract, and that when the date for its performance should come he would refuse to perform.
"The aforesaid stock before and up to the time suit was brought stood on the boobs of the company in the name of J. L. Wadsworth.”

From this statement and the pleadings it appears that the defendant did not avail himself of his option to buy said shares of stock pending the date of expiration of the contract period, but the plaintiff sought to accept and enforce his option to sell on that date. That the agreement was nothing else than a contract for reciprocal options is manifest from the fact that in the last paragraph Wadsworth’s agreement to sell at any time during the contract period is expressly conditioned upon Edwards’ tender of $200 and in the preceding paragraph Edwards’ agreement to buy at or before the end of the contract period is accompanied by no corresponding covenant by AVadsworth to sell. He might sell or not, as he chose, unless Edwards tendered the price. And Edwards might buy or not' as he chose, unless Wads-worth tendered the stock. Each option was the consideration supporting the other. To exercise either option required an afñrmativé voluntary act by the party accepting. To show such acceptance is not enough to plead and prove a readiness to fulfill and perform by the party accepting, or even an actual fulfillment and performance of "all things in the said contract to be by him fulfilled and performed.” The plaintiff here may have done all that, without accepting the option afforded him by the contract. But this is all the petition avers, or the agreed statement shows, was in fact done. No acceptance by the plaintiff of his option is either pleaded or proved.

If the obligation of the defendant to buy the said shares of stock had been absolute, without such acceptance, his repudiation of the contract would of course dispense with tender of the shares by the plaintiff as a basis for damages for the breach, though perhaps not as a basis for an action for the agreed price (Elsas v. Meyer & Co., 21 B., 346). But here the tender, however good it may have been, was insufficient without a notification by plaintiff to the defendant that he had elected to exercise his option to sell, or, what would be equivalent, a formal demand for the price agreed upon.

The petition and the proof here are therefore alike insufficient to sustain plaintiff’s action. We find no error in the record and the judgment below is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    SCHOOL DISTRICTS AND VILLAGE BOUNDARIES.
    Court of Appeals for Holmes County.
    Albert E. Cline v. Oath Martin et al.
    Decided, October Term, 1914.

      Schools — Erection of School Districts and Their Boundaries — Incorporation of a Village in Effect Malees the Included Territory a School District — Sections 4687 and 4681.
    A petition, signed by the requisite number of male citizen electors, having been filed in the proper probate court, praying that a special school district be created; and the fact being that the territory described in the petition embraces an entire incorporated village, together with other contiguous territory outside of such village; and it further appearing that such village never had been organized as a village school district by the election of a board of education therein:

      Held-. That by the creation of such village the territory within its limits was withdrawn from the operation of the statute providing for the establishment of special school districts, and that the probate court in the proceeding was without jurisdiction of the subject of the petition, and its order purporting to create a special school district composed in part of such village territory was inoperative and void.
    Grant, J. (sitting in place of Voorhees, J.) ; Shields, J., and Powell, J., concur.
   This cause is before us by appeal from the judgment of the court of common pleas. The facts necessary to an understanding of the issues involved are in substance these:

The village of Nashville became such by legal incorporation in 1881 and has so remained ever since. The territory included within its limits was taken from several townships. Nashville, as such, was never formally organized into a village school district by an election of a board of education, or by other visible exercise of whatever powers it may have possessed for that purpose, but the administration of its schools continued after its incorporation, as they had done before, under the auspices of the townships out of which the village was made up.

In May, 1913, a petition was filed in the probate court of this county, in due form of law, the object and prayer of which was the establishment of a special school district, to be composed of the territory included.within the village of Nashville and the territory then attached to it for school purposes, and also other contiguous territory, properly described. The petition was signed by the requisite number of persons and contained apt allegations necessary to bring it within the statute, the aid of which was invoked in the proceeding to grant the relief sought.

The probate court took jurisdiction of the petition, and thereupon such proceedings were had in the cause as resulted in granting the prayer of the petition and the establishment of the special school district asked for, if that court had the legal power to do what it undertook to do in the premises.

After the organization of the purported special school district, and assuming that the probate court had jurisdiction to entertain and prosecute the proceedings resulting in its establishment, an election was attempted to be held in a part of the territory embraced within its limits, the object of which was to cause bonds to be issued, the avails of which were to be used in the alleged special district. The result of this purported election was declared to be in favor of the bond issue in question. . .

Matters standing thus, the present action was begun in the court of common pleas.

The plaintiff is a tar-payer of the territory sought to be taxed and affected for payment of the bonds voted, and sues in that capacity.

The defendants are those who claim to be the members of the board of education of the purported special school district, and one of them, is the ostensible clerk of that body, and they are sued as such.

The prayer of the petition is that the defendant be perpetually enjoined from proceeding further in' the selling of the bonds claimed to have been authorized by the alleged election referred, to, upon the ground that the election was wholly irregular and void. It goes further than that, and asks that the so-called school authorities be permanently prohibited from raising any money by taxation, from expending any money as such board, and from doing any act or thing under a claim of right in their assumed official capacity, for the réason, as is said, that the probate court was without jurisdiction to act upon the petition for the creation of a special school district, and that its judgment and proceedings in that behalf were altogether null and conferred no right.

The jurisdiction which lies at the root of the existence of the special school district if it exists, being thus directly called in question, it is clear that if that contention prevails the entire proceeding in the probate court will have been void from the beginning, and the secondary question of the invalidity of the bond election will fall with it and therefore becomes relatively unimportant here.

We are therefore to address our consideration to this controlling issue in the case. It is somewhat complex and the solution of the matter is not without its difficulties. The case has been ably argued at the bar, and in the briefs of counsel the statutes and authorities deemed to be material have been marshaled with commendable industry and discrimination.

We have reached, with some diffidence, a conclusion in the ease which, while not in all respects free from doubt in our own minds, will have to stand as the judgment of the court.

By the act of 1853 and the acts amending and supplementing it, it was entirely competent for the village of Nashville, when it emerged from its theretofore township existence and became a corporate entity, to become a village school district. All that was necessary to that end was the election of a board of education, which Nashville village did not do.

Tihe act of 1853 declared it to be such a district. . But the Supreme Court, 'in Cist v. State, 21 O. S., 339, by construction held that the act was not self-executing. In that case it was further held that if an incorporated village was formed within a subdistrict, or included a material portion thereof, no portion of such subdistrict was by reason of such incorporation withdrawn from the school jurisdiction.of the township, but that the whole continued to be a subdistrict until the actual election or appointment of a separate school board, and that the part of the subdistrict not included within the limits of such incorporated vilage was “territory annexed thereto for school purposes,” within the meaning of the statute.

This seems to fix the status of the Nashville territory and to put it for the time being out of the class of village districts, no board of education having at any time been elected or appointed. The act thus construed and as construed, keeping Nashville after its incorporation as a village where it was before in regard to its standing as a school district, was repealed in 1904 (O. L. 97, v. 379).

The part of the repealing act which became Section 3889 of the Revised Statutes, provided that:

“ * * *. Upon the creation and incorporation of a village, the same shall thereby become a village school district; and if said village was, previous to its creation and incorporation, included within the boundaries of a special school district but said special school district included more territory than is included within the village limits, said territory shall be, and thereby is, attached to said village school district for school purposes.”

It is not necessary now to determine whether this act by its own force made Nashville a village school district, or not. But it is to be observed as a significant fact, we think, that although territory which became a -village district upon the mere incorporation of the village, ipso facto, although part of a special school district before, was not allowed to preserve that status thereafter; the territory outside the village limits, although up to that time a part of the special district, was permitted to remain only as attached territory. It passed into, and became merged in the village district and lost its standing as well as its name of a special district. The policy of the law in Ohio for more than a half century consistently has been to make school districts coincide territorially with the political units within which they have been formed, as township, village and city districts, and to have them, as they have passed out of one status, at once emerge into the one next higher. Exceptions to this rule, such as special districts and joint districts, have been allowed only upon controlling considerations of public convenience and welfare. So that, in this case we are dealing with what must be a departure from the line of public policy, if it is allowed.

In addition to the provisions of Section 3889 of the Revised Statutes, just quoted, the purpose of which seems to have been to take, care of the exceptional cases of territory forming a special district becoming by force of the act village districts, the next preceding section, 3888, declared that “Each incorporated village now existing or hereafter created, together with the territory attached to it for school purposes and excluding the territory within the corporate limits detached for school purposes, shall constitute a village school district.” When at last our legislation on this subject passed into and became a part of the present General Code, Section 4687 thereof provided that:

“Upon the creation of a village, it shall thereby become a village school district, as herein provided; and if the territory of such village, previous to its creation, was included within the boundaries of a special school district, and such special school district included more territory than is included within the village, such territory shall thereby be attached to such village school district for school purposes.”

