author: SAYRE, J.

text:
    RAILROADS.
    [Lawrence (4th) Circuit Court,
    November Term, 1912.]
    Jones, Walters and Sayre, JJ.

      Benjamin S. Warren, et al., v. Arthur J. Hannon.
    1. Act 99 O. L. 25 Void as to Interstate Commerce, Valid as to Intrastate.
    The Act 99 O. L. 25 (Gen. Code 9017) insofar as it undertakes to impose a liability on common carriers by railroad while engaged in interstate commerce is void, but insofar as it undertakes to impose the same liability on such carriers while engaged in intrastate commerce is a valid enactment.
    2. Failure to Distinguish between Railroad Carriers Engaged in State and Interstate Commerce.
    The language of the act which divides railroads ihto those which are in whole, and those which are in part, within the state does not distinguish between common carriers by railroad, when engaged in interstate commerce and when engaged in intrastate commerce, furnish 'an' universal rule applying to all eral regulation, would apply to all commerce; but there is nothing in the act to warrant the presumption that the legislature would not have passed it were it to he superseded, as it was, hy the act oi congress of April 22, 1908, insofar as it applied to interstate commerce.
    3. State and Federal Acts Eliminating Rule of Fellow Servant Doctrine Universal.
    The Act of Congress passed April 22, 1908, and said Statute of Ohio, impose upon common carriers by railroad a liability for injury to any of their employes resulting from the negligence of any other of their employes, and thus eliminate the defense founded upon the negligence of a fellow servant. These two acts, the one applying to interstate commerce and the other to intrastate commerce, furnish a universal rule applying to all actions, for personal injuries, to an employe of common carriers by railroad, caused by the negligence of any other employe.
    4. Failure of Petition for Negligence of "Railroad to Distinguish between State and Interstate Commerce does not Defeat Recovery.
    Hence, in an action, for personal injuries, brought by a locomotive engineer, when injured in the discharge of his duties on one train, in a collision caused by the negligence of the ' conductor of the other train, an instruction given to the jury, substantially in the language of the second paragraph of Sec. 1 of the act of February 28, 1908, there being no averment in the pleadings nor evidence in the case as to whether, at the time he was injured, he was engaged in interstate or intrastate commerce, is a proper instruction.
    [Syllabus by the court.]
    Error to common pleas court.

      E. H. Willis, Cooper & Russell, for plaintiffs in error.

      A. R. Johnson, for defendant in error:
    Cited and commented upon by the following authorities:— Snyder v. Railway, 60 Ohio St. 487 [54 N. E. Rep. 475] ; Railway v. Margrat, 51 Ohio St. 130 [37 N. E. Rep. 11]; Little Miami Ry. v. Stevens, 20 Ohio 416; Baltimore <& O. Ry. v. Camp, 65 Fed. Rep. 953 [13 C. C. A. 233]; Toledo Elec. St. Ry. v. Bateman, 8 Circ. Dec. 220 (16 R. 162) ; Lake Shore <& M. S. Ry. v. Hunter, 7 Circ. Dee. 206 (13 R. 441); Baltimore & O. Ry. v. Sutherland, 4 Circ. Dec. 115 (12 R. 309); Feltin v. Harbeson, 104 Fed. Rep. 737 [44 C. C. A. 188]; Rouse v. Hornsby, 67 Fed. Rep. 219 [14 C. C. A. 377]; Brooks v. Railway, 207 U. S. 463 [28 Sup. Ct. Rep. 141; 52 L. Ed. 297]; Detroit T. & I. Ry. v. State, 82 Ohio St. 60 [91 N. E. Rep, 869; 137 Am. St. Rep. 758]; McGarvey v. Railway, 83 Ohio St. 273 [94 N. E. Rep. 424]; Peirce v. VanDusen, 78 Fed. Rep. 693 [24 C. C. A. 280; 69 L. R. A. 705]; Eennington v. Georgia, 163 U. S. 299 [16 Sup. Ct. Rep. 1086; 41 L. Ed. 166]; Missouri Pac. Ry. v. Mackey, 127 TJ. S. 205 [8 Sup. Ct. Rep. 1161; 32 L. Ed. 107]; Eunter v. Bridge Co. 85 Fed. Rep. 379 [29 C. C. A. 206; 54 U. S. 653]; Tullís v. Railway, 175 TJ. S. 348 [20 Sup. Ct. Rep. 136; 44 L. Ed. 192]; Pittsburgh, C. C. & St. L. Ry. v. Montgomery, 152 Ind. 1 [49 N. E. Rep. 582; 69 L. R. A. 875; 71 Am. St. Rep. 300]; MondX>u v. Railway, 223 TJ. S. 1 [38 L. R. A. (N. S.) 44; 56 L. Ed. 327]; State v. Railway, 36 Mont. 582 [93 Pae. Rep. 945'; 15 L. R.' A. (N. S.) 134; 13 Ann. Cas. 144]; Smith v. Alabama, 124 TJ. S. 465 [8 Sup. Ct. Rep. 564; 31 L. Ed. 508]; Cleveland, C. C. & St. L. Ry. v. Elinois, 177 TJ. S. 514 [20 Sup. Ct. Rep. 722; 44 L. Ed. 868]; Nashville, C. & St. L. Ry. v. Alabama, 128 TJ. S. 96 [9 Sup. Ct. Rep. 28; 32 L. Ed. 352]; Western Union Tel. Co. v. James, 162 TJ. S. 650 [16 Sup. Ct. Rep.’ 934; 40 L. Ed. 1105]; Chicago & N. Ry. v. Fuller, 84 U. S. (17 Wall.) 560 [21 L. Ed. 710]; Louisville <& N. Ry. v. Kentucky, 161 TJ. S. 677 [16 Sup. Ct. Rep. 714; 40 L. Ed. 849]; New York, N. E. & E. Ry. v. People, 165 TJ. S. 628 [17 Sup. Ct. Rep. 418; 41 L. Ed. 853] ; Chicago, M. & St. P. Ry. v. Solan, 169 TJ. S. 133 [18 Sup. Ct. Rep. 289; 42 L. Ed. 689]; People v. Railway, 198 N. Y. 369 [91 N. E. Rep. 849; 29. L. R. A. (N. S.) 240; 139 Am. St. Rep. 828; 19 Ann. Cas. 811]; Lloyd v. Railway, 151 N. C. 536 [66 N. E. Rep. 604]; Reid v. Railway, 150 N. C. 753 [64 N. E. Rep. 874; 17 Ann. Cas. 247]; Sinnot v. Davenport, 63 TJ. S. (22 How.) 227 [16 L. Ed. 243]; McAllister v. Eartzell, ■ 60 Ohio St. 69 [53 N. E. Rep; 715]; Sites v. Eaversiock, 23 Ohio St. 626; Beecher v. Dunlap, 52 Ohio St. 64 [38 N. E. Rep. 795]; Butler v. Kneeland, 23 Ohio St. 196; State v. Esswein, 30 O. C. C. 515 (11 N. S. 225).

      Affirmed, no op., Warren v. Hannon, 90 O. S. 000; 59 Bull. 43.

   SAYRE, J.

On December 13, 1910, the plaintiffs in error, as receivers of the Detroit, Toledo and Ironton Railway Company, were' operating a railroad extending from Detroit in the state of Michigan, to Ironton in the state of Ohio, and the defendant in error was employed by them as a locomotive engineer; and on said day he was ordered by them to take a freight train, made up of thirteen freight ears and a caboose, from Ironton to Lisman Junction, a station on said railroad about eleven miles north of Ironton in Lawrence county. When about two and a half miles north of Ironton the train, on which defendant in error was engineer, collided with another train, coming south, and he, then and there, received the injuries on account of which he brought this action in the court of common pleas of said county. In that court he ^recovered- a judgment for $19,000 and the object of this proceeding in error is to reverse that judgment.