And by Section 4681 it was further provided that:

“Each village, together with the territory attached to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, and having in the .district thus formed a total tax valuation of not less than one hundred thousand dollars, shall constitute a village school district. ’ ’

By Section 4679, there was a still further provision that “the school districts of the state shall be styled respectively ‘city school districts,’ ‘village school districts,’ ‘township school districts,’ and ‘special school districts.’ ”

We have now traced the rise and progress of the legislation of Ohio, so far as it seems to appertain to the status of school territory co-extensive with village territory, when the latter has passed into the village condition from the lower forms of political existence. We are to consider these latest enactments as expressing the matured legislative thought, and the purpose of the state in respect of the subject-matter. What we conclude the legal effect of them is, as applied to the ease in hand, will be remarked upon presently. We need not observe that the statutes last quoted were in force when the proceedings which are attacked in this action were begun.

Some of them were under review by the Supreme Court in the case of Buckman, Auditor, v. State, ex rel Board of Education, 81 O. S., 171.

Construing the decisive section, the court fixes its intendment as follows:

“By force of the provisions of Section 3888, Revised Statutes, as amended April 2, 1906, and in effect April 16, 1906, .98 0. L., p. 217, each incorporated village then existing, April 16, 1906, or since created, together with the territory attached to it for school purposes and excluding the territory within its corporate limits detached for school purposes, and having in the district thus formed a total tax valuation of not less than one hundred thousand dollars, constitutes, and is, a village school district, no vote of the electors of such village being necessary to the creation or establishment of such district.”

In the course of the opinion in that case, it was said:

“It is the contention of counsel for defendant in error that the village of Kenmore upon its incorporation did not thereby by force of the provisions of the above statute become at once or at all a village school district, but that in order to create or establish such district of the territory within the municipality, it is necessary that the proposition to organize such village school district be first submitted to the electors of the village and be favorably determined by a majority vote of such electors. We are of the opinion that neither the grammatical construction nor the proper interpretation of the language employed in the above statute leads to the conclusion for which counsel for defendant in error contend. A consideration of the history of the legislation on the subject of the re-organization and maintenance of our common school discloses that from 1880 to 1906 it was the policy of the state, so declared to be by express statutory enactment, that every incorporated village within the state together with the territory thereto attached for school purposes should constitute a village school district without regard to the tax valuation of the property within the district so formed and without submitting to a vote of the electors of such village the question of establishing such village district.”

The writer of this opinion argued that case, for the losing side, in the Supreme Court, and is entirely familiar with the scope of the discussion and how far the intention at least was manifest to leave no ambiguity on the record as to any point essential to the issues involved; he personally has no doubt upon the subject. The language we have quoted from the opinion makes the meaning tolerably clear, as we think. We shall not, therefore, comment more particularly upon it.

Over against this mass of statutes we now proceed to place the one, under favor of which, if at all, the proceedings had in the probate court acquired their validity and that court its jurisdiction of the subject-matter. It is the enabling act by which the proceedings assailed here must stand or fail, according as it shall be allowed to prevail over, or yield to, the force of the statutes already quoted, taken as an entirety. It is Section 4728 of the General Code, and it reads as follows:

“A special school district may be formed of any contiguous territory, not included within the limits of a city or village, which has a total tax valuation of not less than one hundred thousand dollars.”

As the law at last stood when the case in the probate court was begun, as it was construed in Buckman v. State, we think it would perhaps be safe to infer that the corporate existence of the village of Nashville, ipso facto and without more, constituted that territorial entity a- village school district. But, lest it be thought perilous to go so far as that, in view of the decision in Cist v. State, supra, we need not go to the length of so holding in terms.

But from a careful comparative reading of all the statutes referred to, we are entirely satisfied that if the village of Nashville. was not at the time stated, technically and visibly a village district, it- nevertheless was such district in esse. All that by possibility oould have been lacking was the election of a school board. Now a trust is never allowed to fail for want of a trustee, and especially ought this to be true in the solemn trust of administering a school system in accordance with the known public policy of the state. The village district may have been still a district in gremio legis, in the bosom of the law only, but it was none the less a potential district for all that. It was, and we so hold, so far a district that its territory was no longer the subject of being formed into a special district. It was sequestered territory, territory set apart and withdrawn from appropriation to any other use than that to which the fact that Nashville was already a village had by operation of law devoted it. The policy of the state to have its school units coincide with its political units, should not permit the mere default of villagers to elect a board of education, to defeat that policy.

Indeed it would perhaps be safe to say, without this consideration, that the village territory in question is immune from appropriation as a special district by force of the words of negation found in Section 4728, under which, if at all, the proceedings in the probate court could be upheld. Whether a vote of the electors was necessary -upon the subject, according as the valuation should pass beyond or fall short of the hundred thousand dollar mark, we dq not regard as material. That question could only affect the passing of the territory from its old condition as a township district into its new status as a village district. It would not subject the territory in any event to invasion or entry by special district seekers; it was not open or unappropriated territory. It was foreclosed by what we consider the force of the statute, against entry in any form except that into which it would pass as it should emerge into the village state. We are sure the statute contemplates no such thing as that a village, complete in all its parts, and wanting only the movement of its electors, towards forming a school board, may be seized, judicially, and thrust back, hopelessly, into a township or special district condition.

The probate court, besides being a statutory court, in- the first place, was acting in the proceeding under review specially only. Its jurisdiction, therefore, was a limited jurisdiction, and it is not to be aided by presumption. Harrington v. Heath, 15 Ohio, 483; Fee v. Iron Co., 13 O. S., 563; Handy v. Iron Co., 37 O. S., 366.

We also reach the same conclusion on another ground. We are not satisfied from the proof before us that the territory in question had a tax valuation of not less than one hundred thousand dollars when the petition was filed in the probate court. The record in this respect is not satisfactory and we must require full proof on a jurisdictional fact like this. The addition claimed to have been made to the duplicate in order to reach the $100,000 mark, was of doubtful regularity and was designed to be only temporary in its effect.

We conclude and hold that the probate court, in the proceeding here challenged, was without jurisdiction of the subject thereof, and that whatever it did in that respect was inoperative and void.

This being our judgment, the election also called in question in this action, falls under the same condemnation, and no discussion of its alleged invalidity on other and independent' grounds, is deemed necessary.

The plaintiff is entitled to the relief prayed for and a perpetual injunction is awarded.

A decree may be drawn accordingly.


text:
    NATURE OF ACTION TO FORECLOSE A MECHANIC’S LIEN.
    Circuit Court of Cuyahoga County.
    Anton Jesionowski v. John Wismiewski et al.
    Decided, November 26, 1906.

      Appeals — Action to Foreclose Mechanic’s Lien and for Money Judgment Appealable.

    An action to forec’ose a mechanic’s lien in which a personal judgment is asked in connection therewith, is not an action' for money only and is appealable.
    Henry, J.; AYincii, J., and Marvin, J., concur.
   In the appeal ease of Anton Jesionowski v. John Wismiewski, and the error case in which the parties are reversed (the plaintiff in the appeal case being the defendant in the error case, and the defendant in the appeal case being the plaintiff in error in the error case), the action as originally begun was an action to foreclose a mechanic’s lien and to obtain a personal judgment for the amount secured by the lien. After the trial in the court below and bond given for appeal, a motion was made to strike the appeal bond from the files upon the theory that the case was not appealable. And the court below granted that motion, and for its action in that behalf the error case here is prosecuted.

AVe think the judgment and order in that matter should be reversed. We hold that this is a case that is properly appeal-able. and that therefore when the bond was filed in the court below it was appealed and the court below lost all jurisdiction of the matter. Our grounds for thinking that the. case is appealable — notwithstanding the decision in the ease of Grapes v. Barbour, 58 O. S., 669, which is not a mechanic’s lien case, but an action for foreclosure of a mortgage — our grounds, I say, will presently be shown. The syllabus in that case is as follows:

“If in an action for- the foreclosure of a mortgage and for a personal judgment for the money claimed to be due upon the demand which it secures, the journal entry in the court of common pleas shows that before the action is tried, the plaintiff, by leave of court, withdraws the prayer for the personal judgment, and the court proceeds to find the amount due and to decree a foreclosure, the mortgagor may appeal to the circuit court. ’ ’

And then in the opinion of Judge Shauck, page 674, it is said:

“ It is indispensable, under the provisions of Section 5226, Revised Statutes, that an action, to be subject of an appeal to the circuit court, must be one in which the right to demand a jury does not exist. It is provided in Section 5130, that ‘issues of fact arising in actions- for the recovery of money only, or specific real or personal property shall be tried by a jury,1 unless such trial be waived or a reference ordered. It is provided in Section 5021, that ‘in an action to foreclose a mortgage given to secure the payment of money, or to enforce a specific lien for money, the plaintiff may also ask in his petition, a judgment for the money claimed to be due; and such proceedings shall be had, and judgment rendered thereon, as in a civil action for the recovery' of money Only. ’ ’

Without reading the remainder of the opinion in that case, I call attention to the fact that Section 5021, the quotation of which in Judge Shauck’s opinion I have just read, is now, so far as it appears in our statutes a.t all, found in paragraph 8 of Section 5058, which reads as follows-,

“Claims to foreclose a mortgage given to secure the payment of money or to enforce a specific lien for money, and to recover a personal judgment for the debt secured by such mortgage or lien”’

may be joined as provided earlier in the section. Now the words that are left out of Section 5058 in covering the ground which was formerly covered by Section 5021, are concluding words of Section 5021 as follows:

“And such proceeding shall be had and judgment rendered therein as in civil action for the recovery of money only.”

These words are now omitted.

It follows, therefore, in that class of actions, as the statutes now stand, where a personal judgment is asked in connection with the foreclosure of a mortgage or mechanic^ lien, that the action is not one for money only, and therefore not triable to a jury, and it is appealable.

So that, the appeal having once been perfected, the court below lost jurisdiction, and the order which was made upon the motion to strike the appeal bond from the files was an order made without any jitrisdiction to make it, and it should, therefore, be reversed and we will here render the judgment on that motion which should have been rendered in the court below in this proceeding in error, and that is, that the motion be dismissed for want of jurisdiction.

On the merits of the appeal as tried in this court, the sole issue made is upon the claim that there was no mechanic’s lien taken, because the statutes that applied to that subject at the time the attempt to take it was made were not complied with. The statute as it then existed has since been amended, and we do not think it profitable to spend time in undertaking to construe it at great length now, because it is unlikely that any future case— any cases hereafter to be decided — will turn upon a construction of the statute as it then was. If I should say that we find that no notice to the owner was required at the'time this lien was sought to be taken — none was necessary and none was in fact given— it follows that so far as the claim that no notice was given is concerned the mechanic’s lien is good.

It is also claimed that in order to perfect a lien the' person against whom the lien is asserted should have been in the then state of statutes, the owner of the fee, and that an attempt such as was made here must be futile where it is sought to take on a lien on any equitable interest in land, the defendant being merely the owner under a contract and not under a deed of conveyance.

But we hold, as the statutes then were, it was permissible and possible to obtain a lien against the estate of a person having only an equity of that character in the lands sought to be subjected to the lien.

Judgment for the plaintiff.


author: Pollock, J.,

text:
    NEGLIGENCE IN MAINTENANCE OF A DISTRICT CHILDRENS’ HOME. -
    Court of Appeals for Columbiana County.
    Crawford v. Commissioners of Columbiana County et al.
    Decided, March 28, 1913.

      Employee of District Childrens’ Home — Injured Through negligence of a Superior Servant — Liability of Gount-y Commissioners.

    1. Where a county or a district maintains a children’ home, under the provisions of Sections 3077 and 3109 et seg., General Code, the county commissioners in their capacity as board of managers thereof are liable in their official capacity for negligence in maintaining such institution, independent of the provisions of Section 2408.
    2. Where an employee of an institution is injured by the negligence of a superior servant under circumstances which would ordinarily create a liability between employer and employee, such employee may maintain an action against the county commissioners in their official capacity for damages arising therefrom.

      K. L. Cobourn, for plaintiff in error.

      William H. Vodrey, contra.
    Metcalfe, J.; Norris, J., concurs; Pollock, J., concurs in a separate opinion.
   The plaintiff here, Erma V. Crawford, was plaintiff below, and her action was brought against the several defendants to recover damages for injuries, which she claims to have sustained, by reason of the joint negligence of the defendants. She avers in her petition that the Fairmount Children’s Home is a children’s home formed under the statutes of Ohio, by the union of the counties of Columbiana and Stark into a joint district under the control of the joint board of commissioners of. Stark and Columbiana counties, and a board of trustees, consisting of three members. She sets out certain alleged acts of the defendants by reason of which the injuries which she sustained were caused, and alleges that those acts were the negligent acts of the several defendants in maintaining said institution.

It is needless to recite the acts complained of, for the questions involved in the case, do not involve the question whether or not the acts themselves are such as would ordinarily sustain an action for negligence, but the question which arises in the ease is, whether or not there is any liability on the part of the defendants, even though the acts set forth are negligent. The question arises on demurrer to the petition. In the-court of common pleas the demurrer was sustained, and the plaintiff, not desiring to amend her petition, allowed judgment to be taken against her, and the petition dismissed. She then filed her petition in error here to reverse the judgment of the court of common pleas upon that demurrer.

The question here presented is one which we, at first blush, thought was decided by a number of cases in Ohio, but upon more mature consideration we have come to the conclusion that the question here involved is not settled by the adjudicated cases in this state. The question; in- short, is whether or not an action for negligence can be maintained against the commissioners of a county, or against the joint board of commissioners of two or more counties, which have been formed into a district, for the purpose of maintaining under the law Of Ohio, a children’s home independent of the provisions of Section 2408, General Code.

The statutes under which this children’s home is organized do not impose upon the county commissioners a duty to provide such homes except upon a vote of the people; that is to say, by the provision of the statutes the county commissioners may, of their own volition, submit the question to the people, whether or not a children’s home may be provided, or they are required to submit the question if 'a petition is presented to them signed' by a certain number of voters residing within the county, or the district, requesting a vote upon the proposition to maintain such a home. So that the question of maintaining a children’s home is entirely a voluntary question. It is not a duty which is imposed, by law, upon all the counties of the state alike, but one which the people of any county may impose iipon themselves if they so desire. When they have determined, by a vote taken in pursuance of the statute, that they will maintain a children’s home, then the duty of taking charge of that home is imposed upon the commissioners, and a board of trustees, to be appointed by the commissioners.

In the ease of Commissioners of Hamilton County v. Mighels, 7 Ohio St., 109, it is held that the board of commissioners of a county are not liable, in their quasi-corporate capacity, either by statute or at common law, to an action for damages for injury resulting to a private party by their negligence in the discharge of their official functions, overruling the case of Commissioners of Brown County v. Butt, 2 Ohio St., 348, which held a contrary doctrine. So far as the general doctrine is concerned that the county commissioners of a county are not liable in their corporate capacity for injuries resulting from their negligence in the performance of the duties imposed upon them by law there has been no deviation from the holding in the Hamilton county case, but that ease has been followed in a number of cases since then, and it is not only the law of this state but probably is the law of every state in the Union.

There is, however, another line of cases, none of which arise in this state, which makes a distinction between the liability of the commissioners for negligence in the performance of those dirties which are imposed upon them by law, which are general in their application and apply to all of the commissioners of all the counties in the state alike, and those duties which arise in carrying out a policy or in the performance of a duty which has been voluntarily assumed by the people of the county, for particular purposes; but before we discuss that question perhaps we should discuss another question which arises in this case. ■ It is insisted that in this state no action can be maintained against the commissioners either for negligence or for any other cause, unless fhere is a statutory provision authorizing such action; that is to say, that the commissioners can neither sue nor be sued, except as they are specially authorized by statute to do so.

We think, upon an examination of the law, that that objection is not tenable. By Section 2408, General Code, it is provided that the board of county commissioners may sue and be sued, plead and be impleaded in any court of judicature, bring, maintain and defend all suits in law or in equity, involving an injury to any public, state or county road, bridge, ditch, drain or watercourse, established by such board in its county and for the prevention of injury thereto. It then provides that the board shall be liable in its official capacity for damages received by reason of its negligence or carelessness in keeping any such road or ditch in repair, 'and in some other respects. It will be noticed that all the cases enumerated, in which the statute provides for the liability on the part of the commissioners for carelessness or negligence are eases where, by the common law, no such liability existed before the passage of the act, and we are asked to infer, by reason of the enumeration of particular instances in which the board of commissioners are authorized to bring suits, either at law or in equity, and of other instances where they are liable, that therefore there is no liability on the part of the board unless such liability is fixed by statute.

It is true that no suit, either at common law or equity, could be maintained against the state, as such, but the recently adopted constitutional amendment provides that the Legislature may authorize such suits; but it does not follow that a subdivision of the state may not maintain an action or may not be subject to a liability. It does not follow that, because the county commissioners, in their 'corporate capacity, are not liable for their negligent acts in certain instances, they may not be endowed with, corporate capacity to site and be sued in other instances where the law either permits or requires them to act.

In Commissioners of Hamilton County v. Noyes, 35 Ohio St., 201, in the first proposition in the syllabus it is held:

“1. The capaeitj1' of the county commissioners to sue is not limited to the cases enumerated in Section 7 of the 'Act establishing boards of county commissioners and prescribing their duties.’ Tn the cases enumerated in Section 7 (which is the equivalent of Section 2408, General Code, they are not only authorized but required to sue.
"2. Where a cause of action in favor of the county arises out of a subject-matter within the control of the county commissioners, suit may be brought thereon in the name of the board, unless, by statute, the suit is required to be brought in some other mode.”

In Shanklin v. Commissioners of Madison County, 21 Ohio St., 575, it is held that the commissioners might maintain an action upon a certificate of deposit, issued by a bank, where such certificate had been turned over to the county by an officer in settlement of an alleged embezzlement of which he had been guilty.

Ketter v. Commissioners of Scioto County, 8 C.C.(N.S.), 73; Hassenzahl v. Bevins, 2 C.C.(N.S.), 496, and Jones v. Commissioners of Lucas County, 57 Ohio St., 189, are cases which fully recognize the right of the county commissioners to sue or b!e sued independent of the provisions of Section 2408, General Code, in causes of action arising upon matters which are within the control of the county commissioners, so that we think that the right of the county commissioners, either to sue or be sued, is not entirely dependent upon the statute, and is not limited to the cases enumerated in the statutes, but that actions may be maintained against them the same as against any body corporate in cases where the acts out of which the liability arises are within the scope of their powers.