In his petition filed in the court of common pleas, Hannon stated that his injuries “were caused .by reason of the carelessness, negligence and unskillful management of the defendants, their agents and employes in the discharge of their duties. ’ ’

The answer of the defendants admitted the collision and the injury to plaintiff and denied that the injury was caused by reason of any carelessness, negligence or unskillful management of the defendants in the discharge of their duties, but averred that if the injury was caused by careless and negligent acts then those acts were the acts of fellow servants of plaintiff who were employed in conjunction with said plaintiff in the performance of a common business, and that neither of said fellow servants, the engineer and conductor upon said south bound freight train, nor said plaintiff, while engaged in said business, had any control or authority over each other.

The jury found, in response to a special interrogatory, that the proximate cause of the injury was the failure of the conductor of the south bound train to procure an order or clearance card at Lisman Junction. Before argument at the request of counsel for plaintiff, and over objection of defendants, the court gave the following instruction:

“If you find from a preponderance of the evidence that defendants were operating a railroad, a part of which was in the state of Ohio, and that plaintiff was an employe of defendants as an engineer upon one of its railroad trains and operating one of the railroad engines, the accident by which plaintiff was injured occurred by a head-on collision in Lawrence county, Ohio, and that plaintiff was in the discharge of his duties as an engineer upon said engine, as an employe of the defendants at said time of said collision, and the receiving of the injuries complained of by plaintiff, and that said collision was caused by the carelessness and negligence of any other employe or agent of defendants while in the discharge of or failure to discharge his duty or duties as such employe of defendants, then in that event said defendants would be liable to plaintiff for any and all injuries plaintiff received by reason of said collision.”

The claim of the defendants is that the act of congress approved April 22, 1908, is exclusive and supersedes the acts of the legislature of the state of Ohio on the same subject; that the statute, 99 O. L. 25, is invalid and that as the plaintiff does not show he was injured while he was engaged in interstate commerce he can not recover.

It is not stated in the pleadings, nor shown in the proof whether defendant in error, when injured, was engaged in interstate or intrastate commerce. The special charge given by the trial court permits a recovery irrespective of the character of the business in which plaintiff was engaged when injured.

The act of congress approved April 22, 1908, (35 Stat. at L. 65, Chap. 149, U. S. Comp. Stat. Supp. 1909, p. 1171) reads in part as follows:

“That every common carrier by railroad, while engaging in commerce between any of the states-shall be liable in damages to any person suffering injury while he is employed by such carrier in said commerce-for such injury -resulting in whole or in part from the negligence of any of the officers, agents or employes of said carrier-.”

The act of February 28, 1908 (99 O. L. 25, Gen. Code 9017), reads in part as follows:

“Every railroad company operating any railroad which is in whole or in pairt within this state shall be liable for all damages sustained by any of its employes by reason of personal injury-.

2. While any such employe is engaged in operating, running, riding upon or switching passenger, freight or other trains, engines or cars and while engaged in the performance of his duties as such employe, and when such injury shall have been caused by the carelessness or negligence of any other employe, officer or agent of such company in the discharge of or for failure to discharge his duties as such.”

It is evident that this statute imposes upon all common carriers by railroad the same liability for injuries to their employes, whether they are engaged in interstate commerce or otherwise.

That the federal statute passed April 22, 1908, imposing a liability on common carriers by railroad for injuries to their employes superseded the act of the Ohio legislature (99 O. L. 25) insofar as the latter act undertakes to fix such liability while said carriers are engaged in interstate commerce, and in actions to recover damages for injuries received while the plaintiff was engaged in such commerce, to eliminate the defense that the negligence which caused the injury was the negligence of a fellow servant, is shown by the cases of Mondou v. Railway, 223 U. S. 3; Northern Pac. Ry. v. State, 222 U. S. 369; State v. Railway, 136 Wis. 407 [117 N. W. Rep. 686; 19 L. R. A. (N. S.) 326.

The power of congress to regulate or limit the liability of common carriers to their employes while engaged in interstate commerce, and to provide what shall and what shall not be a defense- in a judicial tribunal in a case arising from an injury received while the person injured was engaged in such commerce, is paramount.

Within the field, where by the constitution congress can act, its power is supreme.

If congress has exercised that power and passed a law, regulating the particular subjects mentioned, the state legislature then is without power to legislate on the same subject, and any and all of its acts on that subject, immediately upon the passage of the federal legislation, become absolutely void.

But the Ohio statute of February 28, 1908, not only undertakes to legislate as to liability of railroads engaged in interstate commerce, but as to the liability ‘of those engaged in state or domestic commerce. It will be conceded that the legislature has power to legislate concerning the persons and instrumentalities engaged in such state or domestic commerce, so that, if the invalid provisions of this statute can be separated from the valid, the act may yet remain effective insofar as it deals with the subject of state commerce.

Is the state statute separable ? Can the part of the statute which applies to interstate commerce be separated from the part which applies to state commerce? The language of the first sentence of the act is: “Every railroad company operating any railroad which is in whole or in part within the state shall be liable-.” It has been held that if this statute related solely to. railroads wholly within the state, it would then only apply to state commerce. But is this reasoning sound? Because a railroad lies wholly within a state it is not for that reason beyond the reach of federal regulation. If it is engaged in interstate commerce it is within the control of federal power precisely as if its line extended from one state into another or through several states. Railroads lying wholly within a state may, and generally are, engaged in interstate commerce by reason of their connections with other carriers. The line which divides the state and federal power to legislate concerning the liability of railroads to their employes, is not defined by the location of the railroads but by the business in which they are engaged. Hence, a law which divides railroads into those which are in whole and those which are in part, within the state, does not distinguish at all between those engaged in interstate commerce, and those engaged in state or domestic commerce. The act operates upon all railroads alike which lie either in whole or in part within the boundaries of the state.

Since the enactment by congress of the statute of April 22, 1908, may not the act of February 28, 1908 (99 O. L. 25), be construed so as to apply only to the liability of common carriers by railroad while engaged in state commerce ? In the case of Howard v. Railway, 207 U. S. 463 [28 Sup. Ct. Rep. 141; 52 L. Ed. 297], in which case the Supreme Court of the United States held invalid the first employer’s liability act, it was decided that that act, which attempted to regulate both state and interstate commerce, could not be construed to apply to a regulation of interstate commerce alone because

(a) It would require the court to read into the act the words “when engaged in interstate commerce,” which would restrict and limit the act when applied to the District of Columbia and the territories, to interstate commerce when the congress in those political divisions has full power to regulate both state and interstate commerce, and would thus destroy the act in an important particular. “To write into the act the qualifying words • therefore would be to add to its provisions in order to save it in one respect and thereby to destroy it in another; that is, to destroy in order to save, and to save in order to destroy. ” And because

(b) The court held that it was unable to say that the statute would have been enacted had its provisions been limited to the regulation of interstate commerce alone.

In the ease of State v. Railway, supra, it was held that the state statute prohibiting any railroad company from requiring any telegraph or telephone operator to remain on duty for more than one period of eight consecutive hours, when the federal statute made it unlawful to remain on duty for a. longer period than nine hours in any twenty-four hour period, could not be separated so as tp construe it as applicable to state commerce alone, because the court held that it was not certain that the act would have been passed if the legislature had known that, it would be construed to apply only to domestic commerce.

“The impracticability if not impossibility of limiting hours of work devoted to domestic commerce is so obvious as to preclude belief in any such legislative purpose.”

It is evident that a telegraph operator would be engaged in interstate and domestic commerce at the same time, and it. would be impracticable if not impossible to separate his work in that respect, so that it would be impossible to enforce an eight hour day as to domestic commerce and a nine hour day as to interstate commerce. It is easy to perceive why the court would arrive at the conclusion in construing that kind of a statute, that no such separation of its provisions could be made.

But is the state statute under consideration here beset with any such difficulties as those above mentioned? Both eases above referred to uphold the position that a valid provision of a statute may be separated from the invalid, if the same can. be done; and it is reasonable to suppose that the legislature would have enacted it if it had been known that the act would have been construed to apply only to domestic commerce.

There would be no difficulty about enforcing the Ohio and federal statutes at the same time, as all that would be required would be to prove whether the person injured was engaged in one or the other kind of commerce, which certainly is not a difficult undertaking, to say nothing of an impracticable or impossible one.

In our state it has been held that “where the provisions of an act are so inseparably connected in subject-matter and so relate to each other as to give rise to a presumption that a part would not have been enacted without the whole, the entire act is void.” Little Miami Ry. v. Greene Co. (Comrs.) 31 Ohio St. 338, 344.

And again:

“One part of a section of a statute may be void for want of conformity to the constitution, without affecting the validity of the remainder, unless the objectionable and unobjectionable portions are essentially and inseparably connected in substance, or, are so interdependent that the general assembly would not have enacted the one without the other.” Treasurer v. Bank, 47 Ohio St. 503 [25 N. E. Rep. 697; 10 L. R. A. 196].

Assuming, for the purpose of the discussion, that the presumption would arise that the statute under consideration would not have been passed if the members of the legislature had known that the courts would finally construe it to apply only to domestic commerce, or if they had known that an act of congress would supersede the state statute as to interstate commerce, may not consideration be had of the probable attitude of the members of the legislature toward the subject if they had known that the federal act would impose upon common carriers by railroad the same liability which the state act imposed, and if they had known that the defense founded on the negligence of a fellow servant would thus be eliminated by the superseding act?

If the courts may speculate with the possible or probable state of mind of the persons, composing the legislature, toward an act which has been held invalid in part, may not they also speculate as to the state of mind of the legislators, as to what they might have done, if a part of their enactment which is rendered nugatory, would be immediately superseded by an act of congress containing the same terms, imposing the same liability, and eliminating the same objectionable defense? What person, if he would vote for the legislation at all, could or would refuse to vote for the statute here construed, with knowledge that it would be superseded by an act of congress that would in effect reenact the same provisions that were thereby rendered void?

We are here presented with a new and curious situation. The cases which we have above referred to, Mondou v. Railway, and State v. Railway, supra, concern statutes which were held invalid in part, because the objectionable and unobjéetionable portions were so connected that it might be presumed that a part would not have been enacted without the whole, and all the provisions of the acts were held invalid. But in those cases the part that was swept away because unconstitutional was not replaced or superseded by a like provision in the federal law.

In our ease when the state statute was superseded by the federal, the latter supplied completely and fully the provisions applicable to interstate commerce which had been swept away.

But another line of reasoning may be suggested. These employer’s liability laws are enacted to protect, as far as may be, the employes of common carriers from injuries and death while engaged in the work for which they are employed. Can it be fairly contended that the legislature would refuse to enact ■legislation protecting them while engaged in domestic commerce simply because they were unable to protect them while engaged in all commerce? Would the legislature because it knew congress might exercise its power and the state law be superseded, by a federal one on the same subject, refuse to af■ford the protection which alone could be afforded by state legislation? It seems to us.there is but one answer to-this question.

In the act to compel common carriers by railroad to equip their cars with automatic couplers, the Ohio legislature (98 O. L. 25) limited the application of the act to domestic commerce, and the purpose of that act was the sarde as the employer’s liability act, namely, to promote the safety of employes of common carriers.

In authority precisely in point is the ease of Philadelphia & R. Ry. v. Commonwealth, 82 U. S. 232 [21 L. Ed. 146], as construed in Albany Co. (Supvrs.) v. Stanley, 105 U. S. 305 [26 L. Ed. 1050].

The court is firmly of the opinion that the legislature would have passed the act of February 28, 1908, were it to be superseded by the act of. April 22, 1908, applying to interstate commerce.

There is then in operation in Ohio, side by side, two laws, one federal, the other state; the one relating to the liability of common carriers to their employes while engaged in interstate commerce and the other relating to the liability of common carriers to their employes while engaged in state commerce. A locomotive engineer, while engaged in operating a locomotive drawing cars on a railroad, must be engaged in either state or interstate commerce. There are no other classes of commerce, known to these laws, limiting such liability. Both laws provide that in case of injury to an employe engaged in the performance of his duties he may recover damages, for such injury, when such injury was caused by the negligence of any other employe, and the defense founded on the negligence of fellow servant can not therefore be made.

These two provisions, the one or the other therefore applyr ing to each and every ease, furnish an universal rule governing all actions for personal injuries to an employe of common carriers by railroad caused by any other employe.

The validity of paragraph two of section one of the act of February 28, 1908, would seem to have been established by the 'circuit court of tbe first circuit in Pittsburgh, C. C. & St. L. Ry. v. Francis, 32 O. C. C. 189 (13 N. S. 167), inasmuch as that judgment was affirmed by the Supreme Court in Pittsburgh, C. C. & St. L. Ry. v. Francis, 83 Ohio St. 520, without report.

The special instruction given by the trial court was therefore a correct and proper instruction.

This conclusion determines all the other questions in the case and the judgment of the court of common pleas will be Affirmed.

Jones and Walters, JJ., concur.


source: Caselaw Access Project

author: WALTERS, J

license: Public Domain

text:
    DOWER — MORTGAGES.
    [Pickaway (4th) Circuit Court,
    1912.]
    Jones, Walters and Sayre, JJ.
    George Kern, Admr. v. Rilla J. Kern et al.
    1. Mortgage Condition Broken before Marriage, Widow is Dowable out of Surplus after Mortgage Paid, not of Entire Purchase Money.
    Where land is mortgaged by the husband and the condition is broken before marriage and after marriage the husband dies, upon sale of the land by his administrator for payment of his debts, and the proceeds of the sale of the mortgaged land are large enough to pay the mortgage debt and leave a surplus sufficient to allow the widow dower in the entire proceeds, held that the widow is only dowable of the surplus proceeds after paying the mortgage debt and not out of the entire purchase money.
    .2. Husband not Seized of Estate of inheritance.
    The husband was not seized of an estate of inheritance during coverture in the land, and at the time of his death he owned but an equity therein.
    :3. Dower Measured by interest of Deceased Consort.
    The widow’s right to dower in the land of her deceased husband is to he measured by his interest therein, and can rise no higher.
    -4. Mortgage Condition Broken Legal Title is in Mortgagee.
    The condition in the mortgage having been broken before marriage, the legal title at that time was in the mortgagee.
    [Syllabus approved by the court.]

      Charles Gerhardt, for plaintiff.

      Barton Walters, for defendants.
   WALTERS, J

Philip Kern, a resident of this county, died in 1910, intestate. He was twice married. Before his marriage to his second wife he had given two several mortgages. He intermarried with his second wife, now his widow, Billa J. Kern, in 1909, There were no children of such marriage. At the time of his marriage the mortgages given upon the land in question were ■due and unpaid. After his death proceedings were instituted in the probate court to sell the land for the payment of debts; the widow was made a party by answer, and comes in and waives the setting off of her dower by metes and bounds, and elects to take the value of the same out of the proceeds of the sale. The widow claims she should be endowed as of the whole proceeds of the sale; the heirs claim that she should be endowed only out of the surplus that may remain after the payment of the mortgages.