It may be that we have stated this' proposition a little too .broadly, but we are satisfied that the right to maintain an action against the commissioners is not limited to the cases enumerated in the statute.

Now, as to the question whether or not a liability arises in this case. The organization of this children’s home was entirely a voluntary act on the part of the people of the counties of Stark and Columbiana. It was not a duty which was imposed upon them by statute. A right to organize such a home was created by statute, or, at least, was provided for by statute, but the people were under no legal obligation whatever to cause to be erected and maintained such a home. So that it was purely a voluntary act on their part, one which they could accept or . reject at pleasure. If the majority of the people voted to maintain it, then it became’the duty of the county commissioners to provide the lands, and buildings necessary for its proper maintenance. Otherwise there was no dnty whatever imposed upon the commissioners in respect to the children’s home. We think the law recognizes a distinction between those eases where a duty is imposed by law upon the commissioners or the people of the county, which is general in its application throughout the state, and rests upon all counties alike, and those eases where the duty is self-imposed, and this distinction is quite clearly stated in the case of Bigelow v. Randolph, 80 Mass. (14 Gray, 541), in the opinion of the court. In that case it was held that no liability rested upon the board of county commissioners for the acts which were charged in the petition of the plaintiff, but in discussing the question the judge delivering the opinion of the CQurt uses this language:

“This rule of law, however, is of limited application. It is applied, in case of towns, only to the neglect or omission of a town, to perform those duties which are imposed on all towns, •without their corporate assent, and exclusively for public purposes; and not to the neglect of those obligations which a town incurs, when a special duty is imposed on it, with its consent, express or implied, or a special authority is conferred on it, at its request. In the latter cases, a town is subject to the same liabilities, for the neglect of those special duties, to which private corporations would be, if the same duties were imposed or the same authority were conferred on them — including their liability for the wrongful neglect as well as the wrongful acts of their officers and agents. ’ ’

In the case of Hannon v. St. Louis County, 62 Mo., 313, the syllabus is as follows:

“The rule that counties, being political subdivisions .of the state, are not liable for the laches or misconduct of their servants, has no application to a neglect of those obligations incurred by counties when special duties are imposed upon them. Thus, where the county of St. Louis made a contract for laying water-pipe to the county insane asylum, the work being done under the supervision of the county engineer, and, while a trench was being dug in the grounds of the asylum, it caved in and killed one of the workmen, it was held that the duty in which thq county was engaged was not one imposed by general.law upon all counties, but a self-imposed one. ’ ’

And it is held that the county was liable in this instance.

In the case of Coburn v. San Mateo County, 75 Fed. Rep., 521, it is held:

“A county is liable for trespasses or damage done to private property by its officers, in the exercise of powers conferred for the benefit of the locality and its inhabitants, such as those relating to the opening and keeping open of roads, as distinguished from, powers relating to the administration of the general laws and the enforcement of the general policy of the state.”

Very likely this decision would not apply in Ohio as to a liability for negligence in respect to a road. We cite it only, however, to illustrate the principle upon which these cases go, that where the duty which the county commissioners are performing is self-imposed, one which has been voluntarily assumed by the people of the county and not one whic|h has been imposed by general law, a liability exists for negligence.

Again, in the case of Rowland v. Kalamazoo County, 49 Mich., 553, it is held:

‘ ‘ In clearing up the poor-farm, the superintendents could not, nor could those in their employ, with impunity, negligently set fires, or carelessly permit them to extend to and destroy the property of their neighbors, nor could they permit the farm stock to trespass upon the lands o'f adjoining proprietors and claim exemption from all liability therefor.”

And in this ease the distinction which I have attempted to make is clearly drawn.

In 7 Am. & Eng. Ene. Law (2d Ed.), 953, the rule is thus stated:

“The prevailing rule that a private action can not be maintained against a county for neglect of corporate duty, unless the action be given by statute, has been held to be of limited application. Thus the rule has been held to apply to the neglect or omission of a county to perform those duties which are imposed on all counties without their corporate assent, and not to the neglect of those obligations which a county incurs when a special duty is imposed on it with its consent, express or implied, of a special authority is conferred on it at its request. In the latter ease the county is subject to the same liabilities as private corporations for the neglect of those special duties. ’ ’

The cases quoted above are cited in the note, and there are also a number of other cases which hold clearly the same doctrine.

So we have come to the conclusion in this case that there is a distinction between the case at bar and the case of Commissioners of Hamilton County v. Noyes, supra, and those cases which follow the doctrine there laid down; that in this ease the duty which the commissioners were performing was a self-imposed duty, one which the citizens of the counties of Stark and Columbiana had voluntarily assumed, and that in the performance of the duties thus imposed a liability exists for the negligent acts of the persons' performing those duties.

So we think that it was error for the court of common pleas to sustain the demurrer to the petition in this case, and the judgment of the court of common pleas is reversed.

Judgment reversed.

Pollock, J.,

concurring.

I do not dissent in this case, but I reached the conclusion somewhat differently from my brother. Perhaps I should state my views.

T do not think that when a children’s home is established by the county the county is performing that duty in any different way from any other duty imposed on a county by statutes. Long before the act establishing a children’s home it was the county’s duty to take care of its indigent children, and they were taken care of in the infirmaries of the county. A sentiment grew up that the latter were not proper places for the rearing of children, and the Legislature then passed this act authorizing the establishment of children’s homes but not making it a requirement on the county until the electors had voted in favor thereof. After the home was authorized a duty was imposed upon the county, just as any other duty is imposed upon it.

So that I think the liability of the county in the management of a children’s home is just the same as liability for any other act the statute imposes upon it. In the examination of the authorities I think you will find two clear and distinct lines.

One exempts the county from liability for the negligence of its agents and servants, and if it is the political division of the state known as the county that is being sued in tort for the negligence of its agents, the suit can not be maintained.

The other line holds that the distinction is in the acts which the counties are engaged in; if the act is simply a governmental one they can not be held liable; but if they have exceeded that and gone into the transaction of business the same as private corporations are individuals, they then can be made liable or held liable for the acts of their agents and servants.

Up to the present time I think the policy of the courts of this state has been to adopt the former. But I believe the latter is more in keeping with justice and right, and for that reason I do not dissent. . •


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    ERROR. IN THE DETERMINATION AS TO THE CAUSE OF THE ACCIDENT COMPLAINED OF.
    Court of Appeals for Trumbull County.
    Stockberger v. The Ames Shovel & Tool Company.
    Decided, September 24, 1913.

      Proximate Cause — Distinguished from the Cause Producing the Injury —Error in Directing Verdict for the• Defendant.

    The defendant had piled saw logs for a distance of about three hundred feet upon both sides of the public highway, leaving only the traveled part of the highway free. Plaintiff, while driving between these piles of logs, observed a runaway team approaching him from behind. By running his horse he succeeded in getting past the logs, but within a short distance was struck by the team and injured.

      Held: .It was error for the trial judge under the circumstances to direct' a verdict for the defendant. Whether under the circumstances the logs piled upon the highway by preventing the plaintiff from the use of the entire roadway to escape from the runaway team was the probable cause of the accident, was a question for the jury and not for the trial judge.

      Webb •<# Webb, for plaintiff in error.

      Fillius & Fillius, contra.
    Metcalfe, J.; Norris, J;, and Pollock, J., concur.
    Error to the Court of Appeals for Trumbull County.
   Plaintiff here, Louis Stockberger, was plaintiff below. The action was brought to recover damages for injuries sustained by the alleged negligence of the defendant. The trial judge at the close of the plaintiff’s evidence, on motion directed a verdict for the defendant. That is the error complained of.

The defendant was engaged in shipping saw logs at the railroad station at Hiram, Portage county. Near the station, for a distance of about three hundred feet, the defendant had piled saw logs on both sides- of the highway and within the limits thereof, leaving only -the traveled strip in the center free. While the plaintiff was driving with a single horse and buggy on the road between these piles of logs he observed a runaway team drawing a heavy lumber wagon approaching him from behind. On account of the logs there was no opportunity for Mr. Stoekberger to turn out on either side of the road. He tried to avoid the team by whipping his horse into a run and succeeded in getting past the log piles, but within a short distance was overtaken by the runaway team, which ran into his conveyance and injured him. The trial judge directed a verdict upon the'theory that the running away of the team and not the piling of the logs on the highway was the sole producing causé of the accident. In this we think there was error. The highways of the state are to be kept open and free for the use of the public, and no one has a right to place obstructions thereon which will prevent the free use thereof, especially in case of an emergency. Mr. Stockberger was confronted with an emergency, that is to say, avoiding the runaway team. He had an undoubted right to use the entire highway for that purpose. The question is not whether he would have so used it, or whether it would have been t,wise or unwise for him to do so, but was he deprived of an opportunity to turn out of the traveled part of the highway upon one side or the other if, under the circumstances, his judgment dictated that as the safe course to pursue ? Or, to put it another way, did the accident result as a natural and probable sequence from the fact that the logs were piled upon the highway and the plaintiff was thus prevented from using the entire road as means of escape? It is possible, of course, that he might have avoided the injury after passing the logs, but that is a question for the jury solely and not for the trial judge.