The sole question presented to this court is, as to whether or not the widow’s dower should be calculated on the whole of the purchase money, or only upon the surplus that may be left after the payment of the mortgages.

This question has arisen in different ways and in different forms and phrases, in the Supreme Court of the state, in different cases. It is claimed on behalf of the widow, in the first place, that the husband was seized of such an estate at the time of marriage and during the coverture, that she is entitled to dower in the whole premises. It seems to this court that a good deal of attention should'be paid to the principles governing the assignment of dower, and the kind of an estate that the husband must have before the widow is entitled to dower, and it will shed a great deal of light upon the solution of this question. It has been already stated that at the time the widow married Philip Kern, that these mortgages were resting upon this land, and'that they were due. The effect of that matter is to transfer the legal title in the premises from the mortgagor to the mortgagee and the mortgagee has a deed, not an absolute, but a conditional deed to the premises.

Philip and his first wife executed this conditional deed to convey absolute title to the mortgagees in this case, conditioned; however, upon the fact that they pay the 'money as; stipulated in the conditional clause, and in case they do not. pay the debt as it is written in the mortgage deed, and in the conditional cjause, that then the title to the premises shall become absolute. The effect of that deed of mortgage, and the-condition in the deed, is such that our Supreme Court has decided several times, and it is the law in Ohio, that when any condition in a mortgage is broken that the legal title to the-mortgaged premises passes from the mortgagor to the mortgagee ; in other words, the condition .having been broken, the conditional clause in the mortgage or in that absolute part of the deed then becomes operative, and the conditions not having-been complied with, the deed passes the legal title over to the-mortgagee. That is the condition of affairs at the. time the-widow here married Philip Kern. The mortgagees in this; instance owned the fee simple title to the real estate; the legal, title by the conditions having been broken passed to mortgagees.. Philip Kern then retained only an equity in these premises,, viz., the right to redeem by paying the mortgages.

The Supreme Court has decided that the legal title passes; so effectively from the mortgagor to.the mortgagee when the condition is broken, that the mortgagee may maintain an action in ejectment against the mortgagor and recover the possession of' the premises; in order to maintain an action in ejectment th& person seeking possession of the premises must have the legal title thereto. Therefore at the time the widow here married Philip Kern, the condition of the mortgage having become broken,, and the deed having become absolute, and the legal title' having passed from Philip Kern to the mortgagee, the wife was endowed at the time of the marriage of an inchoate right in whatever-interest Philip had in these premises, and he had, as I said before, at that time only an equitable interest, a right to-redeem.

The statute in reference to dower is, that the husband must have been seized during coverture of an estate of inheritance, or he must have been seized of an equitable estate at the time of his death. Philip Kern had no legal estate at the time of his death, nor was he seized of an estate of inheritance in this land at any time during coverture; he was only seized or had the title to or ownership in an equitable interest in this farm, a right to redeem. That being so-it would seem to appear from the very language of the statute, and from the very condition of the title to this land, that the wife could only-take such interest in the husband’s property, at the time of marriage or during coverture, as he had. Her rights could not rise any higher than his. He only having an equitable estate in the land at the time of marriage, and at the time of his death, his widow could only take such dower in such land as he had a beneficial interest, in. That is the measure. When we come to look at the authorities there does not seem to be any conflict in the authorities in Ohio on the subject. Possibly some judge in delivering an opinion has made a statement that would seem to be in conflict with some other eases decided by our Supreme Court, but when you apply the facts of the particular cases, to the statements made by the judge in the opinion, and look at the underlying principle that must be observed, we can not see that there is any particular conflict in the cases, especially since the Supreme Court has overruled the ease of State Bank v. Hinton, 21 Ohio St. 509. Rands v. Kendall, 15 Ohio 671, decided in 1846, has never been overruled or modified in any particular. The syllabus is as follows:

“Where land is mortgaged by the husband, and the condition is broken before the marriage, and the equity of redemption is released by the mortgagor during coverture; his widow is not entitled to dower, after his decease.
“To entitle the widow to dower, her husband must have been seized of a legal estate of inheritance during the coverture, or of an equitable interest at the time of his death.”

It is claimed that in Ely v. McGuire, 2 Ohio 223, the Supreme Court said that rule only applied between mortgagor and mortgagee, but in this case the court is of the opinion that it carries further, that is, to all parties, that the legal title is vested in the mortgagee.

As late as 1881, the ease of Abbott v. Bosworth, 36 Ohio St. 605, it was held in the second syllabus:

“To entitle a widow to dower in an equitable estate of her husband he must have owned said estate at the time of his decease.”

That is exactly like the syllabus in the Rands'case which I just read a moment ago, and they approve it and follow it. In the Rands case, the mortgage had become absolute, and they decided, therefore, that he didn’t in that case have an estate of inheritance at the time of marriage, and he didn’t die seized of an equitable estate, and in that case, therefore, she couldn’t have dower at all. In this case, Philip Kern died seized of an equity, a right to redeem.

It is claimed that the cases, Kling v. Ballentine, 40 Ohio St. 391; Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627], and a case in Emmert v. Elyria, 27 O. C. C. 353 (6 N. S. 381); Mickey v. Conine, 27 O. C. C. 369 (6 N. S. 321), affords authority for the allowance of dower calculated upon the whole purchase money.

It might be observed that in the case reported in Kling v. Ballentine, and Mandel v. McClave, supra, that these cases were cases where the wife and the husband joined in the mortgage, the husband owing the entire land or estate at the time the mortgage was given. The land was sold. Held in, those cases that the wife’s dower should be calculated not only upon the surplus that may remain after the payment of the mortgages, but upon the entire purchase money, and that, upon the theory, and upon the principle that the husband during coverture was seized of an entire fee simple property, and that her right to dower must be measured by the amount and quantum of the estate that he owned during coverture, which was the entire estate; and that the wife in a case of that kind is looked upon as a mere surety or security for the debt of her husband, and that she only so far forthgives her inchoate dower interest in her property when she signs the mortgage, as that it may be necessary to take her inchoate dower interest for the payment of her husband’s debt, but if sufficient remains of the husband’s alone, if his estate is sufficient to pay the debt, then she stands in the light of a surety, and his estate having been sold for enough to pay the rest, leaving' a surplus, that she, therefore, is entitled to do.wer in the whole proceeds of the land that we consider equitable. So that in the case of Kling v. Ballentine, and Mandel v. McClave, supra, those cases are distinguished from the ease at bar.

The case of Culver v. Harper, 27 Ohio St. 464, is a case, we think, in line and harmony'with our ruling in the case at bar. The syllabus is as follows:

“The widow of a purchase money mortgagor, mortgage given before marriage, and property sold by the executors to pay the mortgage debt, is not dowable of the whole proceeds, but only of the surplus remaining after satisfying the mortgage.”

This case in Nichols v. French, 83 Ohio St. 162 [93 N. E. Rep. 897], is affirmed, and the court makes the distinction in the opinion in this ease that we have already adverted to, that it is the quantum of the estate at the time of the marriage or during coverture that must determine the measure of the widow’s dower in his land; and if the husband at the time of marriage or during coverture owned the entire fee, then, if the mortgage was given as in the McClave case, the widow is entitled, if she signs the mortgage, to have the husband’s estate first exhausted, as she stands in the light of a surety. But if at the time of marriage the husband owns only an equity of redemption, her dower interest is measured by the beneficial interest he has. Hers can rise no higher than his. These distinguishing points, as I have said, were pointed out by Judge Shauck, in Nichols v. French, supra, in the opinion in the case I have already read from, and the syllabus in the Culver case is one which they followed in that case.