There are many cases cited which undoubtedly sustain the defendant ’s theory of proximate cause in this case, but to adopt it would be to exclude the existence of the logs upon the high..way from the consideration of the jury altogether. The later and better cases, it seems to us, point out a better rule, which is well illustrated in the case of Meyer v. The Milwaukee Elec. Ry. & Light Co., 116 Wis., 336. The first proposition of the syllabus is:

“In an action for personal injuries, an instruction to the jury defining ‘proximate cause’ as the ‘direct and natural,’ and the ‘direct and producing cause without the existence of which such injury would not have occurred’ is incorrect. It is not essential that the negligence complained of should be the direct cause of the injury. It is sufficient that the natural and probable cause, from which an ordinarily prudent and intelligent person ought, in the exercise of such intelligence, to have foreseen that an injury might probably result from the alleged negligence under like circumstances.”

The trial judge in this case on the question of proximate cause gave the following instructions to the jury, page 339:

“So that, to answer this question in the affirmative, you will have to find two things: First, that the want of ordinary care on the part of the servant or servants of the defendant was the direct and producing cause of the injury, without the existence of which such injury would not have occurred; and second, that the injury resulting therefrom was such as a person of ordinary intelligence and prudence would, in the light of the surrounding circumstances, have reasonably foreseen as- the probable result of such want of care.”

Speaking of this charge the judge delivering the opinion says, page 339.-

“It can not be doubted that this instruction is incorrect in several respects. Primarily, itis said that the negligence, in order to be the proximate cause of the injury, must have been the ‘direct and natural’ and the ‘direct and producing cause, without the existence of which such injury would not have occurred. ’ It is somewhat surprising that, after 'all that has been said by this court in recent years upon this subject, correct definitions of this somewhat metaphysical conception of proximate causation in cases of negligence should be evaded by trial courts. It is not essential that the negligence should be the direct cause of the injury. It suffices that it is the natural and probable cause. It is the natural cause when it acts directly in producing the injury, or sets in motion other causes so producing it and forming a continuous chain in natural sequence down to the injury ; thus linking the negligence with the injury by a chain of natural and consequential causation, although the former may be neither the immediate nor the direct cause of the event. But such causation can not be proximate cause in law to arouse liability, unless an ordinarily prudent and intelligent person ought, in the exercise of such intelligence, to have foreseen that an injury might probably result from the negligence under like circumstances. ’ ’

This case, it seems to us, makes clear the distinction we have been attempting to make here, viz., that the proximate cause of the injury in this case is not necessarily the cause which directly produced the injury, that is to say, the running away of the team, but it is that cause which from all the facts proved an ordinarily careful and prudent person would say probably led to the final event as a. natural consequence. This is a question for the jury and not for the trial judge. The judgment is reversed.

Judgment reversed.


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    OWNERSHIP OF GRAVEL WASHED FROM ONE SIDE OF A STREAM TO THE OTHER..
    Court of Appeals for Madison County.
    E. E. Limle and Andrew Rescher v. Willis Robison.
    Decided, March 2, 1915.

      Riparian Rights — Title of Owners Abutting on Either Side of a Non-navigable Stream — Extends to the Middle Thread of Low Water — • Washing Away of G-ravei bn One Bank and a Deposit of Gravel on the Other Bank Not Proof of Avulsion.

    1. The title of adjoining owners of land which extends to certain fixed monuments upon opposite banks of a small non-navigable stream and thence along such banks respectively, is carried in each proprietor to the middle thread of the stream at low water.
    2. Proof of the caving in and washing away of gravel deposits upon one bank of such stream, and the sudden formation of a gravel bar upon the opposite bank at a point in the flood water channel toward which the current of the stream carried the washings, is not sufficient proof of identity to establish a case of avulsion, and the gravel, therefore, belongs to the proprietor of-the soil upon which it rests.

      I. N. Abernathy, for plaintiffs in error.
    ■ McCloud £& Lincoln and IianMn & Rankin, contra.
    Allread, J.; Fernedíng, J„.and Kunkle, J., concur.
   The controversy in this ease arises over the ownership of certain gravel taken from a bar in Deer Creek, a small non-navigable stream.

Robison and Limle are adjoining owners of land, the boundaries of which respectively extend to certain fixed monuments on each bank of Deer Creek and t.henee along the banks of said stream.

These deeds under the established law of this state would carry the boundary line of each proprietor to the middle thread of the stream at low water. Lamb v. Rickets, 11 Ohio, 311; Gravit v. Chambers, 3 Ohio, 496; Niehaus v. Shepherd, 26 Ohio St., 40; June v. Purcell, 36 Ohio St., 396.

The question of boundary as presented by the evidence is fairly and correctly stated by counsel fof plaintiff in error in the following paragraph of this brief:

‘‘The water in this stream, therefore, when it was low constituted but a small channel but a few feet in width, between Limle’s bank and the gravel bar. To take that as the middle of the stream as the coul’t finally instructed the jury, would necessarily give Robison all the gravel in this bar and the jury was so instructed to find. ’ ’

The instruction of the court to the jury both in the general charge and in the answers to questions of the jury was substantially to the effect that the center of the stream at the time the gravel was taken or at the time of the trial, was the boundary line and this, while not absolutely correct, was favorable to the plaintiff in error rather than against him.

This brings us to the second and most important point of difference between counsel, namely, the question of accretion and avulsion.

Upon this point the trial court charged the jury in substance that the-gravel in controversy belonged to the landowner upon whose premises it was found. This was, as counsel for plaintiff in error contends, practically an instruction to return a verdict for the plaintiff below.

Was this- instruction correct?

The testimony' shows that prior to the great flood of March, 1913, there was a gravel bank of considerable proportion on the lands of Limle and that after the flood a portion-of Limle’s gravel bank was washed away by the flood and that after the flood had subsided, the gravel bar in controversy was found beyond the low water channel of the stream and nearly opposite the Limle gravel bank.

The evidence, also shows that there were various other gravel deposits in the banks and channel of Deer Creek above the bar in controversy which were washed out to some extent in the same flood. The testimony of Limle is to the effect that he saw some of the bank on his property (-ave into the stream during the flood and carried by the action of the water in the direction of this bar.

Controversies growing out of the shifting of earth by the action of the waters in running streams have given rise to the doctrines of accretion and avulsion.,

In the cases of accretion owing to the difficulty of tracing the oi'iginal source, the law awards it to the owner of the land to which it becomes attached, while in cases of avulsion the original owner still holds the title.

Accretion is said to be the deposit by gradual and imperceptible process, while avulsion involves the transfer of a considerable quantity of earth beyond or over the channel of the stream.

Accretion is the usual and ordinary case of the shifting oil earth by the action of the waters and avulsion is of a somewhat extraordinary nature.

Avulsion may exist first when the stream changes its course, and second, where a considerable quantity of earth is carried en masse across the channel and attached to the opposite shore.

As applied to the second class, we may adopt the following definition:

“Avulsion is the removal of a considerable quantity of earth from the land of one proprietor and its deposit upon or annexation to the land of another, suddenly and by the perceptible action of the water.” 40 Cyc., 625.

To this definition may be added the following from the syllabus in the case of State v. Pulp Co., 119 Tenn., 47, 53.

“Where the change- of the channel of a river is made suddenly and violently and is visible and the effect is certain, it is said io be by avulsion.”

In Coulthard v. Davis, 101 Iowa, 625, it is held:

“Land detached from one side of a river by sudden change in the channel and left connected with land on the other side in such manner as to be capable of identification, is not accretion.”

In the latter case the strip of land carried across the channel was a mile or more in width holding trees varying in size up to two feet in diameter.

■ The question of identification must necessarily play an important part in applying the doctrine of avulsion. For without identification, there can be no avulsion in a legal sense.

This feature is fully discussed in the celebrated case of Nebraska v. Iowa, 143 U. S., 359, in the opinion of Mr. Justice Brewer on page 369. In the course of the opinion in respect to the shifting of the banks of the Missouri river by flood waters, it is said:

“That while the disappearance, by reason of this process, of a mass of bank may be sudden and obvious, there is no transfer of such a solid body of earth to the opposite shore, or any thing like an instantaneous and visible creation of a bank on that shore. The accretion, whatever may be the fact in respect to the diminution, is always gradual and by the imperceptible deposit of floating particles of earth. There is, except in such cases of avulsion as may be noticed hereafter, in all matter of increase of bank, always a mere gradual and imperceptible process. There is no heaping up at an instant, and while the eye rests upon the stream, of acres or rods on the forming side of the river. No engineering skill is sufficient to say where the earth in the bank washed away and disintegrating into the river finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or fifty miles below, and upon either shore. There is, no matter how rapid the process of subtraction or addition, no detachment of earth from the one side and deposit of the same upon the other.”