In the case of Hickey v. Conine, supra, we are able to see that there is quite a distinction between that ease and the case at bar. In that case the purchase money mortgage that existed upon the premises was not due, and, therefore, the legal title had not passed from the mortgagor to the mortgagee, and the circuit court mentions that fact. In the opinion on page 374 it is said:

"As against the mortgagee and all the world the legal title to the mortgaged premises, until condition broken, remains in the mortgagor. It is only after the condition of the-mortgage is broken that the legal title as between the mortgagor and mortgagee vests in the mortgagee. ' Nothing vests, the legal title in the mortgagee but the breach of the condition of the mortgage * * . In the ease at bar the conditions: of the mortgages were not broken,, and as against the mortgagee and all else the legal title remained in the mortgagor, and this whether the debt secured by it was for purchase money or otherwise. No action was pending or could be commenced' to foreclose this mortgage or to recover possession in ejectment under it, and no proceedings could be taken or had to enforce the vendor’s lien for the purchase money, the debt to which the mortgage was incident.”

This case was affirmed by the Supreme Court, and upon reason and logic it sustains the position taken by counsel for plaintiff in error in this case, but in facts that I have pointed out it does not. The Supreme Court simply affirmed the case by a divided court, and we can hardly take it as an authority in overruling the principles laid down in the cases pi’eviously decided by our Supreme Court. In fact, the elementary principles in regard to dower, inchoate or otherwise, of the widow in lands of her deceased husband, there has been some confusion in the authorities arising out of the fact that the cases are numerous where the controversy was in regard to purchase money mortgages, and the rule obtaining in Ohio, that the widow can not cláim dower as against the purchase, money mortgage, that the husband never has such seizure, when the-land is conveyed to him by the vendor, and he executes a mortgage back to the vendor for the purchase money, that the vendee never has such seizure in law that the dower of the wife can attach. But this is limited and restricted to the purchase-money mortgage alone. Take the purchase money mortgages out of the question and the legal title still remains in the vendee and is of such a character that dower can attach.

It is well settled in Ohio as against purchase money mortgages that the husband has no such seizure as that dowér can attach.

Upon the whole, we are satisfied that the courts below were right on principle and authority in denying to the widow here a calculation of her dower based upon the whole purchase money of this land, but should be confined to the surplus after the payment of the mortgage.

The judgment of the lower court will be affirmed.

Jones and Sayre, JJ., concur.

       Affirmed, no op., Kern v. Kern, 87 O. S. 481.


author: WALTERS, J.

text:
    INTOXICATING LIQUORS.
    [Athens (4th) Court of Appeals,
    1913.]
    Jones, Walters and Sayre, JJ.
    William Betts v. State of Ohio.
    Barkeeper in Saloon During. Closed Period Violates Ordinance Notwithstanding he was There Alone Cleaning and Preparing Same for Open Hours.
    Where an oruinance of a city provided, “that it shall be unlawful for any person to permit or allow any place where intoxicating liquors are sold as a beverage to be open or remain open between the hours of 10 o’clock P. M. of any day and 6 o’clock of the next succeeding day,” and the bar-keeper of a proprietor of a saloon in said city entered his saloon before 6 o’clock, locked the door, allowed no one to enter until 6 o’clock, nor did he before that time sell, offer for sale, furnish or give away any liquor or other goods, but was engaged in cleaning up the saloon, icing the liquors therein preparatory to opening; held, that he was rightfully convicted of a violation of the ordinance.
    [Syllabus by the court.]
    Error to common pleas court.

      I. M. Foster $ for plaintiff in error:
    “Keeping open,” what constitutes. Seelig v. State, 43 Ark. 96; Carr v. State, 34 Ark. 448 [36 Am. Rep. 15]; State v. Miller, 68 Conn. 373 [36 Atl. Rep. 795]; State v. Gregory, 47 Conn. 277; Commonwealth v. Harrison, 77 Mass. (11 Gray) 308; Lynch v. People, 16 Mich. 477; State v. Jacques, 69 N. H. 220 [40 Atl. Rep. 398]; Pichará v. Bayonne, 61 N. J. Law 496 [39 Atl. Rep. 708]; 24 Cyc. 792; Harris v. People, 21 Colo. 95 [39 Pac. Rep. 1084]; Kroer v. People, 78 111. 294; People v. Mathis, 50 N. E. Rep. 398 (Ind. App.) ; People v. Crowley, 90 Mich. 366 [51 N. E. Rep. 517]; People v. Beller, 73 Mich. 640 [41 N. E. Rep. 827]; People v. Cummerford, 58 Mich. 328 [25 N. W. Rep. 203]; Munzébrock v. State, 10 Dec. Re. 277 (19 Bull. 389) ; State v. Stumpf, 52 Bull. 351 (5 N. P. N. S. 137) ; Patten v. Ceniralia, 47 111. 370; Weidman v. People, 7 111. App. 38; Purefoy v. People, 65 111. App. 167; Lederer v. State, 3 Cire. Dec. 303 (5 R. 623) ; People v. Lundell, 136 Mich. 303 [99 N. W. Rep. 12]; State v. Heihel, 54 Ohio St. 321 [43 N. E. Rep. 328]; 29 Am. Cent. Dig. 891; Effinger v. State, 6 Cire. Dec. 417 (9 R. 376) ; 2 Words & Phrases, 1231; Lederer v. State, 11 Dee. Re. 31 (24 Bull. 153); Miller v. State, 68 Miss. 533 [9 So. Rep. 289].

      Emmet Keena/n, for defendant in error.
   WALTERS, J.

The case in the court of appeals was submitted on an agreed statement of facts, which shows that on August 10, 1912, the plaintiff in error was a bartender in the employ of the proprietor of a certain saloon located in the city of Nelson-ville, Ohio, where intoxicating liquors were sold as a beverage and that between 5:30 A. M. and 6 o ’clock A. M. of said day, said Betts entered the room in which said saloon was situated for the sole purpose of cleaning out said room, to have it in readiness at 6 A. M. to'receive any customers that might apply for admission and locked the door after him. The plaintiff in error besides cleaning out, chipped ice for the purpose of placing it upon his liquors for sale, which was also done prior to 6 o’clock A. M. on said morning. That said plaintiff in error did not, prior to 6 o’clock A. M. on said day sell, offer for sale, furnish, or give away any liquor, or other goods, nor did said Betts permit any person to enter said place of business prior to 6 o’clock A. M. except a police officer who entered upon official business.

Section 2 of the ordinance of said city reads as follows:

“That it shall be unlawful for any person or persons to cause, permit or allow any place where any intoxicating liquors are sold as a beverage, furnished or given away as a beverage, to be open or remain open between the hours of 10 P. M. of any day and 6 o ’clock of the next succeeding day. ’ ’

This ordinance adopts the language of the statute in relation to Sunday closing and therefore any decisions upon the subject of Sunday closing would equally apply to this ordinance.

The court is only required, therefore, to determine whether this section of the ordinance was violated, and we are called upon to give a construction to the same in the light of the agreed facts.

The learned counsel for plaintiff in error cites the case of Munzebrock v. State, 10 Dec. Re. 277 (19 Bull. 389), and seems to rely greatly upon it. It was decided in 1886 by Judge Robertson of the Hamilton county common pleas in the second syllabus as follows:

“In the law against selling liquor on Sunday (85 O. L. 260) a prohibition against keeping ‘open’ means open in such a manner as to induce the public to enter, as on other days, and does not make penal the opening of the door under any and all circumstances.”