The process so described was held to be accretion and not . avulsion. See also Willey v. Lewis, 28 Bull., 104.

In the case at bar it is conceded on page 10 of the brief of counsel for plaintiff in error that there was no change of the course of the stream. To make out a case of avulsion, therefore, it was necessary to show not only the sudden disappearance of the Limle bank, but that it was carried en masse and in a visible manner to the opposite, bank. This' the evidence does not establish.

There is, of course, a probability that when Limle’s gravel bank fell into the Hood waters of Deer Creek, a portion of it may have found lodgment on the gravel bar in controversy. But that is purely speculative. It is also probable that Limle’s gravel, or at least a portion of it, may have been carried by the waters to other points and deposited. And it is also probable that other gravel may have found lodgment on the gravel bar in controversy and that the gravel bar instead of being composed exclusively of Limle’s gravel was in fact a commingling of the washings of this stream from various sources the identity of which can not be legally established.

The ease, therefore, falls within the principle of accretion and the trial court was justified in determining as a matter of law that the gravel belonged to the owner of the land to which it had become attached when the waters had subsided.

There is complaint as to the charge of the court upon the question of burden of proof, but this was not material in view of the fact that the verdict and judgment under the law as we interpret it, is in accord with the practically undisputed facts of the case.

Finding no error, the judgment of the court of common pleas is affirmed.


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    REFORMATION OF A FIRE INSURANCE POLICY.
    Court of Appeals for Portage County.
    J. R. Roberts & Son v. National Insurance Company of Cincinnati.
    Decided, March 30, 1914.

      Fire Insurance — Where a Policy is Renewed Without Notice of a Change in Its Conditions — There is an Implied Agreement that the Conditions Will he the Same as in the Old Policy — Burden of Proof in Action for Reformation of Policy.

    An agreement was made between an insurance company and a policy - holder to renew such policy. Nothing was said by either party at •the time as to any change in the terms of the policy. A renewal policy was issued by the insurer which contained a clause materially affecting the right of the insured to recover in case of loss. The insured upon receiving the policy laid it away without examining it and did not discover the change until after a loss occurred. Held:

    1. Proof of such facts by clear and convincing evidence entitle the insured to a reformation of the policy by striking out the added clause.
    ' 2. The insured on receiving the renewal policy had a right to understand that the terms thereof were substantially the same as those of the first policy; and it was not laches under the circumstances not to read the policy.
    3. The insurer claiming that a change was made in the original policy after the same was delivered and that the' renewal policy was issued in accordance with such original policy as so changed, the burden of proving such change by clear and convincing evidence is on the insurer.

      J. L. Kohl and H. T. Loomis, for plaintiff.

      ~W. J- Beckley and Webb k§ Webb, contra.
    Metcalfe, J.; Norris, J., and Pollock, J., concur.
   This action was brought to recover upon an insurance policy issued by the defendant company to the plaintiffs January 3, 1912, upon which it is alleged a loss of fire occurred on the 22d day of February, 1912. The answer of the defendant company, after stating some matters in defense which, are unnecessary to be considered now, alleges that the policy contained the following provision:

“It is expressly stipulated that the assured shall before this policy shall take effect (providing that no inventory has been taken within twelve months) make an inventory of the stock to be covered hereby, and shall keep books of account correctly de- • tailing purchases and sales of said stock from and after the date of said inventory, both for cash and credit, and shall keep said inventory and b'ooks securely locked in an iron safe, or away from the property hereby insured, during the hours that such store is closed for business. Failure to observe these conditions shall work a forfeiture of all claims under this policy.”

It is then averred that plaintiff failed to make an inventory of the stock covered by the policy, failed to keep books of account correctly detailing purchases and sales of stock, and also failed io keep said books locked in an iron safe, or away from the building containing the property insured by said policy, during the hours that the store was closed for business.

Plaintiffs thereupon filed an- amended petition in which it is averred in substance that the policy upon which the action was founded was a renewal of a policy issued by the defendant company to the plaintiff January 3, 1911, No. 118588; that said policy, so issued January 3, 1911, did not contain the clause set out in the answer of the defendant, or any provision of like nature; that the policy sued- on was issued in renewal of the first policy, and that the plaintiffs were unaware that said second policy contained said provision, and that the same was inserted in said policy without the knowledge of plaintiffs, and that the contract for the renewal of said policy was upon the same terms and conditions as were contained in the policy of January 3, 1911. Plaintiff prays for a reformation of the policy.

It is admitted in the answer to the amended petition that the policy issued January 3, 1911, did not contain the clause in controversy, known technically as the “iron safe clause,” but that after it had been issued the defendant had received notice from its local agent that it had been issued without said clause. That the company declined to carry the plaintiffs’ risk unless that. provision was made a part of the policy, and that thereafter on February 4, 1911, said policy as originally issued was corrected by the insertion of what is known as the 1 ‘ country store form ’ ’ and the same appears in policy No. 124387, which is the policy sued on and which form contains the stipulation hereinbefore recited, and the defendant avers that the second policy was a renewal of the first policy as corrected. This is denied by the plaintiffs. The question here presented to us is whether or not the plaintiffs have made a case for the reformation of this contract.

It seems to us that the entire question hinges upon the contention of the defendant that the policy issued January 3, 1911, was corrected by the insertion of the so-called “iron safe clause.” It appears conclusively that the first policy did not contain that clause and so far as appears from the evidence at the time the policy was issued, and in the negotiations for the same, nothing was said by the plaintiffs or by the local agent of the defendant company, Mr. E. M. Roberts, of Ravenna, about any such clause.' Mr. Roberts, the agent, after he had been informed by the company, as he says, that they did not care to carry the risk without the insertion of that clause, states that he went to the place of business of the plaintiffs and that he said to Mr. Walter Roberts, the son and a member of the firm, that the company declined to carry the policy unless it was changed to the usual country store form, and that he gave to Mr. Roberts a slip containing the clause above quoted, and told him to paste it on the policy, which he says Mr. Roberts agreed to do. Mr. Walter Roberts emphatically and positively denies having any such conversation with Mr. E. M. Roberts or that he ever delivered to him any such paper, as he says he did. Mr. E. M. Roberts says that at this time there was nothing said about an iron safe or any safe, and that all he said about it was that it was the usual country store form of policy and that the company would not carry it in the form in which it had been originally issued.

In order to entitle a party to a reformation of a written contract it is necessary that the proof should be clear and convineing. Considering the contention of the defendant that the policy was corrected after it had been issued by the insertion of the clause in question, how stands the proof? The first policy issued did not contain the clause in controversy. The evidence is clear enough that this second policy, the one sued on, was a renewal of that policy and that in the negotiations for the renewal nothing whatever was said by either party regarding the iron safe provision,- or the country store provision, or anything as to the form of the policy. Whether the renewal was first requested by the plaintiffs, or whether the plaintiff was notified by the agent that the first policy was about to expire and a renewal requested is immaterial. They did negotiate for a renewal, and the renewal contains a clause' entirely different and which places upon the plaintiffs additional burdens and obligations which were not contained in the first policy. So that so far as 'the contract between the parties for the renewal of the first policy is concerned, the. evidence is clear and convincing, in fact beyond any controversy, that the second policy was not issued in accordance with the terms and conditions of the first policy and that there was no agreement at that time for any change.

Where a policy has been issued by an insurance company, and is about to expire, and a renewal is requested by the assured, or agreed upon between the insurer and assured without anything being said .as to a change in its terms, what is the effect of such a change made by the assured in the terms of the policy ? Has the assured a right to make such changes or is the policy to be issiied upon the same terms and conditions as the former one ? In the case of Hay v. Insurance Company, 77 N. Y., 235, it is said:

“An agreement to renew a policy of fire insurance, in the absence of evidence that any change was intended, implies that the terms of the existing policy are to be continued.
“A party whose duty it is to prepare a written contract according to a previous arrangement, if he prepares one materially changing the terms of the previous agreement, and delivers it as in accordance therewith, commits a fraud entitling the other to relief.
“Equity will reform a contract where there is a mistake on one side and fraud on the other.”

It appears from the facts in this case that the plaintiff and defendant had contracted for the renewal of a policy issued by the defendant company to the plaintiff, and at the time the renewal insurance was effected nothing was said by the parties as to any. change in the conditions of the policy. The new policy contained the following clause:

“In all eases of loss the assured shall assign to this company all his right to receive satisfaction" therefor, from any other person or persons, town or corporation with a power of attorney, to sue for and to recover the same, at the expense of this company. When insured as a mortgagee, the loss shall not be payable until payment of such portion of the debt shall have been enforced, as can be collected out of the original security, to which this policy may be held as collateral, and this company shall then only be liable to pay such sum, not exceeding the amount insured, as can not be collected out of such primary security.”

The holding is that the insertion of this clause in the renewal policy was not in accordance with the terms of the contract, nothing having been said about any change in the terms thereof by the parties, and that consequently the plaintiff was entitled to a reformation of his policy by striking out that clause.

The case of Palmer v. Hartford Insurance Company, 54 Conn., 488, was also an action to reform an insurance policy. The plaintiffs held a policy of insurance of the defendant upon merchandise, and when the policy expired applied to the company for a renewal on the same terms with the expiring one. The company wrote a new policy and received the premium. The plaintiffs, supposing it to be on the same terms with the first policy, did not examine it until after the loss of the property by fire. Some time afterwards they discovered an important variance from the former policy which affected their right of recovery. It was held that the plaintiffs were not guilty of laches in not examining the policy when it was delivered to them, and they had a right to believe that it would be in all essential respects like the first, and these facts entitled the plaintiff to a reformation.

The case of Snell v. Insurance Company. 98 U. S., 85, is also an action for reformation of a policy of insurance. In- this case one of the members of a firm, who were the owners of some cotton entered into an agreement through a local agent of the insurance company to insure the cotton for a certain period for its whole value against loss by fire. The member of the firm who solicited the insurance agreed that the insurance should be made in his name upon the representations1 of the agent that the entire interest of the insurer in the cotton would be thereby protected. The cotton was burned. It was then learned that the policy protected only the interests of the individual member of the firm in whose name it had been issued, and it was held that the plaintiffs were entitled to a reformation of the contract.

The case of Equitable Insurance Company v. Hearn, 20 Wallace, 494, also holds to the same principle, and in the case of Fitchner v. Fidelity Mutual Fire Association, 103 Iowa, 276, it is held:

“A mutual mistake in an application for insurance on a stock of merchandise is clearly established where both the insured and the agent soliciting the application testify that it was agreed that there should be $12,000 of concurrent insurance on the stock, and that the agent in writing the application, erroneously fixed this amount as the limit of concurrent insurance on both the stock and the building containing it.”

So that we think that it is clear from the authorities that, where there is a renewal of a policy without anything being said by the parties as to a change in its conditions, the agreement is implied that the new policy shall be upon the same terms and conditions as the former one.

It appears that the plaintiffs did not read their policy after receiving it, and it is said that their acceptance of it and retaining it until after the fire without reading it was such negligence on their part as would preclude them from now saying that they did not understand its provisions or that it was not in accordance with their contract. The mere failure of an assured to read his application for an insurance policy or to read his policy, especially if it is renewal, does not establish any negligence on his part and he has a right to understand that the renewal will be in accordance with the first policy. Bennett v. Ins. Company, 70 Iowa, 600; Hagan v. Ins. Company, 81 Iowa, 321; Donnelly v. Ins. Company, 70 Iowa, 693; Boetcher v. Ins. Company, 47 Iowa, 353.

Was there a change made in the terms of the first policy by the addition thereto after it had been issued of the clause in controversy? We think not. The policy having been issued without that clause, the burden clearly rests upon the defendant to establish the fact of such change. The authorities cited by counsel for the defendant in this case upon the proposition that to entitle the plaintiff to reform, the proof must be clear and convincing, just as clearly establish the proposition that the party seeking to work a change in the contract after it has been executed must prove his case by more than a preponderance of the evidence. The evidence to establish a change in the contract must be clear and convincing. See the case of Palmer v. Hartford Insurance Company, 54 Conn., above cited.

The burden, therefore, is upon the defendant to show that the change was made by clear and convincing evidence. The only evidence that the change was made is the evidence of E. M. Roberts, the local agent, of the conversation had with Walter Roberts. This is denied by the latter. The plaintiffs had no iron safe. It does not seem likely, if the plaintiffs had been required to insert a clause into their policy which would absolutely preclude them from a recovery in case of failure to keep their books in an iron safe, that they would have been likely to have accepted it without any protest, so that certainly the evidence in this ease is very far from being clear and convincing that such a change was made, or that there was an understanding to that effect, and we think we must hold from the evidence that no such change was made.

We are, therefore, of the opinion and it is the judgment of this court that the plaintiffs are entitled to the relief prayed for and they may have a reformation of the policy sued on by striking ont the clause in question. ,


text:
    TO WHOM A BASTARDY BOND INURES.
    Court of Appeals for Crawford County.
    State, ex rel Jennie Rarick, v. William Bauman and Chris Bauman.
    Decided, March 19, 1915.

      Bastardy — Bond Executed by the Defendant — Inures to the County, Township or Municipal Corporation, and Not to the Mother.

    A bond executed in a proceeding in bastardy, pursuant to Section 12114, General Code, creates no right in favor of the mother of the bastard child, but inures solely to the county, township or municipal corporation in which the proceedings are had, to the end that the public may be saved harmless from charges for the maintenance of such child.

      Edward J. Myers and L. G. Feighner, for plaintiff in error.

      Finley & Gallinger, contra.
    Crow, J.; Kinder, J., and Ansberry, J., concur.
    Error to Common Pleas Court.
   The relator, Jennie Rarick, commenced an action in the Court of Common Pleas of Crawford County, Ohio, by filing a petition against William Bauman and Chris Bauman, containing the following material averments:

That on and prior to June 9, 1908, she was an unmarried woman, and on said date filed a written complaint before a justice of the peace in and for one of the townships within said county, against the defendant, William Bauman, wherein she charged him with being the father of a bastard child of which she had theretofore been delivered; that such proceedings were duly had by and before the said justice of the peace, that on June 10, 1908, said defendant William Bauman was arrested upon a warrant issued under said complaint, and that he was brought before said justice of the peace; whereupon said cause was regularly and duly compromised by and between said relator and said defendant William Bauman, before said justice of the peace, who duly approved said compromise and entered the same upon his docket in said cause; that in said proceeding, and pursuant to the statute in such case made and provided, defendant William Bauman, together with defendant Chris Bauman and Mrs. Chris Bauman, as sureties, entered into a bond dated June 10, 1908, in the penal sum of $500 payable unto the state of Ohio, which said bond was duly approved by said justice of the peace, whereupon defendant William Bauman was released; that the condition of said bond is as follows:

“The condition of the aboim obligation is such, that whereas, the above bound William Bauman has been arrested upon a warrant issued by Edward J. Myers, a justice of the peace in and for said county, on the complaint of Jennie Rariek, an unmarried woman, for being the father of a bastard child, of which the said Jennie Rariek has been delivered; and the said William Bauman hath compromised with and satisfied the said Jennie Rariek in the premises, in pursuance of the law. Now, if the said William Bauman shall save every county, township, and municipal corporation within the state free from all charges toward the maintenance of said bastard child, then this obligation to be void; otherwise to remain in full force. ’ ’

A true copy of such bond is- attached to the petition and made a part thereof, the same being in the words and figures:

“Know all men by these presents, that we, William Bauman, Christ Bauman and Mrs. Christ Bauman are held and bound unto the state of Ohio, in the sum of five hundred dollars, for the payment-of which we jointly and severally bind ourselves.
“Dated this 10th day of June, 1908.
“The condition of the foregoing obligation is such, that, Avhereas, the above bound William Bauman has been arrested upon a AArarrant issued by Edward J. Myers, a justice of the peace in and for said county, on the complaint of Jennie Rariek, an unmarried woman, for being the father of a bastard child, of which the said Jennie Rariek has been delivered; and the said William Bauman hath compromised with and satisfied the said Jennie Rariek in the premises, in pursuance of the law.
“Now, if tbe said William Bauman shall save every county, township., and municipal corporation within the state free from all charges toward the maintenance of said bastard child, then this obligation to be void; otherwise to remain in full force. Wm. Bauman, Christ Bauman, Mrs. Christ Bauman.
“This bond approved by me this 10th day of June, 1908. Edward J. Myers, J. P.”

That since the execution of said bond said Mrs. Christ Bauman has died leaving no estate; that ever since the execution of said bond defendant, William Bauman, has wholly refused, failed and neglected to furnish or contribute to the support, maintenance, care and keeping of said bastard child to whom during the whole of the time subsequent to the execution of said bond, the plaintiff has furnished and supplied necessary food, clothing, shelter and maintenance, the value of which amounts to the sum of $500 and more; that the neglect and refusal of defendant, William Bauman, as aforesaid, has violated and broken the terms and conditions of said bond which has become absolute; that defendant, Christ Bauman, surety as aforesaid, has by reason of said neglect and failure on the part of defendant, William Bauman, become and is now liable to the relator on said bond for the damages which relator has sustained by reason of said neglect and refusal of defendant, William Bauman, to furnish or provide maintenance for said bastard child who is now living.

Defendant, William Bauman, was not served with summons or by publication, nor did he appear in the action.

Defendant, Christ Bauman, demurred to the petition on the grounds: First, that plaintiff has not capacity to maintain the action; second, that the petition does not state facts sufficient to constitute,a cause of action.

The court of common pleas sustained the demurrer, dismissed the petition, and rendered judgment against relator.

By this proceeding in error relator seeks reversal of that judgment.

What are the rights of the complainant in a case in which she has agreed to receive an amount of money or property “in full satisfaction,” during the pendency of the case before the justice of the peace, and such agreement shall have been made or acknowledged by both the complainant and the accused in the presence of the justice of the peace who shall have entered a memorandum thereof upon his docket?