In the opinion, the following language is found:

“The word (open) is to be construed reasonably in view of all the circumstances; and so construing the words in this statute, it would seem that keeping open such places on Sunday in such manner as to induce or permit the public to enter on Sunday as on other days of the week, or opening the place so as by implication to hold out that the place was open for the conducting of business or the sale of liquor, is within the prohibition of the act. ’ ’

This statement of the law was held to be incorrect by Noble, J., in Molitor v. State, 10 Dec. Re. 324 (20 Bull. 323), common pleas court, Cuyahoga county, and holding that the offense is complete, irrespective of any inducement offered to the public to enter or any intention whatever on the part of the person so entering. This case was affirmed by both the circuit court and the Supreme Court, the latter without report.

Effinger v. State, 6 Circ. Dec. 417 (9 R. 376). In this case, Effinger, some members of his family and others, not members of his family, went into- his saloon on Sunday to abate a nuisance which had been committed by his dog. No liquors were either drank or given away; it was held that the fact that he and others were in the saloon was prima facie a violation of the statute and it was not necessary to show sales or an intention to make sales and that the existence of a nuisance and the necessity for its removal must be shown by the defendant by a preponderance of the evidence. This ease would seem to he indirect authority for the proposition that opening and entering is a violation of the statute.

People v. Waldvogel, 49 Mich. 337 [13 N. W. Rep. 620]. This was decided by the Supreme Court of Michigan and the syllabus is as follows:

“Act 259 of 1881 requiring saloons to be kept closed on Sunday is violated if a saloon is allowed to be open whether for the sale of liquor, for cleaning up or for any other business purpose and the question of the proprietor’s intent is immaterial. ’ ’

The defendant below in this case was in his saloon on Sunday and he and others assisting him were engaged in 'washing and cleaning the saloon. No liquor was sold nor was there any intention of selling any. The court was requested to instruct the jury, that unless they found the defendant was in Ms place of business for the purpose of carrying on his business of liquor selling, they must acquit; also that if they’found he was there for the purpose of cleaning out his saloon and not for dealing in liquor selling, the criminal intent is wanting and the defendant must be acquitted. These requests were refused and the court instructed the jury, that if the defendant kept Ms saloon open, or had it open so that the public could enter if they chose, he would be guilty. In the opinion the Supreme Court says:

“The question of intent is wholly immaterial under the statute. The legislature in order to guard against the danger of sales being made has directed that places where liquors are kept should be closed, so that no opportunity to violate by making sales should be afforded. The person who engages in the business of carrying on a saloon must at his peril see that no necessity exists fdr keeping the same open by carrying on any other business therein which would require the doors to be open, or for persons to enter therein. The places named must be closed and cannot by the proprietor thereof be kept open for any business purpose of any kind.”

This case was affirmed in People v. Higgins, 56 Mich. 159 [22 N. W. Rep. 309]. In this case, the court uses the following language in the opinion:

“We hold in People v. Waldvogel, supra, that beeping a saloon open on Sunday although for the purpose of cleaning or scrubbing it out, was a violation of the statute. There were no qualifying words in the statute and no exceptions in favor of any business whether foreign to the business of saloon beeping or not; the object of the statute being to cut off all subterfuges or excuses for violation of this statutory inhibition.”

People v. Lundell, 136 Mich. 303 [99 N. W. Rep. 12]. This was also a Michigan case and the syllabus of the same was as follows:

“A person engaged in business in a building in which a saloon was located entered the saloon during prohibitory hours to remove a defect in a water pipe and prevent water from escaping into the basement. After being in, he, without request, swept out the saloon, and then remained talking with the bartender a few minutes; held that the barkeeper in permitting him to remain in the saloon after the time required to rep'air the water pipe was keeping the saloon open contrary to law.”

People v. Mathis, 50 N. E. Rep. 398 (Ind. App.), Supreme Court of Indiana. The syllabus of this case is as follows:

“Under acts 1895, page 248, Secs. 3, 10, providing for the regulation of sales of liquor, the permitting a person, not a. member of the saloon proprietor’s family, to be in his place of business on Sunday is of itself an offense.

People v. Cummerford, 58 Mich. 328 [25 N. W. Rep. 203]. In this ease which was also decided by the Supreme Court of Michigan, the following doctrine is laid down in the syllabus:

“When the statute requires the doors of a saloon to be closed, it means that no one shall be inside or get inside.”

In the opinion in this case, the court uses this language:

“It isn’t alone the intent or purpose for which the saloon is kept open that is offensive to the law, but also the opportunity furnished persons to obtain liquors at hours and on days prohibited by the statute.”

The Supreme Court of Ohio, in the case of State v. Heibel, 54 Ohio St. 321, evidently follows the law as laid down by the Supreme Court of Michigan in the eases we have just,quoted from there. In this case, the evidence on behalf of the state tended to show that the proprietor of a saloon admitted two persons on Sunday, that they remained there for some hours at work varnishing woodwork and that they drank beer for which they did not pay. Evidence was also introduced tending to show that several other persons were admitted to defendant’s saloon on the day named for the purpose of buying oysters and oysters were sold to them. The defendant offered no evidence. On the trial of the case, instructions were asked to be given to the jury and which were given; which indicated the opinion of the trial judge to be, that the regular business should be closed. The Supreme Court in the opinion says of these instructions :

“The instructions given and the refusal to instruct as requested introduced a question as to defendant’s purpose which the terms of the statute do not permit. ’ ’

People v. Cummerford, supra. While the case here decided by our Supreme Court in its facts is not exactly like the case at bar, yet the court does cite the Michigan case as authority for its decision and then follows by the Supreme Court in the opinion the following important declaration:

“That emergencies might arise would make it lawful for the proprietor and others to enter a saloon upon Sunday maybe a necessary inference from the general purpose of the statute. But there was no suggestion of such emergency in this case.” This language carries with it.by implication that unless some emergency arises which would make it lawful for the proprietor or others to enter the saloon within the prohibited hours, that there would be a violation of the ordinance. ,

In the case at bar, there was no suggestion of any emergency. On the contrary, however, in addition to the mere entering, there was the admitted fact, that after entrance, the barkeeper was engaged in cleaning and scrubbing the saloon, and icing the liquors, so that he was at that time within the prohibited hours engaged in doing things which were necessarily incidental to the carrying on of the business. Where the ordinance makes it unlawful to be open, it means it shall be closed and if it is closed and one enters, it has not been closed or remained so. The purpose of the legislature in passing the statute in regard to Sunday closing and the purpose of the municipal council in this case in passing the ordinance was undoubtedly to so far as possible lessen the evils resulting from the traffic in intoxicating liquors, and if the proprietors of saloons under the language employed in this ordinance can by themselves or by their agents enter their places of business within the prohibited hours for the purpose of cleaning out or scrubbing or repairing, or icing their goods, or doing the other various things in their place of business, which might seem to be required, then it would necessitate a very wide operation, close observation and surveillance on the part of the police officers to discover infractions of law which might be committed within such places while persons were so permitted to be engaged in those things during the closing hours.

The ordinance makes no exceptions in its language; we can read none into it and we think it means just what it says.

The judgment of the court of common pleas will be affirmed.

Jones and Sayre, JJ., concur.


author: TAGGART, J.

text:
    INSURANCE.
    [Richland (5th) Circuit Court,
    1912.]
    Taggart, Powell and Voorhees, JJ.

      E. B. Gump v. National Union Fire Ins. Co.
    1.' Proofs of Loss Made Out by Attorney for Nonresident Client for Whom he had Secured Insurance Held Sufficient.
    Proofs of loss made out and verified by an attorney at law for a nonresident client for whom he had negotiated the policy in question are sufficient, especially since assured having no knowledge of the transaction could not reasonably be expected to make such proofs.
    2. Condition of Occupancy Operation of Manufacturing Property at Time of Loss and Execution not Vacancy Defeating Recovery on Policy.
    The condition of insured manufacturing property as to occupancy and operation at the time of loss by fire, being the same as when the policy was written and delivered, recovery thereon cannot be defeated by policy clauses against vacancy of the property or nonoperating of the plant.
    3. Keeping Gasoline in Pint Bottle Near Gasoline Engine not Sufficiently Hazardous to Defeat Recovery on Policy.
    Keeping gasoline in a pint bottle on a shelf near a gasoline engine to start it, the main quantity of gasoline being contained in a can in a separate building, is a keeping in small quantity and for incidental use and not a violation of a policy inhibition against keeping gasoline on the premises, which insurer's agent knew were occupied for manufacturing purposes and operated by such 'engine.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Jesse E. La Doiu and W. S. Kerr, for plaintiff in error:
    Vacancy clause in the contract, Eureka F. & M. Ins. Co. v. Baldwin, 62 Ohio St. 368 [57 N. E. Rep. 57]; Germania Fire Ins. Co. v. Milligan, 76 Ohio St. 543 [81 N. E. Rep. 980; 12 L. R. A. (N. S.) 456; 118 Am. St. Rep. 891]; Union Cent. L. Ins. Co. v. Hook, 62 Ohio St. 256 [56 N. E. Rep. 906].
    Verification of proof of loss, German Fire Ins. Co. v. Grunert, 112 111. 68; Hartford Protection Ins. Co. v. Harmen, 2 Ohio St. 453 [59 Am. Dee. 684]; Globe Ins. Co. v. Boyle, 21 Ohio St. 120; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 40 [35. Am. Rep. 589] ; Dun v. Insurance Co. 10 Dec. 667 (8 N. P. 612); affirmed, no op., Insurance Co. v. Dun, 52 Ohio St. 639; Connecticut Eire Ins. Co. v. Hamilton, 9 O. P. D. 546; Hamilton v. Insurance Co. 8 O. P. D. 137 [61 Fed: Rep. 378] ; Hamilton v. Insurance Co. 7 O. F. D. 14. [46 Fed. Rep. 42] ; Dailey v. Hope, 57 Me. 474; Patterson v. Insurance Co. 64 Me. 500; Jones v. Insurance Co. 36 N. J. L. (7 Vroom.) 29 [13 Am. Rep. 405]; Eliot Five Cents Sav. Banlt v. Assurance Co. 142 Mass. 142 [7 N. E. Rep. 550]; Turley v. Insurance Co. 25 "Wend. (N. Y.) 374; German-American Ins. Co. v. Paul, 5 Ind. T. 150 [83 S. W. Rep. 60]; Findeisen v. Insurance Co. 57 Yt. 520; Birmingham Fire Ins. Co. v. PulvCr, 126 111. 329 [18 N. E. Rep. 804; 9 Am. St. Rep. 598]; Kenton Ins. Co. v. Wigginton, 89 Ky. 330 [12 S. W. Rep. 668; 7 L. R. A. 81] ; MartUnson v. Insurance Co. 64 Mich. 372 [31 N. W. Rep. 291]; Hanover Fire Ins. Co. v. Gustin, 40 Neb. 828 [59 N. W. Rep. 375]; Myers v. Insurance Co. 72 la. 176 [33 N. W. Rep. 453]; State> Ins. Co. v. Todd, 83 Pa. St. 272.
    Use of gasoline contrary to the policy, West v. Insurance Co. 27 Ohio St. 9 [22 Am. Rep. 294]; Williams v. Insurance Co. -54 N. Y. 569 [13 Am. Rep. 620]; Buchanan v. Insurance Co. 61 N. Y. 26; Me-ars v. Insurance Co. 92 Pa. St. 15 [37 Am. Rep. 647]; Arnold v. Insurance Co. 148 Cal. 660^ [84 Pac. Rep. 182; 25 L. R. A. (N. S.) 6]; Smith v. Insurance Co. 107 Mich. 270 [65 N. W. Rep. 236; 30 L. R. A. 368]; Springfield Fire & M. Ins. Co. v. Wade, 95 Tex. 598 [68 S. W. Rep. 977; 58 L. R. A. 714; 93 Am. St. Rep. 870] ; American Cent. Ins. Co. v. Green, 16 Tex. Civ. App. 531 [41 S. W. Rep. 74]; LaForce v. Insurance Co. 43 Mo. App. 518; Columbia Planing Mill Co. v. Insurance Co. 59 Mo. App. 204; Humboldt v. Mears, 29 Pitts. Leg. J. 365; Boyer v. Insurance Co. 124 Mich. 455 [83 N. W. Rep. 124; 83 Am. St. Rep. 338]; Wheeler v. Insurance Co. 62 N. H. 450 [13 Am. St. Rep. 582] ; Szymlcus v. Insurance Co. 114 111. App. 401; Bentley v. Insurance Co. 191 Pa. St. 276 [43 Atl. Rep. 209]; Gunther v. Insurance Co. 85 Fed. Rep. 846; Ban v. Insurance Co. 50 App. Div. 428 [64 N. Y. Supp. 290];
      Davis v. Furniture Co. 102 Wis. 394 [78 N. W. Rep. 596]; Putnam v. Insurance Co. 4. Fed. Rep. 753; American Cent. Ins. Co. v. Chancey, 127 S. W. Rep. 577 (Tex. Civ." App.) ; Angier v. Insurance Co. 10 S. D. 82 [71 N. W. Rep. 761; 66 Am. St. Rep. 685]; Ohio Farmers’ Ins. Co. v. Burget, 65 Ohio St. 119 [61 N. E. Rep. 712; 55 L. R. A. 825;, 87 Am. St. Rep. 596].

      Brucker & Yoegele, for defendant in error:
    Defense of vacancy, Germania Fire Ins. Co. v. Werner, 76 Ohio St. 543 [81 N. E. Rep. 980; 12 L. R. A. (N. S.) 456; 118 Am. St. Rep. 891]; Eureka Fire Ins. Co. v. Baldivin, 62 Ohio St. 368 [57 N. E. Rep. 57]; Mitchell v. Insurance Co. 6 Dec. 420 (4 N. P. 386) ; Harris v. Insurance Co. 18 Ohio 116 [51 Am. Dec. 448]; Johnson v. Insurance Co. 66 Ohio St. 6 [63 N. E. Rep. 610]; Union Cent. Life Ins. Co. v. Hook, 62 Ohio St. 256 [56 N. E. Rep. 906] ; Northern Assur. Co. v. Building Assn. 183 U. S. 308 [22 Sup. Ct. Rep. 133; 46 L. Ed. 213]; Kentucky Y. M. & C. Co. v. Insurance Co. 146 Fed. Rep. 696 [77 C. C. A. 121] ; Dewees v. Insurance Co. 35 N. J. L. 366; United Firemen’s Ins. Go. v. Thomas, 82 Fed. Rep. 406 [27 C. C. A. 42; 53 U. S. App. 517; 47 L. R. A. 450]; Baumgartel v. Insurance Co. 136 N. Y. 547 [32 N. E. Rep. 990]; Allen v. Insurance Co. 123 N. Y. 6 [25 N. E. Rep. 309]; Quinlan v. Insurance Co. 133 N. Y. 356 [31 N. E. Rep. 31; 28 Am. St. Rep. 645]; Messel~back v. Norman, 122 N. Y. 583 [26 N. .E. Rep. 34]; Ayres v. Insurance Co. 17 Iowa 176 [85 Am. Dec. 553].
    Gasoline kept contrary to the provisions of the policy, Badger v. Platts, 68 N. II. 222 [44 Atl. Rep. 296; 73 L. R. A. 572; 73 Am. St. Rep. 572]; Wheeler v. Insurance Co. 62 N. H. 326 [13 Am. St. Rep. 582]; Cobb v. Insurance Co. 17 Kan. 492; Western Assur. Co. v. Rector, 85 Ky. 294 [3 S. W. Rep. 415]; Davern v. Insurance Co. 7 La. Ann. 344; Beer v. Insurance Go. 39 Ohio St. 109; People’s Ins. Co. v. Kuhn, 12 Heisk (Tenn.) 515.
    Proof of loss made by attorney, German Fire Ins. Co. v. Crunert, 112 111. 68 [1 N. E. Rep. 113]; Ayres v. Insurance Co. 17 Iowa 176 [85 Am. Dec. 553]; Farmer’s Mut. Ins. Co. v. Graybill, 74 Pa. St. 17; O’Connor v. Insurance Co. 31 Wis. 160; Northwestern Ins. Co. v. Atkins, 3 Bush (Ky.) 328; Sims v. Insurance Co. 47 Mo. 54 [4 Am. Rep. 311].