Answer must, of course, be found solely in the statutory provisions governing the subject of bastardy. These clearly disclose that all rights of complainant in such proceeding, and the entirety of obligation and consequent liability of the signers of the bond requisite to be given when there has been a compromise effected between her and the accused, and payment or securing of payment of the amount of money or transfer of the property which complainant agrees to receive from the accused in full satisfaction, has been made, were defined and controlled at the time of execution of the bond in issue herein, by Section 5617, Revised Statutes, which is now, with slight changes in phraseology, Section 12114, General' Code.

The only liability on the bond thus provided for, rests upon the one condition of saving any county, township or. municipal corporation within the state free from all charges for the maintenance of such bastard child, and whenever a bond has been thus given, it must be construed in the light of the attributes defined and limited by said section, whatever may be the form of the bond.

The other statutory proceedings in bastardy have to do with obligation and liability by way of recognizance for appearance of accused, and hence are unimportant in the disposal of the question in the present case.

Indeed, our legislation on the subject of bastardy is founded upon the public concern, although in the proceedings so provided, certain rights are created for the benefit of and vouchsafed to the complainant.

The proceeding is neither a civil action nor a criminal proceeding, hut in some features appears to possess certain attributes belonging to both classes of eases.

One of the privileges of the mother of a bastard child, preserved to her by a proceeding in bastardy initiated by her, is to compromise and to receive under such compromise such sum of money or such property as she may agree to accept, or to permit the cause to proceed to trial in the court of common pleas, and receive such recovery as may result to her therefrom.

In the latter event, no bond for the saving of any county, township or municipal corporation free from all charges for the maintenance of the child is provided for, but another undertaking is contemplated, namely the one mentioned in Section 12123, General Code.

It is urged by counsel for the relator that the case of Hazzard v. State, 6 Dec., Re., 1081 (10 Am. L. Rec., 308), affirmed, no op., Hazzard v. State, 11 Bull., 252, is authority for the maintenance of an action by the complainant, upon such a bond as the one in issue herein.

The diligence of counsel for demurrant, who has furnished us a copy of the printed record in that ease, enables us to say with certainty that the controversy there determined is wholly dissimilar from the question before us.

The following is a copy of the relator’s pleading in the Hazzard case.

“The plaintiff states, that on August 23, A. D. 1878, in a certain proceeding in bastardy, then pending before E. Gilligan, Esq., a justice of the peace within and for said county of Hamilton, wherein the said Anna Dickson was plaintiff and the said Charles Hazzard was defendant, an order was entered of record by said justice of the peace, that the said Charles Hazzard enter into a recognizance in the sum of $500 for the appearance at the term of this court then next ensuing for said county of Hamilton, to answer to the complaint of said Anna Dickson, in said proceeding, and to abide the order of the court therein; that afterwards, to-wit, on August 29, A. D. 1878, in pursuance of and in compliance with the said order, so as aforesaid entered of record by the justice of the peace, the said defendants appeared before said justice of the peace, and jointly and severally acknowledged themselves to owe and be indebted to the state of Ohio, for the use and benefit of the township of Cincinnati, in the county aforesaid, in the sum of $500; but said acknowledgement and recognizance was on the condition, that if the said Charles Hazzard should be and appear before this court on the first day of the term thereof next to be holden within and for •said county of Hamilton, continue from day to day, and then and there answer to said complaint of said Anna Dickson against him in said proceeding, and abide the order of this court thereof, then the said recognizance should be void, otherwise to be and remain in full force. Said recognizance was duly entered of record by said justice of the peace, .and signed and sealed by said defendants, the said Charles1 Hazzard signing the same by the name of Charles E. Hazzard.
“Afterwards, towit, on September 11, A. D. 1878, a duly certified transcript of the record made by said justice of the peace of said proceeding, including said recognizance, was filed in the office of the clerk of the court, and at the November term, A. D. 1878, of this court, said cause and proeeding was, by order of the court, continued.
“Afterwards, at the January term, A. D. 1879, of this court, the said Charles Hazzard being duly called, came not, but made default and the said Edward Hazzard, being duly called to produce in court the body of said Charles Hazzard,. came not, but made default, whereupon said recognizance was duly forfeited.
“And a jury being duly impaneled and sworn, to try the matter put in question in said proceeding, found said Charles Hazzard guilty, whereupon he was duly adjudged the reputed father of the child mentioned in said proceeding, and charged with the maintenance thereof in the sum of $300, and to pay the costs of said proceeding, which he has refused and still refuses to do.
“Therefore the plaintiff demands judgment against said defendants, in the sum of $500.”

It is readily manifest that there had been no compromise of the ease, but on the contrary the accused had been ordered to enter into a recognizance for his appearance at the court of common pleas.

One of the conditions of the recognizance is averred to have been to answer the accusation and abide the order of the court as required by Section 5618, Revised Statutes, now Section 12115, General Code. And, as pleaded, one of the orders of the court was that the accused stand “charged with the maintenance” of the child in the sum of $300.

We therefore hold that the mother of a bastard child has no right to recover on the bond provided for by Section 5617, Revised Statutes, now Section 12114, General Code.

It follows that there was no error in sustaining the demurrer and that the judgment must be affirmed.

With the foregoing conclusion,. the dictum of Day, J., in State v. Van Vorhis (9 C. C., 239, 4 Circ. Dec., 30), will be found to harmonize.


text:
    ENCROACHMENT UPON A HIGHWAY BY A RAILWAY.
    Court of Appeals for Hamilton County.
    The Board of County Commissioners of Hamilton County v. The Cincinnati, Hamilton & Dayton Railway Company.

    Decided, August 9, 1913.

      Roads~-Bncroachment Upon, by the Abutments of an Overhead Railway Bridge — -Title to-Part of the Roadway Not Acquired by Prescription.

    The claim of the railway company of title by adverse possession to a part of the county road in question can not be maintained as against the charter provision of the original turnpike company safeguarding the rights of the traveling public thereon for all time.

      Pogue, Campbell & Groom, for the plaintiff.

      Waite <& Schin del, for the. railway company.
    Jones (E. H.), J.; Swing, J., and Jones (O. B.), J., concur.

      Affirming County Commissioners v. C., II. & D. Railway Co., 12 N.P.(N.S.), 129; judgment of the Court of Appeals reversed, see journal entry, C., H. & D. Railway Co. v. County Commissioners, 90 Ohio State.

   We find upon the issues joined in favor of the plaintiff; and that the prayer of its petition for a mandatory injunction herein should be granted.

With the exception of the question of title by prescription we feel that the questions in this case are decided by the Supreme Court of our state in its opinion in the case of Lake Shore & Michigan Southern Ry. Co. v. City of Elyria, 69 Ohio State, 414, and upon that question the learned judge who wrote the opinion in that ease stated:

“As to the plea of the statute of limitations made in the answer it is sufficient to say that it is the well settled law of this state that encroachments upon a public highway never ripen into a title by adverse possession.”

It is true that there was no issue of the statute of limitations in that ease, and it may be well claimed that it is not a con-’ trolling authority upon that point.

In determining whether or not a title has been acquired by adverse possession or prescription the court must be governed by the facts in each particular case, so that in this case we have been unable to gather much assistance from cases cited by counsel in their briefs and oral arguments. Looking for a moment at the facts in this case, it appears that this road ivas opened and used by the turnpike company shortly after its original charter in 1834, and whether on the particular part crossed by the 0., H. & D. Railway, it was a state or county road prior to becoming a turnpike the evidence is not clear, but it was- in existence at least sixty feet wide as a public highway at the time the C., H. & D. Railway was built, and the railway company has failed to shoAv any title to any part of the land included within this highway. Its only claim is that the abutments or their predecessors have existed there since about the year 1851, but exact proof has not been made. The original construction of these abutments was certainly not intended to' close the highway or incommode the traveling public irpon it and at the time of their original construction there remained .undoubtedly sufficient room to accommodate the public travel between them. It can not be assumed that their construction and use was under a claim that the railway company could lawfully exclude the public from the use of any part of said highway, and no claim can be made by the railroad company under title by prescription that would not be much stronger if they could shoAv a title by grant.

In the Elyria case above cited the court has shown that municipal authorities had no poAA’er to make a grant of a public highway for the purposes of such a pier or abutment that could prevent the public from demanding its removal when the necessity of travel required it.

The turnpike company becomes, in a way, a trustee for the state, and no power is shown in a turnpike company to grant its turnpike or such part thereof to a railroad company as would interfere with the rights of the traveling public thereon. The charter under which this turnpike was granted by a special law found in 32 O. L., at page 157, in which the state reserved the right to purchase the entire turnpike, or to allow a county to purchase such part of the turnpike as lay within its boundary, a.t any time, upon the payment of a certain sum, and convert the .toll turnpike into a free public highway, shows that the public retained a valuable interest in the turnpike as a public highway which could not be granted away, and which under the ordinary rule that the statute of limitations can not be pleaded against the state would render any claim made by the defendant railway company by adverse possession insufficient. Outside of the statutory right retained in the original charter the ordinary rule is that an abandoned turnpike becomes a public highway.

Judgment will therefore he rendered for plaintiff, as above stated.