      Affirmed, no op., 86 O. S. 325.

   TAGGART, J.

The plaintiff in error was the plaintiff in the court of common pleas and the defendant in error was the defendant therein. The plaintiff, in her petition and amendment thereto, sought to recover upon a policy of insurance which had theretofore been issued to her by the defendant National Union Fire Insurance Co.

The answer which was interposed by the insurance company contained several defenses, the first, in substance, being a general denial; and the second being a provision of the policy which, among other things, provided: “Or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises, benzine, benzole, dynamite, ether, fireworks, gasoline,” that the policy should be void.

We do not quote the entire provision set out but so much thereof as is necessary to indicate our view of the case. The defendant further says that the fire was caused by the use of gasoline in the engine room, and that there was no consent to the use of or the keeping of gasoline in said building thereby increasing the hazard.

The third defense set forth another condition of the policy to the effect that, in case the property insured was a manufacturing establishment and was not operated at certain periods of the day or night, the policy became void; and then it is averred that this condition was violated.

The defendant for a fourth defense avers that there had been no proper proofs of loss furnished agreeably to certain other provisions of the policy.

Upon the averments in the answer being denied in the reply the case proceeded to trial, and, at the close of all the evidence in the case, upon motion of the defendant, the court directed the jury to return a verdict for the defendant. Error is now prosecuted to this court to reverse the judgment of the court of common pleas.

It is claimed that no proper proofs of loss were furnished in this case, that the proofs furnished were sworn to by W. S. Kerr, attorney in fact for the plaintiff, and it is contended that this cannot be done. But it appears from this record that the plaintiff was a nonresident of the state and had been such for some time previous to the fire; that she had no personal knowledge of the facts in the case, in fact, the record discloses that the policy was taken out by some one authorized to do so by her, that the fire occurred subsequent thereto and under circumstances that she could have no knowledge or information concerning the same. It does further appear from the record that the person making the proof of loss was duly authorized as attorney in fact to transact the business for the plaintiff. Now, if the proofs of loss could not be made out and verified as the proofs in this ease were made out and verified, we think that it would be substantially impossible to make proofs of loss in this character of cases, or where the facts are similar to the facts in this case. If the plaintiff’s attorney in fact could not make these proofs of loss, it does not appear that she had any other person in the state of Ohio who could make these proofs of loss as agent or otherwise, and, as we have indicated, the plaintiff herself could not reasonably be expected to make these proofs of loss and verify the same, when she had no knowledge of the transaction. So that, so far as the contention is made that the proofs of loss are not sufficient, under the defense set out in the answer, we think the record fully sustains the claim of the plaintiff in error that proper proofs of loss were made out and submitted.

As to the next contention that the property became vacant, under another defense set out in the answer of the defendant, we think that this contention cannot obtain, under the state of this record. It appears from the proof in this case that the condition of this property that was covered by the insurance was substantially the same as when the policy was written and delivered. We do not think it fails within the clause of the provision of the policy that this manufacturing establishment, ceased to be operated for more than ten consecutive days. It. was not operated nor had it become vacant after the issuance and delivery of the policy. Its condition remained substantially the same as when the risk was assumed by the defendant company.

But one other question then remains in this case: was this policy rendered void, under the provisions in the policy prohibiting gasoline to be kept, used, or allowed in the above described premises? The only proof that we can discover in this record is- found on page 48, wherein the engineer testifies that they used to start the engine with gasoline, and the gasoline was kept outside of the building in a building by itself, brought in there in a pint bottle and set on a shelf. The pint bottle was kept near the engine on the shelf probably five or six feet from the engine. And on cross-examination on pages 50, 51, he says that the gasoline was kept in a pint bottle. He does not say how much there was of this gasoline and when asked if he had not, before this time, testified that there was about half a pint, his answer is that he does not remember; and when asked if he had not theretofore testified that the gasoline had nothing to do with the fire, his memory seems to be somewhat at fault in respect to that matter.

Another witness, on page 41, testified that they used a little bit, “I don’t know how much, probably half an ounce, to cause the first explosion in starting the engine, that was all the gasoline used.” He further testifies that the gasoline was kept in the oil house and they used to have a can to bring it into the engine house, and that the can was a gallon can, but he does not know what disposition was made of this gallon can, but gives his opinion that it must have been kept in the engine house. When asked to give his best judgment in the matter, he hasn’t any best judgment, he answers.

So that, as far as the evidence in this case is concerned, it is exceedingly meager and not of that persuasive character that we think would authorize the court in directing a verdict and saying, as a matter of law, that the provisions of this policy had been violated, according to its intent or letter. The record is wholly silent as to any knowledge by the insured as to the use of any gasoline in or about the premises, or the giving of any authority to any one in the occupation of said premises for the keeping, using or allowing the use of gasoline therein.

It does appear in this record that the agent of the company knew that the premises were occupied for certain manufacturing purposes and that the power was derived from the engine in the adjoining building.

Now we think the principle laid down in the note to the case, Boyer v. Insurance Co. 124 Mich. 455 [83 N. W. Rep. 124; 83 Am. St. Rep. 343n], is controlling in this case: “The use by an assured of naphtha, or benzine on the insured premises, when the use or keeping of such articles is stipulated against in the policy, voids the contract of insurance, unless such use is incidental to the business, or is in small quantities for a special and not dangerous purpose,” and this is fully sustained in the following cases: Arnold v. Insurance Co. 148 Cal. 660 [84 Pac. Rep. 182; 25 L. R. A. (N. S.) 6]; Smith v. Insurance Co. 107 Mich. 270 [65 N. W. Rep. 236; 30 L. R. A. 368]; Springfield Fire & M. Ins. Co. v. Wade, 95 Tex. 598 [68 S. W. Rep. 977; 58 L. R. A. 714; 93 Am. St. Rep. 870]; American Cent. Ins. Co. v. Green, 16 Tex. Civ. App. 531 [41 S. W. Rep. 74].

We think that this record discloses clearly that the gasoline that was on these premises was for such use as was incidental to the business, and in such small quantity, “for a special and not dangerous purpose” as must have been in contemplation of the parties when the insurance was written, and was not a “beeping or using or allowing to be kept or used gasoline,” within the provisions of the policy; and we think the court was in error in directing a verdict for the defendant.

For the error of the court in directing a verdict, the judgment of the court of common pleas is reversed and remanded for further proceedings according to law. Exceptions may be noted.

Powell and Voorhees, JJ., concur.